bound, in conscience, to put your majesty in of Edward the Third, that he compassed and remembrance, whether sir John Sydenham imagined the king's death; the indictment then shall be detained upon this man's impeac!ing, is according to the law, and justly founded. in whom there is no truth. Notwithstanding But how is it verified? First, then, I gather this that further inquiry be made of this other conclusion, that since the indictment is made person, and that information and light be according to the prescription of law, the proTaken from Mr. Paulet and his servants, I hold cess is formal, the law is fulfilled, and the judge it, as things are, necessary. God preserve your and jury are only to bearken to the verification majesty. Your majesty's most humble and de- of the hypothesis, and whether the minor be voted, &c. I'r. Bacov. March 12, 1614. [0.5.] well proved or not. The EXAMINATION of Edmund Peacham at

That his writing of this libel is an overt act, the Tower, March 10, 1614.

the judges themselves do confess; that it was Being asked, when he was last at London, made fit for publication, the form of it bewrays and where he lodged when he was there ; hé the sell; that he kept not these papers in a sesaith he was last at London after the end of cret and safe façon, (manner) but in an open the last parliament, but where he lodged, he house and lidless cask, both himself and the kuoveth not.

messenger do confess; nay, bimself confesseth, Being asked, with what gentlemen, or others that he wrote them at the desire of another in London, when he was here last, he had con- man, to whom he should bave shown them ference and speech withal? he saith he had when they had been perfected, and who craved speech only with sir Maurice Berkeley, and that

an account for them, which though it be denied about the petitions only, which had been be- by the other party, worketh sutiiciently against fore sent up to him by the people of the coun

the deponer himself. Nay, he confesses, that try, touching the apparitors and the grievances in the end he meant to preach it; and thoughi, pifered the people by the court of the orticials.

for diminishing of his fault, he alledges, that he Being asked, tonching one Peacham, of his meant first to have taken all the bitterness out name, what knowledge he had of bim, and of it, that excuse is altogether absurd, for there whether he was not the person that did

is no other stuff in, or through it all but bitter

put into his mind divers of those traiterous pas- ness, which being taken out, it must be a quintsages which are both in bis loose and con

essence of an alchimy spirit without a body, or texted papers ? he saith this Peacham, of his popish accidents without a substance; and then nune, was a divine, a scholar, and a traveller; to what end would he have published such a and that he came to him some years past, the ghost, or shadow without substance, cui bono; certainty of the time he cannot remember, and and to what end did he so farce (stuff) it first lay at itis examinate's house a quarter of a

with venom, only to scrape it out again; but it year, and took so much upon hin, as he had had been hard making ihat serinon to have scarce the cominand of his own house or study; tasted well, that was once so spiced, quo semel but that he would be writing, sometimes in the est imbuta recens, &c. But yet this very excuse church, sometimes in the steeple, sometimes in is by himself overthrown again, confessing, this examinate's study; and now saitli farther,

that he mennt to retain soine of the most that those papers, as well loose as contexted, crafty malicious parts in it, as, &c. [So the which he had formerly confessed to be of bis manuscript.] own hand, might be of the writing of the said ther it may be veritied and proved, that, by thie

The only question that remains then is, whePeachai ; and saith confidently, that none of them are his own hand-writing or inditing; publishing of this sermon or rather libel of his but whatsoever is in his former examinations, he compassed or imagined the king's death : as well before bis majesty's learned council, as

which I prove he did by this reason; had he before my lord of Canterbury, and other the compiled a sermon upon any other ground, or lords and others of his majesty's privy-council

, stutted the bulk of it with any other matter, and was wholly out of fear, and to avoid torture, only powdered it here and there, with some and not otherwise,

passages of reprehension of the king; or had Being required to describe what manner of he never so bitterly railed against the king and man the said l'eacham that lay at his house upbraided him of any two or three, though monwas; he saith that he was tall of stature, and

strous vices, it might yet have been some way can make no other description of him, but excusable; or yet had he spued forth all the saith, as be taketh it, he dwelleth sometimes venom that is in this libel of his, in a railing at Honslow as a minister; for he hath seen his speech, either in drunkenness, or upon the oc letters of orders and licence under the hand of casion of any sudden passion or discontentment, Mr. D. Chatterton, sometime bishop of Lin- it might likewise have been excused in some coln. He denieth to set his hand to this exa

sort; but upon the one part, to heap up all the inination. Examinat per Fr. Bacon, Ger. injuries that the hearts of men, or malice of the HelwysSE, Ran. Crewe, H. Yelverton.

