by Philip Jones
The Corporation Aggregate
In Foundations of the Conciliar Theory (Cambridge University Press 1955), Brian Tierney describes how the constitutional structure of the mediaeval Church centred on the corporation.
The early Church regarded itself as the Body of Christ (p.138). The bishop was the personification or representative of the Church (cf. pp.125-6). Drawing on Roman law, mediaeval canonists developed these primitive theological concepts into a highly complex doctrine of corporate governance.
The mediaeval Church was ‘a federation of semi-autonomous units, of innumerable greater or lesser corporate bodies. Bishops, abbeys and priories, colleges, chantries and guilds, religious orders, congregations and confraternities’ (p.97). A mediaeval bishop, unlike a modern Church of England bishop, was usually ex officio the head of his cathedral chapter.
Discussion of corporate governance focused on the respective powers of the head of the corporation and the members of the corporation as a whole (for example, a bishop and chapter). Could the head unilaterally ‘bind’ the whole body? Was he obliged to obtain the members’ consent to a particular decision, or was it sufficient merely to consult them, to take their counsel (p.109)?
As the key to the control and enjoyment of property, corporate rights were jealously guarded and disputed, creating ‘a rising flood of litigation in the high middle ages’ (p.97). Every corporation had its own peculiar customs and foundational charters, which required judicial investigation if there was a dispute.
This mediaeval style of corporate governance, based on local custom and special privilege, is still discernible in the constitutions of English cathedrals and Oxbridge colleges.
The general trend of the mediaeval litigation apparently favoured the members of the corporation against the head. It was a force for collegiality, and against autocracy. Mediaeval canon law effected ‘a gradual extension and systematization of the rights of the members of the corporation in relation to its head’ (p.130). From this mediaeval development we can trace the distinctive autonomy that English cathedrals retain to this day.
The Corporation Sole
However, with the exception of cathedrals, the governance of the modern Church of England bears little resemblance to the mediaeval corporatism described by Tierney. The post-Reformation Church was characterised by a rather different corporation, the corporation sole.
Incumbents of benefices, bishops and various ecclesiastical dignitaries are said to be corporations sole. A corporation sole effectively divides a single human being into two legal persons. The Reverend John Smith may be appointed Vicar of Barchester. As such, he is both a physical person (John Smith) and a corporation sole (Vicar of Barchester).
The origin of the corporation sole was discussed by F.W Maitland in an article published in 1900 (vol 16 Law Quarterly Review, p.335). Maitland noted that a corporation sole is anomalous for two reasons:
(1) it is not a fully independent legal person. A corporation aggregate of the mediaeval type, like a modern limited company, has an existence independent of its members. The corporation sole depends for its existence on a particular physical person (for example, a bishop or incumbent). If the bishop or incumbent dies or resigns the corporation sole cannot continue. It is automatically dissolved, and is ‘reconstituted’ only when a new bishop or incumbent is appointed.
(2) a corporation sole comprises only one physical person, not a group or college of persons. Yet a corporation generally implies a collegiate body of persons.
It might be logical to reconstitute the corporation sole as a purely fictitious person, like a corporation aggregate or modern limited company. This never happened, according to Maitland, bcause it ‘would have necessitated a breach with traditional ideas of the parson’s estate’. The parson was perceived as a landowner, not merely as a steward or administrator of Church property, even though the word ‘rector’ means steward.
The ecclesiastical corporations described by Tierney originally held their property in common. However, Maitland relates that these corporate tenures began to disintegrate in the later middle ages, as bishops, deans and other chapter members acquired property entitlements that were independent of each other. Hence the need for a corporation sole.
According to Maitland, the notion of the incumbent as a corporation sole was largely Sir Edward Coke’s idea. (Coke lived from 1552 to 1634, and so post-dated the break with Rome.) Coke drew on some slim 16th century authorities in support of his theory. There are no pre-16th century authorities. Thus the corporation sole is unknown to Roman Catholic law.
Maitland attributes the general acceptance of Coke’s corporate theory to its flexibility. It prevented the incumbent from squandering or alienating benefice property, giving it to his family, to the prejudice of his successor and the Church. However, it also gave the incumbent sufficient ownership to protect the property against trespassers and despoilers.
Modern legislation affirms that incumbents remain corporations sole (Mission and Pastoral Measure 2011, ss.34(2) and 37(5)). The Ecclesiastical Offices (Terms of Service) Measure 2009 replaced the old ‘parson’s freehold’ with ‘common tenure’, but still affirmed that former freeholders remain corporations sole (s.9).
However, corporations sole are rather superfluous in the modern Church of England. Much of their traditional property has been taken away from them. Benefice glebe now vests in the local diocesan board of finance, no longer in the incumbent (Endowments and Glebe Measure 1976, s.15). As originally drafted, the Terms of Service Measure provided for the transfer of parsonages to the legal ownership of the parsonages board, but the General Synod rejected this provision.
