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Decisions of the Superior Courts of New South Wales, 1788-1899

Duffus [1847] NSWSupC 22

diocesan court, adultery, clergy, discipline of, ecclesiastical law

Diocesan Court

Lord Bishop of Australia, 8 November 1847

Source: Sydney Morning Herald, 9 November 1847, in Supreme Court Collection, Vol. 1, pp 21-24

DIOCESAN COURT.

The Lord Bishop of AUSTRALIA held a Court yesterday, in the vestry of St. James's Church, for the purpose of hearing the Rev. J. Duffus, in reply to certain charges which had been preferred against him.

The Court was composed of the Bishop, with the Revds. Dr. Cowper, J.C. Grylls, M.A., W.H. Walsh, M.A., and R. K. Sconce, M.A., Mr. Norton the Registrar, and Mr. H.K. James, his Deputy, were also present.

Shortly after ten o'clock the REGISTRAR read a citation, calling Mr. Duffus, on his canonical obedience, to appear before the Bishop and undergo his personal visitation with respect to certain articles of accusation. The articles of accusation charged Mr, Duffus with various acts of incontinence and adultery, with one Charlotte Ann Forbes, with having irregularly and clandestinely baptized the illegitimate child of the said C.A. Forbes, and with having written a letter to the said C.A. Forbes, advising her to marry one W.K. Bull, for the purpose of concealing his said incontinence and adultery.

Captain MOORE (one of the Churchwardens of Liverpool) and Mr. E. M'Ginnis, proved the service of the citation on Mrs. Duffus, at the parsonage house.

A certificate from Dr. Eckford was then handed in, dated November 7, stating that Mr. Duffus was subject to fits of an epileptic kind, and that he would be totally unable to appear before the Bishop.

The Bishop said, he was sorry for the cause of Duffus's absence; but as he had already appeared in person before the Commissioners, and could now, if he had so determined, appear by counsel, for the purpose of doing away with the effect of the evidence which had been taken, he did not know that his presence was strictly necessary. He hoped to be able to do that justice in the case which, from the beginning of the proceedings, it had been his object to effect.

His LORDSHIP then delivered the following address:- The present case is the first in which after nearly twelve years' presidency over this diocese, I have found it necessary to have recourse to the coercive powers with which every bishop is invested, and to sit formally in judgement upon the conduct of a Presbyter of the Church. This is a suit promoted against the Rev. John Duffus, M.A., the licensed minister of the parish church of St. Luke, in the town of Liverpool, at the instance of Samuel Moore, Esquire, J.P., Thomas Holt, junior, Esquire, J.P., and Richard Sadleir, Esquire, against the reverend defendant. The gentlemen in question have held the office of churchwardens of the parish and church abovementioned; and though there may be some legal technicality deficient as to the fact, or, at any rate, the regularity of their appointment for the current year, yet, as I had by law the powers necessary to remedy that defect, if it were legally shown to exist (which, however, it has not been), I considered it right to regard them as quasi or virtual churchwardens; qualified to present before me any part of the conduct of their minister, which they might regard as plainly contrary to the laws of God, and to the example which every clergyman of the Church of England is bound to set before his parishioners, in the regulation of his own conduct, and the irreproachable habits of his own household. "Will you be diligent to frame and fashion your own selves and your families according to the doctrine of Christ, and to make both yourselves and them, as much as in you lieth, wholesome examples and patterns to the flock of Christ?" That is the solemn question addressed to all who propose themselves to undertake the holy office of the priesthood; and before it is conferred upon them they must each of them necessarily return this answer--- "I will apply myself thereto, the Lord being my helper." Without scruple or hesitation, therefore, I express my persuasion that if the churchwardens or acting churchwardens, of any parish, shall have before them what they, as honest men and friends of the Church, regard as credible proof that their clergyman is deviating from the engagement which he has thus entered into, they are not only justified in bringing the case under the notice of the Bishop, but they are in conscience and in virtue of their office, most solemnly bound to do so. They must be aware that they are the representatives of the people in the Church; and I must hold this principle, that no representative ought to see any wrong done to those whom he represents, without using his utmost exertions lawfully to have it redressed. The churchwardens, I agree, do by that very act of accusation, put themselves also on their trial. If it shall appear that they have promoted a charge from any feeling of personal malice, or from too readily giving ear to frivolous or calumnious rumours, which we al know it is not difficult to raise against any man, (especially, perhaps, a clergyman), I have no hesitation in saying that their personal reputation must suffer in the estimation of all right-thinking men. It is upon this ground that I have always objected to receive charges against any clergyman, unless they were accompanied by these preliminary guarantees:- First, that they be not vague or general, but determinate; specifying the crime, and the time, place, and circumstances, under which it was alleged to have been committed. Secondly, that the accusation be promoted by some known and responsible party or parties, whose good name and station in society should afford due security that they would not expose themselves to the scandal of bringing a charge against a clergyman wantonly or without some credible grounds for believing that it might be true. In the present case both these conditions were fulfilled. The charge stated, as will be seen, was perfectly definite; and in addition to their capacity as churchwardens of the parish, two of the promoters were justices of the peace for the territory, and the third was an officer of long standing, holding a commission in the Royal Navy. I make no apology for saying that I consider these gentlemen as indirectly upon their trial also; because it is evident that they must suffer in reputation, if they upon frivolous and vexatious grounds shall have brought a clergyman into the Court of Diocesan upon such charges. This will be readily admitted when I state what the charges are, as deduced from the documentary statements which Captain Moore, in the name of himself and colleagues forwarded to me on the 14th of August last. The charges are these:-

I. That the Rev. John Duffus was guilty of acts of incontinence and adultery with Charlotte Ann Forbes, now Charlotte Ann Bull, in the parsonage at Liverpool, at Botany, and in Pitt-street, Sydney, at various times between the months of June, 1845, and June, 1847.

