Front Page Titles (by Subject) Appendix - Constitutionalism: Ancient and Modern
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Appendix - Charles Howard McIlwain, Constitutionalism: Ancient and Modern 
Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
First published in 1940 by Cornell University Press. Material from the Revised Edition copyright 1947 by Cornell University, copyright renewed 1975; it has been included by permission of the original publisher, Cornell University Press.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
In the last session of the Reformation Parliament in 1536 two remarkable statutes were enacted truly revolutionary in character, the Statute of Uses with which the above case of Wimbish v. Tailbois is concerned, and the act transferring to the Crown the property of the lesser monasteries. Both these acts involve an invasion of private right by parliament almost, if not entirely, without precedent before 1536 and far more revolutionary than the Statute of Proclamations enacted by a subsequent parliament three years later, which has been called “the English Lex Regia” and termed even by Maitland “the most extraordinary act in the Statute Book” (The Constitutional History of England, p. 253). These two statutes of 1536 therefore mark an important early stage in the developments which led in the course of time to the constitutional doctrine of parliament’s omnipotence and the modern theory of legislative sovereignty.
In the reign of Edward II parliament had, it is true, transferred from the reversioners to the Hospitallers lands formerly belonging to the Templars; but this was only some years after Pope Clement V had totally suppressed the Order of the Templars in his bull Vox in excelso, and the transfer was expressly said by the Judges and Council to be “for the Health of their Souls and Discharge of their Consciences,” because these lands had originally been granted for pious uses only, and “insomuch as the foresaid Order of the Templars is ceased and dissolved, and the foresaid Order of the Hospital is provided, instituted, and canonized for the defence of Christians” (17 Edward II, stat. II, 1323–4, Statutes of the Realm, I, 194ff.). This was in essence a judicial decision based on a principle closely analogous to the Cyprès doctrine of the later courts of Equity. Doubts of the statute’s validity seem to have persisted however, for in 1330 there was a petition in parliament praying for its annulment on the ground that it had been obtained by the Despencers by force, and was “contre Ley et contre reson” (Rot. Parl. II, 41–42). In the king’s responsio to this petition the matter was reserved for action in a later parliament, but no record of any such action is known. During the Hundred Years’ War parliament had also dealt in a somewhat similar way with the lands of the alien priories.
As encroachments upon private right and departures from common law by mere authority of parliament, these and all such earlier cases, however, fall considerably short of the act of 1536, in which the Lords and Commons “humbly desire the King’s Highness that it may be enacted by authority of this present Parliament, that his Majesty shall have and enjoy to him and his heirs forever” all the lands and goods of monastic houses not having revenues above two hundred pounds a year (27 Henry VIII, C.28, Statutes of the Realm, III, p. 575 ff.); an act directed not against “alien” houses, and not in time of war. For the bad eminence as “the most extraordinary act in the Statute Book,” I should therefore be inclined to nominate this revolutionary act of 1536, expropriating the lands of the lesser monasteries, in place of the usual greatly limited and short-lived Statute of Proclamations, enacted by a later and apparently somewhat less subservient parliament; at least if contemporary rather than modern standards are to be taken into account. The story told by Sir Henry Spelman of the pressure required to secure the passage of this statute seems not improbable. The bill had originated with the King himself, and not with the Commons (F. C. Dietz, English Government Finance 1485–1558, University of Illinois Studies in the Social Sciences, vol. IX, no. 3, 1920, p. 120); and, as Spelman reports the tradition, “It is true the Parliament did give them [the lesser monasteries] to him, but so unwillingly (as I have heard), that when the Bill had stuck long in the lower house, and could get no passage, he [the King] commanded the Commons to attend him in the forenoon in his gallery, where he let them wait till late in the afternoon, and then coming out of his chamber, walking a turn or two amongst them, and looking angrily on them, first on the one side, then on the other, at last, I hear (saith he) that my Bill will not pass; but I will have it pass, or I will have some of your heads: and without other rhetoric or persuasion returned to his chamber. Enough was said, the Bill passed, and all was given him as he desired” (The History and Fate of Sacrilege, ed. of 1895, p. 99).
