HOUSE OF LORDS
THE REV. ALEXANDER H. MACKONOCHIE, APPELLANT;
THE RIGHT HON. LORD PENZANCE AND JOHN MARTIN, RESPONDENTS.
Also reported as: 6 App.Cas. 424
COUNSEL: Mr. Arthur Charles, Q.C., and Dr. W. G. F. Phillimore, for the Appellant.
Sir Hardinge Giffard, Q.C., Mr. Blakesley, and Mr. A. L. Smith, appeared for the Respondent.
SOLICITORS: For Appellant: Brooks, Jenkins, & Co.
For Respondent: Solicitor to the Treasury.
JUDGES: The Lord Chancellor (Lord Selborne), Eearl Cairns, Lord Blackburn, and Lord Watson.
DATES: 1881 Feb. 18, 24, 25, 28; March 1, 8; April 7.
Ecclesiastical Court – Prohibition – Definitive Sentence – Monition – Subsequent Enforcement of the Monition.
In 1874 a suit was instituted by letters of request in the Arches Court, according to the provisions of the 3 & 4 Vict. c. 86 (the Church Discipline Act) against a clerk for unlawful practices in the performance of divine service. A sentence of suspension ab officio for six weeks was pronounced against him, and he was monished not to repeat the practices. He did repeat them, and was again admonished. He continued to repeat them, was twice summoned before the Court to answer, but did not appear; and in June, 1878, the Dean of the Arches pronounced, decreed, and declared that the acts alleged to have been done by the clerk, had been fully proved, and that in so doing he had repeated the offences alleged against him in the articles exhibited against him in this suit, and had thereby disobeyed and contravened the monitions served upon him. For which disobedience the Judge did pronounce him to have been guilty of contumacy. And for the conduct aforesaid the Judge did farther decree and declare that he should be suspended ab officio et beneficio for three years:
Held, that this was a matter of ecclesiastical procedure alone, and was not, therefore, the subject of a proceeding in prohibition.
The suspension was only a step in the proceedings which had been regularly instituted in 1874, and was in itself perfectly regular.
Per LORD BLACKBURN: The temporal Court, proceeding in prohibition, is not bound by a decision of even the highest Court of Appeal in ecclesiastical matters.
Martin v. Mackonochie (1) and Hebbert v. Purchas (2) approved.
ON the 1st of June, 1874, the Appellant was cited to appear in the Arches Court of Canterbury in a suit instituted upon letters of request from the Bishop of London, and promoted by Mr. Martin, of 2, New Square, Lincolns Inn, within the diocese, according to the provisions of the 3 & 4 Vict. c. 86. On the 7th of December, 1874, Sir R. Phillimore, then Dean of the Arches, pronounced a decree in the suit declaring the articles charged to have been
(1) Law Rep. 3 P. C. 409.
(2) Law Rep. 4 P. C. 301. [*425]
proved, and ordering the Appellant to be suspended ab officio for the space of six weeks, and he was also then and there admonished to abstain in future from the practices complained of. There was an appeal against this decree (the execution of which was thereon suspended) to Her Majesty in Council, but the appeal was abandoned before hearing. The decree accordingly revived, and on the 12th of June, 1875, the Appellant was served with a monition in accordance with the decree. The decree with the monition was duly served on the Appellant, but no farther proceedings were taken in the suit till the 18th of March, 1878, when a notice of motion was filed and duly served upon the Appellant, alleging him to have been guilty of renewing the practices from which he had been admonished to abstain, and therefore asking that the monition might be enforced. The hearing on this motion was appointed for the 23rd of March, 1878, but the Appellant, though duly called, did not appear. The Court then pronounced that he had been guilty of continuing the condemned practices, and farther admonished him to refrain therefrom. On the 29th of March, 1878, the farther monition was accordingly served on the Appellant, who did not appear thereto, but did continue the condemned practices. A notice of motion for the enforcement of the monition was served on the Appellant, who was required to appear thereto on the 11th of May, 1878. Though duly called in Court he did not appear, and the matters alleged in the petition having been proved, Lord Penzance, who had, since the date of the first decree, been appointed Dean of the Arches, pronounced judgment declaring the allegations of disobedience to the monition proved, and the Appellant to have been guilty of contumacy, and for such misconduct the Court declared that the Appellant be suspended for the space of three years, from the time of publishing the suspension in the Church of St. Albans, ab officio et beneficio.
On the 5th of June the Queens Bench Division granted a rule nisi for a prohibition, which was argued on the 27th and 28th of June, and, on August the 8th, the rule, in accordance with the judgments of Lord Chief Justice Cockburn and Mr. Justice Mellor(diss. Mr. Justice Lush) was made absolute (1). The case was taken to the Court of Appeal, where, on the 28th of June, 1879,
(1) 3 Q. B. D. 730. [*426]
Lord Coleridge and Lords Justices James and Thesiger held that the judgment of the Queens Bench Division must be reversed, Lords Justices Brett and Cotton dissenting (1). This appeal was then brought.
Mr. Arthur Charles, Q.C., and Dr. W. G. F. Phillimore, for the Appellant:–
The objection to what has been done in this case is not merely to the form of the proceeding, which might only be the subject of an appeal, but is to the very jurisdiction of the Arches Court, the lawful limits of which have been exceeded. The only proper remedy therefore is by a proceeding in prohibition. The title of the High Court of Justice to restrain all inferior Courts where they act in excess of their jurisdiction cannot be doubted, and this is a case in which that cause for prohibition actually exists. Two statutes have in fact been disregarded the 53 Geo. 3, c. 127, and the 3 & 4 Vict. c. 86. The former made a change in the old law. Instead of excommunication it provided that a sentence of contumacy should be pronounced. The contumacy would then, in a regular way, be signified into Chancery on which the power of Chancery would be set in motion, and imprisonment might follow, and obedience in that way enforced. That course had not been pursued in this case, but a totally different one, a punishment, that of suspension a beneficio, had been substituted for it, without any statutory authority giving warrant for the change. That was an excess of jurisdiction, and was ground for a prohibition. Then again as to another statute, the Church Discipline Act, 3 & 4 Vict. c. 86. The proceeding here was plainly and distinctly a criminal suit. That being so it fell within the provisions of sect. 23 of that statute, by which no suit except in conformity with its provisions should be instituted. A suit had been instituted in conformity therewith; but that suit had come to an end in December, 1874, when a definitive sentence had been pronounced. To that sentence a monition or warning had been added but nearly four years afterwards, namely, in June, 1878, without any new proceeding under the statute, a sentence of suspension a beneficio had been pronounced. That was entirely
(1) 4 Q. B. D. 697. [*427]
beyond the jurisdiction of the Court. The sentence itself shewed it to be so, for it declared that the Appellant had done certain acts, and that in so doing them he had repeated the offences which were alleged against him in certain of the articles which were exhibited against him. This was in effect to say that he had been guilty of anew committing the offences which had been the subject of the former suit. If so, he had again made himself liable to be proceeded against under the same statute. But that must be by a fresh suit. He had been already punished for what he had done before 1874, he could not be again punished for the same things punished a second time for his first offence, that was contrary to the spirit and principles of the English law. But if it was said that he had been guilty of fresh acts of ecclesiastical impropriety, the very phrase that they were fresh acts shewed that there must be a fresh proceeding against him in respect of them. In such fresh proceeding he would have, as all other persons had, the opportunity of denying the alleged acts, and of requiring them to be strictly proved, or of shewing that what he was charged with did not bear the character of ecclesiastical offences, and did not make him subject to punishment. To give a new, and a much heavier punishment than before, and to give it without a new charge, a new investigation, and a new opportunity of defence, was to violate the first principles of English law. And this very serious and alarming consequence was the necessary result of such a course it made an accused person liable to be punished not only twice for the same offence, but, in reality, subjected him for the whole course of his life to renewed punishments, renewable too from time to time, because he had once been declared subject to punishment. And that, too, although the first offence had had a particular punishment affixed to it, and that punishment, formally declared as a definitive sentence, had been fully undergone.
If it was said that the Appellant had been guilty of contempt or contumacy, the answer was, that the punishment inflicted was not the proper punishment for contempt, but for the ecclesiastical offences which had been alleged as the ground for the suit in 1874. Here the punishment was suspension for a fixed and settled time; but punishment by suspension ab officio for contempt [*428] or contumacy could only properly be inflicted as a means of compelling obedience to the authority of the Court. The punishment for contempt or contumacy ought to be capable of being brought to an end by an act of obedience. That was not so here, for no submission could vacate the positive sentence of the Court that the Appellant should be suspended a beneficio for the space of three years. The punishment therefore did not bear the character assigned to it, but was one of a wholly different sort, and was not warranted by the statutes.
The very numerous cases and authorities quoted in the Court below, were again referred to. They will be found discussed at large in the judgments.
