§ Order for Committee read.
§ House in Committee; Mr. Bernal in the Chair.
§ Clause 1.
§ MR. KEOGH
said, that previously to the Chairman reporting progress on Monday night, be moved that a proviso be added to the clause to the following effect:—"That no criminal proceedings be commenced or indictment preferred against any person under or by virtue of this clause." He now proposed to add to this proviso the words, "except with the consent of the Attorney General for the time being, previously had and obtained."
§ MR. MOORE
hoped he might be allowed to say a few words with reference to the criticisms which had been made upon the conduct of hon. Members who had felt it their duty to oppose this Bill. At the conclusion of the proceedings in Committee on Monday night, the noble Lord at the head of the Government lectured the opponents of the Bill in a tone and manner which—considering the whole conduct of the noble Lord in connexion with this unfortunate measure—he was by no means entitled to employ. The noble Lord told the opponents of the Bill, that he would give them time to reflect on their conduct; and certainly, if any Member of that House was warranted in warning others of the danger of acting without taking time to reflect, it was the author of the celebrated Durham letter; and he had no doubt that the noble Lord, revolving in his own mind the embarrassments created, the difficulties incurred, the inconsistencies brought out, and the dangers encountered by that one act of haste and rashness, was actuated by a feeling of sympathy in wishing to give others that time for reflection which, unfortunately for himself, he did not take. The noble Lord also told his opponents they might not be inclined to repeat the conduct they had pursued if they found it was condemned by public opinion. Now, he must remind the noble Lord of a circumstance which he appeared to have forgotten, namely, that there was a public opinion in Ireland as well as in England. The noble Lord once bowed to the "public clamour" of Ireland abjectly, as he now 269 ducked to public opinion in England. He (Mr. Moore) appealed to the House whether, in reference to the Bill under consideration, public opinion had not censured the noble Lord quite as severely as his opponents, and whether the delay which had attended the progress of the measure was not chiefly attributable to the noble Lord himself? He entreated hon. Members to mark the course that had been followed with regard to the Bill. On the Motion for leave to introduce the Bill, on the 7th of February, there were four nights' debate. Twenty-one speeches were made in favour of the Motion, and twenty against it; and, on referring to Hansard, it appeared that as nearly as possible the same number of pages were occupied by the supporters as by the opponents of the measure. It was evident, then, the opponents of the Bill, on that occasion, only did their duty in replying to its advocates. The Motion for the first reading was made on the 14th of March. The delay between the 7th of February and the 14th of March was caused, not by the opponents of the Bill, but by the feebleness and incapacity of the Government. The question of the first reading was debated for seven nights—a long period, no doubt; but he found that there were twenty-four speakers for the Bill, and only twenty-eight against it, while the former occupied rather more time in addressing the House than the latter. The subsequent delay caused by the postponement of the Bill till after Easter was the act of the noble Lord himself; and even after Easter the measure was again postponed for another week, in order to meet the convenience of the Administration. On the question that Mr. Speaker should leave the Chair, one evening was occupied with the Motion of the hon. Member for Stafford (Mr. Urquhart), with which the Irish Members had nothing to do; and he (Mr. Moore) subsequently felt it his duty to address the House on a point of order which no Member of the House—from Mr. Speaker downwards—would say was not deserving of serious consideration. The House having gone into Committee, what occurred then? Although the Bill had been postponed for a month, to allow the Government to reconsider and amend it, yet, at the eleventh hour, on going into Committee, the Government adopted a new clause of the greatest importance, the depth and obscurity of which they had never yet been able to fathom. The opponents of the 270 Bill very naturally suggested that the clause should be printed in the Bill before the Committee was called on to discuss it, and, scarcely credible as it would appear, that reasonable proposition was resisted by the noble Lord. A considerable debate ensued, and at last the noble Lord assented, most ungraciously, to what he had pertinaciously opposed. At length the House went into Committee on the reprinted Bill, which was delivered only at the eleventh hour, wet from the press. The right hon. Member for the University of Oxford (Mr. Gladstone) and others, declared that sufficient time had not been allowed to enable them to understand the provisions of the Bill, and consequently the measure, after some debate, was postponed for another week. When the House went into Committee on the appointed day, the hon. and learned Member for Athlone (Mr. Keogh) moved that the preamble should be postponed; but the Motion was rejected, although it was now universally admitted that its adoption would have greatly facilitated the discussion of the measure. When the first clause was proposed, it came out for the first time that while the hon. and learned Member for Midhurst (Mr. Walpole) had proposed it in a limited and restricted sense, the Government had adopted it in a sweeping and mischievous one, and extended it to a part of the empire to which the hon. and learned Member for Midhurst did not mean it to apply. Under these circumstances, it was not surprising that the opponents of the Bill should endeavour to effect alterations with a view of reconciling the contradictory opinions of the hon. and learned Solicitor General, and the hon. and learned Member for Midhurst, and to rescue the clause from the doubt and obscurity in which it was designedly left by the Government. The noble Lord complained of his opponents for moving provisoes identical, he said, in spirit, if not in words. All he could say in reply was, that the provisoes were as different from each other as the present Bill was from the one originally introduced. [Here the hon. Member recapitulated the provisoes which had been moved, with the view of showing their variance from each other.] The hon. Members who moved the provisoes had no other object than to make the first clause do that which the Government declared it was intended to do. Public opinion, it was true, called for legislation on this subject; but it called for legislation clear and defi- 271 nite, not legislation that was purposely obscure and ambiguous. Public opinion called for a statute which should resist the recent act of the Pope, without interfering with or insulting the religious feeling of any part of the Queen's subjects; but this Bill did interfere with the free exercise of the Roman Catholic religion, while it did not resist the alleged aggression. On these grounds he appealed to that House, and to the public opinion which the noble Lord himself invoked, against the proceedings of the Government.
§ MR. KEOGH
wished to take the opinion of the House upon the proviso of which he had given notice, and which, if adopted, would have the effect of preventing any indictment being made without the consent of the Attorney General. He hoped the Government would agree to this; and, if so, he would offer no further opposition to this clause.
§ LORD JOHN RUSSELL
said, his hon. and learned Friend the Attorney General had stated very fully his views on the proviso a few nights ago. He (Lord John Russell) could not agree to it.
Then the question for the Committee to decide is, "That Clause 1 stand part of the Bill."
§ SIR JAMES GRAHAM
Mr. Bernal, I am at all times most anxious to attend to the wishes of this House, and I am persuaded they will view with jealousy any approaches to delay in proceeding with the details of this measure. Having been indulged by this House with a full opportunity of stating my opinion on the principles of this Bill on the occasion of the second reading, I have carefully abstained during the progress of the Bill in Committee, up to the present time, from taking part in the discussion. But having now arrived at the conclusion of the first clause, which was not part of the Bill when last I had the honour of addressing the House on this subject, and feeling great doubts with respect to the real import of that clause, I hope the Committee will pardon me if I intrude upon their attention for a short time, taking care not to restate my opinions on the principles of the Bill, which, however, are still unchanged, but confining myself entirely to the clause in question. It might, indeed, have been the policy of the opponents of the principle of 272 the Bill, who constitute a small minority in this House, to have left the arrangement of the details of the Bill to the large majority who support it, and to have waited for the opportunity, when it came out of Committee, to consider the shape in which that majority, after full discussion and careful deliberation, had chosen to carry out the principle which they support. Still, I think this clause is of such grave importance, and especially it is so very ambiguous, that it is expedient to ask for some discussion upon it, in the hope that we may possibly obtain some explanation as to its real import. I must first ask what is the intention of the clause, and then, if I can divine what its intention is, I will apply myself to the object which is sought to be effected by it. Usually, when there is any doubt as to the object of a declaratory clause, we look to the preamble of the measure. Now, the clause is one of a peculiar character. It is a clause which Her Majesty's Government have adopted at the suggestion of my hon. and learned Friend the Member for Midhurst (Mr. Walpole), and in seeking to discern the intention of that clause through the medium of the preamble, we must first look to the preamble as originally proposed by Her Majesty's Government, and next to the preamble as it is sought to be amended by my hon. and learned Friend. The preamble proposed by Her Majesty's Government is somewhat peculiarly worded, but I shall only deal with that part of it which applies to the first clause. It recites—Whereas divers of Her Majesty's Roman Catholic subjects have assumed to themselves the titles of archbishop and bishops of a pretended province and of pretended sees and dioceses within the United Kingdom, under colour of an alleged authority given to them for that purpose by a certain Brief, Rescript, or Letter Apostolical from the See of Rome, purporting to have been given at Rome on the 29th of September, 1850.Now, this is rather peculiar phraseology, because you will see that these words apply only to one Rescript of a particular date, which is strictly applicable to England only, and does not extend to the United Kingdom; and the words "United Kingdom" are therefore only adopted in this sense, that England is a part of the United Kingdom. In no other sense can the words be used, for the Rescript does not extend to Ireland, but is expressly limited to England. Now, therefore, if the intention of the Government, with regard to this declaratory clause, is 273 to be sought from the preamble, the inference is that this clause is intended by Her Majesty's Government to be strictly limited to England, as it is strictly limited to the one particular Rescript which applies to England only. Now, let me call the attention of the Committee to an intended alteration of this preamble, as it is proposed to be amended by my hon. and learned Friend (Mr. Walpole), who is the real author of this clause. Does he seek to limit the clause—judging by his amendment of the preamble—to England, or to the one Rescript? Nothing of the kind. Look at the words of which he has given notice. After the word "pounds" he proposed to omit all the following words down to the word "United Kingdom," and to insert the words, "And whereas the said Brief, Rescript, or Letters Apostolical" (alluding to the Rescript of September 29, 1850); he then proposed the following important and significant words: "and all such or the like acts or matters touching the Queen, her Crown, her Regality, or the Realm." It is here clearly indicated that all Bulls, all Rescripts, or any such acts and matters which touch the Crown or the Realm—that is to say, in his opinion—as indicated in his speech on the second reading of the Bill, that the Rescript of the 29th of September touched them—all such matters, whether future or antecedent, shall come under the operation of this declaratory clause. We have here an intimation conveyed, as clearly as words can convey a meaning, that the intention of my hon. and learned Friend differs from the intention of Her Majesty's Government; that he does not mean to apply the Act to one Rescript, or to England only, but that it is to be applicable to the United Kingdom, and to all Rescripts or Bulls from Rome, whether future or antecedent. But now again let us observe what is the intention of Her Majesty's Government, as indicated by their conduct respecting the first Bill which was laid on the table of this House. That Bill contained a second and a third clause, following that which is now the second clause of the present Bill, but which Her Majesty's Government, on deliberation, withdrew, and for reasons fully stated by the right hon. the Secretary of State for the Home Department. Upon full consideration, and after argument in this House, they were satisfied that the second and the third clauses would interfere with certain spiritual functions of 274 the Roman Catholic episcopate, which they did not think it expedient to touch, whether in England or in Ireland, such as ordination, collation to benefices, and other episcopal functions which they were anxious not to disturb. Now, I ask, is it the intention of the Government, who have since adopted this first clause, to adhere to the purpose which they deliberately announced to the House when they withdrew the second and third clauses of the former Bill? It would be very desirable to come to some distinct understanding on that point; and it appears to be the more difficult to arrive at a clear understanding on account of a change in the law officers since the measure was introduced. I am very sorry that the right hon. and learned Gentleman the Master of the Rolls is not now present; but I am sure the House will remember that he, then holding the office of Attorney General, gave an opinion, to which, on reflection, he distinctly adhered, that, as the law now stands, there is no impediment whatever to the Pope dividing any portion of this country into sees, dioceses, or provinces—call them by whatever name you please—for ecclesiastical and episcopal purposes. I am sorry to be obliged to discuss this question in the absence of the right hon. and learned Master of the Rolls; but I took a note of it at the time, and I believe if lie were present he would not deny that he gave that opinion, and that he still adheres to it. The right hon. and learned Gentleman is no longer an officer of the Crown; he fills a high judicial position; but there is present one of the law officers of the Crown, a Gentleman of great ability, to whose opinions I attach much importance, both on account of his talents, and especially on account of the frank and manly manner in which he always states his opinions—I mean the hon. and learned Solicitor General. I have a strong recollection of what he said; but all events he is present, and will contradict me if I misrepresent him. I understood the hon. and learned Gentleman to say, that by law, at this moment, such a Rescript is, in his opinion, illegal; that the clause is a declaratory one, and does not alter the law, but simply affirms the law as it now is; and he went on to say that the effect of this declaratory enactment on all the courts of law will ho, that where a case in pari materiâ with this present Rescript is brought before them, they will decide the law as it is declared by this Bill. If that be so, is it not clear that this 275 clause extends far beyond the limits of England, far beyond the narrow grounds of the Rescript of the 29th September—that it lays down general principles of law which are applicable to all parts of the United Kingdom, to be peremptorily observed by every court of judicature throughout the realm? The opinion of the hon. and learned Solicitor General thereby differs from that of the right hon. and learned Master of the Rolls in this—that every Rescript of the Pope appointing bishops to a see within his realm is illegal, and must be held to be illegal by every court of law. Now, I have shown what I think is the intention of the Government, at least if we are to follow the opinions of the hon. and learned Solicitor General. I have shown what is the intention of my hon. and learned Friend the Member for Midhurst, declaring them not by inference, but speaking in express terms in the preamble which he has proposed; and having thus shown what is the intention on both sides, then I beg the Committee to consider what will be done by the adoption of this clause; and I say that its operation in Ireland will be, in my apprehension, fatal to the peace of that country. Recollect what the noble Lord at the head of the Government said, when he notified to the House his intention to withdraw the second and third clauses. He used this remarkable expression—such is the subtlety of the spiritual Power with which we have to contend, that language fails us—and after all his applications to the distinguished law officers of the Crown, he said that in endeavouring to prohibit what he sought to prohibit, he found that unintentionally he destroyed what he sought not to disturb. See, then, what the noble Lord has done. In despair, abandoning the language which failed him—abandoning the advice which he received from his law advisers—in despair he comes to my hon. and learned Friend (Mr. Walpole), and adopts both phraseology and a declaratory clause, probably intending to limit it in the same way as he announced it to be his wish to do, when he withdrew the former clauses; and he adopts a general declaration to which its author purposes to give the largest possible extension. If this clause is intended to touch ordinary Rescripts, and if it effect its purpose, what is it you will do? The Roman Catholic religion is an episcopal religion. All