agent of the government can be summoned before a tribunal, for acts done in the exercise of his office, without a preliminary authorization of the Council of State. The effect of the English writ being confined to cases where the king himself was supposed to be injured, would have been of less universal application, but the principle on which it rested would have been equally bad." The principle, moreover, admitted of unlimited extension, and this, we may add, was perceived by Bacon. "The writ," he writes to the king, "is a mean provided by the ancient law of England to bring any case that may concern your Majesty in profit or power from the ordinary Benches, to be tried and judged before the Chancellor of England, by the ordinary and legal part of this power. And your Majesty knoweth your Chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king; and therefore like to be a safe and tender guardian of the regal rights." Bacon's innovation would, if successful, have formally established the fundamental dogma of administrative law that administrative questions must be determined by administrative bodies.

The analogy between the administrative ideas which still prevail on the Continent1 and the conception of the prerogative which was maintained by the English Crown in the seventeenth century has considerable speculative interest. That the administrative ideas supposed by many French writers to have been originated by the statesmanship of the great Revolution or of the first Empire are to a great extent developments of the traditions and habits of the French monarchy is almost past a doubt, and it is a curious inquiry how far the efforts made by the Tudors or Stuarts to establish a strong government were influenced by foreign examples. This, however, is a problem for historians. A lawyer may content himself with noting that French history throws light on the causes both of the partial success and of the ultimate failure of the attempt to establish in England a strong administrative system. The endeavor had a partial success, because circumstances, similar to those which made French monarchs ultimately despotic, tended in England during the sixteenth and part of the seventeenth century to increase the influence of the Crown. The attempt ended in failure, partly because of the personal deficiencies of the Stuarts, but chiefly because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions. — DICEY, Law of the Const. c. xii.2

It must be recollected that in the Continental States of Europe the courts of law have not, as a rule, the power to decide upon the legality

1 It is worth noting that the system of "administrative law," though more fully developed in France than elsewhere, exists in one form or another in most of the Continental States.

2 Reprinted bere by permission - ED.

or illegality of the administrative acts of executive officials. Such questions seem to be regarded as matters of public right and so properly withheld from the courts, whose jurisdiction over civil rights should not extend beyond private right. It can hardly be denied that every American lawyer, who holds that judicial courts are competent to decide questioned laws to be constitutional or unconstitutional, presupposes that the same courts are competent to decide questioned executive acts to be legal or illegal. Indeed, it is safe to assert, that every American must ponder long before he can understand how a judiciary which cannot question an executive act, can question an act of legislation. When judicial power was in America extended to cases arising under written constitutions, which involved the unconstitutionality and resultant invalidity of legislation, that extension was partially due to originality in creating new institutions and was partially the effect of existing causes. One of the most potent of existing causes must have been that the judges in every land of the common law could decide upon the legality or illegality of the executive acts of officials. It has been said in France that judges should not be competent to decide laws to be unconstitutional because the judiciary is a feeble power. Doubtless, it is correct to say that the judiciary is a feeble power in France and other civil law countries. But in all the lands of the common law, whether in the Eastern, the Western, or the Southern hemisphere, the judiciary is not a feeble power, and never has been. BRINTON COXE, Judicial Power and Unconstitutional Legislation, 102.

In approaching the history of the medieval church, we may regard the spiritualty of England, the clergy or clerical estate, as a body completely organized, with a minutely constituted and regulated hierarchy, possessing the right of legislating for itself and taxing itself, having its recognized assemblies, judicature and executive, and, although not as a legal corporation holding common property, yet composed of a great number of persons, each of whom possesses corporate property by a title which is either conferred by ecclesiastical authority, or is not to be acquired without ecclesiastical assent. . . . The spiritualty is by itself an estate of the realm; its leading members, the bishops and certain abbots, are likewise members of the estate of baronage; the inferior clergy, if they possess lay property or temporal endowments, are likewise members of the estate of the commons. . As an estate of the realm the spiritualty recognizes the headship of the king, as a member of the Church Catholic it recognizes, according to the medieval idea, the headship of the pope. . . . They recognize the king as supreme in matters temporal, and the pope as supreme in matters spiritual; but there are questions as to the exact limits between the spiritual and the temporal, and most important questions touching the precise relations between the Crown and the Papacy. On mediæval theory the king is a spiritual son of the pope; and the pope

may be the king's superior in things spiritual only, or in things temporal and spiritual alike.

...

The idea of placing in one and the same hand the direct control of all causes temporal and spiritual was not unknown in the Middle Ages. The pope's spiritual supremacy being granted, complete harmony might be attained not only by making the pope supreme in matters temporal, but by delegating to the king supremacy in matters spiritual. . . . There were not wanting men who would try to persuade him [Henry II.] that even without any such commission he was supreme in spiritual as well as in temporal matters. Reginald Fitz Urse, when he was disputing with Becket just before the murder, asked him from whom he had the archbishopric? Thomas replied, "The spirituals I have from God and my lord the pope, the temporals and possessions from my lord the king." "Do you not,” asked Reginald, “acknowledge that you hold the whole from the king?" "No," was the prelate's answer; 66 we have to ren

der to the king the things that are the king's, and to God the things that are God's." The words of the archbishop embody the commonly received idea; the words of Reginald, although they do not represent the theory of Henry II., contain the germ of the doctrine which was formulated under Henry VIII. —3 STUBBS, Const. Hist. Eng. ch. xix. §§ 376, 377.

the

A case of 1505–6 (Y. B. 21 H. VII., 1, 1), is stated by Coxe (Judic. Power and Unconst. Leg. 147), in which the validity of an Act of Parliament was debated. In this case KINGSMILL, J. (fol. 2a), said: "But, sir, the Act of Parliament cannot make the king a parson, for we, by our law, cannot make any temporal man have spiritual jurisdiction; no one can do this except the Supreme Head" [i. e., pope]. Later on Palmes, "one of the new sergeants" (fol. 2b), argued: "No temporal Act can make a temporal man have spiritual jurisdiction; if it were ordained by Act that so and so should not offer any tithes to his curate, the Act would be void. And at the end of the case FROWIKE, C. J. (fol. 4b), said: "As to the other matter, whether the king can be parson by the Act of Parliament, as I understand, it is no great matter for argument; I have never seen that any temporal man can be a parson without the assent of the Supreme Head. . And so a temporal Act, without the assent of the Supreme Head, cannot make the king a parson."

