the cryer in the beginning charges the jury to
hear the evidence that should be given by the
king's serjeants and the attorney. The Attor-
ney in his speech said, that to compass the
king's death is the highest treason that can be,
and this appears by 25 Ed. 3, which is but a
declaration of the common law, where this is
named first and by the law of nations, if an
embassador compass and intend death to
the person of the king in whose land he is, he
may be condemned and executed for treason;
but if he commit any other treason than this,
it is otherwise: then he should be sent to his
own country. And in this case, though the
words are in the future tense, still it is treason
before the time or the act done. One
said, that if Henry 8th would not take back
queen Margaret as his wife, he should not

serjeants. 3. The king's advocate general. 4
The king's attorney general. 5. The king's so-
licitor general. 6. The king's serjeants. 7.
The king's counsel, with the queen's attorney
and solicitor. 8. Serjeants at law. 9. The
recorder of London. 10. Advocates of the
civil law. 11. Barristers. In the court of ex-
chequer two of the most experienced barristers,
called the post-man and the tub-man, (fron
the places in which they sit) have also a prece-
dence in motions."-But as to this matter, a
passage in Bulstrode seems to shew that for-
merly the king's Attorney had no pre-audience
for himself, but only in respect of the king's bu-
siness:

Bulstrode's Reports, part 3, page 32, Termino

Pascha, 13mo Jacobi primi.

Brownlow, Plaintiff, against Cox and Michil,
Defendants.

At the end of the report of this Case in the
court of King's Bench is the following note:
"Nota, That sir Francis Bacon, attorney, be- |
ing to move, a serjeant at law having a short mo-
tion, offered to move before him; at which he
was much moved, saying, That he marvelled
he would offer this to him.-Upon this Coke,
chief justice. No serjeant ought to remove
before the king's attorney, when he moves for
the king but for other motions any serjeant
at law is to move before him. And, when I
was the king's attorney, I never offered to move
before a serjeant, unless it was for the king."-
See also as to pre-audience, Burr. 57, and 2586.
* As to the liability to punishment of em-
bassadors commorant or resident in foreign na-
tions, see 1 Hale's Hist. P. C. 95 et seq.; Fos-
ter's 1st Discourse, 187, 188: Ward's Inquiry
into the Principles and History of the Law of
Nations in Europe, chap. 17. and East's chap-
ter of persons capable of committing crimes,
referred to in his Pleas of the Crown, chap. 2,

S. 4.

This without doubt should be Catharine. The case I suppose was that of Eliz. Barton, the holy maid or nun of Kent. Bacon states the words to be "die the death of a dog." (3 Birch's Bacon's Works, 65.) He cites the case

VOL. II.

and this was

be king, but should die as
held treason. So the duke of Buckingham
said, that if the king should arrest him for trea-
son, he would stab him and this was an
immediate treason. And one Stanley said
that if he knew that Perkin Warbeck was the
son of Edward 4th, he would take part with
him against E. 6, † and this was an immedi-
ate treason, notwithstanding the words are spo-
ken with the word if. And it seems that
these words are treason by the common
law.-Note, that upon the evidence it appear-
ed, that the defendant held that it was not law-
ful to murder the king, because it was not
lawful to murder any man, but he held that it
was lawful to kill the king being excommuni-
cate by the pope, for this he held lawful, and
so thought to escape the former question, Whe-
ther it were lawful to murder the king.-After
the Indictment had been fully proved, the de-
fendant was found guilty by the jury, and Coke
said that he and all his brethren were agreed that
this is treason, and he said that he agreed in all
that had been said by the Attorney, and said
moreover that by these words the defendant
gives not only power to the pope to dispose of the
king's realm, but he made the king to hold that
and his crown only at the will of the pope. And
the defendant said that it was lawful to kill the
king being excommunicate, and the king had
been long excommunicate by the pope, and
from thence he concludes that it was lawful to
kill the king at this time. And he cites some
books where it is said that the pope every Maun-
day Thursday excommunicates all Calvinists,
heretics, schismatics, and all those who have
withdrawn their obedience from the pope, and

in his charge against Talbot supra, 778. Carte,
vol. 3, p. 123, says, "the death of a villain." See
more of her in lord Herbert (2 Kenn. Compl.
Hist. 169, 174, 176.) 1 Cobb. Parl. Hist. 521.
She and her accomplices were attainted by a
special act of parliament, 25 H. 8, c. 12; and
lord Coke, P. C. 14, says they could not have
been attainted of treason within 25 E. 3.

|
*See his case, vol. 1, p. 287 of this col-
lection. The words are stated more fully in
p. 295 of that vol. The case is also in the
Year-Book 13 II, 8, 11, b. 12, a. from whence
it is cited in 1 Hale's Hist. P. C. 117. It is
scarcely necessary to mention here, that the
words about stabbing by no means constituted
the whole of the offence charged upon the
duke. For this and the motives of the prose-
cution of the duke, see his Case in the preced
ing volume. See also that admirable historian
Shakespear, in his play of Henry 8th.

