1. The Church and its Privileges

This chapter considers the governance of the Church, particularly the role of the secular organs of the state. To isolate that one set of relationships from other aspects of the Church’s complex integration with the state is artificial, and something must first be said about the establishment in a broader sense, the sense that outsiders might summarize as the privileges of the Church. So at the risk of gross over-simplification four well-worn facets of the Church’s relation to the secular state need a brief narrative before the fifth, the establishment in its narrower, institutional, sense can be addressed. Formulation of these facets inevitably begs questions. To take a simple argumentative illustration, Anglicans’ monopoly of entry to the University of Oxford and its colleges was attacked as a privilege, but defended as an aspect of property resting on an assertion of the historic truth that those bodies were as integral to the Church as canonries at a cathedral. There was no right answer to the question whether Oxford was a national or a Church institution, whether privilege or property was in issue. There was merely a political winner. An extensive modern literature treats these themes at length.¹

The first facet of the Church-state relationship, made redundant in the generation before 1820, was the imposition of criminal penalties on public adherence to other churches. That was dismantled for Catholics in 1791 and for Unitarians in 1813.² Catholics willing to subscribe to an oath supporting the protestant succession and denying any temporal claims of the pope could thereafter worship in public on similar terms to protestant Trinitarian dissenters, that is in licensed (p.386) buildings before licensed priests.³ Likewise they could enter the professions, though such was the equation of religion with education that masterships of schools and (of course) membership of the universities remained closed to them.

A second facet, of major political importance at the start of our period, excluded from civil power all who did not take the Anglican sacrament. Its impact on Dissenters had been mitigated for a long time by annual indemnity statutes, of sufficient practical importance for some Tories to regard the legislative barriers against Dissenters as being merely symbolic. The necessity the Whigs felt in 1835 to complete the job by radical reform of municipal corporations suggests that those Tories were right, though not for the reasons they gave. The repeal of those legislative barriers, the Test and Corporation Acts, in 1828 did not presage emancipation for Catholics, though that came the following year, the genesis and politics of the two reforms being quite different.⁴ Nonetheless, the two together did signal a swift transition from an Anglican state via a protestant state to a Christian state. That led to recurrent pressure on the third facet of the relationship, the legally protected privileges of Anglicans (not all of them wholly exclusive) such as the use of only their parish registers for recording births and only their service at burials in the parish churchyard. Anglican privileges extended beyond the use of the parish church and its environs, notably to the universities of Oxford and Cambridge, and as elementary education became an increasingly important political question so too the Church’s role in its provision came to be contested as both a privilege and as a barrier to progress. There was continuous pressure too on the fourth element of the relationship, the compulsory financing of the Church, be it through state grants in aid of new churches, or through tithes, or through the levying of church rates.

Transformation of these relations, from the Church as part of the constitution to the Church as nearly just another denomination, is a familiar theme of nineteenth-century history. One aspect, though, should be stressed here, which is best approached indirectly through recalling Dicey’s famous but much derided assertion that the civil liberties of Englishmen were better protected by the ordinary law than they would have been by a written constitution, because the former is much harder to dismantle.⁵The Church was similarly woven into the political constitution. There was no one great redrawing of the pattern, but instead an (p.387) unpicking thread by thread, the timing and detail of each change dependent on all manner of contingencies.

That is obviously true of the piecemeal dismantling of Anglican privileges, but it is just as true of the admission of non-Anglicans to participation in the processes of political power. Toleration was important as a Whig state of mind and as a liberal principle, but it was just the backdrop to very specific political contests. Lord John Russell omitted the Jews from the bill repealing the Test and Corporation Acts, for example, whereafter they had to claw their way to civic equality step by step. A Christian oath required of electors to municipal corporations in 1828 barred Jews until 1835, and remained to exclude them from municipal office for a further decade, though the Quakers, Moravians, and Separatists broke that barrier in 1838—these being not heathens but merely protestants who objected to oaths.⁶ A Christian oath also barred Jews elected to the Commons from taking their seats, and though the Liberal Commons when pressed by an actual case in point would have changed the law to accommodate him and his electorate’s wishes, the Conservative Lords would not.⁷ When the Lords reluctantly backed down in 1858 it was for fear of jeopardizing the minority Conservative government, allowing the Commons to go its own way, until in 1866 a uniform provision was enacted that was just enough to allow Jews entry to the Lords as well.⁸

