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well begun, both in the true state and in the did lead the blind. For the offence, for which
true weight of it. For as I desire, that the na- Mr. Whitelocke is charged, I hold it great, and
ture of the offence may appear in its true co to have, as I said at first, two parts; the one a
lours; so, on the other side, I desire, that the censure, and, as inuch as in bim is, a circling,
shadow of it may not darken or involve any nay a clipping, of the king's prerogative in ge-
thing that is lawful, or agreeable with the just geral: the other, a slander and depravation of
and reasonable liberty of the subject.-- First, the king's power and bonour in this commis-
we must and do agree, that the asking and tak- sion.- And for the first of these, I consider it
ing, and giving of counsel in la v is an essential again in three degrees: first, that be presumed
part of justice; and to deny that, is to shut the to censure the king's prerogative at all. Se-
gate of justice, which in the Hebrews common condly, that he runneth into the generality of
wealth was therefore held in the gate, to shew it more than was pertinent to the present ques-
all passage to justice must be open: and cer- tion. And lastly, that he bath erroneously,
tainly counsel in law is one of the passages. and falsely, and dangerously given opinion in
But yet, for all that, this liberty is noi infinite derogation of it. First, I make a great diffe-
and without limits. Ii a jesuited papist should rence between the king's grants and ordinary
come, and ask counsel (I put a case not alio- omissions of justice, and ihe king's high com-
gether feigned, whether all the acts of parlia- missions of regiment, or mixed with causes of
anent made in the time of queen Elizabeth and state. For the former, there is no doubt but
king Jaines are void or no: because there are they may be freely questioned and disputed,
no lawful bishops sitting in the upper house, and any defect in matter or form stood upon,
and a parliament must consist of lords spiritual though the king be many times the adverse
and temporal and commons; and a lawyer party. But for the latter sort, they are rather
will set vi under his hand, that they be all void, to be dealt with, if at all, by a modest, and
I will touch hine for high treason upon this bis humble in'imation or remonstrance to bis ma-
counsel. So, it a puritan preacher will ask jesty, and his council, than by bravery of dis-
counsel, whether he may siile the king de- pute or peremptory opposition.
lender of the faith, because he receives not the Of this kind is that properly to be under-
discipline and presbytery; and the lawyer will stood, which is said in Bracion, de chartis et
tell him, it is no part of the king's stile, it will factis regiis non debent, aut possunt, justitia-
go hard with such a lawyer. Or it a tribuni-rii aut privatæ personæ disputare; sed tutius
nous popular spirit will go and ask a lawyer, est, ut expectetur sententia regis.'-- And the
whether the oath and band of allegiance be to 1 king's courts themselves have been exceeding
the kingdom and crown only, and not to the tender and sparing in it; so that there is in all
king, as was IIugh Spenser's Case, and be deli- our law, not three cases of it. And in that
ver bis opinion as Hugb Spenser did ; he will very case of 24 Ed. 3, Ass. pl. s. which Nr.
he in Hugh Spenser's danger.—So as the privi-Whitelocke vouched, whereas it was a com-
dege of giving counsel proveth not all opinions : mission to arrest a man, and to carry him to
and as some opinions given are traitorous ; so prison, and to seize his goods without any form
are there others of a much inferior nature, of justice or examination preceding ; and that
which are contemptuous. And among these I the judges saw it was obtained by surreption;
reckoo Mr. Whitelocke's; for as for his fos- yet the judges said they would keep it by them,
aliy and true heart to the king, God forbid'l and shew it to the king's council.-But Mr.
should doubt it.—Therefore let no man mis- Whitelocke did not advise his client to acquaint
take so far, as to conceive, that any lawful and the king's council with it, but presumptuously
due liberty of the subject for asking counsel in giveth opinion, that it is void. Nav, not so
law is called in question, when points of disloy- much as a clause or passage of modesty, as
alty or of contempt are restrained. Nay, we that he submits his opinion to censure : that it
see it is the grace and favour of the king and is too great a matter for him to deal in ; or
his courts, that if the case be tender, and a wise this is my opinion, which is nothing, &c. Bit
lawyer in modesty and discretion refuseth to illotis manibus, he takes it into his hands, and
be of council, for you have lawyers sometimes pronounceth of it, as a man would scarcely do
too nice as well as too bold, they are then ruled of a warrant of a justice of peace, and speaks
and assigned to be of council. For certainly like a dictator, that this is law, and this is
counsel is the blind man's guide; and sorry I against law,' &c.
amn with all my heart, that in this case the blind

