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A MANUAL

OF THE

LAW SPECIALLY AFFECTING CATHOLICS,

A MANUAL

OF THE

LAW SPECIALLY AFFECTING
CATHOLICS.

WILLIAM SAMUEL LILLY, LL.M.,

of th<' fniiiT l\'i)i}>lij, Ittiri'ixtt'i'-nl-Lair, ft'cri'tarii in the Catholic Union of Great Britain;

AND

JOHN E. P. WALLIS, M.A.,

Of the Middle Temple, Barrister-at-Lav.

LONDON :
WILLIAM CLOWES AND SONS, LIMITED,

27, FLEET STREET.
1893,

LONDON:
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,

STAMFORD STREET AND CHARING CROSS.

PREFACE.

THE object of this work is to provide for the use of Catholics a
Manual of the law specially affecting their religion and their
religious interests. The chapter on Existing Disabilities is a
short one, but will, it is hoped, throw some light on the alleged
disqualification of Catholics to fill the offices of Lord Chancellor
of England and Lord Lieutenant of Ireland. The legal aspects
of this question have not hitherto been publicly discussed
except in the carefully considered answer given by Lord (then
Sir John) Coleridge to a question put by the late Sir Colman
O'Loghlen in the House of Commons in 1872. That answer-
has lain forgotten in the pages of Hansard, and was not
referred to in the debate on Mr. Gladstone's Bill for the re-
moval of the supposed disability in 1891. It is here reprinted,
and forms the basis of the argument tending to show that
no such disability exists. Of the remainder of the volume
much has been derived directly from the pages of the statute
book. With regard to such subjects as Education and Trusts and
Bequests, the Authors' task has been mainly one of selection,
and they desire to express their obligations to the writers of the
standard treatises on these subjects. They desire also to acknow-
ledge, with thanks, the permission of the Council of the Catholic
Union of Great Britain, to use for the purposes of this work
various documents preserved in the offices of the Union. They
are indebted to his Honour Judge Bagshawe for his kindness
in perusing their proof-sheets, and in favouring them with
important suggestions. And they have received valuable assist-
ance from Mr. Paul Strickland, of Lincoln's Inn, in preparing
the chapter on Trusts and Bequests, and from Mr. Nevill Geary,
of the Inner Temple, on the subject of the Marriage-Laws.
December 1st, 1892.

The Penal Laws .

Existing Disabilities

Worship .

Parents and Guardians .

Paupers and Criminals.

Schools

Trusts and Bequests

CONTENTS

CHAPTER I.

CHAPTER II.

CHAPTER III.

CHAPTER IV.

CHAPTER V.

CHAPTER VI.

CHAPTER VII.

PAGE
1

106

135

APPENDICES.

The Roman Catholic Relief Act, 1829 . . . . .169

An Act for enabling Her Majesty to establish and maintain Diplomatic
Relations with the Sovereign of the Roman States (11 & 12 Viet.
c. 108) . 180

Vili CONTENTS.

PAGE

Opinion of Sir John Coleridge (now Lord Coleridge) as to the alleged
disqualification of Catholics for the offices of Lord Chancellor of
England and Lord Lieutenant of Ireland . . . . .181

The Places of Worship Registration Act, 1855 184

Letter from the Catholic Hierarchy to the Royal Commission on the

Laws of Marriage, 1867-68 191

Extract from the Report of the Royal Commission on the Laws of

Marriage, 1867-68 . 196

The Burial Laws Amendment Act, 1880. . .* . .198

The Places of Worship Sites Act, 1873, and the Places of Worship

Sites Amendment Act, 1882 204

The Guardianship of Infants Act, 1886 210

J.
The Infants Custody Act, 1873 214

The Prevention of Cruelty to and Protection of Children Act, 1889 . 215

L.
The Poor Law Act, 1889 224

The Custody of Children Act, 1891 . 226

CONTENTS. IX

PAGE

Report of Select Committee of the House of Commons appointed to
Inquire into the Operation of the Prisons Act and Prisons Ministers
Act, so far as respects the Religious Instruction provided for
Prisoners other than those belonging to the Established Church . 228

0.
Kemerton School Trust Deed .... ... 230

The Elementary Education Act, 1871 249

The Roman Catholic Charities Act, 1832 253

The Roman Catholic Charities Act, 1860 255

S.
The Mortmain and Charitable Uses Act, 1891 . . . . 258

TABLE OF STATUTES.*

PAGE

7 Edw. 1, Statut' de Viris Religiosis (Mortmain) . . . .150 (n.)

13 Edw. 1, c. 32 (Mortmain) . 150 (».)

18 Edw. 3, st. 3, c. 3 (Mortmain) 150 (n.)

15 Rich. 2, c. 5 (Mortmain) 150 (TO.)

21 Hen. 8, c. 13 (Clergy) 11

23 Hen. 8, c. 9 (Bishop : Ecclesiastical Courts) .... 11

23 Hen. 8, c. 10 (Mortmain : Superstitious Uses) . . 143, 150 (n.)

23 Hen. 8. c. 26 (Annates) ... ... 11

24 Hen. 8, c. 12 (Church of England: Crown: See of Home) . 2,12

25 Hen. 8, c. 19 (Canons: Crown: Home, See of) . . 2, 12

25 Hen. 8, c. 20 (Bishop: First Fruits: Home, See of) . . 13

26 Hen. 8, c. 1 (Supremacy of the Crown) . . 1, 3, 10, 13

31 Hen. 8, c. 14 (Religion) 14 (n.)

32 Hen. 8, c. 26 (Religion) 15

34 & 35 Hen. 8, c. 1 (Religion) . . . . . 15

1 Edw. 6, c. 14 (Colleges: First Fruits) 137,140

3 & 4 Edw. 6, c. 10 (Image : Missals) 47 (n.)

5 & 6 Edw. 6, c. 1 (Act of Uniformity) 18

1 Philip and Mary, c. 8 (Home, See of ) 5, 15

1 Eliz. c. 1 (Act of Supremacy) 16

1 Eliz. c. 2 (Act of Uniformity) 17, 21

1 Eliz. c. 24 (Religious Houses) 141 (n.)

5 Eliz. c. 1 (Supremacy of the Crown) 19

8 Eliz. c. 1 (Bishops) 17

13 Eliz. c. 2 (Rome, See of ) 19

23 Eliz. c. 1 (Religion) . 19, 21, 25

27 Eliz. c. 2 (Jesuits, &c.) 20, 26

29 Eliz. c. 6 (Religion) 21

35 Eliz. c. 2 (Popish Recusants) 21, 23

43 Eliz. c. 4 (Charities Act) 136

1 Jac. 1, c. 4 (Jesuits, &c.) ....... 27

3 Jac. 1, c. 4 (Popish Recusants) 20, 29

* The descriptions of the statutes in this table are taken from the Short
Titles Act, 1892, where it applies ; elsewhere, in most cases, from the
chronological table and index to the statutes.

xii TABLE OF STATUTES.

PAGE

3 Jac. 1, c. 5 (Benefice) 21, 24, 43

7 Jac. 1, c. 6 (Oath of Allegiance, &c.) 21

3 Car. 1, c. 2 (Sunday) 21, 27

12 Car. 2, c. 24 (tfroww Lands) 81

13 Car. 2, st. 2, c. 1 (Corporation Act) ... .28 (w.)

25 Car. 2, c. 2 (Officers of the Crown. Declaration against Tran-

substantiation) 28 (n.), 39

30 Car. 2, st. 2, c. 1 (Parliament. Declaration against Transub-

stantiation) 24, 28, 30, 39, 181

1 W. & M. st. 1, c. 8 (Oaths of Allegiance and Supremacy) . . 23

1 W. & M., st. 2, c. 2 (The Bill of Sights) 29, 34

1 W. & M. c. 9 (Papists) 29

1 W. & M. c. 15 (Papists) 29

1 W. & M. c. 18 (Church of England : Religious Worship) . . 21, 2^3

I W. & M. c. 26 (Benefice) 24, 43

7 & 8 Will. 3, c. 24 (Oaths, &c.) 28, 32

7 & 8 Will 3, c. 27 (Security of the King and (government} . . 28

II & 12 Will. 3, c. 4 (Popery) 25,30,32

12 & 13 Will. 3, c. 2, s. 2 (Act of Settlement) .... 35

13 Anne, c. 13 (14 Ruff.) (Benefice) 44

1 Geo. 1, st. 2, c. 13 (Security of the Sovereign) . . .28, 39, 181

1 Geo. 1, st. 2, c. 50 (Crown Lands (forfeited estates)) . . 30
9 Geo. 2, c. 26, ss. 3, 4, & 6 (Indemnity, &c.) . . . .39, 181
9 Geo. 2, c. 36 (Georgian Mortmain Act) . . . .150, 254, 256
11 Geo. 2, c. 17 (Benefices) * . . 44

26 Geo. 2, c. 33 (Clandestine Marriages) 52

18 Geo. 3. c. 60 (Papists) 32

31 Geo. 3, c. 32 (Religious Worship: Roman Catholic: Superstitious

Uses) . . . 32, 49, 184

35 Geo. 3, c. 21 (Ireland. Maynooth Grant} .... 144

48 Geo. 3, c. 55, sched. B. (House Tax) 159 (n.)

52 Geo. 3. c. 155 (Criminal Law: Nonconformists: Religious

Worship) 50, 51, 184

9 Geo. 4, c. 85 (Charities (Conveyances)) 256

10 Geo. 4, c. 7 (The Roman Catholic Relief Act, 1829) 33, 36, 46, 48, 169,

254, 257

2 & 3 Will. 4, c. 115 (The Roman Catholic Charities Act, 1832) 33, 51, 141,

142, 184, 253, 256

4 & 5 Will. 4, c. 76 (Poor Law Amendment Act, 1834) . 88, 91

6 & 7 Will. 4, c. 85 (The Marriage Act, 1836) ... 52, 53, 54
1 Viet. c. 22 (Criminal Law. Marriages, (fee.) . . . .53 (n.)
1 Viet. c. 26, s. 7 (Witts Act) . . . . . . . 81

1 & 2 Viet. c. 56 (The Poor Relief (Ireland) Act, 1838) . . 225

2 & 3 Viet, c, 54 (Custody of Infants) 69, 214

5 & 6 Viet. c. 35 (TJie Income Tax Act, 1842) .... 157

7 & 8 Viet. c. 101, s. 31 (The Poor Law Amendment Act, 1844) . 93

TABLE OF STATUTES. Xlll

PAGE

9 & 10 Viet. c. 59 (Church of England: Religious Worship} 33, 50 (n.), 184
11 & 12 Viet. o. 42 (Procedure before Justices as to Indictable

Offences) 220, 222

11 & 12 Viet. c. 108 (Diplomatic Relations with See of Rome) . 35, 180
14 & 15 Viet. c. 36 (The House Tax Act, 1851) . . . .159 (n.)

14 & 15 Viet. c. 50 (Ecclesiastical Titles Act) .... 46

15 & 16 Viet. c. 36 (Protestant Dissenters). . . 50, 184, 186, 187
15&16 Viet, c. 85 (The Burial Act, 1852) . . . .58,60

16 &17 Viet. c. 51, s. 16 (Succession Duty) .... 155
16 & 17 Viet. c. 134 (The Burial Act, 1852) . 58, 60 (n.) 160 (n.) 161

17&18 Viet. c. 87 (The Burial Act, 1854) 58

18 & 19 Viet. c. 81 (The Places of Worship Registration Act, 1855) 51, 52
18 & 19 Viet. 86 (Charities: Jews: Religious Worship: Roman

Catholics) 51, 138 (n.)

18 & 19 Viet. c. 124 (Charitable Trusts: Amendment) . . 161, 163, 164

18 & 19 Viet. c. 128 (The Burial Act, 1855) .... 59

19 & 20 Viet. c. 119 (TJie Marriage and Registration Act, 1856) . 54
20&21 Viet. c. 81 (The Burial Act, 1857) . . . . 59

20 & 21 Viet. c. 85, s. 35 (The Matrimonial Causes Act, 1857) . 71

21 &22 Viet. c. 48 (Oaths of Allegiance) 38

22 & 23 Viet. c. 61, s. 4 (TJie Matrimonial Causes Act, 1859) . 71

23 & 24 Viet. c. 136, s. 2 (Charities) 164

23 & 24 Viet. c. 144 (The Matrimonial Causes Act, 1860) . . 147, 159

24 & 25 Viet. c. 100, s. 43 (TJie Offences against the Person Act,

1861) ....'. .... 72, 87

25 & 26 Viet. c. 43 (Tlie Poor Law (Certified Schools) Act, 1862) . 94, 99

26 & 27 Viet. c. 106 (Charities) ...... 182

28 <fe 29 Viet. c. 81 (Marriages Confirmation) .... 184

29 & 30 Viet. c. 19 (Parliament Oaths) 182

29 & 30 Viet. c. 113, s. 14 (Poor Law Amendment) . . 96, 99 (n.)

29 & 30 Viet. c. 118 (Industrial Schools : Reformatories) . . 129, 222

30 & 31 Viet. c. 62 (Declaration : Transubstantiation) . . .39, 182
30 & 31 Viet. c. 75 (Lord Chancellor of Ireland) ... 37

30 & 31 Viet. c. 101 (Public Health (Scotland)) .... 221

31 & 32 Viet. c. 25 (Endowed Schools : Reformatories) . . . 222
31 & 32 Viet. c. 72 (Promissory Oaths) 39, 42

31 & 32 Viet, c. 122 (Poor Laiv Amendment) . 52 (n.), 89, 91, 99 (n.),

100, 223

32 & 33 Viet. c. 110 (Charities : Religious Worship) ... 166

33 & 34 Viet. c. 48 (Poor (Removal)) 33

33 & 34 Viet. c. 75 (Elementary Education Act) . . . 107, 123, 252

34 & 35 Viet. c. 26 (Roman Catholics: University Tests) . . 45
34 & 35 Viet. c. 48 (Promissory Oaths) . 31, 39, 40, 49, 169 (n.), 176 (n.)
34 & 35 Viet. c. 53 (Ecclesiastical Titles Act Repeal) . . ' . 46
36 & 37 Viet. c. 12 (Infants) . . . . . , . 70, 214
36 & 47 Viet. c. 50 (Places of Worship Sites) . . 64

xiv TABLE OF STATUTES.

PAGE

38&S9 Viet. c. 55 (The Public Health Act, 1875) ... 221

38 & 39 Viet. c. 62 (Summary Prosecutions Appeals (Scotland)) . 221

39 & 40 Viet. c. 79 (The Elementary Education Act, 1876) . 109, 118, 120,

122, 137, 217

41 Viet. c. 16 (Factory and Workshops Act} .... 125

42 & 43 Viet. c. 49 (Summary Jurisdiction) .... 222

42 & 43 Viet, c. 54 (Public Health Act, &c.) .... 225

43 & 44 Viet. c. 41 (The Burial Laws Amendment Act, 1880) . 48, 62
43 & 44 Viet. c. 15 (Industrial Schools Amendment Act) . . 130
43 & 44 Viet. c. 23, ss. 2, 3 (Elementary Education Act, 1880) . 123, 125
45 & 46 Viet. c. 21 (Places of Worship Sites Amendment) . . 64

48 & 49 Viet. c. 51, s. 11 (Customs and Inland Revenue Act, 1885) 155

49 & 50 Viet. c. 27 (Guardianship of Infants Act, 1886) 72, 82, 84, 210

50 & 51 Viet. c. 58 (Coal Mines Regulation Act). ... 120

51 Viet. c. 8, s. 21, sub-s. 2 (Customs and Inland Revenue Act, 1888) 154 (n.)

51 & 52 Viet. c. 42 (Mortmain and Charitable Uses Act, 1888) . 150, 258

52 & 53 Viet. c. 44 (Prevention of Cruelty to, and Protection of,

Children Act, 1889) . .' 215

52 & 53 Viet. c. 56 (Poor Law Act, 1889) .... 72, 73, 224

53 & 54 Viet, c. 33 (Statute Law Revision Act, 1890) . . 177 (n.)

54 & 55 Viet. c. 3 (Custody of Children Act, 1891) . . . 226
54 £ 55 Viet. c. 17 (Charitable Trusts (Recovery) Act, 1891) 167
54 & 55 Viet. c. 23 (Industrial Schools Act) .... 132
54 & 55 Viet. c. 56, s. 5 (The Elementary Education Act, 1891) . 108, 118,

119, 173 (n.), 249

54 & 55 Viet. c. 73 (Mortmain and Charitable Uses Act, 1891) . 150,

153 (n.), 258

TABLE OF CASES.

PAGE

Agar-Ellis v. Lascelles . . 66, 69
Andrews v. Salt ... 66, 76
A.-G. it. Delaney . . .145 (n.)
v Gladstone . 139

PAGE

Dillon v. Reilly . . .144 (>.)
Dorrian v. Gilmore . . . 145 (».)

Flderton, Re 69

._.. _ v Power 137 (n.)

Elliot, Re 144

v Tndd 1 37 (n ~\ 138 (n \

Attree v Hawe . 152

Felan v. Russell . . .144 (n.)

Austin v. Austin .... 74

Barnardo v. Me Hugh ... 81
Besant, Ee 70

Fynn, Re .... 82 (n.), 83

Gates and Jones's Case . . 138 (n.)
Gill's Minors, In re .... 67

Blake v. Leigh 27

Goldswortny, Re .... 71

BlundelPs Trusts .... 144
Boyer v. Bishop of Norwich . 44

Hawks worth v. Hawks worth . 74
Heath v. Chapman . . .142, 143
Hill v. Hill . 75

Boyle v. Boyle .... 144 (n.)
Bradshaw v. Tasker . . 138 (n.}

Hoare v. Osborne . . . 139 (n.}

Breeks v. Woolfrey 61, 62, 143 (»•)
Brennan v. Brennan . . 144 (n.)
Brown v. Collins . • . 83

In Re Dean, Cooper-Dean v.
Stevens 140 (n.)

Campden Charities, Ke . . 161
Carbery v. Cox . . . . 145, 147
Gary v Abbot 137 (n ) 138 (n) 142

Iredell v. Iredell .... 68

Kehoe v. Wilson . 139 (n.\ 146
Kerr, Re 81 (n.)

Clarke, In re 77

Cocks v. Manners . .139 (n.), 147
Commissioners of Inland Re-
venue v. Forrest 156 (n )

Listen v. Kegan .... 147
Lomax v. Ripley . . . 149 (n.)
Lyons, Re 68

Commissioners of Charitable
Donations and Bequests v.
Walsh . 144 (n )

Lyon v. Blenkin .... 72
McGrath, In Re . 79, 82 (n.)

Commissioners of Income Tax
v. Pemsel ...... 136

Meade's Minors, In re ... 65
Mersey Dock v. Cameron . 159 (n.)

Condon v, Vollum . . 70, 71 (n.)

Michel's Trust .... 143, 144

XVI

TABLE OF CASES.

PAGE

Morice v. Bishop of Durham . 137
Morrow v. McConville . . 145 (n.)

Nevin, Re Violet . . 76 («.), 78
Newberry, Re 74

Perry v. Tuomey

Read v. Hodens

145

144 (n.)

Reg. v. Barnardo, In Re Gossage 86

- v. --- , -- Tye . 85

- v. Haselhurst .... 91

- v. Howes ..... 67

- v. Nash ..... 81

- v. The Guardians of St.
Luke's, Chelsea .... 92

Rowbotham v. Dunnett . 149 (n.)

PAGE

Scanlan, Re . . . . 70, 75, 76
Shelley v. Westbrooke ... 71
Sims v. Quinlan .... 146
Skinner v. Orde .... 75 (n.)

Smart v. Smart 71

Spence, In Re . . . 82 (??.), 83
Stourton v. Stourton 74

Thomas v. Roberts
Todd v. Lynes .

71 (n.)

Wellesley v. Duke of Beaufort 82 (n.)

West v. Shuttleworth . . 139, 141,

143,^144

Wilkinson's Trusts . . 145 (>.), 147

Witten, Re 71 (n.)

Witty v. Marshall .... 75

A MANUAL OF THE LAW SPECIALLY
^ AFFECTING CATHOLICS.

CHAPTEE I.

THE PENAL LAWS.*

THE great dividing line in the religious history of this country
is the year 1535 — the twenty-sixth year of the reign of
Henry VIII. From the days of St. Augustine till then,
England was in full communion with the See of Eome, and her
laws recognised the spiritual supremacy of the Pope. The
" Act concerning the King's Highness to be Supreme Head of
the Church of England, and to have authority to reform and
redress all errors, heresies, and abuses in the same " (26 Hen. 8,
c. 1), severed the nation from the unity of Christendom, and
transferred the Papal jurisdiction to "the Imperial Crown
of this realm," with which, except during the brief reign of
Philip and Mary, it has since remained united. In popular
language, this fact is expressed by the statement that up to
the year 1535 England was Catholic and has since been
Protestant. And the statement is perfectly accurate. Mr.
Bryce has well observed: "The whole fabric of medieval
Christianity rested upon the idea of the Visible Church. Such
a Church could be in nowise local or limited. To acquiesce in
the establishment of National Churches would have appeared
to those men, as it must always appear when scrutinised,

* The greater portion of this Introductory Chapter, which is from the pen
of Mr. Lilly, was originally published in the Dublin Review, and is thence
reprinted by the kind permission of the editor.

2 THE LAW SPECIALLY AFFECTING CATHOLICS.

contrary to the nature of a religious body, opposed to the

genius of Christianity Had this plan, on which so many

have dwelt with complacency in later times, been proposed
either to the primitive Church in its adversity, or to the
dominant Church of the ninth century, it would have been
rejected with horror ; but since there were as yet no nations,
the plan was one which did not, and could not, present itself." *
Unquestionably, the idea of the Church Catholic dominated the
European mind from the very introduction of the Christian
religion until the close of the Middle Ages. Protestantism
represents — such is its inner meaning — the disallowance of that
idea. The essence of the movement called the Eeformation, in
all the different forms which it assumed in various European
countries, is not the denial of one or another article of the
Catholic Creed, but the rejection of ecclesiastical unity and
universality, and of the Supreme Pastorate which is the
Sacramentum Unitatis. Hence the appropriateness of the
name Protestant because it implied nothing positive and might
be used, indifferently, by all who protested against and threw
off the authority of the Church, t

The special characteristic of the English Eeformation is that
it attributed to the Crown the jurisdiction which it denied to
the Pope. It is on this account that we have called the year
1535 the dividing line in the religious history of England.
Archbishop Tait insists that what he terms athe national
settlement " dates from the previous year, when by the Act of
the 25 Hen. 8, c. 19, " appeals to Eome in spiritual causes were
first forbidden, and the rule of appeal to the King, from the
Archbishops' Courts, the principle of which has ever since been
maintained, was finally settled." t But the change wrought by
Henry VIII. went far beyond this prohibition of appeals to the
Apostolic See. It involved his assumption of the entire

* * The Holy Koman Empire,' p. 95, eighth edition.

t On this subject see Mohlers ' Kirchengeschichte,' vol. iii. p. 132.

J Preface to Broderick and Freemantle's ' Ecclesiastical Judgments of the
Privy Council,' p. 10. We quote Archbishop Tait's words as we find them.
But, as a matter of fact, appeals to Rome were not first forbidden by this
statute. They had been forbidden in " causes testamentary or matrimonial,
divorces, tithes, oblations or obventions," by a statute of the previous year—-
Viz., the 24 Hen. 8, c. 12.

THE PENAL LAWS.

spiritual jurisdiction, the whole ecclesiastical authority, pre-
viously exercised in this country by the Supreme Pontiff.
It is declared by the 26 Hen. 8, c. 1, that " the King, his
heirs and successors, kings of this realm, shall be taken,
accepted, and reputed the only Supreme Head on earth of the
Church of England, called Anglicana Ecclesia, and shall have
and enjoy, annexed and united to the Imperial crown of this
realm, as well the style and title thereof, as all honours,
dignities, pre-eminences, jurisdictions, privileges, authorities,
immunities, profits and commodities to the said dignity of
Supreme Head of the same Church belonging and appertaining :
and shall have full power and authority, from time to time, to
visit, repress, redress, reform, order, correct, restrain and amend
all such errors, heresies, abuses, offences, contempts and enormi-
ties, whatsoever they be, which by any manner of spiritual
authority or jurisdiction, ought or may lawfully be reformed,
repressed, ordered, redressed, corrected, and restrained, or
amended: any usage, custom, foreign laws, foreign authority,
prescription, or any other thing or things to the contrary not-
withstanding." " Every man," observes Professor Brewer,

who cares to read the history of those times feels at once that [the
Royal Supremacy] is the question; this is the keystone of the
Reformation ; all other topics dwindle into insignificance beside it.
This is the real point at issue between the advocates of the old
and the new system ; this, and not purgatory, not pilgrimages,

not transubstantiation This has spread its broad shadow

across the range of centuries. It has fallen like a thing of evil on
Eomanists and Puritans alike. If it brought More and Fisher to
the scaffold in the reign of Henry, it wrung the hearts and wasted
the life-blood of Cartwright and the Puritans in the reign of
Elizabeth. If it hung like a sword over the heads of the Tudor
bishops, and prevented all relapse to Home, it equally drove out
from the pale of the National Chnrch every conscientious Non-
conformist who was a zealous Protestant in everything with the
exception of this one Article. It kept the Church obedient to the

Sovereign, and to the first principles of the Reformation

No distinction [between civil and religions crimes] existed at the
time in the mind either of Sovereign or of people ; the King, as
spiritual head of the Church, assumed to himself the right of
punishing such offences, not as contrary to the laws of the State,
but as contrary to what he was pleased to determine was the law
of God — offences as much against his spiritual as against his

B 2

4 THE LAW SPECIALLY AFFECTING CATHOLICS.

temporal power. He never stopped to consider how far this or
that creed might be excused or condemned, and its asserters
brought to the scaffold as rebels or as heretics. That was a
distinction first set up by the subtle statesmen of the reign of
Elizabeth, when persecution for religion was growing unpopular.
It had no place in the mind of Henry. The passing of the Six
Articles, and the punishment of those who transgressed them, the
persecution of Tyndal, and the death of Frith and Barnes, all
show this. When he transferred to himself the supremacy of the
Church, he transferred with it all the powers which the Church
had ever exercised for the punishment of heresy or disobedience
to its authority. If the Pope was the Bishop of bishops, so was
he ; if the Pope could of himself determine controversies of faith,
so did he. Whether the doctrine of purgatory, or the sacrament
of penance, or the worship of saints were or were not to constitute
part of the creed, and of the teachings of the Church of England,
depended upon the King alone. It is true that he did not
administer the sacraments and ordain priests and bishops ; but if
any man had questioned his power to do so, he would have
incurred the penalty of high treason. " A bishop," says Cranmer,
" may make a priest by the Scripture, and so may princes and
governors also, and that by the authority of God committed to
them." In common with other reformers, Cranmer looked upon
all spiritual functions as absolutely dependent on the will of the
King, as temporal commissions, like those of any other magistrate.*

It would be an error to regard the momentous change thus
effected in 1535 as of sudden incidence. The contest between
the Papal power and the regal power had been waged, with
longer or briefer truces, from the days of the Norman Con-
quest, f One of its acutest phases was in the reign of the
Second Henry, on whose behalf we find claims made, anticipa-
ting, by nearly four hundred years, the pretensions successfully
vindicated by the Eighth. Eeginald FitzUrse, when he was
disputing with Becket, just before the murder, asked him from

* * English Studies,' pp. 302-32.

f The first of " the statutes of prsemunire and provisors " was passed in
the thirty-fifth year of Edward I. Its object was to prevent the Court of
Rome from presenting or collating to any bishopric or living in England.
The Act commonly called " the statute of prasmunire " is the 16 Ric. 2, c. 5,
which provides that whoever procures at Rome or elsewhere any translations,
processes, excommunications, bulls, instruments, which touch the King,
shall "be put out of the King's protection, and shall be attached by his body
to answer to the King and his council. Prsemunire, corrupted from prte-
monerej is the initial word in the first sentence of the writ to which it gives
its name.

THE PENAL LAWS.

whom he had the archbishopric? Thomas replied, "The
spirituals -I have from God and my lord the Pope ; the
temporals and possessions from my lord the King." " Do you
not/5 asked Beginald, "acknowledge that you hold the whole
from the King ? " " No," was the prelate's answer. " We have
to render the King the things that are the King's, and to God
the things that are God's." " The words of the Archbishop,"
writes Bishop Stubbs, " embody the commonly received idea ;
the words of Eeginald, although they do not represent the
theory of Henry II., contain the germ of the doctrine which
was formulated under Henry VIII : " * a doctrine generally sup-
posed to be set forth in the Oath of Homage taken by the
Anglican bishops : " I acknowledge that I hold the said
bishopric, as well the spiritualities as the temporalities thereof,
only of your Majesty." f " The royal supremacy," writes
Professor Brewer, " was now to triumph after years of
effort, apparently fruitless and often purposeless. That which
had been present to the English mind for centuries was
now to come forward in a distinct consciousness, armed
with a power that nothing could resist. Yet, that it should
come forth in such a form is marvellous. All events had
prepared the way for the King's temporal supremacy ; opposition
to Papal authority was familiar to men; but a spiritual su-
premacy, an ecclesiastical headship, as it separated Henry VIII.
from all his predecessors by an immeasurable interval, so was
it without precedent and at variance with all tradition." \

* ' Constitutional History,' vol. iii. p. 294.

f The late Mr. J. W. Lea in his very learned pamphlet, ' The Bishop's
Oath of Homage,' combats this view, and maintains that the " spiritualities "
mentioned in that formula " are simply and only the * Bona Spiritualia,' the
' spiritual ' portion of the worldly goods of the bishopric as a benefice." p. 42.

$ 'Letters and State Papers, Foreign and "Domestic, of the Eeign of
Henry VIII.,' vol. i. p. cvii. (Intro.). So in the 1 Philip and Mary, c. 8, it is
asserted, " The title or style of supremacy or supreme head of the Church of
England, and of Ireland, or of either of them, never was, nor could be, justly
or lawfully attributed or acknowledged to any king or sovereign governor of
this realm." Dodd has some very judicious remarks upon the " mistake of
several Protestant lawyers, who pretended that King Henry VIII. did not
assume unto himself any more ecclesiastical power than what had been
claimed and practised by his predecessors in former days, both under the
British, Saxon, and Norman periods." See his ' Church History of England,'
part i. art. 3 (vol. i. p. 249, in Tierney's edition).

6 THE LAW SPECIALLY AFFECTING CATHOLICS.

The explanation of this triumph of the Eoyal supremacy is
largely supplied by the general course of events and tendencies
of thought during the two preceding centuries of European
history. In particular, it may be observed that the authority
of the Apostolic See had been much impaired by the great
schism. And although when that breach of Catholic unity had
been definitely healed, the Papacy had put on the semblance of
its former greatness, it never recovered its predominance in the
European public order. There was, as Eanke has observed,
" throughout all Christendom, in the South as well as in the
North, a general struggle to curtail the rights of the Pope ; "
and " Eoyalty began to make far greater claims than it had ever
made before." * In this country, the authority exercised by
the Tudor Sovereigns was such, both in kind and degree, as it
is very difficult for us, in these days, adequately to conceive of.
" The prerogative was absolute," writes Professor Brewer, " both

in theory and practice Government was identified with

the will of the Sovereign, his word was law for the conscience

as well as the conduct of his subjects Any wrong, any

injustice, any royal violation of the law, however flagrant, was
a more tolerable evil than disobedience or opposition to the
will of the prince, however just or sacred the cause. For that,
in the temper of the times, people had no sympathy ; the will
of the prince, however expressed, as Eomanist or Protestant, in
passing the Six Articles or beheading More, in divorcing Queen
Katherine or marrying Anna Boleyn, was to be respected.
Innocence itself was to plead guilty, or suffer as guilty if the
King required it." f And this vast power was practically
without check or limitation. The Wars of the Eoses had swept
away the old nobility, who, in the absence of constitutional
restraints, kept down the extension of the royal prerogative,
and the new race of ministers were the mere creatures of the
Sovereign, usually taken from a low rank in life, flourishing in
his smile, annihilated by his frown, made or unmade at his will
or caprice. Again, the patrimony of the Crown was immense,

* « Die Komischen Papste,' vol. i. pp. 39, 42.

f * Letters and Papers, Foreign and Domestic, &c.,J vol. ii. part i.
p. cclxxiv. (Intro.),

TEE PENAL LAWS.

and the servility of Parliament, together with the system of
forced loans and benevolences, rendered its pecuniary resources
almost limitless.* How utterly subservient Parliament was to
the royal pleasure, how destitute of one spark of the spirit of
freedom, how void of any, even the slightest, feeling for the
liberties of the subject, a glance at the Statute-book is sufficient
to show. Its functions were practically confined to registering
the edicts of the Sovereign, and to voting the supplies which he
required.f Nor was his power tempered by a force which in
this age has to be reckoned with, even in despotic countries.
" Public opinion " can hardly be said to have existed in the
days of the Tudors. The influence most resembling it was that
wielded by the ecclesiastical order. But under Henry VIII.
this influence almost ceased to act as a check upon the
authority of the Crown. Professor Brewer dates its total
extinction as a barrier upon arbitrary power at the death of
Wolsey.J At the end of the fifteenth century the Church in
England, as in the greater part of Europe, was in a lamentable
condition. There is a mass of evidence that multitudes of
Christians lived in almost total ignorance of the doctrines and
in almost complete neglect of the duties of their faith. The
Pater Noster and Ave Maria formed the sum of the knowledge
of their religion possessed by many; and not a few passed
through the world without receiving any sacrament save that
of Baptism. The spiritualty, from the head downwards, had
fallen from their high estate. The religious were no longer
animated by their first fervour, and among the secular clergy
there was much corruption of life. Pope Adrian VI. has left
on record his conviction that the troubles which he was called

* " The King had the entire and exclusive control of the money paid into
the Exchequer. The country was called upon for loans and subsidies, and
the Parliament determined the amount ; but it never presumed to regulate
the expenditure of the money so collected, or even dictate how it should be
applied." — ' Letters and Papers, &c.,' vol. ii. part i. p. cxciii.

t " The King was the only representative of the nation, Parliament was
little more than an institution for granting subsidies and regulating the duties
on hats and caps. No ambassador or political agent cared in the least what

Parliament might or might not think of his conduct His sole object

was to please the King and perhaps his minister The entire personality

of the nation was wrapped up in the King." — Ibid. p. Ixv.

t Ibid. p. cclxxiii. (Intro.).

8 TEE LAW SPECIALLY AFFECTING CATHOLICS.

to face had arisen " propter peccata hominum, maxime sacer-
dotum et Ecclesise prselatorum." In the Holy See itself, he
declares, there had been, for many years past, " multa abomi-
nanda, abusus in spiritualibus, excessus in mandatis et omnia
denique in perversum mutata." ' Unquestionable is it that in
most Continental countries Protestantism — to quote the words
of Mohler — " arose, partly, from the opposition to much that
was undeniably bad and defective in the Church." f The
Anglican Keformation, indeed, it is not easy to trace to any
religious motive. Lord Macaulay is well warranted when he
states, " Of those who had any important share in bringing it
about, Eidley is perhaps the only person who did not consider
it a mere political job; and Kidley did not play a very im-
portant part." J And the clergy in their low estate, with slight
hold upon the people, and practically severed from the
protection of the Holy See, § were unable to offer any effective
resistance to the authors of the schism. Eesist, indeed, they
did. Nothing is more opposed to the fact than the assertion
still made, from time to time, that the renunciation of the
authority of the Pope was their free act, that their submission
to the royal supremacy was voluntary. It is difficult to imagine
more monstrous chicane than that by which the King involved
them in the penalties of a prcemunire — imprisonment for life
and forfeiture of property — for submission to the legatine
authority which he had himself, by royal warrant, permitted
Cardinal Wolsey to exercise. And our annals record no
grosser act of tyranny than his exacting from the Convocation
of Canterbury, as the price of their pardon, a subsidy of
£100,000 — equal at least to a million of our money — together
with their acknowledgment that he was " the singular protector,

* In his letter to his legate, Chieragato, as to which see Pallavicino, 1. ii.
c. vii. The original of the letter is given in * Fasciculus Eerum Expeten-
darum et Fugiendarum,' printed in 1595.

f *' Der Protestantismus enstand theils aus der Entgegensetzung gegen
unlaugbar viel Schlechtes und Fehlerhaftes in der Kirche, und darin besteht
sein Gutes."— ' Symbolik,' p. 11 (oth ed.).

J ' Works,' vol. v. p. 172.

§ See Professor Brewer's very able account of the affair of Dr. Standish.
" In the reign of Henry VIII.," he observes, " the Papal authority had ceased
to be more than a mere form, a decorum to be observed." — ' Letters and State
Papers, &c.,' vol. ii. part i. p. ccxxvi. (Intro.),

• r THE PENAL LAWS. 9

sole and supreme lord, and, as far as the law of Christ allows,
also supreme head of the Church and clergy of England."'
" The clergy," writes Mr. Gairdner, " were altogether helpless.
Under the existing law of prcemunire they were quite at the
King's mercy. It was an engine that might be turned against
them capriciously, on the most slender pretexts, and, knowing
its power, they may well have been glad to purchase immunity
for the future by a frank recognition of the supremacy to which
they were already compelled to bow in practice." t Again, the
denial of Convocation in 1534 that " the Bishop of Kome had
any greater authority conferred upon him by God in Holy
Scripture than any other foreign bishop," was merely the
enforced answer to a royal question. J The terrorised priest-

* The Northern Convocation adopted the same language, and voted the
King £18,840. — Lingard's * History of England,' vol. ii. c. viii.

f ' Letters and Papers of Henry VIII.,' vol. v. p. 15. Mr. Gairdner had
previously observed : " Even with the reservation contained in the words
* quantum per Christi legem licet,' the concession was made with considerable
reluctance, but, at the Archbishop's suggestion, it was passed unanimously.
It was repented almost as soon as it was made ; for however theoretically
defensible might be the title to which they had agreed, and whatever pains
they might have taken to guard against misconstruction, the clergy could
not but feel the moral disadvantage at which they now stood in having
yielded at all."

J On this subject it is worth while to quote the following passage from the
extremely able essay, by Dr. Lingard, " Did the Church of England Keform
Herself?" contributed to the Dublin Review of May 1840 (vol. iii. of the
First Series) :

" To the Lower House of Convocation was proposed, by order of the King,
the following question : ' Has any greater authority in this realm been given
by God in the Scripture to the Bishop of Home than to any foreign bishop ? '
The reader will observe the artful structure of this question. Avowedly,
there is no direct mention of the Bishop of Eome in the Scripture, no
specification of the spiritual authority given to the successor of St. Peter in
particular; no, nor even of the authority given to the successors of the
Apostles in general. On those subjects the Scripture is silent. Not one of
the sacred writers has thought of describing in detail the plan of Church
government which the Apostles established, to be observed after their death.
For that we must have recourse, as the Oxford teachers admit, to tradition.
Hence it was natural to expect that to confine the question to the doctrine
expressly taught in the Scripture would serve the same purpose as the
introduction of the qualifying clause, ' as far as allowed by the law of Christ,'
had served in the recognition of the King's supremacy. Many a man of timid
mind, though he might in reality admit the authority of the Pope, might
reconcile the denial of it with his conscience by contending that he had only
denied that it was directly taught in the Scripture. It was not, however,
before the last day of the Session, after the Bills abrogating the Papal
jurisdiction had passed the two Houses, and when the King made them the

10 THE LAW SPECIALLY AFFECTING CATHOLICS.

hood dared not return any other. " It was as easy," writes
Harpsfield, " for the King to overthrow this brittle and fragile
clergy as it is for a lusty, sturdy, strong man to give his
adversary a fall in wrestling whom he hath long kept in prison,
with coarse and thin diet, and hard lodging withal." *

This is the true explanation of the great change effected by
the Act of 26 Hen. 8, c. 1. The other religious legislation of
that monarch may be regarded as preparatory to, or supple-
mentary of that enactment. It is extremely probable, indeed
we may take it as certain, that when Henry entered upon his
contest with the Papacy in the matter of the divorce, he by no
means contemplated the separation of his kingdom from the Holy
See.f But we, judging after the event, can easily discern that
the very existence of the Papal supremacy was involved in the
King's matrimonial cause. Professor Brewer justly observes :
" If Pope Clement had yielded to the menaces or flattery of the
King and his ministers, if he had parted with any portion of his
jurisdiction and authority at their desire, in so important a case
as this, he would not only have sacrificed to his own wishes or
personal convenience the rights and dignity of his office, but
would have completely betrayed that ecclesiastical jurisdiction
and order which he was bound to uphold, and of which he was
the professed head and representative." f And, indeed, it was

law of the land by giving to them the royal assent, that the Lower House
made its report to the Archbishop. Thirty-four members answered negatively,
four affirmatively, one doubtfully. The same question was subsequently
put to the two Universities, and from both were obtained such answers as
the King required, from Cambridge on the 2nd of May, from Oxford on the
7th of June " (p. 345.).

* f Narrative of the Divorce,' p. 96. (Printed by Lord Acton for private
circulation.)

f Professor Brewer writes : " To this result he was brought by slow and
silent steps. He had so long threatened to break with the Pope that he was
compelled, at last, to make his own threats good. For his own purposes he
had done so much to encourage attacks upon the Papacy, to question its
dispensing power, to menace its authority, that to retrace his steps, had he
felt inclined to attempt it, was impossible. The marriage with Anne Boleyn
completed the recoil. He had stooped down from monarchy to match with
a plebeian. He had forfeited his rank among the rulers of Christendom. It
mattered little to take one step further, and sacrifice his place among
Christian rulers, whose dignity and rule were endorsed and authenticated by
the Pope." — ' Letters and State Papers, &c.,' vol. iv. p. dcxliv. (Intro.).

$. Ibid. p. dcxxxi. (Intro.).

THE PENAL LAWS. 11

evident to one of the wisest and best of men found in those
evil days — " a light shining in a dark place " — that the course
of events could not but lead to this issue, W hence, and of what
kind, is the Pope's' jurisdiction? When Sir Thomas More, we
read, had been found guilty on the indictment charging him
with having traitorously endeavoured to deprive the King of his
title of Head of the Church, he said : " I*have, by the grace of
God, been always a Catholic, never out of the communion of
the Koman Pontiff. But I had heard it said, at times, that the
authority of the Eoman Pontiff was certainly lawful and to be
respected, but still an authority derived from human law, and
not standing upon a divine prescription. Then, when I
observed that public affairs were so ordered that the source of
the power of the Eoman Pontiff would necessarily be examined,
I gave myself up to a most diligent examination of the question
for the space of seven years, and found that the authority of
the Eoman Pontiff which you rashly — I will not use stronger
language — have set aside, is not only lawful, to be respected,
and necessary, but also founded on the divine law and prescrip-
tion. That is my opinion ; that is the belief in which, by the grace
of God, I shall die." *

The statutes which prepared the way for, and led up to,
Henry VIII.'s Act of Supremacy are seven in number. The
first of them (21 Hen. 8, c. 13) prohibits, under pecuniary
penalties, the obtaining from the Apostolic See of licences for
pluralities or non-residence. The second (23 Hen. 8, c. 9)
forbids the citation of a person " out of the diocese where he or
she dwelleth, except in certain cases." The third (23 Hen. 8,
c. 26) is entitled " concerning restraint of payment of annates
to the See of Eome," and is specially worthy of note as being,
at the same time, an attempt to intimidate and to bribe the
Supreme Pontiff. It enacts that if any prelate hereafter should
presume to pay first fruits to the See of Eome, he should
forfeit his personalities to the King, and the profits of his See
as long as he held it, and that if the requisite Bulls for his
consecration were, in consequence, denied, he might be con-

* Sandar, « De Schismate Anglicano,' book i. c. 16. We avail ourselves of
Mr. David Lewis's translation.

12 THE LAW SPECIALLY AFFECTING CATHOLICS.

secrated without them ; and it authorised the King to disregard
any ecclesiastical censure of " our Holy Father, the Pope, or
any of his successors," and to cause divine service to be
continued in spite of the same. But, further, it permitted each
bishop to pay for the expediting of his Bulls, fees after the rate
of five per cent, on the amount of his yearly income, and
empowered the King to compound with " His Holiness " for the
moderation of annates, and by letters patent, which in this case
should have the force of law, to give or withhold his assent to this
Act, and at his pleasure to suspend, modify, annul, or enforce it.
This Act was, in fact, as Dr. Lingard has called it, a " political
experiment to try the resolution of the Pontiff."

The experiment failed, and in the next year the royal assent
was given to the Act by letters patent. In this year also
was passed a statute (24 Hen. 8, c. 12) forbidding, under the
penalty of prcemunire, appeals to Kome in " causes testa-
mentary, causes of matrimony and divorce, tithes, oblations and
obventions," and requiring the clergy to continue their ministra-
tions, in spite of ecclesiastical censures from Kome, under pain
of one year's imprisonment. It provides that no appeal shall
be made from the Archbishop's Court, save in cases touching
the King, when the appeal shall lie to the Upper House of Con-
vocation, and subjects persons appealing contrary to the Act to
the penalties of prcemunirc. The " Act for the Submission of
the clergy to the King's Majesty," passed in the next session
of Parliament (25 Hen. 8, c. 19), went still further, and for-
bade, under the like penalties, any appeal whatever " to the
Bishop or See of Kome," " in any causes or matters happening
to be in contention, and having their commencement and
beginning in any of the courts " of the realm. Appeals from
the Archbishop's Court, it provides, shall be to the King's
Majesty, in the King's Court of Chancery, and shall be deter-
mined by commissioners to be appointed by the King.* It
further recites the submission which had been extorted from
the clergy in the previous year, forbids them to make

* This occasional tribunal obtained the name of the Court of Delegates.
Its functions are now exercised by the Judicial Committee of the Privy
Council.

THE PENAL LAWS. 13

constitutions save with the King's licence, and empowers * the
King to appoint thirty- two persons to examine former canons,
and to approve or repeal them with the King's assent ; such
canons, if not contrary to law, or opposed to the royal prero-
gative, to be meanwhile in force. Another Act of the same
year (25 Hen. 8, c. 20) utterly abolishes annates, forbids,
under the penalties of prcemunire, the presentation of bishops
or archbishops to " the Bishop of Eome, otherwise called the
Pope," and the procuring from him of Bulls for their consecra-
tion, and establishes the method still existing in the Anglican
Church of electing, confirming, and consecrating bishops. The
next Act of the same year forbids, under the same penalties,
the King's subjects to sue to the Pope or the Eoman See for
" licences, dispensations, compositions, faculties, grants, rescripts,
delegacies, or any other instruments or writings," to go abroad
for any visitations, congregations, or assembly for religion, or
to maintain, allow, admit, or obey any process from Kome.

The headship of the Church in England, taken away by these
enactments from the Pope, was, in the following year, annexed
to the Crown by the Act of Supremacy (26 Hen. 8, c. 1),
which completed the religious revolution. We have, in a
previous page, quoted the words wherein the statute declares
the King the supreme head on earth of the Church of England,
and sets forth his power and authority in that capacity. " Of
this Act," Dr. Lingard well observes, " it may be remarked :
1st. That it differed greatly from the recognition originally
extorted from the clergy. That recognition confined the royal
supremacy within the limits prescribed ' by the law of Christ ' ;
this declaration affirmed it absolutely, and without qualification.
2nd. That, by giving to the King all the pre-eminence and
jurisdiction belonging to the dignity of the supreme head of the
Church, it invested him with all that authority which the Pope
had hitherto claimed and exercised in England, for no other
supreme head had hitherto been known in the English Church.
3rd. That it also invested him with episcopal power and juris-
diction ; not that he pretended to administer the sacraments —

* This power was never exercised, but appears to be still possessed by the
Crown.

14 THE LAW SPECIALLY AFFECTING CATHOLICS.

he had not made such progress in the new doctrine as to
believe with Archbishop Cranmer that ordination was unneces-
sary— but he claimed the right of directing those who had been
ordained to such ministry, of superintending their acts and
teaching, and of correcting and redressing all their errors,
abuses, and offences, which by any manner of spiritual authority
or jurisdiction ought to be corrected or redressed, that is, all
such as were committed by any overt act; for such as were
committed sine scandalo must be left to the justice of God." *

What full proof Henry VIII. made of his supreme ecclesias-
tical ministry is matter of history, known to every schoolboy,
and need not be narrated here. The importance which he
attached to it may be inferred from the high place assigned by
him to Thomas Cromwell, who was appointed, in 1535, his
" Vicegerent, Vicar-General, and Principal Official," " with full
power to exercise and execute all and every that authority and
jurisdiction appertaining to himself as head of the Church ; "
the first place, namely, in Convocation, and " a place on the
same form but above the Archbishop of Canterbury, in the
House of Lords." The Vicar-General's authority was confined
to ecclesiastical discipline. The settlement of doctrine Henry
took under his own personal care, as stands recorded in the
" Act for abolishing of diversity of opinions in certain articles
concerning Christian Keligion " ; commonly called the statute
of the Six Articles.! It is there related how the King, as
" supreme head immediately under God, of the whole Church
and congregation of England," not only caused the questions of
Transubstantiation, Communion in both kinds, Sacerdotal
Celibacy, Vows of Chastity, Private Masses, and Auricular Con-
fession, to be " debated, argued, and reasoned by the archbishops>
bishops, and other learned men of his clergy," but " also most
graciously vouchsafed, in his own princely person, to descend
and come unto his High Court of Parliament and Council, and
there, like a prince of most high prudence, and no less learning,
opened and declared many things of high learning and great
knowledge, touching the said articles, matters and questions, for

* Dublin Review (First Series), vol. iii. p. 340.
\. f 31 Hen. 8, c. 14.

THE PENAL LAWS. 15

an unity to be had in the same." Soon after Henry, " of his
bountiful clemency, appointed a commission of bishops and
doctors, to declare the articles of faith, and such other expedient
points, as with his grace's advice and consent should be thought
needful " ; and in the next session of Parliament it was enacted
that all declarations, definitions and ordinances which should be
set forth by them, with His Majesty's advice, and confirmed
by his letters patent, should be in all and every point, limitation
and circumstance, by all His Majesty's subjects, and all persons
resident in his dominions, fully believed, obeyed and observed,
under the penalties therein to be comprised (32 Hen. 8, c. 26).
"By this enactment," observes Dr. Lingard, "the religious
belief of every Englishman was laid at the King's feet. He
named the commissioners ; he regulated their proceedings by
his advice ; he reviewed their decisions ; and, if he confirmed
them by letters patent under the Great Seal, they became, from
that moment, the doctrines of the English Church, which every
man was bound to believe, under such penalties as might be
assigned. And what were these penalties ? A little later it
was enacted * that if any man should teach or maintain any
matter contrary to the godly instructions and determinations
which had been, or should be, thus set forth by His Majesty, He
should, in case he were a layman, for the first offence, recant
and be imprisoned twenty days ; for the second, abjure the
realm ; and for the third, suffer the forfeiture of his goods, and
imprisonment for life : but if he were a clergyman, he should,
for the first offence, be permitted to recant ; on his refusal, or
second offence, should abjure and bear a faggot ; and on his
refusal again, or third offence, should be adjudged a heretic and
suffer the pain of death by burning, with the forfeiture to the
king of all his goods and chattels." f

" All laws and statutes made against the See Apostolic of
Eome since the twentieth year of King Henry the Eighth "
were abolished by the 1 and 2. Philip and Mary, c. 8, which
" enacted and declared the Pope's Holiness and See Apostolic
to be restored, and to have and enjoy such authority, pre-

* By the 34 & 35 Hen. 8, c. 1.

f Dublin Eeview (First Series), vol. iii. p. 350.

16 THE LAW SPECIALLY AFFECTING CATHOLICS.

eminence, and jurisdiction as His Holiness used and exercised,
or might lawfully have used and exercised by authority of
his supremacy," before that date. By the 1 Elizabeth, c. 1,
this statute was repealed, and of the seven Acts against the
Eoman Pontiff, passed between the 21st and 26th years of
Henry VIII., of which we have given an account, the last six
were revived, as were also certain anti-papal statutes passed
subsequently to the enactment of Henry's Act of Supremacy
(26 Hen. 8, c. 1). That Act was not revived, no doubt
because Elizabeth, as a woman, shrank from assuming the title
of Supreme Head of the Church bestowed by it upon the
Sovereign. But although she did not take to herself that title,
she took all the authority implied therein, by the first Act of
her reign, which is called " An Act to restore to the Crown the
ancient Jurisdiction over the Estate Ecclesiastical and Spiritual ;
and abolishing all foreign Powers repugnant to the same." The
Act provides that the spiritual and ecclesiastical power, juris-
diction, superiority, authority, pre-eminence, privilege of every
foreign prince, person, prelate, state, or potentate, shall be
clearly abolished out of this realm; that such jurisdictions,
privileges, superiorities, and pre-eminences, spiritual and
ecclesiastical, as by any spiritual or ecclesiastical power or
authority hath heretofore been, or may lawfully be exercised or
used, for the visitation of the ecclesiastical state and persons,
and for reformation, order and correction of the same, and of all
manner of errors, heresies, schisms, abuses, offences, contempts,
and enormities, shall for ever be united and annexed to the
imperial Crown : and that the power of exercising this authority
by delegates to be appointed under the Great Seal, shall remain
to the Queen and her successors for ever. It forbids any one to
affirm, hold, stand with, set forth, maintain, or defend, whether
in writing or print, by word, deed, or act, the spiritual or
ecclesiastical authority, pre-eminence, power, or jurisdiction of
any foreign prince, prelate, person, state, or potentate; and
ordains that every person offending against this prohibition
shall, for a first offence, suffer forfeiture of all real and personal
property ; for a second offence, shall incur the penalties of
; and for a third offence shall be guilty of high

THE PENAL LAWS. 17

treason, and suffer accordingly. It provides, moreover, that an
oath recognising the Queen's Highness as " the only supreme
governor of this realm, as well in all spiritual and ecclesiastical
things, or causes, as temporal," shall be taken by all holding
office in Church and State, and by all laymen suing out livery
for their lands, or doing homage to the Crown. By this Act
the Queen was constituted the supreme ecclesiastical authority
in the Church of England. And, accordingly, in her com-
mission to her prelates appointed to perform the ceremony
of Archbishop Parker's confirmation we find this clause:
" Supplentes nihilominus, suprema auctoritate nostra regia, ex
mero motu ac certa scientia nostris, si quid aut in his, quse
juxta mandatum nostrum predictum per vos fient aut in vobis,
aut vestrum aliquo conditione, statu, facultate vestris ad
prcemissa perficienda desit aut deerit eorum quae per statuta
hujus regni nostri aut per leges ecclesiasticas in hac parte
requiruntur, aut necessaria sunt, temporis ratione et rerum
necessitate id postulante." * So also in the " Act declaring the
making and consecrating of the Archbishops and Bishops of
this realm to be good, lawful, and perfect " (8 Eliz. c. 1), it is
recited that "Her Highness, by her supreme power and
authority, hath dispensed with all causes or doubts of any im-
perfection or disability, that can or may, in any wise, be
objected against the same, as by Her Majesty's letters patent,
remaining of record, more plainly will appear : " whence, " it
is very evident and apparent that no cause of scruple, ambiguity,
or doubt can or may justly be objected against the said elec-
tions, confirmations, or consecrations."

As the first Act of Queen Elizabeth was directed to the extir-
pation of the Catholic religion, which she found professed in
this country upon her accession, so the second had for its object
the establishment of Protestantism. It is entitled " An Act for
the Uniformity of Common Prayer and Service in the Church,
and Administration of the Sacraments " (1 Eliz. c. 2), and is
commonly called the Act of Uniformity. It provides that " all
and singular ministers in any cathedral, or parish church, or

* The document is given in Haddan's edition of Bramhall's Works, vol.
iii. p. 178.

18 THE LAW SPECIALLY AFFECTING CATHOLICS.

other place, within this realm of England, shall be bounden to
say and use the matins, evensong, celebration of the Lord's
Supper, and administration of each of the Sacraments, and all
the common and open prayer in such order and form as is
mentioned in the book intituled ( The Book of Common Prayer
and administration of the Sacraments and other rites and
ceremonies in the Church of England/ authorised by Act of
Parliament, holden in the fifth and sixth years of our late
sovereign Lord King Edward the Sixth," with a few unim-
portant variations. The penalties which it provides for any
minister who disobeys are, for the first offence, the forfeit of a
year's profit of such one of his spiritual benefices or promotions
as it shall please the Queen to appoint, and imprisonment for
six months ; for a second offence, deprivation, ipso facto, of all
his spiritual promotions and imprisonment for a year ; and for
a third offence, imprisonment during life. But in case the
delinquent had no spiritual promotions, the first offence involved
imprisonment for six months, and the second, imprisonment for
life. The Act further requires all the Queen's subjects, having no
lawful or reasonable excuse for absence, to resort to their
parish church on Sundays and holidays, for the new service,
" upon pain of punishment by the censures of the Church, and
also upon pain that every person so offending shall forfeit, for
every such offence, twelve pence."

Queen Elizabeth's Acts of Supremacy and Uniformity, as
Hallam has observed, " form the basis of that restrictive code
of laws which pressed so heavily, for more than two centuries,
upon the adherents to the Komish Church." * We shall now
proceed t to give an account of the superstructure raised
upon this foundation.

First, then, by several statutes, Catholics offending against
the Act of Supremacy were made liable to capital and other
punishments as traitors. We have already seen that by this
enactment whoever maintained ain writing, or by print, by
word, deed, or act, the spiritual or ecclesiastical authority of

* * Constitutional History/ vol. i. c. 3.

f In what follows concerning the offences of spiritual treason and recusancy,
free use has been made of Mr. Anstey's learned work, * A Guide to the Laws
of England affecting Roman Catholics.'

THE PENAL LAWS. 19

any foreign prelate," should be deemed, on a third conviction,
guilty of high treason. A statute passed four years afterwards
(5 Eliz. c. 1) expressly named the Eoman Pontiff, and provided
that any of the subjects of the realm who should be convicted
of [having, within a year previously, " by writing, cyphering,
printing, preaching or teaching, deed or act," extolled or
defended the authority of the Bishop of Eome within the realm,
or of having wittingly attributed such to that See, should incur
the penalties of prcemunire for a first offence, and upon convic-
tion of a second should be guilty of high treason.* The statute
imposes the same punishment for declining to take the oath of
supremacy within a year after conviction.

The next of the statutes of spiritual treason is the 13 Eliz.
c. 2. The using, or putting in ure, within the realm, any bill,
writing, or instrument of absolution, or reconciliation of persons
to the See of Kome, the obtaining of any instrument whatever
from that See, and the assuring, or even promising, under
colour of such instrument to reconcile any person, and the
receiving such absolution and reconciliation, are by this Act
declared to be high treason, and punishable as such. All aiders,
comforters or maintainers of offenders, after the fact, are made
liable to the pains of prcemunire, and all persons to whom such
instruments have been offered and who shall not signify the
same to the Council within six weeks afterwards, incur the
penalties of misprison of treason.

The 23 Eliz. c. 1, refers to the same subject, but is far more
ample in its comprehension. It enacts the penalties of high
treason against all persons " who have, or shall have, or shall
pretend to have, power, or shall by any ways or means put in
practice, to absolve, persuade, or withdraw " any within the

* Mr. Anstey points out that the decisions under this statute very greatly
extended its application. " It has been holden that the mere act of com-
mending a book in defence of the Papal supremacy, or allowing it to be good,
after having read it, and even after having heard a report of its being written
in a foreign country, is an extolling or setting forth of the Papal authority
within the meaning of the statute. It has even been holden (although two
of the judges dissented from that construction) that a judge may ask a
prisoner after conviction of, and condemnation for a first' offence, whether he
be still of the same opinion, and that if he answer in the affirmative he is
guilty of high treason as having advisedly maintained the Papal power a
second time " (p. 31).

C 2

20 THE LAW SPECIALLY AFFECTING CATHOLICS.

realm " from their natural obedience," or to withdraw them " for
that intent" from the established religion to the Catholic
religion, or to move them to promise any obedience to the See
of Borne, to be had or used within the Queen's dominions ; and
aiders or abettors not disclosing the offence to a justice of the
peace, or higher officer, for twenty days after knowledge thereof,
are declared guilty of misprison of treason.

The penalties of high treason were enacted with greater
rigour by 3 Jac. 1, c. 4, against persons in like manner absol-
ving, persuading or withdrawing others, or being themselves
persuaded or withdrawn, " either upon the seas, or beyond the
seas, or in any other place within the dominion of the King's
Majesty, his heirs or successors," and against all their " pro-
curers and counsellors, aiders, and maintainers."

The 27 Eliz. c. 2,* was especially directed against the Catholic
clergy. It enacted that no Jesuit or seminary priest, or religious
or ecclesiastical person, born within this realm, and ordained, or
professed, by authority derived from the See of Kome, should
come into or remain in this realm, under penalty of high
treason, unless licensed by the bishop of the diocese and two
county justices, and that only in case of bodily infirmity, to
remain in their actual abode for a period not exceeding six
months ; and it provided the same penalty against all laymen
educated in any Jesuit College, or seminary beyond the seas,
who should not return to the realm, and take the oath of
supremacy within six months, after royal proclamation made
in that behalf in the city of London.

So much as to the offence of spiritual treason devised against
those who adhered to the Catholic religion in this country.
We now come to the offence of recusancy, invented in aid of
the Act of Uniformity. Popish recusants were Catholics who
forbore or refused to attend the new religious worship prescribed

* Very many trials under this sanguinary statute are reported in the
' Selection of Cases from the State Trials,' edited, in 1882, by Mr. J. Wu
Willis-Bund, for the Syndics of the Cambridge University Press. The
refusal of Charles I. to enforce the death penalty in some cases was one of
the principal grievances of the Long Parliament, vol. i., p. 480, Under
Charles II., in addition to the numerous victims of the so-called Popish Plot,
some fifty priests were about the same time convicted and executed under
this statute on the sole charge of being priests — vol. ii., 1157.

THE PENAL LAWS. 21

by that Act. After conviction they were termed Popish
recusants convict. The Statutes of Eecusancy, properly so
called, are 1 Eliz. c. 2 ; 23 Eliz. c. 1 ; 29 Eliz. c. 6 ; 35 Eliz.
c. 2 ; 3 Jac. 1, c. 5 ; 7 Jac. 1, c. 6 ; and 3 Car. 1, c. 2. But
besides these, there is a multitude of clauses to be found among
the penal laws passed for restraint of Popery, which declare
that other offences of an entirely new order shall be deemed
acts of Popish recusancy, and that those convicted of them shall
be deemed Popish recusants convict. Thus, in the Toleration
Act (1 W. & M. c. 18) it is enacted that every justice of the
peace may require any person that " goes to any meeting for
the exercise of religion to subscribe the declaration" of the
30 Charles 2, st. 2, c. 1, against Popery; and also to take the
oaths of allegiance and supremacy, and upon refusal thereof may
commit him to prison without bail : and that if he shall upon
a second tender of the section refuse to make and subscribe the
said declaration, he shall be then and there recorded for a
Popish recusant convict, and suffer accordingly. This style of
expression is used as a convenient mode of stating the penalties
to which it is intended to subject certain offenders, just as it has
frequently been enacted that certain other offenders shall incur
the pains and forfeitures of prcemunire. The expression, in
neither case, is intended to signify that the specific offenders
belong to the class noticed by the statutes of recusancy, or
those of prcemunire, but simply that they shall be punishable in
like manner.

The pains of recusancy were various. They may be classed
as Forfeitures and Disabilities.

As to Forfeitures, we have already seen that the Act of
Uniformity imposed a fine of 12d. for a first offence. The
23 Eliz. c. 1, enacts an additional forfeiture of £20 a month for
forbearing the established worship. And the 3 Jac. 1, c. 4,
empowers the King to receive £20 a month, and to seize two
parts in three of all the recusant's lands, leases, and farms. It
further enacts that if any Popish recusant convict shall conform,
and shall not afterwards, within one year from his conformity,
receive the sacrament in his own parish church, or if there be
none such, in the next adjoining church, he shall forfeit for the

22 THE LAW SPECIALLY AFFECTING CATHOLICS.

first year £20, for the second year £40, and for every succeed-
ing year £60 until he have received the sacrament. Moreover,
under this statute, every person who -shall retain in his service,
or shall relieve, or harbour, any servant, layman, or stranger,
who shall not repair to church for a month together, shall
forfeit £10 for every month.

The 3 Jac. 1, c. 5, also provides that every Popish recusant
convict married to a woman, not being an heiress, otherwise than
in open church or chapel, according to the orders of the Church
of England, by a minister lawfully authorised, shall forfeit
£100. And that if she be an heiress, he shall be disabled from
having any interest in her lands or hereditaments as tenant by
the courtesy of England. And it denies to every female recusant
convict either dower or freebench in any of the freeholds or
copyholds of her husband.

By the same statute the omission of baptism at the hands
"of a lawful minister according to the laws of this realm," for
one month after the birth of the child, subjects the father, being
a Popish recusant, to the penalty of £100 for every such offence :
and should he be dead within the month, the liability falls upon
the mother.

It likewise imposes the penalty of £20 upon the personal
representatives of a Popish recusant, not being excommunicate,
or the persons concerned in the burial of such person, if the
corpse be buried elsewhere than in the church or churchyard, or
" not according to the ecclesiastical laws of this realm."

Finally, as to married women, this act provides that every
Popish recusant convict, being the widow of one not convicted
of recusancy, who does not conform to the established worship,
and receive the sacrament according to law, during one whole
year after her husband's death, shall forfeit to the Crown two-
thirds of her jointure and two-thirds of her dower during her
life, and all share in her husband's goods and chattels, and be
disabled to be his executrix and administratrix : and that if a
married woman do not conform, and receive the sacrament
according to law, within three months after conviction of Popish
recusancy, she shall be imprisoned until conformity. But if
her husband shall pay to the Crown ten pounds for every

THE PENAL LAWS. 23

month of her nonconformity, or, at his option, yield into the
King's hand a third of his lands and tenements, she may, so long
as the money is paid or the lands are retained, remain at liberty.*

First among the Disabilities which attached to recusancy
must be reckoned excommunication. The 3 Jac. 1, c. 5, and
the 1 W. & M. st. 1, c. 8, enact that every Popish recusant convict
shall stand, to all intents and purposes, disabled as a person
lawfully excommunicated : that is to say, incapable of suing, of
being a witness, surety, administrator, attorney, or procurator
for any person ; of acting as executor, or of receiving Christian
burial ; and liable, as Chief Justice Coke pointed out in a cele-
brated case,f to being dealt with, according to the rigour of the
law, by writ of excommunicato capiendo. This statute of James I.
further enacts that no Popish recusant convict shall practise the
law or physic, or exercise any public office or charge in the
commonwealth, either in person or by deputy ; and that the
husbands of Popish recusants convict shall lie under the like
disabilities unless they, their children above the age of nine
years, and their servants conform to the established religion.

