HC Deb 21 August 1860 vol 160 cc1674-86

Order read, for resuming Adjourned Debate on Amendment on Consideration, as amended [9th August]; and which Amendment was, to leave out Clause 1.

Question again proposed, "That Clause 1 stand part of the Bill."

Debate resumed.

On Question that Clause 1 stand part of the Bill.


invited the Attorney General to favour the House with his opinion on the Clause.


It is so long since the debate was adjourned, that I really cannot undertake to say whether I am at liberty to address the House or not. [Cries of "Spoke."]


then rose, but was met with a cry of "spoke" and "order."


I beg to remind the hon. Member that he has already spoken in this debate.

Question put,

The House divided:—Ayes 70; Noes 13:—Majority 57.

Motion made, and Question proposed, "That the Bill be read the third time Tomorrow."


begged to observe that, as his name was on the back of the Bill, he wished, in consequence of the de cision just arrived at, to disclaim all connection with it. With great respect he expressed the opinion that that clause gave to the Bill all the character of a penal law. The House had agreed to a clause in which occurred the phrase "superstitious" as applied to the trusts and uses attached to charities connected with the Roman Catholic Church. That word was used in an Act of Parliament that was as old as the time of Edward VI., and not since then. He was sorry that the House had sanctioned the use of such a word; and he repeated, therefore, that he disclaimed all connection with the Bill.


Considering the extraordinary position in which I am placed by the conduct of Her Majesty's Government, I am anxious to offer a few words to the House by way of explanation upon the subject. I now state to the House distinctly that, whilst standing at the bar of the House yesterday, Her Majesty's Attorney General came to me and asked whether I would be satisfied with and acquiesce in the Bill, if the clause moved by the hon. Member for Hertfordshire, and the proviso of the right hon. Gentleman the Member for Kilmarnock were inserted in the place of the 1st Clause as it now stands in the Bill. I acquiesced in the suggestion, and placed the matter in his hands accordingly. I then communicated with various hon. Members on both sides of the House, and informed them what had passed. I told them that I very much preferred the clause of the hon. Member for Hertfordshire to the one contained in the Bill; and several of them, including the right hon. Gentleman the Member for Oxfordshire, expressed their satisfaction that a compromise had been effected, which was likely to settle the matter in an amicable way. I therefore looked with anxiety to the appearance of the Attorney General in the House this day, because I clearly understood that it was his intention to endeavour to carry into effect the arrangement I have mentioned; and I own I was much astonished, when the Bill was called on, to find that the Attorney General did not rise in his place and take the course I had expected. I declare to the House that I was fully convinced by what he said to me, that a compromise had been agreed upon. And, again, I say, that I communicated to various Members that it was so, and told them that the Attorney General had proposed to me to take the clause of the hon. Member for Hertfordshire, and that I fully expected the arrangement would be carried out. I must also declare my thorough disappointment, when I find that the Government have thrown me over at the very last moment by voting against me in opposition to the arrangement thus come to. I may now be permitted to state what are the practical objections which I entertain to the clause in the Bill as proposed by the hon. and learned Member for the University of Cambridge. In the first place, that clause gives legislative sanction to the decisions of Courts of Law regarding superstitious uses that have never had a legislative sanction before. It converts into statute law decisions as to superstitious uses which have never come before a Court of Appeal, and which, on any future occasion, might be reconsidered and reversed by such a Court of Appeal. Moreover, the Attorney General has given me his opinion more than once, that the law as to superstitious uses no longer exists; that there is no such law; and that the various statutes which have been passed tolerating and legalising the Roman Catholic religion in this country have rendered valid every part of it. The practice of praying for the dead is a necessary part of the Roman Catholic religion. No Roman Catholic ever uses private devotions without prayers for the dead. No mass is said in any of our churches without prayers for the dead. They are a necessary part of our liturgy, and they cannot be omitted in any mass that is ever said in our churches. True, there are special masses for the dead; but in all our devotions prayers for the dead are included. Therefore, if you declare prayers for the dead to be illegal, you make the whole practice of Roman Catholic worship, both public and private, positively illegal. Now, at this time of day, after Catholic Emancipation and the statutes which admit to a perfect equality all Her Majesty's subjects, whatever may be their religious creed, and allow them entire civil and religious freedom, that surely cannot be the intention of the House. I appeal to the Liberal party opposite. I tell them distinctly that, by voting for this clause, they have voted for the perpetuation of a portion of that system which they are constantly condemning when they talk about civil and religious liberty. This clause is a penal enactment. ["No, no!"] It is a new penal enactment, I repeat, against the Roman Catholics; for what does it provide? Why, it provides this:—That wherever there are prayers for the dead, which are an essential and a necessary part of the Roman Catholic religion, an essential and a necessary part of Catholic worship, both public and private, that portion of the Catholic worship is by statute declared to be illegal, and the funds applicable to that purpose shall be taken away and devoted to other uses—shall be forfeited and confiscated, and applied to something else. Thus, the legislature puts its seal upon an enactment which stigmatizes as superstitious an essential and a necessary part of the public and private worship of a considerable portion of their fellow subjects. ["No!"] I say that a clause of this description is a disgrace to the Parliament that enacts it. But it is doubly a disgrace to those who talk of civil and religious liberty. Let them say no more about religious liberty; for they have sanctioned a clause which declares to be superstitious that which is a necessary part of the worship of a large section of their fellow subjects. The question is, what is to be done with regard to this enactment. I do not know what may take place in the House of Lords; but I shall propose that there be added to this clause, which has just been approved of, to my deep regret at all events, the proviso of which notice has been given by the right hon. Gentleman the Member for Kilmarnock; and I trust that Her Majesty's Government will consent to its adoption, either as a proviso or a separate clause, if they are not inclined to propose it themselves.


