danger of the Judges' oaths, and begged the Judges to consider whether their conscience ought not to be more touched by their present refractory conduct, for it is part of their oath to counsel his Majesty when called; and if they will proceed first to give judgment in Court in a business whereon they are called to counsel, and will counsel him when the matter is past, it is more than a simple refusal to give him counsel." The Chief Justice fired up at this impertinence, and took exception that the counsel, whose duty it was to plead before the Judges, should dispute with them. Mr. Attorney retorted, that "he found that exception strange, for that the King's learned counsel were by oath and office, and much more where they had the King's express commandment, without fear of any man's face, to proceed or declare against any the greatest peer or subject of the kingdom, or against any body of subjects or persons, were they Judges or were they of the upper or lower House of Parliament, in case they exceed the limits of their authority, or take any thing from his Majesty's royal power or prerogative; and concluded that this challenge, in his Majesty's presence, was a wrong to their places, for which he and his fellows did appeal to his Majesty for reparation." James affirmed that “it was their duty so to do, and that he would maintain them therein." The Lord Chancellor, now plucking up courage, declared his mind plainly and clearly that "the stay by his Majesty required was not against the law, nor a breach of the Judges' oath." This question was then propounded to the Judges, "Whether if at any time, in a case depending before the Judges, his Majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the mean time, they ought not to stay accordingly?" With the exception of Lord Chief Justice Coke, they all submissively said they would, and acknowledged it to be their duty so to do. 66 Having been induced," says Hallam "by a sense of duty or through the ascendancy Coke had acquired over them, to make, a show of withstanding the Court, they behaved like cowardly rebels, who surrender at the first discharge of cannon, and prostituted their integrity and their fame through dread of losing their offices, or rather perhaps of incurring the unmerciful and ruinous penalties of the Star Chamber."* Not so the undaunted Chief Justice. He returned this memorable reply, which for firmness, moderation, simplicity, and true grandeur, is not surpassed by any recorded saying of a constant man threatened by power in the discharge of a public duty," When the case shall be, I will do that which shall be fit for a Judge to do." The recreant puisnes, from whom nothing was to be feared, were pardoned, but the Chief had shown a spirit which might be troublesome in the execution of the plan now adopted of trying to gov *Const. Hist. vol. i. p. 476. ern without a parliament, and he was to be punished. First he was suspended from the public exercise of his office, being directed, instead of sitting in Court and going the circuit, to do business at chambers, and to employ himself in correcting his reports; and soon afterwards he was superseded, and a successor was appointed in his place.* Although he soon rallied from the blow, and had his revenge by becoming leader of the opposition when it was found necessary to call a parliament, his enemies [JULY 30, 1616.] had the gratification to hear that when the supersedeas was put into his hand, he trembled and wept,-indicating that he would have been better pleased to involve himself in his robes than in his virtue.} Although the aged Ellesmere, prompted by Bacon, took a very active and cordial part in the dismissal of Coke, [Nov. 18, 1616.] he decently pretended to regret it. In a letter written by him to the king on that occasion, he says, “I know obedience is better than sacrifice; for otherwise I would have been an humble suitor to your Majesty to have been spared in all service concerning the Lord Chief Justice. I thank Go! I forget not the fifth petition, Dimitte nobis debita nostra sicut, &c. But, withal, I have learned this distinction; there is 1. Remissio vindictæ; 2. Remissio pana; 3. Remissio judicii. The two first I am past, and have freely and clearly remitted. But the last, which is of judgment and discretion, I trust I may, in Christianity and with good conscience, retain."‡ His speech on swearing in Sir Henry Montagu, Coke's successor, however, shows that he had neither remitted his desire of vengeance nor of punishment. He ungenerously took the opportunity of insulting his fallen foe, by cautioning the new Chief against the supposed faults of the one dismissed, and by an affected contrast between the latter and Montagu's grandfather, who had been Chief Justice of the Common Pleas in the reign of Elizabeth. Lord Ellesmere." This is a rare case, for you are called to a place vacant not by death or cession, but by a motion and deposing of him that held the place before you. It is dangerous in a monarchy for a man holding a high and eminent place to be ambitiously popular; take heed of it. In hearing of causes, you are to hear with patience, for patience is a great part of a Judge; better hear with patience prolixity and impertinent discourse of lawyers and advocates than rashly, for default of the lawyer, to ruin his client's cause: in the one you lose but a little time, by the other the client loseth his right, which can hardly be repaired. Remember your worthy grandfather, Sir Edward Montagu, when he sat Chief Justice in the Common Pleas : You shall not find. that he said, vauntingly, that he would make Latitats Latitare; * Bacon's Works, vi. 123, 125. 127. 130. Bacon's Works, vi. 399. ↑ Ibid. v. 433. when he did sit Chief Justice in this place, he contained himself within the word of the writ to be Chief Justice as the King called him ad placita coram nobis tenenda, but did not arrogate or aspire to the high title of Capitalis Justitia Angliæ or Capitalis Justiciarius Angliæ an office and title which Hugh de Burgh, and some few others, held in the times of the Barons' wars, and whilst the fury thereof was not well ceased.* He devised not any new construction of laws against Commissioners and Judges of sewers, nor to draw them into the danger of premunire. He never strained the statute of 27 Edward 3. c. 1. to reach the Chancery, and to bring that Court, and the ministers thereof, and the subjects that sought justice there, to be in danger of premunire, an absurd and inapt construction of that old statute. He never made "Teste Edwardo Montagu" to jostle with Teste meipso, but knew that the King's writ teste meipso was his warrant to sit in this place. He doubted not but if the King, by his writ under the Great Seal, commanded the Judges that they should not proceed Rege inconsulto, then they were dutifully to obey. He challenged not powers from this Court to correct all misdemeanours, as well extra-judicial as judicial, nor to have power to judge statutes void if he considered them to be against common right and reason, but left the parliament and the King to judge what was common right and reason.