or weakened; he commanded his attorney general, not only to have care to maintain it according to his place, but also that he should relate to his majesty how things passed; and did also command the Bishop of Winchester to be present at the public argument of the case; and to report to his majesty the true state of that question, and how far it extended. This being accordingly done; then upon report of the Bishop of Winchester in presence of the lord chancellor, his majesty thought it necessary, that before the judges proceeded to declare their opinion they should have conference with his majesty, to the end to settle some course, that justice might be done, and his regal power, whereof his crown had been so long vested, not touched nor diminished: and thereupon commanded his attorney, who by his place ought properly to signify his majesty's pleasure to his judges, as his secretary doth to his privy council, in the presence of the lord chancellor and the bishop, to signify his pleasure to the judges, that because his majesty thought it needful to consult with them in that case before they proceeded to judgment; and that his majesty's business, as they all knew, was very great, and Midsummer term so near at hand, and the cause argued by his attorney so lately, they should put off the day till they might advise with his majesty at his next coming to town. That his majesty's attorney signified so much by his letters, the next day after he had received his commandment, to all the judges, and that in no imperious manner, but alleging the circumstances aforesaid, that the case was lately argued, his majesty's business great, another term at hand, etc. Now followeth the manner that was held in this, which his majesty conceiveth was not only indiscreet, but presumptuous and contemptuous. For, first, they disobeyed this his majesty's commandment, and proceeded to public argument, notwithstanding the same; and thought it enough to certify only their mind to his majesty. lar occasions, of a far higher nature than the consulting with their sovereign about a cause of great moment, to put off days, and yet no breach of oath. And there was another fair passage well known to my Lord Coke, that he might have used if it had pleased him; for that very day was appointed for the king's great cause in the chancery, both for my Lord Hobart and him; which cause ought to have had precedence afore any private cause, as they would have this seem to be. To this letter his majesty made a most princely and prudent answer, which I leave to itself. Upon this declaration his majesty will be pleased to have the judges' letter and his own letter read. Then his majesty, for his part, as I conceive, will be pleased to ask the advice of his council as well for the stay of the new day, which is Saturday next, as for the censure and reproof of the contempt passed: for though the judges are a reverend body, yet they are, as all subjects are, corrigible. SIR, TO SIR GEORGE VILLIERS. I send his majesty a draught of the act of council concerning the judges' letter, penned as near as I could to his majesty's instructions received in your presence. I then told his majesty my memory was not able to keep way with his; and, therefore, his majesty will pardon me for any omissions or errors, and be pleased to supply and reform the same. I am preparing some other materials for his majesty's excellent hand, concerning business that is coming on: for, since his majesty hath renewed my heart within me, methinks I should double my endeavours. ever preserve and prosper you. I rest Your most devoted and bounden servant, God Secondly, in a general letter under all their hands, howsoever it may be upon divided opinion, they allege unto his majesty their oath; and, that his majesty's commandment, for the attorney's letter was but the case that it was wrapped *AT WHITEHALL THE SIXTH OF JUNe, anno, 1616. in, was against law; as if maturity and a deliberate proceeding were a delay, or that commandment of stay in respect of so high a question of state and prerogative, were like a commandment gotten by importunity, or in favour of a suitor. Thirdly, above all, it is to be noted and justly doubted, that, upon the contrary, in this that they have done, they have broken their oath; for their oath is to counsel the king when they shall be called; and if, when the king calleth them to counsel, they will do the deed first, and give him counsel after, this is more than a simple refusal. Lastly, it is no new thing upon divers particu TOUCHING THE COMMENDAMS. Duke of Lenox. Mr. Chancellor of | made; his majesty apprehending the matter to be His majesty having this day given order for meeting of the council, and that all the judges, being twelve in number, should be sent for to be present; when the lords were sat, and the judges ready attending, his majesty came himself in person to council, and opened to them the cause of that assembly; which was: That he had called them together concerning a question that had relation to no private person, but concerned God and the king, the power of his crown, and the state of this church, whereof he was protector; and that there was no