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Egerton, Thomas, first Viscount Brackleylocked

(1540–1617)
  • J. H. Baker

Thomas Egerton, first Viscount Brackley (1540–1617)

by unknown artist, late 16th cent.– cent.early 17th

Egerton, Thomas, first Viscount Brackley (1540–1617), lord chancellor, was born on 23 January 1540, the illegitimate son of Sir Richard Egerton, landowner, of Ridley, Cheshire, and a servant girl called Alice Sparke. His grandfather was Sir Ralph Egerton. His father's family claimed descent from Robert Fitzhugh, baron of Malpas, a contemporary of William I, and had assumed their surname from Egerton in Cheshire during the thirteenth century. One of several illegitimate siblings, Thomas Egerton was brought up in the household of Thomas Ravenscroft (d. c.1553), of Bretton, Flintshire, and his wife, Katherine.

Early career, 1556–1581

Egerton entered Brasenose College, Oxford, in 1556 and was on 31 October 1560 admitted to Lincoln's Inn, where he became caught up in a notorious Catholic circle. He escaped censure from Star Chamber in 1569, when several members of the inn were imprisoned, and produced a certificate of conformity; but his call to the bar was postponed until 1572, the same year in which Edward Coke—twelve years his junior—was called. Egerton's law books and commonplace book, which survive, bear signs of intense study in these years. Among them is a manuscript 'discourse' on statutes and their interpretation, written in the 1560s, which has been tentatively ascribed to him. By 1576 he was sufficiently established in his profession to marry his stepfather's youngest daughter, Elizabeth (d. 1588). The couple had two sons, John Egerton, first earl of Bridgewater (1579–1649), and Sir Thomas Egerton (1574–1599). After only seven years' call Thomas Egerton the elder became a bencher of his inn in 1579, and in 1582 he delivered the Lent reading, choosing a recent statute concerning letters patent. A good practice was established during this period, with the patronage of the Ravenscrofts and Grosvenors, kinsmen of his stepmother, William Chaderton, bishop of Chester, Henry Stanley, fourth earl of Derby, and Robert Dudley, earl of Leicester.

Solicitor-general and attorney-general, 1581–1596

Private practice continued into the 1590s, but was increasingly submerged by the duties of public office. On 26 June 1581 Egerton was appointed solicitor-general, supposedly at Elizabeth I's personal insistence. In 1582 he was elected recorder of Lichfield, Staffordshire, and in 1584 and 1586 he was returned as MP for Cheshire. He represented Reading in parliament in 1589. Since Egerton's student days the papal bull Regnans in excelsis of 1570 had polarized religious inclinations, and as a law officer of the crown in the 1580s he necessarily laid aside any youthful sympathies for the Catholic cause. Egerton became heavily involved in the prosecution of recusants and Jesuits, including William Vaux, third Baron Vaux, and St Edmund Campion (1581), not to mention Mary, queen of Scots (1586), Thomas Percy, sixth earl of Northumberland (1585), the Babington conspirators (1586), Philip Howard, earl of Arundel (1589), and Sir John Perrot (1592). He became in course of time a Calvinist, implacably imposed to 'the devilish doctrine of Rome' (Hunt. L., Ellesmere MS EL 459, fol. 1r). However, in 1588, and later as lord keeper of the great seal, he said that a distinction was to be made concerning recusants: 'some are simple and led by error—those he pitied and was not forward to punish—others dangerous, wilful and seditious' (Hawarde, 164). Elizabeth Russell, dowager Baroness Russell, reported that many thought him 'an arrant hypocrite and deep dissembler' (Hunt. L., Ellesmere MS EL 46, fol. 1r). Nevertheless, his ability and judgement were widely recognized, both within the profession and at court. He became a particular friend in the 1590s of the young Robert Devereux, second earl of Essex.

Already by 1592 Egerton was spoken of as a possible lord keeper; but instead he became on 2 June 1592 attorney-general, a post he occupied for only two years. In February 1594, already the most important member of the queen's council in the marches of Wales (to which he had been appointed in 1586), he was made chamberlain of Chester and knighted. On 10 April 1594 he began his long judicial association with the court of chancery when he was appointed master of the rolls. Egerton entered into the position with characteristic zeal, and immediately set about restoring some of its prerogatives. He recovered possession of the Rolls Chapel, which had been unlawfully alienated under his predecessors, and obtained the annulment of some earlier reversionary grants of offices in his gift, though he was less successful in fighting off other interferences with his patronage and failed in his attempt to bring the public records at the Tower of London under his control. Although his efforts were largely self-interested, Egerton as head of the chancery administration was concerned at growing court interference with his department for reasons of financial gain.

