ecclesiasticallaw

Ecclesiastical law

Month: September, 2013

Admission and Institution

At common law there are said to be four things necessary to ‘complete a parson’:

(1)  presentation

(2)  admission

(3)  institution and

(4)  induction

(Bishop of St. Davids v Lucy (1699) 91 English Reports 126).

The benefice patron presents his chosen candidate for a vacant benefice to the bishop, who may then admit the candidate.  Presentation is now regulated by statute law, principally the Patronage (Benefices) Measure 1986.  Presentation is formally effected by the patron sending the bishop a notice presenting the candidate for admission, the second stage in the appointment process (s.13(6)).

Institution is granted by deed of the bishop.  When ‘signed, sealed and delivered’, it confers title to the benefice on the presentee.  If the bishop is himself the patron, the incumbent is said to be collated rather than instituted.  Induction confers possession of the church and other property of the benefice.  The formalities of institution and induction are ancient, and now mostly regulated by canons C10 and C11.

It would seem that all benefices are now either presentative or collative.  There used to be benefices described as donative, ‘in the free gift … of the patron, without making any presentation to the bishop; and without admission, institution or induction by any mandate from the bishop … but the donee may, by the patron or by any other authorized by the patron, be put into possession’ (Phillimore, Ecclesiastical Law, 2nd edition 1895, pp.252-3).

The distinction between admission and institution to benefices is often blurred.  Indeed the terms are sometimes used interchangeably.  S.106(1) of the Mission and Pastoral Measure 2011 understands the word admission to include ‘institution and induction, collation, licence and any other process by which a person becomes incumbent of a benefice …’.  Phillimore explains that ‘In a larger sense admission is sometimes used to include also institution, but … properly, admission is taken to be when the bishop upon examination approves of the presentee as a fit person to serve the cure of the church to which he is presented’ (p.350).

The admission process makes the important point that a candidate validly presented to a benefice still requires the approval of the bishop.  The Patronage (Benefices) Measure 1986 provides that the patron cannot normally make an offer of presentation to his preferred candidate for the benefice without the bishop’s prior consent (s.13(1)).  However, s.17(1) of the 1986 Measure is careful to provide that ‘Nothing in this Measure shall affect the power of a bishop to refuse to institute or admit a presentee’.

Thus the bishop has two rights of veto over a candidate for a benefice.  He can refuse to allow the patron to make initial offer, and he can refuse to institute even where he has allowed the patron to make the offer.  Thus in effect the bishop can change his mind about the candidate’s suitability.

There are sound reasons for retention of the bishop’s second veto.  As chief pastor, he has responsibilities that are not shared with the patron and parish of a vacant benefice.  Canon C10(2) provides that the bishop must inspect the presentee’s letter of orders, or require other sufficient evidence that he has been ordained.  He may also require further evidence of the candidate’s ‘former good life and behaviour; and … sufficient learning’.

Canon C15(1) requires the candidate to make the declaration of belief before he is instituted.  The declaration of canonical obedience is also required (canon C14(3)), as is the oath of allegiance and supremacy (Clerical Subscription Act 1865, s.5 and canon C14(3)).  However, s.5 of the 1865 Act makes clear that the bishop may not impose any subscription, declaration or oath other than those imposed by law or canon.

It is likely that the candidate will be required to submit to enquiries into his suitability to work with children, but this requirement is not referred to in any Measure or canon. 

It is obviously possible that the admission process may bring to light information about the candidate that was not known at the presentation stage.  The bishop therefore requires an additional right to veto the presented candidate before institution.

The bishop’s refusal to institute a clergyman who has been validly presented to him is governed by the Benefices Act 1898, not the 1986 Measure.  S.2 of the 1898 Act provides that a bishop may refuse to institute a presentee who was ordained less than three years previously, or whom he considers unfit for the duties of the benefice.  The definition of ‘unfitness’ in s.2 is fairly obvious, including physical or mental infirmity or incapacity, serious pecuniary embarrassment, or other serious professional or personal misconduct.

However, s.3(1) of the 1898 Act provides that the bishop’s right to refuse institution is not limited to the grounds specified in s.2, but extends to ‘unfitness or disqualification of the presentee otherwise sufficient in [common] law …’.

The 1898 Act makes clear that Crown benefices are subject to its provisions (s.13(1)).  Thus although the bishop may not veto a Crown presentation (per s.35 of the 1986 Measure) he can still refuse to institute the Crown’s candidate.

If the patron or the presentee dispute the bishop’s refusal to institute they may appeal to a special tribunal comprising the Archbishop and either the Dean of the Arches and Auditor or a diocesan chancellor nominated by the Dean.

However, a different regime applies if the bishop’s refusal to institute is founded on a so-called ‘reserved matter’, i.e an issue of doctrine, ritual or ceremonial.  In such a case the presentee may challenge the refusal in the Court of Ecclesiastical Causes Reserved: Ecclesiastical Jurisdiction Measure 1963, s.10(1).

Just as there are four things necessary ‘to complete a parson’, so there are four things necessary to complete a bishop.  These are

(1)  election

(2)  confirmation

(3)  consecration (ordination) and

(4)  installation (now often described as ‘enthronement’)

(per Bishop of St. David’s v Lucy).

