§ Order for Committee read.
§ House in Committee; Mr. Bernal in the Chair.
§ Clause 1.
§ MR. TORRENS M'CULLAGH
rose to propose an Amendment to leave out the words which enacted that the Rescript of September last was unlawful, and thereby to render all persons who might conscientiously consider that Parliament was overstepping its legitimate province of legislation, and who continued to look upon that document as of full effect, and either adopted the titles conferred by it, or countenanced the adoption of such titles, guilty of a misdemeanour, and liable to punishment. That such would be the effect of the words he took exception to, was not denied by the hon. and learned Solicitor General: the result, therefore, of passing the clause as it was would be to enact a penal law against a large class of Her Majesty's subjects. If his Amendment were adopted, it would 1413 make a difference in the moral aspect of the case, by leaving the matter merely in the shape of a declaration.
§ Amendment proposed in page 2, line 24, to leave out the words "unlawful and."
The SOLICITOR GENERAL
said, that it had been over and over again stated that there was no question whatever of the Rescript of the Pope being illegal. The grounds of its illegality were these:— By the statute of the 2nd of Richard II., as applied to Ireland by Poynings' law in the reign of Henry VII., recognised by the decision in Lalor's case, decided in the reign of James I., all these instruments were pronounced contrary to the law of the land. If the Committee consented to the Amendment, it would be to admit that there was nothing unlawful in the act itself. The clause is only declaratory, and the practical declaration did not alter the law of the land any more than it was before the clause was passed. In fact, the clause was only a solemn declaration and re-enactment of the law, which had not been infringed for more than 300 years.
§ MR. GRATTAN
said, that however unlawful the Rescript of the Pope was here, it was not so in Ireland. No one could deny that whatever issued from the Pope on ecclesiastical matters had full force in Ireland, whether Rescript, Letter Apostolic, or Bull. Was it the intention of the Government to put down the Roman Catholic religion in Ireland altogether by this Bill, and that while they professed to leave the Emancipation Act of 1829 intact? He could not understand such tricks as those of repealing the Act of 1829, either by open means or surreptitiously. He had not been brought up to them, though he had been twenty years in that House. How could the Pope of England be expected to respect a legislative assembly that was trying to do in an underhand manner what ought to be done, if done at all, in an open and undisguised form? The people of Ireland were so frightened by the present system of legislation that they were taking wing and flying to America in hundreds every week. He wished to know whether, if the Bill passed, the right hon. and learned Attorney General for Ireland would dare to indict the Roman Catholic Archbishop of Dublin? A former Government had, to be sure, indicted the late Mr. O'Connell; they had indicted him twice; but what did they get by it? Why, literally nothing. The 1414 Act of Union in 1800 had made Ireland a Roman Catholic country, and this Bill would continue it a Roman Catholic country. Every Irish Member was fully justified in opposing a measure so fraudulent and disgraceful as the present. The Government said that in proposing it they had yielded to the voice of the people; but for twenty-nine years they had resisted the voice of millions who had been crying out for justice to Ireland. He had no objection to adopt the advice given the other night by a noble Lord opposite (the Earl of Arundel and Surrey) and to walk arm in arm with that noble Lord out of the House. He was anxious to show in every possible way that he was not a party to a miserable, deceitful measure like this, which did not satisfy anybody; and, notwithstanding the introduction of such a Bill, he still entertained hopes that England and Ireland would continue to be united, not by means of penal laws, but by the laws of equality and justice. They could not coerce or indict—do as they pleased—8,000,000 of the people.
§ MR. CONOLLY
said, that the Bill was merely a defensive measure, prohibiting, indeed, the assumption of territorial titles by bishops of the Roman Catholic Church, but neither prohibiting the enjoyment of his religion by the Roman Catholic, nor interfering with the spiritual functions of the Roman Catholic bishops. Hon. Gentlemen who opposed the Bill had uncandidly argued and put in legal opinions, upon special cases, drawn up for the purpose, to show that the Bill aimed at their religion. But that position had been denied by the law officers of the Crown, by the most eminent lawyers on the Opposition side of the House, and by the high authority of the Lord Advocate of Scotland; and this being the case, the argumentum ad misericordiam founded upon that position fell to the ground. The simple question, then, before the Committee was, whether or not the Pope was to be allowed, in this aggressive manner, to appoint his bishops with territorial titles within the realm of England? The Papacy did not confine its operations to the extension of its religion. On the contrary, it tampered with civil affairs, and ever since the time that the Pope first acquired strength enough to make his influence felt in Europe, he had always made such political use of Christianity as led to that which he (Mr. Conolly) now apprehended — a dangerous collision between 1415 the spiritual and temporal power, the creation of a power independent of the law of the land, and, therefore, irreconcilable with the complete supremacy of that law. The late Sir Robert Peel himself had declared that he entertained distrust of the Roman Catholics, not on account of the peculiarity of their faith, but because there was engrafted on their religion a scheme for the furtherance of the power of man over man. That had always been the genius and spirit of Roman Catholicity; and they ought to be glad that it had been exhibited in this country by an overt act, such as the usurpation against which this Bill was directed. The noble Lord at the head of the Government had drawn a sound distinction between the temporal and spiritual power—he had drawn a just line of demarcation between the two. In stating to the Power which he meant to restrain, "Thus far shalt thou go, and no further," he had acted with temperate and wise discretion. Hon. Members exclaimed against the Bill as an infringement of religious liberty; and some had joined in that exclamation who sat on the benches near him. Had the latter reflected that the Roman Catholic priests did everything in the name of religion, and that in using this argument they had bound themselves up with the enemies of their faith? Civil and religious liberty must go together, and if they exalted one beyond the other, they would find it was a despotism of the worst kind.
§ MR. FREDERICK PEEL
had no wish to follow his hon. Friend through the remarks he had made on the main question of this Bill; but he confessed that his mind was in such a state of uncertainty with respect to the probable range of this clause, that he felt inclined to support the Amendment of the hon. and learned Gentleman (Mr. M'Cullagh), or indeed he might say any amendment which would weaken its effect. He really thought that the Committee would expose itself to the imputation of inconsistency of conduct, if, after having deliberately consented to reject two clauses which stood in the Bill as it was originally introduced by Her Majesty's Government, and that on the recommendation of the right hon. Gentleman the Home Secretary, it should now consent to adopt this clause, unmodified in any respect, and which had been borrowed by the Government from the Amendments proposed by the hon. and learned Member for Midhurst (Mr. Walpole). Let the Committee recol- 1416 lect the circumstances under which it had consented to waive those two important clauses. The right hon. the Home Secretary informed the Committee that subsequent to the introduction of the Bill it had been discovered that, under certain circumstances, such, for instance, as the Charitable Bequests Act, it might happen that a Roman Catholic priest would be required to produce in a court of law, with a view to establish his title to a donation given under the Charitable Bequests Act, the letters of his ordination and the instruments of his institution or collation to his benefice. These letters and instruments were invariably signed by the dignitaries of the Roman Catholic Church, by the style and title of the sees to which they were nominated and appointed by the Pope. Yet the courts of law in Ireland had not considered these documents inadmissible in evidence, on the express ground that, though the open assumption of titles was prohibited, there was no express declaration in the Roman Catholic Relief Act that these titles were in themselves illegal and void. If that were so, how would it be consistent in them to adopt this clause without any modification whatever, which declared that this Brief, and all titles derived under the Brief, were illegal and void? Was it not clear that if they expressly declared that this Brief issued by the Pope was of no effect in law, and was to be deemed and treated as non-existent, no court of law in the world could recognise a title used under such Brief, and subscribed to any instrument whatever, whether for ordination or collation, as valid and sufficient to designate the party. These were the circumstances: let them reconcile them if they could, if not, let them introduce some modifications into this clause. It might be said that this clause referred only to one particular Brief—that it concerned England alone—and that Ireland, with respect to which the Charitable Bequests Act alone was in force, could not be prejudiced by it. But then they must observe that the clause was a declaratory one. It re-enacted the existing law, in terms, perhaps, which only struck at one particular Brief; but substantially it declared that every Brief and every title derived from the Pope as the source of its origin and the fountain of its derivation, were illegal and void. But it might be said, that the clause was an innocuous one, as it only re-enacted the existing law. But then the very fact that they were under 1417 the necessity of re-enacting laws which were already in force, proved that the old law had been allowed to fall into desuetude, if not into oblivion. There were, no doubt, a number of penal enactments, if they chose to search for them, still on the Statute-book. There was, for instance, the 16th section of the 1st of Elizabeth, which contained several penal enactments; but these Acts had been allowed to fall into oblivion, and the documents which they now proposed to prohibit had for a length of time been permitted to be put in evidence. Because of these circumstances, he was anxious to see some modifications introduced into the clause, which would remove the objections he entertained to it as it now stood.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided:—Ayes 179; Noes 43: Majority 136.
§ On Question, "That the Clause stand part of the Bill,"
§ MR. REYNOLDS
begged to ask the noble Lord at the head of the Government a question. Bearing in mind the differences of opinion that existed between several eminent lawyers with reference to the probable effect of this clause—particularly to the differences between the hon. and learned Attorney General and the hon. and learned Solicitor General on this subject, and also to the differences between both and the hon. and learned Member for Midhurst (Mr. Walpole), and coupling both with the able argument which appeared in the Government organ of this morning—he meant the Times newspaper—he was anxious to ask the noble Lord, whether he was now determined to persevere in proposing that this clause should be adopted by the Committee?
§ LORD JOHN RUSSELL
said, he had not perceived the difference of opinion between the law officers of the Crown and other hon. and learned Gentlemen, to which the hon. Member had referred, and it was certainly his determination to go on with the clause.
