Henry's final disposition by will; sixteen executors as a Under the power thus given to the king to make further dispositions by will he simply supplemented the arrangement which parliament had made by the provision that, on the failure of issue of his three children, the crown should pass to the heirs of his younger sister Mary, duchess of Suffolk, to the detriment of the descendants of his elder sister Margaret of Scotland.1 Having thus arranged every detail touching the he named. succession, Henry next named the sixteen executors who were to constitute the council of regency during the minority, a council of council whose members were drawn in such equal proportions from the ranks of conservatives and reformers as to warrant the hope that the influence of the one would stand as a check upon that of the other. How ineffectual such an arrangement was to prove in practice was quickly demonstrated the moment that the long truce, which only the king's irresistible personal died Janu- force had made possible, was broken by his death, which occurred on the 28th of January, regency; ary 28, 1547. 1 Fadera, vol. xv. pp. 114-117. As to the vexed questions involved in the alterations of the will and in its valid execution, see Lingard, vol. v. p. 212 et seq., and notes; Hallam, Const. Hist., 1547. vol. i. p. 289 et seq.; Blount, Reform. of the Church of Eng., vol. ii. p. 6; Bailey, Succession to Eng. Crown, pp. 156–164. CHAPTER III. EDWARD VI. AND THE ENGLISH REFORMATION. regencies to I. THE Council of regency constituted by the last will of History of Henry VIII. was not so much the creation of that instrument from Henry as of the act of parliament under whose authority the will was Edward drawn. While the assembly of estates was settling the prin- VI.: ciple that the new feudal theory of hereditary right was subject to its omnipotent power to suspend that rule of succession at will, it was also careful to assert its power to provide for the administration of the royal office during the absence of an adult king, or for a regency in the event of infancy or mental incapacity. During the Norman reigns, as heretofore pointed Adminisout, the royal authority, during the temporary absence of the royal auking from the realm, devolved officially upon the justiciar as during viceroy, or, as he was afterwards called, "secundus a rege.' After the justiciar ceased to be viceroy and became the mere incapacity head of a law court, it became the rule to vest the royal authority during the king's absence in such a council (custodes regni) as was appointed by Henry III. in the year prior to his death, and which governed until the return of Edward I., nearly two years after that event.3 tration of thority "' 1 absence, infancy, or of the king; gency after stituted at sion of The first regency, properly so called, which occurred after first rethe Conquest, grew out of the accession of Henry III. just the Conafter the completion of his tenth year. How at that time the quest conroyal authority was vested in the earl-marshal, the elected the acces representative of the baronage, who carried on the government Henry III. under the title of rector regis et regni, has been explained already. Such action upon the part of the baronage was made necessary by the fact that the common law neither con 1 See vol. i. p. 244. 2 Vol. i. p. 398. 3 Seventh Rept. of Dep. Keeper of the Public Records, App. II. p. 259; Stubbs, Const. Hist., vol. ii. pp. 103, 104. See also vol. i. of this work, p. 405. After the death of Mary in 1695, a like ar rangement was made for carrying on 4 Vol. i. p. 394. regency at the Edward III.; templated nor provided for a minority, a circumstance which no doubt arose out of the fact that under the ancient elective system the king was supposed to be adult and personally competent to govern.1 After the deposition of Edward II.2 and the election of his accession of son, then in his fourteenth year, parliament was a second time called upon to constitute a regency, a duty which it discharged by the appointment of a standing council of four bishops, four earls, and six barons, who, under the lead of the earl of Lancaster, the king's cousin, were to advise in all matters of government.3 proceed ings at the Richard under the doctrine of repre sentation; Although Richard II. at the time of his accession was only accession of eleven years old, no personal regent was appointed. The day after his grandfather's death, the first king to succeed under II., the first to succeed the new doctrine of representation took the great seal from the hands of its keeper and passed it over to his uncle the duke of Lancaster, who, four days later, passed it to the bishop of St. David's, who, by virtue of its possession, under the subtile legal theory then in vogue, was able to legalize all acts of government. The lords then limited this arrangement by the appointment of a council of twelve, without whose concurrence nothing was to be carried into effect, and whose constitution was from time to time modified by parliament, which is said to have itself acted as "a great council of regency" during the earlier years of Richard's reign. Regencies during the reign of We have seen already how parliament, at the accession of Henry VI., dealt with the fourth minority since the Conquest Henry VI.; by ignoring the directions of the dead king, and by setting up in their stead an arrangement of its own under which the duke of Bedford (and in his absence the duke of Gloucester) became protector and defender of the realm with the aid of a council. of sixteen, afterwards constituted to aid him in carrying on the government.5 The prolonged absence of Bedford on the 8 Rot. Parl., ii. 52; Knyghton, col. 1 Coke tells us that in contempla- 2 As to the deposition of Edward, tion of law the king cannot be a mi- the first since the Conquest, see vol. i. nor, "for when the royall bodie poli- p. 505. tique of the king doth meete with the naturall capacity in one person, the whole bodie shall haue the qualitie of the royall politique, which is the greater and more worthy, and wherein is no minoritie."