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The Pamphlet Collection of Sir Robert Stout: Volume 1

Statement of Facts Relative to Dr. Kalley's Imprisonment

Statement of Facts Relative to Dr. Kalley's Imprisonment.

The following statement of facts, connected with the case of Robert R. Kalley, M.D., a British subject, now imprisoned in the common gaol of Funchal, by the Portuguese authorities at Madeira, on the charge of having committed the crime of blasphemy, and being an accomplice in those of heresy and apostasy, is respectfully submitted by the present Deputation from the Protestant Association, accompanied by friends of Dr. Kalley:—

Dr. Kalley had for some time resided at Madeira, practising as a physician, where he established and maintained at his own expense, an hospital for the sick poor, and was much beloved and respected by the people, not only for his medical skill, but on account of his unwearied kindness and attention in administering to their various wants; and about two years ago, he received the page 9 public thanks of the Municipal Chamber of Funchal, for his disinterested benevolence and kindness to the poor.

Dr. Kalley had also manifested great interest in the spiritual welfare of the inhabitants, and had distributed various publications amongst them of a religious and moral character.

This course he pursued for some time, not only without molestation, but receiving actual encouragement;—for the predecessor of the present Bishop applied to the Government to grant free admission to eighty Bibles for distribution amongst the Roman Catholic Clergy, of the same Romish version and edition as those since circulated by Dr. Kalley.

But at length opposition arose; an opposition the less to have been expected, because Dr. Gomez had been warmly supported by the local authorities and Government at Lisbon, in the adoption of a similar course.

Some of those who, by reading the Holy Scriptures, became less devoted to the doctrines and ceremonies of the Romish Church, were imprisoned for not conforming to the requirements of ecclesiastical discipline.

Dr. Kalley himself was threatened; legal proceedings were resorted to; but it did not appear that he had placed himself in the power of his persecutors, by the infringement of any law, or any treaty regulating the intercourse between the subjects of Great Britain, and those of the Crown of Portugal. Notwithstanding this, however, the civil authorities of Funchal proceeded to annoy Dr. Kalley by every means in their power, forbidding his friends and patients to enter his house, surrounding it by police,* who made use of intimidating and insulting language to Dr. Kalley, his family, and friends.

So long ago as the 31st of March, 1843, Senhor Dr. Coelho, Substitute British Judge, after the examination of thirty-nine witnesses, decided that Dr. Kalley could not be indicted; and from his decision the following extract is made:—

"There being amongst us, no law which punishes this species of crime, as one of our most respectable writers on jurisprudence, Mello Frere, recognises in his 'Institution of Criminal Rights,' (Tit. ii., s. 12,) I cannot as a judge, bound merely to apply the law, consider the accusation against Dr. Kalley relevant, especially taking into consideration what is provided by the first article of the Treaty of 1842, according to which no subject of the two nations is in any manner to be incommoded on account of his religious opinions; other means must be adopted, which are beyond the limits of judicial power.


"Coelho E Sousa.

"Western Funchal, 31st March, 1843."
On the 5th of July, 1843, this was annulled by Senhor Machado,

* See Appendix, pp. 18, 20.

page 10 Juiz Ordinario, who on the 11th of the same month made the decision, upon the authority of which Dr. Kalley was imprisoned, and from which the following extract is made:—

"I declare Dr. Robert R. Kalley, a British subject, indicted and suspected of having committed the crime of blasphemy, and of being an accomplice in those of heresy and apostasy, prohibited and characterized as crimes, by the Ordonnance, on Book v., Tit. 1 and 2, Decree of the 25th of March, 1646, and Law of 12th June, 1769. Let the notary place his name on the Criminal Roll, and pass mandates for his imprisonment, with denial of bail, declaring in them that the house of the indicted may be entered according to law, in the presence of his counsel, and with the secresy 'or Secretary' of justice.


"Bernardo Francisco Lobado Machado.

"Eastern Funchal, 11th July, 1843."

