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How in a still earlier period of civilisation brawling was punished, may be read in Kennett's "Parochial Antiquities" (p. 233), where will be found a narrative of a fight in a church between the respective ladies of Richard L'Estrange and Sir John Trussel, on a difficulty arising out of "precedency of place," in the church of St. Dunstan's-in-the-East. The two husbands of course, and all their respective retinue, were quickly involved in the quarrel, and " some were killed and many wounded within the church." So the church was therefore suspended from divine offices, and Lord and Lady 'Strange did penance by walking barefooted from St. Paul's to St. Dunstan's, and by presenting to the altar gifts worth £15. Archbishop Chichely imposed this penalty; but could we now, in these days of threepenny 'Busses and Pickford's vans, tolerate such a procession through our streets?
Under 53 Geo. III. c. 27, imprisonment may also be inflicted for brawling with smiting; but the real punishment in all these cases is the costs, which, as the proceeding is pro salute animæ, no offender would object to pay. If, however, any rash, ill-advised incumbent or churchwarden put this law into operation, we are assured by those practically acquainted with this piece of civilized law, that he generally spends his own money (never less than £100) in costs, and gets nothing from the wicked brawler except likely enough an assurance, more or less satisfactory, that the offender has spent all that he had in his defence, and therefore the promoter finds it necessary to pay his own costs and clear the account.
The ecclesiastical courts then are, in their obsolete forms and practical injustice, worse than useless. The rich or foolish may appeal to them in revenge, or in obedience to a strong party feeling; but they do not accomplish the legitimate object of legal tribunals.
The "stone altar case" cost thousands of pounds, and established no principle of any value whatever. Then, again, the Knightsbridge church case occupied learned doctors and able proctors most profitably. And, no doubt, if it be wrong. in a priest to put on sea-green, or tea-green, or pea-green gar
ments, their legality can be investigated in like manner, and the offender be made to pay not only his tailor's but two proctors' bills, and court fees; but at what costs? and with what result? Again, if a lusty butcher's boy, or draper's apprentice, or Calvinistic costermonger, bellow during service-time, and obstruct the congregation, he can be prosecuted for brawling if one can find a person foolish enough to "promote" such a promote" such a proceeding. Practically speaking, Bishop Tait could not cause to be suspended, "ab ingressu ecclesiæ," the Houndsditch costermonger, who asserts on Sundays at church his Protestant principles by brawling obscenely at an obnoxious curate, or by drugging big dogs and turning them into the church. Again, the ecclesiastical law could be set in operation against the youth who, when brought before the magistrate, told him that he had gone, and should go to the church of St. George's-in-the-East, because he detested the service; and who, being in that frame of mind, of course got to blows with a high-church cheesemonger. But if either of these belligerents were excommunicated, it would be the making of his fortune? He would be retained at high wages at some neighbouring tavern as a curiosity, and form a great attraction; or perhaps might give his name to the waterproof cape of the season, or be immortalized in a new style of tobacco-pipe.
The statute we have just referred to, was the one alluded to in a well-known case (which we may be pardoned for mentioning here) "as a half-obsolete statute of one of the Edwards." In the case in question, it seems the affidavits were very numerous-eight-and-twenty in number-by which it appeared that "at a certain vestry-meeting in the parish of -, the party cited had made use of and applied to the prosecutor the words You be blowed!"" and again, notwithstanding remonstrance, and under circumstances which nothing could extenuate, again repeated the expression, 'You be blowed!' and furthermore requested to know whether the prosecutor 'wanted any thing for himself,' adding, that if he did, he the cited individual was the man to give it him,' and at the same time using other heinous 1 It is mentioned that he was a ginger-beer seller by trade. VOL. VIII. NO. XVI.
and sinful expressions, wherefore, for the soul's health of the brawler, the prosecutor prayed excommunication against him.” Eventually was passed "the awful sentence of excommunication for a fortnight, and payment of costs of the suit." Application was then made to the court upon behalf of the unfortunate man thus excommunicated, "That they'd be good enough to take off the costs, and excommunicate him for the term of his natural life instead." This application was indignantly refused.--(Bumple v. Sludberry, Dickens, 52.)
