Queen’s Consent and the Missing Link

Very occasionally, when political trouble draws up from the depths some of the most obscure arcana of the British constitution, you may hear about Queen’s Consent. It’s one of the most recherche little pieces of parliamentary flummery. Bills which have a direct impact on the remaining prerogative powers or the private interests of the sovereign are submitted during their passage through parliament for the sovereign’s formal consent. Without it, they will not be allowed to proceed further. It is, crucially, to be distinguished from the Royal Assent to bills, the last stage in legislative procedure and an entirely more significant process. Royal Assent offers the theoretical possibility of a royal veto on bills that have been passed by both houses, although the veto – which has not been used since 1708 – is regarded as effectively defunct. It is suggested from time to time that Queen’s Consent might be used to prevent progress on a bill that the government finds inconvenient, but can’t stop: but it is even harder to find anyone who thinks this than it is to find believers in the Royal Assent veto. (The contemporary meaning of Queen’s Consent, and some of the recent issues surrounding it and the Royal Assent, are explained much better in Paul Evans’s recent Constitution Unit blog ) Queen’s consent, these days is no more than a quaint bit of courtesy left over from…

Left over from when? No-one really knows where it comes from. In evidence given to an inquiry by the House of Commons Political and Constitutional Reform Committee the clerks of both houses exhumed the first record in the journals of either house to (then) king’s consent being given to a public bill: it is no earlier than 1729, in a bill ‘for the better suppressing of piracy, and for giving all prizes, taken from the enemy, to the captors’. The chancellor of the exchequer (Robert Walpole), ‘by his majesty’s command, acquainted the house that, for the greater encouragement of seamen to behave themselves with bravery and fidelity in the service of their country, his majesty gives his consent, that a bill may be brought into this house, for giving to the captors the share or part, which the crown has in all prizes, taken from the enemy’ (CJ, 27 Feb. 1728 [i.e. 1729]). Since the consequent bill was ordered to be brought in by Lord Malpas, a lord of the admiralty and Walpole’s son-in-law, and by Walpole himself, this is evidently a government initiative. As it happens, there is another example exactly a year later (CJ 27 Feb. 1729 [i.e. 1730]) after a petition is read concerning the running of the Fleet prison and the proposition that its warden should hold only during good behaviour and be removable upon the address of either house of parliament; it is again Walpole delivers the king’s consent that the House ‘may do therein, as they think fit’.

The 1729 bill may be the first time the sovereign’s consent is recorded in this way in the commons, but it would be very surprising if it marked a moment of significant change in fundamental understandings of how the prerogative was handled in parliament. The 1720s was hardly a moment of great constitutional creativity, and the prerogative such a sensitive subject that any change was likely to have left rather more trace than this casual record in the Journal.

Sign Manual Bills and Grace Bills

Queen’s consent must have some connection with the well-known, much argued-over, but still very obscure practice of what have been called ‘sign manual bills’ and ‘grace bills’ – phrases that are sometimes, though misleadingly, taken to refer to the same thing. Sign manual bills refers to a series of acts still preserved in the Parliamentary Archives which have the king’s or queen’s signature or initials (his or her sign manual) written at the top left of the parchment. Sometimes the signatures of the crown’s legal counsel are also on the bill, at the bottom right. What exactly all this means is still not really understood, though an article by Michael Graves and Chris Kyle has shed plenty of light on the issue, but ends up by inviting more questions. It doesn’t mean royal assent, since not since the reign of Henry VII have all acts been signed by the monarch. The run of acts in the Archives begins in 1497, about half way through the reign of Henry VII. All of Henry VII’s acts bear the sign manual. Almost all of those from the first three parliaments of Henry VIII (1510-1515) do as well. But in the 1530s only just over a third of acts have the king’s signature; by the last few parliaments of Elizabeth I (1584-1601) the proportion bearing her signature is down to a mere 5 per cent, and the practice of endorsement almost disappears in the reigns of James I and Charles I – just two out of 387 acts passed in the period bear the sign manual, both of them general pardons. Unfortunately no-one has gone through the acts of Charles II onwards to see whether this decline continues or not after the 1640-60 Revolution (and now, in the middle of a pandemic is not the time to try to do it), but it seems likely that it does.