Thus there is no equivalent process of admission in the appointment of a bishop.  The obvious reason for this is the English legal doctrine that ‘All bishoprics were of the King’s foundation and thereupon accrued to him the right of patronage’ (Phillimore, p.33, citing Coke).

The Appointment of Bishops Act 1533 makes clear that, although the four stages of appointment of a new bishop are effected by ecclesiastical authority, the Crown controls the entire process.

Thus s.4 of the 1533 Act provides that, on a vacancy in the see, the Monarch grants a licence to the dean and chapter to elect a new bishop.  However, the licence is always accompanied by a letter containing the name of the person whom they shall elect.  The dean and chapter’s responsibility is now exercised by a new cathedral body, the college of canons (Cathedrals Measure 1999, s.5(3)).

When the candidate has been elected, the 1533 Act provides that the Monarch sends letters patent to the Archbishop, commanding him to confirm the election and ‘invest and consecrate the person to the office and to give all such ceremonies and other things requisite for the same’ (s.5).

If the chapter (or college of canons) decline to elect the Monarch’s candidate, the Monarch, like the patron of a benefice, presents the candidate to the Archbishop (s.4).  The Archbishop must then invest and consecrate the candidate to the office, without confirmation.

The 1533 procedure was discussed in the case of R v Archbishop of Canterbury (1902) 2 King’s Bench 503, in which the Archbishop’s confirmation of the election of a controversial new Bishop of Worcester was unsuccessfully challenged in the secular court.

The court held that the 1533 Act gives the Archbishop no discretion to refuse to confirm a valid election just because he (or others) doubted the candidate’s fitness for the office.  A refusal to confirm would be an act of disobedience to a lawful royal command.  S.7 of the Act even prescribes penalties against anyone doing anything contrary to the Act.  Moreover, the Act gives the Archbishop a mere 20 days to confirm.  This was ‘wholly inconsistent with the idea that the statute referred to a recognized practice [i.e of disputing a bishop-elect’s fitness for office] … [involving] protracted litigation’ (p.542).

The court also noted the Monarch’s power under s.4 of the 1533 Act to override the ecclesiastical election and present its candidate to the Archbishop for consecration and installation.  The existence of this power proves that confirmation is not legally essential to the appointment of a bishop.  Before the disestablishment of the Church of Ireland, all Irish bishops were appointed by letters patent of the Crown, without any confirmation by an Archbishop (p.547).  Therefore ‘bishoprics have always had largely the character of donatives’ (p.541).

Although the last stage of appointment to a bishopric, installation / enthronement in the cathedral, is an ecclesiastical ceremony, s.6 of the 1533 Act provides that a new bishop ‘shall have out of the King’s hands all the possession and profits spiritual and temporal belonging to the bishopric’. 

However, there is an interesting anomaly in the law governing the appointment of bishops.  The Bishops in Foreign Countries Act 1841 permits the two Archbishops to consecrate bishops for overseas service, but only if they have been ‘fully ascertained of the sufficiency of [the candidate] in good learning, of the soundness of his faith, and of the purity of his manners’ (s.3).  The Home Church, by contrast, enjoys no such guarantee of the quality of its bishops.  The Crown cannot be compelled to consider learning, sound faith and purity when exercising its powers under the 1533 Act.  It can only be trusted to do so.

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The Bishop and the Patronage (Benefices) Measure 1986

The 1986 Measure retained the ancient system of private patronage of benefices, though with significant modifications.  It also provided that the parish, through its churchwardens or other representatives, must be consulted in the appointment of a new incumbent. 

The appointment of a new incumbent is therefore effected by tripartite negotiation between (1) the patron (2) the bishop and (3) the parish, as regulated by the 1986 Measure.  However, diocesan bishop are themselves ex officio patrons of a significant number of benefices.

It may be helpful to divide the rights and responsibilities of the bishop under the 1986 Measure into three categories, as follows:

(1)  The Bishop and the Patron

Although the bishop may restrict the exercise of rights of patronage in certain circumstances, he cannot control who shall exercise those rights (subject to one exception, discussed in (3) below).  The diocesan register of patrons is, in effect, the responsibility of the diocesan (consistory) court, not the bishop.  The register is maintained and, if necessary, rectified by the registrar, though subject to a right of appeal to the chancellor (ss1 and 4, also schedule 1).

Rights of patronage may only be exercised by communicant Anglicans (s.8).  When a benefice falls vacant, non-Anglican individual patrons, and institutional patrons, must appoint communicant Anglicans to represent them.  Again, the bishop has no say in the choice of representatives, and does not decide if they satisfy the religious qualification.

When a vacancy arises, the bishop inaugurates the process of presentation to the benefice by notifying the vacancy to the diocesan ‘designated officer’, who will usually be the secretary of the diocesan pastoral committee (s.7).

If the bishop is not himself the benefice patron, any offer of presentation made by the patron or his Anglican representative must be approved by the bishop (also by the parish representatives) (s.13).  If the bishop refuses to approve the offer he must give written reasons for this.  The bishop’s and parish representatives’ approval is not required if the Crown is the patron making the offer (s.35).

If the patron neglects to make the required declaration of communicant status, or to appoint a representative who has done so, the bishop may make an offer of presentation to priest of his own choice, though subject to the approval of the parish representatives (s.14).  A clerical patron or representative is not required to declare that he is a communicant, but he is required to inform the designated officer that he is in holy orders (s.9(5)).

