CHAPTER XXV.

"KING HENRY THE EIGHTH."

Sec. 332.

Privity.

333.

334.

Wasting manors in military preparations.

Buckingham's trial for treason.

335. "Come into Court."

336. Pleading cause.

337. Session of Court.

338. Challenging prejudiced Judge.

Privity.—

Why the devil,

Upon this French going-out, took he upon him,
Without the privity o' the king, to appoint

Who should attend on him?"i

Privity, in the law, is the mutual or successive relation

ship to the same rights of property. There is privity of

'King Henry VIII, Act I, Scene I.

2 Bouvier's Law Dictionary.

contract, which is the relation existing between two contracting parties,' and the privity of estate, which is the relationship existing between those being interested in the same lands, as landlord and tenant."

Buckingham uses the word in the popular, rather than the legal meaning, of consent or concurrence, meaning to say that the Cardinal, in this instance, had acted without the concurrence or consent of the King.

Sec. 333. Wasting manors in military preparations.
"Buck. O, many

Have broke their backs with laying manors on 'em
For this great journey. What did this vanity
But minister communication of

A most poor issue."3

The subject of discussion here is the unprofitable result of the recent war with France and Abergavenny observes that he had kinsmen

66

three at least, that have

By this so sicken'd their estates that never
They shall abound as formerly."

Buckingham replies, with a play on the legal term "manor," meaning that many of the English lords had assumed such military authority and preparations as to squander their estates, or waste their manors in the war with France.

A manor, in English law, is a freehold estate, held by the lord of the manor, who is entitled by immemorial custom, to maintain a tenure between himself and the copyhold tenants, whereby a feudal relation is maintained

1

1 Viner, Abr.; Lawson, Contracts (2d ed.), 276, 305. Tiedeman, R. P. (3d ed.), secs. 138, 157.

The Friar, in describing the causes of the death of Juliet and Romeo, said: "All this I know, and to the marriage, Her nurse is privy." (Act V, Scene III.)

'King Henry VIII, Act I, Scene I.

between them.1 But as sub-infeudation was abolished, in England, by the statute qui emptores, and no manor could arise by operation of law, since that date, it follows that all existing manors must trace their existence to a time preceding the enactment of this statute.3

Sec. 334. Buckingham's trial for treason.-
"1 Gent.
The great duke

Came to the bar; where, to his accusations,
He pleaded still not guilty, and alleg'd
Many sharp reasons to defeat the law.
The king's attorney, on the contrary,
Urg'd on the examinations, proofs, confessions
Of divers witnesses; which the duke desir'd
To him brought, viva voce, to his face:

At which appear'd against him, his surveyor;
Sir Gilbert Peck, his chancellor; and John Court
Confessor to him; with that devil monk,

Hopkins, that made this mischief.

All these accused him strongly; which he fain Would have flung from him, but, indeed, he could not:

And so his peers, upon this evidence,

Have found him guilty of high treason. Much
He spoke, and learnedly, for life: but all
Was either pitied in him, or forgotten.

When he was brought again to the bar,-to hear
His knell rung out, his judgment,-he was stirr'd
With such an agony, he sweat extremely,
And something spoke in choler, ill and hasty:
But he fell to himself again, and, sweetly,
In all the rest show'd a most noble patience."

This narration of the trial of the duke of Buckingham, for treason, is the same as the histories of the trial give

Tiedeman, R. P. (3d ed).

"This statute was passed during the reign of Edw. I. Tiedeman, R. P. supra.

'King Henry VIII, Act II, Scene I.

it.1 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.".

"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.5

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.

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."2

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.

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.