The King could create a peer, and give him precedence over all other peers of the same rank,[4] a prerogative which was not unfrequently exercised in ancient times. Henry VI. created Henry Beauchamp Earl of Warwick and Præcomes totius Angliæ, and afterwards Duke of Warwick, with a right to sit in Parliament after the Duke of Norfolk, but before the Duke of Buckingham; the same King created Edmund of Hadham Earl of Richmond, and gave him precedence over all other earls, and Jasper of Hatfield Earl of Pembroke with precedence next to the said Earl of Richmond.[5] There appears to have been no limit to the authority of the Crown in granting honours, titles, dignities, and offices, excepting only that it could not grant new offices with fees annexed, because that would be a tax upon the subject, which can only be imposed by Act of Parliament. Assuming, then, that such was the extent of the prerogative previously to the 31st of Henry VIII., the next question is, Whether it was restrained by that statute; and if it was, within what limits it was thenceforward confined? The preamble asserts the prerogative of the Crown in the strongest terms; probably for the express purpose of guarding against any inference that it was thereby abridged or restrained. It is difficult to believe that, in passing the Act entitled ‘for placing the Lords,’ Henry VIII. felt any doubt as to the possession, or scruple as to the exercise, of the prerogative of his progenitors, and still less that he had the remotest idea of divesting himself of an iota of his own. The despotic temper of the King, the subservient character of his Parliaments, and his habitual employment of them as the most obsequious instrument of his will, make it probable that he adopted this, merely as the easiest and most convenient mode of settling a difficult and complex question, but without the slightest misgiving as to his own power, or any notion of restraining himself from granting any privilege or precedence it might at any subsequent period be his pleasure to bestow. The circumstances under which the provisions of this Act were carried into operation were remarkable, and give it much more the appearance of a decree of the King, or a resolution of the Lords, than of an Act of the Three Estates. The assent of the Commons seems to have been assumed as a matter of course, and as soon as it had passed the Lords (which it did very hastily), it was immediately put in force, ‘Concerning the passing it, it is observable, that on Monday, 1st May, the Lord Chancellor quandam introduxit billam concernentem assignationem locorum, &c., which was that day read twice; the next day it had a third reading, and on Friday a fourth; on the morrow, the Lord Cromwell is placed before the Archbishop of Canterbury, and the others are placed according to the Act, being before placed without regard to their offices, but it was not returned from the House of Commons with their assent till the Monday following.’[6]
[4] Ibid.
[5] 4th Inst 361.
[6] Selden, Titles of Honour, p. 117.
The preamble of the Act is in the following terms:—
‘For in as much as in all great councils, or congregations of men, having sundry degrees and offices in the commonwealth, it is very requisite and convenient that an order should be had and taken for the sitting of such persons, that they knowing their places may use the same without displeasure, or let of the council, therefore the King’s Most Royal Majesty, tho’ it appertaineth unto his prerogative Royal, to give such honour, reputation, and placing to his counsellors, and other his subjects as shall be seeming to his most excellent wisdom, is, nevertheless, pleased and contented for an order to be had and taken in this his Most High Court of Parliament, that it shall be enacted by the authority of the same, in manner and form as hereafter followeth:—’
Then come nine sections settling the places in which the Royal Family, great officers of state, and others, are to sit in the Parliament Chamber, and the tenth section enacts that, ‘as well in all Parliaments as in the Star Chamber, and in all other assemblies and conferences of council, the Chancellor, Lord President, Privy Seal (that is the Chancellor, President, and Privy Seal, above all dukes, not being the king’s sons, &c., and the Great Chamberlain, Marshal, Lord Steward, Chamberlain, and Chief Secretary, being a Baron above all others of the same degree), shall sit and be placed in such order and fashion as is above rehearsed, and not in other place by authority of this present Act.’
There exists what may be deemed very fair evidence to show that in those days the Royal prerogative as to precedence was never supposed to be abridged by this Act, but on the contrary that it still continued to flourish in undiminished force. Only two months afterwards Henry was divorced from Anne of Cleves, when, as is well known, he bribed her into compliance with his wishes by a liberal grant of money and of honours. By his letters patent he declared her his adopted sister, and gave her precedence before all the ladies in England, next his queen and daughters, and therefore before his nieces[7] and their children, who were directly in the succession to the crown.[8] On the 3rd November, 1547, Edward VI. granted to his uncle, the Duke of Somerset, immediately after his victory in Scotland, letters patent of precedence, in the following terms:—
[7] The Duchess of Suffolk, and the Countess of Cumberland, daughter of Charles Brandon and Mary, Queen Dowager of France.
[8] Burnet, Hist. Ref. vol. i. p. 565.