Lord keeper, 1596–1617

On 6 May 1596, on the death of Sir John Puckering, Egerton was appointed to succeed him as lord keeper, being allowed to retain the mastership of the rolls until the queen should choose a successor—which she never did. Again he seems to have been Elizabeth's personal choice; and on handing over the seal on 6 May she reduced Egerton to tears with an affecting speech in which she prophesied correctly that he would be her last lord keeper. Although the appointment was not fully welcomed by the Cecils, it is said that there was no serious competitor, and the general reaction seems to have been favourable. The unprecedented conjunction of offices did little for the dispatch of business, but it put Egerton in a unique position to reform the chancery system, and he took the opportunity to improve procedure and efficiency by issuing several new practice directions and by settling an approved scale of fees. He took great pains to inform himself as to the history of chancery and Star Chamber, with a view to establishing their jurisdictions, and employed William Lambarde to collect materials from the records. It is generally supposed that Egerton's best work was achieved in the 1590s, though he was too conservative and too touchy about his own sources of income for radical reform to be contemplated.

In 1597 Egerton married as his second wife Elizabeth (d. 1600), daughter of Sir William More of Loseley, Surrey, and his wife, Margaret, and widow of Sir John Wolley, Latin secretary and clerk of the pipe, and of Richard Polsted. The marriage ended with Elizabeth Egerton's death only three years later in January 1600, coming close on that of Egerton's eldest son, Sir Thomas Egerton, on 23 August 1599, of wounds received while serving in Ireland with Essex. Egerton suffered the further blow of a personal betrayal by the earl, whom he had befriended in his troubles. Egerton chose as his third wife Alice Spencer (1559–1637), literary patron, daughter of Sir John Spencer of Althorp, Northampton, and his wife, Katherine, and widow of Ferdinando Stanley, fifth earl of Derby, whom he had served as an adviser. They married in October 1600. Like his second marriage, this one produced no children. The marriage brought Egerton further wealth but untold misery. A prominent lady of the court, and a cultured patron of literature, the beautiful and wealthy dowager countess of Derby must have seemed a good match. She had been left extensive property around Brackley in Northamptonshire and in neighbouring counties, secured by chancery decree. However, she was haughty, profligate, greedy, and ill-tempered, and added greatly to her husband's burdens for the last seventeen years of his life. 'I thank God I never desired long life', wrote Egerton in 1610, 'nor ever had less cause to desire it than since this, my last marriage, for before I was never acquainted with such tempests and storms' (CSP dom., 1611–18, 527).

On the accession of James I, Egerton was reappointed lord keeper and advanced to the peerage on 21 July 1603 as Baron Ellesmere, of Ellesmere in Shropshire (where he was given a large estate), but at the king's behest relinquished the rolls in favour of the Scottish lawyer Edward Bruce. On 24 July Egerton was appointed lord chancellor, relinquishing his position as lord keeper. He presided over the chancery and Star Chamber for another fourteen years, and also conducted a number of state trials, notably those of Sir Walter Ralegh (1603), the gunpowder plotters (1605), and Robert Carr, earl of Somerset, and his wife, Frances (1616). In his judicial roles he did not always maintain a proper independence—for instance, he did not scruple to make a decree in favour of his bride-to-be in 1600, which greatly enriched himself—and in the Somerset case he was alleged by Coke to have summed up the prosecution case after the prisoner had left the bar, without referring to his defence, and adding new information which had not been given in evidence. Moreover, according to Coke, Ellesmere 'told the king that he as chancellor was keeper of the king's conscience and therefore whatsoever the king directed in any case he would decree accordingly' (CUL, MS Ii.5.21, fol. 47v). On the other hand, Ellesmere's manner of dispensing justice in ordinary cases, at any rate in his earlier years, had impressed the profession. It was during his time that the first specialist reports of chancery cases were preserved, and also the first extensive Star Chamber reports (written by John Hawarde). It may be significant that the reports end in the early years of James's reign and that few of Ellesmere's later pronouncements were preserved.

