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United Kingdom House of Lords Decisions
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Cite as:  5 App Cases 214,  UKHL 1
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 5 App. Cases 214
House of Lords
Date: Tuesday 23rd march 1880
|Lord Bishop of Oxford and another||Respondents|
My Lords, in this case Dr. Frederick Guilder Julius, of Clewer, in the county of Berks, preferred a complaint to the Bishop of Oxford against the Rev. Thomas Thellusson Carter, rector of the parish, in respect of unauthorized deviations from the ritual of the Church in the Communion Service, and the use of unauthorized vestments, and required the Bishop to issue a commission under the Church Discipline Act third and 4th Victoria chapter 86, to inquire into this charge. This commission the Bishop, in the exercise of his discretion, declined to issue. The Court of Queen's Bench, on the application of Dr. Julius, directed a writ of mandamus to issue commanding the Bishop either to issue the commission which Dr. Julius, had applied for, or to send the case by letters of request to the Court of Appeal of the province under the Statute.
The question is, was the Court of Queen's Bench right in awarding this mandamus? The Court of Appeal has reversed the decision of the Court of Queen's Bench. The Court of Queen's Bench in awarding the mandamus, and the Court of Appeal in reversing this decision, were both unanimous, and it is for your Lordships now to decide between them.
The case appears to me to turn upon the use of the words "it shall be lawful" in the third section of the Church Discipline Act. I cannot think that the practice of the Ecclesiastical Courts, before the Act, need be the subject of much examination. The Act states in the preamble that "the manner of proceeding in cases for the correction of clerks requires amendment." Whether, therefore, the office of the judge could, before the Act, be promoted by any person as of right, or whether a discretion could be exercised by the Judge as to allowing himself to be put in motion, or as to the terms on which he could be put in motion, is not, as it seems to me, of much importance, inasmuch as the practice in this respect may have been just one of the matters which the Act was intended to amend.
The third section of the Act enacts, - omitting words which for the present purpose are immaterial, - that in every case of any clerk who may be charged with any offence against the Laws Ecclesiastical it shall be lawful for the Bishop of the diocese within which the offence is alleged to have been committed, on the application of any party complaining thereof, to issue a commission for the purpose of making inquiry as to the grounds of such charge. And the question is, under the words "it shall be lawful" is the Bishop bound, on the application of any party, to issue a commission, or has he a discretion as to whether he will issue it or not?
The question has been argued and has been spoken of by some of the learned Judges in the Courts below as if the words "it shall be lawful" might have a different meaning, and might be differently interpreted in different Statutes, or in different parts of the same Statute. I cannot think that this is correct. The words "it shall be lawful" are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words "it shall be lawful" being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation.
I think that if these principles are kept in mind it will be found that all the cases on this subject are easily understood and reconciled, and I will refer shortly to the most important of those which were mentioned to your Lordships before examining farther the circumstances connected with the present case.
The earliest case which is generally referred to is that of Alderman Backwell (1 Vernon 152) before Lord Keeper North. The creditors of Alderman Backwell petitioned for a Commission of Bankruptcy against him, and they would have been obviously exposed to prejudice and hazard, if it had not been granted. The words of the Statute were that the Chancellor "may grant a commission," and the Lord Keeper held that he was bound to exercise the power which was in effect reposed in him for the benefit of those who asked for its exercise.
The next case is the King v. Barlow (2 Salkeld 609). That was not a mandamus but an indictment on the 14th Charles the Second, chapter 12, against the churchwardens for not making a rate to reimburse the constables. The Statute appears to have used the words "may make a rate," but it was naturally held that the constables were entitled to be reimbursed, and that the churchwardens, being made the depositaries of a power for that purpose, could not refuse to exercise it.
The King v. Bower (5 Barnewall and Alderson 691) was the case of a mandamus in reference to a power granted by Royal Charter to the steward and suitors of a manor giving them authority to hear and determine civil suits. It was held that this was in effect the establishment of a Court for the public benefit, and that the stewards and suitors of the manor were bound to hold the Court.
In Macdougall v. Paterson (11 Common Bench 755) the question was whether the Plaintiff in a County Court action who had recovered his debt should not have his costs taxed and allowed in a particular way. The Statute had provided there, that under the circumstances in which the Plaintiff stood, the Court might by rule or order direct that he might recover his costs; and Chief Justice Jervis, delivering the opinion of the Court, stated that the conclusion to be drawn from the cases was that when a Statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority, when the case arises, and its exercise is duly applied for by a party interested, and having the right (that is having by Statute the right) to make the application.
The case of Morisse v. Royal British Bank (1 Common Bench, New Series 67) was a case of the same kind, and decided that under the words "it shall be lawful for the Court," a creditor who had obtained judgment against a joint stock banking company, and had failed to recover his debt against the company, was entitled as of right to execution against a shareholder, on complying with the conditions imposed by the Statute.
My Lords, the only other case that I will refer to is one which was decided in the Court of Queen's Bench in 1849, The Queen v. the Tithe Commissioners (14 Queens Bench Reports 459). A power was there given to the Tithe Commissioners in dealing with certain landowners, to confirm agreements for commutation of tithe under certain special circumstances and conditions, which I need not refer to at length. The Court held, upon the construction of the whole Statute, that if a case occurred, coming within the terms of the Statute, the Commissioners were bound to confirm the agreements there mentioned. In delivering the opinion of the Court, Sir John Coleridge uses these words:
"The words undoubtedly are only empowering, but it has been so often decided as to have become an axiom, that in Public Statutes words only directory, permissory, or enabling, may have a compulsory force where the thing to be done in for the public benefit or in advancement of public justice."