II. That he irregularly and clandestinely baptized a child, of which the said Charlotte Ann Forbes was delivered on the 2nd of June, 1846.

III. That he wrote and forwarded to the said Charlotte Ann Forbes a letter dated Botany 1st July 1846, wherein he recommended and persuaded the said Charlotte Ann Forbes to marry one W.K. Bull, with the intention of concealing the acts of incontinence and adultery of which he had been guilty with the said Charlotte Ann Forbes.

I am not aware that any benefit could arise from detailing the contents of the correspondence which ensued upon my communicating to Mr. Duffus the purport of these charges. The only points which may be considered as bearing in any degree upon the merits of the case are the following:-On the 28th of August, the Rev. J. Duffus wrote to the Bishop of Australia a letter containing the following paragraph:- "Too poor at the present moment to obtain the advice or assistance of even an attorney, I shall lay before the Commissioners the simplest evidence of facts supported by the testimony of most credible witnesses, and not attempt to embarrass them by any equivocation of law." On the 30th of the same month the Bishop wrote a letter, from which the following is an extract:- "If you state formally that you need legal advice beyond such as you may have the means of providing, I will take the application into my attentive consideration, with the intent of endeavouring to supply that need in such way as may be required to secure the ends of justice." In a letter dated 2nd September, Mr. Duffus says, "With regard to your Lordship's kind offer of legal assistance, I beg to observe that I have consulted no one but my wife about the difficulties in which I am involved, and desire to consult none. My own consciousness of my innocence shall be my only advocate." On the 7th September, it was notified to Mr. Duffus that the Commission would assemble on the 21st of that month, consisting of the following members: The Rev. H. T. Stiles, (Commissary), M.A., the Rev. R. Forrest, M.A., the Rev. W. Stack, B.A., the Rev. W.B. Clarke, M.A., and the Rev. B.L. Watson, M.A. All these were of Mr. Duffus's own selection and approval, except Mr. Stiles, who was nominated by the Bishop as his official. In a latter to the Bishop of Australia, dated June 21st, Mr. Duffus had said, "I have to beg that the Commissioners may sit in Liverpool; there are some things which must be proved, but which cannot be so except on the spot. The very house itself is one of my witnesses." The Commissioners were therefore directed to sit in Liverpool. In a note not dated, but apparently written on the 10th of September, Mr. Duffus states to the Bishop of Australia, "One of my legal advisers is obliged to attend the Maitland Assizes, I therefore request that your Lordship will postpone the meeting of the Commissioners for one week."

On the 11th September, the Bishop of Australia wrote in reply in the following terms:-

"In your letter of the 2nd instant, acknowledging the offer which I had made to you to provide professional advice and assistance for you, you declined to avail yourself of it. Since then you have changed your views and made an application to me, which I am very willing to comply with, that an attorney and advocate should be assigned to you. As, therefore, the obstacle which you now find to exist to the attendance of one of those parties, might perhaps have been provided against if your determination had been formed at as early a period as it might have been, I think I should be acting unjustly towards the other parties and towards the clergy who have been already cited to attend on the day first named, if they were made liable to inconvenience through a delay which they have had no share in causing. I cannot, therefore, comply with your desire that the enquiry should be postponed." On the 18th of September, the Bishop of Australia received a letter from R.J. Want, Esq., solicitor for Mr. Duffus, urging, on various grounds, the postponement of the case. In reply to the same the Bishop of Australia stated to Mr. Want:-"Into the reasons which you offer in support of this application it is not in my power at this time to enter. Neither indeed would it be of any avail to do so, as there is a preliminary difficulty to be considered, which is independent of those reasons. The statements upon which the inquiry is to proceed have been submitted to me by gentlemen resident in the district of which Mr. Duffus is the licensed minister; and they have had the appointed day officially notified to them, have made their preparations for giving attendance then with such witnesses as it may be their purpose to produce on that occasion. At this late period, therefore, I could not take upon myself the responsibility of consenting to a postponement even for a single day, without being furnished with a written expression of their consent thereto, and with an engagement that they will attend with their witnesses on any future day to which the inquiry may be adjourned."

On the same day the Bishop of Australia had a personal interview with Mr. Want, at the request of the latter; and in consequence of what passed between them, he addressed a letter to the three gentlemen, promoters of the charge, in which, after stating the application made to him for postponement, he added "I could not undertake the responsibility of putting off the inquiry, unless I had, in writing from you, an expression of your concurrence, and an engagement to appear with the witnesses whenever the commission should be assembled." On the 19th of September, Captain Moore, on behalf off himself and colleagues, wrote to the Bishop of Australia in these terms: "As this is a preliminary enquiry, and either will be dismissed, or (should your Lordship so decide) lead to ulterior proceedings, in the name of my colleagues I decide against postponement at this advanced stage. Should the Commissioners decide that there are prima facie grounds to bring it under your Lordship's notice for a second hearing, in that event the Rev. gentleman, according to your Lordship's communication to us, can have the benefit of being heard through the medium of counsel."

