in the first instance to assume that they would not, or could not take it. And that at all events it is not to be taken till after election; and that the question on the oath is therefore premature. But Mr. Heron had unequivocally stated he was a Roman Catholic previously; and if the electors had the conscientious belief that a person of that persuasion was not qualified to be a Scholar, would they not be grossly violating their duty if they had elected him? Suppose too, that all the candidates were Roman Catholics, and that some of them professed their readiness to take the oath, would the College be justified in admitting those, and excluding the rest?

Upon the whole of the case, I submit the Court is bound to decide that Roman Catholics are not eligible to Scholarships of Trinity College, Dublin; and that the electors have no power under the statutes of the College to admit them.

Mr. LONGFIELD, Q.C., on the same side :

:

The question which the Court has really to consider is, not whether a Roman Catholic be eligible to a Scholarship generally, but whether he be eligible to one of those seventy scholarships founded and endowed by King Charles the first, and which it is conceded, were intended by him for the benefit of none but members of the Established Church.

The question must be treated like any other question of trust, for a charity, for the institution of the Scholarship, as part of the constitution of the College itself; was in its origin a charity in the legal sense of that term.

The question must be principally argued on the statutes of the College, for I admit, that the acts of the legislature have but little to do with it on the one side or the other. Now it was said by the learned Counsel for the appellant, that the exclusion of Roman Catholics from the benefit of scholarships, if they were at all to be excluded, must be

solely the result of obstacles interposed by the general discipline of the College, which affected all classes alike. It is quite true, that this discipline is, in itself, sufficient to exclude them, but; independent of that, the intentions and object of the founders of the College, not only for the purposes of education, but for the advancement and support of the religion which they professed, would be manifestly contravened and defeated, by admitting to the Corporate Body of the College, persons whose religious tenets were opposed to Protestantism; and thus the intention of the founder of the charity raised of itself, a complete obstacle to the admission of Roman Catholics to Scholarships. That discipline demonstrates the intentions of the founder. It is said on the other side, that the oath prescribed to be taken by the Scholars, does not import or contain, according to its true construction, any denial of the authority of the Roman Pontiff in spiritual matters within this kingdom. The true construction, however is, that the oath does import this denial. Upon a comparison of the Scholars' oath in the charter of Charles, with the oath of supremacy in the act of 2nd Elizabeth, cap. 1., which every person promoted to any degree of learning in the University, was obliged to take; it will be found that the former is but a compendious form of the latter, thus the Scholar swears "profiteor me Regiam auctoritatem, serenissimi nunc Regis Caroli Secundum Deum summam esse in regnis Angliæ Scotia et Hiberniæ agnoscere et nullius externi principis aut pontificis potestati obnoxiam. (a) So in the oath of supremacy, the party swore "that the Queen's Highness is the only supreme governor of this realm, and of all other her Highness's dominions and countries, as well in all spiritual and ecclesias"tical things or causes as temporal, and that no foreign prince, person, prelate, state or potentate, hath or ought "to have any jurisdiction, power, superiority, pre-emi"nence or authority, ecclesiastical or spiritual within this (a) Ap. p. vii.

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realm, &c." Thus, the 'regia potestas nullius externi principis, aut pontificis obnoxia' in the oath of the scholar, was but a translation of, and imported the same thing as the oath of supremacy of Elizabeth. It is notorious that at that time it was a high misdemeanour to assert that the Pope had any spiritual authority in these countries, and that the law was not then obsolete appears from a passage in Rymer's Fœdera, vol. 19, A.D. 1630, stating the pardon of a person who had been convicted of having asserted that the Pope had such authority. The pardon was given to him on condition of his taking the oath of supremacy. A spiritual power was what the pontiff claimed, and not a temporal one. The denial of the jurisdiction of any foreign prince or prelate must be naturally interpreted to imply, or rather to express, a denial of the temporal jurisdiction of any foreign prince, and the spiritual supremacy of any foreign prelate. The intention of the framer of this oath will be more manifest if we look to the chapter, De cultu divino, (a) where the Provost and Senior Fellows are directed to take care that no pontifical or heretical opinion shall be maintained in College. The founder adds that no person shall be elected a fellow, "Qui ponti"ficiæ religioni quatenus a Catholicâ et orthodoxâ dissentit, "et Romani Pontificis jurisdictioni per solenne et publicum "juramentum non renuntiaverit." Compare this with the fellows oath, (b) and it will be seen that the part relating to the jurisdiction of the pontiff is exactly in the same terms as in the scholars oath. Here then we have the framer of the statutes putting his own interpretation upon the oath which he prescribed, viz., that it was a denial or renunciation of the Pope's jurisdiction, that is, of course, of every jurisdiction which he claimed, and which it was illegal to attribute to him. This allusion to the fellows oath occurs

