§ The clerk, on the motion of lord Folkestone, having read the Petition of Mary Ann Dix, (see p. 99.)
said, that it was not because his motion would be confined to the mere case of the Petitioner, that he had requested the Petition they had just heard to be read, but in order to open to the consideration of the House the nature and intent of the abuses to which he now rose to call their attention. When he first read the Petitioner's statement of the difficulties and grievous hardships to which she had been exposed, he did not think that they made a fit case to bring before parliament; because he could not believe it possible, that the laws of the country were inadequate to the remedy of evils so oppressive and unjust. When, however, upon further enquiry, he found that there was actually no remedy whatever, he was induced to examine into the nature, origin, and general history of the Ecclesiastical Jurisdictions, and the result of that enquiry impressed him with a conviction of the necessity of parliamentary interposition to rescue the subject from their unconstitutional and exorbitant power. It was because he thus found that abuses existed in the Ecclesiastical Courts, which had elsewhere no remedy, that he was induced to extend his motion beyond the particular case of the petitioner; and lest the 296 House should think that he did not submit sufficient reasons for this extension of it, he begged to state the origin and history of Ecclesiastical Jurisdiction in this country, and its state at present. In tracing the Ecclesiastical Jurisdiction to its origin, the noble lord did not think it necessary to go higher than the time immediately preceding the Conquest. At that early period of our history, the ecclesiastical and temporal power went hand in hand. The bishops and barons sat in the same hundreds and councils together. William the conqueror, however, no sooner had the power, than he separated the spiritual and temporal jurisdictions from one another. Whether that monarch thus acted from the love of adopting the fashions of his own country, as mentioned in the old chronicles of Henry the first, or whether he wished to get rid of the Trial by Jury, that valuable remnant of gothic jurisprudence, he would not attempt to decide; but certain it was, that the first difference between the spiritual and temporal jurisdiction was established by William the first. It was he who laid the foundation of that power which afterwards rose to such enormous and fearful magnitude; and he was confident that in thus stating the origin of the Ecclesiastical Jurisdiction of which he now complained, he was not enlisting the prepossessions of the House in its favour. The origin, in fact, of this separate Ecclesiastical Jurisdiction was in the effort of a successful invader of this country to put down its ancient civil institutions.—In the reign succeeding that of William the first, these courts from various causes obtained no great, additional support; but as the clergy of those days well knew how to improve any footing they got, it must be supposed, though history did not render it apparent, that they continued to encroach and acquire strength. This appeared to be the case, as even in the vigorous reign of Henry 2, they had become so powerful, that the archbishop of Canterbury told the king of the abridgement of his power of nomination to benefices, the Pope having taken that privilege from all laymen. After this period, followed the troubles which harrassed the land, during which the clergy were not idler and continued systematically to encroach upon the other authorities of the state. Indeed, they never failed to take advantage of all troublesome times to press their own purposes, and push forward in the acquisition of 297 power. In 1141 they were so strong as to hold a council for the purpose of placing the empress Maude on the throne, and Henry 2, after a long but ineffectual struggle, was compelled to submit to the haughty impositions of Thomas-a-Becket. That king was forced to sign six articles before he could make his peace with the church, by one of which it was conceded, that a layman breaking the peace against an ecclesiastic, should be tried by the bishop; and by another, that no ecclesiastic should be amenable to the temporal power. The power of the clergy, and of their courts, continued to increase during the military reign of Richard 1, and in that of king John, had risen to such a pitch, that the king himself was forced to surrender his crown into the hands of a priest, and accept it as a grant from the ecclesiastical power. Thus, for a long series of years, he had traced these Courts, always on the watch for means to increase their authority. Yet even in the worst periods of our history, they never were favourably received by the legislature, or amalgamated with the feelings of the people. They were always remonstrated against, and many endeavours were made to put a restraint upon them. The temporal courts unceasingly opposed their encroachments, and as favourable circumstances occurred, in some small measure curbed their ambition. The most enlightened lawyers saw their ill tendency, and tried to guard against them. Lord Coke was of opinion, that they had encroached on the temporal courts; and in the reign of Edward I, an act was passed for limiting their powers. Again, in the reigns of Edward 3, and Richard 2, it was found necessary to restrain them, and the two famous acts for that purpose were passed into laws: yet they were always gaining strength when wars or intestine broils agitated the country, and left them an opportunity of pressing forward. Thus, in the reign of Henry 4, they had acquired such potency, that the king and clergy overpowered the parliament. When the first seeds of the Reformation were sown by the Wickliffites and Lollards, it was deemed necessary to pursue some measures to keep within bounds their overgrown power, and many fluctuations ensued. They were sometimes curtailed and sometimes acquired force by different alterations in the state of the kingdom, and as opportunities offered for abridging their authority or fa- 298 vourable to the accomplishment of their views. This was the state of the case in the reigns of Henry 7, and 8. During the former, a circumstance occurred which, as lord Bacon stated, led to what happened in the time of Henry 8. In consequence of a dispute in the ecclesiastical courts and parliament, an act was passed to make the clergy responsible to the temporal courts. On this, the dean of Winchester preached a sermon in the cathedral church of St. Paul, in which he declared, that all those concerned in passing the act were enemies to the church. Not content with this, he published a book on the same subject. These proceedings enraged parliament, and Henry 8 taking part with them, the temporal courts at last prevailed. A few years after, the king recommended an inquiry into the abuses existing in these courts, and this led to the act against the non-residence of the clergy. The divorce of the queen, and other measures connected with the ecclesiastical history of this celebrated reign, were too well known to the House to require a comment. During the earliest progress of the Reformation, commissioners were appointed to draw up a code of ecclesiastical laws for the regulation of these courts. Archbishop Cranmer, with that zeal which distinguished all his efforts in the cause of reform, made an extract of their canons to shew the necessity of this alteration; but, notwithstanding all this, nothing was done at that time or since. These canons, so exposed, remained still in force, and Cranmer's plan and regulations never being sanctioned, had become a dead letter. Of these regulations he might here notice, there were in number fifty-one, and one of them went to remedy the very point of which the Petition complained, namely, that relating to excommunications.