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

M AN. 3l, 1851.

Stockton, Middlesbrough, Yarm, Watemorks.
Utversion and Lancaster Railway.
The Coal Duties (London and Westtninster, and ad-
jacent Counties) Bill was read a second time.
The following Bills were considered and agreed to:—
Clerkenwcll Improvement (Transfer of Powers to the
Corporation of London, &e.)
London (City) Sewers.

referring to Hansard, it appeared that as nea, ly as pus-
ethic the same number of pages were occupied by the
eupportera as by the opponents of the measure. It was
evident, then, the opponents of the Bill, on that occasion,
only did their duty in replying to its advocates.—
(Hear, hear, and laughter.) The motion for the first
reading was made on the 14th of March. The delay be-
tween the 7th of February and the 14th of March was
caused, not by the opponents of the Bill, but by the
feebleness and incapacity of the Government.—(Hear,
hear.) The question of the first reading was debated for
seven nights—a long period, no doubt, but he found that
there were twenty. four speakers for the Bill, and only
twenty-eight against it, while the former occupied rather
more time in addressing the House than the latter. The
subsequent delay cause by the postponement of the
Bill till after Easter was the act of the Noble Lord
himself—(Hear)—and even after Easter the measure was
again postponed for another week, in order to meet the
convenience of the Administration.—(Hear, hear.)
On the question that the Speaker should leave the
chair one evening was occupied with the motion of the
Hon. Member for Stafford, and he (Mr. Moore) subse-
quently felt it his duty to address the House on a point
of order which no Member of the House—from the
Speaker downwards—would say was not deserving of
serious consideration. The House having gone into
Committee, what occurred then ? Although the Bill
had been postponed for a month to allow the Govern-
ment to reconsider and amend it, yet, at the eleventh
hour, on going into Committee, the Government
adopted a new clause of the greatest importance, the
depth and obscurity of which they had never yet been
able to fathom. The opponents of the Bill very natu-
rally suggested that the clause should be printed in the
Bill before the Committee was called on to discuss it,
and, scarcely credible as it would appear, that reasonable
proposition was resisted by the Noble Lord. A consi-
derable debate ensued, and at last the Noble Lord as-
sented, most ungraciously, to what he had pertina-
ciously opposed. At length the House went into Com-
mittee on the reprinted Bill, which was delivered only
at the eleventh hour, wet from the press. The Right
Honourable Member for the University of Oxford, and
others, declared that sufficient time had not been al-
lowed to enable them to understand the provisions of
the Bill, and c ,nsequently the measure, after some de-
bate, was postponed for another week. When the
House went into Committee on the appointed day, the
Hon. and Learned Member for Athlone moved that
the preamble should be postponed ; but the motion
was rejected, although it was now universally admitted
that its adoption would have greatly facilitated the dis-
cussion of the measure.—(Haar, hear.) When the first
clause was proposed, it came out for the first time that
while the Hon. and Learned Member for Midhurat had
proposed it in a limited and restricted sense, the Go-
vernment had adopted it in a sweeping and mischievous
sense, and extended it to a part of the empire to which
the Hon. and Learned Member for Midhurst did not
mean it to apply. Under these circumstances, it was
not surprising that the opponents of the Bill should en-
deavour to effect alterations with a view of reconcil-
ing the contradictory opinions of the Solicitor-General
and the Hon. and Learned Member for Midhurst, and to
rescue the clause from the doubt and obscurity in which
it was designedly left by the Government. The Noble
Lord complained of his opponents for moving provisoes
identical, he said, in spirit, if not in words. All he
could say in reply was that the provisoes were as differ-
ent from each other as the present Bill was from the one
originally introduced. (Here the Hon. Member recapi-
tulated the provisoes which had been moved, with the
view of shorting their variance from each other.) The
Members who moved the provisoes had no other object
than to make the first clause do that which the Go-
vernment declared it was intended to do. Public
opinion, it was true, called for legislation on this sub-
ject; but for legislation clear and definite, not that
which was purposely obscure. Public opinion called for
a statute which should resist the recent act of the Pope,
without interfering with or insulting the religious feeling
of any of the Queen's subjects; but this Bill did in-
terfere with the Rumen Catholic religion, while it did
not resist the alleged aggression.—(Llear, hear.) On
these around* he appealed to the House, and to the public
opinion which the Noble Lord himself invoked, against
the proceedings of the Government.
