Pars. Sec. ch. 9.) In the reign of Charles I, severe fines were levied upon individuals, for disobedience to proclamations which were grounded upon the most capricious and fanciful causes, (See some remarkable instances of this, in D'Israeli's Curiosities of Literature, from a Manuscript of D'Ewes. Stratford's Lett. and Disp. 2. p. 142. 2 Rush. p. 28, 144, 289.) Clarendon relates, that under the government of that King, the same individuals in the capacity of Privy Counsellors sent forth proclamations, and afterwards in the character of members of the Star Chamber, in another room, punished the infraction of them. It is to the honor of Sir E. Coke, that he asserted an opinion, notwithstanding the opposition he experienced, on that occasion, from the disgraceful demeanour of the Lord Chancellor, and Lord Privy Seal, that the King could not change any part of the Common Law, or create any offence by his proclamation, and that there never was an indictment, which concluded "contra Regiam proclamationem." It is upon the authority of Fortescue, that his argument was principally founded, and he further mentions, that it was resolved in the same term, at a conference held between the Judges and the Privy Council, that the King's Proclamation is neither Statute Law, Common Law, or Custom, the three parts of the Law of England; that no offence could be created by it; and that the King has no prerogative, but that which the Law of the Land allows him. (12 Rep. Case of Proclamations, 3 Lodge's Illustrations 364.) It is not surprising therefore, that an attempt in modern times to justify upon constitutional principles, an embargo laid on the ports, in time of peace, under the colour of a Royal Proclamation, should have been animadverted upon, with indignant eloquence in Parliament, or that the Legislature should have pronounced it contrary to law (Parl. Hist. A. D. 1766. Hargr. Pref. to Hale de Jure Maris.) A legislative power has sometimes been assumed, not only by the Sovereign, but also by the Houses of Parliament. A multitude of Treatises have been written upon the legality of the ordinance for the Militia, which was enacted during the great rebellion: Whitelocke details a celebrated debate upon the subject in his memorials, and at the Treaty of Uxbridge, he challenged Lord Clarendon, to a personal argument on the question. A House of Commons in the Reign of Charles II, promulgated their opinion, that a particular branch of the laws ought not to be put in execution: upon which proceeding Burnet observes, that it was thought to be a great invasion of the Legislature, and was to act like dictators in the State. Our judicial history exhibits several memorable instances, wherein an attempt by the House of Lords, to arrogate a power, with which the Constitution did not invest them, has met with a resolute and successful resistance. (Case of Skinner and the East India Company. Case of Charles Knollis, Esq. claiming to

be

be Earl of Banbury. Case of Bridgman and Holt. See Hargrave's Preface to Hale's Jurisdiction of the Lords ;) and Lord Holt has left an example by his conduct, in the case of Ashby and White, of a similar unbending spirit, toward the encroachments of the Commons. The manner in which a Court of Law, ought to treat every assumption by one of the branches of the legislature of those powers, which appertain to them only when they are united, was properly expressed by Lord Mansfield, in the debate upon the address, A. D. 1770. He is reported to have said, that declarations of law, made by either House of Parliament, were always attended with bad effects, that he constantly opposed them when he had an opportunity, and never, in his judicial capacity, thought himself bound to honor them with the slightest regard. (See also the Debates in the Lords and Commons, on the Power of the Commons to Suspend the Execution of Law, a. D. 1784.)

CHAP. XIX.

ONE thing only remains to be explained, concerning which you have raised some scruples, that is, whether the Laws of England are to be looked upon so useful, so well accommodated to the particular Constitution of England, as the Civil Imperial Laws are for that of the Empire. I remember a saying of yours, my Prince, that comparisons are odious; and therefore I am not very fond of making them: you will see better reasons whereby to form your judgment, and which of the two laws may deserve the preference, by considering wherein they differ, than by taking my opinion in the matter upon trust. Where they agree, they are equally praiseworthy; but in cases where they differ, that law which is the most excellent in its kind, after mature consideration, will eminently appear so to be: wherefore I shall produce some such cases, that you may weigh them in an equal balance, and thereby know for certain, which law is the more just and rational in its decisions and first, I shall propose some instances of cases, which appear to me the most considerable.

