The Chancellor.

Bacon's decisions as chancellor are still among the unpublished records of the court, and so we only have very scrappy and very unsatisfactory notes of them.1 It would no doubt be interesting to see the actual records of these cases. We should be able to see the directions in which Bacon developed equity, we might perhaps discover that he had originated or anticipated some of its later doctrines. But with him, as with the other chancellors of this period, in the absence of reports, we shall never be able to discover how "he directed the evidence, moderated length repetition or impertinency of speech, recapitulated selected and collated the material points of that which had been said, gave the rule or sentence:" nor how he "commended and graced an advocate when the cause was well handled and fair pleaded; how he reprehended when there appeared cunning counsel, gross neglect, slight information, indiscreet pressing, or an over-bold defence." We do, however, know from his own writings a good deal more of his achievement than we know of the achievement of any other chancellor before the beginning of the regular reports.

2

In the first place, he succeeded in restoring a certain amount of harmony between the common law and the Chancery. No doubt the victory of the Chancery, to which he had largely contributed, had left the common lawyers rather sore. In the speech which he made on taking his seat in Chancery he promised that the issue of injunctions should be carefully regulated; and further, he imitated the example of Sir Thomas More, and invited the judges to dinner to discuss the matter. After dinner, he pointed out that the late controversy had been largely personal; that for the future," as I would not suffer any the least diminution or derogation from the ancient and due power of the Chancery, so if anything should be brought to them at any time touching the proceedings of the Chancery which did seem to them exorbitant or inordinate, that they should freely and friendly acquaint me with it, and we should soon agree; or if not, we had a master that could easily both discern and rule." At which he says, “I did see cheer and comfort in their faces, as if it were a new world." He was as good as his word. In his orders he carefully provided against the

1 Mainly in Tothill; for this book see below 276, 277.

2 Essays of Judicature.

3 Spedding, Letters and Life vi 182-186: apparently he never printed a copy, and the version we have is probably "drawn up by Bacon from recollection of what he had said," ibid 182.

4 Above 238 n. 4.

"Spedding, Letters and Life vi 198.

abuse by litigants of the power to get injunctions;1 and it is clear from the reports that his measures had some success, since, during the rest of this period, the Chancery and common law courts ceased to quarrel. And so it may be fairly said that he restored the old relations between the common law courts and Chancery, which was necessary for the efficient working of both sets of tribunals.

In the second place, his speech on taking his seat in Chancery showed that he knew at least some of the weaknesses of the court, and was prepared to reform them. We have seen that he He went

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promised to regulate carefully the issue of injunctions. on to say that he did not mean to rely too much upon the reports of the masters; 2 that the final decision should always rest with himself; and that the opinions of the judges, when they were called in to advise him, should always be respected. To the suitor he promised a speedy decision after the hearing of the case, and to sit long that the arrears of causes might be disposed of. At the same time he let it be known that he would never make an order till he was satisfied of its justice. There was to be no more cursory making of orders on ex parte applicationsa course which led to the spinning out of cases by the necessity for the making of further orders. Further, he promised that all former orders directed to diminish the expense of a suit should be maintained. He would see to it that pleadings and examination were not prolix, that copies should be properly executed, that no new fees should be exacted, that plaintiffs who could not prove their bills should be made to pay larger costs.8

Thirdly, he made good his promises by issuing a consolidated

1 Orders in Chancery nos. 20-28; cp. De Augmentis Bk. viii c. iii Aph. 42-46. "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 reports of the masters of Chancery as concludent," Letters and Life vi 187. "I will make no binding order upon any report of one of the masters, without giving a seven nights day at the least to shew cause against the report. And I must utterly discontinue the making of any hypothetical or conditional order; that if a master of the Chancery do certify thus and thus, that then it is so ordered without further motion," ibid.

4 Ibid.

...

