Establishment and Toleration:
The British Pattern of Secularisation
Reid Mortensen
B. Com. (Hons); LL.B. (Hons) (Qld). Lecturer in Law, T.C. Beirne School of Law,
University of Queensland.
The pattern of secularisation in Great Britain has been described as the partial dislodgement of the politico-religious establishment by substantial dissent. 1 This pattern primarily treats secularisation as the increasing differentiation of church and state, and it is
intended in this article to show how it is reflected in legal developments in England and
Scotland in the period from 1662 to the mid-nineteenth century. I shall discuss first the
territorial monopoly of Anglicanism in both countries from 1662 to 1689; secondly, the
Glorious Revolution settlement which dislodged this Anglican monopoly; and thirdly,
the extension of religious toleration into the mid-nineteenth century. In outlining the pattern of constitutional secularisation in Great Britain, I shall explain how the Glorious
Revolution settlement introduced the principle of religious toleration and the Reformation doctrine of two kingdoms as potential secularising agents; and also the effect the former had in enabling the constitution to secularise significantly without changing its basic
composition as an organic evolving entity.
The Territorial Monopoly of Anglicanism, 1662-89
The Restoration of Charles II (1630-85; King defacto 1660-85) revitalised the doctrinal
and political strength of Anglicanism. In the 1640s and 1650s, the Church of England had
been required to abandon the episcopacy and adopt an inexact Presbyterianism. Cromwell's laissezjaire policy on religion enabled Protestant sects, for example, Presbyterians, Independents (congregationalists), Baptists, and Quakers, to multiply, but in its state
of Angst, the Church of England generally accommodated them. Faced with religious
pluralism and a relatively heterogeneous Church, in the Declaration ofBreda, (1660), the
exiled Charles promised, subject to the approval of Parliament, 'a liberty to tender consciences, and that no man shall be disquieted or called in question for differences of opinion in matters ofreligion which do not disturb the peace of the kingdom' . Charles secured
the Restoration on the terms of the Declaration, but Parliament never presented to him a
toleration measure. The Peace of Westphalia (1648) had settled the principle that a European prince might assert a religious monopoly as a matter of domestic right, cuius regio
eius religio. In Restoration England conditions emerged for Parliament to establish an
Anglican monopoly. Anglican interests progressively obtained greater control in the Parliaments of 1660-61. The bishops were restored to the House of Lords in 1661,2 and in
Anglican theology their position was increasingly being thought to be necessary to true
religion.
This monopoly centred on the Uniformity Act of 1662. 3 Under the Protestant hegemony set in previous Uniformity Acts,4 the Church of England still managed to comprehend most existing Protestant parties, but the Act of 1662 contained demands that the
1
2
3
4
D. Martin, A General Theory of Secularization (Oxford: Basil Blackwell, 1978), 5.
13 Ch.2 stl c2.
14 Ch.2 c4.
2&3 Edw. 6 cl; 5&6 Edw. 6 cl; 1 Eliz. 1 c2.
186
Reid Mortensen
clergy be strictly Anglican, and provisions objectionable to other Protestants. It provided
that all clergy were to use the revised Book ofCommon Prayer, including the ceremonial
prescriptions other Protestants found offensive, and were publicly to declare their assent
to all things it contained or be ejected. In addition, after Saint Bartholomew's Day, 24 August 1662, only a minister ordained by a bishop could hold a benefice, an ecclesiastical
living. Finally, all clergy were to deny the Solemn League and Covenant of 1643, a
pledge for the union of England, Scotland and Ireland under a Presbyterian establishment. Seven hundred and sixty clergy already had been ejected in 1660-62 and, despite negotiations with the King for indulgences from the Act, possibly another 2000
Presbyterians, Independents and Puritans had surrendered their pulpits by Saint
Bartholomew's Day. In 1663 the ~stries Acts was passed to require all vestrymen also to
swear an oath to 'conforme to the Liturgy of the Church of England'. In consequence of
the ejections the established church was rendered less Protestant. Furthermore, although
differences between Protestant parties could be traced from the Reformation, the Uniformity Act formalised them and seemed to have made dissent permanent. True, only a
small proportion of the population did not conform. In 1676 a Church of England census
revealed only about 108000 freeholding Protestant dissenters and 14000 Catholics.6
However, the extent and threat of religious pluralism was significant enough to attract legal penalties, for Protestant dissenters the Clarendon Code, and for Catholics the recusancy legislation and the Test Acts.
(a) The Clarendon Code
The Clarendon Code comprised legislation passed between 1661 and 1670, under which
the Anglican settlement was made exclusive through the imposition of penalties on other
Protestants. It was named after the Earl of Clarendon L.C. (1609-74; LC, de facto 166067), although he probably supported a more compromising policy than that instituted
through the Code. Charles, a Catholic sympathiser, probably only assented to the Code
because it was a condition to being voted supply.
In addition to the Uniformity Act and the Vestries Act, the Clarendon Code included
measures directed against the civic privileges, corporate life and education of Protestant
dissenters. Partially because radical Protestantism and republicanism had tended to concentrate in the boroughs, measures were introduced to reduce dissenters' influence in local government. Parliament passed the first of these, the Corporation Act of 1661,7 to
secure royal control over the boroughs and the election of borough members to the CommoDS. The Corporation Act provided for officers of cities, boroughs and corporations to
swear it was illegal to take up arms against the King and to hold to the Solemn League
and Covenant. It also contained a famous proviso, probably at the behest of the bishops
in the Lords, excluding from office in any city, borough or corporation any person who,
within one year before election, had not taken the eucharist according to the rites of the
Church of England. Commissioners were appointed to remove officers who refused to
take the oaths. Their powers expired in 1663, but the sacramental test remained. It was
sometimes used as a pretext to avoid the burdens attached to civic responsibility, but was
also exploited to the detriment of dissenters to raise additional revenue for the local
authority. The Five Mile Act of 16658 also included measures to reduce dissenters' influence in the boroughs. It provided a dissenting preacher was not to come within five miles
of a corporate town, or of a parish where he had been incumbent before the ejections of
5
6
7
8
15Ch.2c5.
J.P. Kenyon, The Stuart Constitution 1603-1688 (Cambridge: The University Press 1966),451.
13 Ch.2 s12 cl.
17Ch.2c2.
The Br/t/sh Pattern of secular/sat/on
187
1662, without swearing it was unlawful to take up arms against the King or to change the
church settlement.
In the second place, preaching, teaching and assembly were forbidden to dissenters. It
was already possible to proceed according to the canon law in the ecclesiastical courts
against dissenters' meetings9 and schools 10 and, under the Uniformity Act, a schoolteacher, tutor or lecturer required a bishop's licence. The Five Mile Act also provided a
dissenter was not to conduct or to teach in a school, and thereby deprived many an educated dissenter and an ejected minister of a lawful source of income. In 1664 Parliament
had also passed the Conventicle Act11 to meet the perceived political threat of subversive
dissenting assemblies. Some extreme Protestant sects, such as the fifth monarchists,
maintained beliefs clearly dangerous to any constitution. 12 These certainly justified close
surveillance, but the Conventicle Act applied the same policy to the ejected Presbyterians
and Independents. It provided it was an offence to attend any meeting of five or more persons 'under colour or pretence of any Exercise of Religion in other manner than is allowed by the Liturgy or practise of the Church of England' , and was punishable on a third
conviction by transportation for seven years or a fine of £ 100. The Act of 1664 expired in
1668, but was re-enacted in 1670. 13 The Act of 1670 made it an additional offence to
preach or teach at a meeting. It was followed by a vicious campaign to suppress dissenters' meetings, of which the City of London's prosecution of the Quaker William Penn
(1644-1718) is a notorious example. 14 Otherwise it is difficult to assess how stringently
the Conventicle Acts were applied. Hale CB was reported to have acquitted Quakers
charged with holding meetings because they were not seditiouS. 15 There also appear to be
implications in the Act of 1670 that local constabulary were often reluctant to enforce the
law. Nevertheless, the Conventicle Acts often were enforced maliciously, and many dissenters were imprisoned and left to die there.
The Clarendon Code was intended for Protestant dissenters. Indeed the House of
Commons declared in 1668 that the Conventicle Act should not be applied against Catholics. In the 1670s and 1680s however, measures for the toleration of Protestant dissenters
received serious consideration, and the Parliament of 1679-81 settled a Toleration Bill on
which the Toleration Act was later modelled. Parliament then began to direct more attention to Catholics, particularly once the Popish Plot (1678) catalysed deep suspicions of
Catholic sedition. In contrast, Charles II had Catholic sympathies and James II & VII
(1633-1701; King de facto 1685-88) converted to Catholicism in 1668-69. Charles, however, had shrewdly controlled the tensions in religious policy between King and Parliament. James' clumsy politics unleashed them.