On the next day but one after the date of this letter, the Commissioners met at Liverpool, and (the whole of the members being always present) continued their sittings by adjournments until the 7th of October, having met on twelve days during that interval. The examinations and cross-examinations upon oath of all the witnesses who were presented before them, were proceeded with, and taken down in writing. These records of the proceedings, together with documents referred to in the course of them, were transmitted to me by the Commissioners through their Chairman the Commissary, together with a report, under their hands and seals, stating the determinations they had arrived at upon the several articles of charge against Mr. Duffus, which had been referred to them for enquiry. Previously to entering into a statement of the nature of that report, it will be proper to observe, that Mr. Duffus has taken an objection to the validity of the entire proceeding of this enquiry into his conduct, maintaining (if I understand him aright), that I have no right to exercise any ecclesiastical authority in his case. It is true I cannot say he made his objection in limine, inasmuch as the paper which he terms his protest, was not produced before the Commissioners until near the termination of their proceedings; and upon that ground was very properly rejected by them. At the same time, if there were any validity in the objections offered, I should be very sorry that any mere formal or technical difficulty should interfere with their undergoing a fair and attentive examination. The impressions of Mr. Duffus, as to the nature and extent of Episcopal authority, as expressed by himself, are extremely vague. Nevertheless, it is evident that he has upon his mind some volition or inclination towards the opinion that no such authority, even as extending to enquiry into his moral conduct, can be made to reach him. In a letter addressed to me on the 28th August, 1847, Mr. Duffus says--- "I therefore beg respectfully to protest against the arbitrary application (of the English Act) to this colony. This your lordship will understand to be a protest made upon the general principle that English laws, especially ecclesiastical, cannot by mere virtue of their being parliamentary enactments, be always applied to the British dependencies. 'Colonists do not carry with them the jurisdiction of spiritual courts to their plantations.' (Blackstone.) Nor can letters patent of the Queen either enact such laws ecclesiastical for a colony, or institute spiritual courts in it." I cannot recollect, nor have I upon search been able to trace, any passage exactly agreeing with the quotation professedly taken from Blackstone. But it is not of importance, inasmuch as no assumption can be more gratuitous than that I ever maintained that colonists generally in the plantations were under the jurisdiction of spiritual courts, or that Acts of Parliament regulating the proceedings of such Courts in England, were to be applied here; or that letters patent of the Crown conferred on me any ecclesiastical authority which (with a single exception to be mentioned afterwards), I did not possess without them. I much suspect that these could not be genuine objections of Mr. Duffus himself, but must have been suggested or put into his thoughts by some one whose own ideas on the subject may not have been very clear. But that any clergyman remembering the solemn obligations towards the Church in general, and his own Diocesan in particular, which he has voluntarily taken upon himself, should have the indecency to maintain that because certain Acts of Parliament are not in force here, or because the colonists as a body or individually are not liable to the jurisdiction of the spiritual courts, that therefore he, a clergyman, under canonical vows, is or ought to be exempt from the visitation of his bishop, and may protest against him, which is in other words, may set him at defiance, is the most unreasonable and improper mode of proceeding that I ever recollect to have met with an instance of. It is indispensable however, as that position has unhappily been taken, that I should, at whatever risk of wearying those who hear me, enter into a clear statement both of the grounds upon which, and of the extent to which, I maintain that the ordinary jurisdiction of a bishop of the Church of England over his clergy may be lawfully exercised in a British colony, being properly a plantation as this is, and not acquired by right of conquest. I wish in the outset to make myself clearly understood as willingly admitting that the Acts of the British Parliament for regulating and enforcing ecclesiastical discipline may not be in force in this colony. It is not for me to decide positively that they are not; but at nay rate I do not wish them to be; I take nothing from; I do not need them. Again, as to the force and effect of letters patent from the Crown, do I look upon these as the foundation of the right of inspection I claim to exercise into the conduct of the clergy? by no means. The letters patent do not confer that right, but assume its existence. They assume indeed two things: the inherent powers of episcopacy and the existence of the common law of England; and they define within what limits that power may be exercised in accordance with that law. This is what I referred to in saying that the letters patent gave me only one degree of authority which I should not equally possess without them. But for the foundation of episcopal jurisdiction I must go farther back. I hold it to be inherent in the office, and the office itself to form part of the Christian constitution. I might urge this as an argmentum ad hominem to every one who like Mr. Duffus has declared his assent to the 39 articles, and to all things contained in the Book of Common Prayer. But that would not be by any means to carry the argument to its just extent. I contend that the existence of such a right of juridical inquiry into charges made against a clergyman, is conferred upon every bishop by Divine authority, in these words of St. Paul to Timothy, "Against an elder receive not thou an accusation but before two or three witnesses." I insert the word thou which is clearly expressed in the original though not in our translation, in order to show that it was to one single person, like the Bishop of the present day, and not to a synod or congress of many persons, that the authority of receiving an accusation against a presbyter was committed. And as that single person was prohibited from admitting the charge except upon a certain condition, it is clear that when that condition was complied with, he was authorised to enter upon the inquiry; and it requires no profound logic to show that the party who was the subject of it must be in conscience bound to undergo the visitation. As Dr. Henry Hammond in his remarks on the passage very learnedly shows, the discipline of the Christian Church in this respect is nothing more than a continuation of the judicial proceedings among the Jews, wherein the admission of the cause or suit is the first step; and, as against an elder of the Church ought not to be received if there be not great cause for it. These principles of ecclesiastical discipline are plainly followed out and adopted in our own Church. The 26th Article appoints, that "it appertaineth to the discipline of the Church that inquiry be made of evil ministers; and that they be accused by them that have knowledge of their offences; and, finally, being found guilty by just judgement, be deposed. ["]Among the inquiries made of every bishop at the time of his consecration, is the following, clearly indicative of the authority which he must receive, in order to fulfil the duty to which he is required to pledge himself:- "Such as be unquiet, disobedient, and criminous within your diocese, you will correct and punish according to such authority as you have by God's Word, and as to you shall be committed by the authority of the realm," the answer hereto being "I will do so by the help of God."

