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therefore Overbury must he held in the Tower. And
as my lord of Somerset got him into the trap, so he
kept him in, and abused him with continual hopes of
liberty ; and diverted all the true and effectual means
of his liberty, and made light of his sickness and ex-
tremities.

Sixthly, That not only the plot of getting Overbury
jnto the Tower, and the devices to hold him and keep
him there; but the strange manner of his close keeping,
being in but for a contempt, was by the device and
means of rny lord of Somerset, who denied his father
to see him, denied his servants that offered to be shut
up close prisoners with him; and in effect handled it
so, that he was close prisoner to all his friends, and
open and exposed to all his enemies.

Seventhly, That the advertisement which my lady
received from time to time from the lieutenant or
Weston 9 touching Overbury's state of body or health,
were ever sent up to the court, though it were in
progress, and that from my lady : such a thirst and
listening this lord had to hear that he was dispatched.



Charge against Robert Earl of Somerset. 4S5

'Lastlv, There was a continual negotiation to set
Overbury's head on work, that he should make some
recognition to clear the honour of the lady ; and that
he should become* a good instrument towards her and
her friends : all which was but entertainment ; for your
lordships shall plainly see divers of my lord of North-
ampton's letters, whose hand was deep in this busi-
ness, written, T must say it, in dark words and clauses;
that there was one thing pretended and another in-
tended ; that there was a real charge, and there was
somewhat not real; a main drift, and a dissimulation.
Nay farther, there be some passages which the peers
in their wisdom will discern to point directly at the
impoisonment.

After this inducement followed the evidence itself.



[ 486 ]

THE

EFFECT

OF THAT WHICH WAS SPOKEN

BY THE

LORD KEEPER OF THE GREAT SEAL OF
ENGLAND,

AT THE TAKING OF HIS PLACE IN CHANCERY,

In Performance of the Charge his MAJESTY had given him when he
received the Seal, May 7, 1617.



JJEFORE I enter into the business of the court,! shall
take advantage of so many honourable witnesses to pub-
lish and make known summarily, what charge the King's
most excellent Majesty gave me when I received the
seal, and what orders and resolutions I myself have
taken in conformity to that charge ; that the King may
have the honour of direction, and I the part of obe-
dience ' y whereby your lordships, and the rest of the
presence, shall see the whole time of my sitting in the
chancery, which may be longer or shorter, as it shall
please God and the King, contracted into one hour.
And this I do for three causes.

First, to give account to the King of his command-
ment.

Secondly, that it may be a guard and custody to
myself, and my own doings, that I do not swerve or
recede from any thing that I have professed in so noble
company.

And thirdly, that all men that have to do with the
chancery or the seal, may know what they shall expect,
and both set their hearts and my ears at rest; not mov-
ing me in any thing against these rules ; knowing that
my answer is now turned from a nolumiis into a non
possumus. It is no more, I will not, but, I cannot,
after this declaration.

And this I do also under three cautions.



Speech on taking his Place in Chancery. 487

This first is, that there be some things of a more
secret and council-like nature, more fit to be acted
than published. But those things which I shall speak
of to-day are of a more public nature.

The second is, that I will not trouble this presence
with every particular, which would be too long ; but
select those things which are of greatest efficacy, and
conduce most ad suminas rerum ; leaving many other
particulars to be set down in a table, according to the
good example of my last predecessor in his begin-



ning.



And lastly, that these imperatives, which I have
made but to myself and my times, be without preju-
dice to the authority of the court, or to wiser men that
may succeed me : and chiefly that they are wholly
submitted unto the great wisdom of my Sovereign,
and the absolutest Prince in judicature that hath been
in the Christian world ; for if any of these things which
I intend to be subordinate to his directions, shall be
thought by his Majesty to be inordinate, J shall be
most ready to reform them. These things are but
tanquam album praloris ; for so did the Roman prae-
tors, which have the greatest affinity with the jurisdic-
tion of the chancellor here, who used to set down at
their entrance, how they would use their jurisdiction.
And this I shall do, my lords, in verbls masculis ; no
flourishing or painted words, but such as are fit to g>
before deeds.

The King's charge, which is my lanthorn, rested
upon four heads.