Mr. KEOGH called on the Noble Lord at the head
of the Government to declare whether he would assent
to the proviso.
Lord J. RUSSELL intimated that he would oppose it.
Mr. WALPOLE suggested that it would be better to
move the proviso at the end of the second clause, by
which means it would apply to all prosecutions under
tho Bill.
Mr. KEOGH would adopt the suggestion, if the
Hon. and Learned Member would support the proviso.
Mr. WALPOLE had not made up his mind on the
point, but would consider it.
Mr. KEOGH thought it better to take the chance of
having the Hon. and Learned Member's support than
incur the risk of his opposition by moving the proviso
now, and therefore he withdrew it.
On the question that clause 1 should stand part of the
Bill,
Sir J. GRAHAM said, that having been indulged by
the House with a full opportunity of expressing his
opinion against the principle of the Bill on the occasion
of the second reading, he had during the progress of the
measure in Committee carefully abstained, up to the pre-
sent time, from taking part in any of the discussions
which had arisen. The Committee was now called upon
to agree to the first clause, which was not part of the
Bill when ho had the honour of addressing the House
before; and, fueling great doubt with respect to
the real import of the clause, ho hoped he might ha
pardoned for obtruding himself on the attention of
the Committee for a short time, promising, at the
same time, not to restate any of his opinions with respect
to the principle of the Bill—which remained unchanged
—bat to confine himself entirely to the question under
consideration. Having found himself in a small mino-
rity in opposing the principle of the Bill he might have
left the arrangement of the details to the great majority
who had supported it, and have waited the opportunity
of its coming out of the Committee to consider the shape
which, after a careful deliberation, its supporters had
thought fit to give it; but still he regarded this clause
as so important, more especially considering the ambi-
guity which hung around it, that he considered it expe-
dient to ask for some discussion upon it, and, if possible,
to obtain some explanation of what was its real import.
—(Hear.) He would first ask, what was the intention
of the clause, and then, if he could divine what its inten-
tion was, he would apply himself to find out what was
done by it. With respect to the intention of a clause
we naturally looked to the preamble. Now, this
was a clause of a peculiar character. It was a clause
which her Majesty's Government had adopted at the
suggestion of his Hon. and Learned Friend the Member
for Midhurst; and, seeking for advice as to the intention
of tho clause through the medium of the preamble ho
would try to find it first by looking at the preamble, as
adopted by the Government, and then at the preamble
as sought to be amended by his Hon. Friend (Mr. Wal-
pole). The preamble of the Government was peculiarly
worded. It said—
" Whereas divers of her Majesty's Roman Catholic
subjects have assumed to themselves the titles of arch-
bishop and bishops of a pretended province, and of
pretended sees or dioceses, within the United King-
dom, under colour of an alleged authority given to
them for that purpose by a certain brief, rescript, or
letters apostolical from the see of Rome, purporting
to have been given at Rome on the 29th of September,
1850."
He begged the House to observe the peculiarity of the
phrase " United Kingdom," because they saw imme-
diately from the words wnich followed that it ap-
plied to one rescript of a particular date, which
was strictly applicable to England only. It did
nut extend to the whole of the United Kingdom
and the words, "within the United Kingdom," could only
have beam adopted in the preamble upon the under-
standing teat England was a part of the United Kingdom
In no other sense could the words be used, for the re-
script referred to did not extend to Ireland, but was ex-
pressly limited to England.—(Hear, hear.) The in-
ference therefore was, that as the preamble referred only
to one rescript, and that rescript applied only to
England, it was the intention of the clause to be strictly
limited to England. He would now call the attention
of the House to the proposed alteration of the preamble
by his Hon. and Learned Friend, who was the real au-
thor of the clause. Did he seek (judging from his pre-
amble) to limit the operation of the clause to England
only, and to restrict it to one particular rescript? Nothing
of the kind. Look at the words of which he had given
notice. After the word " pounds" he proposed to omitd
all the following words down to the words " United
Kingdom," and to insert the words, " And whereas thet
said brief, rescript, or letters apostolical" (alluding
eod
the rescript of September 29, 1850); ho then p,raoapodsall
the following important and significant wohreds, Lea,
her
such or the like acts or matters touching, te
crown, her regality, and the realm —(11 ar)— thus in-
dicating as clearly as words could intentionconv_eyaiottathnatthe e.