This should doubtless be Henry 7th. The case apparently was that of sir William Stanley, Lord Chamberlain to Henry 7. See 1 Hale's H. P. C. 113. The words are stated somewhat differently in his case, which is given at p. 277 of vol. 1. of this collection.

f Concerning the treason of words, see the case of Williams infra, a. D. 1619; and the cases and other authorities there mentioned.

3 L

the king comes within these; ergo, he is excom- | land, but the king disdains to answer this. Bot municate. And Faux, who was condemned for the nobles and commons wrote a letter to the the Gunpowder Treason, said that it was law-pope, in which they write that they had read ful to kill the king being excommunicate. And his letter, in which were inaudita et admiranda, 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 his crown or antient possessions, nicated on the last Maunday Thursday as afore- but this is against the laws of England; and if 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 amAnd 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 defendant is, for some examples; 16 R. 2, cap. 5, says, 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 subject to the pope or to any other. another. The judgment upon a traitor is, that 40 E. 3, Roi. Parliament. Numb. 7. King John he shall be drawn to execution, forasmuch as be being forsaken of God and man, 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 them he hatched the treason: 4. one thousand marks a year. And afterwards Beheaded: 5. Dismembered. And in this judg E. 1. was cited to Rome to perform his homagement are included five punishments: 1. All his and to pay the thousand marks, which never were paid. And two questions were proposed in parliament: 1. Whether king John could subject the crown to the pope? 2. Whether he ought to be cited to appear at Rome before the pope? And the whole parliament answered that king John did not subject, and could not subject his crown to the pope: and if the pope cites him, they would defend him with their blood. 28 E. 1. Exchequer 12 Feb. Rot. 1200 The pope writes to the king to submit to him the controversy concerning the crown of Scot

goods are forfeited: 2. Life and limb: S. His honours: 4. His members cut off, which shews that his issue is disinherited with corruption of blood: 5. The dower of his wife is forfeited: 1. Because he is a traitor to God. 2. To the king who is God's vicegerent upon earth. 3. To the king and realm. 4. To the law; and 5, to his own allegiance. And Judgment was given against the defendant to be drawn and quartered, &c. by Coke, with the assent of the whole court.

101. Proceedings against JOHN 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, came into Scot- bishop of Argyle, the lords Fleming, Boyde, and land, in 1613; and making his residence for the Kilsyth, 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 his journey to England a little knights, he confessed his true name to be John before Easter. Where, giving out to some of Ogilvie, that he was born in the north of Scothis countrymen, that he 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, after 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 his oath, ning of June thereafter. Upon this familiarity, that he should declare nothing but truth in and other intelligence given him, he came to such things as he should be demanded; he anGlascow 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 his estate and life, or made some haunt and resort thither at sundry that might endanger these or any of them, he times, till 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 of October.

In his Examination, which was the next morning, before the archbishop of Glascow, the

oath was as good as no oath, seeing any questions that could be proposed would concern some of these; he was induced at last to give a simple oath, which he did upon his knees; and

jesty?-3. Whether the pope have power to depose kings, by him excommunicated; and in particular, whether he have power to depose the king his majesty ?-4. Whether it be no murder to slay his majesty, being so excommu

ther the pope have power to assoil subjects from the oath of their born and natural allegiance to his majesty ?"

Upon the 18th of Jan. the foresaid questions being read distinctly unto him, and be required to declare his opinion thereanent, answered as followeth :

rising up from the ground, said, I will neither lye nor equivocate, but what I say shall be truth; and what I am asked, if I find it impertinent for me to answer, I will say nothing, or declare plainly I will not tell.' Then being enquired of his coming into Scot-nicated and deposed by the pope ?-5. Wheland, the time and business he came to do, answered, his business was to save souls. Touching the time when he came into Scotland, answered in the June before: where he was apprehended to equivocate, notwithstanding of his protesation; for he meaned of his last-coming, and was asked concerning the first. But the time at that examination was not understood. Being enquired of the places where he had been received, denied to tell; and if he had said mass in any place, he answered, he would not say any thing that might work prejudice to himself or others' and because he had rofessed, that he would not lye, the reply he ommonly made to such question was, I wi not tell you.'

