PART I. THE TRUE SENSE OF THE NON-SUPREMACY CLAUSE OF THE NEW OATH. THIS CLAUSE WAS DEVISED AGAINST PAPISTS ONLY. PROTESTANTS originally accepted it to evidence that they were not Papists and, had not Papists existed, such an oath would not have been devised. Ince says, in his "History of England", "The oath of supremacy was originally adopted to guard against Papists" : And Mr. Gladstone, in debate on the "Oaths' Bill," The Times, March 23, 1858, contended that "The object of this part of the Oath of Supremacy, as originally introduced in Elizabeth's time, and afterwards at the time of the Revolution, was for the purpose of excluding the Roman Catholics, and for that purpose alone". The Papists have been exempted from this clause for thirty years; so that, while those against whom exclusively it was devised do not swear it, those for whom it would never have been imagined are anew required to accept it! IT HAS NO LEGISLATIVE CONSTRUCTION. In the reign of Elizabeth the objections to the Royal Supremacy necessitated an authoritative exposition of the terms of her oath: this was first given in the "Injunctions" of 1559, and afterwards legislatively accepted by 5 Eliz., c. 1, s. 14. Our oath of non-supremacy has never had any other legal interpretation: Elizabeth's has been repealed, and none other enacted in its place. Appeal has been confidently made to "Caudrey's Case," as affording the clearest interpretation: Appeal to "What, then, is the unavoidable conclusion as to the de-jure interpretation? It is that sense intended by those who devised the oath. It is the primary force and meaning of the language of the oath. It is an authorised interpretation of that language; and he who swears the oath in this authorised sense, swears it in a natural sense; in a sense according to that Caudrey's Case. law which has been formerly enacted for governing the interpretation of it, and of the Article, and as determined in Caudrey's Case, 5 Coke Rep. de Jure Reg. Eccles". But, having examined the said case, we are able to say that it had no reference to the sense of the oath, that it does not so much as once allude to the subject. Further, accepting the statement of Mr. Napier, "Case," etc., by the Earl of Clancarty, 1851, p. 11,— "That it was a declaration of the common law, that this kingdom recognises no superior under God but the king. Caudrey's Case is a clear authority on this point, and was adopted by all the great lawyers in the House of Lords in 1846 ”,— accepting this common-law doctrine, we reply that, so far as Hansard's Debates are evidence, they did not apply Caudrey's Case in explanation of our oath. It may be beyond question, that "the oath and the common law speak the same thing"; but, in Coke's day, the common law was held to exclude most absolutely the Pope's power in foro conscientiæ. No legal ingenuity will be able to extract from this case any doctrine which may reconcile the present status of the Papists within the realm with our oath of non-supremacy. Lastly, if any such attempt were made by the Law Lords in 1846, and if it were reported by the press, yet it was but private interpretation, which most certainly did not receive legislative sanction. The Rev. S. G. Potter, of Stratford-on-Slaney, has raised this identical point. In a letter, published in The Sentinel, under date May 20th, 1856, he has appealed to the Act 9th and 10th Vict. passed 18th August, 1846, as affixing to our oath a legal He writes: Appeal to 9th & 10th Vict. interpretation. "The fact is, that the oath in its integrity is still required to be sworn by all Protestants by the 9th and 10th Vict., c. 59—the Bill called the 'Religious Opinions Bill'—where it is distinctly declared that any person in holy orders maintaining your position shall be deprived of his benefice!!! This makes it pretty clear that recent Parliaments determined that all Protestants should take the oath in the ancient sense, and for the same end; the only change being that Papists were excused therefrom, conceiving, as I suppose, that it was impossible to legislate against conscience, determining rather to watch the acts than to endeavour to bind the consciences of conscience-seared rebels and traitors. The enactment is as follows: "Provided always, and be it declared, that nothing in this enactment contained shall authorize or render it lawful for any person or persons to affirm, hold, stand with, maintain, or defend any such foreign power, pre-eminence, jurisdiction, or authority, nor shall same extend further than to the repeal of the particular penalties and punishments therein referred to, but in all other respects the law shall continue as if this enactment had not been made. *** Provided further, that if any person in holy orders according to the rites and ceremonies of the United Church of England and Ireland shall affirm, hold, stand with, set forth, maintain, or defend such foreign power, pre-eminence, jurisdiction, or authority, such person shall be incapable of holding any ecclesiastical promotion, and, if in possession of any such promotion, may