The Second-Oldest Law in England

Saint Mary's Church at Marlingford, in Anglo-Saxon times held by a hereditary priest

(The political views expressed below are those of the author of the article, who does not claim to speak for the editor of The Rural Voice or for any of its other contributors.)

In last week’s blog, James Lloyd promised that one day he would explain the difference between a “rector” and a “vicar”. That day has come. You lucky people.

The former treatise have I made, O Rural Voice loyalists, of how the system of parish churches, for so long an integral part of the geographical, social and cultural landscape of England, originated as little more than chapels for the tenants of landlords. Some landlords, of course, were themselves bishops or abbots and were motivated by pious duty but the majority were laymen and one cannot help suspecting that, though many founders were sincerely religious, many others may have thought of it as a means of buying shares in Heaven. There are even some examples, such as Marlingford in Norfolk, of churches donated to successive generations of the same family – clerical celibacy was outmoded in England long before the Reformation.

By the twelfth century, bishops and landlords had reached a concordat, whereby the landlord would recommend to the bishop a priest, whom the bishop would appoint to serve that church. In addition to a church, the priest also had a house and parcel of land to support him, known as the glebe, while the law dictated that each of his parishioners should give him one tenth of his income, known as tithing. This did not originally mean abstract money but material possessions: A woodcutter had to give the priest every tenth tree that he felled, a baker every tenth loaf that he baked et cetera. The whole package of church, house, glebe and tithes was known collectively as a benefice and was considered a feudal tenement.

The possession of a benefice made the priest wealthy and powerful and so parish priests became known as rectors, from the Latin word for a ruler. It was not, however, an entirely beneficial arrangement, since it meant that the rector was responsible for maintaining the upkeep of his church’s chancel out of his own income (repairing the nave fell upon the congregation).

In the thirteenth century, a new trend grew up. Bishops, abbots and colleges started obtaining royal charters to appropriate the benefices on their lands directly to themselves, assigning the glebe to their own use and taking the tithes of grain, hay and wood, which were considered the most valuable. Legally, this made the bishop, abbot, cathedral, monastery or college the permanent Rector but, since the bishop (or whoever he might be) was not going to come down to the church each Sunday to take the services, a resident priest continued to be appointed, in the fashion thitherto customary but whose benefice was now reduced to the house and the less valuable tithes. This stand-in for the absentee rector and was known as a “vicar”, from the Latin “vicarius”, meaning a representative. A vicar was poorer than a rector but at least he was not obliged to finance the repair of the church. That obligation remained on the titular rector, who owned the glebe and the greater tithes (which, obviously, he himself did not have to pay).

The Break with Rome saw the dissolution of the monasteries and the re-foundation of previously monastic cathedral communities. Their appropriated rectories were seized by the Crown and then handed out to new beneficiaries. Some cathedrals simply got their old properties back again but many other rectories, along with other monastic lands, were handed out to loyal courtiers, with the bizarre yet somehow very English result that a layman was, in law, the Rector of a parish church, free of the obligation to pay tithe on his land and entitled to the greater tithes of the parishioners but conversely required to repair the chancel, while the Vicar continued to be nominated by another layman and appointed by a bishop and entitled to receive only the lesser tithes. The owners of rectories are technically known as “appropriators” or “impropriators” according to whether they are an ecclesiastical corporation (e.g. a cathedral chapter) or a layman but are commonly known as “lay rectors” for short.

Over the subsequent centuries, matters became increasingly complicated. In the nineteenth century, tithes were commuted to cash payments and in the following century were phased out altogether. This had the unintended consequence of turning rectories from an asset for their owners into a pure liability. The minority of parish priests who are still rectors and own their glebe were in 1923 relieved by Act of Parliament of the obligation to repair their chancels from their own income. Lay rectors, meanwhile, commonly let their glebe to farmers for a rent payment (indeed, the word “farm” was originally an Old English word for rent) and in most cases split them up into separate parcels, many of which have now been given over to development.

As a result of these changes it can be difficult to identify what lands even are glebe and the obligation to repair the chancel can wander from the titular lay rector. In recent years there have been cases of hapless middle-class homeowners who have been surprised to receive a bill from the local parish church, a bill that they can be sued for not paying.  In 1990, a couple was charged a hundred thousand pounds by the Parochial Church Council of Aston Cantlow in Warwickshire. Twenty years later, an unsuccessful legal battle had inflated the bill to three hundred and fifty thousand pounds and they could raise the money only by selling the home that had caused them the trouble. By a cruel irony, they had been married in that church.

The controversial chancel of Aston Cantlow

In consequence, there have been calls from the Law Commission and even from the General Synod for chancel repair liability to be abolished, calls that the Blair Government (rather surprisingly) refused, instead arranging a compromise: All chancel lands had to be registered with Her Majesty’s Land Registry before the thirteenth of October 2013, in order to make it easier for landowners to check the liability of their property. Any liability not so registered before that date would lapse.

Despite this concession a Private Members Bill was launched in the House of Lords in 2014 to abolish chancel repair liability altogether. It gained little traction and died at the end of the session – and quite right too. What people calling for abolition are choosing to forget is that these lands were originally donated to the church for its upkeep and have entered into lay hands only on the understanding that that upkeep will continue to be met. That people want to avoid the trap of chancel repair liability is understandable but surely it would be more just to transfer glebeland back to the church. To keep the land in lay hands while abolishing the condition under which the church surrendered it would be theft, plain and simple.

Thou shalt not steal.

Photo credits: The Church of Saint Mary in Marlingford (Evelyn Simak) / CC BY-SA 2.0

The Parish Church of Saint John the Baptist, Aston Cantlow (David Dixon) / CC BY-SA 2.0

(N.B. Chancel repair liability is not, in fact, the second-oldest law in England but for the purposes of the title we shall pretend that it is.)


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