§ Order for the consideration of Bill, as amended, read.
§ MR. W. MILES
moved the following Clause, of which he had given notice:—And be it enacted, That if a penalty shall be recovered by judgment or verdict against any person for a second offence under this Act, it shall be lawful for Her Majesty's Secretary of State for the Home Department, if in the circumstances of the case the same shall appear fit, by notice in writing signed by him, to require such person to depart out of the realm within a time to be limited in such notice; and if such person shall afterwards be found therein, it shall be lawful for Her Majesty's Secretary of State for the Home Department by warrant under his hand, to give such person in charge of one of Her Majesty's Messengers, or of such other person or persons to whom he shall think fit to direct such warrant, in order to his being conducted out of the kingdom.
§ Brought up, and read 1°.
He conceived it to be the duty of every Member, now that the Bill was in the shape in which the Government intended to pass it, to consider whether or not its provisions were such as not only to stop the present encroachment, but to prevent such encroachments for the future, and whether it would adequately carry out the wishes which had been expressed at the great Protestant meetings which had been held throughout the country on the subject of the Papal aggression, and to propose, or at least to place on record, such Amendments as might be necessary not only to carry out the object of the present Bill,
but to repress Papal aggression hereafter. The noble Lord at the head of the Government had promised, if this Bill should not prove adequate, that he would come down and ask for a more stringent measure; but when the interminable debates which had taken place were considered, it would, he thought, be admitted that the better course would he, to pass at once a measure sufficiently stringent, and thus obviate the necessity of further application to Parliament on the subject. Notwithstanding the feeling of indignation which the Pope's proceedings had excited in the country, no effort had been made by the Court of Rome to give any explanation on the subject of the Rescript. On the contrary, the organ of the Roman Catholic Church in this country, the Tablet newspaper, warned them that the present Bill would be inoperative, and that the offence for which it had been passed would be repeated. The Tablet, so late as the 7th of June, had an article to the following effect:—
On Monday night, Mr. Walpole, in yielding some of his clauses 'to the better judgment of his hon. Friends,' hoped that if he yielded to their wishes, neither the Government nor the country would find another brief come into the country next autumn.
Poor Mr. Walpole! Fond Mr. Walpole! Credulous Mr. Walpolo! 'Another brief,' and 'next autumn.' Why, before the summer is well over—before Parliament is up—we think we can answer for half a dozen at least.
First, there is the bishopric of Killaloe. Dr. Vaughan is nominated bishop, and the Bulls have, it is announced, already arrived for his consecration. Dr. Vaughan will be consecrated; he will take a territorial title; four or five indictable offences will he committed, and all with the most frank, cheerful, and inveterate disregard of the contemptible enactment which they are pretending to pass at St. Stephen's. We think we can vouch for half a dozen, if not half a thousand, misdemeanors in and about Killaloe.
Then come the English bishoprics. Letters have just arrived from Rome, saying that four of the new sees are already filled up—one of the four being Southwark. About the fifth there is some doubt. But taking the four; every one of the four will require a separate bull to be received; a bishop elect to receive it; a person to deliver it; three bishops to commit misdemeanors by consecrating the new bishop; sundry priests, acolytes, and attendants to take part in the ceremony. It is with beating hearts and wet cheeks that we set down 200 misdemeanants as the minimum for every one of the four bishoprics. Here alone have we actually on hand five bulls as the supply for the next two months alone; and these five bulls will carry in their tails at least a thousand indictable offences. All the while Parliament will he sitting and spending its time in notable attempts to vindicate the majesty of British law, or rather in notable pretences to appear to do the same. And all the while the Catholics
of these islands, lay and clerical, are laughing at the Legislature, breaking the law, and making fools of the whole Imperial Parliament, with Speaker and Lord Chancellor to boot. What a repulse given to territorial aggression! What a salvo to the dignity of the British Lion! What a fool, by the way, and in conclusion, the said British Lion must be!
Such were the sentiments of the Tablet. It appeared to him to be much better to pass no law at all, than to pass one which should be inoperative. It appeared to him that the aggressions of Rome were not likely to be diminished by this Bill, and that to check them recourse must again be had to Parliament for a more stringent measure. It was not only in this country that Rome was stretching out her spiritual arm. In certain correspondence which had been laid on the table, there was a letter from Lord Cowley to Lord Palmerston, informing him of the demands made by the Roman Catholic bishops in the different States of the Upper Rhine. These bishops had drawn up seventeen different articles relative to laws in which they wished alterations made, and they demanded that all the securities against Papal aggression should be set aside by the different States. In this country he believed the Rescript had violated the Act of 1829, the provisions of which, he was sorry to say, had been totally disregarded. If that Act had been insufficient to prevent aggression, how could this Bill, which merely re-enacted that Act, have that effect? The last clause of that Act, after stating the different Acts relating to the Queen's supremacy, stated they had been passed, and ought to be maintained, for the dignity of the Crown and for the good of the people. But these Acts had all been set at naught, and there was no power to bring the offenders to justice. He had endeavoured to draw up the clause in unison with the clauses of the Bill, and he hoped the House would agree to it; for unless something was done to strengthen the measure, the Protestants of England would be disgusted that Parliament should have been sitting so long, and little should have been done to vindicate the rights of the people and the prerogatives of Her Majesty.
§ SIR GEORGE GREY
said, that a similar clause had formerly been proposed by the hon. and learned Member for Midhurst; only there was this important difference between the two, that the clause of the hon. and learned Member, if adopt- 1318 ed as he proposed it, would have effected something, whereas the present clause would be totally inoperative, unless it were followed up by imposing a severer penalty. Parties might be removed from the shores of England, and return within the next half-hour, and then they would have to commence proceedings de novo. The proposal could not be carried out, unless parties returning were subject to transportation; and, seeing this, the hon. and learned Member for Midhurst had withdrawn his Amendment. He was sure the hon. Member must be aware that the adoption of a clause, apparently stringent, but leading to no practical result, except merely to subject parties to annoyance, would be a most injudicious course, and he hoped that the House would not sanction it.
§ Motion made, and Question put, "That the said Clause be now read a Second Time."
§ The House divided:—Ayes 101; Noes 140: Majority 39.
|List of the AYES.|
|Arbuthnott, hon. H.||Glyn, G. C.|
|Arkwright, G.||Gore, W. O.|
|Bagot, hon. W.||Greenall, G.|
|Baldock, E. H.||Grogan, E.|
|Bankes, G.||Gwyn, H.|
|Barrow, W. H.||Hallewell, E. G.|
|Bennet, P.||Halsey, T. P.|
|Bentinck, Lord H.||Hamilton, G. A.|
|Blakemore, R.||Hamilton, J. H.|
|Blandford, Marq. of||Hamilton, Lord C.|
|Booker, T. W.||Harris, hon. Capt.|
|Bowles, Adm.||Hastie, A.|
|Boyd, J.||Hill, Lord E.|
|Bremridge, R.||Hodgson, W. N.|
|Brisco, M.||Hope, Sir J.|
|Brooke, Lord||Hotham, Lord|
|Buck, L. W.||Jolliffe, Sir W.G.H.|
|Buller, Sir J. Y.||Jones, Capt.|
|Bunbury, W. M.||Lacy, H. C.|
|Burrell, Sir C. M.||Langton, W. H. P. G.|
|Buxton, Sir E. N.||Lennox, Lord A. G.|
|Compton, H. C.||Lindsay, bon. Col.|
|Cubitt, W.||Long, W.|
|Damer, hon. Col.||Lopes, Sir R.|
|Davies, D. A. S.||Lowther, hon. Col.|
|D'Eyncourt, rt. hn. C. T.||Lygon, hon. Gen.|
|Dod, J. W.||Macnaghten, Sir E.|
|Dodd, G.||Mandeville, Visct.|
|Duckworth, Sir J. T. B.||Manners, Lord C. S.|
|Duncombe, hon. A.||Maunsell, T. P.|
|Duncombe, hon. O.||Meux, Sir H.|
|Duncuft, J.||Miles, P. W.S.|
|East, Sir J. B.||Morris, D.|
|Edwards, H.||Mullings, J. R.|
|Egerton, W. T.||Napier, J.|
|Floyer, J.||Newdegate, C. N.|
|Forester, hon. G. C.W.||Noel, hon. G. J.|
|Fox, S. W. L.||Packe, C.W.|
|Fuller, A. E.||Pakington, Sir J.|
