Copyright
Edward Augustus Freeman.

Disestablishment and disendowment, what are they? online

. (page 1 of 4)
Online LibraryEdward Augustus FreemanDisestablishment and disendowment, what are they? → online text (page 1 of 4)
Font size
QR-code for this ebook


DISESTABLISHMENT

AND

DISENDOWMENT.



DISESTABLISHMENT



AND



DISENDOWMENT,



WHAT ARE THEY?



BY



EDWARD A. FREEMAN, D.C.L., LL.D.

LATE FELLOW OF TRINITY COLLEGE, OXFORD.



REPRINTED WITH ADDITIONS
FROM THE PALL MALL GAZETTE.



"Ereorf <r0t Sevvbriis v6fwt. HEROD, vn. 104.



Uonfcon :
MACMILLAN AND CO.

1874.

[All Rights reserved.}



(JTamftrtBge:



FRINTED BY C. J. CLAY, M.A.
AT THE UNIVERSITY PRESS.



DISESTABLISHMENT

AND

DISENDOWMENT.

I.

WE have lately heard with one ear that the
disendowment of the Irish Church has as yet
brought no funds to the purposes to which its
surplus revenues are to be applied, and we have
lately heard with the other ear that the cry for the
disestablishment and disendowment of the English
Church is again rising as loudly as ever. This
then is not a bad time to stop and ask what the
words "disestablishment" and "disendowment"
really mean. And this question involves the
earlier one, What is the "establishment" and
the "endowment" of which "disestablishment"
and " disendowment " are the opposite ? The
answer to these questions involves an examination
F. i

2017255



DISESTABLISHMENT



of one or two common confusions by which the
subject is often clouded over.

First of all, there is a lurking unwillingness in
the disputants on both sides, as indeed there is
in most speakers on all subjects, to acknowledge
the simple principle that, in every political com-
munity, the supreme power of the State, wherever
that supreme power may be placed, may do what-
ever it thinks good. We say this, of course,
with the necessary limitations, both physical and
moral. A law may be, as we hold, unjust ; this
means that, if we were members of the assembly
in which that law was passed, we should vote
against it. Or, at the outside, it means that we
should deem it our duty to resist the law in
obedience to some supposed higher law. This is
all ; a man may suffer what he thinks a wrong at
the hands of the supreme power ; but that wrong
is something wholly different from a wrong done
by a private person. The difference is not merely
that redress may be had in the case of a wrong
done by a private person, while it cannot in the



AND DISENDOWMENT.



case of a wrong or alleged wrong done by the
supreme power. For it may happen that a private
man may by some act, as for instance by what
we think an unjust will, do us what we hold to
be a wrong, but for which there is no redress. All
acts of the supreme power come under this last
head. However much we may disapprove of
them and suffer from them, they answer, at the
worst, not to the act of the burglar or the forger,
but to the act of the father who bequeaths
something which he has a right to bequeath, but
bequeaths it in a way which some of his children
think unjust. Every act of the supreme power is
in its own nature lawful. The form of the supreme
power differs in different countries. In England it
is King, Lords, and Commons acting together. In
England then the act of the supreme power must
take the form of an Act of Parliament. An Act
of Parliament may be unjust, but it is unjust in
the same sense as the unjust will of the father,
not in the same sense as the act of the burglar
or forger, which is unlawful as well as unjust.

I 2



DISESTABLISHMENT



An Act of Parliament may be unjust, but it
cannot be unlawful. We mean, for instance to
take the extremest case of all that the most
unjust bill of attainder passed by a Tudor Parlia-
ment, though it was a crime in every member
who voted for it and in the King who gave his
assent to it, was a perfect justification for the
Sheriff, the executioner, and any one else who
acted ministerially in carrying it out. In this
sense the State may do anything and deal with
anything ; and, as it may deal with anything, so it
may deal with Churches and with all that belongs
to them. Disestablishment and disendowment
are therefore acts which may be either just or
unjust. If they cannot be shown to be for the
qommon good of the nation, they are unjust acts ;
but they are acts which, if done by the supreme
power, are perfectly lawful. They are acts which
it is open to King, Lords, and Commons to do,
whenever they think good.