Ellesmere encouraged favourites at the bar, and was an especial patron of Sir Francis Bacon, who became the first queen's counsel-extraordinary in 1596. They worked closely together on matters of state, and Bacon—probably at his suggestion—eventually succeeded him in office. Ellesmere could be very sharp with lesser practitioners who exceeded their duty. He once promised to 'abolish and extirpate all solicitors', whom he called 'caterpillars of the common weal' (Hawarde, 45–6)—a description which he applied equally to uneducated barristers—and also proposed to reduce the number of attorneys. He was even sharper with criminal defendants, and was fond of telling them that punishments ought to be heavier than the law permitted. Slander was an especial bugbear, and in passing sentence he often remarked that in other times and places it was punished with loss of the tongue. 'Thought is free, but the tongue should be governed by knowledge' (ibid., 66).

Jurisprudence and politics

Ellesmere's approach to the law was essentially conservative, and he regretted recent reforms in common-law procedure which had rendered the medieval learning as to real actions obsolete. He also attacked the king's bench latitat, which had simplified mesne process and amplified the court's business, saying that 'the original writ is the true, ancient and best course, and safest for every man to use' (Hawarde, 326). Here again, an underlying reason for his opposition was financial, in that chancery stood to lose fines on original writs. In parliament he effectively stifled a Commons proposal to abolish the incidents of tenure, which would not only have made the king financially dependent on parliament but would have struck at the roots of the feudal common law and the monarchy as Ellesmere saw it. Legislation was another matter. He said that the Statute De donis (1285), which made entails possible, was 'made but upon a singularity of conceit and that it had been well for the commonwealth if it had never been made' (Bryson, 306). He considered the Statute of Wills (1540), which permitted landowners to devise their lands by will, to have been 'not only the ruin of ancient families but the nurse of forgeries' (Hudson, 69). Ellesmere favoured Bacon's scheme for overhauling the statute book, removing obsolete matter and resolving ambiguities, and urged it on the parliament of 1597; but neither man was able to achieve any success with this ambition.

Even during Elizabeth's reign, Ellesmere was as much a statesman as a judge. He was a confidential adviser on domestic and foreign policy, close to the Cecils but with an independence which the queen found valuable, and was employed on diplomatic negotiations with France (1597), the states general (1598), and Denmark (1600). He was one of the few privy councillors (from 1596) who witnessed the scene in the council chamber, in July 1598, when Essex insulted the queen and she boxed his ears. Under James he became a still more valued minister and—though willing at times to question the king's decisions—increasingly aligned himself with James's absolutist conceptions of monarchy. In addressing the judges in 1604, he declared that 'the king's majesty, as it were inheritable and descended from God, hath absolute monarchical power annexed inseparably to his crown and diadem, not by common law nor statute law, but more anciently than either of them' (Hawarde, 188). His views on the constitution were expounded at length in his celebrated judgment in Calvin's Case (1608), which determined that persons born in Scotland after the accession of James were not aliens in England: there was one king, one allegiance. The speech took four hours to deliver and was published as a separate pamphlet in 1609. Ellesmere did not regard the king as being above the law, and he recognized the importance of a balance of power between king, lords, and commons, but his increasingly elevated position in the state placed an ever growing distance between his political thinking and that of his old profession, and he seemed unable or unwilling to understand the concerns shared by many lawyer members of parliament, and judges, at what they perceived as growing absolutism.

Ellesmere was at odds with the judiciary on a number of occasions, at least from 1604, when they opposed the king's project of a legal union between England and Scotland. He fell out with them over the use of writs of prohibition, mandamus, and certiorari, which he thought were being issued too lightly and without proper judicial supervision. Prohibitions, in particular, were depriving the ecclesiastical courts of their tithe jurisdiction, and in 1609 the judges were hauled before the privy council to explain themselves. Worst of all, king's bench was assuming a power of judicial review over governmental activities. Ellesmere was angry that Coke and his brethren had taken to reviewing the activities of municipal corporations, the provincial councils, and even the high commission, 'as if the King's Bench had a superintendency over the government itself' (Knafla, 307–8). However, the principal clash came over Ellesmere's claim as chancellor to reopen cases which had proceeded to judgment at common law. This had long been held to be illegal, since judgments were supposed to be inviolate, and in 1598 the judges in the exchequer chamber confirmed this position. Ellesmere resumed the practice of issuing decrees after judgment under the justification that his jurisdiction was concerned not with the judgment but with the conscience of the parties. In 1615 Coke released on habeas corpus a number of prisoners who had been committed by Ellesmere in cases of this kind, including Dr Barnaby Goche, master of Magdalene College, Cambridge.

