Images de page

learned judge at the former trial. 2nd, For arresting the judgment. In the argument upon the second point some doubt was raised, whether, on a fair construction of the language of the alleged libel, there was any attack upon the character of the plaintiff; but we need not discuss that question, because there is an independent ground upon which we are of opinion, that the rule for arresting the judgment ought to be made absolute. We have, indeed, all along doubted whether any imputation against Mr. Hearne was contained in the paper, which was the subject of the action; but if there were, it only related to his conduct as a Roman-catholic priest, in regard to the administration of one of the sacraments of his church and the imposition of penance upon a member of his communion. We are not informed by the declaration, and we can take no judicial notice, and we are, in fact, ignorant of the conduct which a Roman-catholic priest should pursue in respect to that matter. in respect to that matter. It was contended in the argument for the plaintiff, that the want of a sufficient allegation upon this point was cured by the evidence which had been given at the trial, and which was to the effect, that if the plaintiff had acted in the manner imputed to him by the statement in the alleged libel, he would be liable to the displeasure of his ecclesiastical superior, and be exposed even to the loss of the temporal advantages which he derived from his office. But to this it was properly answered, that no evidence could cure such a defect as this; and, indeed, no evidence could be properly received on such an issue for this reason, that it was irrelevant to the subject, which had been made the subject of controversy upon the record. It was further urged for the plaintiff, that after verdict there was a distinction between an action for libel (which this was) and an action for slander, inasmuch as in the former the publication of any matter, the tendency of which is to bring a party into disgrace, is actionable, and a jury are the proper judges of such tendency; and that for this consideration the Court had no power to arrest the judgment in the former action. But no authority, either express or indirect, was cited in support of that position. It is not sufficient in an action for libel, to charge the defendant with malicious motives, or to prove injurious consequences to the plaintiff. The plaintiff must expressly charge and exhibit a libel upon the record before the Court can order judgment to be entered up. The facts and circumstances which give the sting to the publication ought to be brought to our notice by proper averments. The consequences of a contrary practice would be extremely injurious to the public. Words, pronounced with the most innocent intention, may cause injury to an individual; and the most malicious intention of a libeller may be disappointed by the result. If we were to dispense with the necessity of having a libel set forth upon the record in order to support a judgment after verdict for the plaintiff,

any words, however general, if accompanied with a charge of malicious intention, might be rendered libellous, though it should not be shewn as a matter of fact that they had been followed by injurious consequences to the plaintiff. For these reasons, and on the authority of Goldstein v. Foss, 6 B. & C. 154, we are of opinion that the rule must be made absolute for arresting the judgment. As to the application for a new trial on the ground that the learned judge did not leave to the jury the question whether the paper in question was a libel; if he had been pointedly requested to do this, or if he had told the jury that, in point of law, it was a libel when it was not, and had withdrawn the question from them, we should have interfered. But the learned counsel did not at the trial take advantage of the defect in the declaration and object to the admission of the evidence; he merely relied upon the bona fides with which the statement was made by the defendant. By pursuing that course, we think the defendant is not entitled to a new trial."*

This judgment determines that the recorded statement of Mr. Hearne's cause of action was essentially defective in not alleging that the imposition of the penance, which it was said the paper in question imputed to him, was contrary to the rules and practice of his church, or would have made him liable to be censured or suspended by his superior. If the plaintiff's declaration had contained such an allegation, he must have proved it in order to entitle himself to a verdict; and on the other hand, the defendant might have raised a distinct issue upon it, and produced text writers of the church of Rome, and living witnesses of its practice, to disprove the allegation. At the trial no objection was taken on behalf of Mr. Stowell, on account of this omission; on the contrary, Mr. Hearne had exclusive advantage from it. The evidence of a Roman-catholic bishop, resident in Scotland, as to the irregularity of such a penance, was not objected to, as it might have been, while no evidence was tendered in contradiction, all evidence on the question being, in truth, foreign and irrelevant to the issues on the record, and therefore improper. Under these circumstances, and with the advocacy of the learned judge, who exhibited to the jury a misleading and inaccurate illustration, by putting as a parallel case an imputation on a clergyman of the Church of England that he had gone out fox hunting on Sunday; the plaintiff succeeded in obtaining a verdict with forty shillings damages. But

* This decision is illustrated by a case in the Court of Common Pleas,-The Archbishop of Tuam v. Robeson, 4 Bing. 17, in the year 1828,-in which a similar motion was made to arrest the judgment, on the ground that a publication, stating that the Archbishop had attempted to convert Roman-catholic priests by offers of money and preferment, was no imputation on his character; but the Court held that such a statement necessarily contained an imputation of misconduct, and refused the application.

Mr. Hearne gains nothing by that verdict, for the court has decided that he is not entitled to judgment. The only difference which would have followed from the rule for a new trial being made absolute, instead of, or as well as, the rule for arresting the judgment, would have been that Mr. Stowell might in that case have forced Mr. Hearne* to pay the costs to be subsequently incurred: the consequence of arresting the judgment is that each party will pay his own costs. The principal result is the same either way. Mr. Hearne has not as yet been able to make out his charge that Mr. Stowell published a libel upon him. He may, however, try again; he may, if he thinks it advisable, bring another action; and he may, if he dares, insert in his declaration the allegation, for want of which the verdict which he obtained was useless. If he should so think and so dare, we do not hesitate to assert, beforehand, that he will not even obtain a verdict.

In conclusion, we are glad to direct the attention of our readers to the resolutions and proceedings of the Manchester and Salford Protestant and Reformation Society upon this event. The Resolutions of the Committee were advertised in the Record of December 20; and it has issued notice of a meeting of "the Friends of Protestant Truth," to celebrate the event on the 3rd of January, 1842.


