brought into collision with the Chief Justice. In fact, very few weeks passed after Bacon's great speech on the writ of Rege inconsulto, before Coke allowed his temper to get the better of him in such a way as to afford a golden opportunity to his antagonist.

Coke with

the Chancery.

A custom had gradually arisen of seeking redress in Chancery, in cases where the Common Law courts had failed Quarrel of to do justice on account of the strictness of the rules which they had laid down for their guidance. Such a practice was, naturally enough, regarded with dissatisfaction by the Common Law judges, and by none more than by the Chief Justice of the King's Bench, who had long looked upon the Chancellor in the light of a personal opponent, as well as in that of a thoroughgoing supporter of an obnoxious system. If Coke, before he complained of the interference of the Chancery with his jurisdiction, had set himself steadily to work to remedy the evils which were complained of in the practice of his own court, he would probably have gained the support of all impartial persons; for it is manifestly objectionable that the judgments delivered in one court should be liable to reversal in another, unless that other court has been constituted expressly for the purpose of hearing appeals. But, instead of this, he plunged at once into the contest with that violence of temper which was certain to disgust all who knew that real and substantial justice was frequently afforded by the Chancery to suitors who had failed in obtaining it at Westminster.

The

As Coke was thinking over the best means of punishing those who had insulted the court over which he presided, it occurred to him that a statute' passed in the reign statute of of King Edward III., which was directed against pramunire. those who appealed to Rome against sentences obtained in the King's courts, contained words which, if taken without regard to the context, might possibly mean that no one was to question a judgment of the King's Bench in any other court, under the penalty attached to a præmunire. He was

2 The words 'in any other court' in the statute are translated also 'in

1616

CHANCERY JURISDICTION.

II

accordingly well pleased to discover that two scoundrels ' named Glanville and Allen, had met with something less than their just deserts in Chancery, after judgments had been given in their favour in the Common Law courts.

case.

Glanville's case was indeed a bad one. He had swindled a young man named Courtney out of a large sum of money, by Glanville's representing the value of a jewel to be 3607., which was in reality worth only 30l. He sold him this jewel together with others which were worth 100l. more, and obtained from him an agreement to pay 600l., upon which, when he found that the money was not forthcoming, he surreptitiously procured a judgment in a Common Law court. When Courtney discovered the fraud to which he had been subjected, he attempted to get redress, but was refused, on the ground that, the judgment having once been obtained, nothing further could be done. He then applied to the Court of Chancery, from which he obtained the justice which he sought. Allen's case was somewhat similar. Coke at once took the two swindlers under his protection, and instigated 2 them to prefer indictments of præmunire in the King's Bench, not only against the suitors who had obtained the protection of the Court of Chancery, but also against the counsellors and the clerks who had taken part in the proceedings.

Coke, however, who was upon the Bench, awaiting the success of his scheme, found an unexpected obstacle in his

the court of another,' apparently correctly, as the French is en autri court.' This would overthrow Coke's case at once, as is remarked by the author of the Jurisdiction of Chancery Vindicated, appended to vol. i. of Chancery Reports, p. 30. But the context is quite enough to settle the question.

There is a full account of these men in Harl. MSS. 1767, fol. 37. Compare, for Glanville's case, Croke, Jac. The sums of money are differently stated. I have adopted those from Croke. The cases are frequently quoted as if they had been one, Glanville v. Allen,' which is, of course, a mistake.

2 Such, at least, was the general belief, though he denied it. Perhaps he contented himself with giving them a strong hint that he would support them.

The grand jury return an ignora

mus.

way. The grand jury, who probably knew nothing about the statutes and precedents which were appealed to as determining the relations between the two courts, but who knew perfectly well that they were asked to assist a baffled swindler in taking vengeance on his dupe, were by no means in a hurry to find a true bill in the case. On this Coke sent for them, and refused to grant their request for further time to deliberate, as the case was, in his opinion, too plain to need any delay. The jury remonstrated on the ground that they had no evidence that the judgment in question had been duly obtained. Upon this Coke sprang upon his feet, and attempted to browbeat them into submission. They retired for a short time, and, on their returning without having complied with his orders, the Chief Justice told them to go back again. He would not leave the bench till the business was done; if they refused to do as he told them, he would commit them for their conduct.

