1616 (II)

Bill Long 12/13/04

The Report of the Commissioners to James I (First Question)

We have seen how Edward Coke, Chief Justice of King's Bench from 1613-16, was an avid proponent of the common law at the expense of royal prerogative. This rankled the authoritarian James I and was no doubt one of the reasons behind his appontment of the Commission in 1615 to look into common law precedents justifying the principal that Chancery could "trump" the decisions of Common Law courts through injunction or other stays of execution. Coke's "intransigence" had been going on for several years, at least since the days he served as Chief Judge of Common Pleas (1606-13).

For example, in the notable 1608 issue called Prohibitions Del Roy (the report of which Coke did not publish in his lifetime; it was published in 1655 during the Civil War), the King took the side of the Archibishop of Canterbury to try to stop the common law writs of prohibition from limiting jurisdiction of the Church courts. In the course of his case summary, Coke told the King in no uncertain terms that though the King was endowed with "excellent science, and great endowments of nature," that His Majesty was "not learned in the laws of his realm of England." Thus, Coke himself would tell the King what the law said.

Quoting the 13th century common lawyer Bracton (the author of the first treatise in English law), Coke said, "The king should not be under man but under God and the law." No doubt when King James heard that explanation he was furious--since it is a small step from Coke's assertion that the king is "under the law" to the statement that Coke is the authoritative interpreter the law, and hence "above" the King.

The Report of 1616 (in 21 English Reports 61-62)

So, the Commission got to work and "advisedly considered of the note delivered to us, of precedents of complaining and proceeding in Cahancery after judgments in the Common Law." The committe, composed of Francis Bacon (yes, the great Bacon of the Novum Organum), Randell Crew, Henry Mountague and Henry Yelverton, reported back in March 1616 in thirteen points, the most notable of which were as follows:

2. "We find that there hath been a strong current of practice of proceeding in Chancery after judgment, and many times after execution, continued from the beginning of Henry the Seventh's reign (1485) unto the time of the Lord Chancellor that now is (Ellesmere), both in the reigns of the several Kings, and in the times of the several Chancellors...it being in cases where there is no remedy for the subject, by the strict course of the common law, unto which the Judges are sworn."

Then the report gave three quick points detailing when these proceedings in Chancery had taken place. 3. "These proceedings in Chancery, hath been after judgments;" 4. "It hath been after judgments in your Majesty's several Courts, King's Bench, Common Pleas, Justice in Oyer, &c.;" 5. "It hath been after judgments obtained upon verdict, demurrers, and where writs of error have been brought." Sometimes the plaintiffs pleaded for the relief of a stay of execution and sometimes they even prayed for help after execution of the judgment had taken place (6).

But there was more. Chancery had intervened even before final judgment was rendered. 7. "We find the matters in equity laid in such bills in most of the cases, to have been matter precedent before the judgments, and not matter of agreement after." When in cases had equity intervened? 8. "We find in the said cases, not only the bill preferred, but motions, orders, injuctions, and decresses thereupon.... But not only was Chancery able to intervene as a result of the appeal from outside, so to speak. The Court could speak sua sponte. 10. "We find that the Judges themselves, in their own Courts, when there appeared unto them matter of equity, because they by their oath and office could not stay the judgments....have directed the parties to seek relief in Chancery."

Conclusion

Thus in answer to the first question posed by the King, regarding whether the Chancellor had authority to intervene in Common Law proceedings at any stage of the proceedings, the Commission answered with a resounding "Yes." But a second question would be posed to the Commission, after Coke's high-handed attempt to indict Ellesmere and others early in 1616--was there any statutory (not judicial) authority that would prohibit Chancery from intervening in Common Law proceedings? The next essay treats this subject.