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lity, the court, and others here near at hand, an affection loving and cheerful, to present the king some with plate, some with money, as free-will offerings, a thing that God Almighty loves, a cheerful giver: what an evil eye doth 1 know not. And, my lords, let me speak it plainly unto you: God forbid any body should be so wretched as to think that the obligation of love and duty, from the subject to the king, should be joint and not several. No, my lords, it is both. The subject petitioneth to the king in parliament. He petitioneth likewise out of parliament. The king on the other side gives graces to the subject in parliament: he gives them likewise, and pourcth them upon his people out of parliament: and so no doubt the subject may give to the king in parliament, and out of parliament. It is true the parliament is intercursus mo gnus, the great intercourse and main current of graces and donatives from the king to the people, from the people to the king: hut parliaments are held but at certain times: whereas the passages are always open for particulars; even as you see great rivers have their tides, but particular springs and fountains run continually.
To proceed therefore: As the occasion, which was the failing of supply by parliament, did awake the love and benevolence of those that were at hand to give; so it was apprehended and thought fit by my lords of the council to make a proof whether the occasion and example both, would not awake those inlhe country of the better sort to follow. Whereupon, their lordships devised and directed letters unto the sheriffs and justices, which declared what was done here above, and wished that the country might be moved, especially men of value.
Now, my lords, I beseech you give me favour and attention to set forth and observe unto you five points: I will number them, because other men may note them; and I will but touch them, because they shall not be drowned or lost in discourse, which I hold worthy the observation, for the honour of the state and confusion of slanderers; whereby it will appear most evidently what care was taken, that that which was then done might not have the effect, no nor the show, no nor so much as the shadow of a tax i and that it was so far from breeding or bringing in any ill precedent or example, as contrariwise it is a corrective that doth correct and allay the harshness and danger of former examples.
The first is, that what was done was done immediately after such a parliament, as made general profession to give, and was interrupted by accident: so as you may truly and justly esteem it, "tanquam posthuma proles parliamenti," as an after-child of the parliament, and in pursuit, in some small measure, of the firm intent of a parliament past. You may take it also, if you will, as an advance or provisional help until a future parliament; or as a gratification simply without any relation to a parliament; you can no ways take it amiss.
The second is, that it wrought upon example, as a thing not devised, or projected, or required; no nor so much as recommended, until many that were never moved nor dealt with, e.rmero motu, had freely
and frankly sent in their presents. So that the letters were rather like letters of news, what Iu done at London, than otherwise: and we know "exempla ducunt, non trahunt;" examples they do but lead, they do not draw nor drive.
The third is, that it was not done by commission under the great seal; a thing warranted by a multitude of precedents, both ancient, and of late time, as you shall hear anon, and no doubt warranted by law: so that the commissions be of that style and tenour, as they be to move that and not to levy: but this was done by letters of the council, and no higher hand or form.
The fourth is, that these letters had no manner of show of any binding act of state: for they contain not any special frame or direction how the business should be managed; but were written as upon trust, leaving the matter wholly to the industry and confidence of those in the country: so that it «m an absque computo; such a form of letters as no man could fitly be called to account upon.
The fifth and last point is, that the whole carriage of the business had no circumstance compulsory. There was no proportion or rate set down, not so much as by way of a wish; there was no menace of any that should deny; no reproof of any that did deny; no certifying of the names of any that had denied. Indeed, if men could not content themselves to deny, but that they must censure and inveigh, nor to excuse themselves, but they must accuse the state, that is another case. But I say, for denying, no man was apprehended, no nor noted. So that I verily think, that there is none so subtle a disputer in the controversy of liberum arbilrium, that can with all his distinctions fasten or carp upon the act, but that there was free-will in it.