different from that of the Government—not
claratory clause should be applhicaatbite to ono rescript
should be only, and to England only, but t
whether future or ante-
cedent.—(Hear, appli-
cable to all resoripts or bulls,
as indicated by their
cedent.—(llear, hear.) But again he wouldask, what
was the intention of Government,
conduct with regard to the first Bill
_which they laid
upon the table of the House? That Bill contained a se-
cond and third clause, following that which was now the
second clause of the present Bill, which, upon delibera-
tion, the Government withdrew, for reasons which were
stated by the Secretary of State for the Rome Depart-
ment. Upon full consideration, and after hearing argu-
ments in that House, they were satisfied that the second
and third clauses interfered with certain spiritual
functions of the Catholic episcopate, which the
did
not think it expedient to touch either in England or
Ireland, such as ordination, collation to benefices,
and various ecclesiaqical functions, which they were
most anxious not to disturb. lie wished to know
whether it was the intention of the Government,
who had since adopted the fi
to the intention which they to adhere
to the House when th • deliberately becrlaautesle; announced
ey withdrew the second and third
clauses of the former Bill?—(flcar, hear.) It was most
desirable that they should come to a distinct under-
standing upon that point. And here the difficulty of
arriving at a distinct apprehension of what was intended
was materially increased by the changes which had taken
place in the law officers of the Crown during the pro-
gress of this measure. He was sorry the Right Hon.
Gentleman the Master of the Rolls was not present; but
he was sure the House would remember that he (then
holding the office of Attorney-General) stated that he
had given an opinion, to which opinion, upon reflection,d
he distinctly adhered, that by the law, as it nowsto
there was no impediment whatever to the Pole's divi-
ding any portion of the country into dioceses,
sees, or
districts, or whatever names they might please to give
them, for ecclesiastical and episcopal purposes.—(Hear,hear.) The Right Hon. and Learned
no longer a law adviser of the Crown. He now filled
succeeded by a
a high judicial position, and lie had been

genthenee tf great ability, whom he now saw present, to
whose opinions he (Sir James Graham) attached much
impertanee, on account of his ability; and he also greatly
admired the frankness and menlinees with which he at
all times stated his opinions—he alluded tothe Solidi-
tor-General.—(Hear, hear.) Now he understood that
Hon. and Learned Gentlemen to say, that by the law, lig,
it new stood, all such rescripts us that of the 20th of
September were, in his opinion, illegal; that this clause
way a declaratory clause, and did not alter the law, but
merely affirmed the law as it now is; and he went on to
say that the effect of this declaration would be to bind
the courts of law in every part of the United Kingdom
to declare the law to be tho came in pari materiel. Well,
if that were so, was it not clear that the operation of the
clause extended far beyond the limits of England, for
beroud the narrow ground of the rescript of the 28th 91
Septembhr; that it laid down a general principle appli-
cable to all parts of the United Kingdom, and which
would have to be observed by every court of judicature
throughout the realm? Now, if that was so, It
became the House to consider what was likely to be
the operation of this clause throughout the United
Kingdom. And for his own part he must say that with
respect to its operation in Ireland he apprehended the
most injurious and fatal results.—(Hear, hear.) Se
begged the House to bear in mind that the Roman Ca-
tholic religion was an episcopal religion, that the Roman
Catholic bishops throughout the United Kingdom were
appointed by rescript from the Pope; that if they de-
clared his rescripts to be illegal, everything that flowed
from those rescripts would be illegal likewise; that If
they vitiated the appointment of the bishops, the ordina-
tious of the priesthood by those bishops, the solernials3"
lion of marriage by the priests, and the like would be-
come vitiated also. All that was stated by the Govern-
ment against the second and third clauses of the pre-
vious Bill applied a fortiori to the declaratory clause in
the present Bill. But did the case stop here? He will
almost afraid to embark upon questions of nice legal inr
port, pregnant with immense consequences, but he bad
always understood that it was a principle of law, that
if they declared any particular act to be Wee!,
even although they assigned no penalty to it,
that act, and the various things that were done