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94. Proceedings against Mary Countess of SHREWSLUNY, before a

Select Council, for a Contempt, in refusing to answer fully before the Privy Council, or to subscribe her Examination. Trin,

10 JAMES I. A.D. 1619. [Coke's Report, p. 94.] ["s. The occasion of examining lady Shrewsbury the chancellor of the exchcquer, the chancellor

betore the Privy Council, was her conduct of the duchy, Flemniiig chiet justice of the king's in respect to the marriage of lady Stuart. Bench, Philips Master of the rolls, Coke C. T. This latter lady was first-cousin to James 1.; of the Common Ple:s, and Tanfield chief baron, for she was the daughter of Charles earl of The countess of Shrewsbury (the wife of Gilbert Lenox, the younger brother of Jarnes's father earl of Shrewsbury) then prisoner in the Tower, lord Darnley. Her mother was Elizabeth was brought before the said lords, and by the daughter of sir William Cavendish. The attorney and solicitor of the king was charged countess of Shrewsbury was aunt to lady with a high and great contempt of * dangerous Arabella, being sister to her mother. A consequence; for they declared that the lady marriage took place between lady Arabella | Arabella, being of the blood royal, had married and sir William Seymour, who at the Resto

Seymieur, 'second son of the earl of ration recovered the dukedom of Somerset Hertford, without privity or assent of the king, for his family. Being a marriage with one for which contempt the said Seymour was comso nearly related in blood to the king, and mitted to the Tower, and had escaped and fled without his consent, it was deemed an offence beyond the seas; the lady Arabella being unagainst the royal prerogative,* on which ac- der restraint escaped also, and embarked hercount lady Arabella and her husband were self upon the sea, wd was taken before she got imprisoned; the former in a private house at over; of which Hylt of the said lady Arabella, Lambeth, the latter in the Tower. But both the said countess, being her aunt, very well escaped from their confinement with a view knew and abetted, as is directly proved by to retire abroad; and the countess of Shrews-Crompton, and not devied by the lady Arabelbury was taken into custody as privy and la; and admit it, that the lady Arabella had no accessary to the escape of lady Arabella. On evil intent against the king (ivho bad always a being examined by the privy-council

, the great and special care of lier, and was very countess refused to discover what she knew bountiful unto her, until ber marriage with the of the affair of the Marriage and Escape, or said Seymour, which was the pomum velitum :) to subscribe her Examination; and for this yet when she Hed, and when she should be refusal she was brought before a select coun- environed with evil spirits, cum perversis percil, whose proceedings on the occasion are verti possit, and when she shall be in another the subject of the following Case. What we sphere, she will not more within the same orb. shall first lay before the reader is lord Coke's And the lords of the Privy Council, knowing Account of the Case, from. bis. 12th Report the arcanu imperii, did shew divers perilous Lord Bacon's Speech, which is next given, consequences, and the rather for this, that the was first printed in the Cabala, but is here said countess is an obstinate popish recusant, taken from the last edition of his Works, and as was said, perverted also the lady Aravol. 3, p. 265. For further particulars, re- bella, Now the Charge was in two points. lative to the Marriage of lady Arabella 1. That the said countess of Shrewsbury, by Stuart, and the Proceedings against her, sir commandment of the king, being called to the William Seymour her husband, and lady council table, before the lords of the council at Shrewsbury, the curious reader may consult White-hall, and there being required by the Winwood's Memorials of State, vol. iii. p. lords to declare her knowledge touching the 117. 119. 201. 279. 280. 281. 451.” Har- said points, and to discover what she knel con'grave.]

cerving them, for the safety of the king, and

quiet of the realm; she answered, that she Trin. 10 Jac. 1.

