Project Canterbury

NOT LAW,

BUT
UNCONSTITUTIONAL
TYRANNY.

OF

BY

LONDON
T. HAYES, HENRIETTA STREET, COVENT GARDEN.
BIRMINGHAM: ALEXANDER DAY, NEW STREET.
BRIGHTON: H. AND C. TREACHER, ROYAL LIBRARY.
1877

transcribed by David and Norma Sharp
AD 2001

If the line of argument of this Lecture can be refuted, let it be done.

If its positions are indisputable, then it is clear who are the true Constitutionalists, and who the "lawless" disturbers of the ancient constitution in Church and state.

A small body of Churchmen at the present time are the target at which the shafts of all sects and parties, degrees and persuasions, are being directed from all sides at one and the same moment. Whatever else the Quarterly, and the Edinburgh, the Pall Mall, and the Spectator, the Times, Daily News, Telegraph, Standard, Guardian, Nonconformist, and other London papers, backed up by nearly the whole provincial press, may not agree about, upon this they are all agreed – to have a good hearty fling at the so-called "Ritualists." Little concord as there may be between Roman Catholics, Presbyterians, Baptists, Independents, Wesleyans, Evangelicals, Unitarians, and the other two hundred denominations, upon this one point they cordially shake hands – the effort to put down "Ritualism."

Now what is all this valiant attack about? Why (1), partly, no doubt, because the Ritualists, so-called, witness to certain Catholic doctrines and practices which those various denominations – because they dislike them – will not acknowledge to be part of the heritage of the Catholic Church of England, although that they are so has been proved over and over again to the satisfaction of all but that prejudiced section of humanity which never will acknowledge the truth of what it does not like. Were there no other proof that Lights, Vestments, Eastward-position, Mixed Chalice, Confession, and many other things, have been retained by the Reformation, it would be sufficient to point to the fact that they were one and all, of set purpose, retained by the Church at the last Revision in 1662, which Revision was the last development of the Reformation. To endeavour to put them down, therefore, is so far to endeavour to undo the work of the Reformation. That moment in its earlier stages – say at the time of the 2nd Prayer Book of Edward VI – was in the condition of a half-finished house. The roof and the finishing touches were not put to it till 1662. But all the main points now in public discussion were then openly and avowedly retained. This is clear not only from the terms of the Prayer Book itself, but also from the discussions which took place at the time at the Savoy Conference, and from the declarations of the Bishops and Divines who made the Settlement. To attack these things, then, is, I repeat, to endeavour to undo the work of the Reformation. But the present disturbance is (2) very especially because the contest has at last come to be, not merely between Ritualists and non-Ritualists –between a slovenly service and a careful one- but between the authority of the Church acting within her own province, and the authority of the State having stepped beyond its rightful office and authority into its own hands. In a word, the contest has now come to be clearly and unmistakably a trial of strength – as regards spiritual authority – between the Church and the world. The world represented by the State, is jealous of even the Church’s rightful spiritual authority, has taken it from her so far as it can, and will not let her have it back again unless compelled. True, the State is not altogether the blame in the matter. The chief delinquents are the Puritans. "The Ritualists" have, through sheer hard work, become, under God’s blessing, so powerful in the country – have built so many churches, schools, sisterhoods, &c., have thrown so much devotion into the formerly cold services of the Church; have got so vast and so rapidly increasing a body of adherents, that the Puritan party has taken fright, and having been worsted before the law courts in an undefended suit in the matter of Doctrine, is now trying what can be done to injure "the Ritualists" through their Ritual. To this end the Puritan party, which dare not appeal to the Church to declare what is her true and rightful Ritual, has appealed to the State by force to put down that Ritual. Consequently, all sound Churchmen are gradually, but unmistakably rallying to the support of the Church’s rightful spiritual authority in the matter. This is the issue to be determined. In reference to it we must take out stand either with the Church, or the world which has come to the assistance of the Puritan party. It is to help you to a right conclusion on this matter that I have proposed to deliver this lecture this evening.

