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containing a libel against any man.' This denial of parliamentary privilege was met by a declaration of the Commons that the power of publishing their proceedings and reports was 'an essential incident of the constitutional functions of Parliament,' and that any person instituting a suit as to, or any Court deciding on, a matter of privilege contrary to the determination of either House, would be guilty of a breach of privilege. Stockdale at once proceeded to bring other actions, and on the issue whether the printers were justified by the privilege and order of the House, the Court of Queen's Bench unanimously decided against them. The Sheriffs levied the amount of damages, and the House vindicated its privileges by committing Stockdale and his attorney Howard, and also the Sheriffs. While in prison, Stockdale repeated his offence by bringing other actions, for which his attorney's son and clerk were committed ; and the deadlock was at length only removed by the passing of an Act of Parliament providing that all Right of such actions should be stayed on the production of a certificate or to publish affidavit that the paper complained of had been published by the order by Act 3 & 4 of either House of Parliament. The right of a newspaper to publish Vict. c. 9. a fair and faithful report of the debates and proceedings in Parliament without any authorisation from either House, was determined in 1868 by the decision of the Court of Queen's Bench, in Wason v. Walter, Wason v. Walter, that no action for libel would lie against the proprietor of the Times' 1362. for so doing.1

IV. Growth of Religious Liberty.

Parliament

established

ration and

growth of Religious Liberty.

Protestant Nonconformity, fostered instead of being crushed by the (IV) Tolevery efforts of the Church to enforce unity, had gained considerably in numbers, organisation, and political weight, during the reigns of the last two Stuarts; and the important services of the Dissenters, in combining with the Church to bring about the Revolution of 1688, were

1 Stockdale v. Hansard, 9 Ad. & E. 1 (1839), [Denman's Broom's Const. Law, p. 875, and Note, p. 968.]

Case of the Sheriff of Middlesex, 11 Ad. & E. 273 (1840); [Denman's Broom's Const. Law, p. 961.]

33 & 4 Vict. c. 9. Subsequently Stockdale's attorney, Howard, brought two actions against the officers of the House, which, on the grounds of excess of authority and informality in the Speaker's warrant, were given in the plaintiff's favour. But on a writ of error the judgment in the second action was reversed by the Court of Exchequer Chamber. Howard v. Gosset, 10 Q. B. 352; [Denman's Broom's Const. Law, p. 970.

Wason v. Walter, 8 Best & Smith, 671. [A still more famous case of Privilege in which The Times has been concerned is that which, arising out of the publication in The Times of Letters affecting Mr. Parnell's conduct in connection with Irish affairs, has recently given rise to a protracted Trial before a Special Commission, as to which cf. Law Magazine and Review, No, cclxix., p. 394, for August, 1888.-C.]

Teleration Act, 1 Will & Mary,

C. 18.

Toleration only partially esta blished.

rewarded by the Toleration Act. This famous statute was far indeed from granting religious freedom; it repealed none of the Acts by which conformity with the Church of England was exacted, and left the Civil disabilities of Nonconformists under the Corporation Act of 1661 and the Test Act of 1673' intact; but it recognised, for the first time, the right of public worship beyond the pale of the State Church, by exempting from the penalties of existing statutes against separate conventicles and absence from church, all persons who should take the oaths of allegiance and supremacy, and subscribe a declaration against Transubstantiation. Dissenting ministers were relieved from the restrictions imposed by the Act of Uniformity and the Conventicle Act upon the administration of the sacrament and preaching in meetings, on condition that, in addition to taking the oaths, they signed the 39 Articles, with the exception of three and part of a fourth.3 Quakers were allowed to make an affirmation in lieu of taking the oaths. All meeting-houses were required to be registered, but when registered their congregations were protected from molestation.

The principle of Religious Toleration was as yet, however, but imperfectly established.' Roman Catholics and Unitarians were specially excepted from the Act, and were soon afterwards subjected to additional penalties. Unitarians were disabled from holding any office ecclesiastical, civil or military; and Roman Catholics were placed under most severe restrictions. In 1700 an Act was passed offering a reward of £100 for the discovery of any Roman Catholic priest exercising the functions of his office, and subjecting him to perpetual imprisonment. By the same Act every Roman Catholic was declared incapable of inheriting or purchasing land, unless he abjured his religion upon oath, and on his refusal, his property was vested, during his life, in his next of kin, being a Protestant. He was also prohibited from sending his children abroad to be educated. Temporary During the Tory ascendency of the last four years of Queen Anne's

reaction

under Anne.

