Comma for either/or — dharma, courage. Spelling forgiving — corage finds courage.

    Lectures on the Relation between Law and Public Opinion in England

    A.: The Course of Legislative Opinion

    A. V. Dicey

    In the atlas

    30 min

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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