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$Title{History Of Europe During The Middle Ages
Part XXI}
$Subtitle{}
$Author{Hallam, Henry}
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$Subject{council
parliament
law
king's
footnote
clergy
ii
commons
lords
jurisdiction}
$Date{}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XXI

     The solution of this difficulty can only be found in that estrangement
from the common law and the temporal courts which the clergy throughout Europe
were disposed to effect.  In this country their ambition defeated its own
ends; and while they endeavored by privileges and immunities to separate
themselves from the people, they did not perceive that the line of demarcation
thus strongly traced would cut them off from the sympathy of common interests.
Everything which they could call of ecclesiastical cognizance was drawn into
their own courts; while the administration of what they contemned as a
barbarous system, the temporal law of the land, fell into the hands of lay
judges.  But these were men not less subtle, not less ambitious, not less
attached to their profession than themselves; and wielding, as they did in the
courts of Westminster, the delegated sceptre of judicial sovereignty, they
soon began to control the spiritual jurisdiction, and to establish the
inherent supremacy of the common law. From this time an inveterate animosity
subsisted between the two courts, the vestiges of which have only been effaced
by the liberal wisdom of modern ages.  The general love of the common law,
however, with the great weight of its professors in the king's council and in
parliament, kept the clergy in surprising subjection.  None of our kings after
Henry III. were bigots; and the constant tone of the commons serves to show
that the English nation was thoroughly averse to ecclesiastical influence,
whether of their own church or the see of Rome.

     It was natural, therefore, to withstand the interference of the clergy
summoned to parliament in legislation, as much as that of the spiritual court
in temporal jurisdiction.  With the ordinary subjects, indeed, of legislation
they had little concern.  The oppressions of the king's purveyors, or
escheators, or officers of the forests, the abuses or defects of the common
law, the regulations necessary for trading towns and seaports, were matters
that touched them not, and to which their consent was never required.  And, as
they well knew there was no design in summoning their attendance but to obtain
money, it was with great reluctance that they obeyed the royal writ, which was
generally obliged to be enforced by an archiepiscopal mandate. ^r Thus,
instead of an assembly of deputies from an estate of the realm, they became a
synod or convocation.  And it seems probable that in most, if not all,
instances where the clergy are said in the roll of parliament to have
presented their petitions, or are otherwise mentioned as a deliberative body,
we should suppose the convocation alone of the province of Canterbury to be
intended. ^s For that of York seems to have been always considered as
inferior, and even ancillary, to the greater province, voting subsidies, and
even assenting to canons, without deliberation, in compliance with the example
of Canterbury; ^t the convocation of which province consequently assumed the
importance of a national council.  But in either point of view the proceedings
of this ecclesiastical assembly, collateral in a certain sense to parliament,
yet very intimately connected with it, whether sitting by virtue of the
praemunientes clause or otherwise, deserve some notice in a constitutional
history.

[Footnote r: Hody, pp. 396, 403, &c.  In 1314 the clergy protest even against
the recital of the king's writ to the archbishop directing him to summon the
clergy of his province in his letters mandatory, declaring that the English
clergy had not been accustomed, nor ought by right, to be convoked by the
king's authority.  Atterbury, p. 230.]

[Footnote s: Hody, p. 425.  Atterbury, pp. 42, 233.  The latter seems to think
that the clergy of both provinces never actually met in a national council or
house of parliament, under the praemunientes writ, after the reign of Edward
II., though the proctors were duly returned.  But Hody does not go quite so
far, and Atterbury had a particular motive to enhance the influence of the
convocation of Canterbury.]

[Footnote t: Atterbury, p. 46.]

