The Visitation of the Archbishop of York of the Dean and Chapter of York
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1841 |
| Date | 01 January 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1
IN THE QUEEN'S BENCH
S. C. 2 G. & D. 202. Referred to, Boyd v. Phillpotts, 1874-75, L. R. 4 A. & E. 324; L. R. 6 P. C. 450; R. v. Bishop of Oxford, 1879-80, 4 Q. B. D. 264; 5 App. Cas. 214; Read v. Bishop of Lincoln, 1889, 14 P. D. 126.
QUEEN'S BENCH REPORTS. By JOHN LEY-CESTER ADOLPHUS, of the Inner Temple, Esq., and THOMAS FLOWER ELLIS, of the Middle Temple, Esq., Barristers at Law. New Series. Vol. II. Containing the CASES DETERMINED in Trinity Vacation, Michaelmas Term and Vacation, and Hilary Term and Vacation. IV. and V, VICTORIA. [1] cases argued and determined in the queen's bench, in trinity vacation, IV. victoria. The Court sat in Bane from June 14th to June 19th. The Judges usually present were Lord Denman C.J., Patteson J., Williams J., Coleridge J. in the matter of the visitation of the archbishop of york of the dean and chapter of york. 1841. The Archbishop of York, after the passing of stat. 3 & 4 Viet. e. 86, cited the dean and chapter of York (enjoining them to cite the canons, registrar, and officers whose presence might be required) to appear at a visitation of the dean and chapter, canonically to receive and submit to the archbishop's intended " metropolitical visitation, examinations, due corrections," &c., to exhibit their statutes, &c. if required, pay the due procurations, and further to do and receive what the business and nature of such a visitation require. He also appointed a commissary for holding the visitation in his absence^ for correcting and punishing by ecclesiastical censures whoever should be contumacious, for administering articles in writing to the dean and chapter, and receiving their presentments and answers, and for adjourning and proroguing such visitation from time to time and place, and completing and dissolving the same, and for doing every thing else appertaining to the nature and quality of the said visitation. The visitation was hold en, and articles of inquiry delivered to the dean and chapter, touching the administration of their funds, performance of divine service, &o. A canon, in reply to an article as to the repair of chancels, sent in a statement imputing simony to the dean, which was afterwards communicated to the dean by a private letter from the commissary. At an adjourned meeting, of which the dean had notice, but which he (unavoidably as he said) did not attend, the canon delivered a fuller statement of the charge from a paper, which was afterwards deposited with the actuary. The commissary appointed a day for hearing evidence ; and the dean was requested, by letter, written at the archbishop's desire by hia secretary, to attend and meet the accusation. No formal articles or libel were ever exhibited ; nor was the dean ever cited to answer any charge. On the appointed day the dean attended, but disclaimed the jurisdiction, obstructed the proceedings, was pronounced in contempt, withdrew contumaciously, and did not appear again. The K. B. xliii.- 1 2 IN THE MATTER OF THE DEAN OF YORK Q. B.2. commissary decreed to proceed in poenam in his absence, and heard counsel and evidence on the charge, but refused to hear counsel for the dean till he should purge his contempt, which was not done; and the commissary gave judgment, declaring the charge proved, and that sentence of deprivation must be passed, The archbishop then passed sentence, by which he recited the above proceedings, and adjudged that the dean had committed and was convicted of simony, and was in contempt, deprived him of the dignity and place of dean, &c., and monished him not in future to use the dress or ensigns of a dean, on pain of the greater excommunication. The visitation was then adjourned. On motion for a prohibition to the archbishop and commissary against proceeding further in the matter of the said charge of simony, or executing or giving effect to the sentence: Held, 1. That the inquiry before the commissary was not a mere incident to the visitation, but became a distinct criminal proceeding when the commissary entered upon the examination of proofs, as above stated, with a view to punishment. 2. That such inquiry was a "criminal proceeding" within stat. 3 & 4 Viet. c. 86, a. 23, those words not being restrained by the recital of sect* 1, which mentions only " proceeding in causes for the correction of clerks." 3. That an archbishop or bishop, exercising his general authority as visitor of an ecclesiastical body (and not visiting under the statutes of a particular foundation), acts, not personally, but as Judge in a Court, and must follow established forms of process and inquiry ; at least in hearing accusations with a view to punishment. And, therefore, 4. That the proceeding in question was not within the reservation in stat. 3 & 4 Viet. c. 86, s. 25, of any authority which the archbishops or bishops may exercise personally, and without process in Court. Consequently, 5. That the proceeding could not legally be instituted otherwise than as stat. 3 & 4 Viet. c. 86, directs. 