M^-' <^ '^' e53L fS>''-M „«E.c: c <• < c «" ■ ■Ctt Of:* t .c c^ C f c 'TC;.* t atm sui jwtcstatem libcrh ministrarc .... vakat." * But besides the executive acts of suspension * Collier, ix. <'}7G. c 2 20 REMARKS ON THE ROYAL SUPREMACY. above named, we have another remarkable fact, a favourite one with Roman Catholic controversialists, in the Statute 8 Eliz. c. 1, which relates to the consecrations of the first bishops of that reign. As to this Act of Parliament I would observe, in the first place, that it carefully avoids pretending to confer proprio vigore the episcopal character or power. It is entitled " An Act declaring the making and consecrating of the archbishops and bishops of this realm to be good, lawful, and perfect." The doubts or ques- tions which it recites in the preamble, are on the point " whether the same were and be duly and orderly done according to the lata or not :"* the remedy is partly to show that it has been " duly and orderly done, according to the laws of this realm ;" and partly " to provide for the more surety thereof." It appears that Bishop Bonner had alleged that the Ordinal, repealed along with the Prayer Book in the reign of Mary, had not been separately named in the reviving Statute 1 Eliz. c. 2.t The objection seems to have been frivolous, since neither was it expressly named in the Statute of repeal. And the true meaning to be assigned to the Act appears to be this : that it was passed ex majori cauteld, not because the doubts entertained were supported by any strength of reasoning, but because the consecration of the Bishops was the corner-stone of the ecclesiastical order, and it was therefore thought necessary to give it all the support and sanction which it could derive as matter of law from the most express and detailed provisions. Let us however suppose, as may be the case, that the Act had a wider purpose than merely to meet this technical cavil on the wording of the Statutes ; that it contemplated, and sought to meet, the whole of the objections urged by the partisans of the Roman See against the consecration of Parker in regard to mission and jurisdiction. Does it in this point of view sustain any such inference as that the Church of England denies the existence " of any special power to govern the Church beyond that which is in the civil magistrate ?" X Be it observed all along, the question is not whether the Statutes of the Reformation affirmed anew that which, according to the laws of the Church, was already sufficiently * Preamble, 8 Eliz. e. 1. t Gibson's Codex, p. 100. X Allies, p. 61. REMARKS ON THE ROYAL SUPREMACY. 21 affirmed for ecclesiastical purposes alone ; but whether in making- such affirmation they denied either directly or by implication that the matter in hand might have a distinct spiritual basis inde- pendent of secular legislation. We will assume, then, that the Statute intended to exclude and pat to silence all objections, to include in its purview all the circumstances of the consecration of Parker, and to assert the validity of his mission and jurisdiction. Now this I allege might be done, with perfect consistency, by those who were most firmly convinced that, for spiritual purposes, all these were already valid ; because upon that validity depended not spiritual acts only, but a great number of secular, and perhaps a yet greater number of mixed transactions, appertaining to bishops, and utterly incapable of deriving validity from theological argument, or from any source whatever except the law of the land. Suppose, for instance, that a tenant of the See of Canterbury had refused to pay rent to Parker under a lease, on the ground that he was not a lawful incumbent. The very best treatise, that a Courayer could have written to show that Parker had mission and jurisdiction in the sense of the Church, would not have availed him ; nothing but a statute would have redressed the wrong ; and it was therefore reasonable to pass a statute for the purpose. And if its general aim did not disparage the inherent faculties of the Church, neither did its language ; for both in title and in preamble, as I have shown, it confined itself to legal regularity ; and in the enacting clause touching the bishops and clergy concerned, the provision is really worded with the utmost care, so as to avoid the su])position of a pretension to give spiritual power ; it being this : that the said bishops and clergy " Be in very deed, and also by authority hereof declared and enacted to be, and shall be, archbishops, bishops, priests, minis- ters, and deacons, and rightly made, ordered, and consecrated." Had the intention been confined to clearing up a doubtful point of statute law, the enactment would simply have declared these persons to be bishops and clergy respectively : there was no room for a distinction between what they " be in very deed" and what they are to be " declared and enacted to be ;" but the distinction is marked in the strongest manner by the word " also ;" and in 22 REMARKS ON THE ROYAL SUPREMACY. tnitli, while they were reeitcd to be bishops of the Church simply, they were declared and enacted to be bishops of the Church ac- cording to the laws havino; force within the realm. Nor will it avail to say that the Legislature herein recognised only what is called the power of order as inhering in the Church, and not jurisdiction. For the exercise of the power of order, or the conveyance of the episcopal character, is itself an act of jurisdic- tion : the whole question in doubt in this case was, whether its exercise had been good, as to certain particular instances, in the eye of the law. It was expressly affinned by the words which I have cited to be valid in very deed as to the conveyance of the episcopal character, apart from the enactment declaring and constituting it valid for the purposes of law, which is only to say, in other words, that the exercise of jurisdiction was averred to be valid for spiritual purposes apart from the sanction of the Legislature. To sum up the whole, then, I contend that the Crown did not claim by statute, either to be of right, or to become by convention, the source of that kind of action, which was committed by the Sa- viour to the Apostolic Church, whether for the enactment of laws or for the administration of its discipline : but the claim was, that all the canons of the Church, and all its judicial proceedings, inas- nnich as they were to form parts respectively of the laws and of the legal administration of justice in the kingdom, should run only with the assent and sanction of the Crown. They were to carry with them a double force — a force of coercion, visible and palpable — a force addressed to conscience, neither visible nor palpable, and in its nature only capable of being inwardly appreciated. Was it then unreasonable that they should bear outwardly the tokens of that power to which they were to be indebted for their outward ob- servance, and should work only within by that wholly different in- fluence that governs the kingdom which is not of this world, and Hows immediately from its King ? But while I am unable to find in the laws or principles of the Reformation, as it was settled among us, any acknowledg-ment that the Cro^\■u is the source of ecclesiastical and spiritual jurisdiction, I will go a step further and say, that although this is not language which could be legitimate and safe in the mouth of the Church, it is neither inuntelligible nor of necessity intolerable as the language of law and of its professors. REMARKS ON THE ROYAL SUPREMACY, 23 Whether the Church can exist in security and work in peace by the side of a system of law framed on such a principle, or, which I take to have been our case, where the members of the legal profes- sion have favoured the attachment of such a sense to laws not requir- ing and in strictness not properly admitting it, is a question of vital importance, but one, as far as appears to me, to be determined according to times and circumstances carefully considered, and not by hasty inferences from abstract principle. Holding, then, by the proposition, that the Church cannot be made responsible for glosses put upon the law to her prejudice, and for the professional traditions which may influence the courts, but of which she cannot minutely follow the rise, and against which she has no means of contending till a crisis is brought about ; but that she is properly and morally responsible only for those statutes in their plain meaning which she has formally accepted, or else made her own by evident, general, and continued acquiescence — I should wish also and earnestly to represent how much is to be said on be- half of the royal supremacy, even as it is commonly understood by that profession, which has always been jealous, and within certain limits legitimately jealous, of ecclesiastical power. Even if we superadd to the restraints imposed by law upon the legislative power of the Church the doctrine that the Crown is the fountain of ecclesiastical and spiritual jurisdiction : even if we allow this, for argument's sake, as a true description of the legal relation to the Crown which the Reformed Church has inherited, still I say, do not let the men of this day be too hasty in consigning the memory of their forefathers to condemnation and disgrace, but let us con- sider whether, even under these hard and untrue conditions, it can be pleaded against the Church of England that she has made over her spiritual trust to a secular power, and sold herself for gold. Strong, indeed, are the general reasons, applicable to the state of society which has until recently prevailed, for a close amalga- mation between ecclesiastical and civil authority. Tliey are founded in human nature, and in the nature of the societies wiiich are the depositaries of each power respectively. They are pain- fully illustrated by the convulsive struggles arising out of those collisions that history records. We have been thus far on the question of fact, what the actual constitution was. ^Ve come now to the question of right, how far 24 REMARKS ON THE ROYAL SUPREMACY. it was accordant with the nature and obligations of the bodies con- cerned. The temporal aspects of the life of man have ever been, and must always be, in the closest relations with the spiritual. Before the advent of our Lord the system now called Erastian prevailed : it has all the authority of Pagan precedent. Creed, priesthood, ritual, all that constituted the religion of the masses of mankind, were in a subjection to the state, only qualified by such advantage as the necessities of the civil power and the superstition of the vulgar secured to the priesthood. The religion of the world was broken up into fragments, and the State determined the order and the re- lations in which these should stand side by side. It was a power born to universal command, and to very high and sacred duties. Its first and inalienable vocation, says Sa\igny,* was to make the idea of right as between man and man dominant in the visible world. What part of life is there, whether domestic, ci\dl, or reli- gious, that is not in some sense touched by this all-embracing yet, I must add, this just definition ? But after the promulgation of the Gospel it was found that a new^ society had been established in the world, claiming to pervade all lands and to command the alle- giance of all men in each of them. This allegiance, too, though spiritual in its kind, yet reached in some sense to all their acts, because all the acts of a Christian were to be done to the glory of God, and therefore must needs be under the guidance of the spiritual principle, which had its home in the Church, and whose light came by the channel of her teaching. It is true that this latter king- dom was a kingdom not of this world, but it was in this world ; it had numberless points of necessary contact with its ajffairs, and the infirmity and corruption that belong to man, in or out of the hier- archy, wrought constantly to increase them by adding others which were needless and hurtful to spiritual ends. How to adjust the claims of these two authorities upon the same ground and in the same subject matter, each claiming universal command, though in respects primarily distinct, was a problem, not indeed impossible of solution, but yet the most difficult, as history bears witness, that has ever been presented to man in his social relations. * Savigiiy, Rom. Recht., b. ], o. 2, s. ix. REMARKS ON THE ROYAL SUPREMACY. 25 There were indeed periods, such as that of Constantine, and more especially of Justinian and Charlemagne, when the har- mony of the Church and the State might have seemed to he perfect, and yet all that was necessary for the separate freedom of each to be secured. But there were other periods extending over generations or even centuries when miscarriages in regard to this problem had convulsed Christendom with its longest and bloodiest wars. In no country had there been more frequent and habitual collision than in our own, between the civil power on the one hand, and the Papal chair, with its English partisans, on the other. Now the records of history appear to shov.' that in days long antecedent to the Reformation, which were prosperous and honourable to both the parties in this great arbitrement, the basis on which they co-operated was this : the civil power lent the sup- port of law and the strong hand to the decrees of the Church, and aided her to make head against the anarchy of the times : the Church promulgated those decrees under the sanction of the civil power, and thus afforded it an adequate guarantee against the encroachments of priestly ambition, while to the people law was presented as an unity, and escaped the risk of losing by division, and perhaps by conflict, the force of its claim on their obedience. It is not necessary to examine up to what precise point this is true, or whether at any time it extended so far as to a formal contract on the part of the Church, surrendering her separate action : all that is now assumed is this, that in such periods as those of Justinian and Charlemagne the general rule was such as has been described.* The submission of the English clergy car- ried that general rule into fixed agreement. But although the rules of ecclesiastical order thus went forth in the garb and with the sanctions of civil law, there was no real disparagement in this to the office of the Church, because the hand of the State in Church affairs which externally affixed the seal of law was guided by the mind of the Church. It was not the mere personal will of Justinian that framed the Pandects, and in them gave to the world an immortal store of the principles * This subject has been very ably treated in an article of the ' Christian Remembrancer,' for April, 1850, entitled ' Church and State.' 2G REMARKS ON THE ROYAL SUPREMACY. of civil jurisprudence, but it was the legal mind of his age that collected from all points and reduced into written maxims the matured fruits of former wisdom and experience, and fashioned them for systematic and authoritative use ; so in the work of ecclesiastical legislation, although the stamp of civil sovereignty gave visible and coercive authority to legislation that was to bind at once in the exterior and the mter'wr fo7-um, it was the mind of the Church that advised and informed the Emperor, and prac- tically determined the matter to which obedience was to be paid. The conditions under which Church-power was to be exercised and issued were, in truth, much more than any question of en- dowment, the real terms of the contract between Church and State. Endowment, as it became the foundation of patronage, became also the subject of an important and difficult section of Church-law ; but that reciprocity of concessions and intermixture of action, which lies at the root of the idea of contract, is hardly traceable in the history of endowments beyond the one very weighty question of the law of patronage : it is in the mechanism devised for Church legislation that the contract of the State with the Church is mainly to be read. The apology, therefore, or excuse of the English clergy when they made their celebrated submission to Henry VIII., and formally conceded to him both the initiative and the veto upon ecclesiastical canons, is surely to be found in this — that they may have looked back upon the incessant struggles of England with the Papacy during the centuries from the Conquest to their own for warning, and yet further back upon the great and cardinal periods of the history of the Church, under the three Emperors in particular who have been named, for inntation : and that in those periods they probably perceived how, where Church-law was run- ning under the authority of a State all whose members individually owned allegiance to the Church, the Catholic faith grew in honour and in extension, and the guarantees of social order were main- tained. They had also another precedent, less commanding in dignity, but nearer to them, and yet closer to the subject, in the promulgation of the ecclesiastical laws of Anglo-Saxon times under the ostensible authority, not so much joined as mixed, of all REMARKS ON THE ROYAL SUPREMACY. 27 those who met in the councils of the nation, whether spiritual or lay persons : a precedent to which they might reasonably give much weight. Nay more : this is, surely, an explanation of their conduct much more according to charity than the supposition that the bishops and clergy of a great Christian kingdom, and that king- dom our own noble and true-hearted England, were so drowned in corruption and so lost to every consideration of decency and honour, that with their eyes open they surrendered to the secular authority the sacred charge of the Church in the custody of the Christian faith and discipline ; but it is also fkir more rational as well as more charitable, first because these extravagant imputa- tions of universal degradation to such bodies of men are in reality, as a general rule, fanatical and irrational to the highest degree : secondly, because the basis upon which they placed themselves was not in the main a novel invention, but one known to history, and recommended by the actual working of the relations of the Church and the State when they had been founded upon it. Cf course it is not intended to question that secondary motives may have had a very large share in producing the de- cision at which the English Convocation then finally arrived. Probably, without the fear of the premunire and of the violent character of the king, that decision might not have been attained. But those who would on this account shut out the possible con- currence of better motives, should recollect that all the impure considerations were not on one side. Ambition and cupidity would incline the clergy to retain their powers with the same kind offeree, and perhaps with as much force, as the fear oi premunire would prompt their relinquishment. The question is, did they deliberately sacrifice on the altar of Mammon the sacred deposit of Church authority? I say no: they gave to the Crown an absolute control over ecclesiastical legislation, in conformity with the tendencies which the works of some unreforming bishops had evinced, even before Henry's quarrel with the Pope ; in con- formity with the known practice, if not with any abstract declara- tion of the ages best to follow, and probably in a trust not un- reasonable that the more frank and formal adoption of the same principles would be attended with the same happy results. 