The Sun.
London, England, 1824-07-20 00:00:00

DOCTORS' COMMONS.

In the COURT of PECULIARS of His Grace the ARCH-
BISHOP of CANTERBURY.
(On the 12th qf July, 1824, in Trinity Term.)
Before the Right Hon. Sir Joiew NICHOLL Knight, Doctor
of Laws, &e. Dean of the Arches, and Judge of the said
Court.
TILE OFFICE OF TILE JUDGE PROMOTED BY PALMER
AGAINST TIJOU. •
SENTENCE.
Sir Jonw Nre woe r.—" The Court has to express its regret
that a recommendation which it threw out at the hearing of the
former cause • has not been attended in respect to this, with
the success that ie could have wished—in restoring harmony
to this parish of St. Mary, Newington, by the settlement of
these causes out of Court ; and the Court is now driven, there-
fore, to the painful necessity of giving the best judgment it can
exercise upon a review of all the circumstances of the pre.
sent case.
The present proceeding, then, by Mr. Palmer against Mr.
Tijou, originates in the same transactions with the former cause,
which was likewise one of the Judge's office —promoted by the
same gentleman, Mr. Palmer, against a Mr. RofFey. And in
that former cause, this Court having noticed, pretty much at
length, the general circumstances of the transaction,--and hav-
ing stated the law applying to the subject, it will not be neces-
sary on the present occasion that it should repeat those prelimi-
, nary observations which it might otherwise be very proper now
to offer.
It may, howeVer, be requisite fur me at preient to state that
in that Ma of Palmer and Roffcy, it appeared that at the
election of Churchwardens for the parish of Newington, and
while a poll was going forward in the Church for that election,
a violent quarrel took place between Mr. Roffey, one of the
Churchwardens, and 'Mr. Hurcombe a parishioner, which
quarrel continued at the polling table for a considerable length
of time ; the reproachtul words " coward" on one side, and
" informer" on the other, being repeatedly passed and inter.
changed between these parties so quarrelling. Which of the
two began this altercation or which of them was the more to
blame in the course of it, does not (I think) very distinctly ap.
pear. But certain it ix that, they had both grossly violated the
law which exists in this country, for preserving the sanctity
and decorum of such a place. Now this quarrel was followed
by one of a still more violent and shameful nature, which took
place in the north aisle of the Church, the majority of the per.
sons who were then in the Church being attracted to that part
of it by the disturbance which prevailed there. But it wan after
the commencement of such disturbance in the north aisle, anti
during its continuance, that the. offence of brawling, which is
charged against Mr. Tijou, is alleged to have been committed.
—He was not at all engaged in the affray that originally led to
that disturbance, nor was he present, as it appears, when it be.
gam Some of the witnesses have proved that during the period
in which such disturbance was ping forward, one of the by.
standers called out to the constables to take, and a constable ac-
tually had seized and taken into custody Roffey, the Church.
warden, who had been appointed by the Rector.
Now, stop ping here fora moment, I think it is hardly proper
for the Court, in its judicial capacity, and as being, also, the
ordinary of this parish, to pass over a misapprehension
that seems to prevail among the parishioners of this parish
with respect to the d ides and authority of their several officers.
Most of the persons present on this occasion seem to have con-
sidered that there was nothing special whatever that attached ,
Itself,—nothing peculiar is the character that belonged to the
place which they were then assembled in. Whether it was a
Church or a tavern, or a polling-booth, that they were in would
appear to have made no sort of elifference to them. There was
a great disturbance, the constable is called for ;—the cry is,
" turn him out," (for that is the cry which is raised with re-
gard to Roffey)—and one of the constables, of tire name of
Wright, proceeds to execute his office and lays hold of Roffey,
one of the Churchwardens ;—and another Constable, Passey,
thinks it to be a pint of his duty to lay hold of Tijou, who is
the sidesman of Itoffey, the Churchwarden appointed by the
Rector. Now, it is to be recolleeted, that the order and go.
vernment of the Church and of parish *Rite transacted therein
are, in the first instance at least, under the operation of Eccle.
siastical haw,and the supervision of Ecclesiastical Officers. The
Court, indeed, does not mien to say, that if an actual breach
of the King's peace takes 'place in the Church, and the Eccle-
siastical Officers there either neglect anti omit to perform their
duty, or do themselves violate it, the civil authority may not
in such case interfere to preserve it ; and most undoubtedly it
may at once interfere, if called upon, or required so to do by
the Ecclesiastical Officers or authorities. But I apprehend,
that in the first instance it is the duty of the latter to act ;
that the primary authority belongs to the Ecclesiastical Officer
in his Church.
Now, who is that officer ? It is time Churchivardee, with his
sidesman, whir is his assistant. It is their duty, or a part of
it, at least, to attend the performance of public worship in the
Church, in order .to preserve outer and decorum during the
