Custom in English Ecclesiastical Law
by Philip Jones
Some cases in the old ecclesiastical courts concerned disputes between clergy over the right to officiate in a particular church or chapel, and the right to receive the fees due for such official duties. With no detailed statutory regulation of pastoral organisation and fees, such disputes could be difficult to decide, and often required an investigation of local custom.
Questions of custom tended to arise from disputes over money. An incumbent would plead a local custom in order to extract a fee from a parishioner. An impoverished curate would claim a customary right against the local incumbent in order to eke out a living from fees.
The case of Line v Harris (1752) 161 English Reports 54 concerned a dispute over which clerk was the lawful minister of a particular place of worship. The Court of the Arches had first to decide whether the place was a parish church or a chapel.
Having reviewed the evidence, the Court concluded that the place was a chapel of ease. This being the case, ‘as the vicar … had the cure of souls throughout the parish he might officiate in the chapel himself, as it appeared he did three times a year to preserve his title, and of common right the vicar had the nomination of the curate’ (p.58).
However, the Court acknowledged that this rule was not of universal application: ‘though of common right the nomination of the curate of a chapel of ease is in the [incumbent] … by custom or composition it might be in other persons’.
In Patten v Castleman (1753) 161 English Reports 74 and 143, the Rev Mr Castleman sued Mr and Mrs Patten for a marriage fee, even though they had not been married in his church or by him. He claimed that he was entitled to the fee by custom, as Mrs Patten was one of his parishioners.
The Court observed that ‘If … no law has established a fee for actual marriage, it can be demandable only by custom. If the custom is denied, a prohibition will go to try it at common law and it must be immemorial [thus very difficult to prove] … but if the custom is admitted then the spiritual court may proceed’.
Mr Castleman’s claim was rejected: ‘Clearly by common law this custom is not proved, for it is not sufficiently proved even by the ecclesiastical law, which requires a usage for 40 years’. Moreover, ‘[even] if it had been proved, the custom would be unreasonable, for no ecclesiastical law warrants … a fee where no service is done’. In the earlier case of Burdeaux v Lancaster (circa 1699) 88 English Reports 1242, a vicar claimed a customary fee for a baptism which he had not performed, again unsuccessfully.
The attitude of the ecclesiastical and secular courts to local customs was discussed by Rupert Bursell in ‘What is the Place of Custom in English Canon Law?’ (Ecclesiastical Law Journal, January 1989).
Bursell’s account makes clear that the ecclesiastical courts were readier to accept local custom than the secular courts. Mediaeval canon law required a relatively short period of duration for a custom to become legally enforceable. The period varied from 30 or 40 years (as in Patten v Castleman) to as little as 10 years. Common law was much stricter, prepared to enforce a custom only if it had existed from time immemorial.
Canon law was even prepared to accept custom contra legem, that is, custom which positively contravened a written law. Custom contra legem, by contrast, was anathema to English law. Thus custom could never contradict statute law, but if there was no statute, the courts were prepared to give legal effect to a custom, though there was always a tension between the secular and ecclesiastical courts as to the period of time required to establish a legal custom.
After reviewing the case law, Bursell concluded that ‘the ecclesiastical courts continued to apply the canonical principles as to custom’ long after the Reformation (p.17). Moreover, the secular courts acquiesced in this to some extent, because ‘a prohibition would not necessarily be issued’ when the ecclesiastical court enforced a custom of short duration, despite the much stricter common law test of custom.
Bursell’s account is interesting as a historical study, but ecclesiastical custom qua law is now almost non-existent. The detailed modern statute law leaves little scope for custom.
It is true that the 19th century pastoral legislation did not entirely remove disputes over customary fees. In Archdeacon of Exeter v Green (1913) Probate 21, the Archdeacon claimed that an ancient fee known as a procuration or proxy was legally due from each incumbent during his visitation. One of the incumbents, the Rev Mr Green, disputed the Archdeacon’s claim. The consistory court supported the archdeacon. The judgment is interesting to read, but procurations along with other ancient fees were subsequently abolished by the Ecclesiastical Jurisdiction Measure 1963, s.82(3).
The appointment of churchwardens is one aspect of modern ecclesiastical law where custom is still important. The Churchwardens Measure 2001 provides that, as a general rule, both churchwardens should be elected by the parishioners. It seems that the incumbent may join in the election but does not have a special casting vote (s.5(6)).
However, the 2001 Measure permits existing customs in particular parishes (s.11(2)). Thus if the incumbent customarily exercises his canonical right to appoint one churchwarden, the Measure permits this mode of election to continue. Likewise, the Measure permits a custom in a particular parish of electing one churchwarden only, or three or more.
The test of a custom under the 2001 Measure is fairly stringent by the standards of ecclesiastical law. To be valid the custom must have originated before 1925 (s.13(1)). Parishioners may vote to abolish a custom, but abolition requires the consent of any one with a customary right to appoint a churchwarden, other than the incumbent (s.12). The 2001 Measure is also subject to contrary provision in any local Act of Parliament or statutory scheme affecting a particular parish (s.11(1)).