In an earlier session of the Reformation parliament an ominous prelude to the Act of Dissolution appears in the preamble to the statute of 1534 (25 Henry VIII, chap. 21, Statutes of the Realm, III, 464), concerning Peter’s Pence and papal dispensations, in which it is declared, that
It standeth therefore with natural Equity and good Reason, that in all and every such laws human made within this Realm, or induced into this Realm by the said Sufferance, Consents and Custom, your Royal Majesty, and your Lords Spiritual and Temporal, and Commons, representing the whole State of your Realm, in this your most high Court of Parliament, have full Power and Authority, not only to dispense, but also to authorize some elect Person or Persons to dispense with those, and all other human Laws of this your Realm, and with every one of them, as the Quality of the Persons and Matter shall require; and also the said Laws, and every of them, to abrogate, annul, amplify or diminish, as it shall be seen unto your Majesty, and the Nobles and Commons of your Realm present in your Parliament, meet and convenient for the Wealth of your Realm.
This, however, is only a preamble; and “the object of Tudor preambles,” as Dr. Tanner says, “is not to tell the truth but to make out a case.” The enacting clauses themselves “abrogate” no provisions which their makers professed to regard as true law, but only such as were termed usurpations or involved an “unlawful paiment.” Notwithstanding this sweeping inclusion in the preamble of all human laws, this statute, therefore, constitutes no revolutionary break with the past comparable with the act of dissolution two years later, but its remarkable language is a no less interesting indication of men’s changing notions concerning the relation of government to law. It is noteworthy that the legislative power here claimed for parliament is a power not directly to make new law, but to annul, enlarge, or restrict the old. Such preambles as these were not alone apologies for the specific enactment immediately following: they were part of the royal propaganda to ensure the passage of more drastic legislation in the future. The startling character of that propaganda proves alike the newness of the proposals made and to be made and the opposition to them to be expected.
Hardly less revolutionary than the Act of Dissolution was the contemporary proposal which failed of enactment, for setting up a new court of “Conservators” with jurisdiction in cases where “anye persone or persones shall chaunce at any tyme hereaftir within any Counties or liberties of this Realme or within any other place of any of the King our soueraine lordis dominions as well in and vpon lande as in or vpon any watirs freshe or Salte to doo or tattempte any devise practice or experience whiche hathe bene is or in tyme to come shal be thought vnto the said Conservatours to bee hurtefull or preiudiciall to the Comon Weale of this Realme, and none Acte, statute prouysion or ordynaunce made for Refourmacion of the same” (Transactions of the Royal Historical Society, 4th ser. XIX , 143–144). This provision, if it had become law, would have rivaled in arbitrariness the German Penal Code Amendment Law of 1935 authorizing the Courts to punish as offenses acts which no law had ever forbidden. See, on the general principles involved in this proposed legislation, the admirable article of Professor Jerome Hall, “Nulla Poena sine Lege,” Yale Law Journal, XLVII, no. 2 (December, 1937).
The legality of the Act of Dissolution and of similar “legislation” was unquestionably a matter of some doubt in the minds of the lawyers of the time. In 1532 Christopher Saint German declared in his Treatise concernynge the division betwene the spiritualtie and temporaltie: “It is holden by them that be lerned in the lawe of this royalme, that the parlyamente hath an absolute power as to the possession of all temporall thynges within this realme, in whose handes so ever they be, spiritualle or temporalle, to take them froo one manne, and gyve theym to an nother withoute anye cause or consideration. For if they doo it, it byndeth in the lawe” (The Apologye of Syr Thomas More Knyght, ed. Arthur Irving Taft, Early English Text Society, London, 1930, app., p. 228).
