The Sun.
London, England, 1854-03-15 00:00:00

scruples against the taking of an oath to make a solemn
declaration. He congratulated the house that so far as
regarded its members the Government intended to in-
troduce a bill that would enable a member to go to
• ; ;, the. table of the house and take an oath which would
not violate his conscience. His desire was that the
witness should be allowed to 'make the declaration
simply on stating that he had a conscientious objection
to taking an oath. Within the last few years many oaths
had been abolished which were formerly taken by the
Excise, in the Bank of England, and by pawnbrokers
and others in matters of trade. In consequence of bills
emanating from the House of Lords, a vast number of
Unnecessary oaths had been swept away from the
statute-book, but it was in the power of Parliament to
Barry this much farther. The members of the House
of Lords, tfroba time immemorial, used not to be put on
their oaths on the most 'important questions affecting
the life of a brother peer ; but they' had the power of
saying simply, "On my honour, guilty," or "Not
guilty." Now, in the progress of legislation and civi-
, Tisation, why should not the community at large have
the power of giving verdicts or of making affirmation ?
The bill which he asked leave to introduce might be
said to consist of twe provisions. One was, that any
person presiding in a court of justice as a judge should
test a witness whether he ought to be sworn, and if the
witness had conscientious objections to taking an oath,
he should be allowed to make a declaration, and, if he
made a false declaration, he should be subject to the
penalties of perjury.
Mr. HADFIELD seconded the motion.
Lord PALMERSTON was ready to admit that there
were many occasions when a declaration might be safely
substituted for an oath, but he could not agree with his
honourable friend to abolish the oath in judicial cases.
However, a bill had been introduced in another place
which was precisely the same in principle as this, with
the single exception, that it left to the Court to decide
whether the objection to take an oath was conscien-
tiously entertained or not. He confessed he preferred
that bill, as it placed a just restraint on the witness
which this bill did not contemplate ; but at the same
time he should not object to the motion for leave to
bring in the bill. •
Mr. HUME concurred with the noble lord, and hoped
the bill would not be pressed forward until they had
the Government bill before them.
The ATTORNEY-GENERAL would explain
the object of the bill in one word. (Hear.) It
mrouid enable ,all parties who in the opinion of the
pourt, really entertained conscientious scruples to the
takipg of an oath, to substitute a solemn declaration •
~but before a person, could claim the relief which the bill
afforded, he must have satisfied the Court that his objec-
tions were both sincere and conscientious.
Mr. DRUMMOND opposed the introduction of the
bill.

The house then divided, when there appeared . • For the motion
. Against it
Majorityaccordingly given to bring in the bill.
LAW OF TREASON IN IRELAND.
Mr. WHITESIDE moved for leave to bring in a bill
to assimilate the law and practice existing in cases of
treason in Ireland with those in England and Scotland.
In the reign of William 111., when our religious liber-
ties were established, there was introduced an act to give
certain advantages to persons accused in this country of
treason which had never yet been extended to the sub-
jects of the Queen in Ireland. Previous to that time,
however, a wise and merciful practice had
,prevailed of
giving a copy of the jury panel to the prisoner ; and in
the reign of George 111. the accused got permission to
be defended by counsel. By the statute of Anne a copy
of the indictment, together with the list of the jury and
a list of the witnesses, was to be delivered to the pri-
soner 10 days before the trial ; and at the Union those
privileges were extended to persons in Scotland, the
preamble of the act stating that it was just that the laws
should be identical in all parts of the United Kingdom.
He (Mr.Whiteside) was one of the counsel for Mr. Smith
O'Brien, and he had no hesitation in saying that if the
same lavis had prevailed in Ireland as in England,
the prisoner would have been acquitted. They had
'struggled to obtain a copy of the jury panel and a
list of the witnesses but both were very properly
refused by the Whig law officers, on the ground
that the statute of Anne did not extend to Ireland.
