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For that of the rege inconsulto, I argued the same in the king's bench on Thursday last. There argued on the other part Mr. George Crook, the judge's brother, an able book-man, and one that was manned forth with all the furniture that the bar could give him, I will not say the bench, and with the study of a long vacation. I was to answer, which hath a mixture of the sudden; and of myself I will not, nor cannot say any thing, but that my voice served me well for two hours and a half; and that those that understood nothing, could tell me that I lost not one auditor that was present in the beginning, but staid till the latter end. If I should say more, there were too many witnesses, for I never saw the court more full, that mought disprove me.
My lord Coke was pleased to say, that it was a famous argument; but withal, he asked me a politic and tempting question: for taking occasion by a notable precedent I had cited, where upon the like writ brought, all the judges in England assembled, and that privately, lest they should seem to dispute the king's commandment, and upon conference, with one mind agreed, that the writ must be obeyed. Upon this hold, my lord asked me, whether I would have all the rest of the judges called to it. I was not caught but knowing well that the judges of the common pleas were most of all others interested in respect of the prothonotaries, I answered civilly, that I could advise of it; but that I did not distrust the court; and, besides, I thought the case so clear, as it needed not.
Sir, I do perceive, that I have not only stopped, but almost turned the stream: and I see how things cool by this, that the judges that were wont to call so hotly upon the business, when they had heard, of themselves took a fortnight day to advise what they will do, by which time the term will be near at an end; and I know they little expected to have the matter so beaten down with book-law, upon which my argument wholly went so that every mean student was satisfied. Yet, because the times are as they are, I could wish, in all humbleness, that your Majesty would remember and renew your former commandment which you gave my lord chief justice in Michaelmas term, which was that after he had heard your attorney, which is now done, he should forbear farther proceeding till he had spoke with your Majesty.
It concerneth your Majesty threefold. First, in this particular of Murray; next, in consequence of fourteen several patents, part in queen Elizabeth's time, some in your Majesty's time, which depend upon the like question; but chiefly, because this writ is a mean provided by the ancient law of England, to bring any case that may concern your Majesty in profit or power, from the ordinary benches, to be tried and judged before your chancellor of England, by the ordinary and legal part of his power and 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 royal rights.
For the case of the commendams, a matter like
wise of great consequence, though nothing near the first, this day I was prepared to have argued it before all the judges; but, by reason of the sickness of the sergeant which was provided to argue on the other side, although I pressed to have had some other day appointed this term; yet it pleased divers of the judges to do me the honour, as to say it was not fit any should argue against me, upon so small time of warning, it is adjourned to the first Saturday
For the matter of the habeas corpus, I perceive this common employment of my lord chancellor, and my lord chief justice, in these examinations, is such a vinculum, as they will not square while these matters are in hand, so that there is altum silentium of that matter. God ever preserve your Majesty.
Your Majesty's most humble and bounden subject and servant, FR. BACON.
27th Jan. 1615.
CXXV. TO THE KING, ADVISING HIM TO BREAK OFF WITH THE NEW COMPANY.*
IT MAY PLEASE YOUR EXCELLENT MAJESTY, I SPAKE yesternight long with my lord Coke ; and for the rege inconsulto, I conceive by him it will be an amplius deliberandum censeo, as I thought at first, so as for the present your Majesty shall not need to renew your commandment of stay. I spake with him also about some propositions concerning your Majesty's casual revenue; wherein I found him to consent with me fully, assuming, nevertheless, that he had thought of them before; but it is one thing to have the vapour of a thought, another to digest business aright. He, on his part, imparted to me divers things of great weight concerning the reparation of your Majesty's means and finances, which I heard gladly; insomuch as he perceiving the same, I think was the readier to open himself to me in one circumstance, which he did much inculcate. I concur fully with him that they are to be held secret; for I never saw but that business is like a child, which is framed invisibly in the womb; and if it come forth too soon, it will be abortive. I know, in most of them, the prosecution must rest much upon myself. But I that had the power to prevail in the farmers' case of the French wines, without the help of my lord Coke, shall be better able to go through these with his help, the ground being no less just. And this I shall ever add of mine own, that I shall ever respect your Majesty's honour no less than your profit; and shall also take care, according to my pensive manner, that that which is good for the present, have not in it hidden seeds of future inconveniences.
