"towards the king, towards other courts, and towards other laws." Under the first head, in contempt of the law and of their solemn oaths of office, he enjoins them to deal with no question which concerned his "prerogative or mystery of state," till they had consulted with the king or his council; "for these," says he, "are transcendent matters, and must not be slibberly carried with over-rash wilfulness; for so may you wound the king through the sides of a private person: and this I commend unto your special care, as some of you of late have done very well, to blunt the sharp edge and vain popular humor of some lawyers at the bar, that think they are not eloquent and bold-spirited enough, except they meddle with the king's prerogative: but do not you suffer this; for certainly, if this liberty be suffered, the king's prerogative, the crown, and I, shall be as much wounded by their pleading as if you resolved what they disputed. That which concerns the mystery of the king's power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs unto them that sit in the throne of God."

With respect to other courts, he inculcates much reverence for the royal court of chancery, and expresses his high indignation at the "foolish, inept, and presumptuous attempt" on the part of the common law to bring the officers of that court under a præmunire. He also finds great fault with the frequent granting of prohibitions by the king's bench

against

against the spiritual courts, and declares that men come now to courts less to hear decrees given, than questions of jurisdiction decided, and see which court will prevail. As for the star-chamber, he says, "It hath a name from heaven, a star placed in it; and a star is a glorious creature, and seated in a glorious place, next unto the angels," and adds, that it" hath that belonging to it which belongs to no other court: for in this court attempts are punishable, where other courts punish only facts; and also where the law punisheth facts easily, as in cases of riots or combats, there the star-chamber punisheth in a higher degree; and also all combinations of practices and conspiracies. And if the king be dishonored or contemned in his prerogative, it belongeth most properly to the peers and judges of this court to punish it." He finally commands them not to nourish men in contempt for other courts, but to teach reverence for them in their public speeches, and to remember, that they are to declare and not to make lawa.

While the monarch was thus jealous of what he treated as the arrogancies of the jury-courts, and their encroachments upon those which were constituted and administered more according to the rules of the civil law, better jurists and better Englishmen perceived that all the usurpation was on the other side; and they earnestly deprecated, and labored to avert, the public mischiefs which threatened to re

a

King James's Works, fol. pp. 549 et seq.

sult

sult from the daily increasing abuses in the administration of justice;-abuses, than which none are more adapted to debase the spirit of a patient people or to exasperate that of a free and generous one.

On this subject, too much neglected by the historians of the reign of James, it may be instructive to enter into some details. In the "Table-talk" of the wise and learned Selden, that valuable repository of his free judgements and acute remarks,—is the following observation concerning the chancery:— "Equity is a roguish thing; for law we have a measure, know what to trust to; equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. It is all one as they should make the standard for the measure we call a foot, a chancellor's foot; what an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot; it is the same thing in the chancellor's conscience.

When this high court of judicature, from which, according to James's own statement in the speech above cited, there then lay no appeal, was thus arbitrary in its judgements, and not, as now, circumscribed by recorded decisions and rules of law,-it may well be believed to have acted in many cases partially and oppressively; and the attempt of Coke to restrain its jurisdiction might deserve to be regarded as a patriotic effort, however unsuccessful.

The star-chamber, independently of all the particular instances of its cruel and corrupt judgements

which stain the annals of the Tudors and the Stuarts, stands sufficiently condemned in the king's own enumeration of its tremendous powers of punishing intentions; of enhancing the penalties awarded by the common law of the land; and of chastising contempts against the royal prerogative of which no law took cognisance.

It is needless here to expose the iniquities and barbarities of that genuine Inquisition the high-commission court, through which the king exercised his jurisdiction as head of the church;-but the following observation of Selden's applies equally to the penalties inflicted by this court and by that of the star-chamber:-"The old law was, that when a man was fined, he was to be fined "salvo contenemento,” so as his countenance might be safe; taking countenance in the same sense as your countryman does, when he says, " If you will come to my house, I will show you the best countenance I can," that is, not the best face, but the best entertainment. The meaning of the law was,, that so much should be taken from a man, such a gobbet sliced off, that yet, notwithstanding, he might live in the same rank and condition as before; but now they fine men ten times more than they are worth." Osborn, in his strong though homely manner, describes the star-chamber as a place where the great men alternately "held one another up to be whipped:" and certainly they did not spare the lash on a fallen rival or discarded favorite.

But of all the deteriorations which the mild and venerable

venerable system of English jurisprudence had suffered from the adoption of foreign modes of tyranny and coercion, none was so flagitious, none so opprobrious to an age which called itself enlightened and civilised, as the introduction of judicial torture.

That this atrocity was practised in a manner as absurd and barbarous as the thing itself, Selden thus testifies: The rack is used nowhere as in England: in other countries it is used in judicature when there is a semiplena probatio, a half proof against a man; then to see if they can make it full, they rack him if he will not confess: but here in England they take a man and rack him, I do not know why, but when somebody bids."

It will be important to trace with some minuteness the progress of this abuse. "There is nothing upon which Englishmen have greater reason to pride themselves, than those peculiar notions of government and law which have at all times distinguished them from the other nations of Europe, in the absence of judicial torture and of all cruel modes of executing convicted criminals. While these prevailed in all the neighbouring states, especially in France and Scotland, they were scarcely known in this country; and with the exception of the punishment for high treason, and of the barbarous punishment of the peine forte et dure, were never recognised by our law. Upon occasion, indeed, of crimes which were considered as of great enormity, there has appeared in some of our public men a disposition to have recourse to torture for the discovery of

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