The lords finding him thus obstinate, returned bo to a chamber in the castle, which was pre- | red for him.

The 12th of December, he was presented at dinburgh, before the lords commissioners, apointed by his majesty's missive for his examiaation and trial: namely, The lord of Binning, secretary, the lord of Kilsyth, sir Gideon Murray, the thesaurer deputy, and sir William Oliphant, his majesty's attorney-general: to whom he answered in all that was proponed, as of before at Glascow. There the letters intercepted with him were presented, which he acknowledged to be his: yet being demanded touching certain particulars contained in them, he denied to give their lordships any satisfaction. So as their lordships perceiving nothing but a pertinacious refusing in him to answer to points most reasonable, and withal apprehending his stay at court in the last summer, to have been for some worse service than he could speed in, determined, according to the power given them, to extort by torments another confession; which being intimated to him, and he replying that he was ready to suffer what they pleased, it was thought fit to prove him with the easiest form of trial that could be used.

It pleased his majesty in this time, while he was remaining at Glascow, to send a commision to the archbishop of Glascow, the lore bishop of Argyle, the lord Fleming, sir George Elphingston, and James Hamilton provst of the city of Glascow, for trying the said Ogilvie..

"To the first, that he thought the pope of Rome judge to his majesty, and to have power over him in spiritualibus, if the king be a christian: and where it is asked, if that power will reach over his majesty in temporalibus, he says, he is not obliged to declare his opinion therein, except to him that is judge in controversies of religion, which he acknowledges to be the pope, or some one having authority from him.-To the second he answered, That the pope hath power to excommunicate bis majesty: and where it is said, that the king is not of the pope's church; he saith, that all who are baptized are under the pope's power.-To the third, where it is asked, if the pope have power to depose his majesty, being excommunicated; answered, that he will not declare his mind, except to him that is judge in controversies of religion.-To the fourth, whether it be lawful to slay his majesty, being excommunicated and deposed by the pope: answered ut supra.-To the fifth, whether the pope hath power to assoil subjects from their born and natural allegiance to his majesty? answered, ut supra."

In all these articles he was particularly reasoned with, by the archbishop of Glascow, Mr. Robert Boyde principal of the college, (a man of rare erudition) and Mr. Robert Scot, one of the ministers of the city; where it was also signified unto him, that it concerned him in no less than his life, what answer he should make; if he should stand obstinate in these he had given, he might know what favour was to be expected for his other crimes. Not the less ratifying all that formerly was said, he added this further," that he condemned the oaths of supremacy and allegiance proponed to be sworn in England," and would needs have the writer to insert those words, to all which he put his hand, subscribing thus, "JOHANNES OGILVEUS, Societatis Jesu."

These Answers being sent to his majesty, under the testification of the foresaid commisHopinion touching his 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 apmaintined by Bellarmine, Suarez and others pointed to be at Glascow, the last of February. of the 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 tenooulibus, if it be in ordine ad spiritualia,' not be accused for mass-saying, or any thing as Bllarmine affirmeth?-2. Whether the else that concerned his profession, but for the pop lave power to excommunicate kings, (espe- Answers that he had made to the demands procity such as are not of his church) as his ma-posed to him by his majesty's commissioners"

They declared also, that if he should upon better resolution recal those Answers, and apply himself to give his majesty satisfaction in other points, which of duty he was obliged unto, the said archbishop would use his credit with his highness, and the lords of the privy-council for

his safety. His answer was, "that he thanked his lordship, for the good will and kindness offered, but he was so little minded to recal any thing he had said, as when he came to the place he would make a commentary upon his answers."

The Arraignment of JOHN OGILVIE, Jesuit, on Tuesday the 28th of February, in the Town-house of Glascow, before James Hamilton, Provost of Glascow, Jaines Bell, Colin Campbell, and James Bradwood, Bailitis of the City, Justices appointed by special Commission for that Business, by the Lords of the Privy-Council.

