« PreviousContinue »
to and fro, begetting one another; and like Penelope's web, 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 lie will spin out his cause at length. But, by the grace of God, I will make injunctions but a hard pillow to sleep on; for if I find that he prosecutes not with effect, he may perhaps, when he is awake, find not only his injunction dissolved, but his cause dismissed.
There be other particular orders, I mean to take for nm prosecution or faint prosecution, wherewith I will not trouble you now, because summa sequar fastigia 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 portion 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 chancellor hath taken, for the immoderate and needless prolixity, and length of bills, and answers, and so forth; as well in punishing the party, as fining the counsel, whose hand I shall find at such bills, answers, &c.
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 depositions 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 wasteful writing.
Fourthly, I shall be careful there be no exaction
of any new fees, but according as they have been heretofore set and tabled.
As for lawyers' fees, I must leave that to the conscience 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, a term fitter for kings than judges, for every order that a mean lawyer might as well despatch. 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, I will hear the bar until eleven, or half an hour after ten at the least. And since I am upon the point whom I will hear, your lordships will give me leave to tell yoc a fancy. It falleth out, that there be three of ui the king's servants in great places, that are lawyers by descent, Mr. Attorney son of a judge, Mr. Solicitor 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 commandment; it being my comfort that I serve such a master, that I shall need to be but a conduit only for the conveying 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 optimae legi;" which is true in his Majesty. But 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.
THE SPEECH WHICH WAS USED
LORD KEEPER OF THE GREAT SEAL,
IN THE STAR-CHAMBER BEFORE THE SUMMER CIRCUITS, THE KING BEING THEN IN SCOTLAND, 1617.
The king, by his perfect declaration published in this place concerning judges and justices, hath made the speech of his chancellor, accustomed be
fore 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 showeth, that as 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 king6.;
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 dishonour 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 therefore 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, "nihil inde expectantes;" looking for nothing, neither praise nor profit.
Yet my meaning is not, when I wish you to take 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 unequal; 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 j 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 j but yet endeavour 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 the great and strait charge that the king hath given me as keeper of his seal for the governing of the chancery without tumour or excess.
Again, e re nata, 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 things.
In the high 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.
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 plantation of Ireland, he hath given in (hem punctual and resolute directions. All this is in absence.
I give but a few instances of a public nature; the secrets of council I may not enter into, though his despatches into France, Spain, and the Low Countries, now in his absence, are also notorious as to the outward sending. So that I must conclude that his Majesty 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 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 pence, obedience, and contentment in the country; though the best governments be always like the fairest crystals, 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 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 novelists, 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 punishing; and commonly spiritual diseases are not cured but by spiritual remedies.
Next, let me commend unto you the repressing, as much as may be, of faction in the countries, of which ensue infinite inconveniences,, 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 country 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 being 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 or commission into the
government of Scotland, as that glorious king, Edward the third, did plant this commission 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.
THE SPEECH USED
LOBD KEEPER OF THE GREAT SEAL OF ESGLAKD,
TO SIR WILLIAM JONES,
UPON HIS CALLING TO BE LORD CHIEF JUSTICE OF IRELAND, 1617.
Sir William Jones,
The king's most excellent Majesty being duly informed 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 your Serjeant'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 examples, and not the long by precepts. •
The place that you shall 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; the gravity, temper, and direction of Sir James Lea; the quickness, industry, cind despatch of Sir Humphry Winch; the care and affection to the commonwealth, and the prudent and politic administration of Sir John Denham, and you shall need no other lessons. They were all Lincoln's-Inn men as you are, you have known them as well in their beginnings, as in their advancement.
But because you are to be there not only chief justice, 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 JiHix Europce, which hath been reclaimed from desolation, and a desert, 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 governor, and a good chief justice, as if it were in England, 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 revenue, 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 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 constantly, 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 ope thing, which was this. Yon may take exceeding great comfort, that you shall serve with such a deputy; one that, I think, is a
man ordained 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.
THE LORD KEEPER'S SPEECH,
TO SIR JOHN DENHAM,
WHEN HE WAS CALLED TO BE ONE OF THE BARONS OF THE EXCHEQUER, IN 1617.
Sir John Denham,
The king, of his grace and favour, hath made choice of you to be one of the barons of the exchequer, 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, showed yourself a good judge between party and party, so you have showed yourself a good administer of the revenue, both when you were chief baron, 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 admonitions, but not vulgar or discursive, but apt for the times, and in few words, for they are best remembered.
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.
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 j
for these are but dalliances of law and ornaments: but it was the grave records and precedents that grounded the judgment of that cause; and therefore I would have you both guide and arm yourself with them against these vapours and fumes of law, which are extracted out of men's inventions and conceits.
The third advice I will give you hath a large extent; it is, that you do your endeavour in your place so to manage the king's justice and revenue, as the king may have most profit, and the subject less vexation: for when there is much vexation to the subject, and little benefit to the king, then the exchequer is sick; and when there is much benefit to the king, with less trouble and vexation to the subject, then the exchequer 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 overeasily discharged, or over-indulgently 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 new land upon concealments, and that which he hath already 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 estate of the exchequer : 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. 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 I deliver you your patent.
HIS LORDSHIP'S SPEECH, IN THE COMMON-PLEAS,
TO JUSTICE HUTTON,
WHEN HE WAS CALLED TO BE ONE OF THE JUDGES OF THE COMMON-PLEAS.
Mr. Serjeant Button,
The king's most excellent Majesty, being duly informed of your learning, integrity, discretion, experience, 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 centre and heart of the laws of this realm: here the subject hath his assurance by fines and recoveries; here he hath his fixed and invariable remedies by praecipes 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 outlawry; if men will not answer law in this centre of law, they shall be cast out. And therefore it is proper for you, by all means, with your wisdom and fortitude, 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 yourself, that the twelve judges of the realm are as the twelve lions under Solomon's throne: they must show 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, not out of your brain.
2. That you should mix well the freedom of your own opinion with the reverence of the opinion of your fellows.
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 carriage.
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 impertinent flying out to show 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 of great ones or small ones.
10. That you contain the jurisdiction of the court within the ancient merestones, without removing the mark.
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 yon, the shorter shall my speech be to you: knowing that you come so furnished and prepared with these good virtues, as whatsoever I shall sav cannot be new unto you; and therefore I will say no more unto you at this time, but deliver you your patent.
FOR THE BETTER AND MORE REGULAR ADMINISTRATION OF JUSTICE IN THE CHANCERY,
Decrees ^° decree "hall be reversed, altered, error in law, appearing in the body of the decree,
or explained, being once under the without farther examination of matters in fact, or
great seal, but upon bill of review: and no bill of some new matter which hath risen in time after the
review shall be admitted, except it contain either decree, and not any new proof which might have