The Queen against The Bishop of Chichester
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1859 |
| Date | 02 June 1859 |
| Court | High Court |
English Reports Citation: 121 E.R. 80
IN THE COURT OF QUEEN'S BENCH, AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 29 L. J. Q. B. 23; 6 Jur. N. S. 120; 7 W. R. 629. Approved. In re Newport Bridge, 1859, 29 L. J. Q. M. C. 53. Referred to Martin v. Macknochise, 1868, L. R. 2 Ad. & E. 123. Distinguished, Sheppard v Bennett. 1869, L. R. 2 Ad. & E. 343; L. R. 2 P. C. 460. Appllied Ellishinstone v. Purchas, 1870, L. R. 3 P. C. 255. Commented on and explained, Julius v Bishop of Oxford. 1880. 5 App. Cas. 238. Dincussed, R. v Bishop of London, 1889, 23 Q. B. D. 441; Q. B. D. 235. See B. v Archbishop of Conterbury.
80 THE QUEEN V. THE BISHOP OF CHICBESTER 2 EL. & EL.! [209] the queen against the bishop of chichester. Saturday, July 2d, 1859. G., a clerk in holy orders, residing in the city and diocese of 0., applied to the Bishop of C. to issue a commission, under stat. 3 & 4 Viet, c, 86, g. 3, against R., rector of the parish of W., in the diocese of C., to inquire into certain charges made by G. against R. of offences against the laws ecclesiastical. G. had no connection with the parish of \V. or diocese of C., nor had he any private or personal interest in the said charges. The Bishop declined, after inquiry, to issue a commission.-Upon the shewing cause against a rule for a mandamus to the Bishop, commanding him to issue a commission:-Held, by Lord Campbell C.J., Wightman and Erie Js. (dubitante Hill J.), that, under the statute, the Bishop had a discretion as to issuing a commission or not.-Held further, by all the Court, that, as it was in the discretion of the Court to grant a mandamus or not, the mandamus ought not to issue upon the application of one who was a stranger to the parish and diocese, and had no personal interest in the investigation of the charges. [S. C. 29 L. J. Q. B. 23; 6 Jur. N. S. 120; 7 W. R. 629. Approved, In re Newport Bridge, 1859, 29 L. J. M. C. 53. Referred to, Martin v. Mackonochie, 1868, L. R. 2 Ad. & E. 123. Distinguished, Sheppard v. Bennett, 1869, L. R. 2 Ad. & E. 343; L. R. 2 P. C. 460. Applied, Elphinstone v. Purchas, 1870, L. R. 3 P. C. 255. Commented on and explained, Julius v. Bishop of Oxford, 1880, 5 App. Cas. 238. Discussed, R. v. Bishop of London, 1889, 23 Q. B. D. 441 ; 24 Q. B. D. 235. See R. v. Archbishop of Canterbury, [1902] 2 K. B. 523.] Bovill, in last Trinity Term, obtained a rule on behalf of the Rev. Charles Portales Golightly, calling upon the Bishop of Ghichester to shew cause why a mandamus should not issue commanding him to issue a commission, pursuant to stat. 3 & 4 Viet, c. 86, for the purpose of making inquiry as to the grounds of certain charges and reports against the Rev. Richard William Randall, in certain affidavits mentioned, and to take such proceedings with reference to the said commission and the said charges and reports as are required by the said statute. From the affidavits in support of, and on shewing cause against, the rule, it appeared that the applicant for the rule, Mr. Golightly, who was a clerk in holy orders, resided at 6, Holywell Street, in the city and diocese of Oxford. On 3d February, 1859, Mr. Golightly wrote to the Bishop of Chichester, requesting that a commission might issue, under stat. 3 & 4 Viet. c. 86, to examine into certain charges made by Mr. Golightly against the Rev. R. W. Randall, the rector of the united parishes of Woollavington cum Graffham, in the county of Sussex and diocese of Chicheiter. The charges were: "The [210] using by" Mr. Randall, "iu his church, a hymn translated from one in the Roman Breviary, by Thomas Aquinas, teaching the doctrine of transubstantiation. Directing his schoolmaster to teach, and himself teaching, the children in his school that there are seven sacraments; and that the Holy Communion may properly be called The Mass. That, in the administration of the Holy Communion, he elevated the cup, and mixed water with the wine. That he crossed himself after the Romish fashion during the celebration of divine service. That he made the sign of the cross upon the water at baptism." Most of these charges had been preferred against Mr. Randall, in 1858, by the then curate of the parish, and the Bishop then obtained a promise from Mr. Randall to discontinue the use of the hymnal, the using the sign of the cross, and the other practices already mentioned, at the celebration of the Holy Communion and at baptism. The Bishop stated this fact in his written answer to Mr. Golightly's application, and, by the same letter, declined to issue a commission, being, as he stated in his affidavit, " convinced that such a step would have no effect except to cause a scandal in the Church, whilst, at the same time, it would be, in his opinion, unjust towards Mr. Randall and detrimental to the best interests of the parish." R. J. Philliraore, J. D. Coleridge and Wintle shewed cause (a). Stat. 3 & 4 Viet. c. 86, s. 3, enacts "That in every case of any clerk in holy orders of the United (a) Tuesday and Wednesday, June 14th and 15th. Before L|0rd Campbell C.J.. "\Vightman, Erie and Hill Js. 2 EL. ft EL. ail, THE QUEEN V. THE BISHOP OF CHICHESTBR 81 Church of England and Ireland who may be charged with any offence against the laws ecclesiastioal, or concerning whom there may exist scandal or evil report aa [211] having offended against the said lawa, 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 bis 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: Provided always, that notice of the intention to issue such commission under the hand of the Bishop, containing an intimation of the nature of the offence, together with the names, addition, and residence of the party on whose application or motion such commission shall be about to issue, shall be sent by the bishop to the party accused fourteen days at least before such commission shall issue." The other side must contend that it is competent to any pergon whatever, perhaps a person not even a subject, residing in any part of the kingdom, whatever his position and moral character, by charging a clerk in holy orders with an ecclesiastical offence, to compel the Bishop to issue a commission. Now, in the first place, the Biahop, under sect. 3, has in all cases a discretion whether he will issue a commission or not. In the second place, Mr. Golightly is not a proper party to apply for the issuing of a commission in this particular case : and therefore this Court, even if it should hold that the Bishop has no discretion where the application is made by a party having a locus standi, may and will refuse to issue a mandamus in the present case. As to the first point: the words in sect. 3 are, "it shall be lawful" for the Bishop to issue a commission "on the application of any party complaining;" "or if he shall think fit of his own mere motion." The words [212] " it shall be lawful " may or may not implya discretion. They are used in other parts of the Act, in sects. 4, 6, 9, 13, for instance; in some of which they must be considered as leaving no discretion,'and in others of which they undoubtedly give it. The other side will probably rely on MacDougallv. Pai&rson (11 Com. B, 755) (in which the Court of Common Pleas dissented from the judgment of the Court of Exchequer in Jones v. Harrison (6 Exch. 328)), and on Crake v. Powell (2 E. & B. 210), as authorities tending to shew that the words in question make it imperative on the Biahop to issue a commission whenever the circumstances exist which, by the section, give him the power to issue it. But every statute must be construed independently of...
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