themselves next called upon to resist the encroachments of absolute government. The House of Commons was their most convenient organ. By reading history backward we can see that it was of immense advantage to this party that the blunt fanatical Stuart kings boldly put forward their theory of divine right. There had been no time in the remote past when there was any sense in maintaining a persistent theory about the powers of either the House of Commons or the Crown. When Henry VIII. wrote to the Pope that the House of Commons was accustomed to discuss and decide things freely, he was doubtless playing his old trick of making the Commons a scapegoat for those acts of his own which were obnoxious to the Pope. When, in the time of the Wars of the Roses, Fortescue recorded the remark that the "kynge may not rule his peple bi other lawes than such as thai assenten unto," he was indulging in mere academic talk. Neither in his nor in any previous day had there been any definite theory of the powers of different governmental agencies which either controlled or greatly influenced the politics of the day. But when in Scotland a divinely ordained republican Kirk was met and restrained by a divinely ordained king, then there were injected into politics conflicting theories of government which, independently of any definite governmental policies, did influence and did tend to dominate politics. It is not possible to understand the modern English Constitution unless we see clearly that this was something new in English history.

Without these rigid contradictory theories it is difficult to see how the House of Commons could ever have been advanced to the practical attainment of all that the Presbyterian Assembly claimed. Without the martyrking, on the other hand, it is not likely that the promotion 1 Plummer's Fortescue on the Gouvernance of England, p. 109.

of the House of Commons would have been accompanied by the careful preserving of all the consecrated forms of monarchy. In the time of Elizabeth the upholders of the privileges of Parliament had much difficulty in answering the defenders of the Crown. The Queen did nothing which was not according to the customs of former monarchs. Even the Lancastrians imprisoned members of Parliament for making objectionable statements. In still earlier times an archbishop risked his head when he dared to oppose the King's will in the national assembly. The most effective answer which the parliamentary party could make to the court lawyers was to shout the word "Privilege" in louder tones and to threaten to make the business of government more disagreeable if their wishes were not respected.

But when James and Charles put forth their theory of divine right, they shocked the sensibilities of the English nation. This doctrine was not only new; it could easily be made to appear both dangerous and revolutionary also. It seemed to mean that the King could rule without a Parliament, and the statement of such a theory made it possible for the first time for parliamentary lawyers to appeal with effect to English history. Without such an issue the parliamentary party was weak, especially so in its appeal to history; with such an issue, the party was strong, not only in the prejudices of the English nation against foreign, innovating kings, but also in its appeal to history. Had ever a king ruled in England who was not crowned by Parliament? Had not Parliament again and again removed one king from office and set up another? Did not these very Stuart kings rely in large part for their title to the throne upon the acts of Parliament ? With such an issue men were forced to think of Parliament as an institution apart from the King. When this analysis was for the first time forced into the minds of

Englishmen, there ensued a strong natural tendency to look upon the elected part of Parliament as peculiarly representative of the English nation.

To understand the modern Constitution it is necessary to perceive that both the theory of the Stuart kings and that of the opposing parliamentary party have been preserved and harmonized the one with the other. Not only have the consecrated forms of monarchy survived, but those forms still hold important relations to the working of the Cabinet. And in the office of Prime Minister absolute rule may be seen working in harmony with a democratic House of Commons. Hence the Stuart theory of monarchy may be said to have contributed not only form but substance as well to the present Constitution.

CHAPTER XXII

THE

THE EARLY STUARTS AND THE COURTS

HE state of the judiciary in the time of James I. throws light on the modern Constitution. On his way to London to be crowned, James ordered a thief to be hanged without benefit of judge or jury. This may have been an expression of the exuberant spirits of the new sovereign in view of the summary powers of the kingship to which he had fallen heir. The incident shows, however, that the new king did not appreciate the reverence for law and its forms which had grown up in England. But in dealing with the high courts of the realm James appears to better advantage. Failing to get adequate supplies from his first Parliament, he followed the example of former kings and collected a duty on currants. A merchant by the name of Bates refused payment, and his case was brought before the Court of the Exchequer, where he pleaded that such an impost was illegal without the sanction of Parliament. The judges decided in favour of the King, and in the arguments accompanying the decision they touched upon a subject of great difficulty from the standpoint of the parliamentary party. To the King, they said, belonged the responsibility of governing; and in the nature of the case government involves a large amount of discretionary power. The judges in Bates's case drew, a distinction between private 1 Charles Knight, The Popular History of England, Vol. III., p. 308.

rights, where common law and parliamentary action should prevail, and acts for the public good where the absolute power of the King should prevail. According to this theory, the absolute power of the King extends to all matters of foreign relations. The collection of a duty upon a foreign import pertains to foreign affairs and is hence a part of the discretionary power of the King. We know how, in later times, the parliamentary party solved this difficulty by taking out of the hands of the monarch the responsibility of governing. In the time of James no one had dreamed of such a solution. Had James I. and Charles I. only been moderate and husbanded those manifest advantages which custom had conceded, it would have been better for their cause.

Even before the decision in Bates's case James had got the better of his Parliament by means of the courts. He was anxious to have his Scottish subjects naturalized as subjects of England. Parliament refused to comply with this wish. He then presented a case to the courts in which an infant, born in Scotland after the accession of James to the throne of England, claimed a right to inherit property as an English subject. The judges decided in favour of the infant. This decision had the effect of naturalizing all Scottish subjects of the King born after his accession to the throne of England. Thus the King secured through judicial decision a law which Parliament had refused.

On

Later, James suffered a rebuff at the hands of the Chief Justice, Sir Edward Coke. The King proposed to regulate by proclamation the building of houses in London and to forbid the manufacture of starch from wheat. consulting the Chief Justice and certain other judges as to the legality of such proclamations he received from them a clear and emphatic opinion to the effect that the proposed proclamations were illegal; that the King could