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The Mortara Case

Brownson's Quarterly Review, April, 1859

ART. III.-The Mortara Case; or, the Right of Parents to the Custody and Education of their Children.

It is scarcely the province of a review to discuss indi­vidual cases that arise from day to day, which properly belong to the sphere of the Journals:  yet so much im­portance is attached to the action of the Roman Govern­ment in reference to Edgar Mortara, that we may be allow­ed to examine the facts and principles involved in the case. To put it in its fairest and strongest light: A child of Jew­ish parents living at Bologna, in the Roman States, who was baptized in infancy, in the presumed danger of death, by a Christian domestic, without the knowledge of the parents, has been recently taken by legal process from their custody, and transferred to Rome, that he may be instructed in the Christian faith, in a public institution devoted to the use of Jewish converts. The age of the child is variously stated, at eight or eleven years. The actual state of his mind is reported by all to be that of happiness in his new position. His father has visited him, and has been graciously received by the Sovereign Pontiff. He is said to acquiesce in the detention of his son. What his wishes are it is not difficult to divine.

With the case itself Catholics living out of the Roman States have no direct concern. Whilst acknowledging the Pope as chief Bishop of the Church, and the centre of unity, they are not subject to his civil authority, and are not in any way responsible for its exercise. The proceed­ings of the Roman tribunals in regard to the subjects of the Pontiff are regulated by law and usage. Although in this instance they regard an obligation arising from the reception of a Sacrament, they have no force or application beyond the Roman States. Catholics may reasonably de­cline all investigation of the grounds of action of the Roman Government, since it has exclusive civil control over the parties interested.

The withdrawal of Edgar from parental custody in order to secure his Christian education, was in virtue of an immemorial law of the Roman States grounded on religious principle, and on the Christian view of individuals' rights and duties. The fact that he had been baptlzed obliged him to receive instruction in Christian doctrine, which was scarcely possible whilst he remained under the paternal roof. Most probably he would have been placed in an in­stitution in his native city, were it not feared that his parents would clandestinely withdraw him, and send him out of the country. In 1842, a child who had been bap­tized was left in charge of his parents, on their satisfying the tribunal that they would have him trained in Christian principles. In the Mortara case no regard had been shown by the parents to the baptism of the child, which had come to their knowledge, and consequently no hope could be entertained that they would attend to his Christian in­struction. His removal to Rome was consequently decreed by the competent tribunal, and effected by two public officers in a regular way, with as little pain as possible to the parents. It amounts to no more than placing him at a boarding-school at the expense of the Pope, that he may be taught his catechism.

The prejudices of the parents naturally rendered them unwilling that their child should be brought up a Christian; but they well knew that such was the law of the Roman States, regarding all baptized infants, and they had ex­posed themselves to its operation by introducing into their family a Christian domestic, contrary to law. The natural rights of parents to the guardianship of their children are not so absolute that they can retain it, if they be incom­petent or unfit to educate them, whether from moral or physical causes. Jews are not qualified to give Christian instruction, and are unlikely to procure it for their children. For this we cannot blame them; nor does the Roman Government claim any right to withdraw their children from their custody on this account, unless these children have been baptized, or when arrived at the use of reason they demand Christian instruction. The case entirely turns on this point, that the child had received baptism, which makes him a Christian and entitles him to the priv­ileges of Christian citizenship, which the State guaranties and guards, by insisting on his Christian education. A Christian State cannot be expected to ignore this or omit to be guided by it in its legislation.

The natural right of parents to watch over and direct the education of their children is necessarily subordinate to the general interests of society, and the welfare of their children.  Christian governments judge of these according to Christian principles.  They must be guided by them when the rights of parents and children conflict.  In England, Lord Eldon, in the case of Manneville, which was decided in 1804, remarked that the Crown as parens patriae has authority over all infants which supercedes the rights of parents by nature.  On this ground, among others, he took from the father, as being a Jacobin, the control of his son's education.  The same principle prevailed in the case of the poet Shelley, who was thought to be an infidel, and therefore deprived of the guardianship of his children.

The Boston Daily Courier gives us the English law on this subject, chiefly from the late Mr. Justice Story, which is so much to our purpose that we will take the liberty of laying an extract before our readers:

"The existing law on the subject is fully explained and sustained in Story's Equity Jurisprudence, as the following extracts show:

"'The jurisdiction of the Court of Chancery extends to the care of the person of the infant, so far as necessary for his protection and education.  . . . It is . . . for the due protection and education of the infant that the Court interferes with the ordinary rights of parents, as guardians by nature, or by nurture, in regard to the custody and care of their children.  For although, in general, parents are intrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education in literature, and morals, and religion, and that they will be treated with kindness and affection.  But, whenever this presumption is removed; whenever, for example, it is found that a father is guilty of gross ill-treatment and cruelty towards his infant children; . . . or that he professes atheistical or irreligious principles; in every such case the Court of Chancery will interfere, and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education. . . .

