ecclesiasticallaw

Ecclesiastical law

Category: The Church in Wales: Disestablishment

Wise Virgins: The Cardiff Convention 1917

Controversy

It is easy to forget – and its present leaders may prefer to forget – that the Church in Wales was strongly opposed to its own Disestablishment.  Disestablishment gave rise to ‘more bitterness and acrimony than any political controversy in which the Welsh nation has ever been engaged’ (House of Commons Official Record 1945, vol 409, column 527).  Devolution and Brexit were amicable by comparison.

The Disestablishment controversy was fought on party political lines.  The Liberal Party’s electoral support came from the nonconformist chapels, which resented the perceived wealth and privilege of the Established Church.  In Wales, the Church was widely regarded as an alien, English institution, with only a small number of adherents.

However, the Church was still ‘the Tory Party at prayer’.  For many years, the large Tory majority in the House of Lords frustrated Liberal attempts at Disestablishment.  The Welsh Church Act 1914 was only enacted at the 4th attempt, and only after the Parliament Act 1911 had made it impossible for the House of Lords ultimately to prevent the enactment of legislation approved by the House of Commons.

Disestablishment per se might not have been so controversial.  However, the 1914 Act also provided for a substantial disendowment of the Church in Wales.  Most of its glebe and tithe property, on which its clergy depended for their income, was secularised, transferred to the Welsh local authorities and to the University of Wales (s.8(1)(c)-(e)).

S.13 of the Welsh Church Act contains 2 provisions for the post-Disestablishment governance of the Church in Wales:

‘(1) Nothing in any Act, law or custom shall prevent the bishops, clergy and laity of the Church in Wales from holding synods or electing representatives thereto, or from framing … constitutions and regulations for the general management and good government of the Church in Wales and the property and affairs thereof …

(2) If … it is shown to the satisfaction of His Majesty the King that the said bishops, clergy and laity have appointed … persons to represent them and hold property for any of their uses and purposes, His Majesty in Council may by Charter incorporate such persons … as the representative body.’

S.38(1) clarifies that ‘The expression synod [in s.13(1)] includes any assembly or convention’.

These 2 provisions are different in character.  S.13(1) merely confirms that, having ‘cease[d] to be established by law’ (per s.1), the Church in Wales has the same freedom to govern itself as any other voluntary association.  It does not confer any status on the Church’s synods or assemblies.

S.13(2), by contrast, confers a positive power on the state (‘His Majesty in Council’) to incorporate the Representative Body.  Before exercising this power, the state had to be satisfied that the appointed persons did indeed represent the Church in Wales.

S.8 provided that the property left to the Church in Wales after Disestablishment should ultimately vest in the Representative Body.  However, s.4(1) provided that, at the date of Disestablishment, the property should first vest in the Welsh Commissioners, a state agency.  The Welsh Commissioners would then transfer the property to the Representative Body.

(s.4(2) excepted movable chattels from this rule.  Chattels remained the property of their ecclesiastical owners, then vested automatically in the Representative Body when incorporated.)

Disestablishment, and Disendowment, were originally scheduled to occur no later than a year after the passage of the Welsh Church Act (s.1).  However, the outbreak of the First World War caused Disestablishment to be postponed for the duration of hostilities: Suspensory Act 1914, s.1.  This gave the Church in Wales more time to prepare its future constitution.

Cardiff

The 4 Welsh diocesan conferences were the primary vehicle for the Church in Wales’s forced march to self-governance.  Diocesan conferences were no novelty in 1914.  They had existed in England and Wales since the 19th century, but only on an unofficial, voluntary basis.

Each conference appointed 100 delegates to represent it, led by the bishop: one third clergy, two thirds laity (including, progressively, one lady delegate).  The 4 conferences also passed identical resolutions giving their delegates full power to act on their behalf (12).  These 400 delegates became the Cardiff Convention.  The Convention was therefore a representative assembly of the diocesan conferences, and drew its authority from the diocesan conferences.

