Ecclesiastical law

Tag: Canon E1

Celebrating the Lord’s Day: The Ecclesiastical Regulation of Sunday

‘The Lord’s Day … is ever to be celebrated as a weekly memorial of our Lord’s Resurrection … particularly by attendance at Divine Service …’ (canon B6(1))

This blogpost is intended merely to provide a coherent narrative of the subject, rather than to say anything new. It therefore makes points that are discussed in more detail elsewhere on the blog.

The restrictions on Divine Service imposed as a result of the coronavirus situation are not discussed here. The legal basis of such restrictions – if they have one – is secular, not ecclesiastical.

If the restrictions are gradually being relaxed, now is arguably an appropriate time to pay renewed attention to the Sunday ecclesiastical laws.

Church Attendance

In the case of Jarrett v Steele (1820) 161 English Reports 1290, Sir John Nicholl, Dean of the Arches, held that ‘the possession of the [parish] church is in the [incumbent] and the churchwardens …’. In a later case he asserted the incumbent’s priority over the churchwardens. The incumbent ‘has, in the first instance, the right to possession of the key [to the church], and the churchwardens have only the custody of the church under him’ (Lee v Matthews (1830) 162 English Reports 1119 at p.1120).

Parishioners have rights over the church too. In Cole v Police Constable 443A (1936) 3 All England Reports 107, Mr Justice Goddard (later Lord Chief Justice Goddard) held that ‘the parishioner’s right to attend his parish church … may be described as a common law right. The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for [public] worship …’. However, Jarrett v Steele held that ‘no person has a right to enter [church] when it is not open for Divine Service’, e.g for private prayer.

Thus all legal rights over the parish church serve the same purpose – the celebration of Divine Service. The rights of the incumbent and the churchwardens give effect to the parishioners’ right.

The churchwardens are responsible for managing church attendance. Their duty is ‘[to] maintain order and decency … during the time of Divine Service’ (canon E1). The stave, symbol of the churchwarden’s office, alludes to this function of keeping order. Churchwardens are assisted in their task by the parish sidesmen (canon E2).

Thus the churchwardens arrange seating (canon F7(1)). Parishioners, as is their right, enjoy priority over non-parishioners, who attend only on licence (cf canon F8(3)). Legal rights to occupy particular pews are still possible. The incumbent decides who gets to sit in the chancel.

If there is serious disorder, the churchwardens may require assistance from the secular law. ‘Riotous, violent or indecent behaviour’ in church is a criminal offence (Ecclesiastical Courts Jurisdiction Act 1860, s.2). The bishop has power (virtually never used) to exclude ‘notorious offenders’ from Holy Communion (canon B16). However, the exclusion of a parishioner from Divine Service will require a secular injunction, because such exclusion deprives him of a legal right.

Divine Service is, of course, the responsibility of the incumbent (cf canon C24). Just as the churchwardens are assisted by sidesmen, so the incumbent may be assisted by other clergy (e.g an assistant curate) and by licensed lay ministers. If the benefice is part of a team or group ministry, the responsibility will be shared with the other ministers of the team or group (Mission and Pastoral Measure 2011, ss.34 and 35).

The churchwardens have no direct responsibility for Divine Service, even if the incumbent fails in his. Theirs is ‘an office of observation and complaint, but not of control, with respect to Divine Worship … if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary’ [i.e the bishop] (Hutchins v Denziloe and Loveland (No 1) (1792) 161 English Reports 514, at p.516).

Only if there is a vacancy in the benefice, with no incumbent or licensed priest-in-charge, may the churchwardens acquire responsibility for the provision of Divine Service, and even this depends on the bishop’s direction or request (cf Mission and Pastoral Measure 2011, s.86(2): Dale’s Law of the Parish Church (7th edition 1998, p.73).

In discharging their respective functions, the incumbent and churchwardens must have ‘due regard’ to the ‘safeguarding’ guidance issued by the House of Bishops (Safeguarding and Clergy Discipline Measure 2016, s.5(1)).

Nowadays the time of Divine Service is invariably advertised on a notice placed near the church door (and online). However, a bell is the traditional mode of announcement. (In the old days many parishioners might be unable to read a notice.) The church should therefore have ‘at least 1 bell to ring people to Divine Service’ (canon F8). The bell usually starts ringing 5 or 10 minutes before Divine Service begins. All other bellringing is a matter for the incumbent’s licence. Canon F8 confirms that ‘No bell … shall be rung contrary to the direction of the [incumbent]’.

Divine Service

Provision. Canon B11 and canon B14 require services of Morning and Evening Prayer, and of Holy Communion, on all Sundays. Service must be held ‘in at least 1 church in each benefice or … plurality [of benefices]’. These requirements may be dispensed with for ‘good reason’, but Sunday worship must not be discontinued altogether, even on an occasional basis. The incumbent must provide at least 1 Sunday service.

