The Source:
Geoffrey R. Elton, The Tudor Constitution: Documents and Commentary, Cambridge University Press 1968
CHAPTER 1: THE CROWN
I. THE TUDOR DYNASTY
The Tudors came to the throne as victors in a civil war; they held it because they fulfilled the first duty of kingship in governing effectively and to the satisfaction of the greater part of the realm. No Tudor, however, was ever altogether free from dynastic worries. They were an unhealthy and far from prolific stock; their rivals—especially the house of York—bred fast and lived long. The normal hazards of life in the sixteenth century would have caused anxiety enough; small families, matrimonial problems, and at last stubborn celibacy turned the anxiety into a standing political issue. Memories of disturbed successions, kept fresh by personal witness of such things in England and elsewhere, sufficed to make the misfortunes of the royal family a point of first importance to all who looked to it for a quiet and prosperous life.
Henry VII first had to assert a claim to the crown which was far from obvious. In the nebulous theory of the succession, hereditary right played the largest part, but in practice other factors were allowed to cut across it, provided some link in blood and descent existed. Exploiting this uncertainty, Henry VII took the simple line of describing himself as king once he had overthrown Richard III. Victory in battle (as God's verdict) and the acclamation of his host at Bosworth were points to be used to underline the fact; they were not by any means the legal bases of his claim. Descent from Edward III (though afflicted by the specific exclusion of his line pronounced by Richard II and confirmed by the pope) and the later marriage to Elizabeth of York were ways of harnessing the dynastic principle.
Yet none of these details should be called the foundation of the Tudor title. Nor was this parliamentary. The first Parliament of Henry VII—itself proof of his recognised kingship from the day of victory, since only a true king can summon a true Parliament—formally acknowledged Henry and his heirs as kings of England in a document which presents peculiar features. It is not strictly an act of Parliament, but rather a special petition of the Commons to which the king and Lords assented in an unusual formula; it has not even a chapter number and was not part of the statute. In fact, it simply followed the parliamentary proceedings by which Henry IV had had his claim confirmed in 1406. Essentially, all Tudors rested their title on accomplished fact, which, they argued, announced God's choice. And when God had bestowed the crown on them, who was to deny their right to it? In this very real sense, Tudor monarchy was monarchy by divine right.
By 1495 Henry VII was safe on the throne; with pretenders overcome and European recognition obtained, he saw that the time had come to close the chapter of the civil wars. The long series of attainders came to an end, while the so-called de facto act tried to reassure the king's late enemies. This act has been over-ingeniously explained. It does not make a distinction between a king who was so by right and one who held the position in fact only, as has commonly been alleged; it speaks only of one kind of king who is so ‘for the time being’, a common Tudor phrase which means no more than ‘at the time in question’. Allegiance to any such king is protected from later charges of treason. In conjunction with section ii, the general clauses protected adherence to Henry VII even if he should be opposed by a pretender claiming to be king by right, and thus encouraged people to follow him without thought of the consequences. Secondly the act announced an end to vengeance by retrospectively justifying allegiance to Richard III while he was the king ‘for the time being’, even though such allegiance had been treated as treason between 1485 and 1495. But thanks to section ii, the act did not help a man who deserted Henry VII in any future renewal of the civil wars. …
… Even though Henry VII had done much to establish his dynasty, doubts about the future could not be avoided. After eighteen years of Tudor rule, trusted Crown servants could still seriously debate whether in the event of the king's death they should follow his young heir or prefer an older man The death, in 1504, of Prince Arthur jeopardised the dynasty. However, Henry VIII came to the throne as an adult and to the music of general acclamation. He himself never had the faintest doubt about his right, by God's grace, to wear the crown.
But his failure to provide heirs, and the matrimonial adventures which in part grew from that failure, introduced serious complications into the succession. The divorce from Catherine of Aragon and marriage to Anne Boleyn necessitated the first Act of Succession which declared the Princess Mary illegitimate. The act differed from earlier parliamentary dealings with the throne in that it enacted a precise devolution of the crown instead of simply accepting the present king and his heirs in general. This feature was even more marked in the second Succession Act of 1536, called forth by the failure of the second marriage: it secured the crown to the issue of Jane Seymour and declared all previous issue illegitimate. Section ix of this act seemed to go very far in increasing the power of the Crown when it authorised the king to bequeath the throne by will, but not too much should be read into this. The power was created to meet the possibility that there might be no heir from the third marriage, and therefore no legitimate heir at all when Henry died. His will was to be effective only in such circumstances.
