The Reverend Lewis B... v. The Right Reverend C...

BOWERBANK U. JAMAICA (BISHOP OF) [1838-391 11 MOORE,

E4491 ON APPEAL FROM A S E N T ~ N C E OF THE LORD BISHOP O F J A M ~ ~ C A .

The Reverend LEWIS BOWERBBNK,-B~~e~lant; The Right Reverend CHRISTO-

PHER, Lord Bishop of Jamaica,--Respondent * [NOV. 29, Dec. 14, 1838 ;

Feb. 22, 18391.

By the letters patent erecting the See of Jamaica, the Bishop is empowered to

exercise spiritual and ecclesiastical jurisdiction, and, among other things,

to punish rectors, etc., according to the laws and canons of the Church of

England.

The rector of a parish within the aiocese of Jamaica, having, in the opinion of

the Bishop, transgressed the provisions of the Clergy Act of Jamaica

[4 Will. iv. c. 311, in declining to enter a marriage on the registry of his

parish, solemnized in a place which was s u p p ~ s ~ not to be within the parish,

was cited by the Bishop, and, being required, made an entry of the marriage,

whereupon the Bishop, without having exhibited articles or a libel, passed

sentence of suspension for such previous refusal, and directed the same to be

published. Held on appeal by the Judicial Committee, that such proceedings

were wholly irregular, and the sentence reversed with costs [2 Moo. P.C.

4701.

Quaere. Whether on appeal from an ecclesiastical sentence of the Bishop of

Jamaica, the Appellant ought not to pray a reference to the Judicial Com-

mittee, instead of a Commission of Delegates [2 Moo. P.C. 466, 4711.

By letters patent bearing date the 24th of July 1824, King Georgo the Fourth

erected, ordained, and constituted the Island of Jamaica, the Bahama Islands, and

the settlements in the Bay of Honduras, and their respective dependencies, to be

a Bishop's See, and to be called from thenceforth the Bishoprick of Jamaica. And

his Majesty did further by the same letters patent, name and appoint ~ r i s t o p h e r

Lipscomb, R.D., Bishop of the said See, and did thereby give and grant to him and

his successors, Bishops of Jamaica, amongst other things, full power and authority

by [&0] himself or themselves, or by his or their sufficient Commissary or Com-

missaries to be by him or them substituted and appointed, to exercise jurisdiction,

spiritual and e~lesiastical, in and throu~hout the said see and diocese', and all

and several the above islands and settleinents, according to the lams and canons

of the Church of England which are lawfully made and received in England, in the

several causes and matters thereafter expressed and specified ; and also full power

and authority to give institution to benefices and grant licenses to curates, and to

visit all rectors, curates, ministers and incumbents of all the churches within the

said diocese $herein Divine service should be celebrated according to the Rites

and Liturgy of the Church of England, and all priests and deacons in holy orders

of the Church of England resident in the said diocese; with all and all nianner of

jurisdiction, power, and coercion ~ c l e s i ~ t i c a l that might be requisite in the pre-

mises; as also to call before him, or his Comn~~ssary or Commissaries, a t suck com-

petent days, hours, and places whatsoever, when and as often a8 to him, or them,

should seem meet and ccmvenient, the aforesaid rectors, curates, ministers, incum-

bents, priests, or deacons in holy orders of the Church of England, or any of them ;

arid to inquire by witnesses, to be sworn in due form of law by him, or his Corn-

missary or Commissaries, and by a11 other lawful ways and means by which the

same might by law be best and most effectually done, as well concerning their

morals as their behaviour in their said offices and stations respectively; as also to

administer all such oaths as were accustomed to be taken in Ecclesiastical Courts,

and [461] to punish and corrmb the aforesaid rectors, curates, ministers, incum-

bents, priests, and deacons in holy ordere of the Church of England, according to

their demerits, whether by removal, deprivation, suspension, or other such ecclesi-

* Present : Lord Brougharn, Mr. Baron Parke, Mr. Justice Ilosanquet, the Right

Hon. Sir Herbert Jenner, and the Right Hon. Dr. Lushington.

1077

astical censure or correction as they might be liable to according to the laws and

canons ecclesiastical as aforesaid.

His Xajesty did, by the above letters patent, also ordain as follows:-“ Never-

theless We will and do by these presents declare and ordain, that it shall and may

be lawful for any person or persons, against whom any judgn~ent, decrw, or sen-

tence shall be proI~ounced by any Con~missary or CoKnmissaries of the said Bishop

or his successors, to demand a r~exarnination and review of such judgment, sen-

tence, or decree hefore the Bishop himself or his successors, who, upon such demand

made, shalI take cognizance thereof, a;ad shall have full power and authority to

aSrm, reverse, or alter the said j u d g m ~ n ~ sentence, or decree of his or their Com-

missary or C o m m ~ s s a r ~ ~ , after having fully and maturely re-examined and re-

viewed the same; and if any party or parties shall conceive himself or themselves

aggrieved by any judgment, decree, or sentence p r o ~ o u ~ c e d by the said Bishop or

his successors, either in case of any such revision, or in any cause originally insti-