The revised canons make similar provision for Divine Service in the cathedral, which is the parish church of the diocese (canons B10 and B13). The Cathedrals Measure 2021 empowers the chapter to ‘order the worship of the cathedral’ (s.11(1)(a)). The dean must ‘ensure that Divine Service is duly performed’ (s.12(2)(a)).

Divine Service in a shared building will be regulated by the sharing agreement, which agreement ‘may dispense, to such extent as may be necessary, with the requirement to hold certain [Sunday] services …’ (Sharing of Church Buildings Act 1969, s.4(2)).

Divine Service in an extra-parochial place, such as a college or hospital, will be regulated by the bishop’s licence to the chaplain thereof (Extra Parochial Ministry Measure 1967, s.2).

In a mission initiative, Divine Service will be determined by the bishop’s order constituting the mission (Mission and Pastoral Measure 2011, s.80(13)).

Sunday Communion in private chapels (as distinct from extra-parochial places) is discouraged, ‘so that the residents in the said house may resort to their parish church and there attend Divine Service’ (canon B41(1)).

Form. Church of England services are authorised by canon B1. Canon B1 services comprise

(1) Prayer Book services (which date from 1662) and

(2) modern services.

In view of his responsibility for Divine Service, the incumbent is expected ‘to have a good understanding of the forms of service used …’ (canon B1(2)). However, the incumbent’s choice of service requires the agreement of the parochial church council (‘the PCC’) (canon B3(1)).

Only canon B1 services may be used, subject to 2 very limited exceptions

(1) Canon B5 gives the incumbent discretion to make ‘variations which are not of substantial importance in any [canon B1 service]’. And the incumbent can introduce liturgical material of his own ‘on occasions for which no provision is made under [canon B1]’.

There is unlikely to be much scope for such material in ordinary Sunday worship. And the discretion conferred by canon B5 is still subject to the ‘pastoral guidance, advice or directions’ of the bishop.

(2) If an ecumenical scheme is in force, a special ecumenical service may be held (canon B43(8)).

Language. The normal language of Divine Service is English, but the House of Bishops may approve non-English translations of canon B1 services (canon B42). Use of such a translation requires the permission of the local bishop. Divine Service may be performed in sign language. Latin services are permitted in universities, public schools and ‘such other places of religious and sound learning as custom allows’.

Vesture. The incumbent and other officiating ministers are generally required to be robed for Divine Service, though the law on this important matter has recently been – rather clumsily – amended.

Canon B8, which is entitled ‘Of the vesture of ordained and [other] authorised ministers’ (so presumably lay ministers as well), now provides that the usual liturgical vesture is

(1) surplice or alb and

(2) scarf or stole.

The cassock is no longer mentioned, but is presumably implied when the surplice is worn. (At any rate a surplice looks rather odd without a cassock beneath it.) Nor does canon B8 stipulate that the stole may be worn only by ordained ministers, not lay ministers. Cassock and alb are now often combined in a single vestment.

‘When a stole is worn other customary vestments may be added’, i.e the catholic eucharistic vestments for Holy Communion, or a cope for special occasions.

However, canon B8 goes on to provide that ‘some other form of dress’ – presumably a reference to ordinary clothes – is possible, but only if the incumbent ‘has ascertained [i.e made certain] by consultation with the PCC that [such] other form of dress will be acceptable’. Even if so acceptable, ordinary clothes must still be ‘suitable to [the] office … a sign and mark of … holy calling and ministry, as well to others as to [regular worshippers]’ (canon C27).

A change of robes (e.g assuming or discontinuing eucharistic vestments) likewise requires the consent of the PCC.

Any disputes over the incumbent’s sartorial appearance must be referred to the bishop ‘whose direction shall be obeyed’.

Ornaments. Canon B8 is the modern replacement of 1 half of the famous Ornaments Rubric in the Book of Common Prayer, ‘the ornaments of the minister’. The other half – ‘ornaments of the church’ – are not regulated by the revised canons. Thus cross and lights on the altar, colourful altar frontals, hangings, flowers and suchlike will be regulated, if at all, by the faculty jurisdiction of the ecclesiastical courts.

Ceremonial. The revised canons are also silent about ceremonies, i.e ceremonial acts performed during Divine Service (e.g processions, ‘smells and bells’, elevation of the consecrated Bread and Wine, the Sign of the Cross). It is therefore argued that such actions are at the discretion of the incumbent. The incumbent’s discretion will extend to the appointment of altar-servers or acolytes to assist with ceremonies.

However, the incumbent’s freedom will be limited by any directions or rubrics contained in the form of service that is being used, and by the requirement that all worship must be ‘reverent and seemly’ (cf canon B5(3)).

Music, like ceremonies, is largely a matter for the incumbent’s discretion, as regulated by canon B20. The incumbent must ‘pay due heed to his [organist’s] advice’, but always retains ‘the final responsibility and decision’.