The Convention met from 2nd to 5th October 1917, exactly 100 years ago this week.  The venue was apparently Cory Hall, which no longer exists.  There is a group photograph of the delegates which looks as if it was taken outside what is now Cardiff Crown Court.

Nobody in the Church in Wales was more trenchantly opposed to Disestablishment than its senior bishop, Alfred George Edwards, the Bishop of St. Asaph.  (He was, in today’s parlance, a ‘remainer’ or ‘remoaner’.)  By virtue of his seniority, he officiated as President of the Convention.  His opening speech graphically illustrates the Disestablishment controversy:

‘The [Welsh Church] Act proclaims that on the day the War ends it will smash our machinery and rob the safe’.

He continued defiantly:

‘Our answer is clear.  We shall do our best to prevent you [i.e the Liberal Party] doing your worst’ (Convention Official Report, p.7)

The Presiding Bishop was particularly distressed by s.4(1) of the 1914 Act.  Disendowment was bad enough.  But the prospect of the Church’s remaining property also falling into the clutches of a secular agency was dire.  His priority was therefore to ensure that a Representative Body was constituted and incorporated, ready to take over the Church’s property at Disestablishment.

His memoirs contain this poignant entry: ‘to constitute a Representative Body … in January 1915 … I was summoned to London to an all-important committee meeting, and I struggled painfully through it, for on that morning the news had reached me that my youngest son had been killed in action’ (Memories, London, 1927, p.270).

The Cardiff Convention created 2 new institutions for the Church in Wales:

(2) a Representative Body to secure the Church’s property and

(1) a Governing Body to provide for the Church’s governance after Disestablishment.

The Cardiff Convention constituted the Representative Body, but the Representative Body’s authority would come from its Royal Charter, when granted according to s.13(2).  By contrast, the Governing Body’s authority came from the diocesan conferences, via the Cardiff Convention.  The diocesan conferences’ authority came from the freedom conferred by s.13(1).

The constitution of the Governing Body was the embryo of the future constitution of the Church in Wales.  The Cardiff Convention constituted the Governing Body, and thereby enabled the Governing Body to provide a constitution for the entire Church.

The work of preparing the 2 constitutions was led by Mr Justice Sankey, the future Lord Chancellor Sankey, who was then Chancellor of Llandaff.  He took a more positive view of Disestablishment than the Presiding Bishop:

‘Unto us there comes the privilege which is seldom given to a generation, the opportunity of directing and shaping the course of the Church, it may be, for centuries’ (Convention Official Report, p.25).

Nevertheless he warned that ‘There will be chaos in the Church if the Governing Body is not in existence [at Disestablishment] and has not framed its constitution’ (p.18).  He counselled that ‘our watchword [should be] ‘Be ye prepared’.  Forgive me for reminding you of the parable of the wise and foolish virgins’ (p.13).

The Wise Virgins were well supplied with oil to trim their constitutional lamps.  They had a wealth of precedents to draw on.  The Church of Ireland had been disestablished in 1870.  (The Irish Church Act 1869 provided the precedent for the Welsh Church Act.)  In the 19th century, a number of overseas Anglican missions (South Africa, Canada, Australia and New Zealand) had involuntarily separated from the Home Church, when their colonies became self-governing.  When the colonies became independent and self-governing, their Churches were obliged to follow suit.  There is a detailed history of this Victorian colonial constitution-making in Phillimore’s Ecclesiastical Law (2nd ed 1895), at pp.1769-82.

Sankey related that he and his colleagues ‘consulted every constitution of every disestablished Church … circulated questions … to the most celebrated divines and historians’ (p.11).  His method was cautious: ‘We shall only do what is absolutely urgent and what is absolutely essential’.

The draft constitutions reflected this caution:

‘no originality is claim for these schemes.  We are not running after any new thing.  With few exceptions to meet the particular facts of our own case, every paragraph in both of these schemes [for the Governing Body and the Representative Body] is taken from some [existing] constitution which has been tried in the balance and is found not to be wanting’ (p.13).

