Father Knox executor, and gave him 307. for his trouble.

As regarded the plea

of non-exception, that was a formal allegation on which a suitor rarely won, but in this case there has been quite enough to justify it, there being an erasure in one of the documents, and the writing being neither Mr. Hutchinson's nor any lawyer's. However, it could not be contended that these instruments had been duly executed. As regarded the issue of capacity, it was remarkable that the failure of Mr. Hutchinson's bodily powers had not forced itself sooner on the attention of the fathers of the Oratory than they stated it had done. Still the evidence of Dr. Teggart was to the effect that in 1858 there was general paralysis of one side, and not a mere paralysis of one side of the tongue. The question, therefore, was whether the testator, whose capacity had been blunted by paralysis, had not been subjected to undue influence-influence which might have been unconscious to the very agents who executed it, seeing that they were themselves under its sway. It was plain that the testator felt in a morbid degree the duty of obedience, and of merging himself in the interests of the order to which he belonged. In the book which he was correcting just before he died, he described the various miraculous transportations of the holy house of Loretto, but evidently feeling some alarm lest other persons should not share in his own faith, he wound up by inculcating the duty of surrendering one's self to the decision of the Church, remarking that any one who doubted the story made himself more intelligent than the great body of the faithful, more sagacious than the saints, much wiser than the supreme pontiffs, more prudent than the sacred congregation of rites. The witnesses had all denied that the deceased had received extreme unction in September, 1860, but he had himself told Mr. Smee that he had done so. Either, therefore, he was under a delusion on the subject, or he was much worse than the fathers of the Oratory supposed, with the exception, of course, of Dr. Faber, who must have administered the rite at Sydenham, if it was administered at all. The following witnesses were then called::

Mr. Smee, the defendant in the suit, said he had lived with Mr. Hutchinson on the most intimate terms while he was at Cambridge. In December, 1845, witness went to Cambridge, and saw Mr. Hutchinson, to talk about his change of religion. He found he had gone to Birmingham. Witness followed him to that place, and spoke to him, but only for a few minutes. Witness saw him at his own house for about three weeks after his conversion. He stated that belief in implicit obedience to a head teacher was a paramount duty. He said the truth was of more importance in mercantile matters than in religion. It was of less importance than faith, and second to obedience. In March, 1857, witness met the testator in Doland's shop. He said he was going to Syria the next day. He called upon witness before he went, and he had then a difficulty in swallowing, and witness formed that moment a decided opinion that he had mortal organic disease of the brain. The testator wrote letters from Syria of the most interesting description. When he returned from Syria he was decidedly better in general health, but witness could still see there was the disease existing. In February, 1860, witness went up to the Oratory and took him some money which was owing to him in connexion with a family affair. He went all round the establishment with him; he then observed him once to roll, and that was an indication of paralysis. From February to September, 1860, testator had never gone to his house. In September witness went to Sydenham to see Mr. Hutchinson, and watched him get into his carriage, and saw him sit as if in a bunch, which he well knew was a sign of the disease. When witness saw him he was very much excited; he told him he had

had extreme unction. He seemed to be in a stupid state, or like a man intoxicated. His articulation was bad; he saw at once that the disease had progressed. He did not remark any delusion about him, but he was in a stupid state; it seemed rather an impairment of the faculties. Witness saw him again go out in his carriage, and he again sat in the same way. Witness often saw the testator in 1862. There was no difficulty in getting access to him at that time. In 1860 he appeared to have no affection for any one, but he was quite altered after that, and took a kindly interest in every thing. In 1863 witness called upon him; he said he was dying, and said he had had extreme unction. Testator did not seem to recollect what had taken place with regard to his illness in 1860. Witness never spoke to him about the way of leaving his money at any time. Witness went to the Oratory after the death of the testator, and saw Father Rowe, and asked if there was any will. He seemed to evade the question, and afterwards left the room and brought back Father Knox, who said there was a will, and he was appointed executor.

Cross-examined.-Witness attended the funeral of the testator, and he stated that a name was given to the testator in the books of the cemetery which would prevent people from knowing who was dead. The name given was Anthony; his real name was William, not Anthony.

Miss Elizabeth Mary Smee, the daughter of Dr. Smee, recollected seeing Mr. Hutchinson in 1858, after his return from Syria. She observed that he had a difficulty of swallowing, and his voice had not the same tone, but she could understand him perfectly. In September, 1860, she went to Sydenham, to pay Mr. Hutchinson a visit, with her mother. She was struck with his manner; he appeared very feeble, and disinclined to conversation. He said he had been very ill, but it seemed a great trouble to him to talk. She did not think that to a great portion of the conversation he listened at all. Witness saw him several times in 1862, when he seemed to be quite well.

