VI
Appendix I:
Official Acts Related to Sir Edward Coke’s Career
A. The High Commission (Coke refuses to appear), 1611
Ed.: Coke, the great critic of the High Commission, was ordered to sit as its member, with this result. Coke’s notes of this conference were first printed in volume 12 of the Reports, at 88.
High Commission.
(1611) Michaelmas Term, 9 James I.
Memorandum, that upon Thursday, in this term, a High Commission in Causes Ecclesiasticall was published in the Great Chamber of the Arch-bishop at Lambeth, in which I, with the chief Justice, chief Baron, Justice Williams, Justice Crook, Baron Altham, and Baron Bromley, were named Commissioners, amongst all the Lords of the Councill, divers Bishops, Attorney and Solicitor, and divers Deans and Doctors of the Cannon and Civil Lawes; and I was commanded to sit by force of the said Commission, which I refused for these causes:
1. For this, that I, nor any of my Brethren of the Common Pleas, were acquainted with the Commission, but the Judges of the Kings Bench were.
2. That I did not know what was contained in the new Commission, and no Judge can execute any Commission with a good conscience withoutknowledge; and that alwaies the gravity of the Judges hath been to know their Commission, for Tantum sibi est permissum, quantum commissum: and if the Commission be against Law, they ought not to sit by vertue of it.
3. That there was not any necessity thatI shouldsit,whounderstoodnothing of it, so long as the other Judges were there, the advice of whom had been had in this new Commission.
4. That I have endeavoured to inform my self of it, and have sent to the Rolls to have a Copy of it, but it was not enrolled.
5. None can sit by force of any Commission, until he hath took the Oath of Supremacy, according to the statute of 1 Eliz. And for this, if they will read the Commission so that we may hear it, and have a Copy to advise upon it, then I will either sit or shew cause to the contrary. But the Lord Treasurer would for divers reasons perswade me to sit, which I utterly denied.
And to this the chief Justice, chief Baron, and some others of the Judges, seemed to incline; upon which the Lord Treasurer conferred in private with the Arch-bishop Bancroft, who said to him, that he hadappointeddiverscauses of Heresie, Incest, and enormous Crimes to be heard upon this day, and for that he would proceed; but at last he was content that the Commission should be solemnly read, and so it was, which contained three great Skins of parchment, and contained divers points against the Laws and Statutes of England: and when this was read, all the Judges rejoyced that they did not sit by force of it: And then the Lords of the Council, Viz. The Arch-bishop, the Lord Treasurer, the Lord privy Seal, the Lord Admiral, the Lord Chamberlain, the Earl of Shrewsbury, the Earl of Worcester with the Bishops, took the Oath of Supremacy and Allegeance; and then we as Commissioners were required to take the Oath, which I refused until I had considered of it: But, as the Subject of the King, I and the other Judges also took the oaths of Supremacy and Allegeance.
Then the Lord Arch-bishop made an Oration in commendation of the care and providence of the King, for the peace and quiet of the Church; Also he commended the Commissioners, also the necessity of the Commission to proceed summarily in these days, wherein sins of detestable nature, and factions, and Schisms did abound, and protested to proceed sincerely by force of it; and then he caused to be called a most blasphemous Heretick, and after him another, who was brought thither by his appointment, to shew to the Lords and the Auditory the necessity of that Commission.
And after, the Arch-bishop came to the chief Justice and to me, and promised us, that we should have a Copy of the Commission, and then I should observe the diversity between the old Commission and this: and all the time that the long Commission was in reading, the Oath in taking, and the Oration made, I stood, and would not sit, as I was requested by the Arch-bishop and the Lords; and so by my example did all the rest of the Justices.
And the Arch-bishop said, that the King had commanded him to sit by vertue of this new Commission, in some open place, and at certain days: and for that cause he appointed the great Chamber at Lambeth in Winter, and the Hall in the Summer; and every Thursday in the Term time, at two of the Clock in the afternoon, and in the fore noon he would have a Sermon for the better informing of the Commissioners of their duty, in the true andsincere execution of their duties.
B. Commendams and the King’s Displeasure
Ed.: In a case concerning the powers of the King, or others, to grant a commendam, or temporary church office, the King sought to delay the court until he could appear. When Coke did not wait or consult, the King was displeased, but Coke stood his ground, promising “to do what should be fit for a judge to do.” These notes were printed in the Acts of the Privy Council, 1616.
|[303] At Whitehall, the 6 of June, 1616.
Present: The Kinges Majestie, Lord Archbishop of Canterburie, Lord Chancellor, Lord Treasurer, Lord Privie Seale, Lord Stewarde, Lord Chamberlein, Lord Viscount Fenton, Lord Bishop of Winchester, Lord Zouch, Lord Knollis, Lord Wotton, Lord Stanhope, Mr. Vice-Chamberlein, Mr. Secretary Winwoode, Mr. Secretary Lake, Mr. Chancellor of the Exchecquer, Master of the Roles.
His Majestie, having this day given order for meeting of the Councell, and that all the Judges (being twelve in nomber) should bee sent for to bee present; when the Lordes were sett, and the Judges readie attendinge, his Majestie came himself in person to Councell, and openned unto them the cause of that assembly; which was, that hee had called them together concerninge aquestion that had relacion to noe private person, but concerned God and the Kinge, the power of his Crowne, and the state of his Church, whereof hee was Protector; and that there was noe fitter place to handle it then at the head of his Councell Table; that there had ben a question pleaded and argued concerninge commendams, the proceedinges wherein had either ben misreported, or mishandled; for his Majestie a yeare since had receaved advertizement concerning that case in twoe extreames: by some, that it did trench farr into his Prerogative Royall, in the generall power of grauntinge commendams; and by others, that the doubt rested only upon a special nature of a commendam, such as in respect of the incongruitie and exorbitant forme thereof might bee questioned, without impeachinge or weakeninge the generall power at all.