The Governing Body and the Representative Body are easily confused.  It may be wondered why two separate ‘Bodies’ were considered necessary.  S.13 does not require this.  Perhaps the Representative Body could have served both to govern the Church and to hold and administer its property.

However, Sankey’s researches showed that every other voluntary Anglican Church had two distinct bodies, a synod and a finance committee (p.18).  He suggested that the finance committee/Representative Body should be ‘a small body with trained and expert knowledge’, whereas the synod/Governing Body handles ‘general questions of policy and the control of the many activities and organisations of the Church.  Here you want a larger body … representative … of all shades of thought and opinion’ (p.17).

He might have added that the Representative Body should be accountable for its stewardship of the Church’s property, and this required that it should be separate from, and subordinate to, the Governing Body.

The Governing Body held its first meeting on 8th January 1918, not in Wales, but in Church House, Westminster.  It proceeded to constitute diocesan and deanery conferences, parochial church councils and patronage procedures (p.18) on the basis of draft schemes prepared by Sankey and his colleagues.

The Representative Body was incorporated by Royal Charter on 24th April 1919.

Conclusion

The Disestablishment controversy had a relatively happy ending.  The carnage of the War put sectarian squabbles in perspective.  Any question of disestablishing the Church of England disappeared from the secular political agenda.  Welsh Disestablishment was irreversible, and eventually took place on 31st March 1920:  Welsh Church (Temporalities) Act 1919, s.2.  However, the Liberal-led government was by then heavily dependent on Tory support.  This assisted the Presiding Bishop to negotiate a substantial payment of public money to the Church in Wales, to mitigate the hardship of Disendowment (s.3(2)).

Sankey’s cautious approach of following precedent and ‘only do[ing] what is absolutely urgent and what is absolutely essential’ has stood the test of time, as he hoped it would.  While it has changed in matters of detail, the structure of the Constitution is still largely his work.  Its longevity compares favourably with the first Roman Catholic Code of Canon Law, which was also promulgated in 1917.  The 1917 Code was a great juristic achievement, but it was found to be unsatisfactory and out of date in practice almost immediately, and was eventually abrogated by the present Code in 1983.

There is a masterly analysis of Sankey’s work by Jeffrey Gainer, ‘John Sankey and the Constitution of the Church in Wales’ (LLM dissertation, Cardiff University, 1994).

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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.

Ecclesiastical Law and Disestablishment

The Welsh Church Act 1914, which provided for the disestablishment of the Church in Wales, was discussed by the House of Lords in the case of Representative Body of the Church in Wales v Tithe Redemption Commission (1944) 1 All England Reports 710, in which they overruled the decision of the Court of Appeal in Tithe Redemption Commissioners v Commissioners of Church Temporalities (1943) 1 All England Reports 605.

Interestingly, the law lords who decided the Tithe Redemption case were headed by the then Lord Chancellor, Viscount Simon, who, as the Liberal Attorney-General Sir John Simon, had successfully promoted the bill which became the Welsh Church Act.

The Tithe Redemption case prompted Lord Denning to formulate his famous thesis on the division of ecclesiastical law into ‘general’ and ‘technical’ law in an article ‘The Meaning of Ecclesiastical Law’ (1944) Law Quarterly Review, vol 60, p.235.  This article has been discussed elsewhere.  Lord Denning defined ‘technical’ ecclesiastical law as ‘the law administered by ecclesiastical courts and persons’ (p.236), though his analysis concentrated rather more on the courts than the persons.

As Lord Denning noted, the Welsh Church Act does not contain any definition of ecclesiastical law.  Nor did the Irish Church Act 1869, which effected the disestablishment of the Church of Ireland and provided the model for the Welsh Church Act.

Despite the lack of a definition, Lord Denning argued that the structure of the Welsh Church Act supported his suggested distinction between technical and general ecclesiastical law.  He noted that the Act makes specific provision for certain matters ‘which would fall within ecclesiastical law in a general sense … such as rights of patronage, vesting of Church property and so forth’ (p.236).  Where specific provision is lacking, any ‘ecclesiastical  law’ referred to in the Act must be restricted to that administered by ecclesiastical courts and persons.