celebration of the service. And indeed it is part of their oath
of office to preserve order during such " celebration of divine
worship." And thus, if they who arc elected to the situation
happen to be persons who dissent from the public worship of
the Church, from motivei ofconscientiousness, they are allowed
to serve the office by sufficient deputy. But, as a general prin.
ciple, it is part of the duty of Churchwarden; to attend and
preserve order in the Church itself. They are, consequently,
protected by law in the execution of that duty, and thnt which
would amount to an assault in another person would not he so
in them. For example: if they take off a man's bat in the
Church, or turn out a person for misconduct—provided they
do so without any unnceeeary violence and in a proper manner,
they will be protected without being liable to the ordinary con-
sequences that another man would be exposed to for acts of this
kind. Of course they can only do so on sufficient cause; but they
(the Chuichwertiens and their sidestnen,)are time parties therefore
whose special duty it is to maintain order in the sacred place.
How for that consideration may aggravate the offence of
the
present defendant I am not now considering. I am noticing
these principles of law in order to correct the erroneous impres-
sion which seems to prevail in respect of them in the particular
parish in question. For I find that in this transaction the
constables are called for in the first instance; and with a great
degree of alacrity they rush forward to the performance of their
chines; and in one case, without being called open at nil to do
so. Paitsey (I dare say without any impression that he was
doing wrong on the occasion)seizes Tijou;—whereas Tijou, as
sidesman of the Churchwarden, had plainly a right, and it was
indeed to size Passe), and turn him out of the Church.
ifime,Pitli3ty
siseydtiltie constable, was acting improperly. Anti certainly
it ought to be a very strong case to justify the constable in invert-
ing the order of authority, and taking into custody or assisting
to take both the Churchwarden and his sidesman, although
undoubtedly there may be circumstances which would justify
an interposition of this sort The Court, I say, mentions
these matters not as very much bearing on the present case ;
but that time rights and duties of these respective officers may
henceforth he properly understood, anti more generally known
in this Parish of Newington.
And in the present case, there are two questions that mainly
present themselves thr consideration ; the first is, whether the
charges which have been brought against Mr. Tijou are mufti-
ciently established ? and, in the next place, whether there are
any grounds for mitigating die costs, supposing that the proofs
in the case are sufficient ?
Now, upon a mature consideration of the whole of the evie
dence in the cause, I ant decidedly of opinion—(and at this
hour of the they I shall not travel in detail through the evidence
which has been produced, and all of which I have very care-
fully read,)--I am ofopinion, I say, upon the whole of this
case, that time articles state sonic of the facts rather in a more
aggravated point of view than the witnesses, taken together,
prove timeso facts ; but although there are considerable incon.
gruitics and inconsistencies in the depositions of some of the
witnesses, I ant of opinion that the charge is proved against
'Tijou—though, taking all the circumstances together, I can-
not think that it is one of a very aggravated nature. For I very
much agree with the Learned Counsel who spoke second in
defence, that the character °ile transaction must, to a con-
siderable N
extent, be ascertained and determined by time nature
of the proceeding which was going on at the time. It seems
that there was it great disturbance in the North Aisle of this
Church. Holley had been actually seized and taken into MM.
Indy by the constable. And at this point of time Tijou was not
even in the church. Ile had been at a neighbouring tavern, as it is
stated by the prosecutor's own witnesses. Ile was afterwards
walking with a friend in time church-yard, when he hears a
noise, and understanding that there was great confusion pre.
veiling,, he goes into the church where he finds this great dis-
turbance and uproar. He being a strong powerful man,
pushes hi:t way through the crowd, and I really don't know
how it is poseible that this could be done without sonic contd.
clerable struggle ; for it is a great exertion and not a very easy
matter to find a passage on such occasions. However, he forces
his way through the crowd,tn order to get at the spot where the
immediate disturbance takes place ; anti I think lie must noon
have discovered that there was a struggle between lioffil the
Churchwarden, and Wright the Constable.
Now, if the Court could be satisfied that he went there merely
to perform his duty as sidesman (for to go there, strictly speak-
ing, was part of his duty as sidesman), that he went merely for
the purpose of aiding and assisting hie churchwarden (and it
was part of his oath faithfully to assist that officer) ; or if he
went there' merely with a view to defend those who were op-
,—that might be almost a justification of his conduct in
theircsdfierst instance, and a very great extenuation of his offence in
the latter. But I cannot say, that I can arrive at that great
stretch of candour which would lead me to suppose that he

