Page images
PDF
EPUB

express commandment) without fear of any man's face to proceed or declare against any the greatest peer or subject of the kingdom; and not only any subject in particular, but any body of subjects or persons-were they Judges, or were they an Upper or Lower House of Parliament-in case that they exceed the limits of their authority, or take anything from his Majesty's royal power or Prerogative and so concluded, that this challenge (and that in his Majesty's presence) was a wrong to their places, for which he and his fellows did appeal to his Majesty for reparation."

On this the King intervened. It was the duty of the Counsel, he said, to do what they had done, and he would maintain them in it. Coke replied that he would not dispute with his Majesty; and the King, not without humour, remarked that the Judges would not dispute with him, and would not allow the Learned Counsel to dispute with them, so that, "whether they did well or ill it must not be disputed." After this, the Lord Chancellor, concluding the statements of the Learned Counsel, delivered his opinion that the delay required by his Majesty would not have involved any breach of a Judge's oath. And now the Judges were separately called on to answer this question: "Whether, if at any time in a case depending before the Judges, which his Majesty conceived to concern him either in power or profit, and therefore required to consult with them and that they should stay proceedings in the meantime, they ought not to stay accordingly?" It is probable that, as was the custom in taking the opinions of the Council, the junior or lowest in standing of the Judges was asked his opinion first. All assented, except Coke, who replied that "When that case should be, he would do that should be fit for a Judge to do." Taking courage from this, "the Chief Justice of the Common Pleas (who had previously assented with the rest) now added that he would ever trust the justness of his Majesty's commandment."

Nothing could have been nobler, wiser, and more temperate than Coke's answer. It was noble because the speaker, to his own apparent ruin, and unsupported by his own brethren on the Bench, upheld justice to the best of his power against the straining of an ancient practice which was likely to become oppressive it was wise and temperate because he did not at once cast off and renounce old customs however obsolete and

possibly injurious. There might come a case before him where the King's policy and Government were definitely and seriously interested and where no private injustice could be contemplated; such a case might be honourably deferred at the King's command. Another case might come before him, where some manifest injustice or some tedious and ruinous delay of justice was intended by a King or a King's favourite; such a case he would not delay: "he would do that should be fit for a Judge to do."

How vague and fluctuating an interpretation might be set upon the King's right to consult the Judges in cases concerning his "power or profit" is shown by the passage in Bacon's Essay on Judicature: in which, after insisting that Kings and States must consult Judges in cases that "trench to point of Estate," he proceeds to define these last words as follows:

"I call matter of Estate, not only the parts of Sovereignty, but whatsoever introduceth any great alteration, or dangerous precedent, or concerneth manifestly any great portion of people." 1

A King's Attorney must be very dull who could not show that almost any pending case "manifestly," though indirectly, "concerned a great portion of people;" and thus the King could claim an almost general right of interference. In any such case the Counsel were to be forbidden (if Bacon had his will) to argue against the King's Prerogative; the Judges were to be compelled to take private counsel with the King or the King's Lawyers; they might be even separately summoned to simultaneous interviews where they would have to hear all that could be said on the King's side, without hearing anything that could be said on the other side: and finally they might be asked or coerced by silent pressure to say what opinion they intended to give, before they had heard more than one side of the case. In the present instance, for example, "Mr. Justice Doddridge said that he would conclude for the King that the Church was void and in his Majesty's gift." Thus the scene closes in just such a triumph for the King as Bacon had anticipated :

1 Essay lvi. 122-133.

"The Judges having thus far submitted and declared themselves, his Majesty admonished them to keep the bounds and limits of their several courts, and not to suffer his Prerogative to be wounded by rash and unadvised pleading before them, or by new inventions of law for as he well knew that the true and ancient common law is the most favourable, for kings, of any law in the world,' so he advised them to apply themselves to the study and practice of that ancient and best law. . . and therefore gave them leave to proceed in their argument."

On 26 June Coke was called before the Council to answer certain charges preferred against him by the Solicitor-General, and, in particular, to explain his conduct in the matter of the Præmunire. Here he stated that, when the Judges received his Majesty's command that no Bill of that nature be hereafter received, he and his brethren "caused the same to be entered as an order in the same Court; which shall be observed;" so that whatever his opinion may have been as to the justice or injustice of the settlement, he at least acquiesced in the King's authority to settle the question. But the King determined not only to humiliate him but also to use him as an instrument, if possible, for purifying the law from popular innovations: and the greatest Lawyer in England was to be compelled to adapt his Law Reports to the superior judgment of James. His Majesty therefore directed the Council (30 June, 1616) to call Coke again before them and to inform him that it was the King's pleasure he should forbear for the present to sit at Council or on the Bench, and that he must employ this enforced leisure in correcting in his Reports "many exorbitant and extravagant opinions set down and published for positive and good law; . . . and having corrected what in his discretion he found meet in these Reports, his Majesty's pleasure was that he should bring the same privately to himself that he might consider thereof, as in his princely judgment should be found expedient.”