Sir Hardinge Giffard, Q.C., Mr. Blakesley, and Mr. A. L. Smith, appeared for the Respondent.
THE LORDS did not call on the Respondents counsel, but took time to consider whether it would be necessary to do so – and finally proceeded to pronounce judgment without hearing them.
THE LORD CHANCELLOR (Lord Selborne):–
My Lords, the Appellant in this case is a clergyman of the Church of England, beneficed in the diocese of London, who, in a suit duly instituted in 1874, in the Arches Court of Canterbury, by letters of request from the Bishop of London, according to the Church Discipline Act (3 & 4 Vict. c. 86), was charged with certain offences against the law ecclesiastical, consisting in the introduction of unauthorized ceremonies during the performance of divine service in his church. At the hearing on the 7th December, 1874, Sir Robert Phillimore, then Dean of the Arches, held certain of these charges to be proved; and by an interlocutory decree, having the force of a definitive sentence, ordered the Appellant to be suspended ab officio for six weeks, and admonished him to abstain for the future from the practices set forth in the articles which were held to have been established. Notice of appeal was given, but was afterwards abandoned; and on its abandonment, a formal instrument of suspension, to be published in the Appellants church, was drawn up and issued under the [*429] seal of the Court on the 12th June, 1875, by which it was notified that the Appellant had been suspended for six weeks from the discharge and execution of all the functions of his clerical office within the province of Canterbury, under pain of the law and contempt thereof. At the same time (by a separate instrument) a formal monition also under the seal of the Court was issued and served upon the Appellant, by which he was admonished to abstain for the future from the practices set forth in the articles pronounced to have been proved, also under pain of the law and contempt thereof.
Down to this point the proceedings are now admitted to have been regular and proper according to the course of the Ecclesiastical Courts. In the Queens Bench Division of the High Court of Justice this was not admitted; on the contrary, it was then contended that it was not competent for the Court of Arches to superadd monition to suspension; and this view, being adopted by the late Lord Chief Justice of England, formed part of his reasons for granting a prohibition.
After a lapse of nearly three years, on the 18th March, 1878, a notice of motion in the same cause was filed and served upon the Appellant, charging him with disobedience to the monition of the 12th June, 1875, in the particulars therein set forth, on certain days in each of the years 1875, 1876, 1877, and 1878; and intimating that the Court would be asked on the next Court day to enforce the monition and to condemn the Appellant in costs. A motion pursuant to that notice was made, the Appellant not appearing; and (the alleged instances of disobedience having been proved by affidavit) the Judge of the Arches Court on the 23rd March, 1878, pronounced and declared that the Appellant had failed to obey the said monition in not having abstained from the following practices, acts, matters, and things (specifying them); and that he had continued the said practices, acts, matters, and things; and admonished him to abstain from them for the future and condemned him in costs. Pursuant to this sentence a farther monition, under pain of the law and contempt thereof, was issued on the 29th of March, 1878, and served on the Appellant.
On the 18th April, 1878, another notice of motion (similar [*430] to the former) was filed and served on the Appellant, alleging farther acts of disobedience since the service of the farther monition; and, after motion made, pursuant to this notice (the facts being proved by affidavit, and the Appellant again not appearing), the Court, on the 1st of June, 1878, pronounced, decreed, and declared, that certain acts alleged to have been done by the Appellant on the 31st March and the 7th April, 1878, in the performance of divine service on those days, were sufficiently proved; and that in so doing, he had repeated the offences which were alleged against him in certain of the articles exhibited against him in this suit, and declared by the Court to have been sufficiently proved, and farther had therein and thereby disobeyed and contravened the monition served upon him on the 26th July, 1875, and also the farther monition served upon him on the 29th March, 1878. For which disobedience the Judge did pronounce him to have been guilty of contumacy. And for the conduct aforesaid, the Judge did farther decree and declare that he should be suspended ab officio et beneficio for three years.
It was contended that this was a sentence of suspension, not for contumacy only, but also for new and substantive offences against the ecclesiastical law. But I cannot hold the finding, that the Appellant had repeated some of the offences with which he was originally charged, to be anything more than an introduction to a sentence for contumacy and disobedience to the monitions of the Court. The context of this sentence itself, the prior sentence of the 23rd March, the farther monition, and the notices of motion on which both those sentences were founded, make this, to my mind, clear.
Against publishing, proceeding with, or enforcing this decree of suspension, a rule nisi for a prohibition was obtained by the Appellant from the Queens Bench Division of the High Court, on the 5th June, 1878; which rule, after argument, was made absolute on the 8th August, 1878 the late Lord Chief Justice and Mr. Justice Mellor thinking the case one proper for prohibition, Mr. Justice Lush thinking otherwise. The Court of Appeal, on the 28th June, 1879 (by a majority consisting of Lord Coleridgeand Lords Justices James and Thesiger against Lords Justices [*431] Brett and Cotton), reversed this judgment of the Queens Bench Division, and discharged the rule for a prohibition. Whether this reversal was right, or not, is the question now before your Lordships. After hearing an elaborate argument from the counsel for the Appellant, for several days, your Lordships were (I believe) all under the impression that the judgment of the Court of Appeal was right; but, in a case in which there had been so much difference of opinion among very learned Judges, you desired to take time more fully to consider the arguments and the authorities cited. The result (so far as I am concerned) has been to confirm my original impression.
It was contended that the sentence of suspension of the 1st June, 1878, was contrary to two statutes of the realm (3 & 4 Vict. c. 86, and 53 Geo. 3, c. 127); and if this could be made out, the prohibition was rightly granted. But, if this is not so, the question resolves itself, simply and entirely, into one of the proper course, practice, and procedure of an Ecclesiastical Court, in a cause of which that Court had proper cognizance, against a person and in a matter properly subject to its jurisdiction. Such a question ought, in my opinion, to be determined in the ecclesiastical, and not (by prohibition or otherwise) in any temporal forum, notwithstanding the fact that, by a sentence of suspension a beneficio(which the Ecclesiastical Courts, and those Courts only, have power to pronounce), temporal rights, held by an ecclesiastical tenure, in consideration and upon the condition of the performance of ecclesiastical duties, are necessarily affected. Supposing no statute to intervene, the Ecclesiastical Courts must have jurisdiction to determine questions of this nature; and, if they have jurisdiction, prohibition does not lie to them from the temporal Courts. The remedy (if there be any error in judgment) is by appeal. In point of fact, the Court of Final Appeal in ecclesiastical causes has already three times had before it the very same question which is raised by the Appellant in this case; and has as often decided it adversely to the Appellants view. Whether those decisions might or might not be open to reconsideration, in any other case, by the Court which pronounced them, they ought, in my opinion, to be treated in the meantime, by this and every other temporal Court, as settling the ecclesiastical [*432] law upon the point in controversy, supposing there to be no other law or statute which they contravene.
The argument of the Appellants counsel from the Church Discipline Act (3 & 4 Vict. c. 86), was that it prohibits, by sect. 23, the institution in any Ecclesiastical Court, of any criminal suit or proceeding against a clerk in holy orders, otherwise than is thereinbefore enacted or provided; that, in this case, the suit against the Appellant, which was instituted in the year 1874 in conformity with that statute, was terminated and exhausted by the interlocutory decree, having the force of a definitive sentence, of the 7th December, 1874; that no subsequent proceeding, to enforce obedience to the monition issued pursuant to that decree, or to punish disobedience thereto, could be taken in the same suit; that every such act of disobedience was a new and substantive ecclesiastical offence, which could only be punished in a new and distinct suit; that no such new suit was instituted in the manner required by the statute; and, consequently, that all the proceedings in 1878, down to and including the sentence of suspension of the 1st June, 1878, were without jurisdiction.
The argument from 53 Geo. 3, c. 127, was, that it provided, instead of excommunication (which had previously been in use, for the purpose of enforcing obedience to the citations and lawful orders, both interlocutory and final, of the Ecclesiastical Courts, and for punishments of contempts in the face of those Courts), a sentence of contumacy, to be pronounced in the like cases, and to be signified after ten days to the King in Chancery, whereupon imprisonment was to follow; and that this statutory method thenceforth became and was the only way of enforcing obedience, or punishing disobedience, to such lawful citations or orders of any Ecclesiastical Court, in cases of contumacy or contempt.
