Chapter 5. Relation of Convocation to the Crown

{406} THE third and last question I proposed to consider relative to the Convocation was as to the civil governor's de facto and de jure power over it; a large subject indeed, requiring a depth of thought and an accuracy of historical knowledge which cannot be expected in such papers as I am presenting to the reader. Asking then his indulgence for all defects in my mode of handling it, I will, in return, give him more in one respect than I engaged to do—viz., some account of the State's power over the English Church generally, not merely over the Convocation. To this undertaking I now address myself, and shall so bring my papers to an end.

1.

The King's power over the Church is popularly conveyed in the title "Head of the Church," which has become a familiar phrase. It is a title, however, unknown (as I believe) to the Law at present, having been assumed by Henry, but abandoned by Elizabeth. This would not be worth noticing, except that it is usual, with many persons, to assume it is of authority, and to proceed to deduce conclusions from it; for instance, "the King is head of the Church, and therefore he may alter the liturgy;" whereas it is but a generalized term, the sign and symbol of certain defined and specific prerogatives which belong to him, such as the power of appointing {407} bishops. It is not correct to say, "The King appoints the bishops because he is head of the Church;" rather, he is head of the Church because he appoints the bishops, etc. The simplest answer to such confused statements is to draw attention to the parallel supremacy of the King in civil matters. He is head of the State; yet no one dreams that he may therefore interfere with the constitutional rights of its separate members and functionaries.

With this caution, however, the title of Head will express the relation of the King to the Church, better, perhaps, than any other. The recognized constitutional title, and that which comes nearest to it, is "Supreme Governor;" but this, as we shall directly see, neither includes of necessity his appointment of the bishops, in which he commonly is said to act as the representative of the laity, nor his extensive church patronage, which is held on the same tenure with other patrons, though it is so great as to be virtually a constituent portion of his power. The very vagueness of the term Head is its recommendation.

I confine myself here, however, to the consideration of the supremacy, which is a supremacy of jurisdiction. The King is supposed to call the Church into being, that is, to develop that member of it existing in his own dominions, which is only in posse till he makes it actual; and, therefore, he claims to have authority over all its movements. In the 26 Henry VIII., the King is said to have "power to visit, repress, reform, order, etc., all such errors, heresies, abuses, etc., which by any manner of spiritual authority or jurisdiction ought to be visited;" and, in 37 Henry VIII., that ecclesiastical persons, such as archbishops, have "no manner of jurisdiction ecclesiastical, but by, under, and from him, to whom, by Holy Scripture, all authority and power is wholly given to {408} hear and determine all manner of causes ecclesiastical, and to correct vice and sin whatsoever."

This power is claimed in more accurate language in the instrument under which Cranmer exercised his episcopate in Edward's time, as given in Burnet's History. (Part ii., book 1, Records.) In this document, the King declares that "omnis juris dicendi auctoritas atque etiam jurisdictio omnimodo, tum illa quŠ ecclesiastica dicitur, quam sŠcularis, Ô regiÔ potestate, velut a supremo capite ac omnium magistratuum infra regnum nostrum fonte et scaturigine, primitus emanaverit."

2.

This being a general account of the Supremacy, let us consider it under the two heads of executive and juridical.

1. Executive; and here I shall confine myself to the King's acts from Henry's time to the accession of the Hanoverians, not, however, professing to do more than approximate to a complete list of them.

(1) Henry's first act of pure Supremacy was in 1536. In all that went before he had had the concurrence of the Convocations; but, at this time, Cromwell published injunctions about Religion in his name, Cranmer (as it is believed) being the writer of them. These enforced upon all incumbents the reading in church of a declaration against the Pope, and in behalf of the King's Supremacy, confirmed the Articles lately set forth by the Convocation, forbade the superstitious use of relics, etc., and gave sundry directions relative to education, charities, temporalities, etc. Shortly before this, Henry had given orders for the translation of the Bible, but this was at the petition of the Convocation. A more remarkable proceeding of the same year, though still with the sanction of the Convocation, {409} was his interfering in the drawing up and correction of the Articles of Religion, published at that time.

(2) Fresh injunctions were issued out in the King's name in 1538, calling upon the parochial clergy to provide their churches with the English Bible, to instruct their people in the true Gospel, to remove images which had been abused by superstition, to observe holydays and their eves according to the directions set forth, to omit the commemoration of St. Thomas of Canterbury, etc.