28 REMARKS ON THE ROYAL SUPREMACY. It does not, indeed, seem too much to express a doubt, whether there was any other way than the concession of this control over ecclesiastical legislation to the Crown, by which the order of civil society could, in those times of profound movement and imperfect social organisation, be maintained. Let us not judge the deeds of that generation by standards transferred to them from our own time and experience. We see countries in which religious communities make regulations for themselves, apart from any sanction of the state, other than the protection which it affords to all agreements not contrary to the public law. But how great are the changes by which separate action of this kind has been rendered practicable and safe to society! How has the domain of ecclesiastical legislation been narrowed ; the possessions of the Church reduced from a third in some countries, and in others even a half, to a fiftieth or a hundredth part of the aggregate property of the country : above all, the religious disintegration of the body, the sway of private opinion, the diversity of sects and schemes of religion that now pre- vail, have so neutralised and wasted the political forces (so to speak) of religion, that freedom, as we have recently seen in Scotland, is the utmost to which she aspires, and that of encroachment on civil right, when free, she does not dream. Yet even now there is no European country in which ecclesi- astical societies are exempt from civil control : if we except the melancholy instance in which Religion still with her own hands administers a kingdom of this world, and withholds from the people rights analogous to those of other nations not more worthy, upon the miserable and most destructive plea, that their political servitude is necessary to the ecclesiastical order of the rest of the Roman communion. An instance most melancholy, because the interests of religion are thus represented as requiring, in a form the most unequal, civil degradation for their support ; and because, alone among Christian states, the throne of the greatest bishop of Christendom depends not on the will, the wisdom, the affections, or even the indifference, of the people, but is wholly and undis- guisedly sustained, in despite of their aversion, and in constant fear of their resistance, by foreign arms. But to pass to the rule from the exception, or rather the in- REMARKS ON THE ROYAL SUPREMACY. 29 version, which perhaps confirms it: in every other country of Europe the Church is still, even for spiritual purposes, in more or less of subordination to the State. I do not speak of the yet un- tested, and among us but imperfectly detailed, concessions to the Church in Austria, of which we have but just heard. The known law of Austria was one of stringent controul. Even in France and in Belgium, where she has gained so greatly by revolutions, she is still under such controul, in respect to that large portion of her work which is connected with the education of the young. It may, indeed, be said, and with truth, that the principle of this controul is admitted very generally by the Protestants of the Continent, while in the case of the Roman Catholics it is rendered necessary by their connection with a foreign see ; but that as all such con- nection was cut off by the acts of the reign of Henry VIIL, the Church, deprived of her alliances abroad, might have been left more free. I waive the question, on which much might be said, whether, as matters then stood, the abolition of the Papal jurisdic- tion was to the Church of England more per se a privation or a relief. But those who assume without question that her freedom need have caused to the civil power no just alarms, should re- member what a powerful incorporation she was at the time. As to property, she was possessed of a third part of the land of the kingdom. As to learning, she alone directed the whole machinery of education. As to law, her ministers were an isolated, and for all the most important purposes, including that of taxation, a self- governing community. As to direct political power, her Bishops and Abbots were a numerical majority of the most important of the two Houses of Parliament. As to influence, her command over pei'sonal action by sacramental confession was such, as would alone have sufficed for her security. Looking back to these and other facts, I for one cannot censure either those who asked, or those who agreed, that all the legislative proceedings of the Church should thenceforward be subject to the permission and sanction of the Oown ; provided only they had reason to suppose that the powers which they then consented to recognise were to be used towards the clergy and the Church, as it was the duty of the Crown to employ all other powers owned by the constitution ; that is to say, in the spirit of general equity and justice, accord- 30 REMARKS ON THE ROYAL SUPREMACY. ing to the paths of law and usage, and for the advantage of tlie subject. Before leaving the question as to legislation for the Church, I would observe, that those who are arguing that the Church of England abandoned her office at the Reformation, and therefore has lost its authority, must, on every ground of right and reason, proceed strictly. It will not do to convict her of constructive treason, a doctrine leaving no defence to innocence against the bias of the judge. In her, as in every other body, the legislative was the highest power. Did she, or did she not, ever make a semblance of surrendering it? Only we must not answer this question by mixing up together all that belonged to the arbitrary character of the King, the confusion of the times, the real neces- sities of such times, the general tendency to heighten prerogative and restrain liberty, the claims of rival power, the high-flown ideas of prerogative lawyers ; and then, out of all these jointly, filling up every gap with hostile inferences, piece together the members of a charge, not against the men, but against the insti- tution of whicli they were the trustees. Regarding, then, the case as it stands in evidence, I cannot find the slightest trace of anything beyond controul given to the Crown, with respect to the enactment of Church canons. The Reforma- tion statutes did not leave the Convocation in the same position, relatively to the Crown, as the Parliament. It was under more controul ; but its inherent and independent power was even thereby more directly recognised. The King was not the head of Convo- cation ; it was not merely his council. The Archbishop was its head, and summoned and prorogued it. It was .not power, but leave, that this body had to seek from the Crown, in order to make canons. A canon without the royal assent was already a canon, though without the force of law ; but a bill which has passed the two Houses is without force of any kind, until that assent is given. Again, the royal assent is given to canons in the gross, to bills one by one ; which well illustrates the difference between the controul in the one case, and the actuating and moving power in the other. But the language of those instruments respectively aftbrds the clearest and the highest proof. In the canons (Canon I.) we find the words, " We decree and ordain ;" that is, we the mem- REMARKS ON THE ROYAL SUPREMACY. 31 bers of the two Houses of Convocation. But in our laws, " Be it enacted, by the King's most excellent Majesty, with the advice and consent of the Lords spiritual and temporal, and Commons." Whereas in the canons the King does everything except enacting ; with a remarkable accumulation of operative words he assents, ratifies, confirms, and establishes ; propounds, publishes ; and en- joins and commands to be kept.* Every one of these words recognises that the canon has a certain force of its own, while it purports to convey, and does convey, another force. In the one case the Crown is the fountain of the whole authority of the law ; the Lords and Commons are its advisers. In the other, the Con- vocation decrees and ordains ; the King gives legal sanction and currency to that which, without such sanction, would have remained a simple appeal to conscience. In statutes, the King enacts with the advice and assent of Parliament ; in canons, the Convocation enacts, with the licence and assent of the Crown. I now speak not of what is desirable or otherwise, but simply of the matter of fact : from which it appears that the idea of a separate spiritual power for legislative purposes was much more carefully pre- served (and with good reason) by the statutes of Henry VIIL, than it had been when Church-law went forth in the Capitularies of Charlemagne, or the code and Novels of Justinian, imdistin- guished as to the form of its authority from laws purely civil. Let it be seriously considered whether, so far as the essence of the principles of the Church is concerned, there was any violation of them in this submission and promise of the clergy, more than in the Placitum regiurn which the See of Rome itself, with how- ever bad a grace, has been obliged to endure, and which the whole Gallican Church, the most learned and illustrious of all the daugh- ters of the Roman See, and with it the entire Cisalpine school, cor- dially received. This Placitum, says Van Espen, comes to exist in consideration of the necessary impact of ecclesiastical laws upon the civil rights and secular interests of men. It cannot be re- stricted to any particular class of subjects. It reaches even to those bulls of the Pope which are dogmatical. Ex hactenus dictis concluditur, placitum regiurn ceque requiri ante publicationem bul- * Letters Patent, npjjended to the Canons of 1604. 32 REMARKS ON THE ROYAL SUPREMACY. larum dogmaticarum, quam caterorum rescriptorum. And he quotes an author mucli more favourable than himself to the Papal power, who nevertheless holds it allowable — " Potestatem scecularem mandare aut constituere, tit sine suo he- vcplacito et examine nemo pai'eat hujusmodi Litteins, vel executioni mandet easdem^* It seems to be becoming a fashion in France, not merely to dis- own Gallicanism, but to denounce it as a schism, and even as a heresy. But the growth of that fashion, however it may tend to simplify the plea for the Roman Church, does so at the expense of history, and of the ultimate interests of all Christian belief ; and in no way derogates from the real force of the precedents which the case of France affords, as they are applicable to the times of which we now treat. But while, according to the letter and spirit of the law, such appear to be the limits of the royal supremacy in regard to the legislative, which is the highest, action of the Church, I do not deny that in other branches it goes farther, and will now assume that the supremacy in all causes, which is at least a claim to controul at every point the jurisdiction of the Church, may also be construed to mean as much as that the Crown is the ultimate source of jurisdiction of whatever kind. Here, however, I must commence by stating, that, as it appears to me, Lord Coke and others attach to the very word jurisdiction a narrower sense than it bears in popular acceptation, or in the works of canonists ; a sense which excludes altogether that of the canonists ; and also a sense which appears to be the genuine and legitimate sense of the word in its first intention. Now, when we are endeavouring to appreciate the force and scope of the legal doctrine concerning ecclesiastical and spiritual jurisdiction, it is plain that we must take the term employed in the sense of our own law, and not in the different and derivative sense in which it has been used by canonists and theologians. But canonists themselves bear witness to the distinction which I have now pointed out. The one kind is Jurisdictio coactiva, proprie dicta, principibus data ; the * Van Esj;en de Pronuilgr. Leg. Ecclcs., Part V., caj). 2, sec. iv. REMARKS ON THE ROYAL SUPREMACY. 33 other is Jurisdictio improprie dicta ac mere spiritualis, Ecclesi(B ej usque Episcopis a Christo data* Noi' was it wholly lost sight of even in the reign of Henry VIII., as is evident from the Episcopal Commission, and from a remark- able paper in Collier's Appendix, where we are told that the clergy of England have of the king " all manner of jurisdiction and goods ; save only such mere spiritualties as were granted unto them by the Gospels and Holy Scriptures. "f Properly speaking, I submit that there is no such thing as juris- diction in any private association of men, or anywhere else than under the authority of the State. Jus is the scheme of rights subsisting between men in the relations, not of all, but of civil society ;!{; and jurisdictio is the authority to determine and enun- ciate those rights from time to time. Church authority, therefore, so long as it stands alone, is not in strictness of speech, or accord- ing to history, jurisdiction, because it is not essentially bound up with civil law. But when the State and the Church came to be united, by the conversion of nations, and the submission of the private conscience to Christianity, when the Church placed her power of self-regula- tion under the guardianship of the State, and the State annexed its own potent sanctions to rules, which without it would have been matter of mere private contract, then jus or civil right soon found its way into the Church, and the respective interests and obligations of its various orders, and of the individuals composing them, were regulated by provisions forming part of the law of the land. Matter ecclesiastical or spiritual, moulded in the forms of civil law, became the proper subject of ecclesiastical or spiritual jurisdiction, properly so called. Now inasmuch as laws are abstractions until they are put into execution, through the medium of executive and judicial autho- rity, it is evident that the cogency of the i-easons for welding together, so to speak, civil and ecclesiastical authority, is much * Van Espen, Doductio Juris ct Facti, cap. iii. vol. iv. p. 273, ed. 1753, t Collier, ix. 165. J Jits hominnm sitiini est in generis humani societate. -Q\c. Tusc. i. c. 26. D 34 REMARKS ON THE ROYAL SUPREMACY. more full with regard to these latter branches of power than with regard to legislation. There had been in the Church, from its first existence as a spi- ritual society, a right to govern, to decide, to adjudge for spiritual purposes ; that was a true self-governing authority ; but it was not properly jurisdiction. It naturally came to be included, or rather enfolded, in the term, when for many centuries the secular arm had been in habitual co-operation with the tribunals of the Church. The thing to be done, and the means by which it was done, were bound together ; the authority, and the power, being always united in fact, were treated as an unity for the purposes of law. As the potentate possessing not the head but the mouth or issue of a river, has the right to determine what shall pass to or from the sea, so the State, standing between an injunction of the Church and its execution, had a right to refer that execution wholly to its own authority. There was not contained or implied in such a doctrine any denial of the original and proper authority of the Church for its own self-government ; or any assertion that it had passed to and become the property of the Crown. But that authority, though not in its source, yet in its exercise, had immersed itself in the forms of law ; had invoked and obtained the aid of certain elements of external power, which belonged exclusively to the State, and for the right and just use of which the State had a separate and inde- pendent responsibility, so that it could not without breach of duty allow them to be parted from itself. It was therefore, I submit, an intelligible, and under given circumstances, a warrantable scheme of action, under which the State virtually said : Church decrees, taking the form of law, and obtaining their full and certain effect only in that form, can be executed only as law, and while they are in process of being put into practice can only be regarded as law, and therefore the whole power of their execu- tion, that is to say all jurisdiction in matter ecclesiastical and spiritual, must, according to the doctrine of law, proceed from the fountain-head of law, namely, from the Crown. In the last legal resort there can be but one origin for all which is to be done in societies of men by force of legal power ; nor, if so, can doubt arise what that origin must be. REMARKS ON THE ROYAL SUPREMACY. 2(5 If you allege that the Church has a spiritual authority to regu- late doctrine and discipline, still, as you choose to back that autho- rity with the force of temporal law, and as the State is exclusively responsible for the use of that force, you must be content to fold up the authority of the Church in that exterior form through wliich you desire it to take effect. From whatsoever source it may come originally, it comes to the subject as law, it therefore comes to him from the fountain of law. He is not to ask, from whence it came to that fountain : whether, like the temporal power, from God directly but indeterminately ; or whether it came from Him indirectly but determinately, indirectly as through the medium of the Church, but determinately as cast in the mould of her Faith. The faith of Christendom has been received in England : the dis- cipline of the Christian Church, cast into its local form, modified by statutes of the realm, and by the common law and prerogative, has from time immemorial been received in England ; but we can view them only as law, although you may look further back to the divine and spiritual sanction, in virtue of which they acquired that social position, which made it expedient that they should associate with law, and should therefore become law. This distinction is well expressed in one of the statutes of Henry VHI. with respect to the Papal privileges: — " This your Grace's realm, recognising no superiority under God but only your Grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and obtained within this realm, for the wealth of the same, or to such other as, by sufferance of your Grace and your progenitors, the people of this your realm have taken at their free liberty by their own consent to be used among them, and have bound them- selves by long use and custom to the observance of the same, not as to the observance of laws of any foreign prince, potentate, or prelate, but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and customs, and none otherwise."* That is to say, the origin of the matter of the law might be one thing, and the aspect under which it was to be regarded as law was another. * 25 Hen. VIII. o. 21.— Preamble. D 2 36 REMARKS ON THE ROYAL SUPREMACY, Nor was this principle, thus broadly laid down, without its pro- per safeguards ; for it was in this very Act of Parliament that, while claiming for England an absolute controul over the whole body of law, current or to be current in England, apart from any standing foreign authority, the Parliament inserted the very remark- able section, which imposes a certain limit on the intei-pretation of the Act, apparently for the purpose of introducing a solemn decla- ration of principle. It commences thus : — " Provided always, that this Act, nor any thing or things therein contained, shall be hereafter interpreted or expounded that your Grace, your nobles and subjects, intend by the same to decline or vary from the congregation of Christ's Church in any things con- cerning the very articles of the Catholic faith of Christendom, or in any other things declared by Holy Scripture and the word of God, necessary for your and their salvations, but only to make an ordinance by policies necessary and convenient to repress vice, and for good conservation of this realm in peace, unity, and tran- quillity, from ravin and spoil, insuing much the old ancient cus- toms of this realm in that behalf."