scribed, or the executive government who commissioned the defendants to purchase the ships? Not, surely, the former; there was no privity between them and the defendants. The people by whom the money was raised trusted the then existing government with the funds, leaving it to them to purchase the ships. The answer represents the defendants as having acted on behalf of the people, that is to say, the whole people of Sicily, and by their direction communicated through the then government. Now, it is absurd to speak of a whole people, as cestuis que trust, to be made parties to a suit in this Court. If they can be treated as cestuis que trust, it is obviously impossible that they should appear or be represented here otherwise than by their government. Have the defendants, then, a right to say that the persons who carried on the government when the money was remitted to England, are their cestuis que trust, and so that, in their absence, they, as being merely their agents, ought not to be called on to produce the documents? I think not. Every government, in its dealings with others, necessarily partakes, in many respects, of the character of a corporation. It must, of necessity, be treated as a body having perpetual succession. It would not be represented by all or any of the individuals of whom it is, from time to time, composed. The answer shows, with respect to the provisional government, that, during the time of the transactions in question, material changes took place as to the persons who from time to time exercised its func tions. It is impossible to say that the defendants ever were agents of all or any of the individuals who, from time to time, composed the government. Those who, as constituting the government, stood, if they did stand, in the relation of cestuis que trust, or of principals towards the defendants, ceased to fill that character when they ceased to be members of the government; so that, the executive government being now at an end, either the defendants have ceased to fill the character of trustees or agents at all, or they have become trustees or agents for the plaintiff, as the person now in possession of the supreme authority. The case may be likened to that of a person who had in his hands property entrusted to him by a corporation. If, by the death of all the members of the corporation, or by Act of Parliament, or otherwise, the corporation should come to an end, it surely could not be contended that the party entrusted with the property, could be made responsible to the individuals, or the representatives of the individuals, who constituted the corporation when the trust was created. Reasoning from analogy, I am of opinion

that the defendants are not, in any sense, the agents or trustees of the individuals who composed the government by whom the funds were remitted. If they are trustees or agents at all, they are trustees or agents for the plaintiff, and not for the persons from whom, as constituting the government for the time being, they received the funds. This point, that is to say, the necessity of making co-defendants the persons by whom the money was remitted to England, was raised by the demurrer for want of parties. The demurrer was overruled by the late ViceChancellor, (a) and that decision would of itself be decisive of this branch of the defendants' objection, unless by the answer some new facts are stated, showing the necessity of making parties persons who were not so shown by the bill. I think, for the reasons I have shortly adverted to, that, in this respect, there is no material difference between the bill and the answer.

The second point is one on which I have not been able to discover any authority. But, on principle, I think the objection is untenable. The defendants, it will be observed, say that the production of the documents might subject certain persons in Sicily, as well as themselves, to high penal consequences. It is hardly necessary to say that, so far as the objection relates to the consequences which the dis. covery might entail on others, it would not hold even if the penalties would be incurred in this country. The privilege is confined to penal consequences likely to be occasioned to the party himself: nemo tenetur seipsum prodere; but there is no privilege against disclosing matter within the knowledge of the party, merely because it might subject other persons to punishment. Can the defendants then object to answer that which might subject themselves to penal consequences if they should go to Sicily? I think not. The rule relied on by the defendants, is one which exists merely by virtue of our own municipal law, and must, I think, have reference, exclusively, to matters penal by that law: to matters as to which, if disclosed, the judge would be able to say, as matter of law, whether it could or could not entail penal consequences. As, for instance, if a witness were to say: "I decline to answer that question, because it may show that, five years ago, I exercised an office without first taking the oaths," the judge would be able to say, as matter of law: "That cannot subject you to penal consequences by reason of the subsequent Indemnity Acts." So, where an Act of Parliament has passed, in

(a) See above, 1061.

demnifying witnesses from prosecution on account of matters to which their evidence is thought necessary, if a witness, ignorant of the statute, were to object to answer a question, because it might subject him to penalties covered by the statute, the judge would be able to say: "That it is a mistake of the law; you are exposed to no such penalties, and must therefore answer. And very many similar cases may be suggested. But, in respect of penal consequences in a foreign country, this cannot be. No judge can know, as matter of law, what would or would not be penal in a foreign country; and he cannot, therefore, form any judgment as to the force or truth of the objection of a witness, when he declines to answer on such a ground. In the present case, indeed, there will probably be no difficulty in believing that the defendants are speaking quite truly; as the documents may, in all probability, form links in a chain of evidence which might enable the courts in Sicily to convict the defendants of high treason. But, if the principle is once admitted, it must be admitted in all its ramifications. Thus, for instance, in a bill against a firm, some of whom, though resident here, are Spanish subjects, seeking an account of mercantile transactions in Spain, the defendants might refuse to set out an account of their transactions, on account of the deal ings having been (as probably they would have been) to a great extent, contraband, and so tending to subject them to penalties for having infringed the fiscal law of Spain. The case was put, at the bar, of a bill for an account of an opium transaction in China; and instances might be multiplied, to almost any extent, by ascertaining, as matter of fact, what acts, by the laws of any foreign country, are penal, though not so here, and might become the subject of investigation in our courts. The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incuring penal consequences in a foreign country, may extend, furnishes very strong and, to my mind, satisfactory evidence that the objection cannot be sustained.

