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tion of the prisoners, with the exception of the Earl and Countess of Somerset, who were pardoned, and even pensioned by the king.
The firmness and integrity of the chief justice were never more advantageously displayed than in the great case of the commendams. For our present purpose it will be sufficient to state, that in that case the king had been informed, that certain positions had been laid down by the counsel, in arguing a cause before the King's Bench, injurious to the royal prerogative. The attorney general, Sir Francis Bacon, was accordingly ordered to notify to the chief justice the king's express pleasure, that the cause should proceed no further, until his majesty should have been consulted thereon. This was done by letter on the 25th of April, 1616. Coke, however, requested, that a similar order might issue to his brother judges, which being done, they all assembled, and certified to the king, that the letters received by them were contrary to the law and their oaths. They insisted, that the case was one between subject and subject, and depended upon the construction of certain acts of parliament, which they were bound to expound uprightly and faithfully. In reply to this representation, James addressed to the judges a letter, which bears throughout evident marks of his own princely hand. He informed his trusty and well-beloved counsellors, that they might have spared their labour in informing him of the nature of their oath, for although he had never studied the common law of England, yet he was not ignorant of any points which it belonged to a king to know—that he would not suffer the prerogative royal of his crown to be- wounded through the sides of a private person, and that he, therefore, admonished them, that since the prerogative had been more boldly dealt withal in Westminster Hall during the time of his reign than ever it was before in the reigns of divers princes immediately preceding him, he would no longer endure that popular and unlawful liberty. In conclusion, he did, out of his absolute authority royal, command the judges to forbear to meddle any farther in this plea till he came to town, and that out of his own mouth they should hear his pleasure in this business. On the 6th of June all the Judges were summoned to appear before the privy council, where the king read them a severe lecture on the errors of their conduct in this affair, "which his majesty did set forth to be both in matter and manner." With regard to the form of their representation, all the judges upon their knees acknowledged that they had erred, and humbly prayed his majesty's gracious favour and pardon; but as far as respected the matter of the letter, Sir Edward Coke nobly entered into a defence of it, affirming that the postpone
VOL. VIII. PART I. I
ment required by the king was a delay of justice, and contrary to law and the judges' oaths; and that no point of prerogative would have arisen upon the case. The king replied, that for the judges to decide whether his prerogative was concerned or not without consulting him, was "preposterous management," and Bacon, with the other king's counsel, was ordered to argue these points. The chief justice then insisted, that it was highly improper that the counsel should dispute with the judges; but upon Bacon applying to the king, his majesty affirmed that it was the duty of his counsel so to argue, and that he would maintain them therein. Coke observed, that he would not dispute with his majesty, to which James replied, "that the judges would not dispute with him, and that his counsel might not with them, so that whether they did well or ill, it must not be disputed." The lord chancellor then gave his opinion, that the king's request was not illegal, whereupon the following question was propounded to each of the judges: "Whether if at any time, in a case depending before them, which his majesty conceived to concern him either in power or in profit, and thereupon required to consult with them, that they should stay proceeding in the meantime, they ought not to stay accordingly?" With the single exception of Sir Edward Coke, all the judges acknowledged that it was their duty so to do, and even promised, that they would not only abstain from speaking any thing themselves to weaken his majesty's prerogative of commendams, but would directly, and in plain terms, affirm the same, and would correct the erroneous and bold speeches at the bar, in derogation of the royal privileges. The reply of the lord chief justice was, "that when that case should be, he would do that should be fit for a judge to do"—a noble answer, becoming the high situation which he filled. When the judges had thus submitted, James, after exhorting them in his usual style, gave them permission to proceed in the cause, and dismissed them. The opinion of the council was then taken; and the supple courtiers, far from entertaining any of the doubts which had staggered the judges, declared, that so far was the king's request from any colour of such shadow or interpretation as had been put upon it, that "it was against common sense to think the contrary."
The odium into which, in all probability, this conduct brought the chief justice at court, was farther increased by the dispute in which he involved himself with the Lord Chancellor Ellesmere, with regard to the authority of their respective courts. The dislike contracted by James to the common law is well known. This distaste Bacon had endeavoured to increase, by prejudicing the king's mind in favour of the court of chancery, which, in one of his letters to him, he calls "the court of his absolute power." The king, therefore, became exceedingly jealous of any attempts to circumscribe his favourite jurisdiction. The dispute between the courts arose in the following manner. The defendant, in a cause in the King's Bench, prevailed upon the plaintiffs principal witness not to attend, and in order more completely to incapacitate him from giving his evidence, one of the defendant's agents carried the man to a tavern, called for a gallon of sack, and bade the witness drink. No sooner did the latter touch the flagon with his lips, than the defendant's agent quitted the room. The cause came on, and the witness was called, upon which the court was informed that he was unable to appear; and to prove this, the defendant's agent was called, who deposed, that he left the witness in such a condition, that if he continued in it but a quarter of an hour he was a dead man. From the want of this man's testimony the plaintiff failed in his cause, and the defendant had a verdict. To impeach the judgement thus fraudulently obtained, the plaintiff exhibited his bill in the Court of Chancery for relief, to which the defendants refused to put in an answer, and were committed for their contempt. In return for this the defendants preferred two indictments against the plaintiff", founded upon the statutes of 27 Edw. 3, c. 1. and 4 Henry 4, c. 23. for impeaching the judgements given in the King's Bench, but, notwithstanding the charge of the judge, the bills were thrown out. The king having received intelligence of this transaction, desired Bacon to lay the merits of the case before him, and the attorney general accordingly addressed a letter to his majesty, containing a full exposition of the whole affair. He censures Sir Edward Coke very severely, for choosing this time to question the power of the Court of Chancery.