(3) In 1539, the King bade the House of Lords appoint a committee of Bishops for framing Articles of Religion. Eight were nominated in consequence, but could not agree. Upon this, six articles were proposed and carried in the House by the Duke of Norfolk, thence passed through the Commons, and lastly received the royal assent, without the Convocation being consulted in the matter, and the Archbishop voting in opposition.

(4) In 1540, a committee of divines was appointed by the King, and confirmed in Parliament, to draw up a declaration of the Christian faith, for the necessary erudition of a Christian man. Some time afterwards, the King prefixed to their Report, which took the shape of a book, a Declaration requiring all his people to read and impress upon their minds the doctrine contained in it. In the same year, another commission of Bishops was appointed to examine the rites and ceremonies of the Church, and to draw up a ritual of worship.

(5) In 1542, the examination of the English version of the Bible, which had begun in Convocation, was taken out of its hands by the King, and committed to the two Universities. And, in 1544, he gave orders for the translation of the prayers for processions and litanies into {410} English, and sent directions to Cranmer to see to its use all over his province.

(6) Edward the Sixth's reign commenced with a general ecclesiastical visitation, which, during its continuance, suspended all episcopal jurisdiction throughout England. The majority of the commissioners appointed were laymen. Homilies were drawn up and published for general use, and preachers attended the visitors on the same authority.

(7) In the second year of Edward, a committee of select Bishops and divines was appointed for reforming the sacred offices; and the result of their labours was passed through Parliament. And thus the Ordination Service was drawn up by a committee of Bishops and divines, named by the King, at the instance of an Act of Parliament. And several years after, a new Catechism was set forth for the use of schoolmasters by the King's letters patent.

(8) Elizabeth put forth injunctions, in 1559, on the subject of supremacy, superstition, simony, and the like. She also re-enacted the Book of Common Prayer, which, in Mary's reign, had been discarded; doing this without authority of Convocation.

(9) In the reign of James the First, the conference at Hampton Court, the order for the new translation of the Bible, and the proclamation about sports and recreations, were all acts of the King, without the formal sanction of the Church.

(10) Such, moreover, were Charles the First's directions to preachers about the Arminian points. And in the same spirit were that religious King's instructions to Archbishops Abbot and Laud, and Laud's annual report of his province, in consequence.

(11) Charles the Second, in 1661, granted a commission {411} to a number of Bishops and clergy to review the Book of Common Prayer, which was the occasion of the Savoy Conference. In the next year, he published his directions against seditious, predestinarian, and irregular sermons, and in behalf of the due observance of the Lord's day.

(12) William, in 1689, during Sancroft's suspension, addressed a letter to the Bishop of London, calling upon the Bishops to be careful in their examination of candidates for Orders, and exhorting the clergy to be diligent in their duties, and earnest in enforcing the social virtues. Several years after, he published injunctions concerning ordinations, residence, pluralities, public prayers, the Lord's day, etc., and, soon after, directions concerning preaching on the doctrine of the Trinity.

(13) Lastly, George the First published, like William, directions on the subject last mentioned, and in maintenance of the King's power.

(14) It should be added that the four State Services are imposed on authority of the King, not of the Church.

Now, before summing up the prerogatives contained in this list of precedents, I would observe that some of them have been actually superseded by subsequent precedents of an opposite nature; for instance, Articles of Religion, which were first imposed by Henry's command, were, in the reign of Elizabeth, regularly passed in Convocation. This was an acknowledgment of the Church's right, and of the informality of Henry's proceedings, while it is a final precedent, and settles the point, for all future times. Again, the liturgy, which, in Elizabeth's time, was imposed by Act of Parliament, was sanctioned in Convocation at the Restoration; which would not have been done, had not the Church's consent been necessary. In like manner, the Canons of 1603, passed in Convocation, take the place of the irregular State Injunctions of the {412} preceding century. And the High Commission Court, which was the organ of the most exceptionable exercise of the King's power—viz., that of Visitation independent of ecclesiastical functionaries, and even in the case of heresy, etc.—was abolished in Charles the Second's reign. As to the violent act of William, by which nine bishops, including the primate, were marked for deprivation, (a sentence which was executed on all who survived to endure it,) I have not noticed it, because it is evidently a mere part of the Revolution itself; which has always been confessedly considered to be an extreme case, and such as ought never to be cited as a precedent for future acts of usurpation.

The prerogatives which remain (even supposing the above acts valid as precedents) are as follows:—1. That of appointing commissions of divines for diverse purposes, for instance, translating scriptures, compiling a liturgy, and framing articles of faith; 2. Of sending directions to the clergy on the matter of their sermons, whether doctrinal or ecclesiastical; 3. Of appointing State prayers; 4. Of addressing the people, through the clergy, on various subjects; as, for instance, the royal Supremacy, education, charities, temporalities, ceremonies, and holydays. To these powers must be added, the most important prerogative, 5. Of appointing the Bishops; and thus the account of the executive power of the King over the Church will be complete.