Whereupon his Majestie, willinge to knowe the true state thereof, comaunded the Lord Bishop of Winchester and Mr. Secretarie Winwoode to bee present at the next argument, and to reporte the state of the question and proceedinges unto his Majestie; but Mr. Secretary Winwoode, being absent by occasion, the Lord [Bishop] of Winchester only was present, and gave information to his Majestie of the particulars thereof; which his Majestie commaunded him to report to the Boarde. Whereupon the Lord [Bishop] of Winchester stoode up and reported: That Sergeant Chibborne (who argued the case against the commendams) had maintayned divers assertions andpositions very prejudiciall to his Majesty’s Prerogative Royall:
As first, that the translacion of bishopps was against the cannon lawe, and, for authoritie, vouched the cannons of the Councell of Sardis.
|[304] That the Kinge had noe power to graunt commendams, but in case of necessitie.
That there could bee noe necessitie, because there was noe neede of augmentacion of livinges, for noe man was bounde to keepe hospitallitie above his meanes.
Besydes manie other partes of his argument tending to the overthrowe of his Majesty’s prerogative in cases of commendam.
The Lord [Bishop] of Winchester havinge made this reporte, his Majestie resumed his former narrative, lettinge the lordes knowe that after the Lord [Bishop] of Winchester had made unto his Majestie a reporte of that which passed at the argument of the case, like in substaunce to that which hee had now made, his Majestie, apprehendinge the matter to bee of soe hiegh a nature, commaunded his Attorney Generall to signifie his Majesty’s pleasure to the Lord Chiefe Justice; that in regarde of his Majesty’s other most waighty occasions, and for that his Majestie helde it necessary (upon the Lord [Bishop] of Winchester’s reporte), that his Majestie bee first consulted with, before the Judges proceeded to argument; therefore the day appointed for the Judges’ arguments should bee putt of, till they might speake with his Majestie. And this letter of his Majesty’s Attorney was by his Majesty’s comandment openly read, which followeth in haec verba.
My Lord,
It is the Kinges expresse pleasure that, because his Majesty’s times would not serve to conferr with your lordship and his Judges, touchinge the case of the commendams, at his last beinge in towne, in regarde of his Majestie’s other most waightie occasions; and for that his Majestie holdeth it necessarie, upon the reporte which my Lord of Winchester (who was present at the last argument, by his Majesty’s royall commandement) made to his Majestie that his Majestie bee first consulted with, ere there bee anie further proceedinge by argument of anie of the Judges, or otherwise; therefore that the day appointed for the further proceedinge of argument by the Judges in that case, bee putt of, till his Majesty’s further pleasure bee knowne upon consultinge with him. And, to that ende, that your lordship forthwith signifie his commaundement to the rest of the Judges; whereof your lordship may not faile. And soe I leave your lordship to God’s goodness.
Your lordship’s lovinge freinde to comaunde.
Fr. Bacon.
This Thursday, at afternoone, the 25th day of Aprill, 1616.
That upon this letter receaved, the Lord Chiefe Justice retorned worde to his Majesty’s said Attorney by his servaunt, that it was fitt the rest of his bretheren should understaunde his Majesty’s pleasure ymediately by letter from his said Attorney to the Judges of the severall Benches, and accordingly it was donn.
Whereupon all the said Judges assembled, and by their letter under their haundes certefyed his Majestie that they helde those letters (importinge the significacion aforesaid) to bee contrary to lawe, and such as they could not yeild to the same by their oath; and that thereupon they had proceeded at the day, |[305] and did nowe certefie his Majesty thereof; which letter of the Judges his Majestie alsoe commaunded to bee openly read, the tenor whereof followeth, in haec verba—
Most dread and most gracious Soveraigne.
It may please your most excellent Majestie to bee advertized that this letter inclosed was delivered to mee, your Chiefe Justice, on Thursday last in the afternoon, by a servaunt of your Majesty’s Attorney Generall,andletters of like effect were, on the day followinge, sent from him by his servaunt to us, your Majesty’s other Justices of every of your Courtes at Westminster. Wee are and ever wilbe readie with all faithfull and true hartes, accordinge to our bounden duties to serve and obey your Majestie,andthinkeourselves most happie to spende our lives and abillities to doe your Majestie faithfull and true service. In this present case, mencioned in this letter, what informacion hath ben made unto yow (whereupon Mr. Attorneydothground his letter), from the report of the Bishop of Winchester, wee knowe not. This wee knowe, that the true substance of the case summarily is thus. It consisteth principally upon the construccion of twoe Acts of Parliament, the one of the 25 yeare of King Edward 3, and the other of the 25 yeare of King Henry 8; whereof your Majesty’s Judges, upon their oathes, and accordinge to their best knowledge and learninge, are bounde to deliver the true understaundinge faithfully and uprightly. And the case is betweene subjects for private interrest and inheritaunce, earnestly called on for justice and expedition. Wee holde it our duties to informe your Majestie that our oathe is in theis expresse wordes: That in case anie letters come unto us contrary to lawe, that wee doe nothinge by such letters, but certefie your Majestie thereof, and goe forth to doe the lawe, notwithstaundinge the same letters. Wee have advisedly considered of the said letters of Mr. Attorney, and with one consent doe holde the same to bee contrary to lawe, and that wee could not yeild to the same by our oath; assuredly persuadinge ourselves that your Majestie, beinge truly informed that it staundeth not with your royall and just pleasure to give way to them, and therefore knowinge your Majesty’s zeale to justice, and to bee most renowned therefore, wee have, accordinge to our oathes, and duties (at the day openly prefixed the last tearme) proceeded, and thereof certefyed your Majestie, and shall ever pray to the Almightie for your Majestie in all honor, health, and happiness longe to raigne over us.
Your Majesty’s most humble and faithfull subjects and servaunts,
Edw. Coke, Henry Hobart, Laur. Tanfeilde, P. Warburton, Geo. Snigge, James Altham, Edw. Bromley, Jo. Croke, H. Winche, John Doddridge, Augustine Nicolls, Rob. Houghton.
Serjants’ Inne, 27 Aprill.
