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In the Tudor and Stuart reigns the connection between Church and State was considered as constitutionally essential; and in the 18th century similar theories of political government postulated the two working in combination. Protestant Dissenters, however, secured exemption from the penalties of Nonconformity by the Toleration Act (1689): and by the end of the next century they had begun to assert their right to religious equality with the Church, which had perhaps allowed its State connection to numb its energies. Their example was followed at the beginning of the 19th century by the Roman Catholics (the chief Acts were those of 1802 and 1829) demanding emancipation from the fetters of civic incapacity which they had borne since the Reformation. The reasons for the greater restrictions placed on them were no doubt that it was desired to make a clean break between the former ecclesiastical régime and the new one set up under the supervision and direction of the civil authority, and that the Papal claim to temporal sovereignty as well as ecclesiastical supremacy was treated as a serious challenge to the civil power, which was to be opposed in the clearest terms of protest. Jews did not obtain full civic rights till well on in the 19th century. It is worth while to consider briefly, not only in view of its record in the past, but also in view of the possibility of the Established Church losing its connection with the State, as is proposed for the dioceses in Wales, what was the effect of the statutory “Establishment” of the Church as regards its doctrine, judicial organisation, and juridical position, and whether the Church derives any advantage in these respects over other religious bodies.
The starting point of the new order of things was the statutory enunciation of the doctrine of the Royal supremacy. After being stated in an extreme form by the Acts of Henry VIII, it was declared in a modified form by Elizabeth (by admonition in the Royal Injunctions of 1559) to be that
the Queen did not challenge any authority other than was challenged and used by the Kings, her father and brother, which is and was of ancient time due to the Imperial Crown of this realm, i.e., that "the Queen should have sovereignty and rule over all manner of persons of what estate, ecclesiastical or temporal, so as no other foreign Power should have any authority over them.” It was asserted (1) in the manner of election of Bishops by legislation of Henry VIII, viz., the old procedure was followed except that the papal jurisdiction was taken away, (2) in appeals in ecclesiastical matters.
In theory this was not a departure from the former order of things.
The supremacy of the Crown over all persons and in all cases, ecclesiastical and civil, was well recognised in the Common law before the Tudor legislation which expressly gave it statutory force, and it was shown by the power of the King's Courts to prohibit the ecclesiastical Courts if coming into conflict with the ordinary law, and also in the fact that, by the Constitutions of Clarendon (1164), appeals in ecclesiastical causes went finally to the King. Subsequently such appeals were by custom referred to the Pope, but it was recognised that the King's authority was not to be prejudiced thereby. The supremacy of the Crown was also recognised in its right to nominate to bishoprics even when granting its licence for a free election to fill the vacancy, and the election was subject to the King's consent, which was necessary for the investiture of the elected person with the temporalities. The Statute of Provisors rejected the claim of the Pope to collate to bishoprics, and in 1392 a preamble to a statute recites an objection by the Commons to actions by the Pope which were contrary to the Common law, such as the translation of English bishops to foreign sees and to other English sees. But in practice this arrogation of supreme ecclesiastical power constituted a definite departure from the
former position of co-existing authorities and jurisdictions of the State and Church respectively, for the civil power, instead of lending its aid to enforce the ecclesiastical power as before, now took up the active part and treated ecclesiastical offences as civil offences. The State now had to supervise the doctrines and settle the policy of the Church. It made it its business on the one hand to retain, so far as possible, the truly Catholic doctrines, and on the other hand to make the necessary concessions to the spirit of the Reformation, which was rising so rapidly on the Continent: and it found itself obliged to prescribe by statute the doctrines and form of worship of the Church. Previously statutory uniformity in religion was novel to English law. Though, in Hooker's words, “there is not any man a member of the Commonwealth who is not also of the Church of England,” previously to Tudor times these matters were left to the Church, and only on special occasions did the civil power intervene with regard to spiritual matters in aid of the ecclesiastical jurisdiction. A proof of this change is to be found in the fact that the term “Nonconformist” is not found before the Elizabethan Act of Uniformity. Before that time divergence from the teaching and ritual of the Church had been dealt with as heresy, to be mentioned subsequently. It is the opinion of writers that actual Nonconformity with the Church did not exist, at least for practical purposes, before the reign of Elizabeth: those who differed from the Church probably conformed. The clergy with Papal sympathies, left their offices and benefices owing to the Elizabethan Act of Uniformity and Supremacy: and Protestant Dissenters were severely dealt with on several occasions during her reign, as also during those of James I and Charles II. At Common law Nonconformity is not an offence, nor is it an ecclesiastical offence in a layman-thus he can be a church
