Francis Bacon.

The works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) online

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his Majesty is excellently able to govern in chief; so he
is likewise well seen and skilful in the inferior offices
and stages of justice and government ; which is a thing
very rare in Kings.

Yet nevertheless, somewhat must be said to fulfil an
old observance ; but yet upon the King's grounds, and
very briefly : for as Solomon saith in another case, In
these things who is he that can come after the King ?

First, You that are the judges of circuits are, as it
were, the planets of the kingdom, I do you no disho-
nour in giving you that name, and no doubt you have
a great stroke in the frame of this government, as the
other have in the great frame of the world. Do there-
fore as they do, move always, and be carried with the
motion of your first mover, which is your Sovereign.
A popular judge is a deformed thing : and plaudites
are fitter for players than for magistrates. Do good to
the people, love them and give them justice; but let
it be, as the Psalm saith, nihilinde expectantes - 3 look-
ing for nothing, neither praise nor profit.

Yet my meaning is not, when I wish you to take

VOL, iv. K k

498 Speech before the Summer Circuits.

heed of popularity, that you should be imperious and
strange to the gentlemen of the country. You are
above them in power, but your rank is not much un-
equal; and learn this, that power is ever of greatest
strength, when it is civilly carried.

Secondly, You must remember, that besides your
ordinary administration of justice, you do carry the
two glasses or mirrors of the state ; for it is your duty
in these your visitations, to represent to the people the
graces and care of the King : and again, upon your
return, to present to the King the distastes and griefs
of the people.

Mark what the King says in his book : " Procure
" reverence to the King and the law ; inform my
" people truly of me, (which, we know, is hard to do
according to the excellency of his merit ; but yet en-
deavour it,) " how zealous I am for religion ; how
" I desire law may be maintained and flourish ;
" that every court should have its jurisdiction ; that
" every subject should submit himself to the law. )?
And of this you have had of late no small occasion of
notice and remembrance, by die great and strait charge,
that the King hath given me as keeper of his seal,
for the governing of the chancery without tumour or

Again, e re nala* you at this present ought to make
the people know and consider the King's blessed care
and providence in governing this realm in his absence :
so that sitting at the helm of another kingdom, not
without great affairs and business; yet he governs all
things here by his letters and directions, as punctually
and perfectly as if he were present.

I assure you, my lords of the council, and I do much
admire the extension and latitude of his care in all

In the hi<rh commission he did conceive a sinew of


government was a little shrunk ; he recommended the
care of it.

He hath called for the accounts of the last circuit
from the judges to be transmitted unto him in Scotland..

Speecli before tlie Summer Circuits.

Touching the infestation of pirates, he hath been
careful, and is, and hath put things in a way.

All things that concern the reformation or the plan-
tation of Ireland, he hath given in them punctual and
resolute directions. All this in absence.

I give but a few instances of a public nature ; the
secrets of council I may not enter into, though his
dispatches into France, Spain, and the Low-Countries,
now in his absence, are also notorious as to the out-
ward sending. So that I must conclude that his Ma-
jesty wants but more kingdoms, for I see he could
suffice to all.

As for the other glass I told you of, of representing
to the King the griefs of his people, without doubt it
is properly your part ; for the King ought to be informed
of any thing amiss in the state of his countries from the
observations and relations of the judges, that indeed
know the public pulse of the country, rather than from
discourse. But for this glass, thanks be to God, I
do hear from you all, that there was never greater
peace, obedience, and contentment in the country ;
though the best governments be always like the
fairest chrystals, wherein every little icicle or grain is
seen, which in a fouler stone is never perceived.

Now to some particulars, and not many : of all
other things I must begin as the King begins ; that is
with the cause of religion, and especially the hollow
church-papist. St. Augustin hath a good comparison
of such men, affirming, that they are like the roots of
nettles, which themselves sting not, but yet they bear
all the stinging leaves : let me know of such roots,
and I will root them out of the country.

