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His Majesty may, if he please, forbear to publish at this time at the table the committees; but signify his pleasure to themselves afterwards.
The committees named by his Majesty, were the archbishop of Canterbury, secretary Lake, the chancellor of the exchequer, and the master of the rolls.
grace offered to his chancery and chancellor, he | to have the certificate of the learned counsel openly would first inform himself whether the chancery or read. chancellor were in fault; and whether the former precedents of chancery did warrant the proceedings there after judgment passed at common law, which was the thing in question, and thereupon his Majesty called his learned counsel to him, and commanded them to examine the precedents of chancery, and to certify what they found: which they did; and by their certificate it appeareth, that the precedents of that kind were many and precise in the point, and constant, and in good times, and allowed many times by the judges themselves.
That after this his Majesty received from the lord chancellor a case, whereby the question was clearly set down and contained within the proper bounds of the present doubt; being, Whether upon apparent matter of equity, which the judges of the law by their place and oath cannot meddle with or relieve, if a judgment be once passed at common law, the subject shall perish, or that the chancery shall relieve him; and whether there be any statute of præmunire or other, to restrain this power in the chancellor; which case, upon the request of the lord chancellor, his Majesty likewise referred to his learned counsel, and the prince's attorney Mr. Walter was joined with them, who, upon great advice and view of the original records themselves, certified the chancery was not restrained by any statute in that case.
That his Majesty again required his learned counsel to call the clerks of the king's bench to them, and to receive from them any precedents of indictments in the king's bench against the chancery for proceeding in the like case; who produced only two precedents, being but indictments offered or found, upon which there was no other proceeding; and the clerks said, they had used diligence and could find no more.
That his Majesty, after he had received this satisfaction that there was ground for that the chancery had done, and that the chancery was not in fault, he thought then it was time to question the misdemeanor and contempt in scandalizing and dishonouring his justice in that high court of chancery in so odious a manner; and commanded his attorney-general, with the advice of the rest of his learned counsel, to prosecute the offenders in the star-chamber, which is done; and some of them are fled, and others stand out and will not answer.
That there resteth only one part more towards his Majesty's complete information in this cause: which is to examine that which was done in open court the said last day of Hilary term, and whether the judges of the king's bench did commit any excess of authority; or did animate the offenders otherwise than according to their duty and place; which inquiry, because it concerneth the judges of a court to keep order and decorum, his Majesty thinketh not so convenient to use his learned counsel therein, but will commit the same to some of the council-table, and his learned counsel to attend them.
This declared, or what else his Majesty in his own high wisdom shall think good; it will be fit time
This report is to be prefixed, to be given in by Wednesday at night, that his Majesty may communicate it with his council, and take farther order on Thursday thereupon, if his Majesty be so pleased.
At this declaration, it is his Majesty's direction, to the end things may appear to be the more evenly carried, that neither my lord chancellor nor my lord chief justice be present.
But then when his Majesty entereth into the second declarative, my lord chancellor is to be called for; but my lord chief justice not; because it concerneth him.
For the second declarative: that his Majesty hath reason to be offended and grieved, in that which passed touching the Commendams, both in matter and manner for the matter, that his Majesty's religious care of the church and of the prelacy, and namely, of his lords spiritual the bishops, may well appear, first, in that he hath utterly expelled those sectaries or inconformable persons that spurned at the government; secondly, that by a statute made in the first year of his reign, he hath preserved their livings from being wasted and dilapidated by long leases, and therein bound himself and his crown and succession; and lastly, that they see two bishops privy counsellors at the table, which hath not been of late years.
That agreeably to this his Majesty's care and good affection, hearing that there was a case of the bishop of Lincoln's, wherein his Majesty's supreme power of granting Commendams, which in respect of the exility of bishoprics is sometimes necessary, was questioned to be overthrown 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, &c.
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.