As well as the right to refuse an offer of presentation by the patron, the bishop retains the right to refuse to institute or admit a candidate who has been presented with his approval.  This means in effect that the bishop may change his mind about the candidate’s suitability (s.17).

(2)  The Bishop and the Parish

The bishop may require a special joint meeting between himself, the patron and the parochial church council (‘the PCC’) of the vacant benefice, in order to ‘exchange views’ on the ‘section 11 statement’ prepared by the PCC (s.12(1)).  This is the statement describing ‘the conditions, needs and traditions of the [vacant] parish’ required under s.11.  The patron and the PCC may each likewise request a joint meeting.

If such a meeting is held, the bishop must provide a statement ‘describing in relation to the [vacant] benefice the needs of the diocese and the wider interests of the Church’ (s.12(2)).  This is known as a ‘section 12 statement’.  The statement must also be given in writing, if either the patron or the PCC requests this.

The bishop is obliged to produce the statement if a joint meeting is convened, but he is not absolutely obliged to attend the meeting.  However, if he is ‘unable’ (as distinct from unwilling) to attend, he must appoint a representative to attend on his behalf (s.12(6)).

If the PCC fail to supply a section 11 statement or fail to request a joint meeting, the bishop may agree to the patron making an offer of presentation without waiting for the approval of the parish representatives.

Once the candidate for the benefice has been presented and admitted by the bishop, the bishop must send to the PCC secretary a prescribed notice of his intention to institute or, if the bishop is himself the patron, to collate the candidate (s.19).

(3)  The Bishop and the Church

A right of patronage that is vested in an ecclesiastical corporation (e.g a cathedral chapter or the incumbent of another benefice ex officio) may not be transferred to another patron without the bishop’s consent, unless the transfer is effected by statutory authority.  If the bishop is himself the transferor, the Archbishop must give consent (s.3(2)).  Where the bishop’s consent is required to a transfer of patronage, he must consider any representations made to him, and may require the transferor to confer with him (s.3(5)).

If the bishop (or a parish representative) refuses to approve an offer of presentation to a clergyman, the patron may refer the matter to the Archbishop for ‘review’ (s.13(5)).  The Archbishop may overrule the refusal and authorise the patron to make the offer.

If the bishop has not received a notice of presentation from the patron after 9 months, the right of presentation passes to the Archbishop (s.16).  The bishop is required to notify the Archbishop accordingly.  This is a change from the earlier law ‘under which patronage lapsed after 6 months from the patron to the bishop’ (see also s.31(1)).

The bishop acts as patron if the right of presentation to a vacant benefice vests in the incumbent of another benefice, and that other benefice is also vacant, or under sequestration, or the incumbent is suspended or inhibited from office (s.20).  This may repeal by implication a provision in the Ecclesiastical Jurisdiction Measure 1963, at s.76(1), which suggested that in these circumstances the patronage vests in the patron of the other benefice.

Two incumbents may agree to exchange their benefices, but this requires the agreement of their bishop, or bishops, also of the respective patrons and PCCs (s.22).

Patronage and Integrity

It has been pointed out that the Patronage (Benefices) Measure 1986, which effectively regulates appointments to benefices, says little about how candidates are actually selected.  s.11(1)(c) of the Measure provides that the parochial church council (‘PCC’) may request the benefice patron to advertise a vacancy, but the PCC cannot insist on this.  The ‘headhunting’ process is evidently rather informal.  Bishops and institutional patrons apparently keep lists of potential candidates.  There may be an official at Church House Westminster who acts as a kind of recruitment agency.  But these practices are not referred to in the Measure.

A candidate for ecclesiastical office was formerly required to make a declaration against ‘the detestable sin of simony’: see canon 40 of 1603, as amended by the Clerical Subscription Act 1865.  Following the Miscellaneous Provisions Measure 1976, the General Synod has seen fit to abolish this requirement.

However, s.11 of the Patronage (Benefices) Measure contains provisions evidently intended to maintain the integrity of appointments to benefices.  If the patron of the vacant benefice is a clergyman, or the spouse of a clergyman, that clergyman is disqualified from presentation.  The outgoing incumbent and his spouse may not be involved in the preparation of the ‘section 11 statement’ that the PCC is required to prepare describing the conditions, needs and traditions of the parish.  Nor may they be involved in the selection of those who are to represent the parish in the appointment of the new incumbent.  If the patron or his appointed representative is himself a member of the PCC he may not attend meetings of the PCC which concern the vacancy.

There are other ‘integrity’ provisions.  S.28 of the 1986 Measure provides that where a benefice becomes vacant because a simoniacal presentation is ‘voided’, the next presentation shall be made by the diocesan patronage board, not the original patron.  The Mission and Pastoral Measure 2011 provides that no person may hold benefices in plurality, except under the terms of a statutory scheme or order (s.104).  The dean or canon of a cathedral may not hold a benefice unless the cathedral’s constitution permits this.  If anyone holds office in contravention of this rule, he shall, on admission to the new office, be deemed to have vacated the previous office.  An ecclesiastical officeholder may serve additionally as vicar of a guild church in the City of London, but the bishop may prevent this if the two offices ‘cannot properly be combined’.

