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 Front Page arrow Titles (by Subject) arrow 16.: PERSECUTION FOR RELIGIOUS SCRUPLES MORNING CHRONICLE, 26 AUG., 1823, P. 3 - The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I

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Subject Area: Political Theory
Collection: The Collected Works of John Stuart Mill

16.: PERSECUTION FOR RELIGIOUS SCRUPLES MORNING CHRONICLE, 26 AUG., 1823, P. 3 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I [1822]

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The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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16.

PERSECUTION FOR RELIGIOUS SCRUPLES

MORNING CHRONICLE, 26 AUG., 1823, P. 3

Mill’s third discussion of oaths (see esp. No. 6), this letter was occasioned by “Imposition of a Fine for Refusing to Take a Judicial Oath,” Morning Chronicle, 22 Aug., 1823, p. 4. It reported the fining on 16 Aug. of Connell, a pawnbroker, by Richard Pennefather (1773-1859), K.C., Chief Baron of the Irish Court of Exchequer, in the Cork City Criminal Court on 16 Aug., 1823. Headed as title and subheaded “To the Editor of the Morning Chronicle,” the item is described in Mill’s bibliography as “A letter on the conduct of an Irish judge in fining a witness for refusing to take an oath, in the Chronicle of 26th August 1823, signed the Censor of the Judges”

(MacMinn, p. 3).

sir,—

I observed in your Paper of Friday last, a conspicuous instance of the mischiefs of judicial oaths. These mischiefs you have frequently adverted to, but I question whether so glaring an instance of them ever yet presented itself to your notice.

A man was called to give evidence at a Court of Justice in Ireland on a cause of no extraordinary interest. He declined taking an oath on the ground of religious scruples: upon which Mr. Baron Pennyfather fined him 100l.

Either this man was conscientiously averse to taking an oath, or he wished, under that pretext, to evade the necessity of giving testimony.

On the former supposition, every discerning lover of justice must lament that, by the imposition of a ceremony which (as we see in the case of Custom-house and University oaths)1 adds no security whatever, the testimony of a highly conscientious witness should have been excluded.

This supposition appears the most probable, as persons appeared to certify that the witness was known to have these scruples. But even if he really wished, under this pretence, to frustrate the ends of justice, the consequence is not less deplorable. If he had avowed his determination not to give evidence, he would have incurred the infamy which so pernicious a resolution deserves. By covering the wickedness of his intention under the cloak of religion, he screened himself from well merited disgrace.

If there were nothing more, therefore, than the exclusion of his evidence, this were surely enough: but when to the exclusion we add the fine, it ought to inspire every man with serious reflections. It will stand upon record that in the nineteenth century, a fine of 100l. was imposed upon a man because his religious opinions differed from those of Mr. Baron Pennyfather. I blame not the Judge, but the law, for excluding the witness. The glory, however, of the fine, belongs wholly to the Judge, who, instead of labouring to effect the amendment of a law which excludes the conscientious while it lets in the unprincipled witness, took upon himself to imitate the Court of Ecclesiastical Commission, and punish Heresy with a fine of 100l.2

The lawyers may quibble—they may say that he was fined, not for heresy, but for contempt of Court. Contempt of Court is a mere cant phrase, and, in most instances, a phrase employed for the worst of purposes. On this principle, the Judges under Charles II might be justified, who repeatedly fined the Jury because they would not condemn those whom it suited the “Court” and their employers to oppress.3 All the quirks with which the English law, more than any other, abounds, will not alter the fact, that a man has been fined one hundred pounds for his religious scruples; not for refusing to give evidence—he did not refuse this. He never hesitated to give a solemn affirmation of all which he knew; he scrupled only the oath. The Judge had not power to dispense with the ceremony, but he was under no obligation to impose on a pawnbroker, not likely to be in very opulent circumstances, a fine which may amount to the ruin of all his prospects in life.

When I consider that the class to whom Mr. Baron Pennyfather belongs, are continually holding up the importance of encouraging the spirit of religion among the people, continually lamenting the little influence which religious motives exert over human conduct, I cannot help thinking that they should be the last to impose a ruinous fine upon a man on account of the peculiar strength of his religious principles, and thus hold out encouragement to the disregard of those principles.

In discussing this subject, I have avoided considering the question whether oaths are or are not consistent with Christianity—for even supposing the witness to have been in error, a man is not to be fined 100l. for being in error.

The administration of justice in Ireland has so long been a scene of all which is unjust and oppressive, that an occurrence, which, if performed at our doors, would have excited attention, may, perhaps, be passed over, when happening amid so many others still more atrocious than itself. But the law is the same in England as in Ireland. In both countries the lawyers are equally ignorant and equally prejudiced; and what has happened in the County of Cork, may, ere long, perhaps, be imitated in that of Middlesex.

The Censor of the Judges

[1 ]See No. 6.

[2 ]The Court of High Commission, created by 1 Elizabeth I, c. 1 (1558), was given this power in ecclesiastical matters; it had been abolished by 16 Charles I, c. 11 (1640).

[3 ]The practice of judges’ fining juries developed under the Star Chamber and spread to other courts; it was stopped in 1670 in the case of Bushell (see A Complete Collection of State Trials, ed. Thomas Bayly Howell, 34 vols. [London: Longman, et al., 1809-28], Vol. VI, cols. 999-1026).