sent herewith to your majesty, who can best discern and judge both of this little which is done, and what may be expected of the multiplicity of other cases of the like sort, if they shall be brought to further examination. All that I have done in this hath been by your majesty's commandment and direction, in presence of all your learned counsel, and by the special assistance and advice of your attorney and solicitor. 2, chap. 38, "et artic. super cart." chap. 9, Herle saith, Some statutes are made against law and right, which they, that made them, perceiving, would not put them in execution. The statute of H. II. chap. 21, gives a writ of "Cessavit hæredi petenti super hæredem tenent et super eos, quibus alienatum fuerit hujusmodi tenementum." And yet it is adjudged in 33 E. III. tit. cessavit" 42, where the case was, Two copartners, lords and tenant by fealty and certain rent; the one copartner hath issue, and dieth, the aunt and the niece shall not join in a I know obedience is better than sacrifice; for otherwise I would have been an humble suitor to your majesty to have been spared in all service concerning the lord chief justice. I thank God," cessavit," because that the heir shall not have I forget not the fifth petition, "Dimitte nobis debita nostra sicut, etc.;" but withal I have learned this distinction: there is, 1. "Remissio vindictæ." 2. "Remissio pœnæ." 3. "Remissio judicii." The two first I am past, and have freely and clearly remitted. But the last, which is of judgment and discretion, I trust I may in Christianity and with good conscience retain, and not to trust too far, etc. I must beseech your majesty's favour to excuse me for all that I have here before written, but specially for this last needless passage; wherein I fear your majesty will note me to play the divine, without learning, and out of season. So, with my continual prayers to God to preserve your majesty with long, healthful, and happy life, and all earthly and heavenly felicity, I rest Your majesty's humble and faithful subject and servant, At York House, 22 Oct. 1616. T. ELLESMERE, Canc. THE HUMBLE AND DIRECT ANSWER TO THE FOURTH QUESTION ARISING OUT OF DR. BONHAM'S CASE. In this case I am required to deliver what I mean by this passage therein, That in many cases the common law shall control acts of parliament; and sometimes shall adjudge them to be merely void; for where an act of parliament is against common right and reason, the common law shall control it, and adjudge it to be void. The words of my report do not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in ancient and former times, and were cited in the argument of Bonham's case; and, therefore, the words of my book are these: "It appeareth in our books, that in many cases the common law shall control acts of parliament, and sometimes shall adjudge them to be utterly void; for when an act of parliament is against common right and reason, or repugnant or impossible to be performed, the common law shall control this, and adjudge such act to be void." And, therefore, in 8 E. III. 30, Thomas Tregor's case, upon the statute of West. a "cessavit," for the cessor in his ancestor's time. Fitz. N. B. 209, F; and herewith accords Plow. Com. 110. And the reason is, because that in a "cessavit," the tenant, before judgment, may render the arrearages and damages, etc., and retain his land: and this he cannot do, when the heir bringeth a "cessavit" for the cessor in the time of his ancestor; for the arrearages incurred in the life of his ancestor do not belong to the heir. And, because that this is against common right and reason, the common law adjudges the said act of parliament as to this point void. The statute of Carlisle, made anno, 35 E. I. enacteth, That the order of the Cistertians and Augustins have a convent and common seal; that the common seal shall be in the custody of the prior, which is under the abbot, and four others of the discreetest of the house; and that any deed sealed with the common seal, that is not so kept, shall be void. And the opinion in the 27 H. VI. tit. Annuity 41, was, that this statute is void; for the words of the book are, it is impertinent to be observed: for the seal being in their custody, the abbot cannot seal any thing with it; and, when it is in the hands of the abbot, it is out of their custody "ipso facto." And, if the statute should be observed, every common seal might be defeated by a simple surmise, which cannot be. Note, reader, the words of the said statute made at Carlisle, anno, 35 E. I. which is called "Statutum Religiosorum," are these: "Et insuper ordinavit dominus rex et statuit, quod abbates Cistercienses et Præmonstratenses ordinum religiosorum, etc. de cetero habeant sigillum commune, et illud in custodia prioris monasterii seu domus et quatuor de dignioribus et discretioribus ejusdem loci conventus sub privato sigillo abbatis ipsius loci custod. deponend. Et si forsan aliqua scripta obligationum, donationum, emptionum, venditionum, alienationum, seu aliorum quorumcunque contractuum alio sigillo quam tali