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.

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 cleared. To all the judges of England, and barons of the exchequer.

Instaurare paras veterum documenta sophorum:
Instaurare Leges Justitiamq; prius.

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,

The offence, wherewith Mr Whitelocke is He had been committed, in May, 1613, to the Fleet, for speaking too boldly against the marshal's court, and for giving

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.

sel (I put a case not altogether feigned) whether If a jesuited papist should come, and ask counall 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 committed by the officers of the navy, was not according to 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 Mer

chant-taylor's school there, and St. John's college in Oxford, and 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

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, 1620, knighted, made chief justice of Chester; and at last, on 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; sc 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 too great a matter for him to deal in; or this is my opinion, which is nothing, etc. But "illotis manibus," he takes it into his hands, and pro

warrant of a justice of peace, and speaks like a dictator, that "this is law," and "this is against law," etc.*

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 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 of the king and his courts, that if the case be tender, and a wise lawyer in modesty and discretion 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
OVERBURY.+ FROM A COPY AMONG LORD
BACON'S PAPERS IN THE LAMBETH LI-
BRARY.

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 questioner, 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 temperately than was expected from a soldier . . . . Whitelocke ended his speech with an absolute confession of his own 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 humilia tion 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 private 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

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 The case of this gentleman will render the detail of it God avert, or such words. 2. That the matter rested only in necessary for the illustration of this letter; and the circum- opinion and thought, and contained no overt act; no rebellion, stances of it, not known in our history, may be thought to de- treason, or other mischief following it. 3. That he had enserve the reader's attention. He was a native of the West closed his book in a box sealed up, and secretly conveyed it to of England, and a recusant, against whom a proclamation was the king, without ever publishing it. But the court was issued in June, 1613, charging him with high treason against unanimously of opinion, that he was guilty of high treason; the king and state, for having published a very scandalous and and that the words contained in the libel, as cited above, imrailing book against his majesty, under the title of Balaam's ported the end and destruction of the king and his realm; and Ass, which was dropped in the gallery at Whitehall. Just at that antichristianism and false religion were maintained in the time of publishing this proclamation, he happened to cross the said realm; which was a motive to the people to comthe Thames, and inquiring of the watermen what news? mit treasons, to raise rebellions, &c., and that the writing of they, not knowing him, told him of the proclamation. At the book was a publication. Reports of Henry Rolle, serjeant landing, he muffled himself up in his cloak, to avoid being at law, part II. p. 88. In consequence of this judgment he had known; but had not gone many paces, when one Mr. Maine, a sentence of death passed upon him, which was executed a friend of his, meeting and discovering him, warned him of over against Charing-cross two days after. MS. letters of his danger; and being asked what he would advise him to do, Mr. Thomas Lorkin to Sir Thomas Puckering, Bart., dated at recommended it to him to surrender himself; which he did to London, June the 24th and 30th, 1613, and March the 16th, the Earl of Southampton. He denied himself to be the author 1618-9, and May the 4th and 5th, 1619, among the Harleian of the libel: but his study being searched, among his papers MSS. vol. 7002. At his death he adhered to his profession of were found many parts of the book, together with relics of the Roman Catholic religion, and died with great resolution. those persons who had been executed for the gunpowder He prayed for the king and prince; and said, that he was sorry treason, as one of Sir Everard Digby's fingers, a toe of Thomas for having written so saucily and irreverently; but pretended Percy, some other part of Catesby or Rookewood, and a piece that he had an inward warrant and particular illumination to of one of Peter Lambert's ribs. He was kept prisoner in the understand certain hard passages of Daniel and the RevelaTower till March, 1618, when the true author of the libel was tion, which made him adventure so far. MS. letter of John discovered to be John Williams, Esq., a barrister of the Mid-Chamberlain, Esq. to Sir Dudley Carleton, dated at London, dle 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," sand 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

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 Cot ton, and erroneously supposed, that the suspicion of having written the libel had fallen upon the latter.

them. But, nevertheless, the proofs seem to us
to amount to this, that it was possible he should
be the man; and that it was probable, likewise,
he was the man: but no convicting proofs, that
may satisfy a jury of life and death, or that may
make us take it upon our conscience, or to think
it agreeable to your majesty's honour, which next
our conscience to God, is the dearest thing to us
on earth, to bring it upon the stage: which, not-
withstanding, we, in all humbleness, submit to
your majesty's better judgment. For his liberty,
and the manner of his delivery, he having so many
notes of a dangerous man, we leave it to your
princely wisdom. And so, commending your
majesty to God's precious custody, we rest
Your majesty's most humble and bounden
FR. BACON,

servants,

H. MONTAGU,
H. YELVERTON.

MR. Murray,

TO MR. MURRAY.

