si -N > * *X)l M % ?> '/y v ^mm-ft*' AN APPEAL PRINCE ALBERT, A GREAT CONSTITUTIONAL QUESTION. BY A LATH MEMBF.lt OF THE M 11)1)1. K TKMl'I.K (Jffcttton. LONDON: JAMES RIDGWAY, PICCADILLY, JAMES DISX1S, P.VTEKNOSTER ROW. 1840. Ex Libris C. K. OGDEN AN APPEAL PRINCE ALBERT, ILLUSTRIOUS PRINCE, I MAKE no apology for this appeal to your Royal Highness on a great constitutional question ; though, if I needed an apology, I might find an ample one, in your being the consort of our beloved Queen, to whom the consideration of such questions peculiarly belongs. I might find an apology, like- wise, in your being the descendant of one, who was, in a more especial manner, the protector of civil and religious liberty in the person of the magnani- mous Luther. I might find some excuse, also, in the threefold character which I myself sustain in society, as a man, an Englishman, and a Christian. As a man, I consider nothing that happens to man as altogether foreign to me ; nor can I, as an Englishman, see the civil and religious liberty of Stack Annex 5 the meanest subject of this kingdom, wantonly and contemptuously trampled upon, without feeling some sympathy for the sufferer, and some indigna- tion likewise at him, however exalted his rank, who inflicts such an injury. I am far from insinuating that your Royal Highness is as yet any way im- plicated in such a transaction ; but I am desirous to warn you, that it is recorded in Scripture, as one of the wickedest acts of one of the worst of kings, that he shut up, without cause, a poor man in prison. Neither do I feel myself called upon to relinquish my character as an Englishman, because I claim also to be a Christian ; as I do not find that even the great apostle of the Gentiles, so called, despised his birthright as a Roman, on that account. There is nothing in the Christian religion that I know of, at least, which forbids our asserting and maintaining our rights, as free citizens. The question which I propose for your Royal Highness's consideration is simply this : whether, in this free country, we are to be governed by the Canon laws of Rome, or by the Common law of the land ; a question, the importance of which, I need not impress upon your Royal Highness, perhaps, by reminding you that even Luther, among the more despotic States of Germany, thought it the first step toward a sound reformation, the committing these Papal constitutions to the flames. He was well aware, that Churchmen have no more concern with civil legislation than Statesmen have with religion ; and that when either intermeddle with the other, A2 they have each got out of their province, and are only likely, in the end, to cause confusion and tumult. I need not remind your Royal Highness, I say, of this remarkable circumstance in the history of Luther, whereby he expressed a practical opinion, more potent by far than any mere speculation on the subject, that the toleration of this Canon law, in any kingdom, is utterly incompatible with the exist- ence, not only of civil and religious liberty, but even of religion itself. Neither, Sir, let any persuade you that this is a question of minor importance, by reason of the alleged insignificance of the case out of which it has arisen ; for it is very possible, as indeed it has often happened, that a very important principle should be involved in a very inconsiderable transaction. What signifies it, for instance, the very mitigated confinement which the Sheriffs of London have endured at the instance of the Parliament of Great Britain ? and, yet, no one will deny, that the privi- leges of that Parliament, whether they are to be maintained in their integrity, or partially conceded even to a Court, said to be of inferior jurisdiction, is a question of some importance to such as it concerns. But, Sir, the privilege of Parliament is one thing, and the arbitrary proceedings of a Court, which has crept in unawares to spy out the liberty, which we have both by the Statute and Common law of this land, is altogether another. I have said, that we ought not be swayed in our consideration of the question itself by the non- importance of the case, out of which it originally arises : neither ought we to be influenced by the supposed insignificance of the person who moots it. For it is a principle in our law, Sir, that a peasant has as good a claim to stand upon his rights as a prince ; and that, notwithstanding the sarcasms of the proudest aristocrat in such a case, a shoemaker, yes, Sir, I repeat it, a shoemaker is as well entitled to justice, as a sheriff. We all know what a great fire a little spark kindleth ; nor need I remind your Royal Highness, what a mighty ex- plosion even a single drop of water unduly confined, and expanded by heat, will produce. We read in the Journal of the House of Lords, and I give the speaker, whoever he was, full credit for the correct- ness of his statement, both as it regards the prin- ciple, and its application ; we read, I say, that " The liberty of men's persons is the greatest privilege, and ought not to be taken away, but in known cases. The invading of it has shaken the best constitutions. The taking away the LIBERTY of one mean person once endangered the government of ROME." Blackstone, likewise, informs us, that " The OPPRESSION of an obscure individual gave birth to the famous Habeas Corpus Act ; " and that, in the oppressive reign of Charles the Second, to which we may add, that if it had not produced this salutary REFORM in our laws themselves, it would, in all probability, have resulted in an earlier REVOLUTION. With this