The Statesman. — London, England, 1812-01-24 00:00:00

Mr' • • , • • • ,• ' • • •I • • I r •• • e • I • • •• $ • • • • • t • • • . • • • • • I • • ' I • • • • • • • • • • • 1 4 • . . •J r' I \ ‘l%ft. try eras obtained on payment of the costs by his son. He asked,was it becoming that persons s hould be punished in this manner for imaginaryoffences? Theuncertainty of obtaining justice, too, in this Court, he contend ed, was equal to a denial of justice altogether. In another case, the cost against a man and his wife. amounted to 521. In a case of defamation, where the Defendant was excommunicated for not answer ing, the cost against him amounted to 561. So it ap peared that the amount of these punishments, for he could call them nothing else, wss extremely uncer tain ; and that the obtaining of costs was really the object which was contended for, instead of the cor rection of morals. In these Courts, his Lordship could not help observing, that there was always to be found a commutation for penance and excommu nication. So much so was this the case, that Sir W. Blackstone, in speaking of the proceedings of that Court, says, that property is the best medicine for the diseases occurring in that Court. In all cases where penance or excommunication were enjoined, they were sufficiently satisfied by the payment of costs, /led if this atonement was made, the good of souls was entirely disregarded. In the distant Courts, no attention was even paid-to the absolu tion of souls, nor did it seem that they were aware even that such a process was required. It was evident, however, that the same publicity given to the excommunnication, ought to be Oven to the absolution. This his Lordship had no doubt was to be attributed to the ignorance of those persons as to what was their duty ; but still the ef fect of it was such as the House was called on to check. As to the case of Mary Ann Dixon, on hich he had grounded his promo application to the Ilouse, it was to be observed, that she was a minor. This defect, however, it might be alleged, had been cured by her appearance. That , non-appearance was a crime of a very deadly dye, lie found, from recurring to a case where a person, for not appear ing to a citation, had 'been confined for three years and a half. Under the Civil Law, however, he un derstood, a person who was a,t»inor was not liable to be sued, and was not even liable in costs. So fu tile even was it held to sue a minor in an Ecclesiastical' Court, that he found an instanc. , where it was held, that a per. .nit called on to appear for accusing another of cruelty and adultery, could not be compelled to appear in respect of minority. This being so, he could hardly conceive that a case could be conceived in which a minor could be rendered answerable in a Civil Law Court. There was another great irregularity in this case of Mary Ann Dixon. She was directed to do penance generally, but she was not told in what respect she was to do it ; and her mother applied again and again to be informed in what manner her daughter should purge herself ; but this information was denied her. His Lordship could mention other cases where proceedings had been held in some of these inferior Ecclesiastical Jurisdictions, even after prohibitions of the Court of King's Bench. But if Courts would so proceed, must not a stop be put to their actings, and to the grievances thence arising ? There was a particular class of cases peculiarly de serving of attention, and of every degree of reprehen sion with which the Ilouse could regard them—he meant Defamatory Causes, which were often brought for the gratification of the worst passions of the hu man mind—malice and revenge. He referred to the case of a woman, who having been sued for defaming the character of a person notorious for keeping a house of bad fame, the Judge of the Court where the cause was brought, on the narrative that he had to provide pro solute (wind, and having the fear of God before his eves, ordered the Defendant to declare that she had been guilty of an infamous calumny, and that the party injured was restored to her fair fame. Yet, by such decisions as these, were persons of the description alluded to supported. his Lordship was aware he had not done justice to the cause he had espoused ; but even those facts which he had stated, he presumed to think, were sufficient to ground him in moving for the Enquiry which he was now about to propose. At the time of the Reform ation a regulation of these Courts had been pro mised, but no such measure had ever yet been carried into effect. It had frequently since been talked of, but nothing had followed in consequence, and the House would not be inclined to think, that a system which required reformation upwards of a century ago, had got much better by that lapse of time. His Lordship concluded by moving, That a Committee be appointed to examine into the practice of inferior Ecclesiastical Jurisdictions, to examine if any, and what, reforms are necessary in the proceedings of those Courts, and to report thereon to the House. The motion being seconded, The Hon. W. HERBERT observed, that the stutement of his Noble Friend pointed out many ra dical objections to the state of the law, but not to the administration of it as practised in the Court, over which a Learned. Judge, whom he had now in his view, presided. He agreed that it would be de sirable that the law should not continue as it was, in many of the respects alluded to by his Noble Friend. Bet