"' The jurisdiction, thus asserted, to remove infant children from the custody of their parents, and to superintend their education and maintenance, is admitted to be of extreme delicacy, and of no inconsiderable embarrassment and responsibility.  But it is, nevertheless, a jurisdiction which seems indispensable to the sound morals, the good order, and the just protection of civilized society.  On a recent occasion, after it had been acted upon in Chancery for one hundred and fifty years, it was attempted to be brought into question, and was resisted as unfounded in the true principles of English Jurisprudence.  It was, however, confirmed by the House of Lords with entire unanimity; and, on that occasion, was sustained by a weight of authority and reasoning rarely equalled, (namely, opinion of Lord Redesdale.)--Story's Equity, s. 1342. 
"Story then proceeds, in sections 1343, 1344, 1345, 1346, 1347, 1348, 1349, to exhibit the arguments 'by which,' as he concludes, 'this jurisdiction of the Court of Chancery has been maintained and established in the highest appellate Courts of England.'

" Story next proceeds, in notes, to cite a multitude of cases in which, for one reason or another, this authority has been exerted from time to time, by the Lord Chancellor.

"Indeed, the law of England is more objectionable in the sense of religious liberty, and of humanity, than that of Rome, as a few examples will serve to demonstrate.

"Ih Shelley's case, the exception was that he seemed to have taken up some sort of religion of nature, or philosophical infidelity. Atheism was imputed, but not proved, and, as is now known, falsely imputed. Poor Shelley was but guilty of the harmless folly of dreamy poetic excursions of the imagination into the regions of the pantheism of some of the old Greeks and Romans.

"But in De Manneville's case, Lord Chancellor Eldon would not allow a father the control of his child, among other reasons, and chiefly, because the father was then (1804) what was called a Jac­obin. The Court expressly declares that the Court, as Parens Patriae, has authority over all infants, superseding that of their par­ents by nature. And, in arguing the case, Messrs. Romilly, Fon­blanque, and Corlie, speak in the course of it as indisputable that the Court will interpose on the ground of religion to prevent a child from being brought up in a religion different from the established one.

" We might adduce many other instances of the exercise of this authority by more modern Chancellors; but we pass over them to specify several which are absolutely identical in spirit with Mr. Mortara's case, and differ only in this, that the child was taken from the parent and natural guardian, because of the child having received Protestant impressions, while the parent remained a Roman Catholic, nay; on account of the parent having but become a dissenter from the Established Church. Thus Lady Dandey was deprived of her child, because she was an Irvingite. The Vice-Chancellor took the child Alice Race from its mother and only surviving parent, on the sole ground that, while the mother was a Catholic, the child had contracted Protestant impressions.

"The Lords-Justices took Lord Stourton's child away from him on precisely the same ground; and on precisely the same ground, 'abducted' and 'kidnapped' the young children of Mrs. North. These three last cases are quite recent; so recent, that we believe they have not yet found their way into the common knowledge of the profession in this country. However, two of them are referred to at some length in Lord St. Leonard's Handy Book, which is (or ought to be) in everybody's hands."

In former times the profession of the Catholic faith in England sufficed to subject parents to heavy penalties in case they sent their children to any foreign institution, or to any private "Popish family, in order to be instructed, persuaded, or confirmed in the Popish religion." (Comm. 1.I.c. XVI. Vol. I.)  Not­withstanding the repeal of the penal laws, the English Courts still judge in favor of the Protestant training of the children of Catholics, whenever they can get a plausible pretext. In England, Alice Race has recently been taken from her Catholic mother, contrary to the express wishes of her father at his death. In Ireland, the children of O'Mal­ley, a deceased Catholic, have been given over, by order of the Court, to the care of a Protestant aunt. It is stated that Nicholas, the late Czar of Russia, ordered three thou­sand youths, children of Polish Israelites, to be pressed into his naval service, and to be baptized. Montefiore, the English Israelite, travelled to Russia, to remonstrate against this constraint, but did not succeed in changing the deter­mination of the Czar, who answered, that he had conferred on them a signal, spiritual benefit pregnant with great tem­poral advantages. In our country although the Constitu­tion and laws give no preference to any doctrine or form of worship, public prejudice prevails to such a degree, that the children of Catholics are very frequently withdrawn from their parents, if poor and destitute, and placed under Protestant influence in public institutions.  The State laws on this point are framed on the model of the English laws, under the pretext of poverty, or vagrancy, (either being suffi­cient to place them within the law's grasp;) and thus, as Blackstone testifies in regard to England, "the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children."  In most States the magistrates can bind out such children, and in some places, as in St. Louis, preachers are employed as paid agents, to enter the houses of the poor, and snatch away their children in the name of the law. Their names are sometimes changed, and they are soon sent away and bound out far from the reach of their parents, whose natural rights are most unfeelingly disregarded.

