Pagina-afbeeldingen
PDF
ePub

pened that Turner in playing struck out the baron's eye with his foil; upon which the baron, finding himself impatient under so great an affront, and not able to bear the loss of his eye without having his revenge, resolved to procure somebody to kill Turner; and among his other servants, he prevailed upon Gilbert Gray and Robert Carliel, Scotchmen, two of his followers, to shoot Turner upon the first opportunity that should offer. These two then undertook to accomplish this design, and indus

and all this appears in the said book; then it will be demanded, that forasmuch as there cannot be an accessory unless there is a principal, and in case there is no principal, how the heir of the accessory shall be restored to the land which his father had forfeited by the said unjust attainder? To that it is to be answered that the heir may enter, or have his action; for now upon the matter by act in law, the attainder against his father is without any writ of error utterly annulled, for by the reversal of the attainder against the principal, the at-triously endeavoured to execute it; but the tainder against the accessory, which depends upon the attainder of the principal, ipso facto is utterly defeated and annulled; and this notably appears in an ancient book, in the time of E. 1, tit. Mort-dauncest, 46. where the case is, A was indicted of felony, and B. of the receipt of A. A. eloined himself (and is outlawed): B. was taken, and put himself upon inquest, and found guilty, for which B. was attainted, and hanged, and the lord entered as into his escheat; and afterwards A. came, and reversed the outhwry, and pleaded to the felony, and was found not guilty, by which he was acquitted; whereupon the heir of B. brought a (f) Mortdauncester against the lord by escheat, who came and shewed all this matter, and there was a demur upon it; and it was awarded, that the heir of B. should recover seisen of the land; for if B. was now alive, he should go quit by the acquittal of A. because he could not be receiver of a felon, when A. is no felon; and all this appears in the said book Vide 4. E. 3, 36. b. in Dower 43 E. 3, 3. a. in Assise et Reides. 8 H. 4, 4. 11 H. 4, 4. 4 E. 4. 20. 6 E. 4, 9. 13 E. 4, 4. 9 H. 6, 38. b. 8 H. 7, 10. et vide the case of sentence (g) of deprivation of one, and presentment, institution, and induction of another; and after by relation of a general pardon, ipso facto, all are restored without appeal, or new presentation, admission, or institution, qd' vide (h) Dy. Nota reader, to oust all quest. to what gaol offenders shall be committed, it is enacted by the statute of (i) 5 H. 4, c. 10. that none shall be imprisoned by any justice of the peace, but only in the common gaol, saving to lords and others, who have gaols, their franchises in that case. By which it appears, how justices of peace offend, who commit felons, &c. to either of the Counters in London, and other prisons, which are not common gaols.

But forasmuch as several persons have earnestly desired to know the circumstances, as well of the proceeding, as of the fact itself, I will comply with their request.

Robert Creighton, baron of Sanchar, a Scotchman, about five years ago played at foils with John Turner a fencing-master, and it hap

(f) H. P. C. 270. 1 Rol. 777.

(g) 6 Co. 13. b. 14. Co. Inst. 238. Hob. 82. 293. Cr. El. 41. 789: Moor 132. Owen 87. Latch. 22. 141. 1 Sid. 164, 168. Palm. 412. (h) Dy. 235. pl. 19. 6 Co. 13. b.

(i) 2 Brownl. 41. 2 Inst. 48. Cor. El. 830.

ninth day of May last, Gray repenting of a purpose and act so barbarous, vile and bloody, being touched with the motion of the Holy Ghost, resolved to proceed no farther; which the baron of Sanchar being informed of, and that Gray slackened in his promise, Robert Carliel, as is aforesaid, undertook to execute what he had promised: who, the eleventh of May following, associating himself with James Irweng a Scotchman, of the frontiers, about seven o'clock in the evening came to a house in the Friars, which Turner used to frequent as he came from his school, which was near that place; and finding Turner there, they saluted one another; and Turner with one of his friends sat at the door asking them to drink; but Carliel and Irweng turning about to cock the pistol, came back immediately, and Carliel drawing it from under his coat, discharged it upon Turner, and gave him a mortal wound near the left pap; so that Turner, after having said these words, Lord have mercy opon me! I am killed; inmediately fell down. Whereupon Carliel and Irweng fled, Carliel to the town, and Irweng towards the river; but mistaking his way, and entering into a court where they sold wood, which was no thorough-fare, he was taken. Carliel likewise fled, and so did also the baron of Sanchar. The ordinary officers of justice did their utmost, but could not take them: for in fact, as appeared afterwards, Carliel fled into Scotland, and Gray towards the sea, thinking to go to Sweden, and Sanchar hid himself in England.

The impediments of justice, difficulties of law, and impossibilities of legal proceeding to take Carliel, the principal, which were in this case, are remarkable, and worthy of consideration. The cure and remedy of the whole ought to be only and wholly attributed to the great care of his most excellent majesty, and to his perpetual love and zeal for justice, as will clearly appear by what follows.

The impediments of justice were two: The truth of this fact, touching the baron of Sanchar, could not appear, because it consisted only in the words of his mouth by incitation and procurement; but by Gray and Carliel, who were fled, or by himself; and he was likewise gone.-2. It was not as yet known whither they were fled, and it could not be found out by all the search and diligence which was used by the officers and magistrates of justice.

The difficulties of law are manifest by the foregoing resolutions.

