Ditcher v. Denison (United Kingdom)

XI MOORE, 323 DITCHER v. DENISON [1857]

value of their property ; and that no intentlon of repealing the Law in either of these

respects had been pointed at in any par t of the proposed Articles of the new Law on

the amendments, which alone had been lodged, au Greffe. That by such means an

iiiiportant right had been taken away without any opporturiity being allowed to the

iiiernbers of the different parishes to consult their constituents on the subject; such

preamble never having been lodged, au Greffe, notwithstanding a motion made by a

Deputy of one of the parishes, for that purpose ; but that the preamble was adopted

by the majority of the Assembly of the States, and formed p a r t of the proposed Law

iii question, and it was urged on behalf of the Petition,eirs, that the omission to lodge

the preamble of the Acte, au Greffe, would alone necessitate the rejection of the pro-

posed Acte by Her Majesty in Council.

In support of this view, an Order in Council of the 18th of April, 1815, was

referred to, by which an Act of the States of the 2nd of October, 1813, makillg a ra te

on tlie inhabitants, was declared null and void, and ordered t o be erased from the

Record8 of the Island, because it had been passed without having been lodged, a u

Greffe, pursuant to the Order in Council of the 28th of March, 1771, notwithstanding

the rate had beeii already levied.

This objection having been stated, their Lordships decided upon hearing Counsel

on this point only.

Mr. R. Palmer, Q.C., and Mr. Mackeson, were heard for the Petitioners; and

[323] Sir Frederic Thesigsr, Q.C., and Bfr. G. M. Giffard, for the States of Jersey.

Their Lordships intimated their opinion, through

Tlie Right I-Ion. T. Pemberton Leigh, That the objection was fatal, the provisions

of the Order in Council of the 28th of March, 1771, declaring that ‘‘ after which i t ”

(that is, the entire Acte, including of course the preamble) “shall be lodged, au

Greffe, for fourteen days, a t least, before it, shall be determined, in order that every

individual of the States may have full time to consider thereof, and the Constables to

consult their constituents, if they judge necessary,” were conclusive, and implied

t h a t mheii an Acte had been passed, it had been lodged for fourteen days, au Greffe,

wliicli it mas riot pretended tlie A4cte of 1857 had been; and that their Lordships

noiild report such as their opinion to Her Majesty in Council.

Tlie following report was niade: The Lords of the Committee in obedience to

Her Majesty’s Order of reference have taken the petition into consideration, and

proceeded to hear Counsel in the matter on behalf of the Petitioners, and :tIso on

behalf of the States of the Island of Jersey; and it appearing in the courhe of such

hearing, that the provisions of an Order in Council of the 28th of March, 1771,

which directs that when anything is proposed in the assembly of the State#, i t shall

be lodged, U L I Grejfe , f o r fourteen days, at least, before it shall be determined, hsve

not been duly complied n i th in respect of the Acte of the 30th of April last, their

Lordships do agree humbly [324] to report as their opinion to Your Majesty, that

it is not advisalile for Tour Majesty t o confirm the said A&. This report was ap-

proved by Her Majesty, and an Order in Council made in conformity with such

recomniendation.

[Mews’ Dig. tit. COLONY : 11. PARTICULAR COLONIES ; 13. Jersey a n d Guemary;

b. ConstLtutzon.

ON APPEAL FROM THE ARCHES COURT OF CANTERBURY.

The Reverend JOSEPH DITCHER, Clerk,-Appellant; The Venerable GEORGE

ANTHONY DENISON, Clerk,-Respondent * [Dec. 4 and 12, 18571.

Section 20 of the Church Discipline Act, 3rd and 4th Vict., c. 86, enacts, ‘ I that

* Present : The-RighcRev. and RGht Hon. The Lord Bishop-of LondoQthe

Right Hon. The Lord Justice Knight Bruce, the Right Hon. T. Pemberton Leigh,

the Right Hon. Sir Edward Ryan, the Right Hon. The Lord Justice Turner. and the

Right Hon. Sir John Patteson.

718

- ~ - -

.

XI MOORE, 325

every suit or proceeding against any Clerk in Holy Orders, for an offrnce

against the laws Ecclesiastical, shall be commenced within two years after

the commission of the offence in respect of which the suit or proceeding shall

be instituted, and not afterwards.”

Held (affirming the decree of the Arches Court) that the “ suit or proceeding ”

was not commenced by the issuing of a Commission under that Act, nor by

the report made by the Conlmissioners, nor by the filing of articles in the

name of the Bishop of the Diocese in which the alleged offence was commilted,

and service of the same on the accused ; but

First, that the “su i t or proceeding” only commenced when the accused was

served with a citation to appear a t a certain time and place before 3, ccni-

petent Court to answer definite charges, as required by the 9th and 10th

sections of the Act [I1 Moo. P.C. 339, 3441; and

Second, that the limitation of two years, within the meaning of sectioii 20, a:is

to be reckoned from t h e time of the service of the citation [ll Moo. P.C. 342,

3431.

Therefore, where application was made t o the Archbishop for a Commission,

under the 3rd and 4th Vict., c. 86, to inquire into certain alleged heretical

doctrines contained in sermons preached in November, 1853, by a Clerk in

Holy Orders, and the Archbishop, in November, 1854, issued a Comaiisaioii,

and the Commissioners reported that a przmmn f a c i e case existed against the

Clerk, whereupon criminal articles mere exhibited and filed against him i n

August, 1855, and afterwards, on the 5th of June, 1856, a citation, or ieyuisi-

tion, was served upon the Clerk to appear before the Archbishop, a t a C c w t

to be held in the Diocese, to make answer to such charges ; i t was Held : tfLat

the service of the citation being more than two years after the preaching of

the sermons (the alleged offence with which he was charged), the suit v a s

barred by the 20th section of the Act.