The matter of the new company was referred to me by the lords of the privy council; wherein, after some private speech with Sir Lionel Cranfield, I made that report which I held most agreeable to truth, and your Majesty's service. If this new comRawley's Resuscitatio.
pany break, it must either be put upon the patent, or upon the order made by themselves. For the patent, I satisfied the board, that there was no tittle in it which was not either verbatim in the patent of the old company, or by special warrant from the table inserted. My lord Coke, with much respect to me, acknowledged, but disliked the old patent in itself, and disclaimed his being at the table when the additions were allowed. But in my opinion, howsoever my lord Coke, to magnify his science in law, draweth every thing, though sometimes improperly and unseasonably, to that kind of question, it is not convenient to break the business upon those points. For considering they were but clauses that were in the former patents, and in many other patents of companies; and that the additions likewise passed the allowance of the table, it will be but clamoured, and perhaps conceived, that to quarrel them now, is but an occasion taken; and that the times are but changed, rather than the matter. But that which preserveth entire your Majesty's honour, and the constancy of your proceedings, is to put the breach upon their orders.
For this light I gave in my report, which the table readily apprehended, and much approved; that if the table reject their orders as unlawful and unjust, it doth free you from their contract: for whosoever contracteth or undertaketh any thing, is always understood to perform it by lawful means; so as they have plainly abused the state, if that which they have undertaken be either impossible or unjust.
I am bold to present this consideration to that excellent faculty of your Majesty's judgment: because I think it importeth that future good which may grow to your Majesty in the close of this business; that the falling off be without all exception. God have you in his precious custody.
I shall now again make oblation to your Majesty, first, of my heart, then, of my service, thirdly, of my place of attorney, which I think is honestly worth 6000l. per annum, and fourthly, of my place in the star-chamber, which is worth 1600. per annum; and with the favour and countenance of a chancellor much more. I hope I may be acquitted of presumption if I think of it, both because my father had the place, which is some civil inducement to my desire, and I pray God your Majesty may have twenty no worse years in your greatness, than queen Elizabeth had in her model, after my father's placing, and
Your Majesty's most humble and bounden subject chiefly because the chancellor's place, after it went
Feb. 3, 1615.
to the law, was ever conferred upon some of the learned counsel, and never upon a judge. For Audeley was raised from king's serjeant; my father from attorney of the wards; Bromley from solicitor; Puckering from queen's serjeant: Egerton from master of the rolls, having newly left the attorney's place. Now, I beseech your Majesty, let me put you the present case truly. If you take my lord Coke, this will follow; first, your Majesty shall put an overruling nature into an overruling place, which may breed an extreme; next, you shall blunt his industries in matter of your finances, which seemeth to aim at another place; and lastly, popular men are no sure mounters for your Majesty's saddle. If you take my lord Hobart, you shall have a judge at the upper end of your council-board, and another at the lower end; whereby your Majesty will find your prerogative pent; for though there should be emulation between them, yet as legists they will agree in magnifying that wherein they are best; he is no statesman, but an economist wholly for himself; so as your Majesty, more than an outward form, will find little help in him for the business. + Stephens's First Collection, p. 81.
CXXVI. TO THE KING, TOUCHING THE
IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY,
I AM glad to understand by Mr. Murray, that your Majesty accepteth well of my poor endeavours in opening unto you the passages of your service, that business may come the less crude, and the more prepared to your royal judgment; the perfection whereof, as I cannot expect they should satisfy in every particular; so, I hope, through my assiduity there will result a good total.
doth minister unto you a counterpart to do the like,
Your Majesty's most humble subject and bounden
Feb. 9, 1615.
My lord chancellor's sickness falleth out duro tempore. I have always known him a wise man, and of just elevation for monarchy: but your Majesty's service must not be mortal. And if you lose him, as your Majesty hath now of late purchased many hearts by depressing the wicked; so God *Rawley's Resuscitatio.
CXXVI. TO THE KING.†
IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY, YOUR worthy chancellor, I fear, goeth his last day. God hath hitherto used to weed out such servants as grew not fit for your Majesty; but now he hath gathered to himself one of the choicer plants, a true sage, or salvia, out of our garden; but your Majesty's service must not be mortal.
Upon this heavy accident I pray your Majesty, in all humbleness and sincerity, to give me leave to use a few words. I must never forget, when I moved your Majesty for the attorney's place, that it was your own sole act, and not my lord of Somerset's; who when he knew your Majesty had resolved it, thrust himself into the business to gain thanks; and therefore I have no reason to pray to saints.
If you take my lord of Canterbury, I will say no more, but the chancellor's place requires a whole man; and to have both jurisdictions, spiritual and temporal, in that height, is fit but for a king.
