Imágenes de páginas
PDF
EPUB

con's views as to the

same;

[ocr errors]

of those specially named in the act. Of the special tribunal Lord Ba thus organized Lord Bacon writes: "And as the chancery

had the pretorian power for equity, so the star chamber had the censorian power for offences under the degree of capital. This court of star chamber is composed of good elements, for it consisteth of four kinds of persons, councillors, peers, prelates, and chief judges. It discerneth also principally by four kinds of causes, forces, frauds, crimes various of stellionate, and the inchoation, or middle acts towards crimes capital or heinous, not actually committed or perpetrated."'? As the elastic jurisdiction of the chancellor grew and widened in civil matters so as to meet the ever expanding wants of litigants, so the extraordinary jurisdiction of the council in criminal matters so widened as to meet the endless demands of despotic authority:3 This tendency to expansion finally brought about two important departures from the condition in which we find the criminal jurisdiction of the council after its invigoration by the act to which special reference has

powers of

committee

been made. The powers of the special committee or court, the special

which was organized under the act of 3 Henry VII. c. I, and. fall back to which maintained a separate existence for about fifty years, body of the fell back towards the close of the reign of Henry VIII. to the council;

general body of the council. The act of 31 Henry VIII., which gave to the royal proclamations the force of law, provided that offenders against them might be punished by the ordinary members of the council, together with certain bishops and judges, “in the star chamber or elsewhere." While the "censorian"

powers of the special committee were thus falling back to the main body of the council itself, those powers were

themselves expanding far beyond the statutory limits which such pow. had been originally assigned them. When it became convenfar beyond ient for the Tudor despotism to extend the criminal jurisdicthe limits tion of the council over offences not named in the act of 3 Hen. VII. 3 Henry VII. C. 1, cognizance of them was simply assumed,

and those who presumed to contend that the jurisdiction was

1 “ This was held to be not so much 3 “ The king only announces that, a novelty as a parliamentary recognition owing to the necessities of the times, of an ancient authority inherent in the he intends to exercise his criminal jurisprivy council.” -- Moberly, The Early diction, and delegates for this purpose Tudors, p. 71.

a small number of privy councillors, 2 “ Hist. of Henry VII.,” Bacon's with the assistance of two judges." Works, vol. i. p. 333.

- Gneist, Eng. Const., p. 505.

of the act of

C. 1 ;

limited by the act were not only ignored, but sharply reprimanded. Thus it appears that the court of star chamber as the court in

its final finally organized was nothing more nor less than the whole

form the council sitting judicially; and its jurisdiction as then exercised whole counwas practically unlimited. “ It is now no question of what judicially; it had a right to do, but of what it did."2 In its procedure outline of it disregarded the common law, it dispensed with trial by cedure: jury, it accepted report in lieu of the testimony of witnesses, it employed torture, and it could pronounce any judgment short of that of death.3 Such an institution, although it may have been well employed in the early Tudor days for the suppression of anarchy and the maintenance of order, finally proved itself to be equally efficient as an engine of tyranny, which forced alike the peasant and the noble, the law courts and the parliament, to crouch at the feet of its supreme and irresistible authority.*

4. While under the York and early Tudor monarchy the Henry VII. council was being abnormally developed into the vital organ ment: of the state,5 its natural antagonist, the parliament, whose place it had to a great extent usurped, was languishing under causes of disintegration and decay to which its constitution had yielded in the last days of the Lancastrian kings. As causes heretofore explained, the restriction of the suffrage had checked which led to the growing strength of the house of commons, while the prior to his

accession; decay of the feudal organization of the baronage and the weakness of the prelacy broke that of the house of lords. To

