CHAP. . 1612. lihood of men; some of them tending to alter 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 inquiry to be made against transgressors at the quarter-sessions; and some vouching former proclamations, to countenance and warrant the latter." On Bacon, now Solicitor General, and in high favour at Court, was imposed the delicate task of presenting this address, which he tried to soften by saying "We are persuaded that the attribute which was given by one of the wisest writers to two of the best emperors, 'divus Nerva and divus Trajanus,' so saith Tacitus, 'res olim insociabiles miscuerunt, imperium et libertatem,' may be truly applied to your Majesty. For never was there such a conservator of regality in a crown, nor ever such a protector of lawful freedom in a subject. Let not the sound of grievances, excellent Sovereign, 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, thinking that this complaint resembled more the roaring of a lion, was much alarmed; and, really believing, from the flatterers who surrounded him, that he possessed rightfully the power which he assumed, he ordered all the Judges to be summoned and consulted "whether it did not by law belong to him." Coke says "I did humbly desire that I might have conference with my brethren the Judges about the answer to the King. To which the Lord Chancellor said that every precedent had at 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 or 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." Coke, C. J.: "True it is that every precedent hath a commencement; but where authority and precedent is wanting, there is need of great consideration before that any thing of novelty shall be established, and to provide that this be not against the law of the land; for the King cannot, without parliament, change any part of the common law, nor create any offence by his proclamation which was not an offence before. But I only desire to have a time of consideration and conference; for deliberandum est diu quod statuendum est semel.” After much solicitation, time was at last given, and the consulted Judges all concurred in an answer drawn by Coke "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."* Coke, in reporting these resolutions of the Judges, adds on his own authority, "The King, by his proclamation or otherwise, cannot change any part of the common law, or statute law, or the customs of the realm. Also, the King cannot create any offence, by his prohibition or proclamation, which was not an offence before, for that were to change the law, and to make an offence which was not; for ubi non est lex, ibi non est transgressio; ergo, that which cannot be punished without proclamation cannot be punished with it.”† Yet Hume, in commenting on the issuing of proclamations by James I., has the audacity to say, "The legality of this exertion was established by uniform and undisputed practice, and was even acknowledged by lawyers, who made, however, this difference between laws and proclamations, that the authority of the former was perpetual, that of the latter expired with the sovereign who emitted them."+ Vol. vi. p. 52. We ought not hastily to accuse him of wilful misrepresentation CHAP. VIII. A. D. 1612. CHAP. Oct. 25. 1613. Coke will is made tice of the King's Bench. Coke met with a very sensible mortification, in being promoted to be Chief Justice of the King's Bench, on the death of Chief Justice Fleming. This office, although of higher rank, was then considered less desirable than the against his chiefship of the Common Pleas, for the profits of the former were much less, with increased peril of giving offence to the Chief Jus- Government, and so being dismissed. Coke's seeming promotion was owing to the spite and craft of his rival. Bacon was impatient for the Attorney General's place, filled by Hobart, who was not willing to change it for the chiefship of the King's Bench, but would for that of the Common Pleas. Bacon thereupon sent to the King "reasons why it should be exceedingly 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." Among the reasons urged for this arrangement were these: "First, it will strengthen the King's causes greatly among the Judges, for both my Lord Coke will think himself near a privy councillor's place, and thereupon turn obsequious, and the Attorney General, a new man and a grave person in a Judge's place, will come in well to the other, and hold him hard to it, not without emulation between them who shall please the King best. Besides the removal of my Lord Coke to a place of less profit, though it be with his will, yet will it 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." The King consented; Coke was obliged to agree to the translation, under a hint that he might be turned off entirely; and Bacon, now Attorney General, in his Apophthegms thus exults in his own roguery : "After a few days the Lord Coke, meeting with the King's Attorney, said to him, Mr. Attorney, this is all your doing; it is you that have made this or suppression, for he was utterly unacquainted with English juridical writers. stir!' Mr. Attorney answered, Ah, my Lord, your Lordship all this while hath grown in breadth, you must needs now grow in height, or else you would be a monster.'" There cannot be a doubt that Coke's elevation was meant as a punishment, and that Bacon, the contriver of it, already contemplated his ruin; but, to save appearances, he was treated with outward respect, and in a few days afterwards he was sworn of the Privy Council. He took his seat in the Court of King's Bench in Michalmas Term, 1613, and presided there three years with distinguished ability and integrity. He reconciled himself to the loss of profit by the high rank he now enjoyed, and he took particular delight in styling himself "Chief Justice of England," a title which his predecessors had sometimes assumed, although, since the office of Grand Justiciar had ceased to exist, they had usually been only called "Chief Justice of the Court of King's Bench." CHAP. VIII. A.D. 1613. support to Hopes were entertained that he really was becoming "ob- He gives sequious." A "BENEVOLENCE" being demanded to supply a qualified the pressing necessities of the Crown, he munificently gave "Benevo20007. as his own contribution, while very small sums could lences." be squeezed out of his brother Judges;—the legality of the Benevolence being questioned in the Star Chamber, after some hesitation he pronounced an opinion that it was not illegal. Mr. Attorney General Bacon thereupon wrote to the King," My Lord Chief Justice delivered the law for the Benevolence strongly; I would he had done it timely." But the ground he took was, that "a Benevolence was a free-will offering not a tax ;" and Bacon added, "It will 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 thus proved that he would not play a factious part for the sake of popularity, and that he was disposed to support the proceedings of the Government as far as his conscience would permit. But Bacon, the Attorney General - now in possession of the King's ear with a view to strengthen his favour at CHAP. A.D. 1615. Court, and to insure his acquisition of the Great Seal, about which he cared more than the completion of his NOVUM ORGANUM, originated proceedings contrary to the plainest His laud- dictates of law, justice, and humanity. One of the worst of these was the prosecution for high treason of Peacham, an Peacham's aged and pious clergyman, against whom the only case was, able conduct in Case. that upon breaking into his house, and searching his papers, there was found a MS. sermon - which he had never preached inculcating the doctrine, that, under certain circumstances, subjects may resist a sovereign who attempts to subvert their liberties. In the vain hope of making him accuse himself, he was placed upon the rack in the presence of the law officers of the Crown, and "examined before torture, in torture, between torture, and after torture." * To obtain a conviction seemed hopeless without a previous opinion obtained irregularly from the Judges. Thus Mr. Attorney reported progress to King James, as to his endeavours: "For Peacham's case I have, since my last letter, been with Lord Coke twice; once before Mr. Secretary's going down to your Majesty, and once since, which was yesterday; at the former of which times I delivered him Peacham's papers, and at this latter the precedents, which I had with care gathered and selected.... He fell upon the same allegation which he had begun at the council table, that judges were not to give opinions by fractions, but entirely according to the vote, whereupon they should settle upon conference, and that this auricular taking of opinions, single and apart, was new and dangerous;' and other words more vehement than I repeat." At this interview, Coke finally refused to give any opinion, and desired the precedents to be left with him. Soon after, Bacon again wrote to the King, "Myself yesterday took the Lord Coke aside, after the rest were gone, and told him all the rest were ready, and I was now to require his Lordship's opinion, according to my commission. He said I should have it, and repeated that twice or thrice, and said he would tell it me within a very short time, though he were not at that instant ready." In three days Bacon wrote finally to the King, * Letter to the King, signed by Bacon. |