DITCHER 27. DENISON [1857]

In this cause, the Appellant, the Rev. Joseph Ditcher, Clerk, Vicar of St i i t l i

Brent, in the County [325] of Somerset and Diocese of Bath and Wells, on the ?Ut11

of October, 1854, preferred a complaint before the Archbishop of Canterbury againsr

the Respondent, the Venerable George Anthony Denison, Archdeacon of T a u x o n

and Vicar of East Brent, in the same County and Diocese, for having in three

sermons preached by him in the Wells Cathedral on the 7th of August, 1853, the

6th of November, 1853, and the 14th of May, 1854, respectively, affirmed or main-

tained doctrine directly contrary or repugnant to the Thirty-nine Articles of

lieligion.

The question raised upon appeal did not affect the merits as to the soundnew or

iinsounduess of the doctrine maintained by the Respondent in these sermons, but N as

confined to the construction of the 20th section of the “ Church Discipline Act,” 3rd

and 4th Vict., c. 86. By that section it is enacted, “ That ,every suit or proceeding

agaiiist any Clerk in Holy Orders, for any offence agitinst the laws Ecclesiastical,

shall be commenced within two years after the commission of the offeiice in respwt

of which the suit or proceeding shall be instituted, and not afterwards.” On behalf

of the Respondent, i t was insisted that the commencement of the “ suit or proceed-

i n g ” [326] was referable to the service of the citation on him to appear before the

Court at Bath, that being the only Court which had authority to adjudicate betwi-en

the parties ; and tha t then it was, for the first time, that he was called upon, :n any

“ suit or proceeding; ” the comniencenient of the suit being from tha t period. The

case of the Appellant was, that the comntencement of the ‘‘ suit or proceeding ” was

either the issuing of the Commission by the Archbishop, or, if that was iiot the

commencement, then a t the time of the filing of the articles in the Consistory Court

a t Wells; or if the ‘‘suit or proceeding” was not coninienced a t either of tliose

times, then that the service upon the Respondent of the articles must be taken to be

the commenceriient of the proceedings ; bcause they contained a charge against

him, and, therefore, that that time must be held to be the commencement of the

“ suit or proceeding ” in the cause.

The facts of the case were these :-

The Archbishop of Canterbury issued a notice, dated the 31st of October, 1854,

719

XI MOORE, 327 I ~ C N E R it. DENISON [ 18573

to the Respondent, of h i s iiiterition to isrsue a Con inh ion of inquiry rut0 tlie groulldh

of suc21 co~iplail l t under the Act, 3rd and 4th Vict., c. 86. This notice was served

upon the Kespondeat, 011 the 3rd of Noxwuber, 1854, axid a Cornntission accordinqlp

i sq ied ctii the 30th of Xoveiuber. 1854, and a notice w w issued and seyred on the

21st of I)ecerttb:>r, 3854, by the C o ~ n ~ ~ s s i o n e r s , of the time and place of trieetirrg of

the Cotitiiiisxioners. The Cornliiissiorrers iriet on the 3rd of January, 1855, a t Cleve-

cloii, i r i the County of Somerset, within the Diocese of J3ath and Wells, and by cd-

iournnient on the i t b , 5th, and 6th days of that uionth. On the 10th of Janudry,

i 855, the ~oiiiniissioiie~.~ iiitiriiated their opinion, and e3271 reported that there werr

prutrn furze grounds for further proceedings. Upon the receipt of this report i.nd

evidence by tlie Arch~~ishop of Canterbury, the same \\as deposited iii hicc principal

Registry. The Appella~it, however, being desirous of taking further proceedings

cissinst the Respondent, an application was made by him to the Bishop of Bath

aitd Wells to sign Letters of Request to the Judge of the Arches Court of C a n t e r ~ ~ r y

to hear aiid deterinine the coniplaint under the provisions of the ‘‘ Church Discip-

line Act,” hut he declined doing so ; articles were then drawn up, arid a copy served

upon the Itespondeut, on the 5th of August, 3855. Application was then made to

His Grace, to constitute a Court under the 3rd and 4th Vict., c. 86, see. I, and to

give riotice to the Respondent to appear before him. The Archbishop, however.

declined to proceed any further in the matter, and an tipplication was then made tu

the Court of Queen’s Bench for a ~ i ~ a i i d a ~ ~ u s to conipd hiin to proceed (reported, 6

Ell. and Bla. 546, 557). On the 22nd of November, 1855, a rule o&‘ was granted

lw tlie Court of Queen’s Bench, which was made absolute on the 24th of January,

1356, arid oil the 1!ith of April, 1856, tlie rule was made peremptory. In May,

3856, the ~ r c ~ ~ b i s l i o p made a returri to the rule, stating that he had cited the Re-

xpondent to appear before him in the Coimnon Aall of Doctors’ Comniuirs, London.

This return to the rule was, on the 6th of May, 1856, quashed by the Court of Queen’s

Bench. who decided that the A r c h ~ i s ~ ~ o ~ ~ ought to have cited the 1 ~ e s ~ ~ o i ~ d e n t in the

Diocese of Bath and Wells, iirid the rule peremptory was enlarged. On the 6th of

dune, 1856, the Archbislrop made another return to the rule, to the [328] effect that,

he had cited the Respondent t o appeMr before him a t Bath, in the Diocese of Bath

and Wells. t o the proceeding by i i ia i~di~ir iu~.

op, by a citation, o r iequifiitiori, under I is

hand cited the Respondent to appear before him at the Guildliall a t Bath, oii the

23nd of July then next. This notice was served upon the Respondent on the 10th of

Jiiire, 1856. The Respond-

erit apllenred before the Archbishop under tlie following protest: That the “ suit

or procet ding ” (if atty) then pending before His Grace the Arclibishop of Canter-

b ~ y , mas c o ~ n ~ e i ~ ~ e d o r instituted, by the service upon him, the ~ e s p o ~ d e n t , 011

the 10th of June, 1866, of a certain instrument in writing, or citatioii, under the

hand of the Arc~ ib i s~~op , dated the 5th day of that month, and calling upon him to

tippear a t the Guildhall, in the city of Bath, either in person o r by his agent duly

appointed, at 11 o’clock in @e forenoon of the 22nd of July, 1856, then and there

to make aiiswer to certain articles therein alleged to have been filed iri th,) Registry

of the Diocese of Bath and Wells, aiid of which articles? i t mas therein alho alleged

that it copy was served upou him, the Respondent, 0.11 the 4th of August, 1855 ; tBat

the aiticles did riot set forth aXJy itlleged offence, which was the subject of inquiry

hefore the ~ o n ~ i ~ ~ i s s i o n e r x , as having been c ~ ~ n i n i i ~ t e d by him, the ~espondel i t , withiii

t n o years of such the conimenc rnent or institution of the suit, according to the pro-

visions of the Act, 3rd and 4th Vict., c. 86, and, therefore, tlie party accused coulcl

not be called upori to inake answer to such articles; and subject to E3291 such pro.