In order to consider the validity of these arguments, (and for that purpose only,) it becomes necessary to ascertain (1.) whether before the statute 3 & 4 Vict. c. 86, a proceeding to enforce obedience to a monition or other order, contained in or issued pursuant to a decree of an Ecclesiastical Court having the force of a definitive sentence, could be taken in the same suit, without the commencement or institution of any new criminal suit or proceeding: and (2.) whether, before the 53 Geo. 3, c. 127, [*433] obedience to the lawful citations or orders (interlocutory or final) of an Ecclesiastical Court could be enforced, or disobedience thereto punished, by any ecclesiastical censure other than excommunication, and particularly by suspension? If both these questions ought to be answered in the affirmative, the arguments of the Appellants founded on these two statutes fall to the ground. It is certain that there is nothing, in 3 & 4 Vict. c. 86, to prevent anything being done either before or after sentence in a suit duly instituted in conformity with that Act, which, before the passing of that Act could have been lawfully and competently done in a similar suit, duly instituted. And the proceedings for contumacy, prescribed by 53 Geo. 3. c. 127, are thereby substituted for excommunication only; there is nothing in that Act to take away any power, which an Ecclesiastical Court might previously have possessed, to proceed in like cases by other modes of censure.
The ecclesiastical law, it must always be remembered, even in those proceedings which are called (and in some sense are) criminal and penal, has for its object, not the punishment of individual offenders, but the correction of manners, and the discipline of the Church. Monition (which is sometimes itself called an ecclesiastical censure) is described in the books as of a preparatory nature: Oughton, Ordo judiciorum (1); i.e. (as I understand the term) as a warning or command, to be followed in case of disobedience by some coercive sanction. It appears to have been a general (though not an invariable) rule of the canon law, that monition ought to precede suspension or excommunication: Gibson, Codes (2). It might be, and in practice it often was, issued (for various purposes) at the beginning, or during the progress, of an ecclesiastical cause; it also might be and sometimes was (as in the present case) the sentence or part of a sentence upon the merits, pronounced at the end of such a cause.
It was not disputed at the bar, that, if issued at the beginning or during the progress of a cause, such a monition might be enforced (by excommunication at all events, or since 53 Geo. 3, c. 127, by the procedure thereby substituted for excommunication) in the same suit, though it might be necessary to cite the party for his contumacy, and in some cases to exhibit articles as to
(1) Vol. i. Tit. 137, Obs. 3.
(2) Pages 1046-1048. [*434]
disputed or disputable matters of fact: see Oughton (1). I may refer, as an example of such a proceeding during the progress of a cause, to a monition for the payment of alimony pendente lite,issued in the case of Hamerton v. Hamerton (2), under pain of the law and contempt thereof: for non-compliance with which, a sentence of contumacy (followed by significavit) was pronounced, and in the opinion of Sir John Nicholl, would have been rightly pronounced if there had been such non-compliance in fact.
No reason à priori can be suggested, why obedience to a monition, issued as part of a decree having the force of a definitive sentence, should not be enforced in the same suit, as well as a monition in any earlier stage. Both the suspension and the monition issued on the 12th June, 1874, pursuant to Sir Robert Phillimores sentence in the present case, conclude (like the interlocutory monition in Hamerton v. Hamerton) with the words, (admitted to be proper words of style), under pain of the law and contempt thereof. Why should not this warning in case of disobedience, either to the suspension or to the monition, have the same meaning, and point to the same consequences, whether the sentence be interlocutory or definitive? Why should not the Court have the same power of dealing with disobedience and contumacy in the suit in which the contumacy takes place in the one case as in the other?
If authority on this point had been wanting, I should have thought that the burden of proof would rest upon the Appellant. But there seems to me to be abundant authority. There is a case as early as 1602 in Mr. Rotherys return (No. 10, Astill v. Bickles) in which a clerk against whom a final sentence of deprivation had been pronounced on appeal by the Court of Delegates, continued, notwithstanding, to officiate in the church of which he had been deprived. The same Court of Delegates decreed him to be cited for contempt, and inhibited him from interfering in the premises. In Trebeck v. Keith (3) (1741-2, of which the facts are stated, from the registry of the Arches Court, in Lord Justice Thesigers judgment in the present case (4)) an interlocutory decree having the force of a definitive sentence was pronounced,
(1) Vol. i. Tit. 31-35.
(2) 1 Hagg. Eccl. Rep. at p. 26.
(3) 2 Atk. 498.
(4) 4 Q. B. D. 720. [*435]
finding the offence with which the Defendant was charged (performing divine service without license from the bishop) proved against him, and admonishing him not to do so for the future. He disobeyed the monition; on which the Court, in the same suit, pronounced a sentence of excommunication against him for his contempt, which sentence was followed by significavit. Prohibition was then applied for before Lord Chancellor Hardwicke, who refused it; saying that the case was of as great consequence to the good government and discipline of the Church as could possibly happen, and that it was not necessary for the Ecclesiastical Court to shew that they had rightly proceeded, for, if they had not, there was a remedy by appealing to a higher ecclesiastical jurisdiction. In Burgess v. Burgess (1) (1804, a case of incest against a layman) Sir William Scott pronounced a decree having the force of a definitive sentence, by which he condemned the party in costs, and enjoined a cessation of intercourse; and added (2), If obedience be not given to this order, excommunication and other consequences will necessarily follow. In Austen v. Duggan (3) (1822) a layman was, by a like sentence, suspended ab ingressu ecclesi3┌4 for one week, and was condemned in costs. The costs were taxed, and a monition for their payment, duly issued and served, was not obeyed. The Court then pronounced the party in contempt for not having obeyed the monition, and directed a significavit to issue; which, having afterwards been discharged as irregular, a new monition was prayed for and granted; and, on this being disobeyed, there was a farther sentence of contumacy, also followed by significavit. The Judge (Sir John Nicholl) said, The Court is not functus officio till it has enforced the execution of its own decree. In Barnes v. Shore (4) (1846, a suit against a clergyman for officiating in a manner unauthorized by the Book of Common Prayer) the Defendant was, by decree having the force of a definitive sentence, admonished to abstain from offending again in like manner, and was condemned in costs. Sir Herbert Jenner Fust said, Should he be guilty of a repetition of this offence, it will be one, not only against his diocesan, but against the authority of this Court. In the Bishop of Winchester
(1) 1 Hagg. Cons. 384.
(2) Ibid. 393.
(3) 1 Addams, 307.
(4) 1 Rob. 382, see p. 399; 15 L. J. (Q.B.) 296. [*436]
v. Rugg (1) (1868) Sir Robert Phillimore, by a like sentence, formally admonished Mr. Rugg to obey the direction of his ordinary (by performing divine service in each of his two churches on every Sunday), and added, It is right that I should call the serious attention of Mr. Rugg to the order of this Court. I am glad to perceive that he has the assistance of an experienced proctor, from whom he may learn (if not otherwise informed) that disobedience to the order of this Court will be attended with the grave penal consequences which the law attaches to the offence of contumacy. The last two cases were later than the Church Discipline Act; but they shew what two learned and experienced Judges understood to be familiar law in the Ecclesiastical Courts. No example has been alleged to be found in the books, of the institution of a second suit for the sole purpose of punishing mere contumacy or disobedience to the orders of an Ecclesiastical Court, by a person who was a party to the suit in which such orders were pronounced.
The proposition, therefore, that before the Church Discipline Actnothing could be done by any Ecclesiastical Court, without a new suit, to enforce a monition, or other order (whether mandatory or prohibitory), forming part of, or issued pursuant to, a decree having the force of a definitive sentence, is disproved by these authorities; which make it evident, that cases of disobedience to such monitions or orders, might be, and were, dealt with on the footing of contumacy or contempt, in the same suit, by farther monition or inhibition, and (if necessary) by excommunication. In five out of the six cases to which I have referred, every act of contumacy or disobedience would have been, (as much as in the present case,) a new and substantive ecclesiastical offence.
The only question which remains is, whether before 53 Geo. 3, c. 127, there was any law to prevent an Ecclesiastical Court, in the case of a clerk in holy orders, from the use, for similar purposes, of the minor censure or penalty of suspension; suspension (whether ab officio only, or also a beneficio,) being certainly a less penalty, in the view of the ecclesiastical law, than excommunication. There is no reason or principle, on which such a state of the law can be presumed, unless it is proved. All the
(1) Law Rep. 2 A. & E. 247. [*437]
authority which is to be found on the subject is in the opposite direction.
Oughton (1) enumerates, first, those ecclesiastical penalties and censures which are common to clergymen and laymen; and, next, those which are peculiar to the clergy. Among the former are monition (of which he says (2), præparatoria est, plerumque præcedens ecclesiasticas censuras), and excommunication. Among the latter, suspension; of which he says (3), post monitionem debit factam, ecclesiasticam personam ab officio seu beneficio, vel ab utroque, ad tempus excludit. As to contumacy (4), he says, that its penalty is excommunication or suspension; and Crescente contumaciâ, crescere debet et poena: sed pro primâ contumaciâ potest quis excommunicari.
