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Gorham v The Bishop of Exeter

State Trials Cited authorities 17 Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date25 April 1850
Date25 April 1850
CourtState Trial Proceedings
24 Hen. 8. c.12. Appeals to Rome (Reformation statute)
25 Hen. 8. C. 19. Canons: Crown : See of Rome (Reformation statute)
25 Hen. 8. c. 20. Bishop : First Fruits : See of Rome (Reformation statute)
25 Hen. 8. c. 21. (Reformation statute)
26 Hen. 8. c. 1. Supremacy of the Crown (Reformation statute)
14 Cha. 2. c. 4. Act of Uniformity
2 & 3 Will. 4. c. 92. Privy Council Appeals Act
3 & 4 Will. 4. c. 41. The Judicial Committee Act, 1833
GORHAM against THE BISHOP OF EXETER. PROCEEDINGS IN THE COURT OF QUEEN”S BENCH BEFORE CAMPBELL, L.C.J., PATTESON, WIGHTMAN, AND ERLE, JJ., ON MOTION FOR A PROHIBITION APRIL 15th--25th, 1850. (Reported in 15 Q.B. 52, 19 L.J., Q.B. 279.) The Bishop of Exeter having refused, on the ground of alleged doctrinal error, to institute the Rev. G. C. Gorham to the Crown living of Brampton Speke, to which he had been presented by the Crown, the presentee commenced a suit of Duplex Querela in the nature of an appeal in the Arches Court of Canterbury, and, judgment having been given against him, appealed to the Queen in Council. The Judicial Committee, to whom the appeal was referred, reversed the decision of the Arches Court, and ordered the appellant to be instituted. The bishop thereupon moved the Queen”s Bench for a prohibition against the execution of the judgment on the ground that, in causes touching the Crown, the appeal lay by statute to the Upper House of Convocation. Prohibition (a) Ecclesiastical causes touching Crown-21 Hen. 8. c. 12., and 25 Hen. 8. c. 19. The Act " for the restraint of appeals," 24 Hen. 8. e. 12 , after abolishing appeals to Rome in matrimonial, testamentary, and tithes cases, provided, s. 8, that all suits relatino. thereto, commenced in any of the Archbishops” Courts, should be there dednitely adjudged without any further appeal otherwise than as in that Act limited. Section 9 provided that in any such case depending in any of the courts mentioned in the Act " which hath, doth, shall, or may touch the King, his heirs, &c.," it should be lawful for the parties grieved to appeal from any of the said courts to the Upper House of Convocation. The Act "for the submission of the clergy and restraint of appeals," 25 Hen. 8. c. 19. s. 3, prohibited all manner of appeals to Rome, and provided that "all manner of appeals . . shall be made . . after such manner, form, and condition as is limited for appeals . . . in causes of matrimony, tithes, oblations, and obventions " by the above statute, 24 Hen. 8. c. 12. Section 4 then provided that " for lack of justice at or in any of the courts of the Archbishops," it should be lawful to appeal to the King in Chancery, who by commission under the great seat should appoint persons to hear such appeal. The Judicial Committee was substituted for such commission by 2 & 3 Will. 4. e. 92. s. 3., and 3 & 4 Will. 4. c. 41. s. 3. Held by the Court of Queen”s Bench That, under the above statutes, even where the matter touched the Crown, an appeal lay from the courts of the Archbishop to the Judicial Committee. (a) See Martin v. Mackonochie, 3 Q.B.D. 730, 4 Q.B.D. 784, 6 App. Ca. 424, as to whether a prohibition would lie to the Privy Council. This was a motion for a rule to show cause why a prohibition should not issue to the Dean of the Arches and to the Archbishop of Canterbury, to prohibit them from requiring the Bishop of Exeter to institute the Rev. George Cornelius Gorham, to the vicarage of Brampton Speke ; and also to prohibit the said Dean and Archbishop from instituting the said G. C. Gorham, or otherwise carrying into execution an order made by her Majesty in Council on March 9th, 1850, on 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 Bishop of Exeter. The material facts, as stated on affidavit, were as follows : On November 2nd, 1847, the Queen, as Patron in right of the Crown of the living of Brampton Speke, in the diocese of Exeter, then vacant, by letters patent presented the said Rev. G. C. Gorham to the said Bishop as her Majesty”s clerk to the said vicarage, commanding the Bishop to admit the said G. C. Gorham thereto, and to institute, induct, and invest him, and to do all other matters concerning the admission, institution, and induction which to the Bishop”s pastoral office belonged. The Bishop, after examining the said G. C. Gorham, refused to institute him on the ground that he held and maintained 1073] Gorham against the Bishop of Exeter, 1850. [1074 opinions contrary to the true Christian faith and the doctrines of the Church of England, and the Thirty Nine Articles of Religion and the Book of Common Prayer authorized and enjoined by the. Act of Uniformity, 13 & 14 Cha. 2. c. 4. ; and was therefore an unfit person to be admitted, instituted, and inducted to the said vicarage.(a) The Bishop having notified the Queen of his refusal by letter to one of her Majesty”s Principal Secretaries of State, the Attorney-General commenced an action of Quare impeclit against him in the Court of Queen”s Bench. Likewise in Trinity Term, 1848, the Rev. G. C. Gorham, commenced, against the Bishop in the Arches Court of Canterbury, a suit of Duplex Querela, in the nature of an appeal (I)) from the judgment and determination of the Bishop. (a) In his affidavit supporting the rule, the Bishop set out 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 full and sole right and authority by law to admit, institute, and induct, each and every person from time to time presented by her Majesty as such patron as aforesaid for admission, &c. ; and before such admission to examine the person so presented, and to ascertain 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 finding 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, 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, authorized and enjoined by a statute, &c. (Act of Uniformity, 13 & 14 Cha. 2. c. 4.); and, by reason thereof, deponent, as such Bishop, &c., thereupon refused to admit the said G. C. Gorham to the said vicarage, or to institute, induct, or invest him, &c. (b) "The clerk refused by the Bishop may also have a remedy against him in the Spiritual Court, denominated a Duplex Querela ; which is a complaint in the nature of an appeal from the Ordinary to his next immediate superior ; as from a Bishop to the Archbishop, or from an Archbishop to the Delegates ; and if the Superior Court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant." 3 Bla. Coro. 247 ; and Burn”s Eccl. Law, vol. 2. (a) See " The Case of the Rev. G. C. Gorham against the Bishop of Exeter as heard and determined before the Judicial Committee. By E. F. Moore, Lond. l852 " ; Brodrick and Freemantle”s Ecclesiastical Judgments, 64 ; Brook”s Six Judgments of the Privy Council in Ecclesiastical Cases, 7. Part of the headnote there given is as follows :- " lt is not for the Court to decide whether opinions are theologically sound or unsound, but whether such opinions are contrary or repugnant to the doctrines which the Church of England by its articles, formularies, and rubrics, requires to be held by its ministers. " In all cases in which the articles, considered as a test, admit of different interpretations : Held that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something else which the Church has elsewhere allowed or required; and if there be any doctrine on which the articles are silent, or ambiguously expressed, so as to be capable of two meanings : Held that it was intended. to leave that doctrine to...

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