     In the sixth year of Edward III. the proctors of the clergy are specially
mentioned as present at the speech pronounced by the king's commissioner, and
retired, along with the prelates, to consult together upon the business
submitted to their deliberation.  They proposed accordingly a sentence of
excommunication against disturbers of the peace, which was assented to by the
lords and commons.  The clergy are said afterwards to have had leave, as well
as the knights, citizens, and burgesses, to return to their homes; the
prelates and peers continuing with the king. ^u This appearance of the clergy
in full parliament is not, perhaps, so decisively proved by any later record.
But in the eighteenth of the same reign several petitions of the clergy are
granted by the king and his council, entered on the roll of parliament, and
even the statute roll, and in some respects are still part of our law. ^v To
these it seems highly probable that the commons gave no assent; and they may
be reckoned among the other infringements of their legislative rights.  It is
remarkable that in the same parliament the commons, as if apprehensive of what
was in preparation, besought the king that no petition of the clergy might be
granted till he and his council should have considered whether it would turn
to the prejudice of the lords or commons. ^w

[Footnote u: Rot. Parl. vol. ii. pp. 64, 65.]

[Footnote v: 18 E. III. stat. 3.  Rot. Parl. vol. ii. p. 151.  This is the
parliament in which it is very doubtful whether any deputies from cities and
boroughs had a place.  The pretended statutes were therefore every way null;
being falsely imputed to an incomplete parliament.]

[Footnote w: Rot. Parl. vol. ii. p. 151.]

     A series of petitions from the clergy, in the twenty-fifth of Edward
III., had not probably any real assent of the commons, though it is once
mentioned in the enacting words, when they were drawn into a statute. ^x
Indeed the petitions correspond so little with the general sentiment of
hostility towards ecclesiastical privileges manifested by the lower house of
parliament, that they would not easily have obtained its acquiescence. The
convocation of the province of Canterbury presented several petitions in the
fiftieth year of the same king, to which they received an assenting answer;
but they are not found in the statute-book.  This, however, produced the
following remonstrance from the commons at the next parliament: "Also the
commons beseech their lord the king, that no statute nor ordinance be made at
the petition of the clergy, unless by assent of your commons; and that your
commons be not bound by any constitutions which they make for their own profit
without the commons' assent.  For they will not be bound by any of your
statutes or ordinances made without their assent." ^y The king evaded a direct
answer to this petition.  But the province of Canterbury did not the less
present their own grievances to the king in that parliament, and two among the
statutes of the year seem to be founded upon no other authority. ^z

[Footnote x: 25 E. III. stat. 3.]

[Footnote y: 25 E. III. stat. 3, p. 368.  The word they is ambiguous;
Whitelocke (on Parliamentary writ, vol. ii. p. 346) interprets it of the
commons: I should rather suppose it to mean the clergy.]

[Footnote z: 50 E. III. c. 4 & 5.]

     In the first session of Richard II. the prelates and clergy of both
provinces are said to have presented their schedule of petitions which appear
upon the roll, and three of which are the foundation of statutes unassented to
in all probability by the commons. ^a If the clergy of both provinces were
actually present, as is here asserted, it must of course have been as a house
of parliament, and not of convocation.  It rather seems, so far as we can
trust to the phraseology of records, that the clergy sat also in a national
assembly under the king's writ in the second year of the same king. ^b Upon
other occasions during the same reign, where the representatives of the clergy
are alluded to as a deliberative body, sitting at the same time with the
parliament, it is impossible to ascertain its constitution; and, indeed, even
from those already cited we cannot draw any positive inference. ^c But whether
in convocation or in parliament, they certainly formed a legislative council
in ecclesiastical matters by the advice and consent of which alone, without
that of the commons (I can say nothing as to the lords), Edward III. and even
Richard II. enacted laws to bind the laity.  I have mentioned in a different
place a still more conspicuous instance of this assumed prerogative; namely,
the memorable statute against heresy in the second of Henry IV.; which can
hardly be deemed anything else than an infringement of the rights of
parliament, more clearly established at that time than at the accession of
Richard II. Petitions of the commons relative to spiritual matters, however
frequently proposed, in few or no instances obtained the king's assent so as
to pass into statutes, unless approved by the convocation. ^d But, on the
other hand, scarcely any temporal laws appear to have passed by the
concurrence of the clergy.  Two instances only, so far as I know, are on
record: the parliament held in the eleventh of Richard II. is annulled by that
in the twenty-first of his reign, "with the assent of the lords spiritual and
temporal, and the proctors of the clergy, and the commons;" ^e and the statute
entailing the crown on the children of Henry IV. is said to be enacted on the
petition of the prelates, nobles, clergy, and commons. ^f Both these were
stronger exertions of legislative authority than ordinary acts of parliament,
and were very likely to be questioned in succeeding times.

