PROMISSORY OATHS BILL—(No. 243.) (Hansard, 16 July 1868)

§ THE EARL OF SHAFTESBURY
said, that there was a misapprehension abroad as to the 8th clause. There was a notion that the clause as it stood went so far as not only to repeal the Oath of Supremacy, but to exonerate the clergy altogether from any obligation to recognize the Supremacy of the Crown. He believed that was a totally erroneous idea; but, as the matter was one of very great importance, he had spoken to the Lord Chancellor about it, and he wished to know from the noble and learned Lord what his opinion was Upon the subject?

THE LORD CHANCELLOR
My noble Friend has been good enough to inform me beforehand of his intention to ask this Question. I own that I am myself very glad that the noble Earl has mentioned this subject to your Lordships, because, judging from observations made elsewhere, there does appear to be a considerable amount of misunderstanding as to the Oath of Supremacy, and as to the consequences of any repeal of that Oath. There can be no greater mistake than to suppose that the Oath of Supremacy and what I may term the law and doctrine of the Queen's Supremacy are the same thing, or that they have been in recent times co-extensive. In point of fact, from circumstances which can be easily explained, the Oath which has been called the Oath of Supremacy has for a long time—for nearly two centuries—ceased to express in any shape or form the doctrine 1228 of the Supremacy of the Sovereign. The Supremacy of the Sovereign depends upon a sanction very much higher than the obligation of an oath. Sir Matthew Hale and Lord Coke both say that the Royal Supremacy rests on the Common Law and requires no statute to support it. The three main statutes which relate to the Royal Supremacy are the 24, 25, & 26 Henry VIII. I will not trouble your Lordships by quoting at length from these statutes; but I will mention the words of one of them—the 25 Henry VIII.—from which your Lordships will see the form of legislation then adopted with regard to the Supremacy of the Crown. It says— This your Grace's realm, recognizing no superiority under God but only your Grace, hath been and is free from any subjection to any man's laws; but only to such as have been devised, made, and ordained within this realm, for the wealth of the same, or to such other as by sufferance of your Grace and your progenitors the people of this your realm have taken at their free liberty, by their own consent to be used among them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of laws of any foreign Prince, Potentate, or Prelate, but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom, and none otherwise. And, further, the 24 Henry VIII. states that— Whereby divers sundry old authentic histories and chronicles it is manifestly declared and expressed, that this realm of England is an empire, and so hath been accepted in the world, governed by one supreme head and King, having the dignity and Royal estate of the Imperial Crown of the same; unto whom a body politick, compact of all sorts and degrees of people, divided in term, and by names of spirituality and temporality, been bounden and owen to bear, next to God a natural and humble obedience; he being also institute and furnished, by the goodness and sufferance of Almighty God, with plenary, whole and entire power, pre-eminence, authority, prerogative, and jurisdiction, to render and yield justice and final determination to all manner of folk, resiants, or subjects within this his realm in all causes, matters, debates, and contentions happening to occur, insurge, or begin within the limits thereof, without restraint or provocation to any foreign Princes or Potentates of the world. That was the form in which the Supremacy of the Sovereign in matters temporal and ecclesiastical stood in the reign of Henry VIII. As a matter of history, your Lordships will remember that all these Acts were repealed in the reign of Mary. but were re-enacted in the 1st of Elizabeth; and you may take as one of the most condensed explanations of the 1229 legislation of the 1st of Elizabeth the statement of Mr. Hallam, who says— The two statutes enacted in the first year of Elizabeth, commonly called the Acts of Supremacy and Uniformity, are the main links of the Anglican Church with the temporal Constitution, and establish the subordination and dependency of the former. Now, these statutes of Elizabeth continue to the present day; they are the statutes which are the full and broad expression of the Royal Supremacy; they are binding upon every subject of the realm, whether a layman or a clergyman; and so far as the declaration of the law and the stringency of the law go, that law would remain binding upon every subject of the Crown, whether he did or did not take any Oath or make any declaration respecting it. But now, as regards the case of the clergy, before coming to the Oath of Supremacy, as it is somewhat inaccurately called—the clergy, independently of all statutes and of all rules, are in a position essentially differing from the laity in this respect—that they subscribe, among other things, the 37th Article of Religion, and declare, on ordination and on taking possession of any benefice, that— The Queen's Majesty hath the chief power in this Realm of England and other her Dominions, unto whom the chief Government of all estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain; and is not, nor ought to be, subject to any foreign Jurisdiction. Therefore, in addition to the general laws which bind all the subjects, there is this specific declaration signed by all clergymen at their ordination, which has a peculiar operation on their consciences from the form of expression used. That is the state of the case as to the law of Supremacy; but as to the Oath of Supremacy, the history of it is a very singular one. Originally, the Oath of Supremacy was passed in the reign of Elizabeth, and it really was what its name professed to be; it was an expression of the law and doctrine of Supremacy in all its breadth— I, A. B., do utterly testify and declare in my conscience that the Queen's Highness is the only Supreme Governor of this Realm, and of all other Her Highness's Dominions and countries, as well in all spiritual or ecclesiastical things or causes as temporal; and that no foreign Prince, Person, Prelate, State, or Potentate, hath, or ought to have any jurisdiction, power, superiority, pre-eminence, or authority ecclesiastical or spiritual within this Realm; and, therefore, I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise that from henceforth I shall bear faith and true allegiance to the Queen's Highness, her 1230 heirs and lawful successors, and to my power shall assist and defend all jurisdictions, pre-eminences, privileges, and authorities granted or belonging to the Queen's Highness, her heirs and successors, or united and annexed to the Imperial Crown of this Realm. Your Lordships will observe that that was an Oath which had both an affirmative and a negative part. The affirmative part testified to the existence of the Royal Supremacy in all matters ecclesiastical and temporal; the negative part disowned the jurisdiction of any foreign Prince. The second form in which the Oath passed was after the Revolution in the reign of "William and Mary, when a remarkable change was made in it; the affirmative part of the Oath was omitted, and it became a negative Oath only— I, A. B., do swear that I do from my heart abhor, detest, and abjure, as impious and heretical, that damnable doctrine and position, that Princes excommunicated or deprived by the Pope, or any authority of the See of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare that no foreign Prince, Person, Prelate, State, or Potentate, hath or ought to have any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this Realm. There is no doubt it continued to be called the Oath of Supremacy, but it utterly failed to express a large part of the doctrine of Supremacy. It denied the supremacy of any foreign prince or potentate, but it failed to affirm the Supremacy of the Sovereign in matters ecclesiastical and temporal. That was the second form of the Oath. The third Oath, adopted in 1858, still continued simply a negation; and the Act of 1858 used these words— Instead of Oaths of Allegiance, Supremacy, and Abjuration, when the same are now by law required to he taken, and taken and subscribed respectively, the following Oath shall be taken and subscribed. I should have imagined from these words that the intention was that the name of the Oath of Supremacy should cease. However that may be, the only words again touching the Supremacy in this Oath are as follows:— I do declare that no foreign Prince, Person, Prelate, State, or Potentate hath, or ought to have, any jurisdiction, power, superiority, preeminence, or authority, ecclesiastical or spiritual, within this Realm; and I make this declaration upon the true faith of a Christian. Your Lordships will see that this was still a negative Oath without any affirmative words. The fourth time that the Oath was dealt with was in 1865 by the Clerical Subscription Act, which enacted that— 1231 Every person about to be ordained priest or deacon shall, before ordination, in the presence of the Archbishop or Bishop by whom he is about to be ordained, at such time as he may appoint, make and subscribe the declaration of assent, and take and subscribe the Oath of Allegiance and Supremacy according to the form set forth in the Act of 1858. Therefore, before the present Bill was brought into Parliament, the law of Supremacy continued without any change. The clergy subscribed the 37th Article, which affirmed that law in all its breadth, and they took in addition what was called rather improperly the Oath of Supremacy, which was nothing more than a negation of the supremacy of the Bishop of Rome. This Bill does not alter in any way the doctrine or the law of Supremacy, which is left exactly as it stood. Every clergyman is under the same obligation as before to subscribe the Thirty-nine Articles, including the 37th. All that the Bill does is to terminate that Oath of negation which, as regards a clergyman, is perfectly unnecessary, because it is contained in the 37th Article; and as regards all the other subjects of the Crown, it is unnecessary too, because the subject-matter of that Oath of negation is regulated by the general law of the country, whether the Oath continues or not. I think, therefore, your Lordships will be of opinion that there is really no ground for any of the apprehensions that have been entertained that the law or doctrine of Supremacy is in any way interfered with by this Bill.

