The Oxenden Monument judgment, 1978

THE OXENDEN MONUMENT JUDGMENT, 1978 J. PHYSICK Midway between Ash and Sandwich in Kent is the village of Wingham, in which stands the former collegiate church of St. Mary the Virgin. This fine building, originally dating from the twelfth century, was largely rebuilt following the foundation of the college in 1282. After the Reformation, the church must have fallen into disrepair, but probably not so disastrously as the claim in 1541 that the nave had collapsed. A few years later, in 1557, a Canterbury brewer, George Foggard, and his associate, Simon Stanley, obtained a licence to collect money for, it was claimed, the rebuilding of the church. However, parishioners denied that the building had collapsed and petitioned King Philip and Queen Mary I to command that the two men appear before the Court of Star Chamber in order to have the licence cancelled and also to investigate the parish's claim that the money already collected had been 'converted imployed and put to their owne privat gayne and comodytie to the manefeste deceit both of yor maties and of yor lovinge subjects'.1 However, it does seem that during the sixteenth century the church was in a poor condition, perhaps much more than the parishioners were prepared to state to the Star Chamber. The north aisle disappeared, and we must presume, also, that the south aisle was in a precarious condition. Bequests demonstrate that repairs were in progress at least until 1560: for example, in 1558, we find that forty shillings was bequeathed for the re-edifying of the building, 'whereof 20/- when the sawyers shall begin to work, and the other 20/- to be delivered at such time as the church shall be rearing' .2 Hussey and Taylor state that these bequests came to £12 13s. 4d., not an inconsiderable sum, but the money appropriated by Foggard and Stanley totalled £224. Obviously, 1 Arthur Hussey and A.H. Taylor, 'Wingham Church', Arch. Cant., xl (1928), 131-40. 2 Op. cit. 29 J. PHYSICK the parish found itself in straitened financial circumstances and did not have sufficient funds for a substantial building programme. This undoubtedly explains why there are no stone columns in the south aisle arcade, but only sturdy oak posts. At a later date, these posts were enclosed in plaster and painted white to simulate stone, given classical capitals, and above them were round-headed arches with keystones. This arcade is shown in a mid-nineteenth century lithograph. The architectural embellishments, described so late as 1928 as 'excrescences' ,3 were presumably swept away during the 1874-75 restoration by Benjamin Ferrey. Standing proudly in the centre of, and almost filling, the south transept is a superb Baroque monument of 1682, to various members of the Oxenden (Oxinden) family. On a tall base of white marble, with black marble scrolls with ox-heads at the angles, stand four putti, while in the centre is a tall obelisk with cascades of fruit and flowers. On all four sides of the base are panels of lengthy inscription in incised Roman capitals, painted black. Two of the putti stand and support cartouches of arms, a third, lightly draped, kneels with a skull, while the fourth kneels and holds a helmet. The monument, standing where it was placed for over three hundred years, is protected by wrought-iron screens, one to the north between the transept and chancel, and another to the west, between the transept and the south aisle although these do not seem to have been in position in about 1912.4 The sculptors were probably Grinling Gibbons and his partner, Arnold Quellin, but no firm evidence has been found. John Newman in North East and East Kent, first published in 1969, included one of the putti as Plate 80, and has illustrated the monument in colour on the back of the dust-jacket. The monument has inspired at least three other memorials nearby. Beneath the tower of the demolished church of St. Mary Magdalene, Burgate, in Canterbury, is almost a replica (ascribed by some to William Stanton), to John W hitfield (d. 1691), which has been cleaned and is now protected by glass screens: in the church of St. John the Baptist, Barham, is a very late, and poor version to Sir Basil Digwell (d. 1750), 3 Op. cit. The lithograph is after a drawing by 'William Burgess' (could this be William Burges, the architect, who was aged 16 in 1844 when he became the pupil of Edward Blore?). The print appears to show that the north chapel was, at that time, open to the chancel through an arch, like that to the south. 4 I have a postcard bearing a halfpenny stamp which was the first of the reign of King George V, and issued only in 1911 and 1912. It is somewhat surprising that, if the ironwork were re-furbished, or installed, by Lady Capel Cure in 1925, the parish produced no documentation concerning it for the Consistory Court. One would have expected there to have been a faculty relating to work undertaken in the chapel. 30 THE OXENDEN MONUMENT JUDGMENT, 1978 while in the Dane John Garden, Canterbury, is the South African War memorial of 1904 by W.D. Caroe (with lettering by Eric Gill), which is similar in its general form. Arnold Quellin came to England from Antwerp probably in the 1670s and died in 1686, aged about 33. Working in partnership with Grinling Gibbons (d. 1721), their best-known joint work was the 1680s altarpiece for Whitehall Palace. Fragments of this survive in the parish church of Burnham, Somerset. There is one of Grinling Gibbons's monuments in Kent, which is on the east wall of the south transept of Rochester Cathedral. It is to Sir Richard Head (d. 1689), with a white marble relief portrait. Unfortunately, the relief fell from the monument during May 1993, was shattered and re-assembled late in 1995.5 During the last thirty years it seems that the Oxenden monument at Wingham has been viewed within the parish