—In the 5th year of queen Elizabeth, the control and superintendance of the ecclesiastical courts were vested in commissioners, and during the whole of that reign there was an invariable and universal system pursued for restraining their powers; but all the authority of the queen, and all the ability of the high court of commissioners, seemed to have been insufficient to accomplish that purpose. Early in the reign of James I, that monarch had entered into a literary controversy on the subject, and canons for their government were framed, but never having been confirmed, they also dropped to the ground. In the time of James 2 299 an attempt was made to renew the ecclesiastical commission; but, as before, nothing was done. The same remark applied to the reign of William 3, when the commissioners were appointed; bat the high church party ultimately prevailed, and all reformation was prevented. Nothing was accomplished, and the only acts that had been passed since relative to the subject were those of the 26th George 2, and 27th George 3. From this the House would see, that since the period of the Reformation no progress had been made in amending the constitution of courts which, during the whole course of the English history, had been viewed with well-founded jealousy, and thought worthy the interference of the legislature to impose restraints upon their accumulating power, and to rectify the abuses in which they abounded. Their canons were still the same as by the act of Henry 8, and no authority prevented their acting upon the oldest and most tyrannical ordinances that ever were framed in times of the most bitter bigotry.—Turning to the consideration of these courts, as now constituted, though he was ready to acknowledge that many of those who presided in them were men of great legal talent and ability (some of whom he now saw in the House), and every way qualified for the situation they held; yet, on the other hand, he was bold to say, there were also many of no legal habits or ability, at the head of courts, who were utterly incompetent to discharge their duties. Some of them had their doctor's degree conferred on them for no other purpose but to be rendered thus eligible to a situation for which, in every other respect, they were entirely unfit.—The noble lord then took a review of the Petition of Mary Ann Dix, and noticed that the ecclesiastical courts had only one mode of punishment, that of excommunication, which by the 5th of Elizabeth, could be followed up by imprisonment. From what he had stated, he inferred that a power so great ought not to be entrusted to such hands. But there were many other circumstances connected with those courts which required reformation.—Their charges were exorbitant and intolerable, and the fees for contempt and attachment more grievous and burthensome than those of the highest civil court in the kingdom. To support these opinions, he would quote the case of a woman of the name' of Robinson, who did not appear on being cited. Upon this she was excommunicated, and 300 subsequently imprisoned: and before she could obtain her release, which was after a confinement of three years and a half, was obliged to pay all costs, amounting to 11l. 12s. As he was adverting so much to excommunication, perhaps it would be as well to tell gentlemen, who might not be apprized of its consequences, to what extent it went. Excommunication cut a person off from all civil rights; they were looked on as heathens and publicans; they could succeed to no inheritance, as they could bring no action: they were not competent to be jurors or witnesses in a court of law: and, if they died, they were not entitled to christian burial. Such were the evils attendant upon a sentence of excommunication. He had further to notice a singular, and, in his mind, a very reprehensible circumstance, connected with the case of Robinson. The name of the sheriff of Bristol was scratched out of her commitment, and that of the sheriff of Gloucestershire inserted in its stead. This was a very dangerous, and apparently, illegal act; and the poor woman was thereupon imprisoned in Gloucestershire, instead of Bristol, where she was excommunicated.—There were a number of other cases, which he could cite in proof of these grievances and abuses, all of which he was prepared to authenticate at the bar of the House. Among others, he would notice that of John Williams, a labouring man, excommunicated for not appearing to a citation for 17s., a rate imposed for the enlargement of the church-yard: also the case of a man of the name of Robins, for non-payment of tithes, to the amount of less than 40s. against whom, therefore, a summary remedy might have been had; but, instead of this, the cause was carried into the ecclesiastical court. This man had put his cause into the hands of a proctor, who, not appearing in court, was declared to be contumaceous, and his client, through him, to be contumaceous; who was thereupon excommunicated, and imprisoned for months, till liberated, on payment of 35l. costs.