Wednesday 25 January 2012

Restraint of Appeals

Following my recent piece on the European Court of Human Right’s ruling that England should be a refuge for the huddled masses of foreign terrorist, yearning to breathe havoc, I read Following in Henry’s Footsteps?, a thought-provoking article by Stephen Cooper in the January issue of History Today.

We, as a nation, are the plaything of a supra-national power, a new Roman conglomerate, if you will. But this is not unique in our history; we have been here before, subject to the decrees and laws of an old Roman conglomerate.

David Cameron has talked in general terms about the repatriation of powers from Europe. Henry VIII, suffering from a little local marriage difficulty, did not just talk; he acted. He wanted a divorce from Catherine of Aragon, his first queen, but in such matters the Vatican acted as the Supreme Court. Pope Clement VII was not inclined to go along with the royal wishes; he was not ‘simpatico to the direction of change’, as Tony Blair would doubtless express the point.

So, with the aid of Thomas Cromwell, his chief minister, the king cut the umbilical cord, the age-old link between the English and the Universal Church. He repatriated all legal powers to England in the 1533 Act of Restraint of Appeals. This had the effect of ending all appeals to Rome, allowing matters to be settled on the spot, declaring to the world that England was an empire, not subject to the rule of a foreign princes or courts. How wonderful!

The thing is, you see, up to that point England effectively had two legal systems; it had ever since the Norman Conquest. There was the common law of the land and there was canon law, the law of the Church. Two sets of laws meant two sets of courts, with the ultimate arbiter in all matters affecting canon law being the Vatican. This included all family law, issues pertaining to wills and, of course, marriage. This was the basis of Papal power in England, which by the early middle ages was considerable.

Papal interference got so bad that, in a deeply anti-clerical mood, Parliament enacted the Statute of Provisors and Praemunire in the reign of Edward III, which attempted to curb papal interference. But the two systems still remained in place until Henry’s marriage problems saw not just a break with the Roman Church but an amalgamation of law, or, if you prefer, the repatriation of law.

The Act of Restraint of Appeals had great significance in English history, far beyond offering Henry, as head on an independent English Church, a way of ending the Roman logjam. It was a declaration of political sovereignty, an Act of Parliament rather than a royal proclamation.

The danger in this usurpation of canon powers is that Rome would place the country under an interdict, as it had in the time of Innocent III, the great medieval pontiff, which put a rebellious King John firmly in his place – the papal pocket. To prevent this, the Act allowed for imprisonment of any priest who refused to perform the sacraments. More than that, the provisions of the fourteenth century Statutes of Provisors and Praemunire was brought to bear, threatening those who invoked the authority of the Pope with confiscation of property.

The Act was so successful that even during the Catholic reaction of Henry’s daughter, Mary, it was never repealed. For all her orthodoxy Mary remained Supreme Head of the Church, effectively the Pope in England. There were no more appeals to the Papal Curia, no more foreign laws.

If only we could have a new of repatriation, an Act of Restraint of Foreign Legal Stupidity, one that would serve the same purpose, one that would end the diktats of the Court of Justice of the European Union and the European Court of Human Rights.

We were warned, but too few were prepared to listen, warned of the approaching flood of alien law, set to drown our own inherited traditions. In 1975 the people in this country were deceived, deliberately so. They thought they were voting for an economic union, but the small print contained so much more.

The year before the referendum on membership of what was then the European Economic Community, Lord Denning, the Master of the Rolls, in Bulmer v Bollinger observed –“When it comes to matters with a European element the Treaty is like an incoming tide. It flows into estuaries and up the rivers. It cannot be held back.”

History has been reversed. We are far more in thrall to the new Roman power than we ever were to the old. How I admire the audacity of Bluff King Hal. Henry! Thou should be living at this hour: England hath need of thee.


  1. Exactly! I have sometimes wondered whether the great European project was, in fact, a form of covert Counter-Reformation designed not just to unify the nations of Europe, but to finally fulfill the dream of one single Holy Roman Empire, something that neither church nor state ever managed to achieve. It's hard to explain, otherwise, the intensity of passion and zealotry the project's faithful apply to their scheme, and their willingness to discard almost 2000 years of regional and local diversity.

    But how to explain not just the wholesale discarding of British law, and its replacement with EU mandates and regulations, but the tolerance and acceptance at the same time of sharia kangaroo courts? The times are out of joint . . .

  2. You were warned by the BNP and EDL etc. etc. etc.

  3. Ana the erosion of the roots of our identity began when the Fatwa was placed on Rushdie over two decades ago. The police failed to act in what was incitement to murder, because the rot had already set in.

  4. Calvin, they most certainly are. The Unholy Roman Empire is one of the terms I have used for the European Union.

  5. Anthony, any warnings from those movements came well after the event.

  6. Richard, that was a shocking episode. Father bought Satanic Verses as an act of simple solidarity, though he did not like Rushdie's previous work. That a book could be burned on the streets of this country invokes Heine's warning.