To the rule thus guardedly expressed there is not, perhaps, much to object, and I only refer to the words for the purpose of pointing out that I am unable to see that they justify the expressions of the Lord Chief Justice of the Queen's Bench in the present case, who speaks of them thus (4 Queens Bench Reports D. at p. 272):
"Now finding nothing in the enactments or language of the third section or other parts of the Church Discipline Act, which should have the effect of controlling or qualifying the words 'it shall be lawful,' but, on the contrary, finding the language of the section pointing, as it seems to us, the contrary way, we can see no ground which would justify us in giving to those words any other than the meaning which the established canon of construction has assigned to them, a canon of construction so thoroughly settled, that Mr. Justice Coleridge speaks of it as an axiom, and by which, in construing this Statute we feel ourselves absolutely bound."The only axiom Mr. Justice Coleridge spoke of was, that, under certain circumstances, enabling words might have a compulsory force.
My Lords, the cases to which I have referred appear to decide nothing more than this: that where a power is deposited with a Public Officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.
I now turn to the Church Discipline Act, for the purpose of considering whether it is possible to suppose that an absolute and unconditional right was given by it to put in motion the Bishop of the diocese, irrespective of any judgment or discretion of his own.
The third section provides that in every case of any clerk in holy orders who may be charged with any offence against the laws Ecclesiasitical 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 certain persons, for the purpose of making inquiry as to the grounds of such charge or report.
The first observation which occurs upon this section is, that the words "any party" are words of the most general kind, and must, as was admitted in the argument of the Appellant, extend to any natural born subject of the Queen. The Appellant, who, in the case before your Lordships, invokes the action of the Bishop, is a parishioner of the parish of Clewer, and a member of the Church of England; but if he is right in his construction of the Statute, the aid of the Bishop might be invoked equally by one who never had entered the parish, who never had been in England, who was ignorant, perhaps, of the language, who was not a member of the Church of England, who was not, possibly, a believer in Christianity. If, under the Statute, any person has an absolute right to put the Bishop in motion, a person may do so who is a pauper, or wholly unable to answer the costs of the suit. No authority is given to the Bishop to require security for costs, and the clerk may be ruined by a litigation from which he emerges as the victor.
Again, the offence charged may be an offence against the Laws Ecclesiastical, but it may be of so trifling and insignificant a nature that no one, having any discretion in the matter, ought to allow it to be the subject of litigation. Or the charge or the report may be one which, within the knowledge of the Bishop, is unfounded. Or, again, the clerk may have been chargeable with a departure from authorized ritual, and on the remonstrance of the Bishop may have admitted his fault and have promised to discontinue the wrong practice, and may have faithfully kept such promise, and yet, an offence having once been actually committed, the Bishop, if the argument of the Appellant be right, may be called upon to proceed against the clerk, with whose conduct in the matter he has every reason to be satisfied.
The illustrations of the effect of the Appellant's argument which I have suggested (and many more might be added) appear to have been felt by the Queen's Bench to press against the argument. In some of the cases which I have suggested the difficulty is met by the Court of Queen's Bench, by saying that if the Bishop refused to act the Court might, in its discretion, refuse to grant a mandamus to make him act. But this is only saying that the Court will take upon itself to exercise a discretion which it refused to allow to the Bishop.
It is farther to be observed on this part of the case that the Bishop of the diocese cannot, in my opinion, be looked upon merely as a ministerial officer through whose hands process is to pass as a matter of form. He is charged with the oversight of his diocese, and with a vigilant attention to its discipline; and if discretion as to proceedings, in respect of the discipline of clerks, is to be reposed anywhere, it is in the Bishop that you would expect to find it. But, in truth, a most conspicuous instance of the reposing of this discretion in the Bishop is found in another part of this Statute. The third section allows the Bishop of a diocese in which an act of immorality has been committed by a clerk, having preferment in another diocese, to issue a commission to inquire into the grounds for a formal charge. I will suppose that the Bishop of diocese A. issues such a commission of his own authority against X., a beneficed Clergyman of diocese B. The commissioners report that there are primâ facie grounds for proceeding against the party accused. The Bishop of diocese A. is thereupon, under section five, to transmit a copy of this report and of the depositions to the Bishop of diocese B.; thereupon, under section seven, the Bishop of diocese B. may proceed in due form of Ecclesiastical law against X up to punishment; but it is quite clear, under the seventh section, that it is discretionary with the Bishop of diocese B. whether he will do this or whether he will allow the whole proceedings, even after the commissioners have found that there is a primâ facie case, to drop.
My Lords, if the Statute had singled out particular individuals who might naturally be supposed to have a personal interest - the churchwardens, for example, or even certain communicants or parishioners, - and had laid down conditions as to costs, or otherwise, which they were to comply with before calling on the Bishop to take proceedings, there might have been a ground for contending, on the authorities I have referred to, that the power of the Bishop was one which under those circumstances he could not refuse to exercise. This, however, is not the frame or character of the enactment; and, indeed, having regard to the various matters to which the Act applies and the various dioceses in which it might have to be put in force, it is difficult to see how the enactments could have taken that shape.
I ought to mention an argument which was much dwelt upon before your Lordships and in the Courts below, viz., the argument that the words "if he shall think fit," in the third section, in the alternative power to the Bishop to proceed of his own mere motion, rather imply that on the application of a third party he is to proceed whether he thinks fit or not. My Lords, I do not think that the words "if he shall think fit" have any such effect. They appear to me to be, where they occur, mere surplusage, as, indeed, is proved by the circumstance that if they were altogether omitted that clause of the section would mean just exactly what it means with those words inserted. But the words in fact appear to me to be introduced merely to mark more clearly that an alternative power is conferred upon the Bishop, and that he is left free to proceed without any one to put him in motion, if he chooses to do so.