To bring charges against modern Romanism, taken from the records and documents of past times, is in the present day, alas, deemed uncharitable and unfair! Thus when we charge them with holding that when heretics are weak enough they ought to be punished, but when too strong, to be endured, we are pointed at as bigots, and laughed at for our pains. So, also, when we boldly declare that they deny salvation to all without the pale of their own church, we are told it is a fiction which exists only in our own enthusiastic minds. But if we can shew documents of the present age which substantiate any of these charges, surely mockery should give place to serious consideration, and an illtimed liberality to a sound and unprejudiced judgment.

We were walking along Kensington the other day, when in a shop window we saw advertised the speech of D. French, Esq., "delivered at the Annual Meeting of the Catholic Institute, held at the Freemasons' Tavern, on Thursday, May 13, 1841." This precious morsel being only one penny, curiosity tempted us to buy it, and we think the penny not thrown away.

In the first place, we learn from the speech itself that Romanists,

Or rather the so-called "Catholic Institute," which is the real plaintiff.
VOL. IV.-Jan. 1842.

however they may seem to scorn the meetings at Exeter Hall, as having a "venal atmosphere," &c., do not hesitate to adopt the same method of propagating their opinions; so that we learn from this that it is not the principle of the meetings that they object to, but the purpose for which they are held-viz., to counteract Romanism by exposing its impostures. Nay, more, Daniel O'Connell himself, who has inveighed most bitterly against the said meetings, was a speaker on this occasion, and most lavishly bespattered with compliments as absurd as they were empty. But our chief object in these remarks is to shew that, in the opinion of Mr. French, (a barrister-at-law, and one who has conducted a controversy with a Protestant clergyman, and who must therefore know something about his own church,) none can be saved but those who belong to the church of which he is a member. The speech of Mr. French is chiefly on the subject of the Oxford Tracts. After speaking of the similarity of some of their doctrines to those of his own church, he says, "His (Mr. Newman's) "genius is unquestionably great, his learning is deep and luminous; his admiration of Catholic piety is recorded by his own pen. What wants he then ? what, I ask, is still wanted by the talented author of this Ninetieth Oxonian Tract? Why, my friends, you know it as well as I do; let there be but one single beam of descending grace, and he will plant that foot, which has so triumphantly, so nobly, trampled upon reforming ignorance, falsehood, and calumny, in the courts of Jerusalem, in the temple of the living God; yes, my friends, he will take his stand with you and me, unshaken, upon the rock of ages, the Catholic church; that church which the Rev. Vicar, familiar as he is with the pages of antiquity, will find thus admirably described by Lactantius, a Catholic layman, who flourished in the year of our Lord 300."

Before giving the quotation, we would request our readers to ask themselves this question, What does Mr. French mean here when he speaks of the Catholic church ?-undoubtedly the Romish; for, in page 4, Mr. French says, "Why does he still remain the slave of human respects, and the imbibed prejudices of a confessedly erroneous education, vainly glittering with his pen in the shades of Oxford, instead of nobly, manfully stepping forward, armed with the buckler of faith,' and professing himself a Catholic." Mr. Newman does profess himself a Catholic; but Mr. French means a Roman Catholic. The quotation then follows:

"It is the Catholic church alone that keeps the true worship of God. This is the fountain of truth-this is the house of truth-this is the temple of God; into which if a man enters not, or from which if any man goes out, he is an alien and a stranger to everlasting life and salvation."

Now the impudence of any one who would apply this to the Romish church is truly surprising. Why, the Romish church was not in existence when Lactantius penned the above. True,

the Catholic church was then in the world, but the Catholic and Roman-catholic churches are very different things. The Catholic church consists of all those of every age and country who are really God's people, while the latter is a contradiction in terms; for it calls itself a local-universal church, which is absurd, and which, though it may contain many of God's people, is yet an apostate church. When this quotation is applied to the Catholic church, it is quite true that none can be saved but those who are in that church; for being in that church implies being in Christ, because all who compose it are Christ's. Not so, however, with the Romish church; and this barefaced attempt to make Romanism a thing of the end of the third century but shews the weakness of their cause.

This, then, we learn-that Mr. French first confounds the Catholic church with the Romish church, and then attempts to force a passage to apply to the latter which was written about the former, long before Romanism was born, and, we may say, thought of; and by this application he fully proves shat he considers salvation denied to all who are without the pale of his own church.

We will end these few remarks with a quotation from Mr. French's speech, in which we cordially concur. He says, in page 10, "But, gentlemen, although I approve most unreservedly of the arguments by which the Rev. Mr. Newman has proved the antiquity of our Catholic dogmas, I must say that I by no means coincide with him in the idea he endeavours to inculcate, that there is in the Articles of the Church of England sufficient flexibility, or elasticity, (as the honourable gentleman, Mr. O'Connell, has expressed it,) to enable one to stretch them out in such a manner as to make them run parallel in one straight, undeviating, unswerving line with the tenets of the Church of Rome."

Let every Briton thank his God for the establishment of a church in this land which has such a barrier against Popish errors as our Thirty-nine Articles confessedly are. Let us abide by them, and by God's blessing we shall do wondrously.

W. T. V.


(Continued from Vol. iii. p. 396.)

You may think this is a made-up story, but they are alive that can testify the truth of the greatest part of it. I stood, as I told you, stock still, declaring I would not go any further in the work of blood; and the other boys gathered about me, uncertain what to do. It was easy enough to see they wouldn't have stuck at putting me out of the way without loss of time; and 'tis certain I reckoned myself all one as cast for death; but an alarm

« PrécédentContinuer »