in the interpretation of the supremacy oath),24 as also in the thirtynine articles.25

The only question which arises is what powers were positively vested in the crown in virtue of the supremacy. Did the power of ecclesiastical jurisdiction accrue, as being the right of supreme ecclesiastical control and government? Or was it a purely temporal power over ecclesiastical persons and property?

The first supremacy act of Elizabeth most explicitly bestows on the sovereign ecclesiastical power, and indeed in almost the same words as the first supremacy act of Henry VIII. But in opposition to this view, it might seem that the injunctions of 1559, and consequently the second supremacy act of Elizabeth, referring as it does

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, soever they be, so as no other foreign power shall or ought to have any superiority over them

An Acte for thassurance of the Quenes Majesties Royall power over all Estates and Subjectes within her Highnes Dominions.

s 11: Provided also, that thothe expressed in the sayd Acte made in the sayd first yere shalbe taken and expounded in suche forme as ys setfoorthe in an Admonicion annexed to the Quenes Majesties Injunctions published in the first yere of her Majesties Reigne; that is to saye, to confesse and acknowledge in her Majestie her Heires and Successours, none other aucthoritee then that was chalenged and lately used by the noble King Henry Theight and King Edwarde the Syxte, as in the sayd Admonicion more playnly maye appeare.

25 Art. 37: Cum Regiae Maiestati summam gubernationem tribuimus, quibus titulis intelligimus, animos quorundam calumniatorum offendi, non damus Regibus nostris, aut verbi Dei, aut Sacramentorum administrationem, quod etiam iniunctiones ab Elizabetha Regina nostra, nuper editae, apertissime testantur. Sed eam tantum praerogativam, quam in sacris scripturis a Deo ipso, omnibus piis Principibus, videmus semper fuisse attributam, hoc est, ut omnes status, atque ordines fidei suae a Deo commissos, sive illi ecclesiastici sint, sive civiles, in officio contineant, et contumaces ac delinquentes, gladio civili coerceant. (appendix XI). On statutory requirement to subscribe the thirty-nine articles see § 16, note 12. Only negatively are we referred to the injunctions; positively, we have an independent explanation of the supremacy. Whether in the mere requirement to subscribe a certain declaration as a condition of appointment to certain offices, is involved a legal establishment of that declaration would seem doubtful.

The idea of the supremacy is also determined in the article of the civill Magistrate, in the Irish articles of 1615 (see § 11, note 24). It contains the following statement: nu. 58. We do professe that the supreme government of all estates within the said realms and dominions, in all causes as well ecclesi astical as temporal, doth of right appertain to the king's highness. Neither do we give unto him hereby the administration of the word and sacraments, or the power of the keys; but that prerogative only, which we see to have been always given unto all godly princes in holy scripture by God himself; that is that he should contain all estates and degrees committed to his charge by God, wether they be ecclesiastical or civil, within their duty, and restrain the stubborn and evil doers with the power of the civil sword.-The protestant episcopal church of the United States has adopted the following view: The power of the civil magistrate extendeth to all men as well clergy as laity, in all things temporal; but has no authority in things purely spiritual. And we hold it to be the duty of all men who are professors of the Gospel to pay respectful obedience to the civil authority, regularly and legitimately constituted.

H.C.

S

to them for its interpretation, gave merely a temporal power over ecclesiastical persons. The substitution, in the first supremacy act of Elizabeth, of supreme governor of this realm in all spiritual and temporal things' for 'supreme head of the church' might be regarded as pointing in the same direction. Lastly, in the thirty-nine articles-possibly to be appealed to and, if properly, then decisively, as being the last enactment-the supremacy is declared to be the right to govern all classes and orders, spiritual or temporal, and to punish the stubborn and the evil-doers with the temporal sword.20a

Yet in spite of all this, we should not be justified in assuming that the position taken up by the first supremacy act, which certainly bestowed ecclesiastical power, is to be abandoned. If we adhere closely to the actual texts of the legislative enactments which seem to favour an opposite view, we shall find that nowhere in them is it stated that the power of the king to govern the church is of a purely temporal character. In the thirty-nine articles such limitation is confined to his punitive powers. If, moreover, in the expression used in the injunctions, sovereignty and rule over all manner of persons' or in the words employed in the articles hoc est, ut omnes status etc. in officio contineant, the position of the king as controller of the temporal administration and his right to issue ordinances in temporal matters is included, why not also his right as controller of ecclesiastical administration and his right to make ordinances in things spiritual? There is, again, the fact to consider that in none of the legislative enactments referred to is the ecclesiastical jurisdiction previously expressly conferred on the king expressly abolished. On the contrary, both the injunctions of 1559 and the second supremacy act of Elizabeth describe the power claimed as being the same as that claimed and exercised by Henry VIII and Edward VI; the designation 'supreme governor of this realm in all spiritual and temporal things' loses its dual significance when we consider that it stands in the act which confers ecclesiastical power; finally, the phraseology in the thirty-nine articles is so like that employed in the injunctions and the other passages cited that we cannot suppose that something entirely different was to be indicated.

