A Suit in the Arches Court of Canterbury, Entitled "Arches. The Office of the Judge Promoted by Barnes against Shore."
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 1013
IN THE QUEEN'S BENCH.
S. C. 15 L. J. Q. B. 296; 10 Jur. 688. See also 1 Ron. Ecc. 382; 10 Jur. 887. See Freeland v. Neale, 1848, 1 Rob. Ecc. 651; Combe v. Edwards, 1878, 3 P. D. 136; Mackonochie v. Penzance, 1881, 6 App. Cas. 435; Nesbitt v. Wallace, [1901] P. 365.
[629] cases argued and determined in the queen's bench, in easter term and vacation, IX. victoria. The Judges who usually sat in Bane in this term and vacation were Lord Denmaii C.J., Patteson J., Williams J., Wightman J. [640] in the matter of a suit in the arches court of canterbury, entitled " arches. the office of the judue promoted ur babnbs against shore." 1846. The fourth section of the Toleration Act, 1 stat. 1 W. & M. c. 18, exempting persons who shall take the oaths and subscribe the declaration there mentioned from prosecution in the Ecclesiastical Court for non-conforming to the Church of England, extends not only to lay persona but to clergymen who, after being ordained, dissent from the Church. Semble, that, to claim this exemption, it is sufficient that the party states himself to be a dissenter, without any more formal act. But a person ordained a priest in the Church of England cannot, in this manner or otherwise at his own pleasure, divest himself of his orders, so as to exempt himself from correction by the bishop for breach of ecclesiastical discipline. Performance, by such priest, of the Church service in an uucousecrated chapel, not licensed by the bishop, and against his monition, is such a breach of discipline, arid not a mere act of nonconformity protected by the Toleration Actor by stat. 52 G. 3, c. 155. So held on motion fora prohibition, where articles had been exhibited in the Ecclesiastical Court, under stat. 3 & 4 Viet. c. 86, against a priest for such irregular performance of service, and he put in defensive allegations, stating that, before he did the acts complained of, he had seceded from the Church of England, and was minister of a congregation of Protestant dissenters, assembling in the unlicensed chapel. Prohibition refused. [S. C. 15 L. J. Q. B. 296 ; 10 Jur. 688. See also 1 Rob. Ecc. 382 ; 10 Jur. 887. See 1014 BARNES V. SHORE 8 Q. B,'64l. Freeland v. Neale, 1848, 1 Bob. Ecc. 651; Cmnbe v. Edwards, 1878, 3 P. D. 136; Mackonochie v. Penzance, 1881, 6 App. Cas. 435; Neslittv. Wallace, [1901] P. 365.] Sir F. Kelly, Solicitor General, in Michaelmaa term, 1845, obtained a rule calling upon Ralph Barnes (on notice to his proctor), and Sir Herbert Jenner Fust, Ktiigbt, LL.D., Official Principal of the Arches Court of Canterbury (on notice to him or his deputy), to shew cause why a prohibition should not issue to the said Arches Court, to prohibit that Court from further proceeding in the suit between the parties. The rule was granted on the affidavit of " James Shore, of Bridgetown, in the parish of Berry Pomeroy, in the county of Devon, clerk," who stated that, on'3d May, 1845, Sir H. J. Fust, Official Principal, &c., did (as deponent was informed and believed) "give and administer in the Arches Court, certain articles," &c., "which articles," &c. were and are of the tenor following, viz. " Arches. The office of the Judge promoted by [641] Barnes against Shore. In the name of God, Amen. We H. J. Fust, Knight, LL.D., Official Principal," &c., " do, by virtue of our office, at the voluntary promotion of Ralph Barnes of the City of Exeter, gentleman, object, give and administer to you, the Rev. James Shore, clerk, a priest or minister in holy orders of the United Church of England and Ireland, of Bridgetown, in the parish of Berry Pomaroy, in the county of Devon and diocese of Exeter and province of Canterbury, all and singular the articles, heada, positions or interrogatories hereurider written or hereafter mentioned, touching and concerning your soul's health and the lawful correction and reformation of your manners and excesses, and more especially for your having offended against the laws ecclesiastical by publicly reading prayers, preaching, administering the Holy Sacrament of the Lord's Supper, and performing ecclesiastical duties and divine offices according to the rites and ceremonies of the said United Church of England and Ireland, in a certain uncon-secrated chapel or building, situate in the said parish," &c., " without any licence or authority for so doing, and contrary to and in spite of the injunction or monition of the Right Rev. Father in God Henry by divine permission Bishop of Exeter; as follows, to wit: 1. "We article and object to you, the said Rev. J. S., clerk, that, by the laws, canons and constitutions ecclesiastical of this realm, no minister of the Church of England can lawfully officiate in any parish church or chapel, or any other place within this realm, by publicly reading prayers, preaching, administering the Holy Sacrament of the Lord's Supper, or performing any other ecclesiastical duties therein according to the rites and ceremonies of the United Church of England and [642] Ireland, as by law established, without a sufficient permission or authority for so doing, and a licence first had and obtained from the bishop of the diocese or Ordinary of the place, having episcopal jurisdiction, in writing under his band and seal for that purpose; and that you know, believe or have heard that persons offending in the premises are to be duly and canonically punished and corrected for the same; and we article and object to you every thing in this and subsequent articles contained jointly and severally. 