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Regal Power and the Rule of Law: a Tudor Paradox

Published online by Cambridge University Press:  16 January 2014

William Huse Dunham Jr.
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Extract

Tudor statesmen, in their statutes and debates, and Tudor jurists, in reports and treatises, recorded their awareness of an antithesis between regal power and political law. Political action and juridical argument made them increasingly sensitive to an oppugnancy between executive authority and constitutional control. Medieval men of law, too, had noted this inconsonance in England's polity. Sir John Fortescue, while Henry VI's Chancellorin-exile in 1468, faced the dilemma; but he resolved it only verbally. He wrote: “regal power is restrained by political law.” Then he added, “such is the law of the Kingdom” of England. So facile a formula as Fortescue's might make nice theory, yet it was one easier to prescribe than to apply to a live monarch.

The pragmatic Tudors, however, succeeded in surmounting the antithesis between political law and regal power, paradoxically, by augmenting both. To solve immediate political crises and to enhance the effectiveness of government, Privy Councilors and parliamentarians passed act after act that increased the King's prerogatives. At the same time, moreover, these very statutes afforced, by implication, the principles of political, or public, law. Kings and queens, judges and councilors, Lords and Commons during the sixteenth century formulated a concept of the rule of law and made it transcendant. By the 1590's they had accorded the rule of law statutory, judicial, and regal recognition. For the Tudor time-being, this principle served to balance regal power and political law and to give to this antinomy a congruity.

Type
Research Article
Information
Journal of British Studies , Volume 3 , Issue 2 , May 1964 , pp. 24 - 56
Copyright
Copyright © North American Conference of British Studies 1964

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References

1. This inherent conflict runs back to Henry I's Coronation Charter, 1100, and it still continues to provoke debates on Cabinet power. 5 Hansard, CLXVII, 327-79 [Power of the Cabinet, 17 May 1950]; cf. Committee on Ministers' Powers Report (London, 1932 and 1959)Google Scholar Cmd. 4060.

2. Bracton had already written in the 1250's that “the King ought not to be under man but under God and under law,” but he had also remarked that “the King who gives a liberty does not subject regal power to limitation — although he may restrict it in part by Grace.” de Bracton, Henry, De Legibus et Consuetudinibus Angliae, ed. Woodbine, G. E. (New Haven, 1915–1942), II, 33Google Scholar (fol. 5b): “rex non debet esse sub homine sed sub deo et sub lege, quia lex facit regem”; IV, 235 (fol. 396): quia rex qui libertatem dat potestatem regiam servituti non supponit, quamvis illam de gratia in parte restringat.” SirFortescue, John, De Laudibus Legum Anglie, ed. Chrimes, S. B. (Cambridge, 1942), p. 27Google Scholar: “dum potestas regia lege politica cohibetur.”

3. Political (public or constitutional) law contained rules and principles that determined the respective powers and functions among the governors and that directed and controlled their actions towards the governed — and vice versa. A statute of 1554-55 refers to dispensations “given by such order as the public laws of the realm then approved.” Luders, A., Tomlins, T. E., Raithby, J., et al (eds.), Statutes of the Realm (London, 1810–1828), 1 & 2Google Scholar Philip and Mary, c. 8, s. 12.

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11. The formulation of these principles of England's medieval polity as the foundation of modern British constitutionalism will be treated in a forthcoming book tracing their genesis, transmission, and transformation from 871-1603. Here, their existence prior to 1533 need be assumed.

12. The phrase, “by process of law and the custom of the realm,” appears in the Ordinances of 1311 (5 Edward II, c. 28), Statutes of the Realm, I, 164Google Scholar: “en cas ou le rei poet faire grace solom son serment, e ceo par process de ley, et la custume du Realme ….” An act of 1351 (Statutes of the Realm, 2 Hilary 25 Edward III, Statute 5, c. 4) contains the words: “in due manner, or by process made by writ original at the common law,” [“en due manere, ou process fait sur brief original a la commune lei”] and “forejudged of the same by the course of the law [“par vote de lei”]. The phrase, “the course of the law,” with its variants, occurs frequently in legal and constitutional contexts.

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17. Statutes of the Realm, 24 Henry VIII, c. 12, at p. 427.

18. Ibid., 31 Henry VIII, c. 8, at p. 726.

19. Ibid., 28 Henry VIII, c. 17.

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21. Statutes at Large, 24 George II, c. 24, s. 23. This Act states that the statutes, 28 Henry VIII, c. 17 and 1 Edward VI, c. 11 “are determined, and of no force or effect whatsoever.”

22. Statutes of the Realm, 19 Henry VII, c. 28.

23. Ibid., 23 Henry VIII, c. 20.

24. Ibid., 25 Henry VIII, c. 20.

25. Ibid., 25 Henry VIII, c. 21, s. 23.

26. Ibid., 28 Henry VIII, c. 7, s. 9 at pp. 659-60.

27. Ibid., 28 Henry VIII, c. 10. The Bishoprics Act, 1539, authorized the King to create bishoprics “by his letters patent … as if such things … had been done … by authority of Parliament.” (31 Henry VIII, c. 9).

