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• Preface to the First Edition
• Preface to the Second Edition
• Introduction to the Second Edition
• Aim of Introduction
• (a): Legislative Opinion At the End of the Nineteenth Century
• (b): Course of Legislation From Beginning of Twentieth Century
• (c): the Main Current of Legislative Opinion From the Beginning of the Twentieth Century
• (d): Counter-currents and Cross-currents of Legislative Opinion From the Beginning of the Twentieth Century 2
• Conclusions
• Lectures On the Relation Between Law and Public Opinion In England
• Lecture I: The Relation Between Law and Public Opinion
• Lecture II: Characteristics of Law-making Opinion In England
• Lecture III: Democracy and Legislation
• Lecture IV: The Three Main Currents of Public Opinion
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800-1830)
• Lecture VI: The Period of Benthamism Or Individualism 1
• Lecture VII: The Growth of Collectivism
• Lecture VIII: The Period of Collectivism
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• Lecture XI: Judicial Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• Appendix
• Note I: The Right of Association
• Note II: The Ecclesiastical Commission
• Note III: University Tests
• Note IV: Judge-made Law
• A Selection of Works On Politics

LECTURE X

COUNTER-CURRENTS AND CROSS-CURRENTS OF LEGISLATIVE OPINION

Lecture X.We have hitherto traced the connection between the development of English law and different dominant currents of opinion.1 To complete our survey of the relation between law and opinion, we must now take into account the way in which the dominant legislative faith, and therefore the legislation, of a particular time may be counteracted or modified either by the existence of strong counter-currents or cross-currents of opinion,2 or by the difference between parliamentary and judicial3 legislation.

Concerning counter-currents little need here be said. The topic has been amply illustrated in the foregoing pages. The story of Benthamite liberalism is specially instructive; the increasing force of liberalism was long held in check by the survival of old toryism; the authority of liberalism, when it had become the legislative faith of the day, was diminished by the gradually rising current of collectivism.

To the effect produced by cross-currents of opinion which, as already noted,1 deflect the action of the reigning legislative faith from its natural course, little attention has been directed in these lectures, yet the topic deserves careful consideration. The influence of such cross-currents, operating as it does in an indirect and subtle manner, often escapes notice, and is always somewhat hard to appreciate. The easiest method whereby to render the whole matter intelligible is to trace out the way in which such a cross-current has told upon the growth of some particular part of the law. For this purpose no branch of the law of England better repays examination than the ecclesiastical legislation of the years which extend from the era of the Reform Act (1830-32) to the close of the nineteenth century; for this legislation is affected at every turn on the one hand by the liberalism of the time, which aims at the establishment of religious equality, i.e. at the abolition of all political or civil privileges or disabilities dependent upon religious belief, and on the other hand by the cross-current of clerical, or rather ecclesiastical, opinion, which desires to maintain the rights or privileges of the Established Church, and demands deference for the convictions or the sentiments of the clergy and of churchmen. To see that this is so, let us, in regard to matters which can be termed ecclesiastical, in a wide sense of that word, examine first the course—that is, both the current and the cross-current, of legislative opinion from 1830 to 1900, and next the legislation to which this course of opinion has in fact given rise.

A.

The Course of Legislative Opinion

In 1832 the passing of the Reform Act seemed to prove that any institution, however venerable, might be called upon to show cause for its existence, and, in default of a popular verdict in its favour, would undergo drastic amendment or revolutionary destruction. In these circumstances no one among all the ancient institutions of the country was, to outward appearance, more open to attack, and less capable of defence, than the United Church of England and Ireland.1

The policy of the popular leaders, whether Whigs or Benthamites, was essentially secular and anticlerical.2 The Whigs had always been the cool friends, if not the foes, of the clergy, and had found their most constant adherents among Dissenters. The doctrines of Bentham clearly pointed towards Disestablishment. In 1832 popular feeling identified zeal for the Church with opposition to reform, and considered bishops and parsons the natural allies of boroughmongers and Tories. At the moment when the vast majority of the electors demanded parliamentary reform with passionate enthusiasm, no class was the object of more odium than the bench of Bishops. Proposals were once and again brought before Parliament to expel them from the House of Lords. Whatever, again, might be the other effects of the Reform Act, it assuredly gave new power to what was then termed the Dissenting interest; at the meeting of the first reformed Parliament it seemed for a moment possible that Dissenters might exercise political predominance,1 and the rule of Nonconformists could mean nothing less than a revolution in the position of the Church. These things, it may be said, were merely the appearances of the moment, but any man of sense must have perceived that the Church Establishment, whilst open to the charges of sinecurism and the like, which might be brought against the civil administration of the time, exhibited two special weaknesses of its own which both provoked assault by and promised success to its assailants: The National Church was not the Church of the whole nation; the privileges of the Establishment were in many cases the patent grievances of the laity.

The National Church was not the Church of the whole nation.

Protestant Nonconformists whose ancestors had been thrust out of the Church by the legislation of 1662—Wesleyans who were originally ardent Churchmen, but had separated from the Church because its leaders had not known how either to control or to turn to good use the fervour or fanaticism of passionate religious conviction—the Roman Catholic gentry, who, at the end of the eighteenth century, formed the most conservative part of the whole community—Unitarians who till 1813 had not enjoyed the protection of the Toleration Act, and, under a sense of bitter oppression, had sympathised with French Revolutionists—philosophic sceptics, such as Bentham and James Mill, who contemned and distrusted every kind of ecclesiastical power—each and all stood, either openly or secretly, outside the pale, and hostile to the pretensions of the Established Church.

The privileges of the Establishment were, to large bodies of Englishmen, intolerable grievances.

The marriage laws, which forbade the celebration of marriage otherwise than in accordance with the rites of the Church of England, outraged the self-respect and in some cases offended the conscience of Nonconformists; the tithes, and, above all, the mode of their collection, were a hindrance to the proper cultivation of the land, and made the parson of the parish, in the eyes of farmers who had no objection to the doctrine of the Church, stand in the position of an odious and oppressive creditor.

In these circumstances observers of the most different characters and of opposite opinions felt assured that the Church was in danger. In 1833 Macaulay wrote that in case the House of Lords should venture on a vital matter to oppose the Ministry, he “would not give sixpence for a coronet or a penny for a mitre”1 ; and Dr. Arnold was convinced, as is clearly shown by his pamphlet on the Principles of Church Reform,2 that the Church Establishment was in extreme peril. In 1834 the author of the first of the Tracts for the Times anticipates for the Church and its leaders not only disestablishment and disendowment, but violent persecution. He proclaims to every clergyman throughout England that, “black event as it would be for the country, yet (as far as they [the Bishops] are concerned) we could not wish them a more blessed termination of their course than the spoiling of their goods, and martyrdom.”3 In this language there lurks a touch of irony, yet Newman was far too earnest a zealot to threaten perils which he knew to be unreal, and far too skilful a rhetorician to betray fears which his audience would hold to be ridiculous. When he published his appeal, Ad Clerum, thousands of churchmen believed that the Church of England was threatened with spoliation, ruin, and persecution; and men of the calmest judgment assuredly anticipated, whether with regret or with satisfaction, a revolution in the position of the Established Church. Between 1830 and 1836, then, it was assuredly no unreasonable forecast that the future of the Church of England might be summed up in the formula, “either comprehension or disestablishment”; the Church must, men thought, either embrace within its limits the whole, or nearly the whole, of the nation, or cease to be the National Church. No one could at that time have believed that the ecclesiastical legislation of the nineteenth century would fail to touch the foundations of the Establishment, or would pay any deference to the convictions or to the sentiment of the clergy. The experience of more than seventy years has given the lie to reasonable anticipations. The country has, since 1832, been represented first by a middle class Parliament, and next by a more or less democratic Parliament, yet has not sanctioned either comprehension or disestablishment. In all ecclesiastical matters Englishmen have favoured a policy of conservatism combined with concession.1 Conservatism has here meant deference for the convictions, sentiments, or prejudices of churchmen, whenever respect for ecclesiastical feeling did not cause palpable inconvenience to laymen, or was not inconsistent with obedience to the clearly expressed will of the nation. Concession has meant readiness to sacrifice the privileges or defy the principles dear to churchmen, whenever the maintenance thereof was inconsistent with the abolition of patent abuses, the removal of grievances, or the carrying out of reforms, demanded by classes sufficiently powerful to represent the voice or to command the acquiescence of the country.

What have been the circumstances that have given rise to this unforeseen and apparently paradoxical policy of conservatism and concession? To put the same inquiry in another shape: What have been the conditions of opinion which, in the sphere of ecclesiastical legislation, have prevented the dominant liberalism of the day from acting with anything like its full force, and have in many instances rendered it subordinate to the strong cross-current of clerical or Church opinion?

These circumstances or conditions were, speaking broadly, the absence of any definite programme of Church reform commanding popular support; and the unsuspected strength of the hold possessed by the Church of England on the affections of the nation.