My Lords, I am satisfied upon these short grounds, and without going into many of the topics which were so elaborately considered in the Courts below, that the Judgment under appeal is correct and ought to be affirmed. I will only add that if I am right in holding that the Bishop has, under the Statute, a discretion as to proceeding or not proceeding, in the way in which the Appellant calls upon him to do, your Lordships have not, as it seems to me, my occasion or indeed any right to examine into the manner in which, or the principles upon which, that discretion has been exercised. For the exercise of that discretion the Bishop, and the Bishop alone, is responsible, and it would, in my opinion, be inconsistent to hold that his discretion is an answer to the application for a mandamus, and at the same time, on that application, to criticise the grounds upon which that discretion has been exercised.
I have only to move that the appeal should be dismissed in the usual way.
My Lords, the considerations upon which the decision of this case should be based are, in my judgment, much more limited than those which have been advanced in argument.
The state of the law before the Church Discipline Act passed, though not perhaps wholly immaterial, can go for very little in the interpretation of that Act, when it is borne in mind that the preamble declares that "the manner of proceeding in causes for the correction of clerks requires amendment." In the face of such a preamble, it would be difficult to contend that any particular change in the "manner of proceeding" could not have been intended, and the change actually made whereby the Bishop is substituted for the Judge, renders the practice which existed at the time when the whole proceeding was in the hands of the Judge, a matter of very slender and remote consideration.
If it were otherwise, I should not hesitate to say that, in my opinion, the Judge always had a right and power to refuse to permit his office to be promoted if he thought fit; and that the statements of the law on this subject by Lord Stowell and Sir George Nicoll, far outweigh the language attributed to Dr. Lushington in the single case of Ditcher v. Denison. Nor do I think the question raised in the present proceeding has been, in any binding sense, concluded by previous authority. There are numerous dicta on the interpretation of the clause in the Church Discipline Act which is now in controversy; but there has been one decision, and one only, which proceeded upon the proper effect to be given to that clause. I allude to the Bishop of Chichester's Case, in which Mr. Justice Wightman, with, I think, probably the approval of Lord Campbell, decided the case, and acted upon the principle which the Court of Appeal in the present case has affirmed.
The contention of the Appellants, therefore, is one which I think may and ought to be considered by your Lordships on its merits; and I proceed to consider what those merits are.
In the outset I entirely agree with what has fallen from the Lord Chancellor as to the proper and legitimate way of stating the question here involved. The words "it shall be lawful" are distinctly words of permission only - they are enabling and empowering words. They confer a legislative right and power on the individual named to do a particular thing, and the true question is not whether they mean something different, but whether, regard being had to the person so enabled - to the subject-matter, to the general objects of the Statute, and to the person or class of persons for whose benefit the power may be intended to have been conferred, - they do, or do not, create a duty in the person on whom it is conferred, to exercise it.
This in my judgment is the true question; and I confess that I hardly think that it receives a satisfactory solution from the somewhat loose definition attributed to Mr. Justice Coleridge in the case of The Queen v. The Tithe Commissioners which has been referred to as a binding statement of the law upon this subject. It is surely not enough that the thing empowered to be done should be for the public benefit, in order to make it imperative to exercise that power on all occasions falling within the Statute. It may be assumed that all powers conferred by Statute on individuals in general Public Acts, are for the public benefit, or they would not have been conferred. But had the words been more precise, they would hardly justify the use that has been made of them; for what Mr. Justice Coleridge said was, not that permissory or enabling words are to be held to "have a compulsory force where the thing to be done is for the public benefit," etc but only that such words "may," in some cases, have that effect. If the matter were to be decided by previous definitions, I should prefer that of the Lord Chief Justice Jervis, who said, in the case of The Queen v. York and North Midland Railway that such words as "it shall be lawful" were to be understood as permissive only, unless some "absurdity or injustice" would follow from giving them that, their natural meaning. Neither, however, of these definitions goes so far as that which is to be found in the judgment of the Lord Chief Justice in the present case. He said, "It is an established canon of construction that in Statutes of a certain class such words as 'it shall be lawful' have acquired a settled meaning, unless controlled by the context of the particular enactment, or by the sense in which they are used in other parts of the Statute, or by what, on the purview of the Statute, is its apparent purpose." That is to say, these words, in a certain class of Statutes, import primâ facie not permission, but obligation; and must be so construed unless the conclusion that they were so intended can be displaced. No specific authority is cited for this proposition, nor have I been able to find any.
Passing, therefore, from definitions which are apt not to be uniform, and which are with difficulty so framed as to be applicable to all cases, I think it far more satisfactory that your Lordships should look at what the Courts in previous cases have done rather than what the learned Judges may have said, and I invite your Lordships' attention to the cases cited in argument, where the Courts have actually held that the power conferred, though by permissive words only, was one which the individual was bound to exercise, and to compare those cases with the case now under consideration.
In Backwell's Case the power conferred was that of issuing a Commission of Bankrupt, and it was conferred on the Lord Chancellor. In Rex v. Barlow power was conferred on certain persons to raise a rate to reimburse a constable for expenses lawfully incurred. In Rex v. Steward of Havering Bower power was conferred to hold a Court for recovery of debts in a manor; the power had been exercised, but had for fifty years been disused, the exercise of it by holding the Court was enforced by mandamus, on the application of one entitled to sue in it. In Macdougall v. Paterson and Crake v. Powell the Superior Courts were empowered to direct that a person entitled to costs should recover them. In the case of the Queen v. Tithe Commissioners in which the expressions above quoted of Mr. Justice Coleridge are to be found, power was conferred on the Tithe Commissioners to confirm agreements with respect to tithes not legally binding, when it appeared to them that such agreements gave a fair equivalent for the tithe. In Morisse v. The British Bank power was conferred upon the Courts to grant execution against a shareholder creditor who had obtained judgment against the company and issued execution against it without effect.
