face, to proceed or declare against any the greatest peer or subject of the kingdom; and not only any subject in particular, but any body of subjects or persons, were they judges, or were they of an upper or lower house of parliament, in case they exceed the limits of their authority, or took any thing from his majesty's royal power or prerogative; and so concluded, that this challenge, and that in his majesty's presence, was a wrong to their places, for which he and his fellows did appeal to his majesty for reparation. And thereupon his majesty did affirm, that it was their duty so to do, and that he would maintain them therein, and took occasion afterward again to speak of it; for when the lord chief justice said he would not dispute with his majesty, the king replied, That the judges would not dispute with him, nor his learned counsel might not dispute with them: so, whether they did well or ill, it must not be disputed. After this the lord chancellor declared his mind plainly and clearly, that the stay that had been by his majesty required, was not against the law, nor a breach of the judges' oath, and required that the judges' oath itself might be read out of the statute, which was done by the king's solicitor, and all the words thereof weighed and considered. Thereupon his majesty and the lords thought good to ask the judges severally their opinions; the question being put in this manner; Whether, if at any time, in a case depending before the judges, his majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the mean time, they ought not to stay accordingly? They all, the lord chief justice only excepted, yielded that they would, and acknowledged it to be their duties so to do; only the lord chief justice of the king's bench said for answer, that when the case should be, he would do that which should be fit for a judge to do. And the lord chief justice of the common pleas, who had assented with the rest, added, that he would ever trust the justice of his majesty's commandment. After this was put to a point, his majesty thought fit, in respect of the farther day of argument, appointed the Saturday following for the commendams, to know from his judges what he might expect from them concerning the same. Whereupon the Lord of Canterbury breaking the case into some questions, his majesty did require his judges to deal plainly with him, whether they meant in their argument to touch the general power of granting commendams, yea or no? Whereupon all the said judges did promise and assure his majesty, that in the argument of the said case of commendams, they would speak nothing which should weaken or draw into doubt his majesty's prerogative for granting of them; but intended particularly to insist upon the points of lapse" and other judicial points of this case, 66 which they conceived to be of a form differing from all other commendams which have been practised. The judges also went farther, and did promise his majesty, that they would not only abstain from speaking any thing to weaken his majesty's prerogative of commendams, but would directly and in plain terms affirm the same, and correct the erroneous and bold speeches which had been used at the bar in derogation thereof. Also the judges did in general acknowledge and profess with great forwardness, that it was their duty, if any counsellor at the law presumed at any time to call in question his majesty's high prerogative, that they ought to reprehend them and silence them; and all promised so to do hereafter. Lastly, the two judges that were then next to argue, Mr. Justice Dodderidge and Mr. Justice Winch, opened themselves unto his majesty thus far; that they would insist chiefly upon the "lapse," and some points of uncertainty, repugnancy, and absurdity, being peculiar to this commendam; and that they would show their dislike of that which had been said at the bar for the weakening of the general power; and Mr. Justice Dodderidge said he would conclude for the king, that the church was void and in his majesty's gift; he also said that the king might give a commendam to a bishop either before or after his consecration, and that he might give it him during his life, or for a certain number of years. The judges having thus far submitted and declared themselves, his majesty commanded them to keep the bounds and limits of their several courts, not to suffer his prerogative to be wounded by rash and unadvised pleading before them, or by new invention of law; for, as he well knew the true and ancient common law is the most favourable for kings of any law in the world; so he advised them to apply their studies to that ancient and best law, and not to extend the power of any other of their courts beyond their due limits; following the precedents of their best ancient judges in the times of the best government; and that then they might assure themselves that he, for his part, in his protection of them, and