93. Proceedings against Mr. JAMES WHITELOCKE, in the StarChamber, for a Contempt of the King's Prerogative : 11 JAMES I. 1613. [ Mr. Whitelocke, the subject of this Prosecu tion, is supposed to have been the same gentleman, as afterwards became sir James Whitelocke, the judge of that name, and father of Mr. Balstrode Whitelocke, the famous writer of the Memorials. See the note in vol. 3, of lord Bacon's Works, 4to ed. p. 471. He appears to have been prosecuted simply for giving a private verbal Opinion as a barrister, on a point of Prerogative, against the crown, to sir Robert Mansell; who, being Treasurer of the Navy and Vice-Admiral, had consulted Mr. Whitelocke, on the legality of a commission issued by king James for examining into and reforming the Disorders and Abuses of the Navy. Ibid. At the same time, sir Robert Mansell was himself charged, for questioning the prerogative of the crown, and animating the lord-admiral against the commission. Ibid. same page, and the note in p. 472. The hearing was at Whitehall before the Lords of the Council, with the intervention of lord chief justice Coke, lord chief baron Tanfield, and the Master of the Rolls; the king's Attorney and Solicitor speaking against Mr. Whitelocke, and Mr. Henry Montagu, the king's serjeant, against sir Robert Mansell. Ibid. Both humiliated themselves; in consequence of which they were recommended to the crown as proper objects of pardon, and were accordingly enlarged on the terms of subscribing a submission. Ibid. & Reliq, Wotton, p. 421. 3rd ed. there cited. The following Speech of lord Bacon, who was at this time Attorney-General, is the only remnant we meet with of the proceedings in the Case, exclusive of the circumstances before-mentioned. The Speech seems imperfect, it ending abruptly. What there is of it, though not without passages characteristic of lord Bacon's nervous eloquence and curiosity of argument, is in our opinion far from stating any thing like a just ground of prosecution. In the present age it would be deemed a monstrous doctrine to assert, that lawyers were not at liberty to give Opinions to their clients on questions of prerogative. Little apology can be made for such a doctrine even in lord Bacon's time; for it was ever lawful for the subject to contest questions of prerogative in the king's courts; and if it was so, how could it be contrary to law to take the advice of council on such subjects? Indeed lord Bacon professes not to controvert the right of asking and giving counsel in law. But then he qualifies this right by a distinction; for he exempts and gives a privilege to high commissions of regimen and cases of state; a description so large and indefinite, that, if it should be acquiesced in, it would leave few acts of the crown on which a lawyer could safely give an opinion. Particular delicacy and caution certainly ought to be used, where the prerogative of the crown is drawn into question; and it may be possible for a lawyer to exercise the right of giving Opinions so indecently and licentiously, as to render himself responsible criminally. But then the crime arises from the abuse, not from the want of the right. It may also be possible to put a case so strong, as to be beyond the line of a professional Opinion. Thus if a private lawyer should be consulted, whether the king had a right to the crown, who can doubt that he would answer such a question at his peril? But the question, on which Mr. Whitelocke gave his opinion, was not of this kind, being on a commission from the crown, the legality of which it was competent to the subject to controvert, and consequently to take legal advice about. On the whole, the true rule seems to be, that a barrister may give his opinion on every question, however relative to the king or his prerogative, which the subject may contest with the crown in a court of justice; but that in exercising this right he must keep so within the bounds of an opinion, as not under the color of it to obtrude either private or public scandal. In respect to Mr. Whitelocke's particular case, the subject of the Opinion he gave seems perfectly unexceptionable; nor could it be an offence, that his Opinion was against the extent of the prerogative, or that it was erroneous. The only ground then, on which he could be criminally responsible, was for some licentious and extraneous matter introduced into the Opinion; in respect to which no judgment can now be decisively formed, as the words of the Opinion do not appear; though as far as a conjecture may be made from lord Bacon's manner of observing on the Opinion, it was equally innocent both in subject and language." Hargrave.] SPEECH of the Attorney-General sir FRANCIS BACON, from the 3d volume of the last 4to edition of his Works, p. 471. MY Lords; The offence wherewith Mr. Whitelocke is charged, (for as to sir Robert Mansell, I take it to my part only to be sorry for his error) is a Contempt of a high nature, and resting upon two parts: on the one, a presumptuous and licentious censure and defying of his majesty's prerogative in general; the other, a slander and traducement of one act or emanation hereof, containing a commission of survey and reformation of abuses in the office of the navy.-This offence is fit to be opened and set before your lordships, as it hath been did lead the blind.