5" I am resolved that my decree shall come speedily (if not instantly) after the hearing, and my signed decree speedily upon my decree pronounced," ibid 189. 6" I shall add the afternoon to the forenoon, and some fortnight of the vacation to the term, for the expediting and clearing of the causes of the court," ibid 190.

7" I have seen an affectation of dispatch turn utterly to delay and 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

and this is that which makes sixty, eighty, an hundred orders in a cause, to and fro, begetting one another; and like Penelope's web, doing and undoing,” ibid

190-191.

8 Ibid 191-192.

P

set of Orders, which, to a large extent, fixed the practice of the court till the reforms of the last century. Throughout his life Bacon was a consistent advocate of the codification of the statute law, and of the digesting of case law. This set of Orders was the one piece of codification which he was able to effect.

12

In January, 1619, he issued 101 Orders dealing with the practice of the court,1 and in October, 1620, he issued some supplementary Orders, eleven of which dealt with the same subject.2 The orders of 1619 begin with decrees-how they could be questioned, suspended, and executed. They go on to explain the conditions under which bills would be dismissed; and the conditions under which injunctions and sequestrations, and decrees to corroborate the orders of the Court of Requests or the Provincial Councils, could be got. The duties of the registrars are set out in some detail; and rules are laid down for reference to the masters, and for the drafting of their reports and certificates.8 Then follow rules of pleading, dealing with bills, answers, demurrers, and pleas. They are followed by rules for the conduct of commissions to examine witnesses,1o for the taking of affidavits.1 and for process against those guilty of contempt. Certain applications are enumerated which were not to be granted on petition merely, 13 and special rules are made for the issue of certain kinds of writs.14 The filing of writs and the enrolment of injunctions is regulated.15 Special rules are made for the issue of commissions for charitable uses, for sewers, in bankruptcy, and to constitute the court of Delegates. 16 The last three rules deal with pauper litigants, licences to collect money for losses, and the exemplifications of letters patent and other records.17 The Orders of the following year deal with bills of conformity to compel a composition with creditors, 18 the entry of orders, and further rules as to the issue of licences to collect money for losses. The fact that it was possible to make this comprehensive code is an eloquent testimony to the extent to which the machinery and the procedure of the court had become settled. It is quite clear that a court which had attained this degree of development would soon evolve substantive principles of equity.

Fourthly, Bacon fulfilled his promise to do speedy justice.

1 Their text will be found in Sanders, Chancery Orders i 109-122; or better in Spedding's Ed. of Bacon's Works vii 759-774.

2 Sanders, Chancery Orders i 129-131.
4 Orders 13-19

7 Orders 45, 47, 50, 51, 52, 53.

10 Orders 68-74.

13 Orders 80-83.

16 Orders 94-97; for the court of Delegates see vol. i 603-605.
17 Orders 98-100.

18 On this matter see above 139 and n. 13; Pt. II. c. 4 I. § 6.

3 Orders I-12

Orders 35-44. 9 Orders 55-67. 12 Orders 77 -79. 15 Orders 90-92.

A month after he had taken his seat in Chancery he could write to Buckingham, "This day I have made even with the business of the kingdom for common justice. Not one cause unheard. The lawyers drawn dry of all the motions they were to make. Not one petition unanswered."1 And in December of the same year he was able to make the same boast. Nor is there any evidence that the quality of justice dispensed was unsatisfactory. It is true that he was by his own confession too ready to take presents from suitors. It is true that in at least one case he allowed Buckingham's influence to pervert the course of justice.3 But it is probable, on the whole, that the presents which he took did not prevent him from deciding as he would otherwise have decided. At least we do not hear that any large number of his cases were reversed by his successor.

It may be fairly said, therefore, that Bacon left his mark upon the court of Chancery. As attorney-general he had been largely instrumental in vindicating the independence of the court, and in thus securing the free development of equity. As chancellor he helped to restore harmony between the Chancery and the courts of common law; and he created from the scattered orders of his predecessors a code of procedure, the formation of which was a condition precedent to the development of a system of equity. Thus he consolidated and completed the work of that school of lawyer chancellors which had come with the chancellorship of Sir Thomas More. That the development of a system of equity did not make rapid way till after the Restoration was due wholly to political causes.

