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Famous English Canon Lawyers: IX Stephen Lushington, D.C.L. († 1873)

Published online by Cambridge University Press:  31 July 2008

J. H. Baker
J. H. Baker
Affiliation:
Professor of English Legal History, Cambridge
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In the first half of the nineteenth century, Doctors' Commons enjoyed a final flowering before its eradication in the 1860s, and its leading members once again achieved a reputation for scholarship and intellectual distinction. Lord Eldon's brother, William Scott (1745–1836), Lord Stowell, undoubtedly bears a considerable part of the credit for raising the public standing of the Civilian profession. Scott was a remarkable man, and his career was not a conventional one. Fellow and Tutor of University College, Oxford, at the age of nineteen—in the very year that his neighbour Blackstone across the High became Vinerian Professor—he was called to the Bar by the Middle Temple the year after taking his D.C.L., and by 1794 was a bencher of his Inn and a distinguished ecclesiastical judge. Yet not only was Dr Scott a Civilian and a barrister, he also taught for several years at Oxford as Reader in Ancient History, and served as a member of Parliament. In law and politics, Stowell shared the conservative instincts of his brother. While professing to value the principle of religious toleration, he was strenuously opposed to Roman Catholic emancipation in Ireland, which he felt would be ‘setting fire to the country’, while in the Commons in 1815 he urged that sectarians should not be excused from contributing to the maintenance of the established Church. In a letter to Joseph Story in 1820 he explained his opposition to all manner of reform, including moderate reform; the latter he considered particularly dangerous, because a modest reform was easily made and then the violent reformers would rush into the breach.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 4 , Issue 19 , July 1996 , pp. 556 - 565
Copyright
Copyright © Ecclesiastical Law Society 1996

References

1 Quoted in Bourguignon, H. J.. Sir William Scott, Lord Stowell Judge of the High Court of Admiralty 1798–1828 (Cambridge, 1987). at p. 52CrossRefGoogle Scholar. The information about Scott is taken from Bourguignon. and from the article of 1897 in 51 DAB 108 by J. A. Hamilton (later Lord Summer).

2 Rush, R., Residence at the Court of London: comprising incidents, official and personal, from 1819 to 1825 (1845). vol. I. p. 15.Google Scholar

3 Ibid., pp. 15–16.

4 Statesmen of the Time of George III (1872 ed.). vol. IV. p.67

5 Roscoe, E. S.. Lord Stowell: his life and the development of English prize law (1916)Google Scholar; Bourguignon. Lord Stowell. Judge of the High Court of Admiralty (above).

6 Dalrymple v. Dalrymple (1811) 2 Hag. Con. 54.

7 Gilbert v. Buzzard (1821) 3 Phillim. 335, 2 Hag. Con. 333.

8 Robinson's reports, however, were confined to Admiralty cases.

9 The following essay on Dr Lushington is based almost entirely on Waddams, S. M., Law, Politics and the Church of England: the career of Stephen Lushington 1782–1873 (Cambridge, 1992)Google Scholar, to which the present writer is heavily indebted and to which the reader is referred for further and better particulars. Professor Waddams is now engaged on a general history of the ecclesiastical courts in the 19th century.

10 Squibb, G. D.. Doctors' Commons (1972), 198Google Scholar; DNB. The name Stephen was widely used in the family. There was another contemporary M.P. called Stephen Lushington (d. 1868), who was given an honorary D.C.L. (Oxon.) in 1839, and another Sir Stephen Lushington (d. 1877), who commanded the naval brigade at Sevastopol and became an admiral: DNB.

11 This was one of the reasons for his support of the founding of London University (i.e. what is now University College London). He was a proprietor, and member of the Council.

12 They had both acted as counsel for Queen Caroline, and collaborated in the founding of London University and the Society for the Diffusion of Useful Knowledge.

13 Report of the Commission appointed to enquire into the Practice and Jurisdiction of the Ecclesiastical Courts in England and Wales.

14 The practice whereby Delegates were appointed to hear ecclesiastical appeals by commission from the Chancery had been introduced in 1533 to replace appeals to the pope and papal delegates: Submission of the Clergy Act 1533 (25 Hen. VIII, c. 19).

