troubling you with so long a letter, specially being | THE KING TO THE LORD KEEPER, IN ANSWER accompanied with other papers, I ever rest Your majesty's most humble and bounden servant, This 21st of November, at ten at night, [1616.] FR. BACON. SIR EDWARD COKE TO THE KING. MOST GRACIOUS SOVEREIGN, I think it now my duty to inform your majesty of the motives that induced the lord chancellor and judges to resolve, that a murder or felony, committed by one Englishman upon another in a foreign kingdom, shall be punished before the constable and marshal here in England. TO HIS LORDSHIP'S LETTER FROM GORHAM- JAMES R. Right trusty and well beloved counsellor, we greet you well. Although our approach doth now begin to be near London, and that there doth not appear any great necessity of answering your last letter, since we are so shortly to be at home; yet we have thought good to make some observations to you upon the same, that you may not err, by mistaking our meaning. The first observation we are to make is, that, whereas you would invert the second sense, wherein we took your "magnum in parvo,” in accounting it to be made "magnum" by their streperous carriage, that were for the match, we cannot but show you your mistaking therein. For every First, in the book-case, in the 13th year of King wrong must be judged by the first violent and Henry the Fourth, in whose reign the statute was wrongous ground, whereupon it proceeds. And made, it is expressly said, one liegeman was was not the thefteous stealing away of the daughkilled in Scotland by another liegeman; and the ter from her own father* the first ground wherewife of him that was killed, did sue an appeal upon all this great noise hath since proceeded? of murder in the constable's court of England. For the ground of her getting again came upon a "Vide Statutum," saith the book, "de primo lawful and ordinary warrant, subscribed by one Henrici IV. cap. 14. Et contemporanea exposito of our council,† for redress of the former violence : est fortissima in Lege." Stanford, an author without exception, saith thus, fol. 65, a.: "By the statute of Henry IV. cap. 14. if any subject kill another subject in a foreign kingdom, the wife of him, that is slain, may have an appeal in England before the constable and marshal; which is a case in terminis terminantibus.' And when the wife, if the party slain have any, shall have an appeal, there, if he hath no wife, his next heir shall have it." * and except the father of a child might be proved to be either lunatic, or idiot, we never read in any law, that either it could be lawful for any creature to steal his child from him; or that it was a matter of noise and streperous carriage for him to hunt for the recovery of his child again. Our next observation is, that whereas you protest your affection to Buckingham, and thereafter confess, that it is in some sort "parent-like;” yet, after that you have praised his natural parts, we If any fact be committed out of the kingdom, Lady Hatton had first removed her daughter to Sir Edupon the high sea, the lord admiral shall determine mund Whithipole's house, near Oatlands, without the knowit. If in a foreign kingdom, the cognisance be-ledge of Sir Edward Coke; and from thence, according to a longeth to the constable, where the jurisdiction letter of Mr. Chamberlain, dated July 19, 1617, the young lady pertains to him. And these authorities being seen by Bromley, chancellor, and the two chief justices, they clearly resolved the case, as before I have certified your majesty. I humbly desire I may be so happy, as to kiss your majesty's hands, and to my exceeding comfort to see your sacred person; and I shall ever rest Your majesty's faithful and loyal subject, EDW. COKE. February 25, 1616-7. To the king's most excellent majesty. Sir William, the most ancient writer on the pleas of the crown. He was borne in Middlesex, August 22, 1509, educated in the University of Oxford, studied the law at Gray's Inn, in which he was elected autumn reader in 1545, made serjeant in 1552, the year following queen's serjeant, and, in 1554, one of the justices of the common pleas. He died August 28, 1558. was privately conveyed to a house of the Lord of Argyle's by Hampton-Court. "Whence," adds Mr. Chamberlain, fetched her: but indeed went farther than his warrant, and "her father, with a warrant from Mr. Secretary [Winwood] brake open divers doors before he got her." + Secretary Winwood, who, as Mr. Chamberlain observes in the letter cited in the note above, was treated with ill language at the council-board by the lord keeper, and threat ened with a "pramunire," on account of his warrant granted to Sir Edward Coke. His lordship, at the same time, told they wished well to her and her sons, and would be ready to the Lady Compton, mother of the Earl of Buckingham, that serve the earl with all true affection; whereas others did it out of "faction" and "ambition." Which words glancing directly at Secretary Winwood, he