By the 35 Eliz. c. 2, and the 3 Jac. 1, c. 5, every Popish
recusant convict, above the age of sixteen, must repair to his
usual abode, or if he have none, to his native place, and not
remove above five miles from thence without a written licence
from the Queen or three privy councillors, or without a special
written licence, granted under the hand and seal of four local
justices, with the assent in writing of the bishop, lord-lieutenant,
or deputy lieutenant. And twenty days after his return he
must notify it, with his true name, and present himself to the
parish minister and the town constable, who shall enter these
matters in a book to be kept for that purpose. The penalties of

* James 1., according to his own account, received a net income of
£30,000 a year from the fines of Popish recusants ('Hardwicke Papers,'
vol. i. p. 446).

f The Attorney- General v. Griffiths and others, 2 Bulst. 155. It has been
thought that the words " a person lawfully excommunicated " mean nothing
more than disabling the convict to sue, and this view is taken in Hawkins'
' Pleas of the Crown ' and Bacon's ' Abridgment.' But the better opinion
seems to be that they imposed upon Popish recusants convict all the dis-
abilities of excommunication. The point is discussed at length by Anstey,
pp. 39-43.

24 THE LAW SPECIALLY AFFECTING CATHOLICS.

not returning to such place of abode, or native place, or of
removing thence more than five miles without licence, were
forfeiture of goods and chattels, lands, tenements, and heredita-
ments, and all rents and annuities during the offender's life.
If he had not an inheritance of any kind of the clear amount of
twenty marks, nor goods and chattels above the value of £20,
and did not within three months after apprehension conform to
the Established Church, he was bound upon his corporal oath, at
the requisition of any two justices of the peace, or of the coroner
of the county, to abjure the realm for ever and to depart out of
it at once. The punishment of the convict for refusing to abjure,
or for not departing out of the realm after abjuration, or for
coming again into it, was death.

The 3 Jac. 1, c. 5, also disables every person being a Popish
recusant convict to present to any benefice, prebend or any
ecclesiastical living, or to nominate to any free school, hospital,
or donative ; or to grant the assurance of any benefice, prebend
or other ecclesiastical living ; and devolves his rights, in such
respects, upon the Universities of Oxford and Cambridge,
according to the local site of the benefice. It may here be
added that the 1 W. & M. c. 26, extends this disability to every
person who shall refuse to make the declaration against Popery,
prescribed by 30 Car. 2, st. 2, c. 1, " as fully as if such person
were a Popish recusant convict."

Further, this statute enacts that no Popish recusant convict
shall come into the court or house where the King or his heir
apparent to the Crown shall be, unless he be commanded so to
do by the King, upon pain of £100. And the 30 Car. 2, st. 2,
c. 1, enacts that every person convicted of Popish recusancy,
who shall come advisedly into or remain in the presence of the
King or Queen, or shall come into the court or house, where they,
or any of them, reside shall be disabled to hold or execute any
office or place of profit or trust, civil or military, in the realm,
or its islands or plantations, to sit or vote in either House of
Parliament, or to make a proxy in the Peers ; to sue or use any
action, bill, plaint, or information at law, or suit in equity, or to
be guardian, executor, or administrator, legatee, or donee ; and
shall forfeit for every such offence £500.

THE PENAL LAWS. 25

The same statute enacts that no Popish recusant, indicted or i
convicted of recusancy, shall remain within ten miles of London
after ten days from the indictment or conviction, under pain of
£100: that all armour, gunpowder, and munition that any
Popish recusant convict shall have in his house or elsewhere,
except such necessary weapons as may be allowed him for defence
of his person or dwelling, may be taken from him by warrant of
four justices of the peace, and kept at his cost at such place as
the justices shall appoint, and that if he hinder the delivery
thereof to the justices he shall be imprisoned for three months ;
and further that any two justices of the peace and the mayor,
bailiffs, and chief officers of cities and towns corporate may
search for Popish books and reliques in the houses and lodgings
of Popish recusants convict, and may, at their discretion, deface
or burn any altar, pix, beads, pictures, or such-like Popish
relique, or any Popish book which they may find ; and if it be a
crucifix or other relique of any price, the same must be defaced
at the General Quarter Sessions of the county, and then restored
to the owner.

It remains to speak of certain penal enactments directed
against Catholics generally, and not specially against those
whom the law qualified as traitors and recusants. The 23 Eliz.
c. 1, enacts that whoever shall say or sing Mass shall forfeit 200
marks and be committed to gaol for a year and thenceforth
until he have paid the fine; and subjects every person who
shall hear Mass to the penalty of a year's imprisonment and a
fine of 100 marks. But the sanguinary Act of the 27 Eliz.
c. 2, already spoken of, which enacted the death penalty
against Catholic priests, practically superseded this statute.
The 11 & 12 Will. 3, c. 4, "for a further remedy against the
growth of Popery, over and beyond the good laws already
made," imposes the penalty of imprisonment for life upon any
Popish bishop, priest, or Jesuit saying Mass, or exercising
any other part of a Popish bishop or priest's office within these
realms or the actual dominions thereof, unless he be an alien,
residing in a foreign ambassador's dwelling-house as chaplain,
and registered as such in the Secretary of State's office.

Catholic books and other instruments of devotion were also

26 THE LAW SPECIALLY AFFECTING CATHOLICS.

rigidly prohibited. The 13 Eliz. c. 2, enacts that if any person
shall bring into the realm any token or thing called by the
name " Agnus Dei," or any crosses, pictures, beads, or such-like
vain and superstitious things from the Bishop or See of Kome,
or from any person authorised by, or claiming authority from
him to hallow the same, and shall offer the same to any subject
of this realm to be worn and used, he, and every person who
shall receive the same, shall incur a prcemunire. And by the
3 Jac. 1, c. 5, no person shall bring from beyond the seas, nor
shall print, sell, or buy any Popish primers, ladies' psalters,
manuals, rosaries, Popish catechisms, missals, breviaries, portals,
legends and lives of saints, containing superstitious matter,
printed or written in any language whatsoever, nor any other
superstitious books, printed or written in the English tongue,
on pain of 40s. for every book, and the books to be burned.

Catholic education was entirely disallowed. The 11 & 12
Will. 3, c. 4, enacts that any Papist who shall keep school, or
assume the education, government or boarding of youth, within
the realm or its actual dominions, shall, upon conviction, be
sentenced to perpetual imprisonment. This penalty is expressed
to be " over and beyond the good laws already made : ".that is to
say, the 23 Eliz. c. 1, which forbids the keeping or maintaining
of any schoolmaster who does not repair to the Established
Church, or is not allowed by the Protestant bishop, under a
fine of £10 per month, and subjects " such schoolmaster or
teacher " to imprisonment for a year ; the 1 Jac. 1, c. 4, which
imposes a fine of 405. a day upon any one who, without special
licence from the bishop, keeps school or is a schoolmaster,
except it be in the house of some man or woman of gentle
degree not being a recusant ; and the Act of Uniformity (13 &
14 Car. 2, c. 4), which requires tutors and schoolmasters, in
private houses, besides obtaining the bishop's licence, to con-
form to the Established Church, under penalty of three months'
imprisonment for the first offence, and the like imprisonment
for every subsequent offence, and a fine of £5 to the Crown.

Nor were Catholics, thus debarred from educating their child-
ren at home in their own religion, allowed to send them for such
education abroad. The 27 Eliz. c. 2, makes punishable as a

THE PENAL LAWS. 27

prcemunire the sending of relief, directly or indirectly, to any
Jesuit college or foreign seminary, or person of or in the same ;
and the 1 Jac. 1, c. 4, enacts that any subject of the King sending
any child or other person under their government to any such
college or seminary, with intent to reside in the same, or to be
instructed, persuaded, or strengthened in the Popish religion,
shall for every such offence forfeit £100. Under this statute
the person so sent is disabled to inherit, purchase, take, or enjoy
any real or personal estate whatsover in England or its domin-
ions, and all trusts, confidences, or interests whatsoever for his
or her benefit are utterly void.

In the reign of Charles I. a further act (3 Car. 1, c. 2) was
passed on this subject. It enacts that no one shall send any
child or other person out of the realm to a foreign country, to
the intent to enter, or to be resident, or trained up in any priory,
abbey, nunnery, Popish university, college, or school, or house
of Jesuits, or priests, or private popish family, there to be
instructed, persuaded, or strengthened in the Popish religion.
It likewise forbids the sending of money or other thing for the
maintenance of any child or person so sent, or for the relief of
any priory, abbey, nunnery, college, school and religious house
soever. Conviction of either of these offences, it further pro-
vides, shall disable the party to sue at law or in equity, to be
committee of any ward, executor, administrator, or donee (by
deed) for any person, or to bear any office within the realm ;
and such convict shall forfeit all his goods and chattels ; and
during his life, or the continuance of his non-compliance, all his
lands and hereditaments, rents, annuities, office, and estates of
freehold are to be forfeited.

It should here be noted that by the 11 & 12 Will. 3, c. 4, if
any Popish parent, in order to compel his Protestant child to
change his religion, shall refuse to allow him a fitting mainte-
nance suitable to the degree and ability of such parent, and to the
age and education of such child, the Lord Chancellor shall make
order therein. And the Court of Chancery would also super-
intend the education of such Protestant child, and would impose
restrictions on the access ;and correspondence of its parents
(Blake v. Leigh, Amb. 306).

28 THE LAW SPECIALLY AFFECTING CATHOLICS.

In order effectually to exclude Catholics from the Legis-
lature, th.e 30 Car. 2, st. 2, provides that no one shall sit in
either House until he shall first take the oaths of allegiance
and supremacy (to which the 1 George 1, st. 2, c. 13, adds the
oath of abjuration), and make and subscribe a declaration, denying
transubstantiation, and asserting that the invocation and adora-
tion of the Virgin Mary, or any other saint, and the sacrifice of
the Mass, as they are now used in the Church of Kome, are
superstitious and idolatrous. This statute further provides that
every such offender shall be adjudged a Popish recusant convict
to all intents and purposes, and shall forfeit and suffer as such ;
and it subjects to all the pains, penalties, forfeitures and
disabilities of the Act, any sworn servant to the King, who
should not within the time limited by law take the appointed
oath, and should come into the presence of the King or Queen.
And the 7 & 8 Will. 3, c. 27, provides that every person who
refuses to take the oaths of allegiance and supremacy, when
lawfully tendered, shall be liable to suffer as a Popish recusant
convict ; and that no person who shall refuse the said oath shall
be admitted to give a vote at the election of any member of
Parliament.

The Corporation and Test Acts* applied of course to
Catholics as to all dissidents from the Established Church.
The last-mentioned of these enactments provides that every
person who shall be admitted into any office, civil or military,
shall within three months after his admittance receive the
sacrament of the Lord's Supper according to the usage of the
Church of England, on the Lord's Day, immediately after
divine service and sermon ; and if he shall neglect or refuse to
do so, he shall be disabled to hold such office, and the same shall
be void.

By 7 & 8 Will. 3, c. 24, the professions of counsellor-at-law,
barrister, attorney, solicitor, and notary, were closed to Catholics.

Thus were Catholics debarred from public life at home, nor
were they permitted to take service abroad. To do so without
having previously taken the oath of obedience, is by the

* 13 Car. 2, st. 2, c. 1, and 25 Car. 2, c. 2.

THE PENAL LAWS.

3 Jac. 1, c. 4, declared to be a felony. The same statute further
enacts, upon pain of felony, that no person bearing any military
office shall go out of the realm to serve any foreign prince, unless
he shall become bound, with two sureties, in the sum of £20
at least, that he will not, at any time, be reconciled to the Pope
or See of Kome,

Catholics were excluded from succession to the throne by the
1 W. & M. st. 2, c. 2, which enacts that every person who
shall be reconciled to, or shall hold communion with, the See or
Church of Kome, or shall profess the Popish religion, or shall
marry a Papist, shall be excluded from, and be for ever in-
capable to inherit or enjoy, the Crown and Government of this
realm : and in such case the people shall be absolved of their
allegiance, and the Crown shall descend to and be enjoyed by
such person, being a Protestant, as should have inherited and
enjoyed the same, in case the person so reconciled, holding
communion, or professing or marrying as aforesaid, were
naturally dead.

In the first year of William and Mary it was thought
necessary to prohibit Catholics from residing within ten miles
of London, and an Act of Parliament (1 W. & M. c. 9) was
passed empowering justices to tender to reputed Papists " the
oath appointed by law." Any one who refused it, and yet
remained within ten miles of London, was to forfeit and suffer
as a Popish recusant convict. Another Act of the same year
(1 W. & M. c. 15) provides that no suspected Papist who shall
neglect to take the oath appointed by law, when tendered to him
by two justices of the peace, and who shall not appear before
them upon notice from one authorised under their hands and
seals, shall keep any arms, ammunition, or horse above the
value of £5, in his possession, and in that of any other person
to his use (other than such as shall be allowed him by the
sessions for defence of his house and person). Any two justices
may authorise by warrant any person to search for all such
arms, ammunition, and horses in the daytime, with the assistance
of the constable or his deputy or tithing-man, and to seize them
for the King's use. And if any person shall conceal such arms,
ammunition, or horses, he shall be imprisoned for three months,

30 THE LAW SPECIALLY AFFECTING CATHOLICS.

and shall forfeit to the king treble the value of such arms,
ammunition, or horse.

A later statute of the same reign (11 & 12 Will. 3, c. 4)
imposed heavy disabilities on Catholics in respect of real
property. It provides that any person educated in the Popish
religion, or professing the same, unless within six months after
attaining the age of eighteen, he .or. she take the oaths of
allegiance and supremacy and subscribe the declaration in
30 Car. 2, st. 2, shall in respect of himself or herself only,
and not for and in respect of any of his or her heirs or posterity,
be disabled and made incapable to inherit or take by descent,
devise, or limitation, in possession, reversion, or remainder any
lands, tenements, or hereditaments ; and that until he or she do
take such oaths, and make such subscriptions, the next of kin,
being a Protestant, shall have and enjoy the said lands, &c.,
without being accountable for the profits, but only for wilful
waste. It further provides that, after April 10, 1700, every
Papist shall be disabled and made incapable to purchase either
in his or her own name, or in the name of any person or persons,
to his or her use, or in trust for him or her, any manors, lands,
profits out of lands, tenements, rents, terms, or hereditaments ;
and that all and singular estates, terms, and any other interests
or profits whatsoever out of lands to be made, suffered, or done
for the use or behoof of, or upon trust for, any such person, shall
be utterly void and of none effect. And the 3 Geo. 1, c. 28,
after enacting that sales by Papists to Protestant purchasers for
full valuable consideration shall be good, unless some person
entitled to enter by previous statute has already asserted his
claim, goes on to lay down that no manner of lands, tenements,
or hereditaments shall pass from any Papist by any deed or
will, unless such deed within six menths after the date, and
such will within six months after the death of the testator, be
enrolled in one of the King's courts of record at Westminster, or
in the county before the custos rotulorum, two justices, and the
clerk of the peace.

Finally, the 1 Geo. 1, st. 2, c. 50, provides that " all manors,
lands, tenements, rents, tithes, pensions, portions, annuities, and
all other hereditaments whatsoever, and all mortgages, securities,

THE PENAL LAWS. 31

sums of money, goods, chattels, and estates, which have been
given, granted, devised, bequeathed, or settled upon trust, or to
the intent that the same, or the profits or proceeds thereof, shall
be applied to any abbey, priory, convent, nunnery, college of
Jesuits, seminary or school for the education of youth in the
Eomish religion in Great Britain, or elsewhere, or to any other
Popish or superstitious uses, shall be forfeited to the King for
the use of the public."

Such were the laws devised to crush out the Catholic religion
in England. Montesquieu remarks that " they are so rigorous,
though not professedly of the sanguinary kind, as to do all the
hurt that can possibly be done in cold blood." " In answer to
this it may be observed," says Blackstone, " what foreigners,
who judge only from our Statute-book, are not fully apprised
of, that these laws are seldom exerted to their utmost rigour." *
No doubt this was so; or Catholicism would have dis-
appeared from the country. But however laxly administered
at certain times, or in certain cases, there these statutes were,
hanging, like the sword of Damocles, for well-nigh three
centuries, over the devoted heads of English Catholics, whose
property, whose liberty, whose lives, were at the mercy of any
common informer. We now proceed to trace briefly the suc-
cessive steps by which this penal code was removed from the
pages of the Statute Book, reserving such fragments as still
remain, to be dealt with in the next chapter under the head of
Existing Disabilities. In practice this result was effected by the
Belief Acts of 1778 and 1792, and the Emancipation Act of
1829 : but only in practice, for the relief given by these Acts was
limited to Catholics taking the prescribed Eoman Catholic Oath,
and the whole of the penal laws were left in force, at least in
theory, against Catholics who neglected to comply with this
test. It was not until the present reign that the penal laws
themselves ceased to disfigure the pages of the Statute-Book,
and that the repeal of the Eoman Catholic Oath by 34 & 35
Viet. c. 48, placed Catholics in this country in a condition of
almost complete equality with their fellow-subjects.

* 'Commentaries,' book iv. c. 4. These laws were still in force when
Blackstone wrote.

32 THE LAW SPECIALLY AFFECTING CATHOLICS.

The Act of 1778 (18 Geo. 3 c. 60) relieved Catholics taking
the prescribed oath from some of the worst provisions of the
11 & 12 Will. 3, c. 4. It repealed the sections as to appre-
hending, taking, or prosecuting Popish Bishops, Priests, and
Jesuits, and relieved both them and other Catholics from the
punishment of perpetual imprisonment for keeping a school.
It also enabled Catholics to purchase and inherit land, and
repealed the section allowing a Protestant heir to enter and
enjoy the estate of his Catholic kinsman.

These were the provisions which, when extended shortly
afterwards to Scotland, became the occasion of the Gordon
riots.

The Act of 1791 (31 Geo. 3, c. 32) was much more extensive
and far-reaching. No Catholic taking the oath, was thence-
forward to be prosecuted for being a Papist, or for being edu-
cated in the Popish religion, or for hearing or saying mass, or
for being a priest or deacon, or for entering or belonging to any
ecclesiastical order or community in the Church of Borne, or for
assisting at or performing any Catholic rites or ceremonies. To
the provisions of this Statute regarding the registration of
Catholic places of worship and of the Catholic clergy we shall
have occasion to refer in a subsequent chapter.*

Catholics were no longer to be summoned to take the oath of
Supremacy, or to be removed from London, and the legislation
of George I. requiring them to register their estates and wills
was repealed absolutely. Lastly the professions of counsellor
at law, barrister, attorney, solicitor, and notary, which had been
closed to Catholics by the 7 & 8 Will. 3, c. 24, were now again
opened to them upon taking the prescribed oath.

Such were the principal relieving clauses of the Act, which
further provided (sec. 17) that nothing in that Act contained
should make it lawful for Eoman Catholics to found, endow, or
establish any school, academy or college within the realm or its
actual dominions, and enacted that whatever uses, trusts, and
dispositions of real or personal property were therefore " deemed
superstitious or unlawful," should still continue to be so deemed
notwithstanding the Act. The effect of this section in connec-

* See p. 49.

THE PENAL LAWS. 3:3

tion with subsequent legislation will have to be considered in a
later chapter.*

We come next to the Emancipation Act (10 Geo. 4, c. 7),
which is set out fully in Appendix A. Its general effect was
to open public life to Catholics, taking the prescribed oath, to
enable them to sit in parliament, to vote at elections, and to fill
all the offices of state with a few exceptions. At the same time
it imposed certain restrictions upon them with a view of safe-
guarding the interests of Protestantism. These provisions, so
far as they are still operative, will be considered in the next
chapter.

The important Act of 2 & 3 Will. 4, c. 115, putting Catholic
charities on the same footing as those of Protestant dissenters,
will be considered in the chapter on Charitable Trusts and
Bequests.

Among the statutes which formally repealed the penal laws
the most important are 9 & 10 Viet. c. 59, and the various
Statute Law Ke vision Acts.

Finally, in 1871, the Promissory Oaths Act (34 & 35 Viet,
c. 48) abolished the invidious Eoman Catholic oath ; and, also,
as we shall see in the next chapter, removed the last trace of
those formidable tests, which had so long excluded Catholics
from all the emoluments of place and power.

* See p. 138.

34 THE LAW SPECIALLY AFFECTING CATHOLICS.

CHAPTEK II.

EXISTING DISABILITIES.

IT is proposed in this chapter to consider the existing dis-
abilities to which Catholics are subject in this country, excepting
such as restrict the full disposition of their property for religious
purposes. The latter are among the most important of all, but
they will be discussed more conveniently at a later stage in
connection with the general law relating to religious and chari-
table trusts and bequests. Excluding them for the moment,
Catholic disabilities existing or alleged to exist at the present
time may be classified under five heads.

I. Affecting the tenure of the Crown.
II. Affecting, or alleged to affect, certain high offices of State.

III. Affecting the Established Church.

IV. Affecting religious communities of men.
V. Other disabilities.

I. THE CROWN.

No member of the reigning house, who is a Catholic or has
married a Catholic, can succeed to the throne, and the Sovereign
on becoming a Catholic or marrying a Catholic thereby forfeits
the Crown. This article of the Constitution, commonly known
as the Protestant Succession, was enacted in the Bill of Eights
and confirmed by the Act of Settlement.

Section 9 of the Bill of Eights (1 W. & M. sess. 2, c. 2) is as
follows : " And whereas it hath been found by experience that it
is inconsistent with the welfare and safety of this Protestant king-
dom to be governed by a Popish Prince, or by any King or Queen
marrying a Papist, the said Lords Spiritual and Temporal and
Commons do further pray that it may be enacted that all and
every person or persons that is, are, or shall be reconciled, or shall
hold communion with the See or Church of Eome, or shall profess

EXISTING DISABILITIES. 35

the Popish religion, or shall marry a Papist, shall be excluded and
be for ever incapable to inherit, possess, or enjoy the crown and
government of this realm and Ireland, and the dominions thereunto
belonging, or any part of the same, or to have, use, or exercise any
regal power, authority, or jurisdiction within the same ; and in all
and every such case the people of these realms shall be and are
hereby absolved from their allegiance ; and the said crown and
government shall from time to time descend to, and be enjoyed
by such person or persons being Protestants as should have in-
herited and enjoyed the same, in case the said person or persons
so reconciled, holding communion, or professing, or marrying as
aforesaid, were naturally dead."

The language of the Act of Settlement (12 & 13 Will. 3, c. 2, s. 2)
conferring the succession on the descendants of the Electress
Sophia being Protestants, does not materially differ from that of
the above section. It is further enacted, s. 3 (1) : " That whoso-
ever shall hereafter come to the possession of the Crown of
England, shall join in communion with the Church of England as
by law established."

The words, " reconciled to or hold communion with the See
or Church of Eome " in the above section of the Bill of Eights
should, it appears, be construed as applying only to a religious
reconciliation and communion with the Pope, and a recognition
of his spiritual authority. In 1847 and 1848 the proposed
establishment of diplomatic relations with the Holy See was
opposed in Parliament, as being in contravention of the above
words of the Statute, and in the latter year an Act (11 & 12
Viet. c. 108*), entitled " An Act for enabling Her Majesty to
establish and maintain diplomatic relations with the Sovereign
of the Eoman States," was passed by the government of the day.
The Act recites that " doubts exist whether Her Majesty can
lawfully establish and maintain diplomatic relations with the
Sovereign of the Eoman States," but Lord Lansdowne on behalf
of the Government in the House of Lords expressly disclaimed
any belief that such doubts were well founded. The first
section provides that it shall be lawful for Her Majesty to
establish and maintain diplomatic relations, and to hold diplo-
matic intercourse with " the Sovereign of the Eoman States,"
a description which was substituted for " the Sovereign Pontiff "
while the bill was passing through the House of Lords.

* See Appendix B.

D 2

36 TEE LAW SPECIALLY AFFECTING CATHOLICS.

The second section of the Act, also introduced in the Lords,
did more to hinder, than the first to facilitate, the establishment
of such relations by providing that it should not be lawful " to
receive at the Court of London as Ambassador, Envoy Extra-
ordinary, Minister Plenipotentiary or other Diplomatic Agent
accredited by the Sovereign of the Eoman States, any person in
Holy Orders in the Church of Eome, or a Jesuit, or member of
any other religious order, community, or society of the Church
of Kome bound by monastic or religious vows." This provision
excluded all the ordinary diplomatic agents of the Holy See, and
no regular diplomatic relations were established under the
authority of the statute. The British Government continued as
before to be represented at Eome by an unofficial agent, who
was kept on for some years after the loss of the Temporal
Power, an event which, according to the opinion of Lord (then
Sir John) Coleridge, the Attorney- General in 1872,* did not
affect the power of the Crown to enter into and maintain
diplomatic relations with the Holy See.

II. CERTAIN HIGH OFFICES OF STATE.

Certain high offices have next to be dealt with, which were
not opened to Catholics by the Emancipation Act, but which
have since been materially affected by legislation abolishing
the tests which prevented Catholics from filling them.

The excepting clause of the Emancipation Act (10 Geo. 4, c. 7,
s. 12) is as follows : "Provided, also, that nothing herein contained
shall extend or be construed to extend to enable any person or
persons professing the Eoman Catholic religion to hold or exercise
the office of guardians and justices of the United Kingdom, or of
regent of the United Kingdom, under whatever name, style, or title
such office may be constituted, nor to enable any person, otherwise
than he is now by law enabled, to hold or enjoy the office of Lord
High Chancellor, Lord Keeper, Lord Commissioner of the Great
Seal of Great Britain (or Ireland), or the office of Lord-Lieutenant
of Ireland, or His Majesty's High Commissioner to the General
Assembly of the Church of Scotland."

The office of regent does not appear to stand upon a different
* Hansard, vol. 213, p. 158.

EXISTING DISABILITIES. 37

footing from the other offices mentioned in the section, but it
has been customary in Eegency Acts to make the tenure of the
regency dependent on the same conditions regarding religion as
the tenure of the Crown. The office of Lord Chancellor of
Ireland has been opened to Catholics by the Act of 1867
(30 & 31 Viet. c. 75) ; and the office of Lord High Commissioner
to the General Assembly of the Church of Scotland is one which
no Catholic would desire to fill. The practical importance of
the question is therefore confined to the offices of Lord High
Chancellor of England and Lord-Lieutenant of Ireland.

Is there at present in force any impediment to prevent a
Catholic from filling these offices ? In 1872 the present Lord
Chief Justice, then Sir John Coleridge and Attorney- General,
gave it as his opinion that there is not.

This careful and considered opinion, to which attention is
specially invited, is reprinted from Hansard* in Appendix C.
It was given in answer to a question from the late Sir Colman
O'Loghlen, who had brought in a Bill for the purpose of
opening these offices to Catholics. The opinion of the first Law
Officer of the Crown, speaking under such circumstances, is
entitled to very great weight, and it would seem that no reason
has ever been adduced for doubting the correctness of the
conclusion arrived at, except the fact mentioned in the
opinion that " a right honourable friend," not further identified,
differed on a vital point of the case. The " right honourable
friend " in question cannot have been the Solicitor- General, Sir
George Jessel, who was not then a Privy Councillor; and
the presumption is rather that this most distinguished lawyer
concurred in the view taken by his colleague. Acting on the
Attorney- General's opinion, Sir Colman O'Loghlen did not
further proceed with his Bill, and the matter may be said to
have rested there until the introduction of Mr. Gladstone's Bill
in 1891. t That Bill proceeded on the assumption that the
state of the law was doubtful, but no attempt was made on
either side to show that such doubt was well-founded, or to
refute by serious argument the opinion given by the present
Lord Chief Justice when Attorney-General.

* Hansard, vol. 211, p. 280. f Ib., vol. 349, p. 1734.

38 THE LAW SPECIALLY AFFECTING CATHOLICS.

As explained by Sir John Coleridge, the Emancipation Act as
regards these offices left things precisely as they were. Before
the passing of that Act the two great barriers that practically
excluded Catholics from public life, were the Oaths of Alle-
giance, Abjuration, and Supremacy, and the Declaration against
Transubstantiation. These tests were imposed on the holders
of all important offices, and no Catholic could conscientiously
take them. The Emancipation Act substituted a modified oath
for Catholics, and by section 1 absolutely abolished the
Declaration against Transubstantiation except as to the re-
served offices. Section 1, after reciting that

" by various Acts certain oaths and declarations, commonly called
the declaration against transubstantiation, and the declaration
against transubstantiation and the invocation of saints and the
sacrifice of the mass, as practised in the Church of Koine, are, or
may be required to be taken, made, and subscribed by the subjects
of His Majesty, as qualifications for sitting and voting in Parlia-
ment, and for the enjoyment of certain offices, franchises, and civil
rights,"

went on to enact that —

" From and after the passing of this Act all such parts of the
said Acts as require the said declarations, or either of them, to be
made or subscribed by any of His Majesty's subjects, as a qualifi-
cation for sitting and voting in Parliament, or for the exercise or
enjoyment of any office, franchise, or civil rights, be, and the same
are (save as hereinafter provided and excepted) hereby repealed."

The effect of section 12, already quoted, was to leave the
holders of the reserved offices still subject to the Declaration
which was otherwise abolished by section 1, and also to the
Oaths of Allegiance, Abjuration, and Supremacy.

The barrier of the oaths has now admittedly been removed.
In 1858 the Oaths of Allegiance, Abjuration, and Supremacy
were consolidated by 21 & 22 Viet. c. 48, but, as the con-
solidated oath retained the declaration that no foreign prince or
prelate had or ought to have any jurisdiction, ecclesiastical or
spiritual, within the realm, no Catholic could conscientiously
take it. Ten years later, in 1868, 31 & 32 Viet. c. 72 was
passed, repealing the consolidated oath, and substituting a new
form of oath, which Catholics could conscientiously take.

EXISTING DISABILITIES. 39

It is not necessary to refer in detail to the old statutes
imposing the Declaration,* the last of which were expressly
repealed by the Promissory Oaths Act, 1871 (34 & 35 Viet.
c. 48). So long as they were in force anyone, whether Catholic
or Protestant, entering on any of the reserved offices and
neglecting to make the Declaration in the prescribed form, was
liable on conviction to have his tenure of the office declared
void, to forfeit £500, and to be incapable of suing at law or in
equity, or of being a guardian or executor, or of any legacy or
deed of gift, or of filling any office for the future. The steps
by which these statutes were repealed are clearly explained in
Sir John Coleridge's opinion.

The question now appears narrowed down to this ; can
Catholics appointed to the offices of Lord Chancellor and Lord-
Lieutenant be called upon to make the Declaration against
Transubstantiation ? For many years after the passing of the
Emancipation Act, the Declaration was administered to all
holders of these offices. Complaint was frequently made that
the terms of the Declaration were offensive to the feelings of
Catholics, whose duty obliged them to assist at such ceremonies
as the swearing in of the Lord -Lieu tenant ; and to remove this
grievance, a short Act was passed in 1867 (30 & 31 Viet,
c. 62), the effect of which was to relieve Protestant holders of
the offices from the necessity of making the Declaration, whilst
leaving it to operate as a barrier of exclusion against Catholics.
Such at least would appear to be the effect of the statute,
which must be examined in detail, as it is upon its con-
struction that the whole question now at issue turns.

It is entitled —

" An Act to abolish a certain declaration, commonly called the
Declaration against Transubstantiation, the Invocation of Saints,
and the sacrifice of the Mass, as practised in the Church of Borne,
and to render it unnecessary to take, make, or subscribe the same
as a qualification for the exercise or enjoyment of any civil office,
franchise, or right."

* 25 Car. 2, c. 2, Eep. 26 & 27 Yict. c. 125 (1863) ; 30 Car. 2, st. 2, c. 2,
Eep. 29 and 30 Yict. c. 19, s. 6 (1866), and 1 Geo. 1, st. 2, c. 13, and
9 Geo. 2, c. 26 Kep. 34 & 35 Viet. c. 48 (1871).

40 THE LAW SPECIALLY AFFECTING CATHOLICS.

The preamble merely recites that the Declaration is still
required in certain cases, and that (i it is expedient to alter the
law in this respect, and to abolish the said Declaration."

Then follow the two sections of the Act : —

"1. From and after the passing of this Act all such parts of the
said Acts as require the said Declaration to be taken, made, or
subscribed by any of Her Majesty's subjects as a qualification for
the exercise or enjoyment of any civil office, franchise, or right, shall
be, and the same are, hereby repealed, and it shall not be obliga-
tory for any person to take, make, or subscribe the said declaration
as a qualification for the exercise or enjoyment of any civil office,
right, or franchise within the realm.

2. Nothing in this Act contained shall be construed to enable
any person professing the Roman Catholic religion to exercise or
enjoy any civil office, franchise, or right, for the exercise or enjoy-
ment of which, making, taking, or subscribing the declaration by
this Act abolished, is now by law a necessary qualification, or any
other civil office, franchise, or right from which he is now by law
excluded."

In the opinion of Sir John Coleridge the effect of the proviso
regarding Catholics in the second section of the Act was to
limit the operation of the first or repealing section in such a
way that the old statutes imposing the Declaration were not
repealed absolutely, but were left, in full force against Catholics
only. On this view of the Act of 1867, which best gives effect
to the intention of the legislature to repeal an unnecessary
and offensive ceremony, whilst at the same time leaving
Catholics in precisely the same position as they stood before,
Protestants could no longer be called upon to make the
Declaration, but Catholics appointed to the reserved offices
would still be liable to make the Declaration, or to incur all
the penalties provided by the old statutes for neglecting
to do so.

If this be so, Catholics continued to be debarred from filling
the reserved offices, until the Promissory Oaths Act of 1871
(34 & 35 Viet. c. 48) repealed the last of the old statutes im-
posing the Declaration (see Sir John Coleridge's opinion in
Appendix C) without any reserve, and thus removed the last
conscientious barrier in their way.

Another view is, however, mentioned by Sir John Coleridge,

EXISTING DISABILITIES. 41

as suggested by a right honourable friend, which would have
the effect of still excluding Catholics— that the first section of
the Act of 1867 repealed the old statutes absolutely, and that
the second section re-enacted them de now against Catholics,
in which case they would be still in force, as the Act of 1867
is unrepealed. Against this view it must be observed that the
Act of 1867 is a relieving not a disabling Act. It does not
purport to impose any new disability on Catholics, or to enact
anything against them as such, and no such disability can be
implied, but must be enacted clearly and expressly.

The first section does, indeed, purport to repeal all parts of
Acts imposing the Declaration, thus following the exact
wording of section 1 of the Emancipation Act quoted above,
but by a well-known rule of construction, the whole Act must
be read together ; and, therefore, the first section must be read
subject to the proviso in the second section ; and effect is best
given to the second section by interpreting it as having left the
old statutes still in force against Catholics. Again, the Act of
1867 contains no provisions as to tendering the Declaration to
Catholics appointed to the offices, such as we should expect
to find if it were itself imposing the Declaration afresh ; on the
contrary, it would leave the old Acts to fix how the Declaration
is to be made and what is to be the penalty for accepting office
without making it. This is in itself a strong indication that it was
not the intention of Parliament to go through the useless and
objectless proceeding of repealing the Declaration in one section
merely to re-enact it — not directly, but by reference — in the
next. On the contrary, and as was to be expected, the precedent
of the Emancipation Act was closely followed in further
limiting the operation of the old Acts without wholly repealing
them. The Emancipation Act (s. 1) repealed all parts of Acts
imposing the Declaration, except as regarded the reserved
offices. The Act of 1867 further repealed all such parts of Acts
imposing the Declaration, except as regarded Catholics appointed
to the reserved offices. The Act of 1871 repealed the old Acts
imposing the Declaration altogether, without any reserve, and
thus removed the last barrier excluding Catholics.

A third construction, not entertained by Sir John Cole-

42 THE LAW SPECIALLY AFFECTING CATHOLICS.

ridge, that the Act of 1867 repealed the old statutes absolutely,
and did not re-enact them against Catholics, is open to serious
objection. It is true that when the Act was passed the abju-
ration clause of the oath of 1858, affirming that no foreign
prince or potentate had or ought to have any jurisdiction, eccle-
siastical or spiritual, within this realm, was still in force, and
formed quite as effective a barrier against Catholics as the
Declaration itself, though not expressed in terms offensive to
their religious feelings. The second section of the Act of 1867
might therefore possibly be explained as having been inserted
ex abundanti cautela by the legislature to make it clear that the
effect of the Act was not to open the reserved offices to
Catholics. On this view, Catholics continued excluded until
the Act of 1868 (31 & 32 Viet. c. 78) substituted a new oath of
allegiance omitting the abjuration clause above referred to.
This construction, however, gives very little effect to the second
section of the Act of 1867. On the other hand, the view that the
Act of 1867, whilst by the first section repealing the Declaration,
by the second section imposed an absolute disability on Catholics,
independent of any oath or declaration, is open to even graver
objection. The second section only provides that nothing in
the Act shall be construed to enable a Catholic to fill any office
in regard to which the Declaration was then required, or from
which he was then by law excluded. It does not purport to
impose any new disability, and no such penal enactment can be
extracted by implication from the terms of a professedly
enabling statute. It is further to be observed that, even
prior to the passing of the Act, Catholics were not ly law
excluded from any of the offices in question. There was merely
imposed on all holders, Catholic and Protestant alike, a
declaration and an oath, which no Catholic could conscientiously
make ; and a Catholic who went through the form of making
them, however insincerely and dishonestly, would have satisfied
the statutes, just as a Protestant who omitted, though from
no conscientious objections, to do so, would have incurred all
the penalties provided against the omission.

Such a new legal disability would have been something quite
different from the conscientious barrier till then interposed

EXISTING DISABILITIES. 43

between Catholics and the reserved offices, and was in no
way called for, as, even on the view that the Act repealed the
Declaration absolutely, the terms of the oath of 1858 still
continued to exclude Catholics as effectively as the Declaration
itself had ever done.

The choice, it is submitted, must lie between the construction
adopted by Sir John Coleridge, that the Act of 1867 left
the old statutes in force, and the construction that the
legislature in repealing the old statutes intended to rely
exclusively on the abjuration clause of the oath of allegiance for
the purpose of excluding Catholics. The former construction,
as we have seen, best gives effect to the wording of the second
section of the Act, but on either view there is now no barrier
interposed between Catholics and the offices in question.

It is to be regretted that the legal aspects of the question
were completely ignored in the debate on Mr. Gladstone's Bill,
and that the attention of the House was not called to the
opinion of the present Lord Chief Justice.

III. THE ESTABLISHED CHUECH.

Catholics are prevented by various statutes from presenting
to livings of which they happen to be patrons, and as each
vacancy arises, the right of presentation is vested, but for that
occasion only, in the University of Cambridge or the University
of Oxford, according as the living is situated to the north or
to the south of the river Trent. Otherwise, the Catholic owner
of the advowson remains the legal patron.

This disability was first imposed on " Popish recusants
convict " by 3 Jac. 1, c. 5, ss. 18-21, and was extended by 1 W.
& M. c. 26 (an Act to vest in the two Universities the presen-
tation of Benefices belonging to Papists), s. 4, to all persons
refusing to make the Declaration against Transubstantiation ;
and it was further enacted by s. 4 of the same statute, that the
trustees, mortgagees, or grantees of any Popish recusant convict
should forfeit £500, if they presented without giving notice in
writing of the avoidance to the University within three months
after the avoidance.

44 THE LAW SPECIALLY AFFECTING CATHOLICS.

13 Anne, c. 13, further extended the disability to " every
Papist or person making profession of the Popish religion, and
every mortgagee, trustee, or person any ways entrusted by or
for such Papist," and imposed it in respect to " presenting,
collating, or nominating to any benefice, prebend, or ecclesias-
tical living, school, hospital, or donative." All such presenta-
tions, and everything done in pursuance of them, were rendered
void.

The above statute of Anne has been made the subject of a
recent decision in the Arches Court of Canterbury, and in the
Privy Council.* In that case a Catholic had nominated to a
Cambridge college a fit person for presentation to one of the
college livings, in pursuance of powers conferred upon him as
heir of a deceased benefactor by the college statutes. The
college presented the nominee, but the Bishop having refused to
institute him, on the ground that the nominator was a Catholic,
it was held that the nomination was bad under the above
statute of Anne. On the alleged ground that the above enact-
ment had been evaded by Catholic owners of advowsons who
transferred them without valuable. consideration to other persons,
"upon confidence only," that such persons would present,
nominate, etc., in accordance with the wishes of the grantors,
it was further provided by 11 Geo. 2, c. 17, that " all grants
made by any Papist, or by any mortgagee, or trustee on his
behalf, secret or avowed, of any advowson, right of presentation,
nomination, or donation of and to any benefice, prebend, or
ecclesiastical living, school, hospital, or donative," should be
null and void, excepting all bond fide grants, " for a full and
valuable consideration to Protestant purchasers, and only for the
benefit of such purchasers."

The Emancipation Act has certain other provisions on the
subject. Sec. 15 provides that nothing in the Act shall enable
any Catholic member of a lay body corporate "to give a vote at,
or in any manner to join in the election, presentation or
appointment, of any person to any ecclesiastical benefice what-
soever, or any office or place belonging to or connected with the
United Church of England and Ireland, or the Church of Scot-
* Boyer v. Bishop of Norwich (18f!2), p. 41.

EXISTING DISABILITIES. 45

land, being in the gift, patronage of disposal of such lay corporate
body.

Section 16 (see Appendix A) provides that the Act shall
not enable any Catholic to fill any office or dignity in the
churches of England, Ireland, and Scotland; or in any
Ecclesiastic Court, or in any Court of Appeal from such
courts ; or in any office or place in the Universities of Oxford and
Cambridge (this was repealed in 1871 by 34 & 35 Viet. c. 26),
or in the colleges of Eton, Westminster, or Winchester, or any
college or school within the realm.

Section 14 of the Belief Act of 1791 (31 Geo. 3, c. 32)
expressly provides that "no person professing the Eoman
Catholic religion shall obtain or hold the membership of any
college or school of royal foundation, or of any other endowed
college or school for the education of youths, or shall keep a
school in either of the Universities of Oxford or Cambridge.

Section 17 of the Emancipation Act provides that where the
right of presentation to any living belongs to an office in the
gift of the Crown, and the holder of the office is a Catholic,
the right of presentation for the time being shall devolve upon
and be exercised by the Archbishop of Canterbury.*

Sect. 18 provides that it shall not be lawful for any Catholic
to advise the Crown concerning the appointment or disposal of
any office or preferment in the English, Irish, or Scotch
churches. Any infringement of this section to be a high
misdemeanour punishable by a perpetual disability from filling
any office under the Crown.

Sect. 24 imposes a penalty of £100 upon any person, other
than the person authorised by law, " who shall assume, or use
the name, style or title of archbishop of any province, bishop of
any bishopric, or dean of any deanery in England or Ireland."

It is unnecessary to do more than allude to the Ecclesiastical
Titles Act (14 & 15 Viet. c. 50), which contained still more
stringent provisions against the assumption by Catholics of

* When Mr. Matthews was appointed Home Secretary in 1886 it was
arranged that the ecclesiastical patronage belonging to the Crown, but
administered by the Home Secretary, should be exercised by the First Lord
of the Treasury during Mr. Matthews's tenure of office. — Hansard, vol. 349,
p. 1747.

46 THE LAW SPECIALLY AFFECTING CATHOLICS.

ecclesiastical titles. Passed in order to satisfy the clamour
against Papal aggression excited by the restoration of the
hierarchy, its provisions remained a dead letter, and it was
repealed during Mr. Gladstone's first ministry by 34 & 35
Viet. c. 53.

IV. RELIGIOUS COMMUNITIES OF MEN.

The Emancipation Act of 1829 was not only a relieving but
also a disabling Act, and we have now to deal with the
provisions of ss. 28-38, which imposed fresh disabilities upon
religious communities of men bound by monastic or religious
vows, involving the withdrawal of the protection which had been
extended to them on the same terms as to other Catholics by the
Belief Act of 1791. The object of these clauses is set forth in
the preamble of the 28th section, which recites : —

" That Jesuits and members of other religious orders or societies
of the Church of Rome, bound by monastic or religious vows, are
resident within the United Kingdom, and it is expedient to make
provision for the gradual suppression and final prohibition of the same
therein"

It is hardly necessary to say that no steps have been taken
to give effect to these clauses, which were probably designed as
a sop to the no-Popery feelings of the opponents of the Bill ;
but as they are still allowed to remain on the statute book, and
as they have the serious effect of disabling religious orders of
men from holding property, it is necessary to deal with them.

Sect. 28 (see Appendix) requires all male regulars to be
registered within six months of the passing of the Act.

Sect. 29 forbids any male regular to come into the kingdom
after the passing of the Act, under penalty of banishment for life.

Sect. 30 excepts British subjects, who happen to be out of
the country at the date of the passing of the Act, from the last
section.

Sect. 31 empowers the Secretary of State to grant licences to
Jesuits and other male regulars to come into the United King-
dom and remain there for six months or under; any such
licensee not departing within twenty days after the expiration
of the licence to be guilty of a misdemeanour, and be banished

EXISTING DISABILITIES. 47

for life. No such licences are to be granted by a Catholic
Secretary of State.

Sect. 32 provides that a return of the licences so granted shall
be annually laid before Parliament.

The following sections prohibit the admission of new
members of religious communities of men after the passing of
the Act.

Sect. 33 enacts that any one admitting a new member of any
order, shall in England be guilty of a misdemeanour, and in Scot-
land be punished by fine and imprisonment.

Sect. 34 makes it a misdemeanour punishable by banishment
for life to be so admitted.

Sect. 35 empowers the Crown to convey out of the kingdom
any person sentenced to be banished under the Act, who does
not depart within thirty days of such sentence.

Lastly, section 36 provides that any person banished under
the Act, who is found at large in the United Kingdom without
some lawful cause, three months after sentence, shall on con-
viction be transported for life.

It is to be observed that these provisions extend only to
" Jesuits and members of other religious orders, communities, or
societies of the Church of Kome, bound by monastic or religious
vows," and therefore do not apply to Oratorians, and other con-
gregations of secular priests who are not so bound.

V. OTHER DISABILITIES.

Sect. 9 provides that no person in Holy Orders, in the Church
of Borne, shall be capable of being elected to serve Parliament
as a member of the House of Commons. This disability is
shared by clergymen of the Church of England, but not by
Dissenting Ministers.

Sect. 26 forbids any Koman Catholic ecclesiastic to " exercise
any of the rites or ceremonies of the Koman Catholic religion,
or to wear the habits of his order, save within the usual places
of worship of the Pvoman Catholic religion, or in private houses,
under a penalty of £50."

The llth section of the Belief Act of 1791 (31 Geo, 3, c. 32),

48 THE LAW SPECIALLY AFFECTING CATHOLICS.

which still remains on the pages of the statute-book — excepts
from the relief granted by that statute any priest who shall
do any of the things mentioned in the last quoted section, s. 26
of the Emancipation Act, and also any priest " who shall officiate
in any place of congregation for religious worship permitted
by that Act with a steeple and bell, or at any funeral in any
church or churchyard"

It does not, however, itself prohibit any of these things, and
as, owing to the complete repeal of the penal code, the freedom
of Catholic worship no longer depends on the relief afforded by
the Act of 1791, which left the penal statutes themselves
unrepealed, it does not appear that there is any prohibition of
bells or steeples now in force. A similar conclusion may also
be drawn from the statute of William IV., which puts Catholics,
as regards their places of worship, on the same footing as
Protestant Dissenters.*

Sect. 6 of the Burials Act,t 1880 (43 & 44 Viet. c. 41),
expressly authorises any " Christian and orderly service," at the
grave, in burials under that Act. The words " Christian ser-
vice" are defined to include every religious service used by
any church, denomination, or person professing to be Christian.^

With regard to the penalties imposed by the various sections
of the Act of 1829, it is important to notice that by s. 38 all
penalties imposed by this Act are to be recovered as a debt
due to the Crown by information filed by the Attorney-General
in England or Ireland, and by the Advocate-General in Scotland.
The effect of this section is that the penalties imposed by the
Act can only be enforced at the instance of the law officers of
the Crown.

* See below, p. 51.

f The provisions of this statute will be fully set out in the next chapter.

J There is still on the pages of the statute-book an Act, 3 & 4 Edw. 6,
c. 10, which provides that "all books called antiphons, myssales, scrayles,
pcessionalles, manuelles, legends, pyes, portuyses, prymars in Lattyn or Ing-
lishe, cowchers, journales, ordinales, or other books, or writings whatsoever
heretofore used for svice of the churche" shall be abolished, extinguished, and
forbidden for ever to be kept in this realm, and requires them to be delivered
up to the mayor, bailiff, or churchwardens, and by them to the bishop to be
burned or destroyed. The Act, perhaps, only applies to then existing books.

CHAPTEK III.

WORSHIP.

THE object of this chapter is to set forth the provisions of the
English law specially affecting the celebration of the offices of
the Catholic religion. These provisions will be considered
under the following heads : —

I. Eegistration of Catholic Places of Worship.
II. Catholic Marriages.

III. The Burial of the Dead.

IV. The Acquisition of Land for Churches and Burial Places*

I. REGISTRATION OF CATHOLIC PLACES OF WORSHIP.

It has been stated in a previous chapter * that since 1791
Catholics have been allowed to say and' hear mass without a
penalty. The Relief Act passed in that year (31 Geo. 3, c. 32)
enacts that Catholics making the declaration and taking
the oath therein prescribed,! shall not be presented, indicted,
tried, impeached, prosecuted or convicted, for hearing or saying
mass, or for being present at or performing or observing any
rite, ceremony, practice or observance of the Popish religion.
It further provides that every assembly for religious worship
allowed by this Act shall be certified to the Quarter Sessions ;
and that no person shall officiate at such assembly until his
name has been recorded by the Clerk of the Peace. Moreover,
no such place of assembly may be locked or barred during the
meeting, nor may the building in which it is held have a steeple
or bell. J

* See page 32.

f As was stated in Chapter I., p. 33, so much of this Act as relates to the
Declaration and Oath was repealed by 34 & 35 Viet. c. 48.

t As was stated in the last chapter (p. 48), it does not appear that there is
any prohibition of bells or steeples now in force.

50 THE LAW SPECIALLY AFFECTING CATHOLICS.

In 1832, it was enacted by the 2 & 3 Will. 4, c. 115, that
" from and after the passing of this Act, His Majesty's subjects,
professing the Eoman Catholic religion, in respect to their
schools, places for religious worship, education and charitable
purposes, in Great Britain, and the property held therewith and
the persons employed in or about the same shall, in respect
thereof, be subject to the same laws as the Protestant Dissenters
are subject to in England." One effect of this statute was to
bring Catholics within the scope of the 52 Geo. 3, c. 155,
which requires the place of worship of Protestant Dissenters to
be certified to the bishop of the diocese, the archdeacon of the
archdeaconry, and the Court of Quarter Sessions, and to be duly
registered in the Archidiaconal or Episcopal Court and by the
Clerk of the Peace, from whom a certificate is to be obtained,
and imposes a fine of £20 on every person who permits any
congregation to meet in any place occupied by him, until the
same shall have been so certified. The door of any such
religious assembly may not be barred nor bolted, and the
penalty for knowingly and maliciously disturbing it is a fine of
£40.*

In 1852, an alteration was made in the law relating to
certifying and registering places of worship of Protestant
Dissenters. An Act passed in that year (15 & 16 Viet. c. 36),
provides that no place of meeting of any congregation or
assembly of religious worship of Protestants dissenting from the
Church of England, shall for the future be certified to any
Bishop, Archdeacon or Justices of the Peace, and that it shall be
lawful instead to certify the same to the Kegistrar-General of

* By s. 4 of 9 & 10 Yict. c. 59 (an Act to relieve Her Majesty's subjects
from certain penalties and disabilities in regard to religious opinions) it is
provided that " from and after the commencement of this Act all laws now in
force against the wilfully and maliciously or contemptuously disquieting or
disturbing any meeting, assembly, or congregation of persons assembled for
religious worship, permitted or authorised by any former Act or Acts of
Parliament, or the disturbing, molesting, or misusing any preacher, teacher,
or person officiating at such meeting, assembly, or congregation, or any
person or persons there assembled, shall apply, respectively, to all meetings,
assemblies, or congregations whatsoever of persons lawfully assembled for
religious worship, and the preachers, teachers, or persons officiating at such
last-mentioned meetings, assemblies, or congregations, and the persons there
assembled."

WORSHIP. 51

Births, Deaths and Marriages. The liability of Catholics to
register their chapels in the way provided by the 52 Geo. 3,
c. 155, is not affected by this Act, which is expressly confined to
Protestant Dissenters. But three years later this Act was
repealed by the 18 & 19 Viet. c. 81, which provides that
every place of meeting for religious worship of Protestant
Dissenters and persons professing the Eoman Catholic religion,
may be certified in writing to the Kegistrar-General of Births,
Deaths and Marriages, and provides forms for that purpose.
We shall have to return to this Act presently. Here we may
note that there is nothing in it which relieves Catholics from
the necessity under which they lay when it was passed of
registering their places of worship. It merely enables them to
certify such places of worship to the Eegistrar- General instead
of to the Archdeacon, Bishop or Quarter Sessions.

Later in the same session of Parliament, a further Act (c. 86)
was passed placing Catholics upon exactly the same footing as
Protestant Dissenters in respect of the registration of their
places of worship. Its second section provides as follows : " So
much of an Act, passed in the second and third years of King
William IY. c. 115, as enacts that His Majesty's subjects, pro-
fessing the Eoman Catholic religion, in respect of their places of
religious worship shall be subject to the same laws as Protestant
Dissenters are subject to ... shall be read as applicable to the
laws to which Protestant Dissenters in England are liable, for
the time being, after the passing of this Act."

Such has been the legislation since 1791 regarding the
registration of Catholic places of worship. It will have been
seen that the 52 Geo. 3, c. 155, has never been expressly
repealed, and it might be contended that its provisions
regarding the registration of their places of worship still
apply to Catholics and Protestant Dissenters who do not
avail themselves of the alternative mode of registration in the
office of the Eegistrar-General, provided by the 18 & 19 Viet.
c. 81. But, as a matter of fact, those provisions have long
fallen into disuse.

The chief practical necessity * for the registration of Catholic

* We say " the chief practical necessity." There are, however, statutes which

52 TEE LAW SPECIALLY AFFECTING CATHOLICS.

places of worship arises from the Act of the 6 & 7 Will. 4,
c. 85 (The Marriage Act, 1836). Previously to the passing of that
Act in 1837, the solemnization of marriage had been governed
by the 26 Geo. 2, c. 33, which made it compulsory upon
all persons * entering into a contract of matrimony to attend
the parish church, and be there united by a clergyman of the
Established Church, according to the form prescribed in the
Book of Common Prayer. The 6 & 7 Will. 4, c. 85, authorizes
the solemnization of marriages in a place of worship not
belonging to the Church of England, if such place of worship
has been certified according to law as a place of religious
worship (s. 18.). It is, therefore, necessary to set forth the
chief provisions of the 18 & 19 Viet. c. 81, regarding such regis-
tration.!

They are as follows : Any place of Catholic worship may be
certified to the Eegistrar of Births, Deaths and Marriages in
England through the Superintendent Eegistrar of the District in
which such place is situate. The certificate must be in duplicate
upon forms provided by the Act, which may be obtained free of
charge from the Superintendent Eegistrar. It is the duty of
the Superintendent Eegistrar to send these forms to the Eegistrar-
General, who, after having duly recorded the place of worship in
a book kept for the purpose, returns one of the certificates to
the Superintendent Eegistrar, to be redelivered to the certifying
party, keeping the other with the records of the General
Eegistrar' s office. A fee of two shillings and sixpence is pay-
able to the Superintendent Eegistrar with every certificate
delivered to him for transmission to the Eegistrar-General.

When any registered place of religious worship ceases to be
used as such, the person, or one of the persons, who certified it,
or the trustees, owners, or occupiers thereof, must give notice to
the Eegistrar-General, through the Superintendent Eegistrar, of

confer certain rights and privileges upon ministers officiating in registered
places of worship. Thus the 31 & 32 Viet. c. 122, ss. 19, 20, authorises such
ministers (and none other) to inspect the creed register of the nearest work-
house, and to visit and instruct the inmates.

* Except Jews and Quakers, for whose marriages provision has since been
made by special Acts of Parliament.

f The text of the Act is given in Appendix D.

WORSHIP. 53

such disuse, in the form prescribed by the Act, which' may be
obtained, without payment, from the Superintendent Eegistrar.
And it is the duty of the Eegistrar-General when thus, or other-
wise, satisfied that any certified place of worship has wholly
ceased to be used as such, to cause the record of such certificate
to be cancelled and to give public notice thereof by advertise-
ment in some local newspaper, and in the London Gazette.

Any place of religious worship thus registered in accordance
with the provisions of 18 & 19 Viet. c. 81 may then, in the mode
prescribed by 6 & 7 Will. 4, c. 85, be registered for the solemni-
zation of marriages. The proprietor or trustee of the building *
must apply to the Superintendent Eegistrar of the District and
must deliver to him a certificate, signed in duplicate by twenty
householders, at the least, that such building has been used by
them, during one year at least, as their usual place of religious
worship, and that they are desirous that it should be registered
for the solemnization of marriages, each of which certificates
must be countersigned by the proprietor or trustee by whom it
is delivered. The Superintendent Eegistrar then sends both the
certificates to the Eegistrar-General, who registers the building
and gives notice of such registration by advertisement in the
London Gazette, and in some newspaper circulating within the
county. A fee of three pounds is payable to the Superintendent
Eegistrar, at the time of the delivery to him of the certificates.

When it is made to appear to the satisfaction of the Eegistrar-
General that a building thus registered for the solemnization of
marriage is disused for the public worship of the congregation
on whose behalf it was registered, he must cause the registry
thereof to be cancelled. And if it be proved to his satisfaction
that the same congregation use some new place of worship
instead of the disused building, he may substitute and register
the new place of worship for the disused building, although the

' The Act says " a separate building," but by 1 Viet. c. 22, s. 35, " any
building which shall have been licensed and used during one year next before
registration for public religious ^ worship as a Eoman Catholic chapel ex-
clusively, shall le taken to be a separate building, for the purpose of being
registered for the celebration of marriages ; notwithstanding, the same shall be
under the" same roof with any other building, or shall form part only of a
building,"

54 TEE LAW SPECIALLY AFFECTING CATHOLICS.

new place of worship may not have been used for that purpose
during one year, upon application being duly made to him through
the Superintendent Eegistrar. Such cancel, substitution and
registry must be made known by the Kegistrar-General to the
Superintendent Eegistrar, who is bound to make entry thereof
in his books, and to certify and publish the same as in the case
of the original registry of the disused building. For every such
substitution the Superintendent Eegistrar is entitled to receive,
at the time of the delivery of the certificate, from the party
requiring such substitution, a fee of three pounds.

•

II. CATHOLIC MARRIAGES.

Persons desiring to be married in a Catholic church must
obtain the Eegistrar's certificate ; they may also obtain from
him a licence permitting the marriage to be solemnized with
less delay, for a fee of thirty shillings and ten shillings stamp
duty.

In the first place, notice must be given in the form prescribed
in the Act by one of the parties to the Superintendent Eegistrar
of the District where they shall have dwelt for the preceding
seven days — fifteen days if the marriage is to be by licence ; or,
if they dwell in different districts, then to the Eegistrar of each
District, unless the marriage is to be by licence, when notice to
one Superintendent Eegistrar is sufficient. A copy of the
notice is entered by the Eegistrar in the Marriage Notice Book,
which is open, at all reasonable times, without fee to all persons
desirous of inspecting it. Either the original notice, or a copy
thereof, under the hand of the Superintendent Eegistrar, must
be affixed in a conspicuous place in his office. And for every
such notice he is entitled to a fee of one shilling (6 & 7 Will. 4,
c. 85, ss. 4, 5 ; and 19 & 20 Viet. c. 119. s. 3).

One whole day after the entry of this notice, if the marriage
is to be solemnized by licence, or twenty-one days after, if it is
to be solemnized without licence, the Superintendent Eegistrar,
upon the demand of the party by whom notice was given, issues
a certificate in the form provided by the Act, showing that
the requisite notice has been given, and that the issue of the

WOESHIP. 55

certificate has not been forbidden by any authorised person,
and for this certificate a fee of one shilling is payable (6 & 7
Will. 4, c. 85, s. 7 : and 19 & 20 Viet. c. 119, s. 4).

The marriage may then be celebrated in the Catholic church
duly registered for the solemnization of marriages, which is
specified in the notice, and which must, as a rule,* be in the
district of the residence of one of the parties. But it must be
celebrated in the presence of a Eegistrar of the district in which
the church is situated, and of two or more credible witnesses,
and a fee of five shillings — ten if the marriage is by licence — is
payable to the Eegistrar for his attendance (6 & 7 Will. 4, c. 85,
ss. 18, 20, 22). The Act further provides that in some part of
the ceremony, and in the presence of the Eegistrar, each of the
parties shall declare —

" I do solemnly declare that I know not of any lawful
impediment why I, A.B., may not be joined in matrimony to
C.D.," and that each of the parties shall say to the other —

" I call upon these persons, here present, to witness that I, A.B.,
do take thee, C.D., to be my lawful wedded wife [or husband]."

The celebration of the marriage must take place within three
calendar months next after the day of the entry of the notice.
Should a certificate of the marriage (" The Marriage Lines ") be
desired, it may be procured from the Eegistrar-General, or
Superintendent Eegistrar, upon payment of a fee of two shillings
and sixpence (6 & 7 Will. 4, c. 85, ss. 35, 36).

The clergy should take note that by s. 39 a priest would be
guilty of felony if he knowingly solemnized a marriage in
England in any other place than the registered building speci-
fied in the notice and certificate, or in a registered building in
the absence of a Eegistrar of the district.

It is provided by 19 & 20 Viet. c. 119, s. 12, that " if the
parties to any marriage contracted at the registry office of any
district shall desire to add the religious ceremony ordained or
used by the church or persuasion of which such parties shall be
members to the marriage so contracted, it shall be competent
for them to present themselves for that purpose to a clergyman

* For the exceptions see Geary's " Law of Marriage and Family Rela-
tions," p. 92,

56 THE LAW SPECIALLY AFFECTING CATHOLICS.

or minister of the church or persuasion of which such parties
shall be members, having given notice to such clergyman or
minister of their intention to do so ; and such clergyman or
minister, upon the production of their certificate of marriage
before the Superintendent Eegistrar, and upon the payment of
the customary fees (if any), may, if he shall see fit, in the church
or chapel whereof he is the regular minister, by himself, or by
some minister nominated by him, read or celebrate the marriage
service of the persuasion to which such minister shall belong."

Before passing away from the subject of Catholic marriages
it may be remarked that the existing state of the law is felt to
be not wholly satisfactory. No doubt it is a great improvement
upon the state of things existing before 1837. Still the trouble
and expense which a Catholic working man who wishes to be
married must incur, constitute a somewhat serious grievance.
It is not enough for him to have recourse to the priest in
whose parochial district he lives, and by whom the marriage
in church required by his conscience has to be celebrated.
He must also go to the Superintendent Eegistrar, of the district
in which he resides, and give notice of his intended marriage.
If the intended bride lives in the district of a different Super-
intendent Eegistrar, notice must be given in that district also.

The districts of the Superintendent Eegistrars are often of
great extent, and a working man has to sacrifice the whole or
the greater part of a day's work and wages in order to go to the
office of the Superintendent Eegistrar for the purpose of giving
this notice. After the lapse of twenty-one days the working
man must again apply to the Superintendent Eegistrar for a
certificate, showing that the requisite notice has been given,
and that the issue of the certificate has not been forbidden by
any authorised person. And where the parties dwell in different
districts, this certificate must be obtained from the Superinten-
dent Eegistrar of each district. Moreover, the various fees
payable, including the fee for a certificate for the marriage,
amount to eleven shillings and sixpence, when the persons
intending marriage dwell in the districts of different Superin-
tendent Eegistrars, and to nine shillings and sixpence where they
dwell in the same district. These sums are in themselves not

WORSHIP. 57

inconsiderable ; and they are payable at a moment when other
unusual expenses connected with his marriage fall upon the
working man. They are in addition to the fee usually offered
to the priest who actually celebrates the wedding in church, and
who has published the banns, instructed the married pair, and
assisted them in complying with the formalities and rules of
registration. This fee is, no doubt, purely voluntary, and is
frequently dispensed with by the clergy, but the poor are
ashamed of being married in church without offering it.

The practical result has been found by experience to be, that
poor persons frequently live in a state of concubinage, because
they are unable or unwilling to pay the double fees on their
marriage. These observations are, we believe, applicable to all
Protestant Dissenters, except Quakers, as much as to Catholics.

For the poor of the Established Church there is no necessity
to incur these double fees. They are usually married by banns,
for which fees of inconsiderable amount are payable by custom,
varying in different places. The marriage is celebrated by an
ordained clergyman without the presence of a Civil Registrar,
and without any of the applications to the Superintendent
Registrar required in the case of Catholics and other Dissenters,
by the Statutes to which we have referred. To this it may
be added that the necessity which exists for the attendance
of the Registrar at Catholic marriages, and for the declaration
above-mentioned in his presence, is in itself a grievance, as
indeed has been expressly recognised by the Royal Commis-
sion of 1865. It is the civil officer and not the priest who is
regarded by the law as the officiating minister : the priest is
ignored, and the iteration which is required before the Registrar
after the religious rite, of a statement solemnly made by the
newly-married parties in the course of it, has been described,
not without reason, as " a slur upon the ministrations of the
Catholic Church."

In Appendix E will be found a letter from the Catholic
Bishops to the Marriage Law Commission, 1867-8, in which the
subject is dealt with : and in Appendix F an extract from the
Report of the Commissioners recommending the adoption of
the course suggested by the Catholic Hierarchy.

58 THE LAW SPECIALLY AFFECTING CATHOLICS.

III. — THE BUEIAL OF THE DEAD.

The next topic claiming attention in this chapter is afforded
by certain provisions of the law regarding the burial of the
dead. Up to the year 1850 there was no special legislation
concerning burial-grounds which need be noticed, although " the
unsatisfactory state of our graveyards had long occupied the
attention of clergymen, philanthropists, and sanitary reformers." *
In that year a measure, called the Metropolitan Interments Act,
was passed. " Some defects in this enactment, rendering it
inoperative, caused its repeal by the Burials (within the Metro-
polis) Act, 1852 (15 & 16 Viet. c. 85), which latter Act laid the
foundation of the present law for the establishment and regu-
lation of burial-grounds throughout the country. Its provi-
sions were extended in the following session to England and
Wales by the 16 & 17 Viet. c. 134 (afterwards amended by the
17 & 18 Viet. c. 87), and the whole have been further amended
by the 18 & 19 Viet. c. 128, the 20 & 21 Viet. c. 81," f and
other statutes.

It is not necessary here to examine in detail these statutes.
Catholics are specially affected by these provisions in them
which relate to the division of the burial-grounds into " conse-
crated and unconsecrated parts," and to the provision of chapels
for the performance of the funeral service.

By s. 30 of 15 & 16 Viet. c. 85 (an Act to amend the laws
concerning the burial of the dead in the Metropolis) it is enacted
that when any burial-ground is provided under that Act, the
Burial Board shall set aside a portion thereof which shall not be
consecrated, and shall build thereon a suitable chapel or chapels.

