THE BISHOP OF EXETER
rose to move for Copies of any Case and Questions proposed by Her Majesty's Government to the Irish Law Officers of the Crown in the Year 1852, relative to the Construction of the Statute 10th of George IV. chap. 7, section 26; with the Answers to the same by the said Irish Law Officers; Also, Copy of any Case and Questions proposed by Her Majesty's Government to the Irish Law Officers in the last and 170 present Years on the Construction of the said Section of the said Statute; with the Answers thereto given by the said Irish Law Officers; And also, Copy of a Proclamation by Her Majesty, bearing Date the 15th of June, 1852, warning Roman Catholic Ecclesiastics of the Unlawfulness of wearing their Ecclesiastical Habiliments, saving in the usual Places of Religious Worship or in private Houses. The right rev. Prelate said, their Lordships would soe that in the notice which he had given he had made certain propositions for returns which it was not unusual to move for in either House of Parliament—he meant returns of questions which had been put to the law officers of the Crown, and the answers which had been given to those questions. He should certainly not have departed from the usual practice if it had not appeared to him that there were extraordinary anomalies in this case that required to be explained, and which he could not conceive capable of explanation without direct reference to the opinions given by the law officers of the Crown. Before proceeding to the matter in hand, however, it might be wise to state, though not at any tedious length, the history of this matter as already disclosed in the conversations that had taken place in that House. Last year he had collected from the statement of the noble Earl opposite, who was Lord Lieutenant of Ireland in 1852 (the Earl of Eglinton) that at the time he filled that office he received accounts from the south-west of Ireland to the effect that the Roman Catholic Bishop in one portion of the county of Galway had given notice to his clergy to attend in their robes, in their sacerdotal habiliments, for the purpose of joining in a procession. On this the noble Earl, as he (the Bishop of Exeter) understood him, took the opinion of the law officer of the Crown who was immediately his adviser, who told him that such procession was illegal. But the noble Earl was not satisfied with that. He also sought the opinion of the Attorney General and Solicitor General of Ireland, and from them received the similar assurances that there could be no doubt that such a procession was of an illegal character. On that the noble Earl directed a letter to be written to the Roman Catholic Bishop, pointing out the illegality of the measure; stating at the same time that he believed the notice was given without his having adverted to that illegality, that he was willing to regard the matter in that view, and 171 that he trusted no procession would take place. As he understood the noble Earl, the Bishop returned a reply intimating that he had no intention of pursuing that illegal course. This took place in Ireland in 1852. In the same year, in England, there seemed to be grounds for inducing Her Majesty's Government of that day to issue a proclamation, declaring the danger incurred by those individuals who offended against the particular clause of the statute of 1829 which prohibited ecclesiastics to appear in their sacerdotal habiliments, except in their usual places of worship or in private houses. That proclamation pointed out that it was of great importance to the peace of the country that the law should be strictly observed; and in the most conciliatory, but at the same time in the most peremptory terms, announced the determination of the Government. After reciting the statute and the violation of it, the proclamation proceeded—We have therefore thought it our bounden duty, by, and with the advice of our Privy Council, to issue this our Royal Proclamation, solemnly warning all those whom it may concern, that, whilst we are resolved to protect our Roman Catholic subjects in the undisturbed enjoyment of their legal rights and religious freedom, we are determined to prevent and repress the commission of all such offences as aforesaid, whereby the offenders may draw upon themselves the punishments attending the violation of the laws, and the peace and security of our dominions may be endangered.That proclamation was issued in June, 1852. Of the wisdom of the course then taken there could not be two opinions; and of the necessity for it an unhappy example soon after occurred: he meant those riots at Stockport which created such extreme disgust. It must not be supposed that he charged the Roman Catholic clergymen of that town with provoking the riots by appearing in their robes of office in public to the disturbance of the peace. That was not so. He believed the riots at Stockport proceeded from religious animosities on both sides, and that the fault was more to be ascribed to the Protestants than to the Roman Catholics. But those riots afforded an illustration of the necessity of enforcing the law. At Stockport that law had been proclaimed; and though the Roman Catholic clergy of the town abstained from appearing in procession in their robes, yet such was the soreness of Protestant feeling in relation to these processions that an unhappy outbreak occurred which terminated 172 in loss of life, to the shame of this Christian country. Now, he would say that if an outbreak like that of Stockport take place without the provocation of a direct violation of law, what might we expect would be the consequence if, unfortunately, the Roman Catholic clergy should be taught to feel that they were guilty of no offence if they did appear in the streets in the