test g:kve a negative issue to the articles. This protest was overruled, arld the Srch-

1,ishop with his Assessors then proceeded to hear the cause ; and after a lellgthene~l

Iicaring, finally declared the articles to be sufficiently proved, and a senterlce of

deprivation pronounced against the ~ ~ s ~ ~ o n d e i i t .

From this sentence the Respondent appealed to the Arches Court of Canterbury.

The -IppelIatit objected, that it was not competent to the Court of Arches to enter-

tain the appecbl, arid the Dean of the Arches sustained this objection, arid dismissed

the appeal. The R e ~ p o ~ d e n t then applied to the Court of Queen’s Belich for a

mnndalilus, aud that Court, on the 28th of January, 1857, directed a n ~ ~ n d a m ~ s to

720

The RcspondeiIt was 110 ptir

On the 5th of June, 1856, the Archb

The Court met a t Bath, or i the 22nd of July following.

UITCHER I f . ~ ~ ~ 1 ~ 0 ~ [1857] XI MOORE, 330

issue to the Dean of the Arches t o entertain and hear tlie appeal, on tlie ground,

that the Court of Bath and Wells was a n inferior Diocesan Court, and that the

Archtkhop was only itcting as Bishop of Bath and Wells, pi-o hac oice, and t h t

the appeal under the 3rd and 4th Vict., c. 86, properly lay to the Court of Arches

(see report, 3 Jurist, N.S. 439). The appeal in the Court of Arclies was afterwards

prosecuted, and in the month of April, 1857, came on for hearing, when Counsel

UKI behalf of the Respondent insisted, that the validity of tlie protest should

be argued and decided in the first instance; and acceding to that applicatioil, t l i p

Dean of the Arches (the Right Nan. Sir John Dodson) assigned to hear in the Erst

instance arguments on the objection on the ground of liniitatiori of the suit Toy lapse

of time set forth in that protest; ;and af ter hearing the case on that point only,

pronounced on the 23rd of April, 1851, for the validity of the protest, and tiis-

rtiissed the Respondent [330] from all further observrtrice of justice in tlie suit, iwf

made no order as to costs.

The ground of the protest so susrained by the Judge of the Arcliex Court was

to the eff ct, that tlie Articles which the Respondent was called upoir to iinsner *t

Bath, did not set forth any alleged offence as having been conirnitted by the Re

spotidexit within two years of the com~iiencei~ent or iristitution of the “suit or JQ-O-

ceeding ” (reported, I Deane’s Ecc. Reps. 334).

The present appeal was frGm this decree ; the sole question raised being, w I ie t l ic~

the sentence of the Dean of the Arches was riglit in sustaining the validity of tile

objection above set forth iii the protest of the Respoiideiit, that the suit was ha, led by

section 20 of the Act, 3rd and 4th Vict., c. 86, by lapse of time.

Appe1lairt.-Tlie decision of

the Court below raises new and iiiiportaI~t question : whether in proceeding againat

a clergyman under the ’‘ Church Discipline Act,” 3rd and 4th Vict., c. 86, tlie period

of two years, limited bv the 20th tion, for taking proceedings, is to be reckoned

from the coriiniissioi~ of the alleged offence, or whether it c o ~ ~ i ~ i e n c e s at the ibsuirig

of the Commission, or upon tlie filing of tlie articles, or, as litis bem held Iiy the

Judgc of the Arches Court, it commences on the service of the citatioii upoii tlie 1)ar-y

accusttl. What IF, t h t h

coi~~~y~ei~ce t r i~ i i t of the proceediIi~s? Our coiitention is, that the issuirig of the Coli+

iiiihsion of inquiry, under the 3rd section, 13311 is the co1iiineiicem:nt of the ‘. suit

or proceeding,” niexitioned in the 20th section, and that in this case the t n o pears

limited had not espired when the proceedings weie taken. The niaehineiy, so to

call it, of the Act is this : If the Coirrxnissioners in their report are of opiiiion f t a t

there is ground for further proceedings, then it is competent to the ljisliop to send

the case for trial, at any time after the report, and that the first proceeding is the

filing of the articles. And when that course is adopted, then me coritend that the

iiling of tlie articles must Le deemed to be the cwiniencenieiit of tlie +‘sui t ut’ pro-

ceeding.” The 3rd, 6th, 9th, and 13th sectioiis shorn what IS intended by the P ord

” proceeding ” irientioned in the 20th section. It is analogous to the issuing of a

subpoena in the Court of Chancery, and the suiiig out of a writ at Coniniuii law,

w1iic.h constitute the coniiiiencerneiit of a suit o r action, and by this Act the coui-

iiienceiiient of the I ‘ suit o r proceeding ” is f,ither the issuing of the Coiyiiiiis~ion, or

hervice of the articles. In the present case the service of the citation to appear in

Doctors’ Coniiuons, which followed the issu iiig of the Commission, and tlie tiliirg

and service of the articles, was the third step to be taken, aiid cannot be called the

(’oiiiiiti~rice~iilleiit of tlie (‘ suit or proceeding.” The caws of the Bzshop 01 Lttwoin v.

ntiy (4 Notes of Cases, ‘ B O ) , Bruoks v. C7esaweEl (4 Sotes of Cases, 429). and The

Aislirip or Urr e f o i d 17. 1 - - 7 1 (2 Robcrts EGG. Rep. 3%), are distiiigurslia1,ie froiii

tlie present. They were decisioiis in cases which had (~n31e before tlie Archei Court

by Letters of Request, issued by tlie Bishop. Even if these authorities caii be held

to apply to proceedings under a Co~iimissioii, pet we insist that the decrei [332]

appealed from is erroneous, as the filing of the articles, in any circunistances, must

be taken to have been the cominencei~ient of the p r ~ c e e d i n ~ s .

