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respective documents. But since the question must have turned upon the limits of the power of the Crown, and a lawyer would naturally push his argument at least as far as it would justly go, we may assume that the exceptions clipped the Prerogative rather close. They did in fact touch the quick. The paper came into the King's hands we do not know when or how but very likely from Mansel or Nottingham themselves, who if they got into an argument upon the question with the commissioners or with the King, would soon have to fall back upon their paper for support. At any rate the King had it; and then arose the question who was the author-for it was not signed. While this matter was pending (which was some time in the spring of 1613) James Whitelocke (the man who had begun the war in Parliament against Impositions) had occasion, in pleading for a client in the Court of Chancery, to dispute the validity of another commission,-the commission for the office of Earl Marshall. His argument gave great offence to the Earls of Northampton and Suffolk, who were the principal commissioners, and also to the Lord Chancellor, who professed that such matters were too high for him to judge of and must be referred to the King. To the King the question was accordingly referred, as one which threatened his prerogative, and the lawyer who had raised the objection was named as very likely to have been the author of the exceptions to the Commission of the Navy. The same afternoon (18 May 1613) Whitelocke was called before the Council and committed to the Fleet. For what cause he was committed the warrant did not state. But I suppose it was as the suspected (perhaps the avowed) author of that paper of exceptions, for procuring which Sir Robert Mansel had been committed already, and of which Whitelocke, being questioned at the Council-board, may very likely have acknowledged himself the writer. At any rate, we hear no more of the motion in Chancery: but on the 12th of June they were both convented before the Council and formally charged with slandering the King's Commission for reforming the abuses of the Navy, and with censuring his prerogative. The object of the proceeding being only to mark the act by a formal sentence and record as a punishable offence, the substance of it was presently embodied in an Act of Council; which I have no doubt (judging by the style) was drawn up by Bacon, and may be accepted as the official report. It has been printed in the appendix to Whitelocke's Liber Famelicus (edited by Mr. Bruce for the Camden Society
"Other passages that then happened in the Council chamber are set down in a larger discourse of it." Whitelocke appears to have written a full account of the whole business in a separate book: which I presume is lost. See Liber Famelicus, pp. 38, 39.
in 1858), but is here taken from a manuscript in the British Museum which appears to have belonged to Sir Simonds D'Ewes, and to be more correct (except in the title)' than the copy in the State Paper Office used by Mr. Bruce.
AT WHITEHALL, IN THE QUEEN'S CHAMBER OF PRESENCE, on SATURDAY THE 12TH OF JUNE 1613.2
This day Sir Robert Mansell Knt. and James Whitlocke Esq. Counsellor at Law, formerly committed for their contempts, were convented before the Lords and others of his Maty's Privy Council, assisted with the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, at the Whitehall, and there were by his Maty's learned Counsel severally charged; the substance of which charge and the sentence and order thereupon given were as followeth.
First the said James Whitlocke was charged, that whereas his M. being credibly informed of divers great frauds, deceits, and other abuses which had been committed concerning the service of his Maty's navy, through the negligence or corruption of inferior officers and other employed in that service, thought fit in his princely wisdom and providence to grant, and accordingly had granted, forth a commission under the great seal of England, unto the Lo. Chancellor of England, the Lo. Privy Seal, the Lo. Admiral, the Lo. Chamberlain, and divers other great Counsellors, and other persons of eminent quality, to enquire examine and find out the same deceits and abuses, and upon the discovery of them as well to give order for the due punishment of the offenders for the time past, as likewise to devise and set down fit ordinances and rules for the well governing and ordering of the navy and all the incidents thereof for the time to come, with reasonable pains to be inflicted upon the offenders, provided that all should be agreeable to law; the said James Whitlocke
It is entitled "An Act of Council, recorded in the Council-table books, upon the proceedings of the Lords of the Council against Mr. James Whitlocke, counsellor at law, and Sir Robert Mansell, for that they had unjustly traduced and slandered the King's Commission for reforming the abuses of the Navy, and also censuring his M's power and prerogative. At the Whitehall the of A® 1609.”
This title, in which the month date is left blank and the year date is wrong, was no doubt the composition of the transcriber or collector, who was making out the description from the contents. I have therefore substituted the title of the copy in the State Paper office.
2 Addl. MSS. Brit. Mus. 4149, f. 173.
emboldened by that which ought rather to have refrained him (which was his science and profession in the Law) had committed two several great contempts concerning the same commission; the one in that he had unjustly traduced and slandered the said Commission to be of another nature than indeed it was; the other (which was yet greater) in that by occasion thereof he presumed in a very strange and unfit manner to make an excursion into a general censure and defining [of] his Maty's power and prerogative: concerning both which, it was particularly opened by his Maty's said Counsel that Sir Robert Mansell, Treasurer of the Navy, seeking to cross the said Commission, about the end of Hilary Term last past, repaired to the said Whitlocke, and earnestly moved him in the name of the Lord High Admiral of England (as by the said Whitlocke was avouched) to set down what exceptions he could possibly devise, and as fully as he could, to the form and substance of that Commission; whereupon the said Whitlocke with an extraordinary haste and apprehension, set down in writing divers untrue and scandalous matters, under the title of exceptions to the said Commission.
