by Philip Jones
The right to occupy a particular pew in the parish church may be acquired by
(1) Act of Parliament or other statutory authority or
There may also be a right to occupy a particular seat or stall ex officio, in which case neither statute nor faculty will be required. It was held in the case of Spry v Flood (1840) 163 English Reports 438 that ‘In an ancient parish church … the rector would be entitled … according to the common law … to the chief seat in the chancel, whether he be [lay] rector, or spiritual rector only, unless some other person … [could] prescribe for it … from time immemorial’ (p.438), i.e by proving an immemorial custom recognised at common law. However, ‘The rector has [no] common law right to any particular pew in a new church’ (p.441), i.e a church constituted by statutory authority.
Cathedral officeholders will have ex officio rights to occupy particular cathedral stalls, under the cathedral’s own constitution.
While ex officio rights to occupy particular seats in ancient cathedrals and churches have existed since mediaeval times, counsel in Spry v Flood suggested that ‘the right to pews did not commence until the Reformation’ (p.439). Pre-Reformation seating arrangements for lay worshippers were probably rather informal.
In the 18th and 19th centuries pew rights were quite often conferred by private Act of Parliament.
In the case of St. Mary’s, Banbury (1987) 1 All England Reports 247, a faculty was sought for the removal of pews in the church. The church had been built pursuant to an Act of 1790. The Act provided that the trustees of the church were to allot ‘such one pew or seat as shall be sufficient to contain commodiously [the] subscribers’, those who had paid for the church building (p.252). All such pews were to vest in the original subscriber’s heirs, not merely the subscriber personally.
The successors in title of the original pew-holders objected to the removal of the pews, asserting their title from the Act of 1790.
The Court of the Arches agreed that ‘no faculty may destroy the statutory rights’ (p.253) and that, accordingly, the courts had no power to permit the removal of the pews without the pew-holders’ consent.
The New Parishes Acts and Church Buildings Act Amendment Act 1869 provides that pew rights acquired under the 19th pastoral legislation and later surrendered to the bishop or the Ecclesiastical Commissioners should be subject to the common law governing pews and sittings.
The Mission and Pastoral Measure 2011, s.41(7) provides that a pastoral scheme may determine claims to sittings in respect of a designated parish church (though not in other places of worship). A pastoral scheme has statutory authority and so is capable of overriding an earlier statutory right to a pew, or a pew faculty.
Besides statutory rights, pew rights may be granted by faculty. If the faculty is extant, the right to occupy the pew should be easy to establish. If no faculty can be found, the claimant has to prove occupation of the pew sufficient to satisfy the court that a faculty was granted but was later lost. This is the doctrine of presumed lost faculty.
Sir John Nicholl, Dean of the Arches in the early 19th century, explained the nature of pew faculties in two cases
(1) Parham v Templar (1821) 161 English Reports 1401 and
(2) Fuller v Lane (1825) 162 English Reports 348.
Nicholl held that ‘an exclusive right [to a pew] can only be
 in virtue of a faculty, or
 by length of time which presumes a faculty’ (Parham, p.1404).
Payment of a pew-rate or pew-rent does not confer an exclusive right to a pew (p.1402).
It seems that the ecclesiastical court has no jurisdiction to grant a pew faculty to a non-parishioner: ‘no faculty is deemed, either here or at common law, good to the extent of entitling … a non-parishioner to a seat’ (Fuller, p.352). This suggests that a faculty granted to a parishioner will automatically lapse, or at any rate will cease to be enforceable, if the parishioner moves out of the parish, though the modern definition of a parishioner is not limited to persons resident in the parish.
Pew faculties were controversial. They were elitist, tending to exclude poorer parishioners and encourage them to defect to dissenting chapels. Sir John Nicholl stated that ‘[pew] faculties … have certainly been granted in former times with too great facility’ (Fuller, p.352). He observed that ‘By the general law … all the pews in a parish church are the common property of the parish … for the use in common of the parishioners … so as best to provide for the accommodation of all’ (p.350).
Disputes over pew rights were formerly decided by the ecclesiastical courts. A parishioner could enforce a pew right by an action for ‘perturbation of seat’. However, this ecclesiastical jurisdiction was abolished by the Ecclesiastical Jurisdiction Measure 1963 s.82(2). Thus a pew right can now be enforced only in the secular courts, if at all. The secular courts have enforced pew rights based on a presumed lost faculty, as the following cases demonstrate.
