1 This ‘steeple cup’ was included in the exhibition held at the Goldsmiths’ Company in 2008, Sacred Gold and Silver 800–2000. Somewhat poignantly it had been sold by the church in 1845 and repurchased in 1882.

2 The mount dated from 1582, although the glass vessel was a nineteenth-century replacement. It was sufficiently fine to be displayed at an exhibition at Christie's in 1955, Silver Treasures from English Churches.

3 Remarkably, the chalice which they did use dated from 1571.

4 [2013] PTSR 91.

5 This was an analogy drawn by Newsom Ch in the Sacombe case (see below). The position at law is that the cup was vested in the churchwardens, who, it has been held, are not charitable trustees (see re St Lawrence, Wootton [2015] Fam 27 (Court of Arches) at para 39), but whether they are or are not does not affect the merits of the argument from scripture.

6 The cup was subsequently sold at Bonhams for £23,750. Its present whereabouts are unknown.

7 Re St Lawrence, Wootton at para 35: ‘We consider that the dictum … adopted too narrow a role for the church as a guardian of art treasures.’

8 In 1565, Bishop Guest of Rochester issued an injunction that ‘the chalice of every church be altered into a decent communion cup to therewith to minister the Holy Communion, taking away no more thereof but only so much as shall pay for the altering of the same into a cup’.

9 See re St Mary, Gilston [1967] Fam 125 at pp 128–129. A visitation of Archbishop Abbot refers to ‘a flagon of silver, tinne or pewter to put wine in, whereby it may be set upon the communion table, at the time of the blessing thereof’, confirming the consecration of the wine for communion in the flagon. Churchwardens’ accounts for the eighteenth century show large quantities of wine being consumed: in Beoley in Worcestershire, five quarts were required for the Easter communion.

10 For an account of the use and design of communion plate from the Reformation to 1830, see Oman, C, English Church Plate 597–1830 (London, 1957), pp 191–234 Google Scholar; see also, generally, Emmerson, R, Church Plate (London, 1991)Google Scholar.

11 This deficiency is remedied in Canon F1 of the Canons of 1964 and 1969.

12 See Blackstone, W, Commentaries on the Laws of England (London, 1765), vol 1, p 382 Google Scholar.

13 Prideaux, H, Directions to churchwardens in the faithful discharge of their office (London, 1713), p 94 Google Scholar.

14 In Prideaux, C, Practical Guide to the Duties of Churchwardens, twelfth edition (London, 1871), p 366 Google Scholar, a footnote was added referring back to the text (which was unchanged from earlier editions) making clear that the churchwardens were a corporation for the purpose of holding the goods of the church. The authority for holding them to be a corporation for these purposes is Attorney-General v Ruper (1722) P Wms 125 and Liddell v Beal (1860) 14 Moo PC 1. See also Shelford, L, A Practical Treatise on the Law of Mortmain (London, 1836), p 28 Google Scholar; Burn, R, Ecclesiastical Law, ninth edition (London, 1842), vol 1, p 408a Google Scholar.

15 See Prideaux, Practical Guide, pp 184–185.

16 Phillimore, R, The Ecclesiastical Law of the Church of England (London, 1873–1876), p 1797 Google Scholar.

17 Ibid, p 1792.

18 11 Halsbury's Laws of England, first edition (London, 1910), p 465, para 906Google Scholar.

19 34 Halsbury's Laws of England, fifth edition (London, 2011), p 224, para 278Google Scholar.

20 As to which, see Tudor, O, Charities, tenth edition (London, 2015), p 313, para 6–031Google Scholar.

21 See Lea, W, Church Plate in the Archdeaconry of Worcester (Worcester, 1884), p 22 Google Scholar.

22 It is accepted that churchwardens are not charity trustees within the special meaning of that term in the Charities Act 2011, but this is not determinative of whether a person or a body holds property on charitable trusts.

23 It was by Octavius Morgan: ‘On a chalice and paten belonging to the parish church of Nettlecombe, in the county of Somerset, with remarks on early English chalices’ (1870) 42.2 Archaeologia 405–416 at 411–412.

24 In cases concerning the sale of church silver it is very often the case that the silver has been stored in a bank for many years. However, no cases have been found where this has been authorised by faculty. This has no doubt been because it was seen as being a temporary arrangement (albeit one that might continue indefinitely). Until recently, loans to museums were not in practice authorised by faculty.

25 Quoted in Evans, J, The Church Plate of Gloucestershire (Stow on the Wold, 1906), pp xxi–xxii Google Scholar, where the account of this case is set out. See also Ferguson, R (ed), Old Church Plate in the Diocese of Carlisle (Carlisle, 1882), p 178 Google Scholar.

