fold claim us that "There were fallen to his lot, and concurrent in his his threeperson, 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." 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 declaracoronation 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." At this 1 "Hist. of the Reign of Henry VII.," Bacon's Works, vol. i. p. 315. 2 As to Henry's pedigree, see vol. i. P. 584 So great was the apprehension on that account that at a later day, while the bill for the settlement of the succession was pending before the lords, the chancellor assembled the judges in order to ascertain from them whether, 4 if the bill were passed, it would have Rot. Parl., vi. 268. See also Lin- tion of title held to re effects of 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, move all who induced them to agree that "the descent of the crown 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 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,3 and parliament was declaration brought face to face with the questions involved in Henry's claims to the crown, they silently ignored both of his suggestions 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, to be re by act of of parliament as to Henry VII.'s title; 1 Year-Book, Term Mich. 1 Hen. VII. 5. "But nevertheless, for honour's sake, it was ordained by parliament, that all records, wherein there was any memory or mention of the king's attainder, should be defaced, cancelled, and taken off the file."-"Hist. of Henry VII.," Bacon's Works, vol. i. p. 318. 2 As to the whole transaction, see Hussey's life in Campbell's Lives of the 3 Rot. Parl., vi. pp. 273, 278, 280-287. 4 Ibid., vi. p. 270; 1 Hen. VII. c. i. Of this act Hallam (Const. Hist., vol. i. p. 8) says: "Words studiously ambiguous, which, while they avoid the assertion of an hereditary right that the public voice repelled, were meant to create a parliamentary title." urge his beth of 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 commons consort the princess Elizabeth," 1 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 the subject him true and faithful service, shall be convicted of high trea- under a king de 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." Hen. VII. of star 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 Statute Rolls, which end with 9 Hen. VII., are merged, after 12 Hen. VII., in the Rotuli Parliamentorum. After 4 Hen. VII. the records of statutes are exclusively in the English language. 2 As to the inability of this act to bind future parliaments, Bacon says: risdiction of council; the days of 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.1 "The judicial supremacy of the king is the king in not limited or fettered by the new rule, . . . the old nucleus 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 as a 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." 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 coun- 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 statute; aim was not to narrow the criminal jurisdiction of the council, cil first nar widened by 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. Stubbs, Const. Hist., vol. i. p. 603. the King's Council, p. 34. 4"Hist. of Henry VII.," Bacon's Works, vol. i. p. 332. 5 See vol. i. p. 580, and p. 516, note 2. Hen. VII. C. I, reviv defining inal juris the council; famous act of 3 Henry VII. c. 1, is clearly revealed by its Act of 3 terms: "The king our said sovereign lord remembering how 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 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.1 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 Henry's statute must have been simply to revivify and define this such jurisancient jurisdiction, and at the same time to commit its exer- vested in a cise as a special duty to a committee of the council composed mittee; diction special com |