Parliament, whether with or without consideration of vested rights. When asking time to plead, he described the original question in the cause as affecting one of the "four columns of the prerogative,”—viz. that concerning matters judicial,"which he should ever maintain according to his place:" and when the time for pleading came he and the solicitor-general appeared with a formal message from the King and presented the writ de non procedendo. He endeavoured to stop any argument on the writ, insisting it was peremptory and not to be questioned: this was overruled, and the matter was argued on the other side, and for the Crown by the solicitor-general, in Trin. Term; and finally Bacon was heard in Hil. Term, Jan. 25th. The reporters say both sides were very confident of success: Bacon thought he had produced a great effect; but nevertheless, "because the times were as they were," recommended the King, who had interfered once or twice with the cause before, to reiterate his command that the Chief Justice, having heard the attorney-general, should forbear further proceeding till he had communicated with his Majesty. It will be seen that in his argument he treats the writ as concerning rather the dignity than the substantial power of the Crown: Mr. Brownlow would have his cause heard on the Common Law side of Chancery, instead of in the King's Bench, and no doubt would have justice done to him. But in his letter to the King he explains that the chief importance of the proceedings was in bringing any case that might concern the King, in profit or in power, from the ordinary benches to the Chancellor, who (as the King knew) " is ever a principal counsellor and instrument of monarchy, of immediate dependence on the king."

The Judges did not dispute, nor could they, that there were abundant precedents of this writ. The only question, had they proceeded to judgment, would have been whether they could see their way to have fixed some reasonable and constitutional bounds, definable by law, within which it was to be allowed. Bacon, it will be observed, had at first contended that the writ was to be obeyed without any opportunity of discussion in other words that the mandatory part alone was to be looked at. When beaten from this, he here argues that it was only necessary that it should assert that the King had a right, and should show that, if it existed, the case touched it; the Chancellor being thereupon made the judge whether such a

right should be recognised-thus making him in fact the sole and unchecked expositor of the constitution in all such points as could in any way affect private rights.

No decision was given. The case was compromised, at whose instigation we are not informed; but the substance of the arrangement is mentioned by the reporters, and is most authentically expressed in the Warrant Book, in the S. P. O.

It recites the purport of the patent to Michell for making the writs of Supersedeas, "the making whereof the Prothonotaries and Exigenters pretended to belong to them only, and commenced a suit in the K. B. which yet dependeth undecided;" and states "that they nevertheless by humble petition make a free and voluntary offer to cease their suit, and consent that the said office shall be established and enjoyed by the said patentee; humbly beseeching We would be pleased to make some declaration of our royal determination, under our privy seal, to our Judges, that we will not admit any such suits hereafter that may tend to the granting away, abatement, or diminution of any of the profits, or preeminences which the Judges, officers, or clerks of the said Court do now hold and enjoy (other than the said place and office aforesaid). Which their petition we cannot but, according to our princely inclination, take in good part, as proceeding from men that do well discern what befits them to do, and what they may expect upon an offer so full of duty and good manners." And the King proceeds to make the declaration accordingly.2

So that, in the end, Murray and his friend kept their profits; the King forbad himself, under penalty of breaking his recorded faith, the exercise of his alleged prerogative of ordering the course of the Common Pleas offices; and his claim to issue his writ de non procedendo Rege inconsulto, unquestionable in the Courts of Law, remained where it had been, or was made less tenable for the future by not being in this case acknowledged.

1 Undated, and referred in the Calendar to Sept. 1611; I presume because of its obvious connection with the Docket of that date already cited. I do not understand how the documents came to be transcribed into this Warrant Book in the confused order in which they stand.

2 The note of a grant to Michell of the office of keeping the seal and signing of writs in the Common Pleas, during pleasure, dated April 19th, 1616, appears in the Grant Book; which I suppose to mean the same office as before, regranted.

THE ARGUMENT

OF

SIR FRANCIS BACON, KNIGHT,

ATTORNEY-GENERAL IN THE KING'S BENCH,

IN THE CASE DE REGE INCONSULTO,

BETWEEN BROWNLOW AND MICHELL.

THIS case hath been well handled on the other side, if that may be said to be handled which, in the chief points, is scarcely touched neither do I impute that to Mr. Croke, that argued; who I know is learned, and hath taken a great deal of pains; but ex nihilo nihil fit; the fault was in the stuff, not in the workman: yet this I must say, that it is a strange form of proof to put a number of cases where this writ hath been obeyed, which is directly against you; and then to feign to yourself what was the reason why it was obeyed, and to go on and imagine that if it had been thus and thus it would not have been obeyed. Sir, the story is good; but your poetry why it was done, and what should have been done if the case had differed, therein you do but please yourself; it will never move the Court at all.

