IT IS three hundred years this month since the repeal of the first Test Act, part of the series of English penal laws that served as a religious test for public office. Enacted towards the end of the 17th century, they imposed various ‘civil disabilities’ on Roman Catholics and Nonconformists, barring them from office. The underlying principle was that none but people taking communion in the established Church of England were to be eligible for public appointments.
Under this legislation those who refused to attend Church of England service (recusants), whether Catholic or Nonconformist, could also suffer severe penalties. But from 1800 these Acts were seldom enforced, except at Oxford and Cambridge universities, where Nonconformists and Catholics could not matriculate (Oxford) or graduate (Cambridge). The Acts were finally repealed over a number of years with little controversy.
At a celebration to mark this in Parliament on January 15, Bishop Nazir-Ali, alongside Sir Roger Scruton, discussed the background of the Test Acts and significance of their repeal.
The transcript of Bishop Michael’s address follows.
It is a great honour to speak alongside Sir Roger [Scruton] and thank you for the invitation. I’m very pleased to hear some of the things he has said. I thought what I might do is to give ourselves some of the background to both the existence of the Test Acts and their repeal – why were they thought to be necessary and what resources were there from them to be repealed in the last 300 years or so.
I wanted to begin with Sir Larry Siedentop’s very influential book Inventing the Individual where he speaks of the primacy of the person. Because the person is primary, conscience (as Sir Roger has just said) becomes primary as well. Conscience is an internal forum that orientates us towards a judgement that is not just of the ways of this world. That is the point about conscience, whether you regard it simply as something that is of the person or as referring to a final judgement. But the blame for the primacy of the person, Sir Larry lays at the door of Christianity. This is because of its emphasis on personal commitment and faith. When compared to other religions of the time (family, civic or even imperial), we find that Christian faith emphasises personal faith.
In the early years of the church, many of those who were martyred were martyred for precisely this reason: they refused to give to Caesar which was due to God, when Caesar demanded it. We come to Constantine and the ambiguity of what followed, but just to note that the Edict of Milan (which was neither an edict nor from Milan) was not just about the enfranchisement of Christians. It was actually a proclamation of religious liberty to all the subjects of the Roman Empire. This is often forgotten because rapidly under Constantine Christianity became tolerated and official, but that is not how he began. It was actually a charter for religious freedom so early in the day.
Constantine was followed by Theodosius and Justinian and the increasing repudiation of the primacy of conscience and of toleration by what became the official church. There were always people on the peripheries – the Coptic Christians in Egypt have never been an established church and have always been persecuted. Then we had St Augustine, so influential for the rest of the history of Christianity in the West, who first was hostile to any idea of coercing people to believe. But then when the Christianised Roman Empire took action against the Donatists, he famously changed his mind by saying that the Donatists could be persecuted as long as the persecution was moderate. What is moderate persecution? I often ask myself that in today’s world.
Quite a lot of the discussion about religious freedom today, however, goes back to the Dominicans and to St Thomas Aquinas who, in the context of a vigorous dialogue at that time with Islam, actually said that Muslims and Jews could not be coerced into believing. This commitment of the Dominicans had a very interesting manifestation across the waters. When the question arose about the rights of the indigenous people of the Americas, many people in Western Europe were keen to deny that those people had any rights whatsoever because they were only interested in conquering their land and so on. Against this, Bishop Bartolome Las Casas (almost alone at the time) stood against this view and held that the Indians (as they were mistakenly called) could not be deprived of their liberty, their property or their mobility because they too had been made in God’s image. This is an argument that keeps recurring and that most of all they could not be coerced into the Catholic faith. We are talking about the 16th century when religious wars were rife in Europe. However, Las Casas was not only able to say this but to argue his case in the heart of Europe (in the University of Salamanca) against the so-called humanists of the day. Thinking at that time was divided between those who believed in the natural freedom of the human person and those who believed in natural slavery – as had Aristotle of course – and Las Casas had to argue against the natural slavery school, that people are naturally born free. We take this for granted but of course in those days it wasn’t. The whole idea of natural rights or of human rights (including of course the freedom of religion) has its origin in this debate between Las Casas and Sepulveda and later on between the natural freedom school and Grotius himself.
The natural freedom view is to be found in the writings of John Locke and of the moderate Enlightenment. I mention John Locke because he uses arguments very similar to the Dominicans about human freedom being based on every human person being made in God’s image. He says that almost ad nauseam. The fact that Locke himself did not act on his own beliefs is another matter in the context of his property in North America but what I think is worthy of note at this point is that Locke is seen as being the influence on the Toleration Act. This stands behind the beginning of the repeal of the various Tests in the century that was to follow. Of course it is true that at the Reformation people demanded the right to read the Bible. Though it has to be admitted that, whether in the magisterial or in the radical Reformation, people wanted freedom for themselves but not for anyone else. This also applies to the Puritans who went to America. They went there because they wanted freedom for themselves but when they set up the Colony in Massachusetts it was not for anyone else.
