it. The conviction of the Duke occurred in the tenth year of the King's reign, upon the most flimsy pretexts, such as the charge that he had declared all the acts of Henry VII to be improperly done. To encompass the conviction, the Chief-Justice held that "if one intend the death of the king it is high treason, for that he is the head of the commonwealth," though no act be done, and the guilty intent to commit the treason, was established by words alone. History records that the execution of this Duke was obtained by the pressure of the royal power, without a pretence of legal cause, and certain it is that no act since the commencement of this reign, when the tyranny of the Star Chamber was inaugurated, to coerce and overrule the peers and members of parliament, so aroused and terrified the populace and made the way for the arbitrary power, which later culminated in the King's divorces and trampling under foot the sacred laws of both church and state, and the terrorizing of the people, to accomplish his arbitrary will, as this execution of the duke of Buckingham, in the name of law.* Sec. 335. "Come into Court." 3 "Scribe. Say, Henry, king of England, come into the court. Scribe. Say, Katherine, queen of England, come into court. Crier. Katherine, queen of England," etc. The practice was founded by the Normans, in England, of having a "crier" to make the various proclamations in court, under the direction of the judges or scribes, and the duty of this officer, as presented in this verse, was to 1 Year-Book, 13 Hen. VIII, fol. 12. 2 Ante idem. Finlason's note, to IV Reeve's Hist. Eng. Law, p. 275. 'Mackintosh's Hist. Eng., vol. II, c. 3. B King Henry VIII, Act II, Scene IV. call the parties litigant, when a case was on for trial, in order that the parties to the cause would be given due notice of the trial and appear in person in court.1 The form of the old judgments, by default, was that the “defendant, being called, comes not, but makes default," etc., and this was an essential part of the decree. So the Poet in the preliminaries leading up to the trial of the divorce suit between Katherine and Henry VIII, followed the practice obtaining then in England. Sec. 336. Pleading cause. "Wol. You have here, lady, (And of your choice,) these reverend fathers; men Of singular integrity and learning, Yea, the elect of the land, who are assembled To plead your cause.' 172 Pleading is the formal mode of alleging or setting up the facts which constitute the support or defence of a party litigant, in a trial in a court of justice. The object of pleading is to secure a clear and distinct statement before the court of the claims of the different litigants, so that the controverted points may be exactly known, examined and decided, to the end that justice may be done. The Cardinal here, insists that the rights of the Queen are being protected according to the formal modes of the procedure obtaining at that period, as she has "men of singular integrity and learning," "who are assembled to plead" her cause. 1 Wharton's Law Lexicon; Bouvier's Law Dictionary. 2 King Henry VIII, Act II, Scene IV. 3 Coke, 48b; Coke, Litt. 303; 7 Bacon's Abr. 457. Notwithstanding all this assurance, the Queen knew that regardless of the justice of her cause, or the power of her pleading, the Judges would decide against her, as they were impanelled to do the King's will, so her course in this trial was a wise one, since a worthy plea is not proof against a prejudiced judge. Hath spoken well, and justly: Therefore, madam, Session, is the time for which a court regularly sits for the transaction of the business which may come before it. Session is the same as a term of court, for it includes the day when the court convenes and ends on the day of the adjournment of court.2 In refusing the application for a continuance, by the Queen, the Cardinals desired to subserve the will of the King and rush the determination of the cause to a conclusion at that session of the court. Sec. 338. Challenging prejudiced judge."Q. Kath. I do believe, Induc'd by potent circumstances, that In asking the right of an attorney for Queen Katherine, in her divorce suit, Cardinal Wolsey, addresses the King: "Wol. I know your majesty has always lov'd her, So dear in heart, not to deny her that A woman of less place might ask by law, Scholars, allow'd freely to argue for her." (Act II, Scene II.) 1 King Henry VIII, Act II, Scene IV. 2 Bouvier's Law Dictionary. In Othello, the Moor of Venice (Act I, Scene II), the following occurs: "Oth. Where will you that I go, To answer this your charge? Bra. To prison: till fit time Of law, and course of direct session, Call thee to answer." From these lines Shakespeare places the arrest of Othello at a time when the court was not in session, but during the vacation of court