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Prerogative v Parliament in Henry VII’s Reign

A Reminder from Early Tudor England of the Importance of Parliamentary Rule

Henry VII’s reign shows how ignoring Parliament and side-lining an independent judiciary built the kind of resentment that almost lead to civil war.

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Michael von Sittow’s portrait of Henry VII (NPG) author’s photo.

The recent judgement by the High Court that Parliament must have a say in Britain’s process to exit the European Union is a timely reminder of how constitutional government has developed in this country. This week’s Supreme Court’s hearing of the government’s appeal against that verdict will indicate just how our modern democratic system balances prerogative and representative power.

The UK is heading for Brexit. What is unclear is the process and the deal that waits at the end of negotiations. Without transparency there is limited accountability and the journey towards Brexit becomes a closed activity. The nation is required to trust that a handful of negotiators will get it right for the rest of us. Devolving authority to a small section of government that acts to change British statutory law outside of the accountable parliamentary processes throws up parallels with the past.

As the UK has no written constitution, proper functioning of the structures of state within the polity therefore relies upon the statutes, precedents and customs that stem from the interaction of the Crown and Parliament. This relationship is underpinned and policed by the functioning of the system of Common Law. The institutional knowledge of how this legal framework serves the nation rests with the judiciary, but it is also accountable through the jury system and the concept of representation within the law. It is, above all, a balanced system. To dismiss the expertise, training and impartiality of the judges begins to tug at one of the main pillars of our modern democracy and disregards centuries of struggle to achieve the equilibrium of rights and responsibilities that citizens now enjoy.

The sovereignty of Parliament as representative of the will of the people has been established and evolving since the thirteenth century. It is precisely because Parliament’s role has been challenged and tested over the centuries in usurpations, national crises, impeachments, civil wars and trials that the UK’s modern parliamentary democracy functions so effectively without a written constitutional code.

It could be argued that the referendum, as a direct appeal to the citizenship, offers the purest form of consent. That is true as an initial indication of the nation’s will, but bringing into effect the complex governmental consequences of that vote relies upon mechanisms already in place – the normal functions of transparent and accountable government. In bringing Brexit about, we should be extra-vigilant in our scrutiny of how government works.

The vote in favour of Brexit is not the same thing as blanket authority for the government to create all of the policies and mechanisms necessary to put that instruction into effect. Parliament and the institutions of the law already offer a sophisticated system of checks and balances on how government operates. Involving parliament does not deny the will of the people. On the contrary, it follows exactly the traditional route that medieval English politicians, lawyers and theorists envisaged when they created institutions and functions that prevented monarchs from ruling like tyrants.

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The modern Prime Minister and cabinet have inherited the personal decision-making power shared by the monarch and the royal council that was, in combination, the nation’s main executive agency for hundreds of years. This prerogative authority has always been a difficult thing to balance against the idea of parliamentary sovereignty.

Prerogative authority represented the private leadership role of the ruler. But history shows that tensions soon mount within the polity when prerogative power is exercised without the support of parliament. In the past, controversial decisions reached without even the appearance of broad consent have set the nation on a course that heightened mistrust and division. Rule by unaccountable cliques operating under the cloak of formal government also increased the risks of social and political convulsion.

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Tudorbadges and imagery on the King’s Bench Plea Roll for 1505 (author’s photo)

A particular pinch-point occurred just over five hundred years ago. By 1508, towards the end of Henry VII’s reign, England was close to civil war. A regime unsure of the depth of its authority relied heavily upon entrenched executive power rather than a broader consensual interaction with Parliament or broad advice through the royal council. King Henry ruled through a small group of hand-picked councillors, powerful committees and a close personal control of ruling institutions. All of these officials were accountable to him directly and not to the nation in Parliament. Through the attendance of MPs from towns and cities, Parliament was, by that date, acknowledged as a forum that represented the entire population. It was, nevertheless, a place in which to counterbalance the king’s personal demands against wider interests of state.

Often these two things were harmonious, as when wars of national defence required united action. But when they fell out of kilter, the quality of the monarch’s leadership was often challenged. Questioning the way that 14th and 15th century kings ruled soon led to investigation of their right to wear the crown; and there was no shortage of rival candidates sharing royal blood following Edward III’s death in 1377. All monarchs reigning after Richard II found that their status and security were often pressurised by conspiracy and sometimes by open rebellion.

Factional kings like Henry IV, Edward IV, Richard III and Henry VII felt this burden even more. They had achieved power by vanquishing opponents, representing themselves as saviours of the nation, and subduing a proportion of the ruling elite in the process. As they worked to build bridges with those they had displaced, the prerogative power of the Crown became a key prop of their authority.

