66 she had lain ten days and nights upon the carpet, leaning on cushions, and her end was visibly approaching, the Lord Keeper, accompanied by the Lord Admiral and the Secretary of State, presented himself before her, concluding that she had no longer any motive for reserve upon the subject which she had made so mysterious during the whole course of her reign, and that her recognition of the true heir to the throne would strengthen his title with the multitude. Kneeling down, he said they had come to know her will with regard to her successor." She answered with a faint voice that, as she had held a regal sceptre, she desired no other than a royal successor.” Cecil requesting that she would graciously condescend to explain herself more particularly, she subjoined "that she would have a King to succeed her, and who should that be but her nearest kinsman, the King of Scots ?"* They then withdrew, leaving the Archbishop of Canterbury with her to administer to her the consolations of religion. She expired at three in the morning of the 24th of March, and by six the Lord Keeper joined the other ministers in London, and concurred in the order for the proclamation of King James. It will now be proper to take a brief general retrospect of the proceedings in Chancery during this reign. The equitable jurisdiction of the Court was greatly and beneficially extended, and by the appointment of men to preside in it who had been regularly bred to the profession of the law, it acquired the confidence and good will of the public. We no more have bills in the House of Commons for restraining it, and the attempts to prevent injunctions against fraudulent judgments in the courts of common law originated from the jealousy of the common-law Judges, and their regard for their own power and profit. The statute 27 Ed. III. st. 1. c. 1., forbidding an application to other jurisdictions to impeach the execution of judgments in the King's Courts, which was unfairly resorted to in this dispute, had been passed merely with a view to prevent appeals to Rome. In the 31 Elizabeth there was an indictment on this statute against a barrister for signing a bill filed in the Court of Chancery, praying an injunction against execution on a common-law judgment; but it was not brought to trial, and a truce was established, which was observed till the famous battle between Lord Coke and Lord Ellesmere. The process of the Court to enforce appearance, and the performance of decrees, was materially strengthened and improved by the introduction of the commission of rebellion and of sequestra * A somewhat different account of this conference is given by a Maid of Honour who was present; but, even according to her, the designation of James must be considered genuine, and not the invention of the ministers; for if, on the mention of the name of Lord Beauchamp, the representative of the house of Suffolk, claiming under the will of Henry VIII., she exclaimed, "I will have no rascal's son in my seat," this was a clear expression of preference for the Scottish line.— Lady Southwell's MS. She is partly corroborated by Camden, who thus translates the expression "Nolim vilis mihi succedat."-Cam. Eliz. vol. ii. 285. † Crompton on Courts, 57. 58. tions, whereby, substantially, property and person were rendered subject to equitable as well as legal execution.* شمیت Full power was now assumed of granting costs in all cases, which gradually superseded the practice introduced by 17 Richard II. c. 6. and 15 Henry VI. c. 4., of requiring, before issuing the subpoena, security to pay damges to the plaintiff, if the suggestions of the bill should turn out to be false; and the scruple was at last got over of allowing costs to the defendant on a demurrer to the bill for want of equity, although the suggestions contained in it were thereby admitted to be true. The statute 5 Eliz. c. 18., respecting the office of Lord Keeper, prevented the recurrence to the ancient practice of having the aid of a deputy, under the name of Keeper of the Seal or Vice-chancellor; but the Master of the Rolls, from being the first clerk in the Chancery, was now described in books of authority as Assistant to the Chancellor in matters of common law, with authority, in his absence, to hear causes and make order." The practice was likewise established, which continued down to the time of Lord Thurlow, of the Chancellor deputing a puisne Judge to sit for him in case of sickness or political avocations. Commonlaw Judges were likewise called in as assessors in cases of difficulty. Questions of law arising incidentally were sent to be determined by a court of common law, and if the certificate returned was not satisfactory to the Chancellor, he sent the question for the consideration of all the twelve Judges in the Exchequer Chamber. The Clerks, or Masters, in Chancery being freed from all trouble in superintending the issuing of writs, had abundant leisure, and were of great service in working out the details of decretal orders. But the complaint already began, that the Equity Judge, to save himself trouble, and to acquire a character for despatch which he did not merit, instead of patiently examining the facts and the equity of the case, as he might and ought to have done himself, hastily referred every thing to a Master, who was sometimes found listless or incompetent: and if (as it might happen) he possessed more knowledge as well as industry than his superior, still the suitor was vexed with undue delay and expense.