Church and State under the Tudors/Chapter 1

by Gilbert William Child

CHURCH AND STATE UNDER THE TUDORS

CHAPTER I

INTRODUCTION

It is proposed in the present essay to investigate the relations of Church and State in England during the reign of the Tudor sovereigns, with the object of throwing some light upon the respective shares of each in what is commonly known as the 'Reformation settlement.' In order to do this intelligibly it is, however, necessary to give a short account of the state of these relations in far earlier times, and also a slightly fuller one of the position which they occupied during the reign of the Plantagenet and subsequent kings, since in historical as in other investigations into the actual course of facts, however violent may be the contrast which any given state of things may present to that which preceded it, there are constant relations of cause and effect to be discovered between the two. The best, perhaps the only practicable, mode of treating history may be to divide it into periods; but we must ever remember that no given period could have presented the actual phenomena which we see in it had that which preceded it been other than it was.

It is also necessary to give some slight account of the machinery, so to speak, by which in early times the two powers were brought into relation, although this subject is far from being as clear as might be wished.

For this last subject, as well as for the earlier part of my sketch, I shall adopt as my chief guide the report of the late commission on the constitution &c. of the ecclesiastical courts, and therein and mainly the learned appendices to the same by the present Bishop of Oxford.

I. From these, then, we learn that in the early Saxon times a great deal of power, in ecclesiastical as in other matters, lay in the hands of the king. This we should expect from the fact that the Saxons had in those times been but recently converted, and that it must therefore have been largely by the permission or the co-operation of the king that the missionaries were permitted to exercise their functions at all, and so any relations of Church and State were established. We learn, further, that the king's power was by no means accurately defined, and depended in a great measure for its practical effect upon the strength or weakness of character of the individual king for the time being. But the example chosen by the commissioners to illustrate this fact is not an Anglo-Saxon king at all, but Charles the Great, whom they refer to as the type of a strong monarch, and whose influence on ecclesiastical affairs was certainly undeniable. No doubt, however, influence such as his was exercised in its degree by the Anglo-Saxon kings. During the whole of the pra3Norman period the ecclesiastical court appears to have been the court of the bishop, who sat together with the ealdorman, and took, as we might say, the ecclesiastical causes while the latter functionary disposed of the secular, much as in our own day the criminal and civil cases are disposed of by two judges of assize.

The whole account as given in the report has an air of vagueness and uncertainty about it, depending mainly, no doubt, on the scarcity and remoteness of the evidence, but which seems to suggest also, what was doubtless the fact, that the powers of the judges named, no less of the king himself than of the bishop and the ealdorman, though large, were vague and undefined, and partook more of the character of visitorial authority than of strict legal power. Indeed it is abundantly clear that in those early days the 'authority' of any man who from rank, birth, or office had become an important individuality carried with it an amount of actual power, efficient both for good and for evil, which we living in the latter end of the nineteenth century find it difficult adequately to realise.

Beyond the point which we have already indicated, the report does not go in defining the constitution of the courts which administered the law in ecclesiastical cases in those early times, or their mode of procedure.

It does, however, describe the law administered in the ancient English Church as comprising,^[1] first, 'a body of canonical law containing the Holy Scriptures, the Creeds, and the canons of general councils, which were authoritative in the whole of the Western Church; and, secondly, the decrees of national councils, supplemented in application by the less authoritative manuals of discipline known as Penitentials, by the collections of foreign canons, and by the coincident legislation of Christian kings,' and this is a matter important to be remembered.

The commissioners note further, here as elsewhere in this portion of their report, adopting almost verbally the statements made by Bishop Stubbs in his careful and able historical survey constituting Appendix I.,^[2] that 'in the historical growth of ecclesiastical judicature in national Churches three principles are involved: (1) the existence of an ecclesiastical law independent of and, in modern states, anterior to the national secular law; (2) the acceptance by the nation of that law, so far as it is of general obligation, as the law of religion of the National Church; and (3) the annexation, by the nation, to the sentence of the law so accepted, under varying limitations, of the coercive power by which alone the sentences can be enforced upon the unwilling.'