Impossibilities of legal proceeding.-1. It was impossible by legal process to apprehend the body of Carliel, being in Scotland.-It was impossible also to proceed against the baron of Sanchar, who was but an accessory, before the principal was attainted; a thing which would have required a very long proceeding, if he had not been taken.-Now therefore let us behold here the love and zeal which his majesty always had for justice, who being informed by some of his principal judges, with whom he had consulted touching the nature of this present case, and finding if this fact should be left to the ordinary proceeding of the law, Carliel the assassin could not be taken, and that no ordinary power had been able to find Gray the witness, nor Sanchar the author; lo! the king by proclamation gives authority to any person whatsoever to apprehend these three, with a promise of great reward.

Upon this, the baron of Sanchar, well knowing that the principal assassin and the witness were fled, surrendered himself, and denied that he incited or procured the fact: wherefore his majesty sent post to the sea-ports (the gates of the kingdom), as also into Scotland, and other places of his dominions, where his admir- | able prudence had hopes of finding them; and the Lord so crowned his royal thoughts, and gave such a blessing to his zeal for justice, that some of his couriers took Gray at the port of Harwich, ready to imbark for Sweden; and Carliel in Scotland, thinking to cross the sea for his greater safety. Gray then, being by his majesty's command examined, confessed the whole truth of the fact against the baron of Sanchar, who likewise by his majesty's direction being confronted with Gray, and particularly examined touching certain articles, special and pertinent sayings by his majesty himself, confessed by writing under his own hand, that he had incited and procured this assassination; and being pressed thereupon by the questions, he discovered a long and inveterate malice which he had had, with all the occasions and material circumstances of this murder.

His majesty having regard to that which the Holy Ghost admonishes us of (quia nan pro'fertur cito contra malos sententia, absque 'timore ullo filii homium perpetrans mala' (k) gave orders two days after, that Carliel the principal should be brought to London; that he and James Irweng, in full term, (a thing not usual) might be carried before the justices at Newgate, and attainted and convicted. And a few days after the baron of Sanchar was like

(k) Ecclesiast. 8. 11, Antea 118. b.

wise attainted and convicted at the King's Bench in full term; and in a short time after, to accomplish his majesty's zeal for justice, the baron Sanchar was (1) hanged publickly in term-time at the palace of Westminster, according to the judgment and sentence he had before received.

I have reported this case with all the circumstances, because this example has not its parallel: for although it is true, that the late queen Mary is very famous on account of the examplary justice which she caused to be executed upon baron Sturton, for the barbarous murder of Harquil; yet this present example of the baron of Sanchar very much surpasses that of the baron of Sturton, and that for many considerations. 1. Because the baron of Sturton was taken by the ordinary course of the law, even within the kingdom; but the principal in this case could not be taken by any common power, but by the means of his majesty's royal and absolute power only. 2. The baron of Sturton's offence was very apparent, and without any difficulty of law: on the contrary, this of Sanchar was thereof (as appears) very full; but by his majesty's command, all these difficulties, with the conference and grave consideration of his principal judges, after search of cases precedent, were resolved and cleared up, and notwithstanding the impediments, difficulties and impossibilities in legal proceeding, greater expedition was used in this case than in that. In short, the accomplishment of the whole, the clearing up the truth of the fact in the case of the baron of Sanchar, must be attributed to the great wisdom, power and vigilance of his majesty, as appears by that which has been thereof said before.

The baron of Sanchar was a man of a very ancient and noble family in Scotland; he was a man of great courage and wit, endowed with many excellent gifts, as well natural as acquired. The eloquence of his discourse, with the civility and discretion of his behaviour, when he came before and went from the judges, compelled the people (who honoured him on account of his moral virtues, and those for his sake) to bewail his fall with great grief (although the occasion of it was this base and barbarous assassination, premeditated for five years together with a malice bloody and inveterate): this extraordinary affection of the people was, as he himself confessed, a very great consolation to him in his last troubles and afflictions. But at last their compassion abated, because they perceived he died a true Catholick.

(1) 3 Inst. 13.

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 gentleinan, 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 excrcising 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 secms 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 geGeral: the other, a slander and depravation of the king's power and bonour 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. Se

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 bis majesty, and his council, than by bravery of dispute or peremptory opposition.

well begun, both in the true state and in the 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 common-condly, that he runneth into the generality of wealth 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 tell 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 ious 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 Hugh 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 mis-Whitelocke did not advise his client to acquaint take 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

6

6

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. 3, 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.

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.

6

[ocr errors]

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.]

Seymour, second son of the earl of Hertford, without privity or assent of the king, for which contempt the said Seymour was com mitted to the Tower, and had escaped and fled beyond the seas; the lady Arabella being under restraint escaped also, and embarked her self 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

["The occasion of examining lady Shrewsbury | the chancellor of the exchequer, the chancellor before the Privy Council, was her conduct of the duchy, Fleming chief justice of the king's in respect to the marriage of lady Stuart. Bench, Philips master of the rolls, Coke C. J. This fatter lady was first-cousin to James 1.; of the Common Pleas, 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 James'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 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 council, 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." Har'grave.]

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 ber marriage with the said Seymour, which was the pomum velitum :) yet when she fled, and when she should be environed with evil spirits, cum perversis perverti 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 Pem-| broke, 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. II.

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, 8. 4, ch. 23, sect. 1, 2, 3, &c. ch. 24, sect. 2, 3, 4. 2 Hawk. ch. 10, sect. 15, 17, 19. j D

« VorigeDoorgaan »