Consecration and Control

by Philip Jones

‘The sentence [of consecration] … is definitive and operates in rem.  In consequence of the sentence, the building and with it the land on which it stands, becomes consecrated land, held to sacred uses and subject to the jurisdiction of this [ecclesiastical] court’.

Deputy Chancellor Newsom in St. John’s, Chelsea (1962) 2 All England Reports 850 at 852.

This is a bold assertion by an ecclesiastical judge, even for the early 1960s.   It suggests that, in a post-modern, secular state, the Church still has power to subject secular property to its own jurisdiction and purposes by a unilateral act of consecration.  Does not the owner of the property have some say in the matter? 

What if the bishop were to sneak round to your house and consecrate your front garden while you are out?  Does that mean you would be unable to sell or use your property except with the permission of the Church?

An ecclesiastical judge would be likely to deflect such a hypothesis with a jest or a sneer: of course no bishop would ever do such a thing!  However, the fact that a bishop could do such a thing indicates the first difficulty with the deputy chancellor’s celebrated dictum.

The case of Sutton v Bowden (1913) 1 Chancery 518 is the most detailed judicial examination of the legal effects of consecration.  It offers some guidance through the errors and confusions that have grown up around this subject.  

Sutton v Bowden concerned a hospital chapel, not a church.  The chapel was consecrated by the local bishop, apparently before anybody realised that consecration precluded non-Anglican worship.  (This was before sharing agreements were allowed.) 

The hospital’s executive or ‘house’ committee had sanctioned the consecration and invited the bishop to perform it.  The consecration was also authorised in writing by the trustees of the hospital site.  The title deeds of the hospital were endorsed with a memorandum of consecration.

Mr Sutton applied to the High Court (not the ecclesiastical court) for a declaration that the chapel could be used for non-Anglican worship, as well as Anglican worship.

The High Court refused a declaration.  It held that ‘the act of consecration was duly performed and the chapel has been effectively consecrated [because] the petition for the consecration was signed by trustees in whom the legal estate [of the property] was vested and the request to consecrate was made by … the house committee’ (p.549).

In consequence of this, the chapel could not be used for non-Anglican worship because ‘The effect of consecration is … to limit … the uses [of the consecrated property] to the ceremonies of the Church of England’.

Thus the High Court agreed with Newsom that consecration operates in rem.  However, it made clear that the consecration was valid (and so capable of operating in rem) because the legal owners of the property had given consent in the proper form.  This means that, absent statutory authority, consecration depends for its validity on the consent of the landowner, and not on the authority of the bishop who performs the act of consecration.

The chapel in Sutton v Bowden was private or trust property.  Places of public worship, by contrast, are now designated as such by statutory authority.  Statutory authority will override any requirement of consent by the landowner.

The statutory authority for a new church is now contained in s.41 of the Mission and Pastoral Measure 2011.  S.41(1) provides that a pastoral scheme may

(c) provide for a new church and for it become after …

[1] approval by the bishop, after consultation with the diocesan advisory committee and the pastoral committee, as suitable to be a parish church and

[2] its consecration

the parish church …

S.41(2) provides that ‘The designation by a pastoral scheme as a parish church of a building which … is not [already] a parish church shall not take effect unless and until it has been

[1] approved by the bishop, after consultation [as above] as suitable to be a parish church and …

[2] consecrated.’

Thus consecration can no longer constitute a parish church as such.  The authority of a statutory scheme is required.  The statutory scheme, not the consecration, creates the new parish church.  Consecration is merely a preliminary to the making of the statutory scheme. 

Indeed the provisions of s.41 suggest that the consecration of places of public worship is legally rather superfluous.  If churches are constituted by statutory authority and not by consecration, then what is the point of consecration?  Perhaps the practice is retained out of respect for its antiquity.

Sutton v Bowden must also cast doubt on the suggestion that consecration of a private or institutional chapel, even if done with the owner’s consent and in the proper legal form, confers ecclesiastical jurisdiction over the land.  As mentioned, the case was decided by the High Court, without any suggestion that the ecclesiastical court had jurisdiction.  

There is no doubt that common law recognises an ecclesiastical jurisdiction over churches (i.e places of public, as distinct from private, worship)  and churchyards, but it does not follow that consecration is the basis of the common law jurisdiction.

In the case of Griffin v Dighton and Davis (1864) 122 English Reports 767, Lord Chief Justice Cockburn held that ‘Churches in their origin were dedicated by those who erected them and gave the sites on which they were built for the purposes of religion and the worship of God’ (p.771).  He made no mention of consecration.  Indeed his dictum supports the view that it is the act of the donor in giving the property, and not the consecration of the property, that constitutes ecclesiastical property as such. 

Cockburn CJ further held that churches thus dedicated by their donors were ‘subject to the control of the ordinary’.  This further indicates that it is dedication by the donor, not consecration by the bishop, that confers ecclesiastical jurisdiction over property.  Like the visitor of a secular foundation, the ordinary’s jurisdiction is to ensure that the donor’s intentions concerning the property are being observed, and that the property is being used for its proper purposes.

Phillimore explains the mediaeval process of consecration thus:

‘After a new church is erected, it may not be consecrated without a competent endowment … Which endowment was commonly made, by an allotment of manse and glebe by the lord of the manor, who thereby became patron of the church.  Other persons … often contributed small portions of ground’ (Ecclesiastical Law, 2nd edition 1895, p.1388).

This account makes clear that, in canon law, consecration certified not only the church that was consecrated, but also the endowment that was given to support it.  To identify ecclesiastical jurisdiction only with consecrated land is therefore somewhat lopsided.  The ordinary must control the unconsecrated endowment as well as the consecrated church building. 

It is true, of course, that consecrated and unconsecrated Church property have different immediate uses.  The church building is for worship, while endowment property serves the ancillary purpose of maintaining the incumbent.  This may justify different regimes of control of church and endowment.  But church and endowment are both equally the property of the Church, donated for the purposes of the Church, and therefore subject to ecclesiastical jurisdiction.

If Newsom’s dictum is taken literally, it carries the absurd implication that unconsecrated Church property is not subject to ecclesiastical jurisdiction.  Yet Phillimore observed that ‘Properly speaking a faculty or licence should be obtained from the ordinary before alterations of importance are made in the parsonage-house or buildings’ (p.1263).  Parsonage property is, of course, unconsecrated.

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