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The Parson's Freehold

Published online by Cambridge University Press:  20 October 2008

Rupert Bursell
Rupert Bursell
Affiliation:
Circuit Judge, Clerk in Holy OrdersChancellor of the Diocese of Durham
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At our annual conference next March the proposed topics for discussion are the parson's freehold and clergy discipline. Although it will necessarily touch upon the latter, this article is primarily concerned with the parson's freehold. It is an attempt to consider some of the ramifications of that freehold now that it is a subject once more to be debated by the General Synod. I do not intend to reach any conclusion as to whether or not that freehold should be abolished or, indeed, as to what should replace it if it is. Rather, I would seek to raise questions that should be considered within the legal sphere whilst that debate continues. In so doing, however, I am only certain of three things: first, that the parson's freehold cannot be considered in isolation; second, that it is essential before anything is abolished that careful stock is taken of what actually is being abolished (otherwise the consequences may be other than intended); and third, that equal care must be given to what, if anything, should replace it. Underlying all this is my own conviction that the law is a framework to regulate a society, in this instance the Church. It may be a bastion to protect the weak or it may be a tool misused by the strong but in the last analysis, once others have decided that it should be altered, the lawyer's duty is to advise and then to implement. There is nothing immutable about the ecclesiastical law.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 2 , Issue 10 , January 1992 , pp. 259 - 267
Copyright
Copyright © Ecclesiastical Law Society 1992

References

1. If the parson's freehold is abolished, Should the similar protection afforded, for example, to cathedral canons also be abolished?

2. Revised Canons Ecclesiastical, Canon Cll, para. 1; 14 Halsbury's Laws of England (4th ed., 1975), para. 850.Google Scholar

3. Codex Juris Ecclesiastici Anglicani (2nd ed., 1761), p. 814–815.Google Scholar

4. See Cripps, , The Law relating to the Church and Clergy (8th ed., 1937) p. 279.Google Scholar In the days when tithes were important the incumbent had the right after induction to take the tithes and to sue for them if necessary.

5. Kirton v Dear (1869) LR 5 CP 217 at 220Google Scholarper Bovill, C.J.

6. According to Phillimore, , Ecclesiastical Law (2nd ed.,1895), p. 373Google Scholar, quoting Serjeant Stephen, ‘it is an estate per autre vie’. It has also been suggested that the incumbent has a life interest and the fee is in abeyance (see Rector and Churchwardens of St. Gabriel, Fenchurch Street v City of London Real Property Co. Ltd. [1896] P. 95Google Scholar at p. 101; Re St. Paul's Covent Garden [1974] Fam 1 at 4Google Scholar). However the better view seems to be that ‘the corporation sole possessed a qualified fee to which special restrictions attached, and which was in abeyance only when the office was vacant’: see Megarry, Robert and Wade, H.R.H., The Law of Real Property (5th ed., 1984), p. 52.Google Scholar See, too, St. Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1973] 3 All E.R. 902 at 911e.Google Scholar Section 180(2) of the Law of Property Act, 1925, gives a right of disclaimer over interests, etc. vesting during the vacancy:(cp) Holden v Smallbrooke (1667) Vaugh. 187 at 199.

7. 14 Halsbury's Laws, para. 689.Google Scholar

8. Revised Canons Ecclesiastical, C 24; Halsbury's Laws, para. 698.Google Scholar Neglect of duty is, of course, an ecclesiastical offence: see Bland v Archdeacon of Cheltenham [1972] Fam. 157 at p. 162Google Scholar; 14 Halsbury's Laws, para. 1357.Google Scholar

9. See 14 Halsbury's Laws, paras 692–697.Google Scholar

10. Ecclesiastical Law (2nd ed., 1767), pp. 97–99.Google Scholar

11. Including promotion to a bishopric.

12. See 14 Halsbury's Laws, para. 882.Google Scholar

13. (1817) 3 Mer. 353 at p. 403.

14. Leslie, Paul, The Deployment and Payment of the Clergy, (1964), p. 172.Google Scholar In Partnership in Ministry (1967), pp. 49–50Google Scholar, the Fenton Morley Commission stated: ‘There is something of great value in the unique tradition of independence which the English clergy have inherited, and which in the past the freehold, with the benefice, have helped to maintain. Such past history is remembered with gratitude, though candour compels the comment that as well as being the bastion for the prophet and sturdy reformer, or a support to the timid, the freehold has on occasion served as a wall to protect the lazy and the indifferent, and as a means of perpetuating a ministry which is not for the good of the Church … The Commission … appreciates that the reluctance to part with the freehold springs from a desire to retain the essential status and freedom of a parish priest and not from any desire to provide for self-indulgence … Security and freedom can be assured without the retention of what still survives of the freehold and be based on foundations equally secure.’

15. Op. cit., p. 385.

16. Op. cit., at p. 823.

17. See 14 Halsbury's Laws, para. 924Google Scholar, footnote 4.

18. Ibid.,, footnote 5. The Incumbents' Resignation Act, 1871, (34 + 35 Vict., c. 44), passed ‘to enable clergymen permanently incapacitated by illness to resign their benefices with provision of pensions’, has been repealed but provision has, of course, been made for pensions for clergy who retire by reason of infirmity. Presumably modern bishops are trusted to accept resignations upon such grounds, although even under the 1871 Act the bishop was only empowered to cause a commission to issue ‘if he [saw] fit’!

