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 (ex 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.

The efficient of this writ is that same primogenita pars legis 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.

2 The efficient.

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

1st. The end.

with science and conscience, and according to that I read and find.

For the first part, therefore, which is the final cause for which this writ by law is devised and ordained, I will set forth unto you four things:

First, I will clear an error, or remove a mistaking, for that I will shew you that this writ is not a delay of justice, as it hath been conceived, but a direction of justice, turning of justice into the right way.

Second, Then I will lay down my ground, which is sound and infallible, that the king's title shall never be discussed in a plea between common persons, the king not made party.

Thirdly, I will shew you in what court, and in what manner, the king is to be made party.

Lastly, I will make it plain, that in this present case, in the assise between Brownlow and Michell, a right of the king, both in profit and power, and that valuable, and that of a very high nature, is to come in question to be discussed.

So then, the full of this argument will be, wheresoever the king's right is to be questioned, in a plea between party and party, there, after the writ of rege inconsulto purchased, the court ought not to proceed: but in this assise between Brownlow and Michell the king's right falls out to be questioned; ergo, in this assise the court ought not to proceed.

This is a course plain and perspicuous, my lord; it is a wise saying, sapiens incipit a fine; so the mistaking (whether voluntary or ignorant, but gross and idle I am sure) of the end and use of this writ hath bred a great buzz, and a kind of amazement, as if this were a work of absolute power, or a strain of the prerogative, or a checking or shocking of justice, or an infinite delay; as if Mr. Brownlow must sit down and expect the good hour, and had no means to help himself; or as if all causes might thus be charmed asleep, and the wheel of justice arrested at pleasure; or that the statute of 2 E. 3. c. 8. that justice should not stay for great seal nor little seal, should suffer violence; and such other popular and idle blasts.

Now all this mist is soon scattered, when the state of the question is known, and truly expounded, which is no more but [Whether the this, Whether the king's right to create and constitute a proper office for the making of supersedeas quia improvide, and appoint

king may

create an

office.]

ing a reasonable fee to the same, and the king's property and royalty in the gift of the said office in perpetuity, shall be tried between Brownlow and Michell in the king's bench, or between Brownlow and the king in chancery?

So here is all this great matter, mutatio fori et partis; and therefore this writ is no dilatory or stay of suit, but the removing of a suit, whereby justice moves on still in a straight line; it giveth the party a better suit in disabling the present suit.

That this is so, you shall find it notably proved in Arden and Darcy's case, 38 Eliz. rot. 1128. which was the latest case of this writ. There when the counsel of Arden alledged that this writ was a delay of justice, and that it was against the statute of 2 E. 3. that the judge should not stay for great seal nor petty seal, and chanted upon this ground; my lord Anderson and the rest of the court stopped that allegation, and said, just as I say now, that to obey this writ is not to delay justice to the subject, but to do justice to the king, and to draw justice to the right way; even as, should I stay and stop the water of the Thames or of a river from going into a by-let or creek, to make it run the better in the right channel, this were no stopping the stream, but guiding it; and I tell you plainly it is little better than a by-let or crooked creek, to try whether the king hath power to erect this office, in an assise between Brownlow and Michell.

not to gain the king time, but to

course.

So then let it be understood, that this writ is not to gain the This writ is king a little time to provide how to make his defence, and so to go on in this court, but plainly an alteration of the suit and alter the of the court. As Mr. Solicitor said prettily, the king saith now to the plaintiff, in me convertite ferrum, nihil iste, nec ausus, nec potuit; Mr. Michell is now no more your adversary, but you must plead with the King. Marry, I differ from Mr. Solicitor in that other point, that he thought the writ had been naught, if it had not the clause donec aliud habueritis in mandatis; for indeed I chose that form as the fairest and most corrected; but I can shew many precedents without it; for it is ever understood, though it be not expressed: for if the suit do fall out against the king in the chancery, then indeed you. shall have aliud mandatum, that is a procedendo; but if it fall out for the king in the chancery, then your donec is like the

1 "chuse" as printed.

The king

party, where his right cometh in question.

donec of the Scripture, donec solvit ultimum dodrantem, that is, never; for you shall never have aliud mandatum, but you shall have iteratum mandutum of a supersedeas omnino. But all this grows upon the same error, that men speak as if this writ were a mere dilatory, for then indeed Mr. Solicitor says well, delays may not be infinite; but this is no dilatory but a directory, I say a direction and reduction of justice from obliquity and circuity into a direct path; that is, to try the king's right in a plea with the king. So much for the discharge of the erroneous conceit of this writ.

Now I come to the second point of my first part, which is, that where the king's right is questioned, he must be made must be made party: for this, res ipsa loquitur vel potiùs clamat, the king shall not be surprised, nor stricken upon his back, nor made accessorium quiddam to the suit of another. If Mr. Michell pretend to have right to the possession of the office of the supersedeas and fee for the present by the king's grant, and the king pretends to the gift of it afterwards, the king shall not depend upon Mr. Michell's suit, but Mr. Michell upon the king's suit; and although Mr. Michell's right be present, and the king's to come, yet posteriority in the king's case is always preferred: the rule ever holds between the king and the subject, that which is last shall be first, and that is first shall be last. For the books, they do so receive this maxim, and lay it for a law fundamental, and ground infallible, as I will not authorize principles. The best books are 39 E. 3. fol. 12., 31 E. 3. Fitz: aide de roy, pl. 69. 7 H. 4. fo. 18. &c. These books 4, have it, disertis verbis, and in terminis terminantibus, that the king's right shall not be tried, except he be made party; and the judges make a wonder of it, when they are pressed, What would you have us do by the king's right without making him party? But the cases that are not so vulgar, and yet do excellently express this learning, those I think worthy the putting.

The king's right is ever the principal, though it be last in time.

Aid shall be where the Land is con

As, first, 12. Assise, pl. 41., the tenant in a præcipe conveyed the land to the king hanging the writ, and thereupon prayed aid of the king; and the court granted it; and two several vered hang judgments (saith Brooke') were vouched for it. This is somewhat a strange case, and the hardest case that can be devised or put, of making the king party.

ing the suit.

Printed Choke." See Brooke Aid del Roy, pl. 71., whence I take the reference, which is wrongly given as 12 Ass. pl. 49. I have not generally verified the references, except by the aid of Brooke and Fitzherbert and I fear there are many errors.