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proceedings and to call his prerogative in question; wh fault was aggravated
First in that Mr Whitlocke had not undertaken this work but at his importunity and upon confidence of the countenance and assistance of the Lord Admiral which he pretended.
Secondly, for that he was the means to divulge those dangerous positions tending so much to the diminution of his Matys royal power.
And thirdly, in that he, being a principal officer in the Navy, (whose duty did oblige him to advance the same by his best endeavours) had nevertheless used means to hinder so necessary a service as was intended by the same Commission.
Upon which several charges the said Sir Robert Mansell and James Whitlocke, perceiving the nature and weight of their offences, did in all humility acknowledge their errors, and flying from his Maty's justice to his grace and clemency, humbly besought their Lordships to be intercessors unto his M. on their behalf, that his lighness would be graciously pleased to accept of this their submission and penitency, and to remit any further penalty for the said offences than the imprisonment they had already endured, and to restore them again to his favour and gracious opinion, which they would endeavour to deserve by all possible service.
Upon all which matter, and answers fully and deliberately heard and considered, their Lordships, together with the Judges their assistants, did severally (beginning with the highest) declare their judgments, how much they did condemn the doings of the said Sir Robert Mansell and Mr. Whitlocke, and how grievous and dangerous they conceived their offences to be, opening gravely and effectually the quality of them. Yet nevertheless they favourably inclined unto the suit of the said Sr Robert Mansell and Mr Whitlocke, to commend their cause unto his his Maty's grace and clemency, and promised their best assistance and furtherance for obtaining the same, and in the mean time they required them to make severally the like submission in writing subscribed with their hands, as they had done by word, and remanded them unto their several prisons until his Maty's pleasure were further known.
The next day, being Sunday the 13th of this month, and the aforesaid submissions being written and subscribed as was enjoined, and presented unto his Maty's hands on their behalf, it pleased his Maty. out of his singular clemeney and goodness, upon the report which had been made by the Lords unto him of the former day's proceedings, to accept of the acknowledgement of their faults and errors and to receive them again into his favour; wherefore order was given to send for them, and thus much being signified unto them both, by the Lords at the Council Table, (after certain grave admonitions for their behaviour hereafter towards his Maty and the causes of his prerogative and estate) direction was given for their present enlargement.
We have here a summary report of the substance of this proceeding, in which Bacon (if it was he who drew it up) would of course collect the scattered points of the argument and reduce them to the compactest shape and the best order that he could devise, without binding himself to the order in which they were actually presented. Of the part which he himself took in it we learn something from a paper of notes in Sir Julius Cæsar's handwriting, who was present and appears to have set them down as the case was going on. From these it appears that the charge against Whitelocke was opened by the Attorney General and concluded by Bacon, while that against Mansell was left to the Recorder. But the notes are not full enough to explain the speeches to one who had not heard them, and are chiefly valuable as showing that a rough draft in Bacon's handwriting of a “charge of Whitelocke," which is preserved among the papers at Lambeth, represents substantially the speech which he delivered on this occasion. It is probably a note of what he intended to say, and I take it that the latter part has been lost. But it is no doubt a genuine composition of his own, and it seems to bave been looked over and corrected, as if to prepare it for the transcriber.
THE CHARGE OF WHITELOCKE.?
The offence wherewith Mr. Whitelocke is charged (for as to Sir Robert Mansell, I take it to my part only to be sorry for his error) is a contempt of an high nature, and resting upon two parts : 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 com
1 Lansd. MSS. 160, fo. 83.
2 Gib. Pap., viii. fo. 249. VOL. IV.
mission 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 his true colours, so on the other side I desire that the shadow of it may not darken or involve anything 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 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 part of the king's style, it will go hard with such a lawyer.
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 as the privilege of giving counsel protects not all opinions : and as some opinions given are traitorous, so are there other 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 in 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 cartis 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 42 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 peremptorily 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 with, or this is my opinion, which is nothing, etc. But bluntly, 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, etc.
This is all that remains : but I do not think it is the whole. The last words come down to the end of the sheet, and a line which had been drawn across the page is crossed out. I suspect that the draught was continued on another sheet, which has been lost. Of the three degrees of the offence which he promises to treat of, he has not yet done with the first. Sir Julius Cæsar's notes give some indication of what followed, but do little to supply it. They conclude thus.
"To measure the power and dimensions of the Crown, weh Whitelocke hath done, a great presumption. —The King's regal authority bath 4 streams.
of Law. To speak of these things in general is inconsiderate rashness and incapacity.
Thus far M' Solicitor."
The loss of the separate book in which Whitelocke had set down a full account of this business, is to be regretted : for that part of the story which he trusted to the Liber famelicus leaves us without any means of judging whether or not he had transgressed the just limits of free speech as they were understood in those times. Even in these days there are words which are actionable--not at all the less because the speaker believes them to be true. And it is possible to conceive a state of opinion in which damage to the authority of government was held to be as grave an offence as damage