With the interlude of Bacon's successor, bishop Williams, I have already dealt. His successor Coventry was a lawyer, and carried on the business of the court on the lines which Bacon had laid down.

"5

Thomas Coventry "was a son of the robe, his father having been a judge in the court of common pleas." His rise was rapid. He became recorder of London in 1616 at the age of thirty-eight, in spite of Bacon's opposition, which seems to have been grounded upon his friendship with Coke. But he soon

1 Spedding, Letters and Life vi 208.

2 Ibid 283; on the other hand it would appear that this pace had not been fully maintained; in 1619 Chamberlain wrote to Carleton that "The Lord Chancellor's slackness causes a rumour that he is to have a Lord Keeper as a coadjutor," S.P. Dom. 1619-1623, 39, cviii 69; of course this may have been due to illness or to some other temporary cause.

3 See Mr. Heath's elaborate analysis of the case of Dr. Steward, Spedding, Letters and Life vii App. 579-588.

4 Above 226-227.

5 Clarendon, History of the Rebellion (ed. 1843) 19.

"The man upon whom the choice is like to fall, which is Coventry, I hold doubtful for your service; not but that he is well learned and an honest man, but he

proved that Bacon's suspicions were groundless. Whatever his earlier opinions may have been, he soon became a royalist in politics. He was made solicitor-general in 1617, attorneygeneral in 1621, and lord keeper in 1625. Though he was a believer in a strong prerogative, he was by no means a pliant courtier. He persuaded Charles I. to assent in regular form to the Petition of Right,' he advised against the dissolution of the Parliament in 1629,2 and he did not hesitate to oppose Buckingham's arrogance. It is true that he approved of the levy of ship money; but he took little active part in Charles's eleven years of prerogative rule. If he intervened it was on the side of moderation. "He was seldom known to speak," says Clarendon, "in matters of state, which, he well knew, were for the most part concluded, before they were brought to that public agitation; never in foreign affairs." 5 And so, unlike most of Charles's ministers, he both retained his office, and yet was esteemed by the people. He died in 1640, just after the writs for the Short Parliament had been issued. His last message to the king was a plea for patient forbearance with that Parliament-he advised the king, "to take all distastes from the Parliament summoned against April with patience, and suffer it to sit without an unkind dissolution." 7

8

The attention which Coventry gave to the business of the court is seen by the numerous Orders which he issued. Some of them were merely temporary. Thus we have several in 1636 dealing with the dislocation of business caused by the plague. There are very many made to regulate the duties of and fees payable to various officers of the court. Some of those duties and fees seem to have still been very badly defined; and Orders were still necessary to prevent officials from poaching upon one another's domains. In 1638, with a view to the settlement of this question, the king ordered juries to be impanelled from the

hath been bred as it were by Lord Coke and seasoned in his ways," Spedding, Letters and Life vi 97.

1 Foss, Judges vi 280.

3 Foss, Judges vi 280.

2 Gardiner vii 77.

4 Thus he with the Chief Justices took a lenient view in Sherfield's case, Gardiner vii 257; and in 1627 he resisted the attempt of the Council to treat a refusal to take press money as punishable by martial law, ibid vi 156-157.

5 Op. cit. 19.

He had, says Clarendon, op. cit. 53, "a rare felicity, in being looked upon generally throughout the kingdom with great affection, and a singular esteem, when very few other men in any high trust were so."

7 Hacket, Life of Williams ii 137.

8 Sanders, Chancery Orders i 193-196.

Ibid 137-161; 163, 164; 168-170; 171-173; 184-188; 189-191; 191-193; 197, 198; 200-202; 202-204; it would appear that parties were in the habit of paying masters and others for their reports, see Monro, Acta Cancellaria 209; but this was prohibited by 1 James I. c. 10.