JUDICIAL CHARGES AND TRACTS. THE EFFECT OF THAT WHICH WAS SPOKEN BY THE LORD KEEPER OF THE GREAT SEAL OF ENGLAND, AT THE TAKING OF HIS PLACE IN CHANCERY, IN PERFORMANCE OF THE CHARGE HIS MAJESTY HAD GIVEN HIM WHEN HE RECEIVED THE SEAL, MAY 7, 1617. BEFORE I enter into the business of the court, I a table, according to the good example of my last shall take advantage of so many honourable wit-predecessor in his beginning. nesses to publish and make known summarily, what charge the king's most excellent majesty gave me when I received the seal, and what orders and resolutions I myself have taken in conformity to that charge; that the king may have the honour of direction, and I the part of obedience; whereby your lordships, and the rest of the presence, shall see the whole time of my sitting in the chancery, which may be longer or shorter, as it shall please God and the king, contracted into one hour. And this I do for three causes. First, To give account to the king of his commandment. And, lastly, that these imperatives, which I have made but to myself and my times, be without prejudice to the authority of the court, or to wiser men that may succeed me; and chiefly that they are wholly submitted unto the great wisdom of my sovereign, and the absolute prince in judicature that hath been in the Christian world; for if any of these things which I intend to be subordinate to his directions, shall be thought by his majesty to be inordinate, I shall be most ready to reform them. These things are but, "tanquam album prætoris;" for so did the Roman prætors, which have the greatest affinity with the jurisdiction of the chancellor here, who used to set down at their entrance, how they would use their Secondly, That it may be a guard and custody to myself, and my own doings, that I do not swerve or recede from any thing that I have pro-jurisdiction. And this I shall do, my lords, "in fessed in so noble company. And, thirdly, That all men that have to do with the chancery or the seal, may know what they shall expect, and both set their hearts and my ears at rest; not moving me in any thing against these rules; knowing that my answer is now turned from a "nolumus" into a "non possumus." It is no more, I will not, but, I cannot, after this declaration. And this I do also under three cautions. The first is, That there be some things of a more secret and council-like nature more fit to be acted than published. But those things which I shall speak of to-day are of a more public nature. The second is, That I will not trouble this presence with every particular, which would be too long; but select those things which are of greatest efficacy, and conduce most "ad summas rerum;" leaving many other particulars to be set down in verbis masculis ;" no flourishing or painted words, but such as are fit to go before deeds. The king's charge, which is my lantern, rested upon four heads. The first was, That I should contain the jurisdiction of the court within its true and due limits, without swelling or excess. The second, That I should think the putting of the great seal to letters patents was not a matter of course to follow after precedent warrants; but that I should take it to be the maturity and fulness of the king's intentions: and, therefore, of the greatest parts of my trust, if I saw therein any scruple or cause of stay, that I should acquaint him, concluding with a " Quod dubites ne feceris." The third was, That I should retrench all unnecessary delays, that the subject might find that he did enjoy the same remedy against the fainting of the soul and the consumption of the estate, which was speedy justice. dat." "Bis dat, qui cito | plainant enter into good bond to prove his suggestion so that if he will be relieved against a judgment at common law upon matter of equity, he shall do it "tanquam in vinculis," at his peril. The third point of excess may be the overfrequent and facile granting of injunctions for the staying of the common laws, or the altering of possessions; wherein these shall be my rules. The fourth was, that justice might pass with as easy charge as might be; and that those same brambles, that grow about justice, of needless charge and expense, and all manner of exactions, might be rooted out so far as might be. These commandments, my lords, are righteous, and, as I may term them, sacred; and, therefore, to use a sacred form, I pray God bless the king for his great care over the justice of the land, and give me, his poor servant, grace and power to observe his precepts. Now, for beginning towards it, I have set down and applied particular orders to-day out of these four general heads. I will grant no injunction merely upon priority of suit; that is to say, because this court was first possessed: a thing that was well reformed in the late lord chancellor's time, but usual in the Chancellor Bromley's time; insomuch, as I remember, that Mr. Dalton, the counsellor at law, put a pasquil upon the court in nature of a bill; for seeing it was no more but, My lord, the bill For the excess or tumour of this Court of Chan- came in on Monday, and the arrest at common cery, I shall divide it into five natures. The first is, when the court doth embrace and retain causes, both in matter and circumstance merely determinable and fit for the common law; for, my lords, the chancery is ordained to supply the law, and not to subvert the law. Now, to describe unto you or delineate what those causes are that are fit for the court, or not fit for the court, were too long a lecture. But I will tell you what remedy I have prepared. I will keep the keys of the court myself, and will never refer any demurrer or plea, tending to discharge or dismiss the court of the cause, to any master of the chancery, but judge of it myself, or at least the master of the rolls. Nay, farther, I will appoint regularly, that on the Tuesday of every week, which is the day of orders, first to hear motions of that nature before any other, that the subject may have his "vale" at first without attending, and that the