under its authority, became a misdemeanour, and 113-
dictable. The Government had shown a praiseworthy
desire to restrict the power of prosecuting under this
Bill to the responsible officers of the Crown—that wit*
as regarded its civil consequences. But, if the principle
of law to which he had jest adverted was correct, the
Government would lose control over the prosecutions---
it would be open to anybody to raise the question before
a grand jury.—(Haar, hear.) Take the case of the
"Italian monk," as the Attorney- General had called hites
The rescript under which he was appointed "Primate of
all Ireland" being illegal, every act done by him in that
capacity would bo illegal, and it would be open to anY
Protestant in Ulster, who might be actuated by angry
feelings, to prefer a hill of indictment against Dr. Cullen
for a misdemeanour.—(Hear, hear.) Now, this was a
state of things pregnant with serious dangers to Ireland,
and would render the government of that country ut-
terly impossible.—(Hear, hear.) If they were to legis'
late in this manner, let them legislate distinctly, plainly
and intelligibly—(Hear)—but don't let them do it by
doubtful inuendo, and leave their intentions to be
sought for throughout a labyrinth of a long preamble
—(Hear, hear.) But let them apply the dictum o f
the Solicitor-General to another case. The warden-
ship of Galway was abolished by a rescript of the Pope
in 1831. For twenty years the acts done by the Bishop
of Galway had remained unchallenged by various Go-
vernments. If this declaratory clause became law, and
if, according to the doctrine of the Solicitor. General,
every rescript of the Pope, in pari materiel, would be-
come null and void and illegal, the Bishop of Galway',
who had been acting all this time under the rescript of
the Pope in his spirituel capacity, would be open to an
indictment for a misdemeanour.—(Hear, hear.) And
what would become of his acts during the last twenty
years? If these acts were in their origin null and void.
of course their consequences would be null and void
also.—(Hear, hear.) Scenes of angry litigation anti
conflict and confusion of social rights would thus ensue,
which it was melancholy to contemplate.—(Hear, hear.)
But was the recognition of the Papal authority in Bpi'
ritual matters entirely new in this country ? On the
contrary, it had been frequently recognized, and in
most marked cases.—(Hear, hear.) The Noble
Lord had dwelt with commendation on a former
evening on the sixth clause of the Bequests
Act, and in passing he would say a word about that
measure. Tkere could be no question that that Act
was studiously framed to avoid any direct contravention
of the Act of 1829, and with respect to the recognition
of the titles already possessed by the prelates of the Es-
tablished Church of Ireland. At the same time, there
was in that Act a direct recognition of the titles of arch-
bishops and bishops of the Roman Catholic Church,
and, more than that, there was in the sixth clause a
direct recognition of their spiritual authority, and
almost their jurisdiction. For in cases of doubt with
respect to whose benefit any particular trust deed had
been executed, be it bishop or be it pastor, the Roman
Catholic members of the board being dignitaries of the
Church were empowered to declare who were the persons
so designed, no appeal being allowed from their decision.
Here there was a distinct recognition of their authority
in spiritualities, and indirectly a recognition of the
canon law of the Church.—(Hear.) Was there no other
case which presented itself—a case which actually touched
the succession of the Throne itselt? He meant the case
of Augustus Frederick D'Este, the claimant of the
Dukedom of Sussex.—(Hear.) A question arose in that
case at the bar of the House of Lords in a Committee
of Privileges as to the legal effect of marriages in fo-
reign countries, and, by an odd coincidence, Sir
Thomas Wilde (now Lord Truro) was the person who
conducted the case for the claimant. And whom did he
call as a witness on this point? The first witness he
called was Dr. Wiseman. He would read to the House
a few of the questions which Sir Thomas Wilde put to
Dr. Wiseman at the bar of the House of Lords.
" Are you a Catholic bishop?—I am.
"In the event of any questions arising in England
relating to the validity of Catholic marriages, have you
any jurisdiction or judicial authority upon those ques-
tions from the See of Rome?—The vicars-apostolic in
England have the same jurisdiction in respect of matri-
monial cases which any bishop would have upon the con-
tinent.

" Are you appointed an ecclesiastical judge by the
Court of Rome in this country P—ln matters relating to
ecclesiastical jurisdiction.