|Galway, Visct.||Palmer, R.|
|Gilpin, Col.||Pennant, hon. Col.|
|Plumptre, J. P.||Taylor, T. E.|
|Powell, Col.||Thompson, Col.|
|Pugh, D.||Trevor, hon. G. R.|
|Reid, Col.||Tyler, Sir G.|
|Repton, G. W. J.||Verner, Sir W.|
|Richards, R.||Villiers, hon. F. W. C.|
|Smollett, A.||Vyse, R. H. R. H.|
|Somerset, Capt.||Wigram, L. T.|
|Staunton, Sir G. T.||TELLERS.|
|Stuart, J.||Miles, W.|
|Sutton, J. H. M.||Spooner, R.|
|List of the NOES.|
|Adair, R. A. S.||Hallyburton, Lord J. F.|
|Aglionby, H. A.||Harris, R.|
|Anstey, T. C.||Hastie, A.|
|Armstrong, Sir A.||Hatchell, rt. hon. J.|
|Baring, H. B.||Hayes, Sir E.|
|Baring, rt. hon. Sir F.T.||Heneage, G. H.W.|
|Bell, J.||Heneage, E.|
|Berkeley, Adm.||Henley, J. W.|
|Berkeley, C. L. G.||Higgins, G. G. O.|
|Bernal, R.||Hobhouse, T. B.|
|Birch, Sir T. B.||Howard, P. H.|
|Blake, M. J.||Hudson, G.|
|Boyle, hon. Col.||Humphery, Aid.|
|Brotherton, J.||Hutt, W.|
|Butler, P. S.||Jackson, W.|
|Carow, W. H. P.||Johnstone, J.|
|Cavendish, hon. G. H.||Keogh, W.|
|Chaplin, W. J.||Kershaw, J.|
|Clay, J.||Labouchere, rt. hon. H.|
|Clay, Sir W.||Lawless, hon. C.|
|Cockburn, Sir A. J. E.||Mackie, J.|
|Cocks, T. S.||Mackinnon, W. A.|
|Colebrooke, Sir T. E.||M'Cullagh, W. T.|
|Corbally, M. E.||M'Taggart, Sir J.|
|Cowper, hon. W, F.||Meagher, T.|
|Crawford, W. S.||Mahon, Visct.|
|Crawford, R. W.||Mangles, R. D.|
|Crowder, R. B.||Martin, C. W.|
|Davie, Sir H. R. F.||Matheson, A.|
|Dawes, E.||Matheson, Col.|
|Dawson, hon. T. V.||Moore, G. H.|
|Denison, J. E.||Mulgrave, Earl of|
|Devereux, J. T.||Murphy, F. S.|
|Douglas, Sir C. E.||Norreys, Lord|
|Drumlanrig, Visct.||O'Brien, Sir T.|
|Duncan, Visct.||O'Connell, M.|
|Duncan, G.||O'Connor, F.|
|Duncombe, T.||Ogle, S. C.H.|
|Dundas, Adm.||Ossulston, Lord|
|Dundas, rt. hon. Sir D.||Owen, Sir J.|
|Ellice, rt. hon. E.||Paget, Lord A.|
|Ellice, E.||Palmerston, Visct.|
|Estcourt, J. B. B.||Parker, J.|
|Evans, J.||Pechell, Sir G. B.|
|Evans, W.||Pilkington, J.|
|Ewart, W.||Ponsonby, hon. C.F.A.C.|
|Ferguson, Sir R. A.||Rawdon, Col.|
|Foley, J. H. H.||Reynolds, J.|
|Forster, M.||Ricardo, O.|
|Freestun, Col.||Roche, E. B.|
|Geach, C.||Rumbold, C. E.|
|Goold, W.||Russell, Lord J.|
|Grace, O. D. J.||Russell, F. C. H.|
|Graham, rt. hon. Sir J.||Scully, F.|
|Granger, T. C.||Seymour, Lord|
|Grattan, H.||Shelburne, Earl of|
|Grenfell, C. W.||Somerville, rt. hn. Sir W.|
|Grey, rt. hon. Sir G.||Stansfield, W. R. C.|
|Grey, R. W.||Stanton, W. H.|
|Grosvenor, Lord R.||Talbot, J. H.|
|Tennent, R. J.||Westhead, J P. B.|
|Thicknesse, R. A.||Willcox, B. M.|
|Thompson, Ald.||Williams, W.|
|Tollemache, hon. F. J.||Willoughby, Sir H.|
|Towneley, J.||Wilson, J.|
|Traill, G.||Wilson, M.|
|Trelawny, J. S.||Wood, rt. hon. Sir C.|
|Villiers, hon. C.||Wood, Sir W.P.|
|Vivian, J. H.|
|Wall, C. B.||Hayter, W. G.|
|Walmsley, Sir J.||Hill, Lord M.|
§ MR. KEOGH
proposed a new Clause, saving the powers of the 7 and 8 Victoria, c. 97. It was to the following effect:—Be it Enacted, That nothing herein contained shall be construed to annul, repeal, or ïn any manner affect any provision contained in an Act passed in the eighth year of the reign of Her present Majesty, intituled 'An Act for the more effectual Application of Charitable Donations and Bequests in Ireland,' or to render illegal or void any Disposition of Property by will or otherwise already made, which but for the passing of this Act would have been legal and valid.
§ LORD JOHN RUSSELL
said, that there was no intention of affecting the provisions of the Bequests Act by the present measure, and he would be quite willing to adopt the clause, provided it were restricted to the words down to the word "Ireland."
§ Clause, as restricted, agreed to.
§ MR. KEOGH
then moved a Clause, saving the right of giving letters of ordination in evidence:—Be it Enacted, That nothing herein contained shall in any manner prevent the reception in evidence, in any Court of Law or Equity in this Kingdom, of any Letter of Ordination or other document conferring ecclesiastical powers upon any Clergyman of the Roman Catholic Church, which, but for the passing of this Act, would have been so received.
§ Brought up, and read 1°.
§ Heretofore these letters of ordination had been received in evidence in Courts of Law; and the speech of the right hon. Baronet (Sir G. Grey) on the second reading of the Bill contained a distinct admission that they would not be prohibited from being received in Courts of Law. He did not propose the introduction of any new law or practice, but that where heretofore these letters of ordination had been received, they should be so received in future. He did not see how, in fairness, the clause could be objected to.1321
The ATTORNEY GENERAL
thought the House ought not to adopt this clause. If, under the Act of 1829, such letters of ordination had been received, there was nothing to prevent their being received under this Act. But he thought the House ought not to adopt a clause which might give a sanction to the supposition that any act done under titles which might be assumed in contravention of the provisions of this Bill, could be, under any circumstances, received in evidence in Courts of Law. This clause was liable to that construction, and he should therefore ask the House to negative it.
§ Motion made, and Question put, "That the said Clause be now read a Second Time."
§ The House divided:—Ayes 45; Noes 220: Majority 175.
|List of the AYES.|
|Anstey, T. C.||Meagher, T.|
|Armstrong, Sir A.||Monsell, W.|
|Arundel and Surrey, Earl of||Moore, G. H.|
|Murphy, F. S.|
|Barron, Sir H. W.||O'Brien, Sir T.|
|Blake, M. J.||O'Connor, F.|
|Butler, P. S.||O'Ferrall, rt. hon. R. M.|
|Colebrooke, Sir T. E.||O'Flaherty, A.|
|Corbally, M. E.||Reynolds, J.|
|Crawford, W. S.||Scully, F.|
|Devereux, J. T.||Sullivan, M.|
|Duncombe, T.||Talbot, J. H.|
|French, F.||Tennent, R. J.|
|Geach, C.||Tollemache, hon. F. J.|
|Gladstone, rt. hon. W. E.||Townley, J.|
|Goold, W.||Trelawny, J. S.|
|Grace, O. D. J.||Wall, C. B.|
|Graham, rt. hon. Sir J.||Walmsley, Sir J.|
|Grattan, H.||Wegg-Prosser, F. R.|
|Higgins, G. G. O.||Williams, W.|
|Hobhouse, T. B.||Young, Sir J.|
|Howard, P. H.||TELLERS.|
|Jolliffe, Sir W. G. H.||Roche, E. B.|
|M'Cullagh, W. T.||Keogh, W.|
§ Brought up, and read 1°.
§ Motion made, and Question proposed, "That the said Clause be now read a Second Time."
§ He had communicated with the Attorney and the Solicitor General in reference to this clause. They had received him with courtesy, and had entered into the consideration of the clause with him; but of course they would not give him any intimation of their intention in regard to it with- 1322 out consulting with thier Colleagues. Within the last five minutes the Secretary of the Treasury had come to him, and requested him to be brief in his observations, for that the Government would support him, and keep their men in the House for that purpose. But now the noble Lord at the head of the Government had just informed him that he would not support the clause. What was the meaning of that? He (Mr. Keogh) owed it to himself, and to those who acted with him, to bring forward the clause; but the Secretary of the Treasury now told him that he need no longer be brief in his observations, for that the noble Lord at the head of the Government would not support him. There had been a great deal of shifting and changing in reference to this Bill; but the present proceeding was the most extraordinary instance he had ever met with of a rapid alteration in purpose: the Government when they were going into the lobby being in favour of his proposition, and against it when they were coming out. Under these circumstances, the noble Lord would hardly be able to prove to the country that he was very stable or firm in his intentions. He (Mr. Keogh) would propose the clause, though he supposed he should be defeated on it; but it was right that the country should be made acquainted with the circumstances of the case. In reference to the subject-matter of his Amendment, it was merely his wish to prevent the worst species of animosity which would he excited in Ireland if the Bill passed in its present state. Under the terms of the Bill as it now stood, it was at least doubtful whether an indictment might not be sustained under the first clause against a Roman Catholic Archbishop or bishop in Ireland, and if it passed without the addition he had proposed, Ireland would be in a state of sectarian warfare and animosity. Any person in the community might send up a bill of indictment against any of the Catholic archbishops or bishops; and although it might be ignored, yet there were persons in Ireland so bigoted, and so animated by sectarian feelings, that they would make the experiment of proceeding by indictment against the Catholic archbishops and bishops, and then they would have the hideous spectacle of these venerable Prelates being obliged to come forward in a court of law to defend themselves. Now, was it not better that the authority of the Act should be maintained by the first law officer 1323 of the Government, acting under the authority of Parliament?