My lord chancellor, yesterday in my presence, had before him the judges of the common pleas, and hath performed his majesty's royal command in a very worthy fashion, such as was fit for our master's greatness; and because the king may know it, I send you the enclosed. This seemeth to have wrought the effect desired; for presently I sent for Sir Richard Cox,* and willed him to present himself to my Lord Hobart, and signify his readiness to attend. He came back to me, and told me, all things went on. I know not what afterwards may be; but I think this long chase is at an end. I ever rest Yours assured,

January 25, 1614.

FR. BACON.

22 Jan. 1613.

TO JOHN MURRAY* OF THE BED-CHAMBER TO
THE KING.t

MR. MURRAY,

I keep the same measure in a proportion with my master and with my friend; which is, that I will never deceive them in any thing, which is in my power; and when my power faileth my will, I am sorry.

Monday is the day appointed for performing his majesty's commandment. Till then I cannot tell what to advise you farther, except it should be this, that in case the judges should refuse to take order in it themselves, then you must think of some warrant to Mr. Secretary, who is your friend, and constant in the businesses, that he see forthwith his majesty's commandment executed, touching the double lock; and, if need be, repair to the place, and see by view the manner of keeping the seal; and take order, that there be no stay for working of the seal of justice, nor no prejudice to Killegrew's farm, nor to the duty of money paid to the chief justice. Whether this may require your presence, as you write, that yourself can best judge. But of this more, when we have received the judges' answer. It is my duty, as much as in me is, to procure my master to be obeyed. I ever rest

Your friend and assured,

January 21, 1614.

FR. BACON.

* He was one of the masters of the green cloth, and had had a quarrel at court during the Christmas holy-days of the year 1614, with Sir Thomas Erskine ; which quarrel was made up by the lords of the marshal's court, Sir Richard being obliged to put up with very foul words. MS. letter of Mr. Chamberlain to Sir Dudley Carleton, January 12, 1614-5.

+ Edmund Peacham, a minister in Somersetshire. [MS. letter of Mr. Chamberlain, dated January 5, 1614-5.] I find one of both his names, who was instituted into the vicarage of Ridge, in Hertfordshire, July 22, 1581, and resigned it in 1587. [Newcourt, Reporter, vol. i. p. 864.] Mr. Peacham was committed to the Tower for inserting several treasonable passages in a sermon never preached, nor, as Mr. Justice Coke remarks in his Reports during the reign of King Charles I., p. 125, ever intended to be preached. Mr. Chamberlain, in a letter of the 9th

I pray deliver the enclosed letter to his majesty. of February, 1614-5, to Sir Dudley Carleton, mentions Mr.

To his very good friend Mr. John Murray, of his majesty's bed-chamber.

Peacham's having been "stretched already, though he be an old man, and, they say, much above threescore: but they could wring nothing out of him more than they had at first in his papers. Yet the king is extremely incensed against him, He was created Viscount of Annan in Scotland in August and will have him prosecuted to the utmost." In another 1622. Negotiations of Sir Thomas Roe, in his embassy to the letter, dated February 23, we are informed, that the king, Ottoman Porte, p. 93. In April, 1624, the Lord Annan was since his coming to London on the 15th, had had "the opinion created Earl of Annandale in Scotland. Ibid. p. 256. of the judges severally in Peacham's case; and it is said, that This and the following letters, are printed from Harl. most of them concur to find it treason: yet my Lord Chief MSS. vol. 6988

Justice [Coke] is for the contrary; and if the Lord Hobart, that