Occasional Papers | Page 4

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,