§ LORD JOHN RUSSELL
would state, in a few words, the course he had taken, and the course he was disposed to take, in reference to this Amendment. It had been his intention to oppose all the clauses proposed by the hon. and learned Gentleman (Mr. Keogh), with the exception of that clause which he had already supported, namely, one to prevent the Charitable Bequests Act being affected by any of the provisions of that Bill. Some of his friends around him thought that, as the clause at present under consideration would not do more than what the Government had already declared to be their intention, namely, that all prosecutions under the second clause should be taken by the Attorney General, the clause might be agreed to; but, as he said, it was not his intention to admit it, although he was at first disposed to lean to that view of the case, because he thought it was better not to agree to any clause the effects of which might give rise to inconveniences which had not been anticipated. With respect to the substance of the clause, the hon. and learned Gentleman could not deny that the penalty of 100l. for the assumption of prohibited titles could only be enforced by proceedings instituted by the law officers of the Crown. That was a provision in the Act of 1829, and they had preserved it in the present Act. And with regard to the first clause, it had been repeatedly stated by the Attorney General and the Solicitor General, that no indictment would be under that clause, and therefore no prosecution could be brought. If that was the case, then, under the first clause there could not be any prosecution at all; and, under the second, there could be none except by the Attorney General; and he therefore submitted that the clause now proposed was unnecessary, and that it would be better to retain the Bill in its present shape. He did not know that the clause would produce any effect injurious to the other clauses of the Bill; but it was obviously unnecessary, and he therefore could not agree to it. The noble Lord concluded by stating that it was his intention to oppose the Amendment of the hon. and learned Member for Abingdon.
§ MR. REYNOLDS
said, it appeared to him that the reasons assigned by the noble Lord against this clause were of no weight. He said the Attorney and Solicitor General were of opinion that no prosecutions 1324 could be instituted under the first clause; if so, what harm could be done by inserting this clause? He had understood that the noble Lord had never intended to place in the hands of common informers the power of prosecuting for penalties, and he believed the noble Lord never intended it; but he wanted to know why the noble Lord left such a question a matter of doubt? He had had experience of what it was to be left at the mercy of common informers. When he held the office of Lord Mayor of Dublin, his right to hold the office was impeached: If he had no right to hold the office, he was liable to a penalty of 50l. for every exercise of his magisterial functions. An informer was found in the establishment of the Priests' Protection Society in Dublin—a society formed of ultra Protestants of the Established Church—and he was served with 110 latitats, as they were called, for the recovery of so many penalties of 50l. against him; and those actions were still hanging over him. He wanted to know if it was intended to place the Roman Catholic bishops and archbishops at the mercy of the Priests' Protection Society?
§ MR. GRATTAN
asked, was the noble Lord aware of the spirit now raging in Ireland—that within the last two months Catholic altars had been violated, and that parties had rushed in and attacked the priests while in the discharge of their duties? Some years ago, in the north of Ireland, a Catholic priest was indicted, and there was a verdict against him, and he was sentenced by Protestant magistrates to be publicly flogged in the streets. The Attorney General for Ireland (Lord Plunkett) stopped the execution of the sentence; but if he had not, what would have been the consequence? What would they say if they saw the Bishop of Exeter flogged in the streets of London? Hon. Gentlemen laughed; but what was good for an Irishman was good for an Englishman; and if an Irish priest was flogged in Dublin, he did not see why a Protestant bishop should not be flogged in London. He warned them that if they went on as they were going on now, Ireland would not be worth possessing, because there was still some spirit and courage amongst her people, and they would not submit to insults which he was sure Englishmen would not submit to.
§ SIR JAMES GRAHAM
said, it was not his intention to inflict upon the House any legal argument, because, on a former occasion, he had availed himself of the op- 1325 portunity of expressing his opinion with respect to the legal effects of the first clause, and this opinion he still entertained. He had expressed that opinion with diffidence when he understood that the law authorities of the Crown dissented from it; but he then said, and he repeated now, his opinion was that that clause would constitute, or would, at all events, facililate, that breach of the first clause, which would be an indictable offence. If the offence were one upon which there was any doubt before as to its being indictable, the first clause was not only declaratory, but enactive, that the Brief in question was illegal and void; and, as he contended, so understanding it, it removed every doubt as to an indictment for an offence in violation of that clause. But a far greater extension was given to the operation of that clause by the authorities of the Treasury Bench, more particularly by the hon. and learned Gentleman the Attorney General for Ireland. He understood that right hon. Gentleman distinctly to say that any similar Briefs would fall under the operation of the declaration in the Bill. Now, similar Briefs were, he believed, the usual course of appointing archbishops and bishops in Ireland; but those Briefs would be declared to be illegal and void, and an indictment would lie. He still thought, if that were to be the operation of the clause, that any person in Ireland, whatever might be his feeling, sometimes perhaps vindictive towards Roman Catholics, and contrary possibly to the policy of the Government in Ireland at the time, would have it in his power to prefer a bill of indictment to the grand jury, and if a majority of the grand jury should find a true bill, then the archbishop or bishop who had received the appointment by any such Brief from the Pope would be put to the bar and tried for a misdemeanour, with power to the Government to make the jurors stand by; and that prelate might be convicted. He, therefore, again said he was strongly of opinion that such a check to that power as was now proposed by the hon. Member for Athlone, was indispensably necessary. And if the clause were rejected, and deliberately rejected, now it had been proposed, how much more serious would be the effect of the first clause, about which the greatest lawyers in Parliament entertained a difference of opinion?
MR. M. J. O'CONNELL
said, surely the Government were not going to leave the speech of the right hon. Gentleman 1326 the Member for Ripon unanswered. Surely, the rights of the Roman Catholics of Ireland were not, to use the words of Mr. Burke, "to be strangled by mutes." After the irresistible manner in which the right hon. Gentleman had pointed out the danger and difficulty attending the adoption of the first clause without the proposed Amendment of the hon. Member for Athlone, something should be said before the House went to a division. If the Government did not answer the right hon. Gentleman, he hoped some of the supporters of the first clause on the other side of the House would.
§ MR. STUART WORTLEY
had no doubt the hon. and learned Gentleman (Mr. Keogh) had no intention, in moving his clause, to do more than to prevent prosecutions by indictment from being taken; but the effect of his clause might be to prevent parties from bringing suits relating to private interests.
§ Question put, "That the said Clause be now read a Second Time."
§ The House divided:—Ayes 71; Noes 232; Majority 161.
|List of the AYES.|
|Aglionby, H. A.||Lushington, C.|
|Armstrong, Sir A.||M'Cullagh, W. T.|
|Arundel and Surrey, Earl of||M'Taggart, Sir J.|
|Barron, Sir H. W.||Mahon, The O'Gorman|
|Bass, M. T.||Matheson, Col.|
|Blake, M. J.||Monsell, W.|
|Butler, P. S.||Moore, G. H.|
|Carew, W. H. P.||Murphy, F. S.|
|Cavendish, hon. G. H.||O'Brien, Sir T.|
|Clay, J.||O'Connell, J.|
|Cobden, R.||O'Connell, M. J.|
|Colebrooke, Sir T. E.||O'Connor, F.|
|Corbally, M. E.||O'Ferrall, rt. hon. R. M.|
|Crawford, W. S.||O'Flaherty, A.|
|Davie, Sir H. K. F.||Oswald, A.|
|Dawson, hon. T. V.||Pechell, Sir G. B.|
|Denison, J. E.||Pilkington, J.|
|Devereux, J. T.||Ponsonby, hon. C. F.|
|Evans, J.||Rawdon, Col.|
|Fortescue, C.||Roche, E. B.|
|Fox, W.J.||Scholefield, W.|
|Geach, C.||Scully, F.|
|Gibson, rt. hon. T. M.||Smith, rt. hon. R. V.|
|Gladstone, rt. hon. W. E.||Sullivan, M.|
|Goold, W.||Sutton, J. H. M.|
|Grace, O. D. J.||Talbot, J. H.|
|Graham, rt. hon. Sir J.||Tennent, R. J.|
|Grattan, H.||Thicknesse, R. A.|
|Higgins, G. G. O.||Tollemache, hon. F. J.|
|Hobhouse, T. B.||Towneley, J.|
|Howard, P. H.||Trelawny, J. S.|
|Keating, R.||Vane, Lord H.|
|Lawless, hon. C.||Wall, C. B.|
|Walmsley, Sir J.||Wyvill, M.|
|Williams, W.||Young, Sir J.|
|Reynolds, J.||Keogh, W.|
§ MR. REYNOLDS
moved the following Clause:—Be it Enacted, That nothing herein contained shall be construed to repeal or affect an Act passed in the tenth year of the reign of Her present Majesty, intituled, 'An Act for the maintenance of the Cemeteries at Golden Bridge and Prospect, in the county of Dublin, and to create a perpetual succession in the governing body or Committee for managing the same.'
§ Brought up, and read 1°.
§ By this Act the Roman Catholic Archbishop of Dublin had the power of appointing a clergyman to perform the burial service, and the Protestant archbishop also possessed the same right. The funerals were exceedingly numerous, and Christians of every denomination might be interred in these cemeteries. The institution was completely a charitable one, inasmuch as the surplus funds were appropriated to the education of poor children, without reference to religious distinctions. He only wished the House to guarantee the rights which the Act conferred.
The ATTORNEY GENERAL
said, that nothing could he further from his wish than in any way to interfere with the Act to which the clause referred; but it did not appear to him that the present Bill would do so, and he should wait with great curiosity to hear in what manner the hon. Gentleman thought it would. But it might he said that, as it was at all events merely surplusage, there could be no valid objection to the introduction of the clause. But the hon. Member would recollect, or at least the House would remember, that a vast deal of argument had been based upon this very Act of Parliament, which it had been said had rendered legal the appointment of these archbishops and bishops, against whom the Bill was directed. He objected, therefore, to the confirming by a Public Act what was at present only a clause in a Private Act.