The Ecclesiastical Commissioners Act 1836 forbids an incumbent who is promoted to a bishopric to continue to hold his benefice in commendam (s.18).  S.76(1) of the Ecclesiastical Jurisdiction Measure 1963 provides that, if a bishop is suspended from office, his ex officio rights of patronage vest in the Archbishop.  S.76(1) further provides that if an incumbent who is ex officio patron of another benefice has been suspended or inhibited under the disciplinary process, his right of patronage vests in the patron of his own benefice.  This may conflict with s.20 of the 1986 Measure, which provides that the bishop of the vacant benefice exercises the patronage in these circumstances.

In the (nowadays unlikely) event that a candidate for a beneficed or licensed office is himself the incumbent of a sequestrated benefice, he may not be appointed without the written consent of his bishop, and of the sequestrator of the benefice (Sequestration Act 1871, s.7).

Disestablishment, Disendowment and Dismemberment

From the early 12th century until 31st March 1920, a period of about 800 years, the Church in Wales comprised four dioceses (Llandaff, St. Davids, Bangor and St. Asaph) of the Province of Canterbury in the Church of England.

The Welsh Church Act 1914 had a twofold purpose:

(1) disestablishment of the Church in Wales and

(2) disendowment of some of its property in favour of secular local authorities and University of Wales.

Opponents of the Welsh Church Act argued that it had a third consequence for the Church in Wales 

(3) dismemberment, the enforced constitutional separation of the four Welsh dioceses from the rest of the Province of Canterbury, and hence from the Church of England.

The Welsh Church Act was substantially modelled on the Irish Church Act 1869, which disestablished the Anglican Church of Ireland.  However, the Church of Ireland, unlike the Church in Wales, had never been an integral part of either of the two English Provinces.  Ireland always had its own ecclesiastical Provinces.  So although the Church of Ireland had been disestablished, it had not been dismembered.

There is no provision of the 1914 Act that in terms requires the constitutional separation of the English and Welsh Churches, or that the Church in Wales be reconstituted as a separate ecclesiastical province.  S.13(1) of the Act enabled the members of the Church in Wales to make rules for its constitutional self-government but this freedom per se did not require them to leave the Church of England.  At most, it only permitted them to do so.  

The 1914 Act actually envisaged a continuing constitutional link between the Welsh dioceses and the Church of England.  S.3(3) provided that

‘The … constitution … of the Church in Wales may … if the Archbishop of Canterbury consents, [provide] for appeals from [Welsh ecclesiastical courts] being heard and determined by the provincial court of the Archbishop [i.e the Court of the Arches] …’.

However, another provision of the Act, s.3(5), did intervene directly in the constitutional relationship between the Welsh and English Churches.  It provided that

‘As from the date of disestablishment the bishops and clergy of the Church in Wales shall cease to be members of or be represented in the Houses of Convocation of the Province of Canterbury’.

This provision was very controversial in 1914.  Opponents of Disestablishment suggested that it was unprecedented, and that Parliament had never before intervened directly in the membership and procedure of the Convocations, even at the Reformation.  (See the first report of the select committee of the House of Lords on matters affecting the Church in Wales.)

The justification offered for s.3(5) was that it was ‘impossible … to allow the Welsh dioceses to retain their present position in the Convocation of Canterbury because this would create a ‘free’ Church governed and ruled by an Established Church … the remaining English portion of the Province of Canterbury …’ (House of Commons Official Record 1914, volume 61, columns 1805-6).  If the Church in Wales was to become self-governing on the same terms as the Methodist or Baptist Churches, it could not continue to be subject to the legislative acts of the Canterbury Convocation.  Without s.3(5) the primary purpose of the 1914 Act, Disestablishment, would be frustrated.

The 1914 Act was, of course, passed before the Church of England Assembly (Powers) Act 1919.  At that time, the National Assembly and the various ‘conferences’ of the Church of England still existed on a voluntary basis only.  Supporters of Disestablishment argued that any difficulty caused by s.3(5) could be resolved if the English and Welsh bishops and clergy and any lay representatives simply met and deliberated in such a voluntary assembly:

‘After this Bill is passed the Archbishop [of Canterbury] may summon the identical persons to … the identical meeting and … transact identically the same business … They [the Welsh and English bishops and clergy] may do all the business which is now done in Convocation but it will not be Convocation.  That is the sole difference.’ (column 1908).

This suggestion anticipated the settlement created by the 1919 Act, under which the Church Assembly and the Convocations transacted ecclesiastical business, as it were, side by side.  This power-sharing arrangement proved administratively complex and confusing and was brought to an end by the Synodical Government Measure 1969.  Of course, the Archbishop of Canterbury continues to ‘summon’ (or rather, invite) the bishops of the Church in Wales to the Lambeth Conference, another assembly that exists only on a voluntary basis.

However, after the Welsh Church Act became law, the Welsh bishops and the then Archbishop of Canterbury, Randall Davidson, evidently concluded that the practical difficulties of the disestablished Welsh dioceses remaining within the Province of Canterbury were too great.  It was therefore reluctantly agreed that they would have to leave and form a separate ecclesiastical province.