(a) Ap. p. ix.

Porro," &c.

(b) Ap. p. vii.

in the statute de cultu divino, (a) and proves clearly that it was intended as a preservative against Roman opinions, and the argument on the other side is reduced merely to this, that whereas there are two clauses in the fellows oath intended to oppose Roman Catholic doctrines, there was only one such clause in the oath prescribed to the scholars. Indeed the portion peculiar to the fellow's oath was not very stringent, "pro facultate mea repugnaturum omnibus "opnionibus quas vel pontificii vel alii contra sacræ scrip"turæ veritatem tuentur constanter repugnaturum.”(b) Now many Roman Catholics could conscientiously swear this, for they do not admit that any doctrine of their church is, "contra scripturæ veritatem."

It is objected, however, on the other side that it is premature to discuss the oath of the scholar, or to raise any inference or found any argument upon it; that the candidate may possibly take the oath, and, if he does so, it is a question for his own conscience to which it may be quite reconcilable. This is a fallacy, The oath is not a question merely for the party taking it, but is a proper test of the religious doctrines of the party to guide the electors in knowing who are properly capable of being elected, and who are necessarily ineligible. It is not the candidate's conscience that is alone to be satisfied, and is to put a construction on the oath, but it is the opinion of the founder of the charity and framer of the oath, of what ought to be his conscientious views on the subject. The founder of the charity confers a privilege which he intends to restrict to persons of certain religious opinions, and from which he intends to exclude persons who hold certain other religious doctrines, and he prescribes an oath to the candidate who seeks the benefit of this privilege in order to test to which of those classes he belongs. At the election it is the duty

(a) Ap. p. ix. "Præterea," &c.

(b) Ap. p. vii.

of the board to consider whether the oath was intended to exclude any class, but if Mr. Heron was elected, then, but not until then, would the construction of the oath be a matter entirely for his own conscience. It is manifest, then, from the nature of the case, that the donor and not the recipient of the benefit, is the person whose meaning and view of the oath is to be the construction of it, and not the conscience or opinion of him who has no right to dictate its terms, and is not obliged to accept the benefit if his conscience cannot take the oath in the sense which is most consonant with the views and intentions of the donor. Of the intention of the founder of this charity that the body corporate should be Protestant no doubt can, I think, be entertained on a consideration of the entire charters and regulations. And less strong circumstances than arise from the terms of this oath, or from the discipline of the College, have been held to indicate and test the religious opinions of persons as not coming with the intention of the founders of the charity. In the case of The Bedford Charity,(a) Lord Eldon inferred from much slighter circumstances, that Jews were not intended to participate in the benefit of the charity. One circumstance which shewed the design of the charity was, that girls were required to send in their Christian Another was that the children were ordered to attend some place of worship every Sunday, that is on a day on which, under the Christian religion, attendance on worship is peculiarly imperative, and his Lordship says, "It is not necessary to go through all these particulars, because it seems to me that Jews resident at Bedford, acting conscientiously, could not permit their "sons to attend this school. I am, therefore, clearly of opinion, that there is no pretence to say that they are entitled to attend." Those words are exactly applicable

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(a) 2 Swanston's Reports, 530.