This provision was extended to burials leyond the Metropolis
by 16 & 17 Viet. c. 134, which further enacts—

" Provided always that in all cases in which any Burial Board
shall provide a new burial-ground under the said Act of the last
Session of Parliament or under this Act, that new burial-ground
shall be divided into consecrated and unconsecrated parts in such
proportions, and the unconsecrated part thereof shall be allotted in

Baker on ' Burials/ intro., p. vii. f Ibid., p. viii,

WOESHIP. 59

such manner and in such portions as may be sanctioned by one of
Her Majesty's Principal Secretaries of State ; and when any Burial
Board shall by virtue of section thirty of the said Act build on
any burial-ground provided by such Board a chapel for the
performance of the Burial Service according to the rites of the
United Church of England and Ireland, they shall also build on the
portion of such ground set apart for burials otherwise than
according to the rites of the said church such chapel accommodation
for the performance of burial service by persons not being
members of the said Church as may be approved of by one of Her
Majesty's Secretaries of State."

This obligation is, however, modified and interpreted by
s. 14 -of 18 & 19 Viet. c. 128, which is as foUows :—

" And whereas doubts have arisen whether in all cases in which
any Burial Board shall build in any burial-ground provided by
such Board a Chapel for the Burial Service according to the rites
of the United Church of England and Ireland, such Burial Board is
not also bound by law to build a chapel or chapels upon the
unconsecrated part of such burial-ground for the performance of
Burial Service for persons not being Members of the said Church.
Be it enacted, that in any such case as aforesaid where it shall appear
to one of Her Majesty's Principal Secretaries of State, upon the
representation of a majority of the vestry of any parish consisting
of not less than three-fourths of the members of the same, that the
building of a chapel upon the unconsecrated part of any such
burial-ground for the use of persons not being members of the
said Church as undesirable and unnecessary, it shall be lawful for
the said Secretary of State, if he shall think fit, to signify his
opinion to that effect to the Burial Board of the parish, and the
said Burial Board shall thereupon be relieved from all obligation
to build the same. Provided always that such Secretary of State
shall not signify his opinion as aforesaid unless it be shown to his
satisfaction that notice of the intention to propose to such vestry
to make such representation was given in manner required by
law for notices of vestry meetings and of the special purposes
thereof."

It therefore appears that in every case in which a new
burial-ground is provided under these Acts, a chapel may be
built on the consecrated portion and another or others on the
unconsecrated portion of the ground ; but, where a Church of
England chapel is erected on the consecrated ground, it is
imperative that a chapel or chapels should also be built on the
unconsecrated ground, unless that be deemed unnecessary by
three-fourths of the vestry and by the Secretary of State,

60 THE LAW SPECIALLY AFFECTING CATHOLICS.

When, under this authority of the Acts which have just
been considered, a portion of the unconsecrated ground in a
cemetery has, with the sanction of the Secretary of State, been
allotted for the exclusive use of Catholics, there is no power to
invade the right so conferred.*

Before leaving the subject of the position of Catholics in
respect of Burial Boards, attention may be called to a practical
grievance occasioned by what seems to be an abuse by some
Boards of their statutory authority. Sect. 38 of the 15 & 16
Viet. c. 85,t runs as follows : —

" The general management, regulation and control of the burial
grounds provided under this Act, shall, subject to the provisions of
this Act, and the regulations to be made thereunder,:]: be vested in
and exercised by the respective Burial Boards providing the same;
provided that any question which shall arise touching the fitness
of any monumental inscription placed in any part of the conse-
crated portions of such ground shall be determined by the bishop
of the diocese."

Under the powers given by this section Burial Boards are in
the habit of making rules for the management of their grounds ;

* FROM THE SECRETARY OF STATE, HOME DEPARTMENT, TO THE SECRE-
TARY TO THE CLERK TO THE BURIAL BOARD AT KING'S LYNN.

" WHITEHALL,

" 15th April, 1892.

"SIR,

" I am directed by the Secretary of State to say that he has had under his
consideration your letter of the 7th ult., replying to the letter from this depart-
ment on the 3rd ult., on the subject of the complaint of the Eoman Catholic
priest at King's Lynn, of an invasion of his rights in the portion of the
cemetery at King's Lynn allotted for the use of Roman Catholics ; and has
inquired into the facts of the case ; and that, while recognising that there
were peculiar circumstances of the case which are not likely to occur again,
he thinks it right to express his opinion that when once an allotment has
been made under the Act 16 & 17 Viet. c. 134, to any particular religious
denomination (and he understands that in this case an allotment has been
made to the Eoman Catholics), such allotment is for the exclusive benefit of
the denomination in whose favour it is made ; and that there is no power to
invade the right so conferred ; and that it is the duty of the Board to resist
such invasion as far as they can do so. " I am, Sir,

" Your obedient servant,
" E. LEIGH PEMBERTON."

f This Act relates to burials within the metropolis : but by 16 & 17 Viet.
c. 134, s. 7, the provisions of certain portions of it — s. 38 among them — were,
extended to burials beyond the metropolis.

| By the Secretary of State under s, 45 of tfre Act,

WOESHIP. 61

and one such rule commonly is that monumental inscriptions,
if containing anything more than the name, date of death, and
age of the deceased, must be approved by the Board, from whose
decision there is no appeal, except in respect of inscriptions in
the consecrated part of the ground, as to which the Act expressly
provides an appeal to the bishop of the diocese. In a case
which came before the Catholic Union, it was proposed to erect
to the memory of a poor Catholic interred in the Catholic
portion of the cemetery of the town in which he had resided, a
simple monument, with an inscription beginning " Of your

charity pray for the soul of ." The Burial Board took

exception to the proposed inscription, upon the ground of its
asking for prayers for the soul of the deceased Catholic, and
refused to allow it unless that portion of it were omitted. This
would appear to be a very serious abuse of the powers vested
in the Board, and it is the more unwarrantable too, because
even members of the Protestant Establishment of this country
interred in their own part of the ground could not be subjected
to it. It was expressly decided by a very learned judge, Sir
Herbert Jenner, in the Court of Arches, that an inscription
requesting prayers for a deceased person was not illegal in
the churchyards of the Anglican Communion.* Catholics in
common with others pay rates, which are applied for the

* In the cause of the Office of the Judge promoted by Breeks v. Woolfrey,
Sir Herbert Jenner said, " It has not been contended, indeed it has been
admitted, that if the inscriptions be of the character attributed to them in the
citation, namely, * contrary to the articles, canons, and constitutions, and to
the doctrines and discipline of the Church of England,' no person has a right
to erect a tombstone with such an inscription impugning the doctrines of the
Church of England, and that a person so offending is liable to be punished
and the stone removed."

The inscription was, " Pray for the soul of P. Woolfrey," and the Judge
decided in a very elaborate judgment that such an inscription was not illegal,
as by no canon or authority of the Church in these realms had the practice
of praying for the dead been expressly prohibited ; and the inscription on
Bishop Barrow's tomb in the Cathedral of St. Asaph in 1680, " 0 vos tran-
seuntes in domum Domini in dotnum orationis, orate pro comervo vestro, ut
inveniat misericordiam in die Domini" was much relied upon both by the
advocate for Woolfrey and by the Judge. — (See Curteis, 'Eccles. Eep '
880.)

Prayers in the nature of prayers for the dead are used on special occasions
in the chapels of some colleges at Oxford. — ' The Ecclesiastical Law of the
Church of England,' by Sir Kobert Phillimore, D.C.L., vol. i., p. 888.

62 TEE LAW SPECIALLY AFFECTING CATHOLICS.

maintenance of the public cemeteries ; portions of those ceme-
teries are usually set aside for them ; and that in such portions
they should be restrained from the exercise of a part of their
religion, and one of its most consolatory parts, seems a serious
infringement of their religious liberty.

An Act of considerable importance to Catholics is the Burial
Laws Amendment Act, 1880 (43 & 44 Viet. c. 4). The text of
statute is given in full in Appendix G. The provisions of it
which are of most importance to Catholics will here be briefly
stated.

The object of the Act was to legalise burials in churchyards
or graveyards belonging to the Established Church, without the
rites of that church. And the word " graveyard " is denned in
sect. 1 of the Act as including any burial-ground or cemetery
vested in any burial board, or provided under any Act relating
to the burial of the dead, in which the parishioners or inhabi-
tants of any parish or ecclesiastical district have rights of
burial.

The first step to be taken by those who desire to avail them-
selves of the provisions of the Act is to give forty-eight hours'
notice to the rector, vicar, or other incumbent or, in his absence,
to the officiating minister. The notice, which must be indorsed
on the outside " Notice of Burial," is to be left at the usual
place of abode of the clergyman, or given to any one appointed
by him to receive it, save in the case of a burial-ground or

This seems the proper place to insert Counsel's Opinion given upon the
question, whether an Anglican Vicar was warranted in refusing to allow the
words "Jesus, mercy; Mary, help," to be inscribed upon the tombstone
of a Catholic buried in his churchyard.

" Unquestionably the Rector or Vicar of the parish has control over the in-
scriptions on the tombstones in his churchyard. There is an appeal from him
to the Bishop. But it is clear law that no person has a right to place on a
tombstone in a Church of England churchyard any inscription contrary to the
articles, canons, and constitutions, and to the doctrines and discipline of the
Church of England.

" I may observe that in the celebrated case of BreeJcs v. Woolfrey, decided
in the Court of Arches by Sir Herbert Jenner, it was held that an inscription
requesting prayers for the soul of a deceased person was not illegal, as the
practice of praying for the dead has not been expressly prohibited by any
canon or authority of the Church of England.

" But this decision would not cover such an inscription as * Jesus, mercy ;
Mary, help,' which, in my judgment, is quite inadmissible in a Church of
England churchyard."

WOESHIP. 63

cemetery vested in a Burial Board, when it is to be addressed
to the Church of England chaplain (if there be one), but left at
the office of the clerk of the burial board. It must be in the
following form or to the same effect.

Notice of Burial.

I, of being the relative [or friend,

or legal representative, as the case may be, describing the relation if a
relative,] having the charge of or being responsible for the burial
of A. B.y of who died at in the parish of

on the day of do hereby give you

notice that it is intended by me that the body of the said A. B.
shall be buried within the [here describe the churchyard or graveyard
in which the body is to be buried,] on the day of

at the hour of without the performance in the manner

prescribed by law of the service for the burial of the dead accord-
ing to the rites of the Church of England, and I give this notice
pursuant to the Burial Laws Amendment Act, 1880.

To the Kector [or, as the case may be,] of

The proper person to give the notice is any relative, friend,
or legal representative, having the charge of, and being respon-
sible for the funeral of the deceased.

When the burial has taken place, the person having charge of,
or being responsible for it, must on the day thereof, or the next day
thereafter, transmit to the rector, vicar, incumbent, or other offici-
ating minister in charge of the parish or district in which the
churchyard or graveyard is situate, or to which it belongs, or in
the case of any burial-ground or cemetery vested in any burial
board to the person required by law to keep the register of burials
in such burial-ground or cemetery, a certificate in the following
form or to the like effect.

I of the person having the charge

of (or being responsible for) the burial of the deceased, do hereby
certify that on the day of A. B., of

aged was buried in the churchyard [or graveyard] of the

parish [or district] of

To the Kector [or, as the case may be,] of

The clergyman is entitled to the usual fee, just as though the
burial had taken place with the service of the Church of
England.

It may be well to mention that the burial may take place

64 TEE LAW SPECIALLY AFFECTING CATHOLICS.

without any religious service, or with such Christian and
orderly religious service at the grave as the person having the
charge of, or being responsible for the burial may think fit;
and, that in case of a pauper dying in the workhouse, notice
must be given to the Master of the workhouse by the husband,
wife, or next of kin.

It should be pointed out that this Act does not give a right of
burial where no previous right existed. This is expressly provided
by sect. 9.

" Nothing in this Act shall authorize the burial of any person
in any place where such person would have had no right of
interment if this Act had not passed, or without performance of
any express condition on which, by the terms of any trust deed,
any right of interment in any burial ground vested in trustees
under such trust deed, not being the churchyard or graveyard,
or part of the churchyard or graveyard, of the parish or eccle-
siastical district in which the same is situate, may have been
granted."

The object of this section would clearly seem to be (1) To
prevent anyone from claiming a right of burial anywhere under
the Act, the provisions of which are confined to people
possessing rights of burial, but debarred from exercising them
through objections to the burial service of the Established
Church. (2) To restrict the application of the Act to " grave-
yards," as defined in sect. 1, and therefore to exempt therefrom
private cemeteries, e.g., Catholic cemeteries.

IV. THE ACQUISITION OF LAND FOE CHURCHES AND BURIAL

PLACES.

There are two Acts of Parliament (36 & 37 Viet. c. 50, and
45 & 46 Viet. c. 21) which facilitate the conveyance of land
for sites for places of religious worship, and for burial places.
We give these statutes in Appendix H.

CHAPTEK IV.

PARENTS AND GUARDIANS.

IT is proposed in this chapter to consider the rights of parents
and guardians over their children with special reference to the
question of religious education. The subject may be con-
veniently dealt with in the following order :—

I. Nature and Extent of the Father's Authority.
II. Control of the Father's Authority by the Courts.

III. Keligious Education after the Father's Death.

IV. Illegitimate Children.

V. The Appointment of Guardians.
VI. Kemedies.

I. NATURE AND EXTENT OF THE FATHER'S AUTHORITY.

By the law of England the father is primarily entitled to the
custody and control of his children, and cannot divest himself
of the right by agreement, though in some cases he may forfeit
it by his conduct. The authority of a father, said Lord O'Hagan
in In re Meade's Minors* " to guide and govern the education
of his children is a very sacred thing bestowed by the Almighty,
and to be sustained to the uttermost by human law. It is not
to be abrogated or abridged without the most coercive reason."
To such an extent was this principle carried, that a husband
who had deserted his wife, or forced her to live apart from him
by his misconduct, was allowed to inflict a further wrong by
depriving her of access to her children. This abuse, as we shall
see, has been reformed by statute, but in the exercise of his
legitimate right a father still enjoys the highest protection of
the law.

* Ir. Law Rep. 5 Eq. 103.

G6 THE LAW SPECIALLY AFFECTING CATHOLICS.

The nature and extent of the father's right to the custody and
control of his children is well illustrated in the cases of Agar-
Ellis v. Lascelks (1878),* and Agar-Mlisv. Lascelles (1883),f both
of which arose between the same parties. In the first the Court
refused to enforce an ante-nuptial agreement on the part of the
father to bring up the children as Catholics, and adopted the ex-
pression in Andrews v. Salt.% " We are of opinion that such an
agreement is not binding as a legal contract. No damages can be
recovered for a breach of it in a Court of law, and it cannot be.
enforced by a suit for specific performance in equity. We
think that a father cannot bind himself conclusively by con-
tract to exercise, at all events, in a particular way, rights which
the law gives him for the benefit of his children and not for
his own."

The second Agar-Ellis case§ dealt with the extent and
duration of a father's authority over his child. In January
1883 the eldest of the infants attained the age of sixteen, and
being a ward of Court, applied to the Court to be allowed the
free exercise of her religion as a Catholic, and to be permitted
to live with her mother. The father consented to the child's
practising her religion as a Catholic, but maintained his re-
strictions on her intercourse with her mother, on the plea that
he believed that the mother would alienate his daughter's
affections from him. The daughter applied to the Court for
leave to spend her vacation with her mother, and for her mother
to be allowed free access to her. The Court, whilst intimating
its disapproval of the father's conduct, declined to interfere
with him, and laid down that the father, when living, has the
right to the custody and tuition of his children, whilst they are
under the age of twenty-one years, and that the Court would
not deprive him of it except (1) for gross moral turpitude,
or (2) when he has by his conduct abdicated his paternal
authority, or (3) when he seeks to remove his children, being
wards of Court, out of the jurisdiction.

But while the Court will not interpose its authority to force
a father to exercise his paternal rights in any particular way,

* 10 Oh. D. 49. f 24 Oh. D. 317.

t 8 Ch. D. 636. g 24 Ch. 317.

PARENTS AND GUARDIANS. 67

on the other hand, it should seem that it will not always
interfere to assist him to override the wishes of his children,
when they have attained an age to choose for themselves.
This is certainly so with regard to custody.

Up to the age of fourteen in boys and sixteen in girls a
father may recover the custody of his children from anyone
who detains them against his will by the summary procedure
of habeas corpus, or by application to the Chancery Division. But
after the age of fourteen in boys and sixteen in girls, the children
may choose for themselves. " Although," says Cockburn, C. J.,
" a father is entitled to the custody of his children until they
attain the age of twenty-one, this Court will not grant a habeas
corpus to hand a child which is below that age over to its father,
provided it has attained an age of sufficient discretion to enable
it to exercise a wise choice for its own interests." *

On the same principle it might be thought the Court would
not force a child who has reached the years of discretion to
remain against his will in his father's religion any more than to
remain in his father's house. It is not, however, possible to lay
down any very definite rule on this subject, further than that
the Court will grant an injunction against any one attempting
to induce a ward of Court to abandon the father's religion and
adopt another.

In Todd v. Lynes, an unreported case referred to by Mr.
Simpson,f a young man of seventeen having entered a monas-
tery against his father's will, the father made him a ward of
Court, and obtained from Malins, V.C., an order to the superior
of the monastery requiring him to refrain from admitting
the ward to monastic vows, and to deliver him into his father's
custody.

In Re Gill's Minors J Lord Chancellor Ashbourne expressed
the opinion that a female ward of Court should not become a
postulant in a convent without the leave of the Court. He
further observed that there was no precedent either in England
or Ireland for such permission being either applied for or

granted.

* Reg. v. Howes, 3 E. & B. 336.

f " Law of Infants," second edition, p. 145.

t 27 Ir. L. B. Ch. 129.

F 2

68 THE LAW SPECIALLY AFFECTING CATHOLICS.

In Re Lyons* on the other hand, the Court of Chancery
refused its assistance to enable a father to recover the custody
of his daughter, a Jewish girl, who had been induced to become
a Christian, and lived in a Christian family for two years. In
this case the girl was very unwilling to return to her father,
and evidence was given that to force her to do so would be
dangerous to her health.

In the more recent case of Iredell v. fredellj the headnote is
as follows : —

" Where persons of a certain religious faith attempt to induce
a ward of Court to disobey her father, and have secret inter-
views with her to induce her to adopt their religion instead of
her father's, the Court will grant an injunction restraining
them from having any further communication with the ward."
The facts as reported are not very clear, but it would rather
seem as if some of the defendants had not come into com-
munication with the ward until after her change of religion, for
which, therefore, they could not be responsible. In such cir-
cumstances, it is submitted, an injunction ought not to go.
The right of minors to choose their own religion after arriving
at years of discretion has been repeatedly recognised in
cases arising after the father's death; and there would seem
to be no difference in principle, when the change of religion
occurs in the father's lifetime, If a minor has a right to
become a Catholic, he has a right to communicate with the
ministers of his religion, and an injunction restraining the latter
from communicating with him would operate as an infringe-
ment of his religious freedom. The proposition in the headnote
above quoted, " that the Court will restrain attempts to induce
a ward to leave the father's religion," is not open to these
objections.

II. CONTROL OF THE FATHER'S AUTHORITY BY THE COURTS.

Though the law takes so high a view of a father's rights,
there have always been cases in which the Court of Chancery,
in the exercise of its discretion, has refused to enforce them to

* 22 L. T. N. S. 770. f Only reported in 1 Times L. K. 260.

PARENTS AND GUARDIANS. 69

the manifest detriment of the child. As we have already
seen, it was laid down in the Agar-Ettis case,* that the Court
would not deprive the parent of the custody and control of
his children, except (1) For gross moral turpitude. (2) When
he has by his conduct abdicated his paternal authority, and
(3) When he seeks to remove his children, being wards of Court,
out of the jurisdiction without the permission of the Court.

But even where the case does not fall exactly under any of
these three heads, the Courts have now a very wide discretion
conferred upon them when the father has been guilty of mis-
conduct or neglect, either towards his wife or children. Ever
since the passing of Talfourd's Act, 2 & 3 Viet. c. 54, which,
however, was limited to children under the age of seven, the
Courts have been empowered to interfere on the application of
the mother, and they now possess a very full discretion in all
such cases.

The Guardianship of Infants Act, 1886, sect. 5 provides that
" The Court may, upon the application of the mother of any
infant (who may apply without next friend) make such order as
it may think fit regarding tlie custody of such infant and the
right of access thereto of either parent, having regard to the con-
duct of the parents, and to the wishes as well of the mother as of
the father" The text of the Act is given in Appendix I.

In exercising this very full discretion the Court will have
regard to three things; (1) The paternal rights; (2) The
marital duty ; and (3) the interests of the child, f The nature
of the second consideration, as explained by Pearson, J., in Ee
Elderton^ is that in deciding which parent is to have the cus-
tody of the children, the Court will look to see which of them
is responsible for breaking up the joint home, and depriving the
children of that joint care of father and mother, to which they
are entitled. Accordingly, in that case, where the husband by
his misconduct towards his wife had justified her in living
apart from him, she was awarded the custody of the children.
It would appear, however, the section does not deprive the

* 24 Ch. D. 317.

t Ee Ealliday, 17 Jur. 56 ; Smart v. Smart. Times, Aug. 1, 1892.

t 25 Ch. D. 229.

70 THE LAW SPECIALLY AFFECTING CATHOLICS.

father of his control over the religious education of his child.
There is, indeed, a dictum of Chitty, J., in Condon v. Vollum*
that the words " custody and control " in the Infants Custody
Act, 1873 (which is given in Appendix J), " are large enough
to comprise all rights which a father has over his children,
including that of directing their religious education," but section
5 of the Act of 1886 speaks only of "custody," and not of
" custody and control ; " and in Ee Scanlan (below) it was
decided that the guardianship conferred upon the mother after
the father's death by the Act of 1886, does not entitle the
mother to bring up the children in a religion differing from the
father's. The two decisions are not easily reconcileable.

Further, after the mother's death, where she has exercised
during her lifetime the power conferred upon her by section 3
of the Act, subsection 1, to nominate provisionally a guardian
to act jointly with the father, the Court, if satisfied that the
father is unfitted for any reason to act as sole guardian to his
children, may confirm the appointment of the mother's nominee
as joint guardian, and make such other order as to guardianship
as it may think fit.

This appears to be the place to deal with separation deeds
giving the mother the custody of the children. Formerly such
deeds were regarded as illegal, but the Infants Custody Act
1873 (36 & 37 Viet. c. 12, s. 2), enacted that—

" No agreement contained in any separation deed between the
father and mother of an infant, or infants, shall be held to be
invalid by reason only of its providing that the father of such
infant, or infants, shall give up the custody and control thereof to
the mother. Provided always that no Court shall enforce any
such agreement, if the Court shall be of opinion that it will not be
for the benefit of the infant, or infants, to give effect thereto."

The construction put by Chitty, J., on the words " custody and
control " in this section, has already been referred to.

In Ee Besant,^ a mother who was alleged to hold atheistical
opinions, and had published what the Court regarded as an
obscene book, was deprived of the custody of her children which
she possessed under a separation deed, on the ground that such a

* 57 L. T. 154. f 11 Ch. D. 508.

PARENTS AND GUARDIANS. 71

provision in a separation deed would only be enforced when
it was for the benefit of the children.

Under the Divorce Acts (20 & 21 Viet. c. 85, s. 35, and
22 & 23 Viet. c. 61, s. 4), the judge making a decree of divorce
or judicial separation has full discretion as to the custody and
control of the children of the marriage.

We have next to consider the grounds, enumerated above, in
which the Court, apart from statute, would always deprive
the father of the custody of his child. Gross moral turpitude
need not long detain us, The leading case is Shelley v. West-
Irooke* in which Lord Eldon refused to restore to the poet
Shelley the children by his first wife whom he had deserted
for three years. The main ground of that decision was that
the principles which Shelley openly professed and acted, led
him into conduct which the law regarded as vicious, and that he
had declared his intention of bringing up his children in similar
views.f In Re Goldswortliy \ it was held that the fact that the
father was living in adultery was not in itself sufficient to
warrant his being deprived of the custody of his child ; but it
would of course be otherwise if he sought to make the child live
under the same roof as his paramour. § In Smart v. Smart, \\ a
case coming from Canada, and not within the Guardianship of
Infants Act, 1886, the Privy Council laid down very recently
that the sufficiency of the grounds for depriving a father of the
custody of his children must be judged by the moral standard,
not of any past time, but of the present day, and they accord-
ingly, in the exercise, not of any statutory authority, but of the
original jurisdiction of the Court, refused the father's application
to recover the children from the mother, on the ground that the
separation had been brought about by his misconduct, and that
it would be for the interests of the children to remain with the
mother.

The second class of cases in which the Court was always
willing to interfere with a father's rights was where he had

* Jac. 266. f See also Thomas v. Roberts, 3 De'Gr. &"Sm. 758.

t 2 Q. B. D. 811, and Condon v. Vollum, 57 L. T. 184.
§ Re Witten, 3 Times L. R. 811 ; and W. N. 1887, 167.
|| Times, Aug. 1, 1892.

72 THE LAW SPECIALLY AFFECTING CATHOLICS.

abdicated his rights to the custody and control of his children,
and could not resume it without injuriously affecting their
interests. The leading case is Lyon v. Blenldn* where a father
had allowed his child to be brought up by a stranger in a social
position superior to his own, and then sought to assert his rights
in such a way as seriously to affect the child's interests and
prospects. In the course of his judgment Lord Eldon made the
following remarks as to the position of a father who has allowed
his children to be educated in a particular religion.

" A father may permit his children to be brought up by other
persons of a particular religious persuasion, so as to make it
difficult for the Court not to see that the happiness of the"
children must be affected if interrupted in the course of their
education in these principles, and that their father would be the
author of that suffering to them." f

It may, therefore, be concluded that a father would not be
assisted by the Court to alter the religious convictions of his
children, after he had allowed them to become fixed in another
creed.

The misconduct of either parent is now in many cases visited
by statute with the deprivation of the custody of their children.

The Guardianship of Infants Act, 1886, s. 7, provides that,
where a decree for separation or a decree nisi, or absolute for
divorce shall be pronounced, the Court may declare the person
by reason of whose misconduct such decree is made, to be a
person unfit to have the custody of the children (if any) of the
marriage, and, in such case, the parent so declared to be unfit
shall not upon the death of the other parent be entitled as of
right to the custody or guardianship of such children.

A Magistrate granting a wife a judicial separation for an
aggravated assault under 24 & 25 Yict. c. 100, s. 43, may grant
her the custody of her children under the age of ten.

And by the Criminal Law Amendment Act, 1885 (52 & 53
Viet. c. 56), parents and guardians encouraging the prostitution
of a girl under sixteen may be-deprived of her custody, and a
guardian appointed in their place.

Also any one having the control of a child convicted of an
* Jac. 245. t Ib. 260.

PARENTS AND GUARDIANS. 73

offence under the Prevention of Cruelty to and Better Protection
of Children Act, 1889, may be deprived of such custody (see the
Act in Appendix K, s. 5, &c.)

Further, under the Poor Law Act, 1889 (52 & 53 Viet. c. 56,
see Appendix L), where a child who is deserted by its parents,
or whose parent is in prison for any offence against it, is
maintained by the guardians, they may resolve that it shall be
under their control until it attains the age of sixteen, if a boy,
or eighteen, if a girl ; and they are thereupon to have all the
power of a parent over it, except that of settling its religious
persuasion. Parents may, however, be restored to their rights
in proper cases by the order of a Magistrate.

But the widest and most important restrictions on the rights
of parents are to be found in the recent Custody of Children
Act, 1891, printed in Appendix M, which restrains the right
of unfit parents who have parted with the custody of their
children to recover it.

Section 1 provides that ''where a parent applies for the
production of his child, and the Court is of opinion that the
parent has abandoned or deserted the child, or that he has other-
wise so conducted himself that the Court should refuse to enforce
his right to the custody of the child," the Court may in its
discretion decline to order it to be handed over to him.

Section 2 provides that, where at the time of such application
for its production the child is being brought up by another
person, or boarded out by the guardians, the Court, if it gives up
the child, may order the parent to repay the whole or a reason-
able part of the expenses incurred upon the child.

Section 3 provides that where (a) a father has abandoned or
deserted his child (&) or had allowed it to be brought up by
another person at that person's expense, or by the guardians,
" for such a length of time and under such circumstances as to
satisfy the Court that the parent was unmindful of his parental
duties," the Court shall not order the child to be given up,
unless the parent has satisfied the Court that " having regard to
the welfare of the child he is a fit person to be entrusted with
its custody."

There are very large limitations on the rights of parents in

74 THE LAW SPECIALLY AFFECTING CATHOLICS.

the humbler classes of the community. The next section (s. 4)
provides that no advantage shall be taken of them for purposes
of proselytizing.

Where the application of the parent is refused, and the child
is being brought up in a religion different to that in which the
parent has a legal right that he should be brought up, the Court
is to make such order as may secure that the child shall be
brought up in the parent's religion.

This, however, is " not to interfere with or affect " the power
of the Court to consult the wishes of the child, or to diminish
the right which the child now possesses to its own free choice.

III. RELIGIOUS EDUCATION AFTER THE FATHER'S DEATH.

In the absence of very special circumstances, and unless the
father has done something during his lifetime to abdicate his
rights, a surviving mother is bound to bring up her children in
the religion of the father. A few instances in which this rule
has been applied will be sufficient.

In Austin v. Austin * Lord Westbury ordered the child of a
Catholic father to be left in the custody of its Protestant mother
until attaining the age of seven, when application was to be
made to the Court to make provision for bringing it up as a
Catholic.

In Hawksworth v. HaivksworthJ the child of a Catholic
father had been brought up as a Protestant until eight and half
years of age. The Court, on being applied to, ordered her to
be brought up as a Catholic, and declined to examine the child
as to her religious opinions. In the earlier case of Stourton v.
Stowrton,% where a child had been brought up as a Protestant
by the mother up to the age of nine, the Court examined the
child, and decided that her Protestant convictions were too
fixed to be interfered with. This exercise of judicial discretion
has, however, been much commented on in later cases, and would
not now be followed. In Ee Newb&rry^ the widow of an Anglican
clergyman having joined the Plymouth Brethren, was ordered

* 34 L. J. Ch. 192-499. t L. K. 6 Oh. 539.

t 8 De G. & GK 760. § L. K. 1 Eq. 431,

PARENTS AND GTJAEDIANS.

to bring up her children as members of the Church of England,
even though one of them, aged fourteen, expressed a wish to
belong to the Plymouth Brethren.* In Witty v. Marshall^ the
Court expressed reluctance to order the son of a Catholic father,
who had been brought up as a Protestant up to the age of
fifteen, to be educated as a Catholic, and ordered that he should
be examined by the Court as to his convictions.

The position of a mother in regard to her children was greatly
altered by the Guardianship of Infants Act, 18864 By that
Act (see Appendix) the mother, if surviving, is appointed sole
guardian of her children, if the husband has not appointed any,
and joint guardian if he has. She is likewise empowered to
nominate a guardian after her death. This statute, it has been
decided in Re Scanlan$ does not affect the mother's duty to
bring up her children in the religion of the father. In that
case, where a Catholic mother was bringing up the child of a
Protestant father as Catholic, the Court appointed two Pro-
testants to act jointly with her as co-guardians, and directed
the child to be brought up as a Protestant.

Next come cases presenting much more difficulty, in which
the deceased father has been held by his conduct in his life-
time to have abdicated or waived his control of the religious
education of his children, so as to have disentitled himself
to have his dying wishes respected. The decision in these
cases is in the discretion of the Courts, and it is not easy
to deduce a uniform rule from the modes in which it has been
exercised. We need hardly observe that the more recent cases
are of the greatest authority as to the way in which the Court
will now be inclined to act.

Hill v. Hill, || decided by Wood, V.C., in 1862, has been referred
to as the case in which the power of the Court to disregard the
father's dying wishes has been carried to the furthest extent.
In that case the father was a Catholic and the mother a
Protestant. One of the children was baptized first as a Catho-
lic, and afterwards as a Protestant ; the other "was baptized as a

* See also Skinner v. Orde, L. E. 4 P. 0. 60. f 17 Ch. 68.

t 49 & 50 Viet. c. 27, printed in Appendix I. § 40 Ch. D. 280.

II 31 L. J. Ch. 505.

76 THE LAW SPECIALLY AFFECTING CATHOLICS.

Protestant only. The children were brought up as Protestants
by the mother, and nothing was ever done by the father to
educate them as Catholics down to the time of his death, when
the eldest was eight years old. He made a will appointing the
mother as one of the guardians, and directing the children to be
brought up as Catholics. He was held to have abdicated his
right to direct the religious education of his children.

The circumstances of Ee Scanlan* decided in 1888, much
resembled this case. The father, a Protestant, had allowed his
children to be brought up as Catholics, but a short time before
his death he asserted his control over them by placing them in
Protestant schools. He was held not to have abdicated his-
rights.

The important case of Andrews v. Salt^ which contains a
full exposition of the principles on which, in the opinion of the
Court of Appeal, such questions should be decided, has next to be
dealt with. In that case there was an ante-nuptial agreement
between a Catholic father and the Protestant mother that the
boys should be Catholics, and the girls Protestants. The father
was absent, and ill of consumption at the birth of the child in
question, a girl, but he wrote that a priest would call and baptize
the child as a Catholic. This was not done, but by the mother's
direction the child was baptized a Protestant. The father did
not reproach his wife for what she had done, but appointed a
Catholic guardian by his will, and ordered his children to be
brought up as Catholics. After his death, the guardian left the
child with the mother and her Protestant relations, and she
was brought up as a Protestant until the age of nine, when
the Court refused to order the mother's relations to hand her
over to the testamentary guardians to be brought up as a
Catholic.

The grounds of this important judgment may be summarised
as follows J : —

(1) That an agreement by parents of different religions to
educate children in their respective religions, " is not binding as

* 40 Ch. D. 200. f 8 Ch. 622 (1873).

t See Opinion Ee Violet Nevin, an infant, Catholic Union Q-azette, June
1891, p. 52.

PARENTS AND GUARDIANS. 77

a legal contract," and this plainly is intended to apply to a pro-
mise as to all the children, for the judgment proceeds, " a father
cannot bind himself conclusively by contract, or otherwise, to
exercise, taking events in a particular way, rights which the law
bids him for the benefit of his children, and not for his own."

(2) That if after his death it was for the child's temporal
benefit to educate it in the father's religion, that would be done,
notwithstanding his agreement with the mother for education in
her religion.

(3) That if education in the mother's religion is beneficial, it
will be ordered if the father has so acted as to have waived or
abandoned his right to have the child educated in his own religion.

(4^ That an ante-nuptial promise in favour of the mother's
religion has weight, perhaps great weight, in considering whether
there has been such waiver or abandonment.

(5) That the child in that case (whom the Court saw) had no
such distinctive leaning towards the Church of England, as to
make Catholic education wrong.

(6) That if there were no religious question, it would be better
for the child, in that case, to remain with the mother's relations.

(7) That notwithstanding such an advantage, the Court cannot re-
frain to order education in the father's religion, if he has done nothing
to forfeit or abandon his right to have his child educated in his own
religion.

(8) That the father and the uncle — the testamentary guardian
— had in that case, by their conduct lost this right.

(9) That as to the father this conduct consisted — (a) Of his
promise to his wife ; (6) Of his not telling his wife on the child's
birth (when he was ill and absent) that the child was to be bap-
tized a Catholic ; (c) Of his not reproaching her with the Pro-
testant baptism, and saying he intended a Catholic education ; and
(d) Of his concealing from her his will, which he had made at a
distance on his death bed, and two days before his death.

(10) That this conduct on the part of the testamentary guar-
dian, consisted apparently in his not having interfered before.

(11) That the result of his and the father's conduct, had been
that the child had been brought up by the Fleetcrofts (the
mother's family) as a Protestant, and could not be removed from
their custody without prejudice to her happiness, her prospects in
life, and possibly her health.

It thus appears how very small an amount of fact will
support and enforce the promise when this is for the child's
temporal advantage.

In the next case to be referred to, In re Clarke* decided by
Lord Justice Kay when Mr. Justice Kay, there was a mixed

* 21 Ch. D. 817.

78 TEE LAW SPECIALLY AFFECTING CATHOLICS.

marriage, a promise of Catholic education by a Protestant
father, everything done that could be done to support and
carry out this promise down to the father's death, when there
was a daughter aged five and a son aged three, and nothing
whatever to the contrary except an alleged statement by the
father to his mother, that if he had a son he should wish him
sent to a public school in England. The learned judge, how-
ever, expressed some hesitation about ordering the ward to be
brought up as a Catholic, and was influenced in considering
what would be for the ward's benefit by the fact that the estate
was situated in Lancashire. " A county in which/' he observed,
" there are a very large number of Eoman Catholics, even
among the upper classes, the landed gentry of the county,
and in which he will find, if he is brought up in that faith,
plenty of companions of his own station of the same faith, and
he will be by no means in the position in which a Eoman
Catholic gentleman might be in any other county in England,
but he will be in a county in which some of the "first people are
of the Eoman Catholic faith." But in spite of this dictum, the
learned judge's decision could scarcely have been different in
whatever county the ward's estate had happened to be.

A still more recent case on the subject is Ee Nevin* In
that case there was an ante-nuptial agreement on the part of
the Protestant father that the child should be brought up a
Catholic, and it was so baptized with his consent. When the
child was three years old the father died in a state of destitution

at the house of Miss M , a Protestant cousin of his wife.

The father commended his wife and child to her, and appointed
no guardian. The child shortly after, with the mother's consent,

went to live with Miss M , with whom she remained until

she was seven years old, when the mother died. After the
mother's death, her brother, a Catholic, carried off the child by
force to America, whence she was brought back by habeas
corpus. This brother applied for the guardianship of the child.

Miss M , on the other hand, was willing to support and

provide for her, if she were brought up a Protestant. The
Court refused the brother's application, and on appeal Lord

* (1891) 1 Oh. D. 299.

PARENTS AND GUARDIANS. 79

Justice Lindley laid down that the wife's Catholic relations
could have no right to have the child brought up in their
religion, and that, though the father had agreed to her being
baptized as a Catholic, there was no evidence to show that he

would wish her to be taken away from Miss M to be

brought up a Catholic. There being no father, or mother, or
guardian, the child's interests were alone to be consulted, and
it would be for her interest to be brought up a Protestant.

And Lord Justice Bowen said —

" What the Court has to look to is the benefit of the child,
and in so doing it will pay great respect to the expressed wishes
of the father ; and further, it will not treat the matter as one
of barter, and direct the child to be brought up in the religion
of one set of relations, merely because they offer a better pro-
vision for the infant. All the circumstances must be considered
from the point of view of the infant's true welfare."

Neither of these cases depart from the propositions laid down
in Andrews v. 'Salt, though perhaps the judgments show a
tendency to attach increased importance i to the temporal in-
terests of the child.

The most recent case on this subject is In re McGratli* in
which North, J., held that, although he would have been bound
to order the children to be brought up as Catholics, if applica-
tion had been made to him at the time of the father's death,
yet four years having elapsed, and the mother having died in
the meantime after becoming a Protestant, and appointing a
Protestant guardian, under all the circumstances it would not
be for the welfare of the children to interfere by removing the
Protestant guardian, and ordering the children to be brought up
Catholics. This decision was afterwards affirmed by the Court
of Appeal,f mainly, it would appear, on the ground that the
proved indifference of the father in matters of religion was such
as to lead the Court to the conclusion that he would not wish
the children's religion to be altered again. The principal facts
supporting this finding were that the father had allowed one
boy, not before the Court, to be brought up in a Protestant
orphanage, and whilst sending his other children to a Catholic

* [1892] 2 Oh. 496. t Times, Nov. 11, 1892.

80 THE LAW SPECIALLY AFFECTING CATHOLICS.

day-school, had allowed them frequently to attend a Pro-
testant chapel and a Protestant Sunday-school. The case,
Lindley, L.J., observed, was distinguishable from that of
Hawksworth v. HawkswortJi, already referred to, in which
James, L.J., said, " There is not the slightest trace of any
indifference on the part of the father to the religious education
of his child. There is nothing to shew that he would have
acquiesced in the child being brought up a Protestant, if he had
then been living."

Here the Court drew the inference that the father would not
have wished the children's religion to be altered again, and that
otherwise it would not be for their benefit to interfere with
them. " Under all the circumstances of this case," said
Lindley, L. J., delivering the judgment of the Court, " to rely
on the wishes or supposed wishes of the father as a ground for
bringing some of his children up in the Koman Catholic religion
rather than in any other is to rely on a rotten reed. . . . With
a father like the late Mr. McGrath, and with like indifference
shewn by him, it would be for the welfare of the children to
leave them alone." The case illustrates how important it is
that a father should make his wishes regarding the religious
education of his children clearly known, and abstain from
equivocal acts which may afterwards be interpreted as signs of
religious indifference.

IV. ILLEGITIMATE CHILDEEN.

An illegitimate child in the eye of the law is films nullius,
and as was recently observed by Lord Herschell iu Barnardo v.
McHugli * there was formerly a disposition on the common law
side to construe this rule rigorously. The Poor Law Act
(4 & 5 Will. 4, c. 76, s. 71) in casting upon the mother of an
illegitimate child the obligation of maintaining it until the age
of sixteen, has rendered such a view no longer tenable ; and,
indeed, in equity, the rules of which are now to prevail in dealing
with the custody and control of infants, regard was always had to
the mother, the putative father, and the relations on the mother's
* [1891] A. C. 388; Beg. v, Nash, 10 Q. B. D. 454.

PARENTS AND GUARDIANS. 81

side. It is now determined by Beg. v. Nosh, as explained by Lord
Herschell in the House of Lords, that " the desire of the mother
of an illegitimate child as to its custody is primarily to be con-
sidered, though the Court would not feel bound to accede to the
wishes of the mother if likely to prove detrimental to the child."
Accordingly, in Barnardo v. McHugh, an illegitimate child
detained in one of Dr. Barnardo's Protestant Homes, was ordered
to be delivered up to the mother, who desired that it should be
transferred to a Catholic institution of a similar kind.

After the mother's death, the wishes of the putative father will
be considered before those of the mother's relatives.*

Neither the mother nor the father of an illegitimate child has
any legal right to appoint a guardian, but the Court, in doing so,
will take account of their wishes.

V. THE APPOINTMENT OF GUARDIANS.

Although guardians have no power as such to fix the religion
in which a child should be brought up, yet their influence over
its religious education may often be very great, and the appoint-
ment of suitable guardians is the best means of insuring that a
parent's wishes shall be carried out after death. We therefore
proceed to describe the methods by which they may be ap-
pointed.

Under 12 Car. 2, c. 24, a father may appoint a guardian either
by will or deed for all his children under twenty and not
married. Since the passing of the Wills Act (1 Viet. c. 26,
s. 7), he can no longer, if under twenty-one, appoint by will,
but he may still do so by deed.

No special form of words is required for the exercise of the
power. An appointment by deed may be revoked by a sub-
sequent will. If the appointment be made by will, or codicil,
it must be made with all the due formalities. | But if the will
contain nothing more than the appointment of a guardian it is
not subject or admissible to probate.

The rights of a mother with regard to guardianship have

* EG Kerr, 12 L. B. Ir. 642. t See below.

82 THE LAW SPECIALLY AFFECTING CATHOLICS.

been greatly enlarged by the Guardianship of Infants Act, 1886
(49 & 50 Viet. c. 27), which important statute is set out in
Appendix I. Section 2 provides that after the father's death,
the mother shall be the guardian of such infant, either alone
where no guardian has been appointed by the father, or jointly
with any guardian appointed by the father.

Section 3, subs. 1, enables the mother of any infant to appoint
a guardian or guardians after the death of herself and the father ;
and where guardians are appointed by both parents, they are to
act jointly. Subsection 2 further enables the mother to appoint
some fit person provisionally to act as guardian jointly with the
father after her death, but such appointment is only to take
effect where the Court, being satisfied that the father is not fit
to be the sole guardian of his children, has confirmed the
mother's appointment.

The Court has a general power to appoint guardians, where
none have been appointed by the parents, and to remove and
replace guardians who are unfit or unwilling to act; it has,
also, power to remove a statutory guardian appointed by the
mother, if it is satisfied that it is for the welfare of the infants
to do so.*

VI. REMEDIES.
Application to the Chancery Division.

The two chief means of invoking the assistance of the Courts
with regard to infants are by habeas corpus and by application
to the Chancery Division. Courts of law, said Lord Cottenham
in In re Spence,^ " interfere for the protection of the person of
any body who is suggested to be improperly detained. This
Court (a Court of Equity) interferes for the protection of
infants qua infants, by virtue of the prerogative which belongs
to the Crown as parens patrice, and the exercise of which is
delegated to the Great Seal."

Full jurisdiction with regard to the custody and control of
infants is vested in the judges of the Chancery Division, to which
is assigned the wardship of infants and the care of infants'

* In Be McGrath, [1891] 2 Ch. 496. t 2 Ph. 247, 252.

PARENTS AND GUARDIANS. 83

estates by the Judicature Act of 1873, s. 34. This jurisdiction,
it has often been held,* does not depend on the infant being
a ward of Court, in the sense of being made a party to a suit
for the administration of his property. This is well explained
by Kay, J., in Brown v. Collins.}

(t In one sense all British subjects who are infants are wards
of Court because they are subject to that sort of parental
jurisdiction which has been intrusted to the Courts in this
country, and which has been administered continually by the
Courts of the Chancery Division. It may be exercised, as it
has been in many cases such as In re Fynn and In re Spence,
whether they have property or not, although, of course where
the infant has no property, it makes it extremely difficult to
exercise the jurisdiction at all; respecting the custody of an
infant, it has been declared again and again, and especially in
these two cases, that it is not the fact of there being property
under the control of the Court of Chancery which gives the
jurisdiction. The jurisdiction exists from the fact that the
infant is a British subject, and the Chancery Division has
always exercised that parental jurisdiction over British subjects
who are infants. But then we use the words in a special sense.
Certainly where an infant, being a British subject, is a party to
an action for administration of his property, such infant cannot
marry without the leave of the Court. Yet it would be absurd
to say that the leave of the Court is requisite for the marriage
of every infant who happens to be a British subject, whether
the Court has property of that infant to administer or not, and
in that sense certainly every subject who is an infant is not a
ward of Court in the peculiar sense in which the words are
used where the infant is party to an action in which the
property of that infant is being administered."

The Court, however, is not so ready to act in the case of
infants without property, owing to the greater difficulty of
giving effect to its decisions. The usual and convenient course
is therefore to make the infant a ward of Court in the fullest

* Wellesley v. Duke of Beaufort, 2 Russ. 221 ; Re Fynn, 2 De G. & Sm.
481 ; Re Spencer, ubi sup.
f 25 Ch. D. at p. 60.

G 2

84 THE LAW SPECIALLY AFFECTING CATHOLICS.

sense by paying in a sum of money, usually £100, though £50
would probably be sufficient, and commencing an action for its
administration. The infant will then be a ward of Court in the
full sense, and applications regarding it may be made by
motions in the action.*

Thus a father may obtain from the Chancery Division
an order for the delivery of a child detained out of his custody,
and such order will be executed by the sergeant-at-arms.t This
is an alternative method to proceeding by habeas corpus.

By section 9 of the Guardianship of Infants Act, 1886, appli-
cations under the Act are to be made in England to the High
Court of Justice, Chancery Division, or to the County Court in
which the respondents or any of them reside. Applications
made to the County Court may, however, be removed to the
High Court by order of a judge of the Chancery Division, and
an appeal will lie from the decision of the judge of a County
Court to a judge of the Chancery Division.

Where there is an action pending by reason whereof the
infant is a ward of Court, applications to the High Court under
the Act are to be by summons in the action ; otherwise by
originating summons. J

Applications to the County Courts under the Act are to be
commenced by filing a petition.

Such a petition, for the appointment of a guardian must shew
the age of the infant ; the nature and amount of the infant's
fortune and income ; what relations the infant has.§

Habeas Corpus.

It remains to consider the summary method of recovering
possession of a child detained in wrongful custody by the
writ of habeas corpus.

It is now settled practice that application for the writ shall in

* See further " Annual Practice," 0. 16, r. 1 (n), " Custody of Infants."
f G. v. L., 1 Times Rep. 589.

$ See Eules of the Supreme Court, under Guardianship of Infants Act ,
1886, in " Annual Practice," vol. 2, p. 314.
§ See County Court Rules, 1889, 0. XL VII.

PARENTS AND GUARDIANS. 85

the case of infants be made to a judge in Chambers on affidavit
setting forth the facts on which the application is grounded.*

The judge may grant the writ ex parte if the case is urgent,
but will more usually grant a summons calling on the other
side to shew cause why the writ should not issue.

If the writ be refused, there is no appeal from the refusal,
but the application may be renewed before any other judge of
the High Court.

The writ when issued orders the person to whom it is directed
to have the body of the person, said to be detained by him, in
Court on a day named, " together with the day and cause of his
being taken and detained under your custody as is said, by
whatsoever name he may be called, therein, to undergo and
receive all and singular such matters and things as the said
judge shall then and there consider of and concerning him in
this behalf, and have you there then this Our writ."

The person to whom the return is addressed is then bound to
produce the body of the child before the Court, and to make a
return shewing the circumstances under which it came into his
custody. Failure to make a proper return is punished by
attachment for contempt. The question of the position of a
party who has put it out of his power to comply with the writ
by illegally parting with the possession of the child to a
stranger, has recently been raised in the protracted litigation
arising out of Dr. Barnardo's system of managing his homes.
In one of the Barnardo cases, The Queen v. Barnardo, In re
Tye,"\ it appeared that a mother having applied to him for her
child, Dr. Barnardo, without the mother's authority, and, there-
fore, wrongfully, had handed the child over to a lady, who took
her away and left no address. A writ of habeas corpus having
been ordered to issue, Dr. Barnardo made a return to the effect
that, as before the issuing of the writ he had parted with the
custody of the child to another person who had taken her out
of the jurisdiction, it was impossible for him to obey the writ.
This was held by the Divisional Court and the Court of
Appeal to be a bad return, as the fact that the defendant had
wrongfully parted with the child was no excuse for non-com-
* See Crown Office Rules, 235-245. f 23 Q, B. D. 305,

86 TEE LAW SPECIALLY AFFECTING CATHOLICS.

pliance with the writ. An attachment for disobedience was
accordingly ordered to issue against him ; but further proceed-
ings were suspended pending the decision of the House of
Lords in another case — The Queen v. Barnardo, In re G-ossage*
There Dr. Barnardo, who had detained the child in illegal custody,
set up as a reason for the writ not issuing that he had parted with
the possession of the child before the commencement of the pro-
ceedings, and was ignorant of its whereabouts. The Court of
Appeal, however, held that the writ ought to issue, Lord Esher
on the ground that the facts did not shew that it was absolutely
impossible for him to obey it, and that having parted with the
custody of the child illegally he was still responsible for it ;
and Fry, L. J., on the ground that the defendant had parted with
the possession of the child for the purpose of evading the
process of the Court, and that if the writ issued the child might
be produced.

The case was carried to the House of Lords, and the decision
arrived at by the House f would appear to have seriously im-
paired the efficacy of the writ as a remedy in cases where a
child is being unlawfully detained out of its parents' custody
for purposes of proselytism. The House so far sustained the
decision of the Court below as to order the writ to issue ; on
the ground that it was not clearly made out that it was no
longer in Dr. Barnardo's power to produce the child, but at the
same time decided that the writ ought not to issue merely for
purposes of punishment when it appeared that it would be
-absolutely impossible for the defendant to comply with it.
" To use the writ," said Lord Herschell, " as a means of com-
pelling one who has unlawfully parted with the custody of
another person to regain that custody, or of punishing him for
having parted with it, strikes me at present as being a use of
the writ unknown to the law and not warranted by it."

The decision in Tye's case, above referred to, must therefore
be considered as overruled. Lord Watson, in concurring with
Lord Herschell, pointed out that in such cases the defendant
might under certain circumstances be attached for con-
tempt : —

* 24 Q. B. D. 283, f 8 Times L. B. 728.

PARENTS AND QUABDUNS. 87

" Where it is shown to the satisfaction of the Court that the
person charged with unlawfully detaining a child or adult had
de facto ceased to have any custody or control, I am of opinion that
the writ ought not to issue. A man who parts with the custody
of a child after he is served with the process of the Court, or who
evades service, in order that he may get rid of such custody,
commits a plain contempt for which he is answerable to the Court.
Even in that case, I doubt whether it is competent, and I do not
doubt that it is inexpedient to enforce the writ de piano. The
case ought to be dealt with in such circumstances as one of con-
tempt, and the Court has power to pronounce an order which will
compel the quondam custodian to choose between placing himself
in a position which will make him liable to the writ and bearing
the consequences of his contumacy. I think it right to add that,
in my opinion, no contempt is committed by a person who, lawfully
or unlawfully, absolutely gives up the custody of a child from the
mere apprehension that by retaining it he may become liable to a
writ of habeas corpus, and without any notice that such a proceeding
will be taken.

When a child is brought before the Court on habeas corpus,
the Court will proceed in determining its custody, on the
principles already explained in this chapter.

It should be noted here, that under 24 & 25 Yict. c. 100,
s. 56, it is a misdemeanor unlawfully either by force or fraud
to take away or detain any child under the age of fourteen,
with intent to deprive any parent, guardian, or other person
having the lawful care or charge of such child, of the possession
of such child.

88 TEE LAW SPECIALLY AFFECTING CATHOLICS,

CHAPTEK V.

PAUPERS AND CRIMINALS.

IT will be convenient to treat the subjects of Catholic Paupers
and Catholic Criminals in one chapter, assigning to each a
separate section.

I. CATHOLIC PAUPERS.

As many of the professors of the Catholic religion in this
country are in extreme indigence, and are obliged, from time
to time, to seek the means of existence in the workhouse, the
Poor Laws may be considered specially to affect Catholics.
It is, therefore, desirable to point out what provision is made
by them for securing the religious liberty of these poor people.

General Principle.

The Poor Law Amendment Act, 1834 (4 & 5 Will. 4, c. 76),
provides as follows : —

" Sect. 19. No rules, orders, or regulations of the said com-
missioners, nor any bye-laws at present in force or to be
hereafter made, shall oblige any inmate of any workhouse to
attend any religious service which may be celebrated in a mode
contrary to the religious principles of such inmate, nor shall
authorise the education of any child in such workhouse in any
religious creed other than that professed by the parents or
surviving parent of such child, and to which such parents or
parent shall object, or, in the case of an orphan, to which the
godfather or godmother of such orphan shall object. Provided,
also, that it shall and may be lawful for any licensed minister
of the religious persuasion of any inmate of such workhouse,
at all times in the day, on the request of such inmate, to

PAUPERS AND CRIMINALS. 89

visit such workhouse for the purpose of affording religious
assistance to such inmate, and also for the purpose of instructing
his child or children in the principles of their religion."

Creed Eegister.

In every workhouse a Creed Eegister is kept ; and it is the
duty of the Master, upon the admission of any inmate, to
inquire into his religious creed and to enter the same in the
register. This is provided for by sec. 16 of 31 & 32 Viet.
c. 122 (an Act to make further provision for the relief of the
poor in England and Wales). The section is as follows : —

" The officer for the time being acting as the master of a work-
house, or as the master or superintendent of a district or other
pauper school, shall keep a register of the religious creeds of the
pauper inmates of such workhouse or school, separate from all
other registers, in such form and with such particulars as shall
be prescribed by the Poor-law Board,* by an order Tinder their
seal ; and shall, as regards every inmate of such workhouse or
school, at the date to be fixed by such order, and subsequently upon
the admission of every inmate therein, make due inquiiy into the
religious creed of such inmate, and enter such religious creed in
such register."

Provisions as to the religious creed of pauper children are
contained in the seventeenth section of the Act : —

" In regard to any child in the workhouse or school under the age
of twelve years, whether either of its parents be in the workhouse
or not, or whether it be an orphan or deserted child, the master or
superintendent shall enter in such register, as the religious creed
of such child, the religious creed of the father, if the master or
superintendent know or can ascertain the same by reasonable
inquiry, or if the same cannot be so ascertained, the creed of the
mother of such child, if the same be known to said master or
superintendent, or can be by him in like manner ascertained ;
and the creed of an illegitimate child under the said age shall
be deemed to be that of its mother, when that can be ascertained."

An entry once made in the Creed Eegister cannot be altered
save by direction of the Local Government Board. This is
expressly enacted in sec. 18.

* For " Poor Law Board," now read " Local Government Board."

90 TEE LAW SPECIALLY AFFECTING CATHOLICS.

" If any question shall arise as to the correctness of any entry in
such register, the Poor-law Board may, if they think fit, inquire
into the circumstances of the case, and determine such question by
directing such entry to remain or to be amended, according to their
judgment."

Sec. 19 requires that the Creed Kegister shall be open to the
inspection of ratepayers and of ministers of registered places
of religious worship nearest to any workhouse or school.

" Every minister of any denomination officiating in the church,
chapel, or other registered place of religious worship of such
denomination which shall be nearest to any workhouse or school,
or any ratepayer of any parish in the Union, shall be allowed to
inspect the register which contains the entry of the religious creed
of the inmates, at any time of any day except Sunday, between the
hours of ten before noon and four after noon."

Ministers of Religion may Visit and Instruct Paupers.

Sec. 20 authorises such minister to visit and instruct
inmates of his creed subject to regulations approved of or
ordered by the Local Government Board.

" Such minister may, in accordance with such regulations as the
said Board shall approve of or by their order prescribe, visit and
instruct any inmate of such workhouse or school entered in such
register as belonging to the same religious creed as such minister
belongs to, unless such inmate, being above the age of fourteen,
and after having been visited at least once by such minister, shall
object to be instructed by him."

Paupers at Liberty to Attend their own Place of Worship.

By sec. 21 inmates for whom no religious service of their own
creed is provided in the workhouse, may, subject to regulations
approved of or ordered by the Local Government Board, attend
their own proper places of worship.

" Every inmate for whom a religious service according to his
own creed shall not be provided in the workhouse, shall be
permitted, subject to regulations to be approved of or ordered by
the Poor-law Board, to attend, at such times as the said Board
shall allow, some place of worship of his own denomination within
a convenient distance of the said workhouse, if there be such in
the opinion of the Board. Provided that the Guardians may, for
abuse of such permission previously granted, or on some other

PAUPERS AND CRIMINALS. 91

special ground, refuse permission to any particular inmate, and
shall in such case cause an entry of such refusal, and the grounds
thereof, to be made in their minutes."

The Religion of Workhouse Children.

Sec. 22 provides safeguards for the religious creed of work-
house children : —

" No child, being an inmate of a workhouse or such school as
aforesaid, who shall be regularly visited by a minister of his own
religious creed for the purpose of religious instruction, shall, if the
parents or surviving parent of such child, or in case of orphans or
deserted children, if such minister make request in writing to that
effect, be instructed in any other religious creed than that entered
in such register as aforesaid, except any child above the age of
twelve years who shall desire to receive instruction in some other
creed, or to attend the service of any other religious creed, and
who shall be considered by the Poor-law Board to be competent
to exercise a judgment upon the subject."

It has been held by the Local Government Board that, in
view of this section, Catholic pauper children cannot be required
and ought not to be allowed, to attend a domestic religious
service in the workhouse, consisting of Protestant hymns,
prayers and Bible-reading.*

Catholic Eeligious Instructors.

It was held in The Queen v. Haselhurst f that under the General
Order of the Local Government Board of 19th August, 1867, a

* This was expressly laid down by the Local Government Board in 1879.
" Articles 114, 124, of the General Consolidated Order," the Board said,
" must be taken in connection with the provisions of the statutes relating to
the religious instruction of workhouse inmates who do not belong to the
Established Church. It appears to the Board, for example, that the reading
of prayers, in pursuance of Art. 124, is a religious service within the meaning
of 4 & 5 Will. 4, c. 76, s. 19,- and 31 & 32 Viet. c. 122, s. 22, and, therefore,
having regard to the latter enactment, that children who are not entered in
the Creed Register as members of the Church of England cannot lawfully be
required, or even permitted to attend the prayers in question, if their parents,
or, in the case of orphan and destitute children, the minister of their own
creed, who regularly visits them, objects to their doing so. As regards the
instruction of the children in the principles of the Christian religion, as pre-
scribed by Art. 114, the statutes above referred to virtually prohibit children
from being instructed in any other religious creed than their own."

t L. R. 13 Q. B. D. 253 ; 53 L. J. M. C. 127 ; 51 L. T. (N.S.) 95.

92 TEE LAW SPECIALLY AFFECTING CATHOLICS.

board of guardians may employ a Catholic Eeligious Instructor
in their workhouse upon such terms and conditions as shall
appear to them suitable. Stephen, J., in his judgment, made the

following remarks : —

•

" The Order on which this matter turns, is the Order to the Poor-
law Guardians dated in 1867, , and the Order says that * the
Guardians may employ such persons as they shall deem requisite
in or about the workhouse or workhouse premises, or on the land
occupied for the employment of the pauper inmates of the work-
house, or otherwise, in or about the relief of the indoor poor,
upon such terms and conditions as shall appear to them to be
suitable.'

" Article 3 says that except so much thereof as relates to the
quarterly or other periodical payments of the officers, it is not to
apply to the clerk of the Guardians, or to the chaplain, or to certain
other persons. Now the question is whether that authorizes the
appointment of a Roman Catholic clergyman who is not called a
chaplain, and who has not the specific duties of a chaplain, but
who does many things which would naturally be done by a chap-
lain ; whether that authorizes the appointment of a Roman
Catholic chaplain for that purpose. And I must say it appears to
me clear that it does. There is no restriction to the persons who
are to be employed, and although, no doubt, the greatest promin-
ence in the drift of these articles is given to persons in a very
inferior condition to chaplains, the words are wide enough to
include a chaplain, and I am inclined to think the intention was
they should include chaplains, — and I use the word chaplain
because it is the plainest word to use, — clergymen employed upon
religious duties. ... I may call them Nonconformist chaplains,
chaplains other than the chaplain who is a member of the Church
of England as by law established."

It may be observed that there is no statute, or order of the
Local Government Board, expressly conferring upon a priest
attending a workhouse or other Poor Law institution, a right to
distribute Catholic prayer-books, and books of religious in-
struction, among those to whom he ministers. But such
distribution would seem to form a proper adjunct to his minis-
trations.*

* At p. 131 of Glen's Poor Law Orders will be found a brief account of the
case : — " The Queen v. The Guardians of St. Lukes, Chelsea," which was
settled by an agreement between the parties — the Rev. Edward Bagshawe,
and the Guardians — as to the terms upon which Father Bagshawe should be
permitted to visit the workhouse. One of the terms of agreement was, that
the Catholic inmates might be supplied with certain religious books therein
specified, and with any others to be approved by the Guardians,

PAUPERS AND CRIMINALS. 93

The Workhouse Chapel.

It has been held by the Local Government Board that the
workhouse chapel may lawfully be used for Catholic services
with the consent of the Guardians.*

Catholic Chaplains in Lunatic Asylums.

It should be noted that s. 276 of the Lunacy Act, 1890,
authorizes the committee of a county lunatic asylum to
appoint a minister of any religion to attend the patients of
the religious persuasion to which the minister belongs ; and
to allow him such remuneration for his services as they may
think fit.

Burial of Paupers.

The burial of paupers is regulated by the 7 & 8 Viet. c. 101,
s. 31. As a general rule a pauper should be buried in the
churchyard, or in a consecrated (Church of England) burial-
ground of the parish where he last resided, but the burial in
such churchyard or consecrated burial-ground may be dispensed
with by desire of the deceased, or husband, wife or next of kin,
in which case the guardians may, apparently, authorize the
burial anywhere at their discretion. There is no provision of

* LETTER FROM THE LOCAL GOVERNMENT BOARD TO THE GUARDIANS

OF THE POOR AT DERBY.
"LOCAL GOVERNMENT BOARD, WHITEHALL,

" 1th November, 1884.
" SIR,

" I am directed by the Local Government Board to advert to your letter of
the 16th September last, in which you inquire whether the Guardians of the
Derby Union can lawfully allow Eoman Catholic services to be held in the
workhouse chapel ; and in reply, to state generally, that it is competent to
the Guardians, if they think fit, to permit services to be held in the work-
house by Koman Catholic as well as Nonconformist clergy, and that the
Board are not aware of any legal impediment to the use of the chapel at the
workhouse for such a purpose, including the celebration of the Mass. The
services should, however, be held at such times as will not interfere with the
discipline of the workhouse, nor with the ministrations of the appointed
Chaplain. I am directed to add that the workhouse chapel could not be
legally used for the purpose referred to without the consent of the Guardians.

" I am, &c.,

" C. N. DALTON, Assistant Secretary."

94 THE LAW SPECIALLY AFFECTING CATHOLICS.

the law requiring the Master of a workhouse to give notice for
the death of a pauper to any minister of the religious per-
suasion to which the pauper belonged. When a pauper is
buried in a Catholic burying-ground the Guardians may make
a reasonable payment for the grave, and may pay a reasonable
fee to the officiating priest.*

Transfer of Catholic Pauper Children from the Workhouse
Schools to Schools of their own Religion.

So much as to the provisions made for the practice of their
religion by Catholic paupers in the workhouse. We now come
to the subject of the transfer of Catholic pauper children from
the workhouse to schools of their own religion. This subject
is one of very great practical importance.

The " Act to provide for the education and maintenance of
pauper children in certain schools and institutions " (25 & 26
Viet., c. 43) provides "that the Guardians of any Union or
parish may send any poor child to any school certified as here-
inafter mentioned, and supported wholly or partially by volun-

* Extract from a letter addressed by the Local Government Board on the
26th December, 1889, to the Kev. A. H. Hazeland, The Presbytery, Lutter-
worth.

" With regard to the question asked in your letter, the Board direct me to
state, that having regard to the 7 & 8 Viet. c. 101, s. 31, and the 28 & 29 Yict.
c. 79, s. 10, it appears to them that when an inmate of a workhouse is buried
by the Guardians, the proper place for the interment is, unless the deceased
person, or the husband or wife, or next-of-kin of such person has otherwise
desired, the churchyard or other consecrated burial-ground of the parish in
which the pauper last resided prior to his removal to the workhouse, and that
you are not empowered to claim to bury a Eoman Catholic inmate of the
workhouse in the burial-ground attached to the Eoman Catholic Chapel at
Lutterworth, in the absence of the expression of any wish on the part of the
deceased person, or of the husband or wife, or next-of-kin of such person.

" As regards burial fees, the Board direct me to state that where an inmate
of the workhouse is buried in the burial-ground of the Roman Catholic Chapel
in pursuance of a wish of the kind above referred to, it seems to them that it
is competent for the Guardians to make a reasonable payment for the ground,
and that where the service is conducted by you, whether in the churchyard
of the parish in which the deceased last resided prior to his removal to the
workhouse, or in the Roman Catholic burial-ground, the Guardians may pay
you a reasonable sum for your services, and charge the same as part of the
expenses of the burial. The amount, however, of any such payment is not
fixed by law, and is a matter for arrangement with the Guardians."

PAUPERS AND CRIMINALS. 95

tary subscriptions, the managers of which shall be willing to
receive such child, and may pay out of the funds in their
possession the expenses incurred in the maintenance, clothing,
and education of such child therein during the time such child
shall remain at such school (not exceeding the total sum which
would have been charged for the maintenance of such child if
relieved in the workhouse during the same period),* and in the
conveyance of such child to and from the same, and, in case of
death, the expenses of his or her burial." (Sec. 1.)