devil, can invent against the king, to disable The true State of the Question, whether Peach- tian, not to be a man, or a reasonable creature,

bim utterly, not to be a king, not to be a Chrisam's Case be Treason or not.

not worthy of breath here, nor salvation bereIn the hand-writing of king James. after; and, upon the other part, not to do this The Indictment is grounded upon the statute hastily or rashly, but after long premeditation,

Girst having made collections in scattered pa-, mous delinquent, without expressing what other pers, and then reduced it to a method, in a for- end he could probably bure, than all the proinal treatise, a text chosen for the purpose, a babilities, or rither intallible consequences upon prayer premited, applying all his wits to bring the other part, caring more for the safety of vut of inat text what he could, in malain par- such a monster, thn the preservation of a tem, against the king.

cron n, in all ages following, whicreupon depend This, I say, is a plain proof that he intended the lives of many millions; happy then are all to compass or imagine, by this means, the king's desperate and seditious knaves, but the fortune destruction. For, will ve look upon the per- of this crown is more than miserable. Quod son or quality of the man, it was the far like Deus arertut. liest means he could use to bring his wicked intention to pass ; his person an old, unable and l'pon the subject of consulting the Judges in unwieldy man; bis quality a minister, a preach. Crown (auses before band, lord Coke, 3 Inst. er; and that in so remote a part of the coun-19,30, thus expresses himself on a case in the try, as he had no more means of acceas to the Year Book, 1 H. 7, 26. “ Hussey, chief jusking's person than he had ability of body, or re- tice, besought king Henry the 7th, that he solution of spirit, to act such a desperate al would not desire to know their opinions beforetempe with his own hands upon him; and there- band for Huinfrey Statford, for they ihought fore, as every creature is ablest, in their own it should crue belvre them in the kinys bench element, either to defend themselves, or annov judicially, id then they would do that which their adversaries, as birds in the air, fishes in of right sy ought: and the king accepted the water, and so forth, what so ready and na- of it." And therefore the judges ought not to tural means bad he whereby to annoy the king deliver their opinions before-hand upon a case as by publishing such a seditious liljel? and so, put, and proofs urged of one side in absence under the specious pretext of conscience, to in- of the party accused; especially in cases of flame the hearts of the people against him. I high nature, and wbich deserve so fatal and Now, here is no illation nor inference mide extreme punishment. For how can they be upon the statute, it stands in puris naturalibus, indifferent, who have delivered their opinions but only a just interence and probation of the before-hand without hearing of the party, when guilty intention of this party: So the only a small addition, or substraction may alter the thing the judges can doubt of, is of the delin- case: And how doth it stand with iheir oath, quent's intention; and then the question will who are sworn, that they should well and lawbe, whether if these reasons be stronger to en- fully serve our lord the king and bis people in force the guiltiness of his intention, or his bare the otice of a justice and they should do denial to clear him, since nature teaches every equal law, and execution of right to all his subman to defend his lite as long as he may; andjects, &c."—This passage is cited in Mr. Luwhether, in case there were a doubt lurain, the Jers's Chapter “ On the Station and Churacier judges should not rather incline to that side of the Judges in the 10th and 17th centuries," wherein all probability lies: but if jurists will the whole of which is well worth perusal. needs trust better the buie negative of an inta

[ocr errors]


