was on the ground, and while the act of rebuilding was going on? It was impossible that the answer to those questions could be either that these things were illegally done, or that the Tower and the other buildings had lost their original sacred character acquired by virtue of the prior consecration. Another question was put to the learned Counsel: whether there was any form given, or whether any instance could be cited, of a partial consecration of a Church, i.e., of a portion of the Church? Because the rule being that what has been once consecrated shall not be re-consecrated, the consecration in the present case must be limited entirely to the body of the Church, excluding the Chancel and the Tower. That would be an anomaly of which no example or precedent has been mentioned. Reference was made to a case which occurred before Dr. Lushington in the Court of Arches-the case of Turner v. The Parishioners of Hanwell (1), and words were relied upon as seeming to intimate the opinion of the Judge that in that case the Church had lost entirely its sacred character, and would require to be re-consecrated. The note of this case, which is a very short one, must be accurately looked at for the purpose of seeing what was the nature of the application, and the question which the Court was called upon to decide. The application was by a Parishioner for a Faculty to make a burial-place for himself and his family in the Parish Church, to the exclusion of others. At the time of the application, the note goes on to say, there was no Parish Church, the old Church having been almost entirely taken down, and a new one in the course of rebuilding. Now, an application for a Faculty to make a burial-place is one, the propriety of which it would be impossible to determine until it was ascertained what was the area of the Church, and in what manner the interior of the Church would have to be arranged and disposed of. Dr. Lushington's answer to the application was this: "I cannot grant such a Faculty. How can I grant a Faculty for a Church not built?" And the answer appears to us to have been a very conclusive one to that application. (1) 1 Notes of Cases, 368. J. C. 1866 PARKER V. LEACH. J. C. 1866 PARKER V. LEACH. Then words are attributed to the learned Judge which could hardly have been used by him as they are here reported; but if they were so used, they were obiter dicta, not necessary for the case before him. He is reported to have said, "If the altar has been taken down, there must be a re-consecration, as my juris liction depends entirely ratione loci." If the learned Judge used those words, it is quite clear he must have borrowed them from the equivalent expressions which are found in John de Burgh and other writers at a period anterior to the Reformation, and intended to apply wholly to Roman Catholic Churches. In a Roman Catholic Church there is an altar, or place where the Priest offers sacrifice. In a Protestant Church there is no altar, in the same sense; but there is a Communion Table on which bread and wine are placed, that the Parishioners may come round it to partake of the Sacrament-the Supper of Our Lord. It is impossible to derive from language applicable to a Roman Catholic altar a conclusion of law applicable to a Protestant Church, which conclusion cannot be drawn unless you hold the Communion Table to be in all respects equivalent to the altar of a Roman Catholic Church. The note afterwards goes on to say that the motion was renewed subsequently; and "the Church having been rebuilt and consecrated, the Faculty was granted." It is impossible to tell (if it be correct that there was a re-consecration of the Church) what were the circumstances which induced the supposed necessity for that re-consecration. We cannot accept the language as amounting to a judicial determination that when, in the repair of a Church, a new Communion Table is put in the place of an old one, the Church must be re-consecrated. But that brings us back to the inquiry (which is one of fact), has this Church been rebuilt in the sense in which the word rebuilding must be taken to be used, whenever reference is made to the re-consecration of a Church that has been rebuilt? We repeat that this was not the rebuilding of an entire Church, but was the renewal of a portion only; that it was done under the authority of the Diocesan as matter of reparation, and not of rebuilding, and that there remained untouched an important portion of the original consecrated structure, in which the offices of a Parish Church still continued, without interruption, to be performed. Upon these grounds, therefore, their Lordships act; and confining their decision to the objection to jurisdiction, they found it upon the fact that there was no rebuilding of this Church, that it is not a new Church, but part of an old Church, with new buildings introduced into it by way of repair; and finding this was done by the authority of the Diocesan, under a legal Faculty for the purpose, they are of opinion that the Church never ceased to be a Parish Church so as to require re-consecration, but remained subject to the authority of the Diocesan. They decide, therefore, that the protest against the jurisdiction in the Court below was rightly and properly