ST. RAPHAEL'S, BRISTOL----PROHIBITION ISSUED BY QUEEN'S BENCH IN MACKONOCHIE CASE AGAINST LORD PENZANCE----JUDGMENT REVERSED BY APPELLATE COURT----PROTEST AGAINST THE ACTION OF THE TREASURY IN ASSISTING LORD PENZANCE AT THE PUBLIC EXPENSE----NEW SUIT AGAINST MR. DALE----TRUST FUNDS APPROPRIATED TO THE PROSECUTORS----CLEWER CASE AND THE BISHOP'S POWER OF VETO----JUDGMENT BY THE QUEEN'S BENCH ADVERSE TO THE BISHOP'S "DISCRETION"--JUDGMENT REVERSED BY THE APPELLATE COURT--WOLVERHAMPTON CASE----DEATH OF MRS. TAIT----THE "FUNDAMENTAL PRINCIPLES" OF E. C.U.--MARRIAGE LAW AND DIVORCE----APPOINTMENT OF BISHOPS----MILES PLATTING CASE----DECEASED WIFE'S SISTER BILL----ALTERATION OF PRAYER BOOK.
As the withdrawal of the licence of the Rev. A. H. Ward, of St. Raphael's, Bristol, practically deprived him of an income of about £280 per annum, it was determined at an influential meeting held in Bristol to set on foot a local and special Sustentation Fund in his support. A grant was made to this from the E. C. U. Sustentation Fund, and further help promised, as might be needed.
On June 5, 1878, an application on behalf of Mr. Mackonochie was made to the Court of Queen's Bench for a rule calling upon Lord Penzance to show cause why a prohibition should not issue against his proceeding to enforce his decree of suspension. The rule was argued on June 27 and 28, the Solicitor-General (Sir H. Giffard) and Mr. C. Bowen appearing for Lord Penzance; Dr. Stephens and Mr. Jeune for Mr. Martin; Mr. Charles Q.C., and Dr. Phillimore for Mr. Mackonochie. The rule was made absolute on August 8 by the Lord Chief Justice and Mr. Justice Mellor, Mr. Justice Lush dissenting. The Court declared, not only that the decree of suspension ab officio et beneficio passed on Mr. Mackonochie by Lord Penzance was illegal, but also that similar sentences passed by the Judicial Committee of the Privy Council, in the cases of Mr. Mackonochie and Mr. Purchas were illegal, and that the jurisdiction exercised on these occasions was usurped. The application was to prevent the execution of the sentence of suspension for three years passed by Lord Penzance upon Mr. Mackonochie for disobeying two monitions, dated respectively June 12, 1875, and March 29, 1878, for which disobedience he was declared by Lord Penzance "to have been guilty of contumacy," upon the evidence of affidavits showing continued disobedience. The Court held that both the monition of Sir Robert Phillimore (1875) and that of Lord Penzance (1878), as also the sentence of suspension founded upon them, were ultra vires and bad in law, and arrived at the conclusion--"(1) That a monition in a penal suit, while, if pronounced as a definitive sentence, it carries with it no ulterior consequences, cannot be appended to a definitive sentence awarding a specific punishment, so as to prolong and enlarge the jurisdiction of the Court, and to warrant any further proceedings on a repetition of the offence, as for contumacy; (2) That even if a monition could be so pronounced, disobedience would entail no other punishment than is provided by the 53rd of George III. [viz., imprisonment]. Consequently, that suspension is inapplicable to such a case." The Court also held that the Court of Arches had taken upon itself "to alter the course of its procedure, and to create a new offence," besides applying to contumacy "a punishment which could not, according to the ecclesiastical law,... be applied to a case of contumacy."
Lord Penzance, holding the prohibition to be an "invasion" of his own judicial independence, endeavoured to obtain a reversal of the judgment; and, the Treasury having consented to defray the costs of an appeal, the case was argued, during eight days, before Lord Coleridge and the Lords Justices James, Brett, Cotton, and Thesiger.
On June 28, 1879, the judgment of the Appellate Court was delivered. The judgment of the Queen's Bench was reversed by the judgments of Lord Coleridge, Lords Justices James and Thesiger, in opposition to those of Lords Justices Cotton and Brett. Upon this even balance of opinions--four judges holding one opinion, and four another--the President and Council felt bound to consult with the Legal Committee whether the case should be carried to the House of Lords for final decision. But the issue belongs to the next year.