Against this, there were three people who stood out on non-conformity as Las Casas had in the Catholic tradition. We have to mention Leonard Busher, a Baptist in this country who already in 1614 was proclaiming religious liberty for all. That is not just freedom of worship but freedom to believe, manifest your belief and to share it. Also the Levellers, led by people like Richard Overton, proclaimed religious liberty for everyone during the Commonwealth. In the United States, Roger Williams was expelled from the Massachusetts colony for being a heretic. He went and established a colony on what is now Rhode Island and once again said that in the new colony there would be religious freedom for everyone. Such then was the situation on the eve of the Toleration Act and its consequences.
The evangelical revival in the 18th century is of course well known for its humanitarian concerns, as well as for the preaching of the Gospel. For instance, their commitment to the abolition of the slave trade (and later slavery itself), the improvement of working conditions and the beginning of universal education. All of these, we can say, had a very strong evangelical component to them. However, they were also committed to religious freedom and it is interesting that in the debates about the Catholic Relief Acts, beginning towards the end of the 18th century right up until 1832, the evangelicals were strong supporters of Catholic Emancipation. This is not because they agreed with Catholics doctrinally but because they believed in religious freedom. John Wesley did so both as an Anglican and as the leader of the emerging Methodist movement. Like Locke and Las Casas, evangelicals believed in religious liberty because of their belief that human beings had been made in the image of God. They had been created free – the Gospel could not be proclaimed to them unless they could freely respond to it. All of these were theological reasons for believing in freedom but the language they used in public discourse and in advocating legislation was that of natural rights. They were using Enlightenment vocabulary to take forward a theological agenda. And so there emerged in the 19th century what I have called an evangelical enlightenment consensus about human dignity, equality – that is the equality of persons, not of every kind of lifestyle or behaviour – and liberty. This consensus about human welfare in general held until the 1960s. For various reasons it began to unravel from then on and has brought about the situation that Sir Roger has just described in relation to people like Professor Finnis.
There are two things to say about our present situation. One is that in the repeal of the Test Acts and what was to follow, the primacy of the conscience was increasingly recognised. This is found in this country right up to our own day. For example, conscientious objection for those who did not want to engage in armed conflict was long recognised and alternatives provided for such people in those cases. Even in legislation like the Abortion Act (though I must admit it is not my favourite piece of legislation) conscience is recognised in terms of whether people with well-formed religious beliefs can be compelled to take part in procedures against their belief, against their conscience. The HFE Act [Human Fertilisation and Embryology Act] also recognises conscience. But the most recent legislation, which we might term equality legislation or hate speech legislation, has not done so. This is creating some of the problems that Sir Roger was mentioning. If you do not allow for conscience in legislation, then people do not allow for it in the streets. This is something that we have to look at very carefully because almost unintentionally it could promote the kind of totalitarianism that we would want to avoid and that the repeal of the Test Acts sought to undo.
The second point, and the last point I want to make, is what this has to do with British foreign policy. The kind of religious freedom that was promoted by the successive repeal of the Test Acts is now being denied to people in large parts of the world. One hundred members of the Early Rain Church and its Pastor have recently been arrested in China. Simply for challenging the government’s competence in certain areas of life like freedom of worship. This is also true of Iran – over the Christmas period large numbers of Christians were arrested to prevent them from making obvious their beliefs during this period. I am glad that the Foreign Secretary has now established this review about how Britain can promote religious freedom elsewhere, and I look forward to its findings. However, a number of things can said about this. First of all, we are not just talking about freedom of worship but of freedom to believe (or not to believe), freedom to give up a certain belief and adopt something else, freedom to share one’s beliefs. In our foreign policies, we have to make sure that Britain’s commitment to the UN Declaration on Human Rights (particularly article 18) is not compromised. There is the danger of it being compromised in a number of ways. The Foreign and Commonwealth Office has not been hostile to the United Kingdom sponsoring a conference on Article 18 with various international governments and stakeholders attending in order to reaffirm the central importance of Article 18 in the cause of freedom in the world. In the Islamic world there have been a number of declarations of human rights and I welcome them, of course. But none of them has anything near equivalent to Article 18 in them and we need to ask why.
If among other things, such as the reform of education and the revision of text books, the FCO could promote a process and a gathering for the reaffirmation of Article 18 of the UNDHR, that would be a great way of celebrating this anniversary of the repeal of the Test Acts.