with some disfavour. In 1967, the parochial church council applied to the Canterbury Diocesan Advisory Committee for the Care of Churches for a recommendation to the Commissary-General for a faculty in order to remove the monument and to place it in the churchyard. The Committee asked for the views of the Council for the Care of Churches and also of the Victoria and Albert Museum. Both were unanimous in their condemnation of the proposal, which would have been disastrous for the sculpture. That application did not progress further and matters rested for a while, with only a later, tentative suggestion to move the monument elsewhere within the church. On 27 October, 1976, the parish once again petitioned for a faculty, but this time proposed to place this large monument at the west end of the nave, where the sculpture, still in pristine condition, would have been vulnerable to damage. Mr R.T. Merryweather, in a letter of 25 February, 1976, in the Kentish Gazette, drew attention to the fact that the vicar and churchwardens wished 'to lay violent hands on the centre piece of the chapel and to remove it to another part of the church where it will have no setting and be quite out of place'. The object, Mr Merryweather wrote, was to restore the chapel to its 'original purposes', particularly communion services for one or two persons. It was by chance, when I visited the church early in 1977 not knowing of the proposal, that I met the vicar who, during a discussion about the building and its various monuments (one by Nicholas Stone), mentioned his desire to convert the south transept into a chapel. 5 For further information about both sculptors, see Rupert Gunnis, Dictionary of British Sculptors 1660-1851, and Margaret Whinney, Sculpture in Britain 1530-1830, 2nd edition, revised by J. Physick, 1988, 118-24, and 115-31. 31 J. PHYSICK The letter in the Kentish Gazette did not receive much publicity, but in order to obtain more, a letter from six Fellows of the Society of Antiquaries at the Victoria and Albert Museum, including Roy Strong, Claude Blair and myself, was published in The Times on 27 June, 1977, expressing our concern over the potential danger to the monument. This letter received support from Mr 0. Oxenden Griffiths, Major D. Oxenden Griffiths and Mrs. J.C. Shearme, descendants of the Oxenden family, the Churches Committee of the Kent Archaeological Society (Chairman Mr Michael Nightingale of Cromarty, O.B.E.), the Executive Committee of the Society of Art Historians (Secretary, Dr Charles Avery), Mr C. Currie, the Librarian of the Ashmolean Library, the Society for the Protection of Ancient Buildings (Secretary, Mrs M. Dance), Mr Terence Hodgkinson, C.B.E., the Keeper of Sculpture at the Victoria and Albert Museum, Mr John Doyle and Mr John Newman of the Courtauld Institute of Art, University of London. Although, on 27 May, 1977, the Canterbury Diocesan Advisory Committee, of which Mr Nightingale was a member, had approved (by a majority) a recommendation to the Commissary-General of the Canterbury Diocese, nevertheless, as the matter was felt to be sensitive, the Advisory Committee, rightly advised the Commissary-General that the case ought to be heard in open court before any decision was taken on the issue of a faculty. As a result, in June the Commissary-General issued a citation and directed that a Consistory Court should be held in Wingham Church on 24 September. However, at the end of August, the Commissary-General came to the conclusion that to hold a court without proper preparation would result in adjournments and he directed, therefore, that he would hold a preliminary meeting on 28 September, 1976, at which the procedure and similar matters would be discussed, and documents exchanged. In the Library of Canterbury Cathedral is a transcript of the Consistory Court that had been held in Wingham on 16 and 21 July, 1681. 6 This court had dealt with the assignment or appropriation of the 'chancel' for the erection of a monument, at which appeared George Upton, a notary public, on behalf of Sir Henry Oxenden, Bart., and his eldest son, Sir James Oxenden, knight. Upton claimed: 'That Sir George Oxinden Kt. lately deceased in India whilest he lived president of East India et Persia for the honorable the East India Company of Marchants in London and Governor of the Isle and Castle of Bombay, one of the sonns of Sir 6 Canterbury Cathedral Archives, W.P. Blore Collection, No. 267, Z.2.6, folios 46b and 48a. 32 THE OXENDEN MONUMENT JUDGMENT, 1978 James Oxinden of Wingham ... , did in and by his last will and Testament give and appoint the sum of Five hundred pounds to be laid out in repaireing and beautifying of the said parish Church of Wingham, and also the sum of Three hundred pounds to be laid out in the repaireing and beautifying of the parish church of Adisham and adjacent Church to Wingham aforesaid, and that the said Sir Goerge Oxinden deceased hat made the said Sir Henry and Sir James Oxinden Executors of his said will, and that the said Executors have laid out and expended the said several! sums in repayring and beautifying the said Churches to the great benefitt adnd ornament of the same. Dictus Upton ulterius allegavit That the said Sir George Oxinden hath also in and by his said will given and appointed the sum of Three hundred pounds for the erecting of a monument in the said Church of Wingham in memory of his Ancestors interred in the said Church and namely of Sir James Oxinden Kt. deceased late father of the said Sir Henry and Sir George Oxinded, and that there being no convenient place in the said church to erect and place the said monument in, the parishioners of Wingham aforesaid in tooken of their gratitude for the said Benefaccion, have given their free consent that a certain Chancell scituate at the upper end of the said Church of Wingham, to the