Next, for the matter of religion > in the principal
place I recommend both to you and to the justices, the
countenancing of godly and zealous preachers. I
mean not sectaries or novellists, but those which are
sound and conform, and yet pious and reverend : for
there will be a perpetual defection, except you keep
men in by preaching, as well as law doth by punish-
ing ; and commonly spiritual diseases are not cured
but by spiritual remedies.

K k 2

Speech before the Summer Circuits.

Next, let me commend unto you the repressing, as
much as may be, of faction in the countries, of which
ensue infinite inconveniencies, and perturbations of all
good order, and crossing of all good service in court
or country, or wheresoever. Cicero, when he was
consul, had devised a fine remedy, a mild one, but
an effectual and apt one, for he saith, Eos> qui otium
perturbant, reddam otiosos. Those that trouble others
quiet, I will give them quiet; they shall have nothing
to do, nor no authority shall be put into their hands.
If I may know from you, of any who are in the coun-
try that are heads or hands of faction, or men of
turbulent spirits ; I shall give them Cicero's reward,
as much as in me is.

To conclude, study the King's book, and study
yourselves how you profit by it, and all shall be well.
And you the justices of peace in particular, let me say
this to you, never King of this realm did you so much
honour as the King hath done you in his speech, by be-
ing your immediate director, and by sorting you and
your service with the service of ambassadors, and of his
nearest attendance. Nay more, it seems his Majesty-
is willing to do the state of justice of peace honour
actively also ; by bringing in with time the like form
of commissionin to the government of Scotland, as that-
glorious King, Edward the third, did plant this com-
mission here in this kingdom. And therefore you are
not fit to be copies, except you be fair written without
blots or blurs, or any thing unworthy your authority :
and so I will trouble you no longer for this time,








Upon his calling to be

Sir William Jones,

JL HE King's most excellent Majesty, being duly in-
formed of your sufficiency every way, hath called you,
by his writ now returned, to the state and degree of a
serjeant at law; but not to stay there, but, being so
qualified, to serve him as his chief justice of his King's
bench in his realm of Ireland. And therefore that
which I shall say to you, must be applied not to yourser-
jeant's place, which you take but in passage, but to that
great place where you are to settle ; and because I will
not spend time to the delay of the business of causes of
the court, I will lead you the short journey by ex-
amples, and not the long by precepts.

The place that you shajl now serve in, hath been
fortunate to be well served in four successions before
you : do but take unto you the constancy and integrity
of Sir Robert Gardiner j the gravity, temper, and direc-
tion of Sir James Lea ; the quickness, industry, and
dispatch of Sir Humphry Winch ; the care and affec-
tion to the commonwealth, and the prudent and poli-
tic administration of Sir John Denham, and you shall
need no other lessons. They were all Lincolns-Inn
men as you are, you have known them as well in their
beginnings, as in their advancement,

50? Speech to Sir W. Jones, Lord Chief Justice.

But because you are to be there not only chief jur*-
tice, but a counsellor of estate, I will put you in mind
of the great work now in hand, that you may raise
your thoughts according unto it. Ireland is the last
ex Jiliis Europe, which hath been reclaimed from de-
solation, andadesart, in many parts, to population and
plantation ; and from savage and barbarous customs
to humanity and civility. This is the King's work in
chief: it is his garland of heroical virtue and felicity,
denied to his progenitors, and reserved to his times.
The work is not yet conducted to perfection, but is in
fair advance: and this I will say confidently, that if
God bless this kingdom with peace and justice, no
usurer is so sure in seven years space to double his
principal with interest, and interest upon interest, as
that kingdom is within the same time to double the
stock both of wealth and people. So as that kingdom,
which once within these twenty years wise men were
wont to doubt whether they should wish it to be in a
pool,, is like now to become almost a garden, and
younger sister to Great Britain. And therefore you
must set down with yourself to be not only a just go-
vernor, and a good chief justice, as if it were in Eng-
land, but under the King and the deputy you are to be
a master-builder, and a master-planter, and reducer of
Ireland. To which end, I will trouble you at this
time but with three directions.

