The Express.
London, England, 1851-05-31 00:00:00

THE EXPRESS, SATURDAY EVENING, MAY 31, 1851.

England. (Hear, bear.) He called- upon her Majesty's
government to declare the law fairly and explicitly, pro-
mising, if they did so, that he would not introduce any pro-
viso either for purposes of delay or for other purposes.
Public opinion edled for legislation, but for legislation clear
and defined, and not obscure legislation. It required an
act to resist the l'ope, but, whilst the present measure did
not mist the " aggression," as it was called, it was mode to
insult the feelings of large masses of her Majesty's subjects.
(Hear.)
Lord J. RUSSELL said the Attorney-General had
stated, the other night, his reasons for not agreeing to the
proviso of the hon. member fur Athlone.
After n few words from Mr. Wsiroit, which were
inaudible in the gallery,
Mr. KEOGH raid he would not divide upon the proviso
now. as there was some expectation that he would after-
wards obtain the support for it of the hon. member for
Midhurst. (A laugh.) He preferred that hon. member's
support to his oppootion.
motion WAS then withdrawn.

The proviso, as amended, was added to clause 1.
On the motion bcicg put that clause 1 stand part of the
bill,
Sir J. GRAHAM rose and said—Sir, having been
indulged by the louse with a full opportunity
of stating my objections to the principle of this bill on the
wood readiug,T have carefully abstained from taking any
part whatever in the discussions in committee; but since
we have now arrived at the conclusion of the first clause,
which was not part of the measure when last I had the hon-
our of addressing you, atd feeling great doubts with re-
spect to the real import of this clause, I hope I may be
pardoned if I shortly addicss you now taking care not to
re-state my opinions as to the principle of the bill, which,
however, remain unchanged—(hear, hear)—but confining
myself strietty to the clause now before yon. It was the
policy of those opposed to the principle of this bill to have
left the arrangement of the details to the great majority who
support it, and to have waited afterwards until the bill
fame out of committee fur another opportunity to state their
objections. But Ido think thu clause so important—more
especially as there is so much ambiguity about it—that I
am anxious some discussion should now take place, in order,
if passible, to obtain some explanation of what is its real
import. With respect to the infention we naturally
look to the preamble. Now this clause is a clause which
her Majesty's government, at the suggestion of the hon.
member for Midhurst, have adopted. You will observe
that the preamble of her Majesty's government is alone-
what peculiarly worded; but I shall only dual with that
part of it which applies to the first clause. It says :"Whereas
divers of bar Majesty's Roman catholic subjects have as
mimed to themselves the titles of archbishop and bishops of
a pretended province, anal of pretended see, or dioceses,
within the Lofted Kingdom." Rather peculiar phraseo-
logy—for you will:see from words following that they apply
to a rescnpt—one rescript—of a particular date, which
was strictly applicable to England only, and that
the wools "L rifted Kingdom ' are ouly adopted
on this principle, that England is part of the
" United Kingdom," the rescript wit being extended to
Ireland, but expressly to England. This preamble is en-
tirely limited to the rescript of the 29th of September,
18-10; and, although the words " United Kingdom " arc
inserted, the uuly portion of the "United Kmgdoin " to
which that rescript applied was England. Now, with
reference to these words of the government, if we are to
seek to obtain the meaning through the preamble, it would
seem that this clause should apply strictly to England, as
the preamble is strictly limited to the one rescript of the
29th of September, ISdO. (Hear, hear.) Now, let me
call attention to the preamble proposed to be moved
by the honourable member far Midhurst, and judging
by his preamble let us endeavour to discover the meaning
of the clause. Does he refer only to this one rescript
Nothing of the kind. Look at the words of which he has
given notice. Ile proposes, after the word "pounds," to
omit all the following words down to the words " United
Kingdom," and to insert the following most important and
significant words And whereas the said brief, rescript,
or letters apostolicisl, and all such or the like acts or matters
touching the Queen, her crown, her regality, and the
realm." There he puts in all rescripts, fur he says, " all
such or the like acts or matters touching the Queen, her
crown, her regality, and the realm." That is to say, that
in his opinion the rescript of the 29th of September touched
the Queen, her crown, and her regality, and was an encroach-
ment on the realm. Ile uses the word "all "—whether
future or antecedent—anal he makes all these instruments

Icome within this declaratory clause. (Yeer.) Therefore,
these words are different from those used by her Majesty's
goverument, inasmuch as they do not confine the preamble
to the one rescript of the 29th of September to England,
but extend to the United Kingdom and to all rescripts
either future or past. (Hear, hear.) Now this would
appear to me an iudicatiou of a very different intention on
the part of the goventnient who adopted this clause, and of
my hon. and learned friend (Mr. Walpole) who proposed it.