In spite of all this, the grand jury refused to be bullied into submission. They returned once more into court, and, to Coke's disgust, returned an ignoramus. Angry as he was, Coke did not dare to carry his threats into execution. He told Glanville and Allen to be ready by next term, when he would have a better jury to decide upon their cases.'

At the time when this violent scene was taking place, Ellesmere was lying ill, and, though he ultimately recovered, Bacon writes was not expected to live. Bacon, who was of one to the King. mind with him on such a subject as this, and who had been visiting him in his sickness, wrote to acquaint the King with all that had happened, and promised to send him full particulars as soon as he was able to obtain a trustworthy account. A few days later, he gave his opinion of.what had passed. The defenders of the Common Law courts rested their case partly upon the statute of Edward III., which was, in

Proofs of the proceedings, printed in Lord Campbell's Chancellors, ii. 236. The story so often told about the witness kept away, which will be found in the same page, does not fit into the cases of either Glanville or Allen.

2 Bacon to the King, Feb. 15 and 21, Letters and Life, v. 246, 249.

1616

CASE OF COMMENDAMS. “

13

reality, directed against the Papal Courts, and partly upon another statute of Henry IV.,1 which contained a simple declaration, without any penalty annexed, that, after judgment given in the King's courts, the parties should be at peace. The reason assigned was because many persons whose cases had already been decided, had been made to come, to their great inconvenience, before the King himself, or the Council, or even the Parliament. This statute, as Bacon argued, was only intended to prevent parties from having to argue the same question over again, and not to prevent the institution of suits in Chancery, in cases in which one party had never been properly heard at all, on account of the strictness of the rules observed in the Common Law courts.

Opinion of the law officers.

The whole question was referred by the King to the Attorney-General and Solicitor-General, the two King's Serjeants, Montague and Crew, and the Prince's Attorney, John Walter, one of the most rising lawyers of the day. After consideration, they gave it as their unanimous opinion that the Court of Chancery was justified in the exercise of the jurisdiction which had been so violently assailed.2

Before, however, the King had decided upon the course he would take, another question arose which embroiled him Case of com- still further with the stubborn Chief Justice. It mendams. happened that, during the time that Bishop Neile had held the see of Lichfield, he had received from the King the grant of a living to be held in commendam with his bishopric as long as he occupied the see. Two persons of the name of Colt and Glover brought an action against him. They not only asserted that the presentation was theirs, and not the King's, but they pleaded that, on account of certain legal objections, the grant was invalid in itself. As the case was of great importance, and had never before been brought forward, it was adjourned into the Exchequer Chamber, in order that all the twelve judges might deliver their opinions. Whilst the case was being

1 4 Hen. IV., cap. 23.

2 The Jurisdiction of Chancery Vindicated,' in Chanc. Rep. i. Cary's Reports.

argued, information was given to the King that his prerogative was being questioned. He accordingly deputed Bishop Bilson to be present in court in his name, in order to make a report to him of the language which was used. On his return, Bilson told him that he had heard Serjeant Chibborne maintain that the King had no power to translate a bishop, and that, though it was true that in cases of necessity he might grant a commendam, yet that it was impossible that there ever could be any necessity for such a step. The King was eager to put a stop to this kind of language. About a month or two before, he had ordered Coke not to proceed to judgment till he had communicated with him in person He now directed Bacon to write to the Chief Justice, repeating his command.

to Coke, ordering him

not to proceed with the case.

Coke's feeling on the point.

Accordingly, on April 25, Bacon wrote to Coke, requiring him to intimate to the other judges that it was expected that Bacon writes they would postpone the delivery of their opinions until they had spoken with the King. On the receipt of this letter, Coke resolved to make a stand on behalf of the independence of his office. An anecdote, which has been preserved by Whitelocke, is enought to give an insight into what was passing in his mind. In the autumn of the previous year, whilst still smarting under the treatment which he had received in Peacham's affair, Coke was present at the sermon at Windsor. As soon as it was concluded, Whitelocke, who was also among the congregation, accompanied him out of the chapel to his coach. Seeing that he was about to drive away, he asked him why he did not remain to the dinner at the Court. Coke replied that the King was fond of asking him questions which were of such a nature that he preferred being as far off as possible. "I guess," was Whitelocke's remark as he noted down this conversation, "it was concerning matters of prerogative, which the King would take ill if he were not answered in them as he would have it." 1

Since that time the argument of Bacon on the writ of Rege inconsulto, and the known determination of the King to check

Whitelocke, Liber Famelicus, 48.