habiliments of their order in such processions, or even if they daily went about their duties publicly in their dress? In 1854, after this proclamation of 1852 had been found effectual, and been faithfully observed by the Roman Catholic clergy in this country, it happened that a change took place in Her Majesty's councils. Then it appeared that a Roman Catholic Bishop in the south of Ireland—he meant the Irish Archbishop at Tuam (he used the term "at Tuam" advisedly, as he regarded the title "of Tuam" to be illegal)—put forth a manifesto, in which he called on his suffragans and clergy to meet him in their robes of office, in the habiliments of their order, to hold a provincial synod at Tuam. His bishops obeyed this command. The proclamation of John of Tuam was held to be more powerful than Her Majesty's proclamation of 1852. The question, therefore, came to be, whether this Archbishop at Tuam, or Her Majesty's proclamation, was to be held as announcing the law of the land? This took place in the autumn of last year; and since the meeting of the present Session of Parliament a noble Baron (Lord Berners) took occasion to bring the case to the knowledge of Her Majesty's Government, and to ask if any steps were intended to be taken with regard to it. In consequence of that, it appeared that questions were put to the Irish law officers, and that to these questions answers were returned. To these answers he would now take occasion to refer. The noble President of the Council had made a statement on this subject on Tuesday, the 27th of February, and he (the Bishop of Exeter) would not trust to his own recollection, but would quote the noble Earl's words from what were called in that House "the usual sources of information."
§ EARL GRANVILLE
said, "the usual sources of information" had not represented with perfect accuracy the observations he had made on the occasion to which the right rev. Prelate referred.
THE BISHOP OF EXETER
must take the liberty of saying that his own recol- 173 lection agreed with the statements contained in "the usual sources of information."
§ EARL GRANVILLE
was understood to say that what he had stated was, that the law officers of the Crown in Ireland not being agreed upon the subject, the question had subsequently been referred to the English law officers of the Crown, and that, in their opinion, the law did not apply to the secular or working clergy, although it did apply to the regular clergy.
THE BISHOP OF EXETER
had no doubt that the noble Earl's statement of what he had said on the occasion in question was correct; but he (the Bishop of Exeter) had no recollection of any statement on the part of the noble Earl that the Irish law officers of the Crown differed in opinion on the subject, and his own recollection was fully borne out by the newspaper reports. He thought, after the issue of the proclamation of 1852, which had not been recalled, that it would have been but fair to the country if the present Government, if they had formed an opinion as to the state of the law different from that entertained only two years ago by all the then law officers of the Crown, and after they had been formally warned that if they continued to do certain acts they would render themselves liable to any penalties as well as violate the peace and security of the country, had sent forth a new Proclamation, declaring their intention of acting upon the novel and somewhat extraordinary opinion expressed by their law officers. If, as the noble Earl the President of the Council now stated, there had been any difference of opinion on this subject among the law officers of the Crown in Ireland, he thought it was very important that they should ascertain on what ground those differences had arisen. The Act 10 Geo. IV. c. 7, commonly called the Roman Catholic Relief Act, left the recovery of penalties for the commission of such offences in the hands of the Attorney General for Ireland. He considered that if the Attorney General for Ireland was of opinion that the Acts to which he (the Bishop of Exeter) had referred were legal, it would have been quite fair to say to that functionary, "We cannot expect you to prosecute in a case where you believe that the law does not entitle you to do so." He thought that the House should be placed in possession of the opinion of the first law officer of the Crown in Ireland—the Attorney General—and that if other 174 legal officers had differed from him they should know what were the grounds upon which it was considered that the appearance of Roman Catholic ecclesiastics in the habits of their orders, in the streets of Tuam, was not a violation of the law. On Friday last, the 2nd of March, the noble Earl (Earl Granville) was reported to have said—and here he (the Bishop of Exeter) quoted from the ordinary sources of information, whose representation was borne out by his own recollection—"Not that there was any doubt on the subject, but that an opinion had been given to the effect that the prohibitions of the Act applied not to the secular, but to the regular clergy." It was now intimated, however, that there had been a doubt; and he thought the best mode of clearing up that doubt would be by the production of the opinions of the law officers of the Crown. But the noble Earl did not stop here, for he afterwards said—"It did not seem to him that the words prohibiting ecclesiastics from appearing in the habiliments of their order could apply to ecclesiastics who belonged to no order." That brought him to another point of the case. It appeared that in 1852 the law officers of the Crown were clearly of opinion that offences against the law had been committed; but it seemed that in 1854 the law officers of Ireland did not agree in their opinion on the point, and the