coke countess OF shrewsbury case Trin James of contempt the privilege of peer  in legal proceed SC Howell state trial see I hawk c per tot ch sect ch sect c  ch sect hawk ch S in this term before a select council at Yorkhouse sure the  Lord chancellor the archbishop the duke of Lenox the earl of Northampton Lord  privy seal the earl of Suffolk Lord chamberlain the earl of Worcester the earl  of Pembroke viscount Erskine viscount Rochfort the Lord zouch the Lord Knolls  the Lord Wootton the chancellor of the exchequer the chancellor of the duchy  Fleming chief justice of the king bench Philips master of the roll coke chief  justice of the common plea and Tanfield chief baron the countess of Shrewsbury  the wife of Gilbert earl of Shrewsbury then prisoner in the tower be bring  before the say lord and by the attorney and solicitor of the king be charge  with a high and great contempt of dangerous con coke report er p sequence for  they declare that the lady arbella be of the blood royal have marry Seymour  second son of the earl of Hertford without privity or assent of the king for  which contempt the say Seymour be commit to the tower and have escape and flee  beyond the sea the lady arbella be under restraint escape also and embark  herself upon the sea and be take before she get over of which flight of the  say lady arbella the say countess be her aunt very well know and abet as be  direct prove by Crompton and not deny by the lady arbella and admit it that  the lady arbella have no evil intent against the king who have always a great  and special care of her and be very bountiful unto her until her marriage with  the say Seymour which be the pomum v etitum yet when she flee and when she  shall be environ with evil spirit cumperversis overthrow to be able and when  she shall be in another sphere she will not move within the same orb and the  lord of the privycouncil know the arcanum command do show diverse perilous  consequence and the rather for this that the say countess be a obstinate  Popish recusant and as be say pervert also the lady arbella now the charge be  in two point that the say countess of Shrewsbury by commandment of the king be  call to the counciltable before the lord of the Council at Whitehall and there  be require by the lord to declare her knowledge touch the say point and to  discover what she know concern they for the safety of the king and quiet of  the realm she answer that she will not make any particular answer and be again  ask by the king command by the Council at Lambeth and be charge again to  answer to the say point she refuse for two cause for that she have make a rash  vow that she will not declare any thing in particular touch the say point and  for that as she say it be better to obey God than man coke she stand upon her  privilege of nobility sure to answer only when she be call judicial before her  peer for that such privilege be allow as she say to William earl of Pembroke  and to the Lord Lumlev the second point of her charge be that when such answer  which she have make be put in write and read to her yet she refuse to  subscribe to it which denial to discover and discharge her conscience in a  case which touch the safety of the king and quiet of the realm be urge by the  king Council to be a great and high contempt and that nobility have not any  such privilege as be allege nor any such allowance as be suppose and that rash  and illegal vow make not a excuse and that this precedent be now upon the  stage be of very dangerous consequence and the say countess hear the charge  yet persist in her obstinate refusal for the same reason and cause upon which  she have insist before and the Lord chancellor begin and the archbishop and  all the other lord begin with the first and adjudge it a great and high  contempt and the Lord chancellor say that that be against the lie of England  with which all the lord agree and that no such allowance be give to the say  earl of Pembroke or to the Lord Lumley in respect of their privilege of  nobility but that they be v ocesPopuli et therefore non andiendce and the Lord  archbishop principal prove that as well the contempt as the say rash vow be  against the law of God which he and the earl of Northampton principal prove by  diverse text and example in holy scripture and the effect of all that which  the the justice say be that after the sentence of all the learned prudent and  honourable personage and counsellor of estate they may well be silent but in  regard that silence in senate be fault they will speak something brief  videlicet that three thing in this case be to be well consider whether the  refusal aforesaid of the say countess be offence in law against the king his  crown and dignity what manner of proceed this be and whether it be justifiable  by precedent or reason what be the demerit of the offence and how punishable  as to the first it be resolve by the justice and master of the roll that the  deny to be examine be a high and great contempt in law against the king his  crown and dignity and that if it shall be permit it will be a occasion of coke  report er p many high and dangerous design against the king and the realm  which can be discover and upon hope of impunity it will be a encouragement to  offender as Fleming justice say to enterprise dangerous attempt and the master  of the roll say that it be not any privilege of nobility to refuse to be  examine in this case no more than of any subject also if one that be noble and  a peer of the realm be sue in the starchamber or in chancery they ought to  answer upon their oath and may be examine in the starchamber upon  interrogatory upon their oath and if one who be noble be produce as a witness  between party and party he ought to be swear or otherwise his testimony be of  no value and so be the common experience in the say court and the chief  justice say that forasmuch as where order be neglect confusion will follow he  will recite some of the honourable privilege which the law of England more  than any other law attribute to the nobility coke of England in legal proceed  and they will not be impertinent but give a great light to the case now in  hand if a baron viscount earl or other Lord of parliament and peer of the  realm be plaintiff in any action and the defendant will plead that the  plaintiff be not a baron viscount earl c as he be name in the writ this shall  not be try