(b) The Recusancy Legislation and the Test Acts
There was already a comprehensive scheme of penalties for Catholic practices in Elizabethan and early Stuart recusancy legislation. It depended heavily on the identification of
a person as a recusant - one who did not attend the parish church. Protestant dissenters
naturally could also be recusants, but the legislation was clearly directed at Catholics.
The recusancy legislation contained a scheme of penalties which progressively became more severe as the recusant's practices became more ardently Catholic. It began
with the offence of not attending the parish church. If absent on a Sunday or a holy day,
9 See Grove v. Elliot (1670) 2 Vent. 41.
10 Cory v. Pepper (1678) 2 Lev. 222; cf Chedwick v. Hughes (1698) Carth. 464; Oldfield v. Raines (1698) 12
Mod. 192.
11 16 Ch.2 c4.
12 eg R v. James (1661) 6 St. Tr. 67.
13 Conventicle Act 1670 (22 Ch.2 cl).
14 R v. Penn & Mead (1670) 6 St. Tr. 951.
15 E. Heward, Matthew Hale (London: Robert Hale 1972), 68.
788
Reid Mortensen
the recusant was to pay a fine of 12d,I6 and if absent for a month, to pay a fine of £20 or
else forfeit all goods and two-thirds of all lands or be exiled. I7 The corporate life of
Catholics was also penalised. It was an offence to attend mass. I8 An act of 1581 provided
a person could not employ a recusant schoolmaster, 19 and in response Catholics sent children to school on the continent. This also became an offence20 and could disqualify the
child from any inheritance. 21 It was an offence to import Catholic literature and religious
emblems.22 In addition, Catholics were disqualified from entering public life. A convicted recusant could not practise law or medicine, hold a commission or exercise any
public office. 23 Capital penalties were reserved for priests, proselytisers and converts. In
1581 it was made a capital offence to persuade others to convert to Catholicism in order
to withdraw them 'from their naturall Obedience to her Majestie' .24 In 1585 it was provided a priest could be executed as a traitor and a person harbouring a priest hanged as a
felon. 25 In 1606 it was made a capital offence to be a convert to Catholicism. 26
Until the Popish Plot it seems this dangerous legislation was enforced sparingly: no
priests were executed in 1660-78. However, eighteen priests were executed in 1678-81
and others died in prison.
King James' use of the controversial prerogative powers to suspend and dispense with
the operation of legislation to provide relief for Catholics inevitably propelled the Catholic question into the front of the constitutional struggles between King and Parliament
which the Civil War had failed to resolve. In 1672 Charles had attempted to suspend the
Clarendon Code and the recusancy legislation. Parliament forced him to cancel the Indulgence the next year and countered with the first Test Act27 which Lord Macaulay dubbed
'that absurd and odious test. 28 It contained three tests to ensure a Catholic could not be a
crown officer, or employed by the King or the Duke of York within thirty miles of London. Each such officer or employee was to swear an oath of allegiance set out in the Recusancy Act of 1606, to take the eucharist according to the rites of the Church of England
and to make a declaration denying belief in the doctrine of transubstantiation (the exclusively Catholic doctrine that the body and blood of Christ are really present in the elements of the eucharist). In 1678 the public hysteria following the Popish Plot enabled the
emerging Whigs to carry a second Test Act29 through Parliament. It provided that a member of Parliament was to declare his denial of the doctrine of transubstantiation, the adoration of Mary and the saints and the sacrifice of the mass, and effectively barred a
Catholic from any seat in either the Commons or Lords. James, as Duke of York, was expressly exempted, but even this concession was only passed through the Commons by a
majority of two votes. 30 His succession to the joint thrones as James II & VII brought the
conflict to a head. In Godden v. Hales 31 he arranged for a stacked Court of King's Bench
to hold that he could dispense with the operation of the Test Act of 1673. He issued an In-
16
17
18
19
20
21
22
23
24
25
26
21
s3 Uniformity Act 1558; e.g. Britton v. Standish (1705) 6 Mod. 188; s18, 3 lac. 1 c4.
s4, 23 Eliz. 1 cl; s4, 29 Eliz. 1 c6; s2, 35 Eliz. 1 cl; ss 5 & 6, 3 lac. 1 c4.
s2, 23 Eliz. t ct.
s5, 23 Eliz. 1 cl.
s5, 27 Eliz. 1 cl; s5, 1 lac. 1 c4; s11, 3 lac. 1 c5; sl, 3 Ch. 1 c2.
sll, 3 lac. 1 c5.
s15, 3 lac. 1 c5.
ss 6 & 7, 3 lac. 1 c5.
sl, 23 Eliz. 1 cl.
s2, 27 Eliz. 1 c2.
s14, 3 lac. I c4.
25 Ch.2 c2.
28 Macaulay, The History of England (Harmondsworth: Penguin, 1979),547.
29 30Ch.2 cl.
30 Kenyon, supra note 6, 452.
31 (1686) 2 Show K.B. 475.
The British Pattern of Secularisation
789
dulgence to Catholics in 1685 and to both Protestant dissenters and Catholics in 1687 and
1688. These general suspensions were designed to undermine the Anglican monopoly
through an alliance of Protestant dissenters and Catholics. James ordered the Indulgence
of 1688 to be read in all parish churches, but at this point the Anglican clergy refused.
Furthermore, few Protestants supported the Indulgence; most suspected that James intended to secure a Catholic establishment. Having secured the support of the clergy and
leading dissenters, Archbishop Sancroft (1617-93) and another six bishops petitioned the
King to revoke the Indulgence on the basis of its questionable legality; and not 'from any
want of due tenderness to the Dissenters'. Outmanoeuvred, James responded with a malicious prosecution of the seven bishops for sedition. 32 They were acquitted to the delight
of a supportive public, but it is ironic that they initiated the last antecedent to the collapse
of the Anglican monopoly.
(c) The Anglican Monopoly in Scotland
The post-Restoration monopoly of Anglicanism extended into Scotland. Even more so
than in England, the Scottish church settlement demonstrated the dysfunction implementation of the cuius regio principle created if unsupported by social patterns. In Scotland,
despite persistent pockets of Catholicism in the Highlands, the people were primarily
Calvinist and Presbyterian, and the consequent dissonance between legal and religious
conditions led to extreme instances of lawlessness and repression.
Responding to English political pressure, in 1661 the Scottish Parliament passed the
Act Rescissory and thereby rendered all statutes passed from 1640 void. The Episcopal
Kirk of Charles I was thus revived. The Act ofRestitution reinforced this position, leaving
the religious settlement to the King, and in a subsequent Order of Council it was decreed
that bishops be restored to the Kirk. 33 The Episcopal Kirk was also secured through legislation parallel to the Clarendon Code, although, bearing the strains of an alien tradition,
it required more severe penalties than imposed in England. In the first place, clergy who
refused to support the establishment were to be excluded. The Test Act of 1662 required
an office holders to declare the National Covenant, a pledge to resist episcopacy, and the
Solemn League and Covenant to be illegal. The Patronage Act of t 662 required the resignation of any minister not collated by the relevant bishop. This policy was confirmed
in 1663,34 so in Scotland also the ejections took place. Two hundred and seventy ministers, about one-third of the clergy, chose to dissent from the episcopal settlement.
In the second place, stern penalties were prescribed for illegal conventicles. One drastic consequence of the degree and intensity of dissent in the Lowlands had been periodic
rebellion, beginning earnestly in the Pentand Rising of convenanters in 1666 and continuing to the Glorious Revolution. Capital penalties for conventicles were directed to the
covenanting parties and imposed to deter rebellion. In 1670 field preaching became a
capital offence. Then after James' accession, merely to attend a field or house conventicle
also became a capital offence. 35 Moreover, these penalties were ruthlessly enforced. In
Scotland the 1680s became known as 'the killing time'.
The seesawing relations between church and state in the seventeenth century reached
a curious expression in the Test Act of 168 t. The royal supremacy in matters ecclesiastical had been settled in 1669,36 and the Test Act provided for all public office holders to
subscribe to it. However, as a result of misconceived Presbyterian political stratagem, it
also required subscription to Knox's Confession of Faith. The Confession, accepted by
32 R v. Sancroft & Drs (Trial ofthe Seven Bishops) (1688) 3 Mod. 212, 12 St. Tr. 188.
33 (Scots) Order of Council for the Restoration ofEpiscop(l(:y 1661.