course was taken—with which he did not mean to find fault—of appealing to the law officers of England. They had had the advantage of hearing, on this subject, the opinion of the noble and learned Lord on the woolsack—an opinion to which he had listened with great respect and deference—but he must frankly say that his confidence in that noble and learned Lord had only increased the surprise with which he had heard the opinions he had expressed. The Lord Chancellor was represented to have said—and his (the Bishop of Exeter's) recollection bore out the statement—thatThere appeared to be good reason for believing that there was no prohibition against a Roman Catholic priest wearing his ecclesiastical habiliments in going through the streets. He took it that the habiliments of a priest were not the same as the habiliments of any one of the orders referred to; and as this was a highly penal statute, the rule of the law was that it be construed very strictly.It was true, as the noble and learned Lord said, that, this being a penal statute, the rule of law was that it be construed very strictly; but he (the Bishop of Exeter) held that the interpretation to be put upon 175 the words "construed very strictly" was, that the terms of the statute should be construed strictly according to the plain, literal, and grammatical meaning of the words. He found that, in the case of "the Attorney General v. Lockwood," reported in 9, Meesom and Welsby, page 398, Baron Alderson expressed his opinion on the construction of statutes in these words—The rule of law, I take it, upon the construction of all statutes, and therefore applicable to this, is, whether they be penal or remedial, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act, or to some palpable and evident absurdity.The 26th section of the Act was this—And be it further enacted that if any Roman Catholic ecclesiastic, or any member of any of the orders, communities, or societies hereinafter mentioned, shall, after the commencement of this Act, exercise any of the rites or ceremonies of the Roman Catholic religion, or wear the habits of his order, save within the usual places of worship of the Roman Catholic religion, or in private houses, such ecclesiastic or other person shall, being thereof convicted by due course of law, forfeit for every such offence the sum of 50l."The 28th section related to the particular orders. He now came to the plain, literal, and grammatical meaning of the words used in the Act. This was no longer a legal question, but a question of grammar. He admitted that in one sense it was a question of law, but it was a question of law that the highest legal authorities acknowledged was only to be construed according to the plain, literal, grammatical sense of the words employed; and he therefore contended that every man who knew what the English language was had a right to put his construction upon the matter. The words of the clause were these—And be it further enacted, that if any Roman Catholic ecclesiastic, or any member of any of the orders, communities, or societies, hereinafter mentioned, shall, after the commencement of this Act, exercise any of the rites or ceremonies of the Roman Catholic religion;so that in this instance there were two classes of persons mentioned—any individual belonging to either of which might incur the penalties of the law—first, "any Roman Catholic ecclesiastic," and next, "any member of any of the orders, communities, or societies." If any one of these parties were guilty of any one of the matters held to be an offence, he came within the meaning of the Act, which provided that a penalty of 50l. should be in- 176 flicted upon any person exercising the rites or ceremonies of the Roman Catholic religion, or wearing the habits of his order, save within the usual places of worship of the Roman Catholic religion, or in private houses. There were thus, also, two distinct offences, and it was contended that they were to be taken separately, namely, that the offence of exercising any of the rites or ceremonies of the Roman Catholic religion applied only to the Roman Catholic ecclesiastic who had no habits of an order, and that the words "wearing the habits of his order, save within the usual places of worship," applied only to the member of an order. Now, he contended that this construction was a violation of the plain grammatical sense of the words contained in the Act, which asserted that, if either one of two parties did either one of two things, be it what it might, he was guilty of an offence under the Act, and was liable to forfeit a penalty of 50l. upon conviction. He must be permitted to declare that, if the English language was to be taken as it was usually construed, it was in direct defiance of the construction now attempted to be placed upon the words of the statute. The plain literal construction of the clause would certainly not relieve the Roman Catholic ecclesiastic from the prohibition and penalties of the statute if he wore the habits of his order in the streets, or in any other place, except the usual places of public worship or private houses. For the sake of the peace of the country, he hoped that the construction which he placed upon the words of the Act would be held to be the plain, literal, and grammatical meaning of the clause. If it were not so, he could hardly say what consequences might ensue. In every town in England and Ireland in which there was a numerous body of Roman Catholics they would find their Roman Catholic fellow-subjects disposed to vaunt their strength and defy the Government, particularly if they were to be told that the Government could inflict no punishment upon them. Throughout the towns of Ireland, throughout the largest cities of this country—London, Manchester, and