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Clarke, late of Portugal Street), 26 and 39, BELL YARD, will insure its punctual delivery in London, or its being forwarded on the evening of publica tion, through the medium of the Post Office, to the Country. London: Printed by WALTER M'DOWALL, PRINTER, 4, PEM BERTON ROW, and Published by STEPHEN SWEET, BOOKSELLER No. 289. LONDON, JULY 23, 1842. PRICE 18. * The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: dence, and therefore they shall not be examined; the Legislature says, Not so-some of them may speak the truth-let them be examined, and let the jury decide what credit is due to them. What is the conclusion from this, but that, if such persons are to be witnesses, it is more than ever necessary to impose upon them every possible obligation to speak the truth? Who are so likely to object to be sworn, as those who are unwilling, from motives of interest, to tell the truth? and how many consciences will there not be, faithful enough to their possessors, to conjure up a scruple when occasion requires! We are fully aware of the plausible argument that may be adduced in favour of dispensing with an oath. To compel a person to do that which he sincerely believes to be contrary to the law of God, appears to be a violent proceeding, and opposed to the acknowledged principle of religious toleration; and the reasons for WHEN the work of alteratiou is once begun, it is very difficult to know where to stop. Of this, in matters of a private nature, instances may be daily seen amongst those who delight in building their own habitations; and in public matters we have abundant illustrations of it in the House of Commons, and some in the House of Lords. It is to one of the latter that we are now about to allude. Some time ago the noble and learned Lord who presides in the Court of Queen's Bench proposed some alterations in the Law of Evidence, which we may venture to say met with the almost unanimous approval of those who were qualified to form an opinion upon the subject. Our readers need hardly be reminded that these alterations consisted in allowing certain persons to give evidence, who are now, on account of interest in the result, infamy, or other causes, rejected; or, in more comprehensive terms, mak-it, derived from public policy and the interests of ing such matters a cause of objection to the credibility the community, are not easily understood by common of the witness, and not to his competency to be ex- minds. When we see a man willing to undergo imamined. To these propositions was however appended prisonment, or contribute an extraordinary supply to another, having for its object, if we remember rightly, the Queen's revenue, rather than act inconsistently the exempting a certain class of Baptists from taking with his opinions, we are undoubtedly apt to regard him. oaths in courts of justice. This was for a time aban- as a martyr, and believe he would as readily speak the doned by the learned Lord, on its being suggested that truth without taking an oath as with; but it must be it would be better to make it the subject of a separate remembered, that it is one thing to refuse now, when measure. The matter has not, however, been allowed the law will punish the refusal, and another when it is to drop, and a discussion has taken place in the House permitted. Many who would not refuse now, will find of Lords, from which it would appear that other noble no difficulty when no risk is to be run. It is only nelords are in favour of such a proposition. With all due cessary, we think, to consider what is the purpose of a deference to their authority, we must record our hum-judicial system, to arrive at the conclusion, that such a ble opinion against it. We wonder it did not suggest itself to those who support these views, that they were not at all consistent with the other proposed alterations. The law says there are certain persons, who, from their peculiar circumstances, may possibly, notwithstanding the solemnity of an oath, be tempted to give false eviVOL. VI. BB dispensation from taking an oath could not be safely granted. Courts of Justice are established for the purpose of redressing injuries committed by one member of a society upon another, for both civil and criminal law aim at that end, the difference being only in the latter regarding the wrong done to the individual, as an injury where to stop. Our readers will easily suggest to their own minds other instances where this principle would be applicable; and dangerous indeed would it be to admit it. Let us not do it then; nor in a case where benefit is, to say the least, problematical, rashly interfere with the present system. Review. also to the social body. It is necessary, therefore, that the tribunal which is to administer redress should be accurately informed of the facts relating to the injury; and the very best means to obtain that information ought to be adopted. It will be said then, if your great object is to find out the truth, and the depositary of the facts will reveal them as truthfully without an oath as with, why is it required? This assumes that the bare affirmation will have the same effect as the oath; and we do not deny, that, with some persons, it may be so. We will admit then, for the sake of argument, that the truth would be as surely got at by allowing individuals who believed their bare