Bicknell on Article XXXVII: Of the Civil Magistrates

(a) We find in Scripture no formal discussion of the relations between Church and State. As we have seen, the Church is there pictured as a society with a life of its own, drawing a sharp distinction between those within and those without, exercising over its own members judicial authority in its own courts according to its own laws. Nothing is clearer than that the rules of the Church in no way depended upon the authority of the State. For instance, the Roman Empire had its own laws of marriage binding upon all its subjects alike. But the Church had her own far stricter laws of marriage based upon the teaching of Christ. These St. Paul claimed to enforce upon Christians. At the Council of Jerusalem definite rules were made on subjects about which the laws of the Empire had no

concern, ¢.g. fornication and eating certain kinds of meat. On all questions of discipline and order the Church claimed to interpret the will of Christ under the guidance of the Spirit and demanded from her members obedience to her interpretation. She acted upon her own authority.

But since the Church existed within the Roman Empire she could not escape all relationship with it. In the very early days Christians would be regarded simply as a new Jewish sect. They shared the toleration accorded to Judaism. But it soon became apparent that Christianity was more than a reformed Judaism. As the Church developed an independent existence and a vigorous life of ber own, conflict with the State became inevitable. The Roman Empire had a great suspicion of all smaller societies within itself. Christianity was a religion not sanctioned by law. The Church’s very existence might at any time lay her open to the hostility of the State. Further, the State required of all who were not Jews a willingness to participate in idolatrous worship, especially the worship of the Emperor. Such commands Christians, out of loyalty to Christ, could not obey. Their refusal appeared an act of disloyalty to the Emperor. Again, civil and social life were so bound up with idolatry that it was almost impossible for Christians to take part in it. They were made to appear unsocial and unpatriotic. Hence arose persecu- tion and the attempts to compel Christians to do sacrifice. Even the most reluctant witness must confess that under such circumstances obedience to Christ was inconsistent with obedi- ence to the State.*

At the same time, the Church had no hostility to the State as such. By His example and teaching Christ Himself had inculcated loyalty to the civil power in its own sphere. He showed that Caesar’s head on the coinage implied the duty of paying taxes to Caesar. There was no necessary conflict between the claims of Caesar and the claims of God (Mk. 12° ff.). He submitted Himself to the authority of Pilate as being given to him from above (Jn. 19”), so long as he acted within the limits of his office (Jn. 18°° ff.). St. Paul commands whole-hearted obed- ience to the civil authority. ‘The powers that be are ordained

of God ’ (Ro. 13!”). St. Peter ends up a long exhortation on the respect due to the State with the injunction (1 Pet. 21°17), ‘Honour the king ’—a hard duty when Nero was on the throne. It is true that in the Apocalypse we find denunciation of Rome as the persecutor of Christians (Rev. 13 and 17). Pergamum, the centre of the cult of the Emperor in Asia Minor, is ‘ where Satan’s throne is’ (21%). But this was hostility not towards the Empire as such, but towards the Empire as persecuting Christians. In early Christian writers we find side by side professions of loyalty to Emperor and bitter denunciation of persecutors.*

(6) The accession of Constantine ushered in a new era. The State had failed to suppress the Church. Constantine saw that the only course was to make an alliance with the Church. © Relations became openly friendly. By the edict of Milan universal toleration of all religions was proclaimed. The laws of Constantine were tinged by Christian morality, but they were not specifically Christian. The clergy were given equal privileges with pagan priests. The Church was allowed to receive gifts. During the lifetime of Constantine paganism was discouraged and immoral worship put down, but it was left for his successor to issue definite edicts against heathenism as heathenism. But very soon we find evidence of a tendency to be content no longer with a mere alliance of Church and State, but to aim at some- thing like identification. The State was ready to purchase the support of the Church by lending the support of the secular arm for the suppression of heretics or heathen. Before the close of the fourth century heresy and paganism had become offences against the civillaw. Further, the State began to find in bishops valuable civil servants and to assign to them a share in the civil administration. The Church had in time to pay the price. If the Church’s laws were enforced by the power of the State upon those who defied them, the State might not unreasonably claim a voice in the making and amending of such laws. If a bishop was an important government official, the State might not unreasonably expect to be consulted in his selection and appoint- ment. Above all the Emperor’assumed a position of supreme importance in the Church. Ifa heathen Emperor was a minister of God, a Christian Emperor was ‘the Lord’s anointed,’ endowed with an almost priestly office. Even Constantine could say,

• H.g. Tertullian (ad Scap. 2).

‘You are bishops of matters within the Church : I also am the bishop ordained by God of matters without the Church.’ The line of distinction between the Church and the State became more and more obliterated. A new ideal grew up of a great Christian commonwealth, at once State and Church, like Israel of old. Heresy was regarded not only as disloyalty to the Church but as treason to the State. Old Testament notions were freely applied. The State and the Church were regarded as two aspects of one visible Christian society, ‘the City of God.’ So far as the old conflict between State and Church survived, it passed into a conflict between the civil authorities and the spiritual authorities, regarded as different classes of officials in one and the same society. Since we are still suffering from the effects of this fusion of Church and State, it may be well to pause and consider some of the features of the change.

For an account of the changed relations between Church and State

see:

Hobhouse, The Church and the World, Lectures III and IV. Crosse, Church and State, c. iv.

(i) The first result was a confusion between the principles of civil and the principles of ecclesiastical authority. The State has not only the right but the duty of compelling obedience to its laws, if need be, by methods of force. Such laws are binding upon all its subjects alike. On the other hand the Church, if she is loyal to the teaching of Christ, can only enforce obedience to her laws by spiritual penalties, in the last resort by expulsion from her fellowship. Further, she can only claim such obedience from her own children. Persecution and the employment of force to compel men to come into the Church or to submit to her laws is wrong and contrary to the spirit of the Gospel.* The source of all the Church’s life and order is loyalty to Christ, and personal adhesion to Christ cannot be brought about by compulsion. If by persecution the Church could make men Christians, the Church would be right to persecute. But methods of force can only make nominal Christians: they cannot create a lively faith. The immediate result of the identification of Church and State was to flood the Church with nominal Chris- tians. It cost less to profess to be a Christian than to make no profession.

