Constructive treason. Torture. Bills of attainder. of English precedent, was thus taking jurisdiction of cases of high treason in his novel tribunal, the English law upon that subject was itself being grossly abused in the common law courts through an unwarrantable expansion of the doctrine of constructive treason. Despite the famous Statute of Treasons (25 Edw. III.),1 which attempted to fix the law upon a definite basis by an explicit enumeration of the cases to which it should be applied, there was a constant tendency upon the part of the courts in these evil times to extend the act to cases not enumerated in it.2 In Edward's reign also appears the first clearly authenticated instance in the history of English law of the employment of torture as a means of forcing accused persons to confess or to betray their accomplices.3 In connection with the despotic practices which at this time pervaded the administration of justice in the ordinary tribunals, should also be noted that gravest of all judicial abuses which, during the reigns of Henry VI. and Edward IV., recurred with shocking frequency in the proceedings of the high court of parliament itself. Although bills of attainder had been employed at a much earlier day, it was during the period of passion engendered by the civil war that the summary power of parliament to punish criminals by statute was for the first time perverted and abused. The calm and deliberate exercise of the judicial power of the whole parliament by process of impeachment, wherein the commons as the grand inquest of the realm were required to maintain their accusations by sufficient evidence adduced before the lords sitting as judges, but illy satisfied the necessities of a dynastic struggle in which the victors were ever eager for the heads of the vanquished. Far better adapted to this condition of things was the proceeding by bills of attainder, in which, if the parliament saw fit to refuse to hear the accused in his defence, the validity of the judgment could never be questioned in any court whatsoever.5 The accused, even 1 The crime of treason, which was In 1468 an accused person, by the plices.-W. Worcester, p. 789. For early instances of the use of torture, see first volume of Mr. L. O. Pike's History of Crime; Coke, 3 Inst., p. 35. Such was the procedure employed by parliament in the banishment of the two Despensers in 1321. See 1 St. Tr. PP. 23, 38. 5 See Coke, 4 Inst., p. 37. cedure under a bill of attainder, was, however, as a matter of grace, usually permitted to defend himself both by counsel and witnesses. "The proceedings of parliament in passing bills The proof attainder, and of pains and penalties, do not vary from thereunder. those adopted in regard to other bills. They may be introduced in either house, but ordinarily commence in the house of lords they pass through the same stages; and when agreed to by both houses, they receive the royal assent in the usual form. But the parties who are subjected to these proceedings are admitted to defend themselves by counsel and witnesses, before both houses; and the solemnity of the proceedings would cause measures to be taken to enforce the attendance of members upon their service in parliament." 1 tion of III. 9. The emancipated monarchy, which under the ruthless Usurpaleadership of Edward had trampled upon the parliament and Richard overawed the entire system of legal administration, passed at his death in April, 1483, to his infant son, known in English history as Edward V. The royal authority thus transmitted by the unaided force of the hereditary principle was destined to abide only for a moment in the person of the boy king. Edward, who had dyed his hands in the blood not only of his Lancastrian foes, but in that of his own house, had, through the irony of fate, left his helpless brood as a stumbling-block in the path of his ambitious brother, Richard, Duke of Gloucester, who had been drawn into tempting proximity to the throne through the murder of Clarence. The tragic episode - during which Richard overawed the council and secured the protectorship through the overthrow of Hastings, and then the crown itself through the murder, as all the world believed, of Edward's children was of but short duration. On the 4th of May Gloucester was declared protector; on Richard de the 24th of June his right to the crown was proclaimed at tector on Guildhall by his co-conspirator, the Duke of Buckingham; 2 4th May, on the next day an informal assembly of notables met at crowned 6th July, Baynard's Castle and presented him a petition,3 in which he 1483. was solicited to accept the crown as the only lawful heir of Richard, Duke of York; and on the 6th of July 4 he and his 1 May, Parl. Practice, p. 744. All with the authorities, vol. iii. pp. 275282. references to this work are to the 9th ed. 2 See Lingard, who gives the details 8 Rot. Parl., vi. pp. 240, 241. 4 Cont. Croyl., p. 567. clared and pro Henry Tu dor chal lenges the crown, his pedi gree. His first at tempt in Oct., 1483, unfortunate. Richard's only parlia ment met in Jan., 1484. --- consort Anne, the daughter of Warwick, were crowned at Westminster. Within three months after that event the crown which Richard had forcibly taken away from his brother's children was challenged by a new and dangerous pretender, Henry Tudor, Earl of Richmond, who, in the absence of a better claimant, assumed to represent the house of Lancaster. With the death of Henry VI. and his son, the legitimate male line of Lancaster had become extinct, its claims survived only in the bastard branch represented by the house of Beaufort. And the male line of that house had also been extinguished by the fall of the last Duke of Somerset at Tewkesbury. Henry Tudor, who traced his descent through the female line of the house of Beaufort, was the son of Margaret Beaufort - the great-granddaughter of John of Gaunt and Edmund, Earl of Richmond, the son of Catherine, widow of Henry V., who had married a Welshman by the name of Owen Tudor. The new claimant, who had found shelter in Brittany during the reign of Edward IV., now