Churchwardens and Chattels
by Philip Jones
It is generally supposed that churchwardens are the legal owners of the contents of their parish church, its furniture, plate and ornaments. They are said to hold these chattels as a corporation, or to be ‘quasi a corporation’ for the purpose of holding them.
Canon E1(5) seems to confirm this. It provides that ‘In the churchwardens is vested the property in the plate, ornaments and other movable goods of the church … [which], on going out of office, they shall duly deliver to their sucessors …’.
There is apparent support for canon E1(5) from the Mission and Pastoral Measure 2011, schedule 6.3(3) (successor of the Pastoral Measure 1983) which refers to movable property used for the purposes of a church or churchyard vested in the churchwardens. However, this provision envisages that movable property may vest in the parochial church council as well.
There is also support from Blackstone’s Commentaries:
‘Churchwardens … are taken, in favour of the church, to be for some purposes a kind of corporation at the common law: that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish’ (1, 382).
However, it should be noted that this dictum does not hold that all church chattels per se vest automatically in the churchwardens.
Phillimore states that ‘the [churchwarden] has not only the custody but also the property of the goods belonging to the church and may maintain [legal] actions for them’ (Ecclesiastical Law, 2nd edition 1895, p.1480). However, he says earlier that ‘churchwardens are a corporation for the purpose of the custody of the ornaments of the church’ (p.1465).
There are difficulties with the corporate status of churchwardens. It is said that a corporation sole can never own chattels, because chattels, unlike land, can never be without a legal owner. Thus an incumbent cannot ex officio own chattels. A corporation aggregate, such as a cathedral chapter, may own chattels, because it has perpetual succession and so ‘never dies’. This suggests that churchwardens cannot hold chattels unless they satisfy the definition of a corporation aggregate.
In Fell v Official Trustee (1898) 2 Chancery 44, the Court of Appeal expressed doubts about the corporate status of churchwardens:
‘It is said that [churchwardens] are a corporation. [But] there is an ambiguity about that … it is [not] made out by the custom of London, or by any Act of Parliament … that they are a corporation in the full sense of the word. They are in the City [of London] a corporation for the purpose of holding land and for the purpose of the devolution of property but … they are [not] … a person in point of law … nor can [they] sue or be sued by any corporate name’ (p.51).
Another judge in the same case stated that ‘churchwardens are not a corporation. They are … quasi a corporation for certain purposes and in the City of London they are a corporation for the purpose of holding lands: but beyond that they are only officers …’ (p.59).
An anonymous early case held that ‘all the parishioners are the [corporation] and the churchwardens only a name to sue by in personal actions: but the property is in the parishioners’ (22 English Reports 174).
Even if churchwardens are a corporation capable of holding chattels it does not follow that the movable contents of churches and churchyards automatically vest in them. It is arguable that the donors, or their heirs, are the rightful owners. In the case of many ancient chattels, the donors and their heirs may be unknown. If it is acknowledged that the freeholds of churches and chapels can still vest in the heirs and successors of their original donors, it is a bold assertion that title to chattels automatically vests in the churchwardens.
It is further arguable that canon E1(5) could not, proprio vigore, defeat the claims of lay donors of property or their heirs, under the rule associated with Middleton v Crofts (1736) 26 English Reports 788 that canons may not ‘bind’ the laity.
The parochial church council (‘PCC’) also has a claim on church chattels. It is the successor of the parish vestry. It comprises the representatives of the parish. The Parochial Church Council (Powers) Measure 1956 provides that every PCC is a corporation with perpetual succession (s.3). It is therefore capable of owning chattels.
The Church courts, under the influence of the late Chancellor Newsom, have stressed that all dealings with church chattels, like dealings with consecrated land, must be subject to the faculty jurisdiction.
In St. Gregory’s, Tredington (1971) 3 All England Reports 269, Newsom followed canon E1(5) in holding that the churchwardens were legal owners of some valuable communion wine flagons. However, he also held that a sale by the churchwardens, even though they are the legal owners and selling to a bona fide purchaser, would be void without the consent of the PCC and the authority of a faculty. Presumably the justification for this strictness is that a faculty is a requirement of law so no purchaser may plead ignorance of it.
In St. Mary’s, Balham (1978) 1 All England Reports 993, Chancellor E Garth Moore described the churchwardens as ‘temporary custodians’ of church property only (p.996), thus apparently contradicting canon E1(5).
St. Anne’s, Wrenthorpe (1994) 2 Weekly Law Reports 338 concerned the disposal of 33 redundant items of church furniture. The consistory court held that all the items were legally the property of the churchwardens, notwithstanding their different provenance. Citing canon E1(5), the court asserted the churchwardens’ title in the strongest terms: ‘the items … are not held by the [churchwardens] as custodians or as trustees. They are the owners of the items’ (p.347). Their ownership is ‘legally unconditional’ (p.346).
These difficulties and inconsistencies over the churchwardens’ title may not matter much in practice, as there appears to have been remarkably little controversy about the ownership of church chattels. The ecclesiastical judge in St. Mary’s, Faversham (1986) 1 All England Reports 1 stated that he was unaware of any case in which the secular courts had restrained an ecclesiastical court from deciding ownership of chattels. There have been no reported cases since then. Dealings with chattels have been left to the Church courts.