alleged, that what he had done was by the direction of the queen and the other parties, and showed a letter of approbation of all his courses from the king, making the whole table judge what "faction or "ambition" appeared in his carriage: to which no answer was returned. The queen, some time after, taking notice of the disgust which the lord keeper had conceived against Secretary Winwood, and asking his lordship, what occasion the secretary had given him to oppose himself so violently against him, his lordship answered, “Madam, I can say no more but he is proud, and I am proud." MS. letter of Mr Chamberlain, October 11, 1617. will not say, that you throw all down by a direct | wrong beyond his patience; and the first breach imputation upon him; but we are sure you do not of that quietness, which hath ever been kept since deny to have had a greater jealousy of his discretion, the beginning of our journey, was made by them than, so far as we conceive, he ever deserved at that committed the theft. And for your laying your or any man's hands. For you say, that you the burden of your opposition upon the council, were afraid, that the height of his fortune might we meddle not with that question; but the oppomake him too secure; and so, as a looker-on, you sition, which we justly find fault with you, was might sometime see more than a gamester. Now, the refusal to sign a warrant for the father to the we know not how to interpret this in plain Eng- recovery of his child, clad with those circumlish otherwise, than that you were afraid, that the stances, as is reported, of your slight carriage to height of his fortune might make him misknow Buckingham's mother, when she repaired to you himself. And, surely, if that be your "parent- upon so reasonable an errand. What farther oplike affection" toward him, he hath no obligation position you made in that business, we leave it to to you for it. And, for our part, besides our own the due trial in the own time. But whereas you proof, that we find him farthest from that vice of would distinguish of times, pretending ignorance any courtier, that ever we had so near about us; either of our meaning or his, when you made your so do we fear, that you shall prove the only phenix opposition; that would have served for a reasonin that jealousy of all the kingdom. For we would able excuse not to have furthered such a business, be very sorry, that the world should apprehend till you had been first employed in it: but that that conceit of him. But we cannot conceal, that can serve for no excuse of crossing any thing, that we think it was least your part of any to enter into so nearly concerned one, whom you profess such that jealousy of him of whom we have heard you oft friendship unto. We will not speak of obligation; speak in a contrary style. And as for that error for surely we think, even in good manners, you of yours, which he lately palliated, whereof you had reason not to have crossed any thing, wherein seem to pretend ignorance; the time is so short you had heard his name used, till you had heard since you commended to him one* to be of the from him. For if you had willingly given your barons of our exchequer in Ireland, as we cannot consent and hand to the recovery of the young think you to be so short of memory, as to have gentlewoman; and then written both to us and forgotten how far you undertook in that business, to him what inconvenience appeared to you to be before acquainting us with it; what a long jour- in such a match; that had been the part indeed ney you made the poor man undertake, together of a true servant to us, and a true friend to him. with the slight recommendation you sent of him; But first to make an opposition; and then to give which drave us to those straits, that both the poor advice by way of friendship, is to make the plough. man had been undone, and your credit a little go before the horse. blasted, if Buckingham had not, by his importunity, made us both grant you more than suit, for you had already acted a part of it, and likewise run a hazard of the hindrance of your own service, by preferring a person to so important a place, whom you so slightly recommended. you Our third observation is upon the point of your opposition to this business, wherein you either do, or at least would seem to, mistake us a little. For, first, whereas you excuse yourself of the oppositions you made against Sir Edward Coke at the council-table, both for that, and other causes; we never took upon us such a patrociny of Sir Edward Coke, as if he were a man not to be meddled withal in any case. For whatsoever did against him, by our employment and commendation, we ever allowed it, and still do, for good service on your part. "De bonis operibus non lapidamus vos." But whereas you talk of the riot and violence committed by him, we wonder you make no mention of the riot and violence of them, that stole away his daughter, which was the first ground of all that noise, as we said beFor a man may