still, such was the law, and an enquiry into the proceedings of inferior Ecclesiastical Courts would not have the effect of doing away the evil. The evils complained of in a great measure arose from the jea lousy of the Courts of Common Law, in regard to the proceedings of the Ecclesiastical Courts, which compelled them to have recourse to a circuitous mode of giving effect to their decisions. If the Ecclesias tical Courts had proper authority to enforce its deci sions, the expellees would be small, and the effects of their sentences would be infinitely less burden some than they were now felt to be. By the Act of the sth Elizabeth, the Writ de Rxcommunicato Cu ?lend() was first returnable to the Court of King's Bench, this caused an additional expence. The fact was then certified to the Ecclesiastical Court, and then a writ for the delivery of the party ar rested into the hands of the Ecclesiastical Tribunal was issued. Thus the anxiety which the Courts of Common Law felt for the liberty of the sub jee, as far as the Ecclesiastical Courts were con eeenod, enhanced the matter of costs, and produced an very inadequate to the original offence. It appear ( d to him (Mr. Herbert) to be desirable that *his law, as it now stood, should be reviewed, and also th a t w person shosid have any sort of eccle siastical corbmitted to him; who wps not fully ame n vent in ecclesiastical matters. The ap pointment o f a Committee, howevei, could not give relief ja ai\ly one of the points to which his 1,10- - ,erairmei tHE STATESMAN. 111•11 111..... ble Friend had alluded. There was one subject to which his Noble Friend had alluded, which, he con fessed, seemed to him to be of very great import persona were appointed to exer ciseauthority in inferior jurisdictions, a n c import ance —namely, ecclesiasticaln ame I y , th at without possessing the reqiiisite qualifications. The Statute required that no Chancellors or other officers of inferior jurisdiction should beappointed, unless were persons skilled i n the civil law, and alio in ' ttreypractice of it. This enactment, however, was not only eluded, but it was expressly disobeyed. Ile had in his eye an lion. and Learned Friend ,of his, who filled the principal judicial situation in our Supreme Ecclesiastical Court (Sir William Scott), and, he could only say, that if all the Ecclesiastical Jurisdic tions in the kingdom were equally attended to, we should hear -of no complaints such as those now stated to the House by the Noble Lord. The clause in the statute provided, That no person should be qualified for any ecclesiastical office of a judicial na ture, unless he were 26 years of age, skilled in the Civil and Canon Laws, and practised in them. This Act passed in the year 1603. In the year 1616, a Petition was preseuted to the Archbishop, complain ing of the appointment of a son of the then Bishop of L'Andall to one of those inferior jurisdictions, without his being duly qualified according to law ; and on this representation the person objected tp was removed. In tli'd . year 1625, a similar representa tion was made as to the son of the Bishop of Here ford, who was removed in like manner. An appli cation was some time afterwards made at Common Law, to remove a p.l-son of the name of Sutton, which was refused. Bat in the reign of King Wil liam, on an pligation made to remove a person of the name of Jonas, from out' of the inferior ECClcw siastical Jurilldictions, on the ground of his not be ing duly qualified, he was accordingly removed. It was obvious, therefore, that the law was at one tine istrictly acted up to and enforced, and that it was I not deemed enough that persons app ointed should have practised, but that they should also be skilled lin the Civil and Canon Law. It had now, however, become too much the practice for those who had the , patent right to such appointments to imagine that I they were entitled to appoint their own sons or other ' relations , __ without at all. regarding their qualifica tions. This was a matter of great importance, and deserving of bring strictly looked into; for, waist ever the law was, if it was not duly administered, it was of little moment. A Committee he (Mr. Her bert) was of opinion, could be of no service to re medy this evil. Mr. Glt KNF EL.'. said a few words expressive of a doubt, whether in the case of Mary Ann Dion there were any proofs of minority before the Court. I Sir W. SCOTT thought that the Noble Lord was not quite apprised of the extent of his motion, and of' the great number of inferior Courts of Eccle siastical jurisdiction in the country. lie was far from being of opinion, that, if necessary, the House ought to shrink from their duty on this subject, how , ever laborious; but, he conceived, that unless it were proved absolutely necessary, they should pause before they concurred in the motion of the Noble , Lord. Let the consequence be considered, of bring ing up for examination from every quarts/ vast number of persons, at an expence for the petty emoluments of their respective situations would I afford no adequate compensation. If it were proved I that there existed mischievous and unprovoked o p . Ipression, then, and not till then, ought the House to consent to the examination of the subject. Before, he entered on the general question, he would advert to the constitution of these Courts, not meaning, however, to follow the Noble Lord through those regions of fancy into which he had wandered, when he had described