The reason of the ambiguity in the language used lay in the fact that there was still a desire, in order to appease uneasy consciences, to make the transference of new ecclesiastical powers to the crown as little marked as possible. But there was no intention of surrendering such powers. In point of fact, even after the issue of the injunctions and after the subscription of the thirty-nine articles had

26 Even Henry VIII expresses himself similarly in his letter to Tunstall. Cf. above, note 19.

26 Compare also the canon (not binding on laymen; § 14, note 16) 2 of 1604 (app. XII), according to which the same authority belongs to the English king quam pii principes apud Judaeos et christiani imperatores in primitiva ecclesia obtinuerunt, and canon 36' l.c. (now revoked), where the king is designated unicus et supremus gubernator hujus regni tam in omnibus

spiritualibus sive ecclesiasticis rebus aut causis, quam in secularibus.

เ

been required by statute, they were exercised just as before. To control the supreme administration of the church under the queen, a new authority was constituted in the High Commission Court'; the supreme power of issuing ordinances was employed by the queen when she published her injunctions, and was exercised, to a wide extent, by her successors for more than a century. If in the later enactments of which we have spoken the right of the king is called, in accordance with the formularies of the German protestants, supremacy over persons temporal and spiritual, whilst in the first supremacy act of Henry VIII and in the first supremacy act of Elizabeth, which follows closely the lines of the act of Henry, ecclesiastical authority according to prereformation ideas is ascribed to the sovereign, the difference is one of language and not of meaning. The present supremacy of the sovereign in England consists mainly in the possession of those rights-with a few doubtful exceptions-which were claimed by the Roman catholic church as ecclesiastical potestas jurisdictionis; the king has remained, in every respect, a layman, and has none of the rights which spring from consecration.

Side by side with the supremacy, wherein lies a right of cooperation, many rights still remained to the king as survivals from the middle ages. These medieval rights were rather rights of defending than of co-operating. So far as they had the former character they were not entirely fused with the supremacy; under the changed circumstances they served more rarely to defend the freedom of the civil power than to defend the individual's liberty of conscience against the might of the church.

The indefinite rights implied in the supremacy are now becoming less and less used; the crown confines itself almost wholly to interference in particular cases in which special powers have been conferred on it by statute. For the exercise of the right of issuing ordinances little room has been left since parliamentary enactments have settled the matters with which ordinances might have dealt; moreover, with the views which now prevail as to the rights of representative bodies, the king would hardly make any permanent ecclesiastical regulation without agreement with the convocations, although he is entitled to do so.27 The exercise of the right of supreme control in the administration of the church has been rendered more difficult by the fact that the authority before employed therein, namely the High Commission Court, has been abolished and the establishment of any similar authority forbidden. Here again it is the doctrine of the desirability of freedom for the church in the state which tends to restrict the employment of the rights involved in the supremacy.

27 For a case of an independent, royal ordinance in an ecclesiastical matter see § 15, note 23.

2. CIVIL AUTHORITIES ADMINISTRATION OF THE

FOR THE
CHURCH.

A. AUTHORITIES OF THE REFORMATION TIME.

§ 29.

a. Authorities for administering the revenues of the state from various ecclesiastical sources.

BEFORE the reformation the revenues drawn by the crown from ecclesiastical sources flowed into the same coffers as all other income. At the time of the reformation certain special authorities were temporarily established for the separate management of several forms of such revenues.

The first authority of this kind was created by 27 Hen. VIII (1535/6) c 27, to administer the property which fell to the crown through the first act for the dissolution of monasteries. It bore the name Court of the Augmentations of the Revenues of the King's Crown.' The later dissolution acts vested in it the administration of the property of monasteries, colleges, chantries etc. subsequently confiscated.1

32 Hen. VIII (1540) c 45 called into existence a second court, that of 'First Fruits and Tenths,' for the better management of the sources of revenue mentioned in the title and conferred on the crown by 26 Hen. VIII c 3.