His Majestie, havinge considered of this letter, did by his princely letters retorne aunsweare, reportinge himself to their owne knowledge and experience, what princely care hee had ever had, since his comeinge to the Crowne, to have justice duly administred to his subjects with all possible expedicion, and |[306] how farr hee was from crossinge or delayinge of justice, wheretheinterrest of anie private partie was questioned; but, on the other syde, expressinge himself that where the case concerned the hiegh powers and prerogatives of his Crowne, hee would not endure to have them wounded through the sydes of a private person, admonishinge them alsoe of a custome lately entertayned, of a greater boldnes to dispute the hiegh pointes of his Majesty’s prerogative, in a popular and unlawfull libertie of argument, more then in former times, and makeinge them perceave alsoe howe weake and impertinent the pretence or allegacion of their oath was in a case of this nature, and howe well it might have ben spared; with manie other waightie pointes in the said letter contayned; which letter alsoe, by his Majesty’s commaundment, was publickely read, and followeth in haec verba:—
Trustie and well-beloved Councellor, and trustie and wel-beloved; wee greete yow well. Wee perceave by your letter that you conceave the commaundement given yow by our Attorney Generall, in our name, to have proceeded upon wronge informacion. But if yee list to remember, what princely care wee have ever had, since our comeinge to this Crowne, to see justice duly administred to our subjects with all possible expedicion, and howe farr wee have ever benn from urginge the delay thereof in anie sorte, yee may easely persuade yourselves that it was noe smale reasonwhich moved us to send yow that direccion. Yee might very well have spared your labor in informeinge us of the nature of your oath, for, although wee never studied the common lawe of Englaunde, yet are wee not ignoraunt of anie pointes which belonnge to a kinge to knowe. Wee are therefore to enforme yow hereby, that wee are farr from crossinge or delayinge anie thinge which may belonnge to the interrest of anie private partie in this case. But wee cannot bee contented to suffer the prerogative royall of our Crowne to be wounded, though the sydes of a private person. Wee have noe care at all which of the parties shall wynn his processe in this case, soe the right prevaile, and that justice bee duly administered. But upon the other parte, wee have reason to foresee, that nothinge be donn in this case which may wound our prerogative in generall; and, therefore, soe that wee may be sure that nothinge shalbe debated amongst yow, which may concerne our generall power of givinge commendams, wee desire not the parties to have an hower’s delay of justice. But, that our prerogative should not bee wounded in that regarde for all times hereafter, upon pretext of a private partie’s interrest, wee sent yow that direccion; which wee accounte to be wounded aswell, if it bee publickly disputed upon, as if anie sentence were given against it. Wee are therefore to admonish yow that, since the prerogative of our Crowne hath ben more boldly dealte withall in Westminster Hall duringe the time of our raigne then ever it was before in the raignes of divers princes ymediatly precedinge us, that wee will noe longer endure that popular and unlawfull libertie; and, therefore, were wee justly moved to sende yow that direccion to |[307] forbeare to meddle anie further in a case of soe tender a nature, till wee had further thought upon it. Wee have cause inded to rejoyce of your zeale for the speedie execution of justice; but wee would bee gladd that all our good subjects might soe finde the fruites thereof, as that noe pleas before yow were of older date then this is. But as to your argument which yow found upon your oath, yow give our predecessors, who first founded that oath, a veryuncharitablemeetinge, in pervertinge their intention and zeale to justice, to make a weapon of it to use against their successors. For, although your oath bee, that yow shall not delay justice betwixt anie private parties, yet was it not meant that the Kinge should thereby receave harme, before hee bee forewarned thereof. Neither can yee denye but that every tearme yee will, out of your owne discretions, for reasons knowne unto yow, put of either the hearinge or determininge of an ordinary cause amongst private persons, till the next tearme followinge. Our pleasure therefore is, who are the heade and fountaine of justice under God, in our dominions, and wee, out of our absolute authoritie royall, doe commaunde yow, that yow forbeare to meedle anie further in this plea, till our comeinge to the towne, and that out of our owne mouth yow may heare our pleasure in this busines; which wee doe only out of the care wee have that our perogative may not receave an unwittinge and indirect blowe, and not to hinder justice to bee ministred to anie private parties; which noe importunitie shall persuade us to move yow in, like as only for avoydinge the unreasonnable importunitieofsuitors in their owne particular, that oath was by our predecessors ordayned to be ministred unto yow. Soe wee hartely wish yow well to fare.
Postscript.—Yow shall upon the receipt of this our letter call our Attorney Generall unto yow, who will informe yow of the particular pointes which wee are unwillinge should bee publickly disputed in this case.
This letter beinge read, his Majestie resorted to take into his consideration the partes of the Judges’ letter, and other their proceedinges in that cause, and the errors therein comitted and contayned: which errors his Majestie did sett forth to bee both in matter and manner: in matter, as well by way of omission as comission; for omission, that it was a faulte in the Judges that when they hearde a Councellor at the barr presume to argue against his Majesty’s prerogative (which in this case was in effect his supremacy), they did not interrupt him, and reprove sharply that loose and bold course of disaffirmeinge and impeachinge thinges of soe hiegh a nature, by discourse; especially since his Majestie had observed, that ever since his comeinge to this Crowne thepopular sorte of lawiers have ben the men that most affrontedly in all Parlaments have troden upon his prerogative; which beinge most contrary to their vocation of anie men, since the lawe, nor lawyers, can never bee respected if the Kinge bee not reverenced, it therefore best became the Judges of anie to cheque and brydle such impudent lawyers, and in their severall Benches to disgrace them that beare soe litle respect to the King’s authoritie and prerogative. That his Majestie had a doble prerogative, whereof the one was ordinary, and had relacion to his private interrest, which mought bee, and was, every day disputed in Westminster Hall. The other was of a hiegher nature, referringe to his supreame and imperiall power and soveragnitie, which ought not to bee disputed or handled in vulgar argument; but that of late the Courtes of the |[308] Common Lawe were growne soe vaste and transcendent, as they did both meddle with the King’s prerogative, and had incroached upon allother Courtes of Justice, as the High Commission, the Councells established in Wales and Yorke, the Courte of Requests. Concerninge that which might be tearmed Commission, his Majestie tooke exception to the Judges’ letter, both in matter and forme. For matter, his Majestie did plainely demonstrate that, whereas it was contayned in the Judges’ letter, that the significacion of his Majesty’s pleasure as aforesaid was contrary to lawe and not agreeable to the oath of a Judge, that could not bee.