I proceed not, however, any farther in this direction, because the question intended to be raised, concerns not, I believe, so much the existence of scriptural authority for the peculiar jurisdiction of bishops, as their legal rights and power to exercise the same, even if its existence abstractly be not denied. Upon this point I am quite prepared to meet such objections as have yet been raised; and to maintain our legal right to act according to the rules by which I am now acting, in deciding judicially kin our own courts upon cases corresponding in their nature with that which is now before me. It is not my wish, as has been already seen, to derive the authority for this from Acts of Parliament. I stand entirely upon the ancient common law of England, which, if the bishops were careful not to exceed the limits of the authority which it granted, did always allow them quite as extensive an exercise of authority as the circumstances of their situation required; and in the exercise of it, united with proper caution, the common law courts have always protected them. Even Sir William Blackstone, whose sentiments were in general so little favourable to the principles of ecclesiastical law, and to the authority of its courts, goes so far as to say, "The timely aids which the common and statute laws have lent to the ecclesiastical jurisdiction, may serve to refute that groundless notion which some are too apt to entertain that the courts of Westminster Hall are at open variance with those at Doctors Commons. It is true they are sometimes obliged to use a parental authority in correcting the excesses of these inferior courts, and keeping them in legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from the contempt which, for want of sufficient compulsive powers, would otherwise be sure to attend it." Vol. III., p. 102.) The mention of this parental assistance accorded by the courts of law to the ecclesiastical tribunals, though not expressed in terms the most flattering to the latter, does yet involve a confession that the latter had a separate existence and jurisdiction of their own. It would be a vain attempt I am sure for any advocate for the rights of the common law to show that there ever had been a time in England, within the records of history, when the bishop's right to enquire personally into the conduct of the clergy, and to inflict censure, was not admitted by the common law. And if it be said that the times referred to were before the Reformation, and that that has made a difference, my reply is, that the Reformation not only did not take away the bishop's right, but has, in its consequences, afforded many manifestations to the principles of English law, even more satisfactorily than before. The great cause of the contest arising \and the jealousies existing between the common law courts and the ecclesiastical, was evidently the exorbitant pretensions advanced by the latter to a jurisdiction which did not belong to them. "It soon became," as Blackstone observes, "an established maxim in the papal system of policy that all ecclesiastical persons and all ecclesiastical causes should be solely and entirely subject to ecclesiastical jurisdiction only." (Vol. III., p 62.) There can in the present day be no question that, so far as such a claim as this was asserted, it was insulting; and so far as it was carried into operation was a grievous attack upon the constitutional authority of the legislature and the liberty of the subject. If an ecclesiastical judge attempt to take cognizance of an offence which, being committed by a clergyman, is legally punishable by sentence of a court of law, he is evidently intruding into a province which does not belong to him, and ought to be, as not doubt he would be, effectually restrained from continuing such a course. But on the other hand, it is acknowledged that clergyman are deservedly liable to censure and punishment for acts which are not criminal by law. What civil court, for example, will sentence a man for keeping a mistress, and yet if it be a clergyman who so offends, is he to go unpunished; and if he be not triable and punishable by the bishop, in what manner is the scandal of such an offence to be removed from the Church? I have sound reasons for saying that the law of England does, and as it is Christian, or avowedly makes Christianity a part and parcel of that constitution, the law must recognise the bishop of every diocese as duly invested with authority for such a purpose. And upon looking back, I cannot find as much as one instance of the interference of the Civil Courts with the jurisdiction of the bishop over the clergy, upon the ground that he had no right to exercise it. On the contrary, after a very attentive review of all the records of their interference which I have been able to meet with, my conclusion is, that neither have the Judges not the Parliament in Westminster Hall ever gone upon the principle of denying the legality of proceedings in spiritual Courts, when confined within their due limits, but have directed themselves solely to reduce any exorbitant pretensions of such Courts aiming to extend their jurisdiction beyond its proper limit, and to engage in matters which do not rightly fall within their province. The exorbitant pretensions I allude to, had certainly risen at one period of our history to a very intolerable height; and therefore it is not very much to be wondered that when the Reformation came, there should have been for the moment, an [phrase in Greek script], a tendency to draw to the opposite extreme. It could have been only through the prevalence of such a tendency that an Act was passed (1 Ed. VI., c. 2) prohibiting the bishops from issuing summons and citations in their own names, and requiring all summons and other processes to be in the name of the King, and all persons exercising ecclesiastical jurisdiction to have the Kin's Arms in their seals, in acknowledgement that all jurisdiction spiritual was from the King's majesty alone. If this statute had continued in force, it so entirely altered the fundamental principles of ecclesiastical jurisdiction as might, it is probable, have prevented the exercise of it even here, although the Act in question might not have directly and immediately extended to this colony. But, as may be seen in Bishop Gibson's Codex. J.E. (p. 113), it is not in force, according to the opinion of Lord Chief Justice Popham, Sir Edward Coke, and others, and of the twelve judges, in 1637; who, having been specially consulted, replied, "that processes may issue out of Ecclesiastical Courts in the names of Bishops; that a patent under the great seal is not necessary for keeping such Courts, or for enabling the issue of citations, suspensions, excommunications, or other processes of the Church; for that the Act of 1 Edward VI, which enacted the contrary, is not now in force." The ground of this opinion was principally that the 1 Eliz. c. 1. had revived expressly and by name the Act of 25, Hen. VIII., c. 20, which appoints that archbishops and bishops, having renounced the papal authority, should proceed in the exercise of the Episcopal office in the same manner as their predecessors had done. It is not my purpose to rely upon this Act of Henry the Eighth's time as if it had any special force in sanctioning my course of proceeding, otherwise than as it removed the only obstacle which, so far as I can discover, might have been pleaded in opposition to my exercising the common law jurisdiction over the clergy of my own diocese. It is a jurisdiction which the Courts of common law cannot exercise, because it relates to a class of offences which are not cognizable by their rules, and are visitable only because the party accused happens to be a clerk in holy orders. And I must again say that I do not found my competency so to visit such offences upon any power conveyed to me by my letters patent. Their sole effect, it appears to me, is to determine, under the royal sanction, within what limits an already existing authority shall be exercised, and by whom ---that is to say, they mark out a diocese, and provide for the entrance of a bishop canonically qualified. That I am correct in entertaining these views will be established more satisfactorily by an opinion dated "Doctors Commons, 27th December, 1845," under the hands of Sir John Dodson, the Queen's Advocate, Sir Frederick Thessiger, and Sir Fitzroy Kelly, at that time Attorney and Solicitor General. It is addressed to Lord Stanley the then Colonial Secretary of State, in reply to some questions which by his Lordship's directions had been proposed to them, as law officers of the Crown, touching some points of law which had arisen in the diocese of Tasmania. "We are of opinion," they say, "that by the appointment of a chaplain to officiate in Van Diemen's Land, whether by the government here or in the colony, he cannot lawfully act without being licensed by the Bishop, that upon refusal by the Bishop to license, an appeal lies to the Archbishop of Canterbury; that upon the revocation of a license no formal trial is necessary; that the Bishop however should not act without what he deems a sufficient cause, or without giving the party accused an opportunity of answering the charge against him; that there is no form of institution or induction, or form analagous to either, in Van Diemen's Land; the appointment and the license are all that can take place; that the Bishop may try, convict, and punish, for ecclesiastical offence, without the aid of any new court to be created by the local legislature or otherwise; but he must proceed judicially with the assistance of such officers as are created by the letters patent, and decide according to the best of his judgement. There must be a distinct charge; the accused must have due notice and a fair opportunity of answering and defending himself, and of examining his witnesses and cross-examining the witnesses against him. That the 3rd and 4th Vict, c. 86, does not extend to the colonies; that, therefore, of the clergyman were unlicensed he could not legally officiate at all; and that if any license had been granted, the revocation of it by the Bishop was valid."