The Whigs certainly failed to produce any clear scheme of ecclesiastical reform. By no two men are they more fairly represented than by Sydney Smith and Macaulay. Neither of them was a zealous churchman, neither of them entertained any respect for clerical opinion or prejudice, but neither of them advocated any scheme of ecclesiastical reform. If Sydney Smith had believed that any extensive change in the position of the Establishment was desirable, he would assuredly have spoken out his mind. He had shocked the religious world and, as he no doubt well knew, had ruined his chance of high preferment by his expressed distrust and dislike of English missionaries and the missionary spirit. He perceived the failings and hated the cant of zealots, and in no way recognised their virtues. Religious enthusiasm meant to him, as to most eighteenth-century reformers, nothing but intolerance and ignorance. Any change which might give freer play in the Church to religious fervour or fanaticism was hateful to him. Hence, as regards ecclesiastical affairs, he was simply a Tory, and was indeed more averse to amendments in the administration of the Established Church than were intelligent Conservatives. Inequalities in the incomes of bishops or of clergymen were, he argued, a benefit to the public; the offer of a few large prizes was the cheapest way of remunerating clerical success, and—a far more important consideration in Sydney Smith’s eyes than economy—constituted the best means for tempting scholars and gentlemen to take orders, and for excluding ignorant enthusiasts from the ranks of the clergy. “Beware of enthusiasm and cant, and leave the Establishment as far as possible alone.” Thus may be summed up the only ecclesiastical policy suggested by the most keen-sighted and the ablest exponent of Whig doctrine.1 Macaulay was by temperament and training opposed to ecclesiastical pretensions, and, in accordance with the historical traditions of the Whigs, might, one would have supposed, have favoured some scheme for the comprehension of orthodox Dissenters within the National Church, but his name as a statesman cannot be connected with any policy of this description. His celebrated review, Gladstone on Church and State, leads to the practical conclusions that the ecclesiastical should not be allowed to interfere with the civil power, and that every man should enjoy equal political and civil rights, irrespective of his religious or non-religious convictions. This was the last word of Whig ecclesiastical statesmanship. The Whig leaders indeed must, as practical politicians, have felt instinctively that the day for a scheme of comprehension was past.1 Immediately after the Revolution of 1688 it had been found impossible to secure for Dissenters more than toleration. Since that date, the rise both of Unitarianism 2 and of Wesleyanism had changed the whole position of Nonconformists and their relation to the Established Church, and had, though in different ways, indefinitely increased the obstacles to a policy of comprehension. The Whigs of 1832 possessed, then, no definite scheme of Church reform.

Nor did the Benthamites stand in a stronger position than the Whigs. The philosophic Radicals held all ecclesiastical establishments to be at best of dubious utility, and expected them to vanish away with the progress of enlightenment. In all matters regarding the Church they were utterly at sea. They were stone-blind to the real condition of opinion in England. James Mill in 1835 published a scheme of Church reform. This programme is the work of a hard-headed Scotchman who had enjoyed considerable experience of the world, had studied theology in order to become a minister of, and had for a short time been a preacher in, the Church of Scotland,1 yet his scheme reads almost like a grim joke, and was certainly far less applicable to the actual state of England than the proposal, already put forward by some Dissenters, to sever the connection between Church and State. For James Mill propounded a plan which may fairly be described as a proposal for the transformation of the Church of England into a national Mechanics’ Institute, devoted to the propagation of Utilitarian doctrine. The Establishment, as it then existed, did nothing, he held, but harm; the creeds, the sermons, the Sunday services, prayer itself, were either useless or noxious. But, after all, as things stood, some use, he hoped, might be found for the clergy. When converted to Benthamism they might become salutary teachers of utilitarianism.

“The work of the clergy would thus consist in supplying all possible inducements to good conduct. No general rules could be given for the work, but tests might be applied for results. Such would be—premiums for the minimum of crimes, of law-suits, of pauperism, of ill-educated children. The assembling of all the families on the Sunday, clean and well-dressed, has an ameliorating effect. Besides addresses of a purely moral kind, instruction in science and useful knowledge would be of great service. Even branches of political science might be introduced, such as political economy and the conditions of good government. Some of the elements of jurisprudence would be valuable—to teach the maxims of justice and the theory of protection of rights.

“These would be the more serious occupations of the day of rest. There should also be social amusements of a mild character, such as to promote cheerfulness rather than profuse merriment. Sports involving bodily strength are not well adapted to promote brotherly feelings; their encouragement in antiquity had in view the urgency of war. Music and dancing would be important. It would be desirable to invent dances representing parental, filial, and fraternal affections, and to avoid such as slide into lasciviousness, which the author is always anxious to repress. Quiet and gentle motions, with an exhibition of grace, are what would be desired. To keep everything within the bounds of decency, the parishioners would elect a master and a mistress of ceremonies, and support their authority. A conjoint meal on Sunday would have the happiest effects, being a renewal of the Agapai—love feasts—of the early Christians; but with the exclusion of intoxicating liquors.”1

This was the kind of reform advocated by the ablest among the Benthamites, whom his son, and doubtless other admiring pupils, mistook for a statesman. The publication of his programme in the London Review damaged the circulation of that periodical. To a modern critic it hopelessly ruins the reputation for statesmanship of the philosophic Radicals. It betrays their fundamental weakness. In ecclesiastical affairs they possessed neither insight not foresight; they did not understand the England in which they lived, they did not foresee the England of the immediate future. James Mill published his scheme of Church reform in 1835. In 1834 had appeared the first of the Tracts for the Times, which as regards the public opened the Oxford High Church movement.2

Although men of piety, and of public spirit, in all denominations, were profoundly aware of defects in the Establishment, and though many Dissenters felt certain privileges of the Church to be oppressive, the cause of Church reform did not at this time command popular support. James Mill’s proposals were no more acceptable to Dissenting ministers than to clergymen. The demand for Disestablishment, though formulated at least as early as 1834, did not even among Nonconformists obtain any wide favour. The Established Church, if not highly esteemed, was not hated either by Whigs or by Radicals. Dr. Arnold, who in 1832 had believed that Disestablishment and Disendowment were immediately at hand, was prepared in 1840 to acknowledge his error.1 Englishmen, after their manner, wished to amend the obvious faults of an existing institution, and were eager to get rid of immediate and pressing grievances, but cared nothing for the assertion of general principles.

Even in 1832 the Church, though suffering from transitory unpopularity, possessed a source of untold strength in its recognition as the Church of the nation.

The Bishops were the object of violent attack, but they were reviled, not because they were prelates, but because they were Tories. Had they seen their way to advocate parliamentary reform, the episcopal bench would have become the most popular part of the House of Lords. The Church Establishment was full of abuses, but these defects did not excite indignation among the mass of the people. The easygoing parsons of the old school were not, except when they pressed too hard for tithes, disliked by their parishioners. Lax discharge of clerical duty by a rector or vicar, who might be described as a squire who wore a white tie, excited little attention and less censure. The new fervour and the moral severity of an Evangelical clergyman occasionally aroused opposition.1 But moral worth always with Englishmen gains respect, and the religious energy of the Evangelicals, after all, gave increased dignity and weight to the clergy. Low Church doctrine, moreover, combined with the prevalent dread of French infidelity, and with the traditional fear of Popery, created a bond of sympathy between the most religious of the clergy and the most religious among orthodox Dissenters. At no time since 1662 has there been, it may be conjectured, more community of feeling between the clergy of the Established Church and Nonconformist ministers than during the last quarter of the eighteenth and the first quarter of the nineteenth century. At that period Evangelical clergymen, occasionally at any rate, preached in Dissenting chapels; community of religious conviction nearly, it seems, broke down the barriers which divided members of the Church from Dissenters.1 However this may be, the Established Church had been at no time during the eighteenth century unpopular with the body of the people. It was the High Churchmanship of Sacheverell which in 1710 made him the hero both of the gentry and of the mob. In 1791 the people of Birmingham were as ready to destroy Dissenting chapels, and to burn down the houses of Priestley and other democrats who toasted the sovereignty of the people as to shout “Church and King for ever.” In 1794 the villagers of Lavenham proved their loyalty to the Church by the attempt to destroy the home of Isaac Taylor, the most estimable and religious of independent ministers.

“The Revolution in France,” writes his daughter Mrs. Gilbert,1 “had [in 1794] produced, in England, universal ferment, and with it, fear. Parties in every nook and corner of the country bristled into enmity, and the Dissenters, always regarded as the friends of liberty, fell under the fury of toryism, exploding from the corrupt under-masses of what, in many places, was an all but heathen population. ‘No Press, no Press,’ meaning no Presbyterians, was the watchword of even our quiet town. Troops of ill-disposed, disorderly people often paraded the streets with this hue-and-cry, halting, especially, at the houses of known and leading Dissenters. On one occasion, as has been related, both in my sister’s Life and in my brother’s Recollections, our house was only saved from wreck by the appearance of our clerical neighbour, Mr. Cooke, at his door, with a request to the vagabond concourse to pass on, but the credit of which interference he entirely disclaimed to my father when he went to thank him the next day, coolly giving as his reason that Mrs. Cooke’s sister was unwell at the time, and the disturbance might have been injurious to her.”2

The Established Church, in short, though not coextensive with the people of England, was, even in 1832, felt to be the National Church in a sense in which no other religious body could claim to be the representative of the nation.