Nevertheless. although the incumbent remains freeholder of the parsonage, the freehold is fairly nominal. Tenure of the parsonage is closely regulated by statute law, and resembles that of a modern tenant. The incumbent’s rights over the parish church and churchyard are also closely regulated by statute. Church and churchyard are, of course, subject to the ever-vigilant jurisdiction of the ecclesiastical courts.
Bishops do not seem to have any corporate property nowadays. Most episcopal property vests in the Church Commissioners. The Episcopal Endowments and Stipends Measure 1943 empowered the Commissioners (who were then the Ecclesiastical Commissioners) to prepare schemes vesting the official residence and endowments of every see in themselves. They could then lease the residence back to the bishop for his occupation, and pay him an ‘appropriate’ stipend.
The ironic consequence of the 1943 Measure is that the bishop’s proprietary status became inferior to that of many of his clergy. Rectors remain the freeholders of their churches, churchyards and residences, whereas the bishop is the mere tenant of the Commissioners. The cathedral, which is the bishop’s church, vests in the cathedral corporation, a statutory body comprising the chapter, the cathedral council and the college of canons (Cathedrals Measure 1999, ss. 13, 9(1)(a)).
Modern Church authorities with responsibility for Church property are generally incorporated by statute. Thus parochial church councils and diocesan parsonages boards and patronage boards are statutory corporations (Parochial Church Councils (Powers) Measure 1956, s.3: Repair of Benefice Buildings Measure 1972, s.1(5); Patronage (Benefices) Measure 1986, s.26(1)).
The diocesan board of finance must be incorporated as a limited company under the Companies Acts (Diocesan Boards of Finance Measure 1925, s.1(2)). The Archbishops’ Council is a body corporate (National Institutions Measure 1998, sch.1.2.8).
However, the synods of the Church of England, the General Synod and the diocesan and deanery synods, are not corporations. Nor is the annual parish meeting.
Persons and Things
In modern Roman Catholic law, as found in the Code of Canon Law 1983, corporations (described as personae iuridicae, juridical persons) may be
(1) of persons or
(2) of things (rerum).
A corporation of persons must have at least three members (canon 115.2), so there can be no corporations sole. Corporations of things (also known as autonomous foundations) resemble trusts. They must be directed by at least one trustee or by a college of trustees (115.3). The trustees ‘act … as the directing personality of the collection of inanimate goods’ (Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.82).
Unlike an English trust, a foundation may incorporate a purely spiritual thing, not merely real and personal property.
Although the corporation sole seems to be unknown to modern Roman Catholic law, at least one Roman Catholic officeholder uncommonly resembles a corporation sole – the Pope himself.
Tierney relates that the papacy did not fit easily into the corporate, collegial structure of the mediaeval Church. The absolute personal sovereignty claimed for the Pope jarred with a constitutional structure in which authority was exercised by a group rather than an individual, and in which the power of the head was limited.
There were two possible candidates for a papal ‘corporation’
(1) the college of cardinals and
(2) general (or ecumenical) councils of the Church.
The cardinals were the nearest equivalent of a papal chapter. However, the cardinals’ claim to jurisdiction was weak, since the sacred college was essentially a high mediaeval development, unsupported by any ancient tradition in the Church (op.cit, p.68).
Ecumenical councils had a much stronger historical claim to universal jurisdiction, and some canonists were prepared to admit of cases in which the Pope was bound by conciliar decisions (p.49).
Modern Roman Catholic law provides that the Holy See itself (the sedes) is the corporation, and not the incumbent Pope (canon 113.1). Moreover, the incorporation of the Holy See is by divine law, not mere human law. The term Apostolic / Holy See is also deemed to include the Roman curia (canon 361).
It has been suggested that the identification of the curia with the Holy See has no theological significance, but is simply for administrative convenience, ‘a simplified way of identifying the agencies to which recourse must be made when a matter is reserved to the Apostolic See’ (Coriden, Green and Heintschel, p.300). It should be viewed ‘from a canonical rather than a theological perspective’. Thus no divine law is claimed for the curia.
The incorporation of the Holy See rather than the Pope personally is consistent with the general rule of Roman Catholic law, since the sedes is a divinely-constituted, and therefore ‘spiritual’, thing. Things are capable of incorporation as well as people. It affirms the divine origin of the papacy even when the Holy See is vacant, and even when it is occupied (as it undoubtedly has been on occasions) by an incumbent who is manifestly unworthy. It affirms that the papacy is a trust, not the absolute possession of the incumbent.