"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 be 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."
At the same time Bacon advised the king, that Coke ought not, at this time, to be disgraced. Nothing can be more artful and subtle than this part of his letter:
"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 to that which remaineth of these capital causes, and also for that which I find is in his breast, touching your finances and the matter of your estate. And (if I might 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."
Now at this very period, when the illness of Sir Thomas Ellesmere, the Lord Chancellor, rendered it probable, that the woolsack would soon be vacant, Bacon was straining every nerve to secure it to himself. Sir Edward Coke was his most formidable rival, and he therefore seized with avidity the present opportunity of destroying his pretensions to the office. To disgrace him at this time would be improper, because it would leave the seat of chief justice vacant, with which James might think it sufficient to reward his faithful attorney; but, by retaining Coke in his office, and putting an end to his hopes in some kind, or, in other words, by crushing his pretensions to the seals, Bacon knew that he should rid himself of the only competitor whom he had any cause to dread. In his letter to the king, soliciting the chancellorship, he explicitly states his objections against the appointment of the chief justice; and it is highly creditable to the character of the latter, that all his opponent's sagacity was unable to discover any other fault, which unfitted him for that high office, than his "over-ruling nature."
"If you take my Lord Coke, this will follow: first, your majesty shall put an over-ruling nature into an over-ruling place, which may breed an extreme; next, you shall blunt his industries, in matters of finances, which seemeth to aim at another place."
It is in this letter, that Bacon has the incredible meanness to tell the king, that, as for himself, he could only present his majesty with gloria in obsequio.*
It does not appear what part the chief justice, in particular, took in this affair, or in what manner he rendered
* Miss Aikin, in her valuable Memoirs of James I., after citing a portion of this letter, follows it up by observing, that the gloria in obsequio, of which Bacon here makes his boast, is expressed with peculiar energy in another letter, in which he is not ashamed to say to the king, "I am afraid of nothing, but that the master of the horse, your excellent servant, and I, shall fall out who shall hold your stirrup best." It should be observed, that this phrase is only used figuratively by Bacon, who adds, "but were your majesty mounted and seated without difficulties and distastes in your business, as I desire," &c. Bacon's Works, v. 389.
himself peculiarly obnoxious to the monarch; indeed, from an expression in Bacon's letter, it should seem, that he only acted in the ordinary discharge of his duty.
"Your majesty," says Bacon, "may not see it, but I confess it to be suspicious, that my Lord Coke was any way aforehand privy to that which was done, or that he did set 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 divest it in some good manner."
Whatever may have been the conduct of Coke, it is certain, that he was proceeded against with the greatest rigour. On the 26th of July, 1616, he was cited before the privy council, and on his presenting himself, on his knees, at the board, he was charged "with certain acts and speeches wherewith his majesty was unsatisfied, in number, three." 1. With having attempted to defraud the crown, with regard to a debt due from Sir Christopher Hatton; but of this charge he afterwards proved himself innocent. 2. That he had uttered speeches of high contempt in the seat of justice. 3. That his carriage, in the presence of his majesty, the privy council, and judges, had been uncomely and undutiful.
The second charge related to the dispute between the courts of chancery and common law, and the chief justice was now accused of "giving too much heart and encouragement to that cause." The third charge was divided into two heads: first, that Coke had disputed the rights of the king's counsel to argue against the judges in the case of commendams; and, secondly, that in the same case he had dissented from the rest of the judges, who, upon the question put to them as before mentioned, had submitted themselves to the king's pleasure. In answer to these charges, the chief justioe said, that he would begin with the last, and that as to that, he acknowledged himself in error, and submitted himself; that with respect to the question propounded to the judges, it yielded many particulars, which suddenly occurring to his mind, caused him to make his answer, "that when the time should be, he would do that which should become an honest and just judge." In reply to the second charge, of having on the bench spoken words of high contempt, he admitted, that the words in question were spoken by him, but on another occasion; and he said, that he would never maintain a difference between the two courts, nor bring it into question, and yet, if it were an error, he might say erravimus cum patribus. He then defended his expressions, by citing several authorities, but concluded, by