of the complete supremacy of the Crown"; as, from the subjoined, it is evident that he did :

:

Sir F. Thesiger's explanation.

"The noble lord must know perfectly well that the hon. member for Cork proposed the omission of the words 'ecclesiastical and spiritual' in order that Roman Catholics might be enabled to take the oath. Roman Catholics did not deny that the Pope hath or ought to have jurisdiction, power, pre-eminence, and authority, ecclesiastical and spiritual, within these realms, and in order to have one form of oath which might be taken by Roman Catholics as well as Protestants, or any other members of the House, it was necessary to divest the form of the words which the hon. and learned member proposed to omit, those words involving a recognition of the supremacy of the Crown. (Hear, hear.) . . . He (Sir F. Thesiger) would ask those Protestant members of that House who were not prepared to abandon the recognition of the complete supremacy of the Crown by omitting the words 'ecclesiastical and spiritual,' whether they were disposed so far to favour the views of which the hon. and learned member for Cork was the advocate, as to compromise the question by assenting to the substitution of the words 'civil and temporal.' The point was one which involved a direct invasion of the supremacy of the Crown, and he must, with very great deference to the noble lord at the head of the Government, complain that upon such a question he did not refer somewhat more minutely to the importance of its bearing upon that supremacy".

Testimony of the "Penny Cyclopædia."

To these statements we demur, as being contrary to historical fact: and to them we shall find an answer indispensable to our argument. The "Penny Cyclopædia" describes the old oath as“Being, in fact, an oath of non-supremacy, rather than of supremacy; since, though in its second branch it negatives the supremacy of the Pope, it is silent as to any supremacy in the King." The humble title of the authority which we quote, may create some prejudice against its evidence: and there are, perhaps, those who may suppose that we are in straits for an argument. We may be excused, therefore, for recalling to memory that the work was edited by authors of some note, and adding that it cannot be charged with any puritanical bias: so that the quotation is not wholly destitute of weight.

But we can refer to an authority less likely to be questioned; to one whose testimony, though it does not proceed to the same length, yet is quite sufficient for our purpose. In debate on the "Oaths' Bill", The Times, July 11, 1857, Lord Lyndhurst said :—

"I now come to the other remaining oath-namely, the oath of supremacy. This oath at that period consisted of two parts-the one affirmative, the

Lord Lyndhurst

termed the oath a negation.

other negative. The affirmative part asserted the supremacy of the Crown-the negative part asserted that no foreign prince, prelate, or potentate, has or ought to have any spiritual jurisdiction within this realm. The Parliament of that day abrogated the former portion of the oath, and retained only the latter. Therefore, during the whole of the reign of William III., the only oaths required to be taken were, the simple oath of allegiance, which we now take, and the oath of supremacy, which we also now take”.

Dissenters deny both the Pope and the Royal Supremacy.

Lord Lyndhurst, then, describes the oath as a negation: now all negations do not imply affirmations; and this negation happens to be peculiarly one that does not. At the Revolution of 1688, Churchmen, Brownists, Non-jurors, Presbyterians, and Protestants of every kind of denomination, were unanimous in denying the supremacy of the Pope: but, were they equally so in accepting the spiritual supremacy of the Crown? At this day, Baptists, Methodists, Independents, and all orthodox Protestants, would gladly abjure the Pope, were it necessary, in the very terms of our oath : but where is the advocate who could persuade them to bow to the Royal supremacy over the Church?

The Royal Supre

We have no objection to the definition of the Royal supremacy laid down in the Articles. On the contrary, we heartily consent to its doctrine; and only regret that the Common Law and the Parliament have gradually so encroached on its limits, that in respect of support to the Church they have reduced it to little else than a mere empty title.

macy not denied by the Author.

We hope to show, ere we close, the worth of the Common-Law support of this prerogative of the Crown. In the meantime, we rest content with

The illustration

of the sense of

the Oath will consist of negative clauses.

pointing out, that this negative character of the oath will affect the whole course of our argument in illustration of its original sense. It will be our business to keep the mind steadily attent on that which the Crown denied to the Papists; not on that which it claimed for itself: to show that, while it could not compel its subjects to recognise its spiritual prerogative, it would not permit Papists to obey the supremacy of the Pope. Hence our matter will consist of the negative clauses of Acts, Injunctions, or any other documents.