Sir, I deny altogether that the House, in agreeing to this clause, has done anything that is inconsistent with the great doctrine of religious freedom, whilst it has acted in perfect consistency with the prayer of the petition which was presented to the Pope by the lay Roman Catholics of England so early as the year 1839. These same Roman Catholics also petitioned Cardinal Wiseman in 1851, that he would institute such a constitution for them, under the powers granted to him from Rome, as should compound the Canon law of Rome with the statute law of their beloved country. My firm belief is that the Government and the House have acted rightly in accordance with the advice of competent persons like the late Mr. Baines in conceding, after long delay, the prayer of those petitions as presented to the House last Session, and previously enforced by their evidence before the Mortmain Committee. With respect to what the hon. Baronet the Member for Dundalk has said, let not the House be misled. We have not by the decision at which we have arrived precluded or con- demned prayers for the dead. All that we have done is this:—We have proceeded upon the Common law of England as it has existed for 300 years in declaring that the condition of prayers being said for the dead shall not be attached to the transmission of real estate, because out of the attachment of that condition sprung the necessity for enforcing the laws of mortmain. Therefore, this House, so far from departing from the free and ancient constitution of the country, is acting in thorough conformity with it; and beyond that, in perfect consistency with the well-known statute of provisors which was passed in the reign of Richard the II. For it has been proved before Committees of this House, that the state of the law which the House is now called upon to remedy, led to the practice of taking cases relating to English property to Rome for decision. Even in the days when this country was altogether Roman Catholic, the Legislature acted on the great principle embodied in the great charter. The words are as follows:—"Eeclesia Anglicana Libera sit, et leges suas illœsas habeat." Well, that is all the House has done. And I believe that in so doing it confers an inestimable boon upon the Roman Catholic laity and their charities in this country, acts in accordance with the justifiable and constitutional portion of the prayer of the petition to the Pope of 1839, and of that addressed to Cardinal Wiseman in 1851. So far from departing from the great principles of civil and religious freedom, the Clause now adopted will secure to Roman Catholics freedom from that oppression exercised by a foreign and usurped authority which, in their petitions and in their evidence, they state has been so grievous to them for the last ten years.