3.

2. Next, as to his juridical power. It is this which is more formally called his Supremacy, consisting chiefly in his presidency in all spiritual courts, and his jurisdiction over Convocation. And here, in order to explain the province and limits of this prerogative, it will be {413} necessary to give some account of the principle on which the Supremacy over the Church is granted to him.

It is plain that, though our ecclesiastical system is based upon invisible sanctions, it can scarcely be realized in any country without permission from the civil power. The Apostles, indeed, to show their immediate commission from above, asked no earthly aid; and, indeed, because there was no chance of obtaining it, for St. Paul was not backward to avail himself of his existing privilege of Roman citizenship on fit occasions. It is certain all attempts to gain the civil power would have been unavailing, at first; and Christians were obliged, by gaining influence and credit in the world, to show that they were worthy of State protection, before they obtained it. As soon as the chance of recognition on the part of the State appeared, they were not slow to apply for it; and by the middle of the third century they had, on one occasion, employed the Roman power in the defence of their temporalities. This was, in a certain way, acknowledging the State's interference in Church matters; for such a patronage necessarily implied, as its practical correlative, a certain claim of jurisdiction. This, then, is the principle which was publicly avowed and established at the era of the Reformation—the duty of the Church to ask leave of the State (where it could obtain it) to perform its functions, and its protection by the State, and its subjection to the State, thence resulting.

The essential parts of the Church system are few; its elementary functions may be discharged this way or that, according to circumstances. The exact influence of the laity in elections, synods, etc., the form, times, and circumstances of synods, the size of dioceses, the character or the adoption of monastic institutions, {414} chapters, and the like, the celibacy or non-celibacy of the clergy—all these, being but developments of the essential Church element, may well vary according to the country in which that element is found. In other words, the State has practically the power of calling out into existence, this way or that way, the latent energies of the apostolical ministry; and so far forth as it does so call them out, so far as it recognizes, protects, privileges them by Law, in the same degree does it claim a jurisdiction and superintendence over its own work. Such, for instance, in England are the Spiritual Courts, in which the King presides; such, in a measure, is Convocation, over which he has kept his hand; such the temporalities of the Sees, which, converting the episcopate into "the high state of prelacy," may be supposed to give him the right of appointing the Bishops. The essence itself of the Church, the Apostolical element, as it may be called, is not in his power; the ministry of the Word and Sacraments is given to those only whom God especially calls. The developments, again, of this are not necessarily in his power. The Church may not choose to mould itself precisely after the State's design; while its institutions are unrecognized by Law, they remain apostolical, but as soon as it determines that they shall assume that particular mould to which the State has annexed protection and support, at once they become of a semi-civil nature, or what are commonly called (in the language of the Constitution) spiritual. To illustrate what I mean, the King has power over the Convocation, which is a "spiritual" court and assembly; I conceive he has none over the provincial or diocesan Synod, as being (I suppose) an institution unknown to the Law. Were the Archbishop to hold a metropolitan Council, its decisions indeed would not possess the sanction of civil {415} authority, but at the same time the civil power would have no jurisdiction over it. This, at least, will do to illustrate an important distinction. The King has jurisdiction over the Church only so far as he may be supposed to have called its system into existence and actually sustains it.

And if he has a recognized influence upon it, considered merely as the magistrate well disposed towards it, much more really is he its governor, considered as a Christian prince. In this light he is the father of his subjects, a natural priest ordained of God; and, as the head of a family is bound to superintend the instruction of his children and servants, so the King has a sort of patriarchal power over the Bishops and clergy. This power is beautifully illustrated in those reports of Laud to King Charles, with the latter's notes upon them, of which I have already spoken; and it will justify, in some sort, many of those injunctions, directions, and the like, of Henry, Elizabeth, or William,—which most nearly resemble encroachments upon proper Church authority. But, after all, the distinction above drawn between apostolical and mere "spiritual" or "ecclesiastical" functions holds throughout.

4.