(u) Further, the authority of the Church should go deeper than that of the State. Civil legislation can never go very far in advance of public opinion. The State should indeed enforce the principles of universal morality. It has been well called ‘the armed conscience of the community’: but just because the community contains many who are not prepared to accept the full Christian standard of living, the State cannot go beyond the public conscience of the day. The Church, on the other hand, is bound to enforce upon her members the full moral teaching of Christ: she asserts not only those laws of morality that the State asserts, but others which it would not be reasonable to expect any who are not Christians to accept. The confusion between the laws of the Church and the laws of the State inevit- ably resulted in a lowering of the Christian standard. The attempt to enforce full Christian morality could only end in failure. In popular practice the moral demands of Christ were identified with the average morality of the day—the morality of a world that had become Christian only in name. A double standard of Christian practice was set up. Full Christian morality was expected at most from the clergy. The laity were to be content with something less exacting.

(c) In mediaeval times the relations between Church and State were dominated by ideas that were inherited from earlier days. In theory the Emperor and the Pope were the two heads of one ‘Holy Roman Empire.’ In England the same ideal was repro- duced in miniature. In Saxon times there was very consider- able confusion between Church and State. There were no separate Church courts and no clear distinction between national and ecclesiastical assemblies. The fellowship between Church and State was so intimate and their mutual understanding so complete that there arose no necessity for any exact definition of their relationship.* With the coming of the Normans England was brought into closer connexion with the Continent and the papacy. A separation was effected between civil and ecclesiastical courts. A distinction was recognized between the canon law which was administered in the Church courts and the common law which was administered in the the civil courts. But Church and State were none the less identified. Every Englishman was regarded

as ipso facto a member of the national Church. Whatever laws existed were enforced upon all Englishmen alike. Breaches of the Church’s law were punished by civil penalties and breaches of civil law by ecclesiastical penalties. Excommunication involved not only loss of Church privileges but loss of civil rights.* When the Church claimed to withdraw her officers from the jurisdiction of the civil courts and to try them in her own courts, there was no idea of any rebellion against the State. The claim is rather to be viewed as a dispute between two sets of officials of one single Church-State as to the limits of their respective jurisdiction. Church and State were not even regarded as two distinct societies composed of the same people, but as one great all-embracing divine society. The quarrels between kings and bishops were quarrels between heads of two departments in one community.t

This mediaeval point of view was destined to be shattered by the Reformation, but it explains many of the features of that troubled time. All parties persecuted because all parties could have no conception of a state of society in which more than one religion was tolerated. Catholics and Protestants agreed that Church and State must remain coextensive. They differed as to the nature of the Church that they desired. Even the Puritans for a long time did not wish to separate from the Church of England: they wished to change the Church of England into the kind of Church that they preferred and to make all English- men submit to it. Hooker can still write: ‘There is not any

*It is from this point of view that we must consider persecution, namely, as the lending to the Church by the State of the force of secular authority in order to compel obedience to the Churca’s authority on questions of doctrine or practice. So in 1400 Parliament supported the Church by passing a statute for the burning of heretics, and fourteen years later by a supplementary Act put at the aisposal of the Church the organization of the State for hunting out the Lollards. Heresy was regarded not only as disloyalty to the Church but as disloyalty to the State.

• ‘The word Churchman means to-day one who belongs to the Church as against others. In the Middle Ages there were no others, or if there were they were occupied in being burnt. A Churchman meant one who belonged to the Church in the narrower sense of its governing body—an ecclesiastic, as the word implies ; just as statesman to-day means not a member but an officer actual or potential of the State ’ (Figgis, Churches in the Modern State, p. 189). There were, of course, the Jews, who carried on a precarious existence without any assured rights, dependent upon the caprice or the poverty of the ruling classes. But no mediaeval Christian would have taken much account of the Jews.

2L

man of the Church of England but the same man is also a member of the commonwealth ; nor any man a member of the common- wealth, who is not also of the Church of England.’ * Hooker did not suppose that the Church’s spiritual authority was derived from the State or that the Church was simply a Government department for dealing with religion. But his eyes were blinded by the traditional thought and customs of centuries. He could not conceive of a day when Church and State should no longer be coextensive. Moreover, in Elizabeth’s day it was easy to confuse the desire for national unity against external foes with the desire for the religious unity of the English nation. But even while Hooker wrote, his theory was breaking down. Elizabeth was, in practice, compelled to tolerate nonconformists even though they had to endure severe restrictions. Since her day the idea that the Church of England is simply the ‘ nation on its religious side’ has become more and more contrary to the facts. The spread of toleration has wrecked any identification of Church and State. Quite rightly we enjoy the fullest toleration of all religious beliefs. With a very few exceptions the fullest rights of citizenship are granted to men of every creed or none. Accordingly a new situation has arisen, demanding a fresh consideration of the relations between Church and State.

§ 2. We may now turn to the changes in the relations between Church and State made at the Reformation.

(a) As we saw, the Church assigned to the Christian Emperor a unique position. He was regarded as the Lord’s anointed, the successor of the sacred kings of Judah. In mediaeval theory the Emperor was the coequal head with the Pope of the City of God. So, too, in England there has been from the first a very real Royal Supremacy. It was in no sense created at the Re- formation. Our Article asserts no new doctrine when it claims for Hhzabeth ‘that… prerogatwe which we see to have been gwen to all godly princes in Holy Scriptures by God Himself, that they should rule all estates and degrees committed to their charge by God, whether they be Ecclesiastical or Temporal and restrain with the cwil sword the stubborn and evildoers.’ In practice the Royal supremacy was exercised in the following directions :

(i) The King regarded himself as the guardian of justice within his realm. It was his duty to see to the safety of the bodies

• Heel. Pol. viii.

and property of his subjects. Their souls were in the care of the Church. As such he claimed to prevent any external power, such as the Pope, from exercising authority over persons or property within his kingdom, except by permission.* Further, he saw that the Church obeyed her own laws and did not encroach upon the authority of the State. New canons could only be made subject to the King’s approval. The Supremacy ‘ was essentially, therefore, a regulating force, the function of which was to decide in what spheres and under what conditions the spiritual power which it recognized as independent in origin and authority should act.’ + The King did not claim any spiritual authority. Rather he supervised the administration of Church from outside.

(ii) But the King was no less the first layman of the Church and her champion. As such it was his duty to protect the Church and see that she had free scope for her work.

