judgment of the court of appeal; an unsworn member, the court of appeal held that the parliamentary "oath must be taken by a member, with the assent of the house, according to the requirements of the standing orders, and after he has been called upon by the Speaker to be sworn." The court also held that a member of parliament who does not believe in the existence of a Supreme Being, and upon whom an oath has no binding effect as such, is, owing to his want of religious belief, incapable by law of subscribing the parliamentary oath. However, upon the opening of the new parliament in January, 1886, Mr. Bradlaugh took the oath, the speaker holding that he knew nothing of the resolutions of the past upon the subject, and that he had no independent authority to forbid a member returned to the house from coming to the table and taking the oath prescribed by statute.2 And to prevent such controversies in future, sec. 1 of the Oaths Act, Oaths Act, 1888, provides that a solemn affirmation may be made in lieu of an oath by every person who states that the taking of an oath is objectionable, either because it is contrary to his religious belief, or because he has no religious belief whatever. 1888. Emancipa Jews, The declaration "upon the true faith of a Christian" at the tion of the end of the oath of abjuration imposed by 9 Geo. IV. c. 17 not only hindered the entry of Jews into municipal offices, into which they had been occasionally admitted along with protestant dissenters by virtue of the Annual Indemnity Acts, but it also denied them the right of sitting and voting in parliament. So far as the corporations were concerned, the disability was taken away by a statute passed in 1845; but not until thirteen years later was it removed so far as the parliamentary oath was concerned. Not until the cases of Baron Rothschild and cases of and Salo mans. Rothschild Mr. Salomans had pressed the matter upon the house of commons was the act of 1858 passed, providing that either house could resolve that any person professing the Jewish religion may omit the words "and I make this declaration upon the true faith of a Christian ;" and a few years later 28 & 30 Vict. c. 19 entirely removed the phrase from the form of oath prescribed for members of the lower house. 1 Law Reports, 1885, pt. v. p. 667; 14 Q. B. D. 101. 2 Cf. May, Parl. Practice, pp. 160, 162, 163, 198. 3 Ibid., p. 158. Catholics from Toler. to severe The Toleration Act expressly provided that its terms should Roman not be so construed as "to give any ease, benefit, or advantage expressly to any papist or popish recusant whatever;" and in 1700, excepted when the intolerant spirit thus manifested was fanned into ation Act; flame by the presence of many priests who came over after the Peace of Ryswick, a very severe penal law was passed making subjected it a crime for any "popish bishop, priest, or Jesuit" to exer- penalties by cise any of his functions, and offering a large reward to any act passed one who should detect and prosecute to conviction such as should attempt to violate the act. Every catholic was to take the oaths of allegiance and supremacy six months after becoming eighteen, and to make the declaration in the act excluding that sect from parliament. Any one who failed to comply, but not his heirs, was to be disabled from inheriting land; and disabled during his life until the oaths should be taken, "the next of from inher iting and his kindred, which shall be a Protestant, shall have and enjoy purchasing land; the said lands, tenements, and hereditaments." To that humane provision was added another, by which papists, who were prohibited from sending their children abroad to be educated, were made incapable of purchasing land after a certain date, and uses and trusts for their benefit created after that time were declared void.1 That act, which thus openly attempted to strip the Roman Catholic gentry of their landed property, was the last of the penal laws against that sect; and it remained in last of the force down to 1778, when it was practically repealed by Sir penal laws against George Saville's Roman Catholic Relief Act,2 as against all them; persons who, disclaiming the Stuarts, and certain catholic doc- of 1778; trines including the deposing power of the pope, would take an oath of allegiance to George III. During the trial of Lord George Gordon, who headed the "no popery" riots of the following year, the attorney-general, speaking of the operation of the laws against the catholics, especially of the act of William III., said: "The penalties and punishments appeared to every- act of 1700 body so extremely hard and severe that very few prosecutions for enforcewere carried on upon this act : in my own time I only remem- ment; ber one, which was against a person for saying mass in a house 11 & 12 Will. III. c. 4. For a commentary upon the act and its objects, see Burnet, vol. iii. p. 253. 2 18 Geo. III. c. 60. "This act, for the first time for nearly two hundred years, allowed mass to be said in Eng- Relief Act too severe of 1791; 1829; process completed by repeal 1844 and 1846; 1 somewhere about Wapping; he was committed, and of course doomed by the provisions of this act to perpetual imprisonment." Despite a still more liberal act than that of 1778, Relief Act enacted for the emancipation of catholics in 1791,2 they continued subject to many disabilities, which deprived them not only of the right of holding office, but also of sitting in parliaEmancipa- ment down to the year 1829, when, under pressure from the tion Act of "Catholic Association" formed by Daniel O'Connell, a tory ministry, headed by the duke of Wellington, passed, with the aid of the whigs and in order to prevent civil war, the Catholic Emancipation Act of that year, by which all such disabilities were swept away. Whatever obsolete statutes still remained were removed either by the act of 1844' "to repeal ing acts of certain penal enactments made against her Majesty's Roman Catholic subjects," or by the act of 18465 "to relieve her Majesty's subjects from certain penalties and disabilities in regard to religious opinions." The history of the process through which religious liberty was thus gradually established in England by the repeal of the disabling acts directed against all non-conformists, whether catholic or protestants, has been sensummary tentiously epitomized as follows: "The Revolution of 1688 Stephen. produced a narrowly limited toleration, in the strict sense of the word, for Protestant Dissenters. You are a set of narrow-minded bigots, but we will not punish you for it,' was the language of the legislature towards them. The Roman Catholics, on the other hand, were treated as men who would be rebels if they dared, and were placed under laws nominally harsher than any which had been in force before. The laws, however, were not executed, and, after being practically repealed in 1791 and 1829, were formally repealed in 1844 and 1846." 