§ MR. REYNOLDS
begged to express his surprise at hearing the Attorney General calling this a Local or Private Act, whereas its last clause expressly declared that it was a Public Act. The 27th and 28th sections gave to his Grace, Daniel Murray, archbishop, and to his successors exercising the same spiritual jurisdiction as he now exercises in the diocese of Dublin, the right to appoint a clergyman, and to remove him for any cause that might 1328 appear to them to be canonical. How, then, if this Bill passed, was the Most Rev. Daniel Murray to appoint a clergyman, or how could he remove him without violating the law? If the priest were refractory, the archbishop would be obliged to put in evidence his own appointment; and how would he escape an indictment if that appointment should be a bull or rescript within the meaning of the Act?
§ SIR FREDERIC THESIGER
said, the Attorney General was quite right. In spite of the clause referred to, the Cemeteries Act was a Private Act. The recital of the titles referred to in an Act of Parliament did not create a new law, nor make Dr. Murray a legal Archbishop of Dublin. It was in fact a mere mistake, and they ought to give it their deliberate sanction, by repeating it in a Public Act. It being perfectly clear that this was so, the Attorney General was right in opposing the Clause.
§ SIR ROBERT H. INGLIS
contended that the insertion of the title of archbishop in a Private Bill was not a recognition of it by the Legislature.
§ Motion made, and Question put, "That the Clause be now read a Second Time."
§ The House divided:—Ayes 32; Noes 160; Majority 128.
§ SIR FREDERIC THESIGER,
in bringing forward the Amendment of which he had given notice, begged the attention of those hon. Members who regarded this Bill, not as an Act of vengeance for the past, but as a security for what might come, and who believed that the measure as it had come from the hands of the Government was not adequate to the occasion. He had been charged with inconsistency in the course he was now taking, as contrasted with his course in having been a party to the Act of 1846, for the relief of the Roman Catholics from penalties to which they had been made liable by ancient and obsolete statutes. He certainly had been a party to the Act of 1844, as well as to the prior Act of 1846; and if anything could have made him doubt the policy of those measures, it would have been the events which had since taken place, and which had awakened so much anxiety in the country. Could any one have supposed, when they were pursuing a course of kindness and conciliation, in relaxing the penal laws which had so long disfigured the Statute-book, that advantage would have been taken of the concessions then made to strike a blow at our national in- 1329 dependence, and to wound the dignity of the Crown? There were some far-seeing men who at that time declared their belief that by doing away with the existing securities against the Roman Catholics, we should be destroying the protection which the Legislature had guaranteed to the established faith; but the noble Lord at the head of the Government was not one of those who shared in that view. In 1846, the noble Lord said—Let us suppose, though it is almost extravagant to suppose it, that any attempt were made by the Pope to assert sovereign authority in these realms, or interfere with the Queen's Authority, my belief is, that no such Bull would be observed by any Roman Catholic, but that it would be a dead letter."—[3 Hansard, lxxxviii. 362.]The event which the noble Lord had regarded as impossible had come to pass. He asked any hon. Member who had carefully reflected on this subject, whether he entertained the slightest doubt that if they had not broken down the securities they possessed, and taken the sting out of the penal laws, these encroachments would ever have taken place? When the event which had aroused the national indignation occurred, he would do the noble Lord the justice to say that his tone and language were such as befitted the occasion, and such as became the Prime Minister of this great country. He marshalled the nation in the course which it ought to take, and the nation was ready to follow the noble Lord in all needful measures of redress. He never should forget his language in introducing the measure. Adverting to the imperial and imperious tone of the pastoral put forth by the new Cardinal, and the assertion that every religious body was the best judge of its own forms, the noble Lord said he did not dispute their knowledge of their own forms, but he had heard of another form—and that was, "Victoria, by the grace of God, Queen of Great Britain and Ireland." These were words which were adequate to the occasion; and he could not express the feelings of disappointment with which, after the magnificent prelude of the opening night of the Session, he had witnessed the impotent conclusion arrived at, and the real nature of the Ministerial measure—indeed, if the subject were not too serious, he should say it was perfectly ridiculous, after the way in which the Protestant feeling had been stirred to its very foundations. He believed that if the noble Lord had been permitted, unchecked and uncontrol- 1330 led, to pursue the course his own feelings and wishes dictated, the measure presented to the House would have been one of a different character; but he had lost an opportunity of establishing his reputation so long as history endured, by yielding to the suggestions and solicitations of others, and by "letting I dare not wait upon I would." Still they were indebted to the noble Lord for a declaration he had repeatedly made, and, as far as he was himself concerned, repeatedly adhered to. The noble Lord had stated, that in introducing this Bill, his intention was to make the law throughout the United Kingdom uniform and consistent. So recently as the hon. Member for Rochdale (Mr. S. Crawford's) Motion, he had ridiculed the notion of allowing a Rescript that would be null and void in England, to be effective and valid in Ireland. If the Bill had made no possible distinction between the different parts of the United Kingdom, he should have hailed it with satisfaction, and accepted it with gratitude as a sufficient defence against the encroachments which had been made. He felt it necessary to call the attention of the House to the real state of the law. No doubt the statute of Richard II., which was the foundation of all the law on the subject of the introduction of Bulls into this country, was imported into Ireland by the general law called Poyning's Law; that it was effective in Ireland, and sufficiently protective against Papal encroachments, appeared sufficiently from the circumstances that, in the reign of James I., Lalor, a Romish priest, was indicted on that statute in preference to the more recent statute of Elizabeth. The Acts passed in Ireland with respect to Roman Catholics in the reigns of William and Anne, were much more stringent than the contemporary English statutes; Acts passed under William actually banished from Ireland the Roman Catholic ecclesiastics, and these were continued from time to time, and were made perpetual by a statute of Anne. The operation of those Acts was never in the slightest degree interfered with until 1782, when an Act was passed which mitigated the penal provisions of previous statutes with respect to Roman Catholic priests, but which continued that remarkable clause in which an exception was made as to all persons who assumed any ecclesiastical rank or title whatsoever. That exception had never been repealed by any subsequent statute whatsoever; the Act of 1793, for the relief of Roman Ca- 1331 tholics in Ireland, left persons who assumed any ecclesiastical rank or title precisely in the same situation as that in which they stood under the Act 22 George III. With respect to the Act of 1795, for endowing the College of Maynooth, so careful was the Legislature of guarding against any recognition of the titles of any Roman Catholic priest, that the Roman Catholic clerical Commissioners named in that Act were described not by any ecclesiastical rank or title they might assume to possess, but only by their titles of doctors of divinity, and they were placed after the names of the lay Commissioners. So stood the law until the passing of the Emancipation Act of 1829, the 24th section of which imposed a penalty on persons assuming certain ecclesiastical titles, whence it had been argued that it legalised the assumption of every other title. This must appear a very absurd conclusion to every legal mind. No doubt it being contrary to law for any Roman Catholic to assume those titles, the clause in question was introduced for the purpose of providing a more easy and specific remedy, but it could not have the slightest operation in changing the previous law. But it was important to bear in mind, with respect to the 10th George IV., that it never was pretended that it would interfere in the slightest degree with the spiritual privileges of the Roman Catholic prelates. When the Act of 1829 passed, the statutes of Elizabeth existed in all their integrity, and the law against Roman Catholics was, therefore, more stringent than at the present moment; and not one of the Irish Roman Catholic prelates of that day—men certainly not inferior in piety, learning, or zeal to their successors at the present day—ever suggested that that state of the law interfered in the slightest degree with the spiritual rights of their communion; but they received the Act with expressions of unbounded gratitude. Petition after petition was presented, in which they said they utterly disregarded the titles, and that they only wished for an opportunity to exercise their spiritual functions over the poor of their communion. He wanted to know what reason existed in the state of the law for making any distinction whatever in this Bill between one part of the United Kingdom and another. The circumstances had not varied since the noble Lord, in discussing the hon. Member for Rochdale's Motion, said, that "having made the law with respect to England, he did not think they could, with any consistency, at the same 1332 time say that any person might receive a Rescript from the Pope, by virtue of which he might assume the title of Bishop of Galway, or any other town in Ireland." Had the circumstances of the case varied since then? His hon. Friend the Member for Somersetshire (Mr. W. Miles), had read to the House a most remarkable passage from one of the principal organs of the Roman Catholic body, and he could follow it up with one of even a more extraordinary description. The Tablet, the principal organ of the Roman Catholic body, alluding to the Bull received for the consecration of the Bishop of Killaloe, observed "The law is broken, thanks be to God." With respect to the colleges the writer proceeded, in terms more objectionable, and more repugnant to every feeling of our nature, to observe, "Another Rescript, another crime, another cause of thankfulness to Almighty God, and our thankfulness must be the greater because in this case the direct and main object of the Rescript, the great purpose for which it is issued is, to defeat and procure the ignominious annihilation of an Act of Parliament." Was the noble Lord right or wrong then in saying that it would be the most scandalous timidity, the basest abandonment of an undoubted right, if, under all the circumstances, the law, existing as it did, and after the repeated defiances which they had received, they were not to have an Act so framed as to guard every part of the United Kingdom against these encroachments? The noble Lord said, that he meant to include Ireland in any legislation which he offered to the House on this question; but how did he profess to carry out his intentions by this Bill? The commencement of the preamble was directed solely and exclusively to the Rescript which was issued in September, 1850, and which applied solely to England. Now, if he intended that this law should embrace the whole of the United Kingdom, would it not be the most fair, honest, and manly course to declare his intention positively upon the face of the Bill, and not to leave it to the darkness and uncertainty of inference. He (Sir F. Thesiger) proposed then by his Amendments to make the law in express terms such as the noble Lord had declared it to be his intention to make it; but which he appeared, for some reason or other, not to have courage to do for himself. Hon. Members would, therefore, find that the first Amendment which he proposed was in the preamble of the Bill, which recited 1333 that divers of Her Majesty's Roman Catholic subjects have assumed to themselves the titles of archbishops, bishops, and so on, under colour of the alleged authority of a certain Rescript, Brief, and Letter Apostolic. Instead of this, and following the advice of the noble Lord that a Rescript of this nature sent into Ireland should be equally illegal, he proposed to change the term "a certain Brief or Rescript," into "certain Briefs or Rescripts," which would include every case; but inasmuch as the occasion for legislation was introduced by the Brief dated September, 1850, he thought it right, in addition, to mark and distinguish that particular Brief as the occasion which called forth our legislation, and he would therefore add the words, "and in particular by a certain Brief, Rescript, or Letters Apostolic, purporting to have been given at Rome on the 25th of September, 1850." If the preamble was adopted in the terms which he proposed, it would of course be necessary to alter the words in the declaratory and enacting clauses from "the said Brief or Rescript," to "all such Briefs or Rescripts." He now called upon the noble Lord to say whether it was or was not his intention to include Ireland in his Bill. If he said he did mean to include Ireland in his Bill, then he asked how the noble Lord could conscientiously oppose the introduction of these words, particularly when he considered what had recently passed in Ireland, where our legislation upon this subject was converted into an occasion of defiance. Surely the noble Lord must feel that if he abandoned the position which he at first assumed—if he showed any shrinking or hesitation upon this subject, he would be giving the greatest encouragement to those who were ready, if they could, to make further encroachments upon us. Now, the preamble standing in the position in which he placed it, would appear to be perfectly impregnable. In order that the House might have a concentrative view of the different Amendments which he intended to propose, he would take the liberty, as introductory to the whole, to call their attention to another Amendment, following immediately upon that in the preamble, which was a natural and logical consequence of the first. All the arguments he had used in support of his first Amendment would equally well apply to that which he proposed in the first clause. Now, the clauses had not only a declaratory but an enacting force, and he would appeal to the noble 1334 Lord why, if Rescripts introduced into Ireland were—as he had admitted them to be—illegal and void, he did not state that upon the face of those enactments. His hon. and learned Friend the Solicitor General was asked by his right hon. Friend the Member for the University of Oxford (Mr. Gladstone) whether the Government were not inconsistent in confining their declaratory clause to a specific Brief or Rescript, when he (the Solicitor General) must have known that the Pope had recently issued a Rescript constituting a bishopric of Ross, which was equally within the terms of the law, and therefore equally illegal. His hon. and learned Friend said, that that declaratory clause would operate in Ireland, because the Judges would apply this declaration to that country. Now he (Sir F. Thesiger) conceded to his hon. and learned Friend that if any question arose with respect to the illegality of this Act, the Irish Judges would decide it according to the law which existed before the passing of this, and was applicable throughout the United Kingdom; but they would not decide it by reason of this declaratory clause, which applied only to a particular Brief issued in England. Indeed, so far from this clause having the operation suggested, he confessed that if it would have any operation at all, he thought it would be a detrimental, and not a beneficial operation, for it might be very fairly argued that when the Legislature had confined its declaration to a particular Brief which was introduced into England, that it was its intention to exclude every other; and although he was not of opinion that such an argument would avail, yet if urged with such ingenuity as was possessed by his hon. and learned Friend the Solicitor General, it might embarrass the Judges in any decision to which they were called upon to arrive. Then he (Sir F. Thesiger) would say he ought to make his Bill so plain as to guard against any misapprehension. However, his hon. and learned Friend had made an important admission when he said that he meant the declaratory clause should apply to Ireland. Passing on to the next Amendment which he intended to propose, he would call the attention of the House to that which the noble Lord had himself originally considered sufficient to satisfy the earnest desires and to allay the apprehensions of the country with respect to this aggression. He could not characterise it better than in the language of the noble Lord himself, who said, 1335 in 1846, that "as to preventing persons assuming particular titles, nothing could be more absurd and puerile than to keep up such a distinction." The noble Lord had, therefore, brought forward, originally, a measure which he admitted to be absurd and puerile; and if that was the impression of the noble Lord, which he (Sir Frederic Thesiger) was sure was shared by a great number of the community, he thought it was desirable to add, if possible, a little spirit and force to that which the noble Lord had endeavoured to make the very minimum of legislation on this question. He (Sir F. Thesiger) proposed to provide against the introduction of similar Bulls, Rescripts, and Letters Apostolic, for the future. It was remarkable that the discussion had advanced thus far, and yet no one could say what was the real operative state of the law independently of this measure. Was the statute of Richard II. a binding law, available for the purposes for which it was introduced, or was it not? The noble Lord said, he thought it would be hard to rake up obsolete penal statutes, and use them against persons who might be ignorant of their existence; and he (Sir F. Thesiger) yielded to that argument, because he thought it would not be prudent to institute a prosecution with the chance of a failure on that or any other ground. But if the noble Lord meant that the statute of Richard II. should be available for our protection now, he w could he object to the introduction of the clause which he (Sir F. Thesiger) proposed, which would bring down the law to the present day, and give it a voice in the present time, so that no one could doubt its existence? Instead, too, of the parties being exposed to the penalties of a præmunire, which were the more formidable because they were so mysterious as not to be perfectly understood, he proposed by the clause which he suggested should be introduced, as an addition to that of the noble Lord, to make the introduction of these Bulls and Rescripts illegal for the future under the very penalty which the noble Lord himself had declared sufficient to meet the emergency. He believed that nothing short of this would give us any security against the encroachments and aggressions to which we had been so unjustly subjected. But all laws, unless carried into effect, were worse than useless; they cumbered the Statute-book, and, to use the powerful expression of Lord Bacon on this subject, "There is a further incon- 1336 venience in penal law, obsolete and out of use, for it brings a gangrene, neglect, and a habit of disobedience upon other wholesome laws, that are fit to be continued in practice and execution." The noble Lord proposed to leave the execution of his measure to the agency pointed out by the 10th Geo. IV., under which no prosecution for a penalty could be instituted, except by the law officers of the Crown in England, Ireland, and Scotland. What had been the effect of that Act? That laws which were admitted to have contained sufficient powers to have prevented the assumption of any titles contrary to that Act of Parliament had been allowed to sleep; they had not been brought into operation at all, but—Have been unrolled penalties,Hung up, like unscourcd armour, on the walls,Which now for nineteen zodiacs long have slept,And never worn in use.The greater part of the difficulties that had impeded their legislation on this subject arose from its being said that the Government had connived at the assumption of these titles to which they now proposed to apply penal laws. Would such an argument have arisen had the Attorney General done his duty? Was it likely, indeed, that any Government would embarrass itself with a prosecution of this description, if they could possibly avoid it? Well, then, if they found that a power which was intended to be used for the protection of the kingdom had been allowed to slumber in the hands in which it was reposed, was it not the duty of Parliament to take care that the law which they were about to pass should be rendered efficient by being placed in other hands, not left to be administered by bauds in which experirience showed it would be allowed to remain a dead letter? It could not be supposed that he (Sir F. Thesiger) desired to degrade the office of Attorney General in proposing that some stimulus and spur should be applied; there was nothing degrading to that functionary in placing the common informer in his stead. The object of his Amendment was to give to any person the power of prosecuting, with the consent of the Attorney General; and as it was a very different thing for the Attorney General to refuse to prosecute himself, and to say to a respectable person who offered himself as prosecutor, "You shall not prosecute," the effect of his Amendment would be to stimulate the Attorney General, by placing him in a position 1337 where his responsibility would be enhanced by the applications which would be made to him, and to which he would be compelled to accede if he refused to prosecute on proper occasions. These were the Amendments which he proposed. All of them, except the last, were in accordance with the expressed intentions of the noble Lord; and there was not one of them which would be found in the slightest degree opposed to anything which he had himself expressed at any period of these discussions; they were brought forward in no spirit of hostility, but with a desire to make the measure such as should be satisfactory to the public; and it would be strange if those who in language agreed with the propositions maintained, should in act offer opposition to the Motion. He did again and again entreat hon. Members to consider the crisis at which we were now arrived. It appeared to him that the present crisis was most important to our Protestant establishment, assailed from within and from without—its position truly described by that which was said of the infant Church, "Without are fightings, within are fears." Here was an assumption of temporal and spiritual sovereignty over the whole of this kingdom, and, according to the acknowledged and admitted principles of the Roman Church, it comprehended the right to govern all persons who might be within the limits of that territorial authority, all heretics, all apostates—within which category all Protestants were included—and all baptised souls. The hon. Member for Kerry (Mr. M. J. O'Connell) said, "Why anticipate the time? Why not wait till there has been an exercise of authority over the Protestants? Because that time would never arrive until it was too late to resist—because we were dealing with a wary foe, who knew when to advance his claims, and when to allow them to be dormant—who would remain crouching in his lair till the favourable moment came for a fatal spring, and then it would be in vain to struggle; the strength would have been acquired which would be irresistible. Prudence required of us not to disregard the warning we had received, but to prepare for our security before it should be too late. Now was the time to walk round our Protestant Zion, to "tell all the towers thereof, and mark well her bulwarks," that we might be able to tell those who came after us that we had not been regardless of their most sacred and precious interests. 1338 Let us not attempt to repair a breach in our walls which, not the enemy, but our own hands, had incautiously and unguardedly made, by the rubbish which had been offered, but prepare sound, solid, and durable materials which would afford a permanent security. We were now engaged in a contest in which the eyes of the world were upon us, and in which to fail would be scandalous and disgraceful. Let us bear in mind the warning given to us by a most able writer on this important question:—If after all our protests and brave words we permit power real and substantial to be conferred upon the Pope—if we evade the real contest by a mock battle about titles, and legislate against shadows while we turn aside from the substance—then, indeed, the honour of England is trampled in the dust, and in the victory of the insolence of Papal pretension, over the dignity of our ancient and time-honoured monarchy, and the enthusiasm of our noble-hearted people, the heaviest blow that the last three centuries have witnessed will be struck at the cause of human liberty and human progress.The hon. and learned Member concluded, with moving his first Amendment, to leave out the words, "by a certain Brief, Rescript, in the Preamble, lines 5 and 6,"with a view to insert in their place "by certain Briefs, Rescripts."
