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1612 another attempt was made to bend her, with no better success. She was called (Chamberlain writes on the 2nd of July)“ before the Council and Judges on Tuesday at the Lord Chancellor's ; where by the Attorney and Solicitor and by all the Lords and Judges her contempt towards the King and that table was laid open, and much aggravated for her refusing to answer, and scornful words used towards some at her first conventing, and her persisting still in the same course: which example might prove of dangerous consequence. all which she replied nothing but the privilege of her person and nobility, and a rash vow which she could not violate. Whereupon she was sent back to the Tower; and this proceeding is thought to be a preamble, if she do not reclaim herself, to a censure in the Starchamber."
A speech evidently made for this occasion is printed in the Cabala, (p. 369) and though the name of the speaker is not mentioned, I suppose every body will agree with Robert Stephens that Bacon must have been the author. I have not met with any manuscript of it, or any independent copy.
CHARGE AGAINST THE COUNTESS OF SHREWSBURY.
Your Lordships do observe the nature of this charge.
My Lady of Shrewsbury, a lady wise, and that ought to know what duty requireth, is charged to have refused, and to have persisted in refusal, to answer and to be examined in a high cause of state, being examined by the council-table, which is a representative body of the King.
The nature of the cause upon which she was examined is an essential point, which doth aggravate and increase this contempt and presumption; and therefore of necessity with that we must begin.
How graciously and parent-like his Majesty used the Lady Arabella before she gave him cause of indignation, the world knoweth.
My Lady, notwithstanding, extremely ill-advised, transacted the most weighty and binding part and action of her life, which is her marriage, without acquainting his Majesty ; which had been a neglect even to a mean parent. But being to our Sovereign, and she standing so near to his Majesty as she doth, and then choosing such a condition as it pleased her to choose, all parts” laid together, how dangerous it was, my Lady might have 1 C. and T. of James I., i. p.
parties : Cab.
read it in the fortune of that house wherewith she is matched; for it was not unlike the case of Mr. Seymour's grandmother.
The King nevertheless so remembered he was a king, as he forgot not he was a kinsman, and placed her only sub libera custodia.
But now did my Lady accumulate and heap up this offence with a far greater than the former, by seeking to withdraw herself out of the King's power into foreign parts.
That this flight or escape into foreign parts might have been seed of trouble to this state, is a matter whereof the conceit of a vulgar person is not uncapable.
For although my Lady should have put on a mind to continue her loyalty, as nature and duty did bind her; yet when she was in another sphere, she must have moved in the motion of that orb, and not of the planet itself. And God forbid the King's felicity should be so little, as he should not have envy and enviers enough in foreign parts.
It is true, if any foreigner had wrought upon this occasion, I do not doubt but the intent: would have been, as the prophet saith, they have conceived mischief, and brought forth a vain thing. But yet your Lordships know that it is wisdom in princes, and it is a watch they owe to themselves and to their people, to stop the beginnings of evils, and not to despise them. Seneca saith well, Non jam amplius levia sunt pericula, si levia videantur ; dangers cease to be light, because by despising they grow and gather strength.
And accordingly hath been the practice both of the wisest and stoutest princes, to hold for matter pregnant of peril to have any near them in blood to fly into foreign parts. Wherein I will not wander ; but take the example of King Henry the seventh, a prince not unfit to be paralleled with his Majesty; I mean not the particular of Perkin Warbeck, for he was but an idol or a disguise; but the example I mean is that of the Earl of Suffolk, whom that king extorted from Philip of Austria. The story is memorable, that Philip after the death of Isabella, coming to take possession of his kingdom of Castile (which was but matrimonial to his father-in-law Ferdinando of Aragon,) was cast by weather upon the coast of Weymouth, where the Italian story saith king Henry used him in all things else as a prince, but in
capable: Cab. 2 So in Cab. Qu. event ? 3 Tamouth : Cab.
one thing as a prisoner : for he forced upon him a promise to restore the Earl of Suffolk that was fled into Flanders; and yet this I note was in the 21st year of his reign, when the King had a goodly Prince at man's estate, besides his daughters, nay
and the whole line of Clarence nearer in title ; for that Earl of Suffolk was descended of a sister of Edward the fourth : so far off did that King take his aim.
To this action of so deep consequence, it appeareth you (my Lady of Shrewsbury) were privy, not upon foreign suspicions or strained inferences, but upon vehement presumptions, now clear and particular testimony, as hath been opened to you; so as the King had not only reason to examine you upon it, but to have proceeded with you upon it as for a great contempt; which if it be reserved for the present, your Ladyship is to understand it aright, that it is not defect of proof, but abundance of grace that is the cause of this proceeding. And your Ladyship shall do well to see into what danger you have brought yourself. All offences consist of the fact which is open, and the intent which is secret ; this fact of conspiring in the flight of this Lady may bear a harder? and gentler construction; if upon overmuch affection to your kinswoman, gentler; if upon practice or other end, harder; you must take heed how you enter into such actions; whereof if the hidden part be drawn unto that which is open, it may be your overthrow; which I speak not by way of charge, but by way of caution.
