upon pending cases.1 But though in the earlier part of his life he attributed to the crown a discretionary power which he denied in later years, at no time in his life had he ever wavered in the belief that the common law was a well nigh perfect system -the foundation upon which, not only the public and private rights of Englishmen, but also the very being of the English state depended.2

3

When, therefore, in 1606, he became chief justice of the Common Pleas he obtained a post which was entirely congenial to him. For the first time he was able to give free play to his ideas as to the position of the common law in the state. But these ideas assorted badly with the claims made by the rival courts and the rival bodies of law which were treading upon the heels of the common law; and they assorted even more badly with the claims made by James I. to decide for himself all these conflicts of jurisdiction. According to Coke's view, the common law was the supreme law in the state, and the judges, unfettered and uncontrolled save by the law itself, were the sole exponents of this supreme law. According to James I.'s view the judges were, like other civil servants, the officers of the crown. The crown could therefore supersede them if necessary, and decide any matter for itself.5 The prerogative was in the last resort supreme in the state. Thus, if a conflict of jurisdiction arose, it was for the king and not for the common law courts (who were usually one of the parties to the quarrel) to settle the dispute; while, if the king's interests were affected by any pending proceeding, he claimed the right to withdraw the matter

1

1 Spedding, Bacon's Letters and Life v 114-118, gives a very clear account of the evolution of Coke's ideas on this matter; he shows that in 1614 he did not object to give such opinions; that Y.B. 1 Hy. VII. Trin. pl. I cited by him, Third Instit. 29, was no authority for his general proposition that "the judges ought not to deliver their opinions beforehand of any criminal case that may come before them judicially"; and that this conclusion was probably the result of his newly discovered principle that the judge ought to be counsel for the prisoner, above 192; but it would appear that an opinion in favour of this view was growing up; in the Autobiography of Bramston (C.S.) 54, the judges in 1629 refused to answer one of the king's questions as to their jurisdiction over words spoken by Sir J. Eliot in Parliament, as the matter might come before them judicially; see above 352 n. 2.

2 See the Preface to vol. ii of his Reports; cp. his view in the Prince's Case (1606) 8 Co. Rep. at f. 22b that it was dangerous to pass private bills to regulate the rights of subjects, because those rights were better adjusted by the courts of law or equity.

The first case which he argued as judge was Sir Moyle Finch's Case (1607) 6 Co. Rep. at p. 70a.

4 See vol. i 436 n. 2.

5 On Nov. 2, 1608, the king had said that he was the supreme judge, “inferior judges his shadows and ministers . and the King may, if he please, sit and judge in Westminster Hall in any Court there, and call their Judgments in question. The King beinge the author of the Lawe is the interpreter of the Lawe," Cæsar's notes in Lansdowne MS. 160 ff. 426, 427, 428, cited by Usher, E.H.R. xviii 673.

from their cognizance.1 It was inevitable therefore, that Coke's tenure of the judicial office should be marked by a series of conflicts with the king, which defined the issues between them, and paved the way for his definite alliance with the parliamentary opposition.

His first conflict arose on the question of the relations between the lay and ecclesiastical jurisdictions.2 This dispute had arisen before he had been raised to the bench. In 1605 Archbishop Bancroft had complained to the Council of the manner in which the jurisdiction of the ecclesiastical courts was hampered by writs of prohibition.3 Coke signalized his accession to the bench by throwing himself eagerly into the fray in defence of the common law jurisdiction. The Archbishop's complaints were met by a series of assertions that the writs of prohibition complained of were well warranted by the law. In 1607 this controversy entered upon a new phase. A barrister named Fuller had applied to the King's Bench for a prohibition against the court of High Commission, and in the course of his argument he had taken occasion to attack its jurisdiction. Unfortunately for himself, he used words which laid him open to the charge of holding schismatical opinions. On this charge he was fined and imprisoned by the court of High Commission. The judges of the King's Bench, while admitting that the High Commission could punish for schism, denied that it could punish a barrister for anything said by him in his argument; and, in the course of their judgment, asserted in the strongest terms their power to determine the limits of the ecclesiastical jurisdiction.5

The common law judges had abandoned Fuller on the technical

1 See James I.'s speech in the Star Chamber in 1616, cited Spedding, Letters and Life of Bacon v 381-384. The following sentences will make the king's position clear" Encroach not upon the prerogative of the crown: if there fall out a question that concerns my prerogative or mystery of state, deal not with it till you consult with the king or his Council or both:" all the different courts in the state must keep their own bounds-the common law courts as well as the others, "and this is a thing regal and proper to a king, to keep every court within his own bounds. As for the absolute prerogative of the crown that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and blasphemy to dispute what God can do, good Christians content themselves with his will revealed in his word: so it is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that; but rest in that which is the king's will revealed in his law; see also his speech in 1609, Works 518-519; these were also Bacon's views, see his letter of advice to the king as to the cases of Præmunire in 1615, Spedding, op. cit. v 252-253.