This decision was recorded in a message from the Archbishop of Canterbury ‘To all Christian people pertaining to the Church in Wales’ dated 1st April 1920, the day after Disestablishment (also April Fool’s Day).  1st April was the date of Dismemberment but the proceedings necessary to effect Dismemberment were taken before Disestablishment.

The Welsh bishops were bound to the Archbishop by their oath of canonical obedience to him.  It was the submission of the Welsh bishops to the primatial jurisdiction of Canterbury, and their oath of obedience to the Archbishop, that had originally effected the incorporation of the Welsh Church into the Canterbury Province in the early 12th century.  Therefore in January 1920 the Bishop of St. Asaph (the senior Welsh bishop at the time), acting in accordance with a resolution of the Governing Body of the Church in Wales, formally requested the Archbishop ‘to take such steps as may be necessary to constitute the four Dioceses of Wales into an ecclesiastical province’.

The Archbishop responded by sending letters to the four diocesan bishops in which he stated that he regarded them as being ‘released from any obligation under which you lie by reason of the Oath of due obedience to the See of Canterbury …’ after Disestablishment.  Then on 10th February 1920 the Archbishop declared, in Convocation, that the Welsh dioceses should be ‘separate from the Province of Canterbury and (they so desiring) a distinct ecclesiastical Province’.

Thus it was the Archbishop of Canterbury, Randall Davidson, who created the ecclesiastical Province of Wales.  The Province was not created either by the Welsh Church Act, or by any other Act of Parliament, or by the constitution of the Church in Wales.  There is no provision in the constitution stating that ‘There shall be a Province of Wales’, or that ‘There shall be an Archbishop of Wales’.  The Archbishop of Canterbury’s declaration creating the new Province may have been the last act of English ecclesiastical law to bind the Church in Wales.

The Bishop of St. Asaph, Alfred George Edwards, became the first Archbishop of Wales (though he remained Bishop of St. Asaph as well).  He was not chosen by the Archbishop of Canterbury but elected by the Governing Body (apparently ‘by acclamation’).  However, Randall Davidson presided at the subsequent enthronement ceremony.  Not only that, he also kindly donated a wooden replica of St. Augustine’s Chair for the new Archbishop to be enthroned on.  The replica is always kept in the diocesan cathedral of the incumbent Archbishop (currently Llandaff Cathedral).  It is a visible reminder that the Archbishop of Canterbury created the Province of Wales.

The Care of Churches

Three functions may be identified in the care of a parish church

(1)  the provision of materials for worship

(2)  the work of repair or maintenance and

(3)  the custody of the building and its contents.

These three functions are now distributed between four parochial officials

(1)  the incumbent (albeit to a very limited extent)

(2)  the churchwardens

(3)  the parochial church council (‘the PCC’) and

(4)  the lay rector (in respect of the chancels of certain parish churches)

Responsibility for the supervision or oversight of the parochial officials’ care of their church is now shared between

(1)  the archdeacon

(2)  the bishop

(3)  the diocesan synod and

(4)  the diocesan advisory committee for the care of churches.

Provision and Maintenance

The Parochial Church Councils (Powers) Measure 1956, s.4(1) provides that the PCC has

(i) ‘The like powers, duties and liabilities as … the [parish] vestry … had with respect to the affairs of the church, except as regards the election of churchwardens and sidesmen and as regards the administration of ecclesiastical charities …

(ii) The like powers, duties and liabilities as … the churchwardens … had with respect to

(a) the financial affairs of the church …

(b) the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof …

(iii) The like powers, duties and liabilities … possessed by the church trustees (if any) … appointed under the Compulsory Church Rate Abolition Act 1868.’

The responsibilities of the vestry and churchwardens towards their church existed at common law.  Thus the 1956 Measure did not devise any new responsibilities, it merely transferred common law responsibilities to the PCC.

The wording of s.4(1)(ii) suggests that the churchwardens’ duty, and hence the PCC’s, extends to care, maintenance, preservation and insurance.  This sounds quite onerous.  However, it is questionable whether the common law duty extends as far as the statutory wording suggests.  Common law is unwritten.  It therefore lacks the detailed, exhaustive provision of modern statute law.

The case law indicates that the churchwardens’ duty of care did not extend much beyond the repair of the church, making good any damage as and when it occurred.  It does not hold that the duty extends as far as preservation and insurance.  It was noted in Church Estate Charity, Wandsworth (1871) Law Reports 6 Chancery Appeals 296 that ‘at common law, parishioners are not bound to rebuild a church which has fallen down’ (p.299).  According to one writer, insurance is an allowable expense at common law, but not a necessary one (C.Y Sturge, Points of Church Law, pp.32-3).

As s.4(1)(iii) indicates, the care of the parish church was originally financed by compulsory church rates paid by the parishioners, who constituted the vestry, regardless of religious allegiance.  The church rate was then supposed to be voted by the parishioners in vestry, and then confirmed by the Church court.

These common law duties, and the controversy they once inspired, were discussed in Burder v Veley (1840) 113 English Reports 801.  Mr Veley was a churchwarden.  He and his co-churchwarden summoned the vestry to grant a church rate.

The vestry indignantly refused.  It resolved that ‘so long as the parochial churches are exclusively devoted to the use of the established sect [i.e the Church of England], all expenses of repair shall be defrayed out of the ample revenues of that richly endowed sect or … by the voluntary contributions of those who exclusively enjoy the use of the buildings’ (p.802).