its bishops in the United Kingdom are appointed by the Pope by Rescript. If 276 you declare that such Rescripts are illegal, then everything that flows from the nomination of the Pope is illegal also. You cannot have ordination without a legally constituted episcopacy. If you vitiate the episcopacy, then ordination by law is impossible; the titles of parish priests will be vitiated also. All their acts will be illegal—marriages solemnised by them will be invalid; every reason which prevailed upon the Government to withdraw the second and third clauses which were formerly in the Bill, applies a fortiori to this declaratory enactment. But does the case stop here? I am afraid to embark upon a question of nice legal import that may be pregnant with the gravest consequences; but I have always understood it to be a principle of law, that if you declare a particular act to be illegal, and prohibit it, then, even though you assign no penalty to the infraction of your prohibition, yet the act, and everything done in pursuance of it, becomes a misdemeanour, and is indictable. There has been some desire, and a very praiseworthy desire, on the part of the Government, to restrict the power of prosecuting under this Bill to the responsible advisers of the Crown. That, however, only applies to the civil penalty. But if the principle of law to which I have alluded is correct—if it be an indictable offence—you lose all control over the prosecutions. You may have a question raised in Ulster as to the conduct of that Italian monk, as the hon. and learned Attorney General calls him, because any act done by him in virtue of that Rescript of the Pope, which designates him as Primate of all Ireland—such a Rescript being itself an illegal act—anything done by Archbishop Cullen under that Rescript would be an illegal act, and he would be exposed to an indictment which might be raised by any one who was actuated by angry feelings against him—it would be open to a grand jury to find the Bill, and the question would go before the petty jury. In such a state of affairs, I repeat, there would be great danger in Ireland; the peaceful government of that country would become utterly impossible. But, above all things, if you legislate, legislate plainly, distinctly, and intelligibly, instead of leaving men to find out by conjecture your doubtful inuendo, to be sought for through the labyrinth of a long preamble. But let us apply the dictum of the hon. and learned Solicitor General 277 to another case. There is the wardenship of Galway, which was abolished by a Rescript of the Pope in 1831, and converted into a bishopric. For twenty years that appointment, and the acts of the Bishop of Galway have remained unchallenged by various Governments, and no resistance had ever been offered to an appointment so made. But let this declaratory clause become law, every Rescript of the Pope, according to the hon. and learned Solicitor General, will then become illegal, and the Bishop of Galway, who acts under a Rescript from the Pope in his spiritual capacity, appointing him to the see of Galway, will, if there be any force in what I have addressed to the Committee, be open to an indictment as guilty of a misdemeanour. But what is to become of the acts of the Bishop of Galway for the last twenty years, the ordination of his priests, and the acts of the priests so ordained? If these acts were in themselves null and void, of course their consequences would be null and void also. You will embark on a sea of angry legislation, of conflict, of confusion of social rights, which it is melancholy to contemplate, and which I believe would be fatal to the peace of the district. But is the recognition of the Papal authority in spiritual matters entirely new in this country? On the contrary, it has been frequently recognised, and in most marked cases. The recognition of the Pope's authority is made in the 6th clause of the Charitable Bequests Act; and I may say a word or two in passing on that measure. There is no question that it was carefully framed with a view to avoid any collision with the provisions of the Roman Catholic Relief Act of 1829—it was studiously limited to the precise extent of that Act—but, at the same time, it directly recognised by their titles the archbishops and bishops of the Roman Catholic Church; and, more than that, the 6th clause recognised their spiritual authority, and almost their jurisdiction; for it was provided that in certain cases of doubt the Roman Catholic members of the Board, who were bishops, should declare who were the persons who were designated to bequests by spiritual titles, and that there should be no appeal from their decision. There was a distinct recognition of their authority, and indirectly there was a recognition of the canon law, since there could be no doubt that the decisions of these prelates would be guided by the principles of that law. Is there no other case? There was 278 a case some time ago, which very nearly touched the succession to the Crown of these realms itself, it was the claim of Sir Augustus Frederick D'Este to the dukedom of Sussex. The question with regard to the legality of the marriage of the late Duke was argued at the bar of the House of Lords, as to the legal effect of marriages in foreign countries, and, by an odd coincidence, Sir Thomas Wilde, now Lord Truro, the Lord Chancellor of England, and the Keeper of Her Majesty's conscience, conducted the cause of the claimant, and went at large into evidence on this question, and the first witness he called was Dr. Wiseman. I shall read to the Committee a few of the questions which were put by Sir Thomas Wilde to Dr. Wiseman at the bar of the House of Lords, and which will show to what extent in his supreme court of judicature we recognise the Pope's authority. Dr. Wiseman was asked—Are you a Catholic bishop?—I am.Do you hold any ecclesiastical office in England?—I am coadjutor to the bishop, who is vicar-apostolic of the central district of England at present?In the event of any questions arising in England relating to the validity of Catholic marriages, have you any jurisdiction or judicial authority upon those questions from the See of Rome?—The vicars-apostolic in England have the same jurisdiction in respect of matrimonial cases which any bishop would have upon the Continent.Are you appointed an ecclesiastical judge by the Court of Rome in this country?—In matters relating to ecclesiastical jurisdiction.Is there any ecclesiastical authority in this country to decide upon the subject of marriages except the Catholic bishops?—No.The persons holding that office are the authorities which have jurisdiction throughout Catholic countries to decide upon questions of marriage?—Generally; generally, that is, matrimonial cases, as far as the canon law and ecclesiastical law affects them, belong to the jurisdiction of the bishops.And are you one of those bishops?—I am in that capacity.What are the authorities in this country from the See of Rome that have power to decide upon questions arising between Catholics respecting marriage?—Tho vicars-apostolic of England.Does their authority extend to all questions relating to marriage, as well its validity as its regularity, or is it limited?—It is limited with respect to the power of dispensing in certain cases in which they are obliged to have recourse to the supreme authority at Rome. With the exception of those cases, the powers are the same as would be exercised in Rome itself. I ought to observe that I stated myself to be the coadjutor to the vicar-apostolic. It might be necessary to explain in what relation I am. I am appointed by the Holy See with the character of bishop to assist the bishop in the administration of his diocese, 279 receiving participation in all his faculties and powers from him, that participation being sanctioned, of course to the full extent to which he gives it, by the Holy See. With respect, therefore, to matrimonial cases, I am in possession of the same administrative faculties which he exercises.Have you, during your residence in this country, exercised that jurisdiction?—Frequently.In the course of that do you administer your functions with reference to the ecclesiastical law of Rome? Is that your guide and rule?—I am guided by the ecclesiastical law of the Church as applicable to this country. For instance, as to the case of the clandestinity, or any matter involved in that decree of the Council of Trent, I should have to administer for England as for a country in which that is not promulgated; but if cases came before me from other countries in which it is promulgated, I should have to decide according to the practical judgment I should form of the force of that canon in those countries.Then Dr. Wiseman was cross-examined by the Attorney General, and these questions were put to him:—You say that you have the power of deciding whether a marriage is valid or invalid. Suppose you decide it to be invalid, what is the consequence of that decision?—That the parties would be obliged to separate, unless I granted a dispensation, or, if it was not within my faculty, procured it for them; but, until such dispensation was granted they would have to separate.You say they would be obliged to separate; but suppose they did not separate, what then?— Then of course they would not be admitted to participation in the rites of the Church—to the sacraments of the Church.Therefore your jurisdiction is entirely confined to spiritual censures, and to consequences of an ecclesiastical kind?—Certainly; entirely.You would have no power to effect the property or the civil rights of the parties?—Not in this country, except in foro contcientiœ.Observe the closeness of the connexion between the civil and spiritual powers that run into each other. True, that in foro conscientiœ the bishop can only deprive them of the rites of the Church; yet hon. Members will observe that it has been distinctly recognised at the bar of the House of Lords that the authority which their bishops exercised, in their jurisdiction over the sacraments of the Romish Church, affecting the consciences of 8,000,000 of Her Majesty's subjects, is derived directly from Rome; and it is this authority and jurisdiction, so derived, that the House is now asked to declare illegal, and null and void. Well, I refer again to the provisions of the Charitable Bequests Act. It was passed at a time when there was a statute on the books declaring that the receipt of all Bulls, Rescripts, &c. from Rome was illegal. I was a party to the introduction of the Charitable Bequests Act in 1845, 280 and one of the last acts of Sir Robert Peel's Government in 1846 was the introduction, through Lord Lyndhurst, of a Bill (the Religious Opinions Relief Act) which, as it originally stood, went the whole length of repealing the 13th of Elizabeth, which decreed the receipt of Bulls and Rescripts from Rome to be illegal. I may be permitted to read a short passage from Lord Lyndhurst's speech on introducing the Bill. His Lordship said—They tolerated the Catholic prelates, and they knew that these prelates could not carry on their Church establishment, or conduct its discipline, without holding communication with the Pope of Rome. No Roman Catholic bishop could be created without the authority of a Bull from the Pope of Rome; and many of the observances of their Church required the same sanction. The moment, therefore, that they sanctioned the observance of the Roman Catholic religion in this country, they, by implication, allowed the communication (with the Pope) prohibited by this statute, and for which it imposed the penalties of high treason. If the law allowed the doctrines and discipline of the Roman Catholic Church, it should be permitted to be carried on perfectly and properly; and that could not be without such communication. On these grounds he proposed to repeal that Act."—[3 Hansard, lxxxv. 1261.]The proposition made by Lord Lyndhurst was the entire repeal of the 13th Elizabeth; it assumed another form during its progress through the House; it repealed the whole of the penalties, and not the Act itself; but the intention of Sir Robert Peel's Government was that the Act itself should be repealed. Lord Lyndhurst goes on further. He says:—But he proposed the repeal of this statute for other and still stronger reasons. No such statute existed in Scotland, and, what was still more remarkable, such a statute had never been passed by the Irish Parliament, though in that country three-fourths of the inhabitants professed the Roman Catholic religion. He knew that many of his noble friends had been, on the first impression, much staggered at this proposition; but the more they had examined into the question, the more convinced were they of the expediency of the course which he proposed. If their Lordships thought that when the Bill got into Committee the measure might be in some degree modified, provided it could be satisfactorily made out that Roman Catholics would he enabled to do what the law authorised them to do, and to do it effectually, he should have no difficulty in acceding to such a modification."—[Ibid,]There is one observation in what I have just read to you, that does not appear to me in exact accordance with the great acuteness of my noble and learned Friend. He appears somewhat surprised that no such statute as the 13th of Elisabeth was ever passed in Ireland. I am not at all 281 surprised at it. He states the reason, namely, that three-fourths of the inhabitants of that country are Roman Catholics. In England it is quite possible to treat the Roman Catholics as a sect, but in Ireland the Roman Catholics are a nation, and must be treated as such. And if this declaratory clause and its effect be what I anticipate—if its legal effect be what I believe it to be on the authority of the hon. and learned Solicitor General—I do apprehend, under the colour of this clause, that we go a great deal further than Her Majesty's Government intended when they framed this Bill. The second clause, about the assumption of titles and the 100l. penalty, I consider to be as nothing compared with this clause. In fact, I think this clause goes further than the second and third clauses in the original Bill, which were withdrawn as going too far. I may be in error in this opinion. But I confess I am more alarmed by the doubt and ambiguity of the clause, and I should like very much to have that doubt and the apprehension which I entertain removed. I know not whether the right hon. and learned Attorney General for Ireland is in his place. ["Hear, hear!"] I should be sorry if there was anything like a sneer when I alluded to that right hon. and learned Gentleman. He has risen to eminence in his profession amidst many rivals. He certainly labours under the great disadvantage of coming into this House late in life, a disadvantage which I feel for his sake acutely. But still he occupies an eminent position. Since I have been in this House, I have seen it occupied by O'Loghlin, Woulfe, and the present Master of the Rolls (Sir T. B. Smith), who is inferior to none in legal attainment. The Attorney General for Ireland is the law adviser of Her Majesty with respect to Ireland; and here is a question of legal doubt affecting the peace and future government of that country, and I should like to hear his opinion on the effect of this clause. [The right hon. and learned Gentleman the Attorney General for Ireland here, entered the House.] I rejoice to see the right hon. and learned Gentleman in his place, and I am sure the Committee will say that I have said nothing unkind of him. I should be sorry to see him placed in any position which was the least painful; but in a question of great doubt affecting the religion, the feelings, and the interests of so large a portion of Her Majesty's subjects as the Roman Catholics of Ireland, I 282 do think, before we pass this clause, it is important that we should know what that right hon. and learned Gemtleman says will be the effect of this declaratory clause as relates to the episcopal authority of the Roman Catholic Church in Ireland. If I am in error in my apprehension of what the effect of this clause is to be, no man will be more ready to have that misapprehension removed by the right hon. and learned Gentleman (the Attorney General for Ireland). I know that in a matter of this kind it is not usual to pass a declaratory clause. I like a direct and unambiguous Act of Parliament. If the law be imperfect, remedy it at once—if the law be plain, why then I cannot sec any occasion for a declaratory clause. But I fear that Her Majesty's Government, not satisfied with the Bill now before us, have indicated a purpose of proceeding further in this direction; and I am still more alarmed when I hear of old statutes, and that this is a declaration of an intention to revive dormant laws. I am not only afraid of what this clause does, but I am still more alarmed at the animus which it shows, and the danger of reviving those old Acts of Parliament. We have heard something of the statute of Richard II. I doubt whether, according to the letter of the law, the statute of Richard II. does not do all that your declaratory clause enacts. It was happily said by a great Irish statesman (Mr. Curran) that these old Acts hang up like rusty armour—they are only endured because they are not executed; and it is only their inactivity which renders them tolerable in a free country. The ambiguity of this clause, and the threats which accompany it, that future enactments will be proposed fill me with dismay; but, more than all, I am alarmed by the distinct intimation, that if this declaration be not attended to—that if rescripts from Rome appointing archbishops and bishops in Ireland be not discontinued, notwithstanding the usage of the last hundred years—an attempt will be made to revive those old statutes and bring them into operation. I am ashamed of such a threat. I declare to you that nothing ever gratified me more than the conduct of Government in withdrawing the second and third clauses of this Bill. I thought it was an indication of that spirit which actuated their counsels upon religious questions generally, in which I most entirely agreed. I think the after-thought of adopting this clause which we are now debating, at the instance of my hon. and learned Friend 283 the Member for Midhurst, is most unfortunate. I cannot satisfy myself as to the precise extent to which it may be carried, if we adopt it. Blindfold I cannot consent to pass it; at all events I enter my protest against that clause, and I am prepared certainly to divide against it. I hope I have kept my word and confined myself to the clause itself, and that I have not gone into the general principle of the Bill.