2 Gardiner, History of England ii 35-42, 122-124.

3 For these complaints and the replies of the judges see Second Instit. 601-609; vol. i 595 n. 1; the complaints were drawn by Cowell, for whom see above 20. 4 Second Instit. 601-618.

5 Nicholas Fuller's Case 12 Co. Rep. 41-" It was resolved that when there is any question concerning what power or jurisdiction belongs to ecclesiastical judges in any particular case, the determination of this belongs to the judges of the common law, in what cases they have cognisance and in what not."'

2

ground that the High Commission had jurisdiction over schism. But they did not abandon their claim to issue writs of prohibition. Bancroft appealed to the king, asserting that the question of the limits of the ecclesiastical jurisdiction, or indeed any other question in which there was a doubt as to the law, could be determined by the king. The judges, he said, were but delegates of the king, and he could at any time withdraw a case from their cognisance, and determine it himself. This was a view with which the king was in thorough agreement.1 But Coke, with the approbation of the other judges, at once took the opportunity of denying these propositions, and of stating his views as to the supremacy of the common law, and as to rights of the judges to be the uncontrolled interpreters of this supreme law. "The law," he said was the golden metwand and measure to try the causes of his subjects: and which protected his majesty in safety and peace." "The king in his own person cannot adjudge any case either criminal . . or betwixt party and party." "The king cannot take any cause out of any of his courts and give judgment upon it himself." "The judgments are always given per curiam; and the judges are sworn to execute justice according to the law and customs of England." It is not surprising that the king was angry. His angry reply and Coke's retort defined the real issue which underlay, not only these disputes as to jurisdiction, but also the various disputes between the king and his Parliaments. This means, said the king, that I shall be under the law, which it is treason to affirm; to which, says Coke, I replied that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. It is probable, indeed, that he did not come off

3

1 Above 428 n. 5.

2 Prohibitions del Roy (1608) 12 Co. Rep. 63b-65. For the divergent accounts of this episode see Usher, E.H.R. xviii 664-675. It seems likely that Coke, having attended several Council meetings at which the king expressed his views as to the subordination of the law to the king, gave a narrative in which he stated the royal views, added authorities in favour of his own views, and threw it into a literary form which bears little resemblance to the spoken words used on this particular occasion, ibid 674, or the events which really happened, ibid 675; we shall see that he sometimes adopts this course in other parts of his reports, below 464. The correct date of this episode seems to have been Nov. 13, 1608, E.H.R. xviii 670.

3 The fundamental character of the difference between Coke and the king is well brought out by the writer of the Observation on Coke's Reports; at pp. 11-12, commenting on the Report of Bagg's Case (1616) 11 Co. Rep. 93b, he says" He doth as much as insinuate that this court (the King's Bench) is all sufficient in itself to manage the state; for if the King's Bench may reform any manner of misgovernment (as the words are) it seemeth that there is little or no use, either of the king's royal care and authority exercised in his person and by his proclamations ordinances and immediate directions, nor of the Council Table, which under the king is the chief watch tower for all points of government, nor of the Star Chamber, which hath ever been esteemed the highest court for extinguishment of all riots and public disorders and enormities; and besides the words do import as if the King's Bench had a superintendency over the government itself, and to judge wherein any of them do misgovern; for this book see below 478 n. I.

with such flying colours as his ex posto facto narrative suggests.1 It seems to be certain that he was reduced to humble himself before the king,2 whose anger was only appeased by the intervention of the lord treasurer. However that may be, it is clear that, though the narrative contained in Coke's report may not be a true account of the actual scene, it does in effect represent truly the issue between the king and himself.

4

This scene between Coke and the king settled nothing. Again in 1610 the archbishop was complaining of the action of the common law judges. This time the quarrel arose over the question whether the High Commission could imprison for adultery. The judges held that it had no such power, and released on bail one Chancey who had been imprisoned on this ground. Again a conference was held. Some of the judges gave way; but Coke and the judges of the court of Common Pleas could not be shaken.5 Nor was the breach healed by the issue of a new commission in which Coke and six of the other judges were included. Coke declined to act under a commission as to the legality of which he was not satisfied." It is not surprising to find that rumours were abroad that the king seriously thought of dismissing him."

