tion of papal pretensions to decide in questions of patronage, to enjoy suzerainty and to exercise powers deduced therefrom.

When Henry VIII set himself to enforce a right to supremacy in ecclesiastical as well as secular things, he encountered at first the resistance of the clergy. After considerable discussion both convocations recognized him unconditionally as supreme lord of the English clergy; but a supreme head (i.e. as official superior), only in so far as the law of Christ allowed. This limiting clause was, however, afterwards silently suppressed, first in a petition of the lower house of parliament, converted into the act, 25 Hen. VIII (1533/4) c 21,3 then in the first supremacy act 26 Hen. VIII (1534) c 1.45

sumque Regnum, fuerint ab omni tempore retroacto adeo libera, quod Dominus Summus Pontifex, nec aliquis alius extra Regnum ipsum, se intromittere debeat de eisdem, tamen praefatus Rex ad roborationem Statutorum suorum erroneorum supplicavit Domino Pape, quod Statuta in ultimo Parliamento suo ordinata confirmaret. Super quò dictus Rex Litteras Apostolicas impetravit, in quibus graves censure proferuntur contra quoscumque qui dictis Statutis in aliquo contravenire presumpserint. Que omnia contra Coronam et Dignitatem Regiam, ac contra Statuta et Libertates dicti Regni tendere dinoscuntur.-For the fact that the supreme judicial power of the pope in purely ecclesiastical matters was not disputed at this time, see § 23, note 11. -Cf. also the authorities given to ambassadors from the English kings to newly elected popes. Authority of Henry VI, 16th May, 1459 (Rymer, Foedera 3rd Ed. V, part II p. 84:. . Itaque, in ejusdem interioris nostrae Devotionis suae Sanctitati expressiorem declarationem, vos Oratores nostros et Nuncios speciales ad praestandum Obedientiam dignam, atque debitam Devotionem, Sanctissimo in Christo Patri Pio Papae Secundo, vero et indubitato Christi Vicario, Exhibendam Constituimus, ) and of Richard III, 16th potestatem

Dec. 1484 (l.c. V pt. III p. 157:.. Dantes pro Nobis et Nomine nostro, Devotionem, quam in Sanctam Sedem Apostolicam ac ipsius Praesidentem modernum Sanctissimum Dominum nostrum Dominum Innocentium Papam Octavum gerimus et habemus, Filialemque et Catholicam Obedientiam a Regibus Angliae Romanis Pontificibus ab antiquo debitam et praestari consuetam, pro Nobis Exhibendi, Praestandi, et Faciendi,

.).

2 Grant of a sum of money to the king by the southern convocation 22nd March, 1531 (Wilkins III, 742). In brackets: (cujus [scil. cleri Anglicani] singularem protectorem unicum et supremum dominum, et quantum per Christi legem licet, etiam supremum caput ipsius majestatem recognoscimus). In May, 1531, there was a grant by the northern convocation with the same clause (Wilkins III, 744). 3 s 1:

It may therfore please your

Majestie.

•, for asmoche as your Majestie is supreme hede of the Church of Englonde, as the Prelates and Clergie of your Realme representing the seid churche in their Synodes and convocacions have recognysed,

An Acte concernynge the Kynges Highnes to be supreme heed of the Churche of Englande and to have auctoryte to refourme and redresse all errours heresyes and abuses yn the same. The essential provisions of this act run:

Albeit the Kynges Majestie justely and rightfully is and oweth to be the supreme heed of the Churche of England, and so is recognysed by the Clergy of this Realme in theyr convocacions; yet neverthelesse for corroboracion and confirmacion therof be it enacted by auctorite of this present Parliament that the Kyng our Soveraign Lorde his heires and successours Kynges of the Realme shalbe takyn acceptyd and reputed the onely supreme heed in erthe of the Churche of England callyd Anglicana Ecclesia, and shall have and enjoye annexed and unyted to the Ymperyall Crowne of the Realme