Gibson (5) distinguishes two sorts of suspension; the one (ab officio aut beneficio) relating to the clergy alone (as to which he says nothing about any disuse); the other (ab ingressu ecclesiæ, which he speaks of as disused in his time) relating to the laity chiefly. Both of them, he says, are inflicted for crimes of an inferior nature; viz., such as, in the first case, deserve not deprivation, nor, in the second case, excommunication. Both, in practice at least, are temporary; both are terminated, either at a certain time, when inflicted for such a time, or upon satisfaction given to the Judge, when they are inflicted till something he hath enjoined shall be performed. And, lastly, both (if unduly performed) are attended with farther penalties; that of the clergy with irregularity, if they act in the meantime; and that of the laity with excommunication. The phrase, if unduly performed, is clumsy; but I understand it to mean, if any injunction, which the Judge may have embodied in a decree or order by which any kind of suspension quousque has been inflicted, is not duly obeyed.
The author of the Appendix to Godolphins Repertory speaks of suspension as the proper punishment of an offending clergyman; ab officio, for contumacy in not appearing upon lawful summons; a beneficio for higher crimes. He adds, that, if a clerk that is suspended ab officio shall continue the same by serving his
(1) Obs. on tit. 137.
(2) Vol. i. Tit. 137, Obs. 3.
(3) Vol. i. Tit. 137, Obs. 8.
(4) Vol. i. Tit. 37, Obs. (g) 1.
(5) Codex, 1346, 1347. [*438]
cure, notwithstanding his suspension, then a severer sentence follows; and, if a clerk that is suspended ab officio shall continue so without submission or seeking to be restored, then he may be suspended a beneficio also. In the whole of this passage the author repeats and refers to corresponding statements of the law and practice, made by Lyndwood, who was Dean of the Arches in the reign of Henry V.; quoting from him two sentences, viz., Pro suspenso public denuntiatus, si interim immisceat se divinis, secundum sententiam doctorum efficitur irregularis; and subtrahi debet beneficium, quando sic suspensus est in morń petendi absolutionem. The reference is to the gloss at page 12 of Lyndwoods Provinciale; where that writer also says, that suspension a beneficioshould only be ex causâ magnâ; but that it is such a cause, si suspensus (i.e., ab officio) contemnat suspensionem.
Of the use of suspension to compel appearance, in the case of a clerk in holy orders, there are examples in Mr. Rotherys Return: Hancock v. Bomer, in 1691 (No. 99) and Jones v. Curtis, in 1705 (No. 119). In the first case of Harrison v. Archbishop of Dublin, in 1707 (which was brought to the House of Lords, on prohibition, in 1713, and in which this House affirmed the orders of the Courts below, refusing a prohibition), a prebendary of St. Patricks Cathedral, duly summoned to attend the Archbishops Court of Visitation, and not appearing, was declared contumacious; and the Archbishop, in due form of law, by sentence, suspended him ab officio et beneficio for his contempt (1). At a later Court of Visitation (1718) the same prebendary was monished by the Archbishop to extract, within a month, a license to serve cure of souls, and to preach, in the parish of Saint John (a church annexed to his prebend); and, on a subsequent day, Harrisonhaving neither obeyed the monition, nor then appearing, the Archbishop pronounced him contumacious, and sentenced him to be suspended. This sentence, and another pronounced under similar circumstances against another clerk named Higgins, were affirmed on appeal by the Court of Delegates (2).
These are not authorities directly applicable to the particular case of suspension for disobedience to a final decree in a criminal suit, having the force of a definitive sentence; but the statute
(1) 2 Brown, P. C. 199.
(2) Rotherys Return, Nos. 135 and 136. [*439]
53 Geo. 3, c. 127, does not lay down one law as to contumacy for the case of such a final decree, and another for cases of citations and interlocutory orders. These authorities, therefore, are sufficient to reduce the question, whether there is any reason against the exercise, in the case of disobedience to a final decree, of the same powers which can be exercised in case of disobedience to a citation or an interlocutory order, to one not of jurisdiction, but of mere ecclesiastical procedure. And there is at least one distinct precedent on record, (prior to the cases of Martin v. Mackonochie (1) and Hebbert v. Purchas (2) before the Judicial Committee of the Privy Council,) of a sentence of suspension ab officioaffirmed by the Court of Delegates, for disobedience to such a decree. This is Jones v. Jones (1671), which was brought before the delegates from the Consistory Court of Bangor (3). The clerk, who was Defendant and Appellant in that case, was articled for not reading the prayers of the Church in what was alleged to be the proper and accustomed place. Having been, by decree having the force of a definitive sentence, admonished to do so, he appeared in Court and peremptorily refused to obey the monition. For this the bishop suspended him ab ingressu ecclesi3┌4, and ordered him to shew cause why he should not be suspended ab officio. On a later day, not having appeared to shew cause, he was suspended ab officio. These orders were affirmed on appeal, both by the Court of Arches, and by the Delegates.
The result appears to me to be, that the Appellant in the present case has failed to shew that the provisions of either of the statutes on which he relies are in any way contravened by the suspension of a clerk in holy orders ab officio et beneficio, for contumacy in disobeying a monition, forming part of a decree having the force of a definitive sentence, pronounced against him in a suit regularly instituted under the Church Discipline Act, the sentence of suspension being pronounced in the same suit; and that this is nothing more than a question of ecclesiastical procedure. Into any reasons of expediency, either for or against the existence of such a power in the Ecclesiastical Courts, or for or against the exercise of it under circumstances like those of the present case,
(1) Law Rep. 3 P. C. 409.
(2) Law Rep. 4 P. C. 301.
(3) Rotherys Return, No. 63. [*440]
I do not think it would be proper for your Lordships to enter. If the Ecclesiastical Court has not exceeded its jurisdiction, the judgment of the Court of Appeal ought to be affirmed, and, being of that opinion, I now move your Lordships to affirm that judgment, and to dismiss the present appeal with costs.
My Lords, at the close of the arguments, extremely full and able, for the Appellant in this case, I was of opinion (as were all your Lordships) that it would be desirable that the case should be adjourned in order that we might have an opportunity of considering carefully the arguments and authorities on which the Appellant rested his case. This opportunity your Lordships have now had; and the result has been, so far as I am concerned, that I am now prepared to say that I think the judgment of the Court of Appeal should be affirmed. I had proposed to myself to state in some detail the reasons which led me to this conclusion. Before, however, doing so, I read over again the judgment of the late Lord Justice Thesiger, delivered in the Court of Appeal, and I found there every consideration and ground of judgment which I desired to lay before your Lordships, so fully and so felicitously stated, that I determined to refer your Lordships to his expression of them rather than weaken it by using words of my own.
My Lords, there has not been an earlier opportunity, and there certainly could not be a more significant one, which I could take for recording my deep regret for the loss which this country has sustained in the untimely death of Lord Justice Thesiger, of a Judge who in his short tenure of office had given proofs of a rare excellence and ability, and from whose matured wisdom, had his life been prolonged, the highest advantage to the State might have been anticipated.
My Lords, I agree with the Lord Chancellor that this appeal should be dismissed with costs.
My Lords, this case has been so thoroughly and exhaustively discussed by the learned Judges below, that we cannot expect to have any new light thrown upon it by the counsel for the Respondents; [*441] and, as I believe all your Lordships are of opinion that the judgment of the majority of the Court of Appeal below was right, I see no reason why that opinion should not be declared at once.
The Church Discipline Act (3 & 4 Vict. c. 86), provides that no proceedings against a clerk in holy orders for any offence against the laws ecclesiastical shall be instituted otherwise than is in that Act provided. A proceeding against Mr. Mackonochie was instituted in strict conformity with the provisions of that Act in 1874; and in strict conformity with the provisions of the 13th section of that Act, the Bishop of London, in whose diocese Mr. Mackonochies preferment lies, transmitted the case by letters of request to the Court of Arches, being the Court of Appeal of the province of Canterbury, to be there heard and determined according to the law and practice of that Court.
The Court of Arches in December, 1874, decreed that the Defendant had been guilty of certain practices which were offences against the laws ecclesiastical, and pronounced sentence that the Defendant should be suspended ab officio for six weeks, and admonished to abstain in future from the practices thereby condemned.
On the 12th of June, 1875, a formal suspension and a formal monition were issued in pursuance of this sentence, and published. The monition, after reciting the sentence of suspension for six weeks, proceeds thus:– We do therefore hereby authorize, empower, and strictly enjoin and command you jointly and severally, peremptorily to monish, or cause to be monished the said Rev. Alexander Heriot Mackonochie (whom we do so monish by the tenor of these presents) to abstain for the future from the practices set forth in such of the said articles or parts thereof as we pronounced to have been proved as aforesaid, that is to say, in the 4th, 5th, 7th, 8th, 9th, 10th, and 12th articles, and in the 11th article, so far only as making the sign of the cross to the congregation is concerned, under pain of the law and contempt thereof; and what you shall do or cause to be done in and about the premises you shall duly certify us, our surrogate, or other competent Judge in this behalf, together with these presents.
