<1>The year which witnessed the breach of the French alliance was also marked by a constitutional dispute of no slight importance. For some time 1616.Coke and the King.there had been strong symptoms of a collision impending between the Crown and the Chief Justice of the King’s Bench. The resistance of Coke to James’s claim to impose penalties by proclamation, and to the jurisdiction of the Ecclesiastical Commission, had revealed a spirit of defiance in him, which arose partly from personal ruggedness of temper, but partly also from a strong sense of the importance of his office, not unlike that which, in an early age, made it impossible for Becket, as Archbishop of Canterbury, to abandon the ecclesiastical view of the relations between the Church and the Crown. The treatment which Coke had received in Peacham’s case had tended, not unnaturally, to rouse his indignation against those who had baulked him in his design of erecting the judges, over whom he domineered, into a great constitutional power, whose part it was to mediate between the Crown and the nation.
The collision which ensued, however, was as much the result of the position of the Government as of the personal character of the Chief Justice. As long as the Sovereign and <2>the House of Commons had worked together, no question had arisen of any importance by which the independence of the judges could be affected. But A collision unavoidable under the circumstances.as soon as the King was at open war with the representatives of the nation, it was almost certain that, in some form or another, the judges would put forward a claim to decide upon constitutional questions, and that that claim would be resisted by the Crown.
No man could be better fitted than Bacon to appear as the champion of the King against the judges; for no man could be Bacon’s views.more thoroughly convinced that the judges had no right to hold a position independent of the Crown. There is abundant evidence in his writings that he looked upon the defence of the prerogative as especially entrusted to the care of the judges. If there were any doubt on this point, it would be sufficient to quote the illustration of the lions under Solomon’s throne, of which he so frequently made use. In one of his Essays, for instance, he wrote that ‘Solomon’s throne was supported by lions on both sides. Let’ the judges, therefore, ‘be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty.’ But it is needless to quote individual passages to show that he accepted a political theory which lies at the root of everything which he thought or said upon the subject.
Bacon’s dislike of admitting the judges to be the supreme arbiters on political and administrative questions arose originally from His reason for adopting them.his profound conviction that such questions could only be properly treated of by those who were possessed of political knowledge and administrative experience. He felt, truly enough, that the most intimate acquaintance with statutes and precedents was insufficient to enable a man to decide upon State affairs; and if he had ever been inclined to forget it, the example of Coke was constantly before his eyes as a proof that no amount of legal knowledge will ever constitute a statesman. Nor was this a consideration of small importance. As the relations between James and his Parliament then stood, the judge who decided upon the law which assigned limits to each could not avoid usurping the <3>functions of a statesman. He not only declared how far the existing law applied to the facts of the case, but he fixed the constitution of the country for the future. It was true that the decisions of the judges were liable at any time to be reversed by Act of Parliament; but the day was far distant when it would be possible to obtain the joint assent of the Crown and the Parliament to any Act affecting the powers of either. For the present the judges, if they succeeded in maintaining their independence, would have in their hands the supreme control over the constitution. They would be able, without rendering an account to anyone, to restrain or to extend the powers of the Crown for an indefinite period. In 1606 they had, by a decision from the Bench, assigned to the King the right of levying Impositions, which, in spite of all opposition, he retained for no less than thirty-five years. If it pleased them, they might deprive him, in the same way, of rights which he considered to be essential to the exercise of his government.
Although Bacon’s wish to bring the judges into subjection to the Crown has found no favour in later times, it must be remembered that How far they were justified by modern experience.his doctrine of the necessity of referring elsewhere than to them for the final decision on all constitutional questions has stood the test of modern experience.[1] The victory of Parliament has, indeed, <4>thrown the supreme political power into other hands than those in which Bacon would have placed it; but it is not one of the least happy results of that victory that it has now become possible to exercise a control over the judges without sacrificing their independence. It is Parliament which decides what the constitution shall be, and having this power in its hands, it has no inclination to interfere with the judges whenever, in the exercise of the proper duties of their office, they declare what the constitution is at any given moment. An Act of Parliament at once makes any obnoxious decision of the Courts impossible for the future. There is no longer any reason to be afraid of a judgment similar to those on Impositions and on Ship Money, now that it is certain that there is no difficulty in rendering the judgment innocuous, and in providing, at the same time, against a repetition of the offence.
But no solution of this kind was possible for Bacon. As long as the Crown and the Commons were engaged in a Conflict with one another, Impossibility of Bacon’s anticipating our solution.all chance of legislation upon the parts which they were respectively to occupy in the constitution was at an end. They might either of them have just causes of complaint against the judges; but until they could make up their differences, they were both debarred from interfering by a general and prospective law, and in no other way was it possible to interfere with advantage. Having, therefore, refused to acknowledge the rising claims of the House of Commons, Bacon had no choice but to advocate the plan of entrusting the Crown with powers the exercise of which would ultimately prove as injurious to itself as to the community at large. His recognition of the impropriety of trusting to such men as Coke the <5>final decision on questions which might involve the welfare of the whole people, led him insensibly to choose the worse of two evils. If the Crown could not legislate independently of the Commons, it was to make use of its superior power to tutor the judges to see things as they were looked upon at Court. They must regard themselves as bound to support that prerogative which was in the hands of the King for the benefit of the commonwealth.
It is needless to say that this view of the office of the judges, though it was plausible enough to impose upon the mind of Bacon, Mischief of Bacon’s course.was no less ruinous to the prerogative of the Crown than to the independency of the Bench. If the King and his Council were to interfere with the opinions of the judges on every question in which the constitutional rights of the Crown were involved, it would not be long before the decisions of men who were known to be influenced by other arguments than those furnished by the law-books would cease to be received as having any authority whatever. Even that object which Bacon was justified in aiming at would not be attained. The only way in which the judges could safely be restrained from settling constitutional questions was by making legislation once more possible. Till that was done the King might secure that all their decisions on such questions should be on his own side, but he would at the same time lessen the respect in which those decisions were held by the community at large.
Bacon was the more easily drawn on in the course which he adopted, as he could hardly avoid regarding the whole affair as Position occupied by Coke.a purely personal question. Till within a few years, the judges had been, on the whole, favourable to the prerogative. The great cases of the Post-nati and of the Impositions had been decided upon grounds which would have satisfied the most thoroughgoing champion of the Crown. But not long after Coke’s accession to the Bench, a different spirit began to prevail. Coke was accustomed upon every occasion to appeal to the law, as that which was to decide every question which could possibly arise; but, <6>unfortunately, the arrogance of his bearing, and the narrowness of his intellect, robbed the noblest principles of their attraction. What he meant by the law was neither the collection of written statutes, which would have been utterly insufficient to settle the complicated questions which were continually arising; nor was it, on the other hand, the application of great principles to particular cases. He meant that where the statutes failed him, he was to have recourse to those numerous precedents which he was able to quote in profusion out of his retentive memory, or even that when he was at a loss for a precedent, he should invent a principle to justify him in deciding as he pleased. At the same time he showed a disposition to bring every court in England under the control of the one over which he himself presided. Bacon, in spite of the taunts with which his rival frequently assailed him, never failed to express his admiration of the extent of his legal knowledge; but it was not strange that he should stand in determined opposition to the man who seemed to be bent on establishing in England a despotism of mere book-learning and antiquarian lore. There can be no doubt, indeed, that in this he did Coke some wrong. With all the infirmities of his temper and the errors of his judgment, the great lawyer was in reality fighting for something quite as valuable as anything that the highest statesmanship could give. His law may frequently have been quoted in support of injustice; still it aimed at being law, and not mere arbitrary power. He believed in his own learning as the one thing needful to maintain the institutions of his country. It is not strange that the sympathies of posterity have been with Coke, and not with Bacon. Yet the time has come when we can feel that each was contending for a great principle. In Bacon we have personified, however imperfectly, the claims of statesmanship, of wide political intelligence and of active participation in administrative business. In Coke, if we tear aside the veil of his crabbed and uncouth personality, we may yet recognise something of the majesty of the law. As so often happens, the quarrel was one which could not be solved satisfactorily under the conditions of the time. It was the rise of the constitutional importance of the <7>House of Commons which alone could adequately meet the difficulty.
