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The English Indemnity Acts 1726–1867

Published online by Cambridge University Press:  28 July 2009

K. R. M. Short
K. R. M. Short
Affiliation:
Lecturer in history in Westminster College, Oxford, England.
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Extract

Modern scholars generally agree that the Indemnity Acts of the eighteenth and early nineteenth centuries were enacted to afford legal relief to religious nonconformists from the restrictions placed upon them by the Test Act of 1673 and the Corporation Act of 1661. The oaths required by this legislation were a means of debarring religiously and politically seditious individuals from offices, in national government in the case of the Test Act and from corporation government in that of the Corporation Act. Both acts required the taking of “the several oaths of supremacy and allegiance” in addition to the “sacrament of the Lord's Supper according to the usage of the Church of England.” To qualify under the Test Act the sacrament had to be taken in a public church on a Sunday “immediately after divine service and sermon…” within three months of admission to office. The Corporation Act differed significantly in its requirement that the sacrament had to have been received in the year preceding election to corporate office.

Type
Research Article
Information
Church History , Volume 42 , Issue 3 , September 1973 , pp. 366 - 376
Copyright
Copyright © American Society of Church History 1973

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References

1. 25 Car. 2, cap. 2.

2. 13 Car. 2, stat. 2, cap. 1. The author is not aware of any record of prosecutions under the Test and Corporation Acts prior to the passage of the first Indemnity Act.

3. Although germane to the general issue of the means by which loyalty was to be guaranteed, the oaths themselves are only dealt with in passing.

4. 13 Geo. 1, c. 29.

5. I Geo. 1. c. 39, st. 2, cl. 3, cl. 23, 1714; 19 Geo. 2, c. 20. 1746 See Williams, BasilThe Whig Supremacy, 1714–1760 (Oxford, 1939), pp. 68ffGoogle Scholar. Williams follows Charles James Fox's interpretation of this pair of acts. Fox is quoted as saying in 1790: “During the rebellions of 1715 and 1745 …they had acted with the spirit and fidelity of British subjects. To their endeavours we owed the preservation of state and church. What was the reward they obtained? We generously granted them a pardon for their noble exploits, by passing an act of indemnity in their favour … for the heinous crime of defending the Constitution.” This is understood to refer to nonconformists who, under the Test Act, should have been sacramentally qualified to serve in “the commissioned ranks.”

6. Hallam, Henry in Constitutional History (London, 1827), 2:602Google Scholar was the first to establish this pattern; Sykes, Norman, From Sheldon to Secker (Cambridge 1959), p. 152Google Scholar; Hunt, Norman C., Two Early Political Associations (Oxford, 1961), pp. 120–129.Google Scholar

Hunt suggests that it is possible that it was the failure to secure a bill in 1732 that led to the first concerned attempt of dissenters to repeal the Test and Corporation Acts (p. 123). See also the Congregational Magazine (London, 1828), pp. 6–12.Google Scholar

7. 30 and 31 Vic., c. 88.

8. Keir, David L., The Constitutional History of Modern Britain Since 1485 (London, 1960), p. 430.Google Scholar

9. Williams, p. 68.

10. Short, K.R.M., “The English Regium Donum,” English Historical Review 84, pp. 59–78.Google Scholar

11. Manning, Bernard L., The Protestant Dissenting Deputies (Cambridge, 1952), p. 199Google Scholar. Compare Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution (10th ed.; London, 1964), pp. 235–237.Google Scholar

12. Cowherd, Raymond G., The Politics of English Dissent (New York, 1959), p. 23.Google Scholar

13. Marshall, Dorothy, Eighteenth Century England (London, 1963), p. 104.Google Scholar

14. Hansard Parliamentary Debates 17 (London, 1827), p. 12.Google Scholar

15. Davis, Richard W., “The Strategy of ‘Dissent’ in the Repeal Campaign, 1820–1828,” Journal of Modern History 38, pp. 374–393.CrossRefGoogle Scholar

16. These debates are conveniently assembled in the Test Act Reporter (London, 1828), ed. by the Unitarian Robert Aspland of Gravel Pit Chapel, HackneyGoogle Scholar. This source offers variant readings at many points from Hansard. For Inglis' comment see p. 121.

17. Ibid., p. 145.

18. Ibid., p. 166. Brougham (p. 160) had earlier claimed that, “No Dissenter can stand a contest for any place in a Corporation.”

19. Hallam, 2:602. Hallam added that the gates were subject to being “closed by either house of parliament, if any jealousies should induce them to refuse their assent to this annual enactmeut.”