THE ECCLESIASTICAL AND SPIRITUAL JURISDICTION OF THE REALM PRIOR TO 1533.

Many who strive to reconcile our oath of non-supremacy with the present status of the English Papists rest their case on the words "jurisdiction" or "spiritual ", to the entire exclusion of the remaining associated terms. This expedient would not be endured for a moment, were the point at issue one of mere temporal interests, and not having respect to spiritual subjects: their worldly acumen would quickly object to it.

But, though these agree in this irregular mode of exposition, yet they differ as to the practical result. As we have seen, Sir R. Bethell refers the abjuration to the courts spiritual: Mr. Napier confined it to those temporal. And the only two pretences to demonstrative proof on the part of those

who are anxious to retain the oath, present similar discordance. One respondent has said :

"But jurisdiction is juris dictio, the juris dicendi potestas, the dictum of the law, in this case ecclesiastical and spiritual”.

And another writes:

"In any dictionary, jurisdiction will be found defined as 'legal authority"".

success.

The first flies for his proof to that rare and curious work "Ainsworth's Lexicon ", where his erudite analysis may be seen ad literam! The second is content to appeal to the less classic lore of Johnson, Maunder, or Webster. The one speaks of the spiritual, the other of the temporal courts. We have, in a former pamphlet, argued the case on the narrow basis of the terms "jurisdiction ecclesiastical or spiritual"; and, we think, with But we shall ever decline to take these terms according to modern popular definition: such a definition would not apply to the Church of England's rule in 1558; nor was this rule of 1558 like that which prevailed prior to 1533. The advocates of our oath view the question through the medium of modern notions, and have unsparingly ridiculed those who have chosen to differ. A prelate of the reign of Henry VIII. would view it in a different light; and listen to these modern ideas with profound astonishment. From this latter point of view we shall investigate our subject. Long prior to the Conquest the Pope blasphemously asserted, that jurisdiction ecclesiastical and spiritual was vested in him by Divine right; and through himself alone could descend to other ministers of the Church. William, by charter, gave free scope, within this realm, to this blasphemy of the Vatican: from that hour the subject divided his allegiance; and the kingdom was virtually governed by the Pope.

The Pope's claims.

For centuries the executive of his jurisdiction within the realm constituted a formidable imperium in imperio. Ultramontane ecclesiastics, though the population was scant, were counted by tens of thousands; of the then barbarous learning they had almost exclusive possession; their wealth was half that of the kingdom; they held all the principal offices of state; for chicane they were inferior to none; and over the realm of conscience their power was supreme.

This potent corporation expelled the Saxon law from the public schools, so that for a century it lay in utter neglect. The sole rule of its jurisdiction were the civil and canon laws, imported from Rome. It enacted and enforced canons of its own, without asking the consent of the Crown. It enforced spiritual decrees in episcopal consistorial courts, in the name of the Pope. It scorned to submit its power either to the imprimatur of Parliament, or to the scrutiny of the King's courts. It removed appeals to Rome, and received thence Bulls of final decision. Its every member, from the

archiepiscopal head of a province to the lowest menial of the convent, was a sworn devotee of the Pope. The entire community professed to believe, and certainly inculcated on the laity as the prime dogma of their faith, that the Pope was Christ's Vicar upon earth.

Yet, even in those palmy days of Popery, all was not peace and unity. Men professed, indeed, to bow to the would-be Vicar of Christ, but their faith did not induce them to surrender to him all that they had. Kings would not part with the dignity of their crowns; barons would not wholly relinquish their freedom; English bishops would not suffer Italians to share the fleece of their flocks; and municipal lawyers viewed the spiritual courts with professional grudge. These last, about three centuries after the Conquest, began to emerge into note; they ignored the foreign laws of Papistical prelates; they appealed to the laws of Edward the Confessor, and said, that these vested supreme ecclesiastical jurisdiction in the King, as the Vicar of God; they contrived to play off the courts of the King in opposition to the power of the Church. We will see how their action affected the ecclesiastical jurisdiction: and we shall find, that, despite legal ambition, animosity, and ingenuity, this Common-Law theory vanished into air under Ultramontane ascendancy.