It is necessary to lay down this principle,
truism as it may sound, because it is practically



AND DISENDOWMENT.



set aside by the disputants on both sides, when-
ever the question of disestablishment and disen-
dowment is argued. The one true principle is that
the State, meaning by the State, King, Lords, and
Commons, has the same right to deal with the
Church which it has to deal with anything else.
This principle is openly denied by those who raise
the cry of " sacrilege " and the like, and who
say in effect that the Church and all that belongs
to it is something too sacred for the State to
meddle with at all. But the principle is also less
openly set aside by those disputants on the other
side who rest the right of the State to meddle
with Church property and the like, not on the
general right of the State to do anything, but
on some supposed special right to deal with
Church property which it has not in regard to
other property. One side says that the State
may meddle with Church property, because it is
"national property;" the other side says that the
State may not meddle with Church property, be-
cause it is something too sacred to be meddled



DISESTABLISHMENT



with. Yet it is perfectly certain, on the one hand,
that Church property is not national property in
the sense which the disputants mean, and it is
equally certain, on the other hand, that no power
can so tie up or dedicate anything as to bar the
right of the supreme power to deal with it. Both
these misconceptions on opposite sides must be
got rid of before the question can be fairly argued.
The true way of looking at the matter is simply
this. The State has the same power to deal with
Church property which it has to deal with any other
property, neither more nor less. Whenever the
State deems that the rights either of individuals
or of corporations ought to give way to the general
interest of the whole community, it has a right
to decree that they shall give way to it. We talk
of the sacredness of private property ; and against
everything else it is sacred ; but against an Act of
Parliament it has no sacredness at all. Every day
we see private property confiscated for railways
or public improvements of any kind. We use the
word " confiscated " in its proper sense, not in the



AND DISENDOWMENT.



sense in which it has been often used by Mr Dis-
raeli and others when they wished to put a measure
in a bad light by giving it what they thought an ugly
name. The word "confiscation" has come to have
an ugly sound, because it is in no case a pleasant
process, and because in vulgar use the word has got
a wrong meaning. " Confiscation " is vulgarly used
to mean "robbery." A man has been known to com-
plain that another man has "confiscated his hat."
Then of course, when a word has once got this kind
of meaning, it tells, in Parliament or elsewhere, to
say that a certain measure is a "measure of confis-
cation." But the word has a meaning of its own, a
meaning which is wanted in this discussion, and, for
the present purpose, it must be recovered from Mr
Disraeli's abuse of it to be used in its proper mean-
ing. Confiscation is an act of the State and of the
State only. It is the taking of property by the
State. It is a perfectly colourless word, which does
not rule whether such taking be just or unjust.
When a magistrate inflicts a fine, he does an act of
confiscation. So, when a man's land is taken from



8 DISESTABLISHMENT

him by Act of Parliament because it is wanted for
a railway, his land is confiscated. To be sure,
he gets compensation ; but the land may be taken
from him quite against his will, and the compen-
sation may be one which he thinks quite inade-
quate. It is plain that the power which takes
away the land and gives compensation might also,
if it chose, take away the land without giving any
compensation. The land is equally taken, equally
confiscated, in either case. It is simply a feeling
of natural justice which orders that, when it is
taken, the owner shall have something given to
him instead. An Act of Parliament which should
take away a man's land without compensation
would be unjust ; that is to say, every well-disposed
member would vote against it. But it would be
lawful ; that is to say, no blame would attach to
those who carried it out and acted upon it.