If the clergy were, during the contest over the Reform Bill, regarded with suspicion as Tories, neither then nor at any other time since the Restoration has Dissent commanded any general popularity whatever. During the eighteenth century Dissenters suffered under the tradition of Puritanic severity and hypocrisy. In 1832 Dissent was connected in public opinion with vulgarity and fanaticism. Novels, it has been well said, never lie; they always reflect the features of the time in which they were written. Now it is easy enough to find in the literature of English fiction more or less favourable pictures of the clergy. The Vicar of Wakefield has been laughed at and loved by one generation of Englishmen after another. Miss Austen’s young clergymen would not satisfy Miss Yonge’s ideal of clerical zeal; but they are well-meaning, kindly young fellows, who no doubt were admired by Miss Austen’s heroines and Miss Austen’s readers. They certainly were not persons at all likely to excite any hostility among good-natured Englishmen. Modern novels are almost without exception friendly in their tone towards the Established Church, and teem with clerical heroes. Contrast the treatment—in the main the grossly unfair treatment—which Dissenting ministers have till fifty or sixty years ago received at the hands of novel-writers. Warren’s1Ten Thousand a Year tells us how Dissenters were regarded by a vulgar but very effective Tory satirist of 1839. The meanest character in a novel which abounds with vulgar characters vulgarly caricatured, is a Dissenter who ends his career as an agitator against Church rates, whilst the gentleman-like virtues of the Tory rector are made the object of unctuous admiration. The Shepherd of the Pickwick Papers and the Chadband of Bleak House are caricatures of Dissenting vulgarity and cant drawn by a man of genius who began life as a Benthamite Liberal, who at no period of his career believed himself to be a Tory, and who was the most widely read novelist of his day.1

The Church Establishment, further, if in 1832 it was strong both in its own inherent strength and in the weakness of its opponents, assuredly obtained, for some time at any rate, a great increase of power from the High Church movement. With the religious side of this movement these lectures have no concern; it must here be regarded simply as a current of opinion which enhanced the political authority of the Established Church. It was from this point of view a most successful effort to impress upon Churchmen, and especially upon clergymen, the belief that the very existence of the Established Church was in peril, to inspire clerical convictions with new life, and to place Church opinion in direct opposition to the liberalism which undermined the basis of ecclesiastical authority. Newman’s appeal, Ad Clerum—the first of the Tracts for the Times—contains the gist of the whole matter. The clergy are warned that they may any day be deprived of the advantages which accrue to them from their connection with the State; they cannot rely upon their wealth or upon the dignity of their position. If they are not to sink to the level of Dissenting ministers, they must trust in some source of power which the State cannot touch. They must remember that they, and they only, are in England the representatives of the Apostles; they must magnify their office and glory in their special authority.

“Therefore, my dear Brethren,” writes Newman, “act up to your professions. Let it not be said that you have neglected a gift; for if you have the Spirit of the Apostles on you, surely this is a great gift. ‘Stir up the gift of God which is in you.’ Make much of it. Show your value of it. Keep it before your minds as an honourable badge, far higher than that secular respectability, or cultivation, or polish, or learning, or rank, which gives you a hearing with the many. Tell them of your gift. The times will soon drive you to do this, if you mean to be still anything. But wait not for the times. Do not be compelled, by the world’s forsaking you, to recur as if unwillingly to the high source of your authority. Speak out now, before you are forced, both as glorying in your privilege, and to ensure your rightful honour from your people. A notion has gone abroad, that they can take away your power. They think they have given and can take it away. They think it lies in the Church property, and they know that they have politically the power to confiscate that property. They have been deluded into a notion that present palpable usefulness, produceable results, acceptableness to your flocks, that these and such like are the tests of your Divine commission. Enlighten them in this matter. Exalt our Holy Fathers, the Bishops, as the Representatives of the Apostles, and the Angels of the Churches; and magnify your office, as being ordained by them to take part in their Ministry.”1

To imagine that Newman’s appeal aimed at a political, rather than a religious, object would be the height of unfairness, no less than of absurdity; but his manifesto, and the writings and the action of the Tractarian leaders, had assuredly, in the long-run, a most important political result. The High Church movement reinvigorated the faith of the clergy in their own high authority; it disciplined them for political no less than for ecclesiastical conflicts. If youthful Radicals, such as John Sterling, could ask whether the Church had not in every parish its black dragoon, we may feel well assured that these isolated soldiers became for the moment tenfold more powerful when brigaded into regiments and trained to fight as defenders of the Church. Newman and his allies created such a Church party as had not existed in England since the days of the Stuarts. This was an achievement for which the Evangelicals were not qualified. Their leaders exercised great influence, they in the main supported the Tory governments of the day. But the authority of the Evangelical clergy depended upon their doctrine and upon their zeal, not upon their clerical character. They were many of them in close sympathy with Dissenters. The Evangelicals were, at the time when they were most powerful in the religious world of England, guided at least as much by laymen as by clergymen. The so-called “Clapham sect” consisted to a great extent of men who were not in orders. The authority of Wilberforce was as great as the authority of Simeon. The Evangelicals were indeed churchmen, but since their strength did not lie in their churchmanship, it was impossible for them to form an ecclesiastical party such as has been the outcome of the High Church movement. The High Churchmen of 1834 were the leaders—in many cases, no doubt, unconsciously—of an assault from the side of the Church upon individualism,1 and represented the intellectual and moral reaction against the reasonableness or the rationalism of the eighteenth century. Thus the course of events and of opinion since 1834 has assuredly, from some points of view, strengthened the position of the Established Church. The expansion, or transformation, of the High Churchmanship, which was the peculiar creed of a Church party, into the Anglicanism which at this moment apparently characterises the general body of the clergy, and may be described as the faith of the modern Church of England, has welded the clergy and their adherents into a homogeneous body which can exert considerable political power in defence of the interests or the convictions of churchmen. The same change has also more or less dissociated zealous churchmanship from Tory principles. The advance of democracy has transferred political predominance from the ten-pound householders, among whom lay the strength of the Dissenting interest, to the working classes, who, so far at any rate as they are represented by the artisans, are seemingly indifferent to the religious questions which divide High Churchmen from Low Churchmen, or Churchmen from Dissenters. The body of wage-earners may not read the reports of a Church congress, but there is no reason to suppose that they subscribe largely to the funds of the Liberation Society. Indifference tells in favour of the Established Church as of other established institutions. Opposition, lastly, to individualism constitutes a genuine, if as yet unrecognised, bond between clericalism and collectivism. No doubt there is another side to the picture. The changes of ecclesiastical opinion since 1834 have, in some respects, widened the separation between the convictions of the clergy and the convictions of the laity. All that need here be insisted upon is that, from some points of view, the political, and therefore the legislative power of the Established Church has been increased; in any case it has been for seventy years and more a power which every politician has been compelled to take into account.1

Since 1832 not an Act of Parliament directly or indirectly affecting the Church has been passed which does not bear traces of the influence exerted by ecclesiastical opinion.

From this date onwards the conflict between the dominant liberalism of the day and clerical or ecclesiastical opinion made the political position a strange one. The Established Church, as the Whigs soon found, was not the weakest, but one among the strongest of existing institutions. The attempt to deal, in the most moderate manner, with the patent defects of the Church Establishment in Ireland shattered the Reform Ministry. Within two years after the passing of the Reform Act the Whig Premier gave a pledge not to sanction attacks upon the Church. To open English universities to Dissenters was an impossibility; to provide Dissenters with anything like a real university of their own overtasked the power of the Ministry. The election of 1834 showed that the tide of public opinion no longer flowed strongly in favour of reform, but it also showed that the nation demanded the removal of those defects of the Church Establishment which were condemned by all serious churchmen and all intelligent Conservatives. For this work Peel was as ready as any Whig Premier. The creation of the Ecclesiastical Commission and all the reforms it involved were made possible because in this matter the Whig Ministry of 1836 was supported by the Bishops and by the Conservative Opposition.

Gradually the necessary, or at any rate the easiest, line of action became clear. The fundamentals of the Establishment must be left untouched; patent abuses which shocked the dominant opinion of the day, or grievances which irritated powerful classes, must be removed, but even the most salutary reforms might be long delayed and tempered or curtailed out of deference to the principles or the sentiment of Churchmen. Here we have the policy of conservatism combined with concession which has coloured the whole of modern ecclesiastical legislation.

B.

The Actual Course of Ecclesiastical Legislation

Note first its essential conservatism. Parliament has in no way altered the doctrine or extended the boundaries of the Church of England.1 Nonconformists who stood outside the National Church in 1832 have not been brought within its limits.

Note next the extent of the concessions gradually made to the permanent demand for reform, and note, at the same time, that each concession to liberalism has been tempered by deference for ecclesiastical opinion.

The demand for reform took two shapes. It was either a demand for the amendment of abuses within the Established Church, i.e. for internal reform, or a demand for the removal of grievances connected with the Establishment, but which were mainly felt by persons not belonging to the Established Church, i.e. for external reform.

As to internal reform.—Abuses which shocked even zealous Churchmen were in 1835 made patent to the whole nation by the Report of the Commissioners appointed to inquire into the financial condition of the Establishment. The state of things thus revealed has been well described by a judicious writer.