-For the offence, for which Mr. Whitelocke is charged, I hold it great, and to have, as I said at first, two parts; the one a censure, and, as much as in him is, a circling, nay a clipping, of the king's prerogative in ge neral: the other, a slander and depravation of the king's power and honour in this commission.-And for the first of these, I consider it again in three degrees: first, that he presumed to censure the king's prerogative at all. Secondly, that he runneth into the generality of it more than was pertinent to the present question. And lastly, that he hath erroneously, and falsely, and dangerously given opinion in derogation of it. First, I make a great difference between the king's grants and ordinary omissions of justice, and the king's high commissions of regiment, or mixed with causes of state. For the former, there is no doubt but they may be freely questioned and disputed, and any defect in matter or form stood upon, though the king be many times the adverse party. But for the latter sort, they are rather to be dealt with, if at all, by a modest, and humble intimation or remonstrance to his majesty, and his council, than by bravery of dispute or peremptory opposition. well begun, both in the true state and in the I true weight of it. For as I desire, that the nature of the offence may appear in its true colours; so, on the other side, I desire, that the shadow of it may not darken or involve any thing that is lawful, or agreeable with the just and reasonable liberty of the subject.-First, we must and do agree, that the asking and taking, and giving of counsel in law is an essential part of justice; and to deny that, is to shut the gate of justice, which in the Hebrews commonwealth was therefore held in the gate, to shew all passage to justice must be open: and certainly counsel in law is one of the passages. But yet, for all that, this liberty is not infinite and without limits. If a jesuited papist should come, and ask counsel (I put a case not altogether feigned) whether all the acts of parliament made in the time of queen Elizabeth and king James are void or no; because there are no lawful bishops sitting in the upper house, and a parliament must consist of lords spiritual and temporal and commons; and a lawyer will set it under his hand, that they be all void, I will touch him for high treason upon this his counsel. So, if a puritan preacher will ask counsel, whether he may stile the king defender of the faith, because he receives not the Of this kind is that properly to be underdiscipline and presbytery; and the lawyer will stood, which is said in Bracton, de chartis et rell him, it is no part of the king's stile, it will factis regiis non debent, aut possunt, justitiago hard with such a lawyer.-Or if a tribuni-rii aut privatæ personæ disputare; sed tutius tous popular spirit will go and ask a lawyer, whether the oath and band of allegiance be to the kingdom and crown only, and not to the king, as was Hugh Spenser's Case, and he deliver his opinion as Hogh Spenser did; he will be in Hugh Spenser's danger.-So as the privilege of giving counsel proveth not all opinions: and as some opinions given are traitorous; so are there others of a much inferior nature, which are contemptuous. And among these I reckon Mr. Whitelocke's; for as for his loyalty and true heart to the king, God forbid I should doubt it.-Therefore let no man mistake so far, as to conceive, that any lawful and due liberty of the subject for asking counsel in law is called in question, when points of disleyalty or of contempt are restrained. Nay, we see it is the grace and favour of the king and his courts, that if the case be tender, and a wise lawyer in modesty and discretion refuseth to be of council, for you have lawyers sometimes too nice as well as too bold, they are then ruled and assigned to be of council. For certainly counsel is the blind man's guide; and sorry I am with all my heart, that in this case the blind est, ut expectetur sententia regis.'—And the king's courts themselves have been exceeding tender and sparing in it; so that there is in all our law, not three cases of it. And in that very case of 24 Ed. S, Ass. pl. s. which Mr. Whitelocke vouched, whereas it was a commission to arrest a man, and to carry him to prison, and to seize his goods without any form of justice or examination preceding; and that the judges saw it was obtained by surreption; yet the judges said they would keep it by them, and shew it to the king's council.—But Mr. Whitelocke did not advise his client to acquaint the king's council with it, but presumptuously giveth opinion, that it is void. Nay, not so much as a clause or passage of modesty, as that he submits his opinion to censure: that it is too great a matter for him to deal in; or this is my opinion, which is nothing, &c. But illotis manibus, he takes it into his hands, and pronounceth of it, as a man would scarcely do of a warrant of a justice of peace, and speaks like a dictator, that this is law,' and this is against law,' &c. 94. Proceedings against MARY Countess of SHREWSBURY, 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. 