To this assertion of the absolute power of parliament, Sir Thomas More gave the following answer:
But by what right men maye take awaye from any man spyrytuall or temporall agaynste hys wyll, the lande that is al redy hys owne that thynge thys pacyfyer [Saint German] telleth vs not yet. . . . But I have herde some good and wyse and well lerned men saye, that all the worlde can neuer brynge the reason that euer can preuve it ryghte. . . . For all be it that onys in the tyme of the famouse prynce kyng Henry the fourth, aboute the tyme of a greate rumble that the heretykes made, whan they wolde have destroyed not the clergye onely but the kynge also and hys nobylbte to there was a folysshe byll and a false put into a parleament or twayn, and spedde as they were wurthy: yet had I neuer founden in all my tyme whyle I was conuersaunt in the courte, of all the nobylytie of thys land aboue the nomber of seuen (of whyche seuyn there are now thre dede) that euer I perceyued to be of the mynde, that it were eyther ryght or reasonable, or could be to the realme profytable without lawful cause, to take any possesyons awaye from the clergy, whyche good and holy prynces and other deuoute vertuouse people, of whome there be now many blessed sayntes in heuen, have of deuocyon towards god geuyn to the clergy to serve god and praye for all Chrysten soulys. (Op. cit., pp. 86–94)
Further evidence of the doubts existing in the reign of Henry VIII concerning the authority of parliament thus to “legislate” appears in the elaborate preparations for the act of dissolution, in the visitations, the reports of the visitors, and the long apologetic preamble to the statute itself, reciting the monastic abuses found and piously attributing the statute to the King’s reforming zeal in “daily finding and devizing the increase, advancement, and exaltation of true doctrine and virtue in the said Church, to the only glory and honour of God and the total extirping and destruction of vice and sin.” For hypocrisy and studied mendacity this preamble has but one rival, the preamble which the government felt it necessary to prefix to the statute of 1539 ratifying the dissolution of the larger monasteries. The act of 1536 had contemplated sending inmates of the dissolved smaller houses to live in the larger, “considering also that divers and great solemn monasteries of this realm wherein, thanks be to God, religion is right well kept and observed, be destitute of such full numbers of religious persons as they ought and may keep.” After that admission it was difficult even for Henry VIII to attempt a direct dissolution of the larger houses, on the former pretext of “manifest sin, vicious, carnal, and abominable living,” and therefore it is asserted in the preamble of the act of 1539, flatly contrary to fact, that these larger houses had surrendered all their lands and goods to “our said Sovereign Lord, his heirs and successors for ever,” “of their own free and voluntary minds, good wills, and assents, without constraint, coaction, or compulsion of any manner of person or persons . . . by due order and course of the common laws of this his realm of England, and by their sufficient writings of record under their convent and common seals” (31 Henry VIII, c. 13, Statutes of the Realm, III, p. 733). The truth is, as Dugdale says, that the monks of these larger monasteries were induced to surrender their houses to the King “partly through corrupting the chief in each of them, with large pensions, during their lives: and partly by terror, to such as were not plyant” (The Baronage of England [London, 1675], I, The Preface).
