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mately granted ; and the two chief justices, the chief baron, and Baron Altham were directed to take the subject into their consideration. In the course of Michael mas term, their resolution was communicated to the privy council; and there can be little doubt that the constitutional terms in which that very important opinion was conveyed, were chiefly owing to the influence exerted by the chief justice of the common pleas over the minds of his brothers. The resolution was delivered in the following words :
“ It was resolved, that the king by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. Also the law of England is divided into three parts: common law, statute law, and custom ; but the king's proclamation is none of them. Also, malum aut est malum in se, aut prohibitum, that which is against common law is malum in se ; malum prohibitum is such an offence as is prohibited by act of parliament. Also it was resolved, that the king hath no prerogative but that which the law of the land allows him. But the king, for prevention of offences, may admonish his subjects by proclamation that they keep the laws, and do not offend them, upon punishment to be inflicted by the law, &c. Lastly, if the offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it punishable there.” * Nothing more dès cisive than these resolutions could have been devised by the warmest advocates of constitutional liberty; and so conclusive were they deemed, even by the court, that after this period, as we learn from a note appended to Sir Edward Coke's own report of the proceedings, no proclamation imposing fine and imprisonment was issued by the court. [Note 3.]
It might have been supposed, that the independent and uncompromising conduct of Sir Edward Coke on these
* 12 Rep. 74.
occasions would have precluded all chance of his promotion; and still less did it seem probable, that he should owe that promotion to the suggestion of his rival, Sir Francis . Bacon. That ambitious and crafty man, who still eagerly desired to obtain the office of attorney-general, seeing that his own promotion depended on that of Sir Edward Coke, prepared a memoir under the title, “ Reasons why it should be exceeding much for his majesty's service to remove the Lord Coke from the place he now holdeth, to be chief justice of England, and the attorney to succeed him, and the solicitor the attorney.” Amongst the reasons offered for the change, Bacon states, “ the remove of my Lord Coke to a place of less profit, though it be with his will, yet will be thought abroad a kind of discipline to him for opposing himself in the king's causes, the example whereof will contain others in more awe.” He also says, that the projected change “ will strengthen the king's causes greatly amongst the judges ; for both my Lord Coke will think himself near a privy counsellor's place, and thereupon turn obsequious; and the attorneygeneral, a new man and a grave person in a judge's place, will come in well with the other, and hold him hard to it, not without emulation between them, who shall please the king best.” * According to these suggestions, Coke was, on the 25th of October 1613, raised to the chief justiceship of the king's bench; and a few days afterwards was sworn in, as a member of the privy council. Hobart was appcin-ed chief justice of the common pleas; and Bacon succeeded to the vacant office of attorneygeneral.
Of the obsequiousness which Bacon anticipated the new chief justice betrayed no symptoms, though in the year 1615 an opportunity occurred to recover his credit in the estimation of the court. A sermon written by one Peacham was seized in his study; and being said to contain treasonable passages, it was proposed to indict the writer for treason. As a preliminary, the accused was
* Bacon's Works, vol. vii. p. 340. Montagu's ed.
examined “before torture, in torture, between torture, and after torture,” but no confession was drawn from him ; “ his raging devil,” as Bacon expressed himself in a letter to the king, “ seeming to be turned into a dumb devil.” It was then resolved to take the opinion of the judges of the king's bench, extrajudicially, as to the nature of the offence of which Peacham had been guilty. This delicate task was confided to Bacon, who applied all his art to win over the chief justice. Coke replied, " that such auricular taking of opinions was not according to the custom of the realm ;” and intimated that his brothers, probably, would not comply with it. Of their opinion, however, Bacon felt well assured. “ Nor am I,” he adds in his letter to the king, “ out of hope that my Lord Coke himself, when I have in some dark manner put him in doubt that he shall be left alone, will not continue singular.” At length the chief justice so far complied with the requisitions of the court as to declare his opinion in writing [Note 4.]; though, from the expressions made use of by Bacon, it seems not to have been of a nature very satisfactory to the court. *
In a case which occurred in the course of the same year (1613), Sir Edward Coke has been supposed to have exhibited something like a compliance with the wishes of the court; and to have sanctioned, by his opinion, the illegal mode of taxation which was known by the name of “ a benevolence.” Mr. Oliver St. John, a gentleman of an ancient family, addressed a letter to the mayor of Marlborough, in which he questioned the legality of the benevolence lately set on foot. For this offence an information was exhibited against him in the star-chamber, where he was adjudged to pay a fine of 50001., and to be imprisoned during the king's pleasure. In a letter addressed by Bacon to James, giving him an account of the proceedings in the star-chamber, he says, “ My lord chief justice delivered the law for the benevolence strongly ; I would he had done it timely.” In order to form a correct judgment with regard to the honesty of
* State Trials, vol. ii. p. 870.; and see 3 Inst. 29.
