The Online Library of Liberty

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• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface to the First Edition
• Preface to the Second Edition
• 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
• I.: The Period of Old Toryism Or Legislative Quiescence (1800–1830) 1
• II.: The Period of Benthamism Or Individualism (1825–1870) 3
• III.: Period of Collectivism (1865–1900) 5
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800–1830)
• (a): State of Opinion (1760–1830)
• (b): Absence of Changes In the Law
• (c): Why Considerable Changes Took Place During the Period of Quiescence
• (d): Close of the Period of Quiescence
• Lecture VI: The Period of Benthamism Or Individualism 1
• (a): Benthamite Ideas As to the Reform of the Law
• (b): the Acceptance of Benthamism
• (c): the Trend and Tendency of Benthamite Legislation
• Lecture VII: The Growth of Collectivism
• Tory Philanthropy and the Factory Movement
• Changed Attitude of the Working Classes
• Modification In Economic and Social Beliefs
• Characteristics of Modern Commerce
• Introduction of Household Suffrage, 1868–1884
• Lecture VIII: The Period of Collectivism
• (a): Principles of Collectivism
• (b): Trend of Collectivist Legislation
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• A.: the Course of Legislative Opinion
• B.: the Actual Course of Ecclesiastical Legislation
• Lecture XI: Judicial Legislation
• I.: The Special Characteristics of Judicial Legislation In Relation to Public Opinion
• II.: The Effect of Judge-made Law On Parliamentary Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• I.: As to Analogous Changes of Opinion In Different Spheres and Also In the Lives of Individuals.
• II.: As to the Dependence of Legislative Opinion On the General Tendencies of English Thought.
• Appendix
• Note I.: The Right of Association
• Note II.: The Ecclesiastical Commission
• Note III.: University Tests
• Note IV.: Judge-made Law
• Note V.: Proposed Collectivist Legislation of 1905 *
• Introduction to the Second Edition

note iii.

University Tests

(A)

Movement for Abolition from 1772.1

1772. Feathers’ Tavern petition rejected in the House of Commons by 217 to 71, but followed by the substitution, at Cambridge, of a declaration of bonâ fide church membership for the subscription to the three Articles of the 36th Canon.

1803. Oxford Examination Statute enacted by Convocation, whereby an examination in the Thirty-nine Articles was added to the existing conditions of a B.A. degree.

1834. Petition from 63 members of the Cambridge Senate, followed by long debates in both Houses, and counter-petitions.

Mr. G. Wood’s Bill, to open the University to Dissenting undergraduates, and to abolish the restriction of degrees to Churchmen, passed the House of Commons by majorities of 185 to 44, 371 to 147, and 164 to 75; but was rejected in the Lords by 187 to 85.

1835. Attempt by Lord Radnor in the Peers to abolish subscriptions on matriculation, defeated by 163 to 57. The Heads of Houses at Oxford had recommended this alteration, but it was rejected by Convocation.

Abolition of Unnecessary Oaths Act passed, clause 8 giving power to the Universities to substitute declarations, in certain cases, for oaths.

1836. Substitution accordingly at Cambridge of declarations for oaths of obedience to statutes, and such like.

1838. Similar substitution at Oxford.

1843. Mr. James Heywood’s petition presented by Mr. Christie, and Bill moved to abolish certain oaths and subscriptions, and extend education to persons not members of the Church of England. Rejected by 175 to 105. Attempts were made in the two succeeding years to revive the question, but without success.

1850. Mr. Heywood’s motion for a Commission to inquire into the state of the Universities and Colleges carried by 160 to 138, after six nights’ debate, with the consent of the Ministry, and issue of Commissions accordingly.

1852. Commissions reported.

1854. Oxford University Act (17 & 18 Vict. c. 81) passed, abolishing all religious tests on matriculation, or on taking an ordinary bachelor’s degree.

1856. Cambridge University Act (19 & 20 Vict. c. 88) passed, throwing open all ordinary bachelor’s degrees, all endowments tenable by undergraduates, and the nominal title of M.A. By this Act the declaration of bonâ fide church membership received for the first time a legislative sanction, and was employed to keep the Nonconforming M.A.s out of the senate and the parliamentary constituency.

1860, 1861. The Senior Wrangler for two years in succession prevented from sitting for a fellowship at Cambridge by the restrictions in the Act of Uniformity.

1862. Petition from 74 Fellows of Colleges at Cambridge actually resident, praying for the repeal of the “Conformity to the Liturgy” clause in that Act, on the ground of injury to the University.

1863. Bill introduced by Mr. Bouverie to give effect to the prayer of the petitioners, and read a first time by 157 to 135.

Petition from 106 of the Heads, Professors, and present and former Fellows of Colleges and College Tutors at Oxford, alleging the futility and pernicious effect of the restrictive system, and praying for the opening of degrees.

1864. Mr. Bouverie’s Bill rejected by 157 to 101.

Bill introduced by Mr. Dodson to place degrees at Oxford on the same footing as at Cambridge; read a second time by 211 to 189, but defeated finally by 173 to 171.

1865. Bill introduced by Mr. Goschen to throw open degrees at Oxford, and read a second time by 206 to 190. Degrees in Divinity were excepted from its operation.

