Ecclesiastical law

Category: Consecration

Municipal Cemeteries and Church Courts

Cemeteries Order 1977

The Church of England’s rights over municipal cemeteries (as distinct from ecclesiastical burial grounds) are now governed by the 1977 Order.

Article 5 of the Order permits the consecration of part of a cemetery by a Church of England bishop, provided that a ‘sufficient part’ is left unconsecrated and not set apart for any particular religious denomination.

The local burial authority may make an agreement with the Church for the management of the consecrated part of a cemetery (Article 3(3)).

The only direct reference to the faculty jurisdiction over cemeteries would seem to be at Article 13

‘Right of bishop to object to inscriptions … A bishop of the Church of England shall, as respects the consecrated part of any cemetery (including any chapel thereon), have the same rights of objecting to, and procuring the removal of, any inscription on a tombstone or other memorial placed or intended to be placed therein, as he has in the case of churches … and churchyards …’.

Article 2(2) defines ‘bishop’ as ‘ordinary authority’.  This suggests that the bishop’s rights under Article 13 may be exercised by the Church court, which is also an ordinary authority.

Article 14 suggests that the placing of a tombstone in a cemetery (as distinct from the inscription thereon) requires the permission of the burial authority, not the Church court.  It empowers the burial authority to sue the person responsible for the cost of removing an unauthorised tombstone. 

Ecclesiastical jurisdiction over consecrated municipal cemeteries was discussed in the case of Keynsham Cemetery (2003) 1 Weekly Law Reports 66 and by the Court of the Arches in Welford Road Cemetery (2007) 1 All England Reports 426.

The two cases had very similar facts.  The burial authorities laid flat a large number of gravestones in the consecrated parts of their cemeteries, in the reasonable belief that the gravestones were unsafe and might collapse, causing injury.  However, some relatives of the deceased persons objected to this action, and complained to the ecclesiastical court.

The burial authorities then sought confirmatory faculties for the work already done on the gravestones, and faculties for future work.  In seeking faculties, the burial authorities were, of course, conceding the jurisdiction of the ecclesiastical court.  In the end, faculties were granted in both cases, but subject to fairly demanding and expensive conditions.

In Keynsham, the chancellor had initial doubts as to whether he had jurisdiction over the burial authority.  He noted correctly that the 1977 Order ‘confer[s] upon the burial authority general powers of management and repair’ (p.70).  More particularly, the Order empowers the authority to ‘put and keep in order any … tombstone or other memorial’.  The chancellor even acknowledged that ‘these provisions … ostensibly authorise activities including the laying flat of a dangerous tombstone’.

However, the chancellor still concluded that he had jurisdiction.  The reason he gave was that the 1977 Order did not explicitly exclude or abolish his ‘inherent’ jurisdiction over consecrated land. 

This conclusion, obviously, owes much to deputy chancellor Newsom’s famous dictum in St. John’s Chelsea (1962) 2 All England Law Reports 850, that the mere act of consecration is sufficient to confer jurisdiction over the land consecrated.

In Welford Road, the Court of the Arches was free of any doubt as to its jurisdiction, but its reasoning was rather confused.  It held that ‘the faculty jurisdiction comes into play when works are proposed which may interfere with respectful treatment of the dead …’ (p.430).  Later, the Court suggested a faculty was necessary for the ‘protection’ of the burial authority against objections by the gravestone owners (p.431).

The flaws in Newsom’s dictum are discussed separately.  However, even if it could be accepted that the mere consecration of the cemetery conferred some sort of ecclesiastical jurisdiction, that jurisdiction is still subject to the provisions of the 1977 Order.  Ecclesiastical jurisdiction, whether it originates ‘inherently’ in common law or by the express grant of the landowner, is always subject to statute law, and the 1977 Order has statutory authority.

It was agreed in both Keynsham and Welford Road that the burial authorities had acted in the genuine and well-founded belief that the gravestones were in a dangerous condition.  They had not exceeded or abused their powers in any way.  They had complied with the provisions of the 1977 Order.

It is therefore hard to argue that a confirmatory faculty was required, even if an a priori common law ecclesiastical jurisdiction is conceded.  If the burial authorities were acting within their statutory legal rights, they did not require faculties.  A faculty is required only where there is no legal right.

However, it is argued that there is no a priori ecclesiastical jurisdiction over consecrated cemeteries, and that any ecclesiastical jurisdiction depends solely on the 1977 Order.

Article 13 makes clear that the faculty jurisdiction over cemeteries, such as it is, is limited to inscriptions on gravestones, nothing else.  The relatives of a deceased person cannot inscribe a gravestone without the Church’s permission.  If they do so, the Church court can require the inscription to be removed.

