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The History of the English Church Union

by the Rev. G. Bayfield Roberts

London: Church Printing, 1895.



ON Sunday, July 4, 1880, notice of sequestration of the benefice was affixed to the door of St. Alban's, Holborn. The Bishop of London (Jackson) had been advised that it was his duty, as a mere ministerial matter, to direct his registrar to publish the sequestration of the income of the benefice, and Mr. Mackonochie, in order, if possible, to defend himself against the Church Association, who were praying for the costs for the whole expenses of the long protracted suit, was obliged to carry on the Appeal to the House of Lords against the legality of his suspension, as to which the Judges in the Courts below--viz., the Court of Queen's Bench and the Appellate Court--had, in point of numbers, been equally divided--in the Queen's Bench a majority of one being against the legality of the suspension, and, in the Appellate Court, a majority of one having reversed that judgment. Lord Chief Justice Cockburn, Lord Justice Brett, Lord Justice Cotton, and Mr. Justice Mellor were against the legality of the sentence of suspension, and Lord Justice Coleridge, Lord Justice James, Lord Justice Thesiger, and Mr. Justice Lush affirmed it. The Appeal to the House of Lords commenced on Feb. 18, 1881, before the Lord Chancellor (Selborne), Earl Cairns, Lord Blackburn, and Lord Watson. Mr. Martin was not represented, having withdrawn from the suit on the ground that "when proceedings were originally taken it was understood that their object was simply to ascertain authoritatively the law of the Church on certain points, which, when ascertained, would be acquiesced in on both sides and obeyed. It never occurred to me, nor I suppose to any one else, that the judgment of the Courts of law would be set at defiance, and that obedience could only be enforced by imprisonment" (Letter to Bishop of London, June 14, 1880). On April 7, 1881, the House of Lords by an unanimous judgment affirmed the judgment of the Court of Appeal which set aside the prohibition of the Court of Queen's Bench, and thereby declared Lord Penzance's sentence of suspension for three years ab officio et beneficio to be legally valid. The general effect of this decision was, that a priest against whom a monition under the Clergy Discipline Act has once been issued, remains liable, during the rest of his life, to summary suspension, without a fresh suit, if he should at any time infringe the motion.

On August 5, 1880, application was made to Lord Penzance to pronounce Mr. Dale in contempt, and to signify the same to the Court of Chancery, with a view to his imprisonment. The significavit was issued on October 28, and Mr. Dale was arrested, under the Lord Chancellor's writ, on October 30, and conveyed to Holloway Gaol. On November 29 an application was made in the Court of Queen's Bench, before Mr. Justice Field and Mr. Justice Manisty, for the release of Mr. Dale under the Habeas Corpus Act, and for a prohibition to stop all proceedings on various technical grounds. A rule nisi was granted, but on December 13 Lord Chief Justice Coleridge, Mr. Justice Field, and Mr. Justice Manisty, unanimously discharged the rule, and Mr. Dale was remanded into custody. As the Courts were about to rise for the Christmas Vacation, it was decided to appeal without delay, and an application was made to the Court of Appeal at Westminster on December 18, before the Lord Chancellor and the Lords Justices Baggallay and Brett to accelerate the hearing of the Appeal. The Court decided to defer the hearing until after the vacation, but meantime liberated Mr. Dale from prison, upon the understanding that he would not "assume any duty" in Church during the interval.

The Appeal was heard at Lincoln's Inn on January 11, 1881, and five following days, before the Lords Justices James, Brett, and Cotton. The two main points urged were: (1) that disobedience to the inhibition under the P. W. R. Act was not a matter for imprisonment; (2) that the writ was improperly issued. The Court decided against the more serious contentions; but, on the point that there had been a miscarriage in the mode in which the writ of Capias had been dealt with, ordered Mr. Dale's release. The Court held that it was "not a matter of form," but "a matter of substance" that "the writ which was issued from the Court of Chancery, from the Petty Bag office, should be brought into the Queen's Bench and opened there, in order that the judicial mind might, if necessary, be addressed to the significavit to see whether it was such a writ as the Court of Queen's Bench would take upon itself to execute." As this had not been done, the Appeal was sustained on this point. No further attempt was made to recommit Mr. Dale to prison; but his church having been closed by the churchwardens for repairs, he was unable to officiate. Shortly afterwards the benefice became vacant by his acceptance of another benefice in Lincolnshire, and all proceedings in the case came to an end.

