Of all ecclesiastical offices, that of churchwarden is probably the hardest to analyse satisfactorily. The churchwarden seems to be an ecclesiastical jack-of-all-trades, with a multitude of different pastoral, disciplinary, proprietary and financial responsibilities (even if many of these have now been abolished). The office has a somewhat shapeless appearance, not fitting neatly into any category.
Some legal commentaries may do no more than provide a laborious catalogue of the ecclesiastical law relating to the appointment and functions of churchwardens. Such analysis as there is tends to concentrate on the peculiar dual role of churchwardens as
(1) officers of the parish and
(2) officers of the ordinary (principally the bishop, but also the archdeacon and the chancellor).
As was observed in the House of Commons debate on the Churchwardens Measure 2001, ‘churchwardens … are not only a bishop’s appointees, but the people’s choice. It is a very unusual position. Churchwardens have two masters … the people and the bishop’ (Official Report, 20th March 2001, column 312).
This is true, but it does not take full account of the churchwarden’s multi-faceted role in ecclesiastical law. Further analysis is needed to make sense of the accumulation of apparently disparate functions.
It is argued that the office of churchwarden comprises a system of constitutional checks and balances in ecclesiastical governance. The relationship between the parish and the bishop / ordinary is indeed one aspect of this system, but only one. The system actually regulates four different relationships, those between:
(1) churchwarden and churchwarden
(2) incumbent and parish
(3) parish and bishop / ordinary / diocesan authority and
(4) Anglicans and non-Anglicans.
The original purpose of this system is to safeguard the administration of the property and finance of the parish, the Church’s cure of souls therein, and to maintain the correct balance between diocesan authority and parochial autonomy. More recently it has been extended to protect the rights of non-Anglican parishioners in the parish church and churchyard, and hence to balance the interests of Anglicans and non-Anglicans.
(1) Churchwarden and Churchwarden
As is well known, there are normally two churchwardens to a parish. There may be more. The rule of at least two churchwardens to a parish is not absolute, being subject to existing local custom or special Act of Parliament (Churchwardens Measure 2001, s.1(1)). It is therefore still possible to have a parish with one churchwarden only. However, the general rule of at least two churchwardens provides an obvious safeguard against fraud and neglect in the administration of parish property and finance. Each churchwarden ‘checks and balances’ the other churchwarden.
Halsbury’s Laws suggests that both churchwardens must concur in bringing a legal action and in doing any other official act (3rd edition 1957, Church Assembly Edition, para 369). In the case of Northwaite v Bennett (1834) 149 English Reports 781, one churchwarden hired a contractor to repair the church, without consulting the other churchwardens. He was held personally liable for the expense. The court held that ‘one churchwarden cannot pledge the credit of the others’.
(2) Incumbent and Parish
The rule of common law was that both churchwardens were elected by the parishioners. Canon 89 of 1603 provided that churchwardens should be chosen by the parishioners and the incumbent jointly. In default of agreement, canon 89 directed that one churchwarden should be elected by the parishioners (the ‘people’s warden’) and one chosen by the incumbent (the ‘vicar’s warden’).
The 2001 Measure largely reverts to the common law. It provides that, as a general rule, both churchwardens should be elected by the parishioners. It seems that the incumbent may vote as well, but does not have a special casting vote (s.5(6)).
However, the incumbent has one important power over the choice of churchwardens. If he feels that there might be ‘serious difficulties’ between himself and a particular would-be churchwarden ‘in the carrying out of their respective functions’, he can rule that only one churchwarden is to be elected by the parishioners. The incumbent then chooses the second churchwarden, but his choice is limited to one of the other candidates nominated at the parish meeting. The incumbent’s choice must be announced before the election of the other churchwarden by the parish.
Thus the incumbent does not exactly have the right to veto the election of a particular candidate, but he can effectively suspend the parishioners’ right to vote for a second churchwarden (rather like the bishop’s right to suspend the exercise of the right of presentation to a benefice).
The relationship between incumbent and churchwardens (whether chosen by the incumbent or the parishioners) was discussed by Sir William Scott in Hutchins v Denziloe and Loveland (No.1) (1792) 161 English Reports 514.
