§ Order of the Day for the House to be put into Committee read.
§ LORD MONTEAGLE
said, that in consequence of the extreme difficulty which he and others had experienced in obtaining information from the Government respecting the true meaning and legal effect of their Bill, he had felt it to be his duty to print certain questions to which he had a right to ask for precise replies from the woolsack. Before he moved his Instruction, he would therefore beg leave, without any preliminary observations, to put to the Lord Chancellor the four questions of which he had given notice. The noble Lord then read the following Questions from the Notice Paper:—1. If a Roman Catholic diocese bears the same title and is conterminous and identical with a diocese in the Established Church, is such Roman Catholic diocese 'a pretended diocese' under Section 1 of the Ecclesiastical Titles Assumption Bill? Is the Papal instrument appointing to such diocese illegal and void under such Bill? And is the jurisdiction, authority, pre-eminence or title conferred or proposed to be conferred by such appointment unlawful and void under such Bill?2. If a Roman Catholic diocese bears the same title with a diocese in the Established Church, but is not conterminous or identical therewith, is such Roman Catholic diocese 'a pretended diocese' under Section 1 of the Ecclesiastical Titles Assumption Bill? Is the Papal instrument appointing, or purporting to appoint, to such diocese unlawful and void under such Bill? And is the jurisdiction, authority, preeminence, or title unlawful and void under such Bill?3. If a Roman Catholic diocese neither bears the same title nor is conterminous with any diocese of the Established Church, is this a 'pretended diocese' under Section 1 of the Ecclesiastical Titles Assumption Bill? Is the Papal instrument appointing, or purporting to appoint, to such diocese unlawful and void under such 1472 Bill? And is the jurisdiction, authority, preeminence, or title unlawful and void likewise under the said Bill?4. Is the appointment of a Vicar-Apostolic in England or Ireland, under the authority of any Papal Rescript, Letters Apostolic, or other instrument from the Roman See, rendered illegal and void under the 16th Richard II., coupled with the declaratory and enacting provisions of the Ecclesiastical Titles Assumption Bill? Or is the person acting, or claiming to act, under such instrument, or appointment, subject to any penalty or prohibition under the Ecclesiastical Titles Assumption Bill?
The LORD CHANCELLOR
said that, with respect to the first of these Questions, he had only to reply, that it had long since been disposed of by the Act of the 10th of George IV. With respect to the 2nd and 3rd Questions, the Bill was declaratory that the Papal Briefs and instruments were unlawful and void, and of course all acts emanating from and published under such instruments would follow the same rule. He apprehended that new dioceses, &c, constituted under new names and new limits, would also be considered unlawful and void. With regard to the 4th Question, respecting the appointment of Vicars Apostolic in England or Ireland, he had only to answer that the right to the free exercise of the Roman Catholic religion had been allowed and recognised over and over again by Parliament, and that such exercise in the usual and ordinary mode would not therefore be illegal under the 16th of Richard II., nor would any regulation in this Bill interfere with it. That was the answer which he had to give to the Questions in the abstract. Much, however, must depend on time and circumstances, much on the occasion and form of the documents. So far as regarded the documents referred to in this Bill, it was declared that such documents were unlawful, and all instruments in the same category would be subject to the same rule. The present Bill made no alteration in the law, but was only declaratory of it. As to a fifth question, of which he had only received notice from his noble Friend an hour ago, namely, whether, after certain Briefs had been declared unlawful and void, the parties endeavouring to carry the same into effect would be guilty of a misdemeanour, he had only to say that this Bill would make no alteration in the law in that respect. In that respect, whatever was the effect of the statute of Richard II. would remain unaltered.
§ LORD MONTEAGLE
said, he was still left in some doubt as to the meaning of the 1473 Bill, even after the explanation just given by his noble and learned Friend on the woolsack. The oracle, it was true, had spoken, but it was in some respects as obscure as if, like Friar Bacon's brazen head, it had only pronounced "Time was, time is, and time will be." It was as full of double meaning as its Grecian predecessor, which had declared Aio te Æacidœ Romanos vincere posse. However, he had extracted enough for his purpose from that answer. He understood his noble and learned Friend to decide that the dioceses described in the first question came under the penalties of the 10th George IV. only, as being "real," whilst the districts described under the 2nd and 3rd question were "pretended" dioceses, and came under the operation of the Bill now before their Lordships. The noble Lord then moved—That it be an Instruction to the Committee of the whole House on the Ecclesiastical Titles Assumption Bill, to insert a clause to exempt Ireland from the operation of the said Bill;and said, that if he did not think the Motion of which he had given notice to be of the first importance, he would not have pressed it on the attention of their Lordships. He could have wished that the whole question had been argued as a political one. Much extraneous and irritating matter would have been excluded. He did, indeed, deeply lament that any religious feeling should have been mixed up with this question—for he had always wished that it should have been exclusively considered as a mixed question of law municipal and international, and of general policy. He considered that the question whether the Synod of Thurles was unlawful or not, or whether the resolutions of that assembly were creditable or mischievous, had nothing to do with the measure before the House, though so much had been made of that argument by many noble Lords. He would only say, in passing, that he had no great confidence in any such synodical meetings, whether held at Thurles or at Exeter. Indeed he might refer their Lordships to high ecclesiastical authority in support of this opinion. Neither did the existence of monasteries, or of the regular orders, bear on the question. None of these establishments wore affected by the Bill, and they were only introduced to cast obloquy on the class against whom we were called on to legislate. He was aware that it had been made an objection to his Instruction that it would create a difference between the branches of the United Church 1474 in England and in Ireland. If it did so, which however he would not admit, it was not open to any greater objection, in this respect, than was a recent correspondence between the Bishops of the Established Church in Ireland, and the Archbishop of Canterbury. The Irish Bishops had sent a letter to the Archbishop of Canterbury complaining that they had not been asked to join in the Address presented to the Crown by the Bishops of the Established Church in England protesting against the Papal Bull; they claimed the right to do so as Bishops of the Established Church. The Archbishop of Canterbury replied that as the offence—or, to speak more correctly, as the Papal Bull or Rescript, which constituted the offence—was directed against England alone, he did not see any logical reason why the Irish Bishops should have been asked to join in remonstrance. He alluded to this matter because the distinction implied in his Instruction, and objected to by some, was the very distinction most truly and wisely drawn by the Archbishop of Canterbury himself. Would that Her Majesty's Government had adhered to this principle, a forgetfulness of which had involved us in the unfortunate course of legislation which had already produced so much of evil. After this distinction had been laid down, and laid down by the Primate of England, he called upon their Lordships to explain, or, if they could, to justify, the extension of penal legislation to his Roman Catholic countrymen in Ireland, men who were neither authors nor abettors of the Papal Bull, and who, in respect to this transaction, had not committed any offence whatever against the Established Church or the State? He therefore contended that this penal legislation ought not to be extended beyond that part of the empire in which the offence was committed. But, independently of this objection, which rested on the grounds of justice, he ventured to assert that it was neither legally nor historically true that the two Churches had been identical in law and Government, or had been treated by the Legislature in the same manner, in early or in later times. Ireland stood in a very peculiar position in reference to all religious questions. In ancient times the Church of Ireland was of all Christian Churches the most free from the control of the Pope. A married clergy, the communion in both kinds, bishops appointed by domestic nomination, dis- 1475 tinguished Ireland from England under the Norman and Plantagenet kings. But Henry II. came to the throne, and Adrian Breakspear succeeded to the tiara. What then happened? The political ambition of an English King, combined with the ecclesiastical pretensions of the only English Pope ever elected—the ambition, he said, of an English King and of an English Pope introduced the ultramontane Popery of England into Ireland, and introduced it at the sacrifice of the freedom of the ancient Catholic Church of Ireland. It was to Henry and to Adrian we traced the subserviency of Ireland to the rule of Rome, which, up to that time, had never been admitted in any manner inconsistent with the liberties of the Irish Church. From the time of the Reformation, however, England, which had compelled Ireland to become Papal, punished and persecuted her for being so. Such was the origin of that mischief, the remote consequences of which we were now experiencing. It is a mistake to imagine that by the Reformation the two Protestant Churches were made one and the same. So far were the Protestant Churches of England and Ireland from being identical, that at various times they differed in articles, canons, discipline, and church government. It may, perhaps, be said that the Union cured all. But this was not so; for even at this day the Episcopacy was moulded after a different fashion. In Ireland, bishops were created by letters patent, which was not the case in England. All Irish bishops did not, like the English, take their seats in the Legislature; they attended in rotation only. The Legislature had frequently in our own times dealt with the Irish Church in a manner which marked the wide distinction existing between it and the Church of England: the Irish Tithes Bill and Church Temporalities Bill, the reduction of ten bishoprics, the abolition of church rates—had modified the position of that Church in a manner which marked its distinctness. Convocations could not be held legally in Ireland, though in England the form was still preserved, and the importance of that form was highly estimated by many. The constitution of the Ecclesiastical Courts was wholly different. The Court of Delegates was still maintained in Ireland, greatly to the edification of those, he presumed, who rejected the judicial Committee of Council as an Erastian and lay tribunal. In fact, the two Churches stood, in many particulars, in contrast rather 1476 than in conformity with each other; in contrast rather than in union, except in faith and doctrine, in which he hoped their identity would be eternal. Every investigation would prove that neither historically nor legally had the circumstances of the Church of England and those of the Church of England in Ireland been the same; and he was prepared to prove, before he sat down, that even in the Roman Catholic Church there was an important difference between the Roman Catholic Church in Ireland and in England, rendering it absolutely necessary that each should be dealt with in a different manner, and that to include them in this Bill would be the height of absurdity as well as of injustice. The Irish Roman Catholic Bishops constituted an ancient hierarchy, existing before the Reformation; the latter was the creation of the Pope within the last few months. The Pope sought to confer no ecclesiastical dignity in Ireland which had not been enjoyed for centuries; while the establishment of a hierarchy in England was an aggression (the word now used), or at least it was a novelty unsanctioned by usage, and unauthorised by the State. He had never justified the Rescript of September, 1850. He objected to it, as inconsistent with the common law of Europe; and he would not cease so to condemn it, till some precedent were produced to warrant a creation of dioceses in Europe by the sole authority of the Pope, without the previous consent of the State, whether that State was Catholic, schismatic, or heretical. But because Cardinal Wiseman, the Pope's nominee, as an archbishop in England, had made an aggression upon the Church of England, was that any reason why the Protestant feeling of this country should be excited to commit an aggression on the Roman Catholic Church in Ireland, which, under other circumstances, would not have been dreamt of? The bishops of the Church of Rome were bound to exercise certain ecclesiastical acts in their character of bishops of the diocese to which they were appointed; and these acts must be authenticated by their ecclesiastical titles. His noble Friend the Postmaster General, in his speech the other night, had absolutely denied that the Roman Catholic bishops were in the habit of affixing the names of their sees to ecclesiastical documents, and his noble Friend had said that they signed by their Christian and surnames only. He was wholly in error. There had been, it 1477 is true, no ostentatious use of their titles. He held in his hand proceedings of the Prelates from 1815 to 1851, in which, with one single exception, the names used had been the family names of the bishops. But were we quite certain that, after the excitement of the present Bill, the same prudent reserve would be maintained? Acts purely ecclesiastical, required an ecclesiastical signature, and were so signed. He (Lord Monteagle) would join issue with his noble Friend on this point, and in confirmation of his opinion would state that he had that day seen an episcopal document of the Most Rev. Archbishop Murray, signed "Archiepiscopus Dubliniensis;" and he had been informed that the document would not have been valid had it been signed in any other form. He would go further, and assert that every single appointment of a priest to a parish required to be so signed. Collations were acts of jurisdiction, not of order; and if made as by law and usage they could alone be made, they would hereafter bring the parties under the penalties of this Bill, and the act would be made unlawful and void. Even during the severities of the penal code, these forms of ecclesiastical jurisdiction had been adhered to. He held in his hand a certificate dated in 1732, which, whilst it proved the practice, also recalled a system which he was sure the framers of the Bill would be the last to wish to revive. It was as follows:—In quorum omnium et singulorum fidem, has dedimus proprio chirographo et sigillo munitas in loco nostri refugii, hac die secunda Decembris 1732.BERNARDUS Archiepiscopi Tuamensis, Consociæ Primas.FR. THADÆUS FRANCIS, Epis. Aladensis.FR. PETRUS, Epis. Ardaghensis.The Roman Catholic bishops of Ireland had been fully recognised at various times as such, in their episcopal character, and by various Governments. In a work recently published, and edited by the noble Lord now at the head of the Government, it was stated that when a former Duke of Bedford was Viceroy of Ireland, in 1757, he fully recognised the existence of Roman Catholic bishops in Ireland; and there was a lamentable contrast between the prefatory remarks of the Editor of the Bedford Correspondence, and the present unfortunate Bill, the epigrammatic point of which was made more striking when their Lordships were informed that the Duke of Bedford's fellow-labourer in the cause of liberality in 1757, the Peer who 1478 made a proposal for relaxing the penal code, bore the title of Lord Clanbrassill. The observations of Lord John Russell were deserving of note:—Even before the Duke of Bedford's acceptance of the lieutenancy, he had openly avowed that he should not govern on narrow principles of intolerance and exclusion. These sentiments were so acceptable to the Roman Catholics, that ten days after his appointment, exhortations to tranquillity were read from the altars in the Catholic chapels of Dublin, in which the hope that had been held out to them of a mitigation of the penal code, by some honourable persons, was noticed, and the blessing of Heaven invoked in favour of so generous a design.These prayers for the liberal Lord Lieutenant could hardly have been directed by an authority less than that of the Roman Catholic Archbishop of Dublin! This recognition of the Roman Catholic bishops and priests by the Government took place at a time when their existence was penal. The Roman Catholic Bishop of Cloyne, with the knowledge of the Government, issued a pastoral letter to his clergy in 1762 requiring them to use their influence as