Ecclesiastical law

Tag: Jarrett v Steele 1820

Churches and Churchyards: Freehold, Possession and Custody

Freehold and Possession

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Possession and Custody

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

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

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

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

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

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

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

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

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

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

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).