The incumbent must ensure that all musical items ‘are appropriate, both the words and the music, to the solemn act of worship … and to banish all irreverence’. The chosen music must also be appropriate ‘to the congregation‘. This may refer to the culture or churchmanship of the particular parish.

However, there seems to be no requirement for a parish church to have any music at all. Neither the organ or any musical instrument is identified as one of the ‘things appertaining to churches’ prescribed by section F of the revised canons.

The musical position of cathedrals is very different. In St John’s, Margate (1794) 161 English Reports 524, Sir William Scott held that ‘In cathedral churches [organs] would … be deemed necessary and the ordinary [bishop-visitor] may compel the dean and chapter to erect an organ …’ (p.525). All cathedrals are now required to ‘provide for the appointment of a person having the function of supervising music …’ (Cathedrals Measure 2021, s.5(1)(g)), aka the choirmaster.

Posture. Modern ecclesiastical law can do little to regulate the conduct of lay worshippers, other than by way of teaching or exhortation (like canon B6(1), quoted above). However, canon B9(2) provides that worshippers ‘shall have regard to the rubrics of the service and locally established custom in the matter of posture‘, but no longer insists upon the neglected practices of

(1) kneeling and

(2) ‘giving due reverence to the Name of the Lord Jesus’.

Publication. The incumbent must announce any important Holy Days that will fall during the coming week (e.g a major saint’s day, Ash Wednesday, Ascension Day) (canon B7). The preparation of a new electoral roll must be announced (Church Representation Rules 6(4)).

Banns of marriage must also be published at the principal Sunday service, using a prescribed form of words. They must be published from a special register, ‘and not from loose papers’ (Marriage Act 1949, s.7(3)). Banns may normally be published only by an ordained minister, but in certain limited cases a layperson may do so (s.9).

It is argued that the incumbent is bound to publish a pastoral letter or other communication to the parishioners from the bishop, who is ‘the chief pastor of all that are within his diocese’ (canon C18(1))

All publications not required by law will be at the incumbent’s discretion.

Collections are generally taken at Sunday services. The incumbent and PCC now ‘jointly … determine the objects to which all moneys … collected in church shall be allocated’ (PCC (Powers) Measure 1956, s.7(iv)).

Registration. The church must keep a register (possibly in electronic form), in which ‘shall be recorded every service of public worship, together with the name of the officiating minister and of the preacher … the number of communicants [at Holy Communion], and the amount of any …. collections and, if desired, notes of significant events’ (canon F12). It is not clear who does the recording, the incumbent and / or the churchwardens.

However, the register of banns must be signed by ‘the officiating clergyman, or by some person under his direction’ (1949 Act, s.7(3)).

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

Roman Catholic law aptly describes Bible and Eucharist as the ‘twofold table’. Word and Sacrament. The written Word and the Word made flesh.

Ecclesiastical law regulates 4 aspects of the ministry of the Word, albeit rather perfunctorily. However, closer study of these 4 aspects might improve the quality of Divine Service.

(1) Bible. Canon F9 requires the provision of ‘a Bible’, or rather 2 Bibles: 1 for the incumbent and another ‘to be kept in the pulpit for the use of the preacher’. The incumbent’s Bible must include the Apocrypha, and must be ‘of large size’.

Apart from this, the revised canons seem to make no provision for the use of the Bible in Divine Service. In particular there is no provision for the approval of particular translations or versions of the Bible, so presumably any version will be acceptable (unless it contravenes the requirement of reverence) and a matter for the incumbent’s discretion. The Prayer Book (Versions of the Bible) Measure 1965 permits the use of different versions of the Bible in certain circumstances, but this applies only to Prayer Book services, not modern services.

(2) Sermon. Canon B18(1) provides that at least 1 sermon must be preached on Sunday, ‘except for some reasonable cause approved by the bishop’. The liturgical publication Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach, as well as clergy (canon E4 and E7). Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan regulations.

(3) Sunday School. The incumbent is required to provide a Sunday school for ‘children and young people’ (canon B26), i.e persons too young to profit from the sermon. The incumbent may teach the children personally, or appoint ‘some godly and competent persons’ (i.e Sunday school teachers) to do so.

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

(4) Assisted Self-Examination. As canon B29(1) notes, Divine Service includes ‘the General Confessions of the congregation and … the Absolutions pronounced by the priest’.

The incumbent is supposed to teach parishioners ‘from time to time’ to prepare themselves to receive Holy Communion, ‘with such preparation as is required by the Book of Common Prayer’ (canon B15(2)).

The Prayer Book sternly exhorts the faithful ‘to search and examine your own consciences … to bewail your own sinfulness, and to confess yourselves to Almighty God, with full purpose of amendment of life …’.

General public confession and absolution following personal self-examination may not be sufficient in a particular case. Canon B29(2) therefore allows that ‘If … any [person] … requires further comfort or counsel, let him come to some discreet and learned minister of God’s Word; that by the ministry of God’s Holy Word he may receive the benefit of absolution, together with ghostly [i.e spiritual] counsel and advice, to the quieting of his conscience …’.