(6) We must consider the changes made by Henry VIII in the light of such ideas as these. What changes were actually made ?

(i) The authority of the Pope was disallowed. In theory the jurisdiction claimed by the Pope was purely spiritual. The term “ papal supremacy’ came to be used only after his power in England had come to an end. ‘From the point of view of the King it was simply a part of the Church system which he allowed or disallowed so far as it seemed harmless or harmful to the realm at large.’ { No doubt there were times, especially between the eleventh and fourteenth centuries, when the Pope claimed temporal authority in England. A weak King was not above purchasing the support of the Pope by allowing his claim to bestow the crown of England on whom he would. But any such recognition of papal authority was vigorously repudiated, e.g. in the statute of Praemunire, and was never generally allowed. So the relation of the Pope towards the English Church was a

*Tn theory, at least, no appeal might be made from the Church courts to Rome without the royal permission. Papal legates needed the King’s consent before landing in England. English bishops could only act as papal legates with the King’s sanction.

• Wakeman, History of the Church of England, note D.

t Collins, C.H.S. Lectures, III. p. 34.

spiritual relation. There is no denying that, especially at certain times, he exercised very considerable authority over the English Church. It became customary for archbishops to receive from him the gift of the Pallium and to take an oath of obedience to him on receiving it. He often filled vacant sees. Appeals of all kinds were made to him. The theory came to be held that canon law derived its authority from the Pope, and hence the Pope and the Pope alone could dispense from it. Accordingly, we find an exceedingly strict and logical system of Church law which was in practice never observed, because it could be evaded by dispensations. Its strictness was only a source of profit to the papal officials. When we consider the very wide field that this system covered, we can see that the power of dispensation gave to the Pope immense political importance, e.g. in the matter of marriages. The immediate cause of Henry’s breach with Rome was the refusal of the Pope to declare his marriage with Catherine null and void, and that refusal was based on purely political calculations. But England was tired of papal exactions. The loyalty of the Church to the Holy Father had expired under the burdens that he had laid upon her. In 1534 Convocation declared that ‘The Pope of Rome hath no greater jurisdiction conferred on him by God in Holy Scripture, in this kingdom of England, than any other foreign Bishop.’ The Church of Eng- land claimed that such jurisdiction over her as he had enjoyed had only been by her free consent. He had proved himself unworthy to exercise it, and therefore, since she was in no way bound to bestow it, it was taken away. This repudiation of papal authority was an act of the whole Church and was enforced by the Crown. ‘The civil power forbade, under penalties, any recourse to the authority which, as a matter of fact, the Church of England had just repudiated.’ *

(11) In 1531 Henry, in order to ensure the submission of the clergy, demanded the consent of Convocation to a new form of title. He claimed to be ‘Supreme Head of the English Church and Clergy.’ The title was accepted by Convocation, with the important qualification, ‘so far as the law of Christ allows.’ In a letter addressed to the Northern Convocation, Henry ex- pressly disclaimed any new authority in spiritual matters. In 1534 he was recognized by Parliament as ‘only supreme head

on earth of the Church of England.’ Further, in the same year the act for the submission of the clergy gave the authority of Parliament to arrangements already agreed to by Convocation in 1532. Convocation had consented that it should only meet by the King’s writ and that new canons might only be promulgated by the King’s license. On the other hand, the King’s assent to the meeting and the promulgation of canons was not to be with- held arbitrarily. So far nothing revolutionary had been done. The novel title “Supreme head’ was capable of a good inter- pretation.* The control claimed by the Crown over ecclesiastical legislation was no greater than had been claimed by earlier kings: it was only made more positive and definite. On the other hand, ‘ Although it is true that nothing had been done except to define and formulate rights of the Crown in relation to the Church which had been frequently insisted upon and exercised in past ages, still it was equally true that their revival and exercise by a King of the character of Henry VIII at a time in the history of England when kingly authority was excep- tionally strong, practically introduced a new state of things. There was no new principle involved in the relations of Church and State, but the mutual influence of the two bodies upon each other was altered.’ f

(iii) But the use by Henry VIII of his supremacy did not stay here. The Act of Supreme Head in 1534 included among his powers ‘full power and authority… to visit, repress, redress, reform, order, correct, restrain and amend all such errors, heresies, abuses, offences, contempts and enormities, whatsoever they be, which by any manner spiritual authority or jurisdiction ought or may lawfully be reformed … or amended.’ This implied a claim not only to supervise the fulfilment of their proper duties by spiritual authorities but also himself to exercise spiritual jurisdiction. This new claim was exercised without any

• Cranmer, indeed, in his examination shortly before his death gave a very mild interpretation of the title: ‘Every king in his own realm is supreme head. .. . Nero was head of the Church, that is in worldly respect of the tem- poral bodies of men, of whom the Church consisteth : for so he beheaded Peter and the Apostles. And the Turk, too, is head of the Church of Turkey. … The king is head and governor of his people which are the visible Church… wherein he was named supreme head of the Church, there was never other thing meant.’

• Wakeman, History of the Church of England, p. 215.

hesitation or scruple. After being dropped by Mary, it was revived by Elizabeth in the form of the Court of High Commission, which was only finally abolished in 1641. Further, in 1535 Henry delegated his powers to Cromwell, who carried out a visitation in the King’s name. This was only one act that showed that the Crown claimed to govern the Church just in the same manner as it governed the State. There is no need to enter into details. It was a period of constitutional anarchy in Church and State alike. The Church was powerless in Henry’s hands. He was restrained by no scruples from carrying out his will. No precedents for the use of the Royal Supremacy can fairly be quoted from such a time.