So far it is not now disputed that the proceeding was all strictly in pursuance of the law and practice of the Court of Arches. For, [*442] though the late Chief Justice Cockburn was of opinion, as he says (1), that the monition of Sir Robert Phillimore was ultr÷ vires and inoperative, the course of precedents and authorities which had not been brought to the Chief Justices notice when he pronounced that opinion are so strong that it is now admitted, or, as Lord Justice Brett says (2), at all events it is clearly established, that the monition in this form was, according to ecclesiastical law and practice, properly made part of a sentence imposing suspension, and was properly issued.
In 1878, application was made to the Court of Arches, of which Lord Penzance had now become the Judge, alleging that the Defendant had, in disobedience to the monition, repeated the condemned practices. After full notice to the Defendant, and full proof by affidavits of the truth of this complaint, and Lord Penzancehaving issued two fresh monitions, which were also disobeyed, the Defendant not appearing, Lord Penzance on the 1st of June, 1878, pronounced this order, which I read at length for a reason which I will presently state:– The Judge, having maturely deliberated, did pronounce, decree, and declare that the proctor for the promoter had sufficiently proved that the Rev. Alexander Heriot Mackonochie did on Sunday the 31st day of March, 1878, and on Sunday the 7th day of April, 1878, wear, while officiating in the communion service, the following vestments or things, that is to say, an alb, a chasuble, a stole, and a maniple, and did on such days cause to be said or sung during the performance of the service for the administration of the Holy Communion immediately after the prayer of consecration, and before and during the reception of the elements by the communicants, the words or hymn or prayer commonly known as the Agnus, that is to say, O Lamb of God, that takest away the sins of the world, have mercy on us, and on both the said days did, when officiating in the performance of divine service and of the communion service, kiss the prayer book or service book, and that in so doing he had repeated the offences against the statute laws, constitutions, and canons of the Established Church of England, which were alleged against him in certain of the articles exhibited against him in this suit, and declared by the Court to have been sufficiently proved, and farther
(1) 3 Q. B. D. 745.
(2) 4 Q. B. D. 744. [*443]
had therein and thereby disobeyed and contravened the monition of this Court served upon him on the 26th day of July, 1875, and also the farther monition of this Court served upon him on the 29th day of March, 1878, for which disobedience the Judge did pronounce him to have been guilty of contumacy. And for the conduct aforesaid, the Judge did farther decree and declare that the said Rev. Alexander Heriot Mackonochie be suspended, for the space of three years from the time of publishing the suspension for that purpose in the church of the new parish of St. Albans, Holborn, in the county of Middlesex, diocese of London, and province of Canterbury, from all discharge and function of his clerical offices and the execution thereof, that is to say, from preaching the word of God and administering the sacraments, and celebrating all other duties and offices in the said new parish church and parish of St. Albans, Holborn, and elsewhere within the province of Canterbury, and from receiving or taking any of the profits or benefits of the vicarage or benefice of the said new parish of St. Albans, Holborn, or of the fruits, tithes, profits, rents, rent-charges, salaries, fees, and other ecclesiastical dues and emoluments whatever belonging or appertaining to the said vicarage or benefice, and did suspend the said Rev. Alexander Heriot Mackonochie accordingly, and did condemn him in the costs of this application And the said Judge did moreover direct that a copy of this decree duly certified be transmitted to the Consistorial Court of London, in order that such sequestration or sequestrations may there be issued, or such other steps be taken as the nature of the case and the exigency of the law may appear to require. And did farther direct the said suspension to be published in the said new parish of St. Albans, Holborn, on Sunday, the 16th day of June instant, and assigned Moore to certify the same in the registry of this Court within ten days after the publication thereof.
The Appellant obtained in the Queens Bench Division, before this order was formally drawn up, a rule nisi for a prohibition against the carrying out the sentence which resulted in this order.
Prohibition is the common law proceeding by which any of the superior temporal Courts at Westminster (not the Queens Bench only) are enabled to restrain, amongst others, the Courts Ecclesiastical [*444] from acting in excess of their jurisdiction; but it does not enable the temporal Court to act as a Court of Appeal from the Court Ecclesiastical, so as to correct any irregularity or even injustice which may have been done by the Ecclesiastical Court, if done in the exercise of their jurisdiction. The majority of the Queens Bench Division, Chief Justice Cockburn and Mr. Justice Mellor, dissentiente Mr. Justice Lush, thought that in making this order Lord Penzance exceeded his jurisdiction, and they made the rule absolute. Formerly, in order to take the opinion of a Court of Appeal, it would have been necessary to have the applicant declare in prohibition, to which declaration the other side could plead, and then the matter being put on the record and disposed of in the Court below, by judgment on the verdict, if the issues taken were issues in fact, or on demurrer if the issues taken were issues in law, error would lie on that judgment. Now, there may be an appeal against the rule. Such an appeal was brought. The majority of the Court of Appeal, Lord Coleridge, Lords Justices James and Thesiger, dissentientibus Lord Justices Brett and Cotton, discharged the rule. From this there is an appeal to this House.
The first question, as I think, is, What is the effect of the order? Does Lord Penzance there pass a sentence on Mr. Mackonochiefor a new ecclesiastical offence committed in 1878 aggravated by his having been previously convicted, so that Lord Penzance acts in a new proceeding, instituted since the letters of request? In that case I should agree that he contravened the Church Discipline Act. Or does he pass a sentence of suspension ab officio et beneficio as a step in the proceeding which was regularly instituted in 1874, as a punishment for disobedience to the monition which he considered contumacy? In the latter case he may or may not have exceeded his jurisdiction, but has not contravened the Church Discipline Act.
It was argued that at least it was doubtful whether he was not doing both, and it was argued that, as the first was in excess of jurisdiction, a prohibition should go against all, whether the rest was within his jurisdiction or not. But common sense and the course of precedents are alike against this contention. Where part is within the jurisdiction and part not, a prohibition is awarded against doing what is in excess of jurisdiction, and a consultation [*445] as to the rest. For this it is enough to cite Townsend v. Thorpe (1), Middleton v. Crofts (2), and Free v. Burgoyne (3).
It was argued that your Lordships ought to act in conformity with the principle of the decision of Reg. v. OConnell (4), and some countenance is given to that argument by Lord Justice Cotton (5), where he says that it is impossible to divide the order or apportion the sentence. I do not think that principle is applicable to prohibition. But I do not think the question arises. For unless the judgment of an Ecclesiastical Court is, in prohibition, to be construed as it were on special demurrer, and almost ut res magis pereat quam valeat, for which I know of no authority, I think this order of Lord Penzance must be understood as shewing that he thought this suspension a proper sentence, and not too great as a sentence given for punishing the disobedience to the monition of 1875, and so enforcing the monition of the Court issued in the time of his predecessor. And that brings me to what is the only question in this prohibition on which I mean to express an opinion. Was that sentence thus understood within the jurisdiction which, by the laws of this country, is entrusted to the Court of Appeal for the Province of Canterbury?
My Lords, I have come, for the reasons I shall state afterwards, to the opinion that the Court of Arches did nothing which was in excess of its jurisdiction, and I do not mean to express any opinion whatever on the question as to the limits between what would be properly matter for prohibition, and what would be matter of appeal only. It is a very difficult question; any one who reads the case of Gould v. Gapper (6), the doubt expressed by Justice Patteson in Blunt v. Harwood (7) as to whether that case was rightly decided, and his subsequent recantation of that doubt in Burder v. Veley (8), will see how difficult. I do not express any opinion on it one way or the other, because, in the view I take of the matter, the question does not arise, and, though it is hardly necessary, I desire to say that it is not to be supposed either that I agree to any doctrine on that subject which has been laid down,
(1) 2 Ld. Raym. 1507.
(2) 2 Atk. 650.
(3) 5 B. & C. 400.
(4) 11 Cl. & F. 155.
(5) 4 Q. B. D. 736.
(6) 5 East, 345.
(7) 8 Ad. & E. at p. 619.
(8) 12 Ad. & E. 264. [*446]
because I do not expressly dissent from it, or that I dissent from any such doctrine because I do not expressly agree to it. I mean literally to express no opinion.
The ecclesiastical law of England is not a foreign law. It is a part of the general law of England of the common law in that wider sense which embraces all the ancient and approved customs of England which form law, including not only that law administered in the Courts of Queens Bench, Common Pleas, and Exchequer, to which the term Common Law is sometimes in a narrower sense confined, but also that law administered in Chancery and commonly called Equity, and also that law administered in the Courts Ecclesiastical, that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm and form, as is laid down in Caudres Case (1), the Kings ecclesiastical law. All these laws may be, and are, altered by statutes. When the question arises what is the English ecclesiastical law, it is not ascertained by calling witnesses to prove it, as if it were a foreign law, but taking judicial notice of what the law is, it is ascertained, by argument founded on legal principles and authorities, what the law is on the particular point. Such was the course pursued by the Court of Kings Bench, when Lord Hardwicke was Chief Justice, in Middleton v. Crofts (2). It was expressly approved of in this House, to cite no other authorities, in The Queen v. Millis (3) and Bishop of Exeter v. Marshall (4).
