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ness, till you had heard it thoroughly disputed, that by that means ye might be fully informed of the state of the cause; it appears now by these papers, that you have, after your last day's consultation, put on a negative resolution, grounded upon fundaments of divinity and conscience, as you think, which hath moved me to send you herewith my judgment upon your arguments, in regard that I did ever hold it necessary, that in a matter of this weight all my commissioners should be as near of one mind, as might be; and therefore I would be sorry that your private conceits should so blind your judgment, as to make you and your followers draw the catharrows (perplex or torment) against your yoke-fellows; for that I may now open plainly my heart unto you, at my first reading of your papers from the bishop, I chanced to cast mine eye first upon the paper of your arguments, before I had looked upon your letter, and lighting upon your first words, Inasmuch as we do firmly believe, &c.' Í protest I thought it had been some strange confession of faith, that you had intercepted amongst some of the sectaries; but when I had read out the rest of that first article, God is my judge, I thought that paper had been some pasquil made against this divorce, which coming to your hands ye had sent me, and therefore without reading any farther therein, I looked upon your letter, which resolved me of all these doubts; but after that I had fully perused, and rightly considered of all your papers, I found your principles so strange, and your doubts so far sought, that I thought it necessary, as I have already said, to set down unto you my observations upon them. But to conclude my letter with that plainness that becometh one of my quality, I must freely confess, that I find the grounds of your opposition so weak, as I have reason to apprehend, that the prejudice you have of the persons is the greatest motive of breeding these doubts into you; which prejudice is the most dangerous thing that can fall in a judge for misleading of his mind. And the reason moving me to this apprehension, is partly grounded upon your

last words to me at your parting from Windsor, and partly upon a line scraped out in your paper of doubts: for I am sure you think me not so blunt a secretary, but that I can read a line so scraped out. In your last speeches with me, you remember you told me what assurance you had of the earl's ability out of his own mouth, which you said you could not but trust, because he was so religious a nobleman. But when I told you of the other party's contrary affirmation, you remember how you used the word of iniquity; and how far your interlined line seems to have a harmony with this word, yourself can best judge. Now then, if I would ask you what proof you have of the one's religion more than the other's, you must answer me, by judging upon the exterior; and how deceivable that guess is, daily experience teaches us-But with a holy protestation that I never knew any thing but good in the young earl. Was not this the ground of master Robert Bruse's incredulity, because he knew the earl of Gowry to be truly religious; and did not beg a register. See Bothwell in his preface of his book De viris illustribus.' And as for your judgment of the other party, Christ's precept is the best answer unto you, Nolite judicare.' But if the question were to judge of the earl's inclination, whether is it likely that you or I could best judge of it; I, he having been bred with my late son, and served him so long; or you, that never spoke with him but once or twice in your life, and never knew either good or evil of him but out of his own mouth? I will conclude, therefore, with inverting the argument; that if a judge should have a prejudice in respect of persons, it should become you rather to have a kind of faith implicit in my judgment, as well in respect of some skill I have in divinity, as also that I hope no honest man doubts of the uprightness of my conscience; and the best thankfulness that you that are so far my creature, can use towards me, is, to reverence and follow my judgment, and not to contradict it, except where you may demonstrate unto me that I am mistaken, or wrong informed; and so farewel. JAMES R.

97. The Earl of NORTHAMPTON's Case: Mich. 10 JAMES I. A. D. 1613. [Coke's Reports, 132.]

THE Attorney-general informed against Tho. Gooderick, gent. sir Richard Cox, kt. Hen. Vernon, gent. Henry Minors, serjeant of the waggons, Tho. Lake, gent. and James Ingram, merchant, ore tenus in the Star-chamber, the last day of the Star-chamber, and charged Gooderick that he had spoken and published of the earl of Northampton, one of the grandees and peers of the realm, one of the king's Privy Council, lord Privy Seal, and lord guardian of the Cinque-ports, divers false and horrible scandals, scil. that more Jesuits, Papists, &c. have come into England, since the earl of Northamp

ton was guardian of the Cinque-ports, than before.

2. That the said earl had writ a book openly against Garnet, &c. but secretly he had writ a letter to Bellarmine, intimating that he writ the said book ad placandum regem, sive ad

faciendum [placendum] populum,' and requested that his book might not be answered; and that the archbishop of Canterbury had certified it to the king, and that the said Gooderick did relate it to one Dewsbury, a bachelor in divinity, who had acquainted the said earl with it. Gooderick being examined, confessed

other, or of any the great officers of the realm' ut 2 R. 2, c. 5, and the king is contained within the act of West. 1. cap. 34, as appears in Dyer 5. Mar. 155.