The purpose of Article 13 is to ensure that no inscriptions are allowed which are offensive to Anglican doctrine or sensibilities.  Article 13 harks back to a time when ‘low’ Churchmen took offence at Roman Catholic inscriptions inviting prayers for the departed soul, because of the implied doctrine of purgatory.

Neither Keynsham nor Welford Road engaged Article 13 at all.  They had nothing to do with inscriptions.  Moreover, they did not concern the actions of the relatives, but those of the burial authorities.  The relatives were complaining about the actions of the authorities.  However, the Article 13 jurisdiction is exercised only over relatives, not authorities.

Correctly understood, the 1977 Order makes clear that Parliament has entrusted the management of municipal cemeteries to the local authorities.  The ecclesiastical court has no responsibility to ‘protect’ either the local authority from complaints or indeed the remains of those buried in the cemetery.  Protection of the remains is the sole responsibility of the burial authority.

If the local authority exceeds or abuses its powers of management, relatives may complain to the High Court, or to an ombudsman.  They can also lobby the councillors or vote for a change of authority in local elections.  There is no reason for ecclesiastical courts to be involved in a dispute between them.

Consecrated Land: Status and Use

Modern ecclesiastical courts apparently refuse to recognise any distinction between a consecrated church or churchyard and a consecrated but vacant piece of land.

The effect has been to focus the modern faculty jurisdiction on the status of consecrated land (whatever that may be) rather than its use.  Consecration is referred to as if it confers some mysterious indelible ‘character’ on the land consecrated, rather as baptism confers an indelible character on a person.  Indeed the modern attitude to consecration approaches the ‘superstitious veneration that was paid to consecrated ground in times of popery’ (i.e before the Reformation) deprecated by Blackstone (Commentaries, Book 4, p.326).

In the case of Bideford (1900) Probate 314, a highway authority wished to widen an ‘inconveniently narrow’ street using land from an adjoining burial ground.  The burial ground had been closed to further burials.  The strip of land required for the road-widening contained five graves and two headstones.  The parishioners and church authorities were unanimously in favour of the road-widening, and even the personal representatives of those buried on the land consented to it.  However, the consistory court refused a faculty, believing it had no authority to permit a secular use of consecrated land.

On appeal, the Court of the Arches granted the faculty.  It held that a secular use was permissible because the burial ground was closed or ‘disused’.  As such it could no longer be used to bury deceased parishioners.  Thus ‘no question can arise as to the curtailment of parishioners’ rights of burial space for the future …’ (p.327).

The Court also noted that paths across churchyards were legally permissible and suggested that road-widening was lawful by analogy.  There was ‘no difference between a faculty for a path across the churchyard and for a path along one side of it’ (pp.326-7).

In Corke v Rainger (1912) Probate 69, a faculty was sought for a Church school to be built on consecrated land.  The land adjoined a church, and had been consecrated at the same time as the church, but it had never been put to use as a burial ground.

The faculty was granted.  The Court of the Arches agreed that ‘the proposed use [in this case as a school] was a proper one for consecrated land, that it was an ecclesiastical purpose’ (p.75).  Thus the Court’s reasoning was that unused or redundant consecrated land may not be used for a ‘secular purpose’ (subject to the exception for a closed burial ground agreed in Bideford) but may be used for an ‘ecclesiastical purpose’.

This case was to have important consequences for the subsequent development of faculty law.  The Court held that ‘Land once consecrated cannot be used for secular purposes’.  However, it cited no authority for this bald statement, and gave no reason for it.  Yet, a century later, this one bald statement still rules the interpretation and exercise of the faculty jurisdiction.

In a sense, the dictum was merely stating trite law.  All the previous case law and commentary agreed that consecrated land could not be put to secular use.  However, all the previous authorities refer to land

(1) on which a church, or church vestry, is built already, or

(2) on which it is intended to build a church, or

(3) which is in use as a churchyard, or

(4) which is adjacent to a church and required for acts of worship (as in Rugg v Kingsmill (1867) Law Reports 2 Privy Council 59). 

In other words, the earlier authorities all presupposed that consecrated land was consecrated to a particular use.

The great distinction in Corke v Rainger is that the land in question was not a place of worship or of burial, nor even a prospective place of worship or burial, but merely a vacant site.  As the Court noted, the land was ‘increasingly unlikely to be capable of being so used’ for worship or burial (p.73).

Yet even so, the land could still not be put to secular use, because it had once been consecrated.  Its consecration gave the land a status that was independent of any practical use.