pastors, and to proceed with spiritual censures against the disturbers of the public peace. Dr. Troy, when Roman Catholic Bishop of Ossory in 1779, caused an excommunication of the Whiteboys to be read in all his chapels. Five years later, he circulated a pastoral letter against the Whiteboys, for which he received the formal thanks of the Lord Lieutenant, communicated to him through the hands of the Secretary. From the Report of the House of Commons on the state of the Queen's County in 1832 (Sessional Papers, No, 116), it appeared that Bishop Doyle had, as bishop, issued to the clergy and people of Kildare and Leighlin a pastoral instruction, in which he informed them, that whoever should abet or encourage the disturbers of the peace would make himself "a partner in their guilt, and a participator in their crimes." This pastoral letter was reprinted at the Government expense, and circulated through the police. Nor was it merely in questions of crime, in which moral and religious as well as political considerations were intermixed, that the Government of the day freely recognised the existence and employed the agency of the Roman Catholic hierarchy. They profited politically by their services on the great question of the Union, and through their influence the co-operation of the Roman Catholics was secured, without which, it is clear, the Union could not have been carried. In 1479 Lord Castlereagh's Correspondence, published by the present Marquess of Londonderry, these proceedings are forcibly described. From a letter dated July 9, 1799, and written by Dr. Dillon, Roman Catholic Archbishop of Tuam, to Archbishop Troy—and which begins "Most Reverend and dear Sir"—the writer desires that his name should be subscribed to the Resolutions in favour of the Union, adding that his "Vicar General and Dean had already signed." Archbishop Troy transmits this letter to Lord Castlereagh's private Secretary, using these remarkable words:—I inclose a letter from my Most Reverend confrèere of Tuam. I have not been inattentive to Lord Castlereagh's commission. You are now authorised to affix Dr. Dillon's signature thus: E. DILLON, D.D., Roman Catholic Archbishop of Tuam.This he (Lord Monteagle) considered most material; for here was the Secretary of the Lord Lieutenant, Lord Castlereagh himself, becoming the instrument in affixing an ecclesiastical title, which, as derived from a Rescript or Letter Apostolical from the Pope, would under the present Bill be declared "unlawful and void." In the same publication there is also a letter from Dr. Moylan, the late excellent Roman Catholic Bishop of Cork, to Sir J. C. Hippesley, which was forwarded to the Irish Government. In this letter Dr. Moylan states—The Roman Catholics are avowedly for the Union. The provision intended for the Roman Catholic clergy is a measure worthy of an enlightened Government. I have many obligations to Lord Castlereagh, who has been uncommonly civil to me. Give my respectful salutes to the Duke of Portland; I can never forget his polite attention to me.This connexion between the Roman Catholics and the British, as well as the Irish Cabinet, is also shown in a letter from Archbishop Troy to Sir J. C. Hippesley (9th February, 1799):—Previous to the separation of my brethren, (that is, of the Roman Catholic prelates,) certain preliminary points were agreed on, and submitted by me to Lord Castlereagh, who expressed his approbation of them, and probably sent them to the Duke of Portland. They are not to be made public till the business be concluded. Meanwhile, Dr. O'Reilly of Armagh, and Plunket of Meath, in conjunction with me, are authorised by our q ethren to treat with Lord Castlereagh on the urbject whenever he thinks proper to renew it.So their Lordships will have seen that, notwithstanding the 16th Richard II., and Lalor's case, the Roman Catholic prelates were known, acknowledged, and trusted by the Duke of Portland's Government, and by Lords Cornwallis and Castlereagh, who 1480 relied upon their assistance and agency in the most arduous affairs of State. They went, however, still further. As there was nothing too great, so there was scarcely anything too small for which the aid of these invaluable auxiliaries was not sought by the Government. They seem to have realised the description given by a philosopher of the uses made of the trunk of the elephant, either to launch a ship, or to pick up a sixpence. During the Union struggles, Sir John Parnell differed from his Colleagues, and lost his office as Chancellor of the Exchequer. He was succeeded by Mr. Isaac Corry, who had to face a popular constituency at Newry, labouring under the double disadvantage of being an unionist, and displacing a patriot. His seat was in danger. In his borough the Roman Catholics were numerous. Archbishop Troy was again called into the field, and with what success, will appear from the following letter. The Rev. Dr. Lennon, a Roman Catholic clergyman, gives to the Archbishop the following account of the election:—Newry,7th February, 1799.My dear Lord—I have the pleasure to inform you that your friend, Mr. Corry, was this day reelected for Newry. The Catholics stuck together like the Macedonian phalanx, and with ease were able to turn the scale in favour of the Chancellor of the Exchequer. He is very sensible of the efficacy of your interference, and their steadiness. No one but Mr. Corry knows that you wrote to me.Their Lordships should, however, remember that the deposit of these letters among the papers of Lord Castlereagh, is conclusive evidence of the knowledge which the Chief Secretary had of the means taken to secure the return of his Colleague. Such was the mode in which, for nearly a century, the. Roman Catholic bishops were dealt with, and confided in, by the British and the Irish Governments; and how must it be felt if the same order of prelates are now, for Ministerial convenience, subjected to penal legislation? How would the question be answered by Ireland, if the Imperial Government, after recognising the Roman Catholic bishops of Ireland year after year, from the year of the accession of the Duke of Bedford to the Viceroyalty of Ireland in 1757, down to the present time, should now suddenly turn round, and, without any cause or justification, declare, "Because the Archbishop of Westminster has committed an offence against the Established Church in England, we will in return inflict a punishment upon the Roman Catholic Archbishop of Dublin?" 1481 But the Government justified the extension of this to Ireland on the ground that the Apostolical Letters were issued in derogation to the Queen's supremacy; that Her Majesty's supremacy extended to Ireland; and that its vindication should be co-extensive with the supremacy. The Queen's peace is at least as important, and perhaps somewhat more intelligible than the Queen's supremacy. Yet, if martial law were proclaimed in Sussex, in consequence of an invasion, or if the Insurrection Act were required in Tipperary, that would furnish no reason for extending either measure beyond the district where it was demanded by circumstances. He remembered, indeed, an anecdote told by Sir Walter Scott, of a Highland chief who, having occasion to hang a delinquent at one side of his castle gate, strung up another on the opposite side "for the sake of uniformity." Uniformity would, in the present instance, be apparent, not real. In undertaking to demonstrate this, he must approach a part of the subject hitherto untouched, and of the greatest importance. He would venture to tell his noble Friend opposite that he would find in the practical working of this Bill, if it were ever enforced, elements of evil, of which their Lordships were not aware. Their Lordships knew it not: they were walking in the dark; but their feet were on the very verge of a precipice, To make this point plain, he must advert to the alteration lucklessly made in this Bill since its first introduction into Parliament. The first alteration to which the Government reluctantly assented, and that on division, and after two successive defeats, was to make the Bill apply more stringently to Ireland; the next was by declaratory words to revive the statute of the 16th of Richard II. The words of the learned Gentleman who had been the successful competitor with the First Lord of the Treasury in his career of penal legislation, were as follows, and they best explained his intentions:—He proposed to include all Rescripts and Briefs, and to make all Briefs and Rescripts sent into Ireland illegal equally. Why not let the country know that the Act of Richard II. was not to be considered an obsolete Act now? A few words would be proposed which would give that law a voice at the present time, substituting for the mysterious penalties of prœmunire on the introduction of these Briefs, the penalties declared sufficient to meet the exigency. The 16th Richard II. provided against bringing in bulls into this realm, or making notification of them, or any other execution whatever.The learned Gentleman did not say dis- 1482 tinctly, that by the amended Bill not only were these bulls prohibited, but all acts, jurisdictions, titles, done or created, in consequence of such bulls, were declared unlawful and void; yet this, too, was done. The most indispensable ecclesiastical acts come under this enactment. Who could undertake to assign limits to its possible consequences? No acts committed by the Popes, in the middle ages, had been more bitterly complained of, by the writers on the history of Europe, than those by which England and other independent States were laid under interdict: he was sorry to say that by this Bill we were ourselves, for the first time, about to place the whole of Ireland under a statutable interdict. If we rendered past episcopal appointments "unlawful and void," if we made the appointment of priests by bishops unlawful likewise, how could the functions of an hierarchical Church be performed? Here was his first fatal objection to this Bill, as dealing with the ancient Roman Catholic hierarchy of Ireland. In England, where the offensive Rescript had been applied, where the Pope had ventured to form new dioceses, and to create new jurisdictions, the operation of the Bill would not be so severe, or so stringent, as in Ireland, where the Pope's bull did not apply. This statement might startle their Lordships; but he would undertake to prove it. Cardinal Wiseman did not in any degree derive his episcopal character and orders from the instrument which purported to name him Archbishop of Westminster—that Papal instrument which the present Bill declared to be void and unlawful. He had been made a lawful bishop many years before, and still continued to be so. The Cardinal's episcopal station remains unaffected by our legislation; but the appointment of the Bishop of Kerry, as Episcopus Kerriensis, was at once an appointment to the bishopric, and the authority to the subsequent consecration. The Bill declares that instrument of appointment to be unlawful and void, together with all powers, jurisdictions, titles, &c., consequent thereto. In Ireland, the same instrument which created the bishoprics, also created the bishops; and if therefore Parliament invalidated the appointment, not only did it invalidate the territorial bishoprics, but the episcopal character of the bishops—it restrained the exercise of their episcopal functions, so far as Acts of Parliament had the power to restrain them; it checked all ordination of priests, all collation to benefices, all con- 1483 secration of places of worship, and all confirmation of the young. Was Parliament justified in inflicting such a penalty on the clergy or laity of Ireland, who had taken no part in this Rescript? Had the attention of the Government been called to those circumstances? The espiscopal character of Cardinal Wiseman is preserved, that of the Bishop of Kerry is destroyed so far as secular law has power to destroy it. He, therefore, again would ask, whether this strange result had been in the contemplation of the Government, or whether they could now defend or justify it? Thus he had proved that an unequal operation must attend this law, in England and in Ireland. The same unjust inequality could also be proved to exist in different parts of Ireland. Before he entered into this argument he must refer to the questions which he had put to his noble and learned Friend the Lord Chancellor. The proposition he was now prepared to establish, was connected with those questions. He had asked, "If a Roman Catholic diocese bears the same title, and is conterminous and identical with a diocese in the Established Church, is such Roman Catholic diocese 'a pretended diocese' under Section 1 of the Ecclesiastical Titles Bill? Is the Papal instrument appointing to such diocese illegal and void under such Bill; and is the jurisdiction, authority, pre-eminence, or title, conferred, or proposed to be conferred, by such appointment unlawful and void under such Bill?" As well as he could understand the answer which he had received from his noble and learned Friend, it amounted to this, that such diocese would come under the 10 George IV. only, it being a "real" and not a "pretended diocese." [The LORD CHANCELLOR assented.] He (Lord Monteagle) had next questioned his learned Friend as to dioceses which were not conterminous in boundary or identical in area. He had asked, "If a Roman Catholic diocese is not conterminous or identical with a diocese of the Established Church, is such Roman Catholic diocese 'a pretended diocese' under Section 1 of the Ecclesiastical Titles Assumption Bill? Is the Papal instrument appointing, or purporting to appoint, to such diocese unlawful and void under such Bill; and is the jurisdiction, authority, pre-eminence, or title, unlawful and void under such Bill?" "Those dioceses," replied his noble and learned Friend, "are pretended dioceses, and come under the penalties of the present Bill." The noble and learned 1484 Lord had also said that all Roman Catholic dioceses which, whether bearing other or the same names as the existing dioceses in Ireland, were not conterminous with dioceses of the Established Church, were "pretended sees." If that were so, the penalties of this measure would apply most capriciously in Ireland; they would act differently in different cases, according to the accident of geographical limits, without any relation whatever to the character of the imputed offence. The 10 Geo. IV. would govern the "real," this Bill the "pretended" dioceses, and the greater penalty would await what must be considered as the lesser offence. Now, this will at once throw the law, and Ireland, into confusion. Archbishop Murray was asked by the Committee of the Lords, in 1824, "Are the circumscriptions of the Roman Catholic dioceses the same as those of the Established Church?" His answer was short, but conclusive. "They are not the same." He (Lord Monteagle) had carried the inquiry further. He found it stated in the Report on Public Instruction, 1835, "That the ecclesiastical division of parishes is not identical with the civil division of parishes; and in the Roman Catholic Church a parochical division is adopted totally distinct either from the ecclesiastical or civil." Hence in very many cases the Roman Catholic dioceses, which are formed of an aggregate of parishes, the dioceses of the Roman Catholic Church, are not conterminous with the real dioceses. Such is the case with Kerry, Meath, Kilmore, Ardagh, Ross, Galway. In these, and in all similar cases, the penalties of the present Bill would apply. In other dioceses being identical with the established sees, and therefore, not to be considered as "pretended," but "real," the penalties of this Bill would have no effect, and parties would be subject to the penalties of the Relief Act only (10 Geo. IV.); no common informer could in such case sue for the 100l., and the declaration of the invalidity and unlawfulness of the prohibited Acts would have no operation. He now asked their Lordships whether the law of this country or of any other ever exhibited such a contradiction, and such an anomaly in legislation? Where did such another legal monstrosity exist? Where had it ever existed? He must once more press his question, and ask on what authority this Bill was framed so as to include Ireland. He understood the Lord Lieutenant of Ireland was come over. He wished 1485 that he was present to give him some reply. The people of Ireland had seen with deep concern that the noble Earl had given his proxy in favour of this Bill; but he thought their Lordships were entitled to have the opinion of that noble Earl, given either in the constitutional form of despatches laid on the table, by Her Majesty's command, or by his presence in that House, which would be still more satisfactory. If they were deprived of the Lord Lieutenant's testimony in one way or the other, it would be a signal instance of indifference to the interests of Ireland, and of want of duo respect to their Lordships. He was glad to have his noble and learned Friend (the Lord Chancellor) present, and would call his attention to one further question—the law declared and enacted that the specified Briefs were unlawful and void. He wished, then, to know whether all persons who acted under such briefs, and carried them into effect, were not indictable for having joined in an unlawful act, and, if so indictable, whether any person might not prosecute, as of common right, without asking the consent of the Attorney General, which was only made requisite in case of proceeding for the 100l. penalty? If so, the most fearful confusion would ensue.