Phillips v Halliday (1891) Appeal Cases 228.
The claimant and his ancestors had occupied a particular house in the parish since 1680. There was evidence of occupation of the pew by the ancestors. They had repaired it and kept it under lock and key since 1819, a period of 70 years.
The House of Lords agreed that this evidence was sufficient to presume that a lost faculty had once been granted to an earlier owner of the house and his heirs.
The House of Lords approved Lord Stowell’s dictum that ‘The strongest evidence of [a lost faculty] is the building or repairing [of a pew] time out of mind’ (p.233). However, Lord Stowell did not say that evidence of repair is essential. Evidence of other acts of ownership may suffice.
‘Time out of mind’ refers to living memory only (as distinct from immemorial custom, which runs from 1189). Possession is a fact, not a law or custom. The claimant had to prove possession for a period longer than any living person could remember. The period of 70 years was deemed sufficient in this case. Reference was made to a case where a possession of 36 years was accepted as sufficient.
The House of Lords also held that, where repair or other acts of possession are proved, ‘the fair inference … is that that was not the commencement of this dealing with the pew, but that the pew had been in the possession of the family prior to that time …’ (p.230).
Although there was no documentary evidence of faculty in the claimant’s case, the church books referred to a transaction of 1680 when his predecessor in title had apparently ‘bought’ a pew with payment to the vicar and churchwardens. The right to occupy a pew may not be bought or sold at common law. (Perhaps it would constitute the sin of simony.)
The House of Lords accepted that ‘a transaction of that sort … could have no validity’ (p.235), but still it did not preclude the subsequent acquisition of a lawful title to occupy the pew.
Stileman-Gibbard v Wilkinson (1897) 1 Queen’s Bench 749
An incumbent and churchwardens sought a faculty to put new seats and stalls in the chancel. Mr Gibbard objected. He claimed an exclusive right to use the site of the proposed stalls for attending divine service. He therefore applied to the High Court for an order restraining the faculty proceedings in the ecclesiastical court.
Mr Gibbard’s claim was rather more than a mere right to sit in a particular pew, or pews, to the exclusion of others. He claimed ‘an exclusive right in the nature of an easement to use the sites … and for that purpose to have, erect and use pews and seats thereon’ (p.750, emphasis supplied).
Mr Gibbard’s title to the pew sites was derived from his ownership and occupation of a particular house in the parish, which had been built in the 1690s. In 1871 the existing pews were replaced by chairs. The woodwork of the old pews was removed to Mr Gibbard’s house. In 1885 temporary wooden platforms were placed on the sites, apparently on the authority of the incumbent and churchwardens. Mr Gibbard protested at this but did not take legal action.
The High Court upheld Mr Gibbard’s claim to the pew sites, and granted a prohibition. It held that the removal and replacement of the pews in 1871 ‘was an act of ownership … in conjunction with [Mr Gibbard’s] undisturbed possession during the period of legal memory, [sufficient] to prove [his] right’ (p.760). Mr Gibbard’s right took the form of a presumed lost faculty granted to a previous owner of his house.
The Court held that mere undisturbed possession of the pew is not enough to establish a presumed lost faculty. The claimant must ‘shew some acts of user, or assertion of proprietary right, in addition to possession’ (p.758). Mr Gibbard had not been able to prove repair. However, following Phillips v Halliday, lack of evidence of repair was not fatal to his claim. He would only have had to prove repair ‘if repair had been necessary’ (p.759).
In 1850 the then existing pews had been re-lined with baize covers by Mr Gibbard or a predecessor in title. However, the Court held that this did not constitute repair or indeed an act of ownership, notwithstanding its permanent character.
It was suggested that Mr Gibbard had abandoned his right to the pews by removing them in 1871. The Court rejected this. By replacing the pews with chairs Mr Gibbard had merely ‘alter[ed] his mode of enjoyment of the right to sit in that part of the chancel … But he did not discontinue his enjoyment’ (p.761). The law will not conclude that a legal right has been abandoned without proof of an intention to abandon it.