I conclude therefore, my lords, that this was a true and pure benevolence; not an imposition called a benevolence, which the statute speaks of; as yon shall hear by one of my fellows. There is a great difference, I tell you, though Pilate would not see it, between " Rex Judesornm" and " se dicens Regem Jndieorum." And there is a great difference between a benevolence and an exaction called a lwnevolence, which the duke of Buckingham speaks of in his oration to the city; and defincth it to be not what the subject of his good-will would give, but what the king of his good-will would take. But this, I say, was a benevolence wherein every man had a prince's prerogative, a negative voice; and this word ex*usez moy, was a plea peremptory. And therefore I do wonder how Mr. I. S. could foul or trouble so clear a fountain, certainly it was but his own bitterness and unsound humours.
Now to the particular charge: Amongst other counties, these letters of the lords came to the justices of D—shire, who signified the contents thereof, and gave directions and appointments for meetings concerning the business, to several towns and places within that county: and amongst the rest, notice was given unto the town of A. The mayor of A conceiving that this Mr. I. S. being a principal person, and a dweller in that town, was a man likely to give both money and good example, dealt with him to know his mind: he intending, ns it seems, to play prizes, would give no answer to the mayor in private, but would take time. The next day then being an appointment of the justices to meet, he takes occasion, or pretends occasion to be absent, because he would bring his papers upon the stage: and thereupon takes pen in hand, and instead of excusing himself, sits down and contriveth a seditious and libellous accusation against the king and state, which your lordships shall now hear, and sends it to the mayor: and withal, because the feather of his quill might fly abroad, he gives authority to the mayor to impart it to the jam ices, if he so thought good. And now, my lords, because I will not mistake or mis-repeat, you shall hear the seditious libel in the proper terms and words thereof.
[Here the papers were read.]
My lords, I know this paper offends your ears much, and the ears of any good subject; and sorry I am that the times should produce offences of this nature: but since they do, I would be more sorry they should be passed without severe punishment: "Non tradite factum," as the verse says, altered a little, •' aut si tradatis, facti quoque tradite pcenam." If any man have a mind to discourse of the fact, let him likewise discourse of the punishment of the fact.
In this writing, my lords, there appears a monster with four heads, of the progeny of him that is the father of lies, and takes his name from slander.
The first is a wicked and seditions slander; or, if I shall use the Scripture phrase, a blaspheming of the king himself; setting him forth for a prince perjured in the great and solemn oath of his coronation, which is as it were the knot of the diadem; a prince that should be a violator and infringer of the liberties, laws, and customs of the kingdom; a mark for a Henry the fourth; a match, for a Richard the second.
The second is a slander and falsification, and wresting of the law of the land gross and palpable: it is truly said by a civilian, " Tortnra legnm pessimn," the torture of laws is worse than the torture of men.
The third is a slander and false charge of the parliament, that they had denied to give to the king: a point of notorious untruth.
And the last is a slander and taunting of an infinite number of the king's loving subjects, that have given towards this benevolence and free contribution; charging them as accessary and co adjutors to the king's perjury. Nay, you leave ns not there, but you take upon you a pontifical habit, and couple your slander with a curse; but thanks be to God, we have learned sufficiently out of the Scripture, that " as the bird flies away, so the causeless curse shall not come."
For the first of these, which concerns the king, I have taken to myself the opening and aggravation thereof; the other three I have distributed to my fellows.
My lords, I cannot but enter into this part with some wonder and astonishment, how it should come into the heart of a subject of England to vnpour
forth such a wicked and venomous slander against the king, whose goodness and grace is comparable, if not incomparable, unto any of the kings his progenitors. This therefore gives me a jnstand necessary occasion to do two things: the one, to make some representation of his Majesty; such as truly he is found to be in his government, which Mr. I. S. chargeth with violation of laws and liberties: the other, to search and open the depth of Mr. I. S. his offence. Both which I will do briefly ; because the one, I cannot express sufficiently; and the other, I will not press too far.
