CHAPTER III.

OF SEATS AND PEWS IN CHURCHES.

Before the Re

formation.

SECTION 1.

In old Parish Churches.

BEFORE the time of the Reformation no seats were allowed in churches, nor any distinct apartment in the church assigned to distinct inhabitants, except for some very great persons; the seats that were, were movable, and the property of the incumbent, and so in all respects at his disposal and many wills of incumbents are to be seen, whereby they did of old bequeath the seats in their church to their successors, or others, as they thought fit. Athon and Lindwood are silent in the case. The common law books mention but two or three cases before this time, and those relating to the chancels, and to the seats of persons of great quality. But it does not follow that the distinct apartments here spoken of were pews in the body of the church; but aisles or private chapels may very probably be intended. It is only natural to suppose that the person by whom the church was first founded may have reserved some particular part of it to the use of himself, and the successive owners of his domains; and although it is now the received opinion that a seat in the nave of a church may be prescribed for as belonging to a house, yet it was formerly much doubted, and in fact denied; and overruled with regard to the right of the ordinary and the jurisdicPresent state of tion of spiritual authority. But the state of the law, as at present settled, with respect to pews in churches, is very clear and satisfactory; for, as is said by Lord Coke, as church is a place dedicated and consecrated to the service of God, and is common to all the inhabitants, it therefore belongs to the bishop to order it in such manner as the service of God may best be celebrated, and that there be no contention in the church. Primú facie, therefore, in the absence of any prescription by custom, or of any faculty clearly established, which would be exceptions to the genechurchwardens. ral rule, and also with the exception as to the chief seat b 12 Rep. 105.

the law.

Right of dispos ing of all seats

and pews is in

the ordinary and

a Gibs. 221.

in the chancel (which custom appropriates to the rector, whether lay or ecclesiastical, and sometimes to the vicar), the bishop, as ordinary of the diocese, or in practice the churchwardens, as the parochial officers of the ordinary for this and similar purposes, have the sole right of disposing, ordering, and arranging all seats and pews in the body of the church; and, as it seems now to be the better opinion, in the chancel also. And as the churchwardens exercise this power as the officers of the ordinary, it seems to follow that there could be no such thing as a custom in a parish for the churchwardens to make distribution of seats independently of the ordinary; although this appears to have been doubted. For the right, however long it might have been exercised, could not have been adverse to the ordinary; but, on the contrary, would be presumed to have been exercised by him through his officers, or with his permission and concurrence; so that, as was said by North, C. J., the churchwardens cannot in this matter jostle out the authority of the ordinary.

It being established that the parishioners have the right to the use of the church, and that the churchwardens, as the officers of the ordinary, are to regulate and arrange that use, it remains to be seen in what manner the parishioners, or any particular parishioner, might compel the churchwardens to make such arrangements in their favour, and what remedy the parishioners, for whom the churchwardens neglected to provide a seat, would have against them; and this would seem to be the same whether a parishioner had been removed from a seat by the churchwardens, or whether no seat had been provided for him.

obtain seats from the church

The case of Walter v. Gunner and Drury was a pro- Proceeding by ceeding against the churchwardens of Teddington, calling parishioners to on them to show cause why they had not seated or caused to be seated the plaintiff and his family in the parish wardens. church, according to his situation and condition, he being a principal inhabitant and parishioner, and having duly applied to them to be so seated. An appearance was given for the churchwardens, under protest, admitting the averment set forth in the citation, that he is a principal inhabitant, and that he had applied to them, at the same time alleging, that this was not sufficient in law to entitle Mr. Walter to cite them in this form; and further, that the church was so small, and the number of inhabitants so much increased, that many persons were obliged to submit to considerable inconvenience: some in sitting with others, some in having no seats; that many seats were held by May v. Gilbert, 2 Bulst. R. 151.

c Gibs. Cod. 226.

D D

The most con

custom, attached to houses in such a manner, that though the owners did not use them, they were occupied by their tenants; that the churchwardens have not interfered with such customary possession; that the house which Mr. Walter occupies was built by a Jew, who never applied for a seat; that in 1796, Mr. Walter applied for a seat, and a vestry was called, at which it was determined that persons should have permission to erect pews in a gallery on payment of five pounds to the parish; that this offer had not been accepted; that the plaintiff had refused to pay the church rate unless he was seated; that it was then proposed that a vacant place should be enclosed; and notice was given to him that a vestry would be held for that purpose, but he did not attend; that the churchwardens are desirous of accommodating all persons as well as they can without disturbing the possession of others; that they had no right to dispossess them; but were ready to submit to any order which the court might make upon them.