The LORD CHANCELLOR
observed, that all acts done by a bishop, by virtue of his spiritual office, would be perfectly lawful.
§ LORD MONTEAGLE
The noble and learned Lord begged the question, by assuming that all the acts in question were spiritual acts. This was not the case—not even the act of consecration would proceed except as founded upon one of these Briefs, which the Act declared both unlawful and void. The first question put to a bishop-elect, prior to his consecration, was—Habetis mandatum apostolicum? The letter must be produced. The command was then given Legatur. The letters were read before the ceremony of consecration could be proceeded with. This Bill declared illegal and void all rescripts, letters apostolic, &c, proceeding from Rome; and he (Lord Monteagle) feared that he was justified in coming to the conclusion that any act performed by virtue of such rescripts, &c, would be henceforward illegal and void, and that parties carrying into effect such illegal acts would be guilty of a misdemeanour. He had, indeed, in his possession an opinion given him by a learned Friend, in which it is stated, "That 1486 the assemblies for the ceremony of creating the Bishop, the demand for the mandatum apostolicum, its production, the reading of it, &c, are cogent evidence of a conspiracy to publish and put in use such an instrument, and as such, like any other conspiracy to do any unlawful act, would be subject to indictment." There was yet one other question which he wished to put to the noble and learned Lord. He wished to know whether the appointment of vicars-apostolical would be illegal after this Bill had passed. He could not but recollect that, whilst another learned Lord (Lord Lyndhurst) spoke lightly of Lalor's case, its authority as a decision was stoutly maintained by the Lord Chancellor. But that proceeding was instituted against Lalor for acting as vicar-apostolic, not as bishop. Now if this was to be the state of the law, what must follow? Under the Relief Act it was made penal to assume the title of any real see; under this Bill it was prohibited to take the title of a pretended see; and all acts done under the Papal appointment were made unlawful and void. If, in addition to this, the authority of Lalor's case is made conclusive, as stated by the noble and learned Lord, and the appointment of vicars-apostolic is also made penal, how would the Roman Catholic religion be carried on? Her Majesty had been graciously pleased to say that She would preserve unimpaired the religious liberty of Her subjects; but, notwithstanding that declaration, Her Majesty's Ministers had brought in a Bill which, on the supposition he had stated, would strike a fatal blow at the whole Roman Catholic hierarchy of Ireland, the priests and the laity. Upon these grounds, and with the view to avert such pressing danger, he prayed their Lordships to agree to the Motion with which he should conclude—That it be an Instruction to the Committee of the whole House on the Ecclesiastical Titles Assumption Bill to insert a clause to exempt Ireland from the operation of the said Bill.
The LORD CHANCELLOR
said, that after the debate on the second reading, he did not expect that he should be called upon to state his opinions seriatim as to the effects of the measure; but as he had troubled the House the other night oft the general question at such great length, he should now confine himself to the observations and questions of his noble "and learned" Friend; and be believed his answers would be consistent with every Catholic and every Protestant book on the 1487 subject. In the first place, he would observe that there was a great difference between the order of a bishop and the jurisdiction of a bishop—a difference which ought not to have escaped the attention of the noble Lord, seeing that it was clearly pointed out in Catholic and Protestant treatises upon the episcopal order. A person might exercise episcopal jurisdiction if that character were attached to him by competent authorities; but until he was consecrated bishop, by the imposition of hands, he could not perform spiritual functions, and those functions he might perform quite independently of his possessing territorial jurisdiction. The two offices were quite distinct. The holy character or sacerdotal functions, therefore, of a bishop, would not be interfered with in any way by this Bill. Every spiritual function which Catholic bishops had hitherto exercised, or might hereafter exercise, would be completely available, and unim-peached by this Bill. A noble Friend of his had intimated that if this Bill were passed, marriages and other acts performed by Roman Catholic bishops and priests would be illegal; but he (the Lord Chancellor) denied that the Bill would have any such effect. The character of "bishop" was that which gave the authority to do the acts which he performed, and that function would remain entire to all intents and purposes. On a former night he came down with his books, dog-eared and doubled down, for the purpose of answering any question that might be put to him in reference to the probable operation of the Bill; but he was not now so prepared, because he did not expect that at this stage he should be questioned as he had been by the noble Lord. He had, however, brought with him one book, written by an eminent Catholic, a professor at Geneva, from which he would read this extract: "Bishops in partibus can perform episcopal functions as well as bishops in ordinary, but they cannot perform such episcopal duties as are attached exclusively to any particular diocese under the jurisdiction of another bishop." The Roman Catholic bishops in this country, therefore, after the passing of this Act would be fully competent to perform every spiritual duty which might devolve upon a bishop of the Church of Rome. The noble Lord (Lord Monteagle) had asked whether if the Pope should appoint bishops under similar titles and with precisely similar limits of territorial jurisdiction as 1488 were now vested by the Crown in the bishops of the Established Church in this country, were the sees so constituted pretended sees? His answer was, "No;" but, of course, such appointments by the Pope would be the imposition of unauthorised authorities unknown to these sees. The next question was, supposing, instead of appointing a bishop to a diocese created by the Crown, the Pope chose to erect, or to attempt to erect, a bishopric bearing the same title with a diocese in the Established Church, but which was not conterminous or identical therewith, was such a Roman Catholic diocese a "pretended diocese" under this Bill? He (the Lord Chancellor) said it would be a pretended see. Another question was, whether the appointment of a vicar-apostolic, by rescript or other Papal instruments, would be illegal under this Bill? His answer to that question was, this Bill had nothing to do with the appointment of vicars-apostolic; it related simply to documents issued by the Pope creating archbishops, bishops, and deans with titles taken from districts in this country. Another question which had been put to him was this—would a person accepting briefs, rescripts, or letters-apostolic from the Pope, which this Bill declared to be unlawful and void, be guilty of a misdemeanour? His answer was, that when an act was declared by the statutes to be unlawful and void, it did not necessarily follow that the commission of it constituted an indictable offence. A deed, for instance, might be executed in a manner which would render it void, but the parties executing such a void act would not be liable to an indictment. They must not, therefore, content themselves with finding that an act was unlawful and void, they must also see in what respect it was unlawful—whether its commission constituted an offence; and it was probably unnecessary to remind the noble Lord that when an offence was created by statute, if no punishment were attached to it, it was a misdemeanour. It had been said by a noble Earl (the Earl of St. Germans) that he (the Lord Chancellor) had made the other night a "No-Popery speech." He believed that he had made more sacrifices than that noble Earl had ever made in the cause of the Roman Catholics. He had kept up a most expensive and laborious contest at Newark as the advocate of the Catholic claims; and he defied any man to be a warmer friend to religious liberty than he 1489 was. The noble Earl had alluded to an expression which he (the Lord Chancellor) had used elsewhere. He was sorry that he used it, for he never intended to offer the slightest disrespect to any clergyman or any individual whatever. But the words had been quoted in that instance, as in too many others, apart from the context. When he alluded to the Cardinal's hat, it was in connexion with that hat being used in derogation of the rights and prerogative of the Crown. He was a sincere friend of religious liberty, and when he had mentioned the names of those great men who were the sincerest lovers of religious liberty, the noble Earl had said, "Do not go into and use the common-places of religious liberty." He (the Lord Chancellor) hoped that their Lordships would not be led away by the cant of religious liberty. He trusted that they would give to their brethren of the Roman Catholic faith the fullest enjoyment of all their religious rights; but he hoped they would, at the same time, take care that those rights should not be allowed to advance, so as to molest our own.
§ LORD CAMOYS
said, that he should support the Instruction which had been moved by the noble Lord opposite (Lord Monteagle). He was not able to vote for the second reading of this Bill, because it contained a principle fraught with the greatest injustice to Ireland; but, on the other hand, he admitted that an outrage had been committed, and that there had been a violation of the public law of Europe, and he also admitted that it was the duty of the Government to give some answer to that outrage, and to that violation of the public law, even if they had not been called upon to do so by the people of England; and as the Bill had received the sanction of so large a majority in the other House of Parliament, and in their Lordships' House, he did not feel it his duty to vote against this answer to the aggression. The question, then, was, what ought to be done? and this question was more easily asked than answered, and he fully agreed with the advice given on a former occasion by a noble Earl (the Earl of Derby), that inquiry ought to precede legislation. The changes which had been made in the Bill, and the doubts which had been expressed as to the character of the offence which had been committed, had convinced him still more of the necessity of inquiry. When such a difference of opinion prevailed as to the nature of the 1490 offence committed, it was impossible without further investigation to legislate properly on the subject. He must now enter his solemn protest against the application of this Bill to Ireland—for the circumstances of the two countries were entirely different, the Roman Catholics being the great majority in one country, and the Protestants in the other. In England our legislation would be prospective, but in Ireland it would be retrospective. The declaration which made briefs, rescripts, &c, unlawful and void, was a declaration against the validity of ordination and marriages in Ireland, for consecration was thereby rendered illegal. The ordination of priests was conferred wholly through the jurisdiction and authority of the prelates, and the ceremonies performed by these parties would be illegal and void if the jurisdiction and authority of the prelates who ordained them should be denied. How was it possible to conceive that in spite of the Emancipation Act, and in spite of the decisions in the Irish courts, the appointment of these prelates could be considered illegal and void? Now, as to the interpretation to be put on the words of the Bill. When the Courts of Law were called on to interpret the law, they did not refer to the opinions expressed in Parliament, but ascertained the intention of Parliament from the Act itself; and that being so it was the duty of their Lordships so to alter the Bill that it should not run the risk of being interpreted contrary to the interpretation of the noble and learned Lord on the woolsack. There was one way of getting out of the difficulty without lessening the stringency of the measure, and that was by not making the Bill retrospective in Ireland. By making it prospective in both countries, they would meet the necessities of the case, and the people of Ireland would, at least, have notice of what was intended to be done. It was said that the Bill would be a dead letter, but it might not be so, especially after the insertion of the informers' clause; and when their Lordships recollected the speeches which had been made in and out of Parliament, and the ill feeling which had been awakened against Catholics, they could not but see that informers were likely to arise in abundance, especially as a successful informer would be looked upon as a popular character. He was far from thinking that the Bill would become a dead letter; on the contrary, he thought it would be most vigor- 1491 ously acted upon. As respected Ireland, be was persuaded that the Bill would open anew the Catholic question. Their Lordships would recollect the former Catholic agitation, and would remember how they were encompassed by petitioners, and what an excitement existed through the country, especially in Ireland, where the effects of it had hardly ceased even at the present day. This state of things would be revived if the Bill bore the meaning which he (Lord Camoys) attached to it. And he would add that, in his opinion, the Irish Catholics ought to agitate (in a constitutional manner) until they gained the repeal of this unjust Act. He believed their Lordships had made a great mistake in introducing the clause into the Diplomatic Relations with Rome Bill, which prohibited the receiving a Minister from Rome who was an ecclesiastic, because, whatever the inconveniencies which might attend the presence of a Nuncio in this country, they would be counterbalanced by the advantages which would have been derived if the Bill had passed in its integrity. All the questions which their Lordships were now discussing would have been avoided; for they would have been left, not in the hands of an irresponsible Cardinal, but under the control of a responsible Minister. He would merely add a word as to the position in which the Roman Catholics in this country had been placed by the establishment of this hierarchy. He must say that the establishment of that hierarchy had been a most fatal thing for the Roman Catholics of this country—they had suffered most severely in their social position; for whatever difficulties Roman Catholics might have have had in obtaining places of honour, trust, and emolument, these difficulties were considerably increased at the present moment. He believed that now it would be impossible for any Roman Catholic to be returned for any place in England or Scotland. Entertaining the opinion that it would be inexpedient to extend the measure to Ireland, he should give his support to the Instruction moved by his noble Friend.
