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What is a Peculiar?

Published online by Cambridge University Press:  31 July 2008

Paul Barber
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A peculiar or exempt jurisdiction is, broadly speaking, one which does not fit into the general scheme of jurisdiction within the Church. It is “exempt” from the “normal” structures, its jurisdiction is “peculiar” to itself. It is important at this stage to note that peculiars are jurisdictions, not places, still less buildings. A jurisdiction can be personal, territorial, or a mixture of the two. However, since the reformation, most jurisdictions in the Church of England have been largely territorial, hence the convention of referring to them as places.

Type
Research Article
Information
Ecclesiastical Law Journal , Volume 3 , Issue 16 , winter 1995 , pp. 299 - 312
Copyright
Copyright © Ecclesiastical Law Society 1995

References

1. The origins of the word are proprietary, from the Latin peculiam, private property.

2. See also The Ecclesiastical Courts 1947Google Scholar (Report of the Archbishop of Canterbury's Commission n Ecclesiastical Courts) pp.7–8, where peculiars are referred to as “ecclesiastical San Marinos”.

3. England does not include Wales. The border between the two is defined for the purposes of this article by section 9 of the Welsh Church Act 1914.

4. Although today archdeacons are, without exception, also in priest's orders: Ecclesiastical Commissioners Act 1840, s.27.

5. For the subject of visitation generally, see Smith, Peter M., “Points of Law and Practice Concerning Ecclesiastical Visitation”, 2 Ecc. L.J. 189.Google Scholar

6. The most common example of the exercise of this power today is the granting of “special licences” for marriage.

7. 26 Hen VIII cap. 1, rep. by 2 Phil & Mar cap. 8, now 1 Eliz I cap. 1 s.8. See also Ecclesiastical Licences Act 1533 (25 Hen VIII cap. 21) ss. 14 & 17.

8. See generally Knowles, Dom David, The Monastic Order in England, especially chapter XXXIII - “The Origins and Development of Exemption in England.”Google Scholar

9. For example, Waltham, Holy Cross was a secular college and royal free chapel founded before the conquest, which was subsequently refounded by Henry II as an Augustinian Priory in 1177, becoming an Abbey in 1185, and mitred shortly after that. However, its status seems to have owed much to its previous life as a royal free chapel. See Denton, J. H., English Royal Free Chapels 1100–1300, A Constitutional Study (Manchester University Press, 1970) pp.66–69.Google Scholar

10. Sometimes a particular order can be regarded as a single, large, peculiar jurisdiction, especially if exemption were gained from the Pope on that basis, e.g. the Cistercian Order. In other cases (e.g. the Benedictine Order) it was more common for individual houses to petition for, and gain, different levels of canonical exemption. Each independent house (and its dependencies) must therefore be regarded as a separate peculiar jurisdiction. For examples of litigation over exemption, see Selden Society vols. 106 & 107, English Lawsuits from William I to Richard I pp.268–277 & 310–323 (Battle Abbey)Google Scholar; and pp. 24–29 (Abbey of Bury St. Edmunds, which won its case after producing a charter from King Cnut of 1028).

11. The 1832 Parliamentary Report of the Ecclesiastical Commissioners on the Ecclesiastical Courts confuses these two in its classification of peculiars and their courts (Appendix D).

12. Although if he holds the jurisdiction in a capacity other than diocesan, it should really be classified according to its visitor, whether episcopal, archiepiscopal, or royal. The question here is whether the bishop is visitable by his metropolitan in respect of the peculiar.

13. Drawing the line between the exemption a peculiar can possess whilst remaining part of the diocese, and that which puts it outside the diocese is not easy. To be extra-diocesan, the peculiar must be free from all jurisdiction, episcopal customs (payments customarily due to the bishop) and other rights of the bishop, such as canonical obedience. It seems that one of the last rights which a bishop lost was the right to supply the Sacred Chrism and other oils necessary for baptism and confirmation etc. Denton, op. cit., pp. 43–44. For the example of a bull granting full exemption see Omne Datum Optimum given to the Templars in 1173 by Pope Alexander III (Manuscript translation by Robert Milburn in Inner Temple Library).

14. Although, of course, the Archbishop of Canterbury's Legatine Powers are exercisable over royal peculiars, in the same way as they are over the Province of York.

15. Johnson v Ley Holt K.B. 656; Smith v Smith & Others (1831) 3 Hag Eccl 757; Anonymous 6 Mod. 308; Crowley v Crowley (1744) 3 Hag Eccl 758n.

16. Notably those of cathedral chapters, deans and prebends.

17. Most peculiars having pre-reformation origins. After the reformation such powers passed to the Crown. Some peculiars were created, e.g. Corfe Castle, created by Elizabeth I under 31 Hen VIII cap. 13s.23.

18. In the same way as the creation of a diocese. See for example the letters patent creating the see of Gloucester in 1541: Rymer, Foedera, XIV 724.

