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The debate then turned to the High Commission, where Ellesmere received little satisfaction. The judges still called for specific instances of the prohibitions complained of; and said that, until they had in their hands the very words objected to, they could not defend themselves. From his wide reading, Coke was able to produce a case or two on the newer objections raised; and cited for one, Atmer's case, where it was said the Commission could not punish a man for working on a holiday. Whereupon, Ellesmere remarked, with ill-concealed scorn, that "it was a pretty case, and proceeded to quote other precedents out of his own memory to support the right of the Commission to impose fine and imprisonment. The conference bore little fruit, and was only a continuation of the earlier phase which was now passing.
The continued aggressions of the judges in granting such extreme prohibitions, and the failure of the Lord Chancellor to convert them to his view of the question, brought the contending -parties once more before the King. James had
much confidence in his own learning, and especially in his forensic • powers; and thought he would be able to argue the obstinate
lawyers into acquiescence in his position. He reckoned without his host. Nevertheless, the gathering which assembled at Whitehall on May 24, 1609, was imposing enough to have shaken the resolution of a strong man.? James sat as usual in the chair of state, with the Council on one side of him, and the bishops, headed by Bancroft, on the other. In front of them stood the two Chief Justices, Coke and Fleming, with two of their associates; and, a little at one side, were several of the ecclesiastical judges and civilians, whom Bancroft had long been preparing to plead in behalf of the Church. The King first expounded well the ideas which had gained such an ascendency over his mind: his determination to allow no innovation in the realm ; his desire to be impartial and to give each court the exact jurisdiction to which custom and law
read them and try to enforce his deci lay too much stress on his own part, sion, that day would mark the down and too little on any one else's; but fall of judicial independence.
Cæsar's notes are so meagre that we 1 Our accounts of this debate are must perforce use Coke. The Chief fragmentary: Cæsar tired of Justice was undoubtedly a truthful writing out precedents and took only man; but his prepossessions and prethe heads of the arguments. Coke's judices were so strong that he was account in XIII Reports, 37-47, re simply incapable of understanding lates very clearly only to the first the position of the churchmen or of day's session, and seems, as usual, to doing them justice.
entitled it; and his intention that none of them should encroach upon the other. As the head of justice immediately under God, and as protector of the rights of his people, his duty required him to put an end to this harmful clash of jurisdictions. The chief difficulty was, he continued, a perfectly practical question: if a parson sued his parishioner in the ecclesiastical court for tithes and the latter alleged a modus decimandi, in which court should that case be tried—the ecclesiastical or the temporal? He commanded the judges to justify their position. Bancroft, however, knew well that nothing could result from such a demand but a repetition of the statements which would allege much and explain little. Coke had turned the tables upon him, and if a speedy settlement was desired, there was nothing to do but accept the situation. He therefore asked leave to speak first on behalf of the Church. He brought into prominence the argument from expediency: that a jury trial was not a proper method of deciding tithe cases, because no twelve men could be found in a parish who were really impartial, and, indeed, who were not themselves as vitally affected as the defendant. In many cases, the modus decimandi in question was a uniform rate for the whole parish, and the delivery of such a case to a jury for decision was nothing less than allowing them to adjudicate their own suit. If no such difficulty appeared, and the custom concerned but one man, experience showed that laymen were chary of giving a verdict in favour of the vicar, partly on account of general prejudice and partly because they were afraid that their verdict might some day be a precedent which would militate against them. The Archbishop laid great stress upon the well-known fact that juries were often corrupt and said that he could not agree to deliver the question which concerned the whole future of the Church to a dozen ignorant and possibly venal men.'