It is to be observed that, in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated. Now, in the present case, the parties objecting are Sicilian subjects; and so the probability of their returning to Sicily may be great. But, if the objection is once, in such a case, admitted, it is very difficult to say why it should not apply to an Englishman, who, having been in a foreign country and there violated the law (by snuggling for instance), afterwards returns home. He may intend to go abroad again, and then the discovery which he is here called on to make, might, there, subject him to penalties.

I am of opinion, for these reasons, in the absence of all authority on the point, that the rule of protection is confined to what may tend to subject a party to penalties by our own laws; and so that the objection in the present case cannot be sustained. The consequence is, that the plaintiff is entitled to the usual order for production of all the documents.

There is no report of any further pro ceedings, and Mr. Brodie A. Willcox of 28 Portman Square, son of the defendant, the late Mr. Brodie Willcox, states that the Bombay was shortly afterwards handed over to the King of the Two Sicilies, and that the Sicilian envoys were not at all dissatisfied to get rid of her, as under the then existing circumstances in their country, she was a sort of white elephant to them. He does not recollect whether she was handed over by order of the Court, or as one of the conditions of a settlement under which Prince Grunatelli and Scalia were allowed to return to Sicily, and the sequestrations on their property there were removed.

MATERIALS MADE USE OF. The above report is compiled from the reports in 1 Sim. N.S. 301, 322, 19 L.J. Ch. 202, and 20 L. J. Ch. 417; 14 Jur. 163, 751; 15 Jur. 214.

opinions contrary to the true Christian faith and the doctrines of the Church of England, and the Thirty Nine Articles of Religion and the Book of Common Prayer authorized and enjoined by the Act of Uniformity, 13 & 14 Cha. 2. c. 4.; and was therefore an unfit person to be admitted, instituted, and inducted to the said vicarage.(a)

The Bishop having notified the Queen of his refusal by letter to one of her Majesty's Principal Secretaries of State, the Attorney-General commenced an action of Quare impedit against him in the Court of Queen's Bench.

Likewise in Trinity Term, 1848, the Rev. G. C. Gorham commenced, against the Bishop in the Arches Court of Canterbury, a suit of Duplex Querela, in the nature of an appeal (b) from the judgment and determination of the Bishop.

(a) In his affidavit supporting the rule, the Bishop set out that he, as such Bishop as aforesaid, is the Ordinary, and hath full ecclesiastical and spiritual jurisdiction in and over the said vicarage and the vicar thereof for the time being; and full and sole right and authority by law to admit, institute, and induct, each and every person from time to time presented by her Majesty as such patron as aforesaid for admission, &c.; and before such admission to examine the person so presented, and to ascertain the fitness and qualifications of such person for such admission, institution, and induction, with reference as well to his faith and doctrine as to his learning, morals, ability and sufficiency according to the laws ecclesiastical of this realm; and, in the event of finding that the person so presented is unfit or disqualified by reason of his insufficiency in any of the matters aforesaid, then to refuse to admit, institute, or induct such person. The affidavit further stated that, upon such examination, deponent ascertained and determined, according to his conscientious judgment and belief, that the said G. C. Gorham did then hold, maintain, and affirm certain unsound doctrines and opinions contrary to the true Christian faith, and contrary to and inconsistent with the doctrines of the Church of England, the Thirty Nine Articles of Religion, and the Book of Common Prayer, authorized and enjoined by a statute, &c. (Act of Uniformity, 13 & 14 Cha. 2. c. 4.); and, by reason thereof, deponent, as such Bishop, &c., thereupon refused to admit the said G. C. Gorham to the said vicarage, or to institute, induct, or invest him, &c.

(b) "The clerk refused by the Bishop may also have a remedy against him in the Spiritual Court, denominated a Duplex Querela; which is a complaint in the nature of an appeal from the Ordinary to his next immediate superior; as from a Bishop to the Archbishop, or from an Archbishop to the Delegates; and if the Superior Court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant." 3 Bla. Com. 247; and Burn's

Eccl. Law. vol. 2.

The Dean of Arches, having given judg ment, dismissing the suit, the Rev. G. C. Gorham appealed to her Majesty in Council, who referred his petition to the Judicial Committee of the Privy Council. They reported on March 8th, 1850, that the judgment of the Dean of Arches ought to be reversed, (a) and that the Bishop had not shown sufficient cause why the said G. C. Gorham should not be admitted, and that the principal cause ought to be remitted to the Court of Arches, in order that right might be done.

The Queen having approved the report, and ordered it to be carried into execution, the cause was remitted to the Arches Court, and the Official Principal caused the Registrar of the Episcopal Court to be served with a monition to return into the Arches Court the letters patent by which the Rev. G. C. Gorham was presented.

