The Office of the Judge promoted by Sanders against Head
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 1843 |
| Date | 26 April 1843 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 645
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
Affirmed, 1842, 4 Moore, P. C. 186, 13 E. R. 273 (with note). See further, p. 565, post.
[32] the office of the judge promoted by sanders against head. Arches Court, Jan. 29th, 1842.-Church Discipline Act.-The bishop of the diocese having given notice of his intention of issuing a commission for the purpose of making inquiry as to the grounds of certain charges against a clerk in orders, under the 3rd sec. of 3 & 4 Viet. c. 86, without withdrawing such notice, issued letters of request to the Arches Court of Canterbury. Held, that the letters of request were sent to the Arches in the first instance, as required by the 13th section of the statute. [Affirmed, 1842, 4 Moore, P. C. 186, 13 E. E. 273 (with note). See further, p. 565, post.] This was a cause of office promoted under the statute 3 & 4 Viet, c 86, in virtue of letters of request under the hand and seal of the Bishop of Exeter, by Ralph Sanders, of the city of Exeter, against the Rev. Henry Erskine Head, rector of Feniton, in the county of Devon. The Judge having accepted letters of request from the Bishop of Exeter, a citation 01 decree issued, calling upon Mr Head to appear in this Court; to this citation or decree an appearance was given on behalf of Mr. Head, under protest. The decree, in which are embodied the letters of request, was as follows :- Herbert Jenner, Knight, Doctor of Laws, official principal of the Arches Court of Canterbury, lawfully constituted; to all and singular clerks and literate persons whomsoever and wheresoever, m and throughout the whole province of Canterbury, into whose hands these presents shall come, greeting. Whereas we have lately received letters of request from the right reverend father in God, Henry, by divine permission Bishop of Exeter, of the tenor following, to wit - "Henry, by divine permission, Bishop of Exeter, to the Right Honourable Sir Herbert Jenner, Knight, Doctor of Laws, official principal of the Aiches Court of Canterbury, Lawfully constituted, your surrogate, or some other competent judge in this behalf. [33] Whereas by a certain act of Parliament passed in the session of Parliament holden in the third and fourth years of the reign of her present Majesty Queen Victoria, intituled, ' An Act for better enforcing Church discipline,' it is enacted 1 that in every case of any clerk in holy orders of the United Church of England and Irelandj who may be charged with any offence against the laws ecclesiastical, or concerning whom there may exist scandal or evil report as having offended against the said laws, it shall be lawful for the bishop of the diocese within which the offence is alleged or reported to have been committed, on the application of any party complaining thereof, or, if he shall think fit, of his own mere motion, to issue a commission under his hand and seal to five persons, of whom one shall be his vicar-general, or an archdeacon or rural dean within the diocese, for the purpose of making inquiry as to the grounds of such charge or report.' And whereas it is in and by the said act also enacted ' that it shall be lawful for the bishop of any diocese within which any aueh clerk shall hold any preferment, or if he hold no preferment, then for the bishop of the diocese within which the offence is alleged to have been committed, in any case, if he shall think fit, either in the first instance or after the commissioners shall have reported that there is sufficient prima facie ground for instituting proceedings, and before the filing of the articles, but not afterwards, to send the case by letters of request to the Court of Appeal of the province, to be there heard and determined aeeording to the law and practice of such Court.' And whereas the Rev. Henry Erskine Head, a clerk in holy orders of the said United Church of England and Ireland, and rector of the rectory and parish church of Feniton, in the county of Devon and diocese of Exeter, and province of Canterbury, is charged with having, withim our said diocese of Exeter, offended against the laws ecclesiastical, by having written and published, or caused to be published, in a certain newspaper called the Western Times, dated 'Exeter, Saturday f August 21, 1841,' a letter entitled 'A View of the Duplicity of the present System of Episcopal Ministration, in a Letter addressed 646 SANDERS V. HEAD 3 CUET 34 to the Parishioners of Feniton, Devon, occasioned by the Bishop of Exeter's Circular on Confirmation, by Henry Erskine Head, A.M., Rector of Feniton, Devon,' in which letter it is openly affirmed and maintained that the 'Catechism,' the 'Order of Baptism,' and the ' Order of Confirmation,' in the Book of Common Prayer, contain erroneous and strange doctrine, and [34] wherein are also openly affirmed and maintained other positions in derogation and depraving of