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.
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