‘As our most dear uncle Edward, Duke of Somerset, by the advice of the Lords, we have named ... to be governor of our person and protector of our realm ... during our minority, hath no such place appropriated and appointed to him in our High Court of Parliament, as is convenient and necessary, as well as in proximity of blood unto us, being our uncle ... as well as for the better maintaining and conducting of our affairs. We have, therefore, as well by the consent of our said uncle, as by the advice of other the Lords and the rest of the Privy Council, willed, ordained, and appointed, that our said uncle shall sit alone, and be placed at all times ... in our said Court of Parliament, upon the bench or stole standing next our seat royal, in our Parliament Chamber.... And further, that he do enjoy all such other privileges, pre-eminences, &c. &c. The statute concerning the placing of the Lords in the Parliament Chamber and other assemblies of council, made in the thirty-first year of our most dear father, of famous memory, King Henry VIII.; notwithstanding.’[9]
[9] Rymer 15.—Collins’ Peerage.
This instrument must, under the circumstances, be taken as the act of Somerset himself; and it is inconceivable that he should have had the audacity to attempt in his own behalf, that for which the plenitude of Henry VIII.’s power had been deemed insufficient, or to have perpetrated in the name of a minor king, a direct and useless violation of a recent statute—more especially when the same object might have been as easily accomplished by the authority of Parliament, where the Protector’s popularity would have ensured a ready compliance with his wishes. This view of the case receives confirmation from the total absence of any allusion to this grant in the charges which were soon afterwards urged against him—everything that malice could devise was raked together for the purpose of swelling the articles of impeachment; but neither when he was degraded from the Protectorate, nor afterwards when he was deprived of life, was any accusation brought against him, tending to show that these letters patent were considered illegal or unconstitutional. Nearly a century later, Lord Coke lays it down that no Act of Parliament can bind the king from any prerogative which is inseparable from his person, ‘but that’ (Mr. Hallam adds) ‘was before he had learned the bolder tone of his declining years.’[10]
[10] Const. Hist. vol. iii. p. 84.
The order of Baronets was a new creation by James I., but his decision of the controversy which arose touching a point of precedency thereupon, shows the prevailing notions of the royal prerogative.
‘The King’s most excellent Majesty, having taken into his royal audience and censure a certain controversy, touching place and precedence, between the younger sons of viscounts and barons, and the baronets, being a degree by His Majesty recently created, which controversy did arise out of some dark words contained in the letters patent of the said baronets. His Majesty well weighing that the letters patent of the Baronets have no special clause or express words to give them the said precedence, and being a witness unto himself, which is a testimony above all exception, that his princely meaning was only to give and advance the new dignity of His Majesty’s creation, but never therewithal tacitly and obscurely to injure a third party.’[11] ... And then he goes on to give precedency to Knights of the Garter, Privy Councillors, Judges, &c.; over the younger sons of Viscounts and Barons, ‘in all places, and upon all occasions, any constitution, order, degree, office, service, place, employment, custom, use, or other thing to the contrary notwithstanding.’ From Henry VIII. to James I. were the high and palmy days of prerogative, when the authority of the Crown was something even more transcendental than that of Parliament itself, and when it was no doubt held that, while the Crown could dispense with the provisions of an Act of Parliament, an Act of Parliament could never bind the prerogative of the Crown; but when Lord Coke began to adopt his ‘bolder tone’ he laid down very different law, and he says expressly, in speaking of the Act of Henry VIII., ‘But Henry, though standing as much upon his prerogative, as any of his progenitors, finding how vexatious it was to himself, and distasteful to his ancient nobility, to have new raised degrees, raised to precedency of them, and finding that this kind of controversy for precedency was of that nature, that it had many partakers, spent long time, and hindered the arduous, urgent, and weighty affairs of the Parliament, was content to bind and limit his prerogative by Act of Parliament, concerning the precedency of his great officers, and his nobility.’[12]
[11] Titles of Honour, p. 119.
[12] 4th Inst. 362.
Whatever may have been the constitutional notions of the sixteenth or the seventeenth century, there can be no doubt that the lawyers of the nineteenth would hold, according to Lord Coke’s latter dictum, that the prerogative of the Crown is limited and restrained by the 31st Henry VIII., and it is only worth while to ascertain what it previously was, in so far as such an enquiry can assist in the solution of the present question; for the same lawyers would probably be unanimous in declaring that, except so far as it was expressly limited and restrained by that statute, the prerogative still remains undiminished and in all its pristine vigour—that Queen Victoria possesses all the power which Henry VIII. enjoyed, saving that of which he was specifically divested by this Act.
The Act ‘for placing the Lords’ restrains the Queen from granting any precedence in Parliament or in the Council, over any of the Royal and official personages and others, who have places assigned to them therein. She may make any man a Privy Councillor, but she cannot authorise him to sit in a higher place than that to which he is by law entitled, or above those whose places are marked out by the statute. If Prince Albert, for example, was to be made a Privy Councillor, not being a peer, he would, of absolute right, be entitled to no place but that of a junior Privy Councillor, or to such as a Knight of the Garter might claim; and all the persons specified in the Act would have an absolute right to take precedence of him in Council. And it is worth while to consider in what a curious predicament he might have been placed, if the Bill for his naturalisation had passed with those amendments as to his precedence which are said to have been contemplated by the Opposition Lords—that is, supposing always the rule of precedence established by law to be carried inflexibly into operation.