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.

4. Gardiner, Stephen, The Letters of Stephen Gardiner, ed. Muller, J. A. (New York, 1933), pp. 390–92Google Scholar.

5. Ibid.

6. Froude, J. A., “Suggestions on the Best Means of Teaching English History,” Oxford Essays (London, 1855), p. 70Google Scholar.

7. Foxe, John, Actes and Monuments, ed. Cattley, S. R. and Townsend, G., (London, 1837–1841), VI, 46Google Scholar.

8. Barnhart, C. L. (ed.), American College Dictionary (New York, 1948)Google Scholar, sub, constitution, with example, “the British constitution.”

9. Neville, Henry, Plato Redivivus (4th ed.; London, 1763), pp. 138, 143–44Google Scholar; p. 130: “The people by the fundamental laws, (that is, by the constitution of the government of England) have entire freedom in their lives, properties, and their persons ….” Ibid., p. 132: “a broken frame of government”; for Halifax's phrase, see Costin, W. C. and Watson, J., The Law and Working of the Constitution (London, 1952), I, 340Google Scholar. North, Roger, Examen (London, 1740), p. 332Google Scholar: [Marginal note] “the word constitution apt to be mistaken, and misapplied”; he then elaborates in the text: “instead of the old way of expression, the laws of this kingdom or nation, his majesty's laws, the laws of the land, or the common law, some affect to use the word constitution; which, in itself, is no ill word, … But it is commonly brought forth with a republican face, as if it meant somewhat excluding, or opposite to the monarchy … which latter term, viz. the Monarchy of England, as of old, so still, implies the whole law; as the crown … is maintained to be Fons Justitiae: and it is no where to be found that the crown was one thing, and the constitution another; but the constitution of England, is the monarchy established by law.” Despite North's admirable intention to clarify these terms precisely, he concludes by comprehending law, laws, monarchy, and Crown in the constitution. Just so had Tudor legists embraced king, law, and realm in their concept of the Crown. Cf. Idem, p. 435. Gough, J. W., Fundamental Law in English Constitutional History (Oxford, 1955), ch. ix, pp. 140–59Google Scholar, presents numerous quotations, 1670-89, containing the word, constitution. It seems to connote the form, frame, or structure — the institutions — of government more often than it signifies a system of principles or the mysteries of the fundamental law.

10. New English Dictionary on Historical Principles, sub, constitution, 7; cf. 6. “The mode in which a state is constituted or organized ….”

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.

13. McKechnie, W. S. (ed.), Magna Carta (Glasgow, 1914), p. 465Google Scholar [c. 61], “cum communa tocius terre”; and the Provisions of Oxford, “le commun de la tere,” Stubbs, W., Select Charters, ed., Davis, H. W. C. (Oxford, 1929), p. 381Google Scholar.

14. BM, Harley MSS., 6846, fols. 110v-111r. Printed in Scott, Walter (ed.), Somers Tracts (London, 1809–1815), II, 162–63Google Scholar. The 1809 edition implies that the tract was printed in 1611 and “reprinted” in 1641.

15. Statutes of the Realm, 24 Henry VIII, c. 12, at p. 427; 25 Henry VIII, c. 19, at p. 460.

16. New English Dictionary, sub, empire, II, 7, citing 24 Henry VIII, c. 12.

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.

20. Ibid., 1 Edward VI, c. 11. Tanner, J. R., Tudor Constitutional Documents (Cambridge, 1930), p. 100Google Scholar, note 3: “It was repealed in the first Parliament of [Edward VI's] reign.”

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.

32. Rymer, Thomas, Foedera (London, 1726–1735), XV, 110–17Google Scholar; Brewer, J. S., Gairdner, J., and Brodie, R. H. (eds.), Letters and Papers, Foreign and Domestic, of the Reign of Henry VIII (London, 1862–1910), XXI, Pt. 2, p. 634Google Scholar. Cf. Smith, Lacey B., “The Last Will and Testament of Henry VIII,” J.B.S., II (1962), 14–27CrossRefGoogle Scholar, at 16, note 4. The crown was to go to Mary “upon condition that” she marry only with the Privy Councilors' consent. Should Mary do otherwise, the Statute of 1543 (35 Henry VIII, c. 1, s. 2) provided that the crown then go to Elizabeth “in such like manner and form as though … Lady Mary were then dead without any heir of her body begotten.” Section 1 states that “the King … might by authority of the said Act” (28 Henry VIII, c. 7) give the crown “by his letters patent or his last will” — thereby resting this prerogative ultimately upon statute law.