One of the parties released by Coke, a rogue called Richard Glanville, embarked on the foolhardy course of trying to secure an indictment upon the Statute of Praemunire not only against his opponent but also against Ellesmere himself. Ellesmere made a strong complaint to James and had the matter referred to the privy council, and to the king's counsel (particularly Bacon), with a view to disgracing Coke. It was in this connection that he compiled, doubtless with Bacon's assistance, A Breviate or Direction for the King's Learned Counsel, a tract in defence of his disputed jurisdiction, which survives in numerous copies. In June 1616 the king, primed by Ellesmere and Bacon, sat in Star Chamber and pronounced in favour of chancery. Coke, who had become a nuisance to the government in several respects, was thrice called before the privy council, suspended from his circuits, and ordered to revise some supposed defects in his reports as set out in writing by Ellesmere. Timothy Tourneur, a young barrister, saw these proceedings as symbolic of a new form of tyranny for which Ellesmere was largely to blame:

this is maintained by the high power of the chancellors, who persuade the king that they are solely the instruments of his prerogative, and insinuate with the king that his prerogative is transcendent to the common law; and thus in a short time they will enthral the common law (which yields all due prerogative) and by consequence the liberty of the subjects of England will be taken away, and no law practised on them but prerogative, which will be such that no one will know the extent thereof; and thus the government in a short time will lie in the hands of a small number of favourites, who will flatter the king to obtain their private ends … And if these breeding mischiefs are not redressed by parliament, the body will in a short time die in all its parts. But some say that no parliament will be held again in England—and then goodbye, ancient liberty of England.

BL, Add. MS 35957, fol. 55v, translated

Coke perceived the threat to the rule of law even earlier. Since about 1609 he had been compiling a list of 'dangerous and absurd opinions affirmed before the king' by Ellesmere, and by 1616 the total had reached eighteen (CUL, MS Ii.5.21, fol. 47v). The first complaint was that Ellesmere had told James that he could decide cases in person without consulting the judges, a matter on which Coke had engaged in a famous altercation with the king. Others concerned questions of jurisdiction and the authority of the judges. Coke was especially exercised by the new practice—engineered by Bacon and Ellesmere—of summoning judges before the privy council to answer for their decisions, which were openly reproved by the law officers. The result drove a wedge between the king and his judges. When Ellesmere was asked to stand with the judges on these occasions, 'his continual answer was that he would not lie in the gap for any man'. These were serious accusations, but Coke was out of favour and was not heard by those above him. In November 1616, to the horror of the profession, he was peremptorily dismissed from office. Ellesmere dragged himself from his sickbed to swear in Sir Henry Mountagu as Coke's successor, and delivered an ungracious speech warning him not to follow the example of his predecessor, whose faults he listed in detail. The Stuart form of government was set on a disastrous course.

Last years, 1610–1617

Ellesmere's last years were rendered miserable not merely by affairs of state and by his third wife but also by illness, in the form of the gout and the stone, and perhaps some form of senile dementia. He was fond of fresh air, moderate country living, and a healthy diet, and many believed that he was apt to feign illness to escape his duties, just as he claimed an aversion to the smell of molten wax to excuse himself from sealing patents to which he was opposed. He petitioned the king several times to be allowed to resign on grounds of senility, though it was widely thought in the legal profession that he clung to office through unawareness of his growing incompetence. Having begun life in circumstances then considered ignoble, he was always covetous of rewards and dignities, and finally set his heart on an earldom. On 7 November 1616, already in failing health, he was created Viscount Brackley, a title which Coke's friends deliberately mispronounced 'Break-Law'. Four months later his wish to retire was finally granted by James, supposedly on a temporary basis, with the promise of an earldom. On 3 March 1617 he surrendered the great seal to the king in person—some thought it was taken from him after he refused to affix it to a patent—and he died at York House, his London home, on 15 March. On 5 April he was buried at Dodleston, Cheshire, where he had kept his principal seat since the 1580s.

In 1610–11 Ellesmere prepared with care some 'notes and remembrances' for peace between his wife and his son, and he made his last will on 16 August 1615, 'finding no true comfort nor contentment in this miserable life, but feeling the mighty hand of God in many grievous afflictions both in body and in mind' (Hunt. L., Ellesmere MS EL 721). His 'loving wife', who was left her jointure and paraphernalia but nothing else, contested the will unsuccessfully. Most of the considerable fortune—estimated by some contemporaries at £12,000 a year—went, after provision for his daughters, to his only surviving son, Sir John Egerton, who was charged to be kind to his sister and her children, 'for I fear that after my decease they will be friendless and comfortless in this world'. Sir John Egerton inherited the viscountcy and was soon afterwards given the earldom promised to his father. His descendant Scroop Egerton, fifth earl of Bridgewater (1681–1745), was created duke of Bridgewater in 1741.