It is clear that Coke and his fellow judges had given a new turn to the theory of the subordination of church to state expressed in the preamble to Henry VIII.'s Statute of Appeals.R It would seem that, in their eyes, the church and its courts were subject not only to the royal supremacy, but also to the control of the common law. Whether such an interpretation carried out the intention of Henry VIII. is more than doubtful. It was

1 E.H.R. xviii 673, 675.

2 One account, Sir Roger Boswell's letter to Dr. Milborne ibid 669-670, says that "his Majestie fell into that high indignation as the like was never knowne in him, looking and speaking fiercely with bended fist, offering to strike him etc., which the lo. Cooke perceaving fell flatt on all fower," ibid 670.

3 Two accounts agree in this, ibid 669-670.

4 Sir William Chancey's Case (1610) 12 Co. Rep. 82; for the true date, which is incorrectly given as 1612 in this printed book see Ê.H.R. xviii 666.

5 High Commission (1611) 12 Co. Rep. 84; E.H.R. xviii 666.

6 12 Co. Rep. at pp. 88-89, Coke tells us that the commission was solemnly read, and that it "contained three great skins of parchment, and contained divers points against the laws and statutes of England: and when this was read all the judges rejoiced that they did not sit by force of it"; he refused to take the oath as com missioner; "and all the time that the long commission was in reading, the oath in taking, and the oration made, I stood, and would not sit as I was requested by the archbishop and the lords; and so by my example did all the rest of the justices."

7S.P. Dom., 1611-1618 11, lxi 99-Lake, writing to Salisbury, Feb. 1611, says— "Two prohibitions granted by Lord Chief Justice (Čoke) in two cases of the Church, show his perverse spirit, and unless he can assign good reasons for them, the king will dismiss him, and no longer be vexed with him."

8 Vol. i 589-590.

strongly dissented from by James I.;1 and its correctness was not finally settled till after the Revolution.2 But whether or no Coke's views as to the control exercisable by the common law were correct, he both seconded and elaborated Henry VIII.'s views as to the continuity of English church history, and as to the subordination of the church to the royal supremacy from the earliest times.3 The result, therefore, of the victory of Coke's view was to fix firmly these doctrines in English law, and to add to them the doctrine of the subordination of the church and ecclesiastical law to the common law. Historians and ecclesiastical lawyers of the latter part of the seventeenth and the eighteenth centuries elaborated the thesis of the continuity of the history of the English church, without minimizing the royal supremacy, or denying the control of the common law. But modern controversialists, while eagerly assenting to the theory of continuity, have tried to minimize the royal supremacy, and sometimes to reject the control of the law. This modern view, which represents neither the mediæval, nor the Henrician, nor the modern doctrine of the common law, is simply one of the products of the Oxford movement of the nineteenth century.

no

5

4

Though the question of the relation of the ecclesiastical law to the common law was the principal cause of quarrel, it was by means the only cause. Attacks had been made on the Councils of Wales and the North. There was some reason to suppose that the attack in Parliament on some of the definitions in Cowell's Interpreter, as a result of which the king had been compelled to suppress the work, was instigated by Coke. In 1608 he had been concerned in giving an opinion which considerably restricted the powers which the king by his prerogative could confer upon commissions of enquiry. We have seen that the legality of the powers given to some of these commissions had been a matter of some controversy in the Tudor period." Coke and eight of the other judges now laid it down that, not only was it unlawful to give a commission power to hear and determine offences determinable in the ordinary courts, but that it was also unlawful to give it power only to enquire into these

1In Cæsar's notes touching Prohibitions cited E.H.R. xviii 669 it is said—“ If these incident causes be tried at comon Lawe, no cause of tithes wil be held in the ecclesiastical Courtes. The Judges are like the Papistes. They alleadge scriptures and will interpret the same. The Judges alleadge statutes and reserve the exposition thereof to themselves."

2 Vol. vi c. 6.

3 Caudrey's Case (1591) 5 Co. Rep. 1.

4 The Case of the Lords Presidents of Wales and York 12 Co. Rep. 50; vol. i

510-512.

5 Above 22.

6 Above 429 n. 3; Gardiner, History of England ii 66-67.

7 Vol. iv 70.