1 Supra, p. 523.

Supra, PP. 525-527.

3 The articles excepted (as expressing the distinctive doctrines of the Church) were Arts. 34, 35, 36, and part of Art. 20.

1 Will. & Mary, c. 18, confirmed by 10 Anne, c. 2.

5 [The Scottish Episcopal Church, which was established at the time of the accession of William III., was disestablished, not on account of any theological partialities of William himself, Lut because of the general adherence of its bishops and clergy, and a considerable portion of the laity, to the cause of the exiled House of Stuart. Heavy penal disabilities were laid on the Episcopalians in Scotland, which were only partially removed in 1792.-C.]

6 9 Will. III. c. 35.

7 I Will. & Mary, st. 2, c. I.

8 11 & 12 Will. III. c. 4; 13 Will. III. c. 6.

Occasional

and the

and 1713.

reign, serious inroads were made upon the toleration formerly granted Acts against to Protestant Nonconformists, more especially by two statutes, the Conformity Occasional Conformity Act,' and the Schism Act. The former, growth of passed in 1711, was intended to prevent the evasion of the Test Act Schism, 1711 by occasional conformity on the part of those Dissenters who, while adhering to their own form of worship, did not hesitate occasionally to receive the sacrament according to the rites of the Established Church. The other Act, passed in 1713, for 'preventing the growth of Schism,' was framed in the true persecuting spirit, to deprive Dissenters of the means of educating their children in their own religious beliefs, by crushing all Nonconformist schools, some of which had already attained a certain degree of eminence. These reactionary statutes were, however, both repealed in 1718, under George I., and from the beginning of the reign of George II. civil offices were practically thrown open to Protestant Dissenters, by means of the Annual Indemnity Acts passed in favour of those who Annual Inhad failed to qualify themselves under the Corporation and Test Acts under Acts. The severe laws against the Roman Catholics, although George 11 enforced by a Proclamation of Queen Anne in 1711, by a further Act of Parliament after the Rebellion of 1715, and by another Royal Proclamation after the Rebellion of 1745, were also greatly mitigated in practice.

demnity

In 1753, a fresh restriction was imposed upon Dissenters by Lord Lord Hard

110 Anne, c. 5.

12 Anne, c. 7.

[This practice, which as Mr. Minto says, 'had grown up after the Revolution, and had attracted very little notice until a Dissenting Lord Mayor, after attending church one Sunday forenoon, went in the afternoon with all the insignia of his office to a Conventicle,' was severely criticised by Defoe in a Pamphlet on Occasional Conformity, published in 1698, the year after Sir Humphrey Edwin had given the special cause of offence which attracted public attention and Defoe's wrath. Cf. English Men of Letters. Defoe. By W. Minto. Lond. 1879, pp. 19Occasional Conformity, said Defoe, with a certain rigorous logic, was either a sinful act in itself, or else his dissenting before was sinful. Yet when a Bill was subsequently introduced to prohibit Occasional Conformity, Defoe condemned it as a breach of the Toleration Act, and a measure of persecution.-C.]

20.

5 Geo. I. c. 4. In 1697, Sir Humphrey Edwin, Lord Mayor of London, and a Presbyterian, gave great offence to churchmen by going in civic state to a Dissenting Meeting-house. To prevent any repetition of the scandal, the Act of 5 Geo. I. (now repealed by the Statute Law Revision Act, 1871), while repealing the Occasional Conformity Act, enacted that no mayor, bailiff, or other magistrate should attend any public meeting for religious worship, other than that of the Church of England, in the gown or with the ensigns of his office, on pain of being disqualified to bear any public office whatsoever.

The first Indeninity Act was passed in 1727. Since then, with a few exceptions, similar Acts were annually passed, until the repeal of the Test and Corporation Acts in 1828.

1 Geo. I. c. 55.

C.H.

SS

wicke's Mar

riage Act,

1753.

Relaxation of religious penal code under George III.

Principle of
Toleration
upheld by
House of

Lords in the

case of the City of London and

the Dissen

ters, 1707.

