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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 mischief: he " imagineth mischief as a law ;" a lawlike mischief.
As for the defence which they do make, it doth aggravate the sin, and tiirneth it from a cruelty towards man to n blasphemy towards God. For to say that all this is "in ordine ad spirituale," and to a good end, and for the salvation of souls, it is directly to make God author of evil, and to draw him in the likeness of the prince of darkness; and to say with those that St. Paul speaketh of, " Let us do evil that good may come thereof;" of whom the apostle saith definitively, " that their damnation is just."
For the destroying of government universally, it is most evident, that it is not the case of protestant princes only, but of catholic princes likewise; as the king hath excellently set forth. Nay, it is not the case of princes only, but of all subjects and private persons. For touching princes, let history be perused, what hath been the causes of excommunication; and namely, this tumour of it, the deposing of kings; it hath not been for heresy and schism alone, but for collation and investitures of bishoprics and benefices, intruding upon ecclesiastical possessions, violating of any ecclesiastical person or liberty. Nay. generally they maintain it, that it may be for any sin: so that the difference wherein their doctors vary, that some hold that the pope hath his temporal power immediately, and others but "in ordine ad spirituale," is but a delusion and an abuse. For all Cometh to one. What
is there that may not be made spiritual by consequence; especially when he that giveth the sentence may make the case? and accordingly hath the miserable experience followed. For this murdering of kings hath been put in practice, as well against papist kings as protestant: save that it hath pleased God so to guide it by his admirable providence, as the attempts upon papist princes have been executed, and the attempts upon protestant princes have failed, except that of the Prince of Orange: and not that neither, until such time as he had joined too fast with the duke of Anjou and the papists. As for subjects, I see not, nor ever could discern, but that by infallible consequence it is the case of all subjects and people, as well as of kings; for it is all one reason, that a bishop upon an excommunication of a private man, may give his lands and goods in spoil, or cause him to be slaughtered, as for the pope to do it towards a king; and for a bishop to absolve the son from duty to the father, as for the pope to absolve the subject from his allegiance to his king. And this is not my inference, but the very affirmative of pope Urban the second, who in a brief to Godfrey, bishop of Lucca, hath these very words, which cardinal Baronius reciteth in his Annals, " Non illos homicidas arbilramur, quiadversusexcommunicatoszelocatho- lomgJ^1 p Here matris ardentes eorum quoslibet trucidare contigerit," speaking generally of all excommunications.
THE KING'S ATTORNEY-GENERAL,
MR. LUMSDEN, SIR JOHN WENTWORTH, AND SIR JOHN HOLMES.
FOR SCANDAL AND TRADUCING THE KING'S JUSTICE IN THE PROCEEDINGS AGAINST WESTON IN THE
STAR-CHAMBER, NOVEMBER, 1615.
The offence wherewith I shall charge the three offenders at the bar, is a misdemeanor of a high nature, tending to the defacing and scandal of justice in a great cause capital. The particular charge is this:
The king amongst many his princely virtues is known to excel in that proper virtue of the imperial throne, which is justice. It is a royal virtue, which doth employ the other three cardinal virtues in her service: wisdom to discover, and discern nocent or innocent; fortitude to prosecute and execute; temperance, so to carry justice as it be not passionate in the pursuit, nor confused in involving persons upon light suspicion, nor precipitate in time. For this his Majesty's virtue of justice God hath of late
raised an occasion, and erected as it were a stage or theatre, much to his honour, for him to show it, and act it in the pursuit of the untimely death of Sir Thomas Overbury, and therein cleansing the land from blood. For, my lords, if blood spilt pure doth cry to heaven in God's ears, much more blood defiled with poison.
This great work of his Majesty's justice, the more excellent it is, your lordships will soon conclude the greater is the offence of any that have sought to affront it or traduce it. And therefore, before 1 descend unto the charge of these offenders, I will set before your lordships the weight of that which they have sought to impeach; speaking somewhat of the general crime of imprisonment, and then of the particular circumstances of this fact upon Overbury; and thirdly and chiefly, of the king's great and worthy care and carriage in this business.