Sir, I trust to be permitted to say a few words in answer to the excited speech of the hon. Member for Dundalk. I have taken much trouble in the endeavour to settle this question, and have acted in such a manner as I hoped would have been acceptable to both parties; but, with the ordinary fate of men who try to please all, I find that I have succeeded in pleasing none. When the original clause was brought up, considerable difficulty was felt in accepting it, and in a moment of weakness I undertook to prepare another, and I thought I had done so with the perfect assent and acquiescence of the hon. Member for Dundalk and other Gentlemen who are act- ing with him. Accordingly, in my innocence, I rose to propose the clause, but, to my surprise, was violently interrupted by the hon. Member, who said he would have nothing to do with the clause. I therefore very humbly sat down, resigned the matter into his hands, and shortly after walked out of the house. To my great surprise, I subsequently learnt that the House I had left behind me was detained by the hon. Member until four o'clock in the morning. I felt myself relieved from all concern in the Bill; but I could not emancipate myself from the continued importunities of the hon. Member. At length I said to the hon. Member, "If you and those with whom you are acting will deliver yourselves into my hands, I shall he glad to take charge of the Bill." I then received a letter from the hon. Member telling me that he would put the matter into my hands, provided I would undertake to get rid of the 1st Clause as it stands in the Bill. Now, that was an engagement which I did not, and could not, make; and there was no arrangement whatever with the hon. Member that I should do so. I told the hon. Member, with a sincere desire to assist him, that I thought the best plan he could adopt would be to get the clause of the hon. Member for Hertfordshire substituted for the clause as it stands, and to add to that clause the proviso of the right hon. Gentleman the Member for Kilmarnock. That was the best advice I could give him, and that was the full extent of the arrangement; but the anxiety of the hon. Member has induced him to put a more sanguine construction upon the words I used than they were intended to bear. That, then, is the position in which the matter now stands; and if he could have been prevailed upon to substitute the Amendment of the hon. Member for Hertfordshire with the proviso for the clause to which the House has agreed, I should have endeavoured to assist him; but I could not engage to alter the decision of the House, more especially because I have always said that the imaginations by the hon. Member of mischief arising from the existing clause are entirely without foundation. I thoroughly believe that the clause as it now stands in the Bill will not in the smallest degree affect the present position of the law upon the subject of superstitious uses. If the law on the subject has been modified by recent legislation, the modification will still remain. I trust I have placed myself right with the House in reference to this question. I am extremely sorry the hon. Member has used the language he has on this occasion. He can only have done so under a feeling of anxiety and agitation, and a forgetfulness of what actually passed between us. But the treatment which I have experienced at the hands of the hon. Member justifies me in refusing to have any further connection with the Bill.


The Attorney General has most accurately stated what passed between him and the hon. Member for Dundalk, for I was a party to the conference as we came in at the door of the house; and I say again that the Attorney General has accurately represented what passed on the occasion. I have had many conferences with my hon. Friend the Member for Dundalk also, and in a friendly spirit. I have been sincerely desirous of effecting an amicable arrangement if possible; and I did my best to bring about such an arrangement by the adoption of a clause that would at once secure the object which Parliament has in view, and satisfy my hon. Friend. I have again and again assured him of my unfeigned opinion, in accordance with that which has been expressed by the Attorney General, that the clause which we have just passed will work satisfactorily to my hon. Friend himself if he will only allow his mind to become calm and relieved from the excitement under which it is at present suffering. I venture to say that when Parliament has been prorogued, and he permits himself dispassionately to consider, in conjunction with his friends, the effect of the clause, he will very soon come to the same conclusion that I have, after giving the matter full consideration, that it will work satisfactorily to Parliament, to the country, and to every interest concerned.


I move that the debate be now adjourned.


seconded the Motion.

Motion made, and Question proposed, "That the debate be now adjourned."


Having been alluded to in the course of this discussion by the hon. Member for Dundalk, I may be allowed to state what passed on the occasion of the clause being agreed to by the Committee. I was present in the House when the clause was adopted as I thought with general consent, and I conceived it to be a satisfactory settlement of the question. At least so far as I could understand it, I was perfectly satisfied. But the Bill itself has passed through many curious phases of lights and shadows, and amongst other things a rumour was circulated that the Government were going to throw out the clause. How the rumour arose, I am sure I do not know; but it certainly went round the House. I considered that to be impossible, however, because I understood the matter had been settled with the assent of the right hon. Gentleman the Home Secretary. I therefore deemed it simply impossible. Still, there was the rumour I have referred to, and everybody heard of it. In the face of that rumour the hon. Member for Hertfordshire put his clause in print; and the hon. Baronet the Member for Dundalk spoke to me upon the subject, and pointed out several objections to the clause in the Bill as it stood. He did not, however, convince me, and I told him that I did not see the force of his objections; but I added that, so far as I was concerned, if the matter was to be again opened, I should be content with the clause of the hon. Member for Hertfordshire. That was all that passed between us. I said that, if the question could be amicably settled on that ground, so far as I was concerned, I should be satisfied. I am better satisfied as the Bill stands, because it is always inconvenient to be doing and undoing. There may be reasons perhaps for undoing in this instance; but I cannot see them myself, and I repeat that I am better pleased with the Bill as it stands.


