Roman Catholics, but Roman Catholics were no longer excluded. To whom, then, did the oath apply? To Protestants. Now, he would ask whether any man taking this oath were likely to become better, or more fit to perform their duties as members of Parliament? The oath pressed upon conscience. Indeed it was untrue, and could only be taken by a gloss. He (Mr. Roebuck) had taken the oath by a gloss, as he intended to take it. (A laugh.) Such phrases were like nettles in a man's path; he trampled them under foot, and they should not stand in his (Mr. Roebuck's) way. (Laughter.) The statement was untrue, and ought not to be retained in the oath. He called upon the House, then, to get rid of these words, and the difficulty would be removed. If it were declared that by the law of the land the Pope had no power of jurisdiction, spiritual or ecclesiastical, within this realm, that would be understood, - it would mean that the Pope had no power which he could enforce by law; but if it were said that the Pope possessed no such power rightfully,' an appeal to moral and religious belief was involved. In his (Mr. Roebuck's) moral belief the Pope had a right to jurisdiction in this country. The fact of a man being a Roman Catholic did not deprive him of the right of being a member of Parliament or a commissioner under a Charitable Bequests Act, and he (Mr. Roebuck) maintained that the Pope had, and rightfully, a spiritual jurisdiction in this realm. If, however, it were said that the Pope had a jurisdiction which he could enforce by law, he (Mr. Roebuck) would deny the assertion; and he thought that, instead of inserting the word 'rightfully' in the Bill, the words 'by law' should be substituted.

"Sir R. Bethell thought that great misconception existed with regard to the terms of the oath. The word 'spiritual' referred entirely to jurisdiction-to the authority to be exercised in courts of justice. Previously to the Reformation all temporal and civil authority was exercised in the name of the Sovereign, but spiritual and ecclesiastical authority was exercised in the name of the Pope. In the 1st of Elizabeth, however, a statute was passed, entitled an Act for restoring to the Crown the ancient jurisdiction over the State, ecclesiastical and spiritual, and abolishing all foreign power repugnant to the same;' and if the House would permit him to read the old oath, which was altered at the time of the Reformation, he thought they would see that there was no ground for difficulty or misapprehension. It was declared that from and after the passing of that statute all jurisdiction in the realm should be considered to be derived from the old fountain of jurisdiction-namely, the Sovereign, and all that was intended by the supremacy of the Crown was, that no power or jurisdiction should be exercised by any tribunal or court of justice which was not derived from the Sovereign, and ultimately controlled by the Sovereign. The oath was in these terms :—

666

“'I, A. B., do utterly testify and declare in my conscience, that the Queen's Highness is the only supreme governor of this realm, and of all other her Highness's dominions and countries, as well in all spiritual or ecclesiastical things or causes as temporal". There was the division of the two subjects,- -a distinction between temporal causes and spiritual and ecclesiastical causes, and in both the authority of the Crown was declared pre-eminent. The oath then proceeded :

"And that no foreign prince, person, prelate, state or potentate, hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm; and therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that henceforth I shall bear faith and true allegiance to the Queen's Highness, her heirs and lawful

successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges, and authorities, granted or belonging to the Queen's Highness, her heirs and successors, or united and annexed to the imperial Crown of this realm.'

All that was sworn to, therefore, by those who took the oath of supremacy, was simply that whatever jurisdiction or authority was exercised in the country was considered to be derived wholly and exclusively from the Crown, and the word 'spiritual' was not to be construed with reference to any power over men's consciences, but merely with reference to the jurisdiction of courts ecclesiastical and spiritual. He had been surprised to hear the observations of his hon. and learned friend the member for Sheffield (Mr. Roebuck), because whatever powers were possessed by the Commissioners to whom he alluded were conferred by the authority of an Act of Parliament, and therefore the case formed no exception to the general rule. He (Sir R. Bethell) conceived, therefore, that there could be no difficulty with regard to this oath, which affirmed that all jurisdiction and authority in spiritual or ecclesiastical as well as in temporal causes was derived from the Crown; and he thought it would be a mere superfluity to introduce either the word 'lawfully' or 'rightfully,' as the language of the oath was already sufficiently explicit. (Hear, hear.) "Mr. Hope, who addressed the House amid much confusion and frequent calls for a division, said, if anything ought to be plain and patent it should be a solemn declaration required from members of that House, but they found authorities learned in the law flatly contradicting one another as to the interpretation of ten lines which had been repeated thousands of times at the table. He thought nothing could more plainly indicate the immorality and undesirability of retaining such an oath. He thought the morality of oaths and the dignity of this House would be alike consulted by sweeping away the ambiguous terms to be found in the oath on the table. He was, at all events, in hopes that the hon. member for Sheffield (Mr. Roebuck) would have proposed the insertion of the word 'legally,' which seemed to him a more unobjectionable word than either 'rightfully' or 'lawfully.'