This wording suggests that private confession and absolution are part of the ministry of the Word rather than the Sacrament. An optional form of preparation for the Sacrament, but not a sacrament per se. This is, of course, consistent with Article 25, which denies that ‘penance’ is a sacrament of the Gospel.

Holy Communion begins with the uncovering of the altar or ‘holy table’ (canon F2). The altar is normally covered with a coverlet of ‘silk or other decent stuff’. This is replaced by ‘a fair white linen cloth’ for Holy Communion.

The churchwardens are responsible for providing the bread and wine (canon B17). The bread may be leavened or unleavened. The wine must be ‘fermented juice of the grape’. As the Legal Advisory Commission recently noted, this means that it must have some alcoholic content.

Only an episcopally ordained priest can officiate at Holy Communion in a canon B1 service (canon B12(1)). It is possible for another minister to officiate at a special ecumenical service, but the Anglican faithful must be warned of the lack of episcopal ordination (canon B43(11)).

However, laypeople assist at Holy Communion in various ways. They may read the epistle and the Gospel. As mentioned, a layperson may preach. Licensed laypeople usually assist with the distribution of the Sacrament (canon B12(3)).

Holy Communion comprises 2 distinct rites

(1) the Eucharist, the prayer of thanksgiving in which the bread and wine are consecrated and

(2) the Communion itself, the consumption or ‘reception’ of the consecrated elements.

The priest is the link between these 2 rites. Having celebrated the Eucharist, he must communicate himself (canon B12(2)).

The revised canons do not in terms require Holy Communion to be administered under both kinds. However, canon B17 obliquely refers to this by providing for ‘a sufficient quantity of bread and of wine for the number of communicants that shall … receive the same’ (canon B17(1)).

All Holy Communion services, from the first Book of Common Prayer in 1549 onwards, have required Communion in both kinds for all communicants. They are supported by Article 30, which invokes ‘Christ’s ordinance and commandment’.

The ‘necessitie’ provision in the Sacrament Act 1547 (at s.8) remains on the statute book, and provides a convenient, 500-year-old figleaf of authority for the present practice of withholding the Communion Cup. However, we have argued elsewhere that

(1) this provision applied only to the liturgy in use in 1547, and, though not expressly repealed, was nevertheless impliedly repealed by the subsequent Acts of Uniformity and / or

(2) even if still applicable, it does not apply to the coronavirus situation. (Parliament in 1547 would have described that as a ‘plague’, not a ‘necessitie’.)

The incumbent is responsible for washing the Communion vessels after the celebration (canon F3(2)). However, the revised canons make no provision for the disposal of unconsumed consecrated bread and wine. Reservation of the Sacrament, in an aumbry or tabernacle, though nowadays a near-universal practice and no longer controversial, remains a matter for the faculty jurisdiction.

Baptism, like Holy Communion, should also be administered on Sunday, ‘at, or immediately after, public worship, when the most number of people come together …’ (canon B21). Private baptism, like private Communion, is discouraged, ‘except for grave cause and necessity’ (canon B22(9)). The font is uncovered for baptism, just as the altar is uncovered for Holy Communion (cf canon F1(2)). The baptism must be registered afterwards (cf canon B39(1)).

Baptism founds the right to be admitted to Holy Communion. This right is now regulated by canon B15A. Communicants are expected to ratify their baptismal promises by episcopal confirmation, or at least be ‘ready and desirous’ to be confirmed. The bishop may permit young children to receive Holy Communion, but only if satisfied of ‘adequate provision for [their] preparation and continuing nurture in the Christian life’, a reference to Sunday School (Regulations of 2006). Practising Christians from non-episcopal Churches are admitted to Holy Communion.

The common law right to attend Divine Service is not explicitly linked to baptism in the authorities. However, possession of a baptismal font was originally the legal test that a building was a church, i.e a place of public worship, and therefore subject to the rights discussed earlier. Thus the font may be the foundation of parishioners’ rights over their parish church, even if baptism per se is not.

The Office of Churchwarden: A System of Checks and Balances

Of all ecclesiastical offices, that of churchwarden is probably the hardest to analyse satisfactorily.  The churchwarden seems to be an ecclesiastical jack-of-all-trades, with a multitude of different pastoral, disciplinary, proprietary and financial responsibilities (even if many of these have now been abolished).  The office has a somewhat shapeless appearance, not fitting neatly into any category. 

Some legal commentaries may do no more than provide a laborious catalogue of the ecclesiastical law relating to the appointment and functions of churchwardens.  Such analysis as there is tends to concentrate on the peculiar dual role of churchwardens as

(1) officers of the parish and

(2) officers of the ordinary (principally the bishop, but also the archdeacon and the chancellor).

