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assumption that it is vain to look for legality in the years which followed the fall of Wolsey. Nor has any systematic effort been made to clear the ground even in works so important, because of having been largely drawn from the fountain-heads of information, as those of Burnet and Collier. It will probably be matter of surprise to most readers if they find, not only that a basis of legality, in its determining conditions, for the proceedings of the Reformation was laid during the tumultuous years of Henry the Eighth, but that it was laid before Cranmer and the reforming prelates had mounted into seats of power, and that it claims the authority of Warham, of Tunstal, of Gardiner, and (not to mention many others) even of Fisher.

I. I will now proceed to the proof of these propositions. And I must begin by reminding the reader that, in order to appreciate with accuracy the position assigned to the Church of England under the laws of the Universal Church by the great Elizabethan settlement, it is necessary to exclude from the arena of the discussion a multitude of topics, which have heretofore greatly encumbered the ground to the exclusion or the prejudice of the matters really relevant.

First we must disentangle the facts which determine the canonical character of the settlement from the crowd of great transactions, essentially political although with ecclesiastical or moral bearings, which mark the three preceding reigns; such as the socalled divorce of Henry the Eighth, which was a legal sentence of nullity pronounced on his marriage with Catherine of Arragon, the suppression of the monasteries, the reintroduction of Papal jurisdiction by the secular power, the sanguinary persecutions, and much besides. These have no bearing on the question whether the position of the Church under the settlement of Elizabeth was catholic or schismatical.

Secondly, we must in like manner put aside all the excesses of executive power, such as the appointment of Cromwell to the office of ecclesiastical vicegerent, the proceedings relating to altars under Edward the Sixth, and the exercise by the Privy Council of acts of ecclesiastical jurisdiction, which continued in the reign of Mary, and again under Elizabeth during the brief period that preceded the passing of the Acts of Supremacy and Uniformity.

Thirdly, we must discard from our consideration of the issue before us the private and personal opinions entertained either on religion generally, or even on the particular subject matter, by persons of more or less influence or authority. For example, the mitigatory explanations tendered by Henry the Eighth in 1531 to the clergy respecting the headship are only of importance in so far as they may have affected the conduct of prelates or others in the Convocation, and cannot govern the legal and constitutional meaning of the documents. The same remark will apply to the

observations of the clerical reformers in answer to the suggestions of Cecil which appear to have deterred Elizabeth from prosecuting her attempt to re-establish the first Prayer Book of Edward the Sixth at the period of her accession.

Fourthly, we must bear in mind that the legislation of Henry the Eighth and Edward the Sixth, swept away by Mary, was only restored in a modified form by Elizabeth, and we must carefully observe the modifications of that form.

Lastly and principally we have to note that there was throughout a double course of legislative or other public action, and to ascertain what is due to the secular and what to the ecclesiastical power. The distinction between the respective offices of the State and the Church is powerfully stated in the famous Preamble to the Statute of Appeals. Acts of the governing body in the Church, done within its lawful competency under Henry the Eighth, and not validly cancelled under Mary, retained their ecclesiastical force, and were as legitimate a foundation for civil action under Elizabeth, as they had been when they were originally passed.

II. In 1530–1, Henry the Eighth by legal chicane entangled the clergy in the penalties of Præmunire for having acknowledged the legatine jurisdiction of Wolsey. The commons were included within the scope of his extravagant propositions; but with them the matter was settled by a separate course of proceedings which are irrelevant to the present purpose. From the clergy he demanded (1) a great subsidy and (2) the unconditional and unlimited acknowledgment of his headship over the Church. Not, we have to observe, its enactment, but the acknowledgment of it as a thing already in lawful existence. To this they could not be brought to consent. But they finally agreed to it with a limitation expressed in the following words, which follow a recital of the services of Henry to the Church. Ecclesiæ et cleri Anglicani. . . singularem protectorem, unicum et supremum dominum, et, quantum per Christi legem licet, etiam supremum caput ipsius majestatem recognoscimus.' 2

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The limiting words, it will be noticed, apply to the term of headship only; and though they are important words they cannot be understood as annulling the whole force of the phrase. They were actually taken, and justly taken, to accept the headship in some substantial sense.