1612. [Coke's Report, p. 94.] ["The occasion of examining lady Shrewsbury before the Privy Council, was her conduct in respect to the marriage of lady Stuart. This latter lady was first-cousin to James 1.; for she was the daughter of Charles earl of Lenox, the younger brother of James's father lord Darnley. Her mother was Elizabeth daughter of sir William Cavendish. The Countess of Shrewsbury was aunt to lady Arabella, being sister to her mother. A marriage took place between lady Arabella | and sir William Seymour, who at the Restoration recovered the dukedom of Somerset for his family. Being a marriage with one so nearly related in blood to the king, and without his consent, it was deemed an offence against the royal prerogative,* on which account lady Arabella and her husband were imprisoned; the former in a private house at Lambeth, the latter in the Tower. But both escaped from their confinement with a view to retire abroad; and the countess of Shrews-Crompton, and not denied by the lady Arabelbury was taken into custody as privy and accessary to the escape of lady Arabella. On being examined by the privy-council, the countess refused to discover what she knew of the affair of the Marriage and Escape, or to subscribe her Examination; and for this refusal she was brought before a select coun-environed with evil spirits, cum perversis percil, whose proceedings on the occasion are the subject of the following Case. What we shall first lay before the reader is lord Coke's Account of the Case, from his 12th Report. Lord Bacon's Speech, which is next given, was first printed in the Cabala, but is here taken from the last edition of his Works, vol. 3, p. 265. For further particulars, relative to the Marriage of lady Arabella Stuart, and the Proceedings against her, sir William Seymour her husband, and lady Shrewsbury, the curious reader may consult Winwood's Memorials of State, vol. iii. p. 117. 119. 201. 279. 280. 281. 454." Hargrave.] the chancellor of the exchequer, the chancellor of the duchy, Fleming chief justice of the king's Bench, Philips master of the rolls, Coke C. J. of the Common Pleas, and Tanfield chief baron. The countess of Shrewsbury (the wife of Gilbert earl of Shrewsbury) then prisoner in the Tower, was brought before the said lords, and by the attorney and solicitor of the king was charged with a high and great contempt of dangerous conscquence; for they declared that the lady Arabella, being of the blood royal, had married Seymour, second son of the earl of, Hertford, without privity or assent of the king, for which contempt the said Seymour was committed to the Tower, and had escaped and fled beyond the seas; the lady Arabella being under restraint escaped also, and embarked herself upon the sea, and was taken before she got over; of which flight of the said lady Arabella, the said countess, being her aunt, very well knew and abetted, as is directly proved by Trin. 10 Jac. 1. la; and admit it, that the lady Arabella had no evil intent against the king (who had always a great and special care of her, and was very bountiful unto her, until her marriage with the said Seymour, which was the pomum vetitum :) yet when she fled, and when she should be certi possit, and when she shall be in another sphere, she will not move within the same orb. And the lords of the Privy Council, knowing the arcana imperii, did shew divers perilous consequences, and the rather for this, that the said countess is an obstinate popish recusant, and as was said, perverted also the lady Arabella. Now the Charge was in two points. 1. That the said countess of Shrewsbury, by commandment of the king, being called to the council table, before the lords of the council at White-hall, and there being required by the lords to declare her knowledge touching the said points, and to discover what she knew concerning them, for the safety of the king, and quiet of the realm; she answered, that she would not make any particular answer; and IN this term, before a select council at York-being again asked by the king's command by house; scil. the lord chancellor, the archbishop, the duke of Lenox, the earl of Northampton, lord privy seal, the earl of Suffolk, lord chamberlain, the earl of Worcester, the earl of Pembroke, viscount Erskin, viscount Rochford, the lord Zouch, the lord Knolls, the lord Wootton, With respect to the royal prerogative concerning the education and marriage of persons of the royal family, see the opinions of the judges, A. D. 1717, infra. & st. 12 G. 3, c. 11, and the debates thereon in Cobb. Parl. Hist. VOL. I the council at Lambeth, and being charged again to answer to the said point, she refused for two causes. 1. For that she had made a rash vow that she would not declare any thing in particular touching the said points; and for that (as she said) it was better to obey God than man. 2. She stood upon her privilege of no * Of contempts. See 1 Hawk. ch. 21. per tot. ch. 22. sect. 2, 3. 4, ch. 23, sect. 1, 2, 3, &c. ch. 24, sect. 2, 3, 4. 2 Hawk. ch. 10, sect. 15, 17, 19. 3 D. bility, soil. to answer only when she was called, judicially before her peers; for that such privilege was allowed (as she said) to William earl of Pembroke, and to the lord Lumley. 