6.

The first of these businesses that came on was the great question of the Rege Inconsulto; the hearing of which had been adjourned, as we saw, the last term, in consideration of Coke's being busy with the murder case. On the 25th of January the argument was resumed, and Bacon made a great speech (a report of which will be found in its place among the Professional Works) in defence of the writ: with what effect, we learn from the next letter; of which we have two copies :-one preserved in his own collection (which I take to be a transcript of as much of the first draft as was finished); the other, the letter itself which was sent to the King and is now in the Advocates' Library. As an illustration of the relation between Bacon's first drafts and fair copies, I give them both.

A LETTER FROM THE KING'S ATTORNEY TO THE KING TOUCHING THE REGE INCONSULTO: NOT PERFECT. 27 JANU. 1615.1

It may please your most excellent Majesty,

It pleased your Majesty to commit to my care and trust, for Westminster Hall matters, three particulars: that of the Rege inconsulto, which concerneth Mr. Murray; that of the Commendams, which concerneth the Bishop of Lincoln; and that of Habeas Corpora, which concerneth Chancery. These causes, though I give them private additions, yet they are merely, or at least chiefly, yours; and the die runneth upon your royal prerogative diminution or entire conservation. Of these it is my duty to give your Majesty a short account.

For that of the Rege inconsulto, I argued the same in the King's Bench on Thursday last, being the 25th of this present. It was argued first on the other part by Mr. George Crooke, the Judge's brother, an able book-man, and one that was manned and armed 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 somewhat of the extemporal. Of myself I will say nothing, but my argument was wholly upon book law and records, and that my voice served me well for two hours and a half; and yet as they tell me I lost not one auditor that was present in the beginning, but staid till

1 Add. MSS. 5503. f. 81. b. The MS. has "1618"-obviously a mistake.

the latter end. It pleased my Lord Coke to say it was a famous argument. It pleased him also to ask me a politic and tempting question. For taking occasion by a notable precedent I had cited, where all the Judges of England had upon the like writ assembled themselves in the Exchequer Chamber, and there conferred privately for reverence sake, lest they should seem to dispute the King's commandment, he asked me whether I would have all the Judges called to this case. I was not caught; but knowing well that the Judges of the Common Pleas were most of all interessed, in respect of the Pronotaries, I answered civilly that I would advise of it, but that I did not distrust the Court, and thought the case so clear as it needed no general assembly of the Judges.

Here the copy in Bacon's collection ends. I fancy that, wishing to make some alteration, he began the letter again, wrote the whole fair, and despatched it, keeping only the discarded beginning. For he had not yet made arrangements for having his letters regularly copied before they were sent off. It was not long before he found it necessary to do so: but at this time he seems to have generally contented himself with keeping the rough draft by way of memorandum. Making his fair copy always with his own hand, he naturally introduced alterations and additions as he went on; the character of which we have in this case the means of observing; for here is the letter as he sent it to the King.

TO THE KING'S MOST EXCELLENT MAJESTY.1

It may please your most excellent Majesty,

It pleased your Majesty to commit to my care and trust for Westminster-hall matters three particulars; that of the Rege inconsulto, which concerneth Mr. Murray; that of the Commendams, which concerneth the Bishop of Lincoln; and that of the Habeas corpus, which concerneth the Chancery. These causes, although I give them private additions, yet they are merely, or at least chiefly yours; and the die runneth upon your royal prerogative diminution or entire conservation. Of these it is my duty to give your Majesty a short account.

For that of the Rege inconsulto, I argued the same in the

1 Balfour MSS.

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 later 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 Cook 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 of 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 interessed in respect of the prothonotaries, I answered civilly, that I would advise of it, but that I did not distrust the court; and besides, I thought the case so clear, as it needed not.

Sire, I do partly 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 me, of themselves, took a fortnightsday 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 now is done,) he should forbear furder proceeding till he had spoken with your Majesty.

It concerneth your Majesty threefold: First, in this particular

of Murray; Next, in the 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 regal rights.

For the case of the Commendams, a matter likewise 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 Serjeant 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 next term.

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 those 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,

27 of January 1615.

FR. BACON.

The next letter brings us back to the negotiation with the New Company; concerning which see above, Chapter V. § 5.

A LETTER TO THE KING, ADVISING HOW TO BREAK OFF WITH THE NEW COMPANY.1

It may please your most excellent Majesty,

I spake yesternight long with my Lord Coke; and for the rege inconsulto I conceive by him it will be an amplius deliberan

1 Gibson Papers, vol. viii. f. 23. Fair copy.

dum 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 thing 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 perceiving the same, I think he 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 wines1 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 profits; 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 your 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 company break, it must either be put upon the patent, or upon the orders made by themselves. For the patent, I satisfied the whole 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; which my Lord Coke, with much respect to me, acknowledged, but disliked the old patent itself, and disclaimed his being present at the table when the additions were allowed. But in my opinion (howsoever my Lord Coke, to magnify his science of 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 1 See Vol. IV. p. 336.