Th. Phillimore and Mr. Coleridge, for the Respondent.-The “ Church Diicipline

Act,” 3rd and 4th Vict., e. 86, has a threefold object: first, t o afford a Council of

advice to the Bishop; secondly, to effect an improveriient in the Trihuiial and the

procedure of the Diocesan Courts; and lastly. to f ix a limitation of time within which

S i r Fitz-roy Kelly, Q.C., and Dr. Bayford, for th

I n effect, the whole question is narrowed to this point.

721

XI MOORE, 333 DITCHER v. DENISON [1857]

proceedings can be taken against a Clerk in Holy Orders. It is upon the latter

point only that we have to deal with it here, and we contend that the 20th section

of the Act is clear and unequivocal in its terms. It was passed to remedy defects

which existed under the Ecclesiastical law, whereby a charge of a criminal nature

inight be held, in terrorum, over a clergyman, for an indefinite time. The . nly

difficulty suggested arises from the use of the word “proceeding:” that word is,

however, used partly in it popular and partly in a technical sense. Sherwood T.

Ruy (1 Curteis’s Ecc. Rep. 173) and upon appeal, R a y v. Sherwood (1 Moore’s P.C.

Cases, 353), are conclusive authorities that the service of a citation is the t rue win-

Iiiencement of a suit in the Ecclesiastical Courts. These decisions were made before

the passing of the Church Discipline Act, and i t is apparent tha t the words liere

used, having in view the object of the Statute, are to be construed according to the

practice and usage of Ecclesiastical law. A suit in the Ecclesiastical Court com-

mences by a citation, S?ierwood v. R a y [I Curt. E.R. 1731. So i t is by the Civil law,

Domat’s CiTil Law, B. IV., Vol. 2, p. 658 ; The Code Napoleon; The American [333]

Code. At

Common law a notice of action is not the commencement of an action. As this is

a penal Statute, carrying into effect a severe penal Act, the 13th of Eliz., c. 12,

relating t o the Articles of Religion, i t must, by the universal rule of law, be con-

strued strictly and literally against the par ty enforcing its provisions. If there is

ally doubt or ambiguity arising from the language of the Act, i t is not t o be strained

t o the prejudice of the par ty ikccused, but must receive a liberal construction in his

favour. Dwarris “ On Statutes,” p. 646 (Edit.

1548), Henderson v. Sherborne (2 Mee. and Wels. 236), Proctor v. Mainwamng (3

Bar. and Ald. 145). Unless the proceedings are to commence by the citation, there

is really no limitation atf all provided by the 20th section of the Act, 3rd and 4th

Vict., c. 86. Here the

first proceeding taken, was when the Respondent was served with the citation dated

the 5th of June, 1856, to appear and answer the charge, which was more than two

years after the acts complained of were done. Being a Statute of Limitation i t

must be construed in conformity with the decisions of the Courts of Common law, 111

[construing] other Statutes of Limitation; which have always been in favour of

the limitation. Green v. Rivett (2 Salk. 422), Murray v. The East India Compmy

(5 Bar. and Ald. 204), ,Short v. M‘Carthy (3 Bar. and Ald. 626), Rhodes v. Smrthurst

(4 Mee. and Wels. 4 2 ; S.C. 6 Mee. and Wels. 351), The East Zndk Company v. Odit-

churn Paul (i Moore’s P.C. Cases, 85), 2’olson v. Kaye (3 Brod. and Bingh. 217),

The Imperial Gas Conz-[334]-pany v. TJLC Lonclom Gas Colrtpamy (10 Exch. Rep. 39),

Kennet and Avon Canal C o m p n y v. The Great Western Canal Company (7 Q. Ben.

Rep. 824), Pott v. Clegy (16 Mee. and Wels. 321), Granger v. George (5 Bar. and Cr.

149), Boloell v. Y o m g (5 Bar. and Cr. 259), Battley v. Faudkner (3 Bar. and Ald.

288). Hovenden v. Lord Annes-

l ey (2 Sch. and Lef. 632), S m i t h v. Fox (6 Hare, 386), Freake $7. Cranefeldt ( 3 Myl.

arid Cr. 499). They referred also to the following authorities upon the construction

of the Church Discipline Act. Bluek v. Rackhanz (5 Moore’s P.C. Cases,.305), R e

Monckton (3 Notes of Cases, Suppl. p. lv.), Bishop of Hereford v. T-n (2 Roberts’

Ecc. Rep. 59.5), Brookes v. Cresswell (1 Roberts’ Ecc. Rep. 606), Bishop of Ltncoln v.

Day (4 Kotrs of Cases, 299); and ils to the manner of proceeding under that Act,

cited The Deun ot York’s case (2 Q. Bell. Rep. l), T h e Quee?~ 17. T?ie Archbishop of

Canterbury (6 Bla. and Ell. 546).

No suit is said to be coninienced till the accused is actually summoned.

Bacon’s Ahr. tit. ‘‘ Statute,” (I.) 9.

But that section clearly limits proceedings t o two years.

So i t has also been construed by Courts of Equity.

The Consideration of the judgment was postponed, and now delivered by

The Lord Justice Knight Bruce (6th Feb., 1858).-This is an appeal from a

decree or definitive sentence of the Court of Arches, pronounced on the 23rd of

April, 1857, in a cause of appeal before that jurisdiction, to which the parties were

two clergymen of the Diocese of Bath and Wells; one, Joseph Ditcher, the Vicar

of South Brent, in Soniersetshire, the Appellant here; the other, George Anthony

Denison, Vicar of the [3%] neighbouring parish of East Brent, and Archdeacon of

Taunton, the Respondent here.

It appears that the Vicar of East Brent preached

and published in the years 1853 and 1854, certain sermons which the Vicar of South

732

But in tha t Court, their positions were reversed.

