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496

Miscellanea. - Editor's Letter Box.

MISCELLANEA.

Saxons converted their churches, as the Britons ACTION PRO RATIONABILI PARTE. before had converted their temples, into sancIn the reign of Edward 3, (as appears by

tuaries, whither homicides might flee to protect 3 Reeves' Hist. p. 70,) notwithstanding the

themselves from the hasty resentment of the decisions of the Courts in the foriker reign, in

injured party. They might also seek refuge favour of a man's power of bequeathing his

with an alderman, an abbot, or a thane, for personal effects away from his wife and chil

Cand chil three days; and with a bishop for nine days. dren, actions of detinue pro rutionabili parte

| A penalty was inflicted on the violation of were frequently brought in this reign. But the

sanctuary. By a law of Alfred, no one was to Court confirmed the opinion then advanced.

take revenge until he had demanded compensaIn one case an action was brought by the chil

tion, and it had been refused. If the offender dren to have a reasonable part of their father's

fled to his own house, the injured party might goods, when Thorpe, one of the justices, said. I besiege him there for seven days; and, if need. How can we give judgment, when you have

|ful, inight have the assistance of the magistrate brought an action that is contrary to law?' |

au to prevent his escape. If, at the expiration of and Mowbray, another justice, said, the Lords

da that time, the aggressor were willing to surin parliament would never grant that this

hid render himself and his arms, his adversary action should be maintainable by any common

might detain him for thirty days, but was aftercustom of the realm.' From this .it is clear

wards obliged to restore him safe to his friends, that, owing to the particular custom of certain

and be contented with the compensation. This places, by which a man's power of bequeathing

privilege of sanctuary extended also to thieves, his goods was restricted, and also owing to the

who in such cases inight make restitution of very prevalent practice of leaving the rationa- |

the plunder ; but if the thief repeated the ofbiles partes to the wife and children, though /fence, he was then obliged to leave the church, not required by any positive law to that effect, I

and provinciam forisjurare, to forswear the much uncertainty prevailed on this subject in

county, that is, swear that he would not return the minds of people, although the Courts had

to it; which, when applied to the kingdom, was uniformly held but one doctrine.

afterwards called abjuring the realm,

n

STRIKING IN COURTS OP LAW.

THE EDITOR'S LETTER BOX. At this time (Edw. 3), and probably since | the Conquest, it had become the law, that if , An index, Fitle-page, and con

An Index, Title-page, and Contents to Vol. any one drew a weapon upon any judge or Vis

or / VI., will be given with our next number, withjustice in Westminster Hall, or in any of the

of the out any additional charge. King's Courts, he was to lose his right hand,

The Third Part of the Commentaries on the to be imprisoned perpetually, and forfeit all his

Nero Statutes etfecting Alterations in the Law, goods and chattels, and, as it should seem, his lands too in this reign; but Lord Coke sup

tain the Chancery Regulation Act, and all the poses the forfeiture of lands was only for life,

remaining Acts coming within its object. but it is most probable that this depended on

The Fourth Part of the Analytical Digest of the nature of the offence, whether aggravated

all the Cases reported since November, 1832, or otherwise.

which will complete the Third Volume, will be The striking a juror. for giving a verdict published on the third Saturday in November. against a man in Westminster Hall, was pun

The Papers on “ Municipal Corporations ;" ished with the loss of lands and goods, besides

on the Statutes of Limitation as to Rent," the amputation of the right hand. Besides,

(from two Correspondents), and on the “ Denot only those who were guilty of such an act

fects of the Uniformity of Process Act,” shall of violence, but also those who disturbed such be immediately considered. Courts by threatening or reproachful words to

The Article on Friendly Societies is apany judge sitting in them, were guilty of a

proved, and will appear on Saturday next. high misprision or contempt. In the time of

The Queries and Answers of A. H. D.; Edward i, one William Bruce, upon hearing

J. N.; M.; C. S. B.; B.; J. A.; T.; a Court judgment given against him in the Exchequer,

Holder; J. S.; T. T. P.; and W.D., have been said to the chief baron, “Roger, Roger, thou

received. hast had thy will of me, which of a long time

| The Seal Paper in Chancery was given in thou hast sought, and I will remember thee,'

the Number for Sept. 14, p. 381. was, for these words, imprisoned during the

1 during the E. S. points out an error of the press in p. King's pleasure, and ordered to walk from

ordered to walk from 49, of the Second Part of our Cominentaries, the King's Bench to the Exchequer. bare-first column, line 17 from bottom, for “deheaded and ungirt, and to ask forgiveness. &c. scendant of the father,” read “ father.” This is a part of the common law which, as

The paper on the Law of Arrest we hope to respects the offence, has remained unaltered / find room for soon. to the present day, and in regard to the punish

The suggestion of T. T. P., that we should ment, is no otherwise altered than as the king, I p.