100. The Case of Join OWEX, otherwise COLLINS, for Treason :

B. R. Easter, 13 JAMES I. A. D. 1615.* [i Rolle's Rep. 185.) JOHN Owen otherwise Collins, of Godstowe supreine sentence of the pope, as the other is in the county of Oxford, was indicted, for that • the execution of the law. l'pon this Inhe intending the death of the king, falsely and dictinent of Treason, the detendant pleads Not maliciously said these words of the king, “The Guilty. Mount. (qu. Mountague?) king's Ser• king, being excommunicate by the pope, my jeant, opens the Indictment, and Bacon the . be lawfully deposed, and killed by any whai- ! king's Attorney then made a speech and pro

soever, which Killing is not murver: and be-duces the Evidence. And Note, ibat the Solici. ing demanded by H. White, how lie durst tor being there does not speak in the matter,

utier such a bloody and teariul conclusion, and it seems that it is not his business* for 6 answered, the matter is nt so heinous as you

suppose; for the king, being the less, is con * The preaudience of pleaders in courts of 'cluded by the pope, being the greater : and justice is stated by Blackstone, Comm. b. 3, ' it is all one as a malefactor, being convicted c. 3. in a note, l'rcaudience in the courts is

by a temporal judye', is delivered to execu- reckoned of so much consequence, that it may ' tion : so the king, heing convicted by the not be ami's to subjoin a short table of the

pope, may be lawfully slaughtered by any precedence which usually ołtains among the idintsoever: for this is the execution of the practisers. 1. The king's premier serjeant, (so

constituted luy special patent.) ?. The king's * Vide 1 Ilalc's H. P. C. 116. antient serjeant; or the eldest among the king's

[ocr errors]


the cryer in the beginning charges the jury to be king, but should die as

and this was bear the evidence that should be given by the held treason, So the duke of Buckingham king's serjeants and the attorney. The Attor said, that if the king should arrest him for ircavey in his speech said, that to compass the sou, he would stab bim * and this was an king's death is the highest treason that can be, immediate treason. And one Stanley said and this appears by 25 Ed. 3, which is but a that if he knew that Perkin Warbeck was the declaration of the common law, where this is son of Edward 4th, he would take part with named first : and by the law of nations, if an him against E. 6, † and this was an immediembassador * compass and intend death to ate treason, notwithstanding the words are spothe person of the king in whose land he is, he ken with the word “if.' And it seems that may be condemned and executed for treason; these words are treason by the common but if he commit any other treason than this, law.-Note, that upon the evidence it appearit is otherwise : then he should be sent to his ed, that the defendant held that it was not lawown country. And in this case, though the ful to murder thic king, because it was not words are in the future tense, still it is treason lawful to murder any man, but he held that it before the time or the act done. One

was lawful to kill the king being excoininunisaid, that if Henry 8th would not take back cate by the pope, for this he held lawful, and queen Margaret † as his wife, he should not so thought to escape the former question, Whe

ther it were lawful to murder the king:- After serjeants. 3. The king's advocate general. 4. the Indictment had been tully proved, the deThe king's attorney general. 5. The king's so fendant was found guilty by the jury, and Coke licitor general. 6. The king's serjeants. 7. said that be and all his brethren were agreed that The king's counsel, with the queen's attorneys this is treason, and he said that he agreed in all and solicitor. 8. Serjeants at law. 9. The that had been said by the Attorney, and said recorder of London. 10. Advocates of the moreover that by these words the defendant civil law. 11. Barristers. In the court vt ex gives not only power to the pope to dispose of the chequer two of the most exper:noed barristers, king's realm, but he made the king to hold that called the post-ian and the tub-man, (frons and his crown only at the will of the pope. And the places in which they sit) have also a preces the defendant said that it was lawful to kill the dence in motions."—But as to this matter, a king being excommunicate, and the king had passage in Bulstrode seems to shew that for been long excommunicate by the pope, and merly the king's Attorney had no pre-audience from thence he concludes that it was lawful to for himself, but only in respect of the king's bu- kill the king at this tiine. And he cites some siness :

books where it is said that the pope every MaunBulstrode's Reports, part 3, page 32, Termino day Thursday excommunicates all Calvinisis, Puscha, 13mo Jucobi primi.

heretics, schisınatics, and all those who have

withdrawn their obedience from the pope, and Brownlow, Plaintiff, against Cox and Michil, Defendants.

