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

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.

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

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.

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 CHARGE AGAINST MR. WHITELOCK.* MY LORDS,

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."

ROBERT EARL OF SOMERSET TO SIR THOMAS
OVERBURY.† FROM A COPY AMONG LORD
BACON'S PAPERS IN THE LAMBETH LI-
BRARY.

SIR,

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