1 This was by no means an unmixed exaggeration. Sir Henry Neville, in the King's presence (Spedding, iv. 231) complained that "in matter of justice they (the King's subjects) could not have an indifferent proceeding; and see note on

p. 209), where Professor Gardiner is quoted as saying that the King "might have every gentleman in England at his mercy" by entangling him " in the meshes of the law."

§ 34 BACON BECOMES LORD KEEPER

Villiers had been for some time rapidly rising in favour. "This is now the man," writes a friend to Carleton (27 August, 1616)," by whom all things do and must pass; and he far exceeds the former (Somerset) in favour and affection." His affable and winning nature contrasted agreeably at this time with the moroseness of the former Favourite; and he appears to have looked up to Bacon as a respected counsellor. Bacon, on the other side, was not alone in thinking much better of Villiers than he deserved, and in forming about him anticipations that were not destined to be realized. If he erred here, he erred with Archbishop Abbot and the Privy Council, who had introduced Villiers to the notice of the King in the hope of supplanting Somerset. Although therefore Bacon had a customary blindness to the defects of those in power who could be useful to him, it was probably not all flattery when he praised the rising Favourite (12 August, 1616) to the King as "a safe nature, a capable mind, an honest will, generous and noble affections, and a courage well lodged; and one that I know loveth your Majesty unfeignedly, and admireth you as much as it is in a man to admire his Sovereign upon earth." The King of course showed this letter to Villiers, and declared that the latter was "beholding" to Bacon for such kind expressions. Bacon will not allow that there can be any obligation for merely speaking the truth (20 August): "It was graciously and kindly done also of his Majesty towards me to tell you that you were beholding to me; but it must be then for thinking of you as I do; for otherwise, for speaking as I think, it is the part of an honest man." The reader will not fail to note the fatherly tone-a tone not long to be preserved-in which he addresses and advises the young Favourite. It is in a letter forwarding (12 August) to the freshly created Viscount Villiers his patent of creation:

66 And now, because I am in the country, I will send you some of my country fruits; which with me are good meditations; which, when I am in the city, are choked with business.

"After that the King shall have watered your new dignities with his bounty of the lands which he intends you, and that some other things concerning your means which are now in intention shall be settled upon you, I do not see but you may think your private fortunes established; and therefore it is now time that you should refer your actions chiefly to the good of your Sovereign and your country. It is the life of an ox or beast always to eat, and never to exercise; but men are born (and specially Christian men) not to cram in their fortunes but to exercise their virtues; and yet the other hath been the unworthy and (thanks be to God) sometimes the unlucky humour of great persons in our times. Neither will your further fortune be the further off for assure yourself that fortune is of a woman's nature, that will sooner follow you by slighting than by too much wooing."

He then encouraged him to a deed "which was never done since I was born, and which, not done, hath bred almost a wilderness and solitude in the King's service," i.e. to promote merit for in the time of the Cecils able men were by design and of purpose suppressed;" and though the condition of things is bettered, yet still promotion depends too much on "money and turn-serving and cunning canvasses and importunity."

"Above all, depend wholly (next to God) upon the King, and be ruled, as hitherto you have been, by his instructions; for that is best for yourself. For the King's care and thoughts concerning you are according to the thoughts of a great king; whereas your thoughts concerning yourself are, and ought to be, according to the thoughts of a modest man. But let me not weary you. The sum is, that you think goodness the best part of greatness, and that you remember whence your rising comes, and make return accordingly. God ever keep you.”

Thus Bacon expresses to Villiers all the good thoughts he had about the King, and to the King all the good thoughts he had about Villiers; probably not forgetting that, being together, each would thus hear Bacon's good opinion of him from the other-a much more delicate compliment than flattering a person to his face. Villiers at all events took Bacon's counsel in such good part that he asked for more: and Bacon responded to this request in a long Letter of Advice of which two different versions are extant.

In this paper, after some excellent advice on the division and arrangement of business, coming to Church-matters, Bacon

« PreviousContinue »