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ground, incensed by proscription and elated by success; the late CHAP. battle had in effect been a contest between one usurper and another; and England had little better prospect than a renewal of Henry VII. that desperate and interminable contention, which the pretences of hereditary right have so often entailed upon nations.

A parliament called by a conqueror might be presumed to be itself conquered. Yet this assembly did not display so servile a temper, or so much of the Lancastrian spirit, as might be expected. It was" ordained and enacted by the assent of the lords, and at the request of the commons, that the inheritance of the crowns of England and France, and all dominions appertaining to them, should remain in Henry VII. and the heirs of his body for ever, and in none other*." 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, before which the pretensions of lineal descent were to give way. They seem to make Henry the stock of a new dynasty. But, lest the spectre of indefeasible right should stand once more in arms on the tomb of the house of York, the two houses of parliament showed an earnest desire for the king's marriage with the daughter of Edward IV., who, if she should bear only the name of royalty herself, might transmit an undisputed inheritance of its prerogatives to her posterity.

This marriage, and the king's great vigilance in guarding his crown, caused his reign to pass with considerable reputation, though not without disturbance. He had to learn by the extraordinary, though transient, success of two impostors, if the second is to be reckoned such, that his subjects were still strongly infected with the prejudice which had once overthrown the family he claimed to represent. Nor could those who served him be exempt

*Rot. Parl. vi. 270. But the pope's bull of dispensation for the king's marriage speaks of the realm of England as "jure hæreditario ad te legitimum in illo præde

VOL. I.

cessorum tuorum successorem pertinens."
Rymer, xii. 294. And all Henry's own
struments claim an hereditary right, of
which many proofs appear in Rymer.

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CHAP. from apprehensions of a change of dynasty, which might convert them into attainted rebels. The state of the nobles and gentry Henry VII. had been intolerable during the alternate proscriptions of Henry VI. and Edward IV. Such apprehensions led to a very important statute, in the eleventh year of this king's reign, intended, as far as law could furnish a prospective security against the violence and vengeance of factions, to place the civil duty of allegiance on a just and reasonable foundation, and indirectly to cut away the distinction between governments de jure and de facto. It enacts, after reciting that subjects by reason of their allegiance are bound to serve their prince for the time being against every rebellion and power raised against him, that "no person attending upon the king and sovereign lord of this land for the time being, and doing him true and faithful service, shall be convicted of high treason, by act of parliament, or other process of law, nor suffer any forfeiture or punishment; but that every act made contrary to this statute should be void and of no effect*." The endeavour to bind future parliaments was of course nugatory; but the statute remains an unquestionable authority for the constitutional maxim, that possession of the throne gives a sufficient title to the subject's allegiance, and justifies his resistance of those who may pretend to a better right. It was much resorted to in argument at the time of the revolution, and in the subsequent period †.

It has been usual to speak of this reign as if it formed a great epoch in our constitution, the king having by his politic measures broken the power of the barons who had hitherto withstood the prerogative, while the commons had not yet risen from the humble station which they were supposed to have occupied. I doubt,

Stat. 11 H. 7, c. 1.

+ Blackstone (vol. 4, c. 6,) has some rather perplexed reasoning on this statute, leaning a little towards the de jure doctrine, and at best confounding moral with legal obligations. In the latter sense, whoeve attends to the preamble of the act will see

that Hawkins, whose opinion Blackstone calls in question, is right; and that himself is wrong in pretending that "the statute of Henry VII. does by no means command any opposition to a king de jure, but excuses the obedience paid to a king de facto."

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however, whether the change was quite so precisely referable to CHAP. the time of Henry VII., and whether his policy has not been somewhat over-rated. In certain respects, his reign is undoubt- Henry VII. edly an æra in our history. It began in revolution and a change in the line of descent. It nearly coincides, which is more material, with the commencement of what is termed modern history, as distinguished from the middle ages, and with the memorable events that have led us to make that leading distinction, especially the consolidation of the great European monarchies, among which England took a conspicuous station. But, relatively to the main subject of our inquiry, it is not evident that Henry VII. carried the authority of the crown much beyond the point at which Edward IV. had left it. The strength of the nobility had been grievously impaired by the bloodshed of the civil wars and the attainders that followed them. From this cause, or from the general intimidation, we find, as I have taken notice in another place, that no laws favourable to public liberty, or remedial with respect to the aggressions of power, were enacted, or even, so far as appears, proposed in parliament during the reign of Edward IV., the first, since that of John, to which such a remark can be applied. The commons, who had not always been as humble and abject as smatterers in history are apt to fancy, were by this time much degenerated from the spirit they had displayed under Edward III. and Richard II. Thus the founder of the line of Tudor came, not certainly to an absolute, but a vigorous prerogative, which his cautious, dissembling temper and close attention to business were well calculated to extend.

