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dicative of the growing strength of the Parliament that the contest between John of Gaunt and his enemies for the control of affairs in England during the closing years of the reign of Edward III was fought out in the halls of the House of Commons rather than upon the battlefield.
The history of the reign of Richard II is an alternate triumph of despotism and constitutional government, ending with the vindication of the right of Parliament to depose an unworthy King and to elect in his stead a more worthy successor.
The influence of Roman law in England and the development of Equity Jurisprudence.—The principal event in the history of the private law of England during the twelfth and thirteenth centuries was the long contest between the civil and canon law principles on the one side and the common law principles on the other. The Constitutions of Clarendon and the Assize of Merton left the victory with the latter, upon which, however, many civil law principles had been engrafted. The succeeding rigidity of the common law is remedied in the fourteenth century by the introduction of the new and supplemental system of equity jurisprudence.
$33. Contest for the throne of England between the houses of York and Lancaster.—The House of Lancaster had come to the throne at the close of the Fourteenth century with a title whose validity rested upon the legality of the election of Henry IV by the House of Commons. Henry IV being a son of John of Gaunt, fourth son of Edward III, could not be considered as the lieir to the throne if the crown was to descend strictly by those rules of hereditary descent which the feudal law applied to the descent of real property. If such rules were to govern, the throne must have passed, after the deposition and death of Richard II, to Edward Mortimer, the infant son of Roger Mortimer, Earl of March, son of Phillippa, who was daughter and heiress of Lionel of Clarence, third son of Edward III.
The whole question, from a legal standpoint, as to the respective rights of the claimants of the houses of York and Lancaster to the English throne, therefore, turned upon this question as to whether the throne of England was strictly
hereditary, or whether, upon extraordinary occasion, the English Parliament had the right to vary such rules by the election of the most worthy member of the royal family. It was a question in which there was much difficulty in reaching any definite decision, although the historical arguments lay entirely on the side of the House of Lancaster. It was a question too difficult to be settled by law, a question whose final decision in the fifteenth century could only be decided by the sword. The War of the Roses, indeed, could not finally settle the real question. The varying fortunes of war placed first one faction and then the other in power, and even at its close the legal point in controversy could hardly be said to have been determined. It remained an open question in the English Constitution down to the time of the accession of the House of Hanover.
It was two generations after the accession of Henry IV before the adverse claims of the descendants of Lionel first began to manifest themselves. At the time of the deposition of Richard II the heir of the House of Mortimer was an infant, and among his followers there were none to make headway against the wary cunning of the Lancasterian King. The brilliant foreign victories of Henry V made him the idol of the Englislı people, and it seemed as if the House of Lancaster was at last firmly established on the English throne, but the aspect of affairs suddenly changed in the reign of Henry VI. Coming to the throne when a few months of age, displaying throughout his life a weakness of intellect, which at times reached the point of absolute insanity, rendered unpopular by the acts of his ministers, by his marriage, by the loss during his reign of the foreign conquests of his father, the position of Henry VI after thirty years of his reign had been completed, was such as to invite
his power. The claim to the throne as the representative of the claims of the llouse of Lionel had now passed to Richard, Duke of York, who, on the male side was also descended from the fifth son of Edward III. At first the Duke of York only advanced bis claim to be considered as the heir of Henry VI, but upon the unexpected birth of a son to the King he advanced the bolder claim to the immediate possession of the Crown, even as against Henry himself.
It would be out of place to speak in detail of the kaleidoscopie changes of fortune of the thirty years through which the War of the Roses extended. The defeat and death of Richard, the first claimant of the House of York, was succeeded by a series of Yorkist victories, which placed Edward IV, son of Richard, upon the English throne, and sent Henry VI to prison, and his wife and son into exile. The temporary change of fortune caused by the desertion of Edward's greatest supporter, Warwick, the king maker, was soon followed by greater successes for the House of York and the murder of Henry VI and of his son. Edward IV continued, thereafter, throughout his life upon the throne of England without interruption, and it now seemed as if the House of York had finally succeeded to the throne, but as in the case of the House of Lancaster the appearance proved deceptive. The unpopularity of Richard III, who was supposed to have murdered his nephew Edward V in order to obtain the throne, at length aroused new opposition and Henry Richmond took the field against him as the last representative of the House of Lancaster.
