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Published online by Cambridge University Press: 12 September 2022
Charities increasingly make up the body politic of the Church of England. They include parochial church councils, diocesan boards of finance and national institutions. By April 2024 every chapter of a cathedral will be required to register as a charity. Faithful parishioners put their collection money in gummed envelopes which call for them to add Gift Aid to their donations. Individual churches run foodbanks, drop-in centres, baby and toddler groups, and a whole range of charitable activities. The general public could be forgiven for thinking that ‘the Church of England’ is a national charity. However, it has not always been the case that the work and mission of the Church of England has been through charities, and for much of its history the Church has remained largely independent of charity law. What are the consequences of increasing reliance on charities and where do the boundaries lie between ecclesiastical and canon law on the one hand and charity law on the other?
1 In particular by the Dissolution of Colleges Acts of 1545 (37 Hen VIII c 4) and 1547 (1 Edw VI c 14).
2 Jones, G, History of the Law of Charity, 1532–1827 (Cambridge, 1969), p 15CrossRefGoogle Scholar.
3 In the medieval period the obligations under a charitable trust were often enforced by the ecclesiastical courts, and even that great Elizabethan Statute of Uses of 1601 provided that ‘neither this Acte nor any thinge therein contained shalbe any way prejudiciall or hurtfull to the Jurisdiccion or Power of the Ordinarie; but that he may lawfullie in everie cause execute and performe the same as thoughe this Acte had never bene had or made.’
4 See in particular Jones, History of the Law of Charity, which is a thorough history.
5 Littleton, T, Litttleton's Tenures in English (London, 1845), para 135Google Scholar.
6 Bracton, Note Book, fol 12, as quoted in F Pollock and F Maitland, The History of English Law before the Time of Edward I, second edition, 2 vols (Cambridge, 1923), vol i, pp 240–251.
7 Ibid, pp 243–244, citing Ramsey Cartulary, i, 159, 160, 255, 256.
8 For the preservation of frankalmoign see Halsbury's Law of England, vol xxiv (Corporations) (2019), para 554.
9 Ie acquired under the Church Property Measure 2018, s 28(1).
10 Ibid, s 32(1).
11 Consecration of Churchyards Act 1867, s 5.
12 The obligation to conduct visitations was evidently by this time an important duty of a bishop, as is illustrated by a letter of Pope Gregory I to a diocesan bishop dated 592, in which he enjoined the bishop to carry out a solemn visitation of certain specified churches in his locality to see that the incumbents of the churches lived in accordance with the canons: P M Smith, ‘Points of Law and Practice Concerning Ecclesiastical Visitations’, (1991) 2:9 Ecclesiastical Law Journal 189–212 at 190.
13 R Burn, Ecclesiastical Law, ninth edition, 4 vols (London, 1842), vol iv, p 12.
14 A Hamilton Thompson (ed), Visitations of Religious Houses in the Diocese of Lincoln, 2 vols (Horncastle, 1918), vol ii, pp 65–67 (translated from the Latin).
15 Churchwardens Measure 2001, s 2.
16 Helmholz, R H, ‘The Law of Charity and the English Ecclesiastical Courts’ in Hoskin, P, Brooke, C and Dobson, B (eds), The Foundations of Medieval English Ecclesiastical History (Woodbridge, 2005), pp 111–123 at p 112Google Scholar.
17 Ibid, p 113.
18 Jones, History of the Law of Charity, p 4.
19 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531. See Pember v Kington (Inhabitants) (1639) Duke 82 for the authority that the maintenance of preaching ministers is charitable.
20 Local Government Act 1894, s 5.
21 This was to include the distribution of offertories or other collections made in any church: see ibid, s 75.
22 Local Government Act 1894, s 75(2).
23 The Queen Anne's Bounty Act 1703 (2 & 3 Anne c 20).
24 Ecclesiastical Commissioners Act 1836.
25 Vaughan, D J (ed), The Official Report of the Church Congress Held at Leicester … 1880 (London, 1881), p 619Google Scholar.
26 Ibid, p 620.
27 As recounted by the Archdeacon of Ely, recorded in ibid, pp 633–634.
28 Ibid, p 622.
29 Ibid, p 623.
30 13 & 14 Vict c 28. This Act had been passed for rendering more simple and effectual the law by which dissenting churches hold property, but which appeared to be limited to buildings used for religious worship or education, or for rooms for the meeting or transaction of the business of a society or congregation or body of persons to whom they belong.