The offence of impoisonment is most truly figured in that device or description, which was made of the nature of one of the Roman tyrants, that he was "lutum sanguine maceratum," mire mingled or cemented with blood : for as it is one of the highest offences in guiltiness, so it is the basest of all others in the mind of the offenders. Treasons " magnum aliquidspectant:" they aim at great things; but this is vile and base. I tell your lordships what I have noted, that in all God's book, both of the Old and New Testament, I find examples of all other offences and offenders in the world, but not any one of an impoisonment or an impoisoner. I find mention or fear of casual impoisonment: when the wild vine was shred into the pot, they came complaining in a fearful manner; Master, " mors in olla." And I find mention of poisons of beasts and serpents ; " the poison of asps is under their lips." But I find no example in the book of God of impoisonment. I have sometime thought of the words in the psalm, "let their table be made a snare." Which certainly is most true of impoisonment; for the table, the daily bread, for which we pray, is turned to a deadly snare: but I think rather that that was meant of the treachery of friends that were participant of the same table.
But let us go on. It is an offence, my lords, that hath the two spurs of offending; spes perficiendi, 'and spes celandi; it is easily committed, and easily concealed.
It is an offence that is " tanquam sagitta nocte volans ;" it is the arrow that flies by night. It discerns not whom it hits: for many times the poison is laid for one, and the other takes it; as in Sander's case, where the poisoned apple was laid for the mother, and was taken up by the child, and killed the child: and so in that notorious case, whereupon the statute of 22 Hen. VIII. cap. 9, was made, where the intent being to poison but one or two, poison was put into a little vessel of barm that stood in the kitchen of the bishop of Rochester's house; of which barm pottage or gruel was made, wherewith seventeen of the bishop's family were poisoned: nay, divers of the poor that came to the bishop's gate, and had the broken pottage in alms, were likewise poisoned. And therefore if any man will comfort himself, or think with himself, Here is great talk of impoisonment, I hope I am safe; for I have no enemies; nor I have nothing that any body should long for: Why, that is all one; for he may sit at table by one for whom poison is prepared, and have a drench of his cup, or of his pottage. And so, as the poet saith, " concidit infelix alieno vulnere;" he may die another man's death. And therefore it was most gravely, and judiciously, and properly provided by that statute, that impoisonment should be high treason; because whatsoever offence tendeth to the utter subversion and dissolution of human society, is in the nature of high treason.
Lastly, it is an offence that I may truly say of it, "non est nostri generis, nec sanguinis." It is, thanks
be to God, rare in the isle of Britain: it is neither of our country, nor of our church; you may find it in Rome or Italy. There is a region, or perhaps a religion for it: and if it should come amongst us, certainly it were better living in a wilderness than in a court.
For the particular fact upon Overbury. First, for the person of Sir Thomas Overbury: I knew the gentleman. It is true, his mind was great, but it moved not in any good order; yet certainly it did commonly fly at good things; and the greatest fault that I ever heard of him was, that he made his friend his idol. But I leave him as Sir Thomas Overbury.
But take him as he was the king's prisoner in the Tower; and then see how the case stands. In that place the state is as it were respondent to make good the body of a prisoner. And if any thing happen to him there.it may, though not in this case, yet in some others, make an aspersion and reflection upon the state itself. For the person is utterly out of his own defence; his own care and providence can serve him nothing. He is in custody and preservation of law; and we have a maxim in our law, as my lords the judges know, that when a state is in preservation of law nothing can destroy it, or hurt it. And God forbid but the like should be for the persons of those that are in custody of law; and therefore this was a circumstance of great aggravation.
Lastly, To have a man chased to death in such manner, as it appears now by matter of record; for other privacy of the cause I know not; by poison after poison, first roseaker, then arsenick, then mercury sublimate, then sublimate again; it is a thing would astonish man's nature to hear it. The poets feign, that the furies had whips, that they were corded with poisonous snakes; and a man would think that this were the very case, to have a man tied to a post, and to scourge him to death with snakes: for so may truly be termed diversity of poisons.
Now I will come to that which is the principal; that is, his Majesty's princely, yea, and as I may truly term it, sacred proceeding in this cause. Wherein I will first speak of the temper of his justice, and then of the strength thereof.
First, it pleased my lord chief justice to let me know, that which I heard with great comfort, which was the charge that his Majesty gave to himself first, and afterwards to the commissioners in this case, worthy certainly to be written in letters of gold, wherein his Majesty did fore-rank and make it his prime direction, that it should be carried, without touch to any that was innocent; nay more, not only without impeachment, but without aspersion: which was a most noble and princely caution from his Majesty; for men's reputations are tender things, and ought to be, like Christ's coat, without seam. And it was the more to be respected in this case, because it met with two great persons; a nobleman that his Majesty had favoured and advanced, and his lady being of a great and honourable house: though I think it be true that the writers say, That there is no pomegranate so fair or so sound, but may have a perished kernel. Nay, I see plainly, that in those