It will be observed that such school must be " certified." The
certificate is obtained from the Local Government Board (sec. 2),
and may at any time be withdrawn by the Board if they are
dissatisfied with the condition or management of the school.
The following form may be used in applying for a certificate : —

TO THE SECRETARY TO THE LOCAL GOVERNMENT BOARD,

WHITEHALL, S.W.
SiR,

We, being the f of a School % supported

wholly or partially by voluntary subscriptions, beg to request that
the Local Government Board will, under the second section of the
above Act, cause an examination to be made into the condition of
the above-mentioned school, and should the result of such examin-
ation appear to them satisfactory, will certify such School as fitted
for the reception of such children or persons as may be sent there

* The Act of the 45 & 46 Viet. c. 58, provides that " the Guardians of any
Union who send any pauper child to a school certified under the Act of the
25th and 26th years of the reign of Her present Majesty, chapter 43, may pay
the reasonable expenses incurred in the maintenance, clothing, and education
of such child whilst in such school, to an amount not exceeding such rate of
payment as may be sanctioned by the Local Government Board for pauper
children sent to such school, anything contained in the said Act to the con-
trary notwithstanding." (Sec. 13.) And the Local Government Board, in a
memorandum addressed in May, 1882, to the Clerks to the Guardians through-
out the country, remarks : — " It will be observed that the Board's consent
will not be required to the sum to be paid for an individual child, but that
the sum is not in any case to exceed the rate sanctioned by them in respect
of the school. The Board will give consideration to any application which
may be made to them by the managers of a certified school to sanction a rate
of payment for their school ; and the amount to be paid in any particular case
will then be a matter for arrangement between the Guardians and the
managers, provided that it does not exceed the rate approved by the Board."

t Insert '« managers," or " major part of the managers," as the case may be.

J Give the name, address, and object of the school.

96 THE LAW SPECIALLY AFFECTING CATHOLICS.

by the Guardians of Unions or separate parishes in pursuance of
the said Act. We remain, sir,

Your obedient servants,

Applications for transfer of a child must be addressed to the
Guardians of the Union in the workhouse of which the child is.
It may be couched in the following terms : —

To the Board of Guardians of the . I, the under-

signed, hereby apply to the Board of Guardians to order that
, a pauper child, aged years, not belonging

to the Established Church, but to the Roman Catholic religion, now
relieved in the workhouse school of the in the county of

, shall, if they think fit, be sent to the school established at
for the reception, maintenance, and education of children
of the religion to which such child belongs, and which school has
been duly certified by the Local Government Board under the
Statute of the 25 and 26 Viet. c. 43.

Signed this day of at , in the

parish of , in the county of . (Signature or

mark of applicant) . (Description of applicant)

(Place of abode) ' . Witness . (Name)

(Description) . (Place of abode)

In case Guardians decline to accede to the application for the
transfer of a Catholic child to a certified school of its own
religion, the Local Government Board have the power, under
the 29 & 30 Viet. c. 113, s. 14, to order such transfer. The
following is the section by which this power is conferred : —

" That if the parent, step-parent, nearest adult relative, or next-
of-kin of any child not belonging to the Established Church,
relieved in a workhouse or in a district school, or in case there
should be no parent, step-parent, nearest adult relative, or next-of-
kin, then the god-parent of such child, make application to the
said Board ("the Local Government Board] in such behalf, the
Board may, if they think fit, order that such child shall be sent to
some school established for the reception, maintenance, and educa-
tion of children of the religion to which such child shall be proved
to belong, and duly certified by the Poor-law Board under the
statute of 'the 25th & 26th Viet. c. 43; and the Guardians of
the Union or parish to which such child shall be chargeable shall,
according to the terms of such order, cause the child to be
conveyed to such school, and pay the costs and charges of the
maintenance, lodging, clothing, and education of the said child
therein, and all the provisions of the said statute shall thenceforth
apply to the said child."

PAUPERS AND CRIMINALS. 97

An application to the Local Government Board under this
section may be made in this form, if the applicant is a relative
or god-parent : —

TO THE LOCAL GOVERNMENT BOARD, WHITEHALL, S.W.

I, the undersigned, being the [and nearest adult

relative, or next-of-kin] of a child aged years,

not belonging to the Established Church, but to the Eoman
Catholic religion, now relieved in the workhouse school of the
parish of [or] in the workhouse school of the

Union, in the county of , apply to the Local Government

Board to order that such child shall, if they think fit, be sent to
the school established at for the reception, maintenance,

and education of the children of the religion to which such child
belongs, and which school has been duly certified by the Local
Government Board under the Statute of the 25 and 26 Viet,
c. 43.

I offer the accompanying documents and testimonials in proof of
my being such of the said child, and that such child

belongs to the said Eoman Catholic religion.

Signed" this day of 188 at

in the parish of in the county of . Signature

or mark of applicant . Description of applicant

Place of abode of applicant . Made in the presence of

. Name of witness . Description of witness

. Place of abode of witness

* I the undersigned, residing at in the parish of

in the county of , do solemnly and sincerely declare

that , and I make this solemn declaration conscientiously

believing the same to be true, and by the virtue of the provisions
of an Act made and passed in the sixth year of the reign of his
late Majesty King William the Fourth intituled " An Act to
repeal an Act of the present Session of Parliament intituled an Act
for the more effectual abolition of Oaths and Affirmations taken
and made in various Departments of the State, and to substitute
Declarations in lieu thereof, and for the more entire suppression
of voluntary and extra-judicial Oaths and Affidavits, and to make
other provisions for the abolition of unnecessary Oaths."
Declared at this day before me

In case the applicant is not a relative or god-parent, the

* This declaration must be signed in all cases either by a police, or county,
or borough magistrate, or by a commissioner appointed to receive oaths and
declarations.

98 THE LAW SPECIALLY AFFECTING CATHOLICS.

following form should be used, the solemn declaration appended
to the foregoing form being added to it : —

TO THE LOCAL GOVERNMENT BOARD, WHITEHALL, S.W.

I, the undersigned, of (place of residence) in the county of
(state profession, or other description), hereby apply to
the Local Government Board to order that , an orphan,

(or illegitimate or deserted) child, aged years, not belong-

ing to the Established Church, but to the Roman Catholic religion,
now relieved in the workhouse school of the parish of
(or in the workhouse school of the Union), in the county

of , shall, if they think fit, be sent to the school established

at for the reception, maintenance, and education of children

of the religion to which the said child belongs, and which school
has been duly certified by the Local Government Board under the
Statute of the 25 & 26 Viet. c. 43.

I offer the accompanying documents in proof that such child
belongs to the said Koman Catholic religion.

Signed this of , at , in the

parish of , in the county of

(Signature, &c., as before.)

The following are the documents required by the Local
Government Board when application is made to them for the
removal of Catholic children to a certified school : —

In the case of Legitimate Children who are neither Deserted nor

Orphans.

1st. Baptismal certificate of the child.

2nd. Form of application to the Local Government Board, signed
by the father. If the father is dead, then — 1st. Baptismal certifi-
cate of the child. 2nd. Proof that the father was a Catholic.
Such proof may be afforded either by the certificate of his baptism
or of his marriage in a Catholic church, or by " declaration " by
the mother or other person who knew him to be a Catholic. 3rd.
Certificate or "declaration" of his burial or death. 4th. Form of
application to the Poor-law Board, signed by the mother.

In the case of Orphan Legitimate Children.

1st. Baptismal certificate of the child.

2nd. Proof that the father was a Catholic, either by the
certificate of his baptism or of his marriage in a Catholic church,
or by "declaration" by some person who knew him to be a
Catholic.

PAUPERS AND CRIMINALS. 99

3rd. Proof of the father's death or burial.

4th. Proof of the mother's death or burial.

5th. Application to the Local Government Board, signed by
some relative, next-of-kin, or god-parent, or, in default of these, by
some other adult person. With this application should be en-
closed an explanation of the reason why some relative, next-of-kin,
or god-parent does not apply.

In the case of Deserted Legitimate Children.*

1st. Baptismal certificate of the child.

2nd. Proof of father's religion, by certificate of baptism or
marriage in a Catholic church, or by tc declaration " signed by a
magistrate.

3rd. Proof that the child is a deserted child ; which should bo
furnished by a " declaration " containing the date and circum-
stances of the desertion, made by some person who is able to testify
to the facts.

4th. Form of application to the Local Government Board, signed
by some relative, next-of-kin, or god-parent.

5th. Proof by certificate or declaration that the person making
application is such relative or god-parent.

If some other person, in default of a near relative or god-parent,
make the application, then an explanation is required why some
relative or god-parent does not apply. In such a case, a state-
ment that they were unwilling to sign the application would be
accepted.

In the case of Illegitimate Children.^

1st. Baptismal certificate of the child.

2nd. Form of application, signed by the mother.

If the mother is dead, then — 1st. Baptismal certificate of the
child. 2nd. Proof of the death or burial of the mother. 3rd.
Proof of the mother's religion. 4th. As the child has no legal
relative after the death of the mother, an application signed by the
god-parent. In default of a god-parent, the application may be
signed by any other adult person, and should be accompanied by an
explanation that the god-parent is dead, or cannot be found, or is
unwilling to sign the application.

The following sections of the Act should be noted : —

3. If the Poor Law Board should be of opinion that any person is
aggrieved by any child being so sent or kept at such school as

* By the 31 & 32 Viet. c. 122, s. 23, the Statutes of the 25 &26 Viet. c. 43,
and 29 & 30 Viet. c. 113, are extended to deserted and illegitimate children,
f See preceding note.

H 2

100 THE LAW SPECIALLY AFFECTING CATHOLICS.

aforesaid, the Board may order any such child to be removed, and
the guardians shall forthwith cause such child to be removed from
the school, and every engagement previously entered into for the
payment of the charges of such child shall thereupon cease, and
become void for the future.

4. Every school wherein any such child shall be received shall
be open to the visitation and inspection of any inspector appointed
by the Poor Law Board, and he shall be empowered to make any
examination into the state and management of the same which he
shall deem requisite, and the condition and treatment of the said
children therein, and shall make his report thereon to the said
Board ; and the guardians by whom any child may have been sent
to any such school as aforesaid may from time to time appoint any
one of their body to visit and inspect such school, and such school
shall at all reasonable times be open to such visitation or
inspection.

5. The guardians may at any time, at their discretion, and shall,
upon the requisition of the managers of the school, or upon the
withdrawal of the certificate, as herein provided, cause any such
child to be removed from any such school, and brought back to
their parish or union.

6. No child shall be sent to such school unless he or she be an
orphan, or deserted by his or her parents or surviving parent, or
be one whose parents or surviving parent shall consent to the
sending of such child to the said school.

7. Nothing herein contained shall enable the guardians to keep any
child in any school against the will of such child, if above the age
of fourteen, or of the parents or surviving parent of such child,
whatever be the age of the child.

9. No child shall be sent under this Act to any school which is
conducted on the principles of a religious denomination to which
such child does not belong.

10. The several words used in this Act shall be construed as in
the Act of the fourth and fifth years of William the Fourth,
chapter 76 : and the word " school" shall extend to any institution
established for the instruction of blind, deaf, dumb, lame, de-
formed or idiotic persons, but shall not apply to any certified
reformatory school.

Deaf and Dumb Pauper Children.
The 31 and 32 Viet. c. 122, s. 42, provides :—

The guardians of any union or parish may, with the approval of
the Poor-La w Board, send any poor deaf and dumb or blind child
to any school fitted for the reception of such child, though such
school shall not have been certified under the provisions of the
Act of the twenty-fifth and twenty-sixth years of Victoria, chapter
forty-three.

PAUPERS AND CRIMINALS. 101

Boarding out of Pauper Children.

The boarding out of pauper children is regulated by two
general orders of the Local Government Board, entitled respec-
tively, " The Boarding Out Order, 1889," and "The Boarding
of Children in Unions Order, 1889." Both these orders provide
that " in no case shall a child be boarded with a foster-parent
of a religious creed different from that to which the child
belongs ; " and that " before receiving any child to be boarded
with him, the foster-parent shall sign an undertaking that he
will take care that the child shall attend duly at church or
chapel, according to the religious creed to which the child
belongs." The orders further provide that " the child's creed
shall be ascertained from the Creed Kegister, if it be entered
therein."

II. CATHOLIC CKIMINALS.

The Religious Eights of Catholic Prisoners.

The religious rights of Catholic prisoners are secured by two
Acts of Parliament, viz. : the Prison Ministers Act, 1863, and
the Prison Act, 1865. We give the principal part of the first-
mentioned statute.

Section 3 provides for the appointment of additional ministers
to prisons.

3. Where the number of prisoners confined in any prison to which
this Act applies, and belonging to some church or religious
persuasion differing, if in England, from the Church of England,
and if in Scotland, from the Church of Scotland, is so great as, in
the opinion of the Justices, County Board, or other persons
having the appointment of chaplain in the said prison, to require
the ministrations of a minister of their own church or persuasion,
the said Justices, County Board, or other persons may appoint a
minister of such last-mentioned church or persuasion to attend at
the said prison on the prisoners of his own church or persuasion,
and they may, if they think fit, award to him a reasonable sum as
a recompense for his services, such sum to be deemed a part of
the expenses of the prison to which he is appointed, and to be
paid out of the funds legally applicable to the payment of suoh
expenses.

102 THE LAW SPECIALLY AFFECTING CATHOLICS.

The section goes on to lay down regulations as to the
admission of ministers : —

The Visiting Justices of any prison may, if they think fit,
without a special request being made by, but not against the
will of, any prisoner of a church or religious persuasion
differing from that of the Established Church, permit a minister
of the church or persuasion to which such prisoner belongs (if no
appointment of such a minister has been made under this Act) to
visit such prisoner at proper and reasonable times, under such
restrictions imposed by them as may guard against the intro-
duction of improper persons, and may prevent improper communi-
cations ; provided that any prisoner shall, on request, be allowed,
subject to the rules of the gaol, to attend the chapel or to be
visited by the chaplain of the gaol. Every minister appointed
or permitted to visit prisoners under this Act shall hold his
appointment or permission to visit during the pleasure of the
authority by whom he was appointed or permitted to visit, and
shall conform in all respects to the regulations of the prison at
which he attends. No minister shall be appointed under this Act
for any prison in which there is not a chaplain of the Established
Church.

Section 4 requires the registration of the religion of
prisoners : —

4. The keeper or other person performing the duties of keeper
of a prison on receiving into his custody any prisoner shall enter
his name in a book to be provided for the purpose, with the
addition of the church or religious persuasion to which the
prisoner shall declare himself to belong, and the said keeper or
other person shall from time to time give to any minister
appointed or permitted to visit prisoners in the prison a list of
the prisoners so declared to belong to the church or persuasion of
such minister, and no such minister shall be permitted to attend
or visit any prisoner belonging to any religious persuasion
differing from that to which such minister belongs.

Section 5 enacts that so much of section 30 of 4 Geo. IV.
as provides for visits of chaplains shall not apply to prisoners
visited by other ministers : —

5. So much of the thirtieth section of the said Act passed in
the fourth year of His late Majesty King George the Fourth,
chapter sixty-four, as provides " that the chaplain shall fre-
quently visit every room and cell in the prison occupied by
prisoners, and shall direct such books to be distributed and read,

PAUPERS AND CRIMINALS. 103

and such lessons to be tanght, in such prison, as he may deem
proper for the religious and moral instruction of the prisoners
therein, and that he shall visit those who are in solitary confine-
ment," shall not apply to any prisoner who is attended or visited
by a minister of a church or persuasion differing from the Church
of England, except when the visits of any such minister shall
have been discontinued for the period of fourteen days ; and no
prisoner belonging to any church or religious persuasion shall be
compelled to attend any religious service held or performed by
any chaplain, minister, or religious instructor of a church or
religious persuasion to which the said prisoner does not belong.

By Regulation 46, in Schedule I. of the Prison Act, 1865, it is
provided that " no prisoner shall be compelled to attend any
religious service held or performed, or any religious instruction
given by the chaplain, minister or religious instructor of a church
or persuasion to which the prisoner does not belong." And the
next regulation of the Act enacts, " If any prisoner is of a
religious persuasion differing from that of the Established
Church, and no minister has been appointed to attend at the
prison on the prisoners of that persuasion, the Visiting Justices
shall permit a minister of such persuasion to be approved by
them to visit such prisoner at proper and reasonable times
under such restrictions as may be imposed by the Visiting
Justices to guard against the introduction of improper persons
and prevent improper communications, unless such prisoner
expressly objects to see such minister."

Appointment and Remuneration of Catholic Ministers to Prisons.

Catholic ministers to -prisons are appointed by the Home
Secretary. Their remuneration is regulated by a scale given in
the Report — which we print in Appendix N — of the Select
Committee of the House of Commons on Prisons and Prison
Ministers Acts (1870).

Juvenile Offenders,

The commitment of offenders to and their status at a
certified reformatory school is regulated by the following
sections of the Reformatory Schools Act, 1866 : —

104 THE LAW SPECIALLY AFFECTING CATHOLICS.

14. Whenever any offender who, in the judgment of the Court,
justices, or magistrate before whom he is charged, is under the
age of sixteen years, is convicted on indictment or in a summary
manner, of an offence punishable with penal servitude or im-
prisonment, and is sentenced to be imprisoned for the term of ten
days or a longer term, the Court, justices, or magistrate may also
sentence him to be sent, at the expiration of his period of
imprisonment, to a certified reformatory school, and to be there
detained for a period of not less than two years and not more than
five years :

Provided always, that a youthful offender under the age of ten
years shall not be so directed to be sent to a reformatory school
unless he has been previously charged with some crime or offence
punishable with penal servitude or imprisonment, or is sentenced
in England by a judge of assize or court of general or quarter
sessions, or in Scotland by a circuit court of justiciary or
sheriff.

The particular school to which the youthful offender is to be
sent may be named either at the time of his sentence being
passed, or within seven days thereafter, by the Court, justices, or
magistrate who sentenced him, or in default thereof at any time
before the expiration of his imprisonment by any visiting justice
of the prison to which he is committed.

In choosing a certified reformatory school, the Court, justices,
magistrate, or visiting justice shall endeavour to ascertain the
religious persuasion to which the youthful offender belongs, and,
so far as is possible, a selection shall be made of a school con-
ducted in accordance with the religious persuasion to which the
youthful offender appears to the Court, justices, magistrate, or
visiting justice to belong, which persuasion shall be specified by
the Court, justices, magistrate, or visiting justice.

It shall be lawful, upon the representation of the parent, or in
the case of an orphan then of the guardian or nearest adult
relative, of any offender detained in any such school, for a
minister of the religious persuasion of such offender, at certain
fixed hours of the day, which shall be fixed by the Secretary of
State for the purpose, to visit such school for the purpose of
affording religious assistance to such offender, and also for the
purpose of instructing such offender in the principles of his
religion.

15. The gaoler of every prison having in his custody any
youthful offender sentenced to be sent to a reformatory school,
shall, at the appointed time, deliver such offender into the custody
of the superintendent or other person in charge of the school in
which he is to be detained, together with the warrant or other
document in pursuance of which the offender was imprisoned and
is sent to such school.

The possession of the warrant or other document in pursuance
of which a youthful offender is sent to a certified reformatory

PAUPERS AND CRIMINALS. 105

school shall be a sufficient authority for his detention in such
school.

16. The parent, step-parent, or guardian, or if there be no
parent, step-parent or guardian, then the god-parent or nearest
adult relative of any youthful offender sent, or about to be sent to
a certified reformatory school which is not conducted in accordance
with the religious persuasion to which the offender belongs, may
apply to the Court by whom such offender was sentenced to be
sent to a reformatory school, or to the visiting justices of the
prison to which he was committed by that Court, or to the
justices or magistrate by whom he was sentenced to be sent to a
reformatory school (or justices or a magistrate having the like
jurisdiction), to send or to remove such offender to a certified
reformatory school conducted in accordance with the offender's
religious persuasion, and the Court, visiting justices, justices, or
magistrate (as the case may be) shall, upon proof of such
offender's religious persuasion, comply with the request of the
applicant provided, —

First, that the application be made before the offender has been
sent to a certified reformatory school, or within thirty days after
his arrival at such a school ;

Secondly, that the applicant show to the satisfaction of the
Court, visiting justices, justices, or magistrate that the managers
of the school named by him are willing to receive the offender.

106 THE LAW SPECIALLY AFFECTING CATHOLICS.

CHAPTER VI.

SCHOOLS.

THE Annual Code issued by the Education Department under
statutory authority sets forth as clearly and concisely as may be
the existing system of public elementary education in force in
this country, and no useful purpose would be served by en-
deavouring to epitomise a body of rules with which every one
responsible for the management of a Catholic school in receipt
of State aid, must necessarily be familiar. But the subject
is one of almost unequalled importance for Catholics at large,
and it may therefore be well to sketch briefly the rise of the
present system, to note its most salient features and the points
at which Catholic interests are especially affected. There are
several things, too, with regard to industrial schools, which fall
clearly within the scope of this Manual.

Until within the last sixty years, the work of public elementary
education was purely voluntary. The system of annual grants
dates from the year 1833, when £20,000 was voted, in aid of
the erection of schools under the supervision of the two leading
Protestant educational bodies, the National Society and the
British and Foreign School Society. In 1839 the grant was in-
creased to £30,000, and a committee of the Privy Council was
appointed by Order in Council to supervise the expenditure of
the grant.

In the same year the restriction of the grant to schools in
connection with the above-named societies, was removed, and in
1846 grants were first made towards maintaining, as well as
towards erecting, schools. In 1847 Catholic schools were
admitted to share in the grant, and the Catholic Poor School
Committee was founded to represent the educational interests of

SCHOOLS. 107

Catholics. In 1853 the principle of a capitation grant for each
child putting in a fixed number of attendances was sanctioned.
Thus far, it should be noticed, the provision of religious teaching
had been an essential condition of earning the grant, and in
the last-mentioned year the Education Committee definitely
refused a grant to a school conducted on avowedly secularist
principles.

It was the custom of the Department to require the insertion
of certain clauses in the trust deeds of schools erected by their
aid, and a form of deed for Catholic schools was agreed upon
between the Department and the Poor School Committee.
This form is printed in Appendix 0, both as an illustration of
the former system, and because it is on such trusts that a large
number of Catholic school buildings are still held. As will be
seen, this form of deed is cumbersome and inconvenient, and
since the abolition of the system of building school grants it
has fallen into merited disuse.

The present system, as every one knows, dates from Mr.
Forster's Elementary Education Act of 1870 (33 & 34 Viet. c. 75),
which established school boards.

The object of the measure was to provide that there should be
a sufficiency of " efficient " and " suitable " schools in every
district to satisfy its educational wants. School boards were to
be established where a deficiency existed, and were to be em-
powered to levy a rate for the erection and maintenance of the
necessary schools. The school boards, according to the intention
of the framers of the measure, were to supplement, not to super-
sede, the system already provided by voluntary effort through-
out the country. Under the Act of 1870 school boards were to
be provided —

(1) At the initiative of the Education Department, when after
due notice of a deficiency in the district, voluntary bodies had
failed to make it good.

(2) On the application of the council of a borough, or, outside
a borough, of a majority of ratepayers qualified to vote at a
school board election.

(3) In cases of deficiency arising from the closing of a volun*
tary school.

108 THE LAW SPECIALLY AFFECTING CATHOLICS.

The principle of the measure is stated generally in section 5,
which enacts that —

" There shall be provided for every school district a sufficient
amount of accommodation in public elementary schools, as after-
wards defined, available for all the children resident in such
district for whose elementary education efficient and suitable pro-
vision is not otherwise made."

The late Mr. W. E. Forster explained the meaning of the
above clause on moving the first reading of the Bill as
follows : —

" I may at once state that if in any one of these (school) districts
we find the elementary education to be sufficient, efficient, and
suitable, we leave that district alone. By sufficient, I mean, if we
find that there are enough schools ; by efficient I mean, schools
which give a reasonable amount of secular education ; and by
suitable I mean schools to which, from the absence of religious or
other restrictions, parents cannot reasonably object, and, I may
add, that for the purpose of ascertaining the condition of these
districts we count all schools that will receive our inspectors,
whether private or public, whether aided or unaided by Govern-
ment assistance, whether secular or denominational." Hansard,
vol. 199, p. 445.

And Sir Hugh Owen in his standard work on the Education
Acts, after quoting the above passage at p. 68, goes on as
follows : —

" Efficient and suitable provision has been held to be made when
there has been efficient elementary school education within a
reasonable distance of the house of every child who required
elementary instruction, of which he could avail himself on pay-
ment of a reasonable fee without being required to attend any
religious instruction to which the parent objected. The school
provision of a district cannot be regarded as suitable unless there
is some school or other under a conscience clause within reach of
children whose parents wish them to have that protection. There
is nothing in the Act to prevent a school from being recognised
as giving efficient and suitable provision because the teacher is not
certificated."

Since the Free Education Act (54 & 55 Viet. c. 56, s. 5), which
we give in Appendix P, there must be sufficient accommodation
without payment of fees.

After providing for the necessary school accommodation

SCHOOLS. 109

throughout the country, the next step was to make education
compulsory, and the Elementary Education Act, 1876 (39 &
40 Viet. c. 79), made it incumbent on every parent to provide
efficient elementary instruction for his children. Catholic
schools at which such efficient instruction is provided are
either —

(1.) Public elementary schools in receipt of State aid ;

(2.) Certified efficient schools, not in receipt of State aid.

Public elementary schools must be conducted in accordance
with the regulations of the Education Department. Certified
efficient schools, not being in receipt of State aid, are under
less stringent control, but the standard of efficiency exacted
from them is now nearly the same as that required from
schools conducted as public elementary schools. It is natu-
rally, therefore, in the latter category, that the great majority
of Catholic schools are to be found.

Schools not certified as efficient would be practically useless,
as attendance at them would not satisfy the compulsory clauses
of the Act of 1876.

In this chapter will be considered : —

I. General principles applicable to public elementary

schools.

II. Special provisions of the law as to religion and the
conscience clause.

III. The regulations as to Government grants.

IV. The statutory requirements as to attendance.
V. The legislation regarding industrial schools.

I. GENERAL PRINCIPLES APPLICABLE TO PUBLIC ELEMENTARY

SCHOOLS.

An " elementary school " is defined by sec. 3 of the Act of
1870, as—

" A school or department of a school at which elementary educa-
tion is the principal part of the education there given, and does not
include any school or department of a school at which the ordinary
payments in respect of the instruction, from each scholar, exceed
ninepence per week."

110 THE LAW SPECIALLY AFFECTING CATHOLICS.

No definition is anywhere given of what is to be included
in the term " elementary education," and the tendency of
successive codes has been to increase the number of subjects it
contains.

The term " public elementary school" is defined by sec, 7
as follows : —

"Every elementary school which is conducted in accordance
with the following regulations shall be a public elementary school
within the meaning of this Act; and every public elementary
school shall be conducted in accordance with the following regu-
lations (a copy of which regulations shall be conspicuously put up
in every such school) ; namely,

" (1.) It shall not be required, as a condition of any child being
admitted into or continuing in the school, that he shall
attend or abstain from attending any Sunday school or
any place of religious worship, or that he shall attend
any religious observance or any instruction in religious
subjects in the school or elsewhere, from which obser-
vance or instruction he may be withdrawn by his
parent, or that he shall, if withdrawn by his parent,
attend the school on any day exclusively set apart for
religious observance by the religious body to which his
parent belongs :

" (2.) The time or times during which any religious observance
is practised, or instruction in religious subjects is given
at any meeting of the school shall be either at the
beginning or at the end, or at the beginning and the
end of such meeting, and shall be inserted in a time-
table to be approved by the Education Department, and
to be kept permanently and conspicuously affixed in
every schoolroom ; and any scholar may be with-
drawn by his parent from such observance or instruc-
tion without forfeiting any of the other benefits of the
school :

" (3.) The school shall be open at all times to the inspection of
any of Her Majesty's Inspectors, so, however, that it
shall be no part of the duties of such Inspector to
inquire into any instruction in religious subjects given
at such school, or to examine any scholar therein in
any religious subject or book :

" (4.) The school shall be conducted in accordance with the
conditions required to be fulfilled by an elementary
school in order to obtain an annual parliamentary
grant."

Sub-sections 1 and 2 are what is commonly known as the

SCHOOLS. Ill

conscience clause, and will be dealt with below. We may first,
however, consider some of the other conditions necessary for
obtaining the Parliamentary grant.

Under sec. 97 of the Act of 1870 the conditions of obtaining
a Parliamentary grant are to be fixed by the Education Depart-
ment for the time being.

In the Code of 1892 the following are some of the chief
requirements : —

Art 77. The school must be conducted as a public elementary
school.

78. No child may be refused admission as a scholar on other than
reasonable grounds.

79. The time-table must be approved by the Inspectors of the
Department.

80. The school must not be unnecessary

81. The school must not be conducted for private profit or farmed
out by the managers to the teachers. The managers must be re-
sponsible for the payment of the teachers, and all other expenses of
the school.

82. The principal teacher must be certificated. (For exceptions,
see Code.)

83. A day school must have met not less than 400 times in a
year.

The school must have been inspected on behalf of the
Department, the premises must be suitable, and the school
efficient, &c., see Code, 1892, Arts. 84-92.

Many of these requirements are very difficult to comply with
in poor parishes, but the only one which need detain us as
involving at one time a distinct hardship to Catholics is
Article 80, providing the school applying for a grant must not
be unnecessary.

This Article is based on sect. 98 of the Act of 1870, which
provides as follows : —

If the managers of any school which is situate in the district
of a school-board acting under this Act, and is not previously in
receipt of an annual parliamentary grant . . . apply to the
Education Department for a parliamentary grant, the Education
Department may, if they think that such school is unnecessary, refuse
the application.

The Education Department shall cause to be laid before both
Houses of Parliament in each year, a special report stating the

112 THE LAW SPECIALLY AFFECTING CATHOLICS.

cases in which they have refused a grant under this section during
the preceding year, and their reasons for each such refusal.

The words in italics appear to leave the responsibility of
deciding whether the new school is necessary or not to the
Department ; and in regard to districts where there is no
school-board, they have accepted the responsibility and laid
down the following workable and not unsatisfactory test in a
note to Article 80 of the Annual Code.

In a district not under a school-board, a school is not deemed to
be unnecessary, if at the date of its application for an annual grant
it is recognised as a certified efficient school, and has had during
the twelve months preceding such application an average attend-
ance of not less than thirty scholars.

In districts under a school board, the Department are in the
habit of referring the application for a new voluntary school in
the district to the local school-board ; and, if the board reports
that no new school is required, or that the board is prepared
itself to supply the existing deficiency, the Department at one
time accepted such report as conclusive grounds for refusing the
application.

One natural result of this practice was to prevent the applica-
tions of Catholic schools in many cases being dealt with on their
merits, either on account of the anti-Catholic feeling of the
board, or the general Nonconformist dislike to denominational
education of all kinds. A still graver objection was that it
ignored the conscientious objections of Catholic parents to
undenominational education ; and, whilst providing unnecessary
accommodation in board schools, deprived the schools actually
attended by Catholic children of the benefit of the Government
grant. Mr. T. W. Allies, the Secretary of the Poor School
Committee, complained strongly of this state of things in his
evidence before the Eoyal Commission of 1886.

" We should not," he said, " rest with anything short of its
being left still, as the Act leaves it, to the decision of the
Education Department, and that the Education Department
should not take the decision of the school board as if it were its
own, or consider itself bound by the decision of the school board
not to give a grant if it thinks proper. I wish to reserve to the
Education Department the entire decision. We fully admit that

SCHOOLS. 113

if the Education Department, considering all the circumstances,
determines that the school is unnecessary, it may, according to
the Act, give its decision accordingly." *

The commissioners recognised the justice of his contention,
and reported that —

" The remedy for the grievance complained of seems to be in a
more liberal interpretation of the word ' suitability ' of a school,
and in a close adherence to the spirit of the provisions of the Act
of 1870."

Since then, as notably in the case of Portsmouth in the present
year, the Department has taken a wider view of its powers, and
whilst continuing to consult the local school-board, has declined
to be bound by the decision of that body when grounded on
irrelevant or insufficient reasons.

Schools in receipt of the Government grants must be open
to the inspection of the Education Department, to see that the
conditions on which the grants are made are complied with.
The management of the school is not, however, taken over
by the State, but is in the hands of the school managers, who
are responsible to the Department for the conduct of the
school, its maintenance in efficiency, and the provision of the
needful school requisites.

In Catholic schools, the managers usually consist of the
priest, assisted by two members of the congregation. All com-
munications with the Department must be carried on through
the managers ; the various grants are paid to them ; they
appoint and pay the teachers ; make such regulations not in-
consistent with the Code as they may think proper; have to
find the necessary funds by which the Government grants and
the school fees may require to be supplemented. f

II. KELIGION AND THE CONSCIENCE CLAUSE.

The following are the principal requirements of the Code
directly affecting religion.

* Final Eeport of Koyal Commission, p. 58.

t See Provost Wenham's excellent little book, The Schcol Manager, His
Office and Duties in Regard to Denominational Schools. London, St. Anselm's
Society.

114 THE LAW SPECIALLY AFFECTING CATHOLICS.

Lay persons alone are recognised as teachers in day schools
(Code, 1892, Art. 32). The requirements as to religious instruc-
tion are in accordance with the Conscience Clause (sec. 7 of the
Act of 1870).

" (1.) It shall not be required, as a condition of any child being
. admitted into or continuing in the school, that he shall
attend or abstain from attending any Sunday school or
any place of religious worship, or that he shall attend
any religious observance, or any instruction in re-
ligious subjects in the school or elsewhere, from which
observance or instruction he may be withdrawn by his
parent, or that he shall, if withdrawn by his parent,
attend the school on any day exclusively set apart for
religious observance by the religious body to which
his parent belongs :

" (2.) The time or times during which any religious observance
is practised, or instruction in religious subjects is given
at any meeting of the school, shall be either at the
beginning or at the end, or at the beginning and the
end of such meeting, and shall be inserted in a time-
table to be approved by the Education Department,
and to be kept permanently and conspicuously affixed
in every schoolroom; and any scholar may be with-
drawn by his parent from such observance or instruc-
tion without forfeiting any of the other benefits of the
school.

The following minute of April 2, 1878, relates to the above
section : —

(a) Provided that at each meeting of a school instruction in
secular subjects is continuously given for the prescribed
time, by or under the supervision of the principal
teacher, and that there is a class-room attached to the
school, a time-table may be approved, which provides
for religious instruction . . . being given in the class-
room to separate classes or divisions of the school,
either at the beginning or end of the meeting ; and
the time of secular instruction need not be the same
for the whole school.

(6) If there is no class-room attached to the school, the time
for secular instruction must be the same for the whole
school.

Subsect. (2) above requires a time-table showing the times for
religious instruction to be shown in a conspicuous place in every

SCHOOLS. 115

school-room. This time-table must be approved and signed by
the Inspector, who is not to express any opinion as to the time
devoted to religious instruction, provided that the above pro-
visions are not infringed. He is, however, to see that the time-
table, "while conforming to sec. 7 (2), sets apart at each
meeting of a school, for the instruction in secular subjects of
each class or division of the school, at least the amount of time
prescribed by the Code."*

The time fixed by Art. 12 of the Code of 1892 for secular
instruction at each meeting of the school is two hours for older
children and an hour and a half for infants. In the case of
half-time scholars, one attendance is reckoned as an attendance
and a half.

S. 76 of the Act of 1870 empowers the managers of voluntary
schools to hold inspections of their own in religious or other
subjects on any two days in the year.

Where the managers of any public elementary school not pro-
vided by a School Board, desire to have their school inspected, or
the scholars therein examined, as well in respect of religion as in
other subjects, by an inspector other than one of Her Majesty's
inspectors, such managers may fix a day or days, not exceeding
two in any one year, for such inspection or examination.

The managers shall, not less than fourteen days before any day
so fixed, cause public notice to be given in the school, and notice
in writing of such day to be conspicuously affixed in the school.
On any such day religious observance may be practised, and any
instruction in religious subjects given at any time during the
meeting of the school, but any scholar who has been withdrawn
by his parent from any religious observance or instruction in
religious subjects, shall not be required to attend the school on
any such day.

In a circular issued to Her Majesty's inspectors of schools
on the 16th of January, 1878, the Education Department
observe : " It should never be forgotten that a child withdrawn
from the whole or part of the religious teaching or observances
of a school should in no way be subjected to disparaging treat-
ment on account of his parent having thought fit to avail him-
self of his statutory right in this matter. On the other hand, in

* Minutes of Feb. 7, 1881, and April 2, 1878.

i 2

116 THE LAW SPECIALLY AFFECTING CATHOLICS.

your communications respecting the arrangements of the time-
tables, you will remember that you have no right to interfere in
any way with the liberty allowed by statute to managers of
providing for religious teaching and observances at the beginning
and end of the two daily school meetings. In your allusions to
this subject and to the conscience clause, you will be most
careful not to lead managers or teachers to suppose that the
complete provision which has now been made by the Legislature
for protecting the rights of conscience, as an essential part of a
system of compulsory attendance, and the limitation of the
necessary examination by Her Majesty's Inspectors to secular
subjects, imply that the State is indifferent to the moral character
of the schools, or in any way unfriendly to religious teaching."

III. GOVERNMENT GRANTS.

Government grants in aid of voluntary education may be
divided into two classes, (1) Grants to public elementary schools,
(2) Grants to training colleges for teachers.

Grants to Public Elementary Schools may again be sub-
divided into (1) The Annual Grant, and (2) The optional Fee
Grant in lieu of the children's school pence.

The Annual Grant.
The Code of 1892, provides for the following grants : —

I. — Infant Schools.

(1). — A Fixed Grant on the average attendance of 9s. or
7s., according as the conditions of an Infant School
are or are not fully satisfied.

(2). — A Variable Grant of 2s., 4s., or 6s., according to
the report of the Inspector as to the present
character of the instruction and discipline.

(3). — A Grant of Is. for satisfactory teaching of needle-
work, or drawing in the case of boys.

(4). — A Grant of Is. for singing if taught by note, or 6d.
if by ear.

SCHOOLS. 117

II. — Day Schools for older scholars.

(1). — A Principal Fixed Grant of 12s. 6d. on average

attendance of scholars, but increased to 14s. for

special intelligence and proficiency.
(2). — A Fixed Grant of Is. for discipline and organisation,

increased to Is. 6d. on recommendation of Inspector.
(3). — A Grant of Is. on average attendance of Girls, if

taught needlework satisfactorily.

(4). — A Grant of Is. for singing by note, or 6d. if by ear.
(5). — A Grant of Is. or 2s. on Class Subjects (see Section

15), according to report of Inspector.
(6). — A Grant of 2s. or 3s. for each scholar presented

in any specific subject (see Section 15).

III. — Pupil teachers' grant.

(1). — An additional Grant is now made in respect of the
pupil teachers on the necessary minimum staff of
the school who pass the required examinations.

The Grants are of £2 or £1 in respect of pupil teachers
in their first or second year, and of £3 or £4 in
respect of pupils in their third year and of £4 or
£5 in respect of pupil teachers who obtain a Queen's
scholarship, or, in other words, pass the examination
qualifying them for admission to a training college.

A Grant of £15 is also made for assistant-teachers on
the minimum staff, who after three years' service in
the school pass the required examination. This
grant is to cease after March 1, 1895.

These grants are made to voluntary schools and board schools
alike, but on terms which press very differently on the two
classes of schools. No school, whatever the amount earned by
its proficiency, can receive a grant averaging more than
17s. Qd. per child, unless its .total income from other sources
exceeds that amount: and then the grant must not exceed
such other income. Thus, if the total income of the school
from other sources amount only to 16s., the school, though
earning 20s., will only receive 17s. Qd. ; while if the total

118 THE LAW SPECIALLY AFFECTING CATHOLICS.

income from other sources amount to, say, 19s., then, though
the school earn 20s., only 19s. will be paid.

This 17s. 6d. limit, as it is called, adds to the disparity
already existing between voluntary schools depending on volun-
tary support, and board schools with their unlimited powers of
supplementing their income from the rates. The limit at
present in force was created by the Act of 1876 (39 & 40 Yict.
c. 79, s. 19), which provides as follows :

" Such grant shall not in any year be reduced by reason of its
excess above the income of the school if the grant do not exceed
the amount of seventeen shillings and sixpence per child in
average attendance at the school during that year, but shall not
exceed that amount per child, except by the same sum by which
the income of the school derived from voluntary contributions,
rates, school fees, endowments, and any source whatever other
than the parliamentary grant, exceeds the said amount per child."

The Fee Grant under the Act of 1891 (54 & 55 Viet. c. 56)
counts (see below) as " income derived from voluntary contri-
butions " as regards the above limit.

Sect. 1 provides as follows : —

"(3) For the purposes of section 19 of the Elementary
Education Act, 1876, the fee grant, paid or payable to
a sohool, shall be reckoned as school pence to be met by
the grant payable by the Education Department.

The money received under the new pupil teachers' grant, is
necessarily spent on the pupil teachers themselves, and is, there-
fore, not applicable to general school purposes. The effect of
treating it as part of the grant subject to the 17s. 6d. limit, is,
therefore, pro tanto to diminish the amount of the grant applicable
to general school purposes. This has been felt as a decided hard-
ship, and has formed the subject of a remonstrance addressed by
the Catholic Poor School Committee to the Department.

It would be impossible within the limits of this Manual to go
fully into the conditions imposed by the Education Depart-
ment for earning the grant. They are yearly becoming more
arduous, and are imposing a greater strain on the managers of
voluntary schools who cannot, like the school boards, have
recourse to the rates to raise the extra funds, without which it
is impossible to earn the maximum grant.

SCHOOLS. 119

Free Education — the Fee Grant.

We have next to deal with the Fee Grant of 10s. for every
child over three and under fifteen in average attendance at a
public elementary school. The Act of 1891 (54 & 55 Viet,
c. 56, see Appendix P) was passed for the express purpose of
establishing free education, and relieving poor parents from the
burden of finding the school pence for the children. It is not,
however, a compulsory measure, and managers may accept the
Fee Grant or refuse it, as they like.

Further, as appears from a letter addressed by the Depart-
ment to the late Cardinal Archbishop, managers who accept the
Grant may afterwards forego it and resume their full powers of
charging school fees.

Managers accepting the Fee Grant are not allowed to charge
school fees except in certain cases specified in the Act.

2. — (1) In any school receiving the Fee Grant —

(a) Where the average rate of fees received during
the school year ended last before the first day of
January, 1891, was not in excess of 10s. a year
for each child of the number of children in
average attendance at the school ; or
(6) For which an annual parliamentary grant has not
fallen due before the said first day of January ;
no fee shall, except as by this Act provided, be
charged for children over three and under fifteen
years of age.

(c) In any school receiving the Fee Grant where the
said average rate was so in excess, the fees to be
charged for children over three and under fifteen
years of age shall not, except as by this Act
provided, be such as to make the average rate of
fees for all children exceed for any year the
amount of the said excess.

But the average rate of such reduced fees for all children
between the ages of three and fifteen is not to exceed the amount
of the excess of the former average fee. So long as the average
fee charged does not exceed the difference between the old fee
and ten shillings a year, the discretion of the managers is not
further fettered. Thus, it would appear, they may admit some

120 THE LAW SPECIALLY AFFECTING CATHOLICS.

children free whilst charging others a proportionately higher
fee, provided that the average rate charged to all scholars within
the specified age does not exceed the amount of the difference
between the fee previously in force and ten shillings a year.

(3). Where the average rate previously charged for fees, books
and other purposes did not exceed 10s. a year, no charge of
any kind for children is to be made by managers accepting the
Fee Grant (s. 3).

Power is however given to the Department by sect. 4 to
dispense with the above provisions in certain cases, and to
allow managers to charge certain further fees without forfeiting
the Fee Grant. The conditions for such dispensing are :—

(1). Sufficient school accommodation without payment of fees
must have been provided for the district.

(2). The Department must be satisfied that the permission is
required owing to a change of population in the district, or will
be for the educational benefit of the district.

(3). The fee for each child must not exceed sixpence a week.

(4). Power is reserved to the Department of making it a
condition of their permission to charge such fees, that they are
to be taken wholly or partially in reduction of the fee grant.

Sections 6 and 7 of the Act authorise the managers of neigh-
bouring voluntary schools to pay the fee grant received for
each school into a common fund for distribution, as may be
arranged by them, among the different schools.

Payment of School Fees for Poor Parents.

Wherever school fees are charged the guardians are still
bound to pay a fee not exceeding threepence a week for the
children of poor parents who are unable to pay the fees them-
selves. This payment gives the guardians no power to fix the
school to which the child shall be sent — a matter wholly in
the parent's discretion. The important section of the Act of
1876 (39 & 40 Viet. c. 79, s. 10), embodying this principle, is
as follows : —

10. The parent, not being a pauper, of any child who is unable
by reason of poverty to pay the ordinary fee for such child at a

SCHOOLS. 121

public elementary school, or any part of such fee, may apply to
the guardians having jurisdiction in the parish in which he
resides ; and it shall be the duty of such guardians, if satisfied of
such inability, to pay the said fee, not exceeding threepence a
week, or such part. thereof as he is, in the opinion of the guardians,
so unable to pay.

The parent shall not by reason of any payment made under this
section be deprived of any franchise, right, or privilege, or be sub-
ject to any disability or disqualification.

Payment under this section shall not be made on condition of
the child attending any public elementary school other than such as
may be selected by the parent, nor refused because the child
attends, or does not attend any particular public elementary
school.

The twenty-fifth section of the Elementary Education Act, 1870,
is hereby repealed.

This section has not been repealed, but continues in full
force wherever school fees continue to be paid.

Parliamentary Grants to Training Colleges.

Training Colleges for teachers are divided into Eesidential
and Day Training Colleges. Day Colleges have not been
adopted by Catholics. The conditions regarding them will be
found in the Code. Admission to the Eesidential Colleges
is obtained by passing what is known as the Queen's Scholar-
ship examination. This is open to pupil-teachers who have
spent, as a rule, four years in the work of teaching in schools,
and to other candidates who must be over eighteen years of age.

The Grants to Eesidential Colleges which are regulated by
Articles 122-127 of the Code, may be said to amount to £50 for
every master, and £35 a year for every mistress in residence.

The grant is, however, conditional on the scholar's being
recognised during two years as a certificated teacher after
leaving the college and satisfying other prescribed tests.

The total grant made to a College for any year must not
exceed 75 per cent, of its income for the year.

IV. ATTENDANCE.

It is here desirable to set out the chief statutory provisions as to
compulsory attendance at school, the allowance of half-time &c.

122 THE LAW SPECIALLY AFFECTING CATHOLICS.

Compulsory Attendance.

S. 4 of the Act of 1876 (39 & 40 Viet. c. 79) defines the
duty of every parent to educate his children between the ages
of five and fourteen : —

It shall be the duty of the parent of every child to cause such
child to receive efficient elementary instruction in reading, writing
and arithmetic, and if such parent fail to perform such duty, he
shall be liable to such orders and penalties as are provided by this
Act.

Section 11 empowers a court of summary jurisdiction to
make an order for the attendance at school of children, whose
parents neglect to provide efficient elementary education for
them, and of children who are found wandering, or not under
proper control, or consorting with disorderly persons and
reputed criminals.

(1.) If either the parent of any child above the age of five years
who is under this Act prohibited from being taken into
full time employment, habitually and without reasonable
excuse neglects to provide efficient elementary instruc-
tion for his child ; or

(2.) Any child is found habitually wandering or not under
proper control, or in the company of rogues, vagabonds,
disorderly persons, or reputed criminals ;

it shall be the duty of the local authority, after due warning to the
parent of such child, to complain to a court of summary jurisdiction,
and such Court may, if satisfied of the truth of such complaint,
order that the child do attend some certified efficient school willing
to receive him and named in the order, being either such as the
parent may select, or, if he do not select any, then such public ele-
mentary school as the Court think expedient, and the child shall
attend that school every time that the school is open, or in such
other regular manner as is specified in the order.

An order under this section is in this Act referred to as an
attendance order.

Any of the following reasons shall be a reasonable excuse :
(1.) That there is not within two miles, measured according
to 'the nearest road, from the residence of such child
any public elementary school open which the child can
attend; or

(2.) That the absence of the child from school has been caused
by sickness or any unavoidable cause.

Section 12 provides for enforcing such attendance orders by

SCHOOLS. 123

imposing a fine of five shillings on the defaulting parent, and
by sending the child, under certain circumstances, to a certified
industrial school.

Where an attendance order is not complied with, without any
reasonable excuse within the meaning of this Act, a court of sum-
mary jurisdiction, on complaint made by the local authority, may,
if it think fit, order as follows :

(1.) In the first case of non-compliance, if the parent of the
child does not appear, or appears and fails to satisfy the
Court that he has used all reasonable efforts to enforce
compliance with the order, the Court may impose a
penalty not exceeding with the costs five shillings ; but
if the parent satisfies the Court that he has used all
reasonable efforts as aforesaid, the Court may, without in-
flicting a penalty, order the child to be sent to a certified
day industrial school, or if it appears to the Court that
there is no such school suitable for the child, then to a
certified industrial school ; and

(2.) In the second or any subsequent case of non-compliance
with the order, the Court may order the child to be sent
to a certified day industrial school, or if it appears to the
Court that there is no such school suitable for the child
then to a certified industrial school, and may further in
its discretion inflict any such penalty as aforesaid, or it
may for each such non-compliance inflict any such penalty
as aforesaid without ordering the child to be sent to an
industrial school ;

Provided that a complaint under this section with respect to a
continuing non-compliance with any attendance order shall not be
repeated by the local authority at any less interval than two

Bye-Laws as to Attendance, Employment, &c.

The last-mentioned section is still the only means of en-
forcing the attendance of children between 13 and 14 where
necessary, but children between the age .of 10 and 13 are
now further subject to bye-laws made by the local school
board, or school attendance committee, or in default by the
Education Department, and subject in all cases to the approval
of the Department.

Under 33 & 34 Viet. c. 75, s. 74 (the Act of 1870), 39 & 40
Viet. c. 79, ss. 21, 23, and 43 & 44 Viet. c. 23, ss. 2, 3, bye-laws
are now in force in every district.

124 THE LAW SPECIALLY AFFECTING CATHOLICS.

(1) Eequiring parents of children of not less than five or
more than thirteen to cause their children to attend school
unless there be some reasonable cause.

(2) Determining the time during which such children are to
attend school, provided that no such bye-laws shall prevent the
withdrawal of any child from any religious observance or
instruction in religious subjects, or shall require any child to
attend school on any day exclusively set apart for religious
observance by the body to which his parent belongs.

The Education Department have issued a model form of bye-
laws, and now refuse to sanction any which depart from it.
They provide : —

(1.) That no child shall be required to attend school after passing
the fifth standard.

(2.) That no child shown to be beneficially and necessarily em-
ployed shall be required to attend more than 150 times
in each year after passing some standard, usually the
third, to be fixed by the bye-laws.

(3.) That a penalty not exceeding five shillings, including
costs, may be imposed on parents for each offence.

Scholars between ten and thirteen making this diminished
number of attendances are known as half-timers; the Code
requires their names to be kept in a half-time register, but
the managers are not to enter the name of any scholar in
this register, unless he has obtained a labour certificate from
the local authority of the district and is actually employed in
conformity with it.

These bye-laws are based on the provisions of sects. 5, 6 of
the Elementary Education Act, 1876 (39 & 40 Viet. c. 79),
which prohibit the employment of any child under ten, whilst
regulating the employment of children over ten and under
fourteen.

5. A person shall not, after the commencement of this Act, take
into his employment (except as hereinafter in this Act mentioned)
any child —

1.) Who is under the age of ten years ; or

2.) Who, being of the age of ten years or upwards, has not
obtained such certificate either of his proficiency in
reading, writing, and elementary arithmetic, or of

SCHOOLS. 125

previous due attendance at a certified efficient school, as
is in this Act in that behalf mentioned, unless such child
being of the age of ten years or upwards, is employed,
and is attending school in accordance with the provisions
of the Factory Acts, or of any bye-law of the local
authority (hereinafter mentioned) made under section
seventy-four of the Elementary Education Act, 1870, -as
amended by the Elementary Education Act, 1873, and
this Act, and sanctioned by the Education Department.
6. Every person who takes a child into his employment in con-
travention of this Act shall be liable, on summary conviction, to a
penalty not exceeding forty shillings.

Section 5 still governs exclusively the case of children
between the ages of thirteen and fourteen, but the Elementary
Education Act of 1880 (43 & 44 Viet. c. 23, s. 4) has forbidden
altogether the employment of children between ten and thirteen,
except in accordance with the local bye-laws mentioned above.
The section is as follows : —

4. Every person who takes into his employment a child of the
age of ten, and under the age of thirteen years, resident in a school
district before that child has obtained a certificate of having
reached the standard of education fixed by a bye-law in force in
the district for the total or partial exemption of children of the
like age from the obligation to attend school, shall be deemed to
take such child into his employment in contravention of the
Elementary Education Act of 187 6, and shall be liable to a penalty
accordingly.

Provisions of the Factory and Workshop Act, 1878 (41 Viet,
c. 16), as to the Education of Children.

Attendances at School of Children employed in a Factory or Workshop.

23. The parent of a child employed in a factory or in a work-
shop shall cause that child to attend some recognised efficient
school (which school may be selected by such parent), as follows :

(1.) The child, when employed in a morning or afternoon set,
shall in every week, during any part of which he is so
employed, be caused to attend on each work day for at
least one attendance ; and

(2.) The child, when employed on the alternate day system,
shall on each work day preceding each day of employment
in the factory or workshop be caused to attend for at least
two attendances ;

126 THE LAW SPECIALLY AFFECTING CATHOLICS.

(3.) An attendance for the purposes of this section shall be an
attendance as denned for the time being by a Secretary
of State with the consent of the Education Department,
and be between the hours of eight in the morning and
six in the evening :
Provided that —

(a.) A child shall not be required by this Act to attend school
on Saturday or on any holiday or half holiday allowed
under this Act in the factory or workshop in which the
child is employed ; and

(5.) The non-attendance of the child shall be excused on every
day on which he is certified by the teacher of the school
to have been prevented from attending by sickness or
other unavoidable cause, also when the school is closed
during the ordinary holidays or for any other temporary
cause ; and

(c.) Where there is not within the distance of two miles,
measured according to the nearest road, from the residence
of the child a recognised efficient school which the child
can attend, attendance at a school temporarily approved
in writing by an inspector under this Act, although not a
recognised efficient school, shall for the purposes of this
Act be deemed attendance at a recognised efficient school
until such recognised efficient school as aforesaid is esta-
blished, and with a view to such establishment the in-
spector shall immediately report to the Education Depart-
ment every case of the approval of a school by him under
this section.

A child who has not in any week attended school for all the
attendances required by this section shall not be employed in the
following week until he has attended school for the deficient
number of attendances.

The Education Department shall from time to time, by the pub-
lication of lists or by notices or otherwise as they think expedient,
provide for giving to all persons interested information of the
schools in each school district which are recognised efficient
schools.

Obtaining of School Attendance Certificate by Occupier of Factory or

Workshop.

24. The occupier of a factory or workshop in which a child is
employed shall on Monday in every week (after the first week in
which such child began to work therein), or on some other day
appointed for that purpose by an inspector, obtain from the
teacher of the recognised efficient school attended by the child, a
certificate (according to the prescribed form and directions)
respecting me attendance of such child at school in accordance
with this Act.

SCHOOLS. 127

The employment of a child without obtaining such certificate as
is required by this section shall be deemed to be employment of a
child contrary to the provisions of this Act.

The occupier shall keep every such certificate for two months
after the date thereof, if the child so long continues to be employed
in his factory or his workshop, and shall produce the same to an
inspector when required during that period.

Payment by Occupier on Application of Sum for Schooling of Child, and
deduction of it from Wages.

25. The board authority or persons who manage a recognised
efficient school attended by a child employed in a factory or work-
shop, or some person authorised by such board authority or person,
may apply in writing to the occupier of the factory or workshop
to pay a weekly sum specified in the application, not exceeding
threepence and not exceeding one-twelfth part of the wages of the
child, and after that application the occupier, so long as he
employs the child, shall be liable to pay to the applicants, while
the child attends their school, the said weekly sum, and the sum
may be recovered as a debt, and the occupier may deduct the sum
so paid by him from the wages payable for the services of the
child.

Employment as Young Person of Child of thirteen on obtaining an
Educational Certificate.

26. When a child of the age of thirteen years has obtained from
a person authorised by the Education Department a certificate of
having attained such standard of proficiency in reading, writing,
and arithmetic, or such standard of previous due attendance at a
certified efficient school, as hereinafter mentioned, that child shall
be deemed to be a young person for the purposes of this Act.

The standards of proficiency and due attendance for the pur-
poses of this section shall be such as may be from time to time
fixed for the purposes of this Act by a Secretary of State, with the
consent of the Education Department, and the standards so fixed
shall be published in the London Gazette, and shall not have
efiect until the expiration of at least six months after such publi-
cation.

Attendance at a certified day industrial school shall be deemed
for the purposes of this section to be attendance at a certified
efficient school.

Powers of Inspectors.
68. An inspector under this Act shall for the purpose of the

128 THE LAW SPECIALLY AFFECTING CATHOLICS.

execution of this Act have power to do all or any of the following

things; namely,

(5.) To enter any school in which he has reasonable cause to
believe that children employed in a factory or workshop
are for the time being educated ; and

(6.) To examine either alone or in the presence of any other
person, as he thinks fit, with respect to matters under
this Act, every person whom he finds in a factory or
workshop, or such a school as aforesaid, or whom he has
reasonable cause to believe to be or to have been within
the preceding two months employed in a factory or work-
shop, and to require such person to be so examined and to
sign a declaration of the truth of the matters respecting
which he is so examined.

Fine for Employing Children, Young Persons, and Women contrary to

the Act.

83. Where a child, young person, or woman is employed in a
factory or workshop contrary to the provisions of this Act, the
occupier of the factory or workshop shall be liable to a fine not
exceeding three, or if the offence was committed during the
night, five pounds for each child, young person, or woman sj
employed; and where a child, young person, or woman is so
employed in a factory or workshop within the meaning of section
sixteen of this Act, the occupier shall be liable to a fine not
exceeding one, or if the offence was committed during the night,
two pounds for each child, young person, or woman so employed.

A child, young person, or woman who is not allowed times
for meals and absence from work as required by this Act, or
during any part of the times allowed for meals and absence from
work is, in contravention of the provisions of this Act, employed
in the factory or workshop or allowed to remain in any room,
shall be deemed to be employed contrary to the provisions of this
Act.

Fine on Parent for allowing Child or Young Person to be Employed
contrary to the Act, or not causing Child to attend School.

84. The parent of a child or young person shall, —
(1.) If such child or young person is employed in a factory or
workshop contrary to the provisions of this Act, be liable
to a fine not exceeding twenty shillings for each offence,
unless it appears to the Court that such offence was com-
mitted without the consent, connivance, or wilful default
of such parent ; and

(2.) If he neglects to cause such child to attend school in accord-
ance with this Act, be liable to a fine not exceeding
twenty shillings for each offence.

SCHOOLS. 129

Coal Mines Regulation Act, 1887 (50 & 51 Viet. c. 58).

The Coal Mines Eegulation Act, 1887, also contains pro-
visions respecting the employment and education of children.

By sects. 4, 7 boys and girls under twelve are not to be
employed in connexion with any mine. Girls and women are
in no case to be employed underground.

S. 10 provides for the payment of school fees out of wages,
as follows : —

(1.) After a request in writing by the principal teacher of a
public elementary school which is attended by any boy or girl
employed in or in connexion with a mine, the person who pays the
wages of the boy or girl shall as long as he employs the boy or girl
pay to the principal teacher of that school, for every week that the
boy or girl attends the school, the weekly sum specified in the
application, not exceeding twopence per week, and not exceeding
one-twelfth part of the wages of the boy or girl, and may deduct
the sum so paid by him from the wages payable for the services of
the boy or girl.

(2.) If any person after such application refuses to pay on
demand any sum that becomes due as aforesaid, he shall be liable
to a penalty not exceeding ten shillings.

V. INDUSTKIAL SCHOOLS.

It next appears advisable to deal briefly with Industrial
Schools, the classes of children who may be sent to them, and
the protection for their religion while there.

An Industrial School is denned by 29 & 30 Viet. c. 118 as " a
school in which children are lodged, clothed and fed as well as
taught."

Classes of Children to be detained in Certified Industrial Schools.

Any person may bring before two Justices or a Magistrate any
child apparently under the age of fourteen years that comes within
any of the following descriptions, namely, —

(1.) That is found begging or receiving alms (whether actually
or under the pretext of selling or offering for sale any
thing), or being in any street or public place for the pur*
pose of so begging or receiving alms ;

130 THE LAW SPECIALLY AFFECTING CATHOLICS.

(2.) That is found wandering and not having any home or
settled place or abode, or proper guardianship, or visible
means of subsistence ;

(3.) That is found destitute, either being an orphan or having
a surviving parent who is undergoing penal servitude or
imprisonment ;

(4.) That frequents the company of reputed thieves. (Industrial
Schools Act, 1866, s. 14.)

(5.) Lodging, living, or residing with common or reputed
prostitutes, or in a house resided in or frequented by
prostitutes for the purpose of prostitution ;

(6.) Frequenting the company of prostitutes. (Industrial

Schools Amendment Act, 1880, 43 & 44 Viet. c. 15).
The Justices or Magistrate before whom a child is brought
as coming within one of those descriptions, if satisfied on
inquiry of that fact and that it is expedient to deal with
him under this Act, may order him to be sent to a certified
industrial school.

(7.) Where a child apparently under the age of twelve years is
charged before two Justices or a Magistrate with an
oifence punishable by imprisonment or a less punishment,
but has not been in England convicted of felony, or in
Scotland of theft, and the child ought, in the opinion of
the Justices or Magistrate (regard being had to his age and
to the circumstances of the case), to be dealt with under
this Act, the Justices or Magistrate may order him to be
sent to a certified industrial school. (Industrial Schools
Act, 1866, s. 15).

(8.) A child may also be sent to an industrial school under
section twelve of the *' Elementary Education Act of 1876 "
(see above), where an attendance order has not been com-
plied with, and where the parent satisfies the Court that
he has used all reasonable efforts to compel the child to
attend school.

(9.) Eefractory children on application of parents ; and
(10.) Eefractory workhouse children on the application of the
guardians. (Industrial Schools Act, 1866, ss. 16, 17.)

The Act of 1866 contains the following sections regarding
the religious rights of children detained in industrial schools : —

In determining on the school, the Justices or Magistrate shall

endeavour to ascertain the religious persuasion to which

the child belongs, and shall, if possible, select a school

conducted in accordance with such religious persuasion,

and the order shall specify such religious persuasion.

20. If the parent, step-parent, or guardian, or if there be no

parent, step-parent, or guardian, then the god-parent or nearest

adult relative, of a child sent or about to be sent to a certified

SCHOOLS. 131

industrial school which is not conducted in accordance with the
religious persuasion to which the child belongs, states to the
Justices or Magistrate by whom the order of detention has been or
is about to be made (or to two Justices or a Magistrate having
the like jurisdiction) that he objects to the child being sent to or
detained in the school specified or about to be specified in the
order, and names another certified industrial school in Great
Britain which is conducted in accordance with the religious
persuasion to which the child belongs, and signifies his desire
that the child be sent thereto, then and in every such case the
Justices or Magistrate shall, upon proof of such child's religious
persuasion, comply with the request of the applicant, provided, —
First, that the application be made before the child has been

sent to a certified industrial school, or within thirty days after

his arrival at such a school :
Secondly, that the applicant show to the satisfaction of the

Justices or Magistrate that the managers of the school named

by him are willing to receive the child.

25. A minister of the religious persuasion specified in the order
of detention as that to which the child appears to the Justices or
Magistrate to belong may visit the child at the school on such days
and at such times as are from time to time fixed by regulations
made by the Secretary of State for the purpose of instructing him
in religion.

The following sections of the Industrial Schools Act, 1866,
among others, relate to the cost of maintenance of children in
industrial schools : —

Expenses of Children in Industrial Schools.

Power to Treasury to Contribute towards Custody, &c., of Children

Detained.

35. The Commissioners of Her Majesty's Treasury may from time
to time contribute, out of money provided by Parliament for the
purpose, such sums as the Secretary of State from time to time
thinks fit to recommend towards the custody and maintenance of
children detained in certified industrial schools ; provided that such
contributions shall not exceed two shillings per head per week for
children detained on the application of their parents, step-parents,
or guardians.

Power to Prison Authority to Contract for Reception of Children in

Schools.

36. In England a prison authority may contract with the
managers of a certified industrial school for the reception and

K 2

132 THE LAW SPECIALLY AFFECTING CATHOLICS.

maintenance therein of such children as are from time to time ordered
by Justices to be sent there from the district of the prison
authority.

The following extract is taken from a paper by Col. Lenox
Prendergast on the development of the Keformatory and
Industrial School System in England : —

The following table shows the scale of payments made to the
voluntary industrial schools for the various classes of children.
Briefly, it may be stated that, as a general rule, the London
School Board contribution supplements the Treasury contri-
bution, so as to make a total grant to the school of 7s. per child
per week, except in the cases of training ships, where the total
grant is made up to a sum of Ss. per week per child : —

Board Contributions.

Treasury Contributions.

Industrial Schools
Act, 1866.

Elementary
Education
Act, 1876.

Industrial Schools
Act, 1866.

Elementary
Education
Act, 1876.

S. XIV.

S. XV.

S. XVI.

S.XI.(1)

S.XI.(2)

S. XIV.

S. XV.

S. XVI.

S.XI.(1)

S.XI.(2)

Age 6 to 10

s. d.
4 0

3 6f
3 6f

4 0

s. d.

4 0

3 6f
3 6f

4 0

s. d.
5 0

5 0
5 0

5 0

s. d.
5 0

5 0
5 0

5 0

s. d.
3 6

3 6
3 6

3 6

s. d.
3 0

3 6*
3 6*

3 0

s. d.
3 0

3 6*
3 6*

3 0

S. d.
2 0

2 0
2 0

2 0

s. d.
2 0

2 0
2 0

2 0

s. d.
3 6

3 6
3 6

3 6

,, „ having completed}
4 years of detention . ,J

* In cases of schools certified before 1872, this amount is 5s.
f In cases of schools certified before 1872, this amount is 2*.

The school board, the guardians, and the sanitary authority
may also under certain conditions contribute to the support of
industrial schools.

The Keformatory and Industrial Schools Act, 1891 (54 &
55 Viet. c. 23), empowers the managers of reformatory and
industrial schools to apprentice or dispose of the children in
their custody as follows :--

If any youthful offender or child detained in or placed out on
licence from a certified reformatory or industrial school conducts
himself well, the managers of the school may, with his own con-

SCHOOLS. 133

sent, apprentice him to, or dispose of him in, any trade, calling, or
service, or by emigration, not withstanding that his period of deten-
tion has not expired, and such apprenticing or disposition shall be
as valid as if the managers were his parents.

Provided that where he is to be disposed of by emigration, and
in any case unless he has been detained for twelve months, the
consent of the Secretary of State shall also be required for the
exercise of any power under this section.