28. Ibid., 34 & 35 Henry VIII, c. 26, s. 59.

29. Ibid., 34 & 35 Henry VIII, c. 26, s. 59.

30. State Papers Published under the Authority of His Majesty's Commission, King Henry VIII (London, 1830–1852), III, 278Google Scholar (30 Dec. 1540).

31. Ibid., I, 659 (21 July 1541). For the statute, Irish Statutes (Dublin, 1765)Google Scholar, 33 Henry VIII, c. 1 (I, 176) and Statutes of the Realm, 35 Henry VIII, c. 3.

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38. Ibid., 27 Henry VIII, c. 26, s. 1.

39. Ibid., 28 Henry VIII, c. 17, s. 2. Cf. 27 Henry VIII, c. 26, s. 29. The 1536 Succession Act (28 Henry VIII, c. 7, s. 10) provided that the nominee by will or by letter patent should succeed “as if the same crown of this realm had been given and limited … by the full and immediate authority of this your most high court of Parliament.”

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43. For example, Paget wrote to Petre (14 Dec. 1545): “If His Majesty dissolve [Parliament], I would wish there were an act to give His Majesty authority general for the order of all manner things, jurisdictions, laws etc. ecclesiastical ….” Here, the administrator desired an increase of regal power under authority of statute. Again, the King's power would have enjoyed an immediate, short-term gain, but at the cost of a long-term increase in statute's authority over both ecclesiastical laws and royal prerogative. PRO, State Papers 1/212/ fols. 22-23. Calendared in Letters and Papers, XX, Pt. 2, No. 982, at p. 483Google Scholar.

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47. H. E. Huntington Library, Ellesmere MS., 2655, fols. 7r-18v (Acta Consilii, 1509-27). Cf. Dunham, William Huse Jr., “Wolsey's Rule of the King's Whole Council,” A.H.R., XLIX (1944), 655Google Scholar.

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50. Statutes of the Realm, 26 Henry VIII, c. 13, s. 1 (1534).

51. Dunham, W. H. Jr. and Pargellis, S., Complaint and Reform in England, 1436-1714 (New York, 1938), pp. 130–31Google Scholar, with a facsimile of the title page and comment thereon.

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54. Brown, Rawdon (ed.), Calendar of State Papers, Venetian, 1534-54 (London, 1873), V, 431Google Scholar, c. 21 Oct. 1553. A report to the Pope by Henry Penning, Cardinal Pole's messenger, who had returned from England, contains the quotation: “Her Majesty gave me the copy of the oath taken by her at the coronation which she had thoroughly considered beforehand, and added a few words having for object to maintain Her Majesty's integrity and good-will (bona mente) [good intent], as may be seen by the identical copy.” Brown calendared this document and quoted from it accurately, from Codex XXIV, C1. X in St. Mark's Library, Venice. Unfortunately, the MS. now in the Biblioteca Marciana, Venice, is an eighteenth-century transcript, not the original, and, alas, does not include “the identical copy” of Mary's oath. Searches and inquiries in London, Oxford, and Cambridge failed to produce a copy of either Mary's oath or Elizabeth I's. There is reason to believe that the College of Herald's Library might contain a copy of Elizabeth's oath, but Sir Anthony Wagner, Garter King of Arms, was unwilling to let me consult MSS. cited by earlier historians as containing the coronation oaths of other sovereigns.

55. Cal. St. P. Sp., 1553, p. 240 (19 Sep. 1553)Google Scholar. Simon Renard wrote that Mary had added to the old and accustomed oath the words, “just and licit laws.” The coronation oath was by no means a dead symbol, rather a live issue as the changes made in it to meet political and religious exigencies during the fiftheeth, sixteenth, seventeenth, eighteenth, and twentieth centuries attest. The existence of versions of all the other sovereigns' oaths makes the absence of Mary's and Elizabeth I's all the more mysterious.

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66. Ibid., 1 & 2 Philip & Mary, c. 8, s. 1.

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68. Statutes of the Realm, 1 James I, c. 1.

69. Elton, , England under the Tudors, p. 218Google Scholar; Harbison, E. Harris, Rival Ambassadors at the Court of Queen Mary (Princeton, 1940), pp. 169–70Google Scholar, from de Noailles, A. and de Noailles, F., Ambassades de Messieurs de Noaillei en Angleterre, ed. de Vertot, L' Abbé (Leyden, 1763), III, 153–54Google Scholar. The ambassador reported that the Chancellor proposed a bill to the Privy Council and that Paget may have killed it there. He assumed that its purpose was to have Queen Mary will the crown and realm to King Philip.

