ECCLESIASTICAL COURTS. (Hansard, 7 August 1840)

§ The Earl of Devon
proposed the addition of a clause to the bill, to the effect that John Thorogood should not be released until the rate and costs were paid either by himself, or some other person or persons.

§ The Lord Chancellor
said, that the insertion of such a clause would frustrate the purpose of the bill. Besides no act of Parliament was necessary to make it imperative on persons in the situation of John Thorogood to pay the debt and costs of the suit, before they were released from prison.

§ The Duke of Wellington
thought the case was a very simple one, and that there could be no doubt as to the course which should be taken. Here was a man who had been sued for a sum of money, which it was understood, was lawfully due by 1387 him. The law rendered him liable to pay that sum of money, and the law supported the proceedings against him for the recovery of it. This person could have easily avoided these proceedings by simply paying the sum of 5s. 6d. which was demanded of him, or he could have gone into court and have had the question fairly tried whether he were bound to pay it or not, according to the laws of the country in which he resided, for, of course, he must be bound by the laws of his country as well as all other British subjects. But he did not choose to do either. He said," I will not pay that money," and in consequence of his own conduct a large sum of money was incurred in the way of costs. Those costs were not matters of amusement, they were realities; they were sums of money paid for the labour of certain individuals for certain services performed in the execution of their duties under the legal authority of the ecclesiastical courts, and in this suit. Now, those costs must be paid. Were they to let the man off from paying the 5s. 6d. for the rate, that remission would not got rid of his liability for the costs; they must be paid either by himself or his friends, or else they must be paid by the other party, by the lawful suitors, by the lawful plaintiffs, who had a right to recover the money. They were the persons who would have to pay the costs unless their Lordships consented to insert the clause proposed by his noble Friend. Somebody must pay the costs after all. But it was said, that the defendant was not to pay the costs, and that he was to be let out of prison. Well, they might let him out if they pleased; but surely, they would not call upon the plaintiffs to pay the costs incurred by his conduct. That was not justice. That was not fair between man and man. Not a soul in the House could be of that opinion; it was not consistent either with law or justice to throw these expenses upon those upon whom the law of the country had laid the necessity of incurring them. Not they, but he who by his own conduct had rendered the proceedings imperative, ought to be made to pay the costs. He, therefore, entreated their Lordships to adopt the proposition of his noble Friend.

§ Lord Eldon
entirely concurred in the observations of the noble Duke. If the question was, as to the release of an insolvent after long imprisonment, he might 1388 perhaps take another view of the matter. But this person was not insolvent; it was very well known, that those who entered into his feelings, and supported him in the church-rate contest, bad got up large subscriptions on his behalf. Therefore, he could not expect to be released from prison on the ground of his inability to pay. It was clear, then, that his conduct was contumacious, and if he chose to carry on his contumacy to annoy the other parties concerned, surely he ought to be prepared to suffer all the effects of his own conduct.

§ Lord Wharncliffe
inquired who would pay the costs if the defendant did not? If he were released from prison without paying them, no one who refused to pay church rates hereafter would be proceeded against, because the churchwardens would naturally say, "It would be foolish for us to go to so much expense for 5s. 6d., for the person may go to gaol, and come out in six months saddling us with the costs. If the amendment were not adopted, their Lordships would virtually repeal all church rates by passing this bill.

§ The Lord Chancellor
had given no opinion upon the question as to whether it would be unjust to make the plaintiffs or the defendant pay the costs. He might however, freely declare, that it would be quite unjust to make the plaintiffs pay them. But the fact was, that an experiment had been tried with this man for upwards of twelvemonths, without producing the effect desired—namely, the payment of either rate or costs. The defendant had preferred paying in person, and still seemed disposed to do so. The noble Lord proceeded upon the supposition that somebody else would pay these expenses. But suppose nobody did so, would the plaintiffs be in a better condition? By still keeping the defendant in gaol they would be giving him the character of a martyr, and enlisting popular sympathy in his favour and against themselves. All that might be avoided by agreeing to the bill as it stood. If the question were which ought to pay, the defendant or the plaintiff, he should not consent to let the defendant out unless he paid. The noble Lord on his left (Lord Wharncliffe) had suggested what might be the effect of the bill in other cases. In answer to that he would observe, that the cases were very rare in which men would rather go to prison for 1389 twelve months than pay 5s. 6d. or other smaller sums demanded as church rates.