Ecclesiastical law

Month: February, 2013

Ecclesiastical and Environmental Jurisdiction

Until the mid-19th century the only public jurisdiction to which churches and churchyards were subject was that of the Church courts.  The 19th century saw the introduction of laws regulating the environment and public health, which were enforceable by secular authorities.  Thus for the first time the Church courts had to share their jurisdiction with the secular authorities.

This division of jurisdiction between Church and state over the same property caused confusion which has still not been fully resolved. 

The confusion first becomes apparent in the case of Lee v Hawtrey (1898) Probate 63.  The case was decided by Dr. Tristram, the last surviving ‘Doctor’ of Doctors’ Commons (and so perhaps reluctant to accept any loss of ecclesiastical jurisdiction), sitting as Chancellor of London.

Two churchwardens were served with a government order requiring them, on sanitary grounds, to remove all human remains buried under the floor of their church, and to rebury them in a cemetery.  The work was to be executed by the churchwardens to the satisfaction of a local sanitary officer.

The churchwardens complied with the order.  They declined to request a faculty from the Church court.  They thought a faculty was unnecessary, as they were acting under the order of the secular authority.  However, Chancellor Tristram disagreed.  He pronounced the churchwardens guilty of an ecclesiastical offence.

This was harsh to the churchwardens.  They had not acted on some private whim, but on receipt of an order-in-council (which, as such, would have been approved by Queen Victoria herself, the Supreme Governor of the Church).  The order was addressed to them, not to the Church court.  Had they declined to obey it they might have been subject to proceedings in the secular court.

The order had been made under s.23 of the Burial Act 1857, an Act passed 40 years earlier.  S.23 conferred power on the Home Secretary to order

‘churchwardens or [others] … hav[ing] the care of any vaults or places of burial [to] prevent … them from becoming or continuing dangerous or injurious to the public health’.

However, the Chancellor maintained that ‘the ultimate care of and control over the … remains buried in the church … is by ecclesiastical law vested, not in the churchwardens, but in this [Church] court’ (p.71).: and (p.71).

This is an accurate statement of the ecclesiastical common law.  But what about s.23 of the 1857 Act?  The Chancellor’s view was that s.23 was not worded with sufficient clarity to ‘transfer … the exclusive jurisdiction which has been vested [by common law] in the ecclesiastical courts for centuries over … churchyards and the bodies buried therein’.  Thus any order under s.23 remained subject to the overriding ecclesiastical jurisdiction.

On this basis, the Chancellor concluded that ‘it was the duty of the churchwardens, on receiving the order … assuming it to be … valid, to bring it to the notice of the Court for its direction by faculty as to the mode in which effect should be given to it’

This interpretation of s.23 is questionable.  If Parliament had intended that an order under s.23 was to be made subject to the faculty jurisdiction it would have made sense to provide that the order be sent to the ecclesiastical court directly, rather than to the churchwardens.

The Chancellor’s implied suggestion that clear words excluding the ecclesiastical jurisdiction were required in the 1857 Act is hard to reconcile with the Court of the Arches’ decision in Phillimore v Machon (1876) 1 Probate Division 481.  That case concerned the prosecution of a layman (Mr Machon) in the ecclesiastical court for a particular offence.

It was admitted in Phillimore v Machon that the ecclesiastical jurisdiction to try the offence had never been expressly abolished by Act of Parliament.  However, the Court of the Arches held that the jurisdiction had been inferentially abolished by a particular Act of Parliament.  This Act had conferred criminal jurisdiction on the secular court.  By conferring jurisdiction to try the offence on the secular court, Parliament had implicitly withdrawn or abolished the jurisdiction of the ecclesiastical court to try the offence.

The decision in Phillimore v Machon supports the conclusion that the 1857 Act, though it did not expressly limit or abolish the ecclesiastical jurisdiction, did so implicitly, by creating the secular jurisdiction over matters of public health.

The Ecclesiastical Courts Jurisdiction Act 1860, which abolished ecclesiastical jurisdiction to punish brawling in church and churchyard, contains an express saving of the ecclesiastical faculty jurisdiction: ‘nothing herein contained shall limit, restrain or abolish the power possessed by the ordinary over the fabric of any church or … churchyard’ (s.7).

The 1860 Act was passed just three years after the Burial Act.  It is arguable that, if Parliament had intended that the Home Secretary’s powers under that Act should be subject to ecclesiastical jurisdiction, it would have included a provision similar to that in the 1860 Act.

For these reasons it is argued that s.23 plainly does empower the Home Secretary to order the removal of human remains from churches and churchyards without a faculty.  It refers to churchwardens in their capacity as officers of the parish and as occupiers at common law of church property in the parish.