The Roman government on the contrary pays the strictest regard to the rights of poor parents, equally to those of the most wealthy, and avoids all intrusion into the domestic sanctuary as long as the laws are obeyed, but it requires the rights of Christian children to be respected. In the case of the Mortara family, the baptism of the infant took place not by any government act, but through a sense of religious duty on the part of a domestic. The child re­mained under the care of his parents long after he had at­tained the use of reason, and was only taken from them by process of law, when it was ascertained that they had not complied with the legal obligation of training him as his baptism rendered necessary, and the laws of a Christian na­tion required. As Jews, their neglect admits of excuse; but the government being Christian, and the sovereign being chief Bishop of the Church, could not be expected to dissemble the fact, and allow the Christian child (such he was by baptism) to be brought up in the hatred of Christ, his Redeemer. The legal process was gone through with all exactness, the facts were proved by satisfactory evidence, the decree was issued and executed with all possible lenity and mildness, and the Christian education of the child was provided for at the expense of the Sovereign. Anyone who respects the law must admit that the proceeding was perfectly justifiable. Even those who think the law itself harsh and unjust, cannot fairly censure the manner of its execu­tion. In order to judge justly it is almost essential to ex­amine the fact in the religious aspect, in which the Roman government was bound to view it, and therefore to under­stand what Catholics hold as the effects and obligations of baptism.
The fact of baptism having been administered by a domes­tic does not affect its validity, since although the office of baptizing properly belongs to the bishops, priests, and deacons of the Church, everyone can validly baptize by using the pre­cribed form of words, and making simultaneously the ablution. This is known to us from the ancient tradition and practice of the Church, of which in the third century Ter­tullian is witness.*(L. de Bapt. XVII.) A Jew cannot conceive why so simple a rite performed by a menial should be thought to change the condition of the infant who unconsciously receives it ; but faith regards the divine institution, and the power and grace of Christ, who invisibly produces the effects which he has attached to it. The act of the domestic is as effectual as that of a priest or bishop, and the mere ablution and in­vocation are as certainly attended with the sacramental character and grace, as if the Sovereign Pontiff himself solemnly performied the rite with all the imposing ceremo­nies of the Ritual. The baptized infant born according to the flesh of Israelite parents, becomes a child of God, being born of water and the Holy Spirit. Without his knowledge he receives heavenly gifts purchased for him at the price of the blood of his Redeemer; without his consent he is sub­jected to the law of Christ and of His Church, since the boon of regeneration is granted on this condition. It is not necessary at this time to prove these positions; it is enough for our present purpose to state that this is the teaching of the Catholic Church, as to all baptized infants, without regard to the religious faith or wishes of the par­ent. As it is believed that without baptism the infant cannot enter into the kingdom of God,-that is, cannot be a member of the Church on earth, or partake of the glory of heaven,-it might be thought that the Roman government would oblige its Jewish subjects to have their children bap­tized ; yet the Holy See, in accordance with the teaching of St. Thomas of Aquin, strictly forbids the baptism of the infants of Israelites, or infidels, without the free consent of their parents, and consequently their withdrawal with such a view from parental control. Julius III., whose pontificate commenced in 1550, forbade such baptism under penalty of suspension from the sacred ministry, if the offender were in sacred orders, and a fine of a thousand ducats. Benedict XIV., in the year 1747, instructed his Vicegerent to see that the prohibition be faithfully observed. It might be supposed that at least when in manifest danger of death, the gov­ernment would authorize Christians to force their way into the houses of Jews to baptize infants known to be dy­ing, or would encourage the employment of Christian nurses who might in an emergency perform this most necessary of­fice. Nothing of all this is done. Christians are forbidden to trespass on the domestic independence and peace of the Jews; and these are likewise forbidden to employ Christian nurses. The last prohibition is borrowed from the Canon Law, and enforced by a Papal Constitution, published by Gregory XIII., who reigned in the decline of the sixteenth century. This was not done with a view to prevent the baptism of dying children, though it evidently shows the absence of compulsory measures to secure it. The Vicar of Christ could not entertain a desire to prevent, nor could he forbid, their baptism. The law was directed to save Christian domestics from the danger of apostasy, for it was known by sad experience that familiarity with the Jews served to wean them from the worship of Christ. Think of a girl of fourteen, such as was the maid who baptized Edgar, living in a family where Christ is mentioned only as a wicked and impious wretch, who sought to overturn the divine fabric which Moses had raised, and paid the penalty of his crimes on an ignominious gibbet. That an occasion should present itself for baptizing a dying infant is a possi­ble occurrence; but the danger arising from the conversa­tion and example of the family is obvious and immediate. But whatever was the object of the law, the elder Mortara, by hiring a Christian nurse, was its violator and exposed himself to fines which the government forbore inflicting. If she used an opportunity to baptize the child, he must blame himself for employing her. "What remedy would be offered in a court of justice to a plaintiff alleging a wrong done him by one whom he employed in direct violation of the law! This is something more than laches, or neglect on his part to protect himself against wrong; it is legally, if not morally, equivalent to connivance. We are not sur­prised at the energetic measures recently adopted by the Grand-duke of Tuscany to discover Christian domestics em­ployed by Jews in his States, since the danger to which they are exposed is evident, and there is reason to fear that some case like the Mortara occurrence may serve as a pre­text for political excitement. The Cardinal Vicar of Rome has likewise enforced the law, and released fifteen Christian maids from the danger to which they had been exposed by engaging as domestics with the Jews at Rome.
The Roman government has made ample provision for the religious security of the Jews, by allowing them a syn­agogue, with freedom of worship and protection, and by forbidding all constraint--all interference with them or their children --all violation of their domicile. It could go no farther. Insisting that all baptized infants be educated in the faith, it showed that respect for the Sacrament, which a Christian Bishop, who is at the same time sover­eign, must be expected to entertain. His Jewish su bjects well knew the law, and were thus put on their guard against the contingency. If the government were to dis­semble, it is not unlikely that the report spreading among the citizens, of a baptized child being trained as a Jew, to dishonor Christ, might give occasion to collision and blood­shed.  It is only by adhering to law that peace can be ef­fectually maintained between classes so apt to be carried away by their antipathies.

