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Removal of Religious Disqualifications, 105
Established Church, and the ministers of no other body, are ineligible for the House of Commons. There are a variety of cases in which a legal presumption is raised that a citizen is a member of the Established Church, while no such presumption would be raised in favour of any other religious body. So long as this partiality exists, whatever may be its political recommendations, it is impossible to say that absolute religious equality is contemplated by the English Constitution. Nevertheless, the history of the present and the two preceding reigns is marked by a series of parliamentary efforts to abridge the inequalities which the situation of the Established Church had incidentally brought about, and which had seemed unjust and vexatious in proportion to the numerical increase of the non-conforming bodies, and to the general advance of doctrines favouring political freedom at every point. Some of these efforts have gone a length which to those who recall the theoretical scruples of George III. with regard to his coronation oath must seem startling and unprecedented. Among these the disestablishment of the Irish Church in 1869, the abolition of Church-rates in 1868, and the passing of the University Tests Act in 1871,—which, reciting that the benefits of the Universities should be 'fully accessible to the nation,' enacted that persons taking lay academical degrees or holding lay academical or collegiate offices in the Universities of Oxford, Cambridge, or Durham, should not be required to subscribe any religious test or formulary,—are among the most conspicuous. Nor must the institution of civil marriages by the Acts of 1837 and 1852, and the abolition of the old ecclesiastical jurisdiction in reference to Divorce and Wills by the Act of 1857, and the substitution of a secular Court and Office presided over by a lay Judge, be regarded as events less significant. All these measures disclose a determination on the part of Parliament to treat the Established Church no longer as a sacred citadel which cannot be assaulted without incurring the reproach of profanation, but as an existing instrument for the attainment of certain intelligible ends, which, like other moral or political instruments, is susceptible of any amount of sharpening, cleansing, or recasting at the hands of Parliament, or, if these processes are insufficient, of being entirely cast on one side. It is impossible to attend to the current debates in the Houses of Parliament on such questions as the extension of the episcopate, the increased secularisation of the Universities and other places of education, and the application of ecclesiastical edifices and lands to the use of persons not within the communion of the Church, without pereeiving that the sole argument held to be of any weight on either side is that of general and well-understood utility. There is surely in this a new constitutional stand-point in relation to all religious disqualifications, though it may be long before political facts adjust themselves to the constitutional principle. That the Established Church of England is destined to undergo many a transformation in accordance with the demands, not only of political justice, but of practical necessities, might be presumed from the very partial area,—namely, that of England itself and a few of the smaller dependencies,—in which it exists. In Scotland a different Church is established ; in Ireland, no Church at all; and in India and the Colonies the most extreme principles of all that can be meant by religious toleration, freedom, and equality, are recognised to the full. Reform of Charters and Endowments. 107
Thus, the only ground for maintaining what is essential in the notion of an Established Church of England must be that of some alleged peculiarity in English historical traditions, and in the actual political situation of the country. But historical traditions are most fertile in producing novel facts, and in instantly assimilating them in such a way as to impart to them an authority of their own; while political situations are constantly changing, and can therefore afford no guarantee whatever for the stability of any particular institution.
2. It is scarcely possible to appreciate the new attitude which Parliament has assumed towards endowments and endowed institutions generally, without studying some of the deep-rooted objections or prejudices by which parliamentary activity in this matter has been hindered. These objections still exist in a weakened form in many respectable quarters; but the whole force of them can only be understood by attending to the grounds upon which any legislative interference whatever was resisted, at the time when the passing of the Reform Act of 1832 had prepared men's minds for novel and courageous experiments which at an earlier date would have seemed, even to the most sanguine minds, to be of a hopeless kind. It was said generally, in answer to any scheme for amending endowments, that the existing law, as administered by the Court of Chancery and the Ecclesiastical Courts, provided sufficiently against scandalous abuses, and against any signal departure from the original purpose of the trust as declared by its founder; that the intention of the founder, strictly interpreted in accordance with the current modes of legal interpretation, ought, if the national good faith were to be maintained in its integrity, always to prevail, in the face of any new aims or purposes which the requirements of the present age might seem to suggest; that if this intention were liable to be overruled by legislative interference all security for property itself was gone; and that the casual and temporary advantages, which might be purchased by a new adjustment of a trust, would be dearly paid for at the price of discouraging all endowments for the future, and of introducing an instability in the most solid parts of the framework of the nation which could not be regarded without serious apprehension. These arguments were met, not by ignoring their reality, nor by denying their cogency within the area to which they truly applied; but it was said that there were large classes of endowed institutions, the abuses and corruption of which were wholly beyond the power of the existing law to reach; that the legal rules for interpreting the intention of founders, being applicable mainly to the actual language used in wills and deeds, were wholly inadequate to determine the real spirit and meaning of the foundation in a state of society which the founders could never have contemplated; and that, without in the least degree weakening the confidence which future testators would have in their general designs being strictly complied with, it was yet within the power of legislative art to reconstruct all existing endowments, especially those of ancient date, in such a way as to maintain all that was most characteristic in the wishes of the founders, and at the same time to confer on the objects of their munificence a far higher advantage than had long been possible. The question thus ultimately turned on matters of fact,—that is, on The Ecclesiastical Commission. 109
what were the kind and amount of abuses to be remedied, on the nature and limits of the remedies proposed, and on the instrumentality of which the Legislature could avail itself for the purpose in view. The answer to the question is contained in the history of the passing of the various measures of the present and the preceding reign, for the reform of (1) ecclesiastical and religious foundations, (2) educational institutions, (3) endowed charities, and, (-4) municipal corporations.
(1) The internal reform of the Established Church of England, so far as the Legislature could be concerned with it, has been proceeded with in a series of measures of which the first, and perhaps the most important, is the Act of 1836 for the incorporation of Ecclesiastical Commissioners, who should have power to prepare schemes for carrying into effect recommendations already made by them under a Commission of the previous year. The constitution of the Ecclesiastical Commission has been varied by a series of Acts during the present reign, and the Commission has now become a permanent part of the structure of the ecclesiastical establishment. The problem to be dealt with in the case of the Church of England was a peculiar one, and of a kind which had no analogy elsewhere. The Church of England is not a legal corporation, nor even an aggregate company, partnership, or voluntary association of persons which might for some purposes have a unity of personality before the law. So far as the law and the Legislature are concerned, the Church of England is a mere designation of an ideal unity, which manifests itself concretely in a vast number of distinct corporations, sole and aggregate, a large quantity of landed property