preface, Sir, we will proceed to the matter in hand, and if I should appear to enter a little more into detail on the bearing of certain statutes upon the question at issue, I hope your Royal Highness will excuse it on the ground, that you cannot be supposed to have made yourself master of the laws of England, on such a question, so perfectly as a native of that country. The question I propose for discussion is, you will recol- lect, whether we are to be governed by the Canon law of Rome, or by the Common law of England ; a question which has arisen out of the case of one John Thorogood, now confined in Chelmsford Gaol, for a contempt of the Ecclesiastical Courts. We were given to understand, indeed, and that on high authority in the first instance, that he was im- prisoned for the non-payment of a paltry sum of five shillings and sixpence, the insignificance of which was made an argument against him, without perceiving, that the very same circumstance of the non-importance of the demand, operated with ten- fold force against " the fury of the oppressors." But, however this be, it is no longer a question as to the ground of this commitment ; for we are now informed on a still higher authority, no less than that of the Judge of the Ecclesiastical Courts himself, that the said John Thorogood does not stand com- mitted for the non-payment of such rate, be it little or much, but for a contempt of the Ecclesiastical Courts, incurred by his own act of appeal from the jurisdiction of the civil magistrate. Now, Sir, I shall not stop to inquire whether this contempt was actually incurred by such act of appeal on his part ; though I am given to understand, by its being charged upon him as a breach of faith with the magistrates, that he did not prosecute such appeal, but that the contempt was incurred by his non- appearance to a suit commenced de novo by the opposite party. Taking it, however, that he did appeal to these courts, it cannot be unknown to your Royal Highness, that there is a large body of Ecclesiastics at the present day, who not only ap- pealed to the jurisdiction of the House of Lords, but after having prosecuted that appeal to the utter- most, have treated the decision of that Court with the most sovereign contempt. Are we then to suppose, that the House of Lords, the highest jurisdiction in this country, saving, perhaps, the King in Council, does not possess the right of committing for contempt, as well as the House of Commons, and these Ecclesiastical Courts ; or that the parties above mentioned, are entitled to some benefit of clergy, perhaps, beyond an ordinary subject ? But the truth is, Sir, that these contempts them- selves are something like " constructive treasons," of a very indefinite nature ; and I contend, that such arbitrary imprisonments for an uncertain crime, and for an indefinite period, are utterly in- compatible both with the Statute and Common law of the land. For we are to observe, that these courts themselves have, according to Blackstone, no jurisdiction in this country, excepting by suffer- 8 ance ; and, according to Burn, the great ecclesiasti- cal lawyer, that both the Civil and Canon law are subject to the Common law, which again submit- teth itself to the Statute law of the land. If, there- fore, we can show, that such commitments are inconsistent with the Statute law itself, I conceive we shall have done enough to demonstrate, that they ought to have no longer toleration in this country. The first statute which I shall quote upon this subject is that of Magna Charta itself; which pro- vides, that " no freeman shall be taken, or im- prisoned, but by the lawful judgment of his equals, or by the law of the land : " and, " many subsequent old statutes, (adds Blackstone, who is our authority on this subject) expressly direct, "that no man shall be taken or imprisoned by suggestion, or petition to the King, or his Council, (even) unless it be by legal indictment, or the process of the Com- mon law. By the petition of right, 3 Car. I., it is enacted, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I. c. 10, " If any person be restrained of his liberty, by order or decree of any illegal court, or (even) by command of the King's Majesty in person, or by warrant of the Council Board, or of any of the Privy Council ; he shall, upon demand of his counsel, have a writ of Habeas Corpus, to bring his body before the Court of King's Bench, or Common Pleas; who shall determine whether the cause of his commit- ment be just, and thereupon do as to justice shall appertain. And by 31 Charles II. c. 2, commonly called the Habeas Corpus Act, the methods of ob- taining this writ are so plainly pointed out, and enforced, that so long as this statute remains un- impeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And lest this Act should be evaded by demanding un- reasonable bail, or sureties for the prisoner's appear- ance, it is declared, by 1 W. & M. st. 2, c. 2, that excessive bail ought not to be required." Such are the provisions which these statutes make for the liberty of the subject, a liberty of so great importance, that, as Blackstone observes, " If once it were left in the power of any, the highest magistrate, to imprison arbitrarily, whomever he, or his officers, thought proper, there would soon be an end of all other rights and immunities." The object of these several Acts, as your Royal Highness will perceive, is evidently to guard against the possibility of arbitrary imprisonment. By ar- bitrary imprisonment, I mean imprisonment at the will of one or more individuals, without the