f (JN!VER% o T S 5 = UNIVER% ^clOS-ANCeUr.*, .^E-UBRABYOc e o t^s .^^^ : "->L f~* * * *-** J REV. ROBERT O'KEEFFE, P.P. v. fflS EMINENCE CARDINAL CULLEN LOS DOS : PUIXTED BY SPOTTISWOODE ASD CO., 3CEW-STRET5T SQUARK AND PARLIAMENT bTRKKT COUET OF QUEEN'S BENCH (IRELAND) EEPOET OF THE ACTION FOB LIBEL, BROUGHT BY THE REV. EGBERT O'KEEFFE, P.P. AGAINST HIS EMINENCE CARDINAL CULLEN WITH AN INTRODUCTION HENEY CLAEE KIEKPATEICK BARRISTER- AT-LAW LONDON LONGMANS, GEEEN, AND CO. 1874 A II lights rtsfrred CONTENTS. INTRODUCTION 2067914 Stack Annex PROCEEDINGS ON THE DEMURRER, JUDGMENTS OP THE COURT. PAGE MR. JUSTICE BARRY . . . . . . .12 MR. JUSTICE FITZGERALD ..... .39 MR. JUSTICE O'BRIEN. . . * . .. . 51 LORD CHIEF JUSTICE WHITESIDE 75 TRIAL AT NISI PRIUS. SECOND DAT. Examination of Father O'Keeffe . . . . .121 THIRD DAT. Examination of Father O'Keeffe (continued) . . . 150 Cross-examination of Father O'Keeffe . . .. . 216 FOURTH DAT. Cross-examination of Father O'Keeffe (continued) . . . 244 FIFTH DAT. Cross-examination of Father O'Keeffe (continued) . . .317 Re-examination of Father O'Keeffa ..... 335 vi Contents. SIXTH DAT. PAGE Examination of Cardinal Cullen ..... 341 SEVENTH DAT. Examination of Cardinal Cullen (continued) . . . 358 Cross-examination of Cardinal Cullen ..... 393 EIGHTH DAT. Cross-examination of Cardinal Cullen (contintied) . . . 415 Examination of Archbishop Leahy ..... 460 NINTH DAT. Cross-examination of Archbishop Leahy .... 476 Re-examination of Archbishop Leahy ... . 502 Examination of Bishop M'Evilly ..... 508 Cross-examination of Bishop M'Evilly ... . 519 Examination of Rev. Caesar Roncetti ..... 532 TENTH DAT. Cross-examination of Rev. Caesar Roncetti . . 539 Re-examination of Rev. Caesar Roncetti .... . 549 Examination of Dr. A. Jacobini .... . .550 Cross-examination of Dr. A. Jacobini ..... 551 Re-examination of Dr. A. Jacobini ... . 551 Examination of Rev. H. Neville ..... 555 Cross-examination of Rev. H. Neville ... . 564 JUDGE'S CHARGE ....... 570 APPENDIX ....... . 577 INDEX . . ... 595 INTEODUCTION. THE TRIAL of which, a report is contained in the following pages may fairly be regarded as one of the most singular events in the modern history of Ireland. The simple fact of a person in the comparatively humble station of a parish priest calling to account in a court of law an ecclesiastical superior, who occupies the high position of Cardinal of the Church and delegate of the Pope, is of itself calculated to attract the notice and excite the interest of the community ; but apart altogether from this circumstance, the insight which the evidence affords into the structure and adminis- tration of the ecclesiastical system which exercises so powerful an influence in this country, renders it worthy of the consideration and study of every thoughtful man. The laws and organization of the Roman Catholic Church have engaged the attention of many persons, who have spared neither time nor labour in the investigation of the subject, but whose conclusions from their imperfect opportunities of information have not unfrequently proved to be erroneous or defective. Too often also, prejudice in some form or other has perhaps unconsciously influenced the opinion of inquirers, and their representations must therefore be received with some measure of hesitation and distrust. The case reported in this volume possesses this rare recommendation, that it is a narrative of incontestable and admitted facts related by the prominent actors in the events recorded. The views put forward with respect to the govern- viii Introduction. ment and discipline of the Church are not the speculations of mere theorists, or the rash assertions of excited contro- versialists ; they are the deliberate statements of men whose position necessitates a full and accurate knowledge of the sub- ject of which they speak, and whose life is spent in the actual administration of the laws which they profess to expound. The Rev. Robert O'Keeffe, the plaintiff, was the parish priest of Callan, in the County of Kilkenny : the defendant was the Cardinal Archbishop of Dublin, Primate of Ireland, and Legate of the Pope in this country. The action was for libel alleged to have been published by the defendant of the plaintiff, and contained in two sentences of ecclesiastical cen- sure. One of them the first in point of time, dated Nov. 13, 1871 was a sentence purporting to suspend the plaintiff from his office of priest, and was in the following words : * We suspend and declare suspended, you, Robert O'Keeffe, parish priest of the town named Callan, from all spiritual jurisdiction, from the administration of sacraments, and especially from hearing confessions, from celebrating the most holy sacrifice of the mass, from preaching the word of God, and from every ecclesiastical office, until you come to your right mind and make full satisfaction, in our opinion, to the Church We deprive you, and declare you deprived of all benefit ecclesiastical or conferred on you by the Church, and of all dignity or rank conferred on you in the same way.' l The second libel complained of was contained in an in- terdict published by the Cardinal against the chapel of the parish in which Father O'Keeffe had continued to officiate notwithstanding his previous suspension. It was as follows : ' Since it has been told to us by credible witnesses that in a church or parochial chapel of which the priest Robert O'Keeffe is said to have possession, in the town of Callan and in the diocese of Ossory, the censures of the Church are violated or set at naught, that the mass is illegally 1 See p. 200. Introduction. ix celebrated, that the sacrament of the Eucharist is adminis- tered contrary to the discipline of the Church, and confes- sions heard without jurisdiction, and with no regard for ec- clesiastical suspension, and that several other things which infringe the ecclesiastical law and episcopal authority are almost daily performed ; when we were informed about all these things, we immediately determined to lay the aforesaid parish church under an ecclesiastical interdict, according to the mode of proceeding of the canon law, which we now do,' &c. &C. 1 The ' summons and plaint,' the issuing of which is the first step in an action at law in Ireland, was dated the 26th February, 1872. It set forth the words complained of, alleged that in consequence of their publication the plain- tiff had been dismissed from the office of chaplain to the Callan Union Workhouse, and claimed as damages the sum of 10,OOOZ. It consisted of four ( counts ' or paragraphs, in which the complaint, substantially the same, was differently stated according to legal practice. In the first count the words of the suspension were recited, and an ' innuendo ' or interpretation was given to them. They were alleged to mean that Father O'Keeffe ' had been guilty of such conduct and had acted in such a manner as to render himself unfitted to discharge the duties of parish priest,' and * that he ought to be deprived of his office.' In the second count the same words were set out with a different innuendo, viz., that ' the plaintiff had been legally suspended from the office of parish priest.' The third count repeated the same words, but con- tained no innuendo, leaving to the jury the task of interpret- ing them, and of saying whether they constituted a libel. In the fourth count the words of the interdict were com- plained of, and the innuendo attached to them was that Father O'Keeffe ' had been legally suspended from his office of parish priest, and had disregarded the rules and disci- pline of the Church, binding on him as such.' 1 See p. 208. x Introduction. The defence put in by the Cardinal was to the effect that he was an Archbishop and Cardinal of the Church to which Father O'Keeffe belonged, and by the laws, ordinances, and discipline of which he was bound ; that the Pope, whose right to do so was acknowledged by all members of the Roman Catholic Church, had issued a rescript l authorizing him to inquire into the conduct of Father O'Keeffe, and to pronounce such sentence as might seem just ; and that in pursuance of this rescript he had made the required investi- gation, and had subsequently pronounced and published the sentences complained of by the plaintiff. In his subsequent pleading, Father O'Keeffe, while not denying the authority of the rescript issued by the Pope, or his own obligation to observe the rules and discipline of the Roman Catholic Church, so far as they were compatible with the law of the land, contended that he could not be justly suspended unless he had violated some law of the Church ; that the only law which he had infringed was one by which ecclesiastics were prohibited from impleading each other in Her Majesty's Courts ; that this rule was illegal, and one which could not bind any citizen of this country, as it would tend to oust the courts of their jurisdiction ; that he was not therefore required to observe this rule ; that consequently a sentence of suspension founded on his violation of it was illegal and void, and that the publication of such a sentence could not be justified in a court of law. Upon these pleadings two great questions were raised for judicial decision. First, whether a religious society could adopt and enforce a rule by which its members should be precluded from seeking redress for civil injuries in Her Majesty's Courts, and whether connection with an association in which such a rule existed created a privilege which would sanction and protect in the case of its members acts which in the case of other persons would assuredly be forbidden and punished by law. Behind this was a second and not 1 See p. 345. Introduction. xi less important question, viz., whether an edict issued by the Court of Rome could be regarded as valid in this country, or could be held to justify and permit conduct which other- wise would be indefensible. This last question arose as follows : In his capacity simply of Roman Catholic Arch- bishop of Dublin, and Cardinal of the Church, the defendant had (as he himself admitted) no ecclesiastical jurisdiction over the priest of a parish not within the limits of his diocese. He therefore, as such, had no power to suspend Father O'Keeffe, and no right to publish the censures complained of. The Cardinal indeed in his defence did not claim this autho- rity. He justified his proceedings on the ground that he had received from the Pope a special rescript J addressed to him as delegate of the Apostolic See, and investing him with ' necessary and suitable powers, whereby he was authorized to proceed in the matter of the plaintiff.' It was by virtue of this rescript that he asserted himself to have, ac- cording to the laws and usages of the Church, full power and authority over Father O'Keeffe. Thus the question of the validity of a papal ordinance to confer jurisdiction and to justify proceedings which without its protection would be manifestly illegal, was once more submitted for the decision of an English court of law. These were the two main points raised upon the plead- ings in this case, and argued before the Court of Queen's Bench in November, 1872. In delivering judgment the Court disagreed. One judge 2 decided both points in favour of the Cardinal. Two others 3 held that the rule which pro- hibited ecclesiastics from suing each other was not contrary to public policy, and that the Cardinal was privileged to issue his ecclesiastical censures. With regard to the rescript, they were of opinion that it was illegal under statute, 4 and could not be pleaded as a defence to the action ; that, how- ever this might be as a matter of pleading, the plaintiff had ' See p. 345. 2 O'Brien, J. 3 Fitzgerald and Barry, J.J. * 2 Eliz. c. 1, sees. 5 & 12 (Irish). xii Introduction. contracted, when entering the Church, to obey all such papal ordinances, and by his appearance before the Cardinal had recognized the jurisdiction which it purported to create, and that therefore he was now estopped from raising the question of its illegality. Both parties were in pari delicto, and the Court would not interfere on behalf of either, or lend its assistance to compensate with damages a plaintiff who com- plained of injuries attributable to his own misconduct. In their judgment, therefore, the illegality of the rescript did not invalidate the pleas of privilege. The Lord Chief Justice decided in favour of the plaintiff on all the points raised by the demurrer. He held that the rule of the Church which forbade ecclesiastics to resort to the civil courts without providing any other means of procuring redress for injuries inflicted upon them, was a rule which the law of the country would not permit or recognize ; that it was not competent to any man thus to renounce his natural liberty and his civil rights ; that the rescript of the Pope was void by statute; that all the proceedings of the Cardinal based on that document were consequently illegal, and that no privilege could be created by a contract between parties to submit to the authority of an ordinance which the laws of England disallowed and condemned. In the result, then, the Court of Queen's Bench, by a majority of three to one, allowed the defence of privilege put in by the Cardinal to be good and valid, and the case upon these pleadings was sent for trial before a jury. In view of the issues raised in this action, it is interesting to refer to the debates which took place in Parliament upon the Religious Disabilities Eelief Bill in the year 1846. The object of this bill, which subsequently became law, 1 was to repeal the old statutes which had been directed against nonconformists, and amongst them the statutes which pro- vided against the dangers or supposed dangers incurred by the claim of the Pope of Rome to exercise authority by bulls 1 Stat. 9 & 10 Viet. c. .59. Introduction. xiii or rescripts in this country. This bill was introduced by Lord Chancellor Lyndhurst in the House of Lords, and gave rise to animated discussions, chiefly with reference to its pro- bable effect upon the relations of the Court of Eome with the United Kingdom. In the debate upon the second reading, which took place upon the 30th April, 1846, Lord Brougham said : ( According to law the Queen was supreme in all matters, whether civil or ecclesiastical. This being the case, how could this or any other well-governed country allow that foreign potentate, without let or hindrance, to send over bulls or rescripts? He agreed that the Pope might send over a bull which would be a libel on the Church of Eng- land as by law established, or on the Parliament, or the Sovereign of England, and which might be dealt with accordingly. It might be said it was not necessary to have a prohibition for the introduction of such instruments, as the persons publishing them, would, if they were libels by law, be liable to criminal prosecution ; but the Vatican would not be checked in this way, for they could frame a rescript which would operate most injuriously over the minds of the priests and of their followers, and which was not a libel, technically speaking, and the publication of which, therefore, could not be punished a publication working mischievously through the country and producing the worst results ; and yet, unless such publication could be proved to be a libel, either a trea- sonable, or seditious, or defamatory libel, it could not be suc- cessfully prosecuted. He would not state a very decided opinion as to what should be done, as he saw difficulties on both sides, but he wished to state that he entertained grave doubts whether he could consent to remove a punishment for receiving rescripts from the Bishop of Rome, who claimed supremacy as well in temporal as in spiritual matters.' l On a subsequent occasion, when the bill was in com- mittee, he said : ' He thought that danger might accrue if there was not some check. He thought that it was a great 1 See Hansard's Parliamentary Debates, vol. 86 (3rd series), 1266-7. xiv Introduction. anomaly a grievous anomaly to allow the orders and commands of a foreign potentate to be received without let or hindrance. 5 It was not so with Austria, France, Portugal, or Naples. * In all these countries they refused to receive, or to allow the publication of bulls from Rome, without the sanction of the civil and ecclesiastical authorities. They were not regarded as the worse Catholics for this. . . . He thought such bulls should have the sanction of the civil authorities before they could be promulgated or considered valid.' l During the same discussion Lord Stanley (afterwards Earl of Derby) said : ' Eoman Catholic subjects of this realm might resist the authority of the Pope, and if any Roman Catholic clergyman by a bull or rescript attacked any Roman Catholic subject of the crown, the law would step in and would protect the right of any person, and would give damages against the priest making the attack. There were many instances which he could cite in which the law had stepped in and protected the rights of the people. Indeed, within the last few months a conviction of this kind took place in the county of Cavan. In this instance a priest had excommunicated from the altar a Catholic layman, who ap- pealed, not to the Pope, but to the civil jurisdiction of the country, which gave to the layman damages against the priest. That was what was meant by saying that the Pope had not any right to have civil or spiritual jurisdiction, and this was not altered by the bill.' a Lord John Russell introduced this Bill into the House of Commons in August of the same year. On that occasion he said : ' It has been laid down by the greatest authorities of former times, by Lord Hale and Lord Coke, that the supremacy of the crown of these realms in matters ecclesiastical and spiritual, is part of the common law of the land. The same opinion has been given within the last few weeks by Lord Denrnan, Lord Campbell, Lord Lyndhurst, and therefore we 1 See Hansard, vol. 86 (3rd series), 607-8. 2 Ibid. 611. Introduction. xv may assume that there is no danger whatever that in taking away these penalties (i.e., for maintaining the authority of the Pope) we do in any way touch upon the doctrine of the supremacy of the crown. We take away penalties against those persons who maintain the supremacy of any foreign power or potentate over this realm. It cannot be seriously said that there is any advantage in keeping up penalties of this kind for the mere assertion of the spiritual power of the Pope in these realms. If it is only an opinion held by persons of the Roman Catholic religion, it ought not to be punished so far as it is an opinion, and nothing is done in con- sequence of that opinion by which the course of law is dis- turbed. If in any way a person were to question the Queen's supremacy, so as to bring the question before a court of law, no doubt the doctrine which I have mentioned would be maintained, and the law would make provision accordingly for the settlement of that doctrine.' 1 The result of the dis- cussions in Parliament on this occasion was that certain clauses were inserted in the Act, 1 of the utmost importance in considering the questions raised upon the present case. The preamble recites the statutes which it is intended to repeal, and after referring to the 2nd Eliz., c. 1 (Irish), it contains the following proviso : * 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.' 2 The preamble also states that the statute 13th Elizabeth, c. 2, which forbade the bringing in of papal bulls &c., shall be repealed * so far only as the same imposes the penalties 1 Ilan.iard, vol. 88 (3rd series). 361. 2 8t.it. 9 & 10 Viet. e. 59. xvi Introduction. or punishments therein mentioned ; but it is hereby declared that nothing in this enactment contained shall authorize or render it lawful for any person or persons to import, bring in, or put in execution within this realm any such bulls, writings, or instruments, and that in all respects save as to the said penalties or punishments, the law shall continue the same as if this enactment had not been made.' The anticipation expressed by Lord John Russell, that any attempt by the Pope to exercise authority in this country by means of rescripts would be resisted by the courts of law, has not proved unfounded. The Court of Queen's Bench, true to its ancient traditions, has declared in this case the first in which the question has been raised in modern times that the papal ordinance from which the Cardinal sought to derive authority and jurisdiction, and by virtue of which he claimed to be exempt from legal liability, was wholly invalid and inoperative, and could not be admitted as a justi- fication of proceedings by which an injury was inflicted upon a person entitled to the protection of the law. The circumstances which gave rise to this remarkable case extend over a series of years. Father O'Keeffe, the plaintiff, took orders in the year 1840, and in 1863 he was appointed parish priest of his native town of Callan, in the County of Kilkenny. Dr. Walsh was at that time bishop of the diocese. For some years all went smoothly, and Father O'Keeffe and his ecclesiastical superiors continued on friendly terms with each other. The events in which all the subse- quent disputes appear to have originated took place in the year 1868. Father O'Keeffe, who seems to have been active in setting up a complete machinery for parochial work, became desirous of establishing a convent of nuns in Callan. Having obtained the approval of the bishop, he took a house and expended a considerable sum of money in preparing it for the reception of the sisters whom he had engaged to come from France. The bishop, however, for some reason which does not clearly appear, subsequently changed his mind with Introduction. xvii reference to this scheme, and withdrew his sanction. In. a conference which took place at Kilkenny in May, 1869, l the subject was discussed, and the bishop used some expressions in presence of other clergymen, in consequence of which Father O'Keeffe sued him in an action for slander. The case, however, never came to trial. The bishop consented to pay a sum of 550Z. damages and costs, and the record was withdrawn. From that time the ecclesiastical affairs of the parish of Callan fell into confusion. In April, 1869, there had been a * mission ' held at Callan for the purpose of raising funds required for various parochial objects. Upwards of 200 L was obtained, and on Sunday the 8th August Father O'Keeffe gave his congre- gation an account of the manner in which the money had been expended. On the following Sunday, while he was officiating in a chapel of ease, at a distance from Callan, his curates declared to the congregation assembled in the parish chapel, that some of the statements which had been made on the preceding Sunday were altogether untrue. Thereupon Father O'Keeffe wrote to the bishop of the diocese (Dr. Walsh) reporting the circumstances, and requesting him to remove the curates from the parish. 2 A copy of this letter he sent to Cardinal Cullen, with whom he had had a correspon- dence relative to his previous dispute with Dr. Walsh. It does not appear that Dr. Walsh took an}- notice of Father O'Keeffe's letter of complaint, but Cardinal Cullen replied on the following day, urging him to be reconciled to his bishop, ' to submit to him, and to endeavour to obtain absolution from any censures that may have been contracted.' The Cardinal's counsel and admonitions produced the desired effect, and on the 1st September, 1869, Father O'Keeffe sent an apology to Dr. Wa,lsh, in which he expressed regret for having taken legal proceedings against him, promised sub- mission to his authority for the future, and withdrew his demand ' for the removal of the curates or anything else.' 3 1 See p. 125. ! See p. 140. * See p. 421. a 2 xviii Introduction. This apology was read at the bishop's request * by Father O'Keeffe to his congregation, and all cause of difference between them seemed to be at an end. Shortly after this, Father O'Keeffe wrote to Cardinal Cullen with reference to the old scheme of establishing a con- vent of nuns at Callan, for which, as he asserts, his parishioners were exceedingly anxious. 2 The Cardinal replied, recom- mending him to abandon the project altogether, as the bishop was opposed to it. This advice, however, Father O'Keeffe was not disposed to follow, and he informed the Cardinal that as he considered that Dr. Walsh, in resisting their united wishes, was denying his people and himself ' their just canonical rights, he would use every proper means within his reach of enforcing them.' 3 Thus the war between the bishop and the priest broke out afresh. Father O'Keeffe, believing that his curates in denouncing him to the congregation had been instigated by Dr. Walsh, now brought a second action against his bishop for ' procuring and inciting ' the curates to speak the slanderous words of which he complained. 4 The case was tried in July, 1870, and resulted in the nonsuit of the plaintiff, there being no legal proof that the bishop had authorized the conduct of the curates. In the month of October following Father O'Keeffe was served with a document signed by the vicar- general of the diocese, in the following terms : ' DEAR SIR, In punishment for the action at law taken by you against the Right Rev. E. Walsh, R.C. Bishop of Ossory, and tried before the Hon. James O'Brien, second Justice of the Court of Queen's Bench in Irelnnd, on the 5th and 6th days of July last, I, vested with the re- quisite powers, do hereby suspend you from your " office," from all its functions, from all administration in thing* spiritual. ' Your humble servant, ' E. M'DONALD, V.G., Diocese of Ossory.' 5 1 Sec p. 143. 2 Sec p. 144. f See p. 145. > See p. 147. 5 See p. 149. Introduction. xix To this Father O'Keeffe replied by a letter 1 in which he stated that the simple assertion by the vicar-general that he was ' vested with the requisite powers ' could not be taken as conclusive ; that he had been denounced as a liar at the altar by authority alleged to have been given by the bishop ; that he had asked in vain for redress from his superior, and had therefore been compelled to seek it before a lay tribunal ; that in so doing he had violated no law and incurred no guilt, and that he would pay no regard to an attempt to inflict a punishment which he did not deserve. The only notice taken of this letter by the vicar-general was by the service of a second sentence of suspension, 2 which was afterwards followed by a third, dated the 10th December, 18 70. 3 This last suspension was issued in view of an action at law then pending against the Eev. John Walsh, one of the curates who had denounced Father O'Keeffe from the altar of the parish chapel. It has been already mentioned that a former action brought against the bishop in respect of the slanderous words then spoken had resulted in a nonsuit. Father O'Keeffe had therefore instituted proceedings against the curate himself. The vicar-general accordingly wrote the following letter : ' St. Kyran's College, Dec. 10, 1870. ' EEV. SIR, From a subpoena served on me, and in other ways, I have become aware of your action at law against the Rev. John Walsh, to be tried before the Court of Queen's Bench in Dublin. It is my duty to teli you that your proceeding is a grave offence against the sacred canons. Of course I do not find fault with the eminent and impartial judges who preside in the court referred to, but in common with every Catholic I feel that respect for the discipline of your own Church should keep yoti from bringing a brother priest before any lay tribunal. Some communications already received from you leave me no grounds to hope that you will desist from your present proceeding by reason of any mere remonstrance of mine. At the same time it is my duty to employ the powers which I possess, to stop it if I can. Therefore I hereby command you to withdraw the case of the Kev. Robert 1 See p. 150. * See p. 151. 3 See p. 157. xx Introduction. O'Keeffe against the Rev. John Walsh from the Court of Queen's Bench, under pain of suspension ab officio et benejlcio to be ipso facto incurred the moment your counsel begins to state the case to the court and jury. ' Your obedient servant, ' E. M'DONALD, V.G., Diocese of Ossory.' To tliese various sentences of suspension Father O'Keeffe paid no attention, all of them being, as he alleged, informal, invalid, and wholly contrary to the rules of the canon law. His objections to the proceedings of the vicar-general were subsequently drawn up and submitted to Cardinal Cullen. They were as follows : ' I. The constitution Apostolicce 8edis 2 has not been received in this country any more than the bull In Coenou Domini. The Bulla Ccence was never received in France and some other countries of Europe, and we have the testimony of our ablest Irish divines that it was never received in this country. Our most distinguished prelates and other theolo- gians stated this before Royal and Parliamentary Commis- sioners. When the great Dr. Doyle was asked before a Parliamentary Committee on the 16th March, 1825, " whether the Catholic Clergy insist that all bulls are entitled to obedience ?" his answer was, "By no means; the Pope we consider as the executive authority of the Catholic Church, and when he issues a bull enforcing a discipline already settled by a General Council, such bull is entitled to respect: but he may issue bulls which would regard local discipline and other matters not already defined, and in these cases the bull would be treated by us in such manner as might seem good to us. Did we find that it was unreasonable, we would refuse to accept it." The other divines that were examined 1 Supra, p. 157. 2 Apottolica Scdis. This Bull or 'Constitution' -was issued by the Pope in 1869. Its object, as explained by Archbishop Leahy in his evidence (p. 508), is ' to collect in a small compass the various censures scattered up and down through the large body of canon law.' See Clauses VI. and VII. in Appendix No. VII., p. 590. Introduction. xxi gave similar testimony, and no Irish divine that I am aware of ever publicly maintained that the Bulla Ccenc& was ever received in this country. Surely all these distinguished men would on the same principles hold the same opinion regarding the binding force in this country of the new con- stitution, Apostolicce Sedis. ' II. Assuming for argument sake that the Apostolicce Sedis was in force here, Dr. M'Donald had no right to take cogni- zance of its violation unless deputed to do so, and he has never shown me any such authority to act. * III. My proceeding against the bishop was not in any way intended or calculated to impede him in the exercise of his jurisdiction, but simply to enforce a money compensation for an injury done me. IV. The documents of October, 1870, (i.e. the first and second suspensions *) handed me were not official. There was nothing to show me that they even came at all from Dr. M'Donald, except the knowledge I had of his handwriting. What would be thought of a civil judge, who on satisfying his own mind that some one had committed an offence punishable by a fine of 10(H., would immediately write to this person requiring him to pay the fine ? ' V. The proceedings against me did not commence with citation to a trial, a preliminary which all canonists look upon as essentially necessary to every judicial proceeding. * VI. There was no trial, or any offence proved. ' VII. There was no denunciation of me in any canonical form, although nothing is plainer than the words of the bull of Martin V., in the Council of Constance, forbidding my people to withdraw themselves from me, or to decline my ministrations, in the absence of a formal denunciation by the judge who had passed the sentence of censure, or some one acting with authority from him. ' VIII. The trial in the lay court only took place after a hearing in the ecclesiastical court was refused. 1 See pp. 149-151. xxii Introduction. ' IX. The superior was a judge in his own cause. The suspension was issued by Dr. M'Donald, because I had taken an action at law against Dr. Walsh. ' X. I add, on the suggestion of a learned canonist, that Liguori would consider probable the opinion of Roncaglia that the bull Apostolicce Sedis would require publication in this country. See Liguori de Legibus, lib. i. tract, ii. No. 96. ' ROBERT O'KEEFFE.' These were the points relied on by Father O'Keeffe, and which he believed justified his resistance to Dr. M'Donald. In consequence of his continued disregard of these ecclesi- astical censures, the bishop (Dr. Walsh) on the llth January, 1871, addressed the following communication to him : 'Kilkenny, llth February, 1871. ' EEV. SIR, As you have disregarded the ordinary mode of pro- cedure, I, after mature deliberation, send you hereby a suspension " ex iaformata conscientia, ab ordine, officio et beneficio." You are aware that from this suspension there is no appeal, and that should you violate it you will incur an irregularity. (Seal) + < EDWARD WALSH.' (Suspension enclosed.) ' It having been established to us that the Rev. Mr. Robert O'Keeffe, priest, is guilty of misconduct, for reasons which worthily influence our mind, and for which we are bound to give an account to God and to the Apostolic See, as we are commanded, and from an in- formed conscience, we suspend and declare him suspended from rank, office, and benefice, and order the decree of suspension to be made known to him. ' Given at Kilkenny, llth January, 1871. 'EDWARD (Bishop). ' THOMAS KILBY (Actuary).' No attention whatever was paid to this suspension by Father O'Keeffe. He continued still to officiate in the chapel, and to discharge all the functions of a parish priest. As might be expected, the district was greatly disturbed. The parish- 1 Sec p. 168. Introduction. xxiii ioners were divided in tbeir allegiance between tlie priest on the one side, and the curates who took part with the bishop, and who were at no pains to conceal their hostility to their immediate superior, on the other. It should be mentioned that in the Roman Catholic Church the bishop has the right of appointing curates to all the parishes of his diocese without reference to the parish priest, who may or may not be consulted in the selection. In Callan at this time there were two curates who were retained in their position in spite of the repeated remonstrances of Father O'Keeffe. He had sued both in a court of law for libel, and in both cases had recovered damages. It was hardly, there- fore, to be expected that the relations between them could be of a friendly character, or likely to promote the spiritual welfare of the parish. The report of these proceedings had now reached Rome, and the Papal authorities took prompt measures for their ter- mination. On the 31st May, 1871, a decree was issued by the Sacred Congregation de Propaganda fide, authorizing Cardinal Cullen, as delegate of the Apostolic See, to inquire into the scandals that had arisen in the parish of Callan, and to adopt such means as he might think necessary to suppress them. 1 This ordinance was received by Cardinal Cullen about the middle of June, 1871, and in July he wrote to Father O'Keeffe, deploring the condition of the parish of Callan, which was notorious, and stating that * being now in a posi- tion to restore peace in that locality, he was determined to make every effort to obtain so desirable a result.' 2 This letter was the beginning of a correspondence in which Father O'Keeffe reiterated his complaints of ill-treatment by his bishop, while the Cardinal on his part declared that all the troubles had arisen from inexcusable resistance to episcopal authority, and insisting with great earnestness on the enor- mity of the offence of which Father O'Keeffe had been guilty ' in dragging ecclesiastics, and especially bishops, before lay 1 See p. 345. * See p. 163. xxiv Introduction. tribunals and there charging them with criminal offences ' besought him to avoid giving rise to further scandal, and at once to make full and absolute submission to his bishop. 1 It seemed as if the Cardinal's efforts were about to be crowned with success. Father O'Keeffe withdrew from legal proceedings which he had instituted against the vicar- general and one of the curates, and received a letter from the Cardinal, expressing gratification at this result, and exhorting him ' to continue in the path on which he had entered until he should be fully reconciled to his bishop and to the Church.' 2 Unfortunately, however, this prospect of peace was not destined to be realised. Early in the month of August, Father O'Keeffe felt him self obliged to complain to the vicar- geiieral and to the Cardinal of the conduct of one of the curates, whom he accused of using violent language against him in the streets of Callan. 3 No notice appears to have been taken of this complaint, except by a short letter of acknowledgment in which the vicar-general stated that he had written to the curate for an explanation of his alleged misconduct. 4 Dr. Walsh, the bishop of the diocese, was now completely prostrated by illness, and it was thought desirable that a co- adjutor-bishop should be appointed. According to the usage of the Roman Catholic Church, as explained in his evidence by Cardinal Cullen, such an appointment is made by the Pope himself, to whom three names are submitted by the beiieficed clergy of the diocese in question, including the chapter of the cathedral. Curiously enough, the two most prominent candi- dates on this occasion were the Rev. Dr. Moran, nephew and secretary to the Cardinal, and the Rev. Matthew Keeffe, a cousin of the parish priest of Callan. The meeting of the clergy for the purpose of selecting the three persons to be proposed for the office was fixed for the 19th September, 1871, and the Cardinal was invited by the bishop to preside. Father O'Keeffe, notwithstanding his alleged suspension, duly 1 See p. 160. 2 Sec p. 174. * See p. 175. 4 .See p. 176. Introduction. xxv received a summons to attend. 1 On the 8th of the month the Cardinal wrote a letter stating his intention to be present, and warning Father O'Keeffe to be prepared in case any question should be raised with regard to the ecclesiastical censures under which he lay. He also informed him now, for the first time, that he had been deputed by the Pope to put an end to the scandals existing in the parish of Callan, and that he had determined to apply himself at once to the task. 2 Father O'Keeffe replied, that if any objection should be taken to his vote at the meeting he would be ready to meet it. On the day appointed, the meeting of the clergy took place under the presidency of the Cardinal. 3 The names of the proposed candidates were submitted to the assembly, and the list of the persons presumably entitled to vote was read aloud by the Cardinal's secretary. When Father O'Keeffe's name was called, the Cardinal inquired if that was the priest who was under censure. The vicar-general replied in the affirma- tive. Thereupon Father O'Keeffe stood up and said he was prepared to satisfy his Eminence that he had not been canoni- cally suspended, and that therefore he could not be regarded as under censure. The Cardinal declined to enter upon the question then, but stated that prima facie the censures were valid, and that he could not receive the vote. He added, however, that Father O'Keeffe might forward his vote to Rome, sealed up, pending the decision of the matter. Father O'Keeffe at once retired from the meeting, and the Cardinal's nephew was elected coadjutor-bishop by a majority of one. Iii the correspondence that took place subsequently with the Cardinal, Father O'Keeffe complained that he had been unjustly treated on this occasion. He had been warned, he said, to be ready to prove his title to vote, and accordingly had fully prepared himself to do so, and yet his vote had been rejected without any opportunity having been afforded him of establishing his right. On the 21st October the Car- 1 See p. 244. " See p. 176. * See pp. 179 ami 353. zxvi Introduction. dinal wrote the following letter, which speedily brought the dispute to a crisis : ' Dublin, 21st October, 1871. ' MY DEAR FATHER O'KEEFFE, As it is necessary to settle the affairs of Callan, I have determined to send you a regular ecclesiastical citation to appear before me on Friday, 27th October, at 11 o'clock, at my house in Eccles Street. I will send the citation to you on Monday next, but I mention the day so that you may let me know if it be in- convenient before Monday afternoon. ' I will examine whether you have incurred suspension or excom- munication, either ab homine, or a lege or canone, whether you have in- curred irregularity, and whether any or what penalty is to be inflicted on you for having neglected those censures or ecclesiastical penalties, if you have done so. ' Other matters connected with the unhappy state of Callan, so well described in your letters, must also be examined. 4 Wishing you every happiness, I remain, * Your faithful servant, + < PAUL CARDINAL CULLEN.' Father O'Keeffe replied by a letter 2 in which he stated that he would be happy to attend his Eminence 011 the day mentioned, and he enclosed at the same time a draft of the nine points above set out, upon which he intended to rely in defence of his conduct. In consequence of this ready acquiescence in the course proposed by the Cardinal, the latter subsequently wrote to say that he did not consider it necessary to send the formal citation of which he had spoken in his note of the 21st, and that he would expect Father O'Keeffe, according to his engagement. 3 At the appointed time Father O'Keeffe presented him- self before the Cardinal. No other person was there except Dr. Forde, one of the vicars -general. He unfortunately died shortly after, so that the only evidence obtainable as to what took place on this critical occasion is that of the judge and ' See p. 183. * Seep. 184. * See p. 185. Introduction. xxvii of the accused, and their recollection of the proceedings is unhappily not the same. The interview lasted for some hours. 1 The matters at issue were discussed at length, but no final arrangement satisfactory to both parties could be arrived at. A com- promise was at last suggested, as to the terms of which Cardinal Cullen and Father O'Keeffe are not agreed. Ac- cording to the account given by the latter, the whole case was to be referred to Koine for decision, and in the mean- time the offending curates were to be dismissed, and the parish of Callan placed under the care of missionaries selected for the purpose. According to the Cardinal, there was one other point which he regarded as essential, viz., that Father O'Keeffe should retire from Callan pending the settle- ment of the question. This, Father O'Keeffe declares was never mentioned, and if suggested would have been in- dignantly rejected by him. He admits that a ' retreat ' was proposed, to which he at once consented, but he positively denies that he ever acceded to any arrangement which would have the effect of disconnecting him, even temporarily, from his parish. Whatever were the terms of the agreement then con- cluded, Father O'Keeffe was requested to put them into writing, in order that he might read them to his congrega- tion on his return to Callan. The document so prepared was to be submitted to Cardinal Cullen on the following day. Early next morning Father O'Keeffe waited upon his Eminence, and presented the paper which he had drawn up. 2 The following is his account of the interview that took place. * The Cardinal read the draft: "Oh," said he, "this will not do at all. You have put nothing into this paper about your leaving the parish as well as the curates." " What is the meaning of that, my Lord Cardinal ? " said I. " Who would be there to look after the missionaries or look after the affiiirs of the parish." " Oh," he said, " we will take caie 1 See pp. 183 and 3o9. 2 See p. 192. xxviii Introduction. of that." I just put my hand to my hat ; I took my stick in my hand, said " Good morning, my Lord Cardinal," and walked away.' A few days afterwards the Cardinal wrote to Father O'Keeffe again, requiring his attendance in order that they * might conclude the business which they had commenced.' 1 Father O'Keeffe, however, declined to appear, stating that his defence was already in the Cardinal's hands, and awaited his lordship's decision. 2 A second invitation 3 met with a similar response, and on the 13th November, 1871, the sen- tence of suspension 4 was issued by the Cardinal. On the 3rd December, Father O'Keeffe wrote the following letter : 'Callan, Dec. 3, 1871. ' MT LORD CARDINAL, A document was read in the Friary Chapel here on last Sunday, which pretended to be a sentence of suspension passed on me by your Eminence. You have thus for the sixth time passed censure on me behind my back, without any trial or citation to me, and without alleging any crime, as far as I have been able to learn, except that I went to law with Dr. Walsh. I think in the circum- stances no one can reasonably expect me to make an apology for going to law with your Eminence. I proposed before to leave the whole of my case to the professors of canon law and theology at Maynooth, and I propose now to leave it to the saying of the three other archbishops in Ireland. I made every effort to keep all the former cases out of court, and in virtue of my love for peace and religion, I make this final effort to keep the present one out of court also. No doubt another half- dozen suspensions will be flaunted before my face ; but, my Lord Cardinal, I tell you plainly that until I degrade myself first by the commission of some crime, I laugh at the folly of the attempts of others to degrade me. ' I have the honour to remain, ' Your Eminence's most humble servant, 6Kep. Rev. Robert O'Keeffe v. Cardinal Oullen. 9 admitted, for if this defence be a justification it must justify Argument in the sense put upon the libel complained of, or if it be a *j or . ^ defence of privilege it must show such a privilege as covers the innuendo : M'Manus v. M'Enroe. l Carton (with him Armstrong, Serjt., and O'Hagan, Q.C.) The general rule applicable to such cases as the present is this that Churches not established are founded on con- for the tract ; that their authority is founded on contract ; that the Defendant - Court will not assume them to have authority till it is proved, and that when it is proved as part of the contract the Court will generally sustain it. 2 In the cases which frequently come before the Court of Chancery with respect to Dissent- ing ministers, the Court only examines the rules of the Church in question, and acts upon them ; and where a Church body has set up a forum for the purpose of trying disputes within the body, the Civil Court will not interfere if that forum has heard the case and pronounced judgment in accordance with the rules of the Church and with justice, and will not relieve a defendant from the consequences of his own submission to the domestic tribunal : Bishop of Natal v. Gladstone. 3 There is always a strong disinclination to interfere with a domestic forum : Hopkinson v. Exeter. 4 Here the plaintiff voluntarily came into the Church and sub- mitted to the rule forbidding one ecclesiastic to go to law with another for words spoken of him in respect of his character as a priest. This rule is not to be carried further than as stated on the pleadings. It is not a general prohibi- tion to go into a court of law. It deals only with a par- ticular case. The status of a minister of a non-established Church is denned in Cooper v. Gordon.* The case of Innes v. Wylie 6 shows that a voluntary society may make rules for its internal government; see also Dr. Warren's Case. 1 The 1 1 I. 0. L. 332. 2 Law of Creeds in Scotland. By A. T. Innes, 263. 8 L. 3 Eq. I. The King v. Hart, 1 W. Bl. 386. 4 L. E. 5 Eq. 63. s L. K. 8 Eq. 249. 1 Car. & K. 257. 7 Compendium of the Laws of Wesleyan Methodism. By E. Grindrod, Ap. 371. 10 Court of Queen's Bench (Ireland). Argument only limitation is, that these rules must be consonant with Defendant. na ^ ura l justice. They may make rules respecting the admis- sion or expulsion of members. The present case is analogous. Here a suspension was pronounced by a person endowed with authority by the rules of the Church. Suppose a club make a rule that cases of disputes among the members shall be referred to a committee, and that a member who does not abide by the decision of that committee shall be expelled, that rule could not be pleaded, but a member violating it could be expelled. It is said that a man cannot contract himself out of the law. That is too wide a proposition. A man may agree to arbitration : Dimsdale v. Robertson ; 1 Scott v. Corporation of Liverpool; 2 Thomas v. Fredericks. 3 This rule is not against public policy. It tends to pre- vent scandal, and thus to preserve public morality. The case of Richardson v. Mellish 4 shows how carefully the Courts will consider this question. The cases cited are of no force here. In them the rule was pleaded as a defence ; here it is not pleaded. Similar conditions to that imposed by this rule are recognized and enforced by law ; where, for instance, legacies are left on condition that the will shall not be disputed. Such a condition is no answer at law ; but, at the same time, a legatee who violated it would be deprived of his legacy: Cook v. Turner. 6 So in this case, the rule against impleading an ecclesiastic could not have been pleaded as a bar to the action brought by the plaintiff; but the Church might enforce the rule and exclude him from its membership. [WHITESIDE, C. J. If there was a rule that an ecclesiastic should not prosecute another for a crime, would that be good ?] Once a crime is committed the State must interfere. [WHITESIDE, C. J. If the rule forbade ecclesiastics to go to law at all, could it be made the ground of depriving a man of some temporal benefit?] The rule here does not oust the Court's jurisdiction. It only expels a member from a society. A similar regulation is to be found in almost every non-established Church : among the Wesleyan Methodists; 6 in the Free Church of Scotland; the Cardross 1 2 Jon. & Lat. 68. * 3 De G. and J. 334. 8 10 Q. B. 775 4 2 Bing. 229. 4 15 M. & W. 727 ; 8. C. H Sim. 493. Compendium of the Laws of Wesleyan Methodism. By E. Grindrod, p. 30. Rev. Robert O'Keeffe v. Cardinal Cullen. 11 Case-, 1 Duribar v. Skinner;* among the Society of Friends. Argument In the Scotch cases the person appealing to a court of law D g^ |f e t was suspended bj the Spiritual Court without hearing him. In this case it is admitted that the plaintiff was summoned, but refused to attend. With respect to this, the first branch of the argument, the demurrer should be overruled, on the ground that the plaintiff had agreed to be bound by the rules of the Church ; that by those rules, as admitted on the pleadings, the Pope had power to issue the rescript, and that by virtue of the rescript the Cardinal held a court, and issued the sentence complained of, because of the violation by the plaintiff of one of the rules which he had contracted to observe, which rule was perfectly legal, and one which the courts of law will recognize. The next point is with respect to the legality of the papal rescript, upon which the Cardinal's jurisdiction was founded. We do not say the rescript gave the Cardinal authority per se. It was the compact entered into by the plaintiff as a priest that conferred this authority. The rescript is merely the machinery by which the contract is enforced. The mere fact that the Pope was the person who under the contract had power to issue the rescript does not affect the matter at all. It is not as Pope he acts, but as the person named in the contract. The Emperor of Germany was recently appointed by Government to decide a question between England and America. His decision was recognized and enforced, although it was a decision of a foreign power. The statute of 2nd Elizabeth, c. 1 (Irish), which has been referred to, was a continuation of previous statutes passed for a particular purpose, viz., the statutes of Pro- visors. These statutes, however, applied only to a State Church, and referred to its revenues, and were intended to prevent interference with the appointment to benefices in that Church. 3 In the time of Henry VIII. and Elizabeth, it is true, they had a twofold object, viz., to protect the revenues of the Church, and also to uphold and secure the supremacy of the Crown. With respect to the statute of Elizabeth, it is repealed by 9 & 10 Viet. c. 59. The 6th 1 Law of Creeds in Scotland. By A T. Innes, pp. 255, 284. 2 Ibid. By A. T. Innes, p. 252. 3 Reeves' History of the Law, vol. ii. p. 381. 1 2 Court of Queen's Bench (Ireland) . Argument section defines the sort of authority which it is intended sna U n fc be exercised by the spiritual power, but by the Crown. That statute had reference to a State Church ; but it has been practically repealed by later statutes 10 Geo. 4, c. 7 ; 29 Viet. c. 18 ; 30 & 31 Viet. c. 75 ; 32 & 33 Viet. c. 42. As to the point of pleading which has been raised, viz., that we do not show any matter of fact to justify the innu- endo ; that the plaintiff had acted in the manner stated in the innuendo ; that therefore the innuendo is admitted ; we submit that is not a ground of demurrer, but is rather a matter for the jury when considering the question of malice. We do not, it is true, show facts which rendered the plaintiff unfit to hold his office ; but we show facts which create a privilege to publish the words complained of. The privilege flows from the duty imposed upon the defendant by the laws of the Church : Whitely v. Adams ; * Halloran v. Thompson. 2 We submit first, that the rule of the Roman Catholic Church upon which the defendant acted was legal ; second, that the statutes by which it is pretended that the rescript was illegal do not apply to a voluntary Church, but only to a State Church, and that they are repealed by subsequent legislation ; third, that the question raised upon the pleading is not for the Court, but for the jury. BAKBY, J. : This is an action of libel, in which the Rev. Robert O'Keeffe is the plaintiff, and the Cardinal Archbishop of Dublin is the defendant. The writ of summons and plaint contains four counts. The first three counts set forth (as the libel complained of) a sentence or judgment pronounced against the plaintiff by the defendant, and purporting to suspend the plaintiff from his office of parish priest of Call an, and the fourth count alleges as the cause of action a certain interdict promulgated against or in respect of the parish chapel of Callan by the defendant, in connection with or as consequent upon the sentence of suspension mentioned in the three preceding counts. The sentence or judgment of suspen- 1 15 C. B. N. S. 392. 14 I. C. L. K. 334. R&v. Edb&rt O'Keeffe v. Cardinal Cull&n. 13 sion, as translated into English in the three first counts, is as Mr. follows: [The learned judge read them as above set out.] Justice The innuendos attached to the statement of the alleged libel in the first count are as follows : ( Meaning thereby that the plaintiff had been guilty of such conduct and had acted in such a manner as to render himself unfitted to discharge the duties of his said office of parish priest of Callan, or to administer the sacraments of the Roman Catholic Church, or to hear the confessions of such of the parishioners of the said parish as might come to him for that purpose,' and * meaning thereby that the plaintiff was a person who was not fit to fill the office of parish priest in the Roman Catholic Church, or to officiate as such, and had so misconducted himself as to render himself unfitted for the said office, and that he ought to be deprived of the same.' The second count uses the innuendo, ' meaning thereby that the plaintiff had been legally suspended from and deprived of his said office of parish priest.' The third count set out the sentence of suspension as the libel, without any innuendo. The three counts alleged by way of averment of special damage, that by reason of the publication of the libel the plaintiff had been dismissed from his office of chaplain to the Callan Union Workhouse by the Poor Law Commissioners. The interdict, as translated into English, in the fourth count and the innuendo attached to that alleged libel are as follows: [The learned Judge read the fourth count as above set out.] The defences to these four counts and the pleadings subsequent to the defences are as follows : [The learned Judge stated the defences, replications, rejoinder, and demurrers.] Such being the state of the record as it is before us on these demurrers, it is obvious that the action is brought for the purpose of questioning the legality or justifiability of the sentence of suspension pro- nounced by the defendant against the plaintiff; and for the determination of that controversy the first topic submitted for our consideration was, as might be expected, the status (as it is called), in this country and under our laws, of the Roman Catholic Church. Upon this point it was agreed that the status of the Roman Catholic Church in this country status of is the same as that of the Church of England in a colony ^ a e t j^ a where it is not by law established of the non-established Church. 14 Court of Queen's Bench (Ireland). Mr Church in Scotland, and of the Wesleyan, and other Dissent- Justice ing Churches in the United Kingdom namely, the status of arry ' a voluntary association, the members of which subscribe or assent to certain rules and regulations, and bind themselves to each other to conform to certain laws and principles, the obligation to such conformity and observance resting wholly in the mutual contract of the members, enforcible only as matter of contract by the ordinary tribunals of the land, when brought within their cognizance, and not enforcible under any independent coercive jurisdiction. This status of such a Church or religious community is clearly established by authorities cited, to one or two of which I shall refer. In the case of Long v. The Bishop of Capetown, 1 the appellant, a clergyman of the Church of England, and the incumbent and minister of St. Peter's, Mowbray, in the colony of the Cape of Good Hope, had been suspended by his bishop from his ministry and deprived of his emoluments as incumbent. To test the legality of this suspension and deprivation he instituted in the Supreme Court a suit which ultimately came on appeal before the Privy Council in England. For the purpose of determining the question at issue, it became necessary to consider and determine the status in the colony of the Church of England, which it is admitted in the argument here is the same condition as that possessed by the Roman Catholic Church in this country, and the law on this subject was thus laid down by Lord Kingsdowu. His Lordship says at p. 461 : 'The Church of England, in places where there is no Church estab- lished by law, is in the same situation with any other religious body, in no better, but in no worse position ; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body, which will be binding on those who expressly or by implication have aasented to them. ' It may be further laid down that where any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a tribunal to detennine whether the rules of the association have been violated by any of its members or not, and what shall be the consequence of such violation, the decision of such tribu- nal will be binding, when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and if not, has proceeded in a manner consonant with the principles of justice. 1 iMoo. P. C. C. . S.)4H. Rev. Robert O'Keeffe v. Cardinal Oullen. 15 1 In such cases the tribunals so constituted are not in any sense M>. Courts; they derive no authority from the Crown ; they have no power Justice of their own to enforce their sentences ; they must apply for that pur- arr 7- pose to the Courts established by law, and such Courts will give effect to their decision, as they give effect to the decisions of arbitrators, whose jurisdiction rests entirely upon the agreement of the parties. ' These are the principles upon which the Courts in this country have always acted in the disputes which have arisen between members of the same religious body, not being members of the Church of England. They were laid down most distinctly, and acted upon by Vice- Chancellor Shad well and Lord Lyndhurst in the Case of Dr. Warren, so much relied on at the Bar, and the report of which in Mr. Grindrod's book seems to bear every mark of accuracy. ' To these principles, which are founded in good sense and justice, and established by the highest authority, we desire strictly to adhere ; and we proceed to consider how far the facts of this case bring Mr. Long within their operation. ' To what extent, then, did Mr. Long, by the acts to which we have referred, subject himself to the authority of the bishop in temporal mat- ters ? With the bishop's authority in spiritual affairs, or Mr. Long's obligations in foro conscientice we have not to deal.' And at p. 465 Lord Kingsdown proceeds : ' It was strongly pressed, both before us and in the Court below, that, supposing these sentences to be erroneous, Mr. Long had no remedy against them, except by appeal to the Archbishop of Canterbury under the provisions of the Letters Patent. What authority his Grace might possess under the Letters Patent or otherwise, to entertain such an appeal, if it had been presented, it is unnecessary, and we think it is inexpedient to discuss. It is sufficient to say, no such appeal has been presented, and that the suit in which this appeal is brought respects a temporal right, in which the appellant alleges that he has been injured. It calls for a decision as to the right of property, and in- volves the question, whether Mr. Long has ceased by law to be what in England is termed cestui que trust of funds of which the bishop is trustee. Whatever else Mr. Long may by his conduct have done, we cannot hold that he has precluded himself from exercising the power which, under similar circumstances, he would have possessed in England, of resorting to a Civil Court for the restitution of civil rights, and of thereby giving to such Courts jurisdiction to determine questions of an ecclesiastical character essential to their decision. Indeed, in this case the appellant and respondent have alike found it necessary to call upon the Civil Court to determine the right of possession of the church of Mowbray.' The same subject came under the consideration of Lord as Master of the Rolls in England, in the case 16 Cowrt of Queens Bench (Ireland). Mr. of The Bishop of Natal v. Gladstone. 1 That was a suit in- justice stituted by Dr. Colenso, the Bishop of Natal, to compel the ' trustees of ' The Colonial Bishoprics' Fund ' to pay him the income of the endowment of his see, which they had refused to pay, on the ground that a decision of the Privy Council had declared that the Letters Patent creating him bishop had failed to confer on him any coercive jurisdiction in the colony, which had no independent Legislature. Lord Romttly lays down the law as to voluntary Churches. He says at p. 35 : ' In order satisfactorily to explain my meaning in this matter, it is necessary to point out what I consider to be the real position of the Church of England in these colonies. It is declared in the judgment of the Judicial Committee that the Church of England in the colonies, which have an established Legislature, and no Church established by law, is to be regarded in the light of a voluntary association, "in the same situation with any other religious body, in no better, but in no worse position ; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body, which will be binding on those who, expressly or by implication, have assented to them." ' And at p. 36, he proceeds : ' The rule by which the Courts are bound is this : If any number of persons, either in England or in any of its dependencies, associate themselves together, professing to follow a particular religion, not being the religion of the State, the Court must, when applied to, inquire into what the doctrine and discipline of that religion are, and must then enforce obedience to them accordingly. Thus, if they be Presbyterians, or Independents, or Wesleyans, or Baptists, or the like, the Court ascertains, as a matter of fact, upon proper evidence, what the doctrines, ordinances, and rules are by which the particular sect of religionists is bound, and enforces obedience to them accordingly. It is needless to cite authorities to establish this proposition. The books abound with decisions on the subject, all of the same character, many of which have been cited and referred to in the case of Long v. Bishop of Cape- town, and in the present case, and are familiar to every one conversant with this subject. 'Thus, to apply that principle to the present case in illustration of the observations I am now making, and explanatory of the passage I have read from the case of Long v. Bishop of Capetown, if a class of persons in one of the dependencies of the English Crown, having an 1 1 L. R. 3 Eq. 1. Rev. Robert O'Keeffe v. Cardinal Cullen. 17 established Legislature, should found a Church, calling themselves Mr. members of the Church of England, they would be members of the -Justice Church of England, they would be bound by its doctrines, its ordinances, l its rules, and its discipline, and obedience to them would be enforced by the civil tribunals of the colony over such persons ; but if a class of persons should, in any colony similarly circumstanced, call themselves by any other name, such as for instance the Church of South Africa, then the Court would have to inquire, as a matter of fact, upon proper evidence, what the doctrines, ordinances, and discipline of that Church were ; and when these were made plain, obedience to them would be enforced against all the members of that Church.' And at p. 49, Lord Romilly says : ' The members of the Church in South Africa may create an ecclesiastical tribunal to try ecclesiastical matters between themselves, and may agree that the decisions of such a tribunal shall be final. Whatever may be their nature or effect, upon this being proved, the civil tribunal would enforce such decisions against all persons who had agreed to be members of such an association, that is, against all the persons who had agreed to be bound by these decisions, and it would do so without inquiring into the propriety of such decisions.' The same principle respecting non-established Churches is to be found laid down by Scotch Judges in cases collected in a very interesting work, ' Innes on Creeds ; ' but I do not deem it necessary to refer in detail to these cases, because the doctrine is so clearly established in the English cases from which I have read. It will be found laid down in the Powers of Scotch cases that the sentences of these voluntary ecclesias- tribunals tical tribunals are examinable, and will be examined, by voluntary the civil courts ; and this liability to examination, or, if I Churches, may call it so, examinability of these sentences, has been over and over again referred to in the course of the argument of this case as a matter which, if once established, was con- clusive on this demurrer against the defendant. I entirely agree that the sentences of these voluntary tribunals are ex- aminable, but such examination can only be had according to the form and with the consequences belonging to our ordinary tribunals and their modes of suit and defence. In Scotland, there is a form of proceeding termed the ' reduc- tion of sentence,' in which I believe the sentence or judg- ment complained of is subjected to immediate and direct review, and may be annulled or declared void, although even c 18 Court of Queen's Bench (Ireland). Mr. in Scotland, as would appear from the remarks of one dis- arry 8 tinguished judge, reported in Mr. Innes' book, the sentence of such a voluntary or consensual tribunal would not in the proper sense of the term be reviewed, but would merely be deprived of any validity as an obstacle to the prosecution of civil rights and interests. But however this may be in Scot- land, the sentence of a voluntary ecclesiastical tribunal cannot be thus directly dealt with in our Courts ; such a sentence can only be examined as a matter collateral or necessarily and materially incidental to some other ground of suit cognizable in our Courts, as for instance in a suit by the person deprived for recovery or restitution of temporal rights attached to the ecclesiastical office, as in the instances of the Rev. Mr. Long and the Bishop of Natal, in the cases referred to ; or the question of the legality of such sentence may be raised, and, subject to certain limitations and con- ditions, determined, in an action of libel. I say subject to certain limitations and conditions, because it was perse- veringly taken for granted by the learned counsel for the plaintiff here, that if once it could be shown that the sentence of suspension was for any purpose or in any manner illegal, invalid, or inoperative, it followed as a matter of course and inevitable necessity that this action of libel was sustained, a proposition from which I must express my dissent. From a consciousness of this difficulty it was suggested in the progress of the argument, that because the writ in this case contains, by way of averment of special damage, a statement that the plaintiff was by reason of this judgment or sentence deprived by the Poor Law Com- missioners of a temporal office, therefore this may be regarded as a suit to establish or assert a temporal right. But the able counsel did not seriously press this argument, being too learned and too experienced not to feel that such an argu- ment was wholly untenable, and that an averment of special damage cannot in such a manner alter the nature, the character, or essential attributes of an action of libel. Such then, as established by the authorities, to some of which I have referred, being the status in this country of the Roman Catholic Church in respect of its internal laws, its discipline, and its tribunals, I shall now proceed to consider, as briefly as possible, the specific questions raised for our Rev. Robert O'Keeffe v. Cardinal Cullen. 19 determination on these demurrers and although it may seem Mr. an unnecessary remark, I deem it right to say that I propose to decide these questions upon the only materials legitimate for my consideration ; namely, the facts stated on the record, and, for the purposes of this argument and our decision, admitted to be true. I say this, because during the progress of the discussion reference was made more than once to extraneous matters or allegations of fact, and we were asked to draw inferences and arrive at conclusions based upon these extrinsic and foreign materials. Of these matters I have no knowledge personal or judicial, and I entirely disclaim any notice of them, as they were stated or suggested during the argument. I form my judgment on this case, as I am bound to do, solely and entirely upon the statements on the record, construed by the ordinary rules of legal construction. For convenience sake, I shall deal first with the second count, the eleventh defence, the replication and rejoinder, because on that section of the pleadings the chief points of con- troversy between the parties are most broadly and simply developed. The second count, it will be remembered, attaches to the sentence of suspension (being the alleged libel) this innuendo, * meaning thereby that the plaintiff had been legally suspended from and deprived of his said office of parish priest.' Now if I were at liberty in con- Nature sidering this count to put my own construction upon the sentence sentence of suspension as therein set forth, I should say that of suspen- . . T , , , f . . sion corn- it merely purports to pronounce a sentence of suspension in plained of. accordance with the rules of the Roman Catholic Church, by which the plaintiff (as it averred, and for the purposes of the demurrer was admitted) agreed to be bound ; and such being the construction of the alleged libel, the same meaning might perhaps be ascribed to the words of the innuendo ; but the plaintiff has by his counsel construed these words as mean- ing that the alleged libel asserted and conveyed that the sentence of suspension was such as would be valid and bind- ing according to the law of this country, and enforced by the ordinary tribunals, if the ecclesiastical superior were (as described by Lord Kingsdown in Mr. Long's Case, or by Lord Romilly in the case of The Bishop of Natal v. Gladstone) to appeal to such ordinary Court to give effect to the judgment of the Court of consensual jurisdiction. This interpretation c 2 20 Court of Queen's Bench (Ireland). Mr. of the words of the innuendo has been accepted by the "Barry 6 defendant, who has by his counsel avowed that he has in the eleventh defence justified the libel in that sense, and we are therefore, I think, called upon to decide the issue of law so knit between the parties ; and that issue is, whether using the words in the sense so agreed upon between the parties the plaintiff was ' legally ' suspended ? The plaintiff con- tends that this sentence of suspension is, on the facts stated on the record, illegal, invalid, and such as no Court of Law or Equity would lend its aid to enforce, and in support of this contention he relies on two grounds ; the first ground does not appear on the defence, but on the replication and re- joinder combined. Both these latter pleadings are very vaguely framed, neither of them stating the terms or precise tenor of the rule or ordinance the violation of which is alleged to be the ground of the suspension. It was, how- ever, admitted on the argument that the replication and re- joinder taken together amount to this, that one of the rules or ordinances of the Church which the plaintiff bound him- Eule of self to obey was a rule that no ecclesiastic should implead Catholic*" 1 an t ner ecclesiastic before a civil tribunal for slander Church spoken of the complainant in his character of a priest ; and be violated ^ e plaintiff contends that such rule is illegal, and so taints by with illegality the sentence based upon the violation of such 11 ' rule as to render that sentence illegal, and that, therefore, the plaintiff was not ' legally ' suspended. This branch of the case was ably and elaborately argued. The discussion was somewhat discursive, and amongst other matters it was suggested by the plaintiff's counsel that the proposition in- volved in the defendant's contention was, that ecclesiastics of the Roman Catholic Church were exempt from the jurisdic- tion of the ordinary tribunals of the land. The advocates of our Bar are not, and I hope never will be, deficient in courage, and sometimes, especially in cases involving the disturbing elements of religious and political controversy, we hear very startling assertions, but I do not believe that in the whole range of the Irish Bar a sane man could be pro- cured who would argue before this Court in support of such a proposition. I shall not occupy time in laying down such truisms as that no man is above the law that, layman or cleric, every man is subject to the law and amenable to the Rev. Eobert O'Keeffe v. Cardinal Gullen. 