As was observed in the House of Commons debate on the Churchwardens Measure 2001, ‘churchwardens … are not only a bishop’s appointees, but the people’s choice.  It is a very unusual position.  Churchwardens have two masters … the people and the bishop’ (Official Report, 20th March 2001, column 312).

This is true, but it does not take full account of the churchwarden’s multi-faceted role in ecclesiastical law.  Further analysis is needed to make sense of the accumulation of apparently disparate functions.

It is argued that the office of churchwarden comprises a system of constitutional checks and balances in ecclesiastical governance.  The relationship between the parish and the bishop / ordinary is indeed one aspect of this system, but only one.  The system actually regulates four different relationships, those between:

(1)  churchwarden and churchwarden

(2)  incumbent and parish

(3)  parish and bishop / ordinary / diocesan authority and

(4)  Anglicans and non-Anglicans.

The original purpose of this system is to safeguard the administration of the property and finance of the parish, the Church’s cure of souls therein, and to maintain the correct balance between diocesan authority and parochial autonomy.   More recently it has been extended to protect the rights of non-Anglican parishioners in the parish church and churchyard, and hence to balance the interests of Anglicans and non-Anglicans.

(1)  Churchwarden and Churchwarden

As is well known, there are normally two churchwardens to a parish.  There may be more.  The rule of at least two churchwardens to a parish is not absolute, being subject to existing local custom or special Act of Parliament (Churchwardens Measure 2001, s.1(1)).  It is therefore still possible to have a parish with one churchwarden only.  However, the general rule of at least two churchwardens provides an obvious safeguard against fraud and neglect in the administration of parish property and finance.  Each churchwarden ‘checks and balances’ the other churchwarden.

Halsbury’s Laws suggests that both churchwardens must concur in bringing a legal action and in doing any other official act (3rd edition 1957, Church Assembly Edition, para 369).  In the case of Northwaite v Bennett (1834) 149 English Reports 781, one churchwarden hired a contractor to repair the church, without consulting the other churchwardens.  He was held personally liable for the expense.  The court held that ‘one churchwarden cannot pledge the credit of the others’. 

(2)  Incumbent and Parish

The rule of common law was that both churchwardens were elected by the parishioners.  Canon 89 of 1603 provided that churchwardens should be chosen by the parishioners and the incumbent jointly.  In default of agreement, canon 89 directed that one churchwarden should be elected by the parishioners (the ‘people’s warden’) and one chosen by the incumbent (the ‘vicar’s warden’).

The 2001 Measure largely reverts to the common law.  It provides that, as a general rule, both churchwardens should be elected by the parishioners.  It seems that the incumbent may vote as well, but does not have a special casting vote (s.5(6)).

However, the incumbent has one important power over the choice of churchwardens.  If he feels that there might be ‘serious difficulties’ between himself and a particular would-be churchwarden ‘in the carrying out of their respective functions’, he can rule that only one churchwarden is to be elected by the parishioners.  The incumbent then chooses the second churchwarden, but his choice is limited to one of the other candidates nominated at the parish meeting.  The incumbent’s choice must be announced before the election of the other churchwarden by the parish.

Thus the incumbent does not exactly have the right to veto the election of a particular candidate, but he can effectively suspend the parishioners’ right to vote for a second churchwarden (rather like the bishop’s right to suspend the exercise of the right of presentation to a benefice).

The relationship between incumbent and churchwardens (whether chosen by the incumbent or the parishioners) was discussed by Sir William Scott in Hutchins v Denziloe and Loveland (No.1) (1792) 161 English Reports 514.

In this case the relationship was evidently poor.  The  Rev Hutchins prosecuted his churchwardens (Messrs Denziloe and Loveland) when they sought ‘to obstruct and and prohibit the singing of the parish [choir], accompanied by the organ’, during divine service.  The churchwardens had acted thus because they ‘supposed that, as they paid the organist and managed the [choir], they [and not the incumbent] were to direct when the organ should or should not play’ (p.515).

However, Scott held that the churchwardens could not intervene during divine service in such a manner, even if the incumbent was himself acting unlawfully.  He affirmed that ‘if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary … if private and decent application to the minister … fail … in preventing the repetition of an irregularity’ (p.516). 

He continued: ‘In the service churchwardens have nothing to do but collect the alms at the offertory: and they may refuse the admission of strange preachers [i.e visiting preachers] into the pulpit’, though, ‘when letters of orders are produced [by the visiting preacher], their authority ceases’.

Thus ‘In all other respects, [the churchwarden’s] is an office of observation and complaint, but not one of control, with respect to divine worship’.

Canon B17(2) suggests that the churchwardens remain responsible for providing the bread and wine for holy communion.  Canon E1(4) affirms that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’.

Canon E1(4) provides that churchwardens must ‘use their best endeavours by example and precept to encourage the parishioners in the practice of true religion and to promote unity and peace among them’.  Norman Doe describes this function as ‘quasi-priestly’ (The Legal Framework of the Church of England, Clarendon Press, Oxford, 1996, p.241).  