The one sound principle then is that the State
may, when it sees good reason for doing so, take or
confiscate any property of any kind. From this
rule property given to ecclesiastical purposes can



AND DISENDOWMENT.



claim no exemption. It is liable, on just and
sufficient cause, to be taken and applied to some
other purpose, and of such just and sufficient cause
the State itself is the only judge. The power of
the State to deal with Church property is nothing
special with regard to that kind of property ; it
is simply one branch of its right to deal with pro-
perty of every kind. But it will be asked, Is there
not a wide difference between private property and
corporate property? Has not the State a right
to deal with corporate property which it has not
to deal with private property ? In strictness there
is no difference as to the right itself, but there is
a difference of great importance as to the exercise
of that right. That is to say, the cases in which
it is just and expedient to meddle with private
property come much more seldom than the cases
in which it is just and expedient to meddle with
corporate property. In a settled state of things,
the State is hardly ever called on to meddle with
private property, except either at the request of
those concerned or in certain well-understood cases,



IO DISESTABLISHMENT

like taking land for a railway. The cases where
it is just and expedient to meddle with corporate
property, temporal or ecclesiastical, come much
oftener. But the inherent right is the same in both
cases, and of the justice and expediency of the
act in either case the State itself is the only
judge. And when we talk of the wide difference
between private property and corporate property, it
is well to remember that, if a corporation, sole or
aggregate, is an artificial creation of the law, the
tying up of property in tail, or indeed any control
exercised by a man over his goods after he is dead,
is an artificial creation of the law just as much.

This is the true ground on which to justify
alienations or rearrangements of ecclesiastical pro-
perty by Act of Parliament, or by the supreme
power of any country, whatever that supreme power
may be. Church property is not " national pro-
perty," except in the same sense in which all
property is national property. It is not " national
property " in the only strict sense of those words.
It is not folkland, ager publicus, property of which



AND DISENDOWMENT. II

the nation is not only sovereign but landlord.
It ceased to be so whenever it passed into the
hands of the ecclesiastical corporations or into
the hands of those who founded the ecclesiastical
corporations. For here comes in another con-
fusion. People talk as if " Church property" was
the property of one vast corporation called "the
Church." In truth it is simply the property of
the several local churches, the ecclesiastical cor-
porations, sole and aggregate, bishops, chapters,
rectors and vicars, or any other. The Church of
England, as a single body, has no property ;
the property belongs to the church of Canter-
bury, the church of Westminster, the church of
Little Peddlington, or any other. This phrase is
one of the commonest in old history and records,
but it seems now to be misunderstood. The King
by his coronation oath binds himself to respect the
rights of the "churches" in. his kingdom. That
means that he will not unlawfully disturb the pro-
perty, the patronage, or any other right lawfully
held by the Archbishop of Canterbury, the Dean



12 DISESTABLISHMENT

and Chapter of Westminster, the Rector of Little
Peddlington, or any other ecclesiastical corporation,
sole or aggregate. But this phrase has been so
misunderstood that, in the debates on the Irish
Church, a distinguished lawyer argued that, as the
King bound himself to protect, not one " Church,"
but "churches" in the plural, it meant that he
bound himself to protect the rights of the Church
of Ireland as well as those of the Church of England.
We must fully take in the fact that Church property
is not the property of one vast body, but of various
local bodies scattered up and down the country.
These local bodies, forming corporations sole or
aggregate, hold estates which have been acquired
at sundry times and in divers manners from the
first preaching of Christianity to the English till
now. They are held by all manner of tenures,
from the oldest to the newest. One ecclesiastical
person or body may hold a piece of land granted
by King ^Ethelberht ; another may have a stipend
from the Ecclesiastical Commissioners which was
paid for the first time last quarter-day. The tenure



AND DISENDOWMENT. 13

may be any kind of tenure known to the law.
But all this does not make the property of these
corporations " national property " in the sense in
which the Crown lands and the money which
comes in from the taxes are national property.
Nor, as we have before now seen it put, is the
Church "trustee for the nation" surely the oddest
notion of cestui que trust to be found anywhere.
The ecclesiastical corporations hold their property
by the same right as any other holders of property.
If some of it was got ages ago by corrupt means,
so a great deal of private property has been got
by corrupt means. If one king or other powerful
man gave lands to a bishopric or a monastery ;
another, or very often the same, gave lands to
his favourites or his mistresses. We need not
ask what was the motive of the first grant in
either case, provided the present owner can show
a legal title. That legal title is good in both cases
against any power except an Act of Parliament.
An Act of Parliament may set aside either. The
only difference is that the cases in which it is



14 DISESTABLISHMENT

right and expedient for Parliament to upset private
titles to property are much less common than
the cases in which it is right and expedient for
Parliament to upset corporate titles.