Coxe, ubi supra, p. 148, remarks: "It may seem strange to many of Blackstone's readers that parliamentary power should be spoken of as limited; but it would have seemed stranger to Englishmen before the Reformation for any one to say that the temporal Parliament could legislate with unlimited power in ecclesiastical matters regardless of the pope's wishes and authority. It required the Reformation, that is to say, an ecclesiastical revolution, for Parliament to obtain its modern plenitude of power in matters ecclesiastical."

This ecclesiastical revolution" came within thirty years after the

debate above referred to, within the lifetime of those who heard it. In 1534 the Convocations of Canterbury and York announced that "the Bishop of Rome has no greater jurisdiction conferred on him by God in this kingdom of England than any other foreign bishop" (Acland and Ransome, Polit. Hist. of England, 75); and in the next year the "Supreme Head" of the Church of England was declared by Act of Parliament to be the King of England (Stat. 26 H. VIII. c. i.).

IN THE MATTER OF CAVENDISH.

COMMON BENCH. 1587.

[1 Anderson, 152.]1

ONE R. Cavendish suggested to the queen that she had power to establish the office of making all the writs of supersedeas quia improvide emanavit in the Common Bench: whereupon the queen, by her letterspatent, granted to the said Cavendish the office of making the said writs for some years, with words of constituimus; after making which patent, the judges were commanded orally, by a messenger, to admit the said Cavendish to the said office. The judges did not do it; and thereupon Cavendish procured the directing of a letter to the said. judges, under the sign-manual and signet, in these words:

66

Trusty and well-beloved, we greet you well; whereas we perceive that notwithstanding our grant unto our well-beloved servant, Richard Cavendish, of the writs of supersedeas upon exigent in that court, he is as yet impeached from the exercise thereof, a matter that we cannot but think strange, being contrary to our meaning, and to the expectation we had of more conformity to be found to the yielding to our said grant than yet we perceive; so as thereby our said servant remaineth as yet frustrate of the commodity and benefit due to the said office; We let you weet that our express will and commandment is, that forthwith you give order that a sequestration of all the profits already grown since our grant to our said servant, and continuing to grow of the said office, be made and committed unto such persons as you shall think meet, with whom you shall take order by bond or other sufficient manner to answer, and yield the same profits unto our said servant, or to any other to whom the same shall be due immediately after the controversy for the execution of the said office shall be decided or ordered, whereof we eftsoones will you not to fail, &c."

The justices considered this letter, and thought that they could not lawfully act according to the contents of the said letter and its order, because it might be that by such sequestration others, alleging the right to make these writs, might be disseised of their freehold, claimed by - Translated from the Reporter's French. ED.

them, in the making of these writs and fees thereupon. All this was told the queen by great men, friends of Cavendish. Thereupon another letter, under the signet and sign-manual, was directed to the justices, as follows:

...

"Trusty and well-beloved, we greet you well, whereas we granted to our trusty and well-beloved servant, Richard Cavendish, Esquire, by our letters-patent, under our great seal of England, the making and writing of all supersedeases upon exigent issuing out of our Court of Common Pleas, and have divers times sent unto you for his admittance into the said office, as well by message delivered by persons near about us as otherwise, which nevertheless hath been neglected, in consideration whereof we, for that our said servant was to depart into the Low Countries for a season, gave commandment for the sequestration de les profits of the said office until our further pleasure therein should be declared; wherefore for that we look for some more dutiful regard to be had by you of our prerogative royal, we have thought good to signify our further pleasure unto you in this behalf, which is that our said servant be no longer withholden from the benefit and use of our said grant; and these are therefore to will and command you and every of you, that immediately upon the sight thereof, without any further delay, you cause present payment to be made unto them [him] or to his assignee of all the foresaid profits since the day of our said grant upon bond with condition that if from time of his admission into the said office, he, his deputy or deputies, shall by virtue of our said grant hold and enjoy the same without lawful eviction or recovery thereof out of the hands of him or his deputy or deputies by any other pretending title to the making and writing of the said writs, that then the said obligation to be void, &c. And furthermore our will and pleasure is, and thereunto we will and command you that upon our said servant offering of himself unto you in our said court this next term, you presently without any further delay admit him unto the use, execution, and profits of the said office according to our said grant; for that we be nothing ignorant that if any of your clerks have any such title or interest as they pretend, both our laws lie open for their remedy, and also they be persons both for wealth and skill able to recover their own right if any such be. In consideration whereof we look that you and every of you should dutifully fulfil our commandment therein, and these our letters shall be your warrant, &c."

This letter was delivered to the justices in presence of the Lord Chancellor of England and the Earl of Leicester at the beginning of the Easter Term, in the twenty-ninth year of the queen [1587]; and the Lord Chancellor declared to the judges that the queen had made the said patent to Cavendish upon a great desire that she had to provide advancement for him; that she understood that by this means he might enjoy this [right], and that she cared much about it. On which account she had commanded him and the said viscount [sic] to hear