The laws of Henry VII. have been highly praised by lord Bacon as 66 deep and not vulgar, not made upon the spur of a particular occasion for the present, but out of providence for the future, to make the estate of his people still more and more happy, after the manner of the legislators in ancient and heroical times." But when we consider how very few kings or statesmen have displayed this prospective wisdom and benevolence in legislation,

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CHAP. we may hesitate a little to bestow so rare a praise upon Henry. Like the laws of all other times, his statutes seem to have had no Henry VII. farther aim than to remove some immediate mischief, or to promote some particular end. One, however, has been much celebrated as an instance of his sagacious policy, and as the principal cause of exalting the royal authority upon the ruins of the aristocracy; I mean, the statute of fines, as one passed in the fourth year of his reign is commonly called, which is supposed to have given the power of alienating entailed lands. But both the intention and effect of this seem not to have been justly apprehended.

In the first place, it is remarkable that the statute of Henry VII. is merely a transcript, with very little variation, from one of Richard III., which is actually printed in most editions. It was re-enacted, as we must presume, in order to obviate any doubt, however ill-grounded, which might hang upon the validity of Richard's laws. Thus vanish at once into air the deep policy of Henry VII., and his insidious schemes of leading on a prodigal aristocracy to its ruin. It is surely strange that those who have extolled this sagacious monarch for breaking the fetters of landed property, though many of them were lawyers, should never have observed, that whatever credit might be due for the innovation should redound to the honour of the unfortunate usurper. But Richard, in truth, had no leisure for such long-sighted projects of strengthening a throne for his posterity which he could not preserve for himself. His law, and that of his successor, had a different object in view.

It would be useless to some readers, and perhaps disgusting to others, especially in the very outset of this work, to enter upon the history of the English law as to the power of alienation. But I cannot explain the present subject without mentioning, that, by a statute in the reign of Edward I., commonly called de donis conditionalibus, lands given to a man and the heirs of his body, with remainder to other persons, or reversion to the donor, could

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not be alienated by the possessor for the time being, either from CHAP. his own issue, or from those who were to succeed them. Such lands were also incapable of forfeiture for treason or felony; and Henry VII. more, perhaps, upon this account than from any more enlarged principle, these entails were not viewed with favour by the courts of justice. Several attempts were successfully made to relax their strictness; and finally, in the reign of Edward IV., it was held by the judges in the famous case of Taltarum, that a tenant in tail might, by what is called suffering a common recovery, that is, by means of an imaginary process of law, divest all those who were to come after him of their succession, and become owner of the fee-simple. Such a decision was certainly far beyond the sphere of judicial authority. The legislature, it was probably suspected, would not have consented to infringe a statute which they reckoned the safeguard of their families. The law, however, was laid down by the judges; and in those days the appellant jurisdiction of the house of lords, by means of which the aristocracy might have indignantly reversed the insidious decision, had gone wholly into disuse. It became by degrees a fundamental principle, that an estate in tail can be barred by a common recovery; nor is it possible by any legal subtlety to deprive the tenant of this control over his estate. Schemes were indeed gradually devised, which, to a limited extent, have restrained the power of alienation; but these do not belong to our subject.

The real intention of these statutes of Richard and Henry was not to give the tenant in tail a greater power over his estate; (for it is by no means clear that the words enable him to bar his issue by levying a fine; and when a decision to that effect took place long afterwards (19 H. 8.), it was with such difference of opinion, that it was thought necessary to confirm the interpretation by a new act of parliament;) but rather, by establishing a short term of prescription, to put a check on the suits for recovery of lands, which, after times of so much violence and disturbance, were naturally springing up in the courts. It is the usual policy of

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