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present disputation, namely, in the aid and in the rege inconsulto which is this; the law hath devised that there must be a double procedendo; first, in loquelâ only; then, ad judicium. Whereupon I conclude, that if when there appears a cause of a procedendo, yet the suit shall not be at full liberty, but it is but as the opening of a double lock; à fortiori it is reason to arrest it at the beginning, before any cause of procedendo shewed.

And the last is some precedents of extraordinary mandates of the king in matters of justice, in cases where the king was not the party interested; whereupon I will also conclude, that if the king, out of his great power of administration and regiment of justice, when he is not interested, may make such mandate, à fortiori he may do it where he is interested, and where his disinherison cometh in question.

It is a great prerogative in opening of justice that the king may enter by what gate he will, and that the statute of Magna Charta, communia placita non sequantur curiam nostram, bindeth not the king; as if the king will bring a writ of escheat, which is merely a common plea, he may bring it in his court of the king's bench; which no subject can do. So is Fitzherbert, Nat. Brev. fo. 17. in his writ of right in London. So may he bring his quare impedit, Ibid. fo. 32. where you shall see the general ground is taken, that the king may sue that writ where it please him, according to the book of 46 E. 3. fo. 12. by Finchedon, and divers other books. So that electio fori, which otherwise is limited and distributed where there are courts for several suits, is ever the king's.

Now then I conclude, ut supra, that the king shall lead and not be led; and that if the king shall have choice of his courts upon his demand, much more shall he have it upon his defence; for, as the Civilian saith well, in petitione periclitatur lucrum, in defensione periclitatur damnum, in the one case the king striveth for that he hath not, in the other case he is in hazard to lose that he hath.

For the second prerogative of mere dilatories, I will first put the case of the tenants of Northumberland. The tenants and inhabitants of Northumberland were so vexed by war with Scotland, that they could not till their lands; they were fain to betake themselves from the plough to the sword, et curvæ rigidum falces conflantur in ensem; whereupon the landlords

brought their cessavit, because the land laid fresh, and they could not distrain for their rents and services. The king sends his mandates to the chancery, that no cessavit shall be granted; and to the judges of the common pleas, that if any cessavit come, they shall surcease the plea; and both courts hold it good.

In 22. Ass. pl. 9. the king's writ came, reciting, that it was ordained by the king and the great men of the realm, that an assise brought against any that were in the king's service in France should be stayed, and certifying that the defendant was at Calais in the king's service, and commanding the judges to discontinue the assise; and obeyed, notwithstanding, saith the book, the statute of 1 Ed. 3. that neither for great seal nor privy seal the court shall surcease; for that was meant in respect of letters and consideration of favour between party and party, and not of mandates of state or upon legal interest in the king.

So I find a record in the exchequer, 17 E. 3. Rot. Hiberniæ 13. The citizens of Dublin sued Will. de Canall, who brought his writ of error in the king's bench of England. The king, disliking this tossing of justice upon the seas, sent his writ to the justices of this court, commanding ut supersedeant in probatione errorum ad sectam Will. Canall versus cives de Dublin, et quod recordum et processus loquelæ prædictæ transmittant justitiariis Hiberniæ.

The like record I find 17 E. 3. Rot. Hiberniæ 37. between Jeffrey Greenfield and Jeanne de Tyrone, ut supersedeant et transmittant; and obeyed.

It may be said, that these cases seem to be but a case of point of state; but then take this with you, that the eye of the law of England ever beholds the king's treasure and profit as matter of state, as it is indeed; they are the sinews of the crown. The case in 4 E. 3. 19. and again fo. 21. is very notable, taking it with all the circumstances. Sherwood being attainted in redisseisin, and a capias pro fine regis awarded, was sued also in trespass, and a capias pro fine was awarded likewise in the trespass; whereupon a mandate by privy seal came to the court, reciting the conviction of the redisseisin, commanding the court to grant a supersedeas upon the capias in the trespass, for that the king would not that Sherwood should be molested or vexed with any process in the king's rights; and yet you know well, that upon the capias pro fine the defendant shall be


in execution as well for the party as for the king. When this mandate by privy seal came, the judges were in doubt what to do; and Crompton, the prothonotary, stept forth and said, that heretofore the like writ had come in the time of Fortescue, chief justice, who had disobeyed it. The judges, in the absence of Markham, then chief justice, began a little to bristle, and said, that it was not honourable for the court to waver, and to do one thing today and another thing tomorrow, and therefore they would do nothing till my lord Markham was present, who was judge in Fortescue's time, and he would sit with them the next term, and by the grace of God they would do according to their place and conscience. In Trinity term following, after this storm, Markham quietly, sine strepitu, granted the supersedeas, according to the king's command, and there is an end.

Now for the third point, it is but a note how wary the law is, after it hath taken notice of the king's title, to proceed; and therefore there must be a duplication of the procedendo; first, in loquelâ; then, ad judicium.