For that which you are properly charged with, you must know that all subjects, without distinction of degrees, owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery.
If there be any thing that imports the King's service, they ought themselves undemanded to impart it; much more, if they be called and examined, whether it be of their own fact or of another's, they ought to make direct answer : neither was there ever any subject brought in’ causes of estate to trial judicial, but first he passed examination ; for examination is the entrance of justice in criminal causes; it is one of the eyes of the King's politic body; there are but two, information and examination ; it may not be endured that one of the lights be put out by your example.
I hard : Cab.
2 into : Cab.
Your excuses are not worthy your own judgment; rash vows of lawful things are to be kept, but unlawful vows not; your own divines will tell you so. For your examples, they are some erroneous traditions. My lord of Pembroke spake somewhat that he was unlettered, and it was but when he was examined by one private councillor, to whom he took exception. That of my lord Lumley is a fiction; the preeminences of nobility I would hold with to the last grain; but every day's experience is to the contrary. Nay, you may learn duty of my Lady Arabella herself, a Lady of the blood, of an higher rank than yourself, who declining (and yet that but by request neither) to declare of your fact, yieldeth ingenuously to be examined of her own. I do not doubt but by this time you see both your own error, and the King's grace in proceeding with you in this manner.
This proceeding took place before a "select Council," including the three Chief Justices and the Master of the Rolls; and as we hear of no remonstrance from any of them at the time nor of any popular complaint before or after, I suppose we may infer that the previous imprisonment of the Countess was not beyond the legal powers of the Council, as its powers were then understood. In the present case the Judges took their full share of responsibility, and delivered a distinct opinion upon the three questions of law which it involved; namely
“1. Whether the refusals aforesaid of the said Countess were offences in law against the King his crown and dignity.
“ 2. What manner of proceeding this was, and whether it was justifiable by precedent or reason.
“3. What was the demerit of the offences, and how punishable.”
Upon the first point they gave opinion that “the denying to be examined was a high and great contempt in law against the King, his crown and dignity: and that if it should be permitted, it would be an occasion of many high and dangerous designs against the King and the realm, which cannot be discovered ; and upon hope of impunity it will be an encouragement to offenders, as Fleming Justice said, to enterprise dangerous attempts."
Upon the second, viz. concerning the manner of this proceeding, tliey observed
“1. Privativè, it is not to fine and imprison, or to inflict corporal punishment upon the Countess; for fine and imprisonment ought to be assessed in some Court judicially.
“ 2. Positivè, the fine' is ad monendum, or at the most ad minandum : it is ad instruendum non ad destruendum.
** This selected Council is to express what punishment this offence justly deserved, if it be judicially proceeded with in the Star-chamber; for which reason this manner of proceeding is out of the mercy and grace of the King against this honourable Lady, that she seeing her offence may submit herself to the King without any punishment in any
“If sentence shall be given in the Star-chamber according to justice, you the Lords shall be agents in it: but in this manner, according to the mercy of the King, the King is only agent: the law hath put rules and limits to the justice of the King, but not unto his mercy ; that is transcendant, and without any limits of the law : et ideo processus iste est regalis plane et rege dignus."
As to the last point,
“It was resolved by all quasi una voce that if a sentence should be given in the Star-chamber judicially, she should be fived 20,0001. and imprisoned during the King's pleasure.”?
This comes from the posthumous portion of Coke's reports, not prepared for publication by himself; and from some short comments and queries in the margin of the paragraph in which he states the substance of the charge, I gather that at some later time he would perhaps have been disposed to question the soundness of this judgment. But there can be no doubt that it was the judgment which at that time he believed to be sound, and concurred in without any reservation.
Sound or unsound, it must have been conclusive to the Countess of what she had to expect from a judicial proceeding in the Starchamber. Yet the threat had no effect upon her; nor was it thought desirable to carry it into execution at that time. Six years after, she had to appear before that Court to answer a charge of the same kind connected with the same case; but for the present she was merely sent back to her lodging in the Tower; where she remained in occupation of the best apartments for a long time.
For the poor Lady' Arabella there was no help and no hope; and though I cannot but think that she had acted indiscreetly and helped
So printed, but I should think by mistake. “It” is apparently the word wanted, viz. the proceeding. They have explained privativè what “it” is not : they are now going to explain positivè what "it" is. If Coke meant to write “fine," he must have meant a play upon the word and used it in the sense of “end :" for in the present case no fine in the ordinary sense was in question.
2 Coke's Reports, part xii. p. 96.