496

Miscellanea.-Editor's Letter Box.

MISCELLANEA.

ACTION PRO RATIONABILI PARTE.

In the reign of Edward 3, (as appears by 3 Reeves' Hist. p. 70,) notwithstanding the decisions of the Courts in the former reign, in favour of a man's power of bequeathing his personal effects away from his wife and children, actions of detinue pro rationabili parte were frequently brought in this reign. But the Court confirmed the opinion then advanced. In one case an action was brought by the children to have a reasonable part of their father's goods, when Thorpe, one of the justices, said, How can we give judgment, when you have brought an action that is contrary to law?' and Mowbray, another justice, said, the Lords in parliament would never grant that this action should be maintainable by any common custom of the realm.' From this it is clear that, owing to the particular custom of certain places, by which a man's power of bequeathing his goods was restricted, and also owing to the very prevalent practice of leaving the rationabiles partes to the wife and children, though not required by any positive law to that effect, much uncertainty prevailed on this subject in the minds of people, although the Courts had uniformly held but one doctrine.

STRIKING IN COURTS OF LAW.

At this time (Edw. 3), and probably since the Conquest, it had become the law, that if any one drew a weapon upon any judge or justice in Westminster Hall, or in any of the King's Courts, he was to lose his right hand, to be imprisoned perpetually, and forfeit all his goods and chattels, and, as it should seem, his lands too in this reign; but Lord Coke poses the forfeiture of lands was only for life, but it is most probable that this depended on the nature of the offence, whether aggravated

or otherwise.

sup

The striking a juror, for giving a verdict against a man in Westminster Hall, was punished with the loss of lands and goods, besides the amputation of the right hand. Besides, not only those who were guilty of such an act of violence, but also those who disturbed such Courts by threatening or reproachful words to any judge sitting in them, were guilty of a high misprision or contempt. In the time of Edward 1, one William Bruce, upon hearing judgment given against him in the Exchequer, said to the chief baron, Roger, Roger, thou hast had thy will of me, which of a long time thou hast sought, and I will remember thee,' was, for these words, imprisoned during the King's pleasure, and ordered to walk from the King's Bench to the Exchequer, bareheaded and ungirt, and to ask forgiveness, &c. This is a part of the common law which, as respects the offence, has remained unaltered to the present day, and in regard to the punishment, is no otherwise altered than as the king, by his prerogative of mercy, may think fit.

SANCTUARY.

Saxons converted their churches, as the Britons before had converted their temples, into sancthemselves from the hasty resentment of the tuaries, whither homicides might flee to protect injured party. They might also seek refuge with an alderman, an abbot, or a thane, for three days; and with a bishop for nine days. A penalty was inflicted on the violation of sanctuary. By a law of Alfred, no one was to take revenge until he had demanded compensation, and it had been refused. If the offender led to his own house, the injured party might besiege him there for seven days; and, if needful, might have the assistance of the magistrate to prevent his escape. If, at the expiration of that time, the aggressor were willing to surrender himself and his arms, his adversary might detain him for thirty days, but was afterwards obliged to restore him safe to his friends, and be contented with the compensation. This Privilege of sanctuary extended also to thieves, who in such cases inight make restitution of the plunder; but if the thief repeated the offence, he was then obliged to leave the church, and provinciam forisjurare, to forswear the county, that is, swear that he would not return to it; which, when applied to the kingdom, was afterwards called abjuring the realm.

THE EDITOR'S LETTER BOX.

An Index, Title-page, and Contents to Vol. VI., will be given with our next number, withadditional charge.

out any

The Third Part of the Commentaries on the New Statutes effecting Alterations in the Law, will be published next Saturday. It will contain the Chancery Regulation Act, and all the remaining Acts coming within its object.

The Fourth Part of the Analytical Digest of all the Cases reported since November, 1832, which will complete the Third Volume, will be published on the third Saturday in November.

The Papers on " Municipal Corporations;" on the "Statutes of Limitation as to Rent,” (from two Correspondents), and on the "Defects of the Uniformity of Process Act," shall be immediately considered.

The Article on Friendly Societies is approved, and will appear on Saturday next.

The Queries and Answers of A. H. D.;

J. N.; M.; C. S. B.; B.; J. A.; T.; a Court
Holder; J. S.; T. T. P.; and W. D., have been

received.

The Seal Paper in Chancery was given in the Number for Sept. 14, 381.

p.

E. S. points out an error of the press in p. 49, of the Second Part of our Cominentaries, first column, line 17 from bottom, for "descendant of the father," read "father."

The paper on the Law of Arrest we hope to find room for soon.

The suggestion of T. T. P., that we should publish the Second Report of the Real Property Commissioners, and thus complete the series, shall be considered.

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 Fearne.

VOL. VI.