As has often been pointed out, their achievement still did not establish a rule that belief was irrelevant as a qualification for entry to Parliament.⁹ So a generation later both protestant and Christian constitutionalism, in the Commons and out of it, were important strands in preventing the atheist Charles Bradlaugh from taking his seat.¹⁰ He was admitted only when the Speaker took advantage of the general swearing-in after a general election to allow him to take the oath, (p.388) nearly six years after his first election. Even then he functioned as a member only because of the Speaker’s discretionary decision to swear him in and the government’s forbearance to sue for a penalty for taking a false oath. Only after a further two years was a right enacted for anyone to affirm rather than swear, when Bradlaugh’s own Oaths Act was passed in 1888.¹¹

Similarly, emancipation of Catholics had been a begrudging affair, with many exceptions expressed in the 1829 Act itself or left extant from the previous law, to be removed step by step as opportunity arose. A steady diet of such questions took its place alongside major matters like the disestablishment of the Irish Church and the abolition of compulsory church rates to ensure that there was never a time when some aspect of the Church’s relation with the state was not in issue.

The very substantial changes to the Church-state relationship in all the facets outlined above are the backdrop to consideration of the legal structure of establishment in its narrow sense, the power of the secular organs of the state in the governance of the Church, the power to appoint senior clerics, to make rules for the Church, and to adjudicate upon disputes within it. There was periodic external pressure for disestablishment of course, and widespread internal discomfort at the erosion of the Church’s status. That shaded into acute dissatisfaction among some high-churchmen reacting against what they saw as the betrayal of the Church by Catholic emancipation in 1829, and the king’s unwillingness to use his coronation oath to prevent it. They abhorred also such further manifestations of state power as the reduction of Irish bishoprics in 1833. But despite pressures for disestablishment or for a measure of self-government the Church’s legal relationship with government and Parliament changed significantly in only one respect during our period, and that came with the permanent establishment of the Ecclesiastical Commissioners in 1836.

2. Internal Government: The Crown and the Church Commissioners

The Ecclesiastical Commissioners’ ostensible role was to manage the Church’s property. Deliberately to keep the Commons at arm’s length, they were invested with delegated legislative power, to be implemented through Orders-in-Council that needed only to be laid before Parliament.¹² In law the commissioners (p.389) possessed a set of statutory powers through which they could direct the various property-owning corporations that made up the Church of England. The effect, however, was to weld the Church into something like a single quasi-corporate entity, as the commissioners redistributed income and suppressed posts they thought no longer served the Church’s spiritual mission.¹³ Initially the commissioners’ strategy bore Sir Robert Peel’s imprint, their legitimacy executive rather than parliamentary. From 1843 the New Parishes Act directed their priorities towards the financing of new urban parishes at the expense of the augmentation of rural livings—legislative guidance, albeit one that again owed much to Peel.¹⁴

So to some extent the commissioners’ vision of a rejuvenated Church had to be shared by Parliament, if the commissioners were to have the powers they wanted. But once the legislation was passed the commissioners enjoyed considerable autonomy to mould the structure of the Church as they wished. Their composition was therefore crucial. Initially the commissioners had been a small and select partnership of Church and state, essentially nominees of the executive and the archbishops.¹⁵ High-church criticism, however, stimulated a very important reconstruction of the commission in 1840, by which it became a much larger body that included all the bishops.¹⁶ So far as its assets went, the Church thus became an organizational unity, with administrative power centralized, in practice, in the bishops collectively and in the bureaucracy that they, as commissioners, generated. It remained dependent on Parliament for augmentation of the commissioners’ statutory powers, but enjoyed substantial operational autonomy.

There was no similar autonomy over the appointment of Church leaders or, to that extent, over conformity to doctrine. The Crown continued to appoint bishops and archbishops much as it had always done. The Prime Minister made the decisions, led, abetted, or opposed, after the death of Prince Albert, by the Queen herself, who took her role as head of her Church very seriously. Melbourne was the last Prime Minister to make party political allegiance an explicit prerequisite for preferment, but political colour in a general sense continued as a relevant factor, weightier with some Prime Ministers than others.¹⁷ More importantly, Prime Ministers could, and did, develop their own religious policy, which from time to (p.390) time might cause acute controversy, doctrinal divisions within the church being endemic.

