Occasional Papers Part 1

Occasional Papers.

by R.W. Church.

I

MR. GLADSTONE ON THE ROYAL SUPREMACY[1]

[1]

_Remarks on the Royal Supremacy, as it is Defined by Reason, History, and the Const.i.tution_. A Letter to the Lord Bishop of London, by the Right Hon. W.E. Gladstone, M.P. for the University of Oxford.

_Guardian_, 10th July 1850.

Mr. Gladstone has not disappointed the confidence of those who have believed of him that when great occasions presented themselves, of interest to the Church, he would not be found wanting. A statesman has a right to reserve himself and bide his time, and in doubtful circ.u.mstances may fairly ask us to trust his discretion as to when is his time. But there are critical seasons about whose seriousness there can be no doubt. One of these is now pa.s.sing over the English Church.

And Mr. Gladstone has recognised it, and borne himself in it with a manliness, earnestness, and temper which justify those who have never despaired of his doing worthy service to the Church, with whose cause he so early identified himself.

The pamphlet before us, to which he has put his name, is the most important, perhaps, of all that have been elicited by the deep interest felt in the matter on which it treats. Besides its importance as the expression of the opinion, and, it must be added, the anxieties of a leading statesman, it has two intrinsic advantages. It undertakes to deal closely and strictly with those facts in the case mainly belonging to the period of the Reformation, on which the great stress has been laid in the arguments both against our liberty and our very being as a Church. And, further, it gives us on these facts, and, in connection with them, on the events of the crisis itself, the judgment and the antic.i.p.ations of a mind at once deeply imbued with religious philosophy, and also familiar with the consideration of const.i.tutional questions, and accustomed to view them in their practical entanglements as well as in their abstract and ideal forms. It is, indeed, thus only that the magnitude and the true extent of the relations of the present contest can be appreciated. The intrinsic greatness, indeed, of religious interests cannot receive addition of dignity here. But the manner of treating them may. And Mr. Gladstone has done what was both due to the question at issue, and in the highest degree important for its serious consideration and full elucidation, in raising it from a discussion of abstract principles to what it is no less--a real problem of English const.i.tutional law.

The following pa.s.sage will show briefly the ground over which the discussion travels:--

The questions, then, that I seek to examine will be as follow:--

1. Did the statutes of the Reformation involve the abandonment of the duty of the Church to be the guardian of her faith?

2. Is the present composition of the appellate tribunal conformable either to reason or to the statutes of the Reformation, and the spirit of the Const.i.tution as expressed in them?

3. Is the Royal Supremacy, according to the Const.i.tution, any bar to the adjustment of the appellate jurisdiction in such a manner as that it shall convey the sense of the Church in questions of doctrine?

All these questions I humbly propose to answer in the negative, and so to answer them in conformity with what I understand to be the principles of our history and law. My endeavour will be to show that the powers of the State so determined, in regard to the legislative office of the Church (setting aside for the moment any question as to the right of a.s.sent in the laity), are powers of restraint; that the jurisdictions united and annexed to the Crown are corrective jurisdictions; and that their exercise is subject to the general maxim, that the laws ecclesiastical are to be administered by ecclesiastical judges.

Mr. Gladstone first goes into the question--What was done, and what was the understanding at the Reformation? All agree that this was a time of great changes, and that in the settlement resulting from them the State took, and the Church yielded, a great deal. And on the strength of this broad general fact, the details of the settlement have been treated with an _a priori_ boldness, not deficient often in that kind of precision which can be gained by totally putting aside inconvenient or perplexing elements, and having both its intellectual and moral recommendations to many minds; but highly undesirable where a great issue has been raised for the religion of millions, and the political const.i.tution of a great nation. Men who are not lawyers seem to have thought that, by taking a lawyer's view, or what they considered such, of the Reformation Acts, they had disposed of the question for ever. It was, indeed, time for a statesman to step in, and protest, if only in the name of const.i.tutional and political philosophy, against so narrow and unreal an abuse of law-texts--doc.u.ments of the highest importance in right hands, and in their proper place, but capable, as all must know, of leading to inconceivable absurdity in speculation, and not impossibly fatal confusion in fact.