The ATTORNEY GENERAL
said, he exceedingly regretted the absence of his right hon. and learned Friend the Master of the Rolls, whose name had been called in question by the right hon. Baronet who had just sat down. He had stated, with respect to the Master of the Rolls, that upon the first discussion on this Bill that right hon. Gentleman stated to the House that he had given an opinion that the Pope had a power by law to appoint ecclesiastics in this country, with dioceses and sees, for ecclesiastical purposes. Now, he took the liberty of saying that the right hon. Baronet was under a complete misapprehension.
§ SIR JAMES GRAHAM
Will you allow me to read my note of what the right hon. and learned Gentleman said? It was—He now said, and lie believed he was correct in saying, and he had since given an opinion, that there was nothing in the law to prevent the Pope from parcelling out the country into archbishoprics and bishoprics.
The ATTORNEY GENERAL
said, there must be some inaccuracy in the note of the right hon. Baronet. His right hon. and learned Friend had given no opinion on the subject which had not been signed by him (the Attorney General), and he had never signed any such opinion.
§ SIR JAMES GRAHAM
said, he did not know that the right hon. and learned Master of the Rolls alluded to any written opinion; what he asserted was, that those words were read in that House.
The ATTORNEY GENERAL
said, he understood the right hon. Gentleman to speak of an opinion given by his right hon. and learned Friend in his professional capacity. But the best proof that there must be some mistake upon this point was the original Bill introduced by the Government, which Bill was drawn by his right hon. and learned Friend; and in the preamble to that Bill he recites—Whereas the attempt to establish, under colour of authority from the See of Rome or otherwise, such pretended sees, provinces, or 284 dioceses, is illegal and void, and the assumption of ecclesiastical titles in respect thereof is inconsistent with the rights intended to be protected by the said enactment; and whereas it is expedient to prohibit the assumption of such titles in respect of any places within the United Kingdom," &c.The right hon. Gentleman (Sir J. Graham) would thus see that his (the Attorney General's) right hon. and learned Friend (the Master of the Rolls) could not have used the language which it appeared he was supposed to have done. But to pass from that to the general argument of the right hon. Baronet, almost all the points that had been urged by him had been previously raised in the course of this discussion; and, as far as they were capable of being answered, they had been answered to the general satisfaction of the House—["Oh, oh!"]—although, perhaps, not to the satisfaction of all the hon. Gentlemen opposite. With respect to the second part of the clause, the right hon. Baronet contended that it enacted a new law. Now, he denied that altogether. As he had before stated, it did nothing more than declare the law which was contained in the recitals of the preamble and the enactment of the first clause. he had before explained the reason why the Government thought it right to yield to the wishes of the hon. and learned Member for Midhurst (Mr Walpole), and consent to the insertion of this clause, because they conceived it carried the matter no further than the preamble, and the second clause did; but that it did amount to a more solemn and emphatic declaration on the part of this House that the attempt on the part of the Pope was contrary to the law and constitution of this kingdom. Looking at the Bill with a dispassionate eye, could anybody doubt that, if the recitals in the preamble were correct, this clause must be correct also? The preamble recites that—Whereas divers of Her Majesty's Roman Catholic subjects have assumed to themselves the titles of archbishop and bishops of a pretended province, and of pretended sees or dioceses within the United Kingdom, under colour of an alleged authority given to them for that purpose by a certain Brief, Rescript, or Letters Apostolical from the See of Rome, purporting to have been given at Rome on the 29th of September, 1850; and whereas it may be doubted whether the recited enactment extends to the assumption of the title of archbishop or bishop of a pretended province or diocese, or archbishop or bishop of a city, place, or territory, or dean of any pretended deanery in England or Ireland, not being the see, province, or diocese of any archbishop or bishop, or deanery of any dean recognised by law; but the attempt to establish, under colour of autho- 285 rity from the See of Rome or otherwise, such pretended sees, provinces, or dioceses, or deaneries, is illegal and void.The clause was simply declaratory, and, if issue were joined with him on that point, he was prepared to maintain that no foreign Power, whoever he might be, has the right to confer territorial titles in this kingdom without the consent of the Crown. Now, during this debate the hon. Member for Athlone (Mr. Keogh), and other hon. and learned Members, had put a number of questions to him (Sir J. Graham) which he trusted he had always answered with perfect good humour; and, however prolonged this warfare might be, he hoped it would be continued in a friendly and amicable spirit. But he wished to ask them this question. Did they deny, in point of law, the recitals of that Bill? Having said in the recital that it was illegal to establish archbishoprics and bishoprics, and having said that a Rescript had been carried into effect by the Pope, under which titles which were illegal had been assumed by Her Majesty's Catholic subjects; surely, the deduction to be drawn from both premises was this, that if it is illegal for the Pope to exercise this authority within the realm of England, surely it follows that the Rescript is void; and if so, that any power or authority derived from that Rescript must of necessity be void also. That first clause, therefore, simply declared the law. But the right hon. Baronet argued that the enactment of that clause would be attended with considerable inconvenience and mischievous consequences to the Roman Catholic clergy of Ireland in the exercise of their religious functions. But at the present time no one could say that Rescripts from the Pope appointing to archbishoprics and bishoprics in Ireland, with territorial titles derived from provinces and dioceses, were legal. Whatever might have been the intention of Sir Robert Peel's Government in 1844, it did not repeal the Act of Elizabeth. It was repealed with respect to the penalties, but the offence was, in the most express terms, continued. And the Act of 10th George IV. in express terms declared that such titles assumed by ecclesiastical dignitaries in Ireland should be void. Yet the archbishops and bishops in Ireland did appropriate to themselves the same titles as those which were assumed by the Established Church of this kingdom. The law was in that respect as much infringed now as it would be after the passing of this 286 Bill; and if it was true that those evil consequences would flow from the assumption of such titles under this Bill, it must be equally true that they would arise upon the 10th George IV. But had those mischiefs to which reference had been made, arisen? No. What marriage, he asked, had been annulled, what offspring, otherwise legitimate, had been bastardised in consequence of any one asserting that the ordination of priests by Roman Catholic bishops in Ireland was an illegal ordination? The thing had never been heard of; because, with respect to marriage, and the consequence of marriage, it was enough that there was a de facto priest exercising his functions in a chapel; and the ordination of the priest on the validity of the marriage never came into question. Although the 10th George IV. made the assumption of titles illegal, those consequences, on which so much stress had been laid, had never resulted from the assumption of titles. There could not be a better proof that this Bill would not work the mischiefs anticipated. It did no more than place the assumption of titles not appropriated by' the Protestant Church on the same footing as the 10th George IV. Its object was not to interfere with the full and perfect exercise of the spiritual functions of the Roman Catholic Church, but simply and solely to prevent a foreign Power from interfering and granting territorial titles within this realm. When the right hon. Baronet referred to what passed at the bar of the House of Lords, he did not draw a correct inference from what had taken place. Dr. Wiseman was called as a witness to speak as to the usages of the Roman Catholics with reference to marriage; and, to show that he had a competent knowledge on the subject, the questions put to him, to which reference had been made, did not involve a recognition of his jurisdiction; and he thought it was too much to say that, because the Lord Chancellor and the House of Lords did not interfere when these questions were put, they did recognise his jurisdiction. Dr. Wiseman was at that time vicar-apostolic, and he declared that he enjoyed, as vicar-apostolic, all the jurisdiction, ecclesiastical and spiritual, to which the right hon. Baronot referred. If that were so, could there be a more conclusive or satisfactory proof that this Rescript—this division of the territory of England into provinces and dioceses—this creation of a hierarchy with territorial titles was utterly 287 unnecessary, as much as it was an innovation of the sovereignty of the Queen? Everything which a Roman Catholic could claim for the exercise of his spiritual and ecclesiastical functions was contained in the jurisdiction and authority which Dr. Wiseman arrogated to himself in the answers given by him on that occasion. As to the statement that prosecutions might be instituted under the clause, that had been answered over and over again. The clause expressly referred to a particular Rescript, and to titles created under that Rescript, or any other for the same purpose. The Rescript was not a rescript for the establishment of episcopal authority within this realm. The clause related to Rescripts the purport of which was to create episcopal authority and episcopal dignitaries with territorial titles. Inasmuch as the clause related only to the jurisdiction and authority assumed under such Rescript, or derived from it, and contented itself with declaring the authority so assumed to be illegal and void, without any prohibitory enactment or declaration—relating only to acts done under it, and creating no offence—he was perfectly convinced that upon that clause no possibility would arise of instituting any prosecution. He would only further say, that inasmuch as the recitals in the preamble followed by the clause itself only declared the law, and did not create it, if any prosecutions for misdemeanour for assuming titles could be instituted with the clause, they could be equally instituted without it.
§ SIR JAMES GRAHAM
wished to set himself right on one point with respect to which the hon. and learned Gentleman the Attorney General entertained some doubt, namely, as to what fell from the right hon. and learned Master of the Rolls. In the debate on the 21st of March, reference was made to what had fallen from the Master of the Rolls on a former occasion, and a passage was quoted from that speech, in which he expressed an opinion that there was nothing in the law of England to prevent the Pope from parcelling out any portion of the United Kingdom into districts for Roman Catholic episcopal purposes. He said—On the debate on the Bill for establishing Diplomatic Relations with Home, he resisted an Amendment, which was proposed by the then hon. Member for Lambeth, and said that, as the law stood, the Pope could parcel out the country into bishopries and archbishoprics; that it the House introduced the Amendment which prohibited dealing with spiritual matters, the Pope would still 288 be able so to divide the country, and there would be nothing to prevent him; and that the only mode of preventing him was by establishing diplomatic relations with him.The right hon. and learned Master of the Rolls then went on to say—That was to say, he deprecated such a measure, and was desirous that the House should pass a Bill which would enable the Government to take such stops as would prevent it.Namely, intercourse with Rome. He then went on to say—That was entirely in accordance with what he now said, and he believed he was correct in saying it, and had since given an opinion that there was nothing in the law to prevent the Pope from parcelling out the country into archbishoprics and bishopries; that there was a law to prevent the introduction of bulls, but there was no law to prevent him from parcelling out the country."—[3 Hansard, cxv. 417.]The hon. and learned Gentleman the Attorney General said, that Dr. Wiseman, at the bar of the House of Lords, avowed that he was vicar-apostolic, and that he enjoyed all the functions and powers of bishop with reference to ordination and marriage. Now, he begged the Committee to recollect that the only difference between vicars-apostolic with districts assigned them, and bishops with dioceses assigned to them, was this—that vicars-apostolic, held directly from the Pope, without any intervention of any secondary authority, and were the mere creatures of his will and caprice; that the bishops enjoyed the same power, neither more nor less, but with this distinction, that they were one degree further removed from the power of that foreign potentate, the Pope of Rome. They were subject to the canon law, and were not so dependent on a foreign potentate as the vicars-apostolic.
§ MR. MORE O'FERRALL
feared that when courts of justice came to interpret such a measure as the present they would have no regard to the speeches and the explanations of hon. Members regarding it, but would proceed to interpret according to their own views of its provisions. The legal opinions expressed on the measure in that House had been very conflicting and very unsatisfactory. The hon. and learned Gentleman the Attorney General had said that the present measure if passed into law would do nothing more than confirm the law as it already stood. He begged, however, the Committee to recollect that when the prohibitory clauses of the Act of 1829 had been passed, it was solely to meet the views of the then King George IV., and there had been no intention on the part of 289 the Government that they should ever be enforced. The Charitable Bequests Act had been received with gratitude by the Irish people; and he believed that it was more the misfortune than the fault of Government that it had not been made more fully satisfactory. The hon. and learned Attorney General had argued that because the clauses in the Act of 1829 had been inoperative, that this Bill would be inoperative also. That was a matter which rested entirely with the Government; and he would ask the Roman Catholic Members for Ireland not to be dependent on the will of any Government in a question of this sort. It had been stated in that House that the Irish Members were under the screw of the bishops, and voted as they pleased. Now, he utterly and entirely denied such an imputation. If those who made that imputation believed it to be true, why did they admit men to that House who were acting under the influence of those over whom prosecutions might be hanging? This Bill conferred the worst of all power—the power of interfering with conscience and feeling. After being associated for nearly twenty years with the Members of the Government, he never believed the moment would arrive when upon any question he could refuse them his confidence. He admitted they might have been placed in a situation of some difficulty. But he did not complain so much of legislation as the manner in which it had been introduced. The proper way of performing such a duty was not by taking up a pen and writing a hasty letter, but by deep and mature reflection. Statements had been made by the noble Lord at the head of the Government, not only in his celebrated letter to the Bishop of Durham, but also in the course of this debate, which must be painfully felt by every Roman Catholic, and particularly by those who had bad the honour to serve Her Majesty. He did not know what had induced the noble Lord to change his opinion as to the persons professing that religion. The noble Lord in 1845 held opinions which he did not now entertain. It was always a painful thing to change an opinion, and he felt it deeply painful to withdraw that confidence which personally and politically he had always entertained for the noble Lord.
