« AnteriorContinuar »
the petition of certain baronets (6) made unto your majesty for confirmation and extent or explanation of certain points mentioned in their charter; and am of opinion, that first, whereas it is desired, that the baronets be declared a middle degree between baron and knight, I hold this to be reasonable as to their placing.
Secondly, where it is desired, that unto the words degree or dignity of baron, the word honour might be added; I know very well, that in the preface of the baronet's patent it is mentioned, that all honours are derived from the king. I find also, that in the patent of the baronets, which are marshalled under the barons, except it be certain principals, the word honour is granted. I find also, that the word dignity is many times in law a superior word to the word honour, as being applied to the king himself, all capital indictments concluding contra coronam et dignitatem nostram. It is evident also, that the word honour and honourable are used in these times in common speech very promiscuously. Nevertheless, because the stile of honour belongs chiefly to peers and counsellors, I am doubtful what opinion to give therein.
Thirdly, whereas it is believed, that if there be any question of precedence touching baronets, it may be ordered that the same be decided by the commissioners marshal, I do not see but it may be granted them for avoiding disturbances.
Fourthly, for the precedence of baronets, I find no alteration or difficulty, except it be in this, that the daughters of baronets are desired to be declared to have precedence before the wives of knights eldest sons; which, because it is a degree hereditary, and that in all examples, the daughters in general have place next the eldest brothers wives, I hold convenient.
(b) The order of baronets was created by patent of king James I. dated the 22d of May, 1611. The year following, a decree was made relating to their place and precedence, and four years after, namely, in 1616, another decree to the same purpose. See Sélden's Titles of Honour, Part II. Ch. V. p. 821. Ch. XI. p. 906, and 910. 2d Edit. fol. 1631.
Lastly, whereas it is desired, that the apparent heirs males of the bodies of the baronets may be knighted during the life of their fathers; for that I have received from the lord Chamberlain a signification, that your majesty did so understand it, I humbly subscribe thereunto, with this, that the baronets eldest sons being knights do not take place of ancient knights, so long as their fathers live.
All which nevertheless I humbly submit to your majesty's better judgment.
Your Majesty's most humble
and most bounden servant,
THE CHARGE AGAINST MR. WHITELOCKE (a).
THE offence, wherewith Mr. Whitelocke is charged,
(a) 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. Whitelocke was probably the same with James Whitelocke, who was born in London, 28 November, 1572, educated at Merchant-taylors' 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 VOL. VI.
a presumptuous and licentious censure and defying of his majesty's prerogative in general; the other a slander and traducemeut 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, 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 Hebrews commonwealth was therefore held in the gate, to shew 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 stile the king Defender of the Faith, because he receives not the discipline and presbytery; and the lawyer will tell him, it is no part of the king's stile, it will go hard with such a lawyer.
Or if a tribunitious popular spirit will go and ask a
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.
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.
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 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 regis non debent aut possunt justitiarii aut private 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. 3. 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 my opinion, which is nothing, &c. But illotis manibus, he takes it into his hands, and pronounceth of it, as a man would scarcely do of a warrant of a justice of peace, and speaks like a dictator, that this is law, and this is against law, &c. (b)
(b) 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