word to be as binding as any form of swearing, to give evidence in that This is a book of a somewhat singular structure, of manner. What answer is to be given then to the ar- which a general idea may perhaps be conveyed, by sup gument? We apprehend this:-The aim of a judicial posing it to be the answer of a modern equity draftsman system is, not simply to redress injuries, but to pre- to the question, whether or no. Roman Catholics in vent them also; and its proceedings should be con- England have any and what rights;—the answer of our ducted in such a manner as to inspire the members author being couched in this form-that the Roman of society with confidence that they will be able to find Catholics labour under such and such disabilities, statprotection. Unless individuals can rely upon the lawing them, and save as aforesaid, he admits that they A Guide to the Laws of England affecting Roman Catho- have the same rights as other people. We wish not to be understood as intimating that Mr. Anstey dwells upon the disabilities of Roman Catholics, for the purpose of exaggerating them, and holding them up as grievances; on the contrary, he very properly and carefully confines himself to collecting the law on the of observation not strictly in the nature of legal comsubject, and indulges in the very least possible quantity mentary; and we consider his work as a valuable addition to those, whose great merit is bringing the laws affecting particular classes of persons into such order and condensation as to render reference easy. We believe enactments and decisions bearing on the civil and politithere is no other work which collects all the scattered cal rights and disabilities of Roman Catholics, so as to facilitate the labours of the lawyer who may have in the course of practice to consider the effect of the laws on those rights. as a guardian from injury, the well-being of society is at an end. That reliance must be founded upon an opinion that the laws are themselves just, and are administered by able and impartial judges; and there must also be a conviction that the judge will be rightly informed of the controversy. No man will enter a court of justice unless he believes that the facts within his own knowledge will also be placed within the knowledge of the judge; and, therefore, it is not sufficient that the truth should be told in courts of justice; it must be told in such a manner as to obtain the confidence of society. The question then is reduced to a very small compass. Does, or does not, the great majority of the people of this country believe that there is any effect in an oath? There can be no doubt that it does, although there may be some individuals who from the purest motives object to swear. Are we, then, to gratify the Mr. Anstey commences by shewing the statutory enactments on the effects and formalities attendant on scruples of a few, by doing violence to the feelings of the the taking of the Catholic oath, He next discusses many, destroying their confidence in the law, and rudely those general disabilities which still, notwithstanding violating the security they now enjoy? Not at all; and the various relief acts, affect the condition of conform the exceptions which have been allowed strengthen our ing Catholics, or those who consent to take the oath; argument. In the cases of the Quakers and Moravians, and the perusal of this chapter will shew that such disthe opinion regarding oaths is well known. It forms abilities, contrary to the generally received notions of the unlearned, are by no means few. Whether it is one of a class; and the individual proclaims by his conproper or improper that, such as they are, they should duct in other respects his adoption of it. But if indi-exist, is a question on which, in imitation of Mr. Anstey, viduals belonging to no particular sect are to be allowed we shall offer no opinion; but the fact is clear that they to object to an oath, by what means is the conscien- do exist to a very considerable extent. tiousness of the objection to be ascertained? Perhaps ticular disabilities of Roman Catholics, not being qualiThe next subject discussed by Mr. Anstey is the parhe may never before have had occasion to mention the fied at law, that is, the disabilities which still affect subject; or, if so, to a few only. In fact, no distinction Catholics, who either do not take the oath appointed to could be made. Oaths must, we apprehend, be preserved persons of their persuasion, or who omit certain formaas at present, or altogether abolished. That the present lities. For it must not be forgotten that, as it is exsystem is much abused, that oaths are now administered pressed by Mr. Anstey, (p. 29)," Among the provisions in so careless and irreverent a manner as to be a disof the relief acts, mitigating the ancient rigour of the penal code, there are very few which are not made to depend on the fulfilment of certain conditions." The relief acts do not abolish the law, and by mere force of the statute avoid the disabilities of Roman Catholics, but simply enable those Roman Catholics who will submit themselves to a specific test, to take themselves out of the operation of the law. grace to a Christian country, are reasons only for its reformation, not abolition. Our limits forbid us from proceeding further. The giving way in the present case would probably soon be followed by an objection to