Our history sanctions this view of the subject, which I have deduced from the nature of the case; as I now proceed to show:—

In the first place, I refer to the very instrument above spoken of, in which Edward claims ecclesiastical jurisdiction; for it explicitly professes, at the same time, to bestow on Cranmer something additional to his apostolical power, "per [prŠter] et ultra ea quŠ tibi ex sacris literis divinitus commissa esse dignoscuntur." To the same purpose is the "Declaration made of the function {416} and divine institution of Bishops and Priests" (Burnet's History, part 1, addenda v.), subscribed by Cromwell, Henry's minister in ecclesiastical matters, by Cranmer, the Archbishop of York, eleven other bishops, and others, in which the power of the keys and other Church functions are formally separated from the civil jurisdiction, that is, the apostolical from the spiritual power; and such also the judgment of eight bishops, of whom Cranmer is the first, concerning the King's Supremacy (Record x.), in which it is asserted that the Church's commission is founded, not on princes' power, but on the Word of God, while they confess that that divine commission does not impart civil power over princes, or make the Church independent of them in civil matters, but that she is in the same position towards the State as Christ was on earth, a subject yet with supernatural powers. In further explanation, it may be observed, that Bonner took out the same commission for his bishopric from Henry as Cranmer did from Edward, clearly showing (from the concession of a Romanist) that it was merely a commission for exercising jurisdiction, parallel to the license which the dissenter, at this day, purchases to exercise the privilege of preaching.

Further, the nature of the King's Supremacy is explained in our 37th Article, (which, be it observed, is part of an Act of Parliament,) in a sense quite accordant to that which I have been unfolding, viz.—"that only prerogative which we see to have been given always to all godly princes in holy scripture by God Himself,"—viz., to rule all estates of men, and to use the civil sword. It is plain, from this account of the Supremacy, 1, that it has no reference to the apostolical powers of the Church; for no one pretends, with the instances of Uzziah and Jeroboam before us, that the Jewish kings had right of {417} interfering with the priesthood; 2, it is only granted to "godly," that is, Christian princes, though Henry, indeed, seemed to make it inherent in the kingly office. There can be no doubt, then, that the oath of Supremacy, in which we swear that the King is "supreme governor, as well in all spiritual or ecclesiastical things or causes as temporal," must be interrupted by this 37th Article, that is, as having no reference to our apostolical rights and powers.

But the history of the beginning of Elizabeth's reign puts this matter in a still clearer light. The Act of Henry VIII., in which the title of "supreme head of the Church" was given to the sovereign, and which had been repealed by Mary, was not revived; "supreme governor" being substituted for it, in the enactment of that oath which is observed to this day. "This was done," says Burnet (part 2, book iii.), "to mitigate the opposition of the popish party; but, besides, the Queen herself had a scruple about it." Leslie, who refers to this passage, adds, (Case of the Regale, p. 9,) "the same bishop in his travels, letter 1. from Zurich, quotes a letter of Bishop Jewel's to Bullinger, dated May 22, 1559, wherein he writes 'that the Queen refused to be called Head of the Church,' and adds, 'that that title could not be justly given to any mortal.'"

Moreover, it will be observed, that the 37th Article refers to Elizabeth's Injunctions in explanation of its meaning. These clearly set before us the drift of the doctrine of the Supremacy, as it has been held in law ever since Elizabeth's time, whatever extravagant and impious notions Henry may at any time have entertained about it—viz., to secure the kingdom against foreign interference, not to restrain home apostolical authority. "Then followed,"—I quote from Burnet, (part 2, book iii.)—an explanation of the oath of Supremacy, in which the {418} Queen declared that she did not pretend to any authority for the ministering divine service in the Church, and that all that she challenged was, that which had at all times belonged to the imperial Crown of England, that she had the sovereignity and rule over all manner of persons under God, so that no foreign power had any rule over them." Indeed, this comment upon the sense of the words is inserted in the latter part of the oath itself.