For myself, I can only present your Majesty with "gloria in obsequio;"* yet I dare promise, that if I sit in that place, your business shall not make such short turns upon you, as it doth; but when a direction is once given, it shall be pursued and performed, and your Majesty shall only be troubled with the true care of a king, which is, to think what you would have done in chief, and not how for the passages.
I do presume also, in respect of my father's memory, and that I have been always gracious in the lower house, I have some interest in the gentlemen of England, and shall be able to do some good effect in rectifying that body of parliament-men, which is cardo rerum. For let me tell your Majesty, that that part of the chancellor's place, which is to judge in equity between party and party, that same regnum judiciale, which since my father's time is but too much enlarged, concerneth your Majesty least, more than the acquitting of your conscience for justice: but it is the other parts, of a moderator amongst your council, of an overseer over your judges, of a planter of fit justices and governors in the country, that importeth your affairs and these times most.
I will add also, that I hope by my care the inventive part of your council will be strengthened; who now commonly do exercise rather their judgments than their inventions, and the inventive part cometh from projectors and private men, which cannot be so well; in which kind my lord of Salisbury had a good method, if his ends had been upright.
To conclude: if I were the man I would be, I should hope, that as your Majesty hath of late won hearts by depressing, you should in this lose no hearts by advancing: for I see your people can better skill of concretum than abstractum, and that the waves of their affections flow rather after persons than things: so that acts of this nature, if this were one, do more good than twenty bills of grace. If God call my lord, the warrants and commissions which are requisite for the taking of the seal, and for the working with it, and for the reviving of warrants under his hand, which die with him, and the like, shall be in readiness. And in this, time presseth more, because it is the end of a term, and almost the beginning of the circuits; so that the seal cannot stand still: but this may be done as heretofore by commission, till your Majesty hath resolved of an officer. God ever preserve your Majesty.
Your Majesty's most humble subject and bounden servant,
Feb. 12, 1615.
"Gloria in obsequio" is taken from the sixth book of the Annals of Tacitus: where some persons being accused for their intimacy with Sejanus, the late great favourite of the emperor Tiberius; M. Terentius, a Roman knight, did not, like others, excuse or deny the same for fear of punishment; but doth in the senate make an ingenuous confession thereof, and gives his reasons why he not only courted, but rejoiced in obtaining the friendship of Sejanus. And then addresses himself as if speaking to Tiberius, in these words; Non est
CXXVIII. A LETTER TO THE KING, OF MY LORD CHANCELLOR'S AMENDMENT, AND THE DIFFERENCE BEGUN BETWEEN THE CHANCERY AND KING'S BENCH.†
IT MAY PLEASE your excellent MAJESTY,
I DO find, God be thanked, a sensible amendment in my lord chancellor: I was with him yesterday in private conference about half an hour; and this day again, at such a time as he did seal, which he endured well almost the space of an hour, though the vapour of wax be offensive to him. He is free from a fever, perfect in his powers of memory and speech; and not hollow in his voice nor look; he hath no panting or labouring respiration; neither are his coughs dry or weak. But whosoever thinketh his disease is but melancholy, he maketh no true judgment of it; for it is plainly a formed and deep cough, with a pectoral surcharge; so that at times he doth almost animam agere. I forbear to advertise your Majesty of the care I took to have commissions in readiness, because Mr. Secretary Lake hath let me understand, he signified as much to your Majesty: but I hope there shall be no use for them at this time. And as I am glad to advertise your Majesty of the amendment of your chancellor's person, so I am sorry to accompany it with an advertisement of the sickness of your chancery court, though by the grace of God that cure will be much easier than the other. It is true I did lately write to your Majesty, that for the matter of the Habeas corpora, which was the third matter in law you had given me in charge, I did think the communion in service between my lord chancellor and my lord chief justice, in the great business of examination, would so join them as they would not square at this time; but pardon me, I humbly pray your Majesty, if I have too reasonable thoughts.
And yet that which happened the last day of term, concerning certain indictments in the nature of præmunire, preferred into the king's bench, but not found, is not so much as is voiced abroad; though I must say, it is "omni tempore nimium, et hoc tempore alienum :" and therefore, I beseech your Majesty not to give any believing ear to reports, but to receive the truth from me, that am your attorney-general, and ought to stand indifferent for jurisdictions of all courts; which account I cannot give your Majesty now, because I was then absent; and some are now absent, which are properly and authentically to inform me touching that which passed. Neither let this any ways disjoint your other business, for there is a time for all things, and this very accident may be turned to good. Not that I am of opinion that that same cunning maxim of nostrum æstimare, quem supra cæteros, et quibus de causis extollas: tibi summum rerum judicium dii dedere: nobis obsequii gloria relicta est.' 'It does not become us to inquire into the person you are pleased to prefer above others, or into the reasons: to you heaven has given a consummate judg ment; to us there remains the glory of a cheerful obedience.' Stephens.
