WHITELOCKE, James (1570-1632), of Fleet Street, London and Fawley Court, Bucks.

A distinguished judge with a wide circle of friends, Whitelocke was described by Charles I as ‘a stout, wise, and a learned man’, who ‘knew what belongs to uphold magistrates and magistracy in their dignity’. Whitelocke, i. 31. His wide learning, especially in parliamentary history, coupled with a strong sense of his own dignity and rectitude, inclined him to lay down the law, whether at the bar or in Parliament, with a degree of certainty and finality unusual even in his profession. W. Notestein, House of Commons, 1604-10, p. 379. This characteristic was not calculated to endear him to his fellow lawyers, among them lord chancellor Ellesmere (Thomas Egerton†), who once rebuked him with the sardonic remark: ‘Mr. Whitelocke, these be things you may know, that are omniscious and know all things’. Liber Famelicus, 36.

Whitelocke’s father, the younger son of a medieval Berkshire family, was a London merchant who resided ‘in a great house in Thames Street’. PROB 11/53, f. 148; Liber Famelicus, 5. Whitelocke and his twin brother William were born three weeks after their father’s death. Despite their mother’s marriage a year later to ‘a notable unthrift’, he was brought up ‘in as good sort as any gentleman in England would do’. Liber Famelicus, 6. The eldest brother, Edmund, travelled for some years, and on his return ‘lived amongst lords’, one of whom involved him in the Essex rising and another brought him under suspicion of complicity in the Gunpowder Plot. Ibid. 7-10. Whitelocke himself studied at Merchant Taylors’ school under Richard Mulcaster, and acted in the plays which the boys performed before the Court. With fellow pupil George Wright* he was chosen to attend St. John’s College, Oxford, where his friends included Thomas* and Humphrey May*, with whom he later shared chambers in the Temple. Ibid. 12, 14-5, 21. Whitelocke subsequently obtained a fellowship to study civil law at St. John’s, while he managed to train simultaneously as a common lawyer at the inns of court. Ibid. 14. On at least one occasion he was granted leave of absence to follow college business in London, and he was made steward of the college lands in 1601. Stevenson and Salter, 367-8.

Whitelocke’s marriage to a niece of John Croke†, the former Speaker of the Commons, brought him important legal connections at Court, but he probably owed his selection as recorder of Woodstock in 1606 to the borough’s high steward, Sir Henry Lee†, who was a tenant of St. John’s. VCH Oxon. x. 135; W.C. Costin, Hist. St. John’s (Oxf. Hist. Soc. n.s. xii), 26. On 6 Dec. 1609 he was elected there in place of Lee’s half-brother, and took his seat in 1610. Although he had recently begun to write his autobiography, Liber Famelicus, he declared his intention not to ‘report anything done in the Parliament house in this book, which I employ to meaner matters’. Liber Famelicus, 24; D.X. Powell, Sir James Whitelocke’s Liber Famelicus: Law and Pols. in Early Stuart Eng. He was among those ordered to prepare for two conferences on the absolutist theories propounded by the civilian Dr. Cowell in The Interpreter (27 Feb., 7 Mar.) and was named to a wide range of committees, including bills on the residence of university principals (16 Apr.) and hawking (17 April). CJ, i. 400b, 407a, 418a, b. On 1 May he was one of nine Members ordered to search the records in the Tower ‘touching impositions’, together with his ‘much honoured and worthy friend’ Sir Robert Cotton, whose acquaintance he had made as a member of the Society of Antiquaries. CJ, i. 423a; Cott. Julius C.III, f. 400. Whitelocke took a prominent role in the attack upon impositions, and made his maiden speech in the Commons on the subject on 22 May. In response the king’s denial of the Commons’ claim to dispute his power of imposing in general, Whitelocke warned:

if we let this pass sub silentio all posterity is bound by it ... the ancient frame of our commonwealth is much altered in points wherein it differs in fortune and blessedness from many other commonwealths. One is that we are masters of our own and can have nothing taken from us without our consents; another that laws cannot be made without our consents, and the edict of a prince is not a law; and the third is that the Parliament is the storehouse of all our liberties. All these are in danger ... We know not how this may stretch. CJ, i. 430b, ‘Paulet 1610’, ff. 20v-21r; Procs.1610 ed. E.R. Foster, ii. 109; Notestein, 326-7.