In all these instances the Courts decided that the power conferred was one which was intended by the Legislature to be exercised; and that although the Statute in terms had only conferred a power, the circumstances were such as to create a duty. In other words, the conclusion arrived at by the Courts in these cases was this - that regard being had to the subject-matter - to the position and character of the person empowered - to the general objects of the Statute, - and, above all, to the position and rights of the person, or class of persons, for whose benefit the power was conferred, the exercise of any discretion by the person empowered could not have been intended. Thus the right of a creditor to have his debtor made a bankrupt, though the person empowered to issue the commission was the Lord Chancellor, and therefore a person in whom a discretion (if the subject had admitted of one) might well have been reposed, was held to be one that justice required should be exercised without discretion. The right of the constable to be re-imbursed his expenses stood on the same footing. The same may be said of the right of the suitor to have his case heard in the Manor Court. When once it was plain that a Plaintiff had a right to his costs, it could not be intended that the Legislature had conferred a discretion on the Courts whether they would enable him to get them or not; and the same reason applies to a creditor's remedy against the member of a company which was indebted to him. If the idea of a discretion had not been excluded in these cases by the requirements of justice, and other general considerations, the Courts could not have held that to be compulsory which the Legislature had described, in terms, enabling and permissive only.
The question then arises whether in the present case there are any considerations sufficiently cogent to exclude the idea that the Legislature intended a discretion. If we look at the subject-matter to which the enactment in question relates, we find that it involves nothing less than the entire discipline of the Clergy, and the enforcement of all Ecclesiastical punishments and penalties. Did the Legislature intend then that Ecclesiastical offences should be a matter for wholesale and indiscriminate prosecution, without regard to their nature, the circumstances under which they may have been committed, the conduct by which they may have been atoned, or the guaranties that may exist that they will not be repeated? It must be borne in mind that the offences that we are considering are not necessarily offences against the criminal laws, or even the laws of morality understood in their widest sense. They may, some at least of them, be committed innocently from inattention, or carelessness, or a wrongful conception of obligation, such for instance as one trifling and perhaps inadvertent departure from the authorized Ritual of the Church.
I cannot see my way to a conclusion that the Legislature plainly intended that all these offences should be made the subject of prosecution without discretion or limit. Still less can I perceive with any certainty, that the public benefit - the rights or benefit of individuals, or the requirements of justice - to say nothing of the due and efficient discipline of the Clergy, and the best interests of the church, require the indiscriminate prosecution of everything in the conduct of every Clergyman which may legally constitute an Ecclesiastical offence. So far, then, from the nature of the subject excluding the intention of conferring a discretion, it is one in my opinion in which a discretion is loudly called for, and would naturally be expected. The language of the clause itself, both in the provisions it contains, and still more in what it omits, points in the same direction. I cannot do better here than quote Lord Justice Bramwell. "There is no provision," he says "regulating who is to be the complainant; it may be any one, man, woman, or child, churchman, or other, for aught I can see. There is no provision how the complaint is to be made, by writing, or verbally, no provision how, if it all, it is to be verified; no provision that the complainant shall undertake to prosecute, or shall be liable to costs, no provision as to the character or nature of the offence; how far its prosecution may be desirable in the interests of religion, or morality; not a word as to its being possibly an isolated offence, and unintentional, and atoned for; nothing as to the motives or object of the complaint." I agree with the Lord Justice that the absence of all provision and limitation on these heads points strongly to the probable intention that a discretion should be vested in some one as to the cases in which a Commission should issue; and that such a discretion should be reposed in the Bishop, whose office it is to guide, correct, and control the Clergy is exactly what might have been expected in an Act for the regulation of Church discipline. He is the person who, above all others, has the means and opportunity of knowing the character and conduct of an offending Clergyman, the condition and circumstances of his parish, and the probable motives of those who charge the offence, - and, above all, whose position may enable him to interpose admonition, and advice, which may render recourse to the law unnecessary.
But (still comparing the present case with the authorities above cited) the strongest point of contrast remains to be stated. For, in place of a duty being inferred and enforced, as in those cases, in order to do justice to the legal rights of an individual, if a duty be inferred at all from the provisions of this Statute, its exercise may be called for at the instance of a complainant who has not only no legal right, but perhaps no interest, immediate or remote, in the exercise of the Bishop's power; inasmuch as the Statute makes it possible for any man to be a complainant, no matter where resident, and no matter whether Churchman, Nonconformist, or Roman Catholic, Christian, Jew, or Mohammedan. I cannot think that the intention of this Statute was to maintain the discipline of the Clergy by vesting the power of legal prosecution, without limit, in the community at large.
The conclusion, then, at which I arrive is, that the Appellant has not established his case. The words "it shall be lawful" are permissive and enabling only. It devolved upon him to shew that the Legislature intended the exercise of the power, thus conferred, to be a duty, in the performance of which the Bishop was not intended to have any discretion, and he has, in my opinion, failed to shew it.
With regard to the particular circumstances of the present case, I forbear to make any remark. Being of opinion that the permissive words of the Statute ought not to be held to have created a duty in the Bishop to issue a commission without any discretion in the matter, I forbear to inquire whether that discretion has been well exercised. It may be that it has not; and I am not insensible to the weight of the argument that, if Bishops have a discretion in such matters, it is a discretion without appeal and free from legal control. It may, therefore, be abused; but so may a discretion in whomsoever vested; and, in the possibility of abuse, I see no reason to believe it unlikely that the Legislature intended to confide the discipline of the Clergy to the good sense and good faith of the Bishops, upon whom, in the earlier history of the Church, the task of correction exclusively devolved.
