Establishment

Establishment (O. Fr. establissement, Fr. établissement, late Norm. Fr. establishement, from O. Fr. establir, Fr. établir, Lat. stabilire, to make stable), generally the act of establishing or fact of being established, and so by transference a thing established. Thus we may speak of the establishment (i.e. setting up) of a business, the “long establishment” of a business, and of the manager of “the establishment.” In a special sense the word is applied, with something of all the three above-mentioned connotations, to certain religious bodies in their relation to the state. It is with this latter that the present article is concerned.

Perhaps the best definition which can be given, and which will cover all cases, is that establishment implies the existence of some definite and distinctive relation between the state and a religious society (or conceivably more than one) other than that which is shared in by other societies of the same general character. Of course, a certain relationship must needs exist between the state and every society, religious or secular, by virtue of the sovereignty of the state over each and all of its members. Every society must possess certain principles or perform certain acts, and the state may make the profession of such principles unlawful, or impose a penalty upon the performance of such acts; and, moreover, every society is liable before the law as to the fulfilment of its obligations towards its members and the due administration of its property should it possess any. With all this establishment has nothing to do. It is not concerned with what pertains to the religious society qua society, or with what is common to all religious societies, but with what is exceptional. It denotes any special connexion with the state, or privileges and responsibilities before the law, possessed by one religious society to the exclusion of others; in a word, establishment is of the nature of a monopoly. But it does not imply merely privilege. The state and the Church have mutual obligations towards one another: each is, to some extent, tied by the existence of this relationship, and each accepts the limitations for the sake of the advantages which accrue to itself. The state does so in view of what it believes to be the good of all its members; for “the true end for which religion is established is not to provide for the true faith, but for civil utility” (Warburton), even if the latter be held to be implied in the former. On the other hand, the Church accepts these relations for the facilities which they involve, i.e. for its own benefit. It will be seen that this definition excludes, and rightly, many current presuppositions. Establishment affirms the fact, but does not determine the precise nature, of the connexion between the state and the religious society. It does not tell us, for example, when or how it began, whether it is the result of an unconscious growth (as with the Gallican Church previous to the French Revolution), or of a determinate legislative act (as with the same Church re-established by the Concordat of 1801). It does not tell us whether an endowment of the religious society by the state is included; what particular privileges are enjoyed by the religious society; and what limitations are placed upon the free exercise of its life. These things can only be ascertained by actual inquiry; for the conditions are precisely similar in no two cases.

