The claims of the Tudor and Stuart monarchs to unrestricted state power were repudiated by judges who held that the Crown had only those prerogatives which the law accorded it. The residue of authority which this has afforded the Crown and its ministers has nevertheless remained a controversial source of state power.
The throne and the lions
If anyone imagines that judges overreaching themselves and interfering in politics is a complaint confined to modern judicial review, they need look no further than Bacon's essay “Of Judicature”, published in 1625.
“Let judges also remember,” Bacon wrote, “that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.”
Much of the history considered in this book begins in Bacon's working lifetime, between his call to the Bar by Gray's Inn in 1582 and his disgrace and demotion from the chancellorship in the early 1620s. It is a history which not only explains why Bacon wrote what he did about the proper place of the judiciary but also helps to explain why critiques continue to be directed at what is conventionally dubbed judicial activism.
Public law, as Bacon pointed out, has a proper sphere of operation which does not include the business of government. What Bacon was also taking care to point out, however, was that the state itself must operate within the law: that was the principle which the judicial lions were there to guard, and it is why he went on to say:
Let not judges also be so ignorant of their own right as to think there is not left them, as a principal part of their own office, a wise use and application of laws.