In determining this question I think great weight should be given to the principles of the ecclesiastical law, laid down by those ancient writers on the ecclesiastical law of England whose treatises have been accepted by the Judges in the Ecclesiastical Courts as of authority. Some weight is to be given to foreign jurists who treat of the law ecclesiastical as practised in foreign countries, but much less weight, for it may well be that they are treating of ecclesiastical constitutions which have never been accepted and received in England. Very little weight should, in my opinion, be given to treatises so modern as not to have yet been sanctioned by the Judges of the Ecclesiastical Courts.
(1) 5 Rep. 1.
(2) 2 Atk. 650.
(3) 10 Cl. & F. 534.
(4) Law Rep. 3 H. L. 17. [*447]
I think great weight is to be attributed to the practice of the Courts Ecclesiastical, and I think the forms of the writs in use are very strong evidence of what that practice is. I do not think these forms conclusive, for no doubt the forms of pleadings and writs sometimes only indicate what was, at a former time, the received law, but which may have now become antiquated and fallen into disuse, the law having in process of time insensibly changed. But most weight of all is, in my opinion and here I only repeat what was said by Lord Stowell in Dalrymple v. Dalrymple (1) to be attributed to judicial decisions. And I think this the proper time to consider what weight ought to be given to the decisions of the Judicial Committee in Martin v. Mackonochie (2), and Hebbert v. Purchas (3). I think that there is authority for saying that the temporal Court, proceeding in prohibition to restrain excess of jurisdiction in the Court Ecclesiastical, is not bound by a decision of even the highest Court of Appeal in ecclesiastical matters. The temporal Courts had carried on a long struggle, first, before the Reformation, with the Pope, and afterwards during the period subsequent to the Reformation, with the Church and the Crown, and many of their decisions may be attributed to a jealousy which they had thus acquired of the Ecclesiastical Courts. But I do not think that the doctrine now in question is open to observation as founded on that jealousy. I think the very nature of a restraining power involves in it a right to consider the decision of the Court which it is sought to restrain, and (if satisfied on sufficient grounds that the decision was a usurpation) a right and consequently a duty, to declare that it was so. And though, when the appeal from the Ecclesiastical Courts was transferred to such a body as the Judicial Committee, it might have been thought that the restraining jurisdiction of the temporal Courts was no longer needed, the Legislature has not thought fit to take away the prohibition to the Ecclesiastical Courts. I see that in Smith v. Brown (4), decided in 1871, I said that in a case of prohibition where we are called upon to restrain the Court of Admiralty, we are not bound by any decisions, either in the Court of Admiralty or in the Court of Privy Council,
(1) 2 Hagg. Cons. 81.
(2) Law Rep. 3 P. C. 409.
(3) Law Rep. 4 P. C. 301.
(4) Law Rep. 6 Q. B. 737. [*448]
when sitting in an appeal from that Court, though their reasons are to be weighed with great respect. This, if sound, is equally applicable to prohibition to restrain an Ecclesiastical Court. I do not wish to decide what is not necessary; but I may say that, now that the ultimate Court of Appeal in the Admiralty is this House, the difficulty of applying what I then said to a decision of the House of Lords on appeal from the Court of Admiralty makes me less confident that what I then said is quite sound. I am, however, still inclined to think it was right; but, supposing it to be so, I still think that the majority in the Queens Bench, and the minority of the Judges in the Court of Appeal, have given far too little weight to these judgments. They seemed to have overlooked this, that assuming that the arguments were sufficient to convince a Court, in prohibition, that it was not (independently of these decisions) made out affirmatively that the course taken was within the jurisdiction of the Court of Arches, it would require much stronger arguments to justify that Court in holding that it was affirmatively made out that the decisions of such a Court as the Privy Council were wrong.
I shall return to this when I say why I dissent from the reasons given by the majority of the Queens Bench Division and the minority of the Court of Appeal.
I am not aware of any authorities in addition to those already cited, and shall not again go through them. I think it is sufficiently shewn that the course of the ecclesiastical law was to punish ecclesiastical offences, according to their gravity, by the lighter or graver punishments, and that in the case of a beneficed clerk suspension ab officio and suspension ab officio et beneficio for a fixed period, and deprivation, were all proper ecclesiastical punishments, and all were lighter ecclesiastical punishments than excommunication, which, if it was effectual here and hereafter, was a very terrible sentence, and at the time when the ecclesiastical law was framed and adopted in England, it was believed to be effectual in this life and in the next. And the inference seems to me irresistible that wherever the offence was such that the Ecclesiastical Court could impose this terrible ultimate punishment, it could impose the lighter punishment of deprivation, or the still lighter sentence of suspension. [*449]
It was not disputed in the argument that though deprivation or suspension a beneficio has the effect of interfering with a freehold interest in the temporalities, yet it may, in a proper case, be inflicted, by the Ecclesiastical Court. This is decided in Free v. Burgoyne (1) where the articles in the Ecclesiastical Court were against a beneficed clerk for incontinence and other matters, from which a clerk was, according to the articles, enjoined to abstain under pain of deprivation of their ecclesiastical benefices, suspension from the exercise of their clerical functions, or such other ecclesiastical punishment or censures as the exigency of the case, and the law thereupon, may require and authorize, and on prohibition a consultation was awarded.
And the established form of the writ of monition shews that at the time when that writ was first framed, commanding the delinquent to abstain in future under pain of the law and contempt thereof, it was contemplated that some sort of ecclesiastical censure could be passed for contumacious disobedience. It seems to me little short of a reductio ad, absurdum to say that such a monition was not intended to be enforceable at all, and if it could be enforced by excommunication, it does seem very strange if it could not be enforced by a lesser punishment. But the commissioners who were appointed in 1832 to report on the practice of the Ecclesiastical Courts do not mention the punishment of contumacy by anything else than the writ de contumace capiendo, given by the 53 Geo. 3, c. 157. I think that does not prove that there could be no other mode of punishing contumacy, though I agree that it is very strong evidence that no other mode was usually adopted; and the research of the learned persons employed in this cause has enabled them to supply but very few instances, before the two recent cases in the Privy Council, in which any other mode has been adopted, none of them recent, and I think none of them very satisfactory. Before these two recent decisions I might have had scruples whether it was right to use a mode of enforcing obedience to a monition, which, though I think it made out that it was a mode that might originally be adopted, was one which had long been allowed to sleep. I incline to think that I should have come to the conclusion that it might be done; but [*450] when the Judicial Committee has twice decided the question, and I am asked to say that they are wrong, the scruples which I might have had are quite immaterial. I cannot say that they are wrong.
I will now proceed, as I think respect to them requires, to examine the reasons of the Judges below, and explain why I dissent from them. Mr. Justice Mellor bases his judgment, I think, on the ground that he thinks Lord Penzance was proceeding in contravention of the Church Discipline Act. He says, I consider that the offence upon which Lord Penzance adjudicated and passed the sentence now appealed against was a fresh and distinct offence against the law ecclesiastical. I mean new and distinct from the offence for which he had been sentenced to suspension and payment of the costs by Sir Robert Phillimore when Dean of Arches. It appears to me Lord Penzance had no authority to adjudicate and condemn the Defendant, Mr. Mackonochie, to a sentence of suspension, applicable only to a definite and specific offence, without fresh letters of request from the Bishop of London, in whose diocese the offence arose. All the offences charged against the Defendant were committed within the diocese of London, and might have been dealt with in the Consistory Court of the Bishop of London, and without letters of request from the Bishop of London, the Arches Court of Canterbury had no jurisdiction to take proceedings in the matter. When, therefore, Mr. Mackonochie had been convicted and sentenced by a definitive sentence of the then Dean of Arches, and had suffered the punishment assigned to such offence, the suit was at an end. He might be liable in a summary proceeding by way of contempt, and punished in the course prescribed by the statute of Geo. 3, namely, by significavit and imprisonment; but, as it appears to me, in order to proceed for a fresh specific offence which might end in a sentence of suspension and deprivation it was essential that a new suit should be instituted, and that fresh letters of request should be obtained from the Bishop of London. There is no analogy in the law in criminous matters, by which, when a new offence has been committed by a Defendant he can be called upon to answer without the institution of a fresh suit, and conducted with the formalities which the law prescribes. It might as well be said that a man who has committed a burglary and been sentenced, [*451] and suffered his punishment for such offence, and who had afterwards committed a fresh burglary in the same house, could be dealt with summarily, and tried and punished without any bill being preferred before a grand jury for such second offence. Possibly the monition given by Sir Robert Phillimore on the trial for the former offence might be used in aggravation of punishment on a second trial for a similar offence; but, as it appears to me, it could have no other effect. I have already stated my reasons for not agreeing with this. He also expresses a general concurrence in the judgment of the late Chief Justice Cockburn.