The corporate status of bishops and incumbents (parish priests) is another major difference between English law and Roman Catholic law. Coke and Blackstone were clear that dioceses and parishes have no legal personality of their own. In English law a diocese is ‘a legal division of a province and the circuit of a bishop’s jurisdiction’ (Halsbury’s Laws, 5th edition 2011, vol 34, para 164, citing Coke). An ecclesiastical parish is merely ‘a district’ (para 262, citing Blackstone).
In Roman Catholic law, as in English law, dioceses and parishes are usually (though not always) constituted on a territorial basis. However, in contrast to English law, both also have a corporate identity.
Thus a diocese is ‘a portion (portio) of the People of God’ (canon 369), not just a territory or jurisdiction. Likewise a parish is defined in corporate terms as ‘a certain community of Christ’s faithful … within a particular Church’ and is a corporation at law (canon 515).
However, the parish priest ‘acts in the person of the parish’ (parochus personam gerit paroeciae) in all legal matters (canon 532). It is possible to see a resemblance between this status and that of the English parson, who was so called because he was persona ecclesiae in the parish. He incorporated the Church in his own person.
The Limits of Ecclesiastical Incorporation
Modern Roman Catholic law affirms that the Catholic Church as a whole, like the Holy See, is a corporation by divine law (canon 113.1).
Coke explained the corporate nature of the Church of England at the Reformation:
‘By the ancient laws of this realm … England is an absolute empire and monarchy consisting of one head, which is the King, and of a body politic … which the law divideth into … the clergy and the laity, both of them next and immediately under God, subject and obedient to the head …’ (Cawdrey’s case (1591) 77 English Reports 1, at p.10).
Centuries later, the Church of England’s identity was discussed in the case of Marshall v Graham (1907) 2 King’s Bench 112. This may have been the last judicial attempt to define the Church of England. The case concerned the prosecution of two fathers for withdrawing their children from school on Ascension Day.
In their defence, the fathers pleaded (successfully) a statutory provision that permitted a child to be withdrawn from school ‘on any day exclusively set apart for religious observance by the religious body to which its parent belongs’ (p.113). Thus the statute did not refer to the Church of England specifically, but the fathers claimed to belong to the Church of England.
Mr Justice Phillimore stated that ‘the accepted legal doctrine is that the Church of England is a continuous body from its earliest establishment in Saxon times’ (p.126).
Why is this the accepted legal doctrine? Phillimore J cited Middleton v Crofts (1736) 26 English Reports 788, in which ‘it was said the canons of 1603 might be enforced so far as they were declaratory of the established canon law before the Act of Submission [of 1533, i.e before the Reformation]’. He also cited his father’s judgment in Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, which referred to ‘the identity in law of the Church of England before and after the Reformation’.
A modern Church of England liturgy confidently asserts that ‘We are the Body of Christ. By the one Spirit we were all baptised into the one Body’. This echoes the religious belief of the early Church, as described by Tierney.
However, this simple faith in the modern Church’s continuing corporate identity is not shared by Halsbury’s Laws. There is something of a divergence between liturgy and law on this point.
The modern statutory corporations of the Church of England are plainly necessary for the Church to hold and deal with property. Corporations sole, by contrast, are idiosyncratic and anachronistic. However, there seems to be little connection between the Church of England’s corporations, whether ancient or modern, and its religion.
Moreover, neither species of corporation has much to do with the Church’s lay worshippers, the vast majority of whom do not belong to any ecclesiastical corporation, or indeed with most of its clergy. Team vicars, assistant curates and priests-in-charge are not corporations sole, only the senior clergy.
Halsbury’s Laws offers a definition of a ‘church’ as ‘the quasi-corporate institution which carries on the religious work of the denomination whose name it bears’ (para 2, emphasis supplied). Later it says that
‘The Church of England … may be considered as an aggregate of individuals. This aggregate evades easy definition or description … the Church of England as such is not a corporation’ (para 51, emphasis again supplied).
Phillimore J was no doubt correct to conclude that the ‘body’ of the modern Church of England is the same in English law as that of the mediaeval Church, but it still bears little resemblance to the one body politic ‘under God’ described by Coke. The religious body has not disappeared in modern times but, as Halsbury implies, it has become somewhat decomposed. That is the effect of secularisation.
Coke’s concept of a body politic united under the headship of the Monarch, and his definition of a diocese as a territory and circuit of jurisdiction, also allow little scope to the now-fashionable notion of the bishop as the personification or representative of the Church.
In Free Church of Scotland v Lord Overtoun et al (1904) Appeal Cases 515, the House of Lords described a ‘church’ as a ‘religious community’, rather than as a religious body (pp.612-13). Generally English (and British) law seems to treat Church communities as associations rather than corporations, a looser configuration of persons.