—Another man, Thomas Lewis, was excommunicated for contumacy, in not putting in a written answer to a libel charging him with 5 or 6s. for some purpose or other. This man was a pauper, and could neither write himself, or pay any one for writing for him; and yet he was in gaol for three years, until he was discharged under the Lords' Act. On these cases he put it to the House to say, if it was fit and right that such of- 301 fences should be so punished? The fines in these courts far exceeded the fines in the high court of chancery, and the ex-pences were not only large, but uncertain, and uncertainty was one of the greatest evils in law. In similar cases, where the parties were punished for not appearing, they amounted in one instance (Robinson's) to 11l. 12s. and in another to 26l.; and, indeed, the only purpose of these excommunications and imprisonments seemed to be, the extortion of exorbitant fees. One person for contempt, in not doing penance, was fined in costs 10l. 5s. A man and his wife, cited for the same offence, came off for the payment, the former of 27l. and the latter of 24l. In another case, for defamation, the costs amounted to 56l. It was evident, therefore, that it was not the correction of morals, but the payment of costs, which led to these proceedings. Nor was this a new doctrine, for these were the old charges urged against these courts; their excommunications for trifling offences and commutations of penances. The latter, indeed, did not now exist, but all the evils of the former, as he had sufficiently shewn, remained in full force. Mr. Justice Black-stone, among others, noticed their extraordinary bartering of justice, and had remarked that, in all their acts, they proceeded on the principle, that poverty was the best medicine for the soul.—The noble lord said, it was needless to swell his list of cases. He knew of persons who had been excommunicated for not performing penance, and who afterwards were discharged on paying costs, without a retrospect to the punishment to which they were originally sentenced. In the distant courts, no attention was even paid to the absolution 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 excommunication, ought to be given 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 effect of it was such as the House was called on to check. With regard to the case of Mary Ann Dix, on which he had grounded his present application to the House, 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, he found, from recurring to a case where a person, for 302 not appearing to a citation, had been confined for three years and a half, Under the civil law, however, he understood; a person who was a minor was not liable to be sued, and was not even liable in costs. So futile even was it held to sue a minor in an ecclesiastical court, that he found an instance where it was held, that a person 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 think 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 Dix. 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.—The noble lord said he 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 could so proceed, ought not a stop to be put to their acting, and to the grievances thence arising? There was a particular class of cases peculiarly deserving of attention, and of every degree of reprehension with which the House could regard them—he meant defamatory causes, which were often brought for the gratification of the worst passions of the human 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 salute animœ, and having the fear of God before his eyes, 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 inquiry which he was now about to propose. At the time of the Reformation it was allowed that something ought to be done on this subject, and bishop Cranmer wrote a book to that effect Nothing however had since that time been 303 done, and he hoped the House would now make a beginning by agreeing to his present motion. The noble lord concluded with moving, "That a Committee be appointed to enquire into the state of the jurisdiction of the inferior Ecclesiastical Courts, and to consider whether any reformation is necessary to be made therein, and to report their opinion to the House."
The Hon. William Herbert
observed, that the statement of his noble friend pointed out many radical 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 desirable that the law should not continue as it was, in many of the respects alluded to by his noble friend. But still, such was the law, and an inquiry 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 jealousy 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 ecclesiastical courts had proper authority to enforce their decisions, the expences would be small, and the effects of their sentences would be infinitely less burdensome than they were now felt to be. By the act of the 5th Elizabeth, the writ 'de excommunicato capiendo' 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 arrested into the hands of the ecclesiastical tribunal was issued. Thus the anxiety which the courts of common law felt for the liberty of the subject, as far as the ecclesiastical courts were concerned, enhanced the matter of costs, and produced an evil very inadequate to the original offence. It appeared to him to be desirable that this law, as it now stood, should be reviewed, and also that no person should have any sort of ecclesiastical authority committed to him, who was not fully conversant in ecclesiastical matters. The appointment of a Committee, however, could not give relief in any one of the points to which his noble friend had alluded.—There was one subject to which his noble friend had referred which he confessed seemed to him to be of very great importance; namely, that persons were appointed to exercise ecclesias- 304 tical authority in inferior jurisdictions, without possessing the requisite qualifications. The statute required that no Chancellors or other officers of inferior jurisdiction should be appointed, unless they were persons skilled in the civil law, and also in the practice of it. This enactment, however, was not only eluded, but it was expressly disobeyed. He had in his eye an hon. 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 jurisdictions 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 nature, 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 presented to the Archbishop, complaining of the appointment of a son of the then bishop of Landaff to one of those inferior jurisdictions, without his being duly qualified according to law; and on this representation the person objected to was removed. In the year 1625, a similar representation was made as to the son of the bishop of Hereford, who was removed in like manner. An application was some time afterwards made at common law, to remove a person of the name of Sutton, which was refused. But in the reign of king William, on an application made to remove a person of the name of Jones, from one of the inferior ecclesiastical jurisdictions, on the ground of his not being duly qualified, he was accordingly removed. It was obvious, therefore, that the law was at one time strictly acted up to and enforced, and that it was not deemed enough that persons appointed should have practised, but that they should also be skilled in 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 they were entitled to appoint their own sons or other relations, without at all regarding their qualifications. This was a matter of great importance, and deserving of being strictly looked into; for, whatever the law was, if it was not duly administered, it was of little moment. A Committee, he was of opinion, could not tend to remedy this evil.