1 publish the Second Report of the Real Property by his prerogative of mercy, may think fit.

Cominissioners, and thus complete the series,

shall be considered. SANCTUARY.

We will thank E. M. for another copy of his

Answer to a Quære. We have no intention to After the introduction of Christianity, the dispute the authority of l'earne,

The Legal Observer.

Vol. VI.

SUPPLEMENT FOR OCTOBER, No.CLXX.

1833.

-“ Quod magis ad nos
Pertinet, et nescire malum cst, agitamus."

HORAT.

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ECCLESIASTICAL AND ADMIRALTY | tient investigation of the present state and past COURTS.

history of the Spiritual Courts. They have contented themselves with drawing the outlines

of the system which it appears to them expeREPORT FROM THE SELECT COMMITTEE.

dient that the Legislature, under all the air

cumstances of the case, should adopt. The Select Committee appointed to inquire Your committee recommend, in the first into the office and duties, the appointment, sa-l place, that all the Courts in England and Wales lary, and emoluments of the Judges of the exercising ecclesiastical jurisdiction, or the Prerogative Court, and the High Court of Ad- power of granting probates and administra. miralty, of the Dean of the Arches, and of the tions, be abolished, except the Arches and Judge of the Consistory Court of London, and Prerogative Court of Canterbury, and that those to whom the reports of the Ecclesiastical Com two Courts be united. Upon this point they mission, the Common Law Commissioners, express themselves with the less hesitation, and the Irish Admiralty Courts were referred, I as both the commissions are agreed on the and who were empowered to report the mi-manifold advantages of such a consolidation. nutes of evidence taken before them, have con- | It is true that the ecclesiastical commis sidered the matters referred to them, and have do not expressly advise the abolition of the agreed upon the following report.

Provincial Court of York, although they appear In order to arrive at any satisfactory con.) to incline to that opinion ; but from the eviclusion as to what ought to be the future con-dence your committee have received, as well as stitution of these tribunals, your committee the consideration which they have given to the have found it necessary to enter upon an ex- subject, they entertain no doubt of the expetensive field of inquiry, to ascertain what diency of including the province of York within will be the probable amount and nature of the the general rule. business which will hereafter be brought before Your committee further recommend, that them. They have more especially considered | the one Court sitting in London shall be the it to be their duty to do so, as they found in only Court for the probate of wills and the the reports of the ecclesiastical and real pro- granting of administrations, and shall exercise perty commissioners, which were referred jurisdiction over the several causes and matters to them, conflicting opinions with regard to recommended by the report of the ecclesiastithe course which it would be for the public in cal commissionery, subject to such modificaterest that the Legislature should pursue, while tions with respect to wills of real estate as may both agreed in advising the most important al- be deemed advisable. With reference more terations in the existing system.

especially to the trial by jury of the validity of Your committee have, therefore, both ma- wills disposing of real property, your committurely considered these reports, and have ex tee would particularly direct the attention of amined witnesses of the highest authority in the House to the following passage in Lord the various branches of the law of this country, Chief Justice Tindal's evidence, from which it to whose testimony they heg to call the atten appears, that though he and the late Lord Tention of the house.

terden ultimately acquiesced in the recommenIn submitting the following recommenda dation of the ecclesiastical commissioners as it tions as the result of their inquiries, your com at present stands, they were originally of a difmittee beg to say, that they have not attempted to ferent opinion :-" The part of the report enter into all the various details connected with about which there was the greatest doubt the main subject, and on which ample informa was that which related to the trial of the tion will be found in thereports of the ecclesiasti-issues upon wills of realty by the Ecclesiastical cal and real property commissioners; the former Court. Both Lord Tenterden and myself were of which, especially, undertook a long and pa- ) desirous that either party might have the right NO. CLXX.

2 K

498

The Ecclesiastical and Admiralty Courts.