The momentous question in debate between the Crown and the judges was first brought to an issue on a comparatively unimportant case. Case of Brownlow v. Michell.In 1611 the King had granted to a person named Michell, at the request of John Murray, one of the Grooms of the Bedchamber, the sole right of making certain writs in the Court of Common Pleas. Upon this Brownlow, the prothonotary of that court, finding that his own fees were diminishing, brought an action against Michell in the King’s Bench, on the ground that he had been deprived of his rights by the defendant. It so happened that an attempt to create the same office as that which had been assigned to Michell had been made in the reign of Elizabeth, and that, the judges having resisted the attempt, the Queen had, with her usual good sense, at once withdrawn her pretensions. James, if he had ever heard anything about the matter, neglected to profit by her example.[2]
The matter in dispute was one of no great importance in itself; but it afforded a field on which to try the question, how far 1615.Bacon produces a writ De Rege Inconsulto.the judges could decide, upon merely legal grounds, upon the right of the Crown to make administrative appointments. It happened that there was in existence a writ which was admirably suited to the purpose of a man who wished to deprive the judges of all claim to interfere in such matters. By this writ, De non procedendo Rege inconsulto, the Common Law judges were prohibited from dealing with a case in which the interests of the Crown were concerned, before the question in dispute had been first referred to the Court of Chancery, and its permission obtained for the parties to proceed with the suit.[3] Bacon <8>not only brought this writ into court, but demanded that it should be at once received as an authoritative command, which the judges were not entitled to allow the counsel for either party in the case before them to dispute.
It was plain that, however cogent the precedents might be by which Bacon could support the step which he had taken, it was a concession of no slight importance which he asked the judges to make. At the best, the writ had been but a clumsy mode of ascertaining that the rights of the Crown would suffer no damage by a suit in which it was not itself a party; but as long as it had only been issued in cases where the tenancy of a few acres of land, or the right to some petty office was at stake, it is not probable that any great harm had been done. In the reign of Elizabeth, Bacon would have been right in saying that it ought to be a matter of indifference to the parties whether the cause were tried before the Chancellor or the Chief Justice. In either case, substantial justice would probably have been done. But now that an opposition had sprung up between the Crown and the courts of law, and that every case such as that which was before the Court was sure to be regarded from different points of view by those who took part on either side, the question had ceased to be one merely concerning the honour and dignity of the Crown. What Bacon really wanted he acknowledged in a letter which he wrote at the time. The Chancellor was a great political officer as well as a judge.[4] There would be no fear lest he should be led astray, either by respect for legal technicalities, or by jealousy of the Government, to overthrow any arrangement made by the Crown which was not utterly indefensible in itself.
In fact, if Bacon had had his way, all pretensions of the <9>judges to act as arbiters between the King and his subjects would have been at an end for ever. It is no wonder, therefore, that the judges refused to take Bacon’s view of the case, and directed that the question of the legality of the writ should be argued before them.[5] The King, too, was not behindhand in perceiving the importance of the question at issue. He gave special directions to Coke not to presume to give judgment until he had had an interview with himself.
It was some time before the case was brought to a close. Nearly a year after it had first been brought into the court Bacon was 1616.Bacon’s argument.called on, on January 25, 1616, to speak on behalf of the King. His speech was acknowledged, even by Coke himself, to be ‘a famous argument.’[6] He prudently dropped all allusion to his real motives for wishing to bring cases of this nature under the Chancellor’s jurisdiction, and treated the question simply as one of propriety. He had no difficulty in quoting a goodly array of precedents in support of his view of the case. There is nothing more remarkable than the ease with which he threw off his character as a statesman, and, treating the question as one of purely technical law, dealt with it in a manner which Coke might well have envied.[7]
It was perhaps the difficulty of resisting Bacon’s precedents, combined with the disinclination of the judges to assent to his conclusion, that The suit compromised.led to a compromise of the question. Brownlow gave up his claim to Michell’s office, and the King promised that in future he would not give his assent to the creation of any office which would lead to a diminution of the profits of the existing officials.
So far Bacon had failed. He had been unable to obtain the recognition of Failure of Bacon to obtain the assent of the judges to his scheme.the Common Law judges to a doctrine which would involve the abdication of one of their principal functions. But it was not likely that much time would elapse before he would again be <10>brought into collision with the Chief Justice. In fact, very few weeks passed after Bacon’s great speech on the writ of Rege inconsulto, before Coke allowed his temper to get the better of him in such a way as to afford a golden opportunity to his antagonist.
A custom had gradually arisen of seeking redress in Chancery, in cases where the Common Law courts had failed to Quarrel of Coke with the Chancery.do justice on account of the strictness of the rules which they had laid down for their guidance. Such a practice was, naturally enough, regarded with dissatisfaction by the Common Law judges, and by none more than by the Chief Justice of the King’s Bench, who had long looked upon the Chancellor in the light of a personal opponent, as well as in that of a thoroughgoing supporter of an obnoxious system. If Coke, before he complained of the interference of the Chancery with his jurisdiction, had set himself steadily to work to remedy the evils which were complained of in the practice of his own court, he would probably have gained the support of all impartial persons; for it is manifestly objectionable that the judgments delivered in one court should be liable to reversal in another, unless that other court has been constituted expressly for the purpose of hearing appeals. But, instead of this, he plunged at once into the contest with that violence of temper which was certain to disgust all who knew that real and substantial justice was frequently afforded by the Chancery to suitors who had failed in obtaining it at Westminster.
As Coke was thinking over the best means of punishing those who had insulted the court over which he presided, it The statute of præmunire.occurred to him that a statute[8] passed in the reign of King Edward III., which was directed against those who appealed to Rome against sentences obtained in the King’s courts, contained words which, if taken without regard to the context, might possibly mean that no one was to question a judgment of the King’s Bench in any other court, under the penalty attached to a præmunire.[9] He was <11>accordingly well pleased to discover that two scoundrels[10] named Glanville and Allen, had met with something less than their just deserts in Chancery, after judgments had been given in their favour in the Common Law courts.
Glanville’s case was indeed a bad one. He had swindled a young man named Courtney out of a large sum of money, by Glanville’s case.representing the value of a jewel to be 360l., which was in reality worth only 30l. He sold him this jewel together with others which were worth 100l. more, and obtained from him an agreement to pay 600l., upon which, when he found that the money was not forthcoming, he surreptitiously procured a judgment in a Common Law court. When Courtney discovered the fraud to which he had been subjected, he attempted to get redress, but was refused, on the ground that, the judgment having once been obtained, nothing further could be done. He then applied to the Court of Chancery, from which he obtained the justice which he sought. Allen’s case was somewhat similar. Coke at once took the two swindlers under his protection, and instigated[11] them to prefer indictments of præmunire in the King’s Bench, not only against the suitors who had obtained the protection of the Court of Chancery, but also against the counsellors and the clerks who had taken part in the proceedings.
Coke, however, who was upon the Bench, awaiting the success of his scheme, found an unexpected obstacle in his <12>way. The grand jury, who probably knew nothing about the The grand jury return an ignoramus.statutes and precedents which were appealed to as determining the relations between the two courts, but who knew perfectly well that they were asked to assist a baffled swindler in taking vengeance on his dupe, were by no means in a hurry to find a true bill in the case. On this Coke sent for them, and refused to grant their request for further time to deliberate, as the case was, in his opinion, too plain to need any delay. The jury remonstrated on the ground that they had no evidence that the judgment in question had been duly obtained. Upon this Coke sprang upon his feet, and attempted to browbeat them into submission. They retired for a short time, and, on their returning without having complied with his orders, the Chief Justice told them to go back again. He would not leave the bench till the business was done; if they refused to do as he told them, he would commit them for their conduct.