For although in the removing of the suit in the chancery there be no matter at all shewed for the king, yet the law giveth it not over, but is content there be a procedendo granted, with a restraint nevertheless that the court shall proceed as far as judgment, and no farther; and still lieth in wait to see what will come of it: and if upon issue or demurrer it finds any life in the case more than appeared in the first, the king may forbear the granting a procedendo ad judicium; nay in the meantime, if the defendant plead in chief, in maintenance of the king's title, the king's counsel shall be assigned to him for his better strength.

As to the last branch, that is, extraordinary mandates legal, in suits between party and party, you may see two notable cases to one and the same intent; the one of 1 E. 3. title1 Crown, pl. 125. the other 7 H. 6. fo. 31. where the king gives a direction to the judges what they should do, and prejudges their judgment: for the question being touching the custom of London of waging battle (for which citizens are not so fit); which custom, as all other customs, is subject to the judgment of the court whether it be lawful or no; the king leaveth it not to the court, but by his writ commands the judges to allow

1 Fitzh. Coron. pl. 125. gives the reference to 20 Ed. 3. Pasch., and, as abridged it does not bear on Bacon's point.

this custom, and so upon the matter tells them what they shall judge.

But of all the records that I have seen, that of 3 E. 1. Hil. Rot. 52. is most memorable, and worthy to be a kind of phylactery about the garments of all the judges. There was an assise of darrein presentment brought in the court of Chester by the prior of Kirkennett against Alice de Bello Campo, guardian of the body and land of Hamond de Macy, and it was of the church of Bonden. The king directed his writ to Reynold Gray, then justice of Chester, reciting, that whereas the said assise did depend before him, that the king did hold it fit to send down to the said justice there, from hence, à latere regis (for so are the words of the record), some discreet and circumspect person that might assist him in the taking of the assise; commanding him to surcease until three weeks, to be accounted from Midsummer then last past, by which time the king might send him such a person as he might think fit. Nevertheless the justice, in contempt of the king's commandment, took the assise before the term prefixed by the king's writ. And as it should seem by the record, this Gray was a kind of popular justice, and was incited and blown up with the speeches of the people about him, who murmured, and said, except he would go on according to the law, they would serve nor appear no more at any court; and so, with great triumph, he took the assise. Upon this, the record of assise by venire facias came into this high court of king's bench; and now I will read the words of the record itself, which I hold so memorable, that you may see what your predecessors did.

Et quia prædictus justitiarius non habet aliquam jurisdictionem vel potestatem cognoscendi in aliquâ loquelâ vel capiendi aliquam assisam nisi per prædictum dominum regem et ad ipsius voluntatem, et compertum est per recordum prædictum coram justitiariis domini regis, quòd non obstante mandato domini regis quòd ad captionem præfatæ assisæ non procedat usque ad dies Sancti Johannis Baptista prox. præterit in tres septimanas tamen ad captionem ejusdem assisæ processit, videtur curiæ quòd idem justitiarius in capiendâ assisâ fecit quod de jure non potuit, maximè cùm non fuit, nec esse potuit justitiarius ad placitum illud, contra prædictum mandatum Domini Regis, ante prædictam diem; et ideo consideratum est quòd captio præfatæ assise non

præjudicet quoad potuit, et sit in statu ac si prædicta assisa non fuisset.

I will conclude with an higher kind of assistance than the justice of Chester by some person from Westminster, and that was an assistance of the justices of this court by the chancellor and treasurer of England, and that at their own request. The record is this, and it is 31 E. 1. Rot. 46, 47. Henry Newbery levied a fine to Queen Elinor of certain lands in the counties of Somerset and Dorset; the steward and bailiff of the Queen entered, and encroached upon a great deal of other lands that passed not by the fine. Newbery sat quiet as long as Queen Elinor lived; but as soon as she was dead, he questioned the bailiff in this court, and made petition to the King for restitution. The judges discerned somewhat (as it seems) that the party had right; but yet, taking occasion by the insufficiency of some inquisitions in the form of taking them, they thought good to cease, and conclude thus: "The justices dare not presume to proceed to their award without a special commis"sion of the King, which might be to them a warrant of their "award, which nevertheless they would not should be turned "to example in other cases." Thereupon comes a privy seal to Sir William Hambleton chancellor, and the Bishop of Chester treasurer, commanding them to handle the business, and to assist the judges; and according to their opinion the court gave the award. Now I proceed to my third part, which is, the matter of this writ, which is, the king's loss, for that is the material cause of cause. this writ.


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Now for the king's loss, it may be in present, it may be in future; it may be direct, it may be indirect; and by consequence' it may be more, it may be less free; wherein I will shew you that which is worthy the observing; which is, how sharp-sighted the law of England is on the king's behalf to preserve his right from loss: for as it is the quality of a sharp eye to see small things, and things afar off, so you shall find that there is no loss to the king so little, or so remote, but that the law fetcheth it in by this writ; nay, it goeth farther than the natural eye; for the natural eye never sees but in a straight line, but the eye of the law will see the king's loss in a crooked line, be it never so oblique or collateral.

I incline to put the stop here instead of after "indirect; " but I do not understand what is meant by "free." Qu. "sure ? "

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3rdly. Of the


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