* In this Act, and in the whole legislation of the time, the divine law seems to be taken for granted as something known to all, and never to be the subject of doubt or change. They no more thought of alteration in that respect, or of vindicating a jurisdiction over it, than we should with respect to the laws of arithmetic. In com- paring that period with this, and in construing those laws, we should take into account the declining force and clearness of faith in objective, that is, in substantive, fixed, and independent truth. Now in these observations concerning the common legal doctrine about ecclesiastical jurisdiction, I have not strained, as I believe, the constitution of the country to suit a favoured purpose ; nor, on the other hand, in admissions gone beyond the range of principles that have been held by high and established authorities, even with- in the Church of Rome. I have suggested, that in asserting the Crown to be the source of ecclesiastical jurisdiction, we should not necessarily deny that original self-governing authority in the Church, which is so noto- * 25 Ucn. VIII. c. 21, s. 19. REMARKS ON THE ROYAL SUPREMACY. 37. lious in history that it the less requires to be guarded by verbal recognitions ; but leave the question entirely open, how and fi'oni what source that authority, or any part of it, came to the Crown. And this assertion I will support, by pointing out the existence of an exact parallel as regards secular jurisdiction. It is the une- quivocal doctrine of the constitution, that the sovereign is the foun- tain-head, in relation to the subject, not only of all executive and judicial power in civil matters, but of the power of legislation. But yet I apprehend it is open to any man to question, without offence, whether that power is derived to the Crown from the ordi- nance of God, or whether through the popular consent or delega- tion. In the one case there is nothing between the Crown and the Divine ordinance ; which is the Erastian theory when applied to the Church, and, if taken in its native rigour, the theory of the non-jurors as it affects the State. In the other case we may, as political speculatists, either rank with those who nakedly hold the popular sovereignty, or with those who choose a firmer and safer ground in the traditions of English history, and show fi'om them, that according to the actual development of our constitution, the Crown had not only duties towards the nation, but duties founded on compact. And in like manner, we may acknowledge the eccle- siastical jurisdiction of the Crown without in any degree dispa- raging the inherent self-governing capacities of the Church. We may give reasonable effect to the facts of Christian history, re- cording the foundation by our Lord himself of a spiritual society — its endowment with the powers of teaching and self-government — its propagation through the countries of the earth — its succession through the centuries of history — and regard the annexation of its spiritual authority, in any of its branches, to the civil power, as one of the many incidents of its varied but never failing fortunes, an incident becoming, under a course of favourable circumstances, possible, useful, necessary ; and then again, when the tide has turned, capable of a tendency to become inconvenient, or useless^ or even immoral and destructive. The other assertion, that this doctrine is one which has had high countenance among the most reasonable theologians of the Roman Church, I shall simply support by a quotation from Van Espen, which, when it was called in question, he explained by 38 REMARKS ON THE ROYAL SUPREMACY. stating, agreeably to what I have ah-eady cited, that it referred to all junsdiction properly so called. Ve?'um sicidi Ecclesice atque relifjionis curam crediderunt Prin- cipes Christiani ipsis Episcopis tanqnam prcpcipm's ejus ministris, et Apostolorum successoribus, ita quoque ipsis correctionem eortim, qua Ecclesiam et relicfionem, ejusqrie disciplinam spectant, de- tulerunt ; prcBsertim iamen si quid, quod hanc turharet, a cUricisj sen inferioribus Ecclesiai ministris, fieri contingeret* Tlie real question, I apprehend, is this : when the Church as- sented to those great concessions which were embodied in our per- manent law at the Reformation, had she adequate securities that the powers so conveyed would be exercised, upon the whole, with a due regard to the integrity of her faith, and of her office, which was and has ever been a part of that faith ? I do not ask whether these securities were all on parchment or not — whetlier they were written or unwritten — whether they were in statute or in common law, or in fixed usage, or in the spirit of the constitution and in the habits of the people — I ask the one vital question, whether, whatever they were in form, they were in substance sufficient ? The securities which the Church had were these : first, that the assembling of the Convocation was obviously necessary for the purposes of taxation ; secondly, and mainly, that the very solemn and fundamental laws by which the jurisdiction of the see of Rome was cut off, assigned to the spiritualty of the realm the care of matters spiritual, as distinctly and formally as to the temporalty the care of matters temporal : and that it was an understood prin- ciple, and (as it long continued) a regular usage of the constitu- tion, that ecclesiastical laws should be administered by ecclesias- tical judges. These were the securities on which the Church relied ; on which she had a right to rely ; and on which, for a long series of years, her reliance was justified by the results. I shall now endeavour to support the representation which I have given of the legal doctrine concerning ecclesiastical jurisdic- tion by citations ; and I shall refer chiefly to Lord Coke, because, as he was both a high prerogative lawyer, and of Erastian tenden- cies in regard to the Church, whatever can be proved from his mouth in her favour may be regarded as proven afortiuri ; sup- * Van Espen, Jus Ecol. Univ., part iii. Ht. iii. rap. 1. REMARKS ON THE ROYAL SUPREMACY, 39 porting, at the same time, my allegations as to the securities on which the Cliurch warrantably relied, by reference to the statutes of the period. Lord Coke, then, appears to proceed most unequivocally upon these principles — and to proceed upon them," not as debateablo matter, but as maxims placed beyond all doubt by the theory and practice of the constitution : — That all jurisdiction, as well ecclesiastical as temporal, proceeds from the Crown.* That all the laws of the realm are the King's laws. And all the courts of the kingdom the King's courts : and this whether their acts run in the King's name, or in the names of bishops, lords of manor, or other subjects. That the Church of England has no laws except such as are laws of the realm. That all the laws of the realm affecting the Church are likewise laws of the Church. That the 24 Hen. VIII. c. 12, is a great constitutional statute, distinctly marking out a province of ecclesiastical, and another pro- vince of civil, causes. That the laws ecclesiastical are for the settlement of " causes of the law divine, or of spiritual learning."! That the laws temporal are " for trial of property of lands and goods, and for the conservation of the people of this realm in unity and peace, without rapine or spoil. "^ That the laws ecclesiastical are necessarily to be administered in ecclesiastical courts and by ecclesiastical judges :§ as the laws temporal are " administered, adjudged, and executed by sundry judges and ministers of the other part of the said body politic, called the temporalty : and both these authorities and jurisdic- tions do conjoin together in the due administration of justice, tlie one to help the other." || That " the archbishops, bishttps, and their officers, deans, and other ministers which have spiritual jurisdiction," are "the King's judges " for ecclesiastical parposes.1[ * See also Phillimore's Burn, vol. ii. p. 51. t 24 Hen. VIII. c. 12. p Ibid. § Cawdrey's Case, p. Ixxvii. 11 Quoted in the Institutes, vol. vi. part iv. ch. 74. IT Ibid. 40 REMARKS ON THE ROYAL SUPREMACY. That the Convocation of the Clergy is a court of which " the jurisdiction is to deal with heresies and schisms, and other mere spiritual and ecclesiastical causes ;" and " therein they did proceed jMxte legem divinam et canones sanctce ecclesice" That they did so before the Reformation, under the King's writ, often under his prohibition to meddle with civil matters ; often, likewise, with his Commissioners present to take cognizance of all they might do; so that the statute 25 Hen. VIII. cap. 19, requiring the royal assent to canons, " is but declaratory of the old common law."* That the purpose of the Reformation statutes, as understood and solemnly expressed by their framers, was to vindicate and restore to the Crown the ancient jurisdiction which it had enjoyed in previous times ; and which ancient jurisdiction extended over all ecclesiastical and spiritual causes. f With these principles Blackstone is in accordance ; and in regard to heresy in particular, while he states that the crime might be more strictly defined, that nothing should be prose- cuted as heretical imtil it has been so declared by proper authority, he also avows that, " under these restrictions, it seems necessary for the support of the national religion that the officers of the Church should have power to censure heretics.'"! The jurisdiction of Convocation as a court for the trial of heresy was asserted in 1711 by the twelve judges and the law- officers of the Crown ; and all of these, except four judges, con- sidered this to be a jurisdiction over the persons as well as over the tenets of the offenders. § If such be the view of the expositors of the law, let us turn now to the law itself. The citations I shall make will be for the establishment mainly of these two positions : — First, that all which the civil power claimed, and conse(iuently * Quoted in the Institutes, vol. vi. part iv. ch. 74. t These propositions are chiefly taken from the Institutes. Matter of the same nature will be found in the Report of Cawdrey's Case, particularly at pages xxvi., xxviii., xxxvi.-ix., xlvii., 1., Iv.-viii., Ixii., Ixxvi., Ixxvii. t Vol. iii. p. 49. % Opinion of the Judges, reprinted from Whiston. Parker, 1860. KEMARKS ON THE ROYAL SUPREMACY. 41 is entitled to claim, under the Reformation statutes, was the restoration of the ancient rights of the Crown. Secondly, that the administration of the ecclesiastical laws would, according to the terras, as well as the spirit, of those statutes, be placed in the hands of ecclesiastical judges. I. It is well to commence with the Act of the First of Elizabeth, c. 1, because it is even to this day the charter of the Constitution in reference to the subject-matter. Title. — "An Act to restore to the Crown the ancient juris- diction over the Estate ecclesiastical and spiritual, and abolishing all foreign powers repugnant to the same." Preamble. — " In time of the reign of your most dear father, of worthy memory, King Henry the Eighth, divers good laws and statutes were made and established, as well for the utter extin- guishment and putting away of all usurped and foreign powers and authorities out of this your realm, and other your Highness's dominions and countries, as also for the restoring and uniting to the imperial Crown of this realm the ancient jurisdictions, au- thorities, superiorities, and pre-eminences to the same of right belonging or appertaining." Sect. 2 repeals 1 & 2 Ph. & M. c. 8, " for the repressing of the said usurped foreign power, and the restoring of the rights, jurisdictions, and pre-eminences appertaining to the imperial Crown of this your realm." And sect. 17 provides that " such jurisdictions, privileges, superiorities, and pre-eminences, spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath hereto- fore been or may lawfully be exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order, and correction of the same> and of all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities, shall for ever, by authority of this present Parliament, be united and annexed to the imperial Crown of this realm." The language of this Act was in entire conformity with that of the Acts of Henry tin; Eighth — With the preamble of the great statute for the restraint of appeals, which is set out lower down — So far as it goes, with the 37 Hen. VIII. cap. 17, now re- 42 EEMARKS ON THE ROYAL SUPREMACY. pealed, which declares that "your most royal Majesty is and hath always justly been, by the word of God, supreme head in earth of the Church of England." But the xA.ct of Elizabeth stops short of the enactments of Henry VIII., and, as we know, advisedly. Reference has already been made to the Oath contained in the Act, and to the legislative construction which has been put upon it. II. The preamble of the great Statute of 1532 is full and con- clusive on both points which are under our consideration, and, long as it is, it deserves the most careful perusal and consideration. It is as follows : — " Where by divers sundry old authorities, histories, and chronicles, it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and king, having the dignity and royal estate of the imperial crown of the same : " Unto whom a body politic, compact of all sorts and degrees of people, divided in terms and by names of spirituality and tem- porality, been bounden and owen to bear, next to God, a natural and humble obedience : " He being also institute and furnished by the goodness and sufferance of Almighty God with plenary, whole, and entire power, pre-eminence, authority, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folk, resiants, or subjects within this his realm, in all causes, matters, debates, and contentions happening to occur, insurge, or begin within the limits thereof, without restraint or provocation to any foreign princes or potentates of the world : " The body spiritual whereof having power, when any cause of the law divine happened to come in question, or of spiritual learn- ing, then it was declared, interpreted, and showed, by that part of the said body politic called the spirituality, now being usually called the English Church, which always hath been reputed, and also found of that sort, that both for knowledge, integrity, and suflBciency of number, it hath been always thought, and is also at this hour, sufficient and meet of itself, without the intermeddling of any exterior person or persons, to declare and determine all EEMARKS ON THE ROYAL SUPREMACY. 43 such doubts, and to administer all such offices and duties, as to their rooms spiritual doth appertain : " For the due administration whereof, and to keep them from corruption and sinister affection, the king's most noble progenitors, and the antecessors of the nobles of this realm, have sufficiently endowed the said Church both with honour and possessions : " And the law temporal, for trial of property of lands and goods, and for the conservation of the people of this realm in unity and peace, w-ithout rapine or spoil, was and yet is administered, adjudged, and executed, by sundry judges and ministers of the other part of the said body politic, called the temporalty : " And both their authorities and jurisdictions do conjoin together in the due administration of justice, the one to help the other." The second section proceeds to recite that laws had been made at divers times to preserve the independence of the crown and its "jurisdiction spiritual and temporal," but that more w^ere re- quired. In this most remarkable and perhaps unparalleled preamble we are to observe set forth in the most formal manner : — 1. The assertion of the ancient independence of the realm of England. 2. Of the division of the nation into clergy or the spiritualty, and laity or the temporalty. 3. Of the supremacy of the crown, in all causes w^liatsoever, over both. 4. Of the authority, fitness, and usage of the spirituality to administer the laws spiritual. 5. Of its endowment for that very end. 6. Of the parallel authority, fitness, and usage of the tem- poralty to administer the laws temporal, which are defined to be for temporal ends. 7. Of the alliance between these two jurisdictions. But will it be said that, though the language of this important statute asserted the principle that Church laws should be admi- nistered by Church officers, yet subsequent laws completely altered the case ; and while, according to the first, appeals ter- minated with the archbishop, according to the latter they went on to the king, and power was also given to the crown, in the 1st of 44 REMARKS ON THE ROYAL SUPREMACY. Elizabeth, to redress abuses by the mstrumentality of any persons being natural born subjects ? The answer surely is that the construction of those enactments was fixed by known usage in a manner perfectly accordant to the preamble of the 24 Henry VIII. c. 12 : that such usage was as imperatively required by the spirit of the constitution, as that the crown should appoint for its judges in the temporal courts, men learned in the law ; and that the ground of this usage is fully and constantly recognised by the principle of the lawyers that there must be Ecclesiastical Courts to administer the laws of the Church, and by the practice which prevailed for many generations after the passing of these statutes. I shall produce two more testimonies from the reign of Henry VIII. The first is the title of an Act of Parliament since repealed, and therefore only of use to show the intention of the time. It is the 32 Henry VIII. c. 26, and runs thus :— * ' ' All decrees and ordinances which, according to God's word and Christ's Gospel, by the king's advice and confirmation by his Letters Patents, shall be made and ordained by the archbishops, bishops, and doctors appointed, or to be appointed, in and upon the matter of Christian religion and Christian faith, and the lawful rights,t ceremonies, and observations of the same, shall be in every point thereof believed, obeyed, and performed, to all intents and purposes, upon the pains therein comprised. Provided that nothing shall be ordained or devised which shall be repugnant to the laws and statutes of this realm." The object is to give the force of law to canons of the Church not contrary to the law of the land ; but the Act clearly shows that it was presumed that such laws would be made only by the bishops and learned clergy. We have another remarkable attestation of the intention and engagement of the State, that the laws of the Church should be administered by ecclesiastical judges, affbrded by the Act 37 Henry VIII. c. 17. Its object is to render lawful the exercise of ecclesiastical * The title of 32 lien. VIII. c. 15, has a similar oficct. \ Rites ? REMARKS ON THE ROYAL SUPREMACY. 45 jurisdiction by doctors in civil law, if appointed to the office of chancellor, vicar-general, commissary, official, scribe, or registrar, being either lay or married persons ; and its terms are strictly confined to such doctors, who were by their profession members of the Church and students and teachers of her jurisprudence. It recites that, though any canons forbidding such persons to exercise ecclesiastical jurisdiction had been abolished, yet the bishops and other spiritual persons acted at that date (1545) as if the disqualification had been still in force. And it proceeds to enact — " That all and singular persons, as well lay as those that be now married or hereafter shall be married, being doctors of the civil law .... which shall be made .... to be any chancellor, vicar-general, commissary, official, scribe, or register .... may lawfully execute and exercise all manner of jurisdiction commonly called ecclesiastical jurisdiction, and all censures and coercions appertaining or in anywise belonging unto the same, albeit such person or persons be lay, married or unmarried, so that they be doctors of the civil law, as is aforesaid." Thus it appears (1), that up to the year 1545, all ecclesiastical jurisdiction —notwithstanding the appointment of Cromwell — was commonly exercised by the clergy alone : (2), that an Act was thought necessary to legalise the exercise of it in any form by lay- men: (3), that those laymen were to be none other than doctors of civil law. It appears indeed that the statute has been construed, notwith- standing the repeated words of limitation, as enabling all persons to hold the recited offices ; and that such a construction is regarded with some wonder, as surely it well may be.