It would ill become me perhaps to pretend to point out omissions or deficiencies in the legal view of a question which has had the benefit of so much professional consideration by men of the highest eminence. But I cannot divest myself of a persuasion that one most important point of law, directly bearing upon the question, has nevertheless been overlooked. I mean the consideration that the lawful existence of this diocese, and of the adjoining diocese of Tasmania, has been recognised by Act of Parliament, and thereby the legal force and efficacy of the letters patent by which those dioceses are respectively constituted has been declared and confirmed. I refer to the Act of the Imperial Parliament, 6 and 7 Vict., c. 35, which is in the following terms:-"Be it enacted, therefore, by the Queen's Most Excellent majesty, by and with the advice and consent of the Lords Spiritual, Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That it shall be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom of Great Britain and Ireland, to sever Norfolk Island from the Government of New South Wales, and the Diocese of Australia; and from and after such day Norfolk Island shall cease to belong to the Diocese of Australia, and shall be taken to be a part of the Colony of Van Diemen's Land, and of the Diocese of Tasmania."

It must appear presumptuous of me, possessing no more acquaintance with the law than that which may be generally attained by persons of ordinary curiosity and research, to venture to found an argument on the constitution or force of an Act of Parliament. But having bestowed my best attention upon the subject, I cannot but arrive at the conclusion that the Act of Parliament just recited does recognise the legal existence of the two dioceses named in it, at the time of the passing of the Act (28th July, 1843). Not only does it recognise their existence, but it seems to me to establish by implication several important conclusions connected with them. I am mindful of the restriction attached to the admission of implications by Blackstone. "In general," he says, "when any implications are allowed, they must be such as are necessary (or at least probable ) and not merely possible implications." (B. II. ch. 23, vol. 2, p. 381.) To this is annexed in the edition of the Commentaries by Mr. Justice Coleridge the following gloss by the late Lord Eldon: "necessary implication means not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed cannot be supported." (Note 6.) These eminent lawyers are speaking here of the interpretation of deeds and wills; but the same principle I apprehend must necessarily preside over the interpretation of an Act of Parliament; indeed of every human composition. My deductions in the present instance recommend themselves to me the more satisfactorily because they stand not upon what is barely possible, or highly probable; but fulfil, I think, the harder condition, of being necessary; that is, in Lord Eldon's sense, such that the contrary cannot be supported. The Act of Parliament recognizes in express terms the existence of "the Diocese of Australia." A diocese is by definition "the circuit of a Bishop's jurisdiction." Where there is a diocese, therefore, there must be by necessary implication a Bishop. Upon a strong ground therefore I argue that the Imperial Parliament in recognizing the "Diocese of Australia," must recognize the Bishop of Australia" as existing in the eye of the law; and by form of law entitled to all the privileges purely ecclesiastical which constitutionally and of common right are assured to every English Bishop. Similarly it appears to me to follow by necessary implication that the binding force of the letters patent creating the Diocese of Australia is acknowledged by this Act of Parliament. For what occasioned Norfolk Island to form a portion of this Diocese but the warrant of those letters patent; and if, as some say, they be of no legal form or effect, how came it to require the force of an Act of Parliament to provide for partially undoing their effect? If it exceed the prerogative of the Crown to erect the Diocese of Australia, then in the eye of the law such Diocese would not exist; and Norfolk Island could not be so tenaciously bound to that which had no existence as to require the form of an Act of Parliament to separate it. Parliament, by admitting the validity of the annexation of Norfolk Island, must be held to have legalized ipso facto the instrument, that is these letters patent, under and by virtue of which alone the annexation took place. And if this first admission be made, it follows by necessary implication that Parliament could not intend to stop short of the conclusion; or to legislate upon the unreasonable supposition that there was to be a diocese, yet no bishop; or a bishop without jurisdiction over his clergy; or jurisdiction without any lawful means by which it could be enforced. The only inference which I draw from all this is, that it has been too hastily taken for granted that, if the Supreme Court were to be appealed to for that parental protection of the court spiritual which