whom he owes it (a). The whole question here turns upon the laws of the Roman Catholic Church in England. If it be indeed true that a mission priest has, by appointment to a mission, the character of parish priest, or quasi-parochus, as some have termed it,-in other words, if his right to occupy the mission property be not dependent on the mere pleasure of the bishop or party appointing him,—there is no doubt that he will be presumed to have a life interest in it, and if the value be sufficient for the purpose, it will entitle him to vote at elections as a freeholder. But, so long as the fact is disputed, there is unfortunately no possibility of laying down any general rule upon this question. The practice, which has been most justly disapproved of,—is to act upon the belief of each minister as to the nature of his qualification. If he affirm it to be an appointment for life, not removable at will, he will be admitted. If he affirm the contrary, or if he be unable to state what the appointment was, he will be rejected (b).

Parliamentary, Municipal, and Parochial Offices.

There is nothing to prevent Roman Catholic ecclesiastics from sitting in the House of Lords. But the 10 Geo. IV. c. 7, s. 9, has disqualified all such from sitting in the Lower House; thereby, in fact, placing them upon the same footing as clergymen belonging to the two Establishments. Dissenting ministers, as such, are not affected by this nor any other enactment; such ministers not having holy orders. The enactment is that no person in holy orders in the Church of Rome shall be capable of being elected; nor shall any person be capable of sitting, if, after having been elected, he shall take or receive holy orders in that church. In either case the

(a) Rex v. Jotham, 3 T. R. 575; Doe dem. Jones v. Jones, 10 B. & C. 718; Doe dem. Nichols v. Mackay,

ibid. 721.

(b) Chambers's Dict. of the Law of Elections, tit. Dissenting Minister.

seat is void; and the offence of sitting or voting as a member in such cases, is made punishable as under the 41 Geo. III. c. 63, which subjects persons ordained as priests or deacons, or being ministers of the Church of Scotland, to the penalty of 500l. with full costs for every day in which he shall so sit or vote, and to perpetual disability of holding any ecclesiastical benefice, living, or promotion, or any office of honor or profit under the crown. Proof of the celebration of any religious service by such person according to the Roman ritual, will be primâ facie evidence of his being in holy orders, within the 10 Geo. IV. c. 7, s. 9.

By the 5 & 6 Will. IV. c. 76, s. 28, Roman Catholic clergymen are also disqualified from being elected or being councillors or aldermen of boroughs within that

act.

The 31 Geo. III. c. 32, s. 8, has exempted all Roman Catholic priests qualified under that act, and being ministers, teachers, or preachers of congregations, from serving on juries, or from being chosen or appointed to the offices of churchwarden, overseer of the poor, or any other parochial or ward office, or any other local office. It is doubtful whether the office of guardian, which was created since this act, can be said to be within the intention of it. If the effect of the first section of the 2 & 3 Will. IV. c. 115, has been to extend to Roman Catholics the provisions of the 52 Geo. III. c. 155, in favour of dissenters, Roman Catholic ecclesiastics, solely employed in teaching and preaching in congregations or assemblies, and producing a certificate of their having taken and subscribed the proper oaths, are exempted not only from the civil services and offices specified in the 1 Will. & Mary, sess. 1. c. 18, but also from being ballotted to serve in the militia.

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CHAPTER VIII.

DISABILITIES OF ROMAN CATHOLICS IN RESPECT OF
THEIR CHARITABLE INSTITUTIONS.

So long as the Roman Catholic religion was proscribed by law, and its promulgation forbidden under any circumstances whatever within this realm, there could be no question as to the illegality of all foundations of a religious character, tending to the maintenance or practical illustration of the forbidden tenets. But when these prohibitions became relaxed by legislative interposition, and the profession of Roman Catholicism was no longer of itself a transgression of the laws of the realm, it seems strange that the courts should have imagined any restrictions upon their newly restored rights beyond such as were distinctly specified in the Relief Acts. Most Roman Catholics chose to accede to the terms offered them, and by taking the oaths required by the 10 Geo. IV. c. 7, showed that they were persons who, in the words of the preamble of an earlier Relief Act (c), were willing to disclaim" the "principles dangerous to society and civil liberty" which had been erroneously "attributed to them." Such an act of conformity to the principles of the constitution was evidently demanded of them out of a regard to the numerous opinions and decisions upon this subject with which our text writers and reporters abound, and which, if they correctly represented the tenets of the Roman Catholic faith, would have made it impossible for any parliament to mitigate the existing laws against it. But the oath afforded a test. Once taken by a Roman Catholic, his religion could no

66

(c) 31 Geo. III. c. 32.