THE foresaid Judges being assisted by the honourable lords there present:

John, archbishop of Glascow; James marquis of Hamilton; Robert, earl of Lothian; William, lord Sanquhor; John ford Fleming; Robert, lord Boyde'; And sir Walter Stewart, baily-deputy of the regality of Glascow.

or intend any ways to impugn, hurt, o impair the same; As also his majesty, with acice of the whole estates of this kingdom, in the arliament holden at Edinburgh, the 22d of May, anno 1584, ratified, approved, and perpe naliy confirmed, his majesty's royal power and autho rity over all estates, as well spiritual as temporal, On Tuesday the last of February, a little after within this realm; and statuted and ordined, eleven of the clock in the forenoon, the court that his highness, his heirs and successors by being set, Mr. William Hay, of Baro, commis-themselves and their counsellors, were, and sary of Glascow, deputed by special commission from sir William Oliphant of Newton, his majesty's Attorney General, produced the Indictment following; together with the citation used against those who were to pass upon the Jury, and the roll of their particular names, subscribed with his hand, according to the custom observed in those cases.

The INDICTMENT of John Ogilvie, Jesuit, after

And

all times coming should be, judges, compete to all persons lus highness's subjects, of wha soever estate, degree, function, or conditio, that ever they be of, spiritual or temporal, in all matters wherein they or any of the should be apprehended, summoned, or charge to answer unto such things as should be inquired of them by our said sovereign lord and his council; and that none of them who should be apprehended, called or summoned, to the the form of the law of Scotland. effect aforesaid, should presume or take in "JOHN OGILVIE, by your subscription, a hand to decline the judgment of his highness, priest of the late execrable order of Jesuits, you his heirs and successors, or their council in the are indicted and accused, That for as much as premises, under the pain of treason. God, the author of all righteous government, likewise, by the 48th act of king James 1, his having established kings and magistrates his parliament, and divers other parliaments therelieutenants upon earth, for repressing of vio-after, it is ordained that all the king's lieges live lence, oppression, and vice, and the promoting and be governed under the kings laws and of piety and justice, hath in his particular grace statutes, and under no laws of other countries and favour, blessed this country with a more and realms, under the pain of treason, and ancient, just and permanent descent of lawful other, particularly expressed in the acts beforekings than any other nation of the world, and mentioned, and other laws of this kingdom. extended our felicity beyond the happiness of Notwithstanding whereof, it is of truth and our ancestors, by the justice, wisdom and verity, that you having renounced your natural clemency of his majesty's prosperous reign; allegiance and duty to your native and righteous and hath not only rewarded his majesty's zeal king, and cast off all reverence, respect, and and righteousness with wealth and peace, but obedience to his sovereign authority and laws, also honoured and strengthened him with the and dedicated your mind and actions to tla accession of the most mighty and flourishing unlawful obedience of foreign powers, adverkingdoms of England, France, and Ireland.saries to his majesty; and resolving, so far as Which visible favours proceeding directly from in you lieth, to seduce his majesty's subjects God's most bountiful hand, moved the whole from the faith and allegiance due to his naestates of this kingdom assembled in the parlia-jesty, repaired to this country in the month of ment holden at Perth, the 9th of July, 1606, June last past, or thereabout. And by our to acknowledge his majesty's sovereign autho- conferences, inticements, auricular confessons, rity, princely power, royal prerogative, and pri- mass-sayings and other subtle and crafty mans, vilege of his crown over all estates, persons and endeavoured yourself not only to corrupt any causes whatsoever, within the kingdom: and of his majesty's lieges in religion; but so to all in one voice faithfully to promise, maintain, pervert them from their dutiful obedient due defend, obey and advance the life, safety, to his majesty, till you were discover and honour, dignity, sovereign authority and pre-apprehended by the archbishop of Glacow, rogative royal of his sacred majesty, and privileges of his crown: and to withstand all persons, powers, and estates, who should presume, press,

who, with divers his majesty's counsellos ad others his good subjects, used all christiar ad charitable means to bring you to the sense of