The uncertainty as to parliament’s inherent authority to violate rights guaranteed by earlier law thus indicated is also reflected in the comments of Sir Edward Coke upon the procedure by bill of attainder in the case of Thomas Cromwell in 1540. In the section on the High Court of Parliament in his Fourth Institute, he says,
And albeit I finde an attainder by Parliament of a subject of High Treason being committed to the Tower, and forth-comming to be heard, and yet never called to answer in any of the Houses of Parliament, although I question not the power of the Parliament, for without question the attainder standeth of force in law; yet this I say of the manner of the proceeding, Auferat oblivio, si potest; si non, utcumque silentium tegat: for the more high and absolute the jurisdiction of the court is, the more just and honourable it ought to be in the proceeding, and to give example of justice to inferiour Courts. But it is demanded, since he [Cromwell] was attainted by Parliament, what should be the reason that our Historians do all agree in this, that he suffered death by a law which he himselfe had made. For answer hereof, I had it of Sir Thomas Gawdye Knight, a grave and reverend Judge of the King’s Bench who lived at that time, that King Henry VIII commanded him to atend the chiefe Justices, and to know whether a man that was forth-comming might be attainted of High Treason by Parliament and never called to his answer. The Judges answered, that it was a dangerous question, and that the High Court of Parliament ought to give examples to inferiour Courts for proceeding according to justice, and no inferiour Court could do the like; and they thought that the High Court of Parliament would never do it. But being by expresse commandement of the King and pressed by the said Earle [Cromwell] to give a direct answer: they said that if he be attainted by Parliament, it could not come in question afterwards, whether he were called or not called to answer. And albeit their opinion was according to law, yet might they have made a better answer, for by the Statutes of Mag. Cart. ca. 29, 5E. 3, cap. 9 et 28E. 3, cap. 5. No man ought to be condemned without answer. . . which they might have certified, but facta tenent multa quae fieri prohibentur; the act of Attainder being passed by Parliament, did bind, as they resolved. The party against whom this was intended was never called in question, but the first man after the said resolution that was so attainted, and never called to answer, was the said Earl of Essex. . . . The rehearsall of the said Attainder can work no prejudice for that I am confidently perswaded that such honourable and worthy members shall be from time to time of both Houses of Parliament, as never any such Attainder where the party is forth comming, shall be had hereafter without hearing of him. (The Fourth Part of the Institutes of the Laws of England, pp. 37–38)
Facta tenent multa, quae fieri prohibentur, says Coke, quoting a current maxim which apparently paraphrases a dictum of Innocent III from the Decretals of Gregory IX, III, 31, 16: “quia multa fieri prohibentur, quae si facta fuerint, obtinent firmitatem.” But if so, in all probability another maxim of the law was no less prominent in his mind: non firmatur tractu temporis, quod de jure ab initio non subsistit: Liber Sextus Decretalium de Bonifacii Papae VIII, V, 12, De Regulis Juris, Regula xviii; or the words of Paulus from which it was derived: Quod initio vitiosum est, non potest tractu temporis convalescere (Dig., 50, 17 [De Diversis Regulis Juris Antiqui] 29). “Many things which have been done are binding although they are forbidden to be done!” Coke as well as the judges to whom he refers, seems, on the whole, to be thinking here of parliament in its judicial rather than its legislative capacity; as the dernier resort, the body from whose decision there is no appeal, even though wrong. Except for his too modern characterization of parliamentary attainder as an act of “legislative power,” the interpretation of this statement of Coke’s by Sir John Hawles, Solicitor General, author of the celebrated Englishman’s Right, in the great case of Sir John Fenwick in 1696, the last English attainder in a capital case, seems to be entirely sound:
The truth is, it hath been the irregular Proceedings in obtaining those Acts have been blamed, and not the making use of the Legislative Power for that purpose; and therefore consider the Acts of Attainder mentioned by the Council, which have been blamed, and first, that of my Lord Cromwel which my Lord Coke blames: One of the Council at the Bar pretended to repeat my Lord Coke’s Words of that Matter at large; but he did not deal so candidly with you in that matter as he ought to have done; for he should have repeated all my Lord Coke says on that Subject, which was, That Cromwel was never brought to answer, never permitted to say any thing for himself, either in Parliament or elsewhere, and for that Reason alone my Lord Coke blames that Precedent. (The Proceedings Against Sir John Fenwick, Bar. upon a Bill of Attainder for High Treason, printed in the year, 1702, p. 207; Howell’s State Trials, XIII, 666, where the statementis somewhat abridged)
From Coke’s own emphasis in his comments it is apparent that he considered a parliamentary attainder as a judgment of the highest of all courts, a judicial procedure warranted by the famous clause of Edward III’s Statute of Treasons, which, after the definition of certain specific acts as treason actionable in the courts below, goes on to provide “That if any other Case supposed Treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to Judgement of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be judged Treason or other Felony” (25 Edw. III, Stat. 5, c. 2, I Statutes of the Realm, p. 320).