§ MR. KEOGH
said, he did not expect any other answer from the noble Lord, because the hon. and learned Solicitor General stated at an early period of the evening that it was impossible to abandon this clause. Yet he could not understand how it was impossible to abandon it, for the Bill as it was originally introduced did not contain the clause. It was adopted by 1418 the Government at the suggestion of one of their political opponents. There was no declaration of the House in its favour; there was no vote of the House in its favour. The noble Lord was only responsible for it in so far as he had taken it from the hon. and learned Member for Midhurst. When that hon. and learned Member first gave notice of his Amendments, and particularly of this clause, the Dublin Evening Post, the official organ of the Government in Dublin, and every other organ and every supporter of the Government in Ireland, went about drawing a contrast between the Bill of the Government and this clause; and they said, "Why do you oppose Her Majesty's Government—their Bill is not so bad as the hon. and learned Member for Midhurst would make it, and they will do all in their power to oppose his Amendments?" And yet the House had hardly reassembled after the recess when the noble Lord informed them that he had adopted this, the most important and the most obnoxious of the hon. and learned Member's Amendments. As the noble Lord had ventured to say he was unaware of any difference of opinion between the law advisers of the Crown and the hon. and learned Member for Midhurst, he would undertake to make it intelligible to the noble Lord. The hon. and learned Member for Midhurst was now present, and would correct him if he should misrepresent what had fallen from him. He understood the hon. and learned Member to declare that the clause now before the Committee did not apply to Ireland. [Mr. Walpole signified his assent.] The hon. and learned Gentleman assented to that statement, as he expected he would. Now, what said the hon. and learned Solicitor General? In reply to the right hon. the Member for the University of Oxford (Mr. Gladstone) he distinctly said that this was a declaratory clause, and that it necessarily included the creation of the bishopric of Ross in Ireland. The Solicitor General was in his place, and he called upon him to say whether he had correctly quoted his language. [The SOLICITOR GENERAL made an affirmative gesture.] The Solicitor General also assented to the correctness of his statement. The two hon. and learned Gentlemen were therefore in direct contradiction to each other. And yet the noble Lord could not conceive the contradiction between those two declarations. Then the hon. and learned Attorney General said that this was a declaratory law, and that 1419 it declared that the Brief was unlawful. Now, there was no lawyer who could say that any act done under the Brief was as much unlawful as the Brief itself. He appealed to the hon. and learned Member for the University of Dublin (Mr. Napier), and the hon. and learned Member for Cork (Mr. Serjeant Murphy), whether it was not so, that the exercise of any authority under an unlawful brief would not be itself a violation of law, and punishable as such. But what said the hon. and learned Attorney General? That this clause would not affect Ireland as regarded criminal consequences. The moral to be deduced was, that the hon. and learned Member for Midhurst said the clause would not touch the case of Ireland; and the noble Lord at the head of the Government was afraid to make it applicable to Ireland, because he dreaded the consequences it would have there. The noble Lord and all his supporters and friends disclaimed his intention to entertain such a proposition; but, in order to give a sop to this side of the House, he was ready to take the version of the hon. and learned Solicitor General, who said that it must apply to Ireland. Then there was a third party to be dealt with—the representatives of Ireland, some supporters and some decided opponents of the Government. It was necessary something should be done to bamboozle them; and therefore the hon. and learned Solicitor General said it was only a declaratory Act, affecting nobody, doing nothing, and leaving the law exactly as it was. That being so, then came the proposition, was the act against which they were legislating unlawful? The hon. and learned Solicitor General assumed that there was no lawyer in the House who would say that it was not unlawful; but he (Mr. Keogh) was prepared to meet that proposition. He would ask, after the legislation of the last fifty years, was it not incumbent on the law advisers of the Crown to prove to demonstration that it was unlawful before the House was required to assent to that clause? Was it fair, or just, or right, to come down and say "Everybody knows that the bringing in a Brief or Rescript is unlawful, ergo, the law is so;" and to pass this clause without any necessity being assigned for so doing? True, there was the argument of the hon. and learned Solicitor General, with great equity knowledge, to show that it was illegal; and the hon. and learned Attorney General, with great candour confessing that no 1420 one could expect him to enter upon a law argument in that House, thought that the clause could have no criminal effect in Ireland, that it merely left the law as it found it, and that, in short, it did nothing at all. Still, what proof was there of its being unlawful? Was it unlawful under the 13th of Elizabeth, or the Act of Richard II., or was it unlawful under both? He (Mr. Keogh) said, as regarded England, the 13th of Elizabeth made it unlawful. The Act of Elizabeth made the offence high treason. By the Act of 1846, commonly called Lord Lyndhurst's Act, the penalties under that statute were repealed. He appealed to the hon. and learned Member for the University of Dublin, whether, if it was not an offence at common law, and he did not apprehend he would say it was, thus removing the penalties did not remove any offence under the Act? The hon. and learned Solicitor General said, Lalor's case proved the contrary, and the statute of Richard II., by Poynings' Law, was made applicable to Ireland. He (Mr. Keogh) contended that the statute of Richard II. was applicable to an Established Church, with universities, titles, and privileges, and did not apply to a dissenting Church, as that of the Roman Catholics, and, therefore, that Lalor's case did not prove the proposition of the hon. and learned Gentleman. At the time of Lalor's case, the very belief in the Roman Catholic religion was proscribed, and it was not only illegal to bring in a Bull, but to profess that religion. By reference to the State Trial papers, it would be found that Lalor was prosecuted for having—"instituted divers persons to benefices with cure of souls, granted dispensations in cases matrimonial, pronounced sentences of divorce between divers married persons, and done other things, appertaining to ecclesiastical jurisdiction.The charge of preferring to benefices and sentencing to divorce, showed that the Crown lawyers looked to the exercise of ecclesiastical jurisdiction as connected with an Established Church. But, even supposing that such was not the case, he ap-appealed to the noble Lord (Lord John Russell), not as a lawyer, but as a statesman, legislating for the interests of all Her Majesty's subjects, whether, after his great career, he would rely on one or two old musty statutes in order to lay the foundation for a Bill affecting the liberties of 8,000,000 of those subjects? He (Mr. Keogh) was not, however, driven to have 1421 recourse to the sympathies of the noble Lord. He would refer to the statute of 1846—the Charitable Bequests Act. It was introduced in 1845, under the administration of the late Sir Robert Peel, and was not very popularly received in Ireland, because of the restrictive clauses which it contained; but the educated portion of the Roman Catholic body saw that great advantages would he conferred on their Church, and supported it by every means in their power. He would ask the right hon. Baronet the Member for Ripon (Sir James Graham) if it was the intention of the Government to keep in full force and efficiency those restrictions to which the noble Lord at the head of the Government and the legal advisers of the Crown had referred? It was perfectly impossible it could ever have been intended to do so. He turned to the statute itself, which had been treated cavalierly by the hon. and learned Solicitor General; and that was not the only thing the hon. and learned Gentleman had treated cavalierly. It was very easy to exhibit levity in the front of 250 Ministerial supporters, and to treat with levity the few who were defending, as they believed, the religious liberties of their fellow-countrymen; but he begged the hon. and learned Gentleman to recollect the many and multifarious contradictions, the slips, the mistakes, the errors, and the miscalculations which his predecessor and those who were joined with him had made before he (the Solicitor General) again condemned those who were opposed to this Bill. Referring to the Charitable Bequests Act itself, by the 6th section the Commissioners of Charitable Bequests, consisting of Protestants and Catholics, were obliged to acknowledge the usage and discipline of the Roman Catholic Church in Ireland, as certified to them by the Roman Catholic bishops, in any case in which the devise or bequest might be affected by that usage and discipline; and by the 15th section persons were enabled to convey property for the maintenance of archbishops, bishops, and deans of the Roman Catholic Church in Ireland; how, he asked the hon. and learned Solicitor General, was that point to be determined? Would it or would it not be by a reference to the Papal Rescript or Letter Apostolical, by which the bishop was created? Passing over the rubbish about the procession of the Roman Catholic prelates to the Synod of Thurles, and the terms of exaggerated eulogium in which the Lord 1422 Lieutenant of Ireland had over and over again addressed the Roman Catholic bishops, he asked the noble Lord (Lord John Russell) whether the Government could pretend to be ignorant as to who the Roman Catholic prelates were? At a remarkable period of modern history—in August, 1799, Lord Castlereagh, at the instance of Mr. Pitt, addressed some celebrated questions to Dr. Troy, then Roman Catholic Archbishop of Dublin, with the view of obtaining some information relative to the Roman Catholic Church in Ireland. The nature of the questions would be apparent from a few, the first of which he would read to the Committee, with the answer it received:'—1. What are the Roman Catholic bishoprics in each province, and which of them are united, and what is the income of each see, and whence docs it arise, and what are the commendams held with each?—There are four metropolitical bishoprics in Ireland, which denominate the four ecclesiastical provinces into which the Roman Catholic Church is divided, viz., Armagh, Dublin, Cashel, and Tuam. In the province of Armagh are the following Roman Catholic bishoprics:— Meath, Clogher, Raphoe, &c. In Dublin five deaneries, &c. The Irish Roman Catholic Church has no particular liberties (as the Gallican). There is no particular regulation in Ireland as to appeals to Rome, such appeals being regulated by the regular canons of the church.—Signed by J. T. Troy, Roman Catholic Metropolitan of Dublin; Edward Dillon, Roman Catholic Metropolitan of Tuam; Richard O'Reilly, Roman Catholic Metropolitan of Armagh; Thomas Bray, Roman Catholic Metropolitan of Cashel.That was a document in answer to the queries of the then Ministers of the Crown, disclosing entirely the state of the Roman Catholic Church in Ireland; and did the present Government, not to talk of their own acts since, pretend to ignore the existence of that Church? Did the hon. and learned Solicitor General mean to state, as a lawyer in this House, with any chance of having his opinion respected out of doors, that the Act of 1846, introduced by the Government of the late right hon. Baronet (Sir Robert Peel)—referring to the usages and discipline of the Roman Catholic Church in Ireland, and authorising the Commissioners to inquire into that usage and that discipline, and compelling Protestant Commissioners blindly to obey what they represented as the usage and discipline—was to be considered as nothing, and that now, in 1851, the Government could come down with this wretched Bill, "this thing of shreds and patches," not a thing honestly believed or fearlessly introduced, but borrowed in pallid terror 1423 from every quarter of the House, and say they were not destroying the religious liberties of Ireland. He well remembered the words of the right hon. and learned Master of the Rolls, that the thing must be done in as quiet a manner as possible; and he asked the noble Lord was that in-sidiousness, or was it not? The hon. and learned Solicitor General had not forgotten the words, or how to act upon them. He had been pressed over and over again by the hon. and learned Member for Dundalk (Mr. M'Cullagh), to say whether the Bill abolished those Bulls and those Rescripts; and the noble Lord had over and over again declared that it was perfectly impossible that the Roman Catholic religion could exist in Ireland, without admitting them. The hon. and learned Solicitor General was asked whether they would be rendered illegal or not; and his answer was, "This does nothing but declare the law as it stood before." Would the noble Lord, or the House of Commons, that had been trying to set right the errors of centuries, adopt a clause on which there was a shadow of doubt whether or not it would paralyse the existence of the religion of 8,000,000 of Her Majesty's subjects? It was the business of that House to make legislation certain, as it was the business of the Judges to make decisions final. It was the business of that House to see that there should be no doubt, and that the Roman Catholics of Ireland, and of every portion of the empire, should enjoy the free exercise of their religious belief. He said the assertion that they were only now declaring the law as it was in 1829 was hastily, inconsiderately, and recklessly made; that there had been an unbroken existence of the Roman Catholic hierarchy in Ireland; that it was essentially a diocesan hierarchy, and not of vicars-apostolic, as in the case with which they professed to deal; and that this clause declared whatever was done by these Roman Catholic bishops illegal, by rendering the source and fountain of the ecclesiastical authority illegal. Was it desirable to do that? What did the noble Lord mean by saying he did not wish to carry it one step beyond the necessity of meeting this so-called aggression? He (Mr. Keogh) agreed with the hon. and learned Member for Midhurst (Mr. Walpole) that the more dignified course was to deal only with the act from which they were smarting; and he would test the sincerity of the noble Lord (Lord John Russell) by asking him 1424 to restrict the clause to England, and not to infringe on the liberties of the Roman Catholic Church in Ireland. On the last night of the discussion he took the liberty of moving an Amendment which the House rejected. He suggested that Amendment, not for the purpose of wearying the House, but for the purpose of testing the sincerity of the Government, whose previous declarations he believed it embodied; and for the same purpose he now begged to move that the words "in England" be inserted after the words "unlawful and void."
§ Amendment proposed in line 24, to add at the end of the clause the words "in England."