"Not ‘law,’ but unconstitutional tyranny." Such is the subject of my lecture. What certain persons at the present time are loudly calling "Law" we maintain is nothing less than unconstitutional tyranny. By law to be meant constitutional law- the true law of this Church and Realm – this constitutional and limited monarchy. Such a law as the Public Worship Regulation Act might suit very well a country where the king is an irresponsible and tyrannical emperor. But in England, where the parties concerned have a lawful voice in all legislation according to the recognised laws of the constitution, such an Act amounts simply to a breach of the constitution, in that the parties concerned have not been consulted in the matter, or rather the Act has been ostentatiously and exultingly passed amid loud cheers in the face of their earnest and strenuous protests. This is treatment to which no secular body of men would submit for an hour, say the medical, or the military, or the legal professions, and if such Churchmen as are worthy of the name have at last been driven to desperation under such treatment it is not to be wondered at – in fact, it was only to have been expected by all Englishmen possessed of ordinary English common sense and appreciation of right and wrong, justice and injustice. The Crown once tyrannised over the Temporalty; but the Temporalty at length asserted its constitutional rights. We must do the same. The Temporalty (the State) having forcibly got back its constitutional rights from the Crown in trampling on the constitutional rights of the Spiritualty (the Church). The Crown, acting through the Lords and Commons, claims now to have the right to legislate by its sole authority for the Church of England, and to adjudicate its spiritual causes by any Courts and by any judges it may see fit to set up and appoint. Witness, as regards legislation, the Public Worship Regulations Act passed by the sole authority of the Crown acting through the Houses of Lords and Commons. Witness, as regards judicature, Lord Penzance’s sham Ecclesiastical Court, and the Judicial Committee sitting in appeal upon spiritual causes. The Church, represented by her Convocations, and by her own Spiritual Courts and Ecclesiastical judges, has been simply elbowed out of the whole matter, and her protests against such treatment publicly laughed at in the Houses of Lords and Commons, by the Times newspaper, and by nearly every organ of ordinary public civil opinion. This is simply a plain breach of the true historical, and legal relations between Church and State as agreed to by the Church, and established by Acts of Parliament, some 300 years ago.

It is true that "a sect of Erastians very dangerous to Christianity, as immediately denying any ordinance of God for the visible unity of His Church" – as the eminent Thorndyke describes them – a sect amongst whom we must henceforward, by his own showing, number the present Bishop of Lincoln [1] – vehemently asserts that because the English Church is Established, or, in other words, in union with the State, she is bound to submit to whatever the State, mero motu, thinks fit todecree for her, even in purely spiritual matters, whether she assents to it or not. Such persons affirm – [see again the Bishop’s letter] – that the 37th Article declares, upon the part of the Church, the lawfulness of such claim. But never was a more unwarrantable assertion put forward. The Crown, by the Reformation settlement,and for long after, never claimed, and the Church has never allowed, anything of the kind. What, as Mr. Gladstone says, has been wrested from the Church by main force she is not responsible for, and is nothing to the point. "Holding, then, by the proposition," are Mr. Gladstone’s words –"that the Church cannot be made responsible for glosses put upon the law to her prejudice, and for the professional traditions which may influence the Courts, but of which she cannot minutely follow the rise, and against which she has no means of contending till a crisis is brought about; but that she is properly and morally responsible only for those statutes in their plain meaning which she has formally accepted, or else made her own by evident, general, and continued acquiescence." [2] The clergy in the reign of Henry VIII., by their celebrated Act of Submission, bound themselves not to meet in Convocation without the king’s license; and having met with the king’s license, not to promulgate canons without the Royal assent. This Act is much to be regretted. But, until repeated, it must be upheld by all true constitutionalists, and happily it was the utmost extent to which the submission of the clergy extended. Be it observed that the Convocation did not promise in any way to submit to the decrees of the Lords and Commons. Indeed, the Convocation is annexed to Parliament, and so forms, in a sense, a part of Parliament. It is the spiritualside of Parliament, and assemblies by summons of the two Archbishops at the same time. The bishops do not sit in the House of Lords in their spiritual capacity as representing the Church, but as barons of the realm. It need hardly be added that the Church by her Convocation never assented in HenryVIII’s reign to be absolutely and entirely elbowed out of all care of her own affairs – to be deprived of any, even the least, voice in matters relating to spiritual legislation and judicature in spiritual causes. The theory of the constitution is that Convocation legislates for spiritual matters and Parliament for temporal. under the authority of the Crown, the assent of the Crown, Lords and Commons to the action of Convocation in spiritual matters being necessary that it may become the law of "this Church and Realm," – without such assent it would only be the law of "this Church." There is, however, this very important distinction clearly recognised by the statutes of the Reformation, that whereas the source of temporal legislation lies, under God, in the Crown; on the other hand, the source of spiritual legislation lies, under God, in the Church, represented in her spiritual representative assemblies, whether they be termed Synods or Convocations. The king puts forth an Act of Parliament with the assent of Parliament. The Convocation promulgates a canon with the assent of the Crown.