To proceed to details. At the present day there is no established religion in the United States, the German empire as a whole, Holland, Belgium, France and Austria-Hungary (saving, indeed, “the rights of the sovereign arising from ecclesiastical dignity”1); whereas there are religious establishments in Russia, Greece, Sweden, Norway, Denmark, Prussia,2 Spain, Portugal and even in Italy, as well as in England and Scotland. These, however, differ greatly amongst themselves. In Russia the “Orthodox Catholic Eastern” is the state religion. The emperor is, by the fundamental laws of the empire, “the sovereign defender and protector of the dogmas of the dominant faith, who maintains orthodoxy and holy discipline within the Church,” although, of course, he cannot modify either its dogmas or its outward order. Further, “the autocratic (i.e. imperial) power acts in the ecclesiastical administration by means of the Most Holy Ruling Synod, created by it”; and all the officers of the Church are appointed by it. The enactments of the Synod do not become law till they have received the emperor’s sanction, and are then published, not in its name but in his; and a large part of the revenues of the Church is derived from state subsidies. In Greece “the dominant religion (Ἡ ἐπικρατοῦσα θρησκεία) is that of the Eastern Orthodox Church of Christ”; and although toleration is otherwise complete, no proselytism from the Church of Greece is allowed. The king swears to protect it, but no powers pertain to him with regard to it such as those which the tsar enjoys; the present king is not a member of it, but his successors must be. In Sweden, Lutheranism was adopted as the state religion by the synod of Upsala (Upsala möte) in 1593, and the king must profess it. The “Lutheran Protestant Church” retains an episcopal order, and is supported out of its own revenues. Archbishops and bishops are chosen by the king out of those names submitted to him, and he also nominates to royal peculiars. The ecclesiastical law (Kyrkolag), first constituted in 1686, is part of the law of the state, but may not be modified or abrogated without consent of a General Synod; and although ad interim interpretations of that law may be given by the king on the advice of the Supreme Court, since 1866 these have been subject to review and rejection by the next General Synod. In Norway the “Evangelical-Lutheran” is the “official religion,” but the Church is supported by the state, its property having been secularized. It is also more subject to the king, who by the constitution is to “regulate all that concerns divine service and the clergy,” and to see that the prescribed order is carried out. It is much the same in Denmark, where, however, the “Evangelical-Lutheran Church” has since the fundamental constitutional law of the 5th of June 1849 been officially described as the National Church (Folkekirche) instead of the State Church (Statskirche) as formerly, and the constitution provides for its regulation by further legislation, which has not yet been passed. For Prussia, see under that heading; it need only be added that self-government still tends to increase, but that the emperor William II. has exercised his office as summus episcopus more freely than most of his predecessors. In Spain the “Catholic, Apostolic and Roman” religion is that of the state, “the nation binds itself to maintain its worship and its ministers,” and the rites of any other religion are only permitted in private. The patriarch of the Indies and the archbishops are senators by right, and the king may nominate others from amongst the bishops; only laymen may sit in the chamber of deputies. Convents were suppressed, and their property confiscated, in 1835 and 1836; in 1859 the remaining ecclesiastical property was exchanged for untransferable government securities and the support of the clergy of the State Church is assured by an unrepealed law previous to the present constitution. In Portugal it is much the same, but all the home bishops sit in the upper chamber as peers (Pares do Reino) by right, and there is no restriction on membership of the chamber of deputies. A more important point is that the king confers all ecclesiastical benefices and nominates the bishops, instead of their being chosen, as in Spain, by agreement between the civil power and the papacy. In Italy, in spite of the feud between the papacy and the civil power, the fact remains that, by the Statuto fondamentale, “the Catholic, Apostolic and Roman religion is the sole religion of the state,” and the king may nominate “archbishops and bishops of the state” to be senators. The Legge sulle prerogative del Summo Pontifice, &c., or “Law of Guarantees,” by which the papal prerogatives are secured, has been declared by the Council of State to be a fundamental law; and while many civil restrictions upon the activities of the Church are removed by it, outside Rome and the suburbicarian dioceses the royal exequatur is still required before a bishop is installed. Moreover, the bulk of Church property having been secularized, the Italian clergy receive a stipend from the state.

