I am of opinion that that same cunning maxim of Separa et impera, which sometimes holdeth in persons, can well take place in jurisdictions, but because some good occasion by this excess may be taken to settle that which would have been more dangerous if it had gone on by little and little. God ever preserve your Majesty. Your Majesty's most humble subject and most bounden servant, 15 Feb. 1615. FR. BACON. A LETTER TO SIR G. VILLIERS TOUCHING THE DIFFERENCE BETWEEN THE COURT OF CHANCERY AND KING'S BENCH. 19 FEB. 1615.1 Sir, I received this morning from you two letters by the same bearer, the one written before, the other after his Majesty had received my last. In this difference between the two courts of Chancery and King's Bench (for so I had rather take it for this time, than between the persons of my Lord Chancellor and my Lord Chief Justice) I marvel not if rumour get way of true relation. For I know fame hath swift wings, specially that which hath black feathers. But within these two days (for sooner I cannot be ready) I will write unto his Majesty both the narrative truly, and my opinion sincerely; taking much comfort that I serve such a king as hath God's property in discerning truly of men's hearts. I purpose to speak with my Lord Chancellor this day and so to exhibit that cordial of his Majesty's grace, as I hope this other accident will rather rouse and raise his spirits, than deject him or incline him to a relapse. Mean while I commend the wit of a mean man that said this other day, "Well (saith he) the next term you shall have an old man come with a besom of worm"wood in his hand, that will sweep away all this." Lord Chancellor's fashion, carry a posy of wormwood. specially towards the For it is my summer, to haste to re 1 Gibson Papers, vol. viii. f. 27; fair copy. The heading from docket in Bacon's hand. turn your messenger with it. God keep you; and long and happily may you serve his Majesty. 19 Feb. 1615. Your true and affectionate servant, FR. BACON. Sir, I humbly thank you for your inward letter; I have burned it as you commanded: but the flame it hath kindled in me will never be extinguished.1 LETTER TO THE KING'S MOST EXCELLENT MAJESTY, CONCERNING THE PRÆMUNIRE IN THE KING'S BENCH, AGAINST THE CHANCERY.2 21 FEBRUARY, 1615. It may please your most excellent Majesty, I was yesterday in the afternoon with my Lord Chancellor, (according to your commandment which I received by the Master of the Horse,) and find the old man well comforted both towards God and towards the world. And that same middle comfort, which is divine and human, proceeding from your Majesty, being God's lieutenant on earth, I am persuaded hath been a great cause that such a sickness hath been portable to such an age. I did not fail in my conjecture that this business of the Chancery hath stirred him. He sheweth to despise it, but he is full of it, and almost like a young duellist that findeth himself behind-hand. I will now, as your Majesty requireth, give you a true relation of that which hath passed: neither will I decline your royal commandment for delivering my opinion also, though it be a tender subject to write on. But I that account my being but as an accident to my service, will neglect no duty upon self-safety. First, it is necessary I let your Majesty know the ground of the difference between the two courts, that your Majesty may the better understand the narrative. There was a statute made 27 Edw. III. cap. 1, which (no doubt) in the principal intention thereof was ordained against 1 "This little piece above, being as a postscript, was written on a small piece of paper by itself and enclosed herein." (Note in MS.) Above it is written in Bacon's hand "Inclosed." Gibson Papers, vol. viii. f. 28. Copy with corrections in Bacon's hand. 4o H. 4. those that sued to Rome, wherein there are words somewhat general against any that questioneth or impeacheth any judgment given in the king's courts, or in any other court. Upon these doubtful words, (other courts,) the controversy groweth. For the sounder interpretation taketh them to be meant of those courts, which though locally they were not held at Rome or where the Pope's chair was, but here within the realm, yet in their jurisdiction had their dependency upon the court of Rome; as were the court of the legate here, and the courts of the archbishops and bishops, which were then but subordinate judgmentseats to that high tribunal of Rome. And for this construction the opposition of the words (if they be well observed) between the king's courts and other courts maketh very much; for it importeth as if those other courts were not the king's courts. Also the main scope of the statute fortifieth the same; and lastly the practice of many ages. The other interpretation (which cleaveth to the letter) expoundeth the king's courts to be the courts of law only, and other courts to be courts of equity, as the Chancery, Exchequer-chamber, Dutchy, etc., though this also flieth in-. deed from the letter, for that all these are the king's courts. There is also another statute which is but a simple prohibicap. 23. tion, and not with a penalty of præmunire (as the other is), That after judgments given in the king's courts, the parties shall be in peace, except the judgments be undone by Error or Attaint (which is a legal form of reversal). And of this also I hold the sounder interpretation to be, to settle possessions against disturbances, and not to take away remedy in equity, where those judgments are obtained ex rigore juris, and against good conscience. But upon these two statutes there hath been a late conceit in some, that if a judgment pass at the common law against any, that he may not after sue for relief in Chancery; and if he do, both he and his counsel and his solicitors, yea and the judge in equity himself, are within the danger of those statutes. Here your Majesty hath the true state of the question, which I was necessarily to open to you first; because your Majesty calleth for this relation not as news, but as business. Now to the historical part. It is the course of the King's Bench, that they give in charge to a grand jury offences of all natures to be presented, within Middlesex, where the said court is; and the manner is, to enumerate them as it were in articles. This was done by Justice Crook, the Wednesday before the term ended; and that article (If any man, after a judgment given, had drawn the said judgment to a new examination in any other court) was by him specially given in charge, which had not used to be given in charge before It is true it was not solemnly dwelt upon, but as it were thrown in amongst the rest. The last day of the term (and that which all men condemn, the supposed last day of my Lord Chancellor's life) there were two indictments preferred of præmunire, for suing in chancery after judgment at common law; the one by Rich. Glanville, the other by William Allen: the former against Courtnay, the party in chancery, Gibb the counsellor, and Deurst the clerk; the latter against alderman Bowles and Humfrey Smith, parties in chancery, serjeant More the counsellor, Elias Wood solicitor in the cause, and Sir John Tindal, master of the chancery, and an assessor to my Lord Chancellor. For the cases themselves, it were too long to trouble your Majesty with them, but this I will say; if they were set on that preferred them, they were the worst mark-men that ever were that set them on; for there could not have been chosen two such causes to the honour and advantage of the Chancery, for the justness of the decrees and the foulness and scandal both of fact and person in those that impeach the decrees. The grand jury, consisting as it seemeth of very substantial and intelligent persons, would not find the bills, notwithstanding they were much clamoured by the parties, and twice sent back by the court; and in conclusion resolutely seventeen of nineteen found an Ignoramus; wherein for that time I think Ignoramus was wiser than those that know too much. Your Majesty will pardon me, if I be sparing in delivering to you some other circumstances of aggravation and of concurrences of some like matters the same day, as if it had been some fatal constellation: They be not things so sufficiently tried as I dare put them into your ear. 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 Lord Chancellor. 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 him; 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. 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 matters of repair 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 it 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. Secondly, if it be true (as is reported) that any of the puisne judges did stir this business, or that they did openly revile and menace the jury for doing their conscience (as they did honestly and truly), I think that judge is worthy to leese his place. And to be plain with your Majesty, I do not think there is anything a greater polychreston, ad multa utile to your affairs, than upon a just and fit occasion to make some example against the presumption of a judge in causes that concern your Majesty, whereby the |