My lords, I mean to make no panegyric or laudative; the king delights not in it, neither am I fit for it: but if it were but a counsellor or nobleman, whose name had suffered, and were to receive some kind of reparation in this high court, I would do him that duty as not to pass his merits and just attributes, especially such as are limited with the present case, in silence: for it is fit to hum incense where evil odours have been cast and raised. Is it so that king James shall be said to be a violator of the liberties, laws, and customs of his kingdoms? Or is he not rather a noble and constant protector and conservator of them all? I conceive this consisteth in maintaining religion and the true church; in maintaining the laws of the kingdom, which is the subject's birthright; in temperate use of the prerogative; in due and free administration of justice, and conservation of the pefice of the land.
For religion, we must ever acknowledge, in the first place, that we have a king that is the principal conservator of true religion through the christian world. He hath maintained it not only with sceptre and sword, but likewise by his pen; wherein also he is potent.
He hath awaked and re-authorized the whole party of the reformed religion throughout Europe; which through the insolencyand divers artifices and enchantments of the adverse part, was grown a little dull and dejected: he hath summoned the fraternity of kings to enfranchise themselves from the usurpation of the see of Rome: he hath made himself a mark of contradiction for it.
Neither can I omit, when I speak of religion, to remember that excellent act of his Majesty, which though it were done in a foreign country, yet the church of God is one, and the contagion of these things will soon pass seas and lands: I mean, in his constant and holy proceeding against the heretic Vorstius, whom, being ready to enter into the chair, and there to have authorized one of the most pestilent and heathenish heresies that ever was begun, his Majesty by his constant opposition dismounted and pulled down. And I am persuaded there sits in this court one whom God doth the rather bless for being his Majesty's instrument in that service.
I cannot remember religion and the church, but I must think of the seed-plots of the same, which are the universities. His Majesty, as for learning amongst kings, he is incomparable in his person; so likewise hath he been in his government a benign or benevolent planet towards learning: by whose influence those nurseries and gardens of learning,
the universities, were never more in flower nor fruit.
For the maintaining of the laws, which is the hedge and fence about the liberty of the subject, I may truly affirm it was never in better repair. He doth concur with the votes of the nobles; "Nolumus leges Anglise mutare." He is an enemy of innovation. Neither doth the universality of his own knowledge carry him to neglect or pass over the very forms of the laws of the land. Neither was there ever king, I am persuaded, that did consult so oft with his judges, as my lords that sit here know well. The judges are a kind of council of the king's by oath and ancient institution; but he useth them so indeed: he confers regularly with them upon their returns from their visitations and circuits: he gives them liberty, both to inform him, and to debate matters with him j and in the fall and conclusion commonly relies on their opinions.
As for the use of the prerogative, it runs within the ancient channels and banks: some things that were conceived to be in some proclamations, commissions, and patents, as overflows, have been by his wisdom and care reduced; whereby, no doubt, the main channel of his prerogative is so much the stronger. For evermore overflows do hurt the channel.
As for administration of justice between party and party, I pray observe these points. There is no news of great seal or signet that flies abroad for countenance or delay of causes; protections rarely granted, and only upon great ground, or by consent. My lords here of the council and the king himself meddle not, as hath been used in former times, with matters of meum and tuum, except they have apparent mixture with matters of estate, but leave them to the king's courts of law or equity. And for mercy and grace, without which there is no standing before justice, we see, the king now hath reigned twelve years in his white robe, without almost any aspersion of the crimson dye of blood. There sits my lord Hobart, that served attorney seven years. I served with him. We were so happy, as there passed not through our hands any one arraignment for treason; and but one for any capital offence, which was that of the lord Sanquhar; the noblest piece of justice, one of them, that ever came forth in any king's time.
As for penal laws, which lie as snares upon the subjects, and which were as a nemo ncit to king Henry VII.; it yields a revenue that will scarce pay for the parchment of the king's records at Westminster.