Day Industrial Schools.

Under the Elementary Education Act, 1876, s. 16, new day
industrial schools, in which industrial training, elementary
education, and one or more meals a day, but not lodging are
provided, have been provided in some districts.

The conditions on which they are carried on are fixed by
Order in Council, and are with some necessary modifications the
same as those regulating industrial schools.

The children admissible to day industrial schools are the
same as those enumerated above, excluding (2),;(3), (4) and (5).

Under s. 16 of the Act of 1876 children may also attend
without order of Court on request of a local authority and of
the parent, and on the undertaking of the parent to pay such
sum not less than Is. a week as may be fixed by the Secretary
of State.

A parent or guardian may require the child to be sent to a
day industrial school conducted in accordance with its religious
persuasion, if there le one within two miles of the residence of the
child.

The Order in Council of March 20, 1877, adapting the
provisions of the Industrial Schools Act, 1866, to Day
Industrial Schools, contains the following clauses relating to
religion : —

23. A minister of the religious persuasion which, as the case
may be, is specified by the order of detention or attendance order
as that to which the child appears to the Court making the order
to belong, or specified in the undertaking of the parent of a child
attending the school without an order of Court as that to which
the child belongs, may visit the child at the school on such days
and at such times, as are from time to time fixed by regulations
made by the Secretary of State, for the purposes of instructing him
in religion.

134 THE LAW SPECIALLY AFFECTING CATHOLICS.

It shall not be required as a condition of any child being
admitted into or continuing in a certified day industrial school,
whether under an order of detention, attendance order, or other-
wise that he shall attend or abstain from attending any Sunday-
school or any place of worship, or that he shall attend any
religious observance or any instruction in religious subjects in
the school or elsewhere, to which his parent objects, or that he
shall, if withdrawn by his parent, attend the school on any day
exclusively set apart for religious observance by the religious
body to which his parent belongs, and the parent may, on any
such day, withdraw the child accordingly.

( 135 )

CHAPTER VII.

TRUSTS AND BEQUESTS.

IT remains to deal in this chapter with the law specially affecting
property devoted to Catholic purposes. We shall consider it
under the following headings : —

I. General Principles.
II. " Superstitious Uses."

III. Eeligious Communities of Men.

IV. How Forbidden Uses may be Validated.
V. Mortmain Acts.

VI. The Taxation of Charities.
VII. The Charity Commission Acts.

I. GENERAL PRINCIPLES.

Catholics now stand on the same footing as Protestant
Nonconformists with respect to property devoted to religious
purposes, with two important exceptions. Trusts and bequests
in favour of religious orders of men " bound by monastic or
religious vows " are illegal and void, owing to the prohibition of
these orders in the Emancipation Act ; and trusts and bequests
for the purpose of obtaining prayers and masses for the dead
are also void, being regarded by the Courts as devoted to
" superstitious uses." Both these disabilities will be considered
later.

With regard to trusts and bequests for Catholic purposes which
are recognised as lawful, the first point to be observed is, that
they are subject to the rule against perpetuities, unless they
come within the wide class of exceptions made in favour of
purposes which are considered " charitable," in the legal

186 THE LAW SPECIALLY AFFECTING CATHOLICS.

meaning given to that word. The rule against perpetuities,
designed to prevent property from being permanently tied up,
requires that every use or trust must be so limited as necessarily
to vest within a life or lives in being, and a further period of
twenty-one years. An exception has, however, always been
made by the Court of Chancery in favour of trusts and uses
which it considers it for the public benefit to perpetuate. Many
of the purposes which the law so favours are enumerated in
43 Eliz. c. 4, and include the relief of the aged and poor, the
maintenance of the sick, the establishment of free schools, the
marriage of poor maids, the support of young apprentices, and the
relief and redemption of prisoners and captives. The list given
in this Act has never been held to be exhaustive, but has been
taken by the Court as a guide in deciding what purposes should
be considered charitable. The history of the special meaning
thus attached to the word " charitable " is traced by Lord
Macnaghten in the recent case of The Commissioners of Income
Tax v. Pemsel*

That, according to the law of England, a technical meaning is
attached to the word " charity," and to the word " charitable," in
such expressions as " charitable uses," " charitable trusts," or
" charitable purposes," cannot, I think, be denied. The Court of
Chancery has always regarded with peculiar favour those trusts of
a public nature, which, according to the doctrine of the Court,
derived from the piety of early times, are considered to be
charitable. Charitable uses or trusts form a distinct head of
equity. Their distinctive position is made the more conspicuous
by the circumstance that, owing to their nature, they are not
obnoxious to the rule against perpetuities, while a gift in per-
petuity not being a charity is void. Whatever may have been the
foundation of the jurisdiction of the Court over this class of trusts,
and whatever may have been the origin of the title by which these
trusts are still known, no one, I think, who takes the trouble to
investigate the question can doubt that the title was recognised,
and the jurisdiction established before the Act of 43 Eliz., and
quite independently of that Act. The object of that statute was
merely to provide new machinery for the reformation of abuses in
regard to charities. But by a singular construction it was held to
authorise certain gifts to charity which otherwise would have been
void. And it contained in the preamble a list of charities so
varied and comprehensive, that it became the practice of the Court

[1891] A. C. 580.

TRUSTS AND BEQUESTS. 137

to refer to it as a sort of index or chart. At the same time it has
never been forgotten that the " objects there enumerated," as Lord
Chancellor Cranworth observes,* " are not to be taken as the only
objects of charity, but are given as instances."

And in an older case, Morice v. Bishop of Durham^ the legal
meaning of the word " charity " was defined by Sir William
Grant as follows : —

" That word in its widest sense denotes all the good affections
men ought to bear towards each other ; in its most restricted and
common sense, relief of the poor. In neither of these senses is it
employed in this Court. Here its signification is derived chiefly
from the statute of Elizabeth. Those purposes are considered
charitable, which the statute enumerates, or which by analogies are
deemed within its spirit and intendment, and to some such purpose
every bequest to charity generally shall be applied."

The creation of charitable trusts, as we shall see presently, is
subject to the important provisions of the so-called Mortmain
Acts.

Trusts for the support of religion are not mentioned in the
Act of Elizabeth, and were not at first regarded as within its
scope. Indeed, Sir Francis Moore, t commenting on the statute
in the reign of James I., tells us that such trusts had been
purposely omitted — " lest," he says, " the gift intended to be
employed upon purposes grounded upon charity might in times
of change (contrary to the minds of the givers) be confiscated
into the King's treasury. For religion being variable, according
to the pleasure of succeeding princes, that which at one time is
held for orthodox may at another be accounted superstitious,
and then such lands are confiscated, as appears by the Statute
of Chantries" (1 Edvv. 6, c. 14). This is the statute of
Edward VI., to which reference will be made in dealing with
so-called superstitious uses.

Sir Francis Moore's opinion did not, however, prevail, and
trusts for the promotion of the established and then only legal
religion were supported as within the equity of the statute, while
trusts for the promotion of the Catholic religion § or Noncon-
formity were treated as illegal, and the money went to the

* 1 D. & J. 79. f 9 Yes. 405. J Cited in Tyssen, p. 119.

§ Gary v. Abbot, 1 Ves. 409 ; A.-G. v. Power (Ir.) 1 Ball & Beatty, 145 ;
A.-G. v. Todd, 1 Keen, 803.

138 THE LAW SPECIALLY AFFECTING CATHOLICS.

Crown to be applied to some legal charity.* Thus the inten-
tion of a Catholic testator was not only defeated, but his money
was often applied for the support of the Established Church. The
effect of the Toleration Act of 1688 was to free all Protestant
Dissenters, except Unitarians, from this disability, and thence-
forth trusts for the promotion of their religious views were en-
forced by the Court. The lawfulness of Catholic charities was not
established until after the Emancipation Act of 1829. By the
Eelief Act of 1791 the Catholic religion ceased to be unlawful,
and, as in the case of Dissenters under the Toleration Act, Catholic
charities would thereupon have become valid, but for an express
proviso in the 17th section of the Act, that whatever uses, trusts,
and dispositions of real or personal property were theretofore
deemed superstitious or unlawful, should continue to be so
deemed, notwithstanding that Act. The Emancipation Act of
1829 gave a very full measure of relief to Catholics taking the
Eoman Catholic oath, but did not expressly refer to Catholic
charities. To remove all doubts regarding these, the Eoman
Catholic Charities Act, 1832 (2 & 3 Will. 4, c. 115), was passed
entitled more fully, " An Act for the better securing the
charitable donations and bequests of His Majesty's subjects in
Great Britain professing the Eoman Catholic Religion." We
give the statute in Appendix Q.
It enacts that :

" His Majesty's subjects professing the Eoman Catholic religion,
in respect of their schools, places of religious worship,f education
and charitable purposes in Great Britain, and the property held
therewith, and the persons employed in or about the same, shall
in respect thereof be subject to the same laws as the Protestant
Dissenters are subject to in England in respect to their schools and
places for religious worship, education, and charitable purposes,
and not further or otherwise."

Since the passing of this Act, which was held to be retro-
spective,}: except as to pending litigation, trusts for Catholic

* Gates and Jones's Case, 2 Vern. 266 ; Gary v. Abbot, and A.-G. v. Todd,
ubi sup.

f 18 & 19 Vic»-. c. 86, s. 2, interprets this section, so far as it relates to
places of religious worship, by providing that they shall be governed by the
law affecting Dissenting places of worship for the time being.

J Bradshaw v. Tastor, 2 My. & K. 221.

TBUSTS AND BEQUESTS. 139

purposes have, subject to the two important exceptions already
mentioned, been held good, but within the rule as to perpetuities
unless in the nature of a charity.* Thus an immediate gift to
nuns of a contemplative order would be held good ; but a trust
to apply the annual income of invested funds for their benefit for
ever would be void, as infringing the rule against perpetuities,
the support of a purely contemplative order not being regarded
as a charitable purpose. On the other hand, a similar trust for
the benefit of Sisters of Charity or Sisters of Mercy would be
held charitable and escape from the operation of the rule,t on
account of the works of charity to which these orders devote
themselves. Generally it may be said that pious uses are not
necessarily charitable. Bequests for the support of Catholic
missions or schools, or the promotion of the Catholic religion
generally, are clearly charitable. In A-G. v. Gladstone^ a
bequest of £15,000 to be applied for the use of Eoman Catholic
priests in and near London was held to create a perpetual
charitable trust. On the other hand, in an Irish case,§ where
£100 was left to be invested and the income applied in having
masses said in a public church for the benefit of the third order
of St. Francis, it was held that the gift was bad as being a
perpetual dedication of the income to a purpose not charitable.

The law as to trusts for Catholic purposes which are neither
charitable, nor void as being for " superstitious uses," or for the
support of forbidden orders, is the same as that which applies
to other bequests for purposes which are lawful but not
charitable,|| and has recently been summed up by North, J., as
follows : —

" There is not the least doubt that a man may, if he pleases, give
a legacy to trustees upon trust to apply it in erecting a monument
to himself in a church, or in a churchyard, or even in unconsecrated
ground, and I am not aware that such a trust is in any way invalid,

' West v. Shuttleworth, 2 My. & K. 684.

t Cocks v. Manners, L. E. 32 Eq. 574.

j 13 Simon, 7.

§ Kehoe v. Wilson, L. R. Ir. 7 Ch. 10.

I) Bequests for the repair of tombs inside a church huve been held
charitable as being for the benefit of the congregation (Floare v. Osborne,
1 L. K, Eq. 585).

140 THE LAW SPECIALLY AFFECTING CATHOLICS.

although it would be difficult to say who would be the cestuis que trust
of the monument. In the same way I know of nothing to prevent
a gift of a sum of money to trustees on irust to apply it for the
repair of such a monument. In my opinion such a trust would be
good, although the testator must be careful to limit the time for
which it is to last, for, not being a charitable trust, unless it is to
come to an end within the limits fixed by the rule against
perpetuities, it would be illegal. But a trust to lay out a certain
sum in building a monument and the gift of another sum in trust
to apply the same for keeping that monument in repair, say
for ten years, is in my opinion a perfectly good trust, though I
do not see who could ask the Court to enforce it."*

II. " SUPERSTITIOUS USES."

The next point for consideration is what the law means by
" superstitious uses," and how it came to prohibit them.
That bequests for prayers and masses for the benefit of the
testator himself or other deceased persons were valid and
enforced before the Keformation admits of no doubt whatever.
The first statutory restriction put upon them is to be found in a
statute of Henry VIIL,f passed in 1531, which forbade trusts of
hereditaments to the use of parish churches, chapels, &c., for the
purpose of having " obits," or annual funeral services, performed
during any longer period than twenty years. This Act did not
forbid the devise of land for the purpose of obtaining masses
during any shorter period.

Much greater importance attaches to the Statute of Chan-
tries (1 Edw. 6, c. 14) passed in 1547 in the first year of
Edward VI.

The preamble recites that :

"a great part of superstition and errors in Christian religion
had been brought into the minds and estimations of men by
reason of the ignorance of their very true and perfect salvation
through the death of Jesus Christ, and by devising and fantasy ing
vain opinions of Purgatory and Masses satisfactory to be done for
them which be departed ; the which doctrine and vain opinion
by nothing more is maintained and upholden than by the abuse of
trentals, chantries and other provisions, made for the continuance
of the said blindness and ignorance."

* In re Dean. Cooper-Dean v. Stevens, 41 Ch. D. 552 (see p. 556).
f 23 Hen. 8, c. 10. Rep. 51 & 52 Viet. c. 42.

TRUSTS AND BEQUESTS. 141

After further reciting that property devoted to such purposes
ought to be devoted to founding schools and other good purposes,
and that the king ought to be entrusted with the execution
of this design, the Act goes on to vest in the king all free
chapels, chantries, lands given for finding a priest, and lands and
charges on lands devoted to the maintenance of any anniversary
or obit. The Act, it is to be noted, dealt only with the past,
and did not apply to trusts subsequently to be created.

The courts, however, have treated the above preamble as dec-
laratory of the law that such trusts and uses were superstitious,
and have, therefore, held them to be void.*

Prior to the Eoman Catholic Charities Act of 1832, there are
several dicta in the books, that trusts for obtaining prayers for
the dead were superstitious and void, but such trusts being in
general the creation of Catholic testators, came under the
general head of illegality attaching to all Catholic purposes.
Such illegality was, however, removed by the Act of 1832, and
the question as to " superstitious uses " was shortly afterwards
distinctly raised in the case of West v. Shuttleworth, 1835.f
There the testatrix left several legacies to priests, and desired
that they should be paid at once, " that I may have the benefit
of their prayers and masses." She also gave other legacies to
priests, " for the benefit of their prayers for the repose of my
soul and that of my deceased husband."

In delivering judgment Pepys, M.K. (afterwards Lord Chan-
cellor Cottenham), said : —

" The gifts to priests and chapels are not affected by the 2 & 3
Will. 4, c. 115, which applies only to schools, places for religious

* An Act of Elizabeth passed in 1559 (1 Eliz. c. 24), may also be referred
to, though it appears to be retrospective, and has not affected the decisions
relating to superstitious uses. It gives to the Queen (s. 7) all past gifts made
since the death of Edward VI., for priests to say, or sing mass, or find any
obit, light, or lamps, &c. ; and provides (s. 8) that when property is given on
condition that the donee should pay any sum to any priest to say, or sing
mass, or to pray for the souls of the dead, the Queen and her heirs should
take the amount devoted to such purposes, and the donee enjoy the residue
of the property. These words, though general, have been interpreted as a
qualification of the preceding section, and, therefore, as applying only to past
gifts (Tyssen, pp. 54-55). See also the retrospective Act of 1 Geo. I., s. 2,
c. 50, cited above, p. 30.

t 2 My. & K. G84.

142 THE LAW SPECIALLY AFFECTING CATHOLICS.

worship, education, and charitable purposes. . . . There can be no
doubt that the sums given to the priests and chapels were not
intended for the benefit of the priests personally, or for the support
of the chapels for general purposes, but that they were given . . . for
the benefit of their prayers for the repose of the testatrix's soul
and that of her deceased husband, and the question is whether such
legacies can be supported. It is truly observed by Sir W. Grant
in Gary v. Abbot (7 Ves. 490), that there was no statute making
superstitious uses void generally, and that the statute of Edward
VI. related only to superstitious uses of a particular description
then existing ; and it is to be observed that that statute does not
declare any such gift to be unlawful, but avoids certain super-
stitious gifts previously created. The legacies in question, there-
fore, are not within the terms of the statute of Edw. 6, but that
statute has been considered as establishing the illegality of certain
gifts, and amongst others, the giving legacies to priests to pray for
the soul of the donor has, in many cases collected in Duke (p. 466),
been decided to be within the superstitious uses intended to be
suppressed by that statute. I am, therefore, of opinion that these
legacies to priests and chapels are void."

The same view was taken by Kindersley, V.-C., in the subse-
quent case of Heaili v. Chapman (1854) : — *

" It is quite clear that, at all events, before 2 & 3 Will. 4 (c. 115),
it was commonly assumed to be the law, and the assumption was
acted on, that a gift to a priest for masses, for the repose of the
testator's soul, or a gift to say masses generally was superstitious
and void. The way in which this came to be the law is this : at
the time of the passing of the statute of Edw. 6, such gifts were void.
That statute declares, as to certain uses, not that they are void — it
assumes that — but that the property given to such uses is to belong
to the Crown ; and the Courts of Law have subsequently put this
interpretation on that statute, not that it actually declares such
trusts to be void, but that it stamps on all such trusts, whether
created before or subsequently to the statute, the character of
illegality, on the ground of being superstitious ; it gives to the
Crown certain property devoted to such uses, but it stamps all
such uses as superstitious and void. . . .

" What did the statute of Will. IV. do ? If it had meant to alter
the law with respect to superstitious uses, certainly it uses the
most singularly inapt words that could well be imagined for the
purpose. But in truth there is no such indication of intention in
the Act at all. What it intended was this. As to their places of
worship, as to their places of education, and as to the employment
of persons officiating in their ceremonial, it is intended to put
Roman Catholics on the same footing as Protestant Dissenters.
But it does not refer at all to the purposes to which property is

2 Drew, 417. See p. 423.

TRUSTS AND BEQUESTS. 143

devoted, which, if superstitious, still render the gift void. No
doubt, if property is given for the use of a place of worship,
that is good"; but the statute leaves quite untouched the case
where property is given for superstitious uses."

The statement that the Act of Edward VI. assumes the uses
therein mentioned to be superstitious is open to observation.
Such uses were certainly valid prior to the Keforrnation, and
were recognised as such in the statute of Henry VIII. in 1531
(23 Henry VIII. c. 10).

The only ground for such invalidity that can be suggested
is that it was the policy of the law to enforce uniformity of
religion according to the doctrines of the Beformation, and to
repress all doctrines opposed to it. This was the ground on
which all Catholic uses were held bad for nearly three hundred
years ; but the law having withdrawn its prohibition of the
Catholic religion and made its doctrine and practice legal, it is
not easy to see why this exception should continue to be made.
Prayers for the dead, it has been held by an ecclesiastical
court, are not contrary to the doctrine of the Established
Church, as is apparently assumed in the above judgments.*

In Michel's Trust, f a Jewish case, Lord Komilly expressed a
well-founded doubt as to the principle on which the Courts
had acted : —

" There are many cases of superstitious uses unconnected with
prayers for the soul ; but in regard to West v. Shuttleworih and
Heath v. Chapman I have always felt this difficulty :

" So far as relates to their places for religious worship and the
property held therewith, Koman Catholics and Jews are now
placed in the same position as Protestant Dissenters ; and, if it be
part of the forms of their religion, that prayers should be said for
the benefit of the souls of deceased persons, it would be difficult
to say that, as a religious ceremony practised by a Dissenting class
of religionists, it could be deemed superstitious in the legal sense
in which these words were used prior to the passing of the statutes
in question, which practically have authorised them. In the time
of Edward VI. and Elizabeth, the ceremony of mass was considered
superstitious, and I do not know that the law made any distinction
between masses generally and masses for souls, or any distinction
between those said for the general purpose and object of their

* Breeks v. Woolfrey, 1 Curt. Eccl. Eep. 880; cited above, p. 61 (n).
t 28 Beav. 39. See p. 42.

144 THE LAW SPECIALLY AFFECTING CATHOLICS.

religion in the worship of God and those which are for more
limited objects which were formerly considered superstitious, and
which the Court now, considering them in a Protestant point of
view, still regards as superstitious. I express no opinion on this
point, as no such case arises here."

In BlundeWs Trusts* the same judge reiterated his opinion of
these cases, though feeling bound by their authority : —

" I expressed a difficulty in the case referred to (Michel's Trust), as
to whether gifts for religious ceremonies practised by a Dissenting
class of religionists might not be permitted if not opposed to public
morality, but I think the decided cases too strong, and that the
House of Lords alone can alter the settled law. It is clear that I
must act on West v. Shuttleworth^ which I cannot overrule." J

In Ee Elliot^ the testator, who died domiciled in England,
left a legacy to a Jesuit College in Victoria, to be spent in masses
for the souls of himself and his wife. The gift was good according
to the law of Victoria. North, J., held that the English law
applied altogether, and that the gift was void.

The Irish Courts, it should be observed, have not followed
the English Courts on this point, and even before the Emanci-
pation Act we find a bequest for masses supported. j| The Act
of Edward VI. did not apply to Ireland, and even before the
Emancipation Act a larger measure of recognition had been
extended to the Catholic religion in Ireland, the Irish Parlia-
ment having by 35 Geo. 3, c. 21, founded a college for the
education of priests. The Irish Courts have also held a bequest
for masses to be a " pious use " within section 16 of the
Charitable Donations and Bequests, Ireland, Act, 1844 (7 & 8
Viet. c. 97).1T On the other hand, such bequests have been
held not to be charitable, and so subject to the rule against

* 30 Beav. 360.

f Ibid. 2 My. & K. 684.

£ The decisions in West v. Shuttleworth and the other cases are ably
criticised in Mitch eson's Charity Commission Acts, p. 46.

§ 1891, W. N. 9.

|| Commissioners of Charitable Donations and Bequests v. Walsh (1823),
7 Jr. Eq. 34, n. ; see also Felan v. Russell, 4 Ir. Eq. 701 ; Read v. Hodgens,
7 Ir. Eq. 17 ; Brennan v. Brennan, Ir. R. 2 Eq. 321 ; Dillon v. Eeilly, Ir. R,
10 Eq. 152.

\ Boyle v. Boyle, Ir. R. 11 Eq. 433.

TRUSTS AND BEQUESTS. 145

perpetuities,* and also liable to legacy duty, from, which in
Ireland bequests purely charitable are exempt. f

The question of these so-called "superstitious uses" has
never yet come before the highest Court ; but, unsound in
principle as the accepted doctrine appears to be, it has been so
long acted upon as to render its reversal improbable.

III. EELIGIOUS COMMUNITIES OF MEN.

Trusts and bequests for the benefit of religious communities
of men " bound by monastic or religious vows " (and, therefore,
not including Oratorians and other similar congregations)
are also illegal, such communities being rendered unlawful
by the provisions of the Emancipation Act referred to in
the chapter on Catholic disabilities. { As already observed, no
attempt has ever been made by the Crown to enforce these
provisions, but their presence on the statute book has the serious
effect of placing such orders under a grave disability. Indi-
vidual members of a forbidden order may of course hold
property and have money left to them in the same way as any
other members of the community ; but the Court will not enforce
trusts or bequests for the collective benefit of the order. It
appears, however, that a bequest to an order upon trust to apply
the fund for charitable purposes would not fail on account of
the disability attaching to the trustee.

In Carbery v. Cox,§ a bequest of £20 a year to the monks of

S to provide clothes for the poor children attending their

school was held a good charitable trust, during the lives of the

monks at S at the time of the testator's death and the

survivors, the fund afterwards to be applied cy-pres, i.e., under a
scheme to be settled subsequently ; but a bequest of £20 a year
after the death of M. C. to the monks of Mount Melleray for
their chapel was held bad on the ground that the Abbot died

* Morrow v. McConville, [1883] L.-E. Ir. xi. 236, and Dorrian v. Gilmore,
L. E. Ir. xv. 69 ; but Wilkinson's Trusts, 19 L. E, Ir. 531, and Bradshaw v.
Jackman, 21 L. E. Ir. .15.

t A.-G. v. Ddaney, Ir. E. 10 C. L. 104; Perry v. Tuomey, 21 L. E. Ir.
480.

J Above, p. 47.

§ 3 Ir. Ch. 231.

146 THE LAW SPECIALLY AFFECTING- CATHOLICS.

before M. C., and that the Court could not recognise his successor
or discover any general charitable purpose.

In Hogan v. Byrne, 1862,* a devise of lands and bequest of
money to the Christian Brothers " to pay their rent," was held
to be a bequest to the order and not to the individual monks,
and therefore bad.

In Sims v. Quinlan^ a bequest for the education of two
priests of the Order of St. Dominic was held bad, and a further
bequest of £500 to the Eev. P. Conway of St. M.'s Priory, Cork,
Eoman Catholic clergyman, was also held bad, as Father Conway
admitted that he was bound by a secret trust to apply the money
in redeeming the rent of the Dominican church at Cork.

On this it may be observed that a secret trust, such as the
law takes cognizance of, is created by a communication made
by the testator in his life, to the devisee or legatee, and
assented to, tacitly or otherwise, by the latter. Such a trust if
legal is enforced ; if illegal as (e.g.) at variance with the law of
Mortmain or as to " superstitious uses," vitiates the devise or
bequest.

In KeJioe v. Wilson, 1880,J three bequests to the superiors of
the time being of three religious orders in Dublin, to be applied
in two cases towards building new churches, and in the third,
towards the maintenance and repair of the existing church, were
held bad, as intended for the benefit of the orders. " If," said
the judge, " the legacies had not been given, these monks would
have had to provide the money for the chapels out of their own
funds. The principal objects are the monks of those orders,
though the public are meant to worship in these chapels." This
reasoning does not appear conclusive — at least, in the cases of
orders in charge of missions. There the congregation are quite
as much interested as the monks in the provision of a suitable
church, and quite as likely to have to find the money. They
are therefore as much beneficiaries as the monks ; and in such
a case it would seem that the bequest might be supported as a
lawful charitable trust for the benefit of the congregation in the

* 13 Ir. C. L. E. 166.
f 17 Ir. Ch. 43.
t L. E. Ir. 7 Ch. 10.

TRUSTS AND BEQUESTS. 147

same way as the legacy to the monks of S to provide clothes

for their school-children was supported in the above-mentioned
case of Oarbery v. Cox.

In Bradsliaw v. Jackman* a bequest to J., Provincial of the
Franciscan Order, for masses was held good by the Irish Courts
as not being necessarily for the benefit of the order.

In Liston v. Kegan, 1882,f a bequest to a priest, which was
proved to be bound by a secret trust for a church of the Yin-
centian Order, was held bad.

In two recent cases of bequests to convents the Irish judges,
following the English case of Cocks v. Manners, have shown a
tendency to uphold such bequests by construing them as
bequests to the individual members of the community.

In Wilkinson's Trusts £ a bequest to the Superioress for the
time being at the date of the testator's death for the purposes of
the convent, was upheld as a trust for the individual nuns in
the convent at the time of the testator's death, and so outside
the rule against perpetuities.

In Bradsliaw v. Jackman,^ a legacy to the Superioress of a
convent, in trust for the community of the convent, was held a
trust in favour of the individual members of the community,
and therefore good.

Roman Catholic Trusts Act, 1860.

The hardships of the law avoiding trusts and bequests for
masses, &c., and for religious orders of men has been somewhat
mitigated by an Act of 1860 (23 & 24 Viet. c. 134), which
we give in Appendix K. It provides as follows : —

Sect. 1. No existing or future gift or disposition of real or
personal estate upon any lawful charitable trust for the exclusive
benefit of persons professing the Koman Catholic religion shall be
invalidated by reason only that the same estate has been or shall
be also subjected to any trust or provision deemed to be super-
stitious or otherwise prohibited by the laws affecting persons

* 21 L. E. Ir. 15.
t L. E. Ir. IX. 531.
t 19 L. E. Ir. 531.
§ 21 L, E. Ir. 15.

L 2

148 THE LAW SPECIALLY AFFECTING CATHOLICS.

professing the same religion, but in every such case it shall be lawful
for the High Court of Chancery or any judge thereof sitting at
chambers in exercise of 1he jurisdiction created by the Charitable
Trusts Act, 1853, upon the application of H. M. Attorney-General,
or of any person authorised for this purpose by the certificate of
the Board of Charity Commissioners for England and Wales, or for
the said Board upon the application of the person or persons acting
in the administration of such real or personal estate or of a
majority of such persons, to apportion the same estate or the
annual income or benefit thereof, so that a proportion thereof to be
fixed by such Court or judge or by the said Board, as the case may
require, may be exclusively subject to the lawful charitable trust
declared by the donor or settlor, and that the residue thereof may
become liable to such lawful charitable trusts for the benefit of
persons professing the Roman Catholic religion to take effect in lieu
of such superstitious or prohibited trusts as the said Court or judge
or the said Board may consider under the circumstances to be
most just, and also that it shall be lawful for the Court or judge or
Board making any such apportionment by the same or any other
order or orders to establish any scheme for giving effect thereto,
and to appoint trustees for the administration of the several por-
tions of such real and personal estate according to the trusts
established of the same proportions respectively, and to vest the
estate to be so apportioned in the trustees so to be appointed.

The Act does not apply where a bequest is entirely devoted
to an unlawful purpose, but only where some of the purposes
are lawful and some unlawful. In such a case the bequest is
to be apportioned, and part assigned for the lawful purposes
mentioned in the will, the remaining part being devoted to
some lawful Catholic charity.

IV. HOW FORBIDDEN USES MAY BE VALIDATED,

Though bequests for superstitious uses or forbidden orders
will never be enforced by the Courts, yet testators may give
practical if not legal effect to their wishes, by adopting the
following method, which we take from a high authority : — *

The author believes that the following scheme is often adopted
of making gifts, which might be void as being gifts for superstitious
uses or as offending against the Statute of Mortmain, for the pur-
poses of the religion of one of the principal denominations in this

* Elphinstone, Introduction to Convey anting, p. 407.

TRUSTS AND BEQUESTS. 149

country. The testator devises or bequeaths the property to two
or three of the clergy of that denomination, selecting respectable
people whom he does not know personally, and he carefully
abstains from communicating his intentions to them ; he leaves
with his will a letter addressed to them stating what he wishes to
have done with the gift, and also a letter addressed to their
ecclesiastical superior informing him of the circumstance. So that
it is impossible on the one hand for them to suppress the testator's
wishes and retain the gift for their own use without their conduct
becoming known to the superior, and on the other hand for anyone
to establish that a trust is created which might be invalid as
offending against the law.

It is obvious that the device of giving a legacy imposing a moral
but not a legal obligation on the legatee to apply it in some
particular manner, may be used for various purposes. A provision
can be made in this manner for an improvident child, or land can
be applied for charitable purposes. In all of these cases it appears
advisable not to state the real intention of the testator in the will
but to leave with the will a letter (not attested) addressed to the
legatee stating the wishes of the testator. The greatest care must
be taken not to inform the legatee during the testator's lifetime of
his real intentions, as, if the legatee be informed, a trust will be
created contrary to the intentions of the parties.

The above passage may be taken as an accurate statement of
the result of decided cases. Where property is left by will on
a secret trust, the Courts will compel the trustee to disclose on
oath the purposes of the trust, and if they are illegal, will
regard the trustee as taking a trust for the legal representative
of the testator. But if the property is left absolutely, and the
testator has not during his lifetime communicated his wishes to
the legatee or devisee, or authorised others to do so, in such
cases the Court will allow the devisee or legatee to take the
property free from all legal restrictions, and will not inquire to
what use he puts it.*

It is not, perhaps, necessary that the will should in all cases
be silent on the subject. Thus a bequest to a priest for the
support of public worship in his, or any stated church, may be
accompanied by a request to him, expressly stated to be
intended not to constitute a trust, or legal obligation, that he
will say masses for the soul of (e.g.) the testator, f

* Lomax v. Ripley, 3 Sm. & Giff. 48 ; see further cases collected in Tyssen,
p. 401.

t Rowbofham v. Dunnett, 8 Ch. D. 430.

150 THE LAW SPECIALLY AFFECTING CATHOLICS.
V. THE MORTMAIN ACTS.

We have next to refer to the statutory restrictions placed on
the alienation for charitable purposes of land or money to be
laid out In the purchase of land. These restrictions were the
creation of what is known as the Georgian Mortmain Act
(9 Geo. 2, c. 36), and have been modified by the Mortmain Acts
of 1888 (51 & 52 Viet c. 42), and 1891 (54 & 55 Viet. c. 73), in
a way which diminishes their importance though it is still
necessary to refer to them. Various statutes had been passed
before the Eeformation, chiefly with a view of checking the
accumulation of land in the hands of religious orders, and so
not subject to alienation. Such lands were said to be in
mortua manu or in mortmain. These statutes,* which forbade
corporations, aggregate or sole, to acquire land without a
special licence from the Crown, are repealed by the Act of 1888,
but substantially re-enacted in section 1 of the Act as follows : —

Forfeiture on Unlawful Assurance or Acquisition in Mortmain.

1. — (1). Land shall not be assured to or for the benefit of, or
acquired by or on behalf of, any corporation in mortmain, other-
wise than under the authority of a licence from Her Majesty the
Queen, or of a statute for the time being in force, and if any land
is so assured otherwise than as aforesaid the land shall be forfeited
to Her Majesty from the date of the assurance, and Her Majesty
may enter on and hold the land accordingly.

As Catholic charities are not legal corporations, the law
affecting corporations need not detain us further.

The Act of George II., commonly called the Georgian
Mortmain Act, provided that no land, or interests in land, or
money to be laid out in land, should be given for charitable
purposes except in the manner fixed by the Act. The principal
requirements of that Act as construed by the Courts are well
expressed in section 4 of the consolidating Act of 1888, which
now regulates the subject.f

(1.) Subject to the savings and exceptions contained in this Act

* 7 Edw. 1, Statut' de Viris Religiosis ; 13 Edw. 1, c. 32 ; 18 Edw. 3
st. 3, c. 3 ; 15 Rich. 2, c. 5 ; 23 Hen. 8, c. 10.

t 9 Geo. 2, c. 36, s. 5, is still in force as regards the colleges of Eton,
Winchester and Westminster.

TRUSTS AND BEQUESTS. 151

every assurance of land to or for the benefit of any charitable
uses, and every assurance of personal estate to be laid out in the
purchase of land to or for the benefit of any charitable uses shall
be made in accordance with the requirements of this Act, and
unless so made shall be void.

(2.) The assurance must be made to take effect in possession for the
charitable uses to or for the benefit of which it is made immediately
from the making thereof.

(3.) The assurance must, except as provided by this section, be
without any power of revocation, reservation, condition, or pro-
vision for the benefit of the assuror or of any person claiming under
him.

(4.) Provided that the assurance, or any instrument forming
part of the same transaction, may contain all or any of the follow-
ing provisions, so, however, that they reserve the same benefits to
persons claiming under the assuror as to the assuror himself;
namely,

(i.) The grant or reservation of a peppercorn or other nominal
rent.

(ii.) The grant or reservation of mines or minerals ;

(in.) The grant or reservation of any easement ;

(iv.) Covenants or provisions as to the erection, repair, position,
or descriptions of buildings, the formation or repair of
streets or roads, drainage or nuisances, and covenants or
provisions of the like nature for the use and enjoyment as
well of the land comprised in the assurance as of any
other adjacent or neighbouring land ;

(v.) A right of entry on non-payment of any such rent or on
breach of any such covenant or provision ;

(vi.) Any stipulations of the like nature for the benefit of the
assuror or of any person claiming under him.

(5.) If the assurance is made in good faith on a sale for full and
valuable consideration, that consideration may consist wholly or
partly of a rent, rent-charge, or other annual payment reserved or
made payable to the vendor, or any other person, with or without
a right of re-entry for non-payment thereof.

(6.) If the assurance is of land, not being land of copyhold or
customary tenure, or is of personal estate, not being stock in the
public funds, it must be made by deed executed in the presence of
at least two witnesses.

(7.) If the assurance is of land, or of personal estate, not being
stock in the public funds, then, unless it is made in good faith for
full and valuable consideration, it must be made at least twelve
months before the death of the assuror, including in those twelve
months the days of the making of the assurance and of the death.

(8.) If the assurance is of stock in the public funds, then, unless
it is made in good faith for full and valuable consideration, it
must be made by transfer thereof in the public books kept for the

152 THE LAW SPECIALLY AFFECTING CATHOLICS.

transfer of stock at least six months before the death of the assuror,
including in those six months the days of the transfer and of the
death.

(9.) If the assurance is of land, or of personal estate other than
stock in the public funds, it must, within six months after the
execution thereof, be enrolled in the Central Office of the Supreme
Court of Judicature, unless in the case of an assurance of land to
or for the benefit of charitable uses those uses are declared by a
separate instrument, in which case that separate instrument must
be so enrolled within six months after the making of the assurance
of the land.

The above section regulates the manner in which land or
money to be laid out in land, may be given for charitable uses.
It does not authorise a devise by will, and down to the passing
of the Mortmain Act, 1891, all such devises were bad, this indeed
being the express purpose of the legislature. "The mischief,"
said Lord Justice James in Attree v. Hawe* " the sole mischief
which the legislature set itself to prevent was the increase of
inalienable land through the weakness of, or practices upon,
dying persons, or through posthumous charity." Such bequests
failed absolutely, and the charitable intention of the testator
was absolutely defeated. This has now been altered by the
Act of 1891, but, as gifts and devises of land or money to be
laid out upon land, made during the life of the donor or grantor,
are still regulated by the above section, it may be convenient
to recapitulate its effect.

(1.) The assurance of land, or of personal estate to be laid
out in the purchase of land, for the benefit of the charity must
take effect at once in possession, and must contain no power of
revocation or reservation for the benefit of the assuror with the
exception of those mentioned, the most important of which is,
that where the transaction is a sale, part of the price may be
reserved by way of rent-charge on the property.

(2.) An assurance of land, not being copyhold, and of money
to be laid out in the purchase of land, not being stock in the
public funds, must be by deed executed in the presence of two
witnesses.

An assurance of land, or of personal estate to be laid out in
land, not being stock in the public funds, must be made at least

* 9 Ch. D. 337.

TRUSTS AND BEQUESTS. 153

twelve months before the death of the assuror, unless there be full
and valuable consideration, and must be enrolled at the Central
Office of the Supreme Court within six months after execution,
unless the charitable uses are declared by a separate instrument,
in which case the separate instrument is to be enrolled.

(3.) An assurance of stock in the public funds to be laid out
in the purchase of land for charitable uses must, unless made
for full and valuable consideration, be made by transfer in the
public books kept for the purpose at least six months before the
death of the assuror.

Assurances, otherwise than by will, of land not exceeding
two acres for the benefit of a religious or educational society,
are exempted from the above formalities by sect. 7, sub-sect. 2,
which is as follows : —

(ii.) An assurance, otherwise than by will, to trustees on behalf
of any society or body of persons associated together for
religious purposes or for the promotion of education . ... of
land not exceeding two acres for the erection thereon of a
building for such purposes, or any of them, or whereon a
building used or intended to be used for such purposes,
or any of them, has been erected, so that the assurance be
made in good faith for full and valuable consideration,

The word land in the above Act is now * to include " tene-
ments and hereditaments, corporeal or incorporeal, of any
tenure, but not money secured on land or other personal estate
arising from or connected with land." The probable effect of
this definition f is that leaseholds are now the only item of
personal property subject to the restrictions of the Mortmain
Acts, and that otherwise the old distinction between pure and
impure personalty has been abolished.

Charitable Bequests by Will.

The important changes made by the Mortmain and Charitable
Uses Act, 1891, already referred to (which we give in
Appendix E) have now to be considered. Before the passing
of this Act testators, while free to bequeath their pure
personalty on lawful charitable uses, were absolutely restrained

* 54 & 55 Viet. c. 73, s. 3, repealing definition in the Act of 1888.
t See Tyssen's New Law of Charitable Bequests, 1891, at p. 9.

154 THE LAW SPECIALLY AFFECTING CATHOLICS.

from so dealing with land, or personal property savouring of
land, and known as impure personalty, such as leaseholds,
mortgages, &c., and such bequests were illegal and void.

But now the Act provides that in case of all persons dying
after the passing of the Act —

" Land may be assured by will to or for the benefit of any chari-
table use, but, except as hereinafter provided, such land shall, not-
withstanding anything in the will contained to the contrary, be
sold within one year from the death of the testator."

The time is capable of extension by the Court or the Charity
Commissioners.

If not sold within the prescribed time it is to be sold by the
Charity Commissioners (s. 6).

Personal estate directed to be laid out in land for the benefit
of any charitable uses is not to be so laid out, but to be dealt
with as if there was no such direction (s. 7).

But the Court or the Commissioners may authorise the
charity to keep or acquire under the bequest any land required
for actual occupation for the purposes of the charity.*

While the Mortmain and Charitable Uses Act, 1891, will at
least prevent the testator's intention from failing for want of
compliance with the Mortmain Acts, at the same time such
bequests continue fettered with troublesome and uncertain
conditions, and charitable landowners will be well advised as
heretofore to convey the land to trustees during lifetime, or to
direct their charitable legacies to be paid out of their personal
estate other than leaseholds. f

VI. THE TAXATIOX OF CHARITIES.

The taxation or exemption from taxation of charities depends
upon various statutes to which we proceed to refer.

Legacy and Succession Duty.

Gifts for charitable purposes are now liable to legacy and
succession duty at the rate of 11J per cent.J The liability to

* See the Act in the Appendix.

t See Tyssen's New Law of Charitable Bequests, p. 24.

j 51 Viet. c. 8, s. 21, sub-s. (2).

TfiUSTS AND BEQUESTS. 155

the tax is still regulated by 16 & 17 Yict. c. 51, s. 16, which
provides as follows : —

Where property shall become subject to a trust for any chari-
table or public purposes, under any past or future disposition,
which, if made in favour of an individual, would confer on him a
succession, there shall be payable in respect of such property, upon
its becoming subject to such trusts, a duty at the rate of ten
pounds per centum upon the amount or principal value of such
property; and it shall be lawful for the trustee of any such
property to raise the amount of any duty due in respect thereof,
with all reasonable expenses, upon the security of the Charity
property, at interest, with power for him to give effectual dis-
charges for the money so raised.

Substituted Duty on Corporate and Unincorporate Bodies.

A substituted duty of five per cent, per annum on the net
annual income was imposed by 48 & 49 Yict. c. 51, s. 11, on
property vested in corporate and unincorporate bodies, which
escapes liability to probate, legacy, and succession duty. The
preamble and enacting section are as follows : —

Whereas certain property, by reason of the same belonging to or
being vested in bodies corporate or unincorporate, escapes liability
to probate, legacy, or succession duties, and it is expedient to
impose a duty thereon by way of compensation to the revenue :
Be it therefore enacted, that there shall be levied and paid to Her
Majesty in respect of all real and personal property which shall
have belonged to or been vested in any body corporate or unincor-
porate during the yearly period ending on the fifth day of April
one thousand eight hundred and eighty-five, or during any subse-
quent yearly period ending on the same day in any year, a duty at
the rate of five pounds per centum upon the annual value, income,
or profits of such property accrued to such body corporate or
unincorporate in the same yearly period, after deducting therefrom
all necessary outgoings, including the receiver's remuneration, and
costs, charges, and expenses properly incurred in the management
of such property.

Subject to exemption from such duty in favour of property of
the description following (that is to say)—

(3) Property which, or the income or profits whereof, shall be
legally appropriated and applied for any purpose connected with
any religious persuasion, or for any charitable purpose, or for the
promotion of education, literature, science, or the fine arts.

156 THE LAW SPECIALLY AFFECTING CATHOLICS.

(6.) Property acquired by or with funds voluntarily contributed
to any body corporate or unincorporate within a period of thirty
years immediately preceding.

Section 15 makes the following provisions as to the returns and
accounts to be made by bodies chargeable with such duty : —

(1.) Every body corporate or unincorporate, chargeable with the
duty hereby imposed shall, on or before the first day of December
in the year one thousand eight hundred and eighty-five, and on or
before the first day of October in every subsequent year, deliver, or
cause to be delivered, to the Commissioners or their officers, a full
and true account of all property in respect whereof any such duty
shall be payable, and of the gross annual value, income, or profits
thereof accrued to the same body in the year ended on the pre-
ceding fifth day of April, and of all deductions claimed in respect
thereof, whether by relation to any of the before-mentioned ex-
emptions from such duty or as necessary outgoings.

(2.) The account shall be made in such form and shall contain
all such particulars as the Commissioners shall, lay any general or
special notice require, or as shall be necessary or proper for
enabling them fully and correctly to ascertain the duty due, and
every accountable officer herein-before made answerable for pay-
ment of duty in respect of any property chargeable under this
Act, shall be answerable also for the delivery to the Commissioners
of such full and true account as aforesaid of and relating to such
property.

The property of the Institution of Civil Engineers has been
held exempt from the duty, as being applied for the promotion
of science.*

In arguing unsuccessfully against the exemption the Attorney-
General remarked that " the words for the promotion of science "
in sub-s. 3, are much narrower than the words " for any purpose
connected with a religious persuasion/' and the Courts would no
doubt give a wide extension to the latter phrase. Neither these
words, " any purpose connected with a religious persuasion,"
nor the words " legally appropriated " have yet been made
the subject of legal interpretation, and it would be hazardous
to prophesy the exact meaning the judges would put upon
them.

It does not, however, appear probable that any property held
for Catholic purposes can be made liable to the duty imposed

* Commissioners of Inland Revenue v. Forrest, 15 App. Gas. 334.

THUSTS AND BEQUESTS. 157

by this Act. Every case must depend on its own circumstances,
but such property would probably be found either not to be
within the purview of the Act at all as not being "legally
appropriated" within: the meaning of the Act, or else to be
within one of the exemptions which it confers.

Income Tax.

Charities, it may now be said broadly, are exempt from income
tax. The exemption is conferred by the following sections of
the Property Tax Act, 1842 (5 & 6 Viet. c. 35).

Section 61 relates to exemptions under Schedule A.

Allowances for Colleges and Halls in Universities.

" For the duties charged on any college or hall in any of the
universities of Great Britain, in respect of the public buildings and
offices belonging to such college or hall, and not occupied by any
individual member thereof, or by any person paying rent for the
same, and for the repairs of the public buildings and offices of such
college or hall, and the gardens, walks, and grounds for recreation
repaired and maintained by the funds of such college or hall :

Hospitals, Public Schools, Almshouses.

" Or on any hospital, public school, or almshouse, in respect of
the public buildings, offices, and premises belonging to such
hospital, public school, or almshouse, and not occupied by any
individual officer or the master thereof, whose whole income, how-
ever arising, estimated according to the rules and directions of this
Act, shall amount to or exceed £150 per annum, or by any person
paying rent for the same, and for the repairs of such hospital,
public school, or almshouse, and offices belonging thereto, and of
the gardens, walks, and grounds for the sustenance or recreation of
the hospitallers, scholars, and almsmen, repaired and maintained
by the funds of such hospital, school, or almshouse, or on any
building the property of any literary or scientific institution, used
solely for the purposes of such institution, and in which no pay-
ment is made or demanded for any instruction there afforded, by
lectures or otherwise ; provided also, that the said building be not
occupied by any officer of such institution, nor by any person
paying rent for the same :

" The said allowances to be granted by the Commissioners for
general purposes in their respective districts :

158 THE LAW SPECIALLY AFFECTING CATHOLICS.

Bents of Lands belonging to Hospitals, etc., or Vested in Trustees
for Charitable Purposes.

" Or on the rents and profits of lands, tenements, and heredita-
ments, or heritages belonging to any hospital, public school, or
almshouse, or vested in trustees for charitable purposes, so far as
the same are applied to charitable purposes :

"The said last-mentioned allowances to be granted on proof
before the Commissioners for special purposes of the due applica-
tion of the said rents and profits to charitable purposes only, and
in so far as the same shall be applied to charitable purposes only :

" The said last-mentioned allowances to be claimed and proved
by any steward, agent, or factor acting for such school, hospital, or
almshouse, or other trust for charitable purposes, or by any
trustee of the same, by affidavit to be taken before any Com-
missioner for executing this Act in the district where such person
shall reside, stating the amount of the duties chargeable, and the
application thereof, and to be carried into effect by the Com-
missioners for special purposes, and according to the powers vested
in such Commissioners, without vacating, altering, or impeaching
the assessments on or in respect of such properties ; which assess-
ments shall be in force and levied notwithstanding such allow-
ances."

There is the following exemption under Schedule C, s. 88 : —

Stock of Charitable Institutions Exempted.

" The stock or dividends of any corporation, fraternity, or
society of persons, or of any trust established for charitable
purposes only, or which, according to the rules or regulations
established by Act of Parliament, charter, decree, deed of trust, or
will, shall be applicable by the said corporation, fraternitj', or
society, or by any trustee, to charitable purposes only, and in so
far as the same shall be applied to charitable purposes only ; or
the stock or dividends in the names of any trustees applicable
solely to the repairs of any cathedral, college, church or chapel, or
any building used solely for the purpose of divine worship, and in
so far as the same shall be applied to such purposes ; provided the
application thereof to such purposes shall be duly proved before
the said Commissioners for special purposes by any agent or
factor on the behalf of any such corporation, fraternity, or society,
or by any of the members or trustees."

Section 105 deals with exemptions under Schedule D.

" That any corporation, fraternity, or society of persons, and
any trustee, for charitable purposes only, shall be entitled to the

TKUSTS AND BEQUESTS. 159

same exemption in respect of any yearly interest, or other annual
payment, chargeable under Schedule (D) of this Act, in so far as the
same shall be applied to charitable purposes only, as is herein-
before granted to such corporation, fraternity, society, and trustee
respectively, in respect of any stock or dividends chargeable under
Schedule (0) of this Act, and applied to the like purposes ; "

The Courts have expressed unwillingness to give a precise
definition of the term " public school " in the above Act. In
Blake v. Mayor of London* Denman, J., whose words are
quoted with approval by Fry, L.J., in the Court of Appeal,
said : —

"I think it is clear that the Legislature did not intend the
exemption to be in favour only of schools wholly supported by
charity. The enactment seems to have been drawn with a mixed
intention, namely to exempt charitable institutions, and to exempt
certain institutions partly depending on charity, perhaps in view
of the beneficial character of the objects of those institutions."

Lastly, it may be said, that charities are liable to be rated for
the relief of the poor ;| they are also, with some few exceptions,
liable to the land tax.

As regards the inhabited house duty, hospitals, charity
schools, and houses for the reception or relief of the poor are
exempted.!

VII. THE CHAEITY COMMISSION ACTS.

Charitable funds must be administered in accordance with
the provisions of the trust deeds under which they are settled.

In the absence of written documents, the trusts of Catholic
charities may be ascertained by usage under section 5 of the
Eoman Catholic Charities Act, 1860 (23 & 24 Viet. c. 134, s. 5).

" Where, any real or personal property, subject to any use, trust,
gift, foundation or disposition for any charity relating to or
connected with the Koman Catholic religion, shall have been
applied upon any charitable trusts relating to, or connected with

* 19 Q. B. D. 79.

f Mersey Dock v. Cameron, 11 H. L. C. 443.

t 48 Geo. 3, c. 55, Sched. B; Exemptions, Case IV. : 14 & 15 Viet. c. 36,
cited in Tudor, 368.

160 THE LAW SPECIALLY AFFECTING CATHOLICS.

the same religion during any continuous period of twenty years,
but the original trusts of such property shall not be ascertained by
means of any written document, the consistent usage of the last
period of twenty years, or of the last period of twenty years
during which any consistent usage shall have prevailed, shall be
deemed to afford conclusive evidence of the trusts on which the
property shall have been settled."

Catholic charities, with exceptions to be noticed below, are
now subject to the supervision of the Board of Charity Com-
missioners, their exemption from the Charitable Trusts Acts of
1853 and 1855 having expired on September 1, 1859.* We
proceed to refer briefly to the chief powers of control and
assistance conferred by statute on the Board. These powers
are very extensive, and include a general jurisdiction over
charities similar to that exercised by the Court of Chancery,
and a power to veto all applications to the courts in the
matter of charities, unless instituted by the Attorney-General
acting ex officio, or by persons claiming adversely to the charity.

Before referring in detail to these powers it may be well to
quote the following extract from the 29th Eeport of the Com-
missioners on their general position with regard to the trustees
of charities subject to their jurisdiction : — t

" The exercise, whether by the Court or the Commissioners of
(their) jurisdiction (as regards charities) has been from time to
time resented by trustees of charities as antagonistic to their
interests, and as restrictive of the powers entrusted to them.

" This view of the relations between the State and the trustees
seems to be due to a failure to recognise either the purely remedial
and protective character of this jurisdiction or the true position of
the trustees, who have been concisely described, on the high
authority of Lord Lyndhurst (Hansard Parl. Deb. vol. Ixxxv.
p. 155) as ' public officers invested with public powers and public
duties.'

" The central regulating authority, whatever it be, is specially
charged, as the protector of charities, with the maintenance of that
permanent character which is their distinctive feature. It is only
where trustees, being more immediately and fitly concerned with
the present administration of a charity, may be disposed to over-

* Catholic charities were exempted for two years by 16 & 17 Viet. c. 37,
s. 62, and the exemption was prolonged from year to year by subsequent
statutes, expiring at the date mentioned in the text.

fApp.p.21.

TRUSTS AND BEQUESTS. 161

look its more remote and permanent interests, or where they
deviate from the terms of their trust, that any real antagonism
exists "between the two authorities.

" The central authority, in the discharge of the duty which is
unquestionably imposed upon it, must decide how far the interests
which it has to guard are served by the course of administration
pursued by the trustees, and in so doing can recognise no in-
terests other than, or at variance with, those of the foundation
itself.

" The principle thus stated underlies all the relations between
the Charity Commissioners and trustees of charities, and it is that
which governs the distinction which may be drawn between the
functions of the two bodies.

" The trustees are the sole and responsible administrators of the
income of the charity within the limits prescribed by the founder.
They have no power, however, to deal with the capital, nor, as has
recently been laid down with much emphasis by the Court of
Appeal in the case of the Campden Charities at Kensington (lie
Campden Charities, 18 Ch. D. 310), to vary in the slightest degree
the prescribed mode of application of income.

" The Charity Commissioners, on the other hand, are in no sense
administrators of income. The constitution and maintenance of
an efficient body of administrating trustees is as necessary to the
discharge of their functions as it is to the due execution of the
founder's intention. But they are constituted the judges of all
dealings with capital, as well as all variations of the prescribed
mode of giving effect to the objects of the charity."

Sects. 9-14 of the Charitable Trusts Act, 1853 (16 & 17 Viet,
c. 137), empowers the Board to hold inquiries into the condition
and management of charities, to require accounts and state-
ments, and to examine witnesses on oath. Persons giving false
evidence are to be guilty of a misdemeanour, and persons
refusing to render accounts, or to attend and answer questions,
or refusing to produce documents, are to be guilty of a con-
tempt of Court. These provisions are not, however, to apply to
persons claiming adversely to the charity.

The powers of the Board to call for accounts and examine
witnesses are now regulated by ss. 6-9 of the Charitable Trusts
Act, 1855 (18 & 19 Viet. c. 124).

VI. The Board . . . may require written accounts and state-
ments and answers to inquiries relating to any charity, or the
property or income thereof, to be rendered or made to them
respectively by all or any of the following persons ; that is to
say,

162 THE LAW SPECIALLY AFFECTING CATHOLICS.

Trustees or persons acting or concerned in the administration of
the charity, its property or income, or in the receipt or pay-
ment of any monies thereof :

Agents of any trustees or persons :

Depositaries of any funds or monies of the charity :

Persons in the beneficial receipt of any funds thereof, or of any
income or stipend therefrom :

Persons having the possession or control of any documents con-
cerning the charity or any property thereof:

And the Board or the commissioner or inspector may require the
persons rendering or making any such account, statement, or
answer to verify the same by oath or otherwise, and may
administer such oath : Provided always, that nothing herein con-
tained shall extend to give to the said Board or their inspectors
any power of requiring from any person holding or claiming to
hold any property whatsoever adversely to any charity, or free or
discharged from any charitable trust or charge, any information,
or the production of any deed or document whatever, in relation
to the property so held or claimed adversely, or any charitable
trust or charge alleged to affect the same.

Power to require Trustees and Others to attend and be examined.

VII. The Board, or any commissioner or inspector acting as
aforesaid, may require all or any such trustees and persons as
aforesaid to attend before them respectively at such times and
places as may be reasonably appointed, for the purpose of being
examined in relation to the charity, and to answer such questions
as may be proposed to them, and to produce upon such examina-
tion any documents in their custody or power relating to the
charity or the property thereof, and may examine upon oath or
otherwise all such persons and all persons voluntarily attending,
and may administer such oath : Provided always, that no person
shall be obliged to travel in obedience to any such requisition
more than ten miles from his place of abode.

Persons not complying with Requisitions, d?c., to be deemed guilty of a
Contempt of the Court of Chancery.

IX. Any person refusing or wilfully neglecting to comply with
any such requisition, or with any order of the Board, made under
the provisions of this Act or the principal Act, or destroying or
withholding any document required to be produced or transmitted
by him, shall be taken to be guilty of a contempt of the High
Court of Chancery, and shall be liable to be attached and com-
mitted by such Court, on summary application by the Com-
missioners to the same Court, or to any judge thereof, and shall
pay such costs attending such contempt as the said Court, or judge

TRUSTS AND BEQUESTS. 163

shall direct : Provided always, that the Court may at any time
discharge, on such terms as it may deem just, any person attached
or committed on any such application, or on any application made
under section fourteen of the principal Act.

Trustees of charitable funds, within the Charitable Trusts
Acts, are bound to furnish annual accounts to the Commis-
sioners under 18 & 19 Viet. c. 124, s. 44.

Provision as to the annual Returns of Accounts by Trustees of
Charities.

The trustees or administrators of every charity shall, on or
before the twenty-fifth day of March one thousand eight hundred
and fifty-six, prepare and make out and transmit to the Board an
account of the endowments then belonging to the charity, showing
in the case of realty not in hand the manner in which the same is
let or occupied, and in the case of personalty the existing invest-
ment or employment thereof, and in what names such investments
are made; and such trustees or administrators shall also on or
before the twenty-fifth day of March next after the acquisition of
any endowment not included in the foregoing account prepare and
make out, in like manner, and transmit to the Board, a similar
account of such last-mentioned endowment, and in case of any
alienation, or charge, or transfer of any real or personal estate of
the charity, shall on or before the twenty-fifth day of March then
next following transmit to the Board an account of such alienation,
charge, or transfer, and such trustees or administrators shall also,
on or before the twenty-fifth day of March in every year, or such
other day as may be fixed for that purpose by the Board, or as
may have been already fixed for rendering the accounts thereof
required by the principal Act, prepare and make out the following
accounts in relation thereto ; (that is to say),

(1.) An account of the gross income arising from the endowment,

or which ought to have arisen therefrom, during the year

ending on the thirty- first day of December then last, or

on such other day as may have been appointed for this

purpose by the Board :
(2.) An account of all balances in hand at the commencement

of the year, and of all monies received during the same

year, on account of the charity :
(3.^ An account for the same period of all payments :
(4.) An account of all monies owing to or from the charity, so

far as conveniently may be :

which accounts shall be certified under the hand of one or more of
the said trustees or administrators, and shall be audited by the
auditor of the charity, if any ; and the said trustees or adminis-
trators shall, within fourteen days after the day appointed for

164 THE LAW SPECIALLY AFFECTING CATHOLICS.

making out such, accounts, deliver or transmit a copy thereof to
the Commissioners at their office in London, and in the case of
parochial charities shall deliver another copy thereof to the
churchwarden or churchwardens of the parish or parishes with
which the objects of such charities are identified, who shall
present the same at the next general meeting of the vestry of
such parishes, and insert a copy thereof in the minutes of the
vestry book ; and every such copy shall be open to the inspection
of all persons at all seasonable hours, subject to such regulations
as to the said Board may seem fit ; and any person may require a
copy of every such account or of any part thereof, on paying
therefor after the rate of twopence for every seventy-two words
or figures.

Section 17 of the Act of 1853 (16 & 17 Viet. c. 137), requires
that notice of legal proceedings as to any charity instituted by
any person except the Attorney-General should be given to the
Board, and proceeds to enact that —

" No suit, petitioner other proceeding for obtaining any such
relief, order, or direction, as last aforesaid (i.e., concerning any
charity), shall be entertained or proceeded with by the Court of
Chancery, or by any Court or judge, except upon and in confor-
mity with an order or certificate of the said Board."

Proceedings by persons claiming adversely and by the
Attorney-General acting ex officio are excepted from this
provision.

Section 29 of the Act of 1855 (18 & 19 Yict. c. 124), put
restrictions on the sale, mortgage or lease of charity estates to
the trustees.

Restrictions of Charges and Leases of Charity Estates.

XXIX. It shall not be lawful for the trustees or persons acting
in the administration of any charity to make or grant, otherwise
than with the express authority of Parliament, under any Act
already passed or which may hereafter be passed, or of a Court or
judge of competent jurisdiction, or according to a scheme legally
established, or with the approval of the Board, any sale, mortgage,
or charge of the charity estate, or any lease thereof in reversion
after more than three years of any existing term, or for any term
of life, or in consideration wholly or in part of any fine, or for any
term of years exceeding twenty-one years.

The judicial powers of the Board were conferred on them by
the Act of 1860 (23 & 24 Viet. c. 136, s. 2).

TBUSTS AND BEQUESTS. 165

This important section is as follows : —

The Board of Charity Commissioners for England and Wales,
subject to the restrictions and rights of appeal herein-after pro-
vided, shall have power from time to time, upon the application of
any person or persons who, under the forty-third section of " The
Charitable Trusts Act, 1853," might be authorized to apply to any
judge or Court for the like purposes,* to make such effectual
orders as may now be made by any judge of the Court of Chancery
sitting at chambers, or by any county court or district court of
bankruptcy, for the appointment or removal of trustees of any
charity, or for the removal of any schoolmaster or mistress or
other officer thereof, or for or relating to the assurance, transfer,
payment, or vesting of any real or personal estate belonging
thereto, or entitling the official trustees of charitable funds, or any
other trustees, to call for a transfer of and to transfer any stock
belonging to such estate, or for the establishment of any scheme
for the administration of any such charity.

These powers, however, are not to be exercised in the case of
charities with an income exceeding £50, except on the appli-
cation of the trustees (s. 4), and the Board are not to exercise
this jurisdiction in any case which " by reason of its contentious
character, or of any special questions of law or fact, which it may
involve, or for other reasons, they may consider more fit to be
adjudicated on by any of the Judicial Courts."

The above section leaves the old jurisdiction of the Court
untouched, but as such applications to the Court can only be
made after the certificate of the Board has been obtained, and
as the proceedings before the Board are much more convenient
and inexpensive, nearly all such applications are now in
prac tice made to the Board.

The most important of these powers is that of sanctioning
variations in the prescribed mode of giving effect to the objects
of the charity. This jurisdiction enables the Board to provide
new schemes, where the original objects of the charity have
failed absolutely, or where lapse of time or change of circum-
stances have rendered it inexpedient to adhere closely to the
original objects. In the exercise of this discretion, the

" All or any one of the trustees or persons administering or claiming to
administer, or interested in any charity which shall be the subject of such
application, or any two or more inhabitants of any parish or place within
which the charity is administered or applicable."

166 THE LAW SPECIALLY AFFECTING CATHOLICS.

founder's intentions must be regarded as far as is possible and
practicable.

Other provisions of the Charitable Trusts Acts may be briefly
referred to. Section 16 of the Act of 1853 authorises the
Board to receive applications for advice in the management of
charities, and indemnifies persons acting on such advice ; s. 23
enables the Board to authorise building leases, working of
mines, &c., in the charity property ; s. 23 authorises the Board
to sanction a compromise of claims on behalf of the charity, and
the sale or exchange of charity lands.

By various provisions of the Charitable Trusts Act, official
trustees of charitable funds have been constituted to whom
stocks, shares, securities, and monies may be paid over. " Such
trustees have no power to interfere in the administration of the
income, or in the management of any charity, and their duty is
confined to remitting periodically the dividends and income of
the fund standing in their name, free from income tax, by
drafts on the Bank of England, through a banker or otherwise,
to or according to the order of the administering trustees of the
charity in trust for which the funds are held for the purpose of
being applied by them to the objects of the trust." *

Such a transfer secures the preservation of the trust funds
intact, and the indemnity of the trustees, besides saving the
charity the expense of periodical transfers of stock on the
appointment of new trustees. Accordingly charitable trustees
have largely taken advantage of their provisions.

It is to be observed that by s. 62 of the Act of 1853 every
" building registered as a place of meeting for religious worship
with the Eegistrar-General of births, deaths, and marriages in
England and Wales, and bond fide used as a place of meeting for
religious worship," is exempted from the Charitable Trusts Acts.
This exemption, however, is partially removed by s. 15 of the
Act of 1869 (32 & 33 Viet. c. 110), which gives the Board
jurisdiction over places of worship so far as relates to the
appointment and removal of trustees, the vesting of real or
personal estate, and the establishment of schemes,

* Charity Commission Forms, No. 17*

TBUSTS AND BEQUESTS. 167

Section 62 of the Act of 1853 also contains an exemption in
favour of charities supported by voluntary contributions.

Provisions as to Charities supported partly by voluntary Subscriptions.

" Where any charity is maintained partly by voluntary sub-
scriptions and partly by income arising from any endowment, the
powers and provisions of the Act shall, with respect to such
charity, extend and apply to the income from endowment only, to
the exclusion of voluntary subscriptions, and the application
thereof; and no donation or bequest unto or in trust for any such
charity as last aforesaid, of which no special application or appro-
priation shall be directed or declared by the donor or testator, and
which may legally be applied by the governing or managing body
of such charity as income in aid of the voluntary subscriptions,
shall be subject to the jurisdiction or control of the said Board, or
the powers or provisions of this Act ; and no portion of any such
donation or bequest as last aforesaid, or of any voluntary sub-
scription, which is now or shall or may from time to time be set
apart or appropriated and invested by the governing or managing
body of the charity, for the purpose of being held and applied or
expended for or to some defined and specific object or purpose con-
nected with such charity, in pursuance of any rule or resolution
made or adopted by the governing or managing body of such
charity, or of any donation or bequest in aid of any fund so set
apart or appropriated for any such object or purpose as aforesaid,
shall be subject to the jurisdiction or control of the said Board or
the powers or provisions of this Act."

By a recent Act (54 & 55 Viet. c. 17) the Board is empowered
itself to institute proceedings on behalf of any charity for the
recovery of property the gross annual income of which does not
exceed £20, and which appears to the Board to belong to the
charity.

The principal powers possessed by the Charity Commissioners
have now been enumerated. More detailed information must
be sought in the standard works on the subject.*

* See Mitcheson's 'Charity Commission Acts,' and Tudor's 'Charitable
Trusts.'

( 169 )

APPENDICES.