* To show the intention of the ruling powers during the subse- quent reign, as to the final disposal of ecclesiastical causes — ■ apparently of all causes so called, whether purely spiritual or not — ■ we may well refer to the Reformatio Leyum, which says, speaking of appealed causes brought into Chancery, " Quo cum fuerit causa devoluta, earn vel eoacilio ]J7-ovinciaH dejiniri volumus, si gravis sit causa, vel a tribus quatuorve episcopis, a nobis ad id constituendis."] Thus the very same document, which qarries ♦ Stephens's Ercl. Stat., i. p. 289 n. t Ibid., i. 152 n. 46 REMARKS ON THK ROYAL SUPREMACY, to the highest point the assertion of the royal supremacy,* distinctly assigns to the Bishops the exercise, in the king's name, of the appellate jurisdiction. These citaitions from the most conclusive sources, during the reigns of Henry VIII. and Edward VI., may probably suffice, because it will generally be admitted that what is true of those reigns in favour of the spiritualty, is true a fortiori respecting the times of the sovereigns who succeeded. In the first high commission of Queen Elizabeth, of which the exact composition, I understand, is not on record, there must per- force have been a deviation from the principle, because, as Lord Coke observes, it was appointed for a special purpose, and by way of exception, namely, to rid the Church of those bishops who would not take the oath of supremacy in conformity with the proceedings founded on the Acts of Convocation under Henry VIII. ; acts which had never been canonically reversed. It would be easy, I apprehend, to show that until about the accession of the House of Hanover, that is to say for nearly two centuries, these two great rules of the policy of the English Reformation were observed with substantial fidelity : — 1. That the Convocation should be the instrument of legis- lation for the doctrine of the Church. 2. That the ecclesiastical law should be administered by ecclesiastical judges. In truth it is not enough to call these rules of policy ; for as, to the State, they were constitutional principles, so to the Church they were solemn engagements. Both of them are covered by the preamble of the groat Statute of Appeals, and the words of that preamble amount to a solemn engagement. Although in form there can be no contract between the legislative power and any person or body in the State, yet no words of promise could bind an individual more sacredly than the words of that preamble, declaring the spiritualty to be the fit and established instrument for administering Church law, should have bound the State : and when the State makes laws deeply affecting any subject body, and sets forth as the conditions and grounds of them matter in which that subject body has an interest, such body has a moral claim to * See p. 16. REMARKS ON THE ROYAL SUPREMACY. 47 hold the State to its own spontaneous and, in this case, very formal and deliberate declaration. That the concessions which have been described as made by the Church in the sixteenth century were large is unquestionable. That they had their dangers is a proposition which only places them in the same category with all former and all subsequent adjustments of the same gi-eat and most difficult problem. That they were unwarrantable may be the case, but our history until now has not placed it beyond doubt. That they deserved the severe and unmeasured condemnation which some have pronounced upon them, is, in my view, very far indeed from being the case. It is an utter mistake to suppose that the recognition of the royal supremacy in matters ecclesiastical, established in the Church a despotic power. The monarchy of England had been from early times a free monarchy. The idea of law was altogether paramount in this happy constitution to that of any personal will. Nothing could be more complete than the recognition of the Sove- reign as the source both of legislative and of judicial authority for the exigencies of the passing day ; but it was the felicity of this country that its people did not regard the labours of their fore- fathers as nought, and so realised the inheritance they had received from them, that at all times what was to be done was with them secondary, and what had been done primary ; and the highest works of the actual legislator always aimed at the vindication and re-establishment of the labours and acquisitions of those who had preceded him. Here lay the grand cause of the success of our English revolutions, that the people never rent the web of history, but repaired its rents ; never interposed a ch sm between, never separated, the national life of the present and that of the past, but even when they seemed most violently to alter the momentary, always aimed at recovering the general direction of their career. Thus everybody knew that there were laws superior to the Sove- reign, and liberties which he could not infringe ; that he was king in order to be the guardian of those laws and liberties, and to direct both the legislative and all other governing powers in the spirit which they breathed, and within the lines which they marked out for him. A spirit of trust and confidence almost unbounded then was. 48 REMARKS ON THE ROYAL SUPREMACY. and still is, the spirit of the British constitution. Even now, after three centuries of progress towards democratic sway, the Crown has prerogatives by acting upon which within their strict and unquestioned bounds it might at any time throw the country into confusion. And so has each house of parliament. Why is this the case ? Because it is impossible to tie down by literal enact- ments the sovereign power in a state, since by virtue of its sove- reignty it can get rid of the limitations imposed upon it, however strict may be their letter. Yet if that sovereign power be well advised, if the different elements of the social body be duly repre- sented and organised, there arises out of their wise adjustment a system of balance and limitation infinitely more effective than any mere statutory bonds. So it has been in the State of England ; BO, it might well be hoped, three hundred years ago, that it would be with the Church. At the same time we must discriminate and set aside that which belongs to the political character and bent of the particular period of the Tudor sovereigns, and especially to that of Henry VIII. It is not to be denied that all liberty was in danger then ; and church liberty among the rest. If we wonder at the clergy who promised to make no law but with the king's prior and pos- terior consent, what shall we say of the parliament which gave by statute the force of law to the king's proclamation ? The excess in the exercise of royal power over the Church during the six- teenth century is probably due to the absolutism of the period more than to its Erastian tendencies. The trust reposed by the constitution in the king with respect to civil purposes was this ; that he would commonly act in the spirit of the constitution, and would avail himself of the best assistance which the country might afford for ascertaining, fostering, and upholding that spirit, and for dealing according to its dictates with public exigencies as they should arise. And this trust was a trust not speculative only, but accompanied with practical safe- guards ; these in particular— that for making laws the sovereign must act with the advice and consent of the estates of the realm ; that for administering them he would act by and through those who had made the laws the study and business of their life, and who would be best able to interpret them according to their own REMARKS ON THE ROYAL SUPREMACY. 49 general spirit, and by the analogies wliich that spirit supplied, as well as the mere precedents which its history aftbrded. I speak of the constitutional system which was gradually elaborated and matured in England, the essential features of which had for many generations exercised a marked influence over the fortunes of the country, and which soon attained such a ripeness as to place both our legislative and judicial systems beyond the reach of the arbi- trary will or the personal caprice of sovereigns. Now, I say, that the intention of the Reformation, taken gene- rally, was to place our religious liberties on a footing analogous to that on which our civil liberties had long stood. A supremacy of power in making and in administering Church-law as well as State- law was to vest in the Sovereign : but in making Church-law he was to ratify the acts of the Church herself represented in Convo- cation, and if there were need of the highest civil sanctions then to have the aid of Parliament also : and in administering Church- law he was to discharge this function through the medium of Bishops and Divines, Canonists and Civilians, as her own most fully authorised, best-instructed sons, following in each case the analogy of his ordinary procedure as head of the State. The Church had this great and special security on which to rely, that the Sovereigns of the country were, for a century after the Reformation, among her best-instructed and even in some instances her most devoted children ; that all who made up the governing body (with an insignificant exception) owned personal allegiance to her, and that she might well rest on that personal allegiance as warranting beforehand the expectation, which after experience made good, that the office of the State towards her would be dis- charged in a friendly and kindly spirit, and that the principles of constitutional law and civil order would not be strained against her, but fairly and fully applied in her behalf. I do not mean that the Crown was legally compellable to con- voke Parliaments or to appoint persons of legal proficiency to be judges ; but without Parliaments it could not make law, and by fixed practice, as well as according to common reason, the laws were administered by those to whom they were a profession, and who were best versed in them. With the same theoretical laxity, and practical security, was provision made for the conduct of 50 REMARKS ON THE ROYAI- SUPREMACY. Church affairs. With regard to certain violent exertions of State power over the Church during the reigns of Henry VIII. and Ed- ward VI., during the reign, it must be added, of Mary, and during that of EHzabeth, it is not reasonable to take them as the measure of the intention of the State in the legal provisions it had made for settling its relations with the Church, any more than Magna Charta will bear to be construed by the administrations of the Sovereigns who bore sway shortly after its enactment. For as defective social order permitted constant infringements of the last, so the extreme of political necessity compelled the State to go beyond the spirit of the first. "When armed force was commonly employed to determine religious differences : when the ecclesi- astical afiairs of one country were liable to be taken in hand by the military power of another : when the Pope wielded the tem- poral as well as the spiritual sword, and claimed and exercised the anti-social, if not anti-christian, prerogative of deposing Sovereigns for renouncing his obedience — then England was really in the condition of a beleaguered city, and the Cro^vn was war- ranted and bound to settle many matters pertaining to the regimen of the Church by stretches of power that in regular times would have been intolerable, and that with regular times were disused. Yet after all, no one of them perhaps went so far as the Interim of Charles the Fifth. However unconstitutional may have been the Court of High Commission, however inadequate to such questions as the trial of doctrine the Court of Delegates, that which we are now ex- amining, namely, the essential freedom of the Church in her own most sacred functions, was on the one hand secured, while on the other hand harmony was maintained in her relations with the State. And the essence of the whole arrangement was this : that the power of the Church to make laws was retained, but subjected to the consent of the Crown ; the administration of Church-law was placed under the guardianship of the Crown, in a confidence, not disappointed through the succession of many generations, that her own Bishops, Divines, and Canonists would be the persons appointed to discharge her judicial functions. Although, upon comparing in the abstract the concessions of the Parliament and the Convocation respectively to Henry VHI., REMARKS ON THE ROYAL SUPREMACY. 51 we may find reason to think that while both were great, the former were the larger of the two, yet, practically, there was this great (liiFerence the other way : the concessions of the Church had been retained, and after a time she found that she had neither strength to recover them nor to retain her hold of the compen- sating conditions under which they were made ; whereas the Par- liament, gaining energy from generation to generation, has not only taken back wiiat it then unduly yielded, but has acquired exclusive possession oi" the supreme power in the State. Looking back upon those times in the light of the experience which three hundred years of eventful history have supplied, we are led to palliate the subserviency of the Parliaments of Henry VIII., and to form an exaggerated idea of that of his Clergy ; measuring their acts by remote and then unimagined results. But if we place ourselves in the position of the men of that day, we may arrive at a different view. For at that time there was no clear indication of the coming triumphs of popular freedom. Nor was it perhaps over sanguine, as matters then stood, to be- lieve that the Ecclesiastical Estate, if it could keep united, would be strong enough to secure the permanence of its liberties. And it was united, we must remember, at the time when these things were done. Obviously it is not by a mere comparison between Ecclesias- tical and Parliamentary subserviency that the question of right and wrong can be determined ; but it has become a fashion among us unhesitatingly to consign to infamy the Convocations of Henry VIII. without an examination of their case, and they are under sentence as it were of historical outlawry. It seems, therefore, well to throw those lights upon their conduct which a reference to particulars may supply : and there is no part of history of which it is more important to us that we should arrive at a just appre- ciation. But it is also important to observe that, as to the point which seems to be most pressed in controversy against the Church of England as fatal to her liberties, namely, the surrender of her own discretion in the exercise of legislative and judicial power, we are ecclesiastically in strict analogy with our political condi- tion. Now^ indeed, we are secured by the modern principle of E 2 52 REMARKS ON THE ROYAL SUPREMACY. . ministerial responsibility ; but before the date of this principle our forefathers held by the same tenure their condition as citizens and as churchmen respectively : and the same argument which Mouid prove the slavery of the Church, would also prove that they had no political liberties ; which is absurd. I am led to feel the importance of these remarks partly by the astounding view of the British Constitution Avhich I find in an article in the Dublin Review, ascribed to the ablest polemical writer of the Roman Catholic communion of this country : — " If the Queen is really the supreme head of the Church, or if she is a power in it with appellate jurisdiction, and as slie has spoken and pronounced sentence in the ' Gorham Case,' we do not see what right of interference there is in any one, in regard to the counsellors or judicial sifters of the cause whom she may select and appoint. She and she alone is responsible for this. " It may be objected that Her Majesty did not choose them, but that they were appointed by Act of Parliament. Be it so. But by whom is an Act of Parliament enacted but ' By the Queen's most excellent Majesty, by the advice and consent of the Lords Spiritual and Temporal, and Commons ?' The constitution, there- fore, of the council is the Queen's, or her predecessor's, for the sovereign has the means of resisting a Aaolence to his conscience."* AVhen a writer is possessed with such wild ideas as to the function of Her Majesty in the British Constitution as would make rather better sense if read backwards, we need neither be astonished nor grieved on our own account at any conclusions at which he may arrive respecting the Church in its relations to that Constitution. Nothing is more clearly essential to any just estimate of the position of the Church under the Royal Supremacy than a proper view of the essential conditions that fix the general position and oflSce of the Crown. We must recollect that the theory of monarchy in the law of England had its historical basis of fact in the free Anglo-Saxon constitution, running back even to the usages of the German tribes, such as Tacitus has described them. Upon this there supervened, with the Conquest and its results, that idea of Royal * Dublin Review, March, 1850, pp. 256, 257. REMARKS ON THE ROYAL SUPREMACY. 53 power which represented it as in itself absolute and perfect, ) et did not repel the notion that it came originally from popular delegation, and even referred this perfection, not to an ideal source or standard, but to the fact that all the powers of the Roman commonwealth — of senate, consul, praetor, tribune, gene- ral — had been conveyed to and concentrated in the person of the Emperor. To these again was added the doctrine of the Church, which asserts the Divine origin and sanction o the power of governing. This doctrine, which found governing power de facto in the hands of kings, naturally grew into the notion of what is called Divine hereditary right, especially when the abolition of the Roman jurisdiction had removed the influence of a Power whose interest it was to appear as standing between Heaven and the king, and therefore to keep the question open as to the precise nature and limits of the sanction that regal authority derived from Divine ordinance. From the joint result of these influences, ancient and recent, the idea of the king in the sixteenth and seventeenth centuries had mounted up, in the contemplation of law, even to ideal perfection. The very strongest proofs of it, not only that can be cited, but even, as it seems to me, that can be conceived, are to be found in our having inherited from those times (not from the period when monarchs were formally coerced like John, or solemnly deposed like Edward II. and Richard II.) the doctrine that the king can do no A\Tong ; and in the fact that the Parliament of Charles I. found itself obliged by duty or by policy, or both, to make war against the king, under the formal assumption of his own name and authority for its acts.* But this ascription of an ideal perfection to the sovereign did not imply that in practice he was free, or in law either, to lay his hands on whom or on what he pleased. The ancient idea of com- pact had never been extinguished ; and upon an adequate occasion, namely at the Revolution, it was reanimated, in terms indeed open to dispute, but in substance with a solemnity and weight of sanc- tion which it has never lost. But this great and fundamental idea of compact, if it applies to individual subjects, applies also yet more formally to the estates * See also Allen on the Prerogative, pp. 82, 83. 