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Ecclesiastical law

Tag: Endowments and Glebe Measure 1976

The Diocesan Board of Finance: Constitution, Custody and Management

The property of an English diocese may be divided into 4 categories

(1) parochial (i.e parish property)

(2) benefice

(3) episcopal and

(4) cathedral.

The Diocesan Board of Finance (henceforward ‘DBF’) is only concerned with (1) and (2).  (3) is now the responsibility of the Church Commissioners (cf Episcopal Endowments and Stipends Measure 1943).  (4) is the responsibility of the Cathedral Corporation, though subject to some oversight by the Church Commissioners.

Constitution

The Diocesan Boards of Finance Measure 1925 requires every diocese to have a DBF.  However, the 1925 Measure did not invent DBFs.  They have probably existed since Victorian times.  Introducing the Measure to the House of Commons, Lord Hugh Cecil observed that ‘There are [already], all over England, diocesan boards of finance, and it is desired by this Measure to bring them all under one form’ i.e constituted as companies (Hansard vol 189, 16th December 1925).

The DBF must be incorporated as a company under the Companies Acts. This is in contrast to the parochial church council, which is a statutory body corporate, but not a company. Other ecclesiastical committees, if required to be incorporated, are statutory corporations, not companies.

Why are DBFs different?  The evident policy of the 1925 Measure was to permit local flexibility and discretion.  Thus the Measure provides that the DBF’s constitution may ‘confer … such further powers on the [DBF] as the diocesan synod … may think necessary or expedient in view of the requirements of the diocese’ (s.1(2)(c)). A Church of England report observed that ‘the diocesan synod has considerable discretion as to the constitution of its DBF … DBF constitutions … show a wide variety of provisions governing membership of a DBF and … [its] directors’ (DBFs: Conflicts of Interest, para 1).

The DBF’s title may cause confusion.  A DBF is called a board, but it is constituted as a company.  There is, of course, an important legal distinction between a company and its board of directors.

The bishop must be a member of the DBF (though not necessarily its chairman). A majority of the DBF’s members must be

(1) elected, either by the diocesan synod or by the deanery synods of the diocese

(2) members of the diocesan synod (membership of a deanery synod will not suffice) and

(3) laymen (or laywomen).

The DBF, then, is constituted by the diocesan synod, and is accountable to it.  The 1925 Measure provides that the DBF ‘shall in the exercise of its powers and duties comply with such directions as may be given to [it] by the diocesan synod’ (s.3(1)).

S.19 of the Dioceses, Pastoral and Mission Measure 2007 suggests that it is possible for 2 or more DBFs to discharge their functions jointly, or delegate their functions to each other.  It is also possible for 2 or more dioceses to create a single, interdiocesan DBF.  Such interdiocesan arrangements concerning ‘any body corporate or unincorporate or committee … other than a diocesan synod or bishop’s council’ (s.19(1)) require the authority of a statutory scheme made by the bishops concerned, with the approval of their respective diocesan synods, and of the Charities Commission.

The 1925 Measure does not mention the Church Commissioners (or Ecclesiastical Commissioners as they were then known).  However, as the DBF’s responsibilities have broadened since 1925, so it has become subject to the oversight of the Church Commissioners, as well as the local synod.

Thus the Church Property Measure 2018 obliges DBFs to provide information required by the Church Commissioners on any matter concerning its functions under that Measure.  And the DBF must ‘have regard’ to any advice tendered by the Commissioners concerning those functions (s.40).

Function

The DBF has broad powers ‘to hold real and personal property for purposes connected with the Church of England’, and ‘to transact business in connection with the Church of England and the diocese …’ (1925 Measure, s.1(2)).  In practice, the DBF’s principal responsibility today is the maintenance of ministry in the diocese, and hence to acquire sufficient property and income to achieve this.  Also to meet its own office expenses, and certain other diocesan expenses. However, it is argued that parochial and benefice property are the nucleus of the DBF’s function.

Parish property ((1) above) may be subdivided into

(1) property regulated by the Parochial Church Councils (Powers) Measure 1956.  This includes ‘property … applicable to purposes connected with [the] powers, duties or liabilities’ of the parochial church council (‘the PCC’) (s.4(3)).  Also property acquired property acquired by the PCC ‘for any ecclesiastical purpose affecting the parish’, or for ‘educational schemes’ (s.5(1)).  Such property is likely to consist principally of a church hall and parish funds.

(2) property regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.  This is property ‘held on [specific] charitable trusts, established for ecclesiastical purposes’, of which trusts the incumbent and churchwardens are ex officio trustees (s.2), e.g trusts for the provision of religious education.

Benefice property ((2) above) comprises

(1) the church and churchyard

(2) the parsonage (i.e the official residence of the incumbent)

(3) other official residences and

(4) glebe, which provided the incumbent’s income.

(Tithe and tithe rentcharge have now been abolished.)