The controversy arose thus.

DITCHER 2’. DENISOK [1857] XI MOORE, 338

Bin n t disapproved ; whereupon (tlie preferments held by the Vicar of East Hrmt

bciiig in the gift of the Bishop of Bath and Wells, in right of that See), Ditclier, the

Appellant, in October, 1854, made formally to the Archbishop of Canterbury, under

the Statute, the 3rd and 4th Vict., c. 86, called “The Church Discipline Act,” a

written application or complaint.---[His Lordship liere referred to the steps :hat

hiid been taken, which a re fully detailed in the stateiiie~it of the case, and proceeded.]

-The only point decided in the Arches Court by the decree, or sentence, under

app a1 having been that of tinre, the question is, whether the Appellant was barred,

and the Respondent protected by the 20th section of the Act in question. It is on

this Statute that much, or everything, turns here at present; whether under it,

and in pursuance of it, the Archbishop had jurisdiction or authority to pronouiice

the decree or sentence of deprivation pronounced at Bath. which (reversed by the

Court of Arches) the Appellant by the preseiit appeal, seeks to set up again; for no

other point has been argued before us. The parties have reserved themselves i pon

every other part of the litigation (in the event of a different view being taken here

from that taken by Sir John Dodson), for a future discussion, or future discussions,

here or elsewhere, or both elsewhere and here :-the Respondent continuing to [336]

reject all i inputat~(~ri of heresy, while the Appellant still maintains that the im-

p .ached sernions exhibit heterodox opinions. We, however, have only to endeavour

to reach at a proper conclusion as to the sufficiency, or insufficieiicy, of the alleged

bar by tinie. under the 20th section of the Church Discipline Act.

First, then, what is the t rue reading, and what the meaning, of that section,

and iiiore especially its coinmeiicing paragraph? A question upon which, if c f

easy solution, i t i s not likelv that two such competent interpreters as the Judge cf

the Consistory Court of London, and the Dean of the Arches, would have differed.

Section twenty i s in these ternis: “ And be it enacted, that every suit o r proceed-

ing against any such Clerk in Boly Orders for any offence against the laws Ecclesias-

tical, dial1 be ~on~menced witliiii two years after the co~i~mission of the offence in

respect of which the suit o r proceeding shall be instituted, and not afterwards:

Provided always, that whenever any such suit or proceeding shall be brought in

respect of an offence for whicli a coiiviction shall have been obtained in any Court

of Com~noi~ law, such suit or proceeding may be brought against the person con-

victed at any time within six calendar nioxiths after such conviction, although more

than two years shall have elapsed since the commission of the offence in respect of

xdzich such suit o r proceed in^ shall be so brought.’’ The words just read a r e found

in a Statute containing twenty-six sections, every one of which has rewived froin

their Lordships great and prolonged (I had drnost added painful) attention ; for,

probably, no [337] Statute ever in II stronger degree riyuired that irot any portion

should be judicially construed without knowing and seighiiig the whole.

I t cannot. in the first place, escape observatioii, thitt “ su i t ” is a word propeieip

of less exteirt and less general applicability, t h m “ proceeding,” o r that, possibly,

every suit may be correctly termed a proceeding, though not every proceeding, a

suit. It is also a good general rule in jurisprudence that one who reads a legal

document, whether public or private, should not be prompt to ascribe, should pot,

without necessity or some sound reason, impute to its language tautology or super-

Nuity, and should he rather at the outset inclined to suppose each word intended to

ha re some effect, or be of some use.

It is plain, however, that where there is a report, that report tnubt follow a

Coiiiiiiissio~~, and, of course, precede a suit foundrd thereon : but the word “ pro-

ceeding ’’ comes in the 20th section after the word ‘‘ suit.” The 13th section, cer-

tainly, enables a Bishop t o dispense with a report froin Commissioners, so chat

there may be a suit under the Act without a report, and, probably. also without a

Comnnrission. -4s to the word (‘ or ” occurring between ‘‘ suit ” and ‘( pi-oceeding,“

i n the 20th section, it is not, perhaps, immaterial to bear in mind the various pur-

poses to which (( or ” is applicable in the English language. The word ‘‘ proceed-

ing ” is, as a substantive, used in two other sections (the 17th and 23rd) ; the word

“ proceedings ” i n the 7th, 13th, and 14th sections, and elsewhere in tlie Act.

In the 7th section, the word ‘I proceed ” seems to deserve attention, as may also

the expressions “ preliminary ” and “ further ” in the 4th section ; and per-[338]-

haps i t is worth while to notice that the 17th section seemingly employs “ procerd-

723

XI MOORE, 339 DITCHER v. DENISON [ 18 5 71

iiig ‘’ in opposition to “ inquiry,” and to remark the purpose to M hich “ ~ J ~ O C T ~ ~ I I I ~ ”

is applied in the latter half of the 20th section. The expression “ for aiiy offence ‘’

in that section inust also be considered in couiieetioii with the 3 rd section, mhicli

may, without a ‘( charge,” be brought into operation and activity up011 riiinaur

merely : for so we suppose iiiust be interpreted the words “ scandal or evil report. ’

Possibly, however, ‘‘ Cornmission ” 01“ “ proceeding by Commission,’’ or ‘‘ proceeding

Ly way of Conin~issioii,” may be the mealring, or one meaning, of “ proceedilig ” iii

the 20th section; a readiiig which, if it does not require, does not pioliibit the

attributing to the Act an ilitentioli that a suit should not, 111 any case. Ije 20111-

ineuced after the eiid of the two years. If the framers had tha t iiiieiition, they

iii;iy well have deemed i t prudent to forbid (not merely by implication) the issuiug

of a Commission under which no report could bring a n erring o r a slaiidered clergy-

inail for conviction or acquittal before a n Ecclesiastical Judge. Having, with S L ~ I

aid as these and sonw other considerations might afford, weighed the whole of tlie

Statute (not, of course, without refeieiice to the i’articular nature of the subje-ts

xiill which i t is coiiceriied, and the state of tlie law on those subjects i i h it stood

inmiediat ly before tlie paasiiig of the Statute), their Lordships (differing, as ihey

apprehend, on this poiiit from the Most Iteverelid Prelate, aiid one, a t leaqt, of His

Grace’s Assessors) have come to the conclusion, that the phrase ‘‘ every suit or 1)ro-

ceediiig ” in the 20th section, unlesa the phrase nieans “ every suit ” merely, aiid

riothiiig else, iiieaiis ‘‘ every suit and every pro-[339]-ceeding-,” nor less nor more .