We submit to our readers that the present state of the law exhibits such frailty and imbecility that it should be forthwith amended. First, the Anglican church being Episcopal, the bishop should have primarily power to put an end to buffoonery in a church, and to suspend clerical mountebanks, and generally to take notice of all irregularities in churches, with, of course, a right of appeal by those whom he visits with the terrors of his mitre. There should be such a court of appeal that a rector, vicar, or curate, might safely apply to it without being ruined, and a bishop might appear therein without being worried to death. It is a mockery to point to the present ecclesiastical courts as the proper tribunal for the determination of such disputes as those of St. George-in-the-East. And, secondly, we demand that real redress in the police courts should be afforded. If the magistrate can now legally escape adjudicating on questions of riot in churches brought before him, the law should be so altered as to render it obligatory on him to hear and determine such matters when brought before him.
ART. VIII.—HIGH COURT OF ADMIRALTY.
1. The New Practice of the High Court of Admiralty in England; with the Rules of 1859, Collection of Forms, and Bills of Costs. .By HENRY CHARLES COOTE, Proctor of the Court. London: Butterworths, 1860.
2. Two Lectures on the Jurisdiction and Practice of the High Court of Admiralty of England, delivered before the Incorporated Law Society. By JOHN MORRIS, Esq., a Member of the Society. London: Stevens & Norton, 1860.
'HE fortunes of the Court of Admiralty have been curious
and strange. For many centuries that court struggled for mere life against the beating waves of Common Law and Chancery. In our own times, however, legal favour has set in towards it; the tide has turned, and the adverse wind has hushed. Even bos locutus in Etruria-popular lecturers resound its praises, and advocate an extension of its powers and jurisdiction.
In this, though we think there is justice, we must at the same time declare that the honours which the Admiralty now receives have only really been deserved in late years; for the court appears to have been insignificant in Lord Stowell's time, to have been worse under Sir Christopher Robinson, and no better under Sir John Nichol. Upon this subject we will use the words of Mr. Coote, in the preface to his "New Practice of the Court of Admiralty:"
"When some half a century ago the court came to be presided over by Lord Stowell, such was the paucity of its legal business, that it could be said to afford that great legal luminary little else than an occasional morning's occupation. The tenuity of interest which attached also to that business was so undeniable, that the circumstances resolved itself to the mind of his lordship
as a weighty objection to the publication of the reports of the proceedings of the court, when publication was first proposed by the members of his bar. In his lordship's own words, 'he feared lest the reports should expose the nakedness of the land.' But small as was the amount of business under Lord Stowell, it became even less under his immediate successors, and the court seemed fast sinking into a state of only something more than mere vacuity.
"At this critical juncture Dr. Lushington accepted the important office of Judge in Admiralty. Under his energetic presidency the long dormant court instantly underwent a change so complete in itself, and so extensive in its results, that it can scarcely be described otherwise than as a fresh creation of law. The confidence of the public awoke as from a dream, and a corresponding amount of business at once poured into this (comparatively speaking) new tribunal. Dr. Lushington was thus enabled in a few years to frame and establish a system of jurisprudence for his court, not less great in idea, yet at the same time more varied in form, and more grasping in comprehension, than that which his gifted predecessor, Lord Stowell, had in other times shaped out for the Court of Prize.
"To form the jurisprudence of a court exercising so important a jurisdiction as that of the Admiralty, would have seemed enough even for the advanced intellect and distinguished learning of Dr. Lushington; but something more, though less in its degree, was required of him. The defective character of the procedure of the court urgently called for reform. On the appointment to the Registrarship in Admiralty of H. C. Rothery, Esq., whose acknowledged ability indicated him as a fit associate in such an undertaking, that reform was instantly initiated, and was wholesomely and unsparingly carried out. The reform which was initiated in 1855 has now finally been completed by the Rules of 1859."
For its present eminence it is therefore clear that the court is entirely indebted to Dr. Lushington. The Rules of 1855, which were a prelibation of future and further reforms, appear