in embryo the beginnings of this process. That this process, soon after Ellesmere's death, began to develop rapidly is due in no small measure to his success in vindicating the freedom of his court from the control of the common law courts, and, in making it, in some respects, their superior. 4 2 It is the issue of this controversy, decided in the closing years of his life, which, as I have said, makes his tenure of office a turning point in the history of equity. It is fairly clear that, in spite of contemporary rumours to the contrary, Ellesmere did not seek to enlarge the jurisdiction of his court at the expense of rival courts. He did not encourage mercantile cases; and he was content to leave jurisdiction over legacies and the probate of wills to the ecclesiastical courts. But he was driven to resist the concerted attack which Coke made upon his court, because, if it had not been resisted, it would have been impossible to administer any system of equitable relief except by the leave and licence of the common law courts. It was really a fight for the existence of equity as an independent system. It was fortunate for the future development of English law that the issue was raised and decided at this date. The controversy between king and Parliament, between Puritan and Anglican, between the common lawyers and their rivals, had begun; but it had not yet become so embittered that it was impossible to arrive at a permanent settlement upon some of the points of difference. We have seen that the statute of James I. upon monopoly patents went a long way to effect such a settlement upon that much controverted question. In the same way James' decision really effected a similar settlement upon this question of the right of equity to exist as an independent system. It is true that the lawyers tried without success to induce the House of Commons to pass bills designed to cripple the Chancery.8 It is true that the existence of equity was threatened when the outbreak of the Great Rebellion destroyed the constitution." The Parliamentary party did not forget that the chancellor was the first official of the state as well as the judge of the court of Chancery; that the king had sometimes used the court of Chancery 1 Vol. i 461-463. 3 Above 232 n. 15. 4 Monro, op. cit. 94, 109-111, 117-118. Above 233 n. 3. 5 Ibid 761. 6 As Bacon said, with reference to Coke's use of the statute of Præmunire against the Chancery (vol. i 462), it was, "A strange attempt to make the Chancellor sit under a hatchet instead of the King's arms," Spedding, op. cit. vi 91. 7 Vol. iv 353-354. 8 Hist. MSS. Com. 3rd Rep. App. 15, a bill of 1614 to prevent any proceedings in other courts after judgment at common law; ibid 29, a bill of 1623-1624 providing for an appeal from all courts of equity to the King's Bench or Common Pleas. 9 Vol. i 431-434; above 217-218; below 445; vol. vi c. 6. to further his political views; and that he had interfered with the chancellor's administration of justice. It is true that some common lawyers of the straighter sort, who favoured the Parliament, wished to get rid of the Chancery both on political and professional grounds. But the decision of James was so obviously right; the need for a court of equity was so clear; the fact that the courts of common law and equity had, down to the outbreak of the Great Rebellion, worked well together to the advantage both of the litigant and the law was so evident—that even under the commonwealth it was impossible to dispense wholly with equity; and at the Restoration it silently resumed the place which had been given to it by James I.'s decree. The objections which some few common lawyers continued to raise right up to the end of the seventeenth century have merely an academic interest." It was fortunate even for the common law that this was so. If the common law had succeeded in reducing all its rivals to insignificance it would have been in considerable danger of becoming as hide bound as it was threatening to become in the fifteenth century." The development which the healthy rivalries of the sixteenth century had produced might have been stayed. It was still more fortunate for English law as a whole. Even if the common law had continued to develop, there were many proprietary relations, many social relations, many business relations, which the machinery of the common law could not have regulated adequately. We have only to think of such topics as the law of trusts, of mortgage, of guardianship, of partnership, of administration of assets, to see that this is obviously true. The growth of all these branches of law would have been hardly possible if they could only have been dealt with by the machinery of the common law; and their development by equity would have been stunted if the machinery of the court could only have been 1 Bacon said in a letter to the king written in 1615 (Spedding, op. cit. v 236)— "Your Majesty knoweth your chancellor is ever a principal