They were dealt with by the judges as follows:-- All of them agreed that the Roman Catholic Church in Ireland must be regarded entirely as a voluntary association based upon a voluntary contract like other religious bodies not established by law whether in England or in the colonies. Mr. Justice Barry held that the contract not to sue was legally binding, and he appears to have been supported in this view by Mr. Justice Fitzgerald and Mr. Justice O’Brien. On the other hand, the Lord Chief Justice held that the contract to abide by such a rule was altogether void, as it was "a rule of despotism, inconsistent alike with the liberty of the law" (with liberty, with law ?) "and with reason." He also thought it was contrary to public policy, as it put the character of the person affected by it at the mercy of an irresponsible master. With regard to the rescript Mr. Justice O’Brien held that all the old statutes which forbid in every possible form of language the exercise of any authority by the Pope in the Queen's dominions "had been impliedly repealed by subsequent legislation. The whole tenour of modern legislation not only sanctioned the doctrine that persons who professed the Roman Catholic religion might look up to the Pope as their spiritual head, but permitted those communications to take place between the Pope and the prelates appointed by him." All the other judges held that in some sense or other the rescript was illegal, but they differed as to the precise meaning which they attached to the word, and as to the inferences to be drawn from the principle. Mr. Justice Barry thought that Cardinal Cullen’s court was illegal, and that "no court in the country would lend its aid to the ecclesiastical suspension to enforce it." It did not, however, follow that the plaintiff, having agreed to be bound by it, ought not to be held to his bargain. Still less did it follow that, after consenting to its existence, he could treat the publication of its judgment as a libel. Mr. Justice Fitzgerald appears to have argued in this view.
The Lord Chief Justice, on the other hand, declared in very energetic language that the rescript was altogether illegal; that all the old statutes against the exercise of Papal jurisdiction were in full force; that though "the introduction in the pleas of the ordinance of the Pope Pius IX. had no doubt been covered with a slight fringe of contract," still "the defendant throughout his defence had unmistakably challenged for the rescript of the Supreme Pontiff an innate and independent authority." He also held that a consent to be bound by the laws of the Church of Rome must be limited to such laws as were not contrary to the laws of the realm, and that any law which empowered the Pope by any device, direct or indirect, to interfere with the internal affairs of the kingdom was opposed to the law of this country.
Apart from all legal and technical questions the case is one of very great interest. It sets in the very clearest light in which it could be set the principles which we have repeatedy stated in these columns as to the relation between Church and State under the principle which Cavour threw into so neat a form. The free Church is in fact a subject of the State, like a free railway company or a free joint-stock bank-that is to say, it is free to do what the law of the land permits it to do, and no more, It is free, that is, in precisely the same sense in which individuals are free, and in no other. The State and its laws are the unquestioned and unquestionable masters of the Church as they are of other persons, natural or fictitious, and the Church is simply a corporation pleading in the courts of the State, submitting the terms of the contract which connects its members to the State notions of law and morals, and to the State procedure, just as might be the case with any other body. The doctrine of free Churches in free States means in short State supremacy exercised for the common good of the whole nation in a moderate and rational way, but still with unmistakable force.
As to the particular questions which Mr. O’Keeffe and Cardinal Cullen have brought before the Irish Court of Queen's Bench, they do not appear to us to possess any very great general importance, though they are of some legal interest. The effect of a contract not to sue has been the subject of a great deal of discussion, and, as must always be the case in a country which likes to chip out its law by little bits instead of putting it once for all into a broad and intelligible form, it is impossible to say in a few words what the law upon the subject is. Of course no private contract can be permitted to exempt the parties from the general law applicable to the relation between them; but while this is fully admitted it does not follow that people ought to be prevented from contracting together not to take particular legal steps against each other. Nothing is more common than a clause in a contract of partnership or the like that all disputes between the parties shall be referred to arbitration, and it has been held that such contracts are valid. There would seem to be a good deal of weight in Mr. Justice Barry’s suggestion that there is a difference between contracts and wrongs. To make a contract, and at the same time to make it a condition that the contract is not in case of breach to be sued upon in the ordinary courts, is to oust the courts of their jurisdiction; but to say to a man, "I engage to allow you to say whatever you please about me in my capacity of a priest," is rather like saying to a surgeon, " Cut my body about as you please-- I give you full leave to do so." A wrong ceases to be a wrong if it is permitted, except, indeed, in cases where public policy comes in.
As to the question of the Pope's rescript, the result of the decision of the court is very obscure. How, if the action of the court under the rescript was altogether illegal in the sense of being forbidden by law and therefore of being criminal, a contract to submit to its decisions could still be binding, it is hard to understand, for such a contract would be a contract contemplating as part of its object the commission of a crime. Nor do we quite follow the language attributed to Mr. Justice Barry, who is said to have held that the rescript was illegal in the sense that "no court in the country will lend its aid to the ecclesiastical suspension to enforce it." Probably no one ever supposed that Cardinal Cullen’s court could enforce its decrees otherwise than by the indirect means of making Mr. O’Keeffe responsible for a breach of the terms of his contract; and how the rescript can be illegal enough to prevent the ordinary courts from enforcing the sentence of a person empowered by it to act judicially, but not illegal enough to render the contract to submit to his decisions invalid, is to us not intelligible. The judgment of the Chief Justice, though perhaps his language might have been more or less toned down, is very much the most direct and distinct of the four. Possibly the report does more justice to it than to the others. It is, however, highly probable that the matter will go further. Let it go where it will, the position of the Roman Catholic Church generally in the matter is as inconsistent with the general spirit of its claims as against civil society as anything can be. If there should be an Old Catholic secession in England, the Courts at Westminster, whatever they may then be, might easily have to decide whether the Roman Catholic contract did or did not involve the duty of submission to the Vatican Council. There would be nothing unprecedented in this. One of the Indian High Courts solemnly decided that a given caste had a right to have a particular image carried sideways and not fore and aft, in a given palanquin, down a given street, and the decision was executed and submitted to like another, though it is difficult to say what mysteries it did not involve.
Pall Mall Gazette, May 12, 1873.