would not make any particular answer; and In this term, before a select council at York- being again asked by the king's coinmand by house ; scil. the lord chancellor, the archbishop, the council at Lambeth, and being charged the duke of Lenox, the earl of Northampton, again to answer to the said point, she refused Jord privy seat, the earl of Suffolk, lord cham- for two causes. 1. For that she had inade a berlain, the earl of Worcester, the earl of Pem- rash vow that she would not declare any thing broke, viscount Erskin, viscount Rochford, the in particular touching the said points; and for lord Zouch, the lord Knolls, che lord Wootton, that (as she said) it was better to obey God than

2. She stood upon her privilege of no* With respect to the royal prerogative concerning the education and marriage of persons * Of contempts. See 1 Hawk, ch. 21. per of the royal family, see the opinions of the tot. ch. 22. sect. 2, 8. 4, ch. 23, sect. 1, 2, 3, judges, a. D. 1717, infra. & st. 12 G. 3, c. 11, &c. ch. 24, sect. 2, 3, 4. 2 Jawki. ch. 10, and the debates thereon in Cobb, Parl. Hist. sect. 15, 17, 19. VOL. II.



bility, scil. to answer only when she was called oath 12 'Co. 20, 27.] upon their oaths, (a) and judicially before her peers; for that such privi- may be examined in the Star Chamber upon lege was allowed (as she said) to William earl interrogatories upon their oaths: and if one of Pembroke, and to the lord Luinley.

who is noble be produced as a witness between 2. The second point of her charge was, that when such answer which she had made was put 1a) “ But in 1623, the house of lords came in writing, and rend to her, yet she refused to i to a Resolution, declaring it to be the antient subscribe to it. Which denial to discover and right of the nobility of this kingdom and the discharge her conscience in a case which lords of the upper bouse of parliament, to antoucheth the safety of the king, and quiet swer in all couris as defendants upon Protestaof the realm), was urged by the king's council tion of Honour only. Journ. Dom. Proc. 0. to be a great and high contempt, and that May, 1628. This Resolation was in consenobility hath not any such privilege as is alleged, quence of an order, made about two years bepor any such allowance as was supposed; and fore by the Star Chamber against the earl of that rash and illegal vows make not an excuse, Lincoln, to answer a bill on oath; though this and that this precedent being now upon the order had passed after great deliberasion, and stage, was of' very dangerous consequence: and was founded on an unanimous opinion of the tie said countess hearing the charge, yet per-| lords of the privy council, and of all the judges sisted in her obstinate retusal, for the same rea- except Doderridge who was absent. See the sons and causes upon which she had insisted earl of Lincoln's Case, W. Jo. 152. Flutt. 87. bcture: and the lord chancellor begao, and the Cro. Cha. 64. In 1640, the lords renewed the archbishop, and all the other lords began with declaration of this privilege in answering as dethe tirst, and adjudred it a great and high con- fendants without oath, with an explanation, tempi, and the Tond chancellor said, that that that it extended to all answers and examinawas against the les of England, with which all tions on interrogatories, in all causes as well the lords agreed. - And that no such allowance crinmal as civil, and in all courts and commiswas given to the said earl of Pembroke, or to sions, and also to the widows and do: agers of the lord Lumley in respect of their privilege of temporal peers. Journ. Dom. Proc. 31 Dec. nobility, but that they were voces populi, et idco 1610. The present practice of our courts of non audienda : and the lord archbishop prin- equity conforms to this order of the lords." cipally proved, that as well the contempt, as Hargrave. the said rash vow was against the law of God, A Peer, sitting in joelgınent, gives not his which he and the earl of Northampton princi- verdict upon oath, like an ordinary jurypally proved by disers texts and examples in man, but, upon bois honour. 2 Inst. 49.-11e boly scripture. And the effect of all that which answers also to Bills in Chancery upon bis the three justices said, was, that after the sen honour and not upon his oath; 1 P. W. 146 ; tences of all the learned, prudent, and honour. but when he is exainine: as a witness either able personages and counsellors of' estate, they in civil or criminal cases, he must be sworn, might well be silent; but in regard that silen(whether in interior courts, or in the high court tium in senutu est vitium, they would speak of parliament) for the respect which the law something briefly, viz.