One of the principal witnesses against Mr. O'Brien was
ispersoit named Dobbin, who was not an informer, but
a spy. This person was entirely unknown to the legal
advisers of the prisoner, and, of course, his counsel had
to do what his countrymen often did, namely, to draw
upon their imagination for the facts, and to cross-
examine the witness at hazard. At the conclusion of
the case, and when the Lord Chief Justice was charging
the jury, a witness arrived, named Dalton, who said
that Dobbin had proposed to him to get up a sort of
little Titus Oates' plot, and to give false information
respecting the prisoner. Mr. O'Brien's counsel imme-
diately applied to the court to permit this new witness
to be examined and confronted with Dobbin. That was
accordingly done, and the Chief Justice told the jury
that if they believed this new witness they must discredit
the evidence of the spy. (Hear, hear.) The house
would remember that the life of John Frost had been
saved upon a technical point relating to the deliverf of
the jury panel and the list of the witnesses ; and he
should like to have it explained why they should have
one law for a Welsh linendra_per and another for an
Irish gentleman—one law for Win. Smith O'Brien and
, another for John Frost ? (Hear.)
"Viscount PALMERSTON admitted that it was de-
sirable for the same law to prevail in Great Britain and
in Ireland, and he should not oppose the motion.
Leave was accordingly given to bring in the bill.
DISPOSAL OF THE PROPERTY OF NUNS
Mr. WHITESIDE moved for leave to bring in a bil
to secure to persons under religious vows the free exer•
cise of their lawful rights in the disposal of their pro-
perty. He would at once admit that the bill related
principally to ladies who were termed nuns, and who were
inmates of convents. He would offer no observations
respecting conventual establishments, but he would show
that a practical grievance existed, and would ask the
house to supply a practical remedy. The law of Eng-
land relating to the right of a person to dispose of his
own property as he pleased was clear, but that relating
to what was termed undue influence was not less so.
No attorney could take a deed or conveyance from his
client, no parent from his child, no guardian from his
ward, no husband from his wife, no physician from his
patient, unless precautions were taken to prevent the
undue exercise of that influence which the one party
might acquire over that of the other. In like manner
the law was equally precise respecting spiritual in-
fluence. The first decision on this point was by Lord
Northington in a case in which an Independent
preacher had exercised a great influence over a widow.
He comforted her in spiritual matters ; he took her
about from place to place, and he kept her under com-
plete restraint. Finally he took a conveyance of her
property ; but Lord Northington said he would spoil
the independency of the Independent preacher, and make
him restore the money. Afterwards Sir Samuel Romilly
impeached a deed which had been obtained under similar
circumstances. He decided it in ignorance of the pre-
vious case; but be brought to bear upon it the full power
of his great intellect, and he came to the same conclusion
as Lord Northington had done. He might be asked
where was the necessity to interfere with deeds or wills
executed within the walls of a nunnery. It might be
said that the general principle of law to which he had
referred was sufficient. But the difficulty was in obtain-
ing evidence of what took place in a nunnery. There
were four cases where wills executed by nuns had been
set nide. In one, decided in the Irish Court of Exche-
quer, a lady was professed as a nun before she was 21
years of age ; she then conveyed her property to the
convent, but afterwards escaped from it, and then sought
to set aside her deed. The learned judge held that, as
she had taken the veil when under age, in violation of an
express agreement, and had conveyed away all her pro-
perty under the influence of the ladies of the institution,
the case came under the same rule as those of guardians
and wards,• and he declared the conveyance void. In
another case, a family of great respectability in Ire-
land was concerned, that of Mr. M`Carthy, late
member for Cork. Two ladies of his family entered a
conventual establishment near Cork ; after they had
been there some years, their father died, and they be-
came entitled to 10,0001. each. It was always under-
stood by their relatives that this property would be be-
queathed to them ; but the institution claimed the whole
of the property in virtue of the vows of poverty and
obedience which the ladies had Wien. This was a direct
infringement of their free choice, and yet these institu-
tions sought to take advantage of the noble principles of
ouielaW. The; fund was vested in the hands of trustees,
Who refused 'to give it up to the coevent ; the managers
theretheefore instituted a suit in Chancery, in the name of
adiel themselves, who had no wish to proceed
againet their relatives. The hon. and learned gentle
man then read a report of the ease, from which it ap-
peared that the bishop had told one of the ladies
thateek_e M}ust observe the vow of obedience. She re-
flise.' end said the matter should go into a court of
equityolPno which • •
lawyers on histhe bishop replied that he had
aidehel as well, and that it was too good
a thing to
eq. ..Both of them gated that they
had een ee
ore to sign the deed against their
will band or.O a• -
the hand, of al a.e42 the pen might as well be put into
compels . Maria, one of the sisters,
had been
cheere;Lete an affidavit that she
executed the deede
Catherine, the other arluelatear.iutatede
y as a religious recluse.