That this is the (Constitutional) law of "this Church and Realm" [3] – the true law of Church and State, in this matter, is clear from numerous authorities. The preamble of 24 Hen. VIII., c.12 – the principal statute of the realm dealing with this matter, and which is the law still, declares and endorses the previous common law on this matter. There we read: - "this realm of England is an Empire governed by one Supreme Head and King, unto whom a body politic, divided in terms and by names of Spiritualty and Temporality, is bounded to bear, next to God, a natural and humble obedience. The body Spiritual whereof having power when any cause of the Law Divine happened to come in question, or of spiritual learning, then it was declared, interpreted, and shewed, by that part of the said body politic called the Spiritualty, now being usually called the English Church, which hath been always thought, and is also at this hour, sufficient and meet of itself, without the intermeddling of any exterior person or persons, to declare and determine all such doubts, and to administer all such offices and duties, as to their rooms spiritual doth appertain. And the law Temporal, for trial of property, &c., was and yet is administered, adjudged, and executed by sundry judges and ministers of the other part of the said body politic, called the Temporalty. And both their authority and jurisdictions do conjoin together in the administration of justice, the one to help the other." Here, amongst other points, it is declared by law – (1). That this realm of England is an empire governed by one supreme head and king. (2). That this realm of England consists of the Spiritualty, or the English Church, and the Temporalty, or the State. (3). That (a) the Spiritualty, now being usually called the English Church, is the part of the body politic to declare [i.e. interpret] and determine all doubts, and to administer all matters relating to the Law Divine and spiritual learning, and that for such offices it is at this hour sufficient and meet of itself, without the intermeddling of any exterior person or persons (as, for instance, the Lords and Commons). Similarly that (b), the Temporalty is the other part of the body politic which is to try questions of property, &c. (4). That these two parts of the body politic must conjoin together, the one to help the other, if the due administration of justice is to be had. It follows, from the above principles of the common law, that as these two parts of the body politic do not now conjoin together, the one to help the other, but, on the contrary, the one part, the Spiritualty, has been thrust by the other, the Temporalty, out of its own proper part in the government of the realm – the constitution, as witnessed to by this Act, has been broken through, and that for us Churchmen "the administration of justice" cannot be had – or, in other words, that we are not now being governed by constitutional law, but by unconstitutional tyranny. Again, the 39Articles are part of the constitutional law, and in the Royal Declaration prefixed to them the king says: - "We are supreme governor of the Church of England, and if any difference arise about the external policy, concerning the Injunctions, Canons, and other constitutions whatsoever thereto belonging, the clergy in their Convocation is to order and settle them, having first obtained leave under our broad seal so to do; and we approving their said ordinances and constitutions, providing that none be made contrary to the laws and customs of the land. That out of our princely care, that the Churchmen may do the work which is proper unto them, the bishops and clergy, from time to time in Convocation, upon their humble desire, shall have license under our broad seal to deliberate of and to do all such things as, being made plain by them and assented unto by us, shall concern the settled continuance of the Doctrine and Discipline of the Church of England now established, from which we will not endure any varying or departing in the least degree." Note in these last words the crown promising to use "the civil sword" in support of the Church’s rightful authority in spiritual matters. Thus the Crown of England endorses the 24 Henry VIII., c. 12 and expressly reserves to Convocation the right and duty "to deliberate of and to do all such things as ……..concern the settled continuance of the Doctrine and Discipline of the Church of England." Again, the 20th Article declares – "The Church hath power to decree rites or ceremonies, and authority in controversies of faith." Again, the 37th Article declares – "The Queen’s Majesty hath the chief power in this Realm of England, and other her dominions, unto whom the chief government of all estates of this realm, whether they be ecclesiastical or civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign jurisdiction. Where we attribute to the Queen’s Majesty the chief government, by which titles we understand the minds of slanderous folks to be offended; we give not to our princes the ministering either of God’s Word or of the Sacraments, the which thing the Injunctions also lately set forth by Elizabeth our Queen do most plainly testify; but that only prerogative, which we see to have been given always to all godly princes in Holy Scriptures by God Himself; that is, that they should rule all estates and degrees committed to their charge by God, whether they be ecclesiastical or temporal, and restrain with the civil sword the stubborn and evildoers. The Bishop of Rome hath no jurisdiction in this realm of England" As the "sect of Erastian" think this Article to be in their favour, let it be noted (1) that it was not the king – but the archbishops and bishops and clergy in Convocation who wrote this Article. Can we imagine the bishops and clergy to have intended – and that without pressure being put upon them – to hand over all ecclesiastical jurisdiction of every kind and sort out of their own hands into the hands of the king? If the bishops would, the clergy would not. But this is what the Erastian interpreters of this Article would have us believe.

