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manner the laws are excelled or infringed, by bringing the king's counsellors to a strict account. 'But whatever may 'be the issue of this examination,' says Montesquieu, 4 the 'king's person is sacred, the moment he is arraigned or 'tried, there is an end of liberty.'* The constitution then is equally in danger of being overturned by a refusal of allegiance, ' applicable not only to the regal office of the king, 'but to the natural person and blood royal.'f
Objections from the Hibernian JUagazine.
First: 'No man can safely swear to a thing of which he 4 is not certain. Now the test obliges the Catholics to de'cjde by oath, that they have positive and clear reasons not
* to believe th^t any fbreign prince ought to have any civil 'pre-eminepce within this realm. Now, what individual 4 can pretend to so deep an insight into the much debated
* rights of princes, as to determine with certainty on so dif4 ficult and so abstruse a question; especially as the words 4 ought and right, extend to any kind of right, whetlier na4 tural, i. e. by right of blood, or acquired?'
Answer. The test obliges the Catholics to no such thing. All it requires is a negative belief, or a suspence of belief, concerning the rights of foreign princes, (and 1 do declare that 1 do not believe.') The paragraph is worded in a negative stile. But in a negative oath, ignorance of another man's right exculpates the person who swears, from perjury. A familiar example will set the matter in a clear light. Paul is in possession of a farm from time immemorial; this possession, and several other strong" reasons incline me to believe, that he is the only rightful and lawful owner. Peter revives a dormant claim, which in my opinion is but a shadow. A magistrate interrogates tne in this manner: I)o you believe that Peter ought to have a right to Paul's farm T I answer, / do declare, that I do not believe it. In the name of goodness, whatever Peter's title may be, do 1 perjurp myself in swearing to what is really my opinion?
* Spirit of Laws. vol. 1. p. 181.
t Blackstone's Comment, vol. 1. p. 371.
The word right is not mentioned in the oath, and in case it were, the objector's distinction, betwixt natural and acquired would give him no advantage; for with regard to civil pre-eminence and jurisdiction over free states, there is no right when the laws of nations are against it.
In Prance, the Salique law excludes females from inheriting the throne. Has the king's eldest daughter any right to it? In Portugal, where the crown is hereditary, the law disqualifies every stranger who lays claim to the throne by right of blood. Have foreign princes, though related to the royal family, any right to civil pre-eminence within that realm?
Second: 'The words, ought to have, seem to have a re'trospect to the revolution, whereby James II. was
* deprived of the throne, because he was a Roman Ca
* tholic: for some members have affirmed, that no one ( could take this oath, but on revolution principles. If this 'be so, I swear what is equivalent to this—The being a Roman 'Catholic is a just and reasonable disqualification for not enjoy'ing hereditary right. What Protestant in his senses 'would not think me perjured when I swear in this manner.'
Answer. Every Protestant, if such were the meaning of the oath; but neither the sense nor the letter of the oath is susceptible of such a forced construction. The framers of the test have blended together an oath of allegiance, and the pld declaration against Popery, compiled by James I. In this declaration, the words ran thus: 'And I do declare, 'that I do not believe that the Pope of Rome, &c. hath or 'ought to have* any authority, ecclesiastical or spiritual, 'within this realm.' By this declaratien translated into English, and still to be seen in the statutes, the Roman Catholics were obliged to renounce the Pope's spiritual supremacy, otherwise they had nothing to expect but halters and gibbets from our beloved Stuarts. The Senators of 1775, more humane than the royal pedant of 1603, have expunged in favour of distressed subjects, the Words ecclesiastical and spiritual, and substituted temporal and civil in their place. JFhus have they enabled the Catholics, to testify their loyalty
* Habct Tel debet habere.
without swearing against their conscience. The words 'ought to have,' have then no retrospect to James II. who deprived himself of the throne, by quitting the realm, after having abdicated the constitution, by arrogating to himself a dispensing power.
Third: 'Marriage is founded on a civil contract, though 'of divine institution, and a sacrament in the belief of Catho'lies. In denying the Pope's civil power directly or indi'rectly within this realm, so far at least I deny the church's 'authority over a sacrament.'
Answer. A flat sophism! The Pope has no civil power direct or indirect in this realm, over any sacrament, but a spiritual power ratione Sacramcnti, precisely as a sacrament, and so far it is a spiritual thing. In virtue of my ordination, I have power to consecrate bread and wine; have I any civil power over the baker's shop, or the vintner's cellar?