§ LORD WESTBURY
As one of the Members of the Select Committee to which this Bill was referred, I beg leave to be allowed to make a few observations respecting it. Notwithstanding what has fallen from my noble and learned Friend (the Lord Chancellor)—which in law and good sense too, is perfectly correct—I very much regret that we permitted this Bill to come down with one form of expression which is contained in it. For although to persons conversant with the subject that form of expression cannot create any error or lead to misconception, yet to the generality of persons I am afraid it will give vise to considerable difficulty. The form of expression I allude to is that contained in the 8th section, whereby it is proposed to enact that— The form of the Oath of Allegiance provided by this Act shall be deemed to be substituted in the case of the Clerical Subscription Act, 1865, for the form of the Oath of Allegiance and Supremacy therein referred to. 1232 This mode of expression seems to import that the Oath of Supremacy shall henceforth be annulled, and the simple Oath of Allegiance substituted for it. Now, it is perfectly true, as the Lord Chancellor has said, that it does not in the smallest degree affect the obligations of the clergy or the obligations of the laity. Supreme jurisdiction in ecclesiastical matters in all cases ecclesiastical or spiritual is the essence of the Supremacy of the Crown. The Crown has not supremacy in any matter of doctrine, nor any authority whatever to assert anything with respect to doctrine except the meaning of the written law. The Supremacy of the Crown is this—that all jurisdiction proceeds from the Crown, and must be exercised by virtue of appointments made by the Crown. The final jurisdiction in all matters ecclesiastical and spiritual is centred in the Crown. Now, your Lordships will be good enough to observe that I use the word "jurisdiction," and not "authority." There may be spiritual authority and pastoral authority; but jurisdiction, which is the right jus dicendi, is vested in the Crown, and can only be exercised by authority of the Crown. This was the prerogative of the Kings of England even before the Reformation. At the time of the Reformation the Supremacy of the Crown was finally asserted and established in this—that there should be no appeal to Rome, but that the ultimate decision of all ecclesiastical cases should centre in the Crown, and in persons appointed for that purpose by the Crown. My noble and learned Friend on the Woolsack has stated what is the true idea of the Supremacy of the Crown. It is also given in the right form in the words by which the clergy bid us pray for the Queen as being "in all matters ecclesiastical and spiritual within these her dominions supreme." Supreme, as I have already observed, for the purpose of finally declaring the law upon these subjects. The 37th Article also contains a correct expression of the positive or affirmative doctrine of the Supremacy of the Crown, and, after laying this down, it proceeds to give a more express definition. It says— The Queen's Majesty hath the chief power in this Realm of England and other her Dominions, unto whom the chief Government of all Estates in this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain; and is not, nor ought to be, subject to any foreign Jurisdiction. When we attribute to the Queen's Majesty the chief Government, by which Titles we 1233 understand the minds of some slanderous folks to be offended, we give not to our Princes the ministering either of God's Word or of the Sacraments, the which things the Injunctions also set forth by Elizabeth our Queen do most plainly testify, but that only Prerogative which we see to have been given always to all godly Princes in Holy Scripture by God himself; that is, that they should rule all Estates and Degrees committed to their charge by God, whether they be Ecclesiastical or Temporal, and restrain with the civil sword the stubborn and evil doers. The Bishop of Rome hath no jurisdiction in this Realm of England. The temporal sword and the spiritual sword are, for the purposes of ruling all estates and degrees, constitutionally vested in the Sovereign, but the office of the clergyman is not interfered with.

§ LORD WESTBURY
said, that if he had observed the form of expression contained in the Bill, he would have suggested the propriety of altering it.

THE LORD CHANCELLOR
said, that the history of the legislation on the subject was not creditable in respect of the way in which Acts of Parliament were drawn. The Act of 1865 was drawn at a late period of the Session, and an Amendment was inserted introducing the term "Oath of Supremacy and Allegiance" contained in the Act of 1858: and that error had been perpetuated in the present Bill.