Thus the provisions of 1646, and 1769, appear to be set up in direct opposition to the provisions of the treaty, between Her Majesty the Queen of Great Britain, and the Queen of Portugal, signed at Lisbon, the 3d of July, 1842. The first article of which contains the following important provisions:—

"The subjects of each of the high contracting parties shall also, within the dominions of the other, be allowed the free use and exercise of their religion without being in any manner disturbed on account of their religious opinions. They shall be allowed to assemble together for the purposes of Public worship, and to celebrate the rites of their own religion in their own dwelling-houses, or in the chapels or places of worship appointed for that purpose, without the smallest hindrance or interruption whatever either now or hereafter; and her Most Faithful Majesty does now and for ever graciously grant to the subjects of Her Britannic Majesty, permission to build and maintain such chapels and places of worship within her dominions. It being always understood, that the said chapels and places of worship are not to have steeples and bells."

Indeed the Constitutional Charter of Portugal itself declares, Art. 145, "That no one shall be persecuted for motives of religion, provided he respect that of the State."

But there being no law to define what is meant by respecting the State religion, and not thinking it sufficient to trust to the present Liberal Government, Great Britain has secured to her subjects by treaty, the free use and exercise of their religion in their own houses.

On the 12th August, 1843, Dr. Negrāo, Judge of Rights, and British Conservator, declared the above Juiz Ordinario incompetent to act in criminal cases, reformed the decision which gave sentence against two Portuguese subjects, held them discharged, and condemned the Juiz Ordinario to pay the costs for having occasioned the nullity.

page 11

Thus, though the Juiz Ordinario has been legally declared incompetent in the case of Portuguese subjects, yet his sentence is made to operate in the case of a British subject; for it was on the decision of that legally declared incompetent authority, countersigned by Dr. Coelho, that Dr. Kalley was apprehended, and has been confined for more than four months in the common prison, at Funchal; and in a letter addressed to the Earl of Aberdeen, on the 26th of October, Dr. Kalley states, that the other appeals against the acts of the Juiz Ordinario in the absence of the Judge of Rights, were allowed, as in the case above referred to, and that his appeal alone was sent to Lisbon, evidently on purpose, as it seemed to him, to prolong his vexatious imprisonment.

But Dr. Kalley still remained in prison. And on the 30th of October, therefore, he petitioned Dr. Coelho, Judge of Rights, and Substitute British Judge Conservator, to be liberated on hail, who on the same day pronounced his judgment, from which the following is extracted:—

"As the penalties pronounced against heretics and blasphemers by our laws, cannot be applied to the petitioner, because he is not of the same religious communion; and as even in the case of his being guilty no other than an arbitrary punishment can be imposed on him, which can never exceed five years' banishment, there is room for bail, which I fix at the sum of one hundred dollars, and I order that his bail be received, making the proper bond.


"Coelho E Sousa.

"Funchal Occidental, 30th October, 1843."

The Notary being required to prepare the bail bond, refused in the following terms:—

"Most Illustrious Judge of Rights, it appears to me that there is no room for the bail required, seeing that the petitioner appealed from the sentence which denied him bail, but you will order what you think right


"Paulo Emilio D'Ornellas.

"Funchal Oriental, 30th October, 1843."

Dr. Negrāo, the British Judge Conservator, having resumed his duties, Dr. Coelho ceased to act:—no second order has been made, and Dr. Kalley still remains in prison.

On the 3d of October, Dr. Kalley thus writes:—

"I have now been ten weeks in gaol, absolutely without any legal sentence against me: for the sentence of a Juiz Ordinario, in the case of a British subject, has no more legal authority than the sentence of the session-clerk of a parish would have in Scotland. It has none even in the case of Portuguese subjects; and I am confident that throughout the Portuguese dominions there is not at present any individual in prison on the sentence of a Juiz Ordinario, except one, and he is a British subject! whose only crime, nay, whose only accusation is, that he has exercised his page 12 religion in his own house! and while by treaty, it is conceded that British subjects may be Protestants in their own houses and chapels."

In the course of his correspondence with friends in England upon this subject, Dr. Kalley has stated (letter, 3d of July), that "there seems to prevail amongst the Portuguese authorities here," i.e., in Madeira, "an idea, that the British Government is not only indifferent to religion, but opposed to it, and that it would rather wish its subjects to have no religion in foreign parts; and this seems to be what emboldens them to adopt such unconstitutional and illegal measures as they have done against me."

And again—

"What we would earnestly desire is, that any prejudicial influence might be averted from Lord Aberdeen; and that the truth might be so recommended to him as that he would not in any way sanction, or appear to sanction, the illegal intentions of the Romish party against me: and if on the other hand he would state firmly with reference to this business that the British Government would never suffer any infraction of the treaty, which forbids any of her unoffending citizens to be persecuted on account of the exercise of his religion, within the precincts of his own house, there is reason to hope that the whole of the present opposition and disturbance would at once be quashed."

