Page images
PDF
EPUB
[ocr errors]

towards the prisoner; and a curious and unexpected piece of information was also presented on the trial, which the system of procedure in use in Prussia allowed them to take into consider'tion. It appeared, on the sittings of the court in June, 1857, that the brother of Max, who had emigrated to America (the Duke Louis, of whom we spoke at the outset), had been in Europe, and actually in Vienna in 1848, about the time the princess was murdered, and knew something about the matter. He had however returned to America, and accordingly he could only be applied to by letter. The result of his answer also by letter, judicially attested, was, that whilst in Vienna he had received a visit from a man making inquiries after his brother Max, who was away. The stranger appeared very anxious and nervous, and spoke of the murder. The duke replied that the facts must soon be disclosed. The visiter said, “I don't think it," and then demanded some money, which he said he was in great want of, and which he was sure Max would repay the duke. The man's behaviour was very suspicious, and the duke declared he should have given him into custody on the spot, but, his attendant being out, he had no one to call upon. He fixed therefore with the man to call the next morning, but he did not come again. The duke traced a likeness between this suspicious visiter and a photograph of Franke, which was sent to him for the purpose of proving identification. This piece of evidence, though of a very singular character, was not conclusive.

In the mean time the court received a letter, purporting to be from one Koschielski, in England, and which represented that the writer had been living with Prince Max in 1847 and 1848, and bore a most curious resemblance to Franke, so that they were often mistaken for each other; further, that it was he, Koschielski, who bad procured the weapon from Gleiwitz, and the writer endeavoured to protect Franke at the expense of Obst. But there was every ground to believe that the letter was a fraudulent attempt to mislead the court, designed by the prisoner and his sister-in-law, who had opportunity (as it turned out) of correspondence, and nothing further came of the communication.

a

a

These trials had now lasted “on and off” nine years. So far as the court was concerned with Franke, it now terminated by a general verdict of guilty, and he was sentenced to death ; nevertheless, this sentence was till very lately not carried outtwelvemonth ago, at least, he was still in prison awaiting the King's warrant. Why the wretched man is thus reserved is not known, although the not very probable suggestion has been offered to account for it, that Flora Tschaskalek has signified her intention of returning home, and the authorities expect to procure valuable aid to justice from that source. The reader will hence perceive, that although, in Germany, the field whence evidence is gathered is very extensive and varied, the channel through which justice flows seems not a little liable to be choked.

ART. III.REFORM IN CHURCH DISCIPLINE.

SOME squeamish reformers in and out of parliament havo

recently, with the microscopic eye of their class, made the distressing discovery that the ecclesiastical courts are still in existence. They are so; but, inasmuch as their existence is as harmless as it is venerable, we ourselves do not feel any interest, with one exception, in the general question of--what is to be done with them?

We leave the ecclesiastical courts to settle the pew battles which convulse our rural communities—deorum injurice diis cura —we leave them to adjudicate on the rare actions for church rates; we leave them their synodals, their procurations, and all else which belongs to them in a harmless mediæval way. For no reasoning can reduce such insignificant matters under the sway of reasonable and enlightened civil law, and whilst they amuse some, they injure nobody.

A far different thing, however, is the jurisdiction of the Arches Court in matters of church discipline, or the correction of clerks ;

a

a jurisdiction involving the freehold rights of the accused, and their social status in the world. Invested with this grave and important jurisdiction, but isolated from the national law and judicature, the Arches Court stands alone-a gaunt relic of a former world, in the midst of general and harmonious cultivation.

This jurisdiction itself, however, is but of modern date, as appertaining to the Court of Arches. It was given to that court by the 3 & 4 Vict., c. 86. By that act the local bishop, for the first time in church history, is empowered to issue a commission, directed to a certain number of persons, to inquire into the ground of any charge or report that may be made respecting the conduct of any clergyman of the united church offending within his diocese.. These commissioners hear evidence upon the charge, and report to the bishop whether or not there be sufficient prima facie grounds for instituting further proceedings. When this has been done, the accused may be articled against before the bishop, who from this time becomes his judge, and hears evidence, and gives sentence, assisted by certain assessors. Or, if the bishop does not feel inclined to this responsible exercise of power, he may send up the case to the Arches Court to hear and determine, and this course he generally adopts.