Sir William Blackstone speaks of, it would be refused. It is not for me to anticipate what might be the decision of their Honors the Judges in such a case. But taking into consideration that the corrective jurisdiction of a bishop over the clerks in his diocese has always been admitted by the courts of common law when exercised upon proper subjects and within proper limits, and that it is by implication sanctioned by a statue of the British Parliament, which is by its very title declared to be in operation in this colony, I do with humility express much doubt whether on their Court being moved on my behalf, (as for example to the case of wilful and corrupt perjury committed by a witness in any case like that before me.) I do presume, indeed, to doubt whether their Honors, in the exercise of their discretion, could or would feel themselves justified in treating the jurisdiction of the Bishop over his clergy as a non-entity, and upon that ground refuse to entertain the charge.

I do not know whether this will be the most suitable place for introducing the subject, but in illustration of what I am now observing, I will not lose the opportunity of directing your attention to the position of the Episcopal Protestant Church in the United States. So far as I can ascertain, it enjoys no peculiar legislative immunities, it derives not any protection whatever from the courts of law in the maintenance of its internal discipline; yet it is permitted to exercise that discipline according to judicial forms, and does exercise it very effectively. This is admitted by the author of "the Church of the Future," a book which in its principles tends to the total annihilation of episcopacy, according to the American model. Yet he bears testimony to the efficacy of its disciplinary powers. "The recent deposition of one bishop, and the suspension of another, not on account of doctrine but of offences against morality, shew with what vigour this Church carries out her ecclesiastical system," (p.81). If the English colonial courts will grant no more, at least I should expect them not to attempt to debar us of that privilege which in the American is extended to the Episcopal Church, of judging and punishing clergymen for those offences against morality which the temporal courts do not concern themselves about. To shows the nature and complexion of offences of this class, I cannot, it is probable, do anything more satisfactory than read a extract from our best authority on the subject: Bishop Gibson's Codex, (Tit, xlvi., cap. ix., p. 1968, vol. 2). "It may be proper," he says, "to mention in this place some crimes to which deprivation belongs by Common Law; such especially as have been allowed and confirmed by the Temporal Courts.

1, Want of Orders, or the being a mere layman; to which the sentence of deprivation belongs equally by Canon and Common Law.

2. Want of Abilities. * * * *

3. Want of Age: i.e. of such age as the laws of the Church prescribed; the want of which, by the same laws, was deprivation; and not only by them but also by the laws of the state (or the allowance and determination of the Temporal Courts) antecedent to the stat. 13 Eliz., c.12.

[4.] Simony: which was all along punishable with deprivation.

5. Infidelity and Miscreancy, under which heads may be contained atheism, heresy, schism and the like, which the laws of the church have always punished with deprivation; and supposing the charge to come really under those names, appear not to have been questioned or disturbed by the Temporal Courts in the infliction of that censure.

6. Incontinence: Ann. 12 Eliz., one Burton, parson of Isbock, in Leicestershire, was deprived for adultery; and Ann. 27 Eliz., one Fox was also deprived for the same crime; on neither of which cases the least question seems to have been made in the Temporal Court concerning the validity of the sentence. * * * *

7. Drunkenness: Ann. 8 Jac., 1, one Parker was deprived by the high commission, for drunkenness, and prohibition was denied.

8. Murder and Manslaughter: If any clergyman shall be found guilty of these (and we may add other like felonies) he may not, as it should seem, be proceeded against for the crime itself in order to deprivation, but at least he may be deprived by the Spiritual Court upon the sentence given in the Temporal.

It is unnecessary to prosecute this enumeration any further. The admission by the Law Courts of an ecclesiastical jurisdiction, against the sentence of which, when conformable to law, and in proper cases, no prohibition has ever been admitted, seems to be very clearly established. The true line of distinction, and by which a Bishop acting with suitable caution may securely guide himself, appears to be laid down with accuracy by Hobart, who requires only that spiritual jurisdiction shall not be extended to offences of a civil character, or (as he expresses it) to "holding plea of a cause of the Crown, and the prejudging the King's Court;" on the other hand, "if they would not controvert nor re-examine the Acts of the King's Courts, but build their sentences upon them, they were not to be prohibited."