31 Church Times, 24 May 1895, p 583.
32 Buchanan, A, A Guide to Archival Accessions at the Borthwick Institute, 1981–1996 (York, 1997), p 18Google Scholar.
33 Previously the law had thrown up many obstacles, from at least the time of Magna Carta, to prevent land from being held in ‘mortmain’, ie by the church or a charity, and thereby lost from the feudal system (the original concern) or thereby disinheriting the heir (the later concern).
34 A-G v Brown (1818) 1 Swan 265 at 291 per Lord Eldon LC; A-G v Compton (1842) 1 Y & C Ch Cas 417 at 427 per Knight Bruce V-C.
35 The modern statute on perpetuities is the Perpetuities and Accumulations Act 2009. Under section 18 it is expressly stated that the Act does not affect the rule of law which limits the duration of non-charitable purpose trusts. In Re Bowen [1893] 2 Ch 494 at 495 it was held that a charitable trust may be made to enure for any period which the author of the trust may desire.
36 See for example the restrictions on disposition imposed by the Charities Act 2011, ss 117–124.
37 Until the enactment of section 180 of the Law of Property Act 1925, a corporation sole (eg bishop, incumbent) could not hold chattels or any other kind of personal property in succession (Grant 629; see also Fulward's Case 4 Rep 64 b).
38 As Burn, Ecclesiastical Law, vol ii, p 297, says: ‘this was provided by the wisdom of the law, for that the parson and vicar have the cure of souls, and are bound to celebrate divine service, and administer the sacraments: and therefore no act of the predecessor shall make a discontinuance, to take away the entry of the successor, and to drive him to a real action, whereby he might be destitute in the mean time. 1 Inst. 341’.
39 See for example the Canons of Stephen in J Bullard et al (eds), Lyndwood's Provinciale (London, 1929), pp 59–60.
40 Charity property can also be consecrated: see, for example, the hospital chapel in Sutton v Bowden [1913] 1 Ch 518.
41 [1949] 1 All ER 848.
42 Blakeney, M, ‘Sequestered piety and charity: a comparative analysis’, (1981) 2:3 Journal of Legal History 207–226CrossRefGoogle Scholar.
43 Although the registration of cathedral chapters with the Charity Commission, as required by the Cathedrals Measure 2021, will alter this position.
44 Parochial Church Councils (Powers) Measure 1956, s 2(2)(a).
45 Parochial Church Councils (Powers) Measure 1956, s 4(1).
46 Such as in the choice of which authorised form of service is to be used, otherwise than in the case of occasional offices. The minister and PCC are to act jointly: Revised Canons Ecclesiastical, Canon B3.
47 Parochial Church Councils (Powers) Measure 1956, s 2(2)(a).
48 There is a separate power under section 47 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 for the archdeacon to inspect the fabric of a church and relevant articles in a church for which the PCC is responsible, but that is a more modern power (formerly in the Inspection of Churches Measure 1955). It is not part of the visitorial power.
49 Charities Act 2011, s 185, as modified by the provisions of the Parochial Church Councils (Powers) Measure 1956, s 7A, as inserted by the Church of England (Miscellaneous Provisions) Measure 2018, s 14(1).
50 See GS 2222, Church of England, Mission in Revision: A review of the Mission and Pastoral Measure 2011 (June 2021).
51 Petchey, P, ‘Hidden treasure: the Church of England's stewardship of its silver plate’, (2018) 20:1 EccLJ 16–50Google Scholar.
52 Doe, N, The Legal Architecture of English Cathedrals (London, 2017)CrossRefGoogle Scholar.
53 Churchwardens Measure 2001, s 2; Charities Act 2001, ss 178–184A.
54 Clergy Discipline Measure 2003, s 30.
55 Charity Commission, ‘Decision Charity Inquiry: CAWRM Ltd’ (23 October 2020), <https://www.gov.uk/government/publications/charity-inquiry-cawrm-ltd/charity-inquiry-cawrm-ltd>, accessed 15 June 2022.
56 The issue of justiciability in religious charities was considered by the Supreme Court in Shergill and Others v Khaira and Others [2015] AC 359.