My Lords, I have read that judgment of the late Lord Chief Justice more than once, with great attention, and it seems to me that it is all based upon one position, which he assumes, but does not prove, to be law. He says (1), It is familiar knowledge that the only coercive process or punishment for contumacy possessed by the Ecclesiastical Courts was, prior to the 53 Geo. 3, c. 127, excommunication, which, when signified, as it was termed, to the Court of Chancery, was followed by the writ de excommunicato capiendo, confirmed and regulated by the statute of the 5 Eliz. c. 23, under which the party was committed to prison till he made his submission and rendered obedience. For this process, by the Act of 53 Geo. 3, was substituted the writ de contumace capiendo, under which a party decreed to be contumacious might be imprisoned till submission and obedience; to which was added, by 2 & 3 Will. 4, c. 93, power to sequester the estates of contumacious persons privileged from arrest, and who were not, therefore, subject to the process in question. The Ecclesiastical Commissioners say: The execution of the sentence, in case there be no appeal interposed, is either completed by the Court itself, as by granting probate or administration, or signing a sentence of separation, or remains to be completed by the act of the party, as by exhibiting an inventory and account, by payment of the tithes sued for, and other similar matters, in which case execution is enforced by the compulsory process of contumacy, significavit and attachment. And afterwards he says (2): The established and only penalty of contumacy was not suspension, but, as I have shewn, imprisonment, under 53 Geo. 3.
(1) 3 Q. B. D. 757.
(2) 3 Q. B. D. 768. [*452]
Neither Chief Justice Cockburn nor any other practitioner at that time alive can have had personal knowledge of the course of proceeding before 53 Geo. 3. And no authority is cited by him, and none has been found or produced by the learned counsel for the Appellant, in support of this position, and I know of none. The only mode in which the Ecclesiastical Court could cause the delinquent to be imprisoned was by excommunicating him, and signifying at common law to the Court of Chancery that he was excommunicated and in contempt of the keys; whereupon a writ de excommunicato capiendo issued. And I quite agree that this was one mode of punishing contumacy, as is shewn by the form of the significavit, that the delinquent was an excommunicated person and a contemner of the keys, which I take from the recital in the writ of relaxation given in Fitzherbert, De Natura Brevium, p. 69. But where is there any authority, except that of the Chief Justice himself, for saying it is the only mode? I think, if we can suppose such a thing, a sentence of the Judicial Committee imposing imprisonment or the pillory, would be such a novelty that the Court in prohibition would be justified in saying that it was wrong, and, disregarding its authority, to grant a prohibition. But thinking, as I have already said, that in the balance of legal argument I incline, though with some doubt, to think that before the two decisions before referred to I should have said that there might be other modes of enforcing it, and now being called on to weigh on the one side the authority of the Judicial Committee, and on the other the authority of the Chief Justice very confidently asserted, but supported by nothing but his authority, I do not hesitate.
Lord Justice Cotton, after citing the 23rd section of the Church Discipline Act, says, I think quite correctly, The question in this appeal is, in my opinion, having regard to this section, whether the order of the 1st of June was a proceeding to enforce obedience to the decree of the 7th of December, 1874, or whether it is an adjudication upon acts done by Mr. Mackonochie since that decree and sentence upon him for those acts as offences against ecclesiastical law. If it is the latter it comes, in my opinion, within the prohibition of the enactment to which I have referred, and is also contrary to the general scope and intention of the Act. Even if [*453] the order of the 1st of June is partly a proceeding to enforce obedience to the decree of December, 1874, and partly such an adjudication and sentence on Mr. Mackonochie as above referred to, in my opinion the Queens Bench Division was right in directing a prohibition to issue, because it is impossible to divide the order, or apportion the sentence. I have already given reasons for dissenting from this last position. He proceeds: It was argued that to allow a prohibition in the present case would make the decree of the Ecclesiastical Court nugatory, as it would deprive this Court of the power of enforcing its decrees, at least where the act of disobedience is an offence against ecclesiastical law. In my opinion this is not well founded. I do not accede to the argument that a monition which forms part of a decree cannot be enforced. In my opinion, it may in the mode authorized by the Act of 53 Geo. 3, c. 127, and an act of disobedience to an order of the Court may be dealt with as such, even though it may also be an offence against ecclesiastical law.
He does not expressly say that he thinks that it is established law that this was the only way. But I think it is implied; perhaps he took that for granted on the confident assertion of the Chief Justice. At all events he gives no farther reason for it than this: It is remarkable that the report of the Church Courts Commissioners made in 1832, where, at pages 16 and 19, it deals with the mode of enforcing decrees of the Church Courts, makes no mention of suspension, though that part of the report must, in my opinion, be taken to refer to all suits in the Ecclesiastical Court, whether of a purely civil or of a criminal or corrective character, against the clerks beneficed and unbeneficed, as well as against laymen. This absence of all mention of suspension as a mode of enforcing decrees is certainly, having regard to the learning and high authority of the Commissioners who signed the report, very strongly in favour of the view that suspension is not an authorized means of enforcing decrees of the Ecclesiastical Court. Unless clear authority can be produced to shew that the Ecclesiastical Courts have enforced their decrees by suspension, the report of the commissioners is, to my mind, conclusive. I have already said that I think it strong evidence that it was not a common mode of enforcing their decrees, but not more. [*454]
Lord Justice Cotton goes on: But the authorities quoted in support of the contrary proposition are, independently of two decisions of the Privy Council, very few in number, and moreover, with the exception of an order made by an Archdeacons Court, they are not free from ambiguity. He then says, But it is said, and correctly, that in Hebbert v. Purchas (1), and in the previous case of Martin v. Mackonochie (2), the Privy Council did make orders for suspension with a view to enforce obedience to decrees. Neither of these cases was argued by counsel for the Defendant, who was suspended, and the attention of the members of the Judicial Committee who heard those cases was in neither of them directed to the question which we have to consider in this appeal. Though this Court is not bound by decisions of the Privy Council, yet I should not feel at liberty to decide that what the Privy Council the ultimate Court of Appeal from the Ecclesiastical Court had deliberately decided to be in accordance with the law and practice of that Court, was illegal and irregular. But I cannot look upon these cases as deliberate decisions that obedience to orders can be enforced by suspension.
Lord Justice Brett says: The power is to be proved by the practice. On the one side it is said that, by the recognised practice, this power is proved that the Court may, on the repetition of the offence by a beneficed clergyman, order him to appear and sentence him to suspension a beneficio, or to deprivation; on the other side, it is said that no such practice can be shewn to have ever existed, that no such practice has ever been recognised, that no such power is therefore proved. The proposition in dispute is this, that it was the practice of the Ecclesiastical Courts, after a monition in a sentence admonishing the Defendant to abstain from repeating the offence, and a subsequent alleged repetition of the offence, to summon the clerical delinquent to appear, and upon proof of the repetition to sentence him to suspension a beneficio or to deprivation. Whether this proposition is correct or not depends entirely on authority. They who assert that there was such a practice have an affirmative proposition to prove; they who deny it have a negative proposition to support. The one should be able to shew the practice, the others need only say that no such practice
(1) Law Rep. 4 P. C. 301.
(2) Law Rep. 3 P. C. 409. [*455]
can be shewn. If no practice be shewn those who maintain the negative should succeed. It is no valid argument to my mind to say that there is no authority to the contrary of the alleged practice. Unless the practice is established affirmatively, those who maintain the negative should logically succeed. But if, in the sources in which one would naturally seek for proof of the affirmative proposition, one finds all kindred propositions affirmed, but this omitted, it seems to me that the conclusion is immensely strengthened that the negative of the proposition is proved. Now the first source to which one naturally resorts is that of the books of recognised authors on the practice of the Ecclesiastical Courts. I pass by what he says on that. He then goes on: One would wish to find instances clearly in point, that is to say, where, upon such an application as was made in this case to Lord Penzance, after a monition such as is in question in this cause, a notice to appear has followed, and thereupon a sentence of suspension a beneficio, or of deprivation. It is useless to go again in detail through all the cases. It is obvious that there is no such case. I mean there is no case in which it is reported that this thing has been done. Wilson v. Fendall (1) and Williams v. The Bishop of Salisbury (2) shew only that a monition may be part of a sentence. they do not shew whether any action can be taken afterwards in the same suit on a repetition of the offence. Blackmore v. Brider (3) is relied on, because, in his judgment or sentence, Sir J. Nicholluses the expression under pain of law. And Burgess v. Burgess (4), because Lord Stowell says, If obedience be not given to this order, excommunication and other consequences will necessarily follow. And Dr. Lushington has, in giving judgment, used similar expressions. It would not be candid, I think, to say that these are not at least important indications in favour of the affirmative proposition, but it seems clear to me that they are not the authority one would wish or expect to find. They are certainly consistent with the view of their being minatory cautions as to probable farther proceedings, which would, however, be obliged to bear the form of a newly instituted suit.
