counties,1] and good expedition of justice; yet are they of more use for the government of the countries through which they pass, if that were well thought upon. For if they had instructions for that purpose, they might be the best intelligencers to the King of the state of the whole kingdom, of the dispositions of the people, of their inclinations, of their mutations and motions, which are necessary to be understood truly. 6. To this end I could wish, that against every circuit all the Judges should, sometimes by the King himself, or sometimes by the Lord Chancellor or Lord Keeper in the King's name, receive a charge of those things which the present times did most require; and at their return should deliver a faithful account thereof, how they found and left the countries thorough which they passed, and in which they kept their assizes. 7. And that they might the better perform this work, which might be of great importance, it will not be amiss that the charge given the Judges be sometimes in public, as it useth to be in the Star-chamber, at the end of the term next before the circuit begin, where the King's care of justice and the good of the people may be published; and that sometimes also it may be given them in private, to communicate to the Judges some things not so fit to be publicly delivered. 8. I could wish also that the Judges were directed to make a little longer stay in a place than usually they do; a day more in a country would be a good addition, although their wages were for their circuits increased in proportion: it would stand better with the gravity of the employment; whereas now they are sometimes enforced to rise over-early and to sit over-late for the dispatch of their business, to the extraordinary trouble of themselves and of the country; the times not indeed being horæ juridice; and which is more, they would have the more leisure of informing themselves, quasi aliud agentes, of the true state of the country. 9. The attendance of the sheriffs of the counties, accompanied with the principal gentlemen, in a comely, not costly equipage, upon the Judges of assize at their coming into the The words within the brackets are supplied from the Cabala, the reading of which ("the trial of a few causes between party and party or delivering of the gaols in the several counties are of great use for the expedition of justice, yet they are of much more use,” etc.,) appears to be otherwise less correct. They" must, I think, mean the Judges, not the trial of causes. place of their sitting, and at their going out, is not only a civility, but of use also: it raiseth a reverential respect to the persons and places of the Judges, who coming from the King himself of so great an errand, should not be neglected. : 10. If any sue to be made a Judge, for my own part I should suspect him but if he should directly or indirectly bargain for a place of judicature, let him be rejected with shame; Vendere jure potest, emerat ille prius: He that buys in gross, believe me he will sell in retail.1 11. When the place of chief Judge in a court becomes vacant, and a puisne Judge of the same court, or of another court, hath approved himself fit and deserving, it would be a singular good encouragement for him and others if such an one be sometimes preferred and advanced. 12. Next to the Judges, there would be care taken in the choice of such as are called to the degree of Sergeants at Law, for such they must be before they be made Judges. None should be made Sergeants but such as probably might be held fit to be Judges3 afterwards, when their experience at the bar hath fitted them for the bench: therefore by all means cry down that unworthy course of late times, that they should pay monies for it; it may satisfy some courtier, but it is no honour to the person so preferred, nor to the King who prefers him. 13. For the King's counsel at law, especially his Attorney General and Solicitor General, I need say nothing: their continual use for the King's service, not only for the revenue, but for all the parts of his government, will put the King in mind, and those who love his service, to make choice of men every way fit and able for that employment; they had need be learned in their profession, and not ignorant in other things, and to be dexterous in the discharge of their affairs. 14. The King's Attorney in the Court of Wards is in the true quality of the Judges; therefore what hath been observed already of the Judges (which are intended principally of the three great courts of law at Westminster) may be applied to the choice of the Attorney of that court. 15. The like for the Attorney of the Duchy of Lancaster, who partakes of both qualities, partly of a judge in the court, and 1 L. omits the Latin verse: C. omits the translation. 3 This clause is omitted in L., and supplied from C. 2 in Court. L. partly of an attorney-general, for so much as concerns the proper revenues of the Duchy. 