In spite of all this, the grand jury refused to be bullied into submission. They returned once more into court, and, to Coke’s disgust, returned an ignoramus. Angry as he was, Coke did not dare to carry his threats into execution. He told Glanville and Allen to be ready by next term, when he would have a better jury to decide upon their cases.[12]
At the time when this violent scene was taking place, Ellesmere was lying ill, and, though he ultimately recovered, was Bacon writes to the King.not expected to live. Bacon, who was of one mind with him on such a subject as this, and who had been visiting him in his sickness, wrote to acquaint the King with all that had happened, and promised to send him full particulars as soon as he was able to obtain a trustworthy account. A few days later, he gave his opinion of what had passed.[13] The defenders of the Common Law courts rested their case partly upon the statute of Edward III., which was, in <13>reality, directed against the Papal Courts, and partly upon another statute of Henry IV.,[14] which contained a simple declaration, without any penalty annexed, that, after judgment given in the King’s courts, the parties should be at peace. The reason assigned was because many persons whose cases had already been decided, had been made to come, to their great inconvenience, before the King himself, or the Council, or even the Parliament. This statute, as Bacon argued, was only intended to prevent parties from having to argue the same question over again, and not to prevent the institution of suits in Chancery, in cases in which one party had never been properly heard at all, on account of the strictness of the rules observed in the Common Law courts.
The whole question was referred by the King to the Attorney-General and Solicitor-General, the two King’s Serjeants, Opinion of the law officers.Montague and Crew, and the Prince’s Attorney, John Walter, one of the most rising lawyers of the day. After consideration, they gave it as their unanimous opinion that the Court of Chancery was justified in the exercise of the jurisdiction which had been so violently assailed.[15]
Before, however, the King had decided upon the course he would take, another question arose which embroiled him Case of commendams.still further with the stubborn Chief Justice. It happened that, during the time that Bishop Neile had held the see of Lichfield, he had received from the King the grant of a living to be held in commendam with his bishopric as long as he occupied the see. Two persons of the name of Colt and Glover brought an action against him. They not only asserted that the presentation was theirs, and not the King’s, but they pleaded that, on account of certain legal objections, the grant was invalid in itself. As the case was of great importance, and had never before been brought forward, it was adjourned into the Exchequer Chamber, in order that all the twelve judges might deliver their opinions. Whilst the case was being <14>argued, information was given to the King that his prerogative was being questioned. He accordingly deputed Bishop Bilson to be present in court in his name, in order to make a report to him of the language which was used. On his return, Bilson told him that he had heard Serjeant Chibborne maintain that the King had no power to translate a bishop, and that, though it was true that in cases of necessity he might grant a commendam, yet that it was impossible that there ever could be any necessity for such a step. The King was eager to put a stop to this kind of language. About a month or two before, he had ordered Coke not to proceed to judgment till he had communicated with him in person. He now directed Bacon to write to the Chief Justice, repeating his command.
Accordingly, on April 25, Bacon wrote to Coke, requiring him to intimate to the other judges that it was expected that they would Bacon writes to Coke, ordering him not to proceed with the case.postpone the delivery of their opinions until they had spoken with the King. On the receipt of this letter, Coke resolved to make a stand on behalf of the independence of his office. An anecdote, which has been preserved by Whitelocke, is enough to give an insight into Coke’s feeling on the point.what was passing in his mind. In the autumn of the previous year, whilst still smarting under the treatment which he had received in Peacham’s affair, Coke was present at the sermon at Windsor. As soon as it was concluded, Whitelocke, who was also among the congregation, accompanied him out of the chapel to his coach. Seeing that he was about to drive away, he asked him why he did not remain to the dinner at the Court. Coke replied that the King was fond of asking him questions which were of such a nature that he preferred being as far off as possible. “I guess,” was Whitelocke’s remark as he noted down this conversation, “it was concerning matters of prerogative, which the King would take ill if he were not answered in them as he would have it.”[16]
Since that time the argument of Bacon on the writ of Rege inconsulto, and the known determination of the King to check <15>him in his resistance to what he regarded as the interference of the Chancellor with his own peculiar jurisdiction, had exasperated him still more. He may well have seen in Bacon’s letter an attempt to carry, by a side wind, a point which he had failed to gain by direct attack. If the Attorney-General had been unable to convince the Court of King’s Bench that it was obligatory upon it to refuse to decide upon all cases in which the Crown was concerned until it had obtained the Chancellor’s permission to investigate the matter, it would serve his purpose equally if he could reduce the Common Law judges to such a state of subservience that they would be unlikely to resist the expressed wishes of the King. No method could be imagined more likely to attain that end than the one which was now proposed. If, whenever a case arose in which the prerogative was concerned, the judges were to be called into the presence of the King to debate the point with him, a habit would speedily grow up of looking to the wishes of the Sovereign rather than to the dictates of the law.
To Bacon, Coke returned a short answer. He directed the messenger who brought the letter to tell his master that if he wished the judges to receive the information which he had just given him, he had better write to them himself. On April 26, Bacon, who had no intention of allowing any mere question of etiquette to stand in his way,[17] wrote to the other judges.
To Bacon’s surprise, the judges did not even take the trouble of answering his letters. On April 26.The judges go on with the case.that very day they proceeded with their arguments as if nothing whatever had happened. On the 27th[18] a letter was despatched to the King, written apparently by Coke, but signed <16>by all the twelve judges. They said that they were on all occasions April 27.Their letter to the King.bound to serve His Majesty, but that the case before them depended upon the construction of two Acts of Parliament, on which they were bound to deliver their opinions faithfully and uprightly. The point in dispute before them, moreover, they added, earnestly called for a speedy decision, as it was one in which two parties were interested in a question of property. The letter which they had received was contrary to law, and they were bound by their oaths to pay no attention to it. They had therefore proceeded with the case on the appointed day.
The letter was characteristic of Coke. All through his life, as if by an unerring instinct, he turned aside from a strong argument to cherish weak ones with a parental fondness. He now assumed, what was certainly untrue, that the case was one in which merely private interests were involved. Its importance lay in the fact that it was concerned with public interests, and Coke was bound to show, if he could, that public interests would suffer from the interview to which James had invited the judges.
James had now the advantage on his side. In his reply, he told the judges that he had no wish whatever to interfere in The King’s reply.any question which merely concerned the interests of parties; but in the present case he himself was, to all intents and purposes, a party to the suit. Was it fitting, therefore, that his rights should be adjudicated upon without his being allowed to say a word in his own defence? As to the judges’ oath that they would not delay justice, they were perfectly aware that they were frequently in the habit of postponing the hearing of cases from one term to another, for reasons which at the time appeared sufficient to themselves. All he asked was, that they should do the same when the delay was necessary in order that he might lay before them his own case whenever his rights were involved.
On June 6, the judges were summoned before the Council, The judges acknowledge their offence.in the presence of the King. After the letters which had passed had been read, James proceeded to state his case. His arguments were those which <17>he had previously set down in his letters. As soon as he had concluded, all the judges threw themselves upon their knees and asked pardon for their error.
Coke, however, though he joined the other judges in demanding pardon, did not allow the King’s reasoning to remain unanswered. Coke still protests.He reiterated his opinion that the postponement required by the King was in fact a real delay of justice, and he declared that the judges, at the time when they refused to obey the letter, knew that they had no intention of saying anything, in delivering judgment, which would affect the prerogative. He added that if they had not proceeded on the day appointed, the case would have dropped altogether, as it could not be adjourned except to some certain day, whereas no such day had been named in the letter of the Attorney-General.
