Reports. But the strength of the case did not lie there. The "expatiations" in his Reports were but collateral and confirmatory evidences-the flash and outbreak of the spirit of opposition in which he had been acting ever since he became a Judge. The solid ground of complaint against him was that he had habitually used the authority of his office to interfere with the action of the government in its other departments. When the best horse in the team cannot be persuaded to pull with the others, the coach will go better without him. Those who sympathize most entirely with Coke in all his conflicts will hardly maintain that in the way the government was going he was not a danger and a hindrance. And whatever we may think now, there is no doubt that the King and his advisers thought that the way they were going was the right one. The true justification of the proceeding from their point of view is contained in another paper, entitled "Innovations introduced into the Laws and Government: " of which there is a copy at Lambeth. It bears no date, but appears to have been drawn up after the promulgation of the King's decree in the Præmunire case,—therefore after the 18th of July. The heads are set out on one side of the page, mostly in the hand of a secretary. The comments are inserted in the halfmargin opposite, in Bacon's hand. The title also, and the numbers (which are directions for setting out the heads in a different order) are Bacon's. There can be no doubt therefore as to the authenticity of the paper, and not much doubt that it was a draft of that which went to the King. The statements in it were, I suppose, matters of notoriety: the points in dispute having been discussed at Council or in the Star Chamber, or embodied in orders of the Court. INNOVATIONS INTRODUCED INTO THE LAWS AND GOVERNMENT.1 1. The Ecclesiastical Commission. 2. Against the Provincial Councils. In this he prevailed, and the commission was pared, and namely the point of alimony left out, whereby wives are left wholly to the tyranny of their husbands. This point, and some others, may require a review, and is fit to be restored to the commission. In this he prevailed in such sort, as the Presidents are continually suitors for the enlargement of the instructions, sometimes in one point, sometimes in another, 1 Gibson Papers, vol. viii. f. 243. 3. Against the Starchamber for levying damages.1 4. Against the Admiralty. 5. Against the Court 8. Præmunire for cery. and the jurisdictions grow into contempt, and more would, if the Lord Chancellor did not strengthen them by injunctions, where they exceed not their instructions. In this he was overruled by the sentence of the court; but he bent all his strength and wits to have prevailed; and so did the other Judges by long and laborious arguments: and if they had prevailed, the authority of the court had been overthrown. But the plurality of the court took more regard to their own precedents, than to the Judges' opinion. In this he prevaileth, for prohibitions fly continually; and many times are cause of long suits, to the discontent of foreign ambassadors, and the King's dishonour and trouble by their remonstrances. This is new, and would be forthwith restrained, and the others settled. In this he prevaileth; and this but lately brought in question. In this his Majesty hath made an establishment: and he hath not prevailed, but made a great noise and trouble. This his Majesty hath also established,2 being a strange attempt to make the Chancellor sit under a hatchet, instead of the King's arms. In Trin. Term 10 Jac. I. Sir Thomas and Richard Brereton and others had been fined £3000 for fraud with regard to a will, and committed to the Fleet for not paying it. The question was whether the Star-Chamber had power to levy the damages and costs upon their lands and goods. A day was appointed for hearing precedents and reasons for the jurisdiction of the Court, which Bacon argued for.-See Harl. MSS. 1330, f. 16. See Decree of July 18, 1616. Vol. V. p. 385. 9. Disputed in the Common Pleas, whether that court may grant a prohibition to stay suits in the Chancery, and time given to search for precedents. 10. Against the new boroughs in Ireland. 11. Against the writs Dom. Rege inconsulto.1 contri 12. Against 13. Peacham's case.3 This was but a bravery, and dieth of itself, especially the authority of the Chancery by his Majesty's late proceedings being so well established. This in good time was overruled by the voice of eight judges of ten, after they had heard your attorney. And had it prevailed, it had overthrown the parliament of Ireland, which would have been imputed to a fear in this state to have proceeded, and so his Majesty's authority and reputation lost in that kingdom. This is yet sub judice: but if it should prevail, it maketh the Judges absolute over all patents of the King's, be they of power and profit, contrary to the ancient and ever continued law of the crown: which doth call those causes before the King himself, as he is represented in Chancery. In this he prevailed, and gave opinion, that the King by his great seal could not so much as move any his subjects for benevolence. But this he retracted after in the Star-chamber; but it marred the benevolence in the mean time. In this, for as much as in him was, and in the court of King's Bench, he prevailed, though it was holpen by the good service of others. But the opinion which he then held amounted in effect to this, that no words of scandal or de 1 See Act of Council, 6 June, 1616. Vol. V. p. 357. 