Some dealings will affect all species of parochial and benefice property.  Parishes and benefices, and hence their property, are regularly subject to reorganisation under statutory powers now contained in the Mission and Pastoral Measure 2011.  The DBF is required to hold a pastoral account, for the income and expenses of a reorganisation (2011 Measure, ss.93 and 94).  A reorganisation proposal is required to consider ‘the financial implications for the diocese’ (s.3(2)), but (perhaps surprisingly) the DBF is not required to be consulted about a reorganisation, except where this involves the closure of a church (s.21(7)).

Parochial and benefice property may also be subject to a sharing agreement, made with other Christian denominations under the Sharing of Church Buildings Act 1969.  The 1969 Act provides that the DBF must be a party to such an agreement (s.1(3)), so will be able to influence its terms and performance.

The DBF has a general power to buy or otherwise acquire, and to grant, land and buildings for use as a church or other place of worship, or as a churchyard, church hall and parsonage (Church Property Measure 2018, s.28).  The 2018 Measure also provides for the grant of land to the DBF for such uses (ss.29-31).

(1)  The Parish

The PCC may not acquire, sell or otherwise deal with land (other than short leases) or trust property without the DBF’s consent.  To ensure that this rule is observed, such land or trust property must be transferred to, or become vested in, the DBF as legal owner (1956 Measure, s.6).  Nevertheless, the PCC remains responsible for all liabilities and outgoings relating to the property (s.6(4)).  A similar rule applies to trust property regulated by the 1964 Measure.

These rules reflect the distinction found in trust law between (1) custody and (2) management.  The DBF is custodian of parish property, while the parochial authorities are its managers.

Minor dealings with parish property below a certain specified value will not require the DBF’s consent (1956 Measure, s.6(4A), 1964 Measure, s.5A).

Parish accounts must be laid before the DBF annually (1956 Measure, s.8(4)).

The DBF has custody of parochial land and trust property, but it has no charge over parish funds (e.g bank deposits and ‘personal’ investments that are not subject to a specific trust).  However, it has long been the practice (again, perhaps since Victorian times) for parishes to make an annual contribution to diocesan expenses.  This is known as the parish share or quota.  It is possible to see, proudly displayed on a church noticeboard, a ‘certificate’, signed by the grateful bishop, and ‘presented in recognition and appreciation of your [parish] share’.

The Synodical Government Measure 1969 makes an oblique reference to the practice: ‘the diocesan synod [may] delegate to the deanery synods … the determination of parochial shares’ (s.5(4)).  Thus, unlike most charitable giving, the parish does not simply decide what it wants to donate. The local synod assesses what it should pay.

Roman Catholic law empowers the bishop to impose a ‘moderate tax’ (tributum) on parishes ‘proportionate to their income … for diocesan needs’ (Code of Canon Law 1983, canon 1263).  This taxing power apparently originated in the cathedraticum, a payment made ‘as a sign of … subjection to … episcopal authority’ (The Code of Canon Law.  A Text and Commentary, eds Coriden, Green and Heintschel, New York 1985, p.866).  Perhaps the Anglican parish quota / share was inspired by this Catholic custom.  However, though the quota / share assessment may resemble a charge or tax, payment of it is purely voluntary.  The wording of the 1969 Measure does not empower the synod to enforce payment of its assessment, and there is no other statutory provision for enforcement.

Parish property, including trust property, can be appropriated (i.e converted) into glebe, but the PCC or trustees, and the Charities Commission, must consent to this (s.19(3)).

Where a joint PCC of 2 or more parishes is either created or dissolved, the DBF resolves any question that may arise concerning the property, rights, liabilities or functions of the PCCs concerned (Church Representation Rules, as amended by the Church Representation and Ministers Measure 2019).

If there is a dispute over an entry on the parish electoral roll, or over the outcome of a synodical election, the DBF may be liable to meet the legal expenses of resolving the dispute (ibid).

(2) Church and Churchyard

The DBF has less direct responsibility for churches (and churchyards) than any other parochial or benefice property.  It is neither custodian nor manager.  The incumbent and churchwardens have custody of the church and its contents, while the care of the church is now the financial responsibility of the PCC.  Dealings with the parish church are subject to the oversight of the archdeacon and the ecclesiastical courts (under the faculty jurisdiction).  Any grants or loans made by the DBF are discretionary.

The statute law follows the common law rule of ownership.  Thus land acquired by the DBF for use as a church or churchyard automatically vests in the incumbent (2018 Measure, s.32).

However, the Ecclesiastical Fees (Amendment) Measure 2011 provided that fees (traditionally known as ‘surplice fees’) that were formerly payable to the incumbent (eg for weddings and funerals) should in future be paid to the DBF.  This was a sensible reform, as the DBF is now responsible for clergy remuneration, and incumbents should not be paid twice for the same work (a fortiori they should not be paid for work done by other clergy who deputise for them).  These fees are the only statutory, compulsory income that the DBF receives.

An agreement between a PCC and a lay rector to compound the latter’s liability to repair the chancel (i.e get rid of the liability in return for a lump sum payment) requires the DBF’s approval (Ecclesiastical Dilapidations Measure 1923, s.52).