threatened invasion. In October, 1483, Henry sailed with a fleet from Brittany, and at the same time Buckingham, who had broken with Richard, together with the Woodvilles and the Courtenays, raised the standard of revolt in England. But the enterprise was both premature and unfortunate. A storm delayed Henry's arrival; the confederates failed to join forces; and Buckingham, the chief of the conspiracy, lost his head. In the proclamation which the new claimant put forth at this time, a fact was announced which until then seemed to have been carefully concealed, the murder of the princes in the Tower. With his popularity menaced by this ghastly disclosure, and with his right to the crown challenged by a resolute though baffled opponent, Richard, in the hope of winning the support of the nation, was not slow in calling a parliament, which met in January, 1484.2 In this his only parliament, the usurper made every effort not only to strengthen his hold upon the crown by means of a parliamentary election, but also to win popular favor by consenting to a series of measures designed in the interest of commerce and reform. In the act passed for the settlement of the 1 See Green, Hist. Eng. People, vol. ii. p. 62. 2 Rot. Parl., vi. p. 237; Cont. Croyl., P. 570. of Rich passed for ment of the succession the attempt was made not only to vest the crown in Richard and his issue, but to restate, as a matter of history, the circumstances and the claims under which he had accepted it in the first instance. "This act recites that a Statement roll had been presented to Richard, as Duke of Gloucester, ard's title before his coronation, on behalf and in the name of the three in the act estates of the realm, . . . but that neither the three estates, the settlenor the persons who presented such roll, were assembled in succession. form of parliament; and therefore it was ordained and established in parliament, that the tenor of the said roll, and the contents thereof, should, by the three estates then assembled in parliament, and by authority of the same, be ratified, etc., and be of the same force as if the same things had been done in parliament. The roll is then set forth, in which, after stating the right of Richard, as undoubted son and heir of Richard, Duke of York, in right king of England by way of inheritance, and asserting the bastardy of the children of Edward the Fourth, and the disability of the children of the Duke of Clarence by reason of the attainder of their father, it is stated that the persons presenting such roll had chosen in all that in them was, and by that writing chose, Richard unto their king and sovereign lord; and prayed him, that according to this election by them, as the three estates of the land, and by his true inheritance, he would accept and take the crown and royal dignity, etc., as well by inheritance as by lawful election."1 In this statement, put forward in the first instance by the notables, and then adopted and ratified in a regular parliament, a studied effort was made to strengthen Richard's title by blending in its support the Blending waning doctrine of elective kingship and the new feudal trine of theory of indefeasible hereditary right. As the represen- kingship tative of the house that impersonated the hereditary theory, with the Richard was compelled to employ every pretence, however ory of he specious, to remove from his path the prior claims of the right." children of Edward and of Clarence; and yet the very weakness of his pretences drove him to seek shelter under the sanction of a parliamentary election. That the nation, although silent under the despotic policy of Edward IV., did not patiently acquiesce in the result of 1 Lords' Report, vol. i. p. 371. of the doc. elective feudal the reditary tions of the Benevo lences for An outcry the revolution through which its liberties had been overagainst the extortions thrown, clearly appears from a petition addressed by the citiand imposi zens of London to Richard III., in which the declaration is preceding made that "We be determined rather to adventure and comreign. mit us to the peril of our lives and jeopardy of death than to live in such thraldom and bondage as we have lived some time heretofore, oppressed and injured by extortions and new impositions against the laws of God and man and the liberty and laws of this realm wherein every Englishman is inherited." In this outcry against "extortions and new impositions" can no doubt be found the motive for the statute 2 now enacted, in which the evil practice of extorting benevolences was not only forbidden, but denounced as a new and bidden, and unlawful invention. In addition to the guarantee thus given popular leg against the most obnoxious form of illegal taxation, other statutes were passed of a popular character, chief among which may be noted those designed for the promotion of the growing interests of English commerce, for the reform of legal procedure, and for the prevention of the mischief arising from secret feoffments which the perils of the civil war had greatly multiplied. Another statute was also passed at this time which bears an important relation to the history of uses. Owing to the fact that the king was incapable of holding to a use, it was enacted that, where Richard was enfeoffed to uses jointly with other persons, the land should vest in the co-feoffees; where he was the sole feoffee, it should vest in the cestui que use, an early statement of the principle, afterwards embodied in the great Statute of Uses (27 Henry VIII. c. 10), that the position of the cestui que use should in all cases be assimilated to that of legal owner. islation enacted. Statute upon the subject of uses. Tunnage As a recognition, no doubt, of the concessions made by the king in the interest of reform, parliament on the last day of the and pound- session granted him tunnage and poundage, and a subsidy on wool for life. A few days later Richard by charter confirmed to the clergy the privileges which had been secured to them shortly after the accession of Edward IV. age and a subsidy on wool granted for life. |