cognise them as an Episcopate, although it acknowledges them as Bishops.* In fact it is in this point, amongst others, that establishment differs from protection, and, à fortiori, from toleration. Consequently, when Dr. Wiseman says, that when Emancipation was granted to (Roman) Catholics, full power was given them to have an Episcopate, he overstates the legal consequences of toleration; and it is on this fundamental error that the whole of his argument is built up. He would fain represent that there is a mere difference of degree, as it would seem from his reasoning, between an Episcopacy in its ordinary form, and Bishops exercising authority as Vicars Apostolic in partibus infidelium. "Not to allow Bishops," he says, "would have amounted to a total denial of religious toleration." Be it so admitted. Bishops were allowed by the Toleration Act of Geo. 3., but it does not follow, because a denial of Bishops would have been a denial of religious toleration, that the concession of an Episcopate is the necessary result of political emancipation. There is not merely a difference of kind, between titular Bishops acting as Vicars Apostolic of the Pope, and local Bishops acting by their own authority, but there is a further difference of degree, if not even of kind, between the action of local Bishops accidentally aggregated together, and the action of local Bishops in the collective capacity of an Episcopate.

M. Portalis, in his Rapports sur le Concordat de Juillet 15. 1801, makes some pertinent remarks on the distinction between establishment and protection.

* On the occasion of this refusal, which occurred in 1845, the Prime Minister of Belgium, in reply to the Archbishop of Malines, produced from the archives a rescript of the Empress Maria Theresa, expressly forbidding the Belgian Bishops to address the Imperial Crown as l'Episcopat Belge under heavy penalties.

An Established Church admits of degree; it may be either exclusive, like the Roman Church within the States of the Holy See and in Spain, or dominant, like the Greek Church in Russia and the National Church in England. Protection, on the other hand, may be accorded to several, as in France, or to all religions, as in Belgium. Protection also admits of degree. It may be full ecclesiastical protection, which, however, stops short of establishment, inasmuch as if the State protects all religions equally, they must be restricted from entering into conflict and collision with one another, otherwise one will become dominant over the others; or it may be so slight a protection as to become mere toleration, and that too rather of a religious than an ecclesiastical kind. The system of protection, however, differs essentially from that system of indifference, which is termed toleration, under which the law is said to ignore the existence of the tolerated religion, or rather to close its eyes against its existence. Toleration is thus a sort of halting-place between exclusion and protection, and may not always prove to be a position permanently tenable.

But it may be argued, that the religious toleration of her Majesty's Roman Catholic subjects has been rendered more complete by the statutes subsequent to 10 Geo. 4. c. 7. Be it so admitted: but no degree of toleration is equivalent to establishment, as is evident from the state of affairs in Belgium, in which the Roman Catholics have ecclesiastical protection, which they do not, as already shown, possess in England, having here only religious toleration. For the later statutes have not made lawful anything in respect of the supremacy of the Pope, as claimed, used, or usurped within this realm before the reign of Queen Elizabeth. For example, 7 & 8 Vict. c. 102.,

entitled "An Act to repeal certain Penal Enactments made against her Majesty's Roman Catholic Subjects," repeals the enactments of 1 Eliz. c. 1. ss. 29, 30, in respect of the penalties of Præmunire attached to the second offence, and of High Treason attached to the third offence of any person, "who shall maintain or defend the authority, pre-eminence, power, or jurisdiction, spiritual or ecclesiastical, of any foreign prince, prelate, person, state, or potentate, whatsoever, heretofore claimed, used, or usurped within this realm, or any dominion, or country being within or under the power, dominion, or obeisance of your Highness; or shall advisedly, maliciously, or directly put in ure (use) or execute any thing for the extolling, advancement, setting forth, maintenance, or defence any such pretended or usurped jurisdiction, power, pre-eminence, and authority, or any part thereof;" but it left unrepealed those enactments of 1 Eliz. c. 1. ss. 27, 28., "that then every such person and persons so doing and offending, their abettors, aiders, procurers, and counsellors, being thereof lawfully convicted and attainted according to the due order and course of the common law of this realm, for his or their first offence shall forfeit and lose unto your Highness, your heirs and successors, all his and their goods and chattels as well real as personal."

of

"And if any such person so convicted or attainted shall not have or be worth of his proper goods and chattels, to the value of twenty pounds, at the time of his conviction or attainder, that then every such person so convicted or attainted, over and besides the forfeiture of all his said goods and chattels, shall have and suffer imprisonment by the space of one whole year, without bail or mainprise."

The subsequent statute, 9 & 10 Vict. c. 59., enti

tled "An Act to relieve her Majesty's Subjects from certain Penalties and Disabilities in regard to Religious Opinions," further repealed so much of 1 Eliz. c. 1. and 2 Eliz. c. 1. (Irish) as makes it punishable "to affirm, hold, stand with, set forth, maintain, or defend as therein is mentioned, the authority, preeminence, power, or jurisdiction, spiritual or ecclesiastical, of any foreign prince, prelate, person, state, or potentate, theretofore claimed, used or usurped within this realm, or any dominion or country, being within or under the power, dominion, or obeisance of her Highness, or to put in ure (use) or execute any thing for the extolling, advancement, setting forth, maintenance, or defence of any such pretended or usurped jurisdiction, power, pre-eminence, and authority, or any part thereof, or to abet, aid, procure, or counsel any person so offending."

But having removed the statutory punishment, the Legislature stayed its hand, and left the offence precisely as it was by 1 Eliz. c. 1., or any earlier statute, or by the Common Law, as will be seen from the tenor of the following provision: "Provided always and be it declared, that nothing in this enactment contained shall authorize or render it lawful for any person or persons to affirm, hold, stand with, set forth, maintain, or defend any such foreign power, pre-eminence, jurisdiction, or authority, nor shall the same extend further than to the repeal of the particular penalties and punishments therein referred to, but in all other respects the law shall continue the same, as if this enactment had not been made."

Now it would appear on the face of this last provision, that it is still against the law of the land, for a subject of her Majesty to maintain or defend the spiritual or ecclesiastical authority of the Pope, as

heretofore claimed or used by him, within this realm, or to put in use or execute any thing for the maintenance or defence of it. On the other hand, the Roman Catholic subjects of her Majesty have been relieved from the necessity of making any positive renunciation of the Pope's spiritual authority as a condition of enjoying their full civil rights. Whilst their religion is thus completely tolerated, and they are not called upon to do or declare any thing against their religious convictions, they are, on the other hand, restricted from putting into use or execution the complete ecclesiastical system of their church. The contrary position cannot be reasonably maintained in the face of the provision and declaration of the statute just recited.

But Cardinal Wiseman is not content to infer that Emancipation conveyed to the Roman Catholics the right to have an Episcopate, but he says, "the law plainly foresaw and provided for our having regular Bishops one day instead of Vicars." To prove this he first appeals to the language of debate in the House of Lords, before he discusses the Statute Law; but it is a well known rule in the interpretation of statutes, that the intention of the Legislature must be sought for within "the four corners" of the statute, and not be gathered from the speeches of individual legislators. He then sets up an analogy between the concession to a distant country of the power to rule itself by a monarchical government, and the concession to the Roman Catholics of religious toleration, as if there could be any similarity of relation between such a supposed condition of political independence and the religious condition of her Majesty's Roman Catholic subjects within this realm.

Having so far smoothed the way for the discussion,