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same charter; wherefore it is ordained, that all they that make such suggestions, shall be sent with the same suggestions before the chancellor, treasurer, and his grand council, and that they there find security to pursue their suggestions, and incur the same pains that the other should have had if he were attainted, in case that his suggestions be found evil; and that then process of the law be made against them without being taken and imprisoned, against the form of the said charter and other statutes." The 38th of the same king, c. 9, so far alters this as to substitute damages to the aggrieved, and a fine to government for the lex talionis. But the statute 42d, c. 3. of the same reign, is still more precise : “At the request of the commons by their petitions put forth in this parliament, to eschew the mischiefs and damages done to diverse of his commons by false accusers, which oftentimes have made their accusations more for revenge and sin. gular benefit, than for the profit of the king or of his people, which accused persons, some have been taken and sometimes caused to come before the king's council by writ, and otherwise, upon grievous pain against the law : It is assented and accorded, for the good governance of the commons, that no man be put to answer without presentment before the justices, or matter of record, or by due process and writ original, according to the old law of the land; and if any thing henceforth be done to the contrary, it shall be void in law, and holden for error.” In spite of these laws, the evil recurred; and, therefore,
in the 1st of Richard II. it was provided, that no suit should be ended before any lords, or others of the council, but before the justices only. In the ed of
2d that reign, however, upon another petition from the commons in parliament against the council, it was answered from the throne, that the king thought it improper that he should be restrained to send for his lieges upon a reasonable cause, though he did not mean that they should answer finally about their freehold, but should be remanded for trial as the law required; “provided always that, at the suit of the parties, where the king and his council shall be credibly informed, that because of maintenances, oppressions, or other outrages of any persons in the country, the common law cannot have her course; in such case the council may send for the party upon whom the complaint is made, to make his answer for his contempt; and furthermore, by their good discretion to compel him to find sureties by oath, or in other manner for his good behaviour, and that he shall not by himself, or by any other, commit maintenance, or other thing which may disturb the course of the common law *.” This affords a melancholy picture of the times; but it clearly evinces that all parties were agreed that the interposition of the council was ïrregular, and only justified by the principle of necessity; since, had it been an ordinary court of - justice, such language could never have been used.
Lambard, p. 147. et seq. See also Cott. Abridg. of the Records ; but it is not so fully stated there, vol. i. p. 178.
An evasive answer was, in the 13th, returned by Richard, to a petition of the commons to the same purpose; but in the 16th they carried their point; for it was then enacted that no man should be forced to appear
Lords of the council. Yet, such were the turbulence and barbarism of the times, that in the 4th of the next reign, the commons were obliged to petition against all letters of privy seal, &c. by which the subject was summoned before the council, and they referred to the statutes of Edward III., &c. Henry answered that he would charge his officers to abstain more than formerly from sending for his subjects in this manner; but that it was, nevertheless, not his intention to prevent his officers from sending for his subjects in matters and causes necessary, according to the practice of liis predecessors. His son likewise asserted the same power *. But, though such a prac
* Lambard, p. 149, et seq. Cotton's Abrid. of Records, p. 318. There was first printed in Hawkins' edition of the Statutes, what is denominated a statute by Richard II. in the 13th of his reign, and printed as such, in the late edition of the statutes of the realm, puba lished by command of Geo. III. in pursuance of an address of the House of Commons, (vol. ii. p. 74.) whereby maintenance is prohibited “ upon pain of imprisonment, fine, and ransom, or of being punished in other manner, according as shall be advised by us and our council.” This, however, is no statute, but merely a writ addressed to the sheriff of Kent by the king and his council, and it is said that “ like writs are directed to the several sheriffs throughout England.” It ought not therefore to have been printed amongst the statutes; and in fact only proves the disorderly state of society, and the existence of the irregularity practised by the council, of which the Commons complained this very year, and which they got redressed in the 16th of that reign, or three years
tice was struggled for on great and crying emergencies, it does not follow that the council possessed judicial powers; and these responses shew upon what principle the monarch acted, while it ought not to be forgotten that Richard II. was dethroned for tyranny, and that both Henry IV. and his successor, having been seated on the throne contrary to the usual course of succession, and being exposed on that account, particularly Henry IV, to insurrections for the re-establishment of the li, neal descendant of the crown, found it necessary to resort to this course for their own security.
But it is alleged, that the judicial powers of the council are proved by statutes which authorise its interposition in certain cases. Thus, by the 12th Richard II. c. 11, scandalum magnatum, which had been complained of, and was, according to statute 3d Edward I. and 2d Richard II. cognizable by the common courts of justice, is made punishable by the council, notwithstanding those statutes which are specially referred to. Thus, by 18th Henry IV. c. 7, it was ordained, that, in the event of any riot, assembly, or rout of the people against the law, the justices of the peace, three or two of them at the least, and the sheriff, or under-sheriff of the county where it occurred, should arrest the offenders, and have power to record what they found done in their presence against the law; which record should be the ground of conviction, in the same manner and form as is contained in the statute of forcible entries; but that, in the event of the of. fenders having departed before the arrival of the sheriffs and justices, these magistrates should diligently inquire within a month after the riot, &c. and should hear and determine according to the law of the land; "and if the truth could not be found in the manner as is aforesaid, then, within a month next following, the justices, three or two of them, and the sheriff or under sheriff should certify before the king and his council all the deed and circumstance thereof, which certificate should be of like force as the presentment of twelve: upon which certificate the said trespassers or offenders should be put to answer; and they which should be found guilty, should be punished according to the discretion of the king and his council: and if such trespassers or offenders did traverse the matter so certified, the same certificate and traverse should be sent into the king's bench, there to be tried and determined as the law required." The 81. Henry VI. c. 2. which is particularly referred to by Sir Edward Coke, sets forth, that the king, “ upon certain suggestions and complaints made, as well to him as to the lords of his council, upon di- . vers persons, of great riots, extortions, oppressions, and grievous offences against the peace and laws, had given command as well by writs under his great seal, as by his letters of privy seal to appear before him in his chancery, or before him and his council, at certain days, in the same writs and letters contained, to answer to the premises; which commandments were, and many times had been, disobeyed in con