had always heard that the law was the perfection of reason, and if so he had reason as well as his judges, was met by the reply that questions concerning the lives or goods of his subjects were "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." "Am I then," said James, "to be under the law?" To which Coke answered, "Bracton saith, quod rex non debet esse sub homine, sed sub Deo et lege."'

In reading this account we should remember that the lion. was the painter, since it was penned by Coke; but there can be little doubt that James met with a severe and well-merited repulse. Instead of profiting by the lesson, he would seem to have resolved that where the prerogative was, however remotely drawn in question, he would dictate the decision if he could not sit as the judge. Accordingly, some years afterwards the Attorney-General, Sir Francis Bacon, by the king's command addressed a written request, or rather an order, to the King's Bench not to proceed to judgment in a cause involving the right of ecclesiastical preferment "until his majesty's further pleasure should be known upon consulting him." The court met this injurious mandate by at once entering the judgment on which it had already resolved; and the judges then wrote a firm, though respectful, letter to the sovereign, declaring that they could not have done otherwise consistently with their oaths. The reply was a summons to appear before the king, who in the presence and with the concurrence of his obsequious Attorney-General and Lord Chancellor Ellsmere, rated them soundly, not only for their disobedience to his orders, but for their presumption in sending such an excuse. The twelve prayed for pardon on their knees; and were then interrogated whether when the king believed either his prerogative or interest to be concerned, and required the attendance of the judges, "they ought not to stay proceedings until his majesty had consulted with them." All assented, except Coke, who made what Lord

1 12 Reports, 63.

TO THE JUDICIARY.

165

Campbell justly calls the simple and sublime answer, “when the case happens, I shall do that which shall be fit for a judge to do." Such a manly temper was intolerable in that age, and Coke soon afterwards was removed from his place.1

James died in 1625; and his successor, who inherited his father's tendency to absolutism, sought at the very outset of his reign to prepare the way for the suppression of the liberties of the subject by inducing the then Chief-Justice Crewe to declare privately in favor of the right to raise money without the consent of Parliament, and to imprison without cause assigned. The response was worthy of an English judge; and Crewe was forthwith displaced, to make room for the appointment of Nicolas Hyde, whose character and antecedents were such as to render it most unlikely that he would resist any demand of the court, - an expectation fully justified by his course on the Bench.

I may not pursue the subject farther, but these instances are enough to show how great a pressure was then brought to bear on the judicial office; and it is not surprising that men who, like Hyde, were selected for their complaisance, should have yielded to the solicitations of the court. It would be unfair to argue from such cases to a general rule, and a considerate examination will, on the contrary, show that if in the long roll of English judges anterior to the Revolution of 1688 some may justly be reproached as servile, there were others who rated their honor and the science of the law above court favor and the sweets of office. Among these may be enumerated Fortescue and Markham,-one Lancastrian, and the other Yorkist, but who held the scales even between either faction; Gascoigne, immortalized by Shakspeare-as the chief-justice who committed the Prince; the eloquent

1 Bacon, with characteristic meanness and sagacity, proposed to attain the end which James had in view by so using the writ de non procedendo rege inconsulto as to bring "any cause that may concern your majesty in profit or power from the ordinary benches to be tried and judged by the chancellor of England. And your majesty knoweth your chancellor is ever a powerful counsellor and instrument of monarchy of immediate dependence on the king, and therefore like to a safe and tender guardian of regal rights."

Crewe, removed because he would not pledge himself to support the illegal measures of Charles I.; and finally, Sir Edward Coke, whose dismissal from the King's Bench gave an opportunity for serving the cause of liberty still more effectually in Parliament. One explanation of a more favorable result than could have been anticipated under such circumstances is that the fear of the king's displeasure was balanced by the dread of an impeachment; but a more powerful cause seems to have been the temper of the common lawyers, who, unlike the Continental jurists, were as a body on the side of freedom, and ready to visit with the severest condemnation any judgment that contravened rules and precedents which they revered as sacred.1 They felt instinctively that to outlive liberty would be to outlive the law; their learning furnished the precedents on which to build the Petition of Right; their doctrines were a constant, if not always an effectual, check on ministers like Laud and Strafford; and it was finally the forms of the common law that secured an impartial jury and foiled the attempt to crush the Church of England in the persons of its bishops. It was not, however, until the deposition of James II. that the judiciary acquired the certainty of tenure which is essential to its dignity and usefulness, and became in fact as in popular estimation a co-ordinate branch of the government, standing nearly if not quite on a level with the legislature and the executive.

1 Hallam's Constitutional History, vol. ii. ch. viii. p. 52.

LECTURE X.

The English Constitution (continued). - Modern Ascendency of the House of Commons. It practically appoints the Ministry. - Parliamentary Government through a Ministry dependent on a Majority in the House of Commons, contrasted with the Independent Exercise of Executive Powers by the President of the United States. Causes which produced the English System.

IF the English government as originally constituted was limited in its several parts, it was and still is absolute as a whole, or restrained only by public opinion and the fear of provoking popular resistance. De Lolme relates that the English lawyers were wont to say that Parliament might do anything but renew the classic fable by making a man a woman, or a woman a man. There is no change in the established order of things, no suppression of chartered or prescriptive right, that would not, if declared by Parliament, be legally binding on the English people.1 Magna Charta, though in form a grant from the Crown, is in effect a statute, which with the statutes by which it was confirmed might be legislatively repealed; and this is equally true of the Petition of Right and the other great landmarks of English liberty. Nor does the power of Parliament stop here. The judges might, if it so willed, be dismissed to make way for others. who would be more subservient to the passions of the hour as represented in the House of Commons. Representation might be denied to Wales or Yorkshire, a deed or will annulled, or land taken from the owner and given to a stranger. If a new faith were set up by Parliament, as it was in the time of Henry VIII., no lawyer would allege that the act was void.

1 2 Institutes, 525.

In this brief outline of the English Constitution as it stands in the pages of Blackstone we see a government absolute as a whole, but composed of three several branches, each performing an appropriate part and constituting an effectual check on the others. A nearer view will nevertheless disclose a singular difference between the theory and practice. In the absence of legal or fixed boundaries there are yet certain ideal lines within which Parliament is in fact confined, and which cannot be transgressed without outraging public opinion and producing a deep-seated discontent that would lead to revolution. It is in an unwritten code, in maxims handed down traditionally, in principles which have stood the test of experience, that we must seek the strength, the equipoise, and the stability of the English government. It is well for English freedom that it should be so, because the equal distribution of power existing at an earlier period has . been singularly disturbed in modern times by the ascendency of the House of Commons. In the sixteenth century not only the foreign policy, but the internal administration of the kingdom, was exclusively under the dominion of the Crown. Parliament might, and to a certain extent did, legislate in matters that did not trench on the royal prerogative; but when the question was in what way and through whom the law should be carried into execution, sedition repressed, or the country protected against foreign aggression, the Tudors, and even the feeble James I., were intolerant of the voice of Parliament. I need not remind you how large a share the passions, the enmities, the private feelings and convictions of Henry VIII. and Queen Elizabeth had in the course of the English Reformation; and the servants of those sovereigns were, as history shows, chosen with but little deference for the opinion of the House of Commons. When a minister fell, it might be important to have friends and supporters in Parliament; in the mean time the favor of his master was a sufficient safeguard. While such men as Wolsey, Cromwell, Burleigh, Walsingham, or Bacon were placed near the helm, this was hardly a test of the power of the Crown; their abilities would have been distinguished under any form of govern