Why are some bills signed by the king or queen, and why does the practice effectively die out before 1640? When, from the 1530s, only some of the acts are signed, we can try to puzzle out why these are distinguished from the rest. Graves and Kyle suggested that they fall into two categories. One is of bills, both public and private, where the royal interest, the royal prerogative or the royal estate, was involved; these bills indicate the sovereign’s permission for parliament to proceed. The other is of bills which are private requests or petitions; the signature on these indicates the monarch’s support and recommendation. But these distinctions are difficult to draw in precise terms. The latter includes the ‘general pardon’, a routine bill passed in most parliaments as a sort of quid pro quo for a money grant. They also include bills of restitution (restoring to his or her heirs the rights and properties of a person who had been condemned for treason) and pardon. The former could include numerous bills related to royal administration, such as statutes concerning the royal household, or Dover castle, or the court of augmentations and general surveyors of crown lands. During the reign of Elizabeth I the former category almost dried up completely. Most bills endorsed by the queen were bills of restitution, naturalization, a couple of family estate bills, and the act of general pardon: none of them were of ‘national scope and importance’. As Graves and Kyle point out, the first and most influential descriptions of parliamentary procedure were written in this period, and therefore tend to assume that sign manual bills were necessarily of this sort – that they were all grace bills; they also assume that they were by convention not subject to amendment during their passage through parliament, though this was quite inaccurate as well. There was in fact a row in 1576 over a bill to restore the rights of Lord Stourton, whose father had been executed in 1557 for arranging for the murder of two of his neighbours. The bill came from the Lords with the sign manual; the commons wanted to add a proviso, but the Lords, gingered up by Stourton, told them they had no right to do so. The Lords in the end were forced to back down. Under James I and Charles I the only bills to be endorsed by the king were the Acts of general pardon passed in 1605-6 and 1624: naturalization bills and bills of restitution were passed, but none of them were endorsed. The act of general pardon passed in 1610 was not signed; and the other bills of general pardon introduced during the two reigns were victims of the bad-tempered ending of their respective parliaments.

Chris Kyle has pointed to a series of bills originally introduced in 1614 which were offered by James I as a series of concessions in exchange for a money grant. These were useful, but undramatic reforms of legal procedure, some of them limiting prerogative rights and powers in certain respects (for example a bill that limited the crown’s ability to claim any right in land if it had not received income from it for sixty years). None of them passed in what was to be a parliament barren of any legislation – the ‘Addled Parliament’. They were offered again in the next parliament, of 1621, and subsequently, and eventually some of them reached the statute book. These bills were explicitly referred to as grace bills throughout their passage through the commons, were known to have been offered by the king, but had no endorsement by him. (An example may be found here )

The Missing Link?

It would appear that sign manual bills were on their way out. There were further acts of general pardon, in 1660, 1672, 1689 and 1694 and these (given the pre-civil war precedents) may conceivably have been signed. Short of a survey of the post-Restoration acts in the parliamentary archives one cannot know. But then we have, in the Lords Journal on 6 May 1702 this entry, recording the Lord Privy Seal’s announcement (by the command of Queen Anne) concerning two bills brought into the lords from house of commons, concerning the estates and families of men (the 8th earl of Clanricarde and his son Lord Bophin and the third earl of Carlingford) who had been outlawed and attainted for treason in the reign of William III and Mary II because of their service in the armies of James II. The bills had the effect of removing the outlawries and reversing the attainders. It was, the lord privy seal said, the queen’s prerogative to reverse attainders of high treason, and this was usually done formally by means of a bill introduced into the Lords with her recommendation. As a statement placed in the House of Lords journal the following day, ‘Bills of this Nature ought to be recommended to this House, and signed by Her Majesty, and begun here’. The lord privy seal conveyed the queen’s gracious agreement that the bills should proceed, and the House agreed in the circumstances not to stand on ceremony and hold it up, though they did enter a firm insistence that this should not be taken as a precedent.