34 (Scots) Act Enforcing the Ecclesiastical Settlement 1663; (Scots) Order of Council Againt Ejected Ministers
1663.
35 Mathieson, Politics and Religion in Scotland 1550 to 1695 (Glasgow, 1902, vol ii), 251 & 314-15.
36 (Scots) Assertory Act 1669.
190
Reid Mortensen
the Parliament of 1567, included the profession that Christ was 'the only head of the
same Kirk' and contradicted the royal supremacy. The Test Act led to further ejections.
Estimates vary from seventeen to eighty ejected ministers. For pointing out the inconsistencies in the test, the Earl of Argyll (1629-85) was convicted of leasing-making (misrepresentation of the King and Parliament) and treason, and later executed. 3?
The terms of the Scots Test Act of 1681 starkly reflect the disintegration of British religious life which undermined the Anglican monopoly. It is true that legislative activity in
the period was designed to reinforce the identification of Anglicanism with the state, and
that the church settlements in England and Scotland from 1662 to 1688 may be treated as
a 'base-line' from which the British pattern of secularisation may be traced. 38 But, it is
apparent in the penalties and substance of the legislation itself that the religious life of the
people belied the cuius regio principle the legislation was intended to implement. The
Parliaments imposed penalties for dissent to maintain public order through the union of
church and state. Instead, they caused enormous disorder, having underestimated dissenters' convictions and endurance. In this state of legal malaise, the legal order had to bend
to the social pressures to restore public order and safety. However, the process of constitutional secularisation really began once the Catholic King himself determined to undermine the church establishment, and Protestant interests united to expel him.
The Glorious Revolution settlement
The Glorious Revolution did little to alter the comparative constitutional status of civil
and ecclesiastical institutions in England. Relations between the King, Parliament and
the courts may have changed, but all continued to occupy a superior position to ecclesiastical institutions. Henry VID's Statute ofAppeals of 1533 39 still embodied the claim of
royal supremacy in ecclesiastical disputes. The doctrine of parliamentary sovereignty, a
logical consequence of the Revolution, theoretically placed unlimited legislative power
in Parliament. Blackstone even described its power in religious matters in quasi-theological tenns: 40
The power and jurisdiction of parliament ... is so transcendent and absolute, that it cannot be
confined either for causes or persons, within any bounds ... It can alter the established religion
of the land.
In the early seventeenth century Sir Edward Coke (1552-1634) asserted the priority of
the common law over ecclesiastical law, and the relationship was settled in those terms
after the Revolution. The ecclesiastical courts did continue to exercise their extensive jurisdiction in civil and spiritual matters. However, in the last resort, the civil courts defined
this jurisdiction and restrained them from exceeding it by issuing (in the case of the common law courts) writs of prohibition and (in the case of Chancery) injunctions. The ecclesiastical courts had no remedy of equal effectiveness to confine the actions of the civil
courts. It was not clear until the 1830s whether the Revolution also changed the constitutional relations between civil and ecclesiastical institutions in Scotland, but it certainly
did introduce new legislative relations between church and state in both countries.
The constitutional settlement which followed the Revolution can be understood as a
belated legal expression of the religious conditions generated in the Interregnum. It was
primarily a Protestant settlement designed to secure a Protestant succession and to benefit
Trinitarian Protestants only. The Parliaments of 1689 to 1711 passed a series of Acts mak-
37 Having in 1685 returned from exile in support of Monmouth's rebellion: Earl ofArgyll (1681) 8 St.Tr.843.
38 Martin, supra note 1,4-6; cfH.J. Berman, Law and Revolution (Cambridge, Mass: Harvard University Press,
1983),5, 18 & 21.
39 24 Hen. 8 c 12.
40 Blackstone, Commentaries on the Laws ofEngland (14th ed., London: A. Strahan 1803), I 2 iii.
The British Pattern of Secularisation
797
ing Protestanism a precondition to the right to succeed to the throne. 41 In England the Act
of Settlement of 170()42 provided the spvereign was to join in communion with the
Church of England. It also defined the line of succession more precisely, the extinction of
the Protestant Stuarts requiring the throne to pass to Princess Sophia of Hanover and the
Protestant heirs of her body.43
In addition to completing the Protestant monopoly in government, the post-Revolution Parliaments also extended the restrictions on Catholics. King James' religion was the
most important reason for his expulsion. Catholicism thus became even more closely associated with seditious designs, and the Jacobite risings of 1715 and 1745 only confirmed
the truth of this association for most of the eighteenth century. In consequence, legislation
passed in 1689 provided that any person who refused to take the declaration against transubstantiation was not to reside within ten miles of London or Westminster,44 or to keep
arms, gunpowder or ammunition, or horses above £5 in value. 45 In 1698 the penalty for
a priest convicted of saying mass was increased to perpetual imprisonment. 46 These
measures, as with other recusancy legislation, were rarely enforced, although Catholics
continued to be disqualified from positions of influence through the declaration against
transubstantiation.
Unitarians suffered a si:milar disability. In 1698, in response to concerns expressed by
Protestant dissenters and members of the Commons about Unitarians, Parliament passed
the Blasphemy Act47 to render any person denying, inter alia, the doctrine of the Trinity
liable to disqualification from public office.
In the second place, the Revolution settlement also embodied the religious pluralism
which began to flourish during the Interregnum. Interestingly, the pluralist components
of the settlement are the two benefits Lord Macaulay considered to be the most important
of the Revolution: the Toleration Act and the establishment of Presbyterianism in Scotland. 48 Each as a legal measure destroyed religious monopoly in Great Britain. Each also
carried rational theological and political ideas which introduced new secularising principles into the organic British constitution: religious toleration and the Reformation doctrine of two kingdoms. The doctrine of two kingdoms originated in Lutheran and
Calvinist theology. It is the stronger secularising agent, requiring some constitutional
separation of church and state and limiting the state's power over religion. The principle
of toleration also derived from Reformation theology, but did not necessarily compromise the doctrine of unlimited parliamentary sovereignty. It required only that Parliament
refrain from imposing legal penalties on religious groups.
(a) Toleration in England
The Toleration Act of 168949 brought an immediate end to the legal monopoly of Anglicanism without disestablishing it. It also made the principle of religious toleration increasingly important through the eighteenth and early nineteenth centuries, as it became
evident that the Act was not a temporary measure and as the courts interpreted it more
generously. The Toleration Act began as a concession to Protestant dissenters for the role
41
s3 Coronation Oath Act 1689 (1 Will. & Mar. c6); Bill ofRights 1689 (1 Will. & Mar. sess2 c2); (Scots) Claim
ofRight 1689; s2 Act ofSettlement 1700 (12&13 Will 3 c2).
42 12&13 Will 3 c2.
43 ssl & 3 Act ofSettlement 1700; s3 Treason Act 1702 (1 Anne st2 c22); art 2 Union With ScotlandAct 1706 (6
Anne c2); Princess Sophia ofHanover's Precedence Act 1711 (10 Anne c4).
44 s1, 1 Will. & Mar. c9.
45 ss 2 & 7,1 Will. & Mar. cI5.
46 ss3,4&7,9&10Wil1.3c4.
47 9& 10 Will 3 c32.
48 Macaulay, supra note 28,546-7.
49 1 Will. & Mar. c18.
192
Reid Mortensen
they played in relation to the Indulgence and Revolution of 1688. It can now be understood that the very origins of the secular state in the English-speaking world lie in this
success Protestant dissenters had in their struggle for religious freedom.
In brief, the Toleration Act contained a conditional suspension of the penal laws attaching to Protestant dissension. It provided an exemption to any dissenters who made
the required declarations from penalties for dissent prescribed in recusancy legislation,
prescribed in all Acts comprising the Clarendon Code, except the Corporation Act, and
arising under ecclesiastical law. The required declarations were an oath of allegiance and
the declaration against transubstantiation. Quakers were permitted to make an affirmation to the same effect. Preachers and teachers were also to subscribe to the Thirty-nine
Articles, except those on church government and, for Baptists, infant baptism. It thus became lawful to assemble for worship, although meetings could not be conducted behind
closed doors and the meeting-place had to be certified by the local bishop, archdeacon or
justices of the peace. These meetings then received the protection of the law and it became an offence to disturb them. 5o
Initially, the Act benefited Presbyterians, Independents, Baptists and Quakers. As
other Protestant sects professing trinitarian beliefs multiplied, they also enjoyed its protection. 51 The Act also confirmed that Catholicism and Unitarianism remained illegal.
