1844. May 31st. BURDER against 17th (a). It provides, "That every one of the ministers shall be careful to observe that decency and gravity of apparel which becomes his profession, and may preserve due respect to his person; and they shall be very circumspect in the whole course of their lives, to keep themselves from such company, actions, and haunts, as may bring any blame or blemish upon them. Nor shall they dishonour their calling by games, taverns, usuries, trades or occupations not befitting their functions, but shall study to excel all others in purity of life, gravity, and virtue." The 22nd canon is directed against particular offences, and, amongst them, fornication, and applies equally to the clergy as to the laity. It was held, by the Court Royal, that, under this general canon, the Ecclesiastical Court had no power to take cognizance of offences triable in the temporal Courts; but the Judicial Committee held, that, under the 17th canon, and another (the 46th) the Ecclesiastical Court had power to proceed against members of the Church, and clerks in Holy Orders; for the purpose of restraining them in such habits of life. The result of the judgment of the Privy Council was to relax the prohibition, and to allow the Ecclesiastical Court in Jersey to proceed. That case is somewhat of a similar description with the present, for it was there alleged, "That rumours of a most serious nature had for some time past been publicly circulated touching the conduct (a) These canons were compiled by order of James 1., A.D. 1623, by Abbott Archbishop of Canterbury; Williams Bishop of London, then Lord Keeper; and Andrews Bishop of Winchester. of ; accusing him of leading a most scandalous life, and of having committed indecent as well as criminal acts; to the great scandal of religion, and especially of the Established Church of which he is a minister." That case does seem to me to go the length of declaring, that the Ecclesiastical Court has jurisdiction over clerks in Holy Orders, for the purpose of deprivation and suspension; although, to a certain extent, that may be punishment; but still punishment is not the object of the proceeding; the object is to remove the party from the office in relation to which he has so misconducted himself. I am of course now considering that the facts charged in these Articles may be established in proof; and the Court does not mean to go in detail through these Articles; I do not understand them to charge an actual offence, but a series of acts obscene and indecent in themselves. This person was the chaplain of a jail, and in the course of that duty a person was committed to his care and superintendance; and the charge is that of vicious propensities existing, and to be proved by overt acts. In the case from Jersey it was argued, that as the offence was laid, evidence of actual guilt might be given; but that objection was disallowed, and it was said, it was a proceeding to remove a scandal, and that the possibility of such evidence being given, was no ground for issuing the prohibition. Surely! No clergyman can be suffered to remain in the cure or possession of an ecclesiastical benefice whilst labouring under such an imputation as these Articles charge; it may be mere report, but still it is a scandalous report, and it arises out of con 1844. May 31st. BURDER against 1844. May 31st. BURDER against duct. I should like to know, how parishioners can receive the communion, hear the prayers of the Church read, or receive consolation in their dying moments, from a person labouring under such imputations as are here charged? Are his parish ioners to receive advice or consolation at the hour of death from this party? Must not the effect, if the Ecclesiastical Court has no jurisdiction to interfere in such a case, be, that the parishioners, from the actual disgust which must arise even from the imputation whilst unrefuted, will abstain from any communication with the party; and, if he be allowed to remain in his benefice, will not the effect be virtually to deprive the parishioners of any of those spiritual offices and benefits which they are entitled to expect and require at the hands of their minister. I am, therefore, of opinion, both upon principle, and the authority of the cases to which I have referred, that there is no ground whatever for concluding the jurisdiction of this Court; and I consider that this Court has jurisdiction to examine into this case for the purpose of deprivation and suspension; and not only to entertain the suit, but to pronounce a sentence either of suspension or deprivation, as may seem meet to this Court, and according to the magnitude of the offence, to be shewn by the evidence to be produced against the clergyman against whom these charges are made; provided the charges be substantiated in evidence. I am therefore of opinion, that these Articles are admissible, and accordingly, I admit them to proof. I think, however, that there is one of the concluding Articles which is not admissible. This 1844. BURDER against Reverend person appears, in addition to his other preferment, to hold the office of chaplain of a jail, May 31st. and it is against him in the discharge of his duties of that office that this offence is imputed. The Article is the seventeenth, and it refers to inquiries made privately by the visiting justices of the jail; and the conclusion to which they came, namely, that the party should be suspended from his office, whereupon he resigned his appointment; and the Article has annexed a paper purporting to be a true copy of the minutes of the resolution of the visiting justices, as entered upon the journals of the jail. I cannot see how this can be made evidence in any way; I cannot see how, because these justices take upon themselves to inquire into a certain report, and upon the evidence they receive in the course of that investigation, feel bound to exercise the discretionary power reposed in them, and to suspend this party from his office of chaplain, that can be evidence against the party in this cause. With respect to the evidence to be adduced, this is not the time to enter upon a discussion of, or to give any opinion upon that point; the parties by whom these charges are to be proved, may, as has been said, be persons whose testimony will not be entitled to receive any credit; it may prove so, but the Court cannot determine, à priori, whether they are or not competent to give evidence; or whether their testimony will or will not be sufficient. Therefore, at the present moment, I content myself with rejecting the seventeenth Article; admitting the rest of the Articles to proof; and reserving all questions until hearing of the cause. [A rule nisi for a prohibition has been granted in this case.] but discharged 1844. May 31st. A child, baptized with water in the name of the Holy Trinity, by a person alleged to be in heresy or The office of the Judge promoted by TITCHMARSH v. CHAPMAN. [See the facts of this case reported ante, p. 703.] The Reverend Mr. Chapman having appeared absolutely, an allegation was offered on his part, schism with the and was opposed by, Church of Excommuni cation, ipso facto, must be preceded by a declaratory sentence of a competent Court. The Queen's Advocate and Addams. Phillimore and Harding in support. SIR HERBERT JENNER FUST. The question before the Court in the present case respects the admissibility of an allegation, which is offered on behalf of the Rev. W. H. Chapman, the party cited in this cause, which is a cause of office, for refusing to bury the corpse of a child brought to the churchyard, of which he is the vicar, and of whose interment due notice is alleged to have been given. The question comes before this Court by virtue of letters of request from the Bishop of the diocese of Ely, within whose diocese the party cited holds preferment. The citation in the cause was returned on the fourth session of Easter Term in the last year, and an appearance was given to that citation, but under protest; that protest was extended in acts of Court, for the reasons therein set forth, and pressed in argument; the Court was of opinion, that the protest could not be sustained, and |