My Lords, the use of inexact language in the statement of reasons for judicial decisions, (though nothing may turn upon it in particular cases determined upon sound principles,) is sometimes liable to become a starting point in other cases towards erroneous conclusions. This appears to me to have happened in the Court of first instance in the present case. The language, (certainly found in authorities entitled to very high respect,) which speaks of the words "it shall be lawful,"; and the like, when used in Public Statutes, as ambiguous, and susceptible (according to certain rules of construction) of a discretionary or an obligatory sense, is in my opinion inaccurate. I agree with my noble and learned friends who have preceded me, that the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a Public Officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.
The present question is, whether it can be shewn, from any particular words or provisions of the Church Discipline Act, or from the general scope and objects of that Statute, that it is the duty of a Bishop, whenever a complaint is made to him under the third section, to issue a commission of inquiry, with a view to penal proceedings if a primâ facie case should be made out? The words "it shall be lawful," can give him the power to do so; but this is a power, not in aid of any private right, nor for the due course and administration of Justice after the commencement of any prosecution or suit; it is altogether initiatory and preliminary. The argument from the collocation of the words "if he shall think fit" in the immediate context is, (in my opinion) much too slender and uncertain to justify the inference that in the earlier branch of the sentence, where those words do not occur, obligation, and not mere power, must have been intended. Apart from those words, the only proof offered of the alleged duty, consists in the assumption that the public must always have an interest in the punishment of every Clergyman offending against any part of the Ecclesiastical Law. I cannot make that assumption.
The Legislature did, no doubt, give the power in question to the Bishop, in trust and confidence that every person chosen to fill, and who had accepted, so high an office would be properly sensible of the duty of maintaining the authority of the law, and would, in proper cases falling within his jurisdiction, use the powers intrusted to him for the correction of offences against that law for the purposes for which they were given. But it is perfectly consistent with that proposition, that it may have been intentionally left to the discretion of the Bishop to judge what were proper cases for the exercise of those powers. I cannot accede to the suggestion made at the Bar, that a Bishop, if he had such a discretion, might be supposed liable to use it in opposition to the authority of the law, or as a means of dispensing with obedience on the part of his Clergy, to any requirements of the law which might not be in accordance with his private views. The Legislature, in my opinion, neither contemplated nor provided against any such case, the occurrence of which was not, when the Act was passed, and is not now, within the bounds of reasonable probability.
The very great preponderance both of practical reason, and of public convenience, and of the inferences to be drawn from what is, and what is not, contained in the Statute itself, seems to me to be against the supposition that the Legislature did intend, by this Act, to make it the duty of a Bishop to inquire by commission into every imputation of an Ecclesiastical offence, or of a scandal, or evil report of such an offence against a Clergyman, which might be brought before him in the way of complaint by any person whomsoever. It is at least not obvious that it would be for the interest either of the church or of the state to open, or leave open, so very wide a door to private intolerance, contentiousness, uncharitableness, or folly. Every passage in a book or sermon to which any individual of different doctrinal views might, in proper form impute heresy, or inconsistency with the 39 Articles; every trivial omission or irregularity in the conduct of Divine Service, even on points where the Law might be in practical desuetude; every venial act of misconduct, atoned for by the offender, and condoned by every one having any real interest in his ministrations; every impertinent and groundless scandal, believed in by nobody whose judgment was of any value; - might thus be made the subject of an enforced inquiry, which from the beginning might be seen to be vexatious and useless, and perhaps very costly and mischievous; and that, at the instance of a person without either private interest or public responsibility. The Bishop would be called in by the Statute, for the first time (instead of a Court or Judge), not to exercise his episcopal judgment with any view to the good of the Church, the peace or good order of the diocese, or the general spiritual interests of his Clergy or laity, but as a passive ministerial officer, to do what he might have the strongest reasons in the world to disapprove. He might have read the book or sermon, and have found it perfectly unobjectionable; he might have received the most unreserved submission to his own judgment in the supposed case of ritual irregularity, and such irregularity might have been wholly discontinued; he might be convinced on the best possible grounds that ample reparation had been made for any other kind of error; or that any alleged scandal was merely malicious and contemptible; and yet he would be compelled to proceed. The complainant might be, not (like the Appellant in this case) a parishioner, but a stranger, neither answerable in costs, nor even offering to substantiate his own accusation; the Statute making no regulation itself, nor enabling any to be made, either as to the form or manner of the complaint, or as to its verification, or as to any costs of the inquiry demanded.
I cannot collect, nor can I presume, that this was the purpose of the Legislature - I do not think it reasonable, and I agree that the present appeal should be dismissed with costs.
My Lords, in this case the Appellant charged the incumbent of a parish within the diocese of Oxford with having committed within that diocese offences against the Laws Ecclesiastical. The charges are all of such a nature that proceedings might have been taken in respect of them under the Public Worship Act. And one point made on behalf of the Respondents was that the proceedings ought to have been taken under that Act. All the Judges below agreed that proceedings could still be instituted under the Church Discipline Act, which applies to any offence against the Laws Ecclesiastical by a clerk in holy orders, though the offence charged was of such a nature that proceedings might have been taken under the later Act. This point was given up at your Lordships' Bar, and is clearly not tenable.
The Appellant complained to the Bishop of those offenses all of which are alleged to have taken place in the parish, and ended his complaint by this formal application
"The above charges I am ready to establish by competent witnesses. They so state further for your Lordship that I am a member of the Church of Englan, and that I am prevented from attending devine services at my parish church by reason of the irregular and illegal mode of conducting divine service on the part of said Thomas Thellusson Carter. I now therefore apply to your Lordship as the Bishop of the Diocese within which the offences against the laws ecclesiastical are charged to have been committed to issue a commission for the purpose of making an inquiry into the grounds of the above charges in accordance with the provisions of the Act of the 3rd and 4th Victoria chapter 86 intilted "An Act for the better enforcing Church disipline" or if your Lordships should think proper to send the case in the first instance by letters of request to the Court of Appeal of the Province to be there heard and determined in accordance with the 13th Section of the said Act."
