our criminal law, which admits a dying declaration in evidence. But with what cautious circumspection is it admitted? The death of the party who makes the declaration must be the subject of inquiry, and the circumstances of the death the subject of the declaration, which in some cases may be indispensable to identify the murderer. I could not but remember the prudent suggestion of one of our most learned and experienced judges, who, in Fitzgerald's case (Irish Circ. Cas., 169), says: "Every one knows that in the state of languor in which dying persons generally are, their assent would easily be got to statements which they never intended to make, if they were but ingeniously interwoven by an artful person with statements which were actually true. That such has been the case here I do not mean to say, but at the same time, were I to admit the declaration which is now offered in evidence, I should be opening a door to great abuse.”

Mr. Coyne has stated that he did not use any importunity; but if he considered himself conscientiously bound, in the discharge of what he must have felt to be a sacred duty of his office, to put questions and make suggestions to the weak and dying man which might not be easily parried without the energy of health and the vis inertia of undisturbed conviction, I can well understand how, under the peculiar circumstances in which Mr. Coyne then stood, he may have succeeded in obtaining a languid assent, which would not have been volunteered. Mr. Coyne himself, not John O'Malley, answered the objection of Ellen O'Malley to her husband's alleged injunction. Would not this indicate, either that Mr. Coyne naturally considered himself as the interpreter of John O'Malley's wishes, or that the latter was too weak to deal with the objection, or did not desire to prolong the discussion? In any view, the scene is imperfect, the termination is abrupt. And indeed, in another part of his affidavit, where Mr. Coyne charges this afflicted widow with a readiness to barter the faith of her children, he says he told her "if they were given up according to the wishes of her husband, they would be taken care of." These are the very words of Mr. Coyne himself. The wishes of the dying husband were, he says, to have the children "given up." According to the previous statement, such a wish was not expressed by John O'Malley to his wife, and this is made more conclusive by her objection to what was expressed. How is this to be reconciled? Mr. Coyne has obviously mixed up what he may have suggested to the dying man under a solemn sense of duty at the critical period of the aeministration of the sacramental rite. It may have been proposed by the Sisters of Mercy that the female children would be received into the convent, where William O'Malley has now placed them. We have no account from those ladies of what took place when they were present. But Mary Byrne has in her affidavit given a very remarkable account of what took place immediately after Mr. Coyne had left the house. If the proposal was to give up the children, nothing can be more natural, or more probable in its substance, than the account given by Mary Byrne of what she saw and heard. The husband was at the point of death; the wife, with one little infant, the new-born babe, baptized in her own faith, and all her children of tender years. None as yet had been withdrawn by her confiding husband from the

influence of the mother's teaching and the mother's love-that now, when she would be left a widow, she should give up her children, each and all, to ecclesiastical custody! Whatever may have been sad or done in the presence of the priest, or of the Sisters of Mercy, when nature resumed her sway, and at once appealed to the heart of the husband and the father, I cannot disbelieve the pithy account, con deased in one sentence of the affecting letter to her sister, written soon after her sad bereavement, where she speaks of "how a priest and two of the nuns thought to come round me in presence of my poor dying husband, but I baulked them completely. John did not blame me for what I told them, for after they went away he desired me to bring up the children in the way I always brought them up." The Rev. Mr. Seymour states, in his affidavit,-"That at the last interview with the said Mrs. O'Malley a few days previous to her death, she indignantly denied the truth of the report that she intended to have them brought up in the Roman Catholic faith; and alleged, as one of her reasons, that her husband's dying wish was that they should be brought up in her own persuasion as Protestants; and that her husband frequently, on previous occasions, expressed the same desire." Here, then, we have the dying mother's account of what were the last wishes of the dying father: a double testimony, given in the presence of death, and sealed with all the solemn sanctions of eternity. If doubt there were as to the true import of his dying wishes, the consistent course of his life in the training of the elder children, and the remarkable fact of his having so recently allowed the youngest child to be baptised in the Protestant faith, would furnish the best comment for the guidance of a court of justice, which looks to actions and conduct as the best key to the discovery of intentions. Could he have intended that she should hand over the babe, which he did not even require to be baptised a Roman Catholic? It struck me as somewhat remarkable that from the month of March, 1857, when the father died, until the month of August, 1858, neither the Rev. Mr. Coyne nor any other person came forward to assert that the father of these children had on his death bed expressed his dying wish that all or any of them should be educated in the Roman Catholic faith. Mr. O'Hagan suggested to me that he understood some application had been made at the Tuam workhouse on the subject, and that the answer was that they had not power to alter the registry. It thus appears they knew their duty. But this does not consist with the explanation given by the Rev. Mr. Coyne. He says "From the course which Mrs. O'Malley pursued after the death of her husband, deponent thought it useless to interfere further in the matter." This is quite intelligible, if the children were to be "given up ;'. but if they were simply to be brought up as Roman Catholics, why should no application have been made before the 11th of August by Mr. Coyne, who was a chaplain of the workhouse, or by William O'Malley, the anxious uncle? Why should the guardians have been then set in motion to violate their known duty, and set the registry and the law at defiance? I have not adverted to some topics which have been im ported into the argument of this case, and have much increased the