Of course, s.23 by no means abolishes all ecclesiastical jurisdiction over churches and churchyards.  It merely asserts a secular responsibility for public health.  The Chancellor complained that the order in this case denied the ecclesiastical court the opportunity to decide ‘whether such wholesale removal is necessary, or whether sanitation might not be effected at much less cost to the parish by concreting the floor of the church, or by a partial removal’ (p.71).

However, it is a strange suggestion that public health is a proper subject of ecclesiastical jurisdiction, or that the ecclesiastical court is better qualified to decide matters of public health than the secular government.

Having asserted his jurisdiction, the Chancellor rather lamely agreed with the Home Secretary that all the remains should be removed.  The proceedings against the churchwardens were therefore dismissed, but they still had to pay costs.

As well as asserting his common law jurisdiction, the Chancellor made dubious use of an earlier case on s.23 of the 1857 Act, Foster v Dodd (1866) Law Reports 1 Queen’s Bench 475, to support his conclusion that the churchwardens’ action was unlawful.

Mr Foster owned land which contained human remains.  The land had been closed for burials some years before.  Mr Foster put timber, bricks and rubbish on his land.  The Home Secretary then obtained an order under s.23 requiring Mr Foster to remove the rubbish etc.  The order did not require the removal of any human remains. 

Mr Foster failed to comply with the order.  The Home Secretary then ordered the churchwardens, including Mr Dodd, to carry out the order.  They entered Mr Foster’s land and did so.  Mr Foster sued them for trespass.

The court (which was, of course, a secular court, not an ecclesiastical court) held that the churchwardens had trespassed because the order was ultra vires the 1857 Act.  The Act applied to ‘places of burial’.  The court decided that Mr Foster’s land was not a place of burial, even though it contained human remains.  It was true that it had once been a place of burial, but it had ceased to be so.

The land had previously been leased to Bridewell Hospital, which used it for the burial of former inmates.  The Bridewell surrendered its lease to the freeholder, who subsequently granted a new lease to Mr Foster.  The court decided that the land had ceased to be a place of burial when the Bridewell surrendered its lease.  By the time of the Home Secretary’s order the land was mere private property.

By thus limiting the meaning of the term ‘place of burial’ in the 1857 Act, the court in Foster was seeking to protect private property from arbitrary state interference.  There are vast areas of land in private ownership which contain human remains.  If private property were brought within the definition of a place of burial the Home Secretary would enjoy considerable power over the owners.  Rights of property were  more highly esteemed in the 19th century than they are today.  (As the court noted, private land containing human remains would still be subject to the common law prohibiting nuisance and indecent inteference with the dead).

The court held that s.23

‘appl[ies] only to vaults and places in the care of persons for the purpose of burial, that is, in the care of persons appropriating them, at the time the Act was passed, to the purpose of burial’ (p.486). 

Thus a distinction was drawn between 

(1) dedicated places of burial, which were subject to s.23, and

(2) mere private property which happened to contain human remains , which was subject only to common law liability (nuisance etc).

The distinctions between Foster v Dodd and Lee v Hawtrey are clear: 

(1)  Foster concerned private property, whereas Lee concerned a church, a public place. 

(2) The churchwardens in Foster had entered on private property which did not belong to them, those in Lee were the lawful occupiers of their church. 

(3) Foster was an action for common law trespass, Lee concerned an alleged ecclesiastical offence. 

(4) The position of the ecclesiastical court in Lee was obviously not comparable to that of Mr Foster.

Health and Safety in the Ecclesiastical Courts

Until the mid-19th century the only public jurisdiction to which churches and churchyards were subject was that of the ecclesiastical courts.  The 19th century saw the introduction of laws regulating the environment and public health, which were enforceable by secular authorities.  Thus for the first time the ecclesiastical courts had to share their jurisdiction with secular authorities.

The confusion that this split jurisdiction caused, first apparent in the case of Lee v Hawtrey (1898) Probate 63, has still not been fully resolved.  The ecclesiastical court which decided Lee was clearly reluctant to admit secular authority over Church property.  In recent times, by contrast, a desire to co-operate with the secular authorities has resulted in the ecclesiastical courts seeking to do their job for them.

In St. Edburga’s, Abberton (1962) Probate 10 the Minister of Aviation asked the local consistory court to order the removal of a church spire, on the ground that it constituted a danger to low-flying aircraft.  The parishioners did not object.  However, the court refused a faculty.  It considered that the safety risk was not great enough to justify the removal of the spire.  The Aviation Minister appealed.