sigillo communi sicut præmittitur custodit, inveniatur amodo, sigillata pro nullo penitus habeantur, omnique careant firmitate." So the statute of 1 E. VI. chap. 14, gives chanteries, etc., to the king, saving to the donor, etc., all such rents, services, etc.; and the common law controls this, and adjudges it void as to the services; and the donor shall have the rent as a rent-seck to distrain of common right; for it should be against common right and reason, that the king should hold of any, or do suit to any of his subjects, 14 Eliz. Dyer, 313. And so it was adjudged Mich. 16 and 17 Eliz. in the common place in Stroud's case. So, if any act of parliament give to any to hold, or to have conusance of all manner of pleas before him arising within his manor of D., yet he shall hold no plea, whereunto himself is a party, for "Iniquum est aliquem suæ rei esse judicem." Above a year past, in my late lord chancellor's time, information was given to his majesty, that I having published in eleven works or books of reports, containing above 600 cases one with another, had written many things against his ma Which cases being cited in the argument of this case, and I finding them truly vouched, I re-jesty's prerogative. And I being by his majesty's ported them in this case, as my part was, and had no other meaning than so far as those particular cases there cited do extend unto. And therefore the beginning is, It appeareth in our books, etc. And so it may be explained, as it was truly intended. In all which I most humbly submit myself to your majesty's princely censure and judgment. EDW. COKE. THE HUMBLE AND DIRECT ANSWER TO THE LAST QUESTION ARISING UPON BAGG'S CASE. It was resolved, that to this court of the king's bench belongeth authority not only to correct errors in judicial proceedings, but other errors and misdemeanors tending to the breach of the peace, or oppression of the subjects, or to the raising of faction or other misgovernment: so that no wrong er injury either public or private can be done, but it shall be reformed and punished by law. Being commanded to explain myself concerning these words, and principally concerning this word, "misgovernment;" I answer, that the subject-matter of that case concerned the misgovernment of the mayors and other the magistrates of Plymouth. And I intended for the persons the misgovernment of such inferior magistrates for the matters in committing wrong or injury, either public or private, punishable by law, and therefore the last clause was added, "and so no wrong or injury, either public or private, can be done, but it shall be reformed and punished by law ;" and the rule is "verba intelligenda sunt secundum subjectam materiam." And that they and other corporations might know, that factions and other misgovernments amongst them, either by oppression, bribery, unjust disfranchisements, or other wrong or injury, public or private, are to be redressed and punished by law, it was so reported. But, if any scruple remains to clear it, these words may be added "by inferior magistrates;" and so the sense shall be by faction or misgovern gracious favour called thereunto, all the exceptions, that could be taken to so many cases in so many books, fell to five, and the most of them too were by passages in general words; all which I offered to explain in such sort, as no shadow should remain against his majesty's prerogative, as in truth there did not; which whether it were related to his majesty, I know not. But thereupon the matter has slept all this time; and now the matter, after this ever blessed marriage, is revived, and two judges are called by my lord keeper to the former, that were named. My humble suit to your lordship is, that if his majesty shall not be satisfied with my former offer, viz. by advice of the judges to explain and publish as is aforesaid those five points, so as no shadow may remain against his prerogative; that then all the judges of England may be called hereunto. 2. That they may certify also what cases I have published for his majesty's prerogative and benefit, for the good of the church, and quieting of men's inheritances, and good of the commonwealth; for which purpose I have drawn a minute of a letter to the judges, which I assure myself your lordship will judge reasonable; and so reposing myself upon your lordship's protection, I shall ever remain, Your most bounden servant, 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. in general terms; all which Sir Edward offered, | charged, for as to Sir Robert Mansell, I take it as we are informed, to explain and publish, so as no shadow might remain against our prerogative. And whereas, of late two other judges are called to the others formerly named. Now our pleasure and intention being to be informed of the whole truth, and that right be done to all, do think it fit, that all the judges of England, and barons of the exchequer, who have principal care of our prerogative and benefit, do assemble together concerning the discussing of that, which, as is aforesaid, was formerly referred; and also