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I HAVE already explained why this argument is reprinted from the Collectanea Juridica, and not from the Stowe MS. I have only made obvious verbal and typographical corrections, and have generally noted the former.
The case is reported by Moore, p. 842.; by Bulstrode, vol. iii. p. 32. ; and by Rolle, vol. i. pp. 188. 206. and 288. It commenced in Easter Term, 1615. This last speech of Bacon's was delivered January 25th, 1615-6: the former editor, though giving references to all the reports, seems not to have looked at Rolle, who at p. 288. gives a full summary of it, and has been misled by Bulstrode into imagining that it was prepared, but never spoken. Bacon bimself, on the contrary, says it had “ a mixture of the sudden.” He adds, that it took two hours and a half in the delivery, and “lost not one auditor that was present at the beginning,” and that Coke pronounced it to be “ a famous argument."!
The case was this: — In or before September, 1611?, John Murray, Groom of the Bedchamber, procured the appointment of the defendant Michell 3 to a newly created Patent Office, “ for the sole making cf writs of Superscdcas quia improvidè emanavit, in the Common Pleas.” The plaintiff Brownlow, who had held the office of Prothonotary from the time of Elizabeth “, brought an assize to je restored to the possession of the ancient fees attached to this duty, and so raised the question whether the patent was lawful. The cause of the delay till 1613 is not explained.
See his letter to the King, January 27th, 1615-6. ? It is difficult and not material to make out the exact facts and dates. It is saiil that two Patents were recited in the Writ de non procedendo; the date of the first being January 9th, 7 Jac. i.e. 1609-10. Sept. 19th, 1611, is the date of a Docket in the State Paper Office, directing Sir William Killigrew or his depuiy, “ to be acquainted with the Patent made to John Michell, at the suit of John Murray, &c." One Cox or Cop was a co-defendant, and I suppose the two Patents m:y somehow have reference to the two names.
3 Sir John in the Reports, Esquire in the S, P. O.
* Burke's Extinet Baronctages, the only authority which I could light upon after dome scarch.
Bacon disclaims having had any hand in passing this patent! Murray was influential at Court; his name occurs not un-. frequently in the S, P. O. Calendar, as the recipient of grants of various kinds in his own name; and Bacon speaks of him as directly interested in this case. It seems probable, therefore, that the grant was made merely improvidè, as matter of favour, and without any deliberate design either of altering the constitution of the offices of the Common Law Courts, or of providing for the necessities of the Crown, after the French fashion, by the creation and sale of new offices.
But it appears that in this, as in the contemporary business of monopolies, James was running into difficulties before which Elizabeth had already found it expedient to give way. She too had attempted to erect the same office, and the Judges of the day had refused obedience to letters and privy seals ordering them to receive the patentee into his office. The final settlement of the dispute looks like a device of her own, for extricating herself with as much dignity and as little loss of power as might be. A fresh command was sent that the Judges should receive Cavendish, the patentee, or appear before the Chancellor and the Master of the Rolls to state the reason of their refusal. They did so, citing Magna Charta — that no man shall be disseised of his freehold, — " and the queen was satisfied.”
Whether this case was known to Bacon before the argument in Trin. Term, when it was alleged on the other side, does not appear. But the course which he took from the first, not only made it impossible for him to recede without some disgrace to the King, but brought in question the limits of a much more important claim of the prerogative than that of re-modelling the offices of the Common Law Courts without the assent of
i Infrà. p. 700.
, Rolle, p. 206., gives the fullest account of this case, but all the other Reporters mention it. If Brownlow had come into office after Michell, the particular ground on which the Judges rested their refusal would not have applied in Michell's case, though it would still have been rash to renew the dispute.
3 While these pages were passing through the press, I found in Harl. MSS. 1756. (a volume containing some of Bacon's works), p. 548., a report of Cavendish's case, which may very well be Anderson's, which was mentioned in the Court. It secms there was no formal decision : but the Chancellor and Master of the Rolls reported “their good allowance" of the Judge's reasons, which the Reporter “heard her Majesty did well accept," and nothing more was heard of the matter.