APPENDIX A.*

CATHOLIC RELIEF ACT (10 GEO. 4. c. 7.)f

WHEREAS by various Acts of Parliament certain restraints and
disabilities are imposed on the Roman Catholic subjects of his
Majesty, to which other subjects of his Majesty are not liable : and
whereas it is expedient that such restraints and disabilities shall
be from henceforth discontinued: and whereas by various Acts
certain oaths and certain declarations, commonly called the
declaration against transubstantiation, and the declaration against
transubstantiation and the invocation of saints and the sacrifice of
the mass, as practised in the Church of Rome, are or may be
required to be taken, made, and subscribed, by the subjects of
his Majesty, as qualifications for sitting and voting in Parliament,
and for the enjoyment of certain offices, franchises, and civil rights :
be it enacted by the King's most excellent Majesty, by and with the advice
and consent of the Lords spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, that
from and after the commencement of this Act all such parts of the said
Acts as require the said declarations, or either of them, to be made or
subscribed by any of his Majesty' 's subjects, as a qualification for sitting
and voting in Parliament, or for the exercise or enjoyment of any office,
franchise, or civil right, be and the same are (save as hereinafter
provided and excepted) hereby repealed.

II. And be it enacted, that from and after the commencement of
this Act it shall be lawful for any person professing the Roman
Catholic religion, being a peer, or who shall after the commence-
ment of this Act be returned as a member of the House of
Commons, to sit and vote in either House of Parliament respectively,
being in all other respects duly qualified to sit and vote therein,

* See above, p. 33.

f The parts printed in italics are now repealed. The repealing Act, unless
where otherwise stated, is 34 & 35 Viet. c. 48.

170 APPENDIX A.

upon taking and subscribing the following oath, instead of the oaths of
allegiance, supremacy, and abjuration :

" /, A. B., do sincerely promise and swear that J will be faithful
and bear true allegiance to his Majesty King George the Fourth, and ivill
defend him to the utmost of my power against all conspiracies and
attempts whatever t which shall be made against his person, crown, or
dignity ; and I will do my utmost endeavour to disclose and malce
known to his Majesty, his heirs and successors, all treasons and traitorous
conspiracies ivhich may be formed against him or them : and I do
faithfully promise to maintain, support, and defend, to the utmost of my
power, the succession of the Crou;n, ivhich succession, by an Act, intituled
An Act for the further Limitation of the Crown, and better securing the
Rights and Liberties of the Subject, is and stands limited to the Princess
Sophia, Electress of Hanover, and the heirs of her body, being Protes-
tants ; hereby utterly renouncing and abjuring any obedience or
allegiance unto any other person claiming or pretending a right to the
Crown of this realm : and I do further declare, that it is not an article
of my faith, and that I do renounce, reject, and abjure the opinion, that
princes excommunicated, or deprived by the Pope, or any other authority
of the See of Home, may be deposed or murdered by their subjects, or by
any person whatsoever : and I do declare, that I do not believe that the
Pope of Home, or any other foreign prince, prelate, person, state, or
potentate, hath or ought to have any temporal or civil jurisdiction,
power t superiority, or pre-eminence, directly or indirectly, within this
realm. I do swear, that I will defend to the utmost of my power the
settlement of property within this realm, as established by the laws : and
I do hereby disclaim, disavow, and solemnly abjure, any intention to
subvert the present church establishment as settled by law within this
realm : and I do solemnly swear, that I never will exercise any privilege
to which I am or may become entitled, to disturb or weaken the
Protestant religion or Protestant government in the United Kingdom :
and I do solemnly, in the presence of God, profess^ testify, and declare,
that I do malce this declaration, and every part thereof, in the plain and
ordinary sense of the words of this oath, without any evasion, equivo-
cation, or mental reservation whatsover. So help me, God."

III. And be it further enacted, that wherever in the oath hereby
appointed and set forth, the name of his present Majesty is expressed or
referred to, the name of the sovereign of this kingdom for the time being,
by virtue of the Act for the further limitation of the Crown and better
securing the rights and liberties of the subject, shall be substituted from
time to time, with proper words of reference thereto.

IV. Provided always, and be it further enacted, that no peer pro-
fessing the Roman Catholie religion, and no person professing the
Roman Catholic religion, who shall be returned a member of the House
of Commons after the commencement of this Act, shall be capable of
sitting or voting in either House of Parliament respectively, unless he
shall first take and subscribe the oath herein-before appointed and set
forth, before the same persons, at the same times and places, and in the
same manner as the oaths and the declaration now required by latv are

APPENDIX A. 171

respectively directed to be taken, made, and subscribed ; and that any
such person professing the Roman Catholic religion, ivho shall sit or vote
in either Souse of Parliament, without having first talcen and subscribed,
in the manner aforesaid, the oath in this Act appointed and set forth,
shall be subject to the same penalties, forfeitures, and disabilities, and
the offence of so sitting or voting shall be followed and attended by and
ivith the same consequences, as are by law enacted and provided in the
case of persons sitting or voting in either House of Parliament respectively,
ivithout the taking, making, and subscribing the oaths, and the declaration
now required by law.

V. And be it further enacted, that it shall be lawful for persons
professing the Roman Catholic religion to vote at elections of
members to serve in Parliament for England and for Ireland, and
also to vote at the elections of representative peers of Scotland and
of Ireland, and to be elected such representative peers, being in all
other respects duly qualified, upon taking and subscribing the oath
herein-before appointed and set forth, instead of the oaths of allegiance,
supremacy, and abjuration, and instead of the declaration now by law
required, and instead also of such other oath or oaths as are now by law
required to be taken by any of his Majesty's subjects professing the
Roman Catholic religion, and upon taking also such other oath or oaths
as may now be lawfully tendered to any persons offering to vote at such
elections.

VI. And be it further enacted, that the oath herein-before appointed
and set forth shall be administered to his Majesty's subjects professing
the Roman Catholic religion, for the purpose of enabling them to vote in
any of the cases aforesaid, in the same manner, at the same time, and
by the same officers or other persons as the oaths for which it is hereby
substituted are or may be now by law administered; and that in all
cases in which a certificate of the taking, making, or subscribing, of any
of the oaths or of the declaration now required by law is directed to be
given, a like certificate of the taking or subscribing of the oath hereby
appointed and set forth shall be given by the same officer or other person,
and in the same manner as the certificate now required by law is directed
to be given, and shall be of the like force and effect.

VII. And be it further enacted, that in all cases where the persons
now authorised by law to administer the oaths of allegiance, supremacy,
and abjuration to persons voting at elections, are themselves required to
take an oath previous to their administering such oaths, they shall, in
addition to the oath now by them taken, take an oath for the duly
administering the oath hereby appointed and set forth, and for the duly
granting certificates of the same.

VIII. And whereas in an Act of the Parliament of Scotland
made in the eighth and ninth session of the first Parliament of
King William the Third, intituled " An Act for the preventing
the Growth of Popery," a certain declaration or formula is therein
contained, which it is expedient should no longer be required to
be taken and subscribed : be it therefore enacted, that such parts
of any Acts as authorise the said declaration or formula to be

172 APPENDIX A.

tendered, or require the same to be taken, sworn, and subscribed,
shall be and the same are hereby repealed, except as to such
offices, places, and rights as are herein-after excepted ; and that
from and after the commencement of this Act it shall be lawful
for persons professing the Roman Catholic religion to elect and
be elected members to serve in Parliament for Scotland, and to be
enrolled as freeholders in any shire or stewartry of Scotland, and
to be chosen commissioners or delegates for choosing burgesses to
serve in Parliament for any districts or burghs in Scotland, being
in all other respects duly qualified, such persons always taking and
subscribing the oath herein-before appointed and set forth, instead of the
oaths of allegiance and abjuration as now required by law, at such time
as the said last-mentioned oaths, or either of them, are now required by
law to be taken.

IX. And be it further enacted, that no person in holy orders in
the Church of Rome shall be capable of being elected to serve in
Parliament as a member of the House of Commons ; and if any
such person shall be elected to serve in Parliament as aforesaid,
such election shall be void ; and if any person, being elected to
serve in Parliament as a member of the House of Commons shall,
after his election, take or receive holy orders in the Church of
Rome, the seat of such person shall immediately become void;
and if any such person shall, in any of the cases aforesaid, presume
to sit or vote as a member of the House of Commons, he shall be
subject to the same penalties, forfeitures, and disabilities as are
enacted by an Act passed in the forty-first year of the reign of
King George the Third, intituled " An Act to remove Doubts
respecting the Eligibility of Persons in Holy Orders to sit in the
House of Commons ; " and proof of the celebration of any religious
service by such person, according to the rights of the Church of
Rome, shall be deemed and taken to be primd facie evidence of the
fact of such person being in holy orders, within the intent and
meaning of this act.

X. And be it enacted, that it shall be lawful for any of his
Majesty's subjects professing the Roman Catholic religion to hold,
exercise, and enjoy, all civil and military offices and places of
trust or profit under his Majesty, his heirs or successors ; and to
exercise any other franchise or civil right, except as herein-after
excepted, upon taking and subscribing, at the times and in the manner
herein-after mentioned, the oath herein-before appointed and set forth,
instead of the oaths of allegiance, supremacy, and abjuration, and
instead of such other oath or oaths as are or may be now by law required
to be taken for the purpose aforesaid by any of his Majesty's subjects
professing the Roman Catholic religion.

XL Provided always, and be it enacted, that nothing herein
contained shall be construed to exempt any person professing the
Roman Catholic religion from the necessity of taking any oath or
oaths, or making any declaration, not herein-before mentioned,
which are or may be by law required to be taken or subscribed by

APPENDIX A. 173

any person on his admission into any such office or place of trust
or profit as aforesaid.

XII. Provided also, and be it further enacted, that nothing
herein contained shall extend or be construed to extend to enable
any person or persons professing the Roman Catholic religion to
hold or exercise the office of guardians and justices of the United
Kingdom, or of Eegent of the United Kingdom, under whatever
name, style, or title such office may be constituted ; nor to enable
any person, otherwise than as he is now by law enabled, to hold or
enjoy the office of Lord High Chancellor, Lord Keeper or Lord Com-
missioner of the Great Seal of Great Britian or Ireland,* or the office
of Lord-Lieutenant, or Lord Deputy, or other chief governor or
governors of Ireland ; or his Majesty's High Commissioner to the
General Assembly of the Church of Scotland.

XIII. Provided also, and be it further enacted, that nothing herein
contained shall be construed to affect or alter any of the provisions of
an Act passed in the seventh year of his present Majesty's reign,
intituled " An Act to consolidate and amend the Laws which regulate
the Levy and Application of Church Rates and Parish Cesses, and the
Election of Churchwardens, and the Maintenance of Parish ClerJcs, in
Ireland." f

XIV. And be it enacted, that it shall be lawful for any of his
Majesty's subjects professing the Roman Catholic religion to be a
member of any lay body corporate, and to hold any civil office or
place of trust or profit therein, and to do any corporate act, or vote
in any corporate election or other proceeding, upon taking and
subscribing the oath hereby appointed and set forth, instead of the Oaths
of Allegiance, Supremacy, and Abjuration : and upon taking also
such other oath or oaths as may now by law be required to be
taken by any persons becoming members of such lay body cor-
porate, or being admitted to hold any office or place of trust or
profit within the same.

XV. Provided nevertheless, and be it further enacted, that
nothing herein contained shall extend to authorize or empower
any of his Majesty's subjects professing the Roman Catholic
religion, and being a member of any lay body corporate, to give
any vote at, or in any manner to join in the election, presentation,
or appointment of any person to any ecclesiastical benefice what-
soever, or any office or place belonging to or connected with the
united Church of England and Ireland, or the Church of Scotland,
being in the gift, patronage, or disposal of such lay corporate
body.

XVI. Provided also, and be it enacted, that nothing in this Act
contained shall be construed to enable any persons, otherwise than
as they are now by law enabled, to hold, enjoy, or exercise any
office, place, or dignity of, in, or belonging to, the united Church
of England and Ireland, or the Church of Scotland, or any place or

* Virtually rep. 30 & 31 Viet, c. 75, s. 1. f Kep. 54 & 55 Viet. c. 67.

174 APPENDIX A.

office whatever of, in, or belonging to, any of the Ecclesiastical
Courts of judicature of England and Ireland respectively, or any
court of appeal from or review of the sentences of such courts, or
of, in, or "belonging to, the Commissary Court of Edinburgh, or of,
in, or belonging to, any cathedral or collegiate or ecclesiastical es-
tablishment, or foundation ; or any office or place whatever of, in, or
belonging to, any of the universities of this realm : or * any office
or place whatever, and by whatever name the same may be called, of,
in, or belonging to, any of the colleges or halls of the said univer-
sities, or the colleges of Eton, Westminster, or Winchester, or any
college or school within this realm ; or to repeal, abrogate, or in any
manner to interfere with any local statute, ordinance, or rule,
which is or shall be established by competent authority within
any university, college, hall, or school, by which Roman Catholics
shall be prevented from being admitted thereto, or from residing
or taking degrees therein : Provided also, that nothing herein
contained shall extend or be construed to extend to enable any
person, otherwise than as he is now by law enabled, to exercise
any right of presentation to any ecclesiastical benefice whatsoever ;
or to repeal, vary, or alter in any manner the laws now in force in
respect to the right of presentation to any ecclesiastical benefice.

XVII. Provided always, and be it enacted, that where any
right of presentation to any ecclesiastical benefice shall belong to
any office in the gift or appointment of his Majesty, his heirs or
successors, and such office shall be held by a person professing the
Roman Catholic religion, the right of presentation shall devolve
upon and be exercised by the Archbishop of Canterbury for the
time being.

XVIII. And be it enacted, that it shall not be lawful for any
person professing the Roman Catholic religion, directly or in-
directly, to advise his Majesty, his heirs or successors, or any
person or persons holding or exercising the office of guardians of
the United Kingdom, or of Regent of the United Kingdom, under
whatever name, style, or title such office may be constituted, or
the Lord-Lieutenant, or Lord Deputy, or other chief governor or
governors of Ireland, touching or concerning the appointment to
or disposal of any office or preferment in the united Church of
England and Ireland, or in the Church of Scotland; and if any
such person shall offend in the premises, he shall, being thereof
convicted by due course of law, be deemed guilty of a high
misdemeanor, and disabled for ever from holding any office, civil
or military, under the Crown.

XIX. And be it enacted, that every person professing the Roman
Catholic religion, who shall after the commencement of this Act be
placed, elected, or chosen in or to the office of mayor, provost, alderman,
recorder, bailiff, town clerk, magistrate, councillor, or common council-
man, or in or to any office of magistracy or place of trust or

* Bo much of the Act as relates to any of the Universities of Oxford,
Cambridge, and Durliam, or any college therein, rep. 34 & 35 Viet. c. 26, s. 8.

APPENDIX A. 175

employment relating to the government of any city, corporation, borough,
burgh, or district within the United Kingdom of Great Britain and
Ireland, shall, within one calendar month next before or upon his
admission into any of the same respectively, take and subscribe the oath
herein-before appointed and set forth, in the presence of such person or
persons respectively as by the charters or usages of the said respective
cities, corporations, burghs, boroughs, or districts ought to administer the
oath for due execution of the said offices or places respectively ; and in
default of such in the presence of two justices of the peace, councillors or
magistrates of the said cities, corporations, burghs, boroughs, or districts,
if such there be ; or otherwise, in the presence of two justices of the
peace of the respective counties, ridings, divisions, or franchises ivherein
the said cities, corporations, burghs, boroughs, or districts are ; ivhich
said oath shall either be entered in a book, roll, or other record to be
kept for that purpose, or shall be filed amongst the records of the city,
corporation, burgh, borough, or district.

XX. And be it enacted, that every person professing the Roman
Catholic religion, who shall after the commencement of this Act be
appointed to any office or place of trust or profit under his Majesty, his
heirs or successors, shall within three calendar months next before such
appointment, or otherwise shall, before he presumes to exercise or enjoy
or in any manner to act in such office or place, take and subscribe the
oath herein-before appointed and set forth, either in his Majesty's high
court of Chancery, or in any of his Majesty's courts of King's Bench,
Common Pleas, or Exchequer, at Westminster or Dublin ; or before any
judge of assize, or in any court of general or quarter sessions of the
peace in Great Britain or Ireland, for the county or place ichere the
person so taking and subscribing the oath shall reside ; or in any of his
Majesty's courts of session, justiciary, Exchequer, or jury court, or in
any sheriff or Stewart court, or in any burgh court, or before the
magistrates and councillors of any royal burgh in Scotland, between the
hours of nine in the morning and four in the afternoon ; and the proper
officer of the court in which such oath shall be so taken and subscribed
shall cause the same to be preserved amongst the records of the court ;
and such officer shall make, sign, and deliver a certificate of such oath
having been duly taken and subscribed, as often as the same shall be
demanded of him, upon payment of 2s. 6d. for the same ; and such
certificate shall be sufficient evidence of the person therein named having
duly taken and subscribed such oath.

XXL And be it enacted, that if any person professing the Roman
Catholic religion shall enter upon the exercise or enjoyment of any office
or place of trust or profit under his Majesty, or of any other office or
franchise, not having in the manner and at the times aforesaid taken
and subscribed the oath herein-before appointed and set forth, then and
in every such case such person shall forfeit to his Majesty the sum of
20 01.; and the appointment of such person to the office, place, or
franchise so by him held, shall become altogether void, and the office,
place, or franchise shall be deemed and taken to be vacant to all intents
and purposes whatsoever.

176 APPENDIX A.

XXII. Provided always, that for and notwithstanding any thing in
this Act contained, the oath herein-before appointed and set forth, shall
be taken by the officers in his Majesty's land and sea service, professing
the Roman Catholic religion, at the same times and in the same manner
as the oaths and declarations now required by law are directed to be
taken, and not otherwise.

XXIII. And be it further enacted, that from and after the
passing of this Act no oath or oaths shall be tendered to or required
to be taken by his Majesty's subjects professing the Roman
Catholic religion, for enabling them to hold or enjoy any real or
personal property, other than such as may by law be tendered to
and required to be taken by his Majesty's other subjects ; and that
the oath herein appointed and set forth, being taken and subscribed in
any of the courts, or before any of the persons above mentioned, shall
be of the same force and effect, to all intents and purposes, as, and shall
stand in the place of, all oaths and declarations required or prescribed
by any law now in force for the relief of his Majesty's Roman Catholic
subjects from any disabilities, incapacities, or penalties ; and the proper
officer of any of the courts above mentioned, in which any person
professing the Roman Catholic religion shall demand to take and
subscribe the oath herein appointed and set forth, is hereby authorized
and required to administer the said oath to such person, and such officer
shall make, sign, and deliver a certificate of such oath having been duly
taken and subscribed, as often as the same shall be demanded of him,
upon payment of Is. ; and such certificate shall be sufficient evidence of
the person therein named having duly taken and subscribed such oath.

XXIV. And whereas the Protestant Episcopal Church of England
and Ireland, and the doctrine, discipline, and government thereof,
and likewise the Protestant Presbyterian Church of Scotland, and
the doctrine, discipline, and government thereof, are by the
respective Acts of Union of England and Scotland, and of Great
Britain and Ireland, established permanently and inviolably :
And whereas the right and title of archbishops to their respective
provinces, of bishops to their sees, and of deans to their deaneries,
as well in England as in Ireland, have been settled and established
by law : Be it therefore enacted, that if any person, after the
commencement of this Act, other than the person thereunto
authorized by law, shall assume or use the name, style, or title of
archbishop of any province, bishop of any bishoprick, or dean of
any deanery, in England or Ireland, he shall for every such offence
forfeit and pay the sum of 100Z.

XXV.* And be it further enacted, that if any person holding any
judicial or civil office, or any mayor, provost, jurat, bailiff, or other
corporate officer, shall, after the commencement of this Act, resort to or
be present at any place or public meeting for religious worship in
England or in Ireland, other than that of the united Church of England
and Ireland, or in Scotland, other than that of the Church of Scotland,
as by law established, in the robe, gown, or other peculiar habit of his
* Hep. 34 & 35 Viet. c. 48.

APPENDIX A. 177

office, or attend with the ensign or insignia, or any part thereof, of or
belonging to such his office, such person snail, being thereof convicted by
due course of law, forfeit such office, and pay for every such offence the
sum of 100Z.

XXVI. And be it further enacted, that if any Eoman Catholic
ecclesiastic, or any member of any of the orders, communities, or
societies herein-after mentioned, shall, after the commencement of
this act, exercise any of the rites or ceremonies of the Eoman
Catholic religion, or wear the habits of his order, save within the
usual places of worship of the Koman Catholic religion, or in
private houses, such ecclesiastic or other person shall, being thereof
convicted by due course of law, forfeit for every such oifence the
sum of 50Z.

XXVIL* Provided always, and be it enacted, that nothing in this
Act contained shall in any manner repeal, alter, or affect any provision
of an Act made in the fifth year of his present Majesty's reign, intituled
An Act to repeal so much of an Act passed in the ninth, year of tlie
reign of King William the 3rd, as relates to burials in suppressed
monasteries, abbeys, or convents in Ireland, and to make further pro-
vision with respect to the burial in Ireland of persons dissenting from
the Established Church.

XXVIII. And whereas Jesuits, and members of other religious
orders, communities, or societies of the Church of Rome, bound
by monastic or religious vows, are resident within the United
Kingdom ; and it is expedient to make provision for the gradual
suppression and final prohibition of the same therein : Be it
therefore enacted, that every Jesuit, and every member of any
other religious order, community, or society of the Church of Borne,
bound by monastic or religious vows, who at the time of the
commencement of this Act shall be within the United Kingdom,
shall, within six calendar months after the commencement of this
act, deliver to the clerk of the peace of the county or place where
such person shall reside, or to his deputy, a notice or statement, in
the form and containing the particulars required to be set forth in
the schedule to this Act annexed ; which notice or statement such
clerk of the peace, or his deputy, shall preserve and register
amongst the records of such county or place, without any fee, and
shall forthwith transmit a copy of such notice or statement to the
chief secretary of the Lord-Lieutenant, or other chief governor or
governors of Ireland, if such person shall reside in Ireland, or if
in Great Britain, to one of his Majesty's principal Secretaries of
State ; and in case any person shall offend in the premises, he shall
forfeit and pay to his Majesty, for every calendar month during
which he shall remain in the United Kingdom without having
delivered such notice or statement as is herein-before required,
the sum of 50/.

XXIX. And be it further enacted, that if any Jesuit, or member
of any such religious order, community, or society as aforesaid,

* Rep. 53 & 54 Viet. c. 33.

178 APPENDIX A.

shall, after the commencement of this Act, come into this realm, he
shall be deemed and taken to be guilty of a misdemeanor, and
being thereof lawfully convicted, shall be sentenced and ordered
to be banished from the United Kingdom for the term of his
natural life.

XXX. Provided always, and be it further enacted, that in case
any natural-born subject of this realm, being at the time of the
commencement of this Act a Jesuit, or other member of any such
religious order, community, or society as aforesaid, shall, at the
time of the commencement of this Act, be out of the realm, it shall
be lawful for such person to return or to come into this realm ;
and upon such his return or coming into the realm he is hereby
required, within the space of six calendar months after his first
returning or coming into the United Kingdom, to deliver such
notice or statement to the clerk of the peace of the county or place
where he shall reside, or his deputy, for the purpose of being so
registered and transmitted, as herein-before directed ; and in case
any such person shall neglect or refuse so to do, he shall for such
offence forfeit and pay to his Majesty, for every calendar month
during which he shall remain in the United Kingdom without
having delivered such notice or statement, the sum of 50Z.

XXXI. Provided also, and be it further enacted, that, notwith-
standing anything herein-before contained, it shall be lawful for
any one of his Majesty's principal Secretaries of State, being a
Protestant, by a licence in writing, signed by him, to grant
permission to any Jesuit, or member of any such religious order,
community, or society as aforesaid, to come into the United King-
dom, and to remain therein for such period as the said Secretary of
State shall think proper, not exceeding in any case the space of
six calendar months ; and it shall also be lawful for any of his
Majesty's principal Secretaries of State, to revoke any licence so
granted before the expiration of the time mentioned therein, if he
shall so think fit ; and if any such person to whom such licence
shall have been granted shall not depart from the United Kingdom
within twenty days after the expiration of the time mentioned in
such licence, or if such licence shall have been revoked, then
within twenty days after notice of such revocation shall have been
given to him, every person so offending shall be deemed guilty of
a misdemeanor, and being thereof lawfully convicted, shall be
sentenced and ordered to be banished from the United Kingdom
for the term of his natural life.

XXXII. And be it further enacted, that there shall annually
be laid before both Houses of Parliament an account of all such
licences as shall have been granted for the purpose herein-before
mentioned within the twelve months then next preceding.

XXXIII. And be it further enacted, that in case any Jesuit, or
member of any such religious order, community, or society as
aforesaid, shall, after the commencement of this Act, within any
part of the United Kingdom, admit any person to become a regular

APPENDIX A. 179

ecclesiastic, or brother, or member of any such religious order,
community, or society, or be aiding or consenting thereto, or shall
administer or cause to be administered, or be aiding or assisting in
the administering or taking, any oath, vow, or engagement pur-
porting or intended to bind the person taking the same to the
rules, ordinances, or ceremonies of such religious order, community,
or society, every person offending in the premises in England or
Ireland shall be deemed guilty of a misdemeanor, and in Scotland
shall be punished by fine and imprisonment.

XXXIV. And be it further enacted, that in case any person
shall, after the commencement of this Act, within any part of this
United Kingdom, be admitted or become a Jesuit, or brother, or
member of any other such religious order, community, or society
as aforesaid, such person shall be deemed and taken to be guilty
of a misdemeanor, and being thereof lawfully convicted shall be
sentenced and ordered to be banished from the United Kingdom
for the term of his natural life.

XXXV. And be it further enacted, that in case any person
sentenced and ordered to be banished under the provisions of this
Act shall not depart from the United Kingdom within thirty days
after the pronouncing of such sentence and order, it shall be lawful
for his Majesty to cause such person to be conveyed to such place
out of the United Kingdom as his Majesty, by the advice of his
privy council, shall direct.

XXXVI. And be it further enacted, that if any offender, who
shall be so sentenced and ordered to be banished in manner afore-
said, shall, after the end of three calendar months from the time
such sentence and order hath been pronounced, be at large within
any part of the United Kingdom, without some lawful cause,
every such offender being so at large as aforesaid, on being thereof
lawfully convicted, shall be transported to such place as shall be
appointed by his Majesty, for the term of his natural life.

XXXVII. Provided always, and be it enacted, that nothing
herein contained shall extend or be construed to extend in any
manner to affect any religious order, community, or establishment
consisting of females bound by religious or monastic vows.

XXXVIII. And be it further enacted, that all penalties imposed
by this Act shall and may be recovered as a debt due to his
Majesty, by information to be filed in the name of his Majesty's
Attorney-General for England or for Ireland, as the case may be,
in the courts of Exchequer in England or Ireland respectively, or
in the name of his Majesty's Advocate-General in the court of
Exchequer in Scotland.

XXXIX. And be it further enacted, that this Act, or any part thereof,
may be repealed, altered, or varied at any time within this present
session of Parliament.

XL. And be it further enacted, that this Act shall commence and
take, effect at the expiration of ten days from and after the passing
thereof.

N 2

( 180 )

APPENDIX B.*

11 & 12 VICT. c. 108.

An Act for enabling Her Majesty to establish and maintain Diplomatic
Relations with the Sovereign of the Homan States.

[4th September, 1848.]

WHEREAS doubts exist whether her Majesty can lawfully establish
and maintain diplomatic relations and hold diplomatic intercourse
with the Sovereign of the Roman States ; and it is expedient that
such doubts should be removed : Be it therefore declared and
enacted by the Queen's most excellent Majesty, by and with the
advice and consent of the lords spiritual and temporal, and
commons, in this present Parliament assembled, and by the
authority of the same, that, notwithstanding anything contained
in any Act or Acts now in force, it shall be lawful for her Majesty,
her heirs and successors, to establish and maintain diplomatic
relations and to hold diplomatic intercourse with the Sovereign of
the Roman States.

II. Provided always, and be it enacted, that it shall not be
received as lawful for her Majesty, her heirs or successors, to receive at the
bassador, Court of London, as ambassador, envoy extraordinary, minister

plenipotentiary, or other diplomatic agent, accredited by the
Sovereign of the Roman States, any person who shall be in Holy
Orders in the Church of Rome, or a Jesuit or member of any
other religious order, community, or society of the Church of
Rome, bound by monastic or religious vows.

III. Provided always, and be it enacted, that nothing herein
contained shall repeal, weaken, or affect, or be construed to repeal,

tor u - wea^en' or affect, any laws or statutes, or any part of any laws or
Iding the statutes, now in force for preserving and upholding the supremacy
premacy of of our lady the Queen, her heirs and successors, in all matters civil
o Crown. and ecclesiastical within this realm and other her Majesty's
dominions, nor those laws or parts of laws now in force which
have for their object to control, regulate, and restrain the acts and
conduct of her Majesty's subjects, and to prohibit their communi-
cations with the sovereigns of foreign states on the said matters,
all which laws and statutes ought for ever to be maintained for the
dignity of the Crown and the good of the subject.

* See above, p. 35.

r Majesty
powered
sstablish
ilomatic
ations
;h the
rereign of
s Eoman
ites.

person to

from the
urtof
me who
ill be in
>ly Orders,

)thing to
feet any

APPENDIX C.*

Eeligious Disqualifications for Offices. — Question.

SIR COLMAN O'LoGHLEN asked Mr. Attorney- General, If, accord- Hansard's
ing to existing law, any religious qualification is necessary for Debates,
the office of Lord Chancellor of England or Lord-Lieutenant of 3°ge^s'
Ireland ; and especially whether a Roman Catholic or a Jew, or pp 2so, 283.
either of them, is elegible to hold either or both of said offices ? May 6/1872

THE ATTORNEY-GENERAL said, in reply, that he must preface his H. 0.
answer by a famous story about Lord Coke, who, being asked by
James I. a question of law, desired to know in return whether it
was one of common law or statute law? — because, he said, if it
were one of common law he could answer it in bed, but if it were
one of statute law he must get up and examine the statutes. The
right hon: and learned member had asked him a complex question
— whether a Eoman Catholic could hold the office of Lord Chan-
cellor of England or Lord-Lieutenant of Ireland, or whether a Jew
could hold either office ?

The answer to the four questions involved might not be the same
in each case. The first question respecting the Lord Chancellor of
England divided itself into two others. Eoman Catholics were in
the first instance excluded from holding the office of Lord Chan-
cellor of England by the operation of the oaths of abjuration,
allegiance, and supremacy, and by the necessity imposed upon him
by the statute of making the declaration against transubstantia-
tion. These disabilities appear to have been first created by the
25 Chas. 2, c. 2, which imposed on all holders of office civil
and military, and among them the Lord Chancellor, the necessity
of taking those oaths and making that declaration in the legal
term next after their elevation to such office ; and by the 30 Chas. 2,
st. 2, c. 1, the oaths and declaration were imposed on peers and
members of the House on taking their seats. The 1 Geo. 1, st. 2, c. 13,
extended the oaths and declaration on ecclesiastical persons, heads
of colleges, schoolmasters, barristers, attorneys, and all legal
persons in the same manner as those imposed by the statute of
Charles II., but extended the time to three months ; and so the
law remained until the 9 Geo. 2, c. 26, ss. 3, 4 and 6, which
re-enacted the provisions of the Act of Charles II., but the time
was extended to six months. That was the state of the law till

* See above, p. 37.

182 APPENDIX C.

the 26 & 27 Viet. c. 125, which comprised in its schedule among
the statutes totally repealed the statute of 25 Charles II. ; but the
body of the Act contained the proviso that the repeal of any Act
contained in the schedule should not affect any enactment derived
from, or incorporated with, such repealed statutes. The 29 & 30
Viet. c. 19, known as " The Parliamentary Oaths Act," repealed all
that was left of the statute of Charles II. ; but the statutes of the
two Georges remained, except as they were altered by the Parlia-
mentary Oaths Act. Then came the statute of 30 & 31 Viet. c. 62,
and it was upon the construction of that statute that the question
as to the effect of the declaration against transubstantiation on the
office of Lord Chancellor of England and Lord-Lieutenant of
Ireland must ultimately turn. The statute absolutely abolished
the declaration, and repealed all Acts requiring it to be taken as a
qualification for office by all persons whatsoever ; but then the
second section declared that nothing in the Act should be construed
as enabling persons professing the Eoman Catholic religion to hold
any civil offices other than those they were at that time entitled
to hold. The question was, whether the statutes imposing the
declaration and oaths were abolished against all persons but
Eoman Catholics ? By a subsequent statute all restrictions were
abolished, and therefore Roman Catholics would by the effect of
that statute be eligible to hold office ; but if the true construction
were that the old statutes were absolutely repealed, and that the
effect of the second section was to re-enact them de novo as re-
garded Roman Catholics only, then the Parliamentary disability
of Roman Catholics still remained. His opinion was that the
former construction was the true one, and that the statutes were
not repealed as against Roman Catholics. The 34 & 35 Viet.
c. 48 absolutely abolished the statutes of the 1 Geo. 1 and the
9 Geo. 2 without any reservation. The effect of all this, to the
best of his judgment, was, that the restrictions having been kept
alive up to that time, these two Acts undoubtedly operated to
exclude Roman Catholics. When these Acts were abolished
without restriction, the restriction against Roman Catholics went
with them, and no longer existed. He gave that as his opinion,
though a right hon. friend of his differed from him, and he (the
Attorney-General) was quite ready to receive correction with the
greatest possible humility. The Roman Catholic Relief Act was
passed in the 10th year of George IV., and it was commonly
though erroneously supposed that it excluded Roman Catholics
from certain offices. His opinion was that such an idea was
erroneous. It substitued for certain declarations which Roman
Catholics could not take certain declarations which they could
take, and it left certain offices where they were before the Act, and
the Roman Catholic Relief Act did not operate so material a
change as had been supposed. The 21 & 22 Viet, substituted one
oath for the three oaths of abjuration, allegiance, and supremacy,
which up to that time had existed. The substituted oath was just

APPENDIX C. 183

as exclusive as regarded the Roman Catholics as any of its pre-
decessors. The 31 & 32 Viet, substituted a further oath, but that
the Roman Catholics could take, and by the ninth section the Lord
Chancellor was specially referred to as a person who could take the
oath. The old oaths were gone, a substituted oath was enacted on
all classes and individuals, and if a Roman Catholic could take the
new oath he could become the Lord Chancellor. With regard to the
case of the Lord-Lieutenant, bv the statute of the 2nd of Elizabeth,
ihe Lord-Lieutenant was required to take the oath of supremacy.
That was, however, repealed by the statute of William and Mary,
and the oaths of abjuration substituted for it, and a declaration
against transubstantiation ; and the Lord-Lieutenant had to take
the oath up to 1867. If the Act of 1867 absolutely abolished all
the statutes which imposed the declarations and oaths, and re-
enacted Parliamentary disability of Roman Catholics, that dis-
ability had never been got rid of; but if the Act of 1867 was only
to repeal the disenabling Acts as regarded everybody but Roman
Catholics, then, as they had since been abolished without res-
triction, the Parliamentary disability was gone, and a Roman
Catholic might become Lord-Lieutenant. With respect to the
Jews they could always take the declaration and oaths, and what
kept the Jews out were the words "on the true faith of a
Christian ; " but as the statute of 1867 omitted these words, the
Jews could take the oath, and consequently hold any office either
in England or Ireland.

( 184 )

APPENDIX D.»

18 & 19 VICT. c. 81.

An Act to amend the Law concerning tlie certifying and registering
of Places of Religious Worship in England.

[30th July, 1855.]

1 W. & M, WHEREAS by an Act of the first session of the first year of King
Sess. 1, c. 18. William and Queen Mary, chapter eighteen, and an Act of the
521~: 3f fifty-second year of King George III., chapter one hundred and

fifty-five, places of meeting of congregations or assemblies for
religions worship of Protestants (save as therein excepted with
respect to places of worship of the Established Church and other-
wise) were required to be certified to the bishop's or archdeacon's
court, or to the general or quarter sessions of the peace, and to be
registered in such court, and recorded at such sessions : And
31 G. 3, c. 32. whereas by an Act of the thirty-first year of King George III.,
chapter thirty-two, every place of congregation or assembly for
religious worship of persons professing the Roman Catholic
religion is required to be certified to and recorded at the general
or quarter sessions of the peace : And whereas by the two
following Acts respectively, that is to say, an Act of the session

2 & 3 W. 4, holden in the second and third years of King William IV., chapter
c- US. one hundred and fifteen, and an Act of the session holden in the
9 & 10 Viet, ninth and tenth years of her Majesty, chapter fifty-nine, her
c. 59. Majesty's subjects professing the Roman Catholic religion, and

her Majesty's subjects professing the Jewish religion, in respect
of their places for religious worship, are made subject to the same
laws as Protestant Dissenters : And whereas by an Act passed in
15 & 16 Viet, the session holden in the fifteenth and sixteenth years of her
c. 36. Majesty, chapter thirty-six, places of meeting of congregations or

assemblies for religious worship of Protestant Dissenters are
required to be certified to the Registrar- General of births, deaths,
and marriages in England, and to be recorded in the General
Register Office, in lieu of being certified to and registered and
recorded in the bishop's or archdeacon's court, and at the general
or quarter sessions, as herein-before mentioned : And whereas it is
expedient that all places of religious worship, not being churches
or chapels of the Established Church, should, if the congregation

* See above, p. 52.

APPENDIX D. 185

should desire, but not otherwise, be certified to the said Registrar-
General : Be it therefore enacted by the Queen's most excellent
Majesty, by and with the advice and consent of the lords spiritual
and temporal, and commons, in this present Parliament assembled,
and by the authority of the same, as follows :

I. The said Act of the fifteenth and sixteenth years of her 15 & 16 Viet.
Majesty, chapter thirty-six, shall be repealed : Provided always, c. 36 re-
that the certifying thereunder before the passing of this Act of pealed, but
any place of meeting for religious worship shall, subject to the ^ghip
provisions hereinafter contained, have the same force and effect certified
from the time of such certifying as if the same had been duly thereunder
certified, registered, and recorded as before the passing of the said to have
Act of the fifteenth and sixteenth years of her Majesty, chapter force' ^°"
thirty-six, was required by law, and such Act and this Act had not

been passed.

II. Every place of meeting for religious worship of Protestant places of
Dissenters or other Protestants, and of persons professing the worship to be
Roman Catholic religion, by the said Acts of King William and ?frHfij:d to
Queen Mary, the thirty-first and fifty-second years of King George Q^^**"
III., and the fifteenth and sixteenth years of her Majesty, chapter
thirty-six, or any of them, required to be certified and registered

or recorded, as therein mentioned, and not heretofore certified and
registered or recorded in manner required by law, and every place
of meeting for religious worship of persons professing the Jewish
religion, not heretofore certified and registered or recorded as
aforesaid, and every place of meeting for religious worship of any
other body or denomination of persons, may be certified in writing
to the Registrar-General of births, deaths, and marriages in Eng-
land, through the Superintendent-Registrar of births, deaths, and
marriages of the district in which such place may be situate ; and
such certificate shall be in duplicate, and upon forms in accordance
with Schedule A. to this Act, or to the like effect, such forms to be
provided by the said Registrar-General, and to be obtained (with-
out payment) upon application to such Superintendent-Registrar
as aforesaid; and the said Superintendent-Registrar shall, upon
the receipt of such certificate in duplicate, forthwith transmit
the same to the said Registrar-General, who, after having caused
the place of meeting therein mentioned to be recorded as herein-
after directed, shall return one of the said certificates to the said
Superintendent-Registrar, to be re-delivered by him to the certi-
fying party, and shall keep the other certificate with the records
of the General Register Office.

III. The said Registrar-General shall cause all places of meeting Places of

for religious worship certified to him under this Act to be meeting to bo
recorded in a book to be kept by him for that purpose at the recorded-
General Register Office, and no such place of meeting as aforesaid
shall be certified to or registered in any court of any bishop or
archdeacon, or be certified to or recorded at any general or
quarter sessions ; and the certifying to the said Registrar-General

186

APPENDIX D.

Places of
meeting
already cer-
tified, save
those certi-
fied under
15 & 16 Viet.
c. 36, may be
certified to
Registrar-
General, and
be recorded by
him.

Fee of 2s. Qd.
to be paid
with certifi-
cate to Super-
intendent-Re-
gistrar.

Notice to be
given to Re-
gistrar-Gene-
ral of every
place of
meeting
becoming
disused for
the purposes
for which it
was certified.

of any such place of meeting for religious worship of Protestant
Dissenters or other Protestants or Eoman Catholics, or persons
professing the Jewish religion, and of any place of meeting for
religious worship of any other body or denomination of persons,
shall, subject to the provisions herein contained, have the same
force and effect as if such place had been duly certified and
recorded or registered and recorded as before the passing of the
said Act of the fifteenth and sixteenth years of her Majesty,
chapter thirty-six, was required by law, and such Act and this
Act had not been passed.

IV. Any place of meeting for religious worship heretofore
certified and registered or recorded in manner required by law, and
which continues to be used for religious worship, save any such
place of meeting certified to the said Eegistrar-General under the
said Act of the fifteenth and sixteenth years of her Majesty,
chapter thirty-six, may, at any time after the passing of this Act
be certified in writing to such Eegistrar-General through the
Superintendent-Eegistrar of the district in which such place may
be situate, and shall be recorded by such Eegistrar-General in
manner herein-before mentioned concerning places of meeting not
heretofore certified and registered or recorded.

V. Upon the delivery of every certificate to the Superintendent-
Eegistrar for transmission to the Eegistrar-General for the purpose
of being recorded under this Act, the person delivering the same
shall pay to such Superintendent-Eegistrar for his own use the
sum of two shillings and sixpence, and it shall not be lawful
to demand or take any greater fee or reward for the same
respectively.

VI. Whenever any place of meeting for religious worship which
may have been certified under the said Act of the fifteenth and
sixteenth years of her Majesty, chapter thirty-six, or this Act, shall
have wholly ceased to be used as a place of meeting for religious
worship, the person or one of the persons who so certified or last
certified the same (as the case may be), or the trustee or one of the
trustees for the time being of such place of meeting, or the owner
or occupier or one of the owners or occupiers thereof, shall, if then
resident within the Superintendent-Eegistrar's district within
which such place shall be situate, forthwith give notice to the
Eegistrar-General through such Superintendent-Eegistrar that such
place has so ceased to be used as a place of meeting for religious
worship, such notice to be in a form in accordance with the
Schedule B. to this Act, or to the like effect, and which form
shall be provided by the said Eegistrar-General, and may be
obtained (without payment) upon application to the said Super-
intendent-Eegistrar ; and the person giving such notice shall
sign the same in the presence of such Superintendent-Eegistrar
or of his deputy, who shall forthwith transmit the same through
the general post to the Eegistrar-General at the General Eegister
Office.

APPENDIX D. 187

VII. The said Kegistrar-General shall, in the year one thousand List of certi-
eight hundred and fifty-six, and also at such subsequent periods jjed places to
as one of her Majesty's principal Secretaries of State shall from printed,
time to time in that behalf order or direct, make out and cause to

be printed a list of all places of meeting which have been certified
to and recorded by him under the said Act of the fifteenth and
sixteenth years of her Majesty, chapter thirty-six, or this Act, and
the record of which has not been cancelled as herein-after pro-
vided, and shall state in such list the county and Superintendent-
Registrar's district within which each of such places of meeting is
situated, and the religious denomination to which the persons for
the time being certifying it belong, and shall cause a copy of such
list to be sent to every Superintendent-Registrar of births, deaths,
and marriages in England, and such list shall be open at all
reasonable times to all persons desirous of inspecting the same, on
payment to such Superintendent-Registrar of a fee of one shilling.

VIII. Whenever it shall appear to the satisfaction of the said Direction to
Registrar-General, from any notice which shall have been given to tne Registrar-
him as aforesaid or otherwise, that any certified place of meeting for ca<J^a
religious worship has wholly ceased to be used as such, the said records Of
Registrar-General shall cause the record of such certification to be certificates of
cancelled, and shall give public notice of the cancellation thereof places of

by advertisement in some newspaper circulating within the dis- wors.niP
trict in which such place of meeting is situated, and in the London J^j a° sucjlt
Gazette, and shall also expunge the name of such place from the
list of certified places so to be printed by him as aforesaid ; and
after such cancellation and publication thereof as aforesaid such
place shall cease to be deemed duly certified as by law required,
and shall so remain until it shall have been duly certified afresh
under this Act.

IX. Every place of meeting for religious worship certified to the Certified
said Registrar-General under the said Act of the fifteenth and six- places ex-
teenth years of her Majesty, chapter thirty-six, or this Act, and ^0™™-°™
recorded by him as aforesaid, so long as the same continues to be tion of " The
bond fide used as a place of religious worship, and the record of the Charitable
certification thereof has not been cancelled as herein-before is Trusts Act,
provided, shall be wholly freed and exempted from the operation 1853>

of an Act passed in the session holden in the sixteenth and seven-
teenth years of her Majesty, chapter one hundred and thirty-
seven, intituled "The Charitable Trusts Act, 1853," and shall
not be subject or liable to any of the provisions of the same Act,
save that the exempted charities may avail themselves of the
sixty-third and sixty-fourth sections of the said Act, if they shall
think fit.

X. Nothing in this Act shall affect or be construed to affect the Nothing to
churches or chapels of the united Church of England and Ireland, affect

or the celebration of Divine Service according to the rites and ^ur^ es>
ceremonies of the said united Church by ministers of such Established
church, in any place hitherto used for such purpose, or being now Church.

188

APPENDIX D.

Certificate of
place having
been certi-
fied to be
given .

Sums re-
ceived by or
on account
of Registrar-
General to be
accounted for.
and expenses
defrayed as
other ex-
penses of the
General
Register
Office.

To remove
doubts as to
validity of
marriage.

Extent of Act

or hereafter duly consecrated or licensed by any archbishop or
bishop or other person lawfully authorized to consecrate or license
the same.

XI. The Registrar-General, on payment to him of a fee of two
shillings and sixpence, shall, with respect to any place certified to
him as a place of meeting for religious worship, the record whereof
remains uncancelled, give to any person demanding the same a
certificate, sealed or stamped with the seal of the General Register
Office, that at the time or respective times in such certificate in
that behalf stated the place therein described was duly certified
and duly recorded as required by this Act, and that at the date of
such sealed or stamped certificate the record of such certification
remained uncancelled ; and every such sealed or stamped certifi-
cate, if tendered in evidence upon any trial or other judicial pro-
ceeding in any civil or criminal court, shall be received as evidence
of the said several facts therein mentioned, without any further or
other proof of the same.

XII. All sums to be received by or on account of the Registrar-
General in pursuance of this Act shall be accounted for and paid
in manner directed by the said Act of the seventh year of King
William the Fourth, " for registering births, deaths and marriages
in England," with respect to sums received by him or on his
account under the provisions of that Act ; and all expenses in-
curred by the said Registrar- General, or by any Superintendent-
Registrar, or registrar, with his sanction and acting under his
direction or authority, in carrying this Act into execution and
making known its provisions, shall be deemed to have been
incurred in carrying on the business of the General Register Office,
and be defrayed accordingly.

XIII. Notwithstanding the provisions of this or any other Act,
all marriages which heretofore have been had or solemnized in
any building which has been registered for the solemnization of
marriages pursuant to the provisions of an Act passed in the sixth
and seventh years of his late Majesty King William the Fourth,
chapter eighty-five, but which may not have been certified as
required by the provisions of this or any other Act, shall be as
valid in all respects as if such place of worship had been so
certified.

XI Y. This Act shall not extend to Scotland or Ireland.

APPENDIX D. 189

SCHEDULES REFERRED TO IN THE FOREGOING ACT.
SCHEDULE A.

To the Registrar- General of Births, Deaths, and Marriages in England.

I, the undersigned * of in the County of do hereby, under Directions for

and by virtue of an Act passed in the year of Her Majesty Queen filling up this

Victoria, intituled "An Act to amend the Law concerning the certifying Schedule,
and registering of Places of Religious Worship in England," certify that a
certain building known by the name of situated at in the County

of within the Superintendent-Begistrar's District of [was used f

as a place of meeting for religious worship before the 30th day of June, 1852,
and] is intended to be used as heretofore J and will accordingly be forthwith
ii^ed as a place of meeting for religious worship by a congregation or assembly
of per sons calling themselves § and I request that this certificate may

be recorded in the General Eegister Office, pursuant to the said Act. Dated
this day of 185 .

(Signature of the party certifying.}

of the place of meeting above described.

SCHEDULE B.
To the Registrar- General of Births, Deaths, and Marriages in England.

I, the undersigned of in the County of being the person

or one of the persons who certified or last certified [or being " the trustee,"
or "one of the trustees," or the "owner," or "occupier," or "one of the
owners or occupiers " (as the case may 5e), of] a certain building known by
the name of [or a certain dwelling house, &c. (as the case may &e)]

situate at in the County of within the Superintendent-Registrar's

District of [and being now resident within the same district], do

* Here insert the name, residence, and county in which it is situate, and (he
rank or profession of the party certifying.

t If the place was not so used before 30th June, 1852, expunge this and the
following line.

J If the building has not been previously used as a place of worship, erase
the words *' as heretofore."

§ Here insert " Protestant Dissenters," " Independents," " Particular Baptists,"
"Wesleyan Methodists," "Roman Catholics," "Jews," or other religious de-
nomination of, or religious appellation adopted by, the persons on whose behalf
the building is certified ; but if those persons decline to describe themselves by
any distinctive appellation erase the words "calling themselves," and insert
" who object to be designated by any distinctive religious appellation."

|| Insert on this line immediately under the signature the word " minister,"
" proprietor," " a trustee," " occupier," " an attendant," or such other words aa
will clearly show the connexion subsisting between the person certifying and
the place of meeting.

190 APPENDIX D.

hereby declare and gi ve you notice, in pursuance of an Act passed in the
year of Her present Majesty, chapter that the aforesaid building

[or dwelling house, &c.], which was on the day of 185 recorded

by you as a place of meeting for religious worship by a congregation or
assembly of persons calling themselves [or by a congregation or

assembly of Eoman Catholics, or of persons belonging to the Society of
Friends, or of persons professing the Jewish Keligion (as the case may &e)],
has wholly ceased to be used as a place for public religious worship. Witness
my hand, this day of 185 .

( 191 )

APPENDIX E.*

Letter from the Catholic Hierarchy to the Royal Commission on
the Laws of Marriage, 1865.

8, York Place, Portman Square.

London, April 11, 1866.
MY LORD,

We, the Catholic Archbishop and Bishops of England, who
had each the honour of receiving a letter from your Lordship as
Chairman of the Koyal Commission on the Laws of Marriage, have
thought it the most satisfactory course to defer our reply until our
annual assembly in London, when we could best express our
opinions in a joint letter, the result of our united deliberations.

Your Lordship invites our observations and suggestions upon
the whole subject of the marriage contract (religious and secular),
its proofs, its registration, and preservation of the evidence
respecting it ; and you more particularly request the information
we can furnish with respect to the practical operation of the
present law in those places with which we are best acquainted,
which information extends, in our case, to the whole Catholic
community of England and Wales.

It becomes our first duty to acknowledge the consideration and
the courtesy of your Lordship and the Royal Commission in
giving us the opportunity of presenting our suggestions upon a
subject in which we are so deeply concerned ; and after careful
consideration, we have the honour of submitting to you the
following observations : —

1. With regard to the general constitution of the Marriage Law
as now in force in England, we find that in many respects it works
well ; but there are several points of detail which we think are
open to considerable amelioration.

2. We, of course, except the Divorce Court from favourable
remark, as your Lordship will be aware that in the Catholic
Church a valid marriage once fully constituted has ever been held
to be indissoluble. With us the contract is not only a natural and
a civil, but also a spiritual contract, and a sacrament ; and so long
as both parties to the contract are in life, neither of them is free to
contract anew. This is not merely a point of our discipline, but

* See above, p. 57.

192 APPENDIX E.

an article of our faith and a fundamental maxim of our Christian
morality.

3. With respect to the much-debated question of marrying a
deceased wife's sister, with us the impediment is diriment of
marriage ; but urgent cases will sometimes arise when the eccle-
siastical authority finds it reasonable to remove the impediment by
dispensation. And among the motives for such dispensations are,
the preventing of greater evils, the protection or reparation of
character, the difficulty of forming another marriage, the consider-
ation of children born, or that may be born, &c. And although
cases of this kind are comparatively rare, we could wish to see the
civil obstacles removed, which stand in the way of remedying what
may prove to be grave matters of conscience.

4. As well for the sake of civil order as of morality we consider
that, as far as is consistent with securing correct information pre-
liminary to the marriage contract, and with ensuring due evidence
of the marriage contracted, it is of the utmost importance that every
facility be given for celebrating marriage, and especially as far as
the poorer classes are concerned. Unhappily, in these times, it
frequently becomes expedient to celebrate a marriage as soon as it
is practicable, for the sake of justice, for the protection of character,
or on account of pregnancy intervening; and without speedy
marriage, the woman may be in danger of being deserted, or abortion
may be practised, or child murder, now so prevalent, may be had
recourse to. Our police-courts show again how many persons
there are who live in concubinage, often having families ; and this
state of things arises not unfrequently, or continues, from unwilling-
ness to face the intricacies and expenses of the registration office,
preliminary to marriage. Such persons are often supposed to be
married, as well by their children as by their neighbours ; and then
an obstacle to their marriage will arise from the publicity which
they dread by reason of the preliminaries which the law requires.
And although those preliminaries required to be gone through with
the registration office, with the clergy, and with the registrar of the
marriage, may seem to present few difficulties to those who are
familiar with their operation, yet to the uninstructed people
coming into contact with them' for the first time in their lives, they
are intricate, perplexing, and give occasion to a great many mis-
takes, from which arise delays that harass and distress them,
causing loss of their time, which the labouring people cannot
command, loss of their work, perhaps even loss of their employ-
ment. In country places where the people are farther away from
those who could advise them, from the registration office, and
from the church, these obstacles of marriage are proportionately
increased.

5. Our clergy find the present system of choice left open
between marrying at the church or at the registration office to be
open to the following abuse. Persons who have some grave
impediment, of which one or both are conscious, for example, that

APPENDIX E. 193

of a prior marriage, the having a husband or wife living, it may
be in Ireland, in America, or in some distant part of the country,
such persons will shun the church, knowing the facilities which
the clergy have for discovering the facts and the further facilities
presented in the publication of barms in church ; and they will
have recourse to the registration office for celebrating their
marriage, well aware that there they have but little chance of
detection. Occasionally they will go to a registration office at a
distance, and even assume fictitious names. For the same motive
of escaping detection, and for another, which will be stated
presently, some Catholics will likewise go to the Established
Church to celebrate their marriage.

But the final result is this : — On later reflection, they do not
believe in their marriage ; they know that, either legally, or
spiritually, or on both these grounds, the contract is invalid ; and
they either live miserably, or separate, or one abandons the other.
In such cases it is not an unrare event for one of the parties to
emigrate, to escape at once the twofold difficulty of the invalid
marriage and of the law.

6. We find the double fee a great obstacle to conscientious
marriage, that is, to marriage in the church, which alone satisfies
the conscience of Catholics ; and not unfrequently this obstacle
will keep persons living on in a state of concubinage.

It is but just, however, to observe, that this obstacle is not
occasioned by the clergy, for not only are fees to them quite
voluntary, but in some fourth of the cases they receive no fee
whatever ; and in the average, where the poorer classes are con-
cerned, not more than from one to two shillings are paid them.
Indeed, instances are not so very rare, where, to save the persons
concerned from an immoral life, the clergy have themselves paid
the registration fee.

But the fee of 5s. to the registration office and of 2s. to the
registrar of the marriage have their weight with the poor, and
especially at a time when they are incurring other and unusual
expenses; and moreover, they are ashamed if they cannot offer
something also to their clergy, who,- in their estimation, and it is
a reasonable one, have had the chief trouble with their marriage ;
who have had to make all the due inquiries, who have perhaps had
to correspond for them to a distance ; who have had to instruct them
and to prepare them for the sacraments preliminary to that of
marriage ; and who often besides have to instruct and' guide them,
or to rectify their mistakes, with respect to the rules of registration.

These remarks will make it obvious to your Lordship why the
double fee operates as an obstacle to marriage.

7. But this obstacle becomes much more serious in marriages of
conscience, especially where persons have been living for years in
a state of concubinage, where a family has come in consequence,
and where the fact of their being unmarried is unknown. In such
cases it is of the greatest importance that marriage be made as

194 APPENDIX E.

easy of celebration as possible, so that the first good disposition
that can be awakened in the offenders may be taken advantage of.
But here, again, besides the perplexities which seize upon the
imagination of the poor touching the intricacies of the prelimina-
ries, and besides the consideration of the cost, another and a graver
difficulty arises, and that is the dread of publicity occasioned by
the intervention of two officials besides the clergy.

8. In some instances, the difficulty of teaching the uneducated
poor to attend to the preliminary notification of their marriages
arises from the fact that in one of our ecclesiastical districts or
congregations, two registration districts may be wholly or partially
included ; and it is hard to make the parties wishing to be
married understand that they cannot deal with the same registrar
before whom their friends and relations living in the same
neighbourhood and under the same priest, and attending the same
registered church, have arranged their marriage.

9. For the reasons explained under the five preceding heads,
your Lordship and the Eoyal Commission will not fail to be
impressed with the exceeding importance of removing, in all
practical ways, the obstacles which at present stand in the way of
ensuring the validity of marriages. And, in so far as Catholic
marriages are concerned, after the most careful consideration of
the question, we are of opinion that the most effectual remedy for
most of the difficulties above alleged, would be to constitute the
Catholic clergy the legal witnesses of the marriages celebrated by
them, as is the case with the clergy of the Established Church,
with the secretaries of the Jewish synagogues, and with the
clergy of the Catholic Church in Ireland.

Your Lordship cannot be unaware how strict the clergy of the
Catholic Church are in whatever concerns the laws of marriage,
and how vigilantly the execution of those laws is watched over by
their prelates. It is this strictness and vigilance which furnish
the best guarantee against illegal or invalid marriages being
celebrated in our churches. Moreover, as so large a portion of
our flocks belong to the migratory portion of the population, our
clergy need and have facilities at their disposal for making pre-
liminary inquiries in almost any part of the world, which gives
them great advantages in guarding against deception.

10. We may further observe that the rites and forms used in
the Catholic Church are identical with those of the Established
Church, and that the form of contract repeated before the registrar
is essentially the same as that which has been already uttered in
the religious rite ; and this repetition to the registrar of what has
been already declared to the clergyman, is apt to have a ludicrous
effect, without any comprehensible reason for it.

11. Cases arise where a marriage is valid in civil law, but null
and void in face of the Church. In such cases the consciences of
the contracting parties have to be satisfied. The law has removed
this difficulty in cases where the marriage has been celebrated in

APPENDIX E. 195

the registration office, but not where the marriage has been per-
formed in the Established Church. Thus whilst an Anglican
clergyman is safe from penalties in renewing a marriage cele-
brated by us, a Catholic priest incurs felony for renewing a
marriage celebrated in the Established Church, however necessary
it may be for the relief of consciences. We therefore request to
draw your Lordship's attention to this hardship, confident that no
practical objection can exist against the equalisation of the law.

12. With respect to the registration of churches and chapels,
the present law requires twelve months' previous notice, the
declaration of twenty householders, and a fee of £3. Upon these
regulations we have to observe that it is not unfrequent that some
new work, mine, manufacture, or other enterprise, suddenly brings
together a number of Catholic workmen with their families, who
have to be provided with a place of worship and a school, and who
have to support a clergyman all out of their own industry, and by
the joint contribution of small offerings. In these cases, not to
speak of others, it is sometimes almost impossible to find twenty
Catholic householders. The place of worship erected is required
as soon as practicable for marriages, for the nearest Catholic place
of worship may be at a considerable distance, and the fee of £3
becomes an item of some consideration, where everything has to
be provided from the pence of the people.

13. We would also suggest that in chapels attached to camps,
e.g., Shorncliffe or Aldersh9t, where none of the congregation are
householders, the chapel be allowed to be registered on the cer-
tificate of the Secretary of State for War, that the chapel is used
for Divine Service.

Eespectfully recommending these suggestions to the kind and
impartial consideration and eminent legal knowledge of your
Lordship and the Koyal Commissioners,

We beg to remain,

My Lord,
Your obedient humble servants,

-j- HENRY EDWARD MANNING.
+ THOMAS JOSEPH BBOWN.
-f WILLIAM BERNARD ULLATHORNE.
+ THOMAS GRANT.
-f- WILLIAM TURNER,
-j- JAMES BROWN.
4- ALEXANDER GOSS.
4- WILLIAM VALTGHAN.
4- WILLIAM CLIFFORD.
4- FRANCIS KERRIL AMHERST.
4- RICARDUS ROSKELL.
+ ROBERT CORNTHWAITE.
To the Lord Chelmsford,
President of the Royal Commission on the Marriage Laws.

o 2

( 196 )

APPENDIX R*

Extract from the Report of the Royal Commission on the
Laws of Marriage, 1865.

" The presence of a civil registrar is, in England, now required
on pain of nullity, at all marriages except those of the Established
Church, and of Quakers and Jews ; but it is not required either at
regular marriages in Scotland, or at any marriage whatever
(except those solemnised in the registrar's offices), in Ireland.
When the duty of registrars quoad hoc is performed by the officiat-
ing ministers or other official witnesses of any religious denomina-
tion (as is the case in all marriages by the United Church of
England and Ireland, and by Jews and Quakers, and in all
marriages by Presbyterian and other Protestant Nonconformist
ministers in Ireland), the further security of the attendance of the
civil registrar does not seem to be important, still less to be a con-
dition upon which it can be necessary to make the validity of a
marriage depend. We are confirmed in this view, by considering
how very insignificant a proportion the number of marriages to
which this requirement is now applicable, bears to the whole
number celebrated every year in the United Kingdom ; and by
the fact, that the legislature, after some years' experience of a law
requiring the presence of a civil registrar at all marriages by non-
Presbyterian Protestant Nonconformists in Ireland, deliberately
repealed it, and that no evil is shown to have resulted from that
change. The English Eoman Catholic bishops, after describing
the incidence upon their own communion of certain difficulties,
considered by them to arise out of this state of the English Marriage
Law, have recommended by anticipation, the course which we
are prepared to advise ; stating their opinion, that the most effec-
tual remedy for most of these difficulties would be, ' to constitute
the Catholic clergy the legal witnesses of the marriages celebrated
by them, as is the case with the clergy of the Established Church,
with the secretaries of the Jewish Synagogues, and with the clergy
of the Catholic Church in Ireland.' They add, that the form of
words required to be repeated before the registrar, when he
attends at their marriages, is essentially the same as that which
has been already uttered in the religious rite ; and that ' this

* See_above, p. 57.

APPENDIX F. 197

repetition to the registrar of what has already been declared to the
clergyman is apt to have a ludicrous effect, without any compre-
hensible reason for it.'

" We shall propose, in a later part of this Report, that similar
duties with respect to registration to those now performed by the
clergy of the United Church of England and Ireland, the officiating
ministers at Presbyterian and other Protestant Nonconformist
marriages in Ireland, and the official witnesses of the marriages of
Quakers and Jews, should in all cases and in all parts of the
United Kingdom be performed by the officiating minister or
official witness of marriages, whoever he may be ; and if this
recommendation should be adopted, we think that the law should
no longer insist upon the presence of a civil registrar at any
marriage solemnised elsewhere than in his own office " (p. xxxvii.).

APPENDIX G.*

BUEIAL LAWS AMENDMENT ACT, 1880.
[43 & 44 VICT. OH. 41.]

AKKANGEMENT OF SECTIONS.

1. After passing of Act, notice may be given that burial will take place in

churchyard or graveyard without the rites of the Church of England.

2. Paupers.

3. Time of burial to be stated, subject to variation.

4. Burial to take place accordingly.

5. Eegulations and fees.

6. Burial may be with or without religious service.

7. Burials to be conducted in a decent and orderly manner and without

obstruction.

8. Powers for prevention of disorder.

9. Act not to give right of burial where no previous right existed.

10. Burials under Act to be registered.

11. Order of coroner or certificate of registrar to be delivered to relative, &c.,

instead of to person who buries.

12. Liberty to use burial service of Church of England in unconsecrated

ground.

13. Relief of clergy of Church of England from penalties in certain cases. .

14. Saving as to ministers of Church of England.

15. Application of Act.

16. Short title cf Act.
SCHEDULES.

[7th September, 1880.]

WHEREAS it is expedient to amend the law of burial in England

and the Channel Islands :

Be it therefore enacted by the Queen's most Excellent Majesty,

by and with the advice and consent of the Lords Spiritual and

Temporal, and Commons, in this present Parliament assembled, and

by the authority of the same, as follows :

After passing 1. After the passing of this Act any relative, friend, or legal
of Act, notice representative having the charge of or being responsible for the
that bur? al611 Burial °^ a deceased person may give forty-eight hours' notice in
will take writing, indorsed on the outside " Notice of Burial," to, or leave or
place in cause the same to be left at the usual place of abode of the rector,

*_See above, p. 62.

APPENDIX a. 199

vicar, or other incumbent, or in his absence the officiating minister churchyard or
in charge of any parish or ecclesiastical district or place, or any graveyard
person appointed by him to receive such notice, that it is intended without the
that such deceased person shall be buried within the churchyard c^ch Of
or graveyard of such parish or ecclesiastical district or place with- England,
out the performance in the manner prescribed by law, of the service
for the burial of the dead according to the rites of the Church of
England, and after receiving such notice no rector, vicar, incumbent,
or officiating minister shall be liable to any censure or penalty,
ecclesiastical or civil, for permitting any such burial as aforesaid.
Such notice shall be in writing, plainly signed with the name and
stating the address of the person giving it, and shall be in the form
or to the effect of Schedule (A) annexed to this Act.

The word "graveyard" in this Act shall include any burial
ground or cemetery vested in any burial board, or provided under
any Act relating to the burial of the dead, in which the
parishioners or inhabitants of any parish or ecclesiastical district
have rights of burial ; and in the case of any such burial ground or
cemetery, if a chaplain is appointed to perform the burial service
of the Church of England therein, notice under this Act shall be
addressed to such chaplain, but the same shall be given to or left
at the office of the clerk of the burial board, if any, in whom any
such burial ground or cemetery may be vested : Provided also, that
it shall be lawful for the proprietors or directors of any proprietary
cemetery or burial ground to make such byelaws or regulations as
may be necessary for enabling any burial to take place therein in
accordance with the provisions of this Act, any enactment to the
contrary notwithstanding.

2. Such notice, in the case of any poor person deceased, whom Paupers,
the guardians of any parish or union are required or authorised by

law to bury, may be given to the rector, vicar, or other incumbent
in manner aforesaid, and also to the master of any workhouse in
which such poor person may have died, or otherwise to the said
guardians, by the husband, wife, or next of kin of such poor person,
who, for the purposes of this Act, shall be deemed to be the person
having the charge of the burial of such deceased poor person ; and
in any such case it shall be the duty of the said guardians to
permit the body of such deceased person to be buried in the manner
provided by this Act.