expediting of justice, would walk in the steps of ancient and best kings. Whereupon he gave them leave to proceed in their argument. When the judges were removed, his majesty, that had forborne to ask the voices and opinions of his council before the judges, because he would not prejudicate the freedom of the judges' opinion, concerning whether the stay of proceeds, that had been by his majesty required, could by any construction be thought to be within the compass of the judges' oath, which they had heard read unto them, did then put the question to his council; who all with one consent did give opinion, that it was far from any colour or shadow of such inter pretation, and that it was against common sense | Reasons why it should be exceeding much for his to think the contrary, especially since there is no G. Cant. Tho. Ellesmere, Canc. Th. Fra. Bacon. A TRUE REMEMBRANCE OF THE ABUSE I RE majesty's service to remove the LORD COKE from the place he now holdeth,* to be Chief Justice of England, and the attorney‡ to succeed him, and the solicitors the attorney. FIRST, It will strengthen the king's causes greatly amongst the judges: for both my Lord Coke will think himself near a privy counsellor's place, and thereupon turn obsequious; and the attorney-general, a new man, and a grave person, in a judge's place, will come in well to the other, and hold him hard to it, not without emulation between them, who shall please the king best. Secondly, The attorney-general sorteth not so well with his present place, being a man timid and scrupulous both in parliament and other business, and one that, in a word, was made fit for the late lord treasurer's bent, which was to do lit CEIVED OF MR. ATTORNEY-GENERAL PUBLICLY IN THE EXCHEQUER THE FIRST DAY OF TERM; FOR THE TRUTH WHEREOF I RE-tle with much formality and protestation: whereas FER MYSELF TO ALL THAT WERE PRESENT I MOVED to have a reseizure of the lands of George More, a relapsed recusant, a fugitive, and a practising traitor; and showed better matter for the queen against the discharge by plea, which is ever with a "salvo jure." And this I did in as gentle and reasonable terms as might be. Mr. Attorney kindled at it, and said, "Mr. Bacon, if you have any tooth against me, pluck it out; for it do you more hurt than all the teeth in head will do you good." I answered coldly in these very words; Mr. Attorney, I respect you: I fear you not: and the less you speak of your own greatness, the more I will think of it. your He replied, "I think scorn to stand upon terms of greatness towards you, who are less than little; less than the least ;" and other such strange light terms he gave me, with that insulting which cannot be expressed. Herewith stirred, yet I said no more but this: Mr. Attorney, do not depress me so far; for I have been your better, and may be again, when it please the queen. With this he spake, neither I nor himself could tell what, as if he had been born attorney-general; and in the end bade me not meddle with the queen's business, but with mine own; and that I was unsworn, etc. I told him, sworn or unsworn was all one to an honest man; and that I ever set my service first, and myself second; and wished to God, that he would do the like. the now solicitor going more roundly to work, and being of a quicker and more earnest temper, and more effectual in that he dealeth in, is like to recover that strength to the king's prerogative, which it hath had in times past, and which is due unto it. And for that purpose there must be brought in to be solicitor some man of courage his majesty will speedily find a marvellous change and speech, and a grounded lawyer; which done, in his business. For it is not to purpose for the council, which is the active and moving part, put judges to stand well-disposed, except the king's the judges well to it; for in a weapon, what is a back without an edge? tation to the attorney's and solicitor's place, by Thirdly, The king shall continue and add reputhis orderly advancement of them; which two and prerogative; and being stripped of their explaces are the champion's places for his rights pectations and successions to great place, will wax vile; and then his majesty's prerogative goeth down the wind. 