power to deal likewise in civil causes. It is called the dispenser of the King's conscience, following always the intention of law and justice; not altering the law, not making that black which other Courts made white, nor e converso: But in this it exceeds the other Courts, mixing mercy with justice, where other Courts proceed only according to the strict rules of law and where the rigour of the law in many cases will undo a subject, there the Chancery tempers the law with equity, and so mixeth mercy with justice as it preserves men from destruction. : "And thus (as before I told you) is the King's throne established by mercy and justice. "The Chancery is undependent of any other Court, and is only under the King: There it is written Teste meipso: from that Court there is no appeal. And as I am bound in my conscience to maintain every Court's jurisdiction, so especially this, and not suffer it to sustain wrong; yet so to maintain it as to keep it within the own limits, and free from corruption. My Chancellor that now is, I found him Keeper of the Seal, the same place in substance, although I gave him the style of Chancellor, and God hath kept him in it till now: and I pray God he may hold it long, and so I hope he will. He will bear me witness I never gave him other warrant than to go on in his Court according to precedents warranted by law in the time of the best governing Kings, and most learned Chancellors. These were the limits I gave unto him. Beyond the same limits he hath promised me he will never go. "And as he hath promised me to take no other jurisdiction to himself, so is it my promise ever to maintain this jurisdiction in that Court. Therefore I speak this to vindicate that Court from misconceipt and contempt. 'It is the duty of Judges to punish those that seek to deprave the proceedings of any the King's Courts, and not to encourage them anyway : And I must confess I thought it an odious and inept speech, and it grieved me very much, that it should be said in Westminster Hall that a Pramunire lay against the Court of the Chancery and officers there: How can the King grant a Præmunire against himself? "It was a foolish, inept, and presumptuous attempt, and fitter for the time of some unworthy King. Understand me aright: I mean not the Chancery should exceed his limit; but on the other part the King only is to correct it, and none else: And therefore I was greatly abused in that attempt. For if any was wronged there, the complaint should have come to me. None of you but will confess you have a King of reasonable understanding and willing to reform; why then should you spare to complain to me, that being the highway, and not go the other way, and backway, in contempt of our authority? "And therefore sitting here in a seat of judgment, I declare and command that no man hereafter presume to sue a Præmunire against the Chancery, which I may the more easily do, because no Præmunire can be sued but at my suit: and I may justly bar myself at mine own pleasure." "What greater misery can there be to the law than contempt of the law? and what readier way to contempt than when questions come, what shall be determined in this Court and what in that? Whereupon two evils do arise. The one, that men come not now to Courts of Justice to hear matters of right pleaded, and decrees given accordingly, but only out of a curiosity to hear questions of the jurisdiction of Courts disputed, and to see the event, what Court is likely to prevail above the other. And the other is that the pleas are turned from Court to Court in an endless circular motion, as upon Ixion's wheel: And this was the reason why I found just fault with that multitude of Prohibitions: For when a poor minister had with long labour and great expense of charge and time gotten a sentence for his tithes, then comes a Prohibition and turns him round from Court to Court, . . . and this makes the fruit of suits like Tantalus' fruit, still near the suitor's lips, but can never come to taste it. And this indeed is a great delay of justice and makes causes endless. Therefore the only way to avoid this, is for you to keep your own bounds, and nourish not the people in contempt of other Courts, but teach them reverence to Courts in your public speeches, both in your benches and in your circuits; so shall you bring them to a reverence both of God and the King.” The justice of these practical injunctions-and there are many more equally good, though not bearing so directly upon the present question-will hardly be disputed. If they are less wanted now than they were then, it is only because they are now more generally understood and accepted. And though the doctrine which makes the King answerable to God alone, and the Judges to the King He to God only, they to God and him— must now be condemned as heretical, it is only fair to remember that this was not because the doctrine was unconstitutional then, but because the constitution has been changed since. James did but hold as a living fact with all its logical consequences what the law still maintains as a fiction-that the King can do no wrong: a maxim which has its roots so deep in the constitution, that to this day we have not been able to get rid of it in theory, though by contriving that the King shall not be able to do anything without the concurrence of somebody who can do wrong, we have found a way to escape from its practical consequences. But that solution of the difficulty was not possible for the father of Charles I.; and if in the year 1616 Coke had been asked by whom and by what legal process the King could be called to account for his actions, he would not have been able to answer.2 The point, however, was not material on this occasion. Though 1 Works of James I., p. 556-560. 