But the hope that the pope would yield proved again delusive.
Henry wrote to him himself in the spirit of his conversation with Chastillon. His letter was presented by Cardinal Tournon, and Clement said all that could be said in acknowledgment without making the one vital concession. But whenever it was put before him that the cause must be heard and decided in England and in no other place, he talked in the old language of uncertainty and impossibilities;[417] and Henry learning at the same time that a correspondence was going forward between Clement and Francis, with the secrets of which he was not made acquainted, went forward upon his own way. April brought with it the certainty that the expected concessions were delusive. Anne Boleyn's pregnancy made further delay impossible. D'Inteville, who had succeeded Chastillon as French ambassador, once more attempted to interfere, but in vain. Henry told him he could not help himself, the pope forced him to the course which he was pursuing, by the answer which he had been pleased to issue; and he could only encounter enmity with its own weapons. "The archbishop," d'Inteville wrote to Francis, "will try the question, and will give judgment. I entreated the king to wait till the conference at Nice, but he would not consent. I prayed him to keep the sentence secret till the pope had seen your Majesty; he replied it was impossible."[418]
Thus the statute became law which transferred to the English courts of law the power so long claimed and exercised by the Roman see. There are two aspects under which it may be regarded, as there were two objects for which it was passed. Considered as a national act, few persons will now deny that it was as just in itself as it was politically desirable. If the pope had no jurisdiction over English subjects, it was well that he should be known to have none; if he had, it was equally well that such jurisdiction should cease. The question was not of communion between the English and Roman churches, which might or might not continue, but which this act would not affect. The pope might still retain his rights of episcopal precedency, whatever those might be, with all the privileges attached to it. The parliament merely declared that he possessed no right of interference in domestic disputes affecting persons and property.
But the act had a special as well as a national bearing, and here it is less easy to arrive at a just conclusion. It destroyed
the validity of Queen Catherine's appeal; it placed a legal power in the hands of the English judges to proceed to pass sentence upon the divorce; and it is open to the censure which we ever feel entitled to pass upon a measure enacted to meet the particular position of a particular person. When embarrassments have arisen from unforeseen causes, we have a right to legislate to prevent a repetition of those embarrassments. Our instincts tell us that no legislation should be retrospective, and should affect only positions which have been entered into with a full knowledge at the time of the condition of the laws.
The statute endeavours to avoid the difficulty by its declaratory form; but again this is unsatisfactory; for that the pope possessed some authority was substantially acknowledged in every application which was made to him; and when Catherine had married under a papal dispensation, it was a strange thing to turn upon her, and to say, not only that the dispensation in the particular instance had been unlawfully granted, but that the pope had no jurisdiction in the matter by the laws of the land which she had entered.
On the other hand, throughout the entire negotiations King Henry and his ministers had insisted jealously on the English privileges. They had declared from the first that they might, if they so pleased, fall back upon their own laws. In desiring that the cause might be heard by a papal legate in England, they had represented themselves rather as condescending to a form than acknowledging a right; and they had, in fact, in allowing the opening of Campeggio's court, fallen, all of them, even Henry himself, under the penalties of the statutes of provisors. The validity of Catherine's appeal they had always consistently denied. If the papal jurisdiction was to be admitted at all, it could only be through a minister sitting as judge within the realm of England; and the maxim, "Ne Angli extra Angliam litigare cogantur," was insisted upon as the absolute privilege of every English subject.
Yet, if we allow full weight to these considerations, a feeling of painful uncertainty continues to cling to us; and in ordinary cases to be uncertain on such a point is to be in reality certain. The state of the law could not have been clear, or the statute of appeals would not have been required; and explain it as we may, it was in fact passed for a special cause against a special person; and that person a woman.
How far the parliament was justified by the extremity of the case is a further question, which it is equally difficult to answer.
The alternative, as I have repeatedly said, was an all but inevitable civil war, on the death of the king; and practically, when statesmen are entrusted with the fortunes of an empire, the responsibility is too heavy to allow them to consider other interests. Salus populi suprema lex, ever has been and ever will be the substantial canon of policy with public men, and morality is bound to hesitate before it censures them. There are some acts of injustice which no national interest can excuse, however great in itself that interest may be, or however certain to be attained by the means proposed. Yet government, in its easiest tax, trenches to a certain extent on natural right and natural freedom; and trenches further and further in proportion to the emergency with which it has to deal. How far it may go in this direction, or whether Henry VIII. and his parliament went too far, is a difficult problem; their best justification is an exceptive clause introduced into the act, which was intended obviously to give Queen Catherine the utmost advantage which was consistent with the liberties of the realm. "In case," says the concluding paragraph, "of any cause, or matter, or contention now depending for the causes before rehearsed, or that hereafter shall come into contention for any of the same causes in any of the foresaid courts, which hath, doth, shall, or may touch the king, his heirs or successors, kings of this realm; in all or every such case or cases the party grieved as aforesaid shall or may appeal from any of the said courts of this realm, to the spiritual prelates and other abbots and priors of the Upper House, assembled and convocate by the king's writ in convocation."[419] If Catherine's cause was as just as Catholics and English high churchmen are agreed to consider it, the English church might have saved her. If Catherine herself had thought first or chiefly of justice, she would not perhaps have accepted the arbitration of the English convocation; but long years before she would have been in a cloister.