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Colonial Cases

In re Jenkins, 1868

[church governance]

In re Jenkins

Judicial Committee of the Privy Council
1868
Source: The Times, 8 December, 1868


JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Dec. 7.
(Present - Lord Chelmsford, Sir R. Phillimore, Judge of the Admiralty Court; Sir E.  V. Williams, Sir J. Colville, and Sir L. Peel.)
IN THE MATTER OF THE REV. C. A. JENKINS.
The Solicitor-General (with whom was Mr. Archibald), on the part of the Crown, moved for leave to appeal against a decision of the Court of Chancery of Bermuda on behalf of the Rev. C. A. Jenkins and the Attorney-General of the island. The case, he said, involved an important question for their Lordships' consideration. Mr. Jenkins had been presented by the Lieutenant -Governor to the parish of Hamilton and Smith; he was inducted into Hamilton, but at Smith the induction was prevented by physical force and actual violence. The Court of Chancery of the island had refused to issue a writ de vi laica removenda.  From the petition filed in the matter (on which the application was founded), it appeared that the appointment to vacant benefices ever since the establishment of the colony under a Governor in the year 1685 had been vested in the Crown, and had been exercised by the Governors, who, by their commissions, down to the year 1825, were empowered to collate any persons to churches, chapels, or other ecclesiastical benefices in the island of Bermuda as often as they should happen to be void.
  In 1825 Bermuda was first attached to a colonial see - viz. Nova Scotia, then newly created. After that time the Governors' commissions, instead of authorizing them to collate to vacant benefices, required them to present to the Bishop for institution and induction, and they had exercised the power down to the present time, and every beneficed clergyman in Bermuda held his living under that title. The parochial system of the Church of England had prevailed at Bermuda since 1593.  In the year 1839 the bishopric of Newfoundland was created, and the Bermudas were annexed to that see. On the 9th of January, 1867, Lieutenant-General Hamley, acting Governor of the colony, presented the Rev. Charles Alfred Jenkins to the Bishop of Newfoundland's commissary (the Bishop not being then in the colony) for institution and induction to the rectory of the parishes of Smith and Hamilton, then vacant.
  On the day mentioned the Rev. Joseph Frazer Lightbourn, to whom the mandate was addressed (set forth on the proceedings), induced Mr. Jenkins into the parish church of Hamilton, and, proceeding thence to the parish church of Smith for a similar purpose, was met by a large body of persons, who, by a display of physical force and actual violence, prevented the inaction of Mr. Jenkins to the church, and he had ever since been excluded from the parish church of Smith, the doors of which had been closed against him whenever he had presented himself. On the 25th of February, 1867, an application was made to the Court of Chancery of the island for a writ de vi laica removanda, to remove any opposition by force of laity which had been offered. The Attorney-General appeared for the Crown, and the Court refused the writ on the following grounds:-
  "That it was not competent to the Crown to dispense the Church patronage in Bermuda in any other method than that which prevailed when the diocese of Nova Scotia was created, and consequently that the Crown could not legally substitute for collation by the Governor a presentation for institution by the Bishop. That since the decision of the Privy Council in the cases of "Long v. the Bishop of Cape Town,' and 'The Bishop of Natal v. the Bishop of Cape Town,' the Court must hold that it was not competent to the Crown, in a colony having a settled constitution, as Bermuda has, to alter the constitution of the colony as to its Church Establishment by conferring by letters patent on a Bishop any coercive or judicial powers. That the institution of Mr. Jenkins by the Bishop was a judicial act not authorized by law, and consequently that the Crown ought not to grant the writ moved for, the practical effect of which would be to authorize the employment of the Civil force of the colony in aid of the Bishop's mandate."
  The object of the present petition was to obtain an authoritative determination of the question whether or not the Court of Chancery of Bermuda was correct in the view they had taken of the matter. It involved an important point as to all beneficed clergymen in the colony, and under the circumstances special leave to appeal was craved. The learned counsel, in support of the application, cited various authorities.  It was necessary to induct Mr. Jenkins before he could claim the temporalities of the living. The Court of Chancery of Bermuda had refused the writ of de vi laica removanda, which was the remedy pointed out by Fitzherbert, and the matter was now brought before their Lordships.
  Sir Robert Phillimore remarked that the petition alleged that the induction was prevented by a "display of physical force and acts of violence."
  The Solicitor-General said such was the fact, and he could not be inducted until the living of Smith.
  Mr. Archibald dwelt on the nature of the writ which had been refused. Mr. Jenkins might have indicted the parties for the obstruction, but the ecclesiastical law pointed out the course which had been adopted.
  Lord Chelmsford wished to know whether the Court of Chancery of Bermuda had power to grant the writ. It was almost an obsolete writ, and their Lordships were anxious not to give to that Court a jurisdiction which it did not possess.  Writs of the Court of Chancery in England were issued on the Common Law side.
  The Solicitor-General showed from the Colonial Acts that the Court of Chancery of Bermuda was to have the same powers as the Court of Chancery in England.
  Their Lordships considered that the case raised an important question.
  Lord Chelmsford announced that the Committee would take time to consider the case.                  

 

Source: The Times, 25 December, 1868


JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Dec. 24.
.  .  .  
IN THE MATTER OF THE REV. C. A. JENKINS.
  This was an ex parte appeal from the Rev. C. A. Jenkins, of a place called "Smith" in Bermuda, against a decision of the Court of Chancery of the colony refusing a writ of vi laica removanda, to remove the opposition of the laity to his induction to the parish church of Smith. The petitioner had been presented by the Governor to the livings of Hamilton and Smith. He was inducted into the former, but at the latter place was met by a large body of persons, who, by a display of physical force and actual violence, prevented the induction of Mr. Jenkins to the church of Smith, the doors of which have been barred against him whenever he has presented himself there. He applied to the Court of Chancery for the writ mentioned and his application being refused he appealed to the Queen in Council.
  Lord Chelmsford gave the judgment of their Lordships, and dismissed the appeal.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School