The bulk of this pamphlet is devoted to the consideration of the language and effect, legal and const.i.tutional, of those famous statutes with the t.i.tles of which recent controversy has made us so familiar. Mr.

Gladstone makes it clear that it does not at all follow that because the Church conceded a great deal, she conceded, or even was expected to concede, indefinitely, whatever might be claimed. She conceded, but she conceded by compact;--a compact which supposed her power to concede, and secured to her untouched whatever was not conceded. And she did not concede, nor was asked for, her highest power, her legislative power.

She did not concede, nor was asked to concede, that any but her own ministers--by the avowal of all drawing their spiritual authority from a source which nothing human could touch--should declare her doctrine, or should be employed in administering her laws. What she did concede was, not original powers of direction and guidance, but powers of restraint and correction;--under securities greater, both in form and in working, than those possessed at the time by any other body in England, for their rights and liberties--greater far than might have been expected, when the consequences of a long foreign supremacy--not righteously maintained and exercised, because at the moment unrighteously thrown off--increased the control which the Civil Government always must claim over the Church, by the sudden abstraction of a power which, though usurping, was spiritual; and presented to the ambition of a despotic King a number of unwarrantable prerogatives which the separation from the Pope had left without an owner.

On the trite saying, meant at first to represent, roughly and invidiously, the effect of the Reformation, and lately urged as technically and literally true--"The a.s.sertion that in the time of Henry VIII. the See of Rome was both 'the source and centre of ecclesiastical jurisdiction,' and therefore the supreme judge of doctrine; and that this power of the Pope was transferred in its entireness to the Crown"--Mr. Gladstone remarks as follows:--

I will not ask whether the Pope was indeed at that time the supreme judge of doctrine; it is enough for me that not very long before the Council of Constance had solemnly said otherwise, in words which, though they may be forgotten, cannot be annulled....

That the Pope was the source of ecclesiastical jurisdiction in the English Church before the Reformation is an a.s.sertion of the gravest import, which ought not to have been thus taken for granted.... The fact really is this:--A modern opinion, which, by force of modern circ.u.mstances, has of late gained great favour in the Church of Rome, is here dated back and fastened upon ages to whose fixed principles it was unknown and alien; and the case of the Church of England is truly hard when the Papal authority of the Middle Ages is exaggerated far beyond its real and historical scope, with the effect only of fastening that visionary exaggeration, through the medium of another fict.i.tious notion of wholesale transfer of the Papal privileges to the Crown, upon us, as the true and legal measure of the Royal Supremacy.

It appears to me that he who alleges in the gross that the Papal prerogatives were carried over to the Crown at the Reformation, greatly belies the laws and the people of that era. Their unvarying doctrine was, that they were restoring the ancient regal jurisdiction, and abolis.h.i.+ng one that had been usurped. But there is no evidence to show that these were identical in themselves, or co-extensive in their range. In some respects the Crown obtained at that period more than the Pope had ever had; for I am not aware that the Convocation required his license to deliberate upon canons, or his a.s.sent to their promulgation. In other respects the Crown acquired less; for not the Crown, but the Archbishop of Canterbury was appointed to exercise the power of dispensation in things lawful, and to confirm Episcopal elections. Neither the Crown nor the Archbishop succeeded to such Papal prerogatives as were contrary to the law of the land; for neither the 26th of Henry VIII. nor the 2nd of Elizabeth annexed to the Crown all the powers of correction and reformation which had been actually claimed by the Pope, but only such as "hath heretofore been or may lawfully be exercised or used." ... The "ancient jurisdiction,"

and not the then recently claimed or exercised powers, was the measure and the substance of what the Crown received from the Legislature; and, with those ancient rights for his rule, no impartial man would say that the Crown was the source of ecclesiastical jurisdiction according to the statutes of the Reformation. But the statutes of the Reformation era relating to jurisdiction, having as statutes the a.s.sent of the laity, and accepted by the canons of the clergy, are the standard to which the Church has bound herself as a religious society to conform.