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to take it to the assizes, or to a common law | distant parts of the world, where questions of Court; but we found the commissioners in bottomry and other matters within the jurisgeneral thought it sufficient if the Judge of the diction of that Court are likely to take their Court directed it to be sent there, or both origin. That even when the public business parties concurred in that wish, and we there was much less, and while the Court at York fore acquiesced in the resolution.” p. 133. No. and all the diocesan and inferior jurisdictions 1,409.

existed, the Prerogative, Admiralty, and ConYour committee recommend that the juris- sistory Courts have never at any time been addiction of the High Court of Admiralty be enministered by one Judge; and although since larged, so as to enable the said Court to take the year 1700 two instances at distant intervals cognizance of seamen's wages under special have occurred, in which for a short period the contracts, and of title of vessels arising inci. Prerogative and Admiralty Courts have been dentally in cases of possession, and also of the held by the same person, Sir Charles Hedges, demands of nautical men and of mortgagees from 1710 to 1714, and by Sir George Hay when the vessel has been arrested, or the pro- from 1773 to 1778, yet they were again sepaceeds are in the registry of that Court, and it rated upon the first vacancy that occurred; may also be expedient to consider whether and the conviction of the inconvenience of this great advantages would not result to the com-junction was in 1798 a principal ground of mercial interests of the country if the said raising the permanent salary of the Admiralty Court were permitted to exercise concurrent Judge. jurisdiction with other Courts, in questions of Your committee also think it right to call the title to ships generally, and of freight, and attention of the House to the following conpossibly of some other mercantile matters, with siderations.-" That the appointment of a sea power of einpannelling a jury of merchants cond Judge will not entail the necessity of any if the Judge think fit, or either of the parties increased establishment of officers, nor any adrequire it.

ditional fees or costs to suitors; that the learned Your committee would further recommend, person who holds ad interim the united offices that regulations be made for the attendance, if of Judge of the Prerogative and Admiralty required, of one barrister on each side in the Courts has expressed his decided opinion of Ecclesiastical and Admiralty Courts, whenever the advantage and necessity of two Judges an issue is tried, and on motions for new trials. (104-12); and it is understood that under this

Your committee have particularly directed conviction he will not permanently undertake their attention to the question of the number the united duties of the sole Judge of the civil of Judges requisite to discharge the duties of law courts; that the recommendation of the the Courts, as they would be constituted in ecclesiastical commissioners for the transfer of case their previous recommendations shall be appeals from the High Court of Delegates to carried into effect; and they are of opinion the Privy Council, in noticing the probable that without actual experience no accurate es-constitution of the latter Court, expressly retimate can be formed of the amount of busi- fers to the presence of a Civilian Judge; and ness which will hereafter he despatched by the bill for the better administration of justice in the single Ecclesiastical Court. "Upon the the Privy Council, which has lately received the data, necessarily uncertain, which are before sanction of both houses of parliament, after them, your committee, however, are inclined reciting the transfer as a just ground for the to think, that during peace the judicial duties establishment of the judicial committee, enuof the Ecclesiastical and Admiralty Courts merates the judge of the Prerogative.Court, and might be performed by a single Judge. On the judge of the High Court of Admiralty among the other hand, they feel bound to state, that the members of that committee, now the sole such is not the opinion of the great majority of tribunal of last resort from all the civil law the witnesses examined to this point, and that courts; and it may be doubted whether it will the following considerations have been urged be satisfactory to the suitors if the sentences of upon them by those whose experience and the Ecclesiastical and Admiralty Courts should · knowledge entitle them to the greatest weight; be finally decided upon in the absence of any that even if the question, “will or no will," be person acquainted with the principles and sent for trial to a jury, still many points of im- practice of these Courts, which must be the portance will come under the consideration of case if only one Judge be appointed. the Court, both before and after trial.

That in time of war, in addition to the conThat the business of the Prerogative Court siderations arising from theincreased occupation in the vears 18:27, 1828, 1829, was double that of the High Court of Admiralty, the assistance which was transacted in the years 1787, 1788, at prize appeals of a judge conversant with this 1789: and to this it is now proposed to add branch of jurisprudence is of the utmost mothe whole matrimonial and the rest of the tesinent; while, by reason of the augmented profits tamentary business of both provinces, includ of the bar at that time, the appointment of a ing the great manufacturing and commercial second Judge must be made on terms far less districts comprised within the diocess of Chester.advantageous to the public than it can be unThat there will also be the business of the der ordinary circumstances; and that with reHigh Court of Admiralty, which even in time ference to the subject matter of the jurisdiction of peace may be expected to increase, from the both of the Testamentary and Adiniralty extension of commerce and the opening of an Courts, speedy decisions are of paramount imunrestricted intercourse with China and other portance; so that any arrear of causes, occat

The Ecclesiastical and Admiralty Courts. - Abstracts of Recent Stalules.

499

sioned either by a pressure of business, or by I c. 53.) brought in by the present judge of the tbe illness of a single Judge, would be very in- | Prerogative Court, these offices, upon the exjurious to the suitors.

