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as to

when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application." "For these reason," continues the Chief Justice, we are of opinion that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises." A similar construction was put on the words "it shall be lawful" in the case of Morisse v. The Royal British Bank (1 C. B. N. S. 67), in which it was held that these words, in the 13th section of 7 & 8 Vict. c. 113, the Joint Stock Bank Act, were compulsory, and left no discretion to the court or judge. The case of Crake v. Powell (2 E. & B. 210) is to the same effect. But it is unnecessary to multiply cases in support of this position. "It has been so often decided, says Coleridge, J., in the case of R. v. The Tithe Commissioners (14 Q. B. 459, 474), 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." It may, however, be satisfactory to observe that the same sense has been ascribed to these words in the courts of the United States. In the case of The Supervisors v. United States (4 Wallace's Reports, p. 446), Swayne, J., in delivering the judgment of the Superior Court, after referring to the English and American cases, says as follows: "The conclusion to be deduced from the authorities is that where power is given to public officers, in the language of the Act betore us, or in equivalent language whenever the public interest or individual rights call for its exercise-the language used, though permissive in form, is, in fact, premptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless." Now, the statute we are considering unites both the properties which have been referred to. It has reference to the administration of justice in the matter of ecclesiastical offences; and, as it relates to the maintenance of the doctrines and ritual of the established religion, for upholding the uniformity of which so many Acts of Parliament have been passed, it cannot be held to be other than matter of national interest and concern. Moreover, it is the undoubted right of every inhabitant of every parish in the kingdom, desirous of frequenting the parish church, to have the services of the church performed according to the ritual of the Church, as established by law, without having his religious sense shocked and outraged by the introduction of innovations not sanctioned by law or usage, and which may appear to him to be inconsistent with the simplicity of the Protestant worship, and to pertain to a religion which he believes to be erroneous, and the ritual of which is not that of the Church of England. It cannot admit of doubt that a statute, by means of which a right so important to the general sense of mankind was alone to be capable of being enforced and upheld-since it abolished the previous jurisdiction of the ecclesiastical courts in the matters of clerks in

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orders-is one of general interest and concern, in the construction of which the rule referred to would be applicable. This being so, we have next to see whether we find anything in the language or purpose of the statute which shows that the words were intended to have a less authoritative meaning. So far from this being the case, as regards the language of the 3rd section, we find, as has already been pointed out, that between that part of it which relates to the power of the bishop to issue a commission on a complaint addressed to him, and which enacts that it shall be lawful for him so to do, and that part which enables him to do so of his own mere motion, independently of any complaint, the words "if he shall think fit" are interposed. It is here obvious that if the words "it shall be lawful” had been intended to confer a discretionary power, as these words would, in the absence of the words "if he shall think fit," have governed and controlled the whole sentence, the latter words would have been wholly superfluous. They can only have been introduced, therefore, for the parpose of qualifying the previous expression. Taken as a whole, it therefore seems to us from the collocation of the words that the passage affords the key to its own interpretation, and indicates the sense in which the words in question are to be taken. It was suggested on the part of the bishop that the words "if he shall think fit" in section 3 should be rejected as superfluous. To this we answer that in so doing we should violate a settled canon of construction-namely, that a statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant (Bac. Abr; tit.

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Stacute" I. sub-sect. 2). But this is not all. The words are significant, as indicating the sense in which the words "it shall be lawful" in the precedirg part of the section had been used by the framers of the Act. They would in any point of view have been idle, if not introduced to qualify the effect of the words, "it shall be lawful," as imposing a duty. Wightman, J., it is true, in Reg. v. The Bishop of Chichester, arrived at the opposite conclusion, derived from the enactments of the section in question. His opinion was founded on the ground that the power to issue a commission in the 3rd section applied equally to a case of scandal or evil report of having offended against the ecclesiastical law as to one of an offence charged to have been actually committed; and he argues, ab inconvenienti, that it cannot have been the intention of the Legislature to put it in the power of a prosecutor to call upon a bishop to issue a commission, and so initiate proceedings on what may turn out to be unfounded rumours; the more so as, according to the learned judge, as the law before stood, "the office of the judge could only have been promoted in the case of some direct and positive charge of an offence against the laws ecclesiastical, and no proceeding upon the ground of scandal or evil report of having offended against these laws would have been admissible." But, in the latter assumption the learned judge is, we cannot but think, in error. Public report or scandal was a ground of accusation in the ecclesiastical procedure, not only in the proceedings by inquisition, when the proceeding was taken by a bishop or an archbishop, ex officio Here the articles, Oughton tells us ("Ordo Judic." tit. 141, sect. 1), were to contain "Tam

mero.

causas conventionis (ie., in jus vocationis) quam famam publicam." Again, he says (Ib. n.f. 22), "Etsi reus non tenetur respondere positioni criminosæ, tenetur tamen respondere positioni contineuti famam publicam criminis articulati. Igitur in his articulis famam publica objecti criminis est alleganda et objicienda." Nay, so material was public scandal or evil report deemed to be as founding a charge against a party, that the judge was bound to summon and examine the fellowparishioners of the accused as to its existence.