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longer be viewed at law as "a conspiracy against the state, as well as religion" (d); nor could he himself be justly regarded as answering to that description which the learned writers of those days have given of papists. To use their words, papists were our common enemy, especially the jesuits and priests and other runagate English fugitives, who, against our policy and laws, are obliged by their oaths; and in their vows they blaspheme it. Their actions are not so much slanders or personal injuries as murthers; or rather treasons than murthers. As Sir Thomas Smith, the secretary, writes, God suffers these, like lice and vermin, in all ages, to disquiet some men that would be better employed. Their tongues, like the tails of Sampson's foxes, carry firebrands in them, setting on fire the course of nature.

St. James speaks, their tongues are set on fire by hell; and I have fancied, (in that, until the general doomsday, the damned spirits want their tongues,) that, in the meantime, they are rooted in the mouths of our English fugitive papists "(e). Their objects were pronounced to be to dissuade the people "from their allegiance to their prince, to reconcile them to the pope, to plant the Romish religion, to supplant both prince and province; by saying of mass, by administering the sacrament, by hearing confessions" (f). They were compared, by Lord Coke, to the leprous persons, who were liable to the writ de leproso amovendo, for fear of infecting the body; but so much the more dangerous than these, as they were said to infect the soul. And it was therefore declared to be better and far safer to have them to lie in prison than at large, and not to conform themselves (g).

While such was the manner in which the Roman Catholic faith was regarded by the oracles of English law, there

(d) Thornby v. Fleetwood, 10 Mod.

117.

(e) Sir Roger Owen's Treatise on the Antiquity, &c. of the Common Law of England, Harl. MSS. chap.

3, (pp. 81 to 86 of a copy penès me). (f) Campian's case, 1 Howell's St. Tr. 1053.

(g) Att. Gen. v. Griffith and others, 2 Bulstr. 155.

is no doubt that it was quite unnecessary to invalidate their religious foundations by positive enactments. And, in fact, there was no statute making them void generally (h). But the common law doctrine was sufficiently general to render all such uses illegal, calculated, as they were, to promote a religion so branded by the legislature. As head of the commonwealth, the king is bound, and empowered, without any specific enactment to that end, to see that nothing be done to the propagation of a false religion (i). And even at this day, such Roman Catholics as decline or neglect to take the oath, conditioned by the Relief Acts, still continue to be obnoxious, not only to the penal enactments, which have been already noticed in the course of this treatise, but also to the presumption of entertaining, as religionists, those disloyal and antisocial doctrines which were made the basis, as well of the enactments themselves, as of the wide construction given them by the judges. Any endeavours, therefore, on the part of such non-jurors to propagate, or even to support, their religious tenets, would likewise continue to be illegal; and all gifts or legacies towards the accomplishment of such purposes, whether made by them or in favour of them, would be therefore void.

This interpretation of the effect of the first Relief Act, (31 Geo. III. c. 32,) appeared so obvious in the eyes of the legislature of that day, that, not designing to confer the constructive relief in question, it was found necessary to guard expressly against it. It was, therefore, provided by the 17th section, that nothing in that act contained should make it lawful for Roman Catholics to found, endow, or establish any school, academy, or college, within the realm or its actual dominions; although, as we have seen, they were not to be prevented from simply teaching or keeping schools. And it was further provided that, whatever uses, trusts, and dispositions of

(h) Cary v. Abbot, 7 Ves. 495.

(i) Rex v. Lady Portington, 1 Salk. 162.