§ VISCOUNT CANNING
said, he did not desire to enter into the references made by the noble and learned Lord on the woolsack to bygone times, thinking that it was scarcely safe to hazard conclusions on such grounds; but he could not help recalling to his recollection the fact that on the last occasion of the noble and learned Lord's appearance upon the hustings at Newark, it was 1492 in opposition to a learned Gentleman (Sir F. Thesiger) whom he might now call (without offence, he hoped, to the noble and learned Lord) the author of this Bill. He thought their Lordships would agree that there was no accounting for old hostilities and new friendships. In regard to the differences between the noble and learned Lord and the noble Lord (Lord Monteagle), there were one or two points upon which the noble and learned Lord had hardly done justice to the statements of the noble Lord, especially as to the distinction between orders and jurisdiction, and the difficulties the noble Lord had pointed out with respect to the mandatum apostolicum. The difficulty was this:—The mandatum apostolicum was, by the law of Rome, necessary before the Pope could ordain or cause to be ordained a bishop, and it must confer or name the see to which he was to be ordained. In fact, it was to the bishop what a title to orders was to a clergyman on his ordination in the Church of England. Upon the receipt of this mandate, the bishop could be ordained. But if by any act of the Legislature the see to be named in it was made, in fact, no see, and if any document describing it were made illegal and void, and incapable of being acted on, then not only the nomination of the bishop to that see, but his right to perform his functions, would be invalidated, and a question might arise whether his orders would not also be invalidated. There was another point to which the noble and learned Lord would have done well to allude, but to which he had carefully avoided alluding—the inconsistency of the Bill in imposing a more severe penalty on the minor offence, and a less severe one on the greater offence. In the first clause all "such Bulls, Briefs, and Rescripts" were declared void and illegal; that is, "such Bulls, Briefs, and Rescripts" as those mentioned in the preamble "under which divers of Her Majesty's subjects had assumed the titles of archbishops and bishops of pretended provinces and sees." So that a Bull, Brief, or Rescript relating to a "pretended" see or province, was declared illegal and void, and the offence of assuming the title of archbishop or bishop of a pretended province or diocese, was dealt with more severely than in the case of a province or diocese not pretended; and no similar enactment was made as to a similar instrument relating to a see or province not "pretended," but a see or province existing in the Established Church. He had 1493 risen, however, principally to explain why he should vote against the Instruction proposed by the noble Lord to the Committee to except Ireland from the operation of the Bill, although he was compelled likewise to oppose the passing of the Bill at every stage; and this being so, he was anxious to avoid the reproach of inconsistency for losing an opportunity of diminishing the stringency or restricting the operation of the Bill, and to show reasons for rejecting the proposition for exempting Ireland. He had this great and overruling objection to the adoption of the Instruction—that the Bill had been recommended to Parliament from the Throne (and, so far as could be seen, the recommendation had been accepted) upon the ground that the act of the Pope had been an attack upon the supremacy of the Crown, and that the Bill was necessary to vindicate it. Whether this were so or not, did not matter for the present argument, since Parliament had assumed that it was so; and he would be no party to the drawing of a distinction between the value of the supremacy in one part of the United Kingdom and another. He could not but observe upon this topic that of all the grounds upon which the Bill had been recommended, none had been less effectively supported than this of the Royal supremacy, and upon none had the arguments of the opponents of the measure been less answered. The proposition of the minority, put in its broadest form, was this (and it was left wholly untouched)—that the Crown could not be supreme in a matter with which by the law and constitution it could not deal, and that such a matter was the appointment of a Catholic bishop for a spiritual guidance of any of Her Majesty's subjects in any portion of Her realm. It was said in reply, that such Catholic bishoprics being designated by the name of a city or see within the Queen's dominions, constituted it more than a spiritual and made it a temporal authority, and that a territorial title, by the principles of the constitution, could only emanate from the Queen. But he would answer that it had not been shown that the authority which a Catholic bishop thereby attained ceased to be spiritual. He admitted it to be wider and more uncontrolled, and that the bishop would be better enabled to associate his own authority with that of his brother bishops; but he denied that the authority became more temporal or less spiritual that it was before. With regard to the territorial title, he replied that the 1494 argument was founded on a confusion, if not of words, of ideas. The titles were not titles in the sense in which the law considered titles—as appellations or appointments, not merely commanding or conferring deference or respect, but a position the possession of which Was confirmed by law. Neither were they "titles" in the sense in which titles were said to emanate from the Crown, the basis of which doctrine, as laid down by Blackstone, was, that all honours and titles were by the law presumed to be rewards of services rendered, or accompanied the capacity of rendering such services, to the Crown: of which services, therefore, the Crown was the most competent authority to judge. It was clear that, on these principles, the Crown had no concern with these titles of the Roman Catholic bishops. There was another consideration upon which he was disinclined to the exemption of Ireland from the Bill. A noble Earl opposite had, in supporting the Bill, hinted an opinion that the union of the Church of England and Ireland was the work of an Act of Parliament', and that what Parliament had created Parlaiment could destroy, so that there ought to be no difficulty in dividing England from Ireland as respected the operation of this Bill. He did not desire to see Acts of Parliament so important as those which connected the two countries dealt with as lightly as turnpike or railway Acts; and he feared that there were parties in Ireland who would not be slow to take advantage of such a principle. There was yet another and still stronger consideration which led him to reject the Instruction proposed by the noble Lord, namely, that the Government would not, and if they would they could not, apply the law to Ireland. Only one or two noble Lords had ventured to predict that the Bill would be obeyed in Ireland, one of whom, the learned Lord on the woolsack, had accompanied his prediction of obedience with an intelligible menace of more stringent legislation in the event of disobedience—a significant indication of a degree of doubt as to his own prophecy. There were some passages in the history of Ireland which led him (Viscount Canning) to more than doubt upon this point. The bishops and dignitaries of the Roman Catholic Church in Ireland were, up to a recent period, in the eye of the law, exiles. By an Act of the 8th Anne they were prohibited from entering the country. The law was not executed, but was felt to be so galling and unjust, that in 1782 an Act 1495 was introduced providing that Roman Catholic archbishops and bishops should be permitted to remain in Ireland, on condition that they did hot assume any rank or title as such, or that, if they did, they should lose the benefit of the Act. The Act, however, was so little enforced, that in 1793 a petition was presented to the Protestant Irish House of Commons, upon the subject of Catholic Emancipation, from the Roman Catholic archbishops and bishops of Ireland, who all signed themselves, not merely with their names but with their sees—"Roman Catholic Archbishop of Dublin," "Roman Catholic Archbishop of Cashel," "Roman Catholic Bishop of Killaloe," and so on. This was in the Protestant House of Commons, in the period of Protestant ascendancy. And though Sir H. Cavendish drew the attention of the House to it, and said, "I wish the word 'titular' had been prefixed to the word 'bishop;' they assume titles which do not belong to them, and which the law will not recognise; and the words 'Roman Catholic' do not at all remove the objection"—yet not a word was said in support of this objection, notwithstanding that Dr. Duignan, that staunch defender of Protestant ascendancy, was present at the time. The petition, therefore, thus signed in open violation of the law, was received; and remembering the time at which this had occurred, he (Viscount Canning) conceived he might safely predict that the Government had neither the will nor the power to enforce such a law as the present in Ireland. If he thought that they were at all in earnest in an intention to enforce the law in Ireland, he should try to reconcile himself to the inconsistency of excluding Ireland; but he believed that the Bill would not be on-forced in that country, at all events with the slightest severity or stringency, and, believing this, he should vote against the Instruction proposed by the noble Lord.
§ LORD CRANWORTH
said, their Lordships having decided in favour of the second reading, he should speak simply to the precise proposition now before them. The ground of that proposition of the noble Lord appeared to be that the Bill would, if applied to Ireland, inflict a grievance it was difficult to magnify, and impossible, without horror, to contemplate. His noble Friend had seemed to suppose that the operation of the Bill would be such as to render insecure and invalid marriages, and all the orders and offices of the Roman Catholic religion performed by Roman Catholic 1496 priests in that country. If he could concur with his noble Friend in that view of the subject, he would certainly say that they must either give the Bill altogether up, or exclude Ireland from its operation. But he did not concur in that view, for the reasons which had been already pointed out by his noble arid learned Friend on the woolsack. He believed it to be a principle of law never controverted that a bishop derived his spiritual functions, not from any Rescript of the Pope, but from the ordination of the bishops; and although it might be that ordinarily the bishop was consecrated only on the receipt of a Rescript from Rome, and that in consecrating without such a Rescript the bishops concerned might not be acting in canonical obedience to the Holy See, yet de facto there was a consecration, and the party became a bishop, according to the legal maxim, Fieri non debet, factum valet. The most exact analogy was afforded by the title to orders usually obtained by a clergyman on ordination in the Church of England. If the title to orders were not obtained, would any one suggest that the ordination would be invalid? The sole question was, whether there were any insuperable difficulties in applying the Bill to Ireland. Now on what ground was the measure to be justified? Upon this: that the act of the Pope was an unwarrantable interference with the prerogatives of the-Sovereign of this United Kingdom; so that, unless some overwhelming necessity were pointed out to justify the exemption, it was utterly impossible to exclude one part of the kingdom from the Bill; and it would be far more logical to say, "You cannot include Ireland; you ought not to enact it at all without including Ireland; therefore you cannot enact it all." With regard to the precedent the noble Viscount (Viscount Canning) had referred to, of the petition presented to the Irish House of Commons in 1793, by the Roman Catholic prelates, it must be observed that they styled themselves "Roman Catholic" archbishops and bishops of such and such provinces and sees, which made all the difference; and if the same course had been adopted in the recent proceedings, not one in a hundred would have made any complaint. For if Cardinal Wiseman had called himself "Roman Catholic" Archbishop of Westminster, there would have been no objection—and it would have been a homage to the feelings of the people of this country, which would have prevented any opposi- 1497 tion. It had been said, that the Bill would enable parties to prosecute the Roman Catholic prelates by indictment for misdemeanour, as well as proceed for penalties; but that was not so (although he acknowledged that at first he had conceived that it would be so), because there were no words in the Act making any offence, or enabling any person to procure indictment upon it, notwithstanding that the bulls or rescripts were declared void and unlawful, and that the second clause imposed pecuniary penalties on parties putting them in use; so that there could be no prosecution except on the second clause simply for the penalty. He did not think the question was at all important, whether the "sees" or "provinces," the titles of which were assumed, were "pretended" or not, that is, the new sees and provinces, or the old ones; for if the latter, the Act of 1829 would apply; if the former, the present Bill.
The BISHOP of OSSORY
said, that he could not plead in excuse for addressing their Lordships, that he had any fears that the Amendment before the House would pass. He had no such fears. Their Lordships had, on a former night, by a vast majority, voted for the second reading of the Bill, professedly on the ground that a foreign Power had committed an act of aggression, derogating from the prerogative of the Crown, and the independence of the country. And he had no apprehensions that they would proclaim to the Power which had committed this wrong, that he was at liberty to repeat it in one part of this realm, but that he must abstain from.all such aggressions in another part; for that they, the Parliament of this empire, were resolved to resist him where they believed him to be weak, but were prepared to yield to him where they knew him to be strong. And as little, he was very sure, were they prepared to proclaim to the subjects of the Crown who were his instruments in offering this insult to the Crown and the country, that they should enjoy impunity in that part of the United Kingdom where they were numerous, but that they should be prevented from lending him this aid where they were few. Such a mode of proceeding would make all legislation contemptible. It would not only invite aggressions of the same kind in Ireland, but it would give an impulse to combination and agitation everywhere which nothing could resist. It would publish to the malcontents, not on this occasion only, but upon all on which either the feelings 1498 or the interests of numbers are opposed to a measure, "Combine and agitate, clamour and threaten, disobey the law in masses sufficiently numerous, and you have nothing to apprehend from Parliament." Neither in Ireland nor in England could such a proclamation be made without utter discredit to the Legislature, and in the issue great danger to the country; and he felt no fears that the Amendment which so distinctly made this proclamation, would be carried, or even that it would be supported by a respectable minority in their Lordships' House—respectable he, of course, meant in point of numbers. And if he had entertained any such apprehensions, the speech of the noble Mover of the Amendment would have done a good deal to set them at rest; for the argument on which he based his recommendation to their Lordships to legislate differently in this matter for the two parts of the United Kingdom, amounted to a distinct confession that such legislation in the case was incompatible with the maintenance of the union between the Churches. By the pains which he had taken to prove, either that the union between the Churches had never existed, or that it had been dissolved—he (the Bishop of Ossory) did not know which—the noble Mover had acknowledged that that union stood directly in the way of his Amendment; and that, unless he could in some way dissolve the union, he could not expect to have their Lordships on his side. This, as he had before said, had set his (the Bishop of Ossory's) mind at ease with respect to the fate of the Amendment; for if there were no other reason against adopting it, except that which the noble Mover's own speech supplied, he could not fear that their Lordships would give such a fatal wound to the union between the Churches, which in the issue must be such a fatal wound to the union between the countries, as this mode of legislating was confessed to be, by the noble proposer of the Amendment himself. He felt then, for that matter, he might safely leave the question where it stood. But he desired, before he sat down, to correct one or two statements or assumptions in the noble Lord's speech. First, as to the union between the Churches, he would not deal with the noble Lord's argument, which if it were good against the union of the two Churches, would equally disprove the union between the countries; but he would take leave to set the noble Lord right as to some matters of fact. 1499 The noble Lord was altogether mistaken in supposing that there was any difference between the Articles in England and Ireland. The Thirty-nine Articles had been formally adopted by the Church in Ireland in 1634. The Ritual had been the same from the first days of the Reformation. The Morning and Evening Prayer, the Sacramental services, the Ordination and Consecration services, had all been the same from the first; so that the Churches were one in spirituals long before the union in temporals took place. And they were so treated not merely by the noble Lord, who seemed to think that the Churches were first made one at the time of the Union between Great Britain and Ireland; but they had been regarded as one, and treated as one, by Parliament often and long before. To give only the most important example. In the Articles of Union between England and Scotland it was provided—That the Sovereign, at his or her Coronation, shall ….. take and subscribe an oath to maintain inviolably the said settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established, within the kingdoms of England and Ireland, the dominion of Wales, and the town of Berwick-upon-Tweed, and the territories there-unto belonging.Here is a very solemn Act of the Legislature, nearly a century before the Act of Union between Great Britain and Ireland, in which, not only is there a provision for the permanent maintenance of the Church of England and Ireland as one Church, but a very clear recognition of the fact that they were one; and other and earlier acknowledgments of the same fact could be produced if it were needful. But instead of pursuing that point, which he hoped was sufficiently clear, he wished to take notice of an assertion or assumption of the noble Lord's affecting the relation which the Reformed Church and the Roman Catholic Church in Ireland bore to the ancient Church of that country. The noble Lord spoke of the Roman Catholic Church in Ireland as the Ancient Church of the country; so as to show that he laboured under what he (the Bishop of Ossory) believed to be a very common error with regard to the Church history of that country—an error which he was glad to take that opportunity of correcting. Those who entertained this belief as to the Roman Catholic Church in Ireland, of course believed that the Reformed Church was a new Church in that country, brought 1500 in at the time of the Reformation; and, following out that view, the common impression was, that at that period the temporalities which had theretofore been enjoyed by the Ancient Church of the country, had been taken from it, and transferred to the New Church, which had since continued in the enjoyment of them. It seemed very strange that those who entertained this impression, never had the curiosity to look after the Act of Parliament by which this transfer was effected. No one, he supposed, could imagine that such a process could have gone on sub silentio. No one could imagine that one Church could have silently slid out of its temporalities, and another Church silently slid into them. It must be evident that at that period of our history, if indeed at any period, no such change could have been effected without an Act of Parliament; and it would have been well if those who took up the common error without examination, had been led to make the obvious inquiry, what was the Act of Parliament by which this transfer was made? For when they discovered as they would have discovered, that no such Act existed in our Statute-book, they might have been induced, first, to question the reality of the transaction which they had been taking for granted, and then continuo the investigation so far as to satisfy themselves that the whole popular impression of the facts was not only without foundation in the history of the period, but Was absolutely and conclusively contradicted by