The word "jurisdiction" has played an important part in the recent discussions; whether its meaning, with its various involved and a.s.sociated ideas, by no means free from intricacy and confusion, have been duly unravelled and made clear, we may be permitted to doubt. A distinction of the canonists has been a.s.sumed by those who have used the word with most precision--_a.s.sumed_, though it is by no means a simple and indisputable one. Mr. Gladstone draws attention to this, when, after noticing that nowhere in the ecclesiastical legislation of Elizabeth is the claim made on behalf of the Crown to be the source of ecclesiastical jurisdiction, he admits that this _is_ the language of the school of English law, and offers an explanation of the fact. That which Acts of Parliament do not say, which is negatived in actual practice by contradictory and irreconcilable facts, is yet wanted by lawyers for the theoretic completeness of their idea and system of law.

The fact is important as a reminder that what is one real aspect, or, perhaps, the most complete and consistent representation of a system on paper, may be inadequate and untrue as an exhibition of its real working and appearance in the world.

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 Saviour 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, inasmuch 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 a.s.sent 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 observance, and should work only within by that wholly different influence that governs the kingdom which is not of this world, and flows immediately from its King?

... 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 a.s.sume that the supremacy in all causes, which is at least a claim to control 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 c.o.ke 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 other is _Jurisdictio improprie dicta ac mere spiritualis, Ecclesiae ejusque Episcopis a Christo data_....

Properly speaking, I submit that there is no such thing as jurisdiction in any private a.s.sociation 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 _jurisdicto_ is the authority to determine and enunciate those rights from time to time. Church authority, therefore, so long as it stands alone, is not in strictness of speech, or according 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-regulation under the guardians.h.i.+p of the State, and the State annexed its own potent sanction 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 authority, it is evident that the cogency of the reasons for welding together, so to speak, civil and ecclesiastical authority is much 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 spiritual 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 perpetual 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 pa.s.s 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 a.s.sertion that it had pa.s.sed 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 independent 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 circ.u.mstances, 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 execution, that is to say, all juris diction in matters 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.

If you allege that the Church has a spiritual authority to regulate doctrines and discipline, still, as you choose to back that authority 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 which 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.... The faith of Christendom has been received in England; the discipline 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 a.s.sociate with law and should therefore become law.

But as to the doctrine itself, it is most obvious to notice that it is not more strange, and not necessarily more literally real, than those other legal views of royal prerogative and perfection, which are the received theory of all our great jurists--accepted by them for very good reasons, but not the less astounding when presented as naked and independent truths. It was natural enough that they should claim for the Crown the origination of ecclesiastical jurisdiction, considering what else they claimed for it. Mr. Allen can present us with a more than Chinese idea of royal power, when he draws it only from Blackstone:--

They may have heard [he says, speaking of the "unlearned in the law"] that the law of England is founded in reason and wisdom. The first lesson they are taught will inform them, that the law of England attributes to the King absolute perfection, absolute immortality, and legal ubiquity. They will be told that the King of England is not only incapable of doing wrong, but of thinking wrong. They will be informed that he never dies, that he is invisible as well as immortal, and that in the eye of the law he is present at one and the same instant in every court of justice within his dominions.... They may have been told that the royal prerogative in England is limited; but when they consult the sages of the law, they will be a.s.sured that the legal authority of the King of England is absolute and irresistible ... that all are under him, while he is under none but G.o.d....

If they have had the benefit of a liberal education, they have been taught that to obtain security for persons and property was the great end for which men submitted to the restraints of civil government; and they may have heard of the indispensable necessity of an independent magistracy for the due administration of justice; but when they direct their inquiries to the laws and const.i.tution of England, they will find it an established maxim in that country that all jurisdiction emanates from the Crown. They will be told that the King is not ony the chief, but the sole magistrate of the nation; and that all others act by his commission, and in subordination to him.[2]

[2]

_Allen on the Royal Prerogative_, pp. 1-3.

"In the most limited monarchy," as he says truly the "King is represented in law books, as in theory an absolute sovereign." "Even now," says Mr. Gladstone, "after three centuries of progress toward 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." But if the absolute supremacy of the Crown _in the legal point of mew exactly the same over temporal matters and causes as over spiritual_, is taken by no sane man to be a literal fact in temporal matters, it is violating the a.n.a.logy of the Const.i.tution, and dealing with the most important subjects in a mere spirit of narrow perverseness, to insist that it can have none but a literal meaning in ecclesiastical matters; and that the Church _did_ mean, though the State _did not_ to accept a despotic prerogative, unbounded by custom, convention, or law, and unchecked by acknowledged and active powers in herself. Yet such is the a.s.sumption, made in bitterness and vexation of spirit by some of those who have lately so hastily given up her cause; made with singular a.s.surance by others, who, Liberals in all their political doctrines, have, for want of better arguments, invoked prerogative against the Church.