Establishment is, of course, a distinctively English term, but it implies precisely the same thing as “Staatsreligion” or “église dominante” does elsewhere, neither more nor less. It denotes the existence of a special relationship between Church and State in Britain. Church and state without defining its precise nature. The statement that the Church of England or the Scottish Kirk is “established by law” denotes that it has a peculiar status before the law; but that is all. (a) There is no basis whatever for the once popular assumption that the word “established” as applied to the Church means “created,” or the like; on the contrary, the modern use of the word in this sense is a misleading perversion. To establish is to make firm or stable; and a thing cannot be established unless it is already in existence. A few examples will make it clear that this is the true sense of the word, and that in which it is used here. “Stablish the thing, O God, that thou hast wrought in us” (Ps. lxviii. 28, P.B.; A.V. and R.V. “strengthen”) implies that the thing is already wrought; it could not be “stablished” else. “Stablish your hearts” (Jas v. 8) implies that the hearts are already in existence. “Until he had her settled in her raine With safe assuraunce and establishment” (Faerie Queene, v. xi. 35) would have been impossible unless the reign had already begun. This is the meaning of the words in many Tudor acts of parliament, “be it enacted, ordained and established,” or the like (21 Hen. VIII. c. 1; 27 Hen. VIII. c. 28, s. 9; 28 Hen. VIII. c. 13 [Ireland]; 28 Hen. VIII. c. 18 [Ireland]; 33 Hen. VIII. c. 27; 1 Eliz. c. 1, ss. 15, 17; 1 Eliz. c. 4, s. 4); that which is then and there enacted is to be valid for the future. (b) Nor is it necessarily implied that establishment is a process completed once for all. Every law touching the Church slightly alters its conditions; everything that affects the relations of Church and state may be regarded as a measure of establishment or the reverse. When the two Houses of Parliament, in an address to William III. after his coronation, spoke of their proposed measures of toleration, the king said in his reply, “I do hope that the ease which you design to Dissenters will contribute very much to the establishment of the Church” (Cobbett, Parl. Hist. v. 218). And Defoe (in 1702) published an ironical tract with the title, The Shortest Way with the Dissenters, or Proposals for the Establishment of the Church. (c) Nor is it necessarily implied that there was any specific time at which establishment took place. Such may indeed be the case, as with the Kirk in Scotland; but it certainly cannot be said that the English Church was established at any particular time, or by any particular legislative act. There were, no doubt, periods when the existing relations between Church and state were modified or re-defined, notably in the 16th and 17th centuries; but the relations themselves are far older. In fact, they existed from the very first: the English Church and state grew up side by side, and from the beginning they were in close relations with one another. But although the state of things which it represented was there from the first, the term “established” or “established by law” only came into use at a later date. Until there was some other religious society to be compared with it such a distinctive epithet would have had no point. As, however, there arose religious societies which had no status before the law, it became more natural; and yet more so when the formularies of the Church came to be “established” by civil sanctions (the Books of Common Prayer by 5 and 6 Edw. VI. c. 1, s. 4, &c; the Articles by 13 Eliz. c. 12; the new Ordinal by 13 and 14 Car. II. c. 4, title). Accordingly the Church itself came to be spoken of as established by law; first, it would seem, in the Canons of 1604, and subsequently in many statutes (Act of Settlement, 6 Anne, c. 8 and c. 11, &c). In all such cases the Church is described as already established, not as being established by the particular canon or statute. In other words, the constitutional status of the Church is affirmed, but nothing is said as to how it arose.

The legislative changes of the 16th and 17th centuries brought “establishment” into greater prominence and greatly modified its conditions, but a moment’s thought will show that it did not begin then. If, e.g., all post-Reformation ecclesiastical statutes were non-existent, the relations between Church and state would be very different, but there would still be an “establishment.” The bishops would sit in the House of Lords, the clergy would tax themselves in convocation, the Church courts would possess coercive jurisdiction, and so on. The present relations of Church and state in England may be briefly summed up as follows:—(1) The personal relation of the crown to the Church, including (a) restraints upon the action of convocation (formulated by 25 Hen. VIII. c. 19); (b) nomination of bishops, &c. (25 Hen. VIII. c. 20); (c) power of supervision as visitor, long disused (26 Hen. VIII. c. 1; 1 Eliz. c. 1, s. 17); (d) power of receiving appeals as the fount of civil justice (25 Hen. VIII. c. 19, &c). In connexion with these, it must be borne in mind that (a) the holder of the crown receives coronation from the church and takes an oath having reference to it (1 Will. III. c. 6), and (b) the crown is held on the condition of communion with the Church of England (Act of Settlement; the conditions of communion are laid down in the Prayer Book, which itself is sanctioned by law). (2) The relation of the Church to the crown in parliament. No change has been permitted in its doctrine or formularies without the sanction of an act of parliament. (3) Privileges of the Church and clergy. Of these may be mentioned (a) the coercive jurisdiction of the Church courts; (b) the right of bishops to sit in the House of Lords. It need hardly be said that establishment in England does not include an endowment of the Church by the state. Nothing of the kind ever took place on any large scale, and the grants for Church purposes in the 18th century are comparable with the regium donum to Nonconformists.