being a witness at all, as thereby becoming a party to litigation. And wherefore should not that objection be as conscientious as the other? Once allow that the doing violence to a man's conscience is of sufficient weight to overbalance all other things, and we shall not know to which the courts would be at this day astute to find No doubt there are portions of the law, with regard reasons for avoiding to carry them into effect. For instance, let us take the case of the statutes making cer tain acts, such as extolling the papal authority, high treason. After stating some of these, Mr. Anstey observes, "The decisions under these acts have very 'greatly extended their application. It has been holden 'that the mere act of commending a book in defence of 'the papal supremacy, or allowing it to be good after 'having read it, or even after having heard a report of 'its being written in a foreign country, is an extolling or setting forth of the papal authority within the meaning of the statute. It has even been holden, (although two of the judges dissented from that construction), that a judge may ask a prisoner after conviction of and 'condemnation for a first offence, whether he be still of the same opinion; and that if he answer in the affirmative, he is guilty of high treason, as having advisedly 'maintained the Pope's power a second time." We apprehend, that, at the present day, few judges would have (to use the expression of the Lord Chancellor in a late debate on a very different subject) stomachs to digest such a rule of law. . There is another point also on which we disagree with the learned author. In page 92 he says, in commenting on the existing law under the late acts as to the solemnization of marriages, (6 & 7 Will. 4, c. 85; 7 Will. 4 & 1 Vict. c. 22), that the statutory enactment which makes it felony to solemnize any marriage under the acts in England, (except between Jews and Quakers), otherwise than in an Anglican chapel, unless by special licence, or than in a registered building, or a Registrar's office under the act, "is likely to have a serious operation among Roman Catholic clergymen attending the sick. It is not unfrequently that they feel themselves called upon to urge penitents, in certain eases, to make reparation on their death-beds by marriage. Such marriages, of course, have been never considered valid, except in foro conscientiæ, and as binding the parties, when convalescent, to complete them by a recourse to the formalities required at law. But, by this section, all 'illegal celebrations of marriages being made felonies, without any reservation in favour of such peculiar cases, it may often happen that the Roman Catholic ecclesiastic will find himself seriously compromised 'between his conscientious sense of duty and his inclination to obey the temporal law." Now, we apprehend, that, when the act makes it felony to solemnize a marriage, it means a marriage, which, being solemnized and consummated, would be particular prescribed formalities; and that a marriage, purely affecting the conscience, and that only in reference to the particular religious creed of the parties, is not such a marriage as the act contemplates for the purpose of annexing penalties to the irregular solemnization of it. These, however, are debatable points, on which, probably, no two lawyers would agree, and the views offered upon them by Mr. Anstey, even if erroneous, detract in no sensible degree from the value of his labours in setting forth the undoubted effects of the law on other points. treat of the consequences of the relief acts as they affect the position of Roman Catholics, in respect to various civil and political rights, and particularly as they affect their charitable institutions. On all these points Mr. Anstey has, with great industry and good practical arrangement, collected the enactments and authorities, and has succeeded in producing a work of considerable practical interest and utility. Mr. Anstey treats at considerable length of the judicial notice taken under the existing state of the law, of Roman Catholic usages, and particularly discusses the question whether the courts would compel a Roman Catholic clergyman to give evidence on matter confided to him under the seal of confession. There can be no question that the Popish religion is now a lawful religion, and consequently that judicial notice will be taken of it and of its usages, speaking generally; but, notwith-binding, although solemnized in contravention of the standing the distinction which Mr. Anstey draws between the obligation imposed by the discipline of the Protestant Church on a clergyman of the Established Church, to silence as to the matters revealed to him in auricular confession, (pp. 78 and 79), and the obligation imposed by the Church of Rome on its priesthood, we confess that we do not think he succeeds in estabfishing the point that he seeks to establish, viz. that on legal principle, if not on authority, courts of justice will not compel a Roman Catholic priest to divulge matters communicated in confession. There is no argument of public policy, or of justice to the conscience of the witness, applying to the case of a Roman Catholic clergy- We have not left ourselves room to make any comman, which does not equally apply to that of a Protest-ments on the subsequent portions of the work, which ant clergyman. In either case, the