2. " We also article," &c. " that you, being at such time a deacon of the Church of England, were, on or about the 25th October 1829, duly admitted into the holy order of priest of the Church of England by the Right Rev. Father in God William, by divine permission then Lord Bishop of Exeter; and that as and for a priest and minister of the said Church you have ever since been, and now are, commonly accounted, reputed and taken : and we article," &c. "as before." 3. "Also we article," &c. "that, in supply of proof," &c., "we exhibit," &c. : the article then referred to, and authenticated, the exhibit of an extract from the register book of ordinations by the bishop, shewing that, on 25th October 1829, at an ordina tion held by the Bishop of Exeter, James Shore, among others, was admitted into the order of priesthood, first taking the requisite oaths, and subscribing the Thirty-Nine Articles of religion, and the three articles set forth in the 36th canon. And the now recited article verified the matters stated in the extract, and identified the James Shore therein mentioned with the party to whom these articles were directed. 4. "Also we article," &c. " that the aforesaid Right Reverend," &c., " Henry," &c., "now Lord Bishop of [643] Exeter, did, by an instrument in writing under his hand and episcopal seal, and bearing date on or about the 7th March 1844, duly revoke a licence, previously granted to you by him, the said Lord Bishop of Exeter, to perform 8Q.B.M4. BARNES V. SHORE 1015 the office of minister of the aforesaid uncoasecrated chapel or building situate in the said parish of Berry Potneroy, in the county," &c., "and did recall the authority given to you by such licence to perform the office of minister of the chapel or building aforesaid, and did strictly enjoin and charge you thenceforth to abstain from further performing the office of minister of the chapel or building aforesaid, and from officiating therein ; and that such instrument of revocation was duly served upon you on the 13th of the said month of March 1844: and we article," &c. "as before," 5. This article referred, in supply of proof, &c., to the original instrument of revocation, remaining in the bishop's registry at Exeter (and to be produced, if necessary, at the hearing of the cause), with a certificate of service indorsed : identified James Shore, as was done in the 3d article, and identified the chapel named in the recited instrument with the chapel mentioned in these articles. 6. This article authenticated the signature and seal of the bishop to the instrument of revocation, 7. " Also we article," &c. " that, notwithstanding the premises in the aforegoing articles mentioned, you did, on Sunday the 14th April, 1844, and also on Sunday the 28fch July in the said year 1844, take upon you publicly to read prayers, preach, administer (to wit on said 28th July, 1844) the Holy Sacrament of the Lord's Supper, and perform ecclesiastical duties and divine offices according to the rites and ceremonies of [644] the United Church of England and Ireland, in the said unconsecrated chapel or building situate in the said parish of Berry Pomeroy in the county," &c., " without any licence or authority for so doing, and contrary to and in spite of the aforesaid injunction or monition of the said Bishop of Exeter : and we article and object to you of any other time or times as shall appear from the proofs to be made in this cause, and as before." 8. " Also we article," &c. " that you were and are a priest or minister in holy orders of the United Church of England and Ireland, and reside within the said parish of Berry Pomeroy, in the county," &c., "and that there was and is a scandal and evil report in the said diocese against you the said Rev. J. S., clerk, as having offended," &e., by publicly reading, &c., and performing ecclesiastical duties, &c., (verbatim as in the introductory part of these articles) " in the said unconsecrated chapel or building situate in the said parish of B. P. without any licence or authority for so doing, and contrary to and in spite of the aforesaid injunction or monition of the said Bishop of Exeter; and that, by reason thereof, aud of a certain Act," &c. (3 & 4 Viet. c. 86), " ' for better enforcing church discipline/ and...
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