inter- vention of a jury ; for an uncertain crime, and for an indefinite period. Let us now consider, then, how far these commitments for contempt by the Ecclesiastical Courts accord, either with the letter or spirit of these several statutes. No freeman, it seems, is to be imprisoned, but by a verdict of his equals, and according to the law of the land. I am 10 aware that there is a statute of Henry VIII., giving a limited jurisdiction to these Ecclesiastical Courts ; but then, it is expressly provided by this same statute, that it shall only be exercised accord- ing to the customs and Statute law of the land. If, therefore, any proceeding in these courts should con- travene other statutes, as I contend that this pro- cess of commitment for contempt undoubtedly does, it is evident that these courts can derive no authority for such a proceeding from the statute in question ; and I have yet to learn, that the not ac- knowledging the jurisdiction of these courts, that is, a foreign jurisdiction in this free country, is such a crime at common law, as ought to consign the culprit to perpetual imprisonment. I say, perpetual imprisonment, Sir, because it is manifest that if such an one is determined not to submit, and nothing will purge his contempt but submission, there is no chance of his deliverance out of such a state of confinement, but by the summary process of death. It may be contended, indeed, that other courts also possess this power of commitment for contempt, and that these Ecclesiastical Courts in particular, could not well subsist without it, seeing they have no other means qf bringing the parties into court, but by such a commitment. That other courts pos- sess this power I am willing to admit, but it is equally clear that they either do not exercise it, as in the case of the House of Lords with the Church of Scotland, or that they exercise it in such a manner, as in the instance of the House of Com- 11 mons with the two Sheriffs, that it were better they had never exercised it at all. Here are two persons committed for contempt, and, without any submis- sion whatever, discharged out of custody, under pretence of ill health ; while another is detained, at the suit of the Ecclesiastical Courts, who is really and severely suffering from sickness, occasioned en- tirely by the dampness and unwholesomeness of the prison in which he is confined. Let the House of Commons beware, lest they bring themselves into contempt, if they persist in this sort of left-handed justice. Neither can it be contended, that such a process of arbitrary imprisonment is necessary for the ends of justice; since, although it be admitted that some other courts, as the Court of Chancery for instance, possessfe4- the same power, yet it is evident, that the business of the other courts of law is quite as well, and effectually, conducted without it. Nor were it to be much lamented, perhaps, if the Court of Chancery itself were also stripped of this arbitrary power; since, it is notorious, that many persons have been committed for contempt by that court, and held in custody for a long series of years, from no other cause whatever but sheer inability, to meet the expense of putting in an answer. And, if I am rightly informed, the contempt of John Thorogood also consists much in not being able to pay the costs of the suit. Hitherto, Sir, I have confined myself to civil con- siderations ; but there is another point of view in 12 which this question assumes a more serious aspect. I say, that this commitment and detention of John Thorogood is in direct violation of another important statute, known by the name of the Act of Toleration. By this Act, Sir, it is provided, that any person con- forming to certain conditions, among which I do not find that the acknowledging of the jurisdiction of Ecclesiastical Courts is one., shall be exempted from the penalties of all preceding statutes on the subject of religion. Now, Sir, I take it for granted, and I doubt not your Royal Highness will fully agree with me, that among these statutes, from the penal- ties of which all such persons were to be exempted, must of course have been included that statute, before cited, of Henry VIII., which gave a sort of qualified, and if Bishop Warburton is to be believed, only a temporary jurisdiction to these courts. This, I conclude, Sir, because I apprehend that no Dissenter, as such, can conscientiously ad- mit the jurisdiction of these courts, seeing that they not only derive their authority from the Court of Rome in the first instance, but are essentially de- pendent upon, and indeed form part and parcel of, that very church from which he dissents. Added to this, Sir, no person can be purged of this fictitious crime of contempt, without not only acknowledging the jurisdiction of the court, but swearing obedience to a bishop for the future. Now this, it is clear, no conscientious Non-conformist, whether Dis- senter, or Catholic, can do; and that, therefore, an imprisonment for contempt, in the case of such 13 a person, must not only amount to a perpetual im- prisonment, unless liberated by some extra-judicial authority, of which there seems no probability in the present instance ; but is in the nature of a direct penalty on non-conformity, from all which penalties Dissenters were, or till lately were thought to be at least, by the Act of Toleration, exempted. Such, illustrious Prince, is the jealousy of the English law for the liberty of the subject. The reason of this jealousy is thus assigned by Black- stone: " To bereave a man of life," says this respect- able