be deprived thereof by due course of law, in the same manner as for any other cause of deprivation '". We shall not demand too much a priori if we beg our readers to admit that such an exposition of the oath could hardly have been unknown in the House of Lords after it had been passed. Mr. Potter will defer to the evidence of the Earl of Clancarty; he quotes his lordship's pamphlet, "The Oath of Supremacy," with high approbation. What then, when this same pamphlet proves that in 1851 the House of Lords had not heard of the supposed explanation? What, when we quote from this very publication an explicit assertion that the said Act 9th and 10th Victoriæ repealed our oath's only legislative interpretation? The Earl of Clancarty writes, at p. 7: House of Lords could not explain the oath in 1846. "It is all-important, therefore, to understand in what sense it is administered. I accordingly, at the commencement of the late session of Parliament, after giving due notice to the Lord Chancellor, applied at the table of the House of Lords to be informed in what sense the oath was imposed. To the Lord Chancellor and other noble and learned Lords who were present on the occasion, I feel obliged for the kind manner in which they received my application, endeavouring to remove my difficulties about taking the oath, by informing me of the sense in which they had themselves taken it; but they concurred in opinion that the House could not give any exposition of the meaning of it, that it could only be done authoritatively by a Bill in Parliament". The noble Earl, it appears, received in answer to his application, a private interpretation devoid of authority. But why did not the Lord Chancellor refer to the Act of 1846, the 9th and 10th Vict., as having authoritatively decided the question? He, perhaps, remembered that this Act had repealed the only legislative exposition. The following extract from page 10 of the preceding pamphlet describes this repeal: 9th & 10th Vict. repealed the only enacted explanation of the Oath. "Unfortunately, in the inconsiderate haste with which the Statute Book was lately cleared of the penal Acts against the adherents of the Pope, the only legislative exposition of the intent and obligations of the Oath of Supremacy was swept away, along with the Act that contained it, by an Act passed in 1846, intituled 'An Act to relieve her Majesty's Subjects from certain Penalties and Disabilities in regard to Religious Opinions.' But for this circumstance, Parliament would not be, as now, left without any authoritative exposition of an oath so important to be rightly understood, but from its language so ambiguous; and the House, when lately appealed to for an explanation of the sense in which it was to be taken, could have pointed to the decision of Parliament itself upon the subject”. This testimony establishes a remarkable case. Mr. Potter is well known as a clergyman of ability, attainments, and position, but shall we accept his authority on this question? He appeals to a certain Act, as "making it pretty clear that recent Parliaments determined that all Protestants should take the oath in the ancient sense ", he having, but a moment before, quoted from a pamphlet containing the highest evidence that the said Act had swept "the ancient sense of the oath from the pages of the Statute Book! The Act in question, " Anno Nono & Decimo Victoria Reginæ, c. lix.", lies before us; we therefore can testify to its provisions. It is destitute of any kind of allusion to our oath, but it thus repeals the 5 Eliz., c. i. :— "Also an Act passed in the fifth year of the same Queen's reign, intituled 'An Act for the Assurance of the Queen's Royal Power over all Estates and Subjects within her Dominions "". Three lines of pica, with pleasing brevity, dispose of an Act of twenty-three sections; an Act that occupied five and a-half folio pages of black letter; an Act, one of the chiefest pillars of Church and State. True it is, that its section which repeals the penalties of 1 Eliz., c. i.— the Act of Supremacy-most loyally provides, that : "In all other respects the law shall continue as if this enactment had not been made". But what the worth of this proviso? This clause has no reference to the sense of our oath. The preceding appeals signal failures. In Caudrey's Case, therefore, the advocates of our oath have no resource; and the appeal to the 9th and 10th Vict. was a yet more flagrant mistake. We shall close this section by proving that the oath has been re-imposed with studied rejection of legislative definition of its terms; so that, as far as positive law is concerned, jurants are at liberty to swear to it in any shade of opinion. This will be manifest from the report of the debate on the subject, The Times, March 23, 1858:: The Debate of "Mr. Stewart proposed to introduce into the latter part of the oath the word 'rightfully,' so that it would read thus:- 'I do declare that no foreign prince, etc., rightfully hath or ought to have jurisdiction, etc within this realm.' "Lord J. Russell observed, that 'rightfully' was