§ LORD JOHN RUSSELL
I expected to hear from the hon. and learned Gentleman that this clause is not founded in law. I have heard hon. and learned Gentlemen on every side of the House support the proposition that the clause is explicit, and lays down correctly the law of England, that that proposition cannot be contravened; and I have listened, I must say in vain, to the hon. and learned Gentleman the Member for Athlone (Mr. Keogh), for any proof that such is not actually the case. The hon. and learned Gentleman has told us, for the third or fourth time, that this Bill is inoperative, but he has not favoured us with any arguments to prove that assertion. Let us consider what is the evil which we propose to remedy. A Rescript or paper has appeared in this country founding an archbishopric of Westminster, and eleven or twelve other sees of bishops—of Southwark, of Birmingham, of Clifton, and various other places. It is affirmed in the preamble, as originally introduced, that—"the attempt to establish, under colour of authority from the See of Rome or otherwise, such pretended Sees, Provinces, or Dioceses, or Deaneries, is illegal and void.And in conformity with the Preamble the first clause says, that—"the said Brief, Rescript, or Letters Apostolic, and all and every the jurisdiction, authority, preeminence, or title conferred, or pretended to be conferred thereby, are, and shall be, and be deemed unlawful and void.Now, one would expect that the hon. and learned Gentleman would show that the See of Rome has the power and authority to establish an archbishopric and sees of bishops in this country; that what has been done has been in strict conformity with the law of England; and therefore that the assertion contained in this clause, as well 1425 as the assertion contained in the preamble, is unfounded, and therefore the Committee ought not to agree to the clause. Has the lion, and learned Gentleman done that? Has he said a single word in support of such a proposition? No, he has not, and therefore I contend that he has not made any argument against this clause. He has raised various arguments with respect to the extension of this clause to Ireland, and as to the effect it might have in Ireland; but the hon. and learned Gentleman has not favoured us with a single argument with respect to that which is the main proposition—that the Rescript which has appeared pretends to found bishoprics without authority, and is a void and unlawful act. Then he asserts there is a great discrepancy between the hon. and learned Member for Midhurst (Mr. Walpole), and the hon. and learned Solicitor General. The hon. and learned Gentleman (Mr. Keogh), or some other hon. Gentleman, asked the hon. and learned Member for Midhurst whether this clause was intended to apply to England; and the hon. and learned Member for Midhurst said, as every one expected, that he intended the clause to apply to England, because it was intended to apply to the Rescript dated the 29th of September last, of which we have heard so much—the clause was expressly made for that Rescript, and professed to declare that Rescript, and all authority under it, illegal and void. Then the right hon. Gentleman the Member for the University of Oxford (Mr. Gladstone) said, "If this is the effect of the clause, we get into a great contradiction, for we are about to say that it is unlawful for the Pope to establish a bishopric in England; that no such authority is good in law; but that he may in Ireland establish any new bishoprics which he pleases, as witness the Brief the other day by which he pretends to create a bishopric of Ross, so that what is unlawful in England, is good and lawful in Ireland." The hon. and learned Solicitor General said, "By no means; this is not an enactment applying especially to England, but it is a declaration by Parliament, that the attempt to establish sees in England shall be unlawful and void, and therefore, in point of argument, the law being the same for both countries, any court of justice would hold that what is unlawful and void in England, is unlawful and void in Ireland." I have still, therefore, to learn that the hon. and learned Member for Midhurst is at variance with my hon. 1426 and learned Friend the Solicitor General, or that he contradicts the statement made by my hon. and learned Friend. The hon. and learned Gentleman the Member for Athlone says, "But if this be the case, the exercise of the Roman Catholic religion is forbidden in Ireland." I do not think he made any way in that argument; neither, as I understood him, could he make any way in proving, that by the present law in Ireland, the Pope (or the See of Rome) may establish bishoprics at any time he likes in that country. The hon. and learned Gentleman began by contradicting the authority of Lalor's case. He did so on an extraordinary ground, that, not being good law, it does not apply to the present case.
§ LORD JOHN RUSSELL
At all events, the hon. and learned Gentleman said that the exercise of the Roman Catholic religion was forbidden at that time, and that consequently the case did not apply to the present measure. But the fact was that the very statute upon which Lalor was convicted was the statute of Richard II., a statute passed in Roman Catholic times— in times when the Roman Catholic religion was not forbidden, but was universally professed. Therefore, that part of the argument of the hon. and learned Gentleman could not apply to the present case. But, in point of fact, Lalor's case did not refer, as the hon. and learned Gentleman alleged, merely to sentences of divorce and the like, but to various acts of jurisdiction which he was stated to have exercised in virtue of authority from Rome; and the decision in that case was, that all such attempts to exercise jurisdiction by authority from Rome were unlawful and void—the authority of which decision remains to the present day. But then the hon. and learned Gentleman finds in the Charitable Bequests Act what he conceives gives the power to the Roman Catholics in Ireland to establish bishoprics, and to organise that Church in any way they think proper. The hon. and learned Gentleman, and the Committee, will recollect that in all the arguments on this subject, the Government have said that no doubt the Roman Catholic bishops in Ireland, though they do not assume the titles of the sees, do exercise their episcopal functions within the ancient dioceses—that 1427 is, that it has never been opposed—never, in any way, interfered with, so long as they do not openly contravene the law of the land, and set the law at defiance, by assuming titles that were forbidden. Now, I am not only stating that that is the case, but that I hope it may remain so. I do not see any reason for interfering with the Roman Catholic bishops in the exercise of their functions. But the Charitable Bequests Act, instead of being, as the hon. and learned Gentleman says, a solemn and public recognition of these powers and authorities, is an Act which, as I have stated upon a former occasion, carefully and sedulously, and as I think skilfully, avoids any such interference. In speaking of the bishops, it does not say "bishops exercising spiritual jurisdiction," "bishops exercising spiritual authority over any diocese," or "Roman Catholic bishops ruling and governing any diocese," as we have heard said in this country; but it says "bishops officiating (not within any diocese, but) within any district;" therefore that bishops officiating within any district may he a bishop of a diocese, a vicar-apostolic, or Any bishop having the orders of a Roman Catholic bishop. But there might come a question with respect to certain persons— for example, with respect to a Roman Catholic priest in any district in which he officiates. There might be a question whether there was any authority from a bishop or from Rome, by virtue of which that priest exercised his functions; and that difficulty, if it arose, might cause considerable embarrassment to the Commissioners, because if they were to produce that title before a court of law, that court might say, "This is a title which no Roman Catholic bishop or Roman Catholic priest can assume; and therefore it is a title by which they cannot take this property." But there the Bill most prudently said—if there is any question as to the person who is entitled to receive the benefit of any bequest, that question is to be referred to a Committee, and in the case of the person being a Roman Catholic, that Committee is to consist solely of the Roman Catholic Commissioners. Those Roman Catholic Commissioners, according to the rule of their own Church, will decide who is the person to receive it, and they are to report, not that a certain person is priest of such a parish, not that he is bishop of Limerick or any other diocese, but they report, according to the terms of the Act, who is the person that ought to 1428 receive the benefit, according to the intention of the donor; and, therefore, if they say the Right Rev. Br. Ryan, or the Rev. Mr. O'Connell, or any other person, as the case might be, is to receive the benefit of this bequest, that is sufficient for the Commissioners, and no question with respect to the assumption of an illegal title can come before the public, or the courts of law. Such was the care with which that Bill had been framed—a most useful Bill introduced for most useful purposes, and worked out in a manner to make those useful purposes practically beneficial. I think, therefore, in neither of those points —that with respect to the Lalor case, or the Charitable Bequests Act—has the hon. and learned Gentleman made out that there is any lawful power or authority in the See of Rome to erect bishoprics and to give episcopal jurisdiction and authority. That deals with the whole of what the hon. and learned Gentleman tried to prove. He did not attempt to prove that there was any such authority with respect to England; he did attempt to prove it as regards Ireland. With respect to the practical effect of this Bill, I must say, as, indeed, I have said often before, that I conceive there is hardly any part of it—though it is a Bill for the United Kingdom, and therefore extends to the United Kingdom—which will practically have any effect upon Ireland. With reference to the bishopric of Galway, it would prevent any person assuming such a title. If there is any doubt about any person having any claim to assume the title of Archbishop of Tuam, it would affect him, and make it unlawful to assume that title. But with respect to all other matters, I conceive this Bill will leave the state of Ireland, after it has passed, as nearly as possible what it is at present. With respect to the first clause, it declares that to be law which -no lawyer has denied to be law; which even the hon. and learned Gentleman (Mr. Keogh), with his able argument has not denied to be law; and therefore it does not make a new law, but declares that to be law which in Ireland as in England is now the law of the land. With respect to the second clause, it prevents the assumption of new titles which are not now the sees of bishops. But every one knows that the Roman Catholic bishops in Ireland were in the habit of assuming the titles of existing sees, such as Armagh, Dublin, Cork, or Ross— and not the title of a new see, and therefore would not be affected by this clause. 1429 The Bill therefore is, as I think it ought to be, directed to the particular offence which has been given to the Crown, the Parliament, and the nation, and it does not do anything unnecessary for that purpose. On the other hand, if we made it, as the hon. and learned Gentleman proposes, a declaration of law solely as regards England, it would be a proclamation that hereafter that which has not hitherto been the case would be the case—that the Pope might at any time erect new sees in Ireland, and have jurisdiction and authority in Ireland, notwithstanding the prerogative of the Crown, and the independence of this nation. That would amount to a great change of the law, in derogation of the authority of the Crown, and of the independence of this nation; and I trust this House will never sanction any such proceeding, It may suit the purpose of the hon. and learned Gentleman (Mr. Keogh), or of other Gentlemen, to make a great agitation in Ireland, and to proclaim, as I have seen it proclaimed in some resolutions that came from Tuam, that hereafter the bishops would be driven out of Ireland, and that the chapels would be levelled to the ground. These are statements that may impose upon the ignorant people; but every one knows that after this Bill is passed, there will he the same perfect freedom of conscience and the full exercise of the Roman Catholic religion as before. But some Gentlemen get up and say, "After all, we Roman Catholics are the best judges of what is necessary for the Roman Catholic religion." I must say, stop a little. I am quite willing that you should have everything you think proper for the exercise of your religion and the organisation of your Church, provided you do not interfere with others. So long as you choose to have two bishops in England, or four, or eight, or twelve, that is a matter with which I have no concern. Whatever the number which you think necessary to the organisation of your Church, that is a matter in which I did not interfere. But when you come and say you must rule English counties, and English places, you might just as well say, because the Act of 1791 says, that the Roman Catholic priests are free to perform mass, that you cannot perform mass unless you go into Westminster Abbey. Now, I say you are at liberty to perform mass everywhere you please—in any chapel you may think necessary for the purpose; but Westminster Abbey you have no right to, and 1430 into Westminster Abbey you shall not come. As to the organisation of your Church, you may organise it as you please, provided you do not interfere with the independence of the nation, and subject it to a foreign Power.
§ MR. ROCHE
said, that if the Bill did not infringe upon the rights of the Irish Church, how was it that Ireland was not excluded from the Bill? He must tell the noble Lord (Lord John Russell) that he failed altogether in answering the legal and logical arguments of the hon. and learned Member for Athlone (Mr. Keogh). What his hon. and learned Friend said was this, that the clause would extend to Ireland, and in doing so, would interfere with the functions of the bishops and clergy of that country; and the noble Lord at the head of the Government merely answered by saying, that under the Charitable Bequests Act they could ascertain who the bishops and parish priests were; but how could that be done if they declared the Rescript to be illegal? As regarded Ireland, the noble Lord was attempting to push back enlightenment and civilisation in that country; he was attempting to interfere with the Roman Catholic Emancipation Act, and therefore it was he (Mr. Roche) and his friends called upon the Committee to except Ireland from this Bill. If there was anything in the world wanted more than another for the development of the resources of Ireland, it was peace and tranquillity. They knew nothing and cared nothing about Popish aggression in that country. Protestants and Roman Catholics were beginning to act together for the development of its resources in a brotherly spirit; and he must say, that the Government, in persisting, merely for the sake of gratifying a vulgar and bigoted party in this country, by including Ireland in that Bill, had done an immense amount of mischief, which, as a Government, they would never be able to remedy. He saw with regret that the Protestants of Ireland had followed the bad example set them by the noble Lord, and had sent petitions to that House against Papal aggression; but the time would come when the Protestant feeling of England, as also the noble Lord opposite, would abandon them, and then they would have nothing to depend upon with respect to the feeling of this country in their favour. The noble Lord had referred to the agitation in Ireland; but he begged to tell the noble Lord that if any evil consequences should arise out of that agitation, 1431 he had himself alone to blame for it for not excepting Ireland from the operation of the Bill.
§ Question put, "That those words be there added."