In the Preamble, lines 5 and 6:—Amendment proposed to leave out the words, "by a certain Brief, Rescript," and to insert the words, "by certain Briefs, Rescripts."
§ LORD JOHN RUSSELL
The hon. and learned Gentleman has spoken with great ability, no doubt, in defence of the proposition he has brought forward; and he has told the House, after many vituperative and disparaging epithets, applied to the present Bill, that if his Amendments are accepted, they will make the Bill complete, comprehensive, and efficient; and the hon. and learned Gentleman, in terms of a similar kind, has ventured to promise that, while if the present Bill be adopted, we shall have no defence or guard, yet that, if his Amendments were adopted, you will have a complete and efficient defence against the aggression that has been made. Now, Sir, I really am surprised, considering those Amendments, and after all the hon. and learned Gentleman has said of them, that he should attribute such a mighty effect to the alterations he proposes, which go very much to points which are already in the Bill, and propose certain changes that I cannot think are either very valuable or effective for the object in 1339 view. What was it—for we must go back to that—what was it that constituted the offence in the first instance, and what were the courses that were proposed by persons of various opinions, in order to meet that offence? The offence, in the first place, was an assumption of the power, without the knowledge or consent of the Queen, in defiance of the laws of this country, to confer certain territorial titles by a foreign authority. There was, in the second place, an assumption of certain titles, pretended to he given by such authority. What we proposed, in the first place, was, to recite, in an Act of Parliament, that a certain Rescript had come from Rome, pretending to confer those titles; and we declared in the preamble of our Bill that the pretension to give such titles was altogether void and illegal. Such was the first step that we proposed; and I confess it seems to me that, even if it stood alone, strengthened, perhaps, by the introduction of the first clause, that was the best mode of meeting one part of the offence. Because, what we have to deal with, is that which, be it remembered, was open, arrogant, generally proclaimed, boasted of, and repeated, by the various organs of the press, and in the pulpits of the adherents of the Pope in this country. There were various opinions with regard to what seemed to be required; some said there should be declarations at meetings through the country; others said there should be Resolutions in Parliament; we thought there should be a Parliamentary declaration, in the shape of an Act assented to by both Houses of Parliament; but whether it was to be in the first shape, or in the second, or in the shape we adopted, what was required was a declaration aimed at the particular Act recited, and declaring it void and illegal; and thereby, if a foreign Power, on the one hand, had committed an act which pretended to sovereignty, to which as a foreign Power it had no claim, here was a declaration, on the other, solemnly made by the Parliament of England, that all such pretensions were illegal and void; and from that moment, at all events, if not before, it had ceased to have any legal effect in this country. But the hon. and learned Gentleman says you have not declared that any other rescripts, bulls, or letters-apostolic, which may he issued, shall be equally void. I own it appears to mc that, instead of strengthening your declaration by spreading it to all other rescripts, you will weaken the effect of what you are 1340 doing by using those words with regard to all other rescripts. Then the hon. and learned Gentleman comments very strongly on the terms of the first clause, and says it is wrong so far as it is confined to the first rescript. Why, certainly, we are so far responsible for that first clause that we have adopted it; but if his censure falls upon us, it falls more heavily on the hon. and learned Gentleman the Member for Midhurst, who proposed the clause in that very form. The hon. and learned Gentleman then goes on to an argument which, not being a lawyer, perhaps I should not venture to criticise; but it does appear to me so contrary to what usually takes place—so contrary to common reason—so contrary to all I have known to take place in courts of justice—and so contrary to the common sense of the world, that I cannot believe the hon. and learned Gentleman is well founded in his observations. My hon. and learned Friend the Solicitor General, being challenged by the right hon. Member for the University of Oxford (Mr. Gladstone), and asked whether, in condemning this Rescript, we did not make legal other rescripts, said that, on the contrary, this part of the Act was declaratory, and that, therefore, we are not enacting that this particular act is illegal, but declaring that it is illegal; and, therefore, it is to be presumed that, according to the general law of the country, any similar act is likely also to be illegal. It appears to mc that a Judge, having such a case before him, would say, "I see by the Act of Richard II. and by the Act of Elizabeth, that assumptions of this kind are void and illegal, and here is an Act with respect to the particular use of this power that occurred in the year 1850, and I observe that the Parliament of that day declared that the use of the power was void and illegal;" and the Judge would say, "I should conceive that confirms my view of the case, and I come to the conclusion, that the particular act before me, coining within the compass of those Acts, and being similar to the act declared illegal in 1850, is itself illegal." But the hon. and learned Gentleman says that a Judge would act in a contrary way, and say, it appears to me that all acts of this kind are legal, because I find that in 1850 Parliament particularly declared one act of this kind to be illegal. I really don't think that any Judge of common sense would come to such a conclusion as the hon. and learned Gentleman supposes. The hon. and learned Gentle- 1341 man said, his hon. and learned Friend the Solicitor General, argued, which he had argued, that this being a declaratory enactment would affect the proceedings of courts, and assist a Judge; and the hon. and learned Gentleman said he was of a different opinion—that it would entirely embarrass a Judge. The hon. and learned Gentleman provided in the preamble, as he supposed, that all Rescripts constituting bishoprics were void. All he (Lord John Russell) said was, that if they wished to give force and strength to their proceedings at the present time, they ought to make them apply to the particular act. Then, with regard to the case of Ireland, I always contended that any Bill that was introduced should affect the whole of the United Kingdom. At the same time I consider the acts of the Pope with respect to Ireland as being totally of a different nature. As the hon. and learned Gentleman compels me to argue the matter, I must put it before the House in that light. The present Pope found that from some forty years after the Reformation the Popes had successively appointed archbishops and bishops in Ireland, and had appointed them by the names of ancient sees. I find that about fifty years ago, when Dr. Troy was in Dublin, he was called by the Lord Lieutenant Roman Catholic Archbishop of Dublin; and I find that in succession the Popes have gone on as vacancies occurred, appointing archbishops and bishops in Ireland. It may be said, that in so doing they have acted against the law of this country; but still it is a totally different matter, as I conceive, from issuing letters-apostolical, appointing a new hierarchy, dividing this country of England into provinces and dioceses, and fixing that certain persons are to rule over those English counties and dioceses, by the titles of bishops and archbishops. It is evident that in the first instance, with respect to those Irish bishops, it is hardly to he expected that the Pope should act in a different manner from his predecessors, and decline to fill up vacancies as they occurred; but with respect to the second matter—this Rescript of September, 1850, that was an aggression from which he might easily have refrained. That was a subject on which he might have easily asked whether it would be offensive to the Government of this country, and whether it was not exceeding any limit he was bound to observe with respect to a foreign Power, to issue such letters-apostolic. There is, 1342 therefore, though not in strict law, in point of sense and reason, and the general opinion of the world, a very obvious distinction between that which has been done in Ireland and in this country. What is done in Ireland has been done from a short time after the Reformation down to the year 1850, and though not according to strict law, has been viewed by the people of this country without displeasure. To the succession of the Catholic bishops in Ireland, the people have been accustomed for centuries; but they saw with very great displeasure and indignation this Rescript of 1850, establishing a new hierarchy, and pretending to divide this country into dioceses. The hon. and learned Gentleman says, this measure of the Government is weak and inefficient, because it makes this Rescript illegal; and he proposes by his Amendments to make this Bill efficient, complete, and comprehensive by mixing up with it all other Rescripts; but I own that instead of making it complete, efficient, and comprehensive, the hon. and learned Gentleman certainly appears to me not to be a prosecutor, not to be intolerant, or deserving of any of the terms which Irish Members use on this subject, but only to weaken that which he pretends to strengthen. The hon. and learned Gentleman proposes to attach a penalty to the introduction of apostolic letters for the purpose of constituting a hierarchy; but it appears to me that we should confine the penalty to that which was specially forbidden by the Act of the 10th George IV. The hon. and learned Gentleman also proposes that any person may be at liberty, with the consent of the Attorney General, to institute a suit for the recovery of penalties; but this appears, according to