that she had suffered
unheard of mental to
she refused to execute
the deed, and was- oulY,er-ile le
`do so by being
told that her refusal was Zeiorts"ani•clon to
The Lord Chan-
cellor of Ireland, in ,his judgment wide
'e inmates of the
house were not free agents. but we're 'enslaved by the
re. and were compelled to devote all
~
vows they had take
the benefit ,of the c 'of ' '
their property for
0 inanity ; and as
such they must be treated as Persons legally dead. He
likened te; case to that of a gaoler extorting a deed from
working of
a prisoner, and declared that the court would not listen
to such a claim. This case showed nunsere
.11"ele Placed in
the system. Since the reformation
a worse position than before. Under the ancient law
they were treated as dead, and administration was
granted to the relatives of their property. Owing to the
present absurd :system of not recognising the facts of
these conventual establishments, the inmates were de-
prived of this protection. In another case, "Megg
Y. Megg," which also came before the Lord Chan-
cellor of Ireland, judgment was given against the
convent, but an appeal had been made to the House
of Lords. Th 3 object of this bill would best be
shown by its preamble. The title was, " A bill to
secure to persona under religious views the free exer-
cise of their laewful rights in the disposal of their.
Property." The preamble was to the following effect .
--4*--Wkereas 10 males on being received into col? -
01041ilee as peofe:s -ed nuns, bind themselves by oertana
~2,7l_iet . !keieue- _ tgs ' others by vows of
.obedience. to
siiii , muug to( be heir religious superiors or s.piri-
,e', - e l?P.' ei' • pi •,, teas cases have been established
.
;::,,,,4*&.:;46.v.
(
, -... -
- -...,... ii,.
,i.

in evidence before the tribunals of the realm in which
females, influenced by the importunities of their superiors
or spiritual directors, exercising a colourable' authority
derived from such vows, have been induced to make dis-
position of their property contrary to their expressed
wishes and desires ; and whereas such dispo -.tions of
property have been declared void and set aside, as being
obtained by undue influence, and contrary to the policy
of the law ; and whereas, by reason of the secluded life
enjoined upon such females, the circumstances attendant
upon such dispositions of property are, with the excep-
tion of the fact that they are under the restraint of such
influence, exclusively within the knowledge of the per-
sons obtaining such dispositions of property or their
agents, and evidence is therefore not morally accessible :
be it enacted," &c. The great difficulty was, owing to
the secluded lives of nuns, to get at the circumstances
of these cases. He therefore proposed to enact that all
such dispositions of property should be taken to
have been obtained by undue influence, unless evi-
dence was given on the contrary. The second clause
(there were only three) provided that the treatment of a
person as a nun should be evidence of her having taken
the vows. The effect of this enactment would be to shift
the onus probandi to the authorities of the convent, and
call upon them to show that the property had not been
obtained under that spiritual authority which amounted
to undue influence. To restore their free will to the in-
mates of nunneries, which was destroyed by the autho-
rity of the superioress and others, he submitted this bill
to the house. No objection need be taken to it, except
by those who were anxious to clutch at property to which
they had no right by an abuse of their spiritual influence
The hon. and learned gentleman concluded by moving
for leave to introduce the bill.
Mr. G. MOORE said the case of nuns was most analo-
gous to that of husbands and wives. In the case of the
latter, the legal restriction was wholly nugatory, and it
would be so in the case of nuns. The affidavit quoted by
the hon. and learned gentleman proved one thing, if
true,—that there was free access to inmates of convents,
and free persuasion by their friends, such as existed with
regard to no other class of women in this country. The
only possible effect of the bill, and he believed its only
object, would be to place nuns in a position of pain and
inconvenience. (Hear, hear.)