The Bishop considered the application for some time and then declined to take either course, and the Appellant then obtained a rule for a mandamus to the Bishop commanding him to do either one or the other. This Rule swas made absolute by the Queen's Bench Division and discharged by the Court of Appeal.
The question before this House depends upon the construction of the Church Discipline Act, for if the Legislature cast on the Bishop of a Diocese the absolute duty of forwarding inquiry in one or other of these two ways, there can be no question that the Bishop has not fulfilled that duty, and there can equally be no question that there is power by mandamus to require him to fulfil a duty cast upon him by a Statute. But if the Legislature gave the Bishop power to grant farther inquiry in one of those two ways trusting that he would always do so where it was proper, but leaving it open to him, when convinced that it was not proper, to decline to act; if, in short, the intention of the Legislature was to make it lawful for him to act, if convinced that it is expedient, but to leave it to his discretion to say whether it is expedient, the mandamus will not lie.
The Court of Law does not sit as a Court of Appeal from the Bishop to say whether he has exercised his discretion, if he has one, wisely or not; though if he has no discretion it may compel him to fulfil his duty, and act.
The question as to the construction of this particular Act was directly raised in The Queen v. Bishop of Chichester(2 Ellis and Ellis 209) and there Mr. Justice Wightman thought that the Bishop had discretion, and made that the ground of his decision. But the Court of Queen's Bench did not so decide - Mr Justice Hill, who was the only other member of the Court at the time the decision was made, based his judgment entirely on the discretionary power of the Court of Queen's Bench to refuse a writ of mandamus. Lord Campbell and Sir William Erle, who had been members of the Court when the rule was argued, but had ceased to be so before it was decided, authorized Mr. Justice Wightman to state that they were of opinion that the rule should be discharged, but he did not state on which ground. It seems probable that Lord Campbell would have decided on the ground that he agreed with Mr. Justice Wightman on the construction of the Act, and Sir William Erle on the narrower ground taken by Mr. Justice Hill. There have, since that time, been several expressions of judicial opinion on the construction of this Statute; none of them decisions, but, being dicta, not irrelevant to the subject under consideration, of weight as authorities, though none, I think, of so much weight as the opinion of Mr. Justice Wightman, because in none of them was it the ratio decidendi, as it was with him. Lord Justice Bramwell says,
"I cannot but think we are concluded. The decisions and opinions are such and so many that we ought to follow them. This is my conviction. I think at least none but the ultimate Court of Appeal should overrule opinions so expressed, even if that should, as to which I content myself with observing that where the law has been laid down, and generally supposed and taken to be correctly laid down and acted on, great Judges have doubted much whether, if wrong, the only remedy was not in the Legislature."
I quite agree that where, from the nature of the decision, there is reason to believe that rights have been regulated and arrangements as to property made on the faith that the law was as laid down, it may be right to follow the decision even if wrong. On this I had occasion to express my views in the recent case of Davidson v. Sinclair(Law Reports 3 Appeal Caes 788). But I do not think that this is such a case. Whilst I agree with what I understand to be Lord Justice Thesiger's opinion, that the preponderance of authority in favour of the view that under this Statute the Bishop has a discretion, is great, I cannot think with Lord Justice Bramwell and Lord Justice Baggallay, that the question was, even in the Queen's Bench Division, concluded by authority, and still less that it is so in this, the highest Court of Appeal. I agree that before deciding that such a preponderance of authority was based on a mistake, the case should be considered carefully; and I have he doubt that the Judges of the Queen's Bench Division did so consider it.
I have myself come to the conclusion, independently of those opinions, that, applying the general principles of law as to the construction of Statutes, to this Statute, there is no duty cast on the Bishop enforceable by mandamus, unless, perhaps, a duty to hear and consider the application of the party complaining, which, in this case, the Bishop has done. The case has now been so carefully and elaborately discussed, that I think I may properly at once proceed to the point, where what is, in my opinion, the fundamental error, that which I consider the fallacy, in the judgment of the Queen's Bench Division, lies. That judgment treats the words "it shall be lawful" as ambiguous words, capable of bearing several meanings. And then says "we start with an established canon of construction, namely, that in Statutes of a certain class, of which the Statute under consideration is one, these words have acquired a settled meaning;" and after referring to Re Newport Bridge(2 Ellis and Ellis 377) where it had been laid down that the words "it shall be lawful" primâ facie import a discretion, the judgment proceeds: "but though the rule thus laid down may hold good in the general run of Statutes, in those of the class to which the Church Discipline Act belongs, a different rule has prevailed for a very great length of time, and is now filly established." Cases are cited in support of this position: Rex v. Barlow (1 Salkeld 609), Macdougal v. Paterson (11 Common Bench 755), Morisse v. Royal British Bank (1 Common Bench, New Series 67), Carke v. Powell (2 Ellis and Blackburn 210), The Queen v. Tithe Commissioners (14 Queens Bench Reports 474), and an American case of Supervisors v. United States (4 Wall 435). It then comes to the conclusion that they establish that the words which the judgment considers ambiguous, and, in an ordinary Statute, primâ facie only, are in a Statute relating to public justice, and of general interest and concern, to be deemed primâ facie obligatory.
If this were the established canon of construction it would not conclusively shew that the words were in this Statute obligatory, but it would be a very important step in that direction. But I think that there is no such established canon of construction. I am not aware that it has ever in any previous judgment been laid down, and I think that all of the cases which in the judgment are cited in support of the position so laid down, and all the other cases of which I am aware, in which words in terms empowering have been held to be imperative, are to be supported on a different principle.