In this case the relationship was evidently poor. The Rev Hutchins prosecuted his churchwardens (Messrs Denziloe and Loveland) when they sought ‘to obstruct and and prohibit the singing of the parish [choir], accompanied by the organ’, during divine service. The churchwardens had acted thus because they ‘supposed that, as they paid the organist and managed the [choir], they [and not the incumbent] were to direct when the organ should or should not play’ (p.515).
However, Scott held that the churchwardens could not intervene during divine service in such a manner, even if the incumbent was himself acting unlawfully. He affirmed that ‘if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary … if private and decent application to the minister … fail … in preventing the repetition of an irregularity’ (p.516).
He continued: ‘In the service churchwardens have nothing to do but collect the alms at the offertory: and they may refuse the admission of strange preachers [i.e visiting preachers] into the pulpit’, though, ‘when letters of orders are produced [by the visiting preacher], their authority ceases’.
Thus ‘In all other respects, [the churchwarden’s] is an office of observation and complaint, but not one of control, with respect to divine worship’.
Canon B17(2) suggests that the churchwardens remain responsible for providing the bread and wine for holy communion. Canon E1(4) affirms that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’.
Canon E1(4) provides that churchwardens must ‘use their best endeavours by example and precept to encourage the parishioners in the practice of true religion and to promote unity and peace among them’. Norman Doe describes this function as ‘quasi-priestly’ (The Legal Framework of the Church of England, Clarendon Press, Oxford, 1996, p.241).
These authorities indicate that churchwardens assist, and even share, the incumbent’s cure of souls. It may be said that assisting and sharing the incumbent’s ministry, whether by providing bread and wine, maintaining order or promoting piety and unity, is the principal duty of churchwardens. Having said that, however, churchwardens are not merely the incumbent’s pastoral assistants. It is also part of their office to scrutinise the incumbent’s performance of his official duties, as Sir William Scott said, by means of ‘observation and complaint’. In this way the churchwardens ‘check and balance’ the incumbent. They do this both as officers of the parish, which is the object of the cure of souls, and of the bishop, who shares the cure of souls with the incumbent. The balance is indeed a delicate one.
The churchwardens’ ability to scrutinise the ministry of the incumbent and any assistant clergy is arguably undermined by the incumbent’s chairmanship of the parochial church council (‘the PCC’) and the ex officio membership of the PCC of all other parish clergy (Church Representation Rules, Appendix 2 and rule 14(1)(a)). The involvement of the clergy with the PCC is also open to the objection that it leaves the clergy with less time for the ministry of Word and Sacrament which is their raison d’etre.
The Church of England report Church and State (1918) included a persuasive recommendation (never followed) by Lord Hugh Cecil that PCCs should be exclusively lay committees under the chairmanship of the churchwardens.
Cecil argued that
‘it would be most mischievous to make the incumbent ex officio chairman of [the PCC]. It would be difficult and unseemly for a Council over which a culpable incumbent presided to take any steps by way of complaint … against him … A far better safeguard would be found in emphasising the distinctness of function of the incumbent and council by excluding the incumbent from membership altogether’ (pp.294-6).
(3) Parish and Ordinary
The churchwardens’ status as officers of the parish is much less important than it used to be. Their common law duties towards the parish church and churchyard have been transferred to the PCC: Parochial Church Councils (Powers) Measure 1956, s.4(1)(ii).
However, the 1956 Measure did not alter the constitutional relationship between the churchwardens and the incumbent, nor the churchwardens’ status as officers of the ordinary. Also, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 reversed the trend of modern legislation to some extent by imposing additional duties on the churchwardens, both as officers of the parish and of the ordinary (see s.4 and s.5 of the Measure).
Canon E1(4) affirms that churchwardens are ex officio officers of the ordinary. As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church.
It was held in Fuller v Lane (1825) 162 English Reports 348 that ‘The distribution of seats [in church] rests with the churchwardens as the officers, and subject to the control of, the ordinary. Neither the ministers nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners’ (p.825).
