« AnteriorContinuar »
saw, or thought he saw, in Coke a formidable competitor; and from the moment that this cause of present jealousy was added to his sense of past injuries, he seems to have omitted no occasion of calling the attention of the king to the rigidly constitutional conduct of Coke, in contrast with that entire devotedness to the cause of prerogative on which he himself relied as the chief means of his promotion. It may be worth while to quote some passages of his letters to this effect, which will serve the further purpose of illustrating the character of James, and of refuting the commonly received opinion that his theoretical despotism was not carried into practice.
Early in the year 1615, the study of one Peacham being searched, there was found a manuscript sermon, never preached, containing passages looked upon as treasonable. The king was resolved, if possible, to bring the author to punishment; but as there was good reason to doubt whether the mere writing of such a paper could be construed into treason, he ordered that the opinions of the judges on the case should be taken privately and separately, before the prisoner was brought to trial. Bacon and some other crown lawyers were employed on this business, and he thus relates his success in a letter to the king:-“We did first find an encounter in the opinion of my lord Coke; who seemed to affirm that such particular, and, as he called it, auricular taking of opinions, was not according to the custom of this realm; and seemed to divine that his brethren would never do it. But when I replied, that it was our duty to pursue your majesty's directions; and it were not amiss for his lordship to leave his brethren to their own answers, it was so concluded: and his lordship did desire that I might confer with himself, and Mr. serjeant Montague was named to speak with justice Crook; Mr. serjeant Crew with justice Houghton, and Mr. solicitor with justice Dodderidge. This done, I took my fellows.aside, and advised that they should presently speak with the three judges, before they could speak with my lord Coke, for doubt of infusion; and that they should not in any case make any doubt to the judges, as if they mistrusted they would not deliver any opinion apart, but speak resolutely to them, and only make their coming to be, to know what time they would appoint to be attended with the papers. “This," as he goes on to relate, “sorted not amiss" with the puisne judges, though Houghton hesitated; but Coke remained intractable. In two or three conferences on the subject he repeated his former objections to the legality of the step; and on Bacon's urging the compliance of his brethren, “ he said (which I noted well) that his brethren were wise men, and that they might make a show as if they would give an opinion, as was required; but the end would be that it would come to this: they would say they doubted of it, and so pray advice with the rest. But to this I answered, that I was sorry to hear him say so much, lest, if it came to pass, some that loved him not might make a con
struction, that, that which he had foretold, he had wrought.”
In the end, after maturely deliberating and weighing all the precedents brought him, the lord-chiefjustice returned indeed an answer to the points on which he was consulted; but one in no respect likely to satisfy the king, in which consideration his rival evidently triumphs.
In the matter of Mr. Oliver St. John of Wiltshire, who had addressed to the mayor of Marlborough a statement of his reasons for refusing to contribute to a benevolence imposed by the king's sole authority, and who for this cause was censured and heavily fined in the star-chamber, Coke proved but too obsequious to prerogative; yet his conduct is thus adverted to by Bacon in writing to James: “ Mr. St. John his day is past; and well past. I hold it to be Janus Bifrons. It hath a good aspect to that which is past, and to the future, and doth both satisfy and prepare. All did well. My lordchief-justice delivered the law for the benevolence strongly; I would he had done it timely.”
The next important business which occurred was a contest between the king's-bench and the court of chancery respecting jurisdiction, the grounds of which are explained very distinctly in one of Bacon's letters to his majesty. Two statutes existed, by which it was prohibited, on pain of a præmunire to all concerned, to question or impeach the judgements given in the king's courts, or to seek a reversal of such judgements otherwise than by error,
or attaint; and upon these statutes the judges evinced an intention of disputing the right of the court of chancery to undo their decisions: judge Crook accordingly, in addressing the grand jury for Middlesex, had specially given in charge this article: “If any man, after a judgement given, hạd drawn the same judgement to a new examination in any other court?" and the same term, two indictments were preferred for suing in chancery after judgements at common law; to which the grand jury, however, though “ clamored by the parties and twice sent back by the court,” returned an Ignoramus. The lord-chancellor was at this time dangerously ill; and the king, indignant at such presumption on the part of the sages of the common law, reqạired Bacon to inform him fully in the business. It is thus that, in compliance with his majesty's command, he proceeds, after stating the facts, to offer his advice:
“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 lordchancellor. 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 hima; 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.
a In the examination of Overbury's murder.
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 matter of your estate. And (if I mought 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 authority and strengthening of your prerogative, according to the true rules of monarchy.
Now, to reconcile and accommodate these two advices, which seem almost opposite. First, your majesty may not see it, though I confess it be suspicious, that my lord Coke was any way aforehand privy to that which was done; or that he did set or animate it; but only took the matter as it came before him: and that his error was only, that, at such a time, he did not divert it in some good manner.