south, conteyning in lenght from East to West seventeen foote and from North to South fifteen foote or thereabouts, may be assigned to the said Sir Henry Oxinden and Sir James Oxinden and their heires to place and erect the said monument in, And the said Upton in proofe of what he had alleaged did exhibite a Certificate under the hands of Sir Henry Palmer Baronet, Henry Oxinden Esq. and Robert Lukyn gents. and also under the hands and seales of Stephen Beane and John Morris Churchwardens of the said parish and subscribed by severall other of the said parish, testifying their consent as is alleaged and also expressing that the said Executors have laid out the aforesaid sum of five hundred pounds in repairing and beautifying the said Church of Wingham, Wherefore the said Upton did instantly and humbly pray and desire that the Chancell aforesaid may be assigned and appropriated to the said Sir Henry and Sir James Oxinden and their famuly [sic] for the erecting adnd place the monument in [sic], and also for the makeing and sinkeing of a vault in for a burial place for them and their famuly. Whereupon the Judge haveing inspected the said Certificate and considered the premisses, did order and decree that a proclamacion be sent out and published in the parish Church of Wingham aforesaid in the time of divine service on Sunday the seventeenth day of this instant July and all persons whatsoever to be thereby warned and monished to appeare on Thursday the one and twentieth of July instant in the Consistory Court to shew cause (if they have any sufficient) why the said Chancell should not be assigned and appropriated to the aforesaid Sir Henry Oxinden and Sir James Oxinden and their family for the uses aforesaid with intimacion etc. and to be returned on the said Court day.' The following week, on 21 July, 1681, the Court reconvened. Most of the record is in Latin, Upton introduxit litteras proclamatorias alias in hoe emissas ... , a translation of which, by Mr Nightingale of Cromarty, is: 'Upton produced the letters of proclamation and others which had been sent out relating to this matter and claimed that these letters ought to be and were published following the decree made by the Judge in this matter in the parish church of Wingham aforesaid on Sunday that is the 17th of July instant during the celebration of divine service in the said church as was made clear from the certificate endorsed afterwards and it appeared that he sought due process, according to the law etc. Thereupon proclamation having been made three times for all those wishing to object (intimation and summons about this matter having been duly given) against the 33 J.PHYSICK assignment or appropriation of the said Chancel as mentioned in the letters of proclamation, no one came forward. Whence the Judge on the petition of the said Upton concerning accusations etc. pronounced all and singular were in contempt and in penalty of their contempt of this kind and decreed that the matter should proceed. Then the Judge on the petition of the said Upton in satisfaction etc. granting his interloqutory decree in relation to this part of the proceedings, assigned, allocated, appropriated, adjudged and confirmed (as permanently as it is in his power and he is able by law so to do) the said Chancel situated in the upper part of the Church aforesaid on the south side to tthe said Honourable Sir Henry Oxinden Knight and Baronet and the Honourable Sir James Oxinden Knight son of the said Sir Henry to enable them to erect and place a Monument there in perpetual memory of their ancestors buried in the said Church of Wingham and particularly the Honourable Sir James Oxinden Knight lately deceased father of the said Henry Oxinden and George Oxinden Knight who lately died in the East Indies, a munificent benefactor of the said Church and also for a burying place with right of possession and property to them Henry Oxinden and James Oxinden and their family perpetually and for all future time to the exclusion of all other people.' Upton then stated, and here the record continues in English, 'That the monument to be placed in the Chancell above mentioned will be so spacious that there will not be convenient room for the sinkeing or digging of any graves in the said Chancell without prejudiceing the said monument unlesse a vault be first made and sunke in the same, And that his Clients do humbly pray they may have the license of the Judge of this Court to make a vault in the said Chancell to conteyne in lenght about twelve feete, in bredth about ten feete to be made and built with Arch=worke for a burying place for them and their families, and that they may erect and place the sadi monument thereupon, Whereupon the Judge did grant license to the said Sir Henry Oxinden and Sir James Oxinden to make a vault in the said Chancell of the dimentions aforesaid and did order that the same be done with the inspeccion of the Minister and Churchwardens of the said parish and that the order of this Court be intimated to them accordingly.' It would seem from the Consistory Court papers, that the 'spacious' monument had been designed, even if it was not already executed and ready for placing in the church. It is a matter of great regret that the name of the sculptor was not included in the records. Also, it is likely that the architectural embellishments of the south nave arcade were also part of the Oxenden benefaction. The production of the proceedings of the seventeenth-century Consistory Court caused the Commissary-General to consider several points that he thought would have to be dealt with before he held his own court. Among these were: Whether in 1681 it was legally possible for part of an existing church to be made into a private chapel? What was the legal effect of the 1681 court? Whether execution of a conveyance in fulfilment of the court's intention was to be inferred? In whom was the chapel now vested? On whom rested the responsibility of its repair and maintenance? 