Ipiration of existing interests, are required to If for these reasons it shall be deemed ex- be executed in person. From these various

dient to appoint a second Judge, your com- sources, as well as from the abolition of the mittee recommend that the two Judges should | sinecure offices of the Registrar and Marshal of sit interchangeably, when occasion may require, the High Court of Admiraltry, a very large in the Ecclesiastical and Adipiralty Courts, and fund will be provided, from which, after payone or other in the Privy Council, in all cases ing the fixed salaries of the judge or judges, where the appeal is not from his own judg- and the officers of the Ecclesiastical and Adinent.

miralty Courts, and the retiring pensions of It appears likewise to your committee, that the former; and after making provision for it may be advisable to consider whether, un- the additional establishment of the Prerogative der modifications, jurisdiction of the adminis-registry, rendered necessary by the abolition tration of the effects of persons dying testate of all the other registries, and after the disor intestate might not hereafter be added to continuance or reduction of all office fees on the business of the Ecclesiastical Court. smaller properties, and compensation to all

Your committee further recommend that existing interests, it may be anticipated that a the Judge or Judges be appointed by the very considerable and increasing surplus will crown; that they should not be capable of annually be at the disposal of the public. Your sitting in the House of Commons; that they committee wish to add that they are convinced be paid a fixed salary out of the consolidated that arrangements may be made without diffifund, and that a suitable retiring pension be culty for facilitating to the public the ineans of provided for them, under guch restrictions as obtaining grants, and for giving them a ready the legislature may think fit to impose; that access to testamentary documents, by depositthe fees taken by all the officers of the courting at convenient places throughout the counand practitioners, with respect to probates and try indexes, copies of wills, and notes of adadministrations, be regulated, not merely with ministration, so that while the abolition of the a view to prevent any additional expense by county jurisdictions would afford great adreason ofthe abolition of the county jurisdictions, vantages to the public in the additional secubut to relieve properties of small amount from rity of grants, and the better custody and a part of the charges to which they are liable preservation of the original documents, it need under the present system ; that all office fees, as not be productive of any inconvenience, nor well on granting probates and administrations | burden the suitors with any additional expense, as on other matters, be brought into a general which it is hoped might be even diminished, fund; that all sinecures be abolished, and that especially in the case of the smaller properties. the efficient officers of the Ecclesiastical and 15th Aug. 1833. Admiralty Courts be remunerated by salaries in proportion to the trust and labour of their respective situations; that they be required, in all cases, to discharge their duties in person, | ABSTRACTS OF RECENT STATUTES. and not by deputy; and that compensation be made out of the general fee fund, as well to the judges and officers of the Courts to be PUNISHMENTS FOR HOUSEBREAKING AND abolished, as to those persons whose offices,

FORGERY. being sinecures, will be discontinued.

3 & 4 W. 4. c. 44. Your committee, in conclusion, would claim the attention of the House to the following re- This act was passed on the 14th August sults of these recommendations, in case they | 1833, and is intituled, “An Act to repeal so should be adopted :

much of Two Acts of the Seventh and Eighth By the proposed consolidation of all the Years and the Ninth Year of King George the ecclesiastical tribunals, upwards of 380 courts Fourth as inflicts the Punishment of Death in England and Wales, exercising jurisdiction upon Persons breaking, entering, and stealing of granting probate of wills, will be abolished. in a Dwelling House ; also for giving Power In each of these there must necessarily be a to the Judges to add to the Punishment of judge and a registrar; the latter, in a great Transportation for Life in certain Cases of proportion of cases, executes his office by Forgery, and in certain other Cases." deputy, and the former in many instances. By It recites the acts of 7 & 8 G. 4. c. 2, and the returns made to the ecclesiastical commis- 9 G. 4. c. 55, by which it was enacted, that if sion, it appears that the fees received by the any person should break and enter any dwelljudges, registrars and deputy registrars of the ing-house, and steal therein any chattel, two provinces, exceed 58,0001. per annum. money, or valuable security to any value whatIn the Prerogative Registry of Canterbury there ever, every such offender being convicted are also other officers, called Clerks of the Leet, thereof should suffer death as a felon : and that whose duties are very important, but who, in by each of such acts it was enacted, that in the the majority of cases, have for many years ex- case of every felony punishable under such ecuted their office by deputy; to these the respective acts every principal in the second principals have paid but a small part of their degree and every accessory before the fact large emoluments; but, by an act (10 Geo. 4. should be punishable with death, or otherwise, 500