21 Queen's Courts, nor shall I pause to recall to mind how very Mr. many years it is since, in Catholic times too, such pretensions Barry 6 of ecclesiastics were rejected by our laws. Suffice it to say, . that no such preposterous case is made on the defendant's part, either in pleading or argument. The main, if not the Argument only, ground upon which it was contended by the plaintiff's j^Ljdfty counsel that the rule in question was illegal and invalid was, of Kule. that it is a breach of the well-known maxim that private parties cannot, by contract or agreement, oust the jurisdic- tion of the Queen's Courts. That such a maxim exists can- not be doubted, and I am of opinion that this rule of the Church falls within it, but I do not agree that the maxim of law referred to has the scope or operation attributed to it by the plaintiff's counsel. The authorities, and the only authorities upon which they relied in support of their argument, and which they contended to be conclusive in their favour, are the well-known cases upon contracts containing a stipulation that differences arising between the parties are not to be decided by suit at law or in equity, but referred to the forum domesticum of an arbitration. It is perfectly true that in these cases the terms * illegal ' and ' unlawful ' are sometimes applied by Judges to designate such a stipulation ; but in my opinion it is clear that these authorities establish no more than this, that such contracts are unavailing to oust Nature of the jurisdiction of the ordinary tribunals, or, in other words, n^to^e that a stipulation not to sue cannot be pleaded in bar to an at law. action brought in violation of the contract, but that such agreement or stipulation not to sue is not ' illegal ' in any more extended sense of the term. The counsel for the plaintiff cited Kill v. Hollister. 1 That was an action on a policy of insurance, which contained a clause that any loss in dispute should be referred to arbitration, and the Court held that if a reference were depending or determined, it might have been a bar, but that the mere agreement to refer could not oust the jurisdiction of the Court. It seems to me an authority rather against than for the plaintiff here, for the Court suggests (though the contrary is since decided) that the pendency of a reference to arbitration might have been a bar ; and it is difficult to understand how that could be if the agreement to refer was ' illegal ' in the sense here con- 1 1 Wils. 129. 22 Court of Queen's Bench (Ireland). Mr. tended for by the plaintiff. We were next referred to Barry. Thompson v. ChamocJc. 1 That was an action of covenant, and the defendant pleaded that in the deed there was a covenant that differences should be settled by arbitration, and the plea was, of course, held bad, Lord Kenyon saying, * It is not necessary now to say how this point ought to be deter- mined if it were res Integra, it having been decided again and again that an agreement to refer all matters in difference to arbitration is not sufficient to oust the Courts of Law or Equity of their jurisdiction ; ' and nobody here contends that it is. But the case relied upon by the plaintiff's counsel as absolutely conclusive, being a decision, as they contended, upon the very point by the Court of final resort, was Scott v. Avery.* That was an insurance case. The policies con- tained a condition that if a difference arose it was to be referred to arbitration, f provided always that no insurer who refused to accept the amount settled by the committee should be entitled to maintain any action at law or suit in equity 011 his policy until the matter had been decided by the arbitra- tors, and then only for such sum as the arbitrators should award.' To an action on the policies this condition was pleaded in bar. The Court of Exchequer held the plea bad. The Court of Error held it good. There was an appeal to the Lords, and the judges summoned gave their opinions seriatim, and from these opinions and the judgments of the Lords I shall extract such passages as bear upon the point now under consideration. Mr. Justice Crowder says, at p. 823 : ' In this view the doctrine referred to by plaintiff's counsel, that no agreement of parties can oust the Courts of Law of jurisdiction is inapplic- able to the present case ; for in all the cases in which that doctrine has been applied there has been a clear cause of action existing upon the covenant or agreement, independently of the particular covenant or agreement to refer. Such were the cases of Kill v. Hollister, and Thompson v. Charnock, relied upon by the plaintiff.' Mr. Justice Wightrnan, at p. 831, is thus reported : ' The only question in this case is, whether the effect of the 25th rule of the association, referred to in the policy, is to withdraw the cognizance of the whole cause of action from the Courts of Law, and to 1 8T. R. 139. 5H. L. C. 811. Rev. Robert O'Keeffe v. Cardinal Gullen. 23 oust them of their jurisdiction, or only to impose upon the assurer a Mr. condition preliminary to his right to sue for a loss, that the amount of v^ 8 the loss shall be ascertained by arbitration. It may be that if the effect . of the 25th rule would be to oust the Courts of Law of their jurisdiction, and to oblige the assurer to submit his entire right to recover to the de- termination of arbitrators, the pleas relying upon that rule Avould be bad, and the plaintiff in error would be entitled to judgment.' Mr. Justice Crompton says (p. 832) : ' On the argument of this case the counsel for the defendant in error, admitting the general rule that an agreement to refer and not to sue upon a cause of action cannot be pleaded as a bar to an action, con- tended that the present case did not fall within that rule on two grounds I think, however, that the case falls within the rule of law which will not allow a stipulation in a contract forbidding the party to have recourse to a court of law to prevail as a bar to an action on the contract. Here the effect of the provision is, that there shall be no action on the policy in which the matters really in dispute can be decided, but that they shall be referred to a private tribunal, and that the only action shall be on the award of the private tribunal. ' If such a clause were valid as a bar to an action, there might, in every contract, be a clause that there should be no right of action in the courts of law until the matters had been referred to arbitration, or to some private or particular tribunal, and then only on the award or decision of that tribunal, which would effectually take away the juris- diction of the legal tribunals, contrary, as I think, to the long-established rule which has hitherto prevailed on this subject. ' It is a legal incident to every contract that the parties should have a right to resort to a court of law for the settlement of their disputes ; and a stipulation to the contrary is void, as being repugnant to the rest of the contract.' Mr. Justice Cresswell says (p. 837) : ' The whole of the doctrine as to ousting the jurisdiction of the Courts appears to have been based upon the passage quoted by Mr. Baron Parke from Coke Littleton. " If a man make a lease for life, and by deed grant that if any waste or destruction be done that it shall be redressed by neighbours, and not by suit or plea ; notwithstanding an action for waste shall lie, for the place wasted cannot be recovered with- out plea." The case is not to be found in the Year Book, 3 Edw. 3, referred to, but is in Fitzherbert's Abridgment, 'Waste,' placitum 5, and the whole of it is given in Coke Littleton. It seems that this deci- sion proceeded on the ground that the neighbours could not redress the 24 Court of Queen's Bench (Ireland) . Mr. wrong done ; that it could only be done by plea ; therefore, notwith- Justice standing the deed, an action of waste would lie. There is not a word leading to the supposition that an action would have been maintainable, if neighbours could have given the appropriate redress, or that it might not have been granted by deed ; that if a dispute arose about waste, neighbours should say whether there had been waste or not. But in subsequent cases it has been considered to have established that parties cannot by agreement oust the jurisdiction of the Courts of the realm. But if this point of the rule is not illegal, as at- tempting to oust the jurisdiction of the Courts, and not void as repugnant to the contract, it appears to me that the subsequent part of the rule cannot be objected to, for it merely substitutes another mode of ascertaining the amount to be paid if the claimant is dissatisfied with the adjustment by the committee.' At p. 841, Mr. Justice Coleridge is thus reported: ' The principle of law which is relied on by the plaintiff in error is agreed on. The difference between the parties is upon the qiiestion, whether it governs the present case; and this must be decided by determining the true construction of the agreement. If two parties enter into a contract, for the breach of which in any particular an action lies, they cannot make it a binding term, that in such event no action shall be maintainable, but that the only remedy shall be by reference to arbitration. Whether this rests on a satisfactory principle or not may well be, questioned ; but it has been so long settled that it cannot be disturbed. The courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction, which has been considered a right inalienable even by the concurrent will of the parties I certainly am not disposed to extend the operation of a rule which appears to me to have been founded on very narrow grounds directly contrary to the spirit of later times, which leaves parties at full liberty to refer their disputes at pleasure to public or private tribunals.' Mr. Baron Alderson says (p. 844) : ' Two propositions were conceded on all hands as being true. First, that any agreement which is to prevent the suffering party from coming into a court of law, or, in other words, which ousts the courts of their jurisdiction, cannot be supported ; and, second, it is allowed that there may be lawfully introduced into any contract a condition precedent as to settling the amount of damage or time of paying it, being a condi- tion which does not go to the root of the matter in dispute.' The Lord Chancellor, in moving that the judgment below should be affirmed, says (p. 845) : Rev. Robert O'Keeffe v. Cardinal Cullen. 25 ' This question appears to me to be one merely of construction of Mr. the policy. For there is no doubt of the general principle, which was Justice argued at your Lordships' Bar, that parties cannot by contract oust the " ordinary courts of their jurisdiction. That has been decided in many cases. Perhaps the first case I need refer to was a case decided about a century ago, Kill v. Hollister There is no doubt that where a right of action has accrued, parties cannot by con- tract say that there shall not be jurisdiction to enforce damages in respect of that right of action. Now, this doctrine depends upon the general policy of the law, that parties cannot enter into a contract which gives rise to a right of action for the breach of it, and then withdraw such a case from the jurisdiction of ordinary tribunals.' In expressing his concurrence in the conclusion of the Lord Chancellor, Lord Campbell says (p. 851) : ' In the first place, I think the contract between the shipowner and the underwriters in this case is as clear as the English language could make it, that no action should be brought against the insurers until the arbitrators had disposed of any dispute that might arise between them. Tt is declared to be a condition precedent to the bringing of any action. There is no doubt that such was the intention of the parties ; and upon a deliberate view of the policy, I am of opinion that it embraced not only the assessment of damage, the contemplation of quantum, but also any dispute that might arise between the underwriters and the insured respecting the liability of the insurers, as well as the amount paid. If there had been any question about want of seaworthiness, or deviation, or breach of blockade, I am clearly of opinion that upon a just construction of this instrument, until those questions had been determined by the arbitrators, no right of action could have accrued to the insured. That being the intention of the parties, about which, I believe, there is no dispute, is the contract illegal ? There is an express undertaking that no action shall be brought until the arbitra- tors have decided, and there is abundant consideration for that in the mutual contract into which the parties have entered ; therefore, unless there is some illegality in the contract the Courts are bound to give it effect. There is no statute against such a contract ; then on what ground is it to be declared illegal ? It is contended that it is contrary to public policy ; that is rather a dangerous ground to go upon. I say that with great deference before your Lordships, after the view that was taken in a very important case lately decided in this House ; but what pretence can there be for saying that there is anything contrary to public policy in allowing parties to contract that they shall not be liable to any action until their liability has been ascertained by a domestic and private tribunal, upon which they themselves agree ? Can the 26 Court of Queen's Bench (Ireland) . Mr. public be injured by it? It seems to me that it would be a most Justice inexpedient encroachment upon the liberty of the subject if he were not _ allowed to enter into such a contract. Take the case of an insurance club, of which there are many in the north of England ; a noble Lord, now present, who is connected with that part of the country, is probably aware of it; there are insurance clubs of this sort in Newcastle and in all the seaports of the north. Is there anything contrary to public policy in saying that the company shall not be harassed by actions, the costs of which might be ruinous, but that any dispute that arises shall be referred to a domestic tribunal, which may speedily and economically determine the dispute ? I can see not the slightest ill consequences that can flow from such an agreement, and I see great advantage that may arise from it. Public policy, therefore, seems to me to require that effect should be given to the contract. ' Because all that has been hitherto decided in Thompson v. Charnock, and the other cases referred to, is this, that if the contract between the parties simply contains a clause or covenant to refer to arbitration, and goes no further, then an action may be brought in spite of that clause, although there has been no arbitration.' It seems to ine perfectly clear, whatever meaning isolated expressions may be susceptible of, that, taken as a whole, these opinions of the judges, and the judgments of the Lords in that case, affirm only that an agreement not to sue cannot be pleaded in bar to an action, and are inconsistent in language and result with the existence of any such illegality as the plaintiff here asserts. I have not, however, as yet, referred to the opinion given to the Lords in that case by- Mr. Baron Martin. The views of that learned judge are entitled to special consideration, because he examines the doctrine in detail, and deals in express terms with the very point now in dispute; and differing, as he did, from the decision of the Lords, that the plea was good, he may be assumed to have stated the rule, as strongly as the law per- mitted, in favour of the view advanced by the plaintiff in this action. The learned Baron, at p. 825 of the report, says : ' In the argument before your Lordships, it was not contended but that the law upon this subject was correctly laid down in the case of Thompson v. Charnock Lord Kenyon, in delivering the judgment of the Court, said it had been decided again and again that an agreement to refer to arbitration is not sufficient to oust the courts of law or equity of their jurisdiction. The authority of this case has, I believe, never been doubted The Rev. Robert O'Keeffe v. Cardinal Cullen. 27 manifest object of the parties was to keep away from the jurisdiction of Mr. the ordinary Courts of Law and Equity any question of difference which Justice might arise upon the contracts, and merely to make use of the courts to enforce the award of the arbitrators. This, in my judgment, the law will not permit ; and whether it be attempted to be done directly or indirectly, I think the attempt is equally unavailing It was asked, were these conditions illegal ? The answer is, they are not ? that they are of the same class of contracts as all submissions to arbitration were before the statute 3 and 4 Wm. 4, c. 42, and as such submissions now which are not included within its provisions, viz., binding and operative if the parties choose to act upon them, but re- vocable at their will It has been said that parties best understand their own affairs, and ought to be permitted to make their own contracts : and the less courts of law and equity interfere except merely to enforce them, the better. There can be no doubt of the truth of this as a general rule : but there are certain contracts which no one would contend ought to be binding ; for instance, suppose a man to contract to commit a crime, or to become the slave of another for life, all would agree that such contracts were not binding, and could not be enforced in any court. There, therefore, must be some limit. I quite agree it is and ought to be a very narrow one ; but in my opinion, the law has included within the limit stipulations whereby a man agrees that questions arising upon his contracts and transactions shall be withdrawn from the jurisdiction of the ordinary tribunals cf the country ; such stipulations, I think, are of the same class as simple submissions to arbitration are at common law, and in their essential nature revocable. I cannot see any distinction in this respect between contracts made to submit a contemplated difference to arbitration and a contract made after one has actually arisen. 'It was said that the real ground of the judgment in the cases where the agreement to refer was held not to bar the action was, that they were independent covenants ; but this is most certainly not so. The true ground I believe to be, that a prospective agreement not to have recourse to the courts of law or equity of the country in respect of future causes of action to arise, is against the liberty of the law, which secures to every one the right of submitting to the Courts any matter in respect of which he claims redress.' In my opinion, the law is there fully, accurately, and Contracts distinctly stated by Baron Martin, viz., that such agreements to law not are not illegal, but inoperative to oust the jurisdiction of the | lle g al . but Courts. Counsel for the plaintiff also cited Horton v. Sayer. 1 tim That was an action on a covenant contained in a lease, and the defendant pleaded in bar a covenant that all matters 1 4 H. & N. 643. 28 Court of Queen's Bench (Ireland}. Mr. o f dispute should be referred to arbitration. The plea was Barry. held bad, because it went to oust the jurisdiction of the Court. Chief Baron Pollock states the ratio decidendi in a few words : ' It appears to me that this case is distinguishable from Scott v. Avery : but it is sufficipnt to say that not being governed by Scott v. Avert/, it falls within the rule which has been acted on for above a century, and according to which the superior courts of law cannot be ousted of their jurisdiction by the mere agreement of the parties; or in other words, that an agreement to refer does not prevent the parties from resorting to a court of law to enforce their rights or redress their wrongs.' These cases then, in my opinion, clearly decide no more than this, that an agreement not to sue, but to refer to arbi- tration, cannot be pleaded in bar to an action. In the course of the argument for the Plaintiff, I referred to the case of Livingston v. Ralli, 1 which is certainly strong against the plaintiff's contention that such a stipulation is 'illegal,' for it decides that an action can be maintained for the breach of such an agreement. That was an action on a contract containing a prospective agreement that any difference arising should be referred to arbitration, and the breach alleged was a refusal by the defendant to concur in the reference; and it was held on demurrer that the action lay. Lord Campbell says : ' Why should not such a promise be binding, and one for the breach of which an action will lie ? Can it be said that such an agreement is void as being immoral, or as contrary to public policy ? There seems at one time to have prevailed in our courts a horror of a domestic forum which I can neither sympathise with nor account for.' And he refers to the provisions of the Common Law Procedure Act, enabling the Courts to stop an action where there is an agreement to refer. Mr. Justice Coleridge says : ' The fallacy of the argument consists in confounding two separate cases ; one where the defendant relies on such an agreement as a bar to an action, a defence which if successful would oust the Court of its jurisdiction; the other, which is the present, where the plaintiff seeks damages for not fulfilling the agreement.' 1 5E. &B. 132. Rev. Robert O'Keejfe v. Cardinal Cullen. 29 The distinction between absolute illegality and mere Mr. inoperativeness as a bar to an action is there clearly and unequivocally taken. I am therefore of opinion that, although the cases clearly show (what indeed could not be disputed) that this rule of ecclesiastical discipline could not be pleaded in Catholic bar to an action brought in violation of its provisions, yet Church not they entirely fall short of establishing that the rule is illegal and void in the sense contended for by the plaintiff. But it was suggested that this rule of the Church differs from the stipulations not to sue in the cases referred to, because in these cases there was an agreement to refer the dispute to arbitration, whereas here the party aggrieved would have no remedy at all against the slanderer. If that were so alleged Are the on the record as a matter of fact, it would, in my opinion, p 01 ? 3 ?. very materially alter the position of affairs upon the point I Clergy am now considering. It would be difficult indeed to main- Wlth ut 1 m . remedy? tain that any court in this country would lend its aid to enforce a rule that a man should submit "without redress to defamation, and the loss through slander of that good name which is to many a man more precious than life itself. But no such case is made by the plaintiff on his replication. He does not aver in that pleading that the plaintiff was by the rule of the Church excluded or debarred from any redress for the slander in respect of which he had sued the other eccle- siastics. No such averment appears by implication. We can- not presume facts to constitute illegality. In truth, this point of the absence, under the rules of the Church, of any redress for the slander, was suggested by an observation of a member of the Court, and was palpably not in the contemplation of the pleader who framed the replication, which it is clear was never intended to raise such a point. The fair construction of that pleading raises only the one question, namely, that the exclusion of the plaintiff from the Queen's Courts renders the rule of the Church illegal, irrespective altogether of the existence or non-existence of any other mode of obtaining redress. But, then, it is said that the rule of the Church Is the under discussion differs from a mere stipulation in a specific rttle a . conspiracy contract between parties, and, being a general agreement against between the members of a religious community that the ecclesiastics should not in certain cases resort to the civil tribunal, is illegal as a conspiracy, such as that alleged in the 30 Court of Queen's Bench (Ireland). Mr. case of The Queen v. O'Gonnell and others, 1 and we were re- Justice ferred to the charge delivered to the grand jury in that case by Mr. Justice Burton. That learned judge says, in his address to the grand jury : ' I here allude to the charge of endeavour- ing to bring into contempt and disrepute the legal tribunals of the country ; to diminish the confidence of the Queen's subjects in the same, and to assume and usurp the prerogative of the Crown in the establishment of courts for the adminis- tration of the law.' On this point I shall only say that I would hold such a conspiracy as there described by Mr. Justice Burton to be grossly illegal and criminal ; but the existence of such a conspiracy is not averred here, and, unless we are to subvert all the well-known rules of pleading and Is the presumption, we cannot presume it. But then, it is said contrary that, independently of all the before-mentioned considera- te public tions, or of any express authority, we should, on abstract principles, decide that this rule of the Church is void as against public policy or the policy of the law. If the matter were wholly res integra I am not prepared to say that I would regard it as at all against public policy that there should be a rule in any Church that the ministers of religion should not bring actions of slander against each other for words spoken in relation to ecclesiastical matters. I see nothing immoral in such a rule, or against the public good, and such a regulation may be the means of avoiding miser- able scandals, useless for any good purpose, but disastrously Similar injurious to the interests of religion. But the fact is, that ot ] 1M . rules similar in character, but more extensive in their scope Societies. an ? stances as to divest it of its libellous character and constitute it what is called a ' privileged communication.' The legal canon as to what communications are privileged is stated in D 2 36 Court of Queen's Bench (Ireland). Mr. the first volume of the late edition (1871) of the notes to Barry. William's Saunders, at page 143, in the following terms : ' A communication made bond fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.' This canon is taken from the judgment of Lord Campbell in Harrison v. Bush, 1 where that experienced judge adds ' Duty, in the proposed canon, cannot be confined to legal duties which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation.' The defence thus consists of two branches, one involving a question of law, namely, whether on the facts proved or admitted an interest or duty creating the privilege exists ; and the other branch, a question of fact, namely, whether the communication was made bond fide, which includes a belief in the truth of what is stated, and the absence of malice. I have observed from time to time some strange confusion of ideas to exist as to the functions of the judge at Nisi Prius, respecting a defence of this kind ; but the solution seems to me exceedingly simple. In England the defence is not necessarily, but almost invariably, raised on the plea of not guilty, and it is, therefore, for the judge at the trial to decide whether the facts proved establish an occasion of privilege. But in this country the practice has, unfortu- nately, and, in my opinion, erroneously, grown up, under the Procedure Act of 1853, of pleading such a defence in the most elaborate detail. Sometimes, however, the existence of * interest ' or ' duty ' is averred as a matter of fact, or rather of mixed law and fact, and then it is the province of the judge at the trial to decide in the same manner as under the general issue in England. Sometimes, on the other hand, all the facts relied upon as creating the interest or duty are fully set out, and the existence of the interest or duty is averred only as a mere legal and untraversable inference from the facts stated. Under that form of plead- ing, the judge at the trial has only to take the verdict of 1 5 E. & B. 344. Rev. Robert O'Keeffe v. Cardinal Cullen. 37 the jury upon the facts alleged, and if the plaintiff wishes to Mr. contend that such facts, if proved, do not in law establish the privilege, he should raise the question on the record by demurring or forcing the defendant to demur, or (after trial) should apply for judgment non obstante veredicto, if the issue on the plea be found against him. The question is, on this demurrer, opened before us upon the facts as appearing on the defence, replications, and rejoinders, and admitted to be true. What are these admitted facts? That the plaintiff Facts of became a priest of the Roman Catholic Church, and obtained show^ 6 the office of parish priest under the obligation and contract 'privilege' that he would obey and conform to the laws and discipline of tne pu that Church ; that he violated one of these rales ; that the sentence, defendant was the judge appointed, according to these rules and discipline, to hear and determine this charge against the plaintiff; that the plaintiff submitted to the jurisdiction, appeared before the defendant as such judge, and made his defence ; and that the defendant, in accordance with the laws and rules of the Church, which the plaintiff had bound himself to obey, and in exercise of the jurisdiction to which the plaintiff had submitted, pronounced the sentence of suspension, and published it according to the same laws or rules, or communicated it to persons having an interest in knowing such sentence, and that such publication or communication was bond fide, without malice, and with a belief in the truth of the matter stated. The question is, can an action of libel be maintained under such circumstances for such a publication ? It may possibly be that, notwith- standing these facts, the plaintiff might retain possession of any property which he had obtained as parish priest ; it may be even that he might be able to restrain by injunction persons from interfering with the temporalities of his ministry ; he may in any suit or action on the contract, or involving property, be able to defeat his own contract, by showing its illegality, but I do not think he can, under the circumstances stated, maintain this action of libel. The defences are good as pleas of privileged communication. It may be said, how can there be an interest or duty to publish a sentence which is so illegal under the statute of Elizabeth, that it could not be enforced in the courts of law or equity ? The answer is, that, although the sentence may be so illegal under the 33 Court of Queen's Bench (Ireland). Mr. Justice Barry. Plaintiff, by contract, gave the Cardinal the privilege. Plaintiff assented to the publica- tion of the sentence. Plaintiff consented to illegal acts, and BO cannot complain. statute, or by reason of its being based on the rule against suing in the Queen's Courts, it does not follow that its con- sensual operation between the plaintiff and defendant may not, and must not, for many purposes, be recognised. The plaintiff has by his contract and by his own acts and conduct created, or professed to the defendant to create, defac.to, the duty and interest. He may be able to resist an action 011 the contract, or a claim to recover property founded 011 the contract, by showing the contract to be illegal, but he cannot, in my opinion, in this action of libel, be heard to question the existence of the privilege which he himself so created, and on the faith of which he induced the defendant to act. But, independently of this question of privilege, I think these defences are, or at least the . 9th defence is, a good answer to this action upon another ground. I think the maxim of law, volenti non Jit injuria, applies. The proposi- tion so often repeated by the plaintiff's counsel ' that a void stipulation is for all purposes the same in result as if there were no stipulation at all ' is not true. A stipulation may be void as a contract, and yet relied on as a license or consent, and may bar an action of tort. I gave instances of this in the course of the argument. It appears on the defence that the publication of which the plaintiff complains, and for which he demands damages,, took place with his own consent, express or implied, and the maxim referred to lays down that a man cannot ask a court to treat as an injury that to which he has himself assented. It is a maxim not alone of law, but of obvious sense and natural justice, and I do not believe that the jurisprudence of any civilised country in ancient or modern times, in which justice between man and man is recognised, would permit an action for libel to be maintained under the circumstances stated in that 9th defence. Again, assuming that the rule as to suing ecclesiastics in the Queen's Courts is illegal, and that the constitution and proceeding of the tribunal were also illegal, I think another maxim of law renders the facts stated, at all events in the 9th defence, a good answer to the action, viz., the maxim In pari delicto potior est conditio defendentis. This maxim is found to be applied usually in actions of contract arising out of illegal agreements ; but I see no reason why the principle Rev. Robert O'Keejfe v. Cardinal Cullcn. 39 should not apply here. If there were illegality, the plaintiff Mr. was a party to it, and cannot, in my opinion, base a claim to Barr damages upon the existence of an illegality in which he himself participated. The plaintiff's counsel contended that although his contract of obedience was, in fact, unqualified in its terms, he must be considered by a legal implication as only contracting to obey such rules of the Church as are conformable to our law, but this is only another form of stating their fallacious proposition, 'that avoid stipulation is the same as no stipulation.' From the reasons which I have assigned for my decision on the 9th, 10th, and llth defences which are pleaded to the counts on the sentence of suspension, it will by seen that as to the 4th count my judgment on the 16th and 17th defences is for the defendant, and on the 18th, which (like the llth) avers that the sentence of suspension was ' legal,' my judg- ment is for the plaintiff. I may observe that the special replication to the 16th, 17th, and 18th defences differs from that pleaded to the 9th, 10th, llth, and 12th defences, by averring 'that certain of the said laws, ordinances, rules, * canons, and discipline purported to prohibit any ecclesiastic from impleading any other ecclesiastic in any of Her Majesty's Courts for any cause whatever.' No stress, however, was laid in argument on this difference, and the same construc- tion was adopted for that replication, and the rejoinder thereto, as was adopted respecting the replication and re- joinder to the 9th, 10th, llth, and 12th defences, and the same reasoning will therefore apply. I do not mean to sug- gest that even if the words to which I have referred in the replication to the 16th, 1 7th, and 18th defences were to have their full force, uncontrolled by the rejoinder, these words would materially affect the conclusions at which I have arrived. FITZGERALD, J. : The clear and masterly judgment to which we have just Mr. listened renders it unnecessary for me to consider the plead- r . Justlc< f d ings in detail, or to observe upon the authorities which were so numerously cited in the course of the argument ; but the importance of the questions which the case involves calls on 40 Court of Queen's Bench (Ireland). Mr. me to state at large the reasons for the judgment I have Fitzgerald f rrae( l. I deem it essential, in the first instance, to extract from the record the matters of fact which are to be taken as admitted for the purposes of our judgment. I feel, too, that in such a case as the present I am imperatively called on to confine myself to the very record, and to avoid, as far as practicable, the introduction of extraneous matter, or the use of any observations that might tend in the least to pre- judice the trial which is to take place. The facts, which on Facts of a critical examination of the record I find to be admitted, lse> are that the plaintiff was in holy orders as a priest of the Church of Rome in Ireland, and held the office of parish priest of Callan, in the diocese of Ossory, and that he became such priest and parish priest subject to the laws, ordinances, and discipline of the Roman Catholic Church, and had consented and agreed to be bound thereby, and was subject to the said laws, ordinances, and discipline ; that the defendant was an archbishop of the said Church, having ecclesiastical and spiritual jurisdiction over the Roman Catholics of the diocese of Dublin, and was, according to the said laws, ordinances, and discipline, Primate of Ire- land and Metropolitan of the ecclesiastical Province of Leinsier, of which the Roman Catholic diocese of Ossory was a suffragan diocese ; that according to the laws, ordi- nances, and discipline of the Church, it was not lawful to pronounce judgment or sentence of suspension on the plaintiff unless and until he should have committed some violation of the said laws, ordinances, or discipline ; that the plaintiff had been visited with suspension from the ministry by the bishop of the diocese, upon the ground that he had im- pleaded the said bishop, and one the Rev. John Walsh, in Her Majesty's Courts of common law for the alleged speaking of certain slanderous words of the plaintiff in his character of a priest of the said Church, and in relation to his office of parish priest of the parish of Callan, which irnplead- ing was contrary to, and in violation of the laws, ordi- nances, canons, and discipline of the Church ; and the plaintiff alleges that he had not, save by such impleading, in any manner violated or acted contrary to any law, ordi- nance, or discipline of the Church, and that he disregarded that suspension, and celebrated mass notwithstanding it, Rev. Robert 0'K.eeffe v. Cardinal Cull&n. 41 and publicly stated that the bishop had no power to visit Mr. him with such suspension : that complaints and representa- tions were made in respect of the acts and declarations of the plaintiff in disregarding the said suspension and cele- brating mass as aforesaid ; and thereupon, by an ordinance of Pope Pius IX., issued by the Sacred Congregation de Propaganda Fide at Rome, dated the 31st May, 1871, signed by the Cardinal Prefect of the said Sacred Congregation, and sealed with its seal, reciting that, ' Whereas, it has been represented to the Sacred Congregation de Propaganda Fide that grievous scandals have arisen in the diocese of Ossory from the proceedings of the E-ev. Mr. O'Keeffe, parish priest of Callan, who, although visited by suspension from the sacred ministry by the right reverend bishop of the diocese, pre- sumes, notwithstanding, not only to celebrate mass, but also in public harangues to inveigh against the bishop him- self, now suffering from illness,' the said Pope Pius IX., the Pope of the said Church, granted to the defendant necessary and suitable powers, whereby the defendant, as delegate of the Apostolic See, was authorised to proceed in the matter of the plaintiff; that according to the laws, ordinances, and discipline of the said Church, the said Pope Pius IX. had full power and authority to make the said ordinance; that the plaintiff had notice of the ordinance and of the investigation to be held by defendant under it, and appeared before the defendant on the same, and defended his said proceedings and conduct ; and that the defendant heard all that the plaintiff had to say in relation to the matters aforesaid ; that the said inquiry having been duly adjourned to a future day, of which the plaintiff had notice, and at which he was required to attend, the defendant did pronounce judgment of suspension against the plaintiff as alleged. The defendant then alleges ' that the said judg- ment and sentence were conformable to the laws, ordinances, and discipline of the Church, and did to the defendant seem just, and that all things happened, and all conditions were performed, to render the said judgment and sentence valid and binding on the plaintiff, according to the laws of the Church, unless and until the same should be reversed by due ecclesiastical authority, and that it was the duty of the defendant to publish it to the parties interested.' Although 42 Court of Queen's Bench (Ireland) . Mr. there are other issues joined, which raise a controversy as to Fitzgerald. s m e of the matters of fact which I have assumed to have been admitted for pleading purposes, such as a denial of the truth of the plaintiff's allegation that he was suspended solely on the ground that he had instituted actions against his bishop and curate, yet, at present, we have nothing to do with them, and must confine ourselves to the line of pleading brought before us by the plaintiff's demurrer. We must look to the matters admitted on this portion of the record, and give judgment for the party who appears to be entitled to judgment, as if these matters had appeared on a case stated. In considering the questions which arise, it is important to bear in mind that the action is for defamation alone, and does not involve any question of right to property, or pos- session of property, or profits. It is not alleged that the plaintiff has been ousted from his parish or deprived of the emoluments of his office of parish priest, and it may be that the plaintiff* is still acting as parish priest, in full possession of the profits of the office, and uninjured so far in his financial position. The suspension, if illegal, deprives the plaintiff of nothing ; he has not lost his cure or its profits, nor has he been dispossessed of his parochial residence. Mr. Purcell, in his reply, went so far as to admit that in this action the Court cannot determine whether the plaintiff had been pro- perly removed as priest, nor could the Court restore him, but he alleged that the Court may give him damages for the defamation if the judgment proves to be invalid according to the law of the land. It may be questionable to what extent the law recognises the temporal position of the parish priest ; yet I apprehend that the office is such that defamatory words published of a person filling that office, and in refer- ence to his position as parish priest, would be actionable without showing special damage, and it therefore becomes unnecessary to consider whether the special damage alleged in the plaint, of the plaintiff's dismissal from the office of chaplain to the workhouse can be sustained as the natural and reasonable result of the libel. That allegation of special damage can have no effect whatever on our present deter- mination. My brother BARRY has clearly pointed out the several questions which the argument has developed, and I Rev. Robert O'Keejfe v. Cardinal Cullen. 43 now proceed to express my opinion on the most material of Mr. them. The first in importance seems to be Was the papal Fi t ^ e raH ordinance illegal, and prohibited by the law of the land ? On this question I refer in the first instance to the 2 Eliza- papal beth, c. 1 (Irish). From the preamble to that Act it seems ordinance that there were at least two objects to be accomplished, viz., to restore the supremacy of the Crown which, it was sup- posed, had been affected by the 3 & 4 Philip and Mary, c. 8, which repealed the Acts passed in the reign of Henry 8 and, further, to ' extinguish and put away all usurped and foreign power and authority out of the realm.' The 5th section, in very clear and forcible language, provides that no foreign prince or prelate shall exercise any manner of juris- diction or authority, spiritual or ecclesiastical, within the realm. The question, then, which I am now dealing with seems to be whether that ordinance or rescript of the Propaganda is in any manner an exercise of jurisdiction or authority within this realm. There is no question but that it emanated from a foreign prince or prelate namely, Pope Pius IX. We have not before us any copy of that ordinance or rescript, but we can collect its import from the 9th defence. It is there described as an * Ordinance of Pope Pius IX., issued by the Sacred Congregation de Propa- ganda Fide at Eome, signed by the Cardinal Prefect, and sealed with the seal of the said Sacred Congregation ; ' and it states that ' the said Pope Pius IX. granted to the defendant necessary and suitable powers whereby the defen- dant, as delegate of the Apostolic See, was authorised to proceed in the matter of the plaintiff.' The defence then alleges that, according to the laws of the Komaii Catholic Church, the Pope had authority to make the ordinance, and that under and by virtue of it the defendant acquired full power to inquire into the proceedings and conduct of the plaintiff and to pronounce on him such judgment and sentence, being conformable to the laws of the Church, astothe defendant should seem just. I have before me also a full copy of the sentence of suspension, in which the authority conferred by the Pope is thus stated: 'Cum Smus.Dnus. noster PiusPP, IX., qui omnium ecclesiarum curam et solicitudinem gerit, iiecessarias et opportunas facultates nobis tribuere dignatus sit, ut de querelis et accusationibus qute adversus te circum- 44 Court of Queen's Bench (Ireland). Mr. Justice Fitzgerald. Ordinance illegal by statute of Elizabeth. That statute not repealed. feruntur, inquirere et sententiam proferre possemus, auctoritate ita nobis collata innixi, causain tuam diligenter, examinare non omisimus.' The term 'ordinance' in the 9th defence, as used there, must be taken to mean a decree or law emanating from the sovereign authority of the Pope as the head of the Church ; and there can be no doubt that such is the correct interpretation of the term, when we take it in connexion with the words ' facultates nobis tribuere ut de querelis et inquirere, et sententiam proferre possemus,' and call in aid the allegations of a ' grant of authority,' and the acquisition thereby of ' full power and authority. 5 We have thus a decree of a foreign prince and prelate, pur- porting of his sovereign authority to create a tribunal and appoint a judge to hear and determine within this realm complaints and accusations against the parish priest of Callan, in his character of parish priest. Does that ordi- nance or decree come within the 5th section of the statute of Elizabeth? In my opinion it comes within its letter, and is prohibited by that section. It was scarcely con- tended in argument that the ordinance did not come within the terms of the statute, but it was alleged that the statute of Elizabeth was but one of the statutes of Pro visors, such as the 12 Richard II., the scope of which was to prohibit appeals to Rome and suits or processes in the Roman courts in derogation of royal authority, and that it should be so interpreted; and further, that the object of the statute of Elizabeth was only to uphold the supremacy of the Queen over the established Church, as its lawful and recognised head. The language and pro- visions of the repealed Acts of Henry VIII. and of the statute of Elizabeth reach beyond the statutes of Provisors, and it is plain from the latter statute and the contemporaneous enactments of the same reign, that Queen Elizabeth's Par- liament had a purpose much more extensive than the mere restoration of the Royal supremacy in ecclesiastical matters, and that their object was the entire overthrow and extinction in the country of the Roman Catholic religion. It was, how- ever, contended by the defendant's counsel that the statute of Elizabeth had been virtually repealed by modern legislation, and he relied principally on the statutable abandonment of the oath prescribed by the 7th section, and the penalties im- Rev. Robert O'Keeffe v. Cardinal Cullen. 45 posed by that Act, and for this purpose referred us to the Mr. Emancipation Act *, and the form of oath there given, in Fitzgerald. which the term ' spiritual ' is omitted, and also to the Par- liamentary Oaths Act 2 , and the form of oath there given. He further contended that the recognition of the Roman Catholic Church in Ireland, and its usages, discipline, and government, and archbishops and bishops and others in holy orders of the Church of Rome, and their successors, to be found in the Charitable Bequests Act 3 , together with the preamble of the Irish Church Act, 1869 4 , were entirely inconsistent with the statute of Elizabeth, and must be con- sidered to have effected its repeal by implication, as far as the present question is concerned. For more than two cen- turies after 1560, legislation and the administration of the law went hand in hand in the spirit of the statute of Elizabeth, and to effectuate its object. The first real altera- tion was in 1793, but on a critical examination of the Relief Act of that year 5 , as well as of the subsequent statutes of a similar character, and the Acts making altera- tions in the form of parliamentary and other oaths, so far as these statutes may bear on the questions now before us, I can find nothing in them to repeal by necessary implication that provision of the statute of Elizabeth which prohibits the exercise of any manner of foreign power or jurisdiction within the realm. It may truly be said of the statutes referred to that they relieve subjects of the realm from penalties, disabilities, and incapacities ; that the Roman Catholic Church is thereby recognised under certain con- ditions, and the exercise of its religion tolerated, but that they do not give any authority for the enforcement of spiri- tual or religious jurisdiction. The State practically recognises the internal arrange- ments of the Roman Catholic Church, but not its government. It gives no aid in the enforcement of its rules or discipline, leaves it to maintain its internal government as best it can, but looks with extreme jealousy to see that it assumes no temporal power within the realm, and exercises no coercive ecclesiastical jurisdiction emanating from foreign authority. 1 10 Geo. 4, c. 7. 2 29 Viet. c. 19. 3 7 & 8 Viet. c. 97, ss. 6, 15, 17. 4 32 & 33 Viet. c. 42. 5 33 Geo. 3, c. 21 (Ir.). 46 Court of Queen's Bench (Ireland}. Mr. It seems to me that the policy of these enactments is to be Justice collected from the Religious Opinions Toleration Act, 1 viz., to relieve from penalties and disabilities on account of reli- gious opinions, but to leave the law in other particulars unaltered. The statute I have last adverted to affords a conclusive answer to the supposed repeal by implication of the 5th section of the statute of Elizabeth. I am of opinion that the rescript or ordinance in question comes within the prohibition of the statute of Elizabeth, and is illegal at least to the extent that no court of law or equity in this country would become active to enforce a judgment or decree founded upon it. The opinion which I have arrived at on the statute of Elizabeth, in accord with Mr. Justice BAKRY, renders it wholly unnecessary for me to express any judgment on the question, whether that statute was merely declaratory of the common law, and also frees me from any obligation to consider Lord Coke's reading, De jure Regis ecclesiastico in Cawdrey's Case,* or the legal or historical accuracy of the dissertation of the Attorney-General, as given by Sir John Davies in the report of ' The Case of Proemunire ' in 1606. The point which I have just discussed was put forward by the plaintiff's counsel apparently with some hesitation, and was not the question which was mainly pressed upon us. I can quite appreciate the embarrassment of counsel repre- senting the plaintiff, in relying strongly on a point which goes far to undermine the foundation of the government of the Roman Catholic Church in this country, and tends to relegate that Church to the position that its government must not be carried on in the open day, but secretly, and accompanied by the danger of infringing on the statute of Elizabeth, or of overstepping the common law. As to the The point emphatically relied on for the plaintiff, and forbiddin wn i c h we were confidently called on to decide in his favour, ecciesias- was that the rule, or supposed rule, of the Roman Catholic tol-iw 8 Church, which prohibits a priest from impleading another priest in the temporal courts in respect of matters relating to his office and character of priest, under pain of suspension from ecclesiastical functions, or expulsion from membership in the Church, is illegal and void, as being against public policy. This question, which is of importance to the government 1 9 & 10 Viet. c. 59. 2 5 Hep. Rev. Robert O'Keeffc v. Cardinal Cullcn. 47 of all voluntary Churches, has been so fully and ably h andled by Mr. my brother BARRY that I have but little to say on it. There can be no doubt that if the rule in question, or the rule of any Church, had for its object the exemption of the clergy from secular authority, or their immunity from civil jurisdiction or civil punishment, it would be our duty at once to declare that such a rule was utterly illegal. Upon this there ought to be, as there is, no doubt. No Church, no community, no NO Church public body, no individual in the realm, can be in the least ex 01 "? 1 from above the law, or exempted from the authority of its civil authority or criminal tribunals. The law of the land is supreme, and of lbe law> we recognise no authority as superior or equal to it. Such ever has been, and is, and I hope will ever continue to be, a principle of our constitution. It is equally clear that the rule now under consideration, is in one sense inoperative ; that in a court of law it would afford no answer or defence to any civil action or suit, or criminal proceeding, nor would a court of equity restrain any suit or proceeding in violation of its letter or spirit. There is no doubt, too, that an agree- ment ousting the jurisdiction of the ordinary tribunals of the country cannot be enforced, and that it would be against the policy of the law to give effect to a stipulation that a right of action once complete should not be enforced through the ordinary tribunals. In my judgment, however, the agree- Nature of ment or rule now under consideration is not of that character. the rule - There is no question of the right of the plaintiff to submit any complaint he may have to the decision of any of our courts ; but it is alleged that as the plaintiff became a mem- ber of a voluntary association, subject to the rule in question, and to which he consented, he cannot complain if, in con- sequence of a breach of it, he is liable to be suspended from membership. In my opinion, the rule, limited as I have ^ic ro t stated it, is not contrary to the public good or the liberty of illegal, the law, and may be a very wholesome rule of practice and discipline. Scott v. Avery * was, on this branch of the argument, mainly relied on by the plaintiff. It is there laid down by the highest authority that parties cannot by con- tract oust the ordinary courts of their jurisdiction ; and that is true in this sense that, notwithstanding such an agreement, an action will lie. Lord Campbell accurately states the true purport of the decision thus : ' Where an 1 5 H. L. C. 853. 48 Court of Queen's Bench (Ireland). Mr. action is indispensable you cannot oust the court of its juris- Justice diction over the subject, because justice cannot be done with- out the exercise of that jurisdiction. That is all, and there is no doubt about that. This is the foundation of the doctrine that the courts are not to be ousted of their jurisdiction.' The rule established by Scott v. Avery is explained by Baron Bramwell in Elliott v. Royal Exchange Company, 1 and its authority is unquestionable. My brother BARRY has referred Nor to abundance of authority to establish that the rule of dis- to'wabHc cipline now under consideration cannot be deemed illegal and good. void, as being contrary to the policy of the law, and I can only add that, in my opinion, it is not contrary to the public good. In addition to the numerous instances which he has referred to, in which a similar rule is to be found regulating the internal discipline of other Churche > and public bodies in the United Kingdom, I may add the high authority of the Presbyterian Church, as indicating that such a rule is not contrary to morals, and is in accordance with Christian teaching. In inculcating the duty of avoiding unnecessary lawsuits between members of that body, the answer to the 142nd question of the larger Catechism adopts the authority of the 1st Corinthians, ch. vi., verses 1, 5, and 6 ' Dare any of you having a matter against another go to law before the unjust, and not before the saints ? ' * Is it so that there is not a wise man amongst you no, not one, that shall be able to judge between his brethren ? ' ' But brother goeth to law with brother, and that before the unbelievers.' I concur with my brother BAERT in the reasons he has given why we ought not to assume on the pleadings that the rule which pro- hibited ecclesiastics from impleading each other provided no remedy for actionable wrongs ; but I shall add for myself, and for myself only, that if the rule was general that no ecclesiastic should seek redress against another ecclesiastic in any of the Queen's Courts for any wrong or injury what- ever, and provided no other remedy, such a rule would be illegal and void, as being against the public good. The argument developed a third question, of novelty and importance, which may be thus stated viz., assuming both or either of the preceding questions to be decided in the plaintiff's favour, yet is an action sustainable at his suit for 1 L. E. 2 Ex. 237. Rev. Robert O^Keeffe v. Cardinal Cullen. 49 alleged defamation in the publication of the sentence to the Mr. parties interested ? In considering this question, we have to bear in niind that the plaintiff became a priest of the Eoman Catholic Church and parish priest of Callan on his consent to be bound in his character of priest and parish becoming priest by the rules and discipline of the Church, and, on the a pn< condition that if he violated those rules he became liable to suspension. To constitute any individual a member of a voluntary Church two matters are essential 1st, a profession of its faith, and, 2nd, a submission to its rules, discipline, and government. It is further to be observed that, assuming the Papal rescript to be contrary to law, yet it was in accord- Plaintiff ance with the rules by which the plaintiff had agreed to be l n ^Q te ' bound. The plaintiff, with full notice, submitted to the Cardinal's jurisdiction of the Cardinal under that rescript, appeared ^ " s ' before the tribunal to which he had consented, made his case before the judge, and did not at any time withdraw from or revoke his consent to the tribunal to which he had volun- tarily submitted. The defendant, it may be assumed, had no coercive authority or jurisdiction ; but in his position of consensual judge or arbitrator he proceeded to determine the cause submitted to him, and to pronounce and publish his sentence. It is a maxim of our law that a man who neglects to speak when he might and ought will not be heard when he desires to do so. The plaintiff now says the ordinance was illegal, and the rule of the Church contrary to the policy of the law; but the defendant replies ' You knew all that; Both you consented to my jurisdiction, and induced me to act.' F^^ If the proceeding was illegal, both parties were inpari delicto, delicto.' and in such a case the Court will not interfere. In Gould v. Oliver, 1 Tindal, C. J., in applying the maxim volenti non fit injuria, speaks of ' the general rule of English law, that no one can maintain an action for a wrong where he has con- sented or contributed to the act which occasioned his loss.' It seems to me that, under such a state of facts, there is no precedent or authority for this action, and that the view I am prepared to adopt on this point is equally applicable to the pleas of privilege now before us, and to the pleas which allege that the sentence is not a libel. An action does not lie against the judge even of an inferior court for an libel- 1 4 Bing. (N. C.) 134. E 50 Court of Queen's Bench (Ireland). Mr. Justice Fitzgerald. Plaintiff therefore precluded from suing. lous statement which accompanies his sentence, if it can fairly be considered to form pa,rt of the judgment. In Jekyll v. Sir John Moore, 1 the plaintiff had preferred a charge against Colonel Stewart, who was tried by court- martial ; the defendant was president of the court ; and, after pronouncing an acquittal of Colonel Stewart, added ' The Court cannot pass without observation the malicious and groundless accusations that have been produced by Captain Jekyll, . . . and the Court do unanimously declare that the conduct of Captain Jekyll, in endeavouring to falsely calumniate the character of his commanding officer, is most highly injurious to the good of the service.' The plaintiff was non-suited, and the Court held the action did not lie, as the whole might fairly be considered to form part of the judgment. No case was cited of an action of defama- tion against an arbitrator or of a judge constituted by the consent of the parties for any statement forming fairly part of his judgment or sentence ; and, in my opinion, such an action could not be maintained in the absence of express malice. It will thus be seen that on the main questions of the case I am in entire accordance with my brother BARRY. I concur with him as to the extent to which, and the circum- stances under which, the judgment or sentence in question is examinable in our courts, and also in the result of the application of our decision to the pleadings now before us. I also agree with him in his view of the position of the Roman Catholic Church in this country, as not less than that of any voluntary Church, but beset with peculiar diffi- culties in relation to its headship, government, and catholic or universal character. We may well apply to it the language of the judgment in Long v. The Bishop of Capetown, 2 " The members of that communion may adopt rules for enforcing discipline within their body which will be binding on those who have expressly or by implication assented to them. It may be further laid down that where any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a tribunal to determine whether the rules of the association have been violated by any of its members or not, and what shall be the consequence of such violation, the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed 1 2 B. & P. (X. E.) 341. * 1 M. P. 0. C. (N. S.) 461. Rev. Robert O'Keeffe v. Cardinal Cullen. 51 such forms as the rules require, if any forms be prescribed, Mr. and, if not, has proceeded in a manner consonant with the p- Y^ principles of justice ; " and I may add for ourselves the general proposition that we do not profess to have jurisdiction over any Church or religious association as such. We do not undertake to decide for them ecclesiastical questions or questions of discipline or internal government. All that we undertake to do is to enforce the law of the land, to protect civil rights, and to uphold and preserve the public peace. I quite concur with the argument of the plaintiff's counsel that we cannot determine whether the plaintiff is parish priest or has been properly suspended from ecclesiastical functions, nor if removed can we restore him, but I am equally clear that on the pleadings before us this action of defamation cannot be sustained. O'BRIEN, J. : Mr. The pleadings in this case have been so fully stated by Q'B^ my brother BARRY, that it will be sufficient for me to refer very briefly to them. The plaintiff complains that two documents, written and published with reference to him by the defendant, were libellous ; one document being that mentioned in the first three counts of the summons and plaint, in which the defendant suspended the plaintiff from his office of parish priest of Oallan ; and the other document being that mentioned in the 4th count, and called the inter- dict of the parish chapel of Callan. The legal questions for our decision as to both those documents are substantially the same, and it will, therefore be sufficient to consider those arising on the four special defences (9th, 10th, llth, and ] 2th) pleaded to the first three counts, and on the plaintiff's second replication thereto, and the defendant's rejoinder thereon. The plaintiff has traversed those special defences as not being true in fact, and their truth will be investigated before a jury on the trial of this case ; but in now deciding on de- murrer the legal questions which have been raised before us, we must assume that the several statements in those defences, as to matters of fact, are true, and decide the case as if their truth had been admitted. E 2 52 Court of Queen's Bench (Ireland). Mr. Justice O'Brien. As to the legality o* the rule forbidding resort to law. Effect to be given to such rules. Nature of the rule in question. I shall refer to those questions in the order in which they were argued by counsel the first question being as to the legality or illegality of the rule of the Roman Catholic Church which has been so much discussed, and as to the extent to which the plaintiff's violation of that rule would affect his right to hold his office in that Church ; and in coming to a conclusion on that question, we should have regard to the principle laid down in the cases of Long v. The Bishop of Capetown, 1 and The Bishop of Natal v. Gladstone,* as to the effect which should be given in general to the rules and regulations of Churches or religious communities, such as the Roman Catholic Church, which, though tole- rated, are not established by law. That principle is, that such Churches or religious bodies should be regarded as voluntary associations, the members of which may adopt rules and regulations for enforcing discipline within their body and that those rules (if not illegal) would, so far as they affect the connexion and dealing between any such Church and its members, be held binding on those who ex- pressly or by implication had assented to them. The passages cited by my brother BARET from the decisions in those cases, and which I need not repeat, clearly establish this principle. With respect to the rule in question, it will be seen, on referring to the defendant's rejoinder, that it is not stated to be a rule for prohibiting priests of the Roman Catholic Church from bringing any action at law against other eccle- siastics of that Church ; but that (so far as it is relied on in that rejoinder, and as its legality is now to be considered) it only purports to prohibit a Roman Catholic priest from bringing an action against other ecclesiastics of his Church for alleged slanderous words spoken by them of and concern- ing him in his character of a priest of that Church. This limitation, as to the extent of the rule now to be considered, has been overlooked during much of the argument. What then, in its terms, is the effect of this rule ? It does not purport to impose upon any member of that Church the doing of any illegal act, or to prohibit him from doing what he was legally or morally bound to do; but it merely purports to prohibit him from doing an act which (indepen- dent of that rule) it would be perfectly optional for him to 1 1 Moo. P. C. C. (N. S.) 461. L. R. 3 Eq. 1. Ttev. Robert O'Keeffe v. Cardinal Cullen. 53 do or not to do, as lie should think fit. Various reasons Mr. might be assigned why it would be for the well-being and O'Brien. interests of all religious bodies, that complaints by clergj- men of slanderous words spoken of them by their fellow- clergymen should not be investigated by a civil tribunal. The adoption of a rule prohibiting clergymen of a Church from bringing actions in a court of law against their fellow- clergymen is not peculiar to the Roman Catholic Church, as rules of a similar character have been adopted and acted on by members of several other religious communities, who showed, by their adoption of them, that they considered them expedient and for the interest of their respective Churches. The plaintiff's counsel, however, contend that such a rule, even of so limited a character as that in question, is illegal, on the ground that ^,ny agreement pro- hibiting a party from suing in a court of law for any future cause of action is against public policy and illegal, as it tends to oust the jurisdiction of the established Courts of the country. We have been referred to several authorities on this subject, which clearly establish (what was not, indeed, controverted by the defendant's counsel during the argu- ment) that if a party who had entered into such an agree- How far ment thought fit afterwards to disregard it, and to sue in T a court of law for some subsequent cause of action, then that his previous agreement could not be relied on as a bar to such action, but would, on the contrary, be wholly inopera- tive for the purpose of defeating that subsequent action. But it is another and a different question, whether such an agreement should be considered as being altogether illegal and void, and one to which no effect whatever should be given. The difference between these two questions is illus- trated by the case of Livingston v. Ralli, 1 referred to by my brother BARRY during the argument, and the facts of which he has already stated. In that case it was contended that an agreement to refer future differences to arbitration was illegal, as tending to oust the courts of law of their jurisdiction ; but Lord Campbell, in his judgment, stated expressly that his own opinion and that of the profession was to the effect that, although such a prospective agree- ment would not be a bar to an action brought in respect of 1 5E. &B. 132. 54 Court of Queen's Bench (Ireland) . Mr. any such future differences, yet that an action could be O'Brien maintained for the breach of that agreement against the party who refused to refer those differences to arbitration. In page 135 he states : * Can it be said that such an agree- ment is void as being immoral, or as contrary to public policy ? It seems to me, on the contrary, that it is a very judicious and proper arrangement, and that it would be a strange restriction on the liberty of the subject if parties could not make such an agreement if they please.' Mr. Justice Coleridge also in his judgment (p. 137) pointed out the distinction between the case of such an agreement being relied on as a bar to an action (which defence, if successful, would oust the Courts of their jurisdiction), and the cases of a party bringing an action for the non-fulfilment of that agreement. And Mr. Justice Erie stated that he thought it an important principle of law that parties should be at liberty to make what contracts they pleased, so that they stipulate to do nothing but what they are at liberty to do. With respect to several of the cases which have been relied on during the argument, as showing the illegality of this rule, it will be seen that they really go no further than to establish that an agreement to refer future differences to arbitration could not in those cases be relied on as a bar to a subsequent action for such differences ; but those cases do not decide that such an agreement would be of itself illegal, and I think it unnecessary for me to refer further to them, after the full review of the authorities in the judgments of my brethren who have preceded me. If, therefore, those cases establish (as in my opinion they do) that an agreement to refer to arbitration any future differences as to matters of contract, is not illegal and against public policy, as tending to oust the' courts of law of their jurisdiction, what reason is there for holding that the rule in question is objectionable on that ground? This rule It has not the effect of ousting or interfering with the juris- oustthe diction of the Courts to any greater extent than the Courts agreements for references of future differences which were fLaw. discussed in those several cases, because the Plaintiff (though he had agreed to be bound by that rule) might still, if he thought fit, bring his action in a court of law against hi? fellow- clergy man for such slanderous words; Rev. Robert O'Keeff'e v. Cardinal Gullen. 