§ Mr. Grenfell
said, that he had made some inquiry into this business, and understood the surrogates had minutely investigated the conduct of the cause, and had declared that all the proceedings were regular; and that as to the prisoner being a minor, from the contumacy shewn by not appearing to the citation, it was impossible the court could know any thing of it. If she had appeared: and pleaded her minority, the court could then have determined on it; but as the matter stood, they knew nothing about it.
§ Sir William Scott
said, he could hardly believe, that the noble lord who had brought forward the present question, was himself aware of the nature and effect of the motion he had submitted to the House. He trusted, however, that the House would pause before it agreed to go into an inquiry such as that proposed by the noble lord. Let the House consider what might be the consequences to others of their agreeing to such an inquiry; let them consider the number of persons who must be brought up from different parts of the country to be examined before the Committee, at an expence which their petty emoluments would but ill enable them to discharge; and he was satisfied they would require farther proof of the necessity, and also of the utility of such a Committee before they concurred in the motion of the noble lord for the appointment of it. The House, however, must also feel itself called on in justice to consider that this was a principle which attached to every court, high and low, namely, that every court, however, inferior its jurisdiction might be, was entitled to be held in a decent state of respect, till it was proved to have done something to forfeit its character. When this should be proved, it would be time enough to hold out such jurisdiction to public odium; but till then he could not agree to any such measure as that proposed by the noble lord.—He should not follow the noble lord into those legends of antiquity to which he had had recourse. Many of the cases figured by the noble lord, now no longer existed; and the expences of the proceedings in ecclesiastical courts were not such as he supposed. The points which ecclesiastical courts were called on to decide, however, were not so limited as the noble lord supposed. It was their duty to decide on the matrimonial and testamentary law; on tythes, and on many other of the civil rights of mankind. He 306 should not say that such jurisdiction ought to be conferred on the consistorial courts; but of this he was certain; that for centuries they had enjoyed such a jurisdiction; and that this being the case, that House would not wish, without mature deliberation, to interfere with, far less to overturn them. Our laws, made in barbarous times, and founded on feudal principles, had been improved as we advanced in civilization. So also had our ecclesiastical law been improved, and under the guidance of our courts of common law had approximated to the changes in the situation of the country. It was said, however, that our inferior ecclesiastical jurisdictions had acted improperly in many respects, and for those improper acts they were now, on the complaint of the noble lord, called on to hold up their hand before the bar of the country.—The noble lord had evidently been assisted in drawing up the cases which he had submitted to the House, and he was sorry to say that the information that he appeared to have received, was extremely defective. Out of the multitude of courts that possessed an ecclesiastical jurisdiction, and from the whole extent of its exercise, the noble lord had been able to select only seven instances of what he called abuse or oppression. He had also greatly erred in terming those causes they were in point of fact merely suits, the ordinary and regular process appointed for all those who claimed legal redress for an illegal wrong. The exchequer court, no more than the ecclesiastical courts, Could get rid of the duty of granting this process, or shut their doors against any individual who sought his remedy in the usual forms. Two of the cases adduced by the noble mover respected church rates, but the obligation was the same on the subject in this point, as in the instance of poor-rates. It was equally a just and legal debt in both cases. If in issuing a citation, the person supposed to be the wrong doer, did not chuse to appear, he certainly aggravated his offence, and if appearing to the citation, he should make a dishonest defence, he again added to the causes of his own hardship and suffering. As to the subject of defamation, this was, he felt it right to intimate to the noble lord, the only part of ecclesiastical jurisdiction which he had adverted to, that was connected with the doctrine de salute animœ. The noble lord, indeed seemed to have been been instructed very imperfectly, and he believed 307 he was right in saying that his instructor had been a proctor of no great eminence or practice, and whose talents and acquirements, perhaps, did not entitle him to more than he enjoyed. He entertained no doubt of the noble lord's fair intention, but he certainly on this occasion had undertaken to sail under inauspicious convoy.—The peculiar circumstances of this case had been asserted to be extremely severe; but was it not an important consideration, whether or no the characters and reputation of women should be insulted and reviled with impunity, and no protection be afforded by the law? Could any man of ordinary feelings endure that his mother, wife or sister, should be publicly and indecently branded with terms of opprobrium? It was no sufficient justification on any principle of legal analogy, that the offender happened to be a minor. Minors were held responsible for all transgressions against the criminal law. The proceedings in cases of defamation were considered as of a mixed nature, regarding both punishment and reparation. It was what was called 'casus criminals civiliter intentatus,' but there was no court of law in the country, in which the minority of the wrong-doer would be considered as an excuse. All the hardships which the present petitioner could complain of arose merely from her own contumacy. If she had appeared to the citation, what could she have been sentenced to, except the performance of penance, and the payment of the costs? The penance, inflicted in such cases, was by no means grievous; persons were not asked to go into church in a white sheet, or any thing of that sort; but merely to retire into the vestry-room, and in the presence