The churchwardens then made, or purported to make, a church rate by themselves.  Having done so, they took legal action against Mr Burder in the Church court to require him to pay their rate.  Mr Burder applied to the secular court for a prohibition of the legal action.

The prohibition was granted.  The secular court held that the churchwardens had no power to make the rate and therefore no right to enforce it in the Church court.  This was ‘a proceeding altogether invalid and a church rate in nothing but the name’ (p.813).

The power to make a church rate belonged at common law to the vestry, not to the churchwardens.  It was agreed that, if no parishioners bothered to attend the vestry meeting, the churchwardens alone constituted the vestry and so could make the rate.  But in this case, of course, a full vestry meeting had been held, and it had declined to make a rate.

The secular court affirmed that the parishioners had a common law duty to repair the parish church, and that the purpose of the church rate was to discharge that duty.  If the vestry refused to levy a church rate, its members were neglecting their legal duty.  The secular court acknowledged that the enforcement of that duty was within the jurisdiction of the Church court.

However, this jurisdiction still did not give the Church authorities the right to impose a church rate.  The only sanctions available to the Church were of a spiritual, not material, nature.  Historically the Church might impose an interdict forbidding divine service in the parish, or might excommunicate the parishioners.  However, as the court truly observed ‘The alteration of men’s opinions and feelings … hav[e] deprived the old remedy of its virtue’ (p.806).

Chief Justice Tindal likened the parishioners’ liability to repair their church to their liability to repair local bridges and highways (p.826).  This suggests that a parish church is a municipal amenity.  However, Burder v Veley obliquely made the point that, by the mid-19th century, the repair of the parish church depended on the voluntary support of the parishioners and others. 

The wish of the vestry in Burder v Veley was eventually realised with the abolition of church rates in 1868.  Only voluntary church rates have been permitted since then.  The common law duty of parishioners to repair their church has not formally been abolished, but the abolition of compulsory church rates has rendered it completely incapable of enforcement.  The only sanction against neglect of the duty is the statutory power, now contained in the Mission and Pastoral Measure 2011, to close the church.

The 1956 Measure does not refer specifically to the provision of materials for worship, but this is also part of the common law duty towards the church.  The whole purpose of repairing the church is to preserve its use as a place of worship.  The materials for worship are mostly specified in Section F of the revised Canons of the Church of England, and include such obvious requirements as a font, communion table, lecturn, pulpit and seats for worshippers. 

The incumbent is responsible for washing and cleaning the communion plate (Canon F3(2)).

The revised Canons require the provision of service registers, including a register of confirmations in the parish (F11(3) and F12(1)).  The Parochial Registers and Records Measure 1978, s.1, provides that a register of baptisms must be provided for every parish church by the PCC.  The Marriage Act 1949, s.7, requires the PCC to provide a register of banns for every church and chapel in the parish in which marriages may be solemnised.

The 1978 Measure imposes stringent standards for the care of parish registers, so long as they remain in parochial custody (see schedule 2).

While the 1956 Measure merely transferred existing common law duties, a more recent Measure, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, imposes additional duties on the churchwardens.

S.4(1) of the 1991 Measure requires the churchwardens to maintain records of all lands and articles appertaining to the church, and of all dealings therewith.  Three documentary records are specified in s.4(1)

(1) the inventory (for goods and chattels)

(2) the terrier (for land) and

(3) the logbook (for dealings with the property, both real and personal).  The logbook must identify the location of all documents relating to dealings with the church and its property.

S.5(1) of the 1991 Measure requires the churchwardens to arrange an inspection of the church’s fabric and contents at least once a year, and deliver an annual ‘fabric report’.  However, the responsibility for acting on information provided by the churchwardens remains with the PCC as a whole.

The Sharing of Church Buildings Act 1969 requires that sharing agreements must provide for the upkeep of buildings shared between the Church of England and other Churches.  Each participating Church ought to contribute towards upkeep of a shared building and also be consulted about this.

However, the administrative responsibility for the management of a shared building remains exclusively with the Church that owns the building (s.3(4)).  Ownership and management of a shared building therefore go together and may not be separated.  However, an agreement may make special provision for the use of movable furniture required for the worship of a participating Church that does not own the shared building.

Parish churches may be involved in sharing agreements under the 1969 Act, but they must remain in the exclusive ownership of the Church of England (s.5).  Thus if a parish church is subject to a sharing agreement this will not affect parochial responsibilities towards it.  However, the parish should be able to call on the other participating Churches for financial support.

The custody of the parish church and its contents, and the liability of the lay rector to repair the chancel of the parish church, are discussed elsewhere in this blog (see the categories ‘Chancel Repair’ and ‘Church Property and Patronage’).

Supervision

The archdeacon retains some of his common law supervisory responsibility for the care of parish churches.  Canon C18(5) provides that he should survey, in person or by deputy, all churches and churchyards in his archdeaconry.  Canon C23(3) requires the rural dean to report any serious defect to the archdeacon.

However, the archdeacon and the rural dean are unlikely to possess the technical knowledge required for an adequate assessment of the fabric of the church.  Thus their responsibilities are now shared with the diocesan advisory committee (‘the DAC’).