1 E. &, Winslow, and see article in Encyclopedia of Laws of England.
warden except in "new parishes” of the Church of England, he can claim baptism and marriage and burial from a minister of the Church, and he can present to a Church living. Another equivalent term in the Elizabethan, Jacobean and Carolean statutes of uniformity is “recusant” (generally coupled with “papist” or popish), which has been defined? as a “person, whether papist or other, who refuses to go to church and worship God after the manner of the Church of England”; and a "popish recusant convict " was a person legally convicted of such an offence. The general require. ments of all the uniformity legislation were, that laymen were required to attend the parish church and conform to its formularies, and attendance at conventicles was criminal offence; while in order to obtain uniformity as regards doctrines and beliefs, resort was had to the penalties of heresy which had already been applied by the Legislature in some isolated measures against particular innovations in church doctrines, such as the Lollards. In the reign of Richard II, power was given by Act to imprison heretics till they justified themselves according to reason and the law of Holy Church.?
Almost the earliest recorded case of capital punishment for heresy, is that of the Deacon and Jewess which has been especially examined by Professor Maitland, a case (dated 1222) in which a deacon, after trial by a Provincial Council at Oxford, was sentenced to be burnt because he had apostatised to Judaism for the love of a Jewess. This seems to have been the only precedent for such a punishment until the Lollard cases in 1410. In this case the sentence of the Council was carried out by the King's bailiffs, apparently without any trial or sentence by the King's Court. Mait. land's view, based on the other evidence extant as to cases of this kind, is that this was not considered as a legal
| Burn's Ecclesiastical Law (1842), iii. 142. 3 5 Rich. II, CC. 2-5 .
8 L. Q. R., II, 153.
precedent, but was referable to the generally accepted view at that time that the Church had exclusive jurisdiction as regards spiritual matters, and that this would be regarded as a case of discipline over a clerk, which was too heinous to make any reference to a Civil Court for sanction necessary. The contributions made by Bishop Stubbs, the historian, as historical appendices to the Report of the Ecclesiastical Commission of 1883,' gives the details of the records of these cases, but his conclusion, that it is certain that by the Common law burning was the penalty for heresy, is not borne out by the lawyers who have expressed opinions on this point. It is significant in this connection that, as already pointed out, Professor Maitland, whose theory that the Canon law of the Church was fully accepted and was in full force until the English Reformation, is well known, expresses himself very cautiously as to the legal effect of the Deacon and Jewess Case.
The Act de heretico comburendo? made heresy (e. g., that charged against the Lollards, was “writing books contrary to the Catholic faith or determinations of the Holy Church, or of such sect and wicked doctrines and opinions making any conventicles or holding or exercising schools)” punishable by burning. The repeal of this statute in 1559 was, however, thought not sufficient to take away the liability of heretics to be burnt at Common law. Such burnings took place in the reign of James I, though the opinions of the judges of that time can hardly be considered as firm constitutional precedents in view of their want of independence of the Crown. Another Act was accordingly passed for that purpose in 1677, 29 Car. II, 9, forbidding atheism, blasphemy, heresy or schism to be punished by death by any Court, but reserving the rights of archbishops, bishops, and ecclesiastical persons to punish heresy by excommunication, deprivation, degradation, and other ecclesiastical censures. The Act
i Vol. II, 52, &c.
2 Hen. IV, c. 15 (1401).