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bility, scil. 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 adjudzed 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 audienda 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 honourable personages and counsellors of estate, they might well be silent; but in regard that silen tium 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 manBer 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 realin, which cannot be discovered: and upon hope of impunity it will be an encouragement to offenders, as Fleming justice said, to enterprize dangerous attempts.

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 [Quære the ex officio

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

(a)" But in 1628, 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 Resolation 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. 1610. 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.-lle 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 for as to overturn a settled maxim, that

in judicio non creditur nisi juratis.' Salk. 512. Cro. Car. 61.—In many cases, the protestation of honour shall be sufficient for a peer; as in trial of peers, they proceed upon their honour, (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 atidavit, 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. 2 Salk. 512.-Sir Thomas Meers contra lord Stourton, in Cane'. Sir Thomas Meers exhibited a Bill against the ford 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 Ans swer put in upon his honour is sufficient; but where a peer is to answer interrogatories, to make an affidavit, or be examined as a wit

party and party, he ought to be sworn, or other wise his testimony is of no value; and so is the common experience in the said courts: and the chief justice said, that forasinuch as where order is neglected, confusion will follow, he would recite some of the honourable privileges which the law of England (more than any other law) attribute to the nobility of England in legal proceedings; and they will not be impertinent, but give a great light to the case now in

band.

(1.) If a baron, viscount, earl, or other lord of parliament and peer of the realm be plaintiff in any action, and the defendant will plead toat 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 bonour 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 bonour. But Wylde, Justice, told him, in causes between party and party he must be upon his oath. The lord Mohun asked him, whether he 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 sworn. 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.'

in the cheque roll, compass or intend to kill any lord of parliament, or other lord of the king's council, this is felony. 5. In the Common Pleas, a lord of parliament shall have knights returned on his jury. 6. He shall have day of grace. 7. A lord of parliament shall not be tried in case of treason, felony, or misprision of them, but by those who are noble and peers of 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 debitam, so that their faith and allegiance stands in equipoise with an oath in the case of a common person in trial of life: and the writs of parliament, directed to the lords of parliament, are sub fide et ligeantia, &c.

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.

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This denial is contra ligeantiam suam

(a) "It is surprising, that doctrine so rcflecting 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 coutrary to our law; and to prove it cites lord chancellor Fortescue's famous book' De laudibus leguin 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. $3. 88, 395. If torture was lawful, we should find rules to direct its application." Hargrave.

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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. #. de Questionibus-See vol. 1, p. 505, note (c).

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precedent of the earl of Essex, against whom such proceedings were in this very place, anno 42 and 43 Eliz. reg.

be fined 20,000l. and imprisoned during the king's pleasure. Vide 12 Co. 69, &c.

'Hoc in terrorem, sed quære quid inde venit?' SPEECH of sir FRANCIS BACON, from vol. iii. of his Works,* 4to edit. p. 265.

debitam,' against the faith an allegiance of a person noble, due to the king, and which the law greatly esteems. And that this 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 præstabo domino regi de vità et membro, et 'de terreno honore, ad vivendum et moriendum 'contra omnes gentes, &c. Et si cognoscam aut audiam de aliquo damno aut malo quod 'domino regi evenire poterit, quod non reve'lato,' &c. And this oath of allegiance is Your lordships do observe the nature of this common 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 pernobleman, than of one of the commons, for this,sisted in refusal to answer, and to be examined that the breach of their allegiance is more dan gerous to the king and estate, for corruptio optimorum est pessima;' and for this reason, the countess by her allegiance was bound, without being demanded, to reveal to the king what she knows concerning the premises, upon which great mischief may happen to the king and the realm. But being commanded by the king to declare her knowledge, the denying of it doth greatly aggravate the offence. Qui contemnit præceptum, contemnit præcipientem.' Gom-withstanding, extremely ill-advised, transacted mand and obedience are the ligament of government, and ligeantia est legis essentia;' for without allegiance and obedience, the law cannot proceed.

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in a high cause of state, being examined by the council table, which is a representative body of the king. The nature of the cause, upon which she was examined, is an essential point, which doth aggravate and increase this contempt and presumption; and therefore of necessity with that we must begin. How graciously and parent-like his majesty used the lady Arabella before she gave him cause of indignation, the world knoweth. My lady not

the most weighty and binding part and action of her life, which is her marriage, without acquainting his majesty; which had been a neglect 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 she is matched; for it was not unmonendum,' 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 offence with a far greater than the former, by ont 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. offence may submit herself to the king, without any punishment in any court judicially.

If Sentence shall be given in the Star-Chamber according to justice, you the lords shall be agents in it but in this manner according to the mercy of the king, the king is only agent; the law hath put rules and limits to the justice of the king, but not unto his mercy, that is transcendant and without any limits of the law; ⚫ et ideo processus iste est regalis plane et rege dignus.'

Also inasmuch as the allegiance and obedience of the subject, is the best flower in his imperial-garland. to the intent, that it may nerther be blasted, nor impaired by this dangerous example, to the prejudice of his royal preroga tive and posterity, this proceeding hath been thought necessary: and this is fortified by the

* Vide the earl of Essex's case, 42 & 43 Eliz.424.