Every diocese must establish a fund to meet the cost of inspecting churches (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.45(2)).  The DBF is the obvious body to hold and administer this fund, though this is not explicitly provided for.  The DBF must also meet the expenses of the diocesan advisory committee, which advises on the care of churches (s.37(10)).  If the bishop or archdeacon intervenes in faculty proceedings, the DBF is responsible for their legal expenses, provided it has been consulted in advance (s.60(4-6)).

The DBF has little direct responsibility for a functioning parish church, but considerable responsibility for a church which has been closed, i.e made redundant, under the Mission and Pastoral Measure 2011.

The precise terms of the DBF’s involvement with a closed church will depend on the particular statutory scheme of closure.  However, the DBF is usually responsible for the contents of a closed church, pending their disposal (s.76).  The ownership and management of a closed church may be transferred to the DBF pending sale, or on a permanent basis, perhaps for commercial use and profit (s.63).  If no further use can be found for a closed church, the DBF may be entrusted with the melancholy task of demolishing it (s.58(2)).

(3)  Parsonages

Parsonages, like churches and churchyards, vest in the incumbent, not the DBF.  As with a church, any parsonage acquired by the DBF will automatically vest in the incumbent (2018 Measure, s.32).  Thus the DBF, qua DBF, is neither custodian nor manager of parsonages.

The Repair of Benefice Buildings Measure 1972 requires every diocesan synod to appoint a parsonages board to manage parsonages (s.1).  (Parsonages boards were formerly known as dilapidations boards, but the 1972 Measure abolished this depressing title.)  The diocesan synod has the right to designate the DBF itself as the parsonages board.  If the DBF is designated as parsonages board, it must delegate its managerial functions under the 1972 Measure to a special committee (or committees).

As the parsonage vests in the incumbent, and not the DBF, the DBF has no power to sell a parsonage.  However, the surplus proceeds of any sale belong to the DBF (Church Property Measure 2018, s.13(1)).

Also, if the DBF is opinion that a parsonage house or land ‘is not required [for] the incumbent’s … convenient occupation’, it may request that the property be transferred to itself, and held as glebe (Church Property Measure 2018, s.8).  If the Commissioners and the bishop agree, the bishop may then order the transfer of the parsonage to the DBF, even if the incumbent objects, without the need for any further conveyance (s.8).

As a general rule, parsonage land cannot now be leased.  If not required for the incumbent’s residence, it must be transferred to the DBF as glebe. However, during a vacancy in the benefice, the DBF may agree to the benefice sequestrators leasing the parsonage.  Any profit left over when the benefice is filled must be paid to the DBF (s.37(1)).

There may also be some old leases of parsonage land, granted by incumbents before the Endowments and Glebe Measure 1976 took effect.  The incumbent remains the nominal landlord of such a lease.  However, the DBF effectively manages the lease.  It is entitled to information from the incumbent or sequestrators concerning leased parsonage land (s.6).  The rent must be paid to the DBF (s.7), and is treated as the DBF’s income, not the incumbent’s.  For its part, the DBF, not the incumbent, meets all the costs of the landlord’s obligations and liabilities.

(4)  Other Official Residences

Non-incumbent parochial clergy (assistant curates, team vicars etc) do not own their official residences.  If a curate’s house is supplied by the PCC, or by a parochial trust, it will vest in the DBF as custodian, under the 1956 or 1964 Measures discussed earlier.

An official residence may also be acquired and held by the DBF in its own right.  The Diocesan Boards of Finance Measure 1925, as amended, provides that the DBF may not alter or dispose of a team minister’s residence without informing and consulting that minister (s.3(2)).

The Ecclesiastical Offices (Terms of Service) Measure 2009 provides that the parsonages board, not the DBF, is ‘housing provider’ for all non-incumbent diocesan officeholders who are entitled to housing as part of their ‘common tenure’ (s.4(7)).  As housing provider, the parsonages board now has similar responsibility for managing other official residences as it has for parsonages (cf Terms of Service Regulations 2011, reg 12).

As mentioned, the DBF may also be the parsonages board.  If it is not, the parsonages board has an independent power to hold property (1972 Measure, s.1(5)).  However, the common tenure regime does not require the parsonages board to be the legal owner of the housing that it provides.  ‘Housing provider‘ does not necessarily mean ‘housing owner‘.  It should be possible for a parsonages board to provide and manage a residence that is legally owned by the DBF.

(4)  Glebe

The most significant extension of the DBF’s functions since 1925 occurred when the Endowments and Glebe Measure 1976 transferred all benefice glebe to the DBF (by s.15).  Hitherto the glebe had vested in the individual incumbents and been managed from London by the Church Commissioners.

The effect of the 1976 Measure was to convert benefice glebe into diocesan glebe, making it the investment property of the entire diocese.  The DBF’s function was ‘to hold, manage and deal with the diocesan glebe land for the benefit of the diocesan stipends fund‘, i.e clergy remuneration.

The Church Property Measure 2018 makes a distinction between 2 types of glebe

(1) historic glebe, which vested in the DBF under s.15 of the Endowments and Glebe Measure 1976 and

(2) glebe held under the 2018 Measure or its predecessors, or under a reorganisation scheme (s.48(6)), i.e property acquired by the DBF after the 1976 Measure came into force.