Mr. BOWYER said he would not follow the hon.
and learned gentleman through his cases, which, if they
proved anything, proved that legislation was unneces-
sary, it being held that deeds executed under such cir-
cumstances were null and void. Every unprejudiced
person must see that there was no necessity for legisla-
tion here. These cases came before Protestant judges
and juries, who are no doubt looked at the instruments
with a salutary jealousy, and upheld the well known
principle of the English law that a disposal of property
could not be made under constraint. He objected to
the preamble of the bill ; it prejudiced the whole matter,
and condemned conventional establishments. Its lan-
guage was scarcely less strong than that of the hon. and
learned gentleman's speech. It was impossible for
those who believed conventual establishments to be a
most essential part of the discipline of their church,
and a great means of education, to assent to such a
bill as this. He agreed with the last speaker that
there was no necessity for legislation ; but he would
not have objected to a bill which put the inmates
of convents on the same footing as married woman.
Such a proposal would have been fairly met
and discussed. Bat the principle of this bill was
contrary to the ordinary rules of jurisprudence.
It declared a deed void unless it were proved not to have
been executed under undue influence, thus calling on the
supporters of the instrument to prove a negative. This
was not done in the case of prisoners even, or of mar-
ried women, but it was simply required that the deeds
should be executed with certain formalies. A mass of
litigation would be caused if this bill was to become law.
It was to be regretted that the hon. and learned gentle-
man could net for once lay aside the acrimony with
which he always approached the subject of the catholic
church, and cease to regard its members as persons ca-
pable of any wickedness. (Hear.)
Mr. J. O'CONNELL blamed the hon. and learned
member for having brought the bill forward at a time
when Ireland was cordially uniting with England to pre-
serve the honour of the country. But the bill was wan-
ton and mischievous, it had not been asked for by any
section of society, nor had any case been made out in its
favour ; and he therefore called upon the house not to
sanction its introduction.
Mr. MALINS denied that the bill involved any legal
difficulty whatever; it was based upon a well known
rule of equity, and sought to apply the same law to the
inmates of conventual institutions that applied to the
case of attorney and client, physician and patient, master
and servant, guardian and ward, &c. If a solicitor ob-
tained a gift from his client, he was bound to prove that
the client had acted thoroughly independent of himself—
that he was at arm's lengthwhen the deed of gift or will
was executed, or the Court of Equity would debar him
from taking any benefit under the deed. And why should
not the same principle be extended to the inmates of con-
vents, who, by the nature of their vows, were often de-
barred from exercising their own free will with regard to
the distribution of their property? It is a pity that a bill
of this nature should be received in a spirit of religious
intolerance. It asked for nothing for the Roman Catholic
which did not already apply to the Protestant. There was
nothing unreasonable in the proposition that a deed or a
will executed by a lady in a convent should prima facie
be taken to be void until it had been shown that it was
not done under the influence of those who benefited by
the act, but by the advice of totally independent parties
who took no interest whatever by the deed. Such a
law would not preclude conventual institutions from re-
ceiving gifts when they were properly and legally be-
stowed ; and he really did hope the bill would receive
the eerieee eeeemeeetion or the t*overnment.
Mr. LUCAS observed that those who proposed to in-
troduce this bill had proved by their own statements that
the existing law was correct in theory, and efficient in
practice, and he was at a loss to understand what neces-
sity there was for a measure of this sort. The relations
of nuns, as far as his experience went, were sufficiently
alive to the good things of this world to make them look
sharply after their own interest, and he had never heard
of an instance where they were unwilling to press their
rights to the fullest extent ; but suppose there was the
shadow of a pretence for this bill, was this the time to
bring it in when the whole question of conventual insti-
tutions had been referred to a select committee ? (Hear.)