-- Co. Litt., 43. 2556. dle Rot. Parl., iii. 386; Hallam, Mid- 6 Vol. i. p. 553. of the regencies sized; continent cast the protectorate upon Gloucester, who, when in the sixth year of the reign he called upon the lords to define his powers as protector and defender of the realm, was told in a written answer from them that he had no right to his office either by reason of his kinship, or by reason of the late king's will; that "the king that dead is, in his life nor might by his last will nor otherwise alter, change, nor abrogate, without the sole power assent of the three estates, nor commut nor grant to any per- estates to son governance or rule of this land longer than he lived." He create was then told why the title of protector and defender had emphabeen given him, "granting you therewith certain power, the which is specified and contained in an act of the said parliament, it to endure as long as it liked the king." As the infancy and imbecility of Henry VI. really rendered his reign a continual minority, its history is made up of a series of struggles between the leading statesmen of the time for control as protector.2 In the course of the long struggle the duke of York was in 1454 elected by the lords protector and defender of the realm during the king's pleasure; and after the abrupt termination of his first protectorate by the king's recovery, he growing was again elected protector in 1455 by the lords, but at the of the earnest solicitation of the commons, who seem to have exer- commons. cised a controlling influence upon the proceeding. The duke was chosen the second time to hold the protectorate, not as at first "during the king's pleasure," but "until he should be discharged of it by the lords in parliament." 8 influence the acces V.; ples of con The brief and tragic reign of the infant king Edward V. Regency at opens with a struggle for the regency between the queen sion of mother and the duke of Gloucester, who, in May, 1483, was Edward declared "protector of king and kingdom" by an irregular assembly of magnates and citizens. By this time the following four principrinciples of constitutional law seem to have been distinctly stitutional recognized: (1) That to parliament as a whole belonged the law now exclusive right to constitute a regency, wherever the king from recognized; infancy or mental incapacity was personally incapable of performing his functions; (2) that the king did not possess the power to constitute, "by his last will nor otherwise," a regency during the minority of his successor, "without the assent of 1 Rot. Parl., iv. 326. 8 Rot. Parl., v. 284-290. distinctly provisions made by Henry regency VI.; of the act of 28 Hen. VIII. c. 7; council of the three estates;" (3) that neither the heir presumptive nor any other member of the royal house had the right as such to claim the regency, although they were often chosen by reason of their nearness in blood; (4) that when a regency was to be constituted, it was usual for parliament to vest the royal power either in some magnate individually, as guardian or protector, acting with the advice of a council; or in a council of regency without a dominant head. Such were the principles that stood forth as guides and as warnings to Henry VIII., when the time came for him to proVIII. for a vide for a regency during the stormy period occupied by the during minority of Edward VI. Clearly understanding that no such minority of Edward attempt could be made with any hope of success without the aid of parliament, it was provided in his second succession provisions act 1 (28 Hen. VIII. c. 7), passed just after his marriage with Jane Seymour, that the heir to the throne if a male and under eighteen, or if a female and under sixteen, should be, if the king approved, until such ages respectively, under the government of his or her mother, and of such other councillors as the king might appoint by letters patent or by his last will. Under the authority of that act it was that Henry provided in his will for a council of regency consisting of the sixteen executors, to whom were committed the government of the realm and the control of Edward's person during the minority, subject to the further provision that the sixteen should consult and advise with another council of twelve, who were also named. It was further provided by statute (28 Hen. VIII. c. 17) that any inHen. VIII. fant coming to the throne should have the power, upon attaining his or her majority, to repeal by letters patent all measures enacted in his or her name during minority. From the terms of that act, coupled with the fact that Henry attempted to select the executors as equally as possible from the ranks of conservatives and reformers, so that neither faction should predominate, it is plain that his purpose was to preserve the results of his work intact, at least until Edward should attain his majority. And yet despite such precautions the whole regency appointed by will under authority of the act; act of 28 C. 17; 1 See above, p. 84. 2 More than two centuries then elapsed before the act of Henry VIII., passed in 1536, was followed by the Regency Act of 24 Geo. II. c. 24, passed in 1751. 8 As to the persons named, see Froude, Hist. Eng., vol. iv. pp. 234, 235. 3 |