« PreviousContinue »
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 I 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 complaint, 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 lordships may have heard a great rattle and a noise of a praemunire, and I cannot tell what. But that question 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 judgment, 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 contempt 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; 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 possessed: 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. Ballon the counsellor at law put a pasquil upon the court in nature 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 the day, because he would be sure to be before the other. I do not mean to make it a matter of a horse-race who shall be first at Westminster-hall.
Neither will I grant an injunction upon matter contained in the bill only, be it never so smooth and
specious; 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 insufficient 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 possessions, I shall maintain possessions as they were at the time of the bill exhibited; 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 contempts, 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. I know, my lords, the masters of the chancery are reverend men j 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 I 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 show cause against the report, which nevertheless I will have done modestly, and with due reverence towards them: and again, I must utterly discontinue the making of a hypothetical or conditional order; that if a master of the chancery do certify thus and thus, that then it is so ordered wilhout 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 tatitum, and give no due respect to their opinions: wherein, ray lords, preserving the dignity and majesty of the court, which I account rather increased 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 assistants from mine own, though I know well the judicature 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, touching 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, 1 understand to be wholly submitted to his Majesty's will and pleasure, after by me he shall have been informed; for if iteralum 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 officers of the revenue, the lord treasurer and chancellor of the exchequer, and with their privity; which if I 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 hatli not of course passed at the signet by a fac simile, but needeth science, my duty shall be to examine whether it hath passed by the learned counsel and had their docket; which is that his Majesty reads, and 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:" I 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 lo 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 my 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-obslante; or of piracy, or of praemunire, or of fines, or exemplary punishment in the star-chamber, or of some other natures; I shall, by the grace of God, stay them until his Majesty, who is the fountain of 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, &c. 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 precepts concerning speedy justice, it rests much upon myself, and much upon others; yet so, ns my procuration may give some remedy and order to it. For myself, I am resolved that my decree shall come speedily, if not instantly, after the hearing, and my signed decree speedily 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 breviates are 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 whosoever 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 father's ordinary word, "You must give me time." But yet I find, when such breviates were taken, the cause was sometimes forgotten a term or two, and then set down for a new hearing, three or four terms after. And in the mean time the subject's pulsebeats swift, though the chancery pace be slow. Of which kind of intermission I see no use, and therefore I will promise regularly to pronounce 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 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 whit the worse, I 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 despatch tum utterly to delay at length: for the manner of it is to take the tale 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, a hundred orders in a cause, 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.