The parish share, discussed above, is income.  The glebe, by contrast, is capital, a portfolio of capital assets.  The DBF’s functions concerning glebe are different from those concerning parish property.  While the DBF has custody of parish property, it is required ‘to hold, manage and deal with the diocesan glebe land for the benefit of the Diocesan Stipends Fund’ (s.16(1)).  The DBF both owns and manages the glebe.

To this end the DBF must have a scheme for the management of glebe land (s.17).  In managing and dealing with glebe, the DBF is itself subject to the oversight of the Church Commissioners.  Any changes to a management scheme require the Commissioners’ consent (s.17).  The Commissioners may even suspend a scheme if it is not being complied with, or not achieving ‘efficient management’ (s.18(1)), effectively putting the DBF into ‘special measures’.  The DBF is also required to report to the Commissioners on ‘such matters as the Commissioners specify’, and transactions concerning glebe (s.16(2)).

Some dealings with glebe (sale, lease, mortgage) may require the consent of the Commissioners.  However, consent is not required if the dealing is an arm’s-length commercial transaction and the DBF is advised by a qualified surveyor (s.21).  The same rules apply to the purchase of land by the DBF (s.28).  The relevant PCC and clergy must be notified of a proposed dealing (s.22).  Disposal proceeds must be allocated to the stipends fund.  The DBF must keep appropriate accounts (s.26(5) and (6)).

The DBF is empowered to require an incumbent or benefice sequestrators to provide information and documents concerning historic glebe ((1) above) in their area, and may even take them to court if they neglect to comply (s.16(4) and (5)).

Any dispute between the DBF and an incumbent or sequestrators concerning the historic glebe ‘or rights … to which the land was subject or of which it had the benefit’ is decided by the Commissioners.

Although the ownership and management of glebe was transferred to the DBF by the 1976 Measure, the Commissioners continued to hold the diocesan stipends fund for many years thereafter.  Not until the Miscellaneous Provisions Measure 2000 were the funds transferred to the DBFs (s.1(1)).  The funds are regulated by the Diocesan Stipends Fund 1953, as amended.

As well as stipends, the DBF is responsible for certain compensation payments to clergy for loss of office.  Compensation for officeholders who are made redundant as a result of pastoral reorganisation is regulated by Schedule 4 of the Mission and Pastoral Measure 2011.  An incumbent who is removed under the Vacation of Benefices Measure 1977 (though this hardly ever happens) is also entitled to compensation.

An officeholder who is dismissed for incapability under the ‘common tenure’ regime can bring a claim of unfair dismissal in the (secular) Employment Tribunal.  The DBF is respondent to such a claim and hence liable for any compensation awarded (Terms of Service Regulations 2011, reg 33).

The DBF also has an increasing responsibility for clergy pensions (and those of lay ministers).  The Pensions Measure 1997 provided that, while the Commissioners continue to be responsible for pension contributions in respect of pre-1997 service, the DBF is required to contribute to the post-1997 pension fund held by the central Pensions Board (Pensions Measure 2018, ss.9 and 10).

As part of its pension responsibilities, the DBF must appoint a widows and dependants committee, and a special officer to represent the interests of widows and dependants (2018 Measure, s.51).

The English Parish

Phillimore’s Ecclesiastical Law records an ancient dictum that ‘A parish is the place in which the people belonging to one church dwell’ (2nd edition, 1895, quoted at p.1638).  On this view an ecclesiastical parish has three essential elements, a territory (the place), a community (the people) and place of worship (the church).  However, a place of worship will require an incumbent minister, who will in turn require to be appointed and maintained.  A community will also require some form of governance.

It is therefore argued that a parish has 9 constitutive elements.  This is an attempt to identify and describe them, but not to provide a comprehensive account of the law by which they are regulated.  (That would require an entire book.)

1.  Territory

Blackstone describes a parish as ‘that circuit of ground in which the souls under the care of one parson or vicar do inhabit’ (Commentaries vol 1, p.107).  The English parochial structure remains strongly territorial in character.  This territoriality is, of course, the basis of the Church of England’s proud claim to be a truly national Church, with ‘no inch of territory … no place … beyond the reach of the spiritual ministrations of a priest or place of worship’ (L Paul The Deployment and Payment of the Clergy (1964), p.23).

The area of a modern statutory parish will now usually be indicated on a map or plan annexed to the scheme by which it is constituted (Mission and Pastoral Measure 2011, s.52(2)).  Every new parish must be named by its constituting scheme (s.31(2)).

Parishes are subject to extra-parochial places, which are defined as universities, colleges, schools, hospitals and other public or charitable institutions (Extra-Parochial Places Ministry Measure 1967, s.2(1)).  As their name implies, such places are outwith the parochial structure, even if physically located within the territory of a parish.  However, a person who resides in an extra-parochial place is deemed to reside in the parish which it abuts, and hence to be a parishioner.  Any uncertainty on this point is determined by the bishop’s council of the diocese (Church Representation Rules 1(3)).  Any uncertainty about whether a particular area or place is, or is within, a parish or extra-parochial place is determined by the Church Commissioners after consultation with the bishop (s.105(2)).

