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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
been used when the decree was made: nevertheless 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 licence of the court, and not otherwise.
2. In case of miscasting, being a matter demonstrative, a decree may be explained, and reconciled by an order without a bill of review; not understanding, by miscasting, any pretended misrating or misvaluing, 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 extinguished! the parties' right at the common law, as making of assurance or release, acknowledging satisfaction, 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 recognisances with sureties for satisfying of costs and damages for the delay, if it be found against them.
6. No decrees shall be made, upon pretence of equity, against the express provision of an act of parliament: nevertheless if the construction of such act of parliament hath for a time gone one way in general opinion and reputation, and after by a later judgment 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 bread) 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 licence of the lord chancellor; but no close imprisonment is to be, but by express order for wilful and extraordinary contempts and disobedience, as hath been used.
8. In case of enormous and obstinate disobedience in breach of a decree, an injunction is to be granted nub poena of a sum; and upon affidavit, or other sufficient proof, of persisting in contempt, fines are to be pronounced by the lord chancellor in open court, and the same to be estreated down into the lianaper, 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 commission of rebellion; and then a Serjeant at arms by special warrant: and in case the Serjeant at arms cannot find him, or be resisted; or upon the coming in of the party, and his commitment, if he persist in disobedience, an injunction is to be granted for the possession; and in case also that l>e disobeyed, then a commission to the sheriff to put him into possession.
10. Where the party is committed for the breach of a decree, he is not 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 he may be enlarged by order of the court upon recognisance, with sureties to be put in for the performance thereof de futuro, otherwise not.
11. Where causes come to a hearing in court, no decree bindelh any person who was no't served with process ad audiendum judicium, according to the course of the court, or did appear gratis in person in court.
12. No decree bindeth any that cometh in bona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill nor the order: but where he comes in pendente 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 conveyance, the court is to give order upon the special matter according to justice.
13. Where causes are dismissed upon
. „ , . . ■ Dismissions,
full hearing, and the dismission signed
by the lord chancellor, such causes shall not be retained again, nor new bill exhibited, except it be upon new matter, like to the case of the bill of review.
14. In case of all other dismissions, which are not upon 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 defeating 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 rewards to make marriages; or for bargains at play and 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, if they be the sole effect of the bill; and if there be no special circumstances to move the court to allow their proceedings, and all suits under the value of ten pounds, are regularly to be dismissed. V. postea, § 58, 60.
16. Dismissions are properly to be prayed, and had, either upon hearing, or upon plea unto the bill, when the cause comes first into court; but dismissions are not to be prayed after the parties have been at charge of examination, except it be upon special cause.
17- If the plaintiff discontinue the prosecution, after all the defendants have answered, above the space of one whole term, the cause is to be dismissed of course without any motion; but after replication put in, no cause is to be dismissed without motion and order of the court.
Election or 18. Double vexation is not to be ad,u 11 mitted; but if the party sue for the same cause at the common law and in chancery, he is to have a day given to make this election where he will proceed, and in default of making such election to be dismissed.
19. Where causes are removed by
Certiorari . , . . . . .
special certiorari upon a bill containing
matter of equity, the plaintiff is, upon receipt of his writ, to put in bond to prove his suggestions within fourteen days after the receipt; which if he do not prove, then upon certificate from either of the examiners, presented to the lord chancellor, the cause shall be dismissed with costs, and a procedendo to be granted.
20. No injunction of any nature shall be granted, dissolved, or stayed upon any private petition.
21. No injunction to stay suits at the common law shall be granted upon priority of suit only, or upon surmise of the plaintiffs bill only; but upon matter confessed in the defendant's answer, or matter of record, or writing plainly appearing, or when the defendant is in contempt for not answering, or that the debt desired to be stayed appeareth to be old, and hath slept long, or the creditor or the debtor hath been dead some good time before the suit brought.