These authorities indicate that churchwardens assist, and even share, the incumbent’s cure of souls.  It may be said that assisting and sharing the incumbent’s ministry, whether by providing bread and wine, maintaining order or promoting piety and unity,  is the principal duty of churchwardens.  Having said that, however, churchwardens are not merely the incumbent’s pastoral assistants.  It is also part of their office to scrutinise the incumbent’s performance of his official duties, as Sir William Scott said, by means of ‘observation and complaint’.  In this way the churchwardens ‘check and balance’ the incumbent.  They do this both as officers of the parish, which is the object of the cure of souls, and of the bishop, who shares the cure of souls with the incumbent.  The balance is indeed a delicate one.

The churchwardens’ ability to scrutinise the ministry of the incumbent and any assistant clergy is arguably undermined by the incumbent’s chairmanship of the parochial church council (‘the PCC’) and the ex officio membership of the PCC of all other parish clergy (Church Representation Rules, Appendix 2 and rule 14(1)(a)).  The involvement of the clergy with the PCC is also open to the objection that it leaves the clergy with less time for the ministry of Word and Sacrament which is their raison d’etre

The Church of England report Church and State (1918) included a persuasive recommendation (never followed) by Lord Hugh Cecil that PCCs should be exclusively lay committees under the chairmanship of the churchwardens.

Cecil argued that

‘it would be most mischievous to make the incumbent ex officio chairman of [the PCC].  It would be difficult and unseemly for a Council over which a culpable incumbent presided to take any steps by way of complaint … against him … A far better safeguard would be found in emphasising the distinctness of function of the incumbent and council by excluding the incumbent from membership altogether’ (pp.294-6).

(3)  Parish and Ordinary 

The churchwardens’ status as officers of the parish is much less important than it used to be.  Their common law duties towards the parish church and churchyard have been transferred to the PCC: Parochial Church Councils (Powers) Measure 1956, s.4(1)(ii). 

However, the 1956 Measure did not alter the constitutional relationship between the churchwardens and the incumbent, nor the churchwardens’ status as officers of the ordinary.  Also, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 reversed the trend of modern legislation to some extent by imposing additional duties on the churchwardens, both as officers of the parish and of the ordinary (see s.4 and s.5 of the Measure). 

Canon E1(4) affirms that churchwardens are ex officio officers of the ordinary.  As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church. 

It was held in Fuller v Lane (1825) 162 English Reports 348 that ‘The distribution of seats [in church] rests with the churchwardens as the officers, and subject to the control of, the ordinary.  Neither the ministers nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners’ (p.825).

The 1956 Measure makes clear that ‘Nothing herein contained shall affect … [the churchwardens’] powers, duties and liabilities with respect to visitations’ (s.4(1)(ii)(c).  The churchwardens are required to make written ‘presentments’ to the archdeacon on the state of the parish in advance of the annual visitation (canon G6(1)).   This duty is now shared with the incumbent.  Canon 113 of 1603 provided only that the incumbent might ‘join in the presentments’ if he wished to do so.  The implication of canon 113 is that the incumbent might become involved in the presentments if there was some matter he particularly wished to raise, or if he suspected that the churchwardens themselves were neglecting their duties.

The process of appointing churchwardens alludes to their dual function as officers of both the parish and the ordinary.   The process is now regulated by the 2001 Measure.  The candidates are elected by the parish meeting (s.4(1)).  However, the churchwardens-elect do not take office until they are admitted thereto by the bishop or his representative (s.6(1)).  It is the admission by the ordinary that confers title to the office of churchwarden, not election by the parish.

Elected lay members of the PCC, by contrast, ‘hold office from the conclusion of the annual meeting at which they were elected’ (Church Representation Rules, rule 16(1)).  Being officers of the parish only, they are not required to be admitted to office by the ordinary.  They are automatically admitted when the annual meeting ends.  The PCC is independent of the bishop. 

However, although his admission is required to confer the office, and although the churchwardens are his officers, the bishop / ordinary has no discretion to refuse to admit a validly elected churchwarden if he doubts his fitness for office.  The duty to admit is said to be ‘ministerial’, not discretionary (Phillimore Ecclesiastical Law, 2nd ed, 1895, p.480). 

Thus in R v Sarum (1916) 1 King’s Bench 466 the secular court compelled an understandably reluctant bishop to admit as churchwarden a man who had been convicted of using ‘filthy and indecent language to the rector and in the presence of the rector’s wife’, and in the parish church.  The bishop’s obligation to accept a churchwarden elected by the parish, rather than appoint his own, is an obvious safeguard of parochial autonomy.

As churchwardens are the bishop’s officers they also resign their office to the bishop (2001 Measure, s.7(1)).

(4) Anglicans and Non-Anglicans

In Adey v Theobald (1836) 163 English Reports 157 an exasperated ecclesiastical judge complained of the ‘extraordinary anomaly’ of non-Anglicans officiating as churchwardens.  He noted that ‘There are various duties … by the ecclesiastical law which this person [i.e a non-Anglican churchwarden] could not perform … [for example] the preserving order during divine service’ (p.159). 