An application was made on August 5, 1880, to pronounce Mr. Enraght in contempt, but Lord Penzance ordered it to stand over as "the papers were in a most irregular condition." On October 28 the application was renewed, but his lordship postponed judgment in order to see what course Mr. Enraght would take in consequence of the significavit which had recently been granted in the case of Mr. Dale. On November 20, the Judge pronounced Mr. Enraght contumacious and in contempt, and directed this to be signified to her Majesty in Chancery. Mr. Enraght was consequently arrested on November 27, and imprisoned in Warwick Gaol. An application to the Court of Queen's Bench obtained a rule nisi for a writ of Habeas Corpus on December 7. On December 13, after the adverse decision in Mr. Dale's case, the Court proceeded to consider an additional point raised in Mr. Enraght's case, viz., that he had been inhibited for doing various acts which he had never been admonished not to do, e.g., for wearing a biretta and a stole. The Court overruled the objection, and refused the application for the writ of Habeas Corpus. An Appeal was then made simultaneously with that in Mr. Dale's case. Mr. Enraght declined to avail himself of the conditional leave of the Court for his liberation, pending the hearing of the Appeal, on the ground that "the proposed order for my release takes for granted my obedience to Lord Penzance's inhibition in all respects" (Letter to the Churchwardens, dated--"Her Majesty's Prison, Warwick, Dec. 20"). The Court, in considering Mr. Enraght's case, held that if the application had been made by way of Appeal, it would be very doubtful whether Mr. Enraght had been "correctly inhibited, inasmuch as the inhibition went further than, and comprised acts not mentioned in, the monition"; but that, the objection being raised upon an application for prohibition, a question of fact was involved which the Court could not inquire into. Mr. Enraght, however, was released from custody in consequence of the defective issue of the writ of Capias; but he was left liable to recommitment if a fresh writ were granted, and an application was made by the Church Association for that purpose. An Appeal was therefore lodged in the House of Lords on behalf of Mr. Enraght, with respect to the legality of his inhibition.

No further proceedings were taken in the case of Mr. Green (who had been inhibited for three months on August 9, 1879) until July 24, 1880, when an application was made to Lord Penzance for an order declaring Mr. Green in contempt for non-payment of costs, amounting, after taxation, to £293 7s. 8d.--an amount subsequently declared by the Lord Chancellor (Selborne), on May 7 1881, to be "a great scandal." His lordship also said that "the defects [of the P. W. R. Act] extended as they went on." On October 22 a copy of a sequestration of his personal property was served on Mr. Green. In March, 1881, an application was made to the Lord Chancellor to remove and sell Mr. Green's furniture. This was opposed, and the case adjourned to April 2, when the Lord Chancellor deferred his decision, on the ground that an application was about to be made to the Queen's Bench, which might affect the validity of the proceedings to enforce costs. In the meanwhile, on August 5, 1880, an application was made to Lord Penzance for a significavit notifying Mr. Green's contempt of the inhibition of August 9, 1879. A technical objection was raised as to whether the application should have been made at York; and after two adjournments to October 28 and November 20, Lord Penzance pronounced Mr. Green contumacious and in contempt. Mr. Green was not, however, arrested until March 19, 1881, four months after Lord Penzance had decreed the significavit. Upon this, an application was made to the Queen's Bench for a writ of Habeas Corpus on April 6, before Mr. Justice Grove and Mr. Justice Lindley. It was alleged (1) that Lord Penzance had no jurisdiction, sitting at Westminster, to hear the case and issue a significavit; (2) that the whole of the proceedings after the significavit were void, inasmuch as the Vice-Chancellor of Lancaster had no jurisdiction in the matter to issue the writ; (3) that, even assuming that he had such jurisdiction, he could not exercise it in Lincoln's Inn. The Court refused the rule nisi, whereupon an appeal was made, on April 8, to the Lords Justices James, Brett, and Cotton, who granted the rule, which was argued on April 12. Having heard the arguments, the Lords Justices were unanimous in deciding to discharge the rule on all three points. In consequence of this decision, the application to the Lord Chancellor to remove and sell Mr. Green's furniture in payment of costs was renewed, and on May 20 his lordship issued a written judgment, deciding, with great reluctance, to give authority for the sale of Mr. Green's furniture, but only on the premises.

In order not to waste money and public time by fruitless applications to the Courts of Justice on merely technical points, the President and Council laid a case before two eminent counsel, entirely unconnected with the Union--viz., the late Attorney-General (Sir John Holker, Q.C., M.P.), and Mr. E. Vaughan Williams. Their opinion, dated May 21, 1881, being decidedly in favour of an Appeal, and the principal points to be raised being not technical but involving grave questions of substance, the President and Council recommended Mr. Green to appeal to the House of Lords, and determined to assist him to prosecute the Appeal with the utmost despatch.