Now it seems clearly to follow from these three principles (1) that 'the Church' is something anterior to and independent of the nation which accepts it, and (2) that its acceptation by the nation is the act of the nation itself, and, as Lord Penzance rightly says in his own report (p. lxiv.) 'what the sovereign of his own supreme authority with the advice of his Council or Parliament set up and created, the sovereign, with the advice of Parliament, may well alter and amend.'

Hence we must be very careful in this matter to distinguish between 'the Church' and 'the National^[3] Church.' To take the earliest instance, the Church was the Church before the time of Constantine, but it did not, and could not, become the national or (in this case) the imperial Church until his time. Further, the law of the Church is binding on Churchmen as such; it is binding on citizens only so far as it is accepted by the State—so far, that is, as it has been made a part of the law of the State.

II. Proceeding downward, still under the guidance of the commissioners and Bishop Stubbs, we find that in ecclesiastical as in other matters very considerable and very important changes followed upon the Norman conquest. 'That event,' in the words of the commissioners, 'placed the English Church in closer connection than before with the Churches of the Continent, introduced a new school of ecclesiastical administrators, and coincided in time with a revival of the study of civil and canon law.'^[4] From this time dates the establishment of the ecclesiastical courts as separate tribunals, of which^[5] those now in existence are the legitimate descendants; the creation of a large class of professional ecclesiastical lawyers; and of a system of appeals ultimately to the courts of Rome.

Of the law administered by these courts we are told that while no new code was imposed, the episcopales leges' were to be followed so far as they were 'secundum canones.'

Bishop Stubbs believes that 'they were already drawn out and codified in conformity with the usages of foreign Churches.'^[6] It is to be borne in mind, further, that the Roman canon law was not formally imposed, nor were its provisions permitted to stand where they came into conflict with the statute law of England; yet it served as the groundwork upon which the English Canonists John of Ayton and Lyndwood worked, and a knowledge of it was part of the equipment of an ecclesiastical lawyer. Further, we are told that 'very much of the ecclesiastical law,' after as well as before the conquest, 'was customary;' that the declaration of the law still remained in the mouth of the judge, who 'declared it out of his own knowledge and experience, without reference to any authoritative text;' that the judge was either the bishop or his nominee, and before the end of the Conqueror's reign nearly all the sees were filled by 'foreign bishops to whom all that was national and insular in the Church law of England was entirely strange;'^[7] that if the judge erred 'his error could be corrected at Rome if the suitor was able to reach the supreme court of Church judicature there;' that the archdeacons, the early substitutes for bishops as judges, were mostly educated at foreign universities. All these taken together make it a difficult matter to resist the conclusion that Roman canon law became practically the Church law of England, except in the few cases in which local custom held its own because it was worth no one's while to upset it, or in those in which it came into actual conflict with the statute law of the State. This conclusion is confirmed by the fact that the procedure in the new ecclesiastical courts, which at first appears to have had a tendency to retain its own præ-Norman form, was after a brief period 'adapted to the customary procedure of the Roman law,'^[8] and that a regular system of appeals to Rome was established, which Henry II. and other sovereigns were able to restrain and modify only to a very limited extent, and that only by pleading a privilege specially granted by the Apostolic See, which excused English subjects from the liability of personal attendance at Rome.^[9] Another point which must not be passed over is the fact that for some four centuries, from 1127 to 1534, with slight exceptions and interruptions, the Archbishops of Canterbury held the office and bore the title of legate of the Apostolic See.^[10] When the popes had for some time used the institution of legates to exercise active interference in the internal affairs of England, and when not only the kings but on some occasions the primates also had found their so doing inconvenient, and at the same time had failed to prevent it, the latter got over the difficulty by accepting the office for themselves, thus at once adding to their own authority and, without detracting, in appearance at least, from the papal power, lessening the jealousy with which it was regarded when exercised by foreigners. The Archbishop became legatus natus instead of legatus a latere; but this probably only increased the flexibility of the whole arrangement. The ultimate advantage to the archbishops was, however, a questionable one, since it led in the end to a doubt as to how much of the authority they claimed belonged to them as primate of England and how much as legate of the Pope.^[11]