(2) His Majesty in his Declaration prefixed to the Thirty-nine Articles, echoes the legal view of the matter set forth in the preamble of 24 Hen. VIII., c.12 – that it is the Spiritualty in their Convocation, that is, to deliberate of and "declare"[i.e.,interpret] and "order" and "determine" and "settle" all "doubts" in "any cause of the law divine or of spiritual learning," whether they have to do with "the Injunctions, Canons, Constitutions, Ordinances," or other documents relating to the Doctrine and Discipline of the Church of England. this the King declares to be "the work which is proper unto" the Convocation. He explicitly disclaims for himself any such province or authority. As for the Lords and Commons, they are not even mentioned in the matter. (3) The first paragraph of the Article asserts for the Crown the chief government of all estates of this realm in all causes – plainly as it specifies, in denial of the right of any foreign jurisdiction, that is, the unsurped power of the Pope. Compare with the first the third paragraph- "The Bishop of Rome hath no jurisdiction in this realm of England." The intention of the Article, as will be more plainly seen presently, is to assert, as against the Pope, the ancient immemorial rights of the Crown in its own dominions, not to wind the chains of Erastianism round the neck of the Church. If the Pope’s claims in the matter of jurisdiction are true, then the Article is false, not otherwise. (4) To assert for the Crown or State the right, as Erastians do now-a-days, to decree what Doctrines are to be taught, what Ritual used, and what Discipline employed, is to assert to the fullest extent the right to minister God’s Word and Sacraments. Who more fully than the Councils and Courts of the Church have ministered God’s Word? But the Article expressly denies the Crown’s right by its Privy Council or otherwise, to in any degree or way minister God’s Word or Sacraments. (5) The Article asserts that the jurisdiction of the Crown allowed by its terms, over all estates of the realm and all causes, is that only prerogative given always to all godly Princes in Holy Scriptures by God Himself. But when the Crown, or State, overstep the limits of their proper jurisdiction in spiritual matters, the Divine command is, "Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s." [4] Under such circumstances, the Apostles exclaimed, "We ought to obey God rather than men." "Whether it be right in the sight of God to hearken unto you more than unto God, judge ye." Under such circumstances the Apostles themselves went "contrary to the law." Their "lawlessness" was the Divine law in the matter. (6) The Article appeals for its true interpretation to "The Injunctions of Elizabeth," which it declares to be "most plain" upon the point. And so they are. Hear them: - "Certainly Her Majesty neither doth nor will challenge any authority than that was challenged and lately used by the said noble Kings of famous memory, King Henry VIII., and Edward VI., which is, and was of ancient time, due to the Imperial Crown of this realm: that is, under God, to have the sovereignty and rule over all manner of persons born within these her realms, dominions, and countries, of what estate either ecclesiastical or temporal, so ever they be, so as no other foreign Power shall or ought to have any superiority over them. And if any person that hath conceived any other sense of the form of the said oath shall accept the same oath with this interpretation, sense, or meaning, Her Majesty is well pleased to accept every such in that behalf as her good and obedient subjects." [5] You see the Injunctions claim for the Crown only the jurisdiction it had of ancient time – say in the reign of Edward III. So no change was made in this by the Reformation. The Article, by referring to the Injunction, makes that Injunction part of itself – that is, makes it constitutional law. But besides this, the Injunction was made statute law by 5 Eliz., c. 1. sec.14. In that Injunction, as we have seen, the Crown claims only the authority which was of ancient time due to the Imperial Crown of this realm. But will anyone assert that such intolerable Regal and State tyranny as Churchmen are now groaning under, was ever of ancient time thought to be due to the Crown of this realm? Why the mere asking of the question is calculated to raise a smile. (7) The Article declares the interpretation lately put upon it by the Bishop of Lincoln – which Thorndyke says is that held by "a sect of Erastians very dangerous to Christianity" – is "slanderous," and that those who put it forward are "slanderous folks." We have hereby, then, given further, and had we no more, sufficient proof of the truth of our thesis – that, as Churchmen, we are now governed, not by constitutional law, but by unconstitutional tyranny. Mr. Froude [6] gives a State paper containing an address of Queen Elizabeth to her subjects, in which she say: - "That she had neither claimed nor exerted any other authority in the Church than had attached from immemorial time to the English Crown, although that authority had been recognised with greater or less distinctness at different times. The Crown challenged no superiority to define, decide, or determine, any Article or point of the Christian faith or religion, or to change any rite or ceremony before received and observed in the Catholic Church. The Royal supremacy in matters spiritual means no more than this – that she, being by lawful succession Queen of England, all persons born in the realm were subjects to her, and to no other earthly ruler. She was bound in duty to provide that and to no other earthly ruler. She was bound in duty to provide that her people should live in the faith, obedience, and observance of the Christian religion; that consequently there should be a Church orderly governed and established, and that the ecclesiastical ministers should be supported by the civil powers, [7] that her subjects might live in the fear of God to the salvation of their souls." This State paper states still more explicitly the positions of the Injunction. It is a clear contemporanea expositio. Canons 1,2,3,6, of 1603-4, to which the Bishop of Lincoln has referred in his letter to Canon Hole, set forth exactly the same as the constitutional law of this Church and realm. Canon 1, for instance, asserts that "all singular laws and Statutes" on the question "have been made for restoring to the Crown of this kingdom the ancient jurisdiction over the State ecclesiastical and abolishing of all foreign power repugnant to the same." On May 22^nd, 1572, Queen Elizabeth sent the following message to the Commons: - "Her Majesty’s pleasure is that from henceforth no bills concerning religion shall be preferred or received into this House, unless the same should be first considered of and liked by the clergy." [8] This was hardly the course pursued in the case of the Public Worship Regulation Bill! Again, in 1593, Queen Elizabeth sent the following message: - "Wherefore, Mr. Speaker, Her Majesty’s pleasure is that if you perceive any idle heads which will meddle with reforming the Church, and transforming the Commonwealth, and do exhibit any bills to such purpose, that you receive them not until they be viewed and considered of those who it is fitter should consider of such things, and can better judge of them." This was hardly the course pursued in the case of the Public Worship Regulation Bill! Well for peace if it had been! James I, writing in explanation of the Oath of Supremacy, says:- "I never did nor will presume to create any article of faith, or to be judge there of, but to submit my exemplary obedience to them [i.e., the hierarchy] in as great humility as the meanest of the land." [9] A State paper of the time of James I., declares of the Prayer-book as restored in the first year of Elizabeth – "Not that the book was ever subjected to the censure of the Parliament, but being agreed upon and published as aforesaid, a law was made by the Parliament for the inflicting of a penalty upon all such as should refuse to use and observe the same. Further authority thereto is not in the Parliament, neither hath been in former times yielded to the Parliament in things of that nature, but the judgement and determination thereof hath ever been in the Church thereto authorised by the King, which is that which is yielded to Henry VIII., in the statute of 25 his reign" [10] – that is, the statute which recites and legalises the Act of Submission of the clergy. Here, again, the old common law is declared, and the authority of the secular Parliament in spiritual matters emphatically denied. In 1689, when the Bill of comprehension was before the Commons, a joint address of both Lords and Commons was presented to the Crown, praying that – "According to the ancient practice and usage of this kingdom in time of Parliament, His Majesty would be graciously pleased to issue forth his writs as soon as conveniently might be, for calling a Convocation of the clergy of this kingdom, to be advised with in Ecclesiastical matters." [11] In Queen Anne’s reign, in the year 1711, Whiston’s writings being generally suspected of heresy, the jurisdiction of Convocation as a Court for the trial of heresy was asserted by the twelve judges and the law officers of the Crown; and all of these except four judges considered this to be a jurisdiction over the persons as well as over the tenets of the offenders ; and Whiston’s writings were condemned accordingly by the Convocation. [12] Hooker says: - "The Parliament of England, with the Convocation annexed thereunto, is that whereupon the very essence of all government within this kingdom doth depend." [13] Thorndyke says – "The usurpation of temporal power by the Pope, upon the pretence of the pre-eminence of his Church in ecclesiastical matters, hath given this Crown just occasion to declare itself ‘supreme head or supreme governor, in all causes, and over all persons, as well ecclesiastical as civil.’ But the capacity of several senses in words that signify human matters seemeth to have produced out of this Act (I. Eliz., c. I) a sect of Erastians’ very dangerous to Christianity, as immediately denying any ordinance of God for the visible unity of His Church, which is an article of our Creed.