If consecrated land is not to be put to consecrated uses it may be desirable to give preference to an ecclesiastical use against a secular use.  Subject to that qualification, however, it is argued that there is no reason why unused consecrated land should not be put to a secular use.

The notion of consecrated land as somehow incapable of secular use received its fullest expression in St. John’s, Chelsea (1962) 2 All England Reports 850.  This case was decided by G H Newsom QC, then deputy chancellor of London and later the author of a standard work The Faculty Jurisdiction of the Church of England (2nd edition 1993).

The title of this case is slightly misleading.  It might have been more aptly entitled Consecrated Land in Chelsea, for it concerned, not a place of worship but a piece of vacant land.  St. John’s church had been consecrated in 1876 but destroyed in an air raid in 1940.  The adjacent vicarage was also destroyed.  The ruins were removed subsequently, so the site had been vacant for 20 years or so when it became the subject of this case.

Following the destruction of the church a temporary place of worship was opened elsewhere in the parish.  The vicar intended to build a new church on the site of the temporary place of worship.  There were no plans to build a new church on the site of the old one.

The vicarage site had been leased for use as a car park, and it was proposed that the church site should also be used as a car park.  Such a use would have yielded a substantial income for the parish.  Thus the vicar and churchwardens sought a faculty permitting the lease of the church site.

However, Deputy Chancellor Newsom refused a faculty.  The consequence of his refusal, of which he must have been aware, was that the church site remained vacant and unused and the parish was denied the rental income.

Newsom refused the faculty because he considered that he did not have power to grant it.  Following Bideford and Corke he concluded that only three uses of consecrated land (other than the uses of worship and burial) are permissible by faculty:

(1) an ecclesiastical use

(2) throwing small parts of a churchyard into a highway (for road-widening) or rights of way across churchyards and

(3) a secular use where the original purpose of the consecration can no longer be carried out (p.857).

A car park is clearly a secular use, not an ecclesiastical one, and it is much more than a right of way.  Although the church site was not in use as a church, and had not been for 20 years, it was not actually impossible that it could be so used in the future.  Thus it could not be said that the original purpose of the consecration could no longer be carried out.  A faculty for a secular use must therefore be refused.

This decision can, of course, be defended as faithful to Corke v Rainger.  It may no longer be of practical relevance, as the disposal of church sites is now effected by statutory redundancy scheme, not by faculty: see s.68(2) Mission and Pastoral Measure 2011 (formerly s.54(2) of the Pastoral Measure 1983).  Nevertheless it produced an absurd result in the particular case.

It also had a bad influence on the development of subsequent faculty law.  It conferred a dubious ‘status’ on consecrated land, independent of its use.  This supposed status, rather than the practical use of the land, became the paramount consideration.  Consecrated land is subject to the faculty jurisdiction, not because it is used as a place of worship or burial, but simply because it is consecrated.

Newsom held that ‘In consequence of the sentence [of consecration] the building and with it the land on which it stands, becomes consecrated land, held to sacred uses and subject to the jurisdiction of this court’ (p.852).  This dictum has passed into law.  Yet it fails to appreciate that use is a question of fact, not law.  The ecclesiastical court can, and should, protect the use of a church or churchyard as such.  In the St. John’s case, however, there was no church (not even ruins), merely a vacant site.  Not was there any real prospect of a church or churchyard being built on the site in the future.  The site was consecrated, but it was not being ‘held’ to any use, sacred or otherwise. 

Thus Newsom was trying to protect a sacred use that had already ceased, but this is a logical impossibility.  To put it slightly differently, he was trying to protect the sacred use of a building, even though that building had ceased to exist 20 years before. 

Following his success in the St. John’s case, Newsom went on to decide St. Peter’s, Bushey Heath (1971) 2 All England Reports 705, this time as chancellor of St. Albans.

Part of the curtilage of the parish church was needed to provide vehicular access to the former parsonage.  The parsonage had been sold for development.  The land involved had never been used for burials, but it was apparently a mere five feet from the church.

This time Newsom granted a faculty.  The developer was allowed to use the land for vehicular access (no doubt at a good price), notwithstanding that vehicular access is a secular use.  

The chancellor did not repent of his earlier decision.  His justification for granting the faculty in Bushey Heath was that the curtilage had not been consecrated.  If the curtilage had been consecrated, a secular use of it would presumably not have been permitted.  This decision, of course, reinforces the notion that consecration confers a legal ‘status’ on land, independent of use.  