Dr. Bennet, the Judge of the Prerogative Court, followed him
1 Fulbecke, a common lawyer, in sinnes, ... if any prohibition conhis Conference of Laws, puts these cerning Tythes come to be tried by words into the mouth of the Parson them, ar as sure to passe against the in his dialogue: “We parsons,
Parson, as an old chimney is sure said he, “have much impediment by of blacknes— But let
any matter Prohibitions, and many times wrong, come to be tried touching common, when they come to triall; for the which concerneth themselves and their countrie people which are the Iurors, owne profit, they will as surelie go who have no more desire to aie their
with the comoner as the cloudes goe Tythes then the Diuel hath to love with the northeast wind.'' his entercourse with seauen deadly
with a long speech against the granting of any prohibitions at all. He took up Cowell's and Ridley's contention, and said that, since the two jurisdictions were united in his Majesty, the old power ought to be abolished which had been readily countenanced in the common law courts as long as they needed to defend themselves from the Papacy. If trouble came, let the judges take their grievance to the King and rest assured that his energy and discretion would restore to them their rights. Turning to the question of fact, he declared that there could be no doubt but that the ecclesiastical courts ought to decide the general status of tithes, where the issue was whether they were due or not from a particular individual. No one could deny that all these other points were incidental parts of that one main issue; and therefore, he concluded, let the court, which indisputably ought to try the main issue, try all its adjuncts and incidents. He warmly denied the judges' oft-reiterated charge that the ecclesiastical courts would not receive a plea of modus decimandi. He declared that they always allowed a suitor to make the plea, but required him to prove it before they accepted it; and that he could see neither equity nor justice in crediting a bare statement which was so palpably to the interest of the man who made it." Coke said, in his account, that he omitted much of Bennet's speech, because it was “impertinent." After Dr. Bennet spoke Francis Bacon, “and," remarks Coke, "in effect said less than Dr. Bennet said before.”
Thus assailed, Coke shifted his ground, and in his reply attempted to make clear the new footing upon which he wished to place the whole argument. The civil lawyers had steadily considered it an open question, upon which no irrevocable decision had as yet been made, and where, by mutual forbearance, some workable compromise might be arranged. The Chief Justice now stated that the issue had been entirely misapprehended. It was not a matter “in statu deliberativo, but in statu judiciali," and was not in the least “to frame or devise new laws, but to inform your Majesty what your law of England is." There was in reality, he went on, no difficulty not already settled by the law clearly
1 See the Articuli Cleri, art. XV, modern student, the ecclesiastical which declared the suggestion to be courts had behind them not only “notoriously false.'' Nearly all the equity, but also the great bulk of tracts of the time take the same posi the common law precedent. tion. It must be confessed that, to a
and properly, so as to fit all circumstances and heal all contentions, provided only the decision might be found and accepted. The judges had laboured hard, had turned many times the pages of their books of precedents, and had at last found the remedy which would infallibly produce peace and harmony. They were unanimously agreed, said he, that the trial de modo decimandi ought to be by the common law, by a jury of twelve men; and in affirmaţion of that decision he would be able to cite the common law, the statutes, and "infinite judgments and judicial proceedings long times past, without any impeachment or interruption." Here was indeed a change in the situation! What purpose was there in all these debates, if the solution not only existed, but had already been found!
The debate which followed ranged over a variety of subjects, that were successively treated in much the same way, until the disputants came to prohibitions and technicalities, and there tarried. Every question taken up was of long standing, and was not brought by the debate any nearer settlement. Despite the fact that it was fully four years since the Articuli Cleri had been issued, and no less than ten years since the bishops broached their complaints in 1598, (during all which time the discussion had been seriously maintained) the debates had not yet drawn away from those elementary matters which had developed from the real divergencies which lay deeper in the intricacies of the problem. Even after debates in November and a conference in May, and a great study of the records, the argument still ranged a wide field, where technicalities and precedents with varied solutions and refutations were still numerous, and were pursued apparently as ends in themselves. Nor had the element of personal recrimination been as yet exorcised. Every one thought that his own arguments were so convincing, and so unanswerable, that he could not fail, if he could once be heard. The researches of the Archbishop and of the Chief Justice had rendered each confident that this time he could crush his adversary upon technical points alone. Of course, the real issue was, as to whose interpretation was to be authoritative; who was to prevail among the interpreters? This, however, was a constitutional issue of the first magnitude; and contained wrapped up in one phrase, -the relation of the church courts to the common law courts; the definition of the royal prerogative, and the attitude of the judges
toward it; the legal status of a statute; the position and authority of Parliament; and much more which was not directly and specifically considered until the Parliamentary struggles of the reign of Charles I.
James grew tired of the wrangling and the repetition of so much which had already been said, and declared that Coke had not as yet satisfied him. He would maintain the common law, he added, and would give its judges as much respect and honour as any of their predecessors had had; but he wished them to confer again with each other, and to keep within their own limits, “without vexation and molestation done to his subjects and without delay or hindering of justice.” He concluded that “he saw much endeauor to draw water to theyr seuerall mills, and therefore aduised them to think among themselves of some moderate course wherin the goode of the subject might be more respected then theyr particular iurisdictions."1 And so the debate was postponed till after Trinity Term.
i Carleton to Edmonds, Stowe MSS., 171, f. 183 holograph.