The Court of the Arches reviewed the evidence and concluded that the consistory court had been wrong about the risk to aircraft.  It held that the court should have considered ‘both the likelihood of accident and also the degree of injury should an accident occur’ (p.17).  The Minister’s appeal was allowed and the spire was removed.

Neither of the worshipful judges involved in the case seem to have appreciated the incongruity of a Church court deciding a question of aviation safety.  Yet such a question was surely a matter for the secular authority to resolve, either by negotiation with the parishioners, whose spire it was, or by the use of compulsory powers.

In St. Mary’s, Woodkirk (1969) 1 Weekly Law Reports 1867, the local authority wished to use part of a churchyard for road-widening.  A faculty was granted, even though it was opposed by both the vicar and the parochial church council, and involved the disturbance of no fewer than 191 graves.

The ecclesiastical court justified the faculty in a lengthy purple passage, which began ‘[The Church has] a mission … If the Church is ever to regain the imagination of the people and regain the place she once held in their affections, if she is ever again to be able to speak to people with that old authority … she must first be seen to be true to her mission and doing the job entrusted to her …’ (p.1875).

The court held that the essential question over the road-widening was ‘What is the duty of the Church?’  The road-widening was clearly in the public interest.  There was ‘no feasible alternative’.  It was therefore the Church’s duty to grant the faculty.

It may be true that the Church ought to co-operate in a development that serves the public interest.  However, the ecclesiastical court’s analysis of the Church’s mission and duty was arguably somewhat flawed.  The provision of roads and other amenities, however desirable they may be, is no part of the Church’s mission.  The true question is not ‘What is the duty of the Church?’ but ‘What is the function of the Church?’.

The Church’s function is the administration of religion.  Road-widening is the exclusive responsibility of the secular authorities, and they possess compulsory powers to support this.

Referring to a draconian alternative proposal to effect the road-widening, the ecclesiastical court stated that ‘To be the cause of dispossessing 26 families form their homes and adding [substantial cost] … would be wrong and cannot be reconciled with the duty of the Church towards mankind’ (p.1876).

Yet if this had happened, the secular authorities, not the Church, would have been the cause of it.  The court seems to have overlooked the fact that the local authority could have purchased the churchyard land compulsorily (rather than the 26 houses), if the vicar and parishioners had been reluctant to part with it.

In St. Margaret’s, Hawes (2003) 1 Weekly Law Reports 2568, a faculty was sought for the installation of a telephone mast in the church tower.  There was significant local opposition, encouraged by a fear that telephone masts radiate harmful emissions that can cause cancer etc.

There was no law regulating emissions from telephone masts.  Thus the mast owner was bound only by the common law duty of care.  The government’s advice to local planning authorities suggested that emissions posed no health risk, provided they complied with certain guidelines.  Planning permission had been granted for the telephone mast in this case.

Notwithstanding the government guidance and the planning permission, the chancellor made a thorough investigation of the scientific evidence concerning the alleged health risk.

He held that ‘it is for the petitioners to satisfy the [ecclesiastical] court that the grant of a faculty will not give rise to a real, as opposed to a fanciful, risk to human health …’ (p.2571).  His own task, he considered, was ‘to determine whether there is any substance in the fears that [emissions] … could present a risk’ (p.2574).  Having reviewed the scientific evidence, the chancellor concluded that there was ‘no compelling evidence of real risk to health’ (p.2585).

The chancellor showed commendable diligence and thoroughness in investigating the alleged health risk and seeking to reassure the parishioners.  However, it is argued that, like the ecclesiastical courts in the earlier cases, he failed to appreciate the nature of his jurisdiction.  The Church is not responsible for public health and safety.  In this case the secular authorities had approved the installation of the telephone mast and found no health risk.  It was not for the Church to go behind the findings of the secular authorities on such a matter.

The case of Kerr (1894) Probate Division 284 arguably gives better guidance to the ecclesiastical courts on questions both of environmental law and environmental fact.  Ironically this case was decided by Dr Tristram, who also decided Lee v Hawtrey.  In Kerr a faculty was sought for the ‘immurement’ (i.e interment in a wall) in a parish church of an urn containing a deceased person’s ashes.  At that time the practice of cremation was new and controversial.

The first question was whether the immurement of cremated remains in church was lawful.  As public health became a growing concern in the 19th century, various Acts of Parliament forbade the burial of dead bodies beneath church floors.  However, none of these Acts contemplated the burial of ashes, only of uncremated remains.  The court was therefore satisfied that the proposed faculty would not contravene the secular law.