The clause really looks back to an older attitude which regarded the crown as a piece of private property subject to the laws applying to that; it marks no absolutist increase of royal power. It acquires significance when seen against the contemporary legislation respecting wills: even as the law for the first time admitted a man's right to bequeath his lands, so (in a way) it recognised the king's right to dispose of his hitherto equally unwillable crown. In any case, though the principle may seem extraordinary to an age which has depersonalised the Crown, this was a political and not a legal freak; the power ultimately depended on the Parliament which had granted it; and the king had no authority to leave his crown away from the heirs defined in the statute.
By 1544 the absence of a sufficiently large body of legitimate heirs demanded a third Succession Act. This confirmed the king's right to bestow the crown by will but expressed a desire for more public definition. In fact it directed the crown to Mary and Elizabeth in that order (previous bastardisations being now ignored), if both Henry and Edward should die without further heirs. In December 1546 Henry drew up his will which—to simplify its complications—left the crown to his three children and their heirs in the manner established in the last act; if their lines all failed it was to go to the heirs of his younger sister Mary (the Suffolk line). The only comment required is that the will did not come into operation until the death of Elizabeth in 1603 when the heirs of Henry's elder sister Margaret (the Stuart line, who had been ignored in 1546) succeeded without trouble or question. An earlier attempt to set both will and statute aside failed in 1553 when the duke of Northumberland tried to substitute the Suffolk line for Mary; thereafter Elizabeth's long life postponed the crisis until it had ceased to be one.
Of course, the succession remained a vital issue through much of her reign, and many both then and earlier had cause to regret blood links with the Tudors, but no further attempts were made to define the dynasty or its right publicly. Henry VIII's legislation drew attention to a basic problem which time rather than the law would solve.
It also exemplified a new power in parliament whose role in 1485 had been without significance to the nature of the Crown and of only marginal significance to its possessor; in 1534-44 it played a central and authoritative part. But it should be noted that the first two Succession Acts simply drew the necessary consequences from matrimonial vicissitudes outside the competence of parliament, while the third in effect embodied the king's private intentions as later expressed in his will.
[Documents and Commentary omitted]
II. THE NATURE OF KINGSHIP
The Tudors inherited a kingship which in its own right enjoyed very considerable powers both defined and undefined. England's medieval monarchy was by and large stronger in practice than any of its rivals in Western Europe, even if it made more moderate theoretical claims than that of France. Since the dynastic troubles of the fifteenth century never altered the potential power of the Crown, Henry VII found it necessary only to use afresh, not to recreate. The age was essentially monarchical: that is to say, the king was held to be the source and the centre of all political and social life. In their behaviour all the Tudor sovereigns stressed the semi-divine as well as the representative character of kingship: their courts and persons shone forth with a splendour which should be regarded as political propaganda rather than personal extravagance, and they insisted on ever greater deference.
Even Henry VII employed new styles and placed a greater distance between himself and his subjects; his formidable son and remarkable granddaughter proved to have both the physical appearance and the mental make-up to justify the lavish and often slavish adulation which they received from the mass of their subjects. From Henry VII onwards English kings gradually ceased to be ‘their graces’, and even ‘their highnesses’ came to enjoy more commonly the imported title of majesty. The Tudors added practical gains to kingship—especially the headship over the Church—but their first striking achievement was to make the Crown appear glorious, untouchable, and yet accessible. With all their pomp and ceremonial, Henry VIII and Elizabeth never cut themselves off from their people ; they could afford to condescend because they were so sure of their kingship.
The circumstances of the time—a disputed or uncertain succession, the weaknesses of a rudimentary police system, the problem of the Church, foreign threats—combined to direct thinking about kingship into the channel of absolute obedience, a doctrine entirely summed up in the 1547 Homily on the subject. The burden of much teaching and preaching was that the prince, God's gift to the nation, must never be resisted. In itself the doctrine formed part of the greater doctrine of order—of that divine order of the universe which men disturb at their peril; but its specific application usually stressed the absolute need to obey the prince's command which even for conscience sake must not be resisted.
In practice sixteenth-century Englishmen transgressed often enough against their duty of absolute obedience, and outside the pulpit and the pamphlet Tudor rulers were less concerned with the doctrine of obedience than the enforcement of order; but the principles of the Homily were at any rate representative of much conventional thought. In the reign of Mary, John Ponet doubted whether these principles justified acquiescence in a popish triumph, and under Elizabeth men like Nicholas Sanders or Robert Parsons regarded their obedience as due first of all to Rome; but, such interested exceptions apart, patriotism and king-worship combined to produce a general notion of unquestioning obedience to the divinely appointed king. The age held the notion the more fervently because in fact it was so full of lawless acts and ready disobedience.