"Primate Usher," says Leslie, "gave the same explanation of it, in a speech at the council-table at Dublin, upon occasion of some magistrates there, who refused the said oath; and King James sent him a letter of thanks and approbation of his speech, both which are in print. And none of our succeeding kings or parliaments have given any other explanation of it, or required that it should be taken in any other sense, but all along refer to these." Gibson might be quoted to the same effect. And, lastly, this is, in the main, Burnet's view, who cannot be accused of allowing too much independence to the Church. In a controversial pamphlet on the subject of our Reformation, which he published in Holland, in 1688, he says—"It is a very unreasonable thing to urge some general expressions," (alluding to the preambles introduced into some of the parliamentary Acts of Henry,) "or some stretches of the royal Supremacy, and not to consider that more strict explanation that was made of it, both in King Henry the Eighth's time and under Queen Elizabeth ... In King Henry's time, the extent of the King's Supremacy was defined in the Necessary Erudition of a Christian man, that was set forth as the standard of the doctrine of the time; and it was upon this that all people were obliged to take their measures, not upon some expressions, either in Acts of Parliament or Acts of Convocation, nor upon some stretches of the King's jurisdiction. {419} In this, then, it is plainly said, that with relation to the clergy the King is 'to oversee them, and cause that they execute their pastoral office truly and faithfully, and especially in those points which by Christ and His Apostles were committed to them.'" This is that patriarchal power which I have spoken of. "And to this it is added, 'that Bishops and priests are bound to obey all the King's laws, not being contrary to the laws of God.' ... The other reserve is also made of 'all that authority which was committed by Christ and His Apostles to the Bishops and priests.' And we are not ashamed to own it freely, that we see no other reserves upon our obedience to the King besides these. So that, these being here specified, there was an unexceptionable declaration made of the extent of the King's Supremacy. Yet, because the term 'Head of the Church' had something in it that seemed harsh, there was yet a more express declaration made of this matter under Queen Elizabeth ... This explanation," [that is, that which is in our Articles,] "must be considered as the true measure of the king's Supremacy; and the wide expressions in the former laws must be understood to be restrained by this, since posterior laws derogate from those that were first made ... This is all that supremacy which we are bound in conscience to own; and if the letter of the law, or the stretches of that in the administration of it, have carried this further, we are not at all concerned in it. But in case any such thing were made out, it could amount to no more than this, that the civil power had made some encroachments on ecclesiastical authority; but, the submitting to an oppression, and bearing it till some better times may deliver us from it, is no argument against our church; on the contrary, it is a proof of our temper and patience," etc. {420}

5.

To conclude; it would seem, on the whole, that the Royal Supremacy may be viewed under the following aspects:—

1. As the prerogative of governing the Church externally, that is, ruling all the members of it in civil matters, claiming their obedience, to the exclusion of all foreign jurisdiction; and this is the prerogative of every government, as such, whether heathen or Christian. Vide Canon 1, of 1603.

2. A prerogative of interfering in Church matters, "in ecclesiastical causes," appointing functionaries, directing usages, providing liturgies, etc.,—which is only exercised by the King as Christian, and exercised on two grounds, first, because he allows the Church's jurisdiction in his kingdom, and creates "prelacy," authoritative courts, and the like; and next, because, by his patriarchal power, he has a claim upon the confidence and devotion of the Church. Vide Canon 2, of 1603; agreeably to which is the judgment of the Eight Bishops already referred to, which declares, that "in case the Bishops be negligent, it is the Christian prince's office to see them do their duty."

3. The King has not the power (1) of bestowing the ministerial commission, as is plain from Henry and Edward's words, in granting license to Bonner and Cranmer, "ultra ea quŠ tibi divinitus," etc.; (2) of ministering the sacraments, vide Art. 37; (3) of excommunicating, vide the Declaration subscribed by Cromwell; (4) of ministering the Word, (in which, of course, the making Articles, etc., is included,) vide Art. 37.

4. There are a number of details in which the extent of the Supremacy is undetermined—for instance, the King's power of depriving bishops, of creating or destroying {421} bishoprics, etc. Judge Hales, indeed, places all these matters absolutely in the Crown; "the prescribing who shall be a bishop, the extent of his diocese, the circumscription of him, under pain of contempt, to act his powers of order within those limits." But here the instances, which Hales gives, impair his rule, for the prescribing who shall be bishop is not "inherent in the Crown," inasmuch as the Chapter has the right of election. And this, indeed, may be observed generally, that in these details of jurisdiction the Church has, for the most part, a concurrent voice, even where the Crown has the initiative. Thus the Chapter must elect, when the King recommends to a bishopric; the Bishop must institute to a living; and so of induction, confirmation, installation, etc. I mean that, letting alone the apostolical powers of the Church, Ordination, etc., even in (so called) ecclesiastical or spiritual matters, that is, in those peculiar institutions which, in the words of the Ordination Service, "this Church and realm has received," the Church has a concurrence in the acts of jurisdiction exercised by the civil power. And this consideration throws some light on the state of the law in such cases of jurisdiction as are not clearly determined by the letter of it, for instance, the union of dioceses.

Lastly, I have no wish to contend that the existing state of the law is, in every part, as consistent as the theory of it is just. For instance, the power of excommunication lies in the Spiritual Courts, of which the King is the head; which is as great an anomaly as though he was invested with the power of Ordination. Warburton, indeed, defends it; but he seems to have made his theory with a view to fit on to the existing state of our law, not upon any religious and philosophical basis.

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