Occasional Papers by R.W. Church

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OCCASIONAL PAPERS

SELECTED FROM
THE GUARDIAN, THE TIMES, AND THE SATURDAY REVIEW
1846-1890

By the late
R.W. CHURCH, M.A., D.C.L.
Sometime Rector of Whatley, Dean of St. Paul's,
Honorary Fellow of Oriel College

In Two Vols.--VOL. II

London
Macmillan and Co., Limited
New York: The Macmillan Company

1897

_First Edition February_ 1897
_Reprinted April_ 1897

CONTENTS

I MR. GLADSTONE ON THE ROYAL SUPREMACY

II JOYCE ON COURTS OF SPIRITUAL APPEAL

III PRIVY COUNCIL JUDGMENTS

IV SIR JOHN COLERIDGE ON THE PURCHAS CASE

V MR. GLADSTONE'S LETTER ON THE ENGLISH CHURCH

VI DISENDOWMENT

VII THE NEW COURT

VIII MOZLEY'S BAMPTON LECTURES

IX ECCE HOMO

X THE AUTHOR OF "ROBERT ELSMERE" ON A NEW REFORMATION

XI RENAN'S "VIE DE JESUS"

XII RENAN'S "LES APOTRES"

XIII RENAN'S HIBBERT LECTURES

XIV RENAN'S "SOUVENIRS D'ENFANCE"

XV LIFE OF FREDERICK ROBERTSON

XVI LIFE OF BARON BUNSEN

XVII COLERIDGE'S MEMOIR OF KEBLE

XVIII MAURICE'S THEOLOGICAL ESSAYS

XIX FREDERICK DENISON MAURICE

XX SIR RICHARD CHURCH

XXI DEATH OF BISHOP WILBERFORCE

XXII RETIREMENT OF THE PROVOST OF ORIEL

XXIII MARK PATTISON

XXIV PATTISON'S ESSAYS

XXV BISHOP FRAZER

XXVI NEWMAN'S "APOLOGIA"

XXVII DR. NEWMAN ON THE "EIRENICON"

XXVIII NEWMAN'S PAROCHIAL SERMONS

XXIX CARDINAL NEWMAN

XXX CARDINAL NEWMAN'S COURSE

XXXI CARDINAL NEWMAN'S NATURALNESS

XXXII LORD BLACHFORD

I

MR. GLADSTONE ON THE ROYAL SUPREMACY[1]

[1]
_Remarks on the Royal Supremacy, as it is Defined by Reason, History,
and the Constitution_. 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
circumstances 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 passing 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
anticipations of a mind at once deeply imbued with religious
philosophy, and also familiar with the consideration of constitutional
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 constitutional law.

The following passage 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 Constitution as expressed in them?

3. Is the Royal Supremacy, according to the Constitution, 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 assent 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
constitution 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 constitutional and political philosophy, against so narrow
and unreal an abuse of law-texts--documents 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 constitutional, of those famous statutes with the
titles 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 assertion 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 assertion 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 circumstances, 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 fictitious 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 abolishing 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 assent 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 assent 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
associated 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 assumed by those who have used
the word with most precision--_assumed_, 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 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 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
assume 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 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 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 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 _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 guardianship 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 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
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 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
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 associate 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 assured that the legal authority of the
King of England is absolute and irresistible ... that all are
under him, while he is under none but God....

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
constitution 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 analogy of the Constitution, 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
assumption, made in bitterness and vexation of spirit by some of those
who have lately so hastily given up her cause; made with singular
assurance 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.

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