Fourth: 'I swear that I do not think that I can be ab4 solved of this declaration, or any part thereof, although any c authority whatsoever shall dispense with or annul.the same. 'Now, * authority whatsoever' is of universal import. It in'eludes the supreme authority of the state, the authority of 1 God himself. Can a Catholic or Protestant swear that 'neither God, nor the state can absolve him of any part of this 1 declaration, whereas God can deprive a tyrannical king of 'his throne, and the supreme authority of the state can ab'solve a subject from his allegiance, and permit him to retire * to whatever place he chooses, as a master can manumit a 'slave.'
Answer. By * authority whatsoever,' is not meant the authority of God, nor the supreme authority of the state, but the authority of Rome, or foreign authority.
Fifth. 'The oath is to be taken in the plain and ordinary 'sense of words. Authority whatsoever, in the plain and or'dinary sense of the words includes the authority of God 'and the state.'
Answer. The plain and ordinary sense of any word, is the sense annexed to it, by the common consent and custom of mankind, according to their respective idioms and languages: but in any legal act, mankind never extends the words 'authority whatsoever,' to the authority of God, who is above the controul of human laws, nor to the supreme authority of the state, which is never presumed to bind its own hands, whereas it is an invariable maxim in human laws, that the same power which enacts them, can repeal and dispense with them. 'Per quascunque tfauses res nascitur, per eas4 dtm solvitur.' • •
Sixth: 'The oath forbids mental reservations on pain of 4 perjury. Now mental reservation is a proposition, which 4 taken according to the natural import of the terms, is 4 false; such is this proposition, / declare that no authority 4 whatsoever can dispense with any part of this oaih ; ac
* cording to the natural import of the terms, it is false, be
* cause God and the state can dispense with a part of it: but 4 if qualified by something concealed in the mind (v. g. ex4 cept God or the state) it becomes true. In that very pro-.
* position, there is a mental reservation, the great refuge of
* religious hypocrites, who accommodate their consciences 4 with their interests.' . .'
Answer. The definition is just, but proves nothing. For reservations were introduced in order to deceive the person to whom we swear. But the magistrates, in whose presence we take the oath, know that by authority whatsoever, is not meant the authority of God, nor that of the state.
Seventh: 'The last paragraph of the test, tends to con'tradict an established doctrine of the Catholic Church, 4 which is, that in the Church there is vested a power of ex4 amining into the nature of oaths, (which are acts of reli'gion) and of determining whether they be, or be not law'ful.'
Answer. The test does not deprive the Church of the power of examining into the lawfulness of oaths. The last paragraph is entirely levelled against the dispensing power: the right of examination is quite out of the question. Without thinking that I can be acquitted of this declaration, fa.
Eighth. 4 A fundamental article of the Catholic faith, is 4 the infallibility of the Church. This article is reversed by 4 these words, without thinking that I am or can be acquitted 4 of any part of this declaration, although the Pope or any a«
* thority whatsoever, shall declare that it was null and void lfrom the beginning. In fine, in taking the oath, a Catholic 'must reason in this manner. It is an article of my faith, 'that the church is infallible $ the pillar of truth, says St. * Paul, which the powers of hell can never overthrow, according to the promise of Christ. Now should the church de'clare, that this oath is null and void from the beginning, 1 'bind myself by oath not to believe her. Is this consistent 'with the principles of a Catholic.'' To believe that the 'church is an infallible guide, and to bind himself by a so* 'lemn oath not to believe her, although she should define 'contrary to his opinion!'
Answer. A Catholic should sooner expire on the wheel, than take an oath implying an abjuration of any point of his religion. We have not here a permanent city, and in suffering with uprightness and integrity For conscience' sake, we expect a better. We know that life is short, that the Christian is condemned to the cross, and that the pampered tyrant as well as the oppressed slave, must appear naked at the awful tribunal of Jesus Christ. •• «
We are not to court the favours of government at the expense of conscience; neither does the oath impose such a rigorous condition.
The words, k without thinking that I am or can be acquit'ted of this declaration, although the Pope, or any authority 1 whatsoever, shall declare that it was null and void from the 'beginning,' these words, I say, mean no more than that yon are convinced of the truth of what you swear; and that, in case of a dispensation you think yourself still bound to keep your oath. For the words, 'acquitted, absolved,' regard the dispensing power. Now that the doctrines mentioned in the declaration, are not our real principles, has been sufficiently proved; and reason, as well as religion, informs us, that a dispensation granted against the law of God, or good morals, 'cannot acquit or absolve us before God and 'man.' 'It is not a faithful dispensation,' says St. Bernard, 'but a cruel dissipation.' 'Non fidelis dispensatio, sed 'crudelis dissipatio.'*
Ninth: 'Let us suppose that the church shall declare the 'oath null and void from the beginning, you bind yourself 'by oath not to believe her; and thus renounce your religion 'under cover of loyalty.' ■ • »
* De Dispensatione et Prsecepto.