(As if, iii effect, instead of ‘‘ every suit or proceeding ” ’‘ shall be coniiiienced ~ i t h i i i

two years,’’ ‘‘ and iiot afterwards,” the Act had said ‘‘ not any suit, 1101- any lpro-

ceediiig ” “ shall be coinnieiiced, unless within two years,” and had omitted ‘* : rid

,lot afterwards.”) Their Lordships cousider also that the words “ suit or proceea-

ing, where tliey occur secondly, thirdly, fourthly, aiid fifthly, in the 20th sectioii,

inust be Loristrued of course by alialogy to the construction proper to be put on tlie

three words where they firat occur in that section.

Before entering on the next question, tha t relatirig specifically to the decree o r

sentence under appeal, it may be well to observe that, notwitliataiidiiig the loose and

inaccurate language to be found in the Act, tlie Legislature, as their Lordships

think, has iiiade a sufficient distinctioii between a ‘‘ Suit,” properly so called, and

tlie preliiiiiiiary inquiries out of which a suit iiiap arise. A Clerk iiiay, illdeed. witli

the concurrence of his accuser, obviate the necessity for a suit by aul)niitting to

a sentence on the result of the preliminary inquiries; but, unless lie tliiiiki fit to do

so, he has a right to have the case against him decided, crciindtcrri nlle

butt/ , in a suit regularly constituted.

This ‘‘ cause ” (so i t is teriiied in sectioit 11) may either be heard before tlie Bishop

with Assessors or may be sent by Letters of Request, to the Court of the Arclibishop.

But it is hardly denied that, if the matter be sent to the Archbishop’s Court, the

suit is not comnieiiced before tlie service of the citatioii ; mid, if so, i t seems to follow

that, if the sui t be before the Bishop, i t must be held to coninieiice with the [340]

proceeding before that Tribunal which is most analogous to the citation in tlie

Archbishop’s Court ; for tlie Legislature can hardly have intended that tlie period

limited for the institution of the suit, should vary according to the Court ,in which

i t is heard. We then come to the question, whether the “ suit ” in whirli TT as pro-

nouuced the decree or sentence of deprivation l)ronounced ut Bath iii tlie year 1856,

wac: ‘‘ commenced within two years after ” the offence, o r any offence iii iespect of

which tlie ‘‘ suit ” was (‘ instituted, and no1 afterwards ; ” or, in other words, n hetliei.

tliere was a ‘‘ suit ” “ coiiimenced witliiii two years after ” tlie Respiident liad

committed any offence, or the imputed or alleged offence, charged agaiuat hini.

This question, stated in the ternts tha t have been used (because the decree oi

sentence of deprivation was made, was pronounced, in a ‘‘ suit,” and could have 110

validity unless made in a “ su i t ” or pronounced in a “suit,”-aiid liecause i f

unade or pronounced in a n ill-founded suit, i t cannot stand)-is one for the pur-

pose of which their Lordships have been, and are, by the state of the evidence and

the admissions, indeed, of the parties, enabled to dismiss from consideintion, :IS

Sir John Dodson was enabled to dismiss every, if any, such enunciation of hetero-

dosy-every, if any, such offence, as has taken place on the par t of the Respondent

7 24

. ..

DITCHER v. DENISON [ 18 5 71 XI MOORE, 341

since the year 1853. His conduct i n and siiice the year 1854 it is agreed that we

must, and we accordingly do, regard as ~vliolly immaterial. If, therefore, the suit

in controversy was not commenced before tlie year 1856, it mas ill-commenced, and

the decree or sentence of deprivation must fail. Now, the Commission was issued

iii the year 1854; the report was made and registered in the [341] year 1855 ; the

articles were filed in August, 1855 J and tlie service of a copy of tlreni oii the Ke-

spondeiit took place also iii August, 1855 : but iiot until April, 1866, or later, was

there aiiy citation of him, or any requisition for him, to appear before aiiy Judge,

or to appear anywhere. Tlie Appellant’s Counsel, however, have coiiteiided, that

the Itespoiident was deprix-ed, in a “ suit or proceeding ” whicli they say was coni-

rnenced by the Conimission, or by what took place between tlie Coriiiriisnion tilid

report, or 1)y the report or its registration, or by the filing of the articles iii

August, 1855, or by the service in tha t month of a copy of tliose articles 011 tlie

Respondelit. Their Lordships, however, itre of opiiiioii with S i r Joliri Dodsoii,

that this proposition is untenable. The report was not, the inquisitioii. or ill-

restigatioii under tlie Commission, mas not, nor was the Comiii issiori, nor was tlre

Appelltint‘s application to the Archbishop for a Commission, a suit, or the comirieiice-

ment, or m y part , of a suit. The Commission and the iiiyuisitioii or investigation

under it, were merely steps for obtaining the opinion, aiid the report mas iiierely

tlie opiiiion so o,btained, of five clerical geiitlemeu, iii tlie selection of riot, one of

whoiii liacl the proposed Reus a voice, wlicther tliere was primu f n c i e ground f o r

instituting :I suit. Neither tlie report made, iior aiiy report capalile of beiiig iriede

linder i l i e Coiiiiiiission; 1 1 0 registration of the report, or of any repor t ; 110 a p

proval of it, amounted, or could have aniouiited, t o aii adjudication of heresy or’

error of any Iriird against the lteapondent. He could not lawfully, before tlie year

1856, have been deprived, puiiislied, or cerisiired without liis consent, iior in, iior

after ttie year 1856, was it, independently of vliat took place in April, lP56, o r

tlie fo11owiIig [342] inoiitli, possible, witliout his consent, to deprive, 1)uiiislr. o r

censure him .