at the commonlaw by jury who may be corrupt nor by witness as in  the starchamber or chancery who may be suborn but it shall be try by the  record in chancery which import by itself solid truth so great regard have the  law to the trial of their honour and dignity c a their person have many  honourable privilege in law at the suit of a subject their body shall not be  arrest neither capias nor exigent lie against they for the honour and  reverence which the law give to nobility their body be not subject to torture  in causan sin icesce Majestatis b they be not to be swear in assize jury or  other inquest if any servant of the king name in the chequeroll compass or  intend to kill any Lord of parliament or other Lord of the king Council this  be felony in the common plea a Lord of parliament shall have knight return on  his jury c he shall have day of grAcc a Lord of parliament shall not be try in  case of treason felony or misprision of they by those who be noble and peer of  the realm in trial of a peer the lord of parliament shall not swear but they  give their judgement sum ZDperfidem et allegiance lord king debt is owed so  that their faith and allegiance stand in equipage with a oath in the case of a  common person in trial of life and the writ of parliament direct to the lord  of parliament be subfideetligeantia a Vid note a countess of Rutland case   a  note a Lord Abergavennys case ante p b Mr Hargrave in a note to the case of  the countess of Shrewsbury howel state trial remark it be surprise that  doctrine so reflect on the law of England shall escape from one of Lord coke  character his language as attorneygeneral at the trial of the earl of Essex  and Southampton imply the same obnoxious tenet but in his three institute be  give it as his opinion most decisive that all torture of accuse person be  contrary to our law and to prove it cite Lord chancellor fortescue famous book  de landibus law Anglioe where he argue for a preference of our law to the  civil law from the latter allowance of torture Inst in the case of Felton for  the murder of the duke of Buckingham the judge be unanimous that Felton can  not be torture by the rack for no such punishment say they be know or allow by  our law I rush as to the instance of torture collect by a most respectable  writer of the present time they only prove a irregularity of practice  Barrington Ant stat that Edward if torture be lawful we shall find rule to  direct its application Vid black Com Mr Amoss note b fortescue de landibus  ling hist England Vol VIII p that edition c this be alter by Geo c Vid black  command coke report er p c and the reason and cause that the king give they  many other privilege be for this because all honour and nobility be derive  from the king as the true fountain and the king honour with nobility for two  cause ad to meet and consider and for that reason he give they a robe ad to  ward off king et kingdom and for that cause he give they a sword and forasmuch  as they derive their dignity accompany with all those honourable privilege  from the king to deny to answer be require thereto by the king to such point  as concern the safety of the king and quiet of the realm be a high contempt  and disobedience accornpanied with great ingratitude coke this denial be  contraligeanliam svan debilam against the faith and allegiance of a person  noble due to the king and which the law great esteem and that this deny be  against her faith and allegiance appear by the ancient oath of allegiance  which be imprint in the heart of every subject sure er spit et trusty et  reality prstabo lord king de vitaetmembro et de terreno honor ad  vivendumetmoriendum contraomnes gentes c et si become acquainted with of or  andian de to some place financial loss or evil quod lord king to come out to  be able quod non revelator c and this oath of allegiance be common to all  subject as well those of the nobility as commonalty but the law have great  account of the faith and allegiance of a nobleman than of one of the commons  for this that the breach of their allegiance be more dangerous to the king and  estate for corruplio optimorum be bad and for this reason the countess by her  allegiance be bind without be demand to reveal to the king what she know  concern the premise upon which great mischief may happen to the king and the  realm but be command by the king to declare her knowledge the deny of it do  great aggravate the offence who conlemnit prceptum conlemnit prcipientem  command and obedience be the ligament of government and allegiance be law  essence for without allegiance and obedience the law can proceed as to the  second point videlicet concern the manner of this proceed privative it be not  to fine and imprison or inflict corporal punishment upon the countess for fine  and imprisonment ought to be assess in some court judicial positive the fine  be to bring to mind or at the most ad minand it be ad to build in non ad to  tear down this select council be to express what punishment this offence just  deserve if it be judicial proceed with in the starchamber for which reason  this manner of proceed be out of the mercy and grace of the king against this  honourable lady that she see her offence may submit herself to the king  without any punishment in any court judicial if sentence shall be give in the  starchamber accord to justice you the lord shall be agent in it but in this  manner accord to the mercy of the king the king be only agent the law have put  rule and limit to the justice of the king but not unto his mercy that be  transcendent and without any limit of the law et therefore processus isle be  royal plane et ring dignus also inasmuch as the allegiance and obedience of  the subject be the best flower in his imperial garland to the intent that it  may neither be blast nor impair by this dangerous example to the prejudice of  his royal prerogative and posterity this proceed have be think necessary and  this be forfeit by the precedent of the earl of Essex against who such proceed  be bring in this very place year et Elizabeth Reg and as to the last point it  be resolve by all quasi One voice that if a sentence shall be give in the  starchamber judicial she shall be fine twenty thousand pound and imprison  during the king pleasure vide before c Hoc in lerrorem send qure quid ind  venit?Note to former edition she be fine Vid hob coke report er p