tuted before such Bishop or his successors, i t shall be lawful for such party or

parties so conceiving himself OT themselves t o be aggrieved, to appeal from such

sentence to us, our heirs, or successors in our High Court of Chancery of Great

Britain, so as notice of such appeal be given CO the said Hishop within fifteen days

after such sente~ce shall have been pro~oui~ced, and good and s u ~ c i e n ~ security in

the penalty of 22100 given by the ~ p p e l ~ a ~ ~ t or Appe~lants [462’j to pay such costs

as shall be awarded, in case the sentence app0aled from shall bs affirmed by Com-

missioners to be named by us, our heirs, or successors, under our Great Seal of

our United Kingdom of Great Britain and Ireland, for the hearing and de ter I~~i r~ i r~g

the same. And We will that such Co~r~~iss ioners shall have power finally to decide

and deter~iine the said Appeal in as ample m a n ~ e r and form as the Commissio~iers

appointed and assigned under our Great, Seal of our United Kingdom of Great

Britain and Ireland, by virtue of the ~ t a t u ~ made in the t~enty-fifth year of the

reign of King Henry the Eighth, i n t ~ t ~ i l ~ , ‘ An Act for t.he s u b n ~ ~ s s i o ~ of the Clergy

and restraint of Appeals,’ can or may hear and d e ~ n ~ t ~ ~ e l y d e ~ r m i ~ e Appeals

from any of the Courts of the Archbishop of our realm of England.”

Upon the arrival in Jamaica of the Bishop, an Act of the legislature of that,

island was passed, (6 Geo. fV., c. 17,) intituled, ” An Act to consolidate and amend

the several Laws relating to the Clergy of this Island, and to invest the Bishop of

Jamaica with ~cc~es i a s t i ca~ J u r ~ s d i c t ~ o ~ . ” This Act, after setting out at length

the above letters patent, a ~ o n ~ ~ t other tbings enacted,-(( That from and after the

passing of that Act, all laws, ordinaiices, and c a n o ~ ~ s e~clesiastical as were then

used and in force in that part of the United Kingdom of Great Britain and Ireland

called England, so far as the same relate to the due ordering and ecclesiastical

regimen of and jurisdiction over the clergy therein, and all rules of proceeding for

carrying the same into effect, should be esteemed, acce~ted, and taken to be in

fu l l farce and virtue within that island in respect of the clergy resident within

the same; and that all and every the procwses an’d p r o c e e d i ~ s ~ orders, [&3] sen-

tences, adjudications, and decrees of the Right Reverend Father in God Christopl~er,

Bishop of Jamaica, and his successors, and of all and every other person and

persons already appointed by virtue of the said letters patent, should have the

same authority, force, and eBeet in all respects, and s h o u ~ ~ be observed, pract~sed,

obeyed, performed, enforced, and carried into execution by all and every the eame

ways and means, and in the same manner, to all intents and purposes, as the pro-

cesses and proce~ings , orders, sentences, a d j u d ~ c a t ~ o ~ s , and decrees of the Ecclesi-

astical Courts of that part of the said United K~ngdom called England were ob-

served, practised, obeyed, performed, enforced, and carried into execution in the

said part of the said United Kingdom which is called England, in, towards, and

against the clergy within the same.”

1830, but was continued by an Act passed for that purpose; and by a further Act of

the Legislature of the Island, 4 Win. IV., c. 31, entitled, “ An Act to consolidate and

amend the laws relating to the clergy of this Island, and to invest. the Bishop of

Jamaica with ecclesiastical jurisdiction,’” whereb~ the former Act, 6 Geo. IV,, c. 17,

was re-enacted.

The consolidated Act above mentioned, called the Clergy Act of Jamaica,

a ~ o n g s t various other provisions, required (see. 12) that all banns of marriage

should be pub~ished in an audi~Ie manner in the parish church, or in one of the

1078

The Act was limited to the 31st of December I

BOWERBANK 'U. JAMAICA (BISHOP OF) [1838-391 11 WOORE, 464

consecrated or other chapels duly licensed by the Bishop for the performance of

Divine service, of or belonging to such parish wherein the persons to be married

should dwell, according to the form of words prescribed by the rubric prefixed to

the office of matrimony, in the Book of Common Prayer, upon three Sundays pre-

ceding the soleni-[~5~]-nization of marriage, during the time of morrting service.

It prohibited (sec. 14) any Minister from presuming to marry any person whose

banns had not been duly published according to the provisions of the Act, or had i~

license from the governor, or person exercising the functions of governor, authorising

him thereunto, under a penalty.

And by sec. 46, it further required that registers of public and private baptisms,

marriages, and burials of free persons, solemnized according to the rites of the

Established Church, within the several parishes of the Island, should be made and

kept by the Rector or officiating Minister of every parish for the time being, in well

bound books, to be provided at the expense of the respective parishes, in which

every such Rector or officiating Minister should, as soon as possible after the

solemnization of every baptism (whether private or public), or marriage, or burial,

record and enter, in a fair and legible hand, the several particulars described in the

schedules thereunto annexed, and sign the same; and in no case, unless prevented

by sickness, or other unavoidable impediments, later than within fourteen dapy

after any such ceremony should have taken place.