The first is, that you have special care of the three
'plantations. That of the north, which is in part acted;
that of Wexford, which is now in distribution ; and
that of Longford and Letrim, which is now in survey.
And take this from me, that the bane of a plantation
is, when the undertakers or planters make such haste
to a little mechanical present profit, as disturbeth the
whole frame and nobleness of the work for times to
come. Therefore hold them to their covenants, and
the strict ordinances of plantation.

The second is, that you be careful of the King's re-
venue, and by little and little constitute him a good
demesne, if it may be, which hitherto is little or none.
For the King's case is hard; when every man's land

Speech to Sir W. Jones, Lord Chief Justice.

shall be improved in value with increase manifold,
and the King shall be tied to his dry rent.

My last direction, though first in weight, is, that you
do all good endeavours to proceed resolutely and con-
stantly, and yet with due temperance and equality, in
matters of religion ; lest Ireland civil become more
dangerous to us than Ireland savage. So God give
you comfort of your place.

After Sir William Jones's speech :

I had forgotten one thing, which was this. You
may take exceeding great comfort, that you shall serve
with such a deputy ; one that, I think, is a man or-
dained of God to do great good to that kingdom.
And this I think good to say to you, that the true
temper of a chief justice towards a deputy is, neither
servilely to second him, nor factiously to oppose him.

[ 504 ]





When he was called to be one of the Barons of the
Exchequer, in 1617.

Sir Jo Jm Denham,

M, HE King, of his grace and favour, hath made
choice of you to be one of the barons of the exche-
quer, to succeed to one of the gravest and most reverend
judges of this kingdom ; for so I hold Baron Altham
was. The King takes you not upon credit but proof,
and great proof of your former service : and that in
both those kinds wherein you are now to serve : for as
you have shewed yourself a good judge between party
and party, so you have shewed yourself a good admi-
nister of the revenue, both when you were chief ba-
ron, and since as counsellor of estate there in Ireland,
where the council, as you know, doth in great part
manage and messuage the revenue.

And to both these parts I will apply some admoni-
tions, but not vulgar or discursive, but apt for the
times, and in few words, for they are best remem-

First therefore, above all you ought to maintain the
King's prerogative, and to set down with yourself, that
the King's prerogative and the law are not two things;
but the King's prerogative is law, and the principal
part of the law, the first-born or pars prima of the
law; and therefore in conserving or maintaining that,
you conserve and maintain the law. There is not in
the body of man one law of the head, and another of
the body, but all is one entire law.

Speech to Sir John Denham. 505

The next point that I would now advise you is, that
you acquaint yourself diligently with the revenue ; and
also with the ancient records and precedents of this '

court. When the famous case of the copper-mines
was argued in this court, and judged for the King, it
was not upon the fine reasons of wit ; as that the King's
prerogative drew to it the chief in quaque specie : the
lion is the chief of beasts, the eagle the chief of birds,
the whale the chief of fishes, and so copper the chief
of minerals ; for these are but dalliances of law and
ornaments : but it was the grave records and prece-
dents that grounded the judgment of that cause ; and
therefore I would have you both guide and arm your-
self with them against these vapours and fumes of
law, which are extracted out of mens inventions and

The third advice I will give you hath a large extent;
it is, that you do your endeavour in your place so to ma-
nage the King's justice and revenue, as the King may
have most profit, and the subject least vexation : for
when there is much vexation to the subject, and little
benefit to the King, then the exchequer is sick : and
whe'n there is much benefit to the King, with less
trouble and vexation to the subject, then the exche-
quer is sound. As for example; if there shall be
much racking for the King's old debts ; and the more
fresh and late debts shall be either more negligently
called upon, or over-easily discharged, or over indul-
gently stalled : or if the number of informations be
many, and the King's part or fines for compositions a
trifle; or if there be much ado to get the King's new
land upon concealments, and that which he hath al-
ready be not known and surveyed, nor the woods
preserved, I could put you many other cases, this falls
within that which I term the sick state of the exche-
quer: and this is that which makes every man ready
with their undertakings and their projects to disturb
the ancient frame of the exchequer ; than the which,
I am persuaded, there is not a better, this being the
burden of the song: That much goeth out of the
subject's purse, and little cometh to the King's purse.