“The income of the Episcopate was found sufficient to provide, on an average, £6000 a year to each see. But how was this distributed? So as to give over £19,000 a year apiece to the Archbishop of Canterbury and the Bishop of Durham; over £11,000 a year to the Archbishop of York, and to each of the Bishops of London, Winchester, and Ely; while Rochester had to put up with less than £1500, and Llandaff with but £900 a year. The revenues of the cathedrals and collegiate churches were on such a scale that the Commissioners had no hesitation in reporting that the objects of those institutions might be fully secured and continued, and their efficiency maintained, consistently with a considerable reduction of their revenues, a portion of which should be appropriated towards making a better provision for the cure of souls. The deficiency of church accommodation in the big towns, and the dearth of clergy, caused almost a denial of religious instruction to the population of many parishes, so far, at least, as the State Church was concerned. In four parishes of London and the suburbs, containing over 160,000 persons, there was church accommodation for little over 8000, while in the same district there were but eleven clergymen; and this notwithstanding all that had been done by private generosity and by Act of Parliament to increase the number of churches and chapels and to augment benefices throughout the kingdom. In many parishes the income was too small to support a clergyman, so that the work was often done by the incumbent of another parish, thus giving rise to another evil, that of non-residence and the holding of a plurality of livings by one clergyman. Nearly 300 livings were found to be of less value than £50 a year, rather more than 2000 less than £100, and about 3500 less than £150, and in many of these incumbencies there was no house for the incumbent. At the other end of the scale were nearly 200 livings enjoying an income exceeding £1000 a year, the most valuable being that of Doddington, in the diocese of Ely, where, owing to the reclamation of fen land, the tithe had enormously increased.”1

Add to this that the means of enforcing discipline upon the clergy, and especially of removing from the cure of souls men obviously unfit to discharge clerical duty, were wanting, or at any rate were grossly inadequate. Non-residence, sinecurism, and pluralism had at the same time, in part at any rate from changes in circumstances for which no man was morally responsible, come to pervade the whole Church Establishment, — and this state of things existed at a time when, for at least fifty years, the standard of clerical duty had been gradually rising at least as much among the clergy as among the laity of England. The need for reform was urgent; it was met by several measures.

Of these the chief were the Ecclesiastical Commissioners Acts, 1836 and 1840.1 This legislation,2 if we dismiss from our view all minor details, is marked by two leading features:—

1. It is founded on the principle, then unknown to English law, that the property of bishops and chapters ought to be considered the property of the Church as a sort of quasi-corporation, and ought to be employed for the benefit of the Church as a whole.3 This principle was in 1836 a novelty. Historically, the Church of England has never been a corporation, nor has it ever in strictness been the owner of any property;4 the so-called wealth of the Church has been the wealth of bishops, deans, chapters, and other ecclesiastical corporations, of which the Church as an establishment is composed.

2. It gives effect to this new principle by the creation of a new and perpetual corporation, namely, the Ecclesiastical Commissioners for England. The functions of this corporation were to hold as trustee for the Church at large funds derived from the surplus1 revenue of bishops and chapters, and, in accordance with powers given by Act of Parliament, to carry out various necessary reforms. Of these reforms the earliest was the provision of more or less fixed, though not always equal, incomes for bishops; combined with such an equalisation of episcopal incomes as might provide for most bishops a yearly income of from £4000 to £5000.

This legislation has produced immense results. It has fixed the incomes of archbishops and bishops; it has, while making due allowance for the greater dignity and importance, and for the peculiar circumstances of certain sees, e.g. the archbishopric of Canterbury, and the see of London, more or less equalised the incomes of other bishops; it has suppressed sinecures and non-residentiary offices in cathedrals, as well as reduced the number of residentiary canons; it has settled the maximum incomes for deans and canons; it has transferred the surplus estates and revenues resulting from all these transactions to the Commissioners to be applied by them to the augmentation of poor benefices, to the endowment of new ones, and otherwise towards making increased provision for the cure of souls in places where it is most needed.

This legislation has, in truth, as regards the financial position of the Church of England, amounted to a revolution. But this revolution has—and this is the point which specially deserves our notice—been marked by tender consideration for the conservatism and the fears of Church people. Of this let two examples suffice.

The Ecclesiastical Commission, it was feared, might as originally constituted1 become a mere department of the civil Government. This fear, though natural, was not reasonable. A board consisting of thirteen persons, all of whom were of necessity churchmen, and five of whom were bishops, could not, even though it did contain high officials such as the Lord Chancellor and the First Lord of the Treasury, who would always form part of the Cabinet, come under the control of the Government for the time being. But attention was paid to the nervousness of Churchmen. In 1840 the constitution of the Commission was modified, so that all bishops became ex officio Commissioners. The Commission has not become, and is not likely to become, a Government office.

Bishops and other ecclesiastical dignitaries were in danger, it was fancied, of sinking into mere stipendiaries, receiving from the State fixed incomes, which might any day be diminished or cut off by Parliament, and such dignitaries, it was feared, might at least lose the consideration which in England attaches to the ownership of large estates. These fears were not unnatural to a generation which could recollect the spoliation of the Church of France. But the complex provisions of the Ecclesiastical Commissioners Acts as to the mode of dealing, e.g. with episcopal property, betray the painful anxiety of Parliament that no bishop should lose the dignified position of a landowner. The Ecclesiastical Commissioners Act of 1836 in effect enacts that a bishop should pay the surplus revenue of his see to the Ecclesiastical Commissioners, but should retain the estates from which his revenue is derived. The ideal aimed at by the reformers of 1836, in short, was not to deprive the bishops of their estates, but that each bishop should be endowed with sufficient property vested in himself in his corporate capacity to produce what was considered an adequate income.

This idea could not always be carried out. Thus the poorer bishops, whose incomes were increased, received incomes payable out of funds in the hands of the Commissioners, who were, however, empowered to make the necessary augmentations by the transfer of property from one bishop to another. In 1860 it was desirable for the benefit of the Church to get rid of the system of leases for lives. With this end the estates of all the Bishops were vested in the Commissioners, but the Ecclesiastical Commissioners were bound in place thereof to put the Bishops in possession of estates freed from the peculiar leasehold tenure, or to pay them fixed incomes until such re-endowment had taken place.1

The fears of churchmen have turned out absolutely groundless. Not one penny of Church revenues has ever been devoted to any secular purpose. The dignitaries of the Church have assuredly not been transformed into part of the civil service. Under the management of the Commissioners the aggregate wealth of the Church has year by year increased, and its riches have been employed for the benefit of the Church.1 With this great reform must be connected the enactments by which non-residence and pluralism2 on the part of the clergy have been all but brought to an end, and the amendments of legal procedure3 which have made it possible to remove from benefices clergymen whose lives bring discredit on the Church.

Nothing, indeed, is more noteworthy than the rapidity with which the internal reform of the Establishment4 as carried out bit by bit throughout the nineteenth century, has produced its full effect. Pluralism, the non-residence of the clergy, the neglect of clerical duties, the dependence of the Bishops on the Government of the day, the scandals or abuses which shortly before the era of reform were denounced and exaggerated by the authors of the Black Book, became by the middle of the nineteenth century utterly foreign to the spirit and the habits of the Church. The Church Establishment of 1850 was in all these matters not the Establishment of 1800, or even of 1832, but the Church Establishment of 1905. The rapidity of this change becomes apparent when we remember that the first Ecclesiastical Commissioners Act dates from 1836, and that therefore some fourteen years were sufficient to abolish, not, indeed, all ecclesiastical abuses, but the condition of public sentiment under which these abuses flourished. It is, indeed, a fair presumption that the Evangelical movement which had long preceded, and the High Church movement which followed 1834, both contributed to produce a state of religious and moral feeling among the laity and the clergy which gave effectiveness to legislative reform. Still the reform itself must have done much to stimulate the development of a sound public spirit.1

As to external reform.—From 1832 onwards the tendency of legislation has been to make the political and civil rights of Englishmen independent in the main, not only of their churchmanship but of their religious belief. But English lawmakers, whilst showing little respect for ecclesiastical dogmas, and whilst attending very little to abstract principles of any kind, have been guided in the main by ideas of immediate expediency, or, to put the matter more plainly, by the wish to remove the grievances of any class strong or organised enough to make its wishes effectively heard in Parliament. By 1854 the political disabilities of Nonconformists and Roman Catholics were for the most part, though not entirely, abolished. Restrictions on the worship of Nonconformists and hindrances to bequests for the educational or religious purposes of Nonconformists have been removed from the Statute-book.1 Not till late in the nineteenth century, when one Act after another had been passed to meet the conscientious difficulties of special classes of persons who scrupled to take an oath, was the broad principle established by law2 that no man, even though he were an avowed atheist, ought to suffer any civil or political disadvantage from unwillingness or disability to take an oath. Jews, after a long struggle, were admitted in 1844 to municipal offices, and in 1859 to a seat in Parliament.3 These are but a few examples of the concessions made to the demand of dominant liberalism for the extension of religious and civil equality, and even more of the way in which these concessions were curtailed or delayed, often for years, by deference, partly indeed to the general conservatism, but mainly to the ecclesiastical convictions or sentiment of the time.