It also (sec. 51) required that the Curate and every other officiating Ninister of

each parish should, at the end of every three months in each year, during the COII-

tinuance of the Act, render a return, duly certified under his hand, to the Rector of

the parish, of all baptisms, marriages, and burials which should have been respectively

performed by him or them during the three preceding months, and such returns

should contain, as far as possible, all the particulars described [455] in the schedules

thereunto annexed ; and if any Curate or other officiating Minister should neglect to

make such last-mentioned return, he should forfeit and pay to the Rector of the

parish a sum not exceeding ,3220 for each offence, to be recovered in a summary

manner before any Justice of the Peace for the parish or precinct, and payment

enforced by warrant for distress and sale of the offender's goods and chattels; and

every such Reetor should enter in the proper register books of the parish, such

baptisms, marriages, or burials, according to such returns, and should add to such

entry a certificate in the form there given.

By the 58th section of the Act it is enacted, " That if any person shall knowingly

and wilfully insert, or cause or permit to be inserted, in any such register book

of such baptisms, marriages, or burials as aforesaid, or in any such copy of such

register so directed to be transmitted to the registrar as aforesaid, any false entry

of any matter or thing relating to any baptism, marriage, or burial, or shall falsely

make, alter, forge, or counterfeit, or cause, or procure, or wilfully permit to be falsely

made, altered, forged, or counterfeited, any part of any such register, or of any such

copy of any such register, or shall wilfully destroy, deface, or injure, or cause, or

procure, or permit to be destroyed, defaced, or injured, any register

book, or any part thereof, or shall knowingly and wilfully sign or

certify any copy of any suck register hereby required to be transmitted as

afwesaid, which shall be false in any part thereof, knowing the sam

to be false, every person so offending, and being thereof lawfully convicted, &all

Fc deemed and adjudged guilty-of felony : Provided always, and be it enacted, That

1 2 0 Rector or officiating Minister of any parish, who shall discover any error E4561

to have been committed in the form or substance of the entry in the register book,

of any such baptism, marriage, or burial respectively, shall be liable to all or any

of the penalties herein mentioned, if he shall, within one calendar month after the

discovery of such error, in the presence of the parent or parents of the child whose

baptism may have been entered in such register, or of the parties married, or in the

presence of two persons who shall have attended a t any burial, or in the case of the

death or absence of the respective parties aforesaid, then in presence of the church-

wardens (who shall respectively attest the same), alter and correct the entry which

shall have been found erroneous according to the truth of the case, by entry in the

margin of the book wherein such erroneous entry shall have been made, without anr

alteration or obliteration of the original entry, and shall sign such entry in the

ntargin, and add to such signature the day of the month and year when such correction

1079

xx IIwrOoRE, 457 B o w ~ R B A ~ K v. JAMAICA (BISHOP OF) ptm-393

shall be made: Provided also, That in the fair copy of the registers respectively

which shall next afterwards be transmitted tcp the registrar, the said Rector or

o ~ c i a t ~ n g Hinister shall certify the alterations so made by him as aforesaid."

The c~rcun~stances which gave rise to the sentence now appealed from, were as

follows :

The Reverend George ~ ~ ~ l k ~ n s o n Rowe was the Island curate of the parish of St.

Cathcrinc, of which the Appellant was Rector j and he also officiated at a licensed

place of worship, in the same parish, called the Crawle, and a t another licensed

place of worship, at a property called Llangibby, in the parish of St. Thomas-in-the

Vale.

On the 4th of April 1831, Mr. Rowe transmitted [45TJ to the Appellant a quarterly .

return of the ~ a r r i a g e s and b a p t i s ~ s o I e m n ~ z ~ by him a t Llangibby, according

to the form prescribed by the law, but stating Llangibby to be in the parish of St.

C-atherine.

On the 7th of the same month the ~ppel lan t sent back to Mr. Rowe his return,

informing him by letter that he had fully and clearly ascertained that Llangibby was

not in his parish, and that he must decline recording in the parish register of St.

Cathorine any duties performed there.

On the 2nd of August 1837, the Appellant received, through the Post-Office, a

Letter from the Reverend George Rill, the; Bishop's sec re tar^, dated the 26th of

auly previous, stating that he was directed by the Bishop tot acquaint him with the

representation made to him by Mr. Rowe, that the Appellant had sent back to him the

return, and that the Rector of St. Thomas-in-thevale had refused to enter the return

of the marriage a t ~ l a n ~ i b b y , because the parties resided in another parish, and

further acquainting the Appellant that the Bishop would, until he had investigated

this subject, withl~old his certificate; without which the Appellant and the Rector

of St. ~ h o m a s " i n - t h ~ v a ~ e could not, under the Clergy Law, obtain their stipend f rorn

the island Treasury; and he further stated as follows :-" The Bishop, therefore,

directs me to inquire of you, whether the curate of your parish rendered a return

duly certified under his hand to the rector of the parish, of all baptisms, marriages,

wc! burials which had been respectively performed by him during the three preceding

months, in accor~ance with the instruct~ons of the ~ f t y - ~ r s t clause of the Clergy Act ;

and i f so, on what grounds gou refuse to enter in the proper register books of the

parish, such [4fj8] baptisms, marriages, or burials, according to such returns, etc."