[Footnote a: Rot. Parl. vol. iii. p. 25.  A nostre tres excellent seigneur le
roy supplient humblement ses devotes oratours, les prelats et la clergie de la
province de Canterbirs et d'Everwyk.  Stat. 1 Richard II. c. 13, 14, 15.  But
see Hody, p. 425; Atterbury, p. 329.]

[Footnote b: Rot. Parl. vol. iii. p. 37.]

[Footnote c: It might be argued, from a passage in the parliament roll of 21
R. II., that the clergy of both provinces were not only present, but that they
were accounted an essential part of parliament in temporal matters, which is
contrary to the whole tenor of our laws.  The commons are there said to have
prayed that "whereas many judgments and ordinances formerly made in parliament
had been annulled because the estate of clergy had not been present thereat,
the prelates and clergy might make a proxy with sufficient power to consent in
their name to all things done in this parliament." Whereupon the spiritual
lords agreed to intrust their powers to Sir Thomas Percy, and gave him a
procuration commencing in the following words: "Nos Thomas Cantuar' et
Robertus Ebor' archiepiscopi, ac praelati et clerus utriusque provinciae
Cantuar' et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes
jus interessendi in singulis parliamentis domini nostri regis et regni Angliae
pro tempore celebrandis, necnon tractandi et expediendi in eisdem quantum ad
singula in instanti parliamento pro statu et honore domini nostri regis,
necnon regaliae suae, ac quiete, pace, et tranquillitate regni judicialiter
justificandis, venerabili viro domino Thomae de Percy militi, nostram plenarie
committimus potestatem." It may be perceived by these expressions, and more
unequivocally by the nature of the case, that it was the judicial power of
parliament which the spiritual lords delegated to their proxy.  Many
impeachments for capital offences were coming on, at which, by their canons,
the bishops could not assist.  But it can never be conceived that the inferior
clergy had any share in this high judicature.  And, upon looking attentively
at the words above printed in italics, it will be evident that the spiritual
lords holding by barony are the only persons designated; whatever may have
been meant by the singular phrase, as applied to them, clerus utriusque
provinciae.  Rot. Parl. vol. iii. p. 348.]

[Footnote d: Atterbury, p. 346.]

[Footnote e: 21 R. II. c. 12.  Burnet's Hist. of Reformation (vol. ii. p. 47)
led me to this act, which I had overlooked.]

[Footnote f: Rot. Parl. vol. iii. p. 582.  Atterbury, p. 61.]

     The supreme judicature, which had been exercised by the king's court, was
diverted, about the reign of John, into three channels; the tribunals of
King's Bench, Common Pleas, and the Exchequer. ^g These became the regular
fountains of justice, which soon almost absorbed the provincial jurisdiction
of the sheriff and lord of manor.  But the original institution, having been
designed for ends of state, police, and revenue, full as much as for the
determination of private suits, still preserved the most eminent parts of its
authority.  For the king's ordinary or privy council, which is the usual style
from the reign of Edward I., seems to have been no other than the king's court
(curia regis) of older times, being composed of the same persons, and having,
in a principal degree, the same subjects of deliberation.  It consisted of the
chief ministers; as the chancellor, treasurer, lord steward, lord admiral,
lord marshal, the keeper of the privy seal, the chamberlain, treasurer, and
comptroller of the household, the chancellor of the exchequer, the master of
the wardrobe; and of the judges, king's sergeant, and attorney-general, the
master of the rolls, and justices in eyre, who at that time were not the same
as the judges at Westminster.  When all these were called together, it was a
full council; but where the business was of a more contracted nature, those
only who were fittest to advise were summoned; the chancellor and judges for
matters of law; the officers of state for what concerned the revenue or
household. ^h

[Footnote g: The ensuing sketch of the jurisdiction exercised by the king's
council has been chiefly derived from Sir Matthew Hale's Treatise of the
jurisdiction of the Lords' House in Parliament, published by Mr. Hargrave.]