The first was, that I should contain the jurisdiction
of the court within its true and due limits, without
swelling or excess.

The second, that I should think the putting of the
great seal to letters patents was not a matter of course
to follow after precedent warrants ; but that I should
take it to be the maturity and fulness of the King's
intentions: and therefore of the greatest parts of my
trust, if I saw therein any scruple or cause of Stay,
that I should acquaint him, concluding with a Quod
dubites neftceris.



Speech on taking his Place in Chancery.

The third was, that I should retrench all unnecessary
delays, that the subject might find that he did enjoy
the same remedy against the fainting of the soul and
the consumption of the estate; which was speedy jus-
tice. Bis dat, qui cito dat.

The fourth was, that justice might pass with as easy
charge as might be ; and that those same brambles,
that grow about justice, of needless charge and ex-
pence, and all manner of exactions, might be rooted
out so far as might be.

These commandments, my lords, are righteous, and,
as I may term them, sacred ; and therefore to use a
sacred form, I pray God bless the King for his great
care over the justice of the land, and give me, his
poor servant, grace and power to observe his pre-
cepts.

Now for a beginning towards it, I have set down
and applied particular orders to-day out of these four
general heads.

For the excess or tumour of this court of chancery,
I shall divide it jnto five natures.

The first is, when the court doth embrace and re-
tain causes, both in matter and circumstance merely
determinable and fit for the common law ; for, my
lords, the chancery is ordained to supply the law, and
not to subvert the law. Now to describe unto you or
delineate what those causes are that are fit for the
court, or not fit for the court, were too long a lecture.
But I will tell you what remedy 1 have prepared. I
will keep the keys of the court myself, and will never
refer any demurrer or plea, tending to discharge or
dismiss the court of the cause, to any master of the
chancery, but judge of it myself, or at least the master
of the rolls. Nay farther, I will appoint regularly,
that on the Tuesday of every week, which is the day
of orders, first to hear motions of that nature before
any other, that the subject may have his vale at first
without attending, and that the court do not keep and
accumulate a miscellany and confusion of causes of
all natures.

The second point concerneth the time of the com*



Speech on taking his Place in Chancery. 489

plaint, and the late comers into the chancery ; which
stay till a judgment be passed against them at the
common law, and then complain: wherein your lord-
ships may have heard a great rattle and a noise of
a prtcmunifc, and I cannot tell what. But that ques-
tion the King hath settled according to the ancient
precedents in all times continued. And this I will
say, that the opinion, not to relieve any case after judg-
ment, would be a guilty opinion ; guilty of the ruin,
and naufrage, and perishing of infinite subjects : and
as the King found it well out, why should a man fly
into the chancery before he be hurt ? The whole need
not the physician, but the sick. But, my lords, the
power would be preserved, but the practice would be
moderate. My rule shall be therefore, that in case of
complaints after judgment, except the judgments be
upon nihil dicit, and cases which are but disguises of
judgment, as that they be judgments obtained in con-
tempt of a preceding order in this court, yea, and after
verdicts also, I will have the party complainant enter
into good bond to prove his suggestion : so that if he
will be relieved against a judgment at common law
upon matter of equity,he shall do it tanquam in vinculis,
at his peril.

The third point of excess may be the over-frequent
and facile granting of injunctions for the staying of
the common laws, or the altering of possessions - 9
wherein these shall be my rules.

I will grant no injunction merely upon priority of
suit; that is to say, because this court was first pos-
sessed : a thing that was well reformed in the late lord
chancellor's time, but usual in the chancellor Bromley's
time ; insomuch, as I remember, that Mr. Dalton the
counsellor at law put a pasquil upon the court in na-
ture of a bill; for seeing it was no more but, My
lord, the bill came in on Monday, and the arrest at.
common law was on Tuesday, I pray the injunction
upon priority of suit : he caused his client that had a
loose debtor, to put his bill into the chancery before
the bond due to him was forfeited, to desire an order
that he might have his money at that day, because he



Speech on taking his Place hi Chancery.

would be sure to be before the other. ' I do not mean
to make it a matter of an horse-race who shall be first
at Westminster-hall.