And lastly for peace, we see manifestly his Majesty bears some resemblance of that great name, "a Prince of Peace:" he hath preserved his subjects during his reign in peace, both within and without. For the peace with states abroad, we have it usque ad salietatem: and for peace in the lawyers' phrase, which count trespasses, and forces, and riots, to be contra pacem; let me give your lordships this token or taste, that this court, where they should appear, had never less to do. And certainly there is no better sign of omnia bene, than when this court is in a still.
But, my lords, this is a sea of matter: and therefore I must give it over, and conclude, that there was never king reigned in this nation that did better keep covenant in preserving the liberties and procuring the good of Ill's people: so that I must needs say for the subjects of England,
"0 fortunatus niraium sua si bona norint;"
as no doubt they do both know and acknowledge it; whatsoever a few turbulent discourses may, through the lenity of the time, take boldness to speak.
And as for this particular, touching the benevolence, wherein Mr. I. S. doth assign his breach of covenant, I leave it to others to tell you what the king may do, or what other kings have done; but I have told you what our king and my lords hate done: which, I say again, is so far from introducing a new precedent, as it doth rather correct, and mollify, and qualify former precedents.
Now, Mr. I. S. let me tell you your fault in few words: for that I am persuaded you see it already, though I woo no man's repentance; but I shall, as much as in me is, cherish it where I find it Your offence hath three parts knit together:
Your menace, and
For your slander, it is no less than that the king is perjured in his coronation oath. No greater offence than perjury; no greater oath than that of a coronation. I leave it; it is too great to aggravate.
Your menace, that if there were a Bullingbroke, or I cannot tell what, there were matter for him, is a very seditious passage. You know well, that howsoever Henry the fourth's act, by a secret providence of God, prevailed, yet it was but an usurpation; and if it were possible for such a one to he this day, wherewith it seems your dreams are troubled, I do not doubt, his end would be upon the block; and that he would sooner have the ravens sit upon his head at London bridge, than the crown at Westminster. And it is not your interlacing of your " God forbid," that will salve these seditious speeches: neither could it be a forewarning, because the matter was past and not revocable, but a very stirring up and incensing of the people. If I should say to you, for example, " If these times were like some former times, of king Henry VIII. or some other times, which God forbid, Mr. I. S. it would cost you your life;" I am sure you would not think this to be a gentle warning, but rather that I incensed the court against yon.
And for your comparison with Richard II. I see, you follow the example of them that brought him upon the stage, and into print, in queen Elizabeth's time, a most prudent and admirable queen. But let me entreat you, that when you will speak of queen Elizabeth or king James, you would compare them to king Henry VII. or king Edward I. or some other parallels to which they are alike. And this I would wish both you and all to take heed of, how you speak seditious matter in parables, or by tropes or examples. There is a thing in an indictment called nn innuendo; you must beware ,how you beckon or make signs upon the king in a dangerous sense: but I will contain myself and press this no farther. I may hold you for, turbulent or presumptuous; but I hope you are not disloyal: you are graciously and mercifully dealt with. And therefore having now
opened to my lords, and, as I think to your own heart and conscience, the principal part of your offence, which concerns the king, I leave the rest, which concerns the law, parliament, and the subjects that have given, to Mr. Serjeant and Mr. Solicitor.
THE CHARG E OF O W E N,
INDICTED OF HIGH TREASON, IN THE KING'S BENCH,
BY SIR FRANCIS BACON, KNIGHT,
ins Majesty's Attornf.y-gknj-.rai..
The treason wherewith this man standeth charged, is for the kind and nature of it ancient, as ancient as there is any law of England; but in the particular, late and upstart: and again, in the manner and boldness of the present case, new and almost unheard of till this man. Of what mind he is now, [ know not; but 1 take him as he was, and as he standeth charged. For high treason is not written in ice j that when the body relenteth, the impression should go away.
In this cause the evidence itself will spend little time: time therefore will be best spent in opening fully the nature of this treason, with the circumstances thereof; because the example is more than the man. I think good therefore by way of inducement and declaration in this cause to open unto the court, jury, and hearers, five things.
