The Easter Offering: Duty and Charity

‘[At] the Offertory, so many as are disposed, shall offer unto the poor men’s box every one according to his ability and charitable mind.

And at the offering days appointed, every man and woman shall pay to the Curate [i.e the incumbent] the due and accustomed offerings.’  (Book of Common Prayer 1549, rubric)

There seem to be 2 widely held assumptions concerning the Easter offering, that:

(1) it is the collection taken at church services on Easter Day and

(2) the proceeds are part of the incumbent’s official income, at least if the incumbent wishes to claim them.

The 1549 rubric quoted above suggests that this assumption is mistaken.  The rubric indicates a clear distinction between the Easter offering and the normal offertory collection, including the collection taken on Easter Day.  The Easter offering is separate from, and additional to, the offertory collection.

Moreover, the two payments are different in character.  The offertory collection is a voluntary charitable donation for the relief of poverty.  The Easter Offering, by contrast, is a ‘due’ payment, not a gift determined by charitable disposition.  A due is a duty (just like a duty on imported goods).  The Easter Offering is a compulsory payment, a tax payable to the incumbent.

As the rubric implies, Easter was not the only ‘offering day’ in the middle ages.  Phillimore relates that there were originally 4 offering days in all, Christmas, Easter, Whitsun-Pentecost and the feast of the dedication of the parish church (Ecclesiastical Law, 2nd edition 1895, p.1243).

However, from 1552 onwards, Easter is the only offering day referred to in the Book of Common Prayer.  The revised rubric provides that

‘yearly at Easter, every parishioner shall reckon with his parson, vicar or curate … and pay to … him all ecclesiastical duties, accustomably due …’.  The word offering no longer appears.

This revised wording, of course, makes more explicit the compulsory nature of the payment, and its difference from the voluntary donation for the poor.

Phillimore suggests that the Easter duty was a common law right of all incumbents (p.1243).  Therefore an incumbent did not have to prove his right to payment.  An Easter offering was a larger payment than the common law duty, but it was payable only if the incumbent could prove an immemorial custom in the parish for payment of the offering (i.e a custom dating from 1189, very difficult to prove).

Victorian legislation permitted individual parishes ‘to enter into a parochial agreement for the commutation of Easter offerings’ (p.1244), i.e to cancel the parish offering in return for payment of a one off lump sum to the incumbent.

Although reference to Whitsun as an offering day was removed from the Prayer Book in 1552, Pentecostals (Whitsun offerings or duties) may have continued after that time.  The Ecclesiastical Jurisdiction Measure 1963 provides that Pentecostals ‘shall cease to be exigible’ (demandable) (s.82(3)), but does not mention the Easter duty / offering.

The Easter duty / offering referred to in the Prayer Book has not been generally abolished, but it has been effectively destroyed by inflation.  The common law duty was a mere twopence a head (2d), so would now be impossible to enforce in practice.  An immemorial offering (if it can be proved) will only be worth a few pence more.  Common law and customary payments may not be adjusted for inflation (see the case of Bryant v Foot (1867) 2 Law Reports Queen’s Bench 161).

On our analysis, therefore, the incumbent’s only legal right is to the compulsory, though negligible, Easter duty.  He has no a priori common law right to keep the voluntary Easter collection for himself (any more than collections taken on other Sundays).  Even though it was removed from the rubric as long ago as 1552, the word ‘offering’, with its connotation of voluntary donation, has served to conflate the two payments artificially, encouraging a perception that they are one and the same.  However, they are clearly distinct in law.

The rubric concerning the offertory collection has changed since 1549.  It now provides that ‘the money given at the Offertory shall be disposed of to … pious and charitable uses’.  This, of course, allows a broader scope of use of the money than that available in 1549.  The money can now be applied to many uses other than the relief of poverty.  However, it is hard to argue from this that the incumbent’s personal benefit constitutes a ‘pious and charitable’ use.

The Parochial Church Councils (Powers) Measure 1956 empowers the parochial church council (‘the PCC’) ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated’ (s.7(iv)).   If they cannot agree, the bishop decides instead (s.9(3)).

This power was originally expressed to be ‘subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.  The incumbent and PCC (and the bishop) therefore remained bound by the rubric.  They could decide how, exactly, the collection money was to be spent, but it still had to be spent on pious and charitable uses.