34 THE OXENDEN MONUMENT JUDGMENT, 1978 The Commissary-General also wanted to be told whether any of the learned societies who had made representation had members who were parishioners, and also to learn of the historic and artistic importance of the monument. At further preliminary meetings held on 18 September and 12 November, 1977, attended by the Venerable Bernard Pawley, Archdeacon of Canterbury; the Revd. Desmond Sampson, incumbent, and churchwarden Mr Frank Elgar; the Revd. David Naumann, Secretary to the Canterbury D.A.C.; Miss Anne Oakley, Archivist of the Cathedral Library; Mr John Doyle; Mr Clifford Currie, Librarian of the Ashmolean Library; Mr Philip Blake (representing Mr 0. Oxenden Griffiths, Major D. Oxenden Griffiths and Mrs. J.E. Shearme, descendants of the Oxenden family); Mr John Newman, also representing myself and Dr Charles Avery; Mr Michael Nightingale, and Mr Anthony Mauduit, a member of the Executive Committee of the Society for the Protection of Ancient Buildings. The Commissary-General let it be known that if the chapel were, in law, a private chapel, then he had no jurisdiction to hear the petition from the parish, and reminded the family that upkeep was their responsibility. Alternatively, he suggested that the incumbent might petition for a faculty to vest the chapel in the persons or body in whom the church was vested. If there were no objections, he would grant a faculty, and this would clear the way for him to hear the petition for the removal of the monument on its merits. If the latter course were undertaken, then he would hear the petition in the following way: 1. The vicar and churchwardens would present their case and witnesses; 2. The Oxenden family would present their case; 3. The expert evidence from the learned societies would be presented: (i) The history of the monument; (ii) The artistic merits of the sculpture, and (iii) The technical problems involved in the removal of the monument and whether this would be likely to cause damage; 4. The Canterbury Diocesan Advisory Committee would give its views. The Commissary-General wished that there should be an exchange of documents prior to the hearing, and these should include the record of the 1681 Court, together with an agreed translation. The Consistory Court was held in Wingham Church on 15 April, 1978, and the Commissary-General issued his Judgment on 19 May. 35 wing; 194 J. PHYSICK The Judgment In the Court of the Commissary General of the Archbishop of Canterbury Re: The Oxinden Monument, Wingham Church In this case on the 5th July, 1976, the Revd. Desmond Sampson, F.R.I.C.S. Vicar, and Messrs. Frank Elgar, F.R.I.C.S. and Raymond Miles, Churchwardens, of the Church of St. Mary the Virgin, Wingham, presented a petition with the support of the Parochial Church Council for a faculty to carry out the following works: 'To carefully dismantle and remove the large Oxinden monument in the south Chapel and to re-erect same at the west end of the nave.' Subsequently the Petitioners reconsidered their proposals and decided that the monument would be better re-sited at the west end of the south aisle and that in order to make room for it the font should be moved to the west end of the nave. The petition has not been formally amended, although everyone, including myself, has treated it as if it had been. In order to put the record right, I direct that the description of works in the petition be altered so as to reflect the changed proposals. . The petition was considered by the Diocesan Advisory Committee at meetings held between December, 1976, and May, 1977, and the Committee decided by a majority vote to recommend to me that a faculty be granted, but that I should nonetheless consider holding a Consistory Court before doing so, The holding of a court was delayed because descendants of the Oxinden family put forward the contention that by reason of a faculty granted by one of my predecessors on the 21st July, 1681, the South Chapel was a private chapel vested in the family and that I had, therefore, no jurisdiction to entertain the present petition. In an endeavour to narrow the issues and thereby save both time and expense I convened two meetings in Canterbury which were attended by representatives of all concerned. One result of these meetings was that the present Petitioners presented a further petition under Section 1 of the Faculty Jurisdiction Measure, 1964, praying that the chapel be vested in the body in whom the Church is vested. This petition was not opposed by the descendants of the Oxinden family and I granted the faculty sought. This had the effect of resolving the issue as to jurisdiction and made it possible to proceed with the hearing of the case. At the second of the preliminary meetings I directed that documents and information be exchanged. This was not in fact done, but Mr Sampson, who has acted as spokesman for himself and his fellow Petitioners, said that he was well aware of what was going to be said against the proposals and offers of long or short adjournments which I made to Mr Sampson and to everyone else also appearing were declined. The Court sat in the south aisle of Wingham Church on Saturday, the 15th April, from about 10 a.m. until about 7 .30 p.m. 36 THE OXENDEN MONUMENT JUDGMENT, 1978 Mr Sampson presented the case for the Petitioners with marked ability; he is a Chartered Surveyor and a Clerk in Holy Orders; he would obviously have also been successful at the Bar. He called in support of the petition, himself (Vicar of Wingham since 1976); Mr Elgar (Churchwarden since 1949); the Right Revd. Lord Bishop of Dover (in whose area of our Diocese Wingham is situated), Mr Cyril Griggs, A.R.I.B.A. (Architect of Wingham Church since 1976) and Mr Brian Le Mar (Clerk of Works of Canterbury Cathedral). Mrs. Judith Shearms and Colonel Henry Brooke (both direct descendants of the Oxinden family of Wingham but by different lines) appeared to oppose the petition on their own behalfs and on behalf of other descendants. Mr Michael Nightingale, F.S.A. (Chairman of the Churches Committee of the Kent Archaeological Society), Mr John Newman, M.A., F.S.A. (Lecturer in the History of Art at London University and author of the two books relating to Kent in the Buildings of England series edited by Sir Nikolaus Pevsner and Mr Jonathan Currie (qualified as an Architect and member of the Committee of the Society for the Protection of Ancient Buildings) each gave evidence, which in its effect was to oppose the moving of the monument. At my request the Revd. David Naumann, Secretary of the Diocesan Advisory Committee, appeared to inform me of the proceedings of the Committee, and Miss Anne Oakley, M.A., Keeper of the Diocesan Archives, appeared to assist me with the results of her researches. Mrs. Elizabeth Maude, a member of the Congregation, who had not entered a formal objection, asked to be allowed to give evidence and, there being no objection from Mr Sampson, I heard her. She opposed the petition. During the course of the hearing I was provided with a plan of the Church, photographs of the monument and chapel, drawings identifying the various parts of the monument, a specification of works required for the movement of the monument prepared by Mr Griggs, an extract from Count,y Life of 2nd September, 1976, containing a photograph of the memorial to Sir George Oxinden and his brother Christopher in Surat, Maharastra, record of the proceedings of the Court of the Commissary General on the 16th and 21st July, 1681 (with translation of parts in Latin agreed between Mr Nightingale and Miss Oakley and vetted by the Venerable Bernard Pawley, Archdeacon of Canterbury), accounts for work carried out in the Church in about 1682, various wills and letters relating to members of the Oxinden family, a genealogical table of the family, and photographs of sculptures by Arnold Quellin and Grinling Gibbons in other Churches. I cannot and do not complain of the shortage of documents, but I should have welcomed a perspective or montage of the monument on the new site suggested and also a structural survey of that site. In the interests of completeness I should perhaps mention that long before this case arose I had visited and admired Wingham Church and that I have revisited it several times since then, that over the y ears I have been concerned in a number of cases in which buildings and structures have subsided in consequence of not being properly founded, and that, as a person interested in Indian History, I knew of Sir George Oxinden (in my small personal library he is mentioned in both the Cambridge and Oxford Histories of India, in Philip Woodruff's history of the Indian Civil Service Volume I The Founders and in 37 J. PHYSICK Dennis Kincaid's biography of Shivaji The Grand Rebel). I have been to Surat, but alas I did not see its Oxinden memorial while I was there. I am very grateful for the help which I have received in this case which must have involved everyone concerned in a great deal of time-consuming preparation. I am also very grateful for the courtesy and tolerance towards each other's opinions with which everyone has behaved. Ideally this should happen in all Court proceedings and certainly in the Courts of the Church, but it does not always, especially when people hold strongly divergent views. Wingham is very fortunate in having a large and beautiful church. Mr Nightingale in particular provided me with information as to its history. Much of it was built in the 13th century, when it was the centre of a College, consisting of a Master and six Canons, all ordained Priests. Medieval rules required that each Priest should celebrate holy communion once a day and that no altar should be used for celebration more than three times a day. It may be for that reason that the Church had three altars: a High Altar in the Chancel; an altar in a large chapel situated on the north side of the choir and of the eastern part of the nave (I am not clear whether there was at one time a north aisle) and an altar in a chapel at the east end of the south aisle, immediately south of the choir. This last chapel I shall refer to throughout as the 'South Chapel', irrespective of whether at any particular time there was an altar in it. The Oxinden family's connection with the Church began in the 14th century, when they owned estates near to Wingham and on their deaths, beginning with that of Richard Oxinden in Richard Il's reign, they were buried in the Church. After the Reformation the College was suppressed and its income seized by the State. The Church continued to be used, but its fabric was neglected for want of funds. In 1620 George Oxinden was born. He was a younger son of Sir James Oxinden, who was then apparently head of the family. George Oxinden joined the East India Company, who sent him to Surat where the Company had a 'factory', that is to say a trading centre, in Moghul territory. In 1661 George was knighted and became President of the Company at Surat. In January, 1664, Shivaji, and a Maharatta army forced the walls of Surat, whereupon the Moghul defenders retired to the citadel. The Maharattas began to sack the city and were resisted only by the English and Dutch merchants. The English sought to save not only themselves, but also some of the Mohammedan merchants. Shivaji sent a message to Sir George instructing him not to obstruct his troops, but Sir George drew up his handful of Sepoys (forerunners of the Indian Army) with drum and trumpet and is said to have replied: 'We are ready for you and resolved not to go away'. The Maharattas then decided to leave the