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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. In the library of the late Thomas earl of Leicester, the descendent of Sir Edward Coke, at Holkham in Norfolk, is a copy of the Novum Organum, intitled Instauratio Magna, printed by John Bill in 1620, presented to Sir Edward, who at the top of the title page has written Edw. C. ex dono auctoris.
Instaurare Leges Justitiamq; prius.
“ 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 M,ccccc,vini.” 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. WHITELOCKE *.
MY LORDS, The offence, wherewith Mr. Whitelocke is charged, for as to Sir Robert Mansell, I take it to my part
He had been committed, in May 1613, to the Fleet, for speaking too boldly against the marshal's court, and for giving 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. While was probably 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 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, king's high commissions of regiment, or mixed with causes of state.
the same with James Whitelocke, who was born in London 28 November, 1572, educated at Merchant-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 elected 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, 1618.] 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.
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.
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.”
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. 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 shew it to the king's council.
But Mr. Whitelocke did not advise his client to acquaint the king's council with it, but presumptuously giveth opinion, that it is void. Nay, not so much as a clause or passage of modesty, as that he submits his opinion to censure : that it is too great a matter for him to deal in; or this is
reckon Mr. Whitelocke's; for as for his loyalty and true heart to the king, God forbid I should doubt it.
Therefore let no man mistake so far, as to conceive, that any lawful and due liberty of the subject for asking counsel in law is called in question when points of disloyalty 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 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