The outcome of this case law, from Bideford to Bushey Heath, is therefore as follows: 

(1) a consecrated burial ground may be subject to a secular use, even if this involves the disturbance of bodies buried therein 

(2) unconsecrated curtilage may also be put to secular use, even though in extremely close proximity to a church 

(3) but any secular use of a vacant piece of consecrated land is forbidden.

Wright v Ingle

(1885) 16 Queen’s Bench 379

Certain Acts of Parliament required the owners of any house or land fronting a particular street to contribute to the cost of paving the street.  The trustees of a Methodist chapel (of whom Mr Wright was one) denied liability for the paving charge on the ground that a chapel, being a place of worship, was not a ‘house’.

The Methodist trustees held the chapel building under a lease, not freehold.  The chapel had been duly certified as a place of religious worship, and so was exempt from rates.

The statutory provisions concerning the paving charge were carelessly drafted and obliged the court to deliver a lengthy discourse on the meaning of the word ‘house’.  However, the court concluded that the word, as used in the particular Acts of Parliament, did not apply only to a private dwelling house.  It therefore held that the Methodist chapel was subject to the paving charge.

It may be that the Methodist trustees disputed their liability for the paving charge because a Church of England church would have been exempt from the charge.  They may have felt, understandably, that their chapel should have been treated on the same terms as a church, since it existed for the same purpose, as a place of worship.

The court therefore had to distinguish between a Church of England church and a Methodist chapel.  The difference lay in the fact that the church was consecrated, whereas the chapel was not.  It is true that a church and a chapel are both places of public worship.  Neither is a private dwelling.  Both are physically capable of being converted into dwelling houses.  (Of course many redundant churches now are.)

However, a consecrated church can never lawfully be used as a house, because it is consecrated.  The well known dictum of the court was that

‘By the consecration of such a church the status of the building and of the soil is altered.  The building is by the ecclesiastical law [i.e common law] separated for ever from the common uses of mankind.  It is dedicated thenceforward to sacred services and the law precludes it from being ever capable of use for ordinary secular purposes’ (pp.399-400).

By contrast, the law does not preclude a Methodist chapel from ever being capable of use for secular purposes.  It may be certified for public worship, but it remains private property.  Its owners are at liberty to use their property for other purposes.

This case is often cited in support of the faculty jurisdiction over consecrated land.  However, it should be remembered that consecration, as such, was not an issue in the case.  The Methodist trustees did not claim that their chapel was consecrated, not did they question the consecration of Church of England churches.  Nor did the case refer to the faculty jurisdiction.

It should also be noted that the dictum about consecration refers only to common law.  However, the common law has been superseded by statute law.  The designation of Church of England churches as such now requires statutory authority: see Mission and Pastoral Measure 2011, s.41(1).  Consecration alone is not effective to constitute a new church.

Moreover, the legal effect of consecration does not necessarily last ‘for ever’.  Church buildings are quite often secularised, again under statutory authority.

Consecration and Control

‘The sentence [of consecration] … is definitive and operates in rem.  In consequence of the sentence, the building and with it the land on which it stands, becomes consecrated land, held to sacred uses and subject to the jurisdiction of this [ecclesiastical] court’.

Deputy Chancellor Newsom in St. John’s, Chelsea (1962) 2 All England Reports 850 at 852.

This is a bold assertion by an ecclesiastical judge, even for the early 1960s.   It suggests that, in a post-modern, secular state, the Church still has power to subject secular property to its own jurisdiction and purposes by a unilateral act of consecration.  Does not the owner of the property have some say in the matter? 

What if the bishop were to sneak round to your house and consecrate your front garden while you are out?  Does that mean you would be unable to sell or use your property except with the permission of the Church?

An ecclesiastical judge would be likely to deflect such a hypothesis with a jest or a sneer: of course no bishop would ever do such a thing!  However, the fact that a bishop could do such a thing indicates the first difficulty with the deputy chancellor’s celebrated dictum.

The case of Sutton v Bowden (1913) 1 Chancery 518 is the most detailed judicial examination of the legal effects of consecration.  It offers some guidance through the errors and confusions that have grown up around this subject.  

Sutton v Bowden concerned a hospital chapel, not a church.  The chapel was consecrated by the local bishop, apparently before anybody realised that consecration precluded non-Anglican worship.  (This was before sharing agreements were allowed.) 

The hospital’s executive or ‘house’ committee had sanctioned the consecration and invited the bishop to perform it.  The consecration was also authorised in writing by the trustees of the hospital site.  The title deeds of the hospital were endorsed with a memorandum of consecration.

Mr Sutton applied to the High Court (not the ecclesiastical court) for a declaration that the chapel could be used for non-Anglican worship, as well as Anglican worship.

