Part 1 (2/2)

... 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.

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