55 and the fact of the plaintiff's having agreed to observe that Mr. rule could not be relied on as a bar or defence to such action. O'Brien On what other ground, therefore, besides the alleged ousting the Courts of their jurisdiction, can the rule in question be held to be illegal ? By agreeing to that rule, the plaintiff (as I have already observed) did not stipulate to do any illegal act, or to omit complying with any legal or moral obligation, but he merely stipulated thereby to relinquish a right which he was not obliged to exercise, and to refrain from bringing an action which (independent of that rule) he would be at liberty to bring or not as he thought fit ; and, according to the principles laid down by Mr. Justice Erie, in Livingston v. Ralli, 1 the plaintiff was at perfect liberty to enter into a contract for the observance of that rule, as he thereby i stipulated to do nothing but what he was at liberty to do.' It has been already observed that although similar rules have been adopted and put in force very decidedly, in various other religious communities in the kingdom, no case is known or reported to have occurred in which it was held or contended that they were illegal. With respect to the plaintiff's objection to the legality of this rule, on the ground that, while it prohibits a priest from bringing an action against his fellow- ecclesiastics for such slanderous words, it does not provide any other remedy for him, but leaves him without any means of obtaining redress for that wrong, I concur with my brother BARRY in opinion that there is nothing in the pleadings to warrant our assuming the fact of no other remedy being provided for the slandered party by the laws and discipline of the plaintiff's Church ; and that in the absence of any statement in the pleadings to that effect, the question of the legality or illegality of the rule should be considered without reference to the fact whether or not any such other remedy was provided. For This rule these several reasons, 1 am of opinion that the rule of the ??, not , * illegal. Roman Catholic Church, relied on in the defendant's re- joinder, is not illegal, and that, so far as regards that objection, the plaintiff's demurrer to that rejoinder should be overruled. I shall next consider the question how far, upon the fa?ts stated in the pleadings, the plaintiff's admitted violation of 1 5 E. & B. 132. 56 Court of Queen's Bench (Ireland). Mr. Justice O'Brien. Voluntary Churches may adopt rules of discipline and create tribunals. Decisions of such tribunals final in certain Jurisdic- tion of civil courts over such tribunals, that rule affected his position in his Church, and his right to hold the office of parish priest, from which he has been suspended. I have already referred to the general principle laid down in the cases I mentioned with respect to Churches or religious bodies not established by law. Those cases clearly decide, not only that the members of any such Church or body may adopt rules and regulations for enforcing discipline within their body, which will be binding on those who expressly, or by implication, have assented to them, but also, that the members of such Church or body may create a.n ecclesiastical tribunal (designated by Lord Eomilly as a domestic tribunal), for the purpose of trying ecclesiastical matters, and of determining whether the rules of that Church have been violated by any of its members, and what should be the consequence of such violation ; that the members of the Church may also agree that such tribunal should have the power of suspending, for such violation, any member holding a religious office in their Church ; and that the decisions of such tribunal should be final, whatever was their nature and effect. Those cases also show that the decision of such tri- bunal would be final when they had acted within the scope of their authority, and had observed such forms as the rules of its Church required. Those principles are more fully stated in the passages already read from the judgments of Lord Kingsdown in Long v. The Bishop of Capetown, 1 and of Lord Eomilly, in The Bishop of Natal v. Gladstone. 2 If such a domestic tribunal, acting under the power given to them by the express or implied agreement of the members of a Church, should sentence any clergyman of that Church to suspension from his office, on the ground of his having vio- lated any of the rules of that Church, it may in some cases be requisite, for a collateral purpose, that the constituted tribunals of the country should investigate the circumstances connected with that suspension, in order to ascertain that such tribunal had power to pronounce that sentence under tne rules and regulations of the Church by which that clergy- man agreed to be bound, and had, in pronouncing that sentence, proceeded in conformity with those rules and regulations. Thus the question of the validity of the suspen- sion may involve the right to property, as in the case already 1 Moore, P. C. C. (N. S.) 461. 2 L. R. 3 Eq. 49. Rev. Robert O'Keeffe v. Cardinal Cullen. 57 mentioned -df Long v. The Bishop of Capetown. 1 In that case Mr. Mr. Long had been suspended by his bishop from the office O'Brien of clergyman of a church in the parish of Mowbray in the colony of the Cape of Good Hope, to which office there was annexed the right to the enjoyment of property which had been vested in the bishop to provide a salary for the clergy- man of the parish. The bishop had appointed the Rev. Mr. Hughes to officiate in Mr. Long's place, and to receive half the income annexed to such office. Mr. Long took proceed- ings in the colonial civil court, for the purpose of restraining the bishop and Mr. Hughes, not merely from interfering with the performance of Mr. Long's duties as incumbent of the parish, but also from disturbing him in the enjoyment of his lawful emoluments as such incumbent. The bishop also had taken proceedings in the colonial civil court, for the purpose of restraining Mr. Long from occupying the church at Mow- bray, or otherwise interfering with the duties of the minister of that church. The decision of the colonial civil court was against Mr. Long. He appealed to the Privy Council, who reversed that decision, and Lord Kingsdown, in delivering their judgment in Mr. Long's favour, stated (p. 466) that the case was one which called ' for a decision as to the rights of property, and involved the question whether Mr. Long had ceased by law to be the cestui que trust of property of which the bishop was trustee.' [See also Lord Cranworth's judg- ment in Forbes v. Eden?] In the case now before us the question of the validity of the suspension is raised, not in a suit or action brought for the purpose of reversing it and restoring the plaintiff to his office, but in an action against the defendant for libel, on the ground that the defendant had pronounced and published the suspension and the interdict consequent on it, and that in so doing he had libelled the plaintiff. But in whatever manner the investigation of the circumstances connected with such suspension and interdict devolves upon the Court, I think it clearly follows, from the authorities referred to, that the questions for the Court to consider are, whether, according to Questions the laws, ordinances, and discipline of the Roman Catholic ^ r fcl ? e . ' Court in Church, the defendant had power to pronounce that suspension this case. and interdict ; and whether, in exercising that power, he had 1 Moore, P. C. C. (N. S.), 461. 2 L. E. 1 H. L. Scotch App. 568. 58 Court of Queen's Bench (Ireland) . Mr. proceeded in accordance with such laws, ordinances, and dis- O'Brien. Spline. In the case of Long v. The Bishop of Capetown, the cause assigned by the bishop for Mr. Long's suspension was that he had disobeyed the directions of the bishop by refusing to take part in the arrangements for the election of lay dele- gates to a synod for the diocese of Capetown. Mr. Long had been ordained as a clergyman of the Church of England, and the Privy Council were of opinion, upon the facts before them, that Mr. Long, in accepting his office from the bishop, had only bound himself to the doctrine and discipline of the Church of England; and that, for the purposes of the contract between the bishop and Mr. Long, they should be taken as having contracted that the laws of the Church of England should govern both so far only as they were applicable in the colony. 1 They were also of opinion that the obedience required by the bishop from Mr. Long with respect to the election of the synod was not in accordance with the rules and ordinances of the Church of England ; that Mr. Long was, therefore, justified in refusing to comply with those directions of the bishop, and that, accordingly, Mr. Long's refusal was not a valid ground for his suspension. [See also Lord Romilly's observations on this case in The Bishop of Natal v. Gladstone. 2 ] The case now before us is, however, Pkintift different, as it appears from the facts stated in the pleadings blfbound ( an< ^ wn i c ^ on this argument we must assume to be true), by this that the rule of the Catholic Church violated by the plaintiff was one of those by which he had agreed to be bound. Reference was made during the argument to that part of Lord Kingsdown's judgment, 3 in which, with reference to the decisions of the ecclesiastical tribunal appointed by the members of any non- established Church, he states to the effect that, in order to render such decision binding, it was requisite that the tribunal should have acted within the scope of its authority, and have observed such forms as the rules prescribed (if any forms were prescribed), and if not, then should have proceeded in a manner consonant with the principles of jus- tice. With respect, however, to the case before us, it is to be observed not only that all the proceedings taken by the de- fendant on the inquiry before him are stated in the pleadings 1 1 Moore, P. C. C. (N. S.) 463. * L. E. 3. Eq. 46. 1 Moore, P. C. C. (N. S.) 461. Rev. Robert O'Keeffe v. Cardinal Cullen. 59 to have been in accordance with the laws, ordinances, and Mr. discipline of the Koman Catholic Church, but also that Q^ there is nothing in the pleadings to show that such pro- ceedings were not consonant with the principles of justice. Proceed- The omission of any statement that a formal citation to c^inai attend the inquiry was served upon the plaintiff has according been relied on ; but it is expressly stated in the special de- O f ch^ c h fences that the plaintiff, having had notice of the investiga- tion and inquiry, appeared before the defendant on the same, and defended his proceedings and conduct, that the defendant heard all that the plaintiff had to say in relation to the said matter, and that the said inquiry and investigation were afterwards, in pursuance of the said laws, ordinances, and discipline, adjourned to a future day, of which the plaintiff had notice, and at which he was required to attend. In my opinion, these statements supply the omission of any state- ment of the service of a formal citation. The Case of Dr. Warren (reported in Grindrod's Compen- Dr. dium, 1 which report is stated by Lord Kingsdown in Long v. ^^ The Bishop of Capetown 2 to be accurate), further shows what questions we are to consider in inquiring into the validity of the suspension of a clergyman of a non-established Church. Dr. Warren had been suspended by a Wesley an Methodist District Committee from his office of a preacher in a chapel in Manchester, and he filed a bill in the English Court of Chancery against the trustees of the chapel and others, for the purpose of being restored to the exercise of his minis- terial functions, and for an injunction to restrain them from excluding him from the chapel. His application for an injunction was refused by Vice-Chancellor Shadwell, and also by Lord Chancellor Lyndhurst, on appeal. In Lord Lyndhurst's judgment (p. 394), he said that the question was first, whether the District Committee had power to suspend a preacher ; and, second, whether they had regularly exercised that power. Lord Lyndhurst then reviewed the evidence in the case as to the constitution and rules of the society, and came to the conclusion that the committee had power to suspend, and that they had exercised that power in accordance with those rules. It appears from the 1 Compendium of the Laws of Wesleyan Methodism (E. Grindrod), 371. * 1 Moore, P. C. 0. (N. S.) 462. 60 Court of Queen's Bench (Ireland). Mr. report 1 that one ground relied on as justifying Dr. Warren's O'Brien, suspension was that, having attended a meeting of the Com- mittee, held for the purpose of investigating some charges against him, he afterwards withdrew, and refused to attend his trial, whereupon the Committee suspended him, because he had so refused and did not choose to attend the investiga- tion of his case. Lord Lyndhurst considered that to be a suspension for ' contumacy,' and that the committee had power to inflict it. In a subsequent part of his judgment, observing upon the fact that no evidence of the charges appeared to have been gone into, Lord Lyndhurst said ' He presumed that was because Dr. Warren was absent and did not choose to attend ; that whether the evidence supported the charges or not was a question for the District meeting, and that he had no jurisdiction with respect to it.' He further stated that, whether the committee acted wisely, discreetly, temperately or harshly, were matters with which he had no concern, and on which he desired to express no opinion : and that on the two grounds merely of the regularity of the proceedings and his being satisfied of the authority of the body, he was bound to affirm the Yice- Chancellor's decision. 1 If, therefore, the defendant, under the laws, ordinances, and discipline of the Roman Catholic Church (by which the plaintiff agreed to be bound), had power and authority to inquire into and investigate the plaintiff's conduct and to pronounce the sentence of his suspension, and if the defen- dant had regularly exercised that power in accordance with such laws, ordinances, and discipline, then it would follow from the foregoing authorities, that we should hold the suspension valid subject, however, to the question raised as to the illegality of the Pope's rescript of May, 1871 upon which question my opinion is different from that expressed by my brothers BARRY and FITZGERALD. As to With respect to this question the plaintiff's counsel con- rescri t ^ en ^ that the fact of the defendant's acting and proceeding under that rescript was an affirmance, maintenance, and assertion by him of the spiritual and ecclesiastical power, jurisdiction, and authority of a foreign prelate or potentate, and was, therefore, illegal, under the 5th & 12th sections of 1 Compendium of the Laws of Wesleyan Methodism (E. Grindrod), 407-8. Rev. Robert O'Keeffe v. Cardinal Cullen. 61 the Irish Statute 2 Elizabeth, c. 1, which have been already Mr. stated. The severe penalties imposed by the 12th section of O'Brien. that statute upon the affirmance or assertion of such spiritual or ecclesiastical jurisdiction or authority were repealed by the Religious Opinions Relief Act of 1846, 1 which, however, Proviso provided that nothing in that enactment contained should O f authorise or render it lawful for any person to affirm, main- tain &c., &c., any such foreign power, jurisdiction, or authority, and that the said enactment should not extend further than to the repeal of the particular penalties and punishments referred to in the said Statute of Elizabeth, but that in all other respects the law should continue the same as if that enactment had not been made. The plaintiff's counsel rely on that proviso as establishing that the main- tenance, affirmance, or assertion of such spiritual or eccle- siastical jurisdiction or authority continued after that Act of 1846 to be as illegal as it was before, although the penalties on it were repealed ; and they contend, accordingly, that although the issuing of such rescript, and the defendant's power to proceed thereunder, were (as stated in the pleadings) in accordance with the laws, ordinances, and discipline of the Roman Catholic Church by which the plaintiff had agreed to be bound, and although the plaintiff himself attended on the inquiry and proceedings thereunder, he is, nevertheless, now entitled to insist, as against the defendant, that the defendant had no jurisdiction or authority authorising or empowering him to hold such inquiry or to declare the plaintiff suspended, and that, accordingly, such sentence of suspension was illegal and void. It is admitted that if, at and immediately before the passing of the Act of 1846, the exercise, affirmance, or assertion of the merely spiritual authority expressed to be conferred by such a rescript as that before us was illegal and void under the Statute of Elizabeth, then that the Act of 1846 would not have rendered it legal; but I think it equally clear that, if (by reason of legislation subsequent to that Statute of Elizabeth) such a rescript and the affirmance and assertion of purely spiritual authority under it could not (consistently with such legislation) be considered as illegal at the passing of the Act of 1846, then that that Act did not render such rescript, affirmance, or assertion illegal, or revive 1 9 & 10 Viet. c. 59. 62 Court of Queen's Bench (Ireland) . Mr. Justice O'Brien. Effect of proviso. Nature of Papal rescript. in that respect the Statute of Elizabeth, but that the question of the legality or illegality of such rescript, affirmance, or assertion continued to be the same after as it had been before the Act of 1846. That Act did not in terms provide that every affirmance or assertion of spiritual or ecclesiastical jurisdic- tion, authority, &c., &c., which was illegal at the time of passing the Statute of Elizabeth, should be illegal after the passing of the Act of 1846 ; but the effect of the proviso was, that if any such affirmance, assertion, &c., was illegal at the passing of that Act of 1846, it continued to be so after that Act was passed. With respect to the nature and import of the ordinance or rescript in question, it was one purely spiritual in its character : it related to the usages and discipline of the Roman Catholic Church : it did not purport to be addressed to or to affect any who were not voluntary members of that Church : and it related to the conduct of a priest of that Church who had agreed to be bound by its laws, ordinances, and discipline, in accordance with which it is admitted on the pleadings that it was issued. It is true that the proceedings under that rescript as to the religious office held by the plaintiff would incidentally affect his temporal interests. But in every case where proceedings are taken by the authorities of a Church, which may terminate in the sus- pension of any of its members from a religious office in that Church, such proceedings might incidentally affect his temporal interests. There is no religious body in which religious offices do not, in a certain degree, conjoin with temporal interests ; and the authorities which have been referred to show that, notwithstanding such conjunction, the power of suspending from religious offices in any Church is recognised as existing in those tribunals in whom the members of that Church have consented and agreed it should be vested. It further appears that complaints had been made of the conduct of the plaintiff in relation to his religious office in his Church ; and I need not say that it is essential for the proper order and regulation of the spiritual affairs of every Church tolerated by the State that there should be some tribunal to investigate and decide on such complaints. With respect to the Roman Catholic Church and the various other religious bodies not established by law, Rev. Robert O'Keeffe v. Cardinal Cullen. 63 such, complaints as those made against the plaintiff could Mr. not be investigated by any civil or other tribunal recognised ^" st . lce as such by the law of the land, but only by a tribunal appointed for that purpose by the respective laws and ordinances of such religious bodies a tribunal which (to use the words of Lord Romilly in The Bishop of Natal v. Gladstone 1 ) may be regarded, not as a State tribunal, but as a domestic tribunal claiming jurisdiction only over those per- sons who assented to it, and claiming that species of juris- diction which Lord Romilly designated as what is usually called ' consensual jurisdiction.' In the case now before us the complaint against the plaintiff was referred by that rescript to a prelate of his Church, and there is nothing to show that the selection of such a tribunal was not fit and proper for the purpose. With respect, then, to the effect of this Statute of Effect of Elizabeth upon the rescript in question, and the proceedings Statute of thereunder, I am of opinion that so far as that statute would upon have formerly applied to such rescript and proceedings, it r^ 11 ? 1 - would be altogether inconsistent with a long course of sub- sequent legislation if we held that they were now illegal under that statute. It is true that during the reign of j n time of Elizabeth, and several subsequent reigns, the several penal- Elizabeth ties of that statute would have attached upon any affirmance wou ld or maintenance of the fact that the Pope was the spiritual have , , head of those who belonged to the Roman Catholic Church. But during that period the Roman Catholic religion, both in England and Ireland, was proscribed under severe penalties by various other statutes, to which I need not refer in detail. The oath which during that period Roman Catholics might by some of those statutes have been required to take, in . order to avoid various penalties, contained an express denial that any foreign prelate or person had or ought to have any jurisdiction or pre-eminence, ecclesiastical or spiritual, within this realm, and the legislation requiring them to take that oath (which, as Roman Catholics, they could not take) was quite consistent with the enactments of that Statute of Elizabeth. But when, by subsequent legislation, the free Subse- exercise of the Roman Catholic religion was expressly tole- 2 UP . n , t . f . legislation rated ; when Roman Catholics were exempted troni various permitted 1 L. K. 3 Eq. 40. Court of Queen's Bench (Ireland). Mr. Justice O'Brien. exercise of Roman Catholic religion, and therefore assertion of mere spiritual authority permitted. Supremacy of Pope part of Roman Catholic creed. Papal rescripts essential for ap- pointment of Roman Catholic bishops. penalties, to which they had been formerly liable, for the profession of their religion, and when, by various statutes, commencing with that of 1773, and ending with the Eman- cipation Act of 1829, the oath required to be taken by Roman Catholics for admission to various offices omitted any denial of the spiritual or ecclesiastical jurisdiction or authority of the Pope (the affirmance or assertion of which had been declared illegal by the Statute of Elizabeth), could it, after such legislation, be said that the affirmance or asser- tion by Roman Catholics of such merely spiritual or ecclesias- tical authority (which was an essential part of their creed) continued to be illegal, and rendered them liable to the severe penalties of that statute ? In considering the effect of those subsequent statutes, we must have regard to the fact (of which no doubt can be entertained) that the Legislature, when passing them, were aware of several of the well-known doctrines and rules of the Roman Catholic Church. The recognition by Roman Catho- lics of the spiritual supremacy of the Pope as their spiritual head was a well-known part of their creed ; the appointments of Bishops or Vicars-general in these countries all emanated from the Pope, and were made by bulls, rescripts, or letters apostolic issued by him ; the jurisdiction to make those appointments, and the spiritual authority which they pur- ported to confer, were recognised by the Roman Catholics, and were essential to the due administration of the spiritual affairs of their Church; and it was equally essential for that purpose that the Roman Catholic Bishops and Vicars-general in these countries should be allowed to receive from time to time, from the recognized head of their Church, rescripts or letters, containing such directions or communications as were required for the proper administration of those spiritual affairs. When, then, with knowledge of those several mat- ters, the observance of the Roman Catholic religion in these countries was tolerated, when the Legislature declared that Roman Catholics should no longer be required to take the oath denying the spiritual or ecclesiastical supremacy of the Pope ; and when, accordingly, in framing the oath to be taken by Roman Catholics, the Legislature struck out from the former oath the words ' ecclesiastical or spiritual,' and inserted in place of them the words ' civil or temporal,' may Rev. Robert O'Keejfe v. Carditial Cullen. 65 it not be truly said that the law and Legislature of the Mr. country not only recognized and sanctioned the fact, that /^> st - ice persons professing the Eoman Catholic religion looked up to ' the Pope as their ecclesiastical and spiritual superior, but ^egisla- also iuipliedly permitted that such several communications impliedly as I liave mentioned might be made between the Pope and ? the prelates appointed by him ? In support of the opinion I have expressed as to the effect of these legislative measures subsequent to the Statute of Elizabeth, I will now refer to several statements which, on the discussions in the House of Lords as to the passing of this repealing Act of 1846 appear to have been made by Lord Lyndhurst (then Lord Chancellor), and by Lord Campbell, of their opinions upon the question how far the How far introduction of the Pope's bulls or rescripts into this coun- Scripts try, and the affirmance or assertion by Roman Catholics of considered the mere spiritual and ecclesiastical jurisdiction or authority \^f^ of the Pope were then illegal. I refer to them, not of course as judicial decisions, or as governing authorities, but aa statements made by judges of eminence, as to the then state of the law with respect to matters then before them in their legislative capacity. Some of those observations refer to the English statute, 1 which prohibited the introduction of the Pope's bulls or rescripts, and which did not extend to Ire- land ; but such observations are equally applicable to the question before us upon the Irish statute 2 Elizabeth, c. 1, which corresponds with the English statute 1 Elizabeth, e. 1. In the 85th vol. of Hansard (p. 1261), it appears that Lord Opinion Lyndhurst, with reference to the statute of the 13 Elizabeth, klnd^ stated as follows : hurst. ' They tolerated the Catholic prelates, and they knew that these pre- lates could not carry on their Church establishment or conduct its discipline without holding communication with the Pope of Rome. No Roman Catholic bishop could be created without the authority of a bull from the Pope of Rome, and many of the observances of their Church required the same sanction. The moment, therefore, that they sanctioned the observances of the Roman Catholic religion in this country, they, by implication, allowed the communication prohibited by this statute, and for which it imposed the penalties of high treason. If the law allowed the doctrine and discipline of the Roman Catholic 1 13 Eliz. c. 2. F 66 Court of Queen's Bench (Ireland). Mr. Church, it should be permitted to be carried on perfectly and properly ; Justice an( j ^at cou j(j no t b e without such communication.' OBnen. On a subsequent occasion, after referring to the oath im- posed by the Act of Elizabeth upon persons holding certain offices, and in which it was sworn that no foreign prince, prelate, or potentate had or ought to have any ecclesi- astical or spiritual dominion in these realms, Lord Lyndhurst said : ' That oath was in force until of late years. Their Lordships them- selves had altered that oath they had altered it out of deference to persons professing the Roman Catholic religion. They found it impos- sible to impose such an oath upon their fellow-countrymen, and accord- ingly they struck out the words " ecclesiastical and spiritual," and in- serted in place of them " civil and temporal." After this, did it not appear clear that the law and the Legislature of the country had by this change sanctioned the doctrine that persons professing the Roman Catho- lic religion looked up to the Pope as their ecclesiastical and spiritual superior ? Did not their Lordships themselves allow it ? By this alteration in the oath, had they not permitted and sanctioned it? When they had allowed the free exercise of the Roman Catholic re- ligion in this country, and when they knew that this was a funda- mental principle of that religion, how could they say, consistently with themselves, that when the professors of that religion faithfully discharged their duty by maintaining and defending this foreign ecclesiastical and spiritual authority, they would subject those persons to the penalties of high treason 7' 1 Again, Lord Lyndhurst states : ' It was no crime in a prelate of the Roman Catholic Church to maintain and defend the supremacy of the Pope ; if he did it for mischievous purposes, and circulating immoral doctrines and opinions, he was liable to punishment by the common law ; but if he merely maintained and defended, as he was bound to do, the spiritual authority of his superior, then he was guilty of no offence against the laws of his country.' 2 And again (with respect to the right of the Eoman Catholics to maintain and defend the supremacy of the Pope in spiritual matters), he stated : * It was no offence at common law for them to do so. But on the other hand, he said that if any person improperly, wantonly, or sedi- tiously called in question the supremacy of the Crown of England 1 Hansard (3rd series), rol. 86-311. 2 Ibid., p. 314. Rev. Robert O'Keeffe v. Cardinal Cullen. 67 and that, it wa3 to be observed, included the temporal as well as the Mr. spiritual power of the Crown if any person, from any improper motive /^.T^- 10 or purpose, or in any improper manner, questioned that supremacy, then that person would be liable to a prosecution at common law.' 1 The only other statement of Lord Lyndhurst to which I shall refer is the following one : ' It Avas quite impossible for a moment to contend, after the various Acts that had been passed with reference to the Roman Catholic reli- gion, after the facilities given for the performance of the duties of that religion, and above all, that material alteration in the oath of supremacy in favour of the Roman Catholics, and in permission of their principles - it was quite impossible, he said, for any person to maintain that a Roman Catholic, moderately and temperately maintaining the supre- macy of the Pope in ecclesiastical matters, could be considered as offending against the laws of this country.' 2 Lord Campbell also states as follows : Opinion of Lord ' With regard to the question whether, after these penalties should Campbell, be abolished, a Roman Catholic could assert the spiritual supremacy of the Pope, he should say, that undoubtedly would and ought to be the case that supremacy being only the spiritual supremacy, and not implying any temporal control or power in this country. If any bull should be issued calling upon the subjects of this country to act in any manner contrary to law, the persons importing such a document and the persons obeying such injunctions would be liable to punishment.' 3 I repeat, what I have already stated, that I do not refer to those statements of Lord Lyndhurst and Lord Campbell as judicial decisions or governing authorities ; but the deli- berative and positive opinions of two such eminent judges are entitled to serious consideration, and should not be dis- regarded without sufficient reason. And I refer to those statements as containing a clear expression of their opinion of the then state of the law upon the question how far, either under the statutes of Elizabeth or under the common law, such rescripts as that before us, and the exercise of merely spiritual authority under them, continued to be illegal at the time when that Act of 1846 was under discussion. As a further instance of legislation wholly inconsistent 1 Hansard (3rd series), vol. 86, p. 314. * Ibid., p. 591. * Ibid., p. 321. F 2 68 Court of Qiieen's Bench (Ireland). Mr. witli the supposition that every affirmance or assertion of O'Brien. ^ ne spiritual and ecclesiastical jurisdiction or authority of the Pope (though confined exclusively to the spiritual affairs 7 & 8 Viet. f the Roman Catholic Church) was illegal at the time of c - 97, passing: the Act of 1846, I refer to another Act which had sllOWS til; it assertion been passed two years previously, namely, the Irish Cha- aiuhont rital:)le Donations and Bequests Act of 1844. 1 The 2nd was not section of that Act provided for the appointment of Commis- iiiejral in sioners to administer it, of whom three were to be ex-officio members, and ten were to be appointed by the Crown, of which ten persons, five and not more, were at all times to be persons professing the Roman Catholic religion. Under the provisions of the 6th section the consideration of all cha- ritable donations and bequests, and matters relating to them, on which any question should arise concerning the usages or discipline of the Church of Rome, should be referred to a committee consisting of the Eoman Catholic Commissioners ; and that committee was directed, in cer- tain cases, to certify to the Commissioners what person was, according to the uses and intendments of the Roman Catholic Church, entitled for the time being to take the benefit of any donation or bequest ; and also to certify any other facts concerning the usages or discipline of that Church, necessary to be known for the due administration of the trust according to the intent of the donor, and the Com- missioners were directed to receive such certificate as evidence of the facts certified. The 15th section empowers every person to grant by deed or will any land or personal pro- perty to the Commissioners in trust (amongst others) for 1 any archbishop or bishop or other person in holy orders of the Church of Rome, officiating in any district or having pastoral superintendence of any congregation of persons pro- fessing the Roman Catholic religion, and for those who shall from time to time so officiate, or shall succeed to the same pastoral superintendence, or for building a residence for his and their use.' And that section further provided that such property should be held by the Commissioners, subject to the trusts of said deed or will respectively, without any other license. Then follows the clause excluding donations or bequests in favour of male monastic orders. 1 7 & 8 Viet., c. 97. Rev. Robert O^Keeffe v. Cardinal Cullen. 69 Considering- these several provisions of the Act, can it be Mr. Said that it could be duly and properly administered, consis- tently with the supposition that all rules, rescripts, and letters apostolic from the Pope, and every affirmance, main- tenance, or assertion of spiritual or ecclesiastical authority under them, were illegal at the time of passing that Act ? Supposing that property was vested in the Commis- sioners under the 15th section, in trust 'for any Roman Catholic bishop officiating, or having such pastoral superin- tendence in any particular district,* and for those * who should from time to time so officiate or succeed to the same pastoral superintendence,' or in trust for building a resi- dence for them, the right of any person claiming the benefit of such trust as being the Roman Catholic bishop officiating in that district, would, according to the usages and discipline of that Church, depend entirely upon his having been appointed under a bull, rescript, or letter apostolic, issued A bishop by the Pope ; and the Commissioners, on being satisfied that property the claimant had been so appointed, would be bound, under unde * the 15th section, to give him the benefit of that trust. It is mus t be* true that the Commissioners might come to that conclusion, appointed upon its appearing that the claimant was in fact the person rescript* officiating as Roman Catholic bishop in that district, and without their requiring other proofs of his appointment ; but their conclusion would, in fact, rest upon the supposition that he had been so appointed ; and, in either case, the act of the Commissioners in giving to the claimant the benefit of that trust would be necessarily founded on the supposi- and thus tion that such a bull or rescript had been issued by the Pope authority claiming spiritual jurisdiction to make that appointment, and asserted. also on the supposition that the claimant, by accepting the appointment under that bull or rescript, and claiming (as the Roman Catholic bishop in that district) the benefit of that trust, had thereby expressly affirmed and maintained the spiritual and ecclesiastical authority of the Pope. In the event of the death or resignation of any bishop enjoying property under that trust, a similar duty would devolve upon the Commissioners of ascertaining who was entitled to that property as his successor, and their decision would be grounded upon similar suppositions. If, again, property was vested in the Commissioners in trust for the parish. 70 Court of Queen's Bench (Ireland). Mr. Justice O'Brien. A priest must be duly appointed by a bishop having authority from Pope, so that papal au- thority is recognised. No distinction between papal rescripts. priest of any parish, the Commissioners, in administering that trust, should act upon the supposition that the party claiming the benefit of it had been appointed to that parish by his bishop, and that the bishop in making that appoint- ment affirmed, claimed, and exercised the spiritual juris- diction and authority expressed to be conferred upon him by the bull or rescript &c. under which he himself had been appointed bishop. In either of those cases, whether the property was vested in trust for a Roman Catholic bishop or parish priest, the decision of the Commissioners as to the due administration of that property according to the provisions of the Act, would necessarily involve their recog- nition of the fact that the bishop had asserted and exercised the spiritual and ecclesiastical authority expressed to be conferred upon him by the Pope's bull or rescript, although, according to the argument of the plaintiff's counsel, such bull or rescript would be void, and every episcopal act done by the bishop under that appointment, in ordaining clergy- men, appointing parish priests, or otherwise, would be illegal, as being an affirmance of the spiritual and ecclesias- tical authority of the Pope to make that appointment. Cases might also frequently occur, on references to the Roman Catholic committee under the 6th section, in which not only their certificate as to the usages or discipline of the Roman Church, but also the proceedings of the Commis- sioners on that certificate, would also necessarily involve the assumption that spiritual authority, in regard to the usages and discipline of the Roman Catholic Church, was exercised by the Pope over the members of that Church in this country, and was recognised and assented to by them. It has, however, been suggested that any inferences to be drawn from these provisions of the Bequests Act in favour of the legality of bulls and rescripts from the Pope should be confined to those that were issued for the appointment of bishops, and should not apply to rescripts such as that in question ; but I do not see how, in considering the effect of those provisions as indicating the opinions of the Legisla- ture, we could reasonably make such a distinction. Those provisions show that, in the opinion of the Legislature, the appointment of bishops by the Pope's bulls and rescripts, the acceptance by the bishops of those appointments, and Rev. Robert O'Keeffe v. Cardinal Cullen. 71 their exercise of the authority expressed to be thereby Mr. conferred upon them, were not illegal, though they had been O'Brien. formerly so. And can it be reasonably contended that if a rescript or letter was issued by the Pope to a bishop after his appointment, authorising him (like the rescript in question) to discharge some duty or do some act relating only to the spiritual affairs of the Church, then, the acting of the bishop under that rescript would be illegal and void ? The Legislature by that Act expressly provided for the Bishops beneficial enjoyment of property by bishops of the Roman permTtted Catholic Church, and imposed upon the Commissioners the to hold duty and obligation of holding and administering such pro- ^bishops. perty in trust for those prelates. This was done with full knowledge by the Legislature of the fact that the claims of those prelates to the benefit of that trust would necessarily be founded upon their having been appointed bishops by Bishops bulls or rescripts from the Pope, and upon their having appointed accepted and acted under such appointment ; and these pro- n iy by visions were made although the exercise of the spiritual rescript, authority thereby recognized would incidentally affect the right to property and involve matters of a temporal character. It is, therefore, but reasonable to hold, that by so that these provisions the Legislature impliedly allowed and meLt*' sanctioned the doctrine, that in case not only of bulls or impliedly rescripts for the appointment of bishops, but also of all these 1 **' such rescripts as that in question, of a purely spiritual papal character, the parties to whom they were addressed might, without illegality, and notwithstanding the former state of the law, affirm and exercise the spiritual authority expressed by such documents to be conferred upon them. And it will be seen that the observations of Lord Lyndhurst, in 85th Hansard, p. 1261, to which I have already referred, apply, not only to bulls or rescripts for the appointment of bishops, but also to all communications between the Pope and the bishops, that were requisite for the proper administration of the spiritual affairs of their Church. It has been further urged by the plaintiff's counsel that the fact of the statute of 1846 repealing only that portion of the Statute of Elizabeth which inflicted the penalties therein mentioned would imply that the rest of that statute continued in force ; that whatever was declared to be illegal by it con- Court of Queen's Bench (Ireland). Mr. Justice O'Brien. Act of 1846 applied only to rescripts for illegal purposes. Ancient statutes tinned to be illegal after the Act of 1846 ; and that other- wise there would be nothing for the proviso in the Act to operate upon. In answer to this, however, it is to be observed that the legislation intervening between the Statute of Elizabeth and that of 1846 could not be relied on as im- pliedly rendering lawful any bulls, rescripts, &e. which (as stated by Lord Lyndhurst and Lord Campbell) might be circulated or acted on for any of the mischievous or improper Proviso in purposes they mention ; that, accordingly, at the time of passing the Act of 1846, the circulating or acting on such bulls, rescripts, &c., for such purposes would be then illegal, as well under the Statute of Elizabeth as under the com- mon law, and would, under the said proviso in the Act of 1846, continue after the passing of that Act to be as illegal as it had been before. It follows, therefore, that this proviso in the Act would not be rendered inoperative by holding that such rescripts as that in question, and the exercise of merely spiritual authority under them, though formerly illegal, were not illegal when that Act was passed. We have been also referred to various statutes, passed donotlnow before the Reformation (16 Rich. II., c. 5, and the previous a ppty statutes of Edw. III.), and to some cases formerly decided with respect to the authority and jurisdiction claimed by the Pope, and to bulls, rescripts, &c. issued by him. When, however, those statutes were passed, considerable territorial possessions and other descriptions of property were annexed to bishop- rics, benefices, and other ecclesiastical offices ; and the asser- tion of the Pope's authority to appoint to such bishoprics, benefices, and offices, by his bulls or rescripts, without the concurrence of the Crown, involved the assertion of his au- thority to dispose of and affect the rights of property in this kingdom, which it was insisted could not be done without the concurrence of the Crown, as the supreme authority in the realm. At that time, also, several of the bulls or rescripts, and assertions of the Pope's authority, which were referred to in those statutes, directly involved and concerned other mat- ters of a temporal character. But the case was different when the Pope's appointments to bishoprics or other ecclesias- tical offices no longer carried with them or affected any right to property ; when the bulls and rescripts issued by the Pope were merely of a spiritual character, and did not purport to as ecclesi- astical offices not now connected with property. Ber> Robert O'Keeffe v. Cardinal Cullen. 73 deal witli any matters of a temporal character, and when the Mr. only authority or jurisdiction expressed to be conferred thereby O'Brien was a spiritual authority over the members of his own Church, who voluntarily submitted to it. It is further to be observed that, whether the illegality which formerly affected such re- scripts as that now in question, and the exercise of the spiritual authorities thereby conferred, was under the Statute Rescripts of Elizabeth or under the previous statutes, still the subse- on ] y quent legislation to which I have referred would furnish the spiritual same grounds for holding that such illegality no longer con- tinues; and the opinions expressed by Lord Lyndhurst and Lord Campbell as to the effect of that subsequent legislation would equally apply. The Ecclesiastical Titles Act of 1851 l was also referred to Statute in the argument. That Act, however, was passed with reference ykt c GO to such bulls, briefs, rescripts, or letters apostolic from the referred Pope as purported to appoint archbishops or bishops with certain & territorial titles, as archbishops or bishops of any city, place, class of &c. in the United Kingdom, and it declared them to be unlawful and void. It did not, however, contain any such declaration with respect to other bulls, briefs, rescripts, &c., whether they were issued for the appointment of bishops with- % out such territorial titles, or were issued for any other purpose of a purely spiritual character ; and so far as any inference can be drawn from the omission in that Act of any reference to such other bulls, briefs, rescripts, &c., it would rather im- ply that the Legislature did not consider them to be unlawful or void. That Act of 1851 was itself repealed by the 34 and That Act 35 Viet. c. 53 (1871), with a proviso that such repeal should not authorise the conferring of any rank, authority, &c., &c. on or over any subject of this realm, by any person in or out of this realm other than the sovereign thereof. Independently, however, of any reference to these two Rescript latter statutes, and whatever inferences may be drawn from and^ro- them, I am of opinion that, although such rescripts as that ceedings now in question, of a purely spiritual character, and the "o t ei exercise, affirmance, or assertion of the spiritual power or illegal, authority expressed to be thereby given, were formerly illegal, they were not so when the Act of 1846 was passed, and con- sequently, are not now illegal ; and that, therefore, the 14 & 15 Viet. c. 60. 74 Court of Queen's Bench (Ireland). Mr. rescript in question, and the inquiry and proceedings under O'Brien, i*? were no * illegal or void. It would follow from this (for the reasons I have already mentioned) that, upon the facts stated in these four special defences, the judgment and sentence of suspension were valid; and the further result would, in my opinion, be that those defences should be held good in law. Two of them (the llth and 12th) are pleaded as 'justification.' An objection has been raised to the llth defence, on the ground that it adopts the meaning attributed to the publication by the innuendo in the 2nd count, and alleges that plaintiff had been * legally' suspended from and deprived of his office. But as the rescript, in my opinion, is not illegal, I think the aver- ment in that defence that the judgment and sentence were ' conformable to the laws, ordinances, and discipline' of the Eoman Catholic Church sufficiently sustains the allegation that the plaintiff had been 'legally' suspended. There is, in fact, no tribunal constituted by the laws of this country for the suspension of a clergyman either of the Roman Catholic Church or of any other non-established Church ; and there is 110 power or machinery whatever for effecting such suspension except what is prescribed by the rules and regulations of those several Churches. This objection does not apply to the 12th defence, which does not use the word 'legally' with reference to the suspension, as the 3rd count, to which that de- fence is pleaded, did not by any innuendo ascribe to the judg- ment and sentence the meaning that the plaintiff had been ' legally ' suspended ; and I agree with the opinion already ex- pressed, that, even if the rescript was illegal, the 12th defence should still be held good upon the facts stated in it. Pleas of The other defences (9th and 10th) are on the ground good 6S ^at the publication of the judgment and sentence complained of was a ' privileged communication.' Those defences have been fully stated and commented on by my brother BAEKT; and I concur with him in opinion that, even supposing the rescript to be illegal, those defences should, nevertheless, be held to be good as pleas of privilege. Amongst other state- ments in those defences, it is stated that the plaintiff, when he was appointed parish priest, had agreed to be bound by the laws, ordinances, and discipline of the Roman Catholic Church ; that according to such laws, ordinances, and disci- Rev. Robert O'Keeffe v. Cardinal Cullen. 75 pline the defendant had power and authority (of which the Mr. plaintiff had notice) to inquire into and investigate the pro- o'Brien. ceedings and conduct of the plaintiff, and did so inquire and investigate ; that the plaintiff, having had notice of such investigation and inquiry, appeared before the defendant at same and defended his proceedings ; that the defendant heard all that the plaintiff had to say in relation to those matters ; that the judgment and sentence subsequently pro- nounced by the defendant were in accordance with the laws, ordinances, and discipline of the Eoman Catholic Church; and that the defendant published the said judgment and sentence bond fide and without malice, and believing them to be true. With respect to the 4th count (complaining of the publi- cation of the interdict), it will be seen that the questions arising on the 16th and 17th defences thereto, and on the replications and rejoinders thereon, are substantially the same as those arising on the 9th and 10th defences and on the sub- sequent pleadings in that line ; and that in like manner the questions arising on the 18th defence to the 4th count, and on the subsequent replications and rejoinders thereon, are sub- stantially the same as those arising on the llth defence and the subsequent pleadings thereon, and that therefore the decision on both sets of pleadings should be the same. I am accord- ingly of opinion that our judgment on both sets of pleading should be in the defendant's favour. WHITESIDE, C. J. : In this case there are some questions to be decided The interesting only to the parties litigant. Other questions of a j ^ constitutional character are involved, of paramount import- ance as affecting the administration of justice to all classes of her Majesty's subjects in this country. The plaintiff is a Facts of priest in holy orders in the Church of Eome in Ireland, and the case> occupies the position of parish priest of Callan, an office of trust and profit, with which he formerly held the office of Eoman Catholic chaplain in the Callan Union Workhouse, an office also of trust and profit ; and he seeks compensation, in the way of damages, for injuries alleged to have been suffered by him in his sacred profession and character, by reason of the writing and publishing of two defamatory libels 76 Court of Queen's Bench (Ireland}. The by the defendant, resulting, according to tlie averments in Justice 6 three of the counts, in his dismissal from his valuable office of chaplain to the Callan Union Workhouse. It has not been disputed that since the passing of the several statutes securing the toleration of religious opinions in these kingdoms, and the free exercise of religious worship among all religious denominations of Christians, the status and position of a Roman Catholic priest, especially when entrusted with the pastoral charge of a particular district or parish, has been recognised and protected by law. The plain- Pleadings, tiff here alleges that he occupied that position, and claims to be protected in the lawful exercise of the functions attached to it, and he seeks redress against the defendant, whom he charges to have contrived and intended to injure him by falsely and maliciously writing and publishing of him certain defamatory words, described in one count (the 1st), as attributing to him that he (the plaintiff), was not fit to fill the office of parish priest, or to officiate as such, and had so misconducted himself as to render himself unfitted for the said office, and tnat he ought to be deprived of the same ; and as put in another count (the 2nd) that he had been legally suspended from and deprived of his office of parish priest ; and as put in the 4th count that he had been legally suspended, and had ceased to have any right to discharge the functions of a parish priest, and had disregarded the rules of the Eoman Catholic Church, binding on him as such parish priest. The libel as set forth in the 3rd count has no par- ticular meaning attached to it, but is a written declaration of suspension of the plaintiff from every ecclesiastical office and function, until he comes to his right mind, and makes full satisfaction to the Church, in the opinion of the defendant ; and is, moreover, a written declaration of the plaintiff's being deprived of all benefit, dignity, or rank conferred on him by the Church to which he belongs. To all these counts (except the 1st) there are pleaded defences in the nature of pleas of justification. To the 1st count there is no justification, but there are several special defences (the 9th, 10th, the 16th and 17th) pleaded to the several counts which rely on the libel being what is called a 'privileged communication,' by reason of its being the interest and duty of the defendant to publish on a Rev. Robert O'Keeffe v. Cardinal Cullen. 77 lawful occasion the sentence, as already described, of suspen- The sion and deprivation. To these several defences by way of justice! justification and privilege there are pleaded two replications, substantially to the effect that according to the laws of the Roman Catholic Church it was not lawful to pronounce the judgment or sentence of suspension in the defences mentioned, unless or until the plaintiff should have committed some violation of the laws, ordinances, and discipline of the Roman Catholic Church; that the sentences of suspension pronounced against the plaintiff were pronounced against him solely on the ground that the plaintiff had, as a subject of the Queen and as he lawfully might impleaded certain ecclesiastics in her Majesty's courts of law in Ireland, in respect of action- able wrongs and injuries complained of by the plaintiff, within the jurisdiction of the courts of law, and for no other reason or ground whatsoever; that the plaintiff as he law- fully might disregarded the said suspension, and celebrated mass that his doing so was the offence in respect of which the Pope's ordinance was issued, and the inquiry and sentence held and passed ; that save as aforesaid he had not in any manner violated any law of the said Church, and that there- fore, the judgment and sentence were illegal and void according to the laws of the realm. To this the defendant has rejoined that the actionable wrongs and injuries referred to, in respect of which the plaintiff impleaded the ecclesiastics, were the alleged speaking and publishing of the plaintiff of certain alleged slanderous words by the said ecclesiastics, alleged to have been spoken and published of the plaintiff in his character of parish priest of the parish of Callaii ; and the defendant insists that such impleading by the plaintiff of the said ecclesiastics was contrary to and in violation by the plaintiff of the laws, ordinances, and discipline of the said Church. To this the plaintiff has demurred, assigning for cause, that the rejoinder does not contain any matter of rejoinder good in substance, for that the alleged laws of the Roman Catholic Church, in the rejoinders mentioned, in so far as they are alleged to have been violated by the plaintiff, were and are illegal and void. Beginning, then, with the demurrer to the rejoinder, and assuming for the present that the Cardinal had jurisdiction by virtue of the papal ordinance to inquire into the conduct 78 Court of Queen's Bench (Ireland). The of the plaintiff, and to pronounce a sentence of suspension or deprivation, the first question to be considered is Whether the sentence so pronounced was a lawful sentence? The plaintiff, by his replication, insists that it was not lawful to suspend him until he (the Rev. Mr. O'Keeffe) had committed some offence against the laws of the Church, and that the only offence which he did commit was that of impleading an ecclesiastic in her Majesty's courts of law for an actionable wrong. The defendant, by his rejoinder, has narrowed this averment by stating that the alleged actionable wrong, in respect of which the plaintiff had impleaded an ecclesiastic, was in respect of words stated to have been spoken and published of the plaintiff in his character of parish priest of the parish of Callan, and that such impleading by the plaintiff of the ecclesiastic who spoke and published the defamatory words was a violation by the plaintiff of the laws Is the and discipline of the Church. This raises the question rule which whether such a rule of the Church, or such a term of the impiead- contract alleged between the members of it, was one by ing legal ? w ] 1 { c ] 1 ne plaintiff can be bound. The plaintiff insists that the rule is a rule against the liberty and dominion of the law (as expressed by Baron Martin in Elliott v. Royal Exchange Assurance Company), 1 and contrary to public policy, and therefore, that it cannot be recognised by a court of law as giving validity and sanction to a sentence of suspension founded upon it. The defendant, on the other hand, has contended that there is neither authority nor any principle which prevents a voluntary religious association from making a rule to prohibit its members from going to law with one another, and that such a rule, so far from being contrary to public policy, is in furtherance of it by its tendency to pre- vent public scandal. Before we can duly estimate the arguments on either side we must examine critically the particular rule which is relied on here. Several instances have been referred to, in which it would appear that par- ticular Churches, such as the Free Church of Scotland, and certain religious societies, such as the Wesleyan Methodists, and the Quakers, and even secular and social bodies, such as clubs, have adopted and acted on some rule of this nature. Now, in the first place, the rule set forth in this rejoinder 1 L. R. 2 Ex. 244. Rev. Robert O'Keeffe v. Cardinal Cullen. 79 (carefully considered and carefully framed, as no doubt it is) The is not a rule that all matters relating to disputes between members or office-bearers of this particular religious com- munity shall be referred to and be adjudicated upon by a tribunal constituted for that purpose within the body itself, so that the original wrong may be certainly redressed. On the contrary, the rule as set forth is nakedly this : that no Nature ecclesiastic shall, under any circumstances whatever, implead of th . e another ecclesiastic in respect of defamatory words spoken of question. him in his character of parish priest. It is not alleged or pretended that the plaintiff had any remedy open to him other than impleading, or that any other means of redress had been provided for him. The rules referred to as pro- p ec u- hibiting Quakers and Wesleyans from going to law with each h an ty of other, when examined, will be found to be based on a refer- ence to a domestic tribunal specially provided for the purpose, and open to the aggrieved members for the adjustment of their complaints inter se ; and the rules of the Society of Friends, as stated in the argument, provide for a reference to the tribunals of law and equity in some cases deemed to be incapable of solution before the domestic tribunal ; but jj in the case before the Court, so far as it appears, either there domestic was no such domestic tribunal open to the plaintiff, or its provided doors have, with determined purpose, been closed against him. Let us suppose it had been stated in the rejoinder as the rule of the Church, that no ecclesiastic should implead another ecclesiastic until he had first, according to an alleged contract, brought his complaint before a tribunal constituted for the purpose and open to the plaintiff and that the plaintiff had by way of surrejoinder set forth ' True ; there is such a rule, and I acted in obedience to it ; I pre- ferred my complaint to that tribunal (say the bishop), and he refused to entertain it, or to do justice in the premises ; I appealed to the archbishop, and he refused to hear it ; and finally, I preferred my complaint to the head of the Church, and there also it was declined : I had suffered a grievous wrong, and my subsequent impleading in the ordinary tribunals of my country was of necessity, and neither in violation of the laws of the Church nor of natural justice : I had no alternative open to me by which I could clear my 80 Court of Queen's Bench (Ireland). The Lord Chief Justice. A rule of despotism contrary to policy of law. Contracts not to sue are legal where property only is concerned, character from the foul slanders poured upon it, but to resort to this tribunal : I could procure no mandamus to compel my bishop to hear me : I was denied even a hearing of my case against the man who deeply injured me ' would not this have been a complete answer to the rejoinder ? But the rule as alleged is significantly silent respecting the existence of any such domestic forum accessible to the plaintiff, and in which full and impartial justice might have been ad- ministered. As stated, it is a rule of despotism, inconsistent alike with the liberty of the law and with reason. It is that in no possible case shall an ecclesiastic appeal to the law against another ecclesiastic for slander uttered by him. in his sacred character of priest ; and we are compelled to take it that he is required to seek no redress, no remedy, but to submit to the defamation of his character, whether it be for truthfulness, honesty, sobriety, continence to have his good name and fame brought into public odium, infamy, and dis- grace, while his grievance is to be hushed up and his mouth to be closed for ever. It scarcely requires authority to prove that such a rule is contrary to the liberty and policy of the law. Has the State no interest in the unsullied character of its members ? Has it no interest that a regularly ordained and inducted parish priest, to whom is committed the religious instruction of a large district, shall be reputed to be a man of character, of good conduct, of honesty, of piety, well esteemed amongst his people, and worthy of their respect ? What resemblance has such a rule to the condition imposed by a testator on the object of his bounty, that he shall not dispute his sanity after he is dead, on pain of forfeiture of his legacy ? The State is interested as Baron Eolfe put it 1 that its subjects shall marry, that they shall embark in trade and the like ; that they shall not violate the laws ; but it has no particular in- terest whether a certain legacy shall fall to A B or fall into the residue. It is true the law leaves parties free to make what contract they may think expedient as to raising or not raising questions of law or of fact among themselves, the result of which may be to give the enjoyment of property to one claimant rather than to another ; but can such con- 1 Cooke T. Turner, 15 M. & TV. 756. Rev. Robert O'Keefte v. Cardinal Cullen. 81 tracts be entered into as will bind a man to suffer the loss of The his life or his limb, or of his liberty, or what is dearer than liberty his character, without redress ? ' Suppose/ as Baron Martin put it in Scott v. Avery, 1 ( a man to contract to com- mit a crime or to become the slave of another for life, all a contract would agree that such contracts were not binding, and could vo1 ' not be enforced in any court. There therefore must be some limit.' Now. amongst conditions set forth as void are such as these ; conditions which enable masters to place hardship on their apprentices or servants conditions which tend to oppression, such as that a man shall bind himself not to go to church, or a condition to forbid a man doing his duty. A condition that a man shall not hurt or molest the obligee in his lands or goods is a good condition, for it shall be intended that he shall not hurt tortiously, but not to restrain him from, pursuing the obligee for felony or other just cause. Courts of justice have been established for the redress of wrongs, and to discourage men from taking the law into their own hands. Every citizen of a civilized State surrenders some portion of his natural liberty, and in return is guaranteed by the State full protection for his life, liberty, property, and reputation. Every contract or condition which affects to close the doors of the temple of justice against the complaint of an injured man is regarded with jealousy. Baron Martin says, ' No case says that the parties may contract that a matter shall never be heard in court, and my impression is, that it would be against the liberty and dominion of the law.' 2 In the times of Lord Macclesfield, and perhaps of Lord Eldon, it was con- sidered, as stated by Lord Cranworth, 3 to be against the policy of the law, to give effect to an agreement that questions arising in dispute between parties in regard to their contracts should not be enforced through the medium of the ordinary tribunals. Lord Eldon seemed to doubt whether such a contract was not altogether nugatory. It is true, the private spirit of modern times has been more favourable in reference tr ^ unals to private tribunals. They have not merely been recognized, permitted. but have been clothed with certain judicial powers, as to the summoning of witnesses &c:, and their decisions, although ' 5 H. L. C. 830. 2 Elliot v. Royal Exchange Assurance Co., L. R. 2 Ex, 244. 3 Scott v. Avery, 5 H. L. C. 848. O 82 Court of Queen's Bench (Ireland). The Lord Chief Justice. Rights created by contract may be referred to them, but not rights existing indepen- dently of contract. unfortunately not in the result always satisfactory, have been sanctioned with a certain degree of authority. It should be observed that all these cases in which there has been a reference of future disputes have been conversant with special contracts and with rights which flow from the mutual stipulations of the parties. But there has been no case or dictum cited from the books in which it has been held or stated that rights which every man possesses indefeasibly and independently of contract, rights acquired from God and nature, life, liberty, property, reputation can be con- tracted away, so as to render it impossible for the sufferer to assert and vindicate such rights in a court of justice. I regard this as a novel and perilous application of a principle admitted with reluctance and hesitation to an entirely new field of judicial decision . Agreements to refer differences arising on contracts have been supported and enforced (as in Livingston v. Ralli), 1 on the ground that they only suspend the right of action till after the decision of the arbitrator, and that they do not finally and conclusively prohibit the resort to the ordinary tribunals, as the rule pleaded here affects to do. Lord Campbell, in that case, says, ' Can it be said that such an agreement is void as being immoral, or as contrary to public policy ? . . . . There seems at one time to have prevailed in our courts a, horror of a domestic forum which I can neither sympathize with nor account for.' Such a case has no application here. But if the question put by Lord Campbell were applied to a rule which purported to prevent an ecclesiastic who had been slandered by being charged with gross theft or immoralitj^ or with having sacrilegiously purloined the oblations and offerings for the poor, and which forbad him seeking to clear his character in the face of his parishioners, would such a rule not be pro- perly described as immoral and contrary to public policy ? It would, at all events, have not the slightest resemblance to the contract enforced in Livingston v. Ralli, in which it was agreed to refer matters in difference regarding an existing special mercantile contract to a domestic tribunal. I need not now consider how far the decision in Livingston v. Ralli itself can be reconciled with the doctrines laid down by Lord Cranworth in Scott v. Averyf a later case, decided in the 1 5 E. & B. 132. 5 H. L. C. 847. Rev. Robert O'Keeffe v. Cardinal Cullen. 83 House of Lords, where he says, that if the right of action The had accrued, it would be against the policy of law that such j ust i c e. a right should not be enforced through the medium of the ordinary tribunals. I do not enter into this consideration now. It is not material to the present inquiry it is enough to say that such cases have no bearing on the principal case, and that I doubt how far the actual decision in Scott v. Avery - - viz., that by contract a man may so qualify his right of D ou btful action as to render its accruer dependent on some precedent whether a material inquiry can have application to future actions of ^ntract tort, and whether there can be any such antecedent quali- qualify his fication attached to a man's right to redress for an injury action for done to his character, or liberty, or person. The right to tort - redress in such cases does not flow from any contract between the parties to that particular action ; it rather flows from a contract with society at large ; and can any stipulation make it an incident to the office of a parish priest that he shall renounce his natural liberty and submit to slander which he knows to be false, and to a denial of justice ? But then it is said that the rule does not oust the jurisdiction of the Courts, because it may be disregarded, and an action brought in defiance of it and full redress had that the Church only deals with the status of the priest which the Church itself conferred upon him, and that it is to the contract by which the Rev. Mr. O'KeefFe acquired his status that the condition is attached. But I do not see how this can remove from the rule under consideration, as one of the terms of a contract, its inherent infirmity and illegality as being contrary to public policy ; for, says Baron Martin, 1 ' The manifest object of the parties was to keep away from the jurisdiction of the ordinary courts of law and equity any question of difference which might arise upon the contracts, and merely to make use of the courts to enforce the award of the arbitrators. This, in m J judgment, the law will not permit ; and whether it be attempted to be done directly or indirectly, I think the attempt is equally unavailing.' It is true that the rule against iin pleading does not and A man cannot hinder impleading directly. Why? because it is mus , t VT T~ -it J.1 n0tLe contrary to public policy ; but neither is there any case 111 punished which such a contract has been recognized or enforced ; and for resorting 1 Scott v. Avery, 5 H. L. C. 827, a 2 Court of Queen's Bench (Ireland). The Lord Chief Justice. to civil courts. Court will not sanction a rule by which a man is thus punished. Pleas of justifica- tion.' if its consequences are to make a violation of this rule penal, involving forfeiture of rank, status, and emoluments, as said by Mr. J. Coleridge, 1 f the courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction which has been considered a right inalien- able even by the concurrent will of the parties.' In Fitzherbert's Natura Breviumf it is said, 'Where a man sueth in the spiritual court for spiritual causes, and the de- fendant purchaseth a prohibition directed unto the judges there, and delivers the same, and for so doing the judges do excommunicate him for the offence he did to the Church in bringing a prohibition to them upon a spiritual cause ; the party excommunicate shall have a new prohibition upon that matter, commanding them to revoke the same. For a man shall not be punished for suing forth writs in the King's courts whether he have right or wrong;' a rule of many centuries. If the judge of an Ecclesiastical court might have been sued for indirectly punishing a man for becoming a suitor in the Queen's courts, can this court give its sanction to a rule or contract, assuming it to exist, of two parties so contrary to its policy ? The rule, as stated, is a direct punishment for entering the Queen's courts is not this an obstruction and hindrance to the administration of justice ? Is it not almost, if not altogether, constructively a contempt of court ? The court here may not have power to compel the defendant to revoke his sentence founded on the non-observance of this rule which the law condemns ; but will it on the other hand sanction and adopt, as a lawful term of a contract, that by virtue of which the status of a priest is to be affected, and his right to vindicate his character abrogated? If the court should be against the plaintiff on this demurrer to the rejoinder, the plaintiff, as is his right, falls back upon the special defences, and contends that they are not sustainable in law. There are, as I have said, three pleas of justification (llth, 12th, and 13th defences) addressed respectively to the 2nd, 3rd, and 4th counts. The 1st and 3rd are substantially to this effect : ' The libel is time, because you were legally suspended and deprived, inas- much as the sentence was pronounced by the authority of 1 Scott v. Awry, 5 H. L. C. 841. Title Prohibition, p. 42. Rev. Robert 0*Keeffc v. Cardinal Cullen. 