§ MR. HATCHELL
, having been requested by the right hon. Baronet (Sir James Graham) to express his opinion as to the clause now under discussion, willingly accepted the invitation, and would state what 290 he conceived to be the existing law of Ireland upon this subject, and then call the attention of the Committee to the provisions of the clause with the view of ascertaining whether it did anything more or less, than re-enact (if he might use the term) the law as it had hitherto existed. The proceedings of the Court of Rome were dealt with by the statute of Richard II., of which they had already heard so much, that he would not take up the time of the House by more than alluding to it. In the 13th of Elizabeth an Act was passed regarding rescripts from the Court of Rome, which, it was admitted, did not extend to Ireland. But, previous to that, in the second year of the reign of Elizabeth, an Act of Parliament was passed for Ireland in every respect as coercive, and having the same operation. Therefore, with respect to appointments made from the Court of Rome as to bishops and archbishops in Ireland, they wore manifestly affected by the two statutes. It was admitted that the Act of Richard II. was still the law of the land; but from its obsoleteness, and the penal character of its enactments, it was considered that, in the present day, it could not be called into operation. It had been said that the Act of Elizabeth, with respect to Ireland, had ceased to exist. That was quite a mistake. The law was still in existence and in operation, the penalties only having been remitted. Had anything occurred in Ireland previous to the Act of 1829 to alter or change that law? Nothing; and although the public feeling in Ireland showed that, with respect to the prelates of the Roman Catholic Church, little jealousy was entertained as to the assumption of those titles, there could be no doubt that Roman Catholic bishops or archbishops having territorial titles were not recognised by law in Ireland. Although they might be addressed by such titles as that of Archbishop of Dublin, or Bishop of Meath, by their own community, and tolerated in Ireland as a matter of courtesy, yet such titles had no foundation in law. In the year 1809, this point was expressly decided by Lord Chancellor Manners, in the case of the will of a Miss Power, in which the Roman Catholic Bishops of Cashel and Waterford were named, not only by their ecclesiastical titles, but by their baptismal names. The Lord Chancellor said, "With respect to the bequest, the law of Ireland does not recognise any such character as Roman Catholic Archbishop of 291 Cashel, or Roman Catholic Bishop of Waterford. The bequest to them and their successors in that character cannot be supported." In 1829 the Act was passed which had been the subject of so much discussion. Up to that hour the law of the non-recognition of Roman Catholic bishops having territorial titles was well known, and by that Act it was fully established. And why did he call the attention of the Committee to this fact? To meet the question which had been raised, that now when the same law was re-enacted, the only addition was respecting the creation of new dioceses; but the restraint was the same, namely, that territorial titles should not be assumed. It was said, the effect of such restriction would be to disqualify the Roman Catholic bishops from exercising spiritual jurisdiction in Ireland; to prevent them ordaining priests, because such ordination would be void, and all marriages celebrated by them would also be void. But if that would be the effect of the clause now, what was the case at that time? Had it had any such effect or operation for the last twenty years? The Act then passed was under the consideration of some of the most eminent men of the day; and was any declaration made that the introduction of such a clause would suspend or annihilate the power of the Roman Catholic clergy? Nothing of the kind. The Act of Parliament was accepted, with that condition attached to it; the Roman Catholic bishops succeeded each other, and the exercise of the Roman Catholic religion had continued free and uninterrupted. He now came to the Act of 1844 (the Charitable Bequests Act), in which it was contended there was something which set up a right in the bishops in Ireland to assume territorial titles. Now, on looking at the provisions of the statute, he believed the contrary to be the fact. If it had been the intention of the framers of the Act or of the Legislature to enable the Roman Catholic bishops to assume territorial titles for the purpose of exercising their religion in Ireland, why avoid an express declaration? He regarded the machinery of that Act was framed to avoid that very recognition. The 15th clause provided that any person might will or grant, not to the bishops, but to the Commissioners of Charitable Donations and Bequests—these persons being interposed between the donor and the objects of the trust, from the very apprehension that, if the clause had been worded differently, the claim to ter- 292 ritorial titles might have been set up. Now, the law being as he had stated, what did the preamble of the present Bill recite? It referred to the Rescript which deals with new dioceses and the assertion of new territorial titles, and then recited the law of 1829, and then it proposed to enact that anything done under such Rescript should be void. Now, the effect of that would be to declare that what had been the law, still continued to be the law, and that such acts as were forbidden under the old law, remained illegal under the new law. Then it was said that an indictment would lie upon this clause. He (Mr. Hatchell) did not believe that to be the case, because the clause merely declared certain things to be illegal and void, but did not prohibit anything expressly, and therefore an indictment would have to be brought under the statute of Richard II., or the statute of Elizabeth, which were prohibitory, and not under this Act, which only declared certain things done under the law as it existed at present to be illegal and void. Such he believed to be the state of the law on this subject as it applied to Ireland at the present time.
§ MR. MOORE
said, there were two objections brought against this clause by the right hon. Baronet the Member for Ripon, neither of which had yet received any answer. The first objection related to the ambiguity of the clause, and to the discrepancies in the interpretations of it which had been given by the right hon. and learned Master of the Rolls, and the hon. and learned Member for Midhurst (Mr. Walpole). The second objection was, that the clause, by re-declaring the law, gave it a new and additional force. These were two distinct and very serious objections, and demanded a clear explanation. The right hon. and learned Gentleman, the Attorney General for Ireland, had declared that the present Bill was a re-enacting of the law; and that, though it did exist at present, yet that it was not put in force because the law was obsolete. But this re-enactment would give efficiency to the law which did not exist before, and therefore the Roman Catholics would find themselves, if this Bill passed, in a worse position than they were in at present.
§ MR. WALPOLE
wished to say a few words in answer to what had fallen from the right hon. Baronet the Member for Ripon, who had introduced a discussion which had come upon them by surprise. If the right hon. Baronet had addressed 293 himself to the consideration of the clause, either in connexion with the Government preamble, or with the preamble which he intended to propose, he thought that there would be none of that ambiguity or discrepancy to which allusion had been made. It was with some reluctance that he offered any remarks on this clause after the discussion that had taken place; but he did so because advantage had been taken of certain words he had used, and a meaning assigned to them which he did not intend they should convey. If hon. Members well considered the clause, they would probably arrive at this conclusion, that it did not alter the law itself, but it declared an antecedent law which was now existing. The right hon. Baronet had taken two objections to the clause: first, he intimated that the introduction of a Bull or Rescript of the Pope into this country was not illegal, as the law at present stands; but, if it were so, then he asked what was the use of making the declaration, and why take the trouble of enacting a law to that effect? With regard to the first objection, he did not think any one could look to the terms of the statute of Richard II., and say that the Brief was not illegal. He had always contended, and he believed correctly, that the Brief in question was contrary to the law of nations, and contrary to the law of England. By the law of nations, according to Van Espen, the Pope had no power to introduce any Brief for the erection of a bishopric, or for any such purpose, into any country without the consent of the supreme authority of that country; and according to Schramm, who was only second to Van Espen as an authority, that principle was so sacred that even an independent Prince could not give it up or abandon it to the prejudice of his successor or of the State. If, then, the Brief was contrary to the law of nations, he wished to know why England, a Protestant country, was to be debarred declaring the illegality of such a Brief, interfering, as it did, with the authority of the civil power. It was not, however, only illegal by the law of nations, but it was also illegal by the law of this land. The right hon. Baronet had adverted to the statute of Richard II., and to the preamble which he had suggested, and asserted that the clause extended the law beyond the bounds within which it was limited at the present moment. But he wished to remind the right hon. Baronet what the statute 294 of Richard II. had expressly declared—a statute, be it remembered, as applicable to Ireland as it was to England. The statute declared that "if any purchase, or procure, or cause to be purchased, or procured, in the Court of Rome or elsewhere, any such translations, processes, and sentences of excommunications, bulls, instruments, or any other things whatsoever that touch the King, against him, his Crown and Regality, or his Realm, as aforesaid," they should be liable to a præmunire. Now, a legal interpretation had been given to that statute, to the effect that any Brief sent to this country conferring jurisdiction, even the jurisdiction of a vicar-apostolic, was contrary to it. The hon. and learned Member for Athlone the other night had adverted to this point, and had contended that the statute of Richard II. had reference to a period when the Roman Catholic religion was the religion established in this country, and that any declaration of the law making the Brief illegal could only have reference to the ministers of the Church as then established. But when the case of Lalor was decided, the Protestant faith was the established religion of the country. What was the form of the indictment in that case? The first count was—That he had received a Bull, or Brief, purchased or procured in the Court of Rome, which Bull, or Brief, did touch or concern the King's Crown and dignity Royal, containing a commission of authority from the Pope of Rome unto Richard Brady and David Magrah, to constitute a vicar-general for the See of Rome, by the name of the See Apostolic, in the several dioceses of Dublin, Kildare, and Ferns, within the kingdom of Ireland.The second count was—That by the pretext or colour of that Bull, or Brief, he was constituted vicar-general of the See of Rome, and took upon him the style and title of vicar-general in the said several dioceses.The third count was—That he did exercise ecclesiastical jurisdiction as vicar-general of the See of Rome, by instituting divers persons to benefices with cure of souls, by granting dispensations in causes matrimonial, by pronouncing sentences of divorce between divers married persons, and by doing all other acts and things pertaining to episcopal jurisdiction within the said several dioceses against our Sovereign Lord the King, his Crown, and dignity Royal, and in contempt of his Majesty and disherison of his Crown, and contrary to the form and effect of the statute.Lalor's case, therefore, completely established the principle that any Bull conferring jurisdiction within any one of the 295 established dioceses in England or Ireland was an offence within and against the statute of Richard II. (See Howell's State Trials, vol. ii. p. 534.) Such was the state of the law; and all they were now called on to declare was that any Brief brought into this country contrary to the statute of Richard II. was illegal and void—that was all which they were called on to declare by the first clause. It was said, however, that the Brief was one which related only to the spiritual functions of the Roman Catholic Church. Hon. Members who made that assertion must have forgotten the terms of the Brief. Not one word was said in the Brief relative solely to the spiritual wants of Roman Catholics. On the contrary, the Pope began by saying—Of the plentitude of our apostolic power we decree and ordain that in the kingdom of England, according to the common rules of the Church, there be restored the hierarchy of ordinary bishops, who shall take their titles from sees which we constitute in these our letters in the districts of the several vicars-apostolic.It then went on to reserve to the Pope and his successors the power of again dividing the said provinces, and of increasing or diminishing the number of dioceses. It then referred to the persons appointed or to be appointed to these sees as archbishops and bishops "of England," as if there were no archbishops and bishops in the country. It ignored the existence of our own Church—did not refer even to our own Queen—still less did it seek Her Majesty's consent or sanction to that which it attempted to do under the plea of religion, and of an alteration of the organisation of the Romish Church for purely spiritual purposes. It next went on to state—It will for the future be solely competent for the archbishops and bishops of England to distinguish what things belong to the executive of the common ecclesiastical law, and what, according to the common discipline of the Church, are entrusted to the authority of the bishops.It then proceeded to declare that it should have full force and effect, and be inviolably observed, notwithstanding anything that was done to the contrary; notwithstanding all special enactments, whether issued in synodical, provincial, or universal councils; notwithstanding, also, all rights and privileges of the ancient sees of England. And, lastly, it decreed—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 296 these enactments, such attempt shall be null and void.Could such a Brief as that be allowed to come here without the House saying that it was an interference with the authority of the Crown, and, as such, that it ought to be prohibited? He had some reason to find fault with the right hon. Baronet the Member for Ripon, for not adverting to that part of the preamble which he had suggested, and which showed distinctly the effect of the clause in connection with the preamble. Why had not the right hon. Baronet taken the exact paragraph in his preamble which was the foundation of the clause in the Bill? The right hon. Baronet said that the clause had a larger application than to England. But the right hon. Baronet had not dealt fairly with the clause, and had misled the House as to its construction. The words of the preamble, upon which the clause rested, were these:—Whereas the Bishop of Rome, by a Brief purporting to be given at Rome, hath recently constituted within the Kingdom of England a hierarchy of bishops, named from sees, and with titles decreed from places belonging to the Crown of England—These words referred specifically to England, and, as far as the clause went, it was unjust to say that it had a larger latitude. The right hon. Baronet had adverted to another part of the preamble, and stated that it was more extensive than the Government preamble, and that it would apply to Ireland as well as to England. He agreed with the right hon. Baronet that that part of the preamble would extend to Ireland; but then it would be with reference to Briefs not merely similar, but identical with the Briefs prohibited by the statute of Richard II. With regard to the second objection, the right hon. Baronet seemed to think that if this Brief were already illegal, there could be no good in making the declaration, and that now by doing so, we should only revive an old obsolete and dormant statute. But when the right hon. Baronet talked of a statute being old and obsolete, it was not to be inferred, that it was therefore useless. He should draw a different conclusion. When statutes were found on the Statute-book, without having for a long period been put in force, the fair inference was that they had been practically operative; that those who might have been affected by them had thought it right to obey them; that, instead of being dormant, they had hitherto been obeyed; and therefore, in 297 his opinion, they ought to be revived the moment they found that persons had forgotten, or were attempting to evade, them. He believed if the law had not been left in so uncertain a state by their recent legislation—if the statute of Elizabeth, for instance, had not been repealed, they would never have heard a word of this Papal Brief. The statute, however, had been repealed, and in so clumsy a manner as to lead those who had imported the Brief to believe that in doing so there was no law which could touch them. For that reason it was necessary to declare it, and to show them that there was a law. The right hon. Baronet had alluded to the announcement of the noble Lord as to the necessity of ulterior measures. Now, instead of complaining of that announcement, he regarded it in the spirit in which it was made—as one which all true and loyal subjects of the country would sincerely rejoice at for more reasons than one. He had said, "in the spirit in which it was made," for hon. Members were always forgetting that the noble Lord had disclaimed all intention of interfering with the spiritual and religious functions of the Roman Catholics and their ministers. It was always assumed that spiritual functions were touched by the Bill; but that was not the case except so far as they flowed from, or were inherent in, the illegal titles which were sought to be assumed. He supported the clauses for four reasons: First, because after such a Brief it was right the Commons of England should uphold the lawful authority of the Crown against the unlawful usurpation of authority which had been set up by the Pope. Secondly, because the declaration of illegality of this Papal Brief was a national protest in the face of the world that we would not allow any such usurpation or encroachment in this kingdom. Thirdly, because it was an assurance to the Protestants of this country that they intended to adhere to the great principle of the Reformation; or, as the Nonconformists expressed it in 1688, to stand by those who stood by the Protestant faith. Fourthly, because it was needed to protect Roman Catholics themselves, such Roman Catholics as Lord Beaumont, Lord Camoys, and the Duke of Norfolk, who found themselves placed in the dilemma that they must cither break with Rome, or forfeit their allegiance to their own Queen. That was their opinion, and therefore if this Brief remained uncondemned, it would show in us a want of foresight, a want of wisdom, or 298 a want of courage: a want of foresight, in not appreciating the evils that would result from it; a want of wisdom, if, seeing these evils, we did not meet them by timely legislation; or a want of courage, if, seeing these evils and not preventing' them, we allowed this Brief to obtain the silent sanction of time, and thereby gave encouragement to a repetition of the offence.