a word difficult to define. The word 'lawfully' had been suggested by another hon. member, and he did not think that the word 'rightfully' should be introduced. "Mr. Gladstone said, that it was admitted on all hands that it was desirable that something should be done in reference to the terms of the latter part of the oath, and the question was which of these two words suggested was the best to test the opinion of the House. His noble friend appeared to prefer the word 'lawfully,' but he did not think his noble friend's construction of the oath would hold at all. He might be wrong, but this was a question partly of history and partly of private impressions of individuals. He would, however, point out that the object of this part of the oath of supremacy, as originally introduced in Elizabeth's time, and afterwards at the time of the Revolution, was for the purpose of excluding the Roman Catholics, and for that purpose alone. But there might be many Roman Catholics conscientiously of opinion that the Pope ought not to have any legal or coercive jurisdiction or power in this realm. The whole of the Roman Catholics of the United States objected as a body, the House had been constantly told, to the possession of legal power or jurisdiction by the Pope, and the repeatedly expressed opinion of the late Mr. O'Connell was, that the union of Church and State was a great evil, and that no spiritual power ought to be backed by temporal authority. Yet, if his noble friend's construction of the oath were correct, there would have been nothing to prevent Mr. O'Connell from taking that part of the oath. He understood the oath to mean that no foreign prince had 'rightfully or properly '-not 'lawfully'-any jurisdiction or power in this realm. It was clear, however, that if there were different constructions of the oath, the matter required the attention of the House, and there ought to be some legislative construction put on the oath. The case, as it affected the Moravians, a small body, but respected by all classes of the Christian community, had recently been brought under his notice. It was their misfortune to be governed by a foreign jurisdiction. A sort of Consistory met at Herrnhut, in Germany, and exercised supreme and ultimate authority over all the proceedings of the Moravian body; and the eminent civilian, Dr. Twiss, stated his opinion, on a case being submitted to him, that no Moravian could properly take the oath of supremacy. Therefore it stood operating as a bar against the possession by the Moravians of any office for which the taking of the oath was a condition. The introduction into the oath of the word 'rightfully' had been proposed, and he greatly preferred that word, with the meaning he believed to be attached to it by the proposer of the word 'lawfully,' as signifying 'by law.' It was, however, hardly consistent with the respect due to the very nature of an oath, and to the fair claims of individuals, to allow this matter to rest without some authoritative solution. Let it be known what Parliament meant by the oath it required to be taken. (Hear.) The construction of such oaths should not be a matter of private opinion, but ought to rest distinctly and intelligibly upon the authority of the Legislature, and he hoped the House would accept the amendment of the hon. gentleman. "Mr. Roebuck agreed with the right hon. member for Oxford University that this was not a question to be settled by private opinion, but one upon which there ought to be some legal and authoritative decision. How was it proposed, however, to solve the difficulty? Why, by using a word of the widest and most ambiguous interpretation— 'rightfully.' What was the meaning of that word? If the words 'by the law of the land' were adopted, everybody could understand them. He would assert that, by the law of the land at the present moment, the Pope of Rome had spiritual jurisdiction in this country. By the second clause of an Act of the 7th and 8th of Victoria, passed in 1844, intituled An Act for the more effectual Application of Charitable Donations and Bequests in Ireland,' certain commissioners were appointed for the administration of charitable trusts: and who were they? On referring to their first Report he found that at a meeting of the Commissioners of Charitable Donations and Trusts, held on the 9th of January, 1845, there were present his Grace the Lord Archbishop of Dublin, his Grace the Lord Archbishop W. Croly, and his Grace the Lord Archbishop Daniel Murray. Now, how did the last two become Lord Archbishops? By the authority of the Pope of Rome. (Hear, hear.) Who would tell him, then, that the Pope of Rome had not spiritual jurisdiction in this country? How could spiritual jurisdiction be more directly allowed than by the appointment of a Lord Archbishop under the authority of an Act of Parliament? He thought the best way of dealing with the question would be to leave out these words altogether. The right hon. gentleman said that the point was one of great importance. The words, it is said, were originally employed to exclude |