ECCLESIASTICAL COURTS—JOHN THOROGOOD. (Hansard, 1 August 1840)

§ Dr. Nicholl
, before the House went into Committee felt bound to call its attention to the present situation of the individual who had been the cause of the introduction of the bill. A rate had been made by the vestry—it had been paid by the great mass of the inhabitants of the town in which Mr. Thorogood resided, in which there were a great number of Dissenters; none of whom, he believed, with the exception of Mr. Thorogood, had refused the payment of the rate. There was no question as to the validity of the rate, but Mr. Thorogood chose to refuse payment, and for so doing he was summoned before the magistrates, who had the power to summon any party for the non-payment of church-rates, provided the validity of the rate had not been disputed in any ecclesiastical court. Now, what was the conduct of Mr. Thorogood before the magistrates? He did not set up any conscientious ground or scruple to the payment of the rate, but he appeared before the magistrate with a solemn written protest, drawn out in a legal form, giving the magistrates notice that he intended to dispute the legality of the rate. 1190 Such being the case, the magistrates had no further jurisdiction in the matter, Mr. Thorogood having disputed the validity of the rate his goods could not be distrained, and the only remedy was against his person. Mr. Thorogood having instituted proceedings in the Ecclesiastical Court he was summoned there, and when there he did not dispute the rate on the ground of its being invalid. He refused absolutely to appear, and then he was necessarily declared in contempt; the significavit was returned to the Court of Chancery, and he was taken into custody. He might have appealed to the Chancellor, or to the Court of Queen's Bench, had there been anything irregular, but he had done neither. He was then confessedly in legal custody. He was brought there, perhaps, by bad advice, or perhaps from conscientious feelings, but he was in difficulty. He had means to pay all costs, but both he and his friends refused to pay the legal fees, and he (Dr. Nicholl) was not prepared to allow him to ride over the law by discharging him without his doing so. It was therefore that he preferred his own bill to that introduced by the noble Lord, and he therefore begged to move, as an amendment to the noble Lord's motion, that the House resolve itself into committee upon the Ecclesiastical Courts (No. 2) Bill.