6

From this time onward Henry VIII exercised his right of supremacy. He strengthened his position by penal enactments and by the introduction of a supremacy oath. În like manner the supremacy was upheld by the regency during the minority of Edward VI. In consequence of the reaction under Mary the position which Henry VIII had won for the crown was, by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 88, wholly abandoned, and a return was made to the attitude which the crown had taken towards the church in the middle ages. Finally, Elizabeth, without reviving in form the supremacy acts of Henry VIII, adopted instead in her own first supremacy act new provisions which differed but very slightly from the corresponding clauses in Henry's legislation. The supremacy

aswell the title and style therof, as all Honours Dignyties prehemynences jurisdiccions privileges auctorities ymunyties profitis and commodities to the said dignytie of supreme heed of the same Churche belongyng and apperteynyng: And that our said Soveraigne Lorde his heires and successours Kynges of this Realme shall have full power and auctoritie from tyme to tyme to visite represse redresse reforme ordre correct restrayne and amende all suche errours heresies abuses offences contemptes and enormyties what so ever they be, whiche by any maner spirituall auctoryte or jurisdiccion ought or maie lawfullye be reformyd repressyd ordred redressyd correctyd restrayned or amendyd

·

Henry VIII had also obtained in 1534 declarations from the clergy individually, in which the limiting addition, in so far as the law of Christ allowed,' was left out.

5 In harmony herewith in the course of 1534 the northern and southern convocations and the universities of Oxford and Cambridge gave a negative answer to the king's question: An Romanus pontifex habeat aliquam majorem jurisdictionem collatam sibi a Deo in S. Scriptura in hoc regno Angliae, quam alius quivis externus episcopus? (Wilkins, Concilia III, 769, 771, 775, 782).

6 First by what is called the second supremacy act or 'Treason Act' 26 Hen. VIII (1534) c 13 An Acte wherby divers offences be made high treason [it was repealed by 1 Ed. VI (1547) c 12 s 1: An Acte for the Repeale of certaine Statutes concerninge Treasons, Felonyes etc. and not again revived]; then, cf. in particular 28 Hen. VIII (1536) c 10 An Act extynguysshing the auctoryte of the Busshop of Rome. [Repealed by 1 & 2 Phil. & Mar. (1554 and 1554/5) c 8 s 4 and not revived but replaced by 1 Eliz. (1558/9) c 1 ss 9-18.]

7 First by 28 Hen. VIII (1536) c 10 s 6 (oaths of allegiance had been introduced earlier).

An Acte repealing all Statutes Articles and Provisions made against the See Apostolick of Rome since 20 Hen. VIII, and also for thestablishment of all Spyrytuall and Ecclesiasticall Possessions and Hereditamentes conveyed to the Layetye. In ss 2-7 a series of acts (specified) of Henry VIII (among them his first supremacy act) are repealed, as also part of an act of Edward VI. Then s 8 is general: that all clauses sentences and articles of every other Statute made sithence 20 Hen. VIII againste the supreme aucthoritie of the Popes Holines or Sea Apostolike of Rome, or conteining any other matter of the same effect onely, that is repealed in any of the Statutes aforesaid, shall be also by aucthoritee hereof from hensforthe utterly voide

9

"s 1 repeals 1 & 2 Phil. & Mar. c 8 in those respects with which we are here concerned. (In another respect that act is upheld by s 16.) According to s 4 the acts repealed by 1 & 2 Phil. & Mar. c 8 remain without force in so far as they are not revived by the present statute. s 7 then determines the negative side of the king's supremacy by excluding all foreign superiority. s 8 enacts positively. : that suche Jurisdictions Privileges Superiorities and Preheminences Spirituall and Ecclesiasticall, as by any Spirituall or Ecclesiasticall Power or Aucthorite hathe heretofore bene or may lawfully

of the king to the extent fixed in Elizabeth's reign has ever since been acknowledged.10

The title of supreme head of the English church had been given to the king in the first supremacy act of Henry VIII;" and thenceforth the king employed it.12 The titles to be borne by the king were subsequently fixed by the statute, 35 Hen. VIII (1543/4) c 3, and in it again the title of supreme head of the church was retained.13 Mary made, except in some few exceptional cases, 14 no use of it.15 By 1 & 2 Phil. & Mar. c 8 the two opposing enactments were repealed, and, whilst no new title was ordained, it was declared that it had been within the queen's free will whether she should use her titles or not, and that accordingly all documents wherein this title had not been employed should, nevertheless, be valid.16 Elizabeth, who revived by statute the supremacy to the extent practically in which it had existed under Henry VIII and Edward VI, yet took into account the offence which the title supreme head of the church had given to many. She, therefore, did not resuscitate the title, but escaped it by the phrase 'supreme governor of this realm in all spiritual as well as in all temporal things.' 17

There have been frequent disputes as to what is included or

be exercised or used for the Visitacion of the Ecclesiasticall State and Persons, and for Reformacion Order and Correccion of the same and of all maner of Errours Heresies Scismes Abuses Offences Contemptes and Enormities, shall for ever by aucthorite of this present Parliament be united and annexed to the Imperiall Crowne of this Realme;

10 The right, given the king in s 8 of the last-mentioned act, to appoint commissions for the exercise of such powers was afterwards abolished. Cf. § 30. 11 Compare above, note 4.