the arguments of the hon. and learned Gentleman himself, and according to the arguments of every hon. Member who has spoken against the aggression, to me to be a matter so nearly and dearly affecting the State, that those who represent the State ought to be the persons to institute any prosecution on the subject. Now, let us consider what is the case with regard to Government prosecutions on matters that affect political conduct, and on matters in which the public interest is involved. The Government has had continually, or used to have, in regard to such questions a discretion in regard to prosecuting for such penalties. On all these questions there are four considerations for a Government to reflect upon before they institute a State 1343 prosecution on an important matter. One is—has the offence been committed? The second is—have they legal evidence of that offence? The third question is—suppose the offence has been committed, and they have sufficient legal evidence of the offence, are they likely to obtain a verdict by going before a jury? The fourth is—and it is a question that, in a State prosecution, is not to be forgotten—supposing an offence has been committed, supposing they have sufficient evidence, and supposing they are likely to obtain a verdict in a court of law, will any public end be answered by a prosecution? All those matters are matters for a Government to consider. With respect to the two first of them, there is not a week passes in which there are not libels published which are clearly offences against the law, and of which evidence could easily be procured; but with respect to most of those libels you would find that if Government brought them into a court of law, though the Judge might declare them to be libellous matters, the Jury would hold that this was a tyrannical prosecution for the purpose of screening a corrupt Government; there would be great declamation in favour of the liberty of the press, the Government would be defeated, and the defendant would come out of court with much more credit than he had before. But then comes the fourth consideration: after the law officers of the Crown have given their opinion that an offence has been committed, and they have sufficient evidence of it, and think that a verdict would be procured, it is still a serious matter for them to advise the Government, and for the Government to decide whether any public advantage would be derived from that prosecution. Wise men who have been high in the Government of the country have seen the wisdom of forbearance in cases where they clearly had the power of punishment in their own hands. There is a well-known story—not respecting a prosecution in a court of law, but with regard to a transaction in this House—that is told of Sir Robert Walpole and of Sir William Wyndham. Sir William Wyndham having uttered words that were disloyal, to show his Jacobite feeling, and his enmity to the Throne, Sir Robert Walpole said, "I see what the hon. Gentleman wants—he wants me to send him to the Tower, but I will do no such thing." He acted very wisely; the offence was committed; in five minutes the House would have decided that Sir William Wyndham should be sent to the 1344 Tower; but a great cry would be raised, he would have been represented as a martyr, and the Jacobite cause would have flourished by that imprisonment. If all those matters are to be considered before a prosecution is instituted, I say they are not matters for the consideration of every individual; they are not matters to be undertaken by a person heated by party feelings, who wishes to punish an individual or persecute an enemy, but they are serious questions that ought to be left to the decision of Government. The hon. and learned Gentleman says, that the Attorney General would have these matters brought before him. I think it would be the duty of the Attorney General in such a case to say, "If I think this is a case for a prosecution, I will prosecute it myself." If there is to be any prosecution, the Government will order it and conduct it; and if they decide there should not be a prosecution by themselves, I don't think they ought to allow any other individual to prosecute; and then what becomes of the hon. and learned Gentleman's proposition?—so that this would be, in fact, a useless clause. What was originally proposed by the hon. and learned Member for Midhurst, would have been most mischievous. It is obvious that, under the clause proposed by him, there would have been endless vexation—that the Roman Catholic bishops and priests would be subject to unceasing annoyance from prosecutions, arising out of the performance of their spiritual duties. That clause was withdrawn, and another clause is now brought in by the hon. and learned Gentleman (Sir F. Thesiger) by way of amendment of it; but in improving it in one respect, he makes it totally useless in another; and I am convinced that if any Attorney General does his duty, the clause would be a mere nullity. The hon. and learned Gentleman has given us to understand that Attorney Generals in Ireland in past times have allowed the open violation of the Act of 1829, and that they have slumbered while they were carrying on; but from that statement I entirely dissent. I believe that Chief Justice Blackburne and the present Master of the Rolls did their duty; they were honourable and independent men, and would have scorned to act in a manner that would encourage the violation of the law. At all events, if they did neglect their duty, how came it that the hon. and learned Gentleman, while he was a law officer of the Crown, did not say to the Home Secretary, 1345 I observe your law officers in Ireland are continually conniving at the violation of the law; and the dignity of the Crown and of the law is sacrificed by their culpable neglect of their duties. I think, certainly, that if the hon. and learned Gentleman saw such a case, he could scarcely have failed to make that observation, to the Home Secretary. He could not say that he, the Attorney General of England, was ignorant of what was doing in Ireland, or have said, "You have an Attorney General in Ireland, and I cannot take an account of what is passing in Ireland;" and I am sure the hon. and learned Gentleman would not shelter himself under such an excuse. I believe he really did not think that this violation of the law was ever practised, and he thought, as we and most persons thought, though there may be different opinions now, that the law was carried into effect according to its intent. If a letter appears in a newspaper signed "John of Cashel," or whatever it may be, is it to be supposed that that letter at once constitutes an offence under the Act of 1829, and that the Attorney General has nothing to do but to go into a court of law to prosecute for it? There were two things which it behoved the Government to do: first, to vindicate the majesty of the Throne and the freedom and independence of the country—that we propose to do by the preamble, with the addition of the first clause we have adopted; next, to attach a penalty to the assumption of titles in consequence of the Rescript from Rome—that we do by the second clause. But the hon. and learned Gentleman proposes to make an addition to this, and to add another offence, in addition to that which has already been declared an offence, namely, the assumption of titles; and my opinion is, that, instead of strengthening the Bill by those changes—I cannot call them amendments—he does but divide those who are opponents of this aggression, and thereby rather tends to weaken this Act. This is a question for the House to decide. The House could not but have remarked that which was done very significantly at the beginning of this evening's debate—I mean the retirement from this House of certain Roman Catholic Members, chiefly representing counties and boroughs in Ireland. In an ostentatious manner they showed they would take no part in the proceedings. Of course, they must be considered as consenting parties to whatever the majority of the House shall decide. 1346 If the hon. and learned Gentleman shall be successful, it is to the aid given by their absence he will owe that success; and I must consider them as responsible for the consequences. I certainly find nothing in the Amendments of the hon. and learned Gentleman (though I think they are objectionable, for the reasons I have stated) which would induce me to refrain, if they are adopted, from going on with this Bill, and carrying it to the other House of Parliament. I have stated my objections to the hon. and learned Gentleman's proposals, and it will be for the House to decide upon them. But I must say this of the proposals of the hon. and learned Gentleman—that they come within the general scope of the Bill—they don't go beyond the avowed and declared objects of the Bill—and I shall certainly, therefore, abide by the decision of the House.
§ MR. NAPIER
remarked that the noble Lord had alluded to the Attorney General in Ireland at a former period. Chief Justice Blackburne, as Attorney General, was not afraid to attack Mr. O'Connell, the leading Roman Catholic in Ireland; and the Master of the Rolls, as Attorney General, had also prosecuted Mr. O'Connell. With such Attorneys General there had been no violation of the law. Before the accession of the noble Lord to office, the law had not been violated. In the month of October, 1847, there was an address presented to Lord Clarendon from the Roman Catholic Prelates, and that address was signed "John, Archbishop of Tuam, Chairman," and "J. Derry, Bishop of Clonfert," as Secretary. The able reply of Lord Clarendon to that address began "My Lords;" and there the law was clearly violated. Previous to that time there had been no violation of the law. What was wanted was a reasonable, a constitutional, and, above all, an honest vindication of the law. The object of the Amendment proposed by the hon. and learned Member for Abingdon was to vindicate the authority of the law in every part of the Queen's dominions where that law was violated. If the law was the same in Ireland as in England, then let them take care, reasonably and firmly, that its supremacy was asserted in both countries. That being the aim of his hon. and learned Friend, he should support his Amendment.