Independent mission initiatives may also operate within parishes.  Mission initiatives first received legal recognition under the Dioceses, Pastoral and Mission Measure 2007.  They are now regulated by the 2011 Measure (ss.80-84).  A mission is constituted by order of the bishop.  The objective of the mission should be ‘fostering or developing a form of Christian community, to promote or further the mission of the Church, or any aspect of it’.

If an ecclesiastical parish is understood as a territory, it follows that ‘parishioners’ may include persons who are not members of the Church of England.  Roman Catholics, Methodists and Muslims are obviously not members of the Church of England but they are still all parishioners, because they all live within the territory of a parish.

2.  Community

While English law defines the parish as a territory, Roman Catholic law defines it as a corporation.  According to the Code of Canon Law 1983, a parish is ‘a definite community of the Christian faithful’ (canon 515.1).  Thus, in contrast with English law, persons who are not members of the Church cannot be parishioners.  A commentary suggests that the word ‘parish’ is derived from a Greek word that originally meant ‘a pilgrim people’ (in contrast to the English idea of a settled community), and that ‘however important territorial factors are in parish organisation, what is really constitutive of the parish is its being a community of persons’ (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.416).

Despite its corporate character a Roman Catholic parish ‘as a general rule is to be territorial’ (canon 518).  However, personal parishes may be established if this is ‘useful’ (canon 518).  Thus Eastern rite Catholics within the jurisdiction of a Latin rite bishop may be constituted as a personal parish.  The Anglican Ordinariates comprise personal parishes of former members of the Anglican Communion.

As the churchgoing population has become more mobile, modern English law has extended the definition of a parishioner to include persons who worship regularly in the parish church but who do not live within the parish.  A non-resident lay communicant is entitled to have his name entered on the electoral roll of the parish if he has worshipped regularly in the parish church during the previous 6 months (Church Representation Rules 1(2) and (4)).  He also has the same right as a resident parishioner to marry in the parish church (Marriage Act 1949, s.72(2)).  The Marriage Measure 2008, as amended in 2012, extended the right to marry in the parish church to persons who can show a personal or familial connection with the parish or the church.

3.  Church

If a building is not already a parish church it cannot be legally constituted as such until

(1) the Commissioners approve it as ‘suitable’, and

(2) it is consecrated (Mission and Pastoral Measure 2011, s.41(2)).

‘Suitable’ is not defined further.  Canon law suggests that only a permanent place of worship should be consecrated.  The original Roman Catholic Code of 1917 forbade consecration ‘if it can be reasonably foreseen that a church will be turned to profane uses’.  Churches made of wood or iron were not supposed to be consecrated on account of their impermanent character (canons 1165, now abolished).

A parish has no right to a parish church.  Thus a new parish may be created even if it has no parish church (2011 Measure, s.31(4)).  A scheme may also provide that an existing parish church shall cease to be constituted as such (s.41(1)).  If there is already a church in the area of a newly-created parish, this may, but need not, be designated as the parish church.

However, a parish with no parish church must still have some place of worship.  If a parish has no church the bishop must licence a building, or part of a building, within the parish for public worship (s.43(1)).  Thus the bishop consecrates a permanent place of worship but licences a temporary one.  This rule seems to echo the canon law.

A licensed place of worship may also be designated the parish centre of worship (PCW).  Thus a building which is not a church requires to be both

(1) licensed for public worship by the bishop and

(2) appropriately designated by him

in order to become a PCW.  The designation of a PCW must be under seal (s.43(6)).

Although the bishop is obliged to licence a place of public worship he is not expressly obliged to designate a PCW.  S.43(3) suggests that a bishop may designate a PCW even if there is already a parish church.

4.  Benefice

While upholding the fixed territorial character of parishes, modern ecclesiastical law permits considerable flexibility of parochial ministry.  A single incumbent may have pastoral responsibility for more than one parish.  Contrariwise, a single parish may be under the pastoral care of more than one incumbent.

The former arrangement may be effected in one of two ways:

(1) the single incumbent may hold two or more benefices in plurality (2011 Measure, s.32)

(2) the benefices themselves may be united or merged into a single united benefice (s.31).  A distinction is therefore drawn between a parish and the area of a benefice.  Several parishes may share the same benefice.

A plurality is obviously a looser arrangement than a united benefice.  The bishop may permit the incumbent of a plurality to resign one or some benefices but not all of them (s.32(4)).  Also, on a vacancy in the benefices, the plurality may be terminated at the instance either of the bishop or one of the parochial church councils (s.32(2)).  A united benefice may not be dissolved in such circumstances, unless its constitution provides for this.

The latter pastoral arrangement may also be effected in one of two ways:

(1) In a group ministry, each incumbent is required to assist the other incumbents in the group ‘so as to make the best possible provision for the cure of souls throughout the area of the group’ (s.35(1)).