The first is, the clemency of the king; because it is news, and a kind of rarity, to have a proceeding in this place upon treason: and perhaps it may be marvelled by some, why after so long an intermission it should light upon this fellow; being a person but contemptible, a kind of venomous fly, and a hang-by of the seminaries.
The second is, the nature of this treason, as concerning the fact, which, of all kinds of compassing the king's death, 1 hold to be the most perilous, and as much differing from other conspiracies, as the lifting up of a thousand hands against the king, like the giant, Briareus, differs from lifting up one or a few hands.
The third point that I will speak unto is, the doctrine or opinion, which is the ground of this treason; wherein I will not argue or speak like a divine or scholar, but as a man bred in a civil life; and to speak plainly, I hold the opinion to be such that deservelh rather detestation than contestation.
The fourth point is, the degree of this man's offence, which is more presumptuous than I have known any other to have fallen into in this kind, and hath a greater overflow of malice and treason.
And fifthly, I will remove somewhat that may
seem to qualify and extenuate this man's offence; in that he hath not affirmed simply that it is lawful to kill the king, but conditionally; that if the king be excommunicate, it is lawful to kill him: which maketh little difference either in law or peril.
For the king's clemency, I have Raid it of late upon a good occasion, and I still speak it with comfort: I have now served his Majesty's solicitor and attorney eight years and better; yet this is the first time that ever I gave in evidence against a traitor at this bar or any other. There hath not wanted matter in that party of the subjects whence I his kind of offence floweth, to irritate the king: he hath been irritated by the powder of treason, which might have turned judgment into fury. He hath been irritated by wicked and monstrous libels; irritated by a general insolency and presumption in the papists throughout the land; and yet I see his Majesty keepeth Ca?sar's rule: "Nil malo, quam eos esse similes sui, et mei." He leaveth them to be like themselves; and he remaineth like himself, and striveth to overcome evil with goodness. A strange thing, bloody opinions, bloody doctrines, bloody examples, and yet the government still unstained with blood. As for this Owen that is brought in question, though his person be in his condition contemptible; yet we see by miserable examples, that these wretches which are but the scum of the earth, have been able to stir earthquakes by murdering princes; and if it were in case of contagion, as this is a contagion of the heart and soul, a rascal may bring in a plague into the city as well as a great man: so it is not the person, but the matter that is to be considered.
For the treason itself, which is the second point, my desire is to open it in the depth thereof, if it were possible; but it is bottomless: I said in the beginning, that this treason in the nature of it was old. It is not of the treasons whereof it may be said, from the beginning it was not so. You are indicted, Owen, not upon any statute made against (he pope's supremacy, or other matters, that have reference to religion; but merely upon tlmt law which Whs born with the kingdom, and was law even in superstitious times, when the pope was received. The compassing and imagining of the king's death was treason. The statute of 25 Edw. III. which was but declaratory, begins with this article as the capital of capitals in treason, and of all others the most odious and the most perilous: and so the civil law saith, "Conjurationcs omnium proditionum odiosissimse et perniciosissinite." Against hostile invasions and the adherence of subjects to enemies, kings can arm. Rebellions must go over the bodies of many good subjects before they can hurt the king; but conspiracies against the persons of kings are like thunder-bolts that strike upon the sudden, hardly to be avoided. "Major metiis a singulis," saith he, "quam ab universis." There is no preparation against them: and that preparation which may be of guard or custody, is a perpetual misery. And therefore they that have written of the privileges of ambassadors, and of the amplitude of safe-conducts, have defined, that if an ambassador or a man that cometh in upon the highest safe-conducts, do practise matter of sedition in a state, yet by the law of nations he ought to be remanded; but if he conspire against the life of a prince by violence or poison, he is to be justiced: "Quia odium est omni privilegio majus." Nay, even amongst enemies, and in the most deadly wars, yet nevertheless conspiracy and assassination of princes hath been accounted villanous and execrable.