CXXIX. TO SIR GEORGE VILLIERS.*
I RECEIVED this morning from you two letters by the same bearer; the one written before, the other after his Majesty had received my last.
In this difference between the two courts of chancery and king's bench, for so I had rather take it for this time, than between the persons of my lord chancellor and my lord chief justice, I marvel not, if rumour get way of true relation; for I know fame hath swift wings, especially that which hath black feathers but within these two days, for sooner I cannot be ready, I will write unto his Majesty both the narrative truly, and my opinion sincerely; taking much comfort that I serve such a king that hath God's property in discerning truly of men's hearts. I purpose to speak with my lord chancellor this day and so to exhibit that cordial of his Majesty's grace, as I hope that other accident will rather rouse and raise his spirit, than deject him, or incline him to relapse. Meanwhile I commend the wit of a mean man that said this other day, "Well, the next term you shall have an old man come with a besom of wormwood in his hand that will sweep away all this." For it is my lord chancellor's fashion, specially towards the summer, to carry a posy of wormwood. I write this letter in haste to return your messenger with it. God keep you; and long and happily may you serve his Majesty.
Your true and affectionate servant,
Feb. 19, 1615.
Sir, I thank you for your inward letter; I have burned it as you commanded: but the fire it hath kindled in me will never be extinguished.
CXXX. TO SIR GEORGE VILLIERS, ABOUT SWEARING HIM INTO THE PRIVY COUNCIL.+
upon the king and your excellent self, but because I find hourly that I need this strength in his Majesty's service, both for my better warrant and satisfaction of my conscience, that I deal not in things above my vocation; and for my better countenance and prevailing, where his Majesty's service is, under any pretext, opposed, I would it were despatched. I remember a greater matter than this was despatched by a letter from Royston, which was the placing of the archbishop that now is; and I imagine the king did it on purpose, that the act might appear to be his own.
My lord chancellor told me yesterday in plain terms, that if the king would ask his opinion touching the person that he would commend to succeed him upon death or disability, he would name me for the fittest man. You may advise, whether use may
not be made of this offer.
I sent a pretty while since a paper to Mr. John Murray, which was indeed a little remembrance of some things past, concerning my honest and faithful services to his Majesty; not by way of boasting, from which I am far, but as tokens of my studying his service uprightly and carefully. If you be pleased to call for the paper, which is with Mr. John Murray, and to find a fit time that his Majesty may cast an eye upon it, I think it will do no hurt; and I have written to Mr. Murray to deliver the paper, if you call for it. God keep you in all happiness. Your truest servant, FR. BACON.
Feb. 1, 1615.
My lord chancellor's health growing with the days, and his resignation being an uncertainty, I would be glad you went on with my first motion, my swearing privy counsellor. This I desire not so much to make myself more sure of the other, and to put it past competition, for herein I rest wholly Rawley's Resuscitatio. + Ibid.
CXXXI. TO THE KING, CONCERNING THE PRÆMUNIRE IN THE KING'S BENCH, AGAINST THE CHANCERY.‡
IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY, I WAS yesterday in the afternoon with my lord chancellor according to your commandment which I received by the master of the horse, and find the old man well comforted, both towards God, and towards the world: and that same middle comfort which is divine and human, proceeding from your Majesty, being God's lieutenant on earth, I am persuaded, hath been a great cause that such a sickness hath been portable to such an age. I did not fail in my conjecture, that this business of the chancery hath stirred him; he showeth to despise it, but he is full of it, and almost like a young duellist that findeth himself behind-hand.
I will now, as your Majesty requireth, give you a true relation of that which hath passed: neither will I decline your royal commandment for delivering my opinion also, though it be a tender subject to write on; but I that account my being but as an accident to my service, will neglect no duty upon self-safety.
First, it is necessary I let your Majesty know the ground of the difference between the two courts, that your Majesty may the better understand the narrative.
præmunire, for suing in chancery after judgment in common law; the one by Rich. Glanville, the other by William Allen: the former against Courtney, the party in chancery, Gibb the counsellor, and Deurst the clerk; the latter against alderman Bowles and Humfrey Smith, parties in chancery; serjeant More the counsellor, Elias Wood, solicitor in the cause, and Sir John Tindal, master of the chancery, and an assessor to my lord chancellor.