Quaker churchwardens were a particular difficulty.  The duty of keeping order in church included (and still includes) ensuring that men remove their hats in church.  At one time, Quakers apparently refused to take their own hats off, even when in church.

However, Sir John Nicholl observed in Palmer v Tijou (1824) 162 English Reports 266 that ‘It is [the churchwardens’] duty to attend church for the very purpose of preserving order … [but] if they are dissenters from the Established Church and from … conscience cannot attend its worship, they are allowed by law to serve the office by sufficient deputy’ (p.267).

The Churchwardens Measure 2001 retains the old rule that churchwardens are elected by all the parishioners, regardless of religion, not just those on the church electoral roll (s.4(2)).

This rule may be anachronistic, as churchwardens no longer have any responsibility for secular local government, only for matters pertaining to the Church of England.  However, parishioners retain common law rights to marry in the parish church and to burial of their remains in the churchyard.  It is therefore thought appropriate for non-Anglican parishioners to retain a limited influence on ecclesiastical administration.  (cf House of Lords Official Report, 30th March 2001, column 543, Bishop of Guildford). 

Nevertheless the judge’s objection in Adey remains valid.  A churchwarden who is not a regular Anglican churchgoer is hardly capable of performing the duties attaching to the office.

The present law is therefore something of a compromise. Non-Anglican parishioners are entitled to vote in the election of churchwardens, but they may only elect a churchwarden who is an Anglican communicant, and enrolled on the church electoral roll (2001 Measure, s.1(3)).   However, in undefined ‘exceptional circumstances’, the bishop may permit the election of a churchwarden who is not a communicant or church elector, but the churchwarden must still be baptised (s.1(4)) (so Quakers are presumably ineligible). 

The Bishop of London may permit a non-communicant to serve as warden of a guild church in the City of London even where the circumstances are not exceptional (s.9(1)).

The Right to Worship

No parish or parishioner has a right to a parish church.  There is no rule of common law that a parish must have a church, or that a parish may not be constituted as such without a church.

S.31(4) of the Mission and Pastoral Measure 2011 follows earlier Measures in providing that a pastoral scheme may create a new parish even though it has no parish church.

However, s.43(1) of the Measure apparently obliges the bishop to provide a place of worship in every parish.  According to s.43(1), where a parish has no church, the bishop must license a building, or part of a building, for public worship.

According to s.43(2), where there is no parish church, the bishop may designate another church, or a building already licensed for worship, as the parish centre of worship (‘PCW’).  The PCW is then deemed to be a parish church.  A parish church may not itself be designated a PCW.  The wording of s.43(2) suggests that a PCW may be designated even if there is a parish church already.

S.41(5)(a) of the 2011 Measure alludes to the common law rights of parishioners in providing that, where a parish has more than one parish church, the parishioners have the same rights of worship in each.  However, it does not define these rights further. 

The rights of parishioners over their church (where there is at least one church) are described by Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976:

‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’. 

The case of Taylor v Timson (1888) 20 Queen’s Bench Division 671 is often cited in support of the right to worship in the parish church.  Master Taylor was a pupil at a ‘reformatory’, evidently a school for delinquent boys.  The boys were not welcome in the parish church.  Mr Timson, a churchwarden, forcibly prevented Taylor from entering the churchyard to attend divine service in the church.  Taylor sued Timson for assault.

The court held Mr Timson liable for assault, because he had no right to prevent Taylor from attending the church.  Taylor was a parishioner and therefore had a right to attend service.

However, the court went further than this.  It held that a churchwarden cannot lawfully prevent a person from attending service, even if he honestly believes that the church is full up, and even if the person is not a parishioner.

The reason for this is that a churchwarden ‘ha[s] no interest in the freehold of the churchyard or the church itself … such an act [of exclusion] … ought, if done at all, to be done by the clergyman’ (p.674).  The churchwarden’s authority is limited to the distribution of seats.  If the seats are all taken, the churchwarden has ‘[no] right to say that people shall not stand in the aisle’ (p.675).  The court declined to speculate what should happen if the church is overcrowded.

This is not a very satisfactory analysis.  First, it is a surprising assertion that only the freeholder of property, acting in person, is entitled to control entry to that property, and that no agent or custodian may do so on his behalf.

A difficulty would arise if the incumbent is not the freeholder of the church.  Presumably the non-delegable power to exclude then vests in the lay rector, but the lay rector may not be available.  This notion in turn conflicts with the judgment in Griffin v Dighton and Davis (1864) 122 English Reports 767, which makes clear that the lay rector’s freehold of the parish church is ‘naked and abstract’ with no right of possession.