The dispositions of the child himself are not entirely to be overlooked in this investigation. From all the testimony that can be obtained it appears that he is contented and happy. Some may give little importance to the assent which a child of tender years gives to the Christian doc­trine; but the Church recognizes the capacity of all who have attained to the use of reason, to conceive divine faith. The control of parents in matters of religion is necessarily confined to the inculcation of divine truth and the laws of God. Our courts of Law seem to acknowledge in them a religious guardianship over their children until these attain to full age; but the ecclesiastical tribunals, with St. Thomas of Aquin, hold, that the child is free from his earliest use of reason, to submit his mind to God, without regard to the views or wishes of his parents, and is bound to em­brace the faith, when propounded to him in a manner cor­responding to his capacity. He owes obedience to his par­ents in domestic discipline; he must obey God in things divine. Since, then, the child, Edgar, under the instruc­tion which he has received, assents to the Christian faith, it would be wrong for the Pope, who has legal control over him, to place him with his parents, whose prejudices dispose them to train him in contrary principles. His religious liberty would be manifestly endangered, since he would be unable to resist parental influence. Under similar circum­stances in this country even grown children who choose a faith different from that of their parents were allowed by the courts to receive guardians or remain under the care of persons of their new faith. This was done on the broad principle of liberty of conscience admitted even in minors. Those who believe that there is no other name under heav­en by which man can be saved but that of Christ, can scarcely approve of consigning a child that has come to his knowledge, to the care of those who regard Him as a crimi­nal executed for sedition and blasphemy. To expect the laws of a Christian nation to make it imperative would be asking entirely too much. We are scandalized at the little account made of the Sacrament and of the salvation of a soul in estimating the action of the Pontiff. A Christian must hold that eternal life depends on the knowledge of Jesus Christ the Saviour, heaven being attainable, even under the ancient dispensation, only in virtue of implied faith in Him:

"None ever hath ascended to this realm, Who hath not a believer been in Christ, Either before or after the blessed limbs Were stretched upon the wood."* (Parad. xix.)

In the official note of Cardinal Antonelli, Secretary of State, addressed to the European courts in relation to this case, the facts are set forth with a view to show, that the child Edgar was validly and lawfully baptized; but no effort is made to prove that such baptism warranted the interposition of the Government to provide for his Christian education. This is assumed as admitting of no question. The Pope as Pater patrice feels authorized and bound to furnish the young Christian with the means of instruction. He does not break off all communication between them, but allows the father to visit his child, who is taught in his catechism to honor his father and mother. But for the excitement raised by designing men, we have no doubt that the return of the latter to his native city, within reach of his parents, if not under their roof, could have been obtained, on the condition of guarantying his Christian education: this being the sole point for which the Pontiff is solicitous.
* Parad. xix.