It is hardly necessary to refer in detail to the better-known historical facts which illustrate the more direct and ostensible relations of the Church and the State during this long period. Whenever there was a king weak either in character or in title, then the Church became the predominant power; when the monarch was strong and his right unquestioned, this predominance became less marked.^[12] William, the very type of a strong monarch, had maintained his own supremacy in Church as well as in State; so to almost an equal degree had his able and politic son Henry I.; but the balance had inclined in the other direction by the time that Henry II. was compelled to give up the constitutions of Clarendon, and the power of the State was hopelessly outweighed when John had consented to hold his crown as a fief from the successor of St. Peter. From his time downward not even Edward I. and Edward HI. were able to shake off the control of the Church, though they and their successors attempted from time to time, and with more or less success, by measures such as the Acts of Provisors and Præmunire, to restrain it within endurable limits.^[13] These and similar measures seem, however, to have had an incurable tendency to fall into abeyance, and during the wars of the Roses, the kings, especially those of the House of Lancaster, were often ready to prop up their own doubtful authority by the powerful help of the clergy, without always considering the price which they had to pay for it.

There was generally, during these ages at least, a constant tendency to a rivalry between Church and State, which not unfrequently deepened into a sharp contention. When the ordinary division of parties became temporarily altered in times in which the State was divided against itself, the Church would side now with one party and now with another, and there was at least one famous instance in which the process was reversed, and the factions of the State succeeded for the moment in arming the different powers of the Church against one another, when Archbishop Langton incurred the censure of the Pope by joining the barons against that most dutiful and exemplary son of the Church King John. But it is just this very fact that a rivalry did exist, during the period now under review, between Church and State, which makes it difficult to attach any meaning which is other than misleading to the phrase 'National Church.' Contending parties in the State all ages have seen, and all ages have in a greater or less degree understood; but it is not so easy to understand the existence of a party against the State, unless it be one which aims at nothing less than the entire subversion of the State.

The Western Church was and remained until the Reformation one and indivisible, and the very fact that it had, as we have seen, its own laws and its own organisation, and that prior to and independent of the very existence of any nation of modern Europe, was in itself enough to prevent its becoming in any intelligible sense of the word 'national.' It extended into all the nations of Europe, and was national in none of them. Its own laws, its own customs, ceremonies, usages, prevailed throughout its whole extent, and the powers and prerogatives of its officers, and its own claims on the allegiance of mankind, were quite unaffected by the locality in which they chanced at any moment to be exercised. Its ritual, nay, its very language, was the same throughout the world, so that not only a priest in Germany was a priest in Italy, but if a priest travelled from one country to another he could join and officiate in the services of the Church, as Luther did when he made his journey to Italy, in Rome itself and elsewhere. Such differences as did exist in the usages of the Church in different countries were due, no doubt, partly to the different character of the people—emphasised perhaps by the difficulty of communication and consequent rarity of intercourse between Churchmen of distant countries—and partly also to the nature and circumstances of the bargain which the Church had been able to make in each case with the State, and to the character and aim of the ruling powers of the State for the time being.