1 “Lord Chancellor Egerton would - Hudson, Collectanea Juridica, vol. ii. often tell that in his time, when he was a student, Mr. Serjeant Lovelace put 2 Dicey, The Privy Council, p. 105. his hand to a demurrer in this court for 8 For an outline of its procedure, see that the matter of the bill contained Ibid., pp. 100-116. Hudson's essay in other matters than were mentioned in the Collectanea Juridica describes in the statute 3 Hen. 7, and Mr. Plowden, detail the powers and procedure of the that great lawyer, put his hand thereto court as it appeared in the days of first, whereupon Mr. Lovelace easily James I. While its decrees seein to followed. But the cause being moved have been lost, the pleadings in the star in court, Mr. Lovelace being a young chamber are in the Record Office. man, was called to answer the error of 4 « The Council stands forth, as at his ancient Mr. Plowden, who very dis- the same moment, powerless and powcreetly made his excuse at the bar that erful. In its dealings with the crown it Mr. Plowden's hand was first unto it, is utterly weak, for it has lost every and that he supposed he might in element of independence. In its dealanything follow St. Augustine. And ings with the people it is irresistibly although it were then overruled, yet strong, for it combines every element Mr. Serjeant Richardson, thirty years of authority.” – Dicey, The Privy after, fell again upon the same rock, Council, p. 117. and was sharply rebuked for the same.” 5 See vol. i. pp. 562-576.

p. 8o.

in the

the history of the combined action of these causes, which made possible the emancipation of the monarchy at the accession of Edward IV., we must look for a full explanation of the almost entire suspension of parliamentary life which characterizes the politics of the sixteenth century, rather than to the incomplete and inaccurate statement which attributes such suspension to the assumptions that the older nobility had been to a great extent cut off in the Wars of the Roses, and that the commons had not yet grown sufficiently strong and selfreliant to act alone. The truth is that the decline of the baronage, which began in the days of the Edwards, progressed so rapidly under the Lancasters that, after the battle of Agincourt, the number of temporal peers touched its lowest point,

from that time to the accession of the Tudors they numonly two of bered but fifty-two. Only two of the great baronial houses — the great baronial

Beaufort and Tiptoft - became extinct for the want of heirs houses during the civil war, and the reason why only twenty-seven became extinct lay peers met Henry VII. in his first parliament is explained civil war; by the fact that he failed to summon twenty-five more upon Henry

whose fidelity he could not rely. The decay of the baronage, made no effort to

which had been gradually brought about by the wreck of feu

dalism, the extinction of the greater families, and the breaking decline of the up of great estates, Henry showed no disposition to check or baronage ;

repair. His coronation was attended with only three creations,

and the new nobility which grew up under him and his succesdependent sors was composed of new men, creatures of royal favor, who character of

assumed the rôle rather of courtiers than of parliamentary the new nobility; barons. Such of the older nobles as the Percies, the Nevilles,

and the Howards were held in check by the advancement of men like Morton, Fox, Wolsey, Cromwell, Cecil, Bacon, and Walsingham. As Bacon himself has told us : “ Henry VII. kept a strait hand on his nobility, and chose rather to advance clergymen and lawyers, which were more obsequious to him, but had less interest in the people,” 3 — a policy which was

1 See Green, Hist. of the Eng. People, nine. The Tudors restricted their crevol. ii. pp. 13-15; Moberly, The Early ations, with scarcely an exception, to Tudors, p. 27.

the old knightly families. Only once 2 " The aggregate number of the did the aggregate of the temporal peers newly created peerages, as well as of under the Tudors reach the number of those advanced in rank, is given as sixty." Gneist, Hist. of the Eng. follows: under Henry VII., twenty ; Const., p. 473.. under Henry VIII., sixty-six; under 3 “ Hist. of Henry VII.," Bacon's Edward VI., twenty-two ; under Mary, Works, vol. i. p. 383. nine; and under Elizabeth, twenty.

check the

of that of

IV.;

pursued both by Henry VIII. and Elizabeth. The policy of Henry VII. towards the parliament as a whole was simply a Henry's repetition of that of Edward IV. Like Edward, Henry was tary policy willing to summon parliament only on rare and critical occa- a repetition sions, when it was necessary to draw strength from its authority Edward or revenue from its bounty. Like Edward, Henry looked to parliament for a recognition of his title, for a grant of tonnage and poundage for life, and for bills of attainder from which he could enrich himself from the spoils of his enemies. Strength- his financial ened by such a beginning, it seemed to be the prime object of policy ; his policy to render himself independent of parliament, by reducing to the smallest possible limit his expenditures, on the one hand, and by increasing his revenues, on the other, by the enforcement of all kinds of obsolete feudal forfeitures and amercements, and by a revival of that odious form of royal taxation known as benevolences. The exchequer was greatly benevo