what cases Sir Edward Coke hath published to the maintenance of our prerogative and benefit, for the safety and increase of the revenues of the church, and for the quieting of men's inheritances, and the general good of the commonwealth: in all which we require your advice and careful considerations; and that before you make any certificate to us, you confer with the said Sir Edward, so as all things may be the better eleared. To all the judges of England, and barons of the exchequer. Instaurare paras veterum documenta sophorum: And over the device of the ship passing between Hercules's pillars, Sir Edward has written the two following verses: "It deserveth not to be read in schooles, But to be freighted in the Ship of Fools:" alluding to a famous book of Sebastian Brand, born at Strasburgh about 1460, written in Latin and High Dutch verse, and translated into English in 1508, by Alexander Barklay, and printed at London the year following by Richard Pynson, printer to Henry VII. and Henry VIII., in folio, with the following title, "The Shyp of Follys of the World: translated in the Coll. of Saynt Mary Otery in the counte of Devonshyre, oute of Latin, Frenche, and Doche, into Englesshe tongue, by Alex. Barklay, preste and chaplen in the said College м,CCCCC, VIII." It was dedicated by the translator to Thomas Cornish, Bishop of Tine, and suffragan Bishop of Wells, and adorned with great variety of wooden cuts. THE CHARGE AGAINST MR. WHITELOCK.* MY LORDS, This offence is fit to be opened and set before your lordships, as it hath been 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 Hebrew's commonwealth, was therefore held in the gate, to show 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 style the king Defender of the Faith, because he receives not the discipline and presbytery; and the lawyer will tell him, it is no his opinion to Sir Robert Mansell, treasurer of the navy, and vice-admiral, that the commission to the Earl of Nottingham, lord high admiral, for reviewing and reforming the disorders law; though Mr. Whitelocke had given that opinion only in private to his client, and not under his hand. Sir Robert Mansell was also committed to the Marshalsea, for animating the lord admiral against the commission. [Sir Ralph Windwood's Memorials of State, Vol. III. p. 460.] This Mr. Whitelocke was probably the same with James Whitelocke, who was born in London, 28 November, 1572, educated at Merand studied law in the Middle Temple, of which he was summer reader in 1619. In the preceding year, 1618, he stood for the place of recorder of the city of London, but was not elect committed by the officers of the navy, was not according to chant-taylor's school there, and St. John's college in Oxford, ed to it, Robert Heath, Esq. being chosen on the 10th of November, chiefly by the recommendation of the king, the city having been told, that they must choose none whom his majesty should refuse, as he did in particular except to Mr. Whitelocke by name. [MS. letter of Mr. Chamberlain to Sir Dudley Carleton, November 14, 1816.] Mr. Whitelocke, however, was called to the degree of serjeant in Trinity term, The offence, wherewith Mr Whitelocke is 1620, knighted, made chief justice of Chester; and at last, on He had been committed, in May, 1613, to the Fleet, for speaking too boldly against the marshal's court, and for giving the 18th of October, 1624, one of the justices of the king's bench; in which post he died, June, 1632. He was father of Bulstrode Whitelocke, Esq.; commissioner of the great seal. part of the king's style, it will go hard with such | exceeding tender and sparing in it; so that there a lawyer. Or if a tribunitious 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. is in all our law not three cases of it. And in that very case of 24 Ed. III. ass. pl. s. which Mr. Whitelocke vouched, where, as 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 show 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 Therefore, let no man mistake so far, as to con- too great a matter for him to deal in; or this is ceive, that any lawful and due liberty of the sub- my opinion, which is nothing, etc. But "illotis ject for asking counsel in law is called in question manibus," he takes it into his hands, and prowhen points of disloyalty or of contempt are re-nounceth of it, as a man would scarcely do of a strained. Nay, we see it is the grace and favour warrant of a justice of peace, and speaks like a of the king and his courts, that if the case be ten- dictator, that "this is law," and "this is against der, and a wise lawyer in modesty and discretion law," etc.