85 the Pope, and was conformable to the laws of the Church.' The And the other the 12th defence, by way of justification is ^S.^ to this effect : ' The libel is true, because I did suspend you and did deprive you, and the sentence was conformable to the laws of the Church.' Now, as regards the two former defences, which justify Meaning the libel by saying ( you were legally suspended.' What is f the meaning of ' legally suspended ' ? We must ascertain suspended. that, and the pleader who has framed the defence must justify the averment in the same sense in which it is em- ployed by the pleader who framed the plaint. Does it mean merely suspended according to the laws of the Roman Catholic Church, or according to the laws of the land? I apprehend that nothing can be recognised as law in this Court can Court but the law of the land. The rules and regulations of recognise a voluntary Church may be called 'laws,' by way of law of the courtesy or convenience, but they can have no force or land - acceptance here but as the terms of a contract ; and the Court could take no notice of them even as such, unless to enforce some civil right or redress some civil wrong, and can regard them as binding so far only as they are consistent with the laws of the land. But then it is said suspension is an ecclesiastical sentence, and a libel stating ' I have sus- pended you,' or 'I have legally suspended you,' must mean I have suspended you according to the laws of the Church, and it is a thing not to be decided according to the laws of the land, but by the laws of the Church. This might be a sufficient answer if the act or sentence of sus- pension involved merely spiritual or ecclesiastical rights. This Court has no concern with the private affairs of eccle- siastical bodies not established by law. They may make their own rules of discipline and order, and enforce them in such a manner as they please, and this Court will not inter- fere ; but the moment the temporal and civil rights of a citizen are trenched upon, the Court is bound to inquire into the terms of the alleged contract, how far they -are binding and legal, and how far they have been violated. Lord Colonsay, in the Cardross Case, says : ' That body (i.e. the Church) has a constitution and rules by which the society ds governed, and to which its members have voluntarily subjected themselves; and in so far as they have subjected themselves 86 Court of Queen's Bench (Ireland}. Facts to justify publica- tion must be shown. The to these rules and to that constitution, the civil courts will not hold Lord Chief that they are entitled to complain when these rules are observed, unless ' there is something in them contrary to the public law of the land.' l Here a sentence, primd facie defamatory of the plaintiff, lias been formally pronounced and proclaimed by the defen- dant, and he must give some good reason to warrant his defamatory publication. No private individual in this king- dom, however exalted, has a right to pronounce a sentence affecting the temporal rights of any subject, and justify it by saying ' true, I did it.' What he is called on to show is not merely that it is true in point of fact that he did suspend or pass sentence, but that he passed a lawful and a rightful sentence, valid according to the terms of the contract or the rules of the Church ; above all, consistent with the laws of the realm. No man's ipse dixit will justify his having pronounced and repeated a libellous sentence ; something more is involved than the factum of the sentence. The elements of authority and of jurisdiction, lawfully and bond fide exercised, are essential parts of the defence, inas- much as it is these which give the libel its whole sting and force, so that I apprehend the matter of jurisdiction lawfully derived and exercised is involved in the pleas of justification, as I will show they are also in the pleas of privilege. If an alleged defamatory sentence were pronounced, or if com- ments were made by a judge of the superior courts or by a county court judge while sitting in court and trying a cause in whieh the plaintiff was a party, and if an action of libel or slander were brought, it would be a sufficient defence to say, 'I was a judge duly appointed to administer the law; I had full jurisdiction to try the cause ; I am protected in all I uttered for the benefit of the public and for the sake of the jurisdiction entrusted to me, and I am responsible only to public opinion and Parliament.' If a private individual constitutes himself a judge of the conduct of his fellow- subject and pronounces a sentence which is primd facie slanderous, he must justify his conduct by something more than by saying * true, I did it.' Suspension of a parish priest from office and deprivation of his means of existence are something more than matters of dogma or opinion ; they are acts of high jurisdiction exercised by one man over his 1 The Law of Creeds in Scotland, by A. T. Innes, p. 289. Lawful jurisdic- tion is necessary. A duly appointed judge is protected. Private individual assuming to act as judge is not protected by law. Rev. Robert O'Keefe v. Cardinal Cullen. 87 fellow, involving serious consequences loss of status, rank, The office, and emoluments ; and a libel saying ' I have sus- j ust j ce | e peiided and deprived you,' would not be justified as being true, unless the defendant had pronounced a lawful and effectual sentence, warranting and drawing after it the in- fliction of those serious consequences, and unless the libel was conversant with such a sentence and gave a correct narrative of it. It must state, not that the defendant Sentence had said the plaintiff was suspended, but that he said he "^jst be was lawfully and effectually suspended ; so that the pleas of justification rest on the validity of the sentence. And if the statute of Elizabeth be in force, and applies to an exercise but as of jurisdiction such as this, it is fatal to the defence of justi- Elizabeth fication ; and any individual who pronounces, or narrates makes that he has pronounced, such a sentence affecting the t ion temporal rights of any subject of the realm must be prepared illegal, to prove not merely that he passed such a sentence, but to cannot be establish its validity as resulting from the terms of the yalid - contract, and as being consistent with the laws of the king- dom. Even a Judge of a Court of Eecord, whose acts and language are challenged, is bound to show that what he did or said was in the exercise of jurisdiction lawfully committed to him. If he transgresses the bounds of that jurisdiction A judge he is responsible for his acts. In Houlden v. Smith } the exceeding Court held that ' the defendant had not only no jurisdic- diction is tion to commit the plaintiff to gaol, but he had no jurisdic- tion to summon him to show cause why he had not paid the debt. . . . His mistaking the law cannot give him even a primd facie jurisdiction or semblance of any.' So also a celebrated judge of the Ecclesiastical Court was held responsible in damages for unlawfully excommunicating a plaintiff because he (the plaintiff) refused to obey an order which the Court had no power to make. This was the cause of Beaurain v. Scott. 2 The defendant there was that in- comparable scholar, Lord Stowell, whose judgments are master-pieces of learning and ability. Even he was held liable in an action on the case, because he had made and enforced an order which he had no authority to make, and because the party, although he had received notice to appear before him, had not received a regular citation or summons, 1 H Q. B. 852. 2 3 Camp. 388, Court of Queen'' s Bench (Ireland). The Lord Chief Justice. Authori- ties showing jurisdic- tion of Spiritual Courts to be limited l>y law. The principle of this case, although in a different form of action, applies strongly to the present. The reporter of this case afterwards Lord Campbell appends a note to this effect ' That where the Spiritual Court has excommunicated a person for a cause for which they have not by the law of the land authority to do so, he has a right to some such writ.' When we refer to Blackstone, cited in the note to Campbell's report, we find this passage : t But if the judge of any Spiritual Court excommunicates a man for a cause of which he hath not the legal cognizance, he is also, (i.e. in addition to the civil action,) liable to be indicted at the suit of the King.' * In the 2nd Institute (chapter Articuli Cleri, 9 Ed. 2, p. 598), Lord Coke states that one of the demands of the clergy was, that ' none of the possessions or liberties which any of the clergy had in the right of their church should be tried before any secular judge, so as they would not have cognizance of things spiritual, but of tem- poral also.' They complained against the perverse interpre- tation by the judges of the realm of charters granted to them and in substance against the ancient and just writs of prohibition in cases where, by the laws of the realm, they were maintainable ; so ancient do we find the claim of the Church to govern and to overrule the common law to have been. In his 2nd Institute 2 Coke treats of the remedy which the subject had against an unjust excommunication, i.e., an excommunication for a matter which belonged not to ecclesiastical cognizance. Here he writes of the writ out of Chancery to the sheriff to deliver the excommunicated, if taken under process ; and at the latter part of the note AVC read ' And also the party grieved may have his action upon his case against the bishop in like manner as he may when the bishop doth excommunicate him for a matter which be- longeth not to ecclesiastical cognizance. And also the bishop in those cases may be indicted at the suit of the King, as by many notable records may appear.' Thus we see how old is the practice of clerical encroach- ment ; we perceive the mischief arising therefrom, and the remedies prescribed by the ancient law of the Catholics for the correction of such mischief, within the principle of which remedies the present action falls. Indeed, the pleader who 1 Bl. Com. vol. iiLp. 107. * Chap. vii. p. 623. Rev. Robert CfKeeffe v. Cardinal Cullen. 89 framed the defences of justification has carefully prefaced The them by a narrative of facts setting forth the position of the plaintiff as a priest, the rescript of the Pope, the notice (not - summons) to the plaintiff, his appearance, the trial, the sentence, and then he proceeds to aver its validity by alleging it was conformable to the laws of the Church of Eome. Mr. Carton admitted that he was obliged by his pleas of justifica- tion, especially those applicable to the 2nd and 4th counts, to show a suspension such as would be recognised by a court of law ; in other words, he must show that the defendant had a lawful authority to pass the sentence, and that he exercised it in a lawful manner. I think this concession was inevit- Private able, and that voluntary and self-constituted tribunals have *"^" t als no exemption from the obligation to state and prove the legal exceed basis of their jurisdiction more than have the regular ecclesias- j^" tical courts of the realm. When they transgress the bounds diction ; of their jurisdiction, they cannot shelter themselves from the inquiry into the validity of their sentences by saying it was an ecclesiastical matter that a sentence has been pronounced cannot which is conformable to the rules of the Church, that there *?*** can be nothing to be redressed in respect of it, that there can astical be no inquiry instituted into its validity, except by these laws character - of the Church, and that it is privileged from being tested by the laws of the land. All this was strongly expressed by Lord Campbell in the House of Lords, in the celebrated Auchterarder Case : l ' From the time of St. Thomas a Becket till now there has been no such pretension in any part of this island as that ecclesiastics, in the exercise of n Itbenan arbitrium inherent in them, are of their own authority con- clusively to define and declare their own power and jurisdiction, and . that no civil tribunal can call in question the validity of the acts or proceedings of any ecclesiastical court. In the most palmy days of Popery in England, if " the Courts Christian " exceeded their jurisdic- tion, as if they were seeking to enforce an unlawful canon, instead of appealing to the archbishop or to the Vatican at Eome, an application was made to the Courts of Westminster Hall for a prohibition ; the prohibition was granted, and the law would easily have vindicated its dignity if the bishop had insisted on proceeding in the face of the prohibition.' In this way the sentence of suspension and deprivation by a bishop of the Church of England in the colony of Cape- 1 Ferguson v. Earl of Kinnoul, 9 Cl. & F. 323. 90 Court of Queen's Bench (Ireland). The town 1 was held to be open to challenge in the temporal courts. Justice 6 ^ was insisted that the sentences were judgments ecclesias- tical and spiritual, issued under the powers conferred by her Majesty's Letters Patent ; that the plaintiff was removed for Cases in lawful cause ; and that the Court was not entitled to examine the sentence or disturb it. But this contention failed. The tical whole j udgment of that eminent jurist, Lord Kingsdown, is fitters applicable to the present case, and highly suggestive of prin- in courts ciples not to be denied. So again in the Cardross Case* where a minister of the Free Church of Scotland appealed to the civil courts against a sentence of suspension and deprivation, and it was pleaded in bar that the sentence complained of was a spiritual act done in the ordinary course of discipline by a Christian Church tolerated and protected by law, the plea was rejected. So again in the case of a member of the Episcopal Church of Scotland. 3 And the same law was applicable even to the Queen's ecclesiastical courts. The case of Free v. Burgoyne* shows that a prohibition will be granted if the ecclesiastical courts proceed to deprive for that which is not just cause of deprivation, and a sentence of de- privation, showing ex facie that it was founded on that which would not be just cause of deprivation, would be nullity. As said by Lord Campbell in the Auchterarder Casef 'All proper respect is to be shown to ecclesiastical authority, but authority must be denned, or despotism would be established.' Assuming, then, that the validity of this sentence is a matter open to discussion 011 the demurrer to these defences, and that so far as the facts stated on the face of these pleadings may enable the Court to form an opinion on the subject the Court is bound to weigh those statements in the golden scales of the law of England, and not by an ecclesias- tical or spiritual standard, let us see on what the defendant has rested the jurisdiction which he has professed to exercise, and from what source he has derived it. As stated by Lord Deas in the Cardross Case : 6 e No man in this country has any 1 Long v. Bishop of Capetown, 1 Moore, P. C. C. (N. S.) 411. 2 The Law of Creeds in Scotland (A. T. Innes), p. 257. 8 Dunbar v. Bishop SJcinncr, The Law of Creeds in Scotland (A. T. Innes), p. 252. * 5 B. & C. 400. 5 Ferguson v. Earl of Kinnoul, 9 CJ. & F. 318. The Law of Creeds in Scotland (A. T. Innes), p. 297. Rev. Robert O'Keeffe v. Cardinal Cullen. 91 power over another, in matters either religious or civil, beyond The what the civil law itself confers, except by that other's own consent.' The defendant here has placed upon a slight basis of contract a very lofty and weighty superstructure, consist- ing of the papal rescript or ordinance, the trial, the sentence, and the publication of that sentence pronounced on the plain- tiff. He has cited cases which establish that members of a Church may create an ecclesiastical tribunal and try eccle- siastical cases between themselves. 1 They may establish a domestic tribunal, such as the Wesleyans did in Dr. Warren's Case, with ample powers ; they may vest jurisdiction in a majority of a congregation to dismiss the minister without cause, as in Cooper v. Gordon, 2 just as a private social club may entrust authority to a committee, and if that authority be exercised bond fide, without legal fraud, and in accordance with the constitution of the society or club, this Court can- not and will not interfere with its decision. But, although Church the discipline of any Church not established, is thus far ^^e 6 matter of voluntary arrangement, which may be regulated by consistent the will of the members, yet it is presumed to be consistent T with law, and it cannot be permitted to rise above the level of the law. It must first be established as a fact ; it must rest on consent, and conform to general law and public policy, and to this extent, and no further, will it be sanctioned and sustained. So, in this case, the discipline of the Church of Home must be proved as a matter of fact. Its validity must be tested by the law of the land, including public policy, and. by no other standard. On what, then putting aside for the present the real or colourable foundation of contract is the jurisdiction rested? It is not rested on the episcopal character or authority of the defendant as a bishop, or as a Cardinal of the Church, or as metropolitan of the province ; and having regard to che title, character, and functions of such prelates or personages, it would be impossible so to do. Mr. Carton admitted that the statements of these official titles were introduced merely to show the privilege arising out of the duty and interest of the Cardinal in promulgating his sentence. The plaintiff insists that qua bishop the defendant had no more episcopal authority 1 Bishop of Natal v. Gladstone, L. K. 3 Eq. 1. 2 L. E. 8 Eq. 249. Court of Queen' 's Bench (Ireland). The Lord Chief Justice. Cardinal's juris- diction based on papal rescript alone. Can papal jurisdic- tion be given by private contract ? Irish law same as English. to interfere in this matter than if he (the plaintiff) had sued another ecclesiastic for the price of a horse sold to him or upon a money bond for a just debt. Mr. Carton admitted that the defendant's jurisdiction to do the act complained of rested on the papal rescript alone, by virtue of which any other official selected would have had equal jurisdiction if it had been addressed to him. And now we have raised before us a serious question of constitutional law, viz., whether and how far the jurisdiction assumed by the Pope, in pursuance of an alleged contract of the plaintiff, or by virtue of the general discipline of the Church, has arisen above the level of the law, and has infringed on that long and ancient series of statutes which assert the principles of the common law and the supremacy of the Crown. This all-important question must be answered by a close examination of the common law and statute law which we are bound to administer. Every student of history is acquainted with the great quarrel that broke out between the Court of Some and England in the reign of Henry VIII., and which was continued in the reign of Elizabeth, on the question of supremacy, which included the question of the undivided jurisdiction of the Crown, i.e., the authority of the law and the independence of the State. But it is with Ireland and with positive existing law I am concerned. The impetuous Sovereign Henry VIII. declared that he would be Lord of Ireland no longer ; accordingly, a statute made him King. Then he said he would not be half a King, but a whole one; and, accordingly, the principles of the old common law and the doctrine of the undivided jurisdiction of the Crown were embodied in the legislation of the Parliament of Ireland. Lord Bacon has written a history of Henry VII., and describes him as one of the best of law-givers the poor man's King, * a title,' writes Barrington, 1 ' which deserves to last to remotest ages, when his elegant and expensive monument in Westminster Abbey is not to be found in its place.' In the reign of this King was passed, at a Parlia- ment held in Ireland, what Lord Coke terms ' a right profit- able Act,' called < Poyning's Law.' 2 By this Act all the statutes made within the realm of England belonging to the 1 ' On the Ancient Statutes,' p. 349. 2 4 Inst, 351, 352. Rev. Robert 0*Keeffe v. Cardinal Cull&n. 93 common weal were thenceforth, to be deemed good in Ireland. This included, Lord Coke writes, Magna Charta and all beneficial public statutes made in England before the 10 Henry VII. We got the statute la,w and the common law to pa p ^ ds in their entirety and fulness. I take Caudrey's Case for a authority legal history of the common law on this head of it, which England. affects our subject. With respect to the authorities referred to in that case on the 1st Elizabeth, it was resolved ' That the said Act of the first year of the late Queen concerning Ecclesi- ecclesiastical jurisdiction was not a statute introductory of a new law, ast ical but declaratory of the old, which appeareth as well by the title of the O f Crown said Act, viz. "An Act restoring to the Crown the ancient jurisdic- in time of tion over the State, ecclesiastical and spiritual " &c., as also by the 1Ea e 1- body of the Act, in divers parts thereof. For that Act doth not annex any jurisdiction to the Crown but that which in truth was, or of right ought to be, By the ancient laws of the realm, parcel of the King's jurisdiction, and united to his imperial Crown, and which lawfully had been or might be exercised within the realm.' l In the reign of Henry III. it was held that ' By the ancient canons and decrees of the Church of Rome, the issue p p e ( s born before solemnization of marriage is as lawful inheritable (marriage bull following) as the issue born after marriage, but this was never allowed ^. OK J1 l or appointed in England, and therefore was never of any force here ; Henry III. and this appeareth by the Statute of Merton, made in the 20th year of and E.. What, then, was there in the position of the defendant, as rector of the parish, which entitled him to circulate a defamatory letter, not only in his own but in the adjoining parish, and so endeavour to prevent persons from subscribing or sending their children to the plaintiff's school? It is difficult to understand how the slightest right to do so can be suggested. As rector he might, no doubt, visit and remonstrate with any of his flock; but when a meritorious individual is about to set up a school of which he disapproves, because he thinks it may rival the school in which he takes an interest, that he should on that account cast serious imputations on that individual, and still be considered as having published a privileged communication, certainly seems a strange and inconvenient doctrine.' He lastly ob- serves in an admirable spirit on the endeavour by the defend- ant to make the plaintiff's conduct a matter of spiritual delin- quency. We have in this well-reasoned judgment a clear exposition of the principles by which, having regard to the facts and circumstances, the occasion of the publication and the duty of the publisher of the scandal are to be ascer- tained. Belief merely in the assertions contained in the defamatory publication will not screen the writer from the legal consequences of his act. If a writer were to publish that the plaintiff was a degraded priest, and then, being sued upon his libel, were to plead that he wrote and pub- lished the charge because he believed it to be true, and insisted that it was therefore a privileged communication, the plea would be futile. The grounds for a reasonable belief must be shown by the facts and circumstances, and in obedience to our Procedure Act must be set out in the plea. The result of the authorities, in addition to what I have already said, I take to be that, in order that matters other- wise libellous shall be entitled to the protection afforded to Rev. Robert 0*Keeffe v. Cardinal Cullen. 115 what are called privileged communications, two elements The must concur first, that the communication shall be made in Lord 9 hief fulfilment of a duty whether legal, moral, or social to in- ' quire and report upon the matters under the party's own Condltlolls f, ~ e J necessary cognizance, or to report matters coming to his knowledge to create a from external sources ; second, that the party publishing P rivile g e - must honestly believe the information which he communi- cates to be true. As regards the first element, it must not be a voluntary, officious, wanton interference, or an assump- tion of a right to supervise or criticise the conduct or character of others, much less the usurpation of an authority to judge which the law does not recognise or permit. In stances are to be found in the books such as these : A superior military officer forwarding to head quarters, in the course of his duty, a report affecting the military status of an inferior officer, will be protected, because it was his duty to inquire, consider, and report upon the matter. 1 Again, the paid officer of a Poor Law Union, whose duty it was to see that the wine forwarded for the use of the hospitals was good and proper wine, and who was bound to report to the guardians upon the matter, was protected when he in- formed them, tenders being before them, that no good wine was to be had in the quarters whence the tenders came. 2 So it was the duty of the directors of a company first to in- quire into and then to consider and communicate to their shareholders the report of the auditor, as to the manager's supposed defalcation in his accounts, and such report was primd facie privileged. 3 Wallace v. Carroll* was a similar case ; there the secretary of a charitable institution charged the matron with abstracting the property of the ladies who sent their laundry work to be done in the establishment. The principle of this class of decisions is clear. But, on the other hand, as shown in the case of Bell v. Parke, 5 an officious voluntary inquiry into the conduct of another person, and a promulgating of the results of that inquiry, will have no protection. In that case the duty was not 1 Dawkim v. Paulet, L. K. 5 Q. B. 94. * Murphy v. Kellett, 13 Ir. C. L. E. 488. s Lawless v. Anglo-Egyptian Cotton and Oil Colliery Company, L. E. 4 Q. B. 262. * 11 Ir. C. L. E. 485. 5 10 Ir. C. L, E. 279. i 2 116 Court of Queen's Bench (Ireland) , The Lord Chief Justice. Definition of privileged occasion. If sentence contrary to law, its publica- tion must be illegal. Basis of plea of privilege 13 the i llegal rescript. shown, nor was the occasion connected with any duty. Neither will the repetition of rumours injurious to another be protected, unless it can be shown that the propagator spoke the words on a justifiable occasion. In the case to which I refer, 1 the proper definition of what is a justifiable occasion is given by the learned Judge Blackburne, who pronounced the judgment, not in his own language, but in what he dis- tinguishes as c the accurate language ' of Mr. Justice Little- dale, in M'Pherson v. Daniels. 2 To justify words defamatory of another, they must be, he says, ' spoken on an occasion or under circumstances which the law, on grounds of public policy, allows, as in the course of a parliamentary or judicial proceeding, or in giving the character of a servant.' Ex- amined by this test, the Court must ask itself, did the law, on grounds of public policy, permit or sanction the defendant, under the circumstances set forth in the defences, to enter into the inquiry and pronounce the injurious sentence con- cerning the conduct of the plaintiff set forth here ? And if that question must be answered in the negative if there was no warrant or justification for that inquiry or sentence, if they were in direct violation of the common and statute law of the kingdom, how can it be held that the law which prohibits and condemns the sentence can deem it calculated to promote public policy to have such sentence promulgated and advertised over the country ? As regards duty, the de- fendant can have no duty at least none which the court can recognise to announce to the world his unjustified and illegal condemnation of the conduct of his fellow-subject. The parishioners of Callan can have no possible correspond- ing interest in being informed of this abortive and unjustifi- able attempt to degrade and deprive the parish priest, in whom they may confide and whom they may respect ; and so on the grounds alleged of public policy, duty, and interest, the claim of privilege to utter the defamatory matter con- tained in the pleadings must, in my opinion, be disallowed. Reverting to the special defences of privilege, let me ask, on what do they rest ? Unquestionably upon the rescript of the Pope. The references to the defendant's episcopal or archiepiscopal position do not even pretend to point at any authority to publish what is impugned. If any episcopal or 1 Watkin \. Hall, L. E. 3 Q. B. 396. 2 10 B. & C 272. Rev. Robert O'Keeffe v. Cardinal Cullen. 117 archiepiscopal authority did exist to warrant the defendant The in doing what he did, why apply to Eome for this special and extraordinary authority to sit in judgment on the plaintiff's proceedings in having asserted his right in a temporal matter in a court of law ? The structure of this defence of privilege proves that the pleader had nothing upon which to construct it but the papal rescript. Save the cursory allusion to con- tract in the preface, from the first to the last, the rescript of the Pope is the great fact relied on. In what position does the defendant now stand in regard to this defence ? Why, upon the pleas of justification, this same rescript has been condemned as illegal and void, forbidden by the prin- ciples of the common law; expressly prohibited by the statute. Well, the same rescript being the foundation of the defence of privilege, its publication must receive the like condemnation. It is as void in one defence as in the other. , , Ihe plea It never had any foundation in law. It is a breach of the therefore law to assume the jurisdiction which the defendant assumed badt thereunder, and it is equally a violation of law to publish, under colour or pretext of lawful judgment, the sentence branding the plaintiff as a priest unfit for his sacred office. Nor can I agree in what has been stated as to the mode of p r ; nc i p i eg procedure adopted by the defendant. I fail to discern in the of justice mode of procedure in this case that the principles of natural Jwd in justice have been pursued. I observe that the cautious pleader procedure, does not even say that a citation or summons was served, stating the cause of complaint, upon the reverend defendant. The pleading states that he went once before the Cardinal, and never went again. As to the question of avoiding scandal by bringing an AS to action against an ecclesiastic, of the nature referred to, my a j 1 BISHOP, I had occasion to refer to you lately from the O'Keeffe. altars of this parish, arid I was particularly careful to make use of the same respectful language that I had always previously employed when Father " men ti ne d your name in public. I stated that you informed me O'Keeffe to it was your wish that I should continue to keep open the male national his bishop, sc h oo l a t Callan after the establishment of Christian Brothers here, and 1 I read an extract from the decree of Propaganda, dated 21st January, 1841, to show that your judgment was to guide me in the matter x>f the management of national schools. I also stated that at the last visitation you very properly directed me to rebuild the offices attached to the parochial residence here, which had become dilapidated. I said nothing else about your lordship. Now, my two curates announced to the congregation on Sunday last that I had, in the two particulars re- ferred to, stated a falsehood from the altar, and that they were directed by you to make the announcement. I therefore inform you hereby that I shall, on the 6th September next, take the necessary steps to have the whole matter investigated in a court of justice. Before I summoned you to a court on a late occasion, I asked you either to prove or with- draw your slanderous charges. You were silent ; and the " summons and plaint" issued. Your lawyers, Catholic gentlemen of high cha- racter, begged of me to withdraw the record, and I did so. I made a sacrifice, and it has not been appreciated ; but I did it for the good of religion, and I seek no gratitude from men. I am still the moderate and reasonable man that I was then and always, and I am prepared to make the same sacrifice over again. This, however, I feel bound in duty to insist upon, namely that you will remove my present curates to another parish. The good of religion in this parish requires it, and the violence of their most unjustifiable attack upon me has so disgusted my good people, that these curates can never enjoy a day of happiness in this parish. Moreover, they are not disposed to submit to me in the discharge of their duty in this parish. This parish, having a work- house in it, requires some priest to be always at hand for sick calls ; yet these curates will leave the parish together for many consecutive hours, without informing me that they are doing so. When I returned home on Friday week, after an absence of three days, I found an infant had been waiting eight hours for baptism, and a woman for the same time with a pressing sick call. No one could give any information about the curates. On Monday last I sent each of them the annexed notice, yet they again both have absented themselves for hours without making their absence known to me. ' Your most faithful servant, 'R. O'KEEFFE.' Rev. Robert O'Keejfe v. Cardinal Cullen. 141 Now, Mr. O'Keeffe, I ask you did you truly state in that Direct ex- letter what you had learned had been said by your curates in the chapel? Yes. Rev. On Sunday previous ? The Sunday previous. O'Keeffe. Are the instances that you state there of matters of neglect - that you refer to, true? Yes, they came under my own knowledge. I had to baptize a child after coming home. (Counsel then read the following letter from the Car- dinal) : '55, Eccles Street, Dublin, 21st August, 1869. ' REV. DEAR SIR, I have received your letter of yesterday, but it Cardinal has not changed my mind in regard to the course which I proposed to ^ u ^ en to you to adopt. I think you ought to put yourself in the hands of your o'Keeffe, bishop, to submit to him, and to endeavour to obtain absolution from advising any censures that may have been contracted. A proper submission s ? mis " will save you from much trouble and anxiety of mind, and will tend to bring things to a happy issue. Any contentions on ecclesiastical matters brought before piiblic tribunals occasion much scandal. Wishing you every happiness, I remain, ' Your faithful servant, + ' PAUL CARDINAL CULLEN.' Then there is a letter of the 23rd August, 1869, from the plaintiff to Cardinal Cullen. 'Callan, August 23, 1869. 'Mr DEAR LORD CARDINAL, I am thankful for your kind letter of the 21st inst. I was taught humility by the grand Kinsella, and it was giving me a lesson in that virtue he was when he brought your de- o'Keeffe to meanour under my notice. I enclose a submission for Dr. Walsh, and Cardinal on if you think it on any grounds insufficient, I will add to it anything you recommend. I assure your Eminence I sincerely dislike even the appearance of opposition to lawful authority ; and I tell you moreover the cause of all this was the unpleasant position I was placed in with reference to the Beziers nuns, after expending their money in Callan. ' I remain, with profound respect, ' Your Eminence's most faithful servant, ' R. O'KEEFFE. ' P.S. This evening I am informed that I was denounced on yester- day to a fourth congregation as a liar on the altar ; but I protest to your Eminence I care nothing at all about it, and I have no unkind feeling to any human being.' Had you been informed on your return that evening that you had been denounced as a liar on the altar ? Yes, just as I was writing the letter a person from Newtown, I think, came in and told me I had been denounced in Newtown. 142 Court of Queen's Bench (Ireland). Direct ex- amination of the Key. Robert O'Keeffe. Cardinal Cullen to Father O'Keeffe. Cardinal Cullen to Father O'Keeffe. Father O'Keeffe to Cardinal Cullen. You sent that letter with the postscript to it ? Yes, with the postscript to it. (Counsel then read the following letters) : ' 55, Eccles Street, Dublin, 28th August, 1869. ' DEAR AND REV. SIR, Having been frequently absent from home, I could not give an immediate answer to your letter. In my humble opinion, you ought to make a full and ample apology to the bishop, and express your determination to abide by anything he may decide. In the next place, it would be well to make a spiritual retreat, and to seek for absolution for the censures incurred. I think if you do all these things you will repair any evil that has been done, and remove every cause of anxiety about your position in reference to censures. Wishing you every happiness, I remain, ' Your faithful servant, + 'PAUL CARDINAL CULLEN.' ' 55, Eccles Street, Dublin, 31st August, 1869. ' DEAR AND REV. SIR, I think it will be well to send the letter of which you sent me a copy to Dr. Walsh. ' The best place for a retreat will be either at the Jesuits at Miltown Park, where there are some learned and skilful men, or among the Missionaries of St. Vincent of Paul, who are excellent spiritual guides. I will give any faculties I can give ; but it will be well to get powers also from Dr. Walsh. ' Wishing you every happiness, I remain your faithful servant, + ' PAUL CARD. CULLEN. i U -tveeiie impartial j udges who preside in the Court referred to ; but, in common by ricar- with every Catholic, I feel that respect for the discipline of your own general. Church should keep you from bringing a brother priest before any lay tribunal. Some communications already received from you leave me no grounds to hope that you will desist from your present proceeding by reason of any mere remonstrance of mine. At the same time, it is my duty to employ the powers which I possess to stop it, if I can. Therefore, I hereby command you to withdraw the case of the Rev. Robert O'Keeffe against the Rev. John Walsh from the Court of Queen's Bench, under pain of suspension ab officio et beneficio, to be ipso facto incurred the moment your counsel begins to state the case to the court and jury. ' Your obedient servant, ' E. M'DONALD, V.G., Diocese of Ossory.' How were they delivered, or how did you receive them ? I was after celebrating mass one Sunday morning in Callan chapel The Lord Chief Justice : From whom are the letters ? From Dr. M'Donald. I was after celebrating mass in my church on a Sunday morning When? I believe the llth of December the llth or 12th December, 1870. I was going from the church through the sacristy into my own house for breakfast, when the clerk said to me, ' Don't go that way ; there are bailiffs there.' Serjeant Armstrong : I object to all this. Witness : I will explain it. The Lord Chief Justice : You may say what is done, but if the messenger in the act of giving you that document said anything you may state it ? Very well, I will state how I received it. It was put into my hand in the train. What train ? At Gowran station. I drove from Callan to Gowran on the Sunday evening. By some one I was told it was a bailiff who handed me the letter. Mr. Fitzgibbon : Where did you get this copy of the 158 Court of Queen's Bench (Ireland). Direct ex- amination of the Rev. Robert O'Keeffe. Bishop Walsh to Father O'Keeffe. Suspension ex infor- mata con- scientia. Explana- tion of term. letter ? In the hall of the Four Courts when coming into this court on the morning of trial. Did you come up to Dublin for the trial ? Yes, and on my way up, I was served with the first paper at the station of Gowran. Which is the first paper? The one read. As I was coming through the hall I saw Dr. M'Donald standing there with a man that I was informed was a bailiff, and in Dr. M'Donald's presence the man put this second document into my hand. I put it into the hands of the Chief Justice. Then that trial proceeded, and you got a verdict for 100?.? Yes. Was this the next communication you got? (produced) Yes. 'Kilkenny, llth Jan., 1871. ' REV. SIR, As you have disregarded the ordinary mode of proce- dure, I, after mature deliberation, send you hereby a suspension " ex informata conscientia ab online, officio et beneficio." You are aware that from this suspension there is no appeal ; and that should you violate it you will incur an irregularity. (Seal) + < EDWARD WALSH.' Translation of Suspension (the original in Latin), enclosed in foregoing letter. (FOURTH SUSPENSION.) ' It having been established to us that the Rev. Mr. Robert O'Keeffe, priest, is guilty of misconduct, for reasons which worthily influence our mind, and for which we are bound to give an account to God and to the Apostolic See, as we are commanded, and from an informed con- science, we suspend, and declare him suspended, from rank, office, and benefice, and order the decree of suspension to be made known to him. 'Given at Kilkenny, llth January, 1871. (Seal) ' EDWARD ( Bishop). ' THOMAS KELLY (Actuary).' Now before being served with this suspension, had there been any citation, or trial, or inquiry in reference to it ? None whatever. What is the meaning of a suspension ex informata con- scientia? It is a sort of suspension adopted sometimes in the case of regulars, when the superior or the prelate in au- Rev. Robert O'Keeffe v. Cardinal Cullen. 159 thority over the regular ascertains beyond possibility of Direct ex- doubt that the regular is guilty of gross misconduct. ^f^tho Do you mean one subject to the vows of an order ? A. Rev. person who makes vows of obedience. We do not. We o'Keeffe. promise obedience, which means canonical obedience, but the regular clergy and regulars generally make vows of absolute obedience. Is that proceeding ex informata conscientia, according to Where the rules of your church applicable to secular clergy ? Not a PP llcable applicable to such a case as mine. Regulars give up their own will altogether, and make a vow to be guided by the direction and will of their superiors, and sometimes when a superior ascertains that a subject or inferior is guilty of some grievous crime, it is private and not public, for the good of religion and the advantage of the person himself. He does not want to expose him. The Lord Chief Justice : What is the meaning of the ex- pression ' from this there is no appeal ' ? There is only an appeal to the Pope in those cases. That case you last spoke of? That I last spoke of. Would you say it does not apply in the case of a parish priest '? Not at all to the case of a parish priest. Does the right of a parish priest to be tried and con- demned for a canonical offence apply as much to this particular description of offence, as much as to any other ? Certainly. The right to be tried ? Certainly. He cannot be con- Father deinned unless a canonical offence is brought against him at objection a regular trial. I may say with regard to all these censures to le s alit y they were issued by a man in his own cause, and for that pensions, reason alone totally and entirely invalid. Mr. Fitzgibbon : Is there any regulation to that effect ? There is. The Lord Chief Justice : Who is the man ? The bishop or the vicar-general. The bishop and the vicar-general we consider as the one person, and the offence I was charged with, or supposed to have committed, was bringing the bishop into a secular court ; that is, that the person who served me with suspension, issued that suspension because I simply quarrelled with himself. Mr. Fitzgibbon : When you speak of a man being a judge 160 Court of Queen's Bench (Ireland). Rev. Robert O'Keeffe. Direct ex- in his own cause, are you speaking of general principles, or tne regulations of the Church ? Both. It is the established rule of the canon law that no one can be a iudere in his own Cause. ^ Serjeant Armstrong : What canon ? The Lord Chief Justice: You will very likely have to comment upon this. Serjeant Armstrong : I know that, my lord, but I ap- prehend the man is talking of things with respect to which he is altogether innocent of any knowledge. Witness : I know the canon. Serjeant Armstrong : I object to statements of the canon law by word of mouth. Witness : I will produce the law. Serjeant Armstrong : I object to the evidence. Mr. Fitzgibbon (to witness) : Besides your position as parish priest of Callan, were you chaplain to the Union Workhouse ? Tes. What was the salary for that office? 60 1. a year. And what were the duties ? The duties were to celebrate on Sundays and holidays, and to attend to all sick calls, and to attend on Saturdays for confession, and on every occasion on which a priest was required. Were all those duties to be performed in the building of Ihe Workhouse ? In the building of the Workhouse. I suppose there was a chapel there ? There was a chapel there, and mass celebrated in it every Sunday, and confession held in it. Did you yourself before the differences, officiate yourself, or had you an arrangement for doing the duty between yourself and the curates ? I went about once a month, and the curates on other occasions and on Sundays. The curates generally attended sick calls, but I always attended to sick calls when sent for to the Workhouse. Do you remember on the 4th of March, 1871, your curates changing the place where they were in the habit of celebrating mass ? Yes, they left my church, and discon- nected themselves with me altogether. Where did they go ? To the Friary Chapel. The Au- gustinian Chapel, in the town of Callan. Had you got any intimation before that of their intention to go ? None whatever. Conduct of the curates. Rev. Robert O'Keejfe v. Cardinal Cullen. 161 Did you get any intimation of their not going to the Direct ex- Workhouse on the following day, Sunday the 5th ? No ^thl intimation. Kev. Did they go ? No, they did not. They left the paupers o'Keeffifc without mass. Then there was no mass at the Workhouse ? There was no mass at the Workhouse. Now, between that and the following Sunday, did you make any arrangement about having mass in the Workhouse chapel ? I did arrange with a clergyman named O'Dwyer to celebrate mass on the 12th, the following Sunday. Did he go there ? No, he did not go there. When did you first get notice he was not going what day of the week ? I am not sure whether it was on Saturday night late, but I think it was on Sunday. You went yourself then to the Workhouse ? I did not go to celebrate mass. However, you went up there ? I went up there and gave out devotions for half an hour, as the paupers had not the opportunity of hearing mass, and repeated prayers for the paupers. Did you then get permission afterwards for the paupers to go to the chapel ? Yes, I got permission. How long did that continue ? For two or three Sundays. From that time down to the month of July following, did Mr. Walsh and Mr. Neary continue to officiate in the Friary chapel ?- -Yes. And you in the parish chapel ? In the parish chapel. What terms were you on with them during the time ? We had no intercourse whatever after they separated from me. Now do you remember commencing an action against Action for Mr. Neary on the 15th of April, 1871 ? I do. S e b / Mr. Fitzgibbon (to the Chief Justice] : This, my lord, is O'Keeffe an action for libel, for having written as follows : M^Neary his curate. Observations written by the Rev. P. Neary in the Chaplain's Book in the Callan Union Workhouse. '23rd March, 1871. ' As a ratepayer of this union, and as a priest of this parish, con- sequently as one interested in the -welfare, spiritual and temporal, of M 162 Court of Queen's Bench (Ireland). Direct ex- amination of the Rev. Robert O'Keeffe. the inmates of this house, I respectfully submit that these poor people ought not to be sent out on Sundays to hear mass celebrated by a suspended priest, in a church where the altar has been turned into a platform for slander and buffoonery ; where, Sunday after Sunday, the bishop of this diocese, in the eightieth year of his age, is slandered and lampooned ; where a deliberate, systematic, and persistent effort is being made to bring the bishop's person and authority into contempt, and to drag into schism such of the parishioners as can be duped by sophistry or terri- fied by altar denunciations. If the poor are to be sent out surely they ought, at least, to have the option of going to the convent, where they would hear the gospel preached and mass celebrated by unsuspended priests. ' I also beg respectful!}' to submit that the poor of this workhouse are in justice entitled to the services of an unsuspended chaplain, and ought not to have forced on them a chaplain of whose ministrations they cannot in conscience avail themselves. ' Meanwhile, I and my fellow cura,te will continue as heretofore to discharge the chaplain's duties, with one exception. We cannot cele- brate in the Workhouse chapel ; just as we cannot in any of the four public churches of the parish, except the church of the Augustinian Fathers, in the town of Callan, where, on Sundays and holidays, there is a continued succession of masses, from morning to mid-day. 'In reference to the resolution proposed at the Board, on the 16th inst., for allowing the poor out to mass, pending the settlement of the contention or misunderstanding of the priests of the parish, I have to inform the Board that there is no contention or misunderstanding to be settled between the priests ; but there is one of a most serious nature between the Rev. Mr. O'Keeffe and the bishop of the diocese. ' On Sunday, the 12th inst., I find the following entry made by the Chaplain in this book : " Officiated at the altar." As I learned that there was no mass that day at the Workhouse chapel, I felt quite puzzled to know what such an entry meant. Upon inquiry I found that the chaplain on that Sunday simply recited the rosary, a form of prayer daily recited by the faithful, without ever once imagining that they are thereby officiating at the altar. ' There was no necessity for having two or even one mass celebrated in the parish church on the 5th, 12th, and 19th inst., as on these Sun- days five or six Masses were celebrated in the Augustinian church, distant only about two minutes' walk from the parish church. The non-celebration of mass by the chaplain in the Workhouse on these Sundays afforded him three additional opportunities of publicly de- nouncing his ecclesiastical superiors, and three additional chances of promoting a schism in the parish. 'P. NEARY, C.C.' Now that was afterwards tried, and yon got a verdict for 100?. Yes. Rev. Robert O'Keeffe v. Cardinal Cullen. 163 Where was the publication of the words you complained Direct ex- of in that ? Part of it was written in the chaplain's book of ami f na t ion the Callan Union Workhouse, by Mr. Neary. Kev. [Copy of above entry in chaplain's book on 23rd March, 1871, handed in.] Now, it is stated here that ' the altar has been turned into a platform for slander and buffoonery, where Sunday after Sunday the bishop of this diocese, in the 80th year of his age, is slandered and lampooned.' Was that true? It is a wicked libel upon me. Was there any foundation whatever for it ? No founda- tion whatever for it. Had this gentleman, Mr. Neary, been officiating himself elsewhere during the time he is referring to there ? Yes. I believe you were not present at any of his ministra- tions ? No. Do you remember getting this letter (produced) from the Cardinal ? Yes ; I got that letter from his Eminence on the 1 7th July, in the evening. (Counsel read the following letter from Cardinal Cullen) : 'Dublin, 59, Eccles Street, July 16th, 1871. ' EEV. DEAR SIR, The accounts which have reached me of dissen- Cardinal sions and disputes in Callan have afflicted me very much. Cullen to ' Being now in a position to attempt to restore peace in that locality, I (yK ff am determined to make every effort to obtain so desirable a result. ' Before I take any step in the matter, I would be glad to have an intervieAv with you, in regard to the present state of things. ' I shall be at home on the 19th, 20th, and 21st inst. (Wednesday, Thursday, and Friday next), from 10 to 11 o'clock each morning. If any other hour will be more convenient to you, I will try to make a different arrangement, if you will write me a line. ' If you call at any of the hours above mentioned, I will be happy to see you. ' Your faithful servant, + ' PAUL CAED. CULLEN; The Lord Chief Justice : This, as I understand, is the first letter of the Cardinal's for a long time. Mr. Fitzgibbon : It is the first letter since the month of September, the year but one previous. The last preceding one was immediately before Mr. O'Keeffe had written to Borne namely, in September, 1869. M 2 164 Court of Queers Bench (Ireland). Direct ex- a n t a jf e on R ev Kobert Keeffe. Father O'Keeffe to Cullen (Counsel here read the following letters from Father O'Keeffe to Cardinal CuUen.) ' Callan, July 17, '71. ' His Eminence Card. Cullen. i j^ y L ORD CARDINAL, I have just now, on my return from a con- sultation with my lawyers at Kilkenny, found on my table your Eminence's favour of yesterday's date. I am under an engagement to ^ me w ^h Lord Desart on Thursday, but, if you wish it, I will call upon your Eminence on Friday next. It can scarcely be necessary, however, that I should do so. I want nothing in the wide world but to be allowed to do my duty to God and man in peace and charity with all mankind. I have, however, a heavy bill against Dr. Walsh, which I shall certainly insist on being paid by his lordship, or somebody else. It amounts to about 700/. I will write fully to your Eminence on to-morrow, and send you the particulars of this demand. I will content myself at present with sending you copies of papers I have this day put into the hands of my lawyers for the case of O'Keeffe v. M'Donald, at the Wicklow Assizes. ' I have the honour to remain, your Eminence's most humble servant, < R. O'KEEFFE.' Callan, July 18, 1871. Father ' MY LORD CARDINAL, The nonsuit in July last cost me over CtmliSl* 200Z., including 108Z. 12s. Qd. paid the Bishop's solicitor; the action Cullen. against Father Walsh cost me about 150/., and the action against Father Neary has cost me another 100Z. On the Sunday after the last trial, both Father Neary, in the chapel at Kells, and Father Walsh, in the Friary Chapel here, repeated the slander for which I took the action. Father Walsh said : " Father Neary was fined 1001. by British law for saying that Mr. O'Keeffe was a suspended priest ; and I tell you now that he is a suspended priest, and let him fine me now another 100/. if he can. Dr. M'Donald was present in court, prepared to swear that he was a suspended priest, but he would not be allowed to swear it." On the following Sunday I informed my congregations at both masses that I accepted Mr. Walsh's challenges on the part of himself and Dr. M'Donald, and that I had sent for two writs to Dublin. Oneof these was served on Dr. M'Donald on the 29th June ; and Avhen the bailiff called at the Callan Lodge to serve Mr. Walsh, he was assaulted in the most violent manner by Mr. Neary. I obtained a summons to petty sessions for service on Mr. Neary ; but he fled from service before the last sessions, which were held here on the 6th inst., and I have got a new summons for the court to be held on the 3rd proximo. I believe that this new summons has been served on him. ' There were fifty-two cases for trial at the last sessions, nearly all Rev. Robert O'Keeffe v. Cardinal Cullen. 165 arising from contentions between my supporters and those of tlie curates ; and Mr. Hort, K.M., remarked that a fearful responsibility lay on the shoulders of whoever was accountable for the state of things at Callan. I am quite prepared with the case against Dr. M'Donald for the Wicklow Assizes, and it has cost me, up to this, about 50Z. All these sums of money, with the 100Z. damages in each case against the curates, amount to 700/. ; and the authorities of the diocese owe me this money. I cannot make them pay it by law ; but unless I be paid it, I will proceed against Dr. M'Donald at Wicklow ; and if I fail to get paid the 700Z., I will renew the action against the bishop, in the event of his recovering his mind. I was nonsuited in consequence of the open and barefaced perjury of Father Walsh, who swore that he was not directed by the bishop to contradict me on the altar on the 15th August, 18G9 ; but Father Neary swore truly at the last trial, that the bishop did direct and authorise the contradiction. I left nothing undone to keep all the cases out of court ; and, when everything else failed, I wrote, before the last trial, to Lord O'Hagan, begging of him to insist on your Eminence's interference to keep the case out of coiirt. I concluded my letter in these words : " Your position gives you a right to insist that our holy religion will not be disgraced by conten- tions which were unmeaning from the beginning, and which, in the end, will inflict a wound on religion which will not be cured for gene- rations yet to come. My desire to avoid giving pain to your lordship, and everyone like you who loves his religion, is my apology for begging your interference in this matter, in the interests of religion and charity." ' I submit, as a matter of course and dut}', to the authority of your Eminence, and I entertain the highest respect for your person and holy office ; but your Eminence cannot expect me to forgive a debt which is fairly and honestly due to me. The first Sunday that Mr. Neary celebrated mass in my church, he said he was directed by the bishop to say to my congregation that the bishop thought I was misspending my time in the parish by becoming a schoolmaster. I know that I have been unfairly represented to your Eminence in the matter of this teaching, and I wish that your Eminence would send a Dublin priest to spend a week in my house, and report to you how I employ my time. I answer all sick calls by night and day, as soon as possible after they are delivered to me ; I baptize all the children, and witness all the marriages. I go in turn to the four chapels on Sundays, in- cluding the Workhouse, and always give the people instruction. I am always present at the afternoon devotions in my church, including vespers &c. on Sundays and holidays. I give mass and communion, at all the stations; and whenever a parishioner wants me on any business whatever, the person is at once ordered into my parlour, and invited to take a seat. I make myself useful to innumerable people ; and what, perhaps, no other P.P. in Ireland has done, I have made out Direct ex- amination of the Ilev. Robert O'Keeffe. 166 Court of Queen's Bench (Ireland) . Direct ex- amination of the Kev. Robert O'Keeffe. Cardinal Cullen to Father, O'Keeffe. an index to my parochial registers, which enables me at once to find out the name of any child whose baptism is recorded on the books, or of any man whose marriage is entered in them. I have now one hundred boys in my national school; about twenty-five are reading Latin, and about forty French. I have made, to a great extent, French the language of the school, and no boy pays fees. Many of the boys are the sons of small farmers in other parishes, who have come to live in town to qualify under me for a profession. I swore in the Queen's Bench that, as a general rule, I spend three and a half hours every day in reading and writing, in addition to the time I spend in the school, and that the time I give in the school does not in any way interfere with my parochial duties. Send, for instance, the Rev. Michael Cody, of Phibsborough, a native of this parish, to spend a week with me, and I promise your Eminence he will report to you that he is not acquainted with any other P.P. who does his duty with more regularity and exactness than I do. My dear deceased friend, Dr. Renehan, of Maynooth, was fond of saying "Audi alteram partem;" and I wish Cardinal Barnabo had thought of it when he was refusing me leave to make a visit to Rome. ' I have the honour to remain, your Eminence's most humble servant, ' R. O'KEEFFE.' Have you paid for the nonsuit in Mr. Walsh's case ? Yes ; to Mr. Poe. In the actions you got damages against Mr. Walsh, 250?., and against Mr. Neary IOC/. ? Yes. Have you received any of the amounts you recovered ? No. Have you to get them still ? I have no expectation of them. Did you hear Mr. Hort, the magistrate, speak of the perjury at the petty sessions ? Yes, I was present. Was any clergyman sent down from Dublin, or was there any reference made to your request in that letter ? JS"one. Did you truly state in that letter to his Eminence the matters contained in it? I did, truly. (Counsel read the following letters) : 1 Dublin, July 20, 1871. ' REV. AND DEAR SIR, I received on yesterday your letter dated July the 18th, 71. It was with great regret I learned from it that your parish was so much disturbed, and that " there were 52 cases for trial at last sessions, nearly all arising from contentions between your Rev. Robert O'Keeffe v. Cardinal Cullen. 167 supporters and those of the curates." Such a state of things is most deplorable, and I believe no other parish in Ireland of the same popula- tion can exhibit such a picture. In my humble opinion the evils referred to owe their origin to resistance to episcopal authority ; and I think it would be your interest, as well as your duty, to re-establish that spirit of obedience which is so necessary in the Christian dispen- sation. 'As to all the law-suits which you mentioned, I think it is a misfor- tune that you ever engaged in them. They are generally the occasion of great affliction of mind, to say nothing of the scandal they give when carried on by ecclesiastics, and of the great loss with which they are accompanied of money, which would be, if properly expended, of so much use to religion, and charity to the Church and the poor. ' I am persuaded that the words of St. Paul, 1 Cor. vi. 7, are especially applicable to any ecclesiastic who brings his brother ecclesiastic before the tribunals of this world : " Jam quidem omnino delictum est in vobis, quod judicia habetis inter vos. Quare non magis injuriam accipitis ? Quare non magis fraudem patimini ?" ' I shall say no more upon this matter, but I implore of you, per viscera misericordia; Dei nostri, to consider the evils and scandals which have arisen from the law-suits in which you have been engaged, and to endeavour by every means in your power to extricate yourself from your present position, and to set yourself right with God and the Church. ' I humbly pray that our Divine Lord may give you every necessary grace to do His holy will, and wishing you every happiness, ' I remain your faithful servant, + ' PAUL CARD. CULLEN; Direct ex- amination of the Rer. Eobert O'Keeffe. O'Keeffe to Cardinal Cullen. Callan, July 21, 1871. ' MY LORD CARDINAL, I have the honour to acknowledge your Emi- Father nence's letter of yesterday's date. The evils prevailing in this parish are not attributable to resistance to episcopal, but parochial authority ; and I have done all in my power to remove them. I have constantly impressed on my parishioners the obligations of peace and charity to all men, and the strict observance of the laws of the land ; but it is idle to think that anything but disorder will prevail here, while priests con- tinue to preach to parishioners that " their P.P. is not a priest ot God, but of the devil ; that he is leading crowds after him into hell ; that everyone who hears his mass commits a mortal sin ; and every one receiving a Sacrament from him commits a sacrilege." This language has been uttered frequently by a man holding up the holy Sacrament to public view, and swearing by the body and bkod of Christ that the P.P. of Callan is a suspended priest. This language is 168 Court of Queen's Bench (Ireland}. Direct ex- amination of the Rev. Robert O'Keeffe. dinned into the ears of everyone in the confessional ; and, if questioned, is repeated with an oath. This language was repeated in the public street at 11 o'clock on the night of Sunday, the 14th of May, by a priest so much under the influence of drink as that he had to be removed by another priest from the street to his house ; and this language was uttered in the chapel of Kells on the 16th of April by a priest who, I in- formed my congregation, was in the same state while expressing it on the altar that he was in when he repeated it in the street. I said to many thousands of people (several persons who were in the Kells chapel on the 16th of April told me so) that the priest was unable to read the mass or the prayers before it ; and I say to your Eminence now that Mr. William H. Butler, who proved the utterance of this language by Mr. Neary in the Kells chapel at the last trial, called on Dr. M'Donald on the 19th of June to complain that Mr. Neary had denounced him on Sunday, the 18th, at Kells (the next Sunday after the trial), and said to him (Dr. M'Donald) that he ould have said of Father Neary much more damaging things than he did say, if he were not anxious to say as little as he could. All this, my Lord Cardinal, is only a sample of the means that have been resorted to in order to destroy my character, and degrade me before my own people. Send a commissioner to Callan to report the state of things to your Eminence. ' The law-suits all originated in the denunciations of me as a liar on the altar, by authority alleged to have been given by Dr. Walsh, and proved by Mr. Neary at the last trial to have been given by his lord- ship. Does your Eminence think that St. Paul looks upon ecclesiastics as privileged to ill-treat everyone to whom they have a spite, and to defame and vilify, by pretended censures, everyone who does not express his thankfulness for the most wicked and unholy slander ? I sin- cerely respect your Eminence, and would do at your desire anything at all that I could, but what is the use of asking me to do impossibilities ? Lives will be lost at Callan if order be not restored. Four thousand people hear my two masses every Sunday, and the lessons of peace which I inculcate to them will not much longer avert the occurrence of terrible crimes. The Oblate Fathers, who gave a mission here in April, 1869, know me; and Mr. Duffe, the Vincentian, made a visit to Callan, to inspect the Callan Lodge for Mrs. Maher, of Cabra. Send one of those gentlemen to report the state of things to your Eminence. I send you papers by book post that will give your Eminence some further information. ' I complained of the Commissioners of Education to Lord Spencer, and the Lords Justices, in his absence, directed the case of my school to be settled. I have received an apology from the Commissioners for the delay of payment of salaries to the teachers, and receipts filled up for the amounts due. I have been obliged to introduce Dr. Walsh dis- paragingly into the correspondence, but through necessity, as in other Rev. Robert O'Keeffe v. Cardinal Cullen. 169 cases. I have never resisted his authority, or disrespected any order or Direct ex- command given me. Mr. Harkin was gained over by the bishop's amination friends to report against my school ; but truth and justice have in this R ev case triumphed, as they must ultimately in every other. Robert ' I have the honour to remain, your Eminence's most humble servant, ' E. O'KEEFFE.' From what did you quote the language in your letter about the Eev. Mr. Neary ? From what I heard. Had you informed your congregation about his being re- moved intoxicated to his house ? I had. Was that true ? It was true. Where is the Kells chapel? It is an adjoining parish, and when they had no chapel in Callan they took advantage of the chapel of Kells being near my parish, to celebrate mass. My curates went there for the accommodation of the people. In reference to the statement in your letter about being degraded before your own people, was that statement made that you have put into the mouth of Mr. Butler ? Yes, it was proved by Mr. Butler in this chair. What trial was that ? That was the action against the Eev. Mr. Neary. In Avhich you recovered 100Z. damages? Yes. Was it a fact that the number of people you refer to in the letter were in attendance at your chapels ? Yes ; I con- sidered there used to be about 4,000 at the two masses. You say in the letter that two of the chapels were closed. Which of the chapels were closed ? I refer to the chapels at Coolagh and Newtown. The country chapels mentioned at the beginning ? Yes. (Counsel here read the following letters) : 'Dublin, July 22nd, 1871. ' MY DEAR FATHER O'KEEFFE, T have received your letter of yester- Cardinal day, and I must say in reply that, in my opinion, nothing can explain S u H en to the disturbed state of your parish, so accurately described in your o'Keeffe. preceding letter, but past and present resistance to episcopal authority. Perfect peace prevails in almost every parish in Ireland ; and it will continue to exist, unless attempts be made to resist those who have been placed by the Holy Ghost to feed the flock of Christ, and who have inherited their episcopal authority from the holy Apostles. In other countries the state encourages occasionally the clergy to resist 170 Court of Queen's Bench (Ireland}. Direct ex- aminatio of the Eev. Robert O'Keeffe. their bishops ; and in that way great wounds are inflicted on the Church. Such schisms and dissensions have been always the source of great grief to our Holy Father; and I have reason to know that, even in the midst of his great sufferings, Pius IX. feels very much for the present state of Callan, and is anxious that peace should be restored to that afflicted district. Whilst our Holy Father has so much to suffer from his enemies, and is fighting so gloriously the battles of the Lord, should not his children avoid everything calculated to aggravate his sorrows? Hence, I think if I had no other motive for acting but a determination not to increase the troubles of the Church and of her Supreme Pastor, I would abandon at once all litigation, and seek to be reconciled with my bishop and other priests. I would say with St. Paul, " Si quis autem videtur contentiosus esse ; nos talern consuetu- dinem non habemus neque ecclesia Dei." ' Some time ago I read in the life of St. Francis de Sales that some one charged him with having committed a serious offence, and that the saint, rather than undertake angry discussions, and occasion divisions among the clergy, bore patiently the calumny, until it pleased God to supply, without any effort on his part, proofs of his innocence. Were this system more generally adopted, and were we to place the vindication of our rights in the hands of God, those who have been really injured, and those who imagine that they have been injured, would suffer very much less than they have to bear when they under- take to place their own justification before the public. 1 1 will now merely add, that the present Pope, whilst limiting and abrogating other censures, confirmed all penalties of the canon law against those who drag ecclesiastics, and especially bishops, before lay tribunals, and there charge them with criminal offences. The Pope's bull regarding censures was handed to every bishop in the Vatican (Ecumenical Council last December twelve months, and is now known over the whole world. While such penalties as those I refer to are hanging over his head, I cannot conceive how any priest can venture to charge other ecclesiastics with calumny, lying, drunkenness, and endeavour to prove such charges before a Protestant judge, and in the presence of numbers of persons who must be sorely scandalized by what they hear in such a case. Moreover, I cannot understand how any priest, having once incurred the censures reserved by the Pope, can continue to officiate, and to bring on himself innumerable irregu- larities. ' In conclusion, I implore of you again to give up all litigation, and to set yourself right with the Church. The gaining of a law-suit may be pleasing for a moment to the priest who gains it over his brother priest; but such an event does not tend to raise the character of the person concerned, or to merit for him the applause of the just and virtuous. Rev. Robert O'Keeffe v. Cardinal Cullen. 