First, for that the puttinge of hearinge, or proceedinge upon, just and necessary cause is no denyinge or delay of justice, but a wisedome and maturitie of proceedinge, and that there cannot bee a more just and necessary cause of stay then the consultinge with the Kinge, when the cause concernes the Crowne, and that the Judges did dayly put of causes upon lighter occasions. And likewise his Majestie did desire to knowe of the Judges how his callinge them to consulte with him was contrary to lawe, which they never could aunsweare unto.
Secondly, that it was noe bare supposition or surmize that this case concerned the Kinges prerogative, for that it had ben directed and largly disputed at the barr, and the very disputinge thereof in a publicke audience is both daingerous and dishonorable to his Majestie.
Thirdly, that the manner of puttinge of which the Kinge required, was not infinite, nor for lounge time, but grounded upon his Majesty’s waighty occasions, which were notorious; by reason whereof hee could not speake with the Judges before the argument, and that there was a certaine expectation of his Majesty’s speedie retorne at Whitsuntide, and likewise that the case had ben soe lately argued, and could not receave judgment till Easter tearme next, as the Judges themselves afterwardes confessed.
And lastlie, because there was another just cause of absence for the twoe Cheife Justices, for that they ought to have assisted the Lord Chancellor the same day in a great cause of the Kinges, followed by the Lord Hunsdon against the Lord William Howarde in Chancerie; which cause of the Kinges (specially beinge soe waightie) ought to have had precedence before anie cause betweene partie and partie.
Also, whereas it was contayned in the Judges’ letter that the case of the commendams was but a case of private interrest betweene partie and partie, his Majestie shewed plainely the contrary, not only by the argument of Serjaunt Chibborne, which was before his commaundement, but by the argument of the Judges themselves (namely Justice Nicholls), which wasafter;butespecially since one of the parties is a Bishopp, who pleads for the commendam, only by the virtue of his Majesty’s prerogative.
Also, whereas it was contayned in the Judges’ letter that the parties called upon them earnestly for justice, his Majestie conceaves it to bee but pretence, urgeing them to prove that there |[309] was anie sollicitation by the parties for expedicion, otherwise then in an ordinary course of attendaunce, which they could never prove.
As for the forme of the letter, his Majestie noated that it was a newe thinge and very undecent, and unfitt for subjects to disobey the Kinges commaundement, but most of all to proceede in the meanetime, and to retorne unto him a bare certificate: whereas they ought to have concluded with the layinge downe and representinge of their reasons modestly unto his Majestie, why they should proceede, and soe to have submitted the same to his princely judgment, expectinge to knowe from him wheather they had given him satisfaccion.
After this his Majesty’s declaration, all the Judges fell downe upon their knees, and acknowledged their error, for matter of forme, humbly cravinge his Majesty’s gracious favour and pardon for the same.
But for the matter of the letter, the Lord Cheife Justice of the Kinges Bench entred into a defence thereof, the effect whereof was, that the stay required by his Majestie was a delay of justice, and, therefore, contrary to lawe and the Judges’ oath; and that the Judges knewe well amongst themselves, that the case (as they meant to handle it) did not concerne his Majesty’s prerogative of graunt of commendams, and that if the day had not helde by the notcomeinge of the Judges, the suite had ben discontinewed; which had ben a faylinge in justice, and that they could not adjourne it, because Mr. Attornei’s letter mencioned noe day certaine, and that an adjornment must alwaies bee to a day certaine.
Unto which aunsweare of the Chiefe Justice, his Majestie did replye, that for the last conceipt, it was meere sophistrie, for that they might in their discretions have prefixed a convenient day, such as there might have ben time for them to consult with his Majestie before the same, and that his Majestie leafte that pointe of forme to themselves.
And for that other pointe, that they should take upon them peremptorily to discerne whether the case concerned the Kinges prerogative, without consultinge with his Majestie first, and informeinge his princely judgment, was a thing preposterous, for that they ought first to have made that appeare to his Majestie, and soe to have given him assurance thereof, upon consultacion with him.
And as for the mayne matter, that it should bee against the lawe, and against their oath, his Majestie sayde hee had sayed enough before; unto which the Lord Chiefe Justice in effect had made noe aunsweare, but only insisted upon the former opinion; and therefore the Kinge required the Lord Chancellor to deliver his opinion upon that pointe, whether the stay that had ben required by his Majestie were contrary to lawe, or against the Judges’ oath.
The Lord Chancellor stoode up, and moved his Majestie that, because this question had relacion to matter of lawe, his Majestie would bee informed by his learned councell first, and they first to deliver their opinion, which his Majestie commaunded them to doe.
Thereupon his Majesty’s Attorney Generall gave his opinion that the puttinge of the day in manner as was required by |[310] his Majestie (to his understaundinge) was without all scruple noe delay of justice, nor dainger of the Judges’ oath, insistinge upon some of the reasons which his Majestie had formerly openned, and addinge that the letter hee had writt in his Majesty’s name was noe imperious letter, as to say: That his Majestie, for certaine causes, or for causes knowne to himself, would have them put of the day, but plainely and fairely expressed the causes unto them; for that the Kinge conceaved, upon the Lord [Bishop] of Winchester’s reporte, that the cause concerned him, and that his Majestie would willingly have spoken to them before, but by reason of his important busines could not, and therefore required a staye till they might conveniently speake with him, which they knewe could not bee lounge; and in the conclusion of his speech wished the Judges seriously to consider with themselves whether they were not in greater dainger of breach of their oath by their proceedinge, then they could have ben by their stay. For that it is parte of their oath to counsell his Majestie when they are called; and if they will proceede in a busines first, whereupon they are called to councell, and will councell him when the matter is past, it is more then a simple refusall to give him councell; and soe concluded his speech, and the rest of the learned councell consented to his opinion.