54 REMARKS ON THE ROYAL SUPREMACY. of the realm, and involves more than the mere personal conduct of the sovereign. If the tenure of the throne itself depends upon the observance of a compact, much more does every other relation that binds together the several component parts of the body politic, in its several orders and degi'ees of men, as spiritualty and temporalty. The forefathers of Englishmen, however, had other and readier securities besides this great arcanum imperii, reserved then, and always to be reserved, for the very last resort. It is a well- established principle that the sovereign cannot administer justice in his own person, unless authorised to do so, as any oflBcer of state might be, by statute. " Edward I. frequently sat in the Court of King's Bench ; and in later times James I. is said to have sat there in person, but was informed by his judges that he could not deliver an opinion." * And " it is now an undisputed principle that, though the king should be present in a court of justice, he is not empowered to determine any cause or motion but by the mouth of his judges, to whom he has committed his whole judicial authority.''! The doctrine of this passage is, I believe, that of the gi-eat legal authorities. Thus while the im- mense latitude of nominal prerogative was overshadowed on the one side by the superiority of the combined legislature, it was on the other barred from arbitrary excess by the necessity of operating through responsible instruments. The ideal or legal monarch was invested with these high attributes, while the living one was on almost all sides limited by law, in order that the actual authority under which the work of government is carried on throughout the country in its details might be one and undivided, revered and resistless. Those who compare the history of the English Church since the Reformation with the history of the Catholic or of the Western Church respectively, in and from the times of Constantine, Jus- tinian, and Charlemagne, may treat with ridicule the hypothesis that the aim of the English Church under Henry VIIL was to reproduce essentially the same basis of the relations between Church and State as existed during the reigns of those emperors. * Blackstone, iii., p. 41 n. t Allen on the Prerogative, p. 93. REMARKS ON THE ROYAL SUPREMACY. 55 And yet, after due allowance is made for new disturbing forces, we may find reason to think that there was some essential resem- blance between that which men of the sixteenth century imitated and that which they constructed and bequeathed. They lived in times, when corruption had eaten so deep into the framework of the Christian Church, as almost to menace its existence ; and when a movement in favour of Reform, so violent as to convulse society and to set in motion forces which have already disorganised large portions of the Church, and removed entire communities from the Faith, was nevertheless in all probability the actual means, and perhaps the only possible means, of rousing and of saving Christendom. There were also impending vital changes in the constitution and order of civil society : the downfall of despotism was in pre- paration : the seat of power was about to be shifted from the hands of a very few to those of large and numerous classes : what the Crown possessed was about to pass into the hands of Parlia- ment. All these changes, beginning or about to begin, were to subject the ecclesiastical relations fixed in the sixteenth century to trials far more severe than the mere brute forces of disorder and imperfect civilisation against which the laws of Justinian or of Charlemagne had had to contend. The headstrong wilfulness of Henry VIII. and the minority of Edward VI. would have made those periods unsafe as repositories of precedents, even had the course of our traditions from thence never been legally interrupted. But the reign of Mary swept away the laws of the two former princes ; and our direct concern with them is of course limited to such as were re-enacted under Elizabeth. Now it may be asserted without fear of confutation, that from the accession of that princess, notwithstanding the arbitrary notions of three successive sovereigns, the government of the Church was practically in the hands of its spiritual rulers, and preeminently in the hands of those among them who were the most deeply imbued with the spirit of its laws. With due allow- ance in every sense for the times, that high office of foster-parent which our sovereigns had assumed was not ill discharged until the period of the Great Rebellion. Although the personal characters of the sovereigns from the 56 KEMAKKS ON THE ROYAL SUPREMACY. Restoration clown to the accession of the House of Hanover, with the exception of Queen Anne, were of a different stamp in regard to their affections towards the Church, yet throughout the whole of that period her essential liberties were respected, except when they were assailed in common, and were also in common vindicated, with those of the State. Her synod w\is summoned when it was requisite to treat of matters touching her doctrine and constitution ; the ordinary administration of her laws was conducted in her courts by appropriate instruments. And whatever may be said of the gi-oss injustice of the sheer suppression of Convocation, that most eminent example of tyranny, or the law of the strongest, acting under constitutional forms — of its political convenience or necessity, or of the frightful moral evils and utter dissolution of ecclesiastical discipline to which it led the way — thus much at least appears, that if her legislative organ has remained in abeyance, the power it should have handled has been likewise dormant, and it has not been exercised for her, even to the present day, so far as doctrine is concerned, by the temporal autho- rity. Her exterior discipline, indeed, with the decline of religion in the country, was crippled in very important points by the State, as of late on the other hand there have been some small efforts to improve it. As to judicial questions, which are now more imme- diately before us, so long as the Court of Delegates remained, it was a witness by its constitution to the ancient principle that the ecclesiastical laws were to be administered by ecclesiastical judges. Although it had been progressively altered in its composition, first by the admission of civilians, then by the dropping out of divines, and further by the introduction of common law judges, yet to the last it was composed in the main of ecclesiastical lawyers. When, therefore, we review our Church history from the time of the rupture with Rome, let us endeavour to take a candid and dispassionate estimate of that to which the Church of England is committed, of the conditions imder which she is committed to it, and of that to which she is not committed at all. She is most for- mally committed to placing the enactment of canons under the restraint of prior permission and posterior confirmation by the Crown, but by a Crown of which the wearer is able to act for him- self, and not through the medium, or under the controul, of minis- KEMARKS ON THE ROYAL SUPREMACY. 57 ters, virtually chosen by a majority in a Parliament of mixed belief — by a Crown of which the wearer had been wont to consult the synods of the Church, and gave not only the strongest possible in- dication of his intention, but likewise the most solemn and formal promise of which the case admitted, to do so thereafter, by embody- ing in the preamble of a great statute the formal declaration, that the spiritualty of England, with its own constitutional organisation, was entirely competent to deal with all matters of ecclesiastical legislation, and was accustomed so to do, just as the temporalty dealt W'ith questions of temporal right. Again, she is committed to the exercise of all jurisdiction for her own purposes, subject to the authorisation of the sovereign ; but from a sovereign in her communion, and having no political rela- tion to maintain of such a kind as to impair the freedom of his personal conscience as a member of that communion, to impose upon him the duty, or supposed duty, of maintaining a spiritual relation with other and like bodies, or to reduce, in fact, to neu- trality, or a moral zej-o, that sonship to the Church for which a king has shed his blood upon the scaffold — from a sovereign, the head of a civil government, all whose component members owed to that Church spiritual allegiance — from a sovereign whose obvious duty it then was to be the guardian of the religious as well and as much as of the civil liberties of the subject, and to provide in the same rational manner for each respectively, namely, by taking care that the laws affecting each should be administered, so far as might depend upon his royal choice, by the persons best acquainted with their tenour and most deeply imbued with their spirit. But of Coiu'ts of Appeal, not composed of such persons, appointed by Par- liamentary majorities, and assented to by the sovereign on the ad- vice of ministers, whom those majorities had constrained him to accept, the Church knows nothing : and this whether such courts be nominally composed of her members or not, except that if they chance not to be so composed, the evils of such a system, in either case intolerable, are only rendered not perhaps the more real, but only the more glaring. Of the permanent suspension of her legislative organ, on pretence of its defectiveness, but without any attempt to amend it, the Church knows nothing — that is, knows nothing in the way of acquiescence or approval, though she knows, and to her cost, 58 REMARKS ON THE ROYAL SUPREMACY. in the deep practical abuses and corruptions, the stagnation of reli- gious life, and the loss of command over her work, and over the heart of the nation, which it brought upon her. As to the mere doc- trine of prerogative, as a repository of vague and undefined powers over spiritual things, from which they are to be produced, as may suit occasion, to overrule, by the help of some shadowy doubt, the plain meaning of statutes, or to browbeat the most temperate as- sertions of religious freedom for the members of the Church, such a doctrine deserves no more respect at the hands of Englishmen than the twin doctrine respecting things temporal that was in vogue during the seventeenth century, but has long since been consigned to oblivion or to shame. Over a weaker subject it still some- times utters its indecent vaunts. If it be said these things have been done, and the Church has not remonstrated ; the answer is, that care has been taken, by suspending her legitimate assembly, to make general and formal remonstrance a measure of such diffi- culty, and therefore of such gravity, that it might naturally be re- garded as the almost immediate antecedent of separation. Mat- ters are already at a formidable pass, when great constitutional and public organs come to remonstrate before the world with one an- other. When the Parliament remonstrated with Charles I., the hand that guided the pen was ready to brandish the sword. Nothing but extremities would justify such remonstrances as would alone have fully met the case ; and to extremities themselves the ques- tion had not come. It was not destruction, but danger — danger smiling and decked with flowers, into which she was thus brought. Neither was it any one single act against which she was called to remonstrate ; it is a long and intricate series of changes, most of them affecting directly not herself, but other great constitutional organs, whose action in turn tells upon her state, and the cumula- tive effect of which has been, to bring her out of the sphere of orderly and regulated freedom, too near to the verge, in spiritual things, of unredeemed and abject servitude. Nor does the victim of oppres- sion lose his title to remonstrate when the cup has at length over- flowed, because it may be shown that he was entitled to complain before the swelling mass had reached the brim. Further, let it be owned that, in speaking thus of the Church, we speak of that sacred and unworldly spirit in her, which ever REMARKS ON THE ROYAL SUPREMACY. Si) conforms to the Spirit of her Lord, which is grieved with all that grieves Him, and draws delight only from that wherewith He is pleased. The State has used the Church's heart and soul thus ill, stopping up the avenues of spiritual life, warmth, and motion ; restricting, enfeebling, and corrupting it. But to the body of the Church, to the concrete mass of good and bad, to the multitude of carnal-minded rulers and teachers, whom it for a long period of time continued to thrust into her offices — to the Church, as au institution endowed with the goods and privileged by the laws of this world, the State has not been in its own sense unkind. It has treated her in the way in which Wordsworth's noble ode represents the Earth as treating man, the spiritual denizen of her domain : — " With something of a mother's mind The homely nurse doth all she can To make her foster-child, her inmate man, Forget the glories he hath known, And that imperial palace whence he came," Even so the State has guarded with no small rigour — at least, until a very recent period — not the property alone, but the honours, and not the real only, but the imagined privileges and securities of the Church. She has been plied with indulgences that have enervated her vigour ; she has been carried in the arms of power, and has forgotten to tread with her own feet her own narrow upward way. She has seen men debarred of their civil rights and privileges, because any law conferring them would also confer upon them an influence over her fit only to be exercised by her members ; and she learned with ease and long retained, and even yet has but half unlearned, the baleful lesson, that taught her to rely on these spurious aids ; to accept these illusory, and even at length unjust, compensations for the silent decay and overthrow of her natural defences. Anticipating ex- tremes which have not arrived, men already say ; the blandish- ments of Dalilah have lulled her into false repose ; she aM'akes at the clank of her fetters, and she finds that the lock of her strength is shorn. Considering, however, what upon the whole England has been for the last three hundred years, and what share the Church has had in making England such ; what place she holds in the mind of the 60 KEMARKS ON THE ROYAL SUPREMACY. country and in Christendom ; what she has done for the religion, and what for the civiHsation of mankind ; liow she has carried down her hfe, and the unimpaired deposit of the faith, through so many ages of subtle and varied trial to the present day; what pro- mise she now exhibits that she may yet, and soon, valiantly contend for the Gospel against its adversaries, on behalf of Christendom and the faith of Christendom at large, and not only for her own children in her own border — I for one cannot take part with those who say that the English reformers betrayed their trust ; I cannot think that after due allowance made for human infirmity, their work has been wholly condemned by its results ; I cannot express a preference over the alternative they chose, for any among the alternatives they rejected ; such as re-attaching the Church of England to the Roman obedience ; reconstituting it after the Presbyterian platform ; or parcelling it out by the scheme of Independency. But neither can it be admitted that if the justification of the reformers is to rest on such grounds as the foregoing, their repu- tation can owe thanks to those who would now persuade the Church to acquiesce in a disgraceful servitude, and to surrender to the organs of the secular power the solemn charge which she has received from Christ, to feed His sheep and His lambs ; for the real feeder of those sheep, and those lambs, is the Power that determines the doctrine with which they shall be fed, whether that determination shall profess to be drawn straight from the depths of the mine of revealed truth, or whether it shall assume the more dangerous and seductive title of construction only ; of a licence of construction which disclaims the creation, the declara- tion, or the decision of doctrine, but which simultaneously with that disclaimer has marked out for itself a range of discretion which has already enabled it to cancel all binding power in one of the articles of the faith, and will hereafter as certainly enable it to cancel the binding power of all those which the first fell swoop has failed to touch. No ; let us vindicate the reformers by showing that we believe their conduct to have been guided by reasons which existed for them, though they no longer exist for us ; and let us imitate them by labouring to fix the position of the Church for our own time, REMARKS ON THE ROYAL SUPREMACY. 61 according to the conditions and the prognostications which the time itself not offers only, but rather thrusts and forces on our view. By some — as for example, by Roman Catholic writers — it may be said that the account here given is a plain admission that the Church of England under Hem-y VIIl. deliberately consented to enter into a state of slavery. Now, whatever the state was, they are right as to the fact that there was a consent of the Church to certain most important terms ; and it is necessary to put it pro- minently forward, because there is a notion at the present day, that to talk of the Church as consenting to be dealt with in this or that manner is like saying that gold-leaf had consented to be beaten, or wool to be carded : a notion, as unhistorical as un- reasonable, that the Church never had any independent rights with which to part, which it is necessary to shut out in express words, because its singular convenience in eking out defective arguments makes up for its injustice and its falsity. The Church did as the Roman Catholics truly allege, consent to the state into which she entered at the Reformation, so far as that was fixed by statute. The fact is important ; because if she once had these independent rights, her former possession of them at once sug- gests the further question, whether, and under what circumstances, she might be bound in duty to resume them ; and the fact is even more clear than it is important. It was no tacit, no obscure, no hurried, no equivocal consent. It was a deliberate consent, after consideration upon the several heads which have already been recited ; and with respect to all that part of the consent which touches legislative power, the 25th Henry VIII. chap, xix., hav- ing fully set out in the preamble the submission and petition of the clergy, commences the enacting part with tlie words, " Be it therefore now enacted, by authority of this present ParUament, according to the said submission and petition of the said clergy f^ and it then proceeds to provide accordingly. That reputed contract, therefore, between Church and State, which in general does no more than construe into Mords what has been theretofore expressed in acts alone, and which is, in fact, the philosophy of history in one particular department, in the present instance is a literal as well as a virtual truth, so far as relates to 02 REMARKS ON THE ROYAL SUPREMACY. the terms of the consent, submission, and petition of the Convoca- tion, to the acceptance of them by the king and Parliament, and to whatever was truly and constitutionally involved in that accept- ance. The review of the laws ecclesiastical, indeed, has no longer any effect for us, as the scheme ultimately failed of effect, and has now no legal or practical being ; and the particular title of Head of the Church has been wisely exchanged for the more modest and true appellation of Supreme Governor of the Church of England.