Liverpool—and, above all, in Glasgow—there would be processions of Roman Catholics, headed by Roman Catholic priests in the habiliments of their order; and could their Lordships look upon such a state of affairs without dismay, without believing that the same spirit which had recently manifested itself at Stockport would be greatly increased, and that the indignation 177 of the Protestants of other places would be excited to the utmost when they saw such proceedings taking place in direct defiance of the Proclamation of the Queen, and, therefore, unless Her Majesty's Proclamation should have been withdrawn, in defiance of what they would believe to be the law of the land? It was impossible to doubt, when they saw the Protestants of Glasgow, of London, or of Liverpool, insulted by processions headed by Roman Catholic bishops and priests, in the habiliments of their order, that the worst scenes of violence would take place. He did not think any of their Lordships would be able to say how long such a course could be pursued without entailing the most sanguinary, as well as the most violent scenes. And upon whose head would be the guilt of the blood so shed? In his opinion the guilt of that blood would attach, in the first place, to any Government that should tell the Roman Catholics they were not offending any law by engaging in exhibitions so insulting to the feelings of Protestants that they would be sure to bring down the vengeance of the Protestants upon their heads; and, in the next place, to those law officers, and in particular to the noble and learned Lord on the woolsack, who should have the discredit of misleading the Government by means of an erroneous opinion. If the Government did that without being absolutely certain that the law of the land was such as had been represented to them by the Attorney General and Solicitor General, any blood which might be shed in consequence would rest upon the heads of the Government. He was not desirous of indelicately making a comparison between the noble and learned Lord who now sat upon the woolsack and any other noble and learned Lord who had sat there in former years; but he could not avoid asking other noble and learned Lords who had filled the office of Lord High Chancellor whether they agreed in the construction which had been placed upon this clause of the Act? He appealed more especially to his noble and learned Friend opposite (Lord Lyndhurst), who sat upon the woolsack as Lord Chancellor when the statute was framed. They all knew that the statute was framed in order to preserve the religious freedom of the Roman Catholics, and at the same time to assert the legal rights of the Crown; and he ventured to ask his noble and learned Friend to read the clause, and favour their Lordships with his opinion upon it. It was very remark- 178 able that soon after the Royal Proclamation was issued, in 1852, the present Attorney General for Ireland, Mr. Keogh, said, in a speech in the House of Commons—I have seen in this morning's papers a Royal Proclamation which is addressed to the clauses in the Roman Catholic Relief Act, which were introduced into that Act from some very old Acts. Those clauses were directed against the habit of Roman Catholic ecclesiastics wearing the dress of their order in public. These clauses have been dormant ever since the passing of the Roman Catholic Relief Bill.Now, the words of one of these clauses—that taken from the 8th clause of the 21st and 22nd of George III. (Irish)—were—Provided always, that no benefit of this Act shall extend to any Popish ecclesiastic who shall officiate in any church or chapel with a steeple or bell, or at any funeral in any church or churchyard, or who shall exercise any of the rites or ceremonies of the Popish religion, or wear the habits of their order, save within their usual places of worship," &c.He believed he was correct in saying that was the first statute passed for the relief of Roman Catholics in Ireland. It so happened that in England a similar statute for the relief of the Roman Catholics was passed in the 31st year of the reign of George III., and that Act was a direct transcript of the 21st and 22nd of George III. (Irish) so far as regarded this question. There was in neither of those statutes a single syllable about the members of monastic orders being the only persons who could violate the law, and it must be remembered those Acts were prepared, after long and close consideration, in a spirit of liberality towards the Roman Catholics, but, at the same time, with a firm resolution to assert the rights of the Protestant Church and Government. The Legislature intrusted to one of the law officers in Ireland the duty of enforcing the law, and it was absolutely necessary, if the law was to be regarded as worth anything, that they should know clearly what were the authorities on which they were to rely. Therefore it was that he had introduced the first two subjects of his Motion. If these reasons were not such as to overcome the serious evil of establishing a precedent for making known to the world the grounds of an opinion given by the law officers of the Crown, he would not press for these papers; but he should feel it his duty, at all events, to move for a copy of the Proclamation, unless he should be given to understand Her Majesty's Government would rather he did not. [Earl GRANVILLE: It is contrary to precedent.] Although contrary 179 to precedent, unless it was said to be hurtful to Her Majesty's Government or contrary to public policy, such was his opinion that he must press for it. He therefore would move that a humble Address be presented to Her Majesty, praying Her Majesty to order to be laid before this House copies of the papers of which he had given notice.