171 In any case we must say, what doth it profit a man to gain the whole Direct ex- world if he lose his own soul. amination of the ' Wishing you every happiness, I remain your faithful servant, Kev. + ' PAUL CARD. CULLEN.' msSfo. Callan, July 23rd, 71. ' MY LORD CARDINAL, I have the honour to acknowledge the receipt of your letter of yesterday's date. ' I admire your Eminence's charity, and the Christian spirit with Father ,. , \ .. , . , , , V M r , f O'Keeffeto which you preach it ; but let me beg of you not to allow the zeal ot Cardinal your charity, though queen of virtues, to eat up your sense of the Cullen. cardinal virtue, justice. Your Eminence's letter would be very appro- priate, coming from a preacher of the Word ; but in the matter of restoring peace to this disturbed parish, I must look upon you as a judge. Viewing your Eminence in that light, I feel that I can satisfy you, that from the day I was denounced by rny own two curates to four congregations of my own flock as a liar on the altar, I have done nothing whatever that could fairly be construed to express on my part an unkind feeling to any human being. I have not unnecessarily given publicity to anything damaging to religion ; and I have defamed no one, except where I knew, as a theologian, that I was warranted in doing so. I need not tell your Eminence that every theologian specifies, as one of the cases in which defamation is lawful, one's own just defence. I have acted all through with full deliberation ; and have made up my conscience to it, that I have all through conducted my defence "juxta moderamen inculpatae tutelse." Your Eminence can- not hold, as a theologian, that the censures of the constitution Apostolicce Sedis are binding sub gram nocumento ; and our common Holy Father would be aggrieved if he were told he was understood to mean by the 6th and 7th censure, page 5, that, if one ecclesiastic be ill-treated by another, the aggrieved party must not be allowed to make his appear- ance in any court. I assure your Eminence that it was publicly announced by Mr. Walsh here, after I had published my letter to the Poor Law Commissioners, which I herein enclose, that the reason why I was not denounced was, that the bishop was afraid of the law. I firmly believe the matter was so. If your Eminence has any fear that I have incurred censui'e, I will discuss the matter fully with any theo- logian you may name, and make out, I hope to your satisfaction, that a shadow of ecclesiastical censure has never fallen on my shoulders. If there must be a trial at Wicklow, several " experts " will prove that I have not been suspended ; but as in all the other cases, I will do my utmost to prevent a trial. I will go to Kilkenny on to-morrow to see Mr. James Poe, Dr. M'Donald's solicitor, and I will lay down to him the very lowest sum I can accept. I have got execution against Mr. 172 Court of Queen's Bench (Ireland). Direct ex- amination of the Eev. Kobert O'Keeffe. Cardinal Cullen to Father O'Keeffe, advising his with- drawal from litigation. Neary for 203Z. 17s. 5cZ., as you may see by the enclosed letter, and I am sure to get execution against Mr. Walsh for more than 250Z. next November. These gentlemen were supported against me by the acting authority in the diocese, and is it fair to have these sums paid me by a certificate of bankruptcy ? Your Eminence knows how I wrote to Lord O'Hagan before the last trial ; and Dr. Lynch can tell you how 1 wrote to his lordship and Dr. O'Hanlon before the case against Mr. Walsh was tried last December. I have made an appointment with my three lawyers to meet them at Waterford on Thursday ; but if Dr. M'Donald will do what I think James Poe will recommend him on to-morrow, the law is at an end. ' I have the honour to remain, your Eminence's most humble servant, ' B. O'KEEFFE.' Was Mr. Poe Dr. M'Donald's attorney in the action ? He was. [The following letter from defendant to plaintiff, read by counsel.] 'Dublin, July 26,71. ' MY DEAR FATHER O'KEEFFE, One of the Fathers says that per- severantia boni operis virtus est ; and encouraged by that authority, I have determined to write to you again, and to implore of you to abandon your present position, and to endeavour to settle everything with the bishop. It is a sad case to have so much money thrown away on law, and to see so many cases of litigation in your parish. It is still worse that there should be great danger, as you state, of bloodshed among your people. It must be a sore affliction to you to live in such a state ; and I am sure it would be a great relief to yourself to have things brought to the condition in which they are in other parishes, where the people live in peace, and where there is no risk of bloody collisions. ' I am most anxious to see peace restored, and I think you ought to make every sacrifice to bring about so desirable a consummation. I would counsel you to give up all claims on those with whom you have been at law, to abandon all lawsuits for the future, and to make a full and absolute submission to the bishop. ' If you do all this, I am sure the past contentions will be forgotten, and you will acquire merit in the sight of God and man. Wishing you every happiness, ' I remain your faithful servant, + 'PAUL CARD. CULLEN.' When you got that letter did you withdraw the action against Dr. M'Donald and the summons against the Eev. Mr. Neary? Yes. Rev. Robert O'Keeffe v. Cardinal Cullen. 173 Without any further communication from the Cardinal Direct ex- but that letter ? Without any further communication. "Safe * Having withdrawn them, did you then write this letter Rev. of 27th July ? Yes. * ' Callan, July 27, '71. ' ''Mr LORD CARDINAL, It is painful to me to be such a trouble to Father your Eminence. CaS ' I have withdrawn the action against Dr. M'Donald, and the sum- Cullen. mons in Mr. Neary's case. ' Dr. Lynch and Dr. O'Hanlon, at my urgent entreaty, interfered as peacemakers last December, and they can tell your Eminence how they failed to bring it about. I would ask your Eminence to refer the money demand now to them as arbitrators, or at least to allow me to make my case to them with a view to their making a report on it to you. I want money for no purpose but to pay the debts 1 have in- curred in connection with the suits, and I would get three times the amount I claim from my own and the surrounding parishes; but I have said to friends who proposed a public subscription, that such a proceeding would be considered by your Eminence as the celebration of a triumph over authority a victory I have never sought and never will seek. If I die possessed of money, you can see by the enclosed will the last I have made what would be done with it. ' I have been put to great expense in several other ways, and it has cost me more than 100/. to maintain my position as head of the educa- tion of the youth of my parish. The religious instruction of the children at the Christian Brothers Schools has been taken out of my hands altogether ; and these children would be punished in the school if they came to receive instruction from me on Sundays. Your Emi- nence knows very little of the ill-treatment in many ways from which I have been suffering for the past two years. ' I have the honour to remain, ' Your Eminence's most humble servant, 'K. O'KEEFPE.' Now was it a fact that it cost you 100Z. to maintain your position at the head of education ? Yes, money out of my own pocket. How was it spent ? It was spent on the improvement of the schools. National schools ? National schools ; paying salary to a superior teacher, and giving books and requisites to the chil- dren free, and various other ways like that. (The following letter was then read) : 174 Court of Queen's Bench (Ireland) . Direct ex- amination of the Eev. Robert O'Keeffe. Cardinal Cullen to Father O'Keeffe. 'Dublin, 29th July, 1871. ' MY DEAR FATHER O'KEEFFE, I am happy to learn that you have withdrawn proceedings against Dr. M'Donald and Father Neary. ' I hope that you will now continue in the path on which you have entered, and not stop until you shall be fully reconciled to your bishop and to the Church. The world is now so much disturbed, and religion and the faithful have so much to suffer, that every good Christian ought to avoid everything calculated to increase dissensions or to aggravate the sufferings of the Church and its Supreme Head. 'As to money matters, I would advise you to follow the counsel of our Lord " Quserite primum regnum Dei et justitiam ejus et castera omnia adjicientur vobis." Settle first the spiritual matters, submit to the bishop, and God will settle everything else. Wishing you every happiness, ' I remain your faithful servant, + 'PAUL CARD. CULLEN. ' P.S. I return the will, which I hope may not be required for a long time.' The Lord Chief Justice ; May I ask, did that settle the action against Dr. M'Donald ? Yes, my lord. Notice of trial was withdrawn by consent of both parties. Mr. Fitzgibbon : Were there any further proceedings taken after that occasion ? No. Any further proceedings taken in Mr. Neary's case ? There were subsequently. I was obliged to fall back on it in self-defence. After you had withdrawn the action against Dr. M'Donald in that way, where did you go ? I went into the retreat of the clergy of the diocese. Where ? At the college of Kilkenny, on the 23rd July. How long did you remain there ? A week. Did you meet Dr. M'Donald there ? Yes. Were you on friendly terms ? Yes, we shook hands with one another, and exchanged friendly conversation. Do you remember anything occurring with Mr. Neary on the Sunday you went back after coming out of the retreat ? Yes. (Counsel read the following letter) : ' Callan, August 8th, '71. Father ' My DEAR DOCTOR, I promised you on Saturday that I would not O'Keeffe to again speak unfavourably of anyone in public if a fresh attack were not Action against vicar- general with- dra\ra. Rev. Robert O'Keeffe v. Cardinal Cullen. 175 made upon me. This attack has, however, been made, and I think it Direct ex- will be necessary for me to bring Mr. Neary's conduct before my con- animation gregation on Sunday next. On last Sunday he was only prevented R ev from entering my church at twelve o'clock, in order to tear the vest- Robert ments off my shoulders, by my clerk, who, anticipating his visit, e> adopted the precaution of locking the outer gates. There were more general than 3,000 people in and around my church, and I firmly believe if complain- he assaulted me in their presence he would never leave the church cura t et alive. . He paraded the streets very late at night, escorted by a gang of the very worst characters of the town, abusing me everywhere in the most violent manner. It will give you an idea of the sort of persons by whom he was accompanied when I inform you that the leader of the party was the notorious Fenian, Heffernan Dunne, the former mock candidate for the county, and a ruffian who was convicted three times of violent assaults at the single sessions held here on the 6th ultimo. It is commonly believed here that Father Neary was under the influ- ence of drink from before the time he read eleven o'clock mass in the Friary Chapel till he left the streets for the last time at one o'clock on Monday morning. I feel it my duty to send a copy of this letter to Cardinal Cullen. I would recommend you to come out at once, and see what can be done. You know I shall be happy to see you. ' I remain, my dear Doctor, yours faithfully, conference with you on the matter. If you could come up on Friday, Robert I can be at home that day at one o'clock p.m. If you prefer any other day, I can suit myself to your convenience. If Friday suit you, be so good as to write me a line. ' Wishing you every happiness, ' I remain yours faithfully, + 'PAUL CAED1NAL CULLEN.' ' Callan, October 4th, '71. Father ' MY LORD CARDINAL, I have the honour to acknowledge the receipt O'Keeffe to of your favour of the 2nd inst., and to say in reply that it is impossible for me to recede from the terms of my letter to your Eminence dated the 24th ultimo. ' Lest I should be considered to acquiesce in the refusal of my vote on the 19th ultimo, I wish to say to your Eminence that I think I have not been fairly treated in the matter. Your Eminence informed me on the 8th September that I should be ready to establish my right to vote on the 19th, and I informed you on the 10th that I was quite prepared to do so ; yet, nine days afterwards you rejected my vote without having afforded me an opportunity of proving my right to give it. Notwithstanding this, I would still do anything that I could to oblige your Eminence, whether you had jurisdiction over me or not ; but the humblest man in the Church may sometimes have to say, as well as its Supreme Head, non possum. ' I have lately submitted my defence to some of the ablest divines in the Irish Church, and I am assured by them that it is irrefragable. For myself personally, I care not how soon or how late authority may decide the question at issue between Dr. M'Donald and me ; but I desire from my heart to see peace restored to my unhappy parishioners, and to live in charity with all mankind. To secure this result imme- diately and perfectly, nothing is required but the removal of the Rev. Messrs. Walsh and Neary from Callan. ' I have the honour to remain, ' Your Eminence's most humble servant, 'R. O'KEEFFE. 'P.S. I hold over this letter till to-morrow, in order that I may send with it a copy of the letter I shall then write to Dr. M'Donald.' Letter from Rev. Robert O'Keeffe to Dr. M'Donald, referred to in postscript of foregoing Letter. ' Callan, October 5th, '71. ' MY DEAR DOCTOR, The Rev. Messrs. Walsh and Neary have, in 182 Court of Queen's Bench (Ireland). Direct ex- connection with the publication of opposition stations, resumed their amination denunciations of me in the Kells and Friary Chapels ; and they allege, B eVi for their conduct, directions from the bishop. I could not believe Kobert that the governing authority in the diocese would authorize this pro- ceeding, only that I find that a marriage was celebrated in the Friary Chapel on Tuesday, after one publication of banns. Under these Father circumstances I have had a new summons taken out for Father Neary's assault on my bailiff; but he has evaded service, and I have been unable to bring him up before the court on this day. ' The Newtown stations are ended, and out of seventy householders only six have come in to the opposition stations. The Coolagh people, with two or three exceptions, will all attend my stations ; and, with the exception of some thirty families, all the townspeople will come to me. On every Sunday and holiday I address at. both the masses certainly 4,000 people. Will you, then, ask yourself cui bono the rival altar and confessional ? If you had denounced me, I could understand your having a conscientious feeling that my people should be kept from me ; but so far from denouncing me, the greatest difficulty I had in making up my case against you for the Wicklow Assizes was to prove that you had not kept the censures you wrote on me a profound secret. Can you be so ignorant as not to know that my parishioners commit a sin by refusing to receive holy things from me, on pretence of a censure not canonically denounced, or is it possible that you have never read the bull of Martin V. in this matter ? ' You have been these two years violating my rights in many parti- culars. During all this time you have given permission, without any reference to me, to the Rev. Messrs. Walsh and Neary to leave this parish as often and as long as they liked, in open violation of the statutes of the diocese. In open opposition to the General Council of Lateran, you have led people to think that they are not bound to receive Paschal Communion from their own priest; and, in open violation of the Council of Trent, you have authorized clandestine marriages. Any well-read theologian can inform you that you have just the same right to do these things as to collect the dues of my parish. You cannot reasonably blame me, therefore, for doing what- ever is necessary for my own protection, and seeking it in a lay court if I cannot get it in an ecclesiastical one. 'In God's name, provide a mission somewhere else for the priests who are out of place here, and do not continue to give pain to Cardinal Cullen, Pius IX., and all good Catholics. If I must again declare war, it will be in the spirit of the words of Cicero (De Officiis), " Quare suscipienda quidem bella sunt ob earn causam ut sine injuria in pace vivatur." 'The number of cases at sessions, to-day exceeded fifty, and there Rev. Robert O'Keeffe v. Cardinal Cullen. 183 would have been many more only that the magistrates have declined to Direct ex- take fines from persona convicted of " religious quarrels " amination i I remain, my dear Doctor, yours faithfully, Rev. 'R. O'KEEFFE.' Had any of the previous suspensions been announced? Not canonically. What is the canonical form of publishing them after sen- As to pub- tence is properly passed upon a clergyman : a sentence of censure*. suspension as the result of trial and investigation? He is suspended by the judge. His people should not withdraw from him even after that is done until the judge announces to them, either himself personally, or by authority from him in writing, that that sentence has been pronounced upon him, and that for the future they shall withdraw from his minis- trations. Now did you get any further communications from the Cardinal, or any answer to the letter to Dr. M'Donald until you got this letter of the 21st October? I believe not, sir. (The following letter from the Cardinal was then read) : ' Dublin, 21st October, 1871. ' MY DEAR FATHER O'KEEFFE, As it is necessary to settle the affairs Cardinal of Callan, I have determined to send you a regular ecclesiastical Cullen to Father citation to appear before me on Friday, 27th October, at eleven o'clock, o'Keeffe a.m., at my house in Eccles Street. I will send the citation to you on Monday next, but I now mention the day so that you may let me know if it be inconvenient before Monday afternoon. 'I will examine whether you have incurred suspension or excommuni- cation, either ab homine or a lege or canone, whether you have incurred irregularity, and whether any or what penalty is to be inflicted on you for having neglected those censures or ecclesiastical penalties, if you have done so. ' Other matters connected with the unhappy state of Callan so well described in your letters must also be examined. ' Wishing you every happiness, I remain your faithful servant, + < PAUL CARD. CULLEN.' (The following letter from Father O'Keeffe to the Cardinal, in which he stated the grounds upon Avhich he disputed the legality of his suspension, was then put in) : 184 Court of Queen's Bench (Ireland}. Direct ex- ' Callan, October 22nd, '71. "of the* 11 ' ^ Y -k RE> CARDINAL, I shall be happy to present myself before Kev. your Eminence on Friday ; and, to save your Eminence's valuable time as far as I can, I send you my defence, that you may submit it to some of the eminent divines by whom you are so numerously sur- rounded in Dublin. O'Keeffe to ' I have the honour to remain, your Eminence's most humble servant, Cardinal , R O'KEEFFE.' Cullen, legality ' ^ n nme distinct grounds I maintain that the censures passed upon of his sus- me were of no force or validity whatever. I maintain that any one of pension. these nine objections, if established, disproves the validity of the censures; and I undertake to establish every one of them beyond possibility of contradiction. ' I. The constitution Apostolicce Sedis has not been received in this country any more than the bull In Ccena Domini. The Bulla Ccence was never received in France and some other countries of Europe ; and we have the testimony of our ablest Irish divines that it was never received in this country. Our most distinguished prelates and other theologians stated this before Royal and Parliamentary Commissions. When the great Dr. Doyle was asked before a Parliamentary Committee on the 16th of March, 1825, "Whether the Catholic clergy insist that all bulls are entitled to obedience," his answer was " By no means ; the Pope we consider as the executive authority in the Catholic Church, and when he issues a bull enforcing a discipline already settled by a General Council, such bull is entitled to respect ; but he may issue bulls which would regard local discipline, and other matters not already defined, and in these cases the bull would be treated by us in such manner as might seem good to us. Did we find that it was unreasonable, we would refuse to accept it." The other divines that were examined gave similar testimony ; and no Irish divine, that I am aware of, ever publicly maintained that the Bulla Ccence was ever received in this country. Surely all these distinguished men would on the same principles hold the same opinion regarding the binding force in this country of the new constitution, Apostolicce Sedis. 1 II. Assuming for argument sake that the Apostolicce Sedis was in force here, Dr. M'Donald had no right to take cognizance of its viola- tion unless deputed to do so ; and he has never shown me any such authority to act. ' III. My proceeding against the bishop was not in any way intended or calculated to impede him^ in the exercise of his jurisdiction ; but simply to enforce a money compensation for an injury done me. ' IV. The documents of Oct. 70 handed me were not official. There was nothing to show me that they even came at all from Dr. M'Donald, except the knowledge I had of his handwriting. What would be Rev. Robert O'Keeffe v. Cardinal Cullen. 185 Rev. Robert thought of a civil judge who, on satisfying his own mind that some one Direct ex- had committed an offence punishable by a fine of 100Z., would imme- a n ^ n diately write to this person requiring him to pay the fine ? ' V. The proceeding against me did not commence with a citation to a trial, a preliminary which all canonists look upon as essentially necessary to every judicial proceeding. ' VI. There was no trial or any offence proved. ' VII. There was no denunciation of me in any canonical form ; although nothing is plainer than the words of the bull of Martin V. in the Council of Constance, forbidding my people to withdraw themselves from me or to decline my ministrations in the absence of a formal denunciation by the judge who had passed the sentence of censure, or some one acting with authority from him. ' VIII. The trial in the lay court only took place after a hearing in the ecclesiastical court was refused. ' IX. The superior was a judge in his own cause ; the suspension was issued by Dr. M'Donald because I had taken an action at law against Dr. Walsh. ' X. I add, on the suggestion of a learned canonist, that Liguori would consider probable the opinion of Eoncaglia that the bull Apos- tolicce Sedis would require publication in this country. See Liguori, De Legibus, lib. i. tract, ii. No. 96. 'EGBERT O'KEEFFE, P.P.' Where did you get the quotation from Dr. Doyle ? From a Parliamentary paper. You say he (the Cardinal) had no authority to act. Is that the case ? Yes. He had shown you no authority? He had not. You say in the paper I have just read that you had the suggestion of a great canonist on the subject ; to whom did you refer ? I referred to the late Dr. O'Hanlon, Maynooth. He is since dead ? He is since dead. Was it true that on his suggestion you added that ? 1 It was true. Now did you go to Dublin on the day fixed, the 27th October ? Yes, I went up on that day. (Counsel read the Cardinal's letter requesting an inter- view) : 'Dublin, 25th October, 1871. ' MY DEAR FATHER O'KEEFFE, As you have showed such willing- Cardinal ness to come up on Friday next, I have not considered it necessary to Cullen to J ' Father 1 See Appendix, No. 3. O'Keeffe. 186 Court of Queen's Bench (Ireland}. Direct ex- amination of the Kev. Robert O'Keeffe. Interview with the Cardinal. send you a formal document. I will, however, expect you on Friday next at 11 o'clock, a.m., at 59, Eccles Street. ' I hope God will direct us in the whole case. ' Your faithful servant, + ' PAUL CARD. CULLEN: You went to Eccles Street? I went to Eccles Street. At the hour appointed ? -Yes. Were you shown into the Cardinal's presence ? The Lord Chief Justice : Up to this day had you any notice of any commission or authority from Rome, or the nature of it, given to the Cardinal ? None whatever. Had you received it in any shape or form ? I never sus- pected any such authority was given. I had received no such intimation. I know this much in connection with the election which took place on the 19th September, that the Cardinal was appointed in Kome to conduct the election, and I know as a consequence when he undertook the duty of con- ducting the election, it was his further duty to enquire into the validity of the censure passed upon me. Was that in reference to your vote ? In reference to the vote ; and that he was not justified in rejecting my vote with- out enquiring into the circumstances under which the sus- pension was issued. It was in fact condemning me without a trial. I had given him ten days' notice. On the 27th October you went to Eccles Street? Yes. Were you shown into the Cardinal's presence ? I was shown into a room where the Cardinal was present with Canon Forde, now deceased. The Lord Chief Justice : At ten in the morning ? I think about eleven. Mr. Fitzgibbon : Tell slowly what passed, and who were present there? Cardinal Cullen and another ecclesiastic; the Cardinal introduced him to me as Dr. Forde. You had not known him before that? I had not known him previously. When he had introduced you to Canon Forde he told you to be seated? I took a chair at the table, and the Cardinal sat opposite to me, and Canon Forde sat between us. The Lord Chief Justice : I think it better to let this gentle- man state what was said and done without putting questions. Rev. Robert O'Jteeffe v. Cardinal Cullen. 187 Serjeant Armstrong : That is scarcely possible, as it has lasted five or six hours. The Lord Chief Justice : As well as he can. (To witness) : How long were you there ? I was there till two o'clock from eleven. Mr. Fitzgibbon : You say you took your .places at the table as described. What was the next thing done? The Cardinal produced a bundle of papers and began to read the censures that were passed on me by Dr. M'Donald. I explained to him, taking them all in order, that these cen- sures had no validity whatever in them. I explained the ground on which they were invalid. Would you state here, not in that general way, but as well as you recollect, what the grounds were as you gave them ? The Lord Chief Justice : Had you previously sent up that paper with the grounds of objection set out ? I had. He had that ? He had. The Cardinal had a copy of it ? He had. Did you state all these over again? I did not go over the nine objections ; when we came to the question of the Apostolicce Sedis I stated to the Cardinal that I never heard any Irish divine maintain that the bull In Coena, or the bull Apostolicce Sedis as a consequence, was in force in Ireland. Was that true ? It was true. I never heard that any divine ever expressed his opinion in public that the bull In Coena had any binding force in Ireland, but I was aware of Cardinal Cullen's opinion in that matter, which was that the bull In Ccena was in force in Ireland. When you came to the Apostolicce Sedis now go on ? They both said, as well as I can recollect, that if I wanted to know if this bull was in force in Ireland, I could write to Rome and get an opinion on the subject. Mr. Fitzgibbon: Was that in reference to the ancient bull In Ccena, or the new constitution ? The new consti- tution. Do you remember whether any answer was made to the statement as to the bull In Coena not being in force ? No, I think there was no reference to the bull In Ccena being in force. Did you refer to it yourself? I think not then, but I Direct ex- amination of the Kev. Kobert O'Keeffe. Bull in Ccena Domini. 188 Court of Queen's Bench (Ireland). Direct ex- amination of the Kev. Robert O'Keeffe. called on Dr. Forde when this was expressed, to answer the nine objections I had made to the validity of the censures. He still persevered in saying that no matter what other divines may have said there was no doubt that the bull Apostolicoe Sedis was in force in Ireland. Do you remember anything further ? I again called on him for an answer emphatically. The Lord Chief Justice : May I ask had this last bull ever been delivered to the bishop of your diocese, or was it ever, by the bishop or by any other person, delivered to you? It was sent to me from Rome. From Rome ? It was sent to me from Rome in answer to an application I made to Cardinal Barnabo. Mr. Fitzgibbon : Was it ever delivered to you by the authorities of your diocese ? No. The Lord Chief Justice : Was this bull that you are now speaking of, this Apostolicce Sedis, was it to your knowledge ever published by the bishop of your diocese ? Never to my knowledge. Was it ever delivered to you by the vicar-general with authority to declare that it was part of the canon law to your people ? No. Did you say that, in a letter that you wrote to Cardinal Barnabo, he in reply enclosed you a copy of it ? Yes, for the purpose, he said, of showing me Mr. Fitzgibbon : Mr. O'Keeffe, you say that you called then for an answer emphatically. What further was said? When I insisted on getting an answer from Canon Forde he said he would take time to consider it, and asked me to leave him the copy that I produced on that occasion. The Lord Chief Justice : The copy that you had got from Cardinal Barnabo? No, my lord. I sent a copy to the Cardinal, and I also brought another copy in my pocket. Mr. Fitzgibbon : You mean a copy of your nine points ? Yes. The Lord Chief Justice : He said he would take time to consider? He would take time to consider, and give an answer. He asked you to leave it with him ? He asked me to leave it with him, that is, the second copy. Rev. Robert O'Keeffe v. Cardinal Cullen. 189 Mr. Fitzgibbon : Do you remember anything more being Direct ex- said about referring it to Koine ? tell what passed after that. a f n *^ n Before there was any mention of referring the matter to Rev. Eome I said to Cardinal Cullen, ' Why don't you prevent ^^ Father Walsh from carrying on law against me ? ' It was after I had taken the action against Father Walsh, I got a verdict from the jury ; he moved on his part to have the verdict set aside, and the case was adjourned from one court to another for two years. ' Oh,' the Cardinal said, ' he is only defending himself.' * Well then,' I said, ' my Lord Cardinal, don't you know that Dr. Walsh took an action against one of the priests ; why didn't you suspend him ? ' ' Oh,' he said, 'he is a bishop; that is a causa mater, and I can't entertain it.' Who did he take the action against ? The late Dr. Walsh took an action at law against the Eev. Robert O'Shea. It was decided in the Eolls Court in 1851. The bishop got a decree against Father O'Shea. Mr. Fitzgibbon : Was anything more said ? * Why, my Lord Cardinal,' said I, ' I think what is sauce for the goose is sauce for the gander.' Well, when we could not come to an understanding or agreement, the Cardinal said, ' Would you have any objection to have the case referred to Eome, and will you agree to the decision that will be given there ? ' The Lord Chief Justice : What did you say ? I said I had no objection to that, and I would agree. I would agree to any decision that would be given at Eome, and I requested him to forward all my papers that I had put in his hands. Then we began to consider what would be done in the mean- time at Callan. Was that agreed to ? That was agreed to. Between you ? Between us. What next? After it was agreed that the case was to be referred to Home, for decision there, we began to consider what would be done in Callan in the meantime, and the Cardinal proposed to have me receive missionaries at Callan, pending the decision of the question in Eome. He said he would remove Father Walsh and Father Neary, and that he would send me any priest of the diocese that I might name, as curate, to answer sick calls during a mission. He said to Dr. Forde then, * I am afraid, Doctor, we can't get mission- Court of Queen's Bench (Ireland). Direct ex- amination of the Rev. Robert O'Keeffe. aries on so short a notice.' Dr. Forde said, ' Certainly we can. Any missionaries we apply to in Dublin will accommo- date your Eminence.' Well, they asked me then if I would put in writing the arrangement we had come to. I said I would, and I was handed a pen by Dr. Forde, and a leaf of paper. Are you sure, sir, that you have stated accurately every- thing that passed in relation to this part of the business ? Well, I can't say that I stated it accurately, but I have given the substance. You said you would, and you were handed a pen. What next ? I took the pen in my hand to write, and immediately a thought occurred to me that it would be safer for me Serjeant Armstrong: Don't mind your thoughts. (Wit- ness) : I said to the Cardinal, ' Perhaps it is better that I would wait till I go to the hotel to write the agreement come to, and I can bring it up in the morning.' Mr. Fitzgibbon : Was there anything said at this time to you how you were to look on the agreement ? Yes, the ob- ject of writing the agreement was : State what was said. What was said was that I might write the agreement come to in order to read it to my con- gregation on the following Sunday. A Juror : Up to this date you were acknowledged by the Cardinal as a parish priest ? I suppose so ; he always ad- dressed me as parish priest when writing to me. Although suspended ? He always put P. P. on the letters that he sent to me up to that. The Lord Chief Justice : This was that you might read it to the congregation ? That I might read to the congrega- tion the arrangement agreed on between us. What day of the week was this ? It was Friday the 27th of October. Mr. Fitzgibbon : Do you remember who it was that used the words about reading it to your congregation ? They both seemed to be of one mind in every particular. I would say both of them agreed at any rate in the arrangement, and they approved of my waiting till I got at the hotel to make the memorandum, and the Cardinal said that I was to bring it up at twelve o'clock next day, Saturday. I said that hour would not suit me, as I was to go home by the mail day Rev. Robert O'Keeffe v. Cardinal Cullen. 191 train leaving at half-past twelve, and then the Cardinal asked Direct ex- Canon Forde, could he be in at ten o'clock next morning, and *' n the n Canon Forde said he could without inconvenience, and ten Rev. o'clock was appointed for me to return with the paper that I o'Keeffe. was to write at. the hotel. The Lord Chief Justice : Did you part then ? I left and went to the hotel. Did you part good friends ? Oh, the best of friends ; we shook hands, and parted on the most friendly terms. Mr. Fitzgibbon : During the time that you were there that day, do you remember anything being said of the authority under which Cardinal Cullen was acting? No; there was nothing said about it. When you were leaving was there anything about ad- journing the enquiry to a future day ? Oh, there was nothing except the arrangement to call in the morning with the paper at ten o'clock. We agreed to have the matter carried to Kome. The Lord Chief Justice : That was the finale ? That was the finale. Mr. Fitzgibbon : Take that paper in your hand. Did you write the paper there agreed upon when you went back to the hotel ? When I went back to the hotel I wrote this paper. Did you write two copies ? Yes. Were the two the same ? The two were the same. Did you return on the following morning to Eccles Street ? I returned on the following morning with this paper at ten o'clock, having kept a copy for my own use to read to the people. Were you again shown into the presence of his Emi- nence '? Yes, I was shown up stairs into the same room. Was he by himself on that occasion ? He was by him- self on this occasion. When you entered the room, what did you say ? I said, 'I have brought the paper with me.' I put it into his hands, and he looked at it. Did he read it ? Yes. (Counsel read the following document) : 192 Court of Queen's Bench (Ireland} . Direct ex- amination of the Rev. Robert O'Keefie. Father O'Keeffe's statement of arrange- ment made at inter- view with Cardinal to be read to congre- gation. Copy of Paper left with Cardinal Cullen, by the Rev. Robert O'Kee/e, on October 28, 1871. ' MY GOOD PEOPLE, As I informed you on last Sunday I would do it, I have presented myself before his Eminence Cardinal Cullen, who has thought fit to refer to the Holy See the whole case of this parish. Pending a decision of the case in Rome, I have agreed to the proposal of his Eminence to put the parish into the hands of missionary priests whom he will send from Dublin to preach to the faithful the charity of Christ and the truths of the Gospel. His Eminence hopes that this holy mission will put an end to all dissension and uncharitableness in the parish. 1 E. O'KEEFFE. 'October 27, 1871.' The Lord Chief Justice : Is that a true statement of the arrangement you had come to ? That is a true statement of the arrangement we had come to. Mr. Fitzgibbon : When you put it before his Eminence he read it ? He read it. What did he say ? ' Oh,' he said, ' this would not do at all. You have put nothing into this paper about your leaving the parish as well as the curates.' Had anything been said on the day before about your leaving the parish ? No, nothing whatever, except they said would I have any objection to make a retreat. I said, * Of course not.' When he said that, what did you reply ? I said, ' What is the meaning of that, my Lord Cardinal? Who would be there to look after the missionaries, or look after the affairs of the parish ? ' He said, ' Oh, we will take care of that.' I just put my hand to my hat, I took my stick in my hand, and I said ' Good morning to you, my Lord Cardinal,' and walked away. Except the reference to the missionaries and to your going into retreat, was that the first time you had been asked about leaving the parish yourself? Oh yes ; I never dreamed of such a thing. Had it been spoken of before ? Oh no. You say he had spoken to you about removing the curates? Yes. You took that copy of the paper away with you and kept it yourself? Yes, I left the other. Rev. Robert O'Keeffe v. Cardinal Cullen. 19JJ What did you do with the copy you took with you ? I Direct ex- read it to the people on the following Sunday, and explained a 1 f n ^ 1 e n how the Cardinal had broken word with me, and that the Rev. matter was still unsettled. o'Keeffe Was that according to your recollection all, or the sub- stance of all, that passed on those two occasions, between yourself and the Cardinal? That was all. There was a great deal of time lost reading papers, and making observa- tions on them, and so on. (Counsel then read the following letter) : 'Dublin, Nov. 3rd, 1871. ' MY DEAR FATHER O'KEEFFE, As we were not able to finish your Cardinal case on Friday last, 27th October, or on the following morning, I Cullen to request that you will come up on Wednesday next, 8th November, to T^r 16 ^ conclude the business which we commenced. We can meet at 11 o'clock, at 59, Eccles Street, as on the two former occasions. ' I cannot delay the settlement of this affair any longer, as I must give an account of my stewardship to the Holy See, whose representative I am in the case. ' In my former letter, dated the 21st October last, I indicated the heads of the matters which I am called on to decide. ' Wishing you every happiness, I remain your faithful servant, + ' PAUL CARD. CULLEN.' You received this letter ? Yes. Counsel then read the following letter from the plaintiff to the Cardinal : 'Callaii, Nov. 5th, 1871. ' MY LORD CARDINAL, I have the honour to acknowledge the -p t ij receipt of your Eminence's favour of the 3rd inst. O'Keeffe to ' It had been rumoured here on the Saturday that I was in Dublin Cardinal that your Eminence had been able to adopt measures for the restora- tion of peace ; and the consequence was, I was met outside Callan by several thousands of people with banners and music, in such a state of joyous excitement that I was more than an hour on the last mile of the road.' Did that occur ? Yes, it occurred. (Counsel continued reading) : ' Thanks to Almighty God, no injury was done to anybody ; but all my influence over the crowds that surrounded me would not have been able to prevent calamitous occurrences if the police authorities had not adopted the precaution of bringing into Callan all the men of the O 194 Court of Queen's Bench (Ireland). Direct ex- surrounding stations. In this state of things, your Eminence would am ' n ation not wish me to make you another visit. I have, besides, placed in Rev. your Eminence's hands my whole defence, and I call upon you to Kobert decide, as having authority to do so, that I have never incurred any ecclesiastical censure. I am willing to let the whole case be laid before the professors of canon law and theology at Maynooth ; and if these learned men say that I have incurred any censure, I will make the most humble apology for having, even unwittingly, violated in any way ecclesiastical discipline. 1 pride myself on my loyalty to Church and State, and it has given me the greatest pain to be considered dis- respectful to lawful authority. ' The scandals that have turned up in the trials in which I have been engaged are attributable to others, and not to me. Some of them I knew nothing about, such as, for instance, the skulking in the house of God, and none of them were made public by any voluntary act of mine.' Was that in reference to the Kev. Mr. Walsh taking notes of your address ? Yes. (Counsel continued) : ' After I left your Eminence on yesterday week I called on my solicitor to inform him of our disagreement, and to instruct him to renew the lawsuit against Dr. Walsh ; but he informed me I was late for the after sittings of this term, and also that I must wait for the Wicklow Assizes to proceed against Dr. M'Donald. I arranged with him, however, for the defence of the verdict had against Father Walsh, in the new trial motion which is set down for argument at the present term. I also directed him to give notice of trial in my case against Mr. Cody, a poor-law guardian, against whom I have commenced an action for slander in the workhouse. ' Father Neary appeared before the petty sessions bench here on Thursday ; but when the case was called in court, he begged a post- ponement for a month, and was given it, with the consent of the com- plainant, Mr. Patrick O'Brien, civil bill officer.' Who is Mr. Patrick O'Brien ? A civil bill officer. What was the case about ? When the man went to serve the writ on Father Walsh he was met by Father Neary, who assaulted him. He was convicted. Father Neary was con- victed in court. (Counsel reads remainder of letter) : ' The justices sat till 7 o'clock, and were still obliged to postpone a great number of cases, which they promised to hear at a special sessions on Friday next. They again announced their determination not to Rev. Robert O'Keejfe v. Cardinal Cullen. 195 accept fines in cases of collisions between the Schismatics and " Red Direct ex- Lights," so that Father Neary runs a very serious risk of 48 hours' animation confinement in the common bridewell. Now, my Lord Cardinal, all R ev these lawsuits and contentions, and all the scandals and numberless Robert other evils that have occui'red and may happen hereafter, are attribut- able to no other cause whatever but the one, and that is that two priests have been forced upon me as curates who were proved to the satisfac- tion of a judge and jury to have untruly denounced me to four con- gregations of my own flock as a liar on the altar, more than two years ago. ' I spent the whole of Thursday in the court-house waiting for judg- ment in my case against the opposition school-mistress, who continues to go every day from my N. School to the one in the curate's house. The justices had given me a decree for possession, but the teacher appealed to Quarter Sessions, whence the case was sent back to the justices, who granted me again a decree for possession. ' I was again horrified at witnessing an amount of perjury which Mr. Hort, the resident magistrate, more than once declared that in all his experience he had never seen equalled. The disregard for the sanctity of an oath at Callan he said was fearful. This Protestant gentleman's surprise at what he had witnessed would not be so great if he knew how much habituated these unfortunate people were to the perjuries of the priests who assume to be their exclusive guides, uttered not only in law courts, but in the sacred tribunal of penance, and, " horresco referens," even on the altar of God, with the holy Sacrament itself held up to public view. ' I have the honour to remain, your Eminence's most humble servant, 1 K. O'KEEFFE.' Who were the schismatics? The schismatics were the people who had separated themselves from me in the parish of Callan. And who were the ' red lights ' ? The red lights are the people who had adhered to me. Now, sir, was that which you wrote the true result of what you had observed yourself? Certainly. (Counsel read the following letters) : ' Dublin, 6th November, 1871. ' MY DEAR FATHER O'KEEFFE, I have received your letter of Cardinal yesterday, 5th November, and regret that you have declined coming Cullen to up on Wednesday next, 8th November, as I requested of you to do. o*Keeffe ' As the case in which we are engaged must be settled, I now require of you to present yourself here, at 59, Eccles Street, on Monday next, o 2 196 Court of Queen's Bcncli (Ireland^. Direct ex- amination of the Kev. Robert O'Keeffe. Father O'Keeffe to Cardinal Cullen. 13th November, at (one o'clock) 1 o'clock, p.m., to hear the final judgment which, as a delegate of the Holy See, I shall pronounce in your case, on which you were so fully heard on the 27th of October past and the following day. ' The disturbed state of Callan which you so fully describe in your letter of yesterday, requires an immediate remedy. lam most desirous to restore peace to the inhabitants of that parish, and it is my convic- tion that so desirable a result cannot be obtained until a final decision shall be come to in reference to the ecclesiastical questions which are the source of the evils that afflict the locality. ' I will act with the authority of the successor of St. Peter, which hns been delegated to me, and I trust that whatever decision I come to will contribute to the peace of your conscience, and to the re-establishment of ecclesiastical discipline and spiritual obedience in that portion of the fold of Christ which has been so afflicted and agitated for many months. ' Your faithful servant, + < PAUL CARD. CULLEN.' 'Callan, November llt.h, 1871. ' MY LORD CARDINAL, I profess the highest respect for your person and holy office, and most sincerely express my willingness to do any- thing that I can at the desire of your Eminence ; but there are many things which I cannot do, and one of these is to admit that I have been leading my people astray for the last twelve months. I have taught them over and over again the canon law of the Church, as applicable to the case of my alleged suspension. In a letter to the Poor Law Com- missioners, and in connection with the trial of O'Keeffe v. Neary, I published the same teaching to the wide world, and in the court of justice I pledged my oath to its truth. I have submitted my case to some of the ablest divines in the Irish Church, and I am assured by them that my proofs are irrefragable. I have put these proofs into the hands of your Eminence and Dr. Forde, and there has been no attempt to reply to them. If, after all this, I submitted to a judgment pro- nouncing me suspended from my sacred office, I would give most con- vincing evidence to the whole world that I was what my unholy slanderers pronounced me to be, on the altar itself, a priest non Dei sed diftboli. ' When the clergymen that were my curates withdrew themselves entirely from my control on the 4th of March last, and set up the opposition altar and confessional in the Friary Chapel, they informed the public that they had the sanction, not only of the Ordinnry of the diocese, but of Cardinal Cullen himself, for all their proceedings ; and it was by the use of your Eminence's name that they were able to draw a section of my parishioners into schism. I have ever since laboured Rev. Robert O'Keeffe v. Cardinal Cullen. 197 under the great disadvantage of a struggle believed by many to be with Direct ex- a party under the direction of the highest ecclesiastic in the realm ; ' '"^"j^ 01 and yet thanks to truth and justice I have been able to bind my R ev . people to their P.P. in bonds of such strong aifection that nothing but ^l be ~ the hand of death can sever them. Of course I know not whether your Eminence was really pitted against me or not in this protracted encounter ; but my solicitor has lately informed me that your Eminence was prepared to go into the witness chair against me at Wicklow, and that a subpccna from the court was actually issued for service upon you. He has further informed me that he has the best authority for stating that the censures were all made out under your advice and direction. In the light of these facts anybody can see how little weight the formalities of a court can add to the foregone con- clusion, and how childish it would be of me to go into that court, where I would meet openly, for the first time, the opponent on the Bench, that 1 have been unconsciously contending against, with great success, for more than eight months. ' My unscrupulous clerical defamers here have been for months assuring the faction which they head that, if they must leave this parish, Card. Cullen is pledged to them to send away the P.P. along with them ; and they openly boast of having thus attained all they aimed at my humiliation ; but my strength is in the justice of my quarrel before God and man. May the Almighty defend the right. Thrice is he armed that hath his quarrel just ; And he but naked, though locked up in steel, Whose conscience with injustice is corrupted. ' I have the honour to remain, my Lord Cardinal, ' Your most humble servant, R i ev ' ' Robert ' To the Reverend Father Robert O'Keeffe, Priest of the Diocese of ' Keeffe - Ossory, Parish Priest of the town called Callan, Paul Cardinal Sentence of Cullen, Archbishop of Dublin, Primate of Ireland, Delegate of the suspension Apostolic See, greeting : Cardfnaf ' Whereas our Most Holy Father Pope Pius IX., who has the care Cullen. and burden of all ecclesiastical matters, has deemed fit to bestow on us the necessary and suitable faculties that we might be able to inquire into and express an opinion concerning the complaints and accusations which are brought against you; therefore, relying on the authority conferred upon us, we have not omitted diligently to examine your case. Since we have carefully weighed all things which you have acknowledged in writing in several letters given to us, and which were known elsewhere by public report, and afterwards heard you yourself freely urging all the arguments which could be adduced for the defence of your case on the 27th day of October last past, at our house, in the presence of the Reverend Father Laurence Forde, one of our Vicars- General, and again briefly recapitulating the same on the following day, the 28th of October. We have also received from you your defences and the answers sent to us in writing, which you thought should be given to your accusers, and we understand their import. ' In this state of things we summoned you to appear before us on the 8th day of November, that we might bring to an end your case, which we have in hand, and might declare our judgment on it; but you refused to lend an ear to our voice. Afterwards we fixed another day for you, namely, the 13th of this same November, that you might meet us, to hear our decision, and that your case might be dismissed for the future ; but again, although it was very well known to you that we were acting under the Apostolic authority of the Holy Pontiff Pius IX., you refused to obey. ' But now, since you have refused to obey these citations, and have signified to us by letter that you have made up your mind not to come to us, and that you are no longer willing to stand in our presence, this only remains, for us to pass our judgment on you in your absence, and in contempt, in order that ecclesiastical discipline may not be set at nought with impunity. ' Wherefore, having offered prayers to God, and having invoked the aid of the Most Holy Trinity, taking account of all things which we have heard from you in person, or have read in letters from you ; moreover, having weighed the arguments which you submitted to us in your defence ; in the name of the Father, Son, and Holy Ghost, by 1 For Latin copy of Suspension, see Appendix, No. IV., p. 582. 200 Court of Queen's Bench (Ireland). animation of the Kev. Robert O'Keeffe. Direct ex- the authority conferred on us by the successor of St. Peter, we suspend, and declare suspended, you, Eobert O'Keeffe, Parish Priest of the town named Callan, from all spiritual jurisdiction, from the administration of sacraments, and especially from hearing confessions, from celebrating the most holy Sacrifice of the Mass, from preaching the word of God, and from every ecclesiastical office, until you come to your senses and make full satisfaction, in our opinion, to the Church. Moreover, by the tenor of this decree, by the same authority we deprive you, and declare you deprived, of all benefit ecclesiastical or conferred on you by the Church, and of all dignity or rank conferred on you in the same way. ' But wishing to care for the safety of your soul, which is exposed to so many dangers, we earnestly ask God mercifully to bring you to good results ; and by the bowels of compassion of our Lord Jesus Christ, who for us men and for our salvation suffered death on the cross, we implore and beseech you, having laid aside the old man, according to your former conversation, to put on the new man, which after God is created in righteousness and true holiness. ' Dated at Dublin, the 13th day of November, 1871. + 'PAUL CARD. CULLEN, ' Archbishop Dub., Primate of Ireland, Delegate of the Apostolic See.' Where did you get it ? I got it from a boy named John Cooke. Was he one of your parishioners? He was at that time. He is in Dublin at present. Where is he in Dublin? In the Meath Hospital; he met with an accident. He gave you a copy of this ? He gave me a copy of that. Did you see any copy of this posted anywhere before Cooke gave it to you ? No, I did not. Was the one Cooke gave you the first copy you saw ? Well, I had seen one before. Where ? I will tell you how it happened. The Saturday before the paper was posted up at the Friary Chapel, a man came to me and he said Don't mind what he said. I am asked now, did I ever see a copy of that before it was posted on the Friary Chapel. 1 did. I want to explain where I saw it, how it came into Rev. Robert O'Keeffe v. Cardinal Cullen. 201 my hands. On the Saturday, that is, the 25th November, a Direct ex- man came to the door and said he had a letter for me. 'TfThfT You cannot mention what he said. Did he hand you a Rev. copy of that ? I went out to him and he proposed to hand o'Keeffe. me a letter. ' Who gave you this letter/ said I, ' to hand me ?' Father Neary,' said he. ' Well, tell Father Neary that I don't want his letters/ I said ; * take back the letter to Father Neary.' ' I won't take it back,' said he. ' I don't care whether you do or not,' I said ; ' I will throw it away.' T flung it on the ground. The man went away, and the paper remained on the ground opposite my house. Was it a copy of this ? I allowed it to remain there for a considerable time ; after an hour or two, when I found that nobody was taking it, I picked up the letter at any rate, opened it to see what it was all about, and found a copy of this document. Did you know in whose handwriting it was addressed ? No ; I did not mind the envelope. Mr. O'Keeffe, in reference to this document which I have p roc eed- read, signed by the Cardinal, I have to ask you some questions. iu g s Assuming for a moment that the Cardinal had authority, to make what according to the regulations binding on you is the sen .tence course of proceeding that should be adopted in reference to the sentence of suspension ? First of all the person under- taking to sit in judgment on me should show his competency to act as judge. That is the first thing to be done. Was any document, or copy of any document, purporting to give authority shown to you at any time before this con- ference, or before the action ? Certainly not. The eccle- Denial of siastic who undertook to issue that sentence was. not a com- cardinal petent judge to sit in judgment on me ; he had no juris- jurisdic- diction over me. tlon - That is, in his own person he had none ? He had none. I am not bound to acknowledge him; he is not my superior at all. The Lord Chief Justice : How is that ? Because I belong to the district of Ossory, and the Archbishop of Dublin has no ordinary jurisdiction over the priests of the diocese of Ossory. Then any jurisdiction he had was by authority of this document ? Yes, if he had any. 202 Court of Queen's Bench (Ireland). Direct ex- amination of the Kev. llobert O'Keeffe. Authority should have been shown. Accuser not to be judge. Procedure in such a case. Mr, Fitzgibbon : Where there is no ordinary jurisdiction, but where an extraordinary jurisdiction is claimed, what course of proceeding must be taken to make it known ? The person who proceeds to act under an extraordinary jurisdic- tion should intimate to the party concerned that he had received that extraordinary authority, and that he was made competent to sit in judgment on that party. That is the first thing to be shown, the competency of the judge. Serjeant Armstrong : My objection extends to all this class of evidence. Have you made this matter of the canon law of your Church a subject of special study ? I have, of long and tedious study. For how many years have you made it your study ? I have made it my study for the last forty years. Have you read the authorities recognized in your Church as authorities on the subject ? I have been reading them these forty years. My studies are chiefly confined to theology and canon law. I seldom read what is called light litera- ture at all. In what you have been telling us have you given the knowledge you have acquired in that way ? I have. Are you prepared to give us the authorities if required ? I am quite prepared. Are you able to say that you know the canon law of your Church? I consider I do. Assuming extraordinary powers to be given to an eccle- siastic in the position of the Cardinal in your case, was the Cardinal in a position by the laws of your Church to pronounce this decision ; was he personally competent as a judge ? He was not. In what respect? He was not a proper person to be appointed judge in my case. In what respect ? Because he was my accuser. Where extraordinary powers are granted to a person in the position of an accuser, is there, according to the law of your Church, a course of procedure to be taken by the accused ? Certainly. What is that ? To put in an objection, to take excep- tion to his appointment as judge. That is the privilege of the party charged. Rev. Robert O'Keejfe v. Cardinal Cullen. 203 The Lord Chief Justice : Was any notification sent to you Direct ex- from Rome that you would be tried under a special jurisdic- a f n ^e U tion granted to any gentleman ? None whatever, from Rome Rev. or from any other quarter. O'Keeffe. Was any authority, or alleged authority, at any time produced to you before the sentence ? Certainly not. The Lord Chief Justice : Or read for you ? Nor read for rae ; I never heard of it. Mr. Fitzgibbon: Did you know anything of it except what appears in the correspondence ? Nothing whatever ; I never knew there was any complaint made of me at all. I was charged with misconduct, and never heard of it until all was over, till three months after the service of the writ. Which writ ? The writ on his Eminence. Is there a regular course of procedure in reference to contumacious persons ? Contumacious ? Yes. You cannot be contumacious under such circum- stances if you do not get a summons or citation. After the competency of the judge is established, it is necessary he should serve a citation on the party accused. The Lord Chief Justice : Did you ever get a citation ? I never got a citation, my lord. T got a citation from Dr. No cita- M'Donald, but in this case I never got any citation. * C3. Mr. Fitzgibbon : Where a citation is served, what evi- dence of authority ought it to be accompanied by? The citation should state the competency of the judge, assuming that he is not an ordinary judge. Where he is acting under extraordinary powers as a judge? Under extraordinary powers. It should be fully set Authority forth. The commission under which he acts should be fully f^teli be set forth. The Lord Chief Justice : And the offence ? Oh ! the offence of course in all cases. In all cases the offence and offence should be specified. specified. Mr. Fitzgibbon : Take that [handing witness the suspen- sion] in your hand. What offence, if any, is there in that ? I do not know. The Lord Chief Justice: What are you reading? It is the suspension, my lord. Serjeant Armstrong : I would like to know, have you any particular experience of such matters. Did you ever know 204 Court of Queen's Bench (Ireland). Direct ex- amination of the Rev. Robert O'Keeffe. Sentence should be result of a trial. No charge made in this case. a case of a citation issued by an extraordinary authority, and all these forms observed ; have you ever seen it in prac- tice ? In practice, no. Mr. Fitzgibbon : Is any statement of the offence required in proceedings of this kind ? Yes ; the summons or citation should state the offence with which the party is charged, and call upon him to appear and answer the charge. Where sentence is passed a formal sentence pronounced ought it to contain a reference to the offence ? It should be the result of an investigation or trial. A sentence could not be pronounced except as the result of a trial. The first step to be taken in connection with the trial is, to serve the party with a citation, assuming the competency of the judge to be established. When the party appears, he should be met by his accusers, and he should get the heads of the charges made against him. These charges should be made in his presence, and in the presence of the judge, and the crime charged should be at least what we call in the Catholic church a mortal sin ; not a slight offence, but a very grave offence. The Lord Chief Justice : You mean an offence to warrant such a judgment ? Yes, my lord. It would not do, in one word, to prove a slight offence. A very grave offence should be established, such for instance, I will say, as public drunk- enness. Mr. Fitzgibbon : Have you ever been informed by Cardinal Cullen or anybody else of any charge having been made against you by any particular person ? Never. You told us yesterday no evidence was taken before the Cardinal. Was any accusation made or mentioned to you ? Certainly not, I never dreamed there was any charge made against me at all. The Lord Chief Justice : What were you doing there ? I went there to get his Eminence to declare that the sentence was bad, and I say in this court that it was his duty to in- vestigate the matter, because when the election took place he intimated to me that I should have an answer as to whether the sentence pronounced on me by the bishop and Dr. M'Donald was valid or not. I told him ten days before the election that I was prepared to show him that they were not valid. I say it was the Cardinal's duty before he pro- Rev. Robert O'Keeffe v. Cardinal Cullen. 205 ceeded to the election to decide on the validity of those cen- Direct ex- sures, in order that I might have had the benefit of my vote. llB ^ n ^ 1 He refused my vote at the election, saying that I was primd Rev. facie suspended, and that he would go into the matter at o'Keeffe. another time, and I say that was condemning me without a hearing in a matter where he was competent to act. Ha was competent to do so by the commission that he had to conduct the election. Mr. Fitzgibbon: Supposing all to have been regularly done after the citation, what is the regular and proper form of pronouncing judgment ? There is no specific form, but the judge declares the offence proved, and he either excom- municates or he suspends, to this, that, or the other extent. He may suspend to the extent of depriving me of the living. Where judgment is pronounced in that way, should the judgment show the offence? The judgment should show the offence. Answer this question, yes or no. Did you know till after the present action was commenced of that supension being accompanied by any letter to the clergy in the neighbour- hood ? I did not know of any letter. You did not know of any letter being sent ? No. (The following letter is the one here referred to) : Letter from Cardinal Cullen to the Parochial Clergy of Callan, enclosed with Suspension. , '23 November, 1871, Dublin. ' Our venerable and beloved Pontiff Pius IX., though a prisoner in Cardinal the hands of his enemies, and oppressed by the weight of years and Cullen to afflictions, is not forgetful of the spiritual interests of his children even c-inan in the remotest parts of the earth, and is ever watchful to preserve them from the snares of the enemy of their immortal souls, who goes about like a lion seeking whom he may devour. Hence, having received complaints against the Rev. Robert O'Keeffe, pastor of Callan, and having learned that the course of things in that parish was calcu- lated to offend the piety of the faithful, to diminish the respect and obedience due to episcopal authority, and to lessen the force of eccle- siastical discipline, His Holiness, in his paternal solicitude for the welfare of every portion of the fold of Christ, has thought fit to appoint me to act as his apostolic delegate in this case, with power to apply proper remedies to existing evils, and to make religious provision for the pious inhabitants of Callan. ' 206 Court of Q ueen's Bench (Ireland). Direct ex- amination of the Ber. Robert O'Keeffe. ' In order to accomplish the task imposed on me, I considered it my duty to enter into correspondence with the Eev. Robert O'Keeffe, to hear him defending in person his own cause, and to afford him every opportunity of justifying himself in the eyes of the Church. I must add that he supplied me with written or printed documents, in which the arguments in his defence were fully developed. ' Having thus acquired a full knowledge of the case, I called on the Rev. Robert O'Keeffe to present himself to me on the 8th of the pre- sent month, to hear the final settlement of the matters at issue, but he refused to attend. Again I called on him to present himself for the same purpose on the 13th of this same month, but he did not attend, and before that day had arrived he informed me by letter that he declined attending, though he knew that I was acting with the authority of the Supreme Head of the Catholic Church. 'Having thus, according to canon law, rendered himself contumacious, I was compelled, much against my inclinations, to adopt severe mea- sures and to suspend the Rev. Robert O'Keeffe in his absence. The decree which I enclose, and of which I forwarded a copy to him, will show you in what terms and to what extent he has been suspended. Having poured forth prayers to God, and invoked the aid of the Holy Trinity, having weighed impartially all the arguments adduced by word of mouth or in writing in his defence, I, acting as delegate of the Apostolic See, suspended and declared suspended, in the name of the Father and of the Son and of the Holy Ghost, the said Rev. Robert O'Keeffe from all spiritual jurisdiction, from hearing confessions, saying mass, administering sacraments, and preaching, until he shall repent and make ample satisfaction to the Church ; I also deprived him of all ecclesiastical benefice or dignity conferred on him by the Church. ' This decree was drawn up, read, and published on the 13th Novem- ber, in the presence of several ecclesiastical dignitaries. It was also immediately forwarded to the Rev. Robert O'Keeffe, who refused to receive it. ' Lest the Catholics of Callan should suffer in their spiritual concerns, by not knowing the facts just stated, you, reverend brethren, will be pleased to read to the people at one of your masses on Sunday the decree herein enclosed, and, if necessary, you can read this letter. After doing so it will be well to call on the faithful to pray for the welfare of their recent pastor, imploring of God to give him grace to provide for the salvation of his soul, and humility to reconcile himself with the Church of God. ' Exhort the people also to be fervent in prayer, to abound in good works, to approach the sacraments, and to do everything possible to strengthen their faith, to confirm their attachment to their holy religion, and to promote a spirit of obedience to the Catholic Church, and to its Supreme Head on earth. We are living in times of danger and tempta- Rev. Robert O'Kee/e v. Cardinal Cullen. 207 tion. God Himself is insulted by atheists and other infidels, the Direct ex- foundations of society are undermined by socialists and communists, an na tion the doctrines of the Catholic Church and its authority are rejected by ^ ev heresy and schism ; whilst all the enemies of God, carried away by a Robert wild revolutionary spirit, and by the pride of their hearts, endeavour to * overthrow the See of St. Peter, the rock upon which Christ built His Church. It is our duty, when surrounded by so many dangers, to arm ourselves with patience and humility, to protect ourselves against pride, to banish from our hearts the prevailing spirit of insubordination and resistance to legitimate authority, in all things following the example of Jesus Christ and walking in His footsteps. Let us recollect that if we partake of His sufferings, we may confidently hope that, when His glory shall be revealed, we shall be glad with exceeding joy. ' Begging of our divine Lord to protect the faithful people of Callan, and imploring of St. Joseph and the Blessed Virgin Mother to obtain every grace, for them by their intercession, I conclude by wishing you and them peace and happiness, and every other blessing through the merits of Jesus Christ. ' Your faithful servant, + 'PAUL CARD. CULLEN.' (Counsel then read the following letter) : ' Callan, December 3, '71. ' MY LORD CARDINAL, A document was read in the Friary Chapel Father here on last Sunday, which pretended to be a sentence of suspension O'Keeffe to passed on me by your Eminence. You have thus for the sixth time passed censure on me behind my back, without any trial or citation to one, and without alleging any crime, as far as I have been able to learn, except that I went to law with Dr. Walsh. I think in the circumstances no one can reasonably expect me to make an apology for going to law with your Eminence. I proposed before to leave the whole of my case to the professors of canon law and theology at Maynooth, and I propose now to leave it to the saying of the three other Archbishops in Ireland. I made every effort to keep all the former cases out of court, and in virtue of my love for peace and religion I make this final effort to keep the present one out of court also. No doubt another half-dozen suspensions will be flaunted before my face ; but, my Lord Cardinal, I tell you plainly that until I degrade myself first by the commission of some crime, I laugh at the folly of the attempts of others to degrade me. ' I have the honour to remain, ' Your Eminence's most humble servant, 'R. O'KEEFFE.' 208 Court of Queen's Bench (Ireland). Direct ex- amination of the Eev. Robert O'Keeffe. Father O'Keeffe continues to officiate in chapel. Interdict on pfirish chapel After the publication of the suspension, did another clergyman come down to the parish? The Rev. Mr. Martin. When did he come? He first celebrated I think on 26th November. Father Neary remained in the parish up to the previous day, the 25th November, 1871. The Lord Chief Justice : How long did the other clergy- man remain ? He left three days before. Mr. Fitzgibbon : The two curates left after the suspen- sion and before the publication? Yes, it was the new curate or administrator that published it, the Eev. Mr. Martin. The Lord Chief Justice : Both curates left ? Yes, both curates left within the week ending the 25th November. Mr. Fitzgibbon : Where did the Rev. Mr. Martin proceed to do duty ? In the Priory Chapel, where the other clergy- men were celebrating. Did you continue to do your duties in the parish chapel ? Yes ; in the same way. And still at the workhouse ? Yes, up to that time. Look at that document [handing witness the interdict, of which the following is a copy] . Translation of Interdict (the original in Latin), dated 16th December, 1871. 1 ' Paul, of the Order of St. Peter on the Golden Mount, Priest of the Holy Roman Church, Cardinal Cullen, Primate of Ireland, Delegate of the Apostolic See, &c., &c., to all the faithful whom it may concern. ' Since it has been told to us by credible witnesses that in a church or parochial chapel of which the Priest Robert O'Keeffe is said to have possession, in the town of Callan, and in the diocese of Ossory, the censures of the Church are violated or set at nought, that the mass is illegally celebrated, that the sacrament of the Eucharist is administered contrary to the discipline of the Church, and confessions heard without jurisdiction, and with no regard for ecclesiastical suspension ; and that several other things which impeach the ecclesiastical laws and episcopal authority are almost daily performed : when we were informed about all the,e things we immediately determined to lay the aforesaid parish church under an ecclesiastical interdict, according to the mode of pro- ceeding of the canon law, which we now do by the force of this decree, and by the authority granted to us by the Sovereign Pontiff in the case of the Priest Robert O'Keeffe, and we moreover declare that church 1 For Latin Copy of Interdict, see Appendix, No. V., p. 583. Rev. Robert O'Keeffe v. Cardinal Cullen. 