it. The true state of the case was, that at the time of the Reformation, there were not, as was supposed, two Churches, an old and a new one. There was at that time, and for a good while after, but one Church—the Ancient Church of the country. It was at a subsequent period that the New Church arose. The Ancient Church, which had been corrupt before the period of the Reformation, then reformed itself. But it did not thereby become another Church. It continued the same Church—corrupt before—reformed afterwards—but still the same body—the same Church. In 1560 the Reformation was introduced into Ireland, so far as it was introduced by public authority, by two Acts of Parliament, which were the same, mutatis mutandis, as the two Acts by which it had the year before been established in England. One of these Acts was the Act of Supremacy, and the other the Act of Uniformity (Elizabeth's Act of Uniformity). By the 1501 former the usurped supremacy of the Pope was abolished, and the supremacy of the Crown, in the sense in which it was therein defined, was asserted; and the oath of supremacy imposed. By the other the Romish mass, and the Latin service were to cease, and the English liturgy, as contained in the Book of Common Prayer, was put in its place. It is plain that in these two Acts the whole change from the Romish to the Reformed communion was contained. And when the Bills were brought into the House of Lords in Ireland there were present twenty-three temporal and twenty spiritual Peers. Of these latter there were only two who opposed the measures. The rest united with the State in passing them in the House, and in carrying them out afterwards. So that the whole hierarchy, with the inconsiderable exception of the two dissentients of whom he had spoken, embraced the Reformation. The parish priests submitted, for the most part, to the change; and the congregations attended at their parish churches as before, during a considerable part, if not for the entire of Elizabeth's reign. There the whole Church may be said to have settled down at once quietly in the Reformation; and this happy state of things continued until the Pope consecrated bishops for the purpose of disturbing it. To what an extent the attempt succeeded was better known than the causes to which it owed its success. But it was beside his purpose to speak of those causes. His object was to make it clear that the Roman Catholic Church, which originated in this act of the Pope, was not and could not be the successor of the Ancient Church of the country. It must be plain from the facts which he had stated, that the true and only successor of the Ancient Church of Ireland was the Reformed Church. The bishops who had embraced the Reformation were all bishops who were in possession of their sees at Mary's death; and they must, therefore, be allowed by Roman Catholics to be successors of the ancient bishops of the Irish Church. They continued this succession, which has been since uninterruptedly kept up without affording any room to allege that that line has ever been broken; and from them, and through them from the ancient bishops of the country, the present bishops of the Reformed Church in Ireland derive their orders, by regular ecclesiastical descent. As to the Roman Catholic Church, on the other hand, its bishops were not derived 1502 from the ancient bishops in any way. There were, as he had said, but two of the hierarchy who remained in communion with Rome. Whether the ancient succession could have been continued through them, it was unnecessary to inquire, for, in fact, no such attempt had been made. The bishops from whom the present bishops of the Roman Catholic Church in Ireland derive, were consecrated abroad, and sent into the country from time to time. They did not themselves derive their orders from the bishops of the ancient National Church; and, therefore, could not connect those whom they consecrated with those bishops, or with that Church. They formed a new succession in the country. We regard them as schismatical. But even those who hold that, being appointed by the Pope, they are the legitimate bishops, whatever the laws of the Church may say to the contrary, even they cannot maintain that they are the successors of the ancient hierarchy. They are a new line of bishops, and their Church a novel and an intrusive Church. Their origin dates from a period subsequent to the Reformation in Ireland; and they cannot, as is plain, trace their succession higher in that country. The fact however was, he said, that even after the foundation of this new succession was laid, it was carried on so interruptedly, that in most of the sees its origin must be taken at a much lower period. There was not, for example, any appointment of a titular Archbishop of Dublin for more than forty years after the Reformation. We have an account of the state of the new I succession in 1621, from the pen of an I Irish ecclesiastic residing in Spain. He states that at the time that he was writing, the sees were held by the ringleaders of heresy, and that Catholic prelates were not I appointed to their titles, except in some few instances, because, without the ecclesiastical dues, such a body of bishops could not be supported: and the result, as stated by him, was that there were at that time but four titular prelates appointed for the whole kingdom, but two of whom were residing in the country; so that at that date, sixty-one years after the Reformation, two of the provinces, and all the suffragan bishoprics, were governed by vicars-general. In 1660, a century after the Reformation, we find that there were but three titular prelates in the kingdom. And these details, which show in a more striking light the extrava- 1503 gant absurdity of the pretensions which are put forward on behalf of the Irish Roman Catholic hierarchy, are all drawn from Roman Catholic authorities. He knew very well with what suspicion anything which was regarded as a discovery in history was received. Whatever were the evidence brought forward in its support, it was regarded as sufficiently put aside by those who were indisposed to examine it, by the reflection, that if it were true, it would have been found out long ago. He had no intention of saying anything against this mode of dealing with historical discoveries; but he was anxious to protect himself from the inconvenient credit of having made one. The point which he had been pressing on their Lordships was not only long known, but it had been given long since to the public in this country in different forms, which ought to have made some, at least, of their Lordships, well acquainted with it. He would refer only to one of those publications. In 1836, Dr. Hook, of Leeds, preached a sermon on behalf of the distressed Irish clergy. It was, he need hardly say, a very able and effective discourse. It had, he believed, gone through several editions. The copy which he held in his hand was marked "a new edition," and was printed in 1845. What the preacher's view of the position of the Irish clergy with reference to the ancient Church of Ireland was, might be sufficiently collected from the title of his sermon. It was, The Catholic Clergy of Ireland; their Cause defended. And in the body of the sermon he enters into the history of the Reformation in Ireland, giving substantially the same statement which he (the Bishop of Ossory) had now given. And he states expressly, as the result of his examination of the case—It is a well-known fact, that of all the countries of Europe, there was not one in which the process of the Reformation was carried on so regularly, so canonically, and so quietly, as it was in Ireland.And he goes on to prove, that—The bishops of the Church in Ireland—that is, as our adversaries will admit, the then successors of St. Patrick and his suffragans, those who had the right to reform the Church—consented to the Reformation; and that until the end of Queen Elizabeth's reign, and she reigned above forty-four years, there was no opposition Church in that country, under the dominion of the Pope.Such is Dr. Hook's statement; and he (the Bishop of Ossory) thought it right to add, not only to give weight to this testi- 1504 mony, but to do due honour to the distinguished person who bore it, that the school of theology to which the great body of the Irish clergy belonged, was widely different from Dr. Hook's; and that therefore it was not from party attachments, but from a sense of justice, that he came forward to vindicate their claim to be the successors of the ancient Church of their country. He (the Bishop of Ossory) was well aware that the point which he had been pressing, would be regarded as one of little importance by many who heard him. But he believed there were some within their Lordships' House, and he was sure that there were many outside it, who thought and felt differently about the point. But whatever its importance, if it were important enough to be referred to at all, it was of some importance that the true state of the case should be understood. To make it understood was the object of what he had said. His object was to show that the Roman Catholic Church in Ireland was not, as was so often confidently stated, the successor of the ancient Church of Ireland, nor its bishops the successors of the ancient bishops of the country; but that it was a novel Church, and that the remotest point to which any of its bishops could trace their succession was to a date subsequent to the Reformation: that the true and only representative of the ancient Church of Ireland, was the Reformed Church established there, so that it is entitled to its present position, no less by ecclesiastical law than by the law of the country. And if the issue were directed to any Court in the Kingdom, to try and determine to whom do the ancient sees of the country, with their privileges and temporalities, belong by right of descent, as the true successors of the bishops who held them from the earliest times, the finding must confirm the title of those who are in possession af them. This was what he had been anxious to prove, and he trusted that he had succeeded in proving it.
§ The EARL of ST. GERMANS
rose amidst loud cries of "Question!" He said, that he considered this question of too much importance, and felt too deeply interested in it, to allow himself to be put down by any clamour or impatience, and he was astonished to see that their Lordships desired to cut short so important a debate. The right rev. Prelate who had just spoken, announced an important and an interesting fact, of which he (the Earl of St. Germans was not disposed to dispute the accuracy 1505 namely, that the Established Church of Ireland was the legitimate successor of the ancient Church; but he must observe that at all events it was not the Church of the great majority of the Irish people. The right rev. Prelate had also stated that the Pope, a few years after the Reformation, sent over, of his own motion, bishops to be over the Catholic Church; and, so far as he (the Earl of St. Germans) knew, no legislative measure was ever taken to prevent that exercise of power by the Pope—an exercise of power analogous to that which he had recently exerted in this country. With respect to the Motion before their Lordships, he did not approve of any penal legislation towards Ireland; and if the provisions of this Bill were carried out there, they must be considered to be of a penal character. First, as to the question of indictment, he should refer to one or two authorities, showing that, where the bishops or other Roman Catholics contravened the penal clause of this Act, they would be liable to indictment. Lord Hale, in his Pleas of the Crown, distinctly said—.If a statute prohibits any Act, and by subsequent clauses gives a recovery by action of debt, or information, the party may be indicted on the prohibitory clauses, but not to the recovery of a penalty.The question, therefore, was, whether the Attorney General had the power of interfering to prevent these legal proceedings against a person so contravening the terms of the Act. Again, Justice Ashurst expresses an opinion similar to that of Lord Hale. There were various other authorities which appeared decisive upon the subject. He, therefore, thought the intervention of the Attorney General was necessary, and that it would be desirable that words should be introduced giving him power to prevent such indictments being laid. It was said that in Ireland any person assuming the titles of existing sees in that country would be liable to the penalties of this Act, and that acts done by them would be illegal and void. But there are now no fewer than ten sees in Ireland which are not called by the names of the sees of the Established Church, which will also be called "pretended" sees, and the bishops there will be contravening this statute, consequently they will be liable to the penalty, and all their acts will be null and void. If we, by our legislation, render the instrument appointing a bishop null and void, it must follow that all the acts 1506 done under that instrument will also be null and void. Then, again, suppose under the Charitable Bequests Act it was necessary for a bishop to establish his right to a bequest, would he be allowed to do so under an illegal instrument, the issue of which we had made null and void? If he was not mistaken, Lord John Russell had said, that he had been advised by his law officers not to prosecute under the statute of Richard II.; but it was held by Sir F. Thesiger and other eminent lawyers, that by reciting in this Act the words of the Act of Richard II., vigour and life would be given to the provisions of that Act. It was, therefore, important that some words should be introduced into this Bill, to prevent any vexatious proceeding, not contemplated by the Government. He had said that he entertained great objection to the exclusion of Ireland from such a Bill as this. But the House had affirmed the principle of the Bill, and the only question was should they take it as they found it and extend it to Ireland, or limit it to England? He admitted the force of the argument put by his noble Friend (Viscount Canning). It was most inconvenient that there should be any sort of distinction between the supremacy in Ireland and in England. It might and would indirectly affect the position of the Established Church. It was therefore with the deepest reluctance that he came to the conclusion that he was bound to support the Motion of his noble Friend (Lord Monteagle), from a sense of the difficulty and danger that this Bill would create in Ireland. Besides, why have a Bill for that conntry which they knew beforehand, it was not the intention of Government to give effect to? Why, in the present exasperated state of the public mind, individuals would be found to prefer indictments—at least that was the opinion of many eminent lawyers. Some private person might find a bishop on such and such a day committing a certain act, and go to the Attorney General to get him to lay an indictment. It would be difficult for the Attorney General to resist the injunction of Parliament contained in this Act. If he did, he would be liable to impeachment for dereliction of duty. This was no idle chimera, but the opinion of a man whom every Member of that House must admit to be worthy of respect, Archbishop Murray, the Roman Catholic Archbishop of Dublin. He said—Beloved Brethren—The hand of persecution 1507 is about to be once more extended over us, and a new element of civil discord cast amongst us. Under the pretence of resisting what is untruly called a Papal aggression, a Bill has been introduced into Parliament subversive of our religious worship, and fraught with mischief to the interests of our poor. It is nominally directed against your bishops, but it is in reality aimed against your religion. With respect to titles, your bishops claim no inherent right to any of those which are derived from any earthly fountain of honour. But the spiritual titles derived from the Church—their titles to the episcopal sees, derived as they are from the divinely-constituted fountain of spiritual jurisdiction—they are not free to surrender. Those titles are registered in heaven. They have not been given by any secular Power, and no secular Power can take them away. We know our flocks, and they know us. They recognise in us their spiritual pastors, exercising episcopal jurisdiction over them in the sees in which they reside. We are their bishops—they know us to be so: and yet a law is proposed forbidding us, under penalties which we could not pay, and the nonpayment of which would doom us to prison, to acknowledge even to our own flocks that we are what they know us to be, the pastors whom the head of our Church, acting according to its known discipline, has placed over them. What adds to the palpable injustice of such a law, is the insulting mockery of pretending that it leaves untouched our religious liberty. In the variety of ways In which this grievous law, if strictly enforced, would harass us in the unavoidable exercise of our merely spiritual functions, it would take away from you as well as from us even the semblance of religious freedom.Now, he begged their Lordships to recollect that these were not the words of an agitating bishop, but of one who had steadily set his face against political agitation; and their Lordships must admit that he was sincere in his conviction. Now that was written in the February of this year, and could not be said to have anything to do with the arguments which had recently been raised upon the subject. It was the result of his consideration of the subject when the Bill was first laid upon the table of the House. Then why should Government persist in doing what the Roman Catholics in Ireland must consider, and justly so, to be persecution? He begged also to call the attention of their Lordships to the opinion of the Catholic Bar of Ireland—an opinion which had been signed by two out of the three Queen's Serjeants, by 11 Queen's Counsel, and 80 members of the outer Bar. One of the Queen's Serjeants by whom it was signed was Mr. Serjeant Hawley, a man who had always been remarkable for abstaining from political discussions, and who had always been the friend of good government in Ireland. The protest of the Roman Catholic Bar said—We view the proposed measure as retrogressive 1508 and penal in its character, an infringement upon religious liberty, an unwarrantable interference with the discipline of our Church, and a departure from the policy recently pursued by the Legislature in facilitating the voluntary endowment of the Roman Catholic hierarchy and clergy of this; country. We object to this measure, because, by subjecting our religion to special legislation of a vexatious character, it will place the Roman Catholic people of Ireland in a position of inferiority to their fellow-subjects. We object to this measure because it will create new difficulties in the administration of charitable and religious trusts connected with the Roman Catholic Church, unduly control the free disposition of property, interfere with and endanger settlements made upon the faith of existing laws, and in its results be productive of great embarrassment and irritation. Finally, we object to the measure, because it has been conceived and framed in a spirit of hostility to the Roman Catholic religion, and because it is calculated to revive animosities which have been so baneful to our country, and which, in latter years, have been happily subsiding.This was not the language of agitators at public meetings, but the language of men of high rank and station, of unblemished character, and utterly unconnected with any political party in Ireland. He (the Earl of St. Germans) knew that the Irish people valued their civil rights highly, but they valued the exercise of their religious liberty much more; and he believed that if this Bill were extended to Ireland, all the evils which were in existence before the Emancipation Act of 1829 would be revived in tenfold force. It was most unwise to propose such a measure with respect to a country five-sixths of whose population were Roman Catholics. Much had been done for the Roman Catholics, though not so much as he believed some noble Lords, the Secretary for the Colonies for instance, thought should have been done. They had not recognised distinctly the Roman Catholic in this country as a territorial hierarchy; nor had they given their bishops seats in Parliament. They had not endowed the Roman Catholic Church, as he (the Earl of St. Germans) thought they ought to have done; but they had created establishments for the education of the clergy: they had colleges to which Roman Catholics might be admitted in common with all other classes of Her Majesty's snbjects, and also a system of national education, of which they could avail themselves; and in a variety of Acts of Parliament the existence of the Roman Catholic hierarchy in this country had been recognised. Therefore he believed such an Act as this would be pregnant with the most mischievous consequences to Ireland; and, not shutting his eyes to the objections 1509 urged against the proposition of his noble Friend (Lord Monteagle), but seeing all these evils and all these dangers, he, nevertheless, felt it to be his painful duty to give his vote in support of the Motion.
