Occasional Papers | Page 2

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,