In consequence of the rule granted by the Court of Queen's Bench, Lord Penzance, when the Prestbury case next came before him on June 12, 1879, whilst stating that he "should have been prepared to order a significavit in this case," decided, "out of respect to the Court of Queen's Bench," to defer judgment, though he was "satisfied that the Decree of Suspension made in this case was a valid one." When, on Nov. 2, the case again came before Lord Penzance, his lordship criticized at length the judgment of the Lord Chief Justice, but concluded as follows:--"I have dwelt thus at large upon the judgment pronounced in Mr. Mackonochie's case because I conceive that the independence of this tribunal demanded an adequate protest against the invasion thereby made upon it. But the Queen's Writ of prohibition, however unadvisedly issued, must command both obedience and respect. And as I cannot proceed to punish Mr. Edwards, the defendant in the case, by imprisonment, without the chance of running counter to the principles which have been acted upon in the case of Mr. Mackonochie, and possibly, if not probably, inviting another prohibition, I think it best for all parties to hold my hand, and decline to proceed to compulsory measures at present."
In connection with the action of the Treasury in undertaking the Appeal on behalf of Lord Penzance, it was resolved at the Ordinary Meeting on Dec. 12, 1878:--
Moved by Mr. E. Hornell, and seconded by Mr. Octavius Leefe--
That, in the opinion of this meeting of the Union, the action of the Treasury in directing the law officers of the Crown to appear for Lord Penzance and contend against his being prohibited in the case of Martin v. Mackonochie, and in further directing an appeal from the judgment of the Queen's Bench Division, all at the public expense, is an unprecedented interference in litigation between private suitors, and that this meeting calls upon the members of the Union to give a liberal support to the Special Defence Fund now being raised by the President and Council to defray the heavy expenses connected with the Appeal from the Queen's Bench judgment aforesaid.
A new suit was commenced against Mr. Dale, and an adverse decision pronounced by Lord Penzance on Feb. 8, 1879. It having transpired that the sums of £25 and £50 respectively had been paid out of the trust funds of the parish to assist the Church Association in their prosecution, the Charity Commission refused to sanction the payments thus improperly made.
The important question of the right of a Bishop to veto proceedings under the Church Discipline Act was raised by the attempt of a Dr. Julius to coerce the Bishop of Oxford (Mackarness) in a suit against Canon Carter. The Bishop, in the exercise of his discretion, had previously refused to allow the P. W. E. Act to be put in force against Canon Carter. A rule nisi having been obtained, the Bishop decided to show cause, in the Court of Queen's Bench, against the rule for a mandamus. The President and Council at once took upon themselves the responsibility of authorizing the Legal Committee to act as they thought fit for Canon Carter's protection, and the Committee, having ascertained that the Bishop of Oxford intended to appear in person, Mr. Charles, Q.C., and Dr. Phillimore were instructed to appear for Canon Carter.
The case was argued before the Lord Chief Justice, Mr. Justice Manisty, and Mr. Justice Field on Feb. 27 And 28, 1879, Dr. Stephens and Mr. Jeune appearing for Dr. Julius. Judgment was given on March 8, and the Court was unanimous in holding that "the Bishop had no discretion," and that it was not open to the Court "as a matter of discretion to withhold the redress which the applicant seeks at our hands. The rule for a mandamus to the Bishop to issue a Commission, or send the case at once to the Court of Arches by Letters of Bequest, must therefore be made absolute." The Bishop of Oxford decided at once to appeal, and the Legal Committee resolved to aid the appeal by enabling Canon Carter to unite with the Bishop of Oxford in his application to the Appellate Tribunal. It was obviously absurd in theory, and anomalous in practice, that a Bishop should have full power to stay proceedings when three parishioners, as under the P. W. R. Act, complained, but absolutely no power whatsoever when; as under the Church Discipline Act, one only complained. Besides, the Parliamentary history of the Act conclusively proved that, as stated in the Royal Commission of 1830, it was expressly designed to "restore to the Bishops that personal jurisdiction which they originally exercised." The Lord Chancellor (Cairns), moreover, had stated in the House of Lords, on June 5, 1874, in reference to the P. W. E. Act, that, under the Church Discipline Act, "the Bishop has a discretion, as he has under this Bill [viz., P. W. R. Act], as to whether or not he will proceed." The Appeal was heard before the Lords Justices Bramwell, Baggallay, and Thesiger on April 23, and the arguments occupied seven days. Judgment was given on May 30, when the judgment of the Queen's Bench was unanimously reversed. The Court held that the words in section 3 of the Statute, "It shall be lawful for the Bishop," were only enabling, and not obligatory; consequently, that the Bishop had a discretion, and had lawfully exercised it. Notice of appeal to the House of Lords was given by the promoter.