On Imprisonment for Debt. in the same manner as the principal in the demand, through the medium of bailable profirst degree is by such respective acts punish- cess? able.

| But it is not always necessary to actually And reciting, that it is expedient that a arrest; the knowledge that it can be adopted is lesser punishment than that of death should be frequently sufficient. How then can a mode provided for the several oftences hereinbefore of reparation be complained of, the mere specified.

menace of which incites to tardy justice? It is therefore enacted, that so much of each But it is imputed, that the eagerness of of the two recited acts as inflicts the punish- tradesmen to obtain custom, causes an undue ment of death on persons convicted of any of use of the law of arrest. Even if this were the felonies hereinbefore specified shall, from true to the extent alleged, it could only deand after the 1st of January 1834, be re- nounce the abuse of the law, which is no ar pealed.

gument against its use. All things, the very 2. That after the 1st January 1834, every best, may be wrested to improper purposes ; person who shall be convicted of any of the and the utmost we can expect in any measure, felonies hereinbefore specified, as principals or the result of human legislation, is the predoaccessories before the fact, shall be liable to minance of good. There is always possibility be transported beyond the seas for life, or for of evil, and those who are studious to avail any term not less than seven years, as the themselves of the imperfection, should ever be Court before whom any such person shall be reprehended, and subjected to severe retribuconvicted shall adjudge, and, previously to tion where they can be reached. transportation, shall be liable to be imprisoned, But I deny that tradesmen, in general, are with or without hard labour, in the common so earnest to part with their goods without gaol or house of correction, or to be consned adequate enquiry as to the characters of their in the Penitentiary for any term not exeeeding customers, in the faith that the power of imfour years, or shall be liable to be imprisoned, prisonment will stand them in stead. Every with or without hard labour, in the common man who engages in business intends to obtain gaol or house of correction, for any term not payment for the articles of which he disposes, exceeding four years nor less than one year. but not resolving by anticipation, that if mild

3. That all persons punishable by transport- means be unavailing, coercive must be tried. ation for life under 2 & 3 W. 4. c. 62, inti- If he thinks about arrest at all, it is in the tuled, “ An Act for abolishing the Punishment | hope that he may never have cause to ascertain of Death in certain Cases, and substituting a lits efficacy, and not reckoning upon it as a lcsser Punishment in lieu thereof,” and all useful speculation. Tradesmen are notoriously persons punishable by transportation for life averse from resorting to lawyers, except upon under 2 & 3 W.4. c. 123, intituled, “ An Act for pressing occasion; and it is only where lenity abolishing the Punishment of Death in certain has failed, that compulsion is attempted. Cases of Forgery," shall be liable, previously | In the present day, there is too great a desire to their being transported, in case the Court in many of the middle and lower classes to before whom such persons shall be convicted make a better appearance than their circumshall think fit, to be imprisoned, with or with stances warrant, and this conducts them into out hard labour, in the common gaol or house the labyrinths of fraud. They graduate through of correction, or to be confined in the Peniten

the varieties of adverse fortune till the gaol tiary for any term not exceeding four years nor puts an end to their mistaken course. Are less than one year.

these the individuals whom charity should seek, and for whom the eye of the philan

thropist should moisten? ON THE LAW OF IMPRISONMENT That there may be occasionally an insolated FOR DEBT.

instance of great oppression that a really honest man, struggling with inevitable but un

sought difficulties, may be torn, by an unfeelTo the Editor of the Legal Observer.

ing creditor, from his woe-worn and starving Sir, In considering the expediency or inexpe

family, and consigned to imprisonment, which diency of any topic, there is no better guide

may end in the ravings of insanity, or the than experience; and, if I mistake not, the

gloom of despair—who is there acquainted with experience of the majority of persons qualified

man and his passions, that will be hardy to form an opinion on the subject, is decidedly

enough to deny? But in investigating whether in favour of Imprisonment for Debt.

a measure be or be not adapted to the service of

hou The most strenuous advocate for abolition

society, we must not let feeling eclipse the will admit, that where there has been frau

on frou judgment, nor form a hasty determination from dulent intention on the part of the debtor. a solitary instance of abuse. We must listen

to the voice of reason, and give ear to the arrest is not merely to be justified, but to be desired. And would he exempt those who

dictates of experience. These should conduct have incurred debts which they are unwilling

to the conclusion, and then the conclusion will

be safe. to pay, though there is no paucity of means? Is the creditor to wait their pleasure, and so

I am, sir, involve himself in difficulties? or is he wrong

Your most obedient servant, in obtaining a reluctant satisfaction of his just | City, Oct. 17, 1833.

T. W. G.

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