16. I must not forget the Judges of the four circuits in the twelve counties of the Principality of Wales, who although they are not of the first magnitude, nor need to be of the degree of the coif, (only the Chief Justice of Chester, who is one of the number, is so,) yet are they considerable in the choice of them, by the same rules as the other Judges are; and they sometimes are, and fitly may be, transplanted into the higher courts. : 17. There are many courts, some superior, some provincial, and of a lower orb it were to be wished, and it is fit to be so ordered, that every of them keep themselves within their proper spheres. The harmony of justice is then1 the sweetest, when there is no jarring about the jurisdiction of their courts; which methinks wise men cannot differ upon, their true bounds are for the most part so truly known. : 2 18. Having, Sir, said thus much of the Judges, somewhat will be fit to put you in mind concerning the ministers of justice the High Sheriffs of the counties in the first place, which have been very ancient in this kingdom; I am sure before the conquest. The choice of them I recommend to your care, and that you (at times fit for it) do put the King in mind of it; that as near as may be they be such as are fit for those places for they are of great trust and power; [the posse comitatus, the power of3] the whole county being legally committed unto them. : 19. It is agreeable with the intention of the law that the choice of the High Sheriffs should be by the recommendation of the great officers of the kingdom, and by the advice of the Judges, who are presumed to be well read in the gentry of the kingdom: although the King may do it of himself, yet the old way is the good way. 20. I do also utterly condemn the practice of the later times, which hath of late crept in the court (at the back-stairs), that some who were pricked for sheriffs and were fit men for the office should make means to get out of the list; and others that 2 principal ministers. C. 3 The words within the brackets are supplied from C. were never thought upon, nor yet of that worth to be sheriffs, should be nominated; and both for money. 21. I must not omit to put you in mind of the Lords Lieutenants and the Deputy Lieutenants of the several counties: their proper use is for the ordering the military affairs, in order against an invasion from abroad, a sedition, insurrection, or rebellion at home; good choice would be made of them, and prudent instructions given to them,1 and as little of the arbitrary power as may be left unto them; and that the mustermasters, and other under officers, encroach not upon the subject.2 22. The Justices of the Peace are of great use. Anciently, there were the conservators of the peace; these are the same, saving that the several acts of Parliament have altered their denomination, and enlarged their jurisdiction in many particulars the fitter they are in their places for the peace of the kingdom, the more heed ought to be taken in the choice of them. 23. But negatively, this I shall be bold to advise, that none be put into either of these commissions with an eye of favour unto their persons, to give them countenance or reputation in the place where they live, but for the King's service sake only; nor any be put out for the displeasure of any great man: it hath been too often used, and it hath been no good service to his Majesty. 24. A word more Sir, (if you please to give leave) for the moderation of justice on the King's part. The execution of justice is committed to the Judges, which seemeth to be the severer part; but the milder part, which is mercy, is wholly left in the King's immediate hand: and justice and mercy are the true supporters of his royal throne. For if the King shall be wholly intent upon justice, it may look with an over-rigid aspect; and if the King shall be too remiss and easy, it draweth contempt upon him. Examples of justice must sometimes be made for terror to some; and examples of mercy sometimes for comfort to others; the one procures fear, and the other begets love. A king must be both loved and feared, else he is lost. 25. The ordinary courts of justice I have spoken of, and of This clause is omitted in L. and supplied from C. 2 that will detract much from the King's service. C. their judges and judicature: I shall now put you in mind of some things touching the High Court of Parliament in England, which is superlative; and therefore it will behove me to speak the more warily of it. 26. For the true constitution thereof consists of the two houses, of Lords and Commons, as the members; and the King's Majesty, as the head of that great body. By the King's authority alone, and by his writ, the members of both the houses are assembled, and by him alone are they prorogued and dissolved; but each house may adjourn itself. 27. They being thus assembled, they are more properly a Council to the King, the great Council of the Kingdom, to advise his Majesty of those things of weight and difficulty which concern both the King and kingdom, than a court. 28. No new laws can be made, or old ones abrogated and altered, but by common consent in Parliament, where bills are prepared and presented to the two houses, and there seriously debated; but nothing is concluded but by the King's royal assent in person or by his commissioners delegated; they are but embryos, till he gives life unto them. 29. Yet the House of Peers have power of judicature in some cases: properly to examine, then to affirm, or (if there be cause) to reverse the judgment which hath been given in the King's Bench, which is the court of the highest judicature in this kingdom for ordinary judicature; but in those cases it must be done by writ of error in Parliament: and then their proceeding is not absoluta potestas, as in making new laws, in that conjuncture as before is said, but potestas limitata, according to the rule of the known laws of this land. 30. But the House of Commons hath only power to censure the members of their own house, in point of election and misdemeanors in or towards that house; and have not, nor ever had the power so much as to administer an oath in any case whatsoever to prepare a judgment. 31. The true use of Parliaments in this kingdom is very excellent; and they would be often called, as the arduous affairs etc. 1 For the institution of it, it is very ancient in this kingdom: it consisteth, C. 2 People. C. 3 then delivered. C. and thus the rule of their proceeding. C. 4 jurisdiction. C. 6 L. omits "would." |