Ironically, it remained doubtful whether the most significant movement in English Protestantism during the eighteenth century, Methodism, enjoyed the benefit of the Act because until 1795 Methodists generally continued to conform to the established church. 52
In the same way, Anglican clergy could not rely on the Act to avoid the stricter requirements placed on them under the ecclesiasticallaw. 53
The decisions in Attorney-General v. Baxter 54 and Attorney-General v. Hughes 55
clearly show the change the Act introduced for Protestant dissenters. In Baxter, a bequest
of£600 was left to Richard Baxter (1615-91), the respected Puritan who led the surrender
of pulpits before the ejections of 1662, to distribute amongst sixty ejected and dissenting
ministers. North L.C. decreed that the trust was void, being for the benefit of dissenting
ministers - an illegal purpose. However, in Hughes, the Lords Commissioners reversed
the decree and ordered the remaining fund to be paid according to the original bequest.
Lord Hardwicke L.C. later explained the decree in Baxter as a misinterpretation of the
trusts,56 but it was more likely the decree was reversed in recognition of the new order
under the Toleration Act. 57
Nevertheless, the reported decisions demonstrate the experimental nature of churchstate relations in England until the 1750s and that the courts hesitated to construe the Toleration Act liberally. For instance, local authorities sometimes had to be forced to comply
with the Act. In Green v. Pope 58 dissenters had to obtain a writ of mandamus from the
Common Pleas to require the Bishop of Chester's registrar to license their meeting place.
In Peat's Case 59 a dissenting preacher had to obtain mandamus from the King's Bench
to be allowed to take the oath of allegiance and the doctrinal subscription before the justices of Warwickshire. The superior courts themselves continued to show bias against
50 egRv. Wroughton (1765) 3 Burr 1683; R v. Hube (1792) Peake 179 & (1794) 5 Term R 543.
51 eg Lutherans: R v. Hube (1792) Peake 179.
52 R v. Justices of Derbyshire (1766) 4 Burr 1991; cf R v. Moreley (1760) 2 Burr 1040; R v. Wroughton (1765)
3 Burr. 1683.
53 Trebec v. Keith (1742) 2 Atk. 498.
54 (1684) 1 Vern 248.
55 (1689) 1 Vern 105.
56 De Costav. De paz (1744) 2 Swanst. 487n; cf Moggridge v. Thackwell (1803) 7 Yes. 36, 76.
57 De Garcin v. Lawson (1798) 4 Yes. Jun. 433n; Corbyn v. French (1799) 4 Yes. Jun. 418, 4330.
58 (1696) 1 Ld. Raym. 127: see also R v. Justices of Derbyshire (1766) 4 Burr. 1991,1 Black. W. 607.
59 (1705) 6 Mod. 310.
The Br/tish Pattern of Secular/sat/on
193
Protestant dissenters in interpreting the Act. In 1705 the Court of King's Brench held a
dissenting preacher registered in one county could not preach in another county without
registering there. 60 Lord Harcourt L.C. in Attorney-General v. Eades 61 was inclined to
consider a trust for the benefit ofBaptists to be invalid because it might draw people from
the established church; dissent only being tolerated not encouraged. The opinion pointed
in the same direction as legislative policy at the time. The Parliament of 1714, dominated
by Tories, passed the Schism Act>2 to require tutors and school teachers to conform to the
Church of England. In 1712 it had already re-asserted Anglican pretensions in legislation
revising the Scottish church settlement63 and the Occasional Conformity Act.64 The latter
measure confirmed the toleration, but also strengthened the disqualification of Protestant
dissenters from public office. In occasionally taking the eucharist according to the rites of
the Church of England, a dissenter could not be barred by the Corporation Act from assuming public office. However, the Act of 1712 provided a person in public office to be
disqualified if later attending a dissenters' meeting. The Occasional Conformity and
Schism Acts were repealed in 1719.65 However, the Corporation Act still created legal
complications for dissenters.
In 1690, the Court of Common Pleas held that a dissenter could validly refuse public
office because of the disqualification in the Corporation Act,66 but in 1694 the King's
Bench adopted a stricter approach. In R & R v. Larwood,67 a dissenter was convicted for
refusing to become Sheriff of Norwich. He pleaded the disqualification in the Corporation Act in defence but the Court would not permit him to rely on his own disability. The
result was that a dissenter could be punished for refusing an office he could not lawfully
assume (in the absence of occasional conformity). In the 1740s the City of London unscrupulously exploited this dilemma; raising revenue by appointing dissenters as sheriffs
and fining them for refusing office. It was not until 1767 that Lord Mansfield resolved the
matter.
In the mid-eighteenth century the courts began to interpret the Toleration Act more liberally. The Court of Chancery settled the doubts about trusts for the benefit of dissenters
in Attorney-General v. Cock .68 In 1734, Lord Talbot L.C. enforced a trust for the benefit
of Presbyterian ministers,69 and in 1749, Lord Hardwicke enforced a trust for the benefit
of Quakers.7° It was nevertheless argued before Lord Hardwicke in Cock, relying on
Eades, that the Toleration Act could not validate a trust for the benefit of Baptists.7 1
It is not an act of encouragement, but of toleration, temporarily to exempt persons then in being
from the penalty of the law, not for the benefit of scrupulous consciences forever ...
Lord Hardwicke could not countenance such a narrow construction and upheld the
trust. Henceforth the propriety of trusts for the benefit of tolerated dissenters could not be
questioned.
60 R v. Peat (1705) 2 Salk 572, 6 Mod 228: s9 Occasional Conformity Act 1712 (10 Anne c2) cured this limitation.
61 (1713) 2 Yes. Sen. 274n.
62 12 Anne c7.
63 Scottish Episcopalians Act 1712 (10 Anne c7); Patronage Act 1712 (10 Anne cI2); Yuletide Vacation Act 1712
(10 Anne cI3).
64 10 Anne c2.
65 5 Geo 1 c4.
66 Guildefordv. Clarke (1690) 2 Vent. 247.
67 (1694) 1 Salk. 168, 1 Ld Raym. 29,4 Mod. 269.
68 (1751) 2 Yes. Sen. 273.
69 Loyd v. Spillet (1734) 3 P Wms 344 & (1740) 2 Atk 148.
70 Attorney-General v. Andrews (1748-9) 1 Yes. Sen. 225, Yes. Sen. Supp. 116.
71 (1751) 2 Yes. Sen. 273, 274.
194
Reid Mortensen
The Court of King's Bench also liberalised its interpretation of the Act. In R v. Barker
72 Lord Mansfield C.J. and Foster J. ordered mandamus to issue to compel the admission
of a dissenting minister to his pulpit. Foster J. described the right to admission as 'established' and Lord Mansfield thought that to deny the writ would be to put dissenters outside the protection of the law. It was on these same bases that the Corporation Act
question was resolved. In Evans v Chamberlain ofLondon73 a Protestant dissenter was
fined £600 for refusing to accept the office of Sheriff of London and Middlesex. He
pleaded the disqualification in the Corporation Act and, despite the decision in lLzrwood,
ultimately succeeded in the House of Lords. Lord Mansfield is reported to have said that
the provisions of the Toleration Act put Protestant dissent, 'not merely under the connivance, but under the protection of the law ... have established it'. The decision made it
clear that the Toleration Act had permanently altered the legislative relations of religion
and the state, and that the dislodgment of the Anglican monopoly was then irreversible.
Thus the courts brought the toleration about as far as the linguistic restraints of the Act
pennitted. The only legislative revision of the Act occurred in 1779, when it was considered safe enough to substitute the requirement for preachers and teachers to subscribe to
certain of the Thirty-nine Articles with an oath confirming their Protestantism.74
The operation of the Toleration Act in the eighteenth century was accompanied by a
dramatic increase in the numbers and proportions of Protestant dissenters. It is estimated
that there were approximately two million Protestant dissenters out of a total population
of ten million people in the early nineteenth century. In addition, the Act made it difficult
for churchwardens to police the church attendance laws applicable to everyone else. Itself
a result of the disintegration of English religious life, the Toleration Act appears to have
some relation to the accleration of religious pluralism, the decline in religious involvement in the kingdom and the demand for the extension of the process of toleration.
(b) Presbyterianism and the Two Kingdoms in Scotland
It could not be possible to maintain the cuius regio principle in Great Britain with an Anglican establishment in England and a Presbyterian one in Scotland. During the English
parliamentary debates on the union of the two kingdoms, Archbishop Tenison (16361715) declared he could not support a different establishment in each kingdom: the common Protestantism was the important factor. But the Earl of Nottingham (1647-1730), a
high church Tory sensitive to the cuius regio principle, observed during the same debates
that the arrangement made theology a branch of geography.75 It appeared that after the
Union With Scotland Act76 passed in 1706, constitutional relations between church and
state did as well.
