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us that “There were fallen to his lot, and concurrent in his his three
fold claim person, three several titles to the imperial crown.
The first, of title ; the title of the Lady Elizabeth, with whom, by precedent pact with the party that brought him in, he was to marry. The second, the ancient and long disputed title, both by plea and arms, of the house of Lancaster, to which he was inheritor in his own person.
The third, the title of the sword of conquest, for that he came in by victory of battle, and that the king in possession was slain in the field.” 1 Each one of these theories of right was, however, subject to a serious embarrassment. To base his claim to the crown upon his contemplated marriage with Elizabeth was to make to the hated and vanquished house of York the most humiliating of all acknowledgments. If he claimed as the heir of the house of Lancaster, the fact stood out that the legitimate male line of that house was extinct, — that its claim survived only in the bastard branch represented by the Beauforts, whose right to the succession had been cut off, impliedly if not expressly, by an act of parliament. And even with the house of Beaufort, Henry could only claim connection through one of its female descendants.2 If he claimed by conquest, the danger was that the nation would be alarmed by the intimation that a general dispossession of the conquered might follow. In the midst of such embarrassments Henry assumed the crown, and as soon as his his declara
tion of title coronation was over, he summoned a parliament, to which he
in parliaboldly announced, when the commons presented their speaker, ment; that "he had come to the throne by just title of inheritance, and by the sure judgment of God, who had given him victory over his enemy in the field.” To allay such 'apprehensions as the last statement would naturally excite, he added that all might “enjoy his rights and hereditaments, with the exception of such persons as in the present parliament should be punished for their offences against his royal majesty.” 4 At this
1 " Hist. of the Reign of Henry if the bill were passed, it would have VII.," Bacon's Works, vol. i. p. 315. the effect " of resuming all the fran
? As to Henry's pedigree, see vol. i. chises and liberties of all manner of P. 584.
persons," as in the event of the acquiSo great was the apprehension on sition of the crown by conquest. The that account that at a later day, while judges replied that it would not. Year. the bill for the settlement of the suc- Book, Term Hil. i Hen. VII. 25. cession was pending before the lords, 4 Rot. Parl., vi. 268. See also Linthe chancellor assembled the judges in gard, vol. iii. p. 298. order to ascertain from them whether,
stage of the proceedings a serious question arose, which led to the declaration of an important principle of constitutional law. In the preceding reign not only had Henry been attainted, but more than half of the peers now summoned, as well as a large number of those who composed the lower house. The suggestion was made that the attainder of the king could not be reversed in the usual manner because while he was under the
ban he could not lawfully exercise any of the functions of roythe descent alty. In order to remove this difficulty from the path of legisof the crown lation, the judges were assembled by Hussey, Chief Justice, held to remove all who induced them to agree that “the descent of the crown effects of attainder ; of itself takes away all defects and disabilities arising from
attainder, and therefore that the act of attainder must be considered as already virtually reversed.” 1
But when the proposition was made that the attainders of the members should be treated as a nullity on the ground that Richard III., who had
assented to the act, was a usurper, the Chief Justice cautiously attainders answered "that it would be of dangerous example to suffer of subjects those who ought to observe a law to question the title of the moved only sovereign under whom the law had been enacted, and that the by act of parliament; attainted
peers and commoners ought not to take their seats in either house till their attainder had been reversed by a new act of parliament assented to by the king who now is.” 2
When all legal incapacities were removed, and parliament was declaration brought face to face with the questions involved in Henry's of parlia: claims to the crown, they silently ignored both of his sugges
tions as to inheritance and conquest, and simply declared that “the inheritance of the crown should be, rest, and remain, and abide in the most royal person of the then sovereign lord, king Henry VII., and the heirs of his body lawfully coming perpetually with the grace of God so to endure, and in none other." 4 In other words, the estates refused to recognize in the new aspirant, who claimed to represent the house of Lancaster, 1 Year-Book, Term Mich. i Hen. VII. Hussey's life in Campbell's Lives of the
“But nevertheless, for honour's Chief Justices, vol. i. p. 162. sake, it was ordained by parliament, 8 Rot. Parl., vi. pp. 273, 278, 280–287. that all records, wherein there was any 4 Ibid., vi. p. 270; i Hen. VII. c. I. memory or mention of the king's attain. Of this act Ilallam (Const. Hist., vol. der, should be defaced, cancelled, and i. p. 8) says: “Words studiously ambigtaken off the file.” — “Hist. of Henry uous, which, while they avoid the asVII.," Bacon's Works, vol. i. p. 318. sertion of an hereditary right that the 2 As to the whole transaction, see public voice repelled, were meant to
create a parliamentary title.”
