CHAPTER VIII. PROCEDURE UNDER 3 & 4 VICT. c. 86. THIS "Act for better enforcing Church Discipline" passed in Variety of 1843, was, with the exception of a now repealed act (the 1 Hen. 7, statutory c. 4), the first statute passed by the state in aid of the discipline procedure. of the clergy in matters of morality. It was not, however, confined to offences against morality, but provided a procedure for all kinds of clerical offences. After having given rise to much costly litigation, it had at last been pretty well construed and expounded by judicial decision, and had been worked by the ecclesiastical officials as a fairly satisfactory and efficient piece of machinery. In 1874 the Legislature, in a panic, passed the Public Worship Regulation Act, giving a concurrent procedure in matters of ritual. And in 1892, was passed, unwisely as the editor thinks, the Clergy Discipline Act, 1892, creating a new and exclusive procedure for cases of morality. The act of 1843, which had cost so much money and toil to interpret and make workable, now remains only for doctrinal cases, simony, breaches of official duty, some cases difficult to classify, and ritual; and as to this last only as an optional procedure: and the discipline of the clergy is now to be enforced by four separate systems with varying courts-the system provided by 1 & 2 Vict. c. 106, and the other three mentioned in this paragraph. To these might be added a fifth, i.e., that in use in cases of dilapidations. Turning now to the several provisions of the Act of 1843. First (though the enactment comes nearly at the end of the act), it is to be observed that it enacts as follows: As to criminal suits generally— Sect. 23. "No criminal suit or proceeding against a clerk in No suit holy orders of the United Church of England and Ireland, for against a any offence against the laws ecclesiastical (a), shall be instituted clerk to be in any ecclesiastical court otherwise than is hereinbefore enacted except as or provided" (b). (a) In Rackham v. Bluck (1 Vict. c. 106, ss. 33, 114, was not a "criminal suit or proceeding." instituted herein provided. Not to affect authority of bishop out of court. Suits to be commenced within two years. Proviso. When the time begins to run. Reference to offences without the two years, how far allowed. Secondly, it is provided—the provision is perhaps difficult to construe and apply As to the personal powers of the ordinary— Sect. 25. Nothing in this act contained shall be construed to affect any authority over the clergy of the respective provinces or dioceses which the archbishops or bishops of England and Wales may now, according to law, exercise personally and without process in court." Any authority of the bishop exercised out of court is no bar to the institution of proceedings under this act (c). Thirdly, as to limitation of time This statute limits the time within which a clerk may be prosecuted under its provisions, a limitation introduced there by positive law for the first time to the theory of clerical discipline. It is provided by sect. 20, "Every suit or proceeding against any such clerk in holy orders for any offence against the laws ecclesiastical shall be commenced within two years after the commission of the offence, in respect of which the suit or proceeding shall be instituted, and not afterwards: Provided always, that whenever any such suit or proceeding shall be brought in respect of an offence for which a conviction shall have been obtained in any court of common law, such suit or proceeding may be brought against the person convicted at any time within six calendar months after such conviction, although more than two years shall have elapsed since the commission of the offence in respect of which such suit or proceeding shall be so brought." It has been finally ruled by the Privy Council and the Court of Arches, reversing the decision of the Archbishop of Canterbury acting for the Bishop of Bath and Wells, that the commencement of the suit dates from the service of the citation upon the accused clerk and not from the date of the issue of a preliminary commission (d). This case exhausts all the learning on the subject; see also Sherwood v. Ray (e), Brookes v. Cresswell (f); and as to the application of this section to the 68th Canon, Titchmarsh v. Chapman (g). The offence for which the clerk is articled must have been committed within the two years preceding the service of the citation, but it does not follow that offences without that limit may not be given in evidence as rendering probable the commis priving a clerk summariè et sine for matters within its compass. (c) Ex parte Denison, 4 E. & B. p. 292; 3 C. L. R. 247. (d) Denison v. Ditcher, Deane & Swabey, p. 334; 11 Moo. P. C. C. p. 324. (e) 1 Moo. P. C. C. p. 353. For an analogous sion of an offence within the limits (h). 27 Geo. 3, It is further provided, however, by sect. 21, that the act 27 Geo. 3, c. 44," does not and shall not extend to the time of the commencement of suits or proceedings against spiritual persons for any of the offences in the said act named " (k). Fourthly, as to preferments subject to the provisions of this sons for cer act tain offences. "arch " and Sect. 2. "Unless it shall otherwise appear from the context, Definition of the term 'preferment,' when used in this act, shall be construed the terms "preferto comprehend every deanery, archdeaconry, prebend, canonry, ment," office of minor canon, priest vicar, or vicar choral in holy "bishop," orders (), and every precentorship, treasurership, sub-deanery, bishop," chancellorship of the church, and other dignity and office in any "diocese." cathedral or collegiate church, and every mastership, wardenship, and fellowship in any collegiate church, and all benefices with cure of souls, comprehending therein all parishes, perpetual curacies, donatives, endowed public chapels, parochial chapelries, and chapelries or districts belonging to or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, and every curacy, lectureship, readership, chaplaincy, office, or place requires the discharge of any spiritual duty, and whether the same be or be not within any exempt or peculiar jurisdiction; and the word 'bishop,' when used in this act, shall be construed to comprehend archbishop;' and the word 'diocese,' when used