(2) A team ministry is a more radical departure from traditional parochial ministry.  It is a sharing of the cure of souls by two or more clergy within the area of one benefice (s.34(1)).  A team ministry comprises a team rector and one or more team vicars.  In a traditional parish a rector and vicar never work side by side.  Teams vicars are quasi-incumbents, though their offices are licensed, not beneficed (s.34(4).  A team vicar, or other member of the ‘team’, may be assigned a special cure of souls of part of the area of a benefice or a particular ‘pastoral function’ within the team ministry (s.34(8)).

Group ministry and team ministry are not mutually exclusive.  A group ministry may include a benefice which is constituted as a team ministry (s.35(6)).

If a benefice is vacant for a long time, a licensed priest-in-charge acts in place of the incumbent.

5.  Patronage

A right of presentation to a benefice, or advowson, was originally a right of property, a so-called ‘incorporeal hereditament’ similar to a right of way.  However, as a result of the Patronage (Benefices) Measure 1986, most advowsons have been severed from land (s.32).  Now they are merely the personal right of the patron.  Only rights of presentation attaching to benefices and bishoprics retain a connection to land.  Thus if an incumbent is ex officio the patron of another benefice, the right of patronage continues to be part of the incumbent’s benefice property.

The patronage of a statutory benefice or plurality should be provided in its constitution (2011 Measure, s.46(2)).  If the constitution is silent the right of presentation vests in the diocesan patronage board (s.46(3)).  The patronage of a team rectory and the appointment of a team vicar are regulated by schedule 3 of the 2011 Measure.

A patron’s title is now proved by registration on a diocesan register (1986 Measure, s.1).

The patron’s exercise of a right of presentation (as distinct from his ownership of it) may be suspended under s.88 of the 2011 Measure.  Hence the need for a priest-in-charge.

6.  Endowment

The mediaeval canon law discussed in the preceding post suggests that the parish church and the supporting endowment were originally inseparable, and that together they formed the basis of the ecclesiastical parish.  Blackstone held that the boundaries of a parish were originally determined by the appropriation of tithes to a particular church and incumbent (Commentaries, vol 1, p.109).  From the middle ages until relatively recently, incumbents resembled self-employed farmers, men of property who lived off the rents and profits of their glebe land, and, of course, tithes.

The case of Greenslade v Darby (1868) 37 Law Journal 137 suggests that the churchyard may be a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The rector (who in that case was a lay rector, not an incumbent) therefore has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

Tithes were originally payable in kind (wood, grain, cattle, sheep, poultry etc).  Later, they took the form of a payment of money called the tithe rentcharge or corn rent.  The Tithe Act 1836 commuted almost all tithes into rentcharges.  Tithe rentcharge was finally abolished a century later by the Tithe Act 1936.

The Endowments and Glebe Measure 1976 finally severed the ancient connection between parish church and endowment.  Under s.15 of the Measure, all benefice glebe that had hitherto vested in the incumbent was transferred to the diocesan board of finance (s.15), and so became part of the diocesan glebe instead (s.45(1).  Modern incumbents therefore resemble salaried employees rather than gentleman farmers.  The diocesan board of finance is now responsible for the payment of clergy stipends (Miscellaneous Provisions Measure 2000, s.1(1)).  There is a national minimum stipend fixed by the Archbishops’ Council (Terms of Service Regulations 2009, reg 11(1)).  Pensions are also administered nationally by the Church of England Pensions Board.

7.  Parsonage

Although he is no longer master of glebe and tithe, the incumbent remains the nominal freeholder of the parsonage (the official residence of the benefice) even if his occupation of it now resembles that of a tenant or licensee of the Church.

The Parsonages Measure 1938, extensively amended by more recent Measures, and the Repair of Benefice Buildings Measure 1972 are the two principal statutes regulating parsonages.

Much of the 1972 Measure resembles a kind of statutory lease, stating the respective rights and duties of the Church and the incumbent towards the parsonage.  It regulates the incumbent’s occupation of the parsonage.  The 1938 Measure, by contrast, regulates dealings with parsonages between the Church and outside third parties.  It is principally concerned with the sale of old parsonages and the purchase of new ones.  Thus, while much of the 1972 Measure resembles a lease, the Parsonages Measure resembles a conveyancing contract and protocol.

Although the incumbent is freeholder, the Endowments and Glebe Measure 1976 confers a power of compulsory acquisition of the parsonage from him, if the Church considers that it is no longer necessary for his ‘convenient occupation’ of the incumbent (s.32).

A house that is built or purchased for use as a parsonage must be certified as such by the bishop (Parsonages Measure 1938, s.11).  The constitution of a benefice may, but need not, designate the official residence of the incumbent, or of a team vicar (Measure and Pastoral Measure 2011, s.45(1)).

An incumbent has no a priori right to a parsonage house, just as a parish has no right to a parish church.  However, under the new regime of ‘common tenure’ introduced by the Ecclesiastical Offices (Terms of Service) Measure 2009, other full-time stipendiary clergy and lay ministers are entitled to accommodation ‘for the better performance of [their] duties’ (s.4(1)).  A priest-in-charge of a vacant benefice will usually live in the parsonage (cf. 2011 Measure, s.86(4)).