6. That a prohibition could not properly have been moved for before the visitor proceeded to sentence; but that it might well be applied for afterwards, as the sentence had a continuing operation; and as the Court did not appear to have been dissolved at the time of the motion. Prohibition granted, without calling upon the applicant to declare. [S. C. 2 G. & D. 202. Referred to, Boyd v. PWlpotts, 1874-75, L. R. 4 A. & E. 324; L. R. 6 P. C. 450; E. v. Bishop of Oxford, 1879-80, 4 Q. B. D. 264; 5 App. Cas. 214; Read v. Bishop of Lincoln, 1889, 14 P. D. 126.] Sir W. W. Follett, in Easter term last, obtained a rule calling upon the Most Reverend Edward Lord Archbishop of York, on notice of the [2] rule to him or his secretary, and Joseph Phillimore, Doctor of Laws (as commissary of the said lord archbishop at a visitation of the dean and chapter of the cathedral church of York, held by and before the said lord archbishop and the said Joseph Phillimore as such commissary as aforesaid), on notice of the rule to be given to him, to shew cause why a writ of prohibition should not issue to prohibit the said lord archbishop, and the said Joseph Phillimore as his commissary, from proceeding further in the matter of certain charges of simony and simoniacal practices against William Cockburn, Clerk, D.D., or for carrying [3] into execution or otherwise giving effect to the sentence of deprivation pronounced by the said lord archbishop against the said William Cockburn. The following outline of the case, in the words used by the Lord Chief Justice of this Court in delivering judgment, with some particulars added in the notes, will afford all the information necessary as to the facts. The proceedings in this case may be very shortly stated. His Grace the Archbishop of York, as Ordinary, cited (a) the dean and chapter of York to attend his visitation, and appointed a learned civilian, Dr. Phillimore, his commissary general (b), "far correcting and punishing, by ecclesiastical censures, whosoever ahall be contumacious, and for administering articles in writing to the said dean and chapter, and receiving their presentments and answers;" and " for doing every thing else appertaining to the nature and quality of our said visitation." The ancient formula of the commission ran in the following etyle: " Ad errata enormia corrigendum et (a) January 8th, 1841. See p. 41, note (A), post. (b) See p. 42, note (B), post. SQ.B. t, IN THE MATTER OF THE DEAN OP YORK 3 extirpaudum, et virtutes et alia ad pietatem conducantia plantandum, et ad Dei laudem instituendum et seminandum." There seems no reason to doubt that here was sufficient authority to inquire into the ecclesiastical offences of every spiritual person belonging to the body visited. But at first the proceeding (e) was confined to the fiscal concerns of the chapter, relating principally to the application of a fabric fund (d). [4] The dean attended, and, being examined respecting some share of this money^ which he was said to have received, conducted himself during that proceeding in a manner that was deemed contumacious : and sentence of contempt was by the commissary pronounced against him. He then absented himself (a). The proceedings went forward ; and, in answer to an interrogatory respecting the actual state of repair of several churches and chancels, the reverend Mr. Dixon, one of the canons, made a statement (b) which was cou-[5]-sidered as a direct charge of (c) The visitation was opened by the archbishop personally at the chapter house : the subsequent proceedings (except sentence) were carried on in a place called the Ecclesiastical Court, within the cathedral. (d) The archbishop, on opening the business of the visitation (January 18, 1841), delivered twenty articles of inquiry to the dean and chapter, relating to 1. Performance of divine service. 2. Eepairs of the church since the fire, and funds for that purpose. 3. Sale of bells and materials, and application of proceeds. 4. Lands, &c., belonging to the fabric of the church, and rents thereof. 5. Leases of such lands, and application of fines; and account kept of rents, &c., belonging to the fabric. 6. Improvements of minster yard, and agreements entered into on behalf of the fabric. 7. Capitular acts. Common seal. Audits. 8. Negotiations for renewals, agreements for leases, purchases, &c., whether or not settled in chapter. 9. Orders for work, &c. Authority for liquidation of bills. Accounts, &c. 10. Receipt of and discharges for fines and rents of the common estates and fabric estates. 11. Holding of chapters. 12. Claim of exclusive or paramount authority by dean or residentiaries. 13. Custody of, and access to, the library of the church. 14. Keeping of records and muniments. 15. Residence of the residentiaries. 16. Canonical houses. Places of residence of the dean and canons...
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