These entries make it clear that despite the apparent abandonment of the practice in the early seventeenth century, as far as the lords were concerned those bills which concerned restitution and reversal of attainder did need to be signed by the monarch. It is true that these were few and far between. There had been no acts passed for restitution in blood since 1666, though there had been a bunch of acts for reversing attainders in 1689 and one in 1694. So categorical a statement by the Lords might encourage us to wonder whether the fact that there are no acts with the sign manual in the parliamentary archives does not mean that the practice of signing the bill had died out in the early seventeenth century, but is something to do with the nature of record keeping: perhaps the original signed bill was now discarded, and the act as retained in the archive was a new version. But again, without a full survey of the acts we can’t tell.

The important point here is that the Lords are recording the Queen’s consent in the journal. There are two more early cases in which Queen Anne’s consent is notified in the Lords journal, both of them in April 1712: a bill concerning Agmondisham [Amersham] Vesey and his children, and a bill concerning the settlement of the estate of James and Edward Griffin. The Griffins were presumably the son and grandson of the Lord Griffin who narrowly escaped execution for his part in the abortive Jacobite invasion of 1708; but it is unclear why Vesey’s bill required the queen’s consent. In both cases it is notified in the form: ‘Her Majesty (whose Interest is concerned in the said Bill), having been acquainted therewith, was pleased to consent to the passing thereof.’ Confusingly, though, there are other bills for reversing attainders which do not, as far as I have discovered, have entries in the journal recording the notification of Queen’s consent.

Do these 1702 and 1712 cases link the practice of grace bills and sign manual bills to the practice of notifying the sovereign’s consent verbally in the chamber and in the journal? They concern, it is true, private bills, rather than public bills, but since these bills and the 1729 and 1730 bills might both be classed as grace bills this distinction may not be relevant. The cases in the Lords journal and the cases in the Commons journal also take a rather different form. But this too, may or may not mean anything very much. The best one can say, after all this, is that the practice of announcing queen’s consent on public bills in the house and recording it in the journal may be a consolidation and rationalisation of various older practices in the early eighteenth century. But at the moment, we still don’t know.

Postscript

There is one further piece of evidence that as far as I know has not been linked to this discussion. It is an intriguing passage in the 1537 confession of Robert Aske, the leader of the Pilgrimage of Grace, the movement in opposition to the religious changes of the 1530s. Aske is being interrogated about his links to a peer, Thomas, Lord Dudley (who would like Aske be executed in 1537, albeit less gruesomely), and whether they had discussed the legislation. He responds that:

he remembers lord Darcy said that in any matter touching the King’s prerogative the custom of the Lords’ house was that they should have, upon their request, a copy of the bill to be scanned by their learned counsel in case they could perceive anything prejudicial to the prerogative or, if it were between party and party, if the bill were not prejudicial to the commonwealth; but now they could have no such copy so readily as they were wont to have in Parliament before. Of which he laid the blame to those of the Chancery in the use of their office and in the hasty reading of the bills and request of the speed of the same.

Aske’s memory of Darcy’s words was probably imperfect; and Darcy’s grasp of the niceties of chancery procedure was likely to be weak. But Aske was a lawyer, and was used to attending parliament to deal with legislation, so he may have had some knowledge of what he was talking about. Perhaps this is a reference to some sort of forgotten process of reviewing and passing bills for the king’s consent. Perhaps not. Like just about everything in the shadowy history of Queen’s consent, we just don’t know.

Further reading:

Michael A.R. Graves and Chris Kyle, ‘The Kinges most excellent majestie oute of his gracious disposicion’: the evolution of grace bills in English parliaments, 1547–1642’, Parliaments, Estates and Representation vol. 18 (1998)

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