The Episcopal Kirk, discredited by the ruthlessness employed to buttress its established status, collapsed on the Revolution. In the Claim ofRight of 1689 the Convention
of Estates declared William and Mary joint sovereigns and recited the episcopacy as a
grievance of the previous reign to be abolished. Over one hundred and eighty ministers
were ejected in 1689 for failing to support the new monarchs, but it was not until June
1690 that the Scottish Parliament settled the terms of the church establishment. The Act
Establishing Presbytery ratified the Westminster Confession, and provided for the Kirk
to be governed by sessions, presbyteries, provincial synods and the General Assembly in
accordance with the original legislation of 1592. In July secular and ecclesiastical affairs
separated further when, in the Patronage Abolition Act, Parliament abolished lay patron-
72
73
74
75
(1762) 3 Burr. 1265.
(1767) 3 Mer 3750, 1 Cowp 3930, 1 Salk 1690, 4 Mod 2740 & Harrison v. Evans (1767) 3 Bro PC 465.
19 Goo 3 c44.
Carpenter, 'Toleration and Establishment: 2' in G.F. Nuttall & O. Chadwick (eds.), From Uniformity to Unity
1662-1962 (London: 1962), 301-2.
76 5 Anne c8.
The British Pattern of Secularisation
195
age and transferred advowsons (rights to present ministers to a benefice) to heritors (proprietors liable for public burdens) and kirk sessions. The Presbyterian and Calvinist Kirk
was thus confirmed. The King did seek to retain the royal supremacy and the comprehension of episcopal ministers, but failed, and even though all established and dissenting
clergy were required in an Act of 1693 to swear allegiance to William and Mary and to
make a declaration, called the assurance, acknowledging them to be de jure sovereigns,
ministers of the Kirk were also required in a later Act of the same year to subscribe to the
Westminster Confession.77 The Union With Scotland Act also provided a guarantee of the
Scots Presbyterian establishment as a fundamental condition of the Union.7 8
The 1690 church settlement may have been intended to mirror the Reformation model
of the separation of church and state. Parliament and the Kirk were each sovereign in
their own province. The Government could no longer appoint clergy or interfere with ecclesiastical policy. The General Assembly became the supreme legislative and judicial
authority of the Kirk. It seems therefore, there could have been a more equal relationship
between civil and ecclesiastical authorities in Scotland. However, any remnant of the
doctrine of two kingdoms in the Scottish Constitution was supplanted in the courts by the
English relationship in a serious collision between the Court of Session and the Kirk in
the 1830s and 1840s. The major issue creating the collision was lay patronage.
In 1712, contrary to popular sentiment in Scotland, the British Parliament restored patronage to the Kirk. The Patronage Act79 provided for advowsons to be restored to the old
patrons. The Queen was granted any advowsons possessed by any episcopal dignitary,
person unwilling to swear the oath of allegiance or Catholic. In the short term, the Patronage and Scottish Episcopalian Acts provoked local outrage and serious moves to dissolve the Union. In the long term, it seems to have encouraged the further development
of religious pluralism. The General Assembly lobbied at first to have patronage abolished, but the Moderate party soon found it convenient to help ministers of liberal persuasions to find pulpits. In 1732, the Assembly passed an Act strengthening patron's rights
and precipitated years of secessions from the Kirk. Moreover, the seceders also disagreed
amongst themselves on the extent to which the state could interfere in ecclesiastical matters, and progressively divided into burghers and anti-burghers, auld lichts and new
lichts, lifters and anti-lifters, and so on. 80
In the Kirk congregations tried to reduce the effect of patronage by the issue of a 'Call'
to the patron's presentee or at least to indicate consent to the presentation. The 'Call' appears to have become a more common practice with the increase of democratic feeling,
and was modified and formalised by the General Assembly's Veto Act of 1832. This Act
provided that a presbytery should not accept the presentation of a minister rejected by a
majority of male heads of families in the parish. Inevitably its operation conflicted with
the Patronage Act, and the conflict raised a fundamental question on constitutional relations between church and state.
In the Auchterarder Case 81 two hundred and eighty seven out of three hundred and
thirty heads of families rejected the minister presented by the patron. In pursuance of the
Veto Act the Presbytery refused to admit him. He appealed unsuccessfully to the Synod
and Assembly, and then instituted proceedings in the Court of Session with the patron to
have the refusal declared illegal. The Court, by a majority, held it had jurisdiction to en-
77 Mathieson, supra note 35, vol ii, 371.
78 art 25 Union With ScotlandAct 1706.
79 10 Anne c12.
80 Craigdallie v. Aickman (1813) 1 Dow 1 contains one record of these divisions.
81 Earl of Kinnoull v. Presbytery ofAuchterarder (1838) 16 S, 661.
196
Reid Mortensen
tertain the question and that the processes of the ~to Act infringed the patron's civil right
of presentation restored by Parliament. Lord President Hope, for example, said: 82
[I]t was an error to hold that the Church of Scotland, as a National Church, was without a temporal Head, which Head was Parliament.
In comparison, Lord Fullerton's analysis is more consonant with the doctrine of two
kingdoms. He admitted patronage was a civil right but said that its exercise also gave rise
to spiritual rights, such as presentation, which could only be dealt with by an ecclesiastical body. He was also prepared to recognise the supremacy and independence of the civiI
and spiritual courts within their respective provinces. 83 The majority's decision was nevertheless confmned on appeal to the House of Lords.84 Hopes were expressed in the
Lords that the Kirk would bow to the decision, but Lord Cockburn's comment in the
Court of Session that the decision placed church and state 'in a state of legal collision'85
was a more accurate assessment. In the Dunkeld Case 86 the Court interdicted a Presbytery not to induct a minister after another had been rejected in terms of the Veto Act. The
Presbytery, on the advice of the General Assembly, proceeded to ordain the minister and
was censured by the Court for breach of the interdict. The Presbytery of Auchterarder
also ignored the decision against it and later suffered ajudgment for damages. 87
These decisions also placed parties in the Kirk in a state of theological collision. The
Non-intrusionist (Evangelical) party insisted that the General Assembly pursue a policy
of disobedience to the civil courts and continue to apply the Veto Act. On the other hand,
the Moderate party continued to support patronage as consistent with the Kirk's 'recognised principles and ... general practice'.88 These policies clashed in the Strathbogie
Case. 89 In that decision most male heads of families also recorded disapprovals of the
presentee, but a majority of the Presbytery, in light of Auchterarder, still decided to admit
him. The Assembly accordingly suspended them from the ministry for disobedience. It
again came before the Court of Session. The Court decreed, also by a majority, that the
Assembly could not suspend ministers acting in accordance with the law. In reliance on
the doctrine of parliamentary supremacy, the Court had moved into internal Kirk affairs.
Lord President Hope, in later proceedings in Strathbogie, held the Court possessed power
to order the Presybety to ordain the minister. 90 In other decisions the Court ruled on questions of the appointment of commissioners to the General Assembly,91 the stipends of
ministers,92 the constitutions of new churches,93 the composition of ecclesiastical courts
and the status of clergy.94 These decisions reflect the triumph of English church-state relations over the doctine of two kingdoms. In Great Britain there would be no constitu-
82
83
84
85
86
87
Id.736.
Id. 770-1.
(1839) 6 CI. & F. 646.
Id.809.
Clark v. Stirling (1839) 1 D 955.
Earl of Kinnoull v. Ferguson (1842-3) 3 D. 778, 5 D. 1010; Ferguson v. Earl of Kinnoull (1842) 9 CI. & F.
251; Earl of Kinnoull v. Gordon (1842) 5 D. 12.
88 Vaudrey, 'The Constitutional Party in the Church of Scotland' (1983) 62 Scot Hist Rev 35, 40-1 & 45.
89 Presbytery ofStrathbogie v. Cruickshank (1839-40) 2 Dunlop Bell & Murrays Reports 258 & 585; Cruickshank
&: Drs (1840) 2 D. 1047 & 1380; Edwards v. Cruickshank (1840) 3 D. 282; Cruickshank v. Gordon (1843) 5
D.909.
90 (1840) 3 D. 282, 307.
