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received an immediate and unqualified denial from Coke, with the assent of all his brethren present;
- and it was, says he, “greatly marvelled that the archbishop durst inform the king that such absolute power and authority belonged to the king by the word of God.” The conclusion of this conference is admirably told by the chief justice himself. “Then the king said, that he thought the law was founded upon reason, and that he and others had reason as well as the judges. To which it was answered by me, that true it was that God had endowed his majesty with excellent science and great endowments of nature; but his majesty was not learned in the laws of his realm of England. [Note 2.] And causes which concern the life or inheritance, or goods or fortunes, of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law ; which law is an act which requires long study and experience, before that a man can attain to a cognizance of it; and that the law was the golden met-wand and measure to try the causes of the subjects, and which protected his majesty in safety and peace. With which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said. To which I said, that Bracton saith, Quod rex non debet esse sub homine, sed sub Deo et lege. ""* The event of this conference soon became public, and is thus related in a contemporary letter : “ On Sunday, before the king's going to Newmarket, my Lord Coke and all the judges of the common law were before his majesty, to answer some complaints of the civil lawyers for the general granting of prohibitions. I heard that the Lord Coke, amongst other offensive speech, should say to his majesty that his highness was defended by his laws; at which saying, and with other speech then used by the Lord Coke, his majesty was very much offended, and told him that he spake foolishly, and said that he was not defended by his laws, but by God; and so gave the Lord Coke, in other words, a very sharp reprehension both for that and other
* 12 Rep. 63. See also 2d Inst. 601. State Trials, vol. ii. p. 131.
* * *
things, and withal told him that Sir Thomas Compton (the judge of the admiralty court) was as good a judge as Coke.”* The boldness and ready learning displayed by Sir Edward Coke at this interview cannot be too much admired.
About four years after this attempt to depress the courts of common law, Abbott, who had succeeded Bancroft in the see of Canterbury, renewed the complaints against the judges, and, as before, both parties were summoned before the king. A vehement controversy ensued between the archbishop and Coke, and he and the other judges of the common pleas offered reasons in support of the course they had adopted. They were again questioned on a subsequent day; but, remaining constant in their opinion, the other judges were sent for, and, under the direction of Ellesmere, the lord chancellor, declared themselves of a contrary opinion. Upon this, all the judges were again directed to attend the council; but the justices of the common pleas were commanded to retire, because, as they were informed by the lord treasurer, they had contested with the king. Ultimately, the judges of the king's bench and the barons of the exchequer differing in their opinions, it was resolved in council, that the court of high commission should be reformed.t This was the most successful blow that had yet been aimed at the exorbitant powers of these dangerous tribunals.
The reformed commission, as it was termed in the language of the court, was accordingly prepared; and, in order, no doubt, to prevent his voice being raised against it, the name of Sir Edward Coke, together with those of some others of the judges, was inserted in it. On its being published in the great chamber of the archbishop at Lambeth, the chief justice of the common pleas and the other judges named in it duly attended. But Coke, on being commanded to sit by force of the commission,
Aikin's Court of King James,
* Lodge's Illustrations, vol. iii. p. 364. vol i. p. 349.
+ 12 Rep. 85.
refused; and stated the reasons of his refusal, in which his brethren seemed to concur. He then requested that the commission might be read, when it was found to contain many points against the laws and statutes of England, upon which the other judges expressed their satisfaction that they had not sat under it. While the commission was read, Coke stood, refusing to sit as he was requested by the archbishop and the lords, and by his example this course was adopted by the other judges.* Nothing could have been accomplished more favourable to the interests of freedom than the stripping these illegal courts of the sanction which a notion of their legality afforded.
For this inestimable service the country was indebted to Coke.
In the year 1612, another most important constitutional question, respecting the nature and efficacy of the king's proclamations, was submitted to the consideration of Sir Edward Coke. From the first commencement of his reign, James had been in the habit of issuing numbers of these edicts, in which he frequently usurped the province of parliament, and denounced penalties upon the commission of acts to which no punishment was affixed by the law. The first proclamation which he issued upon his arrival in England was dated from Burghley, and related to the apprehension of William Ruthven and Patrick Ruthven, two of the Gowrie conspirators. This was followed by a proclamation against monopolies, and subsequently by a variety of others, making the total number of those issued in the first year of his reign thirty-seven.t For some time the issuing of these edicts does not appear to have excited much jealousy. “ The people,” says Wilson the historian I, “ took them for good payment a great while, till the multitude of them lessened their valuation.” At length the frequency of these extraordinary attempts to supersede the usual functions of the legislature roused the attention of the commons; and, on the 7th July 1610, a petition of
* 12 Rep. 88.
+ Booke of Proclamations.
grievances was presented to the king, in which the number and nature of the proclamations which his majesty had promulgated occupied a conspicuous place. “Nevertheless,” say the complainants, “it is apparent both that proclamations have been of late years much more frequent than before, and that they are extended not only to the liberty, but also to the goods, inheritances, and livelihood of men ; some of them tending to alter some points of the law, and make them new; other some made shortly after a session of parliament, for matter directly rejected in the same session ; others appointing punishments to be inflicted before lawful trial and conviction; some containing penalties in form of penal statutes ; some referring the punishment of offenders to courts of arbitrary discretion, which have laid heavy and grievous censures upon the delinquents ; some, as the proclamation for starch, accompanied with letters commanding enquiry to be made against transgressors at the quarter-sessions; and some vouching former proclamations, to countenance and warrant the latter.” * Amongst the proclamations complained of were two issued in 1608 : the first relating to the making of starch ; the second forbidding the erection of buildings in London, and commanding the justices of the peace to pull down the same if erected contrary to the proclamation, to sell the materials, and to commit the workmen to prison.t In presenting the petition of grievances to the king, Sir Francis Bacon, one of the members commissioned to perform that duty, endeavoured to palliate the ungracious proceeding by expressions of great humility and submission. “ Let not the sound of grievances, said he, in his address to the king, though it be sad, seem harsh to your princely ears. It is but gemitus columbæ, the mourning of a dove, with that patience and humility of heart which appertaineth to loving and loyal subjects.”[ James, however, had sufficient discretion
* Petition of Grievances, Howell's State Trials, vol. ii. p. 525.
to perceive that the gentle complaints of the dove might be changed into the angry cry of the eagle; and he there fore thought it necessary to take some steps to establish the legality of his edicts. It was accordingly determined that the judges should be consulted, doubtless under the expectation that an opinion favourable to the royal wishes might be procured from that venerable body.
On the 20th of September, Sir Edward Coke was summoned to attend the lord chancellor, lord treasurer, and some other members of the council ; and was directed to give his opinion respecting the legality of the two proclamations relating to the making of starch, and the erecting of new buildings in London. Excusing himself from giving an immediate answer, he begged that he might be allowed to confer with his brother judges on the matter," and then make an advised answer according to law and reason.” The members of the council present were careful that the chief justice should not be ignorant of the wishes entertained by the court. The lord chancellor said, “ that every precedent had first a commencement, and that he would advise the judges to maintain the power and prerogative of the king; and in cases in which there is no authority and precedent, to leave it to the king to order in it according to his wisdom, and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice; and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken.” The lord privy seal said, “ that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease.”
“ And all concluded," adds Sir Edward Coke, “ that it should be necessary at that time to confirm the king's prerogative with our opinions, although that there were not any former precedent or authority in law ; for every precedent ought to have a commencement.” In reply to these observations, the chicf justice intimated an opinion against the legality of the proclamations, and again urged his request to be allowed a conference with his brethren, which was ulti