Ecclesiastical Sequestration

by Philip Jones

Halsbury’s Laws of England, volume 14 (the 4th edition)

Sequestration is the administration of the estate of a benefice otherwise than by the incumbent.  It is ‘a process … whereby the profits and income of the benefice … are ordered to be taken by … the sequestrator and to be applied in the manner required by the circumstances of the case …’ (para 892).

There are two types of sequestration:

(1) a creditor’s sequestration and

(2) the bishop’s (or ordinary’s) sequestration.

Creditor’s Sequestration

This occurs when an incumbent is declared bankrupt, or has an unsatisfied judgment debt entered against him.

Sequestration is required in such a case because of ‘[the] peculiar kind of interest which a parson has’ (Meredith (1879) 11 Chancery Division 731 at p.733)

‘The estate [of a benefice] cannot vest in the [trustee in bankruptcy or receiver] because he is a layman: it is an estate which can only be held by a clerk.  But then the law is not to be defeated by that circumstance.  It says that the profits of the living are applicable for the payment of creditors, that the [trustee / receiver] has a right to issue a sequestration, which remains operative so long as the creditors are unpaid’.

Sequestration is effected by a order from the secular court to the bishop, requiring him ‘to enter into the benefice and the church and take and sequester them into his possession … until he has levied debts, costs and interest out of their profits’ (para 895).

Sequestration therefore gives the bishop a right of possession of the benefice estate.  However, possession extends only to the benefice glebe and tithe, not to the official residence (para 913).  Even though insolvent, the incumbent remains in office and continues to be responsible for the ecclesiastical duties of the benefice.  He therefore remains subject to the duty of residence on benefice, and this requires possession of the parsonage.

Once in possession the bishop appoints a sequestrator.  Thus the bishop acts under an order from the secular court, but the sequestrator acts under an order from the bishop.  The ecclesiastical sequestrator has no direct relationship with the secular court.

However, a sequestrator can bring an action ex officio ‘to the same extent as the incumbent might have done if the benefice had not been under sequestration’ (para 915).

The bishop remains responsible to the secular court for the sequestration.  However, the creditor’s claim on the benefice is subject to the Church’s jurisdiction.  The creditor has no control over the bishop’s choice of sequestrator.  If the incumbent is suspended from office as a result of ecclesiastical disciplinary proceedings, the creditor loses any rights over the benefice property (para 899).

The reason for this rule is, that if the incumbent is suspended from office then he ceases to be entitled to the benefice profits.  This means that the creditor also ceases to be entitled, since he claims through the incumbent (para 902).

If the incumbent is suspended, this also means that the creditor loses his place in the queue for payment of debts.  A later sequestration, at the behest of another creditor, will have priority over the earlier sequestration that was lost because of the suspension.

The same consequences apply if the incumbent is moved to another benefice or ecclesiastical office instead of being suspended.  However, the incumbent is not permitted to accept a new office without the permission of both the bishop and the sequestrator (para 921).

If a creditor’s sequestration continues for six months, the bishop must assume responsibility for the ecclesiastical duties of the benefice (para 901).  This means that he can appoint a curate and also ‘inhibit’ the incumbent from officiating in church.  However, this does not assist the creditor, because the curate’s stipend is payable out of the sequestration and has priority over the debt owed to the creditor.

Bishop’s Sequestration

This is of two types:

(1) disciplinary and

(2) due to a vacancy in the benefice (para 905).

A bishop’s sequestration may be issued under various common law and statutory powers in respect of various disciplinary offences of the incumbent, including failure to reside on benefice, accepting secular employment and failing to repair benefice buildings.  A sequestration will issue if the incumbent is suspended from office as a result of disciplinary proceedings.

This time the bishop issues the sequestration, not the secular court.  A disciplinary sequestration may be subject to an appeal to the Archbishop.

If a sequestered incumbent has ex officio rights of presentation to another office, these are exercised by the bishop of the diocese in which the vacancy occurs, not by the incumbent’s own bishop or by the sequestrator (para 920).  However, a sequestered incumbent retains his right to appoint the parish clerk jointly with the parochial church council.

In a vacancy, as distinct from a disciplinary case, the sequestrators are ‘to account for the net balance [of benefice profits] to the succeeding incumbent, who may maintain an action against the sequestrators for the balance’ (para 910).