and Brabantio tells him he must go to prison to await the next session of court. A session of court is when the court convenes for the trial of cases. The court consists of the judge, sheriff, clerk, jury and other court officers and the meetings of the court are called the sessions. You are mine enemy; and make my challenge, Have blown this coal betwixt my lord and me,— Refuse you for my judge."1 Since impartiality is the first duty of a judge, if he has even the slightest interest or bias in a cause to be tried before him, he ought to disqualify himself from sitting as a judge, even without objection of a party interested, for the maxim is, aliquis non debet esse judex in propria causa. If the Cardinal had had due regard to the proprieties of the situation, therefore, when the Queen publicly charged his prejudice and unfairness toward her, he would have refused to sit in judgment on her cause, regardless of the strict legal right of the Queen to challenge him because of such prejudice. But the practice obtain. ing at that period did not provide for such challenge on account of bias of the judge, although it did because of such bias by a juror, and she was perhaps not within the strict letter of the law, in urging this objection to the trial by Cardinal Wolsey. 1 King Henry VIII, Act II, Scene IV. 28 Coke, 118. Urging her objection to Cardinal Wolsey, because of the influence the king had over him, as her judge, Queen Katherine again said: "Again, I do refuse you for my judge; and here, before you all, appeal unto the pope, to bring my whole cause 'fore his holiness, and to be judg'd by him." (Act II, Scene IV.) The Queen had no legal right to challenge the judge to try her, for the exceptions or challenges which go to the jurors, on their preliminary examinations, are not extended to the Judge, but the right claimed by the Queen, because of the bias and prejudice of the Judge against her, is equivalent to that now recognized by law, under what is known as the change of venue statutes, where a party can complain of the bias and prejudice of the Judge and secure an impartial tribunal to try the cause. (Coke, 1' Inst., 294.) Queen Katherine denied the authority of the Cardinal to try the divorce case between herself and the King, as the marriage contract was both a civil contract and a spiritual rite, as viewed by the Church and she did not, according to the Catholic faith, recognize the right of a temporal Court, to sever the holy bonds. That this contention was strongly urged in the courts and many cases justified the contention, see 6 Bacon's Abr., pp. 454, 500. The legislation during the reign of Henry VIII, showed a continuous strife and agitation against the power of the Church of Rome, principally as a means of enabling the King to avoid his different marriages. To cut off Catherine's appeal to Rome, the statute 24 Henry VIII, c. 12, was passed rehabilitating the statutes of Edward I and III and Richard II and Henry IV, against foreign jurisdiction, providing, among other things, that in all matrimonial causes, the same should be heard and finally determined within the King's jurisdiction and authority and not elsewhere, regardless of any appeals, or process from the see of Rome (IV Reeve's Hist. Eng. Law, pp. 314, 315). Prior to this statute, to show the legality of the Queen's appeal, in her divorce suit, to the Pope of Rome, it had been decided only a few years before, in this same reign, that as matrimony was a spiritual rite, where a papal bull of dispensation in a marriage had been pleaded, this would be given effect, and would make an otherwise void marriage legal, (Year-Book, 12 Henry VIII, fol. 6) and this being true, it would naturally follow that the same effect would be given on appeal from the civil courts, a conclusion likewise formerly recognized by a decision preceding the trial of the Queen's divorce suit. (Sandes' case, Year-Book, Hen. III.) True, it had been held that no appeal would lie to Rome as to causes which could be effectually determined in England, (YearBook, Edw. V) but of course this could not apply to a cause such as a marriage contract, for this is purely a spiritual rite and one over which the Church alone had jurisdiction (Year-Book, 20 Hen. VI, 25.) After the King's marriage to Anne Boleyn, and the act of succession, (25 Hen. VIII, c. 22) it was thought prudent by all means to stigmatize the marriage with Catherine as illegal, so a clause was inserted in the statute making all marriages illegal within the Levitical degree and of course this included a marriage to the widow of a brother. But after tiring of the Mother of Elizabeth, the King then had passed a statute, (32 Hen. VIII, c. 38) making all marriages solemnized by the Church, and fol lowed by copulation and birth of children legal, and he soon |