The DUKE of ARGYLL
said, although he believed it was not strictly regular to refer to a previous debate in their Lordships' House, and to attempt to answer arguments brought forward in that debate, he felt bound to notice the arguments which the noble Earl (the Earl of St. German) had used on a previous, as well as on the present, occasion. He greatly regretted the course which the noble Earl, connected as he had been with Ireland, was taking on this question, for he (the Duke of Argyll) did hold that, whatever might be the effect of the measure, it ought to refer to all parts of the United Kingdom, without reference to the degree of power, without reference to the number of the Roman Catholics who might thereby be affected by it. The stress laid in all the objections to including Ireland in the operation of the Bill, chiefly referred to the first clause, and on that the noble Earl had mainly rested his argument. The first clause said that—All such briefs, rescripts, or letters-apostolical, and all and every the jurisdiction, authority, pre-eminence, or title conferred, or pretended to be conferred thereby, are and shall be and be deemed unlawful and void.Now, he must say, that in his opinion the noble Earl, in his keen and anxious opposition to the measure, had set himself to find out and suggest to the Irish people difficulties and consequences which did not really exist, with regard to the effect of this clause upon the exercise of the Roman Catholic religion. He held that it was of the first importance, whatever might be the tone of the debates in that House, to take care and not exaggerate by one hair's breadth the consequences which they might conceive might or might not follow from any clause of the Bill. He had no hesitation in declaring his own feeling to be that, if it affected in any manner the purely spiritual acts of the Roman Catholic clergy, he should be quite as unwilling to apply this Bill to England, although there were few Catholics in England, as to Ireland, where there were millions. He, for one, would not confess that the British Parliament was willing to apply one principle to the few which it dared not apply to the many; and he took his stand upon the conviction that this clause neither could nor would, by any reasonable construction, 1510 affect the spiritual acts of the Roman Catholics. The noble Lord (Viscount Canning) had spoken of the ordination of the Roman Catholic priests as being founded on documents proceeding from Rome, and as this Bill would invalidate all documents from Rome, he thought such ordination would by consequence be invalidated. He. (the Duke of Argyll) denied that inference altogether. The holy orders of the Church of Rome were fully recognised by our own law and our own Church; and the consecration of a Roman Catholic bishop did not depend upon any such document, but upon the canonical consecration by other bishops. If a priest, therefore, asserted that he was ordained by a duly consecrated Roman Catholic bishop, no inquiry would be made as to the authority under which the consecration of that bishop took place. He did not only hold that the Bill might apply to Ireland, but that it was specially required for Ireland. This Bill was called for, because it was considered necessary to resist the encroachments of the Roman Catholic priesthood, from which was dreaded the gradual establishment of principles dangerous to our own institutions and our own political system. That was the ground on which their Lordships were asked to support the Bill; and if danger existed anywhere, surely it existed in that part of the empire where the Roman Catholic religion had the greatest influence, and where dangerous acts of Papal supremacy were passed over in silence by the British Parliament. In certain respects, in his opinion, we had acted most incautiously, and he was justified in using that language by two pamphlets bearing the mysterious words "by authority," which he presumed to mean that the publications had received the sanction and approbation of Dr. Wiseman, as representing the Roman Catholic priesthood. To show the real danger which existed of allowing this encroachment to go on unchecked, he would read them a brief extract from one of those pamphlets. A private Bill had been passed, entitled the Dublin Cemeteries Act, into which not one of their Lordships perhaps ever looked, except the Chairman of Committees, and on that Act the following conclusions were founded:—"Here we find Archbishop Murray, described as his Grace Archbishop Murray, exercising spiritual jurisdiction as archbishop in the diocese of Dublin. His spiritual jurisdiction in the diocese of Dublin is recognised; and the canon law is both 1511 amply recognised as prevailing in the diocese of Dublin, and to be administered by Archbishop Murray and his successors therein." The ground generally taken was, that the canon law only acted in foro conscientiœ, and had no existence under our law. If so, no British. Act of Parliament could alter it in that respect; but here it was argued "by authority," that Archbishop Murray having been designated as "Archbishop Murray, exercising spiritual jurisdiction in the diocese of Dublin;" by Act of Parliament, the canon law was recognised by our law, and could be enforced by our law as exercised by Archbishop Murray in that diocese. He (the Duke of Argyll) did not believe that Dr. Bowyer was justified in the conclusion to which he had come; but he contended it showed the spirit against which we should guard, and the consequences with which we had to deal; and he said again, if this measure was to be passed at all, more especially should it be passed with reference to Ireland, where the encroachments of the Roman Catholic priesthood were most dangerous. His noble Friend said, "in England we had no business to interfere, because in England we had given the Roman Catholics nothing, and in Ireland we dare not interfere, because we had given them so much;" but the conclusion which ought to be drawn was, that "in England we are at perfect liberty to deal with them, because we have an inherent right to do so, and have not diminished the right by any concession; and in Ireland we are especially bound to interfere, because it is more nearly brought into communication with the existing law." Looking to the state of Ireland, looking to the feelings which had so long existed in that country, it was most important that all who voted for this measure should vote for it, not for the purpose of interfering with the spiritual liberties of the Roman Catholics, but for the purpose of making a stand against priestly usurpation and Romish domination.
The MARQUESS of CLANRICARDE
entreated a hearing only to set himself right with his noble Friend (the Earl of St. Germans), and to inform the House on a point of fact with reference to the assumption of the title of Archbishop of Dublin by Dr. Murray. He did not believe his noble Friend would wilfully misstate anything, but without explanation their Lordships might be misled. As to the existence of some such document as had been referred 1512 to by the noble Earl, he (the Marquess of Clanricarde) never saw an original, and he ventured to say that his noble Friend never saw an original of the kind until today. So that the recital of that document in no way affected the statement which he (the Marquess of Clanricarde) had made. He was aware documents passed between Archbishop Murray and his priests, and, it might be, between him and the Court of Rome, in which he was addressed as Archbishop of Dublin, or referred to himself as Archbishop of Dublin. But that was not before the Irish people or the people of this country, and he did not consider it an assumption of the title of Archbishop of Dublin. If he wanted to prove that it could not be considered as such an assumption, he need only refer to a document signed by Archbishop Murray, which was issued at the time of the passing of the Relief Act, and in which, referring to the part affecting themselves, the archbishop and bishops recommended to the people obedience and attachment to the constitution and law of the country. It was impossible, knowing the high character of that most reverend Prelate, any one could believe Archbishop Murray would sign that document with the intention of subsequently violating the law he recommended the people to observe. Again, as another proof, when he asked his noble Friend to show him that very touching paper he had read, it was for the purpose of seeing the signature to it. That paper was addressed to the public generally, and was signed as the archbishop always did sign public papers, "D. Murray." What passed between him and the priests, or the Pope in private, the country, the law, the Parliament, and the Constitution, would not take cognisance of, and therefore the fact still remained on his side of the question, that Archbishop Murray did not bear or assume the title of Archbishop of Dublin.
The EARL of WICKLOW
, after referring to the doubts which existed, even among high legal authorities, as to the effects of the measure, asked whether it was reasonable to expect that they would pass a measure which might possibly contain such severe enactments as many supposed it did, with the mere hope that eight or nine months hence they would be able to pass another Act to amend it, if necessary? Did the noble Lord who had recommended that course, forget the evils which might arise in the meantime? Did he for- 1513 get that, after animosity and angry feelings had been excited, it might be found impossible permanently to remove them? And, besides, was his noble Friend sure that next Session the Whig Government would be in power to carry into effect an amended Bill? His conscientious belief was, that this Bill would be the downfall of the Whig Ministry. With respect to the Instruction to the Committee which had been moved, he begged to say that he could not support it, because he held that if the Bill was carried at all, it ought to be extended to the whole empire. Besides, he believed that as far as regarded Ireland, it would never be carried into effect; but that if Ireland were exempted, there would be serious danger that it would be put into operation in England. If their Lordships, therefore, wished to protect the Roman Catholics generally from the operation of the measure, they should vote for its extension to the empire at large.
§ The MARQUESS of LANSDOWNE
was understood to declare his objection to the Amendment, and his intention to adhere to the Bill in its present shape.
§ On Question,
§ House divided:—Content 17; Not-Content 82: Majority 65.
§ Resolved in the Negative.
§ The EARL of ABERDEEN
was desirous of directing the attention of the Government to a point of some importance before the House went into Committee on the Bill. The preamble referred to attempts to establish pretended sees, under colour of authority from the See of Rome, "or otherwise." These words, taken in conjunction with the enacting clauses, would prevent the establishment of bishoprics by any body of Protestants dissenting from the Established Church. That could not be the intention of Ministers, for they professed to wish only to prevent the appointment of bishops by the See of Rome. The way in which the words "or otherwise" came to be in the Bill could be accounted for. When the Bill was originally framed it was intended to prohibit the Scotch bishoprics, as well as those established by Rome; and to effect that object the words "or otherwise" were introduced. Now, however, that intention was abandoned, and consequently the words ought to be struck out. It must not be supposed that Protestants dissenting from the Established Church were not likely to want bishops. About three years ago some twenty or thirty Protestant clergy- 1514 men, professing the doctrines of the Church of England, and established in Scotland, withdrew themselves from the jurisdiction of the Scotch bishops, and appealed to their Lordships to grant them an episcopal constitution for themselves. Whatever might be the power of that House to act in such a matter, there could, he apprehended, be no doubt that the parties might have appointed bishops of their own if they pleased. But under this Bill as it stood they could not do so, nor could any other Protestant Dissenting body. It appeared to him that this would be carrying the spirit of religious intolerance rather further than any one contemplated. Under these circumstances he requested some explanation on the point from the noble Marquess.
§ The EARL of ABERDEEN
repeated his statement. The words "or otherwise" were properly introduced into the Bill when it was intended to prohibit the Scotch bishoprics; but, that intention having been abandoned, the words ought to be expunged, unless the Government meant to prohibit the establishment of bishoprics by any Protestant body not belonging to the Established Church.
§ The MARQUESS of LANSDOWNE
said, it was intended to prohibit all bishoprics not created by the Crown.
§ The EARL of ABERDEEN
If that was the intention of the Government, they ought to prohibit the Scotch bishoprics, for the Crown had nothing on earth to do with the creation of them. They elected each other with their own forms. Another sect might arise which would desire to have bishops, but the Bill would prevent them from obtaining them. The noble Marquess was, indeed, making rapid progress in intolerance when he would prohibit the existence of any Protestant bishoprics except those belonging to the Established Church.
§ LORD REDESDALE
thought the words of the clause most clearly confined its operation to England and Ireland.
§ The EARL of ABERDEEN
wished to know what there was to prevent the establishing of sees in England or Ireland. He said that Protestant sees might be established in either country; there might arise a sect of Protestant Episcopal Dissenters, 1515 who without claiming any jurisdiction might yet desire to give effect to the constitution of their Church. The word "otherwise" must apply to some other authority than the Court of Rome. The noble Marquess would forgive him, if he said that the Bill did apply to Scotland, and upon the highest authority it was in his certain knowledge that the Bill was intended to apply to Scotland.
The DUKE of ARGYLL
said, he did not think the Scottish bishops were included; but they had a perfect right to include them if they thought proper. The time would come when every bishop of any place throughout Europe, constituted by any Power whatever, would no longer be the bishop of a territory as having jurisdiction over all who lived within the diocese, which was the course adopted by Rome, but all bishops must be contented with calling themselves the bishop of such and Such a church, in a particular place.
§ House in Committee.