However, the worst effects of byzantinism and adulation were subject to traditional modifications. Tudor kingship inherited not only potential absolutism (always implicit in medieval kingship) but also certain limitations. To be obeyed—in theory—a king needed only to be king; in practice it was tacitly assumed that he should be a just king. The tradition which looked back to Bracton's debet rex esse sub lege had recently received new formulation in the work of Chief Justice Fortescue which described the English Crown as dominium politicum et regale constitutional monarchy, and not dominium regale or absolute monarchy.
Fortescue of course admitted the ‘regal’ elements in English kingship—discretionary powers outside the definition of the law—but while in this necessary practical reservation there lay the germs of Stuart absolutism, under the Tudors it remained simply an admitted exception which was not abused. Not only lawyers stressed the position of the Crown under the law; even in Hooker's hands the point refers to the positive law of the realm rather than some nebulous law of nature to which all man-made law must conform. The law of nature was a sixteenth-century commonplace and to no one more important than to Hooker [below]; in this context it was more important that the king was thought of as subject to the common law of England and unable to tamper with it.
Even more significant was the growing conviction that though the king in person (rex solus) might be equipped with power he was yet subject to himself in parliament. As is shown below, a doctrine of parliamentary sovereignty—of an ultimate legislative supremacy vested in King-in-Parliament—was half-grasped and wholly practised after the constitutional revolution of the 1530’s. Not everyone would have put the point with the frankness which the special circumstances of 1559 induced in John Aylmer [below], but that the king assisted by Parliament was superior to the king in person was accepted by the Tudors themselves. Content with the reality of great political power, they never bothered to clothe it in a formal doctrine of absolutism. And capable though they were of arbitrary action, their deeds bore out the general tenet that monarchy exists under the law and is fully active only in co-operation with parliament.
[Documents and Commentary selected]
Sir Thomas Smith on the King (1565)
To be short, the prince is the life, the head and the authority of all things that be done in the realm of England. And to no prince is done more honour and reverence than to the king and queen of England; no man speaketh to the prince nor serveth at the table but in adoration and kneeling, all persons of the realm be bareheaded before him; insomuch that in the chamber of presence, where the cloth of estate is set, no man dare walk, yea though the prince be not there, no man dare tarry there but bareheaded. This is understood of the subjects of the realm: for all strangers be suffered there and in all places to use the manner of their country, such is the civility of our nation.
De Republica Atiglorum, 62-3
John Aylmer on Kingship (1559)
The regiment of England is not a mere monarchy, as some for lack of consideration think, nor a mere oligarchy, nor democracy, but a rule mixed of all these . . . the image whereof, and not the image but the thing indeed, is to be seen in the Parliament House, wherein you shall find these three estates: the king or queen, which representeth the monarch; the noblemen which be the aristocracy; and the burgesses and knights the democracy. ... If the Parliament use their privileges, the King can ordain nothing without them. If he do, it is his fault in usurping it and their folly in permitting it; wherefore in my judgment those that in King Henry VIII's days would not grant him that his proclamations should have the force of a statute were good fathers of the country and worthy commendation in defending their liberty. …
… To declare that it is not in England so dangerous a matter to have a woman ruler as men take it to be. For first it is not she that ruleth but the laws, the executors whereof be her judges, appointed by her, her justices of the peace and such other officers. … She maketh no statutes or laws but the honourable court of Parliament. … What may she do alone wherein is peril? She may grant pardon to an offender, that is her prerogative wherein if she err it is a tolerable and pitiful error to save life. She may misspend the revenues of the crown wantonly; so can kings do too, and commonly do, and yet they be kings. If on the other part the regiment were such as all hanged upon the king's or queen's will and not upon the laws written; if she might decree and make laws alone, without her senate; if she judged offences according to her wisdom and not by limitation of statutes and laws; if she might dispose alone of war and peace; if, to be short, she were a mere monarch and not a mixed ruler, you might peradventure make me to fear the matter the more. …
An Harhorowe…
Richard Hooker on Kingship (c. 1590)
In which respect I cannot choose but commend highly their wisdom by whom the foundations of this commonwealth have been laid; wherein, though no manner person or cause be unsubject to the king's power, yet so is the power of the king over all and in all limited that unto all his proceedings the law itself is a rule. The axioms of our regal government are these: ‘Lex facit regem’: the king's grant of any favour made contrary to the law is void: ‘Rex nihil potest nisi quod iure potest’. …
Ecclesiastical Polity (Works, III, 353)
King Henry VII, by unknown artist
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