This capacity was restrained in the beginning of Queen Elizabeth’s reign, by her injunctions, by the Articles of Religion, by an Act of Parliament, not to signify the abolishing or the disclaiming of ecclesiastical power in part or in whole." [14] I commend this passage from Thorndyke to the special notice of the Bishop of Lincoln, who has misinterpreted the 37^th Article to mean that the clergy, by signing it, have bound themselves to teach and do whatever the Monarchy – unlimited by the statutes of the Constitution – may order them. Thorndyke declares anyone who says so to belong to "a sect of Eratians very dangerous to Christianity." And the 37^th Article itself declares such an one to be of the number of "slanderous folks." It was still worse of the Bishop to throw in our faces our ordination promise to "minister the Doctrine, Sacraments, and Discipline as this Church and Realm hath received the same." and to "teach the people committed to our cure and charge with all diligence to keep and observe the same." [15] When, I should like to know, did the Church endorse the rulings in spiritual matters of the Lords and Commons – or Lord Penzance, or the Judicial Committee – or any other merely secular legislative authority or court? The Bishop’s positions are as untenable as they are ungenerous in the face of the present grave difficulties of "the Ritualists." The Bishop is no more happy in his misquotations from Holy Scripture – when he quotes – as referring to obedience to kings in spiritual matters – texts which plainly have only to do with temporal matters. He has also entirely ignored the plain distinction which the Constitutional statutes of the kingdom – as we have seen – draw between the functions of the Spiritualty and Temporalty, each fulfilling its own proper duties and functions under the Crown – and argues throughout his letter as though the Crown and the Temporalty were the sole and only legislative or judicial authorities recognised by those statues. What he says about our "persecuting the Church" I pass by as ludicrous. Bishop Gibson, an eminent authority, says: - "When the laws relating to the Royal Supremacy, which were made in the reigns of Henry VIII., Edward VI., and Queen Elizabeth, say that all ecclesiastical authority is in the Crown, and derived from thence, or use any expressions of the like import, it is to be remembered that the principal intent of all such laws and expressions was to exclude the usurped power of the Pope, and that they must be interpreted consistently with that other authority, which our Constitution acknowledges to belong to every bishop by the Word of God." [16] Bishop Burnet, a "Low Churchman," as he would now be called, says: - "Our men of the mission have always made a great noise of the King’s Supremacy, as if it were the most absurd thing, without considering that as the supremacy is explained by the Articles, it is practised by almost all the States and Princes of Europe." [17] The present Bishop of Winchester says in his work on the 39 Articles: - "The documents which at present form the charter of union between Church and State evidently assign to the Sovereign no new functions. The principle enunciated by them is that the Sovereign is entitled to those ancient privileges which belonged (1) to devout Princes in Scripture: (2) to Christian Emperors in primitive times; (3) to the ancient Sovereigns of England before the times of Papal domination.…….