of two or three of the friends of the injured party, to ask pardon and promise to be more guarded in future. This was certainly no very severe punishment; and as to the costs, they would not have exceeded twenty shillings in the first instance. No punishment could well be conceived lighter for such an offence. The noble lord would give him credit for some experience in his profession, and he could assure him that he had often known the peace of families entirely disturbed, and husbands parted from their wives, merely on account of such expressions used by strangers which the wife could not resolve to bring before the regular tribunals. If parties, by their own contumacy, made it necessary to appeal to the 308 temporal courts, to sanction the decrees of the ecclesiastical courts, they alone were answerable for the increased costs they would be obliged to pay; and it was hard to charge the expence as incidental to the proceedings in the spiritual courts. It certainly happened sometimes, that a person might in some degree deserve the reproaches thrown out against him. A woman might, at some time in her life, have had an accidental failing; and yet that would not give to every person a right to pursue her with reproaches in the public streets to the latest period of her life. It was evident that she was entitled to protection in such cases from the law, and that some moderate punishment ought to be inflicted on the offender. The expences of law proceedings in all courts, had lately been much enhanced by the stamps and duties which the necessities of the state had imposed upon suitors; but unless when the party chose to appear in formâ pauperis, the tribunals knew nothing about the circumstances of the litigants, or their comparative wealth or poverty. The cry which had been raised about the expence of the proceedings in the cases alluded to, arose from the length of time which the proceedings lasted, on account of the contumacy of the parties who afterwards complained, and the necessity of appealing to the temporal courts to enforce the sentence of the spiritual courts.—When these circumstances were duly considered, he trusted, that the House would not feel indignation even at finding that parties sometimes were put to considerable expence from persisting in their original injustice. He would allow, that the expence of the law, in many cases, pressed with peculiar hardship, on the poor; but still he feared, that this circumstance was inseparable from the condition of human society. At all events, the law must be maintained; the constituted tribunals must enforce submission to their sentences; and persons who were cited to appear before them, must be compelled to obey the summons.—Contemplating the case in all its various bearings, he would ask, where was the necessity which called on the House to saddle itself with an inquiry so extensive, so useless, and so inconvenient to the individuals concerned? He did not pretend to say, that the constitution of these courts might not be improved: in his opinion, a diminution of their number would be of service; but it was not a question which 309 could be discussed at present. As to the particular punishment by excommunication, he would wish some other were substituted in its place; and he believed that was the general wish of those who practised in the ecclesiastical courts. It appeared to him to be quite an abuse of a religious ceremony, and that it would not be difficult to find out a substitute for it which would be more efficacious, less expensive, less oppressive, and Jess unseemly. It appeared to him, upon the whole, that no case had been made out to call for so serious an enquiry; and he rather feared, that the facility of the noble lord had been imposed upon by malignant representations from other quarters.
Sir S. Romilly
, in what he was about to lay, had not the smallest idea of treating with disrespect those courts which formed the subject matter of discussion; connected as they were with the profession to which he had the honour to belong. But the arguments adduced by the right hon. gentleman had not satisfied his mind of the propriety of refusing all inquiry, nor did he conceive the motion to be of that extensive nature which had been asserted. It was true, the motion was for an inquiry into the state of the inferior Ecclesiastical Courts; and if, in order to satisfy that, it was necessary to examine every court of that description in the kingdom, that each of them was to be investigated, and a report delivered on their respective situation; if that were the case, the duty of the committee would be indeed extensive and laborious. But this was not the fact; nor could it strike any person's mind in that point of view. The business of the committee would be, of course, in the first instance, to investigate the cases immediately before them, to examine the state of the courts out of which they had issued—and not to go through every court in the country. It had been argued, that a very serious case should be established before a court was called, upon to hold up its hand, as a culprit, at the bar of public opinion; but, in his opinion, no imputation had been levelled at any court whatever; and, when cases of extreme hardship, for so the right hon. gentleman himself had designated them, were laid before parliament, was it not the duty of the House to see whether they had arisen from a defective state of the law, or from the misconduct of those who administered it? He did not believe that those cases originated in the improper behaviour of any 310 individual, but from the constitution of the Ecclesiastical Courts, and the faulty situation of the law. And what had fallen from the right hon. gentleman on that part of this subject, must have made a great impression on every gentleman who heard him. That right hon. gentleman in the conclusion of his speech had distinctly expressed himself in favour of an alteration of the existing law. The House had heard in what decisive 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 powerful assistance of the right hon. gentleman in carrying the requisite improvements into effect. There would be then no hazard of any cry of innovation, because the right hon. gentleman was too well known to entertain a sufficient respect for ancient usages, and too warmly to admire established institutions, to be in any danger of meeting that resistance and difficulty, which any attempt at reformation proceeding from himself would probably encounter. The right