The Appe~ant, in answer to the inquiries contained in the preceding Letter,

addressed a Letter to the Bishop on the 5th August, wherein he stated, that inasmuch

as he knew Llangibby not to be in his parish, he could not, consistently with that

knowledge, and with the provisions of the Clergy Law, enter the return as a marriage

which had been solemnized in the parish of St, Catherine,

On the 11th August 1837, the Appellant received another Letter from Hr. Rill,

wherein he stated as follows:-" I am directed by the Bishop to acquaint you that

the circumstance of Llangibby not being in the pari& of St, Catherine does not;

~ u ~ c i e n t l y appear ; but to obviate this difficuIty his ~ r d s ~ i p will instruct Mr. Rowe

to omit the words In the parish of St. Catherins> in the heading of his returns,

according to the latitude permitted in the 51st clause, The Bishop desires, there-

fore, that you will receive Ur. Rowels return of duties p e r f o r ~ e d a t L~angibby,

with the omissim of the word8 which state in what parish that place of worship

is situated. His Lordship has signed your certificate, which shaft be sent to the

~eceiver-General's office."

On the 6th September following, Mr. Rowe transmitted to the Appellant the return

of the marriages solemnized at Llangibby, with the omission. of the name of any

!:wish whatever.

On the 6th October 1837, the Appellant addressed a Letter to the Bishop, wherein

he stated informatio~ had reached him that Hr. Rowe had sent in the returns of

duties performed at ~langibby to the rector of St. Thomas-in-th~~ale, stating,

under his hand [459] that they had b e n solemnized in that parish; and as such

requiring from Mr. Burton, the rector of that parish, that he would insert them

in h k parish registers: that another retura of the same marriage had been sent

xo him, the Appellant, with respect to which he felt himself compelled to inform his

Lordship, after the most mature con side ratio^ he was able to give it, that he could

1080

BOWERBANK 2). JAMAICA (BISHOP OF) [1838-391 I1 MOORE, 460

not discover any change it would make in the situation in which Mr. Rowe, by his

conduct, had thought proper to place himself and the Appellant, except that, com-

bining it with his late admission, he would more palpably than before bring himself

under the penalties of the 14th and 58th clauses of the Clergy Llaw. The Appellant

begged leave t o refer his Lordship to the 46th clause of the Act, a t the same time

informing his Lordship that his parish registers have been headed in accordance

thereto; and he trusted that his Lordship, upon further reflection, would see that the

P.ppellant owed i t as a sacred duty to himself not to record the return in its present

form. Prompted, however, by a sincere and very respectful desire to accede to his

Lordship’s wishes upon the subject, as far as he could conscientiously, the Appellant

subm)itted a mode by which it appeared to him this marriage might be recorded in

hir parish register, without any violation of the letter, and with the least of the spirit,

of the existing law; and should his Lordship think proper to direct the island

curate to make the return as follows, “ At Llangibby, in the parish of Saint Thomas-

in-the-Vale,” and honour the Appellant with permission to accompany its insertion

in the parish register with the following words, ‘‘ Entered by the desire of the Lord

Bishop, the parties named being parishioners of St. Cathe-[460]-rine’s,” he assured

the Rishop he would most cheerfully record it.

On, the 18th October 1837, the Appellant received from the said Mr. Hill the

following Letter :-“ In reply to yonr Letter 04 the 6th instant, I am directed by

the Lord Bishop to refer you to that part of my Letter of the 11th August, in which

is conveyed his Lordship’s desire that you will receive Mr. Rowe’s return of duties

performed at Llangibby, with the omission of the words which s t a b in what parish

that place of worship is situated ; and his Lordship enjoins you to enter in the proper

register books of the parish such baptisms, marriages, or burials, according to such

returns, with the necessary certificate. The Bishop charges you to conform to these

instructions.”

To this Letter the Appellant, on the 22nd October 1837, replied as follows:-

“ I have the honour to acknowledge your Lordship’s communication, through your

Secretary, relative to the returns of duties sent me by the Reverend G. W. Rowe.

In reply, I beg leave, with all deference and respect, to assure your Lordship, that

your commands and my own sense of duty will ever cause me to insert most cheerfully,

in the proper registry books of my parish, all returns of baptisms, marriages, or

burials, made to me by the island curate in, his official capacity, and in conformity

with the letter and spirit of the law. My sole desire is, that, in accordance with

the Island Act, the records of my parish may give the positive information which

the Legislature has required, and may not, by a concealment of facts, lead parties

hereafter requiring certificates into error or misconception, and subject me to

the imputation of having wilfully caused it.”

The next communication! from Mr. Hill was dated [461] the 16th January 1838,

and was as follows :-“ I am directed by the Bishop to desire of you, for his Lord-

ship’s information, a distinct answer whether or not you have conformed to the

Bishop’s instructions conveyed to you in my Letters of the 11th August and 18th

October 1837, relative to the recording in the register of the parish of St. Catherine

the return of a marriage solemnized by the Reverend G. W. Rowe a t Llangibby.”