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 the king's causes; the example whereof will conkind of discipline to him for opposing himself in tain others in more awe. Lastly, Whereas now it is voiced abroad touchlabour, and canvass, and money; and other pering the supply of places, as if it were a matter of sons are chiefly spoken of to be the men, and the great suitors; this will appear to be the king's own act, and is a course so natural and regular, as it is without all suspicion of these by-courses, to the king's infinite honour. For men say now, the king can make good second judges, as he hath Of chief justice of the common pleas, having been appointed to that office June 30, 1606. He was advanced to that office October 25, 1613. Sir Henry Hobart, who had been appointed attorneygeneral, July 4, 1606. Sir Francis Bacon, who had been sworn solicitor-general June 25, 1607. done lately; but that is no mastery, because men sue to be kept from these places. But now is the trial in those great places, how his majesty can hold good, where there is great suit and means. TO THE KING. IT MAY PLEASE YOUR MAJESTY, My lord did also give his promise, which your majesty shall find in the end of his writing, thus far in a kind of commonplace or thesis, that it was sin for a man to go against his own conscience, though erroneous, except his conscience be first informed and satisfied. The lord chancellor in the conclusion signified This morning, according to your majesty's to my Lord Coke your majesty's commandment, command, we have had my lord chief justice of that until report made, and your pleasure therethe king's bench before us, we being assisted by upon known, he shall forbear his sitting at Westall our learned council, except Serjeant Crew, minster, etc., not restraining, nevertheless, any who was then gone to attend your majesty. It other exercise of his place of chief justice in private. was delivered unto him that your majesty's pleaThus having performed, to the best of our undersure was, that we should receive an account from standing, your royal commandment, we rest ever him of the performance of a commandment of Your majesty's most faithful, your majesty laid upon him, which was, that he should enter into a view and retraction of such novelties, and errors, and offensive conceits, as were dispersed in his "Reports;" that he had had good time to do it; and we doubted not but he had used good endeavour in it, which we desired now in particular to receive from him. His speech was, that there were of his "Reports," eleven books, that contained about five hundred cases: that heretofore in other "Reports," as namely, those of Mr. Plowden, which he reverenced much, there hath been found, nevertheless, errors, which the wisdom of time had discovered, and later judgments controlled; and enumerated to us four cases in Plowden, which were erroneous: and thereupon delivered in to us the enclosed paper, wherein your majesty may perceive, that my lord is a happy man, that there should be no more errors in his five hundred cases, than in a few cases of Plowden. Your majesty may also perceive, that your majesty's direction to my lord chancellor and myself, and the travail taken by us and Mr. Solicitor,§ in following and performing your direction, was not altogether lost; for that of those three heads, which we principally respected, which were the rights and liberties of the church, your prerogative, and the jurisdiction of other your courts, my lord hath scarcely fallen upon any, except it be the prince's case, which also yet seemeth to stand but the grammatical, of French and Latin. upon * Sir John Dodderidge was made judge of the king's bench, November 25, 1612, and Sir Augustin Nichols of the common pleas, the day following. + Sir Edward Coke. Edmund Plowden, born of an ancient family of that name, preface to the "Reports," in the twentieth year of his age, and the thirtieth of the reign of Henry VIII. anno 1539, began his study of the common law in the Middle Temple. Wood adds, Ath. Ozon. Vol. I. col. 219, that he spent three years in the study of arts, philosophy, and physic, at Cambridge, and four at Oxford, where, in November, 1552, he was admitted to practice chirurgery and physic. In 1557 he became summer reader of the Middle Temple, and three years after, Lent reader, having been made serjeant, October 27, 1558. died February 6, 1584-5, at the age of sixty-seven, in the profession of the Roman Catholic faith, and lies interred in the Temple church. at Plowden in Shropshire, who, as he tells us himself in the Sir Henry Yelverton. He and most bounden servants, etc. THE LORD VISCOUNT VILLIERS TO SIR SIR, Your ever assured friend at command, the 3d of October, 1616. To the Right Honourable Sir Francis Bacon, Knight, His Majesty's Attorney-General, and of his most honourable privy council. TO THE KING. IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY, We have considered of the letters, which we received from your majesty, as well that written to us both, as that other written by my Lord Villiers to me, the attorney, which I thought good to acquaint my lord chancellor withal, the better to give your majesty satisfaction. And we most humbly desire your majesty to think, that we are, and ever shall be, ready to perform and obey your majesty's directions; towards which the first degree is to understand them well. In answer, therefore, to both the said letters, as well concerning matter as concerning time, we shall in all humbleness offer to your majesty's high wisdom the considerations following: First, we did conceive, that