Gorham v The Bishop of Exeter
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1850 |
| Date | 25 April 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 377
QUEEN'S BENCH.
S. C. 19 L. J. Q. B. 279; 14 Jur. 480: in Court of Common Pleas, 10 C. B. 102; 19 L. J. C. P. 200; 14 Jur. 522: in Court of Exchequer, 5 Ex. 630; 19 L. J. Ex. 376; 14 Jur. 876.
[52] g-ohham against the bishop of exeter. Thursday, April 25th, 1850. By atat. 24 H. 8, c. 12, as. 2, 5, 6, 7, 8, all cauaea within the spiritual jurisdiction, relating to wills, to matrimony and divorce, and to tithes, oblations, &c., were to be determined in the King's Courts; and, where, in such cases, the appeal used to be made to the See of Rome, it was thenceforward to be carried from the Archdeacon's Court (if there commenced) to the Bishop's, and from the Bishop's to that of the Archbishop, whose decision was to be final. By sect. 9, in case any such cause should touch the King, the appeal from any of the said Courts was to be made to the Upper House of Convocation for the province. By stat. 25 H. 8, c. 19, sb, 3, 4, no appeal was to be made to Home in any cauae arising within this realm; but all were to be made in the manner limited by the prior Act for causes of matrimony, tithes, oblations, &c. An ulterior appeal was given, for lack of justice in the Archbishop's Courts, to the King in Chancery ; and, on such appeal, a commission under the Great Seal was to issue to such persons aa the King should name, to bear such appeal. The Judicial Committee of the Privy Council was substituted for such commission by stats. 2 & 3 W. 4, c. 92, s. 3, and 3 & 4 W. 4, c. 41, s, 3. Held, under these statutes, that, if the Queen presents a clerk to a vicarage in the gift of the Crown, and the bishop refuses to admit him on the ground that he maintains unsound doctrine, and, on a duplex querela brought in the Archbishop's Court, the Judge, for the same reason, gives sentence confirming auch refusal, the appeal lies to the Judicial Committee of the Privy Council; not to the Upper House of Convocation. [S. C. 19 L. J. Q. B. 279; 14 Jur. 480: in Court of Common Pleas, 10 C. B. 102; 19 L. J. C. P. 200; 14 Jur. 522: in Court of Exchequer, 5 Ex. 630; 19 L. J. Ex. 376; 14 Jur. 876.] Sir F. Kelly, on the first day of this term (April 15th), moved (a)2 for a rule to shew cauae why a writ of prohibition should not issue to the Dean of the Arches, and to the Archbishop of Canterbury, to prohibit them from requiring the Lord Bishop of Exeter to institute the Reverend George Cornelius Gorham to the vicarage of Bramford Speke, and also to prohibit the said dean and archbishop from instituting the said G. C. Gorham to the said vicarage, or otherwise carrying into execution an order of Her Majesty in Council, made on the 9th March 1850, upon a report of the Judicial Committee of the Privy Council in an appeal from the judgment of the Court of Arches in a suit of duplex querela between the said G. C. Gorham and the said Lord Bishop. The motion was grounded on affidavits, which stated the following facta. The vicarage of Bramford Speke in Devonshire is a benefice with cure of souls in the diocese of Exeter. The patronage and right of presentation belong to the Queen, who, in right of her Crown, is seised in fee of [53] the advowson, as one in gross. On March 3d, 1847, the vicarage became void by death; and, on November 2d, 1847, the beuefiee remaining so void, the Queen, as patron, in right of the Crown, did, by letters patent of that date, present to the Bishop of Exeter the Reverend George Cornelius Gorham as Her Majesty's clerk appointed to the said vicarage, commanding the bishop to admit the said G. C. Gorham thereto, and to institute, induct and invest him, and do all other matters concerning the admission, institution and induction, which to the bishop's pastoral office belonged. The bishop, in an affidavit sworn by him in support of the present motion, alleged that he, as such bishop as aforesaid, is the Ordinary, and hath full ecclesiastical and spiritual jurisdiction in and over the said vicarage and the vicar thereof for the time being; and that, as such bishop and Ordinary, he has full and sole right and authority by law to admit, institute and induct, or to authorise the admission, institution and induction of, each and every person from time to time presented by Her Majesty as auch patron as aforesaid for admission, &c., into the said vicarage as the vicar thereof: ()' Lord Campbell C.J., Patteson and Erie Js. Wightman J. had left the Court. (a)2 Before