A far less practised disputant than James would hardly have missed the transparent sophistry of this last argument. The King had The King’s reply.no difficulty in answering that the judges might easily have fixed any day they pleased, and that, when it arrived, if they had not yet had time to confer with him, they might have adjourned the case again. He then stepped upon more dangerous ground, asserting that they had no right to decide before consulting with him, in order that he might know whether the question concerned his prerogative or not. As to the oath, he wished to know what was the Chancellor’s opinion on the point.
Ellesmere, with a timidity which may easily be accounted for in a man of his age, who had but lately recovered from a dangerous illness, Bacon’s opinion on the obligation of the judges’ oath.shrank from being the first to engage, on such a point, in a contest with Coke. He therefore asked that, as the question related to a matter of law, the opinion of the law officers of the Crown might first be taken. Upon this, Bacon reiterated what had been already said by the King, and concluded by an argument which was no less open to exception than those which had been used by Coke. The oath of the judges, he said, bound them to give counsel to the King whenever they were called upon to do so, ‘and if they will proceed first in a <18>business whereupon they are called to counsel, and will counsel him when the matter is past, it is more than a simple refusal to give him counsel.’ In this opinion he was supported by the other law officers who were present.
It is hardly to be believed that Coke neglected such an opportunity of exposing the blunder made by Bacon, in confusing counsel given by the judges to the King with counsel which the King wished to give to the judges. But such was his inveterate wrongheadedness, that he preferred treating his adversary with contempt, even to exposing the weakness of his argument. It was the place of the Attorney-General, he said contemptuously, to plead before the judges, not to dispute with them. Bacon replied that he had a right to declare the truth in the King’s name against any subject whatever, and appealed for redress for the insult which he had received. James, of course, took his part, and rebuked Coke for the language he had used. Ellesmere then declared that his opinion coincided with that of Bacon.
After the Chancellor had given his opinion, the judges’ oath was read at his request, and the terms in which it was couched were discussed. The judges give way.The question was then put to the judges, one by one, ‘whether if, at any time, in a case depending before the judges, His Majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly?’ Eleven of the judges gave way, and promised that they would in future act according to the King’s wishes. The cause of this dereliction of duty (for, after all that may fairly be said on their behalf, it amounts to nothing less) was no doubt in great measure the fear of offending the King, whom they had been accustomed to treat with reverence, and to whom they owed all their future prospects of professional advancement. But it must not be forgotten that Coke had thrown away every opportunity of supporting his cause by arguments in any way worthy of attention. If Bacon had needed any additional evidence to prove that a strictly legal training is not the best preparation for deciding finally upon <19>political questions, he might have found it in the manifest incapability of the man who was confessedly the first lawyer of the day to defend his position in a question where, on all the main points, he was decidedly in the right.
Coke, however, though he could not refute the arguments which were brought against him, could not bear to acknowledge defeat. Coke alone holds out.Nothing more could be drawn out of him than that, whenever the case should come before him, he would do what was fitting for a judge to do.
Leaving Coke to assert his independence in his own way, the King then turned to the other judges, and asked them whether Interview with the judges.in their argument they meant to touch upon his general power of granting commendams. In the conversation which ensued enough was said to justify Coke’s repugnance to the discussion of legal questions in the King’s presence. It was anything rather than a consultation in which the King laid before the judges his view of the case as far as it affected himself, or in which he asked their opinion as to the extent to which his prerogative was affected by the law. The judges engaged not to allow any other view to be taken than that which he had adopted, and promised to silence any lawyer who presumed to call the prerogative in question. It is no wonder that James expressed his satisfaction, and that he dismissed them with assurances of protection.[19] The case was accordingly proceeded with without further delay, and though it was finally decided against the Bishop, it was on grounds which left the general prerogative of the Crown untouched.[20]
Amongst the names which are appended to the Act of Council in which these proceedings are reported occurs the signature of Bacon, who Bacon becomes a Privy Councillor.for the first time took his seat at the Board upon June 9.[21] When Ellesmere had been ill, in February, Bacon had applied to be appointed his successor in the event of his death, which was at that time hourly expected. In the letter which he wrote he set forth at length the services which he hoped to be able to <20>render in that office.[22] It is needless to enter upon the hopeless task of discriminating between the motives by which Bacon was influenced in making the application. No doubt the desire of benefiting his country was mixed up with the longing for a sphere in which to exercise his talents, which few men of his genius are without, and this again may have been mingled with more ordinary feelings. It is enough that he believed with justice, that he was eminently fitted for the place, and that he laid his claims before the King, from whom alone he could obtain the object of his desires, and whose policy, in the main, he approved, though he would gladly have found an opportunity of drawing him on to a bolder and more comprehensive action.
Ellesmere, however, unexpectedly recovered, and Bacon had to wait a few months longer, knowing that he was sure of the Chancellor’s good word whenever his claims to the succession might be discussed. In the meanwhile he applied for a place in the Privy Council, which would open before him a sphere of action still more suited to his abilities than any merely legal office. After some delay he was offered the choice between a Councillorship and the reversion of the Chancellor place. He unhesitatingly chose the former, which would introduce him at once into the public business of the Government. The Chancellorship would be sure to fall into his hands when the time came.
On June 20, a fortnight after the altercation with Coke, the King came down to the Star Chamber, in order to give public The King comes into the Star Chamber.exposition of the principles by which his conduct had been governed. It would not be impossible to detect a superficial resemblance between the speech which he delivered and those which afterwards fell from <21>the lips of Cromwell. There is the same tendency to quote texts of Scripture, and the same appeal to God as to the foundation of all civil order. But here the resemblance ceases. With Cromwell the whole of the scene which is passing around him is instinct with a living presence, and he feels that his own work can only be rightly done in proportion as he yields himself to become the instrument of Him who is the only true actor in the events of the world. With James, between heaven and earth there exists merely an external relation. God appoints the king, and the king appoints the judges. It is a hierarchy in which James himself plays the principal part. The chief thing which he remembers is that he has a right to plead the appointment of God against all who dispute his title, and that, as he has appointed the judges, he has himself a claim upon their obedience. With all this there is a kind of easygoing assurance in the infallibility of his own judgment, which is not put prominently forward, simply because it never occurs to him to question it.
Adopting this theory of government, all the deductions which James drew from it are legitimate enough. He admired, he said, His speech.the Common Law of England, and would never shrink from giving his support to the judges; but they must take care not to encroach upon the jurisdictions of other courts, which were necessary in their several spheres. There were no doubt defects in the law, some of which he hoped to see amended in Parliament, and others which were traceable to the innovations of the judges themselves. Having said thus much, James addressed the judges on the questions immediately at issue. “Now,” he said, “having spoken of your office in general, I am next to come to the limits wherein you are to bound yourselves. First, encroach not upon the prerogative of the Crown; if there fall out a question which concerns my prerogative or mystery of state, deal not with it till you consult with the King or his Council, or both, for they are transcendent matters, and must not be slibberly carried with overrash wilfulness, for so you may wound the King through the sides of a private person; and this I command to your special care, to blunt the sharp edge and vain popular <22>humour 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.
“Secondly, that you keep yourselves within your own benches, not to invade other jurisdictions, which is unfit and an unlawful thing. This is a thing regal and proper, to keep every Court within his own bounds. Keep you therefore all in your own bounds, and for my part I desire you to give me no more right in my private prerogative than you give to any subject, and therein I will be acquiescent. As for the absolute prerogative of the Crown, that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and blasphemy to dispute what God can do; good Christians content themselves with His will revealed in His Word, so it is presumption and high contempt in a subject to dispute what a King can do, or say that a King cannot do this or that, but rest in that which is the King’s will revealed in his law.”[23]
James spoke in accordance with the theory of the constitution which had been handed down to him. In every constitution there must be some fundamental power the authority of which Character of the King’s speech.is received as binding without dispute. In our days that authority is lodged in the constituencies. In the beginning of the seventeenth century it was lodged in the King.