English alone. After Surat had been re-occupied by the Moghuls, the Padshah (Emperor) Aurangzeb offered Sir George a gold vest, a horse and a sword, but he declined saying that such rewards were 'becoming to a soldier, but we were merchants'. The Emperor, however, granted a reduction in taxes to the Company and the Company presented Sir George with a chain of honour, which he accepted. In 1665 Portugal ceded the then largely uninhabited island of Bombay to 38 THE OXENDEN MONUMENT JUDGMENT, 1978 England as part of the dowry of Catherine of Braganza on her marriage to Charles II. In 1666 the Crown transferred the administration of the island to the Company and Sir George became the first English Governor of Bombay, while remaining President of Surat. Sir George died in 1669, without returning to England. His historical importance is not of the same order as that of Clive or of Warren Hastings, but he was one of the founders of the British Empire in the East and of modern India. Sir George appears never to have married. By his will he left £50 to the then Vicar of Wingham, £20 to each of the Vicar's children, £500 for the repair of the Church, £300 for the repair of nearby Adisham Church and £300 for the erection of a memorial in the Church to his father and to other members of his family. Sir George's brother Sir Henry, a Baronet, and Sir Henry's eldest son, Sir James, were executors of the will. £500 in 1669 would be worth many times that amount in today's money. It appears from the accounts that Sir Henry and Sir James in fact spent more than £500 on the repair of the Church. It may be inferred that much had needed to be done. [The Commissary General then referred to and quoted much of the record of the 1681 Consistory Court and of the then Commissary General's judgment.] There is no evidence to show [he continued] whether the south chapel was in use as such prior to the application to the Court, but there was not, of course, the same need for side chapels after the Reformation as there had been before. The Bishop of Dover suggested that the Oxindens may have been so powerful locally that they were able to get their own way; the implication being that the parishioners were coerced into parting with the chapel. There is, however, no evidence to that effect and I think it much more likely that the parishioners were delighted at having had their Church repaired free of charge and were perfectly content that the family should have the use of the chapel and become responsible for it. I think it plain from the Court record that the parishioners intended to transfer the freehold of the Chapel to the Oxindens, but I am very doubtful whether in law it was possible for them to do so. I am quite certain that today I cannot lawfully sanction alienation of the freehold of part of a Church and I think it unlikely that my predecessor had such power in 1681. I think he was prudent to end his Order with the saving words, which I have already quoted: 'In so far as in him lies and the law allows ... '! The Oxindens proceeded to construct the vault and to commission the monument. It is made of black and white marble; the black marble came from what is now Belgium and the white from Italy. It has a substantial square base with black scrolls on the corners which are surmounted by black ox heads. On the base stand four different cherubs with a tall white obelisk in the middle. The obelisk is decorated with fruit and flowers and surmounted by an urn. The monument consists of about 55 parts secured together, partly by iron clamps in a state of tension. Its core is probably of brick. It probably weighs about I½ tons. Apart from about two small rust stains the monument is in excellent condition. 39 J. PHYSICK Mr Elgar felt that the oxen were heathen in appearance and the Bishop considered that the whole monument is very secular. Obviously the oxen have a connection with the name and arms of the family. They are of friendly appearance! Mr Newman said that in 17th century religious symbolism cherubs were messengers from God and an obelisk was a symbol of eternity. Mr Newman believes that the monument was by the Dutch Arnold Quellin or by the English Grinling Gibbons or by both of them. They worked together in London between 1679 and 1684 and sculptures, which were undoubtedly by them, of which Mr Newman produced photographs, certainly bear resemblances to those on the monument. The monument was placed over the centre of the vault. Approaching from the west, there is a black step upwards in the chapel just before the monument is reached. The floor of the chapel both below and above the step was paved in black and white slabs. The chapel is entered from the west under a high arch. There is an east window and a south window in the chapel, which are of different design, but of the same height. The top of the south window has been lowered by filling in its upper part with bricks, which can be clearly seen on the exterior of the Church. Mr Sampson thought that the bricks were Elizabethan, but Mr Newman said that they could easily be of the 17th century. The monument is out of alignment with the centre of the arch, but in line with the centres of the windows. There are ornamental wrought-iron railings and a double gate at the western entrance to the chapel, wrought-iron railings between the main part of the choir and the chapel and an ornamental wrought-iron gate in a short passage leading from the eastern part of the choir to the chapel. Mr Elgar thought that the railings were given by Lady Capel Cure, a descendant of the Oxindens, in 1925, possibly in replacement of earlier ones, but Mr Newman said that they were probably of the 17th century. There are views into the chapel and of the monument from the Chancel steps, choir, western two-thirds of the nave and the south aisle. The chapel would seem to have remained