his act under the protection of that pretended command. No such command is a command of that nature which the law recognizes as binding upon the subject. The person to whom it is given consequently acts at his own peril; and is liable to the Royal displeasure and all its consequences for his breach, if there be any, of the true and real commands of the King.

Legal analogies to specific expression of Royal will.

§ 5. In this requirement for the Royal will of certain exclusive modes of expression, differing in each case according to its circumstances, there is nothing unusual or contrary to the analogies and known principles of other portions of our law. The doctrines of preappointed evidence furnish no inconsiderable part of our daily practice. If a subject desire to marry, he must express his wishes in the manner and at the place and at the time that the law prescribes. If he desire to settle his lands upon his intended wife, he must for this purpose execute a written instrument under seal. If he desire to regulate his affairs in the event of his death, his Will, as it is emphatically termed, is evidenced by a somewhat complex process most rigorously defined. If he have dealings with his neighbours, some of his contracts must be under seal; others, although not requiring the use of a seal, must be in writing; while others require neither of these formalities. In official affairs the same. principle is still more distinctly pronounced. No minister of state or other public officer feels bound by a mere casual observation, but requires as the expression of his official will a letter from the department, in other words a deliberate intimation of his purpose written under the full sense of his responsibility and duly recorded in his office for future reference. A judge is not bound by any opinion that, when not on the bench, he may express. Even the observations

which he may make in deciding any case, if they be not essential to his decision, are regarded as extra-judicial and unauthoritative. The confession by an accused person of his guilt is not conclusive against him, but must be corroborated by external evidence. Yet if the same person, when arraigned in open court with all the solemnities that attend a trial, plead guilty, no further proceedings are required to enable the judge to pronounce his sentence.

§ 6. This view of our Constitution serves to explain some portions of our history that have sometimes been

disputed or misconstrued. With its assistance Explanation

Parliament.

we can discern the real character of the contest of contest between the with the Stuarts, and the different aspects in Stuarts and which the questions then in dispute presented themselves to the opposing parties. At the end of the sixteenth century the conditions under which the Royal powers of legislation could be exercised were sufficiently ascertained, and the independent action of the various courts was established. But in all matters of administration the authority of the King's personal will was not only undisputed, but was daily becoming more pronounced and more inclined to transgress the limits of legislation and judicature. Various circumstances combined in the sixteenth and seventeenth centuries to raise throughout Europe both the powers and the pretensions of Royalty. From these influences England was not free. Henry Tudor was one of the tres magi whose state craft was the admiration of their contemporaries. There were also local causes in England which powerfully contributed to the same result. Not more than twenty-nine lay peers, the sole survivors of their fratricidal strife, responded to the parliamentary summons of the victor of Bosworth. His son swept from their places one whole branch of the

spiritual peerage, and swelled his patronage with their spoils. Almost the first measure of King Henry the Seventh was to obtain for his Council more ample powers for the repression of discords that the arm of ordinary justice was too feeble to control. The bulk of the people, harassed and interrupted with long-continued disturbances, joyfully welcomed a strong government, and only saw in every stretch of prerogative a new victory of their champion over lawlessness and oppression. Thus all the powers of the state were brought under the immediate influence of the Crown. The House of Lords was filled with new creations, and the remnants of the old baronage soon found the prudence of siding with a King from whom there was both much to hope and much to fear. The imperfect procedure of that age, more than any dishonesty of the judges, gave to the Crown in all criminal cases a fearful advantage. The ample domains of the Crown, and the forfeited lands of the Church, afforded a ready means of rewarding a faithful servant. The influence which the barons had formerly exerted over the House of Commons passed with their fall almost insensibly to the King." The great religious parties into which the nation was divided vied with each other to obtain the powerful aid of the Royal support; and when the Church of England was thoroughly established, its bishops became the most zealous partisans of the Crown. The prerogative was carried to no inconsiderable height, yet with the hearty approbation of the great mass of the people, by the great Tudor Queen. On her death, however, her sceptre passed to a successor whose personal qualities were very different.

There were two circumstances that from the outset affected the history of James Stuart and his descendents.

*See Mr. Sanford's Studies of the Great Rebellion, c. I.

His title to the throne of England was one by which, as it has been justly said,* no subject in his dominions could have recovered an acre of ground. In the execution of a power conferred on him by Act of Parliament, Henry the Eighth had made provision for the succession to the throne after the failure of his own descendents. According to his testament, the descendents of his younger sister Mary Brandon were entitled to the throne. According to the ordinary rules of descent, and in the absence of any such instrument, James Stuart, the great grandson of Henry's elder sister Margaret, was the next heir. Sixty eventful years had elapsed since the execution of that will. Political reasons rendered the accession of the Stuart line very desirable, and the descendents of the Duchess of Suffolk had fallen on evil days and evil tongues. But although the testament of Henry the Eighth was tacitly set aside, the persons entitled under it were still living; and the pride of the court could ill endure a defective title. It was, accordingly, the favourite court doctrine that the late King's testament was ultra vires; that Parliament had no power to alter the succession; that the descent of the Crown was immutably fixed, and could not be affected by any human power. Nor were there wanting authorities, as we shall presently see, to support this view, or to uphold the Common Law against any statutory derogation. Thus the doctrine of indefeasible prerogative and succession was settled as the shibboleth of court favour and preferment; and the consciousness of weakness led to its constant and exaggerated inculcation. While the court lawyers found it their interest to support this doctrine, the court divines were not backward in lending to it their aid.

Hallam's Const. Hist., i. 289.

The

They hastened to account for the legal proposition which the lawyers had laid down. They supplied a theory for the statement of legal fact. The Royal right was indefeasible because it was divine. The King was the viceroy of the Almighty upon earth.. Perhaps, indeed, he was something more. The apotheosis of the Cæsars might have suggested the apotheosis of the Stuarts.* To King James, persecuted from his childhood by the overbearing and plain-spoken Scottish clergy, this change in the ecclesiastical tone was inexpressibly grateful. The insolent presbyters of Edinburgh + had called him opprobrious names from their pulpits, and in his palace; had spoken of him as one possessed of seven devils; and had publicly prayed for his hardness of heart. polished prelates at Hampton Court listened on their knees to the words of wisdom that fell from the Royal lips; and, like the flatterers of Herod, murmured that it was the voice of a God and not of a man. It was little wonder, then, that "no bishop no king" became a received maxim with the Stuarts. In this state of political fetichism the old doctrines of a limited prerogative were quickly exploded. The laws were the King's laws; the courts were the King's courts. Affairs of state were obviously the King's exclusive concern. What the King had given the King might take away. What the King commanded was without hesitation to be done. It was not only unlawful but it was impious to disobey, far more to resist, the most tyrannical mandate. These pretensions, not unsupported by lawyers and judges and warmly applauded. by bishops and Oxford divines, coloured the whole history

* See Spence's Equit. Jur. 125, note e.

+ See the authorities cited in Buckle's History of Civilization, ii. 253, et seq.

Gardiner's History of England, i. 172.