Again, with reference to the intention of her Majesty's
government, let me refer to the conduct they
pursued on the first bill we had before u.. That
bill contained second and third clauses following that
which is now the second clause of this bill, but which se-
cond and third clauses her :Majesty's government upon de-
liberation withdrew, for reasons very fully stated at the
• time by the right hon. baronet the Secretary fur the Home
Department. On full consideration, and alter hearing ar-
gument. in thin house, they were satisfied that that second
and third clause would interfere with certain spiritual
functions of the episcopacy which they were unwilling to
touch either in England or Ireland —such, for instance, as
ordinations, collutieu to benefices, and various other ectlesi-
anneal functions which they were most anxious not
to disturb. Now, is it the intention of the
government to adhere to that intention which they, on
deliberation, announced to the house when they refused to
pernevere with the second and third clauses of their former
bill ? (Hear, hear.) It is most desirable to come to a dis-
tinct uuderstanding on that subject. (Hear, hear, and
cheers.) And here the difficulty of arriviug at a conclusion
of what is intended by the government, has bred increased
by the views expresek d by the law officers of the crown during
the progress of the debates upon this measure. (Hear,
hear.) lam sorry the right hon. gentleman, the Master
of the Rolls (Sir J. Remaly) is not in his
place, fur he, when Attorney•Ciencral, had given au opi-
nion to which, ou refketion, he distinctly adhered—namely,
that as the law now stands there is no impediment whatever
to the Pope dividing any portion of this country into sees,
or dioceses, or distracts—give it which name you please—
for ecclesiastical and episcopal purposes. (Hear.) I took a
note of his words at the time, and I believe he would not
deny, if he were present, that he gave that opinion. (Hear.)
I understood the learned Solicitor-General to have
said recently that by law at this moment any
such rescript was in his opinion illegal; that this
clause was a declaratory clause, and did not alter the law,
but that it clearly declared the law as it now is; and he
went on to say, as to the etl'ect of such a declaration in all
the inferior courts, which all courts would be held to be,
that lee pari ntateria, it would be received as a declaration
of law in all courts of the United Kingdom. Now, if that
be so, and the learned Solicitor-General does not dissent
from it, it is clear that this extends far beyond the limits of
Kuglakid—(hear, hear)—far beyond the narrow ground of
the particular rescript. (Hear, hear.) This is laying
down a general law, applicable to all parts of the United
Kingdom, and peremptory in all the courts of judicature
within the realm. (Hear, hear.) The distinctly expressed
opinion of the hon. and learned gentleman, differing from
the opinion of tho right hon., gentleman the Master
of the Rolls, is this—that every rescript from the
Pope, appointing a bishop in any part of the United
Kingdom, and assigning to that bishop may district or ace,
is illegal, and must be held to be illegal in every court of
law. I have now shown what is the intention of the govern-
ment, if the Solicitor-Oeneral is to be taken as its expo-
nent; and I have shown the Intention of my hon. and
learned friend (Mr. Walpole) as shown in the words, as
plain as words can be, of the amendment of the preamble
which he is about to propose. Here then we see the inten-
tion in this matter on both aides of the house. I now
proceed ta consider what you have done in this claim. I
must say that the operation of the clause " throughout the
United Kingdom," will in my opinion be most fatal to the
peace of one portion of the L. nited Kingdom. (So we un-
derstood the right lion. baronet ; but at this port:on of his
speech he was very badly heard in the gallery.) Now, if I
recollect rightly what was said by the noble lord when he
intimated to the house his intention to withdraw the 2nd
and 3rd clauses of the original bill, he used a very remark-
able expression. Ile said such was the subtlety of this spi-
ritual power with which we had to contend, that language
failed fur our purpose, and that though having all the ap-
pliances of the law officers of the crown, he hail discovered
that in endeavouring to prohibit that which he sought to
prohibit, he uuinteationally always struck at the same time
at that which he did not seek to disturb. This was
the idintitul expression of the noble lord. Well now
see what the noble lord has done. In very despair, aban-
doning his own Language, abandoning all the counsel of his
own law advisers, he comes to my huu. and learned friend
(Mr. Walpole), and he adopts my hon. friend's phraseology
and declaratory clause, having probably the limited inten-
tion which he avowed when be withdrew the clauses which
affected ordination and collation, but nevertheless taking
the general declaratory clause which the gentleman from ,
whom he takes it proposes shall have the largest extension.