20. Test Act Reporter, p. 153.

21. Ibid., pp. 93ff.

22. Statement of the Case …, pp. 8ff. This is a copy of the third edition and is based upon the earlier mentioned pamphlet by Heywood, Samuel, The Right of Protestant Dissenters to a Compleat Toleration Asserted (London, 1787); see pp. 47ff for the Indemnity Acts.Google Scholar

23. Monthly Repository (London, 1827), p. 452.Google Scholar

24. Hunt, Norman C., “A Consideration of Relationship Between Some Religious and Economic Organizations and the Government, Especially from 1730–42“ (Ph. D. Diss., Cambridge, 1951), pp. 123–141.Google Scholar

25. Beldam, Joseph, A Summary of the Laws Peculiarly Affecting Protestant Dissenterss with an appendix containing Acts of Parliament, Trust Deeds and Legal Forms (London, 1827), pp. 31ff.Google Scholar

26. Sidney, and Webb, Beatrice, English Local Government: The Manor and the Borough, Part One, (London, 1908), p. 391Google Scholar n. 2. They also make the important point that the character of nonconformity was significantly altered during the century.

27. Baptist Quarterly 21, (London), pp. 364–367Google Scholar; Records … Nottingham (London, 1882–1956), 7:245, 256, 415, 419; 8:170ffGoogle Scholar. Soars was also mayor in 1827–1828. Dissenting political power in Bristol is examined by Bush, G. W. A., “The Old and the New: The Corporation of Bristol 1820–51” (Ph. D. diss., Bristol, 1965), p. 267.Google Scholar

28. Baptist Quarterly 10, pp. 287, 342.Google Scholar

29. Congregational Magazine (London, 1828), p. 110.Google Scholar

30. Chapel, Unicorn Yard, Minutes, pp. 108, 127–130, 137, 188 (Amgus Collection, Regents Park College, Oxford)Google Scholar; Transactions of the Baptist Historical Society 5, pp. 223ffGoogle Scholar. There is no detailed study on the incidence or discipline of occasional conformity, but the samples cited in the text appear to be representative. Robison, Olin C., “The Particular Baptists in England, 1760–1820” (Ph. D. diss., Oxford, 1963)Google Scholar found only a few instances of conformity, most of which resulted in disciplinary action.

31. Trevelyan, George M., England Under Queen Anne (London, 1930), 1:277.Google Scholar

32. Davies, Horton, Worship and Theology in England, From Watts and Wesley to Maurice, 1690–1850 (Princeton, 1961), Chapter 4 and especially pp. 84–89CrossRefGoogle Scholar. The famous “Sheriffs' Cause” described by Manning, Chapter 2, may with further investigation support the idea that few Presbyterians practised occasional conformity for from January 1739 (when the matter appears in the Dissenting Deputies' papers) until the settlement of the matter in 1767, a large number of men refused on the grounds of conscience to serve the City in that capacity. A significant portion of those men who chose to pay a fine rather than conform must have been, granting the makeup of dissent in that part of the century, Presbyterians.

33. In 1737–1738 Carter Lane Baptist Chapel, London, almost expelled James Hart (Baptist Quarterly 5, pp. 87ffGoogle Scholar.) for occasional conformity. Unicorn Yard Chapel restored Joshua Lyons to membership on 11 December 1720, four years after his withdrawing from the congregation when it censored him for taking the Anglican sacrament.

34. 2 Burrow, 1013.

35. Davis, Richard W., Dissent in Politics, 1780–1830: The Political Life of William Smith, M. P. (London, 1971) p. 29Google Scholar, is very useful in providing a different perspective on the six months clause. Davis is correct in pointing out the importance of the 1718 Corporation Act ( 5 Geo. 1, cap. 6) and the provision allowing for six months for prosecution and a penalty of five hundred pounds. He has also suggested that the wording of this act brought about a conflict between the title and the enacting part of the Indemnity Acts—the former suggesting that it covered only those who had failed to qualify previous to the date of its passage, the latter suggesting that it covered those who failed to qualify afterwards as well. Davis thinks that in the Berwick case King's Bench seems to have ignored the letter of the law for its spirit. This act is also discussed in the significant article by Bennett, Thomas, “Hallam and the Indemnity Acts,” Law Quarterly Review 26 (1910), pp. 401ffGoogle Scholar. Referring to the six months provision, Dorothy Marshall, p. 104, claims that in “towns where nonconformist influence was strong this provision opened a reasonably effective back door to office.” Despite the lack of supporting evidence, Horn, D. B. and Ransome, Mary, English Historical Documents 1714–1783 (London, 1957), pp. 3994ffGoogle Scholar. label the act “An Act of Indemnity for Dissenters holding municipal offices, 1718.”