506 Speech to Sir John Dcnham.

Therefore, give them not that advantage so to say,
Sure I am, that besides your own associates, the barons,
you serve with two superior great officers, that have
honourable and true ends, and desire to serve the
King and right the subject.
There resteth, that J deliver you your patent,

[ 507 ] 475





When he was called to be one of the Judges of the

Mr. Serjeant Hutton,

JL HE King's most excellent Majesty, being duly in-
formed of your learning, integrity, discretion, experi-
ence, means, and reputation in your country, hath
thought fit not to leave you these talents to be employed
upon yourself only, but to call you to serve himself,
and his people, in the place of one of his justices of
the court of common-pleas.

This court where you are to serve, is the local cen-
ter and heart of the laws of this realm : here the sub-
ject hath his assurance by fines and recoveries ; here he
hath his fixed and invariable remedies by pnecipcs and
writs of right; here justice opens not by a by gate of
privilege, but by the great gate of the King's original
writs out of the chancery. Here issues process of out-
lawry ; if men will not answer law in this center of
' law, they shall be cast out. And therefore it is pro-
per for you, by all means, with your wisdom and for-
titude, to maintain the laws of the realm : wherein,
nevertheless, I would not have you head-strong, but
heart-strong; and to weigh and remember with your-
self, that the twelve judges of the realm are as the
twelve lions under Solomon's throne : they must shew
their stoutness in elevating and bearing up the throne.
To represent unto you the lines and portraitures of a
good judge :

The first is, That you should draw your learning out
of your books 3 not out of your brain.

50& Speech to Justice Hutton.

2. That you should mix well the freedom of your
own opinion with the reverence of the opinion of your

3. That you should continue the studying of your
books, and not to spend on upon the old stock.

4. That you should fear no man's face, and yet not
turn stoutness into bravery.

5. That you should be truly impartial, and not so as
men may see affection through fine carnage.

6. That you should be a light to jurors to open their
eyes, but not a guide to lead them by the noses.

7. That you affect not the opinion of pregnancy and
expedition by an impatient and catching hearing of the
counsellors at the bar.

8. That your speech be with gravity, as one of the
sages of the law ; and not talkative, nor with imperti-
nent flying out to shew learning.

9. That your hands, and the hands of your hands,
I mean those about you, be clean, and uncorrupt from
gifts, from meddling in titles, and from serving of turns,
be they great ones or small ones.

10. That you contain the jurisdiction of the court
within the ancient merestones, without removing the

11. Lastly, That you carry such a hand over your
ministers and clerks, as that they may rather be in awe
of you, than presume upon you.

These and the like points of the duty of a judge, I
forbear to enlarge ; for the longer I have lived with
you, the shorter shall my speech be to you; knowing
that you come so furnished and prepared with these
good virtues, as whatsoever I shall say cannot be new
unto you ^ and therefore I will say no more unto you
at this time, but deliver you your patent.

[ 509 ]



For the better and more tegular

Administration of Justice in the Chancery^
To be daily observed,, saving the prerogative of the Court.

i\O decree shall be reversed, altered, or explained, Decrees,
being once under the great seal, but upon bill of re-
view : and no bill of review shall be admitted, except
it contain either error in law, appearing in the body of
the decree, without farther examination of matters in
fact, or some new matter which hath risen in time af-
ter the decree, and not any new proof which might
have been used when the decree was made : never-
theless upon new proof, that is come to light after the
decree made, and could not possibly have been used
at the time when the decree passed, a bill of review
may be grounded by the special license of the court,
and not otherwise.

2. In case of miscasting, being a matter demonstra-
tive, a decree may be explained, and reconciled by an
order without a bill of review ; not understanding, by
miscasting, any pretended misrating or misvaluing, but
only error in the auditing or numbering.

3. No bill of review shall be admitted, or any other
new bill, to change matter decreed, except the decree
be first obeyed and performed: as, if it be for land,
that the possession be yielded ; if it be for money, that
the money be paid ; if it be for evidences, that the
evidences be brought in ; and so in other cases which
stand upon the strength of the decree alone.