That this flight or escape into foreign parts might have been seed of trouble to this state, is a matter whereof the conceit of a vulgar person is not uncapable. For although my lady should have put on a mind to continue her loyalty, as nature and duty did bind her; yet when she was in another sphere, she must have moved in the motion of that orb, and not of the planet itself: and God forbid the king's felicity should be so little, as he should not have envy and enviers enough in foreign parts. It is true, if any foreigner had wrought upon this occasion, I do not doubt but the intent would have been, as the prophet saith, they have conceived mischief, and brought forth a vain thing.' But yet your lordships know

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In addition to the particulars collected by Mr. Barrington, see 3 Harl. Misc. 124, 130, 182, 537, and Birch's edition of Bacon's works, vol. 3, p. 259, 478.

that it is wisdom in princes, and it is a watch | fact which is open, and the intent which is they owe to themselves and to their people, to secret. This fact of conspiring in the flight or stop the beginnings of evils, and not to despise this lady may bear a hard and gentler conthem. Seneca saith well, non jam amplius struction; if upon overmuch affection to your levia sunt pericula, si levia videantur;' dan kinswoman, gentler; if upon practice or other gers cease to be light, because by despising they end, harder. You must take heed how you grow and gather strength. enter into such actions; whereof if the hidden part be drawn unto that which is open, it may be your overthrow; which I speak not by way of charge, but by way of caution.

For that which you are properly charged with, you must know that all subjects, without distinction of degrees, owe to the king tribute and service, not only of their deed and hand, but of their knowledge and discovery. If there be any thing that imports the king's service, they ought themselves undemanded to impart it; much more if they be called and examined, whether it be of their own fact or of another's, they ought to make direct answer. Neither was there ever any subject brought in causes of estate to trial judicial, but first he passed exa

justice in criminal causes; it is one of the eyes of the king's politic body; there are but two, information and examination; it may not be endured that one of the lights be put out by your example.

And accordingly hath been the practice both of the wisest and stoutest princes to hold for matter pregnant of peril, to have any near them in blood to fly into foreign parts. Wherein I will not wander; but take the example of king Henry the seventh, a prince not unfit to be paralleled with his majesty. I mean not the particular of Perkin Warbeck, for he was but an idol or a disguise; but the example I mean, is that of the earl of Suffolk, whom the king extorted from Philip of Austria. The story is memorable, that Philip, after the death of Isabella, coming to take possession of his kingdom of Castile, which was but matrimonial to his father-in-law Ferdinando of Aragon, was cast by weather upon the coast of Weymouth,mination; for examination is the entrance of where the Italian story saith, king Henry used him in all things else as a prince, but in one thing as a prisoner; for he forced upon him a promise to restore the earl of Suffolk that was fled into Flanders. And yet this I note was in the 21st year of his reign, when the king had a goodly prince at man's estate, besides his daughters, nay, and the whole line of Clarence nearer in title; for that earl of Suffolk was descended of a sister of Edward the fourth. So far off did that king take his aim. To this action of so deep consequence, it appeareth, you, my lady of Shrewsbury, were privy, not upon foreign suspicions or strained inferences, but upon vehement presumptions, now clear and particular testimony, as hath been opened to you; so as the king had not only reason to exmine you upon it, but to have proceeded with you upon it as for a great contempt; which if it be reserved for the present, your ladyship is to understand it aright, that it is not defect of proof, but abundance of grace that is the cause of this proceeding; and your ladyship shall do well to see into what danger you have brought yourself. All offences consist of the

Your excuses are not worthy your own judg ment; rash vows of lawful things are to be kept, but unlawfuł vows not; your own divines will tell you so. For your examples, they are some erroneous traditions. My lord of Penbroke spake somewhat that he was unlettered, and it was but when he was examined by one private counsellor, to whom he took exception. That of my lord Lumley is a fiction; the preeminences of nobility I would hold with to the last grain; but every day's experience is to the contrary. Nay, you may learn duty of lady Arabella herself, a lady of the blood, of an higher rank than yourself, who declining, and yet that but by request neither, to declare of your fact, yieldeth ingenuously to be cxamined of her own. I do not doubt but by this time you see both your own error, and the king's grace in proceeding with you in this

manner.

95. Case of Mr. WILLIAM TALBOT, Hilary-Term, on an Information ore tenus, for maintaining a Power in the Pope to depose

and kill Kings: 11 JAMES I. [" In lord Bacon's Works there is a Speech by him as Attorney-General and prosecutor in this Case, 2 Bac. last 4to ed. 577. According to the title of the Speech, the cause of the prosecution appears to have been this. Mr. Talbot, who was a counsellor at law of Ireland, being asked, whether the doctrine of Suarez in respect to the deposing and killing of kings excommunicated was true or not, answered, that he submitted his opinion to the judgment of the Roman Catholic church. This answer he subscribed, and we

A. D. 1613.

presume, that it was given on being examined before the Privy-Council; though that circumstance is not expressly stated by lord Bacon. What the Judgment of the StarChamber was, we do not find noticed." Hargrave.]