On December 21, 1880, Lord Penzance gave notice that, on January 8, he would, if nothing intervened, pronounce sentence of Deprivation on Mr. Baghot de la Bere. This was accordingly done; but an application was forthwith made to the Master of the Rolls, who granted a rule nisi calling upon Lord Penzance and the promoter of the suit to show cause why a prohibition should not issue against publication of the sentence of deprivation.

Mr. Blennerhassett's Marriage Law Amendment Bill, which had been generally approved of at the Ordinary Meeting on February 19, 1880, was now divided into two separate Bills, and introduced in a form which omitted all the clauses for the relief of the clergy of the Church of England.

On September 4,1880, the House of Lords agreed to the Commons' amendments to the Burials Bill, and thus the Burial Laws Amendment Bill, introduced by the Government, was passed by the Legislature. A very strong feeling of dissatisfaction was manifested in the Union, as indicated by the protests sent in by many Branches, because the President and Council had not followed up the resolution passed at the Annual Meeting on June 9, 1880, by any active opposition to the Bill. A good many members withdrew from the Union, and the Church Association. encouraged by what it deemed to be symptoms of disruption, proceeded to consider the expediency of "The formation of a new Guarantee Fund," with a view to fresh prosecutions. This feeling of dissatisfaction found expression at the Conference of members and associates attending the Church Congress at Leicester, when the following resolution was proposed by the Rev. Gr. Bayfield Roberts, and seconded by the Rev. C. H. V. Pixell:--

The Council and the Burial Laws Amendment Act (1880).

That this Conference, before proceeding to consider the President's proposed resolution, desires to protest most emphatically against the Council's recent policy of inaction, in consequence of which not the slightest effort was made by the English Church Union, as a Society, to maintain the Doctrine and Discipline of the Church of England, both of which have been violated by the Burial Laws Amendment Act of 1880.

Upon the proposal of Archdeacon Denison, supported by the Rev. A. Lendrum, the original motion was withdrawn, and the following amendment, accepted as a substantive motion, was carried with only a few dissentients, the President stating that "he did not think that anything that the Council could have done would have made any practical difference":--

That this Conference, before proceeding to consider the President's proposed resolution, desires to record the expression of its deep regret that it should not have appeared to the Council to be the best course, with respect to the Burials Bill, to take more decided steps in opposition to it pending its passage through Parliament.

A Special Meeting was held at the Freemason's Tavern on November 25, 1880, to consider the subject of "Church Discipline and the Burials Laws Amendment Act." A Report was presented from the President and Council, containing certain recommendations as to what line of conduct should be pursued. The Report advised (1) that Churchmen should not in future consent to the consecration of additions to existing churchyards in public cemeteries; (2) the closing of all churchyards where practicable; (3) the creation of burying-places vested in private trusts, and, therefore, capable of being consecrated for the exclusive use of the Church; (4) that whilst the clergy should keep the ordering of the position and digging of the grave in their own hands, it was not desirable invidiously to mark off the graves of those who might be buried under the Act; (5) that it would be unadvisable to give up the fees, such fees being paid for the use of the ground, not for the services of the priest; (6) that the use of the bell, and of all Church furniture belonging to the Church should not be conceded; (7) that to comply with the provision for registration need occasion no distress to the consciences of the clergy, inasmuch as the parish register originated with the civil authority, and the Act of Registration has no spiritual signification.

The following resolutions were then passed:--

Burials Laws Amendment Act.

Moved by Dr. Phillimore, seconded by the Rev. W. M. Church--

That it is desirable that no fresh ground should be provided for burials except under private trusts, for which the Legal Committee of the E. C. U. is hereby requested to take steps for drawing up a form of trust deed. It is also desirable that there should be no general consecration of ground intended for promiscuous interments, but that an order for the blessing of particular graves should be put forth by authority in every diocese.

Moved by the Rev. G. Greenwood, seconded by the Rev. the Hon. Henry Douglas--

That this Union, relying upon the sanction of the episcopate, and reserving a discretion to the executive of the Society, will support such of its members as may be prosecuted in the Civil Courts for refusing to use the Burials Office of the Church at the interment of notorious evil-livers or avowed unbelievers.

A form of trust deed was subsequently prepared by counsel, under the supervision of the Legal Committee.

A Memorial to Parliament against the Wife's Sister's Bill was presented by the President and Council, and opposition sustained against Mr. Albert Grey's Church Boards Bill.