[Footnote h: The words "privy council" are said not to be used till after the
reign of Henry VI.; the former style was "ordinary" or "continual council."
But a distinction had always been made, according to the nature of the
business; the great officers of state, or, as we might now say, the ministers,
had no occasion for the presence of judges or any lawyers in the secret
councils of the crown.  They become, therefore, a council of government,
though always members of the concilium ordinarium; and, in the former
capacity, began to keep formal records of their proceedings.  The acts of this
council, though, as I have just said, it bore as yet no distinguishing name,
are extant from the year 1386, and for seventy years afterwards are known
through the valuable publication of Sir Harris Nicolas.]

     The business of this council, out of parliament, may be reduced to two
heads; its deliberative office as a council of advice, and its decisive power
of jurisdiction.  With respect to the first, it obviously comprehended all
subjects of political deliberation, which were usually referred to it by the
king: this being in fact the administration or governing council of state, the
distinction of a cabinet being introduced in comparatively modern times.  But
there were likewise a vast number of petitions continually presented to the
council, upon which they proceeded no further than to sort, as it were, and
forward them by indorsement to the proper courts, or advise the suitor what
remedy he had to seek.  Thus some petitions are answered, "this cannot be done
without a new law;" some were turned over to the regular court, as the
chancery or king's bench; some of greater moment were endorsed to be heard
"before the great council;" some, concerning the king's interest, were
referred to the chancery, or select persons of the council.

     The coercive authority exercised by this standing council of the king was
far more important.  It may be divided into acts, legislative and judicial.
As for the first, many ordinances were made in council; sometimes upon request
of the commons in parliament, who felt themselves better qualified to state a
grievance than a remedy; sometimes without any pretence, unless the usage of
government, in the infancy of our constitution, may be thought to afford one.
These were always of a temporary or partial nature, and were considered as
regulations not sufficiently important to demand a new statute.  Thus, in the
second year of Richard II., the council, after hearing read the statute-roll
of an act recently passed, confirming a criminal jurisdiction in certain cases
upon justices of the peace, declared that the intention of parliament, though
not clearly expressed therein, had been to extend that jurisdiction to certain
other cases omitted, which accordingly they cause to be inserted in the
commissions made to these justices under the great seal. ^i But they
frequently so much exceeded what the growing spirit of public liberty would
permit, that it gave rise to complaint in parliament.  The commons petition in
13 R. II. that "neither the chancellor nor the king's council, after the close
of parliament, may make any ordinance against the common law, or the ancient
customs of the land, or the statutes made heretofore or to be made in this
parliament; but that the common law have its course for all the people, and no
judgment be rendered without due legal process." The king answers, "Let it be
done as has been usual heretofore, saving the prerogative; and if any one is
aggrieved, let him show it specially, and right shall be done him." ^j This
unsatisfactory answer proves the arbitrary spirit in which Richard was
determined to govern.

[Footnote i: Rot. Parl. vol. iii. p. 84.]

[Footnote j: Ibid. p. 266.]