4. But if any act be decreed to be done which ex-
tinguisheth the parties right at the common law, as
making of assurance or release, acknowledging satis-

510 Ordinances in Chancery.

faction, cancelling of bonds, or evidences, and the
like ; those parts of the decree are to be spared until
the bill of review be determined ; but such sparing is
to be warranted by public order made in court.

5. No bill of review shall be put in, except the
party that prefers it enter into recognizance with sure-
ties for satisfying of costs and damages for the delay,
if it be found against him.

6. No decrees shall be made, upon pretence of
equity, against the express provision of an act of par-
liament : nevertheless if the construction of such act
of parliament hath for a time gone one way in ge-
neral opinion and reputation, and after by a later judg-
ment hath been controlled, then relief may be given
upon matter of equity, for cases arising before the said
judgment, because the subject was in no default.

7. Imprisonment for breach of a decree is in nature
of an execution, and therefore the custody ought to be
strait, and the party not to have any liberty to go
abroad, but by special license of the lord Chancellor;
but no close imprisonment is to be, but by express or-
der for wilful and extraordinary contempts and diso-
bedience, as hath been used.

8. Jn case of enormous and obstinate djsobedience
in breach of a decree, an injunction is to be granted
sub pcena of a sum ; and upon affidavit, or other suffi-
cient proof, ot persisting in contempt, fines are to be
pronounced by the lord Chancellor in open court, and
the same to be estreated down into the hanaper, if
cause be, by a special order.

9. In case of a decree made for the possession of
land, a writ of execution goes forth ; and if that be
disobeyed, then process of contempt according to the
course of the court against the person, unto a com-
mission of rebellion ; and then a serjeant at arms by
special warrant : and in case the serjeant at arms can-
not find him, or be resisted ; or upon the coming in of
the party, and his commitment, if he persist in disobe-
dience, an injunction is to be granted for the posses-
sion ; and in case also that be disobeyed, then a com-
mission to the sheriff to put him into possession.

Ordinances in Chancery. 511

10. Where the party is committed for the breach of
a decree, he is not able to be enlarged until the decree
be fully performed in all things, which are to be done
presently. But if there be other parts of the decree
to be performed at days, or times to come, then lie
may be enlarged by order of the court upon recogniz-
ance, with sureties to be put in for the performance
thereof dcfuturo y otherwise not.

11.' Where causes come to a hearing in court, no
decree bindeth any person who was not served with
process ad aiidiendum jiidicinm, according to the course
of the court, or did appear gratis in person in court.

12. No decree bindeth any that cometh in b<ma t fidc 9
by conveyance from the defendant before the bill ex-
hibited, and is made no party, neither by bill nor the
order: but where he comes mpetidente lite, and while
the suit is in full prosecution, and without any colour
of allowance or privity of the court, there regularly the
decree bindeth ^ but if there were any intermission of
suit, or the court made acquainted with the convey-
ance, the court is to give order upon the special mat-
ter according to justice.

13. Where causes are dismissed upon full bearing, Dimis-

and the dismission signed by the lord Chancellor, such sions *
causes shall not be retained again, nor new bill exhi-
bited, except it be upon new matter, like to the case
of the bill of review.

1 4. In case of all other dismissions, which are not up-
on hearing of the cause, if any new bill be brought, the
dismission is to be pleaded \ and after reference and
report of the contents of both suits, and consideration
taken of the former orders and dismission, the court
shall rule the retaining or dismissing of the new bill,
according to justice and nature of the case.

15. All suits grounded upon wills nuncupative,
leases parol, or upon long leases that tend to the de-
feating of the King's tenures, or for the establishing of
perpetuities, or grounded upon remainders put into the
crown, to defeat purchasers; or for brokage or re-
wards to make marriages ; or for bargains at play and

51 ? Ordinances in Chancery.

wagers ; or for bargains for offices contrary to the
statute of 5 and 6 Ed. VI. or for contracts upon usury
or simony, are regularly to be dismissed upon motion,

Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 42 of 46)