  7. They really should burn all the talmuds, Kurahns, Bibles, Communist Manifestos and maybe, just maybe, the world would be a better place.

  8. Henry re-wrote the script of England according to his personal pleasure. Not for the nation's good.

    see link:

  9. Hi Ana. I was reading more on GK Chesterton when I saw this and thought of your blog:

    "The Protestant Reformation was merely a belated revolt of the thirteenth century pessimists. It was a backwash of the old Augustinian Puritanism against the Aristotelian liberality."


    Each generation instinctively sought its saint: 'not what the people want, but what the people need.'

    "Thus it was the paradox of history that each generation is converted by the saint who contradicts it most."

  10. Anthony, Powell certainly. Manifestos of one kind or another are the bane of humanity.

  11. Thanks, Nobby, but those killed by Henry were killed not for being Catholic but for owing allegiance to a foreign power. Henry was completely orthodox. He always maintained that he was a schismatic and not a heretic. After the break with Rome his regime was notable for the occasional persecution of Protestants. Even his last queen, Catherine Parr, came under threat. He did not rewrite the script of England, as you put it, in pursuit of ‘personal pleasures.’ He was as adept as any other English monarch in this regard, pursuing personal pleasure irrespective of their marital status. Bessie Blount and Mary Boleyn could tell you all about this!

    No, the break was all about the succession and the future of the Tudor monarchy. Of all of the children that Henry and Catherine of Aragon only Mary had survived. We can look forward to the reign of Elizabeth to see that a female sovereign could be a very good thing indeed. But from Henry’s perspective there was simply no precedent. Or rather there was, Matilda, the heir of Henry I, hardly an encouraging example. The thing is that the Tudor dynasty had been established only after a bitter dynastic war, still within living memory. With no son to succeed him it was quite likely that a new struggle would begin. So his dispute with Rome was all about politics, not pleasure. Incidentally when Clement prevaricated over Henry’s request he was in the power of the emperor Charles V, who just happened to be Catherine’s nephew.

  12. I like the Chesterton quote, though I'm not sure that I would describe popes like Alexander VI, Julius II and Leo III as the best representatives of 'Aristotelian liberality.' Libertines, certainly.

  13. But this is untrue, Ana. Did his two wives and Sir Thomas More - all of whom had their heads chopped off - owe allegiance to a foreign power? If you mean the Catholic Church was a foreign power it was a power that had served England well for the previous five hundred years. Catholicism created English liberty: The Jury system, The House of Commons, Common Law are all Catholic in origin; "they laid the foundations of Liber et Legalis Homo, the Free and Lawful Man", But now this concept was being eroded. I wonder why?

  14. Nobby, the Catholic Church was not a foreign power but the Pope was a foreign prince. You have to consider the nature of the early Renaissance papacy, particularly in the characters of the people I’ve alluded to. There was nothing in the least spiritual about Julius II, to take perhaps the most notorious example. Here I would refer you to Julius Excluded from Heaven, thought to have been written by Erasmus, a man who still remained loyal to the faith.

    The thing is, Nobby, the English Reformation is far more to do with politics than religion. Henry’s arguments for an annulment to his marriage to Catherine might have been taken seriously; an annulment at that point could very well have kept the English Church as part of the Catholic community. But Clement, after the ghastly sack of Rome in 1527, was in the power of the emperor Charles V, who deserves to be better known as the real architect of the English Reformation.

    Incidentally, Anne Boleyn was a committed Protestant, who had her head chopped off as an act of political convenience. Katherine Howard, much more orthodox insofar as she was capable of any serious thought, had her head chopped off because she was a traitor, so defined by her own sexual indiscretions. Thomas More did indeed place a higher loyalty to the Pope in Rome than the King in Westminster.

  15. For the sake of one last bite of this Tudor cherry I will make a final point Ana. If you judge the Monarchy on the same criteria as the Catholic Church do you suppose there would be any farther discussion beyond King John? I agree Henry was a Defender of the State - such a thing would be much welcome today - but he was certainly no Defender of the Faith despite the claim made on coinage of that time.

    "Power into will, will into appetite,
    And, appetite, an universal wolf."

  16. Nobby, actually I don't judge the monarchy by the same criteria as the church, considering the church to embody a spiritual idea. At the time of John and Innocent III the church still had a kind of universal mandate, uncomplicated by temporal and territorial power. At the time of the Renaissance popes temporal power was at a premium, with Julius acting and behaving like his pagan namesake. Henry was religiously orthodox but his principle concern was over the future of the monarchy. Even after the break he continued to 'defend the faith' by his own lights. As I say, there were times when it was positively dangerous to be a Protestant, a threat that carried even so far as Catherine Parr, his final queen.