A Church of England court has ruled that Benjamin West’s altarpiece, Devout Men Taking Away the Body of St Stephen, 1776, which was made for one of the most important churches in the City of London can be sold for display in the US. The $2.85m painting is being bought by an anonymous foundation, which is due to lend it to the Museum of Fine Arts, Boston (The Art Newspaper, April 2013, pp6-7 and June 2013, p3). West was born in America, but worked in England.

In his judgment, delivered on 10 July, Judge Nigel Seed, chancellor of the consistory court of the Diocese of London, ruled that St Stephen Walbrook should be allowed to sell the masterpiece. The painting had been removed from the church in around 1987, in what he described as “perceived illegal actions”, and has since been kept in storage.

Judge Seed was critical of “unlawful actions” taken by two priests at St Stephen Walbrook: one who had originally hung the picture in 1776 without “faculty” approval from the Church of England and the second who had removed it in around 1987, again without the necessary permission. He said: “This case, if nothing else, is an object lesson of the consequences of incumbents behaving as though the church building is a sort of personal doll’s house for them to play with, without reference to the parishioners.”

St Stephen Walbrook was rebuilt in 1679 by Christopher Wren after it was destroyed in the Great Fire of London. In 1776 the West painting, which had been commissioned and donated by the priest Thomas Wilson, was installed behind the altar. But Judge Seed said that Devout Men Taking Away the Body of St Stephen was hung without the necessary faculty permission. He said that the painting “severely compromised the integrity of the Wren building in scale, visual appearance and by the damage to the original fabric”. In around 1848 the painting was moved from the east to the north wall.

In around 1987, the picture was removed while major work was being done to repair the building and a new marble altar by Henry Moore was being installed. The then priest (who is not named in the judgment, but was the late Chad Varah, the founder of the Samaritans) intended to sell the altarpiece to raise money for church funds. However, the painting was removed without a request for faculty permission, rendering the move illegal under canon law. The consistory court then went on to consider whether St Stephen Walbrook now has legitimate financial grounds for selling the painting.

Judge Seed concluded: “I am satisfied that the petitioners have made out the necessary financial need to dispose of this painting, that any connection it may be said to have had to the parish was illegally established and to the aesthetic detriment of the church and that it should be sold to be displayed in the Museum of Fine Arts in Boston.”

The faculty application to allow the sale of the West was opposed by the Church Buildings Council, an Anglican statutory body. The council argued that the painting had been commissioned as an altarpiece from a leading artist, it depicts the church’s saint, and it should be returned from store and put back on display.

The Church Buildings Council is now considering an appeal. In a statement, the council says it is “deeply disappointed” by the judgment. It is concerned about “the precedent that the sale would create in 2013 for churches up and down the land, less financially secure than St Stephen Walbrook”, which may be “tempted to sell off their treasures for immediate gain”.

A UK export licence application will now be submitted for Devout Men Taking Away the Body of St Stephen. Following conservation, it will be installed in the Museum of Fine Arts, Boston at the entrance to the Art of the Americas Wing. A museum spokeswoman says that the West will create “a spectacular link between paintings of the new world and the old”.