court do not keep and accumulate a miscellany and confusion of causes of all natures. The second point concerneth the time of the complaint, and the late comers into the chancery; which stay till a judgment be passed against them at the common law, and then complain : wherein your lordships may have heard a great rattle and a noise of a "præmunire," and I cannot tell what. But that question the king hath settled according to the ancient precedents in all times continued. And this I will say, that the opinion, not to relieve any case after judgment, would be a guilty opinion; guilty of the ruin, and naufrage, and perishing of infinite subjects: and as the king found it well out, why should a man fly into the chancery before he be hurt? The whole need not the physician, but the sick. But, my lords, the power would be preserved, but the practice would be moderate. My rule shall be, therefore, that in case of complaints after judgment, except the judgments be upon "nihil dicit," and cases which are but disguises of judginent, as that they be judgments obtained in contempt of a preceding order in this court, yea, and after verdicts also, I will have the party com law was on Tuesday, I pray the injunction upon priority of suit: he caused his client that had a loose debtor, to put his bill into the chancery before the bond due to him was forfeited, to desire an order that he might have his money at the day, because he would be sure to be before the other. I do not mean to make it a matter of a horserace who shall be first at Westminister-hall. Neither will I grant an injunction upon matter contained in the bill only, be it never so smooth and specious; but upon matter confessed in the defendant's answer, or matter pregnant in writing, or of record; or upon contempt of the defendant in not appearing, or not answering, or trifling with the court by insufficient answering. For then it may be thought that the defendant stands out upon purposes to get the start at the common law, and so to take advantage of his own contempt; which may not be suffered. As for injunctions for possession, I shall maintain possessions as they were at the time of the bill exhibited; and for the space of a year at the least before, except the possession were gotten by force or any trick. Neither will I alter possession upon interlocu tory orders, until a decree; except upon matter plainly confessed in the defendant's answer, joined also with a plain disability and insolvency in the defendant to answer the profits. As for taking of possession away in respect of contempts, I will have all the process of the court spent first, and a sequestration of the profits before I come to an injunction. The fourth point is concerning the communicating of the authority of the chancellor too far; and making, upon the matter, too many chancellors, by relying too much upon the reports of the masters of the chancery as concludent. I know, my lords, the masters of the chancery are reverend men; and the great mass of the business of the court cannot be sped without them; and it is a thing the chancellor may soon fall into for his own ease, to rely too much upon them. But the course that I will take generally shall be this; I will make no binding order upon any report of one of the masters, without giving a seven-night's day at the least, to show cause against the report, which nevertheless I will have done modestly, and with due reverence towards them: and, again, I must utterly discontinue the making of a hypothetical or conditional order; that if a master of the chancery do certify thus and thus, that then it is so ordered without farther motion; for that it is a surprise, and giveth no time for contradiction. Thirdly, If it be a grant which 1 conceive, out of my little knowledge, to be against the law; of which nature Theodosius was wont to say, when he was pressed, "I spake it, or I wrote it, but I granted it not if it be unjust:" I will call the learned counsel to it, as well him that drew the book as the rest, or some of them: and if we find cause, I will inform his majesty of our opinion, either by myself or some of them. And as for the judges, they are judges of grants past, but not of grants to come, except the king call them. Fourthly, If the grants be against the king's public book of bounty, I am expressly commanded to stay them until the king either revise his book in general, or give direction in particular. Fifthly, If, as a counsellor of estate, I do foresee inconvenience to ensue by the grant in reason of estate, in respect of the king's honour, or discontent, and murmur of the people; I will not trust mine own judgment, but I will either acquaint his majesty with it, or the council table, or some such of my lords as I shall think fit. The last point of excess is, if a chancellor shall be so much of himself, as he shall neglect assistance of reverend judges in cases of difficulty, especially if they touch upon law, or calling them, shall do it but "pro forma tantum," and give no due respect to their opinions: wherein, my lords, preserving the dignity and majesty of the court, which I account rather increased than diminished by grave and due assistance, I shall never be found so sovereign or abundant in mine own sense, but I shall both desire and make true use of assistance. Nay, I assure your lordships, if I should find any main diversity of opinion of my assistants from mine own, though I know well the judicature of the court wholly resteth in my-lute, by a "non-obstante;" or of piracy, or of self, yet I think I should have recourse to the oracle of the king's own judgment, before I should pronounce. And so much for the temperate use of the authority of this court; for surely the health of a court, as well as of a body, consisteth in temperance. For the second commandment of his majesty, touching staying of grants at the great seal; there may be just cause of stay, either in the matter of the grant, or in the manner of passing the same. Out of both which I extract these six principal cases which I will