The ATTORNEY GENERAL
understood the Amendments of the hon. and learned Member for Abingdon to be of a threefold nature. He proposed to in- 1347 clude in the Preamble, and in the first clause, a, reference to any other Rescripts of a similar character to that already mentioned that might have issued. He proposed also to make the introductions of any Bull or Rescript of the description named in the Bill subject to the penalties provided for the unlawful assumption of titles; and, lastly, he proposed to give private informers the power of prosecuting, with consent of the Attorney General. Now, he saw no great objection to the first of these proposals, though he thought all that it in reality proposed was better gained by the words which had been introduced by the hon. and learned Member for Midhurst, because this legislation, being induced by the aggression of the Pope, it ought to be directed against the particular act by which that aggression had been made. The hon. and learned Member says, if you do this you will exclude Ireland, whither other Rescripts have been sent. He would take issue with the hon. and learned Member on this point; for he contended, notwithstanding all that had fallen from the hon. and learned Member for Abingdon, that if they declared the law with reference to the particular Rescript named in the Bill, they did so with reference to all other Rescripts, whether in England or Ireland, and for this reason, that the law in both countries was the same, the sovereignty of the Crown in both was the same, and they directed their legislation against the aggression of the Pope, because it was an invasion of the prerogative of the Crown, and a violation of the national privileges. By declaring the law in one country they declared it in both countries; and no Judge would have the slightest hesitation in saying that the Bill, when it became law, was applicable to any and every Rescript of the kind described that could be issued. But it was, of course, for the House to consider whether it would adopt the proposal now brought before them, or whether it did not consider that a declaration would have greater effect and force if directed against this particular Rescript, than by being made applicable to all other Rescripts. He did not, however, regard this Amendment as of very vital importance. His objection to the second Amendment, which proposed to make the introduction and use of any future Rescript subject to penalties, was, that in the greater majority of instances in which there was an assumption of titles, they would make the penalties cumulative; but, 1348 with that exception, he saw no great harm in the proposal. It was unquestionably against the law to introduce Bulls or Rescripts, or any such instruments, into this country; but if this proposed additional penalty was added, the penalties might be made cumulative. The third Amendment, which appeared to him to be far more objectionable, was the introduction of common informers into the legal proceedings that might be adopted under the Act. This was a matter of serious importance, and one that it behoved the House well to reflect upon before it acted. He maintained that this was no case in which a common informer should be allowed to interfere. It was no case of the infraction of any police regulations, or of those minor laws in which the morals of society or public order were involved, or such offences as, owing to the difficulty of detection, required the vigilance of the common informer. This was a matter affecting the State and the Sovereign. It was on that ground only they were legislating, and, therefore, every prosecution should be conducted by the Attorney General, acting under the sanction of the Government with which he was connected. The only ground on which they could defend the proposition was, that they could not rely on the public officers of the Crown discharging their duty; but that was a poor compliment to pay to a public officer charged with the enforcement of the law. It was said that in Ireland the law had not been enforced; but, with all the research of the hon. Member for the University of Dublin (Mr. Napier), he could put his hand on but one solitary instance in which the law had been violated. In all other cases there were no facts on which a public prosecutor could proceed. But the case would be different now. Let it not be said the public prosecutor would not do his duty in the present state of public opinion, and with the eyes of the whole community upon him. If, in Ireland, the law had been suffered to sleep, if the law officers of the Crown did not institute prosecutions—though he denied that cases for prosecution had occurred—it might have been because public opinion in that country was opposed to the intervention of the law. But the case was different here. With the public mind in a state of excitement, with the feeling prevalent in that House, as manifested by the divisions that had taken place on this question, he was certain no law officer of the Crown would 1349 venture to sleep at his post, and that no Government would allow him to do so. By introducing the common informer, and allowing him to have part and share in the public prosecution, they would merely lower the character of the offence, lower the character of the prosecution, and detract from the effect of the penalty. It was true the hon. and learned Gentleman proposed to give the law officers a veto on the prosecution; but by allowing the private informer to intervene at all, they lessened the responsibility of the public prosecutor, which should be an undivided responsibility. Mr. Burke had long ago said that those laws were bad in principle that left prosecution to private informers, and he pointed to the distinctions that Government could make as compared with private informers. The Government, he said, could discriminate between times, and persons, and circumstances; but the mercenary informer knew no such distinction. That appeared to him (the Attorney General) to be a sufficient reason why the House should reject the Amendment of the hon. and learned Member for Abingdon.
§ Question put, "That the words proposed to be left out stand part of the Preamble."
§ The House divided:—Ayes 100; Noes 135: Majority 35.
|List of the AYES.|
|Adair, R. A. S.||Elliot, hon. J. E.|
|Aglionby, H. A.||Evans, W.|
|Alcock, T.||Fergus, J.|
|Anstey, T. C.||Ferguson, Col.|
|Armstrong, Sir A.||Foley, J. H. H.|
|Baines, rt. hon. M. T.||Forster, M.|
|Baring, rt. hn. Sir F.T.||Fortescue, C.|
|Bass, M. T.||French, F.|
|Bell, J.||Graham, rt. hon. Sir J.|
|Berkeley, Adm.||Granger, T. C.|
|Bernal, R.||Hanmer, Sir J.|
|Bethell, R.||Harris, R.|
|Birch, Sir T. B.||Hastie, A.|
|Blewitt, R. J.||Hatchell, rt. hon. J.|
|Brocklehurst, J.||Hawes, B.|
|Brockman, E. D.||Headlam, T. E.|
|Brotherton, J.||Heneage, G. H. W.|
|Brown, W.||Hobhouse, T. B.|
|Chaplin, W. J.||Humphery, Ald.|
|Clay, J.||Hutt, W.|
|Clay, Sir W.||Jackson, W.|
|Cockburn, Sir A. J. E.||Kershaw, J.|
|Collins, W.||Labouchere, rt. hon. H.|
|Cowper, hon. W. F.||Lewis, G. C.|
|Craig, Sir W. G.||Lockhart, A. E.|
|Crowder, R. B.||Lushington, C.|
|Dashwood, Sir G. H.||M'Gregor, J.|
|Dawes, E.||M'Taggart, Sir J.|
|Duncan, G.||Mahon, The O'Gorman|
|Dundas, Adm.||Matheson, Col.|
|Dundas, rt. hon. Sir D.||Mulgrave, Earl of|
|Ellis, J.||Murphy, F. S.|
|O'Connell, M. J.||Tancred, H. W.|
|Oswald, A.||Thicknesse, R. A.|
|Owen, Sir J.||Thompson, Col.|
|Paget, Lord C.||Verney, Sir H.|
|Parker, J.||Villiers, hon. C.|
|Perfect, R.||Wakley, T.|
|Pilkington, J.||Watkins, Col. L.|
|Portal, M.||Wawn, J. T.|
|Rawdon, Col.||Wegg-Prosser, F. R.|
|Rice, E. R.||Willcox, B. M.|
|Rich, H.||Williams, W.|
|Russell, Lord J.||Willyams, H.|
|Russell, F. C. H.||Wilson, J.|
|Scrope, G. P.||Wood, rt. hon. Sir C.|
|Seymour, Lord||Wood, Sir W. P.|
|Slaney, R. A.||Wyvill, M.|
|Smith, J. A.|
|Somerville, rt. hn. Sir W.||TELLERS.|
|Spearman, H. J.||Hayter, W. G.|
|Stanton, W. H.||Hill, Lord M.|
|List of the NOES.|
|Arbuthnott, hon. H.||Freshfield, J. W.|
|Archdall, Capt. M.||Galway, Visct.|
|Arkwright. G.||Gilpin, Col.|
|Baillie, H. J.||Gordon, Adm.|
|Baird, J.||Greenall, G.|
|Baldock, E. H.||Grogan, E.|
|Baldwin, C. B.||Gwyn, H.|
|Bankes, G.||Halford, Sir H.|
|Barrow, W. H.||Hallewell, E. G.|
|Bennet, P.||Halsey, T. P.|
|Bentinck, Lord H.||Hamilton, G. A.|
|Berkeley, C. L. G.||Hamilton, Lord C.|
|Blakemore, R.||Harris, hon. Capt.|
|Blandford, Marq. of||Heald, J.|
|Booker, T. W.||Henley, J. W.|
|Bowles, Adm.||Herries, rt. hon. J. C.|
|Boyd, J.||Hildyard, R. C.|
|Brisco, M.||Hildyard, T. B. P.|
|Broadley, H.||Hodgson, W. N.|
|Broadwood, H.||Hornby, J.|
|Brooke, Sir A. B.||Hotham, Lord|
|Bunbury, W. M.||Hughes, W. B.|
|Burghley, Lord||Inglis, Sir R. H.|
|Campbell, Sir A. I.||Jermyn, Earl|
|Child, S.||Jolliffe, Sir W. G. H.|
|Christopher, R. A.||Jones, Capt.|
|Clive, H. B.||Knightley, Sir C.|
|Cobbold, J. C.||Lacy, H. C.|
|Compton, H. C.||Legh, G. C.|
|Corry, rt. hon. H. L.||Lennox, Lord A. G.|
|Crawford, R. W.||Lennox, Lord H. G.|
|Cubitt, W.||Lindsay, hon. Col.|
|Davies, D. A. S.||Lockhart, W.|
|Disraeli, B.||Long, W.|
|Dod, J. W.||Lopes, Sir R.|
|Dodd, G.||Lowthcr, H.|
|Douro, Marq. of||Lygon, hon. Gen.|
|Drummond, H.||Mackie, J.|
|Duckworth, Sir J. T. B.||Macnaghten, Sir E.|
|Duncombe, hon. A.||Maunsell, T. P.|
|Duncombe, hon. O.||Maxwell, hon. J. P.|
|Duncuft, J.||Meux, Sir H.|
|Dundas, G.||Moody, C. A.|
|Du Pre, C. G.||Morgan, O.|
|Edwards, H.||Morris, D.|
|Evelyn, W. J.||Mullings, J. R.|
|Farrer, J.||Napier, J.|
|Fitzroy, hon. H.||Neeld, J.|
|Floyer, J.||Nowdegate, C. N.|
|Forbes, W.||Ossulston, Lord|
|Fox, S. W. L.||Packe, C. W.|
|Pakington, Sir J.||Stuart, J.|
|Palmer, R.||Taylor, T. E.|
|Plumptre, J. P.||Thesiger, Sir F.|
|Prime, R.||Thornhill, G.|
|Pugh, D.||Tollemache, J.|
|Reid, Col.||Tyler, Sir G.|
|Richards, R.||Vivian, J. E.|
|Rushout, Capt.||Vyse, R. H. R. H.|
|Sandars, G.||Walpole, S. H.|
|Scott, hon. F.||Walsh, Sir J. B.|
|Seaham, Visct.||Whiteside, J.|
|Smyth, J. G.||Wigram, L. T.|
|Smollett, A.||Willoughby, Sir H.|
|Spooner, R.||Wodehouse, E.|
|Stafford, A.||Wynn, H. W. W.|
|Stanley, hon. E. H.||TELLERS.|
|Stephenson, R.||Beresford, W.|
|Stuart, H.||Mackenzie, W. F.|
§ LORD JOHN RUSSELL
said, that it would be useless to divide on the second Amendment of the hon. and learned Gentleman on the Preamble, as it was merely a formal sequence to the first, and the result would, of course, be the same.