3. As to the third point it was resolved, that if one hear such false and horrible rumours, either of the king, or of any of the said grandees, it is not lawful for him to relate to others, that he hath heard J. S. to say such false and horrible words; for if it should be lawful, by this means they may be published generally, &c. And this doth appear by the said statute, viz that the party shall be imprisoned until he find out the party who spoke them, which proves that it was an offence, or otherwise be should not be punished for it by fine (for this is implied) and imprisonment.

the words spoken; but to extenuate his of fence said that he was not the first founder: and he vouched the said sir Richard Cox, who confessed that he related to Gooderick the matter concerning the book of the earl, and his - letter to Bellarmine, but not the words concerning the Cinque-ports; and that the archbishop of Canterbury had informed the king of it, to the intent that the earl of Northampton should not be lord treasurer, and to extenuate bis offence, he vouched the said Vernon, who upon examination confessed that which Richard Cox had published, but that he was not the first author, but he cited the said Lake, who did likewise confess what Vernon had said, but that he heard it from serjeant Nichols, who being exainined confessed it; and with all, that one Speaket related it to him, and that he had heard it from one James Ingram, and James Ingram being examined, confessed the words concerning the said book of the earl, and of the lettter to Bellarmine; and that in the month of October he heard the said words of two Eng-for example, Gooderick did not relate to Dewslish fugitives at Leghorn, and never did publish them until the death of the earl of Salisbury, treasurer, who died in May last: and all the said defendants confessed at the bar, all that with which they were charged, and at the hearing of this case were eleven judges of law, Fleming justice being absent propter ægritudi

nem.

And so it was resolved, that the publishing of false rumors, either concerning the king, or of the high grandees of the realm, was in some cases punished by the common law: but of this were divers opinions. Yet it was resolved in general:

1. Touching the matter and quality of the words: 2. Touching the persons of whom they are spoke. 3. The manner of contrivance, or publishing of them. 4. Touching the punishment, for which cause divers acts have made declaration, and have put things in certainty. And first of all, as to the words or rumours themselves.

1. They ought to be false and horrible. 2. Of which discord or slander may arise betwixt the king and his people, or the grandees of the realm, West. 2. cap. 24, or between the lords and commons, 2 R. 2, c. 53, by which great peril and mischief may come to all the realm. Ib. The subversion and destruction of the realm, ibidem. And for this the said act of 2 R. 2, against rumours, false and horrible messages (mesoignes) i. e. lies.*

2. As to persons, they are declared to be prelates, dukes, earls, barons, and other nobles and grandees of the realm, and also of the chancellor, treasurer, clerk of the privy seal, steward of the houshold of our sovereign lord the king, justice of the one bench and of the

Note, these statutes were occasioned by reason of some scandalous reflections, that had been raised by William Wickham, and the clergy, against John of Gaunt, &c. et è contre.

4. It was also resolved, that the offenders at bar, if against them the proceedings had been by indictment upon these statutes, no judgment could be had against them that they should be imprisoned until they found their author: for,

bury that he heard from sir Richard Cox, but he related the same words as of himself: and for this no judgment can be given against him, that he shall be imprisoned until he find his author; for this that he ought to be indicted for the words which he himself did speak, and then, de non apparentibus et non existentibus eadem 'est ratio.' When the indictment is general without any relation to a certain author, the judgment, which always ought to be given of matter apparent within the record, cannot be that he shall be imprisoned, until he hati: found his author.

And it was resolved, that if A. say to B. "did you not hear that C. is guilty of treason," &c. this is tantamount to a scandalous publication: and in a private action for slander of a common person, if J. S. publish that he hath heard J. N. say, that J. G. was a traitor or thief; in an action of the case, if the truth be such, he may justify.

But if J. S. publish that he hath heard generally without a certain author, that J. G. was a traitor or thief, there an action sur le case lieth against J. S. for this, that he hath not given to the party grieved any cause of action against any, but against himself who published the words, although that in truth he might hear them; for otherwise this might tend to a great slander of an innocent: for if one who hath læsam phantasiam, or who is a drunkard, or of no estimation, speak scandalous words, if it should be lawful for a man of credit to report them generally, that he had heard scandalous words, without mentioning of his author, that would give greater colour and probability that the words were true in respect of the credit of the reporter, than if the author himself should be mentioned, for the reputation and good name of every man is dear and precious to him: and a record was vouched in Mich. 33 and 34 Ed. and in the 30 Ass. pl. 10, and in the exchequer, Mich. 18 E. 1, rot. 4.