2. The second point of her charge was, that when such answer which she had made was put in writing, and read to her, yet she refused to subscribe to it. Which denial to discover and discharge her conscience in a case which toucheth the safety of the king, and quiet of the realm, was urged by the king's council to be a great and high contempt, and that nobility hath not any such privilege as is alleged, nor any such allowance as was supposed; and that rash and illegal vows make not an excuse, and that this precedent being now upon the stage, was of very dangerous consequence: and the said countess hearing the charge, yet persisted in her obstinate refusal, for the same reasons and causes upon which she had insisted before: and the lord chancellor began, and the archbishop, and all the other lords began with the first, and adjudged it a great and high contempt, and the lord chancellor said, that that was against the law of England, with which all the lords agreed.-And that no such allowance was given to the said earl of Pembroke, or to the lord Lumley in respect of their privilege of nobility, but that they were voces populi, et ideo non audiende and the lord archbishop principally proved, that as well the contempt, as the said rash vow was against the law of God, which he and the earl of Northampton principally proved by divers texts and examples in holy scripture. And the effect of all that which the three justices said, was, that after the sentences of all the learned, prudent, and bonourable personages and counsellors of estate, they might well be silent; but in regard that silentium in senatu est vitium, they would speak something briefly, viz. That three things in this case are to be well considered. 1. Whether the refusals aforesaid of the said countess were offences in law against the king, his crown and dignity. 2. What manner of proceeding this is, and whether it was justifiable by precedent or reason. 3. What is the demerit of the offences, and how punishable. As to the first, it was resolved by the justices and master of the rolls, that the denying to be examined was a high and great contempt in law, against the king, his crown and dignity; and that if it should be permitted, it would be an occasion of many high and dangerous designs against the king and the realm, which cannot be discovered: and upon hope of impunity it will be an encouragement to offenders, as Fleming justice said, to enterprize dangerous at tempts. And the Master of the Rolls said, that it was not any privilege of nobility, to refuse to be examined in this case, no more than of any subject. Also, if one that is noble, and a peer of the realm, be sued in the Star Chamber, or in Chancery, they ought to answer [Quare the er officio 1 oath 12 Co. 26, 27.] upon their oaths, (a) and may be examined in the Star Chamber upon interrogatories upon their oaths: and if one who is noble be produced as a witness between 66 (a)" But in 1623, the house of lords came to a Resolution, declaring it to be the antient right of the nobility of this kingdom and the lords of the upper house of parliament, to answer in all courts as defendants upon Protestation of Honour only. Journ. Dom. Proc. 6. May, 1628. This Resolution was in consequence of an order, made about two years before by the Star Chamber against the earl of Lincoln, to answer a bill on oath; though this order had passed after great deliberation, and was founded on an unanimous opinion of the lords of the privy council, and of all the judges except Doderridge who was absent. See the earl of Lincoln's Case, W. Jo. 152. Hutt. 87. Cro. Cha. 64. In 1640, the lords renewed the declaration of this privilege in answering as defendants without oath, with an explanation, that it extended to all answers and examinations on interrogatories, in all causes as well criminal as civil, and in all courts and commissions, and also to the widows and dowagers of temporal peers. Journ. Dom. Proc. 31 Dec. 1640. The present practice of our courts of equity conforms to this order of the lords." Hargrave.. A Peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but, upon his honour. 2 Inst. 49.-He answers also to Bills in Chancery upon his honour and not upon his oath; 1 P. W. 146; but when he is examined as a witness either in civil or criminal cases, he must be sworn, (whether in inferior courts, or in the high court of parliament) for the respect which the law shows to the honour of a peer does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis.' Salk. 512. Cro. Car. 64.-In many cases, the protestation of honour shall be sufficient for a peer; as in trial of peers, they proceed upon their bonour, (though formerly it was to be on oath), and in action of debt upon account the plaintiff being a peer, it shall suffice to examine his attorney, and not himself upon oath; but where a peer is to answer interrogatories, or make an athidavit, as well as where he is to be examined as a witness, he must be upon his oath. Bract. lib. 5. c. 9. 4 Rep. 49. 3 Inst. 29. W. Jones 152. 9 Salk. 512.-Sir Thomas Meers contra lord Stourton, in Canc'. Sir Thomas Meers exhibited a Bill against the lord Stourton, and it was ordered, that the lord Stourton should be examined upon interrogatories touching his title; and it was objected, That he being a peer of the realm, ought to answer upon his honour only; and it was ruled by Harcourt, Lord Keeper, that where a peer is to answer to a Bill, his Answer put in upon his honour is sufficient; but where a peer is to answer interrogatories, to make an atidavit, or be examined as a wit party and party, he ought to be sworn, or other in the cheque roll, compass or intend to kill any wise his testimony is 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 Common chief justice said, that forasinuch as where or- Pleas, a lord of parliament shall have knights der is neglected, confusion will follow, he would returned on his jury. 6. He shall have day of recite some of the honourable 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-them, but by those who are noble and peers of ceedings; and they will not be impertinent, but give a great light to the case now in hand. mon person in trial of life: and the writs of parliament, directed to the lords of parliament, are sub fide et ligeantia, &c. the realm. 