hon. gentleman 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, was this sentence of excommunication? It disqualified the party from taking the communion, it deprived him of the rights of Christianity, and incapacitated him either to give evidence, or commence a suit in any court of justice. The wretched woman whose case had been detailed, although not yet an adult, had been confined in jail two years among malefactors, and labouring under all her other misfortunes, was rendered incapable, in the case of violence offered to her person, from prosecuting the violater. Had a murder been committed in her sight, her evidence must have been rejected, and the crime have thus remained unpunished. A person in her situation was deprived of every civil right, and put out of the protection of the law; and the country was deprived of those exertions, and of the performance of those duties, which otherwise it had a right to expect. In ancient times, the most enormous crimes alone were thus 311 visited; but now, by the constitution of those courts, the sentence of excommunication applied to the non-payment of costs, or to the non-appearance of the party cited. This was so gross, that bishop Gibson in his Codex Juris Ecclesiastici Anglicani had complained of it. He observed, that punishing trivial offences in this way had brought the system into great disrepute. It appeared from the Journals of the House of Lords, that, on the 1st of April, 1606, complaint was made of the abuse of this power, in a Message from the king. It was there stated, "that his Majesty was informed of great abuses concerning excommunication granted by ecclesiastical officers, very often upon trivial matters. And though contempts generally of great or less quality, be punishable by the laws of the realm, according to their several natures; yet, considering excommunication is the greatest censure that can be given, his Majesty holds the same unfit to be but in great-matters;"* and the Lord Chancellor, the then Attorney General, and Mr. Serjeant Crook, were directed to bring in a bill to rectify the abuse. That bill, however, had either never been prepared, or, if brought in, had never been passed; and those evils which were complained of at that time, by this message, existed at the present moment. But why did they still exist?—why were they not complained of? Because the mischief fell exclusively on persons in the lowest situation of life. No one could dispute that the fair reputation of a woman was justly the subject of legal protection. But the coarse expression of an illiterate and low-bred woman, directed to another in the same line of life, was not fraught with those injurious consequences which the slander of the higher ranks of society, couched in courtly phrase, was likely to produce. Yet, if such a low character dropped an offensive expression, she was hurried to gaol, from whence there was no chance of liberation, except some humane person interfered and paid the costs.—He thought the language of the right hon. gentleman was misplaced, when in adverting to the case stated in the Petition, and looking to the parties connected with the suit, he had spoken in such general terms of female reputation: there was not the least reason to think that any* See Parliamentary History, vol. 1, p 1067.312 injury would occur to either of the parties in consequence of the coarse and vulgar language they had made use of. The right hon. gentleman had asked, if a woman, at one period of her life, had been guilty of an indiscretion, was she always to be reminded of it? Certainly not But this did not apply to the case stated in the Petition; for the complaining party was mistress of a house of ill-fame, at the very time the offensive words were spoken; and it was shocking to think that a woman, for applying that name, which the other party seemed to deserve, should pass two years of her existence in a prison. The fine language which the right hon. gentleman had used, did not answer what his noble friend had adduced, but merely glossed the matter over.—It really appeared to him, that the subject called for serious enquiry; and, perhaps, out of the sufferings of those unhappy persons, a great reformation might originate, which would prove a lasting benefit to the country; and certainly it must be a great source of consolation to the public, when persons of the high situation and extensive knowledge of the right hon. gentleman earnestly desired that such a reformation should take place. If an humble individual like himself were to set about a reform of this kind, he would be branded as an innovator. It was not so with the right hon. gentleman; he would have the support of administration in this great work: if he willed a reformation, it was done. The right hon. gentleman had said, that the Ecclesiastical Courts had not the power of imprisonment by a summary process. He was aware of that; but they had that privilege through the intervention of a court of justice; and they had, at the same time, and by the same process, an opportunity of increasing the expence, and of depriving an individual of every civil right: they had, in fact, the worst possible means of imprisonment. The country was high-ly indebted to the noble lord for agitating this question, from which he hoped and believed much good would result. The misfortunes of this poor wretched woman might perhaps give rise to an inquiry, for which posterity would ever feel grateful to the noble lord. If they examined the state of those courts, he doubted not the evils complained of would be found to arise from the situation of the law itself, and then they would have the assistance of the right hon. gentleman's 313 talents and experience in effecting the reformation. He knew not how it could be said that the inquiry would have the effect of bringing courts of justice into contempt. With as much truth he bad heard it said, that a conspiracy existed to bring all the ancient establishments of the country into disrespect. The way to inculcate respect for establishments was, to make them respectable; and, if suspicions were entertained about them (as was evidently the case here), the proper mode was to remove them, if ill-founded, by correcting the institution; and, if ill-founded, by examining and stating it to the public. But the worst step that could be pursued was, to shut their eyes and ears against complaints which were substantially brought forward. Under all the circumstances of the case, the motion had his warmest concurrence.