after my Lord Coke was sequestered from the table and his circuits, when your majesty laid upon him your commandment for the expurging of his "Reports," and commanded also our service to look into them, and into other novelties introduced into the government, your majesty had in this your doing two principal ends: The one to see, if upon so fair an occasion he would make any expiation of his former faults: and also show himself sensible of those things in his "Reports," which he could not but know were the likest to be offensive to your majesty. The other, to perform "de vero" this right to your crown and succession, and your people also; that those errors and novelties might not run on, and authorize by time, but might be taken away, whether he consented to it or no. But we did not conceive your majesty would have had him charged with those faults of his book, or those other novelties; but only would have had them represented to you for your better information. 1 Now your majesty seeth what he hath done, you can better judge of it than we can. If, upon this probation added to former matters, your majesty think him not fit for your service, we must in all humbleness subscribe to your majesty, and acknowledge that neither his displacing, considering he holdeth his place but during your will and pleasure, nor the choice of a fit man to be put in his room, are council-table matters, but are to proceed wholly from your majesty's great wisdom and gracious pleasure. So that, in this course, it is but the signification of your pleasure, and the business is at an end as to him. Only there remaineth the actual expurgation or animadver sions of the books. But, if your majesty understand it, that he shall be charged, then, as your majesty best knoweth, On the 30th of June, 1616. Camdeni Annales Regis Jacobi I. p. 19; and Peck, Desiderata Curiosa, Vol. I. Lib. VI. P. 18. justice requireth, that he be heard and called to his answer, and then your majesty will be pleased to consider, before whom he shall be charged; whether before the body of your council, as formerly he was, or some selected commissioners; for we conceive your majesty will not think it convenient it should be before us two only. Also the manner of his charge is considerable, whether it shall be verbal by your learned council, as it was last; or whether, in respect of the multiplicity of matters, he shall not have the collections we have made in writing, delivered to him. Also the matter of his charge is likewise considerable, whether any of those points of novelty, which by your majesty's commandment we collected, shall be made part of his charge; or only the faults of his books, and the prohibitions and "habeas corpus," collected by my Lord of Canterbury. In all which course we foresee length of time, not so much for your learned council to be prepared, for that is almost done already, but because himself, no doubt, will crave time of advice to peruse his own books, and to see, whether the collections be true, and that he be justly charged; and then to produce his proofs, that those things, which he shall be charged with, were not conceits or singularities of his own, but the acts of court, and other like things, tending to excusation or extenuation; wherein we do not see, how the time of divers days, if not of weeks, can be denied him. Now, for time, if this last course of charging him be taken, we may only inform your majesty thus much, that the absence of a chief justice, though it should be for a whole term, as it hath been often upon sickness, can be no hindrance to common justice. For the business of the king's bench may be despatched by the rest of the judges: his voice in the Star Chamber may be supplied by any other judge, that my lord chancellor shall call; and the trials by "nisi prius" may be supplied by commission. But, as for those great matters of discovery, we can say nothing more than this, that either they are old or new. If old, he is to blame for having kept them so long: if new, or whatsoever, he may advertise your majesty of them by letter, or deliver them by word to such counsellor as your majesty will assign. Thus we hope your majesty will accept of our sincerity, having dealt freely and openly with your majesty, as becometh us: and when we shall receive your pleasure and direction, we shall execute and obey the same in all things; ending with our prayers for your majesty, and resting Your majesty's most faithful, and most bounden servants, October 6, 1616. T. ELLESMERE, Canc. REMEMBRANCES OF HIS MAJESTY'S DECLA- | busying himself in casting fears before his council, RATION, TOUCHING THE LORD COKE. THAT although the discharging and removing of his majesty's officers and servants, as well as the choice and advancement of men to place, be no council-table matters, but belong to his majesty's princely will and secret judgment; yet, his majesty will do his council this honour, that