CO885-(10-11) — Page 79

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PUBLIC RECORD OFFICE

C.O.

Reference :-

· 885

ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-

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PUBLIC RECORD OFFICE, LONDON

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contrary to law, or even the determination of the case contrary to the evidence, or in the absence of any evidence to warrant the conclusion.

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prohibition" or It is indeed possible that the Supreme Court might by "mandamus" to a certain limited extent, and under certain special circumstances, interfere to prevent an entire failure of or violation of justice; but the 22nd section will prove a serious obstacle to any such interference, and as the bishop has by the Ordinance complete legal jurisdiction both over the subject matter and the party charged, and is constituted sole judge of the facts, as well as of the law applicable thereto, he may in effect be said to have the power of dealing with each case almost at his personal discretion.

There seems to me no reasonable ground in point of abstract reason or justice for thus making the determination of the bishop final and conclusive without any appeal.

The Attorney General suggests no such ground, and I am not aware of any satisfactory precedent in the English ecclesiastical or civil system of jurisprudence. The Ordinance is, at all events on this point, directly at variance with both the ancient and modern Anglican law, practice, and statutes.

had been differently constituted, or if any appeal If, indeed, the tribunal “a quo' whatsoever had been provided, many different and peculiar considerations might have been applicable to the Ordinance, but the only argument which is in effect put forward for that portion of the Ordinance which deprives the clergy of all appeal whatsoever is the difficulty felt in the Colony to determining to what authority such appeal should lie. All concerned in the measure seem to have thought there should be some appeal, but inasmuch as they could not agree whither it should lie, they "cut the matter As far as jurisprudence is short" by deciding that there should be none whatever. concerned, nothing can be more indefensible, and such conduct only shows how unfit the Colonial authorities are to legislate for themselves on such subjects as this. In effect, however, I do not understand either the Governor or the Attorney General seriously to contemplate any such result as that which must ensue from the unqualified operation of the Ordinance "per se," for they suggest that an Imperial Order in Council should be passed giving an appeal (in all cases, I presume) to the Judicial Committee of the Privy Council (or rather to Her Majesty in Council): they do not, however, intimate that this course was considered, discussed, approved, or even con- templated by the Court of Policy in passing this Ordinance, or by the bishop, or the clergy, in assenting thereto; there is, indeed, nothing to show how the question of appeal was received or treated by the bishop and clergy.

However this may have been, I am unable to offer any opinion on the attempt by the Colonial authorities to leave it to Her Majesty's Government to determine this important question, either contrary to the real intention and decision of the Court of Policy, or as supplying what that Court may have, with this view, left undetermined. The course thus suggested appears to me inconvenient, if not open to more serious objection.

If I am to deal with the Ordinance "simpliciter" and as it stands, I have no hesitation in recommending your Grace not to advise Her Majesty to confirm this Ordinance, on the ground of the absence of any recognition of a provision therein for any appeal whatsoever from the Bishop's decision contrary to the provisions of the Bishop's Patent, and to the letter and spirit of all Ecclesiastical Law "in priori materia."

Your Grace is doubtless aware that in the Patent of the Bishop of Guiana as in other Patents of Colonial bishops, express provision is made for an appeal from any In the case of auch judgment, decree, or " sentence" of that prelate to the Archbishop of Canterbury, who is in such cases "finally to decide and determine the said appeal."

an appeal the Bishop is, moreover, without delay, required to certify and transmit to his Grace a copy of the judgment or sentence, and of the evidence on which it was founded. The Ordinance is thus in direct contravention of the Patent, as to which instrument issued under the Great Seal of England it contains no saving clause. It may be the fact that the Patent alone may not be found practically effective or adequate to the object in view, but it, at all events, clearly shows the deliberate design and intention of the Crown in such matters, and I may add that every beneficed clergyman in England and Wales, has (as the Attorney-General must know) the right of appeal from every sentence of the (Consistory) Court of the Bishop to that of the Archbishop (Arches), and from such Court to Her Majesty in Council, who refers all such appeals to the Judicial Committee, which reports thereon to Her Majesty, who decides the case in the last resort.