I do not think the words "it shall be lawful" are in themselves ambiguous at all. They are apt words to express that a power is given; and as, primâ facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that, primâ facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it: that depends on the nature of the duty and the position of the donee. The earliest case in point of date in which I find this doctrine touched on is Alderman Backwell's Case(1 Vernon 152). The Statute 13 Eliz. c7, s2, enacted that the Lord Chancellor or Lord Keeper, upon every complaint made to him in writing against such person, being bankrupt, "shall have full power and authority by commission under the great seal of England," to issue a commission, and this power was, by 1 Jas. 1c. 15, s.3, extended to bankrupts under that Act. When the Exchequer was closed in 1676, many bankers who had deposited their money there were unable, in consequence of the bad faith of the Government, to meet the demands of their own creditors. Alderman Backwell, who was one, fled to Holland, leaving his son to make what terms he could with the creditors, and apparently the Government helped him. Lord Keeper North seems to have done all he could, and a great deal more than he ought, and kept the creditors at bay for seven years. But at last, in 1783, even he could not delay longer, and according to the report "the Lord Keeper declared, though the words in the Act of Parliament were that the Chancellor may grant a commission of bankrupt yet that may was in effect must and it had been so resolved by all the Judges, and the granting of a Commission was not a matter discretionary in him, but that he was bound to do it." I have already pointed out that the word "may" does not occur in the Statute; but, as I have already said, it is not inaccurate to say that the words conferring a power are equivalent to may.
In one of the County Courts Acts, 13 and 14 Vict. c.61, Sect. 13 the words used were that, on its being proved by affidavit by the plaintiff that the cause was one in which there was concurrent jurisdiction, the Court in which the action is brought or a Judge at Chambers "may thereupon, by rule or order, direct that the plaintiff shall recover costs, and thereupon the plaintiff shall have the same judgment to recover his costs that he would have had if this Act had not passed." The Court of Exchequer had, in Jones v. Harrison (6 Exchequer 328) construed this as giving the Court a discretionary power to refuse the rule. That being a decision on which no appeal lay, was not binding on a Court of co-ordinate jurisdiction, and the Court of Common Pleas in Macdougal v. Paterson (11 chapter Bench 755), and the Court of Queen's Bench afterwards in Crake v. Powell (2 Ellis and Blackburn 210), held a contrary opinion.
In the judgment of the Common Pleas Chief Justice Jervis says that "may" was, "as we think, aptly and properly used to confer on the Court an authority," and later states the rule to be "that when a Statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application." And in Crake v. Powell, Lord Campbell says:
"If the plaintiff be entitled to costs, and the Court or Judge is empowered to make a rule or order for that purpose ex debito justitiæ, he may call upon the Court or Judge to do so." Morisse v. The Royal British Bank(1 Common Bench, New Series 67) was on the same principle.
But there are cases in which the authority or power given is not to do a judicial act, and yet there is a duty on the donee to exercise the power if it appears to be given to the donee for the purpose of making good a right, and he is called upon by those who have that right to exercise the power for their benefit.
The 14th Car. 2c.12s. 18 reciting that constables etc may be at charges in enforcing the poor law, and as yet have no power to make rates to reimburse themselves, enacts "that all constables, etc so out of purse as aforesaid, together with the churchwardens and overseers of the poor and other inhabitants of the parish, shall hereby have power and authority to make an indifferent rate, and to tax all the inhabitants, etc" The inhabitants of several parishes of Derby seem to have combined to refuse to make any rates for this purpose; an indictment was preferred against them, which was removed into the King's Bench, and on motion to quash it the Court refused to do so. The case is reported under different names in Skinner 370, Carthew 293 and Salkeld 609. The report in Salkeld, under the name of Rex et Regina v. Barlow, is in the following words:
"Exception was taken that the Statute only puts it in their power to do so by the word 'may' etc but does not require the doing of it as a duty for the omission of which they are punishable; sed non allocatur. For where a Statute directs the doing of a thing for the sake of justice or the public good, the word 'may' is the same as the word 'shall;' thus, 23 Henry 6 says the Sheriff may take bail. This is construed he shall, for he is compellable so to do."
The word "may" does not occur in the 14 Car: 2 C.12, nor in the 23 Hen. 6 where in the Norman French version the words are "lesseront hors de prison,"; and in the English version "shall let out of prison;" but both are apt illustrations of the rule that though giving a power is primâ facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the powers to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word "may," if the object be clear. Thus in the Public Health Act, 1848 (11 and 12 Vict. c63 sec.89), the words are "The Local Board of Health may make rates prospectively, in order to raise money for the payment of future charges and expenses, or retrospectively, in order to raise money for the payment of charges and expenses which may have been incurred at any time within six months before the making of the rate;" yet on the application of a judgment creditor a mandamus will go to compel the making of a rate for the purpose of satisfying a judgment within six months after the judgment has been obtained: Rex v. Rotherham Local Board(8 Ellis and Blackburn 906); Worthington v. Local Board of Moss Side (1st Law Reports Queens Bench 63).
In Regina v. Tithe Commissioners (14 Queens Bench Reports 474) Justice Coleridge, in delivering the considered judgment of the Court, says: "The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom that in Public Statutes words only directory, permissory, or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice." The only part of this to which exception can be taken is the use of the word "public"; if by that it is to be understood either that enabling words are always compulsory where the public are concerned, or are never compulsory except where the public are concerned, I do not think either was meant. The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. It is far more easy to shew that there is a right where private interests are concerned than where the alleged right is in the public only, and in fact, in every case cited, and in every case that I know of (where the words conferring a power are enabling only, and yet it has been held that the power must be exercised), it has been on the application of those whose private rights required the exercise of the power. The personal liberty of the person arrested by the sheriff, the rights of the creditors of the bankrupt to their debts, the rights of the plaintiff who had recovered judgment to his costs, the right of the constable out of pocket to be paid by the parish, the right of the creditor of the bank or of the local board to be paid, were all private rights. I do not, however, question that there may be a right in the public such as to make it the duty of those to whom a power is given to exercise that power. I should say, for instance, that if, by enabling words, a Court is empowered to pass sentence on one convicted of a crime, it would be the duty of the Court to pass that sentence. But I cannot agree with the Court of Queen's Bench, that whenever the Statute is for the public good, and of general interest and concern, powers conferred by enabling words are, primâ facie, to be considered powers which must be exercised. And I cannot agree that in the Statute now in question there is either a private, or a public right, requiring that this power given to the Bishop must be exercised.