Few claimants for the English throne ever possessed a more remote connection with the Royal family. He was descended, on the male side from a long line of Welsh gentlemen of no very great prominence but, into which family, had been infused by marriage the claim to the throne, derived from John of Gaunt, through his late and rather illegitimate marriage. It was, however, owing more to the unpopularity of Richard rather than the strength upon which his claim rested, which brought him the support which enabled him to win his decisive victory at the battle of Bosworth, the last battle of the Civil war.
$ 34. The loss of power by the House of Lords.—The details of the struggle of the War of the Roses are of mere passing interest to the student of English Constitutional History; nor was the result of the war, so far as it effected the fortunes of the two houses themselves, of any very vital importance to England. The important result of the War of the Roses was the destruction of the greater part of English nobility. Death on the field of battle, on the block and in banishment had so thinned the ranks of the body, which in an early age had more than once proved too strong for the royal power itself, that it was a mere shadow of the House of Lords which was left to meet Ilenry VII after his coronation.
From the close of the War of the Roses there were two great parties, instead of three, struggling for the controlling power in the government of England. The nobles had received a blow from which they never recovered and the contest for supremacy was left to the King and the House of Commons. The immediate effect was to greatly increase the power of the King. In the contest against the King the leading place had previously been taken by the House of Lords. The House of Commons, on such occasions, had generally taken but a secondary part, merely supporting the Lords in their resistance: The nobility had now become no longer able to make headway against the King, and the Commons were not yet ready to take the initiative. The result was that the Kings of the House of York and Tudor were the most despotic in English bistory. When in the seventeenth century the absolute power of the King was once more resisted, it was no longer the House of Lords but the House of Commons which was able to claim for itself a share in the government of England. The temporary eclipse of English liberty becomes thus merely the prelude to its final establishment on a more firm and permanent basis.
$ 35. The Tudor dynasty.—The Tudor period is a little more than co-extensive with the sixteenth century, a century which has been well described as an age remarkable for its material prosperity, its intellectual and religious activity, and its political retrogression. The Tudor period saw the discovery of America, the beginning of English exploration and foreign traffic, the revival of learning, and the reformation. The general, religious, and commercial history of this period is full and interesting. Its constitutional history is meager.
It was a period in which the King was the state and when his power was generally well nigh absolute. There was, however, one prominent characteristic of the Tudor Kings, which was later to prove of the greatest benefit to the kingdom, this characteristic was their great reverence for all the forms of the law. There was no attempt on their part, such as was witnessed during the Bourbon rule in France, to break down the old, estallished instruments of Government. The tyranny of the Tudor Kings was nearly always in accordance with the forms of the law; Parliament and the courts of law were retained in their entirety; but Parliament and the judges were compelled to carry out the King's will. Henry VIII, especially, seemed anxious to shelter himself from the responsibility of his acts behind the breastwork of Parliamentary sanction. The gain for the present to the people was perhaps slight, the advantage for the future was immeasurable. The old institutions of England remained intact, with their prestige perhaps even strengthened by the important work which they were compelled to do for the King. The tyranny of the sixteenth century in England was one of individuals, not of institutions. A tyranny of an 'individual may pass away with the death of the individual; but il tyranny of institutions can generally only be removed by a revolution. Such proved to be the case in England. The House of Commons constantly increased in strength and influence during the Tudor period. “There cannot be a stronger proof of the increased weight of the Commons during these reigns than the anxiety of the court to obtain favorable elections. Many ancient boroughs, undoubtedly, have at no period possessed sufficient importance to deserve the elective franchise on the score of their riches or population; and it is most likely that some temporary interest or partiality, which cannot now be traced, first caused a writ to be addressed to them. But, there is much reason to conclude that the counselors of Edward VI, in erecting new boroughs, acted upon a deliberate plan of strengthening their influence among the Commons. Twenty-two boroughs were created or restored in this short reign. There is reason to believe that the court, or rather the imperial ambassador, did homage to the power of the Commons, by present of money, in order to procure their support of the unpopular marriage with Philip; and if Noailles, the ambassador of Henry II, did not make use of the same means to thwart the grants cf subsidy and other measures of the administration, he was at least very active in promising the support of France, and animating the patriotism of those unknown leaders of that