"Mr. Whiteside concurred with the hon. and learned gentleman (Sir R. Bethell) in thinking that the words of the oath were perfectly intelligible and should remain as they were. They furnished a sufficient illustration of the principle which they asserted, that no foreign power had jurisdiction, ecclesiastical or spiritual, within this realm. A Roman Catholic miller in the north of Ireland once brought an action against a priest for having slandered him in his church and damaged him in his business by forbidding others to deal with him. The priest defended himself on the ground that he had no malice against the miller, but had merely asserted the authority exercised by him in virtue of his ecclesiastical commission, and that he had done no more than he had a right to do. This, however, was held to be no defence, inasmuch as the Pope held no jurisdiction in this country by which he could give power to the priest; and the miller recovered damages. The Act as it stood was, therefore, a protection to those who might be injured by the assertion of an authority which really had no existence. No one was bound to deny that a man claimed unlawful authority. What was necessary to be denied was that a foreign potentate had any authority. He really had none; and they might all say, with a safe conscience, that he ought to have none. ('Hear,' and a laugh.) "After a few words from Mr. Wigram, the amendment was withdrawn."

In this debate it was maintained, and by the rejection of the proposed amendment it was virtually resolved, that the natural sense of the terms of

the oath is self-evident. Those words which in Elizabeth's reign received legislative explanation are affirmed above to be self-interpreting. The advocates of this view would not permit their explanation of the oath to be embodied in the statutes. Their opinions, therefore, though they were uttered in the House, were but private exposition; and thus we have proved our position, that the oath has been re-imposed without legislative construction.

CONTRADICTORY PRIVATE INTERPRETATIONS.

The jurant may exercise his taste; private ingenuity has catered to his choice. Our former researches discovered five modes of interpretation; these have accumulated-ONE DOZEN.

From this conflict of error we select one contradiction, by way of illustration. At p. 28 of the Earl of Clancarty's pamphlet, " Case," etc., appears the view of Mr. Napier :

"I cannot see any alteration of the laws on the subject of foreign jurisdiction, by which I understand authority capable of being enforced by law.

Mr. Napier's

explanation.

"I do not believe there is any power, according to our law and constitution, to enforce any rule or order of the Pope in this kingdom."

Now, it is most evident from Mr. Napier's "Opinion," published in this pamphlet, that he treats of our civil courts; so that, in his case, "authority capable of being enforced by law" must be interpreted as "authority capable of being enforced by the power of our civil or temporal courts", and the oath be limited to a denial of this.

Let the reader now recur to the extract from the debate on "The Oaths' Bill", given above, and he will see that :

Sir R. Bethell's.

:

"Sir R. Bethell thought that great misconception existed with regard to the terms the oath. The word 'spiritual' referred entirely to jurisdiction-to the authority to be exercised in courts of justice." *** "And the word 'spiritual' was not to be construed with reference to any power over men's consciences, but merely with reference to the jurisdiction of courts ecclesiastical and spiritual".

Could contradiction be more manifest? One eminent lawyer says, The oath only denies the possession of the authority of our temporal courts: No! replies another, it denies the possession of that of the spiritual.

This will illustrate that frequency and notoriety of contradiction which induced Mr. Hope to say, during the same debate:—

Mr. Hope's

verdict.

They found authorities learned in the law flatly contradicting one another as to the interpretation of ten lines which had been repeated thousands of times at the table".

ECCLESIASTICAL STATUTES AND HISTORY MUST DETERMINE THE
DISPUTE.

Happily, there is one point on which these differing authorities are agreed, viz., that we must not resort to mere private opinion, but must accept the oath in its ancient and original sense; and, in ascertaining this sense, are bound to recur to statutes and history. Sir R. Bethell we have already seen referring to Elizabeth's Act of Supremacy: Mr. Napier, in debate on this question, The Times, February 11, 1858 :— "Maintained that it was not competent for any private person to put his own interpretation on the oath. It must be taken secundum sensum imponentis, without any peculiar interpretation to suit the views of those who take it".

