proceedings, that they do nothing in prejudice of the king, without any other commandment of stay. The second is, the si vobis constare poterit, where the writ doth lay it upon any special point, the truth thereof to be examined being left to the court, so as the commandment is conditional. The third is, where the writ is peremptory, but yet is for a time, and is donec aliud habueritis in mandatis, or nobis inconsultis non procedatis, which implies as much; and of this kind is our writ. And the fourth is supersedeas omnino, with an allez à Dieu to the plaintiff; which final writ is never but after the discussing of the plea in the chancery. For the court's obedience, which is the relative to the mandate of the king, I said in the beginning, that the judges have ever been the principal examples of obedience to the king; and I will note unto the court four points, which I find in their predecessors concerning this writ. First, their wisdom and circumspection; for I may truly observe, that when this writ was brought, they have ever done less than their warrant. So you see in the case 21 E. 3. where the writ was but a circumspectè agatis, yet when the plaintiff's counsel urged they might at least take the verdict, yet the court stayed presently. So likewise in divers cases, where the writ was conditional, si vobis constare poterit; yet the court had no mind to meddle in it after that writ brought, nor to examine that point, which seemed to be left to them at large. So as still their obedience was more absolute than the commandment; and the court hath ever esteemed this writ as a thing sacred: for as it was the right of the Romans, that where a man's wall joined to a temple, if the owner had occasion to pull down his house, he left some of his own wall, lest he should touch the sacred wall; so the court would never venture upon the utmost bound of this writ, lest they should touch upon violation of the king's command. Secondly, I note the reference which the judges used in 2 R. 3. in Hunston's case, where, after the writ was brought by the king's attorney, the judges would not suffer any public argument, but assembled in a private manner, the door shut, and upon conference agreed to obey the writ, for they thought [Bro. Aid del Roy. 69.j it a thing of no good example to dispute the king's commandment; as if they were like the soldiers which Tacitus speaketh of, erant in officio, sed tamen quasi mallent imperantis mandata interpretari quàm exequi. Thirdly, I note the great humility of the judges in the phrase of the court upon this writ, where still they say, their hands are closed; as if they were turned statues or images, and that they had no power or motion. Lastly, I may note the danger of your predecessors in 1° of the book of Assise, where, although this writ was not brought, yet because the court did not of themselves ex officio regard sufficiently the king's title, it was said, the justice was suspended from his office, and was in moult graund danger. To conclude, I will reduplicate that which I said in the beginning, that this writ did ever stay the suit when it came, except only in two cases. The one in a direct case of an act of parliament to the contrary, quòd non supersedeant, as in Bedingfield's case, 28 Eliz. And the other is where in respect of a mischief, the court did proceed only de bene esse, lest that a procedendo should after come, and come too late. The case was', that an action of deceit was brought, and before the summoners were examined this writ came; whereupon, after Danby had said that their hands were closed, Prisot very worthily untied the knot; saying, "The mischief "is great in this case, for, if the summoners should die before "examination, the plaintiff hath lost his action and his land for "ever, although a procedendo should come after;" and compared it to the case of the writ of error for infancy, where perhaps the infant was near his full age: if the writ should be brought of the rege inconsulto, and then the full age should run on before inspection, the writ of error was gone and lost, and the fine good for ever. "This therefore will we do," saith he: "examine the summoner de bene esse, but with protestation "withal, that we expect a procedendo to come." This was good justice, and yet true obedience; but in no other case shall you ever find that the writ was disobeyed. Therefore I will end with this to your lordship and the rest, that obedience is better than sacrifice; that is a voluntary thing, 135 H. 6. 2 Printed "it"; the two words are easily confounded in abbreviations. The reference is obviously to sacrifice. and it is many times a glory or fame; but obedience is ever acceptable. I know the prothonotaries are servants of the court; but I know the court will more remember whom they serve, than who serves them; and therefore I pray, as the king commands, that the proceedings in this assise be stayed, and that the plaintiff be ordered to sue to the king, if he will.1 Brook, Patents, 12; 13 H. 4. 14; 11 H. 4. 86. |