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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 according 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, 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."
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
Serjeant's-Inn, 25th April, 1616.
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 enter tained, 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 oath 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 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
necessary cause, is no denying or delaying of justice but wisdom and maturity of proceeding; and tha there cannot be a more just and necessary cause o 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 jus tice, 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 repre senting 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.
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 granting 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 plea concerned the king's prerogative, without consulting with his Majesty first, and informing his princely judgment, was a thing preposterous; for that they ought first to have made that appear to his Majesty, and so to have given him assurance thereof upon consulting with him.
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?
The chancellor stood up and moved his Majesty, that because this question had relation to matter of law, his Majesty would be informed by his learned counsel first, and they first to deliver their opinions, which his Majesty commanded them to do.
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 that 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 will proceed first in a business whereupon they 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 face, to proceed or declare against any the greatest peer or subject of the kingdom; and not only any subject in particular, but any body of subjects or persons, were they judges, or were they of an upper or lower house of parliament, in case they exceed the limits of their authority, or took any thing from his Majesty's royal power or prerogative; and so concluded, that this challenge, and that in his Majesty's presence, was a wrong to their places, for which he and his fellows did appeal to his Majesty for reparation. And thereupon his Majesty did affirm, that it was their duty so to do, and that he would maintain them therein, and took occasion afterward again to speak of it; for when the lord chief justice said, he would not dispute with his Majesty, the king replied, That the judges would not dispute with him, nor his learned counsel might not dispute with them: so whether they did well or ill, it must not be disputed.
After this the lord chancellor declared his mind plainly and clearly, that the stay that had been by his Majesty required, was not against the law, nor a breach of the judges' oath, and required that the judges' oath itself might be read out of the statute, which was done by the king's solicitor, and all the words thereof weighed and considered.
Thereupon his Majesty and the lords thought good to ask the judges severally their opinions; the question being put in this manner; Whether, if at any time, in a case depending before the judges, his Majesty conceived it to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the mean time, they ought not to stay accordingly? They all, the lord chief justice only excepted, yielded that they would, and acknowledged it to be their duties so to do; only the lord chief justice of the king's bench said for answer, that when the case should be, he would do that which should be fit for a judge to do. And the lord chief justice of the common pleas, who had assented with the rest, added, that he would ever trust the justice of his Majesty's commandment. After this was put to a point, his Majesty thought fit, in respect of the farther day of argument, appointed the Saturday following for the Commendams, to know from
his judges what he might expect from them concerning the same. Whereupon the lord of Canterbury breaking the case into some questions, his Majesty did require his judges to deal plainly with him, whether they meant in their argument to touch the general power of granting Commendams, yea or no? Whereupon all the said judges did promise and assure his Majesty, that in the argument of the said case of Commendams, they would speak nothing which should weaken or draw into doubt his Majesty's prerogative for granting of them; but intended particularly to insist upon the points of lapse and other judicial points of this case, which they conceived to be of a form differing from all other Commendams which have been practised.
The judges also went farther, and did promise his Majesty, that they would not only abstain from speaking any thing to weaken his Majesty's prerogative of Commendams, but would directly and in plain terms affirm the same, and correct the erroneous and bold speeches which had been used at the bar in derogation thereof.
Also the judges did in general acknowledge and profess with great forwardness, that it was their duty, if any counsellor at the law presumed at any time to call in question his Majesty's high prerogative, that they ought to reprehend them and silence them; and all promised so to do hereafter.
Lastly, the two judges that were then next to argue, Mr. Justice Dodderidge and Mr. Justice Winch, opened themselves unto his Majesty thus far; that they would insist chiefly upon the lapse, and some points of uncertainty, repugnancy, and absurdity, being peculiar to this Commendam; and that they would show their dislike of that which had been said at the bar for the weakening of the general power; and Mr. Justice Dodderidge said he would conclude for the king, that the church was void and in his Majesty's gift; he also said that the king might give a Commendam to a bishop, either before or after his consecration, and that he might give it him during his life, or for a certain number of years.
The judges having thus far submitted and declared themselves, his Majesty commanded them to keep the bounds and limits of their several courts, not to suffer his prerogative to be wounded by rash and unadvised pleading before them, or by new invention of law; for as he well knew the true and ancient common law is the most favourable for kings of any law in the world; so he advised them to apply their studies to that ancient and best law, and not to extend the power of any other of their courts beyond their due limits; following the precedents of their best ancient judges in the times of the best government; and that then they might assure themselves that he, for his part, in his protection of them, and expediting of justice, would walk in the steps of ancient and best kings. Whereupon he gave them leave to proceed in their argument.
When the judges were removed, his Majesty that
* Rawley's Resuscitatio, and Stephens's Second Collection, p. 2.
+ Soon after this date Dr. Burgess was presented to the parsonage of Sutton-Colfield in Warwickshire. In 1620 he attended Sir Horace Vere into the Palatinate, when that noble
had forborne to ask the voices and opinions of his council before the judges, because he would not prejudicate the freedom of the judges' opinion, concerning whether the stay of proceedings, that hath been by his Majesty required, could by any construction be thought to be within the compass of the judges' oath, which they had heard read unto them, did then put the question to his council; who all with one consent did give opinion, that it was far from any colour or shadow of such interpretation, and that it was against common sense to think the contrary, especially since there is no mention made in their oath of delay of justice, but only that they should not deny justice, nor be moved by any of the king's letters, to do any thing contrary to law or justice.
