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Containing a particular account of the various Institutions
and Usages under the Tudors and their Predecessors, which either were prejudicial to freedom, or are supposed to have been so; together with an examination of Mr. Hume's Statements in his third Appendix, upon which he concludes that the English government under Elizabeth, “ bore some resemblance to that of Turkey.”
The various institutions and usages under the Tudors and their predecessors, which were, at a subsequent period, abolished or discontinued, have been so little understood, or so generally misconceived, that, without presenting a. particular account of them, and examining the statements of Mr. Hume, which are remarkably plausible, and have made a deep impression on the public mind, we should in vain attempt to convey a correct idea of the views of parties during the stormy period we have selected as the subject of our work and the discussion of such topics here, will save us from the necessity of interrupting the narrative with explanations.
The Court of Star Chamber, as holding a conspicuous rank amongst arbitrary institutions, demands our earliest attention,
Anterior to the time of the Tudors, there does Court of
Star-Chan, not occur, either in any publication or record, ber. 80 much as the mention of any Court called the Court of Star-Chamber : And the advocates for its antiquity are obliged to admit, that the few instances referred to by them, in proof of its antiquity, passed under the Council, as it was then called, or, as we should now denominate it, the Privy Council. Indeed Lambard, the first great writer on this subject, states explicitly, that the Star-Chamber was no ordinary court, but the king's council, which, out of the inherent right and duty of the sovereign to award justice, interposed on great occasions, when the common law either afforded no remedy, or an inadequaté one, or when one of the parties was too powerful for the usual course of justice. Some of the other writers upon the subject, as Sir Edward Coke and Hud. son, appear to affect an obscurity on this point, as if the court of Star-Chamber were the council, and yet something different from it; but their disingenuousness does not heighten our opinion of the cause they espouse.
It is the province of the Privy Council to in. quire into grand state offences; but it would appear, that, in turbulent and barbarous times, the same body who detected the guilt, sometimes awarded the punishment; and it might not unfrequently happen, that the accused would prefer to purchase his peace by a pecuniary mulct, to undergoing the hazard of a trial. This, however, in unsettled times, might afford the pretext for
imposing fines or inflicting other punishments; and it was one of the main objects of the Great Charter to secure the national rights from such an invasion.
The great charter provides that no man shall be taken or imprisoned, or deprived of his freehold, outlawed, or tried, except by the judgment of his peers or the law of the land. And Lambard admits, that the subject understood this, as for ever putting a period to the powers of the Council *: but he argues, that “ these words ought to be understood of the restitution then made of the ordinary jurisdiction in common controversies, and not for restraint of the absolute authority; serving only in a few rare and singular cases: And, therefore,” continues he, “ see what followed: some cases daily creeping out of suits, for which no law had been provided, and some misdemeanours also happening from time to time in the distribution of those laws that were already established, it came to pass that many, finding none other helps for the grief, were enforced to sue to the king's person itself for remedy; and he again, knowing himself to be the chief justice and lieutenant of God within his own realm, thought himself bound to deliver judgment and justice, whensoever it should be required at his hands. The which, forasmuch as he could not evenly and with uprightness perform, unless he
* Lambard's Arch. p. 126,
called the adversary party; neither had he, many times, especially in a new and sudden occurrent, any ordinary writ or process whereby to call him, of necessity he was to resort to the kingly and absolute power again, and by his pursuivant or letters, to convent him, and then to proceed to the hearing and determining of the cause as to his princely office did appertain*.” He goes on to state, that this was so far from offending the subject for a long time, that an act was passed in the 28th Edward I. c. 5. providing that the Chancellor and Justices of the King's Bench should follow the king wheresoever he went" that he might have always at hand, men learned and able to advise him in such cases as he admitted to his hearing;” but that, “such are the weakness and imperfection of man, the time was not long, but the subject which so desirously fled to the king and his council for succour, did as has. tily retire and run back to the ordinary seat and judge again.” He then enumerates many statutes to put an end to the judicial powers of the coun
This mode of reasoning is undoubtedly not philosophical. The object of the great charter was to protect the people against the power of the prince when he attempted to stretch the prerogative beyond the laws, and to prevent any mode of trial except by one's peers or the law of the land; but, according to Lambard, this object was not
Lambard, p. 127, et seq. VOL. I.
+ Id. p. 129, et seq.
attained, for in all emergencies, of which the king was the sole judge, the sovereign might, out of his absolute power, determine the matter. What, then, was the security obtained by the great charter? or what absurdity could be equal to that of devi. sing laws to controul the regal power, and yet allowing the king himself to be the sole judge of the law? Whenever he wished to oppress, he would, unquestionably, pronounce the case to be an extraordinary one, which demanded his personal interposition, and from his judgment there could be no appeal. Had this been the state of the law, well might Richard II. say, that the laws were sometimes in his head, sometimes in his mouth. It is utterly impossible that the great men who extorted the charter from the tyrant that so grossly violated the public rights, should have meant any thing so foolish, and this author himself states, that the people understood the charter differently ; whence the conclusion is, either that they were outwitted, or, that the royal power was incapable of limits. But Lambard's allusion to the statute 28th Ed. I. betrays an ignorance of the ancient ju. risprudence of the country truly astonishing; and yet he has been followed in it by Hudson*, the writer upon the star chamber so much bepraised by Lord Mansfield. Anciently the King's Bench was ambulatory, following the king's person in his progress through the kingdom. Under Edward I. himself, it actually sat at Roxburgh, upon his con.
* Hud. in the Col. Jurid. p. 12.