To this Letter the Appellant addressed an answer, dated the 23rd January 1838,

wherein he repeated the assurance contained in his Letter of the 22nd of October

1837, of the motives by which alone he was actuated in1 the course he had taken ;

and, as a proof of his sincerity, proposed a second time the mode of entry suggested

by him in his Letter of the 6th of October 1837.

On the 25th of January, two days afterwards, the following citation was served

upon the Appellant :-“ Christopher, by Diviner permission Bishop of Jamaica, to

all and singular clerks and literate person8 whomsoever and wheresoever in and

throughout our whole diocese of Jamaica, greeting. We do hereby authorize, em-

power, and strictly enjoin and command you, jointly and severally, peremptorily

to cite, or cause to be cited, the Reverend Lewis Bowerbank, M.A., clerk of the parish

of St. Catherine, in the county of Middlesex, within our diocese and jurisdiction,

to appear personally before us in the parish of St. Andrew’s, on Thursday, the 1st

of February next, between the hours of 10 and 11 in the forenoon.”

The Appellant, in obedience to the command contained in the preceding document,

1081

I1 XOOBE, 46% B O W E R 3 A ~ K 'U, JAMAICA (BISHOP OF) [1838-391

appeared iiz the parish church of St. Andrew's, before the Bishop, at [46Z] the time

mentioned in the above Citation, when the following proceedings took place, as

appeared from the entry in the register book:-

" In the parish church of St. Andrewk, on the 1st day of February 1838, after

morning prayers, the Lord Bishop delivered a Charge, there being present the

venerable Archdeacon Pope, D.D., etc. etc. as well as the Reverend b w i s Bowerbank,

M.A. ; and Fitzherbert Batty, Rq., and Edward Panton, Esq., her Majesty's Advocate-

General, which gentlemen appeared as the Reverend Lewis Bowerbanks counsel.

" Jamaica, ss.

" It having been represented to us by the Island curate of St. Catherine's, that

the rector of that parish and of St. Thomas-in-thevale had each declined to enter

in the register books of their respective parishes the return of a marriage solemnized

a t Llangibby by the said Island curate, who called for the exercise of our judgment

and jurisdiction in this case, we deemed ~ n v ~ t i g a t i o n necessdry; and after mature

co~isideratio1~ of the subject, and of the observations advaned by each of the said

rectors, arrived at a decision that appeared to us conformable law, and due to the

parties interested in the record.

" This decision was conveyed to the rector of St. Catherine's by a Letter of our

Secretary, written under our direction on the 1 l th of August 1837, in the folloaing

words : -' The Bishop desires,' etc., and the receipt of this communication is acknow-

ledged by Letter of the said rector of St. Catherine, bearing date the 6th of October

1837. These instructions not having been complied with, on the 18th of October

1837 they vere renewed in the following words : ' Kingston, 18th of October 1837.

Reverend Sir,-In reply to your Letter [4cS3], of the 6th instant, I am directed by

the Bishop ' etc.* On the 10th of January 1838, the Island curate of St. Catherine's

reported to us that the returni of the solemnization of the said marriage had been

sent back to hiin by the said rector uf St. Catherine's, with a h t t e r under date the

5th of January 1838, to the purport that it had not been entered in the register

books of his parish. To obtain assurance of the fact, we caused the fo~owing Letter

to be written by our Secret*arp on the 16th of January 1838: ' To the Reverend L.

Bowerbank. Kingston, 16th January 1838. Reverend Sir,-I am directed by the

Bishop,' etc. And we hwe received tlie rector's reply of the 24th January 1838, to

the purport that. our instructions had not been complied with. If in this respect we

have mistaken the purport of his reply, he is himself before us to declare that our

mistake. (A pause having been here made, the Reverend L. Bowerbank did not

deny that to have been the purport of his reply.) It remains, then, that for more than

five months our instructions, conveyed in conformity with our decision upon this

subject, have neither been carried into effect, nor controverted in the only way in

which they can be, by appeal to our ecclesiastical superior, our Metropolitan, and

hence there is not yet to be found any legal record of the marriage of parties united

in the holy state of matrimony more than ten months, and who, for aught we know,

itlay ere this have b o r n e parents of a child, of the legitimacy of whose birth there

is not the required evidence.

[&4] 'I Dated this day of February, in the year of our fiord 1838.

" GEO. D. HILL, Registrar.

" After which the Reverend Lewis Bowerbank, having openly and before the

Bishop entered on his parish register book (which had been brought with him) the

return of the marriage, which he had received from the Reverend G. W. Rowe in the

manner prescribed, his Lordship pronounced and published the following Sentence :-

" Jamaica ss., Know all rmeni, and by these presents We, Christopher, by Divine

permission Bishop of Jamaica, do decree, pronounce, and promulgate our solemn

Sentence in this matter.

