Regal Power and the Rule of Law: a Tudor Paradox

Abstract

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.