Sir, I trust the House will allow me to say a few words in reference to what has been stated by the hon. and learned Gentleman the Attorney General. He says that I uncourteously put him down, or stopped him, when he was proceeding to address the House. Now, I must be permitted to say that I never intended the slightest discourtesy towards the hon. and learned Gentleman. I remember well what occurred on the occasion. A suggestion was made by me to the Attorney General when he rose to address the House, and the same suggestion was made at the same time by the right hon. Gentleman the Secretary for the Home Department. When the Attorney General got up, I suggested to him that the course which had been agreed upon was to support the first Clause in the Bill as it then and originally stood instead of the clause of the hon. and learned Gentleman. The Attorney General having stated to me that he was perfectly ready to throw aside his clause, and that he did not care about it, I thought he was ready to agree to the original clause; and all I did, simultaneously with the Home Secretary, was to remind the hon. and learned Gentleman of the arrangement that had been made between us. I was very much surprised, therefore, when upon that suggestion being made by the Home Secretary and myself the hon. and learned Gentleman walked out of the House. I was utterly surprised at his taking any offence. However, he did take offence, and the mischief was done. With regard to what took place between the Attorney General and myself, the hon. and learned Gentleman the Member for Wallingford certainly heard part of it, but not the whole. The Attorney General said to me—"Will you deliver your case up to me entirely," and upon my answering "yes," he said, "Then I advise you to take Mr. Puller's clause and add to it Mr. Bouverie's proviso." I said, "By all means, let it be so. I put the matter in your hands;" and I certainly understood that the hon. and learned Gentleman had undertaken to assist me in carrying that arrangement into effect. If I was mistaken, then I can no longer have any confidence whatever in what passes between man and man, and I am perfectly amazed at the account which he has given the House of the transaction. Moreover, acting upon the proposal of the Attorney General, I went into the Library and copied the clause of the hon. Member for Hertfordshire, to which I adopted the proviso of the right hon. Member for Kilmarnock, and delivered it to the hon. and learned Gentleman expecting that he would come down and propose it. I now find myself thrown over-board by the Government, and I own I am astonished at it, and think myself very ill-used. The hon. and learned Member for Wallingford has talked of my excitement, and speaks as if this were a private Bill which has been brought in for the interest of Sir George Bowyer. It is no such thing. I am intrusted with important public interests. I stand here representing the interests of a large body of Her Majesty's subjects. I stand here as the representative of all the Roman Catholics of England in this instance. [Cries of "No."] Yes; I say I do. I have communicated with all sections of them, and I say emphatically that the Bill, in the shape in which it stood before the introduction of the clause of the hon. and learned Member for the University of Cam- bridge had the assent of every section of Roman Catholics in the country, and that there is not any portion of the Roman Catholic body, whether clergy or laity, that does not assent to it as it then stood. ["Divide!"] Hon. Members say "divide"—I have a right to speak, and I will speak. I stand here, the representative of a million and a half of Her Majesty's subjects who are Roman Catholics, and I tell you distinctly that it is the opinion of the leading persons among the Catholic body that the clause introduced by the hon. and learned Member for Cambridge University is an injurious and a mischievous clause to them; and they believe, moreover, and I believe, that he introduced it with the intention to injure them. ["Order!"]


That is unparliamentary and irregular. The observation of the hon. Member that a clause was moved with the intention of doing injury is neither Parliamentary nor regular.


When I said injurious to them, I meant that, no doubt the hon. and learned Gentleman thought that by doing injury to the Roman Catholics he would be doing good to the Protestants.


That is not an explanation which can be satisfactory to the House.


I attributed no dishonest intention to the hon. and learned Gentleman.


I must request the hon. Member to recal the observation.