15 See Duncan, G. I. O., The High Court of Delegates (Cambridge, 1971). pp. 28–31.Google Scholar

16 Anon., ‘The Admiralty and Ecclesiastical Courts’ (1834) 11 Law Mag. 447, 448.Google Scholar

17 Ibid., p. 452.

18 The written English canons required only the LL.B., and the doctorate was still not required for practice in the province of York.

19 ‘The Admiralty and Ecclesiastical Courts’ (1834), at p. 454.Google Scholar

20 Waddams, pp. 19–20 (punctuation modernised).

21 Ibid., p. 20. The reference to war is to the lucrative prize jurisdiction, which was dormant in times of peace, but had provided some buoyancy during the Napoleonic wars when Lushington was first admitted to practice.

22 Speech in the House of Commons, quoted in Waddams. p. 251.

23 Ecclesiastical Courts Act 1840 (3 & 4 Vict., c. 93): Waddams, pp. 254–256.

24 Evans v. Evans (1790) 1 Hag. Con. 35; Harris v. Harris (1813) 2 Phillim. 111; 2 Hag. Con. 148; followed by Dr Lushington in the Consistory Court in Kenrick v. Kenrick (1831) 4 Hag. Ecc. 114, 129; Neeld v. Neeld (1831) ibid. 263; Evans v. Evans (1843) 1 Notes of Cas. 570.

25 Dysart v. Dysart (1844) 1 Rob. Ecc. 106. Lushington's judgment was reversed (on the facts) by the Court of Arches: ibid., p. 470.

26 Ray v Sherwood (1836) 1 Curt. 173. 193.

27 E.g., Croker v Marquess of Hertford (1844) 4 Moo. PCC 339; Hudson v. Parker (1844) 1 Rob. Ecc. 14; Waddams, pp. 189–193.

28 Not to be confused with the more staid Henry Philpott. bishop of Worcester 1860–90. formerly Master of St Catharine's College. Cambridge.

29 Waddams. pp. 271–280.

30 Gorham v. Bishop of Exeter (1849) 2 Rob. Eccl. 1.

31 Gorham v. Bishop of Exeter (1850) Br. & Fr. 64: more fully reported in Moore, E. F. ed., The Case of Gorham against the Bishop of Exeter (1852).Google Scholar

32 Lushington had in 1847 drafted a bill for adding bishops and even professors of divinity to the Judicial Committee: Waddams. p. 279.

33 Waddams. pp. 280–288.

34 Ditcher v. Denison (1858) 11 Moo. PCC 324. The decision of the Court of Arches is reported in Deane 334.

35 Passage quoted in Waddams. pp. 286–287.

36 Waddams. pp. 288–297.

37 Westerton v. Liddell (1855), reported in a separate volume edited by A. F. Bayford: (1857) Br. & Fr 117 (P.C.). Note also Flamank v. Simpson (1866) L.R. 1 A & E 276 {prosecution for using candles on the communion table when not needed for illumination).

38 Cf. Waddams. p. 293.

39 Waddams. pp. 297–302.

40 In R v. Hicklin (1868) L.R. 3 Q.B. 360. some language in a confessional manual was actually held to be criminally obscene.

41 Poole v. Bishop of London (1861) 14 Moo. PCC 262. The decision at first instance is reported in The Times (references in Waddams).

42 Waddams. pp. 310–346.

43 I.e. setting forth doctrines contrary to the doctrines of the Church of England contained in the Articles of Religion, the Book of Common Prayer, and the Formularies.

44 Williams v. Bishop of Solisbury (1864) 2 Moo. PCC NS 375. The decision at first instance is reported sub nom Bishop of Salisbury v. Williams (1862) 1 New Rep. 196 (not in the English Reports), and in a separate volume printed in 1862.

45 Atlay, J. B.. The Victorian Chancellors (1908). vol. II. p. 264, quoted in Waddams. p. 311.Google Scholar

46 The Military Association was formed in 1798 to protect the English Civilians against Napoleon.