pain and pressure of the trying duty which has unavoidably devolved on me to discharge. It has been said that Jane Robinson is only made use of by Miss Plunket, in order to buy up the custody" of these orphans. It is enough for me to see that Jane Robinson is so nearly related to the children that it is proper for me to interfere for their protection, and that her interference is bonâ fide; and on the reference for which the order provides, the way in which she proposes to have them maintained and educated, will be investigated by the Master. The custody of the children remains under the care of the court,and is neither to be obtained by wealth nor to be denied by poverty. It is the free gift of the law, to which all must do homage, "the least as feeling its care, the greatest as not exempted from its power." In the case of Alicia Race, with the details of which I have been furnished by the kindness of Vice-Chancellor Kindersley, the provision made came from benevolent strangers, who desired to give the child the means of asserting her English right, and the court acted on the undertaking of counsel to have a maintenance provided. It is obvious that William O'Malley himself has neither the means nor the inclination to support these children without the aid of strangers. But in the case of orphans so situated there must at least be the power of having them publicly maintained as destitute poor, entitled to be secured in their Constitutional rights, as infant subjects of the Queen, if no relative can be found able and willing to support and educate them under the court, and subject to its control, or if no stranger can be allowed to extend the hand of charity without being subjected to harsh and ungenerous imputations.

In cases where the religious issue is open, it is a rule which I always adopt, to put the case with the religion of the parties reversed, and consider then the decision I should pronounce. Had John O'Malley been a facile Protestant, and his wife a devoted member of the Roman Catholic Church; had he allowed his children from their earliest years to learn the language of its ancient ritual and its impressive invocations; had he left his widow to fight the hard battle of life with a numerous and helpless offspring; if she had kept them together to the last, until she had nothing to share but her prayers and her tears; and if she had left them in the Church which hallowed the earliest lessons of their infancy; and if a board of guardians could be found who would consign them to a custody where Protestantism would be let loose upon them, and the interference of this court should be sought for their deliverance on the application of some humble but honest Roman Catholic relative, aided by any generous stranger: could I, then, shrink from a duty so sacred and so palpable?-God forbid. It is a satisfaction to me to know that if I have erred in the view which I have taken, my_decision can be reviewed by the Court of Appeal, both here and in England. I must refuse this application, with costs. William O'Malley has availed himself of the assistance of Poor Law guardians to deprive these children of their lawful rights. He asks of me to believe that his deceased brother was a hollow hypocrite, who bartered away the faith of his children for some unworthy but undefined motive. I have no authority here, without and against evidence, to impeach

the motives or conduct of either the living or the dead. The children have a property in their father's good name, and, so far as it may be in my power to secure, I will see that they be taught to respect the memory of both their parents, and not to learn that either has been a castaway. John O'Malley, in his life, was, as it appears, an affectionate husband and a tender father; on his death he received reverently from the priest of his own church her last sacramental rite; with the minister of his wife's church he joined in fervent prayer, and confessed a faith which Mr. Lynch insists to be Roman Catholic, Mr. Fowler asserts to be Protestant, and of which I will only add, it was the simple faith of a Christian. In this responsible jurisdiction I feel how solemnly I am bound to act without fear, favour, or affection. The duty, on the present occasion, invidious as it is, has been made the more painful to me from the contention of the parties having been too much leavened with the bitterness of controversy, and too little with the kind and gentle spirit of charity, so suited to the case of poor destitute orphans. The religion of the Redeemer is a religion of love, and not of strife or hatred. Like his seamless garment, the trembling touch of faith may from the very hem extract a healing virtue. In the true spirit of this religion, I trust these children may be educated, so that the law of this land may be honoured, and the last wishes expressed by both the parents righteously fulfilled.

ART. IX.-MONTALEMBERT ON ENGLAND AND

INDIA.

1. A Debate on India in the English Parliament. By M. Le Comte de Montalembert. Effingham Wilson, Royal Exchange. London: 1858.

2. The Trial of M. Le Comte de Montalembert and M. Douniol before the Paris Correctional Tribunal on the 24th November, 1858. Effingham Wilson. London: 1858.

3. The Political Future of England. By the Comte de Montalembert of the French Academy-from the French. John Murray. London: 1856.

The English people are so much accustomed to bespatter themselves with their own praises, to laud themselves and their institutions, and proclaim them to the rest of the world, as the freest on the face of the globe, that any responsive echo coming from abroad is hailed as a right due to their own excellence, no matter what may be the source or motive, from which it emanates. Their gullability is of the most facile, their devotion to flattery of the most servile description; they swallow with a peculiar avidity, everything which tends to feed their most consummate selfishness and egotism. Thus it is that the English press has seized upon, and heaped with the highest eulogiums the article by the Comte De Montalembert on the India debate, merely because it teems with the most fulsome adulations of their country. One paper, the giant in print, goes so far as to say, that this production, "is a noble and passionate eulogy of English freedom; the language of which extraordinary composition is a stream of unpausing eloquence," ignoring altogether the purpose for which these papers were written. We do not mean to assert that it is not an able performance, skilfully designed and executed, but any one who scans its paragraphs ever so lightly, will at once perceive that it was not written either as a panegyric, or a lesson in history.

The artistic design of this picture is too transparent, the colours too highly wrought and unreal, not to fail in producing the effect intended by the painter. It is impossible to hide from ourselves, that notwithstanding the Anglo-French