§ SIR JAMES GRAHAM
said, that however unwilling he might he again to trespass on the attention of the Committee, he felt that he could not remain silent under those strictures of his hon. and learned Friend the Member for Midhurst, by which, if it had not been charged, it had been at least insinuated, that he (Sir J. Graham) had attempted to mislead the Committee. He confessed that he was not familiar with the precise expressions in which Lord Beaumont, Lord Camoys, and the Duke of Norfolk were reported to have declared their disapprobation of the recent Rescript of the Pope, nor was he compelled to say how far those expressions might be reasonably susceptible of the interpretation sought to be put upon them by his hon. and learned Friend; but when his hon. and learned Friend undertook the delicate and difficult task of legislating for millions who were of the same religious persuasion as those noble personages, he would take leave to remind him of a well-known saying of Mr. Burke's that the members of one sect were the worst possible judges of what was necessary for the free and conscientious exercise of the religion of those who were attached to another sect. The hon. and learned Gentleman had expressed a hope that the Committee would not be deterred by any want of courage from giving its assent to this measure. Want of courage was the very last charge to which the promoters of this measure could be said to be liable, for he regarded it as little short of a declaration of war against 8,000,000 of Her Majesty's subjects. He did not profess to be learned in the law, hut he had endeavoured to make himself master of this Bill, and though he had read the preamble again and again with the deepest attention, he still found it impossible to reconcile it with the subsequent provisions, or, indeed, to make it consistent with itself. The preamble, as originally framed by the Government, seemed to indicate an intention that the Bill should be limited to England; but subsequent words introduced by the hon. and learned Member for Midhurst greatly extended the scope of the original 299 words, and went very far beyond the primary intention of the preamble. The words "all such Rescripts" did not limit the operation of the Bill to the particular Papal instrument whereby a hierarchy had been created in England, but expressly provided that similar Rescripts, in whatever districts of the United Kingdom—and, of course, therefore in Ireland—should also be included. That Ireland could not by possibility escape from the operation of the measure, was obvious, and the fact had been virtually admitted by the right hon. and learned Gentleman the Attorney General for Ireland who had addressed the Committee so perspicuously, and in a manner so worthy of the office he filled. He feared that the discussions on this ill-fated measure would be interminable, for the further they proceeded, the more inextricably did they appear to be involved in embarrassment and perplexity. The hon. and learned Member for Midhurst had said that the opponents of the Bill begged the whole question when they assumed that it would interfere with the spiritual functions of the Roman Catholic bishops; but he, on the other hand, must observe that the hon. and learned Gentleman begged the question quite as much on the other side in assuming that the new hierarchy would interfere with the regality of the Crown. It was idle to pretend that the Bill would do nothing more than declare the law as the law had been settled by the Act of Richard II. It would do no such thing. It would create a new law. The statute of Richard II. was passed in Catholic times, when the Catholic religion was the established religion of this country, and the reason why it was passed was simply this, that the Pope of Rome, in the exercise of the powers which were allowed by the constitutional authorities of England at that time, had made an invasion on the regality of the Crown, by interfering with the temporalities of the bishoprics. He had exceeded his jurisdiction. He had travelled from the forum, conscienti— into the forum judicii, and therefore the statute of premunire was passed; but that statute did not attempt to interfere with the right of the Pope to arrange the spiritualities of the bishoprics, after whatever fashion might appear most expedient to him. Now, what the Catholics at present maintained was, that the recent act of the Pope being an act which merely touched spiritualities, the statute of Richard II. had no application to it; and that the Bill before the House could 300 be regarded in no other light than that of a new and unheard-of aggression on their liberty of conscience. The hon. and learned Gentleman (Mr. Walpole) would have it that the appointment of bishops by the Pope was against the civil law of Europe; but this was a mistake. The civil law of Europe acknowledged that the Pope was the supreme head of the Roman Catholic Church, throughout the whole Continent of Europe, and that episcopal appointments, so far as spiritualities were concerned, were, for the purposes of the Catholic Church, vested in him. It was only when the Roman Catholic religion was the religion of the country, that the assent of the Crown was required to sanction the appointment of an archbishop or a bishop; and as the Crown, neither by the statute law nor the common law, had any right to interfere with the spiritual jurisdiction of the authority of the Pope with regard to a religion unendowed, he contended that it was begging the question to refer to the statute of Richard II., and say that by this proceeding of the Pope the regality of the Crown was affected. The Roman Catholic religion being unendowed, he contended there was no excess whatever of the spiritual limit of the Pope's jurisdiction. The hon. and learned Gentleman (Mr. Walpole) said he wished the whole matter to be set forth in good old Saxon simplicity. If so, the hon. and learned Gentleman's preamble ought to be framed thus:—"Whereas it is expedient, on account of public clamour, to prevent the spread of Popery throughout this realm, and to check the full and free exercise of the Pope's spiritual authority in the same, be it enacted," and so on. One observation more, which he thought it necessary to make, with respect to the clause under their consideration, and that was with respect to the power given by the Bill to indict an offender under the clause in question. On that point he did not think the right hon. and learned Attorney General for Ireland had made up his mind that the clause would enable him to proceed with an indictment if a Rescript similar to that which had been introduced into England were sent to Ireland.
§ SIR JAMES GRAHAM
With all possible respect for the right hon. Gentleman, he would, nevertheless, express his deliberate conviction that all parties acting under 301 an instrument declared by this clause to be illegal, would be indictable under the clause. As to the power of indictment under the Bill, it was clear to him that its range would be very extensive. The first section expressly declared that not only the Brief, Rescript, or Letters Apostolical, but 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." It followed, therefore, that every attempt to exercise such jurisdiction or authority, every act intended to promote or assist it, must be also unlawful, for when a statute positively declared a thing unlawful, it rendered everything which was done for its support or encouragement unlawful also. Quando aliquid prohibitur, prohibitur et omne per quod devenitur ad illud, said Lord Coke in his 3rd Inst., 158. Every such act or attempt must be a contempt of the statute; and it was laid down by Hawkins, in his Pleas of the Crown, vol. i., chap. 22, that "every con-tempt of a statute in indictable, if no other punishment is limited." So again, Lord Chief Baron Comyn, in his Digest (tit. "Indictment"), said, "So for anything generally prohibited by statute, if it be done, an indictment lies for it;" that as "an attempt to commit a misdemeanour (and undoubtedly the violation of a statute which is prohibitory, as it is if it declares a thing unlawful, is a misdemeanour) had been decided in many cases to be itself a misdoameanour." That the Bill in this case was prohibitory, and intended by the Legislature so to be, there could be no doubt, the preamble, among other things, expressly said, "It is expedient to prohibit the assumption of such titles in respect of any places within the United Kingdom," &c.; "be it therefore enacted," &c, and then came the first clause. The hon. and learned Attorney General just now had suggested that in the opinion he (Sir J. Graham) had put forward in his previous speech he had been instructed by some one; but such was not the case as to that speech; but in what he now cited he certainly had been advised by a gentleman most competent to give advice on the subject. He would only add that the more he considered this clause, the more he was convinced it was full of danger.
§ LORD JOHN RUSSELL
Sir, when the right hon. Gentleman commenced his first speech, he said this clause was full of danger, and was calculated to excite alarm; 302 and at the close of his second speech he said, that the more he considered the clause, the more he was convinced that it was so calculated to create alarm. I also must confess that the language which has been used in the course of this debate is full of danger and alarm. That language is calculated to excite fear and apprehension amongst the Roman Catholics of this country, for which no ground whatever exists. Such language has been used by many persons during the debate, who did not occupy the position of the right hon. Baronet, and from them it fell comparatively harmless; but when such language as that the present Bill is a declaration of war against 8,000,000 of Her Majesty's subjects is used by one in the high station of the right hon. Baronet, it receives greater strength and importance, and on that account it must be considered dangerous. Then there is another cause of alarm which has been introduced by the right hon. Gentleman. In his speech the right hon. Baronet, quoting from Mr. Burke, said that persons of one sect of religion are the worst judges of the religion of another sect from which they differed. According, therefore, to the dictum of the right hon. Gentleman, this then is a question on which there exists a great difference of opinion; and where such a difference exists men are not to exercise an independent judgment, lest it might be supposed that we are interfering with the exercise of the Roman Catholic religion. Now, upon that subject there has been a general concurrence on all sides of the House. We who maintain the dignity of the Crown and the national independence by introducing this Bill, and those who oppose it, are equally agreed that there should be no interference with the exercise of the Roman Catholic religion. On that point at least there is unanimity amongst us. On the other side, it is fair to admit that those who oppose the Bill have said, "We claim only the full exercise of the Roman Catholic religion, and the organisation necessary to that exercise; we do not claim any power or jurisdiction to overbear that which properly belongs to the rights and prerogatives of the Crown of this realm." Now then, Sir, the question arises, whether the Rescript of the Pope does in any way interfere with the sovereignty of this country, or whether it is entirely confined to the spiritualities of the Roman Catholic Church. With respect to this question, the right hon. Gentleman tells me that we are incompetent to judge—that it belongs 303 to the Roman Catholics themselves to decide—and that because we differ from the Roman Catholics in religious matters, we are not to determine with respect to matters affecting a different sect—that, in short, the whole question must be settled by the Roman Catholics. Now, Sir, within the last six months we have had pretty full evidence of the manner in which they will decide the question if left entirely to them; for they have said that the Rescript is only applicable to spiritualities, and that they have adopted the Rescript. [Cries of "No, no!"] Well, then, before I sit down, I shall put it in another way. I am not at all satisfied with the declaration of hon. Gentlemen opposite. The hon. Gentlemen who have contradicted me mean, I presume to say, that it is not a question for the Pope to decide, but one for the Roman Catholics of this country themselves. Now, if this be so, we, the protestants of this great empire, have not the least power to interfere in the matter, although we may think that the Rescript encroaches on the temporal power of the Crown, and we are to be debarred from defending what our Roman Catholic ancestors said were the inherent rights of the English Crown. I am not sure, Sir, that the document which has issued from Rome, and which is the ground of debate, may not be, as the organs of the Court of Rome assert, in conformity with the principle that whatever is done by Rome is "unchanging and unchangeable." Now, can we submit to the assertion of such a principle as that? Are we to give up the right of questioning for ourselves the nature of this document, and whether the rights of the Crown or the national liberty may not be invaded by it? Are we to allow that all decrees from Rome, however humiliating, are to be submitted to, and the humiliation is to be borne, if the Roman Catholics say that there is no infringement on the temporalities and jurisdiction belonging to the Crown. I think and hope that the House of Commons will not submit to this humiliation. The question is not a mere question of argument, although I am quite willing to listen to any arguments that may be adduced. I shall listen to all arguments, even from those who wish to see the office of Archbishop of Canterbury blotted out; but I do think we cannot divest ourselves of the duty which we owe to ourselves and the country to decide for ourselves what are the rights of the Crown and the independence of the nation. I 304 cannot, for myself at least, consent to forego this privilege. Well, then, what is the alternative which is left to us? We are told by the right hon. Gentleman opposite (Sir James Graham) that whatever is urged by the Roman Catholics as necessary to their religion—whatever may be called spiritual by them—whatever may have been called spiritual in the fifteenth or sixteenth centuries, and whatever is to issue from Rome, should not be judged of by us; and if we do not do this, he says, that we declare war against 8,000,000 of our Roman Catholic fellow-subjects. That I maintain, is a most alarming declaration. There are two dangers which threaten us if this declaration is to have effect; and I, for my part, shall endeavour to steer as steadily as possible between those dangers. I say that there has been an interference on the part of a foreign Power—an encroachment and an aggression on the rights of the Crown and the privileges of the people of this country, which we cannot submit to; but while we repel the aggression, we need not and do not wish to interfere with the Roman Catholic religion. I believe that can be done, and I believe that the Bill before the Committee is calculated to do so. The Bill has been much misrepresented. In one part of the kingdom it has been thought not sufficiently stringent, while in Ireland it has been thought too much so, and is considered to go far beyond the legitimate exercise of the powers of legislation; but I do not think there is ground for complaint on the one part or the other. At all events we are free to exercise our own judgment in the matter, and we ought not to surrender our right to do so, as has been proposed by the right hon. Gentleman the Member for Ripon. We are not to surrender our privileges at the discretion or according to the opinion of any Roman Catholic doctor or lawyer; and I trust this House will have that respect for its own dignity, not to abandon our own privileges or the rights of the Crown. I cannot conclude without alluding to what fell from my right hon. Friend who has lately filled the office of Governor of Malta (Mr. M. O'Ferrall), and I take this opportunity of expressing my high respect for him. During the time he was Governor of Malta, he justified the selection which was made by the Crown to fill that important