Dr. Kalley further, thus proceeds, "If our friends in England would use their influence with his Lordship to ensure such a reply to the representations sent to him, we feel that it would in a most important way, serve the cause of truth.

"In a civil point of view, the case is a strong one. I have taken a long lease of a house, and made arrangements for a permanent residence,—have entered on a deeply interesting field of practice as a physician, and been engaged in it for three years. There can be no doubt that the greater part of the opposition raised to me, has been the work of medical men, who, under the cloak of religion, have tried to drive away one of their profession, on whom they look with jealousy. If England consent to have her sons made victims of such feelings under that cloak, it will soon become available against any who may become the objects of jealousy in any profession."

Thus it appears by documents, from which the above are extracts; the originals, or copies of most of them, having been already forwarded to the Foreign Office—
1.That the charge against Dr. Kalley failed. The Judge himself declaring, there was no law amongst them which punished the species of crime imputed to him.
2.That his imprisonment in the common gaol was in its origin illegal, because he was convicted of no crime, nor accused of an offence, for which in his case any punishment could be inflicted.
3.That his incarceration was, moreover, in gross and page 13 flagrant violation of the provisions of the late treaty made between Her Majesty and the Queen of Portugal.
4.That his continued detention, notwithstanding the remonstrance sent out from the Foreign Office, is a yet greater stretch of arbitrary power—an insult to the British Government and people, a flagrant violation of the treaty, contrary to the law of nations, and the friendly intercourse which ought to exist between Powers at peace with one another.
5.That such detention is not only illegal, but a yet greater hardship and cruelty than his imprisonment, injuring him in his practice, impairing his health, damaging his reputation, and inflicting continued punishment where no crime has been committed.
6.That the opposition and hostility recently evinced to Dr. Kalley, may be in great part referred to the intrigues of those who are professionally opposed to him.
7.That the Portuguese authorities at Madeira seem to think themselves justified and encouraged in such maltreatment of a British subject; and such notorious violation of the treaty, by an erroneous opinion prevailing amongst them, that the British Government is comparatively indifferent about the matter.

The Deputation have therefore respectfully to request information as to what remonstrances may already have been made to the Portuguese authorities by Her Majesty's Government, and what answers may have been returned to such remonstrances.

The Deputation are also further desirous of knowing what more can, and will be done:—
1.To procure the liberation of Dr. Kalley, and to remove from the minds of the Portuguese authorities the erroneous impression, that the British Government is indifferent to religion, and the rights of its subjects abroad.
2.To indemnify Dr. Kalley for his severe losses, privations, and sufferings.
3.To assure the Portuguese authorities and other Powers, within whose dominions British subjects may be visiting or residing, whether for purposes of traffic or pleasure, or for the benefit of their health,—that they are not to be illegally oppressed or persecuted by them, for professing and exercising the Protestant religion, and yet remain destitute of the protection of their native Government; but that the same full liberty which foreigners of every persuasion and country enjoy in Great Britain, without regard of sect, or creed, or politics, is the sacred and undoubted right of British subjects conforming to the laws of those countries in which they may reside. And that whilst Great Britain provides that the rights of foreigners, and the treaties with other nations are respected by her,—she will also provide that the liberties,—the religion,—and reputation of her own subjects shall be protected, and held sacred throughout the globe.

The deputation was received by the Earl of Aberdeen with page 14 the greatest courtesy, and the substance of his Lordship's reply to the Deputation was, that there existed no indifference at the Foreign Office upon the subject. That he had some time since forwarded to Lisbon directions requiring the liberation of Dr. Kalley on bail, as in any case he was entitled to a fair trial; and that on finding there had been some very improper delay somewhere, in consequence of which the directions from the Foreign Office had not been complied with, he had sent out by the last mail, demanding the dismissal of any official who had interfered to deprive his directions of their full operation and effect in procuring the liberation of Dr. Kalley.

