quest of Scotland. The statute alluded to, therefore, had reference to this practice only; and other writers of the greatest authority have so understood it *.

To a writer of such acuteness as Sir Edward Coke, who expressly lays down, that all pretence of prerogative against magna charta is taken away †, and that the king has committed and distributed all his power of judicature to several courts of justice ‡, the reasoning of Lambard must have appeared extremely futile; and he accordingly assumes a different ground-that the alternative in the great charter, of a trial by one's peers, or the law of the land, was intended to reserve the power of the council or court of Star Chamber, then an existing and legal court of justice, which administered the laws in a manner peculiar to itself; and that none of the after statutes applied to that court which is not once named in them §. This oracle of the law, however, has not, in this instance, exhibited his usual correctness and research: For the alternative referred, as Dr. Henry has judiciously

Coke's 4th Inst. p. 72. Blackst. Com. vol. iii. p. 41.-By c. 4. of the 28th Edward I. it is provided, that "no common pleas shall be, from henceforth, holden in the Exchequer, contrary to the form of the great charter;" and then c. 5. proceeds thus: "And on the other party, the king wills that the Chancellor, and the Justices of his Bench, shall follow him; so that he may have, at all times, near unto him, some sages of the law, which be able duly to order all such matters as shall come before the court, at all times, when need shall require."

+ Coke's 2d Inst. p. 36.

Coke's 4th Inst. p. 70, 71.

§ Coke's 4th Inst. c. 5.

conjectured, to trials by ordeal, compurgators, &c. all then in use*; and is clearly established, by the most solemn statutes, to be utterly inconsistent with Coke's idea. But his incorrectness ceases to surprise us, when we reflect, that he himself sat as a judge in the Star Chamber, where he lent the authority of his character for legal knowledge, to strain the power of that court to the utmost; and that it was natural for him to support the proceedings of the judge in his writings †.

As some trials which affected the life of the party might take place by ordeal, &c. so those which struck at the patrimony, liberty, &c. of the subject, were cognizable only by juries. The incorrectness of Coke is proved-1st, By 3d Edward I. c. 6, which provides, that no city, borough, nor town, nor any man, shall be amerced without reasonable cause, &c. and that by his or their peers: 2dly, By magna charta, as confirmed by the same prince in the 25th of his reign, which provides, that no freeman shall be amerced except by the oath of twelve honest and lawful men of the vicinity, or if a peer by his peers; and that no freeman shall be taken and imprisoned, except by a trial of his peers, or by the law of the land. The

Henry, Vol. vi. p. 80. The idea, however, was not peculiar to Coke or Hudson, but had been announced publicly in the Star Chamber by Lord Keeper Egerton. See Hud. p. 4.

+ Sir Edward Coke and Lord Howard, attended with the king's council Sir Francis Bacon and Sir Henry Yelverton, in the case of the Earl of Northumberland and Sir Stephen Proctor, published in open court, that the statute 3d Henry VII. extended not any way to this court. Hud. p. 10. But Coke takes a different view in the Inst.

various enactments to define the admirals, stewards, constables, and marshals powers-which, as we shall afterwards see, were very limited-likewise fully bespeak the rigid attention of our ancestors to national rights.

Those positive enactments of the legislature did not, in semi-barbarous and unsettled times, so completely restrain the power of the council, as to prevent it from occasionally transgressing its boundaries, by arrogating judicial powers; but the instances are rare *, and fresh laws were immediate

Sir Edward Coke says, "This court, in ancient times, sat but rarely, for three causes: First, For that enormous and exorbitant causes which this court dealt withal only, in those days rarely fell out. That is strange, for, if we look even to the statutes, particularly 2d Richard II. c. 6, we shall discover ample proofs of disorders apparently inconsistent with the very being of society. Secondly, This court dealt not with such causes as other courts of ordinary justice might condignly punish, ne dignitas hujus curiæ vilesceret.' Query, What is condign punishment, but what the law ordains? and were not all offences punishable at common law? Thirdly, It very rarely did sit, lest it should draw the king's privy council from matters of state, pro bono publico, to hear private causes, and the principal judges from their ordinary courts of justice.' 4th Inst. c. v. p. 61. This last is a most extraordinary reason, since statute was passed after statute, to prevent the illegal interference of the council with ordinary justice, and since, in the same chapter, we are told that, in the author's time, it sat on Wednesdays and Fridays regularly, during term time. Men in ancient times must have been differently constituted from what they were in this author's days, or are now, if they neglected to avail themselves of an arbitrary institution. But the repeated complaints of, and statutes against, the council, prove that human nature has undergone no change; though, were my Lord Coke's view correct, there would be this inconceivable anomaly, that the council, while it was above taking advantage of its legal rights, exercised its power in a different way-a way that did not promote its authority, while it provoked animadversions: For it could have done all in the one way that it could desire in the other.

ly devised to arrest such an encroachment upon public rights. The fact is, that the benefit of the laws was enjoyed by a small portion only of the people; that the great aristocracy so overawed and threatened, or suborned judges and juries, as to be above ordinary jurisdiction; that, by every act of violence, &c., they left no alternative to the oppressed but to fly for succour to the throne; and that the king, anxious to advance the prerogative, as well as to preserve the public peace, took advantage of disorders to call the violators of the laws before him in council. This, by affecting the great men themselves, induced them instantly to repress it; and the zeal of the Lower House on that head may probably, with some truth, be partly ascribed to its aristocratic constitution For, though the great body of the people were sufficiently poor and unprotected, it does not follow that the great gentry, who were returned to Parliament, were not in a very different condition. In the 5th Edward III. "it was enacted, that no man from thenceforth should be attached by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels, seized into the king's hands, against the form of the great charter and law of the land." In the 15th, a complaint was again made in Parliament against this violation of the great charter; and, in the 25th, the following law was passed: Stat. 5, c. 4. "Whereas it is contained in the great charter of the franchises of England, that none shall

be imprisoned, nor put out of his freehold, nor of his franchises, nor free custom, unless it be by the law of the land, it is accorded, assented, and established, that from henceforth none shall be taken by petition, or suggestion made to our lord the king, or to his council, unless it be by indictment, or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be put out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of law; and if any thing be done against the same, it shall be holden for none." Still the evil continued, and, by the 28th, of the same reign, the great charter was confirmed, and it was particularly provided, c. 3. " that no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law." These suggestions had been still continued, and therefore, by 37, c. 18. of the same king, the following provision was made: "Though that it be contained in the great charter, that no man be taken, nor imprisoned, nor put out of his freehold, without process of the law; nevertheless divers people make false suggestions to the king himself, as well for malice as otherwise, whereof the king is often grieved, and divers of the realm put in great danger and loss against the form of the