Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow B.: The Actual Course of Ecclesiastical Legislation - Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.)

Return to Title Page for Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.)

Search this Title:

B.: The Actual Course of Ecclesiastical Legislation - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


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.28 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.29

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 1840.30 This legislation,31 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.32 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;33 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 surplus34 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 constituted35 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.36

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.37 With this great reform must be connected the enactments by which non-residence and pluralism38 on the part of the clergy have been all but brought to an end, and the amendments of legal procedure39 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 Establishment,40 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.41

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.42 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 law43 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.44 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 celebrated45 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.46 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.47 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.48 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 185749 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.50 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 Act51 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.52 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.53

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.54

At last in 185455 —twenty-two years after the passing of the Reform Act—the demand for university reform, at any rate at Oxford,56 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 tests57 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,58 are all the monopoly of the Established Church. The state of things at Cambridge59 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.60

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, 1836–1891,61 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, 1868,62 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.63 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.64

These examples, whereof the number might easily be increased,65 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 case66 has enabled Evangelical clergymen to remain with a quiet conscience ministers of the Church of England. The Bennet case67 has averted the possible secession of High Church clergymen. A series of cases68 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.69

The Clerical Subscription Act, 1865,70 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, 1870,71 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.72

As to the Irish Church Act, 1869.73 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.74

LECTURE XI

Judicial Legislation

my purpose in this lecture is, first, the description of the special characteristics of judicial legislation1 as regards its relation to public opinion; and, next, the illustration, by a particular example—namely, the changes in the law as to married women’s property—of the way in which judge-made law may determine the course and character of parliamentary legislation.

[28. ]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.

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

[30. ]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.

[31. ]In which should be included the Ecclesiastical Commissioners Acts, 1841–1885.

[32. ]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.

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

[34. ]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.

[35. ]“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, and that the former should of necessity be members of the Church of England.”—Elliot, The State and the Church (2nd ed.), pp. 106, 107.

[36. ]This re-endowment has, in fact, been effected.

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

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

[39. ]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.

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

[41. ]Bishop Watson was a man of some liberality. He could denounce pluralism (see p. 238, 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.

[42. ]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. The Act 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.

[43. ]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 the recovery of a debt. See Stephen, Comm. iii. 598, 599.

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

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

[46. ]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.

[47. ]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).

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

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

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

[51. ]43 & 44 Vict. c. 41.

[52. ]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.

[53. ]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.

[54. ]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.

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

[56. ]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.

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

[58. ]The Deanery of Christ Church.

[59. ]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.

[60. ]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.

[61. ]6 & 7 Will. IV. c. 71 to 54 & 55 Vict. c. 8.

[62. ]31 & 32 Vict. c. 109.

[63. ]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.).

[64. ]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.

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

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

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

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

[69. ]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.

[70. ]28 & 29 Vict. c. 122.

[71. ]33 & 34 Vict. c. 91.

[72. ]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.

[73. ]32 & 33 Vict. c. 42.

[74. ]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.

[1. ]See Ilbert, Legislative Methods, pp. 6–8; Pollock, Essays in Jurisprudence and Ethics, p. 237; Pollock, First Book of Jurisprudence (2nd ed.), Pt. II. ch. vi.