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It is now under the consideration of such Committee whether every stipendiary curate has not by law the same right of appeal from the revocation of his license, upon which question the Lord Bishop of London has been formally "cited" under pain of contempt before the Committee.

Poole v.

Bishop of London

I am, therefore, wholly unable to see how, under these circumstances, Her Majesty, (now pend- who is "in all ecclesiastical causes within her dominions supreme," can consistently or ing). constitutionally assent to this Ordinance.

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may add that having regard to the peculiar circumstances of the case, to the 30th section of Ordinance, to the provisions of the patent and of the general eccle-iastical law, and to the metropolitical and Royal rights in relation to ecclesiastical appeals, serious and difficult legal questions may arise as to the extent, effect, and operation of the Ordinance, if assented to by Her Majesty, and that even in this event, it is not impossible that the right of appeal may be resorted to and maintained, but this is no justification for this Ordinance. The St. Vincent's Act, objectionable as it was, assumed to give or retain, an appeal to the Archbishop of Canterbury in person.

If, therefore, the Royal Assent should be given to this Ordinance, the right of appeal should at all events be secured by Order in Council, as suggested by the Governor and Attorney General, on the supposition, however, that this peculiar mode of supplemental or separate Imperial legislation is valid and competent to Her Majesty as to British Guiana; upon which I can offer no opinion.

I do not wish to be understood as advising this course, I only advert to it as a possible mode of mitigating in some degree the injustice and mischief to which the "will give rise, in the event of your Grace feeling compelled by Ordinance "per se political necessity to advise Her Majesty to assent to it.

I must, however, further point out that there are several important and objection- able differences of detail between the provisions of this Ordinance and the provisions of the 3 & 4 Vict. o. 86. (“An Act for the better enforcing Church Discipline,”) for which I can find no sufficient explanation in the Governor's letter or the Attorney General's Report; and I need scarcely advert to the serious results which are to be apprehended from any experimental or novel legislation, or any wide departure from ancient usage and precedent in "matters ecclesiastical."

Thus the words in section 2 of the Ordinance "any immorality or other act or con- "duct unbecoming the character of a Christian minister," and "gross and habitual neglect of ministerial duty," are not only widely different from the words "offence "against the laws ecclesiastical" in the third section of the statute, but may be not unreasonably said to "alter the law" and to create new species of ecclesiastical offences.

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So the words in the third section of the Ordinance as to "the belief of any person "that any clerk has been guilty, &c." are widely different from those in the third section of the statute "concerning whom there may exist scandal or evil report."

The existence of "scandal or evil report," fama (common fame) as to the conduct of a clerk as distinct from his actual guilt has been ab antiquo, and still is and rightly, a reasonable and legitimate ground of ecclesiastical inquiry and proceeding against him, but the Ordinance (for the first time) introduces and makes "the belief "of any person" sufficient ground for such proceedings.

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After adverting to these extraordinary legal experiments it is scarcely worth while to notice minor defects, but I observe that whereas by the statute sections 7, 8, and 9 articles" [ie. an appropriate instrument, of special form long in use and well understood in ecclesiastical courts], are to be drawn up, signed by counsel, and served on the party charged, the Ordinance (section 10) introduces a very different and peculiar form of instrument for the purpose called a "presentment," which is in effect to be the "indictment" or written charge upon which the party charged is to be tried.

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There is no provision ensuring to the party charged the opportunity of formally pleading" by way of defence or answer, nor any sufficient direction as "to making

" "the issues (whether of law or fact), or as to the mode of up a record" settling

procedure" in general. These defects (it is true) are to be found in the statute also, but they have turned out to be so serious in practice as to defeat the intended operation of that portion of the statute, and to compel the English bishops in practice to resort to the Ecclesiastical Courts, where every party charged has the most ample opportunity for making his defence "by plea and proof." The words of section 13 of the Ordinance not only do not ensure any adherence to the procedure and pleading of the Supreme Court, but seem to be carefully framed with a contrary intent, referring expressly only to the