This is, of course, a very well-known subject of English history, with which students of ecclesiastical law will have been familiar from early childhood. Nevertheless, it is advantageous to apply a legal lens to the well-known historical facts. That is the aim of this paper.
The break with Rome was effected by certain Acts of Parliament, listed here in chronological order:
1532 Act concerning First Fruits and Tenths 23 H8 c.20
Ecclesiastical Appeals Act 24 H8 c.12
1533 Submission of the Clergy Act 25 H8 c.19
Appointment of Bishops Act (‘ABA’) 25 H8 c.20
Ecclesiastical Licences Act 25 H8 c.21
Act of Succession 25 H8 c.22
1536 Act of Supremacy 28 H8 c.10
Ecclesiastical Licences Act 28 H8 c.16
1540 Marriage Act 32 H8 c.38
The Henrician legislation was concerned to repudiate the juridical effects or incidents of papal supremacy. The content of the legislation suggests that these effects may be divided into two categories:
(1) a property-based, or tenure-based, feudal overlordship
(2) a supreme judicial authority over legal claims made in the ecclesiastical courts.
Thus ‘papal supremacy’ in the early 16th century meant that the Pope was both the supreme landlord and the supreme judge of the English Church. The relevant legislative provisions may therefore be divided into those regulating:
(1) ecclesiastical tenure and
(2) ecclesiastical jurisdiction.
The Church was reminded that its ‘honour and possessions’ had been settled on it by Monarchs and secular landowners, not by the papacy (Appeals Act 1532).
Feudal dues, known as annates and first fruits, paid to Rome by Archbishops and bishops, were declared unlawful and forbidden (recited ABA).
No ecclesiastical or lay person was to pay ‘any pensions … portions, peter-pence or any other impositions to the use of the … Bishop or of the See of Rome’ (Ecclesiastical Licences Act 1533, s.).
Candidates for episcopal office were no longer to be presented to Rome for papal approval. New Archbishops did not require the papal pallium (ABA, s.2).
The present procedure for appointing Archbishops and bishops was settled (ABA). New Archbishops and bishops received their ‘temporalities’ from the Monarch and took the oath of allegiance to him (s.5).
It was declared that Archbishops and bishops appointed before 1533 held their offices and property ‘by the authority of this present Parliament and not by virtue of any … foreign authority’ (Ecclesiastical Licences Act 1536, s.3). Likewise all other ecclesiastical officeholders held office by English law alone.
The subsequent dissolution of the monasteries was an assertion that all ecclesiastical property was now regulated exclusively by English law.
Before the Ecclesiastical Appeals Act 1532, judicial appeals lay to Rome in respect of wills, matrimony and tithes. That Act provided that such cases would in future be finally determined within the jurisdiction of England.
Although the papal jurisdiction was abolished, the English jurisdiction over wills etc was not secularised. It was acknowledged that the subject-matter of such cases ‘appertaineth to the spiritual jurisdiction of the realm’. That jurisdiction was not secularised until the 19th century.
The 1532 Act further provided that excommunications and interdicts from Rome should have no effect in England.
The following year, the Submission of the Clergy Act 1533 provided that no appeals could be made to Rome from the Convocations (s.4).
Then the Ecclesiastical Licences Act 1533 banned all legal claims or petitions to Rome, whether ‘for licences, dispensations, compositions, faculties, grants, rescripts … or any other instruments or writings … for any cause or matter’ (s.2). The Archbishop of Canterbury was granted jurisdiction to decide such claims instead. However, in important cases, the Archbishop’s grant of a licence, dispensation etc had to be confirmed by the Monarch or the Lord Chancellor (s.4).
If the Archbishop refused to grant a licence or other instrument, or were to refuse to exercise the former papal jurisdiction at all, the Lord Chancellor might compel him to do so (s.11). The Monarch was empowered to appoint two other bishops to exercise the jurisdiction in place of a reluctant Archbishop (s.12).
Papal indulgences and privileges granted prior to the 1533 Act were not revoked by the Act but were made subject to ‘ordering, redress and reformation’ by the Monarch in Council (s.21), which suggests a power to limit or even abolish them.
The second Ecclesiastical Licences Act, passed in 1536, went further than the 1533 legislation and cancelled ‘all bulls, briefs, faculties and dispensations’ formerly granted by papal authority (s.1). However, their owners could apply to the Court of Chancery or to the Council for an order to the same effect as the original papal instrument (thus confirming or saving it), provided that that effect was within the Archbishop of Canterbury’s jurisdiction under the 1533 Act (s.5, and see below).
As its modern title implies, the Submission of the Clergy Act 1533 was an assurance that the clergy would respect the newly-asserted royal supremacy over the Church. It provided that ecclesiastical legislation (i.e rules and decisions made by ecclesiastical authority) would not be made or put into effect if ‘contrary or repugnant’ to English law (s.3).
