Wednesday 27 November 2013

Historical Notes on Clause 8: Appeals to the Pope

Clause 8 states

De appellationibus si emerserint, ab archidiacono debent procedere ad episcopum, ab episcopo ad archiepiscopum, et, si archiepiscopus defuerit in justitia exhibenda, ad dominum regem perveniendum est postremo, ut praecepto ipsius in curia archiepiscopi controversia terminetur, ita quod non debet ultra procedere absque assensu domini regis.

As to appeals which may arise, they should pass from the archdeacon to the bishop, and from the bishop to the archbishop. And if the archbishop fail in furnishing justice, the matter should come to the lord king at the last, that at his command the litigation be concluded in the archbishop's court; and so because it should not pass further without the lord king's consent.

No appeals could be made to the pope out of England before the reign of king Stephen, when they were first introduced by Henry de Blois, bishop of Winchester, the pope's legate. Before that time any such attempt was rigorously opposed by the king. For example, a complaint was made by the pope to Henry I that he did not allow any appeals to be made to him. Before then, during the time of William Rufus  the bishops and barons strongly advised Anselm against doing it - to go to Rome without the king's consent on an appeal to the pope [see below].

Appeals were ceded during the reign of king Stephen, but the ban was resumed again under his successor, Henry II, by the Constitutions of Clarendon by the procedure described in clause 8, which provided that all causes could be settled within the kingdom.

Later on, during the reigns of Edward the First, the Second and Third a number of persons were imprisoned for making such appeals to Rome without the king's consent.

It was believed in the later Middle Ages that England was an independent sovereign nation with a monarch answerable only to God, in medieval parlance an empire, self-contained and sovereign.

Later on, during the reign of Henry VIII, various Acts of Parliament were passed absolutely forbidding any appeals to the pope in Rome, thereby upholding the general principle laid down in the Constitutions of Clarendon. The King was now the final legal authority for all religious matters in England and Wales.

References
Richard Burn (1763). Ecclesiastical Law. Appeals to the Pope in Rome: H. Woodfall and W. Strahan, and sold by A. Millar. pp. 41–.

Richard Burn (1788). Ecclesiastical Law. A. Strahan and W. Woodfall. pp. 52–9.

William Stubbs. Chronicles of the Reigns of Edward I and Edward II. Cambridge University Press. pp. 37–. ISBN 978-1-108-05142-2.

It was believed in the later Middle Ages that England was an independent sovereign monarchy answerable only to God: in mediaeval parlance an empire, self-contained and sovereign.
Noel Cox (2013). Constitutional Paradigms and the Stability of States. Ashgate Publishing, Ltd. pp. 119–. ISBN 978-1-4094-9797-4. "Footnote 108" 




Statutes of the Realm
https://archive.org/stream/statutes00britgoog#page/n358/mode/1up

Great Britain (1762). "Statue of Carlisle 1307: Forbidding the Sending of Monies to the Foreign Parent Institutions of Religious Establishments". The Statutes at Large: From the Magna Charta, to the End of the Eleventh Parliament of Great Britain, Anno 1761 [continued to 1806]. J. Bentham. pp. 326–.
The Law Library. J.S. Little. 1840. p. 27.

Waugh, W.T. (1922). "The great Statute of Praemunire". English Historical Review 37: 173–205.


Studies in the History of the Law of Nations
1970, pp 136-165
Early English Restrictions to Travel
Prof. Daniel Turack


 Anselm

In 1097, after William had put down a Welsh rebellion Anselm was charged with having not sent sufficient knights from his barony for the campaign and tried to fine him. Anselm wanted to appeal to Rome about this and seek the pope's advice because William had not fulfilled his promise of Church reform, but William did not assent. Either Anselm submiitted totally to the king's will on this or he faced exile.

When pressed in court to surrender his right of appeal to Rome, Anselm answered with the following: "You wish me to swear never, on any account, to appeal in England to Blessed Peter or his Vicar; this, I say, ought not to be commanded by you, who are a Christian, for to swear this is to abjure Blessed Peter; he who abjures Blessed Peter undoubtedly abjures Christ, who made him Prince over his Church."


Thomas Flanagan (1857). "Chapter XX :Anselm's Contest with king William Rufus". A History of the Church in England: From the Earliest Period, to the Re-establishment of the Hierarchy in 1850. Dolman. pp. 275–.


Henry de Blois

Henry of Blois, bishop of Winchester had objected to king Stephen for having arrested bishops and confiscating their property, as this was in breach of canon law. As papal legate to England Henry summoned a church council in 1139, to Winchester for Stephen to explain his behaviour. Both sides threatened excommunication and each stated they would appeal to Rome and the papacy for support.

Henry de Blois Oxford DNB


Appeals to Rome
John Inett (1855). Origines Anglicanæ: or, A history of the English Church, from the first planting of the Christian religion amongst the English Saxons (till the death of king John), 2 vols. 2 vols. [in 3].. pp. 241–.
...
 And so far was the church of England from allowing the bishops of Rome to rehear a cause which had been determined in its provincial councils, much less to remove a cause from thence by appeal, that it appears from the council of Clarendon, that there was no appeal from the archbishops but in some cases to the courts of the kings; but on the contrary it was received as a part of the law of England, that no bishop could go out of England without the king's leave, and that the bishop of Rome could send no legate into England but upon the king's particular desire. And this was so manifest, that at the agreement betwixt Henry the First and pope Calixtus at Gisors in France that prelate consented to this as the right of the crown of England. And if the bishop of Rome had no power to call a bishop to Rome, nor send a legate to take cognizance of any matter in England, it will be past a doubt that the aforesaid canons of Sardice were never received in England, at least not in that sense which is pretended to by some men. And as this shows us how steadily the church of England acted up to the council of Nice without suffering any foreign power to break in upon it, so the long controversy about the legatine power will in its proper place lead us to consider when and how these measures came to be changed.

Legatine Council of London c. 18th March 1151

Charles Purton Cooper (1850). Pamphlets. Stevens. pp. 2–.

Henry of Huntingdon (1879). Historia Anglorum. The History of the English from AC 55 to AD 1154: In Eight Books. Cambridge University Press. pp. 282–. ISBN 978-1-108-05141-5.
Rolls Series 74 ed Thomas Arnold

Chronicler Henry of Huntingdon [Archdeacon] writes

In Anglia namque appellationes in usu non erant, donec eas Henricus wintoniensisl dum legatus esset, malo suo crudeliter intrusit. ln eodem namque concilio ad Romani pontificis audientiam ter appellatus est. 

"appeals to Rome had not been the custom in England before the legateship of Henry of Winchester."

This Council was the occasion of three appeals to Rome.



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