Occasional Papers | Page 3

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