On the 27th December, another communication was received from the Foreign Office, stating "that the Court of Relaçās at Lisbon has pronounced a decision in favour of Dr. Kalley, by virtue of which that gentleman will have been liberated on bail." This is, in some degree, satisfactory; but the experience of the past leads us to anticipate protracted delay on the part of the Portuguese authorities at Madeira, if the Foreign Office, and the friends of Dr. Kalley, rest satisfied with the mere decision, and are not energetic in seeing that it is not rendered almost nugatory by delay, which is often a denial of justice. Since writing the above, the following letter has been received from Dr. Kalley, dated Funchal Gaol, 26th December, 1843, in which he thus writes—

"You will be glad to hear that I received a despatch from the Foreign Office, under date the 1st current, in which Mr. Addington, by Lord Aberdeen's direction, says, that 'if it shall turn out that the authorities of Madeira, in refusing to admit you to bail, and in keeping you in prison for so long a time without trial, have violated the forms of Portuguese law, or the privileges secured to British subjects by ancient treaties, Her Majesty's Government must use all the means at their disposal in order to obtain for you complete redress and compensation for any injuries which may have been illegally inflicted upon you.'

"Lord Howard already long ago stated, that he considered that the proceedings against me had been constituted and followed up in an irregular and unjustifiable manner; and Lord Aberdeen directed Lord Howard to renew in a peremptory manner his demand, that steps should be taken for my immediate release on bail. His Lordship could use such language towards a foreign Power only from a clear conviction that the denial of bail was a breach of privilege. We have now, however, sufficient proof that the authorities here did act unjustly towards me. You are aware that I appealed to the Relaçās against the denial of bail; that appeal was decided on the 12th, and Mr. A. writes to me on the 14th that it was in my favour. There are, however, certain days during which the Attorney-General can appeal to the Tribunal of Justice, and were he to do so, my liberation would still be page 15 delayed until another decision be given. As he has, however, already expressed his opinion that bail should have been received at first, he probably will not interpose an appeal, and if so, I may expect to be at liberty in the course of eight or ten days, so soon as the sentence shall be officially communicated to the authorities here."

This justifies us in indulging apprehensions, till we hear that Dr. Kalley is at liberty. Some are of opinion that the Relaçās has conceded this appeal, in order that Dr. Kalley may be released on bail, and let them cast aside the other appeal, supposing that in this manner their Government may not be implicated in expenses, and that when consequent to the Doctor's liberation on bail, the attention of his countrymen shall have been withdrawn, they will be able to arrange the whole affair in accordance with Portuguese jurisdiction. If the question be soon determined, it must be acknowledged that the Juiz Ordinario had no right or power to commit Dr. Kalley to prison; and on such a decision much heavier damages ought to be demanded, than if the denial of bail alone were declared unjust. For then the whole disgrace of imprisonment as a felon and its consequences must be redressed. It is said, that in anticipation of public disapproval, for the satisfaction of the English Government, the authorities in Lisbon have already intimated to those at Madeira, privately, that they approve of what has been done, so that the public disapprobation may not incommode them much.

We trust, however, that Dr. Kalley is by this time liberated on bail, but his trial may be yet some time pending; and whatever be the result, as to an acquittal or conviction, the proceedings already had, supply a lesson which the Protestants of the British Empire ought well to know, and never to forget.

That great energy and prompt attention to the rights and interests of British subjects has been displayed by the Foreign Office, and that in consequence, the vulture has been obliged to leave her prey undevoured, this is a matter in some respect of just congratulation. Still we must remember, that nothing but the intervention of British power has rescued a fellow-Christian and a fellow-subject from the cruel imprisonment of a Portuguese dungeon,* and, perhaps, from an ignominious death.

* Dr Kalley says—

"I was brought to prison, being taken from the midst of patients in my hospital.

"The hope was then held out to me that I should not remain more than an hour or two, while papers were being prepared for my being a prisoner in my own house. I was put into a filthy little room into which all were admitted, till a friend begged from the Judge of the Camera, a large room and bed-room which were locked up and unemployed, and they were granted to me through his kindness."

Dr. Kalley applied to get out on bail, "but the Delegado do Procurador Regie declared, that the crimes with which I am charged (blasphemy and being complice in heresy and apostasy), are punishable with death by the Portuguese laws, and, therefore, not bailable." (And see Appendix, p. 19.)

page 16

Rome's object is the assimilation of all to her own corrupt and erroneous system; or the imprisonment and annihilation of those who differ from her. We have recently had instances almost on a national scale, of what she is preparing to do and may yet accomplish, if Protestants augment her influence and power, or even connive at her proceedings.