office; and the labours of the right hon. Gentleman in that island have been beneficial to the Crown, and most 305 honourable to himself. Under circumstances of great difficulty he justified the confidence placed in him, and dealt even-handed justice to all Her Majesty's subjects in that island. I cannot, therefore, but regret to hear the right hon. Gentleman say that I have lost his confidence by the line of conduct which I have pursued. But after fully considering the line which I have adopted, I cannot see that I have adopted a course which, as a Minister of the Crown and as a Member of Parliament, I was not bound to pursue; and I feel confident that a similar course would have been pursued by Ministers of the Crown and by Members of this House when the whole of the community was Roman Catholic. I considered that what would not be submitted to in Prussia, a Protestant country, and in Saxony, also a Protestant: country, should not be submitted to in this country; and I believe that in no other country would such an aggression have been attempted. In the course of these discussions, reference has been repeatedly made to what had been done in England before the Reformation was proposed. But there is a very remarkable Act that was; passed after the Reformation, when the Sovereign of this country induced the Parliament to attempt to reconcile this nation with Rome, and again to admit the jurisdiction and authority of Rome. That was at a period when, after the reign of Henry VIII. and Edward VI., one might have supposed that any concession would have I been made to the powers of Rome—that men heated by their contest with Protestants would have been ready to submit anything to them in conformity with the course that had been taken in restoring the ancient religion of the country; but in the very Act of Parliament which restored the authority of Rome, and which goes at I great length and with great detail into all the provisions of the Acts that had been I previously passed—in the Act which passed in the 1st and 2nd Philip and Mary, in the 8th cap,—our Roman Catholic ancestors, even at this time, when they were endeavouring to reconcile their nation to Rome, and repealing everything that had been done in Protestant reigns by Protestant Parliaments, still enacted, in admitting bulls into the country, that all bulls, dispensations, and documents obtained before the said twenty years, or at any time since, or that shall hereafter be obtained from the See of Rome, containing matter contrary or prejudicial to the authority, 306 dignity, or pre-eminence of the Crown, or contrary or prejudicial to the laws of this realm, should be annulled. In the 53rd section of that Act, it is likewise declared that nothing in the making or enforcing of the present statute, nor any thing or things, word or words, in the preamble or body of the Acts aforesaid, shall be considered to derogate, infringe, or take away any liberties, privileges, or prerogatives, authorities or jurisdictions, or any part or parcel of them, which have been enjoyed by the people of this realm. Now, I contend that this Rescript does contain matters contrary and prejudicial to the authority and dignity of this realm. Such was the spirit in which our ancestors, even at a time when the Roman Catholic religion was being restored, framed their Act of Parliament—such was the way in which they provided for the freedom of the English people, protected the liberty of the country, and maintained the pre-eminence of the Crown. And I desire no other and no greater spirit to be shown by the House of Commons of the present time, when by this Rescript of the Pope the rights, liberties, and privileges of the country are menaced, and the authority, dignity, and pre-eminence of the Crown, regal and imperial, invaded. And now, Sir, I come to the last alternative—Either that this Rescript is an unlawful one, which every lawyer who has spoken on the subject admits, or else you are to say that you are not to act upon the law with respect to this Rescript, and that you are to admit any Bulls or other documents from Rome, however debasing to the nation, insulting to the Crown, and in contempt of the Queen's authority. I consider the Re-script an interference with our feelings and independence; and the object of this I Bill is to chock that interference. It is not enough to tell me that it concerns I matters purely spiritual: you must ascertain how far the definition of spiritual affairs extends—you must look at what Papal decrees are—you must remember also that their object is to extend the Roman Catholic authority, so that it may exceed the authority of Parliament itself.
§ SIR JAMES GRAHAM
said, the noble Lord (Lord John Russell) had stated that that House ought not to be ruled by the opinions of Roman Catholic doctors and lawyers upon the point at issue. Now, he (Sir J. Graham) hoped there was no Member of that House more sincerely and warmly Protestant than himself. He was 307 not guided by the opinions either of Roman Catholic doctors or of Roman Catholic lawyers. He had expressed his own dispassionate judgment on the question. The question they had to consider was whether the Rescript did or did not come within the Act of Richard II. The noble Lord had also unintentionally misrepresented him upon one point. The noble Lord said, that, in quoting the doctrine of Mr. Burke, that one sect was a very indifferent judge of what was necessary for the free exercise of the religion of another sect, he (Sir J. Graham) had applied the remark generally to the question before the Committee. He had done nothing of the kind. The point to which he applied the doctrine was this: an hon. and learned Friend of his (Mr. Walpole) had said that it was necessary to legislate, in order to relieve the hardships under which the Duke of Norfolk, Lord Camoys, Lord Beaumont, and other members of the Roman Catholic faith, who were deemed recusants by their Church, might suffer; and he (Sir J. Graham) observed, that he considered it unnecessary for them, as Protestants, to legislate with a view to relieve the religious scruples of a certain number of persons.
§ MR. MORE O'FERRALL
said, that he had not wished to say anything offensive to the noble Lord at the head of the Government, for it would be most unpardonable in him to do so; but what he referred to was, that the noble Lord had written his letter, and gave no opportunity and no means for explanation, but had at once assumed that there was a determination on the part of the Pope to insult this country; and the noble Lord had also assumed that the Pope, having acted with that intention, what he had done was favourably received by the Roman Catholics of this country. He (Mr. M. O'Ferrall) spoke for himself and for his co-religionists when he said that any such act on the part of the Pope or any other Sovereign would be as strongly resisted by them as by any other persons in the empire. It was because he believed—he might say he knew—that the intention of his Holiness was not to do any such thing, that he regretted the course pursued by the noble Lord. He (Mr. M. O'Ferrall) admitted that the form of the Rescript and the Brief did contain expressions which, perused by Protestants who were not well read in these things, might have given offence. But he wished that hon. Gentlemen would 308 make themselves better acquainted with the form of these Rescripts, and then they would find that that which gave them so much offence was the form universally used on such occasions. He did not say either that the Pastoral of Cardinal Wiseman was that which he would have desired; but then, to attach blame to the Roman Catholics, and to make the whole of the Roman Catholics responsible for an official form, or for the manner in which Cardinal Wiseman expressed himself—matters with which they had nothing to do—was a very great injustice. How was the peace of Europe preserved but by friendly communications, and the ascertainment of the intentions of different Powers? When a document had been issued which was supposed to convey offence, nothing could be more natural than to ascertain whether that intention would he avowed, or if done in inadvertence, to have it disavowed. If the noble Lord at the head of the Government had pursued such a course in this case, instead of writing his letter to the Bishop of Durham, he (Mr. M. O'Ferrall) would answer for it that he never would have found it necessary to bring in such a Bill. England had expressed its dissent from the Church of Rome, and its great attachment to Protestantism. That was the strongest and most powerful declaration that could be made by a nation. They might as well try to put the ocean into a bottle as to confine the protest of a nation within the narrow limits of a miserable Act of Parliament. Why, he asked the noble Lord, did he assume that an offence was intended, when, in point of fact, no offence was meant? He would remind the noble Lord that he had acted differently in the case of Spain, when their ambassador was ignominiously expelled from that country. They then made no declaration of war; and by temperance and time a satisfactory explanation was at length afforded. As Ireland was circumstanced, he thought the noble Lord should have taken a different course to what he bad done. As regarded that country, the labours of the noble Lord for the last thirty years had been entirely destroyed; the generosity of the people of this country had been thrown away, and for years there would be nothing but contention between the two sects of religion. If the noble Lord had approached the question with different feelings, and brought before that House a declaration that neither Catholic 309 nor Protestant would allow any Power, spiritual or temporal, to interfere with the liberties of the country, that declaration would have been assented to by every Roman Catholic. He trusted it was not too late even now to consider the question in this spirit. If any hon. Gentleman had the ability to embody such a feeling as he was then expressing, in an Act of Parliament, he felt assured that little delay would take place in passing it through that House. To such a Bill the Roman Catholics would offer no objection; but their objection to the present Bill was its uncertainty. With it they would not have religious liberty, for the interpretation of the law would be with whomsoever might be the Minister of the Crown.
§ MR. HOBHOUSE
said, that all those who, like himself, supported the view of the case taken by the right hon. Baronet the Member for Ripon (Sir J. Graham), were not disposed to say that whatever the Pope or the Roman Catholic authorities declared to be a spiritual matter was a spiritual matter, but that they were, on the contrary, prepared to judge of each particular case on its own merits. All that he contended for was that this act of the Pope was not an interference with the temporal jurisdiction of the Crown. If the Roman Catholic authorities should ever press on the sovereign authority of the Crown of England, he trusted he should be the first man to resist any such encroachment; but he was not prepared to treat every thing as an encroachment on the Royal prerogative which public clamour declared to be so. He ventured to predict that this question would be looked at in a very different manner by a great part of the country before many years had elapsed; and he should like then to hear the speeches that would be delivered by the hon. and learned Member for Midhurst (Mr. Walpole), and those who had endeavoured to arouse the animosities of the sects against the Roman Catholic religion. He ventured to say, with the right hon. Baronet the Member for Ripon, that the real question at issue was materially affected by the times in which we lived, and that the arguments which would have been applicable in the time of Richard II. were not so now. When the only spiritual jurisdiction in this country was that of the Pope, it might be very well for the authority of the Crown to entertain some jealousy of the authority of the Pope; but the Roman Catholic religion was not now the religion of the State; that religion was 310 not now endowed, and was altogether different from what it was in the time of Richard II. When there was but one faith and one spiritual jurisdiction, it might be very well worth while to entertain a jealous feeling with regard to the jurisdiction of the Pope; but when the Roman Catholics stood exactly on the same footing as Dissenters, all power over them was, in right and in reason, taken out of the hands of the Crown. ["Hear, hear!" "Divide, divide."] That was a doctrine which he would maintain in spite of any interruption that he might meet with when he rose to address the Committee. He considered that he should be perfectly justified in speaking for an hour if he chose, for the hon. and learned Member for Midhurst had delivered what was, to all intents and purposes, a speech on the second reading of the Bill; and his example had been followed by the noble Lord (Lord John Russell) and another right hon. Gentleman near him. When he (Mr. Hobhouse) was gravely told that the Bill created no new offence, he would beg to ask whether it did not embrace Scotland, whereas the Roman Catholic Relief Act was expressly confined to England and Ireland? Now, why should Scotland be inserted, seeing that the Presbyterian authorities (or at least the old ones) looked upon a bishop, whether Romish or not, as something like Antichrist? He begged, therefore, to recommend the omission of the words "United Kingdom" to the consideration of the noble Lord. He considered that the Pope had a perfect right to pursue the course he had done; and to deny it was in reality to say that a gentleman should not regulate his conscience as he pleased—a thing that he was certainly not prepared to hear in the latter part of the nineteenth century. He could not help thinking that many of those foreigners who had come here to admire the wealth, civilisation, and luxury of this great metropolis and of this country, must be astounded to find that House legislating, at this time of day, upon matters of religion. He implored those hon. Gentlemen who seemed to be so much afraid of the Pope, to lay aside their fears. He believed that those fears were not altogether genuine. He was sadly afraid the constituencies of this country had a good deal to do with these fears. If they really did entertain such strong fears on this matter, how was it that for the last eight or nine months a Cardinal Archbishop of Westminster had been exercising his ecclesiastical powers in 311 this kingdom without the slightest danger having been inflicted upon the Established Church, as far as he (Mr. Hobhouse) could perceive? Instead of injuring, he believed that the establishment of the Papal hierarchy had benefited the Established Church, for he found that subscriptions to the amount of 100,000l. had recently poured in for the purpose of defending the Church of England against the assaults of the Church of Rome. Being an advocate for free trade in commerce, he thought that we ought also to have free trade in religion. He believed that religious rivalry tended to increase our love of religion, and make us more zealous in the diffusion of our religious opinions. The Dissenters, as well as the Church of England, ought to feel much indebted to the recent proceedings on the part of the Pope. They would all do well to take a loaf out of the book of the Roman Catholics, and become more earnest in the diffusion of that religion which they believed to be true. This clause appeared to him to rest upon a false ground; he did not think that it was just or proper to declare that any spiritual authority conferred by the Pope should be interfered with by our legislation. If Gentlemen chose to receive their religion from Rome, what right had that House to interfere with their choice? People had a right to take their religion, their astronomy, or geology from whatever teacher they pleased. Whilst the Pope confined himself to spiritual matters, he (Mr. Hobhouse) could; not help looking upon the creation of an Archbishop of Westminster by the Pope as a harmless act, which should have given offence to no party. He would not be induced by public clamour, nor by fears either real or feigned, to offer the slightest opposition to the Pope's authority over the Roman Catholic people of this kingdom.