§ LORD LYNDHURST
I stand, my Lords, in a situation of some difficulty after the appeal which has been made to me by the right rev. Prelate. I entertain the greatest respect for the law officers of the Crown, for their learning and talents, and certainly I shall not, by any voluntary act of my own, put myself in opposition to them nor controvert their opinion, unless called upon to do so in consequence of some legal proceeding. I feel, also, another difficulty. It is possible the construction of this Act may come judicially before your Lordships, and I think a law Lord ought to be careful not to prejudge a question, when he may hereafter have to pronounce an opinion upon it sitting here as in a court of law. The course which I shall pursue in consequence of the appeal of my right rev. Friend is this: I will state the case shortly and plainly to your Lordships, and leave your Lordships to draw your own conclusions. First, with respect to the authorities to which my right rev. Friend has referred, I was not here when this question was discussed on a former night; but I understand it was said that the law officers of the Crown had given a unanimous opinion adverse to the opinion stated by my right rev. Friend. That statement I know on the highest authority to be incorrect. The law officers have not given a unanimous opinion on this subject. They were divided in their opinions. I state this on the very best authority. How the parts were cast I am not enabled to say, and therefore I cannot apply the ordinary rule of pondere non numero. The law officers of the Crown having differed, it is natural to inquire what opinion the law officers of the Crown, on a former occasion, expressed on this question. In the year 1852 the opinion of the Irish law officers was taken on the construction of the statute, and I understand Mr. Napier and Mr. Whiteside, Gentlemen of great learning, great intelligence, and great acquirements, gave an opinion entirely opposite to what has been stated to be the opinion of the present law officers 180 of the Crown. In addition to this, my noble Friend (the Earl of Derby) issued a proclamation directed against such proceedings as we are now considering. That proclamation would not have been issued without taking the opinion of the English law officers on the subject; nor would it have been issued if there had been the slightest difference of opinion between them. We have, therefore, the opinion of the Irish law officers of the Crown and the English law officers in the year 1852 opposed to the divided opinion of the law officers of the Crown in the year 1855. I cannot interpose in such a conflict—Non meum est tantas componere lites. I dare not come "within the wind of such commotion." I understand that my noble and learned Friend on the woolsack on a former evening stated that this, being a penal statute, must be strictly construed. That maxim of law no man will attempt to controvert. But there is another maxim, equally cogent, that every statute is to be construed according to its grammatical construction, unless there be some very strong reason to the contrary. The right rev. Prelate quoted on subject the opinion of a Judge of great eminence—Mr. Baron Alderson—that an Act of Parliament, whether of a beneficial or penal character, must be construed according to its grammatical construction, unless that construction would lead to some inconsistency, or be directly and obviously at variance with the object to which the statute is directed. That is an authority above all exception. Let us consider, then, what is the grammatical construction of this clause. The words of the clause are these: "If any ecclesiastical person professing the Catholic religion, or any member of a religious order"—shall do what?—"shall exercise any rite or ceremony of the Roman Catholic religion, or wear the habits of his order, except in certain places, he shall be subject to a penalty." What is the grammatical construction of this clause? We must consider the operation of the word "or," and I submit the construction is this: If any ecclesiastic of the Roman Catholic religion shall perform any rite or ceremony of that religion, or wear the habits of his order, except in certain places, he shall be subject to a penalty; or if any member of a religious order shall perform any rite or ceremony of the Roman Catholic religion, or wear the habits of his order, except in certain places, he shall 181 also be subject to a penalty. That is the grammatical construction of the clause; and where, then, is the difficulty? Does not every man know that the ecclesiastics both of this country and of the Romish religion are divided into certain orders, distinguished from each other by their peculiar habits? Are these not words sufficient to satisfy the grammatical construction I have pointed out? If they are, there can be no inconsistency in enforcing it. No proposition can be more simple. Why, my Lords, different orders have been established in the Church from the time of the Apostles. If you look into the Book of Common Prayer you will find that in the preface to the ordination service it is expressly stated that from the time of the Apostles different orders have existed in the Church. These orders, as mentioned in the document to which I refer, are the orders of deacons, of priests, and of bishops, all of them distinguished by different habiliments. If you look at the service for the ordination of deacons, you will find it expressly stated in one of the documents read on those occasions that these orders were instituted by the Apostles, in consequence of Divine inspiration; and it is stated, with respect to the order of deacons, that so distinguished an individual as the martyr, St. Stephen, belonged to that order. We therefore find that these orders existed from the earliest period—from the time of the Apostles—and that they were established by Divine inspiration. There is a similar document in the service for the ordination of priests, and the same thing is repeated in the service for the consecration of bishops. These orders are mentioned over and over again in the canons, and they have been sanctioned and confirmed by Act of