'' Whereas we have maturely weighed and considered all the circumstances con-

nected with the refusal of Lewis Bowerbank, Clerk, Master of Arts, rector of the

parish of St. Catherine's, chaplain of her Majesty's Hono~rable Council in this island,

and of her Majesty's garrison at Spanish Town, within our diocese and jurisdiction, to

(Signed) " C. JAMAICA.

* This and the Ietters subsequently referred to, are set out in the previous part

of the case ; Bee ante 12 Moo. P.C.], p. 458, 460-1.

1082

BOWEKBANK v. JAMAICA (BISHOP OF) [1838-391 11 MOORE, as

abide by our decision in a certain case touching the record of a marriage solemnized

a t Llangibby, and to our repeated admonitions md instructions on which case he

had not conformed. And whereas i t becomes our duty to remove the scandal of such

contumacious contempt of ecclesinstical discipline, and the offence thereby occasioned

to the Church, by laying the &aid Lewis Bowerbank, Clerk, under ecclesiastical

censures ; We do accordingly, by this our definitive sentence, suspend the said kwis

Bowerbank, Clerk, Rector and Chaplain as aforesaid, ab o ~ c ~ o , f r the space of four

days, and until he shall have made, in the parish Church of St. Catherine’s, [4tj!j]

openly before the congregation, full acknowledgment of this his error aforesaid, and

of his sorrow and contrition for this his disobedience, and shall have renewed before

our Commissary his oath of canonical obedience to us and our successors, Bishops of

Jamaica.

“ GiTreii, signed, sealed, and published by us this 1st day of February, in the year

of our Lord 1838. (Signed) ‘‘ C. JAMAICA. (L S.) ”

On the saitte day the Bishop decreed publication of the preceding sentence, which

was accordingly read and published in the parish Church of St. Catherine, on Sunday

the 4th of February 1838, in the forenoon, while the greater part of the congregation

were present, and was returned as having been so read and published by W. S.

Coward, assistant curate of St. Catherine.

The Appellant, conceiving himself injured and aggrieved by the above Sentence

and Decree, gave notice to the Bishop, under the provisions of the letters patent of the

4th of July 182-1, within fifteen days after the same had been pronounced, of his

appeal therefrom, and gave good and suficient security in the time, and for the pur-

pose required by such letters patent: he prcseented also a petition) to Her Majesty in

Chancery, under which a Commission of Appeal was passed under the Great Seal of

Great Britain, directed to all the several members of the Judicial Committee of Her

Majesty’s Most Honourable Privy Council, or any four of them, to hear and determine

the said matter.

The Appeal being entered, and a case lodged on the part of the Appellant

(November 29, 1838*), but no case lodged by the Re-[~66]~pondent, though an

appearance had been. given in by- his agent,

The Queen’s Advocate (Sir John Dodson) applied, on behalf of the Appellant, that

a day might be fixed for the hearing, and also for the direction o f their Lordships

respecting the Court before which the cause was to be heard, whether the Commission

of Delegates, specially appointed by her Majesty, under the Letters Patent of the 24th

of July 1824, and pursuant to the Statutes 25 Hen. VIII., c. 19, and 2 and 3 Will. IV.,

c. 92, and in conformity with the Jamaica Act, 6 Geo. IV., c. 17 ; or the Judicial Coni-

mittee, the members of which were severally named in tke Commission, and who

were empowered by the 3 and 4 Will. IV., c. 41, s. 3, to hear all appeals brought before

Her Majesty in Council, by virtue of any Act, Law, Statute, or Custom previously

existing: the Appellant being desirous of knowing whether he wafi to proceed to

summou the Respondent by a citation as required by the practice of the Ecclesiastical

Court, before the Court of delegates, or by a s u ~ ~ n s , according to the usual course,

before their Lordships.

Dr. Addam, on behalf of the Respondent, after stating the general circumstances

of the case, and the provisions of the various Acts referred to, submitted the decision

to the Judgment of the Court, and

Their Lordships, without determinin~ the question respecting the character in

which the tribunal was to be considered, directed the caum to be brought on for [467]

hearing at the sittings OR the 10th of December following.

No case was lodged in the mean time by the Respondent, in support of the Sentence

pronounced, but on the day appointed for the hearing, a printed paper in the nature

of a protest, was handed in by the Bishop’s agent, stating that hi8 Lordship’s Counsel

had not felt ttheniselves justified in advising that an appearance should be entered for

the Bishop, so as to make him, in any swt, a litigant party to the Appeal. That they

conceived that it would be u n ~ e c o m i n ~ , that his Lordship should appear arid contend

* Preeent : Lord Broughani, the Master of the Rolls (Lord Langdale), Mr. Baron

Parke, the Chief Judge of the Court of Bankruptcy [Sir Thomas Erskine], the Right

Hon. Sir Herbert Jenner, and the Right Hon. Dr. Lushington.