The 1956 Measure makes clear that ‘Nothing herein contained shall affect … [the churchwardens’] powers, duties and liabilities with respect to visitations’ (s.4(1)(ii)(c). The churchwardens are required to make written ‘presentments’ to the archdeacon on the state of the parish in advance of the annual visitation (canon G6(1)). This duty is now shared with the incumbent. Canon 113 of 1603 provided only that the incumbent might ‘join in the presentments’ if he wished to do so. The implication of canon 113 is that the incumbent might become involved in the presentments if there was some matter he particularly wished to raise, or if he suspected that the churchwardens themselves were neglecting their duties.
The process of appointing churchwardens alludes to their dual function as officers of both the parish and the ordinary. The process is now regulated by the 2001 Measure. The candidates are elected by the parish meeting (s.4(1)). However, the churchwardens-elect do not take office until they are admitted thereto by the bishop or his representative (s.6(1)). It is the admission by the ordinary that confers title to the office of churchwarden, not election by the parish.
Elected lay members of the PCC, by contrast, ‘hold office from the conclusion of the annual meeting at which they were elected’ (Church Representation Rules, rule 16(1)). Being officers of the parish only, they are not required to be admitted to office by the ordinary. They are automatically admitted when the annual meeting ends. The PCC is independent of the bishop.
However, although his admission is required to confer the office, and although the churchwardens are his officers, the bishop / ordinary has no discretion to refuse to admit a validly elected churchwarden if he doubts his fitness for office. The duty to admit is said to be ‘ministerial’, not discretionary (Phillimore Ecclesiastical Law, 2nd ed, 1895, p.480).
Thus in R v Sarum (1916) 1 King’s Bench 466 the secular court compelled an understandably reluctant bishop to admit as churchwarden a man who had been convicted of using ‘filthy and indecent language to the rector and in the presence of the rector’s wife’, and in the parish church. The bishop’s obligation to accept a churchwarden elected by the parish, rather than appoint his own, is an obvious safeguard of parochial autonomy.
As churchwardens are the bishop’s officers they also resign their office to the bishop (2001 Measure, s.7(1)).
(4) Anglicans and Non-Anglicans
In Adey v Theobald (1836) 163 English Reports 157 an exasperated ecclesiastical judge complained of the ‘extraordinary anomaly’ of non-Anglicans officiating as churchwardens. He noted that ‘There are various duties … by the ecclesiastical law which this person [i.e a non-Anglican churchwarden] could not perform … [for example] the preserving order during divine service’ (p.159).
Quaker churchwardens were a particular difficulty. The duty of keeping order in church included (and still includes) ensuring that men remove their hats in church. At one time, Quakers apparently refused to take their own hats off, even when in church.
However, Sir John Nicholl observed in Palmer v Tijou (1824) 162 English Reports 266 that ‘It is [the churchwardens’] duty to attend church for the very purpose of preserving order … [but] if they are dissenters from the Established Church and from … conscience cannot attend its worship, they are allowed by law to serve the office by sufficient deputy’ (p.267).
The Churchwardens Measure 2001 retains the old rule that churchwardens are elected by all the parishioners, regardless of religion, not just those on the church electoral roll (s.4(2)).
This rule may be anachronistic, as churchwardens no longer have any responsibility for secular local government, only for matters pertaining to the Church of England. However, parishioners retain common law rights to marry in the parish church and to burial of their remains in the churchyard. It is therefore thought appropriate for non-Anglican parishioners to retain a limited influence on ecclesiastical administration. (cf House of Lords Official Report, 30th March 2001, column 543, Bishop of Guildford).
Nevertheless the judge’s objection in Adey remains valid. A churchwarden who is not a regular Anglican churchgoer is hardly capable of performing the duties attaching to the office.
The present law is therefore something of a compromise. Non-Anglican parishioners are entitled to vote in the election of churchwardens, but they may only elect a churchwarden who is an Anglican communicant, and enrolled on the church electoral roll (2001 Measure, s.1(3)). However, in undefined ‘exceptional circumstances’, the bishop may permit the election of a churchwarden who is not a communicant or church elector, but the churchwarden must still be baptised (s.1(4)) (so Quakers are presumably ineligible).
The Bishop of London may permit a non-communicant to serve as warden of a guild church in the City of London even where the circumstances are not exceptional (s.9(1)).