26 The Times, 5 January 1905, p 9. Hardwicke Rawnsley was Rector of Crosthwaite in the Diocese of Carlisle. He is now remembered as a pioneer of the conservation movement and a founder of the National Trust.

27 See Evans, Church Plate of Gloucestershire, p xxii.

28 In the light of subsequent discussion, it may be noted that Chancellor Chadwyck-Healey was a Fellow of the Society of Antiquaries.

29 See The Times, 21 December 1905, p 7. The civil parish had been transferred to Somerset in 1896, but at the time the ecclesiastical parish was still in the Diocese of Exeter. If the chalice survives at the church, it was not noted in Pevsner South and West Somerset (1958).

30 A copy of this circular is held in the papers of Archbishop Davidson (Lambeth Palace Library).

31 The Society commended the loan to the British Museum of a German amber tankard dating from 1659 which had been bequeathed to St Mary, North Mymms in 1751. The donor, Dame Lydia Mews, was the widow of Sir Peter Mews, sometime Chancellor of the Diocese of Winchester.

32 Lambeth Palace Library, papers of Archbishop Davidson, circular from the Society of Antiquaries, 28 February 1906.

33 The Bishop of St Albans had opposed the sale of the North Mymms tankard. The sale by Holy Trinity, Prince Consort Road did not go ahead.

34 Report from the Joint Select Committee of the House of Lords and the House of Commons on the Ancient Monuments Consolidation and Amendment Bill (London, 1912), p vii, para 13.

35 This had become the Victoria and Albert Museum in 1899.

36 Reported in the Teesdale Mercury, 5 February 1913.

37 Re St George-in-the-East, Stepney [1920] P 97 at p 101. The case was heard together with re St Mary, Northolt, with which it is reported.

38 Each item had engraved on it ‘St George's in the East, Mr Joseph Crowcher, Churchwarden’. There was some other (Sheffield) plate but it seems that it was not very valuable: see ibid, p 101. In the judgment ‘Stafford’ appears to be a misprint for ‘Sheffield’.

39 Letter from Dibdin to Winnington-Ingram, 23 December 1919, available at <http://www.stgitehistory.org.uk/library/faculty1920dibdinletter.jpg>, accessed 13 October 2017.

40 The parishioners were named as respondents to the petition but, in the light of their resolution, did not enter an appearance.

41 Ibid, p 104.

42 He referred to, but did not expressly address, the passage in Prideaux's Practical Guide referring to the need for the consent of the parishioners. The explanation may be that the actions took the form of proceedings by the incumbent and churchwardens against the parishioners, who did not enter an appearance. The grant of a faculty may be seen as dispensing with the consent of the parishioners.

43 Re St George-in-the-East, Stepney, pp 99–101.

44 Ibid, p 102.

45 It was recorded as still being held by the church in Pevsner, N, Middlesex (Harmondsworth, 1951), p 126 Google Scholar.

46 Re St Catherine, Sacombe, 23 June 1964 (unreported).

47 This is the oldest surviving piece of secular gold plate.

48 The judgment itself only identifies the Thirkleby and Kenn cases. See also a letter written by a partner in Christie's to the churchwarden who was the petitioner in Sacombe, the firm having acted in these cases. The letter is found in the file of the case held by the Hertfordshire Record Office (DP/89/6/4). There was also the sale of a tazza/alms dish from Arlington in Devon to the Goldsmiths’ Company in 1953: See C Blair in Country Life, 18 June 1970.

49 Guidance quoted in re St Mary, Westwell [1968] 1 WLR 513.

50 Report of the Committee of Enquiry into the Sale of Works of Art by Public Bodies (London, 1964), para 44.

51 Re St Catherine, Sacombe, 23 June 1964 (unreported).

52 Keeper of the Department of Metalwork at the Victoria and Albert Museum and author of English Church Plate (see n 10).

53 In a letter dated 8 November 1965 to the Secretary of the Council for the Care of Churches, the vice-chairman (William Croome) commented on Newsom Ch's argument: ‘What a curse is “Wiggy”! Granting those two without a hearing, “valuable guidance” says Newsom’ (Council for the Care of Churches, file 32/066).

54 See files of the Council for the Care of Churches: CARE/FAC.

55 [1967] P 125.

56 See ibid, p 131C. At p 128D, he refers to it as ‘superfluous’.

57 Newsom's criticism of Kempe interpretation of Archbishop Rich was itself criticised by Lord Dunboyne, Commissary General, in re St Mary's Westwell [1968] 1 WLR 513.

58 See the approach of the Court of Arches to a proposed sale of a font in re St Peter, Draycott [2009] Fam 93 (esp paras 37–57).