* refuseth to be of counsel, for you have lawyers sometimes too nice as well as too bold, they are then ruled and assigned to be of counsel. For certainly counsel is the blind man's guide; and sorry I am with all my heart, that in this case the blind 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 general; 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 commissions 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. ROBERT EARL OF SOMERSET TO SIR THOMAS SIR, I have considered that my answer to you, and what I have otherwise to say, will exceed the bounds of a letter; and now having not much time to use betwixt my waiting on the king, and the removes we do make in this our little progress, I thought fit to use the same man to you, whom I have heretofore many times employed in the same business. He has, besides, an account and a better description of me to give you, to *Sir H. Wotton, in a letter of his to Sir Edmund Bacon, [Reliq. Wotton, p. 421, edit. 3d,] written about the beginning of June, 1613, mentions, that Sir Robert Mansell and Mr. Whitelocke were, on the Saturday before, called to a very honourable hearing in the queen's presence-chamber at Whitehall, before the lords of the council, with intervention of the Lord Chief Justice Coke, the Lord Chief Baron Tanfield, and the master of the rolls; the lord chief justice of the king's bench, Fleming, being kept at home by some infirmity. There the attorney and solicitor first undertook Mr. Whitelocke, and the recorder, [Henry Montagu,] as the king's serjeant, Sir Robert Mansell, charging the one as a counsellor, the other as a ques tioner, in matters of the king's prerogative and sovereignty upon occasion of a commission intended for a research into the administration of the admiralty. "Whitelocke in his answer," adds Sir Henry Wotton, "spake more confusedly than was expected from a lawyer; and the knight more temended his speech with an absolute confession of his own perately than was expected from a soldier . . . . Whitelocke offence, and with a promise of employing himself hereafter in defence of the king's prerogative.... In this they generally agreed, both counsellors and judges, to represent the humiliation of both the prisoners to the king, in lieu of innocency, and to intercede for his gracious pardon: which was done, and accordingly the next day they were enlarged upon a submission Of this kind is that properly to be understood, which is said in Bracton, "De chartis et factis regiis non debent aut possunt justitiarii aut privatæ personæ disputare, sed tutius est, ut expectetur sententia regis." He was committed to the Tower on the 21st of April, 1613, And the king's courts themselves have been and died there of poison on the 15th of September following. under writing." make a repetition of the former carriages of all this business, that you may distinguish that, which he did by knowledge of mine and direction, and betwixt that he did out of his own discretion, without my warrant. With all this he has to renew to you a former desire of mine, which was the groundwork of this, and the chief errand of his coming to you, wherein I desire your answer by him. I would not employ this gentleman to you, if he were, as you conceit of him, your unfriend, or an ill instrument betwixt us. So owe him the testimony of one, that has spoken as honestly, and given more praises of you, than any man that has spoken to me. My haste at this time makes me to end sooner than I expected: but the subject of my next sending shall be to answer that part you give me in your love, with a return of the same from Your assured loving friend, R. SOMERSET. Endorsed, Lord Somerset's first letter. TO THE KING. IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY, We have, with all possible care and diligence, considered Cotton's* cause, the former and the The case of this gentleman will render the detail of it necessary for the illustration of this letter; and the circumstances of it, not known in our history, may be thought to deserve the reader's attention. He was a native of the West of England, and a recusant, against whom a proclamation was issued in June, 1613, charging him with high treason against the king and state, for having published a very scandalous and railing book against his majesty, under the title of Balaam's Ass, which was dropped in the gallery at Whitehall. Just at the time of publishing this proclamation, he happened to cross the Thames, and inquiring of the watermen what news? they, not knowing him, told him of the proclamation. At 'anding, he muffled himself up in his cloak, to avoid being known; but had not gone many paces, when one Mr. Maine, a friend of his, meeting and discovering him, warned him of his danger; and being asked what he would advise him to do, recommended it to him to surrender himself; which he did to the Earl of Southampton. He denied himself to be the author of the libel but his study being searched, among his papers were found many parts of the book, together with relics of those persons who had been executed for the gunpowder treason, as one of Sir Everard Digby's fingers, a toe of Thomas Percy, some other part of Catesby or Rookewood, and a piece of one of Peter Lambert's ribs. He was kept prisoner in the Tower till March, 1618, when the true author of the libel was discovered to be John Williams, Esq., a barrister of the Middle Temple, who had been expelled the House of Commons on account of his being a Papist. The discovery was owing to this