in his resolutions of that kind, his council shall know them first before others, and shall know them, accompanied by their causes, making as it were a private manifesto, or revealing of himself to them without parables. Then to have the report of the lords touching the business of the Lord Coke, and the last order of the council read. That done, his majesty farther to declare, that he might, upon the same three grounds in the order mentioned, of deceit, contempt, and slander of his governinent, very justly have proceeded then, not only to have put him from his place of chief justice, but to have brought him in question in the Star Chamber, which would have been his utter overthrow; but then his majesty was pleased for that time only to put him off from the counciltable, and from the public exercise of his place of chief justice, and to take farther time to deliberate. That, in his majesty's deliberation, besides the present occasion, he had in some things looked back to the Lord Coke's former carriage, and in some things looked forward, to make some farther trial of him. That for things passed, his majesty had noted in him a perpetual turbulent carriage, first towards the liberties of his church and estate ecclesiastical; towards his prerogative royal, and the branches thereof; and likewise towards all the settled jurisdictions of all his other courts, the high commission, the Star Chamber, the chancery, the provincial councils, the admiralty, the duchy, the court of requests, the commission of inquiries, the new boroughs of Ireland; in all which he had raised troubles and new questions; and, lastly, in that, which might concern the safety of his royal person, by his exposition of the laws in cases of high treason. That, besides the actions themselves, his majesty in his princely wisdom hath made two special observations of him; the one, that he having in his nature not one part of those things which are popular in men, being neither civil, nor affable, nor magnificent, he hath made himself popular by design only, in pulling down government. The other, that whereas his majesty might have expected a change in him, when he made him his own, by taking him to be of his council, it made no change at all, but to the worse, he holding on all his former channel, and running separate courses from the rest of his council; and rather concerning what they could not do, than joining his advice what they should do. That his majesty, desirous yet to make a farther trial of him, had given him the summer's vacation to reform his "Reports," wherein there be many dangerous conceits of his own uttered for law, to the prejudice of his crown, parliament, and subjects; and to see, whether by this he would in any part redeem his fault. But that his majesty hath failed of the redemption he desired, but hath met with another kind of redemption from him, which he little expected. For, as to the "Reports," after three months' time and consideration, he had offered his majesty only five animadversions, being rather a scorn, than a satisfaction to his majesty: whereof one was that in the prince's case he had found out the French statute, which was "filz aisne," whereas the Latin was "primogenitus ;" and so the prince is Duke of Cornwall in French, and not Duke of Cornwall in Latin. And another was, that he had set Montagu to be chief justice in Henry VIII.'s time, when it should have been in Edward VI.'s, and such other stuff; not falling upon any of those things, which he could not but know were offensive. That hereupon his majesty thought good to refresh his memory, and out of many cases, which his majesty caused to be collated, to require his answer to five, being all such, as were but expatiations of his own, and no judgments; whereunto he returned such an answer, as did either justify himself, or elude the matter, so as his majesty seeth plainly ❝ antiquum obtinet.” 66 TO THE KING. MAY IT PLEASE YOUR Excellent Majesty, I send your majesty a form of discharge for my Lord Coke from his place of chief justice of your bench.* I send also a warrant to the lord chancellor, for making forth a writ for a new chief justice, leaving a blank for the name to be supplied by your majesty's presence; for I never received your majesty's express pleasure in it. If your majesty resolve of Montagu,† as I conceive and wish, it is very material, as these times are, that your majesty have some care, that the recorder succeeding be a temperate and discreet man, and assured to your majesty's service. If continue the place within your own servants, it is your majesty, without too much harshness, can best: if not, the man, upon whom the choice is Sir Edward Coke was removed from that post on the 15th November, 1616. + Sir Henry Montagu, Recorder of London, who was made He was afterwards made lord treasurer, and created Earl of Lord Chief Justice of the King's Bench, November 16, 1616. Manchester. |