The system, however, of combined concession and conservatism can be made intelligible only by studying concrete illustrations of the way in which it worked. Let us examine, therefore, though in the barest outline, the legislation by which Parliament has in several instances removed palpable grievances connected with the position or privileges of the Church, or supported by ecclesiastical opinion.

In 1832 a valid marriage could not be celebrated1 otherwise than in the parish church, and in accordance with the rites of the Church of England. This state of things was resented by Nonconformists (under which term may for the present purpose be included Roman Catholics), and especially by Unitarians, who were compelled to take part in a service containing a distinctly Trinitarian formula.2 After 1832 concession to the wishes of Dissenters became a necessity. The Marriage Act, 1836, 6 & 7 Will. IV. c. 85, taken together with the Births and Deaths Registration Act, 1836, 6 & 7 Will. IV. c. 86, removed a grievance, and also introduced a substantial reform. It allowed the celebration of marriages in three different ways:—(1) As heretofore, in the parish church in accordance with the rites of the Church of England; (2) Without any religious ceremony, but in the presence of a registrar; (3) In a Nonconformist place of worship duly registered, according to such forms and ceremonies as the parties might see fit to adopt. The public was also benefited by arrangements which were intended to secure the registration at a central office of every marriage wherever celebrated. The Marriage Act of 1836 was disliked by the clergy, even though a Conservative statesman, such as Peel, accepted whilst attempting to limit the effect of a necessary change. But the Act was deeply marked by deference to Church feeling. The State did not institute any general system of civil marriage. Church marriages were hardly affected by the new law. Marriage in a Nonconformist chapel was not put on the same footing as a marriage in a church. The one derived its validity from the presence of the registrar, the other from celebration by the clergyman.1 Thus a practical grievance was removed, but a sentimental grievance was kept alive. As time went on Nonconformists claimed the removal of what they deemed a badge of inferiority. If politicians could have looked only to the interest of the public, this grievance might easily have been remedied, and the proper registration of marriages been secured by requiring the presence of a registrar at every marriage, whether solemnised in church or in chapel. This simple course was not taken; it was opposed to the sentiment of the clergy, and no politician could overlook the force of ecclesiastical opinion. In 1898 the grievance of the Nonconformists was, after a lapse of sixty-two years, completely removed; but this removal was achieved by dispensing with the presence of a registrar at a marriage in a registered Nonconformist chapel.1 This method of reform satisfied Nonconformists, and gave no offence to Churchmen. It had but one defect: it somewhat diminished the security for the registration of marriages. To the deference, then, yielded to ecclesiastical opinion was sacrificed in 1836 the completeness of a necessary reform, and sixty years later, in 1898, the public interest in the due registration of marriages.

The Divorce Act of 18572 was a triumph of individualistic liberalism and of common justice. It did away with the iniquity of a law which theoretically prohibited divorce, but in reality conceded to the rich a right denied to the poor. In the face of strenuous ecclesiastical opposition, headed by Mr. Gladstone, divorce was legalised, and divorced persons were left absolutely free to marry. But here, again, regard was paid to clerical feeling. A clergyman of the Church of England is, after all, an official of the National Church; but under the Divorce Act he is allowed to decline to solemnise the marriage of any person whose former marriage has been dissolved on the ground of his or her adultery.3 Thus a clergyman, while acting as an official of the State, is virtually allowed to pronounce immoral a marriage permitted by the morality of the State.

In 1832 the burial law involved a grievance to Dissenters. A man was entitled to be buried in the parish churchyard which contained, it might be, the tombs of all his friends and relatives, but any funeral in a churchyard was of necessity accompanied by the burial service of the Church of England, performed by a clergyman. There might well be Dissenters who either desired some other service, or on grounds of conscience or feeling objected to the burial service of the Church of England. At last in 1880, the Burial Laws Amendment Act1 made to any one who, for any reason, objected to the use of the Church burial service, the concession that any person entitled to burial in a particular churchyard might be buried there without the Church service, or with such religious service, if professedly Christian, as the person responsible for the funeral might think fit. Note, however, that no address which is not part of a religious service can be delivered in a churchyard. The concession, in short, made to the sentiment of persons not members of the Church of England has been restricted within the very narrowest limits compatible with the removal of a practical grievance.

In 1832 a system of religious tests still closed the national universities—in the case of Oxford wholly, in the case of Cambridge all but wholly—to any person who was not an avowed member of the Church of England.1 In every college church services were daily performed, and the attendance thereat of undergraduates was required. Any religious education given was education in the doctrines of the Church of England. The national universities were no places for Nonconformists of any class, and practically few Nonconformists, indeed, studied even at Cambridge till, at any rate, after the middle of the nineteenth century.2

The era of reform did not bring with it the admission of the nation to the national places of learning. The passing through the House of Commons in 1834 of a Bill abolishing university tests, showed what was the wish of Dissenters, and proved that it was sanctioned by the liberalism of the day. The rejection of the Bill by the House of Lords, without any effective protest on the part of the nation, showed how great was the strength of the Church. The attempt, which was only in part successful, to provide in London something like a university open to men of all creeds, probably diverted the pressure of Dissenters for admission to Oxford and Cambridge.1

At last in 18542 —twenty-two years after the passing of the Reform Act—the demand for university reform, at any rate at Oxford,3 could no longer be resisted. Parliament grudgingly opened or set slightly ajar the gates of the university, so as to make possible the entrance of persons not members of the Church of England. In principle this change was important. It alarmed zealous Churchmen. An eminent divine declared from the pulpit of St. Mary’s, that on the admission of a Nonconformist within its precincts, “Oxford would be Oxford no longer.” In practice the change was insignificant. At both universities every Nonconformist was excluded from most of the emoluments and posts of dignity which were the important reward of success at the university. No one but an avowed member of the Church of England could at Oxford become, or at Cambridge enjoy the full privileges of, an M.A. At last in 1871—thirty-nine years after the passing of the Reform Act and three years after the introduction of household suffrage—Parliament abolished the tests1 which kept large bodies of Englishmen away from Oxford and Cambridge. The national universities have at length become the universities of the nation. The length of time, the slowness of the process, the greatness of the efforts needed for the attainment of this result—and this during a period when liberalism was the dominant opinion of the day—gives us some measure of the force exerted by the opposing current of ecclesiastical opinion.

Concession is still balanced by conservatism. At Oxford no Nonconformist has access to the university pulpit; the services in the college chapels are the services of the Church of England; the degrees in divinity, the right to examine in the school of theology, the divinity professorships, the headship of one college,2 are all the monopoly of the Established Church. The state of things at Cambridge3 is in substance, though not always in form, pretty much the same as at Oxford. The national universities have been restored to the nation, but the Church still occupies there a position of pre-eminence and predominance.1

In 1832 nothing brought more unpopularity upon the Church than tithes and Church rates. An attack upon them gave hopes of success, and there were agitators or reformers ready to conduct the assault. It has been crowned with very little success. Tithes still exist, but a change in the mode of their collection and in their incidence under the Tithe Acts, 1836-1891,2 has gone far to free the Church from unpopularity. Church rates have, after a long controversy extending over thirty-four years, been in a sense abolished, but the very title of the enactment, the Compulsory Church Rate Abolition Act, 1868,3 reminds us that the Establishment, if in this matter defeated, has been allowed to retreat with honour. The Act abolishes, not the right to Church rates, but the means of compelling the payment thereof.4 This method of abolition, characteristic as it is of English love of compromise, whilst it saved the dignity, also promoted to a slight extent the pecuniary interest of the Established Church. A rate which may be imposed but which cannot be exacted, may sometimes be in practice paid, at any rate by Churchmen.1

These examples, whereof the number might easily be increased,2 sufficiently illustrate and confirm the statement that in all legislation affecting the Church, the dominant current of liberal opinion has been modified by the strong cross-current of ecclesiastical conviction. The whole view, however, taken in this lecture of the policy of conservatism and concession is open to two objections. The one is grounded on certain attempts to widen the foundations of the Church, the other on the disestablishment of the Irish Church.

As to attempts to widen the foundation of the Church.—It cannot be denied that during the last seventy-five years nothing has been done to further the policy of comprehension, or to bring again within the Church any large body of Dissenters, but the doctrine of the Church has, it may be argued, been affected by legislation, whether judicial or parliamentary, which tells upon subscription to the Articles, or otherwise affects the status of clergymen.

