apply as if they were herein re-enacted and in terms made appli- Discipline cable to proceedings under this act, and with the substitution of Act, 1840. the chancellor for the assessor of the bishop, and section fourteen of that act shall apply where a clergyman is accused before a temporal court of any criminal offence, or of any act constituting an ecclesiastical offence, in like manner as it applies where a charge for the like offence is pending in an ecclesiastical court. court. (2.) The consistory court means the court having the powers Meaning of and duties of a consistory court of a diocese; and shall have consistory jurisdiction over every place, district, and preferment, exempt or peculiar, over which the bishop of the diocese has, by virtue of this act or otherwise, jurisdiction (m). 66 (3.) A bishop may act as bishop for the purposes of this act Bishop in relation to a clergyman holding in his diocese a preferment though of which the bishop is patron. patron may act. to offence "(4.) The judgment of a consistory court or (on appeal) of Judgment. the appellate court that a clergyman has been guilty of an conclusive as immoral act, immoral conduct, or immoral habit, or of any being offence against the laws ecclesiastical, being an offence against cognizable morality and not a question of doctrine or ritual, shall be under act. conclusive that the offence charged is cognizable by a consistory court under this act. "(5.) The bishop may appoint as a deputy chancellor a Deputy barrister of not less than seven years' standing, or the holder of chancellor. a judicial appointment." By Sect. 11, "No person shall by reason of any employment Employment or emolument under this act acquire any right to compensation, under act no superannuation, or other allowance on abolition of office or ground for otherwise." pension, &c. Sect. 12 gives the following definitions, "unless the context Definitions. otherwise requires' “Clergyman” means a clergyman, not being a bishop of a diocese, who is in holy orders in the Church of England, or who, though ordained by a bishop of another church, is permitted to officiate as a priest or deacon of the Church of England: 66 Chancellor" means the judge of the consistory court by whatever name known : "Provincial court" means as respects the province of Canter 66 bury the Arches Court of Canterbury, and as respects County" includes a riding or division having a separate court "Member of a cathedral church" means any dean, resi- (m) This section would seem to render it doubtful whether the Commissary Court of Surrey which has consistorial jurisdiction over the portion of the diocese of Winchester Exclusion of question of doctrine or ritual, and savings. Short title, commence ment of act, and repeal. Rules. Cause under this act. "Judicial appointment" includes a chairmanship of quarter sessions and a police or stipendiary magistrateship: "Judgment" includes decree and order: "Prescribed" means prescribed by rules made in pursuance of this act : The expressions "immoral act," "immoral conduct," and "immoral habit" shall include such acts, conduct, and habits as are proscribed by the seventy-fifth and one hundred and ninth canons issued by the Convocation of the Province of Canterbury in the year one thousand six hundred and three (m). Sect. 13. Sub-section 1 provides that nothing in this act shall "(b) affect any prerogative of her Majesty the Queen as Sub-section 2 enacts:-"This act shall apply only to a clergyman who either holds preferment within the meaning of this act, or resides or has committed the offence in England or Wales; and where a clergyman holds a licence from a bishop in England or Wales, this act shall apply to that clergyman, notwithstanding that he resides elsewhere, as if he held preferment in the diocese of that bishop." By Sect. 14, "(1.) This act may be cited as the Clergy Discipline Act, 1892. "(2.) This act shall come into operation at the expiration of three months next after it passes, and, so far as regards any prosecution and trial under this act, apply to offences committed before or after the passing or commencement thereof. 66 (3.) The Church Discipline Act, 1840, shall, except so far as the sections in the schedule to this act are applied by this act, be repealed as respects any proceeding instituted after the commencement of this act against a clergyman for an offence for which he can be prosecuted or his benefice declared vacant under this act." Rules under sect. 9 were made in 1892 and 1893, and are published by the Queen's Printers, and in vol. 62 of the "Law Journal," and "Statutory Rules and Orders" for 1892 and 1893. One case only under the act has as yet come into the Law Reports-The Bishop of Rochester v. Harris: a case of drunkenness ("). (m) These Canons are given at pp. 840 and 832, respectively. (n) 1893, P. p. 137. CHAPTER XI. VISITATION. SECT. 1.-General Law. 2.-Bishop's Triennial Visitation. SECT. 1.-General Law. For the government of the church and the correction of Origin. For the first six hundred years after Christ, the bishops in Who shall dioceses every year, and they had several deacons in every diocese to assist them. After that they had authority in case of sickness them; and hereupon, as should seem, they cantoned their great or other public concerns, to delegate priests or deacons to assist dioceses into archdeaconries, and gave the archdeacons commissions to visit and inquire, and to give them an account of all at the end of their visitations; and the bishops reserved the third year to themselves, to inform themselves (amongst other things) how the archdeacons, their substitutes, performed their duties (b). By a constitution of Otho, archbishops and bishops shall go How often about their dioceses at fit seasons, correcting and reforming the and in what churches, and consecrating and sowing the word of life in the order. Lord's field (c). And, regularly, the order to be observed therein is this: In a diocesan visitation, the bishop is first to visit his cathedral (a) God. App. p. 7. Cf. Stillingfleet, Eccl. Cas. Vol. I. pp. 145, 242 -263; Bishop Gibson on Visitations; Barbosa, de Officio et Potestate Episcopi; De Visitatione cujuscumque Prælati Ecclesiastici, a Gaudentio de Janua; De Episcopis, eorum Auctoritate, Officio et