fitter place to handle it than at the head of his council-table: that there had been a question pleaded and argued concerning commendams; the proceedings wherein had either been mis-reported or mis-handled; for, his majesty a year since had received advertisements concerning the cause in two instances, by some that intrenched upon his prerogative royal in the general power of granting commendams; and by others, that the doubt rested only upon a special nature of a commendam, such as in respect of the incongruity and exorbitant form thereof might be questioned, without impeaching or weakening the general power of all. "MY LORD, It is the king's express pleasure, that because his majesty's time would not serve to have conference with your lordship and his judges, touching the cause of commendams, at his last being in town; in regard of his majesty's other most weighty occasions; and for that his majesty holdeth it necessary, upon the report which my Lord of Winchester, who was present at the last arguments by his majesty's royal commandment, made to his majesty, that his majesty be first consulted with, ere there be any farther proceedings by arguments by any of the judges, or otherwise; therefore that the day appointed for the farther proceedings by arguments of the judges in that case, be put off till his majesty's farther pleasure be known, upon consulting with him; and to that end, that your lordship forthwith signify his commandment to the rest of the judges: whereof your lordship may not fail: and so I leave your lordship to God's goodness. Your loving friend to command, April 25, 1616." Whereupon his majesty, willing to know the true state thereof, commanded the Lord Bishop of Winchester, and Mr. Secretary Winwood to be present at the next argument, and to report the state of the question and proceeding to his majesty. But Mr. Secretary Winwood being absent by occasion, the Lord of Winchester only was present, and made information to his majesty of This Thursday afternoon, the particulars thereof, which his majesty commanded him to report to the board. Whereupon the Lord of Winchester stood up and said, that Serjeant Chiborne, who argued the cause against the commendams, had maintained divers positions and assertions very prejudicial to his majesty's prerogative royal; as first, that the translation of bishops was against the canon law, and for authority vouched the canons of the council of Sardis; that the King had not power to grant commendams, but in case of necessity; that there could be no necessity, because there could be no need for augmentation of living, for no man was bound to keep hospitality above his means; besides other parts of his argument tending to the overthrow of his majesty's prerogative in case of commendams. The Lord of Winchester having made his report, his majesty resumed his former narrative, letting the lords know, that after the Lord of Winton had made unto his majesty a report of that which passed at the argument of the cause, like in substance unto that which now had been FR. BACON. That upon this letter received, the lord chief justice returned word to his majesty's said attorney by his servant; That it was fit the rest of his brethren should understand his majesty's pleasure immediately by letters from his said attorney to the judges of the several benches: and accord ingly it was done; whereupon all the said judges assembled, and by their letter under their hands certified his majesty, that they held those letters, importing the signification aforesaid, to be contrary to law, and such as they could not yield to the same by their oath; and that thereupon they had proceeded at the day, and did now certify his majesty thereof: which letter of the judges his majesty also commanded to be openly read, the tenor whereof followeth, in hæc verba." MOST DREAD AND MOST GRACIOUS SOVEReign, It may please your most excellent majesty to be advertised, that this letter here enclosed was delivered unto me your chief justice on Thursday 66 "JAMES REX, Trusty and well-beloved counsellors, and trusty and well-beloved, we greet you well. We perceive by your letter, that you conceive the commandment given you by our attorney-general in our name to have proceeded upon wrong informa last in the afternoon, by a servant of your majes- | powers and prerogatives of the crown, he would ty's attorney-general; and letters of the like effect not endure to have them wounded through the were on the day following sent from him by his sides of a private person; admonishing them also, servant to us your majesty's justices of every of lastly, of a custom lately entertained, of a greater the courts at Westminster. We are and ever will boldness to dispute the high points of his majesty's be ready with all faithful and true heart, accord- prerogative in a popular and unlawful liberty of ing to our bounden duties, to serve and obey argument more than in former times: and making your majesty, and think ourselves most happy to them perceive also how weak and impertinent the spend our times and abilities to do your majesty pretence of allegation of their oath was in a case true and faithful service in this