I will offer one observation of a general nature in conclusion. I am no advocate for placing arbitrary power in the hand of any man, spiritual or temporal. There is nothing which for myself I so little desire, or rather should so earnestly desire to decline. My desire has always been to afford the utmost possible security against the assumption or exercise of such power for the injury or vexation of any clergyman. Wherefore, having laid down as my fundamental position that every Bishop possesses ex-officio the right of inspection n and correction n over all clergymen within his proper diocese, I have been anxious in the mode of exercising that power, to conform, as nearly as circumstances admit, to the rules and practices at the time prevailing in the Consistorial Courts in England. Thus, I conceive, the best security is afforded to the clergy that they cannot be called to account upon new or unprecedented charges, nor subjected to any other rules of discipline than those which have undergone the examination and received the sanction of the Church at large, for securing that "just judgement" with which, according to the Article, evil ministers ought to be visited.

The present has appeared to me a suitable occasion for offering such remarks in explanation of a subject, which, perhaps, is not generally or thoroughly understood, and for the purpose of rectifying some misapprehensions which Mr. Duffus, acting under what advice I know not, has been led to entertain, both as to the ground of episcopal jurisdiction, and as to his own ability as a clergyman to decline the application of it to his conduct. It is evident that this coercive authority (difficult and distressing as it is to him by whom it is exercised) it is an organic and inseparable portion of the episcopal charge; and I would consent that this head should be laid in the dust rather than surrender my just claim to exercise a discipline so indispensable to maintain the credit and purity of the Church and of its ministry. In the instance which has now called that discipline into exercise, I have been assisted and upheld by the services of five clergymen, who have to the fullest extent justified the confidence reposed in them. An assertion was hazarded by the party complained of that he had been condemned unheard, meaning, as I understand the observation, to cast some censure upon the proceedings of the Commissioners. It would be on my part a very unworthy return to make to those gentlemen for the services they have rendered, were I to permit such a charge to be even implied, without giving it the most decided and public contradiction n. Their report merely conveys to me the prima facie impression produced upon them by the evidence then produced. It does not amount to a condemnation. And to say that even that decision was formed without hearing, is plainly contrary to fact, when the number of days employed in the inquiry, and the bulk of the evidence recorded, are taken into account. The Commission, I am satisfied, has been fulfilled with a degree of ability and impartiality of which I can scarcely speak too highly; and to the clergymen composing it, as well as to the Deputy registrar, Mr. James, who arranged and recorded all the proceedings, my thanks are justly due, and are very sincerely offered.

The Bishop then said, that he thought it would be better, to do away with any charge of acting with precipitancy, to postpone the case until Tuesday (this day), at ten o'clock, when, if no one was present on the part of Mr. Duffus, the Court would proceed to the conclusion of the case on the force of the depositions which had been taken.

The Court was then adjourned.

 

Lord Bishop of Australia, 9 November1847

Source: Sydney Morning Herald, 10 November 1847, in Supreme Court Collection, Vol. 1, p. 24-25

DIOCESAN COURT.

SECOND DAY. - TUESDAY.

At the opening of the Court yesterday morning, the Bishop enquired whether any one appeared on behalf of the Rev. John Duffus, to which there was no answer.

The REGISTRAR then read the finding of the Commissioners, which was, that they were of opinion that there was sufficient grounds for believing that the Rev. John Duffus had been guilty of various acts of incontinence and adultery with one Charlotte Ann Forbes; that he had irregularly and clandestinely baptised the child of the said Charlotte Ann Forbes; and that he did write and forward a letter to the said Charlotte Ann Forbes to induce her to marry, with the intention of concealing his incontinence and adultery. This was signed by Messrs. Stiles, Watson, and Forrest. Mr. Stack dissented to the third finding, not thinking there was proof of the intention with which the letter was sent. Mr. Clarke dissented from the finding on the second charge as to the baptism having been clandestinely performed, and to the third, so far as the intention in sending the letter was concerned.

The BISHOP said, that by the finding which had just been read, it appeared that the Commissioners were unanimous as to the first charge; that four of them were agreed as to the second charge, and three of them as to the third charge; two dissenting as to the intention of Mr. Duffus in sending the letter. This (said his Lordship) would have been the time for Mr. Duffus, or his counsel, to show that the evidence which had been taken would not bear out the findings of the Commissioners, and that it did not contain that which would justify his conviction of the charges which had been preferred against him; but as no one had appeared, he must take it for granted that Mr. Duffus had no further reply to make than was contained in the evidence and documents before the Court, and it was his duty therefore to proceed to pass judgement. He felt most painfully the position in which, from the nature of the case, he (the Bishop) was placed, for it was impossible not to see that the principal witness, having to give evidence which tended to her own degradation, was justly liable to suspicion, and from the outset, therefore, he had been on his guard against receiving her testimony, unless where it was corroborated from other quarters. It had been stated by Mr. Duffus, in a latter dated so lately as the 5th instant, that he had been condemned on the evidence of an abandoned woman; he was sorry that such an impression should be on Mr. Duffus's mind, for he had not yet been condemned. It had only been reported that there was a case for inquiry, and that report was not made on the unsupported evidence of the young person referred to, as great care had been taken not to receive her evidence except as supported by others.

