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refused ; and stated the reasons of his refusal, in which his brethren seemed to coneur. 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. For some time the issuing of these edicts does not appear to have excited much jealousy. “ The people,” says Wilson the historian İ, “ 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, | Kennet, vol. ii. p. 667.
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.” I James, however, had sufficient discretion
* Petition of Grievances, Howell's State Trials, vol. ii. p. 525. + Booke of Proclamations, p. 151. 159.
Bacon's Works, vol. ii. p. 212. 4to. ed.
to perceive that the gentle complaints of the dove might be changed into the angry cry of the eagle; and he therefore thought it necessary to take some steps to establish the legality of bis 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 chief 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
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 Michaelmas 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 decisive 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.