overruled. The point remains upon the nature of the case, as stated by the Respondent in the libel. Their Lordships have no doubt, from the manner in which the title of the Respondent is pleaded in the libel, that it will, when it is substantiated, give him in law a good right to the enjoyment of this pew. It is a pew in the Chancel, which legally may belong to a person in respect of the ownership of a house, or which may belong to a lay Rector; it is very different from a pew in the body of the Church, which can only be acquired by virtue of a Faculty, or by virtue of immemorial possession, i.e., by prescription, which is founded on the notion of there having originally been a Faculty. Their Lordships think, therefore, there would be no weight in the objection made in point of law, even if it were at present capable of being raised by the Appellant, from the course which was taken in the Court below; but we find that no such point was raised in the Court below; no objection on that ground was urged upon the Judge in the Court below; the only question which was argued there was the question which is raised by the plea of the Appellant, viz., the plea alleging want of jurisdiction, which, we think was properly overruled. We cannot imagine anything more dangerous or more deplorable than to come to the conclusion which the reverend Appellant, who has for three years been the Incumbent of this Church, seems not to be reluctant to arrive at, viz., that this fabric has been for the last forty years an unconsecrated place, in which the rites of the J. C. 1866 PARKER v. LEACH. J. C. 1866 PARKER v. LEACH. Church have not been duly performed,-in which, therefore, all that has been done would, in all probability, be legally good for nothing; notwithstanding that successive Diocesans, notwithstanding that all anterior Incumbents, notwithstanding that the whole of the Parishioners have been led to believe, and have believed, that the Church needed no re-consecration; that when it was repaired it could be reoccupied and restored to its original purposes without the necessity of that solemnity. We are happily able to arrive, without difficulty, at the conclusion that there was no need of such a ceremony. We regret that such a question should have been raised by the Appellant, and we shall advise Her Majesty to reject his appeal, and condemn him in costs. Proctors for the Appellant: John & J. H. Bayford. Dominica, Legislative Assembly of─Power of punishing contempt-Commitment, Form of warrant-Action against Speaker and Members for false imprisonment-Pleas-Justification. The Legislative Assembly of Dominica does not possess the power of punishing a contempt, though committed in its presence and by one of its Members; such authority does not belong to a Colonial House of Assembly by analogy to the lex et consuetudo Parliamenti, which is inherent in the two Houses of Parliament in the United Kingdom, or to a Court of Justice, which is a Court of Record: a Colonial House of Assembly having no judicial functions. Where, therefore, a Member of the Lower House of Assembly of Dominica, who had been taken into custody by the Serjeant-at-Arms, and committed to * Present :-LORD WESTBURY, SIR JAMES WILLIAM COLVILE, and SIR EDWARD VAUGHAN WILLIAMS. J. C. 1866 DOYLE the common gaol, by virtue of the Speaker's warrants, for a contempt committed The cases of Kielley v. Carson (1) and Fenton v. Hampton (2) decide con- Semble, The Speaker's warrants having been issued by virtue of an alleged authority which, if it existed, was a limited one, ought to have shewn, on the face of them, that the contempt was committed in the presence of the House, and so fell within the limits of the authority assumed. THIS HIS was an appeal arising out of an action of trespass, for assault and imprisonment, brought by the Respondent, a Member of the House of Assembly of Dominica against the Appellant, the Speaker, and ten Members of the same House. The declaration contained three counts. The first for assaulting the Plaintiff, on the 28th of May, 1863, and seizing and laying hold of him, and forcing and compelling him to go through divers public streets to the common gaol, and there imprisoning him, without any probable cause, for three days; the second was for an assault and false imprisonment, without reasonable cause, for three days; and the third, for a common assault. To this action the Defendants pleaded:-First, the general issue to the whole declaration. Secondly, as to the first count, to the effect, that at the time mentioned in the declaration, the Defendant, Doyle, was Speaker, and the other Defendants, with the Plaintiff, were Members of the Lower House of Assembly of the Island. That on the day in question there was duly had and holden a meeting of the Lower House of Assembly, consisting of the Defendants, the Plaintiff, and a Mr. Dupigny. That at such meeting the Plaintiff, having already spoken by way of objection to a motion, and amendment thereon made by other Members, proceeded to further debate on his objection, contrary to the established rules and practice of the House, whereupon he was called to order by the Speaker. That, nevertheless, the (1) 4 Moore's P. C. Cases, 63. (2) 11 Moore's P. C. Cases, 347. V. |