What James failed to perceive was that if the Royal authority had been beyond dispute, it was the Royal authority in its constitutional relation with the other institutions of the country. There was the greatest difference between a king acting in harmony with Parliament, as the guide and representative of public opinion, and a king ruling without a Parliament and <23>setting public opinion at defiance. The criticism which James had forbidden in its legitimate place would be sure to make its way in unwonted and irregular channels. The balance of the state had been overturned, and popular lawyers and ambitious judges pressed in to fill the void.
It remained to be seen whether Coke would submit to this Royal exposition of the constitution. On the 26th he was called Coke before the Council.before the Council, and the Solicitor-General, after charging him with some pecuniary transactions of a doubtful character in which he had been engaged some years previously, inveighed against him for the words which he had used to the jury in the cases of Glanville and Allen, for his indecent behaviour in refusing to listen to the argument of the Attorney-General in the King’s presence, and for his steadfastness when the other judges gave way. Coke attempted to excuse his conduct, and stated that the Court of King’s Bench had entered an order that no further attempt should be made to meddle with the jurisdiction of the Court of Chancery. On June 30 Coke was June 30.His suspension.again summoned to hear the result of James’s consideration of his defence. By the King’s orders he was suspended from his seat at the Council table, and from taking his part in the ensuing circuit. The harshest part of the sentence was a recommendation that he should employ his leisure in looking over his reports, and in correcting the extravagant and exorbitant opinions which were said to be inserted in them.[24] A few days after this personal question was settled, the King gave his final decision on the disputed jurisdiction, which was, as might have been expected, in favour of the Court of Chancery.
<24>On the question of the jurisdiction of that Court it has been universally admitted that Coke was in the wrong. It is his conduct How far was Coke in the right?in the case of commendams that has secured him the approbation of posterity. If his attempt to erect the judges into a tribunal of arbitration between the King and the nation deservedly failed, the position assigned to the judges by James and Bacon was one which a self-respecting man might reasonably object to occupy. No doubt it seems a very innocent demand that when the judges had to decide on questions affecting the royal authority they should not do so without first hearing what the King had to say on the subject. Just in the same way, at the time when the Benevolence was levied, it had seemed a very innocent demand that a subject should voluntarily make a present to the King if he chose to do so. In practice neither of these demands was quite as innocent as it appeared to be. The sovereign was the dispenser of favours, and was capable of making his ill-will felt in many ways. When that sovereign was voluble and opinionative, it was hard for the judges, unless they were men of more than ordinary firmness, to hold their own in his presence. To the King’s question whether he would stay proceedings in matters concerning the Crown till he had consulted with the King, Coke’s reply had been that, when that case should be, he would do that which should be fit for a judge to do! The answer may easily be criticised as evading the question rather than looking it in the face. Yet this very evasion is the clearest evidence that he did well to resist on this point. If a man, so unbending and arrogant as Coke, did not venture to give a clearer answer, what chance was there that ordinary judges would stand up against the influence of the Crown put forward under the guise of argument? Coke was clearly in the right in instinctively feeling that the true place for a judge was on the Bench, not in the council chamber of the King.
<25>The order to Coke to review his reports was enough to exasperate the meekest of men. He had been attacked as a judge: Oct. 2.Coke reviews his reports.he was now attacked as a lawyer. It was not till after three months’ consideration that he sent in a statement that he had detected five errors in the reports.[25] They were, however, of so trivial a nature that their selection was looked upon as equivalent to the denial of the existence of any real mistakes whatever. Such a treatment of the King’s requirements was The result insufficient.a mere evasion of the points really at issue. What James complained of was, not that the reports had been published with an insufficient list of errata, but that they contained doctrines subversive of that which he considered to be the constitution of the country.[26] Bacon’s advice, so far as it can be ascertained,[27] was that the authority of the other eleven judges should be opposed to the authority of Coke, and that with this object they should be formally asked to declare their opinions to the Council. James, however, did not accept Bacon’s recommendation.[28] He was impatient to bring the question to an issue, and he wished to keep in his own hands the right of dismissing a judge without giving account to anyone. Coke was accordingly asked to express his opinion on the five alleged errors.
On October 21 Coke replied, practically disavowing his opinions. This submission Oct. 21.Coke retracts his opinion.removed one obstacle in the way of his keeping his seat; but it did not remove the main difficulty. His whole course as a judge had been marked by a firm determination to place himself in opposition to the Government, and James could bear that opposition no longer. On November 10, he announced his Nov. 15.Coke dismissed.intention to remove the Chief Justice from the Bench, and on the 15th Coke was formally informed that he no longer held the office which he had magnified so highly.[29]
<26>Coke’s successor was Sir Henry Montague, whose constant agreement with the Court on the various questions at issue since the accession of James Montague, Chief Justice.had recommended him to favour, and who, if far inferior to Coke in legal knowledge, had at least the advantage of greater suavity of manners.
On November 18, Montague took the oaths of office in the presence of the Chancellor, who had recently been rewarded by the King for The Chancellor’s speech to Montague.his long and faithful service with the title of Viscount Brackley. In addressing the new Chief Justice, he advised him to follow in the steps of his grandfather, who had occupied the office to which he now succeeded. He was unable to forbear from recommending him to avoid the example of his immediate predecessor, in a tone which showed that his thoughts were occupied more fully with his quarrel with Coke than with the business immediately in hand.[30] The lawyers of Westminster Hall, who were almost to a man devoted to Coke, whose integrity and ability they respected, avenged themselves by reminding one another of the saying, ‘Many Montagues, but one Markham,’ which had once been current, to the disparagement of the new Chief Justice’s ancestor. In the same spirit, they amused themselves by translating the Chancellor’s title of Brackley into the more intelligible one of Break-law.
The cause of Coke’s dismissal was briefly expressed in a jest which was widely circulated at the time. Four P’s, it was said, Popular feeling.had been the ruin of Coke: Pride, Prohibitions, Præmunire, and Prerogative. There were some who ignorantly ascribed his fall to the anger aroused by the discoveries which he supposed himself to have made in the course of the investigation into Overbury’s murder. Sympathy, too, was awakened by the treatment which he received at the hands of men who were far his inferiors. It was remarked that, when he was called upon to answer to the questions put to him on the subject of his reports, he was not even asked to sit down, and that Ellesmere’s servants went so far as to neglect to take off their hats in his presence. To the men who took <27>pleasure in insulting the fallen judge, Bacon stood in honourable contrast. He disliked his character, and he was desirous of depriving him of the power of doing harm to the King’s service. But, in spite of the many insults which he had received, he never ceased to treat him with respect, and was often heard to say that a man of his learning was not to be found every day, and that it was easier to mar him than to make him.[31]
By the deprivation of Coke, James obtained at a blow all that he had been seeking by more devious courses. There was no longer Importance of this step.any necessity of urging the acceptance of the writ de rege inconsulto when the Common Law judges themselves held their offices practically, as well as theoretically, at the good pleasure of the Sovereign. From henceforward the prerogative was safe from attack in the courts of law. From henceforth, however, it also stood on its own merits, and could no longer expect to obtain that moral support which it had hitherto received from the decisions pronounced from the Bench by judges who were, comparatively at least with the men who held office subsequently to Coke’s disgrace, independent of the favours and the anger of the Crown.