33. Gardiner, , Letters of Stephen Gardiner, p. 399Google Scholar; Foxe, Acts and Monuments,

34. State Papers … King Henry VIII, I, 392Google Scholar.

35. Statutes of the Realm, 25 Henry VIII, c. 21, s. 1.

36. Ibid., 25 Henry VIII, c. 21, s. 1.

37. Ibid., 31 Henry VIII, c. 8, s. 1.

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.”

40. Maitland, F. W., The Constitutional History of England (Cambridge, 1946), p. 254Google Scholar; Elton, G. R., The Tudor Revolution in Government (Cambridge, 1953), p. 426CrossRefGoogle Scholar.

41. Dasent, J. R. (ed.), Acts of the Privy Council (London, 1890), II, 33Google Scholar; Statutes of the Realm, 28 Henry VIII, c. 7, s. 11; 34 & 35 Henry VIII, c. 23; 3 & 4 Edward VI, c. 10, s. 1: “by authority of this present act.”

42. Ibid., 25 Henry VIII, c. 19, s. iii; 3 & 4 Edward VI, c. 11, s. 5.

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.

44. Churchill, E. F., “The Dispensing Power and the Defence of the Realm,” Law Quarterly Review, XXXVII (1921), 412–41Google Scholar, at pp. 415, 417. Elizabeth I granted licenses and dispensations generously against acts of Parliament and even “ordered a partial suspension of the [Navigation] Acts in favor of France.”

45. Statutes of the Realm, 7 Edward VI, c. 2, ss. 1, 2.

46. Hume, David, The History of England (London, 1807), IV, 269Google Scholar [c. 33, 1547].

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.

48. Gardiner, Stephen, Obedience in Church and State, ed. Janelle, Pierre (Cambridge, 1930), p. 89Google Scholar; cf. Tyler, R. (ed.), Calendar of State Papers, Spanish, 1553 (London, 1916), p. 240Google Scholar (19 Sep. 1553), S. Renard's report: “it was not meet [for Mary] … abnegare eum [Deum] per quem reges regnant.”

49. Elton, G. R., The Tudor Constitution (Cambridge, 1960), p. 269Google Scholar. Ferrer's case (1543) about which Elton shows a pointed, and proper, skepticism and remarks, “this is not a source of first-rate reliability.” p. 257, note 1.

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.

52. BM, Cotton MS., Tiberius E. VIII, fol. 89v. Printed in Legg, L. G. W., English Coronation Records (Westminster, 1901), p. 241Google Scholar.

53. Dasent, , Acts of the Privy Council, II, 31Google Scholar. BM, Harley MSS., 2308, fols. 1r-2v, describing Edward VI's coronation, also contains the oath; but Harley MSS., 3504, fols. 232r-33v, describes the coronation yet omits the oath.

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.