now make known: all which, nevertheless, I understand to be wholly submitted to his majesty's will and pleasure, after by me he shall have been informed; for if “iteratum mandatum" be come, obedience is better than sacrifice. The first case is, where any matter of revenue, or treasure, or profit, passeth from his majesty; my first duty shall be to examine, whether the grant hath passed in the due and natural course by the great officers of the revenue, the lord treasurer and chancellor of the exchequer, and with their privity; which if I find it not to be, I must presume it to have passed in the dark, and by a kind of surreption; and I will make stay of it till his majesty's pleasure be farther known. Secondly, If it be a grant that is not merely vulgar, and hath not of course passed at the signet by a "fac simile," but needeth science, my duty shall be to examine whether it hath passed by the learned counsel and had their docket; which is that his majesty reads, and leads him. And if I and it otherwise, although the matter were not in itself inconvenient, yet I hold it a just cause of stay, for precedent's sake, to keep men in the right way. VOL. II.-60 Lastly, For matter of pardons; if it be for treason, misprision, murder, either expressed or invo "præmunire," or of fines, or exemplary punishment in the Star Chamber, or some other natures; I shall by the grace of God stay them until his majesty, who is the fountain of grace, may resolve between God and him, how far grace shall abound or superabound. And if it be of persons attainted and convicted of robbery, burglary, etc., then will I examine whether the pardons passed the hand of any justice of assize, or other commissioners, before whom the trial was made; and if not, I think it my duty also to stay them.. And your lordships see in this matter of the seal. and his majesty's royal commandment concerning the same, I mean to walk in the light; so that men may know where to find me: and this publishing thereof plainly, I hope, will save the king from a great deal of abuse, and me from a great deal of envy; when men shall see that no particular turn or end leads me, but a general rule. For the third general head of his majesty's precepts concerning speedy justice, it rests much upon myself, and much upon others: yet so, as my procuration may give some remedy and order to it. For myself, I am resolved that my decree shall come speedily, if not instantly, after the hearing, and my signed decree speedily upon my decree pronounced. For it hath been a manner much used of late in my last lord's time, of whom I learn much to imitate, and somewhat to avoid; that upon the solemn and full hearing of a cause nothing is pronounced in court, but breviates are required to be made; which I do not dislike in itself in causes perplexed. For I confess I have somewhat of the cunctative; and I am of opinion, that whosoever is not wiser upon advice than 2 R2 upon the sudden, the same man was no wiser at fifty than he was at thirty. And it was my father's ordinary word, “You must give me time." But yet I find when such breviates were taken, the cause was sometimes forgotten a term or two, and then set down for a new hearing, three or four terms after. And in the mean time the subject's pulse beats swift, though the chancery pace be slow. Of which kind of intermission I see no use, and therefore I will promise regularly to pronounce my decree within few days after my hearing; and to sign my decree at the least in the vacation after the pronouncing. For fresh justice is the sweetest. And to the end that there be no delay of justice, nor any other meansmaking or labouring, but the labouring of the counsel at the bar. Again, because justice is a sacred thing, and the end for which I am called to this place, and therefore is my way to heaven: and if it be shorter, it is never a whit the worse, I shall, by the grace of God, as far as God will give me strength, add the afternoon to the forenoon, and some fourth night of the vacation to the term, for the expediting and clearing of the causes of the court; only the depth of the three long vacations I would reserve in some measure free from business of estate, and for studies, arts, and sciences, to which in my own nature I am most inclined. with I will not trouble you now, because "summa sequar fastigia rerum. And so much for matter of expedition. Now, for the fourth and last point of the king's commandment; for the cutting off unnecessary charge of the subject, a great portion of it is fulfilled in the precedent article; for it is the length of suits that doth multiply charges chiefly; but yet there are some other remedies that do conduce thereunto. First, therefore, I will maintain strictly, and with severity, the former orders which I find my lord chancellor hath taken, for the immoderate and needless prolixity, and length of bills and answers, and so forth; as well in punishing the party, as fining the counsel, whose hand I shall find at such bills, answers, etc. Secondly, for all the examinations taken in the court, I do give charge unto the examiners, upon peril of losing their places, that they do not use any idle repetitions, or needless circumstances, in setting down the depositions taken by them; and I would I could help it likewise in the country, but that is almost impossible. Thirdly, I shall take a diligent survey of the copies in chancery, that they have their just number of lines, and without open and wasteful writing. As for lawyers' fees, I must leave that to the conscience and merit of the lawyer; and the estimation and gratitude of the client; but this I can do; I know there have used to attend this bar a number of lawyers that have not been heard sometimes, and scarce once or twice in a term; and that makes the client seek to great counsel and favourites, as they call them, for every order that a mean lawyer might as well despatch, a term fitter for kings than judges. And therefore to help the generality of lawyers, and therein to Fourthly, I shall be careful there be no