shows to the honour of a peer does not extend That ihree things in this case are to be well so tiir as to overturn a settled maxim, that considered. 1. Whether the retueals aforesaid . in judicio non creditur . nisi juratis. Salk. of the said countess were offences in law against 519. Cro. Car. 61.- In many cases, the prothe king, his crown and dignity. 2. What man. testation of tonour shall be sutticient for a ner of proceeding this is, and whether it was peer; as in trial of peers, they proceed upon justifiable by precedent or reason). 3. 1. hat is their honour, liliongh formerly it was to be on the demerit of the offcuces, and how punish- oath), and in action of debt upon account the able.

plaintiff being a petr, it shall suttice to examine As to the first, it was resolved by the justices his attorney, and not bimself upon oath; but and master of the rolls, that the denying to be where a peer is to answer interrogatories, or examined was a light and great contempt in make an atidavit, as well as where he is to be law, against the king, his crown and dignity; examined as a witness, he must be upon his and that if it sbould be permited, it would be oath. Bract. lib. 5. c. 9. 4 Rep. 49. 3 Inst. an occasion of many bigh and dangerous designs 29. W. Jones 159. O Solk, 512.-Sir Thomits against the king and the realın, which cannot Meers contra lord Stourion, in Cauc". Sir be discovered : and upon hope of ispunity it Thomas Meers exhibited a Bill against the will be an encouragement to offenders, as Fle. bord Stourton, and it was ordered, that the ming justice said, to enterprize dangerous at lord Stourton should be examined upon intempts.

terrogatories couching his title; and it was obAnd the Master of the Rolls said; that it was jected, That be being a peer of the realm, not any privilege of mobility, to refuse to be ex- ought to answer upon his lionour only; and amined in this case, no more than of any sub- it was ruleid by Harcourt, Lord Keeper, that ject.

where a peer is to answer to a Bill, his Ans Also, if one that is noble, and a peer of the swer put in upon his honour is sufficient; but realm, be sued in the Star Chamber, or in Chan- where a peer is to answer interrogatories, to eery, they ouglit to answer (Quære the er officia make an affidavit, or be examined as a wit:

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party and party, he ought to be sworn, or other in the cheque roll, compass er intend to kill any wise his testimony of no value; and so is the lord of parliament, or other lord of the king's common experience in the said courts: and the council, this is felony. 5. In the Coinmon chief justice said, that forasimuch as where or Pleas, a lord of parliament shall have knights der is neglected, confusion will follow, he would returned on his jury. 6. Ile shall have day of recite some of the hovourable privileges which grace. 7. A lord of parliament shall not be the law of England (more than any other law) tried in case of treason, felony, or misprision of attribute to the nobility of England in legal pro- thein, but by those who are noble and peers of ceedings; and they will not be impertinent, the realm. 8. In trial of a peer, the lords of but give a great light to the case now in parliament shall not swear, but they give their band.

judginent super fidem et ligeantiam domino regi (1.) If a bron, viscount, earl, or other lord debitam, so that their faith and allegiance stands of parliament and peer of the realm be plain- in equipoise with an oath in the case of a comtitt in any action, and the defendant will plead mon person in trial of life: and the writs of toat the plaintifi is not a baron, viscount, earl, parliament, directed to the lords of parliament, &c. as he is named in the writ, this shall not are sub fide et ligeantia, &c. be tried at the common law by jury, who may And the reason and cause, that the king gives he corrupted, nor by witnesses, as in the Star them many otber privileges, is for this, because Chamber, or Chancery, who may be suborned; all honour and nobility is derived from the king but it shall be tried by the record in Chancery, as the true fountain: and the king honours with which imports by itself solid truth; so great re- nobility, for two causes. 1. Ad consulendum, gard hath the law to the trial of their honour and for that reason he gives them a robe. 2. and dignity, &c.