The constitution and functions of the DAC are provided by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.  A DAC must include the archdeacons, two elected members of the diocesan synod, representatives of the local planning authority and ‘national amenity societies’, and persons possessing expert knowledge on various subjects pertaining to the care of churches (schedule 1).  The DAC must have at least 12 members, in addition to the chairman and the archdeacons.

The DAC is required inter alia to give advice and to maintain records relating to the care of churches and churchyards, and to publicise methods of conservation, repair and redevelopment (schedule 2).

The Inspection of Churches Measure 1955, as amended by the 1991 Measure, provides that every diocesan synod must approve a scheme whereby all churches in the diocese are inspected by an architect or qualified surveyor once every 5 years.  The synod must maintain a fund to pay for the costs of inspections.  The architect or surveyor must be approved by the DAC, and must make a report of the inspection (s.1).  The quinquennial inspection must extend to any important movable article in the church (s.1A).

The enforcement of the quinquennial inspection is the archdeacon’s responsibility.  If a church in the archdeaconry has not been inspected for at least 5 years, or has not been inspected to the archdeacon’s satisfaction, he may serve notice on the PCC requiring it to organise an inspection, or permit the church to be inspected in accordance with the diocesan scheme.  If an inspection has still not been arranged 3 months, the archdeacon may, with the bishop’s consent, arrange the inspection himself (s.2).

If the diocesan synod itself neglects to establish an inspection scheme, the bishop is required to do so instead (s.1B).

Under the Parochial Registers and Records Measure 1978, the archdeacon must also arrange a quinquennial inspection, with report, of the parish register books and records, at the PCC’s expense, after consultation with the diocesan record office (s.9).  The bishop must also give directions on the care of books and records (s.11(6)).

 

Churches and Churchyards: Freehold, Possession and Custody

Freehold and Possession

Mr Justice Blackburn explained the tenure of the parish church and churchyard in the case of Greenslade v Darby (1868) 37 Law Journal 137 Queen’s Bench:

‘Originally the land was the property of some lay person, which, when the rectory was formed, was dedicated to the Church and conveyed by the patron.  Then it was vested in the rector with fee simple, saving the right and property of the land which the original patron had, including grass, herbage and everything else’ (p.142).

Thus the rector is the freeholder of the church and the churchyard.  The rector may be either a lay rector or the incumbent of the parish.  If the incumbent is vicar of the parish, and not the rector, then his proprietary rights will be subject to the lay rector’s freehold.

The lay rector’s freehold of the parish church was examined in Griffin v Dighton and Davis (1864) 122 English Reports 767.  Mary Griffin was the lay rector.  The vicar and one of the churchwardens (Messrs Dighton and Davis) broke the door of the chancel and changed the lock.  Ms Griffin sued them for trespass, claiming that their action had infringed her freehold.

Chief Justice Cockburn dismissed her claim.  He accepted that ‘the freehold of the church … as well as the freehold of the churchyard, is in the rector, whether spiritual or lay: but this naked and abstract right carries with it … no right of possession, the latter being in the incumbent’ (p.771).

It is notable that the description ‘naked and abstract right’ was applied to the spiritual rector’s freehold, as well as that of the lay rector.  This suggests that, even where the incumbent is himself the rector, his real right over the church and churchyard derives not from the freehold but from the possession conferred on him by induction.

However, in Greenslade v Darby (cited above), Chief Justice Cockburn, together with Blackburn J, was required to decide a lay rector’s rights over the churchyard.  This time he came to a rather different conclusion.

The Rev Mr Greenslade was the perpetual curate (similar to a vicar), not the rector.  Mr Darby was a glebe tenant whose land adjoined the churchyard.  He turned his sheep into the churchyard for the grass.  Mr Greenslade sued.

He lost his case.  Cockburn CJ held that, as perpetual curate, he had no property in the churchyard, only a possession ‘for those spiritual purposes which attach to his office’ (p.142).  Mr Darby was a tenant of the lay rector.  The incumbent’s possession of the churchyard for spiritual purposes did not exclude the lay rector:

‘a lay rector may have the right to the trees growing in the churchyard, notwithstanding that he is not the spiritual minister and … therefore has not, for spiritual purposes, the possession … all rights incidental to the soil may be in the lay rector’.

Griffin and Greenslade suggest that a lay rector’s freehold of the churchyard differs markedly from the ‘naked and abstract’ freehold of the church.  The churchyard is treated as a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The lay rector, as the owner of the fee simple, has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

The New Parishes Acts and Church Building Acts Amendment Act 1869 effectively applied the common law rules governing ancient parish churches to the tenure of the new churches built under the 19th century pastoral legislation.

Thus s.6 of the 1869 Act empowered the original owners to transfer ‘the freehold of any church or chapel, consecrated or unconsecrated’ to the Ecclesiastical Commissioners.  However, after consecration, these new churches became ‘subject to the same laws as to all rights and property therein as … ancient parish churches’.

Whether he is a rector or a vicar, the incumbent may have to compete with other freehold rights over particular parts of the parish church.  It was noted in Jones v Chapman (1869) Law Reports 4 Exchequer 273 that the freehold of side-chapels and aisles in a church may vest in persons other than a lay rector or incumbent (p.279).  Such freeholders are likely to be the successors in title of those who built small chapels for family burials, or (before the Reformation, of course) for the offering of masses for their souls.  Thus it may be difficult to ascertain the freeholders of ancient churches.