The supremacy of the Crown must not (according to our Constitution in Church and State) be considered as an arbitrary and unlimited supremacy. Everything in England is limited by law, and nothing more than the power of the Sovereign. In matters of State the power of the Crown is limited by the two Houses of Parliament; in the affairs of the Church it is limited also by the two Houses of Convocation. Legally and constitutionally the Sovereign, or the Sovereign’s Government, can do nothing concerning the state of the Church, her Doctrine and Discipline, without first consulting the clergy in Convocation." The Bishop alludes to the unconstitutional and utterly anomalous state of things which has for some time existed – so full of danger to the Commonwealth as it plainly is – with a Queen of Presbyterian sympathies legislation for the Church through Parliament only – and that a Parliament of all religions and of none – and adds: - "It is utterly vain to speculate on the future. We cannot question that the relation between Church and State is now widely different from that which once existed, and that it is fraught with new dangers." [18] Bishop Browne in his Commentary emphatically condemns the positions lately taken up by Bishop Wordsworth, of Lincoln. The late Bishop of Brechin, in his "Explanation of the 39 Articles," says: - "On a doctrinal subject doubt might, in a given case, he raised as to the force either of the theological terms used by the Church, or of those in which a clerk incriminated is alleged to have contravened them. In the former case, according to the 24^th Henry VIII., c. 12, it was clearly presupposed that the Spiritualty would define, "declare, interpret, and shew" such point of doctrine. Elizabeth expressly denied that the Crown had any such power. And yet this power is practically exercised by lawyers, by authority of the Crown…….This power, inspired by lawyers, exercised in the direction of the casting down of all dogmatic truth, threatens the existence of Christianity in England, and it remains to be seen what power can cope with it. If not resisted, there seems no guarantee for the preservation of any one distinctive doctrine of the Christian religion." [19] The eminent Judge, Baron Alderson, writing to a clergyman who had been disturbed by the interpretation put upon the Royal Supremacy by the "sect of Erastians," says, "If the true doctrine allowed by the English Church were that the Queen. . . . . had any power of science to obey them ……..proprio motu, I could not, I own, advise you to remain a minister of such a Church, nor do I think that I should myself consent to remain in its communion even as a layman, But I am sure, as sure as I can be of anything dependant on the examination of authorities and laws, that the Queen neither has nor claims any such right, according to the laws which govern the Church of England." He then goes on to expound the constitutional law on the question, exactly as I have set forth in this lecture. [20] The great lawyer and legal commentator, Lord Coke, was a high prerogative lawyer, and of Erastian tendencies. Whatever, therefore, can be proved from his mouth in the Church’s favour may be regarded as proved a fortiori. He sets forth in his commentaries upon the legal and constitutional relations of Church and State under the Crown these, among other principles, that the 24t^h Henry VIII, c. 12, is a great constitutional statute, distinctly marking out a province of ecclesiastical, and another province of civil causes. That the laws ecclesiastical are for the settlement of causes of the law divine and of spiritual learning. That the laws ecclesiastical are necessarily to be administered in ecclesiastical courts and by ecclesiastical judges. That "the archbishops, bishops, and their officers, deans, and other ministers which have spiritual jurisdiction," are the king’s judges for ecclesiastical purposes. That the Convocation of the clergy is a court of which "the jurisdiction is to deal with heresies and schisms, and other mere spiritual and ecclesiastical causes," and "therein they did proceed according to the law divine and the canons of Holy Church." That this was so before the Reformation, so that the Reformation Statutes on the matter only restore the King’s ancient jurisdiction by declaring and re-establishing the old common law, which the Pope had for a time partially set aside. The great lawyer and legal commentator, Blackstone, is strictly in accordance with Lord Coke on this matter. [21] Good reason, then, had Mr. Gladstone at the end of his learned and exhaustive essay – "Historical Remarks on the Royal Supremacy" – to say "We have arrived at a plain and gross violation of the principle recited in the preamble of the 24^th Henry VIII., that the Spiritualty, according to the constitution of the realm of England, administered the law spiritual, as the Temporalty administered the law temporal; the principle declared by Lord Coke, that the King administers his ecclesiastical laws by his ecclesiastical judges, a principle of most especial and vital application." Of "the present composition of the appellate tribunal," Mr. Gladstone declares that it is – "unreasonable, unconstitutional, and contrary to the spirit of the Reformation Statues." [22] I would remind you that its late reconstruction has not made the slightest difference in the principle of its composition. Had I time I could multiply these authorities a hundredfold. Let the above suffice.

