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.[349] 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."[350] 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.