1083

-- -~~ -- -

for &e a ~ r ~ a n c e of his own Sentence ~ronounced by him, according to the best of

his judgment, and pursuant to the best ~ n f o r ~ a t ~ o n which he could obtain, on a con-

sideration of the c ~ r c u m s t a n c ~ of the case; and accordingly it was not to be under-

stood that the Bishop of Jamaica was before their ~ r d s h i p s either co~~tending

against, a reversal of the Sentence c o ~ p l a i ~ ~ e d of, if their Lordships, under a review of

the c i r c u ~ s t a n c ~ of the case, should deem it erroneous-or acceding to such a

reversal. That although the c~m.petency of the present Appeal was not to be con-

sidered as admitted on the part of the Bishop, Counsel for his Lordship would

attend the hearing of the Appeal, in tastirnony of the Bishop’s respect for their

Lordships, but without proposing to address their Lordships, either as to their com-

petency to entertain t,he Appeal (unXess called upon so to de), or as to the merits of

the Appeal.

At the opening of the case, their Lurdships expressed an opiuion, that such a

gtatement as t*hat put in on [&33] bekalf of the ~ i s ~ i o p , was wholly unusual, and could

not be taken notice of as a defence ; anni that the appearance or w i t ~ ~ d r a ~ a l of his

~ r d s l ~ ~ p ’ s Counsel after a day had been,fised, and an appwrance given in for the

Bishop, could not, preclude their Lordsh~ps from proceedjn~ with the case ; they

~ n t i ~ a t e d , also, that the Appeal ought to have been to the Queen in Council, and a

reference prayed to the Judicial Comn~ittee, and not, as had been done, for the

a p p o ~ ~ ~ t ‘ i n e ~ t of a ~ o m n ~ ~ s s i o ~ ~ of Delegates; but they were of opinion that, being

included as members of the Judicial ~ o ~ i i ~ n i t ~ e e n the C o ~ i s s ~ o n , , and forming the

requisite number, both to constitute a Court of the Judicial Committee under the

Bct 3 and 4 Will. IV., c, 41, as well as the terms of the Com~ission, they xere coni-

petent to hear and report upon the Appeal.

The Queen’s Advocate [Sir John Dodson], and Xr. Burge, Q.C., for the Ap~l la t i t .

Xr. Knigh6 Bruce, Q.C., and Dr. Addams, appeared on behalf of the ~ s p o n d e n t .

The Queen’s Advocate, after stating the circu~stances under wliich the Appeal

arose, and the ~urisd~ct ion given under the letters patent, to the Queen in Council on

Appeal, proceeded to argue against the form of proceeding a ~ o p t ~ by the Bishop

in passing sentence upon a mere citation and appearance, We ~ i ~ ~ e n d e d that,

according to the practice of the Eccles~ast~cal Courts here, which by the letters patent

was to be followed in Jamaica, the mode of proceeding in criminal oases, was by

pron~ot~ng the office of the Judge? or the Bishop, or the Ordinary, either ex mer0 officio,

or ex o f i c w ~ o ~ ? ~ ~ o , which latter is the more general [&9] in this country, because

in that the party promot~ng the office of Judge is liable to the Judge for the costs in-

curred in the cause. He then stated the rule, as laid down in Oughton’s Ordo

dudiciortcrn, Tit. 138-“ Qz~ibus modis EPISCOPUR, seu A R C N I D I A C O ~ S , procedere

potest, im corrigen& et r e f o ~ n d i s CRXMINIBUS.” * That the proceeding in this

case being per i~~~isitio~a~m, the course pursued ought to have been according

to the form prescribed in Tit. 139, ‘‘ De f o r ~ ~ ~ n p~~o~equendi per K ~ ~ u I ~ I T ~ o ~ E ~ ~ . ” $

And .that had the Bishop d e t e ~ ~ ~ i i e d to proceed in the first instance, ex o@cio mero,

he ought then to have ~dopted the form and inode of proceeding det,aifed in the Tit.

141, ‘‘ De modo p r o ~ d e n d ~ in. Cawa I ~ Q ~ I s I ~ I o ~ i s si c ~ t n t ~ s c o i ~ p a r u e r ~ t ~ $. That

* UT %L. ~oc~issim~s accepi, atque ex f’raxi didici ; TRES sunt Pdodi procedendi, in

C r ~ 9 ~ i n i b ~ ~ c c ~ e s ~ s ~ i ~ ~ videlicet,

t racta~)i~ur .

t XI ad ~ V B E S EPXS~OPI, seu ~ C H ~ ~ I A C O N ~ , sive F a m a ~ ~ ~ ~ a ; r ~ f e r e ~ € e , sive

ex relatione P e r s ~ n ~ r ~ k ~ Fide i g ~ ~ a r u ~ ~ , pervenerit, p u e ~ ~ u a m (sue Diceceseos, e t

Arcl~idiaconatu~) nlipuod CRIMEN notoriurn cornmisisse, vel de aEiqm Oprmoele

erronen aut PERVERSITATE obstina6a, insignem, aat suspectum fuisse (quamvis tale

CRIMEN non fuerit per G ~ ~ r d i n n o s aeonornos seu ~ n ~ ~ i ~ i ~ o r e s , de quibus inferius

tractab~tur ~ e ~ e c t ~ & ~ z aut ~ ~ s e n ~ a t ~ ~ n ~ EPISCOPUS seu ~ ~ R C ~ I ~ I . ~ C O N U S , potest citari

mandare ~ E ~ ~ I ~ Q ~ E N T E ~ ad c o ? ~ ~ a ; ~ ~ ~ d ~ ~ ? ~ ~ persoTa~ i er , coram eo, in loco sol&