Courts came into collision with courts: this kind of conflict will first receive our attention. It lay wholly between courts within the realm; and so far was it from necessarily involving opposition to the Pope as Pope, that it might have occurred had his rule never risen in Christendom. Jurists technically treat the subject

Prohibitions.

under the title "Prohibitions".

"In the most palmy days of Popery in England (says Lord Campbell in Ferguson v. Earl of Kinnoul) if the Courts Christian exceeded their jurisdiction, as if they were seeking to enforce an unlawful canon, instead of appealing to the Archbishop, or the Vatican at Rome, an application was made to the Courts at Westminster Hall for a prohibition."

Let us distinguish wherein the illegality of a canon would consist. It would not be, that Parliament had enacted that adulterers might intermarry; but the Church was enforcing her canon, that they should not: for in those palmy days spiritual serfdom effectually screened Parliament— King, Lords, and Commons-from spiritual presumption. Lord Campbell supposes that "the Courts Christian exceeded their jurisdiction". Judge Blackstone defines in what such excess might consist:

"A prohibition may be directed to the Courts Christian".... "if they should attempt to try a contract made or attempted to be executed within this kingdom.".... "or as where they require two witnesses to prove the payment of a legacy, a release of tithes, or the like; in such cases also a prohibition will be awarded. For as the fact of signing a release is not properly a spiritual question, but only allowed to be decided in those courts because incident or accessory to some original question clearly within their jurisdiction;

it ought, therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law."-Bk. iii., ch. 7.

Hence it appears that a canon would be esteemed unlawful only when it interfered with something temporal, and was supposed to cross the boundaries of things spiritual.

Præmunire.

The technical distinction of the only other kind of legal resistance to the Church was Præmunire". This kind of contest lay between the Crown and the Pope; and it brought the contending parties, so to speak, face to face. The laws of Præmunire, prior to 1533, were designed to curb the Pope's CIVIL power alone: to this point legal testimony is most express. Judge Blackstone writes, Bk. iv. :—

Page 112.-"By the statute 2 Hen. IV., c. 3, all persons who accept any provision from the Pope, to be exempt from canonical obedience to their proper ordinary, are also subjected to the penalties of præmunire. And this is the last of our ancient statutes touching this offence, the usurped civil power of the Bishop of Rome being pretty well broken down by these statutes." Page 427.-"The statutes also of præmunire, for effectually depressing the civil power of the Pope, were the work of this and the subsequent reign.” And, from a pamphlet by a gentleman of the bar, we extract the following

"Stat. 25 Hen. VIII., c. 12, s. 20. Before this period the usurped civil power of the Bishop of Rome was so keenly felt, that the statute of pramunire, 16 Rich. II., c. 5., was passed. See Stephens' Com., vol. iv., p. 212."

Prohibitions and

Præmunire conceded the Pope's

Such were the lines of action on the part of the King and his Courts against the power of the medieval Papal Church. Neither of these touched the question now at issue-the Pope's ecclesiastical and spiritual rule: they referred only to "bodies, lands, or goods". These contests were merely spiritual claims. questions of mutual limits; they conceded the root of the evil-the Pope's spiritual power.

Those who sued for "prohibitions ", or stirred the laws of "pramunire", so far denied their faith; but they screened their infidelity under the flimsy pretext of distinguishing between things temporal and spiritual. When a prohibition obtained, it was on the ground that the case naturally belonged to things temporal; if it were refused, it was on plea that the cause was properly spiritual. Thus, prior to 1533, the ecclesiastical and spiritual jurisdiction was studiously left unimpeached; and "power to enforce by law", or in the temporal courts, was not in any sense an element of it.

The two jurisdictions were notoriously antagonistic, and as notoriously independent of each other. This entire independence of the spiritual jurisdiction in respect of the Common-Law Courts is directly laid down in the following sentences of Bracton, quoted by Hooker :

"Est jurisdictio ordinaria quædam delegata, quæ pertinet ad sacerdotium, et forum

C