2 See Vol. V. p. 83. 3 Ibid. p. 120. 14. Owen's case. 15. The value of benefices not to be according to the tax in the King's book of taxes. 16. Suits for legacies ought to be in their proper dioceses, and not in the Prerogative Court; although the will be proved in the Prerogative Court upon bona notabilia in several dioceses, commendams, etc. 17. Homicide beyond the seas may be tried and judged in England, by a new construction of the Statute 13, H. 4. famation, importing that the King was utterly unable or unworthy to govern, were treason, except they disabled his title, etc. In this we prevailed with him to give opinion it was treason: but then it was upon a conceit of his own, that was no less dangerous than if he had given his opinion against the King: for he proclaimed the King excommunicate in respect of the anniversary bulls of Cana Domini, which was to expose his person to the fury of any jesuited conspirator.1 By this the intent of the statute of 21 Henry VIII. is frustrated; for there is no benefice of so small an improved value as 8. by that kind of rating. For this the Judges may be assembled in the exchequer chamber for a conference. The practice hath gone against this. And it is fit the suit be where the probate is. And this served but to put a pique between the Archbishops' courts and the Bishops' courts. This may be again propounded upon a conference of the Judges. This was a mere fancy of his own, by mistaking the construction of a statute never thought of before; and may be thought a device to bring in a constable of England. But this hath since reverted upon him. 1 See Vol. V. p. 119.. These then were the grounds upon which it was urged that Coke was not the right man for his present place. According to modern ideas, his defects both of temper and judgment, as well in the getting up as in the trial of criminal cases, would have formed a better reason; but they would have not been thought so then. Such as they were, the King made up his mind that they were sufficient, and on the 10th of November declared to the Council his resolution to remove him from the Bench.1 Of what he said on the occasion I have not met with any account full enough to explain the precise grounds on which he put it; but all reports agree that he used him with respect. He had already, on hearing that he had been treated with discourtesy by "the Lord Chancellor's men," sent word "that he would have him well used;" and it had then been hoped by his admirers that things were taking a turn in his favour. "The Attorney" (says Chamberlain, 26 October) "is thought to be come about, as well for that he ever used him with more respect than the rest, as for divers speeches he gives out in his favour,-as that a man of his learning and parts is not every day found nor so soon made as marred." But whatever his faults were, they were not of a kind to justify disrespectful treatment from anybody; and the King when he informed the Council of his resolution to remove him, "yet gave him," says Chamberlain, "this character, that he thought him no way corrupt, but a good justicer; with so many other good words, as if he meant to hang him with a silken halter." It is rather strange that more curiosity should not have been felt as to the reasons which the King gave for such a measure. But this is all that Chamberlain knew, or all that he cared to tell Carleton, about his speech; nor is there any fuller report, so far as I know, in existence. There was found however among Bacon's papers a rough draft, entitled "Remembrances of his Majesty's declarative touching my Lord Coke;" which-whether it be a note of what the King said, or (as I rather suppose) a sketch of what Bacon wished him to say-may be probably taken as containing, so far as it goes, the substantial grounds of the proceeding; which seems to me perfectly intelligible without supposing any mystery behind. The paper is in Bacon's own hand, and what we have of it-for there is but one sheet and I think there must have been more-runs thus. REMEMBRANCES OF HIS MAJESTY'S DECLARATIVE TOUCHING THE LORD COKE.2 That although the discharging and removing of his Majesty's 1 Camden. Annalium apparatus. 2 Gibson Papers, vol. viii. f. 254. Draft in Bacon's hand. No date or docket. |