Attempts were made, in the case of St. Andrew's, Wolverhampton, to upset the arrangement made by the late Bishop of Lichfield (Selwyn); but the then Bishop (Maclagan, now Archbishop of York) refused to take any action, and eventually directed his secretary to inform the churchwardens "that he must decline to hold any further communication with" them "upon this subject."
At the Ordinary Meeting on Dec. 12, 1878, the following resolution of condolence was passed:--
Vote of Sympathy with the Archbishop of Canterbury on the death of Mrs. Tait. Moved by the President from the chair--
That this meeting of the English Church Union requests the President to convey to his Grace the Archbishop of Canterbury, on behalf of the clergy and laity composing the Society, the expression of their deep sympathy in the bereavement which has befallen him. Personally acquainted as many of them are with the debt which so many works of mercy in London and elsewhere owe to the self-denying and unwearied labours of Mrs. Tait, they feel that a grievous loss has been sustained, not only by his Grace, but also by the suffering poor of Christ's flock. The Union earnestly prays that it may please God to support his Grace in his present distress.
On the same occasion, the following resolutions, originally passed in January, 1877, were solemnly reaffirmed, as embodying the fundamental principles of the Union:--
The Fundamental Principles of the E. C. U. Moved by the President from the chair--
(1) That the English Church Union, while it distinctly and expressly acknowledges the authority of all courts legally constituted in regard to all matters temporal, denies that the secular power has authority in matters purely spiritual.
(2) That any court which is bound to frame its decisions in accordance with the judgments of the Judicial Committee of the Privy Council, or of any other secular court, does not possess any-spiritual authority with respect to such decisions.
It was also resolved:--
Moved by Mr. H. O. Wakeman, and seconded by the Rev. H. E. Baker--
That, seeing that the laws of this realm as to marriage and divorce are at variance with the doctrine and discipline of the Church in sundry grave particulars, be it resolved, that it is the duty of Churchmen stedfastly to maintain that doctrine and discipline, to refuse to avail themselves of any unlawful privileges offered by the secular law, and to resist all attempts to desecrate the office of Holy Matrimony by celebrating with Christian rites marriages which are unholy and forbidden to Christians
At the Ordinary Meeting on Feb. 13, 1879, the following Memorial to Convocation on the subject of the Marriage of Divorced Persons was adopted:--
The undersigned clergy and communicants desire to approach your Right Reverend (or Reverend) House,
Earnestly praying your Right Reverend (or Reverend) House to take such steps, as in your wisdom you shall see fit, to protect the consecrated buildings of the Church of England from the desecration to which they are now liable by the celebration therein of the (so-called) marriages of divorced persons whose real husbands or wives are still living.
Your Petitioners would humbly submit that--as our Blessed Lord expressly declares that "whosoever marrieth her that is put away from her husband committeth adultery" (Luke xvi. 18)--it is a grave scandal that marriages which are described by our Lord as acts of adultery should be celebrated in buildings which have been consecrated and set apart for the worship of God.
At the Ordinary Meeting on April 24, 1879, the following Report of the President and Council on the appointment of Bishops was unanimously agreed to:--
I. That, inasmuch as the Bishops of the Church of England are duly consecrated in legitimate succession from the Apostles, they are true Bishops of the Holy Catholic Church, and are, therefore, ipso facto, possessors of all the spiritual powers inherent in the episcopate.
II. That it is, however, desirable that a change should be made in the mode of selecting those who are to be presented for episcopal consecration, for the purpose of bringing the election more in accord with the primitive practice, by giving those with whom the Bishop is to be associated, and those over whom he is to exercise authority, an effective voice in his appointment.
III. That the several parties chiefly interested in the appointment of a Bishop, are: (1) The Crown, (2) the Dean and Chapter of the Cathedral, (3) the other clergy and the laity of the diocese, and (4) the Metropolitan and his comprovincial Bishops and that each of these parties should have a voice in his appointment.
IV. That although the present mode of election by the Dean and Chapter of the cathedral church is inconsistent with the principles embodied in the two previous paragraphs, it is nevertheless expedient under existing circumstances to aim first at the repeal of 25 Hen. VIII., cap. 20, which inflicts the penalties of praemunire on the exercise of their right of free election.