§ * Sequestration was long resisted by the common-law Judges, who said, if a sequestrator were killed in an attempt to enter a house, instead of murder, it would be justifiable homicide, se defendendo.-See 5 Rene, H. of L, 160. † Crompton tit. " Chancery." ‡ Cary, 46. § In a MS. treatise on the Court of Chancery, written by the famous lawyer and antiquary, Sir Robert Cotton, which I have perused by the kindness of my friend Mr. C. P. Cooper, to whom, with many other valuable documents of the same description, it now belongs, I find the following passage, showing the recent origin of the practice of reference to the Master: "Forasmuch as the Masters of the Chancery at this day are grave and wise men though many of them of another profession, and are not employed in framing of writs as at the first, yet they do sit upon the bench with the Chancellor; and he taking advantages of their opportunities and leisure (many times of late) refers Bills of discovery and bills to perpetuate testimony became common. The old practice of requiring sureties of the peace in Chancery was still preserved; and we find one instance of a criminal jurisdiction being directly assumed upon a bill filed to punish a party for corrupt perjury, where there was not sufficient evidence to convict him at common law. He demurred, but was compelled to answer.* The practice of granting protections, on the ground that the party was in the service of the Crown, still continued.† There being a great clamour in the time of Lord Keeper Puckering against excessive fees, he undertook to reform them with the assistance of Egerton, then Master of the Rolls; and on his sudden decease, Egerton, become Lord Keeper, went on with the inquiry, and corrected some abuses; but he was effectually thwarted by a combination of the Masters‡; and when he was extending his reform to the Star Chamber, he received a remonstrance from Francis Bacon, who had a grant in reversion of the registrarship of that Court.§ Although there was nothing approaching to an exclusive bar in Chancery, there were particular barristers who acquired reputation by their cunning in drawing bills. One of these being found too subtle, an order was made by Lord Keeper Egerton that no bills signed by him should be put upon the file.|| Sometimes the whole bar refused to be employed against a great man; whereupon the Court assigned counsel to the side, and compelled them to act.¶ Towards the end of this reign the business of the Court of Chancery was increased by a decision of the Court of Queen's Bench, which virtually abolished the Court of Requests. This was an inferior Court of Equity, which had taken its origin in the reign of Edward III. or Richard II., and was held before the Lord Privy Seal for the suits of poor men, or of the King's servants ordinarily attendant on his person. The Lord Privy Seal sitting there was assisted by the Masters of the Requests, who acted like Masters in Chancery,—and it had attracted much practice, when the Judges decided that it had no contentious jurisdic matters which have depended in that Court, and are ready for hearing, unto their examinations, which, upon their certificate, are decreed accordingly. But it is a true saying, that new meats and old laws are best for use. And I know not how, but the people do much complain of the new employment of them." He then proceeds invidiously to praise the publicity, regularity, and despatch, which characterise the proceedings in the courts of common law. * Woodcock v. Woodcock, 19 Eliz.-Cary, 90. † Reyntz v. Pelserbocio. Reg. Lib. b 4 & 5 Eliz. f. 124. 214. See a petition against altering fees signed by nine Masters.-Egerton Papers, § Ib, 272. 426. 427. || Cary, 38. T ¶ "27 April, 1562. Brand v. Hyldrache. Forasmuch as it is informed that because the matter in question toucheth Mr. Wray of Lincoln's Inn, the plaintiff cannot get any to be of counsel with him, therefore Mr Bell and Mr Manwood are appointed by this Court to be of counsel with the said plaintiff."-Lib. Reg. 3 & 4 Eliz. f. 302, tion.