algrave's Essay, contains no instances of
jurisdiction exercised by the council in the reign of John. But they
begin immediately afterwards, in the minority of Henry III.; so that we
have not only the fullest evidence that the council took on itself a
coercive jurisdiction in matters of law at that time, but that it had
not done so before: for the Close Rolls of John are so full as to render
the negative argument satisfactory. It will, of course, be understood
that I take the facts on the authority of Mr. Hardy (Introduction to
Close Rolls, vol. ii.), whose diligence and accuracy are indisputable.
Thus this exercise of judicial power began immediately after the Great
Charter. And yet, if it is to be reconciled with the twenty-ninth
section, it is difficult to perceive in what manner that celebrated
provision for personal liberty against the crown, which has always been
accounted the most precious jewel in the whole coronet, the most
valuable stipulation made at Runnymede, and the most enduring to later
times, could merit the fondness with which it has been regarded. "Non
super eum ibimus, nec super eum mittemus, nisi per legale judicium
parium suorum, vel per legem terrae." If it is alleged that the
jurisdiction of the king's council was the law of the land, the whole
security falls to the ground and leaves the grievance as it stood,
unredressed. Could the judgment of the council have been reckoned, as
Sir P. Palgrave supposes, a "judicium parium suorum," except perhaps in
the case of tenants in chief? The word is commonly understood of that
trial _per pais_ which, in one form or another, is of immemorial
antiquity in our social institutions.

"Though this jurisdiction," he proceeds, "was more frequently called
into action when parliament was sitting, still it was no less inherent
in the council at all other times; and until the middle of the reign of
Edward III. no exception had ever been taken to the form of its
proceedings." He subjoins indeed in a note, "Unless the statute of 5
Edw. III. c. 9, may be considered as an earlier testimony against the
authority of the council. This, however, is by no means clear, and there
is no corresponding petition in the parliament roll from which any
further information could be obtained" (p. 34).

The irresistible conclusion from this passage is, that we have been
wholly mistaken in supposing the commons under Edward III. and his
successors to have resisted an illegal encroachment