3. Such notice shall state the day and hour when such burial is Time of
proposed to take place, and in case the time so stated be incon- ^u^.ia! to !|?
venient on account of some other service having been, previously ^variation,
to the receipt of such notice, appointed to take place in such
churchyard or graveyard, or the church or chapel connected
therewith, or on account of any byelaws or regulations lawfully in

force in any graveyard limiting the times at which burials may
take place in such graveyard, the person receiving the notice shall,
unless some other day or time shall be mutually arranged within
twenty-four hours from the time of giving or leaving such notice,

200 APPENDIX G.

signify in writing, to be delivered to or left at the address or usual
place of abode of the person from whom such notice has been
received, or at the house where the deceased person is lying, at
which hour of the day named in the notice, or (in case of burial in
a churchyard, if such day shall be a Sunday, Good Friday, or
Christmas Day) of the day next following, such burial shall take
place ; and it shall be lawful for the burial to take place, and it
shall take place, at the hour so appointed or mutually arranged,
and in other respects in accordance with the notice : Provided that,
unless it shall be otherwise mutually arranged, the time of such
burial shall be between the hours of ten o'clock in the forenoon and
six o'clock in the afternoon if the burial be between the first day of
April and the first day of October, and between the hours of ten
o'clock in the forenoon and three o'clock in the afternoon if the
burial be between the first day of October and the first day of
April : Provided also, that no such burial shall take place in any
churchyard on Sunday, or on Good Friday or Christmas Day, if any
guch day being proposed by the notice shall be objected to in
writing for a reason assigned by the person receiving such notice.
Burial to take 4. When no such intimation of change of hour is sent to the
place accord- person from whom the notice has been received, or left at the
mg1y« house where the deceased person is lying, the burial shall take

place in accordance with and at the time specified in such notice.
Regulations 5. All regulations as to the position and making of the grave
and Fees. which would be in force in such churchyard or graveyard in the
case of persons interred therein with the service of the Church of
England shall be in force as to burials under this Act ; and any
person who, if the burial had taken place with the service of the
Church of England, would have been entitled by law to receive
any fee, shall be entitled, in case of a burial under this Act, to
receive the like fee in respect thereof.

Burial may be 6. At any burial under this Act all persons shall have free
with or with- access to the churchyard or graveyard in which the same shall
out religious take place> ^Q burial may take pjace> ftt the option of tho

person so having the charge of or being responsible for the same

as aforesaid, either, without any religious service, or with such

Christian and orderly religious service at the grave, as such person

shall think fit ; and any person or persons who shall be thereunto

invited, or be authorised by the person having the charge of or

being responsible for such burial, may conduct such service or take

part in any religious act thereat. The words " Christian service "

in this section shall include every religious service used by any

church, denomination, or person professing to be Christian.

Burials to be 7. All burials under this Act, whether with or without a religious

conducted in service, shall be conducted in a decent and orderly manner ; and

a ^f CGT^ every person guilty of any riotous, violent, or indecent behaviour

mannerand at an7 burial under this Act, or wilfully obstructing such burial

without or any such service as aforesaid thereat, or who shall, in any such

obstruction churchyard or graveyard as aforesaid, deliver any address, not

APPENDIX a. 201

being part of or incidental to a religious service permitted by this
Act, and not otherwise permitted by any lawful authority, or who
shall, under colour of any religious service or otherwise, in any
such churchyard or graveyard, wilfully endeavour to bring into
contempt or obloquy the Christian religion or the belief or worship
of any church or denomination of Christians, or the members or
any minister of any such church or denomination, or any other
person, shall be guilty of a misdemeanor.

8. All powers and authorities now existing by law for the Powers for
preservation of order, and for the prevention and punishment of prevention of
disorderly behaviour in any churchyard or graveyard, may be disorder,
exercised in any case of burial under this Act in the same manner

and by the same persons as if the same had been a burial according
to the rites of the Church of England.

9. Nothing in this Act shall authorise the burial of any person Act not to
in any place where such person would have had no right of inter- £ive. right of
ment if this Act had not passed, or without performance of any n^revTous^6
express condition on which, by the terms of any trust deed, any r[ght, existed,
right of interment in any burial ground vested in trustees under

such trust deed, not being the churchyard or graveyard, or part
of the churchyard or graveyard, of the parish or ecclesiastical
district in which the same is situate, may have been granted.

10. When any burial has taken place under this Act the person Burials under
so having the charge of or being responsible for such burial as Acfc. to ^e
aforesaid shall, on the day thereof, or the next day thereafter, reS18tercd>
transmit a certificate of such burial, in the form or to the eifect of
Schedule (B) annexed to this Act, to the rector, vicar, incumbent,

or other officiating minister in charge of the parish or district in
which the churchyard or graveyard is situate or to which it belongs,
or in the case of any burial ground or cemetery vested in any
burial board to the person required by law to keep the register of
burials in such burial ground or cemetery, who shall thereupon
enter such burial in the register of burials of such parish or district,
or of such burial ground or cemetery, and such entry shall form
part thereof. Such entry, instead of stating by whom the ceremony
of burial was performed, shall state by whom the same has been
certified under this Act. Any person who shall wilfully make any
false statement in such certificate, and any rector, vicar, or minister,
or other such person as aforesaid, receiving such certificate, who
shall refuse or neglect duly to enter such burial in such register
as aforesaid shall be guilty of a misdemeanor.

11. Every order of a coroner or certificate of a registrar given Order of
under the provisions of section seventeen of the Births and Deaths coroner or
Registration Act, 1874, shall, in the case of a burial under that ^IS^^
Act, be delivered to the relative, friend, or legal representative of befdel'ivered
tho deceased, having the charge of or being responsible for the to relative,
burial, instead of being delivered to the person who buries or &°., instead of
performs any funeral or religious service for the burial of the body *° Person wh°
of the deceased ; and any person to whom such order or certificate T

202 APPENDIX

shall have been given by the coroner or registrar who fails so to
deliver or cause to be delivered the same shall be liable to a penalty
not exceeding forty shillings, and any such relative, friend, or
legal representative so having charge of or being responsible for
the burial of the body of any person buried under this Act as afore-
said, as to which no order or certificate under the same section of
the said Act shall have been delivered to him, shall, within seven
days after the burial, give notice thereof in writing to the registrar,
and if he fails so to do shall be liable to a penalty not exceeding
ten pounds.

Liberty to use 12. No minister in holy orders of the Church of England shall

of Oh ^iToT ^e S11kjoct *° any censure °r penalty for officiating with the service

England in prescribed by law for the burial of the dead according to the rights

unconsecrated of the said church in any unconsecrated burial ground or cemetery,

ground. or in any part of a burial ground or cemetery, or in any building

thereon, in any case in which he might have lawfully used the

same service, if such burial ground or cemetery or part of a burial

ground or cemetery had been consecrated. The relative, friend,

or legal representative having charge of or being responsible for

the burial of any deceased person who had a right of interment in

any such unconsecrated ground vested in any burial board, or

provided under any Act relating to the burial of the dead, shall be

entitled, if he think fit, to have such burial performed therein

according to the rites of the Church of England by any minister

of the said church who may be willing to perform the same.

13. From and after the passing of this Act, it shall be lawful
Ol^ch^f for any minister in holy orders of the Church of England authorised
England from ^° perform the burial service, in any case where the office for the
penalties in burial of the dead according to the rites of the Church of England
certain cases, may not be used, and in any other case at the request of the
relative, friend, or legal representative having the charge of or
being responsible for the burial of the deceased, to use at the
burial such service, consisting of prayers taken from the Book of
Common Prayer and portions of Holy Scripture, as may be pre-
scribed or approved of by the Ordinary, without being subject to
any ecclesiastical or other censure or penalty.

Saving as to 14. gave as jg in this Act expressly provided as to ministers of

ChSrShof the Cllurcl1 of England, nothing herein contained shall authorise

England. or enable any such minister who shall not have become a declared

member of any other Church or denomination, or have executed a

deed of relinquishment under the Clerical Disabilities^ Act, 1870,

to do any act which he would not by law have been authorised or

enabled to do if this Act had not passed, or to exempt him from

any censure or penalty in respect thereof.

Abdication of 15. This Act shall extend to the Channel Islands, but shall not
Act- apply to Scotland or to Ireland.

Siiort title of 16. This Act may be cited as the Burial Laws Amendment
Act- Act, 1880.

APPENDIX G. 203

SCHEDULES TO WHICH THIS ACT EEFERS.

SCHEDULE A.

Notice of Burial.

I, of being the relative [or friend, or legal representative, as

the case may be, describing the relation if a relative,] having the charge of or
being responsible for the burial of A. B. of who died at in the

parish of on the day of do hereby give you notice that it

is intended by me that the body of the said A. B. shall be buried within the
[here describe the churchyard or graveyard in which the body is to be buried,]
on the day of at the hour of without the performance in

the manner prescribed by law of the service for the burial of the dead
according to the rites of the Church of England, and I give this notice
pursuant to the Burial Laws Amendment Act, 1880.

To the Eector [or as the case may be,] of

SCHEDULE B.

I, of the person having the charge of (or being responsible for)

the burial of the deceased, do hereby certify that on the day of

A. B., of aged was buried in the churchyard [or graveyard] of

the parish [or district] of

To the Kector [or, as the case may be,] of

( 204 )

Landlords
empowered
to convey
land to be
used as sites
for places of
worship and
residence of
the minister.

If lands cease
to be used for
the purposes
of tlio Act,
then to revert.

APPENDIX H.*

36 & 37 YICT. c. 50.

An Act to afford further facilities for the Conveyance of Land for
Sites for Places of Religious Worship and for Burial Places.

[21st July, 1873.]

WHEREAS it is expedient to afford greater facilities for granting
sites for buildings for religious worship and for burial places in
England and Wales :

Be it therefore enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :

1. Any person or persons being seised or entitled in fee simple,
fee tail, or for life or lives of or to any manor or lands of freehold
tenure, and having the beneficial interest therein, and being in
possession for the time being, may grant, convey, or enfranchise
by way of gift, sale, or exchange in fee simple, or for any term of
years, any quantity not exceeding one acre of such land, not being
part of a demesne or pleasure-ground attached to any mansion-
house, as a site for a church, chapel, meeting-house, or other place
of divine worship, or for the residence of a minister officiating in
such place of worship or in any place of worship within one mile
of such site, or for a burial place, or any number of such sites,
provided that each such site does not exceed the extent of one
acre: Provided also, that no such grant, conveyance, or enfran-
chisement made by any person seised or entitled only for life or
lives of or to any such manor or lands shall be valid unless the
person next entitled to the same for a beneficial interest in
remainder in fee simple or fee tail (if legally competent) shall be a
party to and join in the same, or if such person be a minor, or
married woman, or lunatic, unless the guardian, husband, or
committee of such person respectively shall in like manner concur :
Provided also, that in case the said land so granted, conveyed, or
enfranchised as aforesaid, or any part thereof, shall at any time be
used for any purpose other than as a site for such place of worship
or residence, or burial place, or, in the case of a place of worship
or residence, shall cease for a year at one time to be used as such

* See above, p. 64.

APPENDIX H. 205

place of worship or residence, the same shall thereupon revert to
and become a portion of the lands from which the same was
severed, as fully to all intents and purpose as if this Act had not
been passed, anything herein contained to the contrary notwith-
standing. The provisions hereinbefore contained with respect to
any manor or lands of freehold tenure shall apply to lands of
copyhold or customary tenure, but so, nevertheless, that the pro-
visions of "The Lands Clauses Consolidation Act, 1845," with
respect to copyhold lands (being sections 95, 96, 97, and 98 of such
Act) shall for the purposes of this enactment be incorporated with
this Act.

2. The purchase-money or enfranchisement money or money to AS to pay-
be received for equality of exchange on any such sale, enfranchise- ment of
ment, or exchange shall, if such sale, enfranchisement, or exchange purchase-
be made by any person or persons seised or entitled in fee simple money» &c-
or fee tail, be paid to the person or persons making such sale,
enfranchisement, or exchange, but if such sale, enfranchisement, or
exchange be made by any person or persons seised or entitled for

life or lives only, then such purchase-money, or enfranchisement
money, or money to be received for equality of exchange, shall be
paid to the existing trustees or trustee (if any) of the instrument
under which such person or persons is or are so seised or entitled, to
be held by them upon the trusts upon which the land conveyed for
such site was held, or if there be no such existing trustees or
trustee to two or more trustees to be nominated in writing by the
person or persons making such sale, enfranchisement, or exchange ;
and the receipt of any person or persons to whom such money is
hereby directed to be paid shall effectually discharge the person or
persons paying such purchase or enfranchisement money or money
for equality of exchange therefrom, and from all liability in respect
of the application thereof ; and the trustees so to be nominated as
aforesaid shall invest such purchase or enfranchisement money or
money to be received for equality of exchange in the purchase of
other lands or hereditaments to be settled to the same uses and
trusts as the land conveyed for such site should have stood limited
to; and until such investment, such purchase or enfranchisement
money or money to be received for equality of exchange shall be
invested upon such securities or investments as would for the time
being be authorised by statute or by the Court of Chancery, and
for the purposes of devolution and enjoyment shall be treated as
land subject to the same uses and trusts as the land conveyed for
such site should have stood limited to.

3. Where any person or persons is or are equitably entitled to Persons under
any manor or lands, but the legal estate therein shall be in some disability ein-
trustee or trustees, it shall be sufficient for such person or persons J^^^^g
to convey or otherwise assure the same for the purposes of this fo^the pur-3
Act without the trustee or trustees being party or parties to the poses of the
conveyance or other assurance thereof, and where any married Act.
woman shall be seised or possessed of or entitled to any estate or

206 APPENDIX H.

interest, manorial or otherwise, in land proposed to be conveyed
or otherwise assured for the purposes of this Act, she and her
husband may convey, or otherwise assure the same, for such pur-
poses by deed without any acknowledgment thereof; and where
it is deemed expedient to purchase any land for the purposes afore-
said belonging to or vested in any infant or lunatic, such land may
be conveyed or otherwise assured by the guardian of such infant
or the committee of such lunatic respectively, who may receive the
purchase-money for the same, and give valid and sufficient dis-
charges to the party paying such purchase-money, who shall not
be required to see to the application thereof; and in every such
case respectively the legal estate shall, by such conveyance or
other assurance, vest in the trustees of such place of worship or
residence ; and if any land taken under this Act be subject to any
rent, and part only of the land subject to any such rent be required
to be taken for the purposes of this Act, the apportionment of such
rent may be settled by agreement between the owner of such rent
and the person or persons to whom the land is conveyed ; and if
such apportionment be not so settled by agreement, then the same
shall be settled by two justices as provided in " The Lands Clauses
Consolidation Act, 1845," section 119 : Provided nevertheless, that
nothing herein contained shall prejudice or affect the right of any
person or persons entitled to any charge or incumbrance on such
land.

Form of ^' ^ gifts» grants, conveyances, assurances, and leases of any

grant*, &c. gite f°r a plac© of worship, or the residence of a minister, under the
provisions of this Act, in respect of any land, messuages, or build-
ings, may be made according to the form following, or as near
thereto as the circumstances of the case will admit ; (that is to
say),

"I [or We] under the authority of an Act passed in the thirty-
sixth and thirty-seventh years of Her Majesty Queen Victoria,
intituled ' An Act to afford further facilities for the conveyance
of land for sites for places of religious worship and for burial
places,' do hereby freely and voluntarily, and without any valu-
able consideration [or, do, in the consideration of the sum of

pounds to me or the said

paid] grant [alienate] and convey [or lease] to A.B.
all [description of the premises], and all [my or our or the right,
title, and interest of the] to and in the same and every part there-
of, to hold unto and to the use of the said

and his or their heirs, or executors, or administrators, or successors,
for the purposes of the said Act, and to be applied as a site for a
place of worship, or for a residence for a minister or ministers
officiating in , or for a burial place, and for no other

purposes whatever. [In case the site be conveyed to trustees, a clause
providing for the removal of the trustees, and in cases where the land is
purchased, exchanged, or demised, usual covenants or obligations for title
may be added.]

APPENDIX S. 207

" In witness whereof, the conveying and other parties have here-
unto set their hands and seals, the day of

" Signed, sealed, and delivered by the said

" in. the presence of of ."

One witness to the execution of the document by each party
shall be sufficient, and any assurance under this Act shall be and
continue valid if otherwise lawful, although the donor or grantor
shall die within twelve calendar months from the execution
thereof.

5. The persons herein-before specified may convey, by way of Ecclesiastical
gift, sale, or exchange, any site or sites, not exceeding in the case Commis-

of any one site the quantity aforesaid, for any of the purposes of si°ners may
the Church Building Acts, to the Ecclesiastical Commissioners for accep
England, or as such Commissioners may direct, and such Com-
missioners may also act as trustees for the purpose of taking and
holding any sites granted under this Act; and all conveyances
made under this present enactment shall be deemed to be made
under the Church Building Acts, and the land conveyed shall vest
in conformity with such conveyances and the Church Building
Acts.

6. The provisions of this Act shall not extend to Scotland or Extent of
Ireland. Act.

7. This act may be cited as " The Places of Worship Sites Act, Short title.
1873."

45 & 46 VICT. c. 21.

An Act to amend the Places of Worship Sites Act, 1873.

[12th July, 1882.]

WHEREAS by the Places of Worship Sites Act, 1873, facilities are 36 & 37 Viet,
afforded for the conveyance of pieces of land not exceeding in c. 50.
quantity one acre for sites for places of religious worship and
for burial places, but doubts have been entertained whether
conveyances can be made under that Act by corporations and
public bodies, and it is expedient to remove such doubts :

And whereas cases have arisen in which tenants for life are
unable to make conveyances under the said Act by reason that
the person, next entitled to the manor or lands for a beneficial
interest in fee simple or fee tail is unborn or unascertained ; and
it is expedient to grant increased facilities for making such
conveyances.

208 APPENDIX H.

Conveyance 1« The Places of Worship Sites Act, 1873, shall be construed as

of lands by extending to authorise any corporation, ecclesiastical or lay,

corporations whether sole or aggregate, and any officers, justices of the peace,

"ublic^bodies *rustees» or commissioners holding land for public, ecclesiastical,

' parochial, charitable, or other purposes or objects, to grant,

convey, or enfranchise for the purposes of the Act such quantity

of land as therein mentioned : Provided as follows :

(a.) An ecclesiastical corporation sole, being below the dignity
of a bishop, shall not make any such grant without the
consent in writing of the bishop of the diocese to whose
jurisdiction he is subject :

(&.) A municipal corporation shall not make any such grant
without the consent in writing of the Commissioners of Her
Majesty's Treasury :

(c.) Parochial property shall not be so granted without the
consent of a majority of the ratepayers and owners of property
in the parish to which the property belongs, assembled at a
meeting to be convened according to the mode pointed out
5 & 6 W. 4, in the Act of the session held in the fifth and sixth years of

c- 69. the reign of King William the Fourth, chapter 69, intituled

"An Act to facilitate the conveyance of workhouses and other
property of parishes, and of incorporations or unions of
parishes in England and Wales," and of the Local Government
Board and of the guardians of the poor of the parish or of
the union comprising the parish, testified by their being
parties to the conveyance :

(d.) Property held on trust for charitable purposes shall not be
so granted without the consent of the Charity Commissioners
for England and Wales.

Power for 2. The said Act shall be construed as extending to authorisa

limited owner any person seised or entitled only for life or lives of or to any

in case of manor or lands of freehold tenure to make such grant, conveyance,

ascertained1111" or enfranchisement as is mentioned in the said Act in cases where

remainder- the person next entitled to the same for a beneficial interest in

man to remainder in fee simple or fee tail is unborn or unascertained:

convey, &c. Provided that no such grant, conveyance, or enfranchisement made

by any such person seised only for a life or lives shall be valid

unless the person seised or entitled for a beneficial interest for

life or lives, or for an estate in fee simple or fee tail (as the case

may be) in remainder immediately expectant on the estate of such

APPENDIX H. 209

unborn or unascertained person of or to such manor or lands (if
any, and if legally competent) shall be a party to and shall join
in the same ; and if there be no such person, or if such person be
not legally competent, unless the trustees or trustee (if any) of
such manor or lands during the suspense or contingency of the
then immediate or expectant estate in fee simple or fee tail in
such manor or lands shall in like manner concur.

3. This Act may be cited as the Places of Worship Sites Short title.
Amendment Act, 1882.

( 210 )

APPENDIX L*

Short title.

On death
of father,
mother to bo
guardian
alone or
jointly with
others.

Mother
may appoint
guardian, in
certain cases,

49 & 50 VICT c. 27.

An Act to amend the Law
Infants.

to the Guardianship and Custody oj
[25th June, 1886.]

WHEKEAS it is expedient to amend the law relating to the
guardianship and custody of infants :

Be it enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
authority of the same, as follows :

1. This Act may be cited as the Guardianship of Infants Act,
1886.

2. On the death of the father of an infant, and in case the father
shall have died prior to the passing of this Act then from and
after the passing of this Act, the mother if surviving shall be the
guardian of such infant, either alone when no guardian has been
appointed by the father, or jointly with any guardian appointed
by the father. When no guardian has been appointed by the
father, or if the guardian or guardians appointed by the father is
or are dead, or refuses or refuse to act, the Court may, if it shall
think fit, from time to time appoint a guardian or guardians to act
jointly with the mother.

3. — (1). The mother of any infant may by deed or will appoint any
person or persons to be guardian or guardians of such infant after
the death of herself and the father of such infant (if such infant be
then unmarried), and where guardians are appointed by both
parents they shall act jointly.

(2.) The mother of any infant may by deed or will provisionally
nominate some fit person or persons to act as guardian or guardians
of such infant after her death jointly with the father of such
infant, and the Court, after her death, if it be shown to the satis-
faction of the Court that the father is for any reason unfitted to be
the sole guardian of his children, may confirm the appointment
of such guardian or guardians who shall thereupon be authorised
and empowered so to act as aforesaid, or make such other order in
respect of the guardianship as the Court shall think right.

(3.) In the event of guardians being unable to agree upon a

* See above, p. 69.

APPENDIX L 211

question affecting the welfare of an infant, any of them may
apply to the Court for its direction, and the Court may make such
order or orders regarding the matters in difference as it shall think
proper.

4. Every guardian in England and Ireland under this Act shall Powers of
have all such powers over the estate and the person, or over the guardian
estate (as the case may be), of an infant as any guardian appointed

by will or otherwise now has in England under the Act twelve
Charles the Second, chapter twenty-four, or in Ireland under the
Act of the Irish Parliament fourteen and fifteen Charles the Second,
chapter nineteen, or otherwise.

5. The Court may, upon the application of the mother of any Court may
infant (who may apply without next friend), make such order as it make orders
may think fit regarding the custody of such infant and the right as

of access thereto of either parent, having regard to the welfare of
the infant, and to the conduct of the parents, and to the wishes
as well of the mother as of the father, and may alter, vary, or dis-
charge such order on the application of either parent, or, after the
death of either parent, of any guardian under this Act, and in every
case may make such order respecting the costs of the mother and
the liability of the father for the same or otherwise as to costs as
it may think fit.

6. In England and Ireland the High Court of Justice, in any Power to
division thereof, and in Scotland either division of the Court of Court to
Session, may in their discretion, on being satisfied that it is for the
welfare of the infant, remove from his office any testamentary
guardian, or any guardian appointed or acting by virtue of this

Act, and may also, if they shall deem it to be for the welfare of
the infant, appoint another guardian in place of the guardian so
removed.

7. In any case where a decree for judicial separation, or a decree Guardian-
either nisi or absolute for divorce, shall be pronounced, the Court ship in case
pronouncing such decree may thereby declare the parent by reason of ?*™r.°®
of whose misconduct such decree is made to be a person unfit to separation!,
have the custody of the children (if any) of the marriage ; and, in

such case, the parent so declared to be unfit shall not, upon the
death of the other parent, be entitled as of right to the custody or
guardianship of such children.

8. In the application of this Act to Scotland the word guardian Application
shall mean tutor, and the word infant shall mean pupil. of Act to

9. In the construction of this Act the expression " the Court " Scotland,
shall mean — Interpreta-
tion of terms.

In England the High Court of Justice or the county court of the

district in which the respondent or respondents or any of them

may reside :
In Ireland the High Court of Justice or the county court of the

district in which the respondent or respondents or any of them

may reside :

P 2

212

APPENDIX I.

As to re-
moving pro-
ceedings and
appeals.

In Scotland the Court of Session or the sheriff court within
whose jurisdiction the respondent or respondents or any of
them may reside.

Any application under this Act to the High Court of Justice in
England or to the High Court of Justice in Ireland shall be made
to the Chancery Division of the said Courts respectively in such
manner as may be prescribed by Eules of Court.

In Scotland the expression " the Court of Session " shall mean
either division of the said court, and in vacation the Lord Ordinary
on the Bills.

10. In England and Ireland when any application has been
made under this Act to a county court the High Court of Justice
shall, at the instance of any party to such application, order
such application to be removed to the High Court of Justice and
there proceeded with before a judge of the Chancery Division on
such terms as to costs as it may think proper.

In England and Ireland an appeal shall lie to the High Court of
Justice from any order made by a county court under this Act ;
and, subject to any rules of court made after the passing of this
Act, any such appeal shall be heard by a judge of the Chancery
Division of the High Court of Justice at chambers or in court, as
he shall direct.

In Scotland any application made under this Act to a sheriff

court may be removed to the Court of Session, at the instance of

any party, in the manner provided by and subject to the conditions

40 & 41 Viet, prescribed by the ninth section of the Sheriff Courts (Scotland) Act,

c. 50. 1877.

In Scotland an appeal shall lie to either division of the Court of
Session from any order made by the Lord Ordinary on the Bills or
a sheriff court under this Act.

Rules as to 11. Rules for regulating the practice and procedure in any pro-
procedure, ceedings under this Act, and the forms in such proceedings may
from time to time be made —

(a) so far as respects the High Court of Justice or Her Majesty's
Court of Appeal in England or Ireland by Eules of Court ;
and

(b) so far as respects the Court of Session in Scotland by Act of
Sederunt; and

(c) so. far as respects any county court in England or Ireland and
the sheriff court in Scotland in like manner as rules and
orders respecting those courts can respectively for the time
being be made.

Tutors. 12. In Scotland tutors being administrators-in-law, tutors-nomi-

nate, and guardians appointed or acting in terms of this Act who
shall, by virtue of their office, administer the estate of any pupil,
shall be deemed to be tutors within the meaning of an Act passed
in the twelfth and thirteenth years of the reign of Her Majesty,

APPENDIX I. 213

intituled " An Act for the better protection of the property of
pupils, absent persons, and persons under mental incapacity, in
Scotland," and shall be subject to the provisions thereof : Provided
always, that such tutors being administrators-in-law, tutors-nomi-
nate, and guardians aforesaid shall not be bound to find caution in
terms of the twenty-sixth and twenty-seventh sections of the last
recited Act, unless the Court, upon the application of any party
having interest, shall so direct.

13. Nothing in this Act contained shall restrict or affect the Saving clause,
jurisdiction of the High Court of Justice in England, and of the
High Court of Justice in Ireland, or of any division of the said
Courts, and of the Court of Session in Scotland, to appoint or
remove guardians, or (in the case of Scotland) tutors or factors loco
tutoris or otherwise in respect of infants.

( 214 )

APPENDIX J.*

Court of
Chancery
may order
that mother
may have
access to and
custody of
infant under
sixteen years.

In case of
separation
deed between
father and
mother.

Kepeal of
2 & 3 Viet,
c. 54.

36 VICT. c. 12.

An Act to amend tJie Law as to the Custody of Infants.

[24th April, 1873.]

WHEREAS it is expedient further to amend the law relating to the
custody of infants :

1. From and after the passing of this Act it shall be lawful for
the High Court of Chancery in England or in Ireland respectively,
upon hearing the petition by her next friend of the mother of any
infant or infants under sixteen years of age, to order that the
petitioner shall have access to such infant or infants at such times
and subject to such regulations as the Court shall deem proper, or
to order that such infant or infants shall be delivered to the mother,
and remain in or under her custody or control, or shall, if already
in her custody or under her control, remain therein until such
infant or infants shall attain such age, not exceeding sixteen, as the
Court shall direct ; and further, to order that such custody or
control shall be subject to such regulations as regards access by the
father or guardian of such infant or infants, and otherwise, as the
said Court shall deem proper, f

2. No agreement contained in any separation deed made between
the father and mother of an infant or infants shall be held to be
invalid by reason only of its providing that the father of such
infant or infants shall give up the custody or control thereof to
the mother : Provided always, that no Court shall enforce any
such agreement if the Court shall be of opinion that it will not be
for the benefit of the infant or infants to give effect thereto.

3. The Act of the second and third Victoria, chapter fifty-four,
intituled "An Act to amend the law relating to the custody of
infants," shall be and is hereby repealed.

* See above, p. 70.

f This section is now superseded by the Guardianship of Infants Act, 1886,
8. 5, above, p. 211.

( 215 )

APPENDIX K*

52 & 53 YICT. c. 44.

An Act for the Prevention of Cruelty to, and better Protection of,
Children. [26th August, 1889.]

BE it enacted by the Queen's most Excellent Majesty, by and with Punishment
the advice and consent of the Lords Spiritual and Temporal, and for ill-treat-

Commons, in this present Parliament assembled, and by the ment "™*
. , ' p ,, r. ,-, J neglect of

authority of the same, as follows : children.

1. Any person over sixteen years of age who, having the custody,
control, or charge of a child, being a boy under the age of fourteen
years, or being a girl under the age of sixteen years, wilfully ill-
treats, neglects, abandons, or exposes such child, or causes or
procures such child to be ill-treated, neglected, abandoned, or
exposed, in a manner likely to cause such child unnecessary
suffering, or injury to its health, shall be guilty of a misdemeanor,
and, on conviction thereof on indictment, shall be liable, at the
discretion of the Court, to a fine not exceeding one hundred pounds,
or alternatively, or in default of payment of such fine, or in addition
to payment thereof, to imprisonment, with or without hard labour,
for any term not exceeding two years, and on conviction thereof
by a court of summary jurisdiction, in manner provided by the
Summary Jurisdiction Acts, shall be liable, at the discretion of the
Court, to a fine not exceeding twenty-five pounds, or alternatively,
or in default of payment of such fine, or in addition thereto, to
imprisonment, with or without hard labour, for any term not ex-
ceeding three months.

2. If it be proved that a person convicted on indictment as afore- Power to in-
said was interested in any sum of money accruable or payable in crease fine
the event of the death of the child, and had knowledge that such ^Se^ r
sum of money was accruing or becoming payable, the Court may, interested in
in its discretion, increase the amount of the said fine so that the death of
fine shall not exceed two hundred pounds. Such interest as afore- child,
said in any sum of money accruable or payable in the event of the

death of the child shall be charged in the indictment and put to
the jury in the same way, as far as may be, as a previous conviction
is now charged and put.

* See above, p. 73.

216

APPENDIX K.

Restrictions
on employ-
ment of
children.

3. Any person who —

(a) causes or procures any child, being a boy under the age of
fourteen years, or being a girl under the age of sixteen years,
to be in any street for the purpose of begging or receiving
alms, or of inducing the giving of alms, whether under the
pretence of singing, playing, performing, offering anything
for sale, or otherwise ; or

(6) causes or procures any child, being a boy under the age of
fourteen years, or being a girl under the age of sixteen years,
to be in any street, or in any premises licensed for the sale of
any intoxicating liquor, other than premises licensed according
to law for public entertainments, for the purpose of singing,
playing, or performing for profit, or offering anything for sale,
between ten p.m. and five a.m. ; or

(c) causes or procures any child, under the age of ten years to
be at any time in any street, or in any premises licensed for
the sale of any intoxicating liquor, or in premises licensed
according to law for public entertainments, or in any circus
or other place of public amusement to which the public are
admitted by payment for the purpose of singing, playing, or
performing for profit, or offering anything for sale,

shall, on conviction thereof by a court of summary jurisdiction in
manner provided by the Summary Jurisdiction Acts, be liable, at
the discretion of the Court, to a fine not exceeding twenty-five
pounds or alternatively, or in default of payment of the said fine,
or in addition thereto, to imprisonment, with or without hard
labour, for any term not exceeding three months.

Provided that any local authority may, if they think it necessary
or desirable so to do, from time to time by byelaw extend or restrict
the hours mentioned in sub-section (6) of this section, either on
every day or on any specified day or days of the week, and either
as to the whole of their district or as to any specified area therein.

Provided also, that in the case of any entertainment or series of
entertainments to take place in premises licensed according to law
for public entertainments, or in any circus or other place of public
amusement as aforesaid, where it is shown to the satisfaction of a
petty sessional court, or in Scotland the school board, that proper
provision has been made to secure the health and kind treatment
of any children proposed to be employed thereat, it shall be lawful
for the said Court or school board, anything in this Act notwith-
standing, to grant a licence for such time and during such hours
of the day, and subject to such restrictions and conditions as it may
think fit for any child exceeding seven years of age, of whose
fitness to take part in such entertainment or series of entertain-
ments without injury the said Court or school board is satisfied, to
take part in such entertainment or series of entertainments, and
such licence may at any time be varied, added to, or rescinded by
the said Court or school board upon sufficient cause being shown ;

APPENDIX K. 217

and such licence shall be sufficient protection to all persons acting
under or in accordance with the same.

A Secretary of State may assign to any inspector appointed, or
to be appointed under section sixty-seven of the Factory and
Workshop Act, 1878, specially and in addition to any other usual
duties, the duty of seeing whether the restrictions and conditions
of any licence under this section are duly complied with, and any
such inspector shall have the same power to enter, inspect, and
examine any place of public entertainment at which the employ-
ment of a child is for the time being licensed under this section as
an inspector has to enter, inspect, and examine a factory or work-
shop under section sixty-eight of the same Act.

Nothing in this section shall affect the provisions of the Elemen-
tary Education Act, 1876, or the Education (Scotland) Act, 1878.

So much of sub-section (c) of this section as makes it an offence 39 & 40 Viet,
to cause or procure a child to be in premises licensed according to c- 79«
law for public entertainment, or in any circus or other place of ^ 7* Vlctm
public amusement, for the purpose of singing, playing, or perform-
ing for profit, shall not come into operation until the first day
of November one thousand eight hundred and eighty-nine.

4. — (1.) Any constable may take into custody without warrant Taking of
any person who within view of such constable commits an offence offender into
under this Act, where the name and residence of such person are cust°dy, and
unknown to such constable and cannot be ascertained by such child0 *
constable ; and any constable may take to a place of safety any
child in respect of whom an offence under section one or sub-section
(a) of section three of this Act has been committed, and the child
may there be detained until it can be brought before a court of
summary jurisdiction, and such Court may cause the child to be
dealt with as circumstances may admit and require until the
charge made against any person in respect of the said offence has
been determined by the committal for trial, or conviction, or dis-
charge of such person.

(2.) Where a constable arrests any person without warrant in
pursuance of this section the inspector or constable in charge of
the station to which such person is conveyed shall, unless in his
belief the release of such person on bail would tend to defeat the
ends of justice, or to cause injury or danger to the child against
whom the offence is alleged to have been committed, release the
person arrested on his entering into such a recognisance, with or
without sureties, as may in his judgment be required to secure the
attendance of such person upon the hearing of the charge.

5. — (1.) Where a person having the custody or control of a
child, being a boy under the age of fourteen, or a girl under the
age of sixteen years, has been

(a) convicted of committing in respect of such child an offence Disposal of
under section one of this Act, or any offence involving bodily child b? orc
injury to the child and punishable with penal servitude ; or of Court-

218 APPENDIX K.

committed for trial for any such offence ; or
bound over to keep the peace towards such child,

any person may bring such child before a petty sessional court ;
and the Court, if satisfied on inquiry that it is expedient so to deal
with the child, may order that the child be taken out of the
custody of such person and committed to the charge of a relation
of the child, or some other fit person named by the Court, such
relation or other person being willing to undertake such charge
until it attains the age of fourteen years, or in the case of a girl
sixteen years, or in either case for any shorter period, and may of
his own motion or on the application of any person from time to
time renew, vary, and revoke any such order : Provided that no
order shall be made under this section unless a parent of the child
is under committal for trial for having been, or has been proved to
have been, party or privy to the offence, or has been bound over to
keep the peace towards such child.

(2.) Any person to whom a child is so committed shall, whilst
the order is in force, have the like control over the child as if he
were its parent, and shall be responsible for its maintenance, and
the child shall continue under the control of such person, notwith-
standing that it is claimed by its parent ; and any Court having
power so to commit a child shall have power to make the like
orders on the parent of the child to contribute to its maintenance
during such period as aforesaid as if the child were detained under
the Industrial Schools Acts, and such orders may be made on
the complaint or application of the person to whom the child is
for the time being committed, and the sums contributed by the
parent shall be paid to such person as the Court may name, and be
applied for the maintenance of the child. In determining on the
person to whom the child shall be so committed, the Court shall
endeavour to ascertain the religious persuasion to which the child
belongs, and shall, if possible, select a person of the same religious
persuasion, and such religious persuasion shall be specified in the
order ; and in any case where the child has been placed pursuant
to any such order with a person not of the same religious persuasion
as that to which the child belongs, the Court shall, on the applica-
tion of any person in that behalf, and on its appearing that a fit
person of the same religious persuasion is willing to undertake the
charge, make an order to secure his being placed with a person of
the same religious persuasion.

Provided that if the order to commit the child to the charge of
some relation or other person be made in respect of any person
having been committed for trial for an offence, as specified in sub-
section (1) (b) of this section, the Court shall not be empowered to
order the parent of the child to contribute to its maintenance prior
to the trial of such person ; and if he be acquitted of such charge,
or if such charge be dismissed for want of prosecution, then any
order that may have been made under this section shall forthwith

APPENDIX K. 219

be void, except with regard to anything which may have been
lawfully done under it.

(3.) One of Her Majesty's Principal Secretaries of State in
England, and in Scotland the Secretary for Scotland, and in Ireland
the Lord-Lieutenant of Ireland may at any time in his discretion
discharge a child from the custody of any person to whom it is
committed, in pursuance of this section, either absolutely or on
such conditions as such Secretary of State, Secretary, or Lord-
Lieutenant approves, and may, if he shall think fit, from time to
lime make, alter, or revoke rules in relation to children so com-
mitted to any person, and to the duties of such persons with respect
to such children.

6. — (1.) If it appears to any stipendiary magistrate or to any power of
two justices of the peace, on information made before him or them search,
on oath by any person who, in the opinion of the magistrate or
justices, is bond fide acting in the interest of any child, that there
is reasonable cause to suspect that such child, being a boy under
the age of fourteen years, or a girl under the age of sixteen years,
has been or is being ill-treated or neglected in any place within
the jurisdiction of such magistrate or justices in a manner likely
to cause the child unnecessary suffering or to be injurious to its
health, such magistrate or justices may issue a warrant autho-
rising any person named therein, to search for such child, and if it
is found to have been or to be ill-treated or neglected in manner
aforesaid, to take it to and detain it in a place of safety until it
can be brought before a court of summary jurisdiction ; and the
Court before whom the child is brought may cause it to be dealt
with in the manner provided by section four.

Provided always, that the powers herein-before conferred on
any two justices may be exercised by any one justice, if upon the
information it appears to him to be a case of urgency : Provided
also, that in the case of Scotland the jurisdiction hereby conferred
on a magistrate or two justices shall be exercised only by a sheriff
or sheriff substitute.

(2.) The magistrate or justices or justice, or in Scotland the
sheriff or sheriff substitute, issuing such warrant may by the same
warrant cause any person accused of any offence in respect of the
child, to be apprehended, and brought before a justice, and pro-
ceedings to be taken for punishing such person according to law.

(3.) Any person authorised by warrant under this section to
search for any child, and to take it to and detain it in a place of
safety, may enter (if need be by force ) any house, building, or
other place specified in the warrant, and may remove the child
therefrom.

(4.) Provided always, that every warrant issued under this
section shall be addressed to and executed by some superintendent,
inspector, or other superior officer of police, who shall be accom-
panied by the person making the information, if such person so
desire, unless the magistrate, justices, or justice otherwise direct,

220

APPENDIX K.

Evidence of
accused

Evidence of

11 & 12 Viet,

iktfc'i ft in t

14 & 15 Viet,

C. JO.

41 & 42 Viet.
c- 49-

Presumption
•f Md° °f

Appeal from
summary con
viction to
general or

?"a

and may also, if the magistrate, justices, or justice so direct, be
accompanied by a registered medical practitioner.

7. In any proceeding against any person for an offence under
^his Act, such person shall be competent but not compellable, and
the wife or husband of such person may be required to attend to
give evidence as an ordinary witness in the case, and shall be
competent but not compellable to give evidence.

8. Where, in any proceeding against any person for an offence
under this Act, the child in respect of whom the offence is charged
to have been committed, or any other child of tender years who is
tendered as a witness, does not in the opinion of the Court under-
stand the nature of an oath, the evidence of such child may be
received, though not given upon oath, if, in the opinion of the
Court, such child is possessed of sufficient intelligence to justify
the reception of the evidence, and understands the duty of
speaking the truth. And the evidence of such child, though not
given on oath or affirmation, but otherwise taken and reduced into
writing, in accordance with the provisions of section seventeen of
the Indictable Offences Act, 1848, or of section fourteen of the

Sessions (Ireland) Act, 1851, shall be deemed to be a de-
within the meaning of those sections :

T» • 1 1 1 1 i

Provided that —

(a.) A person shall not be liable to be convicted of the offence
unless the testimony admitted by virtue of this section and
given on behalf of the prosecution, is corroborated by some
other material evidence in support thereof implicating the
accused : and

(6.) Any child whose evidence is received as aforesaid, and who
shall wilfully give false evidence, shall be liable to be indicted
and tried for such offence, and on conviction thereof may be
adjudged such punishment as is provided for by section eleven
of the Summary Jurisdiction Act, 1879, in the case of juvenile
offenders.

9. Where a person is charged with an offence under this Act in
respect of a child who is alleged in the charge or indictment to be
under any specified age, and the child appears to the Court to be
under that age, such child shall for the purposes of this Act be
deemed to be under that age, unless the contrary is proved.

^ When, in pursuance of this Act, any person is convicted by
a court of summary jurisdiction of an offence, and such person did
not plead guilty or admit the truth of the information, or when in
foe case of any application to the Court under section five of this
Act, any party thereto thinks himself aggrieved by any order or
decision of the Court, he may appeal against such conviction, or
order, or decision, in England and Ireland to a court of general or
quarter sessions, and in Scotland to the High Court of Justiciary
in the manner provided by the Summary Prosecutions Appeals
(Scotland) Act, 1875, or any Act amending the same.

APPENDIX R. 221

11. Where a misdemeanor under this Act is tried on indictment,
the expenses of the prosecution shall be defrayed in like manner
as in the case of a felony.

12. The guardians of any union or parish, or in Scotland the 38 & 39 Viet.
parochial board of any parish or combination, may, out of the c. 62.
funds under their control, pay the reasonable costs and expenses Expenses of
of any proceedings which they have directed to be taken under prosecution,
this Act in regard to the ill-treatment, neglect, abandonment, or Guardians
exposure of any child, and, in the case of a union, shall charge ma7 Pa7 cos*3
such costs and expenses to the common fund.

13. Every byelaw under this Act shall be subject —

(a.) In England to section one hundred and eighty -four of the Provision as
Public Health Act, 1875, as if every local authority in England to byelaws.
under this Act were a local authority within the meaning of
that section, hut with the substitution of one of Her Majesty's
Principal Secretaries of State for the Local Government 38 & 39 Viet.
Board ; and o. 55.

(&.) In Scotland to so much of section sixty- two of the Public 30 & 31 Viet.
Health (Scotland) Act, 1867, as provides for the confirmation c. 101.
of rules and regulations and the proceedings preliminary to
confirmation as if such rules and regulations included byelaws
under this Act, and the local authority under this Act were a
local authority within the meaning of that section, but with
the substitution of the Secretary for Scotland for the Board of
Supervision; and

(c.) In Ireland to section two hundred and twenty-one of the 41 & 42 Viet
Public Health (Ireland) Act, 1878, with the substitution ofc-52.
the Lord-Lieutenant for the Local Government Board.

14. Nothing in this Act contained shall be construed to take Act not to
away or affect the right of any parent, teacher, or other person take away
having the lawful control or charge of a child to administer ri£nt of

punishment to such child. p<Jrent? f c'' to

i r -ITTI • ,1 • , • i .-I-,-! -, administer

15. Where an otience against this Act is also punishable under punishment

any other Act, or at common law, it may be prosecuted and savino. for
punished either under this Act, or under the other Act, or at proceedings
common law, so that no person be punished twice for the same under other
offence. laws.

16. Sections eight and, eleven of this Act shall not apply to Ss. 8, 11 not
Scotland. to apply to

17. In this Act— Scotland.
The expression " Summary Jurisdiction Acts " means — Definitions.

(a.) as regards England, the Summary Jurisdiction (English) 27 & 28 Viet.

Acts ; and c. 53.

(6.) as regards Scotland, the Summary Jurisdiction (Scotland) 44 & 45 Viet.

Acts, 1864 and 1881, and any Act amending the same; and c' 33'
(c.) as regards Ireland, within the police district of Dublin

metropolis, the Acts, regulating the powers and duties of

222 APPENDIX K.

justices of the peace for that district, or of the police for that
14 & 15 Viet. district ; and elsewhere in Ireland, the Petty Sessions (Ire-

c- 93. land) Act, 1851, and any Act amending the same;

The expression " court of summary jurisdiction " —

(a.) as regards England, has the same meaning as in the
42 & 43 Viet. Summary Jurisdiction Act, 1879 ; and

c. 49. (fc.) as regards Scotland, means the sheriff, or sheriff substitute ;

and

(c.) as regards Ireland, means any justice or justices of the
peace, police magistrate, or officer, by whatever name called,
to whom jurisdiction is given by the Summary Jurisdiction
Acts or any Acts therein referred to.

The expression " petty sessional court " —

(a.) as regards England, has the same meaning as in the
Summary Jurisdiction Act, 1879 ;

as regards Scotland and Ireland, has the same meaning
as the expression court of summary jurisdiction as above
denned.

The expression " street" includes any highway or other public

place, whether a thoroughfare or not ;

The expression " place of safety " includes a workhouse and any
place certified by the local authority by byelaw under this
Act for the purposes of this Act ;

The expression " parent " when used in relation to a child
includes guardian and every person who is by law liable to
maintain the child ;

The expression "committed for trial" means, as regards
England or Ireland, committed to prison or admitted to bail
11 & 12 Viet. in manner provided in the Indictable Offences Act, 1848, or

?i4*'i* v tne Petty Sessions (Ireland) Act, 1851.

I 9f The expression " Industrial Schools Acts " means—

29 & 30 Viet. (a.) as regards England and Scotland, the Industrial Schools

c. H8. Act, 1866, and the Acts amending the same, or any Act of the

present or any future session of Parliament repealing that
Act and re-enacting the provisions thereof with or without
modifications, and

31 & 32 Viet. (&.) as regards Ireland, the Industrial Schools Act (Ireland),

c- 25» 1868, and the Acts amending the same.

The expression " local authority " means, as regards any borough
in England, the council of the borough ; as regards the city
of London, the common council; as regards the county of
London, the county council ; and as regards any other place
in England, the urban or rural sanitary authority ; as regards
any burgh in Scotland being either a royal burgh or a burgh

APPENDIX K. 223

returning or contributing to return a member to Parliament,
the town council ; as regards any police burgh, in Scotland,
the Commissioners of Police thereof, and as regards any
county in Scotland exclusive of any such burgh, the Com-
missioners of Supply, or in their place any other body by any
Act of this present session of Parliament entrusted with the
administrative business of such county; and as regards
Ireland the sanitary authority within the meaning of the
Public Health (Ireland) Act, 1878. 41 & 42 Viet.

The expression " Lord-Lieutenant " includes Lords Justices or c> 52>
other Chief Governor or Governors of Ireland for the time
being.

As regards Scotland —

The expression " misdemeanor " means crime and offence ;

The expression "enter into a recognisance with or without
sureties " means grant a bond of caution ;

The expression " justice of the peace " means sheriff or sheriff
substitute ;

The expression " workhouse " means poor house ;

18. Section thirty-seven of the Poor Law Amendment Act, 1868, Repeal of

is hereby repealed. 31 & 32 Vint.

Provided that such repeal shall not affect — °* 122' s> 37*

(a.) Anything duly done or suffered under the enactment

herebj7 repealed ; or
(6.) Any penalty, forfeiture, or punishment incurred under any

offence committed against the enactment hereby repealed ; or
(c.) Any legal proceeding in respect of any penalty, forfeiture,

or punishment ;

and any such legal proceeding may be instituted and carried on,
and the penalty, forfeiture, or punishment enforced, in like
manner as if this Act had not passed.

19. This Act may be cited as the Prevention of Cruelty to, and Short title.1
Protection of, Children Act, 1889.

( 224 )

Control of
guardians
over child
deserted by
parent.

APPENDIX L.*

52 & 53 VICT. c. 56.

An Act to amend the Law respecting Children in Workhouses, and
respecting the borrowing of Money by Guardians and Managers of
District Schools, and respecting the managers of the Metropolitan
Asylum District. [30th August, 1889.]

BE it enacted by the Queen's most Excellent Majesty, by and with
the advice of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority
of the same as follows :

1. — (1.) Where a child is maintained by the guardians of any
union and was deserted by its parent, the guardians may at any
time resolve that such child shall be under the control of the
guardians until it reaches the age, if a boy, of sixteen, and if a girl
of eighteen years, and thereupon until the child reaches that age all
the powers and rights of such parent in respect of that child shall,
subject as in this Act mentioned, vest in the guardians ;

Provided that the guardians may .rescind such resolution, if they
think that it will be for the benefit of the child that it should be
rescinded, or may permit such child to be either permanently or
temporarily under the control of such parent, or of any other
relative, or of any friend.

(2.) A court of summary jurisdiction, if satisfied on complaint
made by a parent of the child, that the child has not been main-
tained by the guardians, or was not deserted by such parent, or
that it is for the benefit of the child that it should be either
permanently or temporarily under the control of such parent, or
that the resolution of the guardians should be determined, may
make an order accordingly, and any such order shall be complied
with by the guardians, and if the order determines the resolution,
the resolution shall be thereby determined as from the date of the
order, and the guardians shall cease to have the rights and powers
of the parent as respects such child.

(3.) For the purposes of this Act a child shall be deemed to be
maintained by the guardians if it is wholly or partly maintained
by them in a workhouse or in any district school, separate school,
separate infirmary, sick asylum, hospital for infectious diseases,

* See above, p. 73.

APPENDIX L. 225

institution for the deaf, dumb, blind, or idiots, or any certified
school under the Act of the session of the twenty-fifth and twenty-
sixth years of the reign of Her present Majesty, chapter forty-three,
or is boarded out by the guardians, whether within or without the
limits of the union.

(4.) Where a parent is imprisoned under a sentence of penal
servitude or imprisonment in respect of an offence committed
against a child, this section shall apply as if such child had been
deserted by that parent.

(5.) Nothing in this section shall relieve any person from any
liability to contribute to the maintenance of a child, but the fact
of such contribution being made shall not deprive the guardians
of any of the powers and rights conferred on them by this section.

(6.) Nothing in this section shall authorise the guardians to
cause a child to be educated in any religious creed other than that
in which the child would have been educated but for any reso-
lution of the guardians under this section, nor affect the enact-
ments respecting the religious education of a child maintained by
the guardians, or respecting the right of any minister of the
same religious persuasion as the child to visit and instruct the
child, nor affect any of the enactments specified in the Schedule to
this Act, which enactments relate to the religious education of
children maintained by guardians.

9. The section of this Act relating to the control of the Application
guardians of a union over a child deserted by its parents, but no to Ireland,
other section, shall apply to Ireland, and in such application of the

said section to Ireland, —

(a.) The word " Guardians " means the Board of Guardians of
the poor for a union, under the provisions of the Act of the
session of the first and second years of the reign of Her l & 2 Viet,
present Majesty, chapter fifty-six, intituled " An Act for the c. 56.
more effectual relief of the destitute poor in Ireland," and the
Acts amending the same :

The word " union " means a union for the relief of the destitute
poor under the provisions of the said Acts :

(b.) A court of summary jurisdiction shall be constituted of
two or more justices of the peace in petty sessions, sitting at
a place appointed for holding petty sessions, or of some
magistrate or officer for the time being empowered by law to
do alone any act authorised to be done by more than one
justice of the peace, and sitting at some court or other place
appointed for the administration of justice.

10. This Act may be cited as the Poor Law Act, 1889. Short title
Expressions in this Act when used with reference to England and construe-

shall have the same meaning as in the Poor Law Act, 1879. *">n.

42 & 43 Viet.
c. 54.

226 )

APPENDIX M.*
CHAPTER 3.

An Act to amend the Law relating to the Custody of Children.

[26th March, 1891.]

BE it enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
authority of the same, as follows :

Power of 1. Where the parent of a child applies to the High Court or the

Court as to Court of Session for a writ or order for the production of the child,

child an(^ *ke Court is of opinion that the parent has abandoned or

deserted the child, or that he has otherwise so conducted himself

that the Court should refuse to enforce his right to the custody of

the child, the Court may in its discretion decline to issue the writ

or make the order.

Power to 2. If at the time of the application for a writ or order for the

Court to order production of the child the child is being brought up by another
repaymen^o ^ pers0n, or js "boarded out by the guardians of a poor law union, or
ing up child by a parochial board in Scotland, the Court may, in its discretion,
if it orders the child to be given up to the parent, further order
that the parent shall pay to such person, or to the guardians of
such poor law union, or to such parochial board, the whole of the
costs properly incurred in bringing up the child, or such portion
thereof as shall seem to the Court to be just and reasonable
having regard to all the circumstances of the case.
Court in 3. Where a parent has —

making order

to Imve re- (a) abandoned or deserted his child ; or

gard to con- (&.) allowed his child to be brought up by another person at
duct of parent. ^hat person's expense, or by the guardians of a poor law
union, for such a length of time and under such circum-
stances as to satisfy the Court that the parent was unmindful
of his parental duties ;

the Court shall not make an order for the delivery of the child to
the parent, unless the parent has satisfied the Court that, having
regard to the welfare of the child, he is a fit person to have the
custody of the child,

* See abovi', p. 73.

APPENDIX M. 227

4. Upon any application by the parent for the production Power to
or custody of a child, if the Court is of opinion that the parent c°urt as to
ought not to have the custody of the child and that the child ^OUg JJluca-
is being brought up in a different religion to that in which the tiSn.
parent has a legal right to require that the child should be

brought up, the Court shall have power to make such order as
it may think fit to secure that the child be brought up in the
religion in which the parent has a legal right to require that the
child should be brought up. Nothing in this Act contained shall
interfere with or affect the power of the Court to consult the
wishes of the child in considering what order ought to be made,
or diminish the right which any child now possesses to the
exercise of its own free choice.

5. For the purposes of this Act the expression " parent " of a Definitions of
child includes any person at law liable to maintain such a child or || parent ^ and
entitled to his custody, and " person " includes any school or Person-
institution.

6. This Act may be cited as the Custody of Children Act, 1891. Short title.

( 228 )

APPENDIX N.*

REPORT OF SELECT COMMITTEE OF THE HOUSE OF COMMONS APPOINTED
TO INQUIRE INTO THE OPERATION OF THE PRISONS ACT AND
PRISON MINISTERS ACT, so FAR AS RESPECTS THE RELIGIOUS
INSTRUCTION PROVIDED FOR PRISONERS OTHER THAN THOSE
BELONGING TO THE ESTABLISHED CHURCH.

YOUR Committee have taken evidence upon the working of the
Prisons and Prison Ministers Acts, by which the appointment ot
prison ministers other than the chaplain of the Established Church
is left to the discretion of the different prison authorities through-
out the country. The result has been great inequality in the
working of the system. In some prisons, a Roman Catholic prison
minister is appointed with an adequate salary, and is placed on
terms of equality with the Protestant chaplain ; in others, a Roman
Catholic prison minister is appointed with a salary, but is not
permitted to assemble the Roman Catholic prisoners for Divine
Service, being restricted to visiting them in their cells ; in a third
class, a Roman Catholic clergyman is permitted to visit the prisoners
of his persuasion, and to assemble them for Divine Service, but is
denied a salary : whilst in a fourth the visits of a Roman Catholic
clergyman -are only permitted at the express desire of a prisoner.
This inequality is specially felt as a grievance by Roman Catholic
prisoners, who cannot receive the ministrations of the chaplain of
the Established Church without offending against the laws of their
own religious persuasion.

Your Committee are of opinion that it is inexpedient and
contrary to sound policy that such inequality should exist in the
working of our prison system, and that it is desirable that
prisoners of all religious persuasions should be, as far as possible,
placed upon a footing of equality with regard to religious minis-
tration and instruction. In this opinion they are supported by the
evidence of Captain Du Cane, the present, Colonel Henderson, the
late, Chairman of the Directors of Convict Prisons, and Sir Walter
Crofton, as to the satisfactory working of the system in the
Government prisons, where salaried Roman Catholic chaplains
attend the prisoners of their own persuasion, and are recognised as
officers of the prison. Your Committee recommend that this system
should be made general throughout the country.

* See above, p. 103.

APPENDIX N.

229

The complaints which have arisen have related almost exclusively
to Roman Catholics. The cases in which Protestant prisoners have
objected to join in Church of England worship, or to receive
spiritual assistance from the chaplain, are very rare, and your
Committee are of opinion that when such cases may occasionally
occur, they may be satisfactorily met by the prison authorities under
the powers which by Act of Parliament they at present possess.

Your Committee are, therefore, of opinion that prison authorities
should be required by law to appoint Roman Catholic ministers in
prisons in which Roman Catholic prisoners are confined ; and that
hereafter the Roman Catholic minister, when so appointed, shall be
classed as one of the officers of the prison, and shall receive an
adequate salary for his services.

Your Committee are of opinion that the prison minister so
appointed should receive a salary according to the following
scale : — •

If the average number of prisoners belonging to the Roman
Catholic religion during the last three years shall have been — •

Number of Prisoners.

Minimum Salary.

£.

More than 10, and le

ss than 20

20 „

100

„ 100

200

100

„ 200

300

150

„ 300 .

•

200

Your Committee recommend that the Secretary of State should
have power to transfer prisoners of any denomination, whose
sentences exceed three months, from one prison to another, in order
to give greater facilities for religious worship and instruction
according to their special tenets.

30 May 1870.

( 230 )

APPENDIX 0.*

Kemerton School Trust-Deed.^

THIS INDENTURE, made the twenty- fourth day of May, one thousand
eight hundred and fifty-two, between the Eev. William Scott of
Little Malvern in the county of Worcester, clerk, Ferdinand Eystoii
of Overbury in the same county, esquire, and Compton John
Hanford of Wollas Hill in the same county, esquire, of the first
part ; the Eight Eeverend James Burgess of Clifton in the county
of Gloucester, Doctor in Divinity and Eoman Catholic Bishop, of
the second part; and Charles Edward Hanford of Wollas Hill
aforesaid, esquire, Charles Porter of the Mythe in the said county
of Gloucester, esquire, Charles Tidmarsh of Kemerton in the said
county, gentleman, Eichard Tidmarsh of the same place, gentle-
man, George Eyston of Overbury in the said county of Worcester,
gentleman, and John Surman of Conderton in the same county,
yeoman, of the third part.

Whereas by Indenture of release dated the eighteenth day of
June, one thousand eight hundred and forty-two, and made
between Hannah Tidmarsh, widow, since deceased, of the first
part, the said Charles Tidmarsh of the second part, Luke Barber,
since deceased, and the said William Scott, Ferdinand Eyston, and
Compton John Hanford, of the third part, and which indenture
was duly enrolled in Her Majesty's High Court of Chancery on
the fifth day of August one thousand eight hundred and forty-two,
all that piece or parcel of meadow or pasture ground, being part
of a certain orchard commonly called or known by the name of
the Home Orchard, situate, lying, and being in the parish of
Kemerton aforesaid, and then in the tenure or occupation of
the said Charles Tidmarsh, and which said piece or parcel of
meadow or pasture ground contains by estimation half an acre, be
the same little more or less, and was bounded on the east by the
road or lane called the Bite Lane, leading out of the high road
from Evesham to Tewkesbury, up part of the village of Kemerton
aforesaid, towards the stone-quarry on Burdon Hill, on the south
by the said high road leading from Evesham to Tewkesbury
aforesaid, on the west by other part of the said orchard called

* See above, p. 107.

t Reprinted from the Report of the Catholic Poor School Committee for
1852, p. 103.

APPENDIX 0. 231

the Home Orchard, and on the north by an orchard of Mr. Richard
Baldwyn, and was then in the occupation of the said Charles
Tidmarsh, with the appurtenances, were conveyed and assured by
the said Hannah Tidmarsh and Charles Tidmarsh unto and to the
use of the said Luke Barber, William Scott, Ferdinand Eyston,
and Compton John Hanford, their heirs and assigns for ever, upon
trust and to the intent that the same piece or parcel of ground and
other hereditaments might from time to time and at all times
thereafter be devoted and appropriated as a site for a Church or
Chapel for the celebration of divine service according to the rites
and ceremonies of the Roman Catholic Church, and other buildings,
for the accommodation of the persons for the time being appointed
to and engaged in the service of the same Church or Chapel, and
for any school (if thought necessary) to be erected and built, and
at all times thereafter continued under the superintendence,
regulation, and control of the said Luke Barber, William Scott,
Ferdinand Eyston, and Compton John Hanford, or other the Trustees
or Trustee for the time being of the indenture now in recital, and
the patronage thereof to be vested in them, or such other Trustees
or Trustee for the time being, subject nevertheless to the rules and
ordinances for the time being of the Roman Catholic Church ; and
in order thereto, but subject to such rules and ordinances as afore-
said, it should be lawful for the said Luke Barber, William Scott,
Ferdinand Eyston, and Compton John Hanford, or such other
Trustees or Trustee for the time being as aforesaid, to remove or
cause to be removed all or any of the buildings thereafter to be
erected on the said piece or parcel of ground, or to convert or
cause to be converted the same or any of them to such uses and
in such manner as the said Luke Barber, William Scott, Ferdinand
Eyston, and Compton John Hanford, or such other Trustees or
Trustee for the time being as aforesaid, should think proper, and
likewise from time to time to alter or cause such alterations to be
made in the laying out such piece or parcel of ground, and in the
arrangement of any Church or Chapel and other buildings for the
time being standing thereon, as to them the said Luke Barber,
William Scott, Ferdinand Eyston, and Compton John Hanford, or
such other Trustees or Trustee, should seem meet, and also, if they,
or such other Trustees or Trustee as aforesaid, should think proper,
to permit the same piece or parcel of ground or any part thereof
to be used as a Burial Ground for persons professing the Roman
Catholic Religion, and to permit interments of the bodies of
persons professing such religion to be made within such Church or
Chapel ; and by the said Indenture now in recital it was agreed
and declared, that in case the Trustees and Trustee thereby
appointed or to be appointed, and thereinafter mentioned, should
depart this life, or refuse, decline, or become incapable to act in
the trusts thereby in them reposed, then and so often as the same
should happen it should be lawful for the surviving, continuing,
or acting Trustees or Trustee for the time being, or the executors

232 APPENDIX 0.

or administrators of such last surviving, continuing, or acting Trus-
tees as aforesaid, by any deed or deeds to be by them or him legally
executed, to nominate and appoint any other person or persons to
be a Trustee or Trustees in the place and stead of such Trustee or
Trustees, so dying, refusing, declining, or becoming incapable to act
as aforesaid, and that when and so often as any such new Trustees
or Trustee should be nominated and appointed as aforesaid, all the
said trust premises should be thereupon with all convenient speed
conveyed and assured in such manner as that the same shall and
may be legally and effectually vested in the newly appointed
Trustees or Trustee jointly with such surviving, continuing, and
acting Trustee or Trustees as aforesaid or solely, as occasion might
require, but nevertheless upon and for the trusts, intents and
purposes hereinbefore expressed and contained of and concerning
the same, and that every such new Trustees or Trustee shall and
may in all respects have the same powers and authorities as the
Trustees or Trustee in whose place they or he shall be so appointed
as aforesaid :

And whereas immediately after the date of the said last-
mentioned indenture the said Luke Barber, William Scott,
Ferdinand Eyston, and Compton John Hanford erected on the
site of the said piece or parcel of land a Koman Catholic Church
called St. Benet's, together with a chaplain's house and offices
thereto, and on the nineteenth day of February one thousand eight
hundred and forty-three the said church was opened, and has ever
since been used for divine service according to the rites of the
Roman Catholic Church.

And whereas by an indenture dated the twenty-fourth day of
October one thousand eight hundred and forty-four, and made
between the said Hannah Tidmarsh of the first part, the said
Charles Tidmarsh of the second part, and the said Luke Barber,
William Scott, Ferdinand Eyston, and Compton John Hanford of
the third part, and which indenture was duly enrolled in Her
Majesty's High Court of Chancery on the eleventh day of
November one thousand eight hundred and forty-four, all that
piece or parcel of orchard, meadow, or pa>ture land, being part of
a certain orchard commonly called or known by the name of the
Home Orchard, situate, lying, and being in the parish of Kemerton
in the county of Gloucester, and which said piece or parcel of
meadow or pasture ground contained by estimation one acre, be
the same little more or less, and was bounded on the east by the
said new Catholic Church called St. Benet's, and the house, offices,
and garden adjoining thereto, on the south by the high road
leading from Evesham to Tewkesbury, on the west by the other
part of the said orchard, and on the north by an orchard of Mr.
Richard Baldwyn, as the same was then marked out on the west
side thereof with stones, with the appurtenances, were conveyed
and assured by the said Hannah Tidmarsh and Charles Tidmarsh
unto and to the use of the said Luke Barber, William Scott,

APPENDIX 0. 233

Ferdinand Eyston, and Compton John Hanford, their heirs and
assigns for ever, but nevertheless upon such and the same trusts,
and to and for such and the same intents and purposes, and with,
under, and subject to such and the same powers, provisoes, agree-
ments and declarations, as were expressed of and concerning the piece
or parcel of land, meadow, or pasture ground, and other heredita-
ments situate, lying, and being in Kernerton aforesaid, on part
whereof the said Church or Chapel was then built, and which were
comprised in and conveyed by the said indenture of the eighteenth
day of June one thousand eight hundred and forty-two, or such and
so many of them as were then subsisting undetermined or capable
of taking effect :

And whereas the said Luke Barber departed this life on the
twenty-ninth day of December one thousand eight hundred and
fifty, leaving the said William Scott, Ferdinand Eyston, and
Compton John Hanford him surviving :

And whereas the said William Scott, Ferdinand Eyston, and
Compton John Hanford, in pursuance of the power so vested in
them as such surviving Trustees as aforesaid, have set out and
appropriated a part of the land comprised in and conveyed by the
said indenture of the twenty-fourth day of October one thousand
eight hundred and forty- four for a school and school-house for the
education of children of poor Roman Catholics belonging to the
spiritual cure of the said Church of St. Benet's, and in furtherance
of such object have lately entered into a contract for the building
and erection on a part of the piece of land above described of a
school and school-house, with all necessary appurtenances, for the
sum of two hundred and ninety pounds.

