MASSES FOR THE DEAD

Dominion, Volume 12, Issue 265, 5 August 1919, Page 7

MASSES FOR THE DEAD

DECLARED LAWFUL BY THE HOUSE OF LORDS OPINION OF THE EMPIRE

Allowing the appeal of Cardinal Bourno and the £ev. Terence Donelly, the House of Lords recently decided that gif't, of personal estate left ,by tho will of Edward ligun to pay for Masses for the dead were valid, l'he testator, an Irishman, who had been a. butler in London, bequeathed ,£3OO to the Bishop of Ar-' ilnsth, hoping thai the prelate would pray for him. ,£2OO to the Jesuit Lathers, Farm Street, .£2OO to Westminster Roman Catholic Cathedral, J2IOO to the Dominican leathers. Black Abbey, Kilkenny, and i£loo to the .Franciscan Fathers, Kilkenny, all the money being intended to pav for Masses.

"Mr. Justice Eve had decided that the cift for Masses were void, and when Cardinal Bourne, representing AVestminster Cathedral, and the Rev, Terence Donelly, for the Jesuit Fathers, appealed, the Court of Appeal upheld the decision. The case then came to the House Lords. Catherine Broderick, of Kilkenny, representing the next-of-kin, was the respondent. An Anxious Duty. "The Lord Chancellor, moving that the appeal should be allowed, said it was u dillicult and extremely important case. Their Lordships could not, in his view, escape the dutv, anxious as it undoubtedly was, of overruling decisions which had been treated as binding for generations. Unwilling as iie was to question old decisions, lie would be able, if h.s «e» r prevailed, to reflect that Their Lordships would not within a short period of time have pronounced to be valid lesaoies given for the purpose of denying "some of the fundamental doctrines of the Christian religion," and have held to be invalid a bequest made for the purpomi of celebrating the central Sacrament in a creed which commanded the assent of many millions of their Christian fellowcountrymen. They would have the satisfaction of deciding that the law of England corresponded upon this important point with tho law of Ireland, of tholr great dominions, and of tho United ' States of America.' A decision basod, as lie believed this to bo based, upon a sound view of the law, might reasonably .-ippeal to these two powerful considerations of policy, as against the admitted impolicy of disturbing old conclusions. Historical Review. ' Having reviewed tho Acts of Parliament since the time of Henry VIII., Lord Birkenhead said the authorities had led him to the following conclusions: 1. That at common law Masses for tho dead were not illegal, but, on the contrary, that, dispositions of property to bo devoted to- procuring Masses to be said or sung were recognised both by common law and by statute. (2) That at the date of the passiug of 1 Edward VI., c. 14, no Act or provision having tho force of au Act had raadc Masses illegal. . .. (3) That 1 Edward VI., c. 14,,jaid not itself make .Masses illegal, or j-rovido that proitorty might not thereafter be given for the purpose of procuring Masses 'to bo said or sung. It merely confiscated property then held for such and similar purposes, and subsequent legislation was passed'to confiscate property afterwards settle-el to such uses. This was oertainly true of 1 Eliz., c. 24, and might oe true of 1 Geo. 1., o. 50. (4) That, as a rrsnlt of the Acts of Uniformity, 1549 and 1559, Masses crcnino illegal. The saying or singing of Masses was a penal ofteuce from 1581 to 1791, and no Court could enforce uses or trusts intended to be devoted to such uses.

(5) That noither contemporaneous exposition of the Statute 1 Edward VI., C. 14, nor any doctrine closely related to it in point of date, placed upon it the construction adopted in West v. Shuttleworth. The principle of that decision was certainly r.flinhed in Duke and in Roger on Legacies, but the' authorities cited on its belialf not only did not support it, but in some cases contradicted (B) That the 1 substratum of the decisions .which held such uses and trusts invalid perished as a consequence 01 tho passing of the Catholic Relief Act, and thereafter their Lordships might givo free play to tho principle ccssante nw tione legis cessat lex ipsa. ' (7) That the current of decisions vhicn. held that such trusts were ipso f;>cto superstitious and void began with west v. Shuttlewth, and was due to a misunderstanding of the old eases.

No Unbroken Line of Authorities. If there had been,, in fact, an unbroken line of authorities dating back 300 years, then it would have been a matter for grave discussion whether the House would consent to break that chain. The authorities, however, were only uniform in result. Some depended upon statutes, some on the principle that no religion other than that by law established could be recognised and protected by tho Courts, while others depended upon a misunderstanding of the ancient decisions. ~ "If," said the Lord Chancellor, mv view is well founded, citizens of this country have for generations mistakenly held themselves precluded from making these disposition. I cannot conceive that it* is my function as a Judge of the Supreme Appellate Court of this country to perpetuate error in a matter of this kind. The proposition crudely stated really amounts to this, that bsc.iuso members, of the Roman Catholic faith have wrongly supposed for a long period of time that' a certain disposition of their property was unlawful, and have abotninod'from making it, we, who are empowered and bound to declare the law, refuse to other members of that, Church the reassurance and the relief to which our view of the law entitles them. I cannot, and will not, be a party to such a proposal." . Not Superstitious. The conclusion, therefore, so far ns ho was concerned, was that a gift for Masses for tho souls of the dead ceased to be impressed with the stamp of superstitious use when Roman 1 Catholicism was again permitted to be openly professed in this country, and that thenceforth it could not be deemed illegal. This was not to say that there were now no superstitious uses, or that no gift for any religious purpose, whether Roman Catholic or other, could he invalid. Such cases might arise, and would call for decision when they did arise. But the cumulative effect of tho various Emancipation Acts was to remove from the doctrines of the Roman Catholic faith every stigma of illegality. GuT* inter vivos or by will might now be made to build a Roman Catholic church or to erect an altar. He was content that his decision should not involve their Lordships in the absurdity that a Roman Catholic citizen of this country might legally endow an altar for his community but might not provide funds for the administration of that Sacrament which was fundamental in the belief of Roman Catholics, and without which tlho Clnireh and tho Altar would alike bo useless.

Lords Buckmaster, Atkinson, and Purmoor concurred. The One Dissentient. Lord Wrenbury dissented, and asked whether it was expedient and in accordance with principles upon which the llouso had often acted that they should substitute their own opinion upon construction for an opinion of such antiquity, and one which had been so long unchallenged, as Lord Cottenham's decision in 1835. If completo freedom of religious belief, wnicb all would, he thought, to-day be desirous of giving, ought to be supplemented by removing illwalilv from dispositions such ns were in question in this case, the matler was, lie thought, one for the Legislature. The appeal was allowed. The judgments occupied over three hours in delivery.