     The judicial power of the council was in some instances founded upon
particular acts of parliament, giving it power to hear and determine certain
causes.  Many petitions likewise were referred to it from parliament,
especially where they were left unanswered by reason of a dissolution.  But,
independently of this delegated authority, it is certain that the king's
council did anciently exercise, as well out of parliament as in it, a very
great jurisdiction, both in causes criminal and civil. Some, however, have
contended, that whatever they did in this respect was illegal, and an
encroachment upon the common law and Magna Charta.  And be the common law what
it may, it seems an indisputable violation of the charter in its most
admirable and essential article, to drag men in questions of their freehold or
liberty before a tribunal which neither granted them a trial by their peers
nor always respected the law of the land.  Against this usurpation the
patriots of those times never ceased to lift their voices.  A statute of the
fifth year of Edward III. provides that no man shall be attached, nor his
property seized into the king's hands, against the form of the great charter
and the law of the land.  In the twenty-fifth of the same king it was enacted,
that "none shall be taken by petition or suggestion to the king or his
council, unless it be by indictment or presentment, or by writ original at the
common law, nor shall be put out of his franchise or freehold, unless he be
duly put to answer, and forejudged of the same by due course of law." ^k This
was repeated in a short act of the twenty-eighth of his reign; ^l but both, in
all probability, were treated with neglect; for another was passed some years
afterwards, providing that no man shall be put to answer without presentment
before justices, or matter of record, or by due process and writ original
according to the old law of the land.  The answer to the petition whereon this
statute is grounded, in the parliament roll, expressly declares this to be an
article of the great charter. ^m Nothing, however, would prevail on the
council to surrender so eminent a power, and, though usurped, yet of so long a
continuance.  Cases of arbitrary imprisonment frequently occurred, and were
remonstrated against by the commons.  The right of every freeman in that
cardinal point was as indubitable, legally speaking, as at this day; but the
courts of law were afraid to exercise their remedial functions in defiance of
so powerful a tribunal.  After the accession of the Lancastrian family, these,
like other grievances, became rather less frequent, but the commons
remonstrate several times, even in the minority of Henry VI., against the
council's interference in matters cognizable at common law. ^n In these later
times the civil jurisdiction of the council was principally exercised in
conjunction with the chancery, and accordingly they are generally named
together in the complaint.  The chancellor having the great seal in his
custody, the council usually borrowed its process from his court.  This was
returnable into chancery even where the business was depending before the
council.  Nor were the two jurisdictions less intimately allied in their
character, each being of an equitable nature; and equity, as then practised,
being little else than innovation and encroachment on the course of law.  This
part, long since the most important of the chancellor's judicial function,
cannot be traced beyond the time of Richard II., when, the practice of
feoffments to uses having been introduced, without any legal remedy to secure
the cestui que use, or usufructuary, against his feoffees, the court of
chancery undertook to enforce this species of contract by process of its won.
^o

[Footnote k: 25 E. III. stat. 5, c. 4.  Probably this fifth statute of the
25th of Edward III. is the most extensively beneficial act in the whole body
of our laws.  It established certainty in treasons, regulated purveyance,
prohibited arbitrary imprisonment and the determination of pleas of freehold
before the council, took away the compulsory finding of men-at-arms and other
troops, confirmed the reasonable aid of the king's tenants fixed by 3 E. I.,
and provided that the king's protection should not hinder civil process or
execution.]

[Footnote l: 28 E. III. c. 3.]

[Footnote m: 42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295.  It is not
surprising that the king's council should have persisted in these
transgressions of their lawful authority, when we find a similar jurisdiction
usurped by the officers of inferior persons.  Complaint is made in the 18th of
Richard II. that men were compelled to answer before the council of divers
lords and ladies, for their freeholds and other matters cognizable at common
law, and a remedy for this abuse is given by petition in chancery, stat.  15
R. II. c. 12.  This act is confirmed with a penalty on its contraveners the
next year, 16 R. II. c. 2.  The private jails which some lords were permitted
by law to possess, and for which there was always a provision in their
castles, enabled them to render this oppressive jurisdiction effectual.]

[Footnote n: Rot. Parl.  17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI.
vol. iv. p. 180; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15 H. VI.
p. 501.  To one of these (10 H. VI.), "that none should be put to answer for
his freehold in parliament, nor before any court or council where such things
are not cognizable by the law of the land," the king gave a denial.  As it was
less usual to refuse promises of this kind than to forget them afterwards, I
do not understand the motive of this.]

[Footnote o: Hale's Jurisdiction of Lords' House, p. 46.  Coke, 2 Inst. p.
553.  The last author places this a little later.  There is a petition of the
commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many
grantees and feoffees in trust for their grantors and feoffers alienate or
charge the tenements granted, in which case there is no remedy unless one is
ordered by parliament, that the king and lords would provide a remedy. This
petition is referred to the king's council to advise of a remedy against the
ensuing parliament.  It may perhaps be inferred from hence that the writ of
subpoena out of chancery had not yet been applied to protect the cestui que
use.  But it is equally possible that the commons, being disinclined to what
they would deem an illegal innovation, were endeavoring to reduce these
fiduciary estates within the pale of the common law, as was afterwards done by
the statute of uses.  [Note XXV.]]