Parliament. The statute of Elizabeth expressly states that no person shall belong to the order of deacons or priests unless he shall subscribe to the Articles of the Church of England. What reason is there, then, for not adhering to the grammatical construction of the clause, no one being able to doubt for a moment what that construction is? The only ground for overruling the grammatical construction of a clause is, that it contains something inconsistent with, that it leads to some conclusion different from, the scope and object of the Act. Passing, then, from this point, I come to the other statute adverted to by my right rev. Friend—the Irish Act. It is obvious that the 182 English Act was taken from it. The word "orders" in that Act can only mean ecclesiastical orders, for there is no mention in that Act of religious or monastic orders. The Acts are inpari materiâ, and must be construed in the same way. This appears conclusive. Another rule for the construction of statutes is to consider the evil they are intended to obviate—the object against which they are directed—for an Act must be passed in order to cure some evil and to give some remedy. What is the case in this instance? I have some recollection of the Act, and I had something to do with preparing it. It was thought to be important when it was introduced, in consequence of the excitement—I may say, the irritation—which prevailed in Ireland, to prevent, as far as possible, the occurrence of any circumstance which would increase that irritation. The object, therefore, of the Act was to prevent all public displays which might have that effect. How imperfectly that object would be attained if you were to confine its application to the mere appearance of a few monks walking about the streets in the vestments of their order—how little feeling their appearance would create! whereas the ceremony which gave rise to this question was one of the most exciting and irritating that can possibly be conceived. It is described as a most gorgeous ceremony, the bishops being present in their pontifical habits of the most splendid kind, with their mitres and crosiers, and various other accompaniments; and yet you say that such a case does not come within the Act, and that it is confined solely to the monks. Is this the mode in which the Act ought to be construed? Consider what is the evil intended to be remedied, and what is the remedy provided? Having made this statement, I wish to clear myself from any impression which may have been created as to the opinion I may be supposed to entertain with regard to the policy of enforcing the Act. I say nothing upon that subject; an Act of Parliament may have been very prudent at the time when it was passed for the purpose of correcting a certain evil, and it may be extremely imprudent to act upon it after a long interval during which it may never have been enforced. I hope your Lordships will not consider, from my having stated the case in this way, that I have given an opinion as to the propriety of enforcing the Act. I do not know enough 183 of the state of Ireland to form a sound opinion on the subject, and I therefore say nothing one way or the other respecting it. I am not called upon to give any such opinion, and I therefore decline to do so.
§ EARL GRANVILLE
My Lords, I do not rise to answer my noble and learned Friend, for I am entirely wanting in the qualifications necessary for a contest with him in a legal argument; and, although he commenced and ended his remarks with an assurance that he did not intend to pronounce any legal opinion, I am so utterly destitute of the knowledge of what constitutes such an opinion, that it appears to me that my noble and learned Friend did in the most clear and expressive manner give the strongest possible opinion upon the construction of the law. I regret that a question of recollection should ever arise between two Members of this House, but I certainly feel perfectly confident that the explanation I have given of what I stated upon a previous occasion is correct. I am aware that I am not always able clearly to express what I mean; but, being so confident as to what I meant on the occasion, I believe that I did then say what I intended. I certainly remarked to a friend soon afterwards that I saw I was represented in the papers to have given an opinion of the Irish law officers, when the opinion I had really given was that of the English law officers; upon which my friend observed—I am not in the least surprised at it, because I was below the bar at the time, and I could not understand a single word that you said. I think the noble Earl opposite (the Earl of Derby) has, on a previous occasion, remarked that it is unusual to give an opinion of the law officers of the Crown which is of a confidential nature, and I must therefore appeal to the right rev. Prelate to withdraw his Motion, except as regards the Proclamation, to the production of which, as it has been already published in the Gazette, there can be no objection. There is no doubt that the Irish law officers of the Crown were divided in their opinion upon the point of whether the prohibition to appear in ecclesiastical habiliments applied both to the regular and to the secular clergy. The question was referred to the English law officers, who gave their opinion that a distinction did exist between them, and that the words of the statute only referred to the regular orders. The Irish law officers were divided in their opinion, 184 but not the English. I believe that the noble Earl opposite, before issuing the proclamation which has been referred to, consulted the law officers in this country, who gave an opinion contrary in some respects to that which has now been given; but, I believe, they also said, that this being a penal statute it must be strictly construed, and that the opposite view to that which they had themselves taken might be argued; and they also added another doubt to which he need not refer. I cannot sit down without protesting against the allegation that any guilt is incurred by a Government in declining, upon any isolated occasion, to act upon the opinion which the law officers of the Crown may have pronounced.