The Legal Observer.

SUPPLEMENT FOR OCTOBER, No. CLXX. 1833.

"Quod magis ad Nos

Pertinet, et nescire malum est, agitamus."

HORAT.

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

COURTS.

REPORT FROM THE SELECT COMMITTEE.

history of the Spiritual Courts. They have contented themselves with drawing the outlines of the system which it appears to them expedient that the Legislature, under all the aircumstances 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-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 Judge of the Consistory Court of London, and to whom the reports of the Ecclesiastical Commission, the Common Law Commissioners, and the Irish Admiralty Courts were referred, and who were empowered to report the minutes of evidence taken before them, have considered the matters referred to them, and have agreed upon the following report:

In order to arrive at any satisfactory conclusion as to what ought to be the future constitution of these tribunals, your committee have found it necessary to enter upon an extensive field of inquiry, to ascertain what will be the probable amount and nature of the business which will hereafter be brought before them. They have more especially considered it to be their duty to do so, as they found in the reports of the ecclesiastical and real property commissioners, which were referred to them, conflicting opinions with regard to the course which it would be for the public interest that the Legislature should pursue, while both agreed in advising the most important alterations in the existing system.

Your committee have, therefore, both maturely considered these reports, and have examined witnesses of the highest authority in the various branches of the law of this country, to whose testimony they beg to call the atten

tion of the house.

In submitting the following recommendations as the result of their inquiries, your committee beg to say, that they have not attempted to enter into all the various details connected with the main subject, and on which ample information will be found in the reports of the ecclesiastical and real property commissioners; the former of which, especially, undertook a long and pa

NO. CLXX.

tions, be abolished, except the Arches and Prerogative Court of Canterbury, and that those two Courts be united. Upon this point they express themselves with the less hesitation, as both the commissions are agreed on the manifold advantages of such a consolidation. It is true that the ecclesiastical commissioners do not expressly advise the abolition of the Provincial Court of York, although they appear to incline to that opinion; but from the evidence your committee have received, as well as the consideration which they have given to the subject, they entertain no doubt of the expediency of including the province of York within the general rule.

Your committee further recommend, that the one Court sitting in London shall be the only Court for the probate of wills and the granting of administrations, and shall exercise jurisdiction over the several causes and matters recommended by the report of the ecclesiastical commissioners, subject to such modifications with respect to wills of real estate as may be deemed advisable. With reference more especially to the trial by jury of the validity of wills disposing of real property, your committee would particularly direct the attention of the House to the following passage in Lord Chief Justice Tindal's evidence, from which it appears, that though he and the late Lord Tenterden ultimately acquiesced in the recommendation of the ecclesiastical commissioners as it at present stands, they were originally of a different opinion:- "The part of the report about which there was the greatest doubt was that which related to the trial of the issues upon wills of realty by the Ecclesiastical Court. Both Lord Tenterden and myself were desirous that either party might have the right 2 K

498

The Ecclesiastical and Admiralty Courts.

to take it to the assizes, or to a common law Court; but we found the commissioners in general thought it sufficient if the Judge of the Court directed it to be sent there, or both parties concurred in that wish, and we therefore acquiesced in the resolution." p. 133. No. 1,409.

distant parts of the world, where questions of bottomry and other matters within the jurisdiction of that Court are likely to take their origin. That even when the public business was much less, and while the Court at York and all the diocesan and inferior jurisdictions 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 en- ministered 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 title to ships generally, and of freight, and possibly of some other mercantile matters, with a power of empannelling a jury of merchants if the Judge think fit, or either of the parties require it.

Your committee also think it right to call the attention of the House to the following considerations." That the appointment of a second Judge will not entail the necessity of any increased establishment of officers, nor any additional 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 be despatched by the single Ecclesiastical Court. Upon the data, necessarily uncertain, which are before them, your committee, however, are inclined to think, that during peace the judicial duties of the Ecclesiastical and Admiralty Courts might be performed by a single Judge. On the other hand, they feel bound to state, that such is not the opinion of the great majority of the witnesses examined to this point, and that the following considerations have been urged upon them by those whose experience and knowledge entitle them to the greatest weight; that even if the question, “will or no will," be sent for trial to a jury, still many points of importance will come under the consideration of the Court, both before and after trial.

:

the bill for the better administration of justice in the Privy Council, which has lately received the sanction of both houses of parliament, after reciting the transfer as a just ground for the establishment of the judicial committee, enumerates the judge of the Prerogative.Court, and the judge of the High Court of Admiralty among the members of that committee, now the sole tribunal of last resort from all the civil law courts; and it may be doubted whether it will be satisfactory to the suitors if the sentences of the Ecclesiastical and Admiralty Courts should be finally decided upon in the absence of any person acquainted with the principles and practice of these Courts, which must be the case if only one Judge be appointed.

