Halsbury’s Laws of England (the 5th edition) suggests apparent confusion about the Monarch’s precise ecclesiastical title.
Volume 20 of Halsbury asserts that ‘The Monarch … is Supreme Governor of the Church of England’ (para 16), and cites volumes 29 and 34 as authority. Volume 29 states that ‘the Monarch is the only Supreme Head on Earth, under God, of the Church of England’ (para 63). Volume 34, which treats of ecclesiastical law, states that ‘the Sovereign is Supreme Ordinary and Visitor …’ (para 60).
Everyone knows that the title Supreme Head was claimed by King Henry VIII, during his break with Rome in the 1530s. The claim appears in the Act of Supremacy 1534. However, as volume 29 of Halsbury makes clear, the Monarch is Supreme Head by common law, as well as by statute: ‘the statutory provisions regarding the supremacy of the Monarch in spiritual matters [at the Reformation] were declaratory of common law’ (para 63n).
Thus Henry VIII was not the first King of England to be Supreme Head of the Church. The Monarch has always been Supreme Head of the Church by common law (which is itself derived from Divine law). As the 1534 Act says, ‘the King … is [already] and ought to be Supreme Head … yet nevertheless for corroboration and confirmation thereof … Be it enacted … that the King … shall be taken, accepted and reputed the only Supreme Head of the Church …’ (s.1).
Whatever its relationship to the true historical facts, this remains the constitutional doctrine to the present day. The Monarch’s ecclesiastical title is an ancient common law title, not a statutory title dating from the 16th century. The Pope’s supremacy was not abolished at the Reformation, because it had never existed in the first place. Any papal claim was merely an illegal usurpation of the Monarch’s title.
The title Supreme Governor appeared in the Act of Supremacy 1558, the first Act of Queen Elizabeth I, Henry VIII’s daughter. She is described in the 1558 Act as Supreme Governor of the Realm rather than the Church, though supreme ‘as well in all spiritual or ecclesiastical things or causes, as temporal’ (s.19).
The Elizabethan title was more modest and tactful than the Henrician one. The ‘headship’ of women was less fashionable in the 16th century than it is today. Headship could also imply that the Monarch exercised some priestly function in the Church. The 1558 Act made clear that the Monarch’s headship is limited to the power of governance. Her lesser known ecclesiastical title ‘Supreme Ordinary’ also makes this point.
Article 37 confirmed the constitutional position ‘Where we attribute to the King’s Majesty the chief government … we give not to our Princes the ministering either of God’s Word or of the Sacraments …’. This Elizabethan clarification of the royal supremacy has been universally accepted. Nobody now suggests that the Monarch is a priest. When he republished the 39 Articles in 1628, King Charles I referred to ‘Our just title … Supreme Governour of the Church …’ (Royal Declaration).
However, the 1558 Act merely clarified the earlier law concerning the royal supremacy. It did not abolish or replace it. The Elizabethan title was an alternative to the Henrician title, rather than a substitute for it. In the Elizabethan case of Cawdrey (1591) 77 English Reports 1, Sir Edward Coke held that ‘By the ancient laws of this Realm … England is an absolute empire and monarchy consisting of one Head, which is the King, and of a body politic … which the law divideth into … the clergy and the laity, both of them next and immediately under God, subject and obedient to the Head’ (p.10).
Their clarifying work done, the 1558 references to the Monarch’s title have now been repealed. The common law remains in force, of course. Perhaps this means that the Monarch is now correctly described as Supreme Head, and not as Supreme Governor. However, it is argued that the two titles (and the third – ‘Ordinary’) are really one and the same, and may be used interchangeably.