There was no substantial and tangible interference with the spiritual rights of the Church before the accession of the House of Hanover, and the suppression of her legislative assembly – Convocation in the reign of George I. The question is a somewhat intricate one. But, on careful examination, it will be found that sundry Parliamentary enactment’s, before that period, commonly supposed to be legislation for the Church in spiritual matters by Parliament alone mero motu, dealt either with matters within the province of Parliament, or were really intended to be no more than civil support given to previous Canons and decrees of the Convocation. This Lecture cannot be expected to enter upon so wide an inquiry. Its object is once more to re-state the undoubted Constitutional aspect of the matter, as witnessed to by the common law and the statutes of the Reformation. Fundamental principles of the Constitution cannot be upset by exceptions to the contrary, even if historically sustainable.

Lord Penzance on Sunday last (January 13^th 1877), in sentencing Mr. Tooth to be delivered over to the tender mercies of the Queen in Chancery, to be imprisoned, begged the question that his Court of the Arches – the same Court as the old Court of the Archbishop of Canterbury. But he gave no proof of this; and he cannot prove it. (1) The old Court of Arches, if not destroyed by the Clergy Discipline Act, was, so far as an Act of Parliament could do so, swept away and replaced by the Court of Lord Penzance on the passing of the Public Worship Regulation Act. For (2) the Judge of the old Court was appointed by the Archbishop of Canterbury alone, and his appointment could not be interfered with in any way by the Crown. But the Judge of this new Court, by this Act of Parliament’s authority, cannot be appointed by either Archbishop singly as the judge of his provincial Court, should the other Archbishop not see fit to appoint him over his Court. He must be appointed to preside over both Provincial Courts, or not at all. He must be appointed by the two Archbishops conjointly, and is to be appointed by the Crown should the Archbishops fail to appoint a successor within six months after a vacancy. The sole authority of the Public Worship Regulation Act has thus converted two distinct Courts into one, and two distinct judges into one. So it is impossible for Lord Penzance to persuade anyone who understands the matter that he is not a different Judge in every way from the old Dean of the Arches. And no more successful was Lord Penzance in endeavouring to prove the lawfulness of his legal procedure. He quoted in his support (1) the trials at Assize, which, to use Lord Penzance’s own words "enforced obedience in matters of ritual" – that is, in the words of Article 37, "restrained with the civil sword the stubborn" resisters of ecclesiastical authority; in other words the Anabaptists of the day – a body, as regards Ritual, similar to the Puritans and "Evangelicals" of times later on. This supporting and enforcing the decrees of ecclesiastical authority is a somewhat different matter to elbowing the Church out of her proper province, and endeavouring to put down by the decrees of a civil Court the ritual which she has appointed and all along supported. Lord Penzance quoted (2) the unconstitutional arbitrary, and tyrannical legislation of later date which has revolutionized [or to use Queen Elizabeth’s term – "transformed"] ecclesiastical legal procedure, and which Mr. Gladstone says is "a gross violation" of the constitutional law. Lord Penzance, I repeat, has ignored the fact that Convocation, by recent legislation, has been violently elbowed out of its constitutional rights, and that legislation and legal procedure in spiritual matters under such circumstances is an outrage on the Church, which, to attempt to defend, is to seek to support outrage by deception.

The Bishop of Lincoln has just reminded us that "the Judicial Committee" has succeeded into the place of the Court of Delegates, which formerly adjudicated on certain cases of appeal in ecclesiastical causes, but which never adjudicated upon one single bon-fide case of heresy in the whole course of its history. To do this Lord Coke, Blackstone, &c., say is the province of Convocation. In reply I would quote to the Bishop of Lincoln Mr. Gladstone’s memorable words: - "If it be asked why did later times infuse more and more of the secular [that is non-ecclesiastical] element into the Court of Delegates?……….I answer…….that there is scarcely a single precedent of any kind set in the Church for a century after the accession of the House of Hanover [our present dynasty] which is good for any purpose but that of a warning; that (for religion) disastrous century in whose ecclesiastical archives, not yet nearly unrolled, every loathsome abuse ‘hides its dead eye from the detested day.’" "The House of Hanover!" Yes, as we live under it, we have to beware of disloyalty; but you have just heard Mr. Gladstone’s opinion of what you may expect from it in ecclesiastical and "religious" matters!