59 Re St Mary, Gilston, p 132G. It is fair to record that in Sacombe Newsom did observe ‘In some cases, no doubt, the connexion of a particular piece of silver, or other treasure, with a particular church is of historical importance. In such a case there might well be cogent reasons why the Court should refuse to facilitate the breaking of that connexion.’ However, when a strong historical link arose in re St Gregory, Tredington it did not prevail against the argument for an unrestricted sale.

60 Re St Mary, Gilston, p 126F and p 133B.

61 Re St Mary, Westwell [1968] 1 WLR 513.

62 This case is referred to in the judgment of Wigglesworth Ch in In re St Mary Woodleigh (unreported, 16 August 1967) 1 CCCC 6 (Consistory Court of the Diocese of Exeter).

63 [1972] Fam 236.

64 Judge Conolly Gage, the father of Sir William Gage (subsequently also Chancellor of the Diocese of Coventry, as well as of Ely).

65 However, see Wigglesworth Ch's decision in In re St Nicholas, Wickham (below). There is no material about the appointment of George Newsom in Archbishop Ramsey's papers.

66 Re St Gregory, Tredington, p 244B (which speaks of them potentially being retained by the County Museum) and p 245A (which speaks of them being held in a bank or museum). Gage Ch's judgment makes it clear that they had been displayed in the County Museum for seven years until the parish took them back with a view for sale. As the deputy dean would have appreciated from Gage Ch's notes of the evidence (which were before him), this fact was part of the evidence before the consistory court of Miss Jocelyn Morris, the Curator of the County Museum (see Court of Arches, file M/40).

67 The purpose of the expenditure is set out in the transcript of the judgment, which is omitted from the Law Report.

68 Although not reported, the text of Gage Ch's judgment exists and is held in the records of the Court of Arches. It is a robust, common-sense judgment which sounds as if it were delivered extempore. It refers to no authority.

69 From Newsom's order it appears that he only had before him Gage Ch's judgment and his notes of the evidence. In fact it appears from the judgment that he had some of the documentation before the Consistory Court, but not all of it. Subsequent to Newsom's judgment, the Council for the Care of Churches recorded in a formal minute its dissatisfaction with the Consistory Court processes.

70 Re St Gregory, Tredington, p 243G.

71 Ibid, emphasis added.

72 Re St Mary, Gilston, p 126G.

73 In re St Cyriac, Lacock (2012) 15 Ecc LJ 250 (where there was not a financial emergency), the sale proceeds were to be held in a trust fund for the repair of the church but were not re-invested in church plate (save that a replica cup was provided).

74 [2013] PTSR 91, p 116.

75 Re St Gregory, Tredington, p 244F.

76 There is also a treasury in the church of St Mary Magdalene, Newark. The treasuries at Hereford and London have closed, and that at Oxford shares its space with the gift shop.

77 GS 132.

78 See Proc GS, 4 July 1973, pp 423–427.

79 Unreported. The items included: Mary I silver-gilt cup and cover; Elizabeth I silver-gilt communion cup and cover; pair of Charles II flagons; pair of Charles II patens.

80 Unreported. The item, an outstanding tazza (1591), was bought by the Basingstoke Museum, but the chancellor did not require a restricted sale. Before sale it was displayed in the Winchester Diocesan Treasury.

81 Unreported. The item was a pewter flagon (1635).

82 Unreported. It concerned a silver flagon (1646).

83 Unreported, 1972. It concerned a silver dish and ewer (1720), a pair of silver-gilt flagons (1746), a chalice and paten (1746) and a pair of silver -gilt chalices (1649).

84 Unreported, 26 October 1971. It concerned a silver-gilt cup and paten (c1620), a communion cup and cover (1579), a cup (1628), a flagon (1636) and a standing paten (1692).

85 Unreported; two silver flagons c1700.

86 Unreported; two cups and paten (1675), paten (1680), flagon (1680), two alms dishes (1680).

87 Unreported; two silver flagons and chalices (1638), silver dish (1695).

88 Unreported; silver-gilt tankard (1602).

89 [1984] 1 WLR 1363. The sale was authorised to fund a verger, a requirement which was held by the Chancellor to be a financial emergency (p 1365D). Much of the silver, which was not listed in the judgment, was on public display. Two flagons dating from 1610 were acquired by Sir Arthur Gilbert and in 1996 given to the British nation. There are now held by the Victoria and Albert Museum. As far as I am aware, this is the last case on the sale of church plate decided by George Newsom.

90 (1990) 2 Ecc LJ 227; two silver-gilt flagons (1638).

91 Unreported; silver-gilt flagon (1620), tazza (1619), ewer (1619).

92 Unreported; flagon (1839), two chalices and paten (c1883), flagon, chalice and three patens of uncertain date.

93 (2006) 6 Ecc LJ 167.

