causes (12 Rep. 82, 84). Next year it was hoped to conciliate him by placing him with six other judges on the commission, which, as they were vaguely assured, had been reformed in divers points. But he refused to sit, saying that he was not acquainted with the new commission, which for aught he knew might be against law. The commission was solemnly read, and was found to be in several respects illegal ; and then all the judges, some of whom before had inclined to accept the position, 'rejoiced that they did not sit by force of it' (12 Rep. 88. As Gardiner points out, ' Bancroft ' in Coke's report should be 'Abbot').
In other ways Coke rendered great service in resisting James's exaggerations of the prerogative. Bate's case, which raised the question of the king's right to put impositions on imported merchandise, did not come before him judicially, but it was reviewed by him in a conference with Chief-justice Popham. Probably the king had sought from them a confirmation of the judgment of the exchequer ; but, if this was the case, he was disappointed. They do not seem to have questioned the actual decision, but they gave no support to Fleming's doctrine that in these matters the king's discretion was unconfined. 'The king,' they resolved, 'cannot at his pleasure put any imposition upon any merchandise to be imported to this kingdom, or exported, unless it be for advancement of trade and traffick, which is the life of every island, pro bono publico' (12 Rep. 33). In his 'Institutes ' he condemned the decision without any qualification (2 Inst. 57). In 1610 a danger not less grave was met still more decidedly. The House of Commons having presented an address to the king, in which they called attention to the increased frequency of proclamations affecting contrary to law men's liberties and property, Coke was sent for to attend the council, and two cases were submitted to him in the hope that he would give legal countenance to the king's proceedings. He was asked whether the king might by proclamation prohibit, first the erection of new buildings in and about London, and secondly the making of starch from wheat. The statute of proclamations having been repealed, this was a claim that by the common law the king might make new laws otherwise than by act of parliament. Coke was strongly pressed by the chancellor and by the others present, including Bacon, to maintain the king's prerogative, but he declined to give an opinion without consulting with the other judges. In the conference which followed it was resolved that the king cannot by proclamation create an offence which was not an offence before ; that the king's proclamation forms no part of the law ; and that he hath no prerogative but that which the law of the land allows him. ' And after this resolution no proclamation imposing fine and imprisonment was afterwards made.' Later instances, however, are common in the seventeenth century; but this conference finally settled the question of legality (12 Rep. 75. It is curious that in Coke's report, while the statute of proclamations is referred to, no mention is made of the repealing statute, 1 Edw. VI, c. 12).
Among the other famous cases of this period was that of the post-nati, involving the question whether or not persons born in Scotland after the union were aliens in England. The judges were consulted on the general question, and the point was afterwards specifically raised in Calvin's case. On both occasions Coke, with the majority of the judges, decided in favour of the view which so alarmed the House of Commons, that a post-natus, being still under allegiance to King James, was a natural-born subject and no alien (7 Rep. I; 2 St. Tr. 559). Lord Campbell, it may be noted, has expressed an opinion that the decision was erroneous (Chief Justices, i. 269. See Isaacson v. Durant, 17 Q.B.D. 54). Among the things observable in this case Coke records ' that no commandment or message, by word or writing, was sent or delivered from any whatsoever to any of the judges ; which I remember for that it is honourable for the state, and consonant to the laws and statutes of this realm ' (7 Rep. 28 a).
Fleming, the chief justice of the king's bench, died in August 1613. Partly to secure his own advancement, partly to remove Coke to a position in which he would come less seldom into conflict with the king and his advisers, Bacon proposed that Coke should be transferred to the vacant place. The income was less than that of the other chief-justiceship, but the dignity was higher (see, however, Somers Tracts, ii. 382, where Coke's annual fee as chief justice of the king's bench is given as 224l. 19s. 9d., with 33l. 6s. 8d. for circuits; while the chief justice of the common pleas had only 161l. 13s. 1d., and 33l. 6s. 8d.) 'My lord Coke,' said Bacon, laying his reasons before the king, 'will think himself near a privy councillor's place, and thereupon turn obsequious. . . . Besides the remove of my lord Coke to a place of less profit (though it be with his will) yet will be thought abroad a kind of discipline to him for opposing himself in the king's causes, the example whereof will contain others in more awe' (Spedding, iv. 381). The advice was