12 In 1 & 2 Phil. & Mar. c 8 s 18 it is stated that the title Supreme Hedd of the Churche of Englande and of Irelande (or one of the two) has been in use since 3rd Nov. 26 Hen. VIII (1534).—Cf. also (quoted in Stubbs, Hist. Append. to Report of Eccles. Courts Comm. 1883): Memorandum quod quinto decimo die Januarii anno regni regis Henrici octavi vicesimo sexto (i.e. 1535), idem dominus rex decrevit et ordinavit stilum et titulum suum regium, tam in chartis et literis suis patentibus quam in brevibus quibuscunque in omnibus et singulis curiis suis infra regnum suum Angliae et infra omnia et singula dominia et terras ei subjecta fieri et scribi deinceps sub ea quae sequitur forma, videlicet ; Henricus octavus Dei gratia Angliae et Franciae rex, fidei defensor et dominus Hiberniae, et in terra supremum caput Anglicanae Ecclesiae.

13 The Bill for the Kinges Stile. The full title is to run: Henry VIII by the grace of God Kyng of Englonde Fraunce and Irelande Defendour of the faithe, and of the Churche of Englonde, and also of Irelande in earthe the supreme Hedde.

14 Collier, Eccles. Hist., Record lxviii bis, prints after Regist. Bonner fol. 346 a licence to preach, dated 20th Nov. 1553, and given by the queen in accordance with her ordinance of 18th Aug. 1553. It begins: Maria etc. mum caput, dilecto subdito nostro A. B

salutem.

supre15 It is stated in 1 & 2 Phil. & Mar. c 8 s 19 that she had since her accession left out the title supreme head of the church.

16 s 19 of act just cited.

17 This designation is contained in the supremacy oath 1 Eliz. c 1 s 9. Oath is to be taken that the Quenes Highnes is thonelye supreme Governour of this Realme and of all other her Highnes Dominions and Countreis, as well in all Spirituall or Ecclesiasticall Thinges or Causes as Temporall,

6

involved in the supremacy. Even the first supremacy act of Henry contains in general terms an enumeration of the rights which are to be regarded as implied therein. These are honours, dignities, preeminences, privileges,' etc. but, as the essence of the whole, the right of exercising every form of spiritual authority or jurisdiction for certain purposes stated in the enactment. From the list of purposes specified it is plain that the king from the outset claimed only what is called the potestas jurisdictionis (in the sense in which the phrase is employed in Roman catholic ecclesiastical law), not the potestas ordinis as well.18 In spite of the general expression 'authority,' used in the statute, there was not ascribed to the king therein the ecclesiastical power which springs from consecration. On the other hand, with the 'jurisdiction' which passed to him passed also the sovereign power to make ordinances touching spiritual matters and the right to supreme control in ecclesiastical administration.

This principle was observed, on the positive as well as on the negative side, in all the proceedings of Henry VIII and Edward VI's reign.

That the supremacy did not imply potestas ordinis is expressly acknowledged by Henry VIII in a letter of 1533 to Tunstall, bishop of Durham.19 When in Henry's reign and in his successor's the

18 On the difference between the two see Richter, Kirchenrecht § 91. His § 95 deals with the difference, contained in German protestant professions of faith, between the rights of governments and a power of the keys attaching to the church, this power being divided into potestas ordinis and potestas jurisdictionis. The potestas jurisdictionis in the protestant sense is much narrower than in the Roman catholic. For the protestant conception the chief refer

ences are:

Confessio Augustana (1530) art. XXVIII (abusus VII): Sic autem sentiunt (the protestants), potestatem clavium seu potestatem Episcoporum, juxta evangelium, potestatem esse seu mandatum Dei praedicandi evangelii, remittendi et retinendi peccata, et administrandi sacramenta Porro secundum evangelium, seu, ut loquuntur, de iure divino, nulla jurisdictio competit Episcopis ut Episcopis, hoc est his, quibus est commissum ministerium verbi et sacramentorum, nisi remittere peccata, item cognoscere doctrinam, et doctrinam ab evangelio dissentientem rejicere, et impios, quorum nota est impietas, excludere a communione ecclesiae, sine vi humana, sed verbo.