be compelled by manifest fore Thus leaving all the particulars of your carriage in this business, to the own proper time, which is ever the discoverer of truth, we commend you to God. Given under our signet at Nantwich, in the fifteenth year of our reign of Great Britain, etc. SIR HENRY YELVERTON, ATTORNEY-GENE- My MOST WORTHY AND Honourable Lord. I dare not think my journey lost, because I have with joy seen the face of my master, the king, though more clouded towards me than I looked for. Sir Edward Coke hath not forborne, by any engine, to heave at your honour, and at myself; and he works by the weightiest instrument, the Earl of Buckingham, who, as I see, sets him as close to him as his shirt, the earl speaking in Sir Edward's praise, and, as it were, menacing in his spirit. My lord, I emboldened myself to assay the temper of my Lord of Buckingham to myself, and found it very fervent, misled by information, which yet I find he embraced as truth, and did nobly and plainly tell me, he would not secretly bite; but whosoever had any interest, or tasted of the opposition to his brother's marriage, he would as openly oppose them to their faces, and they should discern what favour he had, by the power he would use. In the passage between him and me, I stood with much confidence upon these grounds. First, That neither your lordship, nor myself, had any way opposed, but many ways had furthered the fair passage to the marriage. Secondly, That we only wished the manner of Sir Edward's proceedings to have been more temperate, and more nearly resembling the earl's sweet disposition. Thirdly, That the chiefest check in this business was Sir Edward himself, who listened to no advice, who was so transported with passion, as he purposely declined the even way, which your lordship and the rest of the lords left both him, his lady, and his daughter in. Fourthly, I was bold to stand upon my ground; and so I said I knew your lordship would, that these were slanders, which were brought him of us both, and that it stood not with his honour to give credit to them. After I had passed these straits with the earl, leaving him leaning still to the first relation of envious and odious adversaries, I had ventured to approach his majesty, who graciously gave me his hand to kiss, but intermixed withal that I deserved not that favour, if three or four things were true, which he had to object against me. I was bold to crave his princely justice; first, to hear, then to judge; which he graciously granted, and said, he wished I could clear myself. I answered I would not appeal to his mercy in any of the points, but would endure the severest censure, if any of them were true. Whereupon he said, he would reserve his judgment till he heard me; which could not be then, his other occasions pressed him so much. All this was in the hearing of the earl; and, I protest, I think the confidence in my innocency made me depart half justified; for I likewise kissed his majesty's hand at his departure; and though out of his grace he commanded my attendance to Warwick, yet upon my suit he easily inclined to give me the choice, to wait on him at Windsor, or at London. Now, my lord, give me leave, out of all my affections, that shall ever serve you, to intimate touching yourself: 1. That every courtier is acquainted, that the earl professeth openly against you, as forgetful of his kindness, and unfaithful to him in your love, and in your actions. 2. That he returneth the shame upon himself, in not listening to counsel, that dissuaded his affections from you, and not to mount you so high, not forbearing in open speech, as divers have told me, and this bearer, your gentleman, hath heard also, to tax you, as if it were an inveterate custom with you, to be unfaithful to him, as you were to the Earls of Essex and Somerset. 3. That it is too common in every man's mouth in court, that your greatness shall be abated; and as your tongue hath been as a razor to some, so shall theirs be to you. 4. That there are laid up for you, to make your burden the more grievous, many petitions to his majesty against you. My lord, Sir Edward Coke, as if he were already upon his wings, triumphs exceedingly; hath much private conference with his majesty; and in public doth offer himself, and thrust upon the king, with as great boldness of speech, as heretofore. It is thought, and much feared, that at Woodstock he will again be recalled to the counciltable; for neither are the earl's ears, nor his thoughts, ever off him. Sir Edward Coke, with much audacity, affirmeth his daughter to be most deeply in love with Sir John Villiers; that the contract pretended with the Earl of Oxford is counterfeit; and the letter also, that is pretended to have come from the earl. My noble lord, if I were worthy, being the meanest of all to interpose my weakness, I would humbly desire, 1. That your lordship fail not to be with his majesty at Woodstock. The sight of you will fright some. 2. That you single not