Part 1 (1/2)
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?