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THE

ARGUMENT ON THE WRIT

DE

NON PRECEDENDO REGE INCONSULTO.

PREFACE.

I HAVE already explained why this argument is reprinted from the Collectanea Juridica, and not from the Stowe MS. I have only made obvious verbal and typographical corrections, and have generally noted the former.

The case is reported by Moore, p. 842.; by Bulstrode, vol. iii. p. 32.; and by Rolle, vol. i. pp. 188. 206. and 288. It commenced in Easter Term, 1615. This last speech of Bacon's was delivered January 25th, 1615-6: the former editor, though giving references to all the reports, seems not to have looked at Rolle, who at p. 288. gives a full summary of it, and has been misled by Bulstrode into imagining that it was prepared, but never spoken. Bacon himself, on the contrary, says it had "a mixture of the sudden." He adds, that it took two hours and a half in the delivery, and "lost not one auditor that was present at the beginning," and that Coke pronounced it to be "a famous argument."

The case was this:

3

1

In or before September, 16112, John Murray, Groom of the Bedchamber, procured the appointment of the defendant Michell to a newly created Patent Office, "for the sole making cf writs of Supersedeas quia improvidè emanavit, in the Common Pleas." The plaintiff Brownlow, who had held the office of Prothonotary from the time of Elizabeth, brought an assize to be restored to the possession of the ancient fees attached to this

1 See his letter to the King, January 27th, 1615-6.

2 It is difficult and not material to make out the exact facts and dates. It is said that two Patents were recited in the Writ de non procedendo; the date of the first being January 9th, 7 Jac. i. e. 1609-10. Sept. 19th, 1611, is the date of a Docket in the State Paper Office, directing Sir William Killigrew or his deputy, "to be acquainted with the Patent made to John Michell, at the suit of John Murray, &c." One Cox or Cop was a co-defendant, and I suppose the two Patents may somehow have reference to the two names.

3 Sir John in the Reports, Esquire in the S. P. O.

Burke's Extinct Baronetages, the only authority which I could light upon after some search.

duty, and so raised the question whether the patent was lawful. The cause of the delay till 1613 is not explained.

Bacon disclaims having had any hand in passing this patent.' Murray was influential at Court; his name occurs not unfrequently in the S. P. O. Calendar, as the recipient of grants of various kinds in his own name; and Bacon speaks of him as directly interested in this case. It seems probable, therefore, that the grant was made merely improvidè, as matter of favour, and without any deliberate design either of altering the constitution of the offices of the Common Law Courts, or of providing for the necessities of the Crown, after the French fashion, by the creation and sale of new offices.

But it appears that in this, as in the contemporary business of monopolies, James was running into difficulties before which Elizabeth had already found it expedient to give way. She too had attempted to erect the same office, and the Judges of the day had refused obedience to letters and privy seals ordering them to receive the patentee into his office. The final settlement of the dispute looks like a device of her own, for extricating herself with as much dignity and as little loss of power as might be. A fresh command was sent that the Judges should receive Cavendish, the patentee, or appear before the Chancellor and the Master of the Rolls to state the reason of their refusal. They did so, citing Magna Charta -- that no man shall be disseised of his freehold," and the queen was satisfied." 2

Whether this case was known to Bacon before the argument in Trin. Term, when it was alleged on the other side, does not appear.3 But the course which he took from the first, not only made it impossible for him to recede without some disgrace to the King, but brought in question the limits of a much more important claim of the prerogative than that of re-modelling the offices of the Common Law Courts without the assent of

1 Infrà. p. 700.

* Rolle, p. 206., gives the fullest account of this case, but all the other Reporters mention it. If Brownlow had come into office after Michell, the particular ground on which the Judges rested their refusal would not have applied in Michell's case, though it would still have been rash to renew the dispute.

3 While these pages were passing through the press, I found in Harl. MSS. 1756. (a volume containing some of Bacon's works), p. 548., a report of Cavendish's case, which may very well be Anderson's, which was mentioned in the Court. It seems there was no formal decision: but the Chancellor and Master of the Rolls reported "their good allowance" of the Judge's reasons, which the Reporter "heard her Majesty did well accept," and nothing more was heard of the matter.

Parliament, whether with or without consideration of vested rights. When asking time to plead, he described the original question in the cause as affecting one of the "four columns of the prerogative,”—viz. that concerning matters judicial,— "which he should ever maintain according to his place:" and when the time for pleading came he and the solicitor-general appeared with a formal message from the King and presented the writ de non procedendo. He endeavoured to stop any argument on the writ, insisting it was peremptory and not to be questioned: this was overruled, and the matter was argued on the other side, and for the Crown by the solicitor-general, in Trin. Term; and finally Bacon was heard in Hil. Term, Jan. 25th. The reporters say both sides were very confident of success: Bacon thought he had produced a great effect; but nevertheless, "because the times were as they were," recommended the King, who had interfered once or twice with the cause before, to reiterate his command that the Chief Justice, having heard the attorney-general, should forbear further proceeding till he had communicated with his Majesty. It will be seen that in his argument he treats the writ as concerning rather the dignity than the substantial power of the Crown: Mr. Brownlow would have his cause heard on the Common Law side of Chancery, instead of in the King's Bench, and no doubt would have justice done to him. But in his letter to the King he explains that the chief importance of the proceedings was in bringing any case that might concern the King, in profit or in power, from the ordinary benches to the Chancellor, who (as the King knew)" is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king."

The Judges did not dispute, nor could they, that there were abundant precedents of this writ. The only question, had they proceeded to judgment, would have been whether they could see their way to have fixed some reasonable and constitutional bounds, definable by law, within which it was to be allowed. Bacon, it will be observed, had at first contended that the writ was to be obeyed without any opportunity of discussion in other words that the mandatory part alone was to be looked at. When beaten from this, he here argues that it was only necessary that it should assert that the King had a right, and should show that, if it existed, the case touched it; the Chancellor being thereupon made the judge whether such a

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