the said Book of Common Prayer, contrary to the statutes and to the constitutions and canons ecclesiastical of the realm, and against the peace and unity of the Church. Now, therefore, we the said Bishop of Exeter do hereby request you the said Eight Honourable Sir Herbert Jennar, Knight, Doctor of Laws, official principal of the Arches Court of Canterbury, lawfully constituted, your surrogate, or some other competent judge in this behalf, to issue a citation or decree under seal of the said Court, calling upon the said Henry Erskine Head, clerk, to appear at a certain time and place, therein to be specified, then and there to answer to certain articles, heads, positions, or interrogatories touching and concerning his soul's health, and the lawful correction and reformation of his manners and excesses, and more especially for having written and published, or caused to be published, the letter aforesaid, in manner aforesaid, to be administered to him at the voluntary promotion of Ealph Sanders, of the city of Exeter, gentleman, arid to hear and determine the said cause according to the law and practice of the said Court In witness whereof we have hereunto set our hand and seal this ninth day of November, in the year of our Lord one thousand eight hundred and forty-one, and in the eleventh year of our consecration. " H. exeter, L.s. " Signed, sealed, and delivered in the presence of Edwd. Toller, Jun." And whereas, at the petition of the proctor of the said Ralph Sanders, and in aid of justice, we have accepted of the said letter of request, and decreed to proceed according to the tenor thereof, and in pursuance thereof have decreed the said Reverend Henry Erskine Head, clerk, rector of the rectory and parish church of Feniton, in the county of Devon, diocese of Exeter, and province of Canterbury, to be cited and called into judgment, on the day, at the time and place and to the effect and in manner and form hercunder written (justice so requiring), we do therefore hereby authorize and empower, and strictly enjoin and command you, jointly and severally peremptorily to cite or cause to be cited the said Reverend Henry Erskina Head, clerk, to appear personally or by his proctor duly constituted before us, our surrogate, or some other competent judge in this behalf, in the Common Hall of Doctors' Commons, situate in the parish of St. Benedict, near [35] Paul's Wharf, London, and place of judicature there, on the sixth day after he shall have been served with these presents, if it be a general session, by-day, or additional court day of the said court, otherwise on the general session, by-day, or additional court day of the said court then next following, at the hour of ten o'clock in the forenoon, and there abide during the sitting of the Court, if necessary, then and there to answer to certain articles, heads, positions, or interrogatories touching and concerning his soul's health and the lawful correction and reformation of his manners and excesses, and more especially for having within the aaid diocese of Exeter offended against the laws ecclesiastical, by having written and published, or caused to be published, in a certain newspaper called the Western Times, dated "Exeter, Saturday, August 21, 1841," a letter entitled "A View of the Duplicity of the present System of Episcopal Ministration, in a Letter addressed to the Parishioners of Feniton, Devon, occasioned by the Bishop of Exeter's Circular on Confirmation, by Henry Erskine Head, A.M., Rector of Feniton, Devon;" in which letter it is openly affirmed and maintained that the " Catechism," the " Order of Baptism," and the " Order of Confirmation," in the Book of Common Prayer, contain erroneous and strange doctrine; and wherein are also openly affirmed and maintained other positions in derogation and depraving of the said Book of Common Prayer, contrary to the statutes and to the constitutions and canons ecclesiastical of the realm, and against the peace and unity of the Church, to be administered to him by virtue of our office, at the voluntary promotion of the said Ralph Sanders. And further to do and receive as unto law and justice shall appertain under pain of the law and contempt thereof, at the promotion of the said Ralph Sanders. And what you shall do or cause to be done in the premises you shall duly certify us, our surrogate, or some other competent judge in this behalf, together with these presents Dated at London, the eleventh day of November, in the year of our Lord one thousand eight hundred and forty-one. 3 CURt 36 SANDERS V. HEAD 647 The act on protest on behalf of Mr. Head denied the jurisdiction of the Court, and alleged thai by the 23rd section of the stat. 3 & 4 Viet. c. 86, it is enacted " that no criminal suit or proceeding [36] against a clerk in holy orders of the United Churoh of England and Ireland, for any offence against the laws ecclesiastical, shall be instituted in any Ecclesiastical Court, otherwise than is hereinbefore enacted or provided." That the said...
To continue reading
Request your trial