2 See 'Institutes,' part iv. chap. lxxiv., near the end. James would have thought that he was betraying the post which he was divinely appointed to defend if he had admitted the royal prerogative to be a fit subject of dispute in Court, that was not the question at issue in either of the cases with which he was now dealing. To say that the King's prerogative could never be lawfully called in question was one thing: to say that questions in which the King's prerogative was concerned were not to be determined without hearing what the King had to say (and that was all he contended for in the Commendam case) was another. Nor was the right of the Chancery to give relief after judgment at common law (which was all that he maintained in the Præmunire case) dependent upon the doctrine that the Chancery was accountable to the King alone. If the right existed at all, it was still a right, whether the King were judge or the King's Bench. Of these two questions, the first had been settled for the time by the late proceeding in Council, the decision of which was by the present declaration reinforced and proclaimed. But the second had still to be disposed of. The King's personal condemnation of the action as presumptuous, with a peremptory prohibition of its renewal, would not have been enough to satisfy the public that Coke had been at fault in law. It was necessary to put forth some formal manifesto with the reasons. Bacon, as we have seen, had proposed that this should be done by an act of Council, as in the Commendam case. But for some reason of which we are not informed-perhaps because in this case the advice of the Council was not wanted-it was decided to do it in the form of a decree. And on the 18th of July, 1616, the following decree, which is evidently the work of Bacon, was issued under the Privy Seal. Jacobi THE KING'S DECREE TOUCHING THE GRANTING OF PRÆMUNIRES Anno 14 JAMES by the grace of God, etc. WHEREAS our right trusty and well-beloved Sir Francis Bacon, Knt., our Counsellor and Attorney-General, received a letter from our Chancellor of England, dated the 19th of March, Anno Domini 1615, written by our express commandment, directing and requiring him and the rest of our learned counsel to peruse 1 Lansd. MSS. 174, f. 119. Copy in Chancery form, with corrections in some clerk's hand, showing that it has been examined. Docketed by Sir Julius Cæsar, "The King's decree touching the granting of Præmunires against any for sueing in Chancery after a judgment, at Common Law, and precedents to justify the proceedings of the Chancery, and that Præmunire lieth not in that Court: in an. 1615." 2 c VOL. V. Regis : sexta pars Paten. numero 25. such precedents as should be produced unto them, of the time of K. Henry 7 and since, of complaints made in the Chancery, there to be relieved according to equity and conscience after judgments in the Courts of the Common Law, in cases where the Judges of the Common Law could not relieve them, and thereupon to certify us of the truth of that they should find and of their opinions concerning the same; which letter followeth in these words: :-- Mr. Attorney. His M. being informed that there be many precedents in the Court of Chancery in the time of K. Henry 7 and continually since, that such as complained there to be relieved according to equity and conscience after judgments in the Courts of the Common Law, in cases where the Judges of the law could not relieve them (being bound by their oath to observe the strict rules of the law), is willing to understand whether there be such precedents as he is informed of; and therefore hath commanded me to let you know that his will and pleasure is that you call to assist you his Majesty's Serjeants and Solicitor, and to peruse such precedents of this kind as shall be produced unto you, and thereupon to certify his Majesty of the truth of that you shall find, and of your opinions concerning the same. And for your better direction therein I have sent you here-inclosed a note in writing delivered unto me, mentioning some such precedents in K. Henry 7 time and since; and I am told that there be the like in former times. His Majesty expecteth your proceeding in this with as much speed as conveniently you may, and so rest Your assured friend, T. ELLESMERE, Canc. At York House 19 Martii, 1615. AND WHEREAS our Attorney-General and the rest of our Learned Counsel did thereupon return unto us their certificate subscribed with all their hands according to our commandment and direction given them by the said letter, which certificate followeth in these words : According to your M. commandment we have advisedly con sidered of the note delivered unto us of precedents of complaining and proceeding in Chancery after judgments at Common Law, and have also seen and perused the originals out of which the same note was abstracted: upon all which we find and observe the points following: 1. We find that the same note is fully verified and maintained by the originals. 2. We find that there hath been a strong current of practice of proceeding in Chancery after judgment, and many times after execution, continued from the beginning of King Henry the seventh's reign unto the time of the Lord Chancellor that now is, both in the reigns seriatim of the several Kings, and in the times of the several Chancellors, whereof divers were great learned men in the law, it being in cases where there is no remedy for the subject by the strict course of the Common Law unto which the Judges are sworn. 3. We find that this proceeding in Chancery hath been after judgment in actions of several natures, as well real as personal. 4. We find it hath been after judgments in your Majesty's several courts, the King's Bench, Common Pleas, Justices in Eyre, etc. 5. We find it hath been after judgments obtained upon verdict, demurrers, and where writs of error have been brought. 6. We find in many of the cases that the judgments are expressly mentioned in the Bills in the Chancery themselves to have been given and relief prayed thereupon, sometimes for stay of execution, sometimes after execution; of which kind we find a great number in K. Henry 7th's time. 7. We find the matters in equity laid in such Bills in most of the cases to have been matter precedent before the judgments, and not matter of agreement after. 8. We find in the said cases not only the Bill preferred, but motions, orders, injunctions, and decrees thereupon for discharging and releasing of the judgments, or avoiding the possession thereupon obtained, and sometimes for the mean profits. and the release of the costs, etc. 9. We find in some of the cases that this very point (that judgment hath been given) hath been stood upon by the defendants and alleged by them by way of demurrer, and overruled. 10. We find that the Judges themselves in their own Courts |