Si reus negaverit crimum objectum et faman,' says Oughton ("Ordo Judic." tit. 145, sect. 1), "tunc, si crimen objectum fuerit notorium et publicum, ac de eodem publica vex et fama, judex producere et examinare curabit parochianos rei, vel alios quosqunque, ad famam probandam, eosque ad perhibendum testimonium, si rogati recusaverint per censuras ecclesiasticas compellere." Even though the proof of the alleged offence fuiled, if the evil report was established the might be to

purgation-that is, by producing a certain number of compurgatores, who were to swear they believed the report to be unfounded. Si fama confessata vel probata fuerit," says Oughton (tit. 144, sect. 7), "judex potest purgationem indicere." If the accused failed in his purgation, he might be enjoined to do public penance (Ib. 147, sect. 2). The same thing occurred on presentments by churchwardens (see tit. 152) termed by the civilians Denunciatio. Here again, as appears from Conset, Oughton, and the 115th canon, public scandal and report became part of the inquiry, it being, according to the old law, part of the duty of the church wardens to present those against whom, whether ministers or parishioners, such scandal or report prevailed. Nor was this confined to the proceedings by inquisition or by presentiment. On an accusation by a party promoting the office of the judge, the articles in like manner alleged the publica fama of the imputed offence; and here again it is laid down (Oughton, tit. 149, sects. 7 & 8), "Si actor probaverit famam publicam, vel præsumptiones vehementes, ob quas purgatio parti reæ indicta fuerit, vel indici possit et debuisset, quamvis non probaverit crimen objectum, tamen obtinebit sententiam purgationem esse indicendam, et reus est in expensis illius litis condemnandus. Nam reus, negando famam, causavit actorem litigare, et expensas facere circa probationem ejusdem." It thus appears that public scandal or report did play an important part in penal suits in the ecclesiastical courts, and was of itself sufficient to place the party against whom it was brought forward under the necessity of clearing himself by oath; and it is, we think, going too far to say that if a strong case of public scandal had been brought before the judge as the ground for allowing the office of the judge to be promoted, the application would have been refused. We think it not unlikely that the intention being, as we shall presently more fully show, to leave the substantive law as it stood, changing only the method of proceeding, these words were introduced as applicable to the cases in which public report might have formed matter of judicial inquiry. At all events, we think the argument afforded by the fact that in the passage in question the words "if he shall think fit," give, as seems to us, the key to the words "it shall be lawful" in the earlier branch of the sentence, the

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inference arising from the collocation of the words is far stronger than any which can be drawn from the supposed intention of the Legislature, which, after all, can only be matter of surmise. The language of the section, though it might have been more explicit, is, we think, too clear to warrant us in speculating on the legislative intention. It is, moreover, obvious that if it had been the intention of the Legislature that the issuing of a commission should be at the discretion of the bishop, nothing would have been easier than to say so, as has been done in the Public Worship Act. By placing the words "if he think fit" in an earlier part of the sentence, immediately after the words "it shall be lawful," all ambiguity would have been removed. We proceed to consider the purpose of the statute as a whole. On the purview of it, especially when looked at by the light of the report of the Ecclesiastical Courts Commissioners, which preceded it, and of the preamble, which is confined to the recital that "the manner of proceeding in causes for the correction of clerks required amendment," it appears plain that it has reference, not to the substantive law, but simply to the procedure applicable to a suit against a clerk in crders for an ecclesiastical offence. It leaves the law as to what shall constitute an offence under that law as it stood before. It nowhere professes to abridge or interfere with any existing right of instituting proceedings against a clerk in orders for an ecclesiastical offence. It is the method of proceeding alone with which the statute deals. Thus, by the effect of the 23rd section, it takes from the bishop the power of instituting proceedings by way of inquisition, as was held in the Dean of York's case (2 Q. B. ), and make it necessary for the bishop, if he desires to prosecute ex mero officio, either to issue a commission under sect. 3, if he desires to prosecute the suit in his own court, or to send the cause in the first instance to the metropolitan court by letters of request under sect. 13. And whereas, in a penal suit instituted by a party promoting the office of the judge, leave to promote the office must first have been applied for and obtained in the court of the bishop, and, leave to promote the office of the judge having been obtained, articles would have been at once exhibited and the suit proceeded with a matter generally involving much expense, and sometimes the vexatious harassment of the defendant-the statute, on an accusation of an ecclesiastical offence being brought forward, requires a complaint to be addressed to the bishop himself, and, except in the case just put, where the bishop thinks proper to exercise the power vested in him by the 13th section, aud, dispensing with any preliminary inquiry, sends the cause at once by letters of request to the court of the province, interposes, before the suit can be further prosecuted, a preliminary inquiry as to the facts by means of a commission, on whose report whether a prima facie case for further proceedings has been made out it depends whether the suit shall proceed-an institution analogous to the finding of a grand jury on a bill of indictment. In other respects, when the commissioners have reported that there is primâ fucie ground for further proceedings, the jurisdiction of the bishop remains very much as it was before, except that he may have to exercise the functions of a judge himself, instead of the cause being tried before his appointed judge. If the party admits the truth