(c) The use of the title ‘Supreme Head’ was continued by Edward VI and by Mary up to the time of her marriage with Philip in 1554. It was then dropped and has never since been revived. When Elizabeth came to the throne in 1558 she only claimed the title ‘Supreme Governor.’ The ‘Supreme Head ’ statute was never re-enacted. She was unwilling to be addressed as the head of the Church of England, maintaining ‘that this honour is due to Christ alone, and cannot belong to any human being soever.’ Accordingly the old Article was very largely rewritten, and our present Article simply explains the title ‘Supreme Governor ’—‘ We attribute to the Queen’s Majesty the chief government.’ Elizabeth took the greatest pains to define and limit the constitutional meaning of her supremacy. In 1559 she appended the Injunctions, ‘An admonition to simple men deceived by the malicious,’ referred to in our Article. This, in very similar language to the Article, insisted that she only claimed the authority ‘ of ancient 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 they be, so as no other foreign power shall or ought to have any superiority over them.’ Further, the Queen wrote with her own hand the addition to Article XX stating that ‘ The Church’ (not the Crown) ‘ hath power to decree rites and ceremonies and authority in controversies of faith.’ In the Royal Supremacy, as defined in our present Article, there is nothing to which the Church can reasonably object. In practice it includes the following claims :

(i) No Englishman can claim to be withdrawn from the jurisdiction of the Crown in virtue of any office that he may hold in the Church. The Crown is to rule ‘ all estates and degrees committed to their charge by God, whether they be Ecclesiastical or Temporal.’

(ii) The King is to be the guardian of all forms of justice. In the civil courts judges act in the King’s name. They receive authority not to make but to interpret and administer laws. So in the enforcement of the Church’s laws, the King, in virtue of his sacred office as first layman, is to dispense justice. That does not mean that he makes the laws of the Church or can alter them, but that he undertakes to see that the Church observes her own laws and that justice is meted out in accordance with them.

(iii) It is his duty to keep the balance between Church and State and to see that each side faithfully observes its side of the compact. Thus Queen Elizabeth in 1572 forbade Parliament to discuss bills concerning religion ‘ unless the same should be first considered and liked by the clergy.’ Again, in 1593 she wrote to the Speaker : ‘If you perceive any idle heads … which will meddle with reforming the Church or transforming the common- wealth and do exhibit any bills to such purpose, that you receive them not, until they be viewed and considered of those who it is fitter should consider of such things and can better judge of them.’

§ 3. The relation of the Church of England to the State to-day can only be understood in the light of previous history. It is not the result of the consistent working out of any theory, but of gradual growth and development. Much that appears at first sight illogical and absurd is a survival from past days when conditions were very different from the present.

(a) We find the Crown in possession of considerable authority in Church matters. We saw how from the time of Constantine such a position was given to the Christian King. This position was a personal one. It was given to him as a loyal son of the Church, ‘a godly prince,’ at a time when princes governed in person. Further, it was no arbitrary or unlimited power that was bestowed, but it was assumed that the King would exercise it subject to certain limitations and with due respect to the Church’s own rights and laws, according to precedent and

custom.* To-day the personal position of the King has completely changed. The real power has been transferred to the Prime Minister, the Cabinet and Parliament. The King no longer governs in person. As Churchmen we maintain that this has made all the difference. The King has no moral right to delegate the authority given by the Church to him personally, as the ‘eldest son of the Church,’ to some secular official or body, whose relation to the Church in no way resembles his own. The Prime Minister is not bound to be a Christian. The Cabinet or Parliament may contain at any time a majority of Jews or agnostics. Further, there is a tendency to regard the authority of Parliament as absolutely unlimited, even in dealing with the Church. The respect for the Church’s independence which was tacitly implied and acted on in the original relationship to the Crown is in danger of being ignored.f

(b) A clear instance of the fruits of-this change is seen in the appointment of bishops and the exercise of Crown patronage. It was one thing for the King as first layman of the Church to nominate bishops. It is quite another thing for a Prime Minister who may not be a churchman to do so. No doubt this implies no claim on the part of the Crown to bestow spiritual authority. The man nominated receives his spiritual authority solely through consecration.t But logically the system is quite indefensible. It

• ‘Legally the position of the Crown in the civil government is not much changed from the days of Edward the Confessor: politically and constitu- tionally it is altogether changed. As a power it is a ministry or a Parliament : as a person, the Crown stands at the head of a nation, like all other nations broken up into recognized and tolerated parties, and is bound to neutrality… . Statesmen cling with inconsistent tenacity to a notion of ecclesiastical supremacy entirely different from that which they entertain of temporal: and are taken aback at the idea of limitations in the one, which they have all their lives assumed as first principles in the other’ (op. cit. p. 51).

t The actual process is this. The Crown nominates a man and issues a writ commanding the chapter of the diocese to elect him and the archbishop to confirm the election. Disobedience would legally incur severe penalties. But resistance has more than once been threatened, and the possibility of it is a

can only be urged that on the whole it works very well. Prime Ministers of all parties have of late years conscientiously tried to find the best men. It avoids the creation of anything like parties in a diocese supporting rival candidates. But we must remember it may cause trouble at any time. An unscrupulous Prime Minister might force a conflict upon the Church by a series of political choices or the deliberate selection of an unorthodox candidate.

(c) A more serious grievance is the present inability of the Church to legislate for herself. All newlegislation requires the con- sent of the Crown, of Convocation representing the clergy, and of Parliament. In old days Parliament was in a real sense a ‘ House of Laymen.’ All members were churchmen and were elected by churchmen. As representing the laity they could rightly claim a voice in Church legislation. To-day, as the result of toleration, there are quite rightly no religious tests either for members of Parliament or for electors. Under present con- ditions there is nothing to prevent the majority of members from being Roman Catholics, Nonconformists, Jews or atheists. Yet all fresh Church legislation, on however sacred or domestic a subject, requires their consent before it can be enforced.* The result is disastrous. Parliament has already more than enough business to occupy all its time. As Church measures, however beneficial, are not a source of party profit, time is grudged for their discussion. It is in the power of a single member to oppose the passing of any measure of Church reform. If such opposition is made, unless the Government grant special facilities for the measure, which is unlikely, the reform, however urgent, is in- definitely postponed. The enemies of the Church deliberately block the Church’s proposals in order to prevent her from in- creasing her efficiency and reforming those abuses that weaken her life.t Our claim is that men who do not profess the Christian

certain safeguard. In 1733 the appointment of Rundle to the bishopric of Gloucester was successfully opposed on the ground of Deism. He was consoled with a bishopric in Ireland !

• We may in ‘tance the opposition offered to the Bill for new bishoprics.

religion or who belong to bodies that have deliberately separated themselves from the Church and organized themselves in opposi- tion to her, have no moral right to interfere in matters that belong to her own internal life and organization. The whole situation is a relic of the days when every citizen was a member of the Church.* Attempts have even been made to pass measures affecting the Church’s discipline without the consent of Con- vocation. Fortunately they have failed.