It is also difficult to see how the right to allocate seats can, either in principle or practice, be separated from the right to control entry to the church.  If the churchwardens can decide where people should sit, they ought also to decide whether, or where, people may stand.  It is illogical to allow the churchwardens the former right, but deny them the latter.  It also effectively deprives the churchwardens of the ability to maintain order during service.  Someone might decide to stand in the pulpit, or at the altar, thus obstructing the service, yet the churchwardens would be powerless to restrain him.

There is plenty of authority for holding that the churchwardens’ function extends to the maintenance of order during divine service.  The allocation of seats is but one aspect of this function.  The symbol of the churchwarden’s office, the stave, alludes to the maintenance of order.  Canon 19 of 1603 required the churchwardens ‘not [to] suffer any idle persons to abide either in the churchyard or church-porch’.  Canon 28 required them to send non-parishioners back to their own churches.  Canon 60 requires them to repel unauthorised preachers.  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’. 

The parishioner’s common law right to attend service in the parish church is not incompatible with the churchwardens’ duty to maintain order.  The churchwardens are themselves parishioners, and one at least is elected by the parishioners.  For the practical reasons stated, the churchwardens’ duty is really necessary to give effect to the common law right.  Divine service must be orderly, and this requires somebody to keep order.

Of course, it is always possible that the churchwardens may abuse their power, wrongly excluding people they dislike on spurious grounds.  (This may well have been the case in Taylor).  In that event, the excluded parishioner has two possible remedies:

(1) he can complain to the bishop, whose officers the churchwardens are, and /or

(2) he may ask the secular court to enforce his right to worship.

(Master Taylor actually sought an injunction in this case, but the court declined to grant it.) 

However, neither of these remedies denies the churchwardens’ custodianship of the church under the incumbent.

The court in Taylor made the farfetched point that, if the churchwardens prevented a parishioner from attending service, that parishioner might be prosecuted in the ecclesiastical court for his non-attendance.  There was no possibility of such a prosecution by the 1880s, but, if there had been, the parishioner would have an obvious defence, that he presented himself at church but was refused admittance by the court’s own officers.

The case of Cole v Police Constable 443A (1936) 3 All England Reports 107 arose from an altercation in Westminster Abbey.  Mr Cole used to offer his services as a guide to visitors to the Abbey.  The Dean did not approve and gave orders that he be excluded.  Mr Cole persisted in plying his trade.  Police were called, and ejected him.  Mr Cole sued the police for assault.

Although Westminster Abbey is a royal peculiar, not a parish church, Mr Justice Goddard (later Lord Chief Justice Goddard) took advantage of the case to discuss parishioners’ rights over their church.  He doubted the view, suggested in Taylor v Timson, that the right to worship is correlative to the statutory duty to attend service that was imposed by the Acts of Uniformity after the Reformation.  Instead he concluded that

‘the parishioner’s right to attend his parish church must be of far more ancient origin than that [i.e the Acts of Uniformity], and may be described as a common law right.  The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for worship … the right of the parishioner to attend his church … depends, not upon the statute, but upon the wide and common law right’. 

This dictum supports the view that the origin of the parishioners’ common law right is proprietary.  Common law recognises that parishioners have a right of worship in their parish church, because the land and building were first given so that they might do this.  Common law therefore gives effect to the donor’s intention.

In an unpublished dissertation ‘Rights of Passage: The Basis of Lay Entitlement to the Occasional Offices’ (Cardiff University 2002), Jacqueline Humphries concludes that the legal rights of parishioners ‘recall [the Church of England] to its mission to the whole nation’ (p.93).  This may be so, but it would be more accurate to say that these legal rights are concerned, not exactly with the Church of England’s mission to the nation, so much as with its possession of a substantial amount of the nation’s property.

Only a parishioner has a common law right to attend the parish church.  Goddard J held in Cole that no non-parishioner has the right to attend.

Moreover, the right is limited to attendance at acts of public worship in the church.  The Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that ‘no person has a right to enter [the church] when it is not open for divine service’, except with permission of the incumbent and churchwardens.

Thus there is no right to be in the parish church for private prayer.  The regrettable modern practice of locking churches for almost all of the time is not unlawful.

Disorder, or ‘brawling’, in the church and churchyard was formerly punishable by the ecclesiastical courts, which usually imposed a short period of excommunication or suspension ab ingressu ecclesiae on the sinner.  This jurisdiction was abolished by the Ecclesiastical Courts Jurisdiction Act 1860.  Perhaps this encouraged the court in Taylor v Timson to take such a restrictive view of churchwardens’ powers of keeping order in church.  However, the 1860 Act only abolished the ecclesiastical power to punish disorder in church.  It did not abolish the churchwardens’ function of maintaining order. 

Since 1860, offences of ‘riotous, violent or indecent behaviour’ in places of worship and churchyards, and disturbance or molestation of preachers and ordained ministers when they are performing their duties therein, are triable in the magistrates court, which may impose a fine or term of imprisonment of up to two months (s.2 of the 1860 Act).