The solution — at least for the time — of the constitutional question raised by Coke’s opposition, had been coincident with Rise of Villiers.the rapid rise of Villiers into all, and more than all, of the favour which had been enjoyed by Somerset. In January 1616, he had been made Master of the Horse; in April he became a Knight of the Garter. It was not intended to give him any official appointment. He was only to deal indirectly with state affairs. He would be, in fact, the King’s private secretary, supplying him with information on what was passing, receiving suits and petitions in his name, and acting rather as his familiar companion than as an officer of State.
For us who know what was Villiers’ subsequent career, and who are able to see that it was unreasonable to expect that any man should occupy his position without encroaching upon what was justly regarded by the Privy Councillors as their own peculiar sphere, it is difficult to realise the <28>satisfaction with which the rise of the new favourite was regarded by those who had looked upon the old one with such thorough detestation. And yet there must have been something extremely fascinating in the young man who had thus risen at a bound to the highest position in the realm. It was agreed by all that he was, as yet, modest and affable, that his hands were free from the bribery with which those of Somerset had been soiled, and that he had been supported by the men most opposed to the proposed connection with Spain. If his education had been neglected, he was not deficient in quickness of apprehension, and he was ready enough to apply for instruction to those who were able to afford him information on any point. Abbot looked upon him with the fondness of a father, and hoped that his influence would be steadily exerted in favour of the cause which he himself had so much at heart. Bacon, though he would have preferred that there should be no favourite at Court at all, must have thought of him, as he had once thought of Essex, as the man who might direct the Government into that nobler path in which he would gladly have seen it walking.
It was to Bacon that Villiers applied to be his instructor in political affairs, in order that he might have sufficient acquaintance Bacon’s advice to Sir George Villiers.with such subjects to satisfy the King. Bacon replied to his application by a letter of advice,[32] which, more than any other of his works, places before us the strength and the weakness of his statesmanship. His views on Church affairs,After giving the young man some good counsel as to the best mode of dealing with suits brought to him for presentation to the King, he proceeded to state his opinion on the affairs of the Church. Since he had written his Treatise on the Pacification of the Church, twelve years before, <29>times had changed. To all outward appearance at least, the policy adopted at Hampton Court had been successful. The questions about forms and ceremonies had dropped out of sight for the time. Good Protestants no longer saw Popery in a surplice or in a ring. Nonconformity still had its adherents, but they were far less prominent than they had been at the close of Elizabeth’s reign. Bacon, therefore, who had formerly stood forward as the advocate of moderate change, now declared himself to be opposed to all innovation.
Bacon then turned to speak of the administration of justice. The laws, he said, were the true arbiters between the King and his people, on the laws of England,and between one subject and another, and care must therefore be taken that nothing should be done to bring them into disrepute.[33]
Bacon’s view of the functions of Parliament was that which he had often before expressed. It was, according to him, on Parliament,a great council occasionally summoned to advise the King in matters of weight and difficulty. It was to prepare laws, which were without force till the King gave life to them by his assent. That it should attempt to overrule the policy of the Government was an idea to which it did not occur to Bacon even to allude.
On the other hand, the Privy Council was a standing body. It should be composed of on the Privy Council.men of ability, and of varied knowledge, in order that they might be ready to give an opinion upon every kind of business.
Bacon then, having said all that he could on constitutional questions, proceeded to give his advice on the policy which ought to be adopted by the King. If peace were to be preserved, England must be prepared for war. In order that the country might be well provided with necessaries, those engaged in trade must avoid the introduction of mere superfluities, and colonies must be established in unoccupied lands, which would be serviceable to the commerce of the mother country.
<30>This advice reveals the advantages which Bacon expected to reap from the Government, and which would, as he feared, be unattainable from the unorganised and clamorous Parliament to which he had been accustomed. He was led astray by his habit of regarding great reforms as things to be done by the courage and wisdom of the few; whilst he was blind to the value of free political life in raising the many to appreciate, and to adopt as their own, the truths which they would never have discovered of themselves.
Whilst this paper was in preparation Villiers was raised to the peerage. On August 27 he became Viscount Villiers and Villiers created a Viscount.Baron Whaddon.[34] No sooner did Bacon hear of his proposed advancement than he wrote to adjure him to dedicate himself to the public welfare, and to distinguish himself, above all who had served the Crown in a confidential capacity, by his care in recommending none but men of ability to office. At the same time, he took the opportunity of reminding him that there could be no excuse for him if he misused the advantages of his position in order to enrich himself, as the King had taken care that he should have no need to complain of want of means to support the dignity of the peerage.[35] Grant of lands to him.It had been at first intended that Sherborne, which had again reverted to the Crown by the attainder of Somerset, should pass into the possession of Villiers. Villiers, however, refused to build his fortune upon the ruins of his predecessor in favour,[36] and Sherborne was given to Digby, who had no such scruples. Villiers may, perhaps, have been influenced by an opinion current at the time, that the possessors of that estate were doomed to misfortune, in consequence of a curse which had been pronounced by an early Bishop of Salisbury upon all who should presume to possess it in defiance of the rights of the see.[37] The manor had certainly, of late years, passed rapidly from hand to hand. Somerset had resold it to the Crown almost immediately after it came into his <31>possession, and Prince Henry, to whom it was soon afterwards given, died before he could fulfil the intention, which he was said to have entertained, of restoring it to Raleigh.[38] Somerset repurchased it, but only enjoyed it for a few months, a circumstance which contributed to invest it still more, in the popular eye, with the character of being an unlucky possession. Whatever may have been the motives of Villiers’ refusal he was not allowed to be the loser. Lands were given him of more than double the value of the estate which he had declined.[39]
Bacon took care to put himself at the favourite’s disposal in the negotiations relating to these arrangements. In all questions which arose, He is assisted by Bacon.he adopted his interests, and defended them as warmly as if they had been his own. Nor did he show any less zeal in fighting his battle in a dispute concerning an office of which he had obtained a grant from the King.
The enrolment of the pleas in the Court of King’s Bench was attached to an office which had long been held by Sir John Roper. In 1612, Roper’s office in the King’s Bench.the reversion of this office was granted by the King to Somerset, at that time known as Viscount Rochester, and to the son of Lord Harrington, Grant of its reversion to Somerset and Harrington.who were, after Roper’s death, to share between them the profits derived from the fees. As, however, it was not desirable that the names of men of rank should appear on the face of the grant, each of the real holders was to nominate a person, to whom his patent was to be granted; and these nominees were in turn to enter into bonds to pay over the proceeds of the office to the great men. As a reward for allowing their names to be thus made use of, each of the nominees was to receive a twelfth part of the fees. Somerset named Robert Heath, a lawyer as yet of no great eminence; Harrington’s choice fell upon Whitelocke. The <32>patents were, therefore, made out in the names of Heath and Whitelocke.[40] Early in 1614, Harrington, who had a few months before succeeded to his father’s title, died, without leaving children; It comes altogether into Somerset’s hands.and his sister, the Countess of Bedford, made over to Somerset the share in reversion which had become hers. Before the bargain was completed, Somerset, who was unwilling to charge himself with the expense of more than one person to execute the duties of the office, required that Whitelocke should be bought off. Accordingly, Lady Bedford gave to her brother’s nominee a sum of 800l., in return for which he covenanted to surrender the office whenever Somerset might request him to do so. From that time, therefore, Whitelocke, though his name was still to be found in the grant, had nothing more than a nominal connection with the reversion.[41]
Soon after Coke took his seat as Chief Justice of the King’s Bench, in 1613, he had given his consent to the arrangement Coke’s resistance.made in favour of the two noblemen.[42] It is, however, probable that, at one time or other, he expressed his disapprobation of such a manner of disposing of the office, and that he was anxious to sequester its profits for the sake of increasing the salaries of the judges of the court. If it was as early as in 1613 that he attempted to resist the King in his claim to dispose of the place, he found it necessary to give way at once. If, on the other hand, it was not till after the fall of Somerset that he attempted to get possession of the office for the judges, he was not long in learning that his wishes would not be granted. At all events when, in January 1616, a false report was brought to him of Roper’s death, he immediately declared his intention of no longer prolonging a contest which was certain to prove ineffectual, as it was by this time known that the King intended to bestow upon Villiers the reversion which had fallen into his hands by Somerset’s attainder.[43]
<33>Villiers was well pleased to receive the reversion, but he would have been better pleased if he could have entered into immediate possession. Negotiation between Villiers and Roper.He was not without hope of being able to gain this point too. He knew that Roper had set his heart upon a peerage, and that when, in 1612, he had attempted to bargain with Somerset for a seat in the House of Lords, he had declared his readiness to relinquish his office as soon as his wishes were granted. Somerset had turned a deaf ear to his proposals,[44] but he might find that the new favourite was not so squeamish as his predecessor had been.