* But, subject to these two limitations, the above-named consent of the clergy has become the law of the land ; and the responsibility of it, whether for good or for evil, or for both, has descended upon the English Church, and upon its clergy of the present day. Doubtless the treaty (so to speak) between the civil and the ecclesiastical power, which was elaborated in words so remarkable by the men of that day, was a treaty of the kind which in the law of nations is called real, a treaty intended to bind the successors without limit of time. But doubtless, also, it was a conditional treaty. Its conditions were partly expressed in the framework of the several statutes of the epoch, partly presupposed, and experimentally known, in the subsisting constitutional system. Not that any slight changes in the law, or any changes, how- ever great, which might consist with the spirit of union and har- mony between Church and State, and with the due and free discharge by each of its essential functions, ought to disturb the foundations of that settlement. But changes which do not so consist, must evidently at a certain point of their progress bring the settlement itself into question. It may be said that to speak of a treaty as subsisting between tlie State, which is sovereign, and the Church, which is subject, appears a licentious use of terms. For treaties must be between powers actually, as well as originally, independent. Yet we speak of the treaty of union as a binding one between England and Scotland, although both are now, in their separate capacity, subjects, and the imperial legislature alone is sovereign ; and circumstances are conceivable, though in the highest degree * 1 Eliz., c. 1, s. 19. KEMAP.KS ON THE ROYAL SUPREMACY. 03 improbable, which might justify and even require the dissolution of that treaty, and the resumption by each nation of its original independence. But if we waive this argument, and regard the Church as simply subject, the rights of subjects, whether as individuals or as bodies, to have the laws of a country adjusted from time to time, accord- ing to the dictates of reason and justice, are not the less certain and sacred, because they are indeterminate or unwritten ; on the contrary, they are both certain and sacred in the highest degree, of which any right growing out of human relations in society can admit. Besides, it is impossible in any case to forget this, — that the independence of the Church, in regard to legislation, had never been definitively surrendered by her on any earlier occasion. She then agreed by compact to do what she had formerly done by discre- tion only. AVhen she made that agreement, it was in her power not to have made it. By making it, she did not — nay, without forfeiture of her essence she could not — acquit herself of the obligation at all times to judge and to act, in relation to the State and in all other relations, as the fulfilment of her essential pur- poses might require. Because that obligation was founded, not merely in her right to prolong her historical existence, but in the perpetual ordinance of God, imposing on her various members duties towards one another, which were of the primary law and conditions of her being. And as no assembly of parents, which might ever so formally bind itself to give over to the State the charge of their infant progeny, could be justified in adhering to so unnatural a compact, so no assembly of Bishops and clergy, in- heriting the injunction of Christ to feed His sheep and His lambs, could, by any agreement whatsoever, make over to any other body than the Church herself that feeding oflace, or in the smallest degree derogate from their own awful responsibility for its fulfil- ment. If they made such a compact as was originally to that effect, it was null and void ab initio. If they made, as they did make, a compact which originally was not to that effect, but which might or may become so, then from the moment when it has so become, it is null and void in spirit, and its nullity and avoidance in spirit would entail upon them, as their first duty, likewise to G4 REMARKS ON THE ROYAL SUPREMACY. put an end to it in form, at the earliest moment practicable after the facts should have been clearly established. It has appeared, then, that the statutes of the Reformation disavowed any aim at establishing a system of principles novel in our law touching ecclesiastical jurisdiction ; but sought to provide effectual safeguards on behalf of the State, for the principles on which British law had theretofore been founded, but which the exorbitant power of the clerical estate tempted it, notwithstanding repeated acknowledgments, from time to time to question ; and that while these safeguards have undoubtedly answered their purpose of securing the State from encroachment, they have not, until the recent disastrous instance, wdiich is now agitating and threatening to rend the Church, brought its faith into jeopardy by any doctrinal decision at variance with the declarations of her own organs. It now, however, appears that the actual machinery provided for the decision of doctrinal questions on appeal, has yielded a result in the Gorham case which, had the Court been one binding the Church proprio vir/orc, would, according to high authorities, have involved her in the guilt of heresy. And since this is not, as has been most unreasonably alleged, the proper, though late, fruit of the great statutes and instruments of the Reformation, but the consequence of deflection from their spirit, their letter, or both, it becomes us carefully to examine the nature, the amount, and the steps of that deflection. Let us, then, assume as our starting point, that which the reason of the case and the law of the land appear to indicate as the just one — namely, the statute of Elizabeth. Of course, those particular enactments of former reigns which still subsist must be taken into view ; but the general idea of the royal supre- macy, for which the Reformation has to answer, ought in fairness to be taken from such laws and acts as remain, not from those which have passed away. This idea I take to be represented in the universal annexation of corrective jurisdiction to the Crown ; in the establishment of the controul of the Crown over ecclesiastical legislation ; and, on the other hand, in the reference of those measures to the single principle that they were part of the ancient rights of the Crown of England, and in the formal assurance REMARKS OX THE IJOYAL SUPREMACY. 05 that no other than those ancient rights had been, or uould be, claimed. Since that time, three material changes have been made in favour of the Church— namely, the following :— - First. That all ecclesiastical jurisdiction, except that of the last resort, should be exercised, not only by the instrumentality, but under the dii'ect authority, of the Archbishops and Bishops. Secondly. That the Court of High Commission has been abolished, and all such courts condemned in sweeping terms by the Bill of Rights. For although Lord Coke contended that the issuing of such a commission lay within the ancient prerogative of the Crown, Bishop Stillingfleet, observes Mr. Stephens,* has sliown that the cases quoted by him do not come up to the point ; and, at any rate, what is material to our present purpose is to remark, that by such courts the Crown proceeded in prima im^tantid against persons by ecclesiastical censures, which it has been unable to do since their abolition. Thirdly. That the work of visitation, involving so mu<'h of the ordinary government of the Church, soon ceased to be employed as at the immediate bidding of the Crown, and for the purposes of ordinary government in the Church ; and its executive acts, in virtue of the supremacy, have been reduced by the course of practice within a very narrow compass, and now have relation to matters of necessary form, although even these are not wholly unattended with embarrassment. But there have been other, and m\ich more important, changes the other way. The gi'catest of these has been the suspension of the sittings of Convocation. The legislative power in any body or society, which is the highest, is the proper instrument for correcting the errors which may be committed by the inferior powers, whether executive or judicial. So long as a legislative power is in a state of activity, it may securely entrust to the executive the ordinary controul of the administration of justice ; and if any serious errors arc committed, there are early opportunities of correction. * Stephens's Ecol. Statutes, vol. i. p. 357 n. F 06 REMARKS ON THE ROYAL SUPREMACY. But when the legislative organ has been permanently suspended, every other power in the body passes gradually into a false posi- tion. The eye of the supreme supervision is closed ; a great void, in the first instance, is created. Of the power taken from its lawful owner, much remains waste ; part passes to the civil legislature, part becomes licence in the hands of private persons, part falls to the executive governors, and lastly, part to judges, who, under such circumstances, tend more or less, and quite in- dependently of faulty intention in themselves, to become makers rather than interpreters, and thus masters rather than servants, of the law. This evil is especially serious, when the ultimate judicial autho- rity is lodged in a quarter, where the welfare of the body affected by that authority must ordinarily be not the first, but a secondary, consideration. We are thus brought to consider the second gi-eat change, adverse to the Chui-ch, which has so greatly changed to her disadvantage the position defined for her at the Reformation, namely, the change m the personal composition of the Nation and of the State. She then contracted with a State, of whose policy it was a capital part, that all its members should be her members too ; and her members, moreover, not by a nominal profession only, but through a membership tested in the most searching manner by periodical participation, subject to public discipline, in her hiffhest ordinance. And that this circumstance entered essen- tially into the considerations upon the strength of which she made her bargain, we may well judge, not only from the writings of her divines bearing upon the subject, but from the tenacity ^rith which her governors resisted the toleration of Dissenters and their admis- sion to political privilege. It is to be hoped and presumed that they did not do this fi-om selfishness and pride ; at any rate it is obvious that what they resisted was a claim not merely to civil pri- vileges, but to the exercise of powers that included much controul over her own destinies, and that, augmenting their pretensions by slow degrees, have now fastened upon her the degrading imputa- tion, that she has given over the decision of the doctrine of Christ into the hand of the powers of this world, and has vilely sold to Caesar the tilings that are of God's own image and possession. While the pretensions of the State have been in constant growth, REMARKS ON THE ROYAL SUPREMACY. 67 its composition has rendered it progressively less fit to exercise even the qualified functions it had before possessed. Divisions of opinion have multiplied ; the nation is broken up into many sects and religions ; all claim the equal exercise of political power, and nearly every claim has been admitted ; so that with respect to those which remain unacknowledged, there are many who think that we offend seriously against the principles of social equality by withholding them ; while on the other side no real principle is involved in a continuance of that refusal. The tliird great change in the position of the Church is from this : that the personal will of the sovereign has lost its ancient place in the constitution of the country. The Church had at the Reformation, and now has by law, the presumed security, that the sovereign shall be a member of her communion. When, therefore, the individual conscience and con- viction of the sovereign was recognised as a powerful element in determining the course of policy and legislation, the Church might well look upon this relation to the Crown as a most important safeguard. But the altered position of the Crown has gradually been reducing, and has now perhaps destroyed, the value of such a safe- guard. The sovereign, whom the English Church at the Reform- ation acknowledged for her head, was one enabled by his position, and in fact accustomed, to rule with a strong hand the temporal no less than the spiritual estates ; and if there then was danger of her enslavement, it was from him and not from them. That danger she was content to meet in the strength which her relation to his private conscience gave her. But from the time when Parliament began to coerce the sove- reign, to the time when, perhaps we may say in the year 1829, there was no more struggle because the sovereign had ceased to resist, the Church was drifting from her position ; instead of one master she was coming to have many ; it is now the majority of the Commons' House of Parliament to which she must look as being in effiect the Crown's capital adviser with respect to the exercise of its ecclesiastical supremacy. The fourth great change in the position of the Church is to be found in the progressive alterations of the composition of the courts F 2 68 MJKMARKS O.N Till: l.'OY.U- SrPl.'EMACY. by which ecclesiastical causes were to be tried. We have seen that it was a fuiidaniental idea of the Reformation that the spi- ritualty was the proper instrument, according to the Constitution, for the administration of Church affairs. The highest legal authority, that of Lord Coke, assures us that upon this principle the judicial system of his time was framed. He says it was most necessary that for deciding finally questions of heresy, clergy, discipline, immorality, and a multitude of others which did not belong to the common law, ecclesiastical tribunals should be established. Accordingly, we find that it was the practice of the Crown, for a long series of years from the Reformation, to act upon the principle cuique in arte sua credendum as regarded spiritual, not less than temporal, matters. And so it is imderstood that the Court of Queen's Bench would still act, if the presentee to a living, applying for a quare impedit, were impugned by the Bishop on the ground of heresy. 1 The most important functions of the ecclesiastical judicature, connected with the State, were discharged from the Reformation till the Great Rebellion by the Court of High Commission. We are told that, during the Tudor period, these Commissions were not enrolled in Chancery, " lest their lawfulness should be im- pugned upon such a publication."* It may therefore be difficult to ascertain exactly what the composition of this Court may have been on each occasion of its appointment. But the detail is hardly necessary, inasmuch as we know that it was always regarded as the great engine of episcopal oppression by the opposite party, which clearly shows what influence predominated in it. Neal mentions its even meeting at Lambeth. Strype names twenty- eight of the persons in the Commission of 1576. Of these, ten appear to be Bishops, six other clergy, eight civilians, four judges and officers of State. But the enumeration is incomplete. f With the Court of High Commission in 1640 ;j; fell the original jurisdiction of the Crown in matters ecclesiastical. It had originally been exceptional according to Lord Coke, and the * ]>ro(lie's British Empire, i. lo5 ; 4 In.st. .32(), 3.32. t Strype's (liiiiKlal. p. oOJ<. + IG Car. 1.. c. 11. KEMAliKS ON THE KOYAL SUPREMACY. 60 power given to appoint it liad reference to the peculiar crisis in the Church at the commencement of the reign of Elizaljeth ; and the M'ords of the Bill of Rights seem to imply that even when legal it was unconstitutional. The appellate jurisdiction was exercised through the medium of the Court of Delegates. There is no example, we are told by Bishop Gibson, of any peer or common law judge appointed to any Commission before the seventeenth century, and not more than one in forty Commissions down to the Great Rebellion. The records of the Court now available commence in 1609 ; and during the whole period of two centuries and a quarter, down to 1832, there appears to have been before it only three cases of heresy.* The Commission of 1712, in Whiston's case, comprised five bishops, five civilians, and three common law judges. It thus appears that there had been a considerable change within a hundred years, but still the two main elements of the Court were bishops and ecclesiastical lawyers. Although the cases of heresy tried, between 1609, when the records of the Court commence, and 1832 were only three, and all these without any issue : although there never was a question tried before that Court approaching that of Gorham v. the Bishop of Exeter in dignity or importance ; yet to the very last that Court retained this not unimportant token, at least, of the character of a Court spiritual — that its judges, for whatever causes, were mainly civilians. In the time of Blackstone, as he himself has told us, the case stood thus : " Tliis Commission is frequently filled with lords spiritual and temporal, and always with judges of the Courts at Westminster, and doctors of the civil law."t And from Haggard's Reports, I find that in 1781, even upon a question whether a marriage might not be declared void on the ground of force and custody, the Commission of Delegates contained three lords spiritual along with three lords temporal, three connnon law judges, and three civilians. :|: Enough has now been stated to show that, for a long time, the * Pari. Pai)er, No. 3-22, Soss. 1850. ^-Blackstone, vol. iii. p. (j6. % Haggard's Kejiorts, vol. ii. p. 436. 70 KEMAKKS ON THE ROYAL SUPKEMACY. pledges of the Reformation epoch were not forfeited, and the theory of our great lawyers kept in vigour by practice, in regard to the vital principle, that the laws ecclesiastical should be admi- nistered by ecclesiastical judges. It may however be said, cer- tainly the courts spiritual of a certain era were ecclesiastically composed ; but the Crown might have composed them otherwise. I answer, the Crown was free to compose them otherwise, but only as it was free to do anything else that is wrong, and that is con- trary to the spirit of its trust. The Crown could not have com- posed them otherwise without acting in violation of the spirit of the Act of the 1st of Elizabeth, and of the letter, not indeed of the enacting part, but of the more solemn preamble, of the Act of the 24th of Henry VIII. If it be asked, why then did later times infuse more and more of the secular element into the Court of Delegates? and why did a commission of bishops and judges recommend that causes in appeal should come to the king in council? — I answer to the first question, that there is scarcely a single precedent of any kind set in the Church for a century after the accession of the House of Hanover, which is good for any purpose but that of a warning : that (for religion) disastrous century, in whose ecclesiastical archives, not yet nearly unrolled, every loathsome abuse " Hides its dead eye from the detested day." To the second I reply by adopting the sentiment which the Bishop of Bangor has recently expressed in a letter to his clergy. The period of a century and a half or more had pro- duced but three causes * for lieresy in the Court of Dele- gates, and none of those causes came to any issue. The first cause, that of Salter against Davis in 1690, was disposed of, in another form, by the Court of Queen's Bench. The second, that of Whiston, went to Convocation. In the third, that of Havard against Evanson, in 1775, the appellant desisted. Under these circumstances it might readily be assumed that that branch of the appellate jurisdiction was virtually extinct, and the recollection of it might easily be lost among the multitude of mixed questions, and questions only in name ecclesiastical, for which an improved * Pari. Paper, No. 322, Scss. 1850. REMARKS ON THE ROYAL SUPREMACY. 