56. Cal. St. P. Ven., 1534-54, V, 460Google Scholar. Reginald Pole to Cardinal di Monte, 8 Feb. 1554.

57. For example, Elton, G. R., England under the Tudors (London, 1960), p. 216Google Scholar.

58. Statutes of the Realm, 1 Mary, Statute 2, c. 1, s. 1. (Oct. 1553).

59. Ibid., 1 Mary, Statute 2, c. 1, s. 1; and 1 Mary, Statute 2, c. 2, s. 1.

60. Elton, , England under the Tudors, pp. 218–19Google Scholar.

61. Statutes of the Realm 1 & 2 Philip & Mary, c. 6. (1554-55).

62. Ibid., 1 & 2 Philip & Mary, c. 8, s. 20.

63. Hart, H. L. A., The Concept of Law (Oxford, 1961), pp. 92–100, 103Google Scholar.

64. Statutes of the Realm, 1 & 2 Philip & Mary, c. 8, s. 13, at p. 251; s. 24.

65. Ibid., 1 Mary, Statute 3, c. 2, s. 2. (April 1554).

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

67. Ibid., 1 & 2 Philip & Mary, c. 8, s. 1. Cf. A Discourse upon the Exposition & Understandinge of Statutes, ed. Thorne, S. E. (San Marino, 1942), p. 113Google Scholar: “But what if all the bishops make default, or what if all the lords spiritual & temporal be absent, yet it is said that the King with his commonalty may keep the Parliament alone, for the Commons have every of them a greater voice in Parliament than hath a lord or bishop.” Thorne dates this tract between 1557 and 1571. Ibid., p. 93. But Plucknett restricted the dates to March 1563-67 and suggested that Ellesmere himself was the author. Plucknett, T. F. T., “Ellesmere on Statutes,” Law Quarterly Review, LX (1944), 242–49Google Scholar. Max Radin answered the question, “Who wrote the Discourse? Probably not Egerton.” Radin, Max, “Early Statutory Interpretations in England,” Illinois Law Review, XXXVIII (1943–1944), 16–40Google Scholar, at p. 17.

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.

71. Elton, , Tudor Constitution, p. 295Google Scholar (No. 151), 306-07; Elton, , England under the Tudors, pp. 216–18Google Scholar; Neale, J. E., Elizabeth I and Her Parliaments, 1559-1581 (London, 1953), pp. 22–26Google Scholar.

72. Statutes of the Realm, 1 Mary, Statute 3, c. 1.

73. BM, Harley, MS., 6234, fols. 10r-25v, entitled, Itinerarium ad Windsor./written by William Fleetwood/ Esqr. Recorder of the City of London./ This tract is in the form of a conversation between Fleetwood, Robert, Earl of Leicester, and Thomas, Baron Buckhurst. The travellers discussed the regal powers, rights, and status of a queen regnant. Among other items, they spoke of the variety of England's laws, including laws of the Crown, the Crown itself, and the King's two bodies. The story of the statute's origin is in fols. 20r-23v.

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.”

80. SirD'Ewes, Simonds, A Compleat Journal of the Votes, Speeches and Debates … the Reign of Queen Elizabeth (London, 1693), p. 660Google Scholar.

81. Neale, , Elizabeth I and Her Parliaments, 1559-1581, p. 142Google Scholar.

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.

89. Camden, William, Annales Rerum Anglicarum et Hibernicarum regnante Elizabetha (London, 1615), p. 266Google Scholar [Latin ed.] (London, 1625), p. 369 [English ed.]. Bk. II as of 1576. “Et ius quoddam esse Majestatis (Praerogatiuam Regiam vocitant) quae legibus non subijcitur, [sic] nec tamen legibus adversatur, ut Iurisprudentes iudicarunt.” Later editions of the Annales translate these words with greater liberty and may reflect a clarification of constitutional concepts. That of 1688 (p. 219) reads: “a privilege of the Crown (otherwise called a royal prerogative) … is not subject to the laws, and yet it is not repugnant to the laws, as the learned in the laws have judged.” Camden's observation was made anent the Irish nobility's refusal to pay a “ceas” in 1576-77 which, they asserted, was “not to be exacted, but by authority of Parliament.” The Privy Council held to the contrary, as “the records of the kingdom's Exchequer” proved the ceas to be “an ancient institution” and “a privilege of the crown.”

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.

99. Lambarde, William, Archeion or, a Discourse upon the High Courts of Justice in England, ed. McIlwain, C. H. and Ward, Paul L. (Cambridge, 1957), pp. 64, 68, 71, 95CrossRefGoogle Scholar; 67, 71, 72, 73; 40, 61-62, 67; 31, 37, 42, 44. For the dating of the Archeion see pp. 145-63- Part of the tract was begun first in 1579; additions were made in 1586 and later; a complete version sent to Sir Robert Cecil in 1591 was the basis of the printed editions of 1635. For present purposes, the date of composition may be taken to have been 1591 or 1591-98.

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.