Whereupon the Lord Chiefe Justice of the King’s Bench (aunswearinge nothing to the matter) tooke exceptions that the Kinges councell learned should pleade or dispute with the Judges, for (hee sayde) they were to pleade before the Judges, and not to dispute with them. Whereunto the Kinges Attorney replyed, that hee found that exception strainge, for that the King’s learned councell were by oath and office (and much more when they had the Kinges expresse commaundement), without feare of anie man’s face, to proceede or declare against anie, the greatest peere or subject of the kingdome, and not only anie subject in particular, but any boddie of subjects, or persons, were the[y] Judges, or were they an upper or lower house of Parlament, in case that they exceede the limitts of their authoritie, or take anie thinge from his Majesty’s royall power, or prerogative. And soe concluded that his challendge, and that in his Majesty’s presence, was a wronge to their places, for which hee and his fellowes did appeale to his Majestie for reparacion. And thereupon his Majestie did affirme that it was their dutie soe to doe, and that hee would mayntaine them therein, and tooke occasion afterwardes againe to speake of it. For when the Lord Chiefe Justice sayde hee would not dispute with his Majestie, the Kinge replyed, that the Judges would not dispute with him, nor his learned councell might not dispute with them; soe, whether they did well, or ill, it must not bee disputed.
After this the Lord Chancellor delivered his opinion, cleerely and plainely, that the stay which had beene by his Majestie required was not against lawe, nor any breach of a Judge’s oath, and required that the oath itself might bee read out of the statute, which was donn by the Kinges Sollicitor, and all the wordes thereof waighed and considered.
|[311] Thereupon his Majestie and the Lordes thought good to aske the Judges severally their opinion; the question beinge put in this manner: Whether if at anie time in a case dependinge before the Judges, which his Majestie conceaved to concerne him, either in power or profitt, and thereupon required to consult with him, and that they should stay proceedings in the meanetime, they ought not to stay accordingly. They all (the Lord Chiefe Justice only excepted) yeilded that they would, and acknowledged it to bee their dutie soe to doe; only the Lord Chiefe Justice of the King’s Bench sayd for aunsweare that when that case should bee, hee would doe that should bee fitt for a Judge to doe, and the Lord Chiefe Justice of the Common Pleas, who had assented with the rest, added, that hee would ever trust the justnes of his Majesty’s comaundement.
After this was put to a pointe, his Majestie thought fitt, in respect of the further day of argument appointed the Saturday followeinge for the commendams, to knowe from his Judges what hee might expect from them concerninge the same. Whereupon the Lord of Canterburie breakeinge the case into some questions, his Majestie did require his Judges to deale plainely with him, whether they meant in their argument to touch the generall power of grauntinge commendams, yea or noe. Whereupon all his said Judges did promisse and assure his Majestie that, in the argument of the said case of commendams, they would speake nothinge which should weaken, or drawe into doubte, his Majesty’s prerogative for the graunting of them, but intended particularly to insist upon the pointe of the laps, and other individuall pointes of this case, which they conceaved to bee of a forme differringe from all other commendams which have ben practized.
The Judges alsoe went further, and did promise his Majestie that they would not only abstaine from speakeinge anie thinge to weaken his Majesty’s prerogative of commendams, but would directly and in plaine tearmes affirme the same, and correct the erronious and bold speeches which had ben used at the barr in derogation thereof.
Alsoe, all the Judges did in generall acknowledge and professe, with greate forwardnes that it was their dutie, if anie councellor at the barr presumed at anie time to call in question his Majesty’s hiegh prerogatives and regallities, that they ought to reprehende them and silence them; and all promised soe to doe hereafter.
Lastly, the twoe Judges, which were then next to argue, Mr. Justice Dodridge and Mr. Justice Winche, openned themselves unto his Majestie thus farr, that they would insist chiefely upon the laps, and some pointes of uncertaintie, repugnancy and absurditie, beinge peculiar to this commendam, and that they would shewe their dislike of that which had ben sayde at the barr for the weakeninge of the generall power; and Mr. Justice Doddridge sayde that he would conclude for the Kinge that the Church was voyde, and in his Majesty’s guifte; and alsoe sayde |[312] that the Kinge might give a commendam to a Bishop, either before or after his consecration, and that hee might either give it him duringe his life, or for a certaine nomber of yeares.
The Judges havinge thus farr submitted and declared themselves, his Majestie admonished them to keepe the boundes and lymitts of their severall Courtes, not to suffer his prerogative to bee wounded by rash and unadvised pleadinge before them, or by newe inventions of lawe. For as hee well knewe that the true and ancient common lawe is the most favourable for kinges of anie lawe in the worlde; soe hee advised them to apply themselves to the studie and practize of that ancient and best lawe, and not to extende the power of anie of their Courtes beyounde their due lymitts, followinge the president of the best ancient Judges, in the times of best Govermentes, and that then they might assure themselves that hee for his parte in the proteccion of them and expediting of justice, would walke in the stepps of the ancient and best kinges. And thereupon gave them leave to proceede in their argument.
When the Judges were removed, his Majestie, that had forborne to aske the votes and opinions of his councell before the Judges, because hee would not prejudicate the freedome of the Judges’ opinions concerninge the point; whether the stay of proceedinges that had been by his Majestie required, could by anie construccion bee thought to bee within the compasse of the Judges’ oath (which they had hearde reade unto them), did then put the question to his Councell, who all with one consent did give opinion that it was farr from anie colour or shadowe of such interpretacion, and that it was against common sence to thinke the contrary, especially since there is noe mention made in their oath of the delay of justice, but only that they shall not deny justice, nor bee moved by anie of the Kinges letters to doe any thinge contrary to lawe, or justice.
G. Cant., T. Ellesmere, Canc., T. Suffolke, E. Worcester, Lenox, Nottingham, Pembroke, W. Knollis, John Digbye, Raphe Winwoode, Tho. Lake, Fulk Grevill, Jul. Caesar, Fr. Bacon.
C. Coke’s Hearing, June 26, 1616.
Ed.: Following the commendams argument, effectively staged by Francis Bacon, Coke’s dismissal was but a matter of time. These notes were printed in the Acts of the Privy Council, 1616.
