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were mentioned in my last, whereof I thought | The following papers, containing the Lord Chan good presently to advertise his majesty. The cellor Elesmere's exceptions to Sir Edward

days hold without all question, and all delays diverted and quieted.

Sir Edward Coke was at Friday's hearing, but in his night-cap; and complained to me, he was ambulant, and not current. I would be sorry he should fail us in this cause. Therefore I desired his majesty to signify to him by your lordship, taking knowledge of some light indisposition of his, how much he should think his service disadvantaged in this cause, if he should be at any day away; for then he cannot sentence.

By my next I will give his majesty some account of the tobacco and the currants. I ever rest

Your lordship's most obliged friend
and faithful servant,

November 20, at evening, 1619.



Sir Edward Coke is now a foot, and, according to your command, signified by Mr. Secretary Calvert, we proceed in Peacock's examinations. For although there have been very good diligence used, yet certainly we are not at the bottom; and he, that would not use the utmost of his line to sound such a business as this, should not have due regard, neither to your majesty's honour nor safety.

A man would think he were in Luke Hutton's case again; for as my Lady Roos personated Luke Hutton, so, it seemeth, Peacock personateth Atkins. But I make no judgment yet, but will go on with all diligence: and, if it may not be done otherwise, it is fit Peacock be put to torture. He deserveth it as well as Peacham did.

I beseech your majesty not to think I am more bitter, because my name is in it; for, besides that I always make my particular a cipher, when there is question of your majesty's honour and service, I think myself honoured for being brought into so good company. And as, without flattery, I think your majesty the best of kings, and my noble Lord of Buckingham the best of persons favoured; so I hope, without presumption, for my honest and true intentions to state and justice, and my love to my master, I am not the worst of chancellors.

God ever preserve your majesty.
Your majesty's most obliged
and most obedient servant.

February, 10, 1619.

VOL. II.-64

Coke's "Reports," and Sir Edward's answers. having never been printed, though Mr. Stephens. who had copied them from the originals, designed to have given them to the public, they are subjoined here in justice to the memory of that great lawyer and judge; especially as the offence taken at his "Reports" by King James, is mentioned above in the letter of the lord chancellor and Sir Francis Bacon, of October 16, 1616, to that king.

TO THE KING'S MOST EXCELLENT MAJESTY. IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY: According to your majesty's directions signified unto me by Mr. Solicitor, I called the lord chief justice before me on Thursday the 17th of this instant, in the presence of Mr. Attorney and others of your learned counsel. I did let him know your majesty's acceptance of the few animadversions, which, upon review of his own labours, he had sent, though fewer than you expected, and his excuses other than you expected, as, namely, in the prince's case, the want of the original in French, as though, if the original had been "primogenitus" in Latin, then he had not in that committed any error. I told him farther, that because his books were many, and the cases therein, as he saith, 500, your majesty, out of your gracious favour, was pleased, that his memory should be refreshed; and that he should be put in mind of some passages dispersed in his books, which your majesty, being made acquainted with, doth as yet distaste, until you hear his explanation and judgment concerning the same. And that out of many some few should be selected, and that at this time he should not be pressed with more, and these few not to be the special and principal points of the cases, which were judged, but things delivered by discourse, and, as it were, by expatiation, which might have been spared and forborne, without prejudice to the judgment in the principal cases.

Of this sort Mr. Attorney and Mr. Solicitor made choice of five specially, which were read distinctly to the lord chief justice. He heard them with good attention, and took notes thereof in writing, and, lest there might be any mistaking either in the declaring thereof unto him, or in his misconceiving of the same, it was thought good to deliver unto him a true copy. Upon consideration whereof, and upon advised deliberation, he did yesterday in the afternoon return unto me, in the presence of all your learned counsel, a copy of the five points before mentioned, and his answer at large to the same, which I make bold to pre 2 U

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.

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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 adjudgesit 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."

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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.


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 cr 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,

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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.

In the library of the late Thomas, Earl of Leicester, the descendant of Sir Edward Coke, at Holkham in Norfolk, is a copy of the Novum Organum, entitled Instauratio Magna, printed by John Bill in 1620, presented to Sir Edward, who, at the top of the titlepage, has written, Edw. C. ex dono auctoris.

Auctori Consilium.

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,

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

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 Eng- his opinion to Sir Robert Mansell, treasurer of the navy, and lish in 1508, by Alexander Barklay, and printed-vice-admiral, that the commission to the Earl of Nottingham, 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, VIII.” It was dedicated by the translator to Thomas Cornish, Bish-mer reader in 1619. In the preceding year, 1618, he stood for op of Tine, and suffragan Bishop of Wells, and adorned with great variety of wooden cuts.

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 Merchant-taylor's school there, and St. John's college in Oxford, and studied law in the Middle Temple, of which he was sum

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, 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 *He had been committed, in May, 1613, to the Fleet, for bench; in which post he died, June, 1632. He was father of speaking too boldly against the marshal's court, and for giving! Bulstrode Whitelocke, Esq.; commissioner of the great seal.


The offence, wherewith Mr Whitelocke is

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 that there
And in that

part of the king's style, it will go hard with such | exceeding tender and sparing in it;
a lawyer.
is in all our law not three cases of it.
very case of 24 Ed. III. ass. pl. s. which Mr.
Whitelocke vouched, where, as it was a commis-
sion 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.

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.

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

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 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.

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."



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 White-
hall, 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 an-
swer," adds Sir Henry Wotton, "spake more confusedly
than was expected from a lawyer; and the knight more tem-
ended 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 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
under writing."

+ 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

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