ECCLESIASTICAL COURTS. (Hansard, 5 August 1840)

§ Mr. T. Duncombe
had an amendment to propose, but first he would explain to the noble Lord how this matter stood. Yesterday he stated to the House that in consequence of the vindictive conduct of certain parties at Chelmsford, as shown at a meeting of the churchwardens and others, with the rector in the chair, it was clear that the House could not trust those parties with any discretionary power as regarded the bill before the House. It appeared that at a meeting on Monday last, certain resolutions were passed by the parishioners of Chelmsford, the last of which was as follows:— That as regards the proceedings against John Thorogood, which have been hitherto carried on by the churchwardens of Chelmsford, on their own judgment and responsibility, the thanks of this meeting are eminently due to them for the judicious, straightforward, 1282 and uncompromising course which they have hitherto pursued; and that, in the opinion of this meeting, they will best serve the interests of the Established Church generally, as they will assuredly of this parish in particular, by persevering in the same course of firmness and consistency, until they have recovered the rate due from John Thorogood, and received the costs occasioned by his obstinacy, trickery, and self-will. That charitable resolution was put from the chair, and adopted by a majority of the meeting assembled within the walls of that sacred edifice, which John Thorogood not using, did not think proper to contribute to the repairs of. Some parties not satisfied with the show of hands, demanded a poll, the result of which for the first day was, that 168 voted for keeping Mr. Thorogood in prison, and 130 for his discharge. He had little doubt but that the friends of the churchwardens and of persecution would succeed. After coming to such a resolution, and after seeing that resolution confirmed by the petition presented to the House, praying the House not to give its consent to any bill for the release of Mr. Thorogood, although he had suffered nineteen months' imprisonment, until he should have paid the rate and costs, it was quite clear that these parties would not carry out the humane object which the noble Lord had in view in introducing this bill, a bill, the principle of which had been sanctioned by the House without a division, and yet these men set themselves in opposition to the express wish of the House, and, if possible, to an act of Parliament. He therefore said, they ought not to be trusted with any discretionary power, and he wished the House to adopt such an amendment as would take that discretionary power away from them, and leave a discretion with the judge of the Ecclesiastical Court to say whether the prisoner should be released or not. It was stated yesterday, by his right hon. and learned Friend (Dr. Lushington) that this would be giving too great power to any judge, to release prisoners from contempt. This was a difficulty easily obviated by confining the operation of the bill to the cases of persons committed for the non-payment of church-rates; and for that purpose he would move to insert in the second line of the bill the words "in cases of subtraction of church-rates." This would only give power to the judge to discharge a prisoner who was imprisoned 1283 for a small sum like this, of 5s. 6d. He proposed, moreover, to leave out the proviso by which no order was to be made by the judge, without the consent of the party or parties in the suit. He wished to leave that proviso out, because it was quite clear that this power would be much better vested in the court, than in persons actuated by such vindictive and intolerant motives as the inhabitants of Chelmsford. It was the judge of the Ecclesiastical Court against whom the offence had been committed. The churchwardens of Chelmsford had, in point of fact, nothing to do with the contempt that had been committed. It rested between Mr. Thorogood and the court, and the judge of that court was the person who was best able to say whether Mr. Thorogood had been sufficiently punished for the offence he had committed. If this had been a case of debt for 5s. 6d., the individual would not have been incarcerated more than seven days, but for 5s. 6d. due to the church, it appeared that a man was to be kept in prison for life. The church was the proper tribunal to say whether this offence had been sufficiently punished or not, and he trusted, considering that Mr. Thorogood had now been imprisoned for nineteen months, that the Church would consider that he had been sufficiently punished. The warrant upon which Mr. Thorogood was committed, merely stated, that he was guilty of contumacy, in refusing to appear to the citation served upon him. The prisoner's making satisfaction for the contempt of court had nothing to do with the payment of costs. Costs were not mentioned in the warrant. He would not, therefore, give those inhabitants of Chelmsford, who had shown so vindictive and malevolent a feeling, a voice upon the subject. He would move, in the first place, to insert words to confine the operation of the bill to cases of the subtraction of church-rates, and subsequently he would move, that the proviso to which he had referred be expunged.