Hardwicke's Marriage Act,' the immediate object of which was to prevent clandestine marriages. Dissenters had previously been allowed to be married in their own places of worship; but by this Act all marriages, except those of Jews and Quakers, were required to be solemnised in a church, by ministers of the Establishment and according to its ritual.

It was not, indeed, till the reign of George III., when the Jacobitism of the Roman Catholics had become lukewarm and innocuous, and the preaching of Wesley and Whitefield had stimulated and revived the Dissenting sects, that the gradual relaxation of the religious penal code was commenced in earnest. Early in this reign the broad principles of Toleration were Judicially affirmed by the House of Lords, in the case of the City of London and the Dissenters. It is now no crime,' said Lord Mansfield in moving the Judgment of the House, 'for a man to say he is a Dissenter; nor is it any crime for him not to take the sacrament according to the rites of the Church of England; nay, the crime is, if he does it contrary to the dictates of his conscience.' 'Persecution for a sincere, though erroneous, conscience, is not to be deduced, from reason or the fitness of things; it can only stand upon positive law. The Toleration Act renders that which was illegal before, now legal; the Dissenters' way of worship is permitted and allowed by this Act; it is not only exempted from punishment, but rendered innocent and lawful; it is established; it is put under the protection, and is not merely under the connivance, of the law.' 'There is nothing certainly,' he added, 'more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and injust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy.'3

Despite the repugnance and opposition to Catholic emancipation of George III., the ignorant bigotry of the masses which culminated in the Gordon riots of 1780, and the generally unsettled temper of Parliament and the country as to the doctrines of Religious Liberty, the penal code as regards both Roman Catholics and Protestant Dissenters, was gradually, though unsystematically, relaxed. By the

126 Geo. II. c. 33.

2 Chamberlain of London v. Allen Evans, Esq. The suit, originally instituted in the Sheriff's Court, was for a fine (under a bye-law made in 1748) for refusing to serve as Sheriff, on the ground of disability arising from not having taken the Sacrament, according to the rites of the Church of England, within a year before, as required by the Corporation Act of 13 Car. II. Judgment of the House for the Defendant.

Cobbett's Parl. Hist. xvi. 313-327.

Catholic

1791.

Roman Catholic Relief Act of 1778, the precursor of the 'No Popery' ' Roman Riots, under Lord George Gordon in 1780,-supplemented by another Relief Acts Act in 1791, various penalties and disabilities were removed. Priests of 1778 and were no longer subjected to perpetual imprisonment for the performance of their sacred functions; Roman Catholic heirs educated abroad were relieved from forfeiture of their estates to the next Protestant heir; the prohibition to purchase landed property was removed; a modified freedom of worship and education was permitted; and Roman Catholic Peers, though still barred by the oath of Supremacy from sitting in the House of Lords, were relieved from the banishment from the King's presence to which they had been subjected in 1678.

5

ligious dis

disabilities.

In 1779, the Dissenting Ministers Act relieved Protestant dissenting Statutes relieving preachers and schoolmasters from the limited subscription to the Dissenters Thirty-nine Articles required by the Toleration Act; and a further from re. measure in 1812 relieved them from the remaining oaths and de- abilities. claration required by the latter statute. The following year witnessed the removal of the disabilities under which Unitarians had laboured by a statute repealing the exception of anti-Trinitarians from the benefits of the Toleration Act, as well as the provisions against them in the Act of 9 & 10 William III. 'for the suppression of blasphemy and profaneness.' The Civil disabilities of Dissenters under the Test Their Civil and Corporation Acts still remained to be grappled with. These monuments of bygone bigotry were not only unjust to a large and worthy section of the community, but hurtful to the very cause of religion itself by turning the most sacred ordinance of Christianity into an office-key, a pick-lock to a place.' As early as 1718 the Early atfirst Lord Stanhope, anxious, as he declared, to place the Dissenters tempts at on a footing of perfect equality with Churchmen, had endeavoured to procure the repeal of the Test Act at the same time that the Occasional Conformity and Schism Acts were abrogated. But owing to the strong opposition, the repeal of the Test Act was deferred to a more favourable opportunity. In 1736, Mr. Plumer brought forward a motion for its repeal, but Walpole, who had for years obtained the support of the Dissenters by holding out the hope of his assistance when an opportune moment should arrive, voted against the motion,

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