Ad defendendum regem et regnum, and for that (2.) Their persons hare many honourable pri- cause he gives them a sword.--And forasmuch vileges in law. 1. At the suit of a subject as they derive their diynities, accompanied with their bodies shall not be arrested, neither capias all those honourable privileges, from the king, por erigent lieth against them. 2. For the to deny to answer, being required thereto by bonour and reverence which the law gives to the king, to such points as concern the safety nobility, their bodies are not subject to torture of the king and quiet of the realm, is a high conin causa criminis læse majestatis. (a!. 3. They tempt and disabedience, accompanied with are not to be sworn in assizes, juries, or other great ingratitude. inquests. 4. If any servant of the king, named This denial is contra ligeantiam suam ness, he must be upon his oath.-In the pleas (a) “ It is surprising, that doctrine so reof parliament, 18 Edw. 1, between the earl Pecting on the law of England shoull escape of Gloucester and earl of llereford, on long from one of lord Coke's character. Ilis landebate whether John de llasting, a baron, ought guage as attorney general at the Trials of the to be sworn, because he was a peer of the earls of Essex and Southampton implies the realm, it was resolved that he ought to lay his same obnoxious tenet. But in his third Instihand on the book. The like was resolved, tute he gives it as his opinion most decisively, 10 C'ar. in B. R. by the court, where the lord that all Tortures of accused persons are conDorset's testiinony was requisite. See Dy. 311. trary to our law; and to prove it cites lord b. marg. pl. 98. See also i Cobb. Parl. Ilist. chancellor Fortescue's famous book. De laudi1209.-A bill was against a Peeress to discover "bus leguin Angliæ,' where he argues for a predeeds; she answers on her honour and con ference of our law to the civil law from the latfesses decds. She shall produce them only rer's allowance of torture. 3 Inst. 35. In the upon her honour, and not on oath. Ch. Prec. Case of Felton, for the murder of the duke of 92. Jacob's Law Dict. Tile, Peers.--In a case Buckingham, the judges were unanimous, that the earl of Shaftsbury against lord Digby, re- Felton could not be tortured by the rack; for ported in 2 Mod. 98. Trin. 7. 28 Car. 2. no such punishment,' said they, ' is known or iVhen this cause was tried at the bar, wbich allowed by our law.' 1 Rush. 6.3. 639. As was in Easter Terın last, the lord Mohun of to the instances of Torture collected by a most fered to give his testimony for the plaintiff, but respectable writer of the present time, they only refused to be sworn, offering to speak upon his prove an irregularity of practice. Barrington bonour, But Wylde, Justice, told him, in causes Ant. Stat. 4th ed. 83. 88. 395. Tf torture was bet veen party and party be must be upon his lawful, we should find rules to direct its applicaoath. The lord Mohun asked hiin, whether be tion." Hargrave. would answer it. The judge replied, that he The use of Torture appears to have been delivered it as his opinion. And because he continued in Scotland until the Revolution, at koew not whether it might cause him to be which time it was complained against with other questioned in another place, he desired the grievances. See 2 M Dowa:l's Instit. of the rest of the judges to deliver their opinions, Laws of Scotland 660. The use of torture in which they all did, and said he ought to be Scotland is abolished by “ An act for improra sworn. And so he was, but with a salvo jure ; ing the two kingdoms." Stat. 7 Anne, c. 21, for he said there was an order in the house 95. Concerning the use of Torture among the of Peers,' that it is against the privilege of Romans see Tit. #. de Questionibus:—See vol. the house for any lord to be swoon.' 1, p. 505, note (c).

6 debitam,' against the faith anıt allegiance precedent of the earl of Essex, against whom of a person noble, due to the king, and such proceedings were in this very place, anno which the law greatly esteems. And that this 42 and 43 Eliz. reg. denying is against her faith and allegiance And as to the last point it was resolved by appears by the ancient oath of allegiance, all quasi una voce, that if a sentence should be which is imprinted in the heart of every sub- given in the Star-Chamber judicially, she should ject, 'scil. ero verus et fidelis, et veritatem be tined 20,0001. and imprisoned during the • præstabo domino regi de vità et membro, et king's pleasure. Vide 12 Co. 69, &c.