91 Majority of Presbytery ofStrathbogie v. Minority of Presbytery of Strathbogie (1842) 4 D. 1298.
92 Gordon v. Heritors ofParish ofMonquhitter (1839) 1 D. 789; Fleming v. Heritors ofNeilston Parish (1839)
1 D. 1257; cf Brewster v. Marquis ofAbercorn (1837) 15 S. 991; Gardner v. Heritors of Parish ofRathven
(1838) 1 D. 158.
93 Lord Panmure v. Sharpe (1839) 1 D. 840.
94 Livingstone (1841) 3 D. 1278; Wilson v. Presbytery of Stranraer (1842) 4 D. 1294; Smith v. Presbytery of
Abertmff(I842) 4 D. 1476; Cuninghame v. Presbytery of Irvine (the Stewarton Case) (1843) 5 D. 427.
The British Pattern of Secularisation
797
tional separation of church and state. In the Kirk the decisions led to the Disruption of
1843. The Court being committed to the supremacy of Parliament, the Non-intrusionists'
only remedy was for Parliament itself to abolish patronage. However, the political lobbying also failed: conservatives and English liberals generally supported patronage. So on
18 May 1843, the Disruption occurred: four hundred and fifty one ministers of the Kirk
resigned their livings to form the Free Church of Scotland.
Patronage was finally abolished in 1874. 95 It had been a 'running sore' in the Kirk for
one hundred and sixty two years. It had sometimes been seen as a breach of the Union
With Scotland Act. It had also been seen as a compromise of the Presbyterian and Calvinist Reformation, and gave rise to more dissent in Scotland than all other issues combined.
The Extension of Toleration
In the late eighteenth and early nineteenth centuries, the toleration first granted to Protestant dissenters was gradually extended to other religious groups. The process was generated by a complex of factors. For example, emancipation to particular religious groups
often depended on the fortunes of their political associations. There was also growing
strength in the principle of toleration itself. As church historian, Owen Chadwick,
wrote: 96
From the moment that European opinion decided for toleration, it decided for an eventual free
market in opinion ... Once concede equality to a distinctive group, you could not confine it to
that group. You could not confine it to Protestants; nor, later, to Christians; nor at last, to believers in God. A free market in some opinions became a free market in all opinions.
Even given the impossibility of identifying all the social processes behind the extension of toleration, the course of emancipation still took an incremental doctrinal path
away from Anglicanism. Toleration first came to Scottish Episcopalians, and then to Unitarians, Catholics and Jews.
(a) Scottish Episcopalians
There was no express provision for the toleration of dissent in the Revolution settlement
in Scotland. Even though the Toleration Act offered some security for Presbyterians in
England, a reciprocal security for Anglicans in Scotland remained precarious.97 In 1712,
an assertively Anglican Parliament balanced the position in the Scottish Episcopalians
Act. 98 This Act reinforced the ambiguous position the Episcopal Church occupied: suspected of Jacobitism and dissenting but related to the English establishment. It provided
that Episcopalians could assemble for divine service conducted by ordained ministers
and use the liturgy of the Church of England. Each minister of the Kirk and the Episcopal
Church was to swear allegiance to Queen Anne and to abjure any allegiance to James Edward Stuart. But despite Parliament's benefaction, the Episcopal Church had to endure a
chequered relationship with the state in the eighteenth century because of its association
with the Jacobite cause.
The one hundred and fifty eight year saga of the Snell trusts illustrates its uncertain
position. John Snell made his will and died in the 1670s, when episcopacy was established in Scotland. He gave the residue of his estate to trustees for the maintenance and
advancement of Scots students at Oxford and set conditions designed to encourage students to take up holy orders in Scotland. In 1690, in Attorney-General v. Guise,99 Snell's
95 s3 Church PatrofUlge (Scotland) Act 1874 (37 & 38 Vic c82).
96 O. Chadwick, The Secularization ofthe European Mind in the Nineteenth Century, (Cambridge: 1975), 21.
97 cf Greenshields v. Edinburgh Magistrates (1710) Co11427.
98 10 Anne c7.
99 (1692) 2 Vern. 266.
798
Reid Mortensen
heiress at law alleged the trusts became void on the re-establishment of Presbyterianism;
it frustrating the intention to advance episcopacy. The Lords Commissioners apparently
considered the trusts to be for an illegal or superstititious use. However, the gift remained
valid and was applied cy pres (allowing a lawful charity as close as possible to the illegal
purpose to take its place) according to a decreed scheme. The Lords Commissioners' decision in Guise is difficult to reconcile with their earlier decision in Attorney-General v.
Hughes. The favourable treatment of ejected ministers in Hughes may have resulted from
the express toleration of dissenters under the Toleration Act and the unfavourable treatment of Anglican dissenters in Guise from the absence of equivalent legislation in Scotland. However, even after the Scottish Episcopalians Act of 1712, the Court of Chancery
continued to find the incentive to enter the Episcopalian ministry in the problematical
Snell trusts. Glasgow College challenged the scheme in 1738, and the matter came before
Lord Hardwicke L.C. in 1744. 100 He also expressed doubts on whether the will could be
executed properly after the restoration of Presbyterianism, but noted that this had been
dealt with in Guise. He nonetheless ordered a new scheme which, when finally settled in
1759, still contained no incentive for a student to enter orders in the Episcopal Church.
In the years around the Jacobite risings of 1715 and 1745 Episcopalians were closely
monitored through requirements for ministers to swear oaths of allegiance and the assurance and to pray publicly for the King. lol The Scottish Episcopalians Act of 1746102 provided it to be an offence for an Episcopal minister to conduct divine service without
having taken the oaths and having also received letters or orders from a bishop of the
Church of England or Ireland. On a second conviction the minister could be transported
for life and a member of his congregation imprisoned for two years. I03 So Samuel
Johnson's claim that Anglicans in Scotland were 'as Christians in Thrkey' seems barely
to overstate the position. 104 It is strange that the most onerous penalties Parliament applied to Protestant dissenters in the eighteenth century should be directed to Anglicans,
but clearly here it was the political allegiance which attracted the penalty.
The restraints were eased through the Scottish Episcopalians Relief Act of 1792,105
soon after Charles Edward Stuart died in 1788. This Act still provided Episcopal ministers were to swear the oath of allegiance and the assurance and to pray for the King, as
well as to subscribe to the Thirty-nine Articles. However, it did contain a reduced scale of
penalties for breach of these requirements. It also reinforced the Episcopal Church's dissenting status in providing that its clergy could not assume ministries in England unless
also ordained by a bishop of the Church of England or Ireland. This limitation was also
removed in 184O}06
Some legacy of Scottish Episcopalians' disabilities was still felt in 1844 when the
scheme settled for the administration of the Snell trusts in 1759 was challenged. Episcopalians argued that since the Scottish Episcopalians Relief Act of 1792, it was possible
lawfully to administer the trusts for the benefit of the Episcopal Church according to the
strict terms of the will. Knight Bruce ve. agreed lO7 but the House of Lords reversed his
decree on appeal. lOS Lord Cottenham L.C. attributed the previous decisions on the trust,
100 Attorney-General v. Baliol College (1744) 9 Mod 407.
101 s3 Security Act 1714 (1 Geo. 1 s1. 2 cI3); s3, 5 Geo. 1 c29; ss 2 & 3 Scottish Episcopalians Act 1746 (19 Geo.
2 c38).
102 19 Goo. 2 c38.
103 See alsoss 23-5 Disarming Act 1746(19Geo 2 c39); ss 11 & 13 Disarming Act Amendment Act 1748 (21 Geo
2 c34).
104 J. Boswell, Journal o/a Tour to the Hebrides (London: Harmondsworth, 1984), 196.
105 32 Goo. 3 c63.
106 ss 1 &2,3 &4 Vic, c33.
107 Attorney-General v. Glasgow College (1846) 2 Coil. 665.
108 Glasgow College v. Attorney-General (1848) 1 H.L.C. 800.
The British Pattern of Secularisation
799
unfavourable to the Church, to the fact that it had ceased to be the established religion,
and not to the fact of its tolerated status. There was, therefore, no reason to alter the
scheme. However, it seems better to understand the decision as a reflection of the Lords'
reluctance to vary the terms of a scheme administered since 1759. The decision, nevertheless, demonstrates the treatment of trusts for the Episcopal Church to be inconsistent
with the many decisions the Court of Chancery made upholding trusts for English dissenters.