19. Ecclesiastical Jurisdiction Measure, 1963, ss 55(1)(a)(c),56(1); Ecclesiastical Jurisdiction (Amendment) Measure, 1974, s.1. See, generally, 14 Halsbury's Laws, para. 1374.Google Scholar

20. Ecclesiastical Jurisdiction Measure, 1963, s. 55(2)(3).

21. Bland v Archdeacon of Cheltenham [1972] Fam. 157 at p. 170.Google Scholar

22. Ecclesiastical Jurisdiction Measure, 1963, ss 31 + 49. If the accused does not so consent he may nevertheless plead guilty before the court and leave the decision as to censure to the court rather than to the bishop.

23. Bland v Archdeacon v Cheltenham [1972] Fam. 157Google Scholar and Burridge v Tyler (unreported), (1990Google Scholar; retrial 1991).

24. The example given by the Court of Arches in Bland v Archdeacon of Cheltenham [1972] Fam. 157 at p. 165.Google Scholar One of the charges against the accused was, in effect, one of a contravention of canon 68 of the 1604 Canons by reason of his alleged refusal to baptise a child.

25. See, for example, Davies v Presbyterian Church of Wales [1986] 1 All ER 705Google Scholar, HL. At p. 709h Lord Templeman said: ‘The duties owed by the pastor to the Church are not contractual or enforceable. A pastor is called and accepts the call. He does not devote his working life but his whole life to the Church and his religion. His duties are defined and his activities are dictated not by contract but by conscience. He is the servant of God. If his manner of serving God is not acceptable to the Church, then his pastorate can be brought to an end by the Church in accordance with the rules. The law will ensure that a pastor is not deprived of his salaried pastorate save in accordance with the provisions of the book of rules…’

26. See Ex parte Wachman, The Times, 7 02 1991.Google Scholar

27. It is understood that in at least one diocese an attempt has been made to discipline an incumbent by withholding his augmentation. It would be most surprising if such procedure were not the subject of judicial review.

28. (1991) 2 Eccl. L.J. at p. 234–235.

29. See below.

30. Pluralities Act 1838, s. 95; Pastoral Measure 1968, s. 95, Sch. 9. If the bishop refuses such permission, the incumbent may appeal to the archbishop, who will confirm or grant the permission as may seem proper: Ibid. The bishop may also revoke his licence subject to an appeal to the archbishop: Revised Canons Ecclesiastical, Canon C12, paras 5 + 6.

31. Paul, , The Deployment and Payment of the Clergy, pp. 171–172.Google Scholar

32. Op. cit., at pp. 172–173.

33. See above.

34. Other than, perhaps, on appointment to a bishopric. I presume that this ‘leasehold’ presupposes a right to resign.

35. In fact it is not certain that such a jurisdiction would be welcomed by the secular courts once a freehold is no longer being protected.

36. Partners in Ministry, p. 53.Google Scholar

37. Partners in Ministry, p.34.Google Scholar

38. Op. cit., p. 43.

39. Ibid.,, p. 34.

40. This was to be comprised as follows: ‘… the bishop of the diocese as chairman ex officio; suffragan bishops and archdeacons, together with representatives of the clergy and laity, chosen by the synod in such a way as to ensure that each archdeaconry has an adequate and balanced representation. There should also be nominations from the community at large.’

41. One member of the board should hold a similar office as the clergyman in question.

42. Ibid.,, p. 40–41.

43. Op. cit., pp. 42–43.

44. Presumably this means the Arches Court of Canterbury and the Chancery Court of York, although the original jurisdiction exercised by these courts was abolished by the Ecclesiastical Jurisdiction Measure 1963, s. 82(2)(b): see Ibid.,, s.1(2)(a).

45. The only judge of the Arches Court of Canterbury and the Chancery Court of York necessarily having legal training is the Dean of Arches: Ecclesiastical Jurisdiction Measure 1963, s. 3(3).

46. For example, this view is reported to be the that of the Archbishop of Canterbury: The Times, 2 August 1991; a similar view was expressed by a non-stipendiary curate in Edinburgh, the Reverend Dr J. Roulston, in a letter to The Times dated the 22 March 1991.

47. The Fenton Morley Commission properly draws a distinction between the legal definition of a benefice and ‘a strong psychological factor involved relating to a proper pride of profession’ connected with it: op. cit., p. 51.

48. See the dictum of Lord Templeman in Davies v Presbyterian Church of Wales [1986] 1 All ER 705 at p. 709h, HL.Google Scholar

49. Re National Insurance Act 1911, Re Employment of Church of England Curates [1912] 2 Ch. 563Google Scholar; but see Barthorpe v Exeter Diocesan Board of Finance [1979] ICR 900 at p. 906C,Google Scholar EAT; see, too, Re Employment of Ministers of United Methodist Church (1912) 107 LT 143Google Scholar; Methodist Conference President v Parfitt [1984] QB 368, CAGoogle Scholar; Scottish Insurance Commissioners v Paul 1914 SC 16Google Scholar; Davies v Presbyterian Church of Wales [1986] 1 All ER 705, HL.Google Scholar

50. Revised Canons Ecclesiastical C14; Long v Bishop of Cape Town (1863) 1 Moo PCCNS 411 at p. 445Google Scholarper Lord Kingsdown; Barnes v Shore (1846) 8 QB 640Google Scholar; 14 Halsbury's Laws, para. 481.Google Scholar

51. Partners in Ministry at pp. 22–24.Google Scholar

52. The contract could, of course, have different terms if he were an assistant curate. In any event provision might be made for any obligations of the clergyman towards his parishioners (whether church going or not) as well as for resignation. What contractual terms are appropriate, if any, for a non-stipendiary minister, however?

53. See above.

54. Housing is a related topic, especially when some non-stipendiary clergy are apparently given Church housing. Some argue, too, that the Church owes more than occasional counselling to out of work non-stipendiary clergy/‘worker’ priests.