present case men- of this nature, and how well it might have been tioned in this letter. What information hath spared; with many other weighty points in the been made unto you, whereupon Mr. Attorney said letter contained: which letter also by his doth ground his letter, from the report of the majesty's appointment and commandment was Bishop of Winton, we know not; this we know, publicly read in hæc verba." that the true substance of the cause summarily is thus; it consisteth principally upon the construction of two acts of parliament, the one of the twenty-fifth year of King Edward III., and the other of the twenty-fifth year of King Henry VIII., whereof your majesty's judges upon their oaths, and according to their best knowledge and learning, are bound to deliver their true understand-tion: but if you list to remember what princely ing faithfully and uprightly; and the case between two for private interest and inheritance earnestly called on for justice and expedition. We hold it our duty to inform your majesty, that our oath is in these express words: That in case any letters come unto us contrary to law, that we do nothing by such letters but certify your majesty thereof, and go forth to do the law, notwithstanding the same letters. We have advisedly considered of the said letter of Mr. Attorney, and with one consent do hold the same to be contrary to law, and such as we could not yield to the same by our oath, assuredly persuading ourselves that your majesty being truly informed, that it standeth not with your royal and just pleasure to give way to them and knowing your majesty's zeal to justice to be most renowned, therefore we have, according to our oaths and duties, at the very day prefixed the last term, proceeded, and thereof certified your majesty; and shall ever pray to the Almighty for your majesty in all honour, health, and happiness long to reign over us. care we have ever had, since our coming to this crown, to see justice duly administered to our subjects, with all possible expedition; and how far we have ever been from urging the delay thereof in any sort, you may safely persuade yourselves that it was no small reason that moved us to send you that direction. You might very well have spared your labour in informing us of the nature of your oath; for although we never studied the common law of England, yet are we not ignorant of any points which belong to a king to know: we are therefore to inform you hereby, that we are far from crossing or delaying any thing which may belong to the interest of any private party in this case; but we cannot be contented to suffer the prerogative royal of our crown to be wounded through the sides of a private person: we have no care at all which of the parties shall win this process in this case, so that right prevail, and that justice be truly administered. But on the other side, we have reason to foresee that nothing be done in this case which may wound our prerogative in general; and therefore so that we may be sure that nothing shall be debated amongst you which may concern our general power of giving commendams, we desire not the parties to have one hour's delay of justice: but that our prerogative should not be wounded in that regard for all times hereafter, His majesty having considered of this letter, upon pretext of private persons' interest, we sent by his princely letters returned answer, reporting you that direction; which we account as well to himself to their own knowledge and experience, be wounded if it be publicly disputed upon, as what princely care he hath ever had since his coming to the crown, to have justice duly administered to his subjects, with all possible expedition; and how far he was from crossing or delaying of justice, when the interest of any private person was questioned: but on the other side expressing himself, that where the case concerned the high Edw. Coke, Henry Hobart, Laur. Serjeants-Inn, 25th April, 1616." if any sentence were given against it: we are therefore to admonish you, that since the prerogative of our crown hath been more boldly dealt withal in Westminster Hall, during the time of our reign, than ever it was before in the reigns of divers princes immediately preceding us, that we will no longer endure that popular and unlawful den upon his prerogative: which being most contrary to their vocation of any men, since the law or lawyers can never be respected, if the king be not reverenced; it doth therefore best become the judges of any, to check and bridle such impudent lawyers, and in their several benches to disgrace them that bear so little respect to their king's authority and prerogative: that his majesty had a double prerogative, whereof the one was ordinary and had relation to his private interest, which might be, and was every day, disputed in Westminster Hall; the other was of a higher nature, referring to his supreme and imperial power and sovereignty, which ought not to be disputed or handled in vulgar argument: but that of late the courts of the common law are grown so vast and transcendent, as they did both meddle with the king's prerogative, and had encroached upon all other courts of