Now I shall answer you so fully, as neither reason nor authority, which you have made and alledged, shall pass. But first I will confirm the truth of that I hold; and incidentally in the proper place confute and encounter every objection that hath been or can be made; for, rectum est judex sui et obliqui. My lords, this writ de non procedendo ad assisam, rege inconsulto, is in its nature a mere-stone of the king's inheritance, and as a hedge about his vineyard; and therefore it is good to

The antiquity and worth of the writ.

take the oracle of the wise man against alterations, qui volvit lapidem revertet super eum ; et qui tollit sepem eum mordebit serpens; he that removes a stone, it will turn upon him and crush him ; and he that takes away an hedge, a serpent bred in that hedge shall bite him. But I little doubt by the help of this Court, that this stone shall remain in the ancient term and bound, and that the hedge and fence shall continue in full repair.

But as the Court said at the first truly, that this writ is not new, so I say again that the disallowance of this writ should be new; for I will maintain this universal negative, that since the law was law, this writ was never disallowed, but in the excepted case of an act of parliament. Evermore it hath closed, not the judges mouths, but that sometimes they have spoken in it, but ever their hands, that they never proceeded till they had leave; therefore if that should be done which was never done, it must be either in

The King's Counsel, the Court, or, the matter itself.

For the King's Counsel, we are the king's poor servants; but yet we shall be able so to carry the king's business, as it shall not die in our hands.

For the Court, it is our strength; they are sworn to the King's rights and regalities, and if we should fail they (er officio) ought to supply; much more will they aid us, we failing not. The judges of the land, as they are the principal instruments of obedience towards the king in others, so have they ever been principal examples of obedience to the king in themselves. The twelve judges may be compared to the twelve lions supporting Solomon's throne; in that kind is their stoutness to be shown, as it hath been now of late in a great business to their great honour; and therefore in the Court I am sure the let will not be.

It rests then only that it must be in the matter; and this now shall be my labour to make plain, that in the matter it cannot be; wherein, my lord and the rest, if I have thought no pains too much, I beseech you think no time too long.

The proofs that I will deduce shall be from four causes of Four causes. this writ, for they of all other places of argument are the strongest, like to a fortification from an higher ground: for all other places, ab effectis, ab adjunctis, a simili, &c. they are but from flats and even grounds; but the argument from the causes are à prænotioribus, as from the chiefest commanding ground.

I will therefore open unto you, first, the end of this writ, the efficient of it, the matter of it, and the form of it; and out of all these I will prove most clearly the present case. Which parts before I deduce, I will give you at the first entrance a form or abstract of them all four, that, forethinking what you shall hear, the proof may strike upon your minds as prepared.

The end of this matter is no other than the justest thing in 1. The end. the world, to prevent and provide that the king's rights be not questioned or prejudged in suits between common persons, the king not being made party, but that the impleading and discussing of the same be in the proper suit, court, or course.

efficient.

The efficient of this writ is that same primogenita pars legis 2. The which we call the king's prerogative: and, namely, that branch of it which is the king's prerogative in suits; for the common law of England (which is an old servant of the Crown) as it entertaineth his Majesty well and nobly wheresoever it meeteth him, in the very region and element of law, which is his judicial courts and suits, it welcometh him with a number of worthy prerogatives agreeable to monarchy, and yet agreeable to justice.

matter.

The matter of this writ is always loss and damage to the 3. The king, or possibility of loss and damage; wherein the law is provident, that it doth not so look to the present loss of the king, as it forgetteth future; nor so look to direct loss, as it forgetteth losses collateral, or by consequence; but is (as I said at first), by means of this writ, as a firm and perfect hedge or wall round about every side of the king's inheritances and rights; and therefore I say, as I have often said, that Hamptoncourt, or Windsor-castle, is not so valuable to the king as this writ.

The writ hath two parts, the certificate or recital of the king's title called in question, and the precept or mandative part; both which I will maintain to be sufficient, and warranted by law: but this part, concerning the form of the writ, induceth question of matter precedent and matter subsequent. The matter precedent is the king's title; the matter subsequent is the court's obedience; of both which also it is necessary to speak: upon which parts, when you have heard me, I hope to leave the court without all scruple, and fully fortified, not only in the matter, but in myself, that I speak not officiously in this case, or as a man that would make any thing good, but