70. Ponet, John, A Shorte Treatise of Politike Power (Strasburg, 1556)Google Scholar, sig. Eiii.

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74. Aylmer, John, An Harborowe for Faithful and True Subjects against the Late Blown Blast concerning the Government of Women (Strasburg, 1559)Google Scholar, sig. H 3, verso.

75. PRO, State Papers 12/1, fol. 1.

76. BM, Cotton MS., Titus CX, fol. 77v, headed, “The First Paper or Memorial/ of Sir William Cecil Anno/ primo Elizabethae.” The quotations are from a paragraph at the bottom of the page in different ink, but apparently from Elizabeth I's first year.

77. PRO, State Papers 12/1, fols. 12r-13v. Folio 12, in an Elizabethan hand, contains “words spoken by Her Majesty to Mr. Cecil” (one paragraph) and “Words spoken by the Queen to the Lords” (one longer paragraph). In pencil in the margin is “20 Nov.” which supposes 1558, which may be when she gave to Cecil “this charge, that you shall be of my Privy Council.” Folio 12v, in another and later hand, labels this paper, “Queen Elizabeth's speech to her Secretary and other the Lords before her coronation.” In a nineteenth-century pencil is added, “1558/9 Jan. the 14.” The more likely date for the words spoken to the Lords seems 20 November 1558 because Elizabeth began, “My Lords, the law of nature moveth me to sorrow for my sister ….”

78. Ibid., fols. 12r-13v.

79. PRO, State Papers 12/28, fols. 68-69. Why this bill, predicated upon the death of the thirty-one year-old Elizabeth failed of enactment, may be readily surmised. The quotations in this paragraph are from fol. 68v. Fol. 69v contains an illegible note ending, “not passed.”

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82. Elton, , Tudor Constitution, p. 222Google Scholar.

83. Statutes of the Realm, 5 Elizabeth I, c. 1, s. 11.

84. Gee, Henry and Hardy, W. J. (eds.), Documents Illustrative of English Church History (London, 1896), pp. 438–39Google Scholar.

85. Ibid., p. 439.

86. Elton, , Tudor Constitution, p. 314Google Scholar.

87. Ibid., p. 314.

88. D'Ewes, , Compleat Journal, p. 660Google Scholar.

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90. Coke, Edward, Reports, V, 8bGoogle Scholar, The English Reports (London, 1907), LXXVIIGoogle Scholar, King's Bench, VI.

91. Ibid., p. 8b.

92. Ibid., pp. 8b, 9a.

93. Ibid., p. 8b.

94. Ibid., pp. 8a-9a.

95. Ibid., p. 8a.

96. Ibid., p. 8a.

97. Aylmer, An Harborowe for Faithful and True Subjects, sig. H 3, verso. In 1576, Peter Wentworth, in parliament, had said: “for he is not a King in whom will and not the law doth rule.” Dunham, and Pargellis, , Complaint and Reform in England, 1436-1714, p. 263Google Scholar.

98. Hooker, Richard, Hooker's Ecclesiastical Polity, Book VIII, ed. Houk, R. A. (New York, 1931), p. 178Google Scholar: “Where the king doth guide the state, and the law the king, that commonwealth is like an harp or melodious instrument … following as laws the rules and canons of musical science.” Also, “the axioms of our regal government are these: ‘Lex facit regem’: the king's grant of any favor made contrary to the law is void: ‘Rex nihil potest nisi quod iure potest ….’” Cf. Elton, , Tudor Constitution, p. 17Google Scholar.

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100. Ibid., pp. 73, 62; 43, 89.

101. Ibid., p. 68.

102. Ibid., pp. 56; 40; 37, 43, 49, 73.

103. Ibid., pp. 32, 40.

104. Ibid., p. 66.

105. Ibid., p. 44; cf. p. 68.

106. Ibid., p. 44.

107. Ibid., p. 159, quoted as an insertion in MS. H.

108. Ibid., p. 46.

109. Ibid., p. 65.

110. Ibid., pp. 66, 67.

111. Ibid., pp. 67, 65, 66, 67, 66, 67.

112. Ibid., p. 61.

113. Ibid., pp. 48, 65, 64.

114. Ibid., pp. 32, 141, 66.

115. Ibid., pp. 141, 42.

116. Ibid., p. 54; Statutes of the Realm, 13 Elizabeth I, c. 1, s. iv: “the common laws of this realm not altered by parliament ….”

117. Lambarde, , Archeion, p. 140Google Scholar.

118. Ibid., pp. 140-41.

119. Ibid., p. 141.

120. Ibid., p. 123; cf. p. 128.

121. Ibid., pp. 58, 42.

122. Ibid., pp. 141, 39, 44.

123. Ibid., p. 43.

124. BM, Harley MSS., 6846, fols. 110v-111r; printed in Scott, , Somers Tracts, II, 162–63Google Scholar.

125. Ibid., fols. 110v-111r; Scott, , Somers Tracts, II, 162–63Google Scholar.