By royal letters patent Henry subsequently ordered the abolition of the Court of the Augmentations of the Revenues of the King's Crown' and also of another civil court for the administration of domain lands, the Court of the general Surveyors of the King's lands; he also by letters patent vested the powers of both in a new authority, the Court of Augmentation and Revenues of the King's Crown.'3 Doubt having arisen as to the validity of these letters patent, they were expressly confirmed by 7 Ed. VI (1552/3) c 2.4

The same act prescribed, for the simplification of administration, that during the lifetime of king Edward there could be effected by letters patent alteration, fusion, abolition etc. of the Court of First Fruits and Tenths,' of the 'Court of Augmentation and Revenues.

131 Hen. VIII (1539) c 13 placed under this court the monastic property which passed to the crown after 4th Feb. 27 Hen. VIII owing to voluntary dissolution (not that owing to forfeiture)-both it and the earlier act are supplemented by 32 Hen. VIII (1540) c 20, which relates to franchises of former monasteries; 37 Hen. VIII (1545) c 4 s 7 assigns to its charge the property of various foundations falling to the crown under the act.

2

After preliminary steps in 14 & 15 Hen. VIII c 15 and 27 Hen. VIII c 62 this court received a fixed constitution by 33 Hen. VIII (1541/2) c 39.

s 34

of the latter act continues the competence of the earlier Court of Augmentacions.

31 Ed. VI (1547) c 14 s 19 conferred on this court the administration of the property of various foundations to be confiscated under the act.

s 1 of the act.

of the King's Crown,' as also of two other civil financial courts (the 'Court of the King's Wards' and the 'Court of the Duchy of Lancaster').5 The young king died before any such letters patent were issued; but similar powers were given to his successor by 1 Mar. st. 2 (1553) c 10, and the queen availed herself of them, abolishing both the Court of Augmentation and Revenues of the King's Crown' and the Court of First Fruits and Tenths' and vesting their competence in the 'Court of Exchequer.'

76

By 2 & 3 Phil. & Mar. (1555) c 4 the obligation to pay first-fruits and tithes was abolished, and the surrender of property in possession of the crown as a result of the confiscations was directed. 1 Eliz. (1558/9) c 4 repealed this act and revoked the direction to surrender; she did not establish again the several courts, but vested their powers anew in the court of exchequer."

§ 30.

b. High commission for ecclesiastical causes."

From 1535 to 1510 Henry VIII exercised the rights vested in him by the reform legislation generally and by the supremacy act of 1534 in particular, in so far as he did not personally avail himself of them, through a vicegerent, vicar-general and special and chief commissary,' whom he himself appointed, or through officials whom he or his vicar-general or both invested with special powers for particular occasions. During the latter years of Henry's reign, the whole of Edward's and the beginning of Mary's, the privy council conducted the supreme administration of ecclesiastical affairs. Apart from it, commissions of varying constitution were nominated mostly for temporary purposes (visitations, the deposition and re

5 S 2 of the act.

By four letters patent, two of the 23rd, two of the 24th Jan. in 1 Mar. Cf. 1 Eliz. c 4 s 1.

Charles II by letters patent of 24th Jan. in the thirty-first year of his reign bestowed the office of Remembrancer of First Fruits and Tenths in the Exchequer on Marmaduke Gibbs, his heirs and assignees. 3 Geo. I c 10 An Act for the better collecting and levying the Revenues of the Tenths of the Clergy created the office of a Receiver (Collector) of the Tenths, to be appointed by the king. Thus there was an Office of First Fruits which was part of the Exchequer and at the head of which stood the Remembrancer of First Fruits and Tenths, and also an Office of Tenths, managed by the Receiver of Tenths. 1 & 2 Vict. (1838) c 20 An Act for the Consolidation of the Offices of First Fruits, Tenths, and Queen Anne's Bounty abolished the two offices and the two officials just named, and entrusted the collection of first fruits and tenths to the treasurer of Queen Anne's Bounty.

The appointment of Crumwell as vicar-general and his empowerment to bestow authority on others were by letters patent of 1535. These letters patent are no longer in existence. Burnet, Hist. of Reform Ed. 1865 I, 293, is of opinion that two commissions to Crumwell, one first immediately after the supremacy act, the second and more comprehensive two years later, are to be

Gneist, Englische Verfassungsgeschichte § 31.-Reeves, Hist. of English Law Ed. 1814 ff. V, 216-218, Ed. 1869, III, 788 ff.-Stubbs, Historical Appendix I, pp. 49 f. Report of Royal Commission on Ecclesiastical Courts, 1883 (Parliamentary Reports, 1883, vol. XXIV).