§ The Committee divided:—Ayes 39; Noes 84: Majority 45.
|List of the AYES.|
|Anstey, T. C.||Meagher, T.|
|Arundel and Surrey, Earl of||Monsell, W.|
|Moore, G. H.|
|Blake, M. J.||Murphy, F. S.|
|Blewitt, R. J.||Norreys, Sir D. J.|
|Corbally, M. E.||Nugent, Sir P.|
|Devereux, J. T.||O'Brien, J.|
|French, F.||O'Brien, Sir T.|
|Gibson, rt. hon. T. M.||O'Connor, F.|
|Goold, W.||O'Ferrall, rt. hon. R. M.|
|Grace, O. D. J.||O'Flaherty, A.|
|Grattan, H.||Power, Dr.|
|Greene, J.||Power, N.|
|Herbert, H. A.||Reynolds, J.|
|Heywood, J.||Sadleir, J.|
|Higgins, G. G. O.||Somers, J. P.|
|Horsman, E.||Sullivan, M.|
|Keating, R.||Talbot, J. H.|
|Lawless, hon. C.|
|M'Cullagh, W. T.||TELLERS.|
|Magan, W. H.||Roche, E. B.|
|Maher, N. V.||Keogh, W.|
|List of the NOES.|
|Acland, Sir T. D.||Hatchell, rt. hon. J.|
|Arbuthnott, hon. H.||Hawes, B.|
|Baillie, H. J.||Heald, J.|
|Baring, rt. hon. Sir F.T.||Hodgson, W. N.|
|Barrow, W. H.||Hollond, R.|
|Bethell, R.||Hotham, Lord|
|Blair, S.||Humphery, Ald.|
|Brisco, M.||Inglis, Sir R. H.|
|Brotherton, J.||Jones, Capt.|
|Brown, W.||Kershaw, J.|
|Buck, L. W.||Lacy, H. C.|
|Chichester, Lord J. L.||Lennard, T. B.|
|Clay, J.||Lewis, rt. hon. Sir T. F.|
|Clay, Sir W.||Lockhart, A. E.|
|Clive, hon. R. H.||Lockhart, W.|
|Cobbold, J. C.||Lopes, Sir R.|
|Cockburn, Sir A. J. E,||Macnaghten, Sir E.|
|Corry, rt. hon. H. L.||Maule, rt. hon. F.|
|Cowper, hon. W. F.||Muntz, G. F.|
|Craig, Sir W. G.||Napier, J.|
|Damer, hon. Col.||Newdegate, C. N.|
|Denison, E.||Newport, Visct.|
|D'Eyncourt, rt. hon. C. T.||Nicholl, rt. hon. J.|
|Duncuft, J.||Palmerston, Visct.|
|Dundas, Adm.||Parker, J.|
|Dundas, rt. hon. Sir D.||Plowden, W. H. C.|
|Elliott, hon. J. E.||Rich, H.|
|Ferguson, Sir R. A.||Richards, R.|
|Fitzroy, hon. H.||Russell, Lord J.|
|Forster, M.||Somerville, rt. hon. Sir W.|
|Freestun, Col.||Spooner, R.|
|Greenall, G.||Stanton, W. H.|
|Greene, T.||Thicknesse, R. A.|
|Grey, rt. hon. Sir G.||Thompson, Col.|
|Guest, Sir J.||Thornely, T.|
|Hamilton, G. A.||Wakley, T.|
|Harris, R.||Walpole, S. H.|
|Wawn, J. T.||Wilson, J.|
|Whiteside, J.||Wood, rt. hon. Sir C.|
|Williams, J.||Wood, Sir W. P.|
|Williamson, Sir. H||Hayter, W. G.|
|Willoughby, Sir H.||Hill, Lord, M.|
§ MR. KEOGH
said, he now proposed to add a proviso to the clause. As the noble Lord at the head of the Government seemed desirous that the Roman Catholics should enjoy their religious liberties as in times past, he hoped the noble Lord would not divide against the proposed proviso, and he could assure the noble Lord that among those religious liberties he did not include the liberty of taking possession of Westminster Abbey.
To add, at the end of the Clause, the following proviso:—'Provided, that nothing in this Clause contained shall be construed to interfere with the ecclesiastical or spiritual functions of the Roman Catholic Archbishops and Bishops in the United Kingdom.'
The ATTORNEY GENERAL
said, that the obvious objection to the proviso of the hon. and learned Gentleman was this, that the clause in question did not affect the exercise of the functions of Roman Catholic archbishops and bishops in Ireland, unless their jurisdiction and authority should be exercised in a way incidental to titles illegally assumed. If they did exercise their jurisdiction in a manner which the clause declared to be illegal, it would be manifestly inconsistent to say that they might lawfully exercise a jurisdiction in a way which the clause declared to be unlawful.
§ MR. KEOGH
said, this Amendment was intended to test the sincerity of the noble Lord (Lord John Russell), as it was only by Amendments of this kind that the real truth could be arrived at. The sophism of the objection taken by the hon. and learned Gentleman the Attorney General, was too shallow almost to require any explanation. He must know that there could be no such thing as a Roman Catholic archbishop or bishop, without a Brief, a Rescript, or a Letter Apostolical. He did not know whether the Bill was to apply to this particular Brief, to a few Briefs, or to all Briefs; but he wished to make this provision, that the Roman Catholics of Ireland should not be interfered with. The noble Lord said he did not wish to interfere with that country. Then, if he was sincere, let him insert a clause in the Bill, in his own select and perfect language, 1433 to that effect. Let him instruct his law officers to insert a clause to the following effect:— "That nothing in this Bill contained shall he construed to affect the spiritual liberties of the Roman Catholic people of Ireland." He (Mr. Keogh), for one, would support such a clause. The noble Lord had alluded to their seeking probably to have mass said in Westminster Abbey; but he (Mr. Keogh) could remind the noble Lord of a time when he was more awake to the distinction between the religious liberty of Ireland and of England, of a time when lie said that nothing would give satisfaction to the people of Ireland—nothing would produce peace to that country—unless a marked distinction was to take place between the Establishment in Ireland and the Establishment in this country. He might remind the noble Lord of a time when he fought for the assertion of that principle, when it was indispensable to overturn the Government, and to change the Administration. Did the noble Lord see nothing in those ancient recollections of his party and his supporters? When they talked of their religious liberty, and their representing 6,000,000 of the people of Ireland, he said they had every liberty except that of taking possession of Westminster Abbey. He did not see why the noble Lord should be so anxious about the Episcopalian Church of Scotland. He did not suppose it numbered 200,000, and yet there was a special clause in the Bill for exempting their bishops from its operation—that nothing in the Act contained should extend to the assumption of titles by that Church; which assumption he (Mr. Keogh) considered would be as illegal as that by a Roman Catholic. The noble Lord, frightened perhaps at the number of pamphlets written on the subject, introduced a clause to prevent any uneasiness being felt by some 100,000 persons; but he refused to give the slightest intimation of his intention to introduce any clause to protect the religious liberties of the millions of Roman Catholics in this country and in the sister kingdom. If the noble Lord refused to affirm the proposition now submitted, the Roman Catholics must form their own opinion of his sincerity from his conduct. If the noble Lord rejected the proposition before the Committee, he (Mr. Keogh) assured him that in every form in which they could construct the language, they would not fail to continue to suggest it.
MR. A. B. HOPE
having frequently, 1434 with great pleasure, supported the small minority which had so consistently fought against the Bill, felt it his duty now to state why he could not do so on the present occasion. Englishman as he was, and contending as an Englishman, or as a citizen of the kingdom, for religious liberty to all denominations, he could not but think the ground which had been taken by the hon. and learned Member for Athlone (Mr. Keogh) too circumscribed, and, indeed, antagonistic to the free principles of religious liberty. No doubt the Bill was a greater grievance to the Roman Catholics than to persons of any other denomination, because they were the largest body of men aggrieved by it. As a political evil it would press greatly upon them, and they most naturally felt hurt and aggrieved at it. Not being an Irishman himself (although nearly connected with that country, and having a great interest in it), and looking at the matter calmly and dispassionately, he must say that the ground they assumed of its being a grievance to 6,000,000 of the people, was destructive of religious liberty. The religious liberty of 60,000 persons was as dear to them as the religious liberty of 6,000,000. He was glad to see the clause respecting the Scotch Episcopalians, they being members of the same communion as himself. But he was sorry to see the line taken by the Scotch clergy. They condemned the Irish clergy, but said, "Exempt us." The Irish Roman Catholics, in the person of the hon. and learned Member for Athlone, said, "See what you have done for the Scotch Episcopalians, while you leave us, who are so much more numerous, under the penalties of the Act." It seemed to him that both the Scotch Episcopalian and the Roman Catholic erred in the same way. Each was contending for its own, instead of standing up to fight the great and broad battle of religious liberty—liberty to the Irish Roman Catholic, liberty to the English Roman Catholic, liberty to the Scotch Presbyterian, liberty to the Presbyterians of Ireland, liberty to any sect of men who believe there is a God in heaven whom they are bound to serve according to the dictates of their consciences. On this ground it was that he had voted with the Roman Catholic Members, and he would vote with any other Members for the supremacy of religion over Government. But this Amendment had been put on a very different ground from that of religious liberty, and therefore he could not support it.
§ MR. C. ANSTEY
was surprised that such an Amendment should encounter any opposition. He certainly thought it unnecessary; but as it had been proposed, he should give it his support. If the preamble of the Bill should not be greatly altered, the clause, with or without the Amendment, could not apply to Ireland. He trusted the noble Lord (Lord John Russell) would assent to the introduction of a general clause exempting Ireland altogether, and thereby allay the storm of indignation which had been raised in that country against his legislation. He (Mr. C. Anstey) regretted that the agitation of Irish Members had not been directed solely to the exclusion of Ireland from the Bill. The other night, after he (Mr. C. Anstey) had left the House, the hon. Member for Carlow (Mr. Sadleir) had lectured him upon his temerity, in constantly asserting that the establishment of this hierarchy was contradictory to the wishes of the English Roman Catholic laity and inferior clergy, and quoted a declaration signed by the Earl of Shrewsbury and others. The hon. Member laid great stress, he believed, upon the authority of the Earl of Shrews-bury; and he (Mr. C. Anstey) would recommend to the hon. Member (Mr. Sadleir) the evidence said to be given by the Earl of Shrewsbury, in which it was asserted that this Brief might be attributed to a certain party in the Papal councils. He (Mr. C. Anstey) did not, however, put much faith in such declarations as that referred to by the hon. Member, because he found that the English Roman Catholics ' had set their names to more than one declaration on more than one occasion, and the sentiments expressed in those declarations had been uniformly contradictory and inconsistent with each other. Therefore, to the declaration alluded to, he attached not the slightest weight. He would draw the attention of the hon. Member to a much more important declaration, every paragraph of which had been formally contradicted by all the subscribers but one. He referred to the memorial of the clergy of Beverley to Cardinal Wiseman, in which they not only protested against the Rescript, but implored his Eminence to use whatever influence he might possess to establish such laws and institutions for their ecclesiastical government as might be in 1436 accordance with the free constitution and equitable laws of the country; and they asked that the canon law under this new delegation might consist—first, of civil law; secondly, canon law in spirituals only for the Roman Catholic Church; thirdly, common law; fourthly, a selection from the statute laws of England. They deprecated all spiritual interference with the civil rights of individuals in reference to property, knowing the fatal consequences arising from such interference; they deprecated any more foreign system of ecclesiastical legislation as obnoxious to their feelings, and hateful to the millions around them; and they implored the Cardinal to oppose the establishment of any spiritual court which might be liable to the imputation of such undue influence, such courts being in England held in utter abhorrence. They said that the contemplated restoration of the Roman Catholic hierarchy, unless these points were attended to, would, instead of conducing to the advancement, cause the deep deterioration of the Roman Catholic religion in England. That memorial was agreed to at a district meeting, the dean presiding, and was presented to Cardinal Wiseman. What followed? Every one of the subscribers two or three days afterwards received a circular from the Vicar-General at York, in the following words: — "Reverend Sir—You will peruse the enclosed draft addressed to Cardinal Wiseman, and if you approve it, you will return it to me, signed, by return of post." Only two of the previous memorialists had the hardihood to refuse to sign the address. And what was it? A direct retractation of every sentiment contained in the memorial — an expression of thanks for the services of Cardinal Wiseman, and of their appreciation of the great value of a hierarchy which they had so strongly denounced. One of the two clergymen who refused to stultify himself by signing this address had been not suspended, but replaced in his incumbency. He was sorry to detain the Committee by observations about these declarations; but when he was taunted by hon. Gentlemen with these declarations, then he was justified in stating the manner in which they were brought about. The hon. and learned Member for Tipperary (Mr. Scully) asked him the other night what authority he had for his statement about those documents, and he answered him that one authority was the hon. and learned Gentleman's own knowledge. He had then an 1437 impression that the hon. and learned Gentleman had signed one of the documents in question. In 1837 the late Pope put forth a document, in which, instead of constituting a hierarchy and conferring titles, as the present Pope had done, he referred to the clergy themselves the duty of settling a form of government for themselves, premising beforehand that he would ratify their decision; and this document was postponed by the sacred college, because they wished to be informed whether it would be objected to by the English Government; and, secondly, whether it would be sub lege dicta prœmunire, the election of the prelates to be left to the priests themselves? The clergy accepted this document with cheerful alacrity; but it was not enacted at Rome, because the bishops, represented by their then agent at Rome, Dr. Wiseman, objected to it as diminishing too much the authority of the bishops. Then the Roman Catholics of this country presented a petition to Rome, offering to support the Pope against the bishops, and the hon. and learned Gentleman the Member for Tipperary signed that petition.