witness receives the information confidentially in his character of priest, and would never have received it but for that character. It is no argument to say, that in the case of the Catholic priest (even assuming it to be the fact, which may be thought very doubtful), the obligation is more binding on the conscience of the witness, than in the case of the Protestant clergyman. The ground of compelling the evidence to be given in the case of the clergyman of the Established Church is, that the law will not suffer any bodies, ecclesiastical or otherwise, to override the law of the land by a private rule of conduct framed for the government of individual consciences; and if this ground is acted upon, as it undoubtedly is in regard to witnesses, members of a church whose doctrines form of themselves part of the law, a fortiori, must it be, we would contend, on legal principle, acted upon in reference to witnesses, members of a church not even absolutely lawful, but only lawful upon certain statutory conditions. We conceive, therefore, that with reference to the two rules stated by Mr. Anstey, as seeming to flow from the cases and the principles of the law, viz. that, first, "auricular confessions, made to a Roman-Catholic priest, are at least privileged to 'this extent, that the court will in no case whatever com'pel the confessor to disclose them; and, secondly, that, perhaps upon a sound conception of the peculiar policy of the institution, and of what is due to public decency and morality, the court will even forbid the question to 'be put to the confessor, against the consent of his pe'nitent." The first rule must be considered as at least doubtful, and the second as not at all to be relied on. Emperial Parliament. HOUSE OF LORDS. The Lord Chancellor, in moving the second reading of the Bankruptcy Bill, called the attention of the House at the same time to the other Bills which he had laid on the table for the Improvement of the Law of Lunacy and of County Courts. His Lordship said, with regard to the Bankruptcy Bill, he had adopted many of the parts of the Bill proposed by his noble and learned friend Lord Cottenham. With regard to those, founded as they were on the Report of the Commissioners appointed by Lord Cottenham, it would be better to leave them for the consideration of the committee. But he wished parmode of administering the Bankrupt Laws. That portion of ticularly to call their Lordships' attention to the proposed the system established by his noble and learned friend Lord Brougham, which consisted of the commissioners and official assignees, had given great and general satisfaction to the trading community. But it extended only to a circle of forty miles round London. He proposed to extend it, not by drawing a circle, but by applying it in certain counties, which would in HOUSE OF COMMONS. He pro effect extend it to a circle of 100 miles round London. He CAP. VII. [23rd March, 1842.] An Act to explain the Acts for the better Regulation of certain CAP. VIII. must necessarily be in a great measure like the details of every other Local Courts Bill, but content himself with stating the difference in principle between his Bill and those of his predecessors. He had thought it better to unite the three measures mentioned in one discussion, in order that their Lordships An Act to apply the Sum of eight Millions out of the Consomight dispose of them at once. ruptcy Bill be read a second time. He moved, that the Bank Lord Cottenham said, that as regarded the Bankruptcy Bill, it had been admitted by the Lord Chancellor, that his Bill had been copied in great part from his, (Lord Cottenham's). With regard to the County Courts Bill, he did not differ from the Lord Chancellor as to the extent of jurisdiction to be conferred on those Courts, or as to the modes in which the Courts were to transact the business. He objected, however, to his Bankruptcy Bill, because he left untouched the question of Insolvency, which his, Lord Cottenham's, had included. He objected also to the plan of Itinerant Commissioners in Lunacy, which he thought wholly impracticable. And as regarded the County Courts Bill, he thought the measure would be more complete by appointing a permanent resident Judge in the towns of principal importance, to be assisted in the per formance of their duties by the regular Circuit Judges for each district as proposed by the Bill. Lord Brougham said the chief difference between the Lord Chancellor's plan and that which he had in 1833 proposed, was that between a resident Judge and an ambulatory one. His Lordship argued that there was not any danger in having a permanent resident Judge in the present state of society and of the Bar; and alluded to the case of Scotland, where from time out of mind there had been in each county a permanent Local Judge, the sheriff depute, without any mischief or imputation of partiality. Lord Wynford agreed fully with the Lord Chancellor, and thought his plan would be a great benefit to the country. After a few words from Lord Campbell, who disapproved the measure, the Lord Chancellor replied, and the Bankruptcy Law Amendment Bill, the County Courts Bill, and the Lunacy Bill, went through a second reading, and were ordered to be committed on Friday. lidated Fund to the Service of the Year 1842. CAP. IX. [23rd March, 1842.] An Act to authorize the Advance of Money out of the Conso |