‘Where a new church … shall … be built … and where the bishop … patron and incumbent … shall certify to the Commissioners … that such new church, being duly consecrated, should be substituted for the … existing church … the Commissioners [may] by instrument … declare [accordingly] and to transfer the endowments … .’ (Church Building Act 1845)
‘A church shall not be consecrated, until necessary provision [i.e endowment] be made for the priest.’ (Council of London 1102, canon 16)
The case of Sedgwick v Bourne (1920) 2 King’s Bench 267 makes a good starting-point from which to study the legal constitution of a parish.
The Commissioners had issued their order under the Church Building Act (quoted above) to substitute a newly built church as the parish church, in place of the dilapidated old church. The new church had been duly consecrated by the bishop. By the same order, the Commissioners transferred all the endowments of the benefice from the old church to the new.
Some years later an energetic new incumbent was appointed to the benefice. He sued Mr Bourne, one of the parishioners, for unpaid tithes.
Mr Bourne defended the claim by pleading the mediaeval canon quoted above (in the original Latin, of course). When the bishop consecrated the new church the endowments of the benefice had not been transferred to it. They were only transferred after the consecration.
On this basis, Mr Bourne argued that the consecration was invalid, because it violated the mediaeval canon which required the endowments to be transferred before consecration. If the consecration was invalid, this meant that the new church was not really the parish church. This in turn meant that the incumbent was not really the incumbent, because he had been inducted into a church that was not a church of the benefice (or indeed any church at all). He therefore had no right to the benefice tithes.
Mr Bourne’s defence failed. The Court held that he had misinterpreted the mediaeval canon. The canon did not require a legal transfer of the endowments prior to consecration. It merely provided ‘that the bishop must satisfy himself that there will be future maintenance secured’ (p.274). Moreover, the bishop was the sole judge of the sufficiency of the endowments. Even if he were mistaken, that would not render the consecration invalid.
However, the essential reason for Mr Bourne’s failure was that the mediaeval canon was simply irrelevant. The substitution of the new parish church was regulated by the Act of 1845, not by the mediaeval canon. The provisions of the 1845 Act had been complied with. Moreover the Act specifically provided that the endowments should be transferred to the new church after consecration, not before.
Sedgwick v Bourne is another example of the confusion which results from failing to distinguish between English ecclesiastical law and canon law. The ecclesiastical law, contained in the Act of Parliament, provided that a new parish church is constituted as such by order of the Commissioners. Canon law provided that a new parish church is constituted by episcopal consecration. English parish churches are governed by English law, not by canon law. The rule of canon law is therefore legally irrelevant, though it may be of historical interest.
Admittedly the 1845 Act (like its successors) contributed to the confusion by retaining the practice of consecration. If the parish church is constituted as such by statutory scheme or order, and not by consecration, then what is the point of consecration? It is legally superfluous. Perhaps the practice is retained out of respect for its antiquity, or to emphasise the Church of England’s continuity with the mediaeval Church.
English ecclesiastical law comprises unwritten common law as well as statute law. Before the 19th century most ecclesiastical law was common law. Much of the 19th century legislation, including the 1845 Act, was introduced to enable what is now called pastoral reorganisation, the creation of new parishes, churches and benefices, and eventually new dioceses.
Phillimore relates that the pastoral legislation was needed ‘to meet the grave and increasing deficiencies in the ministration of … religion in all large towns, the population of the country ever growing and … shifting its centres’ (Ecclesiastical Law, 2nd ed 1895, p.1639). At first, private or local Acts of Parliament were obtained for new churches in particular places. The first public general Act regulating pastoral reorganisation was the Church Building Act 1818. The Church Building Commissioners, later the Ecclesiastical Commissioners, and later still the Church Commissioners, were appointed to administer reorganisation. By the time Phillimore wrote, another 16 public Acts had been passed. To date there have apparently been about 40 pastoral statutes (Acts of Parliament and Church Measures).
The law regulating pastoral reorganisation is now mostly consolidated in the Mission and Pastoral Measure 2011. With 112 sections and 9 schedules, the 2011 Measure is the longest ecclesiastical statute. However, the unrepealed provisions of the Dioceses, Pastoral and Mission Measure 2007 continue to regulate the reorganisation of dioceses.
Pastoral legislation was, and is, required because common law was virtually powerless to effect pastoral reorganisation. This also indicates the distinction between ecclesiastical law and canon law. Canon law empowered the bishop to constitute a new church by consecration. Common law did not grant any such power to the bishop.
The mediaeval canon law concerning consecration and endowment may well explain the bundle of common law rights that attach to parish churches. Parishioners enjoy rights to attend divine service and get married and be buried in the churchyard because the property was originally donated for their benefit. The incumbent’s rights are required to enable him to do his job and earn a living. The bishop’s right of oversight, and the delicate balance of rights between the patron and the bishop, are required to ensure that the church is used in accordance with its proper purpose, the administration of the divine Word and Sacraments.
However, these common law rights are static in nature. They are concerned only with the regulation of existing parishes. Mediaeval canon law transmitted no power to common law to constitute new parishes and parish churches. Hence the need for pastoral legislation.
The canons of 1603 permitted a bishop effectively to group two or more parishes together, by appointing a single incumbent to hold more than one benefice at the same time (canon 41), but the incumbent was required to maintain an assistant curate (canon 47). No other powers of pastoral reorganisation were conferred by the 1603 canons. Nor did the 1603 canons even refer to the bishop’s power to consecrate new churches.
Phillimore confirms that ‘The ecclesiastical arrangement of England [as settled in the middle ages] … remained unalterable, even by the highest authorities of the Church, without the consent of Parliament. For the parish was a division of civil as well as ecclesiastical importance, and, dating from time immemorial, could only be altered by or under … Act of Parliament’ (p.1638).
‘Dating from time immemorial’ meant that the constitution of a parish was sometimes unclear. If a common law right was disputed the court might have to determine the boundary of a parish, or whether a particular building was or was not the parish church.
Thus in Braithwaite v Hook (1862) 7 Law Times 254, a local vicar prosecuted the Dean of Chichester for officiating without permission in a churchyard that the vicar claimed belonged to his parish. However, the court held that the churchyard belonged to Chichester Cathedral, not to the parish. The churchyard was located within the Cathedral precincts. The court therefore concluded that it was extra-parochial because:
(1) ‘the precincts containing no lay families would require no parish priest’ and
(2) ‘the Bishop [of Chichester] would not hold it consistent with his dignity to place a parish priest over his own head’,
referring to the Cathedral’s foundation in mediaeval times.
In Line v Harris (1752) 161 English Reports 54 the court acknowledged that a parish church was normally, but not invariably, identified by ‘the administration of sacraments and sepulture’ (p.57). It concluded on the facts that the disputed place of worship in the case was actually a chapel of ease rather than the parish church.
Pastoral legislation obviates the need for such forensic inquiries. Statutory parishes, churches and benefices should be identified from the scheme or order by which they are constituted as such, without the need to study ancient historical evidence.