It will be said, perhaps, that some of the statements which I have now made, carry with them the implication of a considerable degree at least of freedom on the part of the Church from State control, and this is no doubt true; but then it is just because it was not national, and just so far as it was not national, that this independence existed. It would be a thing not only beyond the experience of historians but beyond the conception of political philosophers that two co-ordinate powers, such as the Church and State appeared to be in Plantagenet times, should ever have co-existed in one nation if they had both belonged to that one nation; but it was just because the Church in England was not in truth the Church of England, but was an organic portion of the one great Western Church, and able to carry on its own diplomacy and enter into its ow^n alliances, that it was enabled to occupy the position of independence, and sometimes almost of supremacy, in which we find it. It is this double position of the Church which alone makes intelligible the history of England, and indeed of most other European nations, during the centuries preceding the Reformation. The Church was at once in the nation and not of it; it formed a part of a vast organisation extending throughout—nay even beyond—the civilised world; its officers, while in every nation numbered amongst the great ones of the earth, belonged at the same time to an independent theocratic State, whose sovereign, as such, was the earthly equal of earthly kings at the same time that, as the declared vicegerent of God, he claimed superiority over the highest of them. It was thus, and thus only, that the rivalry between Church and State in so many countries, and in England especially, arose and was maintained. Had the Church been in truth the Church of England it would have been a mere imperium in imperio, and would never have been able to hold its own generation after generation and century after century against the State, often represented by powerful and able monarchs such as Henry H. or Edward III. It was just because it was not the Church of England but a mere extension into England of the powerful Western Church, having its rights and its interests and its officers in every nation, and its independent seat of empire at Rome, and thus enabled to enlist one nation against another, or a nation against its own rulers, that it became in a greater or less degree, and for periods varying in different countries, independent of the State, and a rival of the State. Had the Church in England been in truth the Church of England, a Becket or even a Dunstan would have been impossible; it was just because they could fall back upon a foreign power independent of and formidable to the Government of their own country, that those prelates were enabled to treat with their own sovereigns as on equal terms.

No author of repute, however insular his point of view, would venture to write of one of the great religious orders—the Cistercians, say, or the Franciscans, or the Templars—as a great 'national' order; such a title would be at once recognised-as a misnomer. It would be answered that they were in no sense national. They were powerful orders of men, bound by their own rules, subject to their own officers, settled, indeed, in every nation of Europe, and so far—and so far only—bound by the instinct of self-preservation to keep on good terms with the law of the several countries within whose dominions they lived, and by whose protection they enjoyed their possessions, but acknowledging no nationality but that of Christendom as a whole, and deriving their power, their grandeur, and their influence mainly from the very fact that they did acknowledge none. And yet this is but comparing small things with great. If this be true—as surely it is true—of the great religious orders of the Church, much more is it true of the Church herself—the one great nationality, if I may so call it, which those great religious orders owned, the one great mistress and mother whom alone they acknowledged and obeyed.

1. Report of the above Commission, p. xvii.
2. Reports xvi.
3. The term National Church, though susceptible of a distinct meaning, is often so used as to be ambiguous and misleading. If England had adopted the Roman law, or still better for purposes of illustration the Code Napoléon, would it be right to speak of it as a national system of law? Is it not rather the fact that English law differs from the law of other nations which makes it national? And, similarly, if the English nation accepted the Church with its then existing canon law, does it not tend to obscure rather than to illustrate the history of the Church in England to speak of it as the National Church?

   Bishop Stubbs states repeatedly and expressly that the Church of England was not even in Anglo-Saxon times merely the religious organisation of the nation, but a portion of a much greater organisation; the exact limits of its relations to foreign Churches were possibly disputable but the fact of the incorporation was admitted on all sides. Appendix I. p. 23. See also previous page sub fin.

4. Report, p. xviii.
5. Appendix I. p. 27 sub fin.
6. Appendix I. pp. 24-5.
7. Appendix I. pp. 24-5.
8. Appendix I. p. 27.
9. Appendix I. p. 30, sub fin.
10. E.g. Anselm; see Appendix I. p. 27.
11. Appendix I. p. 27.
12. Appendix I. p. 25.
13. Appendix I. p. 30, sub fin., wherein Bishop Stubbs defines the object of the statute of Præmunire as being to 'prevent the recourse to Rome upon points which the civil tribunals at home were competent to settle,' not, as some people seem to fancy, to prevent such recourse altogether