The decisions of the Privy Council have, it is constantly alleged, made for comprehension of a particular kind. The judgment in the Gorham case3 has enabled Evangelical clergymen to remain with a quiet conscience ministers of the Church of England. The Bennet case1 has averted the possible secession of High Church clergymen. A series of cases2 more or less connected with the publication in 1861 of Essays and Reviews have, it is supposed, established the right of clergymen to criticise with considerable freedom the doctrines of the Church and the contents of the Bible, and yet, as Broad Churchmen, to retain the position of clergymen of the Church of England. But even if it be granted that this is so, the judgments of the Privy Council have after all done little more than maintain the status quo. Clergymen of the Church of England, in common with the whole body of Churchmen, have always been divided into Low Churchmen, High Churchmen, and Broad Churchmen or Latitudinarians. As far, therefore, as the judgments of the Courts go, they have introduced little change and have always left things to stand as they have been for generations.3

The Clerical Subscription Act, 1865,1 has undoubtedly to a slight degree relaxed the terms on which an Anglican clergyman is required to signify his belief in the articles and formulas of the Church of England, whilst the Clerical Disabilities Act, 1870,2 which is constantly, though quite erroneously, described as an Act abolishing the indelibility of Orders, has enabled a clergyman to resume the rights and liabilities of a layman. These statutes, which deserve the careful attention of anyone engaged in examining the theological tendencies in England of the nineteenth century, do most undoubtedly show the existence between 1860 and 1870 of a peculiar condition of public sentiment. The two Acts cited above, together with several judgments of the Privy Council, bear witness to the existence and to the temporary influence of the Broad Church movement. They were acts of relief for Broad Church or Latitudinarian clergymen, they enable a man of sensitive conscience to take orders, even though he does not assent to every one of the Thirty-nine Articles, and make him feel with reason that his position as a clergyman is made the easier because he is allowed, as far as the State is concerned, to resume at any moment the status of a layman. But the legislation which bears witness to the influence of the Broad Church movement has neither in reality affected the doctrine of the Church, nor even tended towards the admission of Dissenters.3

As to the Irish Church Act, 1869.1 —This enactment tended, it is alleged, towards the disestablishment of the Church of England, and the tendency becomes the more manifest when we remember that the so-called Church of England was, between 1800 and 1869, simply a part of the United Church of England and Ireland, which in the eye of the law constituted one ecclesiastical establishment. It may, therefore, be alleged, with technical truth, that the Legislature did in 1869 actually disestablish part of the National Church. Nor can it be denied that the legislation of 1869 was supported by Dissenters who desired disestablishment no less in England than in Ireland. Yet appearances are here delusive. The Act of 1869 did not touch the foundations of the Church of England. It was carried in reality owing to circumstances peculiar to Ireland. The Irish Church Establishment had been for more than half a century attacked by Whigs no less than by Radicals. An institution which had been morally undermined for generations was easily overthrown by a statesman whose genius enabled him to unite for the assault upon it Whigs and Radicals, Nonconformists and High Churchmen. The Irish Establishment fell mainly because Englishmen believed rightly enough that the maintenance thereof was unjust, and thought, erroneously as the event proved, that it was the grievance which mainly fostered Irish discontent, and partly because High Churchmen felt no sympathy with a Church which was the stronghold of Protestantism. One thing, at any rate, the Act of 1869 places past dispute; the Evangelicals, who were the natural allies of the Protestant Churchmen of Ireland, had by that date ceased to control the religious opinion of England. Yet even the policy of 1869 illustrates the legislative power of clerical convictions. The terms of disestablishment were singularly favourable to the Church. It retained all the ecclesiastical edifices which it possessed in 1868; it was not in effect deprived of all pecuniary resources. Nor is it irrelevant to remark that the Irish Church Act of 1869 renders it all but impossible for the Church, although disestablished, to form without the aid of Parliament a body which might include the Protestant Dissenters of Ireland. Here, as elsewhere, is apparent the influence of ecclesiastical, and indeed, of High Church opinion.

The very instances, therefore, which appear at first sight inconsistent with the policy of conservatism and concession, lose, when carefully examined, this appearance of inconsistency. They do more than this; they illustrate in the most marked manner that dependence of legislation upon opinion which is the theme of these Lectures: in the slight relaxation of the terms of clerical subscription, and in the disestablishment of the Church of Ireland in 1869, is to be found the conclusive proof, that any deviations from the ordinary course of legislation correspond at bottom with some peculiar, it may be transitory, fluctuation in public sentiment. The ecclesiastical legislation of the last seventy-five years leads to this result. It has been continuously affected by the dominant liberalism of the day which has told in favour of religious, no less than of civil equality. It has been modified by that cross-current (in this instance a very powerful one) of ecclesiastical opinion which has enforced respect for the convictions of Churchmen and the interest of the Established Church. But the action of this cross-current itself has been complicated by subtle modifications of ecclesiastical opinion. In no department of English law is more clearly visible to the intelligent investigator the close relation between the legislation and the opinion of a particular era.

Our survey of ecclesiastical legislation suggests both an observation and a question.

The observation is this: The policy, as regards Church affairs, of concession combined with conservatism, is merely one marked instance of that perpetual compromise between the spirit of innovation and the spirit of conservatism, which is the essential characteristic of English legislation and of English public life.

The inquiry is: Whether the merits of this system of compromise are or are not overbalanced by its defects?

Compromise involving great deference to clerical sentiment has averted the intense bitterness which, in foreign countries, and notably in France, has accompanied ecclesiastical legislation. The position of the Church of England has throughout the nineteenth century been gradually shifted rather than violently altered. The grievances which in 1828 excited the hostility of Nonconformists have been immensely diminished, yet the sentiment even of the clergy has not been embittered by a revolution every step of which they and zealous Churchmen have opposed; and whilst, in some respects, the wealth, the influence, and the popularity of the Church have been increased, the profound discord which arises from the identification of political with theological or anti-theological differences, and amounts in some countries to a condition of moral civil war, has been all but entirely averted. These are the virtues of compromise.

In the field, however, of ecclesiastical legislation the vices of compromise are as marked as its merits. Controversies, which are deprived of some of their heat, are allowed to smoulder on for generations, and are never extinguished. Thus national education has been for more than fifty years the field of battle between Church and Dissent, each settlement has been the basis of renewed dispute, and even now controversy is not closed, simply because the law has never established any definite principle. One change in the marriage law after another has failed to rest the whole matter on any satisfactory foundation. Our law of divorce enables a clergyman of the Church of England to cast a slur upon a marriage fully sanctioned by the law of the State. The piecemeal legislation engendered by the desire for compromise, and the spirit which this piecemeal legislation produces, are no small evils. “The time to do justice,” it has been well said, “is now.” To do justice bit by bit is in reality nothing else than to tolerate injustice for years. The long line of Oaths Acts is a monument to English pertinacity in the path of reform, but it is also a record—not at all a solitary one — of English indifference to the complete discharge of public duty.

Moralists or historians must weigh the merits against the faults of legislative compromise. Persons engaged in the study of legislative opinion will take a possibly fairer view of this subject, if they consider that the spirit of compromise in ecclesiastical no less than in civil legislation is in reality nothing but the evidence of the accuracy with which the English legislature reflects the ebb and flow, the weakness and the strength, the action and the counter-action of every current of public feeling or conviction strong enough to arrest the attention of Parliament.1

[1 ]See pp. 62-302, ante.

[2 ]See pp. 36-41, ante.

[3 ]See Lecture XI., post. Logically the results of this difference are merely an illustration of the effect produced by a particular cross-current of opinion, namely, the legislative opinion of the judges, but the distinctions between the legislative opinion of Parliament and the legislative opinion of the Courts, and the way in which these two kinds of opinion act and react upon one another, is so noteworthy as to deserve separate consideration.

[1 ]See pp. 40, 41, ante.

[1 ]It is well to remember that the Established Church of England was in 1832 indissolubly united with the Irish Church Establishment.

[2 ]The legislative opinion of the day since 1830, except in so far as it has been modified by the opinion of the clergy or of churchmen, has assuredly been anti-clerical, at any rate to this extent, that it has been opposed to the maintenance of Church privileges, as well as to any law or institution which makes a man’s civil or political rights dependent upon his religious belief. As far as the ecciesiastical legislation of the nineteenth century goes, one need not draw any marked distinction between the era of individualism and the era of collectivism, though the gradual rise of collectivism may have indirectly increased the influence of clerical opinion.

[1 ]Whenever classes of citizens are for the first time admitted to political rights, their immediate influence is exaggerated. In 1832, at any rate, Tories and Radicals alike imagined that the ten-pound householders had obtained an amount of power far greater than they were really able to exert.

[1 ]Trevelyan, Life of Macaulay, i. p. 303.

[2 ]See Arnold, Miscellaneous Works, p. 259; Stanley, Life of Arnold, i. p. 336.

[3 ]Tracts for the Times, No. 1, p. 1.

[1 ]See Reign of Queen Victoria, i., Religion and the Churches, by E. Hatch, pp. 364-393.

[1 ]In Ireland, indeed, Sydney Smith favoured, in common with most of the Whigs, the policy of concurrent endowment; he showed no wish to apply it to England. In this there was no inconsistency. The maintenance in Ireland of a Church hateful to the vast majority of the people was exactly the kind of wrong which Sydney Smith and the Whigs felt most keenly. Concurrent endowment, moreover, might possibly cool the fanaticism of the Roman Catholic priests, and, as far as was compatible with justice, prolong the existence of the Protestant Establishment.