authority, "or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by se- cretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less strik- ing, and, therefore, a more dangerous engine of ar- bitrary government" How far this has been the case in the present instance, that a man has been hurried to prison, where his sufferings are unknown or forgotten, and that without accusation or trial, we shall not stop to inquire ; but shall only observe, that it was in this spirit of jealousy for the liberty of the subject against the encroachments of the Ecclesiastical Courts in particular, that the Barons protested against any innovation in the law, at the famous Parliament of Merton, saying, that " they would not have the laws of England changed," from native to foreign, or from the Common law of 14 England, to the Canon law of Rome. It was in this spirit, likewise, that, by the statute called the Con- firmation of Charters, it was expressly enacted, that this statute should be read yearly in all Cathe- drals throughout the kingdom ; thereby giving the clergy to understand, that these charters were above and beyond all Ecclesiastical jurisdiction whatsoever. And, lastly, it was in this same spirit of jealousy for the liberty of the subject, that by the Act of Habeas Corpus, a jurisdiction was given to the courts of Common law, paramount even to commitments by the Crown. " Magna Carta," says Blackstone, " only, in general terms declared, that no man shall be imprisoned contrary to law ; the Habeas Corpus Act points him out effectual means, as well to re- lease himself, though committed even by the King in council, as to punish all those who shall thus uncon- stitutionally misuse him" Such, Sir, I repeat, is the jealousy of the law for the liberty of the subject. I had almost said that there is nothing of which an Englishman is more jealous than of his personal liberty ; but, upon reflec- tion, it occurs to me that there is one thing of which he is equally, if not more jealous, and that is the liberty of opinion, and the consequent liberty of the press. I am induced, Sir, to make this addition, because of an ordinance I have seen lately, erecting the magistracy, consisting for the most part perhaps of the clergy, into a sort of High Commission, or Court of Inquisition, to take cognizance of all blas- phemous and immoral publications, and to furnish 15 Government with evidence against the authors. What is this, in truth, but to constitute the clergy, censors of the press, as if they were not already active enough in the suppression of all publica- tions obnoxious to themselves. Who knows not, in- deed, what blasphemy was in the days of St. Paul, even opposition to the established religion, though that religion might be the worship of Diana ; and who knows not also that this said Paul was, in the account of such persons, " a pestilent fellow, and a mover of sedition among all the Jews throughout the world, and a ringleader of the sect of the Na- zarenes, who also hath gone about to profane the temple." Who knows not, indeed, that the enemies of superstition have always been accounted the ene- mies of virtue and of religion ; and, as such, have always been subject to the persecutions of arbitrary power, especially in the hands of ecclesiastics, whenever they could get an opportunity to wield it. Blasphemy and immorality are words of difficult and of doubtful interpretation. " All accounts seem to concur in the supposition," says a modern divine, " that it was the Divinity of our Lord, which could not be disclosed without so much danger; and indeed, this, or the doctrine of the Trinity, was the subject of the Christian mysteries of the early Church ; may it not be the case, therefore, that this was in some way connected with the sin against the Holy Ghost ?"* Now, Sir, if this be a correct definition of the sin against the Holy Ghost, which * Tracts for the Times, No. 80, p. 15. 16 is the worst kind of blasphemy, who knows hut the Bishop of Exeter might himself.be convicted under his own law ? for surely, Sir, he will not suppress the doctrines of the Trinity, and of the Divinity of our Lord, for fear of incurring this censure. And surely, too, if any one ought to be prosecuted for the propagation of Socialism, under pretence of its immorality, it is he who has not only given us a most detailed exhibition of those immoralities him- self ; but, if all accounts be true, and I see no reason to doubt them, has been the occasion that " The New Moral World," so called, has circulated one hundredfold more since this exposition of " Social- ism made easy," than it had done before it was thus advertised. I might quote, Sir, the advice of Gamaliel on this subject, which appears to me as wise, at least, as that of the Bishop in question. I might cite also the au- thority of Luther, for letting such persons as the So- cialists alone; but I shall content myself with adding, and I do it with every feeling of respect for the parties concerned, " Would that some right-minded magis- trate might transmit this letter to Her Majesty's Minister for the Home Department, and tell him, at the same time, that if he wishes to forfeit the con- fidence of the country, the first step will be to invade the liberty of the subject ; and the next, the liberty of the press." May God bless your Royal Highness. AMEN. W. Tyler, Printer, 5, Bolt-court, London. I K3M p2> JQmnN* G C ii s ^AHvaaiB^ 5S\E-UNlVERi/y '*- # ^Aavaan-^ I ? s s ^UNIVERSji IVER% ^1 ! $ i i > > = 5 s A^EUNIVERS/; =S o . ^ N ^KHmO-JO' 1 ^OF-CAUFO^ $i i? UC SOUTHERN REGIONAL LIBRARY FACILITY