(b) Unitarians
The Blasphemy Act of 1698 disqualified a person denying the doctrine of the Trinity from
public office, unless recanting soon after conviction. On a subsequent conviction the person was liable to three years imprisonment. It was strictly an unnecessary measure. The
Toleration Act expressly provided for dissenting preachers and teachers to subscribe to
the Anglican article on the Trinity and that Unitarians remained under the penalties of the
Clarendon Code. In any case denial of the Trinity probably constituted blasphemy at
common law. For instance, in R v. Hall 109 the defendant was indicted for publishing A
Sober Reply to the Merry Arguments about the Trinity. He was convicted and still in
prison six years later. 110 Prosecutions for blasphemy probably always proceeded on common law indictment, and perhaps because the Blasphemy Act prescribed a comparatively
light punishment for a first offence. III
These restraints were removed one by one. The Act of 1779, substituting a declaration
ofProtestantism for subscription to the Thirty-nine Articles was the first. In 1812 the Five
Mile and Conventicle Acts were repealed. I 12 There had been a remarkable increase in the
number and influence of Unitarians by this period, and in 1813 Parliament passed the socalled Trinity ActII3 to extend to them the concessions of the Toleration Act. The provisions of the Blasphemy Act prohibiting denial of the doctrine of the Trinity also were
repealed. Jeremy Bentham criticised the Trinity Act because its brevity exposed it to lawyers' reconstructions. 114 He proved to be an accurate prophet because lawyers continued
to argue that Unitarianism offended the maxim, 'Christianity is part and parcel of the law
of England'. In Attorney-General v. Pearson 115 Lord Eldon L.C. considered the Trinity
Act made no change to the common law, although he did not decide whether at common
law denial of the doctrine of the Trinity amounted to blasphemy. In R v. Waddington 116
Best J. also considered that, if it had been an offence at common law to deny the divinity
of Christ before the Trinity Act, it continued to be an offence afterwards. He would not
decide whether it was libellous to argue against the divinity of Christ from the Scriptures,
but held it was libellous to do so by denying the truth of the Scriptures.
The House of Lords laid to rest any doubts that Unitarians enjoyed relief from common law impediments in Shore v. Wilson .117 Lady Hewley made generous settlements
for Protestant dissenters in 1704 and 1707. In the course of the eighteenth and early nineteenth centuries the trustees applied considerable proportions of the rents to Unitarian
Presbyterians. Shadwell V.C. decreed in 1833 that the rents could not be applied to Unitarians because it was Lady Hewley's intention to benefit Trinitarians, and the decree was
upheld on appeal to Lord Lyndhurst L.C. and the House of Lords. The judges advising
109
110
111
112
113
114
115
116
117
(1721) 1 Stra. 416.
R v. Curl (1727) 1 Stra.788.
cf R v. Eaton (1812) 31 St. Tr. 927, 950.
52 Geo. 3 c155.
53 Geo. 3 c160.
Henriques, Religious Toleration in England 1787-1833, (London: Routledge & Keegan Paul 1961),209.
(1817) 3 Mer. 353.
(1823) 1 B. & C. 26, 1 St. Tr. (NS) 1339.
(1839-42) 9 CI. & F. 355; 4 St. Tr. (NS) 1370.
200
Reid Mortensen
the Lords nevertheless made it clear that there remained no legal impediment to settle
trusts for the benefit of Unitarians. Shore v. Wilson marked the completion of the tolera-
tion of all Protestants.
(c) Catholics
Catholicism attracted more penalties than any other religious minority in the eighteenth
century, although these were rarely enforced. Blackstone recognised the recusancy laws
could be difficult to excuse if 'executed to their utmost vigour', and also thought they
were largely dependent on Jacobite political associations. I 18 Like the Scottish Episcopal
Church, Catholicism did receive legal relief soon after Charles Edward Stuart died but
the question of complete emancipation was more complicated, being affected by doctrinal differences with Protestants and constituting an intricate part of Anglo-Irish relations.
In the Catholic ReliefAct of 1778,119 Parliament dispensed with the operation of some
post-Revolution recusancy provisions on condition the Catholic took an oath of allegiance rejecting the political power of the Pope. The concession prompted the Gordon
Riots. The more comprehensive Act of 1791 120 proceeded on the lines of the Toleration
Act. It provided that any Catholic who swore an oath of allegiance was exempted from
the recusancy legislation. It enabled Catholics to assemble for worship, provided the
meeting was not conducted behind closed doors and the meeting place was registered at
the General or Quarter Sessions, and also made it an offence to disturb Catholic meetings.
Three important legal disabilities remained: the Test Act of 1678, the prohibition on religious orders, and the illegality of trusts for the advancement of Catholicism. Even though
the anti-Catholic bias in the law of trusts partially originated in principles of equity and
statutes directly relating to trusts, constitutional measures also rendered trusts for the advancement of Catholicism illegaI.121 As late as 1828, Sir John Leach M.R. held that the
Bishop of Blois could not lawfully settle a trust to publish a Catholic doctrinal work. 122
In Ireland four-fifths of the population was Catholic, and so its union with Great Britain 'brought the Catholic question firmly into the centre of the English political stage and
kept it there'. 123 It is difficult, however, to assess the effect of the Union on the timing of
Catholic emancipation. In the short term it certainly delayed emancipation. Because the
(Anglican) established Church of Ireland was united with the Church of England on Union,124 the threat Catholicism presented to the Irish establishment could be interpreted as
a threat to the Church of England itself. In the long term Catholic emancipation was realised because the Government finally decided that Irish unrest was better resolved by concession than by suppression. In 1828, Parliament repealed the Corporation Act and the
Test Act of 1673,125 and in 1829, passed another Catholic ReliefActl26 The latter Act provided for the repeal of the Test Act of 1678 and an oath of allegiance for Catholics sitting
as members ofParliament or holding public office. Limitations continued to exist. Catholics could not assume some public offices, such as the Chancellorship and those relating
to the established churches, and Jesuits and other members of male religious orders were
118
119
120
121
122
123
124
125
126
Blackstone, supra note 40, iv 4 iii 2.
18 Geo. 3 coo.
Catholic ReliefAct 1791 (31 Geo 3 c32).
R v. Lady Portington (1693) 1 Salk. 162; De Garcin v. Lawson (1798) 4 Yes. Jun. 4330; Smart v. Prujean
(1801) 6 Yes. Jun 560; Cary v. Abbot (1802) 7 Yes. Jun. 490; cf Attorney-General v. Day (1749) 1 Yes. Sen.
218,223; Durour v. Motteux (1749) 1 Yes. Sen. 320, 321.
De Themmines v. De Bonneval (1828) 5 Russ. 288.
Henriques, supra note 114, 136.
art 5 Union With Ireland Act 1800 (39 & 40 Goo. 3 c67).
s1 Corporation and Test Acts Repeal Act 1828 (9 Geo. 4 cI7).
10 Goo. 4 c7.
The British Pattern of Secularisation
207
barred from entering the kingdom. The Catholic Charities Act,127 passed the next year,
provided trusts for the advancement of Catholicism to have equal status to those for Protestant dissenters. It is possible to argue that, despite continuing limitations on Catholics,
substantial legal toleration for English Christians had been reached by the 1830s.
(d) Jews
The legal disabilities of Jews resulted from uncertainty in their legal status, itself an outcome of the perception that unbelievers could only be aliens in a Christian state. In 1608,
Coke C.J. stated that only Christians could be permitted access to the courts,128 and relied
on Saint Paul and earlier but substantial authority for the rule. Even in the early seventeenth century a rule of this kind was questionable. Lord Lyttelton (1589-1645) considered it 'a groundless opinion'129 and it received criticism from eminent lawyers
throughout the next two centuries. 130 In any case it was established by 1698 that a Jew
was able to institute legal proceedings. 131
The other legal disabilities of the Jews undoubtedly resulted from the legacy of the
medieval integration of law and Christian religion. In the first place, Jews possessed only
impaired legal status simply because they were not Christians. For example, a Jew could
not hold any public office because the oath of allegiance prescribed in the Security Act of
1701 132 had to be made 'upon the true Faith of a Christian'. In the early nineteenth century opponents to Jewish emanicipation consistently raised the maxim, 'Christianity is
part and parcel of the law of England', to argue that the exclusion of Jews from civil
benefits ought to be maintained. The Court of Chancery had already applied the maxim
for that very purpose, as Lord Hardwicke's bizarre decision in De Costa v. De Paz 133 amply demonstrates. Elias de Paz bequeathed £ 1200 to his executors for the maintenance of
a jesiba and the advancement and propagation of the Jewish religion. Lord Hardwicke
held it to be invalid. He said: 134
[T]he intent of this bequest must be taken to be in contradiction to the Christian religion, which
is a part of the law of the land ...