Two or three years after the enactment of the statute the parliamentary attainder of Roger Mortimer was annulled en plein Parlement as erroignes & defectives en touz pointz, solely on the ground that le dit Counte estoit mys a la mort & desherite sanz nul Accusement & sanz estre mesne en Juggement ou en Respons (Rot. Parl. 28 Edw. III, no. 11 [vol. II, p. 256]).
In view of such precedents Sir Edward Coke evidently regarded a parliamentary attainder as a procedure at the common law, and for this reason condemned Cromwell’s attainder for lack of “due process,” because the accused was “forthcomming to be heard, and yet never called to answer.” “For that reason alone my Lord Coke blames that precedent.” The validity of a “legislative” act would not be affected whether the accused were “forthcoming” or not, nor by any other defect of “due process.” It was probably for the same general reason that Coke, unlike Wentworth, insisted on going by petition instead of by bill in the Petition of Right in 1628. (See The Petition of Right, by Frances Helen Relf, Minneapolis, 1917, pp. 27–43).
This passage from the Fourth Institute may also serve to make somewhat clearer the meaning of Coke’s well-known and much debated assertion in Dr. Bonham’s case that “in many cases the common law will controul acts of Parliament, and sometimes adjudge them to be utterly void” (8 Reports, 118). It may be worth noting that the Earl of Shaftesbury, a former Lord Chancelor, made a similar statement in 1677: “This Court [The King’s Bench] will, and ought to judge an Act of Parliament null and void if it be against Magna Charta” (W. D. Christie, A Life of Anthony Ashley Cooper, First Earl of Shaftesbury [London, 1871], vol. II, app. VI, p. XCV). Bonham’s case is not an assertion of the supremacy of natural law or of judicial discretion: it is the common law, and it alone, that “will controul acts of parliament.” On the general question whether the above clause of Edward III’s statute was regarded by later English jurists as referring to judicial or to legislative action, see my High Court of Parliament (New Haven, 1910), chap. III, note A (pp. 247–48).
Such a collision of royal will, embodied in Cromwell’s case in an act of parliament, with the prohibitions of the law, in the sixteenth century is reminiscent of similar occurrences in England in the Middle Ages referred to above on pages 75–76, and somewhat analogous to the French lit de justice. The Tudor monarchs were strong enough to prevail in such a contest, and it is not strange that Henry VIII could say, some two years after Cromwell’s attainder, that “we at no time stand so high in our estate royal as in the time of parliament”; but it was not to remain so in the future, and the ultimate outcome of the long struggle was to be a supremacy in parliament of a kind which few or none of the earlier combatants had ever envisaged. Yet it was the Reformation Parliament, impelled by pressure from the King, that brought about the greatest break with medieval ideas of law and government and initiated the intellectual movement which culminated later in the constitutional doctrine of the omnipotence of parliament and the modern theory of legislative sovereignty.
The typeface used for this book is ITC New Baskerville, which was created for the International Typeface Corporation and is based on the types of the English type founder and printer John Baskerville (1706–75). Baskerville is the quintessential transitional face: it retains the bracketed and oblique serifs of old-style faces such as Caslon and Garamond, but in its increased lowercase height, lighter color, and enhanced contrast between thick and thin strokes, it presages modern faces.
The display type is set in Didot.
This book is printed on paper that is acid-free and meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials, z39.48-1992. (archival)
Book design by Richard Hendel, Chapel Hill, North Carolina
Typography by Tseng Information Systems, Durham, North Carolina
Printed by Worzalla Publishing Company, Stevens Point, Wisconsin, and bound by Dekker Bookbinding, Grand Rapids, Michigan