S.3 of the 1914 Act refers to ecclesiastical law in the following terms:

‘ecclesiastical courts and persons … shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1))

‘ecclesiastical law shall include … such law so far as it is embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892 or the Ecclesiastical Dilapidations Acts 1871-2, or any other Act of Parliament’ (s.3(4))

S.38(1) of the Act defines ‘ecclesiastical person’ as ‘the holder of any ecclesiastical office who is in holy orders’.

It must be acknowledged that s.3, considered in isolation, does tend to support Lord Denning’s analysis.  It seems to identify ecclesiastical law with clergy and Church courts.  The Acts of Parliament referred to in s.3(4), which have now all been repealed, regulated the functions of the clergy.

However, it is argued s.3 has to be understood in the context of the Welsh Church Act as a whole.  The long title of the Act makes clear that the purpose of the Act was

[1] ‘to terminate the establishment of the Church in Wales … and

[2] ‘to make provision in respect of the Temporalities thereof and …

[3] ‘other purposes in connection with [1 and 2]’.

S.1 of the Act provides that ‘the Church in Wales … shall cease to be established by law’.  ‘Established by law’ means ‘constituted by law’.  ‘Temporalities’ refers to property and property rights.

The Welsh Church Act therefore had a twofold purpose

(1) to reconstitute the Church in Wales on a voluntary basis and

(2) to dispose of its property.

The references to ‘ecclesiastical law’ in s.3 of the 1914 Act should therefore be understood in the context of the Church’s establishment.  The ‘establishment’ of the Church is its constitutional structure, its organisation.  The law of the Church regulates its function.  The function of the Church in Wales, as of any Church, is the administration of the Christian religion.  Ecclesiastical law regulates the administration of the Christian religion.

Thus the 1914 Act reconstituted both the Church’s

(1) structure / organisation and

(2) its function

on a voluntary basis.  Henceforward the members of the Church in Wales would decide its organisation and function on the basis of rules agreed between themselves, though subject to the secular law.

Thus the 1914 Act made a distinction between the Church’s religion and its property, not between its ‘general’ and ‘technical’ law.  It is rather absurd to divide the administration of the Christian religion into ‘general’ and ‘technical’ aspects.

It may indeed be difficult, even impossible, to define the exact boundaries of ecclesiastical law.  Where does the administration of religion end and secular governance begin? 

The House of Lords specifically declined to answer this question in the Tithe Redemption case.  ‘It is not … necessary to pronounce finally on these niceties’ (Viscount Simon, p. 713).  ‘I am not clear as to the precise effect of the very general words of s.3’ (Lord Wright, p.717).  ‘I do not desire to dogmatise as to the effect of s.3’ (Lord Porter, p.718).  ‘I do not think it necessary to determine the exact scope of that ‘ecclesiastical law’ … which by s.3 … is to cease to exist as law’ (Lord Simonds, p.720).

The scope of ecclesiastical governance was sharply reduced in the mid-19th century, before the Irish Church Act and the Welsh Church Act were passed.  By 1914 it was almost exclusively liturgical, restricted to activity within the church and churchyard.  However, ecclesiastical governance continued to engage rights of property.  (It still does, of course.)  The function of the 1914 Act was therefore to regulate the future relationship between ecclesiastical governance and property.

As its name implies the Tithe Redemption case was concerned with tithes (or tithe rentcharge, which was derived from tithes).  Tithes were connected to the administration of religion, hence to ecclesiastical governance, because they were used to pay for the maintenance of the Church.  A tithe owner was liable at common law to repair the chancel of the parish church.

But, as Lord Wright noted, tithe or tithe rentcharge is ‘an incorporeal hereditament … a well-known type of real property’ (p.717).  Ownership of tithe rentcharge and the liability to pay it are questions of property law, rather than ecclesiastical law.