Potes tate, Johannis Bertachini a Firmo; (b) Degge, pt. 2, c. 15; Johns. (c) Otho. Athon, p. 56. Difference between visitor of charitable foundation tical visitor. church; afterwards the diocese. In a metropolitical visitation, the archbishop is first to visit his own church and diocese; then in every diocese to begin with the cathedral church and proceed thence as he pleases to the other parts of the diocese. Which appears from abundance of instances in the ecclesiastical records, as well of papal dispensations for the archbishop to visit without observing the said order, as of episcopal licences for the visitor to begin in other parts of the diocese than in the cathedral church (d). And this sprang from the precept of the canon law, which requires that the archbishop willing to visit his province shall first visit the chapter of his own church and city, and his own diocese; and after he has once visited all the dioceses of his province, it shall be lawful for him (having first required the advice of his suffragans, and the same being settled before them, which shall be put in writing that all may know thereof) to visit again, according to the order aforesaid, although his suffragans shall not assent thereunto. And the like form of visiting observed by the archbishops shall be observed also by the bishops in their ordinary visitations (e). The office of visitor of a charitable foundation was probably derived from the ecclesiastical visitor; but there is considerable difference between their powers. The visitor of a charity acts under the direction, express or implied, of the founder, as to and ecclesias- whom the maxim is cujus est dare ejus est disponere. Such a visitor is tied to no forms; he decides summarily and without appeal, and may suspend or deprive any beneficiary or officer of the foundation, either for fault or for contumacy. The only restrictions upon him are that he should observe such obvious rules of justice, as, for example, to give any accused person the opportunity of self-defence (f). But the ecclesiastical visitor, though he may decide summarily and with little attention to form, yet sits in a certain sense in a court, and is liable to the same appeals as he would be in his ordinary court. And on ecclesiastical visitations the visitor might (till the passing of 3 & 4 Vict. c. 86) proceed to suspend or deprive for contumacy or crime, subject to the right of appeal (g). General power of ecclesiastical visitor. But a prohibition has been issued to a bishop, who claimed a right to present by lapse, under pretence of his visitatorial authority, to the office of a canon residentiary of his church, it being a freehold office, and the right of election thereto in the dean and chapter; nor does it seem certain that by virtue of his visitatorial power he may, in a case where the dean and (d) Gibs. P. 957. (e) Ibid. (f) Lord Holt's judgment in Phillips v. Bury, 2 T. R. p. 353, is still the best compendium of the law on this subject. (g) Bp. of Kildare v. Archbishop of Dublin, 2 Bro. P. C. p. 179; Harrison v. Archbishop of Dublin, 2 Bro. P. C. p. 199; Rex v. Bp. of Chester, 1 Wils. p. 206; 1 Black. W. p. 22, chapter have neglected or refused to appoint such a canon, appoint one pro tempore until such election be had (). The two leading modern cases on the power of an ecclesiastical visitor have arisen in cathedral cases; the earlier one is that of York, in 1840; the later, that of Exeter, in 1874. In the former case the Archbishop of York held a visitation The Dean of of the dean and chapter of that cathedral church, and appointed York's Case. the late Dr. Phillimore his commissary, for the purpose of carrying it into effect (i). Among the presentments made to the commissary was one Proceedings which charged the dean with the sale of the livings in his at visitation. ecclesiastical patronage. The dean denied the jurisdiction of the commissary to try the charge, and conducting himself with violence in court, was pronounced in contempt, for which he refused to purge himself during the trial. The commissary proceeded to try the charge in the visitatorial court, witnesses were examined riva voce, and their depositions taken down by the registrar. Finally, the commissary, in a judgment already quoted from (), pronounced the dean guilty of simony, and to have incurred the penalty of deprivation on the twofold ground of contumacious behaviour and simoniacal practices. The dean applied for a prohibition, after sentence, to the Court Application of Queen's Bench (4). For the prohibition it was argued, that the for procommissary had exceeded the limits of the visitatorial jurisdiction, hibition. even as it stood before the 3 & 4 Vict. c. 86, as the proceedings of counsel. Arguments ought to have been by articles, like all criminal suits in the eccletrial was clearly illegal,-that the chapter of York were exempted siastical courts; but since the statute of 3 & 4 Vict. the whole were bad in the absence of the party accused,-that evidence from the visitatorial power of the ordinary, that the proceedings was taken ricâ roce. On the other hand it was argued against the prohibition, that jure ordinario, every bishop or metropolitan Imight visit his cathedral,-that if he might visit he might punish, and therefore deprive if the offence was of a magnitude framed alio intuitu,-that the visitatorial rights required express to require such punishment,-that the 3 & 4 Vict. c. 86 was words to take them away,-that they were saved by sect. 25 of that act (7),-that such power had been exercised in the case of the Dean of Wells (m),-that there was a court of appeal (the judicial committee of the privy council) which would correct the judgment if wrong,-that it was competent to a visitor to pro (A) Bp. of Chichester v. Harward, 1 T. R. p. 650. and for the visitation of York (1) Vide supra, Part II. Chap. IV., cathedral in that case, pp. 169 and 879. supra, () Supra, pp. 854-858. D. (k) Reg. v. P. 202; 2 Q. B. p. 2; 6 Jur. P. 412. (1) Vide supra, p. 1014. (m) Walrond v. Pollard, Dyer, p. 273, where the Bishop of Bath and Wells deprived the Dean of Wells by his commissary. It is remarkable that this case, though much relied upon by the counsel against the prohibition, was not mentioned in the judgment. Vide supra, pp. 166, 1014. |