Palmer v. Roffey.

so went there merely for the purpose of performing his duty as
sidesman—to keep order in the church, or to put down any ex-
isting disturbances that were then taking place, or to rescue a
friend whom be supposed to be in danger. But, even if he had
done what he did with the one purpose or the other; if he
had gone in, in the execution and discharge of his office, or
to rescue any person from an act of violence ;—still he- way
bound to do so in a proper and becoming manner. For if his
conduct wAs attended either with improper acts or improper
wonls' that circumstance might still involve him in a violation
of the law.

Now, in this consideration of the subject, which really seems
to me to arrive at once at 2 correct view of it, as far as I have
been able to judge from =training very fully this evidence,
and from attending very carefully to the arguments of Counsel,
I think that Tijou did on this occasion conduct himself in a
manner that does amottnt toe violation of the law; and, there-
fore, that I am bound to consider him as having so done, and
then, consequently, to pronounce him liable to punishment on
that account.

But I must look at this case, at the same time, as one by no
means of an aggravated nature. He was stimulated to the con.
duct which he pursued by the various exciting circumstances
around him, and by the. situation of his friend. The original
brawlers (though that fact does not so fully a pear in this case
as it unquestionably did in the former one) were beyond all
dispute Roffey and this Mr. Hurcombe. hey had kept up
their quarrel' before Tijou entered for hours together. They
were the great offenders and the authors of the whole of' this
disgraceful disturbance; and not only Tijou himself, but a
great number even of the bpstandersi were incited, in conse-
quence, to do something that was more (undoubtedly) than
was proper, considering the place •in which they were, but
which may be, in a great degree, explained and excused by
considering the circumstances of their situation. Now what,
after this, takes place in the north aisle? Tijou goes to the
spot where this transaction between him and Bishop takes
place. * But, according to Bishop's own account of the mat-
ter, it was he who first put his hand on Tijau. It is true that
Bishop asserts, and I dare say, that he does so with perfect
truth, that he did so is a pacificator. But still, though he
might mean to be in this affair a.peace-maker, the Court must
look at the manner in which Tijou would receive his advances
to that effiv. ; and supposing that Mr. Bishop put his hand
thus on Tijou's shoulder, it was an act which might very
possibly have had the effect of removing Tijou from
the situation he was standing in at the time; for he
was standing on a bench, and we may fairly suppose
that being intent on what was passing, and unprepared
for any thing else, a very slight touch of his head or shoulder
would easily displace or remove him. Now, if the fact was so,
he would immediately slip down, and thereby become liable
to suffer all those untortunate consequences that seem to have
ensued. I think it is no proof at all of any violently outrageous
conduct that Tijou, not being aware of Bishop's intention,
struck or caught hold of him. The blow does not seem to have
been a very severe one; but however, of whatsoever sort
it was, Tijou, according to Mr. Bishop's own statement, after-
wards said he was sorry for it,—not thereby, as I should under.
