were troublesome precedents. Parliament found it exceedingly difficult to establish limits which could be maintained in practice between the useful on one side and the dangerous on the other. The law courts in this and the next period succeeded not much better in recognizing the king's rights to grant dispensations in the case of a crime created by statute (malum prohibitum) and in cases where he alone would suffer from remission of penalties, and denying it in the case of a crime by divine law (malum in se) and in the cases where others would suffer loss by his act. The right passed on to the sixteenth and seventeenth centuries clearly recognized in principle, gravely questioned by parliament and the courts in some of its application, but with no clear limitations fixed either by law or precedent.

The reaction against the Lancastrian constitutional monarchy began before the end of the fifteenth century. The wars of the Roses, which were at first only a factious rivalry. for influence in the government under a helpless king but which passed soon into a dynastic civil war, were a predisposing influence. The political skill and determined character of Edward IV and Richard III were matched by no leadership in opposition which had any understanding of constitutional principles or any interest in maintaining a limited monarchy. On the other hand the kings themselves seem to have no such foresight of the dangerous situation into which arbitrary kingship had been drifting as we may possibly attribute to Richard II. They were determined to be the most powerful force in the state because of the dangers which threatened them from insurrections rather than because of those which threatened from constitutional progress. They began some of the methods of a practical absolutism which were afterwards carried farther by the Tudors, but with no conscious intention of founding absolute monarchy. They packed the house of commons with their adherents; they kept parliament from meeting during long intervals of time in sharp contrast with the fourteenth century; and they

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provided themselves with an independent revenue at least partially sufficient for their needs by means of forced loans and forced gifts, "benevolences" they called them. But perhaps it was the mere accession of the house of York to the throne, emphasizing the right of strict hereditary succession in the teeth of a statute, which was the most severe blow to parliamentary supremacy struck at the time.

There are certain principles of civil liberty which at the end of the fifteenth century protected the individual from the arbitrary action of the government. They had been established in England in the common law, that is, in private rather than in public law, but in America we have made them parts of the constitution. As a part of his résumé of results already attained, Hallam calls attention to them near the beginning of his Constitutional History of England in these words: "No man could be committed to prison but by a legal warrant specifying his offence and by a usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of gaol-delivery. The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offence was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could be made. Civil rights, so far as they depended on questions of fact, were subject to the same decision. The officers and servants of the crown, violating the personal liberty or other right of the subject, might be sued in an action for damages to be assessed by a jury, or, in some cases, were liable to criminal process nor could they plead any warrant or command in their justification, not even the direct order of the king."

To this may be added, as a general conclusion, the striking summary of Bishop Stubbs of the constitutional situation under the Lancastrian Kings, for what had been then accomplished in the making of the constitution is what becomes permanent and passes on to the Tudor age. The Yorkist kings did indeed establish a practical absolutism but not a

theoretical or institutional one, such as apparently Richard II had tried to set up. They controlled parliament by packing it with their adherents and by their military strength, but they did not attempt themselves to assume the functions of parliament. They raised much money which parliament had not granted but in the form of loans or gifts, not nominally as taxation. They thus laid the foundation not merely of Tudor power but of Tudor practice, the practice of ruling according to the king's will by means of the forms of the constitution and the help of a subservient parliament.

Says Bishop Stubbs: "It is true that neither in the vague promises of Henry IV nor in the definite recommendations of Sir John Fortescue are to be found enunciations of the clear principles or details of the practice of the English constitution. But the constitution did not now require definitions. The discipline of the fourteenth century, culminating in the grand lesson of revolution, had left the nation in no ignorance of its rights and wrongs. The great law of custom written in the hearts and lives and memories of Englishmen, had been so far developed as to include everything material that had been won in the direction of popular liberties and even of parliamentary freedom. The nation knew that the king was not an arbitrary despot, but a sovereign bound by oaths, laws, policies, and necessities, over which they had some control. They knew that he could not break his oath without God's curse; he could not alter the laws or impose a tax without their consent given through their representatives chosen in their county courts. They knew how, when, and where these courts were held, and that the mass of the nation had the right and privilege of attending them; and they were jealously on the watch against royal interference in their elections. And so far there was nothing very complex about constitutional practice: there was little danger of dispute between lords and commons: the privilege of members needed only to be asserted and it was admitted: there was no restriction on the declaration of gravamina, or on the im

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peachment of ministers or others who were suspected of exercising a malign influence on the government. When the king promised to observe their liberties, men in general knew what he meant, and watched how he kept his promise. They saw the ancient abuses disappear; complaints were no more heard of money raised without consent of parliament, or of illegal exaction by means of commissions of array; the abuses of purveyance were mentioned only to be redressed and punished, and if legal decisions were left unexecuted, it was from want of power rather than from want of will."

BIBLIOGRAPHICAL NOTE.-J. F. Baldwin, The King's Council, 1913. A. V. Dicey, The Privy Council, 1860. J. Gairdner, Life and Reign of Richard III, 1898. C. L. Kingsford, Henry V, 1901. C. H. McIlwain, The High Court of Parliament, 1910. L. O. Pike, The Constitutional History of the House of Lords, 1894. T. F. T. Plucknett, The Place of the Council in the Fifteenth Century, Trans. Royal Hist. Soc., Series IV, vol. 1, 157, 1918. A. F. Pollard, The Evolution of Parliament, 1920. L. Riess, Geschichte des Wahlrechts zum Englischen Parlament im Mittelalter, 1885. K. H. Vickers, Humphrey Duke of Gloucester, 1907.

CHAPTER X

THE TUDOR STRONG MONARCHY

The revolution by which Richard III, the last of the Yorkist kings, was overthrown and the house of Tudor established on the throne in the person of Henry VII excited little interest in the nation at large. It was not a constitutional revolution as that of 1399 had been. At the moment no one could tell that it was not another of the many ups and downs of the wars of the Roses, in which also as a whole the nation had not been greatly concerned. The only constitutional principle which it could be cited in the future to support was the right of Parliament to determine the succession in the return to the younger line, which it then decreed at the expense of the elder. But this principle was by no means so clearly asserted as in 1399 and was not strengthened by the later marriage of Henry VII with the heiress of the Yorkist Edward IV. The Tudors came to the throne as the result of no national movement in defence of the constitution and under no implied pledge to respect the powers of parliament.

Nor was the general situation an aid to constitutional government. It was a new and stormy age on which Europe as a whole was then entering, the transition in political history from medieval to modern times. The modern nations had assumed something like their final form. France had acquired, not quite its final eastern boundary, but its general geographical outlines; the great feudal baronies, earlier independent, had been overcome or absorbed; the government of the state had been centralized in the sovereign, not with the perfection of detail to be obtained in the seventeenth