19. The corollary of this means that such a peculiar disappears (at least in theory) as soon as that characteristic ceases to exist.

20. E.g. Order-in-Council creating the See of Newcastle, 23 May 1882, London Gazette, p. 2393, under the Bishoprics Act 1878.

21. As opposed to royal palaces which are not royal residences: see Combe v De La Bere (1882) 22 Ch.D. 316 at 326 per Chitty J. at first instance.

22. As are “the churches or chapels founded therein or annexed thereto” if the Ecclesiastical Commissioners' Order-in-Council discussed later are to be believed. How far such foundations do rely on the exemption afforded by royal residences, and what precisely “annexed to” means, is unclear.

23. e.g. Lambeth and Addington Palaces, and other London palaces of bishops, such as the Bishop of Ely's Palace in Holborn.

24. This would otherwise raise some interesting questions about the legal nature of a university.

25. Though not exactly the same. In one or two cases, e.g. Durham (Order-in-Council dated 27 August 1842, London Gazette, p. 722) and Manchester (Order-in-Council dated 10 August, 1847, London Gazette, p. 3157) the abolition is over archdeaconries, rather than dioceses.

26. The wording at this point goes further than the Act in that it tries to introduce a personal element into the jurisdiction to be abolished.

27. Order-in-Council dated 17 July 1851 London Gazette, p. 1970.

28. With the exceptions of the cathedral churches of York and Ripon, both of which appear to have been abolished as peculiar jurisdictions by Order-in-Council dated 1 February 1838 (London Gazette, p. 311).

29. Exempted from the Order-in-Council dated 8 August 1845 (London Gazette, p. 2541) covering the dioceses of Canterbury, London, Winchester, Rochester, Chichester and Lincoln.

30. It is to be noted that exemption from an Order-in-Council did not confirm peculiar status, but simply left the status quo, i.e. the question still remains (especially with regard to Oxbridge Colleges) as to the status of each such institution at the time of the relevant Order.

31. See supra note 25 and also the following Orders-in-Council: 22 December 1836 (London Gazette, p. 161) – Peculiar of Hexhamshire; 8 December 1840 and 4 June 1841 (London Gazette, pp. 29 & 1466)–Peculiar of Southwell and the County of Nottingham; 19 December 1846 (London Gazette, p. 5961) – Diocese of Hereford and the Peculiar Deanery of Bridgenorth.

32. The Chapel Royal is an institution, not a place. In its zenith it has been described as “a perambulatory bishopric in constant and personal attendance on the King and his entourage”: W. Ullmann (ed.) Liber Regie Capelle, (Henry Bradshaw Society, xcii, 1959) p.vii. Although some Orders appeared to try to extend themselves to personal jurisdictions, the Act gave no warrant for this. See supra note 26.

33. I have been unable to find any Order-in-Council covering the diocese of Carlisle, for example.

34. For a fuller discussion of the effect of the Orders-in-Council on this type of peculiar (with special reference to the Temple) see Silsoe, Lord, Q.C. The Peculiarities of the Temple, (Estates Gazette Press, 1972) chapter 8.Google Scholar

35. Although the law is not lightly construed to take away established jurisdiction by anything but express words: per Dr. Tristram in Case of St Michael Bassishaw [1893] p. 233 at p. 240.

36. 8 December 1840 and 4 June 1841 (London Gazette, pp. 29 & 1466) – Peculiar of Southwell: 3 September 1844 (London Gazette, p. 3321) – Town of Bury St Edmunds; 23 December 1845 (London Gazette, p. 7355) – Certain parishes adjoining but not forming part of the Deanery of Rochester.

37. The Peculiar Deaneries of Hexhamshire, Southwell, and Bridgenorth, supra note 31.

38. The Deanery of St Buryan, a royal peculiar between the diocese of Exeter and the coast at the tip of Cornwall, was abolished by Act of Parliament in 1850 (13 & 14 Vict cap. 76). The Order covering the Diocese of Exeter was made on 11 February 1848 (London Gazette, p. 675).

39. For instance, St Dunstans-in-the-East appears to have escaped abolition and lasted until 1960, when it was amalgamated to form the Parish of All Hallows Berkingchirche-by-the-Tower with St Dunstans-in-the-East. (Scheme, London Gazette 8 March 1960, p. 1736.) Who has jurisdiction over the new Parish? Similarly, what happens if a peculiar moves? The Hospital of St Katharine moved to Regent's Park in 1825, but its precinct next to the Tower may have remained there.

40. Except possibly the Cathedral Church of Manchester, which, when created, was expressly made subject to the same jurisdiction as the Cathedral Church of Ripon, (which had been abolished as a peculiar in 1836); Order-in-Council dated 10 August 1847, London Gazette p. 3157.

41. For example, the cathedral churches of York and Ripon, and royal residences.

42. Section 21 of the Marriage Act 1949 provides that the bishop of the diocese may authorise the publication of banns and the solemnization of marriage by banns or licence in a church or chapel in an extra-parochial place. Contrast the phrase used in this section with that used in s.5(c) “… a licence of marriage … granted by an ecclesiastical authority having power to grant such a licence” whereby the common law right of Ordinaries, not being bishops, to grant “common licences” is continued.