94 Unreported; Elizabethan flagon.

95 Unreported; flagon, cup and paten (1835), nineteenth-century paten, two pewter collecting plates.

96 Unreported; two-handled cup and stand (1679), two silver cruets (dates not given).

97 Unreported; silver-gilt flagon and paten (1712).

98 Unreported; silver chalice (1575).

99 Unreported; pewter flagon (1766).

100 Unreported; two pairs of silver flagons (1643).

101 (1998) 1 Ecc LJ 5; silver chalice and paten (1621), tankard (1724).

102 Unreported; silver flagon and alms dish (1774), silver chalice and paten (1570).

103 Unreported; two silver flagons (1640).

104 Re St Lawrence, Wootton at para 3.

105 Re St Helen, Brant Broughton [1974] Fam 16 (Court of Arches); re St Michael and all Angels, Withyham [2011] PTSR 1446.

106 Re St Bartholomew, Aldbrough [1990] 3 All ER 440.

107 Re St Nicholas, Porton (unreported); re St Peter, Draycott [2009] Fam 93 (Court of Arches).

108 The collection of armour at the Tower of London may be the oldest museum in England.

109 [2014] WLR (D) 176. The Dean (Charles George QC) sat with McClean QC Ch and Briden Ch.

110 Ibid at para 44. In equating ‘special grounds’ with ‘good and sufficient grounds’ the court misread Tredington. The court also relied upon its judgments in re St Mary the Virgin, Burton Latimer and re St Peter's, Draycott [2009] Fam 93 (a case concerning a Victorian font). It is fair to say that in these cases the two requirements were equated.

111 Ibid at para 51 (where the test is articulated) and para 90 (where it is applied).

112 Unreported (1994) at para 16, cited in re St Lawrence, Wootton at para 53.

113 Re St Lawrence, Wootton at para 52.

114 The Court of Arches specifically disapproved of the adoption of a two-stage approach to special grounds, ie first asking whether the grounds were special and then whether, in the circumstances of the case, they justified the sale.

115 Re St Lawrence, Wootton at para 59. In Burton Latimer the silver which was the subject of the proceedings had been deposited in the Cathedral Treasury at Peterborough.

116 Ibid at para 35.

117 Ibid at para 36. The Court of Arches was concerned to suggest that its approach was not novel (ibid at paras 34–39), and in doing so considered cases involving the disposition of church treasures other than silver, with which this paper is not directly concerned. Whatever its novelty or otherwise, the sequential approach now represents the law. It should, however, be noted that the court stated that in re St Gregory, Tredington a limited sale was not being advanced by the advisory bodies nor was it a viable prospect (ibid at para 38), implying that a limited sale did not occur in that case for this reason. As explained above, this is not the analysis of the present writer. The fact that a sequential test was not established explains how it was that so many sales were sanctioned after the decision in Tredington.

118 Ibid at para 39.

119 Ibid at para 51. See also the strong presumption against works that adversely affect a listed building (see In re St Alkmund's, Duffield [2013] Fam 158 at para 87). Such works are often permitted.

120 Note that if church silver were ever viewed by the Heritage Lottery Fund as a saleable asset, it would form part of its assessment of eligibility for funding.

121 See re St Gregory's, Tredington at p 246F.

122 Re St Lawrence, Wootton at para 19.

123 It may be noted that in re St Peter, Draycott at para 34 (not quoted in Wootton), the Court of Arches had observed ‘the dictum of the deputy dean in In re St Gregory's, Tredington that “Faculties of this kind should seldom if ever be granted without a hearing in open court” no longer carries the weight which it did in past’.

124 SI 2015 No 1568.

125 The CBC in its guidance Church Treasures gives the example of the silver displayed in St Mary's, Woodbridge (protected by alarm, bullet proof glass and CCTV). A heavy duty chest permits the display in St Helen's, Ranworth of the very precious fifteenth century Ranworth Antiphoner.

126 Note that by s 55(1)(d) of the Dioceses, Pastoral and Mission Measure 2007 the CBC has a duty to ‘promote … by means of guidance or otherwise, standards of good practice in relation to the use, care, conservation, repair, planning, design and development of churches', which would not expressly extend to guidance about its stewardship of plate. Guidance given under more general powers would seem to have less authority. The CBC's present guidance in respect of church plate contained in Church Treasures does not grapple with the issue of redundancy. It proceeds by way of endorsement of the judgment in In re St Lawrence, Wootton, albeit the authority of the CBC powerfully reinforces it.

127 It will also be noted that the approach of the Court of Arches in Wootton draws upon the suggestions in the report by the Council for Places of Worship mentioned above (see note 77 and associated text).