§ Lord John Russell
said, he must consider the proposition of the hon. Gentleman with reference to what he proposed subsequently to introduce into the bill, and to decide whether or not the whole proposition ought to be adopted. The hon. Gentleman proposed that the bill, instead Of being general, should have reference solely to cases of contempt for non-payment of church-rates. This pro- 1284 bably would do away with the objection which he understood had been taken yesterday, and which was of a most serious kind, viz. with regard to any party refusing to appear upon questions of the greatest importance, affecting the various relations of life with which the court would have to deal, the danger of giving to the judge an absolute power of freeing such party at once from the consequences of his refusal. Looking, however, at the amendment with regard to church-rates solely, he must say he did not think it expedient to adopt it. The amendment proposed would give to the judge of the Ecclesiastical Court an absolute dominion over all cases of this kind. The judge would have it in his power to refuse to discharge a prisoner, or after a party had been in prison a single day for contempt, he would have it in his power at once, without the consent of the party suing, to discharge the prisoner. Suppose the judge did not think it consistent with his duty so to discharge a prisoner, then they would be placing upon the judge the whole odium of the refusal; for if they gave the judge an absolute power, it would remain for him to say whether or not the party should be discharged. They had had the case of Mr. Thorogood, and as matters stood then, he thought that case would not find a great many imitators; but supposing any party should so refuse church-rates, and when summoned before the magistrates should contest the validity of the rate, and when summoned to appear before the Ecclesiastical Court, should refuse to appear, and should consequently be committed for contempt, such a person would be imprisoned solely at the discretion of the judge. Now there might be a great many parties who would imitate such conduct, and would bring such a pressure to bear upon the judge, as to be enabled entirely to defeat the law by means of this amendment of the hon. Gentleman. Parties would not pay church-rates, but would contest the validity of the rate, would then refuse to appear, and the judge would be ultimately compelled, from the great number of persons imprisoned, to discharge them. He submitted, therefore, that giving this extreme and absolute power to a judge, without control,, to discharge a party who refused to pay or appear, and that after even one single day's imprisonment, would be a most inexpedient change of the law. The amend- 1285 ment would either enable a judge to do that which it was not fit he should do, or feeling that it was not fit, it would be placing upon him a responsibility that ought not to be imposed upon him—the responsibility of entirely dispensing with the enactments of the law, and obedience to the measures taken for the enforcement of the law.

§ Mr. Bramston
said, that the people of Chelmsford, and the churchwardens, had great reason to complain of the feelings of vindictiveness and severity that had been attributed to them. The churchwardens were bound to enforce the rate, in vindication of the law of the country. In doing this they had been put to heavy expenses, and now all they required was, that the rate, together with the costs to which they had been put, should be paid. He believed that the churchwardens and inhabitants of Chelmsford would be very happy if Mr. Thorogood were released from prison, provided the law were complied with.

§ Mr. Easthope
said, that the hon. Gentleman who had just sat down had complained that his hon. Friend had attributed to those gentlemen of Chelmsford, whom the hon. Gentleman defended, great severity in the course they had pursued with reference to Mr. John Thorogood. Yes, the hon. Gentleman said, and by his cheer confirmed the statement, that these Chelmsford gentlemen would be most happy if Mr. Thorogood were to be released to-morrow. But their happiness did not go to the extent of remitting the 5s. 6d. and the costs that had been incurred. Their happiness fell quite short of that. They would be most happy if Mr. Thorogood paid the rate and the costs—if in fact he gave them every thing they sought for. They knew that Mr. Thorogood entertained conscientious scruples against paying this rate; or whether they knew this or not, they knew at least, that he was conscientiously determined not to pay this rate, and that he was conscientiously determined not to pay the costs, and therefore their happiness would never be completed, because, sooner than pay this rate and costs, Mr. Thorogood would die in Chelsmford Gaol; and then, forsooth, these gentlemen expected to be exempted from having anything like severity attributed to them. He did think, that the hon. Member would find very few people, however much they might differ from Mr. Thorogood as to the course he 1286 had pursued, that would give to the authorities of Chelmsford credit for an extreme anxiety to show mercy, and for an extreme propriety in constituting that which would give them happiness. Never before had an opinion so unanimously prevailed as that Mr. Thorogood had suffered long enough, that the 5s. 6d. rate had been amply paid for by his imprisonment; that the costs, even if they should amount to 100l. had been amply paid for by the length of that imprisonment; and then for those persons to talk of their happiness if he should be released to-morrow, and of their not being influenced by any feeling of severity, and of their praying to be exempted from all charge of harshness in a case like this, when they had done everything which the most severe interpretation of the law enabled them to do, seemed to him rather too much for the public, and he hoped also for that House.

§ Dr. Nicholl
said, that it was absurd to talk of conscience in a ease of this sort. If Mr. Thorogood had been actuated by conscientious motives, he had nothing to do but go before the magistrates, and, like the Quakers, allow his goods to be distrained. He did no such thing. He went before the magistrates and gave notice, that he would dispute the validity of the rate, and the magistrates, supposing that he did bonâ fide intend to dispute the validity of the rate, discharged him. It was nothing short of a fraud on the part of this person to deprive the parish of a summary remedy for the recovery of the rate, and to put them to a more expensive process. The churchwardens had been harassed for a great length of time, and now all that they wanted was, that the rate and their costs should be paid. He could not consent to the amendment.

§ Mr. Duncombe
would not press the first portion of his amendment, but would persevere in the amendment for striking out the proviso.

§ Lord John Russell
said, that as he admitted, that there would probably be some difficulty in effecting the release of John Thorogood under this bill, and as he had stated his reasons for not agreeing to the amendment of the hon. Member for Finsbury, he should propose the insertion of words calculated to meet the case. As it might require some consideration, however, he should first move, that they be printed. The words were:— Provided always, that in cases of sub- 1287 traction of Church rate in amount not exceeding 5l., where the party in contempt has suffered imprisonment for twelve months and upwards, the consent of the other parties shall not be considered necessary to enable the judge to discharge such party. The object was, to give a prisoner the benefit of the exercise of the powers of a judge after twelve months' imprisonment, and if it met the views of the House he would move it at once.