He then moved for a committee. On 2 June he argued in grand committee on the Great Contract that ‘this matter of support was a thing strange and never heard of in Parliament but once [in 11 Hen. VI]’, and claimed that it was pointless to compound for purveyance, since ‘the like abuses’ would grow up again, ‘as in the matter of imposition, for it appears in the rolls of Parliament that Tunnage and Poundage were given at the first for the discharge of all impositions upon merchandises’. Parl. Debates 1610 ed. S.R. Gardiner, 47. On 16 June the House ordered that the records which he had found in the Tower should be brought in, and on the following day he himself wrote to the clerk, Robert Bowyer*, urging him ‘not to let this work slack’ because the Commons was ‘anxious to see this business ripened’. CJ, i. 440a; HMC 3rd Rep. 13. On 26 June he was one of those appointed to prepare for a conference that afternoon on the Great Contract. CJ, i. 443b. His most important speech was delivered in grand committee on 2 July, T. Birch, Ct. and Times of Jas. I, i. 121; Parl. Debates 1610, pp. 103-9. and was printed in 1641 as the work of ‘a late eminent judge of this nation’. A Learned and Necessary Argument (1641), pp. 8, 9, 11, 37-40, 44; R. Ashton, Eng. Civil War, 14; N and Q (ser. 2), x. 111-15. He denied the legality of impositions on four grounds, laying the greater emphasis on the first and fourth of these as being more suitable for discussion in Parliament, and as ‘not enforced by others’. To prove the first part of his case, that the levying of impositions was ‘against the natural frame and constitution of the policy of this kingdom’, he argued that the king’s power in Parliament was greater than his power out of it.

Can any man give me a reason why the king can only in Parliament make laws? No man ever read any law whereby it was so ordained; and yet no man ever read that any king practised the contrary. Therefore it is the original right of the kingdom, and the very natural constitution of our state and policy, being one of the highest rights of sovereign power. Procs. 1610, ii. 221-4.

To levy impositions ‘out of Parliament’, the king must ‘either take his subjects’ goods from them, without assent of the party, which is against the law; or else he must give his own letters patent the force of a law ... which is also against the law’. After presenting his lesser points with a wealth of historical and legal learning, he proffered ‘an historical perlustration’ of the past 300 years in justification of the last part of his argument, that impositions were ‘against the practice and action of our commonwealth’. Following the line taken earlier by William Hakewill*, he showed that they had only been levied in times of extreme need, for fixed periods, and upon few commodities. They had always been complained of in Parliament, ‘and not one that ever stood after such complaint made, but remedy was afforded for it’. Moreover, ‘the king in no one case ever claimed, or so much as ever named, his right or prerogative’. Indeed, ‘our kings have acknowledged that it is not their right’. The petitions exhibited by the Commons, on the other hand, had made it ‘the very knot of their grief, and the principal cause of their complaint’ that the impositions had been set without their consent, ‘by which is necessarily inferred that their grief was in point of right, not of burden’. Parl. Debates 1610, pp. 103-9; Notestein, 378-81. On the day after delivering this speech, Whitelocke was appointed to help draft the petition against the impositions. CJ, i. 445a. Seven days later he was named to a committee to ‘digest the dispute on both sides’, and again ordered to examine the records. Ibid. 447b. He was one of the handful of Members named to consider the bill on impositions before this was declared an open committee. Ibid. 447b, 450a. He was also appointed to attend conferences on the bills for the better execution of justice in the North (3 July) and requiring parliamentary confirmation for canon law (5 July), and to prepare for a conference on the Great Contract (14 July). Ibid. 445b, 446b, 449b.