(Hear, hear.) But does he consider, if this will I
touch ordination, what he is about to do? (Hear, I
hear.) The Roman catholic religion is an episcopal
religion. All the Roman catholic bishops throughout the
United Kingdom are appointed by the Pope, through the
agency of a rescript of the Pope. If you declare the re-
script to be illegal, everything which follows from that no-
mination by the Pope becomes illegal also, (Cheers.) You
tiontlmwentb,oct.'
ma,,Roinimpc.an
scaibtleholier
cannot have ordination without a legally constituted episece
tistehep,iofryd9inuatltnateactehorde appointment
the ordination is illegal, the title of the parochial priest be-
comes
vitiated also, and all the acts of that priest, includ-
ing the marriages he has solemnized, become
illegal
also. I think there has been a praiseworthy desire
on the part of her Mejesty's government to restrict the
power of prosecuting tor felony to the responsible ;
officer for the crown. But if you agree that that which'
you declare to be illegal is au indictable offence. I
then you withdraw such control, and it is then in the
power of anybody to indict before a grand jury I say
that that state of Wain' is re the strives dangers—(hear, hear)—pandgrnanl taeywitthhat would
reader the peace and the government of Ireland utterly im-
possible. (Cheery.) And, above all, I say, if you are to j
legi i slate n this matter, legislate distinctly, legislate plainly I
bear.
adtolu
itsn ' t
pr •
esent
e t hnatdt
uifbnoitnnoe
un
—(cheers)—don't leave doubta and inuendoes, don't leave
is
ten t,tiwoe shibeasct
soughtothisy ourfporeirnamiten
ntb ih
le Li'
ptuir.noneemhartbigiv

(Cheers.) So long as these things are not fully considered,
rsoLlvnaevceteadpethrereexuit!
)fsonndewimtlLttheimsoiLutritaonntofpothne
portion
noubotf
the United Kingdom. (Cheers.) But now let us supply the
diction of the Solicituneffeneral to another case. The war-
,
denship of Galway was converted into a bishopric by are- ,
script of the Pope in 1531. For twenty years that appoint-
most has remained unchanged. There have been various
governments since then, and no government has attempted
to interfere. Suppose the declaratory clause has become
law. Every reserapt of the Pope, according to the doctrine of
the Solicitor-General, in purl ntaterio will be null, void,
and illegal. Well, if there is any force in what I have ad-
dressed to the house, it is quite certain that the bishop of
Galway acting in his spiritual capacity under the rescript
of the Pope would be at once open to au indictment al I
being guilty of a misdemeanor. (Hear, hear.) What
becomes of sll the acts of the bishop of
Galway fur the last twenty years ; of all his
ordinations, and of all the acts of his priests?'
(hear, hear.) Their origin was null and void,
and they will neec ssarily be null and void. (Hear.) I
hear.) (here you open up anger and litigation, and con-
fusion in social ranks, which is melancholy to contemplate,
and which, I believe, will be quite fatal to the peace of
Ireland. (Cheers.) Is the recognition of the authority of
papal hulls in spirituals new in this country ? Is there any-
thing to lead us to make the declaration that the exercise
of spiritual powers shall be null and void? (Hear, hear.)
I say the recognition of such authority has been frequent,
in the most marked caws. It has been made in
that case on which the noble lord (Lord J. Rus-
sell) dwelt with commendation the other evening, in
the sixth clause of the Bequests Act passed (the hon. gen-
tleman went on to say), when he (Sir J. Graham) was him-
self in office, was carefully and cautiously framed; but it
contained the most direct recognition of the spiritual au-
thority of the Roman catholic prelates, and indirectly of the
canon law, siuce their decision would be guided by the
canon l.sw of their church. In the case of the claim of Sir
Augustus d'Este to the dukedom of Sussex, conducted at
the bar of the House of Lords by Lord Truro, then
Sir T. Wilde, Dr. Wiseman, then vicar-apostolic,
was examined, and stated that he was an ecclesias-
tits' judge iu this country, appointed by the Court of
Rome, in mutters relating to ecclesiastical jurisdiction.