" Is there any ecclesiastical authority in this country
to decide upon the subject of marriages except the Ca-
tholic bishops P—No.
" The persons holding that office are the authorities
which have jurisdiction throughout Catholic countries
to decide upon questions of marriage?—Generally; that
is, matrimonial cases, as far as the canon law and eccle-
siastical law affects them, belong to the jurisdiction of
the bishops.
" And you are one of those bishops?—I am in that
capacity.
" What are the authorities in this country from the
See of Rome that have power to decide upon questions
arising between Catholics respecting marriage?—The
vicars-apostolic of England.
Does their authority extend to all questions relating
to marriage, as well its validity as its regularity, or is it
limited?—lt is limited with respect to the power of dis-
pensing in certain cases in which they are obliged to have
recourse to the supreme authority at Rome. With the
exception of those cases, the powers are the same as
would be exercised iu Rome itself."
Then he was cross-examined by the Attorney-General,
and these questions were pus to him:—
" You say that you have the power ofdeciding whether
a marriage is valid or invalid. Suppose you decide it to
be invalid, what is the consequence of that decision?--
That the parties would be obliged to separate, unless I
granted a dispensation, or, if it was not within my faculty,
procured it for them; but, until such dispensation was
granted, they would have to separate.
" You say they would be obliged to separate; but sup -
pose they did not separate, what then?—Then, of course,
they would not be admitted to participation in the rites
of the Church—to the sacraments of the Church.
" Therefore your jurisdiction is entirely confined to
spiritual censures, and to consequences of an ecclesias-
tical kind?—Certainly; entirely.
" You would have no power to affect the property or
the civil rights of the parties?—Not in this country,
except in foro conscientice."
He begged the House to observe how closely the con-
fines of the spiritual and civile powers touched upon
each othor. It was quite
otru that in foro conscien tt
the Church had onl the se. er of depriving the people
of the rites of theyChuPch' and yet Hon. Membersa_
would observe that it had been distinctly recognised. L
the bar of the House of Lords that the authority which
they exercised, in their
ut jurisdictionieh aff tc t
ed overth
ethe
consciencessacram no
of the Renaish Church,
f
8,000,000 of her Majesty'. subjects, was derived directly
from P
—"lel and it was this authority and jurisdiction,
so derived, that the House was now asked to declare
illegal, and null and void.—(Hear, hear.) He would re-
fer again for one moment to the Bequests Act. The
Bequests Act was passed at a time when there was upon
the statute• book an Act declaring all rescripts and bulls
from Rome to be illegal. One of the last acts of Sir
R. Peel's Government, however, was the introduction
by Lord Lyndhurst of a Bill which went the full length
of repealing the 13th of Elizabeth, which declared all
rescripts and bulls from home to be illegal. He would
read to the House a short passage from the speech of
Lord Lyndhurst in introducing that Bill. Lord Lynd-
hurst said,—
" They tolerated the Catholic prelates, and they knew
that those prelates could not carry on their church esta-
blishments or conduct its discipline without holding com-
munication with the Pope of Rome. No Roman Catholic
bishop could be created without the authority of a bull
from the Pope of Roma; and many of the observances of
their Church required the same sanction. The moment,
therefore, that they sanctioned the observance of the
Roman Catholic religion in this country they by impli-
cation allowed the communication (with the Pope) pro-
hibited by this statute, and for which it imposed the
penalties of high treason. If the law allowed the doc-
trines and discipline of the Roman Catholic Church, it
should be permitted to bo carried on perfectly and pro-
, perly; and that could not be without such communica-
tion. On these grounds he proposed to repeal the Act."
He begged the House to observe that Lord Lyndhurst
spoke the sense of the whole Peel Cabinet. It was quite
true that the Bill assumed another form in its progress
through that House, inasmuch as it repealed only the
penalties, and not the Act itself; but the intention of Sir
R. Peel's Government was that the Act itself should
bo repealed.—(Hear, hear,) Lord Lyndhurst went on
further to sae
"But he Proposed the repeal of this statute for other
and still stronger reasons. No such statute existed in
Scotland, and, ghat was still more remarkable, such s
statute had never been pissed by the Irish Parliament,
though in that country three-fourths of the inhabitants
professed the Roman Catholic religion. He knew that
many of his Noble Friends had been, on the firs; impres-