§ Lord John Russell
had no wish to complain of the conduct of the hon. and learned Gentleman for taking his own view of the question. He thought the learned Gentleman had acted perfectly fair in bringing before the House his view of the subject, and stating the grounds on which he preferred his own bill to the present. With regard to the question itself, however, he could not say the argument of the hon. and learned Gentleman had convinced him that the hon. and learned Gentleman's bill was the preferable one in this case. Without going into the state of the law, or the original facts of the case, he wished to state how the question at present stood as respected that House. The House in general had been of opinion, that after John Thorogood had been upwards of eighteen months in confinement, being committed for contempt, it was the better way, not only with regard to humanity, but with a view to the general question, that he should be discharged from prison. It was not an opinion at all involving any 1191 question as to the propriety of the conduct of John Thorogood, still less of the view which that individual had taken of church rates, of the law respecting them, or his duty towards that law. Such being the opinion of the House, the question was, in what manner this discharge should be effected. He certainly was of opinion with the Attorney-general, that that discharge might have taken place under the present state of the law with the consent of the prosecutor, without introducing any bill into Parliament. The hon. and learned Gentleman was not in the House at the time he had stated that opinion, which had been concurred in by another hon. Member, but the hon. and learned Gentleman was of a different opinion. The hon. and learned Member for the Tower Hamlets (Dr. Lushington) concurred with the hon. and learned Gentleman, and he therefore apprehended, if they separated without passing a bill on the subject, that when the learned judge came to decide on the question, he would decide that he had not power to act in the manner in which it was supposed by the House he might act under the present circumstances. If they wished that John Thorogood should be discharged, a bill must be introduced for that purpose. Then they came to the manner in which that bill should be framed. The hon. and learned Gentleman proposed a bill which allowed his discharge, but at the same time provided that his goods, and even lands, if necessary, might be taken to find payment of the original debt, and of the costs of the suit; and, in fact, the whole arrangement amounted to this, that if that were not done, Mr. Thorogood might be recommitted under the bill. He would not argue whether the bill were right as a general remedy on the subject, and what he had stated at the commencement of the session did not differ very widely from the view of the hon. and learned Gentleman. But this was raising an important question in which at that period of the session, with the opinions which had been expressed on the subject of church-rates, there was no reason to expect the House would concur. It certainly was his opinion, when he, on a former occasion addressed the House on this subject, that a remedy against the goods might be a sufficient remedy for this question of church-rates; but it was undoubtedly denied that such a remedy 1192 would be sufficient, as it was obvious on the face of it that it was a remedy that would not answer the purpose of those who thought they ought not to pay church rates, and would not, more than in the case of the Quakers, relieve such persons further than from being obliged personally to consent to their payment. That state of the law would, he thought, be more simple than the law at present, but that being so much a mattet of dispute, he certainly wished some way should be devised for procuring the discharge of this individual without raising the question on which, in the present state of the session, he was hardly prepared to enter, even were he prepared to go as far as the hon. and learned Gentleman. He thought raising a question of this kind at such a time, and deciding, in fact, on the whole question of church-rates was a more important matter of legislation than they were then in a situation to undertake. With regard to church-rates under 10l., it was proposed by the hon. and learned Gentleman's bill that the person who refused to pay should go before a magistrate, and if he allowed the validity of the rate it should be levied against his goods; but if he appealed against it, he should go before the Ecclesiastical Court, and if they decided against him the rate should be levied, as in the first instance. Therefore, in either case the person rated was liable to pay, and if so, the bill decided the whole question of church-rates. Now, his (Lord John Russell's) bill was of a much more simple nature, and without entering into the technical objections which might be made to it, he thought it the one which it was most advisable, on general grounds the House should adopt. It provided that, after a person who had been committed for contempt had been in prison a considerable time, if it should appear to the judge there were sufficient grounds for his discharge, and the other party should consent to it, he should be discharged at once. The hon. Gentleman said this did not satisfy the justice of the case, and that a person who had originally refused to pay church-rates, if discharged without such payment, should either discharge the rate, or be liable to be again taken up and put in prison. His answer to that was, that in a case of that sort he thought there were not persons who would resist, or, if they did, he thought it would be considered better not to run the process 1193 after them so far; for the vindication of the law seemed to him to be oftimes better maintained by taking no further notice of such offenders. This conduct was never followed by Sir Robert Walpole, who, when a member of that House had made an almost treasonable speech, said, "I know that honourable gentleman wishes to be committed to the Tower, but I shall do no such thing." Prosecutions of this kind often made the whole importance of the person thus prosecuted, and, seeing that this matter had lasted long enough, and being, as he was, for the continuance of payments which were necessary for the maintenance of the law, he said in a case of this kind they were much more likely to maintain the law by taking the speediest mode of discharging this individual than continuing to enforce payment. He therefore thought his bill preferable to that of the hon. and learned Gentleman, the remedy proposed in it being the speediest.

The Attorney General
thought there could be no objection to give the Ecclesiastical Courts the power to discharge a contumacious person from custody, with the consent of the prosecutor. His own objection to the bill was, that it was unnecessary; for he was of opinion that the ecclesiastical courts had the power already, in common with the courts of law, of discharging a person who was in custody for contempt. However, as the hon. and learned Gentleman opposite, and the courts themselves, were of opinion that they had not that power, he was desirous that the bill of his noble Friend should pass. According to the analogies of the law, Thorogood had been long enough in prison to satisfy the debt. If he had been in prison only twelve months for a debt of 20l., the court of law, from which the process had issued, would discharge him on a simple motion in court to that effect. He therefore thought that there could be nothing to apprehend from now discharging John Thorogood, leaving all her Majesty's subjects still liable to the tax which he so much deprecated.