36. Records … Nottingham, 8:404ff.

37. Heywood, p. 85. He suggests that the liberality of the times and the severity of the penalties contributed to the disuse of the Test Act.

38. Davis, p. 43 n. 2.

39. Heywood, p. 85.

40. Blackstone, William, Commentaries on the Laws of England (London, 1775 ed.), 4:52–58 in Horn and Ransome, 10:391.Google Scholar

41. Test Act Reporter, p. 294; Hansard 18, 1511.

42. Carpenter, S. C., Eighteenth Century Church and People (London, 1959), p. 188Google Scholar; Davies, pp. 58ff. Carpenter believed that the communion problem was a relic of the medieval practice of annual communion while Horton Davies suggests the influence of deism as an important element. Lord Holland, in a speech of 17 April 1828, recalled that Stanhope had threatened clergy with legal action if they refused to administer the sacrament to those needing it for political reasons. The reference was to the repeal of the Occasional Conformity Act in Test Act Reporter, p. 258.

43. Secker, , Eight Charges (1769), pp. 59–64.Google Scholar

44. The Two Books of Homilies Appointed to be Read in Churches (Oxford, 1859), pp. 439–452.Google Scholar

45. The Book of Common Prayer (Oxford nd.), p. 304.Google Scholar

46. Webb and Webb, p. 391 n. 2.

47. This particular provision may have had local variations and there are instances of the corporation being treated to a special sermon on the occasion. A justification for this use of the sacrament is found in de Coetlogon, C. E., The Test of Truth, Piety and Allegiance: A Sermon delivered on the day of sacramental qualification for the chief magistracy of the city of London; etc. (London, 1790)Google Scholar. Peel refers to this practice in Hansard 18, 750ff.

48. Test Act Reporter, p. 64.

49. Ibid., pp. 290ff. Quotation from Hansard 18 (1828), 1507ff.Google Scholar

50. Abbey, Charles J. and Overton, John H., The English Church in the Eighteenth Century (1878), 2:479Google Scholar. Clive J. Field of Wadham College, Oxford in an unpublished paper entitled “Change and Continuity in Popular Attitudes over Three Centuries: The Example of Religion” has amassed a significant amount of statistical information related to the taking of communion (pp. 78–94). He points out that in “the dioceses of Lichfield and Coventry in 1832 only 2.5 per cent of the population communicated. Communicants formed a mere 6 per cent of Anglican attendances at Nottingham in 1833 and 15 percent at Bristol in 1841 …” p. 83.

51. Monthly Repository (1827), p. 452.Google Scholar

52. Beavan, A. B., The Aldermen of the City of London (London, 1913), pp. 141ff.Google Scholar

53. 6 Geo. 4, c. 3.

54. 14 East 549 (1812). The other case is King v. Hawkins, 10 East 211 (1809).Google Scholar

55. Test Act Reporter, p. 138. Lord Nugent is the source.

56. 9 Geo. 4, cap. 17.

57. 30 and 31 Viet., c. 75.

58. Compare Arnstein, Walter L., The Bradlaugh Case (London, 1964)Google Scholar. Two interesting issues emerge at the point of Parliament's revocation of the sacramental provisions of the Test and Corporation Acts. First, one may well ask why did the acts remain on the books having apparently outlived their usefulness. The answer to this lies in both the traditional reluctance of Parliament to repeal acts preferring to “amend them to death” and an equally stong conviction that one could yet use such statutory means, under proper conditions, to protect the national interest against subversive elements. Second, one might well inquire as to the effect of the repeal upon dissenting political involvement. The effect of this move, although psychologically bracing to politically minded nonconformists, was minimal in the first instance. Protestant nonconformists had never been excluded from Commons and had in fact sat in committee on the Test and Corporation Acts amendment. It has already been pointed out that for all intents and purposes the acts were dead letters. Even the extension of the franchise to those nonconformists of the middle classes in 1832 did not mark their entry into the political arena in force. The emergence of political nonconfirmity had to await its birth via the midwifery of the Municipal Corporations Act (1835) which threw many but not all of the newly opened corporations into the hands of nonconformist members of the middle class. The Dissenting Deputies of London paid out £1,053.15.11 to celebrate the passage of Test and Corporation Act repeal, but it was little more than a toast to things as yet unrealised. If 1828 marked the beginning of the politicization of dissent it was simply because it legally opened a door into political life that had been left standing ajar because of the almost universal failure to apply the sanctions of the existing law.