We must observe in the first place upon this law, that the canon law never gave to the bishop, even in those times when he was a better canonist than now, this vast power. Ayliffe says (Parergon, p. 161)—"If the bishop will not choose a chancellor, the metropolitan may, and ought to do it; for the bishop himself, according to the common law,* cannot be a judge in his own consistory but in some particular cases.' We will pass this over, however, and proceed to what is more important—the principle of this strange piece of legislation. The one great thing done by the act is this; it has preserved the principle for which Hildebrand thundered from the Vatican, and for which Becket defied the laws of his country. It maintains the separation of the clergy from their national tribunals. It

By the expression common law, is meant the canon or universal law of the church, commune jus.

[ocr errors]

*

a

[ocr errors]

still, though in more modest tones, asserts the right of the clergy sub lege Romanâ vivere, and in that it still vindicates their pretension to a personal law. The act therefore is based upon the amiable weakness of keeping up an old institution, ne quid scilicet oculorum consuetudini deperiret. In this, of course, there is no rationale, and it only remains for us to state views which, in our opinion, seriously militate against the advisability of a longer continuance of such a law.

In the first place, it is not sufficiently clear to us that a clergyman should be punished for doing an act unconnected with his vocation, for which act a layman would be neither punished, reproved, nor maligned. Among the ancients, the vestal and the hierophant only were required to be pure. All other priests and priestesses enjoyed the freedom, and sometimes the laxities, of the outer world.

Bonus et face dignus Arcanâ, qualem Cereris volt esse sacerdos.But our opinion matters little ; for the Christian world is in accord that a teacher of morality, provided he be paid by them for his teachings, shall himself be moral.

Upon this principle the church and the canon law have combined to frame a goodly catalogue of the excesses and indiscretions falling to the lot of the irregular portion of the clergy. We have looked up this curious subject; and we propose to lay before our readers a list of the offences, the adjudication of which the Arches Court arrogates to itself. And, when we have done so, we will consider whether the matters are of such a nature and quality as to require and justify a separate tribunal.

For our syntagma of clerical crimes and excesses (as they are technically called), we are indebted to Mr. Coote's Ecclesiastical Practice. We borrow from, him because he is the only writer who has tabulated them.

These crimes and excesses are as follows:

a

Profligate life and conversation, adultery, fornication, incontinence, and the crimen infandum.

a

Drunkenness (habitual), and accompanied by profaneness, obscenity of language, &c.

The like-not aggravated by other circumstances.
Brawling in a church or churchyard (by words only).

Smiting or laying violent hands on any person in a church or churchyard.

Advisedly maintaining or affirming doctrine directly contrary or repugnant to the articles of religion as by law established, and against the statute 13 Elizabeth, c. 12 (an act for the ministers of the church to be of sound religion).

Neglect of duty.
Refusal to bury the body or baptize the child of a parishioner.

Irregularities in reading the Holy Scriptures, and varying the service from the prescribed form.

Irregularity and indecorum in the performance of divine offices.

Publishing the banns of marriage of persons not being parishioners, and marrying such persons.

Non-residence.
Officiating out of his diocese.
Performing divine service without a licence from the ordinary.
The like-by a licence surreptitiously obtained.
The like-after revocation of a licence by the ordinary.

Evil practices in obtaining orders, institution, &c., by procuring another to undergo a vicarious examination, &c.

Simony.
For disrespectful and disobedient conduct towards the ordinary.
Plurality.

a

Now, what is there in the nature of these offences to disqualify any one of the superior courts from entertaining a prosecutor's complaint upon such a subject, and from adjudicating satisfactorily and justly upon it? What is there in these offences to dishabilitate a jury from giving a fair and reasonable verdict upon them? What is there in them which should exact that the accused should be denied the benefit of a jury of his countrymen ?

We unhesitatingly contend, that any one of the accusations

« PreviousContinue »