Page images
PDF
EPUB

religion, advanced themselves first above religion and then above God; so we may fear what may in time become of our Laws, when these reverend fathers,1 in whose breasts they are safe, shall leave them to others perchance of more ambition and less faith. But because I assure myself that no soul living will charge his Majesty with any manner of encroachment upon the subjects' rights, I confess I marvel, and some perchance may doubt, why we should be so curious to wrest that right from his hand which all his progenitors have enjoyed hitherto.”

Then, in order to prove the King's right to establish Courts of Equity, after quoting Scripture, and alleging the examples of King Alfred, William the Conqueror, Henry III., Edward III., Edward IV. (who set up the Councils of Star Chamber and the Marches), and Henry VIII. (the last of whom established the Courts of Requests, of Wards and Liveries, and the Council of the North) he proceeds as follows:

"Besides we say that in the King's Prerogative there is a double power : one, which is delegate to his ordinary judges in Chancery or Common Law; another, which is inherent in his own person, whereby he is the supreme judge both in Parliament and all other Courts; and hath power to stay suits at the Common Law ; yea, pro bono publico, to temper, change, and control the same ; as Edward III. did, when, for increase of traffic, he granted juries to strangers de medietate linguae, against the Common Law. Nay, our Acts of Parliament by his sole authority may be mitigated or suspended upon causes to him known. And this inherent power of his, and what participateth thereof, is therefore exempt from controlment by any Court of Law. For saith Britton, lib. 1, 'We will that our jurisdiction be above all jurisdictions in our realm; so as we have power to give, or cause judgments to be given, as shall seem to us good without other form of process, when we may know the true right as judge."

It is difficult to imagine any language more likely to be acceptable to the King and pernicious to his posterity. Let it be admitted that Bacon was sincere; that he did in reality believe, as he asserts, that "the power of the gentry is the chief fear and danger of the good subject" in the Four Shires; that he considered it expedient for the Welsh and English poor, as well as for the Crown, that the Council of the Marches should divert some of the suitors who streamed to Westminster; and that he genuinely feared the "reverend fathers of the Law" and their assaults upon the Prerogative more than any encroachments of the Sovereign on the rights of the people:- still, it seems 1 i.e. the Judges-called, above, "the grave and worthy ministers of justice."

impossible to credit him with common sagacity, much less with prophetic intuition in entertaining these fears and anticipations.

But, even if his anticipation was well founded, that the Royal Prerogative might be hereafter injuriously curtailed by the fears and suspicions of the people, was he not going the very way to realise his own anticipation by deepening old fears and awaking new suspicions? Even supposing that it was theoretically justifiable, was it wise, thus to magnify the Prerogative? Here was a King utterly destitute of tact, of sympathy with the House of Commons, of practical sagacity; replete with bookish theories, and pedantical paper notions about the Constitution, all making for consistent despotism; garrulous, pompous, sultan-like in speech; good-natured, inconstant, and yielding in action; a King who thought himself a second Solomon, and believed himself entitled to the arbitrary powers of a tyrant such as Samuel had foreshadowed in his predictions of the coming line of despots over Israel; a King who had actually attempted to assign to the Court of Chancery the right of determining the validity of elections, and had told the House of Commons to their faces, that he had power to tax the property of his subjects without consent of Parliament.1 On the other side, a Parliament jealous for its privileges, fervent for its rights, recalcitrant against many legal or semi-legal abuses which sheltered themselves under the Prerogative, uneasily conscious that it had lost ground under the Tudors and had let slip some of the safeguards of national liberty, sensitive to the disparagements of bishops and courtiers, excitable and suspicious of the least attempt at royal encroachment, and not unmindful that at their first meeting under their Scotch King (1604) they had been compelled to remonstrate against an unprecedented violation of the most elementary constitutional principles. And around these two antagonists there were gathering clouds ominous of conflict; increase of national expenditure requiring increased taxation; a freer spirit of criticism, which, beginning with things ecclesiastical, passed on to criticise political administration; a general uprising from old feudal bonds, and an inclination (in some minds) towards republican rather than personal Government. Was this a time to rake up every remnant of antique and irregular exercise of the Prerogative in order to flaunt before King and people a power which, unless it could be allowed quietly to die, was obviously destined to be the cause of a contention that must last until one of the two contending parties owned himself vanquished ?

1 Mr. Green (Short History, p. 466) quotes from one of James's speeches in the Star Chamber: "As it is atheism and blasphemy to dispute what God can do, so it is presumption and a high contempt in a subject to dispute what a King can do, or to say that a King cannot do this or that;" and in his True Law of Monarchies, published before his accession to the English throne, James wrote thus: "Although a good King will frame all his actions to be according to the Law, yet he is not bound thereto, but of his own will and for example-giving to his subjects."