secution of penal suits in the Ecclesiastica! Courts, and which had been strikingly exemplified in certain recent suits which had caused considerable scandal, recommended that the proceedings in the prosecution of offences against clerks in orders should be transferred to the bishop. But they further proposed as part of their scheme, as a protection against vexatious suits, that there should be a preliminary inquiry on oath before the bishop, with a view to his allowing or disallowing the suit to proceed, with, in case of his disallowing it, an appeal to the archbishop. The first part of this recommendation was adopted, but not the remainder. It was not till some years afterwards that-in 1840the Government carried through Parliament the Church Discipline Act, in which, for the preliminary hearing before the bishop recommended by the commissioners, was substituted, the commission to be appointed under sect. 3, by whose report the bishop, except where he chose at once to institute proceedings by letters of request, was to be guided as to allowing the suit to proceed. We see nothing in the circumstances under which this statute was passed to lead us to think that it was intended to do more than to afford the accused clerk the protection of the preliminary inquiry by the commission. For the discretion proposed by the report of the Ecclesiastical Commissionersto be given to the bishop to be exercised, it must be remembered, after inquiry on oath-was substituted the inquiry by the commission, upon whose decision the further prosecution of the suit was to depend. It is also, perhaps, not altogether beside the question to observe that the suits to which the commissioners were referring were for the most part suits against clergymen for immorality. The movement in the Church with respect to doctrine and ritual of a Roman Catholic tendency had not then as yet arisen, and it may well be doubted whether, if that movement could have been foreseen, the Legislature would have placed any additional restraint on the right of parishioners to bring innovations of such a nature to the test of legal decision. Far, therefore, from affording any proof of the intention of the Legislature to give an absolute and unfettered discretion to the bishop, the prior state of the law and the origin of the statute bave rather a contrary tendency. But, instead of speculating on the legislative intention by reference to extraneous circumstances, we think it safer to found our view on the internal evidence afforded by the statute itself. Now, finding nothing in the enactments or language of the 3rd 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 other 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 had ascribed to them. With this rule before us, we do not deem ourselves called upon to enter into the subject of the inconveniences on which the Lord Bishop dwelt in his argument as likely to result from withholding from a bishop the free exercise of his discretion. These considerations, if well founded, might be well worthy the attention of the Legislature, but they cannot prevail against the Act as it stands. Moreover, it might be thought that any such inconven ences would be outweighed by the object to which so much legis

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lation has been directed-namely, the maintenance of uniformity of doctrine and ritual in the Church. It should be observed that this construction of the statute will not take from the bishop the discretion which the judge previously exercised of judging whether the facts complained of constitute an ecclesiastical offence or not. For, as we have said, it is only to complaints of such offences that the Act relates; and the constitution of the commission, one member of which must be the bishop's officer, and the rest are to be of his own selection, will insure a careful consideration of the case, and protect clergymen against frivolous and vexatious charges. When it is said on the part of the bishop that if he is not invested with the discretionary power for which he contends he must issue a commission in every case in which it is applied for, no matter how frivolous or vexations the proceeding may be, the answer is that no such consequence will follow; for if the application be of the character alluded to, this court, in the exercise of its discretion, would refuse to issue a mandumus. And that this court has the right to exercise such discretion cannot be doubted. (See Rex v. The Bishop of Chester, 1, T. R. Rep. 396403, and Reg. v. The Bishop of Chichester, 2 E. & E. 209-223). On the whole, therefore, the only conclusion at which we can arrive is that a duty is here cast upon the bishop, where complaint is made of that which constitutes in a clerk in orders an offence against the ecclesiascal law, of issuing a commission, unless he thinks proper--and herein he undoubtedly has a discretion-to send the case at once by letters of request to the provincial court. The view we take of the enactment in question is confirmed by the opinion of the late Dr. Lushington, we need not say a great authority in all matters of ecclesiastical law. His opinion on this point appears from a report of a case of Ditcher v. Denison, a proceeding against the Dean of Taunton, in which Dr. Lushington acted as assessor to the Archbishop of Canterbury, and which was cited by Dr. Stephens on an application to this court for a mandamus to the Bishop of London in the case of Mr. Bennett. Referring to the 3rd section of the Act, Dr. Lushington there says: "It is perfectly clear that if a bishop under this statute thinks fit, he has a discretion which he is entitled to exercise whether he will himself of his own mere motion direct proceedings to be commenced. is not so with reference to an application made to the bishop, and for various reasons. If it were su, the ancient law of the Church would have been subverted by this statute, which there was no intention to do." Having cited the judgments of Lord Stowel and Sir John Nicholl with respect to the former state of the law, Dr. Lushington proceeds: "What would be the consequence, if the archbishop or bishop had a purely discretionary power to order the commencement of the proceedings according to his own judgment, or, I might also say, according to his fancy? Why, in every bishopric within a province or within the whole kingdom of England, it would rest entirely in the power of a single bishop either to permit a prosecution against any ecclesiastic for any alleged unsound doctrine or immoral conduct, or, according to his own mere opinion, he might prevent any discussion taking place and any charge, how ever serious, from being considered. The consequences of which would be that the uniformity

It