209 interdicted. Moreover, we warn all the faithful, and exhort them in Direct, ex- the Lord, that they cautiously and diligently observe this censure of a n '' 1 ^ 101 interdict, lest by chance they provoke on themselves the anger and R e v. vengeance of Almighty God, who does not permit His Church to be ?kert despised with impunity, or run into other ecclesiastical punishments. ' Dated Dublin, IGth day of December, 1871. (Seal) + ' PAUL CARDINAL CULLEN, ' Archbishop of Dublin, Primate of Ireland, Delegate of the Apostolic See in the case of the Priest Robert O'Keeffe.' Whose handwriting is it in ? It is in the handwriting of his Eminence Cardinal Cullen. The whole of it? The whole of it. Is the upper part in his Eminence's handwriting or only the body of it ? It is all in his Eminence's handwriting. Where did you get this document? I got it from a young lad of the name of Gleeson. I believe he brought it to you in the town of Callan ? He brought it to me in the town of Callan. Is he here ? He is. Where did he tell you he got it ? Posted on the chapel. He told me he tore it down from the Priory Chapel the pillar of the gate of the Priory Chapel. He had taken it down from the Priory Chapel where it was posted, and brought it to you ? Yes, to me. According to the constitution of the Church, have eccle- siastics in the position of Cardinal Cullen authority to inter- dict a parish church in another diocese ? That will depend on the nature of the commission given. I mean is he intrinsically ? Not ordinarily. I ask you again, did you know until after the bringing of the action, of any letter having been written or sent with copies of that? No, I did not. (The following is the letter referred to) : Letter from Cardinal Cullen to the Parochial Clergy of Callan, enclosed with the Interdict. ' 16th December, 1871. ' With this letter I send you a decree by which, acting on the Cardinal authority of our Holy Father Pius IX., I have placed the Roman Cullen to Catholic Parochial Church or Chapel of the town of Callan under the c-uSn^ ecclesiastical censure of interdict. I was compelled, much against my P 210 Court of Queen's Bench (Ireland}. Direct ex- amination of the Rev. Robert O'Keeffe. Effects of interdict. wish, to have recourse to this severe measure by the information which I had received that the censures of the Church were freely violated in that church or chapel ; that the holy Sacrifice of the Mass was unlaw- fully celebrated, the sacraments of the blessed Eucharist and Penance improperly or invalidly administered, and other things carried on well calculated to undermine ecclesiastical discipline, and to lessen or destroy the respect due to episcopal authority. These reasons are briefly indicated in the enclosed decree, and are sufficient to explain the course I have adopted. ' When bringing this matter before the faithful, you will do well to explain to them some of the effects of an ecclesiastical interdict. I shall mention one or two of them. 'In the first place, as long as a church remains under interdict, any priest, whether secular or regular, celebrating mass in it, or adminis- tering the holy Eucharist or other sacraments, grievously transgresses a law of the Church, and becomes irregular. ' Secondly, if any of the laity hear mass in such a church, or receive sacraments, they become guilty of a serious offence against ecclesiastical discipline, and are liable to be visited by the Church with seveie spiritual penalties. ' To these observations I will add that absolution given by a sus- pended priest, whether in an interdicted church or elsewhere, is null and void, unless in articulo mortis ; and that a penitent having made his confession to such a priest is obliged to confess his sins over again to a priest enjoying jurisdiction from his Ordinary; and, moreover, that a priest suspended from his office, and deprived of his parish, has no right to assist at any marriage ; and that parties giving their consent before him contract a clandestine marriage, of no value in the eyes of the Church, wherever the decree of the Council of Trent on clandesti- nity has been published. 'Before I conclude, I beg of you to point out to the faithful the great evils to which all those expose themselves who resist the Church and despise its censures. Such persons too often incur the misfortune of losing their faith, of leading a corrupt life, and of ending their error by falling into schism or heresy. Raising themselves up in a spirit of folly against the sacred authority of the Church, and despising the humility of the Cross, they are frequently abandoned to the pride of their hearts, and miserably fall into the abyss. As they hear not the Church, the faithful, looking on them as heathens and publicans, can only pray that God may not inflict His severe punishments upon them, but rather visit them in His mercy, and bring them to penance. + 'PAUL CARD. CULLEN.' (Counsel then read the following letter from the Poor Law Commissioners to Father O'Keeffe) : Rev. Robert O'Kee/e v. Cardinal Cullen. 211 ' 17th January, 1872. Direct ex 'REV. SIR, The Commissioners for Administering the Laws for ami ' nil ti Relief of the Poor in Ireland have to inform you that their attention R ev> has been officially directed to the fact that you have been suspended Robert from the performance of certain clerical duties by the Cardinal Arch- bishop, and a printed copy of the document suspending you therefrom has itself been submitted to the Commissioners for their information. ' The Commissioners apprehend that under these circumstances you sioners to are not qualified to perform the ordinary duties of a chaplain in the Workhouse of Callan Union, and unless you can satisfy them that you are so qualified, they must require your resignation of the office. 1 By order, &c., ' B. BANKS, Chief Clerk.' Did you, on 17th January, 1872, receive this letter? I received it on the 18th; it is dated the 17th. Had you, up to the date of that letter, continued to dis- charge your duties at the workhouse, and received the salary ? Yes. Did you reply to that letter? Yes, I replied to it. (Counsel then read the following letters) : ' Callan, January 18th, 1872. ' GENTLEMEN, I have received your letter of yesterday. The Father Cardinal Archbishop of Dublin has no more jurisdiction over me than p e t e the Cardinal Archbishop of Vienna; and even if he had, he would Commis- have no more power to suspend me without alleging some fault than I si oners- would have to suspend him. If, therefore, you will have the goodness to send me a copy of any communication you have received on this subject, I shall be able to refute at once any assertion, by whomsoever made, that I have been canonically suspended. In the meantime, I send you a pamphlet lately published by me, from which you can get much information regarding the alleged caulse of my suspension. ' I have, &c., ' ROBERT O'KEEFFE, P.P., ; R. C. Chaplain, Callan Union Workhouse.' ' 24th January, 1872. ' REVEREND SIR, The Commissioners for Administering the Laws Poor Law for Relief of the Poor in Ireland acknowledge the receipt of your letter gj m e l ' s t of the 18th instant, in reply to their letter of the previous day, stating Father that their attention has been directed to the fact that you have been 0' Ke effe. suspended from the performance of certain clerical duties by the Cardinal Archbishop, and that unless you can satisfy them that you are qualified to perform such duties they must require your resignation f 2 212 Court of Queen's Bench (Ireland) . Direct ex- amination of the Rev. Robert O'Keeffe. of the office of Roman Catholic Chaplain of the Callan Workhouse, in which you observe that the Cardinal Archbishop has no jurisdiction over you, and that he has no power to suspend you, and you forward, for the information of the Commissioners, a printed paper which you recently published, containing information regarding the alleged cause of your suspension. 'In reply, the Commissioners have to inform you that they have read the printed paper submitted by you with attention, but it is not for them to judge of the merits of the controversy which has arisen in regard to yourself as parish priest of the parish of Callan. ' It is plainly and unmistakably before them that you have been suspended from the ordinary functions of a Roman Catholic priest, and, therefore, you are no longer, in the opinion of the Commissioners, qualified for the office of chaplain of the Callan Workhouse. ' The Commissioners request, therefore, that you will resign into their hands that office to which you were appointed by them in their order of the 5th of March, 1863. ' By order, &c., 1 B. BANKS, Chief Clerk.' 1 Callan, January 25, 1872. 1 GENTLEMEN, I have been informed that a letter addressed to me, and professing to be a reply to my communication to you of the 18th inst., was read at the workhouse board meeting this day. I cannot believe you capable of treating me intentionally with such a gross want of courtesy ; and I therefore will consider the communication was put into a wrong envelope by some one in your office, and merely request you will send me a duplicate. ' I am, Gentlemen, &c., It was for something you alleged him to have said on that occasion that you brought the first action against him ? Yes. Where was it he said it ? In the college at Kilkenny. On what occasion ? On the occasion of the conference at Conference the college. There are four great conferences every year, at Kii- an( j a f. fag conclusion of one of these conferences it occurred. kenny. Was it in discharge of his duties as bishop that the bishop was there ? I don't know in what capacity he was there at the time this occurrence took place. Have you any idea in what capacity his lordship is sitting now as judge ? The conference was over when this conver- sation took place between the bishop and me. Is there a formal way of dissolving conferences? Yes. What is it? The conference is said to be over, and a prayer is said by the bishop. Was whatever he said, said in the room where you were ? Prayer was over, the conference dismissed, and before we left the bishop said to me he wished me to remain, and he said to the Rev. James Carr and the Rev. Mr. Walsh that he wished them to remain, and he told some clergyman to call Dr. M'Donald. Were you parish priest of Callan at the time ? I was parish priest of Callan at the time. Was Dr. M'Donald present ? Yes. And the two curates ? Yes. And yourself? Yes. And the bishop ? Yes. Are you able to swear to what he said to you ? Are you Rev. Robert O'Keeffe v. Cardinal Cullen. 219 able to swear to what he said which you made a foundation Cross - of an action ? Oh, I can't swear to every word generally e ** "^ " what he said. Father Did you make a note of it at the time or soon after ? No. ,. ee a What did you say he alleged to offend you ? He first said that he got 2001. from a gentleman in America who wished it to be distributed amongst the poor of Callan. I said to him, I thought the best thing to do with the 200Z. was to give it to the St. Vincent de Paul Society, that I had lately established in Callan, with the permission of the bishop. The bishop said, ' Perhaps the society would not dispose of the money according to your wishes. ' * Oh, cer- tainly/ said I, * I am the chaplain of the society, and the other two clergymen are members of the society, and the society would dispose of it in any way we wished.' Then he said, ' There is no preaching from the Callan altar.' Well now, there had been sixty sermons preached from the Callan altar the previous month. What did you say ? I said, * My lord, if you allude to me in this matter, I can tell you where I preached every Sunday of the year, the subject of which I addressed the people, and the number of minutes I am speaking.' He turned round to Dr. M'Donald : * Do you hear that ? ' I said, * I can do it, my lord, because I always keep a record of those facts when- ever I address the people. I note down the length of time I am addressing them, and I note down the subject and place.' Tell me all that was said that huffed you ? Well, then, he said, ' Going to the workhouse is not preaching.' ' Well, my lord,' I said, ' I think I ought to take my turn at the workhouse as well as every other chapel in the parish. It is my practice to visit all the chapels occasionally.' Welly then, with regard to this letter to the Bishop of Mont- pelier, ' I don't mean to write a letter to him,' says he ; 'he didn't ask me to write him.' 'Well, my lord,' said I, ' didn't the nuns of Montpelier tell me that the Bishop of Montpelier requested your lordship to write to him before he would dismiss the nuns and send them under your care.' ' Well,' said he, ' I don't wish to have the nuns come.' * It is a very awkward time to say it after I expended 4QOL of their money/ said I. He said, ' Why did you oxpencl it ?' and 220 Court of Queen's Bench (Ireland). Cross- * I won't write a letter to the Bishop of Montpelier.' ' Well ^foTof now > m j lord, I won't take that answer. I won't take that Father as an answer to my communications from you; put it in _ e> writing.' * Well, I won't put it in writing,' said he. ' Well, I won't take that answer,' said I. I had informed him pre- viously that I wished he would state in writing his objection to the ladies coming, as I would write to Cardinal Barnabo, and I could not do so unless he stated in writing his reason. I placed myself in a most unpleasant position. I had ex- pended their money, and had been doing it the previous nine or ten months. Tell us what occurred at this meeting that gave you such offence that you never forgot it yet. He said he would give no written answer, and I said I would take 110 answer but an answer in writing. * I am. your bishop,' said he. ' Well, my lord, if you were my bishop fifty times I will take no answer but a written answer. I will consider it no answer.' I consider it more respectful to the memory of Dr. Walsh to say no more, but if you wish for it I will tell you. Serjeant Armstrong : Go on and tell us what occurred ; tell me what it was that gave you such undying offence. ' A nice thing,' he said, ' to put nuns under your care ; you are not fit to have the care of nuns. You were a shopkeeper first when you went to Callan, and now you are turned schoolmaster neglecting the duty of the parish.' He said, * When there were nuns under your care before, I was obliged to remove you.' The Lord Chief Justice : To remove you or them ? To remove me. The nuns were not under nay care for more than twenty years before. Well, he also said, ' A charge was made on your morals since you went to Callan ; ' and if you allow me I will explain that, as his Eminence knows something about it. Serjeant Armstrong : A charge was made on your morals since you went to Callan. Go on and tell us all that was said. Will you allow me to explain ? It will be better to give us the narrative first ; tell me what he said. ' No, iny lord, I am not prepared for this,' said I ; ' if you have any charge to make against me you should have summoned me and given me an opportunity of defending myself, and I am not prepared for this, and I say Rev. Robert O'Keeffe v. Cardinal Cullen. 221 it to you that your conduct is quite improper ; ' that was Cross- what I said to the bishop that his conduct was quite im- e ; a "f " proper. ' Well/ he said, ' improper !' * Yes,' said I, ' highly Father improper.' That put an end to the whole conversation. The Lord Chief Justice : Is that the whole ? That is the whole of it, I think. Serjeant Armstrong : Now have you stated all that he said about your morals or morality ? I think so ; I think so. Try and recollect. Well, I think so. Now you are at liberty just to reflect. I think so. He did say since you went to Callan you were charged ? He did. Was that for something that occurred in Callan? I don't know. Oh, you understand it. No, it was not for something that occurred in Callan. What was it ? I will tell you what it was. The Lord Chief Justice : Was this the first time that this subject had been communicated to you ? The first time, oh no ; I am going to explain. Serjeant Armstrong : He says he knew what it referred to ? I knew what it referred to. There were two nieces of mine in Callan in business, and they wanted a foreman to conduct their business grocery and general business and they saw an advertisement in the newspaper from a person that proposed to conduct the business of a grocery establish- ment, and they engaged this man ; his name was shall I mention his name ? Serjeant Armstrong : It is immaterial. Well, this man came to Callan in the capacity of foreman to my nieces in their establishment at Callan. He conducted himself very badly ; he was an habitual drunkard, and when he was spoken to he promised reformation, and he even took a temperance pledge from me. I administered to him the temperance pledge, and it produced no reformation on him. My nieces were obliged to dismiss him ; he demanded a certificate of good conduct from my nieces, and I told them they would not be justified in giving him a certificate. He went away from Callan -without the certificate ; he wrote to me to write to my nieces, and asked for a certificate of good conduct. I wrote to him to say that it was impossible for 222 Court of Queen's Bench (Ireland). Cross- me to give him the certificate he required, as I was unable examma- to cer tify that he was a man of good conduct. He wrote to Father my nieces and wrote again. My niece, now Mrs. Laherty, 3'Keeffe. wag (j eg i roug to give him a certificate because she thought him a dangerous character. She thought it would be better to put him oft 7 some way, as he was a man that would be troublesome. I said ' No, he brought certificates here that caused you great loss, and don't be the cause of loss to anyone by giving a certificate of character. Well, then he wrote threatening letters that if he didn't get certificates of character he would resort to some means that would not be pleasant. I took no notice of his letters, and directed my nieces to take no notice. He then wrote a letter to Dr. Walsh, Bishop of Kilkenny. He reported to Dr. Walsh that I was a shopkeeper, and that I employed him for a certain time in a shop that I kept at Callan, and that I refused him a testi- monial when he was leaving ; and he asked the bishop to direct me or my niece to give him the testimonial that he required. The bishop sent the letter to me and asked me for an explanation. I sent the bishop an explanation, and stated to the bishop that the man was so badly conducted that I told my niece she would not be justified in giving him a testimonial of good conduct, and that was the only reason he got no testimonial. I said he had been pardoned several times without reformation, and that I had ad- ministered to him the temperance pledge, and still he was as bad as ever. The bishop was quite satisfied with the ex- planation, and he sent no letter to this man. The man wrote to him again when he got no letter from the bishop, and the second time the man made very wholesale charges against me and my niece, charging us with very vile conduct. The bishop took no notice of that letter ; he neither sent it to me, nor sent any reply to the man who wrote it. The man then wrote to Cardinal Cullen. Did Cardinal Cullen tell you so ? He wrote to Cardinal Cullen, and Cardinal Cullen forwarded his letter to Dr. Walsh. Dr. Walsh, when he got this letter from Cardinal Cullen, wrote to me. ' I would not,' said the bishop, ' write to you again about this man, only that I had a letter from Cardinal Cullen, from the satisfactory explanation which you gave me before in reference to this matter. But I R&v. Robert O'Kee/e v. Cardinal OuUen. 223 now,' said he, 'forward you a letter that he has sent to Cross- the Cardinal, and I also forward you, as I am sending that ^j^of " letter, a second letter that I received from this man, and Father that I would not forward you in consequence of the expla- ee e< nation you gave me. But as I have received the letter from Cardinal Cullen, I wish to let you see all the papers I have received.' I wrote to the bishop when I received this com- munication, and stated to the bishop what I supposed the bishop forwarded to the Cardinal. I stated it in such a way that I supposed the bishop would send it to Cardinal Cullen, I again explained to the bishop the reason he received no testimonial from my niece, so that she could not in con- science give him the recommendation he wanted. I also stated that my niece found out after he had left her place that he had been, during the time he was with her, a married man separated from his wife ; that his wife was unable to live with him by reason of his vicious habits ; and I said ' if Cardinal Cullen wishes to inform himself any further let him send for his wife, who is a dressmaker in such a place in Dublin, and she will be able to tell his Eminence. She has been for many many years unable to live with him by reason of his vicious habits.' I never heard anything about the whole thing from that day, about a year and a half, until it was thrown in my face on the 5th May, when the bishop got into a passion with me. I understood him at once to mean the charges that this man invented in reference to me. And that happened about a year and a half before the occurrence of the 5th of May ? Yes. And there was an end of it during a year and a half? I think so. How long before that had you any business with the con- vent in Kilkenny ? I left the convent in the year 1849. I left Kilkenny in 1849. That was twenty years before ? Yes. So that any allusion to your morals made by the bishop in 1869 didn't stretch back to your connection with the convent twenty years before ? I understood him to refer to the time I had been with nuns, which was twenty years previously. Did he say, ' I don't think your morals are the best ' ? 224 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. First" action against Bishop Walsh. He said lie had to remove me when I was in charge of nuns before ; that was the first I heard of it. Did he say anything about your morals in Callan ? He said I was not fit to have the care of nuns ; and that when nuns were under my care before, he had to remove me. He made a reference to some allegation brought up against your morals at Callan, and you explained what you understood by that ? Yes, that man's letter. Did he charge you with having been immoral when con- nected with the convent twenty years before ? He didn't charge me with being immoral, but he said, ' You are not fit to have the charge of nuns ; and when nuns were under your care before, I had to remove you.' The Lord Chief Justice : Did he appoint you to a parish afterwards ? In the meantime he had appointed me parish priest, and he had transferred me to Callan, and made me a vicar-forane, representing him over one-third of the diocese ; and he had made me treasurer to the chapter of Ossory. Serjeant Armstrong : Did he say to you on the 5th of May, 1869, that when you were connected with a convent before, you were immoral, or that your morals were bad ? No, he didn't. Did he mention the word morality, or moral, or morals, in connexion with anything but that Callan fellow ? No. He didn't? No. You brought your action against him for what he said on that occasion, of the 15th May, 1869, that was in ten days, claiming 3,OOOZ. damages ? I believe 5,OOOZ. Who was your attorney ? Mr. Meredith. Did you instruct him in the words that you charged the bishop to have used ? I repeated as well as I could to Mr. Meredith what I have stated. Now I will read from the summons and plaint what you charged the bishop with having said on the 6th May, 1869. Witness : I gave Mr. Meredith one of this man's letters. (Counsel reads from summons and plaint) : 'The defendant in presence and hearing of divers persons falsely and mali- ciously spoke and published of the plaintiff, in his character of a priest of the Church of Rome, in relation to his office of parish priest of the said parish of Callan, the words fol- lowing, that is to say : * I will have the nuns prevented from Rev. Robert O'Keeffe v. Cardinal Cullen. 225 coming to Callan at all, and will write to Rome for that pur- Cross- pose ; you are unfit to have nuns under your care, inasmuch ^^"f " as your morals are bad.' On your oath, did he ever say that Father to you on the 5th of May ? I don't think he said that in Q ' Keeffc * reference to nuns but in reference to Callan. He said charges were made upon my morals since I went to Callan, but he didn't speak of that in connection with the nuns. Now listen to this further : * meaning thereby that the plaintiff had been guilty of incontinence, and was a person of immoral and dissolute habits.' Mr. Pwcell : You know we are answerable for that. Serjeant Armstrong : That is a most irregular observation that you are answerable. You know nothing at all about this present case in my hands. (To witness) : Did you under- stand him to impute to you incontinence in saying there was a charge against your morals ? That is, in reference to the Callan business ? No, in reference to the nuns ? Did you understand him to mean that ? I only understood him to refer to the morals in connection with Callan. There was nothing about incontinence in that. Witness : In the letters of this man ? If you saw them, you'd know that. But not about the nuns ? I did not understand him to say that in connection with the nuns. Listen to this : ' When you were connected with a convent before, your morals were bad also;' did he say that? I think what he said was Did he say that? answer my question. Well, I won't undertake to say that he said that. Don't you undertake to say that he did not ? Have you not sworn that if he used the word morals or immoral it was not in reference to the nuns in the convent ? I don't think he did speak of the nuns, but in reference to Callan ; he said that charges had been made upon my morals since I went to Callan. Listen to this (Counsel reads) : 'When you were connected with a convent before, your morals were bad also ' (that is, also as well as at Callan), 'meaning thereby that the plaintiff, at a former period, when discharging the duties of a priest of the Church of Eome, in connection with a convent of nuns, Q 226 Court of Queen's Bench (Ireland). Cross- had been guilty of improper and immoral conduct in his Tkmof 1 " character of such priest, and in relation to the discharge of Father his duties.' Did you understand him to impute that to ;_ e ' you ? Well, I cannot say whether he used that language. (Counsel reads) : ' Since you went to live at Callan your life has been a public scandal.' Did he say that ? Yes ; yes, he said that. Why didn't you recollect that before when I asked you to recollect all he said ? Yes, he said that ; he said that I was a shopkeeper before, and that I had turned schoolmaster now. (Counsel reads) : ' I shall represent to Rome the impro- priety of having nuns allowed to come into your parish.' Witness : He said he would write to Rome. Did he say that he would represent the impropriety of letting nuns into your parish? Well, he said something like it. Those are not the exact words that he said, but he said that he would write to Rome to prevent the nuns coming. I am not accountable for what is there. I put one of the letters that this man wrote into the hands of Mr. Meredith. Compro- You got 550Z. out of that out of the bishop ? 550Z. were mii : t ' of paid over to me. From the bishop ? Yes, from somebody. James Poe gave me a cheque for it. I don't know where he got it. He was the bishop's attorney? He was the bishop's attorney. And a portion of that was to indemnify you against costs ? I made no arrangement of that sort. Wasn't it a part of the settlement? The terms of the settlement were that the 550L was to be put absolute^ into my possession You told me yesterday that it was to pay back the nuns with a part of it, and your own costs with the rest ; is not that what you got it for ? No ; I got it absolutely transferred to myself to do what I liked with it, but I meant to return it to the bishop as soon as he would send the nuns to Callan, or agree to receive them. Did you say yesterday ' I got 550Z. for the settlement ; it was intended to compensate the nuns for their expenditure, and to pay my costs.' Did you say that yesterday ? Can I explain ? First answer my question. Did you swear that yester- Rev. Robert O'Keeffe v. Cardinal Cullen. 227 day? I will repeat what you said 'I got 550/. for the settle- Cross- ment, it was intended to compensate the nuns for their ex- ^o^'of" penditure and to pay costs, and I gave up Callan Lodge to Father the bishop?' Witness : It was as it were, quasi, intended. It was a sort of contrivance in order to make it appear which I was willing to consent to that the bishop was not assessed in damages for a slander ; it was put in that way. Who contrived that ? It was arranged between Mr. Meredith and friends of the parties. Don't put it on the shoulders of the unfortunate solicitor; was not that your own contrivance ? I was no party to the arrangement at all. On the contrary, Mr. Purcell was there and Mr. Butt was with him, and I said, 'Now I mean to give back this money to the bishop when the nuns come to Callan, but do you see that the money is transferred to me absolutely.' Aye, aye. So that I may have it in my own name. Under your control ? I intended to do what was right with it. Didn't you yesterday tell the jury that it was intended to reimburse the nuns for their expenditure of money upon Callan Lodge, and to pay you jour costs, and that the nuns' money had been expended on Callan Lodge, and that you, in pursuance of the settlement, gave up Callan Lodge to the bishop. That face was put on the transaction, was it false ? That face was put on the transaction. Was it false? was it false, Father? Well, it was fictitious; I allowed that face to be put upon it. And that was a false face and a mask ? Well, there was nothing dishonourable in giving the transaction that appearance. Where is the money now ? Did the nuns ever get the money back ? They never got it, or it was never intended that they should get it ; it was intended to be returned to the bishop, that was my intention. Who got it ? It was never Who got it ? It was never intended Who got it ? Who got it from me ? Who got it from the man that gave it to you ? I don't mid erstand Q 2 328 Court of Queen's Bench (Ireland). Cross- Did you get a cheque for the money ? I got a cheque Ton'o?" fr m Mr ' JameS Poe ' Father Did you lodge the money in your own name in the bank? O'Keeffe. /-^ , . -, Certainly. Did you ever pay a penny of it to man or woman living, nun or bishop ? It was due to no one. Why did you say yesterday it was intended to pay the nuns the money they laid out on the house ? I intended that. Your intentions were good ? And I made no secret of my intention. But your performances were a little short ? I intended to pay it to the bishop when he established the nuns at Callan. After he had said that he would write to Eome to prevent the nuns coming there ? Friends interfered before that, and before I took the action against the bishop, I asked him would he pay the expenses that I had been at in fitting up the place for the nuns ; and if he did that or allowed the nuns to come, I did not want to take advantage of his words at all. But I was in an exceedingly awkward position, and I was after laying out the money of the nuns, and to the knowledge of the bishop I had been laying it out for nine or ten months, and at the end of that time he asked, * Why did you spend it ? ' And had the money of the nuns been laid out on Callan Lodge ? About 6007. of the money of the nuns. Had been laid out for preparing Callan Lodge for their reception ? Yes. That money had come from the community, had it ? No, it came from the nuns. Now, sir, didn't you represent that your object in getting the 550?. was not to punish the bishop at all, or to get any damages from him, but to put you in a situation to return their money to the nuns ? Oh ! not at all, not at all ; I told everyone. What did you mean by swearing yesterday that the money was intended for the nuns? I told the bishop and his friends and everyone, that I did not want his money, but that I wanted to be put in a right position, and repeatedly before I took the action, I stated to his friends and to my Rev. Robert CfKeeffe v. Cardinal Cullen. 229 own to Dr. McDonald, who is here present in court and Cross- knows it that if he was willing to let the nuns come, or ^f^ 1 "*" was willing to repay me the expenditure I had made on the Father house in fitting it up for them for the last ten months, I did not want to force him into a court of law. But you said yesterday that it was intended partly to pay the nuns and partly for your own costs? Witness : In- tended, by whom? I intended always to return the money; I did not want to get money for being slandered. Was your great object, on the contrary, to bully the bishop ? No, but to establish the nuns in the house that I had fitted up for them, and where I had expended their money for nine or ten months. I did not understand being put into a false position. Everybody is wrong but Father O'Keeffe. How many actions and summonses have you had since you launched that action ? Taking them altogether, have you had a hun- dred? No. Fifty ?_ No. How many ? Well, I suppose three or four. How many summonses to the sessions at Callan? Wit- ness : Is it in Father Neary's case ? All the cases ? One summons. Two actions against the bishop, one against Father Walsh, one against Father Neary, one against Dr. M'Donald. Have you brought any action against the Poor Law Com- missioners? Not yet; but they will hear from me after some time, and the Board of Education too. How much have you made altogether in a lump out of your several actions? I have made a loss of 7001. or 800Z. Taking the debit and credit side of the account, you. are out 700Z. or 800Z. ? Oh, at least. Was there a more disgraceful character in the Irish Church than the late Dr. Walsh ? I don't want to say any- thing about Bishop Walsh or anybody else ; what I stated in private about Bishop Walsh was placed in my hand here against the protest of myself and my counsel, and the Chief Justice knows that. Did you expect to walk up there and allow yourself to be represented as a blameless, harmless man, that never attacked anybody. I am a harmless man, and never attacked a 230 Court of Queen's Bench (Ireland). Cross- mortal, but I must defend myself when I am attacked, and ^iou'of " I have a perfect right to defend myself by those means, be- Father cause I must tell you, Serjeant, that it is an established prin- O J\ i'l.'lri't i * ii i ciple in theology Theology; don't tell me about theology. Witness : And in canon law too ; that if you have no means of defending your character except by defaming your assailant, you are warranted in defaming him ; not in calumniating him, but in publishing his life and character in defending yourself. If anybody defames you, you are at liberty to defame him ? You are warranted in defaming your assailant, and I asserted that before Dr. Cullen, and lie was not able to contradict it, and I stated that every theologian holds it, and 1 say so in this chair. I do not mean to calumniate or to slander but by telling the truth ; I defy theologian to contradict it, or any lawyer. Is not this one of your broadsheets, 1 published by you ? (Document produced.) Not published printed. Did you never give them to anybody ? I did ; I got that printed for private circulation. Is that your handwriting (letter produced) ? Yes. That was sent on the occasion of your sending one of your -broadsheets to the person to whom you wrote the letter? It is the Very Rev. Mr. Crean. Who was he ? Provincial of the Augustinian Friars. Counsel reads letter. I asked you did you publish that, and you hesitated. Did you read it from the altar? Witness : Did I read it before I gave notice to Dr. Cullen that I should read it? I am putting a legal question ; didn't you read that from the altar ? I read a portion of that from the altar. Didn't you read every word of it ? I did not. Do you swear that ? I do. Look carefully over it and eliminate for me what part of it you did not read (handing witness the printed document) ? Well, I should say I read as far as that (pointing to near the end of the third page, i.e. to end of passage referring to the bishop's conduct.) That is three sheets of it. Now you say that it is a priii- 1 For contents of the Broadsheet here referred to, see Appendix No. I., p. 577. Rev. Robert O'Keeffe v. Cardinal Cullcn. 231 ciple of theology that if you are defamed you may defame Cross- your defamer ? I do not, Serjeant. ^oTof " Well, what is your principle ? I said that if the defa- Father mation of any assailant be necessary for the just defence of my own character, I am warranted in defaming him ; not in calumniating him, or telling lies about him. Defamation means simply taking away his good name, and I am war- ranted in that, when it would be the only means I have of protecting my own character. I suppose your congregation came there to attend Divine worship ? Yes. To see the Sacrifice of the Mass, to partake of the Com- munion, and hear a sermon, if you chose to preach one ? That was the purpose for which they assembled, of course. Here is what you read from the altar to them : ' Callan, 1st August, 1869.' Didn't you preface this by saying, * My friends, I would have you to give your attention to what I am about to read to you. As I proceed, the subject will ex- plain itself,' or words to that eflfect? I dare say. Mr. Purcell : Read the heading of it. Do you see at the top : ' The following letters are printed only for private circulation.' Serjeant Armstrong : What nonsense that is. You didn't read that ; look at that, and say whether you read out that? I would not undertake to say that I read it. I will read it if Mr. Purcell likes. ' The following letters are printed only for private circulation.' Counsel then read from the printed document the heading of the broadsheet referring to Bishop Walsh, as follows : 4 His life of traffic in sacraments and dispensations being notorious throughout the whole extent of it, if any injury to religion arise from anything I may say or write, let those look to it who have refused me justice,' and also the letter to the Bishop of Carlow, dated 1st August, I860, 1 containing the following : ' I have been informed that when you were lately giving a retreat at Maynooth to the Dublin clergy, you took occasion to say that the Irish Church had fallen upon truly deplora,ble times when a parish priest was found in it capable of dragging his bishop before the world into a secular court. 1 Supra, p. 132. 232 Court of Queen's Bench (Ireland}. Cross- examina- tion of Father O'Keeffe. You say lie thought it was a deplorable thing for a parish priest to bring his bishop into a lay court. Don't you think it was a matter of regret all over Ireland ? I didn't bring the bishop into a lay court. Well, you knocked 550?. out of him. Then you say in your letter that you distinguished yourself at Maynooth. But do you think that if Dr. Lynch, or any other person at that conference of the clergy, had said * it is a very deplorable thing to find any parish priest bringing an action at law against his bishop, in connection with words that the bishop said to him in the exercise of his office as bishop/ you would see anything wrong in such a declaration ? Oh, there was a great deal more said than that. (Counsel reads) : ' You took occasion to say that the Irish Church had fallen upon truly deplorable times when a parish priest was found in it capable of dragging his bishop before the world into a secular court.' That is all you imputed to the man that he said ? It was not necessary to go through the history of all he said. Supposing nothing more was said than that, was there anything to take fire at ? Oh, there was a great deal more. But supposing there was nothing more than that, would you think there was any great harm in saying it ? Well, there would be harm in it. Then do you think it is not a deplorable, but a commend- able thing ? I consider that this language would be ascri- bing to me that I had done what was very improper. It is a pleasant thing to see a priest and bishop of the same Church pitted against each other in an action at law ? If it cannot be avoided it is right. It is only justifiable when it is necessary. (Counsel reads) : ' Seeing that if such a thing as you sup- pose to have occurred, has actually taken place, you would desire at retreat to caution ecclesiastics against falling into this crime, it is not out of place to inform you that if you will look into the books of the Rolls Court for the year 1857, you will find that a decree was obtained then and there by one ecclesiastic against another for a debt which it is notorious the latter never personally contracted, nor honestly and fairly owed.' Didn't you allude to the bishop there ? I did. And one of the priests of his diocese ? Yes. Rev. Robert O'Keefe v. Cardinal Cullen. 233 Did you allude to a suit for administration in the Bolls Cross- Court ? I don't understand you. It was a suit instituted ^^"f " by the bishop against an administrator. Father Of an intestate ? No, not an administrator of an intes- tate, but against an executor and administrator under a will. Against the personal representative of a dead man ? Just so. Didn't you tell your congregation from the altar, * Here is what the bishop did ; he brought a suit against his own priest ? ' Certainly. (Counsel reads) : ' Execution in this case has never been levied; not, however, in consequence of any tenderness on the part of the plaintiff, but because the Protestant sheriff absolutely refused to seize and sell the poor priest's effects, alleging that all the police in the county would not be able to protect him from the vengeance of the pastor's flock.' You announced that from the altar ? I did. That the Protestant sheriff would not seize ? Yes ; he would not seize. What was your authority for saying that ? I had the authority of the bishop's own attorney. Who was that ? Mr. James Poe. And I had abundance of authority besides. He told me that Mr. M'Cready would not seize for them. Do you recollect the people saying, 'Hut, tut, tut/ throughout the chapel, and making expressions of mur- mur and amazement? I don't remember that. Don't you remember that the people began to sigh and sob ; on your oath ? I think not. Will you swear that it did not occur ? (Counsel reads) : ' These facts are known to every one in this part of the world, as the plaintiff in the action is a mitred ecclesiastic, not many miles from the city of Kilkenny.' That was the bishop ? Yes. (Counsel reads) : ' And the defendant, an archdeacon of his own creation, not much farther from the small town of Ballyhale. I have the honor to remain your lordship's most faithful servant, Robert O'Keeffe.' Now you read out this further this is poor Bishop Lynch. 1 'My dear Sir, I lose no time to assure you that I did not say one word, or 1 Supra, p. 134. 234 Court of Queen's Bench (Ireland} . Cross- make any allusion to the subject of your correspondence "tkra'of " Curing the retreat I gave at Maynooth. I remain, dear Rev. Father Sir, yours faithfully, J. Lynch.' Now, you read also, ' Callan, JKeeffe. August 7thj 1869> To hig Eminence Cardinal Cullen. 1 My Lord Cardinal. When you read the enclosed correspondence between Dr. Lynch and me, you will best know whether or not it concerns you in any way. I consider I made a great sacrifice for the good of religion by not stating in court my case against Dr. Walsh. This sacrifice has not been appre- ciated in quarters where it ought to be. It is now rny intention to write out a history of the whole case, and to send a copy to your Eminence, and some other ecclesiastics in high station. You will all then see whether I have been fairly treated or not. You will also see whether I shall be justified or not in saying to Dr. Walsh, ' either withdraw your threat of writing to Propaganda to get the document issued to me cancelled, or let my case go before the world.' That was the old story about the nuns ? Yes. That was the first letter you ever addressed his Eminence upon this subject ? I think so. (Counsel reads] : ' The bishop's abuse of the sacred tribunal of penance is fearful. He has rendered the divine institution so odious that many sinners would prefer to die in their sins rather than confess to him reserved cases.' 2 Repeat the vow of obedience and reverence for that bishop which you took at your ordination ? The bishop says on the occasion of the ordination, ' Do you promise me reverence and obedience ? ' and the clergyman, the ordinandus, the person about to be ordained priest, says ' I promise.' And that was observed in the case of your ordination ? Yes. Do you know the Decree of the Synod of Thurles on the same subject ? Yes, I am acquainted with the statutes of Thurles of 1850. And the profession of obedience ending with the words (they will bring it to your memory), Spondeo et juro, 'I vow and swear ' ? I never made any vow of obedience. Mr. Purcell : 1 object to Serjeant Armstrong reading any vow or promise made except at the time of the plaintiff's ordination. 1 Supra, p. 134. J See Appendix No. I., p: 579- Rev. Robert O'Keeffe v. Cardinal Cullen. 235 Serjeant Armstrong : I will read any oath. I please. Cross- Witness : I never made any vow of obedience, simply a ^"'oST promise. I was ordained in 1 840, by the late Dr. Kinsella, Father in Kilkenny. The words used by the bishop are : Promittis ee tnihi et successoribus meis reverentiam et obedientiam ; and the answer is, Promitto. Serjeant Armstrong : Did you make a profession of faith on being appointed to a benefice ? Yes. Is this a part of it ? ' J acknowledge the Holy Catholic and Apostolic Church, to be the Mother and Mistress of all Churches, and to the Roman Pontiff, the Successor of Saint Peter and Vicar of Jesus Christ, I vow and swear true obedience.' (Counsel continues reading the broadsheet] : 'I have frequently met such penitents in the sacred tribunal, and other confessors can say the same. At the last visita- tion of this parish, the bishop sent my curates to seek publicly, in the church, a certain man who had come to receive confirmation, and who had been with the bishop some time previous to confess the reserved sin of drunken- ness on a Sunday. When he was found in the con- gregation and brought to the bishop in the sacristy, the bishop, in presence of many priests and lay persons questioned him on the Christian doctrine, and then publicly asked him whether he had received absolution from his confessor. When the man said he had, the bishop publicly reproached him with having made a sacrilegious confession, inasmuch as, he added, no jurisdiction had been given by him for the man's confession of the reserved sin of drunkenness. The bishop had no knowledge whatever of the man except from his confession of the reserved sin. After the bishop had given confirmation, about twenty penitents who had fallen into reserved sins came to him to obtain jurisdiction for their confession, and he said to them all, pointing out with his finger a corner of the church, " Let all who have been drunk on a Sunday go into that place." About ten went into the place indicated. The bishop then said to them, in the hearing of all in the church, "You drunkards, I will not listen to one of you here ; you must all come to Kilkenny." Thus with the hope of obtaining sacramental absolution, they were induced to make a public confession of their sin, and yet no jurisdiction would be given by the bishop. In these 236 Court of Queen's Bench (Ireland). Cross- and like cases the bishop pays no respect whatever to the seal tion of f confession. ' 1 (To witness) : Do you know that according to Father the canon law, of which you say you are a professor, a bishop ' for revealing what is told under the seal of confession, might be deprived of his bishopric ? Yes, and he ought, and shut up in a convent for the remainder of his life. And you told your congregation that ? I state facts that I witnessed ; you pronounce judgment if you like. (Counsel reads) : 'And this is well known throughout the diocese. His avarice is equally notorious, but I will only mention to your Eminence one case out of many. A man named George Kehoe, who died some years ago, directed his executor Edward A. D'Evereux, to give 100/5. for the celebration of masses, as soon as possible after his decease, but the bishop induced Mr. D'Evereux to invest the money in the public funds, for an annual office to be celebrated in the bishop's own church, and he and his curates divide between them every year the income of the investment.' J (To witness) : Where did you get that ? I got it from Mr. D'Evereux, the man who was the executor of Kehoe. This was part of the letter to Cardinal Barnabo ? Yes. You are proud of it? I was bound to do it. I could not avoid doing it. Why do you say you were bound ? If you understood the circumstance under which this was done. (Counsel reads) : ' His thirst for money is insatiable, and he is unscrupulous in satisfying it. ... Religion suffers every day the mitre remains on his head.' * Is not that the same bishop, to whom you had long before made a most penitential apology for having said anything against him a whining apology ? For having said anything against him ? Or offended him in any way ? I never said ought dis- respectful of the bishop in public. Is there anything disrespectful in that which you read from the altar ? I did not do it until I was forced. Do you think you are fit to be a priest after that ? The Lord Chief Justice : Is this a part of the case, or are you putting it in now. Serjeant Armstrong : I am putting it in now. I am cross- examining him. It is a broadsheet which the witness on See Appendix No. I., p. 080. Rev. Robert (fKeeffe v. Cardinal Cullen. 237 the table printed and sent to different people, amongst Cross- i-i i examina- others to tion of Witness : I sent it to all the bishops in Ireland : to try and Father get peace. O'Keeffe. Mr. Purcell: I don't think a ' broadsheet' rightly describes that document. It is a printed copy of certain letters pre- viously addressed by him to the defendant and other parties. Serjeant Armstrong : That is a very long name, but I will call it a broadsheet. Part of this ' broadsheet ' is an extract from his letter to Cardinal Cullen. (Counsel reads) : ' I may tell you now, my Lord Cardinal, that I could claim the honor of addressing you as an acquaintance. I was intro- duced to you twenty-five years ago, by our mutual friend the great and good man who then wore the mitre of Ossory, and who invited me to form one of a small party that met you at his dinner table. This great prelate walked with me on the following day, and said to me, " Did you notice Dr. Cullen yet ; what an humble man he is. I tell you, sir, he is a clever man." Dr. Kinsella gave more of his confidence to me than to any other priest of his diocese, and for the last five years of his life I was more intimately acquainted than any other with his habits and his morals. He died on the llth of December, 1845. On the morning after his death, the public car from Kilkenny conveyed the news to a certain parish priest who was holding a station in a house near the Bridge at Waterford ' l (To wit- ness) : Who was that clergyman ? That was the late Dr. Walsh. The bishop? Yes. (Counsel reads) : ' This parish priest you will expect me to say immediately placed himself on his knees at the altar, where mass had just been celebrated, and offered a prayer for the departed soul. No, my Lord Cardinal, he walked deliberately across the room to his youngest curate, and said, " He is gone now, he was a bad man, and a worse Christian." (To witness) : Who told you that? The curate to whom the bishop said it. Who was that ? Well, I don't know whether I ought to mention his name. 1 Supra, p. 138. 238 , Court of Queen's Bench (Ireland). Cross- Indeed you will. He is the Rev. Thomas O'Shea, P.P. ^orTof 1 (Counsel reads) : ' The lion was dead, and the Phrygian Father philosopher has told you the rest.' ,0'Keeffe. was tte ,^ Kinsella. That was the grand Kinsella. He said it the instant the breath was out of him. Do you know the allusion to the Phrygian philosopher ? Who was the Phrygian philosopher ? I meant ^Esop. The allusion was that when the ass was roaming about and found the lion dead, he lifted his heel and gave him a good kick. And you wrote to the Cardinal representing the bishop as the ass ? I ]eave the application to you, Serjeant. On your oath, didn't you intend to represent your bishop as an ass ? Certainly I could not use a more moderate ex- pression under the circumstances. (Counsel reads} : ' This same parish priest happening to be narmed executor in the good bishop's will, was asked by the bishop's senior curate to name a priest to preach the funeral oration.' (To Witness) : That the departed bishop named Dr. Walsh as executor in the will? Yes, he was named one of the executors. (Counsel reads): 'His answer was, Let Father John preach it. This was a priest to whom the bishop made an unfavourable allusion in a public document.' (To Wit- ness) : Who told you that? The Rev. Robert O'Shea, P.P. Ballybate. (Counsel reads) : ( Now my Lord Cardinal, be not as- tonished that this same parish priest has been charged with slander in the year of grace 1869.' That is the action? Yes. (Counsel reads) : ' Nor be surprised at being told, that while he continued parish priest, one of his three curates would not be permitted to baptize a child if the fees were not laid down before the ritual was opened. But you may say that he is now a bishop, and incapable of extortion or of oppression of the poor. Yet, my Lord Cardinal, I was his vicar for two years, and my instructions were to grant no dispensation, even in a single publication of banns, unless the pound-note were forthcoming. And the same instruc- tions have been delivered to my successor. A poor man Rev. Robert O'Keeffe v. Cardinal Cullen. 239 from the ' Height of Ireland ' must walk to the city of Cross- Kilkenny, a distance of thirty miles, and home again, if ^-^"f " the near approach of Lent or any other cause should make it Father necessary for him, to seek a dispensation in a single publica- oe tion of his marriage banns.' To Witness : Where is the Height of Ireland ? There is a mountain called the Height of Ireland about thirty miles from Kilkenny, in the parish of Commins. (Counsel reads) : 'Why do I state these facts ? I believe through a good motive. I consider that Dr. Lynch and your Eminence have presumed the bishop to be right and me to be wrong in the difference which has occurred between us, and I want to destroy that presumption in your minds.' (To Witness) : Is that the principle of theology to which you refer ? It was a false presumption. And you wanted to blacken the bishop in every way you could ? No, I didn't want to blacken him, but I wanted to show them that they were not justified in assuming that because there was a quarrel between the bishop and me, I should be wrong and the bishop right. (Counsel reads) : ' I trust in God I shall neither now nor .at any time do anything injurious to our holy religion, but I will not fail to use every proper means of effecting -the great object I have in view, namely, to establish in the Callaii Lodge, where I have expended 6001. of their money, a community of holy Irishwomen now living in the Con- vent of the Sacred Heart of Mary at Beziers.' (To Witness) : That was your darling object all through ? Yes. Do you know that according to the canon law, and the rules and regulations of your Church in Ireland, the bishop has a veto in reference to the introduction of nuns into a diocese ? No, I don't know any such thing. He had no veto in this case, but the nuns would not come without his letter. But they had a perfect right to come. Were you entitled to force them into the diocese against his wish ? I did not want to force them. Didn't you say you were determined to do everything you could to bring them-? Everything proper, Serjeant. Were not you determined to bring them against the wish of the bishop if you could ? I would be justified. Were not jou in your mind determined to bring them 240 Court of Queen's Bench (Ireland) . Cross- even against the bishop's wish? No, on the contrary, I ^fon'of recommended the nuns not to coine if they did not get the Father bishop's leave. Had you not resolved to bring them without his leave ? No, I had not resolved. Had you any expectation of getting his leave at the time you wrote those scurrilous letters about him ? He knew nothing about those letters. I wrote them in confidence to Cardinal Cullen, and to Dr. M'Donald afterwards. And to all the bishops in Ireland ? Oh, that was a long time afterwards years afterwards. It is not years after ; it is a year and a half after. Well, it was not I made them public, and I never would do it. You made them public in March, 1871 ? No, they were put into my hand in the public court here, and I was re- quired to identify them. The Lord Chief Justice : And was that the first time ? That was the first time they came before any one in public. Serjeant Armstrong : Was anything whatever made public in the public court except one letter to Dr. M'Donald about the bishop ? Yes, that referred to the letter you are after reading about traffic in the sacraments and dispensations. The whole thing was made public. But didn't you know that there was no part of your letter to Cardinal Barnabo read in court ? It could not be read. Was there any part of your letter at all which reflected on the bishop read, but the one letter written to the vicar- general, Dr. M'Donald ? That is the only one. The Lord Chief Justice : The only one what ? Reflecting on the bishop. I wrote to the vicar-general, telling him that I had written a letter reflecting on the bishop, and stating that he had had a life of traffic in sacraments and dis- pensations, and I stated that in my own defence. The Lord Chief Justice : What was the date of the letter to the vicar-general? October, 1870. When was that produced ? At the trial in December. Against whom ? It was produced against me on the trial of the action against Father Walsh. It was first read by Serjeant Armstrong in the court. He thought it would damage me in the eyes of the jury, I suppose. Serjeant Armstrong : Now that letter that you wrote to Rev. Robert O'Keeffe v. Cardinal Cullen. 241 the vicar-general was the only one that was read in Walsh's Cross- case. Now, have I read one word of that letter in this broad- ^Tof 1 " sheet ? Oh, it is all the same matter. Father It is totally different ; your excuse is that because the letter which you had written to Dr. M'Donald was read in court, you published all these things. Oh no. But it is, and I have not come to that letter at all yet. I told Dr. M'Donald to read the letter that I had sent to Cardinal Cullen and to Dr. Lynch, and to consider what he was about. When was that letter written that you are now telling us about? It was written in August, 1869. Which letter was not read in the case of the witness against Walsh at all? It was the same thing. Nor was the letter to Cardinal Barnabo read? It was read in one of the cases ; it was read in the action against Father Neary. That letter I have not approached yet. It is at the tail end of the broadsheet. I will read it now. (Counsel reads letter, dated October 15, 1870, to Dr. M'Donald.) 1 Was the letter you wrote threatening ? No ; but to deter him from publishing the suspension on me. The Lord Chief Justice : To deter him ? To deter Dr. M'Donald. I was afraid he would publish those suspensions he was sending me through Father Walsh and Father Neary. (Counsel reads) : ' If you do that I will publish the letters I wrote eighteen months ago, scandalising my own bishop ' ? On the principle that I stated before and that cannot be controverted. I defy any theologian in this court to say that the principle is unsound. Where a man is assailed, and he has no other means of protecting his character except by defaming his slanderer, he is perfectly warranted in de- faming him, and explaining what sort of character he is. The Lord Chief Justice : What do you mean by ' de- faming ' ? do you mean inventing charges ? No ; simply taking away his good name, without telling lies of him ; telling the public what sort of person he is. It was with the view of preventing Dr. M'Donald from making public the attack on me. 1 Supra, p. 151. K 242 Court of Queen? s Bench (Ireland}. Cross- Serjeant Armstrong : Was it not to depreciate the bishop "tion of ~ * n * ne e y es * ^ e P e pl e ^ -ft was after the attack had been Father made on me. Was not that your object? My object was to show the characters of the people who were endeavouring to degrade me and run away with my good name. You have said he was trafficking in sacraments for forty years ? Certainly, it is the fact. On your solemn oath give me a single instance of it. Give you a single instance ? Give me an instance. Do you mean to say an instance did not occur in my own presence ? Give an instance, sir. Didn't I tell you that I was his vicar for two years, and that over and over again Give me an instance on your oath. What do you mean by giving an instance? Give me an instance which justified you in making such a statement. I was the bishop's vicar for two years when I was parish priest of Eathdowney, and it was my duty to give dispensations in banns of marriage. If they wished to get married without publishing the banns I was directed to demand 1Z. before I issued the dispensation, and if parties came to me to seek dispensation in the publication of their marriage banns, and if they had not 1Z., my hands were tied up by the arrangement of the bishop. No matter who or what the party was, I could not relax the rule as to publication unless I received \l. for the bishop. Some of those parties had to come thirty miles in order to get a dispensation from the bishop. Is not this that you call a dispensation, a special license ? Not exactly, but it is a special license. Is not that simply dispensing with calling the banns three times ? Yes, or once. Can the bishop do it ? Yes. Was not the \l. given for granting the special license? It should not be given or required ; he had no right to re- quire it. How did you expect him to be paid? He had no right to require it at all. It was unfair to require it from a poor man. Why didn't you throw off the yoke ? He didn't extort from me. Rev. Robert O'Keeffe v. Cardinal Cullen. 243 Didn't you ever hear that he who allows oppression shares Cross- the crime ? In order to be entitled to receive anything he e ^ ( ^ 1 f" should have got authority from Rome. Father Did you know that you were acting against the law of the Church ? I was not acting against any law. Was not he acting against it ? Certainly. Didn't you do it ? I had to obey orders. Couldn't you throw up your situation? I had no situa- tion. Were you the vicar-general ? I was not. What were you ? I was vicar-forane. And then you co-operated? No, I did not; I had nothing to do with this extortion. Did you ever complain to him that he was extorting ? T did not ; I would be very sorry. You never found any fault with him ? Never. You suggested that at a time when he was unable to de- fend himself? I did not. Was he alive at the time you spoke this from the altar ? I did not wait till the breath was gone out of him, as he did in the case of a poor man. T was not the ass that put his heel on the lion. What condition of mind and body was Dr. Walsh in when you harangued the people from the altar about him. Was he alive ? Alive. Wasn't he fast declining in mind and body ? What is the date of that? March, 1871. Serjeant Armstrong, I didn't read a word of these letters to my congregation until after I gave notice to Cardinal Cullen that I would do it in my own defence if he would not remove the men that were slandering me from the Friary Chapel. Did you know that the bishop was fast declining in mind and body in March, 1871 ? He was. AYhen you spoke from the altar ? He was. Didn't you know that he was not in a state to respond to your citation ? Can't I explain ? I wrote a letter. (The Court adjourned.) H 2 244 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. (FOURTH DAT.) Thursday, May 15, 1873. At the sitting of the Court, Mr. Purcell said : ' Before my friend resumes his cross-examination, we produce the two circulars addressed to and received by Mr. O'Keeffe which have been referred to in his direct evidence, 1 inviting him to attend the election of coadjutor- bishop. The first is dated 31st August, 1871, and is in these terms. 'St. Kyran's College, Kilkenny, August 31, 1871. ' VERY REV. DEAR SIR, I forward you a copy of a letter addressed to me by his lordship the Bishop of Ossory, commanding me to convene the clergy of this diocese that is to say, all those who have a right to vote in conformity with the rescripts of His Holiness Pius VIII., dated 17th October, 1829, for the purpose of selecting the names of three ecclesiastics out of whom the Pope may appoint a coadjutor for his lordship. ' In compliance with this order, I hereby convoke the members of the Chapter and the parish priests, as above, to meet me on the day and at the place appointed by his lordship that is to say, in the cathedral, at ten o'clock a.m. on Tuesday, the 19th of next September. 'You will please attend in choral dress (biretta, surplice, and soutane), and bear in mind his lordship's directions that to each mass in the meantime all the priests in the diocese are to add the collect, secret, and post-communion of the mass of the Holy Ghost. ' Your faithful servant, 'EDWARD M'DONALD, D.D., ' Vicar-General of Ossory.' The other circular is one that was enclosed in that: it was addressed by the bishop to the vicar- general.' The Lord Chief Justice : Did the vicar-general send these to the plaintiff 9 Mr. Pur cell : He did. Mr. Purcell then read the bishop's letter or circular to Dr. M'Donald, stating that in compliance with his desire a coadjutor-bishop would be elected, and requesting Dr. M'Donald to convene the clergy for the 19th September, at the Cathedral, Kilkenny, to proceed with the election, at which Cardinal Cullen would preside. 1 Supra, p. 179. Rev. Robert O'Keeffe v. Cardinal Cullen. 245 Cross- Oross-examination of the Rev. Mr. O'Keeffe, resumed by Serjeant Armstrong. Father Were you as a priest subject to the laws, ordinances, and _ discipline of the Catholic Church ? That is to be understood as the laws, ordinances, and discipline of the Church in which I live, the Church of Ireland. And no doubt at your ordination you agreed to be bound by them and subject to them ? I promised canonical obe- dience to my bishop and his successors. And to the laws, ordinances, and discipline of the Church of Ireland ? Of course, that is the meaning of canonical obedience. Who is to decide, according to your view, whether a sus- pension is rightly pronounced or not ? Is it the suspended priest or the superior authority? The canon law on that matter is this : if the essential forms of a trial be observed, such as intimating the charge to the accused party, citing him to appear before a judge of competent jurisdiction, going through a form of investigation in his presence if these be observed and still an unjust sentence is passed upon him, or a sentence he considers unjust, he can appeal from that court to another tribunal. A sentence may be unjust though still valid, and the person may be bound to respect it until it is set aside by a higher court. But suppose the essential forms of a hearing or trial, of an investigation in court, be altogether set at nought, the sentence then is evidently not only unjust but invalid, and entitled to no respect whatever ; none but a fool would appeal from a court such as that, for it is no court. It would be the same as appealing from a sentence that a man meeting you in the street would pronounce on you. So that the party against whom the sentence is levelled is to decide, according to your view, whether the forms are ob- served or not ? He is not to decide according to my view. Is it your view that according to the canon law you were entitled to decide whether formalities were observed or not ? I will illustrate it. Is it your view, based on the canon law, that it was for you to decide, and that you were competent to decide on these questions of form? No, I don't consider I am compe- 246 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. Difference between uppcal to Pope and r< course to Pope. tent to decide on anything in that way, but I will state it again. I may illustrate it in this way. Suppose a man goes into the Recorder's Court in Dublin, and swears before the Recorder that I owe him 10Z., and the Recorder immediately grants a decree against me for 10Z., and that decree is put into the hands of the sheriff, and the sheriff sends a bailiff to levy the decree for the amount of 10Z. Do you think I am bound to pay any respect to that decree ? I was never cited before the Recorder, I never heard of the decree until the bailiff came to my house : don't you think I would expel him, or call in the police to expel him from my house? How could I appeal against a sentence like that ? Is not the man a thief coining to my house to take my property. I got no more a hearing or citation or trial than the man in question. I was rushed at without any ceremony whatever, never knew there was any complaint made against me, never knew there was any charge whatever, never knew I was accused of anything, never knew I was cited to a tribunal. Of course 1 never knew that any guilt was established against me ; I never knew anything at all of this charge ; why should I appeal ? Now I will repeat my question. According to your view of the canon law was it competent for you yourself, against whom the suspension was directed, to decide that it was in- valid for want of form ? It wa,s in my case. And because it was invalid for want of form it couldn't be the subject or ought not to be the subject of appeal ? Certainly not ; I would only be making a fool of myself. Don't talk about making yourself a fool. It wasn't a matter on which I could make an appeal. Are you aware of the distinction between an appeal to the Pope and recourse to the Pope ? Yes. What is the difference ? An appeal to the Pope is sup- posed to be made from the sentence of a judge pronounced in some court according to regular form, and recourse to the Pope is simply making application to his Holiness, which any subject in the world has a right to do, and I did that. Is there an appeal to the Pope from a suspension ex informata conscientia ? There is. Is there a recourse to him from it? There is. Now you have very much observed on the impropiiety of Rev. Robert O'Keeffe v. Cardinal Cullen. 247 making a man a judge in his own case ; you said yesterday Cross- that no man should be a judge in his own case ? Yes. tfo^of ~ Tell me on what portion of the canon law or on what Father authority do you say, that you have a right to decide that the suspension was invalid for want of form ? Upon what portion of the canon law ? Yes. Do you wish me to refer you to the book ? Yes, if you know it ? John Devoti. Devoti is a book of the highest authority in the Catholic Church. It was written by a bishop who was all his life conversant with proceedings of courts of justice in .Rome : John Devoti, Archbishop, who died in 1820. What does it purport to be? Institutions in canon law by the Archbishop of Carthage. Is it anything more than compilation of bulls and decrees and councils ? It is not by any means a compilation of bulls and decrees of councils. Has any bishop or archbishop a power to make a Power of canon ? He may have power to make a canon for his j^ k p t( own diocese. canons. I am talking of canons affecting the Church at large. He has no right to introduce a canon affecting the Church at large ; even general councils have been adopted from pro- vincial councils. Have not the canons affecting the Church been adopted from general councils ? Don't you know the words of unusual canons have been only approved of by general councils or by the Popes ? Yes. Don't they form the Corpus Juris Canonici ? Yes ; Devoti Devoti's says: ' All judgments must commence with a citation to a r! tu ^ as trial, and if that be omitted there is no force or authority rity of in the judgment ; 'that is not only the statement of Devoti, but of every canonist that ever wrote, ' for not only the civil law but natural justice forbids him to be condemned who is neither heard nor defended.' 