In short, if we wish to argue this question on
its true ground, we must put out of sight the
popular notion that, at some time or other, the
State determined to make a general national
endowment of religion. And we must also put
out of sight the other popular notion that, at some
time or other, the State took certain funds from
one religious body and gave them to another.
Neither of these things ever happened. If there
ever was a time when the State determined on a
general national establishment of religion, it must
have been at the time of the conversion of the
English nation to Christianity. But the conversion
of England took place gradually, when there was
no such thing as an English nation capable of
a national act. The land was still cut up into
small kingdoms, and Kent had been Christian
for some generations at a time when -Sussex still



AND DISENDOWMENT. 15

remained heathen. If any act which could be
called a systematic establishment and endowment
of the Church ever took place anywhere, it cer-
tainly took place in each particular kingdom for
itself, not in England as a whole. The churches of
Canterbury and Rochester undoubtedly held lands
while men in Sussex still worshipped Woden. But
it would be an abuse of language to apply such
words as systematic establishment and endowment
to the irregular process by which the ecclesiastical
corporations received their possessions. The pro-
cess began in the earliest times, and it has gone on
ever since. And nothing was done systematically
at any time. This king or that earl founded or
enriched this or that church in which he felt a
special interest ; and from this it naturally followed
that one church was much more richly endowed than
another. The nearest approach to a regular general
endowment is the tithe, and this is not a very near
approach. The tithe can hardly be said to have been
granted by the State. The state of the case rather
is that the Church preached the payment of tithe



1 6 DISESTABLISHMENT

as a duty, and that the State gradually came to
enforce the duty by legal sanctions. But it is only
by the Tithe Commutation &ct that tithe has been
put wholly on the same level as other property.
As long as tithe could be' recovered by a process in
an ecclesiastical court, there was still something of
its original nature hanging about it. The theory of
the ecclesiastical courts is that they act pro salute
anima, for the soul's health of the person brought
before the court. The aim of their punishment
is the reformation of the offender. In theory the
tithe-steal er was brought before the court, not that
the defrauded rector might recover his property,
but that the man who had sinned by not paying
his tithe might be brought to a better frame of
mind. So with regard to the church-rate, which
was a payment for ecclesiastical purposes, though
it was not in any strict sense Church property or
property at all. Here too the old process was
through the ecclesiastical court, with the same
theoretical object, the reformation of the defaulter.
In neither case did the State strictly make a grant ;



AND DISENDOWMENT.



it rather enforced the decree of the Church by the
secular arm. And as to tithe, it should also be
remembered that, though the duty of paying tithe
was taught very early, yet for a long time the tithe-
payer had a good deal of choice as to the particular
ecclesiastical body to which he would pay his tithe.
Nothing was more common than an arbitrary grant
of tithe to this or that religious house. In short,
the ecclesiastical endowments of England have
grown up, like everything else in England, bit by
bit. A number of ecclesiastical corporations have
been endowed at all manner of times and in all
manner of ways ; but there was no one particular
moment when the State of England determined to
endow one general religious body called the Church
of England.

And if there was no one particular moment
when, as many people fancy, the State endowed
the Church by a deliberate act, still less was there
any moment when the State, as many people
fancy, took the Church property from one religious
body and gave it to another. The whole argument
F. 2



1 8 DISESTABLISHMENT

must assume, because the facts of history compel
us to assume, the absolute identity of the Church
of England after the Reformation with the Church
of England before the Reformation. We are not
talking theology; it is quite possible to argue,
either from the Roman Catholic or from the Pro-
testant side, that the Reformation really made so
great a theological change that the religious body
which existed after those changes cannot be said to
be the same religious body as that which existed
before them. With this theological argument, from
whichever side it comes, we have nothing whatever
to do. Our position is a much humbler one. It is
simply that, whether the religious body did or did
not so change theologically as no longer to be the
same, yet, as a matter of law and history, as a
matter of plain fact, there was no taking from
one religious body and giving to another. We
must remember that there was not in England,
as some people seem to think and as there
really was in some foreign countries, some one act
done at a definite time called the " Reformation."