June 26.
It may please your most excellent Majestie.
The Lorde Chiefe Justice, presentinge himself on his knee at the Boarde, your Sollicitor signifyed: That hee was by your commaundement to charge him for certaine acts and speeches, wherein your Majestie was much unsatisfyed; which were in number three.
1. First, an act donn.
2. Secoundly, speeches of hiegh contempt utterred in a seate of justice.
3. Thirdly, uncomely and undutifull carryage in the presence of your Majestie, your Privie Councell, and your Judges.
Concerninge the first, which was the act. It was donn when hee was in place of trust, and concerned a statute of 12,000li. taken of Sir Christopher Hatton, to the use of Sir Edward Coke, when hee was your Majesty’s Attorney-Generall; not to pay a debte of good value, due unto your Majestie, nor to accept of a discharge for the same, and for the better streingtheninge of that statute there was likewise a bond taken of 6,000li., with suerties to the same effect; soe that Sir Christopher Hatton lay charged under the penaltie of 18,000li. not to pay the debte, to agree to noe surrender, discharge, or release, nor anie way to assent thereunto. That this offence was aggravated by denyall and protestacion made of late by the Lord Chiefe Justice, that hee was not privie to the condicion of the defeasaunce; whereas the statute was taken to his use, the defeasaunce by indenture, whereof Sir Christopher Hatton’s part was founde, but the other parte was not founde. That he was privie to the peninge of it, inserted wordes with his owne haunde, and that Mr. Walter and Mr. Bridgman, his owne councell, were witnesses to it.
The secounde pointe was, wordes spoken in the Kinges Bench, the last day of Hillary tearme last, in a case of Glanvile and Allen, whereof your Sollicitor made a narrative relacion, and charged the Lord Chiefe Justice to have given too much harte and incoragement to that cause. That hee had too constauntly directed the jury, turned them thrice from the barr, threatenned to comitt them, examined them by the pole, and tolde them that they had ben tamperred withall. That hee had given warneinge to the councellors at the barr that, if they sett their haundes to a Bill after judgement, hee would |[338] foreclose them the Courte; and further in another case the same day sayde, that the Common Lawe of Englaunde would bee overthrowen, and that the light of the lawe would bee obscured, and that all this was confirmed by good wittnes.
The thirde and last pointe was, his undecent behaviour before your Majestie, your Councell, and your Judges; and that consisted of twoe partes. First, the exception hee tooke at your learned councell in your presence for speakinge by your commaundement.
The secound, that your Majestie havinge openned yourself in the case of commendams, and satisfyed the Judges, that your Majestie sendinge unto them had noe intent to delay justice; and question beinge putt to the rest of the Judges, whether they did hold it for a delay of justice, that your Majestie had sent in that cause, or if you shoulde send hereafter in a like case, wherein your Majesty’s prerogative were interressed, the rest of the Judges submittinge themselves, hee alone dissented from all the rest.
This beinge the effect of your Sollicitor’s charge, the Lord Chiefe Justice made aunsweare: That hee would, by their lordships’ favours, beginn with the last, and sayde, that for the pointe of challendginge and takeinge exception at your Majesty’s councell learned speakinge in the case of comendams by your Majesty’s commaundement, hee acknowledged it for an error, and humbly submitted himself.
To the pointe, that upon the question asked the Judges touchinge stay of proceedinges, hee did deny, when all the rest of the Judges did yeild, his aunsweare was: that the question included a multitude of particulars, which suddenly occurringe to his minde, caused him to make that aunsweare, that when that time should bee, hee would doe that which should become an honest and just Judge.
For the bonde, he sayeth that that assuraunce was in hammeringe a yeare and a half. They were elephantini libri; and nowe, twelve yeares beinge past, it was noe marvaile if his memorie were shorte, specially since about that time hee was imployed, first in the greate services of the priests’ treason, and Cobham’s treason, and the next yeare in the powder treason; and that, if anie thinge have slipped him in that multitude of businesses, lett theis services blott out his errors.
Secoundly, hee did use an argument ab impossibili, which was, that the debte remayneinge at that time was 33,000li., and that younge Mr. Hatton’s meanes were very meane, not above 100 markes a yeare; and therefore impossible for him to redeeme it; and that, as soone as it came to a possibillitie, when hee first heard of Sir Robert Rich his offer, hee then submitted it, before such time as hee remembred the statute or defeasaunce.
Thirdly, cui bono: Hee sayd hee never had anie profitt by it, but the presentacion to a benefice; and all the rest was his wive’s.
Fowerthly, the Crowne was content with the installment, and hee did but take bondes to continewe it; and throughout all this, hee submitted himself to your Majestie and the Boarde, sayinge Actus non facit reum, nisi mens sit rea.
|[339] For his speeches in the Kinges Bench, etc., hee sayeth first, that whatsoever was donn, was donn by common consent, and for those speeches, manie of them were spoken, and hee knewe by whom they were spoken, but not by himself: and then offerred fower consideracions.
1. That the commission (unto which nevertheles hee did in noe wise except) was ad informandum non ad convincendum.
2. That there were but witnesses on one syde.
3. That the interrogatories might bee drawne too shorte.
4. That it was concerninge wordes spoken fower moneths agoe, which beinge spoken amongst manie might bee reported diversly, and thereupon produced a paper writen by himself, contayneinge (as hee sayeth) the true passages of that day; which paper wee present to your Majestie herewithall, beinge, as hee sayd, sett downe by himself the next after, sedato animo.
And touchinge the wordes: that the common lawe would bee overthrowen, and that the Judges would have but little to doe at Assizes, because the light of the lawe would bee obscured, hee confesseth the wordes, but sayth they were not spoken the same day, but another time in a cause of Sir Anthonie Mildmaies; and added, that hee will not maintaine the differrence betweene the twoe Courtes, nor bringe it into question; yet, if it were an error, hee may say Erravimus cum patribus; and thereupon alleadged three examples: first, the articles against Cardinall Wolsey, 21 Henry 8, wherein the same wordes are used that such proceedinges in Chancery tended to the subversion of the common lawe; secoundly, the booke called the Doctor and Student; and thirdly, an opinion of the Judges in Throgmorton’s case in Queen Elizabeth’s time; addinge further that for the time to come there was noe dainger; for that the Judges, havinge receaved your Majesty’s commaundement by your Attorney Generall, that noe Bills of that nature should hereafter bee receaved, hee and his bretheren have caused the same to bee entred as an order in the same Courte, which shalbe observed.