The Jews have shown great want of moderation and prudence in this affair. They boasted from the beginning that it would produce commotion and indignation in the whole civilized world, as a most unparalleled outrage; and having to a great extent control of the press in Germany and other countries, and influence with cabinets, like that of Sardinia, needing supplies, they have in part realized their threats.  They have insidiously sought to bring odium on the Catholic clergy, unless these join in the outcry against the Pontiff. Unmindful of the benevolence ever displayed towards them in Rome, they have sought to overwhelm him with public censure, and to excite at once the masses of the people, and the crowned heads against him. But they have failed. All men of intelligence easily understand that an act of a government done in pursuance of an ancient law, connected with a religious principle, and calculated to protect a religious right, cannot be justly complained of by its subjects, who, with a full knowledge of the law, brought themselves within its operation.  The condescension of Louis Napoleon to instruct his minister to confer with the Cardinal Secretary of State on the matter, has resulted in showing the constancy of the Pope in the course which he had deliberately adopted from motives of conscience. His answer, Non possumus, will long be remembered. He is invested with the plenitude of civil power as sovereign of his States, yet he feels himself bound by principle to pro­tect the Christian rights of his subjects, whether adults or infants. He cannot consent to restore to unbelieving parents a child that has been regenerated in Christ, and instructed in the mystery of Redemption. He must con­tinue to discharge the office of a father towards him, and see that he be strengthened in grace, before he be exposed to the danger of apostasy. The waves of popular com­motion dash in vain against the rock on which he stands: he hears murmurs and threats from every quarter, yet he remains

Unmoved, Unshaken, unseduced, unterrify'd.

He cannot trifle with the salvation of the immortal soul, which has received the divine impress. We are not surprised that the parents should feel pained at the tem­porary separation from their child, or that Israelites gener­ally should regard it as a grievance; but we cannot excuse their attempt to magnify and misrepresent it as an act of kidnapping, an outrage, and a violation of natural right. That Christians should be misled by their clamor is indeed surprising.

The wisdom of the President in refusing to interfere even by way of friendly remonstrance is manifest. The Secretary of State has strongly insisted, in his two official replies, on the settled policy of our government, not to meddle with the domestic concerns of foreign nations; al­though he has thought proper to give publicity to his indi­vidual sentiments in a letter to a friend evidently designed for publication. We cannot blame him for not viewing the act favorably, since its religious aspect is not agreeable to non-Catholics, and its legality can scarcely induce its ap­proval by those who hold that civil legislation should have no connection with religious principles. Nevertheless we think General Cass might have paused before venturing to censure, even in his private capacity, the judicial act of a foreign power. Our own "domestic institutions" are quite as unintelligible to those of other countries, and far more liable to become the matter of censure: but whatever in­dividuals may opine in regard of them, we know of no in­stance in which men in authority denounce them.
England, as well as Prussia, has declined to interfere.  The vaunted unanimity of the reclamations of foreign governments is reduced to the informal communication from the French Emperor, and the remonstrance of the semi-infidel government of Sardinia, the worst mediator that could have been chosen. If a wrong had been com­mitted, the Pope would have been most ready to redress it, since it was the action of the tribunals, which he was free to rescind, if unjust or illegal. If concession implied no danger to the faith and salvation of the child, he would have readily granted to the prayer of the father his custody and charge. No foreign influence was needed, or desir­able: no threat was admissible. Notwithstanding the rash course adopted, we are confident that all kindness and tenderness of Christian charity will continue to be exhibited by the humane Pontiff and his agents to the parents, as well as to the child.  We indulge the hope that the young Edgar will grow in grace and in the knowledge of our Lord, and become the instrument of Providence in draw­ing to the faith his parents and many of his brethren ac­cording to the flesh.  The result of the commotion excited, is to show, on the part of the Pope, great moderation with equal firmness, and a faithful adherence to the examples of his predecessors in the humanity and justice which they uniformly observed toward the Israelites.  These have no reason to complain, that the law forbidding them to em­ploy Christian domestics is now enforced, and fines inflicted for its violation. If other legal restrictions, to which they are subject in the Roman States, as in various other coun­tries, and which hitherto were practically ignored, through the indulgence of the Popes, be now insisted on, they must blame themselves for having provoked this severity by their most unwarrantable efforts to bring odium on their Sovereign. No power can be indifferent to its own secu­rity. The cry of persecution which they now raise is without foundation, as long as they are protected in their worship, and all their religious observances, as also in their persons and property, and in all their natural rights, hav­ing it even in their power, if they will, to prevent the bap­tism of their children. Political privileges have hitherto been withheld from them in most countries. We should rejoice in their full enjoyment of them; but whilst the Roman Government treats them with humanity and jus­tice, the distrust with which she views them is strength­ened by the measures which they have so rashly adopted. We rejoice in the social equality with all citizens of every creed which the Israelites enjoy in the United States, and desire that they may everywhere be established; yet we know how difficult it is to remove the apprehensions of governments in regard to the danger of innovation, and to harmonize the heterogeneous elements of society.
The greater part of the clamor that has been raised on this Mortara case, has originated in Sardinia, and has had a political motive. The policy of the present Sardinian government, in which it is seconded, not only by England, which was to be expected, but by the Imperial government of France, is to hold the temporal government of the Pope up to public execration, as a pretext either for interfering with its internal administration, or for divesting the Pontiff of his temporal sovereignty, and annexing his principality with the Duchies to the Subalpine kingdom, or to the French empire. The real motive of all this clamor is to make the Pope a mere puppet in the hands of France or Sardinia, or to get rid of him as an Italian prince.  To ef­fect this it is necessary to decry his temporal government, and to destroy its reputation in the public estimation, and to preserve and increase to the greatest possible extent the disaffection of his temporal subjects. The removal of Ed­gar Mortara from his Jewish parents in order to secure him a Christian education, it was thought afforded an excellent opportunity of carrying out this not very honorable policy.  The Jews, whose rights were not invaded, but whose preju­dices were offended, were appealed to as the most fitting in­truments, and were only too ready to respond. The con­quest of the Papal States involving that of the Duchies, would give Sardinia a chance for rich plunder, and the means of paying her bonds, as the conquest of Italy by France would secure to the Jewish bankers the interest on their loans. In any case, they could say with Shylock, "If it feeds nothing else, it will feed my revenge."  It would gratify their hatred against Christianity and Christian governments. Understanding the motive, we cannot re­spect or heed the clamor. It will die away of itself.  We can assure the enemies of the Church that her existence is not linked with the fate of French or Sardinian dynasties; she can see, and has seen, dynasties more powerful rise and fall without losing her equanimity; we can also assure them that she does not stand or fall with the temporal gov­ernment of the Pope. She existed six hundred years be­fore it was established, and may exist six thousand years after its overthrow. The Pope may cease to be an Italian prince, and to be burdened with the thankless task of governing a petty Italian State, and still be Pope, and the representative on earth of Him who is King of Kings and Lord of Lords.