Lord Justice Brett, if I rightly follow his argument, thinks that
(1) 2 Moo. P. C. (N.S.) 375.
(2) Id. Ib.
(3) 2 Phillim. 359.
(4) 1 Hagg. Con. 384. [*456]
no power of the Court Ecclesiastical can exist unless it is every day practice to exercise it. He, like Lord Justice Cotton, thinks that the silence of the Ecclesiastical Commissioners is decisive. But he goes much farther than Lord Justice Cotton, for he says that no ulterior step of any kind can be taken in respect of a monition. And that though contumacy might, before the statute 52 Geo. 3, have been punished by excommunication, and now by pronouncing the party contumacious, that can, he says, only be done by means of a new suit. I will not say that this is a reductio ad absurdum, though to my mind it is very like it, but I will say that it is a position requiring a good deal of argument and authority to establish it. And he disposes of the two cases in the Privy Council in a single sentence: I must not omit to refer to the cases in the Privy Council. I must agree that we have not in them the matured view of the very learned Judges who sat there I only wish sincerely we had.
My Lords, I shall now conclude by remarking on the manner in which these learned Judges have dealt with the authority of the two cases of Martin v. Mackonochie (1) and Hebbert v. Purchas (2). The Chief Justice treats these as of very little authority. He says (3): The jurisdiction was for the first time assumed, I had almost said usurped, not indeed by the Judges of the ordinary Ecclesiastical Courts, but by Judges who, however great and eminent, may, I hope without offence, be said to be less familiar with the administration of the ecclesiastical law, namely, by the Judicial Committee of the Privy Council. Lord Justice Cottonexpressly, and Lord Justice Brett by implication, say that the deliberate decisions of the Judicial Committee would be very weighty, but that the two decisions in question were not deliberate. I cannot understand how they arrive at that conclusion.
In Martin v. Mackonochie (1) the Defendant did not appear, but the Judicial Committee, consisting of the Lord Chancellor (Lord Hatherley), the Archbishop of York, and Lord Chelmsford, did not the less consider the case. Judgment was reserved, and the reasons given by their Lordships for holding Mr. Mackonochieguilty of an ecclesiastical offence occupy five pages of print.
(1) Law Rep. 3 P. C. 409.
(2) Law Rep. 4 P. C. 301.
(3) 3 Q. B. D. 764. [*457]
Then they proceed to say, Upon the former occasion their Lordships, after expressing their opinion judicially that the monition had been disobeyed, did not think it necessary to do more to mark their disapprobation of Mr. Mackonochies course of proceeding than by directing that he should pay the costs of the application. Upon this repetition of his offence they think that they ought to proceed farther. They therefore declare that Mr. Mackonochiehas not complied with the monition in respect of the elevation of the paten or wafer, nor as to abstaining from prostration before the consecrated elements, and they order that he be suspended for the space of three calendar months, from the time of notice of the suspension, from the discharge of his clerical duties and offices and the execution thereof. Their Lordships did not think it necessary to give their reasons for thinking that this sentence might be passed; the judgments in the present case shew that very good reasons might have been assigned. But it seems to me a very strong thing to assume that they passed a sentence which admittedly was not one in the ordinary everyday routine of punishment, at haphazard and without deliberately considering whether they had power to impose such a sentence. It seems to me not to be short of imputing to them, without any evidence, an arbitrary dereliction of duty.
In Hebbert v. Purchas (1) the Judicial Committee, consisting on this occasion of the Lord Chancellor (Lord Hatherley), Lord Chelmsford, Sir James Colvile, and Sir Montague Smith, were asked to inflict a sentence of deprivation. They did not consider the sentence a thing requiring no deliberation, for they required the counsel for the prosecution to inquire into the precedents; and, after a months interval the argument was heard. Then the Lord Chancellor delivered a short verbal judgment refusing to pass a sentence of deprivation, but saying: Their Lordships are quite satisfied that there exists in this tribunal, as there did exist in the High Court of Delegates, all the powers which have been transferred to the Committee, a power of suspension not only ab officio but a beneficio also, as a summary punishment for contumacy. How anyone can have persuaded himself that this was not the deliberate decision of the Lords there present, is to me inconceivable. It is
(1) Law Rep. 4 P. C. 301. [*458]
true that they did not think it necessary to assign the reasons for this decision. I regret it; for if they had assigned reasons, even if of much less weight than those stated in the judgments in the Court of Appeal in this case, we should have been saved from this protracted, and, I cannot but think, lamentable litigation.
I have only to add that I think the judgment should be affirmed and the appeal dismissed with costs.
My Lords I shall endeavour to state very briefly the view which I take of this case.
I need not refer in detail to the various proceedings which have taken place in the criminal suit instituted against the Appellant, before the Arches Court of Canterbury, in the year 1874. The Appellant maintains that the suit was brought to an end by the decree of the 7th of December, and the issue of a formal instrument of suspension under the seal of the Court, upon the 12th of December, 1874; that all subsequent procedure in the suit was irregular; and that the Judge of the Arches Court had not jurisdiction to pronounce the decree of the 1st of June, 1878, by which he suspended the Appellant for three years ab officio et beneficio.
I have come to the conclusion that the questions raised by the Appellant are, in substance, questions relating to procedure in the Ecclesiastical Courts. It is not disputed that the Court of Arches would have had power in a fresh suit, to entertain the same charges which are dealt with by the decree of the 1st of June, 1878, and on finding these charges proved, to sentence the Appellant to suspension ab officio et beneficio for a period of three years. The jurisdiction of the Court extended to the person of the Appellant, to the subject-matter of the offences alleged against him, and to the punishment which was inflicted upon him; but it is said that the jurisdiction which the Court was thus possessed of could not be lawfully exercised except in one form of proceeding a new criminal suit against the Appellant; instituted in terms of the Church Discipline Act. Whether that contention be well founded, and whether, according to the ancient law and practice of the Ecclesiastical Courts, it was also competent to take proceedings against the Appellant in the suit which commenced in 1874, appear to me to be questions of procedure which it is within [*459] the province of the Ecclesiastical Courts to decide, and the temporal Courts ought not, in my opinion, to interfere with their determination, unless it can be shewn to be either repugnant to the principles of natural justice, or contrary to statute. The procedure of which the Appellant complains, which has been held by the Judicial Committee of the Privy Council in the cases of Martin v. Mackonochie (1) and Hebbert v. Purchas (2) to be in strict accordance with the law and practice of the Ecclesiastical Courts, does not in my opinion offend either against justice or statute law. It appears to me to be a just and reasonable course of procedure, because it enables the Court to pronounce a milder sentence in the first instance, whilst it reserves the power of inflicting an adequate punishment if the orders of the Court are not complied with. It is manifestly for the advantage of those offenders who, whenever the judgment of the Court is against them, endeavour to act in conformity with the laws of the Church; and it cannot be said to bear with undue severity upon those who wilfully continue practices which have been declared by the Court to be contrary to that law, and from which they have been judicially admonished to desist.
But it was argued for the Appellant that the proceedings in question are contrary to the provisions of 53 Geo. 3, c. 127, and 3 & 4 Vict. c. 86. That argument necessarily proceeds upon the assumption that prior to the statute of Geo. 3 it was competent to punish by suspension acts of disobedience to a decree and monition of the Ecclesiastical Court, by proceedings taken in the same suit in which the decree and monition were made and issued. Neither of the statutes has, in my opinion, the least application to the facts assumed. The Act of 53 Geo. 3, deals only with the graver sentence of excommunication, and makes no change in the previous law or practice of the Ecclesiastical Courts with respect to sentences of suspension; and the Church Discipline Act of 1840, which regulates the mode of instituting in these Courts criminal suits against clerks in holy orders, does not affect any proceeding which, before its passing, might have been lawfully taken in a suit duly instituted.
I am accordingly of opinion that the judgment of the Court of
(1) Law Rep. 3 P. C. 409.
(2) Law Rep. 4 P. C. 301. [*460]
Appeal ought to be affirmed. I desire to add that, although the grounds I have indicated appear to me to be sufficient for the disposal of this appeal, I am prepared to hold that the decisions of the Judicial Committee of the Privy Council in Martin v. Mackonochie (1) and Hebbert v. Purchas (2) are according to law; and I refer to and accept the reasons which are stated in the exhaustive judgment delivered by the late Lord Justice Thesigerin the Court of Appeal.
Orders appealed from affirmed, and appeal dismissed with costs.
Lords Journals, 7th April, 1881.
(1) Law Rep. 3 P. C. 409.
(2) Law Rep. 4 P. C. 301.