Parliament, whether with or without consideration of vested rights. When asking time to plead, he described the original question in the cause as affecting one of the “ four columns of the prerogative,”—viz. that concerning matters judicial,“ which he should ever maintain according to his place: ” and when the time for pleading came he and the solicitor-general appeared with a formal message from the King and presented the writ de non procedendo. He endeavoured to stop any argument on the writ, insisting it was peremptory and not to be questioned: this was overruled, and the matter was argued on the other side, and for the Crown by the solicitor-general, in Trin. Term; and finally Bacon was heard in Hil. Term, Jan. 25th. The reporters say both sides were very confident of success: Bacon thought he had produced a great effect; but nevertheless, “because the times were as they were,” recommended the King, who had interfered once or twice with the cause before, to reiterate his command that the Chief Justice, having heard the attorney-general, should forbear further proceeding till he had communicated with his Majesty. It will be seen that in his argument he treats the writ as concerning rather the dignity than the substantial power of the Crown:Mr. Brownlow would have his cause heard on the Common Law side of Chancery, instead of in the King's Bench, and no doubt would have justice done to him. But in his letter to the King he explains that the chief importance of the proceedings was in bringing any case that might concern the King, in profit or in power, from the ordinary benches to the Chancellor, who (as the King knew) “ is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king.”
The Judges did not dispute, nor could they, that there were abundant precedents of this writ. The only question, had they proceeded to judgment, would have been whether they could see their way to have fixed some reasonable and constitutional bounds, definable by law, within which it was to be allowed. Bacon, it will be observed, had at first contended that the writ was to be obeyed without any opportunity of discussion: in other words that the mandatory part alone was to be looked at. When beaten from this, he here argues that it was only necessary that it should assert that the King had a right, and should show that, if it existed, the case touched it; the Chancellor being thereupon made the judge whether such a
right should be recognised — thus making him in fact the sole and unchecked expositor of the constitution in all such points as could in any way affect private rights.
No decision was given. The case was compromised, at whose instigation we are not informed; but the substance of the arrangement is mentioned by the reporters, and is most authentically expressed in the Warrant Book, in the S. P. 0.1
It recites the purport of the patent to Michell for making the writs of Supersedeas, “ the making whereof the Prothonotaries and Exigenters pretended to belong to them only, and commenced a suit in the K. B. which yet dependeth undecided ;” and states “ that they nevertheless by humble petition make a free and voluntary offer to cease their suit, and consent that the said office shall be established and enjoyed by the said patentee; humbly beseeching We would be pleased to make some declaration of our royal determination, under our privy seal, to our Judges, that we will not admit any such suits hereafter that may tend to the granting away, abatement, or dimi. nution of any of the profits, or preeminences which the Judges, officers, or clerks of the said Court do now hold and enjoy (other than the said place and office aforesaid). Which their petition we cannot but, according to our princely inclination, take in good part, as proceeding from men that do well discern what befits them to do, and what they may expect upon an offer so full of duty and good manners." And the King proceeds to make the declaration accordingly.2
So that, in the end, Murray and his friend kept their profits; the King forbad himself, under penalty of breaking his recorded faith, the exercise of his alleged prerogative of ordering the course of the Common Pleas offices; and his claim to issue his writ de non procedendo Rege inconsulto, unquestionable in the Courts of Law, remained where it had been, or was made less tenable for the future by not being in this case acknowledged.
Undated, and referred in the Calendar to Sept. 1611; I presume because of its obvious connection with the Docket of that date already cited. I do not understand how the documents came to be transcribed into this Warrant Book in the confused order in which they stand.
2 The note of a grant to Michell of the office of keeping the seal and signing of writs in the Common Pleas, during pleasure, dated April 19th, 1616, appears in the Grant Book ; which I suppose to mean the same office as before, regranted.
SIR FRANCIS BACON, KNIGHT,
ATTORNEY-GENERAL IN THE KING'S BENCH,
IN THE CASE DE REGE INCONSULTO,
BETWEEN BROWNLOW AND MICHELL.
This case hath been well handled on the other side, if that may be said to be handled which, in the chief points, is scarcely touched : neither do I impute that to Mr. Croke, that argued ; who I know is learned, and hath taken a great deal of pains; but ex nihilo nihil fit; the fault was in the stuff, not in the workman : yet this I must say, that it is a strange form of proof to put a number of cases where this writ hath been obeyed, which is directly against you; and then to feign to yourself what was the reason why it was obeyed, and to go on and imagine that if it had been thus and thus it would not have been obeyed. Sir, the story is good; but your poetry why it was done, and what should have been done if the case had differed,—therein you do but please yourself; it will never move the Court at all.
Now I shall answer you so fully, as neither reason nor authority, which you have made and alledged, shall pass. But first I will confirm the truth of that I hold; and incidentally in the proper place confute and encounter every objection that hath been or can be made; for, rectum est judex sui et obliqui.
My lords, this writ de non procedendo ad assisam, rege incon- The writ of sulto, is in its nature a mere-stone of the king's inheritance, dendooege and as a hedge about his vineyard; and therefore it is good to
non proces dendo rege inconsulto.