I, said the hon. member, was a party to the introduc-
tion of the Bequests Act in ISO. One of the last acts of
Sir R. Peel's government in 1816 was to introduce, through
Lord Lyudhurst, then Lord Chancellor, in the House of
Lord., a bill which, as introduced by him, went the whole
length of repealing the 13th Elisabeth, which declares the
receipt of bulls and rescripts from Rome to be illegal. Now,
I may be permitted to read to the house a short passage
from Lord Lyndhurst'a speech in introducing that
bill. He says "They tolerated the catholic prelates, and
they knew that these prelates could not carry on their church
establishments or conduct its discipline without holding
communication with the Pope of Rome. No Roman catholic
bishop could be created without the authority of a bull
from the l'upe of Rome; and many of the observances of
their church required the Mlle sanction." Now I beg the
house to at tend to these words. Lord Lyndhurst, at that time,
spoke the sense of Sir It. Peel', cabinet, and there was not a
member of that cabinet who was dissentient upon that oc-
casion. Their principles and opinions are to be gathered
from these observations of Lonl Lyndhurst. Re says—
" The moment, therefore, that they sanctioned the ob-
servance of the Itornan catholic religion in this country,
they by implication allowed the communication (with the
Pope) prohibited by this statute, and fur which it imposed
the penalties of high treason. If the law allowed the
doctrines and discipline of the Roman catholic church,
it should be permitted to be carried on per-
fectly and properly; and that could not be with-
out such commuuication." And then he says,
" On these grounds he proposed to repeal the set."
The proposition was the entire repeal of the 13th Elisabeth.
The hill assumed another form during its progress through
the house ; and in the end it repealed only the penalties and
not the statute itself. The intention of Sir Robert Peel's
cabinet wan, boa ever, to repeal the statute itself. Lord
Lyndhurst further expressed surprise that such a statute had
never been tweed by the Irish Parliament, though in that
country three-fourths of the inhabitants professed
the Roman catholic religion. I am not at all
surprised. He states the very reason—that three-fourths
of the inhabitants of the country are Roman catholic..
(Hear, hear.) In England it is quite possible to treat the
Ronnie'. catholic, as a sect ; but in Ireland the Roman
CalhUliel are a nation, and they must he treated as
a nation. (Loud cheers.) Arid if the legal effect
of this declaratory clause be what I anticipate
it will be, and what her Majesty's Solicitor-
General says it must be, then I apprehend, that under
colour of this clause we shall go infinitely further than
her Majesty's government ever intended to go when they
introduced thus bill. I conceive that the second clause,
with its 100!. penalty is as nothing compared with this
first clause. I believe that this clause goes infinitely further
than the second and third clauses of the original bill. This
however is strictly a matter for legal opinion • and
I may be in error. But I must say that 1 ant
alarmed by these doubts and by this ambiguity.
(Cheers.) I say, if the law be imperfect render
it perfect; if the law be plain, let the plainness be
mule evident. It is inipossible to be satisfied with the bill
as it now stands; and l do fear that we should teen see a
desire to proceed iu the seine direction with new enactments
(so we understood the right hon. gentleman). I fear that
this will be the declaration of an intention to revive dur-
maul laws. (Loud cries of " Hear, hear.-) I am greatly
Alarmed by the animus which has suggested this. (Hear.)