1 Make a note of that. Natural justice forbids any one from being condemned who is neither heard nor defended. Have you ever read the Decretum Gratiani ? Do you ask me have I read the whole book, or all the volume ? I have asked my question. I have not ; it forms a large portion of the canon, law. 1 Devoti ; Institutiones Canonicae, Lib. III., Tit. V. 248 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. Have you ever read any portion of it ? I doubt if I ever opened a book of it. Do you know what it is about at all? I may have seen it in the library at Maynooth, but I doubt if I ever opened a book of it. Do you know what it treats of? It forms a large portion of the canon law. Do you know then to what time it comes ? What year of our Lord? I believe it comes down to the 13th cen- tury to about the year 1300. Did you ever read the decrees of Gregory IX. ? I say the same of that ; it forms a large portion of the canon law. Did you ever read it ? No, I don't remember having read it. Do you recollect reading iJecretalia Gregorii Noni ? No. Did you read the decrees of Boniface VIII. ? I don't remember having looked at them. Did you ever read the Clementine constitutions ? I think not. Did you ever read the constitutions of John XXII. ? I say the same ; I don't remember, I may have taken a chance look at it. But you don't say you ever read a line ? I won't under- take to pay I read a line except when I might read a quotation from it. Or the Extravag 'antes of John and his successors ? No. Having admitted you never read one of them, do they form the Corpus Juris Canonici ? Form the Corpus Juris Canonici? Can you give me any other instance, having a night to think over it, in which to your own knowledge the late Dr. Walsh carried on a scandalous traffic in the sacraments beyond the one you told about the marriages? It is specially mentioned in the letter. Don't mind letters, I want you to swear to them. The rule he had in his parish while parish priest, was that not one of his three curates would be allowed to baptize a child unless the fees were laid down. Were you the vicar when that rule was in practice? No, I was not, that was the time he was parish priest. How do you know it? I know it from the man who brought the orders from him ; I know it from a gentleman Rev. Robert O'Keeffe v. Cardinal Cullen. 249 who was a curate to him for years, and obliged to act on it for years. Is that O'Shea? The very man. Is that the man he sued in the Probate Court ? No, he is well known, the Eev. Thomas O'Shea. He was another O'Shea? He was; the Rev. Thomas O'Shea is a well-known character in Ireland. Now, any other instance of scandalous traffic in the sacraments for forty years? That was the forty years whilst he was parish priest and bishop. Do you insist that he was guilty during the whole of his episcopacy and during the time he was parish priest of a scandalous traffic in the sacraments of his Church ? Cer- tainly, if you will allow me to call that traffic. I give you the facts, it is very disagreeable to me to be obliged to state them, but I cannot keep them ; it is very painful to me. And you were vicar during two years of the scandalous traffic ? I was vicar when I was parish priest of Bath- downey. And you never remonstrated with him ? No, I took my directions from him, and the directions were, that I wasn't to give a dispensation to any one, no matter who it was that wanted it, rich or poor, high or low, unless I got a pound- note ; otherwise the party was to be referred to himself. I had no further concern in the matter. It wasn't my business to remonstrate with him on any rule he chose to make. And that is the infamous traffic in the sacraments of the Church ? No, not in the sacraments of the Church ; a regular traffic in dispensations is the word I used. The Lord Chief Justice : May I ask. was the letter that was read in court, which had been written to the gentleman that sent you the citation, the same letter that was read in the proceedings against Walsh? No; there are two letters, but they are substantially the same. But was the letter the same as that in which you made this statement as to Bishop Walsh. That was in August, 1869, and to whom was it written ? That was written to Cardinal Cullen in strict confidence. And did you write a letter to Dr. M'Donald on this sub- ject ? To Dr. M'Donald, stating that I had so written a year and a half before to Cardinal Cullen. Cross- examina- tion of Father O'Keeffe. 250 Court of Queen's Bench (Ireland). Cross- Which of the two, the letter you wrote to Cardinal e ^ooT Cullen or the letter you wrote to the vicar-general, was father published? The one to the vicar-general. That is the same gentleman that asked you to attend afterwards as a priest at the election of the bishop 'P Yes. Serjeant Armstrong : You say that you did not charge him with an infamous traffic in the sacraments ? Not while I was his vicar. At any time ? I am after explaining that. You said you charged him with a scandalous traffic in dispensations ? Yes. Did you charge him with an infamous traffic in the sacraments ? Yes. Why did you say this moment you did not ? It was when he was parish priest he was trafficking in the sacraments. I will read your correspondence (Counsel reads words of the plaintiff) '; you charge him with infamous traffic in the sacraments ? In the sacraments and dispensations. And you do still ? I state the facts on my oath. And you still charge him with infamous traffic in the sacraments ? I don't want to charge anyone with guilt Was it false ? What I stated in that letter was perfectly true. Is it false to say he carried on an infamous traffic in the sacraments ? It is literally true. Then did he carry 011 an infamous life of traffic in the sacraments for forty years ? I didn't say in the sacraments for forty years, I said in sacraments and dispensations. (Counsel reads) : ' I informed the Cardinal of the infamous life of traffic in sacraments and dispensations which Dr. Walsh has led for the last forty years.' It is literally true. Is it true he carried on an infamous traffic in the sacra- ments and dispensations for forty years 9 Yes. And you persevere in it ? I do. Have you given all the instances ? I have given you in- numerable instances ; it was the rule of his parish. Give us any instance beyond what you have mentioned ; what foundation have you for charging him with carrying on an infamous traffic in the sacraments ? It was of everyday occurrence. 1 See letter to Vicar-General, p. 151. Rev. Robert O'Keejf'e v. Cardinal Cullen. 251 What was of everyday occurrence? It was of everyday Cross- occurrence, if a child was to be baptized, and the child was ^oTof brought to the curate as they generally are, the curate had Father instructions to demand the fees from the person, and if the ee e ' person was not prepared to pay the fees, not to baptize the child, but to send the party to the parish priest. That was the rule of his parish, and I give my authority for that, the man that was for years in his parish. Have you anything else to base your charges on that he led an infamous life of traffic in the sacraments ? I only refer to that. Are the only two matters marriage and baptism ? You misunderstand the meaning of my words. Are these the only two matters on which you rely for your charge, that the bishop was an infamous trafficker in sacraments and dispensations ? Have you any other matter to allege in justification of that language beyond what you have stated ? Allow me to explain. What I have stated as to traffic in sacraments relates to the rule of his parish, while he was parish priest for thirteen or fourteen years, and that rule was that no child was to be baptized until the fee was first paid. That is as regards the traffic in sacraments. As regards the traffic in dispensations it refers to the entire time he was bishop. And about the marriages? The dispensation of the banns ; dispensation in the publication of the banns. That refers to the entire time he was bishop. The Lord Chief Justice : How long was he bishop ? About twenty-six years. Serjeant Armstrong : Beyond the instances you have given, have you any other matter to allege against your bishop ? These instances. Have you any other, sir ? I don't want to go into any- thing else. On your oath, have you, I don't want to take any com- pliment from you. Have you anything to say against the dead bishop ? No, I don't want to be saying anything. Have you anything to say to justify this language ? Have you any other instance to justify this sweeping charge of traffic in the sacraments ? I don't understand what you mean. 252 Court of Queen's Bench (Ireland), Cross- Do you think it a serious charge against a bishop, that ^lon'of" ke use< l to traffic in sacraments and dispensations ? Is this Father what you mean You'll answer my question ; attend to me. Do you think it a serious charge againt a bishop to charge him with an infamous traffic in sacraments and dispensations ? Certainly, nothing more infamous. Now you have stated two matters upon which you base that allegation, have you not ? Two rules, call them rules, on which you base your allegation ? Two rules applying to every case. Have you any other rule for anything else? No. Now you recollect the letter you wrote on 1st August, 1869, to Bishop Lynch ? > Yes. Do you recollect the substance of that letter? I do. Why did you write that letter ? Because I was informed that Bishop Lynch had spoken unfavourably of me at a retreat at Maynooth he was conducting for the clergy of the archdiocese of Dublin shortly before that. What did you hear he said of you ? Dr. O'Hanlon wrote to a friend of mine What did you hear yourself he heard of you ? That the friend understood that I was spoken of very unfavourably. In what terms? unfavourably is a very general expression. In reference to the action at law that I instituted against the bishop. What did you hear from your friend was said about you? This was what I heard ; that I was spoken of very un- favourably in reference to the action at law that I had taken against the bishop by some one conducting the retreat at Maynooth ; the persons who spoke to me thought it was the bishop, and he said the Church of Ireland had fallen into very sad times when a parish priest was found in it capable of dragging his bishop before a lay tribunal. That is what you heard ? These are the particular words. When was it you got the 550Z. from Mr. Poe ? About a fortnight after the trial. Could you fix the date of getting the money ? The case was brought to the court in June, 1869 ; I would say the first week in July the money was paid to me. 1 Supra, p. 132. Rev. Robert O'Keeffe v. Cardinal Cullen. 253 And that case of course was at an end by that pay- Cross- ment ? The case was at an end. "tfon'of " Did you understand so? Was it a settlement of the Father case ? The suit in the court was at an end. ee e ' Now you sent to the Cardinal in August, 1869, a copy of the letter you sent to the Bishop of Carlow ? Yes, when I found it wasn't Dr. Lynch that made an allusion, then I understood it was Cardinal Cullen. Then the Cardinal wrote you this letter of the 17th August, 1869. * (Letter read.) You received that? Yes. Now allow me to ask, did you consider there was any- thing off3nsive in that letter of the Cardinal to you? No. Allow me to ask you, wasn't the first action brought against the bishop for words spoken as a bishop to you ? I don't say for words he spoke as a bishop ; I don't know in what capacity he spoke the words. He was the bishop, and he abused me, that is all I know. He told you you weren't fit to have nuns under your care ? Yes. And you don't know in what capacity he spoke to you ? No ; there are the facts for you. You swear you don't know in what capacity he spoke to you? No. I know he wasn't exercising his jurisdiction. I did not impede him in the exercise of his jurisdiction. I don't believe he had any jurisdiction to slander people. Suppose, that for every reprimand given by a bishop at a conference of clergy, for every check, if } 7 ou choose fco say it, for every snub (I'll carry it that length for you), that a bishop gives a parish priest or curate, suppose I say an action was brought for that all over the country, do you think that would be practically impeding the bishop in the exercise of his jurisdiction? It would be introducing a great deal of confusion into the Church. I want your opinion ; do you think it would be impeding the bishop in the exercise of his jurisdiction ? It would be practically giving a great deal of annoyance to the bishop. Would it be practically impeding him in the exercise of his jurisdiction ? What has it to say to his jurisdiction ? It has nothing to say to his jurisdiction. 1 Supra, p. 134. 254 Court of Queen's Bench (Ireland). Cross- Then you think it wouldn't be impeding him in the exercise 6 tion'of " f bis jurisdiction. Has a bishop a right to open his mouth Father at a meeting of the clergy, and call them to account, and '_ e ' censure them for anything he thinks wrong in their conduct ? He has no such right. He could not say anything of a priest in a public assembly discreditable to the man without having given him private notice. If it was discreditable ? Certainly he should not impute anything discreditable. Could he say to a man it was discreditable of him to sue his bishop ? That depends on the nature of the suit. Now, canonically speaking, would it be discreditable for a man to sue his bishop ? A man may find it necessary to sue his bishop ; a man may do what is right and what is wrong in suing his bishop. I must know the circumstances of the case. I will put the circumstances. Suppose a man sues his bishop for finding fault with his conduct as a priest in some way or other ; suppose the priest for this brings an action, would it be any harm to say of that case that it is to be regretted that such an action is brought by a priest against his bishop ? It would depend on whether the bishop acted properly or improperly. Do you admit any authority at all in church or out of church? What authority do you admit? I was never a rebel to authority. I state in this chair, and I swear to the best of my knowledge, that I never disregarded any order from a bishop or any other superior. You would vilify him while respecting his orders ? I would not say anything that I wasn't justified in saying, nor do anything that I wasn't justified in doing. I should defend my character, I don't care whether against the bishop, or cardinal, or the Pope. I owe it to myself. It is an obliga- tion on me to preserve a good name. At the expense of everybody else ? At nobody's expense. There was an end to the case against Bishop Walsh, and you got 500Z. I ask you what necessity there was under these circumstances to write the following of your bishop to the Cardinal. (Reads letter of the 18th of August, 1869). ' Now will you tell me what was the good object or motive you had 1 Supra, p. 138. Rev. Robert O'Keejfe v. Cardinal Cullen. 255 in view in raking up these allegations against the bishop to Cross- the Cardinal ? I stated there I wished to destroy the false e3 tfof " presumption that was in the mind of Cardinal Cullen and Father . T O'Keeffe. Dr. Lynch. Wasn't the action at an end? The suit at law was at an end. Wasn't there peace between you and the bishop? I thought there was peace, but there wasn't. Did you get any lease or agreement of the land on which Callan Lodge was ? I got a letter from Mr. Smyth, of Paris, in reference to it. After you got the 550?. you gave up Callan Lodge, which was intended for the nuns ? I did. And did you not negotiate with Mr. Smyth to get out of the agreement with Mr. Smyth ? No, not at all. Was there any agreement between you and Mr. Smyth ? There was an agreement, but Mr. Smyth wrote me a letter saying that he would make everything satisfactory for the nuns. I wrote to Mr. Smyth to represent to him that Callan Lodge was in a very bad state, that it would require a large outlay of money to make it habitable. Who is Mr. Smyth ? He was a gentleman who lived in Paris ; he was the landlord of the place. And I gave him to understand that the nuns and I would expect he would make a large allowance in the rent, but that I would leave it to himself to say what allowance he would make. He wrote to say that he was under great obligations to the nuns, who took great care of him when he was ill, and that he would make every allowance. But there was no agreement between you ? Except that. At the time you wrote the letter of the 18th of August, 1869, was there any quarrel going on between you and the bishop ? There was the quarrel that I hadn't yet got the nuns, and I was expecting to get them. Wasn't the 550Z. given to you that you might return it to the nuns, and put an end to that matter altogether? It was not ; I will allow that face to be put on the transaction. It was while the correspondence was going on between me and the Cardinal that all the denunciations took place. On the 20th of August, you wrote to your own bishop ? 256 Court of Quec.n's Bench (Ireland}. Cross- (Letter read.} 1 When did you first hear that anything was of sa ^ about you by the curates ? On the 15th of August, after Father returning from Newtown. That was the first you heard of it ? That was the first I heard of it. Did you, as you state in your letter to the bishop, read the decree of the Propaganda to the people in the chapel? I did ; I read a passage from that decree. Is that a matter of authority in your Church ? Of very high authority. It was on the decision of the controversy that prevailed between the bishops at the time, as regarded the expediency of the national system. Are you by the rules of your Church bound to yield obedience to a decree of the Propaganda on a matter of doctrine or discipline ? Yes. If you heard you were spoken of disrespectfully by your curates, and that they had announced that they spoke with the bishop's authority, why did you not write him a civil letter, asking him if he had given any such authority, instead of writing such a letter as that I have read ? That is what I think I did ; at least I think so. You threaten him with an action on the 6th of September. Why didn't you write to the bishop civilly that ' so and so having been said about me by the curates, which I think very grievous, and they having stated that they spoke with your lordship's authority, I request you to say, whether they were authorised in doing so ' ? I gave the bishop to understand in that letter that all I wanted was to remove the curates. That was your requisition ? That was all I wanted. To turn them out at once ? To turn them out at once, as a matter of course. Did you expect they would undergo a trial or get notice ? No, it is not usual to give notice to curates. The bishop removes them at his discretion from one place to another. So that the curates would be removed and condemned without a trial? I didn't want them to be condemned. It is no condemnation to remove a curate from one parish to another. 1 Supra, p. 1 40. Rev. Robert O'Keeffe v. Cardinal Cullen. 257 Wasn't your requisition to remove them because they Cross- had slandered you? They had slandered me, and I said *Q{~ ' they stated they did it by your authority, and call on you to Father IT , O'Keeffe. remove them. If they were to be removed for slander, would it not be just to ask him to ascertain whether they had slandered you ? Did I not state they slandered me. There is not a word in your letter about a previous investigation ? Of course it was understood. "What was understood? One reason why I asked the bishop to remove them was that they had denounced me, and of course the bishop should inquire whether they had before he removed them at all. Have you not told me they wouldn't be entitled to any trial ? That is the bishop's affair. A curate is not entitled Position of to any explanation or information from the bishop, because cumtes - he is removable at the bishop's own will. I think the bishop would act an improper part if he did not inquire and learn whether these parties were guilty of the conduct I alleged against them. And would he give them notice ? That is his own affair. I made a distinct charge against them, and it was the duty of the bishop to inquire into the nature of that charge and its truth. Do you think he ought to investigate the matter without any notice to them of what they were charged with ? I think it would be improper to investigate a matter in which it was alleged they were guilty of misconduct, without notice to them. Then you think he ought to give them notice ? I think it was the duty of the bishop, when he received the letter, to investigate the case, and ascertain whether the curates were guilty of the misconduct I imputed to them, or not. Do you think it was his duty to give notice to them ?- Certainly. And investigate the charge ? Certainly, because I charged them with guilt. Was it becoming of you to apprise him in the same letter of your intention to bring the whole matter into a court of law? I told him I wouldn't bring it if he removed the s 258 Court of Queen's Bench (Ireland) . Cross- examina- tion of Father O'Keeffe. Bishop of Ossory a suffragan bishop of Arch- bishop ol Dublin. Axithority of metro- politan bishop. curates, because I wanted to be in peace, and I could not live in peace with these two curates. When did they begin that practice of going away for several hours without telling you ? It was an old practice of Father Walsh. It was necessarily a new one for Father Neary, as he had been only ten or twelve days in the parish. How long was Father Walsh there ? Some years. And Father Neary, how long? About ten or twelve days. And will you swear that during those ten or twelve days a novice in the place went without your leave 9 He did. You swear that? Yes. And stayed away without your leave ? Yes. It was an old practice of Father Walsh ? It was. Did you ever complain to the bishop about him ? No ; I am not fond of making complaints. You did not tell him the facts ? I did not. You sent a copy of that letter to the Cardinal ? Yes. Will you tell me what business you had to apply to the Cardinal at that time? While the matter was unsettled between Dr. Walsh and me, the Cardinal had formed an un- favourable opinion of me, and I sent the letter, wishing him to understand that when a bishop and priest quarrel it is not a matter of course that the bishop is right and the priest wrong. He came to that conclusion all at once with- out any call. Is the Bishop of Ossory a suffragan bishop of the Arch- bishop of Dublin ? Yes. The Archbishop of Dublin is Metropolitan in your Church ? Yes. And would you have a right of appeal to him from any order of your own bishop ? Oh ! Would you according to your views of the canon law ? It is not the practice at present. Would you have a right of appeal to the Metropolitan from an order of your bishop ? It is not the practice. No matter ; would you have it ? Well, I consider not. The Metropolitan does not exercise jurisdiction, at least in the Irish Church, except on visitations, and they have been entirely given up. Therefore if the Archbishop of Dublin is to interfere, it Rev. Robert CfKeeffe v. Cardinal Cullen. 259 must be from some special authority, and not as Metro- CTOBS- politan ? I did not want him to interfere. *m~ Is that your answer ? I did not want him to interfere in Father any official way. I wanted him to interfere as a friend in the interests of religion. You have told us you could not appeal to him as Metro- politan ? But I could appeal to him as a man interested in religion. Suppose you had left the matter to his decision, must it be by virtue of some special authority vested in him? I didn't want Suppose it to be, for argument's sake ? Suppose I left the matter for his decision ? Suppose you submitted to him to decide whether the sus- pension ex informata conscientia was binding on you or not, must it not have been upon the notion that he had some special authority as Metropolitan? He would not have any none. I am satisfied. Then the Cardinal having received your letter of the 20th August, 1869, sending him a copy of that pleasant letter threatening more law, replies on the 21st. Here is his answer (reading it). 1 Do you agree with him when he says that contentions in ecclesiastical matters brought before lay tribunals occasion much scandal ? I do very fully. You accepted that letter in the spirit in which it was written ? Yes. Having received this letter from the Cardinal on the 23rd, you wrote this answer ? Yes. (Counsel reads letter of 23rd August, 1869.) 2 ' I tell you, moreover, the cause of all this was the un- pleasant position I was placed in.' Explain that. The cause of the unpleasant position I was placed in. I was laying out their money (the nuns' money) for eight or nine months, with the knowledge of Dr. Walsh, understanding that there would be no difficulty or objection made to their coming. And then at the end of that time he asked me, ' Why did you lay out the money ? ' But then you had 550L in your pocket to pay it back ? 1 Supra, p. 141. 2 Supra, p. 141. s 2 260 Court of Queen's Bench (Ireland) . Cross- examina- tion of Father O'Keeffe. Not at that time. That was the unpleasant position I was placed in. Was it not your darling object at all times to get the nuns there ? It was. Whether the bishop liked it or not? I thought he would like it. If Cardinal Cullen told him that the nuns might come, there would be no second opinion about it. (Counsel then read the Cardinal's letter of 28th August, 1869, 1 the Cardinal's letter of the 31st August, 2 and plain- tiff's letter of the 1st September.) 3 Were you sincere in saying in that letter of the 1st September, that you would withdraw all demands for the re- moval of the curates or anything else? Perfectly sincere. It conveyed your real sentiments ? Perfectly sincere. You had no underhand object at all ? No underhand object, but to try and secure peace and charity. Had you it in your mind that by making that statement you would coax him to your view about the nuns ? I did ex- pect, as a matter of course, that the nuns would be admitted to Callan after making that apology. One word of that is not stated on the face of the apology ? It was not my duty to state it on it. If I put any con- ditions of that kind it would make the apology worthless. You had it in your mind ? Yes. It was your object ? Yes, but I did not want to coerce the bishop. Didn't you mean by ( anything else,' the suggestion about the nuns? Yes. Now, sir, you wrote to the Cardinal again on the 14th September. In the meantime, between the writing of that letter of the 3rd September, which I have read, and before you wrote to the Cardinal on the 14th, did you apply to the bishop to give his consent about the nuns ? Yes ; on the 6th I left home for Dublin, and spent a week at Miltown Park, and then I returned home. I thought everything was done that could be expected, and I sent Dr. Byan, of Callan, to Dr. M'Donald, to ask him in what way the bishop would wish to be applied to for his consent to let the nuns come to Callan, and I thought it would be given as a matter of course. 1 Supra, p. 142. 2 Supra, p. 142. 3 See p. 421. Rev. Robert O'Keeffe v. Cardinal Cullen. 261 The Lord Chief Justice : On what date was that ? I think Cross- on the 12th. (Counsel read letter of 14th September, 1869.) l e *^~ Didn't you there set up the horns of opposition ? No. Father Didn't you raise the question ? I did not raise a ques- tion, but stated a fact. That they could make you chaplain without his permis- sion ? So they could. To give masses without the special approbation of Dr. Walsh? Yes. How did you receive from the Propaganda a letter of privilege ? I received it through a friend of my own. Was it by word of mouth ? No. Show me any authority of the Propaganda? It is at home in my desk. I would like to see it. That was your view, that you were entitled, without the approbation of the bishop, to have an oratory in the chapel, and say masses there ? Yes. Against the wish of the bishop? I did not want his consent. I had the consent of a higher authority. You took advice upon the matter from two canonists ? Yes. And they were of opinion, that without any approbation from your bishop, you might do so under this authority ? 1 had a higher approbation. What I only want to know is that that was your view. Now, sir, didn't you revive the subject of contentions between yourself and the bishop, namely, the getting of the nuns there ? Sure that was the whole object ; it was revived. The bishop said he would never consent, and you sup- posed you could have them in spite of him ? No, I don't want to say that. I thought that having done all the Car- dinal recommended me to do, he would recommend to the bishop everything to be done. Did you ask him to do that ? Your letter does not sug- gest that. The Cardinal gave me to understand that if I did all these things How ? is it by letter ? By letter he said it would lead to a happy issue, and establish peace between the bishop and myself. To have your own way, and the nuns, in spite of him ? 1 Supra, p. 143. 262 Court of Queen's Bench (Ireland). Cross- I did not want my own way, but to have the right and SSrf" Proper done. Father Now we will assume, Father O'Keeffe, that the grown - _ e< up members of a family suppose a father and his grown- up sons, cannot agree together, or live in the same house in peace, do you think it would be unchristian or un- becoming to separate peaceably? I think it would be good advice. Hadn't you advised it in some cases yourself? I have offered that advice. It was on that principle I wished to have the curates removed, because we could not live peaceably together. I will show you that they were removed at your instance, and that then you were worse than ever. We have now got your speculative opinion as to people not living together in peace. Had you a difference with the bishop about the introduction of the nuns ? Is that not what we were fighting about all through? Answer the question. Had you a difference about the introduction of the nuns ? Yes. It is that which appears in all your letters. Have you a copy of the letter you wrote to the Cardinal Barnabo on the 28th November, 1869 ? Yes ; I have a copy at home. (Counsel then read letter of 28th November, 1869, from plaintiff to Cardinal Barnabo.) 1 You had an approbation that overruled the bishop ? Yes, superior to the bishop. Overruling the bishop's authority ? Not overruling it, but superior to it. Didn't it overrule it ? Don't you know the bishop would not allow the nuns to come if he could help it ? Answer the question ; I am entitled to it. I am giving an answer. Say yes or no. I got an approbation from Propaganda long before 1 knew the bishop would make any objection to the nuns coming months before I knew he would make any objections. I applied to the proper quarter, and got it. And wrote youi letter in spite of the bishop ? I did not want to do anything in spite of the bishop. 1 Supra, p. 146. Rev. Robert O'Keejfe v. Cardinal Cullen. 263 (Counsel then read letter of 20th September, 1869, from Cross- Cardinal Cullen to the Eev. E. O'Keeffe.) 1 Ton 1 "?" Don't you believe with the Cardinal about the privileged Father altar ? I did not relj upon the privileged altar. Do you think there was anything improper in his sugges- tion about resigning, under all the circumstances ? I say it was something unreasonable. You would not agree with Cardinal Cullen ? I was will- ing to agree with every one. Provided you got your own way ? No, I did not want niy own way; I wanted what was reasonable, right, and proper. I was led to understand for ten months that the bishop would make no objection, and then when the money was paid out he did make objections. You have got all the money for it in your pocket like a wise man. Now did you consider the Cardinal's suggestion of a friendly kind ? I thought it most unreasonable. Did you think it was made in a kindly or friendly spirit ? (No answer.} Answer the question. I could not tell you. You decline to answer. (Counsel then read letter of the 21st September, 1869, from plaintiff to Cardinal Cullen.) 2 What canonical rights was he denying you ? He was refusing permission for the nuns coming to Callan without just reason. They had a right to come to Callan. My people had a right to the benefit of the nuns in Callan, and the bishop was therefore denying those ladies and my people their canonical rights. Do you consider that a serious charge against a bishop ? It is no charge at all. He would not give his reasons for refusing. I asked him by letter to do so. Where is the letter ? In the bishop's library, I suppose. Have you a copy of it? I will allow you to give any copy of a letter calling upon the bishop to state his reasons for not giving you the benefit of the nuns? Didn't I state that I called and asked him to give his reasons in writ- ing? That is all apologised for. I wanted a written answer. You say in this letter that you will use every proper 1 Supra, p. 144. * Supra, p. 145. Court of Queen's Bench (Ireland} . Cross- examina- tion of Father O'Keeffe. means to enforce your rights ? That is, to enforce your rights against the bishop. Why not, by proper means. (Counsel reads above letter) : ' I will use every proper means of enforcing them.' Now you have the money in your pocket, did you ever take any steps to enforce their coming there? I could enforce them only by proper means ; the proper means were to require the bishop to state in writing the objections that he had to the coming of the nuns to Callan, in order that I might forward a document to Rome 'enclosing his reasons and making my own comment upon them, and then the question would be settled by the council of Propaganda, or Cardinal Barnabo, in Rome. That was the very reason for asking him to state his reasons. Did you ever, after getting the 550Z., ask him to state his reasons ? I had humbled myself sufficiently. You didn't humble yourself by getting the money ? That was raising myself. Did you ever ask him ? No ; I did not. Then you announce to the Cardinal that you will use every proper means of enforcing your rights ? Yes. Then you didn't ask the bishop to state his reasons after you got the money ? No. What would be proper means of enforcing them ? The proper means would be for me to have recourse to Rome, to make a visit to Rome, and to explain my case there to Barnabo, or some one in authority in Rome, when I would not be furnished with any paper that would enable me to ex- plain it by writing ; that was what I meant to do. After you got the 550Z. you never asked for any written statement ? There was no use. How did you know there was no use ? Were you not condemning the bishop behind his back ? I was positively refused. Did you ever apply ? I was not to be writing every day. You say, ' Dr. Walsh has brought great odium upon him- self by his opposition to the coming of the nuns, as they are all from the diocese originally.' What was he .spoken about throughout the diocese for? For his opposition to the coming of the nuns to Callan. Have you the letter which you received from Cardinal Barnabo ? Yes, the letter is at home in Callan. Rev. Robert O'Keeffe v. Cardinal Cullen. 265 Mr. Purcell : It is here, and it is in evidence. Cross- Serjeant Armstrong : You considered when the first action e3 ^ 1 ^ " against the bishop was settled that peace was restored? Father I thought so; I was led to think that by the bishop's friends. And you expected that he would have allowed the nuns to come there after that ? I had fully expected it. And you found that he would not? I found that he would not. And you never asked him to state his reasons in writing ? I never went near himself. I went in to his attorney to remonstrate against his putting the curates into the posses- sion of Callan Lodge. You have a copy of your candid letter to Cardinal Barnabo. (Counsel reads plaintiff's letter to Cardinal Barnabo of 28th November, 1869. ) J Bad as the curates were, you represented to Cardinal Barnabo that they would do well in your absence ? Of course they should do the duties. * You found no fault with them at all ? It was not my business. You don't say a word in that about the former action against the bishop or its settlement. Would not any ordinary man, reading that letter, think that the bishop had recently before you wrote that letter refused to state his reasons in writing for not allowing the nuns to come ? There is nothing in the letter to show that it was of very recent oc- currence. Do you think it is a candid letter ? It is a very candid letter. Do you think there is no suppression in it ? No suppres- sion. I stated what I thought was a sufficient reason that I should be allowed to go to Eome ; then I would state everything connected with the whole business. That letter is dated the 28th . of November ? Yes, the first Sunday in Advent. When did you send your instructions to your attorney for your first action after that ? I believe about three weeks after that. When did you send instructions to your attorney for the action ? I can't say positively. 1 Supra, p. 146. 266 Court of Queen's Bench (Ireland). Cross- On your oatli, were not they gone when you wrote that *3JJf letter? Were they not gone, eh? We had some corre- Father spondence I think on the subject. 'f 9 ' Had you instructed him to bring the action against Dr. Walsh against the bishop himself Dr. Walsh, which ended in the nonsuit? I cannot say positively. You must find out for me. I think we had correspon- dence on the subject. Then you cannot say whether you instructed your attorney to sue the bishop before you wrote the letter of the 28th of November, 1869 ? I won't undertake to say. But you know the writ issued on December the 18th? So it appears. Before you got any answer from Rome ? So it appears. You didn't write a second time to Rome ? No ; I did not. Will you tell me what had occurred between your sincere apology to your bishop on the 1st of September, 1869, 1 which was the day on which you made the apology and ex- pressed so much regret for what had happened, and for suing him at all, which you said was sincere what occurred between that and the institution of the action on the 18th of Decem- ber, that induced you to bring that action ? This circum- stance, that I despaired of his consenting to the coming of the nuns. That was the only thing I had in view and was concerned in at all, for I felt myself in a most unpleasant position after laying out their money. Then you brought the action in revenge for the bishop not agreeing to let the nuns come ? Was not the action for denunciation. Did you bring it in revenge -I am talking about the condition of your mind ? I never did anything in revenge. Was it in the hope of coercing him to consent to the nuns coming that you brought the action on your oath ? If the bishop Answer the question, sir. I am entitled to an answer. No. But the thing that had occurred between that period and the bringing of the action, was his refusal to let the nuns come. On the 1st of September was the full apology? Yes. And expression of regret ? Yes. 1 Seep. 421. Rev. Robert O'Keeffe v. Cardinal Cullen. 267 Sincerely made ? Yes. Cross- The withdrawal of every demand for the nuns, and for ex t ^' of the removal of the curates ? I saw that I was deceived and "Father entrapped. 'f!5 Who deceived you ? His Eminence. His Eminence deceived you ? He did. And in revenge you brought your action? Not in revenge; I never did anything in revenge (the witness laughed) . Do you call that a white laugh or a black laugh ? Am I bound to answer that question ? I confess I don't like a man who is always laughing in a serious case like this I don't like the look of it. Well, I won't laugh, to satisfy you. Was not that the motive of the action, because his Emi- nence had deceived you ? In what had he deceived you ? He deceived me inasmuch as he said that it would lead to a happy issue and establish peace between the bishop and me, and it didn't do that ; and after making that apology he proposed to me to leave my parish to give up my parish that was the happy issue it led to ; to ask me to resign my parish. And in your apology l you withdrew the claim about the nuns ? 1 did. And you had the mental reservation of intending to re- agitate it ? Not re-agitate it. Well, to reserve it ? I had the expectation that it would be acceded. Why don't you state it expressly ? That would not be my business. It would defeat the whole thing, if I spoke in a positive way or made it a condition that the nuns should come ; that would be no apology at all. On the contrary I gave the Cardinal and Dr. Walsh to understand that I would make no demand at all. Do you mean by the letters ? I told them plainly. By the letters ? Yes ; I withdrew every demand. But you did not intend in your mind to withdraw them ? I did fully ; there was the deceit, I expected Who was the deceiver ? I expected that my withdrawal would result in a very happy issue, and it resulted in a very 1 See p. 421. 268 Court of Queen's Bench (Ireland). Cross- unhappy one for me to call on me to abandon my examina- > tionof Parish. Father Is this what you hoped for and interpreted as a happy ' issue, that the bishop would consent to the nuns coming there ? That the Cardinal would advise the bishop, after I had made the apology and humbled myself in a way that no man ever would before. Surely you felt you were bound to make that apology ? I did not. You thouglit the bishop was entitled to it ? He was not entitled to it. You degraded yourself by it? I did not degrade my- self by it. I did it at the desire of Cardinal Cullen, and I stated so, and I did not think it dishonourable to do what the Cardinal said. But you never stated in any letter between the 1st of September and the 15th of December, that you were in the expectation that the nuns would have been permitted to come there ? Oh, it would have defeated the whole thing if I made that a condition. Consequently you suppressed it ? I didn't suppress it. Did you think it was right to deal with them and not let them know your real mind ? The Cardinal led me to ex- pect that a happy issue would result from my making a sub- mission to his lordship, and I told him that I would make any submission he pleased, and if the apology was not per- fectly satisfactory he might introduce any phrase he liked into it. In your apology you withdrew every demand about the curates and the nuns? I did. Mr. Purcell : That was introduced by the Cardinal. Serjeant Armstrong : It is in his own handwriting. I did. And though you withdrew it, you had it in your mind all the time ? I expected that it would be conceded without my demanding it. That the Cardinal would tell Dr. Walsh to agree to the nuns coming, and because that was not done you brought your action on the 15th December? No; if that had been done the action would never have been heard of. But I found I was entrapped and deceived. Rev. Robert O'Keeffe v. Cardinal Cullen. 269 Entrapped and deceived ? Yes. Cross- By the Cardinal ? Certainly. "SStf In October, 1870, you got the suspension signed by the Father vicar-general, and you made this reply (reads the plaintiff's reply). 1 Where did you get that quotation at the end of your letter ? From Shakespeare. That is the letter you thought proper to send to the vicar- general ? Very well. Do you think that under the circumstances a becoming letter ? I do, certainly. He replied to you in October, 1870, but allow me to ask you why didn't you appeal from that suspension ? What do you mea.n by suspension ? Can I ask the Serjeant a question, iny lord ? Will you tell me why you did not appeal from it ? Will you tell me what is a suspension ? I won't. I think you won't. Well, T will tell you if you like ; it is what was served upon you four times. A suspension is what was served upon me ? Would you call a plate of meat, Serjeant, a suspension if it was served upon me ? Oh, you are a wit. You have asked me what my idea of a suspension is ; I have told you practically. You con- sider that humour. This is a very jocular case in your mind. If anything served on a man be a suspension, sus- pensions are very numerous. Do you think, if you were trying, you could write a more impertinent letter ? I say that letter was perfectly justifiable. Do you think it a very impertinent letter ? I think it a very proper letter. Do you think it a very insolent letter? I think it a very proper letter. You may think a very insolent thing very proper. Under circumstances. Do you consider it an impertinent, insolent letter, though you may think it proper at the same time? Not by any means impertinent, but quite pertinent. And not insolent ? Quite pertinent and quite proper. And not insolent ? Not insolent, but quite pertinent and quite proper. 1 Supra, p. 150. 270 Court of Queen's Bench (Ireland). Cross- (Counsel reads letter of Dr. M'Donald to plaintiff, re- tion > of a " peating the suspension, and plaintiff's reply to that letter.) ' Father What did you mean by f physical resistance ' in that letter ? ' I was afraid that Dr. M'Donald contemplated at that time the publication of those documents. Was it to fight them with your fists, or get out a mob in the streets? I was apprehending that Dr. M'Donald was about to create a disturbance in Callan by the publication of those documents, and I wanted by all means to deter him from resorting to such a course. What did you mean by ' physical resistance ' ? Any insolence that he might offer, any violence he might offer, I didn't care of what character. Did you apprehend his bringing a mob ? I apprehended his exciting a great disturbance in Callan by his publication of these papers. Did you apprehend his bringing any violence to bear upon you to expel him? I considered it would come to that. And you announced to him that you would resent that by force ? I told him privately. 'Juxta moderamen inculpatse tutelse.' What is your interpretation of that passage ? It is a rule of morals. Put it into English. ' Within the moderation of blameless defence.' That is a rule of morals, Serjeant. A man is not to use more force than is necessary to repel aggression. Did you mean to convey in this letter, that you would print and publish these charges against your bishop if they published this suspension against yourself? If they attempted to take away my character, or use violence of any sort. If they suspended you ? If they suspended me in a law- less manner ; suspended me by violence. If they had any charge against me they ought to cite me to appear before them, and I am sure I am not the man then to object. You say a dying man may exclaim ' Save me from, my friends.' Who was the dying man ? The man referred to there was the bishop, and I wanted to prevent Dr. M'Donald from doing anything that would bring disgrace upon the 1 Supra, p. 151. Rev. Robert O'Keeffe v. Cardinal Cullen. 271 bisliop and bring disgrace upon myself. I wanted to deter Cross- him from publication. ^of" To put the screw upon him, by threatening that you Father would publish these things of the bishop ? I told him so to deter him from using lawless violence. As a Christian clergyman, do you think that was a right course to pursue? I adhere to every line of that letter. It was of course open to me to try and get protection for my character. (Counsel read Dr. McDonald's letter to plaintiff of 16th November, 1870.) > You received with that letter a citation ? 2 You complain greatly of the unfairness of being tried without a citation. Why didn't you obey the citation you got to go into the bishop's court ? After being hanged twice, to go into a trial ! Didn't you deny the reality of the two suspensions already served on you : didn't you deny their validity ? Was there ever anything so monstrous, my lord. A man to be con- demned twice ! Give your evidence like an ordinary man. There is no necessity for this appeal to the Court. Answer my questions. Didn't you deny the validity of the two suspensions? Of course I did. Didn't you receive a citation to go to the bishop's court at Kilkenny ? I did. Why didn't you go ? Didn't he condemn me twice. The man had no authority to cite me. What were the documents enclosed in this letter of Dr. M'Donald to you ? There was a document I think from the bishop directed to Dr. M'Donald, giving him authority to inflict censures. Here are the two documents that were inclosed in the vicar-general's letter. You say he had no authority to issue a citation ? He had no authority to issue a citation in this case. In any other case, he would, I suppose ? In ordinary cases. You have been talking of men being judges in their own cause ; who was the authority to decide whether the vicar- general, acting under the authority of the bishop, had power to cite ? The canon law. 1 Supra, p. 153. 2 Supra, p. 154. Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. You are to decide it outside court, and not to appeal to bishop, pope, or anybody else ? The canon law. (Authority from Bishop Walsh to Dr. M'Donald, vicar- general, dated Kilkenny, 25th October, 18 70, ' and the citation from Dr. M'Donald, dated 16th November, 1870, 2 read.) Now, sir, you had denied the validity of the previous papers that you got, we will not call them suspensions at all, why didn't you answer that citation if you wanted an ex- planation to be heard? Why didn't T answer that cita- tion? Yes, why didn't you go ? why didn't you answer ? I did answer. Did you appear ? In ten days^ before the time for the appearance I was served with a suspension. Did you appear in obedience to that citation? No, I made no appearance. The Lord Chief Justice : Is this the authority, * We em- power you in respect of all cases to adjudicate in criminal cases ' ? That purposes to be the authority. Was it sent to you ? It was sent to me. What I understand is, that the previous papers were sent in punishment of what was done. Therefore he was punished first. You must explain that. Serjeant Armstrong : He had been perhaps well advised not to recognize these first papers. Now we have the citation. The Lord Chief Justice to Witness : What do you mean by that answer? I mean that before the day named for me to appear at Kilkenny, the 19th December Serjeant Armstrong : He says the reason he did not appear was because he was suspended in the meantime. (Letter of the plaintiff, dated Callan, 20th November, 1870, to Dr. M'Donald, read.) 3 What were you going into retreat for? Going into retreat because Cardinal Cullen gave me to understand that if I went into retreat and made an apology, that a happy issue would result. That is by his letter? Cardinal Cullen's letter. He recommended me. Now, sir, does not that letter state your reason for not 1 Supra, p. 155. Supra, p. 154. * Supra, p. 155. Rev. Robert O'Keeffe v. Cardinal Cullen. 273 appearing in answer to the citation? Did not that letter Cross- amount to an absolute refusal ? I had not my mind made up e *^of" at the time. At the same time it was not my intention to Father . i ,. O'Keeffe. take no notice. _ Would you consider it reasonable on the part of Dr. M'Donald to infer from the whole tone of that letter that you would decline to appear on the citation ? Well, he might, I think, reasonably infer it. (Letter dated 10th December, 1870, from Dr. M'Donald to plaintiff, read. 1 ) You received that letter ? Yes. (Letter from Bishop Walsh to plaintiff, dated llth January, 1871, read. 2 ) (Translation of suspension, dated llth January, 1871, read. 3 ) You received that ? Yes. And on a post-card, a half-penny post-card, open to the Father world, you sent this answer back to the bishop ? ' Callan, 13th January, 1871. The Rev. Mr. O'Keeffe can hold no Walsh. private correspondence with a man who was capable of throwing his private and confidential letter on the table of a public court'? Yes. You compared your vicar-general to an ape, and your own bishop to an ass, and charged him with all sorts of delinquencies ; you wrote the letters that you did ; I ask you now do you think you were fit to continue one hour a priest in any church ; on your oath ? Do I consider I was fit to continue a priest in any Christian church? Do I consider I had done anything ? Do you consider yourself fit to be a priest in any church on earth ? I consider I did nothing wrong. Do you consider yourself fit to be a priest for one hour in any Christian church ? I consider that only a proper reply. Do you think yourself, after what you have admitted, worthy of being a priest for one hour, after having calum- niated in your audacity by sending that post- card to the bishop ? Do you consider yourself worthy of being a priest ? Do you, sir ? It would be rather an unscriptural expression to say 1 was worthy of being a priest, because, Serjeant, after we have done all we ought to do, we are still useless servants, 1 Supra, p. 157. 2 Supra, p. 158. * Supra, p. 158. T 274 Court of Queen's Bench (Ireland) . Cross- examina- tion of Father O'Keeffe. Suspension Ex Infor- mata Con- scientia. Not appli- cable to a parish priest. Nature of this sus- pension. Answer my question, sir. Do you consider yourself worthy of remaining a priest for one hour ? I do. That is an answer : now state your reason ? I do not consider that I did say anything at all improper in sending the answer that I did send to this ridiculous paper that was served on me. I sent that answer. No one has a right to say that he is worthy to be a priest, because even after we have done all that we should have done, we are still useless servants. Do you think you are a disgrace to the priesthood ? I do not. That is an answer. Is this your opinion as what we will assume you to be a canonist, as you said you are. Is it your opinion as a canonist that a bishop has no power to suspend a parish priest ex informata conscientia ? No. What do you mean by no ? I give you the shortest answer I can. In your opinion a bishop has no power to suspend a parish priest ex informata conscientia ? No power. Can you give me any authority for that ? I can give you the right authority the Church. Read to me your authority for the position that a bishop has no power of suspension ex informata conscientia over a parish priest. The Lord Chief Justice : And before you do so, explain to me what that means. What means { ex informata consci- entia ? ' What is it ? It is the censure that is resorted to in some cases depriving a priest of the free exercise of his order and of his office. It is not applicable to the case of a parish priest at all. It can only deprive a priest of the exercise of his order and his office, but it does not deprive a priest of the exercise of the function of a parish priest, or deprive him of his parish, and it is only applicable to the case of a class of clergy who have taken vows of absolute, or what we call blind obedience, to be guided in every particular by the will of their superior. If the superior tells them to black his shoes, or to do any menial office, it is their duty to do it. But the secular clergy do not owe any such kind of obedience to that superior, but only canonical obedience; and they do not make vows giving up their own will as the regulars do, to be Rev. Robert O'Keeffe v. Cardinal Cullen. 275 guided by the arbitrary will of a superior. But with all Cross- those clergy it is in force. 'Hflrf' 8erjeant Armstrong : ' Ex informata conscientia ' means the Father bishop's informed conscience ? The informed conscience. Of a bishop ? Not a bishop, of a superior. Has a bishop any power at all to issue a suspension ex informata conscientia ? Not in the case of the secular clergy. If he be a superior of friars he can, under proper circum- stances. Show me your authority. I will. The fourth general Canon of council of Lateran was held in Rome, and it was the most Q 0urth i celebrated council ever held in the Latin Church. The canon Council of of that council is expressed in the following terms. Lateran. The Lord Chief Justice : What is the number of this article ? The eighth canon of this great council, the fourth canon of Lateran. Serjeant Armstrong : Mention the name of the book ? Dupin's New History of Ecclesiastical Writers, page 450, second volume. The eighth canon regulates the process which ought to be maintained in the accusation of ecclesias- As to pro- tics. ' It is therein declared that it is not to be tolerated to ceec ! m f s Jl^ftlllSu accuse them lightly ; that they ought to be present when clergy. they are informed against, unless they absent themselves out of contumacy ; that they ought to be told the heads of the informations against them, and to know their accusers, and to be admitted to put in their replication and lawful exceptions.' It is said that * there are three ways of proceeding against a criminal, viz., by way of accusation, by denunciation, and by imposition ; that the accusation ought to be ushered in by the complaint of the accuser, the denunciation by a charitable admonition, and the imposition by common report. That yet it was not requisite to observe this method pre- cisely with respect to regulars, and that one might divest them of their office whenever it was expedient without observing all these formalities.' That is your authority ? There is no higher authority in canon law. What has that to do with the matter at all ? As I read it certain forms may be dispensed with in the case of regulars." Is there a word about ex informata conscientia ? Because Court of Queen's Bench (Ireland) . Cross- examina- tion of Father O'Keeffe. Council of Trent. that is the form of proceeding that dispenses with these formalities ; that is the form of proceeding to pronounce guilt without giving a man a hearing ; that is the form for persons who have made vows of absolute obedience. Have you given me authority ? I have given you, I think, that of the Church. I give you authority that the council of Trent re-enacted. You rely on the decree of the Lateran council as showing that a bishop cannot suspend a parish priest ex informata conscientia ? Without giving him a trial. Is that your authority ? If you want other authorities I will give them. The general council of Trent re-enacted that canon. Give me any other authority? The general council of Trent says : c A person therefore ought to be present who is in- formed against unless he absents himself through contempt.' The same thing over and over again. Then you rely on that as showing that the bishop cannot suspend a parish priest ex informata conscientia ? I do. Have you any other authority? Sure I have every authority. Have you any other authority in canon law ? Every man that ever wrote on canon law. Can you point out any other? Every man that ever wrote on canon law. Can't you refer to them ? * All judgments should com- mence with a citation to a trial, and if that be omitted, there is no force or authority in the judgment. For not only does the civil law, but moreover natural justice, forbids any one to be condemned who is not heard or defended.' l That does not apply to regulars, for they give up their rights, but a parish priest does not give up his rights. From what is that ? From Cabassutius. * A sentence passed against a person who is in no way cited, is null by the law itself.' 2 Is there anything there treating of this class of suspen- sion at all ? Don't you know there is not ? He is treating of all suspensions. This is applicable to all suspensions, save and except in the case of regulars, as I have read to you 1 Devoti : Institutiones Canonicae, Lib. iii., Tit. v. 2 Juris Canonici Theoria et Praxis (Cabassutius), Lib. v., cap. x., xix. Rev. Robert O'Kee/e v. Cardinal Cullen. 277 from the general council of Lateran, that they can be sus- Cross- pended without all these formalities, but the seculars cannot. ^ 1 "f " There is nothing better established. Father Then I understand you to say, that a citation must pre- cede any judgment of suspension, except in the case of a regular? Yes; it does not apply at all. Anything that violates natural justice must be ineffectual. Natural justice cannot be violated by anything. If a parish priest is cited to attend his bishop's court, citation and the citation apprised him of a charge made against him, necessary and apprises him also that in his absence the charge will case of be proceeded 011 and judgment given, and if he does not choose to attend, is it contrary to natural justice to proceed against him ? Do you put in whether the bishop is competent or not to proceed? The bishop was not competent in my case. It was a papal case in which he was proceeding, an excommu- t j on of nication reserved to the Pope, and he should not have in- Bishop, terfered in it at all without authority from the Pope. The Lord Chief Justice : That is the offence alleged ? The offence charged was that I took an action at law against an ecclesiastic. Serjeant Armstrong : I am on the general doctrine of the Church applicable to all cases. Assume the case of a bishop who has jurisdiction over the subject matter, and that his vicar- general, by his authority, cites a parish priest for an alleged offence, and states that if he does not attend and obey the citation by his presence, the case will be pursued and judgment given in his absence. If after all that intimation he does not appear, is there any- thing contrary to natural justice in investigating the case, and giving judgment against him? Certainly not, that I can see. It is the proper way to proceed. Assuming that the bishop is competent to hear the case, and that he authorizes the vicar-general to hear and determine it, and that the vicar-general issues a citation to the party con- cerned, defining the offence, and citing him to appear and defend himself before them, and stating further that if he does not appear the case will be proceeded with in his absence : then if he does not appear, I think the bishop or vicar-general is competent to go into it, to examine witnesses arid ascertain the degree of guilt. 278 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. Incom- petency of bishop. Papal jurisdic- tion in Ireland. Extent of the rule against suing ec- clesiastics. The Lord Chief Justice : What do you say is reserved ? He was not competent, my lord. On what ground is it that he had no jurisdiction to do these things ? Because he was interfering in the law of a higher superior. If I did wrong in taking an action against an ecclesiastic, it was because I violated the papal consti- tution, and the crime of violating that papal constitution is visited with excommunication reserved to the Pope. There- fore the bishop, or inferior, has no right to entertain it. Serjeant Armstrong : Well then, the Pope would have power to consider the matter ? Yes, exactly. Would the Pope, according to the law of the Church, be entitled to inquire into the matter if one ecclesiastic in Ireland sues another ecclesiastic in Ireland for words spoken by the latter defamation ? Would you allow me to correct a mistake that has gone through all this proceeding ? The other side talk of its being a rule ; it is not applicable to ecclesiastics at all. I know the whole world is wrong in your opinion, and you will set it right. But listen to me. If in Ireland a Roman Catholic priest sues another Roman Catholic priest for defamatory words spoken about the plaintiff in his office as priest, and touching his conversation as priest, and if the man who has been defamed brings an action in a civil court for words so spoken, is that a matter that the Pope would have jurisdiction to inquire into according to the canon law? No, not in Ireland, because the Pope's bull on that subject has never been received in Ireland. The Pope would have no power to consider that matter ? -No. Where, then, is the authority to do so in Ireland ? I acknowledge the Pope Mr. Pur cell objected. The Lord Chief Justice : The answer that I heard was, that the bull in which the offence is supposed to be recited, namely, that one ecclesiastic can never sue another, is not in force in Ireland. He has said that already. Serjeant Armstrong : Would the Pope have power to decide whether it was in force or not ? Well, I will give the expla- nation now. There is no such rule in force anywhere as a prohibition to an ecclesiastic to implead another in a court. Eev. Robert O'Keeffe v. Cardinal Cullen. 279 The general prohibition is for any one to do so. The other Cross- side have been putting a wrong construction on this matter ^fj^of" for purposes of their own. Father Serjeant Armstrong objected. The Lord Chief Justice : I think he has a right to state this. Witness : Even the Court of Queen's Bench was led astray by being taught to suppose that there was a rule in the Catholic Church that one ecclesiastic was forbidden to mi- plead another in a lay court. The Lord Chief Justice : What is the rule ? The rule is, that any one, priest or layman, Catholic or Protestant, Turk, Jew, or Atheist; any one is forbidden by certain papal constitutions any one at all is forbidden, under pain of ex- communication, by certain papal constitutions, from charging an ecclesiastic with crime before a lay tribunal. You say it relates to crime ? To that only; charging him Rule for- with crime, and it is not confined to ecclesiastics at all. blds an y person to The meaning of it is that he should be tried before an charge ec- ecclesiastical tribunal, and any one as well as an ecclesiastic cl ? si astics 7 with crime. would incur that penalty. Mr. Purcell : Does it prevail here? It does not prevail Ruienotin here ; it never did. ? or f '" ' . . Ireland. Serjeant Armstrong: You denied the bishop's jurisdic- tion, because it was a matter reserved to the Pope ? Yes. Didn't you tell me that you denied the bishop's jurisdic- tion because the subject matter was one reserved for the Pope ? Yes. Was it reserved for the Pope ? Wherever the papal bull was in force. Was it because it was reserved for the Pope that you declined ? That was one reason. Then it was reserved for the Pope ? Mr. Purcell objected. The Lord Chief Justice : I have taken down twice over that it is so where those papal constitutions prevail. Whether he is accurate or inaccurate, it is a matter for inquiry whether such a papal constitution prevails here, and whether if it does it is consonant with the law of the land. Serjeant Armstrong : Do you deny the authority of the Pope to decide on the propriety or impropriety, canonically 280 Court of Queen's Bench (Ireland}. Cross- speaking, of your conduct in suing the bishop ? I admit the examma- p O p e h as universal jurisdiction over the entire Church. Father Do you admit the authority of the Pope for spiritual O'Keeffe. purposes, and to investigate and to decide on the propriety, canonically speaking, of your conduct in suing the bishop ? The Pope can sit for any matter. Then you admit his authority to decide on that ? I do ; he is my superior. Power of Can he delegate by Act of Propaganda, through which delegate ^ e speaks ? I believe you know the announcements of the his powers. Pope are made by Propaganda? In some missionary coun- tries, and also in Ireland, though it is not a missionary church. We claim to be a national church. Serjeant Armstrong : I am sure you do. Propaganda is free as to missionary countries. We, though not a missionary country, are a poor country, and we are not charged for any of our business done in Rome. Do you admit the authority of the Pope to delegate to ecclesiastics in this country the power of considering that question ? Yes, certainly. I am only speaking canonically, as amongst yourselves. Oh, of course, I want nothing but the benefit of the laws of my own Church. If you paid that money to the nuns, I would be talking to you ? I don't despair after all of your coming round, Serjeant. Oh, you love the whole world ? I think I have charity for every man. Was the condition of Callan amongst the people your parishioners very frightful and scandalous, owing to these dissensions ? Oh, the place was very much disturbed. In the summer of 1871 ? Yes. Was that a matter of public and general notoriety ? Yes ; known all over the country. All over the world. Rival mobs ? Yes, oh yes ; constant breaches of the peace. Followed by summonses and cross-summonses at the sessions ? Yes. In May and June, 1871 ? Yes; constant quarrelling. Some of Paul and some of Apollos? Yes. Some of Cephas, and possibly very few of Christ. And it came to that state of things ? It came to this state of Rev. Robert O'Keefe v. Cardinal Cullen. 281 things, that very few were free from sin. It was a very sad Cross- II /> IT . . T j examina state of things indeed. tion of And in that sad state of things you received this letter Father from the Cardinal. (Letter from Cardinal Cullen to plaintiff, dated 16th July, 1871, read.) 1 I suppose you gave his Eminence credit for sincerity in saying that the accounts which had reached him of dissensions and disputes in Callan had afflicted him very much ? Oh, of course. Expressing his affliction at the news from Callan, and begging to have a conference with you ? Yes. Did you consider there was anything impossible in the suggestion that he was in a position to attempt to restore peace ? Certainly not. Then, sir, I will read you your reply. (Letter of plaintiff to Cardinal Cullen, dated 17th July, 1871, read.) 2 Serjeant Armstrong : You say ' I have a heavy bill against Dr. Walsh, which I sfiall certainly insist on being paid by his lordship or somebody else ' did you mean that the Cardinal was to pay that ? I mean the authority of the diocese. Who was the authority of the diocese ? The acting authority of the diocese was Dr. M'Donald. You commenced an action against him for the suspen- sion ? Yes. (Plaintiff's letter, dated 18th July, 1871, to Cardinal Cullen, read.) 3 The tenor of your discourse and the order was as you have written ? Yes, for my own protection. All you wanted was to get the money and drop the law ? I could not drop the law without getting the money, because I should go to bankruptcy. You wanted the money? I wanted to be saved from bankruptcy. You knew the bishop's mind was gone or going at the time ? I didn't know, but there were rumours. Didn't you know that he was losing his mind ? I con- sidered that he was, partially. 1 Supra, p. 163. 2 Supra, p. 164. * Supra, p. 164. 282 Court of Queen's Bench (Ireland). Cross- You spoke of the open and barefaced perjury of your examiua- Brother-priest, Father Walsh ? Yes ; open and barefaced. Father Do you swear now that Father Neary swore what you j Keeffe. j^ye wr itten here? I heard him swear it. Do they speak French well down there in Callan ? They do ; they used it at the time. Do they fight in French in the street whenever they have rows ? My children never quarrel. (Letter from Cardinal Cullen to plaintiff, dated 20th July, 1871, read.) 1 You received that letter? Yes. (Letter of plaintiff to Cardinal Cullen, dated 21st July, 1871, read.) 2 You heard it was said that those resorting to your minis- tration committed sacrilege ? I did. Who dinned language into the ears of the people, and repeated it when questioned with an oath ? A priest sitting in the confessional. How do you know ? I was told it constantly. You were told by penitents of what had passed between them and the priest in the confessional ? I was. Were you confessing them yourself at the time ? No. Were you a witness to the priest being removed by another priest from the street to his house ? It was proved in this court. Did you inform your congregation that the priest was in a drunken state at the altar as in the street ? I didn't use the word drunk, but I used the language I use there. Did you mean under the influence of drink that he had to be removed by another priest to his house, and did you inform them from your own altar that he was in the same state at his altar that he had been in the street ? I did. And you thought that a proper thing to do ? I did. Is it a part of your plan to run down your adversary ? It was thrown upon me. It was a necessary thing for me to expose the character of the persons that were assailing me. I had no other means of defending myself. And to inform the congregation ? Not to inform the con- gregation. I had no other means of defending myself. I was perfectly justified in adopting this in my necessary defence. 1 Supra, p. 166. 2 Supra, p. 167. R&v.< Robert O'Keelfe v. Cardinal Gullen. 283 Who was the priest that was under the influence of Cross- drink '? That priest was the Eev. Patrick Neary. "STUf ~ You swear that ? It was proved in this court by William Father Henry Butler. O 'f!f e - You did your best to degrade Neary to the public ? I was justified in doing it. What authority would the archbishop have to send missionaries to Callan ? I thought he would take an interest. What do you mean by ' send a commissioner ' ? I thought he would send some person in a friendly way, if he had any interest in religion. Do you sincerely respect his Eminence ? I do. After having deceived you about the nuns, and played a double part, do you sincerely respect him? I sincerely respect him. You do, though he has deceived you ? And I would do anything at all to gratify him that I could in honour ; but I was not going to make a bankrupt of myself to gratify him or anybody else. Are you in earnest in saying that you sincerely respect him? He entrapped me. But still you sincerely respect his Eminence? I do respect his Eminence. And would do at his desire anything you could ? I would. What was the impossibility ? The impossibility was to forego six or seven hundred pounds which I could not afford. The impossibility was asking you to come up and have a conference ? I gave him to understand that I would come up at great inconvenience on Friday if he wished. Did you believe that lives would be lost at Callan if order was not restored ? I did. And was there any authority competent to deal with what was going on at Callan if the time had come for it? Had it come for its exercise ? Was there anything so monstrous as law proceedings going on for years ? Was there anything so monstrous as to hear you telling the congregation from your altar that your curate was so drunk that he could not read the gospel? I had no other means of meeting this slander except by telling the people that he was unworthy of belief, and showing his character ; but I said nothing untrue about him or of anybody else. 284 Court of Queen's Benvh (Ireland). Cross- Did you lodge a complaint with the bishop about him ? "icm'of" Ok> ^ e was doing the bishop's work; he was his special Father agent in the parish ; he was sent there specially to do that O'Keeffe. i business. To do what business? To vilify ine in every shape and form. You swear that ? I do. Who sent him there to do it ? Dr. Walsh. When did he send him there to do it? He sent him there in August, 1869. I suppose you heard him give instructions to vilify you in every way ? No. You swear that your bishop sent a curate with instruc- tions to vilify you, the parish priest, in every way ? I say he sent him there for the purpose. You swear that? There is no use in swearing it. Are you not swearing it? It is a matter of belief; and I am not stating that I heard it said, that I was present when it was said, but he was sent for the purpose of vilifying me. Did you inculcate this at the same time that you were informing them that your curate was drunk ? I was obliged to state those things, Serjeant. On your oath, do you believe in your heart that Father Neary was drunk on the altar with the sacrament in his hand ? Did I believe it ? Of course I did. Would you believe anything at all that could be said of him ? I believe what I know to be a fact. Do you know that to be a fact ? I had a man here in court at the time to prove that he frequently saw him hold up the Holy Sacrament in his hand, and swear that I was a suspended priest, and it fell from his hand on two occasions. Mr. Meredith would allow me to put him up. The Lord Chief Justice : How long was this gentleman, Mr. Neary, in the parish before he made his first speech about you ? He was about ten days in the parish. It was the first time he addressed my people in the parish chapel. Serjeant Armstrong : And you had a fortnight before addressed the people about what the bishop said to you. Didn't you announce from the altar that on a future Sunday you would make a statement to the congregation in reference to what the bishop had said to you ? I said no such thing. Rev. Robert O'Keeffe v. Cardinal Cullen. 