2

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 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 Winchester1, 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;

VOL. V.

D. Bilson, who died June 18, 1616.
2 E

besides many other parts of his argument tending to the overthrow of his majesty's prerogative in case of Com

mendams.

The lord of Winchester having made his report, his majesty resume 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 majesty; and this letter of his majesty's attorney was, by his majesty's commandment, openly read as followeth, in hæc verba.

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, erc 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 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."

This Thursday afternoon
April 25, 1616

Your loving friend to command,

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.

MOST DREAD AND MOST GRACIOUS SOVEREIGN,

"IT may please your most excellent majesty to be advertised, that this letter here inclosed 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 inajesty, 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 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."

Serjeant's-Inn, 25th April, 1616.

EDW. COKE,
HENRY HOBART,
LAUR. TANFIELD,
PET. WARBERTON,
GEORGE SNIGGE,
JA. ALTHAM,

ED. BROMLEY,
JOHN CROKE,
HUMPHRY WINCHE,
JOHN DODDeridge,
AUGUSTIN NICHOLLS,
ROBERT HOUGHTON.

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 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.

66

JAMES REX.

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 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