Lord PALMERSTON thought there was some force
in the last observation of the hon. member. A com-
mittee was about to inquire into the whole matter, and
perhaps it would be better to postpone any specific mea-
sure until the report of the committee was received,
and their recommendations were before the house.
At the same time, as a question of principle, he
was not disposed to object to this bill, but if it
was brought in, he would suggest that its further
stages should be postponed until the committee had
mach their report. He thought a fair objection had been
taken to the wording of the preamble, which was not
necessary to the accomplishment of the object which the
bill had in view, but for his part he would endeavour to
view this matter as if he were a Roman Catholic. As a
Catholic, then, he should say there were two grounds
upon which he thought the principle of the bill was right,
but he should carry the principle a little further, be-
cause, as a Catholic layman, he should first be interested
in preventing any improper subtraction of property be-
longing to the inmates of conventual institutions ; and
next taking a real interest in the Catholic Church, which
set great value on those establishments, he should think
it most desirable that they should be freed from the sus-
picions to which they were subjected. If these institu-
tions were essential to the welfare of the Catholic Church,
it could not be supposed that they should depend for
their support upon the gifts of the inmates, and it would
be much more to their credit that they should be per-
fectly free from the imputatiem that an unjust influence
was exercised over the inmates to, force them to dispose
of their property in a particular manner. Now, if such
an influence did prevail, he contended the bill did not
go far enough; for the vow taken by the nun,
if the hon. and learned gentleman was correct in his
argumeut, would make a disposition of her property in
favour of the convent accord with her own free will ; and
if the vow acted in that way, how could the machinery
of this bill accomplish the object which it had in view ?
Pelt that was a matter of detail, perhaps, upon wheel he
should not pretend to give an opinion, but for the pur-
peee of a compromise he would suggest that the bill
should be introduced upon the understanding that it
would not be followed up until the committee about to
be Appointed should have examined the whole subject,
are! reported the result of their inquiry.
_err. WHITEiIDE had no objection to that course,
but he was afraid the powers delegated to the committee
di;i not embrace the subject of this bill.
The ATTORNEY-GENERAL had no doubt what-
evee that the question involved in this bill was in-
cluded in the terms of the resolution under which the
committee was to be appointed. He entertained no
doubt upon the subject himself, and he thought it
would be more satisfactory that the matters of fact
which had been referred to in support of the bill should
be inquired into by the committee, in order that the
hoese might know how the vows taken by the inmates
of these conventual establishments operated upon them
with regard to the exercise of their free will in the dis-
position of their property. It appeared to him, how-
ever, that the hon. and learned gentleman who proposed
to introduce the bill had proved too much, because if
the inmates of these establishment were, by their vows,
made the passive instruments of their superiors, they
ought to go very much further than the bill suggested ;
they ought, in fact, to deprive these inmates of the power
of making deed of gift or testamentary disposition
of their property, but he could not believe that
when a lady entered a convent and took the vows
of poverty, she ceased, to be a free agent, and
mentally became the mere slave of the superiors. If
such was the case, unquestionably it was the duty of the
state to interfere and put the disposition of her pro-
perty under the most effectual restrictions, but he did
no, think this bill would have that effect, or even attain
the object which its promoters desired. On the whole,
he confessed, he saw no necessity whatever for legisla-
tion, as the law was quite sufficient to meet the case of
the Roman Catholic as well as the Protestant, but at all
events, if there was any necessity to legislate in the mat-
ter, let them take care to legislate effectually.
7iir. NA PIER had always regarded conventual insti-
tutions and the VOWS taken in them as irreconcileable
witli the laws and constitution of the country, and his
only difficulty in supporting the bill rested on the fear
that he entertained that it would seem to give a legal
cas to that which was at present. illegal. However,
be the
eConstitutionlet ofth thesebill
be introduced establishments
and
was
referredabout
to
the select committee, who would no do übt be enabled to
ascertain what the nature and influence of the votes
taken by the nuns really were.
Mr. KINNAIRD did not object to refer the bill to
the committee, but then there was this difficulty in the
way of adopting 'that course. The hon. member for
Drogheda had given notice of his lutes ition to move that
the order for the appointment of the committee should

4Lith