However, the court was also concerned that the interment of ashes, though not illegal, might be objectionable on sanitary grounds.  It therefore directed a communication to the Home Secretary, who was then responsible for public health.  The Home Secretary replied that he had no objection on sanitary grounds to the proposed faculty.

This case suggests that ecclesiastical courts should address matters of secular jurisdiction and ‘the environment’ as follows:

(1)  where a question of law arises (is the interment of cremated ashes forbidden?) the ecclesiastical court must follow the interpretation of the secular courts or, if there is none, place its own interpretation on the secular law.

(2)  where a question of fact arises (is the interment of cremated remains a health risk?) the ecclesiastical court should follow the guidance of the relevant secular authority.

(3)  by implication, although the point did not arise in Kerr, the ecclesiastical court should seek its own expert evidence concerning health and safety only if no secular authority is able to advise it.

‘Shared Use’

Recent law reports and commentaries on ecclesiastical law suggest that ecclesiastical courts now like to emphasise the allegedly ‘communal’ function of parish churches, rather than their strictly religious function.

This was discussed by Charles George (the present Dean of the Arches) in an article aptly entitled ‘Is Nothing Sacred?’ (Ecclesiastical Law Journal, July 2002).  The article referred to ‘the erosion of the divide between ‘secular’ and ‘ecclesiastical’ purposes’ in dealings with churches (p.306).  The author described the result of this erosion as ‘shared use’.

The article noted that the secular use of church buildings has broadened from the provision of such convenient facilities as lavatories and kitchens to ‘day centres for the elderly and the deaf, nursery schools and probation offices’ (p.309).  It observed that ‘The[se] facilities … can surely only be permitted if the test is no longer what is strictly ‘an ecclesiastical purpose’ but rather what is compatible with both Christian mission and the primary ecclesiastical purposes of the Church’.

The case of St. Margaret’s, Hawes (2003) 1 Weekly Law Reports 2568 is one instance of this trend towards secular communal use.  The case concerned the installation of a telephone mast on the church tower, in return for lucrative rental income.  A petition objecting to the telephone mast on health grounds was signed by 283 people.

Having satisfied himself that the health fears were unfounded, the chancellor granted the faculty for the telephone mast, apparently unmoved by the strength of local opposition to it.  ‘I find the emotive language of the ‘petition’ [the one signed by 283 people] … unhelpful to the cause it espouses, but it does reveal an unreasoned attitude … and a lack of understanding that there are no scientific concerns … ‘ (p;p.2583-4).

However, the chancellor went on to observe that ‘the Church of England … encourag[es] all manner of community use of church buildings in order that the Church may take its place at the centre of the community’ (p.2586).  He did not seem to appreciate the irony of this reference to the ‘communal’ function of the church, while at the same time permitting a use of it to which a large number of the community strenuously objected.

Nevertheless, it is argued that the chancellor’s conclusion on the petition was correct.  Strong parochial opposition is a reason to refuse a faculty, provided it is based on legitimate, reasonable concerns.  Opposition that originates in superstition, bigotry or some wholly unfounded cause is not a reason to refuse a faculty. 

The ecclesiastical courts’ new emphasis on the communal role of parish churches is open to the reproach that it is motivated by financial gain.  The chancellor in Hawes noted that

‘Churches are enormously expensive to maintain … if a church can receive financial support by taking rent for a commercial undertaking that is consistent with its role as a local centre of worship and mission … no objection’ (p.2586).

Yet churches require financial support from commercial transactions because there are fewer worshippers to provide financial support.  This fact indicates a failure of the church to operate as a centre of worship and mission, hence the new openness to ‘communal’ or rather, secular, use.

The case of St. Mary-le-Bow (2001) 1 Weekly Law Reports 1507 concerned a restaurant business in the crypt of Bow Church.  A vegetarian restaurant had operated in the crypt under a faculty granted in 1989.  It had apparently been a ‘great success’ (p.1509).  The restaurateur now wished to extend the business by opening in the evenings, and by selling alcohol.  He also wished to use the Court of the Arches, which is located in part of the crypt, as an ‘overflow’ restaurant.

Chancellor Cameron (later Dean of the Arches, and George’s predecessor in that office) was not offended by this proposed use of the Court premises, and granted the faculty.  She noted that, if the faculty was not granted, ‘this could lead to the closure of [the restaurant] and would inevitably have a detrimental effect on that part of [the incumbent’s] ministry, which has been so effective in respect of introductions to him through the restaurant’ (p.1513).  (These had apparently resulted in no fewer than two confirmations.)