The bequest, therefore, was available to be applied cy pres and the King directed most
of the bequest to the Foundling Hospital for the support of a preacher to instruct the children in the Christian religion. The most favourable explanation of De Costa v. De Paz is
that the Court found the testator's charitable intention to be more general than merely to
advance Judaism alone. Lord Eldon explained the decision in these terms 135 but it seems
a doubtful rationalisation. Even Lord Eldon could not readily escape the likelihood that a
Jewish testator would be repelled by the idea that his bequest be used to advance the
Christian religion. 136 It is better simply to admit that the decision demonstrates the Christian state, embodied in the operation of the 'part and parcel' maxim, excluded Jews from
the enjoyment of civil privileges. 137
The Jews, in the second place, possessed only impaired legal status because they appeared foreign. Members of 'the Jewish nation', it was argued, could not be considered
127
128
129
130
131
132
133
134
135
136
137
2&3 Will. 4 el15.
Calvin's Case (1608) 7 Co Rep. la., 17a.
1 Salk 46, 1 Ld. Raym 282.
East India Company v. Sandys (1683-5) 10 St. Tr. 371, 391-2; Omichund v. Barker (1744) Willes 538;
Campbell v. Hall (1774) 20 St. Tr. 239,294, 323.
Wells v. Williams (1698) 1 Ld. Raym. 282, 282-3.
13 Will. 3 e6.
(1744) 2 Swaost. 4870 & (1754) Amb. 228.
Ibid.
cf Mills v. Farmer (1815) 19 Yes. Jun. 483, 487.
Attorney-General v. Mayor ofBristol (1820) 2 Jac & W 294,308.
The Bedford Charities Case (1819) 2 Swans 471,524-32.
202
Reid Mortensen
loyal subjects of the King. Jewish eschatology only helped the argument: the doctrine of
the Return suggesting that the Jews' ultimate loyalty belonged to a future state in Palestine. The speedy demise of the Jewish Naturalisation Act, 138 passed in 1753 and repealed
the next year 139 following public uproar, shows how deeply embedded this attitude could
be.
Substantial relief for Jews from civil disabilities came in 1845. The Jewish Relief
Actl40 enabled Jews to qualify for public office.
Historian Ursula Henriques pointed out that the fact that early bills for the relief of
Jews came close to enactment partially reflects 'the results, among the English middle
and upper classes, of the decades of agitation for religious toleration' .141 It is therefore arguable that, on the passing of the Act of 1845, the principle of religious toleration had significantly circumscribed the identification of the Christian religion with the state. The
Catholic ReliefAct of 1778 stimulated the Gordon Riots, but the Act of 1829 effectively
placated a rebellion. In a similar way the Jewish Naturalisation Act of 1753 stimulated
public unrest but the Jewish ReliefAct of 1845 passed into operation peacefully. Thus in
contradistinction to the seventeenth and eighteenth centuries, religious differences in the
nineteenth century seemed so insignificant in questions of government it was possible for
Jews to enter public office.
Conclusion
The British constitution endured a marked degree of secularisation from 1662 to the midnineteenth century. It is possible to observe that the legacy of the medieval interrelationship of church and state persisted in the territorial monopoly of Anglicanism so strongly
asserted after the Restoration. The Toleration Act and the establishment of Presbyterianism in Scotland dislodged the Anglican monopoly. But it was primarily the principle of
toleration embodied in the Toleration Act which continued to drive the process of differentiation between church and state.
These legal developments marking constitutional differentiation were also accompanied by increasing religious pluralism. The ejections in consequence of the Uniformity
Act formalised dissent and denominationalism in England. The Toleration Act and the Act
Establishing Presbytery evidently reflected pre-existing religious conditions. The operation of the Toleration Act in the eighteenth century was accompanied by significant increases in religious pluralism and the decline in involvement in established, tolerated and
illegal churches, and the Patronage Act had some relationship to the rise of pluralism in
Scottish Presbyterianism through the eighteenth century secessions and the 1843 Disruption. These observations lend credence to the thesis that religious pluralism necessitates
social differentiation. 142 However, it is idle to speculate on questions of causation between differentiation and religious involvement and change here. They all undoubtedly
owed something to earlier secularising processes catalysed by the Protestant Reformation, but perhaps an that may be ventured is that parallels exist between the legal developments and the religious pluralism. This, nevertheless, demonstrates that processes
generating legal development ought not to be considered in isolation from other social
processes. Indeed, considered in the framework of the theory of secularisation, British
constitutional development may be viewed as one of many social processes describable
in terms of a relationship to the religious.
138
139
140
141
142
26 Geo. 2 c26.
Jewish Naturalisation Act Repeal Act 1754 (27 Geo 2 cl).
8&9 Vic c52; also 21&22 Vic c48.
Henriques, supra note 114, 189-90.
Yinger, 'Pluralism, Religion and Secularism' (1967) 6 Journal ofthe Scientific Study of Religion 17,27.
The Br/tlsh Pattern of Secular/sat/on
203
However, the secularisation of the British constitution continues to be incomplete.
There is still a more significant intersection between church and state in Great Britain
than in Australia and the United States; the dislodgment of the established church is only
partial. The theoretically organic constitution, particularly as expressed in the doctrine of
parliamentary supremacy, enabled connections between the state and religion to be made
and to continue. Its theoretical power being unrestricted, Parliament could legislate on religious matters and be open to religious influence. It is true that the principle of toleration
could operate within the framework of the organic constitution and that it did moderate
church-state relations on rational lines. But parliamentary sovereignty in England and
(after Auchterarder) Scotland is likely to have permitted the separation of church and
state only as it was politically necessary or expedient.
Finally, in Great Britain from 1662 to the mid-nineteenth century secularisation appears to have been an inexorable process. Legal developments after the Glorious Revolution invariably promoted further differentiation and are correlated with increasing
religious pluralism. Even measures like the Uniformity Act and the Patronage Act, intended to enhance the connection between church and state, indirectly seem to be related
to further religious division. The doctrine of parliamentary sovereignty may have slowed
the process of secularisation in Great Britain but it still proceeded in the same direction.
It is possible to suggest that secularisation in the period was almost inevitable, regardless
of the constitutional structures in place.
The Ramsay Principle: Does It Now Apply in Australia?
Peter Harris
LL.B. (Hons)(Qld); LL.M. (Camb.) Solicitor, Queensland.
Introduction
The last decade has seen an explosion the world over in measures taken to combat the
avoidance of taxation. There is a new government consciousness of the technical loopholes which were exploited in reducing tax liability. Many of these loopholes have been
closed by revising substantive provisions or introducing specific anti-avoidance provisions within a particular division or part of the tax legislation. Further, some governments
such as Australia have enacted general anti-avoidance provisions to catch any residual
schemes falling outside the specific provisions.
By contrast, the English courts developed a new anti-avoidance doctrine known as the
Ramsay principle (after the case of W7: Ramsay v. I.R.C.I). At the time this principle was
introduced in the United Kingdom, there was considerable speculation in Australia
whether the principle would apply in this country. Traditionally, Australian courts have
paid great deference to United Kingdom tax doctrines, notwithstanding the fact that the
legislative scheme in that country is completely unlike the Australian regime. One key
difference is the inclusion of the general anti-avoidance provision in the Commonwealth
Income Tax Assessment Act 1936, a difference that many suggested would cause Australian courts to reject the English anti-avoidance principle. These observers proved correct
and in the case of John v. F.C.T.2 the Australian High Court confirmed that the English
principle would not be followed in Australia.
The Ramsay principle has recently been revitalised in the United Kingdom by the decision of the House of Lords in Ensign Tankers (Leasing) Ltd v. Stokes. 3 Some observers
have queried whether this re-endorsement and refinement of the English principle by the
House of Lords will cause the Australian High Court to reconsider its position. This article considers that possibility and contrasts the application of the Ramsay principle with
that of Part IV A of the Income Tax Assessment Act 1936 (hereafter all section references
are to the latter Act unless otherwise indicated).
The analysis initially proceeds in a chronological fashion. The first part of the article
explores the development of the English doctrine up to the time it was considered by the
Australian High Court in John s case. The evolution of the English principle is considered in terms of the leading English cases in the area. The second part of the article reviews the High Court's decision in John scase and analyses the basis for rejection of the
English principle. The third part examines Ensign Tankers and how it builds upon the earlier English case law. The last part of the article deals with the potential impact the developments in Ensign Tankers may have in Australia.
I. Development of the Ramsay Principle
Tracing the development of the Ramsay principle will begin by considering the tradi1
2
3
[1982] A.C. 300
(1988) 166 C.L.R. 417.
[1992] 2 All B.R. 275.