This conclusion seems probable, if one considers that those canons proceeded from an absolute spiritual monarch, and had a perpetual reference to his dominion; that they were formed upon the very genius, and did acknowledge the authority of the civil laws, the proper issue, as my Lord Commissioner has shewn us, of civil despotism. Whoever, I say, considers all this, will be inclined to think that the crown contrived this interim from the use the canon law was of to the extension of the prerogative. Accordingly it is certain, that the succeeding monarchs, Elizabeth, James, and Charles, would never suffer us to have a body of ecclesiastical laws, from a sense of this utility in the old ones; and a consciousness, if ever they should submit a body of new laws to the legislature, that the parliament would form them altogether in the genius of a free church and state[29]; and perhaps would be for assuming a share in their darling supremacy itself.
With those canon laws, and for the same purpose, as was observed to us, these princes retained a great affection for the interpreters of them, the canon and civil lawyers; till the genius of liberty rising and prevailing in the end, over all the attempts of civil despotism, both the one and the other fell into gradual desuetude and contempt: and as the canonists were little regarded, so their law is now considered no further than as it is countenanced and supported by the law of England.
But to see how convenient the doctrine of the canon law was for the maintenance of an absolute supremacy, it needs only be observed to you, that one of these canons is, “That it is not lawful for any man to dispute of the pope’s power.” And to see how exactly our kings were disposed to act upon it, one needs only recollect that immortal apophthegm of the elder James, already taken notice of, “That it is sedition for the subject to dispute what a king may do in the height of his power.”
And as the canon laws are the pope’s laws, so we are told, on the same supreme authority, that the English laws are the king’s. For thus on another occasion his majesty expresses himself.—“Although a just prince” (I believe I repeat his very words) “will not take the life of any of his subjects without a clear law: yet the same laws, whereby he taketh them, are made by himself, or his predecessors; and so the power flows always from himself.”—And again, “Although a good king will frame all his actions to be according to the law, yet is he not bound thereto but of his good will, and for good example giving to his subjects[30].”
Thus decreed that great school-master of the whole land (to give his majesty no harder a title than he was pleased to give himself); and it is difficult to say whence his supremacy extracted this golden rule of free monarchies, if not from the pope’s own code of imperial canons.
Thus it appears what misconceptions arose, and what strange conclusions were drawn, from the king’s supremacy in spirituals. One might proceed further in contemplation of this subject; but I have wearied you too much already. You will see from these several particulars how it came to pass that the Reformation, which was founded on the principles of liberty and supported by them, was yet for some time the cause of strengthening the power of the crown. For though the exercise of private judgment, which was essential to Protestantism, could not but tend to produce right notions of civil liberty, as well as of religious faith and discipline, and so in the end was fated to bring about a just form of free government (as after some struggles and commotions, we see, it has happened), yet the translation of supremacy from the pope to the civil magistrate brought with it a mighty accession of authority, which had very sensible effects for several reigns afterwards. The mysterious sacredness and almost divinity which had lodged in the pope’s person, was now inshrined in the king’s; and it is not wonderful that the people should find their imaginations strongly affected by this notion. And with this general preparation, it followed very naturally, that, in the several ways here recounted, the crown should be disposed and enabled to extend its prerogative, till another change in the government was required to limit and circumscribe it, almost as great as that of the Reformation.
MR. SOMERS.
I have listened with much pleasure to this deduction which your lordship has made from that important circumstance of the crown’s supremacy in spirituals. I think it throws great light on the subject under consideration, and accounts in a clear manner for that appearance of despotism which the English government has worn from the times of reformation. I have only one difficulty remaining with me: but it is such an one as seems to bear hard on the great hypothesis itself, so learnedly maintained by my Lord Commissioner in our late conversation, of the original free constitution of the English government. For, allowing all you say to be true, does not the very translation of the pope’s supremacy to the king, considered in itself, demonstrate that we had then, at least, no free constitution at all, to be invaded by the high claims of that prerogative? If we admit the existence of any such, the supremacy of the church should, naturally, I think, have devolved upon the supreme civil power; which with us, according to the present supposition, is in the three estates of the legislature. But this devolution, it seems, was on the king alone; a public acknowledgment, as I take it, that the constitution of the government was at that time conceived to be, in the highest sense of the word, absolutely MONARCHICAL.
BP. BURNET.
I was not, I confess, aware of this objection to our theory, which is very specious. Yet it may be sufficient, as I suppose, to reply to it, that the work of reformation was carried on and established by the whole legislature; and that the supremacy, in particular, though it of right belonged to the three estates, was by free consent surrendered and given up into the hands of the king. It is certain this power, though talked of as the ancient right of the crown, was solemnly invested in it by act of parliament.