in this act, shall be construed to comprehend all places to which the jurisdiction of any bishop extends under and for the purposes of an act 1 & 2 Vict. c. 106" (m). which Fifthly, all places formerly exempt and peculiar, not subject to their proper ordinary, are made subject to him for the purposes of this act. Sect. 22. "Every archbishop and bishop within the limit of whose province or diocese respectively any place, district or pre chapter of York passed sentence of (m) Vide supra, Part IV. Chap. Power of archbishops to exempt or peculiar ferments. places of pre Analogy of 1 Eliz. c. 2. Provisions of act not to interfere with to establish a civil right, ferment, exempt or peculiar, shall be locally situate, shall, except as herein otherwise provided, have, use, and exercise all the powers and authorities necessary for the due execution by them respectively of the provisions and purposes of this act, and for enforcing the same with regard thereto respectively, as such archbishop and bishop respectively would have used and exercised if the same were not exempt or peculiar, but were subject in all respects to the jurisdiction of such archbishop or bishop; and where any place, district, or preferment, exempt or peculiar, shall be locally situate within the limits of more than one province or diocese, or where the same, or any of them, shall be locally situate between the limits of the two provinces, or between the limits of any two or more dioceses, the archbishop or bishop of the cathedral church to whose province or diocese the cathedral, collegiate, or other church or chapel of the place, district, or preferment respectively shall be nearest in local situation, shall have, use and exercise all the powers and authorities which are necessary for the due execution of the provisions of this act, and enforcing the same with regard thereto respectively, as such archbishop or bishop could have used if the same were not exempt or peculiar, but were subject in all respects to the jurisdiction of such archbishop or bishop respectively, and the same, for all the purposes of this act, shall be deemed and taken to be within the limits of the province or diocese of such archbishop or bishop; Provided that the peculiars belonging to any archbishopric or bishopric, though locally situate in another diocese, shall continue subject to the archbishop or bishop to whom they belong, as well for the purposes of this act as for all other purposes of ecclesiastical jurisdiction" (m). The Act of Uniformity, 1 Eliz. c. 2, had already, by sect. 4, empowered bishops and their officers to proceed for the purpose of enforcing that act in places otherwise exempt from their jurisdiction (n). Sixthly, as to civil suits instituted in a criminal form Sect. 19. "Provided always that nothing herein before contained shall prevent any person from instituting as voluntary persons insti- promoter, or from prosecuting, in such form and manner and in tuting suits such court as he might have done before the passing of this act, any suit which, though in form criminal, shall have the effect of asserting, ascertaining, or establishing any civil right (0), nor to prevent the archbishop of the province from citing any such clerk before him in cases and under circumstances in and under which such archbishop might, before the passing of this act, cite such clerk under and in pursuance of a statute passed in the twenty-third year of the reign of king Henry the Eighth, or before archbishop under 23 Hen. 8, c. 9. (m) Vide supra, p. 215. (o) A suit against a clergyman not within the reservation in this section; but must be brought in the regular way, under 3 & 4 Vict. c. 86: Richards v. Fincher, L. R., 4 Adm. & Eccl. p. 107. intituled 'An Act that no person shall be cited out of the diocese where he or she dwelleth, except in certain cases"" (p). Having considered the extent and limitation of the operation of the statute, we will now state the means which it employs for effecting the end which it has in view, namely, the discipline of the clergy. The statute provides for the trial of an accused clerk as Modes of follows: 1. The bishop may issue a commission of inquiry. 2. If that commission report that there is a prima facie ground for further proceedings, 3. The bishop may try the case himself with certain assessors; 4. Or may appoint a commissary to hear the case; 5. Or may, after issuing the commission, and before articles 6. Or may pronounce sentence, with the consent of the accused be tried in the first instance by the court of the province. trial. From the sentence of the bishop or his commissary an appeal Appeal. lies to the court of the province. From the sentence of the court of the province, whether acting as a court of appeal or as a court of first instance, an appeal lies to the Judicial Committee of the Privy Council. The enactments of the statute relative to these matters are as follows: mission of 1. As regards the issuing and working of the commission. Sect. 3. In every case of any clerk in holy orders of the Bishop may United Church of England and Ireland who may be charged issue a comwith any offence against the laws ecclesiastical, or concerning inquiry. whom there may exist scandal or evil report as having offended against the said laws, it shall be lawful for the bishop of the diocese within which the offence is alleged or reported to have been committed, on the application of any party complaining thereof, or if he shall think fit of his own mere motion, to issue sion. a commission under his hand and seal to five persons, of whom Members of one shall be his vicar-general, or an archdeacon or rural dean such commiswithin the diocese, for the purpose of making inquiry as to the grounds of such charge or report: Provided always, that notice of the intention to issue such commission under the hand of the bishop, containing an intimation of the nature of the offence, together with the names, addition, and residence of the party on What notice whose application or motion such commission shall be about to must be preissue, shall be sent by the bishop to the party accused fourteen viously given. days at least before such commission shall issue." The accused clerk is, however, not entitled to be heard as of No prelimi (p) Vide supra, pp. 985, 986. nary right of |