SPEECH of Sir FRANCIS BACON, Attorney-Gene

ral, the last day of Hilary-Term, 11 Jam. 1. MY Lords; I brought before you the first sitting of this term the cause of Duels. But now this last sitting I shall bring before you

a cause concerning the greatest Duel which is in the Christian world, the duel and conflict between the lawful authority of sovereign kings, which is God's ordinance for the comfort of human society, and the swelling pride and usurpation of the see of Rome in temporalibus, tending altogether to anarchy and confusion. Wherein if this pretence in the pope of Rome, by cartels to make sovereign princes as the banditti, and to proscribe their lives, and to expose their kingdoms to prey; if these pretences, I say, and all persons that submit themselves to that part of the pope's power in the least degree, be not by all possible severity repressed and punished, the state of Christian kings will | be no other than the ancient torment described by the poets in the hell of the heathen; a man sitting richly robed, solemnly attended, delicious fare, &c. with a sword hanging over his head, hanging by a small thread, ready every moment to be cut down by an accursing and accursed hand. Surely I had thought they had been the prerogatives of God alone, and of his secret judgments: solvam cingula regum, I will loosen the girdles of kings;' or again, he poureth contempt upon princes;' or, 'I will give a king in my wrath and take him away again in my displeasure:' and the like. But if these be the claims of a mortal man, certainly they are but the mysteries of that person, which 'exalts himself above all that is called God,' supra omne quod dicitur Deus.' Note it well, not above God, though that in a sense be true, but above all that is called God;' that is, lawful kings and magistrates.

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But, my lords, in this duel I find this Talbot, that is now before you, but a coward; for he hath given ground, he hath gone backward and forward; but in such a fashion, and with such interchange of repenting and relapsing, as I cannot tell whether it doth extenuate or aggravate his offence. If he shall more publicly in the face of the court fall and settle upon a right mind, I shall be glad of it; and he that would be against the king's mercy, I would he might need the king's mercy: but nevertheless the court will proceed by rules of justice. The offence, therefore, wherewith I charge this Talbot, prisoner at the bar, is this in brief and in effect: that he hath maintained and maintaineth under his hand a power in the pope for the deposing and murdering of kings. In what sort he doth this, when I come to the proper and particular charge, I will deliver it in his own words without pressing or straining.

But before I come to the particular charge of this man, I cannot proceed so coldly; but I must express unto your lordships the extreme and imminent danger wherein our dear and dread sovereign is, and in him we all, nay, all princes of both religions, for it is a common cause, do stand at this day, by the spreading and inforcing of this furious and pernicious opinion of the pope's temporal power; which though the modest sort would blanch with the distinction of in ordine ad spiritualia, yet that is but an illusion; for he that maketh the dis

tinction, will also make the case. This peril, Though it be in itself notorious, yet because there is a kind of dullness, and almost a lethargy in this age, give me leave to set before you two glasses, such as certainly the like never met in one age; the glass of France and the glass of England. In that of France the tragedies acted and executed in two immediate kings; in the glass of England, the same, or more horrible, attempted likewise in a queen and king immediate, but ending in a happy deliverance. In France, Henry 3, in the face of his army, before the walls of Paris, stabbed by a wretched Jacobine frier. Henry 4, a prince that the French do surname the Great, one that had been a saviour and redeemer of his country from infinite calamities, and a restorer of that monarchy to the ancient state and splendor, and a prince almost heroical, except it be in the point of revolt from religion, at a time when he was as it were to mount on horseback for the commanding of the greatest forces that of long time had been levied in France, this king likewise stillettoed by a rascal votary, which had been enchanted and conjured for the purpose.

In England, queen Elizabeth, of blessed memory, a queen comparable and to be ranked with the greatest kings, oftentimes attempted by like votaries, Somerville, Parry, Savage, and others, but still protected by the Watchman that slumbereth not. Again, our excellent sovereign king James, the sweetness and clemency of whose nature were enough to quench and mortify all malignity, and a king shielded and supported by posterity; yet this king in the chair of majesty, has vine and olive branches about him, attended by his nobles and third estate in parliament; ready in the twinkling of an eye, as if it had been a particular doomsday, to have been brought to ashes, dispersed to the four winds. I noted the last day my lord chief justice, when he spoke of this Powder Treason, he laboured for words; though they came from him with great efficacy, yet he truly confessed, and so must all men, that that treason is above the charge and report of any words whatsoever.

Now, my lords, I cannot let pass, but in these glasses which I speak of, besides the facts themselves and danger, to shew you two things: the one, the ways of God Almighty, which turneth the sword of Rome upon the kings that are the vassals of Rome, and over them gives it power; but protecteth those kings, which have not accepted the yoke of his tyranny, from the effects of his malice: the other, that, as I said at first, this is a common cause of princes: it involveth kings of both religions; and therefore his majesty did most worthily and prudently ring out the alarm-bell, to awake all other princes to think of it seriously and in time. But this is a miserable case the while, that these Roman soldiers do either thrust the spear into the sides of God's anointed, or at least they crown them with thorns; that is, piercing and pricking cares and fears, that they can never be quiet or secure of their lives or states. And as this peril is common to princes of both religions, so

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