A further difficulty, which freedom to legislate would soon clear up, is that it is by no means easy to determine what the law of the Church is on many points. During the Middle Ages the Church of England accepted the canon law of the Western Church with a certain amount of local canon law. In origin this canon law was partly the customary law of the Church, partly the decisions of councils, partly the decrees of Popes either genuine or forged. At first it simply represented the mind of the Church as declared in her decisions on particular cases with references to particular circumstances and was observed only in so far as it was enforced by the bishops, and thus con- tinued to represent the mind of the Church. In time this was systematized and came to be viewed as resting not on the mind of the Church but on the authority of the Pope and was adminis- tered as a legal system.f When the authority of the Pope was repudiated, the system was shattered. A return was made to earlier principles. Much of the old canon law no longer repre- sented the mind of the Church and was therefore rightly abolished. A revision was needed, and a committee was appointed to make such a revision with a view to giving it the authority of statute

• We may compare the position in a parish. Every ratepayer, even though an open enemy of the Church, can vote for the election of a parish church- warden, who is at once an official of the Church and of the parish. This, again, is a survival of the time when all parishioners were members of the Church.

• Speaking of Gratian’s Decretwm, the standard collection of canon law, Bp. Collins writes: ‘The most important thing to be noticed with regard to the Decretum is that it embodied an entirely new theory of canon law which had been growing up insensibly in the West, as little by little the Church adopted the ways of the Empire, and the Pope claimed the autocracy of the Emperor. The mediaeval Church had become a State: its law had come to be regarded as analogous to civil law, and as deriving its force not from the assent of the law-keeper but from the centralized authority of the law-giver, the Pope.’ (The Nature and Force of Canon Law, p. 20. For a history of canon law see Dixon, vol. iii. pp. 353-361. Cp. also Creighton, C.H.S. Lectures, VII. p. 9 ff.)

law. Till then the old canon law was declared still binding on the clergy ‘so far as it be not contrary to the statutes of the realm.’ An attempt at revision was made, the ‘ Reformatio Legum Keclesiasticarum,’ but it never received authority, so that we are theoretically bound to what was left of the old canon law. This position is, however, modified by three considerations: (i) Much of the old law was deliberately abrogated by the Church’s own acts during the Reformation and the laying down of new rules of worship, e.g. the restoration of communion in both kinds and the abolition of compulsory confession. (ii) It is a principle of canon law that it is abrogated by ‘ desuetude,’ ae. by the deliberate giving up of a practice or by the adoption of a definite practice to the contrary. This is evidence that the law abrogated no longer represents the mind of the Church. Much of the old law has in this way ceased to be authoritative. In other words, the present canon law of the English Church is that which the English Church to-day as a matter of fact uses. (c) From time to time the Church of England has made new canons, e.g. those of 1604, and changes have been made in the Prayer-Book. Quite lately fresh canons have been passed, on questions that did not provoke opposition.

Still, the fact remains of the inability of the Church to legislate for herself. The uncertainty of the success of even the most

essential measures of reform hampers her efficiency and tends to produce stagnation.

(d) Yet another disturbing result of the transference of authority from the King to a secular body is seen when we turn to the disciplinary system of the Church. In the Middle Ages the Church had her own system of courts, the archdeacon’s, the bishop’s, the archbishop’s.* Appeals could be made from a lower to a higher court. In practice appeals were carried from the archbishop’s court to the Pope, in spite of many efforts to check this by legislation. In fact, in order to save time and trouble appeals were often made to the Pope in the first instance. The result of this custom and of the centralization of authority in the Pope was to weaken the Church courts. They naturally tended to fall into disuse, being superseded by papal jurisdiction.

• We must remember that Church courts dealt with a very wide range of cases. They included not only questions of Church discipline and property, but, ¢.g. marriages and wills.

At the Reformation appeals to Rome were forbidden. It was laid down in the statute of the Submission of the Clergy that they should be made to the Crown instead, and that the King should on each occasion appoint a court of commissioners to try the particular case. This was only intended as a temporary measure, until the reformation of canon law was completed and the system of Church courts reconstituted. As we have seen, this reform was never carried through, and the Crown by repeated use of its powers acquired the right of appointing the members of a final court of appeal for ecclesiastical cases known as the Court of Delegates. The position of such a court, so long as ecclesiastics were appointed, might be perfectly satisfactory, though there was no guarantee that it would be so. But in 1833 by Act of Parliament, without the consent of the Church, as the result not of any deliberate policy, but of a series of accidents, muddles and misadventures, the jurisdiction of the Court of Delegates was transferred to the Judicial Committee of the Privy Council. This committee is a purely civil body, originally called into being for purely civil purposes. It may consist entirely of lawyers who are not even Christians and may possess no sympathy with the life of the Church and no quali- fications for deciding on questions of doctrine, which call for more than a merely legal knowledge. So by an Act of very doubt- ful authority the judicial supremacy granted to the King person- ally as a churchman has been transferred to a purely secular court. Its unspiritual nature is sufficiently shown by the fact that it cannot inflict those spiritual punishments which are the only fitting penalty for grave cases of spiritual disobedience, such as excommunication or deprivation of orders.* The appointment of two bishops to act as assessors since 1876 cannot turn a civil court into a spiritual court. Hence churchmen have as a matter of conscience widely refused to recognize the authority of this court. They hold that, ‘ The Crown being supreme over all causes has the right to appoint such a court’ (7.e. a court of final appeal). ‘But this right must be exercised in accordance with the Church constitution, otherwise the court will lack spiritual authority, which can only be derived from the Church, and therefore its decision cannot be accepted as valid.’ + The

Church of England is placed in the unhappy position of having no final court of appeal for questions of Church order and dis- cipline whose decisions are binding on the conscience of all her members. The result is disciplinary chaos tempered by episcopal good advice and a practical disuse of ecclesiastical courts. Much is said about ‘clerical lawlessness.’ Such lawlessness can only be remedied by a revival of a proper system of Church courts.* It is well also to remember that lay members should equally be subject to Church discipline. Our present unhappy condition is partly a legacy from days when civil and ecclesiastical courts were looked on as parts of the judicial system of one single Church-State, partly the result of the transference to the Crown of powers that had been seized by the Pope, partly the result of sheer dulness of imagination. But the Church of England can never do her work satisfactorily until it is remedied.

