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.[] 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."[x] This unsatisfactory answer proves the arbitrary spirit in which Richard was determined to govern.
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."[y] This was repeated in a short act of the twenty-eighth of his reign;[z] 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.[a] 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 undubitable, 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.[] 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 own.[c]
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 serjeant, 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 cæteris prælatis, magnatibus et proceribus, that directed to one of the judges is only ad tractandum nobiscum et cum cæteris 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.[d]
But from the beginning of Edward III.'s reign it seems that the council and the lords' 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."[e] 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 disburthen 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.
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 Edward III. or Richard II. the lords, by their ascendency, 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.[f]
Those statutes which restrain the king's ordinary council from disturbing men in their freehold rights, or questioning them for misdemeanours, 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.[g] 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.
Some instances occur in the reign of Edward III. where records have been brought into parliament, and annulled with assent of the commons as well as the rest of the legislature.[h] But these were attainders of treason, which it seemed gracious and solemn to reverse in the most authentic manner. Certainly the commons had neither by the nature of our constitution nor the practice of parliament any right of intermeddling in judicature, save where something was required beyond the existing law, or where, as in the statute of treasons, an authority of that kind was particularly reserved to both houses. This is fully acknowledged by themselves in the first year of Henry IV.[] But their influence upon the balance of government became so commanding in a few years afterwards, that they contrived, as has been mentioned already, to have petitions directed to them, rather than to the lords or council, and to transmit them, either with a tacit approbation or in the form of acts, to the upper house. Perhaps this encroachment of the commons may have contributed to the disuse of the lords' jurisdiction, who would rather relinquish their ancient and honourable but laborious function than share it with such bold usurpers.
General character of the government in these ages.
Although the restraining hand of parliament was continually growing more effectual, and the notions of legal right acquiring more precision, from the time of Magna Charta to the civil wars under Henry VI., we may justly say that the general tone of administration was not a little arbitrary. The whole fabric of English liberty rose step by step, through much toil and many sacrifices, each generation adding some new security to the work, and trusting that posterity would perfect the labour as well as enjoy the reward. A time, perhaps, was even then foreseen in the visions of generous hope, by the brave knights of parliament and by the sober sages of justice, when the proudest ministers of the crown should recoil from those barriers which were then daily pushed aside with impunity.