CHAP. XX.

ན་

WHERE any have a controversy depending before a Judge, and they come to a trial upon the matter of fact, which those who are skilled in the laws of England, term the Issue of the Plea in question: the issue of such plea, by the rules of the Civil Law, is to be proved by the deposition of witnesses, and two witnesses are held sufficient: but, by the Laws of England, the truth of the matter cannot appear to the Judge, but upon the oath of twelve men of the neighbourhood, where the fact is supposed to be done. Now, the question is, which of those two ways of proceeding, so different, is to be esteemed the more rational and effectual for the discovery of the truth. That law which takes the best and most certain way of finding out the truth, is in that respect preferable to the other, which is of less force and efficacy in the examination hereof, I proceed thus".

It may

a In this Chapter Fortescue represents the institution of the Jury as being the prevailing form of trial in England: and many contemporary authorities, particularly the familiar letters of the Paston family, bear testimony to the same fact. be useful and interesting to ascertain the extent to which the trial by Jury was adopted in the time of Fortescue, which involves an enquiry into the history of its introduction, and of its gradual substitution for other modes of judicial investigation.

Dr. Pettingall, who reasons upon the ground, that legal and political institutions are the productions of civilized nations, and the result of wisdom and cultivated nature, has sought for the origin of this beneficial and liberal form of trial in the regula

tions

tions of Grecian and Roman judicature; and he has endeavoured to establish, that what was at first a Roman law, and a mark of servitude in this country, by long usage came to be forgotten as such, and to be considered only as an ancient prescription. (Pettingal on the Use of Juries among the Greeks and Romans.) Sir W. Jones in the Preface to his Translations of Isæus, agrees with Dr. Pettingal, that the Athenian Juries differed from ours in very few particulars. A learned controversy has been sustained upon the question, whether the trial by Jury was in use among the Saxons. (Spelman's Gloss, Voc. Jurata. Hickes's Dissertatory Epistle on Saxon Literature. Preface to Wilkins's Leges AngloSaxonica. Brady's History of England. Hallam's Middle Ages, ch. 8. Reeves's History of the English Law, Part I. c. 1.) The discussions have principally turned upon the cicumstance, that in examining the laws and the treatises of the Saxons, together with the history of their judicial proceedings, the expressions which some writers suppose have reference to a Jury, are by others construed to be intended of compurgators, of the suitors of Court, or of certain assessors to the Judges. The first satisfactory relation of a trial by Jury in England, is in a cause in which Gundulph, Bishop of Rochester, was a party, and which was tried before the Bishop of Baieux, in the reign of the Conqueror. It was not until the reign of Henry the Second, that the trial by twelve men, "duodecemvirale judicium" generally superseded the trial by an indefinite number of suitors of Court, which was in very common use during the Saxon times. Reeves's History of the Law, Henry II. Hallam's Middle Ages, ch. 8. Hickes's Diss. Epist.) The celebrated expression in Magna Charta "judicium parium" has received different interpretations: besides the more common one of its referring to a Jury. In the opinion of some writers, it means a trial by the pares curiæ; and Coke observes that "judicium" is used instead of "veredictum," because it is intended to relate to proceedings before Lords in Parliament, (2 Inst. 49.)—The trial by Duel had been a very ancient custom among the Normans, but it became gradually neglected after the Institution of Henry the Second, mentioned by Glanville, which abolished it in some cases, and afforded the option of avoiding it in others: to obviate the necessity of having recourse to this species of trial, in cases not within the scope of the provision of Henry II. the grand assize were frequently charged with the determination of collateral questions, which was signified by the expression "assisa vertitur in juratam:" and the Courts began to encumber the right of battle with new restrictions, as the eminent advantages of the trial by Jury became more fully apparent. We meet, however, with a judicial duel in the 19th of Henry VI. and other instances have occured since Fortescue wrote. In judging, however, of the sentiments of the age, from proceedings of this nature, the qualifications