substantially unchanged between the erection of the monument and the time of Lady Capel Cure, who paid for a small altar to be placed in front of its eastern wall, short altar rails to be provided to north and south of the altar and a little in front of it, and low wooden panelling, bearing Oxinden coats of arms, to be mounted on the south wall. Whether the former North Chapel was used as a chapel after the Reformation I do not know, but in the 1880s the western part of it was filled by a large organ and at some time the eastern part became a Clergy and Choir vestry. The vestry is entered by a door from the Choir; it contains some monuments, including one to Sir Thomas Palmer by Nicholas Stone (1624) on the east wall. The vestry is large and comparatively easy to heat. [The Commissary General then referred to the 1967 petition to remove the monument and continued] The present petition was, as I have already said, presented on 5th July, 1976. All the members of the Parochial Church Council voted in favour of it. Movement of the monument has not been discussed at Annual Parish Meetings, but the members of the Parochial Church Council are, 40 THE OXENDEN MONUMENT JUDGMENT, 1978 of course, elected by the congregation. At the hearing before me Mrs. Maude was the only member of the congregation to appear to oppose the petition; she preferred the monument to remain where it was and thought that it would be a waste of money to move it. The reasons for wanting to move the monument put forward by Mr Sampson and Mr Elgar and supported by the Bishop of Dover are pastoral. It was submitted to me by Mr Sampson that because the chapel is dominated by the monument, it cannot be used satisfactorily for the celebration of Holy Communion nor for any other religious purpose other than prayer and meditation. Mr Sampson and Mr Elgar explained that the chapel is not required for the administration of the sacraments at Family Holy Communion; the size of the congregation would not warrant its use for the purpose and since there are no lay assistants the administration is normally by the Vicar alone. If the monument were to be removed the chapel could be used for early morning Communion services on Sunday and for mid-week services. The priest celebrating would not have to throw his voice from the High Altar to the nave, the congregation attending would be closer together and a greater feeling of fellowship could be achieved. The chapel could be screened against the choir and possibly against the south aisle by plate-glass or by curtains, so making it easier to heat. Mr Sampson said that if the present Vicarage ceased to be available for Sunday school classes, a class could be held in the chapel. The Bishop said that in addition to Communion Services the chapel could be used for the Churching of Women, for sacramental confessions and for counselling. Mr Griggs considered that the monument could be taken to pieces, moved to the west end of the south aisle and re-erected safely. His estimate of the cost of work was £2,000 of which £300 was for contingencies. Mr Le Mar saw no difficulties in moving the monument. He thought that the work could be done by experienced masons employed by the Cathedral for about £1,000 and that £100 would have to be spent on new non-ferrous clasps. Mr Currie, on the other hand, spoke in some detail of the problem involved in dismantling. He considered that there was a distinct risk of damage occurring and on the basis of cost incurred in moving monuments in Wells Cathedral he thought a reasonable estimate would be £5,000. The proposed new position for the monument is over a vault belonging to a family other than the Oxindens. No information is available as to the bearing capacity of the vault or of the ground surrounding it. Mr Sampson suggested that re-inforced concrete would have to be used. Mr Currie said that a proper investigation was required. Mrs. Shearme, while sympathising with Mr Sampson's and the Churchwardens' wishes to meet pastoral needs, said how much she and the family would regret movement of the monument and their anxiety that it might be damaged. She questioned whether the pastoral needs could not be met in other ways within so large a church. Colonel Brooks also expressed family opposition, said that the monument was the headstone of the family vault and pointed out that the monument was still owned by the family, who would certainly expect it to be repaired properly should it be damaged. 41 J. PHYSICK Mr Griggs found the lack of alignment between the west arch and the monument unsatisfactory and he felt that present views of the monument were unduly restricted. Mr Newman said that it was a generally accepted principle that a work of art should remain in its original setting, with which it has an essential historical connection and which often has been designed so as to enhance it. He thought that the south chapel had been altered to increase the beauty of the Oxinden monument and that it did so. Mr Newman spoke of the artistic quality of the monument, of the impression which it had made at the time of its erection, and of the rarity of such sculptures. He said that the monument was of outstanding value to Kent and could hold its own with any late l 7th-century monument in England. In my opinion the monument has considerable interest in the context of local history and, on account of Sir George, in a wider context. I think that the existence of the Church in its present fine condition is in part due to the large sum of money bequeathed for its repair in the 17th century. I have no doubt that Mr Newman is right about the religious symbols on the monument, but I think that very few people would recognise that symbolism. I prefer not to attempt any conclusion as to the identity of the sculptor of the monument even on a balance of probabilities. I am sure, however, that