22. Where the defendant appears not, but sits an attachment; or when he doth appear, and departs without answer, and is under attachment for not answering; or when he takes oath he cannot answer without sight of evidences in the country; or where after answer he sues at common law by attorney, and absents himself beyond the sea: in these cases an injunction is to be granted for the stay of all suits at the common law, until the party answer or appear in person in court, and the court give farther order: but nevertheless upon answer put in, if there be no motion made the same term, or the next general seal after the term, to continue the injunction in regard of the insufficiency of the answer put in, or in regard of matter confessed in the answer, then the injunction to die and dissolve without any special order.
23. In the case aforesaid, where an injunction is to be awarded for stay of suits at the common law, if the like suit be in the chancery, either by scire faciax, or privilege, or English bill, then the suit is to be stayed by order of the court, as it is in other courts by injunction, for that the court cannot enjoin itself.
24. Where an injunction hath been obtained for staying of suits, and no prosecution is had for the space of three terms, the injunction is to fall of itself without farther motion.
25. Where a bill comes in after an arrest at the common law for debt, no injunction shall be granted without bringing the principal money into court, except there appear in the defendant's answer, or by sight of writings, plain matter tending to discharge the debt in equity: but if an injunction be awarded
and disobeyed, in that case no money shall be brought in, or deposited, in regard of the contempt.
26. Injunctions for possession are not to be granted before a decree, but where the possession hath continued by the space of three years, before the bill exhibited, and upon the same title; and not upon any title by lease, or otherwise determined.
27. In case where the defendant sits all the process of contempt, and cannot be found by the serjeant at arms, or resists the Serjeant, or makes rescue, a sequestration shall be granted of the land in question; and if the defendant render not himself within the year, then an injunction for the possession.
28. Injunctions against felling of timber, ploughing up of ancient pastures, or for the maintaining of enclosures or the like, shall be granted according to the circumstances of the case; but not in case where the defendant upon his answer claimeth an estate of inheritance, except it be where he i eth the land in trust, or upon some other ground.
29. No sequestration shall be granted Seo,oestrebut of lands, leases, or goods in question, and not of any other lands or goods, not contained in the suits.
30. Where a decree is made for rent to be paid out of land, or a sum of money to be levied out of the profits of land, there a sequestration of the same lands, being in the defendant's hands, may be granted.
31. Where the decrees of the provincial council, or of the court of requests, or the queen's court, are by contumacy or other means interrupted; there the court of chancery, upon a bill preferred for corroborations of the same jurisdictions, decrees, and sentences, shall give remedy.
32. Where any cause comes to a hearing, that hath been formerly decreed in any other of the king's courts at Westminster, such decree shall be first read, and then to proceed to the rest of the evidence on both sides.
33. Suits after judgment may be admitted according to the ancient custom ■>udsmelUof the chancery, and the late royal decision of his Majesty, of record, after solemn and great deliberation: but in such suits it is ordered, that bond be put in with good sureties to prove the suggestions of the bill.
34. Decrees upon suits brought after judgment shall contain no words to make void or weaken the judgment, hut shall only correct the corrupt conscience of the party, and rule him to make restitution, or perform other acts, according to the equity of the cause.
35. The registers are to be sworn,
, . , TM . , . Orders, and
as hath been latelv ordered. the office of
36. If any order shall be made, and ^registers, the court not informed of the last material order formerly made, no benefit shall be taken by such order, as granted by abuse and surreption; and to that end the registers ought duly to mention the former order in the later.
37. No order shall be explained upon any private petition but in court as they are made, and the register is to set down the orders as they were pronounced by the court, truly, at his peril, without troubling the lord chancellor, by any private attending of him, to explain his meaning; and if any explanation be desired, it is to be done by public motion, where the other party may be heard.
38. No draught of any order shall be delivered by the register to either party, without keeping n copy by him, to the end that if the order be not entered, nevertheless the court may be informed what was formerly done, and not put to new trouble and hearing; and to the end also that knowledge of orders be not kept back too long from either party, but may presently appear at the office.