And whereas the said parties hereto, or some of them, have Recital of ail
applied to the Lords of the Committee of Council on Education for from Parlia-
aid out of the Parliamentary Grant for Education in furtherance mentary grant
of the objects of their said Trust, and have received a promise of pr J^fej°ei
a certain sum of money to be paid to the said parties hereto of the
second part, upon the fulfilment of the usual conditions :

Now this Indenture witnesseth, that in pursuance and for and Testutum.
in consideration of the premises, and with the approbation of the
said Eoman Catholic Bishop aforesaid, testified by his being a party
to and sealing and delivering these presents, it is hereby cove-
nanted, agreed, and declared by and between all the said parties
hereto, that they the said William Scott, Ferdinand Eyston, and Parcels.
Compton John Hanford, and the survivors and survivor of them,
and the heirs of such survivor, their or his assigns, and the
Trustees or Trustee for the time being of these presents, do and
shall stand and be seized and possessed of the piece or parcel of
land and hereditaments hereinafter described as a site for a school
and school-house and offices, as hereinbefore is mentioned, together
with all buildings and erections now standing and being or to be
hereafter erected and built thereon or on any part thereof, and
which said land and hereditaments, as to dimensions, boundaries,

234

APPENDIX 0.

Upon trusts
following,
viz., to build
school with
master's
house.

To permit
premises to be
used for a
Koman Ca-
tholic day
school.

School to be
open to in-
spection by
Her Majesty's
Inspectors.

and abuttals, are more particularly delineated and described in the
ground-plan drawn in the margin of these presents, with their and
every of their rights, members, and appurtenances, upon the trusts,
and to and for the ends, intents and purposes, and with, under,
and subject to the powers, provisoes, declarations, and agreements
hereinafter expressed or declared of and concerning the same (that
is to say) ;

Upon trust, that they the said parties hereto of the first part,
and the survivors and survivor of them, and the heirs and assigns
of such survivor, and the Trustees and Trustee for the time being
acting in the trusts of these presents, shall and do, with and out
of the moneys now or which may hereafter be possessed by them
or him for that purpose, and as soon as conveniently may be, erect,
build, and finish upon the said piece of land or ground, or upon
some part thereof, and from time to time and at all times hereafter
when it shall be necessary for the due accomplishment of the
trusts of these presents or any of them, repair, alter, enlarge, or
rebuild a school-house or school-houses, school-room or school-
rooms, together with a residence for a schoolmaster or school-
mistress, or both, and other offices, conveniences, and appurtenances,
or without any of them respectively, as and in such manner as the
Trustees or Trustee for the time being of these presents, with the
consent and concurrence in all other respects of the management
and superintendence of the school of the said Eoman Catholic
Bishop, or his successor for the time being, shall from time to time
deem necessary or expedient :

And upon further trust, that from time to time and at all times
after the erection and completion of the said school-house or school-
houses, or school-room or school-rooms, and residence or residences,
with the appurtenances, to permit and suffer such part or parts of
the same hereditaments and premises as is, are, or shall be designed
for that purpose to be used as a residence or residences for the
schoolmaster or schoolmasters, or schoolmistress or schoolmistresses,
or both, as the case may be, and to permit and suffer such school-
house and school-houses, school-room and school-rooms, with the
appurtenances, to be used, occupied, and enjoyed as and for a
Eoman Catholic week-day school or schools for the religious and
secular education of children and young persons, and, in such special
cases in which it may be thought expedient, of adult persons of both
sexes, in the usual branches of knowledge, and for no other purpose
whatsoever, according to and in conformity with the principles of
the Roman Catholic Church.

And it is hereby declared that the said school shall be at all
times open to the inspection of the inspector or inspectors of
schools for the time being appointed in conformity with the
Minute of the Committee of Her Majesty's Most Honourable Privy
Council on Education, relating to conditions of aid to Eoman
Catholic Schools, and bearing date the eighteenth day of December
one thousand eight hundred and forty-seven; provided always,

APPENDIX 0. 235

that such inspector or inspectors shall be in all things guided and
limited in their duties by the instructions of the said Committee
of Council to Her Majesty's Inspectors of Schools dated August
one thousand eight hundred and forty, so far as such instructions
are modified and limited by the said Minute of the eighteenth day
of December one thousand eight hundred and forty-seven, and are
applicable to Eoman Catholic Schools, but no further or otherwise ;
and any departure from the terms of the said last-mentioned Minute
on the part of Government shall not oblige the Committee of
Management of the said school to submit to any inspection other
than that mentioned in the said Minute of Council, or to refund
the money advanced by Government, or any part thereof ; and the
said school and premises, and the funds and present endowments
thereof, and such future endowments in respect whereof no other
disposition shall be made by the donor thereof, shall be directed,
controlled, governed, and managed in manner hereinafter specified By whom to
that is to say, the priest or priests for the time being having be managed
care of the congregation assembling for religious worship at tended^
the Eoman Catholic Church or Chapel of St. Benet's, in the
parish of Kemerton aforesaid, under or by virtue of faculties
duly received from or confirmed by the said Eoman Catholic
Bishop, or his successor for the time being, so long as such
faculties shall be subsisting and unrevoked, shall have the manage-
ment and superintendence of the religious instruction of all the
scholars attending the said school, with power on Sundays to
use or direct the premises to be used for the purposes of such
religious instruction exclusively ; but, in all other respects the
management and superintendence of the school and premises, and of
the funds and endowments thereof, and the selection, appointment,
and dismissal of the schoolmaster and schoolmistress and their
assistants (except as hereinafter is excepted), shall be vested in and
exercised by a Committee consisting of such priest or priests for
the time being holding faculties as aforesaid, and of six other
persons being Eoman Catholics, of whom the following, being the
several persons parties hereto of the third part, shall be the first
appointed ; that is to say, Charles Edward Hanford, Charles
Porter, Charles Tidmarsh, Eichard Tidmarsh, George Eyston, and
John Surman; and any vacancy which may occur in the number
of persons last mentioned, by death, resignation, incapacity, or
otherwise, shall be filled up by the election of a person (being a Managers,
Eoman Catholic), and the power of electing such person shall be h°w *p be
vested in the remaining members of the said Committee, until the suPPned-
said Eoman Catholic Bishop, or his successor for the time being,
shall in writing direct that the election shall be by the contributors
to the funds of the said school ; and thereupon and thenceforth
such election shall be vested in suob of the contributors during the
then current year, to the amount of ten shillings each at least to
the funds of the said School, being Eoman Catholics, as shall be
present at the meeting duly convened for the purpose of the

236

APPENDIX 0.

Secretar3r of
Manngers.

Chairman
of Managers.

Vote of the

majority

binding.

Casting vote.

Managers,
electors, and
teachers, to be
Roman Ca-
tholics.

Powers as-
signed in
matter of re-
ligion to spi-
ritual autho-
rities.

election, or, not being present thereat, shall vote by any paper or
papers sent on or before the day of such meeting to the Chairman
thereof, and signed by any such contributor, in which shall be
named the person or persons whom such contributor shall desire to
elect, and each of the contributors qualified to vote shall be
entitled at every such election to give one vote in respect of each
sum of ten shillings, so, however, that no person shall be entitled
to give more than six votes in respect of any sum so contributed ;
provided nevertheless, that no default of election, nor any vacancy,
shall prevent the other members of the Committee from acting
until the vacancy shall be filled up ; and the said Committee shall
annually select one of the members thereof to act as Secretary,
who shall keep minutes of the proceedings at the meetings thereof
in a book which shall be provided for that purpose, and shall give
due notice of all extraordinary meetings to each member of the
Committee; the priest or senior priest for the time being of the
Roman Catholic Church or Chapel of St. Benet's aforesaid shall be
Chairman of all Meetings of the Committee when present thereat ;
and at any meetings from which he shall be absent the members
attending the same shall appoint one of their number to be
Chairman thereof; and all matters which shall be brought before
sucK Meetings shall be decided by the majority of votes of the
members attending the same and voting upon the question ; and
if upon any matters there shall be an equality of votes, the
Chairman shall have a second, being the casting vote.

And it is hereby declared, that no priest shall be or continue a
member of the said Committee, or exercise any control or inter-
ference whatsoever in the said school, who does not hold faculties
duly received from or confirmed by the Roman Catholic Bishop
aforesaid or his successor for the time being subsisting and
unrevoked ; and that no person shall vote at any election for or be
appointed or continue a member of the said Committee, or be
appointed or continue a master or mistress in the said School, or
be employed therein in any capacity whatsoever, who is not a
Roman Catholic.

Provided always that the priest or senior priest for the time being
of the Roman Catholic Church or Chapel of St. Benet's aforesaid
shall have power to suspend any teacher from his office, or to
exclude any book from use in the said School upon religious grounds,
a written statement to that effect by the said priest or senior priest
having first been laid before the Committee, and such suspension
or exclusion shall endure until the decision of superior ecclesiastical
authority thereon can with due diligence be obtained, and such
decision shall, when obtained and laid before the Committee in
writing under the hand of such superior ecclesiastic, be final and
conclusive in the matter ; and the Committee of Management for
the tine being is hereby expressly required to take all such steps
as may be necessary for immediately carrying the said decision
into complete effect : and it is hereby further declared, that if the

APPENDIX 0. 237

said superior ecclesiastical authority, upon any such reference as
aforesaid, shall direct or award that any master, or mistress, or
teacher in the said school shall be dismissed, such direction or
award, when a copy thereof shall have been served upon the said
master, mistress, or teacher personally, or by the same being left
at his or her place of abode, or at the school aforesaid, addressed to
the said master, mistress, or teacher, as the case may require, shall
operate as a dismissal of the said master, mistress, or teacher, so
as to prevent him or her thenceforth from having any interest in
his or her office, or in the said School or premises under or by
virtue of this deed, and so as to disqualify him or her from holding
thenceforth any right or interest under this deed by virtue of his
or her previous or any future appointment :

And the Committee may from time to time, at a meeting to be Managers
held in the month of May in each year, elect and appoint a may elect a
Committee of not more than six ladies, being Eoman Catholics, to i^e^t^as-
assist them in the visitation and management of the girls' and a^ them,
infant schools, which Ladies' Committee shall remain in office until
the end of the current year.

And it is hereby declared, that the said Trustees and Trustee Account and
for the time being as to all matters and things relating to the said f1*?11^ books
trust estate and premises, and the said Committee of Management °
for the time being as to the School or Schools to be conducted on
the said premises, and the matters and things relating thereto,
shall respectively keep a book or books of account, in which from
time to time shall be plainly and regularly entered an account of
every receipt and disbursement by them, him, or any of them
received or made, and also of all debts and credits due to and owing
from or in respect of the said trust premises, or any part or parts
thereof, or in respect of the School or Schools to be conducted
thereupon, and in which book or books also an entry or entries of
or reference shall be made to all other documents, articles, or
matters and things necessary for the due and full explanation and
understanding of the same book or books of account respectively ;
and shall also in like manner respectively keep a book or books of
minutes, in which from time to time shall be plainly and regularly
entered minutes of all Trust Meetings and Committee Meetings
respectively, from time to time held under or by virtue of these
presents, and of the resolutions passed, and of all proceedings, acts,
and business had, taken, and done thereat respectively, and also of all
documents, articles, matters, and things necessary for the due and
full explanation and understanding of the same minutes, and of all
other things done in and about the execution of the trusts of these
presents ; and shall from time to time and at all times hereafter,
upon the request of the said Koman Catholic Bishop or his To be shewn
successor for the time being, produce and shew forth to him, and to the Roman
to any person or persons whom he shall from time to time in Catholic
writing appoint to see the same, all and every such book and books
of account and minutes, documents, articles, matters, and things,

238

APPENDIX 0.

Accounts to
bo audited.

Notico of
audit meet-
ings.

Notice of
other Trustee
Meetings.

Notice valid
though notice
does not
reach trustees
in certain

and permit and suffer copies or abstracts of or extracts from them,
or any of them, to be made and taken by the said Roman Catholic
Bishop or his] successor for the time being, or by any person or
persons whom he shall from time to time appoint in manner
aforesaid to make and take the same :

And the said books of account and minutes respectively, and all
documents, articles, matters, and things relating in anywise to the
said trust premises, or to the said School or Schools to be conducted
thereupon, shall, at least once in every year, upon a day to be
appointed by the said Roman Catholic Bishop or his successor for
the time being, or with his concurrence, and oftener if he shall at
any time desire, and shall give notice thereof in manner next here-
inafter mentioned, be regularly examined and audited by the said
Roman Catholic Bishop or his successor for the time being, or by
some person or persons whom he shall from time to time in writing
appoint, at a Meeting convened for that purpose ; and of every
such Audit Meeting fourteen days' notice in writing, specifying
the time, place, and purpose of such meeting, shall and may be
given, under the direction of the said Roman Catholic Bishop or
his successor for the time being, either by himself or by any one or
more of the said Trustees or Trustee for the time being, or by any
one or more of the Members of the said Committee of Manage-
ment, as the case may be, to each and every the other and others
of them, the said Trustees and Trustee for the time being, or to
each and every the other and others of the Members of the said
Committee of Management, and either personally served upon
him and them respectively, or left for or sent by the post to him
and them at his and their most usual place and places of abode :

And it is hereby further declared, that of all other Meetings of
the Trustees of these presents, and of all extraordinary Meetings
of the said Committee of Management, seven days' notice in
writing, specifying the time, place, and purpose or purposes of such
Meeting, and signed by at least two of the Trustees for the time
being, or by two of the Members of the said Committee of Manage-
ment, as the case may be, or in either case by the said Roman
Catholic Bishop or his successor for the time being, shall be given
to the others of them and him the said Trustees or Committee of
Management, and Roman Catholic Bishop or his successor for the
time being, and either personally served upon him and them, or
left for or sent by the post to him and them respectively at his and
their most usual place and places of abode or business.

Provided always, and it is hereby declared, that no meeting
held under or by virtue of these presents shall be invalid, or the
resolutions thereof be void or impeached, by reason that any such
notice or notices as aforesaid may not have reached any Trustee or
Trustees for the time being, or any member of the said Committee
of Management, who at the time of any such meeting may happen
to be beyond sea, or who, or whose place or places of abode or
business, shall not be known to and oannot reasonably be found

APPENDIX 0. 239

or discovered by the person or persons who is or are respectively
as aforesaid authorised to give any such notice or notices as
aforesaid :

And it is hereby declared, that at any audit or other meeting as Vote of the
last aforesaid held under or by virtue of these presents or of the trust paJ°nty bind-
hereof, or of any of them, the votes of the persons present and mg<
entitled to vote, or the votes of a majority of them, shall decide
any question or matter proposed at such meeting, and respecting
which such vote shall be given ; and in case the votes shall be
equally divided, then the Chairman for the time being of such
meeting shall give the casting vote, which casting vote he shall Casting vote,
have in addition to the vote which he shall be entitled to in his
character of Trustee, Committee-man, or otherwise :

Provided always, and it is hereby declared, that excepting where General pro-
the contrary is in these presents expressly declared or provided for, viso as to who
the said Homan Catholic Bishop or his successor for the time being, slla11 *j.e cbajr~
or such person as he shall from time to time nominate and^t^.°
appoint in writing under his hand as his deputy, shall be the
Chairman, and shall preside and have a vote at all meetings held
under or by virtue of these presents : but in case the said Roman
Catholic Bishop or his successor for the time being, or his deputy ap-
pointed as aforesaid shall at any time neglect or be unable to attend
at any such meeting as aforesaid, or if the said Roman Catholic
Bishop or his successor for the time being shall not attend at any
such meeting, and shall neglect to appoint a deputy as aforesaid,
then and in any or every of such cases it shall be lawful for the
persons for the time being composing such meeting, and entitled
to vote thereat, or for a majority of them, to elect from among
themselves a Chairman to preside at such meeting; and every
meeting so held, upon every such neglect or inability as aforesaid,
shall be as valid and effectual as if the said Roman Catholic
Bishop or his successor for the time being, or his deputy
appointed as aforesaid, had been the Chairman and had presided
thereat :

Provided always, and it is hereby agreed and declared, that it Power to
shall and may be lawful to and for the said persons parties hereto trustees, with
of the second part, or other the Trustees or Trustee for the time consent of
being of these presents, with the consent of the said Roman
Catholic Bishop or his successor for the time being, such consent to sell,
to be testified in writing under his hand, at any time or times
hereafter, absolutely to sell and dispose of all and singular the
said hereditaments and premises, or of such part or parts of the
same respecting which such consent in writing as aforesaid shall
be given, either by public auction or private contract, and either
altogether or in parcels, at such time or times, price or prices, and
with, under, and subject to such conditions or stipulations as to
the said Trustees or Trustee for the time being shall seem expe-
dient or reasonable, with power to them or him at any public auction
of the said hereditaments and premises or any of them, or any part

240 APPENDIX 0.

thereof, to buy in the same, and also to vary or rescind any contract
for the sale of the same or any part thereof, and to resell the here-
ditaments and premises which may from time to time be bought, or
the contract for sale of which shall be rescinded, without respon-
sibility for any loss to be occasioned thereby, and to convey and
assure the hereditaments and premises so sold to the purchaser or
purchasers thereof, his, her, or their heirs and assigns, or as he,
she, or they shall direct ; and the hereditaments and premises so
sold, conveyed, and assured as aforesaid shall thenceforth be held
and enjoyed for the purchaser or purchasers thereof, his, her, and
their heirs and assigns, freed and absolutely discharged from these
presents, and from the trusts hereby declared and every of them ;
and the Trustees and Trustee for the time being acting in the
trusts of these presents shall apply the money which shall arise
Appropriation from any such sale as aforesaid, so far as the same will extend, to
of proceeds of the discharge of all the incumbrances, liabilities, and responsi-
sale- bilities, whether personal or otherwise, lawfully contracted or

occasioned by virtue of these presents, or in the due execution of the
trusts thereof, or any of them, subject thereto, either for the purpose
of building or purchasing a more conveniently or eligibly situated
school-house or school-houses, or school-room or school-rooms, or a
site for the same, in the place and stead of the said hereditaments
and premises so sold and disposed of, to be settled upon the same
trusts, and to and for the same ends, intents, and purposes, and
with, under, and subject to the same powers, provisoes, and declara-
tions, as are in and by these presents expressed and declared, or such
of them as shall be then subsisting or capable of taking effect, or
for or towards the promotion of religious and general educational
purposes in the district or other ecclesiastical division in which the
said premisses are situated, upon the principles and in furtherance
of the educational ends and designs of the Roman Catholic Church,
as the said Trustees or the major part of them, with such consent
as aforesaid, shall direct :

Power to Provided always, and it is hereby agreed and declared, that it

trustees, with shall be lawful for the Trustees and Trustee for the time being of

KmnanCa these presents, with the consent of the said Roman Catholic

tholic Bishop Bishop or his successor for the time being (testified as aforesaid),

to let what is' from time to time to demise and lease all or any part or parts of

not required the said hereditaments and premises which for the time being

31 shall not be required fur the purposes and trusts aforesaid, or any

raS-Ttuit^nd °f them, to any person or persons, either for one year or from year to

to grant ' year, or for any term or number of years not exceeding twenty-one

building years : and also, with such consent as aforesaid, to demise all or any

leases. part or parts of the same hereditaments and premises which for the

time being may not be required for the purposes and trusts aforesaid,

or any of them, to any person or persons who shall be willing, and

agree and covenant, to improve the same by erecting or building

thereon any new house or houses, erections or building, or by

repairing or rebuilding any messuages, tenements, erections or

APPENDIX 0. 241

building which now are or hereafter shall be standing on such
part or parts of the said hereditaments and premises as are or shall
not be required for the purposes and trusts aforesaid, or any of
them, with powers or liberties to take down and use the materials
of any such messuages, tenements, erections, and buildings then
being thereon for the purpose of repairing, rebuilding, or new
building as aforesaid, for any term of years not exceeding ninety-
nine years ; and also, with such consent as aforesaid, from time to
time to accept a surrender of any such demise or lease as to the whole
or any part of any of the premises comprised therein, and to make
new demise or lease for the like estate or interest of the premises
so surrendered, or any part thereof, so that every demise or lease
to be made in the exercise of this power shall take effect in
possession and not in reversion or remainder, and so that there
shall be reserved on every such demise or lease the best and most
improved yearly rent or rents which can be reasonably had or
gotten for the same, to be incident to the immediate reversion of
the said hereditaments and premises, without taking any fine,
premium, or foregift, or any thing in the nature thereof for the
same, beyond the improvements to be made by any lessee or lessees,
and so as every lessee other than for one year or from year to year
only do covenant for the due payment of the rent or rents thereby
reserved in such demise or lease, and so as there shall be in every
such demise or lease a clause in the nature of a condition of re-
entry for non-payment of the rent or rents thereby reserved with-
in twenty-one days next after the same shall become due, or for
breach or non-performance of any of the covenants therein
contained on the part of the lessee or lessees, his, her, or their heirs,
executors, or administrators, and so as no clause be contained
therein giving power to the lessee or lessees to commit waste, or
exempting him or them from punishment for committing waste,
except the powers and liberties to be inserted in such building or
repairing demises or leases as aforesaid which it shall be considered
necessary or expedient to be granted, and so that the respective
lessees execute counterparts of their respective demises or leases, of
the execution of which counterparts respectively a memorandum
endorsed on the said demises or leases respectively, and signed by
the persons or person for the time being exercising this power,
shall be conclusive evidence as against all persons whomsoever
claiming under these presents in opposition to any such demises or
leases. Provided also, that the plans and specifications of all
buildings to be erected under every such building or repairing
lease shall, before such lease is executed, be approved by the
Trustees or Trustee for the time being of these presents, and by
the said Roman Catholic Bishop or his successor for the time being
as aforesaid :

Provided always, and it is hereby agreed and declared, that no But no ob-
erection, alteration, rebuilding, or repair shall be made, or act structions or

done, or any trade, business, process, or manufacture carried on or annoyance to

be allowed.

242 APPENDIX 0.

used in or upon any or any part of the premises which may be
demised or leased in manner aforesaid, whether for one year or
from year to year, or for any number of years not exceeding
twenty-one years, or not exceeding ninety-nine years, respectively
as aforesaid, so as to make, create, occasion, or be a nuisance,
trouble, annoyance, hindrance, or obstruction to the execution and
carrying on of the object and purposes of the trusts of these
presents or any of them in the fullest, most convenient, and
effectual manner ; and that every lessee other than for one year,
or from year to year only, shall covenant against the same :
Powers of sale Provided nevertheless, that unless and until any money which
and leasing shall or may have been advanced out of such Parliamentary Grant
not to be ex- ag aforesajci shall, with the consent of the Secretary of State for
out1 consent ^f tne Home Department, have been repaid to the Lords Commis-
Home Secre- sioners of the Treasury for the time being, no sale, disposition, or
tary in writ- lease of the said hereditaments and premises, or of any part or
parts thereof, nor any application of the pro luce of any sale of the
same or any part or parts thereof shall be made without the consent
in writing of the Secretary of State aforesaid first had and obtained :
Kcceipts of And it is hereby declared, that the receipt and receipts of the
trustees to be Trustees or Trustee for the time being of these presents shall, in
all cases of payment made to them of any purchase or other money
or moneys as such Trustees or Trustee as aforesaid, be a full
discharge to the person or persons entitled to such receipt or
receipts, his, her, and their heirs, executors, administrators, and
assigns, for all moneys therein respectively expressed and acknow-
ledged to have been received by such Trustees or Trustee as
aforesaid ; and in all cases, except for money paid and received in
respect of any sale of the said hereditaments and premises, or any
part or parts thereof as aforesaid, the receipt and receipts of any
one or more of the Trustees for the time being of these presents
shall be a full discharge to the person or persons entitled to such
receipt or receipts, his, her and their heirs, executors, adminis-
trators, and assigns, for all moneys, except as aforesaid, therein
respectively expressed and acknowledged to have been received :
Purchasers And it is hereby declared, that it shall not be incumbent upon
not bound to anv purchaser or purchasers of the said hereditaments and
ilropriet™? premises, or of any part or parts thereof respectively, to inquire
bale, or appli- into the necessity, expediency, or propriety of any sale or dis-
cationofpro- position of the same hereditaments and premises, or any part or
ceeds. parts thereof, made or proposed to be made by the said Trustees or

Trustee for the time being as aforesaid; nor shall any such
purchaser or purchasers, or any of them, or any other person or
persons, his, her, or their heirs, executors, administrators, or
assigns paying money to such Trustees or Trustee as aforesaid, be
bound to see to the application, or be answerable or accountable
for the loss, misapplication, or non-application, of such purchase
or other money, or any part thereof, for which a receipt or
receipts shall be respectively given as aforesaid.

APPENDIX 0. 243

Provided always, and it is hereby agreed and declared, that the Indemnity
Trustees or Trustee for the time being of these presents shall not and reim-
be answerable or accountable the one for the others or other of
them, or for signing receipts for the sake of conformity, or by or
for any involuntary loss, damage, or injury in the premises ; and
also that it shall be lawful to and for the Trustees or Trustee for
the time being of these presents, out of the moneys which shall
come to their respective hands bj» virtue of these presents, to deduct
and retain and reimburse themselves and himself respectively, all
costs, charges, and expenses to be sustained or expended in or
about the execution of the trusts hereby created or declared, or
in anywise relating thereto, to be computed as between solicitor
and client.

Provided always, and it is hereby declared, that from time to Power to ap-
time and at all times hereafter, when and so often as the Trustees point new
for the time being of these presents shall by death, incapacity, or trustees'
refusal to act in the trusts of these presents, or otherwise, be
reduced below the number of three Trustees, then and in every
such case the said Roman Catholic Bishop, or his successor for the
time being, shall, at a meeting of the Trustees to be duly convened
for that purpose in manner aforesaid,* nominate as many persons,
being members of the Koman Catholic Church in the district or
other ecclesiastical division in which the said hereditaments and
premises happen for the time being to be situated, if a sufficient
number of such persons can be then found willing to take upon
themselves the burden and execution of the trusts hereby declared,
and if not, then being members of the said Church in that and some
neighbouring or other district or districts, division or divisions, as
shall make up in the whole twice the number of Trustees to be
appointed ; and the old Trustees for the time being, or the major
part of those present at such meeting, shall choose, elect, and
appoint from amongst the persons nominated as aforesaid so many
persons to be Trustees of the trust premises as shall, together with
the surviving and continuing Trustees, if any, make up the ori-
ginal number of Trustees; and the hereditaments and premises
for the time being subject to the trusts of these presents, and
every part thereof, with the appurtenances, shall thereupon forth-
with be legally and effectually conveyed and assured to and
vested in such new and such surviving and continuing Trustees
jointly, or in such new Trustees only, as the case may be, upon
such and the same trusts, and to and for such and the same ends,
intents, and purposes, and with, under, and subject to such and the
same powers, provisoes, declarations, and agreements as are in and
by these presents expressed, declared, contained, or referred to, or
such of them as shall be then subsisting and capable of taking
effect, and to and for no other use, trust, end, intent, or purpose
whatsoever.

* This power of appointment does not provide for the case when all the
trustees are dead.

R 2

244 APPENDIX 0.

Indemnity to Provided always that no purchaser or purchasers, lessee or

purchasers lessees, or other person or persons whomsover, shall be bound to

feet?18* ^ i^ui16 i11*0 or ascertain the due nomination or appointment of

ptintment'of any Person or persons as a Trustee or Trustees under this present

trustees. power, nor be effected by express notice that he or they was or

were not duly nominated and appointed a Trustee or Trustees, if

the hereditaments and premises which for the time being remain

subject to the trust of these presents shall have been or be

actually transferred to or vested in such person or persons as such

Trustee or Trustees.

Covenant that And each of the said parties hereto of the first part, for himself,
grantors have his heirs, executors, and administrators, doth hereby covenant,
not mcum- promise, and agree to and with the said several persons parties
hereto of the second part, their heirs, executors, administrators, and
assigns, that they the said parties hereto of the first part respec-
tively, have not, nor have nor hath at any time heretofore, made,
done, omitted, committed, executed, or knowingly or willingly
permitted or suffered any act, deed, matter, or thing whatsoever
whereby, or by reason or means whereof, the hereditaments and
premises aforesaid, or any of them, or any part thereof, are, is,
can, shall, or may be impeached, charged, affected, or incumbered
in title, estate, or otherwise howsoever.

In witness whereof the said parties to these presents have
hereunto set their hands and seals the day and year first above
written.

Enrolled in Her Majesty's High Court of Chancery")
the Nineteenth day of June in the year of our /
Lord One thousand eight hundred and fifty-two V
(being first duly stamped), according to the I
tenour of the Statute made for that purpose.

DEED OF KEFEKENCE.*

The following deed of reference incorporating the trusts of the
Kemerton Deed was sanctioned for use in subsequent cases of
schools applying to the Privy Council for building grants.

THIS INDENTURE, made the day of in the year of our

Lord 185 between t of in the county of

of the first part J of the second part and the

* Reprinted from a printed form supplied by the Poor School Committee.
See also their Report for 1852, p. 60.

The vendor. t The trustees.

APPENDIX 0. 245

Right Reverend of in the county of

D.D. Roman Catholic Bishop of the third part
WHEREAS *

AND WHEREAS the several persons parties hereto of the second
part have collected divers sums of money to be laid out in the
purchase of land and hereditaments at or near aforesaid

and in building thereon a Roman Catholic Poor School and School-
house with such offices as may be necessary to be used therewith
to. be settled to the use and upon the Trusts hereinafter mentioned
or referred to and they have accordingly agreed with the said f
for the absolute purchase of the land and hereditaments
hereinafter described and hereby granted and released with the
appurtenances free from all incumbrances at the price of £
AND WHEREAS in furtherance of the objects aforesaid the parties
hereto of the second part have applied to the Lords of the
Committee of Council on Education for aid out of the Parlia-
mentary Grant for Education and have received the promise of a
certain sum of money to be paid upon the fulfilment of the usual
conditions AND WHEREAS the trusts and provisions required by the
said Committee of Council to be inserted in Deeds of Trust relating
to Roman Catholic Poor Schools are fully set forth in an Indenture
dated the 24th day of May 1852 and made between the Reverend
William Scott and Ferdinand Eyston and Compton John Hanford
Esquires of the first part the Right Reverend Thomas Burgess of
Clifton Roman Catholic Bishop of the second part and Charles
Edward Hanford Charles Porter Charles Tidmarsh Richard Tidmarsh
George Eyston and John Surrnan Esquires of the third part being a
Declaration of Trust of certain land and hereditaments thereby
appropriated for the purpose of a Roman Catholic School at
Kernerton in the county of Gloucester and which Indenture was
prepared with the sanction of the said Committee of Council
on Education and was enrolled in Her Majesty's High Court of
Chancery on the 19th day of June 1852 AND WHEREAS to obviate
the expense of repeating in detail the several trusts and provisions
aforesaid it is proposed and intended by the general reference
hereinafter contained to the said Indenture of the 24th day of
May 1852 to extend and make applicable the like trusts and
provisions to the hereditaments and premises herein described and
conveyed as fully and effectually to all intents and purposes
whatsoever as though the same were repeated herein and the said
Committee of Council on Education have sanctioned the present
form of deed Now THIS INDENTURE WITNESSETH that in pursuance
of the said agreement for purchase and in consideration of the
sum of £ of lawful English money by the said parties

hereto of the second part to the said J paid out of the

monies collected as aforesaid the receipt whereof the said

* Recite briefly the Vendor's title. f Vendor. % Ibid.

246 APPENDIX 0.

doth hereby acknowledge he the said * with

the approbation of the saidf as such Eoman Catholic

Bishop as aforesaid testified by his being a party to and sealing
and delivering these presents doth grant bargain sell release and
confirm unto the said parties hereto of the second part their heirs
and assigns all that piece of land situate and being at
in the parish of in the county of containing

in depth J

and which said land and hereditaments are delineated in the plan
thereof drawn in the margin of these presents together with all
lights easements and appurtenances whatsoever to the said
premises belonging or in anywise appertaining and all the estate
and interest whatsoever both at law and in equity of him the
said § therein and thereto To HAVE AND TO HOLD all and

singular the said hereditaments and premises with their and every
of their appurtenances unto and to the use of the said parties
hereto of the second part their heirs and assigns for ever never-
theless UPON TRUST that they the said parties hereto of the second
part and the survivors and survivor of them and the heirs and
assigns of such survivor and the trustees and trustee for the time
being acting in the trusts of these presents shall and do out of the
monies now or hereafter possessed by them or him for that
purpose and as soon as conveniently may be erect build and finish
upon the land or ground hereby granted and conveyed and from
time to time hereafter when necessary repair enlarge or rebuild a
School-house with a residence for a schoolmaster or schoolmistress
or both and such other offices as the Trustees or Trustee for the
time being of these presents with the consent and concurrence of
the paid Roman Catholic Bishop or his successors shall from time
to time deem necessary or expedient And after the completion of
the said school-house and residence with the appurtenances to
permit and suffer such part of the same premises as shall be
designed for that purpose to be used as a residence for the school-
master or schoolmistress or both and to permit and suffer such
school-house with the appurtenances to be used as and for a
Eoman Catholic week-day School or Schools for the religious and
secular Education of children and young persons and in such
special cases in which it may be thought expedient of adult
persons of both sexes in the usual branches of knowledge
according to and in conformity with the principles of the Roman
Catholic Church and for no other purpose whatsoever AND IT is
HEREBY COVENANTED DECLARED AND AGREED by and between the said
parties hereto of the second part with the approbation of the said
Bishop testified as aforesaid that the said hereditaments and
premises hereby conveyed shall be taken and held by them the
said parties hereto of the second part and the survivors and

* Vendor. f Ibid.

I Here describe with accuracy and sufficient minuteness the hereditaments
intended to be conveyed. § Vendor

APPENDIX 0. 247

survivor of them and the heirs of such survivor their or his assigns
and the trustee or trustees for the time being acting in the trusts
of these presents for the purpose aforesaid upon similar trusts
and with under and subject to similar powers provisoes agreements
and declarations in all respects as regards the maintenance and
management of the said intended School School-house * and offices
at aforesaid and the inspection of the said School by

the Government Inspector to those expressed declared and
contained in and by the said recited and enrolled Indenture of the
24th day of May 1852 in relation to the said Eoman Catholic Poor
School and premises at Kemerton aforesaid save only that the
powers authorities and discretions in and by such last-mentioned
Indenture vested in or reserved to and made exerciseable by
the Eoman Catholic Bishop party thereto and his successor
for the time being over or with respect to the premises
therein comprised shall for all the purposes of these presents be
considered as vested in and be exercised and exerciseable by the
said Koman Catholic Bishop party hereto and his successor for the
time being and in like manner the several duties by the said
Indenture of the 24th day of May 1852 appointed to be performed
by and the powers thereby reserved to the Priest or Priests
therein named or referred to shall for all the purposes of these
presents be considered as vested in and be performed by the Priest
or Priests officiating at the Eoman Catholic Church at f
aforesaid under or by virtue of faculties duly received from or con-
firmed by the said Eoman Catholic Bishop party hereto or his
successor for the time being and save also and it is hereby declared
and agreed that the first Committee of Management of the said
School and premises at aforesaid shall consist as to its

lay members of the several persons following (that is to say) J

AND THE SAID§ DOTH HEREBY FOR HIMSELF HIS HEIRS

EXECUTORS AND ADMINISTRATORS COVENANT AND DECLARE with and to

the said parties hereto of the second part their heirs and assigns
that notwithstanding any act or default of him the said
covenantor or any person under or through whom he claims or
derives title he hath now in himself good right to grant convey
and assure the said hereditaments and premises hereby granted
and conveyed or otherwise assured in manner aforesaid and
according to the true intent and meaning of these presents and
that the same hereditaments and premises shall and may be
entered upon and at all times hereafter be held and enjoyed by
the said purchasers their heirs and assigns in manner aforesaid
without any eviction interruption or disturbance from or by
and free and clear of and from all incumbrances whatsoever

* This does not apparently include the power of sale, for which it may be
necessary to obtain the sanction of the Court.

t Or " Chapel," as the case may be. 1 Insert names of committee.

§ Vendor.

248 APPENDIX 0.

created or made by him the said covenantor or any person
lawfully claiming or deriving title from through under or in trust
for him and that he the said covenantor and his heirs and all and
every persons and person claiming or deriving title from through
under or in trust for him or them shall and will upon every
request and at the expense of the said parties hereto of the second
part make and perfect all such further assurances in the law as
may be required by the said last-mentioned persons or the
survivors or survivor of them or the heirs of such survivor his or
their assigns for further and better conveying and assuring the
said hereditaments and premises and every part thereof to the
uses and upon and for the trusts intents and purposes and in
manner aforesaid and also that the said covenantor his heirs and
assigns shall and will from time to time when thereunto required
by and at the expense in all things of them the said parties
hereto of the second part or any or either of them or their or his
assigns produce and show forth unto them or him or their or his
nominee or nominees at any place within the limits of Great
Britain all or any of the several deeds and muniments of title
enumerated in the Schedule hereunder written and allow copies
and extracts to be made and taken of and therefrom respectively.
In witness, &c.

The SCHEDULE above referred to

Taken and acknowledged by of the

parties to this Deed this day of

at
before me a Master extraordinary in Chancery

( 249 )

APPENDIX P.*

ELEMENTARY EDUCATION ACT, 1891.
[54 & 55 VICT. OH. 56.]

ARRANGEMENT OP SECTIONS.
Section.

1. Fee grant and conditions thereof.

2. Limit of fees in schools receiving fee grant.

3. Prohibition of charges in certain schools receiving fee grant.

4. Power to modify limit of fees in certain cases.

5. Provision for free school accommodation.

6. Power to contribute from fee grant to common school fund.

7. Grouping of schools.

8. Explanation of 33 & 34 Viet. c. 75, s. 17.

9. Provision for equality of treatment.

10. Meaning of " school year" and " average attendance."

11. Repeal.

12. Commencement of Act.

13. Short title and construction.
SCHEDULE.

An Act to make further provision for assisting Education in Public
Elementary Schools in England and Wales.

[5th August, 1891.]

BE it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the
authority of the same, as follows :

1. — (1.) After the commencement of this Act, there shall be Fee grant and
paid, out of moneys provided by Parliament, and at such times conditions
and in such manner as may be determined by regulations of the
Education Department, a grant (in this Act called a fee grant) in
aid of the cost of elementary education in England and Wales at
the rate of ten shillings a year for each child of the number of
children over three and under fifteen years of age in average
attendance at any public elementary school in England and Wales
(not being an evening school) the managers of which are willing
to receive the same, and in which the Education Department are

* See above, p. 119.

250 APPENDIX P.

satisfied that the regulations as to fees are in accordance with the
conditions in this Act.

(2.) If in any case there is a failure to comply with any of the
conditions in this Act, and the Education Department are satisfied
that there was a reasonable excuse for the failure, the Depart-
ment may pay the fee grant, but in that case shall, if the amount
received from fees has exceeded the amount allowed by this Act,
make a deduction from the fee grant equal to that excess.

(3.) For the purposes of section nineteen of the Elementary
Education Act, 1876, the fee grant paid or payable to a school
shall be reckoned as school pence to be met by the grant payable
by the Education Department.

Limit of fees 2. — (1.) In any school receiving the fee grant —
in schools re-'

ceiving fee (a.) Where the average rate of fees received during the school

year ended last before the first day of January one thousand
eight hundred and ninet}*-one was not in excess of ten shillings
a year for each child of the number of children in average
attendance at the school ; or

(&.) For which an annual parliamentary grant has not fallen due
before the said first day of January ;

no fee shall, except as by this Act provided, be charged for children
over three and under fifteen years of age.

(2.) In any school receiving the fee grant where the said aver-
age rate was so in excess, the fees to be charged for children over
three and under fifteen years of age shall not, except as by this
Act provided, be such as to make the average rate of fees for all
such children exceed for any school year the amount of the said
excess.

Prohibition of 3. In any school receiving the fee grant where the average rate
charges in cer- charged and received in respect of fees and books, and for other
tam schools purposes, during the school year ended last before the first day of
January one thousand eight hundred and ninety-one, was not in
excess of ten shillings a year for each child of the number of
children in average attendance at the school, no charge of any
kind shall be made for any child over three and under fifteen years
of age.

Power to 4. — (1.) Notwithstanding anything herein-before contained, the

modify limit Education Department, if they are satisfied that sufficient public
s m cer- Sch00i accommodation, without payment of fees, has been provided
for a school district, and that the charge of school fees or the
increase of school fees for children over three and under fifteen
years of age in any particular school receiving the fee grant is re-
quired owing to a change of population in the district, or will bo
for the educational benefit of the district, or any part of the dis-
trict, may from time to time approve such charge or increase of
fees in that school, provided that the ordinary fee for such children
shall not exceed sixpence a week.

APPENDIX P. 251

(2.) The Education Department shall report annually to Parlia-
ment all cases in which they have sanctioned or refused the
imposition or augmentation of fees under this section, with a state-
ment of the amount of fee permitted.

(3.) The Education Department may, if they think fit, make it
an express condition of such approval that the amount received
for any school year from the fees so charged or increased, or a
specified portion of that amount, shall be taken in reduction of
the fee grant which would otherwise have been payable for that
school year, and in that case the fee grant shall be reduced ac-
cordingly.

5. If at any time after the expiration of one year from the Provision for
commencement of this Act it is represented to the Education free st-lm ,1
Department that there is in. any school district, or any part of a j^111
school district, an insufficient amount of public school accommoda-
tion without payment of fees for children over three and under

fifteen years of age, for whom such accommodation is desired, and
the Education Department are satisfied after inquiry that such is
the case, the Department shall direct the deficiency to be supplied
in the manner provided by sections nine and ten of the Elementary
Education Act, 1870, and every other section enabling them in
that behalf, with respect to the supply of public school accommo-
dation ; and the expression " public school accommodation " in that
Act shall include public school accommodation without payment of
fees.

Provided that whenever and so long as any deficiency in such
last-mentioned public school accommodation in any district is in
course of being supplied with due despatch, no requisition or
order shall be issued in that behalf by the Education Department.

6. The managers of two or more public elementary schools in Power to con-
the same or neighbouring school districts, not being schools tribute from

provided by a school board, may pay the fee errant, or part fee grant to
f-i r. -IT. i i • ± A_ i j» a • common

thereof, received by each school into a common fund tor dis- Sch00i fun,j

tribution, as may be arranged by them, between or among such
schools.

Provided that the fee grant received by each school in the first
instance shall alone count as income of such school for the
purposes of this Act and of section nineteen of the Elementary
Education Act, 1876, and a contribution to a school from any such
common fund shall not be reckoned as income of such school from
other sources within the said section nineteen.

7. Where the managers of two or more public elementary Grouping of
schools in the same or neighbouring school districts agree to schools,
associate and elect a committee for the schools, any surplus income

on the accounts for the school year of any of the associated schools
may be paid into a common fund, out of which contributions may
be made to any of the other associated schools ; but the contribu-
tions received by any such school shall not be counted as income
from other sources for the purpose of section nineteen of the

252

APPENDIX P.

Explanation
of 33 & 34
Viet. c. 75, s.
17.

Provision for
equality of
treatment.

Meaning of
« school
year " and
" average
attendance."

Repeal.

Commence-
ment of Act.

Short title and
construction.

Elementary Education Act, 1876, so that no addition to the public
charge may result from this section taken in conjunction with the
said section nineteen. Provided that no board school shall under
this section be associated with any public elementary school other
than a board school.

8. Nothing in section seventeen of the Elementary Education
Act, 1870, shall prevent a school board from admitting scholars to
any school provided by the board without requiring any fee.

9. Nothing in this Act shall give any preference or advantage to
any school on the ground that it is or is not provided by a school
board.

10. In this Act the expression " school year " shall mean a year
or other period for which an annual parliamentary grant is for the
time being paid or payable under the minutes of the Education
Department ; and the expression " average attendance " shall, for
the purposes of the fee grant, mean average attendance calculated
in accordance with the minutes in force at the commencement of
this Act.

11. The Acts mentioned in the schedule to this Act are hereby
repealed to the extent mentioned in the third column of that
schedule.

12. This Act shall come into operation on the first day of
September one thousand eight hundred and ninety-one.

13. — (1.) This Act may be cited as the Elementary Education
Act, 1891, and shall be construed as one with the Elementary
Education Acts, 1870 to 1890.

(2.) The Elementary Education Acts, 1870 to 1890, and this Act,
may be cited collectively as the Elementary Education Acts, 1870
to 1891.

SCHEDULE.
ENACTMENTS REPEALED.

Session and Chapter.

Short Title.

Extent of Repeal.

33 & 34 Viet. c. 75. .
39 & 40 Viet. c. 79. .

The Elementary Education
Act, 1870.

The Elementary Education
Act, 1876.

Section twenty-six.
Section eighteen.

( 253 )

APPENDIX Q.*

2 & 3 WILL. 4, c. 115.

An Act for the better securing the Charitable Donations and Bequests of
His Majesty's Subjects in Great Britain prof essing the Roman Catholic
Religion. * [15th August 1832.]

WHEREAS by an Act passed in the first year of the reign of King
William and Queen Mary, intituled An Act for exempting His 1 W. & M.
Majesty's Protestant Subjects dissenting from the Church of England c. 18.
from the Penalties of certain Laws, and by certain subsequent
statutes, the schools and places for religious worship, education,
and charitable purposes of Protestant Dissenters are exempted
from the operation of certain penal and disabling laws to which
they were subject previously to the passing of the said recited Act
of the first year of the reign of King William and Queen Mary :
And whereas by certain Acts of the Parliament of Scotland, and
particularly by an Act passed in the year One thousand seven 1700, c. 3.
hundred, intituled An Act for preventing the Growth of Popery,
various penalties and disabilities were imposed upon persons pro-
fessing the Roman Catholic religion in Scotland : And whereas,
notwithstanding the provisions of various Acts passed for the
relief of His Majesty's Koman Catholic subjects from disabling
laws, doubts have been entertained whether it be lawful for His
Majesty's subjects professing the Roman Catholic religion, in
Scotland to acquire and hold in real estate the property necessary
for religious worship, education, and charitable purposes : And
whereas it is expedient to remove all doubts respecting the right
of His Majesty's subjects professing the Eoman Catholic religion
in England and Wales to acquire and hold property necessary for
religious worship, education, and charitable purposes : Be it
therefore enacted by the King's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
Authority of the same, That, from and after the passing of this Koman Ca-
Act His Majesty's subjects professing the Koman Catholic religion, Colics to be
in respect to their schools, places for religious worship, education, gamelaws
and charitable purposes, in Great Britain and the property held Protestant
therewith, and the persons employed in or about the same, shall Dissenters,
in respect thereof be subject to the same laws as the Protestant witb- respect
Dissenters are subject to in England in respect to their schools and ^^^ an
places for religious worship, education, and charitable purposes, worship,
and not further or otherwise.

* See above, p. 133.

254 APPENDIX Q.

Roman Ca- II. Provided always, and be it further enacted, That in all cases
tholic school- in which schoolmasters or other persons employed in such schools
masters when or other places are, as a legal qualification for such employments,
takcToath to now required by law to take the Oath of Supremacy, or the Oath
take that'pre- or Declaration against Transubstantiation and the Invocation of
scribed by Saints and Sacrifice of the Mass, or to receive the Sacrament of our
10 G. 4, c. 7. Lord's Supper, or, in Scotland, to subscribe the formula annexed to
the aforesaid Act for preventing the growth of popery, any such
schoolmaster or other master, professing himself a Roman Catholic,
shall in lieu of the qualification aforesaid for holding such employ-
ment, take the oath contained in the statute passed in the tenth
year of His late Majesty, intituled An Act for the Relief of His
Majesty's Roman Catholic Subjects, and at the times and in manner
in that Act mentioned.

Act not to HI. Provided always, and be it further enacted, That nothing

itiect pending jn ^g ^c^ contained shall affect any suit actually pending or

commenced, or any property now in litigation, discussion, or

dispute, in any of His Majesty's courts of law or equity in Great

Britain.

Nor to repeal jy. Provided always, and be it further enacted, That nothing in

lO0^18*01? 71 *kis ^ct contained snall t>e taken to repeal or in any way alter any

for suppres-' provision of an Act passed in the tenth, year of the reign of His

sion of certain late Majesty King George the Fourth, intituled An Act for the

religious Relief of His Majesty 's Roman Catholic Subjects, respecting the

suppression or prohibition of the religious orders or societies of

the Church of Rome bound by monastic or religious vows.

Property held y. Provided always, and be it further enacted, That all property
for the pur- ^0 ^ acquired or held for such purposes of religious worship,
tioiicd^n^this e(lucation, and charitable purposes, in England and Wales, shall
Act, in be subject to the provisions of an Act passed in the ninth year of

England and the reign of King George the Second intituled An Act to restrain the
Wales, to be Disposition of Lands whereby the same may become unalienable, and to
abject to the t^ j ^ protestant Dissenters are subject to in England

provisions 01 . „ , , . . ITT ri T-> • -I i

t) G, 2 c. 36. m respect of the acquiring or holding ot such property : Provided
always, that nothing in this Act contained shall be taken to extend
the provisions of the said last-recited Act to that part of Great
Britain called Scotland.

( 255 )

APPENDIX R*

24T&25 VICT.C. 134.

An Act to amend the Law regarding Roman Catholic Charities.

[28th August, I860.]

WHEREAS it is expedient that the laws concerning charities re-
lating to or connected with the Roman Catholic religion in
England or Wales should be amended in the particulars herein-after
provided for : Be it enacted by the Queen's most excellent Majesty,
by and with the Advice and Consent of the Lords Spiritual and
Temporal, and the Commons in this present Parliament assembled,
and by the Authority of the same, as follows :

1. No existing or future gift or disposition of real or personal Charities for
estate upon any lawful charitable trust for the exclusive benefit lawful pur-
of persons professing the Eoman Catholic religion shall be beTnvali- °
invalidated by reason only that the same estate has been or shall dated by the
be also subjected to any trust or provision deemed to be supersti- addition of
tious, or otherwise prohibited by the laws affecting persons unlawful
professing the same religion, but in every such case it shall be property may
lawful for the High Court of Chancery, or any Judge thereof be appor-
sitting at Chambers, in exercise of the jurisdiction created by the tioned, and
Charitable Trusts Act, 1853, upon the application of Her Majesty's the whole
Attorney- General, or of any person authorized for this purpose by applied to
the certificate of the Board of Charity Commissioners for England p^es* *
and Wales, or for the said Board upon the application of the
person or persons acting in the administration of such Real or
personal estate, or of a majority of such persons, to apportion the
same estate, or the annual income or benefit thereof, so that a
proportion thereof, to be fixed by such Court or Judge, or by the
said Board, as the case may require, may be exclusively subject to
the lawful charitable trusts declared by the donor or settlor, and
that the residue thereof may become subject to such lawful
charitable trusts for the benefit of persons professing the Roman
Catholic religion, to take effect in lieu of such superstitious or
prohibited trusts as the said Court or Judge, or the said Board may
consider under the circumstances to be most just ; and also that it
shall be lawful for the Court or Judge, or Board, making any such
apportionment by the same or any other order or orders to
establish any scheme for giving effect thereto, and to appoint

* See above, p. 147.

256

APPENDIX It.

No proceed-
ings to be in-
stituted as to

trustees for the administration of the several portions of such
real and personal estate, according to the trusts established of
the same proportions respectively, and to vest the estate to be so
apportioned in the trustees so to be appointed.

II. No proceedings at law or in equity shall be brought or
instituted on account or in respect of any dealings, transactions,

dealin s with ma'tters' or things with or concerning any real or personal estate

° ^. cm V\ior»-f -ff» Q-nTT TICJO -fvnQ-f rri-pf -frvn-nrl a+ir\-n r\v A^o-r\f\o^+^f\-r\ -P,~vn O-^TT

subject to any use, trust, gift, foundation, or disposition for any
charity relating to or connected with the Roman Catholic religion
which took place prior to the passing of the Act of the second and
third years of the reign of King William the Fourth, Chapter
One hundred and fifteen : Provided that nothing herein contained
shall extend to sanction or exempt from such proceedings as
aforesaid the fraudulent misapplication or conversion of any such
real or personal estate to any private use or purpose not being
charitable.

III. No deed or other assurance for and charity relating to or
connected with the Roman Catholic religion made subsequently
to the passing of the Act passed in the ninth year of the reign of
King George the Second, intituled An Act to restrain the disposition
enrolled* with- of Lands whereby the same become inalienable, and before the passing

Roman Ca-
tholic chari-
ties prior to
2 & 3 W. 4,
c. 115.

Certain deeds
for Roman.
Catholic
charit es not
to be void if

in twelve
months from
passing of
Act.

9 G. 2. c. 36.

9 G. 4. c. 85.

of this Act, shall be void or voidable by reason of the same not
having been made, perfected, or enrolled in the manner directed
by the first-named Act, or otherwise, under the provisions of the
said Act, if such deed or assurance has been or shall be, within
twelve months after the passing of this Act, enrolled in the High
Court of Chancery : Provided that every deed or assurance for any
such charity as aforesaid coming within the provisions of the Act
passed in the ninth year of the reign of King George the Fourth,
intituled An Act for remedying a defect in the titles of lands purchased
for charitable purposes, shall have the benefit thereof notwithstand-
ing anything herein contained.

Expense of IV. The expense of the enrolment of any deed under the third
enrolment, section of this Act shall be defrayed out of the property subject to
defrayed ^e charity to which the same may relate.

V. Where any real or personal estate, subject to any use, trust,

charities in S^*» foundation, or disposition for any charity relating to or

the absence of connected with the Roman Catholic religion, shall have been

settlements applied upon any charitable trusts relating to or connected with

may be ascer- the same religion during any continuous period of twenty years,

but the original trusts of such property shall not be ascertained

by means of any written document, the consistent usage of the

last preceding twenty years, or of the last period of twenty years

during which any consistent usage in the application of such

property shall have prevailed, shall be deemed to afford conclusive

evidence of the trusts on which the same property shall have been

settled.

The Act not VI. Nothing in this Act contained shall extend to give effect to
to prejudice any use, trust, gift, foundation, or disposition heretofore made

APPENDIX It. 257

which has been already avoided in any proceeding at law or in past or pend-
equity, or to prejudice any suit at law or in equity commenced pg proceed-
before the passing of this Act, or to affect any property held or ings or ®
enjoyed beneficially by any person or persons at the time of the g^ *
passing of this Act adversely to any such use, trust, gift, founda-
tion, or disposition.

VII. Nothing in this Act contained shall be taken to repeal or Nothing in
in any way alter any provisions of an Act passed in the tenth year tnis Act to
of His late Majesty King George the Fourth, intituled An Act for ^^^'
the relief of His Majesty's Roman Catholic subjects, respecting the JQ Q. ^ c 7^
suppression or prohibition of the religious orders or societies of the

Church of Rome bound by monastic or religious vows.

VIII. In the construction of this Act, except where the context Interpretatio
or other provisions of this Act shall require a different construe- of " charity."
tion, the expression "charity " herein contained shall be construed

to mean and include the same matters and things as the like
expression means and includes in the " Charitable Trusts Act,
1853."

IX. This Act may for all purposes be cited as " The Roman Short title.
Catholic Charities Act."

X. This Act shall be confined in its operation to England and Extent of Act.
Wales.

( 258

APPENDIX S.*

Short title.

Extent of Act,

Definition of
" land."
51 & 52 Viet.
c. 42.

Meaning of
" assurance."

Land assured
by will for a
charitable
purpose to be
sold.

Land after
expiration of
time limited
for sale to be
sold by order
of charity
commission-
ers.

54 & 55 VICT. c. 73.

An Act to amend the Mortmain and Charitable Uses Act, 1888, and
the Law relating to Mortmain and Charitable Uses.

[5th August, 1891.]

BE it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the
authority of the same, as follows :

1. This Act may be cited as the Mortmain and Charitable Uses
Act, 1891.
, 2. This Act shall not extend to Scotland or Ireland.

3. "Land" in the Mortmain and Charitable Uses Act, 1888, and
in this Act, shall include tenements and hereditaments, corporeal
or incorporeal, of any tenure, but not money secured on land or
other personal estate arising from or connected with land ; and
the definition of land contained in the Mortmain and Charitable
Uses Act, 1888, is hereby repealed.

4. In this Act the word " assurance " shall have the same meaning
as in the Mortmain and Charitable Uses Act, 1888.

5. Land may be assured by will to or for the benefit of any
charitable use, but, except as herein-after provided, such land
shall, notwithstanding anything in the will contained to the
contrary, be sold within one year from the death of the testator,
or such extended period as may be determined by the High Court,
or any judge thereof sitting at chambers, or by the Charity
Commissioners.

6. So soon as the time limited for the sale of any lands under
any such assurance shall have expired without completion of the
sale of the land, the land unsold shall vest forthwith in the official
trustee of charity lands, and the Charity Commissioners shall take
all necessary steps for the sale or completion of the sale of such
land to be efiected with all reasonable speed by the administering
trustees for the time being thereof, and for this purpose the said
Commissioners may make any order under their seal directing
such trustees to proceed with the sale or completion of the sale of
the said land or removing such trustees and appointing others, and
may provide by any such order for the payment of the proceeds of

* See above, p. 153.

APPENDIX 8. 259

sale to the official trustees of charitable funds in trust for the
charity, and for the payment of the costs and expenses incurred
by the said administering trustees in or connected with such sale,
and every such order shall be enforceable by the same means and
be subject to the same provisions as are applicable under the
Charitable Trusts Act, 1853, and the Acts amending the same, 16 & 17 Viet,
respectively, to any orders of the said Commissioners made there- °- 137.
under.

7. Any personal estate by will directed to be laid out in the Personal
purchase of land to or for the benefit of any charitable uses shall, estate by will
except as herein-after provided, be held to or for the benefit of the directed to be
charitable uses as though there had been no such direction to lay land^otTo be
it out in the purchase of land. so laid out.

8. It shall be lawful for the High Court, or any judge thereof power to re-
sitting at chambers, or for the Charity Commissioners, if satisfied tain land in
that land assured by will to or for the benefit of any charitable certain cases.
use, or proposed to be purchased out of personal estate by will
directed to be laid out in the purchase of land, is required for

actual occupation for the purposes of the charity and not as an
investment, by order to sanction the retention or acquisition, as
the case may be, of such land.

9. This Act shall only apply to the will of a testator dying after Application of
the passing of this Act. Act.

10. Nothing in this Act contained shall limit or affect the Saving,
exemptions contained in Part Three of the Mortmain and Charitable

Uses Act, 1888, or apply to any land or personal estate to be laid
out in the purchase of land acquired under any assurance to which
such exemptions or any of them apply, or shall exclude or impair
any jurisdiction or authority which might otherwise be exercised
by a court or judge of competent jurisdiction or by the Charity
Commissioners.

( 261 )

INDEX

APPEALS to Home, when prohibited, 2

Attendances at public elementary schools, statutory provisions regarding,
121-129

BEQUESTS, see Trusts.

Boarding out of pauper children, 101

Burial Boards, position of Catholics in respect of, 58-82

Burial Laws Amendment Act, the, 62-64, 198-203

Burial of the dead, provisions of the law regarding specially affecting

Catholics, 57-64
Burial of paupers, 93

CATHOLIC Hierarchy, Letter of the, to the Royal Commission on the laws of

marriage, 191-195
Certified efficient schools, 109
Chancery Division, application to, regarding the custody and education of

children, 82-84
Chantries, Statute of, 140
Chaplains, Catholic,

in workhouses, 91-92

in lunatic asylums, 93

in prisons, 103, 228-229
" Charitable," history of the technical meaning attached by law to the word,

136

Charitable Trusts Acts, 160-167
Charities, Catholic, 138, 139, 253-257

Roman Catholic Charities Act, 1832 ..ib.

Roman Catholic Trusts Act, I860.. 147, 255-257
" Charity," legal meaning of the word, 137
Charity Commissioners, the, powers of, 154, 159-167

262 INDEX.

Churches, Catholic, registration of, 49-54, 184-190

Acts of Parliament facilitating the conveyance of land for sites of, 64,

204-209
Coal Mines Kegulation Act, 1887, provisions of, as to education of children,

129

Code, the Annual, issued by the Education Department, 106-111
Coleridge, Lord, L.C. J.,

his opinion on the eligibility of Catholics for the offices of Lord

Chancellor of England and Lord Lieutenant of Ireland, 37, 181-183
his opinion as to diplomatic relations with the Holy See, 36
Conscience clause, the,

in the Elementary Education Act, 1870.. 114
minutes relating to, 114
Creed Register, in workhouses, the, 89, 90
Crown, the, of this realm may not be inherited, possessed, or enjoyed by

Catholics, 34

Cruelty to Children, Act for the Prevention of, 73, 215-223
Custody of Children Act, the, 73, 226-227
Custody of Infants Act, the, 70, 214

DEAF and dumb pauper children, 100

Deserted Children, provisions of the law regarding, 73, 215-227

Devotion, instruments of Catholic, prohibited, 25

Diplomatic relations with the Holy See, the law concerning, 35, 180

Disabilities, Catholic, imposition of, 28, 31

partial removal of, 31-33, 169-179

existing, 34-48, 169-179, 181-183
Disturbing public worship, penalty for, 50

ECCLESIASTICS, Catholic, incapable of being members of the House of
Commons, 47

may not perform Catholic rites or wear their habits, save in Catholic

places of worship, 48
Education, Catholic, prohibited, 26, 27
Elementary Education Act of 1870,

object of the, 107

principle of the, 108

definition of " elementary school " in, 109

definition of" public elementary school" in, 110

conditions of obtaining the Parliamentary Grant laid down by, 111

provisions in regarding unnecessary schools, 111
Elementary Education Act of 1891 .. 119, 249-252

"Elementary school," definition of, in the Elementary Education Act of
1870, 109

INDEX. 263

Emancipation Act, the, 33, 169-179

Established Church, the, Catholic disabilities affecting, 43

FACTORY and Workshop Act, 1878, provisions of, as to education of children,

125-128
Father's authority, nature and extent of, 65-68

control by the Courts of, 68-74

after father's death, 74-80
Free Education, the Fee Grant, 119, 120

GRANTS, the Government in aid of voluntary education, 11 6-121

Guardians, appointment of, 81, 82

Guardianship of Infants Act, the, 69, 70, 84, 210-213

HABEAS CORPUS, remedy for recovering custody of children, 84-87

should not issue against person having already parted with child, 86

House of Commons, persons in Catholic Holy Orders not eligible as members
of, 47

ILLEGITIMATE children, 80, 81
Industrial schools,

what children may be sent to, 129

statutory provisions as to religion in, 130

maintenance of children in, 131

day, 133

Infants' Custody Act, 1873 ..70, 214
Inscriptions on tombstones of Catholics, 60-63
Inspection of the Education Department in Voluntary Schools, 113
Inspection in religious knowledge, conditions of, 115

JESUITS, see Keligious Communities of Men.

Juvenile offenders, provisions of the law regarding their commitment to and
status in reformatory schools, 103-105

Kemerton School Trust Deed, 107, 230-248

LIVINGS, disabilities of Catholics in respect of, 43-46

264 INDEX.

Lord Chancellor of England, alleged disqualification of Catholics for office of,

36-43, 181-183

Lord Chancellor of Ireland, office opened to Catholics in 1867 .. 37
Lord Lieutenant of Ireland, alleged Catholic disqualification for office of, 36
Lunatic asylums, Catholic chaplains in, 93

MANAGEES of Public Elementary Schools, 113

Marriages, Catholic, 54-57, 191-197

Mass, the, prohibition of, and penalties for saying and hearing, 25

Ministers of religion may visit and instruct paupers in workhouses, 90

remuneration of Catholic, to workhouses, 91-92

to lunatic asylums, 93

regulations regarding their admission to visit prisoners, 102, 103

remuneration of Catholic, to prisons, 103, 228, 229
Minors, how far allowed to choose for themselves, 67, 68

to remove or detain from lawful custody, if under fourteen, a mis-
demeanour, 87

Mortmain Acts, 150-154, 258-259
Mothers, rights of, with regard to guardianship, 81, 210

" NECESSITY " of school applying for Parliamentary Grant. Meaning of the
word " necessary," 111, 113

OKATORIANS, see Religious Communities of Men.

PAUPERS, Catholic, provisions of the law in favour of the religious liberty of

in workhouses, 88-101
Penal Laws against Catholics, 1-33

Penalties under Emancipation Act, provision affecting the recovery of, 48
Parents and Guardians, 65-87

Parliamentary Grant to public elementary schools, the conditions of, 111
Perpetuities, rule against, 135, 139

charities exempt, 136
Poor Law Act, 1887, 224-225
Poor School Committee, the Catholic, 106
Prsemunire, statutes of, 4

penalties of, 8

Prerogative, the Royal, under the Tudors, 6

Prevention of Cruelty and Better Protection of Children Act, the, 72, 215-223
Prisoners, the religious rights of,\how secured, 101-103

INDEX. 205

Public elementary schools, definition of, in the Elementary Education Act of

1870. .110
Pupil teachers, grants for, 117

RECUSANCY, the offence of, 20-25

Reformation, the English, special characteristic of, 2

Reformatory and Industrial Schools Act, 1891, certain provisions of, 132

Regent, alleged Catholic disqualification to fill office of, 37

Registration of Catholic places of worship, 49-54, 184-190

Religious communities of men,

disabilities imposed on, 46, 47, 145

trust and bequests for the benefit of, 45-17
Religious instructors in workhouses, 91, 92
Rites and ceremonies, Catholic, out of doors prohibited, 48
Roman Catholic Charities Act, 1832 .. 138, 253, 254
Roman Catholic Charities Act, I860.. 147, 255-257

Royal Commission on the Law of Marriage, Extract from the Report of the,
196-197

S.
SCHOOL attendance, compulsory, 122

bye-laws as to, 123

by factory or workshop children, 125

under Coal Mines Regulation Act, 129
School Boards founded, 107
School fees, payment of, for poor parents, 120

Free education, 119
Secret trusts, 149

Separation deeds, when enforced, 70
Sites for places of religions worship, provisions of the law for facilitating the

acquisition of, 204-209
" Superstitious uses,"

doctrine of, 140

cases as to, 141
Supremacy, the Royal,

assumption of, by Henry VIII., 3-15

abolished by 1 & 2 Philip and Mary, c. 8 .. 15

resumed by Elizabeth, 16

penal legislation in protection of, 18-20

TAXATION of charities, 154-159
Training colleges, grants to, 121
Transfer of pauper children from the workhouse schools to schools of their

own religion, 94-100
Treason, spiritual, the offence of, 18-20
Trusts and bequests, 135-167

266 INDEX.

UNIFORMITY, the Act of, 17

penal legislation in aid of, 20-31

WORKHOUSE, the,

general provisions of the law for securing religious liberty in, 88

creed register in, 89

minister of religion may visit paupers in, 90

inmates of, may attend their own place of worship, 90

religion of children in, 91

Catholic Religious Instructors in, 91

chapel in, may be used for Catholic services with consent of guardians,

burial of pauper dying in, 93
transfer of children from, 94-100
boarding out of children from, 101
deserted children in, 224

LONDON : PBINTKD BT WILLIAM CLOWES AND SONS, LIMITED, STAMFOUD STKKKT
A\D CHARING CBOSfl.

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