of power in the
king's ordinary council, while it had in truth been exercising an
ancient jurisdiction, never restrained by law and never complained of by
the subject. This would reverse our constitutional theory to no small
degree, and affect so much the spirit of my own pages, that I cannot
suffer it to pass, coming on an authority so respectable, without some
comment. But why is it asserted that this jurisdiction was inherent in
the council? Why are we to interpret Magna Charta otherwise than
according to the natural meaning of the words and the concurrent voice
of parliament? The silence of the commons in parliament under Edward II.
as to this grievance will hardly prove that it was not felt, when we
consider how few petitions of a public nature, during that reign, are on
the rolls. But it may be admitted that they were not so strenuous in
demanding redress, because they were of comparatively recent origin as
an estate of parliament, as they became in the next long reign, the most
important, perhaps, in our early constitutional history.

It is doubted by Sir F. Palgrave whether the statute of 5 Edw. III. c.
9, can be considered as a testimony against the authority of the
council. It is, however, very natural so to interpret it, when we look
at the subsequent statutes and petitions of the commons, directed for
more than a century to the same object. "No man shall be taken," says
lord Coke (2 Inst. 46), "that is, restrained of liberty, by petition or
suggestion to the king or to his council, unless it be by indictment or
presentment of good and lawful men, where such deeds be done. This
branch and divers other parts of this act have been wholly explained by
divers acts of parliament, &c., quoted in the margent." He then gives
the titles of six statutes, the first being this of 5 Edw. III. c. 9.
But let us suppose that the petition of the commons in 25 Edw. III.
demanded an innovation in law, as it certainly did in long-established
usage. And let us admit what is justly pointed out by Sir F. Palgrave,
that the king's first answer to their petition is not commensurate to
its request, and reserves, though it is not quite easy to see what, some
part of its extraordinary jurisdiction.[472] Still the statute itself,
enacted on a similar petition in a subsequent parliament, is explicit
that "none shall be taken by petition or suggestion to the king or his
council, unless it be by indictment or presentment" (in a criminal
ch