Against the century-long background of struggle for the crown, in 1485 Henry VII was a usurper with a slim hereditary right and little experience of statesmanship. A reliance on the institutional and prerogative power of the Crown compensated for his initial unfamiliarity with what rulers were expected to do. He had experienced advisers around him, but over-reliance on their counsel only emphasised the influence of a narrow group within the ruling elite. When repeated conspiracies and the deaths of allies prevented Henry from moving the essence of his kingship beyond fire-fighting, however, this dependency upon semi-feudal prerogative power became disproportionate and dangerous.

During the last five years of his reign, between April 1504 and his death in April 1509, King Henry felt no need to call Parliament to validate his ruling decisions. His expanding income came from sources under his control; chiefly the crown’s lands, customs and manipulation of the prerogative power in his hands. People with a formal semi-feudal relationship with the Crown were obliged to make inflated payments for restoration of land; for grants of offices, pardons and licences; and even for permission to marry or to retain custody of their own underage children. His Council Learned in the Law managed these decisions. The common law judges were not members of that committee, but the king’s personal lawyers were. Henry also gave unparalleled influence over the course of government policy to professional administrators like Edmund Dudley and Sir Richard Empson. They directed the activities of the Council Learned and they were highly successful in doing so.

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Empson and Dudley with Henry VII (public domain, Tudor Place)

 

Many noblemen, church leaders and members of the mercantile middle classes courted the favour of Empson, Dudley and other of the king’s ‘new men’, while at the same time hating the dominance they enjoyed and the demands they made in the king’s name. The squeeze on noble power was made in an effort to control the resources of the elite – a recognition that the Crown could not govern effectively without the aristocrats and urban leaders who mediated the king’s policies within the localities. Parliament was one of the main ways that they expressed the nation’s view and fed-back to the Crown through direct commentary, the opinions and concerns of the lower ranks of the tenants, servants and other people in their own counties.

The king seemed to have turned his back on this group of representatives of the national interest. Judging by the outpouring of relief upon Henry VII’s death, his policies were beginning to cause some of them to re-think their allegiance to a ruling family that had itself seized the throne through force. If Henry VII was believed to have wanted to rule without consulting them or involving them in building policies based on consensus and traditional forms of interaction, then many turned their thoughts towards finding a monarch who could return the nation to a form of government based on the partnership of Crown, council and Parliament.

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TNA DL 5/4, fol 54r The Council Learned’s minute book, 1505

After Henry VII’s death, Empson and Dudley were deserted by those among the ruling elites who had found their financial resources entwined in a mesh of bonds, obligations and inflated fines; all orchestrated by these key royal advisors working beyond the traditional structures of accountability. Henry VII’s old councillors were so concerned that these men were planning a coup against the seventeen-year-old Prince Henry that they disguised news of Henry VII’s final illness and death so that measures could be taken to ensure a smooth succession of the crown. Empson and Dudley were executed in 1510 as scapegoats for Henry VII’s divisive policies. They had risen so quickly to positions of real power that such extreme measures were needed to remove their influence from around the new king.

Henry VII’s reign was a troubled period in the English history. His accession in 1485 as a conqueror with a narrow base of support left him nervous of the nature of his opponents and the changing form of the hostility he faced. The first Tudor king perhaps never felt confident in relaxing into the established forms of late medieval kingship. His decision to rule without Parliament was based upon his very real fear of deposition. In 1504, he hoped to reign on tight terms until twelve-year-old Prince Henry became old enough to take the throne as an adult. Such an obsessive focus began to distort the objectives of government institutions. The grumbling and discontent of individuals also had more chance of becoming unified as an opposition movement had Henry VII’s kingship persisted.

In attempting to reign without a parliamentary partnership, Henry VII was heading down the route of despotic tyranny. Even at the start of the sixteenth century, that was really worrying to the lords and commons used to working within the parliamentary framework. When the government ceased to involve the nation’s representative structures in managing the country’s big decisions, the king’s subjects -especially the elites who were the Crown’s natural group of advisors- felt increasingly excluded and vulnerable to the king’s individual whims. The leader’s personal power and the Crown’s institutional authority began to merge. This distilled form of executive leadership was also controlled by a tiny group of officials and advisers. They acted without challenge by the established routes of representation and advice.

The final years of Henry VII’s reign offer us a small reminder of the dangers inherent in investing power in the hands of a small group. Empson and Dudley might have claimed to be acting for a young king in the interests of the nation, but without Parliament and other checks on their activity, they began to move beyond the remit they had been given. Old sins cast long shadows, and sometimes it is valuable to pause and remember how and why our parliamentary system has developed into its current form.