8.  Churchwardens

The normal rule is two churchwardens to a parish, but the Churchwardens Measure 2001 permits a different number of churchwardens on the basis of local custom or special statutory authority (s.11).  Moreover, if a single parish has more than one parish church, or has a parish church and a PCW, there must be two churchwardens for each church or PCW (s.1).

If there is a team ministry for a parish containing more than one church or place of worship, the constituting scheme may allow for deputy churchwardens for each, and for the functions of churchwardens to be delegated to them (Mission and Pastoral Measure 2011, schedule 4.3(2)(d)).

9.  Parochial Church Council

Every parish must have a parochial church council (‘PCC’).  The constitution of the PCC is provided in the Church Representation Rules.  The PCC must include a certain number of lay members elected at the annual parish meeting by those enrolled on the electoral roll of the parish.

The Church Representation Rules permit parishioners to make certain variations to the structure of parochial administration.  Such variations may also be authorised under the Measure and Pastoral Measure 2011, but on a temporary, experimental basis only.  There are five particular variations:

(1) If a parish has more than one place of worship, the PCC may be specially structured ‘in such manner as to ensure due representation of the congregation of each church or place [of worship]’ (rule 18).  Thus each congregation will be separately represented on the PCC.

(2) More radically, a separate district church council (‘DCC’) may be constituted for the district of the parish in which a church or place of worship is situated.  A DCC need not be constituted for every district in the parish containing a place of worship, and it is possible to have both a specially structured PCC and one or more DCCs at the same time.

Variations (1) and (2) apply to a parish with more than one place of worship.  The other three variations depend on the benefice rather than the place of worship:

(3) There may be a joint PCC where two or more parishes share a single benefice or where benefices are held in plurality (rule 19).

(4) A team council may be established where two or more parishes are served by the same team ministry (rule 20).

(5) A group council may be established for the parishes served by a group ministry (rule 21).

However, notwithstanding these variations, each individual parish retains its own PCC at all times.

Ecclesiastical Sequestration

Halsbury’s Laws of England, volume 14 (the 4th edition)

Sequestration is the administration of the estate of a benefice otherwise than by the incumbent.  It is ‘a process … whereby the profits and income of the benefice … are ordered to be taken by … the sequestrator and to be applied in the manner required by the circumstances of the case …’ (para 892).

There are two types of sequestration:

(1) a creditor’s sequestration and

(2) the bishop’s (or ordinary’s) sequestration.

Creditor’s Sequestration

This occurs when an incumbent is declared bankrupt, or has an unsatisfied judgment debt entered against him.

Sequestration is required in such a case because of ‘[the] peculiar kind of interest which a parson has’ (Meredith (1879) 11 Chancery Division 731 at p.733)

‘The estate [of a benefice] cannot vest in the [trustee in bankruptcy or receiver] because he is a layman: it is an estate which can only be held by a clerk.  But then the law is not to be defeated by that circumstance.  It says that the profits of the living are applicable for the payment of creditors, that the [trustee / receiver] has a right to issue a sequestration, which remains operative so long as the creditors are unpaid’.

Sequestration is effected by a order from the secular court to the bishop, requiring him ‘to enter into the benefice and the church and take and sequester them into his possession … until he has levied debts, costs and interest out of their profits’ (para 895).

Sequestration therefore gives the bishop a right of possession of the benefice estate.  However, possession extends only to the benefice glebe and tithe, not to the official residence (para 913).  Even though insolvent, the incumbent remains in office and continues to be responsible for the ecclesiastical duties of the benefice.  He therefore remains subject to the duty of residence on benefice, and this requires possession of the parsonage.

Once in possession the bishop appoints a sequestrator.  Thus the bishop acts under an order from the secular court, but the sequestrator acts under an order from the bishop.  The ecclesiastical sequestrator has no direct relationship with the secular court.

However, a sequestrator can bring an action ex officio ‘to the same extent as the incumbent might have done if the benefice had not been under sequestration’ (para 915).

The bishop remains responsible to the secular court for the sequestration.  However, the creditor’s claim on the benefice is subject to the Church’s jurisdiction.  The creditor has no control over the bishop’s choice of sequestrator.  If the incumbent is suspended from office as a result of ecclesiastical disciplinary proceedings, the creditor loses any rights over the benefice property (para 899).

The reason for this rule is, that if the incumbent is suspended from office then he ceases to be entitled to the benefice profits.  This means that the creditor also ceases to be entitled, since he claims through the incumbent (para 902).

If the incumbent is suspended, this also means that the creditor loses his place in the queue for payment of debts.  A later sequestration, at the behest of another creditor, will have priority over the earlier sequestration that was lost because of the suspension.

The same consequences apply if the incumbent is moved to another benefice or ecclesiastical office instead of being suspended.  However, the incumbent is not permitted to accept a new office without the permission of both the bishop and the sequestrator (para 921).

If a creditor’s sequestration continues for six months, the bishop must assume responsibility for the ecclesiastical duties of the benefice (para 901).  This means that he can appoint a curate and also ‘inhibit’ the incumbent from officiating in church.  However, this does not assist the creditor, because the curate’s stipend is payable out of the sequestration and has priority over the debt owed to the creditor.