ment as to Henry VII.'s
any higher title to the crown than that under which that house had originally come into possession of it, namely a parliamentary title. Not until Henry had thus received alone the highest sanction that the nation could give, was he willing to hearken to the request of the commons to “take to wife and consort the princess Elizabeth," I who was not mentioned in marriage the act of settlement, and whose coronation he delayed for with Elizanearly two years. But neither the solemn sanction of parlia- York; ment nor his marriage with the heiress of the house of York gave to the new king peaceful possession of the royal authority. During a period of nearly thirteen years Henry was harassed in turn by two pretenders, the histories of whose exploits constitute a striking illustration of the folly and credulity of mankind. Not until the executions in the fall of 1499 of Perkin Warbeck and of Edward Plantagenet, earl of Warwick, were the last dangers removed which could menace the peace of the realm and the title of the house of Tudor. During the latter part of this period of revolt, rebellion, and uncertainty a natural sense of apprehension brought about the enactment of a statute which is generally regarded as one of the most important of the reign. The act of 11 Henry Act (11 VII. c. I provides that “no person attending upon the king C. 1) for the and sovereign lord of this land for the time being, and doing security of him true and faithful service, shall be convicted of high trea- under a son by act of parliament or other process of law, nor suffer facto. any forfeiture or punishment; but that every act made contrary to this statute shall be void and of no effect.”' 2 It is strange that an act so wisely designed to strengthen Henry's hold upon the crown should have been characterized by Bacon as“ rather just than legal; and more magnanimous than provident.”
3. The last mentioned act for the security of the subject The court under a king de facto is surpassed in importance only by the chamber : famous statute, enacted at a much earlier day, to which is usually traced that abnormal development of the criminal
1 Rot. Parl., vi, p. 278. The separate bind future parliaments, Bacon says : Statute Rolls, which end with Hen. “For a supreme and absolute power VII., are merged, after 12 Hen. VII., cannot conclude itself, neither can that in the Rotuli Parliamentorum. After which is in nature revocable be made 4 Hen. VII. the records of statutes are fixed.” — “Hist. of Henry VII.,” Ba. exclusively in the English language. con's Works, vol. i. p. 256.
