The New Irish Constitution: An Exposition and Some Arguments. Various

in its own way.

      It may thus enjoy immense power, especially if there be no true national system of primary education; it may well be doubted whether it possesses as much power in any other country as in Ireland. But like other voluntary religious associations the Catholic Church is not wholly withdrawn from the supervision and control of the Law Courts. A series of decisions of our highest courts with reference to Churches in Ireland and Scotland, and the colonies, have laid down certain principles equally applicable to the Roman Catholic Church and to all other religious bodies; in particular, these principles: that the State can exercise control over all religious bodies possessing property when it is proved to be contravening its rules to the injury of members. In the case of societies resting upon a consensual basis, Courts of Justice are bound when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to inquire into the laws or rules of the Society.93 Further the authority of a Church cannot be legally used for purposes inimical to the State or contrary to any statute. It may make rules for its own members; it cannot enforce them against others; they are invalid against them if contrary to the terms of any statute. It may, for example, declare that it will not regard a marriage with a deceased wife's sister as valid; it may refuse to recognise as members those who so marry. But such [pg 103] rules will not legally invalidate a union which a statute has legalised. Probably this has not always been fully borne in mind by those who have denounced the promulgation of the decree Ne temere in Ireland. Resolutions have been passed against it here and in Ireland. Many Nonconformist bodies have protested against the promulgation of the decree in British Dominions. The decree is, I think, objectionable for several reasons, and not least because it discourages mixed marriages, an effect which seems to me deplorable, for nothing is better calculated to put an end to uncharitableness and hatred than the frequency of such unions. But while such a decree may do harm, it will have no direct effect except as between the members of the Catholic Church in foro conscientiæ. The Irish marriage law, which with a few exceptions is the same as the English, is binding on all Catholics and Protestants. Lord Llandaff who speaks at once as a lawyer and as a Catholic, puts this point clearly:

      “The invalidity was that of the sacramental and not of the legal marriage, and what the Church said to one of her subjects in such circumstances was: ‘You are married; you are a husband; but you may not receive the sacrament, and therefore you are in a state of sin, and in that sense your marriage in void, according to your conscience, though not according to the law.’ ”94

      A movement of retrogression the promulgation of the decree may have been; but every religious body must be free to lay down rules as to its membership. To quote the letter of the Archbishop of Canterbury of November 8th, 1911, on this subject: “Any branch of the Church of Christ must clearly have the power [pg 104] of defining the conditions of membership.”95 It is but fair to remember that the decree Ne temere is part of a settled policy. The Church of Rome has often shown its disapproval of mixed marriages which Benedict XIV. declared “abominable.”96 It is but fair also to take note of the plea that this decree is the latest attempt to secure uniformity in regard to marriage law; attempts which have been pursued since the Tametsi decrees of the Council of Trent. Before the reform in the marriage law then effected there was much confusion and looseness. All that was required for a valid marriage was that the contracting parties should express to each other their mutual consent by words de præsenti; a state of things which favoured fraud and led to uncertainty. The Tridentine change must appear to most lawyers to have been a great reform; marriage was to be solemnised in the presence of the parish priest of one of the parties and of two witnesses. But this ecclesiastical law is not even now in force in several countries. It was promulgated in most Catholic countries; it was never promulgated in purely Protestant countries, or in all countries with a mixed population. It applied to marriages between two Catholics but not necessarily to mixed or to Protestant marriages. It might be in force in one part of a country and not in another. Thus the Tametsi decree was in force in the [pg 105] greater part of the province of Armagh since the time of Elizabeth. Not until 1827 was it promulgated in the province of Dublin. Now we are told that it was to secure still further uniformity that the decree Ne temere was published. It requires all persons baptized in the Catholic Church, and those who have been converted to it from heresy or schism, to marry in the presence of the parish priest or ordinary of the place in which the marriage is to be celebrated, otherwise the Church will regard it as null. If neither of the contracting parties is a Catholic the Church recognises the marriage as valid wherever it is celebrated.97 How far other motives may have operated I cannot say; it is only fair to bear in mind that the decree is defended as a fresh effort to introduce certainty and definiteness as to a fundamental institution.

      I may here refer to the fears expressed as to the effects of the decree, Motu Proprio, Quantavis Diligentia of October 9th, 1911; a decree which, it is said, might conceivably place every sincere Roman Catholic in antagonism with his duties to the State. The principle of that decree seems to me highly objectionable; it is an impossible attempt to revive the past; a form of the greatest of all heresies, disbelief in spiritual forces unsupported by privilege. But here, too, it is well to understand the case made by defenders of that decree, and before deploring its effects in Ireland to be certain that, in the view of the Catholic Church, it is in force there. When the Church was all powerful, there existed a privilegium fori according to which no layman could bring a cleric before a lay tribunal; a privilege based upon the words of St. Paul to the [pg 106] Corinthians who resorted to the Pagan Courts. By various Concordats the Papacy had agreed to abrogate this right wholly or partly. In some countries the privilege had become extinct. In October 1869, was issued the bull of Pius IX., Apostolicæ Sedis Moderationi convenit which appeared to revive the privilegium fori. This, however, is denied by Roman Catholic theologians; according to them where no such Concordat exists, a custom has grown up that breaches of ecclesiastical immunity are to be overlooked; in any case it operates only as to canonical offences.98 Whether that interpretation is correct or not, I need not enquire. But obviously such a rule has no legal efficacy; and it would be a strong measure to deny the Church the right to give to its adherents such monitions—for its commands are no more—as it thinks fit.

      V. Future Safeguards

      In the Home Rule Bills of 1886 and 1893 were elaborate provisions designed to secure equality of treatment. Thus the Irish Legislature was prohibited from making any law.

       Respecting the establishment or endowment of religion, or prohibiting the free exercise thereof; imposing any disability or conferring any privilege on account of religious belief; abrogating or derogating from the right to establish any place of denominational education or any denominational institution or charity; prejudicially affecting the right of any child to attend a school receiving public money without attending the religious instruction at that school; or impairing without either the leave of Her Majesty in Council first obtained on an address presented by the legislative [pg 107] body of Ireland, or the consent of the Corporation interested, the rights, property or privileges of any existing corporation, incorporated by Royal Charter or local or general Act of Parliament.

       (Summary of Clause 4 in Bills of 1886 and 1893.)

      Two comments may be made upon these provisions. They were so minute as to be at once a source of frequent irritation and certain to give rise to frequent conflicts with the Irish Legislature and as to be calculated to encourage litigation. Further, they did not specifically deal with the subject of marriage, an omission which, in view of the decree Ne temere, seems objectionable. They are replaced by a general clause to the following effect:

      “In the exercise of their power to make laws under this Act the Irish Parliament shall not make a law so as either directly or indirectly to establish or endow any religion, or prohibit the free exercise thereof, or give a preference, privilege or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage.”

      How far these provisions will be eluded probably no one can say with certainty. It is difficult enough to ascertain the present situation in Ireland without attempting to predict with confidence the future. Statements diametrically opposite are vouched for by persons of equal experience and opportunity of knowledge.