Apart from the prohibition of appeals to Rome mentioned earlier (s.4), the Act does little more than signify an acquiescence in the break with Rome that was effected by other legislation. The Act also promised a reform of ecclesiastical law that was never completed.
The Act of Supremacy 1536 completed the break with Rome by making it a criminal offence to ‘extol the authority’ of the Pope. All ecclesiastical and lay officeholders were required to swear an oath renouncing papal authority. The Act warned that refusal of the oath ‘shall be adjudged high treason’.
The Henrician legislation necessarily involved a religious claim, the God-given authority of the Monarch over the English Church (cf Appeals Act, preamble). In the pre-secular era, human law could not be separated from divine law. However, the ‘break with Rome’ was initially intended to be just that, limited to the repudiation of papal authority over England.
The Ecclesiastical Licences Act 1533 was at pains to make clear that no radical new doctrine was being advanced: ‘[nothing] therein contained shall be hereafter interpreted … to decline or vary from the congregation of Christ’s Church in any things concerning the very articles of the Catholic faith of Christendom; or in any other things declared by Holy Scripture and the Word of God necessary for … salvation …’ (s.13).
This remains the strict constitutional position to the present day. It is said that the English Reformation did no more than correct late mediaeval errors concerning the ‘very articles of the Catholic faith’, thus preserving them intact for the future. Papal overlordship and jurisdiction was itself seen as a late mediaeval error.
However, the break with Rome inevitably opened the door to further reassessments of Catholic doctrine. The Ecclesiastical Licences Act 1533 itself hinted at this. The jurisdiction inherited by the Archbishop of Canterbury from the Pope was limited to claims ‘not being contrary or repugnant to the Holy Scriptures and laws of God’ (s.2).
This, of course, implied a jurisdiction to decide questions of religious doctrine (i.e what was or was not contrary to Scripture and divine law). The Appeals Act 1532 also clearly asserted that the English Church was ‘sufficient and meet of itself … to declare and determine all [religious] doubts’ (preamble).
The first religious doctrine to be considered concerned marriage. It is well known that the break with Rome was precipitated by the controversy over Henry VIII’s marriages to his first two wives. Thus the break with Rome was followed by a reformed doctrine of marriage. Again, the Pope’s authority was considered in terms of its juridical effect, this time on marriage rather than ecclesiastical tenure and jurisdiction. More ‘other-worldly’ religious questions were addressed separately.
The two Acts of Parliament were concerned to regulate all marriage, not just royal marriage. The validity of marriage was then of critical importance to the legitimacy of children and hence to the succession of property. As mentioned, marriage was universally acknowledged to be a subject of ecclesiastical jurisdiction. The supreme ecclesiastical jurisdiction of the papacy therefore involved considerable control over the disposition of secular property.
The Act of Succession 1533 strongly affirmed the prohibition of marriage within the degrees prohibited by the Bible. It denied any human power to dispense from the divine prohibition.
This, of course, was the basis of Henry VIII’s claim that his marriage to Katherine of Aragon was a nullity. She had been married to his deceased brother. Judicial inquiry had supposedly proved that she ‘by him [the brother] was carnally known’ (s.2). Marriage to a sister-in-law was within the prohibited degrees. The Pope’s original dispensation permitting Henry’s marriage to Katherine was therefore invalid. The Pope had no power to permit what God forbade.
The Act therefore forbade all future marriages within the prohibited degrees, and provided that any persons so married should be separated, but only by the ‘definitive sentence’ of the English ecclesiastical courts and ‘none other power or authority’ (s.5).
The later Marriage Act 1540, by contrast, denied the Pope’s power to forbid any marriage not forbidden by divine law. This time he was accused of ‘making that unlawful which by God’s word is lawful’ (preamble). The Act provided that an unconsummated marriage contract was no bar to a subsequent marriage ‘solemnised in the face of the Church’. No prior dispensation was required for such a marriage. Likewise marriage between remote cousins was not within the prohibited degrees, and so was lawful, without any dispensation being required.
Thus the conclusion of these two Acts was that
(1) all marriages not forbidden by Scripture were lawful and
(2) no marriage forbidden by Scripture could be made lawful.
English marriage was therefore based on the divine law revealed in the Bible, but as interpreted by the Monarch, Parliament and the English ecclesiastical courts.
It should be noted that there was no denial at this stage that marriage was a sacrament. Nor was there any suggestion that human authority could dissolve a valid marriage. On the contrary, all unconsummated marriages not forbidden by Scripture were ‘lawful, good, just and indissoluble‘ (1540 Act, s.2).