L. CHAP. parliament, that the former is only in force during the life of the Sovereign who issues it, whereas the latter is of perpetual obligation. He had accordingly issued (amongst others) proclamations against erecting any new buildings in or about London, and prohibiting the making of starch from wheat. The legality of these coming in question, the Judges were summoned before the Council with a view to obtain an opinion that they were binding on all the King's subjects. Coke at first evaded the question, expressed doubts, and wished to have farther time to consider. The Lord Chancellor said, "that every precedent must have a first commencement, and that he would advise the Judges to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order it according to his wisdom and the good of his subjects, for otherwise the King would be no more than the Duke of Venice." Coke answered, "True it is that every precedent hath a commencement; but where authority and precedent are wanting, there is need of great consideration before any thing of novelty is established, and to provide that this is not against the law of the land; for the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without parliament; but at this time I only desire to have a time for consideration and conference with my brothers, for deliberandum est diu quod statuendum est semel.” Being taunted with having himself decided cases in the Star Chamber upon the proclamation against building, he said, "Melius est recurrere quam male currere— - it is better to recede than to persevere in evil. Indictments conclude contra leges et statuta, but I never heard an indictment conclude contra regiam proclamationem." Time was given, and an unfavourable answer returned, which saved us from the uncertainty which, to this day, prevails in France, even under the Orleans dynasty, as to what may be done by royal ordonnance, and what can be done only by an act of the legislature." * 12 Rep. 74. L. Contro tween Lord lesmere tions." Lord Coke acquired great popularity by these proofs of spirit CHAP. and independence; and the Government, not then thinking it prudent to cashier him, he fondly conceived the notion that, on account of his reputation for learning and integrity, versy behe never could be in jeopardy. The insolence of his nature Coke and in consequence broke out against the Chancellor, who had suf- Lord Elfered some humiliation from such controversies, and who was respecting now supposed to be dying. The Chief Justice deemed this "Injune, a fit opportunity to revive the dispute between the Courts of common law and equity, - denying that the Chancellor had any right to interfere by injunction with an action in its progress, and insisting that the suing out of a subpœna in Chancery, to examine the final judgment of a court of common law, was an offence which subjected all concerned to the penalties of a premunire. He now boldly pronounced judgment in a case in which the Chancellor had granted an injunction to stay proceedings; he bailed and afterwards discharged a person who had been committed by the Lord Chancellor for breach of an injunction against suing out execution on a judgment†; and in another case‡, he got Justice Dodderidge, a puisne Judge of the King's Bench, to express a strong opinion, along with him, that the interposition of equity in actions at law was illegal. ecution on ment. Still the Chancellor continued to exercise his jurisdiction Injunction as before; and in a case where a judgment had been frau- against exdulently obtained in the Court of King's Bench, he pro- a fraudu lent judgnounced a decree to set it aside, and granted a perpetual injunction against execution. The verdict had been gained in this action by decoying away the defendant's witness, who could have proved payment of the alleged debt, and making the Judge believe that he was dying. During the trial, this witness was carried to an adjoining tavern, and a pottle of sack was ordered for him. When he had put this to his mouth, the fabricator of the trick returned to Court, and arrived there at the moment when the witness was called. The Judge was asked to wait for a few minutes, but the • Heath v. Ridley. † Courtenay v. Glanvil. L. CHAP. cunning knave swore " that delay would be vain, for that he had just left the witness in such a state, that if he were to continue in it a quarter of an hour longer, he would be a dead man." Coke (we must hope, unconscious of the deceit which had been practised,) sent for the attorney for the plaintiff at law, and recommended him to prefer an indictment for a premunire against the party who had filed the bill in Chancery, his counsel and solicitor. In another case of the same nature, he gave the like advice; with a recommendation that the Master in Chancery, who had been assessor to the Chancellor when the order was made, should be included in the indictment. Proceed ings in King's Bench. Lord Elles mere's statement. In charging the Grand Jury in Hilary term, 1616, Justice Crook, on the suggestion of the Chief Justice, for the first time that such a matter had been mentioned to any inquest, gave them in charge "to inquire of all such persons as questioned judgments at law, by bill or petition, in the Court of