Forbes v Eden
| Jurisdiction | England & Wales |
| Judgment Date | 11 April 1867 |
| Date | 11 April 1867 |
| Docket Number | No. 6 |
| Court | House of Lords |
Ld. Chancellor (Chelmsford). Ld. Cranworth Ld. Colonsay.
Jurisdiction—Church—Contract—Title to Sue.—
Church—Reparation—Title to Sue—Reduction.—
(IN the Court of Session, 8th December 1865, ante, vol. iv. p. 143).
This action was raised by the Reverend George Hay Forbes, minister of the Scotch Episcopal congregation at Burntisland, against ‘the Right Reverend Robert Eden, doctor of divinity, one of the bishops and primus of the religious denomination known as the Episcopal Church in Scotland, and others,’ as members of a General Synod of the said Church holden at Edinburgh on the 8th day of July 1862, and continued by successive adjournments and prorogations until the 13th day of February 1863, and as individuals.
The summons concluded for reduction of ‘a pretended code of canons, entitled “The Code of Canons of the Episcopal Church in Scotland, as adopted, enacted, and sanctioned by a General Synod holden at Edinburgh on the 8th day of July 1862, and continued by successive adjournments and prorogations until the 13th day of February 1863,”’‘in so far as it contains the enactments comprised in article 20, section 4; article 28, section 20; article 29; article 30, sections 2 and 4; and article 38, section 3.’‘And in any event, whether the said code of canons be reduced to the extent foresaid or not, it ought and should be found and declared’‘that it was and is ultra vires of the defenders, or of any General Synods of the said Church, to alter, amend, or abrogate any of the canons contained in the code, which was revised, amended, and enacted by an ecclesiastical synod holden for that purpose at Edinburgh on the 29th day of August, and continued by adjournment till the 6th of September inclusive, in the year of our Lord 1838,’ or to make new canons for the said Church, except in so far as such alterations, amendments, abrogations, and new canons may be in conformity with the constitution which was recognised, and the practice which was acknowledged, in the said Church at the time of the pursuer's ordination as minister thereof, and set forth in the code of canons of 1838, which was then subscribed by him.
The summons further concluded for declarator ‘that the pursuer is entitled to celebrate divine worship, and all the other services, and to administer the sacraments and all other rites of the said Church in conformity with the said canons, enacted in the year 1838, and is entitled to the free exercise and enjoyment of all the privileges conferred on him under said canons, or under the deed of institution in his favour after-mentioned.’
Then followed a petitory conclusion, to the effect that the defenders should be decerned and ordained, ‘conjunctly and severally, or severally and respectively, as may be determined in the course of the process, to make payment to the pursuer of the sum of L.120, being the amount paid by him, or for which he is liable to make payment, to the Reverend John Wilkinson, bachelor of arts, for his services as curate to the said pursuer, in terms of an agreement between them to that effect, of which services the pursuer was deprived through the wrongous refusal of a license to the said Reverend John Wilkinson, as hereinafter set forth; and also of the sum of L.200, in name of compensation, damages, and solatium for the loss and injury which he has sustained patrimonially, and in his health and feelings, by and through the wrongous refusal of license.’