The EARL of ARUNDEL AND SURREY
I wish to ask the hon. and learned Member for Youghal, does he address the House as Catholic or not? ["Order, order!"]
§ MR. C. ANSTEY
If the noble Lord was in order in putting the question, I am in order in answering it. I should be sorry to retaliate upon the noble Lord, or to commit the unpardonable insolence of putting such a question to any Gentleman as the noble Lord has put to me. But, as the noble Lord expects an answer, I beg to tell him that I am to the full as good a Catholic as he.
The EARL of ARUNDEL AND SURREY
said, that was all he wanted. He thought it a fair question to put when an hon. Member got up among Catholic Members and expressed sentiments contrary to Catholic feelings. If the hon. and learned Member were a Catholic, and he did not now mean to doubt it, he must know how a Catholic could change his mind. He remembered a speech in which the hon. and learned Member for Youghal arraigned for five hours the administration of foreign affairs by the noble Lord (Viscount Palmer-ston); and yet last Session the hon. and learned Member voted for the Motion of the hon. and learned Member for Sheffield (Mr. Roebuck), approving the policy of that noble Lord. He knew nothing of the 1438 paper read by the hon. and learned Member as having been agreed to by the clergy of Beverley; but he presumed that on further consideration those rev. gentlemen had thought better of the matter. But however that might be, there were among English Catholics, as among every other body, always one or two of those discontented persons who opposed the discipline which the head of the Church, in his wisdom, thought it right to impose.
§ MR. NAPIER
said, that the hon. and learned Gentleman (Mr. C. Anstey) was about to vote for the Amendment on the ground that the Act of 1791 produced in Ireland a state of the law different to that in England. He (Mr. Napier) could give a complete contradiction to that idea. There was no difference whatever in the law with regard to this question. He complained of the attempts made to mislead the people of Ireland with respect to the Bill before the House, which was simply a defensive one, not levied against the Roman Catholic religion at all but against Ultramontanism. The appointment of Dr. Cullen was the first instance on record of the Pope carrying the ultramontane principle so far, and of doing an act at variance with the laws and constitution of the realm. The Bill had nothing to do with the discipline of the Church of Rome: it was levied only against overtacts. The Bill was, no doubt, a declaratory one, and its object was simply to say, whether or not the Rescript of the Pope was consistent with the laws and constitution of the land. It was no question of theology at all, but a great constitutional question; and the clause, as it was amended by the hon. and learned Member for Midhurst (Mr. Walpole), stated that, being contrary to the law and constitution of the country, the Rescript was unlawful and void. He (Mr. Napier) believed that it was unlawful; and if that were so, how could it be unlawful in England, and not unlawful in Ireland? It was making a lawful Irish Bull out of an unlawful English Bull. This being the object of the Bill, if any unpleasant consequences should arise to any body, who was to blame? There had been of late a softening of the asperities of controversy with respect to Rome; but if that was now obliterated, and agitation had again lighted up the country, who was to blame? They were asked to say in this clause whether or not the Rescript was a lawful or an unlawful document. In his opinion it was unlawful; but he was asked 1439 by the Amendment to say also, that although it might be true that it was unlawful in England, it should at the same time be lawful in Ireland. That was a conclusion utterly at variance with reason and common sense, and he believed the Committee would not adopt it.
§ MR. C. ANSTEY
said, the difference between the operation of a Bill of this kind in Ireland and England was this, that a Bull relating to the hierarchy in Ireland was legal, although it might not be legal in England, because under the Roman Catholic Relief Act a hierarchy was tolerated in Ireland.
§ MR. MILNER GIBSON
admitted there would certainly have been a stronger case had the proposal of the hon. and learned Member for Athlone (Mr. Keogh) remained a proviso applying only to Ireland instead of to the whole of the United Kingdom; though he (Mr. Gibson) preferred taking it generally. When, however, they considered the monstrous injustice of forcing on the people of Ireland a Church which was of no use to them, and then saying by an Act of Parliament that they should not maintain a Church of their own, but that they should be subjected to every species of insult and oppression, he must say it made one anxious to include Ireland most especially in the proviso. They forced a great bench of bishops of the Established Church upon a Roman Catholic people, and then they brought in a Bill to say that that Roman Catholic people should not maintain their own bishops by their own contributions as a non-established community, and should not give them those titles which they believed would tend to make them most respected and useful, and so would raise the Roman Catholic Church in that country. There was something so palpably unjust in the whole proceeding, something that so violated the very principles of justice, that he could hardly condescend to enter into the details of this clause. But what was this clause? It said, if he understood the hon. and learned Solicitor General rightly, that the Rescript or Bull of the Pope was unlawful and void, because that was notoriously contrary to law; but if that was so notoriously the law, why it should be necessary to declare the law by an Act of Parliament did not appear to him to be quite so obvious, unless, indeed, it was some old and obsolete law which was attempted to be revived. The noble Lord (Lord John Russell) had talked in his 1440 speech about the assumption of titles; but there was not a word about that in this clause, which declared only that acts done under the authority of bulls were illegal and void. He (Mr. Gibson) wished therefore to know whether the ordination of priests by a Roman Catholic bishop, who, whatever he might be called, was himself a Roman Catholic bishop by virtue of a bull from Rome, was valid or not? If not, then he wanted to ask the hon. and learned Solicitor General (as he was a man that understood Church matters) if the Established Church of this country was to go on recognising as valid ordinations by bishops who were bishops in virtue of a void and illegal instrument from Rome? That, it appeared to him (Mr. Gibson), was a point upon which they required further explanation. The noble Lord (Lord John Russell), in his opening speech, stated clearly that there were bulls necessary for carrying on the local arrangements of the Roman Catholics. The noble Lord mentioned certain bulls respecting marriages and some other matters, which would all come under some bull; he said he would not prosecute under the ancient statute for this purpose, and quoted a passage from Jeremy Taylor:—As long as the law is obligatory, so long our obedience is due, and he that begins a contrary custom, without reason, sins; but he that breaks the law when the custom is entered and fixed is excused, because it is supposed the legislative power consents, whereby not punishing, it suffers disobedience to grow to custom.Now, he maintained that they had given the Roman Catholics leave, by disusing it, to break this old law. Were they now going to give fresh life and vigour to the old law? would they do so without providing what they professed ought to be provided against, namely, proceedings by common informers against Roman Catholic bishops? If they passed this clause as it now stood, it appeared to him that they ought, by way of precaution, to link with it a provision that no indictment should take place without the consent of the Attorney General. If he understood the matter rightly, in this clause they declared by statute that certain things were illegal and void, and thereby they constituted those acts misdemeanours; and thus it would be competent for any person to take proceedings, or to prosecute, with a view to fine and imprisonment, any person guilty of these acts. He considered, therefore, considering what had taken place, that there was much dan- 1441 ger of prosecutions by common informers, because there was no denying the fact that one great party had been actuated in giving their support to the measure by a wish to interfere with the Roman Catholic religion. He hoped the hon. and learned Solicitor General, if he would condescend to reply to an unlearned Member, would give him an answer. He did not want that shabby answer, namely, that the clause left the law as it stood before. He did not want to know what was the law; and he felt sure that what he had advanced, whatever lawyers might think of it, was not contrary to common sense. The present movement was dictated by the old "No-Popery" cry, and by a wish only to persecute the Roman Catholic religion.
§ SIR H. W. BARRON
thought that nothing could be more preposterous than to attempt to justify the present Bill, on the plea that it would not alter the statute law with respect to the assumption of ecclesiastical titles by Catholic prelates. The statute law in that behalf had been systematically violated, not only with the privity, but with the consent, of a succession of Governments from the days of Pitt to the present time; and although the statute still remained unrepealed by any subsequent Act of Parliament, that systematic and public violation of its provisions was tantamount to a virtual abrogation of the law. And so universally was it so regarded by society, that no Government would dare to ask any judge or any jury, who had the least respect for their characters, to convict any Catholic ecclesiastic under an Act of Parliament which had fallen so hopelessly into desuetude and contempt. The old law might still be found in the Statute-book; but to all practical intents and purposes it was as completely defunct as if it had been formally repealed. Disguise it as they might, the present Bill was not the revival of an old law, but rather the enactment of a new one; and the Government might take his word for it that it was in this light that it would be regarded throughout the whole length and breadth of the land, not only by its opponents, but even by its most enthusiastic advocates. It had been introduced under a false pretence—and the Government in proposing it were playing a double game; but they might depend upon it that the public out of doors would understand their purpose, and correctly appreciate their motives. The Bill had been brought in to divide the opponents of the Government, and to create 1442 discord amongst men who on general questions would (were it not for this Bill) have offered a united, and probably a too effective, antagonism to the Government. At the bottom of all these proceedings might be discovered the desire of the Government to weaken their adversaries by shattering them into minute sections. The meaning of the noble Lord at the head of the Government in writing his notorious Durham letter was to prevent the loss of office to himself and his Colleagues. It was thus he reasoned with himself:—"Our power is crumbling away from us—the day of our dissolution is approaching; our only chance of keeping our ground and retaining our office is to throw the elements of discord into the enemy's camp, and thus deprive of the power of mischief those adversaries whose united hostility might otherwise be fatal to us." Now, he put it to the Committee—he put it to the sensible and enlightened people of England—whether they would lend themselves to a device so paltry, so contemptible. Was the odious spirit of theological rancour to be evoked—was class to be set against class —was bigotry to be cherished and intolerance to be promoted throughout the land —was the progress of improvement to be stayed, and the course of salutary legislation to be impeded for no worthier object than this, that the noble Lord and his Colleagues might be enabled to retain their seats on the Treasury bench? It was quite absurd to say that the late proceedings of the Pope were an usurpation of the Queen's prerogative, for the Sovereigns of England had never—certainly not since the Revolution—exercised the appointment of Roman Catholic archbishops or bishops. All that the Pope had done had been to regulate the spiritual superintendence of the Roman Catholics in this country; he had not attempted to usurp for the Roman Catholic prelates either territorial jurisdiction, or money payments, or glebe lands, or churches, or seats in the House of Lords; not a single Protestant right or possession of any sort or kind had been invaded. All that the Roman Catholic subjects of Her Majesty required was to exercise their religion, under their spiritual heads, freely, as free-born men in a free land. What would the Protestant subjects of Her Majesty say were the Roman Catholics to declare that there should be no Protestant bishops? If the majority in Parliament wanted to abrogate the Roman Catholic religion, let them put forward that inten- 1443 tion openly and broadly, and not seek to effect it in this underhand manner, degrading alike to all parties. It was a mockery —it was an intolerable indignity to common sense, to say that any man in this country had suffered either in purse or person by the Papal Rescript. No man had lost a farthing from his revenue, or a feather from his dignity, or one iota from his independence, by that Rescript; and the day would come when this truth would be perceived and acknowledged by every man of common candour and common intelligence in the empire. His great objection to this measure, he would again repeat, was, that it had been brought forward with duplicity and in a deceptive spirit, and that the true purpose which the Government had in view was cloaked under an insincere pretext. Let men honestly avow what their real object was, and let them not adopt a course so unworthy of the character of the British Senate as to attempt to carry their purpose by a shabby side-wind. He said, the recent steps taken by the Pope of Rome with regard to the Roman Catholic Church in England had met with the sanction of the great majority of the Roman Catholics of this country, because they had placed the Church in this country on the same footing on which she stood in most of the countries of Europe and America. He denied it was any aggression or insult; but when they talked of insult, he begged them to remember the Diplomatic Relations Bill, which, by refusing to an ecclesiastical Power the right of being represented in this country by an ecclesiastic, amounted to a gross insult to that Power.