[1 ]For the attitude of Lord Melbourne in 1834 see Annual Register, 1834, p. 199. “All attempts at a religious comprehension of the Dissenters, and they had been made by some of the greatest prelates that ever adorned the episcopal bench, had failed; but, at all events, the House might make a step towards the object by a general civil comprehension of the Dissenters, and by admitting them to the benefits to be derived from the public institutions of the country. He [Lord Melbourne] apprehended that the Universities were originally founded for the support of literature and science; but he agreed that it was most desirable that Church of England principles should prevail in their system of education, and he would reserve to them complete their right to teach the religion of the country. At the same time, however, though he would not rashly meddle with honest prejudices and well-founded feelings, he would admit Dissenters for the sake of general peace and union; and in doing so he would only be sanctioning that which the most distinguished members of these very institutions had declared might be safely effected.”—Ibid.

[2 ]One school of thinkers, who really stood apart from both the Whigs and the Tories of their time, desired to comprehend the majority of English Protestants within the limits of the Establishment. It consisted of the small, though remarkable, body of men of whom Dr. Arnold is the best representative. He and his followers took up a peculiar position which hopelessly deprived them of influence. To the Low Churchmen of the day their soundness on doctrines, which to Evangelicals were of vital import, was open to the gravest suspicion. Anglicans were thoroughly estranged from a school whose leader offered the most strenuous opposition to every form of sacerdotalism. Whigs and Radicals could not act with Arnold when they found that his honest insistence upon the formal recognition of Christianity, as the religion of the State, compelled him to withdraw from all connection with the London University. In truth he was hampered at every step by his theory of the identity of State and Church. His teaching, though by no means the same as, is historically connected with, the Broad Churchmanship of a later day represented by Dean Stanley. But neither Arnold’s immediate disciples nor the Broad Churchmen produced much permanent effect on the legislation of the nineteenth century. They were unable to remove the Athanasian Creed from the Liturgy of the Church of England; they could not even relegate it, as it has been banished by the disestablished Church of Ireland, to an appendix to the Prayer-Book.

[1 ]Bain, James Mill, pp. 22, 23.

[1 ]Bain, James Mill, pp. 387, 388.

[2 ]Some authorities date it from Keble’s sermon on National Apostasy, 1833. Coleridge, Memoir of Keble, p. 218. Incapacity for dealing with ecclesiastical questions characterised the philosophic liberalism of the eighteenth century. To this defect Quinet ascribes the mistakes and failures of revolutionary statesmanship in all matters of Church policy. An idea was certainly current at the end of the eighteenth and the beginning of the nineteenth century that religious differences would become politically unimportant. “Let us,” writes Burke, in 1792, “form a supposition (no foolish or ungrounded supposition) that in an age when men are infinitely more disposed to heat themselves with political than religious controversies, the former should entirely prevail, as we see that in some places they have prevailed, over the latter; and that the Catholics of Ireland, from the courtship paid them on the one hand, and the high tone of refusal on the other, should, in order to enter into all the rights of subjects, all become Protestant dissenters, and as the others do, take all your oaths. They would all obtain their civil objects; and the change, for any thing I know to the contrary (in the dark as I am about the Protestant dissenting tenets), might be of use to the health of their souls. But, what security our constitution in Church or State could derive from the event I cannot possibly discern. Depend upon it, it is as true as nature is true, that if you force them out of the religion of habit, education, or opinion, it is not to yours they will ever go. Shaken in their minds, they will go to that where the dogmas are fewest; where they are the most uncertain; where they lead them the least to a consideration of what they have abandoned. They will go to that uniformly democratic system to whose first movements they owed their emancipation.”—M. Arnold, Edmund Burke on Irish Affairs, Letter to Sir H. Langrishe, M.P., pp. 270, 271.

[1 ]The “pamphlet [on Church Reform] was written on the supposition — not implied, but expressed repeatedly — that the Church Establishment was in extreme danger. . . . I mistook, undoubtedly, both the strength and intenseness of the movement, and the weakness of the party opposed to it; but I do not think that I was singular in my error—many persisted in it; Lord Stanley, for example, even in 1834, and the subsequent years — many even hold it still, when experience has proved its fallacy.”—Letter of Arnold in 1840, Stanley, Life of Arnold, i. (5th ed.), p. 336.

[1 ]See Venn Family Annals, p. 187.

[1 ]Note the friendly relations between George Butt, incumbent of Kidderminster, and the Dissenting ministers of the town, as described in the biography of Butt’s daughter, the well-known Mrs. Sherwood. The whole tone of her stories implies that community of religious convictions obliterated in her mind any marked distinction between members of the Church of England and Nonconformists. Note, too, the respect felt by members of the Church of England for Robert Hall. The action of Henry Venn of Huddersfield is also instructive. “In one case Mr. Venn certainly gave very definite assistance to the establishment of a Dissenting congregation, but this was somewhat early in his career [1771], and his son assures us that he afterwards strongly regretted the step he had taken.”—Venn Family Annals, p. 95.

“We do not differ from our brethren in the Establishment in essentials: we are not of two distinct religions: while we have conscientious objections to some things enjoined in their public service. We profess the same doctrines which they profess; . . . we have the same rule of life; and maintain, equally with them, the necessity of that ‘holiness, without which none shall see the Lord.’ ”—Robert Hall, 1831, Works, v. p. 317, cited Henson, Religion in the Schools, p. 104.

[1 ]Better known as Anne Taylor.

[2 ]Autobiography, etc., of Mrs. Gilbert, vol. i. pp. 78, 79.

[1 ]The novelist was brought up in an atmosphere of devout and very strict Methodism. He was the son of Dr. Samuel Warren, who became a highly influential Wesleyan minister and preacher, but who later in life (1838) was admitted to orders in the Church of England.

[1 ]It may be doubted whether in a single novel of high repute published before 1850 there will be found a favourable picture of an English Dissenting minister. This statement has, of course, no application to pictures of Presbyterian ministers, or of Presbyterianism by Scottish writers.

[1 ]Tracts for the Times, vol. i. 1833-34, No. 1, pp. 3, 4.

[1 ]See Lect. XII. pp. 399-407, post.

[1 ]Political dissent or the development among Nonconformists of distinct opposition to all connection between Church and State on any terms whatever dates, it is said, from 1834. The movement for Disestablishment has combined with the High Church movement of 1835 to prevent fundamental alterations in the position or the doctrine of the Establishment. In 1832 the Church forbade Disestablishment. Political dissent, as represented by Mr. Miall and the Nonconformist newspaper, has negatived all idea of comprehension.

[1 ]In 1791 Bishop Watson wrote to the Duke of Grafton: “In England we certainly want a reform, both in the civil and ecclesiastical part of our constitution. Men’s minds, however, I think, are not yet generally prepared for admitting its necessity. A reformer of Luther’s temper and talents would, in five years, persuade the people to compel the Parliament to abolish tithes, to extinguish pluralities, to enforce residence, to confine episcopacy to the overseeing of dioceses, to expunge the Athanasian Creed from our Liturgy, to free Dissenters from Test Acts, and the ministers of the establishment from subscription to human articles of faith.”—Watson’s Memoirs, p. 256, and see Bain, James Mill, p. 381. More than a century has passed since Watson wrote these words. Observe how incompletely his anticipation of impending changes has been fulfilled. Tithes are still paid, the Athanasian Creed still remains part of our Liturgy, ministers of the Church are not freed from subscription to human articles of faith.

[1 ]Elliot, The State and the Church (2nd edition), pp. 104, 105.

[1 ]I.e. 6 & 7 Will. IV. c. 77, which relates to bishoprics, and 3 & 4 Vict. c. 113, which relates to chapters. See also Elliot, State and Church (2nd ed.), c. xi. and Appendix, Note II., post, Ecclesiastical Commission.

[2 ]In which should be included the Ecclesiastical Commissioners Acts, 1841-1885.

[3 ]It is hardly necessary to state that in the Acts of 1836 and 1840, as indeed in all the Ecclesiastical Commissioners Acts, the vested interests of individuals were carefully respected.

[4 ]Elliot (2nd ed.), pp. 79, 108.

[1 ]I.e. that part of the revenue of any bishop or chapter which in the opinion of Parliament exceeded the amount necessary or suitable for the performance of his or its duties.

[1 ]“The original composition of the corporation under the Act of 1836 seemed almost to contemplate its becoming a department of the State, so closely were its members connected with the Government of the day. The First Lord of the Treasury, the Lord Chancellor, a Secretary of State, the Lord President of the Council, and the Chancellor of the Exchequer, with the Archbishops and the Bishops of London, Lincoln, and Gloucester, with three distinguished laymen named in the Act, formed the original Ecclesiastical Commission, and provision was made that in supplying vacancies the proportion of laymen to bishops should be preserved, andthat the former should of necessity be members of the Church of England.”—Elliot, The State and the Church (2nd ed.), pp. 106, 107.

[1 ]This re-endowmenthas, in fact, been effected.

[1 ]Jealousy of the Commission has died away. By agreement with each bishop the Commissioners have undertaken the management of episcopal estates.

[2 ]Pluralities Act, 1838, 1 & 2 Vict. c. 106; 1850, 13 & 14 Vict. c. 98; 1885, 48 & 49 Vict. c. 54.

[3 ]Privy Council Appeals Act, 1832, 2 & 3 Will. 4, c. 92; the Judicial Committee Act, 1833, 3 & 4 Will. 4, c. 41; the Church Discipline Act, 1840, 3 & 4 Vict. c. 86, with which read the Public Worship Regulation Act, 1874, 37 & 38 Vict. c. 85.

