HC Deb 04 August 1840 vol 55 cc1255-8

Lord J. Russell moved the third reading of the Ecclesiastical Courts Bill (No. 1).

Mr. T. Duncombe

would take that opportunity to thank her Majesty's Government for bringing in the present bill, but he must at the same time say, that he was afraid that the bill would not effect the benevolent intention of its authors, namely, the release of John Thorogood. The bill left that dependent upon the consent of his prosecutors, and, judging from all that had taken place up to the proceedings at the last meeting at Chelmsford, he feared that this bill would avail nothing to effect the object which the House had in view.

Dr. Lushington

thought it necessary, in vindication of himself and the proceedings that had taken place in the court over which he presided, that the House should be apprised of the course that had been taken there. Mr. Thorogood having questioned the validity of a rate, and having been summoned in the Ecclesiastical Court, thought fit not to appear. Now, under such circumstances, what was the judge bound to do in virtue of his oath? He was bound to administer the law as it stood, without the slightest reference to any other consideration. He was bound to pronounce the individual in contempt. He had no choice; and if he had refused to do so, he would have subjected himself to proceedings in other courts, for the purpose of making him do his duty, and also the censure of the public. A doubt had arisen whether, with the consent of the parties, he could release the individual. He asked those who said he had the power, to look to the statute of the 53rd George 3rd, c. 127, in which they would see that when a party was in custody for contempt, he had no power to discharge that individual, unless he had purged his contempt. But it was said another course might have been adopted, similar to that which had been pursued in the case of Mr. Baines of Leicester, which was much more merciful. Now, with respect to the mercy of that course, he would only say, that Mr. Baines had been sued for 2l. 12s. 6d., and, after various proceedings, the Lord Chancellor had directed a new writ de contumace capiendo to issue for the 2l. 12s. 6d., and 125l. costs, those costs being only for one side. He believed there was no well-authenticated instance of a party being released from contempt without purging his contempt.

Mr. Hawes

said, the House ought to pronounce a strong and decided opinion upon the course that might be taken by the churchwardens of Chelmsford, as well as with regard to the proceedings of suitors in the ecclesiastical courts. Such a state of things as that mentioned by his right hon. Friend (Dr. Lushington), namely, 125l. costs upon a debt of 2l. 12s. 6d., was a reproach to the Legislature of any country. With regard to the bill itself, it was clear that some alteration must be made. By the bill, as it stood, if the party suing refused his consent to the discharge of the prisoner, the whole of their benevolent course of legislation would be so much waste paper. He hoped, therefore, the House would leave out the last proviso of the first clause, and then the judge of the Ecclesiastical Court, if he thought that the vengeance of the law was, sa- tisfied, might, on his own mere motion, discharge the prisoner. He begged to ask, supposing the proviso to be struck out, whether Mr. Thorogood could be discharged without payment of cost's, al otherwise the intention of the Legislature would not be effected?

Dr. Lushington

said, that if the proviso j were struck out, undoubtedly the judge of the Ecclesiastical Court would have absolute power to release prisoners according to his judgment and discretion. This would be a very great concession of power; and although he thought such a power might safely be conceded, in cases where the sum in question was of small amount, yet if they gave such a power in all cases, in testamentary and other cases, no one could foresee the effect. Justice might be wholly evaded in cases of the utmost importance, if they transferred to one court a power wholly incompatible with the powers conferred upon the highest courts in the kingdom.

Mr. Briscoe

—although he could not consent to the expunction of the proviso, would be very glad to agree to any clause which should provide for the immediate release of Mr. Thorogood, upon the simple payment of the rate with costs. He hoped soon to see a change in the system of church rates altogether.

Mr. Ewart

begged to ask his right hon. and learned Friend, whether he (Dr. Lushington) could not frame a clause, which, without giving undue power to the court, would effect the object the House had in view?

Dr. Lushington

said, that he did not like to take upon himself to propose an alteration of that nature, without communicating with the Government. It might be done by adding these words to the bill, "in cases where the amount sued for, together with costs, has been paid into court." That would give power to release in the present instance, and would still preserve the law as it stood. The only difference would be, to give the court the power of release without the consent of the churchwardens.

Lord G. Somerset

suggested, that it would be expedient to postpone the question till to-morrow. He thought that in the case of Mr. Thorogood, the amount of punishment had gone as far as the fault deserved, and he therefore hoped some means might be adopted by which he could be turned out of prison.

Mr. F. Maule

—he would take the third reading of the bill then, and the further proceedings might be adjourned till to-morrow.

Bill read a third time.