exaction There is another point of true expedition, which of any new fees, but according as they have been resteth much in myself, and that is in my man-heretofore set and tabled. ner of giving orders. For I have seen an affectation of despatch turn utterly to delay at length: for the manner of it is to take the tale out of the counsellor at the bar his mouth, and to give a cursory order, nothing tending or conducing to the end of the business. It makes me remember what I heard one say of a judge that sat in chancery; that he would make forty orders in a morning out of the way, and it was out of the way indeed; for it was nothing to the end of the business; and this is that which makes sixty, eighty, a hundred orders in a cause, to and fro, beget-ease the client, I will constantly observe that every ting one another; and, like Penelope's web, doing and undoing. But I mean not to purchase the praise of expeditive in that kind; but as one that have a feeling of my duty, and of the case of others. My endeavour shall be to hear patiently, and to cast my order into such a mould as may soonest bring the subject to the end of his journey. As for delays that may concern others, first the great abuse is, that if the plaintiff have got an injunction to stay suits at the common law, then he will spin out his cause at length. But, by the grace of God, I will make injunctions but a hard pillow to sleep on; for if I find that he prosecutes not with effect, he may, perhaps, when he is awake, find not only his injunction dissolved, but his cause dismissed. There be other particular orders, I mean to take for non-prosecution, or faint prosecution, where Tuesday, and other days of orders, after nine o'clock strucken, I will hear the bar until eleven, or half an hour after ten at the least. And since I am upon the point whom I will hear, your lordships will give me leave to tell you a fancy. It falleth out, that there be three of us the king's servants in great places, that are lawyers by descent, Mr. Attorney, son of a judge, Mr. Solicitor, likewise son of a judge, and myself, a chancellor's son. Now, because the law roots so well in my time, I will water it at the root this far, as, besides these great ones, I will hear any judge's son before a sergeant, and any sergeant's son before a reader, if there be not many of them. Lastly, for the better ease of the subjects, and the bridling of contentious suits, I shall give better, that is greater costs where the suggestions are not proved, than hath been hitherto used. IN THE STAR CHAMBER, BEFORE THE SUMMER CIRCUITS, THE KING BEING THEN IN SCOTLAND, 1617. THE king, by his perfect declaration published in this place concerning judges and justices, hath made the speech of his chancellor, accustomed before the circuits, rather of ceremony than of use. For as in his book to his son he hath set forth a true character and platform of a king; so in this his speech he hath done the like of a judge and justice: which showeth, that as his majesty is excellently able to govern in chief; so he is likewise well seen and skilful in the inferior offices and stages of justice and government; which is a thing very rare in kings. Yet, nevertheless, somewhat must be said to fulfil an old observance; but yet upon the king's grounds, and very briefly: for, as Solomon saith in another case, "In these things who is he that can come after the king?" First, You that are the judges of circuits are, as it were, the planets of the kingdom: I do you no dishonour in giving you that name, and no doubt you have a great stroke in the frame of this government, as the other have in the great frame of the world. Do therefore as they do, move always, and be carried with the motion of your first mover, which is your sovereign. A popular judge is a deformed thing: and "plaudites" are fitter for players than for magistrates. Do good to the people, love them and give them justice; but let it be, as the Psalm saith, "nihil inde expectantes;" looking for nothing, neither praise nor profit. Yet my meaning is not, when I wish you to take heed of popularity, that you should be imperious and strange to the gentlemen of the country. You are above them in power, but your rank is not much unequal; and learn this, that power is ever of greatest strength, when it is civilly carried. your ordinary administration of justice, you do carry the two classes or mirrors of the state; for it is your duty, in these your visitations, to represent to the people the graces and care of the king: and again, upon your return, to present to the king the distastes and griefs of the people. Mark what the king says in his book: "Procure reverence to the king and the law; inform my people truly of me," (which, we know, is hard to do according to the excellency of his merit; but yet endeavour it,) "how zealous I am for religion; how I desire law may be maintained and flourish; that every court should have its jurisdiction; that every subject should submit himself to the law." And of this you have had of late no small occasion of notice and remembrance, by the great and strait charge that the king hath given me as keeper of his seal, for the governing of the chancery without tumour or excess. Again, "e re nata," you at this present ought to make the people know and consider the king's blessed care and providence in governing this realm in his absence; so that, sitting at the helm of another kingdom, not without great affairs and business; yet, he governs all things here by his letters and directions, as punctually and perfectly as if he were present. I assure you, my lords of the council and I do much admire the extension and latitude of his care in all things. In the high commission he did conceive a sinew of government was a little shrunk; he recommended the care of it. He hath called for the accounts of the last circuit from the judges to be transmitted unto him in Scotland. Touching the infestation of pirates, he hath Secondly, You must remember, that besides been careful, and is, and hath put things in a way |