the sculpture is of the standard set by Quellin and Gibbons. I think that the probabilities are overwhelming that the south window was lowered by bricking up in the 17th century and that the railings are of that Century. The latter may well have been refurbished and possibly the Coat of Arms added in 1925 by Lady Capel Cure, who, as a benefactor of the Church, would seem to have been a worthy successor to Sir George. I am satisfied that the monument, step, paving, railings and reduction in height of the south window all formed part of one artistic design executed in the 1680s. There is no evidence that either the former north chapel (now the Vestry) or the south chapel was used for the celebration of Holy Communion between the Reformation and the time when an altar was introduced into the south chapel. I find that for upwards of ten years those most active in the Church have wanted to remove the monument from the south chapel. I find that there is a pastoral need for a chapel for the holding of services likely to be attended by small congregations. I am quite certain that with the monument in the south chapel it is wholly unsuitable for the purpose, but that if the monument were to be removed it would be. I think, however, that other methods of meeting the pastoral need could be explored. One possibility might be to use the choir either in conjunction with the High Altar so that the setting would resemble say, that of a College chapel, or with a portable altar at the foot of the steps when a greater sense of intimacy could be achieved. Curtains could be provided by the screen to the nave and by the railings to the south chapel, which could be drawn across when the choir is being used as a chapel. Another possibility might be to use the Vestry as a chapel. The altar would have to be against the north wall, but, as far as I am aware, there could be no 42 THE OXENDEN MONUMENT JUDGMENT, 1978 doctrinal objection to that. So that the new chapel would not seem cut off from the remainder of the church, the existing solid door from the Choir could be replaced by a glass one. The new chapel might still act as a Vestry if suitable cupboards were to be provided for vestments; but, if necessary, a part of the west end of the chancel [sic, chapel] might be screened, either permanently or temporarily so as to form a new Vestry. I suspect that even as it is the Vestry would be a more suitable place for Sunday School classes and for counselling than a reconstituted south chapel would be. I am satisfied that, despite its age and weight, the monument could be moved, but I think that the possibility of its being damaged during the process is a real one. I am unable to judge which estimate of cost would prove to be the more accurate. The problem of supporting the monument on its proposed new site has not been investigated, but an investigation could still be carried out. Solving the problem could be costly. I sympathise with the very natural feelings of the descendants of the Oxenden family. I accept Mr Newman's evidence as to the value of the south chapel as a setting for the monument, as to the artistic merit of the monument and as to its County and national importance. I do not share Mr Griggs' concern that the monument is not aligned with the west arch. He is obviously right in thinking that less restricted views of the monument could be achieved if it were to be moved outside the chapel, but I am sure that it would not look as well as when seen through the railings in the chapel. In deciding whether to grant the petition I am exercising a discretion, which I must exercise judicially. I attach great importance to the wishes of the present congregation, but it is still my duty to take a long view - to hold the balance between the present and the future and possibly also the past. I am much impressed by the pastoral need for a chapel, but I am not convinced that use of the south chapel is the only way in which that need can be met. Historical interest, gratitude for past benefits and the feelings of the family whose monument is involved are factors proper for me to take into account, but certainly none is of an overriding character. The beauty of the monument in its original setting, its local and wider importance, the fact that it would not look so well elsewhere and the risk that it might be damaged if moved are I think major considerations. I have done my best to weigh all the evidence and submissions as carefully as I can. In the result I have reached the firm conclusion that the balance is heavily in favour of leaving the monument where it is and I, therefore, reject the petition. If I had thought that the petition should be granted, I would not have done so today, but would have adjourned the case for a full site investigation to be carried out, but such an investigation is not now required. 43 J. PHYSICK Before parting with the case may I say how glad I was to learn that the descendants and the learned Societies are together planning to set up a charitable trust for the maintenance of the monument. I do hope, however, they will think fit to invite the Vicar for the time being to be a trustee. I do hope that as a result of this case the congregation will take fresh looks at the Oxinden monument and at the south chapel and perhaps decide that they are really very fortunate to have them! ACKNOWLEDGEMENTS John Newey Commissary-General I am indebted to His Honour the late Judge John Newey, Q.C., and to the Registrar, Mr A.O.E. Davies, for permission to publish the Judgment; to the Revd. Canon David Naumann, Chairman of the Canterbury Diocesan Advisory Committee, for his assistance; to Mr Michael Nightingale of Cromarty, O.B.E., F.S.A., for permission to use his translation of the proceedings of the 1681 Consistory Court; and to Dr Nigel Ramsay, who supplied me with a copy of the proceedings. 44