least it is an undisputed principle that the King, even though he be personally present in a court of justice, cannot interfere; but that the decision of every cause or motion must be pronounced by the mouth of the judges and not otherwise. The Royal will in matters judicial, like the same will in matters legislative, is not mere personal caprice, but the matured and enlightened judgment of the King acting under a full sense of his responsibilities and after he has called to his aid the practised wisdom of the sages of the law. Thus it was held, in the reign of Richard the Third, that, where an Act of Parliament provided that a delinquent should be fined at the will of the King, the fine must be imposed by the judgment of a court, for " hæc est voluntas regis” viz.—“ per justiciarios suos et legem suam, et non per dominum regem in camera sua vel aliter.”*

The circumstances in which this principle was finally settled occurred in the reign of James the First. There had been a quarrel of long standing between the Ecclesiastical Courts and the Courts of Westminster Hall on the subject of jurisdiction. By a free use of the writ of Prohibition the judges had succeeded in restraining within reasonable bounds the ever-extending claims of the Church. In the time of Elizabeth and still more of James the First the churchmen thought that they saw the promise of happier times; but the operations of their Court of High Commission were relentlessly checked by the formidable Prohibition. Irritated by this constant impediment to his projects, the Archbishop of Canterbury (Bancroft) adopted the expedient of Evocation. He proposed to remove the cause from the tribunal of the King's Bench to the superior wisdom of the King in person. Such a

course was in perfect harmony with King James's views respecting both his official powers and his personal qualifications. Coke, accordingly, and the other judges were summoned before the King to show cause why His Majesty should not withdraw such causes as he pleased from the determination of the judges and determine them himself. With the omission of some references the following is Coke's report of this memorable interview*:

"The Archbishop said that it was clear in divinity that such authority belongs to the King by the word of God in Scripture. To which it was answered by me, in the presence and with the clear consent of all the judges of England and barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminal, as treason, felony, etc., or betwixt party and party, concerning his inheritance, chattels or goods, etc., but this ought to be determined and adjudged in some court of justice according to the law and custom of England; and always judgments are given ideo consideratum est per curiam, so that the court gives the judgment; and the King hath his court, viz.—in the Upper House of Parliament, in the which he with his Lords is the supreme judge over all other judges; for if error be in the Common Pleas that may be reversed in the King's Bench, and if the Court of King's Bench err, that may be reversed in the Upper House of Parliament by the King with the assent of the lords spiritual and temporal, without the Commons; and in this respect the King is called the Chief Justice (20 H. vii. 7A) by Brudnell; and it appears in our books that the King may sit in the Star Chamber, but this was to consult with the justices upon certain questions proposed to them, and not in judicio. So in the King's Bench he may sit, but the court gives the

judgment; and it is commonly said in our books that the King is always present in court in the judgment of law, and upon this he cannot be non-suit; but the judgments are always given per curiam and the judges are sworn to execute justice according to law and the custom of England. And it appears by the Act of Parliament of 2 Ed. III. cap. 9, 2 Ed. III. cap. I., that neither by the great seal nor by the little seal justice should be delayed: ergo, the King cannot take any cause out of any of his courts and give judgment upon it himself; but in his own cause he may stay it, as it doth appear 11 H. 4, 8. And the judges informed the King that no King after the Conquest assumed to himself to give any judgment in any court whatsoever which concerned the administration of justice within this realm, but these were solely determined in the courts of justice; and the King cannot arrest any man, as the book is in 1 H. 7, 4, for the party cannot have remedy given against the King; so if the King give any judgment what remedy can the party have? Vide 39 Ed. III. 14, one who had a judgment reversed before the Council of State; it was held utterly void for that it was not a place where judgment may be reversed. Vide 1 H. 7, 4, Hussey, Chief Justice, who was attorney to Edward the Fourth, reports that Sir John Markham, Chief Justice, said to King Edward the Fourth that the King cannot arrest a man for suspicion of treason or felony, as other of his lieges may; for that if it be a wrong to the party grieved he can have no remedy; and it was greatly marvelled that the Archbishop durst inform the King that such absolute power and authority as is aforesaid belonged to the King by the word of God. Then the King said that he thought the law was founded upon reason, and that he and others had reason as well as the judges: to which it was answered by me that true it was that God had endowed His Majesty with

excellent science and great endowments of nature, but His Majesty was not learned in the laws of his realm of England, and causes which concerned the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of the law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it, and that the law was the golden met-wand and measure to try the causes of the subjects and which protected His Majesty in safety and King was greatly offended and said that then he should be under the law, which was treason to affirm, as he said; to which I said that Bracton saith Quod rex non debet esse sub homine sed sub Deo et lege."

peace: with which the

the law.

§ 4. In the judicial expression of the Royal will there is yet a further limitation. The rule that the will of the King is expressed by the mouth of his judges Judges must does not authorize the King to hear and deter- be known to mine cases by any persons appointed for that purpose and acting in any manner. The structure of the Crown's judicial organs is as precisely settled as the mode of exercising this function. All judicial proceedings must be before the Royal courts as they are known to the law. But" ancient courts ought to be exercised according to the ancient and right institutions."* These courts must therefore be constituted, and must proceed, in the manner which the law recognizes, and not otherwise. Accordingly the Crown cannot, of itself and without the sanction of a statute, create any new court, or change the jurisdiction or the procedure of any existing court, or alter the number of judges in any such court, or the mode of their appointment,

or the tenure of their office. The Chancellor, for example, is appointed by the delivery to him by the King of the great seal, and holds his office during pleasure. But if the custody of the great seal be granted by letters patent for life, as it was to Cardinal Wolsey, the grant will be void,* because "an ancient office must be granted as hath been accustomed." Thus the discretion of the Crown is limited either by the Common Law, in the case of courts of immemorial antiquity, or in the case of courts of recent origin by the Act of Parliament under which they are established. This principle, so far as regards criminal cases, is contained in the declaration of Magna Charta by which the King binds himself not to take proceedings against any person except by the judgment of his peers or the law of the land. It has been contended that these words require not only that the courts which try the King's cases should proceed according to the lex terræ but that they should be such as that law recognizes.+ This construction finds some support in the Act which reversed the attainder of the Earl of Lancaster. That nobleman was in the reign of Edward the Second brought before a sort of court martial appointed by the King for the purpose; was tried in a summary way; and was executed. His attainder was subsequently reversed; and the ground of this reversal was that, in a time of profound peace, when the usual courts were open and ready to administer justice, the Earl had been tried and convicted by an irregular tribunal. Various complaints founded on this principle were made by the Commons against the extension of the Chancellor's jurisdiction, before the place of the Court of Chancery amongst the prescriptive courts of the realm was fully acknowledged. The Petition of Right also condemns + Sullivan's Lectures, 411.

4 Inst., 87.

See 2 Inst., 48.