lences; enriched at one time from the source last named through the enforcement of an argument called “Morton's fork,” invented Morton's

fork; by the archbishop of that name, who maintained that those who lived handsomely should give liberally because their wealth was manifest, and that those who lived plainly should be even more liberal because it was certain that economy had made them opulent. More odious even than these forced revival of contributions were the fines and other obsolete feudal exac- feudal extions which the king, in imitation of Edward IV., mercilessly actions,

Empson enforced through two infamous agents, Empson and Dudley, and

Dudley ; who practiced all kinds of oppressions and illegalities, and who robbed every class in order to enrich the king, and who robbed the king in order to enrich themselves. Such a financial policy, although it deeply stained Henry's memory, brought to parliament him the independence of parliament which he designed to se only seven cure. During the twenty-four years of his rule he summoned times durparliament only seven times, and nearly all of these meetings reign;

1 In 1490 and in 1497, when general with the aid of “Morton's fork,” to the subsidies (one of a novel character) system of benevolences under which the were levied upon the nation, serious burden of taxation fell mainly upon the insurrections occurred; the first in the wealthier classes. Benevolences were north, and the last in Cornwall, which abolished in the parliament of Richard was suppressed only after great blood- III., but Richard himself had ignored shed. See Lingard, vol. iii. pp. 314, 324. the statute the moment that invasion In order to remove the irritation thus was threatened. Vol. i. p. 588. Upon produced by the pressure of general the whole subject, see Dowell, Hist. of taxation, Henry seems to have resorted, Taxation, vol. i. pp. 127-129, 200.

hoard.

mediate remedies

evils;

his two

one to secure the

were called in the first half of the reign. During his last

thirteen years, parliament was summoned only once. At his the king's death the king's hoarded treasure is said to have amounted to

nearly two millions of pounds. Henry's

5. A careful review of the legislation of Henry VII. will legislation; hardly sustain the eulogy of Lord Bacon, who has pronounced

him to be “the best lawgiver to this nation since Edward I." Henry's laws seemed to have been designed, not so much as Bacon says, “out of providence for the future, to make the

estate of his people still more and more happy, after the manits leading ner of the legislators in ancient and heroical times," as from provide im- a desire to provide immediate remedies for the lawlessness

and disorder which remained as the natural legacy of the civil for pressing war. To restore peace, order, and confidence to the realm,

by strengthening the royal authority, and by providing new expedients for the enforcement of existing laws, seems to have

been the leading motive of Henry's legislation. To quiet the utes, the minds of such as might doubt the stability of his title, he en

acted the statute for the protection of the subject who served subject a king de facto; to crush the expiring system of livery and

maintenance, as well as the riots and disorders which disturbed facto; the

the local administration of justice, he enacted the statute which strengthen, so greatly invigorated the criminal jurisdiction of the counjurisdic- cil as exercised in the star chamber. With the same general council;

design were passed the acts which provided for the punishment of vagrants, and of those who attempted to enrich them

selves by the stealing of women of fortune.2 In this connecthe act in- tion may be noted the act (3 Hen. VII. c. 3) which gave authority of authority to justices of the peace to take bail of felons under justices of conditions which finally led to their being charged with the the peace;

duty of making preliminary investigations in all criminal cases.3

The most notable act of the reign touching private right is Statute of the act of 4 Hen. VII. c. 24, known as the Statute of Fines,

which Henry was at one time supposed to have enacted with the subtle design of completing the ruin of the aristocracy by enlarging their power to alienate their entailed estates. This misconception of motive, which seems to have been borrowed 1 The last parliament called was that 3 See Gneist, Hist. of the Eng. Const.,

under a

king de

other to

tion of the

Fines;

p. 466; Stephen, Hist. of the Crim. 2 See Reeves' Hist. Eng. Law, vol. Law of Eng., vol. i. pp. 236, 237. iv. pp. 181, 202.

of 1504.

« AnteriorContinuar »