AND DISENDOWMENT. 1 9

Under the name of the Reformation we jumble
together a great number of changes spread over
many years. In popular language the Reformation
sometimes means the throwing off of the authority
of the Pope, sometimes the suppression of the
monasteries, sometimes the actual religious changes,
the putting forth of the English Prayer-Book and
the Articles of Religion. Here are three sets of
changes, all of which are undoubtedly connected as
results of a general spirit of change; but, as a mat-
ter of fact, they were acts done by different people
at different times, and those who, at any stage,
wrought one change had no thought that the others
would follow. The final result might be that theo-
logical continuity was broken, but no act was done
by which legal and historical continuity was broken.
Any lawyer must know that, though Pole succeeded
Cranmer and Parker succeeded Pole, yet nothing
was done to break the uninterrupted succession of
the Archbishopric of Canterbury as a corporation
sole in the eye of the law. This is all that we
mean ; in the sixteenth century, as at several other

23



2O DISESTABLISHMENT

times before and since, laws were made to which
the holders of ecclesiastical benefices had to conform
under pain of losing those benefices. As a matter
of fact, the great mass of their holders did con-
form through all changes. There was much less
than people commonly think even of taking from
one person and giving to another; and the general
taking from one religious body and giving to
another, which many people fancy took place under
Henry the Eighth or Elizabeth, simply never hap-
pened at all. In this last statement we wish to be
thoroughly well understood. We are not wishing
in any way to undervalue the greatness either of
the direct theological change or of the indirect
changes of all kinds which followed on the long
series of events known as the English Reformation.
In a general view of history those changes cannot
be rated too highly. They were changes far greater
than those who made them dreamed of. But we
are dealing with a dry matter of fact and of law.
There was no one particular moment, called the
Reformation, at which the State of England deter-



AND DISENDOWMENT. 21

mined to take property from one Church or set
of people and to give it to another. As there was
no systematic endowment in the sixth or seventh
century, still less was there any systematic disen-
dowment and re-endowment in the sixteenth.

Disendowment then simply means taking away
or confiscating the property of ecclesiastical corpo-
rations by that authority which alone has the right
to confiscate any prope'rty, the supreme authority
of Parliament. This right of disendowment as of
doing anything is inherent in the supreme power.
In our own country it has been exercised over and
over again in all ages, but most notably and on
the greatest scale in the reigns of Edward the
Second, Henry the Fifth, Henry the Eighth,
Edward the Sixth, Elizabeth, and Victoria. And
it is only out of deference to possible prejudices
that we do not add the Long Parliament to our list.
For though, under the Long Parliament, the bishops
and chapters were suppressed, and their lands were
confiscated, yet the continuity of the parochial
incumbents was not broken; their property was not



22 DISESTABLISHMENT

confiscated, nor were the rights of patrons taken
away. In this way the temporary suppression of
bishops and chapters in the seventeenth century
is analogous to the great suppression of monasteries
under Henry the Eighth, and to the suppression
of colleges and chantries under Edward the Sixth.
In all these cases some ecclesiastical corporations,
sometimes a whole class of ecclesiastical corpora-
tions, sometimes, as in the last case of all, all the
ecclesiastical corporations within one part of the
kingdom, were suppressed, and their property was
applied as the supreme power thought good. The
suppressions under Henry the Fifth and under
Victoria, the suppression of the alien priories and
that of all ecclesiastical corporations in Ireland,
stand out among all the others for the purity of
motive which led to the confiscation and for the
wise purposes to which the confiscated property
was applied. But the legal process is the same in
all. We may think that under Henry the Fifth
and under Victoria the confiscated property was
well applied, and that under Henry the Eighth



AND DISENDOWMENT. 2 3

it was badly applied ; but that is not to the pur-
pose ; the right is the same in either case. In all
these cases alike the supreme power has freely
exercised a right which is inherent in it as the
supreme power, the right to deal with ecclesiastical


1 3 4

Online LibraryEdward Augustus FreemanDisestablishment and disendowment, what are they? → online text (page 1 of 4)