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 shall double my endeavours. God ever preserve and prosper you. I rest Your most devoted and bounden servant, June 12, 1616. FR. BACON. CXLVIII. Touching the Commendams. (a) At Whitehall the sixth of June, Anno 1616. Present the KING'S MAJESTY. Lord Archbishop of Cant. Lord Wotton. Lord Chancellor. Lord Treasurer. Lord Privy-Seal. Lord Stanhope. Lord Fenton. Mr. Vice-Chamberlain. Master of the Rolls. 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 (a) It is very clear, that this is the act of council referred to in the preceding letter, and drawn up by Sir Francis Bacon: which, being written in a fair manner, I accidentally bought, and have corrected several errors therein. If any remain, as I believe the readers will think there doth; it is because I had no opportunity to peruse the council-books. Stephens. Stephens's first collection, p. 149. who died June 18, 1616. council-table: that there had been a question pleaded and argued concerning commendams; the proceedings wherein had either been mis-reported or mishandled; for his majesty 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 D. Bilson, 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 case 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 argumentation 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 argumen! 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 majesty; and this letter of his majesty's attorney was, by his majesty's commandment, openly read as followeth, in hæc verba. 66 My Lord, "It is the king's express pleasure, that because his majesty's time would not serve to have conference "with your lordship and his judges, touching the cause "of commendams, at his last being in town; in regard of his majesty's other most weighty occasions; "and for that his majesty holdeth it necessary, upon the report which my lord of Winchester, who was "present at the last arguments by his majesty's royal "commandment, made to his majesty, that his majesty be first consulted with, ere there be any further 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 plea"sure be known, upon consulting with him; and to "that end, that your lordship forthwith signify his "commandment to the rest of the judges: whereof your lordship may not fail: and so I leave your lordship to God's goodness." Your loving friend to command, This Thursday afternoon, FR. BACON. That upon this letter received, the lord chief justice returned word to his majesty's said attorney by his servant; That it was fit the rest of his brethren should understand his majesty's pleasure immediately by letters from his said attorney to the judges of the several benches: and 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. 66 Most dread and most gracious Sovereign, "Ir may please your most excellent majesty to be advertised, that this letter here inclosed was de"livered 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 West"minster. 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 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 inheri"tance 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 let"ters 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 let 66 66 66 "ter 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, there"fore 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." 66 Edw. Coke, Henry Hobart, Laur. Tanfield, Pet. Warburton, George Snigge, Ja. Altham, Ed. Bromley, John Croke, Humphry Winche, John Dodderidge, Augustin Nicholls, Robert Houghton. Serjeants Inn, 25 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 perogatives 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 argu ment 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 read in hæc verba. |