Chancery." I now copy a paper, indorsed in the handwriting of Lord Ellesmere; "Prooffes of the proceedinges, the last daye of Hillary Terme:" "Glenvill, informing the Lord Coke that the Jury wold not finde the bills of Premunire, the Lord Coke sent for the Jury, yet protested he knewe nothing of the matter. “The Jury, for the waightines of the case, desired further tyme and counsill, though at theire owne charge; but both denied, by the Lord Coke affirming that the case was plaine. "The Lord Coke, perceiving the Jury were inclined not to find the bills, they alleadging that they were promised better evidence then the oath of the parties, and that they were not satisfied that the judgement was dulye gotten, being obtained out of Terme, he stood upp and said to them, Have you not seen copies of the proceedinges in Chancery? Have not Allen and Glanvill made oath for the King that the same are true? Is not a party robbed a good witnes for the King against a theefe, and is there not a judgement in the case?' "At the Jurors' second comeing to the Barre, the Lord Coke said unto them, that yf they wold not find the bills, he L. wolde comitt them, and said that he wold sitt by it untill the CHAP. busines were done, and willed them to goe together againe. After which, a Tipstaff attending that Court came into the private room where the Jury were conferring touching those indictments, and told them the Lord Coke was angrye they staid soe long, and bade them feare nothing, the Lord Chancellor was dead. "At the Jurors' third comeing, the Lord Coke caused them to be called by the poll, and perceiving that 17 of the 19 were agreed to return Ignoramus, he seemed to be much offended, and then said they had been instructed and tampered withall, and asked Glanvill and Allen to prepare themselves against the next Terme, when he wold have a more sufficient Jury, and evidence given openly at the Barr. "Note, that upon the Lord Coke's threatening wordes 6 Upon a motion made there that day between Goodwin and Goldsmith concerning a judgment in that Court, the Lord Coke said openly to the lawyers, Take it for a warning, whosoever shall putt his hand to a bill in any English Court after a judgement at lawe, wee will foreclose hym for ever speaking more in this Court. I give you a faire warning to preserve you from a greater mischief. Some must be made example, and on whome it lighteth it will fall heavy. Wee must looke about us, or the common law of England wilbe overthrowne.' And said further, that the Judges shold have little to doe at the assizes by reason the light of the lawe was lyke to be obscured, and therefore, since the said case then moved was after judgment, he willed the party to preferr an indictment of præmunire. Note, the Lord Coke said the Judges of that Court Unpublished MS. in possession of Lord Francis Egerton. In the margin there is a list of twelve witnesses by whom this statement is to be proved, with an intimation that "theise thinges can be further proved by sundry other witnesses CHAP. L. Lord Ellesmere's illness. Appeal to the King. King's decision. The Chancellor meanwhile was confined to his bed, and this proceeding of Coke was considered the more reprehensible as an attempt to crush a dying rival. But Sir Francis Bacon, the Attorney General, gave information of the collision to the King, "commending the wit of a mean man, who said the other day, Well, the next term you shall have an old man come with a beesom of wormwood in his hand that will sweep away all this,' for it was Mylord's fashion, especially towards the summer, to carry a posy of wormwood.” * Accordingly the Chancellor, having unexpectedly recovered, prepared a case, which he laid before the King, concluding with the question, "Whether, upon an apparent matter of Equity which the Judges of the law by their place and oath cannot meddle with or relieve, if a judgment be once passed at common law, the subject shall perish, or that the Chancery shall relieve him? and, whether there be any statute of premunire, or other, to restrain this power in the Chancellor?" The King referred it to the Attorney and Solicitor General, the King's Serjeants, and the Attorney General of the Prince of Wales, who made a report to him, that the statutes of premunire did not apply to such a case, and that, according to reason and many precedents, the Chancellor had the jurisdiction which he had exercised, to examine the judgments of the Courts of common law, and to stay execution if he should find that they had been obtained by fraud for which the Courts of common law could not afford sufficient remedy. James, however, in deciding for the Chancellor, thought fit to rest on the plenitude of his royal prerogative, assuming that "it appertained only to his princely office to judge over all Judges, and to discern and determine such differences as at any time might arise between his several Courts touching their jurisdictions, and the same to settle and determine as he in his princely wisdom should find to stand most with his honour."† To settle the question of jurisdiction in all time to come, the royal decree was ordered to be enrolled in the 5 Bacon's Works, 416. † 1 Chanc. Rep. Append. 26. Council Book, July 26. 1616. 3 Bl. Comm. |