In 1847 that raised an important question of law when high-church opponents of Lord John Russell’s provocative nomination of Dr Hampden to the see of Hereford tried to wrest at least some of the process away from the secular state. They claimed that the penultimate step in the process, which was public confirmation of the appointment by the Archbishop of Canterbury in his court at Bow Church, should be an occasion for serious theological investigation of the nominee’s credentials, not a mere formality.¹⁸ Rebuffed by the archbishop’s legal assessor, they sought a mandamus from the Queen’s Bench that the archbishop must receive their objections to Dr Hampden and adjudicate. The claim was possible because the process was statutory, resting on the original Act of Henry VIII that removed the jurisdiction of the pope. If successful it might have seriously curtailed the Crown’s freedom of choice. Two judges, Coleridge and Patteson JJ, accepted the argument, agreeing that the Act’s silence in face of a long prior practice of spiritual confirmation by archbishops must be taken to have preserved it. Erle J. and Denman CJ, less unworldly, doubted that that was what Henry VIII had intended, and pointed also to the subsequent unbroken practice of unquestioning acceptance of Crown nominees.¹⁹ This deadlock was enough to discharge the application and preserve the unchallengeable discretion of the Crown. When next the question arose, in 1902, the Queen’s Bench refused the mandamus much more easily, in line with a general tendency by then to minimize the intrusion of common law courts.²⁰

3. Legislating for the Church: Convocations and Parliament

High-churchmen raised similar questions about the legislative branch. Parliament was, of course, omnicompetent. But long ago the two houses of Convocation legislated, making and amending canons for the Church. Inconveniently for advocates of autonomy, Convocation’s Acts had needed Crown assent, just like those of the two Houses of Parliament. And like Parliament, it could meet only by royal summons and was subject to royal prorogation. Unlike Parliament, however, Convocation had neither the power of the purse nor representative legitimacy to gain even indirect control of those prerogatives. Consequently, (p.391) after a particularly bitter session in 1717 it had been summoned only formally, thereafter existing in a state of serial prorogation save for an experimental session in 1741 and 1742.²¹

Nonetheless, Convocations did revive, albeit in a rather different form—one for each of the two provinces, rather than one for the whole Church. At first they met without Crown assent, a product of high-church outrage at the Gorham decision by the Judicial Committee of the Privy Council in 1850. Then they were legitimized by Lord Aberdeen, the Prime Minister, who from 1853 gave his cautious and circumscribed permission, initially for discussion only.²² All three common law courts had refused to be a lever in this revival. In the course of the Gorham litigation high-churchmen had sought a prohibition from each of them, arguing that the Henrican legislation gave jurisdiction to resolve the dispute between the Reverend Gorham and his bishop to the upper house of Convocation—the bishops. Each court had ruled instead that it lay with the essentially secular Judicial Committee.²³

Common law judges were also inclined to take a very narrow view of the legal effect of canons of the Church. It had long been established that canons bound neither the laity nor even the clergy in their temporal possessions.²⁴ But when, unusually, the Crown gave the revived Convocations permission to amend and replace four of the existing canons, some of the common law judges took an opportunity to say that the traditional common law view did not entail even that the canons bound the clergy on spiritual matters.²⁵

Despite the revival of the Convocations, Parliament remained the unrivalled legislature for the Church on all matters, including changes to liturgy. True, some modest recognition of Convocations’ existence and status could be detected by the contrast between the Clerical Subscription Act 1865, the Prayer Book (Table of Lessons) Act 1871, and the Act of Uniformity Amendment Act 1872. The first originated from a royal commission, and was taken directly to Parliament. The second also stemmed from a commission, but had in the meantime been taken to the revived Convocations for approval. The third went so far as to recite the role of the Convocations in its preamble, the Crown (i.e. the government) having (p.392) empowered the Convocations to frame resolutions consequent on the royal commission’s report.²⁶ The progression did not continue, however. The Public Worship Regulation Act of 1874, which was seen as an important measure of Church discipline, was passed without the Convocations’ concurrence. Proposals to give the Convocations delegated legislative powers subject to parliamentary supervision failed.²⁷ Instead the Church had still to ask Parliament to legislate for it, and when it did ‘government treated the Church’s legislative requests like those of any other major but private interest’—they had no special priority, but must take their chance through the lottery of private members’ bills.²⁸

At the end of the 1890s, and through into the early years of the twentieth century, bills on ceremonial were still being introduced to Parliament without Church consent. None passed, but there was not yet a consensus that none ought to pass unless they had the Church’s blessing. Substantial segments of the Commons retained the belief that the Church was a national institution to be guided by the people’s lay representatives in Parliament.²⁹ Reform of internal Church deliberation through the addition of laity to the Convocations (Canterbury 1886, York 1892) was too half-hearted to make a difference. However, formation of a more broadly based Representative Church Council in 1904 did eventually lead to the archbishops appointing a commission on Church-state relations.³⁰ That in turn led to the establishment of a new Church Assembly in 1917 which, after the war, Parliament thought fit to endow with delegated legislative powers.³¹ Parliamentary supremacy remained a reality long after our period ended, however, as demonstrated by the Commons’ refusal in 1927 and 1928 to pass the Assembly’s revised Prayer Book into law.