The Faculty Jurisdiction Measure 1964, s.1, offers a solution to this problem.  It provides that the consistory court may make a vesting order, inaccurately described as a ‘faculty’, concerning a part of a church building.  Such an order vests the building or structure in question in the freeholder of the church (i.e the incumbent or lay rector).

The court may only make a vesting order in an undisputed case, where the possible freeholders cannot be traced, or have not appeared in the proceedings.

Where no claimant appears the court must be satisfied that ‘all reasonable steps’ have been taken to communicate with them.  It may appoint a solicitor to represent any possible owner, even where none is known.  Even if the freeholder comes forward and consents to a vesting order the wording of s.1 suggests that an order may not be made if he has carried out works to his part of the church during the preceding 7 years.

It is not clear that the spiritual rector’s freehold of the church and churchyard is now even capable of subsisting.  When Griffin and Greenslade were decided, the freehold for life was a recognised legal estate in land.  However, as Chancellor Newsom noted in St. Paul’s, Covent Garden (1974) Family 1, this freehold life estate was abolished by the Law of Property Act 1925.  The only freehold estate in land now recognised at law is the fee simple.  Yet the 1925 Act did not vest the fee simple of church land in the incumbent.  At common law, a corporation sole can have, at most, only a life interest in land.

Modern pastoral legislation seems to ignore the 1925 Act, and simply follows common law.  Schedule 3(6)(1) of the Mission and Pastoral Measure 2011 does not use the words ‘freehold’ or ‘fee simple’, but merely provides that the property of a new benefice shall ‘vest’ in the incumbent, as spiritual rector.  (All incumbents of new benefices are now rectors.)  The Church Property (Miscellaneous Provisions) Measure 1960 likewise provides that land given for use as a church or burial ground shall, on its consecration, vest in the local incumbent (s.6(1)).

Possession and Custody

Churchwardens have no freehold of the parish church, but the Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that the possession of the church is in the minister and the churchwardens.  It took a more nuanced view in Lee v Mathews (1830) 162 English Reports 1119, holding that ‘the minister has, in the first instance, the right to possession of the [church] key, and the churchwardens have only the custody of the church under him’ (p.1120).

This restrictive view was strongly affirmed by the same Court in Ritchings v Cordingley (1868) Law Reports 3 Admiralty and Ecclesiastical 113, where the churchwardens interpreted their right of possession rather too freely.  A ritualist incumbent constructed a kind of ledge or ‘super-altar’ atop the altar of the parish church, without the authority of a faculty.  The vestry passed a resolution that the churchwardens should remove it.  One of the churchwardens forced an entry into the church by picking the lock, and dismantled the super-altar.  He was prosecuted for this in the ecclesiastical court.

Sir Robert Phillimore, then Dean of the Arches, held that the churchwarden had acted illegally, even though the super-altar was itself illegal.  The churchwarden’s action was illegal for the same reason as the super-altar.  It did not have the authority of a faculty.  The vestry had no power to authorise the action.  The proper course was to complain to the ordinary.

Phillimore upheld the incumbent’s proprietary precedence over the churchwardens, and affirmed Lee v Mathews.  He held that the churchwardens only have custody of the church when it is open for divine service, not at any other time.

The churchwardens’ rights over the church were further examined in Howell v Holdroyd (1897) Probate 198.  In the course of a ‘difference of opinion … as to who should have custody of the moneys collected in the church’, a churchwarden forced his way into the vestry, where the vicar and the other churchwarden were counting the money.

This time the consistory court supported the churchwarden.  It acknowledged that a churchwarden has not ‘necessarily at all times a right to enter the church or vestry … [but] only … at proper times and for proper purposes … [otherwise] the vicar might lawfully resist his entry’ (p.204).  However, it agreed that, in this case, the churchwarden ‘was clearly entitled to enter the vestry on this occasion without the vicar’s permission for the purpose of assisting in counting a collection made for church purposes’ (p.205).  This was because he was jointly responsible for the disposal of the collection moneys.  Churchwardens must have a right of possession sufficient to discharge their legal duties.

The churchwardens’ duties include the maintenance of order during divine service.  Canon E1(4) now provides that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’.  This suggests a rather more generous view of the churchwardens’ right of possession than that suggested in Ritchings v Cordingley.

The proprietary rights of the parochial church council (‘PCC’) were discussed in the modern case of St. Edmundsbury Diocesan Board of Finance v Clark (No.2) (1973) 3 All England Reports 902.  This concerned a dispute over the access to a church and churchyard.  The benefice of the church was then vacant.  It was argued that, as there was no freeholder, the Church authorities had no locus standi to take legal action in respect of the access way.  However, the court held that the PCC has a right of way to the church and churchyard, for the purpose of discharging its responsibilities thereto.  As the court explained

‘it would be remarkable if the PCC, though having the power and duty to care for and maintain the churchyard itself, had no power and no duty to care for … the [access] way … there  might be a perfectly maintained church and churchyard to which access was impossible … save through a sea of mud’.

Thus the PCC did have the necessary standing to pursue the legal claim.