I am quite ready to recall any observation that is either unparliamentary or irregular. What I meant was, that the hon. and learned Member for Cambridge University being opposed to the Roman Catholics, of course thought he was doing good by doing anything which would injure them. I spoke of public, not private grounds. But the clause is considered to be an injurious one to the Roman Catholics. It will expose us to a great deal of litigation and expense. A great many of our charities are very small, and will be swallowed up by these references to Judges and other complicated proceedings in the Court of Chancery. The clause will, therefore, be a serious injury to us. And although the hon. Member for North Warwickshire states that it does not prohibit the use of prayers for the dead, still it does stigmatize as superstitious that observance of the Catholic religion. It casts a stigma upon our worship, and it is a penal enactment which confiscates a portion of the property of the Roman Catholic Church which is devoted to that purpose. It only now remains for me to state what course I propose to take. The clause, I have remarked, is insulting, mischievous, and injurious in every possible way, and if it passes into a law, I will not be responsible for it. It is not my Act, but that of the hon. and learned Member for Cambridge University. To his own conscience I leave it entirely, and wash my hands of it altogether. We shall see, however, what is done in "another place." The Bill will go to the House of Lords, and I trust that our case will there receive more justice than it has met with in this House; and that the Catholics of England will be dealt with more fairly by the Members of the Government in the House of Lords than by the Members of the Government in the House of Commons. I repeat that Her Majesty's Government have behaved most unfairly by me. From time to time they have given this Bill a lukewarm support which they had better not have given it, for that support has turned out to be a delusion and a snare—a rotten reed that only stuck into my hand when I endeavoured to rest upon it. I trust that the Catholics of England will remember the manner in which they have been treated by Her Majesty's Government. ["Oh, oh!"] I will venture to say that the Members of the late Government would have behaved in a much more straightforward manner towards us. I am not a party man. I care for neither party, except so far as they do right. I never gave a party vote in this House in my life; but I most honestly say that I have met with more fair dealing on the part of the Earl of Derby's Government than I have from the present; and in this instance, I will not say their duplicity, because I shall be called to order if I do so, but their want of reliability will not be lost upon the Roman Catholics of England. They will remember the way in which they have been treated. They will remember the laughter and jeers that have come from the Treasury bench, when the Member who represented them got up, alone and almost unsupported, to maintain their interests and the interests of their clergy, and the endowments by which their clergy and schools are kept up. They will remember that their case was treated with contempt—["No!"]—and that the Government refused to consider the just claims of that portion of their fellow-subjects who be- long to the Roman Catholic Church. The Attorney General says that we have no reason to fear any injury from the passing of the Bill in its present shape. Her Majesty's Ministers think they know better than we do what our true interests are. But we have a right to judge for ourselves. You say it is a good clause. We say that it is injurious. Protestant Members have nothing to do with the Bill. It cannot affect them. It affects us only. Why, then, should we not be left to judge for ourselves what we want? This was intended to be a measure of relief. We tell you what we want, and what we consider to be good for our interests. Why, then, insist upon going to the Member for a Protestant University to tell you what is good for the Roman Catholic subjects of Her Majesty? Is that a proper person to judge of what is desirable for the Roman Catholic Church in England? What would hon. Members say if I were to take a strong part with regard to the Ecclesiastical Commission or the Carlisle Canonries Bill, or any other matter which belongs exclusively to the Established Church? I never do so. On the contrary, I always go out of the House when there is a division on a matter exclusively regarding the internal affairs of the Established Church. I consider that it would be alike indelicate and indecent in me to interfere in such matters. I leave Protestants to manage their own affairs, and in like manner think that the Roman Catholics should be left to manage theirs. If I now consent to appoint a day for the third reading of the Bill, it is under protest against the injury which has been inflicted upon the English Roman Catholics, and in the hope that what has been done in the House of Commons will be reversed in "another place," where I trust justice and equity will prevail more than they have done here, and the Members of the Government will take a course more in accordance with their duty and honour, and better calculated to satisfy the Roman Catholics, whose interests, equally with those of Protestants, are entrusted to their care and keeping.


I cannot allow to pass uncontradicted the charges which the hon. Baronet the Member for Dundalk, whose uncontrollable excitement blinds his mind to facts and reason, has thought fit to bring against Her Majesty's Government. I pardon those false accusations, in consideration of the ungovernable state of mind which in reality hardly leaves him master, certainly not a responsible master, of his own language. I utterly deny that we have conducted ourselves in any manner which in the slightest degree affords a shadow of ground for those violent vituperations in which he has indulged against the whole of the Government. There has been no breach of faith, no breach of any engagement. We have supported a clause which was unanimously agreed to by the House. In fact, if I mistake not, the hon. Baronet himself voted for it. [Sir GEORGE BOWYEB: NO, no; I did not.] Then he stood alone in opposition to the clause, which was agreed to without a division. Now the hon. and learned Gentleman complains bitterly that we do not follow, in regard to the provisions of this Bill, the conduct which he says he pursues whenever any measure is proposed that is connected with the English Church. He says that what he does is to go out. I would really ask him in his cooler moments to consider what would have been the fate of this Bill, if every Protestant Member of the House had left when it was under consideration. Why, the result would have been that the House would have been counted out, and the Bill could not have proceeded further. I am sure I feel every sort of consideration for the state of mind which the hon. and learned Gentleman is in; but I beg leave emphatically to deny the accusations which he has thought fit to bring against the Government.


My name is on the back of this Bill, and I beg to state that I have every reason to believe that the provisions of the Bill as it now stands are perfectly satisfactory to that large body of Roman Catholics in the north of England who asked me to take charge of the Measure.

Motion, by leave, withdrawn.

Main Question put, and agreed to.

Bill to be read 3° To-morrow.