in his charge against Talbot supra, 778. Carte, At the end of the report of this Case in the vol.3, p. 129, says, “ the death of a villain.” See court of King's.Bench is the following note : more of her in lord Herbert (2 Kenn. Compl. “Nota, That sir Francis Bacon, attorney, be- Hist. 169, 174, 176.) 1 Cobb. Parl. Hist. 521. ing to move, a serjcant at law having a short mo She and her accomplices were attainted by a tion, offered to move before him ; at which he special act of parliament, 25 H. 8, c. 12 ; and was much moved, saying, That he marvelled lord Coke, P. C. 14, says they could not have he would offer this to him.-Upon this Coke, | been attainted of treason within 25 E. 3. chief justice. No serjeant ought to removo * See his case, vol. 1, p. 287 of this colbefore the king's attorney, when he moves for lection. The words are stated more fully in the king: but for other motions any serjeant p. 295 of that vol. The case is also in the at law is to move before him. And, when I Year-Book 13 II. 8, 11, b. 12, a. from whence was the king's attorney, I never offered to move it is cited in 1 Hale's Hist. P. C. 117. It is before a serjeant, unless it was for the king." scarcely necessary to mention here, that the See also as to pre-audience, Burr. 57, and 2586. words about stabbing by no means constituted

* As to the liability to punishment of em the whole of the offence charged upon the bassadors commorant or resident in foreign na

duke. For this and the motives of the prosetions, see 1 Hale's llist. P. C. 95 et seq. ; Fos-cution of the duke, see his Case in the precede. ter's 1st Discourse, 187, 188: Ward's Inquiry ing volume. See also that admirable historian into the Principles and Flistory of the Law of Shakespear, in his play of Henry Sth. Nations in Europe, chap. 17. and East's chap + This should doubtless be Henry 7th. ter of persons capable of committing crimes, The crise apparently was that of sir William referred to in bis Pleas of the Crown, chap. 2, Stanley, Lord Chamberlain to Henry 7. See S, 4.

1 Hale's H. P. C. 118. The words are stated + This without doubt should be Catha- somewhat differently in his case, which is given rine. The case I suppose was that of Eliz. at p. 277 of vol. 1. of this collection. Barton, the holy maid or nun of Kent. Bacon Concerning the treason of words, see states the words to he“ die the death of a dog." the case of Williams intra, A. D. 1619; aud (3 Birch's Bacon's Works, 65.) He cites the case the cases and other authorities there mentioned.

3 L

VOL. 11.

the king comes within these; ergo, he is excom- laod, but the king disdains to answer this. Bot municate. And Faus, who was condemned for the pobles and commons wrote a letter to the the Gunpowder Treason, said that it was law - pope, in which tpey write that they had read ful to kill the king being excommunicate. And his letter, in which were inaudita et udviranda, being asked, when the king was excommuni- but we say that the king ought not to be called cated), answered, That he bad been excommu- before you for bis crown or antient possessions, nicated on the last Maunday Thursday as afore- but this is against the laws of England; and á said. The law by which the defendant is to be the king be willing, still we will not suffer it, condemned is the old common law of England. even to death. And we will not suffer any arAnd this is in 25 E. 3, which is but a declara- bassador to be sent to you. Register. 61, b ad tion of the common law. And this law is de jura regia recurritur when any one impugns rived originally from the crown), and not from the common law : And it is now necessary to any other foreign power, of which I will repeat extirpate such locusts as the detendant is, for some examples; 10 R. ?, cap. 5, savs, That the there are twenty colleges which are popish for crown of England had not been subject to any Englishmen beyond sea in one country and nor is it sulject to the pope or to any other. another. The judgment upon a traitor is, that 40 E. 3, Rot. Parliament. Numb.7. King Johu be shall be drawn to execution, forasmuch as be being forsaken of God and inan, to have relief | is not worthy to walk upon the earth: 2. His from the pope did homage to the pope, and ac- privy members cut off : 3. His bowels burned, knowledged to hold his crown by (payment of) because in then he hatched the treason : 4. one thousand marks a vear. And afterwards Beheaded : 5. Dismembered. And in this judgE. 1. was cited to Rome to perform his homage ment are included five punishments: 1. All his and to pay the thousand marks, which never goods are forfeited : 2. Lite and limb: 3. His were paid. And two questions were proposed honours: 4. His meinbers cut off, which shews in parliament: 1. Whether king John could that his issue is disinherited with corruption of subject the crown to the pope? 2. Whether he blood : 5. The dower of his wife is forfeited : ought to be cited to appear at Rome before 1. Because he is a traitor to God. 2. To the the pope? And the whole parliament answered king who is God's vicegerent upon earth. S. that king John did not subject, and could not To the king and realm. 4. To the law; and subject his crown to the pope: and if the pope 5, 10 his own allegiance. And Judgment was cites him, they would defend him with their given against the defendant to be drawn and blood. 28 E. 1. Exchequer 12 Feb. Rot. 1200 quartered, &c. by Coke, with the assent of the The pope writes to the king to submit to him whole court. the controversy concerning the crown of Scot