I Do think you may do yourself honour, and, that which is more, do a good work; if you will assist and perfect a motion begun, and that upon a good ground, both of submission and conformity, for the restoring of doctor Burgess to preach; † and I wish likewise, that if Gray's-Inn should think good, after he is free from the state, to choose him for their preacher, his Majesty should not be against it: for certainly we should watch him well if he should fly forth; so as he cannot be placed in a more safe auditory. This may seem a trifle, but I do assure you I do scarce know a particular, wherein you may open more honest mouths to speak honour of you, than this. And I do extremely desire there may be a full cry from all sorts of people, especially the best, to speak, and to trumpet out your commendations. I pray you take it to heart, and do somewhat in it. I rest
Your devoted and bounden servant,
June 12, 1616.
CL. TO SIR GEORGE VILLIERS.
THERE is a particular wherein I think you may do yourself honour, which, as I am informed, hath general conducted thither a gallant regiment, the largest for number, and greatest for quality, being much composed of gentlemen, that had been seen. Stephens.
Stephens's First Collection, p. 167
been laboured by my lady of Bedford,* and put in good way by the bishop of Bath and Wells,† concerning the restoring to preach of a famous preacher, one doctor Burgess; who, though he hath been silenced a great time, yet he hath now made such a submission touching his conformity, as giveth satisfaction. It is much desired also by Gray's-Inn, if he shall be free from the state, to choose him for their preacher and certainly it is safer to place him there, than in another auditory, because he will be well watched, if he should any ways fly forth in his sermons beyond duty. This may seem a trifle, but, I do assure you, in opening this man's mouth_to preach, you shall open every man's mouth to speak honour of you; and I confess I would have a full ery of puritans, of papists, of all the world, to speak well of you; and, besides, I am persuaded, which is above all earthly glory, you shall do God good service in it. I pray deal with his Majesty in it. I rest
Your devoted and bounden servant,
June 13, 1616.
CLI. TO SIR GEORGE VILLIERS.
I SEND you enclosed a warrant for my lady of Somerset's pardon, reformed in that main and material point, of inserting a clause [that she was not a principal, but an accessary before the fact, by the instigation of base persons.] Her friends think long to have it despatched, which I marvel not at, for that in matter of life moments are numbered.
I do more and more take contentment in his Majesty's choice of Sir Oliver St. John, for his deputy of Ireland, finding, upon divers conferences with him, his great sufficiency; and I hope the good intelligence, which he purposeth to hold with me by advertisements from time to time, shall work a good effect for his Majesty's service.
I am wonderful desirous to see that kingdom flourish, because it is the proper work and glory of his Majesty and his times. And his Majesty may be pleased to call to mind, that a good while since, when the great rent and divisions were in the parliament of Ireland, I was no unfortunate remembrancer to his Majesty's princely wisdom in that business. God ever keep you and prosper you.
Your true and most devoted and bounden servant, FR. BACON.
1 July, 1616.
My lady of Bedford, so much celebrated by Dr. Donne and Sir William Temple, for the admirable disposition of her garden at Moor Park, was sister and co-heir to the last lord Harrington of Exton; who dying in the entrance of the year 1614, and the 22d of his age, revived in the nation the sense it had of the loss of prince Henry, as being a young nobleman of great hopes and piety. This lady disposed of much of the estate she had from her brother: selling Burley upon the Hill in the county of Rutland to the then marquis of Buckingham, where he afterwards adorned the seat with noble structures, whica were destroyed in the time of our civil wars. But this place has now recovered its ancient splendour at the
CLII. TO SIR GEORGE VILLIERS.§
I THINK I cannot do better service towards the good estate of the kingdom of Ireland, than to procure the king to be well served in the eminent places of law and justice; I shall therefore name unto you for the attorney's place there, or for the solicitor's place, if the new solicitor shall go up, a gentleman of mine own breeding and framing. Mr. | Edward Wyrthington of Gray's-Inn; he is born to eight hundred pounds a year; he is the eldest son of a most severe justicer, amongst the recusants of Lancashire, and a man most able for law and speech, and by me trained in the king's causes. My lord deputy, by my description, is much in love with the man. I hear my lord of Canterbury, and Sir Thomas Laque, should name one Sir John Beare, and some other mean men. This man I commend upon my credit, for the good of his Majesty's service. God ever preserve and prosper you. I rest,
Your most devoted and most bounden servant, FR. BACON.
2 July, 1616.
CLIII. TO SIR GEORGE VILLIERS, ABOUT IRISH AFFAIRS.||
BECAUSE I am uncertain whether his Majesty will put to a point some resolutions touching Ireland, now at Windsor; I thought it my duty to attend his Majesty by my letter, and thereby to supply my absence, for the renewing of some former commissions for Ireland, and the framing a new commission for the wards and the alienations, which appertain properly to me as his Majesty's attorney, and have been accordingly referred by the lords. I will undertake that they are prepared with a greater care, and better application to his Majesty's service in that kingdom, than heretofore they have been; and therefore of that I say no more. And for the instructions of the new deputy, they have been set down by the two secretaries, and read to the board; and being things of an ordinary nature, I do not see but they may pass.
But there have been three propositions and counsels which have been stirred, which seem to me of very great importance; wherein I think myself bound to deliver to his Majesty my advice and opinion, if they should now come in question.
expense, and by the direction of its present lord the earl of Nottingham. Štephens.
+ This bishop was fifth son to Sir Edward Montague, and brother to Edward the first lord Montague of Boughton, a prelate of great learning and eloquence, and very munificent; and by some called king James's ecclesiastical favourite. In 1616 he was translated to Winchester, and dying in two years' time, he was buried in the body of the abbey church at Bath, which with great cost and care he had preserved from the ruins which time and neglect were bringing upon it. Stephens. Stephens's Second Collection, p. 3. Ibid. p. 4. Ibid. P. 5.