A bargain was accordingly struck between Roper and Villiers. When, however, the time arrived for carrying it out a new difficulty arose. Terms of Roper’s surrender.James was willing to raise Roper to the peerage, but he was himself in want of money to meet the expenses of Hay’s embassy,[45] and required a payment of 10,000l. before he would confer the honour. Roper paid the money, and became Lord Teynham, but, naturally enough, refused to relinquish the profits of his office as well. All that he could be induced to do was to engage to put Villiers in possession, upon the understanding that the fees were to be paid over to himself during his life. It was true that by this arrangement Villiers would be no richer than he had <34>been before, but he would perhaps be exposed to fewer risks than if he had continued to be a mere expectant. As in Somerset’s case, the favourite’s name was not to appear on the face of the grant. Two nominees were to be designated, who, after Lord Teynham’s death, were to account for the profits to Villiers, reserving only a fixed proportion for themselves.
Here, however, another difficulty arose. Teynham demanded to have the nomination of one of the holders of the office, and He wishes to nominate Whitelocke as one of the holders.it was known that he intended to propose that Whitelocke’s name should again be inserted in the grant.[46] Villiers, on the other hand, wished to name two dependents of his own. Heath, who had transferred his services from Somerset to himself, might be welcome to remain, but the second place he had destined for Shute, a lawyer, who made up for the indifference of his character by his devotion to the favourite. Teynham, however, pleaded hard for Whitelocke, and most of the officials who had to do with the arrangement were inclined to give way. Bacon, however, took up Villiers’ cause, and did all that he could to induce Whitelocke to surrender the original grant. He he told him that he hoped better things for him than such a poor office as the one in question; and finding that Whitelocke paid little attention to his persuasions, he even condescended to threaten him with the consequences of the King’s displeasure if he still held out.
Under these circumstances Whitelocke thought it better to withdraw his claim. Whitelocke withdraws his claim.Bacon perhaps reconciled his conduct to himself by remembering that no positive wrong was done to Whitelocke, as he had already sold his interest in the office to Somerset for 800l.[47]
<35>Whitelocke’s resistance had postponed the arrangement which Bacon desired till after the decision had been taken to remove Coke from his post. Bacon was not altogether dissatisfied with this delay, as he knew that if Whitelocke continued obstinate, Coke might, if he retained his office, be able to throw obstacles in the way of Villiers and his nominees, and he suspected that he would be likely to use his influence in favour of the original holders, whose tenure of office had been confirmed by himself.[48] Before, however, the new Chief Justice was installed, Lord Teynham’s office made over to the nominees of Villiers.Bacon took the precaution of obtaining from him an engagement to admit Heath and Shute to the office which Lord Teynham was ready to vacate. Montague made no difficulty in giving his consent, especially as it was agreed that the office should be burdened with a pension of 500l. a year, to be paid to himself. On November 19, the day upon which he took his seat, Whitelocke and Heath surrendered their grant into his hands. Upon this Heath and Shute were at once admitted, and Teynham was put off with an agreement that in case either of the two should die during his lifetime, he should be allowed to fill up the vacancy.[49]
It was at this moment, when all opposition had been checked, that the King’s only remaining son reached an age at which Nov. 4.Creation of the Prince of Wales.he began to be capable of taking an interest in political affairs. On November 4, 1616, when he was within a few days of completing his sixteenth year, Prince Charles, who had long been known as the Duke of York, was created Prince of Wales. Few anecdotes of his boyhood have been preserved. Every now and then some letter-writer mentions him in terms of commendation; but the absence of any notice of such striking acts and sayings as those which had won for his brother an enduring place in the heart <36>of the nation was perhaps the natural result of the steady but somewhat backward boyhood which had followed upon the years of weakness from which he had suffered. The lameness with which he was afflicted in his early years had passed away, under the judicious treatment of Lady Cary, who refused, in defiance of the advice which was so liberally offered to her, to attempt to strengthen his limbs by the use of iron supports; but the physical weakness of his childhood seems to have left its impress upon his tenacious and irresolute mind.
Yet, even with all his defects, it is not impossible that, if he had been ten or fifteen years older, he might have learned End of the Elizabethan age.other lessons than those which brought him to the scaffold. As it was, at the time when his intellect opened to receive the instructions of those who were around him, the fulness of the Elizabethan culture was already gone. In the spring of that very year in which Bacon was bringing his long controversy with Coke to an issue, and was busily engaged in divorcing politics from law, the greatest of the lights of the age which was fading away was laid in his quiet grave at Stratford. The literature, the theology, and the statesmanship which had been known to the heroes of Elizabeth, were gone. The harmony of their many-sided life was at an end. In its place was rising strife between opposing theories, and opposition between definite systems of thought and action. There has, perhaps, never been a moment in the history of England at which such a youth as Charles could enter upon manhood with less chance of understanding the real nature of the duties which he was called upon to fulfil. Incapable of forming large and comprehensive views for himself, there was little hope of his being led in the right path by others. Even the greatest and the best of those who took part in his father’s counsels were men whose thoughts lay apart from the main current of the life of the nation; and it is never with impunity that such a separation grows up between a people and its rulers.
[1] The following remarks of De Tocqueville (Dem. en Amérique, i. chap. 6) are particularly applicable, “Si, en France, les tribunaux pouvaient désobéir aux lois sur le fondement qu’ils les trouvent inconstitutionnelles, le pouvoir constituant serait réellement dans leurs mains, puisque seuls ils auraient le droit d’interpréter une constitution dont nul ne pourrait changer les termes. Ils se mettraient donc à la place de la nation, et domineraient la societe, autant du moins que la faiblesse inhérente au pouvoir judiciare leur permettrait de la faire.
“Je sais qu’en refusant aux juges le droit de déclarer les lois inconstitutionnelles, nous donnons indirectement au corps législatif le pouvoir de changer la constitution, puisqu’il ne rencontre plus de barrière légale qui l’arrête. Mais mieux vaut encore accorder le pouvoir de changer la constitution du peuple à des hommes qui représentent imparfaitement les volontés du peuple, qu’à d’autres qui ne représentent qu’eux-mêmes.” The power of appealing to the Common Law to interpret, or even practically to overrule the statute law, gave to the English judges a right in some <4>measure analogous to the right of interpreting a written constitution of which De Tocqueville speaks. Such a right would throw into their hands the final decision on constitutional questions to a far greater extent than would have been possible if they had been fettered by a written text. Bacon’s solution of the difficulty was very different from that given after the experience of two centuries and a half by the modern writer; but it is probable that they both felt the same objection to the theory which they were combating.
[2] Heath’s Preface to the Argument on the writ De Rege inconsulto (Bacon’s Literary and Professional Works, ii. 683).
[3] The working of this writ, if Bacon had obtained his object, would have been, to some extent, analogous to that provision which has been found in so many French constitutions, according to which no agent of the Government can be summoned before a tribunal, for acts done in the exercise of his office, without a preliminary authorisation by the Council of <8>State. The effect of the English writ being confined to cases where the King was himself supposed to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad.