Neither will I grant an injunction upon matter con-
tained in the bill only, be it never so smooth and spe-
cious ; but upon matter confessed in the defendant's
answer, or matter pregnant in writing, or of record ;
or upon contempt of the defendant in not appearing,
or not answering, or trifling with the court by insuf-
ficient answering. For then it may be thought that
the defendant stands out upon purpose to get the start
at the common law, and so to take advantage of his
own contempt ; which may not be suffered.

As for injunctions for possession, I shall maintain
possessions as they were at the time of the bill exhi-
bited ; and for the space of a year at the least before,
except the possession were gotten by force or any
trick.

Neither will I alter possession upon interlocutory
orders, until a decree , except upon matter plainly
confessed in the defendant's answer, joined also with
a plain disability and insolvency in the defendant to
answer the profits.

As for taking of possession away in respect of con-
tempts, I will have all the process of the court spent
first, and a sequestration of the profits before I come
to an injunction.

The fourth point is concerning the communicating
of the authority of the chancellor too far; and making,
upon the matter, too many chancellors, by relying too
much upon the reports of the masters of the chancery
as concludent. 1 know, my lords, the masters of the
chancery are reverend men ; and the great mass of the
business of the court cannot be sped without them ;
and it is a thing the chancellor may soon fall into for
his own ease, to rely too much upon them. But the
course that J will take generally shall be this ; I will
make no binding order upon any report of one of the
masters, without giving a seven-night's day at the
least, to shew cause against the report, which never-
theless I will have done modestly, and with due



Speech on taking Ids Place in Chancery.

reverence towards them : and again, I must utterly
discontinue the making of an hypothetical or conditional
order; that if a master of the chancery do certify thus
and thus, that then it is so ordered without farther
motion ; for that it is a surprise, and giveth no time
for contradiction.

The last point of excess is, if a chancellor shall be
so much of himself, as he shall neglect assistance of
reverend judges in cases of difficulty, especially if
they touch upon law, or calling them, shall do it but
pro forma t ant am, and give no due respect to their
opinions: wherein, my lords, preserving the dignity
and majesty of the court, which I account rather in-
creased than diminished by grave and due assistance,
I shall never be found so sovereign or abundant in
mine own sense, but I shall both desire and make true
use of assistance. Nay, I assure your lordships, if I
should find any main diversity of opinion of my as-
sistants from mine own, though I know well the judi-
cature of the court wholly resteth in myself; yet I
think I should have recourse to the oracle of the
King's own judgment, before I should pronounce.
And so much for the temperate use of the authority
of this court ; for surely the health of a court, as well
as of a body, consisteth in temperance.

For the second commandment of his Majesty, touch-
ing staying of grants at the great seal ; there may be
just cause of stay, either in the matter of the grant,
or in the manner of passing the same. Out of both
which I extract these six principal cases which I will
now make known : all which, nevertheless, I under-
stand to be wholly submitted to his Majesty's will and
pleasure, after by me he shall have been informed; for
if iteration mandatum be come, obedience is better
than sacrifice.

The first case is, where any matter of revenue, or
treasure, or profit, passeth from his Majesty ; my first
duty shall be to examine, whether the grant hath
passed in the due and natural course by the great of-
ficers of the revenue, the lord treasurer and chancellor
of the exchequer, and with their privity; which if I



492 Speech on taking his Place in Chancery.

find it not to be, I must presume it to have passed in
the dark, and by a kind of surreption ; and I will
make stay of it till his Majesty's pleasure be farther
known.

Secondly, if it be a grant that is not merely vulgar,
and hath not of course passed at the signet by afac
simile, but needeth science, my duty shall be to exa-
mine whether it hath passed by the learned counsel
and had their docket; which is that his Majesty reads,
snd leads him. And if I find it otherwise, although
the matter were not in itself inconvenient, yet I hold
it a just cause of stay, for precedent's sake, to keep
men in the right way.

Thirdly, if it be a grant which I conceive, out of
my little knowledge, to be against the law; of which
nature Theodosius was wont to say, when he was
pressed, " I spake it, or I wrote it, but I granted it
* ; not if it be unjust :" J will call the learned counsel
to it, as well him that drew the book as the rest, or
some of them : and if we find cause, I will inform his
Majesty of our opinion, either by myself or some of
them. And as for the judges, they are judges of
grants past, but not of grants to come, except the
King call them.