your heinous offences, and desire of amendment | But that it may be known that your treason thereof: but they losing all their well-intended proceeded of forethought of felony, and obstilabours, were (in respect of your perverse ab- nate resolution, you freely and unrequiredly did stinacy) commanded by his majesty to enter to add to your foresaid answers this damnable your examination, and the trial of your heinous conclusion, that you condemned the oaths of crimes and transgressions. And especially the supremacy and allegiance given to his majesty said archbishop of Glascow,, and many others by his subjects in his dominions: whereby it is of good rank and quality adjoined to him, by apparent, that your errand to this country, hath his majesty, for your examination, having upon been to infect his highness's subjects with the the 18th of January last, called you before poison of your pestilent and treasonable opinion them, to examine you upon some particular foresaid, to the subversion of religion, overthrow interrogatories, prescribed by his majesty to be of his majesty's authority and crown, and dedemanded of you; as directly concerning his struction of his most sacred person. And almajesty's most sacred person, life, crown, and beit the course of all his majesty's life and reign estate: And chiefly you being demanded by hath manifested how unwilling he hath ever them, whether the pope hath power to depose been to use the severity of his laws against kings, being excommunicated? and in particu- those who have said and heard mass, and otherlar, if he have power to depose the king's ma- wise contravened the acts of parliament made jesty, our sovereign, being excommunicated by against idolatrous papistry, and practisers therehim? You answered treasonably, that you would of within this kingdom, desiring rather to renot declare your mind, except to him that is claim them by instruction, from their errors, to judge in the controversies of religion, whom the knowledge and profession of the truth: and (by your answer made to the latter part of the when he found them obdurate, and of desperate first interrogatory, demanded of you that day) resolution, relieving the country of the dangeyou declared to be the pope, or any having rous progress of their courses, by their imprisonauthority from him; albeit by the acts of par- ment and banishment, whereof you bad such liament and laws of this realm, made in the experience in the persons of your own accomyears of God 1560 and 1567, it is statuted and plices, condemned for their manifest crimes, as ordained, that the bishop of Rome (called the night very probably have made you to have expope) shall have no jurisdiction nor authority pected the like, if any memory of your native within this realm, in any time coming: and duty and born allegiance had possessed your thereby not only declining treasonably his ma- mind: but you being altogether destitute therejesty's jurisdiction, allowing of the pope's juris- of, by the three last articles of your depositions diction, which is discharged by acts of parlia- above written, you have so plainly discovered, ment, as said is; but hath committed most that you professedly approve the means, and damnable and high-treason, in not acknow- wish the effect of the overthrow of his majesty's ledging that the pope hath no power to depose estate, the destruction of his highness's person, his majesty, who holding his crown and autho- and seduction of his native subjects from their rity absolutely, sovereignly, and immediately subjection and dutiful obedience: that thereby, of God, may not be deposed by any earthly and by every one of your foresaid answers, you person, power, or authority. And thereafter have committed most heinous, detestable, and you being demanded if it be lawful to slay his unpardonable treason, and deservedly incurred majesty, being excommunicated and deposed the most rigorous pains thereof to be executed by the pope? You answered “ut supra:" which upon your body, lands, and goods, with ali exwas, that you would not declare your mind till tremity, to the terror of others." you were before the pope, or others having authority from him; thereby not only declining treasonably his majesty's jurisdiction and authority royal, but by your not answering clearly, that it is altogether unlawful, damnable, and diabolical, once to think that it is lawful to slay his most sacred majesty, you have committed most heinous, pernicious, and unpardonable treason. And lastly, being demanded, if the pope had power to assoil his majesty's born subjects from their natural allegiance? You answered, "ut supra:" and thereby both declined treasonably his highness's jurisdiction and authority-royal, in refusing to answer before his majesty's counsellors and commissioners aforesaid, in one matter merely concerning his royal power over his people, and their subjection to his majesty; and also committed wilful and detestable treason, in not acknowledging professedly and presently, that none on earth had power to assoil his majesty's subjects from their natural subjection and allegiance to him.

The Indictment being read, Mr. William Hay, substitute for his majesty's Attorney, opened the same, to the effect following:

Albeit the Indictment of itself be clear enough, and representeth sufficiently to my lords justices, their honourable lordships here assisting, and to yourself John Ogilvie, who stands there accused, the weight and gravity of the crime by you committed, yet I shall resume it to you in few words, that your answers may be the more distinct, and without mistaking.

You are not accused of saying mass, nor of seducing his majesty's subjects to a contrary religion, nor of any point touching you in conscience properly; but for declining his majesty's authority, against the laws and statutes of the land, and for maintaining treasonable opinions such as we of this realm have not heard by any avowed. The statutes mentioned in your Indictment, make it treason not to answer the king's majesty, or