No doubt it is very desirable that the Ecclesiastical Law should be observed; and, both with the view that it should be observed, and with the view to punish those who have transgressed, it is very desirable that there should be the means of bringing to trial, and, on conviction, of punishing, transgressors against that law. But does it follow that it is desirable that it should be in the power of any individual to insist on a prosecution in every case? The author of the Apology (said to be the Dean of the Arches in the reign of Elizabeth) did not think so. He says that the proceedings must be by the office of the Judge, and "the Judge needs not lend his assistance but where he sees good and probable inducements to ground it upon."
Lord Stowell uses language in Maidman v. Malpas, often quoted, so like that used in the Apology as to make me think he had that passage on his mind.
It is true that where due security for costs was given the Judge did not, in practice, refuse his assent, so that there was not a practical check on the improper institution of criminal proceedings in the Ecclesiastical Courts. And it is also true that, in prosecutions for temporal crimes in the temporal Courts, any private person may institute a prosecution, and that the only check provided by the Common Law is that the Attorney-General may take the prosecution out of his hands, or enter a nolle prosequi. And it is also true that in England that power is rarely exercised. But every one who has had experience in Criminal Courts must know that cases do occur in which every one thinks it would be much better that there should be no prosecution. And some, I allude more particularly to prosecutions for bigamy, in which, though there was a conviction, the Judge has said that the prosecution was so improper that he would not allow costs. I do not say that in all these cases the Judge was right, and the private prosecution wrong - far from it; but in every such case the Judge must have thought that it was not for the public benefit that the prosecution should be instituted, though there was a breach of the law.
At Common Law the Master of the Crown Office, being the Queen's Coroner and Attorney in the Queen's Bench, could file ex officio informations in that Court for any misdemeanors; and a practice had arisen before the Revolution, by which he allowed any one to file an information in his name. This was very analogous to promoting the office of the Judge in an Ecclesiastical Court. By 4 and 5 William and Mary Chapter 18, section 2, he was forbidden to do so "without express order to be given by the Court, in open Court." At first it seems to have been thought that the Court ought to grant that leave if it was shewn that there was a breach of the law; but it has been long held discretionary. In Rex v. Stacey(1 Term Reports 1) Lord Mansfield says (speaking of quo warranto informations), "But now since these matters have come more under consideration, it is no longer a motion of course, and the Court is bound to consider all the circumstances of the case before they disturb the peace and quiet of any corporation." And this has been acted on repeatedly: see Rex v. Parry (6 Adolphus and Ellis 810) Rex v. Rector of Lambeth (8 Adolphus and Ellis 356); and Regina v. Wards (8th Law Reports Queens Bench 210). It is difficult, in the face of these authorities to say, that it is impossible to suppose that the Legislature could have intended to leave the Bishop power to consider all the circumstances of the case before he takes a step which may disturb the peace and quiet of the Church, and of his diocese. And at Common Law the prerogative writs of mandamus, prohibition, and certiorari were not writs of course. The Court, when called on to issue them, always exercised a discretion. See the authorities collected in The Queen v. Justices of Surrey (5th Law Reports 5 Queens Bench 466).
It is true that the Courts always thought it their duty to grant the writ where the party applying had a special interest in asking it. And those who framed the Church Discipline Act seemed to have had this in view, as they have, by section 19, said that nothing should affect or hinder any person from executing the right to institute as voluntary promoter, or from prosecuting in such form and manner, and in such Court, as he might have done before the passing of this Act, any suit which, though in form criminal, shall have the effect of asserting, ascertaining, or establishing any civil right. This goes far to shew that it was thought that, but for this section, the prosecution even in such a case would have been subject to the control of the Bishop.
It is also true that, in exercising their discretion, the Courts have thought it very material to inquire whether the applicant was a mere busybody and makebate, or was a person who had an interest, though it fell short of what would fall within the terms of section 19. And I am far from saying that the Bishop should not, in this case, have considered, as one of the elements to guide his discretion, that the applicant was a parishioner. But it was only one element. The Act is general. It allows prosecutions for immorality in which a parishioner is hardly more grieved than any neighbour. And it applies to clerks who have no preferment, and consequently can have no parishioners; and, if the Bishop has no discretion, he must in every case act on the application of any party. I certainly cannot see any sufficient ground for saying that the object of the Statute is such as to lead to the conclusion that the Legislature must have intended to oblige the Bishop to exercise the power which, primâ facie, he is entitled to refuse to exercise. And certainly, if discretion is to be entrusted to anyone, the Bishop is the fittest person to whom to trust it. It is very true that Bishops are but men, and being human may misuse any discretion entrusted to them; but so are Judges, and so are the parties who make a complaint. And it seems strange to say that the Legislature, which has not provided that there shall always be a prosecution, but has left that to the discretion of any one who likes to interfere, could not trust any discretion to a Bishop, who, to say the least, is not more likely to err than any voluntary prosecutor.
My Lords, I do not think it necessary to examine the words and clauses and the history of the Act. I have considered them, and find nothing to lead me to think that it was intended to make the exercise of the power conferred on the Bishop imperative in all cases, though conferred by words primâ facie discretionary.
I see no reason for departing from the rule by which costs are given to the successful party.
Order appealed from affirmed, and appeal dismissed with costs.