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what it is to-day? This may well be doubted.1 well be doubted.1 In the past the lawyers had helped to make the English Parliament an efficient representative assembly.2 In the seventeenth century the Parliament handsomely repaid this debt by helping Coke and his fellow lawyers to maintain the medieval conception of the supremacy of the common law, and to apply this conception to the government of a modern state. It was in Coke's writings that this and other mediæval conceptions were given their modern form; and therefore it is largely owing to the influence of his writings that these medieval conceptions have become part of our modern law. If their influence upon some parts of our modern law has not been wholly satisfactory, let us remember that they saved Englishmen from a criminal procedure which allowed the use of torture, and that they preserved for England and the world the constitutional doctrine of the rule of law.

The effects of these achievements, both in the sphere of criminal and of constitutional law, were destined in the succeeding ages to make themselves felt beyond the bounds of England, beyond the bounds even of English-speaking peoples, in all places and at all times wherever and whenever men have had the will and the power to establish constitutional government. We may surely claim that these large results of this part of Coke's work upon the civilized world of to-day entitles the most English of our English common lawyers to a place among the great jurists of the world.

But of the effect of Coke's work upon our constitutional law, from which these large results have flowed, I must speak more at length in the next chapter.

1 Cp. Maitland, English Law and the Renaissance 30-" If there had been a Reception . . I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and Parliament, but it would hardly have been that struggle for the mediæval, the Lancastrian, constitution in which Coke, Selden, and Prynne and other ardent searchers of mouldering records won their right to be known to schoolboys."

2 Vol. ii 430-434; vol. iv 174, 188-189.

3 Above 445, 451-454; vol. vi c. 6.

4 Above 195.

5 Both these points can be illustrated from French legal history; Esmein, History of Continental Criminal Procedure (Continental Legal History Series) at pp. 322-323 (Pt. II. Tit. ii ch. 1 § 5) says—“ everywhere upon the continent, in France and elsewhere, the inquisitorial procedure. was now established. . . . One European nation however had resisted and escaped the contagion, and was destined later to serve, to a large extent, as a model for legislation of the French Revolution. This was England." In "La règle Princeps legibus solutus est' dans Pancien droit public Francais," Essays in Legal History (1913) at p. 214 he says-"La philosophie du XVIII siècle. proclamait, comme une règle essentielle de l'État, l'empire absolu et inévitable de la loi. Je ne citerai qu'un passage de Voltaire, qui dans un de ses Dialogues fait ainsi parler un Anglais : 'Ce que je trouve le plus juste c'est liberté et propriété. . Je veux que chacun ait sa prérogative. Je ne connais des lois que celles qui me protègent, et je trouve notre gouvernement le meilleur de la terre parce que chacun y sait ce qu'il a, ce qu'il doit, et ce qu'il peut. Tout est soumis à la loi, à commencer par la royauté et par la religion.' de 1791 enregistrait la règle nouvelle dans ces termes. d'autorité supérieure a celle de la loi. Le roi ne règne que par elle, et ce n'est qu'au nom de la loi qu'il peut exiger l'obéissance.'

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La constitution francaise 'Il n'y a point en France

APPENDIX

I

THE OPINION GIVEN BY THE JUDGES IN 1591 AS TO IMPRISONMENTS BY ORDER OF THE COUNCIL ·

(1) THE VERSION GIVEN BY THE LANSDOWNE MS. LXVIII. 87 To the right honourable our very good lords, Sir Christopher Hatton, of the honourable order of the Garter knight, Lord Chancellor of England, and Sir William Cicill, of the honourable order of the Garter knight, Lord Burghley, Lord High Treasurer of England.

We, her Majesty's Justices of both Benches and Barons of the Exchequer, do desire your Lordships that by your good means such order may be taken that her Highness' subjects may not be committed or detained in prison by commandment of any nobleman or counsellor against the laws of the realm, to the grievous charges and oppression of her Majesty's said subjects: or else help us to have access to her Majesty to be suitors unto her Highness for the same. For divers have been imprisoned for suing ordinary actions and suits at the Common law until they will leave the same, or against their wills put their matter to order, although sometime it be after judgment and execution. Item, others have been committed and detained in prison upon such commandment against the law, and upon the Queen's writ in that behalf, no cause sufficient hath been certified or returned.

Item, some of the parties so committed and detained in prison, after they have by the Queen's writ been lawfully discharged in court, have been eftsoons re-committed to prison in secret places and not in common and ordinary known prisons, at the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custody of any sheriff, so as upon complaint made for their delivery the Queen's court cannot learn to whom to award her Majesty's writ, without which justice cannot be done.

Item, divers serjeants of London and officers have been many times committed to prison for lawful executing of her Majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the Queen's process. Item, divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and compelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions; for remedy in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath.

And whereas it pleased your Lordships to will divers of us to set down when a prisoner sent to custody by her Majesty, her council, or some one or two of them, is to be detained in prison and not delivered by her Majesty's courts or Judges :

We think that if any person shall be committed by her Majesty's special commandment or by order from the Council-Board, or for treason touching her Majesty's person, any of which causes being generally returned into any court is good cause for the same court to leave the person committed in custody, but if any person shall be committed for any other cause, then the same ought specially to be returned.

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Endorsed.-9 Junii 1591. A declaration of all the Judges of sundry misusages in committing men to prison without lawful cause.