Lord Campbell C.J., Patteson, Wightmau and Erie Js. 378 GORHAM V. THE BISHOP OF EXETER 15 Q. & M. and that, before such admission, &c., aa aforesaid, he, as such bishop and Ordinary, has also the full and sole right and authority by law, and it is moreover his bounden duty and obligation, to examine the person so presented, and to ascertain and determine, as the spiritual Judge, the fitness and qualifications of such person for such admission, institution and induction, with reference as well to his faith and doctrine as to his learning, morals, ability and sufficiency according to the laws ecclesiastical of this realm: and, in the event of his finding and determining, upon such ex-[54]-amination, that the person so presented is unfit or disqualified by reason of his insufficiency in any of the matters aforesaid, then to refuse to admit, institute or induct such person. The affidavit further stated that, on the presentation by Her Majesty of the said G. C. Gorham, and after receipt of the said letters patent, the bishop, as such bishop and Ordinary, according to his said right and duty in that behalf, examined the said G. C. Gorham iu order to ascertain and determine whether he was fit and qualified according to the laws ecclesiastical of this realm to be admitted, &c., to the said vicarage; and that, upon such examination, deponent ascertained and determined, according to his conscientious judgment and belief, that the said G. C. Gorham did then hold, maintain and affirm certain unsound doctrines and opinions contrary to the true Christian faith, and contrary to and inconsistent with the doctrines of the Church of England, the Thirty-Nine Articles of Religion, and the Book of Common Prayer, authorised and enjoined by a statute, &c. (Act of Uniformity, 13 & 14 Car. 2, c. 4): and that, by reason and in consequence of the said G. C. Gorham so holding, maintaining and affirming such doctrines and opinions, the deponent, as such bishop and Ordinary, did then adjudge and determine that the said G. C. Gorham was, as this deponent still believes him to be, a person unfit and unqualified to be admitted, instituted and inducted to the said vicarage; and that such holding, maintaining and affirming such doctrines and opinions as aforesaid was a lawful and sufficient cause for this deponent's refusing to admit, institute and induct the said G. C. Gorham to tba said vicarage; and, by reason thereof, deponent, as such bishop, &c., thereupon refused [55] to admit the said G. C. Gorham to the said vicarage, or to institute, induct or invest him, &c. The bishop, in a convenient time (about 21st March 1848), gave notice to Her Majesty of his refusal, by letter to one of the principal Secretaries of State; and, in Michaelmas term, 1848, an action of quiere impedit was commenced against the bishop in this Court by the Attorney General on behalf of Her Majesty; which action was still depending when the present motion was made. In Trinity terra, 1848, the said G. C. Gorham, in consequence of the bishop's refusal to admit, &c., commenced a suit of duplex querela against the bishop in the Arches Court of Canterbury, such suit being in the nature of an appeal from the said judgment and determination of the bishop as such bishop and Ordinary. In 1849 the suit was heard by the Dean of the Arches and official principal, Sir Herbert Jenner Fust: and he, on 2d August, 1849, gave judgment that the said G. C. Gorham did hold and maintain such unsound doctrines and opinions as aforesaid, and that, by reason thereof, he was unfit and unqualified to be admitted, instituted and inducted to the said vicarage as aforesaid, and that the bishop had shewn sufficient reason for refusing, and was justified in refusing, to admit, &c. : and the defendant was dismissed with ousts. The said G. C. Gorham appealed from that judgment to the Queen iu Council, and petitioned Her Majesty "that the said judgment might be reversed and annulled, and that the said G. C. Gorham might be declared to be fit and qualified to be, and might be, admitted, instituted and inducted to the said vicarage." Her Majesty referred the petition to the Judicial Com-[56]-mittee; and they heard counsel on both the sides on the petition and, on or about 8th March, 1850, reported to the Queen that judgment of Sir H. J. Fust ought to be reversed, and it ought to be declared that the bishop had not shewn sufficient cause why the said G. C. Gorham should not be admitted, &c.; and that the principal causa ought to be...
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