What the securities and checks were that the Church, not less than the nation, contemplated and possessed, are not expressed in the theory itself of the royal prerogative; and, as in the ease of the nation, we might presume beforehand, that they would be found in practice rather than on paper. They were, however, real ones. "With the same theoretical laxity and practical security," as in the case of Parliaments and temporal judges, "was provision made for the conduct of Church affairs." Making allowance for the never absent disturbances arising out of political trouble and of personal character, the Church had very important means of making her own power felt in the administration of her laws, as well as in the making of them.

The real question, I apprehend, is this:--When the Church a.s.sented to those great concessions which were embodied in our permanent 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--whether they were written or unwritten--whether they were in statute, or in common law, or in fixed usage, or in the spirit of the Const.i.tution 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 a.s.sembling 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, a.s.signed 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 principle, and (as long as it continued) a regular usage of the Const.i.tution, that ecclesiastical laws should be administered by ecclesiastical 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 alliance was justified by the results.

And further:--

The Church had this great and special security on which to rely, that the Sovereigns of this country were, for a century after the Reformation, amongst 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 discharged in a friendly and kindly spirit, and that the principles of const.i.tutional law and civil order would not be strained against her, but fairly and fully applied in her behalf.

These securities she now finds herself deprived of. This is the great change made in her position--made insensibly, and In a great measure, undesignedly--which has altered altogether the understanding on which she stood towards the Crown at the Reformation. It now turns out that that understanding, though it might have been deemed sufficient for the time, was not precise enough; and further, was not sufficiently looked after in the times which followed. And on us comes the duty of taking care that it be not finally extinguished; thrown off by the despair of one side, and a.s.sumed by the other as at length abandoned to their aggression.

Mr. Gladstone comes to the question with the feelings of a statesman, conscious of the greatness and excellence of the State, and anxious that the Church should not provoke its jealousy, and in urging her claims should "take her stand, as to all matters of substance and principle, on the firm ground of history and law." It makes his judgment on the present state of things more solemn, and his conviction of the necessity of amending it more striking, when they are those of one so earnest for conciliation and peace. But on const.i.tutional not less than on other grounds, he p.r.o.nounces the strongest condemnation on the present formation of the Court of Appeal, which, working in a way which even its framers did not contemplate, has brought so much distress into the Church, and which yet, in defiance of principle, of consistency, and of the admission of its faultiness, is so recklessly maintained. Feeling and stating very strongly the evil sustained by the Church, from the suspension of her legislative powers,--"that loss of command over her work, and over the heart of the nation, which it has brought upon her,"--so strongly indeed that his words, coming from one familiar with the chances and hazards of a deliberative a.s.sembly, give new weight to the argument for the resumption of those powers,--feeling all this, he is ready to acquiesce in the measure beyond which the Bishops did not feel authorised to go, and which Mr. Gladstone regards as "representing the extremest point up to which the love of peace might properly carry the concessions of the Church":--

That which she is ent.i.tled in the spirit of the Const.i.tution 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 concessions, and reduce her demands to a _minimum_ at the outset.

Laws ecclesiastical by ecclesiastical judges, let this be her principle; it plants her on the ground of ancient times, of the Reformation, of our continuous history, of reason and of right.

The utmost moderation, in the application of the principle, let this he her temper, and then her case will be strong in the face of G.o.d and man, and, come what may, she will conquer.... If, my 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 Const.i.tution, 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 c.o.ke and Blackstone; you, and not they, will wield the weapons of const.i.tutional principle and law; you, and not they, will be ent.i.tled 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 Inst.i.tutes:--

"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 encroachments 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 deliberately refused to adopt a proposition so moderate, so guarded and restrained in the particular instance, and so sustained by history, by a.n.a.logy, and by common reason, in the case of the faith of the Church, and if no preferable measure be subst.i.tuted, it can only be in consequence of a latent intention that the voice of the Civil Power should be henceforward supreme in the determination of Christian doctrine.