The Papacy itself can never be effectively assailed through the Pope's temporal government. It is as Sover­eign Pontiff--as supreme head and governor of the Church on earth, that he inherits the promises made to Peter, not as an Italian prince, and the wisdom and justice of his temporal government depend on the principles, and are to be judged by the same rules, we apply to other temporal governments. The Church is Divine, but temporal gov­ernments, though existing and governing by Divine right, are human and imperfect, whether administered by Pope or Caesar, Lords spiritual or Lords temporal. If We should find bad laws and worse administration in the Papal States,  it would disturb neither our faith nor our piety. We should say simply the Pope, though infallible, loquens ex cathedra, in all matters of faith and morals, is but an indifferent temporal prince; or that he finds himself, as other princes, in circumstances which render it impossible for him to make all the improvements in legislation, or reforms in the administration, demanded by wise and good government. We have no doubt that the government of the States of the Church is imperfect, and just as little that the sovereign finds himself surrounded by men and influences that effectually hinder him from placing it in harmony with the wants or the ideas of modern society, or adapting it at once to the changes time and events have wrought in the condition of his subjects. We look to Rome for instruction in what relates to eternal salvation, for spiritual light and direction, not specially for the wis­dom of this world, which may be, consistently with our spiritual interests, as little abundant there as at Washing­ton, London, Paris, Vienna, or Naples. It is possible that Popes and Cardinals, while looking out for the true inter­ests of religion, and divinely protected and assisted in their spiritual mission, may be very indifferent statesmen, and also that they may be surrounded by Monsignori and Generals and Provincials of religious orders, all mean­ing well, but who yet insist that true wisdom is in the admonition, quita non movere, and who would raise a cry that would frighten the faithful throughout the world, if they should happen to detect the slightest symptom of de­parting from routine, or of adopting a modern idea even in regard to civil matters. There are old fogies, no doubt, at Rome, as there are in and around all temporal courts, and they are often such as every court must consider; yet, though the temporal government of the Pope is not and cannot be in accordance with American republican notions, we have no belief that it is so bad, or that its subjects are generally so disaffected as commonly represented by the anti-Catholic press. Abuses there may be, as there are under every temporal government; obsolete forms may be retained; the machinery for the administration of justice may have become old and cumbrous, and cease to work well; but the condition of the people in the Roman States, if they were disposed to make the best of it, is not intoler­able, and is in fact superior to that of the people in most European States.