This restriction on the use of the collection money was removed in 1988, so the incumbent and PCC are no longer bound by the rubric at all.  However, it is arguable that, even in its amended form, the 1956 Measure does not confer an unfettered discretion on the incumbent and the PCC.  It suggests that the collection money must still be applied for the benefit of ‘objects’, i.e purposes or causes, rather than the benefit of particular people.

It has been pointed out that the rubric in the Book of Common Prayer applies only to the collection taken at Holy Communion.  The Prayer Book makes no provision for collections taken at Morning and Evening Prayer and other services.

In the case of Marson v Unmack (1923) Probate 163 the Court of the Arches suggested that ‘Collections … other than … the offertory, may lawfully be made for objects determined by agreement between the incumbent and the PCC.  Such objects may be and … ought to be announced to the congregation before collection …’ (p.169).  Again, the reference is to ‘objects’, and the Easter collection is not specifically discussed.

Apart from the wording of the 1956 Measure, it is arguably inconsistent with the incumbent’s trusteeship of the collection money for him to be able to determine that it should be paid to himself, even with the agreement of the PCC and the bishop, and even if the congregation is fully informed.  There is a clear conflict of interest.  A trustee may not profit from his trust.

If the incumbent’s claim on the voluntary Easter collection has no basis in common law it obviously requires a statutory basis.  It might therefore be appropriate to amend the 1956 Measure to provide this.

Moore’s Introduction to English Canon Law (3rd edition 1993) suggests that nowadays incumbents do not bother to claim the Easter collection, ‘since such offerings merely result in a pro tanto reduction in the [stipend] paid by the diocese’ (p.92).  Thus the stipend is simply reduced by the amount of the Easter collection money so the incumbent is no better off.

The Terms of Service Regulations 2009 confirm that an incumbent’s right to be paid the national minimum stipend is not absolute, but is subject to ‘any [other] income received by the office holder from other sources which is related to or derived from the duties of the office’ (reg 11.1).

Nevertheless the question of the Easter collection may still be relevant, even if incumbents no longer benefit personally.  A large sum of donated money is at stake.  If the incumbent makes a purported covenant or assignment of the Easter collection (to the diocese or elsewhere), this will be invalid if he is not entitled to the money in the first place.  (Nemo dat quod non habet).  Likewise, any decision on the allocation of the money, taken under the powers conferred by the 1956 Measure, may be flawed if it is influenced by the mistaken belief that the incumbent has a legal claim on it.

The Enforcement of Chancel Repair

The Church of England’s Legal Advisory Commission has argued that the power conferred on the parochial church council (PCC) by the Chancel Repairs Act 1932, to enforce a lay rector’s liability to repair the chancel, ‘represents an asset of the PCC’, which the PCC is required to ‘protect and preserve’ (Opinion, October 2007).

The word ‘asset’ may suggest that the PCC’s ability to enforce the rectorial liability is a species of property, similar to a right of way or other easement over land.  It constitutes a ‘dominant’ right over the lay rector’s ‘servient’ property. 

However, the PCC has no legal estate in the chancel, nor in any other part of the parish church.  Indeed its power to acquire an interest in any land is limited (PCC (Powers) Measure 1956, ss.5 and 6).  It is therefore not in the same position as the owner of an easement.

It is not very meaningful to speak of the chancel repair liability as an asset of the PCC, when the PCC has no legal estate in the chancel.  It is true that the case of St. Edmundsbury v Clark (No.2) 3 All England Reports 902 held that the PCC has a right of way to the church and churchyard.  The PCC must also have a right of possession or occupation (as distinct from ownership) of the church, including the chancel, sufficient to discharge its legal responsibilities thereto.

However, as St. Edmundsbury makes clear, these rights are limited to the access necessary to the discharge of the PCC’s own legal responsibilities towards the church.  The 1932 Act, by contrast, is concerned with the discharge of the lay rector’s responsibility to the church, not the PCC’s.

If the lay rector’s liability can be said to constitute an ‘asset’, that asset belongs to the parish, or even to the Church of England generally, but not to the PCC.  Parish churches exist ‘for the purposes of religion and the worship of God’ (Griffin v Dighton and Davies (1864) 122 English Reports 767 at 771).  The lay rector’s liability exists to serve these purposes, and the Church is responsible for administering them.

It is true, however, that parish and Church have no legal personality, and that the lay rector’s liability can only be enforced by the PCC, or by the churchwardens if there is no PCC (1932 Act, s.4(1)).  Thus, in exercising its rights under the 1932 Act, the PCC acts on behalf of the parish/Church.  It acts as their agent or representative, but not as trustee of any property.