2 As to the inability of this act to
jurisdiction of the council generally known as the court of star chamber. The fact has been heretofore emphasized that the undefined judicial powers of the king in council were not
exhausted by the growth out of that body of the great courts original ju- of law and equity. “The judicial supremacy of the king is the king in not limited or fettered by the new rule, ... the old nucleus council ;
of light remains unimpaired." 2 After the organization of the four great courts at Westminster the council still retained
a residuary jurisdiction, both civil and criminal, original and the council appellate. “ It seems," says Sir Francis Palgrave, “that in asa court in the reign of Henry III, the Council was considered as a court Henry III.; of peers within the terms of Magna Carta ; and before which,
as a court of original jurisdiction, the rights of tenants holding in capite, or by barony, were to be discussed or decided ; and it unquestionably exercised a direct jurisdiction over all other of the king's subjects."3 The tendency of this unlimited and undefined jurisdiction of the council, which Bacon says "subsisted by the ancient common laws of the realm," was to
encroach upon the inferior tribunals, and such encroachment jurisdiction led to the enactment of a series of restraining statutes, which of the council first nar
extend from the reign of Edward I. to that of Henry IV. With rowed, then the reign of Henry VI. a new legislative policy begins, whose widened by
aim was not to narrow the criminal jurisdiction of the council, but to give to it wider expansion. When, in the latter part of that reign, the ordinary administration of law gave way under the strain which the turbulence of the times put upon it, parliament authorized the council to draw before it all persons and all causes that could not be dealt with in the ordinary tribunals. When the turbulence, the lawlessness, the uncertainty, which existed at the beginning of Henry VII.'s reign are taken into account; when the fact is remembered that the evils of livery and maintenance were still in full vigor to hinder the local administration of existing laws, it is not hard to understand why the extraordinary criminal jurisdiction of the council, which Edward IV. had abused, should have been again invoked, as in the days of Henry VI., in the interest of order against anarchy. That such was the motive of the See vol. i. pp. 249–252.
4 “ Hist. of Henry VII.," Bacon's Stubbs, Const. Hist., vol. i. p. 603. Works, vol. i. p. 332. 's Essay on the Original Authority of 5 See vol. i. p. 580, and p. 516, note 2. the King's Council, p. 34.
famous act of 3 Henry VII. c. 1, is clearly revealed by its Act of 3
Hen. VII. terms: “The king our said sovereign lord remembering how
c. 1, reviv. by unlawful maintenance, giving of liveries, signs, and tokens, ing and and retainders by indentures, promises, oaths, writings, or the crimotherwise embraceries of his subjects, untrue demeanings of diction of
the council ; sheriffs in making of panels and other untrue returns, by taking of money by juries, by great riots and unlawful assemblies, the policy and good rule of this realm is almost subdued, and for the not punishing of these inconveniences, and by reason of the premises, little or nothing can be found by inquiry [i. e., by jury trial]. . . . Therefore it is ordained for reformation of the premises by authority of said parliament, that the chancellor and treasurer of England for the time being, and keeper of the king's privy seal, or two of them, calling to them a bishop and a temporal lord of the king's most honorable council, and the two chief justices of the king's bench and common pleas for the time being, ... have authority to call before them by writ or by privy seal the said misdoers, and them and other by their discretion, by whom the truth may be known, to examine, and such as they find therein defective to punish them after their demerits.” In the midst of all the doubt and difficulty which learned refinement has thrown around the meaning and purport of this act, it is safest to assume that it was not intended to create a new tribunal, or even to vest in the council a fresh jurisdiction. The soundest of the modern critics agree in the conclusion that it was only intended to invigorate and emphasize by parliamentary sanction the ancient prerogative criminal jurisdiction of the crown, which, as early as the reign of Edward III., we hear of the "chancellor, treasurer, justices, and others " exercising in the “chambre des estoiles" at Westminster. The intention of Hen
such jurisry's statute must have been simply to revivify and define this ancient jurisdiction, and at the same time to commit its exer- vested in a
special comcise as a special duty to a committee of the council composed mittee;
1 For the older literature touching on the subject, see Reeves' Hist. Eng. the history of the star chamber, see Law, vol. iv. pp. 205-212; Palgrave's Hudson's "Treatise on the Star Cham * Essay on the Original Authority of ber," in Collectanea Juridica, vol. ii.; the King's Council,” Hallam's Const. Sir Thomas Smith, Commonwealth of Hist., vol. i. pp. 48–56 ; Sir J. F. SteEng., bk. iii. cap. 1; Hist. of Henry phen, Hist. of the Crim. Law of Eng., VII.,” Bacon's Works, vol. i. p. 334; vol. i. pp. 166-184; Dicey, The Prizry Hale's Jurisdiction of the House of Council, pp. 94-115; Gneist, Hist. of the Lords, c. v. For the modern literature Eng. Const., pp. 504-513.