43. Papers in Oxford County Record Office.

44. For such a marriage to be void, one of the parties must wilfully go ahead with the marriage whilst knowing that the chapel is a place other than a church or other building in which banns may be published: Marriage Act 1949, s.25(a).

45. Planning (Listed Buildings and Conservation Areas) Act 1990, s.60(l). (See also note 52).

46. Normally, only a bishop can consecrate validly. An Ordinary who is not in Holy Orders cannot consecrate land or buildings. From the earliest times such Ordinaries (if sufficiently exempt from the local bishop) have invited bishops of their choice to consecrate and ordain, e.g. the Patriarch of Jerusalem consecrated Temple Church to St Mary in 1185.

47. In re St John's, Chelsea [1962] 1 WLR 706Google Scholar, and see also Moore's, Introduction to English Canon Law (3rd edn.) at p. 86Google Scholar. Whether or not consecration by anyone recognised under English law to be in episcopal orders has the same effect has never been the subject of a court decision, but if consecration derives from Order rather than Jurisdiction, as would seem to be the case, then consecration by any Bishop will have this legal effect.”

48. In practice the faculty jurisdiction is often not exercised in respect of local authority cemeteries: G. H., & Newsom, G. L., Faculty Jurisdiction of the Church of England, (2nd edn., 1993) p. 150Google Scholar, or private chapels: In re Tonbridge Chapel [1993] 1 WLR 1138 at 1141Google Scholar. However, it does exist, and will be exercised when necessary: In re West Norwood Cemetery [1994]Google Scholar 3 WLR 820 (jurisdiction exer cised over a cemetery owned by a local authority). Other examples of this jurisdiction being exercised include: In re Liet.-Col. Dixon [1892] p. 386Google Scholar (consecrated part of Kensal Green Cemetery, owned by a private company); Norfolk County Council v Knights and Others and Caister-on-Sea Joint Burial Committee [1958]Google Scholar (cemetery managed by a burial committee); In re Coleford Cemetery [1841]Google Scholar 1 WLR 1369 (cemetery owned by the (civil) parish council). See also Sutton v Bowden [1913] Ch 518 (private chapel owned by an unincorporated body); and the Tonbridge School Chapel case above.

49. The faculty jurisdiction also extends to unconsecrated curtilage of consecrated churches, and to certain buildings licensed for public worship. Faculty Jurisdiction Measure 1964 ss. 6 & 7 and Care of Churches Measure 1991, s.11(2).

50. Care of Cathedrals Measure 1990, section 20(1).

51. E.g. King's College Chapel, Cambridge, St George's Chapel, Windsor, and Westminster Abbey.

52. Planning (Listed Buildings and Conservation Areas) Act 1990 s.60(5) and The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994, S.I. 1994 No. 1771. Consecrated buildings within peculiar jurisdictions retain the exemption by virtue of being within the faculty jurisdiction of their respective Ordinaries, art. 4(a) (this was probably not intended by the draftsman). Unconsecrated ecclesiastical buildings in peculiar jurisdictions retain the exemption by virtue of Art. 6(1) & (2)(a), and unconsecrated ecclesiastical buildings in many pretenders to peculiar status retain the exemption by virtue of Art. 6(2)(b) & (c). Government policy on the ecclesiastical exemption is given in P.P.G. 15, dated 14 September 1994.

53. London Government Act 1963, ss.2 & 89(1).

54. Ecclesiastical Commissioners Act 1836, esp. preamble; Order-in-Council, supra note 29.

55. The London Borough of Lambeth was created under London Government Act 1963 by reference to the then existing metropolitan boroughs of Lambeth and Wandsworth: s.l(l) & sch. 1. These metropolitan boroughs had been created by the London Government Act 1899 by dividing up the administrative county of London: s.1 & sch.l. The administrative county of London was in turn created from the Metropolis by the Local Government Act 1888, s.40. The Metropolis was defined (s.100) as the parishes and places mentioned in schedules A, B & C to the Metropolis Management Act 1855 (18 & 19 Vic Cap. 120), a list of ecclesiastical units which does not include Lambeth Palace.

56. Synodical Government Measure 1969 s.l(2).

57. Three examples of Papal Bulls giving faculties to priests to ordain to the major orders of diaconate and priesthood are discussed in Journet, Charles, The Church of the World Incarnate (Sheed & Ward, 1954) vol. I, p.113–115Google Scholar. See also Gerland, M. J., O.P., “Le ministre extraordinaire du sacrament de l'ordre” in Revue Thomiste 1931, pp. 874–885Google Scholar. One of the Bulls, issued by Boniface IX on 1 February 1400 was to the Augustinian Abbot of St Osyth in Essex, granting to him and his successors the faculty to raise his subjects to the diaconate and the priesthood.