[ocr errors][ocr errors]

101. Proceedings against Johy OGILVIE, for High Treason, on

Tuesday the 28th Day of February, at Glascow, in Scotland :

13 JAMES I. A. D. 1615. JOHN Ogilvie, alias Watson, caine into Scot- | bishop of Argyle, the lords Fleming, Boyde, and land, in 1613; and making bis residence for the hilsyth, the provost of the city of Glascow, sir most part of that winter in the north parts of Walter Steward, and sir George Elphingston, Scotland ; took bis journey to England a little knights, he confessed his true name to be Jolin before Easter. Where, giving out to some of Ogilvie, that he was born in the north of Scoshis countrymen, that be had a supplication for land, and had been forth of the country twentysome wrongs to present to his majesty, he at one years; that he lived at Gratz, in a college tended the court some two months; and falling of the Jesuits,' and was received in their order: in acquaintance with a gentleman of the West that he returned into Scotland by the comcountry, atter his pretended business was done, mand of his superior, and was to stay there or the occasion disappointed, he returned into until he was recalled, if no other impediment Scotland with the said gentleman in the begin- | should offer.' Being required to give bis oath, ving of June thereafter. l'pon this familiarity, that he should declare nothing but trutb in and other intelligence given him, he came to such things as he should be demanded; he aniGlascow in August following; and finding a swered,“ That he would take his oath, but with kinder receipt by certain persons in that city, some exceptions, namely, if he were demanded (who have since been justly condemned) he' any thing that touched bis estate and life, or made some haunt and resort thither at sundry that might endanger these or any of thein, he times, tiil at last he was detected, and by the would not answer; likewise if the same tended direction of the archbishop of Glascow, who at to the prejudice of others.' And when it was that time kept his residence within the city, ap- replied, that his exceptions being admitted, his prehended and committed to prison on the 4th oath was as good as no oath, seeing any quesof October.

tions that could be proposed would concern In bis Examination, which was the next some of these; he was induced at last to give a morning, before the archbishop of Glascow, the sinple oatls, which he did upon his knees; and


[ocr errors]

rising up from the ground, said, “ I will neither jesty !-3. Whether the pope have power to • lye nor equivocate, but what I say shall be depose kings, by him excommunicated; and in • truth; and what I am asked, if I find it imper- particular, whether he bare power to depose

tinent for me to answer, I will say nothing, the king his majesty ? -4. Whether it be no or declare plainly I will not tell.'