There was a statute made 27 Edw. III. cap. 1, | cellor's life, there were two indictments preferred of which, no doubt, in the principal intention thereof, was ordained against those that sued to Rome; wherein there are words somewhat general against any" that questioneth or impeacheth any judgment given in the king's courts, or in any other court." Upon these doubtful words, other courts, the controversy groweth. For the sounder interpretation taketh them to be meant of those courts, which though locally they were not held at Rome, or where the pope's chair was, but here within the realm; yet in their jurisdiction had their dependence upon the court of Rome; as were the court of the legate here, and the courts of the archbishops and bishops, which were then but subordinate judgment-seats to that high tribunal of Rome. And for this construction, the opposition of the words, if they be well observed, between the king's courts and other courts, maketh very much; for it importeth as if those other courts were not the king's courts. Also the main scope of the statute fortifieth the same. And lastly, the practice of many ages. The other interpretation, which cleaveth to the let ter, expoundeth the king's courts to be the courts of law only, and other courts to be courts of equity, as the chancery, exchequer-chamber, duchy, &c. Though this also flieth indeed from the letter, for that all these are the king's courts.
There is also another statute, which is but a simple prohibition, and not with a penalty of a præmunire, as the other is, "that after judgments given in the king's courts, the parties shall be in peace, except the judgment be undone by error or attaint," which is a legal form of reversal. And of this also I hold the sounder interpretation to be to settle possessions against disturbances, and not to take away remedy in equity, where those judgments are obtained ex rigore juris, and against good conscience. But upon these two statutes there hath been a late conceit in some, that if a judgment pass at the common law against any, that he may not after sue for relief in chancery; and if he doth, both he, and his counsel, and his solicitors, yea and the judge in equity himself, are within the danger of those statutes.
Here your Majesty hath the true state of the question, which I was necessarily to open to you first, because your Majesty calleth for this relation, not as news, but as business. Now to the historical part.
It is the course of the king's bench, that they give in charge to a grand jury offences of all natures, to be presented within Middlesex, where the said court is; and the manner is, to enumerate them as it were in articles. This was done by justice Crook, the Wednesday before the term ended. And that article, If any man, after a judgment given, had drawn the said judgment to a new examination in any other court, was by him specially given in charge; which had not used to be given in charge before. It is true, it was not solemnly dwelt upon, but as it were thrown in amongst the rest.
The last day of the term, and, that which all men condemn, the supposed last day of my lord chan
For the cases themselves, it were too long to trouble your Majesty with them; but this I will say, if they were set on that preferred them, they were the worst marksmen that ever were that set them on. For there could not have been chosen two such causes to the honour and advantage of the chancery, for the justness of the decrees, and the foulness and scandal both of fact and person, in those that impeach the decrees.
The grand jury, consisting, as it seemeth, of very substantial and intelligent persons, would not find the bills, notwithstanding they were clamoured by the parties, and twice sent back by the court; and in conclusion, resolutely seventeen of nineteen found an Ignoramus; wherein, for that time, I think Ignoramus was wiser than those that know too much.
Your Majesty will pardon me, if I be sparing in delivering to you some other circumstances of aggravation, and of concurrences of some like matters the same day; as if it had been some fatal constellation. They be not things so sufficiently tried, as I dare put them into your ear.
For my opinion, I cannot but begin with this preface, that I am infinitely sorry that your Majesty is thus put to salve and cure, not only accidents of time, but errors of servants; for I account this a kind of sickness of my lord Coke's, that comes almost in as ill a time as the sickness of my lord chancellor. And as, I think, it was one of the wisest parts that ever he played, when he went down to your Majesty to Royston, and desired to have my lord chancellor joined with him; so this was one of the weakest parts that ever he played, to make all the world perceive that my lord chancellor is severed from him at this time.
But for that which may concern your service, which is my end, leaving other men to their own ways, first, my opinion is plainly that my lord Coke at this time is not to be disgraced; both because he is so well habituate for that which remaineth of these capital causes, and also for that which I find is in his breast touching your finances and matters of repair of your estate; and, if I might speak it, as I think it were good his hopes were at an end in some kind, so I could wish they were raised in some other.
On the other side, this great and public affront, not only to the reverend and well deserving person of your chancellor, and at a time when he was thought to lie on dying, which was barbarous, but to your high court of chancery, which is the court of your absolute power, may not, in my opinion, pass lightly, nor end only in some formal atonement, but use is to be made thereof for the settling of your