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and the Lord Chief Justice of England, or any three of them, shall, by writing under their hands, appoint, in order to provide a salary for the said judge, and a payment for the clerk of the said judge, until a salary for the said judge and a payment for the said clerk is otherwise provided by Parliament.
6. [Principal of the Chancery of York.] It shall be lawful for G. Harcourt Vernon to resign the office of official principal or auditor of the Chancery Court of York, &c., and he shall not be thereby disqualified from continuing to receive compensation under the Court of Probate Act, 1857.
THE FOLKESTONE RITUAL CASE.
Clifton and Others v. Rev. C. J. Ridsdale, in the Court of Arches; and on Appeal before the Judicial Committee of the Privy Council, Ridsdale v. Clifton and Others.
THE Representation under the Public Worship Regulation Act, addressed to the Archbishop of Canterbury, 10th of August, 1875, was signed by Messrs. Clifton, Miller, and Harris, all described as of the parish of St. Peter, Folkestone, who duly declared themselves to be members of the Church of England. This Representation set out in 14 paragraphs the matters complained of, which may be briefly summarised as follows:
The use of lighted candles when not required for light. *The wearing of the alb and chasuble.
The mixing of water with the sacramental wine.
*The use of wafer-bread or wafers in the Holy Communion. *The standing of the celebrant in a position eastward, and away from the people, during the Prayer of Consecration; and-
Kneeling during that prayer; and—
The singing of the "Agnus "after that prayer.
Communicating with only one person to communicate with the celebrant.
A procession, with acolytes and banners, between the Morning Prayer and the Communion Service; and
A procession round the Church at Evening Service, as connected with the service.
*The placing of a Crucifix (with candles) on the screen separating the Chancel from the Nave of the Church.
The setting up, without lawful authority, of pictures or figures known as 66 Stations of the Cross."
The answer of the Respondent, inter alia, admitted the kneeling during the Prayer of Consecration, but stated that this had been discontinued: otherwise it required the charges to be proved. It alleged reasons why the practices complained of should be admitted as not contrary to law; and, in particular, referred to a Faculty obtained in 1870 from the proper Court of Canterbury for the erection of an iron-work screen in the Church.
Evidence was taken and the case was heard on the 4th and
5th of January, 1876, by Lord Penzance, who gave Judgment on the 3rd of February following. This Judgment, which was on all the charges in favour of the complainants, is fully reported in L. R. 1 P. Div. 316.
The Rev. C. J. Ridsdale, on the 16th of February, lodged his Petition of Appeal to the Queen in Council, against so much of the Judgment only as related to the four charges distinguished above by asterisks. The Appellant's printed case gave the following as his reasons for the appeal :(1.) Because the alb and chasuble are not unlawful Ecclesiastical vestments.
(2.) Because it is not unlawful to use wafer-bread in the administration of the Holy Communion in the manner in which it was used by the Appellant.
(3.) Because it is not unlawful for the priest to stand before the Table during the Prayer of Consecration.
(4.) Because the Screen separating the chancel from the nave in the Church of St. Peter, with the figure of our Saviour upon the cross thereon, is a lawful architectural decoration of the Church.
(5.) Because it was not pleaded or proved that any superstitious reverence had been or was likely to be paid to the figure of our Saviour upon the cross on the Screen as aforesaid. (6.) Because nó ground was shown for ordering the removal of the figure of our Saviour from the cross.
After the appeal had been lodged, and before the hearing, the new enactment came into force, under which the Court was strengthened by the addition of five Episcopal assessorsnamely, one of the prelates already members of the Privy Council, and four other Bishops. The assessors on the present occasion were the Archbishop of Canterbury, and the Bishops of St. Asaph, Chichester, Ely, and St. David's. The members of the Judicial Committee present were the Lord Chancellor, the Lord Chief Baron, Lord Selborne, Sir J. Colvile, Lord Justice James, Sir M. Smith, Sir R. P. Collier, Sir Robert Phillimore, Sir Baliol Brett, and Sir R. P. Amphlett.
The counsel appearing for Mr. Ridsdale were Sir J. Fitzjames Stephen, Q.C., with Messrs. Charles, Jeune, and W. Phillimore; and for the respondents Dr. A. J Stephens, Q.C., and the late Mr. B. Shaw.