(ec) It may be perhaps urged that these conditions are the inevitable result of Establishment. The reply is that they are not the result of Establishment as such, but of the unfortunate terms on which the Church of England is established. We have only to turn to Scotland to see a Church there established on very different terms. The Established Church of Scotland appoints its own chief ministers : it is free to legislate for itself, and such legislation is recognized as valid by the civil courts : it possesses a complete system of Church courts, with a final court of appeal possessed of due spiritual authority. It com- bines establishment with spiritual autonomy. Further, there has been much confusion about the meaning of ‘established.’ The

*Cp. The Report of the Royal Commission on Leclesiastical Discipline, c. x., esp. the following sentences : ‘A court dealing with matters of conscience and religion must, above all others, rest on moral authority if its judgments are to be effective. As thousands of clergy, with strong lay support, refuse to recognize the jurisdiction of the Judicial Committee, its judgments cannot practically be enforced. Those who most desire to repress irregularities are those who have most to gain by the substitution of an effective tribunal for a court which, because it is powerless, encourages rather than represses disorder. The establishment of a court, the authority of which could not be disputed, would destroy any foundation for the claim now in fact made by a section of the clergy to decide for themselves the limits of canonical obedience’ (p. 67).

• While this work is going to press there are two organized movements on foot to restore to the Church greater liberty of action. It is much to be hoped that by the time this work is published, some of the abuses here mentioned may have been reformed.

Church of England ‘as by law established’ in the original use of the phrase, e.g. in the canons of 1604, means ‘ not as by law founded, but as by law settled : it refers not to the origin of the Church but to its control.’ * There was no idea of drawing any contrast between Churches that are established and Churches that are not; the reference rather was to the actual terms of the relationship to the State. Nor does the word imply that the State claims to have founded the Church. In itself there need be nothing in State recognition to limit the liberty of the Church.

The State might bestow privileges upon the ministers of the Church, give special facilities for Church worship and teaching and even make grants of land or money because it considered Christianity a desirable religion for its subjects, without affecting the discipline of the Church at all. Whether the State decides to give to the Church any such privileged position, the State alone can determine. ‘ Establishment is in its nature a political fact: the adoption or maintenance of a national relation to- wards the Church.’ + The Church cannot either establish or disestablish herself.

Further, from the nature of things the Church cannot at any time be entirely free from all relation to the State. The Church is called to work in the world. She avails herself of all the resources of civilized society. The safety of her gatherings depends upon the strong arm of the civil law. Again, the tenure of all property depends upon the State for its security. If it is given for a certain purpose it is the duty of the State to see that it is used for that purpose. As early as 269 a.p. we find the Church appealing to the heathen Emperor Aurelian in order to recover Church property which Paul of Samosata refused to give up after his deposition by the Council of Antioch. So the ‘Free Churches’ are in varying degrees bound down by the possession of property. If, say, a ‘New Theology’ minister preached doctrine not in accordance with the trust-deed of his chapel and an action were brought to eject him, that action, involving questions of doctrine, would be tried by a civil court. Not long ago the majority of the Wesleyan Methodist body desired to extend the number of years during which a minister

could remain at one chapel. To effect this they were compelled to apply to Parliament for leave to alter the terms of the trust on which their property was held. A minority within the body threatened opposition, so that there was no chance of Parlia- mentary support. Accordingly the reform was dropped. Again, the same principle can be seen in the famous case of the Free Church of Scotland. This body by a very large majority decided to amalgamate with a smaller Presbyterian body, the United Presbyterians. The union was effected in face of the resistance of a small minority. But this minority brought an action in the civil courts claiming the whole of the property on the ground that this union involved a change of doctrine, since the formu- laries of the United Presbyterians were looser than those of the Free Church. Before the House of Lords the action was finally decided in favour of the minority, and it needed a special Act of Parliament to make possible an equitable apportionment of the property. These examples are enough to show that the present limitations of self-government in the Church of England are not due simply to the Royal Supremacy or to Establishment. If the Church were disestablished to-morrow the amount of liberty she possessed would depend upon the terms of disestablishment, that is, on the conditions on which she held whatever property she retained.

Accordingly, behind any question of establishment, and in reality distinct from it, there lies the further and greater ques- tion: how far is the State ready to recognize the independent life of smaller societies within itself, to regard them as con- taining within themselves powers of development and growth, and to allow them to adapt their rules and constitution to fresh circumstances ? That is one of the big problems of the future. It affects not only the Church, but many other societies, such as trades-unions. We can only consider it here so far as it affects the Church. Let us take the most probable cause of conflict between Church and State within the next few years, that of the marriage laws. The State has by Act of Parliament seriously relaxed its laws of marriage. It allows, for mstance, the re- marriage of divorced persons, innocent and guilty alike, and marriage with a deceased wife’s sister. The man in the street

~cannot understand that the Church has not changed her law too. Hence he cannot see why, when two persons are married

according to the law of the land, they may be repelled from com- munion in church, on the ground that they are not married according to the Church’s law. In other words, he cannot imagine that the Church can have a law of her own resting on other authority than that of the State. The question may be obscured by establishment, but is at bottom independent of it. Again, the case of the Free Church of Scotland suggests that the State is unwilling to allow a religious body the right to make new rules for itself. It is quite possible that if we were disestablished we might be bound down, with very little power, say, to alter our Prayer-Book or make new canons. Happily in America this right of self-organization and self-government has been recognized in the courts. It has been decided that a religious body may in its own courts, if duly constituted, con- demn and dismiss a minister for unorthodox teaching, and that he has no claim against the body in the civil courts for breach of contract and loss of stipend. That is to say, they are prepared to recognize an independent life within the smaller society.*

(f) In the face of present difficulties we are being thrown back upon first principles. There exists to-day in Europe a greater variety of belief and practice than can be found at any time probably since the Empire became Christian. We must face facts. It is both useless and impertinent to pretend that a Theosophist or a Buddhist, or a votary of the ‘ New Thought ’ or an agnostic is a Christian or a churchman because he is an English citizen. It is not that such men interpret the will of Christ in one way and the Church in another way. They do not recognize the authority of Christ at all, and do not even wish to discover what His will is, still less to submit toit. More and more men are rejecting not simply Christian doctrine, but the whole Christian standard of morality. It is becoming clear that the two in the long run stand or fall together. The present age is impatient of mere convention. Open disbelief is taking the place of secret indifference. A bored acquiescence in Christian- ity, as the correct thing, is changing into a calculated rejection of Christ. It is doubtful how long the current relations between Church and State will bear the strain. Pressure of fact compels us to look for guidance to Scripture and the early Church. We may find help, too, in a study of the mission field, where the

_CHURCH AND STATE 545

essential principles of Church life stand out more clearly than at home. The following lines of thought may be suggested as an outline of practical policy.