We have heard a good deal of the statute of Richard the
Second ; and I, myself, have some doubts whether, accord-
ing to the letter of the law, the statute of Richard dues
nut do all that your declaratoryC clause dues. (Hear,
hear.) But there is an important consideration with
regard to these old statutes. Trial by jury accompa-
uied those statutes, and, as Curran well said, they hang up
like rusty armour, old and impure, because they arc not
used, and it is only activity which would render them tole-
rable. lam almost snore alarmed by the ambiguity of this
clause than by the threats which we hear front those who
support it. But above all I am most alarmed by the indi-
cation that if this declaration be not attended to, and if the
reecripts be not discontinued appointing bishops and arch-
bishops in Ireland—and we have seen these retcripts issued
during 200 years notwithstanding these statutes—an attempt
will be made to revivify these old laws, and to bring them
into operation. Nothing has gratified me more than the con-
duct of her Majesty's ministers iu withdrrawing the second
and third clauses of the former bid. I thought that it was
an indication of the spirit which actuates their councils
generally on religious questions—a spirit of which I entirely
approve. (Cheers.) I, therefore, think that the adoption
by the government of this clause, at the instance of my
hon. and learned friend (Mr. Walpole) was most unfortu-
nate. I cannot satisfy myself as to the precise extent to
which we could carry it if we adopt it. Under these cir-
cumstances I could not consent to pass it ; and at all events
1 cuter my protest against this clause and I ahall be pre-
pared to vote against it. I hope I have kept my worst and
spoken only upon this clause without reference to the
general scope of the measure. (The right hon. gentleman
resumed his seat amidst great cheering from several parts of
the house.)
The ATTORNEY-GEN ERAL expressed his regret that
his right hon. and learned friend the Master of the Rolls
was not in the house, in order to explain his opinions on
this question in reply to the right hon. baronet. The right
hon. baronet repreecuted that his right hon. friend, in the
first discussion upon this hill, had stated to the house that
he had given an opinion that the Pope had the power by
law to appoint ecclesiastics in this country with dioceses and
secs for ecclesiastical purposes. Ile must say at once, th it
the right hon. baronet was under a complete misapprehen-
sion.

Sir J. GRAllAM—Perhapa the house will allow too to
read the rule I took. The Master of the Rolls used these
words—. lie now said, and he believed, and be had since
been called on and had since given the opinion, that there
was nothing in the law to prevent the Pope from parcelling
out the country into archbishoprics and bishoprics."
The ATTORNEY-OEN EItAL was neverthele,.. ratinfied
that there was some inaccuracy in the note of the right hon.
baronet. (Cries of " Oh, oh. ) His right hon. friend had
given no opinion on this subject to which he (the Attorney-
General) had not been a party. No such opinion u that
referred to had ever been signed by hint, and of course not
by his right hon. friend. _ _

'An iron. MEMBER—Signed: Did he ever say so?
(Hear, hear )
Sir J. GRAHAM—The word., were used is this house.
[The right hon. baronet re-read the words.]
The ATTORNEY-GENERAL had understood the right
hon. baronet to refer to a legal opinion signed by his right
hon. friend , and he appealed to hon. and learned gentle-
men around him, if, when the word " opinion" was used
in connection with u law officer of the crown, they were
not to understand that a regular document was meant?
But there was obviously a mistake in the representation of
this matter. Ills right hon. friend could never have used
the words without some qualification in the context. The
best proof of this was that the original bill was drawn up
by his right hon. friend himself, and in the preamble of
that bill he recited, as one of the recitals on which the
enacting clauses were founded, that "the attempt to esta-
blish, under colour of authority from the see of Rome or
otherwise, such pretended sees, provinces, or districts is illegal
I and void," &c. Therefore his right hon. friend could never
have usal the words quoted hythe right bun. baronet with-
out emphatic qualification. With respect to the general
argument of the right hon. baronet he (the Attorney-
General) would take the liberty of saying that nearly all
, the points which were now raised had been's:deed by other
! speakers in the previous discussions; and as far as they
were capable of being answered they (the law officers) had
answsred them, and he believed to the satisfaction of the
house. (Cries of" oh," from Irish members.) To satisfy
the hon. gentlemen opposite (Irish members) was of
course a thing not to he expected. (Laughter.) The right
hon. baronet hail not attended the debates on the bill
since its second reading, and therefore perhaps was not
! aware that these points had been raised over and over
again. The right hon. baronet now contended that this
clause created and enacted a new law. The government I
denied that altogether. When this clause first came under j
discussion the opinion which he had given, and the opinion'
of the government, and the general opinions in the profes•
lion had been, that it did nothing more, in point of fact,
than declare the law which was contained in the recital of
the preamble and the enactment of the then first clause.
The reasons which had induced the government to went to ,
the suggestion of the hon. and learned member for Mid-'
burst had already been detailed; but it was under- I
stood all along that the government never be-1
lie ved the clause did more than repeat la a
fore solute roamer that which had already been de-