Occasional Papers | Page 5

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