(i) Perhaps the greatest danger that besets the English Church in its relation to the State is Erastianism. On this view the supreme authority over religion rests with the State. The Church is simply the Government department for dealing with religion and the clergy are a class of civil servants. Hence it rests with the State to decide questions of doctrine, worship and discipline. There is a good deal of Erastian thought current, all the more dangerous because it has not been put into words. It is shown in the idea that all Englishmen have a right to be admitted to communion or that the law of the State concerning marriage binds the Church. Against this we must insist that the authority of the Church, her rule of life and her ministry, depend not on the State but on Christ.* Were the Church dis- established to-morrow she would still be the Body of Christ : she would still preach God’s word and minister His sacraments. Christ Himself gave authority to His Church to ‘ bind and loose’ : to submit to the commands of the State when they conflict with the law of Christ would be disloyalty to Him. It would be to give to Caesar what belongs to God. It is quite possible that in this generation the Church may be faced with the alternative of consenting to the usurpation of authority by the State in deciding matters of doctrine and ordaining rites and ceremonies or else of going out into the wilderness naked and bleeding and stripped of all her possessions.

(ii) Positively, we must work for Church reform, not necessarily disestablishment at all. We believe as English citizens that we have a duty to the nation and that every opportunity should be given to the Church to influence the national life. We must be prepared to sacrifice our own preferences on matters that are not vital in order to meet the needs and desires and even the prejudices of the nation (cp. 1 Cor. 9%). On the other hand, in order that the Church may be her best self she needs greater

*The taunt that we wish to reduce the Church to the level of a sect loses its force when we remember that the word ‘sect’ comes from ‘sequor,’ not “ seco.’ The Church as a whole must be in the strict sense of the term a ‘sect? since it consists of those who follow Christ and are thereby distinguished from all others. It is more important that the Church should consist of true

Christians than that it should include all Englishmen. 2M

power of action. What is required is some means by which the Church may express her mind and alter or amend her rules. Convocation, as at present constituted, does not even represent the clergy. Not only have dignitaries and cathedral chapters a quite unduly large representation, but the unbeneficed clergy, who are numerically a majority in the country, have no repre- sentation at all. The faithful laity also have no direct share in Church government. The ‘ House of laymen’ can do no more than discuss and pass resolutions. We have only to turn to the branches of our own communion outside England to find illus- trations of self-government, to act as examples of what we need. Again, we must strive for the restoration of an efficient system of Church courts leading up to a final court of appeal, such as will bind the consciences of all Church people. Only when this has been attained can we hope for any efficient exer- cise of Church discipline over all who claim to be her members.* In short, the Church of England must demand from the State a fuller recognition of the independence of her own life, even if a price has to be paid for such recognition.

(iii) On the other hand, the Church must fairly recognize the independence of the State. Just as she no longer expects the State to compel all citizens to attend her services, so she must not expect the State to enforce on all its citizens the full Christian standard of morality. Probably there never was a time when all the members of any State were at heart Christian. To-day it is unreasonable to expect men who reject the authority of Christ to accept, say, a strict law of marriage that is based on His authority. ‘The Church must be content to be able to enforce the Christian standard of life upon those who voluntarily are her members. Those without we must leave to God’s judgment. To attempt to enforce upon the world at large the full Christian standard can only end in degrading that standard. What will in practice be enforced will be something lower than Christian which will at the same time be supposed to be Christian.

Let us in conclusion recall the true work of the Church. The Church exists to forward the Kingdom of God on earth.

• We can find examples of exceedingly vigorous Church discipline in Pro- testant Non-conformist bodies in England. The Wesleyan Methodists have a complete system of courts and exercise discipline not only over ministers but over laymen.

To lead all men to Christ, that in Him they may find their truest life. She is to be ‘in the world but not of the world.’ She recognizes to the full the authority of the State as coming from God. If she desires to preserve her own life from worldliness and from the intrusion of secular authority, it is not from any selfish motive, but because only so can she preserve within her- self that salt of Christian living which is to be her gift to the world. What is best for the Church will be best for the State too in the long run.

Since the above was first written there has appeared the Report of the Archbishops’ Committee on Church and State, a mine of information on this subject.

See also:

Figgis, Churches in the Modern State. Essays on Church Reform (Ed. Gore). Peile, The Reproach of the Gospel, Lects. [V.-VIII. Moberly, Problems and Principles,.8, 9 and 11. Abraham, Church and State in England, cc. xv. and xvi. Hobhouse, The Church and the World, vi.-viii.

and for a different point of view : Creighton, The Church and the Nation.

§ 4. As we saw, the discipline of the State differs from that of the Church, in that the State has the right of employing force to compel obedience. The Church has always recognized the divinely given authority of the State (cp. Rom. 13, 1 Pet. 21°”). The State exists because men as social beings can only realize themselves through a common life. The existence of the State may be threatened in either of two ways, by lawlessness within or by enemies without. In either case the State is bound to use force to maintain its own existence. Public order is something that a right and wise use of force can ensure. The State is con- cerned primarily with acts and not motives, and hence its dis- cipline can differ from that of the Church. The strong arm of the law is able to effect that outward obedience in those matters that are the concern of the State.

(a) This is justification of that police action which is defended in the Article against the anarchical theories of Anabaptism. The rulers have authority ‘ to restrain with the sword the stubborn and evildoers.’ Our whole social order is backed in the last resort by force. Under normal circumstances this is disguised. Even so, unpleasant duties, such as paying taxes, are enforced

by the aid of the policeman. Men do them because they are obliged. So, too, in primitive communities disputes are settled by open violence. The stronger party carries the day. Among ourselves we have political conflicts. At bottom the effective principle is the same. ‘We count heads instead of breaking them.’ Recent events have shown that a powerful minority, smarting under a sense of injustice, may even now tear down the disguise and appeal to the sword. Thus from its very con- stitution the State has the inherent right of using force for self- preservation. This is not to say that the authority of the State is simply the will of the stronger or that the only motive to obedience is fear of punishment. As civilization advances the use of force is abated. Conduct becomes moralized. Higher motives for obedience tend to supplant the lower. But at bottom there must always be the appeal to force to put down disorder.