* An order was afterwards made, allowing plaintiffs and defendants to sue in the Court of Chancery in formâ pauperis. By statute 43 Eliz. c. 4. facilities were given to the Court in investigating abuses in charities. The most important cases arose out of trusts and executory contracts respecting land. However, looking to the Chancery cases in print down to this time, it is wonderful how few and trifling and jejune they appear, when we consider that Plowden's Commentaries, Dyer's Reports, and Sir Edward Coke's Reports were already published, containing masterly judicial reasoning, and satisfactorily settling the most important questions which have ever arisen in the history of the common law of England. CHAPTER XLIX. CONTINUATION OF THE LIFE OF LORD ELLESMERE FROM THE ACCESSION OF JAMES I. EGERTON having joined in proclaiming King James, waited anxiously to see whether he was to be continued in his office by the new Sovereign. Elizabeth died at Richmond on a Thursday morning, and, by what then [MARCH 24, 1603.] seemed the miraculously swift journey of Sir Robert Carey, the news was brought to Holyrood House on the following Saturday night; but James waited for the arrival of the messengers despatched by the Council before he made it public, or would begin to exercise the authority of King of England. He soon declared his intention to continue in office the wise councillors of his predecessor; and by a warrant under his sign manual, dated the 5th of April, he directed that Elizabeth's Great Seal should be used as the Great Seal of England, and that it should remain in the custody of the former Lord Keeper.† Egerton's joy was a little damped by hearing at the same time that he had been represented to the King by some enemy as "haughty, insolent, and proud;" and he immediately sent off his son with a letter to Sir T. Chaloner, who was acting under Cecil, and had gained the King's confidence, to justify himself, He there says "Yf I have bene taxed of hautenes, insolencye, or pryde in my place (as I partly hear relations), I hope it is by theym that have not learned to speake well; and against this poyson I have two * 41 Eliz. Palgr. 79. 99. 3 Bl. Com. 5. It was finally abolished by 16 Car. 1. c. 10. The old "Court of Requests," which Hume refers to as a place of exercise while debates are going on in parliament, afterwards became the chamber of the Peers, and is now that of the Commons. † Cl. R. 1 Jac. 1. precious antidotes: 1. The religious wyssdome, royall justice, and princelye virtues of the King my soveraigne, which wyll soon disperse such foggye mystes. 2. The innocencye and cleerness of myne owne conscience, which is more than mille testes. "I must confesse that in the place of justice which I have helde I was never so servile as to regarde parasites, calumniators, and sycophantes, but always contemned them, and therefore have often fealte the malice of theyr thoughtes, and the venym of their tonges. I have learned no waye but the kinge's highe waye, and travelling in that, the better to guyde me, I have fastened myne eyes on this marke, Judicem, nec de obtinendo jure orari oportet, nec de injuria exorari. Yf this have offended any I will never excuse yt; for I take yt to be incident to the place by severe examynyng of manie men's actions to offende many, and so to be hatefull to many, but those alwayes of the worst sorte, agaynst whom I wyll say no more, but, with Ecclesiasticus, Beatus qui tutus est a lingua nequam." He likewise wrote a letter to Lord Henry Howard, to be laid before the King, in which he makes an effort at flattery. “I have readde of Halcyonis dies, and Lætus Introitus, and Sol occubuit, nox nulla secuta: we see and feele the effectes of that which they fayned and imagined. Wee had heavynes in the night. but joy in the mornying. Yt is the great work of God: to hym onlye is due the glorye and prayse for it; and we are all bounden to yelde to hym our contynuall prayers, prayse, and thankes."* These letters being received when the King had reached York, on his way to the south, Sir Thomas Chaloner wrote him back, "As for the objection of haughtines, which, by mistakinge of the relator, hath been imputed unto your Lp., I must cleare the Kinge's Majesty of any suspition in your honor. For the woords hee used weer only bare questions, as being rather desirous to bee informed of the quality and affections of his subjects and principal counseylores, than any note or prejudicate opinion against your Lp., or any others." But he was much more relieved by Lord Henry Howard. "Your Lo. letter was so judiciously and sweetely written, as although on two sundrie tymes befor, in private discourse, I had performed the parte of an honest man, yet I could not forbear to present it to the sacred hand of his Majesty, who not onely redde it over twice with exceeding delight, witnessed by his owne mouth to all in his chambers, but besid, commanded me to give you verie greate thanks for the strong conceit you holde of him, and to let you knowe that he did hope that longer acquaintance would not make you like him worse, for he was pleased with persones of your partes and quality."+ Thus reassured, he calmly expected James's approach; and on the 3d of May he met him at Broxbourne, in Hertfordshire. Having then surrendered the Great Seal into his Majesty's hands, it was * Eg. Pap. 361. † Eg. Pap. 365. |