counsellor and instrument of monarchy, of immediate dependence upon the king, and therefore like to be a safe and tender guardian of the regal rights"; in another paper (ibid vi 90-91) he states that Coke had prevailed against the Provincial Councils, "in such sort, as the Presidents are continually suitors for the enlargement of the instructions, sometimes in one point sometimes in another, and the jurisdictions grow into contempt, and more would, if the Lord Chancellor did not strengthen them by injunctions, when they exceed not their instructions"; see also Mayor of London v. Benet (1630-1631) 1 Ch. Rep. 44-45-a banker, who had lent money to the City for the City's loan to the king, tried to sue the City for it, and was stopped by an injunction. 2 Monro, op. cit. 338-Case reheard by order of the Queen; 372-the Queen orders the Chancellor to retain a suit; 582-a case which had been dismissed to the Palatine court of Chester, reheard by the Queen's order; 556-actions at law for taking post-horses for the Queen's service stayed; for the cases where Buckingham interfered with Bacon's administration of equity see below 254 n. 3. 3 Above 217; below 251-252. 4 Vol. i 431-434. used under the supervision of the common lawyers. Probably that supervision would have had the same effect upon the court of Chancery as it had upon the court of Admiralty and the ecclesiastical courts. It would have rendered it ineffective and useless. The only remedy would have been to invoke the aid of the legislature to restore or to create a court with the powers which James I.'s decree secured to the Chancery. It is not probable that a new statutory creation of that kind would have been as efficient as a court, which was already beginning to evolve a code of procedure, and, through the working of that procedure, a body of substantive rules. Equity, then, was fortunate in securing its independent existence when it did. It was no less fortunate in securing, immediately afterwards, the guidance and direction of the friend and protegé of Lord Ellesmere,2 and the most philosophic lawyer in England-Francis Bacon. He consolidated the victory which Ellesmere had won, and gave to Equity a great impulse along that path of definition, and co-ordination with the rules of the common law, which, since the advent of the lawyer chancellors and until the late controversy, had been silently proceeding throughout the greater part of the sixteenth century. 5 At the age of thirty-one Bacon told his uncle, Lord Burghley, that he had taken all knowledge to be his province; and, as with many another of his statements, what in any other man would have been empty boasting, was with him a statement of sober fact. He could and did survey the field of existing knowledge, critically diagnosing the shortcomings of past thinkers, suggesting the need for inquiry by new methods into the unexplored kingdom of nature, and presenting a vision of the vast and beneficial extensions of the bounds of human knowledge which would follow from such an inquiry. It was as a philosopher that Bacon used 1 Vol. i 556-558, 614-630. 9 Gardiner iii 79-" For some time past the late Chancellor had lost no opportunity of speaking a good word for Bacon, and had expressly declared his wish that he might be his successor. The same exalted idea of the prerogative, the same desire to limit the jurisdiction of the Courts of Common law, animated them both." 3 Spedding, Letters and Life, and his edition of Bacon's Works; Gardiner, History of England, and article in Dict. Nat. Biog.; R. W. Church, Bacon; J. E. G. de Montmorency, Francis Bacon in Great Jurists of the World (Continental Legal History Series) 144-168. 'Bacon's view, Spedding, op. cit. vi 198, that, "The former discords and differences between the Chancery and other courts was but flesh and blood; and now the men were gone the matter was gone"-has in it a good deal of substantial truth. 5 Spedding, Letters and Life i 109—“I have taken all knowledge to be my province; and if I could purge it of two sorts of rovers, whereof the one with frivolous disputations, confutations, and verbosities, the other with blind experiments and auricular traditions and impostures, hath committed so many spoils, I hope I should bring in industrious observations, grounded conclusions, and profitable inventions and discoveries; the best state of that province." these words; and we have seen that, as a philosopher, he both summed up the intellectual changes of the sixteenth century, and foreshadowed the new intellectual developments of the future.1 But he was both a student of and a practitioner in many other branches of knowledge besides philosophy. Upon literature, history, politics, and law he left his mark. We are not here concerned with his achievements in literature and history; but we are concerned with his achievements in politics and law. Of his political career I shall speak in a later chapter. In this and the following chapter we must