yourself from other lords; but justify the proceedings as all your joint acts; and I little fear but you pass con The were mentioned in my last, whereof I thought The following papers, containing the Lord Changood presently to advertise his majesty. days hold without all question, and all delays diverted and quieted. Sir Edward Coke was at Friday's hearing, but in his night-cap; and complained to me, he was ambulant, and not current. I would be sorry he should fail us in this cause. Therefore I desired his majesty to signify to him by your lordship, taking knowledge of some light indisposition of his, how much he should think his service disadvantaged in this cause, if he should be at any day away; for then he cannot sentence. By my next I will give his majesty some account of the tobacco and the currants. rest 1 ever Your lordship's most obliged friend and faithful servant, FR. VERULAM, Canc. November 20, at evening, 1619. TO THE KING. MAY IT PLEASE YOUR MAJESTY, Sir Edward Coke is now a foot, and, according to your command, signified by Mr. Secretary Calvert, we proceed in Peacock's examinations. For although there have been very good diligence used, yet certainly we are not at the bottom; and he, that would not use the utmost of his line to sound such a business as this, should not have due regard, neither to your majesty's honour nor safety. A man would think he were in Luke Hutton's case again; for as my Lady Roos personated Luke Hutton, so, it seemeth, Peacock personateth Atkins. But I make no judgment yet, but will go on with all diligence: and, if it may not be done otherwise, it is fit Peacock be put to torture. He deserveth it as well as Peacham did. I beseech your majesty not to think I am more bitter, because my name is in it; for, besides that I always make my particular a cipher, when there is question of your majesty's honour and service, I think myself honoured for being brought into so good company. And as, without flattery, I think your majesty the best of kings, and my noble Lord of Buckingham the best of persons favoured; so I hope, without presumption, for my honest and true intentions to state and justice, and my love to my master, I am not the worst of chancellors. God ever preserve your majesty. February, 10, 1619. VOL. II.-64 cellor Elesmere's exceptions to Sir Edward Coke's "Reports," and Sir Edward's answers, having never been printed, though Mr. Stephens, who had copied them from the originals, designed to have given them to the public, they are subjoined here in justice to the memory of that great lawyer and judge; especially as the offence taken at his “Reports” by King James, is mentioned above in the letter of the lord chancellor and Sir Francis Bacon, of October 16, 1616, to that king. TO THE KING'S MOST EXCELLENT MAJESTY. IT MAY PLEASE YOUR MOST EXCELLENT MAJESTY: According to your majesty's directions signified unto me by Mr. Solicitor, I called the lord chief justice before me on Thursday the 17th of this instant, in the presence of Mr. Attorney and others of your learned counsel. I did let him know your majesty's acceptance of the few ani. madversions, which, upon review of his own labours, he had sent, though fewer than you expected, and his excuses other than you expected, as, namely, in the prince's case, the want of the original in French, as though, if the original had been "primogenitus" in Latin, then he had not in that committed any error. I told him farther, that because his books were many, and the cases therein, as he saith, 500, your majesty, out of your gracious favour, was pleased, that his memory should be refreshed; and that he should be put in mind of some passages dispersed in his books, which your majesty, being made acquainted with, doth as yet distaste, until you hear his explanation and judgment concerning the same. that out of many some few should be selected, and that at this time he should not be pressed with more, and these few not to be the special and principal points of the cases, which were judged, but things delivered by discourse, and, as it were, by expatiation, which might have been spared and forborne, without prejudice to the judgment in the principal cases. And Of this sort Mr. Attorney and Mr. Solicitor made choice of five specially, which were read distinctly to the lord chief justice. He heard them with good attention, and took notes thereof in writing, and, lest there might be any mistaking either in the declaring thereof unto him, or in his misconceiving of the same, it was thought good to deliver unto him a true copy. Upon consideration whereof, and upon advised deliberation, he did yesterday in the afternoon return unto me, in the presence of all your learned counsel, a copy of the five points before mentioned, and his answer at large to the same, which I make bold to pre 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 66 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 adjudges it void as to the services; and the donor shall |