justice; as the high commission, the councils established in Wales and at York, the court of requests. liberty; and therefore we were justly moved to send you that direction to forbear to meddle in a cause of so tender a nature, till we had farther thought upon it. We have cause indeed to rejoice of your zeal for your speedy execution of justice; but we would be glad that all our subjects might so find the fruits thereof, as that no pleas before you were of older date than this is. But as to your argument, which you found upon your oath, you give our predecessors, who first founded the oath, a very charitable meaning, in perverting their intention and zeal to justice, to make a weapon of it to use against their successors; for, although your oath be, that you shall not delay justice between any private persons or parties, yet was it not meant that the king should thereby receive harm, before he be forewarned thereof; neither can you deny, but that every term you will, out of your own discretions, for reasons known unto you, put off either the hearing or determining of any ordinary cause betwixt private persons till the next term following. Our pleasure therefore is, who are the head and fountain of justice under God in our dominions, and we out of our absolute power and authority royal do command you, that you forbear to meddle any farther in this plea till our coming to town, and that out of our own mouth you hear our pleasure in this business; which we do out of the care we have, that our prerogative may not receive an un-off any hearing or proceeding upon any just or witting and indirect blow, and not to hinder justice to be administered to any private parties, which no importunities shall persuade us to move you in. Like as, only for the avoiding of the unreasonable importunity of suitors in their own particular, that oath was by our predecessors ordained to be administered unto you: so we wish you heartily well to fare. "POSTSCRIPT. You shall upon the receipt of this letter call our attorney-general unto you, who will inform you of the particular points which we are unwilling to be disputed of in this case." Concerning that which might be termed commission, his majesty took exception at the judges' letter, both in matter and form: for matter, his majesty plainly demonstrated, that whereas it was contained in the judges' letter, that the signification of his majesty's letter as aforesaid was contrary to law, and not agreeable to the oath of a judge; that could not be: first, for that the putting necessary cause, is no denying or delaying of justice, but wisdom and maturity of proceeding; and that there cannot be a more just and necessary cause of stay, than the consulting with the king, where the cause concerns the crown; and that the judges did daily put off causes upon lighter occasions; and likewise his majesty did desire to know of the judges, how his calling them to consult with him was contrary to law, which they could never answer unto. Secondly, That it was no bare supposition or surmise, that this cause concerned the king's prerogative; for that it had been directly and plainly disputed at the bar; and the very disputing thereof in a public audience is both dangerous and dishonourable to his majesty. Thirdly, That the manner of the putting off that which the king required, was not infinite nor long time, but grounded upon his majesty's weighty occasions, which were notorious; by reason whereof he could not speak with the judges before the argument; and that there was a certain expectation of his majesty's return at Whitsuntide: and likewise that the cause had been so lately handled and argued, and would not receive judgment by the Easter term next, as the judges themselves afterwards confessed. This letter being read, his majesty resolved to take into his consideration the parts of the judges' letter, and other their proceedings in that cause, and the errors therein contained and committed; which errors his majesty did set forth to be both in matter and manner: in matter, as well by way of omission as commission; for omission, that it was a fault in the judges, that when they heard a counsellor at the bar presume to argue against his majesty's prerogative, which in this case was in effect his supremacy, they did not interrupt and reprove sharply that base and bold course of defaming or impeaching things of so high a nature by discourse; especially since his majesty hath And afterwards, because there was another just observed, that ever since his coming to the crown, cause of absence for the two chief justices, for the popular sort of lawyers have been the men, that they ought to have assisted the lord chancelthat most affrontedly in all parliaments have trod-lor the same day in a great cause of the king's followed by the Lord Hunsdon against the Lord | plea concerned the king's prerogative, without William Howard in chancery; which cause of consulting with his majesty first, and informing the king's, especially being so worthy, ought to his princely judgment, was a thing preposterous; have had precedency before any cause betwixt for that they ought first to have made that appear party and