The portions of the canons of 1862 sought to be reduced were,—Article 20, section 4.—‘Provided always that under special circumstances a bishop shall not be precluded from opening a mission in any part of his diocese, when to him it may seem desirable.’ Article 28, section 20.—‘The General Synod shall have power to alter, amend, and abrogate the canons in force, and to enact new canons, provided that such alterations, amendments, abrogations, and new canons be in conformity with the recognised constitution of this Church; and such enactments shall oblige as well the minority in the said Synod as all members of the Church.’ Article 29.—‘Whereas in the preface to the first Reformed Prayer Book of the Church of England (1549) it was provided, in order to remove the inconveniences arising from “diversity” in the celebration of divine worship, that “henceforth all the whole realm shall have but one use;” and whereas, in consequence of the communion and intercourse that exist between the United Church of England and Ireland and the Episcopal Church in Scotland, it is expedient to have as little diversity as may be between the practice of this Church and that of the sister Churches of the United Kingdom in the use of divine offices; and whereas the English Book of Common Prayer is, and has been for many years past, in general use amongst us, not only for the performance of morning and evening service, but for the administration of the sacraments and other rites and ceremonies of the Churches;—it is hereby enacted that the said Book of Common Prayer, as now authorised according to the Service Book, is, and shall be held to be, the Service Book of this Church for all the purposes to which it is applicable; and that no clergyman shall be at liberty to depart from it in public prayer and administration of the sacraments, or in the performances of other divine offices, except so far as the circumstances of this Church require, and as specified in the canons of this Church.’ Article 30, sections 2 and 4.—(2) ‘The office of the Book of Common Prayer shall be used in all new congregations, unless the majority of the applicants mentioned in canon xx. sect. 1, shall declare to the bishop at the time of sending their resolutions to him, that they desire the use of the Scotch Office in the new congregation, in which case the bishop shall sanction such use. The use of the said office shall be continued in such congregation, unless the clergyman and a majority of the communicants shall concur in disusing it.’ (4) ‘At all consecrations, ordinations, and synods, the Communion Office of the Book of Common Prayer shall be used.’ Article 38, section 3.—‘At the burial of the dead the rubrical directions of the Book of Common Prayer shall be complied with so far as the circumstances of the Church will permit.’
The substantial parts of the pursuer's averments were to the following effect:—The pursuer was ordained a clergyman of the Episcopal Church in Scotland. (Cond. 2) ‘Prior to his ordination the pursuer, in accordance with the laws and practice of the said Church, was called upon to subscribe, and did subscribe—(1) “The book of articles of religion agreed upon by the archbishops and bishops of both provinces of the realm of England, and the whole clergy thereof, in the convocation holden at London in the year of our Lord 1562;” and (2) “The canons of the Episcopal Church in Scotland, drawn up and enacted by the bishops and clergy of that Church, in a synod holden for that purpose at Edinburgh in the year of our Lord 1838.” The ordination and subscription above set forth constituted the agreement or contract which regulated the rights and privileges of the pursuer as a clergyman of the said Church.’ (Cond. 4) ‘In 1849 the pursuer was instituted to the pastoral charge of the Episcopal congregation in Burntisland, which charge he held at the date of the action. Under the deed of institution he held his position for life, and could only be removed for an offence against the canons of the Scotch Episcopal Church. He had, at his own expense, built a clergyman's house, school, and chapel, on ground purchased by himself. From his office as minister at Burntisland he derived an income of about L.40 per annum.’ (Cond. 5) ‘He was a member of the Scotch Episcopal Friendly Society, which is confined to the clergy of the Scotch Episcopal Church, and gives to the widows of members of it annuities of L.30, and to their children the sum of L.300. ‘If the pursuer were deprived of his status of a clergyman of the Episcopal Church in Scotland, the foresaid provision for bis wife, in the event of her surviving him, would be lost; and as he is in feeble health, he could only make a similar provision by ordinary insurance at great annual expense.’
(Cond. 6) ‘By the 33d article of the canons of 1838, subscribed by the pursuer as aforesaid, it is enacted that a “General Synod of the Church, duly and regularly summoned has the undoubted power to alter, amend, and abrogate the canons in force, and to make new canons; and the said alterations, amendments, abrogations, and new canons, being in conformity with the recognised constitution and acknowleged practice of this Church, shall not only oblige the minority in the said synod, but all the absent members of the Church.”’ (Cond. 7) ‘Various attempts have recently been made to introduce changes in the hitherto recognised doctrines, constitution, and practice of the Episcopal Church in Scotland. Many of the alterations proposed are at variance with the doctrines and “recognised constitution and acknowledged practice” required to be held and observed by the clergymen of the said Church at the time when the pursuer was ordained and instituted to his present charge, and on the faith of which he sought and obtained admission into the ministry of the said Church. In particular, at the meetings of the General Synod of the said Church, which commenced at Edinburgh on the 8th day of July 1862, it was resolved to adopt and issue a new code of canons…. The defenders were the members of the said General Synod, and the said new code of canons was adopted, enacted, and sanctioned by them. Before the new canons were finally adopted, the pursuer's agents, on 5th February 1863, wrote to Mr II. J. Rollo, W.S., as clerk to the Upper Chamber of the General Synod, stating that they were instructed by the pursuer “to take all necessary steps to protect his interests, which are affected by...
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