Melanchthon, Apologia Confessionis Augustanae (1531) art. XXVIII § 12: Et placet nobis vetus partitio potestatis, in potestatem ordinis et potestatem jurisdictionis. Habet igitur Episcopus potestatem ordinis, hoc est ministerium verbi et sacramentorum, habet et potestatem iurisdictionis, hoc est auctoritatem excommunicandi obnoxios publicis criminibus, et rursus absolvendi eos, si conversi petant absolutionem

19 Printed in Wilkins, Concilia III, 762: so as in all these articles concerning the persons of priests, their laws, their acts, and order of living, forasmuch as they be indeed all temporal, and concerning this present life only, in those we (as we be called) be indeed in this realm 'Caput'; and because there is no man above us here, be indeed Supremum caput.' As to spiritual things, meaning by them the sacraments, being by God ordained as instruments of efficacy and strength, whereby grace is of his infinite goodness conferred upon his people; forasmuch as they be no worldly nor temporal head, but only Christ by whose ordinance they be ministred here by mortal men ; who for the time they do that, and in that respect, 'tanquam ministri versantur in his, quae hominum potestati non subjici

เ

bishops were constrained to beg royal permission for the exercise of their ecclesiastical powers of jurisdiction, in the letters patent granted them the reservation was made that they might continue to exercise in their own names such powers as they derived from Holy Scripture.220 Similarly in 1 Ed. VI (1547) c 2 precise distinctions are drawn between the documents the bishops are to set forth, in form as well as fact, under the king's name and those to be issued under their own names. The distinctions applicable in the case of the several documents are not, it is true, in detailed agreement. But this is attributable to the fact that in regard to many episcopal actions it is doubtful whether they emanate from the potestas jurisdictionis or the potestas ordinis. The underlying principle of discrimination is, however, identical in all the distinctions drawn.

On the positive side, both Henry VIII and Edward VI laid claim to the right of supreme control in ecclesiastical administration. This was from the outset clearly indicated by the appointment of Crumwell as vicar general; and though on Crumwell's death the office was not refilled, that did not signify a surrender of the control; but the king thenceforth in exerting it availed himself of other officials, and especially of his privy council. In like manner, the government of Henry VIII as well as that of Edward VI asserted the king's right to issue independently temporary ordinances touching spiritual matters. In both reigns the right was chiefly exercised by means of what were called 'injunctions.'

The legal situation established by the legislation of Henry and Edward was as described. It is not, however, of any direct significance at the present time; for the enactments which determined it were repealed under Mary and not afterwards revived. The statutes of Elizabeth's reign are the only ones which now, in this matter, are in force.

Beyond doubt, the rights deducible from the potestas ordinis were not conferred on the crown in Elizabeth's day any more than under her predecessors. This follows from the enumeration in her first supremacy act of the purposes for which ecclesiastical power is to be exerted by the king 22 Claim to potestas ordinis on the king's part is, furthermore, distinctly excluded in an appendix to the injunctions of 1559,23 (declared by 5 Eliz. [1562/3] c 1 to be authoritative

untur; in quibus si male versantur sine scandalo, Deum ultorem habent, si cum scandalo, hominum cognitio et vindicta est

20 Cf. § 6, notes 23 and 41.

22 Cf. above, note 9.

21 Cf. § 6, note 42.

23 An admonition to simple men deceived by malicious (Cardwell, Doc. Ann. I, 199): her majestie forbiddeth all manner her subjects to give ear or credit to such perverse and malicious persons, which most sinisterly and maliciously labour to notify to her loving subjects, how by the words of the said oath (of supremacy) it may be collected, that the kings or queens of this realm, possessors of the crown, may challenge authority and power of ministry of divine service in the church; wherein her said subjects be much abused by such evil disposed persons. For certainly her majesty neither doth nor ever will challenge any authority, than that was challenged and lately used by King Henry VIII and King Edward VI, which is, and was of ancient