It will, then, have been clearly seen from the foregoing. – I. That, as constitutionalists, we are bound to uphold a constitutional exercise of the Royal supremacy. II. That the Crown has a constitutional voice in spiritual legislation and the administration of ecclesiastical law. III. That a constitutional exercise of supremacy involves, inter alia (1), the constitutional legislative rights of Convocation, as, under the Crown, the Church’s legislative organ of first instance; (2) that the Crown shall try spiritual persons, and determine and adjudge spiritual questions when they arise, in ecclesiastical Courts and by bona-fide ecclesiastical judges; and (3) that such supremacy must be exercised in harmony with the Convocation. IV. That, without the Church’s consent, the Crown has no more right, by constitutional law (1), to legislate for the Church in spiritual matters through the Lords and Commons alone that it would have to legislate for the State by Convocation alone; or (2) to judge spiritual persons and spiritual questions by merely civil judges, than it would have to judge statesmen and civil questions by ecclesiastical judges. V. That inasmuch as, confessedly (1), Convocation is no now permitted to have any real voice in ecclesiastical legislation (the Lords and Commons asserting their sole right in the matter), and as (2) it cannot be pretended that the Courts of Lord Penzance or of the Judicial Committee of her Majesty’s Privy Council are in any sense known to constitutional law, ecclesiastical Courts, or their members bona-fide ecclesiastical judges, the constitution, by such purely civil legislation for the Church and by the appointment of Civil Courts and judges to try and adjudicate upon spiritual questions, has been plainly and grossly violated, and the due and lawful limits of the Royal supremacy in spiritual matters have been manifestly transgressed ; and, therefore, VI. A stern resistance to the present unconstitutional and tyrannical exercise of the Royal supremacy in spiritual matters, and violation of the constitutional rights of the Church in its relation to the State, is the duty of all who care to preserve the verities of which the Church is the witness and keeper, and who believe the Church to be a Divine institution. I should add, VII. that there can be no satisfactory solution of the present difficulties until the Crown in the matter of Ecclesiastical Legislation and Judicature once more recognises the Constitutional rights of the Church as represented in Convocation, and proceeds in harmony with its counsel.

One word, finally. If we be asked, as we often are, to state what court or courts, and what judge or judges, would be constitutional? We answer – any court or courts and any judge or judges – having the sanction and good will of the Church, represented in her Synods or Convocations. Were the Crown once more to ordain that the Crown’s judges for ecclesiastical causes should be – for an accused presbyter or layman – (1) the Bishop of the Diocese, sitting in his Diocesan Synod, assisted by his Presbyters, - and especially those learned in Ecclesiastical Law – with (2) an appeal to the Provincial Synod or Convocation; - and for an accused Archbishop or Bishop – the Bishops of the Provincial Synod or Convocation – the Crown would have returned to the principles of the Constitution. To such spiritual courts and judges – or to any courts and judges having the bona fide sanction of the Church – all sound Churchmen would yield a glad and prompt obedience. But I need hardly add (though it would not be the reason of our obedience) such validly constituted courts, acting in their spiritual capacity, and in harmony with Convocation, would never, if any, that would suffer. And this, no doubt is why they are so vehemently opposed to such constitutional courts having their constitutional rights restored to them.

Catholic Churchmen have a wholesome dread of Bishops acting as mere tools of the civil power, or ruling by their mere private judgement. In the words of Hooker – "All decisions of things doubtful, and corrections of things amiss, are proceeded in by order of law, what person soever he be unto whom the administration of judgement belongeth. It is neither permitted unto Prelate nor Prince to judge and determine at their own discretion, but law hath prescribed what both shall do. What power the King hath, he hath it by law, the bounds and limits of it are known. …….If the cause be spiritual, secular courts do not meddle with it. We need not excuse ourselves with Ambrose, but boldly and lawfully we may refuse to answer before any civil judge in a matter which is not civil……….

Of this most certain we are, that our laws do neither suffer a spiritual court to entertain those causes which by law are civil, nor yet if the matter be indeed spiritual, a mere civil court to give judgement of it." [23]

We shall ever be found "following with a glad mind and will" the "godly admonitions, and submitting ourselves to" the "godly judgements" of Bishops legislating and adjudicating constitutionally; that is – "ministering the Discipline of Christ as this Church and Realm hath received the same" [24] Such action may look for the blessing and guidance of Him from Whom the Church’s true life and action springs.

BY THE SAME AUTHOR.

"Really learned and closely reasoned…….its well- marshalled arguments are powerful and conclusive." – Union Review.

"It is high time that such information as this should be popularized……. We hasten, therefore, to thank Mr. Enraght for what he has done in this direction in the present pamphlet. It is a clear, concise, and vigorous summary at once of the work, and of the meaning, of our last Prayer Book revisers, in reference to certain points now in dispute among us………It should be in everybody’s hands…"- Literary Churchman.

"Most useful…….for turning the tables upon our accusers, and opening the eyes of ‘aggrieved parishioners.’" – Church Review.

"Those who wish to see the disputed questions of the day on Church matters fairly and honestly submitted to the test of the Reformation, should read Rev. R.W. Enraght’s clever little Pamphlet, - "who are true Churchmen, and who are Conspirators?" – Church Times.

" A remarkably powerful pamphlet." – Literary Churchman

"A powerful and closely reasoned defence of the Catholic doctrine against modern Neologian thought." – Union Review.

"A masterly exposition of the texts which more directly relate to the Blessed Eucharist. A…..convincing treatise….We cordially recommend it for circulation." – Church Times.

"A very plain and powerful argument as addressed to Protestants." – Church Review.

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