the opinion thus delivered by Coke, it is necessary shortly to examine the state of the law as to benevolences, as it existed at this time. By the statute 1 Rich. 3. c. 2. the charge or tax which was collected under this name was declared illegal.
“ But it appears, says Coke, “ by the preamble, that this benevolence was against the will and liberty of the subject; but a freewill offering is not restrained.” * He also mentions a case in the 40th Elizabeth, in which“ it was resolved by all the justices and barons, that a free grant to the queen without coercion is lawful, and accordingly they granted it to the queen.”+ This and other authorities appear to have been collected by Sir Edward Coke, when his opinion was required in St. John's case; and they probably satisfied his mind that the proceeding, though it might not be strictly constitutional, yet was not illegal. That the court did not profess to impose it as a compulsory tax, appears from the address of Bacon to the lords of the star-chamber. “ “ It will,” he says,
appear most evidently what care was taken that that which was then done might not have the effect, no, nor the show, no, nor so much as the shadow of a tax.” Coke, therefore, was bound to declare the law as it existed, and might conscientiously deliver his opinion in favour of a voluntary benevolence.
The discovery of the murder of Sir Thomas Overbury, in the year 1615, and the tracing of that dark and intricate plot to its authors, not only occupied much of the time and attention of Sir Edward Coke, but likewise placed him in a situation of great difficulty. It is impossible, within reasonable limits, to give any idea of this “ grand oyer of poisoning.” In the enquiry which took place previously to the trials, Sir Edward Coke examined upwards of two hundred witnesses; and, in the course of these arduous proceedings, conducted himself with a zeal and industry which even forced an encomium from Bacon. “ This I will say of him, and I would say
* 12 Rep. 119.
State Trials, vol. ii. p. 90%.
.as much to ages, if I should write a story, that never man's person and his place were better met in a business than my Lord Coke and my lord chief justice in the cause of Overbury.” Much of the mystery in which these infamous proceedings were enveloped has never been unravelled. From various passages of the trial, it is obvious that the chief justice was impressed with an idea that certain persons, whose names could not be breathed, were in some manner implicated in the transaction. [Note 5.] With unwearied diligence, however, he searched out and brought to punishment the actual perpetrators of the crime, though the king's favourite was included amongst them.
It was rumoured at the time that the conduct of Sir Edward Coke during these proceedings had given much displeasure to the court; and a circumstance soon afterwards happened, which increased the odium under which the chief justice laboured. The king had been informed that Sergeant Chiborne, in arguing a question in the common pleas, had maintained certain positions .contrary to the royal prerogative. Sir Francis Bacon was therefore directed to inform the judges that it was his majesty's pleasure to be first consulted before they proceeded to pronounce their judgment in the cause. The attorney-general accordingly signified the royal commands to the chief justice t, who desired that each of his brethren might receive a similar intimation. Upon this the judges met, and, after a conference, resolved that it was their duty to proceed notwithstanding the royal mandate. In order to justify this resolution, they addressed a modest and respectful letter to the king, in which they stated the reasons in law, and the oath which compelled them to proceed. This document was signed by all the twelve judges. James replied by a letter, in which he pronounced the alleging their oath for their non
* State Trials, vol. ii. p. 1027. But see his Letter in the Biogr. Brit. p. 687 + See the Letter, Bacon's Works by Montagu, vol vii. p. 321. | Biogr. Brit. art. Coke, p. 688. Bacon's Works, by Montagu, vol. vii.