II Conflict of Laws: 1500–1766

PART II

CONFLICT OF LAWS 1500–1766

CHAPTER 10

THE social turmoil occasioned by the Wars of Roses, and the time it took for the new Tudor dynasty to assert its supremacy, unsettled the rule of law. To what extent is open to debate, but it was the perception at the time. Since the 1460s, maintained Richard III’s parliament, the realm had been ‘ruled by self-will and pleasure, fear and dread’, and ‘all manner of equity and laws [had been] laid apart and despised’.1 For chaos to be banished and order imposed, for the law to be enforced, and for justice to be administered, a strong central authority was needed. The Tudor dynasty provided this, but the measures successive monarchs took to maintain law and order and the way they took them could also threaten the integrity of the common law. The exercise of the royal prerogative enabled effective and decisive government under the Tudors – who were adept at increasing the power of the Crown without seeming to endanger the constitutional balance or the rule of law – but under the less astute Stuarts engendered unease over the extent of arbitrary royal power.

The prerogative was exercised outwith parliament or the common law courts. It was necessary that the Crown retained some undefined executive power to deal with unforeseen and unforeseeable contingencies of administration and with political crises. But prerogative unrestrained smacked of the Roman imperial tradition and despotic theocratic monarchy, rather than the more contractual ‘Germanic’ kingship championed in England since Magna Carta or before. The relative power of the prerogative varied with the standing of the incumbent king. Under Edward I the prerogative was powerful indeed. Under his son it atrophied. During the century from the downfall of Richard II to the death of Richard III it lost ground to the more ‘constitutional’ view of kingship, but survived as a necessary adjunct to government, as it does to this day. Using the prerogative, in the Middle Ages kings had issued ‘ordinances’ which had the force of law. By Tudor times it was ‘proclamations’. In 1539 parliament, perhaps a little overawed by the personality of the incumbent king, had even given statutory sanction to the deployment of this regal legislative fiat. The Statute of Proclamations was passed which empowered Henry VIII, in an emergency, to issue proclamations that would have the same force ‘as though they were made by act of parliament’.² Whatever the overt purpose of the act, the fear was that it gave the king such powers to legislate as would undermine the constitution. But for its repeal in the reign of Henry’s less intimidating son, Edward VI, an English king could ‘have been as despotic as a French monarch’. Instead, repeal left ‘to proclamations only such weight as they might possess at common law’.³ That weight differed over time, and the assessment of it was never easy.

Even so powerful and forceful a monarch as Henry VIII, who could sway his judges, browbeat his parliament, and manipulate the legal process, nonetheless acted within legal forms and procedures, and accepted the general view of the Tudor age that even the king was bound by the law.⁴ He could not use the prerogative to defeat lawful rights and long-held liberties. His officials could not use it as a shield for illegal acts they had committed at royal command. The king should be the very epitome of justice. Since a lawful resolution of an issue or dispute was not always a just one, equity (the expression of the king’s conscience) and Star Chamber (another adjunct of the king’s council) would remedy the inadequacies or injustices of an earlier royal creation, the common law.