6 of Sir J. F. The The Convention Parliament, bitter as it was to Roman Cathnon-jurors; olics, stingy as it was to protestant non-conformists, failed to satisfy a large section of the clergy of the state church, who, as teachers of the doctrines of divine right and passive obedi1 State Trials, vol. vi. p. 501. by law to protestant dissenters in like 2 31 Geo. III. c. 32. 8 Io Geo. IV. c. 7. In 1832 the act of 2 & 3 Will. IV. c. 115 extended to catholic schools, places of worship, charities, and to persons employed about them the same privileges secured new oath of ence, were unable to admit without confusion the new theory that the houses could depose one king and set up another at will. Passive obedience, it is true, had come to be regarded as a dead heresy, since the clergy themselves had been forced to resist the persecution to which they were subjected by James; but to the doctrine of divine right a large number of the higher many of the dignitaries, with Sancroft, the primate, at their head, resolved greater ecclesiastics, to be faithful when the time came for them to take the new including Sancroft, oath of allegiance to William and Mary//imposed by an act of refused the parliament upon all public functionaries in church and state. allegiance; An amendment made by the lords exempting the clergy from the oath was rejected by the commons,2 and so the act as passed provided not only for the expulsion from office of all civil officers who should refuse it, but also for the suspension suspension and finally for the deprivation of all priests and bishops who vation the after a certain time should persist in declining it. When the penalty of final test came, while about twenty-nine thirtieths of the pro- ence; fession reluctantly complied, eight bishops, including Sancroft, Sancroft and about four hundred clergymen, some of them highly dis- and his tinguished, resolved to give up their sees and their livings accepted rather than admit that the sovereign parliament could not only than depose a king, but deprive a bishop and expel a priest. Those refusing to take the oath, and their adherents, came to be known as non-jurors, who claimed to be the only true members of the Church of England. The sees thus made vacant were promptly their places filled, however, by the appointment of new incumbents, who latitudinawere for the most part latitudinarians, Tillotson, the new arch- rians. bishop of Canterbury, being then at the head of that school.3 disobedi followers both rather submit ; filled by treason: 4. In order to defend more perfectly the new dynasty against Legislation the Jacobites, including the non-juring clergy, who persisted concerning in regarding the exiled king as their real sovereign, and who propagated their opinions through secret printing-presses of their own, it was deemed necessary to so enlarge the law of law treason as to cover every contingency that might arise out of acts passed such circumstances. Thus, in 1698, it was made in substance from 1698 treason for those who had followed James into France to re 1 I Will. & Mar. c. 8. 2 Lords' Journals, April 17, 1689; Parl. Hist., p. 218. 8 Macaulay, vol. i. pp. 704-711; vol. ii. pp. 99, 100, 102-110, 256. "It was indeed only among Whigs and Latitu- enlarged by to 1709; remedial turn to England without a license; 1 in 1701, it was made treason to correspond with "the pretended prince of Wales; "2 and after the accession of Anne such precautions were made still more stringent by an act passed in 1702, making it treason to attempt to prevent the succession as established by the Act of Settlement. In 1705, two more acts were passed, the first making it treason to return without license into England after going without license into France; the second making it treason to maintain, by writings, the title of the Prince of Wales or others; and in 1709 still another was enacted making it treason for officers to hold correspondence with rebels or enemies. Nevertheless, before the substantive law of treason was thus extended, parliament had been careful to enact a highly remedial statute, which protected more perfectly than ever before the rights of those who were subject to trial for the highest of all offences. It seems that the all-important act of 5 & 6 Edw. VI. c. II, whose terms have been heretofore set forth, had been for a century after its passage practically ignored in criminal trials by the judges, some of whom went so far as to contend that as a rule of evidence it had been repealed by 1 & 2 Phil. & Mar. c. 10, which provided that "all trials for treason shall be according to the due order and course of the common Mar. c. 10; law and not otherwise." 8 And yet it was frankly admitted upon the trial of the regicides that the law required two witted in trials nesses, and upon Lord Stafford's trial in 1680 that fact was of regi"treated as a point beyond all doubt, . . . his lordship insistStafford; ing that there ought to be two to each overt act. . . . One wit statute for protection of those tried for treason; act of 5 & 6 Edw. VI. for a long time ignored; said to have been repealed by 1 & 2 Phil. & its exist ence admit cides and of ness to one overt act, and another to another overt act of the same species of treason, are two sufficient witnesses within the statutes." In order to put that construction beyond all doubt, confirmed it was confirmed by 7 & 8 Will. III. c. 3,9 which also provided by 7 Will that a copy of the indictment against a prisoner charged with high treason should be delivered to him at least five days III. c. 3; |