292 The Fenod of Constitution Making
prerogative and outside the area occupied by the law, there
is, and must be, a vague and undefined power to act for the
good of the State. ... On this lawless province, law and
custom gradually encroach, either in the interest of the sover-
eign or of the subject, . . . The less advanced the State,
or, in other words, the less complete the control of law and
custom, the larger will be the area over which the sovereign
is free to act. It was still very large in the days of the Tudors.z
There was little attempt to define the royal prerogative
in the fourteenth and fifteenth centuries.2 There was
clearly a recognition of those definite functions and rights
of the crown which constitute the prerogative in the first
sense; and there are indications that most of the sovereigns
ascribed to themselves extensive powers beyond and were
not so much impressed by the limitations implied in
confirmations of the Charters and similar acts as were
the people.3 When it has been shown what power
Parliament had gained by the end of the fifteenth century,
a collision between crown and House of Commons in the
"lawless province" will seem quite inevitable. Interest
in the theory of sovereignty and authority in general was
rising steadily in the fourteenth and fifteenth centuries;
the conditions in Christendom—Babylonian Captivity,
Great Schism, Ecumenical Councils—forced it. Then
came the Protestant Revolution with its infinite curiosity
about all sorts of sovereignty, its deadly blow to ex
cathedra authority, and a religious passion injected into
political thought. The conflict was near and men began
to concern themselves with "forming clear notions of
authority and defining its abode."4
* Prothero, Statutes and Constitutional Documents, pp. cxxii.-cxxiv.
passim.
3 However, the great Statute of Treasons of 1352, with the further but
passing definitions of 1397 and 1414, and the beginning of "constructive
treasons*' through, free interpretation of the statute, looked in that direc-
tion,
3 See above, pp. 282, 283.
4 Cowell, in his famous Interpreter, misquoted Bracton where he cited him
as saying that the king " is above the law by his absolute power.''—Protbero,
.Statutes and Constitutional Documents\ p. 409, and above, p. 277 and note 2.