From what has been advanced in the foregoing pages, it will be seen that the law under which young Mortara was taken from the custody of his parents, is not different from the law in England and the United States, and is such as English and American courts every day enforce, and sometimes to the prejudice of Catholics. The law itself is right in principle, and is designed to protect the child against the incompetency, the irreligion, or the vices of the parent. It, of course, is opposed to the doctrine sometimes put forth against state schools, that the education of the child in all cases belongs to the parent, between whom and the child the state must never be permitted to intervene--a doctrine this Review has never defended. It denies that the right of the parent to the custody and education of the child is absolute, admitting of no exception. It supposes there are exceptional cases, where the state may intervene to protect the child. The law may be abused, and is abused every day, and so is every thing good. It was abused when in England under it Catholic children could be torn from their parents and placed under Protestant guardians to prevent them from being brought up Catholics, and is abused also when the children of Catholic parents, because they are poor, are taken from them and placed in Protestant insti­tutions, or bound out in Protestant families, without any provision being made for their instruction in the Catholic religion, as every day happens in this country. Yet there are cases in which the courts are bound to intervene in or­der to protect the child and society itself, as, for instance when the parent is bringing up his boy to be a thief or to
practice any species of crime or immorality.  

Under the ancient Graeco-Roman civilization the power of the father over the child was absolute, and the father might put his child to death, or sell him into slavery, without the law intervening,--a power which in the beginning, no doubt, it was considered the affection of the parent would prevent from being abused. But under the Christian order, this power has been restricted, and the child is regarded as a person, a citizen, with rights that the law may protect even against the parent. A Christian child has in a Chris­tian 'country, the right to be brought up and instructed as a Christian. It is singular that in the Mortara case, while the right of the parent has been insisted on, there has been a strange forgetfulness of the right of the child to Chris­tian instruction and Christian citizenship. This right on the part of the child was at least as high and as sacred as the right of the father to the custody and education of his children. Edgar Mortara was a Christian from the moment of his baptism. No matter what your opinion on this point may be, the Catholic Church so teaches, and her teaching is the guide the tribunals that took cognizance of the case were bound to follow in deciding what, in the legal sense of the term, constitutes a Christian. Indeed, when the ques­tion is between a Christian and a Jew, we suspect any court in the civilized world would hold proof of baptism as conclusive proof of a Christian status. Edgar Mortara being a Christian, was entitled to all the rights conceded to a Christian by the laws of the land. The Jewish father had, indeed, the right to bring up his Jewish children in his religion, but not the right to bring up in his religion a Christian child, whether his own child or another's. If the Pope when appealed to, had sent the boy back to his father to be brought up a Jew, he would have violated the right of the child, the right of every Christian child to Christian instruction, and we should have seen it turned by the very persons who now clamor so loudly, against the Papal govern­ment, and heard another clamor equally loud, and far less unjustifiable, that the Pope is Anti-christ, for he sends a Christian child to be brought up a Jew, to reject, revile, and blaspheme our Lord. The Jewish father never had the right before God, or by the law of the land to bring up a Christian child in any other than the Christian religion.

We concede that it is not permitted in the Papal States, nor by the Church anywhere, except in case of abandon­ment or in extreme danger of death, to baptize the child of non-Catholic parents without their consent; and yet we should suppose that all who feel any attachmeut to the Christian religion, would take some interest in the soul of young Edgar, and be pleased at the thought that even one child of Jewish parents is a Christian, and likely to be brought up in the faith of our Lord. We well know that we may not do evil that good may come, and yet all who love the good must welcome it when it comes. We have not been edified by the conduct of those among the clam­orers against the Pope who claim to be Christians, or by the way in which they have argued the question. They have ar­gued it as if young Edgar had no soul, as if eternal salvation is a matter not worth troubling one's head about, or as if it were a matter of perfect indifference whether a child be brought up to love and obey our Lord, or to reject and re­vile him. Do these people ever ask themselves what would become of Christianity if there were no Catholic Church to assert and vindicate it?