During the fifth and final session of the Parliament, which met in the autumn of 1610, Whitelocke suggested that impositions might be ‘suffered for some few years’, if the Exchequer judgment in Bate’s Case were reversed and a law passed to restrain the king from imposing thereafter. Parl. Debates 1610, p. 142. After the Contract negotiations had finally collapsed, 30 Members of the Commons met the king in private, without the House’s permission, to discuss how best to proceed. Whitelocke was furious, and described them as ‘dogs in the commonwealth that watched between the wolf and the lamb, so that they being delivered the more rapine would be made’, a remark which subsequently drew from Humphrey May the warning that the king had taken offence. ‘Paulet 1610’, f. 31v; Liber Famelicus, 32.

In 1612 Whitelocke obtained a footing in the immensely lucrative prothonotaryship of the King’s Bench as agent of his wife’s kinsman, Sir John Harington*. That same year he may have been consulted by his close friend Sir Henry Neville I* over the latter’s note of advice to the king regarding the management of a future Parliament. Procs. 1614 (Commons), 247-53. He certainly provided legal advice to the treasurer of the Navy, Sir Robert Mansell* regarding the earl of Northampton’s proposal to establish a fresh commission of inquiry into the Navy’s administration. Any such commission, he concluded, would be ‘void and against law’, a finding which was held to challenge the royal prerogative and to ‘shake the foundations of monarchy’. Lansd. 160, f. 88; Winwood’s Memorials ed. E. Sawyer, iii. 462; Chamberlain Letters ed. N.E. McClure, i. 455; Letters and Life of Francis Bacon ed. J. Spedding, iv. 346-57. His offence was compounded by the fact that he also challenged the commission for executing the office of earl marshal, and consequently both he and Mansell were imprisoned. APC, 1613-14, pp. 28, 41, 211-19. With the help of his friend Sir Francis Bacon*, Whitelocke obtained his release by a full submission. Bacon subsequently recommended him to the king in his scheme for the revival of law reporting. Lansd. 486, ff. 15-16.

Early in 1614 Harington died, and in the settlement of his estate Whitelocke sold the benefit of his interest in the prothonotaryship for £800, but did not surrender his patent. L. Stone, Crisis of the Aristocracy, 444-5. Following the issue of writs of election in February, the earl of Montgomery (Sir Philip Herbert*) pressed for another candidate at Woodstock. However, Whitelocke had no shortage of patrons willing to help him get into the Parliament, for without his knowledge the wife of Sir Edward Coke* brought him in for her borough of Corfe Castle, ‘lest an honest man should be left out’, Liber Famelicus, 41. while Sir Robert Killigrew*, Mansell’s nephew and another associate of Neville, offered him a seat at Helston, which he passed on to his brother-in-law Henry Bulstrode*. Ibid. 41. In the event, however, he was also re-elected at Woodstock, for which he chose to sit. Procs. 1614 (Commons), 37; T.L. Moir, Addled Parl. of 1614, p. 50. He was appointed to the committee to examine precedents concerning the right of the attorney-general to serve as a Member of the Commons (8 Apr.), and later spoke at length on the question before moving that Bacon should be admitted but that thereafter no holder of the office should sit. Procs. 1614 (Commons), 33, 55-6. He was added to the committee for privileges (9 Apr.), and was named to that for the management of the joint conference with the Lords on the bill to settle the succession following the marriage of Princess Elizabeth to the Elector Palatine (14 April). Ibid. 41, 82. On 12 Apr. he supported Secretary Winwood’s motion for immediate supply, against those who insisted that redress of grievances must come first. Ibid. 67. Six days later, however, he was less conciliatory at the second reading of the impositions bill. Whitelocke claimed that since James’s accession the number had risen from ‘but two or three impositions, and now there is 1,100’. He maintained that the matter had already been settled ‘by voice of the House’ in 1610, but agreed that ‘a declaration of the law’ might be made, ‘to the satisfaction of the king’. Ibid. 95; HMC De L’Isle and Dudley, v. 175. On 20 Apr. he joined in the general condemnation of the French Company’s patent. Procs. 1614 (Commons), 114. When the House returned to the question of impositions after the Easter recess, Whitelocke urged that it proceed by petition rather than by bill (5 May), and favoured the proposition of a conference to prepare a petition of both Houses. The king was ‘misinformed’ and needed to be satisfied that impositions were ‘no flower of the crown’, or if they were, then one that had endured a long winter, ‘not budding in 160 years’. He further moved that the House should not proceed as if they were fighting ‘a duel with the king’, refusing ‘to do for him, except he do this’, but should continue with supply, and ‘so to make it a Parliament of love’. Ibid. 148-9, 157; HMC De L’Isle and Dudley, v. 177. He was subsequently appointed to the committee to prepare for a joint conference with the Lords on the subject. Procs. 1614 (Commons), 151. On the following day he pointed out in debate on the second reading of one of the bills of grace brought in by Bacon, for admitting the king’s subjects to plead the general issue, that ‘a true prerogative of the king’ was here at stake, ‘that every man, upon an information, must show how he claimeth his land from the crown’, and illustrated his argument by the case of one of his own clients. Ibid. 161-2. Bacon replied that he would ‘not fly so high a pitch as Mr. Whitelocke, for to cause all to derive from the crown’. Ibid. 162. When, amid rumours that there was a secret undertaking to manage the Parliament, Neville admitted having earlier offered advice to the king, Whitelocke declared (14 May) that ‘this disclosing and avowing of the paper is not the business of undertaking’, and recommended that a protestation be sent to the king stating ‘that there is no undertaking’. Ibid. 245. Whitelocke was named to a committee to consider the charges of sedition made against the Commons by another of his wide circle of friends, Richard Neile, bishop of Lincoln (25 May). Ibid. 346. He is not known to have spoken in the resulting debates, but the friendship remained intact as Neile retained him as standing counsel in 1617 and contributed to the expenses of his reader’s feast in 1619. Liber Famelicus, 73. The Addled Parliament was dissolved on 7 June and on the following day Whitelocke and the others who had been assigned parts in the conference on impositions (which had never taken place) were summoned before the Council, and ordered to produce their notes for burning. Whitelocke brought in his ‘24 sides in folio’ on the period from Edward I to Edward III, ‘the heat of all the business’. Ibid. 41-2. Six months later he received the ‘impost for 2 tun of wine’ as a flippant Christmas gift from (Sir) Humphrey May. Ibid. 45.