THE LORD CHANCELLOR
My Lords, I felt the great force of the observation with which my noble and learned Friend commenced his address, as to the extreme difficulty there was in any of your Lordships—and more particularly those who were called law Lords—giving a construction of the penal clauses of an Act which may be hereafter brought judicially before them for their decision. I trust, in the few observations I am about to make, I shall follow the precept rather than the example of my noble and learned Friend; for commencing as he did in saying that he would not commit himself by expressing any opinion upon the subject, I must appeal to all your Lordships whether it be possible for any defendant who may hereafter be convicted on the ground of having committed an act prohibited by this law, to appeal to your Lordships, and hope to receive an impartial judgment from my noble and learned Friend? It is impossible; for although he said he would not give an opinion, yet he has given an opinion, in the most powerful, most able, and most artistical manner, in what he called simply stating the facts, and leaving your Lordships to draw the inference. Well, I have said that I would follow the precept and not the example of my noble and learned Friend. In reference to that subject, let me call the attention of your Lordships to what has occurred. A question was put the other night by the right rev. Prelate as to the processions which had taken place in Ireland coming within the provisions of the law. I was then quite unaware that any such question would be put to me. I had not, at that time, had an opportunity of looking at the Act of Parliament; but I then remarked 185 that, according to the wording of the clause, there were grounds for arguing that Roman Catholic ecclesiastics, wearing their clerical habits in the streets, were not within the purview of the Act of Parliament. I did not mean to say that if the question came judicially before your Lordships that would be my opinion. I merely meant to say that there were good grounds for urging such an argument. The right rev. Prelate has said, that although that might be the legal construction of the Act, still we are bound to give it a plain grammatical construction. My noble and learned Friend, I think, in his construction of it, has perhaps misunderstood the clause. He has told us what the word "orders" means; but the question is not what "orders" in general means, but what is the meaning of the word in this particular clause of the Act. I am extremely averse to give my construction of the word, because I may hereafter be called upon in my judicial capacity to put a construction upon it. But I wish to point out that the word does not mean, or does not necessarily mean, the orders of priests and deacons; but, simply, monastic orders. What are the words of the Act?—And be it further enacted, that if any Roman Catholic ecclesiastic, or any member of any of the orders, communities, or societies hereinafter mentioned, shall after the commencement of this Act exercise any of the rites or ceremonies of the Roman Catholic religion, or wear the habits of his order, save within the usual places of worship of the Roman Catholic religion, or in private houses, such ecclesiastic or other person shall, being thereof convicted by due course of law, forfeit for every such offence the sum of 50l."Now, my noble and learned Friend says that the words, "wear the habits of his order" apply equally to both nominative cases, which are separated by the disjunctive conjunction "or"—that is to say, to the words "any Roman Catholic ecclesiastic," as well as to the words "any member of any of the orders, communities, or societies therein mentioned;" but is that quite clear? Can a member of the monastic orders exercise any ceremony of the Church of Rome? Can they do it? That is a question of fact. If they cannot, then the first nominative case can only apply to the first verb, namely, "exercise," and the second nominative case will then naturally only apply to the other verb, "wear." There may, therefore, be ground for contending that the clause must be construed distributively, and that it refers to priests exercising the rites of their Church and to monks wearing the habits of their orders.