§ CAPTAIN TAYLOR
said, that not having had the opportunity of addressing the House upon the second reading of the Bill, he was desirous of stating that he was anxious that the House should record its strong disapprobation of what had been termed the Papal aggression, and repel it in the most vigorous manner. But he must say he did not think the Bill did that. At the close of last autumn, he, in common with many others, was misled by the letter of the noble Lord (Lord John Russell) to the Bishop of Durham, into the belief that immediately upon the meeting of Parliament some measure would he proposed in accordance with that letter; but he confessed that he was grievously disappointed when he read the details of the Ecclesiastical Titles Assumption Bill, and saw how meagre, weak, and ineffective its clauses 1444 were. He would vote for the Bill, because it went in the right direction; but he thought the course proposed by certain individuals would have been preferable, namely, that they should have passed a Resolution of the House, declatory of their opinion, and then proceeded by a Committee to inquire into the state of our relations with Rome, and how the present evils might best be remedied. He was the more inclined to that course after seeing how much opinions varied, and how widely oven the law officers of the Crown differed as to the state of the law.
§ MR. REYNOLDS
had hoped, from the tone of an article in that morning's impression of that widely-circulated journal, the Times, which he looked upon in the light of a semi-official organ of the Government, that they were about, if not to abandon, at all events to postpone the consideration of this clause, in order that doctors might have time to arrange their differences; but the noble Lord had that evening announced his intention to proceed with the clause. He (Mr. Reynolds) was not disposed to make use of any severe language against the majority who persisted in supporting the Government, because he knew they were driven to the course they were adopting, and that they were talking and voting, not in accordance with their own views, but in deference to the prejudices of their constituents, and under the apprehension of losing their seats if they did not please those who sent them there. The hon. Baronet the Defender of the Faith for the borough of Marylebone (Sir B. Hall) had suggested, having possibly had a whisper from the Treasury bench, that there should he morning sittings, with the view of disposing of this Bill; and he said that at present all the important business of the country was in a state of abeyance. That was a bold, if not an audacious proposition; and he (Mr. Reynolds) would ask, what important business had the Government to bring forward? Had they proposed any measure for the extension of the Parliamentary franchise in England and Scotland? No, they had postponed the subject until next year, when they hoped that it would serve as a makeweight in their appeal to the country. Had they proposed to relieve the people of this country from the intolerable pressure of indirect taxation? [Mr. WAWN, who was seated behind the hon. Member: Question, question!] He should be much obliged to the hon. Member for South Shields if he would sit upon his own side 1445 of the House, and then, if he interrupted him, he could ask the Chairman to call the hon. Member to order. They had no notice upon the paper of any intention to relieve the professional man from the burden of the income tax. He should be glad to know, then, what measure of national importance Her Majesty's Ministers had upon the notice paper, for he said there was not one? [Mr. WAWN: Question, question!] He did hope that the hon. Member for South Shields would conduct himself with sober propriety in that House. Why was the proposal for morning sittings made? Because on Saturday night they were occupied in discussing two Motions. [Laughter.] He meant on Friday night.
§ MR. REYNOLDS
resumed. It had often been said that a child might ask a question that might puzzle a philosopher to answer. He dared to say it would be almost impossible to ask the Chairman a question that would puzzle him more than —What were hon. Members doing on Saturday night? He was referring, when he was interrupted, to the Motion of the hon. Member for Finsbury (Mr. T. Duncombe), and that of the hon. and learned Member for Abingdon (Sir Frederic Thesiger); and he thought it was a most unreasonable thing to censure the Irish Members for taking up the time of the Committee which they did not occupy. This was a life or death question to them. There was involved in it this most important ingredient—Were they to have—he would not say happy homes—for by their ill-directed legislation they had put an end to happy homes in Ireland—but free altars? The noble Lord at the head of the Government had said this Bill would not do the Irish people the least mischief. If the noble Lord was serious, how was he to satisfy the defenders of the faith on that (Mr. Reynolds') side of the House? If the noble Lord meant only to re-enact the 24th section of the Act of 1829, he was 1446 passing bad coin on the Protestant ascendancy Members of that House. He (Mr. Reynolds) wanted to ask the noble Lord this question—but the noble Lord was probably tired of answering questions, and he (Mr. Reynolds) imagined lie looked upon the Irish Members as living notes of interrogation—did the noble Lord intend that this Bill in all its integrity should extend to Ireland? The hon. and learned Solicitor General said in terms it did not extend to Ireland; but the construction of the clause by an Irish Judge would extend it to Ireland, and there was no necessity to extend it to Ireland by that declaratory resolution. He had stated before in that House, and he would repeat it, that if they passed that Bill, no matter whether in its present shape or in any other shape, imposing pains and penalties on the Roman Catholic hierarchy and people of Roman Catholic Ireland, it would be a dead letter. They would not have the power of carrying it into effect. Now, he would refer to some acts of the noble Lord's political life, and ask him how he reconciled his present insulting, bigoted, and atrocious legislation with his former acts as regarded Ireland? He (Mr. Reynolds) held in his hand a speech made by the noble Lord in that House in 1835, on the debate on the Appropriation Clause. Was the noble Lord now the same Lord John Russell that he was in that day? If he was, he had undergone an extraordinary metamorphosis. The noble Lord made a most eloquent speech on that occasion, and he always spoke eloquently, except on Papal aggression. The truth was, that that was uphill work with the noble Lord, and he was scarcely able to get through it, and certainly his Colleagues had not assisted him much. The noble Lord, according to Hansard, asked triumphantly on that occasion if the House was prepared to appropriate 791,721l. per annum, in the shape of tithes and other ecclesiastical dues, to the support of 750,000 Protestants? And he added, that from the best computation he had seen, and he believed it was not exaggerated one way or the other, the entire number of Protestants belonging to the Established Church in Ireland, could hardly be stated as higher than 750,000, and of those 400,000 were resident in the ecclesiastical province of Armagh. The noble Lord went on to state that, in the dioceses of Ardfert, Down, Dromore, Kildare, Kilfenora, Kil-laloe, Leighlin, Lismore, Meath, at 1447 Waterford, the number of Protestants amounted to 166,492; the Catholics to 1,732,452; the Presbyterians to 162,184; and other Protestant Dissenters to 6,430. According to the noble Lord, in Ardfort the Protestants only formed one forty-first part of the population; in Down, one-eighth; in Lismore, one twenty-seventh; in Waterford, one-ninth; in Kil-laloe, one-nineteenth; and in Dromore, one-fourth. The noble Lord ended with a Motion that the House resolve itself into a Committee of the whole House, to consider the temporalities of the Church of Ireland. Now, thereby hung a tale. The noble Lord carried that clause, the Ministry were dislodged, their Appropriation Clause was in "the tomb of all the Capulets," the Protestant Church of Ireland remained in all its temporal integrity, the noble Lord was now the Prime Minister of this country; and he never, from the period that he resumed his seat on the Treasury bench until this hour, even whispered a word about the Irish Protestant Church, except to strengthen its temporalities. And what did he now? He came forward with a Bill called the Ecclesiastical Titles Assumption Bill, under which a Catholic archbishop or bishop might be sent to a felon's gaol. That was the noble Lord's Appropriation Clause. Why, it was enough to make the blood boil in the veins of an Irish Roman Catholic. He (Mr. Reynolds) appealed to the English Members of Parliament, whether Protestants or Dissenters, how they would like to be treated as the Roman Catholics in Ireland had been treated? But he would remind the Committee that there was a famine abroad in Ireland. His countrymen and countrywomen were dying at the rate of 2,000 a week, for want of the common necessaries of life; and the remedy applied to all those grievances was this insulting-atrocious Bill. Why was the Protestant Church established in England? Because the majority of the people were Protestants. The Presbyterian Church was established in Scotland for the same reason. But the Established Church of Ireland was established there for a reason diametrically opposite. Now, the people of Ireland were told that they must submit to this act of penal legislation; and if they complained they would get something which he (Mr. Reynolds) would not name, they would get some English Member of Parliament, remark- 1448 able for his bump of self-esteem to such an extent as to neutralise all his other qualities, who would say to the Irish Members, if he had any more of their talk, they should have morning sittings. But the Irish Members could sit by day and talk too; and let that system be commenced, and he would be glad to know who would be tired first. Although the Irish Members were few in number, they were not disheartened; they were banded together, for an honest purpose. He had thought of referring to the hon. and learned Member for Youghal (Mr. Anstey), but hesitated to do so lest it would be doing that hon. and learned Gentleman any good.
§ MR. LAWLESS
rose to order, and said, that though it was true the party endeavouring to conduct the opposition to this Bill was numerically small, he must appeal to hon. Gentlemen whether it was fair to interrupt the hon. Member for the city of. Dublin. He considered that the hon. Member for South Shields had repeatedly interrupted that hon. Gentleman in a way that was disorderly.
§ MR. WAWN
said, he had not interrupted the hon. Member for the city of Dublin at any time when he was speaking to the question. If the hon. Member would confine himself to the subject before the Committee, he (Mr. Wawn) would no longer call "Question!" but so long as the hon. Member wandered away from the subject before the Committee into a variety of irrelevant topics, he (Mr. Wawn) would avail himself of his privilege, and call the hon. Member to order.
§ MR. REYNOLDS
said, it was rather too bad that; when endeavouring to plead the cause of his creed and country, he was to receive those interruptions; the only excuse he could make for the hon. Member (Mr. Wawn) was, that he was not perfectly conscious of what he was doing. [Loud cries of "Order!"]
§ MR. REYNOLDS
resumed: He was referring to the hon. and learned Member for Youghal (Mr. Anstey), and he charged that hon. and learned Gentleman with bearing false witness against his (Mr. Reynolds') creed. He should not allow him or any other hon. Member to do that with perfect impunity. But the hon. and 1449 learned Member was cheered. No one ever interrupted him when he was calumniating his creed. The hon. and learned Member reminded him (Mr. Reynolds), on that and many other occasions on which he had addressed the House on this question, of a passage in the poetry of Moore, who, in speaking of the representatives of Ireland, not always her sons, said—Unprised are her sons till they learn to betray;Undistinguished they live if they shame not their sires;And the torch that should light them through dignity's wayMust be caught from the pile where their country expires.He believed the hon. and learned Member for Youghal (Mr. Anstey) was not an Irishman—he thanked God for it. [An Hon. MEMBER: He is not an Englishman either.] He was reminded too that he was not an Englishman. He (Mr. Reynolds) would call him the disowned. But he deeply regretted the hon. and learned Gentleman was an Irish representative, and the representative of a Catholic community; and the gratitude he exhibited towards his constituents was to strike a blow against their religious liberty, and to slander and calumniate them in the Senate of the nation. This Bill had been four months before the House, and yet they had not passed one clause of five lines. The men who proposed it knew that the clause would not work. They knew their declarations and that clause were incompatible. He trusted they should hear no more of morning sittings. The Irish Members were not desirous of unnecessarily wasting the time of the Committee, but they were there to guard their country and the Roman Catholics of the United Kingdom against this infliction.