By 1615 Whitelocke’s practice at the bar was bringing him more than £600 p.a., and in the following year he purchased Fawley, on the boundary between Buckinghamshire and Oxfordshire, for £9,000, of which he paid £3,000 down with the remainder to be paid within two years. Lipscomb, Bucks. iii. 559, 561; VCH Bucks. iii. 38, 40-1. It was in 1616 also that he was finally ‘blown out of’ the prothonotaryship of the King’s Bench, to which Buckingham had secured the reversion. He surrendered his interest only after receiving a royal mandate and ‘some intimation under hand of threats if I did not’. R. Lockyer, Buckingham, 31-2; Liber Famelicus, 57-8. In 1618 he was asked to stand for the recordership of London, where his supporters included his kinsman Sir William Cokayne and Sir Thomas Bennet, father-in-law of Sir George Croke†. The king, however, was determined that Buckingham should choose the next recorder, and although Whitelocke’s friends were able to force the withdrawal of Robert Shute*, Buckingham’s second choice, Robert Heath* was elected after Whitelocke himself had retired from the contest. He described his failure as ‘a revenge for doing my duty in Parliament’. Chamberlain Letters, ii. 180, 182; Liber Famelicus, 63, 64, 66, 69. He was nonetheless shortly afterwards made deputy custos rotulorum to Buckingham in the liberties of Westminster and St. Martin’s-le-Grand, which, if modest as a consolation prize, indicates that Buckingham was willing to countenance him. Liber Famelicus, 69. Moreover, Sir Lionel Cranfield*, Buckingham’s agent in the recordership contest, soon became Whitelocke’s fast friend, and attended his reading on pluralities (21 Hen. VIII, c.13) and reader’s feast in 1619. W.R. Prest, Inns of Ct. 120, 226. In the following year Whitelocke was made serjeant-at-law and chief justice of Chester. He was said to have paid Buckingham for the office, but his son, Bulstrode Whitelocke*, records that when this was brought forward as a charge against Buckingham in 1626, ‘no colour nor ground of proof’ was found for it. Chamberlain Letters, ii. 328; Procs. 1626, iii. 54.