stand the matter, admitting that he was the aggressor upon
this occasion, for he supposed, in the first instance, that Mr.
Bishop had been the aggressor,—but that he meant he was
exceedingly sorry for what had happened under such circum.
stances and misapprehension, and finally they shook halide to-
gether. But what then does Passey the constable do ? With-
out being called upon, for what appears, ay any person, he
at once darts upon Tijou and says Ile will take him into custody.
No doubt this individual, Passe)+, may have been a good deal
agitated at the time, and may not • precisely recollect the cir-
cumstances which took place. Whether the witnesses on the
other side are tight in their account of the matter, does not ap-
pear exactly, nor is this extraordinary; for I quite agree on
that oint with Dr. Lushington, who observed in his speech,
that In a transaction that was conducted amidst so ;much noise
and confusion, the Court cannot expect witnesses to speak
accurately to very minute circumstances. It would seem that
Tijou said, on being touched, " What do you mean by that ?"
and then die party was pulled or 'thrown down. This was a
very improper act certainly, and snore especially in such a place :
But what the Court has to consider is, whether, looking to the
circumstances themselves of this part of the transaction, and
to those which had just taken place in the North Aisle,
this was such an offence as the Promoter of the Judge's
office in this cause was properly called on to prosecute ? k'Or
that is the way in which the matter must bear upon the ques.
tion of costs, to which I stall come presently.
1 do quite concur also with Counsel, the Learned Counsel for
the defendant, that the forgiveness of the party injured, Mr.
Bishop I mean, and their shaking hands, was a circumstance
that dud not 'render it at all necessary for a public prosecutor,
acting for the maintenance of decency and order in this place,
to fpund all these Proceedings against this defendant. Un-
doubtedly if this was such a case as did render them necessary,
the public proaecutor (as we may consider the present promoter)
was justified in so proceeding against this party. But I must
consider whether all the circumstances of the case before me,
taken together, do entitle this party . to the payment orb is fullcosts. It must hti observed, in the first place that in general where
an offence ham been committed, *tack it has been necessary fur
the party committing it to defend, the'expenees necessarily Incur.
red in prosecuting that offence and in bringing theparty to punish-
, :tient, are, by the general rule of this Court, to be paid by the
party whose own misconduct has rendered proceedings neces-
sary. But this is not matter of course, as to that party pro.
cceded against, who may substantiate his defence; and still
less is it matter of course as to the payment of costs. The Cottrt
may mitigate them according to its own discretion, for the mat-
ter of costs is held in these bourts to be matter of discretion.—
But the Court, in a question of such extreme importance, would
go only upon a very full consideration of all the circumstances
of a case; and in governing its discretion it would maturely
consider, as it has maturely considered in this instance, the con-
duct of both the parties • and upon the result of this consider-
ation, its judgment webe founded as to how fur the defendant
ought to pay, and how far the promoter is entitled to receive the
whole costs.