The Chancellor also observed generally that ‘where there is additional space, particularly in … crypts, it is understandable and reasonable … to use that space on commercial terms … [this] provide[s] a facility of benefit to the local community … and the [parish] benefits from a licence fee’ (p.1511).

However, George’s article points out the secular difficulties that may result from this ‘shared use’ of churches.  If churches are given over to secular use they may lose their exemption from rates (p.314).  Also, the ecclesiastical exemption from listed building consent applies only to buildings whose primary use is as a place of worship (p.316). 

Thus, by a rich irony, the secular use of the faculty jurisdiction (to permit restaurants etc) risks the loss of the very exemption from secular control that the modern faculty jurisdiction was intended to secure.

There is another irony in St. Mary-le-Bow.  The transformation of the Court of the Arches, the principal ecclesiastical court, into an overflow restaurant, is an eloquent comment on a jurisdiction that is overly concerned with the conservation of property while neglecting the purpose for which the property was originally given.

Secular or ‘shared’ use of churches was recently facilitated by the Pastoral (Amendment) Measure 2006.  The provisions of this Measure are now incorporated in s.68 of the Mission and Pastoral Measure 2011.  S.68 empowers the ecclesiastical court to grant a faculty permitting the grant of a lease of part of a church.

Mindful of George’s warning about the danger to the ecclesiastical exemption, s.68 stipulates that any lease must be consistent with the primary use of the church premises ‘taken as a whole’ as a place of worship (s.68(3)).

Although described as a ‘lease’, a dealing with church premises under s.68(3) is really a licence in all but name.  The ecclesiastical court may vary the lease at any time (s.68(7)).  The ‘tenant’ has no right to extend the lease or acquire the freehold.

What, then, is the purpose of the 2006 Measure and s.68, when the ecclesiastical court already has power to grant or permit a licence for ‘shared use’?  A commentator helpfully explains that ‘the intended user group [i.e the secular user] needs to have a full lease rather than merely a licence, to secure financial support’ (F Cranmer, Ecclesiastical Law Journal, January 2007).

Marriage Vows

It has been suggested that civil partnership differs from marriage because the parties to a civil partnership, unlike the parties to a marriage, are not required to exchange vows.

It is true that both ecclesiastical and secular marriage ceremonies generally provide for the exchange of vows by the couple.  However, English law and Roman Catholic law are both clear that such vows are not essential to the validity of a marriage.

Harrod v Harrod (1854) 69 English Reports 344 was a chancery case.  It concerned a disputed right to an estate.  The testator’s will provided that his estate should go to his daughter’s lawful children.  The daughter was deaf and dumb.  She was married in church and had children.  However, it was alleged that she could not understand the marriage ceremony or give consent to be married, on account of her disability.  Thus the marriage was a nullity, with the consequence that the children were illegitimate and so could not inherit.

However, the court concluded from the evidence that the daughter

(1) had sufficient mental capacity to consent to be married and

(2) had actually consented to be married.

Thus the daughter had ‘entered the contract of marriage by going through the ceremony with sufficient comprehension of its effect’ (p.354).  The children of the marriage were therefore legitimate and so entitled to the estate.

Being deaf and dumb, the daughter was not able to take the marriage vows in the normal way, but this did not invalidate the marriage.  Her expression of consent, given with sufficient mental capacity, was enough.

Roman Catholic law has a surprisingly liberal attitude to marriage ceremonies.  The Code of Canon Law 1983 provides that it is enough for the couple to be present together, either personally or by proxy, and to express their consent to be married in words, or by sign language if necessary (canon 1104).  (Sign language would, of course, have avoided the difficulty alleged in Harrod.)  Although words (or signs) of consent are necessary, no particular form of words is required, so long as consent is clearly expressed.  The parties may even be allowed to compose their own personal formula of consent.  Before 1917, Roman Catholic law allowed that marriage could be validly be contracted merely by letter.  (see Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.791)

The normal rule is that Catholic marriage must be celebrated before a Church official and two witnesses (canon 1108).  However, in extreme circumstances (danger of death, or no official available for a long time) the parties may marry each other in the presence of witnesses only, without an official being present (canon 1116).

These authorities show that spouses assume the obligations of marriage merely by giving a valid consent to be married.  It is not necessary that they take specific vows to perform those obligations.  They cannot later avoid the obligations of marriage by pleading that they did not expressly promise to perform them.

This in turn leads to the conclusion that civil partnership cannot be distinguished from marriage merely by the absence of vows.  Marriage and civil partnership can only be distinguished on the basis that the obligations inherent in the marriage contract do not inhere in the civil partnership contract.