Then, ihs t o tlie filing of the articles in August, 1855, and the service iii the

same inontti of a copy of them on tlie Respondent, each of these steps lie was err-

titled to disregard until served with a citation or requisition uiider the 9 th sectioii

of the Art. in tlie manner directed by tlie 10th section ; as loiig as tliere wits no such

service of a citatioii or requisit ioii, tlie articles (though preveiiting Letters o f

request) TTere, in truth, as against Iiirn, LL nullity. Tlie articles--iioi iiitituled iii

aiip Court. iiot headed, ended, or described, as belonging to or connected with any

Court, purported i o proceed from the Arclibisliop, a s ” l’riiiinte of all Engleiid, aiid

Metropolitan.” They did no’t cite, coninia,iid, require, or invite the Respondent’s

atteiidaiirc or appearaiice in any Court, or a t iiiiy place or time, nor liad any date

of place or time J nor in fact until soriie time after March, 1856, was tliere any cita-

tion or requisition such as directed by the 9th sectioii, or sucli as to require or iiiakcs

necessary aiiy appearance or attention upoii tlie pikrt of the Archdeacon, o r to

render a u y such step material for his protection or to his interest.

And tlieir Lordships, though iii the present instance differing t o soiiie esteiit

froni tlic very able Judge who advised the Archbishop on the occasion of tlie Bat11

sentence, t y p e in tlie opiiiion tlieri declared 1)y that eiiiiiieiit lawyer, tha t tlie word

“ suit,” used in the, 20th section, “ n-leans a suit in tlie Arches Court, or aiiy otlier

Court of t l i n t description.” Dr. Lushingtori added tlie words (‘ properly ansmeriiig

to the terrlrs in mhich i t is espressed; ” but lie did not, we believe, by those words

intend i o cliaiige the sense [343] of wliat iimiiediately preceded tlieni. And, if

we do not, think with hini that (to borrow again his language on tlie same occasioir)

(‘ in n suit in the Court of Arclies, ttie issuiiig of tlie citation is tlie corrirneiiceiiient

of the suit,” we tliiiik that tlie service of tlie citatioii is so.-[His Lordship Iicre

referred to the j u d p e i i t of the Right I-Ioii. Dr. Lusliiiigton, a t Bath, xliicli x a s

iiirludrd in tlie trairscript of tlie proceediiig~-Tlie espression, however, “ tliiiik

witlr l\iin,” that 1 tiaye iiwd, may be not exactly c2ccUrilTe ; for considering the cases

of Z t ~ g T. .S / /e~ . i i~wd (1 Curteis, 173), arid J S h e i w m l T. Rriy (1 Moore’s I’.C. Cases,

353). a11d the adiiiitted course of the Errlcsiasticnl Courts at Uoctors’ Coiiiruons.

their Lordsliips deein it likely, that in ilie passage just read, from the judicial

opinioii dtxlivered at Batli, ‘‘ service ” was said or iiiciiiit in the place of ‘‘ issuing ”

c ‘) - i

XI MOORE, 344 DITCHER u. UENISON [ 18571

where the latter word occujs. The circumstance that, by the 13th section of the

Act, Letters of Request are prevented from issuing after articles filed, as mentioned

in the 7th section, does not appear to us to make the articles, or the filing of them,

or the service of a copy of them, the conimencenient of a suit. They may, by the

aubaequeiit service of a valid citation, or requisition, be drawn down, in effect, to

the date of that service, but cannot, as we conceive, bring up that service to an

earlier date.

The rule, or maxini, ‘( Sempei a t ) dubau benigntola praeferenda,” is, we believe,

as t rue in the law of England as it was in the Eiomari law, and the Statute before us

is at once a law of criminal procedure as to the offences to which it relates, and a

Statute of Limitations as to penal prosecutioiis. With reference to that character,

the presuinption or inclination, [344] where presumption o r inclination can find

place, ought to be, as their Lordships conceive, not against, but in farour of, the

person charged with a n offence, and sued penally under it.

And their Lordships are of opinion, that they construe the 20th section con-

sistently with the rules and idiom of the English language, and ‘‘ omni conaiderata

scrzptu~a,” agreeably to the spirit and general intention of this Act of Parliament,

by holding, as they do, with the learned Dean of the Arches, that a suit was not

instituted by the application for the Commission, or by the Commission, report,

and articles, or by any one or more of them, or by the service of the articles on the

Respondent ; that the suit consequently, in which the Bath judgment was pronounced,

was not commenced, was not a ‘‘ proceeding ” begun, before April, 1856 ; tha t the

Respondent not having been proved to have committed any offence after the year

1853, there was accordingly no suit commenced within the time prescribed by the

20th section; that the Commission and report fall to the ground, therefore, and

become wholly worthless; that every proce,eding, if any, as existed before June, 1856,

having thus, before June, 1856, failed, and become extinct, no such proceeding

was capable of supporting or assisting anything done in or after June, 1856 ; and

that as the necessary result of such a state of things, the proceedings against him

subsequent to the year 1856, were altogether groundless and bad.

We are not unaware of the inconvenience possible to arise from unavoidable

delay between the issuing of a Commission and the making of a report under it,

according to our reading of the Act ; but neither can we avoid seeing the mischief,

equal or greater, as we [345] think, likely to arise, from holding that a penal suit

may be instituted against a clergyman, founded on a report made twenty yearb

before it. The Court of Queen’s Bench possibly has, and possibly would exercise,

the power of interfering, a t the instance of an accused clergyman, in a case of long

inaction, after the end of the fourteen days mentioned in the 8th section. That,

however, is a point on which tlieir Lordships think that they may well, and ought

to, abstain from intimating any opinion. It may be added, with reference to the

Letters of Request mentioned in the 13th section, that i f they can be issued without

a Commission, but not after the two years, or if the suit in the Court of appeal of

the Province under the Letters of Request must be commenced within the two years,

i t is difficult (if not impossible) t o conceive that i t was intended that a private

prosecutor or promoter, or even the Bishop of the Diocese, should be allowed an

unlimited time for commencing a suit after a Comniission and report. Construing

the language of the Statute, as I have said, we feel somewhat less diffidence in

differing from so high an authority as the learned Judge of the Consistory Court

of London, than we otherwise should do, by reason of the early paragraphs (especially

the second paragraph) of tlie opinion delivered at Bath by him, in favour of holding

tlie Appellant not barred of his prosecution, by lapae of lime.