The EARL of KINNAIRD
moved to omit the first clause, because it appeared to him to render unlawful and void any spiritual jurisdiction of the Roman Catholics in England or Ireland.
§ The EARL of ELLENBOROUGH
observed, that the clause declared the nullity of letters-apostolical, and of all jurisdiction, authority, pre-eminence, or title conferred, or pretended to be conferred, thereby. Now he apprehended that the appointment of a clerk to a particular parish in Ireland was an act done by the authority of a bishop, and consequently, by passing this clause the House would declare void the appointment of every priest in every parish in Ireland. He particularly desired to have some explanation on a matter on which he had always felt great difficulty—namely, with respect to the bearing of this clause on the Charitable Bequests Act. The fourth clause of the Bill provided that nothing contained in it should be taken to affect the Charitable Bequests Act; and under that Act any archbishop, or bishop, or clerk in orders of the Church of Rome, officiating in any district, or having pastoral superintendence of persons professing the Roman Catholic 1516 religion, might go to the Commissioners of Charitable Bequests, and receive payment of the sums which might be due to him. Now, in such a case a bishop of a "pretended" diocese might he met in the first place by this difficulty, that in order to give such a description of himself as would warrant the Commissioners in paying over the money, he would subject himself to a penalty of 100l. on every occasion. How was it possible, then, for these two Acts to co-exist? If the Charitable Bequests Act was to stand, and this Bill was to go, what portion of it was to go into Ireland? The Charitable Bequests Act drew a broad line of distinction between the two countries; and if the Charitable Bequests Act remained, he doubted whether this Bill would have any operation in Ireland.
The LORD CHANCELLOR
was not sure that he understood the noble Earl, and he was afraid he did not, because the difficulty of which the noble Earl spoke did not present itself to his (the Lord Chancellor's) mind. If a parish priest was found exercising the functions of a priest, the law made no further inquiry. When parties were married by a person acting as a clergyman, the marriage could not be invalidated unless it were shown, first, that the person so acting was not a clergyman; and, next, that the parties knew it. No inquiry could be made into the validity of the clergyman's ordination. Necessity required that when acts were done by a person assuming a certain public character, his acts should he established by law, though he had no authority to perform them. The Charitable Bequests Act seemed to him to have received great attention; but when he looked to the Dublin Cemeteries Act, he was satisfied it had been drawn by somebody who had a design in the drawing of the Act. As it was not a public Act, the language of it passed without attention; but if it had been the object of Government to admit those titles, the same language would have been used in the Charitable Bequests Act. If be understood the noble Earl, as he was very anxious to do, he wished to know whether the effect of the first clause was to disentitle a person acting as priest from obtaining payment of a sum due to him as a bequest in respect of his spiritual office. He apprehended that the question would be, not whether he was properly appointed, but whether he was officiating. As it seemed to him, the difficulty suggested by the noble Earl did not arise, and the first 1517 clause of the Bill might very well avoid any jurisdiction, authority, pre-eminence, or title pretended to be conferred by letters-apostolical, without at all interfering with the right of the parties in question to receive money from those who ought to pay it.
§ The EARL of ELLENBOROUGH
was not at all satisfied with the explanation. This Bill deprived all of jurisdiction and authority who usurped certain titles. But it was by virtue of the authority derived under such titles, they had, for instance, pastoral superintendence. But this Bill made the source from which the authority was derived, void, and of course having been appointed by those who were themselves illegally appointed, they could have no legal right to exercise the privileges which would only attach to one who was regularly constituted. If the party said, "I apply as an archbishop," the reply would be, "Under the Ecclesiastical Titles Bill you are no archbishop—we cannot recognise you." If the Bequests Act survived this clause, then he must say the clause was not of the slightest value—it could be only held in terrorem, a mere useless expression of the vindictiveness of Parliament.
The EARL of WICKLOW
said, that as soon as this Act carne into operation, persons who were about to marry, would soon find out those priests who were and those who were not legally appointed—the position of the clergyman who was to perform the ceremony would become known, and his right to discharge the functions of his office would be questioned. The answer given by the noble and learned Lord on this subject to his noble Friend, had quite frightened him. There was another point with respect to which he entertained some apprehensions. There were appointments in Ireland of Catholic chaplains to gaols and poor-houses, which were not known in this country. These appointments were objects of great competition and canvass; and he feared that a chaplain, after he was appointed, would be always objected to by the party who was opposed to his election, on the ground that he was not legally the priest of the parish, because the bishop who ordained him belonged to a pretended diocese. He asked what would be the result if such objections could be constantly brought to appointments of this kind?
The MARQUESS of CLANRICARDE
observed that, when parties were married, 1518 it was not required to be known whether the priest who performed the ceremony had been legally appointed or not. Inquiries of such a nature had not been commonly made up to the present time, and there was no reason to suppose that parties would be induced to make them in consequence of the passing of this Bill. Had it ever been proved in a court of justice that a priest was not legally appointed because he owed his appointment to a brief from Rome? He (the Marquess of Clanricarde) would venture to say that there never had been such a case. Nor did he believe that there ever was an instance of a Roman Catholic bishop who went to take a bequest under the Charitable Bequests Act having been called upon to show the brief or bull by which he had been appointed.
§ LORD MONTEAGLE
said, it was true that no objections had been made, up to the present time, to a priest or a bishop on the ground that he held his appointment by an instrument from the See of Rome. But the case would be entirely altered by the passing of this Act. If a bishop of one of the pretended sees, whose appointment was utterly null and void under the Act, should go to the Commissioners of Bequests to claim what he might be entitled to, the question must immediately arise whether he was really and legally a bishop or not.
The MARQUESS of CLANRICARDE
said, he conceived that the operation of the Act by which certain gees were declared illegal, would be limited so far as the Charitable Bequests Act was concerned. The only question that would arise when a claim was made under that Act would be, whether the party who made the claim was the person exercising spiritual functions in a particular diocese?
§ LORD MONTEAGLE
said, in the case of a Roman Catholic bishop desiring to recover a legacy left to him in his episcopal character, he would have to make application to the Charitable Bequests Commissioners, who would be obliged to act of course in conformity with the law; and as this Bill would declare the assumption of an ecclesiastical title without the consent of the Crown illegal, he (Lord Monteagle) contended that it would be beyond the power of the Commissioners to hand over to such Roman Catholic bishop any such bequest. Suppose a legacy of 50l. were left to a Roman Catholic bishop, did their Lordships fancy that any Roman Catholic bishop in Ireland would be silly 1519 enough to incur a penalty, of 100l. in applying for such legacy?
The LORD CHANCELLOR
said, the law assumed that a man acting in the discharge of the duties of any particular office had a right so to act; and as the intentions of a testator were to he considered, the Charitable Bequest Commissioners would be fully justified in handing over to a Roman Catholic such legacy as may be left to him in his character of bishop of a particular district. He would illustrate this point by a case which was decided in their Lordships' House the other day. He alluded to an appeal case with respect to a rate ordered to be levied in the parish of St. Pancras, by certain parties who had not been properly elected vestrymen. Their Lordships, nevertheless, decided that as those parties acted in the character of vestrymen, the rate was valid. The question, then, to be ascertained by the Commissioners in the distribution of charitable bequests, would be whether the parties applying for them answered the description of the testators.
§ The EARL of ST. GERMANS
said, no man could be disposed to bow with greater deference than himself to the opinion of the noble arid learned Lord on questions of English law or equity, but on questions of canon law, he certainly was not disposed to place such implicit reliance on his opinions. By an apostolic mandate a bishop was appointed to his see, and, subsequently, he was consecrated to that see. No doubt there was a difference between acts of order and acts of jurisdiction. Now, acts of the latter description, on the part of a Roman Catholic bishop with a territorial title, were declared to be unlawful and void; and he doubted whether the effect of this Bill would not be to make even acts of order illegal. Appointment to churches, &c, by Roman Catholic bishops henceforward in this country would be null and void. That appeared to him to be an extraordinary way of dealing with the rights and privileges of our Roman Catholic fellow-subjects.
The BISHOP of OSSORY
said, that he probably would not have interposed in the discussion on this point, but that he was able to sustain the statement of the noble Marquess by a better opinion than his own. The late Lord Cottenham had said, in the celebrated case of the Queen v. Milles, "It was urged that marriages were good where the person officiating was not in orders, though pretending and believed to 1520 be so. This, I apprehend, depends upon a very different principle. The Court, in such a case, would not, I conceive, permit the titles to orders to be inquired into." This dictum confirms the statement of the noble Marquess, for it showed that the Courts would receive repute as evidence of the fact, and carry their inquiries no further; and the principle of this rule seemed to be a most reasonable one, namely, that, while the validity of a marriage may justly be made to depend upon matters which the parties may, and with due diligence would, know, it ought not to depend upon such points as they have no means of ascertaining; not to say that the Court itself, if it engaged in such an inquiry, would find that it had no means of conducting it to a conclusion, so as to ascertain whethor the orders of a Roman Catholic priest were valid or not. But the fact as to the practice of the Courts in such cases, was of itself quite sufficient to set at rest all the fears expressed by the noble Lord on the opposite side, that under the operation of the Bill, marriages celebrated by Roman Catholic priests would be declared invalid. And there was just as little ground for the apprehension that it would defeat the Charitable Bequests Act. Supposing, as the noble Lord thought, but, as it seemed, without any good reason, that the effect of the Bill would be to render the titles recognised in that Act, of "Archbishop, or Bishop, or other person in Holy Orders of the Church of Rome, officiating in any district, &c." unlawful, this would not prevent individuals from acting as trustees under a will in which they were described by these titles. The Courts of Law did not require that trustees or legatees should be designated by proper titles, such as they were properly entitled to, or could legally bear. It was enough if the designations were sufficient to enable them to identify the objects in the mind of the testator, so as to be sure that they were carrying out his intentions. This was the practice in the Courts in Ireland with respect to Roman Catholic bishops in that country. It was said that the Irish Courts had recognised their titles again and again as "Roman Catholic bishops," or "Catholic bishops" of certain dioceses. They never had done so. They had only applied in their case, as they would in any others, the rule which he had just stated. They had said, "This is not a proper designation, but it is a sufficient one. It enables us to ascertain the persons intended by the tes- 1521 tator, and we will therefore carry out his intentions." He (the Bishop of Ossory) remembered to have heard of a will-case in the English Courts, which served to illustrate this rule. The will was a very-strange document, written, as he remembered, in various coloured inks, red, blue, and black, and with the further singularity that, while the minor legatees, who were chiefly old servants, left in charge of different animals, all appeared under their proper names, all the principal legatees were designated by letters of the Greek alphabet. There was nothing to raise any doubt of the sanity of the testator, except the eccentricity of his will; and that the Court did not regard as sufficient to invalidate it. They therefore carried it out, so far as they were able to ascertain his intentions. There were some means, external to the document itself, by which they were enabled to ascertain to some extent the persons meant by the Greek letters, and to that extent the will was carried out; and he remembered, amongst others, an Eton boy took eight or ten thousand a year as Gamma. He thought it very likely that, if the story travelled to Eton, while the fortunate youth was there, he was pretty often called Gamma; and perhaps the name may have stuck to him after his school days. But he (the Bishop of Ossory did not suppose that it was ever maintained that the Court of Exchequer had decided that his name was Gamma; and yet there would have been about as good reason for such an assertion as for maintaining, as had so often been done, that the Courts of Law in Ireland had recognised the right of the Roman Catholic archbishops and bishops in Ireland to the style of Roman Catholic archbishops and bishops of the sees to which they pretend. In fact, there was a case in the Court of Queen's Bench in Ireland, which showed, very decidedly, that such titles were only received, as he said, as designations of persons, which, though improper and illegal, were yet sufficient to enable the Court, by means external to the will, as popular repute, and so forth, to identify the objects in the testator's mind. The case was this:—A property was left to the "Catholic bishop" of a certain see, and "his successors," with a life-use to the testator's wife. The Roman Catholic bishop, who was alive at the date of the will, died before the tenant for life; and the right of the bishop who came after him was tried, by the heir of the testator, 1522 who brought his ejectment. The heir succeeded. But, in the course of the trial, it seemed to be the opinion of the Court, that if the first devisee had survived the tenant for life, he might have taken under the will, because, though the title given to him was not one which the law acknowledged, yet it might be admitted as a popular description, enabling the Court to find him out. But they were unanimous in deciding that they could not admit any claim in an individual as his successor in office. This would be, not using the designation as a sufficient one, but admitting its strict legal propriety: admitting the Roman Catholic bishops to be a corporation, they, therefore, decided for the heir, with succession. And this decision showed conclusively, he said, that the utmost extent to which the recognition in the Irish Courts of such titles reached, was a sufficient, though improper, description of individuals, enabling the Court to identify them; and that not only did the recognition go no further, but that when they were asked to carry it farther, they positively refused. He had been anxious to clear up this point, which had been much mistaken, and in consequence much misrepresented. But what he said would also have the effect, he hoped, of setting at rest the apprehensions that the Commissioners of Charitable Bequests would be restrained by this Bill, if it passed into a law, from giving effect to trusts, even though made in conformity with the provisions of the Act by which the Commission was established, because this Bill, it was alleged, rendered illegal the titles which that Act recognised. It was not to be supposed that the Commissioners would feel themselves obliged or at liberty to proceed by shorter rules than the courts of law did; and he had shown that the courts of law did not require that trustees or legatees should be described by titles which the law gave them, or allowed them to bear. It was enough that the designations, whether proper or improper, legal or illegal, marked them out so as to allow them to be identified. And, even if it were true that the Bill would render the designations recognised in the Bequests Act illegal, which did not seem to be the case, it could not be pretended that it rendered them in any respect less sufficient, as enabling those who were concerned, Commissioners or others, to ascertain and identify the persons in the mind and intention of the testator.
§ On Question, Committee divided:—Content 26; Not-Content 77: Majority 51.
§ Resolved in the Negative.