circumstances of ancient date, in no wise connected with the existing state of the Courts themse;ves. The employment in which the Noble Lord seemed to think that the Ecclesiastical Courts were principally, if not wholly, engaged, formed in truth hut a small portion of their occu pation.. They were , Courts to which the administra tion of no inconsiderable part of the civil law de volved. They had to decide on matrimonial and tes tamentary law ; on tithes, and on other civil rights. He did not mean to say that if a new arrangement were making, it might not be advisable that the de termination of such questions ought to be left to Consistorial Courts, but he contended, that situated as they were, it had not been shewn that there ex isted in those Courts any evil or abuse greater than what was inseparable from all human establishments. From the printed papers which the Noble Lord had put into his hands, as the ground oe which his Mo tion proetseded, it appeared that in thirteen years there were but seven complaints of the nature allud ed to. Did that exhibit a sufficient necessity for Parliamentary enquiry ? The Noble Lord represent ed the evils of which he complained as arising from a wish for the emoluments of office. It was not so. Beery man went into those Courts as he went into any other Civil Courts. Much had been said of the hardships suffered by those who were cited but for small sums. The smaller the . sum, if justly due, the greater was the error in not paying it. With respect to the Church Rates, persons were as much bound to pay them as they were bound to pay Poor Rates. If they refused, what could the Courts do but en force their authority ? If those persons, therefore, to the injustice, in the first instance, of non-pay ment, added the injustice of defending their con duct, who was to blame for the consequences, the party who drove, or the party who was driven to litigation ? The Noble Lord complained that the Petitioner, in whose case the present discussion origi nated, having been a minor, had been illegally treat ed. But this was not true ; for defamation, of which she had been guilty, was a mixed case, and was that for which a minor was answerable, and liable to punishment. There was nothing wrong, therefore, in the case, .. as far as minority was concerned.-- He would state to the House what was the ordinary mode of proceeding in such cases. The party ac cused was' cited—appeared--performed penance, an d paid the costs. But the penance was not that of which lawil:rta:ll444l'was.ytheitetasidracce:ettichme:u:trYherefmsess cri t or andin g in a sheet,Tdricetinhemarnescs!os.blic:trusAitsedhlleigdto:rititottiWastheidea,saureesd: i re , sod to th e presence of the Illniitee e nd, the 110s 11" s ailli ;ft 141 salfeld "Pel eVd t id ne t ap p ear to t it s citation , s or if, appearing, made a dishonest defence, throw ing every possible obstacle in the way of the Court, all the evil that followed was to be ascribed not to the Court, but the originators of the mischief. It might he said, however, that in some cases of defamation, the parties defamed deserved to be so. Would that justify the defamer? It would not by any law. It would not by the Ecclesiastical law. If the person defamed had committed any offence, that person was amenable to the law ; but no one for any single act ought to be exposed to private slander during the 1 whole of life. As to those parties who were stated by the Noble Lord to have been so poor as to be un able to employ a Proctor, he would ask, did they ap ply to sue and to he sued in forma pauperis? Had that been denied them ? If they did not do so they I placed themselves in the situation of comrion liti gants. A great outcry had been raised against ex i pence, but the expence complained of was un i avoidable, from the process to which, in such cases, the Ecclesiastic,all Courts were obliged to Iresort. The expences, however, would be but trifling, were it not for the obstinacy of the parties accused. The House would remember that the ex peaces of all Courts were much augmented by the duties on stamps, which the call of public necessity obliged Government to impose. He hoped he had I now said nearly enough to make it appear, that the Noble Lord had not made out a case that called for the enquiry he bad proposed; though enough of ma i lignant industry had been exerted (not by the Noble Lord himself, he was certaih) to bring forward every topic of abuse that could he brought forward against those Courts, still no act of injustice had been proved. That cases of hardship had been adduced, lie was ready to admit ; but still, whatever the sufferings of the party concerned might be, the law while in ex istence should be kept up, and no one be suffered to hold himself above its summons. He hoped the i House would see no reason for entering into an en quiry so troublesome and so iucouvenient to the par ties affected by it, as that which the Noble Lord ! had recommended. It might be proper Nit au al ' teration sntuld be made in the law, but that was not the question at present before the House. He thought it might be well for the process of excommunication to be done away, and some process substituted, that would be less expensive, less oppressive, and less unseemly [loud cheering], and he was certain that it was in the power of Parliament to grant no b oon i that would be more gratefully received by those who t practised in those Courts. Sir SAMUEL ROMILLY declared, that the ar i guments which he had just heard. from the Right Hop. Gentleman, entitled as they were to all that I weight which never failed to be attached to whatever fell from him, had not satisfied him, that it was not the duty of the House to go into the proposed en ' quiry. It did not appear to him that this enquiry t was of that extensive nature which it was considered I to be by the Right Hon.