Mr. Napier's ap

peal to the sensum imponentis.

And Lord Lyndhurst, The Times, April 28, 1858, replied to the Earl of Wicklow, that:

Lord Lyndhurst's appeal to history.

"If he would condescend to look into the history of the oath, all the doubts which he has raised, and which operate on his own mind, and apparently, also, on the minds of other persons, would at once vanish." We have then a most unimpeachable nomination of a standard of reference; we accept that one which has been indicated by our opponents; we shall appeal to the "sensum imponentis".

The line of proof.

The re-enactment of the oath was designed to be but a perpetuation of the intent of the former imponents. Now, up to that hour, the oath was imposed by 1 W. and M., c. 8; we, therefore, shall trace out the sense in which this Act required it. We shall start from Henry VIII., and descend the stream of legislation and of history to 1688; and we shall not burden our pages with worthless ipse dixit, but quote, ad literam, ecclesiastical history and ecclesiastical statutes. We shall quote at length that we may not be charged with suppression or misapprehension of the spirit of the context; and italics will often mark those passages which bear upon our argument. When we have accomplished our task, it will appear on which side the "great misconception " exists; and, beyond appeal, it will be evinced whether the heads of our legal profession do, or do not, wholly misapprehend this momentous question.

THIS WAS NOT AN OATH OF MERE CIVIL ALLEGIANCE.

Our first appeals to statutes and history will clear the path to the positive portion of the argument, by establishing, in this and the next section, two important negations.

Some have explained our oath to be a mere affirmation of civil allegiance : and they seek countenance in the subjoined opinion of Lord Eldon :

"With respect to the oath of allegiance to be taken by the Earl Marshal, I must say as a lawyer that it contains in it everything included in the oath of supremacy, and that the oath of supremacy was, in fact, added as an explanation of the oath of allegiance, or, as Lord Hale has expressed it,' was passed to unravel the errors that had crept in.”” The question thus raised is this-Were the oaths of allegiance and supremacy regarded as strictly equivalent in 1688? The reply is-Most certainly not; the legislators of that day were not at the needless pains of imposing two oaths in one and the same sense, by the same Act.

We beg explicitly to deny, that at the Revolution the oath of supremacy was imposed through the inferior motive of maintaining mere civil obedience: the men of that age were agreed at least on one point,-viz., that it was their bounden duty, as a question of religion concerning the honour of God, to exclude the power in foro conscientia of the Pope and while civil allegiance would be a coincident result, the exclusion of overt obedience to the Pope's power in matters of conscience was our oath's sole point. To this the testimony of Judge Blackstone, Bk. i., 368, is explicit :

Blackstone's explanation.

Mr. Walpole's definition.

:

:

"The oath of supremacy is principally calculated as a renunciation of the Pope's pretended authority: and the oath of abjuration, introduced in the reign of King William, very amply supplies the loose and general texture of the oath of allegiance".

Mr. Walpole, during the debates on the "Oaths' Bill", has always spoken of this oath, as the oath of "undivided allegiance": we do not object to the description, because a question or two will prove that it supports our negation. Who are they who profess that divided allegiance which this definition implies? Are they Protestants or Jews, Infidels or Pagans? The doctrine is peculiar to the Papists. These hold that an undivided civil allegiance is due to the Crown; and an equally undivided spiritual allegiance to the Pope, and to him alone: Protestants correctly term this a "divided allegiance". How, then, can Protestant monarchs retain Papists in an undivided allegiance, except they compel them to abjure the Pope? Will any oath of mere civil allegiance effect such abjuration? And how did our sovereigns' oaths of non-supremacy uphold the undivided allegiance which they justly claimed ?

In what sense this oath is re-imposed the Act does not determine. It would have been vain to have imposed it as a test of civil subjection: and as such it has no legislative sanction.

NOR WAS IT AN OATH OF SUPREMACY.

This negation is not a bare question of nomenclature. The old form of the oath was popularly called "the Oath of Supremacy "; but never was misnomer more manifest. We were surprised that Sir F. Thesiger, The Times, June 16, 1857, should maintain that it amounts to "the recognition