The position of the Church of Ireland until its disestablishment (see below) was not dissimilar. With Scotland the case is different. The establishment of the Kirk was an entirely new process, carried out by a more or less definite series of legislative and administrative acts. The Convention of Estates which met at Edinburgh in 1560 ordered the drawing up of a new Confession of Faith, which was done in four days by a committee of preachers, and on the 24th of August it passed three acts, one abolishing the pope’s authority and all jurisdiction of Catholic prelates, another repealing the old statutes in favour of the Old Church, the third forbidding the celebrating and hearing of mass under penalty of imprisonment, exile and death. The intention was to make a clean sweep of the Old Church, which was denounced as “the Kirk Malignant.”3 The new model thus set up was confirmed by the Scottish act of 1567, c. 6, which declared it to be “the onely true and halie kirk of Jesus Christ within this realme.” Again, after the revolution of 1688 had put an end to the attempts of the Stuart kings to impose the episcopal model on Scotland, by the act of 1690, c. 5, the crown and estates “ratifie and establish the Confession of Faith, ... as also they do establish, ratifie and confirm the Presbyterian government and discipline.” The “Act of Security” of 1705, as incorporated in the Act of Union 1706, speaking of it “as now by law established,” says that “Her Majesty ... doth hereby establish and confirm” it, and finally declares this act, “with the Establishment therein contained,” to be “a fundamental and essential condition of the Union.” Nevertheless, the conditions of establishment in the Scottish Kirk are much easier than those of the Church of England. It is bound by the statutes sanctioning its doctrine and order, but within these limits its legislative and judicial freedom is unimpaired. A royal commissioner is present at the meetings of the general assembly, but he need not be a member of the Kirk; and there is no constitutional tie between the crown and the Kirk such as there is in England. There is what may accurately be described as a state endowment, the bulk of the property of the Old Church having been conferred upon the Scottish Kirk.

Not unnaturally the organization of Anglican Churches in the colonies was followed in some cases by their establishment, which included endowment. It was so, for example, in the East and West Indies; and the disestablishment The Colonies. of the West Indian Church in 1868 was followed, in 1873, by a re-establishment of the Church in Barbados by the colonial legislature. India is the only other part of the empire (outside Great Britain) in which there is to-day a religious establishment.

Disestablishment is in theory the annulling of establishment; but since an established Church is usually rich, disestablishment generally includes disendowment, even where there is no state endowment of religion. It is, in short, the Disestablishment. abrogation of establishment, coupled with such a confiscation of Church property as the state thinks good in the interests of the community. The disestablishment of the West Indian Church in 1868 has already been referred to; in 1869 the Irish Church Disestablishment Bill was passed. Private bills relating to Scotland have more than once been brought forward. In 1895 the Liberal government introduced a suspensory bill, intended as the preliminary step towards disestablishing and disendowing the Church in Wales; it was withdrawn, however, in the same session, and the question of Welsh disestablishment slumbered until in 1906 a royal commission was appointed by the Liberal government to inquire into the subject, and in 1909 a bill was introduced on much the same lines as in 1895.

The case of the Irish Church will illustrate the process of disestablishment, although, of course, the precise details would vary in other cases. The Irish Church Act was passed in 1869 by Gladstone’s first government, after considerable opposition, and provided that from January 1, 1871, the union created by statute between the Churches of England and Ireland should be dissolved, and the Church of Ireland should “cease to be established by law.” Existing ecclesiastical corporations were dissolved, and their rights ceased, compensation being given to all individuals and their personal precedence being secured for life. All rights of patronage, including those of the crown, were abolished, with compensation in the case of private patrons; and the archbishops and bishops ceased to have the right of summons to the House of Lords. All laws restraining the freedom of action of the Church were repealed; the ecclesiastical law, however, to subsist by way of contract amongst the members of the Church (until altered by a representative body). Provision was made for the incorporation by charter of the representative body of the Church, should such a body be found, with power to hold landed property. All existing ecclesiastical property was vested in a commission, which was to give compensation for life interests, to transfer to the new representative body the churches, glebe houses, and £500,000 in compensation for endowments by private persons since 1660, and to hold the rest for such purposes as parliament might thereafter determine.

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