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 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 cath 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 particular 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.
the man my heart ever told me you were. Ambition would draw me to the latter part of the choice; but in respect of my hearty wishes, that my lord chancellor may live long; and the small hopes I have, that I shall live long myself; and, above all, because I see his Majesty's service daily and instantly bleedeth; towards which, I persuade myself, vainly perhaps, but yet in mine own thoughts firmly and constantly, that I shall give, when I am of the table, some effectual fartherance, as a poor thread of the labyrinth, which hath no other virtue, but an united continuance, without interruption or distraction, I do accept of the former, to be counsellor for the present, and to give over pleading at bar; let the other matter rest upon my proof, and his Majesty's pleasure, and the accidents of time. For, to speak plainly, I would be loth that my lord chancellor, to whom I owe most after the king and yourself, should be locked to his successor, for any advancement or gracing of me. So I ever remain
Your true and most devoted and most obliged servant,
CXLVII. TO SIR GEORGE VILLIERS +
I SEND his Majesty a draught of the act of counconcerning the judges' letter, penned as near as 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. God ever preserve and prosper you. I rest
Your most devoted and bounden servant,
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 for a year since had received advertisements concerning the cause in two entrances, 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.
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 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 many 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 made; his Majesty apprehending the matter to be of so high a nature, commanded his attorney-general to signify his Majesty's pleasure unto the lord chief justice; That in regard of his Majesty's most weighty occasions, and for that his Majesty held it necessary upon the lord of Winton's report, that his Majesty be first consulted with, before the judges proceed to argue it; therefore the day appointed for the judges' argument should be put off till they might speak with his * Dr. Bilson, who died June 18, 1616.
Majesty; and this letter of his Majesty's attorney was, by his Majesty's commandment, openly read as followeth, in hæc verba.
"Ir 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 forth with 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,
This Thursday afternoon, April 25, 1616.
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 the said attorney to the judges of the several benches; and accordingly 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 last in the afternoon, by a servant of your Majesty's attorney-general; and letters of the like effect were on the day following sent from him by his servant to us your Majesty's justices of every of the courts at Westminster. We are and ever will be ready with all faithful and true hearts, according to our bounden duties, to serve and obey your Majesty, and think ourselves most happy to spend our times and abilities to do your Majesty true and faithful service in this present case mentioned in this letter. What information hath been made unto you, whereupon Mr. Attorney doth ground his letter, from the report of the bishop of Winton, we know not: this we
know, 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 K. Edw. III. and the other of the twenty-fifth year of K. Hen. VIII. whereof your Majesty's judges upon their oaths, and accord- | ing to their best knowledge and learning, are bound to deliver their true understanding 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, bat 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."
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 information: but if you list to remember what princely 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, upon pretext of private persons' interest, we sent you that direction; which we account as well to be wounded if it be publicly disputed upon, as 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 WestminsterHall, 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 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 "Trusty and well-beloved counsellors, and trusty the head and fountain of justice under God in our
His Majesty having considered of this letter, by his princely letters returned answer, reporting himself to their own knowledge and experience, 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 powers and prerogatives of the crown, he would not endure to have them Wounded through the sides of a private person; admonishing them also, lastly, of a custom lately entertained, of a greater boldness to dispute the high points of his Majesty's prerogative in a popular and unlawful liberty of argument more than in former times; and making them perceive also how weak and impertinent the pretence of allegation of their cath was in a case of this nature, and how well it might have been spared; with many other weighty points in the said letter contained: which letter also by his Majesty's appointment and commandment was publicly ready in hæc verba.
dominions, and we out of our absolute power and | necessary cause, is no denying or delaying of justice,
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 unwitting 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 ministered 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."
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 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 observed, that ever since his coming to the crown, the popular sort of lawyers have been the men, that most affrontedly in all parliaments have trodden 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. 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 off any hearing or proceeding upon any just or
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.
And afterwards, because there was another just cause of absence for the two chief justices, for that they ought to have assisted the lord chancellor the same day in a great cause of the king's followed by the lord Hunsdon against the lord William Howard in chancery; which cause of the king's especially being so worthy, ought to have had precedency before any cause betwixt party and party. Also whereas it was contained in the judges' letter that the cause of Commendams 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.
Also whereas it was contained in the judges' letter, that the parties called upon them earnestly for justice, his Majesty conceived it to be but pretence; urging them to prove that there was any solicitation by the parties for expedition, otherwise 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.