Abstract
This chapter provides a brief historical overview of the evolving relationship between Church and State in the centuries leading up to the Reformation, identifying themes that carried on through it, and which continue to influence the contemporary social role of the Church of England. It then turns to consider other frameworks that have come to condition the part played by religious belief: the family unit and the effect of changes in its definition; the evolution of new mediating forums between citizen and State such as collectivism, political ideology, legal rights, the professions and trade unions. It considers the consequences of advances in science and medicine that have probed the frontiers of knowledge, causing sacred verities to give way to secular, and concludes by reflecting on the ever more worldly role of some religious charities. It identifies the factors that have intervened to constrain the traditional role of religious belief and put in play the different strands that now converge to compromise the Church of England. It reflects on the nature of the boundaries between religion, charity and legal rights.
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Notes
- 1.
Quod ecelesia Anglicana libera sit et habeat jura sua integra et libertates suas illæsas.
- 2.
Magna Carta, Clause 1.
- 3.
Also known as the ‘Articles of the Barons’.
- 4.
Jessopp, A. 1885. The coming of the Friars and other historical essays. Whitefish, Montana, USA: Kessinger Publishing.
- 5.
For example, Baldwin the Archbishop of Canterbury accompanied Richard Coeur de Lion on the Third Crusade in 1190.
- 6.
Maitland, F.W. 1898. Roman canon law in the Church of England. London, UK: Methuen, at 17 citing the “Provinciale” of Bishop Lyndwood (1435).
- 7.
The lengthy dispute between Henry II and Archbishop Thomas Becket crystallised with the issue of the Constitutions of Clarendon in 1164 which redefined Church/State relations, restricted ecclesiastical privileges and curbed the power of the ecclesiastical courts. The dispute culminated on the afternoon of 29 December 1170, in Becket’s murder following the King’s provocative suggestions. The death was treated as martyrdom and became a pivotal landmark in relations between the Church in England, the monarchy and the Papacy.
- 8.
John Wycliffe (1330–84) was a philosopher, theologian, lay preacher and translator who taught at Oxford University.
- 9.
See, King Edward’s code promulgated at Andover (c. 963). Also, see, the laws of the West Saxon King Ine (688–694) which directed that “Church-scot is to be given by Martinmass; if anyone does not discharge it, he is liable to 60 shillings and to render the church-scott twelve-fold”, as cited in Brady, J. 1975. Religion and the law of charities in Ireland, 6. Belfast: Northern Ireland Legal Quarterly.
- 10.
See, Whitelock (ed.), English Historical Documents 500–1042, at p.365; as cited in Brady, ibid.
- 11.
See, Brady, J., Religion and the Law of Charities in Ireland, op cit, at p.6.
- 12.
See, Coke, Co.Litt., 2B.
- 13.
Such was the enduring secular hold of mortmain on the adherents of Christianity in this jurisdiction that it was not abolished until the mid-twentieth century by the Mortmain (Repeal of Enactments) Act, 1954.
- 14.
See, Littleton, S., 133; Co.Lit., 93(b).
- 15.
18 Edw. I. c. 1. A statute passed by Edward I which forbade the practice of giving estates ‘for the use of others’ as a device for owners to retain the fee simple. It thereby facilitated the full and permanent transfer of property.
- 16.
See, further, Outhwaite, R.B. 2007. The rise and fall of the English Ecclesiastical Courts, 1500–1860. Cambridge: Cambridge University Press.
- 17.
See, further, Denning, Lord. 1944. The meaning of Ecclesiastical Law. Law Quarterly Review 60: 235.
- 18.
See, for example, the ruling of the Court of the Arches in Breeks v. Woolfrey (1838) 163 English Reports 304 where it was noted that “touching and concerning [the] soul’s health … is the usual style and language of the proceedings of the [ecclesiastical] court”. See, further, Chadwick, O. 1990. The secularisation of the European mind in the 19th century, Canto original series. Cambridge: Cambridge University Press.
- 19.
See Clause 43 which provided:
It shall not be lawful from henceforth to any to give his lands to any religious house and to take the same land again to hold of the same house: nor shall it be lawful to any house of religion to take the lands of any and to have the same of him of whom he received it. If any from henceforth give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee.
- 20.
See, statutes of Henry 111, 1217, of Marlborough 1267, of Edward 1 in 1279 and 1285, Richard 11 in 1391 leading eventually to Poynings Law in 1495.
- 21.
See, for example, Wohl, A.S. (ed.). 1978. The Victorian family: Structure and stresses. London: Croom Helm Ltd.
- 22.
It was the Clandestine Marriages Act 1753 that introduced formal requirements for the ceremony of marriage: publishing of banns; ceremony to be public and conducted in a Church; consent of a minor’s parents to be obtained; and the marriage to be registered.
- 23.
Not until the mid-nineteenth century was marriage so defined in English law when Lord Penzance, in Hyde v. Hyde (1860) LR. 1, P&D 130, declared that a Christian marriage was “the voluntary union for life of one man and one woman, to the exclusion of all others” at p.135 (see further, Chap. 7).
- 24.
Consanguinity being the proximity of relationship derived from blood-links. Affinity being the proximity of relationship derived from marriage.
- 25.
See, Blackstone. 1824. Commentaries on the Law of England, vol 1, 8th ed, 449.
- 26.
A term which implies a breadth, duration and proximity of companionship in which sexual relations may, but need not, play a part. Like most legal aspects of the marital relationship, consortium was usually understood to vest rights in the husband and reciprocal duties in his wife: see, for example, R v. Lister (1721) 1 Stra 478; indeed a husband could not be charged with rape in respect of his wife.