For first in the said paper he termed the Commission in very contemptuous manner, irregular, without precedent, strange, of a new mould, and such as he hoped should never have place in this Commonwealth; and termed also the Commissioners therein Inquisitors, to make it seem the more odious; and in all the course of his writing never used so much as a modest phrase of tenderness or loathness to deal in so high a cause, or of referring or submitting himself to better judgment, or of making the cause difficult or doubtful; but took upon him to pronounce the Commission to be void and against law, and to give an absolute censure in derogation of it; whereas it might have become him either to have declined to deal in a cause of that greatness, or at least to have handled it in reverent and respective manner, being an act of State proceeding from his Maty.
Secondly, he did tax the Commission that by the tenor thereof the punishment of offences was left to the discretion of the Commissioners; which is but a calumniation: for that it appears by the words of the same Commission that the scope thereof was but ad inquirendum, and that the order to be given was to be intended of a direction to refer the offence to the course of justice as appertaineth, and not to an immediate or judicial hearing and determination of them.
Thirdly, the said Whitlocke did devise, in scandal of the said Commission, to compare and match it with the Commission mentioned in the year books in the 42 year of K. Edw. the 3a and there by the Court most justly condemned, by which Commission certain persons were commanded forthwith to arrest a subject's body and goods, and to cast him into Gloster Gaol, without sentence or judgment before given, or cause expressed; whereas the present Commission was so far different in nature from the other, as it mought in some sort be said to be contrary; the one being to proceed to execution without a judgment precedent, and the other being but a preparation to a proceeding subsequent.
And for the second contempt, it was opened by his Matys said Counsel that the said Whitlocke had affirmed and maintained by the said writing that the King cannot, neither by commission nor in his own person, meddle with the body, goods, or lands of his subjects, but only by indictment, arraignment, and trial, or by legal proceedings in his ordinary Courts of Justice, laying for his ground the statute of Magna Charta, Nullus liber homo capiatur, etc. which position in that general and indefinite manner was set forth by his Maty's said Counsel to be not only grossly erroneous and contrary to the rules of law, but dangerous and tending to the dissolving of Government.
First, for that Lex Terræ mentioned in the said Statute, is not to be understood only of the proceedings in the ordinary Courts of Justice, but that his Maty's Prerogative and his absolute power incident to his sovereignty is also lex terræ, and is invested and exercised by the law of the land, and is part thereof; and it was thereupon observed and urged that the opinion broached by the said Whitlocke did manifestly (by consequence) overthrow the King's martial power and the authority of the Council Table, and the force of his Maty's proclamations, and other actions and directions of State and Policy applied to the necessity of times [and] occasions which fall not many times within the remedies of ordinary justice, nor cannot be tied to the formalities of a legal proceeding, propter tarda legum auxilia; neither could he the said Whitlocke be so blind (except he would wilfully mistake) but that he must needs discern that this present Commission was mixed with matter of State and martial defence, tending to the conservation of the Navy which is the walls of this island, and a
principal portion of the surety, greatness, and renown of king and kingdom, and therefore not like unto a Commission of oyer and determiner, or other such ordinary Commissions.
Secondly it was observed by his Maty's Counsel that in this case there was another point of difference; which was that the ships and vessels with all their furniture and the materials thereof are the King's own, and the persons whom the Commission did concern were his officers and servants or in his pay and wages; so that his Maty. in this case hath a power of examination and correction, not only regal, but (as it may be termed) dominical, as a master and owner.
Thirdly, it was enforced by his Maty's said Counsel, that if the Statute of Magna Charta in the point of nullus liber homo capiatur, etc. should receive the construction that the said Whitlocke giveth unto it, it doth manifestly impeach all imprisonment either for causes of State or common justice before trial, whereas the general practice of the realm is and hath ever been that not only the Council of the estate, but Justice of Assizes and Justice of Peace do commit offenders capital upon pregnant presumptions, before either trial or indictment; and common reason teacheth that if the persons of malefactors were not secured by safe custody before indictment, there would be nothing but escapes and general impunity; and therefore that assertion of the said Whitlockes every way pernicious; whereupon the K's learned Counsel concluded upon both parts that as well for the slander of his Matys Commission as for the clipping and impeaching of his Maty's prerogative and power, the said Whitlocke's contempts were very great and deserved sharp punishment; neither were anyways to be defended by the privilege of a Counsellor at Law, which was not infinite but to be contained within due bounds, and was to be managed without presumption and with due respect to the higher powers for which purpose his Matys said Counsel produced divers precedents of severe proceeding against Lawyers for their contempts in giving crafty or turbulent counsel and opinion to their clients, which nevertheless they said were of an inferior nature to the present offence.
After the charge of the said Whitlocke, there followed the charge likewise of Sir Robert Mansell, which was to this effect; that his fault was not any whit inferior unto the other, for that he had sought undutifully to oppose himself against his Maty's