His Lordship then went at great length into the first charge. It appeared from the statement of the principal witness, Charlotte Ann Forbes, that in 1843 she went into the service of Mrs. Duffus as nursery governess; that after being there a few months, Mr. Duffus took improper liberties with her, when her mother took her away from the house; that in July, 1844, she, at the request of Mrs. Duffus, went back to the employ, and from that time the criminal intercourse was frequent. It appeared from the evidence of Mrs. Duffus, that in March, 1845, Miss Forbes complained to her that on the previous night Mr. Duffus had come to her bed, and that there had been criminal intercourse, and notwithstanding this she remained in the house until the 8th May, and was there constantly afterwards. It appeared also that in the early part of 1846, Mr. Duffus was residing at Botany Bay for the benefit of his health, when he was several times visited by Miss Forbes, and according to her evidence was intimate with her; and although he must have known that she was pregnant he allowed her to visit his family, and drove her about to various places with his daughters.

With respect to the baptism, the Bishop said they all admitted that it was irregular, but it was said that there was no proof of its being clandestine; but it was performed in another parish, it was never registered, and had never been mentioned to the clergyman of that parish; taking this into consideration with the other parts of the case, he could have no hesitation in saying that it was done clandestinely, for the purpose of concealment.

The explanation which Mr. Duffus gave of sending the letter was, that he wrote it at the request of Miss Forbes's mother, and enclosed it to her saying, that if she thought it would do her good, she was to give it to her daughter, if not, to destroy it. Now the letter itself showed that this could not have been the case. How it reached Miss Forbes there was no evidence to show, but on the outside of it was written in Mr. Duffus's handwriting, "I put the wafer outside that you may not tear the writing, the sheet being full," and the wafer was outside. This quite did away with the statement that it had been enclosed to another person for perusal. Then the letter dated two o'clock, commences by stating that it was written at an hour snatched when all round were asleep, and he had risen from a sleepless bed. Now why (the Bishop) would ask, should a man get up at two o'clock on a winter's morning, when his family were asleep, to write a letter of advice, which was to be sent to a young person, and submitted to the inspection of her mother? The letter itself was of an immoral tendency; it recommended an act of imposture, an act of the greatest deceit of which a woman could be guilty, that of representing herself to a man she was about to marry as a virtuous woman, when she was not so. This was clearly most immoral, especially as coming from a clergyman. When Mr. Duffus wrote this letter, what did he think he could say to the husband if he ever found out the imposture, as he did shortly after his marriage, and openly and directly charged Mr. Duffus with having seduced, and had a child by his wife? Mr. Duffus had complained that he was unable to subpoena witnesses to come and give evidence before the Bishop; but if he had commenced proceedings against the husband for making a false charge against him, the whole case would have been in issue in the Supreme Court, and Mr. Duffus could have subpoenaed any witness he pleased.

It was in 1845 that he (the Bishop) received an intimation from a respectable party that the conduct of Mr. Duffus towards Miss Forbes was calculated to create unfavourable impressions, and he communicated with Mr. Duffus kindly but firmly, and desired him that he would put her away from his house, which he stated he had done; and he produced a letter from Mrs. Duffus, and one from Miss Forbes, which induced the Bishop to hope that however open his conduct as a clergyman might have been to censure, nothing criminal had taken place. From a journal kept by one of Mr. Duffus's daughters, it appeared, however, that although Miss Forbes did not reside in the house, she was constantly visiting there, and according to Miss Forbes's statement the criminal intercourse was continued. He would again repeat, that the testimony of a female giving evidence of her own degradation must be received with extreme caution; but for a man who had defiled a woman to say that therefore her evidence is not to be believed, is to say that by the commission of the crime he prevents any evidence of it from being given.

He had very carefully considered the evidence; he had made an abstract of it, and compared one part of it with another, and, upon the whole of the facts of the case, there was no doubt in his mind that the Commissioners had arrived at a just conclusion, that the Rev. J. Duffus was guilty of acts of incontinence and adultery, at the Parsonage, Liverpool, at Botany Bay, and in Pitt-street, Sydney. As to the second charge, that he irregularly baptized the child, no one doubted; that he did it clandestinely, was, in his mind, equally clear, from the fact of his not registering the baptism, nor mentioning the circumstance to the minister of the parish in which the ceremony was performed. As to the point raised by the two Commissioners, that it was not proved whether the intention of Mr. Duffus was to hide his own guilt or that of another party, he did not think it was of much consequence and would leave the case merely that the letter was sent.

And now he came to the most painful part of the case: in what manner was the guilt which he thought he had shown had been proved, to be visited? For it was a case of that kind, that it was impossible to pass over. He was not clear whether the total deprivation of the clerical character would be too great a punishment, nor had he any doubt of the power of the Bishop to pass that sentence; but in practice, a Bishop does not proceed to that extreme step, without consulting one of his brethren; and as he had not had an opportunity of advising with another Bishop, he would not take a step which it was possible that consultation might convince him was wrong. He therefore decreed that the license of the Rev. John Duffus to the parish of St. Luke, Liverpool, bearing date 1838, should be revoked.

Mr. Duffus, his Lordship said, was entitled to an appeal to the Archbishop of the province, provided his notice of appeal was lodged with the Bishop within fifteen days.

The Court was then adjourned.

[The above is only a brief abstract of the Bishop's decision, which took nearly an hour and a-half in the delivery.]

Published by the Division of Law, Macquarie University