Bishop’s Sequestration

This is of two types:

(1) disciplinary and

(2) due to a vacancy in the benefice (para 905).

A bishop’s sequestration may be issued under various common law and statutory powers in respect of various disciplinary offences of the incumbent, including failure to reside on benefice, accepting secular employment and failing to repair benefice buildings.  A sequestration will issue if the incumbent is suspended from office as a result of disciplinary proceedings.

This time the bishop issues the sequestration, not the secular court.  A disciplinary sequestration may be subject to an appeal to the Archbishop.

If a sequestered incumbent has ex officio rights of presentation to another office, these are exercised by the bishop of the diocese in which the vacancy occurs, not by the incumbent’s own bishop or by the sequestrator (para 920).  However, a sequestered incumbent retains his right to appoint the parish clerk jointly with the parochial church council.

In a vacancy, as distinct from a disciplinary case, the sequestrators are ‘to account for the net balance [of benefice profits] to the succeeding incumbent, who may maintain an action against the sequestrators for the balance’ (para 910).

Although the general rule is that sequestration does not give the bishop possession of the official residence of the benefice, the Pluralities Act 1838 empower the bishop to enforce the incumbent’s delivery of possession to a curate, if the incumbent has been suspended from office (para 915).

Also, during a vacancy, the sequestrators must provide for ‘the care, custody and upkeep of the residence’ which presumably requires a degree of possession (para 911).

Bonaker v Evans

(1850) 117 English Reports 840

This concerned a bishop’s sequestration.  The bishop order sequestration of the incumbent’s benefice under a statutory power.  He was therefore acting of his own motion, and not in obedience to an order of the secular court.  His reason for doing so was that the incumbent has neglected to reside on his benefice, in breach of the bishop’s order to do so.

However, the secular court held that the sequestration was void.  It accepted that the bishop was ‘the proper authority to decide whether there has been a non-compliance with [his] order to reside’ (p.844).  However, this power was still subject to the requirement of natural justice that the incumbent should have a fair opportunity of answering the complaint of non-residence.

In this case natural justice had not been done to the incumbent.  The bishop had ordered him to reside, and had threatened sequestration, but the complaint of non-residence had not been made clear to him, and he had not been invited to rebut the complaint.

The requirement of natural justice arose because of the nature of the sequestration proceedings.  Was the bishop’s sequestration a ‘criminal’ punishment of the incumbent for the offence of non-residence?  It so, he was entitled to be properly heard before being punished.  Or was the sequestration merely a ‘civil’ remedy of enforcement of the incumbent’s acknowledged duty to reside on his benefice?

The court decided that it was both: ‘although one of the objects of … sequestration may be to enforce future residence, another clearly is to punish past delinquency’ (p845).  Also any disciplinary proceedings could ultimately result in the incumbent’s loss of his benefice, and therefore ‘certainly must be treated as penal’. 

Sequestration Today

The account in the 4th edition of Halsbury’s Laws suggests that there is extensive case law and statute law concerning sequestration.  Volume 34 of the very recent 5th edition of Halsbury’s Laws, published in 2011, makes only brief reference to creditor’s sequestration and concentrates on bishop’s sequestration (paras 698-714).  However, it notes that ‘writs of sequestration may still be applied for in the civil courts’ (para 669, note 3).  Thus it would seem that the old law remains in force.

However, the law concerning sequestration can be of little practical use today, beyond looking after the parsonage house during a vacancy.  This is because modern incumbents are no longer the legal owners of the property that was subject to sequestration.  S.15 of the Endowments and Glebe Measure 1976 provides that all benefice glebe should vest in the local diocesan board of finance.  Hence the incumbent has nothing left to sequester.  The incumbent retains a nominal freehold of the official residence, but the residence was always exempt from a creditor’s sequestration.

The Miscellaneous Provisions Measure 1992 confirms that the bishop has power to appoint the churchwardens, and other persons if he wishes, as sequestrators during a vacancy in the benefice (s.1).  Now he merely appoints them.  A formal writ of sequestration is no longer required.

The extensive law concerning sequestration reminds us how the status of incumbents has changed in recent decades.  Modern incumbents resemble salaried employees, with fixed stipends and other ‘terms of service’.  Their predecessors, by contrast, were really self-employed farmers, men of property who lived off the rents and profits of their estates.

Modern incumbents share some of the insecurity that attends secular employment.  They may be made redundant in the course of a pastoral reorganisation.  The bishop may also, in effect, withdraw the parson’s freehold by suspending the patron’s right of presentation to a vacant benefice (Mission and Pastoral Measure 2011, s.85).  Any ‘incumbent’ appointed while a suspension is in force is merely a licensee of the bishop.

Incumbents formerly had much greater security of tenure.  However, security of tenure did not guarantee security of income.  The incumbents of former times could not be made redundant like employees, but they suffered all the insecurities of the self-employed.  (This was long before farmers received state subsidies).  A bad harvest, or some other misfortune, could bankrupt the self-employed incumbent through no fault of his own.  The large number of reported cases on creditor’s sequestration may give the impression that many incumbents were feckless, or even dishonest.  This is unfair.

Ecclesiastical Corporations

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.