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"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.

Edw. Coke, Henry Hobart, Laur.
Tanfield, Pet. Warburton, George
Snigge, Ja. Altham, Ed. Bromley,
John Croke, Humphry Winche,
John Dodderidge, Augustin Ni-
cholls, Robert Houghton.

Serjeants-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

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 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

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 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 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."

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 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 trod

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.

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 significa tion 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 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

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.

followed by the Lord Hunsdon against the Lord | plea concerned the king's prerogative, without 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.

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

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. 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

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.

face, to proceed or declare against any the greatest which they conceived to be of a form differing peer or subject of the kingdom; and not only any from all other commendams which have been subject in particular, but any body of subjects or practised. 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,

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 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 proceeds, that had 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 inter

pretation, and that it was against common sense | Reasons why it should be exceeding much for his

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.

G. Cant. Tho. Ellesmere, Canc. Th.
Suffolk, E. Worcester, Pembroke,
Nottingham, Lenox, W. Knollys,
John Digby, Ralph Winwood, Tho.
Lake, Fulke Greville, Jul. Cæsar,
Fra. Bacon.


CEIVED OF MR. ATTORNEY-GENERAL PUBLICLY IN THE EXCHEQUER THE FIRST DAY OF TERM; FOR THE TRUTH WHEREOF I REFER MYSELF TO ALL THAT WERE PRESENT I MOVED to have a reseizure of the lands of George More, a relapsed recusant, a fugitive, and a practising traitor; and showed better matter for the queen against the discharge by plea, which is ever with a "salvo jure." And this I did in as gentle and reasonable terms as might be.

Mr. Attorney kindled at it, and said, "Mr. Bacon, if you have any tooth against me, pluck it out; for it do you more hurt than all the teeth in

your head will do you good." I answered coldly in these very words; Mr. Attorney, I respect you: I fear you not: and the less you speak of your

own greatness, the more I will think of it.

He replied, "I think scorn to stand upon terms of greatness towards you, who are less than little;

less than the least ;" and other such strange light terms he gave me, with that insulting which cannot be expressed.

Herewith stirred, yet I said no more but this: Mr. Attorney, do not depress me so far; for I have been your better, and may be again, when it please the queen.

With this he spake, neither I nor himself could tell what, as if he had been born attorney-general; and in the end bade me not meddle with the queen's business, but with mine own; and that I was unsworn, etc. I told him, sworn or unsworn was all one to an honest man; and that I ever set my service first, and myself second; and wished to God, that he would do the like.

Then he said, it were good to clap a "cap: utlegatum" on my back! To which I only said he could not; and that he was at fault, for he hunted upon an old scent.

He gave me a number of disgraceful words besides; which I answered with silence, and showing that I was not moved with them.

Edward Coke, knighted by King James at Greenwich in 1603; and made lord chief justice of the common pleas, 30 June, 1606.

VOL. II.-63

majesty's service to remove the LORD COKE from the place he now holdeth,* to be Chief Justice of England, and the attorney‡ to succeed him, and the solicitors the attorney.

FIRST, It will strengthen the king's causes greatly amongst the judges: for both my Lord Coke will think himself near a privy counsellor's place, and thereupon turn obsequious; and the attorney-general, a new man, and a grave person, in a judge's place, will come in well to the other, and hold him hard to it, not without emulation between them, who shall please the king best.

Secondly, The attorney-general sorteth not so well with his present place, being a man timid and scrupulous both in parliament and other business, and one that, in a word, was made fit for the late lord treasurer's bent, which was to do little with much formality and protestation: whereas the now solicitor going more roundly to work, and being of a quicker and more earnest temper, and more effectual in that he dealeth in, is like to recover that strength to the king's prerogative, which it hath had in times past, and which is due unto it. And for that purpose there must be brought in to be solicitor some man of courage and speech, and a grounded lawyer; which done, his majesty will speedily find a marvellous change

in his business. For it is not to purpose for the judges to stand well-disposed, except the king's council, which is the active and moving part, put the judges well to it; for in a weapon, what is a back without an edge?

Thirdly, The king shall continue and add reputation to the attorney's and solicitor's place, by this orderly advancement of them; which two

places are the champion's places for his rights and prerogative; and being stripped of their expectations and successions to great place, will wax vile; and then his majesty's prerogative goeth down the wind. Besides, the remove of my Lord Coke to a place of less profit, though it be with his will, yet will be thought abroad a kind of discipline to him for opposing himself in the king's causes; the example whereof will contain others in more awe.

Lastly, Whereas now it is voiced abroad touching the supply of places, as if it were a matter of labour, and canvass, and money; and other persons are chiefly spoken of to be the men, and the great suitors; this will appear to be the king's own act, and is a course so natural and regular, as it is without all suspicion of these by-courses, to the king's infinite honour. For men say now, the king can make good second judges, as he hath

* Of chief justice of the common pleas, having been appointed to that office June 30, 1606.

He was advanced to that office October 25, 1613. Sir Henry Hobart, who had been appointed attorneygeneral, July 4, 1606.

Sir Francis Bacon, who had been sworn solicitor-general June 25, 1607.

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