In his affidavit in support of the rule, the Bishop stated that, since the hearing of the said appeal by the Privy Council, he had been advised by counsel that the said G. C. Gorham was not entitled to

(a) See "The Case of the Rev. G. C. Gorham against the Bishop of Exeter as heard and determined before the Judicial Committee. By E. F. Moore, Lond. 1852"; Brodrick and Freemantle's Ecclesiastical Judgments, 64; Brook's Six Judgments of the Privy Council in Ecclesiastical Cases, 7. Part of the headnote there given is as follows:

"It is not for the Court to decide whether opinions are theologically sound or unsound, but whether such opinions are contrary or repugnant to the doctrines which the Church of England by its articles, formularies, and rubrics, requires to be held by its ministers.

"In all cases in which the articles, considered as a test, admit of different interpretations: Held that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something else which the Church has elsewhere allowed or required; and if there be any doctrine on which the articles are silent, or ambiguously expressed, so as to be capable of two meanings: Held that it was intended to leave that doctrine to private judgment, unless the rubrics and formularies clearly and distinctly decide it.

"It is not contrary or repugnant to the declared doctrine of the Church of England, as by law established, to hold that the grace of regeneration does not so necessarily accompany the act of baptism that regeneration invariably takes place in baptism; that the grace may be granted before, in, or after baptism; that baptism is an effectual sign of grace by which God works invisibly in us, but only in such as worthily receive it; that in them alone it has a wholesome effect; and that, without reference to the qualification of the recipient, it is not in itself an effectual sign of grace; and that in no case is regeneration in baptism unconditional."

appeal from the Arches Court to the Queen in Council, and that the appeal and all the proceedings thereon were void, and the judgment of the Arches Court still in force; that he was not aware of this at the time of the hearing, and that he had no opportunity and was not able to protest against the jurisdiction of the Council before or during the

hearing.

in

Sir F. Kelly, in moving for the rule: The Bishop now contends: First, that, a matter touching the Crown, an appeal from the Spiritual Court does not lie to the Queen in Council, but lies to the Upper House of Convocation, and that the dispute as to this presentation is such a matter; secondly, that, although judgment has been given on the appeal, a prohibition still lies.

The first question turns on the provisions 24 Hen. 8. c. 12. and 25 Hen. 8. c. 19., the statutes which provided for the restraint of appeals to Rome (a) 24 Hen. 8. c. 12. 8. 2, after reciting the inconveniences and dangers which have arisen

goes on to enact that all such appeals shall be finally determined within the realm in their proper courts, as follows:"That all causes testamentary, causes of matrimony and divorces, rights of tithes, oblations and obventions (the knowledge whereof by the goodness of princes of this realm, and by the laws and customs of the same, appertaineth to the spiritual jurisdiction of this realm) already commenced," &c., or hereafter coming in contention, debate or question within this realm, or within any of the king's dominions," &c., "whether they concern the King our Sovereign Lord, his heirs and successors, or any other subjects or resiants within the same, of what degree soever they be, shall be from henceforth heard, examined, discussed, clearly, finally, and definitively adjudged and determined within the king's jurisdiction and authority, and not else where, in such Courts spiritual and temporal of the same, as the natures, conditions, and qualities of the cases and matters aforesaid in contention, or hereafter happening in contention, shall require."

Sections 3 and 4 impose penalties for appealing to Rome. Section 5 then

pursue, provoke, or procure any appeal to the See of Rome, and in all other cases of appeals, in or for any of the causes aforesaid, they may and shall from henceforth take, have and use their appeals within this realm, and not elsewhere, in manner and form as hereafter ensueth, and not otherwise."

And this section, and ss. 6, 7, and 8, regulate the course of appeal, according

to the Court in which the suit is commenced, namely, from the Archdeacon's Court to the Bishop's, and from the Bishop's to that of the Archbishop, whose judgment is to be final. By section 8 there is to be no appeal in suits commenced in the Archbishop's Court, except as in this Act is limited; it provides that all suits commenced before any Archbishop

Then section 9 gives an appeal in causes touching the Crown to the Upper House of Convocation

"in case any cause, matter or contention, now depending for the causes before rehearsed, or any of them, or that hereafter shall come in contention for any of the same causes, in any of the aforesaid courts, which hath, doth, shall or may touch the King, his heirs or successors, kings of this realm; that in all and every such said, shall or may appeal from any of the said case or cases the party aggrieved, as before is courts of this realm, where the said matter, now being in contention, or hereafter shall come in contention, touching the King, his heirs, or successors as is aforesaid) shall happen to be ventilate, commenced or begun, to the spiritual prelates and other abbots and priors of the Upper House, assembled and convocate by the King's writ in the Convocation being, or next ensuing within the province or provinces where the same matter of contention is or shall be begun; so that every such appeal be taken by the party grieved within fifteen days," &c.

So that, in causes testamentary, causes of matrimony and divorce, and causes relating to tithes, oblations and obventions, the final resort was to the Archbishop, if the cause did not touch the King; if it did, then to the Upper House of Con

vocation.