- 27.
For example, the writ of trespass vi et armis de uxore rapta et abducta was available only to a husband.
- 28.
See, for example, R v. Hopley [1860] 2F and F 160.
- 29.
The first statutory acknowledgment of a paternal right to custody was in s.8 of the Tenures abolition Act 1660. Until 1839 the custody of a ‘legitimate’ child vested exclusively in the father. As Bowen LJ explained in Agar-Ellis (1878) 10 Ch D:
The strict common law gave to the father the guardianship of his children during the age of nurture and until the age of discretion. The limit was fixed at fourteen years in the case of a boy and sixteen years in the case of a girl …
- 30.
Until 1929 the minimum age limits for marriage in England were 14 for the male and 12 for the female.
- 31.
A marriage between persons who are within the prohibited degrees of consanguinity (relationships by blood) or affinity (relationships by marriage) is void.
- 32.
Mr Lewkenor’s Case, 13 State Trials 1308: as cited in Cretney, S.M. 2003. Principles of family law, 7th ed, 270. London: Thomson, Sweet & Maxwell.
- 33.
In particular he had no right to custody: see, for example, R v. Moses Soper (1793) 5 Term Rep 278.
- 34.
See, Ingram, M. 1990. Church courts, sex and marriage in England, 1570–1640. Cambridge: Cambridge University Press.
- 35.
See, Poos, L.R. 1995. Sex, lies, and the church courts of pre-reformation England. The Journal of Interdisciplinary History 25(4, Spring): 585–607.
- 36.
See, Williams, R. 2012. Faith in the public square, 20. London: Bloomsbury.
- 37.
The 1874 report of the Royal Commission on Friendly Societies offered support for the new forms of intervention into the circumstances of the poor.
- 38.
Charles Booth (1840–1916), a social researcher noted for his studies into pauperism in London; see, Life and Labour of the People of London (1891–1903).
- 39.
Seebohm Rowntree (1871–1954), noted for studies measuring poverty and analysing its effects in York at the turn of the century; see, further his reports, for example Poverty a Study of Town Life (1901), Poverty and Progress (1936) and Poverty and the Welfare State (1951).
- 40.
See, Hitchcock, T. 1992. Paupers and Preachers: The SPCK and the parochial workhouse movement. In Stilling the grumbling hive: The response to social and economic problems in England, 1689–1750, ed. L. Davison et al., 145–66. Stroud, London: Allen Sutton.
- 41.
See, for example, Gordon, L. 2004. Mary Wollstonecraft: a new genus. London: Little Brown.
- 42.
See, Carpenter, M. Reformatory Schools for the Perishing and Dangerous Classes and for the Prevention of Juvenile Delinquency, published in 1851.
- 43.
Founder member of the Charity Organisation Society; see, Hill, O. 1875. Homes of the London poor. London: Macmillan.
- 44.
See, further, Cadbury, D. 2010. Chocolate wars. London: Harper Press.
- 45.
Organisations set up for the mutual benefit of members have, of course, consistently been refused charitable status: see, for example, Nuffield (Lord) v. Inland Revenue Commissioners (1946) 175 LT 465.
- 46.
See, for example, Mucklejohn, I. 2005. And then there were three: The exceptional story of a remarkable surrogacy family. London, UK: Gibson Square Books Ltd.
- 47.
The term ‘secularism’ was first coined by George Jacob Holyoake (1817–1906).
- 48.
A term used by Baronness Warsi, Britain’s first Muslim cabinet minister and chair of the Conservative Party, in response to the ruling of Ouseley J in NSS v. Bideford Council [2012] EWHC 175 (Admin) when he declared it unconstitutional for Bideford Town Council to continue with its long-standing practice of holding prayers at commencement of their meetings.
- 49.
[2002] 1 FLR 508, at para 112.
- 50.
This wariness is not confined to instances where the Christian religion intrudes on public institutions. The founding of the Islamic Sharia Council in 1982, with its remit to address issues such as marriage breakdown, has also caused controversy. The 85 Sharia ‘courts’ have since processed many thousands of cases and there is concern that they may exercise an intimidating influence on Islamic communities: see, BBC’s Panorama programme at: http://www.familylawweek.co.uk/site.aspx?i=ed112864.
- 51.
See, Oxford Group v. Inland Revenue Commissioners (1949) 2 All E.R. 537 for guidance as to when a purpose cannot be defined as “ancillary and incidental”.
- 52.
See, for example, Brighton Convent of the Blessed Sacrament v. Inland Revenue Commissioners (1933) 18 TC 76, where a convent school that charged admission fees was held to be engaged in commercial trading.
- 53.
See, the Chadwick Report published by the Church of England (March 2012). This declared an aim to establish 200 more Anglican schools over the next 5 years.
- 54.
On 28/09/2001, the UN Security Council unanimously adopted a wide-ranging, comprehensive resolution with steps and strategies to combat international terrorism. Among other things, this resolution: directed all States to prevent and suppress the financing of terrorism, to criminalise the ‘wilful’ provision or collection of funds for such acts and to freeze the funds, assets and economic resources of those involved; and it required all States to ensure that no asylum seeker is granted refugee status until satisfied that such person had not planned, facilitated or participated in the commission of terrorist acts.
- 55.
See, Charity Commission of England and Wales, North London Central Mosque Trust (1 July 2003).
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O’Halloran, K. (2014). Boundaries and Interfaces. In: The Church of England - Charity Law and Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 36. Springer, Cham. https://doi.org/10.1007/978-3-319-04319-7_1
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