CHAPTER IX

PREMATURE CONSTITUTIONAL GOVERNMENT

Henry of Bolingbroke, in leading the revolution which overthrew Richard II, probably had little personal interest in the constitutional aspect of the crisis. His was naturally a personal interest to secure the Lancastrian inheritance, which the king had seized, and the ambitious prospect which the opportunity offered. But he was interested to make full use of the advantage which the opposition to Richard's tyranny had created and without it he could not have succeeded. That opposition, though very likely to a great extent a factional baronial opposition, little more farsighted than the opposition which at various times in the thirteenth century had wrested concessions from the king, gives, as in the earlier cases, a clearly constitutional character to the revolution of 1399. In forming an estimate of the revolution, we must also take into the account the progress made by the house of commons under Edward III for, though the commons do not play a leading rôle in the overthrow of Richard, the total absence of any support for the king is significant. As an objective historical fact, as truly as in the later revolution of 1688, the action of the nation saved the constitution from the destruction threatened by the policy of the king. It cannot be asserted that in 1399 the nation understood either the constitution or the danger as clearly as in 1688, but it is asserted that both existed as truly in the earlier as in the later case and that both were at the time to some extent consciously perceived. As to the constitution, all the main lines of it as it exists today had been laid down in principle by 1399. Hardly anything had

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yet been done in applying its principles to the details of goverment. The fifteenth century was to be the first age in the process of making such application; but the principles existed. Many facts make it evident to us that what we may possibly begin to call the public opinion of the nation was coming to understand something of the character of constitutional law and of the importance of doing things even in a revolutionary time as nearly as could be according to precedent and established forms, that it was beginning to appreciate the position which parliament had secured in the conduct of government, the position to which the king had been reduced and the practical difference which would be made if the king should succeed in throwing off the restrictions which had been put upon him. If, however, one considers not how complete the national understanding was in 1399, but the historically more important question what was really at stake in that crisis, as we can see it from our knowledge of the later history, the accuracy of the parallel with 1688 is clearly established. It was also undoubtedly its constitutional character which gave the revolution its speedy success.

It was in this respect also complete. The house of Lancaster came to the throne dependent upon the support of the nation for the possession of a crown won by revolution, logically pledged to recognize the rights which parliament had secured during the fourteenth century and to allow the full exercise of the powers which Richard had attacked. The new king was pledged also to the same policy by the force of circumstances, for Henry IV, the product of the revolution, himself in constant danger of counter revolutions, was too dependent upon such support as he could win to adopt a policy of aggression in any direction, or to antagonize so strong an institution as parliament had become. His reign seems a very mediocre one, despite Henry's undoubted abilities, because he found himself obliged in everything to take a moderate and middle course. His son and successor,

Henry V, the Prince Hal of Shakespeare, felt himself strong enough to renew the war with France and made himself a great name by the victories he won, but his long campaigns kept him away from England and left the government there necessarily in other hands. His premature death brought his son, Henry VI, to the throne while a babe in arms, and a long minority and, after he came of age, the king's mental and physical weakness, tended still to maintain parliament's general control.

For this long period of sixty years parliament's authority was unquestioned, nor did the Lancastrian kings show at any time a disposition to question it. Their natural inclination seemed to be, so far as we can judge it, to rule in harmony with parliament. It was a period of unbroken constitutional government. Startlingly and prematurely modern, I have called it in another place, and though the machinery of constitutional government had as yet been worked out in few details, it was in spirit modern. Parliament seemed aware of the security of its position and busied itself on one hand with perfecting details and on the other with strengthening its control. It used the king's council as its own instrument, and, most remarkable of all, we seem to be able to detect the faint beginnings, amid somewhat similar conditions, of that change in the relations between council and parliament out of which, in more modern times, the English cabinet system grew. But even parliamentary control of the council, through which the daily government of the country was carried on, could not prevent the rise of those factious rivalries among the great men of the day which led in another generation directly into the civil wars of the Roses.

It was indeed a period prematurely modern. It was constitutional not because the constitution was solidly founded and firmly fixed and fortified in possession of the government, not because the constitutional way seemed the only natural way of doing things, but rather because of circum

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stances somewhat temporary in character: the insecurity of the king, his absence, his infancy, or his personal weakness, left parliament really alone the strongest factor in the government. It was the best result of such a period that constitutional government grew to seem more normal. The habits of thought and action then formed were more important than the precedents established, and one great reason why the constitution survived the next age was that in this one it had become more firmly a part of the national life.

What conclusion the best thought of the time had reached about the place of the king in the government may be indicated in the words of a contemporary student of the English constitution, which are "so explicit and weighty that no writer on the English constitution can be excused from inserting" them, as Hallam says, in the third part of his chapter on the English constitution in his Europe during the Middle Ages. Sir John Fortescue, who had been chief justice of England, had had his training and almost all his active life in the Lancastrian age. In his book In Praise of the Laws of England, written early in the reign of Edward IV, he said of the king: "He can neither make any alteration or change in the laws of the realm without the consent of his subjects, nor burden them against their wills with strange impositions." And again: "As the head of the body natural cannot change its nerves and sinews, cannot deny to the several parts their proper energy, their due proportion and aliment of blood, neither can a king who is the head of the body politic, change the laws thereof, nor take away from the people what is theirs by right, against their consent. Thus you have the formal institution of every political kingdom, from whence you may guess at the power which a king may exercise with respect to the laws and the subject. For he is appointed to protect his subjects in their lives, properties and laws; for this very end and purpose he has the delegation of power from the people and he has no just claim to any other power but this." These

may be the words of a philosophical student of government, but there can be no doubt that in essence Fortescue was right. At that date the principle had been in reality established that the royal power was a delegation from the people, although it was to be two hundred years longer before that principle could be fully carried out in the practical government of the country.

One new parliamentary right which the revolution of 1399 went a long way towards establishing should not be passed over the right of determining the succession to the crown. By this is not meant the larger and more important right of deposing a king who could not otherwise be controlled. The right of deposition had been made in a sense constitutional by Magna Carta, as the foundation upon which rested the smaller and included right of temporary suspension asserted in chapter 61. That right of temporary suspension for bad conduct had been exercised by the great council in 1258 and again in 1310, and the more complete right of deposition had been exercised against Edward II in 1328. But more than this was done in 1399. Parliament assumed the right to pass over the line marked out for succession by the principle of primogeniture, lately established in English law, the principle of strict hereditary succession by blood, and to place upon the throne the younger line, the house of Lancaster.

Henry IV was the son of John of Gaunt, Duke of Lancaster, the third son of Edward III. The elder line was represented at his accession by Edmund Mortimer, Earl of March, grandson through his mother of Edward's second son, a child of eight years of age. Late in the reign of Henry V, this title to the throne passed to the house of York through a sister of the earl of March. There is plenty of evidence to show that the men of the time were quite aware that in making Henry king they were passing over the direct line according to the principles of succession by that time established in English law. There is