The Limits of Law

Extract

You will remember that in the final stage of the trial of Sir Thomas More, when, according to William Roper, Sir Thomas had alleged that the law of God overrode the laws of England, and that, in addition, the indictment, which relied on the word ‘maliciously’ to bring More under the Statute, was faulty, the Chancellor, Audley, momentarily shaken by his predecessor’s eloquence and known legal wisdom, turned to his colleague the Chief Justice, Sir John Fitzjames, and asked him what he thought of the indictment. Fitzjames was not to be caught. ‘My lords all, by St Julian’, he replied, ‘I must needs confess that if the acte of parliament be not unlawful, then is not the indictment in my conscience insufficient.’ Thus saying, he threw the case back upon the Act of Supremacy, with the implication that a Statute was beyond the reach of criticism.

As it happens, the latest of all Tudor historians, in a remarkable survey that appeared only a few months ago, gave it as his opinion that in the years 1530-3 a great revolution in legal and political theory and practice was achieved in England: that Parliament—that is, of course, the king in Parliament—became then both in theory and practice what it has ever since remained, the self-sufficient, omnicompetent legislative body. That this was so in foro externo was proclaimed and understood at the time. The legislative competition of the Church, whether in the form of ancient canon law or new decretals, or in the form of conciliar decrees in England, had been for the future eliminated by Henry VIII.