285 You did not come up as a matter of fact to Dublin ? Cross- The Cardinal did not ask me. Ton'of ~ Now, Mr. O'Keeffe, we know you were in communication Father /YTT ff with Dr. M'Donald, and I will now just come to a letter ee e ' which you addressed to him on the 8th of August, 1871. 1 (Counsel reads) : * My dear Doctor I promised you on Satur- day that I would not again speak unfavourably of anyone in public if a fresh attack were not made upon me.' I made that promise. (Letter continued) : ' This attack has, however, been made, and I think it will be necessary for me to bring Mr. Neary's conduct before my congregation on Sunday next.' That appears to be your habit, when anything annoyed you during the week to address your congregation on Sunday about it ? That has not been my habit. But you have done it several times ? No. Did you not do it several times ? When it was necessary to defend myself, and to show that I was not guilty of improper conduct that might be imputed to me, then in the discharge of my duty I addressed my people upon the subject. Were you annoyed at what he said, or not? Not annoyed. You liked it ? I don't think I ever lost my temper. You kept cool all through ? I acted with great delibera- tion all through, and I never did anything I did not think myself justified in doing. You never committed a fault in your life ? I will not say that. We are all sinners. / (Letter continued) : ' This attack has, however, been made, and I think it will be necessary for me to bring Mr. Neary's conduct before my congregation on Sunday next. On last Sunday he was only prevented from entering my church at twelve o'clock, in order to tear the vestments oft my shoulders, by my clerk, who, anticipating his visit, adopted the precaution of locking the outer gates.' I want to know your authority for writing to the vicar-general that it was your clerk who prevented Father Neary from entering the church to tear the vestments off your shoulders ? My authority is the clerk. What did he tell you? He told me that he had locked the door against Father Neary. He saw Father Neary coming up the street before mass commenced. 1 Supra, p. 174. 286 Court of Queen's Bencli (Ireland). Cross- examina- tion of Father O'Keeffe. Is that what the clerk told you ? The clerk was usually about the gate keeping order, and showing people to their places in the church, and Father Neary, shortly before mass, commenced to walk up the street, and went as far as the poor-house. The clerk considered he was too early for coming in. He thought that perhaps he was coming to tear the vestments off me. What put that in his head ? The clerk told me that. When the clerk saw him go up as far as the workhouse, and saw him turn back, he locked the gates; and when Father Neary came he could not get in. He attempted to get into the gates and could not, and then he went to a house adjoining the church, and went out through it to a yard backward, from "whence he could come by climbing over a fence into the chapel yard, but he was prevented. The clerk told you that he came to tear your vestments ? If you wish to hear the clerk, he is summoned here by the other side. Did the clerk tell you that Father Neary's object was to tear the vestments off your back ? Yes ; he told me that. And you believed that ? I did. He told me that when Father Neary came he had the gates locked against him. I think he is in court. He was summoned by the other side against me. You adopted his view of Father Neary 's intention? I did. Did you hear him say he heard that was Father Neary's intention ? He did not tell me he said that. He said that he was informed that Father Neary intended to come in and take the vestments off my back, and as a precaution he locked the outer gates ; and that after he had done so Father Neary attempted to come in through the gate. And you believed that? I saw no reason for disbe- lieving it. (Letter continued) : * There were more than 3,000 persons in and around my church, and I firmly believe if he assaulted me in their presence he would never leave the church alive. He paraded the streets very late at night, escorted by a gang of the very worst characters of the town, abusing me every- where in the most violent manner.' What is the authority for that? A great many people it is a public fact. Who told you ? I don't know. Rev. Robert O'Keeffe v. Cardinal Cullen. 287 You were in bed at the time, or at least not in the street? Cross- Next morning I might hear it. "STof ~ You did not see these things ? I can name people who Father saw him. (Letter continued] : ' It will give you an idea of the sort of persons by whom he was accompanied, when I inform you that the leader of the party was the notorious Fenian, Heffernan Dunne, the former mock candidate for the county, and a ruffian who was convicted three times of violent assaults at the single sessions held here on the 6th ult.' You knew that man ? I was in court. A ruffian ? Yes, a notorious bad character. (Letter continued) : ' It is commonly believed here that Father Neary was under the influence of drink from before the time he read eleven o'clock mass in the Friary Chapel, till he left the streets for the last time at one o'clock on Monday morning.' What time would he be solemnizing mass ? Eleven o'clock in the Friary Chapel. And he was out till one o'clock on Monday morning? I don't say continuously. From eleven o'clock till one o'clock would be fourteen hours. Do you believe he was under the influence of drink for that time ? That is the common impression. That he was under the influence of drink all that time ? Yes. And you believed all this ? I did. (Counsel read reply of Dr. M'Donald, dated August llth, 1871.) ' Then you received a letter on the 8th September, 1871, from the Cardinal in reference to the approaching meeting of the clergymen to elect a coadjutor-bishop or to recommend him ? Yes. Was the rescript of 1829 for regulating the proceeding? Rescript For regulating the mode of proceeding in cases of recom- mendation. Was that by Propaganda ? Yes. Were you bound to attend to that ? Yes ; it was a sort of concordat between the Irish Church and Rome. (Counsel read letter of Cardinal Cullen, dated 8th Sep- tember, 1871.) 2 1 Supra, p. 176. * Supra, p. 176. 288 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. Now he suggested in that letter the likelihood of a question arising as to your being entitled to vote while being under censure ? Yes. Now I will read your answer. (Counsel read letter of 10th September, 1871.) J You also wrote to the vicar-general, and I will read your letter as showing the condition of things on your own statement. (Letter read) : ' Callan, 8th September, 1871. 2 There were eighty cases for trial at the sessions here on yesterday, and the Court (four justices) sat from eleven to half-past seven o'clock.' Were those all arising out of this ? No, not at all. What were they ? They were chiefly arising from colli- sions. From the religious feuds ? Yes, between the parties. (Letter continued) : 'About seventy of these cases were for assaults and battery by the adherents of the rival P.P.'s of the town.' Who were the rival P.P.'s ? The Eev. Mr. Walsh was one and 1 the other. Was he a P.P. ? He called himself that. Was that the curate ? Yes, the curate, the Eev. Mr. Walsh. Was he a P.P. ? I don't think he was. Don't you see you call him that? If he chooses to take it. (Letter continued) : ( Eighteen men and women were sent into the Kilkenny jail at ten o'clock last night, and about fifty others were either fined or imprisoned here for forty- eight hours. Warrants were issued against three men whose assaults were of a murderous character. More than 200 per- sons were summoned to the court, and in my own presence very many of them committed the reserved sin of perjurium formale.' What is that? That is a reserved sin in the diocese of Ossory. What sort of perjury is that ? Wilful perjury in a court of justice. That is reserved sin in a court of justice. That is a sin for which the party must refer to the Ordinary of the diocese. I could not deal with such a case. These were all your own flock ? They ought to be my own people. 1 Supra, p. 177. 2 Supra, p. 178. Rev. Robert O'Kee/e v. Cardinal Cullen. 289 People of your own congregation ? Many do not ac- Cross- knowledge me. examina- tion of (Letter continued) : f The J.P. who presided declared more Father than once that the state of things revealed in Court was too barbarous, he thought, to exist in any civilized community, yet Callan was as peaceful as most other places until an opposition P.P. set himself up in the Friary Chapel and denounced the lawful pastor as a follower of Martin Luther.' Who is the opposition P.P. ? The Kev. John Walsh. Were you present when he denounced you as a follower of Martin Luther ? No. Who told you that ? I heard it often. I was constantly denounced, Who told you that ? Oh, a hundred people. I will he satisfied with the name of one ? He was con- stantly denouncing me. Tell the name of one. Well, Councillor Heron in this Court represented me as Martin Luther in a court of justice. That is not the point. Who told you that Father Walsh denounced you as a follower of Martin Luther ? It is im- possible for me to say. You cannot name any person who told you? No, I cannot indeed. Except Mr. Heron ? Mr. Heron called me by that name. Don't you think that a clever thing now ? What harm in saying it ? (Letter continued) : ' I am promised redress by the Poor Law Commissioners for the ill-treatment I have received in the workhouse at the instigation of my rival ; and at the sworn investigation which I expect will shortly be held here.' Did you ask for an investigation ? I did. You have every sort of law ? I did not ask for an inves- tigation, but I made reports that I thought would lead to an investigation. (Letter continued) : ' And at the sworn investigation which I expect will shortly be held here, I am prepared to give evidence of language used by him to persons en their sick bed which will bring disgrace on the Church which has met with the misfortune of having him for one of her ministers.' That is Mr. Walsh ? Yes. u 290 Court of Queen's Bench (Ireland). Cross- ' In view of this state of things, which is growing every ^ioTof ^ a y worse > I f ee l called upon to withdraw, unless the Eev. Father Messrs. Walsh and Neary be immediately taken away from f e- Callan, the letter which I wrote to Cardinal Culleii on the 27th July, expressing my intention to abandon law proceed- ings against yourself and Father Neary.' That means, if you don't send away the two curates I will go on with the law ? Yes, that I will go on with the law for my own pro- tection, not for any other purpose. Now on the 24th September you addressed Cardinal Cullen, not in answer to any letter of his Eminence to you, but you volunteered to write to him ? Yes, about the state of the parish. He had ceased correspondence with you at the time ? I received no letter at that time. And you had not for a length of time ? No. Your letter commences, 1 ' My Lord Cardinal, The oppo- sition P. P. here published stations this morning for the people of Newtown to be held in the Friary Chapel next week/ Now you call him the opposition P.P. Do you mean to admit him as that ? I do not. Do you mean to regard the superscription of the P.P. as an admission of it ? No, I do not. You ha,ve called this very man an opposition P.P. They are words of courtesy ? No, I don't say that. (Letter continued] : ' Only one householder was absent from these stations last March, and I expect as good an attendance this time. This opposition is therefore a source of profit to me.' So you were making money by it ? At that time I was. It was afterwards you began to lose ? Chiefly from the missions sent from Dublin to preach up my suspension. (Letter continued) : ( but still I feel called upon to make known to your Eminence its continuance, and to demand respectfully that you will have it put an end to. I make a formal demand on your Eminence for the removal of the Rev. Messrs. Walsh and Neary from Callan on the grounds of their having denounced me as having incurred censure, without any authority, written or otherwise, from the Ordi- nary of the diocese.' Wha.t power had his Eminence, who 1 Supra, p. 180. Rev. Robert O^Keeffe v. Cardinal Cullen. 291 was not the bishop, to remove the curates ? What letter is Croes- ,1 . n exMnina- that ? tion of The 24th September, 1871 . What power had he to remove Father the curates ? I was told by Dr. M'Donald that he could not interfere with Callan, as it was all in the hands of his Emi- nence. He told me at the retreat in the previous July that all power was out of his hands. I asked him in a friendly way to remove the curates, and he said he could not, as all power was taken from his hands, and I then asked Cardinal Cullen to do it. (Letter continued) : ' That these clergymen denounced me is a notorious fact, and that they had any authority to do so is denied in writing by Dr. M'Donald.' Is that his letter? It is in his pleas in the action. (Letter continued) : ' They have clearly therefore acted in open violation of the statutes of Thurles (De parochis, Nos. 18 and 19), and on this ground alone I found my demand for their removal. I have drawn up a statement of my case as far as I am concerned with the authorities of the diocese, and I think I have made it out in such a way as must satisfy any theologian or canonist, that I have not incurred suspension or any other censure before God or man. I will send this statement to your Eminence whenever you require it, but I must look upon the removal of the Rev. Messrs. Walsh and Neary from Callan, on the grounds stated, as preliminary to any inquiry into my conduct, or the validity of the censures passed on me.' Now I ask you, weren't you willing to have the question of the validity of the censure passed upon you inquired into, provided Walsh and Neary were removed? I was always desirous that the validity of the censure should be inquired into, and I pressed on Cardinal Cullen to do his duty when he undertook to preside at Kil- kenny, and to inquire into the question. The Lord Chief Justice : What was the date of the meeting in Kilkenny ? Serjeant Armstrong : The 10th September, 1871. We have passed that. (To witness) : Now don't you admit that pro- vided the curates were removed you were anxious for a,n inquiry into the validity of the censure? I was most desirous for it. I was always in an extremely unpleasant position, most naturally. u 2 292 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. Here is the Cardinal's answer, dated 2nd October, 1871 ; 1 that was not long after the 19th September ? It was too long. I suppose you will admit he has a great deal of public business to attend to? It was too long. An hour would be too long to leave me in the position I was in. Here is his letter : ' REVEREND AND DEAR SIR, As I mentioned in a former letter, I have been charged to examine into the parish of Callan and to put an end to the evils therein prevailing. The Holy See has given most ample powers in the case, but I am anxious not to be placed under the necessity of using them.' What did you understand by ' the Holy See giving most ample powers ' to the Cardinal ? I do not know. You understand the meaning of plain English. Didn't you understand he had derived the authority he had stated ? Did you believe the statement ? I did not know what to make of it. Did you believe it? I did not like it. I am sure of that. Did you believe it or did you think he was deceiving you? I did not know what to think of it. ' The Holy See has given me most ample powers in the case ; but I am anxious not to be placed under the necessity of using them.' On your oath, what did you understand by that ? The Holy See ? I do not know. Did you believe the statement ? I did not know what to think of it. Did you believe the statement that the Holy See had given him most ample powers in the case that is, the case you were so anxious to have discussed and disposed of? Of course I supposed the Cardinal Did you believe the statement ? I supposed the Cardinal was writing the truth ; of course I supposed that. (Letter continued) : ' Hence I would wish to have a conference with you on the matter. If you come up on Friday I can be at home that day at one o'clock, P.M. If you prefer any other day, I can suit myself to your convenience. If Friday suit you, be so good as to write me a line. Wishing you every happiness, ' I remain yours faithfully, ' PAUL CARD. CULLEN: also the reply of the Rev. Mr. O'Keeffe, of 22ud Oct. 2 ) Now coupling those with his Eminence's letter of the 2nd Oct., in which he announced to you that the Holy See had given him ample power in the case, I ask, coupling that with the intention of sending a citation, didn't you know and believe he was deputed by the Holy See to inquire into the Avhole matter? I did not like his talk of the citation. Didn't you believe he was deputed by the Holy See to in- vestigate the matter? I really do not know the authority he had from the Holy See ; I knew he had some authority. Did you know he had authority from the Holy See ? I ' Supra, p. 183. - Supra, p. 181. Rev. Robert O'Kce/e v. Cardinal (fallen. 297 knew he had authority from Rome to declare whether the Cross- censures were ffood or bad, and I was most anxious he e ^ mi "a- 7 tion of should declare they were either good or bad. I demanded Father that he would declare them bad, as I knew they were, and I was grieved that he would not. You did not like to listen to the talk ? I did not like the talk of the citation. You knew that that would be regular? If he sent a citation I would not go to him. That is the reason I said I would be very happy to see him. Had you a stone in your sleeve all the time about getting the citation ? I had no stone in my sleeve. Wasn't that your point ? I had no stone in my sleeve. You say if he had served you with a citation you would not have gone? I would not like to be caught a second time in a trap. You had the stone in your sleeve, and you would present yourself before him ? I wrote to show him it was my desire, and that I was anxious to have decided what he was em- powered to decide, and also to propose that he should not send me a citation., because if he did I would not go. The Lord Chief Justice : Why ? That would be an ac- knowledgment that he had jurisdiction over me.. I never acknowledged he had jurisdiction over me, but I acknow- ledged that hehad a right todecide that the censureswere bad. Then you went to a sort of conference ? I went to a sort of conference, desirous that he would denounce them bad, in virtue of the power he got in Kilkenny, and which he did not exercise, and which I complained of. Now, at the election in Kilkenny, was that paper read by Confer- any person that authority ? There was a paper read in ^t. 8 ^ virtue of which Cardinal Cullen was appointed to preside at the election, but there was no paper in reference to me. None at all ? No ; not at all. Serjeant Armstrong : That is a common fact in the case, my lord. (To witness) : Now, sir, listen to me ; you went innocently there, not knowing what you were about, and would like to know how it happened. Here is the Cardinal's letter. 1 After stating his intention of sending a regular citation, the second paragraph is this ' I will examine 1 Supra, p. 183. 298 Court of Queen's Bench (Ireland}. Cross- examina- tion of Father O'KetfFe. Witness denies that he knew of Papal Rescript. whether you have incurred suspension or excommunication, either ab homine or a lege, or canone, whether you have in- curred irregularity.' Would not that be disobedience if a censure was properly passed ? That would be one way. (Letter continued) : ' and whether any or what penalty is to be inflicted on you for having neglected those censures or ecclesiastical penalties, if you have done so.' Didn't that dis- tinctly apprise you that he would inquire into the validity of the prior censures, and whether you were guilty of irregularity in disobeying them, and whether he should impose a penalty upon you ? What I say is, that if he sent a citation along with that letter I would not obey it. But T went up in order that he might decide that the censures inflicted upon me were bad ; and I well knew he had power so far from the Holy See. But not under any circumstances did I mean to acknowledge he had jurisdiction over me, except to the extent I name. The Lord Chief Justice : When you say ' the jurisdiction named,' is that the jurisdiction he clearly had to hold the inquiry, and to proceed to the election in Kilkenny ? I don't consider that jurisdiction. I mean authority to try or judge me or entertain complaints. I would not admit that juris- diction over me, but I would acknowledge he had a right to say that, in connection with the authority to conduct the election at Kilkenny. But I never dreamt he had any other power relating to me at all until months after the writ was executed. Serjeant Armstrong : Didn't you understand by his letter what he proposed to examine whether you had incurred suspension or excommunication ; ' whether you incurred ir- regularity, and whether any or what penalty is to be inflicted on you for having neglected those censures or ecclesiastical penalties if you have done so.' Didn't you understand him there to be assuming or asserting a jurisdiction to consider whether you were guilty of irregularity, and to punish you if he thought you were? He was assuming more than I thought he was entitled to assume, but I did not want to get into any controversy with him as to the nature of the power he had, and I wished to keep clear of a citation, for as I said, if after that letter he had sent me a citation, 1 would not feel wan-anted in going to him in answer to such citation. Rev. Robert O'Keeffe v. Cardinal Cullen. 299 The Lord Chief Justice : Tell ine why ? Because people Cross- might say this : You complain you got no trial, you say this ecclesiastic had no jurisdiction. Weren't you cited, and Father didn't you answer the summons ? And people would say it is too late now to show he had no jurisdiction. Serjeant Armstrong : Didn't you keep that as a stone in your sleeve, ' Don't send ine a citation.' And weren't you con- templating the controversy, though you did not want to be cited ? I had no controversy. By your oath, in the presence of God, when you wrote that letter to the Cardinal dispensing with the citation, weren't you planning that you should not have a citation ? I did not dispense with a citation. You did ? I dispense with it ! What do you mean, Serjeant? How innocent you are ! I could not dispense with it. Listen to this l My Lord Cardinal, I shall be happy to present m^ self before your Eminence on Friday, and, to save your Eminence's valuable time as far as I can, I send you my defence.' 1 What is the Cardinal's answer? Here is the answer the next day 2 ' As you have shown such willingness to come up on Friday next, I have not considered it necessary to send you a formal document.' Now didn't you waive the necessity of it? I did not. But when I found that he was not bringing me up on Friday by a citation, then I went. But if he were attempting to bring me up on Friday on a citation I would not go an inch. I was not bound to ac- knowledge any. The Lord Chief Justice : It is onlj just to the case of both parties to say that the Cardinal himself in a letter says that before using any powers, and not wishing to use them, he- would wish to have a conference. 3 Serjeant Armstrong : I have come on for nineteen days- past that letter. The Lord Chief Justice : I think that a letter of such im- portance as to say ' I don't wish to put my powers in force against you, but I wish to have a conference ' seems to point to something different from a controversy. Serjeant Armstrong : I will have the case understood. On the 2nd October, his Eminence wrote : ' As I mentioned 1 Supra, p. 181. 2 Supra, p. 185. 3 Supra, p. 181. 300 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. in a former letter, I have been charged to examine into the condition of the parish of Callan, and to put an end to the evils therein prevailing. The Holy See has given me most ample powers in the case, but I am anxious not to be placed under the necessity of using them. Hence I would wish to have a conference with you on the matter. If you could come up on Friday, I can be at home that day at one o'clock P.M. If you prefer any other day, I can suit myself to your convenience.' * As his lordship says, that suggests a confer- ence and not a controversy. But then, sir, you wrote on the 4th of October, 2 ' I have the honour to acknowledge the receipt of your favour of the 2nd inst., and to say in reply that it is impossible for me to recede from the terms of my letter to your Eminence dated the 24th ultimo.' That was as a condition precedent to any conference. Now on the 21st October, nineteen days afterwards, the Cardinal writes to you, ' My dear Father O'Keeffe As it is necessary to settle the affairs of Callan, I have determined to send you a regular ecclesiastical citation.' 3 Did you understand that it was to be a mere conference ? I wanted to keep clear of a citation. Do you understand it to be a mere conference ? I under- stood him to be assuming more authority or control or power over me than I was willing to admit, and therefore I did not think it meant the mere conference I wanted to keep it to To keep it to ? To keep it to a mere conference. Did you not intend to leave the Cardinal under the im- pression that you were yielding without a citation ? I did not mean to convey anything. Answer me. Did you not intend to leave the Cardinal under the idea that you were willing to have the case investi- gated ecclesiastically ; on your oath did you not intend to leave him under that impression ? I did not intend to leave the Cardinal under any other impression except this, that I would go up to meet him to confer with him for the purpose of giving him any explanations that he might require, in order that he might declare the censures to be invalid, as he said he had not time to do it on the occasion of the meeting in Kilkenny. You were informed fully of the subject matter on which he proposed to hold the meeting to inquire whether you were 1 Supra, p 180. * Supra, p. 181. * Supra, p. 183. Rev. Robert O^Keeffe v. Cardinal Oullen. 301 guilty of irregularity in disregarding past censures, and Cross- whether, if he found you to be so, he would inflict any tfcn of* penalties on you ? That was the object. Father It is too plain for argument. Your answer is here ; you took no exception to his jurisdiction ? No, because You did not suggest that he was assuming too much ? No, for he did not state to rne what his jurisdiction was. You told us already you knew he had authority from the Holy See ? Oh, authority from the Holy See to declare the censures invalid. If he had decided in your favour, would you have accepted his decision ? If he decided where ? In Eccles Street, on the 2 7th of October. Would you have accepted his decision if it was not you who had been guilty of impropriety? Of course; but there was no question of im- propriety at all. Would you not have accepted his decision if it was in your favour ? Mr. Purcell : On what ? Witness: On what? Serjeant Armstrong : On the question of whether you were guilty of the canonical offence of disobedience to the orders of the bishop in celebrating mass and so forth after you were suspended? Guilty of what? After what you don't admit to be suspensions, and which I will call ' suspensions ' merely for the purpose of identi- fying the documents, did you not proceed to celebrate mass ? Of course I did. And baptize children ? I did. And discharge all the duties of a parochial clergyman ? All the ordinary duties of a parish priest. If he had decided that you were justified in doing all that, would you not have been satisfied with his decision ? I would of course, and I say he was bound to decide it, and to decide it before the election held in Kilkenny, for when he undertook the duty of presiding at the election, it was part of his duty to inquire before the election, and ascertain whether any of the parties who ordinarily had the right to give their votes were disqualified or not. And I gave him ten days' notice that I was prepared to show I was not dis- qualified. 302 Court of Queen's Bench (Ireland) . Cross- examina- tion of Father O Keeffe. Denial of the Cardinal's jurisdic- tion. You are very clear in answering everything bnt what yon are asked. Listen to your letter of the 22nd October, 1871. (Letter of October 22nd, 1871, read.) ' On your oath, did you not intend to convey by that letter that you did not require a citation ? I did not, but I will tell you what I meant. You are at liberty to tell that too ? I meant to show such a desire to go before him, as that no citation should be sent. I said not. I was quite willing to go before him, but had he written a citation he should specify his commission, and specify the nature of the offence with which I was charged, and if he sent me a citation of that kind I would not acknowledge his jurisdiction at all. I would disregard it. You had all that in your mind at the time ? I had this in my mind, that I did not want to go near him, being afraid of a citation, for people would say if I did, I acknowledged his jurisdiction. The Lord Chief Justice : Would you not acknowledge his jurisdiction, supposing he had sent you a citation containing a statement of the offence, supposing there was something of a canonical offence ; and if he had set out his commission from the Pope to inquire into that, and if it was a matter the Pope had authority to give him a commission to inquire into ? If that was the purport of the citation, what then would you have done? I would object to his jurisdiction. Why ? As being a person who was not proper to be ap- pointed judge. Why so ? Inasmuch as he had condemned me without a hearing, and inasmuch as I had good reason to know he was my accuser in E-ome, and the accuser is certainly not the man to be appointed the judge by the canon law or any other law. Serjeant Armstrong : When you went before him at his house, did you tell him your suspicions, and that you re- garded him as your accuser? I did not do any such thing. You had that in your sleeve also ? I had nothing in my sleeve. I had no secrets at all. Did you not regard him at that time as your accuser ? I never had any secrets in the whole of this case from any one ; not from my own people, or any one. 1 Supra, p. 184. Rev. Robert O^Keeffe v. Cardinal C alien. 303 When yon went to his house, did you think he had been Cross- your accuser ? had you. that in your mind also ? It was after e ^ ) 1 "f " leaving the house that I got fresh information upon the sub- Father ject. '^l ffe - Had you it in your mind at the time you went to his house, Mr. O'Keeffe, that he had been your accuser ? I had this in my mind, that he had condemned me without a hearing. What was the condemnation ? Not to receive my vote. That was condemning you telling you he could not re- Refusing ceive the vote at the time ; that he could not investigate the vot< ? . equivalent matter at the time? Yes ; that was equivalent to a declara- to con- tioii that I was validly suspended, and I had the highest demnatlon - authority in the Irish Church to say that the late Dr. O'Hanlon, of Maynooth. He is dead now. Mr. Pur cell : His letter is here. 1 Serjeant Armstrong : Don't be talking of the letter of a man in his grave. To witness : The clergy met on the 19th September to vote for a new bishop ? Yes. Was not that their business? Yes. Is it your idea that the business they came about ought to be stopped in order to hold a collateral inquiry as to whether your vote should be received or not? No, but this was my idea, that ten days before that there was time to go into the case of my alleged suspension, and it was not done. I told Cardinal Cullen I was ready to show that the suspen- sion passed on me was invalid, and I don't think the inquiry would take ten days, Serjeant, nor do I think it would take ten minutes. Did you ask him to hold an inquiry between the 10th and the 1 9th ? Between the 10th and the 19th. Yes, I told him I was prepared to show I was qualified to vote. You did not show it ? He did not ask me. You did not offer to show it ? You deferred it till the 19th, when he could not go into it? I did not defer it. I told him by my letter ten days before Mr. Purcell : That you would answer any objection. Witness : That, if there was any objection to my vote on the 1 9th, I was quite prepared to meet it. Serjeant Armstrong (to ivitnesz) : You wrote to the Cardi- 1 See Appendix, No. III., p. 581. 304 Court of Queen's Bench ( Ireland) . Cross- examina- tion of Father O'Keeffe. Interview with the Cardinal. nal to say that if there was any objection to the validity of your vote, you would be able to show the validity of your vote? Certainly. Did you not admit that it was not fit that the investiga- tion should take place on the 19th? Why, what was to prevent it taking place? Did you not tell me that the priests met for the purpose of electing a bishop? Yes, and could they not spare ten minutes ? Do you think it could be settled in ten minutes ? T think it ought. I think if I could tell Cardinal Cullen that I never knew of any charge made against me, that I neither got a trial nor a citation to trial, I think that ought to settle it at once. How can a man be condemned is there justice in the world? how can a man be condemned without imputing guilt, without informing him of the charge? How is a man to keep out of the bankruptcy court if he does not get money ? Now listen to me. On the 22nd October, 1 having written to the Cardinal that you would attend with great pleasure before him, he on the 25th writes to you this letter : 2 'My DEAR FATHER O'KEEFFE, As you have shown so much willingness to come up on Friday next, T have not considered it neces- sary to send you a formal document.' That is a citation ? Yes. And if he had sent it to me I would stay at home. But you would wish to have the benefit of a decision in your favour, and if not, to have a dozen stones in your sleeve ? No, don't be talking of stones. I was always desirous of being put into a right and proper position. It was treating me with the greatest cruelty leaving me in the state I was. Was it not all like water on a duck's back ? Well, thanks be to Almighty God. You snapped your fingers at the whole of them, Pope and all. You came up on Friday, the 27th of October ? Yes, on the previous day. You came up on Friday, the 27th of October, and you saw Canon Forde and the Cardinal ? Yes. And I believe you were about three hours and a half tli ere ? Yes, we were there from eleven o'clock till after two. 1 Supra, p. 184. * Supra, p. 185. Rev. Robert O'Keeffe v. Cardinal Cullen. 305 Now, during that time was the discussion going on with Cross- respect to the matters we have been speaking of? Yes, they ^^f " commenced reading the papers. Father Did you make out your case as fully as you possibly could fully and at large before the Cardinal? My case was written out and sent up to the Cardinal beforehand, and I told him he might show it to any of his * great guns ' in Dublin. Any of his great guns? To perforate it, if they were able. I told him he was surrounded with numerous theolo- gians in Dublin, and let them examine my paper and see whether or not they could pick a hole in it. Of course you are speaking in figurative langua.ge : you did not call them ' great guns ? ' Mr. Purcell : No, ' distinguished theologians.' Serjeant Armstrong (to witness] : You regarded your paper as impenetrable armour ? I did. I knew it to be quite right. I want to know, besides the impenetrable armour of the 'ten points' * that you had in your paper already, did you make a viva voce statement of your views ? Oh, we talked over it generally, and the Cardinal asked me what I had to say to this and to that, and I gave him my answers and showed him the absurdity of these different papers professing to be censures. Did he hear all you had to say with patience ? We were talking for a long time Did he hear all you had to say with patience ? In point of fact, I had nothing to say. Did he hear all you had to say with patience? My objections to the validity of the censures were written out. I laid down nine objections. If I was able to establish any one of the objections, the censures were invalid, and I was able to establish every one of the nine beyond the probability of contradiction. To your own satisfaction? Beyond the possibility of contradiction. Let me ask you, did you urge your views by word of mouth ? We talked of the censures. Did he hear you with patience ? Yes. Did he hear you with courtesy ? Of course. Did he say anything sharp or unkind or unbecoming to you ? Certainly not. 1 Supra, p. 184. X 806 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffo. There was nothing in his demeanour unkind or arbitrary? Nothing but what was kind and condescending Reasoning the matter with you? Yes. Canon Forde was there ? He was. Was he vicar-general ? Yes, one of the vicars ? Of Dublin? Yes. And I believe an eminent man in your own Church ? Oh yes. Was his manner also courteous towards you ? Certainly. Now, from whom did the proposition come that you stated yesterday, that the curates should go away or be put away, that missionaries should be sent for, and that the matter should be referred to Rome ? Who proposed that ? It all came from Cardinal Cullen and Canon Forde. When we could not agree about the censures, and Cardinal Cullen and Canon Forde were insisting that these bulls were in force in Ireland, I called on Canon Forde in a strong and decided way to give some answer to my paper ; and when he would give his answer to my paper I demanded that he would answer the objections I had written down in the paper. He suggested that if I would have the goodness to leave the paper, he would apply himself to it and give an answer in a day or two. I said by all means. Was it after that that the proposition was made about the curates going away and the missionaries coming, and the case being referred to Rome ? Yes. Now, sir, was it not an express part of that suggestion one of its specific terms that you should leave the place upon retreat for six or eight weeks ? What place ? That place. You understand me well. No, it was not. And that the missionaries should go there, and the curate be sent away, and that in the meantime the matter should be referred to Rome ? In. the meantime ? The matter was to be referred to Rome at once. Now, now, you don't understand me, I am sure. Was it part of the proposition towards an arrangement or reference to Rome, that you should go out of that for six or eight weeks ? No ; it was no part of a proposition. Was it suggested ? It was not. Not a word said about it? No. Rev. Robert O'Keejfe v. Cardinal Cullen. 307 No, not a word ? No. Cross- You swear that ? I do ; it was asked had I any objection e tf of " to make a retreat, and I said not. Father Was it a feature of the terms that if the curates were sent away you should go on a retreat for six or eight weeks ? What did I want going on retreat ? What sort of retreat ? I don't know ; go out of that ? Go out of Callan to any place you pleased ; that you should be out of Callan for six or eight weeks; was that the proposition, sir? That the curates should go away that you should go away in fact, that the two belligerent parties should be out of that, and the missionaries should go there and preach peace and religion ; and that while you were away the matter should be going on before the Pope, in Rome, and that there should be an ad interim administrator to conduct the affairs of the parish. Was all that proposed ? I never heard it. You never heard it ? I would laugh at it. You would laugh at it ! why you seem to laugh at the whole of it. We could not come to an understanding of Bull 4? 05 the binding nature of this document, the bull called Apostoliccs Sedis. Sedis. Both the Cardinal and Canon Forde were maintaining that it was of obligation in this country ; and I asked, how did they answer the points I made, and * what will you say to the evidence of Dr. Doyle. Isn't the same thing to be said in regard to the bull Apostolicce Sedis as to the bull In Ccena ?' The Lord Chief Justice : Did you say all this ? I said all this before and then ; and they said, ' If you have any doubt whether this bull Apostolicce is in force in Ireland, can't you write to Eome ? ' I knew what answer I would get from Rome if I wrote there. Then the Cardinal asked me, would I be willing to leave the settlement of the whole matter to Rome, and I said of course I would. He asked me would I abide by the decision there, and I said yes. Then we began to talk over the state of the parish in the meantime, pend- ing the decision from Rome ; and it was proposed that missionaries be sent to Callan some members of one of the communities in Dublin. Serjeant Armstrong : The Vincentians ? Well, there was no particular order mentioned to be sent ; the Cardinal said x 2 308 Court of Queen's Bench (Ireland). Cross- that perhaps missionaries could not be got on such short ^lon^f " n ti ce J an( i Canon Forde replied and said, f Oh yes,' said he, Father ' any gentleman you ask to go won't refuse your Eminence ; ' ) Keeffe. an( j ^ CLQn ^g sa j^ ? that I could get any curate I liked to attend the sick calls ; that they would write to Dr. M'Donald to send any curate I would like to name. To the Lord Chief Justice: That is, any curate of the diocese that I would wish to name ; and the Cardinal I believe it was that asked would I make any objection to go on retreat. I said, of course not. Then I was asked to put the terms of the agreement in writing. Serjeant Armstrong : His lordship now has taken down your representation, and I must refresh your memory. Was it part and parcel of the proposition, and in terms plainly expressed, that you should be absent from Callan on retreat, and that immediately ; and that the curates should be put away 9 For what time ? Until such time should elapse say six or eight weeks until the matter should be investigated at Rome ? Certainly not. Certainly not that is an answer. Certainly not. Was it a term of that proposition that you should be absent at all ? No ; but I said I had no objection to go on retreat. On retreat you would be absent ? Perhaps not ; I could make a retreat in my own house, Serjeant. And had you that in your own mind at the time ; though the curates you knew were to be sent away, that you would retreat in your own house ? I had nothing particular about it at all in my mind. Had you that in your mind, sir ? When you say that I should go to this, that, and the other particular place on retreat, I tell you a man can make a retreat in his own house. Did you think that was what the Cardinal meant ? I can't tell what he meant he meant I should go on retreat. In your own house ? I don't know where he mea,nt. Had you that in your mind when you entered into this arrangement? I had nothing particular in my mind. I did not intend to make a retreat in any particular place. When the Cardinal asked you had you any objection to Rev. Robert O'Keeffe v. Cardinal Cullen. 309 go on a retreat, and you said not, had you it in your mind Cross- that it should be in your own house you would go ? Certainly ^^f " not ; I had no particular place in view simply to go on Father retreat. But I tell you a man can go to his own house as _ e> well as any place else ; what I mean is, that it was not necessary for me to go out of my own house. Was it part of the proposition that when the curates were to go out of the way, you were to go too ? Certainly not. What a simpleton you think I am ! The very thing that the curates were trying to manage. I did not ask you whether you were a simpleton or not every one knows you are not. But did you hear that stated ? I did not hear it. And you were asked to reduce it to paper? Yes. And you said you would not do it then, but that you would do it at your hotel ? Yes. And they had no objection? None. And then you went away, and the next morning you came back again and produced the following paper ? Yes. (Counsel read the paper indicated, which commenced ' My good people, as I promised you,' &c.) * Now do you observe that you did not introduce anything into that about the curate who was to attend to the sick calls ? No. You did not ; nor did you say anything at all about that ? I had no business telling the people that. Nor anything about the curates being sent away ? I had no business telling the people about that ; it was not their affair. It was a private arrangement, and they had nothing to say to it. You did not say anything about yourself going on retreat? Certainly not. When the Cardinal read it, didn't he say, ' There is not a word in this about your leaving Callan ' ? Yes. And you took your hat and walked out ? No. What did you say? (Counsel reads from notes of direct examination) : " I said, ' What do you mean by that, my Lord Cardinal, my leaving the parish? Who would be there to look after the missionaries or the state of the parish ?' He said, * We will take care of that.' I then took my hat 1 Supra, p. 192. .*- 310 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. ' Adminis- trator' dis- tinguished from parish priest. in iny hand and my stick in my other hand, and I made my bow, saying, ' Good morning to you, my Lord Cardinal,' and retreated." That was beautiful ! I thought the proposal was so monstrous that I would not listen to it. You intended to bind the Cardinal by that as a true representation of what had occurred the day before? I intended to put in writing the form of agreement we had come to that day. It was in the evening I wrote it at the hotel. Yes ; did the Cardinal tell you that he never agreed to leave the whole case to Rome, except on the terms specifically stated between you ? No. That he would do nothing of the sort ? No ; we had no conversation next morning except what I said. Was it stated on the 27th, when you were talking of leaving the arrangement of the matter to Rome, that that Avas not to be listened to unless on the terms that yourself and the curate should go out of that in the meantime ? There was not any such thing stated. The parish was to be commended to the special care of the missionaries, the curates and yourself to go away on retreat, and an administrator to be appointed to attend to sick calls ? Nothing of the sort nothing The Lord Chief Justice : Let me understand. That an administrator was to be appointed ? I never heard that. Is an administrator a substitute for the parish priest ? When the parish priest is ill or incapacitated from any cause, as for instance from receiving censure, or in case he is un- able to discharge the duties of parish priest, then another clergyman is appointed to represent him in the parish, and to attend to it and act for him. And if he likes he may appoint an administrator ? He may appoint an administrator or another priest. What is the difference between them ? The parish priest has a title. The parish priest, as such, has what might be called fixity of tenure a life interest a freehold for life. Did you say anything at that time, at your interview, agreeing to an administrator being appointed ? Oh, certainly not ; oh, I would not do such a thing as that at all. It is monstrous. I am claiming protection and claiming justice; to Rev. Robert O'Keejfe v. Cardinal Gullen. 311 submit to be condemned! I never heard anything more monstrous than that. Serjeant Armstrong : If you were sick, could an adminis- trator be appointed ? Oh yes. Suppose now you were not able to attend to the duties at all ordered away, say for change of air, for half a year, to recruit your health could one be appointed ? Not without my consent. Can't there be one appointed by consent of the parish priest ? By consent of the parish priest. Without any delegation from a superior at all? Certainly. It is a common thing for a parish priest to name the curate as administrator. The Lord Chief Justice : Suppose now you were suspended, could your bishop send down an administrator to take posses- sion of your parish ? Oh, certainly not. Serjeant Armstrong : Was this what Canon Forde suggested ; that you should retire for some weeks from the parish, that the Cardinal should appoint an ad interim ad- ministrator, some one not in any way hostile ? No ; but that I should get any curate I pleased; that they would write to Dr. M'Donald to send any curate I wished to name, to answer sick calls during the time of the missionaries, because they don't attend to sick calls. The Lord Chief Justice : They don't do what ? They don't attend to sick calls ; all they do is to preach in the church. Serjeant Armstrong : And they would write to Dr. M'Donald to send a,ny curate you wished to name ? Yes. And that the Vincentians would take care of the parish ? Not the Vincentians. Are you sure they were not mentioned? Certainly; because when the Cardinal said that missionaries might not be got on such short notice, Canon Forde said that any gentleman he would ask would go. Are you sure they were not mentioned ? They were not. He might have suggested them to you ? They were not ; missionaries were named. And all the facts of the case were to be submitted to the Pope, and you would abide his decision ? That was all. Cross- examina- tion of Father O'Keeffe. Duties dis- charged by ' Mission- 312 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. But not that you should leave the parish in the mean- time ? I am very sure of that. Then this inquiry or conference, call it by what name you please, ended in nothing ? Ended in nothing. It was broken off the next morning ? Just so. The Cardinal was proceeding to investigate the matter then, because the suggestion of the arrangement broke off ? No ; the Cardinal put it out of hands on Friday, and took it back on Saturday. What do you mean by putting it out of hands? By referring it to Rome. On the terms you agreed to ? Mr. Purcell : Let what the witness stated be taken down he does not say that. Witness : The Cardinal put it out of his hands on Friday, by referring it to Rome with my consent. Serjeant Armstrong : Now, on the next morning, the 28th, when the Cardinal referred to the absence from the docu- ment of all mention of your leaving Callan, did you say you would not leave, and that it would take three regiments of soldiers to put you out of Callan ? Oh, not at all ; I never said such a thing. Oh, very well, you never did ? Oh no. Didn't you on that morning of the 28th refuse to intro- duce into that written statement which you prepared, anything about your leaving the parish? He did not ask me. Didn't he observe that it was not in it ? He did. And you said you would not go ? I did not. I said, ' What is the meaning of that ? Who would be there to look after the missionaries or the interests of the parish ? J And he said, * We will take care of that.' He did, and I made my exit. Did he say then, ' You must come back here and have the case finished ' ? He said no such thing he said no such thing. Did he there and then suggest several days in the next week upon which you should come back to finish the case ? He did not ; he had only a few. Now answer my question. He did not name any day ? No. Rev. Robert O'Keeffe v. Cardinal Cullen. 313 Didn't he peremptorily fix Friday, the 3rd November P Cross- Oh, certainly not. ' Did the Cardinal say in reference to this, ' This is not Father what I agreed to. I cannot agree to it ; it would be making a fool of myself? ' No, he said no such thing ; we had no conversation except what I stated. The Lord Chief Justice : Would there be any objection if the witness was now, to prevent mistake, to say what he represents to have occurred on the Saturday morning. Serjeant Armstrong : Not the least objection on earth. Do you mean all that occurred? Witness : On the 28th ? Serjeant Armstrong : Yes ; repeat now all that occurred. Second I called at Cardinal Cullen's house and was shown upstairs ^terview A with the to the room we had been in on the previous day. The Cardinal. Cardinal was there, and I simply handed him the paper. * Here is the paper, my Lord Cardinal, that I wrote yester- day.' He opened and read the paper. He said, ' Oh,' said he, ' that won't do at all. You put nothing in here about your leaving the parish as well as the curates.' I said, ' What do you mean by that ? ' ' Oh,' said he, ' that was the agreement, that you should leave as well as the curates.' * And who would be there to look after the missionaries and the interests of the parish? ' said I, and I took my hat and stick, and made my bow and retired. The Lord Chief Justice : Let me ask this question. During the time you sat in the room as you have described, with the Cardinal and Canon Forde, was anything produced and read to you, describing the authority or stating what authority there was for that particular business or trial if it was a trial which the Cardinal got from Rome ? No, there was no paper at all. I never knew anything about it for months : not until I served the writ ; and the first I heard of it was from Mr. Meredith. I was told the paper would not suit at all on Saturday morning. The Lord Chief Justice : No, I meant Friday. Serjeant Armstrong : As I understand it, my lord, Canon Forde was not there on Saturday morning at all. Witness : He was not there, I merely went there to bring back the paper. 314 Court of Queen's Bench (Ireland). Cross- Serjeant Armstrong : Yes, to be sure ; you stated fully all 'SToT you said ?-Yes. Father Now on the 3rd November lie wrote this to you. (Ser- ;_ e> jeant Armstrong here read the letter of the Cardinal, dated 3rd November, 1871.) 1 You knew he had no jurisdiction as Metropolitan. Did you not believe he was representative of the Pope by appointment ? I did not ask him. Had you any doubt of it? I did not know anything about it. Did you believe his statement that he was representative of the Holy See in that investigation ? Of course I believe he stated what he considered to be the truth. I would not acknowledge him to be the representative of the Holy See in sitting on me. I would acknowledge him to have authority from the Holy See to decide upon the validity of the censures passed upon me by the bishop and Dr. M 'Donald, but I did not acknowledge his authority to con- demn me. You would acknowledge his authority to acquit you ? Yes, certainly, to declare that the censures were bad. I was ill-treated most grievously. I do not think there was ever such persecution since the creation of the world as the pure unmitigated tyranny exercised towards me. Where is the 550Z. ? I suppose the lawyers have got it. Serjeant Armstrong then read Father O'Keeffe's letter of November 5th, 18 71, 2 in which he acknowledged the Cardi- nal's letter of the 3rd November, and described the state of Callan. * In this state of things your Eminence would not wish me to make you another visit. ... I call upon you to decide, as having authority to do so, that I have never incurred any ecclesiastical censure/ Now had he any authority? He had authority in connection with the autho- rity given him to hold the election at Kilkenny. Is the action against Cody, the poor-law guardian, over yet? Well, I had not time to attend to it; there is too much law business on hands. You stated in your letter that the Protestant gentleman was not only aware of the perjury of the priest in the law court, but in the great tribunal of penance. What do you mean by the 'tribunal of penance '? Swearing that I was 1 Supra, p. 193. 2 Supra, p. 193. R&v. Robert O'Keeffe v. Cardinal Cullen. 315 a suspended priest. When the penitent would not believe Cross- them, they would swear it and swear it on the altar. I told ^^"f " you I had a man here to prove that Father Neary held up Father the Sacrament on the altar, and swore by the body and blood eo e ' of Christ that I was a suspended priest. Why did you not say that you would or would not come up 9 I did not want to get into a controversy with him. You say that ? Yes. Had his Eminence authority ? He never had. I do not want the civil law to come to my aid. I want only the laws and constitutions of my own Church to come to my aid. It is my duty, Serjeant, to protest against tyranny, and I will do so while I have a voice. You are a man ; now listen to this (reading above letter) : ' I call upon you to decide that I have never incurred any ecclesiastical censure.' You are a logician ; now had he authority to decide that? I admit he had authority to decide that. Did not that involve the question whether there was a violation of the canon law ? Yes. Did you not admit in that letter that he had authority to decide that matter ? To decide the suspension, whether it was good or bad. Did you not admit that he had authority to decide that matter? To decide whether the suspension was good or bad ; not only had he authority to do it, but it was his duty to do it. He could not do that as archbishop ? He could do it as being appointed to preside at the election at Kilkenny. Could he do it otherwise than as delegate of the Pope ? As agent of the Propaganda. Is not the Propaganda the same as the Pope ? Yes ; it was competent for him to decide that matter, and I complained that he did not. I complained that I had been treated with the greatest injustice. Is it not the case that he decided against you ? He did not decide at all. Did he not suspend you ? He says he did, but he had no power. No man has power from Almighty God to calum- niate or slander his neighbour. 316 Court of Queen's Bench (Ireland). Cross- Had lie not jurisdiction to exculpate you ? Certainly, examina- How could he have jurisdiction to exculpate you if he Father had not jurisdiction to suspend you ? He should have decided O'Keeffe. mv right to vote at the election. I was qualified. The fact of his not deciding it was a condemnation of me without trial. (Serjeant Armstrong here read the Cardinal's letter of the 21st of October, 1871, intimating to plaintiff his intention of inquiring whether he had incurred suspension or excom- munication, or whether he had incurred irregularity.) 1 Did he not announce to you distinctly what he would inquire about ? I did not want to get into any controversy with Cardinal Cullen at all ; I did not like his language in that letter. Did you not know that he assumed jurisdiction to decide these questions ? I did not know exactly what he assumed, but I thought he assumed more than he had a right to assume. Do you swear you did not understand this passage in his letter as amounting to an assumption of authority ? Did you think he was assuming authority to decide whether you were guilty of an irregularity, and that he could punish you ? I would say so. And you went to him ? I did not go to him in virtue of a citation ; I went to him in a friendly way to confer with him and talk and deliberate over the matter, but I did not do any act that would bind me as having submitted to his jurisdiction to sit in judgment on me. When you went to his house on the 27th of October, were you thinking of that ? I was thinking of this, that I went to him simply in the capacity of a friend to a friendly conference, in order if possible to bring about peace in Callan, and in order that I might satisfy him fully that I was never validly suspended. Did you think he was assuming a jurisdiction to decide the question ? I wished to keep clear of it. I did not want to get into a controversy, but if he sent me a citation, I would not come in virtue of it. 1 Supra, p. 1 83. Rev. Robert O'Keeffe v. Cardinal Cullen. 317 FIFTH DAT. Crosg- examina- Friday, 16th May, 1873. tion of Father The cross-examination of the REV. MR. O'KEEFFE resumed by O'Keeffe. SERJEANT ARMSTRONG. Serjeant Armstrong: Mr. O'Keeffe, having received the Cardinal's letter of the 3rd of November, requesting you to come up, you replied to it in the letter I read. On the 6th of November he wrote to you as follows (reads letter). 1 You answered on the llth November, 2 and by that letter you declined to come up ? I did ; I knew at that time the decision he was going to give. And for that reason you refused to come up ? No, not for that reason. What reason ? Because I wasn't bound to go up. Now there is a letter of yours of the 4th of November. This is going back a little, and for this reason, it hasn't been yet read, the 4th of November, 1870, addressed by yourself to the Right Rev. Dr. Lynch, of Carlow : ' I have now com- menced a new suit in the Queen's Bench, nominally against one of my curates, but really for the purpose of getting evi- dence of Dr. Walsh's altar denunciations of me. I was non- suited on the previous occasion by the curate's evidence.' Of course that was a representation of the true state of your mind, the object of the action ? Of course. Against one of the curates, but really to get Dr. Walsh on the table, and on his evidence to have a foundation for proceedings against him ? I was nonsuited on the previous occasion by reason of the evidence the curate gave, which I knew to be untrue. Have you taken any steps to get redress from the Church ? I applied to iny bishop in the first instance. I got no re- dress from him. I didn't even get an answer to my letter. I applied to the Cardinal, but he took no notice of my letter, and I applied to go to Rome, and couldn't get leave to go. I asked for permission to go to Rome for three months, and I say I could get redress nowhere in the Church. Did you make an application then to the bishop in the letters now before the court ? I could make no other appli- cation. 1 Supra, p. 195. 2 Supra, p. 196. 318 Court of Queen's Bench (Ireland}. Cross- The application that you refer to ? Did they appear in the "tbTof " letters yesterday referred to ? Is that what you refer to ? Father No ; I wrote several letters to the bishop, complaining of the O'Keeffe. CQnduct Q f tlie cura tes. I think they are all in evidence ? No, they are not. Give any other letters, if you rely on them. I don't want to rely on them; I have evidence enough. I am merely stating a fact. We have a long correspondence between yourself and the bishop. Have you any other letters ? I wrote other letters. Where are they? They are not in evidence; I don't want them. (Serjeant Armstrong reads remainder of the letter to Dr. Lynch.) At the meeting at the Cardinal's house on the 27th of October, was the subject of your first suspension discussed ? Yes ; the Cardinal read the suspensions and other letters. And was the subject of your second suspension discussed ? I think we went through the whole of them. And the third suspension ? Yes, I think we went through all of them. And the suspension ex informata conscientia ? Yes, I think we went through them all. 1 think I showed them, and said that they were totally invalid. I really thought I convinced them. I wasn't contradicted. That was your own view ? Yes, I thought so. And of course the facts of the several actions which you had brought against the bishop and the curates were all men- tioned ? I suppose so. You must tell me whether they were or not ? I couldn't recollect everything that happened. Was the subject of the action against the bishop referred to ? The subject of the action against the curates was re- ferred to. The first action against the bishop ? The first action of all that was compromised ? Yes. The Cardinal was going into that, and I said, * My Lord Cardinal, there is no use going into that. If I gave any disedification, you got me to make an apology, and that was iny satisfaction for any disedification.' And he said, 'Very well, I won't go into that.' The matter was referred to as an action you brought? Yes. R&v. Robert O'Keeffe v. Cardinal Cullen. 319 Did you not admit the action was settled by the payment of 500Z. ? Did you not admit you got 550Z. in settlement of that action ? Of" course I did. and the Cardinal told me they ^ r xi t, i j.v O'Keeffe. were going to make me pay back the money. Yes ; because you put it in your own pocket. No matter, he told me that. Did he tell you the distinct arrangement was, the ladies were to get back the money ? did he tell you in substance that a part of the arrangement was that the money should be restored to the nuns, and that you kept it? No, he didn't say any such thing. He only referred to it in that way : ' We are going to make you pay back the money.' Did he refer to the fact that you kept the money con- trary to the agreement ? No. Did he say the nuns ought to get the money ? No, I don't think he did. Will you swear he did not? Did he say part of the arrangement was that the money should be paid back to the nuns, and that you ought to pay it? I don't swear he did. Will you swear he did not ? I rather think he did not. I don't think he said any more than what I have stated : 'We are going to make you pay back the money.' Did you ask him why ? No, I didn't ask him why. I said I was willing to do what was right with the money. Did you ask what claim they had on you, that you should restore the money ? No ; I wished to get out of it as quietly as I could. I didn't wish to get into conversation with him at all. Then the action against the bishop, in which you were nonsuited, was also referred to ? Yes. Did you complain you had been nonsuited in that ? I did. And that you had to pay the costs ? Yes, certainly. And didn't you know that was then to be revived on Father Neary's evidence ? Yes, I said that, and I thought it was at the time. Was the action then against Father Neary for what he wrote in the workhouse book ? Yes. Was that referred to ? I suppose it was. I have no dis- tinct recollection. I consider it was. 320 Court of Queen's Bench (Ireland). Cross- examina- tion of Father O'Keeffe. Did you not tell you had received 100Z. in that action? Yes, I suppose so. Then the action against Dr. M'Donald, in which the venue was at Wicklow was referred to ? Yes, I think so. And I take for granted you admitted that, what we'll call ' suspensions ' for identification's sake, were served upon you in some way or other ? Yes, I told him how they were served on me. I told him particularly how a double copy of the third suspension was served on me, and I can tell you now if you like to hear it. What do you mean by me liking to hear it ? Why, it was served on me in a railway carriage. Well, do you think there is anything wonderful in that ? There is something extraordinary. I was addressing my congregation on the Sunday before the trial of the action a.gainst Dr. Walsh, and I was reading the very letter the Serjeant is after reading now, and explaining to my people how anxious I was to keep out of court, for nothing to me was more painful than coming into a public court to explain the difference between ecclesiastics. That was the chief subject of discourse that day with me the llth December, I think. Two men came into the chapel at the time, having the ap- pearance of bailiffs. When mass was over, and I had given communion, I returned to the sacristy, to pass through it to my own house. The clerk said to me, ' There are two bailiffs waiting for you outside.' There were two bailiffs outside the door to serve me with a paper in passing from the sacristy through the yard to my own house. The clerk and my servant man put me out through the window of the sacristy in order to escape the men who were waiting outside for me, and I was enabled in that way to pass to my own house to take breakfast. The men remained about my place till about two o'clock in the day, coming and going, knocking at the door, and calling for me, and asking to see me. Then I hired a car to go to Gowran, and when they found I had taken this circuitous way to come to Dublin, having waited for me at the station at Kilkenny, they came on by train to Gowran, and I was served with the sus- pension in the train at Gowran. I don't know whether you heard of Sunday work like that, Serjeant. Of course you told the Cardinal about the citation you Rev. Robert O'Keejfe v. Cardinal Cullen. 821 got from the vicar-general to appear in the cathedral ? We Cross- went through all the papers ; he had copies of all the papers. e tf of And you went through that as well as the rest ? I should Father J O'Keeffe. say so. Then did the Cardinal speak to you about having a sus- pended friar saying mass in your chapel against the orders of the vicar-general? He spoke to me about a priest he was informed used to say mass. Will you swear he was not a suspended friar? I will swear he is not suspended to my knowledge. Do you know he was put out of his order? I don't ex- actly say he was out of his order, but I tell you what I know about him. He was a friar of the Augustinian order in Callan, and had gone on the mission to Australia, and after being some years on the mission in Australia he returned home. It is unusual when a friar chooses to go on the mis- sion to give him a letter of release from his obligations ; as a friar has vows, it is unusual to release him. from the per- . forman ce of his obligations. After being some years in Australia this gentleman came home, and he lived again in the Augustinian convent at Callan, and after being there for some time he expressed a wish to go on the mission to America, and he got this letter, and he showed me one from the Provincial, authorising him to leave the convent, and leave -subjection to his superiors, and go on the mission. When he went to America he was unsuccessful in getting any bishop to adopt him as a missionary priest, and he returned, and after he returned he lived with his father. His father is a parishioner of mine. He used to say mass in my chapel on Sundays and holidays. Did the Cardinal speak to you as to having read what we call the broadsheet, 1 containing the charges against your bishop, to your congregation from the altar? Hadn't he that paper in his hands ? He had. Did you not tell him you had read that in self-defence, and that you justified it on the same ground that you have stated from the chair ? My recollection is, he said, * Wasn't it an unhandsome thing for you to send this paper about the bishop to Cardinal Barnabo ? ' ' Well,' I said, ' 1 couldn't keep it. I was obliged to do it.' 1 See Appendix No. I., p. 577. Y 322 Court of Queen's Bench (Ireland). Cross- That is one of those you got printed (hands paper to iorTof " w ^ ness )' How many hundreds of them did you get printed? Father Between 500 and 600 ; I ordered 500, and the printer sent ' me 550. And you admitted that you read that from the altar ? I don't recollect that part of the transaction ; he found fault with me for sending that letter to Cardinal Barnabo. On your oath, didn't he say it was a shameful thing to have read that from the altar to your own people ? I don't think he did ; I told him before I would do it. Do you swear it wasn't a subject of complaint with the Cardinal ? I don't recollect that that was made the subject of complaint. Was it a subject of complaint your sending a paper of that kind to Cardinal Barnabo, making such very grave and serious charges against the bishop ? He said that it was un- handsome or unkind. Did he say it was still worse to read it from the altar ? I don't recollect his saying anything about reading it from the altar. I felt justified in reading it from the altar, but I didn't read it from the altar until I gave the Cardinal due notice I should do so unless he gave me orders, and I will tell you the parties through whom I gave that notice. Did you not justify yourself in having read it from the altar on the ground it was necessary to show the people what manner of man the bishop was ? I don't recollect that that was discussed. Wasn't it spoken of? I don't think it was. But now you say you were present as a priest, and that the bishop having reproved you, you said soinetftiing to retaliate ; that you were warranted by every principle of theology in defaming him in every way ?- Defaming is not necessarily to slander him. Do you swear you never slandered anyone ? Never. But defaming your antagonist in every way consistent with truth, is that your Christian principle ? I was justified in explaining and showing what sort of a creature it was that was calumniating me, and that is a principle of theology that cannot be contradicted, for it is necessary for the just defence of your own character. If it be necessary to explain or to state what sort of character he is that is Rev. Robert O'Keeffe v. Cardinal Gullen. 323 maligning you or calumniating you, you are warranted in Cross-