-Gentleman. The words of the Motion, indeed were, that the proposed Com mittee should examine -into the state of the Ecclesias ticall Courts, but if it should be thereby unde r st ood that the Committee was bound to investigate all the late proceedings of each particular Court, the labour \devolvedsisithem must be endless. But his own view of tata ;wpm. , this, that it would be simply Weans bent on them to examine the cases already specified, ; and to obtain such general information as might jus tify them in coming to a general conclusion as to the nature, constitution, and administration of the Courts in question. All that had been urged by the Right Hon. Gentleman in opposition to the motion was re ducible to this, that the administrators of these Courts of Ecclesiastical Jurisdiction ought not to be ren dered culprits, or brought to the bar of public en quiry. But the motion of the Noble Lord imputed misconduct to no one, it merely stated that a case of extreme suffering, as every person in the House must acknowledge it to be, had appeared, and the question was, whether this hardship sprung from the lave, or from the mode in which it wasadministered.—[ Hear, hear.] —His own belief certainly was, that the evil arose from the defects of the law, and this opinion he felt the more strongly, because he was countenanced by an authority so high as the Right Hon. Gent. who had spoken before him. That Right Hon. Gent. in the conclusion of his speech had distinctly expressed himself in favour of en alteration of the existing law. The House had heard in what deci sive language the present state of that law had been condemned, and he trusted it would be an additional inducement with the House to assent to the motion, that the Committee would enjoy the powerftil assist ance of the Right Honourable Qentleman in carry ing the requisite improvements into effect. There would be then no hazard of any cry of innovation, because the 'Right Hon. Gent. was too well known to entertain a sufficient respect for ancient usages, I and teo warmly to admire established institutions. to be in any danger of meeting that resistance and ditfi ,' culty, which any attempt at reformation proceeding from himself would probably encounter.—[Hear, hear.]—The itt. Ilon.Gent. was sure of support, and had no obstacles to impede his progress. He hoped the House would not forego the opportunity now presented. This subject had long worn a suspicious aspect. He believed he was correct in stating, that no alteration or legislative provision whatever had been enacted with respect to the Spiritual Courts, since the period of the Reformation. What then I was this sentence of excommunication ? It disquali fied the party from taking the communion, it de-' prived him of the rights of Christianity, and incapa citated him either to give evidence, or commence a , suit in any Court of Justice. The wretched woman i whose cue had been detailed, although not yet an adult, had been confined in jail two years among malefactors, and labobring under all her other mis fortunes, was rendered incapable, in the case of violence offered to her person, from prosecuting the violator.—[Hear, hear !] —lied a murder been com mitted in her eight her evidence must have been re jected, and the crime have thus remained unpunish ed. In the earlier periods of our history, this pu nishment had been reserved for heinous sins, it was now applied to the son-paymeot of cods.—' Bigbo l*son, in his Codex, had complained of 'this " and James_ the First had de.. aryl the then Archbishop of Quitorbory V) ailinifii v • ParliaMent *lie grit = ant del lb th ' oglit these ea *Geld _ reverted fbt tt'etallinke. Ire llatt b l irit es. 1 Chancellor l •litiovieY t.~ l it' Xt. JeadiSie &Vat • 10,1111111. ... ....~~TI 110 g and some of the Bishops were accordingly direottsi to prepare and bring in a Bill for this purpose. The Bill, whether introduced or not, never passed, and the evils of Which King James complained to his Par, liament continue to exist to this hour.—yleter, hear They had continued to exist because not complain e d of ; and they had not been complained of ht. , . cause they were felt only by the lower classes— [Hear, hear !]—lle perfectly agreed that a wornaa's reputation was a fair and proper object of legal pro tection ; but was it just that, while calumny w l d slander were permitted to circulate unpuoisheda mon the higher orders of society, a coarse word or a hasty expression should draw down upon the poor and the defenceless the heaviest vengeance of the !Its . ? -To him it appeared, that when it was recollected what I was the habitual language of such persons, Kosocu. . _ tions of this nature were strong proofs of the malig. rant spirit residing with the Prosteutor. or, hear !]