Note, that all the Commissions of Oyer and

Terminer give authority to enquire, de illicitis verborum propalationibus.' Vide le stat. 5 R. 2, cap. 6, and 17 R. 2, cap. 8, concerning 'rumours, and in 3 Ed. 2, in the exchequer, Henry Bray spoke of John Foxlee baron of the exchequer it was resolved, that the judgment in an indictment upon the said statutes, when the words are spoken generally, without relation to a certain author, is, that the offender shall be fined and imprisoned, for this is implied and included in the said statutes, as an incident to the offence, although that it is not expressed. Also the party grieved may have an action de scandalo magnatum,' and recover his damages. Also the party grieved, and the king's attorney, if the offenders deny it, may exhibit a bill in the Star-chamber against the offender, in

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which the king shall have a fine, and the party shall be imprisoned, and the court of Star-chamber may inflict corporal punishment, as to stand upon the pillory, and to have papers about his head.

And if the offenders confess it, then to proceed ore tenus upon their own confession; and for the publication of the said words, all the defendants were punished by all the presence, una voce nullo contradicente,' by fines and imprisonments; and Gooderick and Ingram were fined the most, for that Gooderick had no authority for the words concerning the Cinqueports, nor could Ingram find any author for to vouch, that he heard by persons unknown at Leghorn in foreign parts; and therefore it was taken as a fiction of his own.

1259.]

98. Proceedings against Dr. RICHARD NEILE, Bishop of Lincoln, for Words spoken in the House of Lords: 12 JAMES, A. D. 1614. [1 Cobb. Parl. Hist. ON May 28, 1614, a Message from the House of Commons was sent up to the Lords, by sir Edw. Hobby and others, in these words: "That at such time as the knights, citizens, and burgesses of the Commons House of Parliament sent up to the Lords a Message, praying a Conference with their lordships about Impositions: they hoped that, neither out of the words' nor matter of the Message, it had been possible to have framed any sinister or unworthy construction. That notwithstanding, by public and constant fame, they had heard, to their heart's grief, that one in this place and within these walls, namely, the lord bishop of Lincoln (Richard Neile), in order to dissuade the Lords from a Conference so desired, as aforesaid, did use words to the effect following, or the same words, viz. That the matter, whereof conference was by that house desired, is a noli me tangere; in conferring, also, that the taking the oaths of allegiance and supremacy is an impediment; so, as whoso

had taken the said oaths might not enter, safely, into conference of the said matter. 'Affirming farther, That it did strike, not at a branch, but at the root of the prerogative of the imperial crown; and that he doubted 'lest in such a Conference, as was desired, 'there would, from some of the committees of that house, proceed some undutiful and seditious speeches, unfit for their lordships to hear, tending to a dangerous rent and distraction of both houses, and to make an alienation between the king and his subjects.' That of such scandal their house is so sensible, that they have sent these messengers to signify their grief, and that they held the Lords so honourable, that they cannot but also take notice thereof. Wherefore, that house did desire that their lordships will join with them in some course to give them satisfaction for so great a wrong done to the Commons; which they have taken so to heart, that they have determined to forbear all parliament matter, until they may

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*The following story, printed in the account parliament? The bishop of Durham readily of Waller the poet's Life, 1712, and repeated answered, God forbid, sir, but you should: by Harris in his Life of James 1, and also by you are the breath of our nostrils.' WhereHume in his History, and Johnson in his Life upon the king turned and said to the bishop of Waller, throws some light on this bishop's of Winchester, Well, my lord, what say you?” character."Waller frequented the Court of Sir,' replied the bishop, I have no skill to James 1, where he heard a very remarkable judge of parliamentary cases.' The king anconversation, which the writer of the Life pre-swered, No put-offs, my lord; answer me fixed to his Works, who seems to have been well presently.' 'Then, Sir,' said he, I think it is informed of facts, though he may sometimes err lawful for you to take my brother Neale's moin chronology, has delivered as indubitably cer-ney; for he offers it.' Mr. Waller said, the tain: He found Dr. Andrews, bishop of Win- company was pleased with this answer, and the chester, and Dr. Neale, bishop of Durham, wit of it seemed to affect the king; for a cerstanding behind his majesty's chair; and there tain lord coming in soon after, his majesty happened something extraordinary, continues cried out, Oh, my lord, they say you lig with this writer, in the conversation those prelates my lady No, Sir,' says his lordship in had with the king, on which Mr. Waller did confusion; but I like her company, because she often reflect. His majesty asked the bishops, has so much wit.' Why then,' says the king, My lords, cannot I take my subjects' money, do you not lig with my lord of Winchester when I want it, without all this formality of there?'