Mr. Erasmus Wilson, surgeon, was acquainted with deceased, and attended him professionally for the first time in 1856. He was then very much debilitated and very hoarse. Speech was very difficult for him. He found that the hoarseness depended upon paralysis of the nerves supplying the tongue and throat. One half of the tongue was smaller than the other half. The paralysis at that time must have been quite recent. He had also constipation, which witness regarded as arising from want of nervous power. The disease got rapidly worse during the next year. Witness advised him to travel. He went to Syria, and when he returned he found that, although stronger in general health, the disease had greatly increased. There might be paralysis without its affecting the brain. He believed that the seat of the disease was at the base of the brain, but whether extending to the brain he could not say. The state described by Miss Smee seemed to be a general prostration of the nervous system. The disease would possibly remit in this sense, that it would not appear so great while his bodily health was improved.

Dr. Bennett, having heard the evidence of Mr. and Miss Smee, was of opinion that Mr. Hutchinson at that time had disease of the nervous system, but he could not tell the state of his mind. He thought the case was one involving disease of the base of the brain, and the tendency of such a disease was to impair the faculties.

Dr. Deane having addressed the Court upon the effect of the evidence,

His lordship said he should wish to hear any observations upon the question of

costs.

Dr. Deane relied upon the state in which the testator was found immediately after the execution of the will and codicil, the alteration of intention expressed by the last will from what the testator had previously entertained when he made his will in 1855, and the inconsistency of the will of 1860 with what he had stated both before and after making it. He considered there was, under these circumstances, a case requiring investigation which justified Mr. Smee in raising an opposition to the will.

The Judge-Ordinary (without calling upon Mr. Karslake for a reply) said the case presented on behalf of the plaintiff was a very strong one, and having heard the evidence for the defence, he felt convinced that no one would doubt that the decision which the Court must arrive at would be in favour of the validity of the will. His lordship much regretted that this litigation should have taken place ; at the same time he would do every justice to the motives by which Mr. Smee was actuated. It did not seem to have arisen from a desire to possess himself of his relative's property, but from his sincere regard for him, and for his religious welfare. On the other hand he did not believe that the testator, in acting as he had done, was actuated by any dislike towards his relatives; but he was a man of strong religious feelings. So also was Mr. Smee, and both men having these strong opinions, very naturally took different views. Looking at the letters written in 1856 by this light, they might easily be understood. The issue he had now to try was whether the will and codicil executed by the testator in July and August, 1860, was made while he was of sound mind, and whether there was any undue influence used to induce him to make such a will. The answer on the part of the defence was that the testator had for years been afflicted with a disease which impaired his intellect, and on that question the Court had to look to the positive evidence which appeared to show that the testator could not be otherwise than a person of sound mind. If, as it was proved, the testator had acted upon all occasions in a perfectly rational manner, and showed a clear knowledge of what he was doing, and capacity for understanding business, the evidence of scientific men as to what might possibly have been the tendency of such a disease, could not weigh against it. The medical gentlemen had stated that they could not undertake to say that his mind was affected by the disease. On the other hand there was distinct evidence through the different years from 1858, when he was travelling abroad, that he was not only a man of perfectly sound mind, but a person of great ability. In 1860 his three friends, who had an opportunity of seeing him often, spoke of his capacity to understand business; and as the period approached when the will was executed the evidence was stronger and stronger in confirmation of his soundness of mind. There were also the two letters written on the day of the execution of the will, showing him to have been in his ordinary state of mind. The will was made in July, and the codicil in August, and it was not till September that the testator was seen by Mr. Smee; therefore, even if he had at that time been of unsound mind, it would not invalidate the will which was made two months previously. Moreover, there was the very letter of Mr. Smee himself, written after he had seen him, in which he said that until he saw his (the testator's) letter he should not have supposed he was unwell. The evidence of the medical men was all to the same effect-that is, nervous disease, partial paralysis, beginning probably in the base of the brain, the disease increasing, and finally causing death, but all of them say that such a disease might go on without the brain being affected, and they say that they saw no symptom of unsoundness of intellect. It then appeared that in 1862 the testator was establishing a library, and himself making a catalogue

of the books, and he was correcting the proof sheets of his own book, which he published; and that book, which his lordship had taken an opportunity of reading, although it showed that he was a man of strong faith, and fully believed in such matters as Catholic miracles, which other people might not have such implicit faith in, still it was a book which no one could have written without being in full possession of his intellect. On the other side the evidence totally failed to prove that there was any disease of the brain. Then on the subject of undue influence, a case had been cited in which the Master of the Rolls appeared to have used certain expressions which were no doubt applicable to the facts connected with that case ; but the present case was wholly destitute of any facts to which such observations could apply, beyond the dry fact that the testator had left his paper to Father Faber. There was no evidence whatever of undue influence. The will was made in the most proper and natural way through his attorney, and there was a total absence of any fact showing that any person in the Oratory had exercised any influence over him. Under these circumstances he had no doubt whatever as to the validity of the will. As to the costs, the principal guiding of the Court in such matters was that where the objections appeared to be reasonable it had been the habit of this Court to relieve the unsuccessful party raising the objection from the burden of paying the costs. His lordship could well understand the jealousy with which Mr. Smee would look at a will made under such circumstances as this was, but that was no ground for coming to the Court. There must be a reasonable cause of suspicion that the will was made under undue influence. On the contrary, the evidence in this case was overwhelming, and he felt that he could not do justice without pronouncing upon the will, and condemning Mr. Smee in the costs.