That in time of war, in addition to the conThat the business of the Prerogative Court siderations arising from the increased occupation in the years 1827, 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 tes-ment; while, by reason of the augmented profits tamentary business of both provinces, includ ing the great manufacturing and commercial districts comprised within the diocess of Chester. That there will also be the business of the High Court of Admiralty, which even in time of peace may be expected to increase, from the extension of commerce and the opening of an unrestricted intercourse with China and other

of the bar at that time, the appointment of a second Judge must be made on terms far less advantageous to the public than it can be under ordinary circumstances; and that with reference to the subject matter of the jurisdiction both of the Testamentary and Admiralty Courts, speedy decisions are of paramount importance; so that any arrear of causes, occa

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

sioned either by a pressure of business, or by the illness of a single Judge, would be very injurious to the suitors.

If for these reasons it shall be deemed expedient to appoint a second Judge, your committee recommend that the two Judges should sit interchangeably, when occasion may require, in the Ecclesiastical and Admiralty Courts, and one or other in the Privy Council, in all cases where the appeal is not from his own judg

ment.

It appears likewise to your committee, that it may be advisable to consider whether, under modifications, jurisdiction of the administration of the effects of persons dying testate or intestate might not hereafter be added to the business of the Ecclesiastical Court.

499

c. 53.) brought in by the present judge of the Prerogative Court, these offices, upon the expiration of existing interests, are required to be executed in person. From these various sources, as well as from the abolition of the sinecure offices of the Registrar and Marshal of the High Court of Admiraltry, a very large fund will be provided, from which, after paying the fixed salaries of the judge or judges, and the officers of the Ecclesiastical and Admiralty Courts, and the retiring pensions of the former; and after making provision for the additional establishment of the Prerogative registry, rendered necessary by the abolition of all the other registries, and after the discontinuance or reduction of all office fees on 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 means of provided for them, under such 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 administrations, be regulated, not merely with a view to prevent any additional expense by reason of the abolition of the county jurisdictions, but to relieve properties of small amount from a part of the charges to which they are liable under the present system; that all office fees, as well on granting probates and administrations as on other matters, be brought into a general fund; that all sinecures be abolished, and that the efficient officers of the Ecclesiastical and 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, 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 abolished, as to those persons whose offices, being sinecures, will be discontinued.

Your committee, in conclusion, would claim the attention of the House to the following results of these recommendations, in case they should be adopted :

try indexes, copies of wills, and notes of administration, so that while the abolition of the county jurisdictions would afford great advantages to the public in the additional security of grants, and the better custody and preservation of the original documents, it need not be productive of any inconvenience, nor burden the suitors with any additional expense, which it is hoped might be even diminished, especially in the case of the smaller properties. 15th Aug. 1833.

ABSTRACTS OF RECENT STATUTES.

PUNISHMENTS FOR HOUSEBREAKING AND

FORGERY.

3 & 4 W. 4. c. 44.

to the Judges to add to the Punishment of Transportation for Life in certain Cases of Forgery, and in certain other Cases."

THIS act was passed on the 14th August 1833, and is intituled, "An Act to repeal so 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 judge and a registrar; the latter, in a great proportion of cases, executes his office by deputy, and the former in many instances. By the returns made to the ecclesiastical commis-9 sion, it appears that the fees received by the judges, registrars and deputy registrars of the two provinces, exceed 58,000l. per annum. In the Prerogative Registry of Canterbury there are also other officers, called Clerks of the Leet, whose duties are very important, but who, in the majority of cases, have for many years executed their office by deputy; to these the principals have paid but a small part of their farge emoluments; but, by an act (10 Geo. 4.

It recites the acts of 7 & 8 G. 4. c. 2, and G. 4. c. 55, by which it was enacted, that if any person should break and enter any dwelling-house, and steal therein any chattel, money, or valuable security to any value whatever, every such offender being convicted thereof should suffer death as a felon : and that by each of such acts it was enacted, that in the case of every felony punishable under such respective acts every principal in the second degree and every accessory before the fact should be punishable with death, or otherwise,

On Imprisonment for Debt.

in the same manner as the principal in the first degree is by such respective acts punish

But it is not always necessary to actually arrest; the knowledge that it can be adopted is frequently sufficient. How then can a mode of reparation be complained of, the mere 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 arpealed.

The most strenuous advocate for abolition will admit, that where there has been fraudulent intention on the part of the debtor, arrest is not merely to be justified, but to be desired. And would he exempt those who have incurred debts which they are unwilling to pay, though there is no paucity of means?? Is the creditor to wait their pleasure, and so involve himself in difficulties? or is he wrong in obtaining a reluctant satisfaction of his just City, Oct. 17, 1833.