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acquainted this house; "That though the commons did not take common and public Fame to be a sufficient ground or proof, by a legal and ordinary course of justice, in proceeding against any man; yet they held it enough to induce the lords of that house to take the matter into consideration. And albeit they did not set down the words, in particular; yet was the matter, as they conceive, suficiently laid down when in effect they said, "That the lord bishop of Lincoln, in this house to dissuade the lords from a Conference with them touch

receive Answer from the Lords; wherein they doubt not but their lordships will deal nobly with them, and they desire it may be speedily.' Sir Edward Hobby being asked by the lord chancellor, Whether he had in writing the Message so delivered, as aforesaid? Answered, He had not. The lords then returned Answer, "That they had taken notice of the Message, and will take the same into further consideration, as the weight thereof requireth: wherein they will have respect both to their honours and the honour of the other house; and will send them further Answer." After this, a shorting Impositions, termed the prerogative, &c. a Memorandum is entered on the Journals, intimating, That before the Answer, above specified, was agreed on, the serjeant of the Lower House came to the gentleman usher of the Lords, to learn, Whether their lordships would send Answer to the Message on that day, or not? To which the gentleman usher, with the privity of the Lords, answered, as from himself, That he knew not.

noli me tangere; insinuating that the taking of the Oath of Supremacy and Allegiance did restrain a man from treating of that business: also he doubted but in the Conference would be used, or spoken, some undutiful and seditious words, not fit for their lordships to hear, or words to the like or worse effect. That now the Commons do desire the Lords, if these words were not spoken, so to signify it to the house; otherwise, if they were used, then they hope their lordships will do as they have promised. Lastly, from the Commons, he said further, That they knew not what other course they could have taken to bring this matter to examination, or otherwise have any undutiful speech which may be moved in either house, called in question."

After sir Roger Owen had delivered his Message, the lord chancellor asked him, If he had it in writing? To which he answered in the negative. The lord chancellor then acquainted him, That the house would take his message into consideration, and send Answer, if they could, before they rise: otherwise, will let them know as much. Accordingly, the same day, the lords sent to acquaint the other house,

May 30. The Lord Chancellor moved the house to consider and resolve of an Answer to be sent to the Message or Complaint, which they lately received from the other house, touching the bishop of Lincoln. And, by or der, the archbishop of Canterbury produced a copy of one ready drawn, for that purpose, which being read, was to this effect: "That the Lords, having received from the Commons a Complaint against the bishop of Lincoln, have seriously entered into consideration of it, and do now return this Answer, That their lordships would take very tenderly that any unworthy aspersion should be laid on that body, which they so much respect; and with whom they desire to hold all good correspondence and agreement. But forasmuch as the Complaint seemeth to be grounded, not upon di-"That they had considered of their last Mesrect or certain proof, but only upon common sage, and, in debating thereupon, the lord bishop public fame; their lordships do not think that of Lincoln had humbly intreated that he might Common Fame only is a sufficient ground, be heard to explain himself; which being whereon they may proceed as in this cause is granted unto him, he had made a solemn prorequired. Nevertheless, their lordships are so testation, on his salvation, that he did not respective of any thing that may concern that speak any thing with any evil intention to the house, that when they shall be more certainly | House of Commons, which he doth with all informed, in direct and express terms, what hearty duty and respect highly esteem. Exthe words were wherein the lord bishop of Lin-pressing, with many tears, his sorrow that his coln is to be charged, and how the same are to words were so misconceived and strained furbe proved, they will proceed therein so effectu- ther than he ever intended them; and that his ally, according to honour and justice, as it speech should occasion so much trouble to shall thereby well appear how careful they are their lordships, or that the lower house should to give to that house all good satisfaction in take offence at it. Which submissive and inthis business that may be, and to omit nothing genuous behaviour of his, had given this satisthat can be justly or lawfully done in that, be-faction to their lordships, that, howsoever the half." This Answer was approved on by the whole house, and sent in writing to the Commons, by messengers of their own; with this instruction, That if they, of the Lower House, should require to have the Paper, then the messengers were authorized to deliver the same, which they did accordingly. May 31st.