In this case, two prosecutions have been instituted by the
romoter, Mr. Palmer ; the one against Itoffey (the Rector's
Warden), the other against Tijou,-Roffey'S sidesman. Roffey,
it appeared in the first of these causes, had been guilty of quar-
relling for an hour together in the Church ; first, at tho polling
table, and afterwards in the north aisle ; and the Court did
not think there was any ground in that respect to excuse .his
brawling or to extenuate his conduct ; and therefore held that
he was liable to the full costs. By the punishment of Roffey,
moreover it appeared that the sanctity of the place would be
protected and vindicated; that the law on the subject would be
ascertained and made known, and that an example would be
held out to the parishioners, lc hich might have its full effect in
preventing the recurrence of these scenes in future. If in the
transaction there was another person engaged, whose conduct
was scarcely less offensive, noisy, and violent than Roffey's,—
or a person whose conduct was distinguished by scarcely a shade
of difference, who had been " in part delictu" with ftoffey
or nearly so;—it would have been invidious, to be sure, to se-
lect one only of two such parties, for prosecution. But I cer-
tainly think that Tijou was not the person who could be said
to have been so "in pari delictu." this person was, in fact,
not at all connected first with the affair which had taken place
between the two original offenders, Bailey and Hurcombe. It
is very true that Mr. Palmer was the public officer of this pa-
rish. It was his duty to maintain order; and at his return,for he
was not present when the affair occurred, he instituted proceed.
ings against Roffey; and lie acted very properly in doing so.
duty, but he was encouraged and required
to wtoaksonotht
aotnlsytelpi is
bya
meeting of the parishioners in Vestry
assembled. Yet, I cannot go along with Mr. Palmer's Coun.
sel in the position which they have argued to me, that he was
bound to obey the order of such Vestry. He was to exercise
his own discretion and judgment in the matter. He, I say, was
to exercise his own discretion : and where a measure of this
kind is a proper one, undoubtedly the Court is always disposol
to go as far as it tan to protect public officers in the faithful
and impartial discharge, o£ their ecclesiastical .duties, even if
there should be some degree of unintentional error in theitpro-
ceedings. B
ut it is also the duty of this Court to protectindi-
viduals against the abuse of any public authority of this nature,
pu of a
and still more, rrom being harassed b other individuals who i
may be able to wield theblic purse
parish against them.
From the evidence adduced, as I have before observed, in these
two causes, the two principal offenders wereindisputably Rae),
and Hurcombe. Ilurcombe is not yet on his defence, but the
whole of the evidence I speak of does go to whew that he had, for
two or three hours together, been engaged in a quarrel in this
church. Even if Roffey was the greater offender of the two, and
t here was a necessity for more than one of these prosecutors, still I .
think that the second prosecution ought to have been against
the individual I have mentioned. Uut what is the conduct of
the Vestry ? They order a prosecution ; (and Mr. Palmer acts
in obedience to that order;) they direct a prosecution against
Tijou, who at worst was a subordinate offender only ; and they
order none as against Hurcombe, for so I collect. On the con.
trury, Iltircombe is brought forward as a witness in the cause
against these other parties; and not only so, but he is the agent
of the party prosecuting. For I observe from the answers of
more than one of the witnesses, thist application for the purposes
of this cause has been made to them by Hurcombe, and that
they were by Ilurcombe sent to the office of the Proctor. Now
really the Court is extremely unwilling to enter at all into the
disputes of this Parish ; yet looking impartially at the subject,
the Court is bound to consider whether this prosecution against
Tijou can have been instituted with a proper and legitimate
object ? It is not instituted in order to assert the sanctity of 4
place consecrated and set apart for the worship of the Supreme
13eing ; for that object would have been atchieved equally if

* See Bishop's Deposition.
Mr. Pahuer the promoter.

they had proceeded against the other party only. It is quite
impossible on the other hand to correct all those who have, on
this occasion, offended against public decorum. Now this was
not an offence in the present case which imperatively called for
prosecution by the public officer, who, acting fairly and im-
partially, proceeds, as I believe Mr. Palmer does in obedience
to other parties. It is in obedience to the Vestry that this pro-
secutiUn is brought, it is said •by Mr. Palmer; but he must
look to them. Certainly I cannot conceive that this has been
done in the impartial discharge of a public duty, so as to found
upon his part a claim on this Court, in the exercise of its dis-
cretion, to give full costs on the present occasion. Looking
therefore to what has been the conduct of these parties, and to
all the circumstances of this transaction, I think it is a case for
mitigated costs. _ _

And as Tijou will have his own costs to pay in the cause
(which costs have been made pretty heavy, fur I believe there
have been thirteen witnesses examined in the case, and to ten
at' them interrogatories have been administered), and asAlr.
Palmer will probably he indemnified for his costs, (though the
Court can know nothing about that order at' Vestry, under
which he is said to be proceeding), I shall suspend 'Mr. Tijou
train entrance into the Church, " ab ingressu Ecclesia3" as we
term it, for the space ofone week : and I shall further condemn
Mr. Tijou in the sum of 301. " in nomine 'expe.nsarum."
Has that Bill been taxed yet, in the other cause, Mr.
Registrar ?

itEcisTums.—lt has been brought in, Sir, by Mr.
Felie Slade, who now presents his bill of costs, which has been
taxed.

Sir Joxit Nicirox.r.—At how much ?
REGISTItAII—I now repeat it, at 289/. 15..
Sir Jottx Ntctrotr.—Then before you take the sentence
down, I Khali make the sum to be allotted " nominc expensa.
rum," 501.

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