§ Sir John Nicholl
defended the conduct of the ecclesiastical court, in the case which gave rise to the motion of the noble lord. It was an ordinary one, and treated in the ordinary manner; a young girl had done an injury to a married woman, by imputing to her a want of chastity; she denied the charge, and was cited to appear before the proper tribunal; she refused to appear, and accordingly a compulsory process was instituted. This was the whole case, and such a one as might occur in, any ordinary case, when a person was summoned to appear before a magistrate for killing game unlawfully, when the same consequences would ensue, and might with equal justice appear a sufficient ground for inquiring into the conduct of alt the magistrates of the kingdom. The age of the woman whose case was made the subject of complaint was first adverted to, but it was well known that minors were amenable for offences. The noble lord had also complained, that no guardian had been appointed, but the appointment of one could have made no difference in the result. The second ground of complaint was, the poverty of the accused; but that could not be pleaded as a ground for committing offences, and she was entitled to sue in forma pauperis, and therefore that made no distinction. The infliction of penance had also been complained of; but that was shewn by his right hon. friend, not to be so formidable as had been represented, and consisted only in a simple retraction of the offensive words. With respect to the 314 payment of the costs, which amounted to 12l. 7s. 11d. they were occasioned by the accused party denying the fact, and obliging the accuser to summon witnesses to prove the allegations, and she consequently suffered by her obstinacy, as the whole expence in the inferior court, he believed, did not amount to more than 1l. 3s. 6d. nor was it desirable that there should be a total exemption from expence, which would operate as an incitement to dissention among the lower orders; and it was right that the expence should not fall on the injured party. He was as ready as any person, if a more efficient and satisfactory process could be substituted for excommunication, to consent to its adoption; but did it require the appointment 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 situation of the inferior ecclesiastical jurisdictions throughout the country, in order to find out that excommunication was a round-about mode of proceeding. He was ready to allow that a spiritual court was not the most favourable sound to the ear; but it was only fair to take into consideration, that hardly one case in a year, of a spiritual nature, occurred in these courts, which were interwoven in the judicature of the country. Wills and testamentary papers constituted a very great part of their whole occupation, and another great branch was matrimonial causes, questions respecting the validity of marriage contracts, for enforcing those contracts, relieving from cohabitation, separation on account of adultery, and so forth. Other descriptions of causes came before them, such as all those respecting tithes. They were almost always occupied with questions of civil right. It was no doubt true, the offensive name still continued, and the odium was much increased by the use of excommunication. This mode of excommunication he would acknowledge was objectionable, from its being both circuitous and expensive.—In a court of common law, or equity, when a verdict or sentence was obtained, execution was at once directed, either against the goods or person; but in the ecclesiastical courts all that could be done was to excommunicate, and this in itself was a mere brutum fulmen, and required to be followed up with the calling in the assistance of a civil court. If the legislature thought proper to entrust ecclesiastical courts with that power which was en- 315 trusted to every other court in the country, then this circuitous mode of proceeding would necessarily be at an end. When he saw that those courts were principally occupied with the decision of causes purely civil, that they were completely incorporated with the judicature of the country; when he considered that every other court had the power of enforcing obedience to its own decrees, and that from the constitution of ecclesiastical courts they were reduced to what he would call a profane application of excommunication, that they could not even pronounce an interlocutory sentence without having recourse to it, he certainly thought that the legislature could not be better employed than in providing a remedy for this inconvenience; and should the legislature so far forget its ancient prejudices, as, to consent to this remedy, he had no doubt that those who presided in the ecclesiastical courts would be extremely grateful for this interference. The number of inferior ecclesiastical jurisdictions was certainly very great, but if no particular charge could be brought forward against their administration, there really appeared no reason for going into any inquiry of the nature of the present. He had presided three years in a court to which appeals lay from all the inferior ecclesiastical jurisdictions of the country, which amounted in all to 19, and during the whole of that period there had not been more than 9 or 10 appeals. He thought therefore he was entitled to contend that no mal-administration existed to such an extent as to call for an inquiry of the nature of the present. The noble lord had been able to produce only 12 cases, from an examination into all the ecclesiastical jurisdictions in the west of England; and of these 12 cases, which were all that could be raked up in a period of 12 or 13 years, 6 were for defamation, and 2 were for tythes. The result of this diligent examination certainly would not lead him to the conclusion contended for by the noble lord. The remedy which that noble lord had proposed, he certainly could by no means give his consent to. It was neither more nor less than inviting all dissatisfied suitors, and all unfortunate suitors were dissatisfied throughout the country, to bring forward complaints to the Committee against the ecclesiastical courts; it was hunting for grounds of accusation against them. If the present mode of proceeding was incon- 316 venient, the remedy was perfectly obvious, without the appointment of such a Committee of Inquiry.
§ Mr. W. Smith
said, he had heard with great satisfaction, the statements so distinctly made by the two learned gentlemen that night. He confessed, that when he had heard the first part of the speech of the right hon. and learned gentleman (sir W. Scott) he was not prepared for the conclusion which followed it. Certainly, at least, one third part of that speech did tend to corroborate all the noble lord's conclusions, for it confirmed his statement, that there was something in those courts which stood in great need of reformation. If any of those learned gentlemen were willing to bring forward a remedy, he believed the noble lord would be perfectly willing that the reformation should be entrusted to them. But by whom would a bill be brought in If his hon. and learned friend beside him (sir S. Romilly) were to introduce such a bill, so great was his weight in the country, notwithstanding his want of experience in that particular department, that he had no doubt it would be received with that deference with which every thing from him would be received; but if the noble lord were to originate such a bill, he would be told by the opposite side of the House, that it would be better for him to let it alone. If they were to look to the right