The many panegyrics written upon Ellesmere in his lifetime, for instance by Ben Jonson, can hardly be considered objective. There was wide agreement that he was deeply learned in the law and wise in judgement, eloquent in speech, and with a pleasing voice. He liked to coin a nice phrase but did not waste words. According to his admirer William Hudson, 'the grave chancellor Ellesmere, affecting matter rather than affectation of words, tied the same to laconical brevity' (Hudson, 18). Many of Ellesmere's aphorisms have been preserved, in addition to his set speeches delivered on various occasions. On the other hand, in his later years his virtues were offset by his defects. John Chamberlain wrote, on hearing of his death, that he 'left but an indifferent name, being accounted too sour, severe, and implacable, an enemy to parliaments and the common law, only to maintain his own greatness and the exorbitant jurisdiction of his court of Chancery' (The Letters of John Chamberlain, ed. N. E. McClure, 2 vols., 1939, 2.65). Richard Hutton, a serjeant-at-law who became a judge in 1617, set down a similar opinion in his diary:

he was a man of great and profound judgment, an eloquent speaker, and yet in his later times he became more choleric and opposed the jurisdiction of the common law and enlarged the jurisdiction of the Chancery, and in many things he derogated from the common law and the judges.

CUL, Add. MS 6862, fol. 126r, translated

Tourneur, while praising his judgement and voice, said he was:

acerrimus propugnator of the Chancery and Star Chamber, in a word the bane of the law; yet not for any hate he bare it, but for the love he bare to his own honour to greaten himself by the fall of others.

BL, Add. MS 35957, fol. 81v

Nor were Ellesmere's judicial endeavours appreciated as highly as they had been in Elizabeth's reign. A combination of overwork and decrepitude had resulted in an enormous backlog of undecided causes, which one chancery clerk in 1617 put as high as 8000. The office of lord chancellor was undoubtedly too much for one man, and the problem was not resolved until the nineteenth century; but Ellesmere had abandoned his earlier attempts to improve the chancery, and in furthering the absolutist tendencies of James for his own aggrandizement had apparently forfeited the general esteem of his profession.

Sources

  • L. A. Knafla, Law and politics in Jacobean England: the tracts of Lord Chancellor Ellesmere (1977)
  • W. J. Jones, The Elizabethan court of chancery (1969)
  • J. H. Baker, The legal profession and the common law (1987)
  • F. H. Egerton, The life and character of Thomas Egerton, Lord Ellesmere (1806)
  • J. H. Baker, Readers and readings in the inns of court and chancery, SeldS, suppl. ser., 13 (2000)
  • W. H. Bryson, ed., Cases concerning equity and the courts of equity, 1550–1660, 2 vols., SeldS, 117–18 (2001–2), vol. 1
  • Les reportes del cases in camera stellata, 1593 to 1609, from the original ms. of John Hawarde, ed. W. P. Baildon (privately printed, London, 1894)
  • W. Hudson, ‘A treatise of the court of star chamber’, Collectanea juridica, ed. F. Hargrave, 2 (1792)
  • Foss, Judges, vol. 6
  • J. H. Baker, English legal manuscripts in the United States of America: a descriptive list, 2 vols., SeldS (1985–90)
  • J. H. Baker and J. S. Ringrose, A catalogue of English legal manuscripts in Cambridge University Library (1996)
  • Hunt. L., Ellesmere MS EL 721 [copy of will]

Archives

  • Folger, corresp.
  • Hatfield House, Hertfordshire, corresp. and papers
  • Herts. ALS, official papers and estate papers
  • Hunt. L., corresp. and papers, incl. papers relating to work as lord chancellor
  • Inner Temple, London, papers
  • Northants. RO, notes on royal prerogative

Likenesses

  • oils, 1603, NPG; at Montacute House, Somerset
  • oils, 1603, Lincoln's Inn, London
  • oils, 1617, Lincoln's Inn, London; version, Bodl. Oxf.
  • S. de Passe, engraving, 1618
  • oils on panel, 1650×99–1700×49, NPG [see illus.]
E. Foss, , 9 vols. (1848–64); repr. (1966)
P. W. Hasler, ed., , 3 vols. (1981)
Selden Society
Huntington Library, San Marino, California
G. E. C. [G. E. Cokayne], , 8 vols. (1887–98); new edn, ed. V. Gibbs & others, 14 vols. in 15 (1910–98); microprint repr. (1982) and (1987)