§ On Clause 2,
§ The EARL of ELLENBOROUGH
said, that this clause appeared not to have been I carried through the other House with; great care, for there was omitted from it the word "shall," which, in Parliamentary language, was considered so important, and there was inserted in it the words "such bull," without any bull whatever' having been mentioned before. But he did not propose any amendment as to either, inasmuch as he apprehended it was the fixed determination of the Government, having a great majority in that House, not to afford the House of Commons an opportunity of reconsidering the Bill. He agreed with that part of the clause which put the assumption of titles of pretended sees on the same footing as the assumption of titles of existing sees. He felt bound to acquiesce in it, in consequence of having been a party to the Catholic Relief Bill. When that Act was passed, he thought the door was for ever closed on religious persecution. The noble and gallant Duke, in proposing that Bill, declared his object to be the establishment of religious peace; but he (the Earl of Ellen-borough) felt convinced that the enactment in the latter part of this Bill would tend to establish religious discord. He deeply regretted that Her Majesty's Ministers had passed that limit within which they were justly entitled to legislate in consequence of the aggression which had been committed against Her Majesty's supremacy, and the independence of this Imperial State. He felt that an offence had been committed against the dignity of the Crown, and the independence of the State. He was ready to show his resentment for that offence; but he deeply regretted that it should seem fit to Her Majesty's Ministers to adopt a mode of legislation which could not touch the Pope himself, who was the principal offender, but which, whilst it touched in a certain degree those Englishmen who most improperly had taken part in this aggression, by accepting these titles, at the same time would strike at Ireland, where no offence had been committed, and which remained precisely in the state in which it had been for centuries. The measure was most unjust, as inflicting an undeserved penalty on the people of Ireland.
§ Amendment negatived.
The DUKE of ARGYLL
said, he had felt the necessity of placing on the table of the House an Amendment to this clause. On the second reading he expressed himself strongly in favour of the Bill, and therefore he was not prepared to do anything which would tend to throw the Bill out altogether. He had supported this Bill with the strongest feeling that they hap not seen the end of this matter. Looking at the feelings of the Roman Catholics, he thought they would have to legislate further, though not, he trusted, on this particular point. An address had lately, been signed by the Roman Catholic laity, which exhibited, in his opinion, a return to the most slavish doctrines of the Roman Catholic Church. As the Bill was first introduced into Parliament, the prohibition of these territorial titles was proposed to be enforced by two clauses. One imposed a penalty of 100l. upon those who assumed them; and there was this great advantage in that clause, that the principle of it had been assented to by those who supported the Relief Act. The penalty by that Act was applied to existing and ancient sees, the Roman Catholic prelates of which the Irish people had long been accustomed to consider as the bishops of these sees. Those who consented to that prohibition were hardly now entitled to say there was anything abstractedly unjust in the application of the same principle to these new sees. The penalty imposed by the Relief Act had been said to be useless; but he could not agree in this opinion, for the clause imposing the penalty had been like a millstone hung round the necks of the opponents of this Bill. That clause still remained on the Statute-book, and established the principle that these titles were illegal, and that the spiritual functions of the Roman Catholic priesthood could be carried on without the titles. He regretted the insertion of the words whereby the common informer was empowered to go to the Attorney General and call on him to institute a prosecution. Although he could not oppose these words as unjust in principle, yet he felt that, as far as the words went, they constituted an exceedingly objectionable part of the Bill. The noble Duke concluded by moving that the following words should be omitted from the end of the Second Clause: 1525Or by action of debt at the suit of any person in one of Her Majesty's superior courts of Law, with the consent of Her Majesty's Attorney General in England and Ireland, or Her Majesty's Advocate in Scotland, as the case may be.
§ Moved, in the Second Clause, page 3, line 3, to leave out from the word "thereof," to the end of the clause.
§ The MARQUESS of LANSDOWNE
remarked that the Government had opposed the insertion of these words, and that it had been owing to the conduct of the Irish and other Members, in leaving the House, that they had been carried, Since, however, the words were there, and since they could be of no practical effect, he thought that, to avoid further discussion as much as possible, they ought to be allowed to remain.
§ The EARL of ELLENBOROUGH
strongly urged the omission of the words proposed to be left out. They were most objectionable, for however much they might be inclined to resist the late aggression by strong measures, they ought by no means to go beyond the Relief Act. He did not think that any Attorney General should possess the responsibility of instituting such prosecutions, and he presumed that Government would in most cases be consulted. Of all things which had been done in connexion with this subject, he considered the most unfortunate in practice would be the introduction of these words.
The LORD CHANCELLOR
reminded their Lordships that it was owing to the absence of the Irish Members that the provision in question was found in the Bill. Its practical effect, however, was really nothing. If the Attorney General, when the informer came to him, thought that the case was not one to which the Act of Parliament was intended to be applied, he would refuse his certificate. The present provision looked vexatious, and he was sorry to see it in the Bill, but it made very little practical difference.
§ The EARL of ELLESMERE
had deeply shared in the feelings of irritation which had been caused in this country by the recent acts of the Pope. He believed that "some enemy had done this," and that there were those to whom the aspect of religious peace and religious liberty in this country was an eyesore; but these advisers of the Pope had dug a pitfall for the Protestant people of this country, and had fallen into it 1526 themselves. He thought the present clause would place the law officers of the Crown in an unfair position, and that if it were thought necessary to embody a protest in a legislative form, the proposal of his noble Friend the noble Duke near him (the Duke of Newcastle) would have been a safer way of proceeding. The ecclesiastics of the Church of Rome might wear what dress and assume what title they pleased among themselves; but when they came within the jurisdiction of English law for the enjoyment of those sanctions under which they held their rights and privileges, it would not be unfair or unwise in them to leave those titles out of the question, and to come before Parliament in the character of Roman Catholic archbishops of bishops, but not in those titles of dioceses which they had chosen to assume. The Roman Catholic Church in this realm had been taunted with having no territorial titles, and it was not unnatural that the Pope should seek to remove this stigma by a stroke of his pen. His indignation against the aggression was certainly diminished by this consideration, and he should support the Amendment of the noble Duke.
§ The DUKE of NEWCASTLE
said, he thought the Government had placed their Lordships in an unfair and improper position, for the noble and learned Lord on the woolsack had said the clause had been carried as it now stood in consequence of the absence of the Irish Members from the House, and that they must take the consequences. Was this an argument fit to be addressed to their Lordships? If the Irish Members had neglected their duty, it was no reason why their Lordships should neglect theirs. The words objected to surely must stand on their own merits. But their Lordships were in this peculiar position, that both the learned Lord on the woolsack, and the noble Marquess (the Marquess of Lansdowne), had declared that these words were disapproved of by the Government. Yet they had given no reason for declining to consent to their omission. And no reason could be suggested save this—a predetermination on the part of the Government to allow no alteration in the Bill, in order not to admit of its again being discussed in the other House. This involved an utter abdication not only of the functions of Government, but of legislation. Was it becoming for such a reason to permit such an important Bill to pass into law with words in it of which the Go- 1527 vernment disapproved? It was said that the words were unimportant. [The LORD CHANCELLOR: Hear, hear!] Yes; but this was the first time in the course of these discussions that such an opinion had been expressed; and the noble and learned Lord (Lord Lyndhurst) who had supported the Bill on that (the Opposition) side of the House, had declared that these words, now said to be useless, would give to the Bill all its practical value. It could not surely be pretended that the words had no effect, or that it was the same thing to entrust prosecution to parties responsible, and to parties perfectly irresponsible. It was not, however, necessary to argue the question, which might be rested on the statements of the two noble Lords, the Lord Chancellor arid the Lord President, that they disapproved of the words proposed to be omitted.
§ EARL GREY
did not think the noble Duke who had just sat down, had quite correctly apprehended what had fallen from his noble and learned Friend the Lord Chancellor. The argument of his noble and learned Friend was, that these words made no practical difference in the effect of the Bill; and that being the case, he (Earl Grey) was bound to say that the circumstances under which the addition to the clause had been carried, were not immaterial; and, looking to the whole tone of the proceedings in the House of Commons connected with this subject, he thought there was a public interest in avoiding a fresh discussion of this irritating subject in that House. The question really turned on the point as to whether the words made any practical difference or not. His noble and learned Friend had demonstrated that they did not. It was perfectly true that the common informer was enabled by this clause to bring an action for 100l., but he was only enabled to do so by the assent of the Attorney General. Whether the words were there or not, he considered that the duty of the Attorney General was precisely the same. He had to consider whether the law had been really infringed, whether the evidence brought before him was sufficient to justify a prosecution, and whether a prosecution under the circumstances of the case was for the public interest. If the Government, being in possession of the violation of the law, were inclined to prosecute, then, whether these words remained in the Bill or not, the subject would be equally sure to be brought under the consideration 1528 of Parliament; and the Government would be obliged to state reasons why they had promoted or prevented the prosecution, as the case might be. The Attorney General would be in the same position in either case, whether the words were retained or omitted.
§ The EARL of MALMESBURY
said, that the peculiar feeling of the people throughout the whole of Great Britain must be met by measures in accordance. The people of this country, alarmed as they were, would consider this clause of the utmost importance to the Bill, as they regarded the act of the Pope as an aggression on their religion and on the prerogative of their Sovereign. That was the value he set upon the clause, and he hoped it would form part of the Bill. He believed that the measure would stop any further invasion, because the cry that had been raised in the country had already, as he thought, prevented the continuance of similar aggressions. He had been told that the Pope had been prepared to appoint bishops in the north, but had been deterred by the expression of public opinion. This Bill, clothed with the dignity of Parliament, would convince the Pope that he could neither trifle with our feelings nor insult our religion.
§ On Question, "That the words proposed to be left out stand part of the Bill,"
§ Committee divided:—Content 61: Not-Content 26: Majority 35.
§ Resolved in the Affirmative.
§ VISCOUNT CANNING
, alluding to the precedent he had referred to in the early part of the evening, of the petition presented to the Irish Parliament by the Roman Catholic prelates in 1793, signing themselves Roman Catholic archbishops and bishops of their respective provinces or sees, said he understood the noble and learned Lord (Lord Cranworth) to reply that the prefix of the words "Roman Catholic" made the territorial titles lawful. If so, then did this Bill propose to prohibit, in 1851, what was admitted to have been legal as long ago as 1793?
§ LORD CRANWORTH
said, he had stated that the prefixing of those words would have made a great difference as regarded the impression produced on the public mind, if the new hierarchy had taken that course.
§ LORD MONTEAGLE
was delighted to hear this, because he had given notice of his intention to propose on the third read- 1529 ing, a proviso excepting from the penalties of the Bill prelates who prefixed the words "Roman Catholic" to the territorial titles they used.
§ The MARQUESS of LANSDOWNE
was glad to hear this, for the prefixing of those words would make all the difference. It was the determination with which the Roman Catholic bishops had abstained from thus assuming a title which they knew would remove all difficulties, and adopted titles which they knew would cause difficulties—it was this which had principally produced the opposition to the new hierarchy.
§ VISCOUNT CANNING
presumed, from what the noble Marquess said, that the Bill would not prohibit the use of the territorial titles with the words "Roman Catholic" prefixed.
§ EARL GREY
said, he believed the proviso to be proposed by his noble Friend (Lord Monteagle) would not be necessary, as the Bill would permit the use of the phraseology he proposed, that recognised in the Charitable Bequests Act, namely, "Roman Catholic archbishop (or bishop) officiating (or exercising spiritual jurisdiction) in the archdiocese (or diocese) of Dublin," &c.
§ VISCOUNT CANNING
said, that did not answer his question, which was simply this, whether the form recognised by the Irish House of Commons as legal in 1793, would be permitted by the Bill, namely, "Roman Catholic Archbishop of Dublin."
§ VISCOUNT CANNING
said, that still his question remained unanswered; which was, whether this phraseology would be legal under this Bill? That was a simple question, and there should not be much difficulty in answering it.
§ LORD CRANWORTH
had no hesitation in saying that, under the provisions of this Bill, a Roman Catholic ecclesiastic could not so designate himself without incurring its penalties.
§ VISCOUNT CANNING
inquired whether, if this Bill were passed, it would be lawful for Dr. Murray, for example, to take, or his flock to address him by, the title of Roman Catholic Archbishop of Dublin, without being subject to a penalty of 100l.?
§ LORD CRANWORTH
did not think that Roman Catholic bishops would be able to save themselves from the penalties of this Bill by prefixing "Roman Catholic" to the titles which some of them had hitherto assumed. Probably, however, had they contented themselves with the assumption of such qualified titles, the indignation of this country would not have been roused, as it justly had been, by their assumption of titles belonging to bishops of the Established Church.
§ VISCOUNT CANNING
thanked the learned Lord; but begged to say, that considering the simplicity and importance of the question, it was somewhat surprising that no Member of the Government could answer it.
§ Clause agreed to.
§ Clause 3, exempting the Scotch Bishops from the operation of the Bill,
§ The EARL of ST. GERMANS
rose to express his objection to the Clause, and moved that it be omitted.
The DUKE of ARGYLL
differed entirely with the noble Lord and others who denied the right of Government to prohibit these titles. They had a perfect right to prohibit them. But the question then came—having the right, was it worth while to do so? With respect to the organised priesthood of the Roman Catholics, he considered that it was; but they were not therefore bound to say that it was worth their while to do so with respect to other bodies who might take the titles. In reference to the Scotch bishops, he was desirous of making a statement with reference to one of that body now in London, who had been advertised as "the Lord Bishop of Edinburgh," to preach a charity sermon. He (the Duke of Argyll) had the authority of that Bishop for saying he was entirely ignorant of the assumption ascribed to him. The notice was put in by other parties, who no doubt wished to make as much parade as possible. He uniformly avoided and repudiated any such assumption of title. He (the Duke of Argyll) was not prepared to vote for the expunging of this clause, as the Bill was at present worded; although, had it been differently drawn up, he might have voted against such a clause.
§ Amendment negatived; Clause agreed to; Clause 4 agreed to.
§ Preamble agreed to.
§ Bill reported, without Amendment.
§ House adjourned to Monday next.