The manners of conspiring and compassing the king's death are many: but it is most apparent, that amongst all the rest this surmounteth. First, because it is grounded upon pretenced religion ; which is a trumpet that inflameth the heart and powers of a man with daring and resolution more than any thing else. Secondly, it is the hardest to be avoided; for when a particular conspiracy is plotted or attempted against a king by some one or some few conspirators, it meets with a numberof impediments. Commonly he that hath the head to devise it, hath not the heart to undertake it: and the person that is used, sometimes faileth in courage; sometimes faileth in opportunity; sometimes is touched with remorse. But to publish and maintain, that it may be lawful for any man living to attempt the life of a king, this doctrine is a venomous sop; or, as a legion of malign spirits, or an universal temptation, doth enter at once into the hearts of all that are any way prepared, or of any predisposition to be traitors; so that whatsoever faileth in any one, is supplied in many. If one man faint, another will dare; if one man hath not the opportunity, another hath; if one man relent, another will be desperate. And thirdly, particular conspiracies have their periods of time, within which if they be not taken, they vanish; but this is endless, and importeth perpetuity of springing conspiracies. And so much concerning the nature of the fact.
For the third point, which is the doctrine; that upon an excommunication of the pope, with sentence of deposing, a king by any son of Adam may be slaughtered; and that it is justice and no murder;
and that their subjects are absolved of their allegiance, and the kings themselves exposed to spoil and prey. I said before, that I would not argue the subtlety of the question: it is rather to be spoken to by way of accusation of the opinion as impious, than by way of dispute of it as doubtful. Nay, I say, it deserveth rather some holy war or league amongst all christian princes of either religion for the extirpating and razing of the opinion, and the authors thereof, from the face of the earth, than the style of pen or speech. Therefore in this kind I will speak to it a few words, and not otherwise. Nay, I protest, if I were a papist I should say as much: nay, 1 should speak it perhaps with more indignation and feeling. For this horrible opinion is our advantage, and it is their reproach, and will be their ruin.
This monster of opinion is to be accused of three most evident and most miserable slanders.
First, Of the slander it bringeth to the christian faith, being a plain plantation of irreligion and atheism.
Secondly, The subversion which it introduceth into all policy and government.
Thirdly, The great calamity it bringeth upon papists themselves; of which the more moderate sort, as men misled, are to be pitied.
For the first, if a man doth visit the foul and polluted opinions, customs, or practices of heathenism, Mahometism, and heresy, he shall find they do not attain to this height. Take the examples of damnable memory amongst the heathen. The proscriptions in Rome of Sylla, and afterwards of the Triumvirs, what were they? They were but a finite number of persons, and those not many that were exposed unto any man's sword. But what is that to the proscribing of a king, and all that shall take his part? And what was the reward of a soldier that amongst them killed one of the proscribed? A small piece of money. But what is now the reward of one that shall kill a king? The kingdom of heaven. The custom among the heathen that was most scandalized was, that sometimes the priest sacrificed men; but yet you shall not read of any priesthood that sacrificed kings.
The Mahometans make it a part of their religion to propagate their sect by the sword; but yet still by honourable wars, never by villanies and secret murders. Nay, 1 find that the Saracen prince, of whom the name of the assassins is derived, which had divers votaries at commandment, which he sent and employed to the killing of divers princes in the east, by one of whom Amnrath the first was slain, and Edward the first of England was wounded, was put down and rooted out by common consent of the Mahometan princes.
The anabaptists, it is true, come nearest. For they profess the pulling down of magistrates: and they can chant the psalm, "To bind their kings in chains, and their nobles in fetters of iron." This is the glory of the saints, much like the temporal authority that the pope challengeth over princes. But this is the difference, that that is a furious and fanatical fury, and this is a sad and solemn mis