Whitelocke’s office was no bar to his re-election at Woodstock, but when Parliament met on 30 Jan. 1621 he was keeping term at Ludlow for the Court in the Marches. In early March he and other members of the Council in the Marches replied to a letter from William Compton, earl of Northampton and lord president of Wales, asking for their views on proposed Welsh legislation. HMC 13th Rep. IV, 260-1. By 22 Mar. the House was asked to consider ordering a fresh election to replace him, but judgment was suspended and Whitelocke made his appearance before any further steps were taken. CJ, i. 568b, 569a; CD 1621, vi. 81. He subsequently played little recorded part in proceedings, however, being named to only three committees, all between 16 and 29 May, two for legal bills and one to consider the Lichfield parish bill. CJ, i. 622a, 624a, 631a. In addition, he was ordered to assist Sir Julius Caesar* in reporting the adjournment conference of 29 May. Ibid. 629b. Whitelocke’s servant, arrested upon an execution of debt, was granted privilege on 28 May. When it was revealed on 4 June that the bailiffs had known of his status they were required to ask forgiveness of the House and of Whitelocke on their knees, and ordered to be ridden upon one horse, bareback, from Westminster to the Exchange. Ibid. 638a; CD 1621, v. 196-7.

Whitelocke did not seek election to the last Jacobean Parliament for Woodstock, as he had surrendered the recordership, nor is he known to have sought a seat elsewhere. At Chester he did not get on well with Northampton, the president of the Marches, and therefore his removal to King’s Bench was proposed by Buckingham. Whitelocke was initially unwilling to accept this offer, but he was sworn in at the beginning of October 1624. Liber Famelicus, 95-6; Chamberlain Letters, ii. 585. Although he was no longer eligible to sit in the Commons, in 1626 he asked Sir Humphrey May, now chancellor of the duchy of Lancaster, to nominate his son Bulstrode at Boroughbridge, in Yorkshire. This was unsuccessful, but via his friend Matthew Cradock, clerk of the assize for the Oxfordshire circuit, Whitelocke arranged for Bulstrode’s election at Stafford. He also advised his son on parliamentary matters, including where to sit in the House, and encouraged him to keep a diary of proceedings. Diary of Bulstrode Whitelocke ed. R. Spalding, 53-4.

Whitelocke never spoke on religion in Parliament, but as a judge he rejected as groundless in law the indictment for popish practices brought in 1628 against the Durham chapter, and expressed his personal approval of the practices in question. CSP Dom. 1628-9, pp. 259, 266. Besides Neile, by then bishop of Durham, his friends among the Arminian clergy included Laud, a contemporary at St. John’s, and Richard Montagu. When the judges were questioned by the Commons in February 1629 for their leniency in the affair of the secret Jesuit college discovered at Clerkenwell, Whitelocke explained, as did two of his colleagues, that he had arrived late on the first day and had not been present at all on the second. CD 1629, p. 82. After the Parliament, he largely concurred in the treatment of Sir John Eliot and the other Members who had held the Speaker down in his chair on 2 Mar., on the ground that privilege did not extend to sedition; but in the Long Parliament he and Sir George Croke were declared free of blame for the delay in their trial. C. Russell, PEP, 364; S.R. Gardiner, Hist. Eng. 1603-42, vii. 117-18; State Trials ed T.B. Howell, iii. 307-9, 311. On that occasion his son swayed the House by falsely describing Whitelocke as one who had suffered ‘a strait and close imprisonment for what he said and did as a member of this honourable House’. Whitelocke, i. 36-9, 112. It was rumoured in the autumn of 1629 that he might shortly be promoted to lord chief baron, but in the event he was passed over. T. Birch, Ct. and Times of Chas. I, ii. 33, 35.

Whitelocke made his will on 20 Aug. 1631, in which he left Fawley to his only son Bulstrode. PROB 11/162, f. 376. He died in June 1632 and was buried under an elaborate alabaster effigy of himself and his wife in Fawley church. Lipscomb, iii. 563. His portrait, painted shortly before his death, is now at the National Portrait Gallery.