Which beinge the effect of his aunsweare, wee have thought good withall to add that before us, as well in speech as in action, hee behaved himself very modestly and submissively.
This certificate was made the 26 day of this present June.
…
|[340] At the Court at Greenewich, Sonday morneineinge (sic), the 30th of June, 1616.
Present: Lord Archbishop of Canterburie, Lord Treasurer, Lord Privie Seale, Lord Zouch, Lord Knollis, Lord Wotton, Mr. Vice-Chamberlein, Mr. Secretary Winwoode, Mr. Secretary Lake, Mr. Chancellor of the Exchecquer, Master of the Roles, Mr. Attorney Generall.
Sir Edward Coke, knight, Chiefe Justice of the King’s Bench, presentinge himself this day at thes Boarde, upon his knees, Mr. Secretary Winwoode signifyed unto him that their lordships had made reporte to his Majestie of that which passed on Wednesday last at Whithall, where hee was charged by his Majesty’s Sollicitor with certaine thinges, wherein his Majesty was much unsatisfyed: which report contayned a true and just relacion, aswell of those thinges which were then objected against him, as of his aunsweares thereunto in particular, and that, rather to his advantage then otherwise; which beinge delivered in writinge, and in his princely judgement duly waighed and considered of, his Majestie was noe way satisfyed with his aunsweares to anie of those three pointes, wherewith he stood charged, vizt.: neither in that which hee made concerninge the bonde and defeasaunce upon the installment of a debte of Sir Christopher Hatton, late Lord Chancellor of Englaund; nor yet in that which hee maketh concerninge his speeches of hiegh contempt, utterred as he sate in the seate of justice, concerninge the overthrowe of the common law; nor lastly, in the aunsweare hee offereth to excuse his uncivill and indiscreete carryage before his Majestie, assisted with his Privie Councell and his Judges: but that the charge lyeth still upon him, notwithstandinge anie thinge contayned in his said aunsweares.
Nevertheles, such is his Majesty’s clemencie and goodnes, as hee is pleased not to proceede heavely against him, but rather to looke upon the meritt of his former services; and accordingly hath decreed.
First: that hee bee sequestred from the Councell Table, untill his Majesty’s pleasure be further knowne.
Secoundly: that hee doe forbeare to ryde this sommer’s circuit as Justice of Assize.
Lastly: that duringe this vacacion, while hee hath time to live privately and dispose himself at home, hee take into his consideracion and review his bookes of Reportes, wherein (as his Majestie is informed) there bee manie exorbitaunt and extravagant opinions sett downe and published for positive and goodlawe; and if, in the review and reading thereof, hee finde anie thinge fitt to be altred or amended, the correctinge thereof is leaft to his discretion. Amongst other thinges, his Majestie was not well pleased with the tytle of those bookes, |[341] wherein hee styled himself Lord Chiefe Justice of Englaunde, whereas hee could challendge noe more then Chiefe Justice of the Kinges Bench. And havinge corrected what in his discretion hee found meete in those Reportes, his Majesty’s pleasure was, that hee should bringe the same privately tohimself, that hee might consider thereof, as in his princely judgement should bee found expedient. Hereunto the Secretary advised him to conforme himself in all dutie and obeydience, as hee ought, whereby hee might hope that his Majestie in time would receave him againe to his gracious and princely favour.
Hereunto the Lord Chiefe Justice made aunsweare; that hee did in all humillitie prostrate himself to his Majesty’s good pleasure: thatheeacknowledged the decree to bee just, and proceeded rather from his Majesty’s exceedinge mercie, then from his justice; gave humble thankes to their lordships for their favour and goodnes towards him, and hoped that his behaviour for the future should bee such as should deserve their lordships’ favour.
My lordes havinge thus farr proceeded, the Lorde Treasurer told him that hee had one thinge more to lett him knowe, which belounged to the Erles Marshall’s to take notice of, and was, that his coachman used of late to ryde bareheaded before him, which was more then hee could anie way challendge or assume to himself, and required him to forbeare it for the future. To which the Lord Chiefe Justice aunsweared: that the coachman did it for his owne ease, and not by his commaundement. And soe, with the like submission and acknowledgment of favour, departed.
D. Coke’s Arrest after Parliament, 1621.
Ed.: Through the Parliament of 1621, Coke’s opposition to the King had grown. Eventually he opposed the King on matters not only of parliamentary privilege but also of foreign policy. James ordered the arrest of Coke, Selden, Prynne, and other members of the opposition, but ultimately no evidence was found against them. These notes were printed in the Acts of the Privy Council, 1621–22.
December 27, 1621.
|[217] A letter to the Lieutennaunt of the Tower requireinge him to receave into his custodie the person of Sir Edward Coke, knight, and to keepe him closse prisonner there untill further order, sufferinge him to make choice of twoe of his owne servaunts to wayte upon him soe as they be kept closse with him.
Lord Archbishop, Lord Keeper, Lord Treasurer, Lord President, Lord Privy Seale, Lord Steward, Lord Marquis Hamilton, Earl Marshall, Lord Chamberlen, Earl of Kellie, Lord Viscount Falkland, Lord Carew, Lord Digbie, Lord Brooke, Mr. Treasurer, Mr. Secretary Calvert, Mr. Chancellor [of the Exchequer], Master of the Rolles.
…
December 27, 1621.
A warraunt to Sir Thomas Wilson, knight, requireing him to make his ymediate repare to Sir Edward Coke’s house in Broad Streete, London, and to seale up all such locks and doores of anie roomes, chambers or studies in the said house, that hee should probably understaund or conceave to hold or contayne anie writeings or papers belonginge to Sir Edward Coke and the same beinge soe sealed to charge and commaund the housekeeper or anie others who are put in trust therewith upon their allegeance that they suffer not the said doores to bee opened untill further order etc.