inurder to slay his majesty, being so excommuThen being enquired of his coming into Scot- nicated and deposed by the pope ?---5. Wheland, the time and business he came to do, an ther the pope bave power to assoal subjects from swered, his business was to save souls. Touch-the oath of their born and natural allegiance to ing the time when he came into Scotland, an his majesty ?" swered in the June before: where he was ap Upon the 18th of Jan. the foresaid que tious prehended to equivocate, notwithstanding of being read distinctly unto him, and be required his protesation ; for he meaned of his to declare his opinion thereanent, answered as ing, and was asked concerning the first. But followeth: the time at that examination was not under “ To the first, that he thought the pope stood. Being enquired of the places where he Rome judge to his majesty, and to have power had been received, denied to tell; and if he over him in spiritualibus, if the king be a had suid mass in any place, he answered,' he christian: and where it is asked, if that power woud xot say any thing that night work pre- will reach over his majesty in temporalibus, he

judicr to himself or others :' and because he says, he is not obliged to declare his opinion bad rofessed, that he would not lye, the reply therein, except to him that is judge in controhe pomonly made to such question was,. I versies of religion, which he acknowledges to be ul not tell you.'

the pope, or some one having authority from Che lords finding him thus obstinate, returned him.-To the second he answered, That the bn to a chainber in the castle, which was pre- pope bath power to excommunicate his mapred for him.

jesty: and where it is said, that the king is not The 12th of December, he was presented at of the pope's church; he saith, that all who are Idinburgh, before the lords commissioners, ap- baptized are under the pope's power. To the ointed by his majesty's missive for his exami- third, where it is asked, if the pope have power nation and trial: namely, The lord of Binning, to depose bis majesty, being excommunicated; secretary, the lord of Kilsyth, sir Gideon answered, that he will not declare his mind, exMurray, the thesaurer deputy, and sir William cept to him that is judge in controversies of reOliphant, his majesty's attorney-general: to ligion. To the fourth, whether it be lawful to whom he answered in all that was proponed, as slay his majesty, being excommunicated and of before at Glascow. There the letters inter-, deposed by the pope: answered ut supra. To cepted with him were presented, which he ac- the tifih, whether the pope hach

power to assoil knowledged to be his yet being demanded subjects from their born and vatural allegiance touching certain particulars contained in them, to his majesty? answered, ut supra." he denied to give their lordships any satisfaction. In all these articles he was particularly So as their lordships perceiving nothing but a reasoned with, by the archbishop of Glascow, pertinacious refusing in him to answer to points Mr. Robert Boyde principal of the college, (a most reasonable, and withal apprehending his man of rare erudition) and Mr. Robert Scot, stay at court in the last suinmer, to have been one of the ministers of the city; where it was for some worse service than he could speed in, also signiñed unto him, that it concerned him deterinined, according to the power given them, in no less than his life, what answer he should to extort by forments another confession; make; if be should stand obstinate in these he which being intimated to him, and he replving bad given, he might know what favour was to that he was ready to suffer what they pleased, be expected for his other crimes. Not the less it was

vas thouyht fit to prove him with the easiest ratifying all thai formerly was said, he added form of trial that could be used.

this further, “ that he condemned the oaths of It pleased his majesty in this time, while he supremacy and allegiance proponed to be sworn wis remaining at Glascow, to send a com in England,” and would needs have the writer mision to the archbishop of Glascow, the to insert those words, to all which he put his lort bishop of Argyle, the lord Fleming, hand, subscribing thus, “ JOHANNES OGILVEUS, sir jeorge Elphingston, and James Hamilton Societatis Jesu.' provst of the city of Glascow, for trying the These Answers being sent to his inajesty, said Ogilvie.

under the testification of the foresaid cominisHi opinion touching bis highness's royal sioners, his highness gave orders to the lords of powe, and the pope's claimed jurisdiction, the privy-council for his trial, which was apinaintined by Bellarmine, Suarez and others pointed to be at Glascow, the last of February. of tht sort: The questions were these.-1. Immediately after, the archbishop of Glascow “ Whther the pope be judge, and have power directed the provost and bailiffs of the city unto in spitualibus over his majesty, and whether him, to signify, that Tuesday following was apthat pwer will reach over his majesty, even in pointed for arraignment, and that “ he would temnonlibus, if it be« in ordine ad spiritualia,' not be accused for mass-saying, or any thing as Bllarmine affirmeth?—?. Whether the else that concerned his profession, but for the por lave power to excommunicate kings, (espe- Answers that he had made to the demands procia such as are not of his church) as his ma- posed 10 him by his majesty's commissioners”


« VorigeDoorgaan »