Lex Terrae Victrix? The Limits of Parliamentary Law in the Henrician Reformation

For Geoffrey Elton, the accomplishment by statute of the break with Rome had two major constitutional effects. First, the royal supremacy was beholden to parliamentary authority. Second, common law – ‘the law of the land’ – triumphed over canon law and civil law. This article reconsiders Elton’s thesis through a study of the court of delegates. Created by act of parliament in 1534, delegates replaced Rome as the final court of appeal in ecclesiastical causes. The article is based on the court’s first surviving act-book, which covers the years 1539 to 1544. The court was run by the canon and civil lawyers who practised in the provincial church courts and in the high court of the admiralty. Once established by statute, the court applied its own interpretation of parliamentary legislation. Common law played no part in proceedings. The article therefore rejects Elton’s two claims, at least for the Henrician period. Instead, it argues that the break with Rome sustained a rival legal system that was not subordinate to ‘the law of the land’. The original version of the royal supremacy, the article suggests, was personal, rather than parliamentary.