Lord Archbishop, Lord Keeper, Lord Treasurer, Lord President, Lord Privy Seale, Lord Steward, Earl Marshall, Lord Chamberlen, Earl of Kellie, Lord Falkland, Lord Carew, Mr. Treasurer, Mr. Secretary Calvert.
The like warraunt to Francis Gall, esquire, one of the clerkes of the Signett to his Majestie, to seale up the doores of Sir Edward Coke’s chambers in the Temple etc.
…
December 30, 1621.
A warraunt to Sir Robert Cotton, knight and barronet, Sir Thomas Wilson, knight, and John Dickenson, esquire, to repare to Sir Edward Coke’s house in Broad Streete, London, and takeing unto you such of his servaunts as have the charge of the said house to make dilligent search for all such papers and writeings as doe anie way concerne his Majestie’s service and the same to seale up and bringe forthwith unto us, to which purpose you are to breake of such seales as were lately sett upon the doores in the said house by order from this Board and in the presence of his said servaunts to open all such studies, clossetts, chests, trunkes, deskes or boxes, where you shall understaundorprobably conceave anie such papers doe remaine, for which etc.
Lord Archbishop, Lord Keeper, Lord President, Lord Privy Seale, Lord Steward, Lord Marquis Hamilton, Earl Marshall, Lord Chamberlen, Earl of Kellie, Lord Viscount Falkland, Lord Carew, Lord Digbie, Mr. Treasurer, Mr. Secretary Calvert, Mr. Chancellor [of the Exchequer].
Another of the same tenor to the same persons to make the like search in Sir Edward Coke’s chambers in the Temple.
…
August 6, 1622.
|[463] Att the Court att Windsor, the 6th of August 1622.
His Majestie’s pleasure was this day signified by Mr. Secretarie Calvert for the inlargement of Sir Edward Coke, knight, out of the Tower of London and his confinement to his house att Stocke in the county of Buckingham and within six miles compasse of the same until further order from his Majestie, provided that att what time his Majestie shalbe within the limittes of his confinement the said Sir Edward Coke doe not repaire to the Court without speciall licence from his Majestie, whereof this memoriall was commaunded to be entred in the register of Councell causes and a copie thereof sent unto the said Sir Edward Coke.
…
August 7, 1622.
Letters to the Lieutenant of the Tower.
That whereas his Majestie’s pleasure was signified that Sir Edward Coke and Sir Robert Phillipps, knightes, and William Mallorey, esquire, should be discharged out of the Tower of London, the said Lieutenantshouldaccordingly inlarge them etc.
Lord Steward, Lord Admirall, Earl Kellie, Lord Viscount Falkland, Mr. Treasurer, Mr. Secretary Calvart, Sir Edward Conway.
E. Sir Edward Coke’s Case The Sheriff’s Oath, 1626
Ed.: As Coke became more obstreperous in parliment, Charles had him and four other opposition leaders appointed as sheriffs, who could not attend parliament but had to remain in their counties. This hearing followed. This report was first published in Croke’s Reports of Cases in Charles’s Reign at page 26.
Sir Edward Coke’s Case
Sir Edward Coke, late Chief Justice of the Common Pleas, and afterwards of the King’s Bench, and removed from his places, being made Sheriff of the county of Buckingham, had a dedimus potestatem to take his oath annexed to a schedule; to which he took exceptions, for that there were more additions to the said oath than were in the ancient oath which is in the register, and afterwards confirmed and appointed by the statute of 18 Edw. 3. c. 4.: he therefore conceived there ought not to be such additions unless by Parliament. The additions were,
First, “that he should seek to suppress all errors and heresies commonly called lollories, and should be assistant to the commissaries and Ordinary in church matters:” which part of the oath was added by reason of the statute of 5 Ric. 2. st. 2. c. 5. and 2 Hen. 4. c. 15. whereby it is appointed that the same should be taken by the sheriff, especially for those two causes. But he thereto certified, that those statutes are repealed by the 1 Edw. 6. c. 1. and 1 Eliz. c. 2. and therefore ought not to be taken.
The second addition was, “that he should return reasonable issues:”whereto he excepted, because it is appointed by the statute, and penalties imposed for not performing it; and it ought not to be upon oath.
The third addition was, “that he should return all juries of the nearest and sufficientest persons:” whereto he excepted, because that part of the oath is not appointed by any statute; and it is against common practice that he himself should return juries, it being commonly done by the under sheriff, who is also appointed by the statute to be sworn.
The fourth addition was, “that he should cause the Statute of Winton, and the statutes against rogues and vagabonds, to be put in execution:” whereto he excepted, because the Statute of Winton is altered, and the statutes against rogues and vagabonds are appointed to be executed by the justices of the peace, and not by the sheriff.
Upon these exceptions the Lord Keeper assembled all the justices to confer with them about the same. And as touching.
The first point, they conceived it was fit to be omitted out of the oath, because it is appointed by statutes which are repealed, and were intended against the religion now professed and established, which before was condemned for heresy, and is now held for the true religion.
For the second addition, they conceived it convenient and for the service of the King and subjects, and the greater part of them were of opinion, that an oath in this and the other points may be well enjoined by the King and order of State without Parliament, and it may be well imposed upon the sheriff to take, being for public benefit and execution of the laws.
For the third addition, it is not so strictly to be intended that he himself should return juries, but it ought to be intended according to the construction of law, that he himself, by himself or under-sheriff, should return juries; which is a sufficient performance; for the law saith, qui per alium facit, per seipsum facit.
For the fourth addition, it rests upon the former reasons, that this oath being appointed and continued divers years by direction of the State, although without the express authority of any statute law, yet may he well be continued for the public benefit in repressing such persons: and although authority be given to the justices of the peace to put those statutes in execution, yet it doth not take away the sheriff’s right, who is the public conservator. And so they delivered their opinions to the Lord Keeper at his house at Reading.
Titles (by Subject) 
