Outline of the policy of Edward IV.; two centuries.1 In England, whose insular position obviated the necessity for standing armies,2 the monarchy, armed only with moral force, never attempted to end the existence of the parliament. The new system of absolutism reëstablished by the house of York and perpetuated by that of Tudor did not aim at the abolition of the older forms of legal and constitutional life by which the monarchy had been fettered for more than a century; it simply strove to extinguish forever the vital spirit which in the better days had made them actual restraints upon the royal authority. In the brief review heretofore made of the reign of Edward IV. the fact was emphasized that the causes which at his accession led to the reëstablishment of the monarchy, and to the suspension of the system of parliamentary life by which it had been for so long a time held in bondage, must be found in the processes of dissolution and decay which by that time had not only undermined the corporate vitality of each of the three estates, but had also dissolved that spirit of union and interdependence which in the earlier days had bound them to each other. At the end of the civil war, the one political force that seems to have survived, the one force that stood out above the turbulence of the times with power to guarantee order, and to insure protection to all classes and conditions of men, was embodied in the royal authority. To permanently emancipate that authority from the control of the parliament, and at the same time to so systematize and incorporate its powers as to make it the one dominant and irresistible force in the state, was the prime object of Edward's policy. Without abolishing 8 Such a thing was threatened, however, by Charles I.; and Carleton, speaking in the king's behalf, told the house in 1626: "In all Christian kingdoms you know that parliaments were in use anciently until the monarchs began to know their own strength; and, seeing the turbulent spirit of their parliaments, at length they by little and little began to stand upon their prerogatives, and at last overthrew the parliaments throughout Christendom, except here only with us." He concluded by saying, "This is a misery beyond expression, and that which yet we are free from." 4 See vol. i. pp. 562-583. authority nant force gan, the right; the parliamentary system, without changing the outward form the royal of the system of legal administration, the York and Tudor beco monarchy was content to overawe both, to manipulate both, the domiand to render both subservient to the despotic powers of the in the state; council in which the royal will was omnipotent. The vital its vital ororgan of the monarchy was the council, and the mainspring of council; the council was "the idea of an extraordinary dictatorial power residing in the king, which in any state crisis could thrust aside the self-imposed barriers, laws, and judicial constitution, and find a remedy by extraordinary measures, jurisdiction, and ordinances."1 In that way the history of the council became the history of the monarchy. Although he subsequently hereditary sought recognition at the hands of parliament, Edward was careful at the outset of his reign to base his claim to the throne solely on the self-sustaining theory of hereditary right, —a right which he claimed the Lancastrian parliaments had no power either to break or set aside. Thus secured against dangers growing out of a purely parliamentary title, he was also careful to resort to every expedient to protect the monarchy against that most dangerous of all the restraining measures to which the parliamentary system had given birth, the power of the estates to coerce the crown through the withholding of supplies. The most potent safeguard which Edward erected Edward's against that danger was embodied in a policy of peace that re- policy; mained almost unbroken during a period of a hundred and fifty years. While his exchequer was thus saved from the drain of war on the one hand, his coffers were filled on the other by sweeping bills of attainder, and by a grant of tonnage and poundage for life.2 To these resources were added the proceeds of that most obnoxious form of royal taxation known as benevolences, the profits which the king derived from his ventures as a private trader, the fruits of numberless petty exactions drawn from the revival of dormant claims of the crown, and fines exacted for the breach of forgotten tenures. Thus rendered independent of grants from the estates, the crown 1 Gneist, The Eng. Const., p. 452 (Ashworth's trans.). 2 This grant was made after the battle of Hexham, Par. Rolls, v. 508. 3 The enforcement of so many claims upon the part of the crown led to an increase in the number of its law offi cers. Prior to the accession of Edward financial meetings of parliament; engine of tyranny. infrequent soon began to ignore the long established right of the nation to express its will, at least once a year, through a national council. During the quarter of a century of Yorkist rule the nation was but seven times called upon to elect a new parliament. While Edward was thus emancipating the monarchy from the financial restraints which the growth of the parliamentary system had put upon it, he was careful to impart a fresh force to the judicial powers of the council which the growth of the law courts, and the rise of the equitable jurisdiction of the chancellor, had contracted without exhausting. the council During the reign of Henry VI. the turbulent local magnates, becomes an with their liveried retainers at their backs, had so far disturbed and overawed the local administration of justice that it became necessary to authorize the council by statute (31 Hen. VI. c. 2) to draw before it all persons and all causes that could not be dealt with in the ordinary tribunals. The honest effort thus made to strengthen the hands of the council, in order to make it the defender of order against anarchy, was followed in the reign of Edward IV. by a deliberate attempt to convert the council into an irresponsible engine of tyranny. Although à break in its records deprives us of the memorials of its daily transactions from 1460 to 1520,1 it may be safely assumed from such facts as are accessible that from the accession of Edward IV. began that systematic and inquisitorial supervi sion upon the part of the council of all matters, great and small, public and private, which never ceased until the meeting of the Long Parliament. Henry VII. 2. By his victory at Bosworth Henry VII., scarcely thirty years old, was brought face to face with the double task of founding a dynasty and of maturing and expanding the new monarchical system which Edward IV. had inaugurated. The difficulties which the undertaking involved can hardly be overestimated. By the fate of a single battle an attainted exile and adventurer was suddenly transformed into a king with a claim to the crown too vague and shadowy for precise definition. Lord Bacon, in his famous history of Henry's reign, tells bear that title. The words of his patent, recordo." See Reeves, Hist. of Eng. Law, vol. iv. p. 151; Campbell, Lives of the Chief Justices, vol. i. p. 159. 1 See Dicey, The Privy Council, p. 76. 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."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 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."4 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, if the bill were passed, it would have tion of title move all 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 sug gestion 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, 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." 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, 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 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 ment as to Henry VII.'s title; 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." |