Page:Harvard Law Review Volume 32.djvu/484

448 448 HARVARD LAW REVIEW was more purely wrought and finely fashioned than elsewhere; and since it is clearly unintelligent to make a man judge in his own cause, since, moreover, the royal judges do not, in legal fact, con- ceal the royal presence, there seems to have been no period of his- tory in which the King could be sued in the courts of the realm. It is difficult to say at what precise period this non-suabiHty of the Crown passed into infallibiHty. The Tudor despotism seems to have been that critical period of transition when learned lawyers like Plowden will talk what Maitland has aptly termed *'meta- physiological nonsense; " ^ and the aggressive Coke will dispatch the Crown into a corporation sole of a kind but rarely known to pre- vious EngHsh history.^ Not, indeed, that men are not troubled by the consequences of that dual personality the Tudor lawyers called into being. Thomas Smith did not write aimlessly of an English commonwealth;^ and that public which the royal bur- glary of 1672 forced into responsibility for the National Debt shows, clearly enough, that the fusion of Crown and state is not yet complete.^ Even in the nineteenth century Acts of Parlia- ment will be necessary to show that behind the robes of a queen can be discerned the desires of a woman. ^ It is probable that the reemergence of the dogma of divine right exercised a potent influence on this development. Cer- tainly men could not have encountered the speech of James and his eager adherents, or the logic of that continental absolutism which is merely summarized in Bossuet, without being affected by them. Even when the Revolution of 1688 destroys its factual basis, it has become capable of transmutation into a working hypothesis of government; and anyone can see that Blackstone, who best simis up the political evolution of this creative period, writes " Crown " where the modern pohtical philosopher would use the term "State." The vague hinterland of ancient prerogative went also, doubtless, to show that the Crown is a thing apart. The privilege of the King's household leaped to the eyes.^. His ' 3 Collected Papers, 249. » Ibid., 253. • I Macaxjlay, History op England, Everyman's edition, 1 70. ^ 25 & 26 Vict. c. 37 (1862); 36 & 37 Vict. c. 61 (1873). 8 2 Co. Inst. 631, 4 ibid., 24; Rex v. Foster, 2 Taunt. 166-67 (1809); Rex v. Moul- ton, 2 Keb. 3.
 * Ibid., 244-45.