(2) THE VERSION GIVEN IN ANDERSON'S REPORTS VOL. I. 297-298 Divers persons fuerunt commits a several temps a several prisons sur pleasure, sans bone cause; part de queux esteant amesnes en Bank le Roy, & part en le Commen Bank fuerunt accordant a Ley de terre mises a large & discharge de le imprisonment, pur que ascun grandus fuerunt offend & procure un commandment a les Juges que ils ne ferr issint apres ceo; neint meins les Juges ne surcease mes per advice enter eux ils fesoint certein Articles le tenor de queux ensua, & deliver eux al Seigniors Chancellor & Treasurer & eux subscribe oue touts lour mains: les Articles sont come ensua, scil.

We her Majesties Justices of both Benches, and Barons of the Exchequer desire your Lordships that by some good means some order may be taken, that her Highness Subjects many not be committed nor detained in prison by commandment of any Nobleman or Councellor against the Laws of the Realm, either else to help us to have access to her Majesty to the end to become suiters to her for the same.

For divers have been imprisoned for suing ordinary Actions and Sutes at the common Law until they have been constrained to leave the same against their wills, and put the same to order, albeit Judgment and Execution have been had therein to their great losses and griefs.

For the aide of which persons, her Majesties Writs have sundry times been directed to divers persons having the custody of such persons unlawfully imprisoned, upon which Writs no good or lawful cause of imprisonment hath been returned or certified: whereupon according to the Laws they have been discharged from their imprisonment.

Some of which persons so delivered have been again committed to prison in secret places, and not to any common or ordinary prisons, or lawfull officer, as Sheriff, or other lawfully authorized to have or keep a Goal; so that upon complaint made for their delivery, the Queens Courts cannot learn to whom to direct her Majesties Writs, and by this means Justice cannot be done.

And moreover, divers Officers and Serjeants of London have been many times committed to prison for lawfull executing of her Majesties Writs sued forth of her Majesties Court at Westminster, and thereby her Majesties Subjects and Officers so terrified, as they dare not sue or execute her Majesties Laws, her Writs, and Commandments.

Divers other have been sent for by Pursuivants, and brought to London from their dwellings, and by unlawfull imprisonment have been constrained not onely to withdraw their lawfull Suits, but have also been compelled to pay to the Pursuivants so bringing such persons great sums of mony.

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All which upon complaint the Judges are bound by office and oath to relieve and help, by and according to her Majesties Laws.

And where it pleased your Lordships, to will divers of us to set down in what cases a person sent to custody by her Majesty, her Council, some one or two of them are to be detained in prison and not delivered by her Majesties Courts or Judges, We think that if any person be committed by her Majesties commandment from her Person, or by order from the Council-board, or if any one or two of her Council commit one for high treason such persons so in the case before committed may not be delivered by any of her Courts without due tryal by the Law, and Judgment of acquital, had.

Nevertheless the Judges may award the Queens Writs to bring the bodies of such persons before them, and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be, then the Judges in the Cases before ought not to deliver him, but to remand the prisoner to the place from whence he came.

Which cannot conveniently be done unless notice of the cause in generality or else specially be given to the Keeper or Gaoler that shall have the custody of such prisoner.

All the Judges and Barons, &c. did subscribe their names to these Articles, T. 34 Eliz. and deliver one to the Lord Chancellor, and one other to the Lord Treasurer, after which time there did follow more quietness then before in the causes before mentioned.

II

LIST OF READINGS IN PRINT OR IN MS.

EDWARD BROOKE, BIBLIOTHECA LEGUM ANGLIÆ (1788) PART II. PP. 191-196

9 Hen. III. Magna Carta c. 28. By Sir Robert Brook, Chief Justice C.P. 2 P. and M. a very ancient and learned reading on this statute, quoted by Lord Coke.1

Carta de Foresta. By George Treherne, Reader at Lincoln's Inn, temp. H. VIII. By Sir Thomas Hesketh.

3 Edw. I. Westm. I. c. I de Pace 14 readings. By Thomas Marrow, Serjeant,' 20 H. VII.

4 Edw. I. de extenta Manerii. By Sir Ant. Fitzherbert,3 Just. C.P 15 Hen. VIII.

13 Edw. I. Westm. II. c. I de donis conditionalibus. Just. C.P. 12 Hen. VII. [should be 6 Ed. IV.]. c. 4. In casu quando vir amiserit, etc.5

Sir Thomas Littelton,* Author of the Tenures.

6

13 Edw. I. Westm. II. c. 12, on Appeals. Richard Littelton, son of Judge Littelton.

1 Co. Lit. 168, 6.

3 These readings, which are not extant in print, are quoted as of great authority by the early writers on the office of Justice of peace, particularly by Lambarde. Copies of them are in several of the public libraries, and among the MSS. of Francis Hargrave, Esq.

There are also extant in MS. by Fitzherbert II readings on the stat. of Marlebridge, 52 Hen. III. V. Cat. MSS. Ang. v II. n. 1947.

4 Pref. to Coke Litt. and Co. Lit. 19a, 39a.

5 Quoted Lit. sect. 481. A MS. in an antient hand writing, containing readings upon this and the greater part of the other chapters of the same statute, is in the hands of the compiler hereof.

6 Pref. to Co. Litt. Daltons Sheriff, 392, 419. Br. Abr. Appell. 125. Extant Harl. MSS. n. 1691.

VOL. V.-32

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