No doubt the Protestants who join with the Jews in the clamor against the Papal government, do it on the ground not that a Jewish child has been baptized and is likely to be brought up a Christian, but that religious liberty and the sacred rights of parents have been violated. But this ground is untenable. If the Papal government had ordered the child Mortara to be baptized against the will of the parents, or had had any hand in bringing about his baptism, or in making him a Christian, we grant it would have been a serious invasion of the acknowledged rights of parents, a real invasion of religious liberty, and we should have blamed the government, not for securing the child after he had become a Christian, a Christian education and a Chris­tian status, but for having participated in making the child a Christian without the parent's consent. But Edgar was a Christian, according to the law of the Papal States, when the knowledge of him first came to the government. It had to deal only with the case of a Christian child living in a Jewish family, exposed to be brought up a Jew. It intervened not to deprive the father of his right, but to secure to the Chris­tian child the rights he acquired by becoming a Christian. It had incurred no responsibility for the act of baptism, for it never heard of the child till he had been christened, made a Christian, and after his baptism, it would have in­curred a fearful responsibility if it had left him exposed as he was. If there was any invasion of the right of the parent, it was done not by the Papal government, but by the elder Mortara's own maid-servant, who baptized the child, without the parents' consent; but she did it innocently, believing the child in imminent danger of death, and Mor­tara could not complain, because he had himself received her into his family in violation of the law.

There was no doubt a conflict of rights in the case, and, as in all cases of a conflict, one or the other must give way. If the father had the right to the custody and edu­cation of the child, the Christian child had the right to Christian instruction, and the privileges of Christian citi­zenship. If it was a wrong to the Jewish parent to take from him the custody of the child, it was also a wrong, and a far graver wrong, to the child to leave him in that cus­tody; and in a Christian land, before a Christian court, when, other things being equal, the right of the Christian over­rides that of the Jew. The father in this case, moreover, had forfeited his right, because his son had been baptized in consequence of his own act in employing a Christian domestic contrary to the law. The state was bound to intervene and protect the right of the child, and especially must it do it, after the child is old enough, as appears to be the case, to have a mind of his own, to form and to ex­press a wish to be a Christian. For a Christian govern­ment then to send him back to be brought up a Jew, would have been gross injustice, and a violation of religious liberty, deserving the severest execration.
So conclusive does this reasoning appear, that the London Times and other anti-Catholic journals, dispute the fact that baptism, especially lay baptism, introduces one into the Christian family, and make themselves quite merry with the absurdity, as they regard it, of supposing that a little water sprinkled or poured upon the head and a few words pronounced over the child by a servant-maid some fourteen years old, can make the child a Christian and impress upon him an indelible character. Their mer­riment is sad, for it arises from confounding in the Sacra­ment the visible sign or symbol with the Holy Ghost that in the sacrament regenerates the recipient. But this raises the theological question, answered in an earlier part of this article and a question with which the civil courts, whether in the Papal States or in any others, have nothing to do. The Papal tribunals could not take cognizance of the theological question; they could only take cognizance of the civil question, and decide what constitutes one a Christian in the eyes of the civil law. In the eyes of the civil law of the Papal States Edgar Mortara having received baptism was a Christian, and we are aware of no court in Christendom that would not find itself obliged to decide the same way; for if in some countries individual persons may be recog­nized as Christians who have not been baptized, there are none where persons who have received baptism, and have not voluntarily renounced Christianity, could be declared to be not Christians in the civil sense. Unless with the ex­ceptiun of a few sectaries, which is doubtful, baptism is held to be a sign of Christian profession and membership by all who call themselves Christians. But to place the opposition on the theological ground is to change its character, and to make it an opposition not to the Papal Government, but to the Catholic Church, and to reduce the clamor to our old acquaintance, the clamor always raised by non-Catholics against Catholicity, and to make it turn not on a matter of fact or of law, but on a matter of opinion; in which they who clamor may turn out to be wrong, and they who are clamored against may turn out to be right. All the clamorers can say is, not that the theology of the Catholic Church is false, but they think it is not true. Suppose they do think so, what then? She very likely thinks the contrary, and, at the lowest, her think is as good as their think.

We have dwelt the longer on this Mortara case, be­cause it has made much noise, and has been presented in such a false light as to disturb many honest, well-meaning people. We have for ourselves considered it an affair in which we as a Catholic have not any special interest, except the satisfaction we naturally experience in learning that the child is likely to grow up an instructed and worthy Christian. We have seen in it the protection of the rights, in a Christian land, of a Christian child against his Jewish parents, the most natural thing in the world. We give expression to no prejudice against the Jews, to whom we willingly concede all the rights we claim for ourselves. We yield to no one in our devotion to religious liberty, and in the present state of the world, at least, we believe the only true policy is for the constitution and laws to leave truth and error alike free. We are willing Jews and unbelievers should have equal liberty with ourselves, but we cannot consent that while they are free to be Jews and unbelievers, they should be free to deprive a Christian, old or young, of his right to be a Christian, and to enjoy the rights of a Christian. That were liberty for them, but tyranny and oppression for us; when we yield them the right of con­science, we do it with the understanding that we shall retain our own right of conscience, and we cannot understand the liberty of conscience that would remain to a Catholic, if the Pope could be compelled to remand a Christian child back under Judaism.