[4 ]See Appendix, Note II., Ecclesiastical Commission.

[1 ]Bishop Watson was a man of some liberality. He could denounce pluralism (see p. 335, ante), and, according to a recent biographer, kept in view the interests of practical religion. He held, including his bishopric, and received the emoluments of, four ecclesiastical offices. He systematically neglected the duties attaching to all of them. “He lived [for some years before his death, in 1815] in his pleasant country house at Windermere, never visiting his diocese, and, according to De Quincey, talking Socinianism at his table.”—L. Stephen, English Utilitarians, i. p. 39. In 1850 Bishop Watson was an impossibility. It was the age of Bishop Proudie.

[1 ]The Nonconformists Chapels Act, 1844, 7 & 8 Vict. c. 45, established a sort of Statute of Limitations enabling congregations of Dissenters to retain chapels and endowments to which they had by usage acquired a moral right, but to which, under the trust deeds of an earlier age, they had, through changes in the doctrine held by particular congregations, lost their legal right. TheAct mainly benefited Unitarians: it did not touch the rights of the Established Church, and may have passed the more easily because by 1844 many of the Anglican clergy were indifferent to the distinction between so-called orthodox and unorthodox forms of dissent.

[2 ]Oaths Act, 1888, 51 & 52 Vict. c. 46. It was possible, certainly till 1869 (32 & 33 Vict. c. 68), and perhaps till 1888, that an honest atheist might have been unable, on account of his inability to take an oath, to maintain with success an action, e.g. for therecovery of a debt. See Stephen, Comm. iii. 598, 599.

[3 ]And that at first in a curiously indirect manner.

[1 ]Except in the case of Jews and Quakers.

[2 ]The grievance was felt the more bitterly because it was in reality recent. Prior to the Marriage Act, 1753, 26 Geo. II. c. 33 (which had been re-enacted with some amendments in 1823, 4 Geo. IV. c. 76), the marriages of Nonconformists celebrated in Dissenting chapels and not in accordance with the rites of the Church of England, had, it is said, been treated as valid.

[1 ]The fees moreover payable to the registrar were heavier than the fees payable on a marriage in the parish church. This, it is said, imposed a tax or fine upon persons often very poor, who were not married in church (Lilly and Wallis, Manual of Law specially affecting Catholics, pp. 54-57).

[1 ]The Marriage Act, 1898, 61 & 62 Vict. c. 58.

[2 ]The Matrimonial Causes Act, 1857, 20 & 21 Vict. c. 85.

[3 ]Ibid. c. 55, 57, 58.

[1 ]43 & 44 Vict. c. 41.

[1 ]At Oxford a young man, or, as in the case of Bentham, a mere boy, was required at matriculation to subscribe the Thirty-nine Articles of the Church of England. Subscription was again required before taking the degree of B.A., and lastly before taking the degree of M.A. At Cambridge in 1832, no subscription of religious belief was, or (it is conceived) ever had been required at matriculation. If accepted by the college authorities students of any belief could come into residence, reside their full time, and enter for the degree examination. Their names would appear in the order of merit in the Tripos, but they could not actually obtain the degree without declaring themselves bona fide members of the Church of England. But whilst the University of Cambridge did not exclude Nonconformists from anything but the degree, they were practically all but excluded from the colleges. The masters and tutors would in most cases have either directly refused admission to a Nonconformist, or if he had been admitted, would probably have forced him to attend the college chapel.

At Oxford, in short, Nonconformists were excluded by the rules of the university, at Cambridge they were virtually excluded by the rules of the colleges. All but a very few Dissenters were, till late in the nineteenth century, excluded both by the atmosphere of the place and by the conduct of the college authorities. See Appendix, Note III., University Tests.

[2 ]Early in the nineteenth century a popular writer could describe our universities with gross technical inaccuracy, but with much substantial truth, as academies for the education of ministers of the Church of England.

[1 ]Policy or accident favoured the opposition, supported in the main by the opinion of Churchmen, to a necessary reform. The London University never became, in a strict sense, a university at all. University College provided a place of liberal education for Dissenters, just as King’s College provided in London a place of liberal education for Churchmen. The London University itself became at last nothing but an examining body. The result was that, while the agitation for the abolition of tests at the national universities was checked and weakened, the foundation in London of a really national university open to every class of the nation was prevented.

[2 ]The Oxford University Act, 1854, 17 & 18 Vict. c. 81.

[3 ]At Cambridge the Cambridge University Act, 1856, 19 & 20 Vict. c. 88, threw open to Nonconformists all ordinary bachelors’ degrees, all endowments tenable by undergraduates, and the nominal title of M.A.; but under that Act Nonconformist M.A.’s were still kept out of the senate and the parliamentary constituency. See Sir George Young, University Tests, p. 53, and Appendix, Note III. post.

[1 ]Universities Tests Act, 1871, 34 Vict. c. 26, and College Charter Act, 1871, 34 & 35 Vict. c. 63.

[2 ]The Deanery of Christ Church.

[3 ]As at Oxford, the university pulpit is closed to every Nonconformist minister, and the services in the colleges are the services of the Church of England. An avowed or conscientious Nonconformist cannot become a Doctor of Divinity. The theological professorships are, with one exception, or possibly two exceptions, not open to any but Churchmen. No layman has, in fact, ever been elected a theological professor.

Compare Henry Sidgwick’s statement in 1898 as to the extent to which theological teaching was at Cambridge left in the hands of the Church of England by the Universities Tests Act, 1871.—H. Sidgwick, A Memoir, p. 564.

[1 ]The law does not forbid the foundation in the universities of denominational colleges, such e.g. as Hertford College. See R. v. Hertford College (1877), 2 Q.B.D. 590; (1878) 3 Q.B.D. (C.A.) 693.

[2 ]6 & 7 Will. IV. c. 71 to 54 & 55 Vict. c. 8.

[3 ]31 & 32 Vict. c. 109.

[4 ]Though this is so as to newly imposed Church rates, the Act of 1868 “contained provisions preserving the old system in certain specified instances, generally of only local application.” See Elliot, State and Church, 2nd ed. p. 43 (n.).

[1 ]In 1834 the Whig ministry offered the Church a considerable pecuniary compensation for the abolition of Church rates (Annual Register, 1834, pp. 207, 213). Both the offer and the refusal show a recognition of the strength still possessed by the Establishment.

[2 ]E.g. by an examination of the policy pursued and the Acts passed with regard to the elementary education of the people of England.

[3 ]See Gorham v. Bishop of Exeter, heard and determined in the Privy Council (8th March 1850). E. F. Moore.

[1 ]Sheppard v. Bennet (No. 2) (1871), L.R. 4, P.C. 371.

[2 ]E.g. Williams v. Bishop of Salisbury, and Wilson v. Fendall (1864); Brodrick v. Fremantle, Ecc. Cas. 247.

[3 ]It is, of course, indisputable that at any rate during the last fifty years and more public opinion has changed, though the extent of the change is liable to be a good deal exaggerated, as to the moral obligations incurred by subscription to the Articles. The circumstance which raises a suspicion that the change in public opinion may be less than is generally supposed, is the very slight effect produced thereby on legislation. Throughout the nineteenth century many have been the Churchmen, whether clerics or laymen, who have objected to the retention in the Church services of the Athanasian creed, but the efforts for its removal from the services by legislation have been few and entirely unsuccessful. It is further noteworthy that clergymen and others, who maintain that subscription or declaration of assent to the doctrine of the Church of England leaves almost unlimited freedom of dissent from that doctrine, do not make any serious attempt to obtain a legislative declaration of the soundness of an opinion on which both legally, and in a certain sense morally, depends the whole position of a clergyman of the Church of England.

[1 ]28 & 29 Vict. c. 122.

[2 ]33 & 34 Vict. c. 91.

[3 ]In nothing is the influence of Church opinion more marked than in the language of the Clerical Disabilities Act, 1870, 33 & 34 Vict. c. 91. This statute, which enables a clergyman to resume all the rights and duties of a layman, and to free himself, as far as the State is concerned, from the liabilities, whilst giving up the rights, of a clergyman of the Church of England, contains no expression which either affirms or denies the indelibility of orders.

[1 ]32 & 33 Vict. c. 42.

[1 ]If anyone looks at politics from the somewhat abstract point of view suggested by these Lectures he will find a peculiar interest in the career of Gladstone. Such an observer will note that Gladstone from peculiarities of character and education was able to unite, whether consistently or not, the sentiment of liberalism with the ecclesiastical sentiment belonging to a High Churchman. In the sphere of economics, and even of politics, he to a great extent accepted the doctrines of Benthamite individualism as represented by the Manchester school. In the ecclesiastical sphere he accepted, it would seem, High Church principles as represented by Archdeacon Manning, until the archdeacon was transformed into a Roman Catholic ecclesiastic. This singular combination of sentiments or principles, which are rarely united in the mind of one man, contributed greatly to Gladstone’s influence. The capacity for honestly sharing the varying, and even the inconsistent, sentiments of his age augments the influence of a statesman.