The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Trin. 10 Jacob. Regis.

Countess of Shrewsbury's Case.

In this Term, before a select Councel at York-house, the Countess of Shrewsbury (Wife of Gilbert Earl of Shrewsbury) then Prisoner in the Tower, was brought, and by the Kings Attorney and Sollicitor was charged with a high Contempt of dangerous consequence; declaring, That the Lady Arbella, being of the Blood-Royal, had marryed Seymor, the Earl of Hertford's second Son, with∣out the King's Consent, for which he was committed to the Tower, and had escaped and fled beyond the Seas. And the Lady Arbella being under restraint escaped also, and embarked her self on the Sea, but was taken ere she got o∣ver: of which flight of the Lady Arbella, the said Coun∣tess well knew, as is directly proved by Crompton, and not denied by the Lady Arbella. And admitting the Lady Arbella had no evil intent against the King; yet when she fled, and should be inviron'd with Evil Spirits, cum perversis perverti possit.

Now the Charge was in two Parts:

1. That the Countess of Shrewsbury, being by the King's Command called to the Councel-Table, and be∣ing required by the Lords, to declare her knowledge touching the said Points; she answered, she would not an∣swer particularly; and being again by the King's Com∣mands asked by the Councel at Lambeth, she refused for two Causes:

1. Because she had made a Vow, that she would not declare any thing in particular touching the said Points; and (she said) it was better to obey God, than Man.

2. She stood upon her Priviledge of Nobility, viz. to answer, when Judicially called before her Peers: such Priviledge having been allowed to William Earl of Pem∣broke, and the Lord Lumly.

2. The second Point of the Charge was, That when the Answer she had made was put in Writing, and read to her, yet she refused to subscribe the same: Which Denial was urged by the King's Councel, as a high con∣tempt, &c. And the Countess hearing the Charge, yet persisted in her obstinate Refusal, for the same Reasons the insisted on as before: And the Lord Chancellor be∣gan, and the Archbishop and the other Lords adjudged it a great and high Contempt: And that no such allow∣ance was to the Earl of Pembroke, or Lord Lumly, as was supposed. And the Archbishop, and Earl of Northampton, proved by Scripture, that the said Case now was against the Law of God.

All that the Justices said was, That they might well be silent; but that silentium in Senatu est vitium: and therefore they briefly speak of three things:

1. Wh••ther the Refusals aforesaid were Offences in Law, against the King, his Crown, and Dignity.

2. What Proceeding this is; and if justifiable by Pre∣sident or Reason.

3. What the Offences are, and how punishable.

1. As to the first: It was resolved by the Justices, and Master of the Rolls, that the denying to be examined, was a high Contempt against the King, his Crown, and Dignity: and upon hope of Impunity, it will be an en∣couragement to Offenders, as Fleming Chief Justice said, to enterprize dangerous Attempts.

The Master of the Rolls said, the Nobility in this Case, had no more priviledge to deny to be examined, than any other Subject.

Also, if one Noble be sued, and a Peer be sued in Star-Chamber or Chancery, they must answer upon their Oaths: And if produced as a Witness, they ought to be

sworn: And therefore for maintaining of Order, the Chief Justice said he would recite some of those Honou∣rable Priviledges, which the Law of England attributes to Nobility.

1. If a Baron Viscount, Earl, &c. be Plaintiff in any Action, and the Defendant will plead, that the Plain∣tiff is not a Baron, &c. this shall be tryed onely by the Record in Chancery, which imports by its self solid truth.

2. Their Persons have many Priviledges in Law.

1. At a Subjects Suit they shall not be arrested.

2. Their Bodies are not subject to Torture, in causa criminis ••aesae Majestatis.

3. They are not to be sworn in Assiz••s, Juries, or In∣quests.

4. It is Felony in any Servant of the King, named in the Checquer Roll, to compass or intend to kill any Lord of Parliament, or of the King's Councel.

5. In the Common-Pleas, a Lord shall have Knights returned of his Jury.

6. He shall have Day of Grace.

7. Shall not be Tryed in case of Treason, Felony, or Mi••prison of them, but by those that are Nobles and Peers.

8. In Tryal of a Peer, the Lords of Parliament shall not swear, but give their Judgment, Super Fidem & Lige∣antiam Domino Regi debitam. And the King honours with Nobility for two Causes.

1. Ad consulendum; and therefore he gives them a Robe.

2. Ad Defendendum Regem & Regnum; and therefore he gives them a Sword.

And therefore, as they derive their Dignities with those Honourable Priviledges from the King; to deny to answer, being required by the King, is a high Con∣tempt, accompanied with great Ingratitude.

This Denial is contra Ligeantiam suam, as appears by

the Antient Oath of Allegeance: And the Law hath greater account to a Noble-mans Allegeance, then one of the Commons, because the breach of their Allegeance is more dangerous; for Corruptio optimorum est pessima.

2. As to the second Point, viz. concerning the man∣ner of Proceedings.

1. Privative: It is not to fine, imprison, or inflict cor∣poral punishment; for that ought to be assessed in some Court Judicially.

2. Positive: The Fine is ad monendum; or at most, ad minandum: it is, ad instruendum non ad destruendum.

This selected Councel, is to express what punishment this Offence justly deserved, if judicially proceeded a∣gainst in the Star-Chamber: Therefore this Proceeding is out of the King's Mercy to this Lady; that seeing her Offence, she might submit to the King, without any Judicial Proceedings against her. And though the Law puts Limits to the King's Justice, it doth not so to his Mercy: Et ideo processus iste est regalis plane & rege dig∣nus. And this manner of Proceeding, is fortified by the President of the Earl of Essex, against whom such Pro∣ceedings were in this very place, 42 & 43 Eliz.

As to the last Point, It was resolved by all, quasi una voce, that if a Sentence should be given in the Star Cham∣ber, she should be fined 20000 l. and imprisoned during the Kings pleasure.