1843. April 26th. SANDERS against HEAD. and to the statutes 2 & 3 Edw. 6, 1 Eliz. c. 2, and 13 & 14 Car. 2, c. 4, and Caudrey's case (a). They pressed for a sentence of deprivation against Mr. Head. Queen's Advocate for Mr. Head. The defendant has been most vexatiously treated in this case; the Articles contain no intimation of the particular law or canon to be relied on in support of them; this mode of pleading is contrary to all established practice. In Newberry v. Goodwin (b), Sir J. Nicholl says, "The two first Articles plead the law upon the subject, the canons, and the statute;" clearly then, according to that learned Judge, it is incumbent on the promoter of the office to specify the statute or canon on which he relies for establishing the charge contained in the Articles. In the case of The King's Proctor v. Stone (c), in Cox v. Gooday (d), and in Mastin v. Escott (e), the particular statute or canon said to have been infringed or violated was set forth in the Articles, and the defendants were not, as in this case, compelled blindly to address themselves in defence to the charge; the particular law to be urged against them was specified at the very commencement of the proceedings. The Book of Common Prayer, which Mr. Head is charged with having depraved, is the Book of Prayer now in use, established by the Act of Uniformity, A.D. 1662. The Canons, A.D. 1603, cannot refer to the present Book of Prayer, and (a) 5 Coke, 1. (b) 1 Phill. 282. (c) 1 Cons. 424. (e) 2 Curt. 692. there is no subsequent canon relating to the present Book of Prayer. Harding, (same side.)—Mr. Head is charged with the commission of an offence capital in the Ecclesiastical law, and is entitled to have the law strictly weighed, and construed strictly in his favour. The statute of the 1 Eliz. is, as respects Mr. Head, a penal statute, he must be clearly convicted of having preached, declared, or spoken in derogation or depraving of the Book of Common Prayer; it will not be sufficient to shew that Mr. Head is within the spirit of the act, he must be brought within the spirit and the letter. In Fletcher v. Sondes (a), Chief Justice Best says, "The rule requires that all penal laws should be construed strictly, that no cases should be holden to be reached by them, but such as are within both the spirit and letter of such laws. If these rules are violated, the fate of accused persons is decided by the arbitrary discretion of Judges, and not by the express authority of the laws." Mr. Head has not preached, and he has not spoken, anything in derogation of the Book of Common Prayer; then has he declared? The word declare, from its juxtaposition with the words preach and speak, clearly means a declaration by parol, he must have declared by word of mouth. The rule noscitur a sociis applies in the construction of this act, the word declare, placed between the words preach and speak, shews that an oral declaration was intended to be forbidden. Jenkinson v. Thomas (b), Evans 1843. April 26th. SANDERS against HEAD. 1843. April 26th. SANDERS against HEAD. v. Evans (a). By the act of the 14 Geo. 2, c. 1, all persons who should steal sheep, or any other cattle, were deprived of the benefit of clergy. The stealing of any cattle would seem to be comprehended by the general words, any other; but it was found necessary to pass the 15 Geo. 2, c. 34, in order to explain that the first act was meant to extend to all other cattle; until the Legislature specified what cattle were meant to be included, the Judges felt that they could not apply the statute to any other cattle but sheep. The statute of Elizabeth never contemplated the possibility of a clergyman publishing, by printing, anything in derogation of the Book of Prayer; that case was amply provided against in other ways; no person could print any work or letter without being subject to a kind of censorship of the press. Mr. Hallam, in his Constitutional History (b), shews the extreme jealousy with which the diffusion of free inquiry through the press was viewed. That the trade of printing was subject to a sort of peculiar superintendence. That the Council frequently issued proclamations to restrain the importation of books, or to regulate their sale. That it was penal to utter, or to possess, even the most learned works on the Catholic side. That every printer was enjoined to certify his presses to the Stationers' Company, on pain of having them defaced, and of suffering a year's imprisonment. No printer was to print any book, matter, or thing whatsoever, until it should have been first perused and allowed by the Archbishop of Canterbury or the Bishop of London. Every (a) 4 T. R. 224-459. (b) Vol. 1, p. 233. person selling books printed contrary to the intent 1843. of this ordinance, to suffer three months' imprison- April 26th. ment. Can it be wondered at, that the Legislature, in framing the Act of 1 Eliz. should have considered that the offence of declaring by printing was amply provided against by the laws and ordinances then in force, and have contented themselves with providing against verbal heresy or schism? It is well known that, at this period, the clergy were in the habit of meeting and discussing theological subjects; these meetings were called " prophesyings," and were rigourously suppressed in those days. It was for attending one of such assemblies that Archbishop Grindal was suspended; this was probably the declaring " intended to be forbidden by the statute. The reason why the Act of Uniformity did did not impose any new penalty on publishing by printing, is explained by referring to the Act of 13 & 14 Car. 2, c. 33, which by the second section provided for the case of printing; that statute is now expired, and cannot be urged against Mr. Head. 66 66 The above argument will be borne out by reference to statutes in pari materia, in which the word 'print" is used when it was the intention of the Legislature to prohibit that mode of publishing opinions; 25 Hen. 8, c. 22, ss. 8, 9; 26 Hen. 8, c. 13, s. 2; 35 Hen. 8, c. 5; 1 Edw, 6, c. 1, s. 1— c. 12, s. 7; 2 & 3 Edw. 6, c. 1; 5 & 6 Edw. 6, c. 11, s. 2; 1 & 2 Phil. & Mary, c. 10; 1 Eliz. c. 2, s. 4; 5 Eliz. c. 1, s. 10; 13 Eliz. c. 2, s. 2; 23 Eliz. c. 2; 35 Eliz. c. 1, s. 1. The Court will not visit Mr. Head with the SANDERS against HEAD. 1843. April 26th. SANDERS against HEAD. June 15th. extreme punishment of deprivation; the statute itself makes a distinction between first and second offences. The Court, moreover, will distinguish between an offence by speaking in derogation of some great doctrine of universal, or even of Anglican reception, and against a Liturgy, which may be altered, which may be termed a "thing indifferent." The preface to the Prayer-Book, itself part and parcel of the statute of Charles 2, notices this. It says, "The particular forms of divine worship, and the rites and ceremonies appointed to be used therein, being things in their own nature, indifferent, and alterable, and so acknowledged; it is but reasonable, that upon weighty and important considerations, according to the various exigency of times and occasions, changes and alterations should be made therein." JUDGMENT, SIR HERBERT JENNER FUST. This is a proceeding by Articles, against the Rev. Henry Erskine Head, a clerk in holy orders of the United Church of England and Ireland, rector of the Rectory and Parish Church of Feniton, in the county of Devon, in the diocese of Exeter, and in the province of Canterbury. This proceeding is commenced in this Court in virtue of letters of request, from the Bishop of Exeter, which have been presented under the provisions of the statute passed during the 3rd and 4th years of the reign of her present Majesty, (c. 86,) entitled "An Act for better Enforcing Church Discipline." On these letters being presented and accepted, a decree |