     Such was the nature of the king's ordinary council in itself, as the
organ of his executive sovereignty, and such the jurisdiction which it
habitually exercised.  But it is also to be considered in its relation to the
parliament, during whose session, either singly or in conjunction with the
lords' house, it was particularly conspicuous.  The great officers of state,
whether peers or not, the judges, the king's sergeant, and attorney-general,
were, from the earliest times, as the latter still continue to be, summoned by
special writs to the upper house.  But while the writ of a peer runs ad
tractandum nobiscum et cum caeteris praelatis, magnatibus et proceribus, that
directed to one of the judges is only ad tractandum nobiscum et cum caeteris
de consilio nostro; and the seats of the latter are upon the woolsacks at one
extremity of the house.

     In the reigns of Edward I. and II. the council appear to have been the
regular advisers of the king in passing laws to which the houses of parliament
had assented.  The preambles of most statutes during this period express their
concurrence.  Thus the statute Westm. I. is said to be the act of the king by
his council, and by the assent of archbishops, bishops, abbots, priors, earls,
barons, and all the commonalty of the realm being hither summoned.  The
statute of escheators, 29 E. I., is said to be agreed by the council,
enumerating their names, all whom appear to be judges or public officers.
Still more striking conclusions are to be drawn from the petitions addressed
to the council by both houses of parliament.  In the eighth of Edward II.
there are four petitions from the commons to the king and his council, one
from the lords alone, and one in which both appear to have joined.  Later
parliaments of the same reign present us with several more instances of the
like nature.  Thus in 18 E. II. a petition begins, "To our lord the king, and
to his council, the archbishops, bishops, prelates, earls, barons, and others
of the commonalty of England, show," &c. ^p

[Footnote p: Rot. Parl. vol. i. p. 416.]

     But from the beginning of Edward III.'s reign it seems that the council
and the lord's house in parliament were often blended together into one
assembly.  This was denominated the great council, being the lords spiritual
and temporal, with the king's ordinary council annexed to them, as a council
within a council.  And even in much earlier times the lords, as hereditary
counsellors, were, either whenever they thought fit to attend, or on special
summonses by the king (it is hard to say which), assistant members of this
council, both for advice and for jurisdiction. This double capacity of the
peerage, as members of the parliament or legislative assembly and of the
deliberative and judicial council, throws a very great obscurity over the
subject.  However, we find that private petitions for redress were, even under
Edward I., presented to the lords in parliament as much as to the ordinary
council.  The parliament was considered a high court of justice, where relief
was to be given in cases where the course of law was obstructed, as well as
where it was defective. Hence the intermission of parliaments was looked upon
as a delay of justice, and their annual meeting is demanded upon that ground.
"The king," says Fleta, "has his court in his council, in his parliaments, in
the presence of bishops, earls, barons, lords, and other wise men, where the
doubtful cases of judgments are resolved, and new remedies are provided
against new injuries, and justice is rendered to every man according to his
desert." ^q In the third year of Edward II. receivers of petitions began to be
appointed at the opening of every parliament, who usually transmitted them to
the ordinary, but in some instances to the great council.  These receivers
were commonly three for England, and three for Ireland, Wales, Gascony, and
other foreign dominions.  There were likewise two corresponding classes of
auditors or triers of petitions.  These consisted partly of bishops or peers,
partly of judges and other members of the council; and they seem to have been
instituted in order to disburden the council by giving answers to some
petitions.  But about the middle of Edward III.'s time they ceased to act
juridically in this respect, and confined themselves to transmitting petitions
to the lords of the council.

[Footnote q: L. ii. c. 2.]