(b) So, too, when the State’s existence is threatened by an external enemy, force may rightly be used to repel him. That is, the State can call upon its citizens to take up arms in its defence. Hence ‘It is lawful for Christian men, at the command of the Magistrate, to wear weapons and serve in the wars’ (Latin, iusta bella). This position was contested by the Anabaptists. So to-day the Quakers and writers like Tolstoi argue that all war is evil, and the Christian, as such, is bound not to take part in it and even to endure suffering or death rather than fight. The ordinary man finds it difficult to understand how the same persons can avail themselves of the protection of the State for their lives and property, which protection against internal dis- order, as we have seen, depends in the last resort on force, and yet refuse to support the State in defending itself by war against destruction and pillage by external foes. But their position raises in an acute form the problem of the Christian’s attitude to war.

When we turn to the New Testament we find that our Lord accepted social conditions as He found them. He did not directly attack abuses, such as war or slavery, rather He laid down principles through the acceptance of which such abuses would be abolished. In the case of slavery there is no explicit condemnation in the New Testament. St. Paul does not even bid Philemon set free Onesimus (Philemon v. 1). Rather he

exhorts slaves to do their work faithfully. Yet in due time the conscience of Christendom came to see with increasing clearness that slavery was inconsistent with the principles of the Gospel, such as the unique value of the individual and the brotherhood of humanity. Accordingly, slavery was mitigated and in time abolished. So in the case of war, soldiers are not bidden to abandon their profession (e.g. Lk. 3!4, Acts 1048) and metaphors from the soldier’s life are freely employed. War is recognized as a training ground of manly virtues. Our Lord seems to approve of the use of armed force by the ‘kingdoms of this world’ (€« tov xkécpov Tovrov, i.e. having their origin from this world, Jn. 18%).* On the other hand, we are coming Increasingly to see that if men and nations were really Christian, war would be impossible. War is simply the result of human sin and self-seeking. It is a symptom of the depravity of the human heart. Christianity sets itself not to abolish the symptom only but to root out the cause of the evil. After all, war is simply the exhibition on the largest and most destructive scale of those fierce and anti- social passions which lie equally behind all acts of cruelty and injustice and are in utter antagonism to the Christian spirit of love. The more Christian we become the more we are shocked at the horrors of war. Only when the whole world is Christian can we hope for war to cease. It cannot be put down by any external legislation.

It may be asked, however, ought not the Christian to carry out literally the precepts of the Sermon on the Mount and refuse to offer resistance to any enemy ? One line of answer would be to point out that we have obligations not only to self but to society. What our Lord forbids is the spirit of personal revenge. If we ourselves alone are injured, we may be called on not to resist our enemy and even to suffer death. Such non-resistance may be truly Christian. But when the injury affects others, then we may be called on to resist. The evildoer is to be resisted not that we may gratify our own spite, but that he may himself learn from his punishment and be reformed, and that society may be protected. All war is sinful,

• So too our Lord seems to teach that force is not intrinsically evil, but can be consecrated to the service of God, when He pictures the Good Shepherd as employing it to defend the sheep. Jn. 10—}.

and arises from unchristian ambitions and jealousies. Yet the Christian fights not from personal animosity but to save his country.

Further, as we have seen, the State is not as yet fully Christian. It contains many citizens who are not even Christian in name. It is arguable that a perfectly Christian State might be called on to render a literal obedience to the Sermon on the Mount by a policy of non-resistance, and to witness for Christ by suffering wrong patiently as our Lord did. But a semi-Christian State

cannot be under any such obligation. The difficulty for the - individual Christian is that he is compelled to live, as it were, on two levels. As a member of the State he must assist the State to live up to highest standard, and that standard includes resistance to evil by force. As a Christian he be- lieves that evil can never be conquered by force. If he accepts State protection for his own personal safety, he can hardly refuse to help the State to defend itself against external enemies. In a sinful world this dual standard is unavoidable. Human sin has made the best impossible. We must choose the second best.

Cp. Gore, Sermon on the Mount, c. v. Mozley, Sermon on War (University Sermons).

The War and the Kingdom of God, especially Essays I. and V. (Goudge), and II. (Peter Green).

Fosdick, The War and the Present Crisis.

(c) Again, the supreme penalty that the State can inflict is death. Without doubt in earlier stages of society the death penalty was absolutely necessary as a deterrent. It is approved by the conscience of the writers of the Old Testament and of the New (Gen. 98, Ex. 2117, Acts 254, etc.). Hence the cautious wording of the Article can hardly be criticized. ‘ The laws of the realm may punish Christian men with death, for heinous and grievous offences.’ Whether at any given time it is desirable to inflict the death penalty is left open. That isa question that can only be decided by the reason and conscience of the particular community.

Notes

• Cp. Hobhouse, The Church and the World, p. 41, ‘Christians were… persecuted not so much for individual beliefs, as for being members of a Church and of a Church which acknowledged no divided allegiance.’
• For certain qualifications, see W. Temple, Church and Nation, pp. 16-19.
• See Abraham, Church and State in England, c. ii. ; Collins, C,H.S, Lectures, LXXIx.
• Op. cit. p. 38.
• “No one would probably deny that, as a matter of fact, when the Church admitted the Crown to a share in her concerns, whether it was in Constantine’s day or Charlemagne’s, or at the Reformation or under Louis XIV, it was to a real King understood to be both a Christian and a Churchman that she consented to yield this power’ (Dean Church, On the Relations between Church and State, p. 17).
• ‘The understanding never was that the ecclesiastical power should be transferred to a body of men, neither representing the Church nor identified with her in feeling, in purpose, in belief, into whose hands by the effect of political changes, had passed in reality the old civil and temporal functions of the Crown ’ (op. cit. p. 52.)
• Cp. Joyce, The Sword and the Keys, pp. 100-101. + Crosse, Church and State, p. 100.
• Figgis, Churches in the Modern State, p. 9. t+ Moberly, Problems and Principles, p. 160.
• Cp. Moberly, Problems and Principles, p. 279.