~~c~ (et non in LEJXBVS atis is, quia Jw debet ~~~, in solito toco, reddi)

certis Artic&& an^^ s w ~ ~ u ~ ~ ~ , et ~ ~ s ~ r t i m (tale) ~R~ ~ (hic s p ~ ~ ~ c a n d u ~

est Crimen~ e o m c ~ r n e ~ z t i ~ u s , et sibi o ~ ~ ~ i e n ~ ~ ~ s , ~ e s o n s ~ r ~ ~ .

1 Relata ~ ~ a ; ~ ~ ~ ~ o ~ i t a t ~ r i o ac PhltTE comparente citata; JUDEX, ~ ~ p i s c o ~ u s veE

Archidiaconus seu eoiwm O ~ c ~ ~ ~ i s ~ e x O ~ c ~ stm mero, contra comparenten~,

1084

This statement was signed by counsel.

11. Per ~ ~ Q U I R I T I O ~ ~ , ~ C C U S h ~ ~ O ~ E M ; et ~ E N U N C I h T I O ~ ~ ~ ; de quibus, SlCct oTd~ne ,

BODMER’S PATENT ( IN RE) [ 1 8 3 8 -4 01 I1 MOORE, 470

the party being cited and appearing, the office of E4701 Judge is ‘( in scriptis dare et

objicere solet,”-which in modern practice m a n s the exhibiting articles, or a libel,

containing the charge made against the party accused ; and not proceeding, as in the

present case, to pronounce a sentence of suspension, without even stating to the

party accused the nature of the offence imputed to him. !i%e learned Counsel, being

about to enter upon the merits of the case, was stopped by the Court.

Sir Herbert Jenner.-It is the clear opinion of their Lordships that i t is quite

impossible to sustain the proceeding appealed against. It is a proceeding in which

the Bishop has taken upon himself the office of Judge, merely citing the party to

appear before him in the parish church of St. Andrew’s, without stating for what

purpose. The Bishop having heard some accusations against this Appellant, brought

before him a correspondence, which is set forth in these proceedings, and then goes

on to direct that certain acts shall be done : those acts were done ; and afterwards the

Bishop takes the course of suspending the Appellant for four days, and until such time

as he shall publicly acknowledge his offence-. We think, that under such a proceeding as

this, the party not having been cited to aniwer any particular charge, and haxing no

articles administered to him in writing, for the purpose of making his defence, i t

is quite impossible to sustain the sentence appealed against; we therefore pronounce

for the Appeal and reverse the sentence, with costs.

Feb. 22, 1839.”-A question having been raised before the Master of the Queen’s

Bench, to whom the costs thus given to [471] the Appellant were referred for taxation,

respecting the costs incurred in procuring the commission under which the delegates

were appointed, which he refused to allow the Appellant,

Mr,. Burge, Q.C., applied for the directions of the Court, and the declaration of

their Lordships as to the character under which they sat when adjudicating the

Appeal, whether as Members of the Commission of Delegates, or as a Judicial Coni-

mittee of the Privy Council.

Their Lordships declined determining the question, until the same Judges should

be present who had heard the Appeal, two of whom were absent on the circuit; and

the Appellant withdrew the application.

[Mews’ Dig. tit. COLONY, 111. APPEALS TO PBIVY COUNCIL, 1. W h e n appeal lies gener-

aZZy; also tit. ECCLESIASTICAL LAW, IV. COLONIAL CHURCH.

RE BODMER’S PATENT.

[t Nom. 29, 1838; Dec. 5, 1839; May 20, 1840.1

By the 5 and 6 Will. IV. c. 83, sec. 2, i t is provided, “ that no extension shall be

granted if the application shall not be made and prosecuted with effect, before

the expiration of the term originally granted in such Letters Patent.” Held

by the Judicial Committee, that the petitio11 fo r such prolongation must be

brought to a hearing before the expiration of the Letters Patent, and that the

pendency thereof is not sufficient to bring it within the intent and meaning of

the proviso.

Where, therefore, the Petitioner had been prevented prosecuting his petition

ARTICULOS (conf inenfes tani caiisas Conventionis quam BAMAJI publicam de CRIMINE

proptel. quod citnuit PARTEM) in scriptis dare et objicere solet et conventurn ad JURA-

MENTUM subeundwn ad respondendurE de Veritate, in facto p.roprw, et de Credu-

litate, in facto nlieno, monere et mandare.

* Present : The Lord President [Marquis of Lansdowne], Lord Lyndhurst, Lord

Brougham, and the Right Hon. Sir H e r h r t Jenner.

t Present: Lord Brougham, The Master of the Rolls (Lord Langdale), Mr. Baron

Parke, Sir John Nicholl, Sir Herbert Jenner, and the Chief Judge in Bankruptcy [Sir

Thomas Erskine].

1085