     The great council, according to the definition we have given, consisting
of the lords spiritual and temporal, in conjunction with the ordinary council,
or, in other words, of all who were severally summoned to parliament,
exercised a considerable jurisdiction, as well civil as criminal.  In this
jurisdiction it is the opinion of Sir M. Hale that the council, though not
peers, had right of suffrage; an opinion very probable, when we recollect that
the council by themselves, both in and out of parliament, possessed in fact a
judicial authority little inferior; and that the king's delegated sovereignty
in the administration of justice, rather than any intrinsic right of the
peerage, is the foundation on which the judicature of the lords must be
supported.  But in the time of Richard III. or Richard II. the lords, by their
ascendancy, threw the judges and rest of the council into shade, and took the
decisive jurisdiction entirely to themselves, making use of their former
colleagues but as assistants and advisers, as they still continue to be held
in all the judicial proceedings of that house. ^r

[Footnote r: [Note XXVI.]]

     Those statutes which restrain the king's ordinary council from disturbing
men in their freehold rights, or questioning them for misdemeanors, have an
equal application to the lords' house in parliament, though we do not
frequently meet with complaints of the encroachments made by that assembly.
There was, however, one class of cases tacitly excluded from the operation of
those acts, in which the coercive jurisdiction of this high tribunal had great
convenience; namely, where the ordinary course of justice was so much
obstructed by the defending party, through riots, combinations of maintenance,
or overawing influence, that no inferior court would find its process obeyed.
Those ages, disfigured in their quietest season by rapine and oppression,
afforded no small number of cases that called for this interposition of a
paramount authority. ^s Another indubitable branch of this jurisdiction was in
writs of error; but it may be observed that their determination was very
frequently left to a select committee of peers and councillors.  These, too,
cease almost entirely with Henry IV.; and were scarcely revived till the
accession of James I.

[Footnote s: This is remarkably expressed in one of the articles agreed in
parliament 8 H. VI. for the regulation of the council.  "Item, that alle the
billes that comprehend matters terminable atte the common lawe shall be
remitted ther to be determined; but if so be that the discresion of the
counseill fele to grete myght on that o syde, and unmyght on that other, or
elles other cause resonable yat shal move him." Rot. Parl. vol. iv. p. 343.
Mr. Bruce has well observed of the articles agreed upon in 8 Hen. VI., or
rather of "those in 5 Hen. VI., which were nearly the same, that in theory
nothing could be more excellent.  In turbulent times, it is scarcely necessary
to remark, great men were too apt to weigh out justice for themselves, and
with no great nicety; a court, therefore, to which the people might fly for
relief against powerful oppressors was most especially needful.  Law charges
also were considerable; and this, 'the poor man's court, in which he might
have right without paying any money' (Sir T. Smith's Commonwealth, book iii.
ch. 7), was an institution apparently calculated to be of unquestionable
utility.  It was the comprehensiveness of the last clause - the 'other cause
resonable' - which was its ruin." Archaeologia, vol. xxv. p. 348.  The statute
31 Hen. VI. c. 2, which is not printed in Ruffhead's edition, is very
important, as giving a legal authority to the council, by writs under the
great seal, and by writs of proclamation to the sheriffs, on parties making
default, to compel the attendance of any persons complained of for "great
riots, extortions, oppressions, and grievous offences," under heavy penalties;
in case of a peer, "the loss of his estate, and name of lord, and his place in
parliament," and all his lands for the term of his life; and fine at
discretion in the case of other persons.  A proviso is added that no matter
determinable by the law of the realm should be determined in other form than
after the course of law in the king's courts.  Sir Francis Palgrave (Essay on
the King's Council, p. 84) observes that this proviso "would in no way
interfere with the effective jurisdiction of the council, inasmuch as it could
always be alleged in the bills which were preferred before it that the
oppressive and grievous offences of which they complained were not
determinable by the ordinary course of the common law." P. 86.  But this takes
the word "determinable" to mean in fact; whereas I apprehend that the proviso
must be understood to mean cases legally determinable; the words, I think,
will bear no other construction.  But as all the offences enumerated were
indictable, we must either hold the proviso to be utterly inconsistent with
the rest of the statute, or suppose that the words "other form," were intended
to prohibit the irregular process usual with the council; secret examination
of witnesses, torture, neglect of technical formality in specifying charges,
punishments not according to the course of law, and other violations of fair
and free trial, which constituted the greatest grievance in the proceedings of
the council.]