party. Also, whereas it was contained to his majesty, and so to have given him assurance in the judges' letter that the cause of commendams thereof upon consulting with him. was but a cause of private interest between party and party, his majesty showed plainly the contrary; not only by the argument of Serjeant Chiborne, which was before his commandment, but by the argument of the judges themselves, namely, Justice Nicholls, which was after; but especially since one of the parties is a bishop who pleaded - for the commendams by the virtue of his majesty's prerogative. And for the matter, that it should be against the law and against their oath, his majesty said he had spoken enough before; unto which the lord chief justice in effect had made no answer, but only insisted upon the former opinion; and therefore the king required the lord chancellor to deliver his opinion upon that point, whether the stay that had been required by his majesty were contrary to law, or against the judges' oath. Also, whereas it was contained in the judges' The chancellor stood up and moved his majesty, letter, that the parties called upon them earnestly that because this question had relation to matter for justice, his majesty conceived it to be but pre-of law, his majesty would be informed by his tence; urging them to prove that there was any learned counsel first, and they first to deliver their solicitation by the parties for expedition, other-opinions, which his majesty commanded them to do. wise than in an ordinary course of attendance; which they could not prove. As for the form of the letter, his majesty noted, that it was a new thing, and very indecent and unfit for subjects to disobey the king's commandment, but most of all to proceed in the mean time, and to return to him a bare certificate; whereas, they ought to have concluded with the laying down and representing of their reasons modestly to his majesty, why they should proceed; and so to have submitted the same to his princely judgment, expecting to hear from him whether they had given him satisfaction. After this his majesty's declaration, all the judges fell down upon their knees, and acknowledged their error for matter and form, humbly craving his majesty's gracious favour and pardon for the same. Whereupon his majesty's attorney-general gave his opinion, that the putting off of the day in manner as was required by his majesty, to his understanding was without all scruple no delay of justice, nor danger of the judges' oath; insisting upon some of the reasons which his majesty had formerly opened, and adding, that the letter he had formerly written by his majesty's command was no imperious letter; as to say his majesty, for certain causes, or for causes known to himself, would have them put off the day: but fairly and plainly expressed the causes unto them; for that the king conceived upon my Lord of Winton's report, that the cause concerned him; and that his majesty would have willingly spoken with them before, but by reason of his important business could not; and therefore required a stay till they might conveniently speak with him, which they knew could not be long. And in conclusion of his speech wished the judges to consider seriously with themselves, whether they were not in greater danger of breach of their oaths by the proceedings, than they would have been by their stay; for that it is part of their oath to counsel his majesty when they are called; and if they But for the matter of the letter, the lord chief justice of the king's bench entered into a defence thereof; the effect whereof was, that the stay required by his majesty was a delay of justice, and therefore contrary to law and the judges' oath; and that the judges knew well amongst themselves, that the case, as they meant to handle it, did not concern his majesty's prerogative of grant-will proceed first in a business whereupon they ing of commendams: and that if the day had not held by the not coming of the judges, the suit had been discontinued, which had been a failing of justice, and that they could not adjourn it, because Mr. Attorney's letter mentioned no day certain, and that an adjournment must always be to a day certain. Unto which answer of the chief justice his majesty did reply; that for the last conceit, it was mere sophistry, for that they might in their discretions have prefixed a convenient day, such as there might have been time for them to consult with his majesty before, and that his majesty left that point of form to themselves. And for that other point, that they should take upon them peremptorily to discern whether the are called to counsel, and will counsel him when the matter is past, it is more than a simple refusal to give him counsel; and so concluded his speech, and the rest of the learned counsel consented to his opinion. Whereupon the lord chief justice of the king's bench, answering nothing to the matter, took exception that the king's counsel learned should plead or dispute with the judges; for he said they were to plead before judges, and not to dispute with them. Whereunto the king's attorney replied, 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 |