Fourthly, if the grants be against the King's public
book of bounty, I am expressly commanded to stay
them until the King either revise his book in general,
or give direction in particular.

Fifthly, if, as a counsellor of estate, I do foresee
inconvenience to ensue by the grant in reason of estate,
in respect of the King's honour, or discontent, and
murmur of the people ; I will not trust mine own
judgment, but I will either acquaint his Majesty with
it, or the council table, or some such of rny lords as
I shall think fit.

Lastly, for matter of pardons ; if it be for treason,
misprision, murder, either expressed or involute, by
a non-obstante ; or of piracy, or of pramunire, or of
fines, or exemplary punishment in the star-chamber,
or some other natures; I shall by the grace of God
stay them until his Majesty, who is the fountain of



Speech on faking his Place in Chancery. 493

grace, may resolve between God and him, how far
grace shall abound or super-abound.

And if it be of persons attainted and convicted of
robbery, burglary, etc. then will I examine whether
the pardons passed the hand of any justice of assize, or
other commissioners, before whom the trial was made ;
and if not, I think it my duty also to stay them.

And your lordships see in this matter of the seal, and
his Majesty's royal commandment concerning the
same, I mean to walk in the light; so that men may
know where to find me : and this publishing thereof-
plainly, I hope, will save the King from a great deal
of abuse, and me from a great deal of envy; when
men shall see that no particular turn or end leads me,
but a general rule.

For the third general head of his Majesty's precept*
concerning speedy justice, it rests much upon myself,
and much upon others: yet so, as my procuration may
give some remedy and order to it. For myself, I am
resolved that my decree shall come speedily, if not in-
stantly, after the hearing, and my signed decree spee-
dily upon my decree pronounced. For it hath been a
manner much used of late in my last lord's time, of
whom I learn much to imitate, and, somewhat to
avoid ; that upon the solemn and full hearing of a
cause nothing is pronounced in court, but breviatesare
required to be made ; which I do not dislike in itself
in causes perplexed. For I confess I have somewhat
of the cunctative ; and I am of opinion, that whoso-
ever is not wiser upon advice than upon the sudden,
the same man was no wiser at fifty than he was at
thirty. And it was my fathers ordinary word, " You
" must give me time." But yet I find when such
breviates were taken, the cause was sometimes for-
gotten for a term or two, and then set down for a new
hearing, three or four terms after. And in the mean
time the subjects pulse beats swift, though the chancery
pace be slow. Of which kind of intermission I see
no use, and therefore I will promise regularly to pro-
nounce my decree within few days after my hearing ;
and to sign my decree at the least in the vacation after
the pronouncing. For fresh justice is the sweetest. And



494 Speech on taking liis Place in Chancery.

to the end that there be no delay of justice, nor any
other means-making or labouring, but the labouring of
the counsel at the bar.

Again, because justice is a sacred thing, and the
end for which I am called to this place, and therefore
is my way to heaven ; and if it be shorter, it is never a
\vhit the worse, J shall by the grace of God, as far as
God will give me strength, add the afternoon to the
forenoon, and some fourth night of the vacation to the
term, for the expediting and clearing of the causes of
the court ; only the depth of the three long vacations
I would reserve in some measure free from business of
estate, and for studies, arts and sciences, to which in
my own nature I am most inclined.

There is another point of true expedition, which
resteth much in myself, and that is in my manner of
giving orders. For I have seen an affectation of dis-
patch turn utterly to delay at length : for the manner
of it is to take the ti,le out of the counsellor at the
bar his mouth, and to give a cursory order, nothing
tending or conducing to the end of the business. It
makes me remember what I heard one say of a judge
that sat in chancery ; that he would make forty orders
in a morning out of the way, and it was out of the way
indeed ; for it was nothing to the end of the business :
and this is that which makes sixty, eighty, an hundred
orders into cause, to and fro, begetting one another;
and like Penelope's w r eb, doing and undoing. But I
mean not to purchase the praise of expeditive in that
kind ; but as one that have a feeling of my duty, and
of the case of others. My endeavour shall be to
hear patiently, and to cast my order into such a mold
as may soonest bring the subject to the end of his
journey.