39. Where a cause hath been debated upon hearing of both parties, and opinion hath been delivered by the court, and nevertheless the cause referred to treaty, the registers are not to omit the opinion of the court, in drawing of the order of reference, except the court doth specially declare that it be entered without any opinion either way; in which case nevertheless the registers are out of their short note to draw up some more full remembrance of that that passed in court, to inform the court if the cause come back and cannot be agreed.
40. The registers, upon sending of their draught nnto the counsel of the parties, are not to respect the interlineations, or alterations of the said counsel, be the said counsel never so great, farther, than to put them in remembrance of that which was truly delivered in court, and so to conceive the order, upon their oath and duty, without any farther respect.
41. The registers are to be careful in the penning and drawing up of decrees, and special matters of difficulty and weight; and therefore when they present the same to the lord chancellor, they ought to give him understanding which are such decrees of weight, that they may be read and reviewed before his lordship sign them.
42. The decrees granted at the rolls are to be presented to his lordship, with the orders whereupon they are drawn, within two or three days after every term.
43. Injunctions for possession, or for stay of suits after verdict, are to be presented to his lordship, together with the orders whereupon they go forth, that his lordship may take consideration of the order before he sign them.
44. Where any order upon the special nature of the case shall be made against any of these general rules, there the register shall plainly and expressly set down the particulars, reasons and grounds, moving the court to vary from the general use.
f 45. No reference upon a demurrer,
or question touching the jurisdiction of the court, shall be made to the masters of the chancery; but such demurrers shall be heard and ruled in court, or by the lord chancellor himself.
46. No order shall be made for the confirming or
ratifying of any report without day first given, by the space of a seven-night at the least, to speak to it in court.
47. No reference shall be made to any masters of the court, or any other commissioners to hear and determine where the cause is gone so far as to examination of witnesses, except it be in special causes of parties near in blood, or of extreme poverty, or by consent and general reference of the estate of the cause, except it be by consent of the parties to be sparingly granted.
48. No report shall be respected in court, which exceedeth the warrant of the order of reference.
49. The masters of the court are required not to certify the state of any cause, as if they would make breviate of the evidence on both sides, which doth little ease the court, but with some opinion; or otherwise, in case they think it too doubtful to give opinion, and therefore make such special certificate, the cause is to go on to a judicial hearing, without respect had to the same.
50. Matters of account, unless it be in very weighty causes, are not fit for the court, but to be prepared by reference, with this difference nevertheless, that the cause comes first to a hearing; and upon the entrance into a hearing, they may receive some direction, and be turned over to have the accounts considered, except both parties, before a hearing, do consent to a reference of the examination of the accounts, to make it more ready for a hearing.
51. The like course to be taken for the examination of court rolls, upon customs and copies, which shall not be referred to any one master, but to two masters at the least.
52. No reference to be made of the insufficiency of an answer, without showing of some particular point of the defect, and not upon surmise of the insufficiency in general.
53. Where a trust is confessed by the defendant's answer, there ncedeth no farther hearing of the cause, but a reference presently to be made upon the account, and so to go on to a hearing of the accounts.
54. In all suits where it shall appear,
. . - *T Suits in court,
upon the hearing of the cause, that the
plaintiff had not probabilem eausam litigandi, he
shall pay unto the defendant his utmost costs, to be
assessed by the court.
55. If any bill, answers, replication, m^ demur. or rejoinder, shall be found of an immo- rer», answers, derate length, both the party and the ^d*co"?es. counsel under whose hand it passeth
shall be fined.
5(i. If there be contained in any bill, answer, or other pleadings, or any interrogatory, any matter libellous or slanderous against any that is not party to the suit, or against such as are parties to the suit, upon matters impertinent, or in derogation of the settled authorities of any of his Majesty's courts; such bills, answers, pleadings, or interrogatories shall be taken off the file and suppressed, and the parties severally punished by commitment or ignominy, as shall be thought fit, for the abuse of the court; and