186 But I am very much afraid of being betrayed into giving an opinion upon the construction of an Act which I may have to construe in a different way on another occasion. All I said on the subject the other day was, that I thought that that may probably be the construction of the clause. Supposing it should be contended that a monk is an ecclesiastic, and that he may be punished, if not as a monk, yet as an ecclesiastic, is that the construction to be put upon the words of the Act? Supposing, instead of the penalty being a pecuniary one, it were enacted that those guilty of the offence should be punished with death, is it to be said that the clause should be construed so strictly that a priest not a member of any order wearing his habits of a priest not within the usual places of worship of the Roman Catholic religion, should be punished with death? It is a mode of construction which might be argued at your Lordships' bar, but do your Lordships think it could be done with success? But, whether it could or not, I wish to keep my mind perfectly unaffected by the arguments that may be urged upon it.
§ LORD ST. LEONARDS
said that he would not shrink from giving an opinion on this question, because when a member of the Administration of the Earl of Derby he had found himself in the position of being compelled to come to a positive conclusion with respect to what was the correct construction of this statute, and to stake his reputation as a lawyer and a statesman upon the soundness of his interpretation. Nay, more. As Lord Chancellor, he had been obliged to give effect to his opinion by issuing the Proclamation which informed the people of England and Ireland that a thing which was said to have been lawful was in fact unlawful, and that the penalty under the Act of Parliament would undoubtedly be enforced. But if the opinion which had been given the other way was right, he, of course, was entirely wrong. The Proclamation was sent forth upon the clear understanding, right or wrong, that that which had to-night been stated by his noble and learned friend (Lord Lyndhurst) was the law. Upon that point no doubt whatever was entertained either in the mind of the Government or in his own mind. He felt no difficulty in stating, that if he saw that he had fallen into an error, he would have judicially corrected that error; but on the contrary he did not believe that he was in error, and he had no hesitation in express- 187 ing before their Lordships a clear, confident opinion that that which he proclaimed to be the law in June, 1852, was the law, according to the clear meaning of the 26th clause of the Catholic Relief Bill, of 1829. With regard to the grammatical construction of the clause, and the argument respecting "orders," let them see what that amounted to. After having very properly repealed many penalties, and required ecclesiastics to make certain declarations, he found a proviso in section 11 to the effect that no penalty in the Act contained should extend or be construed to extend to any Roman Catholic ecclesiastic who should officiate in any place of religious worship, or exercise any of the rites or ceremonies of his religion, or wear the habits of his order, in any place of religious worship or in private houses. Here there was every single word that they found used in the other clause, and the words "of his order," applied exclusively and simply to the Roman Catholic ecclesiastics, and not to the monastic orders only. How then could there be a doubt as to the proper understanding and construction of the Act in the mind of any human being who was capable of reasoning. And, while they were thus talking of the Act of Parliament, they must not lose sight of what was the real intent of the Legislature in enacting it. They were not bound even by the grammatical construction of the Act; on the contrary, there might be strong reasons for setting themselves against that construction; but, if they found that the intention of the Legislature and the grammatical construction concurred, there was nothing to find fault with. It was intended, and it ought to have been intended. It was policy, and it was the true policy. The policy of the law before this Act was passed was to prevent any public displays that were likely to give rise to irritation, and the purpose of this Act was to continue that prohibition, to enforce it, and even to carry it still further than before. And why was it in the Act? Because, although the country was resolved to have no more Jesuits—in which it acted wisely—within its dominions, and not to allow these monkish orders to come into the country, it did tolerate them so far as to allow those who were already here, who belonged to the country, or who came here within a short period, to remain under certain restrictions, and this Act was intended to apply to them while they remained. The intention of the Legislature was not to put an 188 end to Roman Catholic establishments, but it was desired to exclude the monkish orders. Could it then be maintained that this Act was only to apply to that body whom it was intended for the time to come wholly to exclude from the kingdom, but was not to extend to those who were allowed to remain, and form a permanent part of the community? It was impossible, in his opinion, to do so; and he could only say, in conclusion, that, having read the clauses over frequently, he had been unable to bring himself to entertain the slightest doubt that the words so often quoted referred both to the secular and the regular priests of the Roman Catholic Church.
THE BISHOP OF EXETER,
in reply, appealed to the House whether it was fair for the Government to obtain the opinions of the law officers of the Crown, and to keep their Lordships altogether in the dark respecting them. He must say that that was not equal justice. After the speeches they had heard to-night the case had really become ridiculous, and he should not think it worth his while to disturb the practice by moving for any other papers than the Proclamation.
§ Motion, as amended, agreed to.
§ House adjourned to Thursday next.