The MARQUESS of GRANBY
said, it was not his intention to follow the hon. Member for the city of Dublin through his very discursive speech; but he was anxious that the country should know what was true, and what was false. Nothing could be further from his wish than in any way to interfere in the slightest degree with the religion of the Roman Catholics, or of any other sect in the country; but he thought that in the Brief which the Pope issued in September last the Committee might learn what were the intentions of the Pope and the Propaganda of Rome. It had been said there was no intention on the part of the Pope to encroach on the Church of England. Now, the Brief of 1450 the Pope itself would show what was his intention in issuing it, and he begged to call their particular attention to the following passage from that document:—And we decree that these, our Letters Apostolical, shall never at any time be objected against or impugned, on pretence either of omission or of addition, or defect either of our intention, or any other whatsoever; but shall always be valid and in force, and shall take effect in all particulars, and be inviolably observed; all general or special enactments notwithstanding, whether apostlic or issued in synodal, provincial, and universal councils; notwithstanding, also, all rights and privileges of the ancient sees of England, and of the missions, and of the apostolic vicariates subsequently there established, and of all Churches whatsoever, and pious places, whether established by oath or by apostolic confirmation, or by any other security whatsoever.He asked the hon. Member for the city of Dublin, if the intention of these words was not to set aside the Church of England, what they meant? The Brief then proceeded:—For all these things, in as far as they contravene the foregoing enactments, although a special mention of them may be necessary for their repeal, or some other form, however particular, necessary to be observed, we expressly annul and repeal. Moreover, we decree that if, in any other manner, any other attempt shall be made by any person, or by any authority, knowingly or ignorantly, to set aside these enactments, such attempt shall be null and void.He asked every Roman Catholic in that House if those words did not allude to the Established Church?
§ MR. MOORE
said, before the Committee went to a division, he wished to call the attention of the hon. and learned Member for Youghal (Mr. Anstey) to a passage in a book purported to have been written by him, and dedicated to "C. Meyler, by Divine Providence Bishop of Pella, and Vicar Apostolic of the Western District of England." The hon. and learned Member's speech of that evening consisted of a gross and violent attack on what he conceived to be the ultramontane spirit of English and Irish Catholics in the present day, and of that party which was supposed now to preside over the councils of the Church of Rome. Now, in a series of lectures—the hon. and learned Gentleman's speeches were generally lectures—formerly delivered by the hon. and learned Member, and afterwards dedicated to the Vicar Apostolic of the Western District of England, there was the following passage:—The ridiculous endeavour lately made by a small Parliamentary faction, not without countenance and support from some of the less instructed amongst their Catholic opponents, to revive the 1451 stupid and unmeaning clamour of other days against sincere, or, as they term them, ultramontane Catholics, by your Lordship and your brethren in the episcopate, will be estimated at their proper value. I am happy to think that this notion, so far from being shared in, or connived at, is altogether denied and condemned by the highest ecclesiastical authority within the ancient kingdom of Wessex.
§ MR. C. ANSTEY
, in explanation, said, that the hon. Gentleman had drawn his attention to a passage in the preface to a book he was pecuniarily unfortunate in having published some years ago, and which so far from being in contradiction to anything he had said in that House, or any vote he had given, contained, by implication, at least, the very enunciation of the grounds on which he opposed the attempt which had been made to set up a little popedom in this country. He had never used the word ultramontane in the debate; if he had done so in the sense referred to by the hon. Member (Mr. Moore), be should have avowed himself of ultramontane opinions. He looked upon the system now sought to be introduced as the vilest and most contemptible offshoot of Gallicanism that could be conceived. The Church of Rome was a Papal and not an episcopal Church, and all the recent interferences with the rights of the clergy and the laity had originated, not from the Pope, but from those about him, who desired to set up a bastardised episcopacy in this country. If this Bill did not pass, there would be no protection for Catholic bequests for charitable purposes, and the Catholic clergy and laity of this country would be exposed to the absolute control of Cardinal Wiseman, from whose tyranny they had already suffered so much and so grievously.
§ MR. MOORE
thought public opinion was beginning to understand that that House was not deliberating. They were a body of candidates on the hustings, voting not for the clause but for their own elections. How many of them knew what they were going to vote about at present? Not one-third—["Oh, oh!"]—and, what was more, they did not cave. ["Divide, divide!"] As the Committee would not hear him, he should move that the Chairman report progress.
§ LORD JOHN RUSSELL
must say he thought the Committee had listened with very remarkable attention, though, if the discussion had been confined to the merits of the Amendment proposed by the hon. and learned Gentleman (Mr. Koogh), or even to the general merits of the clause, 1452 or perhaps he might say even to the general merits of the Bill itself, there would have been nothing extraordinary in the patience with which they had listened to it; but, considering that many hon. Gentlemen had thought fit to talk for more than an hour in discussing every other question than that before them, he thought the patience of the Committee had been remarkable; and, therefore, he could not think it reasonable that the hon. Member should cut short the discussion; nor could he agree to waste time by consenting to the Motion for reporting progress.
§ MR. MILNER GIBSON
asked what would be the effect of the clause. The law officers of the Crown had stated, as he understood, that the Bull referred to in the clause was illegal because all Bulls were illegal, and that it was necessary to declare afresh that by the law all Bulls were illegal. That being the case, inasmuch as a Roman Catholic bishop could only ordain a priest by virtue of his office of bishop, conferred by the Bull, such ordination was declared by this Bill to be a misdemeanour, and, as he understood it, any person might commence proceedings as for a misdemeanour against the bishop for ordaining under such circumstances. He wished to know whether he was right in this view of the clause?
The ATTORNEY GENERAL
said, the question was somewhat complicated, but, as he understood the right hon. Member, it proceeded on the assumption that some one said all Bulls were unlawful. That might certainly be, inasmuch as the statute of Elizabeth had recently been referred to in an Act of Parliament which had not repealed that statute, though it had repealed the penalties for high treason which it had inflicted. But the Bill before the House did not declare all Bulls to be unlawful and void, but was confined to Bulls and Rescripts creating dioceses and sees with territorial titles, and declared them illegal and void. The misdemeanour was not created by the first, but by the second clause, which also imposed the penalty.
The EARL of ARUNDEL AND SURREY
said, that the clause declared all authority conferred by the Brief was illegal; any one who did an act under it was liable to be prosecuted by whoever liked. That was an interference with the exercise of religion, because they could not have a bishop without a Brief, and the vicars-apostolic were abolished. The Brief did 1453 not confer any title at all. The titles were conferred by a separate instrument the House had not yet seen. The mischiefs of the clause were at variance with the assurance of Government, that they would not interfere with religious liberty.
wished to know if the hon. Member for Mayo (Mr. Moore) withdrew his Motion for reporting progress?
§ MR. MOORE
replied, he not yet done so. He moved it because the Committee had not allowed him to proceed, though he had not spoken before. He would not now detain them very long, but wished to say a few words with respect to public opinion on this Bill. He wished to read only two or three lines published in the leading article of the paper which the hon. Member for the city of Dublin (Mr. Reynolds) had called the "semi-official organ of Government," the Times of that morning. The Times had been the very earliest in taking up the act of the Pope, and had been the most active in endeavouring to forward the Bill. He believed that journal truly represented public opinion in this country; but what he said was that public opinion did not authorise the House in the reckless way in which they endeavoured to force this Bill on the country. The article to which he referred contained the following-passages:—The 26th of May finds the question very much in the same position as the 1st, except that it has become more and more manifest that the lawyers do not understand the law, and that there is some danger, amid blunders, concessions, and all sorts of crooked and tortuous policy, that the House may succeed in creating a monster whose future action shall be something quite different from what was foreseen, intended, or desired. … … Whatever, therefore, may be the case in England, it is not true that in Ireland such rescripts are illegal and void. Their validity has been thus upheld in every court of justice in the country. This point would have been fairly raised had the proposition to take the preamble first been acceded to; and as, till it be settled, no legislation can be safe, we sincerely trust that it will be attended to before the first clause be passed into a law. … … Till something can be done towards arriving at an accurate knowledge of the present state of the law, it is vain to hope for satisfactory legislation. The Bill was read a second time without an agreement in principle; it is now passing through Committee without cither agreement or knowledge of the law; and the success or failure of its provisions seems entrusted, in the abeyance of diligence and default of acumen, to blind chance and fortuitous combination.He believed that to be true. He believed public opinion condemned the course which 1454 Members were pursuing in passing clause after clause— ["Oh, oh!" and laughter.] He meant to say in rejecting Amendment after Amendment, without knowing the purport of them. He believed that at least one-third of the Members then present did not know what the Amendment was on which they were about to vote. However earnest the public might be for legislation, it condemned such conduct as that. He would withdraw his Motion for reporting progress.
§ Question put, "That the Proviso be there added."
§ The Committee divided:—Ayes 59; Noes 344: Majority 285.
|List of the AYES.|
|Aglionby, H. A.||Meagher, T.|
|Anstey, T. C.||Mahon, The O'Gorman|
|Armstrong, Sir A.||Monsell, W.|
|Armstrong, R. B.||Murphy, F. S.|
|Arundel and Surrey, Earl of||Norreys, Sir D. J.|
|Nugent, Sir P.|
|Barron, Sir H. W.||O'Brien, J.|
|Blake, M. J.||O'Brien, Sir T.|
|Blewitt, R. J.||O'Connell, J.|
|Burke, Sir T. J.||O'Connell, M. J.|
|Castlereagh, Visct.||O'Ferrall, rt. hon. R. M.|
|Clements, hon. C. S.||O'Flaherty, A.|
|Corbally, M. E.||Oswald, A.|
|Devereux, J. T.||Pechell, Sir G. B.|
|Fagan, J.||Power, Dr.|
|Fox, R. M.||Power, N.|
|Gibson, rt. hon. T. M.||Pusey, P.|
|Goold, W.||Reynolds, J.|
|Grace, O. D. J.||Roche, E. B.|
|Grattan, H.||Sadleir, J.|
|Greene, J.||Scholefield, W.|
|Herbert, H. A.||Scully, F.|
|Higgins, G. G. O.||Sullivan, M.|
|Hobhouse, T. B.||Talbot, J. H.|
|Hope, A.||Tenison, E. K.|
|Howard, Sir R.||Towneley, J.|
|Hutchins, E. J.||Trelawny, J. S.|
|Keating, R.||Young, Sir J.|
|Lawless, hon. C.||TELLERS.|
|M'Cullagh, W. T.||Keogh, W.|
|Magan, W. H.||Moore, G. H.|
§ MR. J. O'CONNELL
suggested that, if the Government were sincere in saying that they had no intention of interfering with purely spiritual acts, they should bring forward some form of words that would distinctly declare that intention.
§ SIR GEORGE GREY
said, that there could be no interference by the Bill with purely spiritual functions. The object of the Bill was to declare that the assumption of authority by the Pope of Rome over the territory of England was illegal; but it was impossible that it could interfere with the doctrinces of the Roman Catholic Church.
The question I now 1455 have to propose is, "That the Clause stand part of the Bill."