The famous question of the Archbishop of Canterbury (Tait)--"What is it you want?"--was submitted to the consideration of the various Branches, and the answer was found in the replies given by 128 Branches, either directly, or indirectly through their District Unions. The substance of that answer was contained in the six following resolutions;--

(1) That the clergy and lay communicants of the English Church should have a real voice in the election of their Bishops, instead of having Bishops arbitrarily imposed on them by the Prime Minister of the day.

(2) That the Bishops thus chosen should govern their dioceses constitutionally, with the advice of their Diocesan Synods, the necessity for the restoration-of which is in no way lessened by the assembling of diocesan conferences of clergy and laity, useful as those gatherings are.

(3) That the Provincial Synods of Canterbury and York should be reformed, so as to provide for a more adequate representation of the parochial clergy, both beneficed and unbeneficed.

(4) That the rightful position of the Convocations (thus reformed) in regard to ecclesiastical legislation should be recognised by Parliament, in accordance with our constitution in Church and State.

(5) That Church courts should be appointed--for the diocese, by the authority of the diocesan synod--for the province, by the authority of the provincial synod--and as a Court of Appeal for the whole Church of England by the joint authority of the two provincial synods.

(6) That a further appeal should be allowed tamquam ab abusu, to the Sovereign in a purely secular court, but that such appeal should be allowed only in cases where the defendant in any suit alleges "lack of justice" in the Church Court, and prays that on this ground the case may be remitted to them, or to the sacred synod of the nation, for rehearing.

At the Annual Meeting on June 22,1881, the following resolutions were adopted:--

I. The Rights of the Spiritualty and the Royal Supremacy.

Moved by the Rev. Nicholas Pocock, seconded by Dr. Phillimore--

(1) That--in view of the Royal Commission recently appointed to report upon the constitution and working of the courts now claiming to adjudicate upon matters touching the Faith and internal government of the Church--

This Union

(a) Proclaims the inherent and indefeasible right of the Spiritualty, subject to the acknowledgment that all coercive jurisdiction in England is derived from the Crown, to determine its own causes free from external interference, according to the commission given to the Apostles by the Divine Head of the Church;

(b) Repudiates any theory of the Royal Supremacy which would extend to the Sovereign or to her courts the decision of matters affecting the Faith and worship of the Church.

II. Support of Suffering Clergymen and Laymen.

Moved by Sir William Worsley, Bart., seconded by the Rev. E. W. Randall--

That this Union asserts its determination in the future, as in the present, to support to the utmost of its power such of the clergy and laity as may be called upon to suffer on behalf of these principles.

III. Appeal to Churchmen to Support E. C. U.

Moved by Archdeacon Denison, seconded by Rev. Canon Gray (Vicar of Blyth)--

That, inasmuch as the Constitutional struggle on which the Union is engaged can only be brought to a successful termination by much labour and self-sacrifice, this meeting invites not only the Members of the Union, but all those who care for the liberties of the Church, to give a generous and self-denying support to the exertions of the Council.

At the Evening Meeting the following resolution was adopted:--

Vote of Thanks to Rev. S. F. Green.

Moved by Mr. J. Shelly, seconded by the Rev. Berdmore Compton--

That this meeting thanks Mr. Green, on behalf of the whole Union, for vindicating the inherent and constitutional rights of the Church of England, by his refusal to recognise the authority of secular courts to suspend him from the exercise of his spiritual functions, and for his willingness to suffer imprisonment rather than accept decisions which. contradict the plain words of the Book of Common Prayer.

The third resolution, which had been adopted at the Afternoon Meeting, was then proposed by the Rev. G. Body, seconded by Mr. Benjamin Gr. Lake (Treasurer of the E. C. U.), and carried unanimously.

The Rules, which had not been revised since 1869, were submitted for revision to a committee, whose recommendations, with a few modifications and verbal alterations, were approved by the Society at the Ordinary Meeting on April 26, 1881. The alterations consisted mainly in the removal of obsolete rules, the clearer statement of rules whose meaning had been misunderstood, and the incorporation of customs generally adopted, but not formally directed. Some important new rules were, however, drawn up, of special importance, viz., (1) That the number of Vice-Presidents might be 12 (instead of 2), not less than one half being laymen; (2) that no delegate should retain his seat on the Council for more than 18 months without re-election; (3) that two of the three Ordinary Meetings might be held in the country, and at any time; (4) that one-fourth of the grants received by Local Branches should be paid to the District Union, upon application of the Committee of the D. U.

During the year 2,619 persons joined the Union, bringing up the total to 19,420. Six new District Unions and 18 Branches were formed. Total--District Unions, 45; Branches, 264.

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