§ MR. GRATTAN
hoped, even at that the eleventh hour, it was not too late to say a word or two of advice to Her Majesty's Ministers on this subject. He trusted that the very able, argumentative, and, he should call it, irresistible speech of the right hon. Baronet the Member for Ripon (Sir James Graham) had produced some effect upon Her Majesty's Government. He also hoped that the speech of his right hon. Friend the Member for Longford, and late Governor of Malta, had produced still greater effect upon Her Majesty's Ministers. The style, tone, temper, and forbearing remarks of that right hon. Gentleman ought to make a sensible im- 312 pression upon them. Were Her Majesty's Ministers prepared to risk the peace and tranquillity of Ireland by passing this measure? Were they prepared to undertake the responsibility of enforcing a measure through that House which would subject Ireland to a repetition of the dreadful calamities which she had endured from time to time during the last century, by religious feuds? He would beg to tell that House that Ireland would not submit to this measure. The Irish people were determined that the peace and tranquillity of their country should not be disturbed by these factious proceedings, and by this absurd Bill. If this Bill were attempted to be put in force in Ireland the noble Lord (Lord John Russell) would be the greatest recruiting serjeant for repeal that had yet appeared. If the Government attempted to pass this Bill, they would rue the day of its adoption to the last day of their political existence
§ MR. REYNOLDS
said, that the old adage about doctors disagreeing, had been fully borne out by the lawyers during the discussion on this Bill. The hon. and learned Attorney General and Solicitor General had declared that the first clause extended to Ireland; but the hon. and learned Member for Midhurst had just said the contrary. An experienced statesman—one to whose judgment and wisdom the public of all classes appealed with confidence—he meant the right hon. Baronet the Member for Ripon (Sir J. Graham) had made the matter so perfectly clear as to have ended the religious controversy; and he thanked him for doing so. Notwithstanding this, the lawyers on the opposite side stood up and attempted to answer him; but they failed to convince any one, even of the humblest understanding. The Queen's Attorney General and Solicitor General appeared to him (Mr. Reynolds) to come up to the character of the Village Schoolmaster drawn by Goldsmith:—In arguing, too, the parson own'd his skill,For e'en though vanquish'd he could argue still.So could the Queen's Attorney and Solicitor General. Even the noble Lord (Lord John Russell), though affecting to reply to the right hon. Baronet, had said nothing new, but had taken care to steer clear of all arguments, falling back upon his memorable speech when he asked leave to introduce this Bill, and quoted from the legislation of what he termed his Catholic ancestors; but he had himself relapsed 313 into the errors, both political and religious, of the reign of Henry VIII., and he found no better precedent for his legislation than the corrupt principles and practice of that reign. The noble Lord said this Bill was only meant to declare the law. Why did he introduce it at all? The noble Lord's answer, because the Pope had issued a certain Bull or Rescript. The inference was, that but for that the Bill would not have been introduced. Why, then, should the Catholics of Scotland and England have their religious liberties abridged in consequence? Why did the noble Lord reject the provisoes that had been suggested, and why not use language that could not be misunderstood, instead of leaving doubtful expressions to the interpretation of Irish Judges and Irish juries? He would remind the Committee of what had occurred on the State Trials of Daniel O'Connell and others some years ago, before a full Court of the Queen's Bench and a Special Jury. They were found guilty of violating the law on counts which the Court declared to be good. They were sentenced and imprisoned. They appealed to the House of Lords; and all the law Lords of England declared the counts bad, reversed the judgment, and liberated the defendants after some six months' imprisonment. With this specimen of legal learning, would the noble Lord dare to pass a Bill authorising any common informer to indict a Roman Catholic bishop, the language of which Bill was even ambiguous to Members of that House, and was differently interpreted by the hon. and learned Member for Midhurst, and by the right hon. and learned Attorney General and Solicitor General? The right hon. and learned Attorney General for Ireland had at length favoured the Committee with his views on the Bill; and it was not at all impossible that that right hon. and learned Gentleman might be elevated to the Bench, and might have to try some Roman Catholic bishop under this clause, should it ever pass, which he sincerely hoped would not be the case. He should like to have the opinion of the right hon. and learned Attorney General on this point: Suppose the Roman Catholic Archbishop of Dublin to die, as he must some time or other, and that three names were chosen by the priests, and sent to Rome for the Pope to select one, would the Papal Bull or Rescript appointing one of those three not be a Bull or Rescript within the meaning of this Bill, and consequently illegal? He should repeat this question till 314 it was fully answered. What had the Roman Catholics of Ireland done to merit the insult offered them by this Bill? The noble Lord must answer—nothing. The Roman Catholic bishops and archbishops had preserved the peace: they had reconciled the people to starvation on one side, and misgovernment on the other; and they had: the preserved the peace at the sacrifice of their incomes. It had been stated by the ton. and learned Member for Ennis-killen (Mr. Whiteside) that the Protestants of Ireland amounted to 2,500,000. Referring to the census of 1841, and the speech of the noble Lord (Lord John Russell), in 1835, on the Church Temporalities Bill, he found their number was then estimated at 700,000. But, said the hon. and learned Member (Mr. Whiteside), because the Roman Catholic population had diminished by evictions, emigration, and starvation, by a large number, the Protestant population must therefore have increased. This he denied; he believed the Protestant population had also decreased from the same causes. The noble Lord (Lord J. Russell) had stated that night that he would proceed with the Jews' Bill as soon as the Ecclesiastical Titles Bill got through Committee. The inference from this was, that as soon as the Catholics were enslaved, the Jews were to be emancipated. If the noble Lord was in earnest in the latter object, he ought to proceed with it first for this reason. Of the thirty-five Roman Catholic Members in that House, thirty-four were in favour of emancipation of the Jews; but if this Bill of pains and penalties were passed, the Roman Catholic Members would not be likely to trouble the House much with their presence during the remainder of the Session. The noble Lord declared by his Bill, that in a country with 7,000,000 of Roman Catholic inhabitants, the bishops and archbishops of that body should be deprived of their religious liberty and prescriptive rights. The first clause of the Bill was in effect the whole Bill. What cared the Roman Catholics about the paltry pains and penalties imposed by the other clauses? They were indifferent whether the penalty was 100l. or 100,000l. As to the clause which related to the Scotch bishops, though an emancipating clause, he should certainly not vote for it. He would now give the noble Lord a little advice in the spirit of the advice which the noble Lord himself had offered to the Roman Catholic Members 315 on the last night of the debate—that they would use the interval for reflection, and retrace their course. He hoped the noble Lord would also reflect on his course, and on the advice offered him by the right hon. Baronet (Sir J. Graham); and for that purpose he would suggest, as the House had sat till three o'clock that morning, that they should have an early adjournment. He would remind the noble Lord that though the opponents of the Bill were in a minority in that House, they were not in a minority out of doors. The Roman Catholic Members reflected the voice and opinions of the aggregate population of Ireland—of the liberal Protestants, and the liberal Presbyterians of Ireland, who abominated tyrannical and penal legislation. Let it not be supposed that the Government had the Protestants of Ireland with them. Thinking and educated Protestants and Presbyterians were against them. The whole Roman Catholic population of Ireland was against them; and if the Irish people were to speak with one voice, they would declare that they withdrew their confidence from the noble Lord, and looked upon him as the enemy of their religion, their rights, and their privileges. It was painful to him to make the declaration, on his own behalf, and that of those in Ireland whose confidence he had the honour of enjoying, that the attempt of the noble Lord to pass this Bill, coupled with his letter to the Bishop of Durham, and his subsequent speeches, had sunk so deeply into the minds of the Irish Members and people that they were prepared to adopt any legitimate course that might be afforded them to weaken the hands of the noble Lord, and deprive him of the power of inflicting mischief on their country. He conjured the noble Lord to adjourn the question for only one week, to consider the advice that had been given him. The Session was still young. The Bill was made up of shreds and patches—part of it belonged to Youghal—part of it to Midhurst —and some of it to the Master of the Rolls. He would advise the noble Lord to take his Bill to the Crystal Palace, and exhibit it in a glass case as a genuine specimen of Whig legislation in 1851, enacted for the purpose of insulting and coercing Her Majesty's loyal Roman Catholic subjects.
§ MR. OSWALD
thought it would be as well if the Committee should understand what was the state of the law of Scotland with regard to this clause. On a previous 316 evening he had drawn the attention of the House to an old statute which he did not believe had been repealed. He might be mistaken; but as they had the law declared for England and Ireland, it might be as well that it should be declared for Scotland also.
§ THE LORD ADVOCATE
had no objection to state what he conceived the state of the law to be. Whatever might be supposed to be the force of the old statute referred to, it could not in the slightest degree interfere with this clause. The hon. Gentleman (Mr. Oswald), on a former night stated, that an old Act dated so far back as 1567, entitled an Act for Abolishing the Pope, had not been repealed, and therefore might have some operation in connexion with this Bill. Now, in 1700 an Act was passed ratifying and re-enacting, not that statute directly, but certain other Acts against the Pope, and entailing in the formula certain penalties. However, the 33rd George III. abolished all the penalties contained in those Acts against the Roman Catholics; and the 9th and 10th Victoria, better known as the Act of 1846, absolutely repealed the Act of 1700.
§ MR. OSWALD
said, that the Act of 1567 was still upon the Statute-book. The 33rd George III., cap. 44, only repealed the penalties of certain Acts recited in the Act of 1700. The 9th and 10th Victoria only repealed the Acts recited in the Act of 1700, the penalties of which had been already repealed by the 33rd George III. The answer of the right hon. and learned Gentleman, therefore, did not show whether the Act of 1567 was repealed or not; he must, therefore, insist upon an answer, and if he did not obtain one, he should move that the Chairman report progress.
§ LORD JOHN RUSSELL
could not understand on what ground the hon. Gentleman asked the Committee to report progress. They were now engaged upon a clause which had reference only to the Papal Bull, or Rescript of 1850, and which had no reference whatever to Scotland. The hon. Gentleman on a previous night had stated his views upon this very subject, and asked the right hon. Lord Advocate what the law was. Now, as he said before, this clause had nothing to do with the law of Scotland; and his right hon. and learned Friend might therefore have declined giving an answer; but out of courtesy to the hon. and learned Gentleman, he had given a 317 very clear and distinct one. His right hon. and learned Friend could do no more; and he could not conceive that the hon. and learned Gentleman had the smallest right to complain.
§ MR. OSWALD
maintained that the right hon. and learned Lord Advocate had not answered his question. He (Mr. Oswald) had stated that there was a certain Act upon the Statute-book; and the right hon. and learned Lord Advocate quoted to him two Acts, which did not apply to that Act. They had been told that they were only declaring or re-enacting the law. Well, then, why not tell them what the law was? The English representatives had been told what the law was by the law officers of the Crown. The Irish representatives had been told what the law was by their own Attorney General; and was the same privilege to be refused to Scotch representatives? It was perfectly open for the right hon. and learned Lord Advocate to refuse answering a question; but he would propound the question and put upon the right hon. and learned Gentleman the responsibility of declining to answer it. [Loud cries of "Divide, divide!"]
§ MR. STUART WORTLEY
would undertake to say that the clause did not affect the law of Scotland at all. He advised the hon. Gentleman (Mr. Oswald) to withdraw his Amendment. That hon. Gentleman had been the first to say that Bull or Rescript for the purpose he had there was no strong feeling in Scotland on behalf of this measure. He (Mr. S. Wortley) told him now, that in combating this Bill, he was stirring against the universal feeling of the Scottish people.
§ MR. REYNOLDS
objected to the withdrawal of the Amendment. The right hon. and learned Lord Advocate was willing to consider the question, if the noble Lord would have permitted him. Now, he would repeat a question which he had put at an earlier period of the evening, and which he could not got an answer; and unless he got some kind of answer —he did not expect a favourable one —he should object to the withdrawal of the Motion. The question he would put was this: If this clause pass in its present shape, and if an Irish archbishop—say Dr. Murray—were to depart this life, in the event of his successor being elected by the clergy of the diocese in the usual manner, tow or there names being transmitted to the pope for his selection, will the Bull or Rescript issued by the pope in virtue of that elec- 318 tion be illegal within the meaning of the first clause of this Rill?
§ MR. DISRAELI
said, he got up for the innocent purpose of preventing two divisions. He understood the chance of the present division arose from the noble Lord at the head of the Government preventing the right hon. and learned Lord Advocate from answering the question put to him. It was a pity that he did so, for he apprehended no Minister would rise without having something to say. If the right hon. and learned Lord Advocate favoured the Committee with his opinion, there might be no division.
§ LORD JOHN RUSSELL
said, his right hon. and learned Friend was quite ready to give his opinion if the Committee desired it. But there had been a general cry for a division, upon which his right hon. Friend resumed his seat.
§ THE LORD ADVOCATE
thought he had already answered the question. The hon. Gentleman (Mr. whether the Act of force? He thought force, and that it had been repealed.
§ LORD JOHN RUSSELL
As to the question of the hon. Member for the city of Dublin, I have only to say, that under the 10th of George IV., no person can assume a territorial title.
§ MR. REYNOLDS
said, the question which he had put was, whether the usual Bull or Rescript for the purpose he had named would be legal under the operation of this clause?
§ MR. OSWALD
If the hon. Gentleman the Member for the city of Dublin now wishes to move to report progress, he can do so, but as I have got an answer to my question, of course I shall not do so.
THE ATTORNEY GENERAL
In reply to the question of the hon. Gentleman the Member for the city of Dublin, I have to say that a Rescript appointing any Roman Catholic archbishop or bishop with a territorial title, will be, in my judgment, illegal, both under the statute of 10 George IV. and the general law of the land, as declared by this clause.
§ MR. REYNOLDS
Though the answer docs not satisfy me, I feel I should be guilty of an unpardonable offence, if, after the declaration I have made, I persevere in my Motion.
§ Motion for reporting progress withdrawn.319
§ Question put, "That Clause 1 stand part of the Bill."