[4] “Your Majesty knoweth your Chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence upon the King, and therefore like to be a safe and tender guardian of the regal rights.” — Bacon to the King, Jan. 27, Letters and Life, iv. 234.
[5] Bulstrode’s Rep. iii. 32.
[6] Bacon to the King, Jan. 27, Letters and Life, v. 233.
[7] This remark is borrowed from Mr. Heath, Preface to Bacon’s ‘Argument on the Jurisdiction of the Marches,’ Lit. and Prof. Works, ii. 581.
[8] 27 Ed. III. St. i. cap. 1.
[9] The words ‘in any other court’ in the statute are translated also ‘in <11>the court of another,’ apparently correctly, as the French is ‘en autri court.’ This would overthrow Coke’s case at once, as is remarked by the author of the Jurisdiction of Chancery Vindicated, appended to vol. i. of Chancery Reports, p. 30. But the context is quite enough to settle the question.
[10] There is a full account of these men in Harl. MSS. 1767, fol. 37. Compare, for Glanville’s case, Croke, Jac. The sums of money are differently stated. I have adopted those from Croke. The cases are frequently quoted as if they had been one, ‘Glanville v. Allen,’ which is, of course, a mistake.
[11] Such, at least, was the general belief, though he denied it. Perhaps he contented himself with giving them a strong hint that he would support them.
[12] Proofs of the proceedings, printed in Lord Campbell’s Chancellors, ii. 236. The story so often told about the witness kept away, which will be found in the same page, does not fit into the cases of either Glanville or Allen.
[13] Bacon to the King, Feb. 15 and 21, Letters and Life, v. 246, 249.
[14] 4 Hen. IV., cap. 23.
[15] ‘The Jurisdiction of Chancery Vindicated,’ in Chanc. Rep. i, Cary’s Reports.
[16] Whitelocke, Liber Famelicus, 48.
[17] “His answer by word to my man was that it were good the rest of the judges understood so much from myself: whereupon I, that cannot skill of scruples in matter of service, did write on Friday three several letters,” &c. (Bacon to the King, Letters and Life, v. 273.) The meaning is plainly as I have given it above. Bacon did not say, as he is sometimes charged with saying, that he was unscrupulous in the King’s service.
[18] This is the date of the letter, as given in S. P. lxxxvii. 44. ii., which is evidently right.
[19] Act of Council. Bacon’s Letters and Life, v. 357.
[20] Hobart’s Rep.
[21] Council Register, June 9.
[22] Bacon to the King, Feb. 12, Letters and Life, v. 241. It is in this letter that the celebrated ‘gloria in obsequio’ occurs. “For myself,” Bacon writes, “I can only present your Majesty with a gloria in obsequio.” Obsequium is simply obedience, not obsequiousness. All Bacon means is, “If you appoint me, I shall do my best to obey your orders.” His theory of the relation between the King and his ofiicials was, according to our notions, faulty, but it was sincerely entertained.
[23] King James’s Works, p. 549.
[24] Proceedings in Council, June 26 and 30, 1616 (Biographia Britannica, Art. Coke, Note R). The clause concerning the Reports is as follows: “Lastly, that during this vacation, while he hath time to live peaceably and dispose himself at home, he take into consideration his books of Reports, wherein (as His Majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law. And if, in the review and reading thereof, he find anything fit to be altered or amended, the correcting thereof is left to his own discretion. Amongst other things His Majesty was not well pleased with the title of that book, wherein he styled himself Chief Justice of England, whereas he <24>could challenge no more than Chief Justice of the King’s Bench. And having corrected what in his discretion he found meet in those Reports, His Majesty’s pleasure was that he should bring the same privately to himself, that he might consider thereof as in his princely judgment should be found expedient.”
[25] Ellesmere and Bacon to the King, Oct. 2, Letters and Life, vi. 76.
[26] See Bacon’s list of innovations, ibid. vi. 90.
[27] Ibid. vi. 78.
[28] Villiers to Bacon, Oct. 3, ibid. vi, 79.
[29] Ibid. vi. 94.
[30] Moore’s Rep. 826.
[31] Chamberlain to Carleton, Oct. 26, Nov. 14, Court and Times, i. 431, 439.
[32] A Letter of Advice, Bacon’s Letters and Life, vi. 13. See Mr. Spedding’s remarks on the two forms of this paper. I do not feel sure that this first form has not been tampered with in the process of editing after the Restoration. Such a phrase as ‘To resist an invading enemy, or to suppress rebels, the subject may, and must, be commanded out of the counties where they inhabit,’ at once suggests a reminiscence of the controversy on the Militia Bill.
[33] The paragraph, in which Villiers is entreated not to interfere by word or letter in any cause depending in a court of justice, only appears in the second form of the advice written after 1619, when Bacon had had personal experience of the proceedings of Villiers.
[34] Carew Papers, 43.
[35] Bacon to Villiers, Aug. 12, Letters and Life, vi. 6.
[36] Castle to Miller, Oct. 26, Court and Times, i. 429.
[37] Carew Papers, Appendix, No. II.
[38] So it was believed. Yet Prince Henry had the land in his hands for more than a year.
[39] Sherborne was exchanged for land valued at 32,000l. The total value of the land given to Villiers was 80,000l. Chamberlain to Carleton, Oct. 12, Court and Times, i. 425. Bacon to Villiers, Nov. 29, Letters and Life, vi. 118.
[40] July 7, 1612, Pat. 10 Jac. I. Part 14.
[41] Whitelocke, Lib. Fam. 29, 46.
[42] On Nov. 4, 1613. Whitelocke, Lib. Fam. 59.
[43] The story, as told in Roger Coke’s Detection (1719), i. 92, places Coke’s resistance in the autumn of 1616, and makes it out to have been <33>the cause of his final dismissal. The narrative is full of blunders, so that an additional mistake more or less is of no great consequence. It is unaccountable, if the date were correct, how Chamberlain can have missed such a story, and how Bacon could have avoided referring to it in his letter to Villiers of Nov. 29. Besides, we know that, in October, Coke’s friends expected that he would be allowed to take his place on the bench for the express purpose of receiving Roper’s surrender, which would surely have been most unlikely if he were then the main obstacle to the surrender being effected (Chamberlain to Carleton, Oct. 26, Court and Times, i. 431). On the other hand, we know, from Bacon’s letter of Jan. 22, 1616 (Letters and Life, v. 229), that there had already been resistance on Coke’s part, of which we have no particulars. I have, therefore, taken it for granted, that this is the resistance of which a distorted image is found in the Detection.
[44] Egerton Papers, 455. I suppose there can be no doubt that ‘Sir J. Ross’ is a misprint for ‘Sir J. Roper.’
[45] See Vol. II. p. 393.
[46] It is not quite clear whether Teynham expected to gain any advantage by the nomination. He probably only wished to do a good turn to Whitelocke.
[47] Whitelocke, Lib. Fam. 57. Bacon to Villiers, Nov. 29, 1616 (Letters and Life, v. 115). I suppose the question was whether the deed of 1614 had constituted the office Somerset’s property, so as to be forfeited by his attainder. Whitelocke (p. 46) says that in it he covenanted with Somerset ‘to surrender up the office at his request, and not execute it but by warrant under his hand and seal.’
[48] This seems to be the meaning of the passage referring to Coke in the letter cited above. But the words are rather obscure. Whitelocke’s silence is an additional argument against the supposition that Coke had himself opposed Heath and Shute.
[49] Whitelocke, Lib. Fam. 58; Coram Rege Roll. Mich. Term, 14 Jac. I. Rot. 200, R. O.; Grant Book, p. 189.