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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."

1

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.

Ir 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. 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 abili

ties would have been distinguished under any form of govern

OF THE HOUSE OF COMMONS.

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ment: but the omnipotence of the arrogant and ostentatious Buckingham under Charles I., and the fruitless efforts of successive Parliaments to bring him to justice, are a convincing proof that the Constitution did not yet afford a safeguard against the influence of an unworthy favorite.1

The English government was then in fact what it is still sometimes called, a limited monarchy; the king being the motive and guiding power, and Parliament a check or restraint that kept the royal prerogative in bounds and prevented it from encroaching too far on individual right. If Charles had been an abler man, or less arbitrary as a king, the change from the old to the new order of things might have been indefinitely postponed, or have turned in favor of the prerogative. But when the resentments which the despotic rule of Strafford had inflamed culminated in a bill of attainder, the king was wanting to a servant who had been thorough to his master, and the House of Commons obtained in the conviction and death of the minister an ascendency that has not since been successfully disputed by the Crown. The Restoration was, it is true, followed by an interregnum, during which either principle might seem to be on the eve of gaining the upper hand; but when the conflict between the king and Parliament was pushed to an issue by James II., the monarchy was again worsted in the struggle, and ceased to be a controlling element in the English government. His own abilities and the critical state of the times gave William III. a predominance which no sovereign of England has since enjoyed, but the accession of the Hanoverian line inaugurated the aristocratic commonwealth that has since, with an increasing measure of popular influence, borne sway in England. It is true that George III. had during the greater part of his reign no inconsiderable share of the authority which is commonly ascribed to monarchs; but with this exception, the power of the Crown has during the last hundred and eighty years been exercised by an executive council chosen by the House of Commons. Though bearing

1 2 Parliamentary History, 404, 419.