On the other side it was alleged, that, by law and usage, all pews, except those held by faculty or other legal title, ought to be distributed amongst actual parishioners; that many of the largest were assigned to persons not living or having lands in the parish; that others were annexed to houses, and let out by the owners to persons not living in the parish; that it was in the power of the churchwardens, by a legal exercise of their authority, to seat the complainant; that his house was one of the largest in the parish; and though he had applied in 1796, and the following years, nothing effectual had been done. It was replied, that the pew held by Seton is reputed to be annexed to the house of Mr. Retford, and that part of his family used to sit there; and the other, occupied by Lady Murray, was annexed to another house, called Comb House, which was now a school; and that the pew being too small for the boys, they were allowed to occupy seats in the gallery at a certain rent; that the churchwardens did not consider themselves to be authorised, by virtue of their office, to disturb the possession of these parties.

Sir W. Scott said, "I think the process has issued very venient mode of properly in this case, and that this is a convenient mode of proceeding. proceeding, by citing the churchwardens, in a civil suit, to show cause, &c., as in this citation. I do not think that it was necessary to allege that any particular pew was vacant, as it would be a sufficient return, on the part of the churchwardens, to aver, that they were unable to comply with the request, on account that there were no such vacancies. If that return was made and duly established, I fear it might be entitled to much consideration; as in the enlarged

population of parishes in the vicinity of this town, it may really not be in the power of the churchwardens to make immediate additions to the fabric, or to build chapels at once for the accommodation of the inhabitants. The return, in this case, is not of that kind. It consisted of two parts; that notice was given of a vestry, and that an offer was made that the party might erect a pew, on a condition which is not strictly legal, that he should pay the parish for it. It is clearly the law on this subject, that a parishioner has a right to a seat in the church, without such payment; but I think the return is bad on another ground, for although it might be sufficient if there was no pew vacant, yet if there are existing pews improperly occupied, the mere offer of a permission to erect a pew is not a good return.

held under

"The other part of the return is bad also, since it pleads a custom which is evidently illegal, and cannot be supported; that pews are appurtenant to certain houses, and are let by the owners to persons who are not inhabitants of the parish. All private rights in pews must be held Private rights in under a faculty, or by prescription, which presumes a pews must be faculty, and no faculty was ever granted to that effect; for faculty or prethe ordinary must have exercised his discretion, to depo- scription. pulate the church of its own proper inhabitants, if he could have granted such a faculty. The plea goes on to state that the churchwardens have not ventured to disturb such occupiers; to which it is answered justly, that they have not done their duty, for they ought to have prevented an occupancy of that kind.

"There is something stated also of a custom, that others, who have not pews appurtenant, pay a rent for seats, which is applied in easement of the parish rate; a practice which has been constantly reprehended by the ecclesiastical courts, and discouraged as often as it has been set up. Then the return is, I think, sufficient, and the party has shown that there are pews occupied by persons not living in the parish, and that a particular individual has obtained a large portion of the church, and let his own pew to a non-resident person. There is one pew appurtenant to the house of Mr. Retford, who does not live in the parish, and who covenants with his tenant that he shall not occupy it, in order that he may let it out to others. This is clearly Sub-letting illegal. If a pew is rightly appurtenant, the occupancy of pews illegal. it must pass with the house; and the individuals cannot, by contract between themselves, defeat the general right of the parish. It appears that the house has been built only eighty years, which is not sufficient to establish a

prescriptive right; because it might be presumed that evidence of the grant of a faculty was not extinct in that time; but even if there was a prescriptive right, it could not be exercised by transferring it to persons not inhabitants of the house or of the parish. Such possession cannot be maintained. There is also another instance in which the parish has given way to the partial convenience of one person, who holds a house to which a pew may be appurtenant. When, however, he was indulged with a gallery, the parish ought to have required him to exchange his own pew for that accommodation. He ought to be required to go back to his own proper pew, or give it up to the parish, as it is now used in the same improper manner by inhabitants of another parish.

per

"The court, therefore, is bound to overrule the protest, but I shall not do more, or give any costs against the churchwardens; for they have been acting under the general sense of the parish, and it is difficult for such sons to bear up against it. It is possible that the parties whose rights are asserted may have something more to allege in defence of them, and they must not be precluded. But I shall overrule the protest, giving such parties an opportunity to intervene.""

We have given a somewhat long report of the above case, because it appears to give an excellent practical view of the law, and also of what is right and most desirable to be practically done in such a case, and because, in the words of Sir W. Scott, it appears to be a convenient mode of proceeding, in a case where a parishioner is unable to obtain from the churchwardens a seat in his parish church, for it appears that the return could not be good and sufficient, unless it showed the state of the church to be such as would render it impossible to give any sitting to the plaintiff.

Or where they The same mode of proceeding might be adopted by a have been reparty whom the churchwardens had removed from his seat, moved by the churchwardens, and seated there another party; but in such a case, although the court should decide that the churchwardens had acted properly in displacing the plaintiff, yet they will not go beyond this, so as to confirm the possession of the person whom the churchwardens have placed in the pew, as that might be injurious, by taking the pew more out of the control of the churchwardens."

Vestry have no authority.

The vestry have no authority on the subject of ordering or arranging of pews, for they are not the representatives of the ordinary, and have no delegated authority from him;

Walter v. Gunner and Drury, 1 Hagg. Cons, 317. " 1 Hagg. 40.