The High Court refused a declaration.  It held that ‘the act of consecration was duly performed and the chapel has been effectively consecrated [because] the petition for the consecration was signed by trustees in whom the legal estate [of the property] was vested and the request to consecrate was made by … the house committee’ (p.549).

In consequence of this, the chapel could not be used for non-Anglican worship because ‘The effect of consecration is … to limit … the uses [of the consecrated property] to the ceremonies of the Church of England’.

Thus the High Court agreed with Newsom that consecration operates in rem.  However, it made clear that the consecration was valid (and so capable of operating in rem) because the legal owners of the property had given consent in the proper form.  This means that, absent statutory authority, consecration depends for its validity on the consent of the landowner, and not on the authority of the bishop who performs the act of consecration.

The chapel in Sutton v Bowden was private or trust property.  Places of public worship, by contrast, are now designated as such by statutory authority.  Statutory authority will override any requirement of consent by the landowner.

The statutory authority for a new church is now contained in s.41 of the Mission and Pastoral Measure 2011.  S.41(1) provides that a pastoral scheme may

(c) provide for a new church and for it become after …

[1] approval by the bishop, after consultation with the diocesan advisory committee and the pastoral committee, as suitable to be a parish church and

[2] its consecration

the parish church …

S.41(2) provides that ‘The designation by a pastoral scheme as a parish church of a building which … is not [already] a parish church shall not take effect unless and until it has been

[1] approved by the bishop, after consultation [as above] as suitable to be a parish church and …

[2] consecrated.’

Thus consecration can no longer constitute a parish church as such.  The authority of a statutory scheme is required.  The statutory scheme, not the consecration, creates the new parish church.  Consecration is merely a preliminary to the making of the statutory scheme. 

Indeed the provisions of s.41 suggest that the consecration of places of public worship is legally rather superfluous.  If churches are constituted by statutory authority and not by consecration, then what is the point of consecration?  Perhaps the practice is retained out of respect for its antiquity.

Sutton v Bowden must also cast doubt on the suggestion that consecration of a private or institutional chapel, even if done with the owner’s consent and in the proper legal form, confers ecclesiastical jurisdiction over the land.  As mentioned, the case was decided by the High Court, without any suggestion that the ecclesiastical court had jurisdiction.  

There is no doubt that common law recognises an ecclesiastical jurisdiction over churches (i.e places of public, as distinct from private, worship)  and churchyards, but it does not follow that consecration is the basis of the common law jurisdiction.

In the case of Griffin v Dighton and Davis (1864) 122 English Reports 767, Lord Chief Justice Cockburn held that ‘Churches in their origin were dedicated by those who erected them and gave the sites on which they were built for the purposes of religion and the worship of God’ (p.771).  He made no mention of consecration.  Indeed his dictum supports the view that it is the act of the donor in giving the property, and not the consecration of the property, that constitutes ecclesiastical property as such. 

Cockburn CJ further held that churches thus dedicated by their donors were ‘subject to the control of the ordinary’.  This further indicates that it is dedication by the donor, not consecration by the bishop, that confers ecclesiastical jurisdiction over property.  Like the visitor of a secular foundation, the ordinary’s jurisdiction is to ensure that the donor’s intentions concerning the property are being observed, and that the property is being used for its proper purposes.

Phillimore explains the mediaeval process of consecration thus:

‘After a new church is erected, it may not be consecrated without a competent endowment … Which endowment was commonly made, by an allotment of manse and glebe by the lord of the manor, who thereby became patron of the church.  Other persons … often contributed small portions of ground’ (Ecclesiastical Law, 2nd edition 1895, p.1388).

This account makes clear that, in canon law, consecration certified not only the church that was consecrated, but also the endowment that was given to support it.  To identify ecclesiastical jurisdiction only with consecrated land is therefore somewhat lopsided.  The ordinary must control the unconsecrated endowment as well as the consecrated church building. 

It is true, of course, that consecrated and unconsecrated Church property have different immediate uses.  The church building is for worship, while endowment property serves the ancillary purpose of maintaining the incumbent.  This may justify different regimes of control of church and endowment.  But church and endowment are both equally the property of the Church, donated for the purposes of the Church, and therefore subject to ecclesiastical jurisdiction.

If Newsom’s dictum is taken literally, it carries the absurd implication that unconsecrated Church property is not subject to ecclesiastical jurisdiction.  Yet Phillimore observed that ‘Properly speaking a faculty or licence should be obtained from the ordinary before alterations of importance are made in the parsonage-house or buildings’ (p.1263).  Parsonage property is, of course, unconsecrated.