But the sentence branches into three divisions; and its force, as bearing upon the great controversy of ecclesiastical jurisdiction, is by no means confined to the phrases which touch the headship. According to the commencing words, the king is the singularis protector of the Church; and they hardly affect the question at issue, as they 'Strype's Annals, vol. i. Appendix.

2 Wilkins's Concilia, iii. 742, Feb. 11, 1530-1.

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seem manifestly to refer to action in the exterior forum. But the very different when we take the next limb of the sentence, which declares the sovereign to be the unicus et supremus dominus of the Church. These words, which excited no scruple on the part either of the prelates or the clergy, appear to indicate with great precision the idea of the relation between the Church and the sovereign, as it has been conceived in English law. They differ from the declaration of headship, inasmuch as they do not raise the same scruple in religious minds as to invasion of the prerogatives of Him whom the Scripture 3 proclaims to be the Church's head; but they agree with it in being sufficient to cover and even to require the exclusion of the papal, as of all extraneous, jurisdiction. They were in conformity with the doctrines already announced by Tunstal, and subsequently sustained by Gardiner in his book De verâ obedientiâ.

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In the convocation of the province of Canterbury, there was no opposition to the Concessio (so it was termed, I presume on account of the subsidy) as thus worded. When the president, Archbishop Warham, stated that silence was taken for consent, he was answered, 'Then we all are silent.'5 Unanimi igitur consensu,' says the record, utraque domus articulo huic subscripsit.' In the province of York, Tunstal, who presided, registered a dissent, not from the words themselves, but from a sense in which he observes that they had been malignantly understood. In this protestation, he limits the headship to temporals, and denies that the king is head next to Christ in spirituals: he submits the whole of the protest to the judgment of the Church (mater ecclesia); he makes no protestation or reservation whatever on behalf of the Pope. It would appear that either he limited his objection to the affirmative interpretation of the qualifying words (which treated the headship as positively set up by the law of Christ), or else that his opinions underwent some subsequent modification. For, when the headship had been enacted by Parliament in 1534 without substantial qualification and the bishops were required to swear to it, he both complied himself, and promoted the compliance of others.

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Warham, who appears to have been a principal agent in the accommodation based upon the qualifying words, at a later period (on Feb. 24, 1532) protested before witnesses against all statutes of the subsisting Parliament which were in derogation of the Pontiff or See of Rome, or which were prejudicial to the ecclesiastical power, or to the metropolitan church of Canterbury. But he does not retract or condemn in any particular the Concessio of the clergy which has been cited above. It is strange that this protest, such as it was, should not have been made in Parliament. It is still more

Eph. i. 22; Col. i. 18.
Wilkins, iii. 725.

Lingard, iv. 215. Wilkins, iii. 745.

Blunt, Hist. Church of England, i. 208. 6 Ibid.

s Wilkins, iii. 746.

remarkable that Fisher appears to have been an assenting party to the course of proceeding adopted in 1531. We are informed that he was one of the nine bishops actually present in the Convocation; and further that, after the Act of Headship had been passed by Parliament in 1534, and the Oath of Succession was framed by the king so as to include the headship, Fisher took it." It seems to be true that he had never admitted the so-called divorce; and on his trial he refused to swear to the headship in the terms demanded by Henry: but even as to him we have no evidence that he dissented from the terms of the Concessio of 1531. The whole body of the bishops with him took the oath. These are interesting matters of illustration. But of course the main argument depends on the corporate action of the Church.

