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contrary; not only by the argument of serjeant Ch borne, 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 Comméndams 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 thed 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 havep concluded with the laying down and representing of11 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. At torney's letter mentioned no day certain, and that an dry over 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 sophis
try, for that they might in their discretions have prefixed a convenient day, such as there might have been i 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 con-t cerned 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 i 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 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. Where unto 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 there in, 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 shew 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 had