1866. Mr. Bouverie’s Uniformity Act Amendment Bill (208 to 186) and Mr. Coleridge’s Oxford University Tests Bill (217 to 103) read a second time in the House of Commons. An attempt to reduce the latter to the dimensions of “the Cambridge compromise” was successfully resisted in Committee.

1867. Mr. Coleridge’s Bill was extended in Committee to Cambridge (253 to 166), and passed through the House of Commons without a division; but was defeated in the Lords by a large majority. Mr. Bouverie’s Bill read a second time by 200 to 156, but lost on a third reading by 41 to 34, at the very end of an exhausting session.

1868. The two Bills amalgamated, and made complete by the insertion in the repealing schedule of certain special Acts disqualifying Roman Catholics. The Bill completely enfranchised the University with the exception of degrees in Divinity; which exception is due to the unfortunate condition of Holy Orders attached to them. As to the Colleges, its action was permissive; it removed the impediments to free election imposed by the State; and these were in some cases the only legal restriction; but in others a new statute, framed by the College with the consent of the Queen in Council, and (in some) of the visitor, would have been necessary to render the removal effectual.

This Bill, though read a second time by 198 to 140, did not reach the House of Lords.

The Universities Tests Act, 1871, 34 Vict. c. 26, in effect abolished tests in the Universities of Oxford and Cambridge;2 it relieved persons taking lay academical degrees, or taking or holding lay academical or collegiate offices, from being required to subscribe any article or formulary of faith, or to make any declaration of religious belief, or profession (sec. 3).

But the general effect of the Act was subject to several restrictions.

(1) It did not apply to degrees or professorships of divinity.

(2) It did not open to any layman, or any person not a member of the Church of England, any office which was, under any Act of Parliament, or University or collegiate statute in force at the time of the passing of the Act, i.e. on 16th July 1871, restricted to persons in holy orders, or affected the person appointed thereto with the obligation to take orders.

(3) It did not apply to any college not existing on the 16th July 1871, i.e. it did not apply to colleges created after 16th July 1871. (See R. v. Hertford College (1878), 3 Q.B.D. (C.A.), 693.)

The Universities of Oxford and Cambridge Act, 1877, 40 & 41 Vict. c. 48, created commissions for carrying out various reforms in the Universities, and especially for the modification of college statutes. The Act did not directly affect religious tests, but it in fact led to the abolition of clerical restrictions on the tenure of almost all headships and fellowships of colleges.

(B)

Observations.

(1) The nationalisation of the English Universities has, like most other great reforms, been carried out with extraordinary slowness (see pp. 21–24, ante). The presentation of the Feathers’ Tavern Petition, 1772, is separated from the Universities Tests Act, 1871, by a year less, and from the Universities of Oxford and Cambridge Act, 1877, by five years more, than a century.

(2) Delay in the execution of a necessary reform has, as in other instances, been here equivalent to a change in the character and the effects of the reform itself (see pp. 28–30, ante). The petitioners of 1772 aimed at a wider and a different kind of revolution from the change accomplished either by the Liberals who carried the Universities Tests Act, 1871, or by the statesmen, whether Conservatives or Liberals, who planned and carried the Universities of Oxford and Cambridge Act, 1877. Nor is it possible to doubt that the opening of the national universities to Nonconformists in 1834 would certainly have been a different thing from the tardy nationalisation of the universities in 1871.

(3) This nationalisation is still incomplete.3 The Established Church still, as a matter of fact, occupies at Oxford and Cambridge a position of pre-eminence and predominance (see p. 250, ante). The correctness of this statement may possibly, I know, be disputed, but seems to me, after the most careful consideration, undeniable. If none but Roman Catholic priests had access to the university pulpits; if no one but a Roman Catholic could at Oxford or Cambridge take a degree in divinity; if in both universities every theological professorship were in fact held, and almost every theological professorship were tenable only by a Roman Catholic, and at Oxford only by a Roman Catholic priest; if, whilst a Roman Catholic might be the head of any college and many Roman Catholics occupied that position, the headships of some two, or possibly three colleges were restricted to priests of the Church of Rome; if in every college chapel Roman Catholic services, and Roman Catholic services alone, were, during term, daily celebrated; if, to sum up the whole matter, the Church of Rome possessed by law at Oxford and at Cambridge the privileges, and no more than the privileges, now in fact retained by the Church of England, could any man for a moment deny that Roman Catholicism did, in fact, in our national universities hold a position of pre-eminence? But if this question contains its own answer, how is it possible to argue that the Church of England is not at the present moment predominant in the Universities both of Oxford and of Cambridge? It is, of course, arguable that a church, acknowledged with the assent of the country to be the Church of the nation, must hold a position of superiority at the national universities. With this point, be it noted, we are here in no way concerned: my only wish is to insist upon the fact that, whether wisely or unwisely, whether rightly or wrongly, the nationalisation of the English universities is still left incomplete.

[1. ]Use has been made, with permission, of Note M to Sir George Young’s pamphlet on University Tests.

[2. ]As also of Durham.

[3. ]See letter of H. Sidgwick, April 25, 1898, in A Memoir, pp. 564, 565. [Editor’s note: This footnote was added in the second edition.]