71 provision had to be made ; and also amid the still greater mass of questions purely civil, that come before the Privy Council in appeal. The trial of doctrine by this Court had become a thing- unheard of in the Church of England ; and what has just now started forth in giant form, was, when the latest statute was framed, probably overlooked, and (according to the saying) given into the bargain. It is not too much to say, the appellate jurisdiction in cases of heresy, legally enacted at the Reformation, has never actually lived. Thrice only has it moved ; and thrice without effect. " Ter conatus erat circum dare brachia collo : I Ter frustra comprensa manus effugit imago Par levibus vcutis, volucrique simillima somno." Since 1 wrote thus far, Lord Brougham has declared from his own recollection that the conjecture already made was correct ; and that cases of heresy were not taken into view at all on the passing of the Act of 1833. In the year 1832 an Act * was passed which transferred the powers of his Majesty in Chancery over ecclesiastical causes to his Majesty in the Privy Council. This change had been re- commended by the Commission which sat in 1828 to inquire into the state of the ecclesiastical law. It does not appear what was the precise view of that Commis- sion as to the mode in which these causes were to be tried, as there was at that period no fixed or statutory Court of the Privy Council. But the presumption is, that they contemplated the reference of all such matters to the two Metropolitans and the Bishop of London, together with the Dean of Arches and Judge of the Admiralty, both of whom must necessarily have been bred in Doctors' Commons, and the latter of whom has frequently been also Judge of the Consistory Court of London ; possibly also with the addition of the Lord Chancellor, or one of the common law judges. Whether a good Court or not, this would still without impro- priety have been called an Ecclesiastical Court ; and its institu- tion would not have destroyed, though it would certainly have * 2 & 3 Gul. IV., c. 92. 72 HEMAHKS ON THE KOYAL SUPKEMACY. obscured and impaired, the principle established in law and history by the Retbrmation. AVe cannot, however, do justice to the Com- mission without bearing in mind, that they did not intend this Court to be a tribunal for the trial of heresy. But in the year 1833 * it was enacted that all causes coming to the King in Council should be tried by a Committee, to be com- posed of at least four out of a number of persons, of whom all must be laymen : a very small proportion only could be civilians ; none of the rest, except the Lord Chancellor, need be members of the Church of England. Nay, the Court might actually be composed in any given case of persons holding their offices only during the pleasure of the Crown, that is to say, of the Minister of the day. This court then was a court essentially civil, not only in the sense in which, as Lord Coke observes, the bishops' courts, the courts of the lords of manors, and others, are all nevertheless king's courts, but also because its personal composition was in sub- stance temporal : the lay ecclesiastical lawyers, who should have but a secondary place by the side of bishops or divines in a court for the trial of doctrine, were here the only element at all related to the subject-matter ; it could but be an insignificant one, and uot even a single civilian need by the constitution of the court have sat upon the Gorhara case. It is vain to lay stress upon the un- meaning arrangement for the presence of bishops at the hearing of such a case, which has been unduly embellished with the name of assessorship. For, first, they are few in number; secondly, so many other qualities are of necessity to be regarded in the choice of archbishops, and likewise in filling the see of London, that the three persons, who are officially Privy Councillors, can very rarely be the best theologians of the Episcopal Bench ; thirdly, their presence is not required by law ; fourthly, they are no assessors at all, have no defined function, and need not when present be consulted at all, or may be consulted on the small points and not on the great ones ; fifthly, the whole system of such consultation is secret, and irregular, and in the highest degree irresponsible, and no blessing can be expected to follow it. Here then we have arrived at a plain and a gross violation of • 3&4Gul. IV.,c. 41. REMARKS ON THE ROVAL SUPREMACY. 73 the principle recited in the preamble of the 24th Henry VIIL, that the spiritualty, according to the constitution of the realm of Eng- land, administered the law spiritual, as the temporalty adminis- tered the law temporal ; the principle declared by Lord Coke, that the king administers his ecclesiastical laws by his ecclesias- tical judges, a principle of universal application, but of the most especial and vital application, it need hardly be observed, in the trial of doctrine. And thus I arrive at the answer to ray second question proposed at the outset, namely this, that the present composition of the appellate tribunal, with regard to causes of doctrine, is unreasonable, unconstitutional, and contrary to the spirit of the Reformation statutes. The cure, it is obvious, must be sought in a return to the prin- ciple, of which those statutes certainly contemplated and pointed out, even if they did not in their letter require, the observance. But we come now to the third question, Is the royal supremacy, according to the constitution, any bar to such an adjustment of the appellate jurisdiction as should qualify it to convey the sense of the Church in matters of doctrine ? I answer in the negative, and for several reasons. First and mainly because the royal supremacy was constitu- tionally exercised in ecclesiastical causes by ecclesiastical judges. Whether therefore we regard the appellate jurisdiction as a part of the supremacy simply restored to the crown, or as having its origin in the statutory enactments of the 24 and 25 Henry "S'lH., it matters not, in so far as that in the former case no less than in the latter the constitutional mode of its exercise through ecclesi- astical judges is clearly pointed out. The culminating point of the supremacy was in the reign of Edward VI., that reign when the Reformatio Legum announced to the world that the decision of grave causes of doctrine was to be intrusted to a Provincial Council. But secondly, Are we quite sure that the appellate power is a part of the royal supremacy in matters ecclesiastical at all ? I propound this question of course with deference ; for Blackstone tells us, " as the head of the Church, the king is likewise the dernier ressort in all ecclesiastical causes."* It would perhaps * Blackstone, vol. i, p. 280. 74 llEMAKKS ON THE ROYAL SUPKEMACY. have been too bold to propound it at all, had Blackstone appa- rently paid much attention to the point ; but he does not appear in any manner to advert to the plain fact that the king had not been declared head of the Church when the appeal was given, nor to have taken it into his view, that the statute, which attaches that title to the Crown, had not been in force for two centuries before he wrote. It is, with a view to clear comprehension of the case, a question of the highest importance, What is this appellate jurisdiction of the Crown ? It did not historically flow out of the doctrine of the supre- macy. It was not established in terms affiliating it to such a parentage. On the contrary, it was established before the legal doctrine of the Reformation concerning the supremacy was an- nounced by the law, and in terms demonstrating its much nearer relationship to a power well known to the canon law, thoroughly incorporated in the system of the Gallican Church — while there was a Gallican Church — and founded in the first necessities of the social order. The High Commission Court, not the Court of Appeal, was the genuine offspring of the statutory provisions concerning the supremacy, and it exercised an original as well as a final juris- diction. It first appeared in the first year of Elizabeth. The course of appeal was determined by statutes of 1532 and 1533, while the statute declaring the king's headship was not passed till 1534: it was by that statute, and not before it, that all lawful corrective ecclesiastical jurisdiction was annexed or at- tached to the Crown. The statute of 1532, 24 Hen. VIII. c. 12, provided* that cer- tain appeals should not go to Rome, but should be from the archdeacon to the bishop, and from the bishop to the archbishop, in his court tobc " definitively and finally ordered."! The act of 1533, 25 Hen. VIII. c. 19, extends these provisions to all ecclesiastical causes,^ and then gives an appeal to the king in chancery, with the remarkable expression that it is to be " for lack of justice " in the archbishop's court.§ * Sect. 4. t Sect. 5, G. t Sect. 3. § Sect. 4. REMARKS ON THE ROYAL SUPREMACY. 75 Now this appeal for lack of justice is very nearly a translation of the French appel comme d'abus. The expression is not employed by the statutes in giving the appeal to the bishop or archbishop, and can hardly have been introduced without a special meaning.* I am far from presuming to assert that this appeal was identical with the appel comme d'ahiis. But it seems clear, on the other hand — 1. That it was appointed in a sense distinct from that of the common and purely ecclesiastical appeal : 2. That the appel comme d'ahus was by no means merely analogous to the power of prohibition exercised in our common law courts for the protection of civil rights. Van Espen says — " Instituuntur apjjellationes ah ahusu, cum adversus decreta con- ciliorum, receptas consuetudines, et jura regni aut jurisdictionem regiam.^ Judex Ecclesiasticus aliquid per abusum attentat; quod his verbis a Pragmaticis efferri solet ; cum violantur Decreta, con- stitutiones regia, et Libertates Ecclesice Gallicana.^^ f This description of appeal arose in France, as did the appeal in England, in the earlier part of the sixteenth century, under Louis XII. and Francis I. The clergy of France laboured to obtain a definite enumeration of the matters in which these appeals should be allowed ; but the Crown always answered that the right was general. At any rate let this be observed : the Crown possesses the appellate jurisdiction, if we construe the two statutes 24 and 25 Henry VIII. together, under the express cover of the remarkable preamble that assigns to the spiritualty the administration of ecclesiastical laws : and in conformity, as we have seen, with this preamble, was the appellate jurisdiction for a very long period actually exercised. Let this be so again in the matter of heresy. The sense of the Church will be sufficiently expressed, and the Royal Supremacy consistently maintained. Those who have given their adhesion to the system of Church and State as it has existed in England, may, it is possible, have * There is a marked analogy to the language of the Constitutions of Cla- rendon : — " Ab archidiacono debebit procedi ad cpiscopum, ab episcopo ad archiepiscopum, et, si archiepiscopus defuerit injustitid exhibendd, addominum regem perveniendum est postremo," &c. (Art. VIII.) t Jus Eccl. Univ., Part III. tit, x. cap. iv. sect. 30. 76 KEMAUKS ON THE KOYAL SUPREMACY. conceded too much to the civil power in respect of controul over legislative and judicial action in the Church. But this, at any rate, must be plain to all who think that God has revealed a certain doctrine and appointed an organ for its propagation, that such a scheme as the scheme of the Reforma- tion has here been described to be, and as probably prevailed more or less at former periods of the history of the Church, abso- lutely requires and presupposes in order to its justification on principle, or to its practicability in action, a prevailing and per- vading harmony in the composition of the Church and the State respectively. AVhether or not, when such a harmony prevails, the Church can be justified in consenting to act only within the bounds and for the effects to which the State is willing to attend her with its civil sanctions, it is plain that a system of the kind becomes un- christian, and even directly immoral, as opposed to the first dic- tates of conscience, when the State is composed in great part of those who do not own the authority of the Church at all, and when, in the minds of a further and large portion of the community who profess her name, the idea of their relation to her has become a merely social and legal idea, and no part of the creed in and by which they hope for salvation. The proposal to introduce in some form, and that form the one most favourable to the State and its influence, the voice of the Church into the trial" of doctrine, is one that tends not to aggran- disement, and not to strife, but on the contrary to peace. It can hardly be expected that those who acknowledge a spiritual allegiance to the Church will either waive their own con- victions, or yield their place within her pale, because, under a very recent law, there has appeared the wholly novel phenomenon of a court essentially temporal declaring the doctrine of the Church in a matter of the highest nature, and in a sense opposed fo that of the ( Vtholic faith : and especially when the lessons, which they learn from the history of their country, induce them to believe that the statute creating that court is truly and properly, with refer- ence to the present purpose, an unconstitutional statute ; the cause, as we now know, having been an oversight on the ])art of its fran^.crs. REMARKS OX THE ROYAL SUPREMACY. 77 Let us consider a little, then, two points : tirst, -whether it is unreasonable for those who are now shaken in the very ground- work of their ecclesiastical position to press with urgency for a change in the law, rather than to abandon the communion of the Church ; secondly, whether that change may the more fairly be prayed for, on the ground that the system now prevailing for the trial of causes of heresy, although legal, is unconstitutional. As to the first, w^hen we consider how the passions of parties contending for what they conscientiously and dearly prize, are apt to be inflamed, and how, with inflamed passions, men must needs make false estimates of their recijH'ocal positions, and unreason- able demands each upon the patience and liberality of their oppo- nents, it is not difficvdt to understand the displeasure of those who say, " Let the opponents of the judgment in the Gorham Case either be contented with the liberty still allowed to them as well as to their antagonists ; or let them leave the Church, in which, with ' consciences set upon hair-triggers,' they are disturbers of the public peace on behalf of their own private opinions." But let these persons be calmly prayed to recollect, that there is in the conviction of their brethren, to whom they thus appeal, a cer- tain body of revealed truth given by God to man, and defined in an intelligible manner for his use, which it is not only the specific office but the divine commission of the Church to teach, and to which the doctrine of baptismal grace belongs. Now, if these things be true, then to propose that the faith and its opposite in any particu- lar article shall be placed on equal terras within the precinct and by the law of the Church, is simply to demand that she shall be- tray her office. It is precisely — however startling the comparison may appear — what it would be, relatively to the marriage state, to enact that fidelity might be maintained in it, but that adultery might also be practised at the option of the parties. It is a pro- cess to which if the early Church of Christ would have submitted, she never need have seen her children mangled in the jaws of lions, or writhing on the stake or in the flame. But then it is also a process which would have turned the dwelling-place of the living God into a Pantheon : it is therefore that which simply could not be ; because it is contrary to the words which His hand had graven 78 REMARKS ON THE ROYAL SUPREMACY. upon the Rock with a pen of iron — " The gates of hell shall not prevail against it." The question, whether those things be true, is one of Christian doctrine, not to be argued here. The world may not respect it as the belief of Christendom ; but they surely will respect it as the private persuasion of free men, held under the charter of British liberty, and in conformity, as those men are convinced and ready to maintain, with all British history and law, down to our own day. It would therefore be vain to ask of them to do that which, as will be seen, is at utter variance with their own fundamental principles. They who view the Church as a voluntary association of men for the purposes of what they think to be the Christian religion, may well, for the sake of peace, be minded, under supposable cir- cumstances, to quit it, and to form another such voluntary associa- tion, as they would take a new house, or choose a new coat when they might think fit so to do. But they who regard a given body, called the Establishment, as being likewise the Church, and as therefore charged with the care and nurture of their souls, cannot go out of her, until she denies the Faith, and ceases to be the Church, so that they must seek the Church elsewhere. With them, I apprehend, it never can be a matter of option or policy whether to leave the Church, as established by law, or not. Whatever permits them, will likewise drive them to depart. Whatever permits them, will likewise bind them to remain. It seems therefore not unfair, that they should ask that the matter may in some way be brought to a defined issue ; and that the Church, if not in a perfectly free assemblage of all her orders, yet at all events by the mouth of her bishops, may be allowed to say what is her own doctrine. It is not for the love of strife that they ask it ; but it is for the love of peace : for the love of truth certainly, but of peace also. These two great impulses will be found entirely accordant in a case like this, so soon as the Church shall have spoken : if she spoke that which they will not contemplate or name, truth would oblige them to depart in peace ; but on the other hand, as long as she is prevented from speaking, there can be no peace with those REMARKS ON THE ROYAL SUPREMACY. 