V. That the several parties mentioned in paragraph III., as being interested in the appointment to a bishopric, might exercise their rights in the manner following:--
1. The Crown through its responsible advisers.
2. The Dean and Chapter of the Cathedral, and the clergy and laity of the diocese, through a Diocesan Convention.
3. The Bishops of the province, in a meeting summoned by the Metropolitan.
VI. That it would be advisable, that, on the avoidance of a bishopric, authority should by gent by the Crown to the Archbishop of the province to summon the Comprovincial Bishops, and to direct the Dean and Chapter to convoke the Convention of the diocese, for the purpose of proceeding to an election; and that the final selection should remain with the Crown.
VII. That any change in the method of appointing Bishops, other than the removal of existing statutory impediments to the freedom of election, should receive the sanction of the Provincial Synods.
The first suit in the province of York, under the P. W. E. Act, arose in the case of the Rev. S. F. Green, Incumbent of St. John's, Miles Platting, in the diocese of Manchester. Lord Penzance heard the case at the House of Lords on June 12, 1879. Several of the usual Ritual offences were alleged, and held to be proved. Mr. Green was admonished not to repeat them, was ordered to remove an Altar Cross, and was condemned in costs.
No less than 134 cases were submitted to the Legal Committee for advice, including desecration of churchyards, brawling, sacrilege, tithes, pew-rents, election and duties of churchwardens and sidesmen, vestry meetings, rights of lay rectors, patrons, vicars, and trustees, altar vessels, ornaments, chancel decorations, and other kindred matters. By the action suggested, costly litigation was, in many cases, avoided.
Assistance was granted from the Sustentation Fund to the Revs. A. Tooth, J. Edwards, and Rev. A. H. Ward. The Council contributed £50 to the local sustentation fund in the latter case.
Seventy-five petitions were presented against the Deceased Wife's Sister's Bill, by means of the local organization of the E. C. U. in various parts of the country, and the following memorial was presented by Lord Limerick to the House of Lords:--
That the law of the Church forbids marriages within certain degrees of affinity.
That the law of the land has hitherto adopted the law of the Church as regulating the tenure of property.
That any change in the law of the land rendering it discordant with that of the law of the Church would not only be highly objectionable to Churchmen, but would introduce the greatest confusion into questions affecting the title, succession, and settlement of property.
At the Annual Meeting on June 10,1879, the following Memorial to Convocation on "The necessity of maintaining the Prayer Book unaltered, as a principal bond of union among English Churchmen," was adopted, together with the resolution preceding it--
That the following Memorial be signed by the President on behalf of the Union and presented to Convocation:--
That your Memorialists regard with regret and extreme anxiety the various proposals that are being suggested for alterations in "The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church."
That the Book of Common Prayer, as settled at the last revision in 1662, has been, and is, contentedly acquiesced in by the great majority of English Churchmen, and happily serves as a strong bond of union amongst them.
That any alterations in the Book of Common Prayer at the present time would greatly weaken this bond, and endanger the future of the Church of England.
That, in particular, the Ornaments Rubric, which specifies the second year of Edward VI. as the standard of ornaments and ritual usage, read according to its plain and obvious meaning, and taken in its literal and grammatical sense, witnesses, by its retention of the ancient ceremonial of the Church of England, to the grace and dignity of the Holy Sacrament, and also to the identity of the Church of England of the present day with the ancient Church of the land, as well as with the undivided Church of primitive times.
That the wresting of the Ornaments Rubric from its plain and obvious meaning, and reading it as though it were intended to negative what it really prescribes, would, by prohibiting the ancient ceremonial of the Church of England, tend to obscure the grace and dignity of the Holy Sacrament, and to dissociate the Church of the present day from the ancient Church of the land, as well as from the undivided Church of primitive times.
Further, that any action on the part of Convocation which tends to break the continuity of the Church of England, and to dissociate the Church of the present time from the ancient Church of this country, is earnestly to be deprecated.
Your Memorialists, therefore, implore your Venerable House to resist at the present time any alterations in "The Book of Common: Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church."
The Tract Committee announced that, during the twelve months ending April 30, 1879, the fourth year of its existence, they had been able to carry on their work without any grant from the Council, owing to the large stock which they had amassed, and the brisk sale which their publications met with.
During the year 1,448 persons joined the Union, bringing up the total to 17,656. Five new District Unions, 14 Local Branches, and six Parochial Associations were formed. Total--District Unions, 39; Branches, 245; Parochial Associations, 99.