4. Adjudication: Courts Secular and Spiritual

The Church was not just established by law but structured by it too. Secular law and courts were fundamental to its operation in a way that they were not to the Catholic Church, which was authoritarian, or to the protestant dissenting churches, which were constructed on the voluntary principle. Of course, any religious society might find itself before a secular judge on a question of property, especially in cases of schism, and with serious consequences for the distribution (p.393) of spoils.³² Opportunities for intervention in the Church of England’s affairs were more numerous, however, and the intervention more intrusive. In part this was because the Henrican statutes establishing the Church conferred powers that like any other statutory powers were subject to jurisdictional control, as the challenge to Bishop Hampden’s appointment showed. There was obvious danger to the Church here as the statutes were very old, and had not been much litigated, if at all. Judges had room for interpolation of context, as the division in the Hampden case also shows, perhaps also for individual doctrinal preferences.³³ Coleridge J., who would have held for the complainants, was known to be sympathetic to the Tractarians who were opposing Hampden.

Further, patrons of livings and holders of benefices had long been treated as having individual property rights. Patrons had a right to present qualified persons for induction.³⁴ Once inducted, an incumbent enjoyed his parish as of right. Of course, bishops also had a right and a duty to satisfy themselves that presentees really were qualified, but too stringent an understanding of what should count as a qualification would detract from patrons’ rights. Bishops were responsible for the continuing orthodoxy of the ministers in their diocese, but, again, too rigorous an understanding of orthodoxy would subtract from the rights of incumbent and patron. These relationships were mediated through law in secular courts. A patron could bring a writ of quare impedit to a common law court if a bishop rejected his presentee, to have the adequacy of his reason tested.³⁵

Such was the pervasiveness of law that it was possible to argue that since this was a national church the laity had rights too, especially to have the national liturgy performed (and none other).³⁶ Indeed parliamentary supremacy over the Church made little sense unless that was so. This is not to say that a structure of (p.394) rights necessarily extended to all members of the Church. As law was the foundation, the distribution of authority depended upon the will of Parliament as expressed through statute, which might instead confer discretion. That is how courts interpreted bishops’ powers to license curates and lecturers (and a fortiori to admit applicants to holy orders), with the consequence that bishops could not be required to state their reasons for refusal, nor were their decisions subject to appeal to an ecclesiastical court.³⁷ But the courts were stern when rights were in issue, and not just when those were the property rights of patrons. They held that supplementary testimonials required by bishops from ministers seeking to transfer into their diocese were illegal, for example, undermining episcopal efforts to maintain purity of doctrine.³⁸

There were, of course, the ecclesiastical courts, which, viewed from the outside were ‘church courts’.³⁹ But from the inside they were courts; they administered law, not doctrine, and once appointed their judges were not amenable to episcopal (or any other) direction. In 1874 Archbishop Tait hoped to substitute episcopal authority for judicial in the matter of disciplining clergy, but failed.⁴⁰ So too the freedom of clergy to withhold the sacrament from persons whose morals they found offensive was limited by law, and when tested was construed strictly.⁴¹ In this sense even the ecclesiastical courts were secular courts, the state’s courts.

Those courts became a forum in which quite bitter disputes about the nature and direction of the Church, its structure of authority, and the nature of theological truth were fought out. Until 1832 the ultimate court of appeal from the network of local ecclesiastical courts was the High Court of Delegates. It had come to comprise some common law judges—none of whom knew any civil law—and a selection from whichever advocates from Doctors’ Commons had not been involved in the cause as judge or counsel, inevitably the junior and out of work. It was an easy target for Henry Brougham in his great law reform speech in 1828.⁴² Very few of its decisions, however, had had to address the relation between ecclesiastical law and theology that later became so contentious.⁴³ So no special provision was made for such cases when the court was abolished and its whole jurisdiction transferred to a redesigned Judicial Committee of the Privy (p.395) Council.⁴⁴