So what is the PCC’s duty towards the parish/Church?  The 1932 Act does not impose any obligation on the PCC.  It provides only that the PCC ‘may’ act to enforce the rectorial liability.  There is nothing in the wording of the Act to suggest that the PCC must do so.

PCCs are now constituted under the Parochial Church Councils (Powers) Measure 1956.  S.4 of the 1956 Measure provides that, subject to certain exceptions, the PCC has ‘the like powers, duties and liabilities’ that formerly belonged to the vestry and the churchwardens.

Before the 1932 Act, legal proceedings against a lay rector could be taken only in the ecclesiastical court.  The churchwardens, as officers of the ecclesiastical court and of the parish, might bring the proceedings.  Such proceedings were of limited effectiveness, because the ecclesiastical court could only impose spiritual sanctions against a defaulting lay rector.  It could ‘admonish’ the lay rector to do his duty, and excommunicate him for neglecting it.  However, it lacked the powers of enforcement available to the secular civil court (bailiffs etc).

Thus the purpose of the 1932 Act was to enable the lay rector’s liability to be enforced in the secular civil court.  However, though it provided for enforcement in the secular court, the 1932 Act also abolished proceedings in the ecclesiastical court for chancel repair (s.1).

Annual visitations are not affected by this latter provision.  A complaint can still be laid against a defaulting lay rector before the visiting archdeacon.  Such a complaint might draw attention to the existence of the rectorial liability, but could not per se lead to proceedings under the 1932 Act.

Moreover, one of the exceptions to the transfer of responsibilities in s.4 of the 1956 Measure relates to the ‘powers, duties and liabilities with respect to visitations’.  The churchwardens continue to act in visitations, not the PCC.  In consequence, any ‘duty’ to denounce a defaulting lay rector in a visitation belongs to the churchwardens, not to the PCC.

Thus any duty to take steps to enforce the rectorial liability only ever existed in ecclesiastical law, and belonged only to the churchwardens.  That duty (if it existed) was abolished by the 1932 Act.  As mentioned, the 1932 Act does not replace the churchwardens’ duty with a new duty on the PCC to enforce the rectorial liability.

S.7 of the 1956 Measure confers certain ‘miscellaneous powers’ on PCCs, in addition to the responsibilities inherited from the churchwardens and the vestry.  This includes ‘Power to frame an annual budget of moneys required for … the work of the Church in the parish, and to take such steps as they think necessary for the raising collecting and allocating of such moneys’ (s.7(1)).

This wording does not impose any duty to take action under the 1932 Act.  It refers to the usual fundraising activities undertaken by any charitable organisation.  Even if it could be said to include enforcement of the lay rector’s liability, the wording makes clear that this is a matter for the PCC’s discretion.  It does not impose a duty or liability, any more than does the 1932 Act.

There is case law which suggests that if a PCC incurs a liability without proper authority, the individual PCC members involved will be personally responsible for this (see for example Fell v Official Trustee (1898) 2 Chancery 44).  The courts will not assist churchwardens or PCC members who, over-anxious to fulfill their duties to take care of the church, exceed their authority.  However, there is a considerable difference between incurring a liability without authority and neglecting to take steps to enforce the liability of a third party.

Nor can it be argued that the secular court has some a priori power to require the PCC to take action under the 1932 Act.  Not only does the wording of the 1932 Act contradict this argument, the 1932 Act  itself would hardly have been necessary if such a power existed.  The 1932 Act was passed precisely because the secular court had no power to enforce ecclesiastical liabilities towards the parish church.

It must therefore be concluded that the PCC has no ‘duty’ cognisable in any secular court to exercise its power under the 1932 Act. 

This does not mean that nothing can be done about a PCC which neglects to exercise this power.  Just as the ecclesiastical courts used to impose sanctions against defaulting ecclesiastical officeholders, so modern ecclesiastical law provides sanctions, albeit of a rather different character.

Thus the Synodical Government Measure 1969 enables parishioners (or rather, the parish electors) to vote in new PCC members.  If the parishioners decline to take action, and the church falls into disrepair as a result, the Church authorities have wide powers under the pastoral legislation (now contained in the Mission and Pastoral Measure 2011) to dissolve or restructure the parish, and to close the church building.  As Chancellor Newsom observed, ‘the primary remedy for a badly neglected church is to make it redundant, since its parishioners have shown by their neglect that they have not cared to look after it’ (The Faculty Jurisdiction, 2nd edition, Sweet & Maxwell, London, 1993, p.98).