8. In trial of a peer, the lords of parliament shall not swear, but they give their judgment super fidem et ligeantiam domino regi (1.) If a baron, 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 comtiff in any action, and the defendant will plead that the plaintiff is not a baron, viscount, earl, &c. as he is named in the writ, this shall not be tried at the common law by jury, who may be corrupted, nor by witnesses, as in the Star Chamber, or Chancery, who may be suborned; but it shall be tried by the record in Chancery, which imports by itself solid truth; so great regard hath the law to the trial of their honour and dignity, &c. (2.) Their persons have many honourable privileges in law. 1. At the suit of a subject their bodies shall not be arrested, neither capias | nor exigent lieth against them. 2. For the honour and reverence which the law gives to nobility, their bodies are not subject to torture in causá criminis læsæ majestatis. (a). 3. They are not to be sworn in assizes, juries, or other inquests. 4. If any servant of the king, named ness, he must be upon his oath.-In the pleas of parliament, 18 Edw. 1, between the earl of Gloucester and earl of Hereford, on long debate whether John de Hasting, a baron, ought to be sworn, because he was a peer of the realm, it was resolved that he ought to lay his hand on the book. The like was resolved, 10 Car. in B. R. by the court, where the lord Dorset's testimony was requisite. See Dy. 314. b. marg. pl. 98. See also 1 Cobb. Parl. Hist. 1202.-A bill was against a Peeress to discover deeds; she answers on her honour and confesses deeds. She shall produce them only upon her honour, and not on oath. Ch. Prec. 92. Jacob's Law Dict. Title, Peers.-In a case the earl of Shaftsbury against lord Digby, reported in 2 Mod. 98. Trin. T. 28 Car. 2. When this cause was tried at the bar, which was in Easter Term last, the lord Mohun offered to give his testimony for the plaintiff, but refused to be sworn, offering to speak upon his honour. But Wylde, Justice, told him, in causes between party and party he must be upon his oath. The lord Mohun asked him, whether be would answer it. The judge replied, that he delivered it as his opinion. And because he knew not whether it might cause him to be questioned in another place, he desired the rest of the judges to deliver their opinions, which they all did, and said he ought to be And so he was, but with a salvo jure; for he said there was an order in the house of Peers, that it is against the privilege of the house for any lord to be sworn.' sworn. And the reason and cause, that the king gives them many other privileges, is for this, because all honour and nobility is derived from the king as the true fountain: and the king honours with nobility, for two causes. 1. Ad consulendum, and for that reason he gives them a robe. 2. Ad defendendum regem et regnum, and for that cause he gives them a sword. And forasmuch as they derive their dignities, accompanied with all those honourable privileges, from the king, to deny to answer, being required thereto by the king, to such points as concern the safety of the king and quiet of the realm, is a high contempt and disobedience, accompanied with great ingratitude. This denial is contra ligeantiam suam (a) "It is surprising, that doctrine so reflecting on the law of England should escape from one of lord Coke's character. His language as attorney general at the Trials of the earls of Essex and Southampton implies the same obnoxious tenet. But in his third Institute he gives it as his opinion most decisively, that all Tortures of accused persons are contrary to our law; and to prove it cites lord chancellor Fortescue's famous book De laudibus legum Angliæ,' where he argues for a preference of our law to the civil law from the latter's allowance of torture. 3 Inst. 35. In the case of Felton, for the murder of the duke of Buckingham, the judges were unanimous, that Felton could not be tortured by the rack; for no such punishment,' said they, is known or allowed by our law.' 1 Rush. 638. 639. As to the instances of Torture collected by a most respectable writer of the present time, they only prove an irregularity of practice. Barrington Ant. Stat. 4th ed. 33. 88. 395. If torture was lawful, we should find rules to direct its application." Hargrave. The use of Torture appears to have been continued in Scotland until the Revolution, at which time it was complained against with other grievances. See 2 M'Dowall's Instit. of the Laws of Scotland 660. The use of torture in Scotland is abolished by "An act for improving the two kingdoms." Stat. 7 Anne, c. 21, § 5. Concerning the use of Torture among the Romans see Tit. ff. de Quæstionibust-See vol. 1, p. 505, note (c), |