§ The Committee divided:—Ayes 244; Noes 62: Majority 182.
|List of theAYES.|
|Abdy, Sir T. N.||Dundas, Adm.|
|Aglionby, H. A.||Dundas, rt. hon. Sir D.|
|Anson, hon. Col.||Dunne, Col.|
|Anstey, T. C.||Du Pre, C. G.|
|Arbuthnott, hon. H.||East, Sir J. B.|
|Archdall, Capt. M.||Egerton, Sir P.|
|Arkwright, G.||Egerton, W. T.|
|Ashley, Lord||Elliott, hon. J. E.|
|Bagshaw, J.||Evans, W.|
|Baines, rt. hon. M. T.||Ewart, W.|
|Baird, J.||Farnham, E. B.|
|Baldock, E. H.||Farrer, J.|
|Baring, rt. hn. Sir F.T.||Ferguson, Col.|
|Barrington, Visct.||Ferguson, Sir R. A.|
|Barrow, W. H.||Fitzroy, hon. H.|
|Bass, M. T.||Floyer, J.|
|Benbow, J.||Foley, J. H. H.|
|Bennet, P.||Forbes, W.|
|Beresford, W.||Fordyce, A. D.|
|Berkeley, Adm.||Forster, M.|
|Berkeley, C. L. G.||Fox, S. W. L.|
|Blackstone, W. S.||Freestun, Col.|
|Blair, S.||Frewen, C. H.|
|Blakemore, R.||Fuller, A. E.|
|Blandford, Marq. of||Gallwey, Sir W. P.|
|Booker, T. W.||Gaskell, J. M.|
|Bowles, Adm.||Gilpin, Col.|
|Boyd, J.||Glyn, G. C.|
|Boyle, hon. Col.||Gooch, E. S.|
|Brisco, M.||Gordon, Adm.|
|Broadley, H.||Granger, T. C.|
|Brockman, E. D.||Greenall, G.|
|Brotherton, J.||Greene, T.|
|Brown, H.||Grenfell, C. W.|
|Brown, W.||Grey, rt. hon. Sir J.|
|Bruen, Col.||Grey, R.W.|
|Bulkelcy, Sir R. B. W.||Grogan, E.|
|Burrell, Sir C. M.||Grosvenor, Lord R.|
|Burroughes, H. N.||Guernsey, Lord|
|Buxton, Sir E. N.||Guest, Sir J.|
|Cavendish, hon. G. H.||Hale, R. B.|
|Chandos, Marq. of||Halsey, T. P.|
|Chaplin, W. J.||Hamilton, G. A.|
|Child, S.||Hanmer, Sir J.|
|Childers, J. W.||Hardcastle, J.A.|
|Cholmeley, Sir M.||Harris, hon. Capt.|
|Christy, S.||Harris, R.|
|Clay, J.||Hastie, A.|
|Clive, H. B.||Hastie, A.|
|Cockburn, Sir A. J. E.||Hatchell, rt. hon. J.|
|Corry, rt. hon. H. L.||Hawes, B.|
|Cowper, hon. W. F.||Hayes, Sir E.|
|Craig, Sir W. G.||Heald, J.|
|Crowder, R. B.||Heathcoat, J.|
|Dalrymple, J.||Heneage, E.|
|Dashwood, Sir G. H.||Henley, J. W.|
|Davies, D. A. S.||Hildyard, R. C.|
|Deedes, W.||Hildyard, T. B. T.|
|Denison, E.||Hill, Lord E.|
|D'Eyncourt, rt. hon. C.T.||Hodges, T. L.|
|Disraeli, B.||Hogg, Sir J. W.|
|Dod, J. W.||Hollond, R,|
|Duncan, G.||Hornby, J.|
|Duncuft, J.||Hotham, Lord|
|Howard, hon. E. G. G.||Rich, H.|
|Hughes, W. B.||Richards, R.|
|Humphery, Ald.||Robartes, T. J. A.|
|Hutt, W.||Rufford, F.|
|Johnstone, Sir J.||Russell, Lord J.|
|Jones, Capt.||Russell, F. C. H.|
|Ker, R.||Sandars, G.|
|Kershaw, J.||Seymour, Lord|
|Knightley, Sir C.||Sheridan, R. B.|
|Knox, Col.||Sibthorp, Col.|
|Knox, hon. W. S.||Slaney, R. A.|
|Labouchere, rt. hon. H.||Smith, M. T.|
|Langston, J. H.||Smollett, A.|
|Langton, W. H. P. G.||Somerville, rt. hn. Sir W.|
|Lawley, hon. B. R.||Spearman, H. J.|
|Lemon, Sir C.||Spooner, R.|
|Lennox, Lord H. G.||Stafford, A.|
|Lewis, rt. hon. Sir T. F.||Stanford, J. F.|
|Lewis, G. C.||Stanley, E.|
|Lewisham, Visct.||Stanley, hon. W. O.|
|Lockhart, A. E.||Stanton, W. H.|
|Lockhart, W.||Staunton, Sir G. T.|
|Long, W.||Stuart, H.|
|Lopes, Sir R.||Sturt, H. G.|
|Loveden, P.||Talbot, C. R. M.|
|Lygon, hon. Gen.||Thesiger, Sir F.|
|Mackie, J.||Thicknesse, R. A.|
|Macnaghten, Sir E.||Thompson, Col.|
|Marshall, W.||Thornely, T.|
|Martin, C. W.||Thornhill, G.|
|Miles, W.||Townshend, Capt.|
|Milner, W. M. E.||Tyler, Sir G.|
|Mitchell, T. A.||Verner, Sir W.|
|Moffatt, G.||Villiers, hon. F. W. C.|
|Moncrieff, J.||Vivian, J. E.|
|Moody, C. A.||Vyse, R. H. R. H.|
|Morgan, O.||Waddington, H. S.|
|Morris, D.||Wakley, T.|
|Mostyn, hon. E. M. L.||Walpole, S. H.|
|Mulgrave, Earl of||Walsh, Sir J. B.|
|Mundy, W.||Wawn, J. T.|
|Napier, J.||West, F. R.|
|Newdegate, C. N.||Westhead, J. P. B.|
|Nicholl, rt. hon. J.||Whiteside, J.|
|Ogle, S. C. H.||Wigram, L. T.|
|Paget, Lord C.||Willyams, H.|
|Pakington, Sir J.||Williamson, Sir H.|
|Palmer, R.||Willoughby, Sir H.|
|Palmerston, Visct.||Wilson, J.|
|Parker, J.||Wilson, M.|
|Patten, J. W.||Wood, rt. hon. Sir C.|
|Peel, Sir R.||Wood, Sir W. P.|
|Perfect, R.||Wortley, rt. hon. J. S.|
|Pigott, F.||Wrightson, W. B.|
|Plumptre, J. P.||Wyvill, M.|
|Price, Sir R.||Yorke, hon. E. T.|
|Repton, G. W. J.||TELLERS.|
|Ricardo, O.||Hayter, W. G.|
|Rice, E. R.||Hill, Lord M.|
|List of the NOES.|
|Armstrong, R. B.||Crawford, W. S.|
|Arundel and Surrey, Earl of||Currie, H.|
|Dawson, hon. T. V.|
|Barron, Sir H. W.||Deyereux, J. T.|
|Blake, M. J.||Fagan, J.|
|Bright, J.||Fox, W. J.|
|Burke, Sir T. J.||French, F.|
|Clements, hon. C. S.||Geach, C.|
|Colebrooke, Sir T. E.||Gladstone, rt. hn. W. E.|
|Corbally, M. E.||Goold, W.|
|Grace. O. D. J.||O'Flaherty, A.|
|Graham, rt. hon. Sir J.||Osborne, R.|
|Grattan, H.||Oswald, A.|
|Greene, J.||Peel, F.|
|Higgins, G. G. O.||Ponsonby, hn. C. F. A. C.|
|Hobhouse, T. B.||Power, Dr.|
|Keating, R.||Pusey, P.|
|Lawless, hon. C.||Roche, E. B.|
|M'Cullagh, W. T.||Sadleir, J.|
|Magan, W. H.||Scholefield, W.|
|Maher, N. V.||Scully, F.|
|Meagher, T.||Seymour, H. D.|
|Mahon, The O'Gorman||Smith, rt. hon. R. V.|
|Monsell, W.||Smythe, hon. G.|
|Moore, G. H.||Somers, J. P.|
|Murphy, F. S.||Sullivan, M.|
|Norreys, Sir D. J.||Talbot, J. H.|
|Nugent, Sir P.||Tenison, E. K.|
|O'Brien, J.||Tennent, R. J.|
|O'Brien, Sir T.||Wegg-Prosser, F. R.|
|O'Connell, M. J.||Reynolds, J.|
|O'Ferrall, rt. hon. R. M.||keogh, W.|
§ LORD JOHN RUSSELL
We have now got through the first clause; and, with respect to the second clause, I think it is likely that we shall have considerable delay, in consequence of the number of Amendments that are to be moved, and which will occupy some time in discussion; I propose, therefore, now, that the Chairman should report progress, and ask leave to sit again. In making this Motion I have merely to say to hon. Gentlemen who are opponents of the Bill, and who have Amendments to move, that on this first clause the question has been very fully debated; but with regard to another class of Members of this House who are supporters of the Bill, and who mean to make Amendments, I would really wish them to consider whether there is any thing of importance in those Amendments. Considering that there are some of them that do not carry much further the enactments of the Bill than they are now carried; and also considering that there are others of so objectionable a character in the view of many hon. Members of this House that it is impossible to adopt them, I wish them to consider, before Monday next, whether there are any of these Amendments which they think of sufficient importance to press upon the attention of the House. It appears to me that the Bill, in its present shape, is sufficient. The first clause has stamped with illegality the Rescript of September, 1850; and by the second clause, rendering liable to penalty the assumption of ecclesiastical titles of sees that are not sees of existing bishops, as also of sees that are the sees of existing bishops, there will be found a declaration by Parliament sufficiently strong and authoritative to vindicate the authority both 322 of the Crown and the Parliament, and the independence of the nation. However hon. Gentlemen may think that the Bill would be improved by the adoption of those Amendments, I really wish them to consider whether the delay that must occur, and the divisions that must take place amongst those that support the Bill, will not cause more embarrassment than any advantage that can be derived from their propositions. I do not wish to raise any discussion in moving that the Chairman report progress; but I think it right to ask hon. Members to take this into their consideration.
§ MR. WALPOLE
said, in answer to the observations of the noble Lord, it may be convenient to the Committee to state shortly what view I take of the Amendments I mean to propose. The noble Lord does not, I know, expect an immediate answer from me as to the points I intend to press; but, entertaining a very strong opinion that some portions of those Amendments should be passed, perhaps it would be convenient to acquaint the Government at this moment that the Amendments on the second clause which I shall put relate to three things: first, "if any person shall do or assume to do any act, deed, matter, or thing, under, or by virtue of, the aforesaid brief, rescript, or letters apostolical" (which we have just declared void); secondly, "if any person shall hereafter obtain, or cause to be procured, from the said Bishop or See of Rome, or shall publish or put in use within any part of the United Kingdom any brief, rescript, letters apostolical, or any other instrument or writing for the purposes aforesaid," that is, for constituting a hierarchy in this country; and, thirdly, I propose to insert these words, "if any person shall, under colour of any authority from the said Bishop or See of Rome, assume, or claim to have or exercise any authority or jurisdiction over any province or diocese, or any pretended province or diocese, within the United Kingdom." With regard to the first of these Amendments, I think it is the necessary consequence of declaring the Brief unlawful, and I wish to take the opinion of the Committee upon it. With regard to the second, I think it advisable that the opinion of the Committee should be taken upon it in order that you may avoid the necessity of recurring again to fresh legislation on the subject that now occupies the attention of the House, and which has occasioned throughout the country so much excitement. With regard to the third, I 323 have some doubts about it; for, I think, in the first place, there is more ambiguity contained in that clause than in the other two; and there might be some difficulty in enforcing that prohibition. Then, as to the prosecutor's clause, I will state my views more fully on Monday. But it may be convenient now to state that I intend to adopt the suggestion of my hon. and learned Friend the Member for Abingdon. In answer to the observation of the hon. and learned Member for Athlone, with reference to a proviso that no prosecution should be had under the first clause without the consent of the Attorney General, that is the principle of the suggestion made by the hon. and learned Member for Abingdon, and I think the proviso of the hon. and learned Member for Athlone might be incorporated in the proviso of the hon. and learned Member for Abingdon. As to the first and second paragraphs in the preamble, I wish very strongly to press them upon the attention of the House. The result then is, that I intend to press the first two paragraphs in the Amendments to clause No. 2. I intend to adopt the suggestion of the hon. and learned Member for Abingdon, and I intend to take the sense of the House on the two paragraphs of the preamble to which I have now called the attention of the Committee. I do not think that I could well be expected to give them up.
§ LORD JOHN RUSSELL
I am much obliged to the hon. and learned Gentleman for giving me notice of his intentions. As he has stated them, I may say, that I cannot consent, on my part, to any of the Amendments he has stated. There is one Amendment, however, to which I take, perhaps, a stronger objection than to any which he has now stated, and which, I think, still stands on the printed paper. It is the accumulative penalty for a second offence; and finally inflicting the punishment of transportation of the persons assuming those titles— [An Hon. MEMBER: The deportation]—but if the person returns, I think that there is notice given that the clause applicable to the Jesuits in the Roman Catholic Emancipation Act shall be applied, which is not deportation, but transportation. I must say I think the penalty in the Roman Catholic Relief Act of 100l. is sufficient. It is a matter that is punishable by no very heavy penalty, but it gives notice to all men that they cannot infringe the law with impunity. 324 That is quite sufficient, and I shall oppose any accumulative penalties whatever.
§ MR. WALPOLE
Instead of announcing what I shall do with the clause relating to the accumulative penalty, I would rather reserve my opinion until Monday. I would rather reserve my opinions on all the Amendments until we again go into Committee.
§ House resumed.
§ Committee report progress; to sit again on Monday next.