Although the general rule is that sequestration does not give the bishop possession of the official residence of the benefice, the Pluralities Act 1838 empower the bishop to enforce the incumbent’s delivery of possession to a curate, if the incumbent has been suspended from office (para 915).

Also, during a vacancy, the sequestrators must provide for ‘the care, custody and upkeep of the residence’ which presumably requires a degree of possession (para 911).

Bonaker v Evans

(1850) 117 English Reports 840

This concerned a bishop’s sequestration.  The bishop order sequestration of the incumbent’s benefice under a statutory power.  He was therefore acting of his own motion, and not in obedience to an order of the secular court.  His reason for doing so was that the incumbent has neglected to reside on his benefice, in breach of the bishop’s order to do so.

However, the secular court held that the sequestration was void.  It accepted that the bishop was ‘the proper authority to decide whether there has been a non-compliance with [his] order to reside’ (p.844).  However, this power was still subject to the requirement of natural justice that the incumbent should have a fair opportunity of answering the complaint of non-residence.

In this case natural justice had not been done to the incumbent.  The bishop had ordered him to reside, and had threatened sequestration, but the complaint of non-residence had not been made clear to him, and he had not been invited to rebut the complaint.

The requirement of natural justice arose because of the nature of the sequestration proceedings.  Was the bishop’s sequestration a ‘criminal’ punishment of the incumbent for the offence of non-residence?  It so, he was entitled to be properly heard before being punished.  Or was the sequestration merely a ‘civil’ remedy of enforcement of the incumbent’s acknowledged duty to reside on his benefice?

The court decided that it was both: ‘although one of the objects of … sequestration may be to enforce future residence, another clearly is to punish past delinquency’ (p845).  Also any disciplinary proceedings could ultimately result in the incumbent’s loss of his benefice, and therefore ‘certainly must be treated as penal’. 

Sequestration Today

The account in the 4th edition of Halsbury’s Laws suggests that there is extensive case law and statute law concerning sequestration.  Volume 34 of the very recent 5th edition of Halsbury’s Laws, published in 2011, makes only brief reference to creditor’s sequestration and concentrates on bishop’s sequestration (paras 698-714).  However, it notes that ‘writs of sequestration may still be applied for in the civil courts’ (para 669, note 3).  Thus it would seem that the old law remains in force.

However, the law concerning sequestration can be of little practical use today, beyond looking after the parsonage house during a vacancy.  This is because modern incumbents are no longer the legal owners of the property that was subject to sequestration.  S.15 of the Endowments and Glebe Measure 1976 provides that all benefice glebe should vest in the local diocesan board of finance.  Hence the incumbent has nothing left to sequester.  The incumbent retains a nominal freehold of the official residence, but the residence was always exempt from a creditor’s sequestration.

The Miscellaneous Provisions Measure 1992 confirms that the bishop has power to appoint the churchwardens, and other persons if he wishes, as sequestrators during a vacancy in the benefice (s.1).  Now he merely appoints them.  A formal writ of sequestration is no longer required.

The extensive law concerning sequestration reminds us how the status of incumbents has changed in recent decades.  Modern incumbents resemble salaried employees, with fixed stipends and other ‘terms of service’.  Their predecessors, by contrast, were really self-employed farmers, men of property who lived off the rents and profits of their estates.

Modern incumbents share some of the insecurity that attends secular employment.  They may be made redundant in the course of a pastoral reorganisation.  The bishop may also, in effect, withdraw the parson’s freehold by suspending the patron’s right of presentation to a vacant benefice (Mission and Pastoral Measure 2011, s.85).  Any ‘incumbent’ appointed while a suspension is in force is merely a licensee of the bishop.

Incumbents formerly had much greater security of tenure.  However, security of tenure did not guarantee security of income.  The incumbents of former times could not be made redundant like employees, but they suffered all the insecurities of the self-employed.  (This was long before farmers received state subsidies).  A bad harvest, or some other misfortune, could bankrupt the self-employed incumbent through no fault of his own.  The large number of reported cases on creditor’s sequestration may give the impression that many incumbents were feckless, or even dishonest.  This is unfair.