As for delays that may concern others, first the great
abuse is > that if the plaintiff have got an injunction to
stay suits at the common law, then he will spin out
his cause at length. But by the grace of God I will
make injunctions but an hard pillow to sleep on ; for if
1 find that he prosecutes not with effect, he may per-
haps, when he is awake, find not only his injunction
ipssolved, but his cause dismissed.



Speech on taking his Place in Chancery. 495

There be other particular orders, I mean to take for
non prosecution or faint prosecution, wherewith I will
not trouble you now, because summa sequarfastigia
rerum. And so much for matter of expedition.

Now for the fourth and last point of the King's
commandment ; for the cutting off unnecessary charge
of the subject, a great poition of it is fulfilled in the
precedent article ; for it is the length of suits that doth
multiply charges chiefly ; but yet there are some other
remedies that do conduce thereunto.

First, therefore I will maintain strictly, and with
severity, the former orders which I find my lord chan-
cellor hath taken, for the immoderate and needless
prolixity, and length of bills, and answers, and so
forth; as w r ell in punishing the party, as fining the
counsel, whose hand I shall find at such bills, an-
swers, efc.

Secondly, for all the examinations taken in the
court, I do give charge unto the examiners, upon
peril of losing their places, that they do not use any
idle repetitions, or needless circumstances, in setting
down the deposirions taken by them; and I would I
could help it likewise in the country, but that is almost
impossible.

Thirdly, I shall take a diligent survey of the copies
in chancery, that they have their just number of lines,
and without open and wastful writing.

Fourthly, I shall be careful there be no exaction of
any new fees, but according as they have been hereto-
fore set and tabled.

As for lawyers fees, I must leave that to the con-
science and merit of the lawyer ; and the estimation
and gratitude of the client : but this I can do ; I know
there have used to attend this bar a number of lawyers
that have not been heard sometimes, and scarce once
or twice in a term ; and that makes the client seek to
great counsel and favourites, as they call them, for
every order that a mean lawyer might as well dispatch,
a term fitter for Kings than judges. And therefore to
help the generality of lawyers, and therein to ease the
client, I will constantly observe that every Tuesday,
and other days of orders, after nine o'clock strucken,



496 Speech on taking his Place in Chancery.

I will bear the bar until eleven, or balf an bour after
ten at tbe least. And since I am upon tbe point wbom
I will bear, your lordsbips will give me leave to tell
you a fancy. It falleth out, tbat tbere be three of us
the King's servants in great places, that are lawyers
by descent, Mr. Attorney son of a judge, Mr. Soli-
citor likewise son of a judge, and myself a chancellor's
son.

Now because the law roots so well in my time, I
will water it at the root thus far, as besides these great
ones, I will hear any judge's son before a serjeant,
and any Serjeant's son before a reader, if there be not
many of them.

Lastly, for the better ease of the subjects, and the
bridling of contentious suits, I shall give better, that is
greater, costs where the suggestions are not proved,
than hath been hitherto used.

There be divers orders for the better reglement of
this court ; and for granting of writs, and for granting
of benefices and others, which I shall set down in a
table. But I will deal with no other to-day but such
as have a proper relation to his Majesty's command-
ment ; it being my comfort that I serve such a master,
that I shall need to be but a conduit only for the con-
veying of his goodness to his people. And it is true,
that I do affect and aspire to make good that saying,
< that Optimus magistrates prastat optima leg! ; which
is true in his Majesty. And for myself, I doubt, I
shall not attain it. But yet I have a domestic example
to follow. My lords, I have no more to say, but now
I will go on to the business of the court.



[ 497 ]

THE

SPEECH

WHICH WAS USED BY THE

LORD KEEPER OF THE GREAT SEAL,

In the Star-Chamber, before the Summer Circuits,
the King being then in Scotland, 1617.



JL HE King, by his perfect declaration published in
this place concerning judges and justices, hath made
the speech of his chancellor, accustomed before the
circuits, rather of ceremony than of use. For as in his
book to his son he hath set forth a true character and
platform of a King ; so in this his speech he hath done
the like of a judge and justice : which sheweth, that as



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 41 of 46)