consider him as a lawyer. He was a more complete lawyer than any of his contemporaries. Not only was he an eminent practitioner in the common law; not only did he leave his mark as lord chancellor upon the development of equity; he also studied both English law and law in general scientifically and critically. The only other lawyer, in that age of distinguished lawyers, who can be compared with him, is his great rival Coke. And no two men could be more dissimilar in their mental outlook and their subsequent influence upon English law. Both, indeed, were eminent practitioners; but while Bacon is a great juridical thinker, Coke is a great common lawyer. Both left their marks upon English law; but while Bacon's influence was literary and scientific, Coke's was practical, and, owing to political causes, far greater.3 Less attention has perhaps been paid to the purely legal side of Bacon's career than to any other. But, from some points of view, it might perhaps be contended that this side of his intellectual activities is one of the most important. While "he was untimely going to bed and there musing nescio quid when he should sleep,' "4 he was a student of law as well as of other matters. And the legal training and practice, which occupied the greatest part of his active career, coloured his whole mental outlook, and influenced both his political and his philosophic thought. In the political world all the great controversies of the day, which were not purely theological, turned or were thought to turn upon doubtful points of public law; so that his legal studies fitted him to discuss them effectively from the point of view which most appealed to the men of his own day. It is significant that the philosopher who taught that man is the minister and interpreter of nature, and that he can only accomplish and understand in proportion as he has actually and intelligently observed the order of nature," was a lawyer, taught Below 489-493. Vol. iv 49-52. 2 Vol. vi c. 6. So his mother wrote in 1591, Spedding, Letters and Life i 114. 5" Homo, naturæ minister et interpres, tantum facit et intelligit, quantum, de naturæ ordine, re vel mente observaverit; nec amplius sciet aut potest," Nov. Org. Bk, i App. i. to reason out his rules and principles from diverse decisions upon the concrete facts of individual cases. In law it was only by studying these individual cases that existing rules could be understood, and new developments of these rules be established. is a sound precept," he wrote, "not to take the law from the rules, but to make the rule from the existing law. For the proof is not to be sought from the words of the rule, as if it were the text of law. The rule, like the magnetic needle, points at the law, but does not settle it." 1 Bacon's conviction of the necessity for the study of the concrete facts of nature or of human life is, I think, not wholly unconnected with the fact that his legal training was in a system of case law. Of Bacon as a common lawyer I shall have something to say in the next chapter. Here we must look at him chiefly from the point of view of the influence which, as chancellor, he exerted upon the growth of equity. But to understand the nature of his influence, whether as a chancellor, a common lawyer, or a statesman, we must know something of the man himself. I shall therefore at this point attempt in the first place to describe the man himself, in the second place to say something of him as a jurist, and in the third place to give some account of his achievements as chancellor. The Man. The main facts of Bacon's life are so well known that it is only necessary to give a bare summary of important dates. He was the youngest son of Nicholas Bacon, and was born January 22nd, 1561. In 1573 he entered Trinity College, Cambridge, and in 1575 he was admitted to Gray's Inn. From 1576-1579 he was 3 attached to the French embassy. The death of his father in that year recalled him to England, and made it necessary for him to devote himself seriously to the study of the law. He was called to the bar in 1583, and, probably by the influence of his uncle, was admitted to the Readers' Table in 1586. He read in 1587 and 1599. In 1584 he had become a member of Parliament; and he soon made his mark in this new sphere. In 1591 he made the acquaintance of the earl of Essex, who tried in every to push his fortunes. But he had offended the queen by his conduct in Parliament, and in her reign the only offices which he obtained were the reversion to the office of clerk to the Star Chamber, of which he did not get possession for twenty years, way ་་ 1 De Augmentis, Bk. viii c. 3 Aph. 85-" Recte jubetur, ut non ex regulis jus sumatur; sed ex jure quod est, regula fiat: neque enim ex verbis regulæ petenda est probatio, ac si esset textus legis: regula enim legem (ut acus nautica polos) indicat, non statuit "; the translation in the text is Spedding's. 2 Below 485-489. 3 Gray's Inn Pension Book 72 n, I. |