It seems to be a just inference that the learned Judge was precluded from taking

time for deliberation; nor is this all that tends to diminish our self-distrust. There

is the weighty judgment now Ilefore us of that experienced and well-informed

ecclesiastical lawyer, the present Dean of the Arches, and there are [346] previous

jriclicinl opinions entitled to much corlsideration and respect, with wliich that

juclglnent agreed: We may instance the cases of T h e Uzshop of Lincoln. V. Day (4

Sotes of Cases, 290), and Brookes v. CressweU (1 Roberts. Ecc. Rep. 606)) and that

of The Bishop o t Hereford v. T--n ( 2 Roberts. Ecc. Rep., 595, where probably by

the way, a t p. 605, the word “ issuing ” should be “ serving ”), respectively, before

726

F ~ N ~ ~ ~ 9, ~ ~ I ~ ~ ~ N [18s8] XI ~ O O R ~ , 347

Sir Herbert Jenner Fust and Sir John Dodson hiniMelf, t o which, perhaps, may be

added Monckton’s case (3 Notes of Cases, Suppl. p. lv.) before Dr. Lushington.

For the reasons tha t have been now stated, it i s their Lordships’ intention to

report to Her Majesty that, i n tlicir judgi~~ent , he present appeal should be dis-

missed, but without co&. Of course i t is understood that upon the question of

~ ~ e t e r o d o ~ y , the question whether the ~esp.ondei~t has at any time uttered heretical

doctrine or conimitted any e c c l e ~ i ~ ~ s t i c a ~ offence, their Lords~~ ips have i n t i ~ a t e d

no opinion.

[News’ Dig. tit. ~ C C ~ E S ~ A S T ~ C A L LAW ; XX17111. PRACTICE AND PROCEDUBE ; 1.

~ a ~ ~ r ~ ~ ~ ~ . See ~~~~~~~ v. Simpsom, 1866, L.R. 1 Ad, and

E. 281 ; Sheppard v. Bennett, 1869, 39 L.3. Ec, 1 ; Ray. v, Oxford (Biskop of) ,

M i 9 ; 4 Q.U.D. 549; JuSitw T. ~~~~~~~ ( B ~ ~ ~ t ~ ~ ~ ~ of), 1x80, 5 A,@. 217.1

S.C. 6 W.R. 342.

E3473 ON APPEAL FROM THE SUPREME COURT OF VAN

DIEMAN‘S LAND,

MICHAEL FEKTOK and JAMES FRBSER,-A?~z~elZalats : JOBR STEPHEN

H ~ ~ P T O N , - R e ~ ~ o n ~ e ~ ~ * [Feb. 3 and 4, 18581.

The “ Lex et consuetudo I’arlinmenti ” applies exclusively to the House of Lorda

and House of Commons, in England, and is not conferred upon a Supreme

Legislative Assembly of a Colony, or Settlement, by the introduction of the

Commor~ Law of ~ n ~ l a n d into the Colony L11 Moo. P.C. 3971.

No distinction in this respect exists between Colonial Legislative Councils, and

Assemblies whose power is derived by grant Prom the Crovn, or created

under the authority of an Act of the Imperial Parliarnent 111 Moo. P.C.

3977.

Iieillny’v. car so^ (4 Moore’s P.C. Cases, 63) reviewed and upheld [I1 Moo, P.C.

395, 3961.

This was an action of trespass brought in the Supreme Court of Van Dieman’s

Land by the ~6spondent , the ~ O ~ i ~ t r ~ I ~ ~ r - ~ e n e r a l of convict6 in tha t Island,

against the Appellants, Fenton, the Speaker, and Fraser, the Serjeant-at-Arms,

of the ~ g i s ~ a t i ~ e Council of Van Dieman’s Lmd. The declaration compla ine~~

that the Appellants unlawfully nsmultcd, seized, and imprisoned the Respondent,

The Rppeliants served in their defences, but respectively pleaded special pleas of

justification, setting forth, in substance, the following material ftkcts ; tha t before

and during the aileged wrongs, a Session of the Legislative Council of the Island of

Van Dieman’s Land was being holden at Hobart Town, in tha t Island. That the

AppeIlant, Fenton, was a member and the Speaker of tha t Council.

That the Appel~ant, Fraser, was the Se~jeant-at-Ariiis attending E3481 the

Council. That on the 14th of August, 1855, i t was resolved by the

Council, that a Select Committee of certain of its m e ~ i b ~ r s should, in ac-

cordance with the standing Rules slnd Orders of the Council, be appointed to inquire

into and a c e r t a i n the t ru th of certain alleged abwes in the Convict Department,

the same being matters within the province of the Council to inquire into and

ascertain by means of such Select Committee. That on tha t day the Select Cbrxl-

mittee was duly appointed in pursuance of tlze resolution. That before the

wrongs, in the declaration alleged, i t was resolved by the Council, that the Select

Committee should have leave to send for persons i n reference to the inquiry. That

Thomas George Gregson, a member of the Council, was duly appointed and elected

Chairmen of the Select ~ o ~ i t t ~ e . That the R e s p ~ n d e n ~ was a material and

riecessary witness i n the inquiries, and tha t he had notice of all the premises,

That the Chairman duly summoned the Respondent personally to appear before the

* Present: The Right Hon. The Lord Justice Knight Bruce, the Right Hon.

T. I’einberton Leigh, the Lord Chief Baron of the Exchequer (The Right Hon. S i r

Frederick Pollock), and the Rig& Eon. The Lord Justice Turner,

727

I_ _-_ __ _ ~ _ _ I _ -- - ~ -- - ___- ~ i _ _ _ _ l __I_