§ MR. SADLEIR
said, he would test the sincerity of the right hon. Baronet the Home Secretary by the proposal he was about to make. The noble Lord (Lord John Russell) had altogether avoided touching the question which his hon. and learned Friend (Mr. Keogh) had raised. They had been told by the hon. and learned Attorney General, in answer to the right hon. Member for Manchester (M. M. Gibson), that there were some Bulls that were illegal, and that there were other Bulls or Rescripts that were lawful. Would the hon. and learned Gentleman follow up that explanation for the benefit of him (Mr. Sadleir) and other Members who were not "learned," by telling them which were the Bulls which were lawful, and which were not lawful? Knowing that the Roman Catholic bishops derived all their authority from these documents from Rome, and knowing, as he did, that there would be every disposition to test the legality of those documents in the courts of common law in that country, he participated with many in very serious apprehensions that most disastrous consequences would flow from legislation on this dangerous subject. The Government shrank from stating clearly and intelligibly what the law was. The hon. and learned Attorney General had entirely omitted to answer the question of the right hon. Member for Manchester in the spirit in which that question had been put. There had been much quibbling with respect to the Charitable Bequests Act; and he had heard an hon. Gentleman, when commenting upon that Act, say that it had been framed with great skill and caution, and probably that the archbishops and bishops might be vicars-apostolic. That was not so. In Ireland there had never been districts: from the first they had been dioceses, and the ancient Roman Catholic hierarchy had never been destroyed. He wished now to test the sincerity of the Government in those professions they had made of their anxiety to leave the Roman Catholics of the United Kingdom in the full enjoyment of their religion, and of all the usages and discipline of their Church. He was anxious that there should be no doubt or difficulty upon this point. But serious doubts were entertained. It might be that the law officers of the Crown did not feel these doubts and difficulties which other Members had sincerely felt; but eminent members of their own profes- 1456 sion had serious doubts, and had expressed their opinion, that if this clause passed in its present form, it might lead to disastrous consequences in reference to the ordination of priests of the Roman Catholic Church. It was all very well for the Government to tell them that the declaratory Act left the law as it found it, and that it did not profess to change it; but the Government had shrunk from the responsibility of stating clearly and intelligibly to the House what the law really was. He submitted that the hon. and learned Attorney General had altogether omitted to answer the question addressed to him, and had left them in utter ignorance on the subject on which they sought for information. Experience showed how difficult it was to rely upon such assurances as had been given, for, after they had legislated upon the question of mixed marriages, they had an instance in Ireland of a Roman Catholic clergyman being prosecuted for solemnising a marriage between a Protestant and a Catholic in that country. What he intended to propose was a proviso at the end of the Clause to remove those doubts which he felt in common with many other persons; and the words he had adopted were taken from a clause in the Charitable Bequests Act. Great practical and political mischief would result from loose legislation on this subject. Our legislation would, in this case, be nothing better than dead-letter legislation. It would be despised and contemned by the millions of the people in Ireland, and the most irreparable injury would be inflicted thereby on that country. The influence of moderate men would be weakened, the laity would be deprived of their legitimate weight, and the clergy would have forced upon them an amount of power which was not naturally theirs. On these grounds, he asked the Government to pause before they rejected the Proviso which he was about to move. Hon. Gentlemen opposite ought to remember that, however few in number the opponents of this Bill were, they were there faithfully representing the views and the interests of several millions of their fellow-subjects, and that fact alone was sufficient to justify the opponents of the measure in using all fair and honourable means of resisting its progress in conformity with the rules of the House. It was sincerely their object to extract the virus of the Bill, and to do what they could to promote the tranquillity of the country. He therefore trusted that they would hear no more 1457 of those wretched taunts in reference to that course of opposition which they had felt it their duty to take.
Amendment proposed, to add, at the end of the Clause, the following Proviso:—
Provided, that nothing in this Act contained shall be construed to affect any Archbishop or Bishop, or other person in Holy Orders of the Church of Rome, officiating in any District, or having pastoral superintendence of any congregation of persons professing the Roman Catholic religion, according to the usages and discipline of the Church of Rome, in the United Kingdom, as they existed previous to the 29th day of September, 1850.
§ LORD JOHN RUSSELL
said, the hon. Gentleman was only repeating a question which had already been repeatedly answered. He saw no advantage in entering into this argument. His right hon. Friend the Home Secretary had already stated that the Bill did not interfere with the functions of Roman Catholic clergymen—they had already debated and divided upon it—and he saw no advantage in doing so again.
§ MR. OSWALD
said, as the question of the existing forms of the Roman Catholic religion had been mooted, he wished to state what he understood to be the law in Scotland, previous to the 29th of September, 1850. There was a statute, the 2nd of the year 1569, which bore the rather formidable title, "An Act anent the Abolition of Popery." It provided—That nane of our said Soveraines subjects, in ony times heirafter, sute or desire title or richt of the said Bisehop of Rome, or his sect, to ony thing within this realme, under the paines of Barratrie, that is to say, proscription, banishment, and never to brake honour, office, nor dignitie within this Realme. And the contra-veners heirof to be called before the justice Or his deputes, or before the Lords of the Session, and punisched therefoir, conforme to the Lawes of this Realme. And the furnischers of them with finance of money, and purchassers of their title of right, or maintainers, or defenders of them, sail incurre the samin paines. And that na Bischop nor uther Prelat of this Realme, use ony jurisdiction in time camming, be the said Bischop of Romes authoritio, under the paine foresaid. And therefoir of new decernis and ordainis, the contraveners of the samin, in ony time heirafter, to be punisched. according to the paines in the foirsaid Act above rehearsed.In the year 1700 another Act was passed, ratifying and confirming every Act which had been previously passed against the Papists. In the 33rd year of George III., an Act was passed by the Parliament of the United Kingdom, abrogating all the pains and penalties contained in former Acts which by name were recited and confirmed in the Act of 1700. But it hap- 1458 pened that this Act of 1567 was not one of those Acts so named and recited. It happened that in the fifth Act of the same Parliament of 1567, there was another Act making the celebration of the mass in Scotland penal. In Hume's Treatise on Crime, published in 1829, that Act was stated to be still in force. Therefore by parity of reasoning the other Act of 1507 must also be still in force in Scotland. He had applied to eminent counsel in Edinburgh on this subject, who referred him to the Treatise of Hume on Crime, but would not answer the question whether the Act was in force in Scotland or not. Now the hon. Gentleman the Member for Carlow (Mr. Sadleir) proposed, by the proviso he wished added to the clause, that the law should be left in the same state as it was previous to the 29th of September, 1850; and as he had some doubts as to what was the law of Scotland on this subject he had come to the highest court in the realm to have his doubts solved.
The EARL of ARUNDEL AND SURREY
was ashamed to recur to the clause which had been so much talked of; but he understood that in his absence the right hon. Baronet the Homo Secretary had stated that this clause did not affect the spiritual jurisdiction or authority of the Roman Catholic prelates. If that were so, and if the clause was not intended to have a deeper meaning, he could not see what objection they had to the insertion of this proviso.
§ MR. TRELAWNY
held in his hand the legal opinion of an eminent lawyer, which stated that as the assumption of a title confirmed by this Rescript was illegal, it followed that every act performed by a bishop would be illegal, would be held as a misdemeanour, and that any person might prefer an indictment against him for doing so. He wished to know from the hon. and learned Attorney General what would be the effect of this clause in a case which he would mention. Suppose a Catholic dignitary under the title of Archbishop of Westminster ordained a priest, and that afterwards the archbishop for some act of impropriety censured this priest, or deposed him from his cure, and he chose then to turn against his bishop, and to produce the letters of ordination in virtue of which he was appointed to his cure of souls, would it be in his power to make use of these letters to proceed against his bishop for a misdemeanour, and to put in evidence that statement, in 1459 his (the bishop's) own handwriting, by virtue of which alone he was made a priest?
The ATTORNEY GENERAL
said, that he had answered this question over and over again. He really did not know how to frame answers if hon. Members persisted in not understanding them. He had already said again and again that in his opinion, under this first clause no misdemeanour would arise; that it affected only the validity of acts done under assumed territorial titles. Whatever this Bill contained of penalty, was constituted under the second clause. If the Act to which the hon. Member had referred was done under the authority, of an archbishop, and the assumption of the title was, under the particular circumstances of the title, illegal, so as to constitute an offence, it would arise under the second clause, but certainly not under the first — the only clause then under the consideration of the Committee.
§ MR. TRELAWNY
said, that this was much too important a matter to be passed over in this manner. He must quote 'further from the opinion to which he had already referred:—It is important to observe that an indictment would lie, though the bishop did not use the title of his diocese or see in performance of the act in question. It would be a question for the jury whether the act was done in pursuance of any authority conferred by the brief. If so, it would be a misdemeanour.
The EARL of ARUNDEL AND SURREY
Then I have to say that several very high legal authorities take a contrary view.
§ MR. BLEWITT
said, that he considered the first clause of the Bill, all "moonshine;" he supposed that in the event of any proceedings under this clause, the hon. and learned Attorney General would have to put in evidence this "certain Brief, Rescript, or Letters Apostolic;" he wished to know from the law officers of the Crown (and he believed this question, at all events, had not been asked before) where he would find them?
The ATTORNEY GENERAL
regretted to say that he had already answered that question, and he thought he must at length lay down this wholesome law to himself—that he would not answer any question a second time, unless it was put professionally, and with a professional fee. No proceeding could be founded by the 1460 Attorney General upon this first clause. The whole of the Attorney General's jurisdiction would be founded on the second clause; the first, as he had said over and over again, only invalidated acts done with an illegal assumption of a title.
§ Question put, "That the Proviso be there added."
§ The Committee divided:—Ayes 47; Noes 278: Majority 231.
|List of the AYES.|
|Anstey, T. C.||Meagher, T.|
|Arundel and Surrey, Earl of||Mahon, The O'Gorman|
|Blake, M. J.||Moore, G. H.|
|Blewitt, R. J.||Murphy, F. S.|
|Clements, hon. C. S.||Nugent, Sir P.|
|Corbally, M. E.||O'Brien, J.|
|Devereux, J. T.||O'Brien, Sir T.|
|Fagan, J.||O'Connell, J.|
|Fortescue, C||O'Flaherty, A.|
|Fox, R. M.||Pinney, W.|
|Gibson, rt. hon. T. M.||Power, Br.|
|Goold, W.||Power, N.|
|Grace, O. D. J.||Reynolds, J.|
|Grattan, H.||Scholefield, W.|
|Greene, J.||Scully, F.|
|Higgins, G. G. O.||Smythe, hon. G.|
|Hobhouse, T. B.||Talbot, J. H.|
|Hope, A.||Tenison, E. K.|
|Howard, Sir R.||Trelawny, J. S.|
|Keating, R.||Wegg-Prosser, F. R.|
|Keogh, W.||Young, Sir J.|
|Lawless, hon. C.|
|M'Cullagh, W. T.||TELLERS.|
|Magan, W. H.||Roche, E. B.|
|Maher, N. V.||Sadleir, J.|
§ MR. KEOGH
said, the hon. and learned Attorney General said it was perfectly impossible that any indictment should lie on this clause. Some of the first lawyers in England did not entertain a doubt that an indictment would lie; and as it was necessary to have the point clearly expressed in the Bill itself, he would move, to add the following proviso:—Provided that no criminal proceeding shall be commenced, or indictment preferred against any person, under or by virtue of this clause.This was an important proviso, and perhaps it would be as well that he should not move it now, but that he should give notice of it.
§ MR. REYNOLDS
considered that the advanced hour of the morning was his excuse for moving that the Chairman do now report progress.
§ LORD JOHN RUSSELL
said he would not give the Committee the trouble of dividing on this Motion. He thought it was now sufficiently clear that hon. Members had been making the same Motion over and over again. That when they had gone into the lobby, finding themselves in a small minority, they had framed Motions at the moment which had been before rejected, and brought them before the Committee in a different shape. That being sufficiently obvious, he thought it as well that they should have time to reflect upon this conduct, and he did not think they would be inclined to repeat it again when they saw that public opinion condemned such a mode of proceeding.
The House resumed; Committee report progress; to sit again on Thursday.