Another Message from the commons, brought by sir Roger Owen and others; who, having first repeated the substance of their lordships Answer of yesterday,

words might sound, his intention was not as it hath been taken. And their lordships do assure the Commons, That if they had conceived the said bishop's words to have been spoken or meant to have cast any aspersion of sedition, or undutifuluess unto their house, (as it seems, report has carried it to them) their lordships would forthwith have proceeded to the censuring and punishing thereof with all severity. Nevertheless, though their lordships have thought fit to signify their carefulness at this

time to give them contentment, for the better expediting his majesty's great business, and to

On this transaction Hume's observations are, "So little fixed at this time were the rules of parliament, that the commons complained to the peers of a speech made in the upper house by the bishop of Lincoln; which it be longed only to that house to censure, and which the other could not regularly be supposed to be acquainted with. These at least are the rules established since the parliament became a real seat of power, and scene of business. Neither the king must take notice of what passes in either house, nor either house of what passes in the other, till regularly informed of it. The

retain all good correspondence with them; yet their lordship are of opinion, That hereafter no member of their house ought to be called in question, when there is no other ground for it, but public and common fame."* commons, in their famous protestation 1671, fixed this rule with regard to the king, though at present they would not bind themselves by it. But as liberty was yet new, those maxims which guard and regulate it were unknown and unpractised."-Concerning the sufficiency of Common Fame as a ground for parliamentary proceedings, see the Debates in the House of Commons in 1626 concerning the duke of Buckingham: 2 Cobb. Parl. Hist. 52 et seq.

99. The Case of EDMUND PEACHAM, for Treason: 12 JAMES I.* A. D. 1615. [Croke Car. 125. Bacon's Works.]

THE Report of this Case is so extremely scanty, that it would not be inserted as a distinct article but for the important matters which arose out of the Case, and are here inserted after the Report; which is merely this: "Edmund Peacham was indicted of Treason for divers treasonable passages in a Sermon which was never preached, nor intended to be preached, but only set down in writings, and found in his study: he was tried and found guilty, but not executed.-Note, That many of the Judges were of opinion, that it was not Treason."

The following passages relating to this Case are extracted from Birch's edition of Bacon's Works, and are all taken from lord Hailes's Memorials, &c. and Rawley's Resuscitatio: INTERROGATORIES whereupon Peacham is to

be examined.

Questions in general.

1. Who procured you, moved you, or advised you, to put in writing these traiterous slanders which you have set down against his majesty's person and government, or any of them?

2. Who gave you any advertisement or intelligence touching those particulars which are contained in your writings; as touching the sale of the crown lands, the deceit of the king's officers, the greatness of the king's gifts, his keeping divided courts, and the rest; and who hath conferred with you, or discoursed with you, concerning those points?

3. Whom have you made privy and acquainted with the said writings, or any part of them? and who hath been your helpers or confederates therein ?

4. What use mean you to make of the said writings? was it by preaching them in sermon, or by publishing them in treatise? if in sermon, at what time, and in what place meant

* See Foster's Crown Law, p. 199, 200, and 1 Hawk, ch. 17, s. 32. Carth. 405. 4 Bl. Com. 80.

you to have preached them? if by treatise, to whom did you intend to dedicate, or exhibite, or deliver such treatise?

5. What was the reason, and to what end did you first set down in scattered papers, and after knit up, in form of a treatise or sermon, such a mass of treasonable slanders against the king, his posterity, and the whole state?

6. What moved you to write, the king might be striken with death on the sudden, or within eight days, as Ananias or Nabal; do you know of any conspiracy or danger to his person, or have you heard of any such attempt?

7. You have confessed that these things were applied to the king; and that, after the example of preachers and chronicles, kings infirmities are to be laid open: this sheweth plainly whom and in what manner. your use must be to publish them, shew to

8. What was the true time when you wrote the said writings, or any part of them? and what was the last time you looked upon them, or perused them before they were found or taken?

9. What moved you to make doubt whether the people will rise against the king for taxes and oppressions? Do you know, or have you heard, of any likelihood or purpose of any tumults or commotion?

10. What moved you to write, that getting of the crown-land again would cost blood, and bring men to say, This is the heir, let us kill him? Do you know, or have you heard of any conspiracy or danger to the prince, for doubt of calling back the crown land.

11. What moved you to prove, that all the king's officers ought to be put to the sword? Do you know, or have you heard if any petition is intended to be made against the king's council and officers, or any rising of people against them?

12. What moved you to say in your writing, that our king, before his coming to the kingdom, promised mercy and judgment, but we find neither? What promise do you mean of, and wherein hath the king broke the same promise?

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