de terreno honore, ad vivendum et moriendum • Hoc in terrorem, sed quare quid inde venit?' 'contra omnes gentes, &c. Et si cognoscam aut audiam de aliquo damno aut malo quod Speecu of sir Francis Bacon, from vol. iii. of domino regi evenire poterit, quod non reve

his Works,* 4to edit. p. 265. « lato,' &c. And this oath of allegiance is Your lordships do observe the nature of this cominon to all subjects, as well those of the Charge: my lady of Shrewsbury, a lady wise, nobility as commonalty. But the law hath and that ought to know what duty requireth, greater account of the faith and allegiance of a is charged to have refused, and to have persobleman, than of one of the commous, for this, sisted in refusal to answer, and to be examined that the breach of their allegiance is more dan- in a high cause of state, being examined by gerous to the king and estate, for corruptio the council.table, which is a representative

optimorum est pessima ;' and for this reason, body of the king. The nature of the cause, the countess by her allegiance was bound, with upon which she was examined, is an essential out being demanded, to reveal to the king what point, which doth aggravate and increase this she knows concerning the premises, upon which contempt and presumption ; and therefore of great mischiet' may happen to the king and the necessity with that we must begin. liow grarealm. But being commanded by the king to ciously and parent-like his majesty used the declare her knowledge, the denying of it doth lady Arabella before she gave bim cause of ingreatly aggravate the otience. . Qui contemnit | dignation, the world knoweth. My lady not* præceptum, contemnit præcipientein.' Com- withstanding, extremely ill-advised, transacted mand and obedience are the ligament of go-the most weighty and binding part and action verninent, and ligeantia est legis essentia;' for of her life, which is her marriage, without acwithout allegiance and obedience, the law can- quainting his majesty ; which had been a negnot proceed.

lect even to a mean parent; but being to our As to the second point, viz. concerning the sovereign, and she standing so near to his mamanner of this proceeding. 1. Privative, it is jesty as she doth, and then choosing such a connot to fine and imprison, or inflict corporal dition as it pleased her to choose, all parties punishment upon the countess ; for fine and laid together, how dangerous it was, my lady imprisonment ought to be assessed in some might have read it in the fortune of that house court judicially.* 2. Positive, the fine is ' ad wherewith sbe is matched; for it was not un• monendum,' or at the most' ad minandum;' like the case of Mr. Seymour's grandmother. it is ad instruendum non ad destruendum.' - The king nevertheless so remembered he was

This selected council is to express what pu- a king, as he forgot not he was a kinsman, and nishment this offence justly deserved, if it be placed her only • sub libera custodia.' But judicially proceeded within the Star-Chamber; now did my lady accumulate and heap up this for which reason this manner of proceeding is coffence with a tar greater than the former, by out of the mercy and grace of the king against seeking to withdraw herself out of the king's this honourable lady, that she seeing her power into foreign parts. olience may submit herself to the king, without That this flight or escape into foreign parts any punishment in any court judicially. might have been seed of trouble to this state,

It Sentence shall be given in the Star-Cham is a matter whereof the conceit of a vulgar ber according to justice, you the lords shall be person is not uncapable. For although my agents in it : but in this manner according to lady should have put on a mind to continue her the mercy of the king, the king is only agent; loyalty, as nature and duty did bind her ; yet the law fixth pul rules and limits to the jastice when she was in another sphere, she must have of the king, but not unto his mercy, that is moved in the motion of that orb, and not of transcendant and without any liniits of the law; the planet itself: and God forbid the king's

et ideo processus iste est regalis plane et rege felicity should be so little, as he should not • dignus.

have envy and enviers enough in foreign parts. Also inasmuch as the allegiance and obedi- It is true, if any foreigner had wrought upon ence of ihe subject, is the best flower in his this occasion, I do not doubt but the intent imperial.garland, to the intent, that it may nei- would have been, as the prophet saith,' they ther be blasted, nor impaired by this dangerous have conceived mischief, and brought forth a example, to the prejudice of his royal preroyn- vain thing.' But yet your lordships know live and posterity, this proceeding hath been thought necessary: and this is fortified by the * In addition to the particulars collected by

Mr. Barrington, sec 3 Harl. Misc. 124, 130, Vide the earl of Essex's case, 42 •& 43 182, 537, and Birch's edition of Bacon's works, Eliz.424.

vol. 3, p. 259, 478.

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