How much better-even from the royalist or courtier point of view-to choose a time when deeds and not words might have been employed; to wait for a war or some other emergency when national distractions or national interests might allow the King to exercise the extreme rights of his Prerogative (the establishment of new Courts of Justice, or the suspension of Acts of Parliament, or what not) either without the notice, or with the willing assent of his unsuspecting subjects! The wedge thus silently introduced in time of war might have been left to work its way in time of peace, and a precedent might have been quietly and firmly established for the development of despotism. But Bacon's magniloquent talk could do no good at all. It alarmed the people without strengthening the King.

If Bacon's contention was justified, if the King had power to establish any Court he pleased in any part of his kingdom, with equitable or Star-Chamber jurisdiction; 1 power to stay suits at will; to temper, change, and control the Common Law; to suspend Acts of Parliament by his sole authority; and if this power was inherent in the King's person by "the ordinance of God," then no promises that James might make to abstain from establishing such Councils hereafter could possibly bind his successor; and the people had no security that, under cover of opportunities afforded by war or civil disturbance, their liberties might not be summarily suppressed. Their only bulwark, the power of the purse, was in danger of being wellnigh levelled by the royal claim to impose taxes upon merchandise -a claim which both now and afterwards Bacon maintained to be strictly legal. Common patriotism might have protested at leaving the liberties of the English nation thus unprotected and at the mercy of the Sovereign; common honesty might have revolted at this violation of the Spirit of Magna Charta, under pretext of isolated and exceptional precedents mostly derived from troubled times, or from the period of national lassitude consequent on the Wars of the Roses; common sense, without any claim to prophetic foresight, might have anticipated that the straining of the Royal Prerogative, in times of freer thought and growing demand for liberty, must necessarily end in bringing King and people into a fatal collision. But with Francis Bacon none of these three considerations had sufficient weight to prevent him from advocating a course which could not but ultimately lead to conflict and revolution, but which had the immediate effect of strongly recommending him to the King and facilitating his own advancement.

1 In Private, Bacon seems to have entertained the question whether the exceptional Courts might not have their jurisdiction limited by Parliament. See his note in the Commentarius Solutus, "To advise some course for the Council of the Marches and the North, for the Admiralty, Court of Requests, and the Ecclesiastical Jurisdiction: query, of limitation by Parliament." - Spedding, Life, iv. 55.

2 Mr. Heath, asserting, on the authority of Carte, Hist. Eng. iii. 794 (Spedding, Works, vii. 582) that he did make such a promise, adds: "But I think I have seen a denial by the King that his speech was so explicit."

§ 20 BACON'S REMEDY AGAINST THE COMING REVOLUTION

Bacon's remedies against the coming Revolution, so far as we can judge from the Commentarius Solutus, appear to have been three: 1st, the suppression of the lawyers and the exaltation of the King's "summary justice," by which means the Sovereign was to conciliate his subjects, and especially the poor, administering justice more cheaply, speedily, and impartially than at present; 2nd, the acquisition of a permanent royal revenue by means similar to those proposed by Salisbury in the Great Contract; 3rd, the distraction of the popular attention from political and debatable questions by the excitements of foreign

war.

All Bacon's remarks on laws, lawyers, and judges in the Commentarius Solutus tend to the same object, the subordination of the lawyers as a political power; and they show the peculiar and responsible position then occupied by the legal profession.

In the existing relations between the King and his subjects there was then a debatable ground wherein the Prerogative of the former conflicted with the liberties of the latter; and in this field it was scarcely possible for a Judge to decide a special case without modifying and defining for posterity those previously indefinite relations, and to some extent trenching on the functions of a Statesman. Thus in 1606 the well-known decision of "Bates's case" had sanctioned the royal claim to levy Impositions on exports and imports, and the claim sustained by this single decision was maintained for thirty-five years. In our days Parliament can at once rectify, by a new Act, an injury arising from a judicial interpretation of statutes or from the over-riding of statutes by Common Law: but no such power existed then. This unsettled condition of things commended itself to Coke, as being providentially calculated to erect the Judges into a great constitutional Tribunal, whose duty it was to mediate impartially between the King and the people Bacon, on the other side, believing that true statesmanship consisted in the magnifying of the Prerogative, felt that no amount of knowledge of the Common Law of England would ever constitute such a Statesman as he deemed worthy of the name. Against the lawyers therefore, it is part of his policy to be always on his guard, and especially against lawyers of the type of Coke, whom he stigmatizes as "mere lawyers." 1 "Mere lawyers" are to be "disprized;" they are to be kept "in awe," that is, in dread that they may miss promotion, by "not calling Sergeants till Parliament has met:" Bacon proposes to make use of the Archbishop of Canterbury's opposition to the lawyers, in order to bring on a project of reforming the Laws. Elsewhere he mentions his intention of submitting to the King his project for revising the Laws, and apparently (though the language is not quite clear) with some special reference to the royal Prerogative: "for equalling laws, to proceed with my Method, and to shew the King title of Prerogative, as it is done."2 No doubt, in any reform, Bacon could have removed much that was irregular and inequitable ; but there is as little doubt that his reformation would have commended itself rather to the Archbishop and the King than 1 See Gardiner, History, iii. 23-4. * Spedding, Life, iv. p. 94.

L

« PreviousContinue »