“More free from objection”: Oxford’s Interpretation of the 1871 Universities Tests Act

In many ways, the 1871 Tests Act, which required the removal of religious restrictions for all those who wished to take lay degrees or hold office within the University, can be seen as part of a pattern of “mopping up” outstanding issues, first addressed by the 1854 Oxford University Act. It is debated why the 1854 Act, which removed religious restrictions for undergraduates, did not address the restrictions on more senior members of the University. It may have been hoped that the guidance of the Royal Commissioners would lead the University to embrace progress and remove the restrictions themselves. Instead, the University struggled against these external impositions, attempting to minimise the impact of the legislation. It was precisely this resistance that led to the passing of the 1871 Act. Instead of learning from past experience, and embracing change, the University authorities continued to double-down, using even more narrow interpretations of the legislation, and this time, this led them into legal difficulties.

 

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Photo of the Sheldonian Theatre, Bodleian Library and Clarendon Building from the East in the 19th century, MS. Minn 6/81.

 

The University had used the loose wording of the 1854 Act to enable them to continue to at least segregate Conformists and Dissenters, by requiring candidates who wished to be excused from compulsory theological examinations to produce a certificate, declaring that they were not members of the Church of England. Whilst the ’71 Act is primarily celebrated for removing religious restrictions on those taking higher degrees or wishing to hold office, the Act clearly also attempted to stymie the University’s penchant for narrow interpretation. The ’71 Act uses over double the number of words than the ’54 in defining religious tests or oaths, stating that no person should be required to subscribe to any formulary of faith nor make any declaration of religious belief in order to enable them to take any degree, or hold office. The 1871 Act’s intention was clear – the University should remove the requirement for any statement of religious belief or religious observance from the route to a degree or holding of office.

 

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“The difference between Anglicans and non-Anglicans, noted by the examination system, was further underscored by the testamurs (certificates confirming a candidate had passed an examination) issued. Those who objected to the religious examination and were permitted to be examined in secular matter were awarded a different certificate stating that they had passed an examination in a book substituted for the sacred scriptures – “in libro pro Sacra Scriptura substitute.” (Reference: OUA/UR 3/1/39).

 

Despite the clarity of intent in the legislation, the conservative senior officers of the University persisted in using the wording of the legislation to minimise its impact on the religious uniformity of the University. To take one example, the Hebdomadal Council (essentially the Cabinet of the University) persisted in promulgating statutes requiring a students to submit a certificate declaring they were “outside the Church of England”, in order to be excused from the theological parts of examinations, as had been the case since 1854. The views of Council clearly did not unanimously reflect that of the wider University. The University Gazette records that many of the younger dons, as members of Congregation, suggested multiple amendments to the proposed statutes, to embrace the more liberal spirit of the act. These included the suggestion of removing all reference to objections being on religious grounds, and thus allowing any student, for whatever reason, to proffer the secular alternatives. The alterations were rejected, and Hebdomadal Council had suggested essentially the same narrow statutes to Congregation once again, when they received notice that the “legality of the proposed statute… had been called into question”.

 

Edward Bouverie Pusey a key member of the Hebdomadal Council

Edward Bouverie Pusey a key member of the Hebdomadal Council.

 

Hebdomadal Council were clearly concerned as they not only requested the opinion of Counsel, but also that of the Solicitor General. The Council asked whether the proposed certificate, requiring students to state if they were not members of the Church of England, was legal. If Counsel advised it was not, they asked whether they could, instead ask candidates to sign a statement that they wished to be excused from the theological examinations “on religious grounds.” Counsel’s response was a masterpiece of sophistry. They did not state that either of the University’s proposals were within the law, merely that they believed that the latter option was more “more free from objection”. Both options relied on a very narrow interpretation of the legislation. The legality of Council’s original proposal relied on the fact that requiring a declaration regarding membership of the Church of England did not prevent anyone from taking a degree or holding office. The second option, where the certificate would simply state “on religious grounds” was less open to legal challenge because this route did not require a positive statement of affiliation or non-affiliation with any particular church. Nevertheless, the tone of Counsel’s response is clear – it was still an objectionable action.

 

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Petition to the House of Lords opposing the removal of the 1871 Religious Tests Act.

 

Thus legally warned to avoid a statement from students regarding their membership of the Church of England, an embarrassed Council had no option but to circulate a note to Congregation, asking them to vote against the already issued statutes. However, rather than taking this public confirmation that their approach had strayed into the realms of illegality as an opportunity to embrace the spirit of the law, the University persisted in its desire to religiously classify students. The replacement statutes issued required exempt candidates to state they objected on “religious grounds.”

The fact that Parliament did not initiate another piece of legislation, or bring this matter within the purview of the later Selbourne or Cleveland Commissions (both instigating further reforms in other areas of the University), might suggest a faith in the changes the Act had accomplished. Members of all religious beliefs could now, at least, join the University, rise through its ranks, and hold office, replacing those currently in power. The University was now capable of evolving towards change from within.

 

Faye McLeod, Keeper of the University Archives. 

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