V.

" ESSAYS AND REVIEWS,"

WILLIAMS, Appellant, v. THE LORD BISHOP OF SALISBURY, Respondent. WILSON, Appellant v. FENDALL, Respondent.

(Judicial Committee of the Privy Council.)

These were appeals from judgments delivered by Dr. Lushington in the Court of Arches, whereby the defendants (the present appellants) were found to have published and maintained, in a well-known collection of Essays called " Essays and Reviews," certain doctrines and opinions contrary to the teaching of the Church of England. Each of them was condemned to suspension for one year ab officio et beneficio, was monished not to offend in like manner for the future, and was condemned in costs.

In the first case the proceedings were instituted against the Rev. Rowland Williams, D.D., Vice-Principal and Professor of Hebrew, St. David's College, Lampeter, Vicar of Broad Chalke, Wiltshire, founded upon certain passages in the Essay entitled Bunsen's Biblical Researches." In the second, against the Rev. Henry Bristow Wilson, Vicar of Great Staughton, Huntingdonshire, the author of the Essay entitled Séances Historiques de Genève; the National Church." The appeals were heard before the Archbishop of Canterbury, the Lord Chancellor, the Archbishop of York, the Bishop of London, Lord Cranworth, Lord

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Chelmsford, and Lord Kingsdown. Each of the appellants argued his own case The Queen's Advocate, Mr. Coleridge, Q.C., and Dr. Swabey, appeared for the respondents.

The Lords of the Committee, before whom the appeals were heard, were present, with the exception of the two Archbishops, at the delivery of the judgment.

The following judgment was read by the Lord Chancellor :-These appeals do not give to this tribunal the power, and therefore it is no part of its duty, to pronounce any opinion on the character, effect, or tendency of the publications known by the name of “Essays and Reviews;" nor are we at liberty to take into consideration, for the purposes of the prosecution, the whole of the Essay of Dr. Williams, or the Essay of Mr. Wilson. A few short extracts only are before us, and our judgment must by law be confined to the matter which is therein contained. If, therefore, the book, or these two Essays, or either of them as a whole, be of a mischievous and baneful tendency, as weakening the foundations of Christian belief and likely to cause many to offend, they will retain that character, and be liable to that condemnation, notwithstanding this our judgment. These prosecutions are in the nature of criminal proceedings, and it is necessary that there should be precision and distinctness in the accusation. The articles of charge must distinctly state the opinions which the clerk has advisedly maintained, and set forth the passages in which these opinions are stated; and further, the articles must specify the doctrines of the Church which such opinions or teaching of the clerk are alleged to contravene, and the particular Articles of Religion or portions of the Formularies which contain such doctrines. The accuser is, for the purpose of the charge, confined to the passages which are included and set out in the articles as the matter of the accusation; but it is competent to the accused party to explain from the rest of his work the sense or meaning of any passage or word that is challenged by the accuser. With respect to the legal tests of doctrine in the Church of England, by the application of which we are to try the soundness or unsoundness of the passages libelled, we agree with the learned judge in the Court below that the judgment in the Gorham case is conclusive :

"This Court has no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be the doctrine of the Church of England. Its duty extends only to the consideration of that which is by law established to be the doctrine of the Church of England, upon the true and legal construction of her Articles and Formularies."

By the rule thus enunciated it is our duty to abide. Our province is, on the one hand, to ascertain the true construction of those Articles of Religion and Formularies referred to in each charge, according to the legal rules for the interpretation of statutes and written instruments; and, on the other hand, to ascertain the plain grammatical meaning of the passages which are charged as being contrary to or inconsistent with the doctrine of the Church, ascertained in the manner we have described. It is obvious that there may be matters of doctrine on which the Church has not given any definite rule or standard of faith or opinion; there may be matters of religious belief on which the requisition of the Church may be less than Scripture may seem to warrant; there may be very many matters of religious speculation and inquiry on which the Church may have refrained from pronouncing any opinion at all. On matters on which the Church has prescribed no rule, there is so far freedom of opinion that they may be discussed without penal conse quences. Nor in a proceeding like the present are we at liberty to ascribe to the Church any rule or teaching which we do not find expressly and distinctly stated, or which is not plainly involved in or to be collected from that which is written.