† Remember the removing and putting down your late predecessor, and by whom, which I often remember unto you, that it is the great King of Great Britain, whose great wisdom, and royal virtue, and religious care for the weal of his subjects, and for the due administration of justice can never be forgotten." This may be considered his dying effort. His indisposition returned, and he seems sincerely to have wished to retire from public life. He thus wrote to the King: "MOST GRACIOUS SOVEREIGN, I find through my great age, accompanied with griefs and infirmities, my sense and conceipt is become dull and heavy, my *There had been a keen controversy respecting Coke's right to call himself "Chief Justice of England." Ellesmere is quite wrong in supposing that this was a title only during the Barons' wars, as the office of Chief Justice of England, the highest both in the law and the state, certainly subsisted from the Conquest till the reign of Edward I. From the time when that monarch remodelled the judicial system, the head of the King's Bench was generally called "Chief Justice to hold pleas before the King himself," and he became subordinate to the Chancellor. †This is Ellesmere's best hit, for Coke had written such nonsense (still quoted by silly people) as "that in many cases the common law shall control acts of parliament, and sometimes shall judge them to be merely void; for where an act of parliament is against common right and reason, the law shall control it and judge it void."--Dr. Bonham's case, 8 Rep. When questioned for this doctrine before the Council, he was so absurd as to defend it, and give as an example, " that if an act of parliament were to give to the lord of a manor conusance of all pleas arising within his manor, yet he shall hold no plea whereunto himself is a party for iniquum est aliquem suæ rei esse judicem," thus proceeding on the construction not the repeal of the Act by the Court.-See Bacon's Works, vi. 397. memory decayed, my judgment weak, my hearing imperfect, my voice and speech failing and faltering, and in all the powers and faculties of my mind and body great debility. Wherefore conscientia imbecilitatis, my humble suit to your most sacred Majesty is, to be discharged of this great place, wherein I have long served, and to have some comfortable testimony, under your royal hand, that I leave it at this humble suit, with your gracious favour; so shall I with comfort number and spend the days I have to live in meditation and prayers to Almighty God to preserve your majesty, and all yours, in all heavenly and earthly felicity and happiness. This suit I intended some years past, ex dictamine rationis et conscientiæ; love and fear staid it now necessity constrains me to it: I am utterly unable to sustain the burthen of this great service, for I am now come to St. Paul's desire, Cupio dissolvi et esse cum Christo: Wherefore I most humbly beseech your Majesty most favourably to grant it. "Your Majesty's most humble and loyal “THOMAS ELLESMERE, Canc."* The King sent him a kind answer, saying, among other things, "When you shall remember how ill I may want you, and what miss your Master shall have of you, I hope the reason will be predominant to make you not strive with, but conquer, your disease, not for your own sake, but for his of whom you may promise yourself as much love and hearty affection as might be expected from so thankful and kind a Master to so honest and worthily deserving a servant." Prince Charles likewise wrote him a kind letter, concluding with a prayer "that God would give him health and strength of body and mind, so that the King, Queen, the Prince himself and whole kingdom, might long enjoy the fruit of his long, wise, and religious experience.' The Chancellor pressed his application in a second letter, very long, pedantic, and twaddling, which must have convinced the King that the interest of the suitors required that the resignation should not much longer be refused. The King however, wishing to treat him with all respect and delicacy, although he promised speedily to comply with his request, urged him to hold the office a short time longer, and meanwhile raised him to the rank of a Viscount, by the title of Viscount Brackley.† * Down to the reign of Charles II. Peers in signing prefixing their Christian name to their title. All persons in office in signing the most familiar letter subjoined their official designation. † After many quotations from the classics, he cites stat. 13 Ed. 1. excedentes 70 annorum non ponantur in assisis et juratis." "Homines He is always called, in law books and histories, Lord Ellesmere,-and Lord Brackley would sound as strange in our ears as Lord Verulam or Lord St. Alban's, He was installed with great pomp before the King, although parliament was not sitting, and we have a programme of the ceremony from a letter addressed to him from Garter King at Arms: "To the Right Honorable my very good Lord Sir Thomas Egerton, Knight Baron of Ellesmere, &c. Lord Chauncellor of Eng land. "Right Honorable and my very good Lord, my manyfold occasions of service at this tyme hath caused some neglect, wch I hope your Lp. will excuse. "For your Lp.'s Creation theis thinges are necessarilye required to be in redynes,-your Letters Patentes, and your Creation robes of a Viscount, being crimson vellet, a Capp, and Circlett. Touching the manner of your Lp.'s introduction, you are to be brought in to his Matie between a Viscount and an Earle, myself going formost beares your Lp.'s Letters Patentes. A Baron followeth after with your upper robe crosse his armes; and a second Baron beareth your capp and circlett. All theis estates are invested in their robes, your Lp. onlye in your Kirtle or undergarment, with your whood. When wee approache the Kinges presence wee make three lowe reverences, wch my self, being first in the proceeding, dothe direct. The Letters Patentes I deliver to the Lo. Chamberlen, and hee the same to his Matie. His Matie givith yt to one of the Secritarys to read. In the Egerton Papers there is a curious bill by Garter King at Arms, of “Fees due to the Kinge's Servants for the creation of a Viscount: |