The Welsh Church Act provided, at s.8, that tithe rentcharge in ecclesiastical ownership should in effect be secularised.  Ownership was to be transferred from the Church to the Welsh local authorities and to the University of Wales.

However, s.28(1) provided that

‘Nothing in this Act shall affect … the liability of any lay impropriator of any tithe rentcharge to repair any ecclesiastical building [i.e the chancel], but a [local authority] shall not … be liable for the repair of any ecclesiastical building’.

Thus s.28(1) expressly exempted the local authority tithe rentcharge from the liability to repair the chancel.  However, no such exemption was granted to the University, or to any other lay owner (‘impropriator’) of tithe rentcharge.

The Court of Appeal reasoned that chancel repair was a duty imposed by ecclesiastical law, and hence was governed by s.3 of the 1914 Act.  This meant that the duty had ceased to be a legal duty where the tithe rentcharge was in ecclesiastical ownership, because ecclesiastical law had ceased to exist as law after Disestablishment.

The University had inherited tithe rentcharge that was formerly in ecclesiastical ownership, at Disestablishment.  It could not therefore be liable for chancel repair.  The legal duty to repair the chancel could only attach to tithe rentcharge that had been in lay ownership before Disestablishment.

The House of Lords disagreed with this analysis.  It held that the question of chancel repair liability was governed by s.28(1), not by s.3.  The University was a ‘lay impropriator’ within the meaning of s.28(1), and therefore liable for chancel repair.  The exemption granted to local authorities did not extend to the University.  If chancel repair had ceased to be a legal duty after Disestablishment, the exemption in s.28(1) would not have been necessary.

Tithe rentcharge was actually abolished, or ‘extinguished’, by the Tithe Act 1936, passed over 20 years after the Welsh Church Act.  In consequence, the liability of owners of tithe rentcharge for chancel repair was also abolished.  The 1936 Act provided for a system of compensation.  Former lay owners of tithe rentcharge received compensation for the loss of their ‘incorporeal hereditament’.  However, the Church also received compensation, because it had lost a legally enforceable right to the repair of its chancels.

Thus the practical effect of the decision in the Tithe Redemption case was that the Church in Wales, through its Representative Body, received compensation under the Tithe Act 1936, because it had lost the legal right to require the University of Wales to repair some of its chancels.

Marriage Fees and the Church in Wales

According to its internet website (accessed 14th May 2012) the Church in Wales charges fees for publishing banns of marriage and for solemnising marriage in church.  However, the legal authority for these marriage fees in unclear.

The Welsh Church Act 1914 provides that ‘as from the date of Disestablishment [in 1920] … the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1)). 

However, the later Welsh Church (Temporalities) Act 1919 introduced an important exception to this provision:

‘Nothing in this Act or in the Welsh Church Act 1914 shall affect … the law with respect to marriages in Wales’ (s.6).

If parishioners have the right at common law to the publication of their banns and solemnisation of their marriages in the parish church, how can the Church in Wales charge fees for performing these services?

The Church of England charges marriage fees under the authority of Fees Measures.  Church of England Measures have statutory authority, and so are capable of overriding or restricting common law rights.  However, Fees Measures only apply to England, not Wales.

Common law held that no fee could be charged for marriage, unless the Church could prove an ‘immemorial custom’ in the particular parish, i.e that a marriage fee was paid in that parish from before the time of legal memory.  Such a custom is very difficult to prove, and any customary fee would only be worth a few pence in the money values of today.  Common law also held that a customary fee could not be adjusted for inflation (Bryant v Foot 1867 Law Reports 2 Queen’s Bench 161).

Some 19th century Acts of Parliament provided for marriage fees to be charged in the ‘new parishes’ created at that time.  However, any 19th century fees, like customary fees, would only be worth a few pence today.

The Church in Wales also charges a fee for the grant of a marriage licence.  It is probably entitled to do this.  It is said that ‘a licensor stands on his own price’.  By definition, there is no right to a licence.

However, if marriage by banns is a legal right, it is difficult to see how the Church in Wales can have the legal right to charge fees for this, unless statutory authority is given.