honourable and learned gentlemen who were so peculiarly qualified to carry through this reformation, he was afraid that they had already so much important business on their hands, that it would prevent them from coming forward in time with it. He remembered a case of peculiar hardship, which came to his knowledge two years ago. Two poor women, for a contempt in an Ecclesiastical Court, had been confined in Nottingham during 11 years. He had been there after, nine years imprisonment, and he found that they possessed a very good moral character, that they were enthusiasts, and in their principles nearly resembling Quakers, but differing from them in some peculiarities, they were not members of that sect. It happened that these women bore a dislike to the mode of solemnizing marriage prescribed by the Church of England. They were dragged before an Ecclessastical Court, at the instance of some cruel, malevolent, and bigotted individuals, for living in a state of fornication; and being cited by their maiden names, and refusing to answer to such names from a scruple of 317 conscience, they were involved in an imprisonment of 11 years, and were at last set at liberty merely because their persecutors were tired of harrassing them any longer. [Here it was stated by some member near the hon. gentleman, that the period of imprisonment had only been 7 years]. Not long ago it had been the practice of pressing a criminal who refused to plead, till he consented to plead. This blot existed till at last a judge had thought proper to bring about a reformation, and it was enacted, that a refusal to plead was an acknowledgment of guilt. What did he infer from this? That Ecclesiastical Courts ought to act in the very same manner, and proceed to inflict that punishment on offenders which the offence, deserved, without imprisoning for 7 years, in the manner which had been stated; for if such a punishment were directly; awarded, the whole country would cry out against its barbarity.—It had been objected, that the appointment of a Committee, would cast a slur on the courts; yet, was it not a standing order, that a grand committee of inquiry into courts of justice should sit every Saturday? Perhaps his noble friend would have no objection to this great committee, instead of the one he proposed. As to the Spiritual courts being principally concerned in cases of meum & tuum, would it not be better that these subjects should be confined to the common law courts, and that there should not be the option of a suit, which was less convenient, expensive and arbitrary. Would property or person be affected, or the constitution of the country-be injured, if the Spiritual jurisdiction in these matters were removed?—The hon. gentleman concluded with expressing his opinion, that the mode proposed by his noble friend was the best that could be adopted, that all others would fail, and that as they had never yet seen any attempts made by those who were best qualified to provide a proper remedy, so no attempts would in all probability be made in future by them, and he would therefore give his vote for the motion of the noble lord.
The Attorney General
said, it might be true that hardships existed, but had there been any mal-administration of justice, had inferior courts acted differently from what, must have been done by superior ones? Had the judges done more than the law absolutely required? An hon. gentleman of great acuteness had alluded to the 318 method now adopted by the courts of common-law, in lieu of the peine forte et dure, and had complained that the Ecclesiastical Courts had not followed that course. The law, courts did not make that alteration, they bad no authority to do it, till it was ordained by parliament; nor could the Spiritual courts admit such, a commutation, without legislative interference. The judges, who had merely done their duty, could not be objects of censure. The complaint was against the law itself; it was the evident impression of the House, that the law should be corrected; it was fit, then, to make such correction, but not to institute the stated inquiry. A challenge had been given to his right hon. friend, to bring in a, bill on this subject. He had no doubt that it would be accepted. It was expected of his right hon. friend by the House, because they felt that the task could not devolve upon anyone more capable. He did not say this because his right hon. friend sat on the same side of the House with himself, but because his high judicial character was acknowledged not only in England but throughout Europe.
§ Mr. W. Smith
said, he had not accused the Spiritual courts for their non-adoption of the practice of the common law courts, but merely suggested the propriety of such adoption.
§ Sir John Newport
said, that great as was the pressure complained of here, from the jurisdiction of the Ecclesiastical courts, it was nothing to what was felt in Ireland. It was a perpetual subject of complaint, that the poor peasant who was cited to appear, after leaving his employment to attend the court, found that it was not sitting, and was obliged to go and return frequently, from the irregularity, with which those courts were conducted, and was at length decreed for not appearing. He would add but one word more: it was in the recollection of the House, that not more than two sessions had elapsed since a noble lord, in that House, had arraigned the Catholics of Ireland for inflicting the sentence of excommunication, and denounced it as infamous and disgraceful to society, in the most extravagant terms; and yet it was stated this night as the avowed and sanctioned practice of the established church.
begged to be informed, if it was the intention of the right hon. 319 and learned gent, to bring in a bill, as recommended by the Attorney-General?
§ Sir W. Scott
replied, that if it was the sense of the House that such a measure was expedient, he would certainly comply. (Cheers from all sides.)
said, that with that understanding he should withdraw his motion, but he would make one observation: he understood that the right hon. and learned gent, had many years ago expressed himself hostile to the abuse; but up to the present period no measure had been proposed to remove it. He had extreme pleasure in withdrawing his motion.
The Chancellor of the Exchequer
wished merely to remove any doubt which might exist with regard to what had fallen from his right hon. and learned friend in the course of the debate. So far from his speech having stated any objection to inquiry, its whole object was to express his opinion, that the inquiry should be directed towards the law itself, and not the charges brought forward by the noble lord, which he thought not likely to be remedied by the appointment of a Committee, and he had heard him often say, that the only reason which deterred him from attempting to remove the process complained of was an apprehension of opposition and jealousy on the part of the common law courts, which certainly had formerly existed in a considerable degree; but now that the general feeling seemed in favour of such a measure, he had no doubt that his right hon. friend would undertake it with great pleasure.
§ The Speaker
proceeded to ask, whether it was the pleasure of the House that the motion should be withdrawn? when
observed, that the original ground of his motion was the case of the unfortunate woman, whose relief and release was sought by it; he would, therefore, wish to have something arranged on that subject.
§ After a short pause, the Speaker suggested to the noble lord to defer it to some other day. The motion was then withdrawn.