accident a pursuivant in want of money, and desirous to get some by his employment, waited at the Spanish ambassador's door, to see if he could light upon any prey. At last came out Mr. Williams, unknown to the pursuivant; but carrying, in his conceit, the countenance of a priest. The pursuivant, therefore, followed him to his inn, where Williams having mounted his horse, the pursuivant came to him, and told him, that he must speak a word or two with him. "Marry, with all my heart," said Williams; "what is your pleasure?" You must light, answered the pursuivant: for you are a priest. “A priest?" replied Williams; "I have a good warrant to the contrary, for I have a wife and children." Being, however, obliged to dismount, the pursuivant searched him; and in his pocket was found a latter, touching the book and the letter in the gilt apple, and have advisedly perused and weighed all the examinations and collections which were formerly taken; wherein we might attribute a good deal of worthy industry and watchful inquiry to my Lord of Canterbury. We thought fit also to take some new examinations; which was the cause we certified no sooner. Upon the whole matter, we find the cause of his imprisonment just, and the suspicions and presumptions many and great; which we little need to mention, because your majesty did relate and enforce them to us in better perfection, than we can express bundle of papers sealed up; which the pursuivant going to open, Williams made some resistance, pretending they were evidences of a gentleman whose law businesses he transacted. The pursuivant insisting upon opening the papers, among them was found Balaam's Ass, with new annotations; of which, upon examination, Williams confessed himself to be the author. He was brought to trial on the 3d of May, 1619, for writing that and another book entitled Speculum Regale; in both of which he had presumed to prophesy, that the king would die in 1621, grounding this prediction on the prophecy of Daniel, where the prophet speaks of time and times, and half a time. He farther affirmed, that Antichrist will be revealed when sin shall be at the highest, and then the end is nigh: that such is our time: sin is now at the highest; ergo, that the land is the abomination of desolation mentioned by Daniel, and the habitation of devils, and the antimark of Christ's church. Williams's defence was, 1. That what he had written was not with any malice or disloyalty of heart towards the king, but purely from affection, and by way mischiefs likely to befall him; having added in his book, when of caution and admonition, that his majesty might avoid the he delivered the threats of judgment and destruction, which God avert, or such words. 2. That the matter rested only in opinion and thought, and contained no overt act; no rebellion, treason, or other mischief following it. 3. That he had enclosed his book in a box sealed up, and secretly conveyed it to the king, without ever publishing it. But the court was unanimously of opinion, that he was guilty of high treason; and that the words contained in the libel, as cited above, imported the end and destruction of the king and his realm; and that antichristianism and false religion were maintained in the said realm; which was a motive to the people to commit treasons, to raise rebellions, &c., and that the writing of the book was a publication. Reports of Henry Rolle, serjeant at law, part II. p. 88. In consequence of this judgment he had a sentence of death passed upon him, which was executed over against Charing-cross two days after. MS. letters of Mr. Thomas Lorkin to Sir Thomas Puckering, Bart., dated at London, June the 24th and 30th, 1613, and March the 16th, 1618-9, and May the 4th and 5th, 1619, among the Harleian MSS. vol. 7002. At his death he adhered to his profession of the Roman Catholic religion, and died with great resolution. He prayed for the king and prince; and said, that he was sorry for having written so saucily and irreverently; but pretended that he had an inward warrant and particular illumination to understand certain hard passages of Daniel and the Revelation, which made him adventure so far. MS. letter of Jolin Chamberlain, Esq. to Sir Dudley Carleton, dated at London, May 8, 1619. This case was urged against the seven bishops at their trial in King James II.'s reign by Sir William Williams, then solicitor-general, who observed, Trial, p. 76, that it had been made use of by Mr. Solicitor-General Finch on the trial of Col. Sidney, and was the great "case relied upon, and that guided and governed that case;" though there is nothing of this, that appears in the printed trial of Sidney. It is but justice to the memory of our great antiquary, Sir Robert Cotton, Bart., to remark here a mistake of Dr. Thomas Smith in his life of Sir Robert, p. 26, prefixed to his catalogue of the Cottonian library, where he has confounded the Cotton mentioned in the beginning of this note, with Sir Robert Cotton, and erroneously supposed, that the suspicion of having written the libel had fallen upon the latter. |