At the opening of the Appeal the Lord Chancellor intimated that counsel were at liberty to go into the whole of the case, notwithstanding previous decisions and particularly that in the case of Mr. Purchas-by which the Court below had regarded itself as bound. The hearing of the Appeal, which began on the 23rd of January, 1877, lasted for nine days, and at the close of the arguments judgment was reserved.
MAY 12, 1877.-JUDGMENT OF THE PRIVY COUNCIL.
All the Judges were present, except the Lord Chief Baron, Sir R. Phillimore, and Sir R. P. Amphlett (the latter being ill). The Archbishop of Canterbury was the only Episcopal Assessor present. The Duke of Richmond and Gordon, President of the Council, also attended.
The Lord Chancellor (after the case had been called by the Registrar) read as follows:
The appeal of Ridsdale v. Clifton, in which their Lordships have now to state the recommendation which they propose humbly to make to her Majesty, is an appeal to Her Majesty in Council brought by the Rev. Charles Joseph Ridsdale, clerk, incumbent, or perpetual curate of St. Peter, Folkestone, against an order or decree pronounced by Lord Penzance, as Judge or Official Principal of the Arches Court of Canterbury, on the 3rd of February, 1876.
This judgment specified various matters as to which it declared that the appellant had offended against the laws ecclesiastical; but the appeal is brought in respect of four only of these matters, and it is to these only that the observations of their Lordships need be directed.
The four matters as to which the appeal complains of the judgment are these:—
I. The wearing during the service of the Holy Communion of vestments known as an alb and a chasuble.
II. The saying the Prayer of Consecration in the service of the Holy Communion, while standing at the middle of the west side of the communion-table, in such wise that the people could not see the appellant break the bread or take the cup into his hand.
III. The use, in the service of the Holy Communion, of waferbread or wafers-to wit, bread or flour made in the form of circular wafers, instead of bread such as is usual to be eaten.
IV. The placing and unlawfully retaining a crucifix on the top of the screen separating the chancel of the church from the body or nave.
There were eight other charges against the appellant, as to all of which he was admonished by the learned Judge, but as to none of which is there any appeal.
Of the four charges which are the subject of appeal, the three first were considered by the learned Judge to be covered by the decision of this committee in the case of Hebbert v. Purchas, and by the order of Her Majesty in Council made in that case; and as to them he did not exercise any independent judgment.
The fourth charge, as to the crucifix, the learned Judge did not consider to be covered by authority otherwise than indirectly and by implication.
Case of Mr. Purchas.
Their Lordships have had to consider, in the first place, how far, in a case such as the present, a previous decision of this tribunal between other parties, and an order of the Sovereign in Council founded thereon, should be held to be conclusive in all similar cases subsequently coming before them. If the case of Hebbert v. Purchas is to be taken as absolutely conclusive of every other case, with the same or similar facts, there can be no doubt that the decision of the learned Judge on the first three heads, being in accordance with that of Hebbert v. Purchas,
In Hebbert v. Purchas the defendant did not appear, either before the Dean of Arches or before the Judicial Committee; but, after the decision of the Judicial Committee was pronounced against him, he presented a petition praying for a rehearing.
The Judicial Committee, to whom that petition was referred, were of opinion that to have granted such an application would have been to violate the spirit of the 2 & 3 William IV. c. 92, which transferred the powers of the Court of Delegates to the Sovereign in Council, and provided that every judgment, order, and decree should be final and definitive, and that no commission should thereafter be granted or authorised to review any judgment or decree made under that Act.
All that this decided was the finality of that judgment inter partes; and the propriety of its being held final in that case was the more obvious from the fact that a defendant not appearing in the primary court or on the appeal might be supposed to be lying by, taking the chance of a decision in the first instance, and then trying to get rid of it when it turned out to be unfavourable.
The present case, however, raises the question of finality, not inter partes, but as against strangers.
In the case of decisions of final Courts of Appeal on questions of law affecting civil rights, especially rights of property, there are strong reasons for holding the decisions, as a general rule, to be final as to third parties.
The law as to rights of property in this country is to a great extent based upon and formed by such decisions. When once arrived at, these decisions become elements in the composition of the law, and the dealings of mankind are based upon a reliance on such decisions.
Even as to such decisions it would perhaps be difficult to say that they were, as to third parties, under all circumstances and in all cases absolutely final, but they certainly ought not to be reopened without the very greatest hesitation.
Their Lordships are fully sensible of the importance of esta