79 who would so prevent her, and who would leave them only these two alternatives, to remain in the Church with doubt as to her faith- fulness, or to quit it with doubt as to her treason : and so to have a safe conscience neither way. This would be a mode of conduct going far beyond the licence of any social conflict ; a refinement of cruelty far surpassing the vulgar violence of physical torture ; an engine, too, of demo- ralisation in its working on individual consciences, such as, I should hope, it would be the recognised and common interest of us all to exclude. And now is it unreasonable to say, that the law under which this Judgment has been given is contrary to the principles of the constitution? These words have not been vaguely used. The gi'eat primordial charter of the Reformation declares, that the spiritualty of England is the body properly qualified and entitled to administer the law spiritual of the land : as the temporalty administers its law temporal. And this is the maxim on which, for many generations from the Reformation, our practice has actually been founded : the maxim which has .been enunciated as indubitable by the greatest oracles of law ; the maxim which in substance, and with little other modification than the admission of the legal element in the persons of civilians, exclusively prevailed until times comparatively recent ; the maxim which, even for causes only in name ecclesiastical, predominated in the consti- tution of the Court of Appeal until the time within our own recent memory, the time not yet reaching the term fixed for a title by prescription to the smallest morsel of property, when the Court of Delegates was abolished, and (one year later) the Judicial Committee of the Privy Council was erected. Will it be said, all this movement, away fi'om the statute of Henry VIII, and the maxim of Lord Coke, which is here called abuse, has really been progress and improvement ? Surely it has not the signs of either. It has gi'own up in the worst times, the M^orst for religion and morality ; and now that religious life is vigorous again, the materials of a strong resistance are in existence, and in vigour too. It came on in times, when indiffer- ence as to faith was spreading its deadly poison. Caring for none of those things, men did not bring heresy into question so REMARKS OX THE ROYAL SUPREMACY. before courts. Not bringing heresy into question, nor dealing with morals, it was no wonder that for the scarcely spiritual, scarcely ecclesiastical, causes, which were the common business of the Court of Appeal, they thought less and less of the spiritual element iu its composition. But again. That composition of- fends against first principles. It takes away the function of ad- vising the Crown upon matters of theology from those, who are conversant with it ; and commits it to those, who are not. I speak here the language of the political sphere ; a theologian might have justly said, it takes the function from those who had both a divine and a human title to its exercise, and gives it to those who never had the first, have but just got the last, and have got it nobody knows how. The transference, then, of these functions to the Court of Privy Council is not progress, but retrogression and decay. The maxim overthrown and disregarded is not one antiquated and unfit for these times, but one deeply founded in the nature of things, and in right human and Divine. It being such a maxim, justly niay we say,, that the statute which thus tramples it in the mire is an unconstitutional statute. It is a statute as truly un- constitutional as would be our investing the Executive Govern- ment with the right of taxation, or with the dispensing power ; as was one which, in the time of Henry VIII., gave to the royal proclamation the force of law ; or one which, in the time of Charles I., perpetuated the Long Parliament. These great maxims, fixing the relations of the chief forces that govern the community, these maxims in which we see Reason plant- ing the land-marks of history for man, are the lecfcs ler/iim, the i'4'iVoScf yo(xr,i of the ancients — (jjy ' OXvfiTToc Orara (pvcric aripu)v iTiKrn ,.* they are not impaired by change, but they convict and condemn change : drift away from them imperceptibly we may — it is our misfortune and our imperfection : but when a critical period has * (£<1. Tyr., H(6. REMARKS ON THE ROYAL SUPREMACY. 81 arrived, and the facts of our position are disclosed, it only remains to do as has been done in all our great periods of legislative reform, solemnly to renew our covenant with the truth, and to hand on the sacred torch, when it has been rekindled by our care, to the generation that is succeeding us in the eager race of life. The only consideration that could justify the Church's acqui- escence even for a time in the continuance of such a state of things as that established by the Acts of 1832 and 1833 in their joint effect, was, that it should have worked well : that is, that the temporal judges, most indecently intrusted with the construc- tion and application of laws strictly spiritual, should have cured by their own discretion, and that of such ecclesiastical advisers as the Crown might assign to them within the terms of the Act, the monstrous solecism of their appointment, and should have either affirmed the judgment of the Church Court below, or at any rate if points of law, properly so called, required them to depart from it, should have not departed also from the Faith, or undermined its obligatory power. But it has been ordered other- wise ; and, under the express sanction of the two English Arch- bishops, the Committee has reported to the Crown with the effect, as it appears, in the judgment of high spiritual authorities, of wholly cancelling the obligation to teach within the Church of England that article of the Christian Faith which declares the remission of sins by the Sacrament of Baptism. It undoubtedly allotos that article of faith still to be taught ; an apology which is vauntingly put forward, and can only be received in profound sorrow, because, as an index of the state of mind from which it proceeds, it has a mournful and a deeply ominous signi- ficance. It reminds one to ask the question, why was the Gospel the object of persecution in early times ? Was it because of the bigotry and exclusiveness of the statesmanship of the day, or of the mythology to which it gave its countenance ? No ; but because of its own exclusiveness. That which is the truth teaches the doctrine of love to all persons ; but by virtue of that love it teaches also to hate the errors which mislead, and the delusions which blind them. The truth therefore is necessarily exclusive of its opposite ; and to propose a peace between them is simply a dis- G 82 REMARKS ON THE ROYAL SUPREMACY. guised mode of proposing to truth suicide, and obtaining for false- hood victory. For truth itself, when not held as truth, but as a mere prize in the lottery of opinions, loses its virtue ; that, namely, of uniting us to its fountain ; since it is not by any mere abstrac- tions, whether false or true, that we are to be healed, but by being placed in vital union, through the joint medium of His truth and His grace, with the Source of healing. Yet it is devoutly to be hoped that the Church, while she must ask for all that is needful for the vindication of her faith, and must support the petition by the tender, if necessary, of all her worldly goods as a price for that Pearl of which she is but the setting, should demand no more ; and should rule upon the side of peace, obedience, and acquiescence, every doubt that does not reach to the very charter of her being. That which she is entitled in the spirit of the constitution to demand, would be, that the Queen's ecclesiastical laws shall be administered by the Queen's ecclesiastical judges, of whom the Bishops are the chief ; and this too under the checks which the sitting of a body, appointed for ecclesiastical legislation, would impose. But if it is not of vital necessity that a Church legislature should sit at the present time ; if it is not of vital necessity that all causes termed ecclesiastical should be treated under special safeguards — if it is not of vital necessity that the function of judgment should be taken out of the hands of the existing court — let the Church frankly and at once subscribe to every one of these great conces- sions, and reduce her demands to a minimum at the outset. Laws ecclesiastical by ecclesiastical judges, let this be her prin- ciple ; it plants her on the ground of ancient times, of the Reforma- tion, of our continuous history, of reason and of right. The utmost moderation in the application of the principle, let this be her temper, and then her case will be strong in the face of God and man, and, come what may, she will conquer. The form of the petition as it has now been framed by the wisdom, and sustained by the consenting voice, of the Bishops, is that before us in the Bill lately on the table of the House of Lords : it is a petition that the Judicial Committee shall remain unaltered in REMARKS ON THE ROYAL SUPREMACY. 83 n'ts composition ; that it shall still be the single organ for the decision of ecclesiastical and spiritual causes ; but that, judging for itself, and subject only to the ordinai-y forms of prohibition in case of excess, what matter is matter of mere law, and what of doctrine, it shall refer all points of doctrine when they arise to the Bishops of England and Wales for their report, which when obtained shall be final. Thus much I should have hoped, before the vote of the 3rd of June, was plain : that the State could not feel aggrieved ; that the Church would by this measure come far short of securing all that the Reformation gave or left to her, even in this point in which it was supposed least liberal to her interests and honour ; and that practically, having no power of her own to say by law on her behalf what matters were matters of doctrine, her whole security against encroachment, under such a law, must depend on the justice and moderation of the judicial tribunals of the country. She would still in fact have her causes decided by the civil tribunals ; a dangerous case, it must be owned, in times like these, when the temper of the State as such, by an inevitable necessity, becomes less and less congenial to the spirit of her supreme law that changes not. We must not conceal from ourselves that a great influence would be placed in the hands of those who would preside over the general conduct of the cause, would determine what issues should be referred and in what form of words, would shape every question under the influence of a spirit the least favourable to definite belief, that is, to dogma ; and would ask again and again, until they had got the answer nearest their views of which the case admitted. If the amendment, suggested by Lord Stanley, were embodied in the measure, the power of the Judicial (Committee would remain precisely as it is ; but for one I should attach so much moral weight to the deliberate judgment of the Bishops, that I should greatly scruple to refuse the Bill with that amendment. But it would be a gain that these decisions should come from a court avowedly civil rather than from one pseudo-ecclesiastical. It would be another gain that this civil court should by law be bound to refer questions of doctrine to the episcopal body, which Q 2 84 REMARKS ON THE ROYAL SUPREMACY. again might very properly be bound to treat them in the manner most formal and best calculated to ensure deUberate and judicial answers to those references. Whatever may be thought of the influence of the majority of the House of Commons over episcopal appointments, and of the prospects of the Church in connection with its exercise hereafter, every such churchman as I have described, who is also a loyal subject, should feel, that if the collective and judicial voice of the Bishops should deliberately utter as matter of doctrine what he individually believes to be contrary to the Catholic Faith, he could hardly claim to carry on a contest with them, as a member of the Church established by law. It appears then as if this plan, or some such plan as this, repre- sented the extremest point up to which the love of peace, the principle of civil obedience, and a desire to avoid endangering the institutions of the country, might under the circumstances properly carry the concessions of the Church, in the hope of thereby satisfying even the extremest jealousy that the State can feel towards her. And what would be asked of the State ? What would that be which it would have to concede ? It would have to do for that, which it acknowledges as the branch of the Catholic Church established in England, what it is continually doing for the humblest of its subjects, associated or not, namely, redressing proved grievances, wliich have arisen from oversight or otherwise. But in redressing this grievance, it would make no special or exceptional recognition of the authority of the Church. It w^ould act upon the analogy of law, sustained and required by common sense, under which it is already the established practice of the courts to waive all pretensions to universal knowledge — to refer questions of law from a court of equity to a court of common law — questions of fact to a jiu'y ; and so in the courts of common law, to refer for foreign law to the authority of those who know and teach it ; and in particular branches of jurisprudence, as, for example, mercantile or medical, to treat the points which belong to each especial branch of technical knowledge as issues of fact. On this principle it is now proposed to take, with respect to doc- trine, the verdict of the Bishops of England and AVales. REMARKS ON THE ROYAL SUPREMACY. 85 If, ray Lord, it be felt by the rulers of the Church that a scheme like this will meet sufficiently the necessities of her case, it must be no small additional comfort to them to feel that their demand is every way within the spirit of the Constitution, and short of the terms which the great compact of the Reformation would authorise you to seek. You, and not those who are against you, will take your stand with Coke and Blackstone ; you, and not they, will wield the weapons of constitutional principle and law ; you, and not they, will be entitled to claim the honour of securing the peace of the State no less than the faith of the Church ; you, and not they, will justly point the admonitory finger to those remarkable words of the Institutes : — " And certain it is, that this kingdom hath been best governed, and peace and quiet preserved, when both parties, that is, when the justices of the temporal courts and the ecclesiastical judges have kept themselves within their proper jurisdiction, without encroaching or usurping one upon another ; and where such en- croachments or usurpations have been made, they have been the seeds of great trouble and inconvenience." * Because none can resist the principle of your proposal, who admit that the Church has a sphere of proper jurisdiction at all, or any duty beyond that of taking the rule of her doctrine and her practice from the lips of ministers or Parliaments. If it shall be deUberately refused to adopt a proposition so moderate, so guarded and restrained in the particular instance, and so sustained by history, by analogy, and by common reason, in the case of the Faith of the Church, and if no preferable measure be substituted, it can only be in consequence of a latent intention that the voice of the civil power should henceforward be supreme in the determination of Christian doctrine. It is melancholy, it is full not only of sadness but of shame, to hear men protesting against being boimd by a doctrinal report from the Bishops of the Church, who are also and at the same time protesting against objections to a doctrinal report from gentlemen bred in Westminster Hall. Every member of the community, it seems, is on the whole fit for his office, except those whose especial * Coke, Inst., vol. vi. part iv. ch. 74. 86 REMARKS ON THE ROYAL SUPREMACY. privilege it is that they, more clearly than any other class, act under the direct transmission of a Divine authority. I find it no part of my duty, my Lord, to idolise the Bishops of England and Wales, or to place my conscience in their keeping ; I do not presume or dare to speculate upon their particular de- cisions; but I say that acting jointly, publicly, solemnly, responsibly, they are the best and most natural organ of the judicial office of the Church in matters of heresy, and according to reason, history, and the Constitution, in that subject matter the fittest and safest counsellors of the Crown. I am not ashamed to express the deep alarm with which I regard the consequences of such rejection as I have described, because some of those, among whom the evil would most powerfully operate, are not the pertinacious grasshoppers chattering in the sun, but the goodly cattle silent in the shade. I do not speak of the recent vote as constituting the case I have in view, but even that rejection is no inconsiderable step taken towards a disastrous rupture. We should, indeed, have a consolation, the greatest perhaps which times of heavy trouble and affliction can afford, in the reduc- tion of the whole matter to a short, clear, and simple issue ; because such a resolution, when once made unequivocally clear by acts, would sum up the whole case before the Church to the effect of these words : " You have our decision ; take your own ; choose between the mess of pottage, and the birthright of the bride of Christ." Those that are awake might hardly require a voice of such appalling clearness ; those that sleep, it surely would awaken ; of those that would not hear, it must be said, " Neither would they hear, though one arose from the dead." But She that, a stranger and a pilgrim in this world, is wedded to the Lord, and lives only in the hope of His coming, would know her part ; and while going forth to her work with steady step and bounding heart, would look back with deep compassion upon the region she had quitted — upon the slumbering millions, no less blind to the Future, than ungrateful to the Past. And yet, my Lord, I must venture on one word more before I close. The name of the Count de Maistre has become one of European REMARKS ON THE ROYAL SUPREMACY. 87 celebrity. Pie is one of the writers who have had the very largest share in sliaping the modern tendencies of the devout and energetic portion of the Roman Catholics of Western Europe. He is, un- happily, of the " most straitest sect " of. that church — of that ultramontane school which has been from its first origin alike needful and dangerous to the Roman system ; and he has defined its principles with even an augmented sharpness, and wound them up to a higher intensity than they had before attained. Yet listen to the words in which he writes of the Church of England : — "Si jamais les Chretiens se rapprochent, comme tout les y invite, il semble que la motion doit partir de I'Eglise d'Angleterre. Le presbyterianisme fut une oeuvre Franqaise, et par consequent una oeuvre exageree. Nous sommes trop eloignes des sectateurs d'un culte trop peu substantiel : il n'y a pas moyen de nous en- tendre, mais I'Eglise Anglicane, qui nous touche d'une main, touche de I'autre ceux que nous ne pouvons toucher ; et quoique, sous un certain point de vue, elle soit en butte aux coups des deux partis, et qu'elle presente le spectacle un peu ridicule d'un revoke qui preche I'obeissance, cependant elle est tres precieuse sous d'autres aspects, et peut-etre consideree comme un de ces intermedes chimiques, capable de rapprocher desvelemens inas- sociables de leur nature." * It is nearly sixty years since thus a stranger and an alien, a stickler to the extremest point for the prerogatives of his Church, and nursed in every prepossession against ours, nevertheless turning his eye across the Channel, though he could then only see her in the lethargy of her organisation, and the dull twilight of her learning, could nevertheless discern that there was a special work written of God for her in heaven, and that she was very pre- cious to the Christian world. Oh ! how serious a rebuke to those who, not strangers, but suckled at her breast, not two generations back, but the witnesses now of lier true and deep repentance, and of her reviving zeal and love, yet (under whatever provocation) have written concerning her even as men might write that were hired to make a case against her, and by an adverse instinct in the * Considerations sur la France, chap. ii. .-88 ^ REMARKS ON THE ROYAL SUPREMACY. If selection of evidence, and a severity of construction, such as no history of the deeds of man can bear, have often, too often in these last years put her to open shame ! But what a word of hope and encouragement to every one who, as convinced in his heart of the glory of her providential mission, shall unshrinkingly devote him- self to defending within her borders the full and whole doctrine of the Cross, with that mystic symbol now as ever gleaming down on him from heaven, now as ever showing forth its inscription ; in hoc signo vinces. I remain, my Lord Bishop, with dutiful respect. Your most faithful Servant, W. E. GLADSTONE. London, June 4, 1 850. V>tttNTED BT W. CLOWES AND SONS, StAMFOKO STREET. f 0i,