—The Right Honourable Gentleman hal ►ery eloquently enquired, ought the reputation of umlaut to be wantonly sported with ? He thought cer tainly not ; but he could not help feeling some sur. prize at the st , lect expression and delicate colours which the Right Honourable Gentleman had used in this instance, when it was in a►idence that the abusive words used were ' strictly applicable in fact, the prosecu rix in that case being notoriously the keeper of a house o: ill fame. The question wasp therefore, whether these facts called for inqniry abs sure , f and the probable resul of such an inquiry would be some improvement, ailed as the Committee might be with the talents and experience of the Right llos I o e n o was u r le ten - I t i l ° e m u r a n i ' I e u ( a ; s fortunately Gentleman. ntl ematl. 'r he itigl‘ situated, t support, and safe from the attacks of the enemies of innovation. The Ecclesiastical Courts, as now con. slanted, could only carry their decisions into effect by the circuitous aids of the Civil Courts, that is, by means the most .expensive and objectionable. It would be fortunate, therefore, for the country, and honourable to the Noble Lard who made the me. tion, if the sufferings of this wretched woman shoal(' furnish the occasion of accomplisailig, c Idea such favourable auspices, so d.,irable a reformation. Ile confessed he could not ses the force of that objectimi of the Right Honourable Gentleman, which he had heard on former occasions, that inquiries of this na ture had the effect of briaging the Courts into con tempt. The true means of rendering establishments respected by the people was to snake them respecta ble. [Hear, hear!] If suspicions were found to ex'st, let inquiry be made ; if those suspicions were unfounded, they would then appear to be so ; and if they were, on the contrary, just, improvements should be introduced, and the public mind would rest contented. Sir JOHN NICIIOL went into a defence of the Ecclesistical Courts. If the party refused to submit to the penalty awarded, and to pay the necessary costs, obedience was to be enforced by such a process as could be lawMly used. In Coates of temporal jurisdiction, if the party eondemnstl had not the means of paying, exactly the saute consequences en su.d ; hut yet no man would go ths length of say ing that on this account a Committee should be ap pointed to enquire into all the temporal Magistracies ;throughout the country. The age of the person, on which so much stress had been laid try the oble Lord, was really no good argument why she should not be amenable to punishment ; for minors were not unanswerable for crimes of the nature of those sub ject to the cognizance of the Ecclesiastical Courts, any more than minors were to be chargeable with the highest offences. it had been stated that this was a mixed suit, partly civil and partly criminal. — And as to what had been stated respecting the po verty of the individual, it certainly could not en title any person to commit injuries with impiniiis, or afford any protection from the necessary pun;i:!- meat of the law. If the individual be pool, there was no greater hardship in Ecclesiastical, than in other Courts; for it was in the poet's of such a person to defend in forma panperig. IC the lower orders courant offences, dime must be a remedy for, these offences, as well as a remedy fur those of every other class of the community. The nature of penance had been already explained by his Right lion. and Learned Friend, and it eould appear that it was by no means so formidable as might at first view be imagined. The costs in this case amounted to 111. 7s. I Id. and if this Hama should appear large, when to be defrayed by a poor individual, it was necessary to inquire how this expence was occasioned. It was occasioned by ob stinacy. if the 'party had at once confessed, the whole expense would only have been about twenty three shillings.' It would be very hard if the es pences necessarily incurred through the 'enprop..l conduct of the offender should be thrown upon too innocent person ; and the Court had no process by which it was possible to compel the payment of these expences, but excommunication. He was as ready - as any person, if a more sufficient and satisfactory process could be substituted to excommunication, 10 consent to its adoption ; but did it require the ap pointment of a Committee to point out this? Surely . it was a very circuitous mode of going to work, to have a Committee appointed to examine into the situstion of the inferior Ecclesiastical Jurisdictions thrall;'- out the country, in order to find out that excommu nication was a roundabout mode of proceeding. .1 1 ° was ready to allow that a Spiritual Court was nut most favourable sound to the ear ; but it was os!S fair to take into consideration, that hardly one in a year, of a Spiritual nature, occurred in t..ts, Courts, which were intsrwoven iu the judicature the country. Wills and testamentary papers cousii tuted a very great part of their whole occupation ,; and auother great branch was matrim onial cause oy questions respecting the validity of marriage c tracts for enforcing those contracts , relieving Ii i , cohabitation, separation on account of adulterf, 3'' so forth. Other descriptions of c auses came irio:e them, such as all those respecting tithes. They 1 W• ' .almost always occupied with qu estions of civil s It was no doubt true, the offensive name still coot: nued, and the odium was much increased by the u"e of excommimication. This mode of excommunici" Lion was objectionable, from its being both ci rcuitous and expensive.. In a Court of Common Law- "; Epley, when a verdict or sentence was obtains,: esseatiou was at on directed; either against geode or Versos" but is the E l ecleimstic al Courts that coald be done was to excommuuicate, Mul tL •