Upon the whole it appears that the Recognition of 1531 was a solemn instrument of the kind known as declaratory; that it was no mere submission to violence, but the result of communications ending in a deliberate arrangement; that it was followed in and after 1534 by the less formal but even wider acknowledgments of the episcopal body at large; and while some allowance must be made for royal pressure, that it was expressive of that aversion to the papal jurisdiction which had spread generally among the English clergy, and which was altogether distinct from the desire for doctrinal reformation. In further proof of the sentiments of the clergy with respect to papal jurisdiction, we may refer to their perfectly voluntary, if suggested, petition in Convocation during the year 1531, for the abolition of Annates, or episcopal first-fruits. The petition 10 prays that, if the Pope should persist in demanding the payment, then and until he cease from such demand the obedience of the king and people be withdrawn from the See of Rome,' as in like case the French king withdrew his obedience of him and his subjects' from Pope Benedict XIII. Accordingly it was enacted by 23 Henry VIII. c. 20, that in case the Pope should attempt to enforce such payment by excommunication, interdict, or otherwise, the proceeding should be treated as null, and all divine services carried on in the usual course.

By the 26 Henry VIII. c. 1, passed in November 1534, this recognition by the clergy in their convocations' is recited as a recognition of the headship without qualification; and although, according to the opening words of the statute, it exists already, nevertheless, for corroboration and confirmation and the increase of virtue,' it is also enacted. And this act was at once followed by 26 Henry VIII. c. 13, which made it high treason to deprive the king, queen, or heirs apparent of the dignity, title, or name of their royal estates.'

• Burnet's Hist. i. 206. Also see Sanders, De Schism. Anglic. pp. 106-7 (ed. 1586); and Brewer, Letters and Papers of Henry the Eighth, v. No. 112, p. 50.

10 For this important document see Wilkins, iii. 760, and Blunt's Ecclesiastical History, i. 250-3.

The Act declaring the headship gave no power to impose an oath. But such a power had been given by the Act of Succession (1533) for the purposes of the Act; and Henry, by an act of will, enlarged the oath so as to include the supremacy in the double form of the royal headship and the exclusion of the papal jurisdiction. The bishops were now required to swear to it. Lingard says that, though with different motives, Sampson and Stokesley, Tunstal and Gardiner exerted themselves to promote this purpose; the prelates seem to have sworn without exception; and the Convocations had already arrived at the conclusion that the Pope had not any jurisdiction conferred upon him by God, in this realm of England, than any other foreign bishop.' Such was the language of the Canterbury Convocation in March 1534. That of York passed a declaration in somewhat different words but apparently with the same meaning.

III. It is common to represent the antipapal movement under Henry VIII. as having been due simply to the keen desire of the king for the divorce. If any other concurrent causes are taken into view, they are the cupidity of the aristocracy, the indifferent state of the monasteries, which had led Bishop Fox, in founding his college of Corpus Christi, to take into view the evident approach of their ruin, and the existence of a latent vein of Lollardism in the country. It is probably true that, but for the divorce, Henry would have continued in that mood of warm attachment to the papacy, which led him so highly to exalt its prerogatives in his controversy with Luther, as to draw down on him the warning expostulation of Sir Thomas More. Consequently it cannot be denied that, in the actual evolution of events, the King's resolution to obtain the divorce was an essential factor, and it may have been with him the governing cause. But it is surely now plain that, among the instruments ready to his hand, there was a widespread aversion of the clergy, in its different ranks, to the working prerogatives of the Roman See, which may be referred in part to impatience of taxation, but which obtained even with some of its highest, purest, and ablest members, and which probably stands in historical continuity with much earlier manifestations of the national sentiment both in Church and State, such as the Statute of Provisors, and the Constitutions of Clarendon.

The tyrannical threat of the Præmunire in 1530-1 might have had a sufficient motive in the prodigality of the king, which required to be fed by an extravagant subsidy. It is not at first sight so plain why to the grant of the subsidy should have been tacked the acknowledgment of the headship. There was no ostensible plea for the introduction of the subject. There was not a single reforming bishop on the bench. The words of the Concessio give emphasis to the theological performances of the king, which had been markedly 11 Hist. Engl. iv. 215.

12 Collier's Hist. iv. 266.

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