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THE CHARGE OF OWEN,
INDICTED OF HIGH TREASON, IN THE KING'S BENCH,
BY SIR FRANCIS BACON, KNIGHT,
HIS MAJESTY'S ATTORNEY-GENERAL.
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, I know not; but I take him as he was, and as he standeth charged. For, high treason is not written in ice; 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 hangby 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, I 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 deserveth 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 excommunicated, it is lawful to kill him: which maketh little difference either in law or peril. VOL. II.-40
For the king's clemency, I have said 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 this 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 Cæsar's rule: "Nil malo, quam eos esse similes sui, et me 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 the pope's supremacy, or other matters, that have reference to religion; but merely upon that law which was 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 deciaratory, 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, "Conjurationes omnium proditionum
odiosissimæ et perniciosissimæ." Against hostile | is rather to be spoken to by way of accusation of invasions and the adherence of subjects to ene- the opinion as impious, than by way of dispute
mies, 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 thunderbolts that strike upon the sudden, hardly to be avoided. "Major metus 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 number of 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 venemous sop; or as a legion of malign spirits, or a 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.
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 rasing 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, I 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 hea thenism, Mahometanism, and heresy, he shall find they do not attain to this height. Take the examples of damnable memory amongst the heathens. The proscriptions in Rome of Sylla, and afterwards of the Triumvirs, what were they? They were but of 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 some times 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, I 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 Amurath 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
For the third point, which is the doctrine; that upon an excommunication of the pope, with sen- The Anabaptists, it is true, come nearest. For tence of deposing, a king by any son of Adam they profess the pulling down of magistrates: and may be slaughtered; and, that it is justice, and they can chant the psalm, "To bind their kings no murder; and, that their subjects are absolved in chains, and their nobles in fetters of iron." of their allegiance, and the kings themselves This is the glory of the saints, much like the exposed to spoil and prey. I said before, that I temporal authority that the pope challengeth over would not argue the subtlety of the question: it 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 law-like mischief.
As for the defence which they do make, it doth aggravate the sin, and turneth it from a cruelty towards man to a 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 Saint Paul speaketh of, "Let us do evil that good may come thereof;" of whom the apostle saith definitively, "that their damnation is just."
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 For the destroying of government universally, ever could discern, but that, by infallible conseit is most evident, that it is not the case of Protes-quence, it is the case of all subjects and people, tant princes only, but of Catholic princes like- as well as of kings; for it is all one reason, that wise; as the king hath excellently set forth. Nay, a bishop, upon an excommunication of a private 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 tions.
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 Luca, hath these very words, which Cardinal Baronius reciteth in his Annals, "Non illos homicidas arbitramur, qui adversus excommunicatos zelo Catholicæ matris ardentes eorum quoslibet trucidare contigerit," speaking generally of all excommunica
OF SIR FRANCIS BACON, KNIGHT,
HIS MAJESTY'S ATTORNEY-GENERAL,
FRANCES, COUNTESS OF SOMERSET;
INTENDED TO HAVE BEEN SPOKEN BY HIM AT HER ARRAIGNMENT, ON FRIDAY, MAY 24, 1616, IN CASE SHE HAD PLEADED NOT GUILTY.*
IT MAY PLEASE YOUR GRACE, MY LORD HIGH STEWARD OF ENGLAND, AND YOU, MY LORDS, THE PEERS:
You have heard the indictment against this lady well opened; and likewise the point in law, that might make some doubt, declared and solved; wherein certainly the policy of the law of England is much to be esteemed, which requireth and respecteth form in the indictment, and substance in the proof.
to plead not guilty, though for the proof I shall not need much more than her own confession, which she hath formerly made, free and voluntary, and therein given glory to God and justice.
*She pleaded guilty, on which occasion the attorney-general spoke a charge somewhat different from this.
This scruple, it may be, hath moved this lady lor.
+ Thomas Egerton, Viscount Ellesmere, lord high chancel
And certainly confession, as it is the strongest foundation of justice, so it is a kind of cornerstone, whereupon justice and mercy may meet. The proofs, which I shall read in the end for the ground of your verdict and sentence, will be very short; and as much as may serve to satisfy your honours and consciences for the conviction of this lady, without wasting of time in a case clear and confessed; or ripping up guiltiness against one, that hath prostrated herself by confession; or preventing or deflowering too much of the evidence. And, therefore, the occasion itself doth admonish me to spend this day rather ⚫ in declaration than in evidence, giving God and the king the honour, and your lordships and the hearers the contentment, to set before you the proceeding of this excellent work of the king's justice, from the beginning to the end; and so to conclude with the reading the confessions and proofs.
My lords, this is now the second time* within the space of thirteen years reign of our happy sovereign, that this high tribunal-seat of justice, ordained for the trial by peers, hath been opened and erected; and that, with a rare event, supplied and exercised by one and the same person, which is a great honour to you, my lord steward.
In all this mean time the king hath reigned in his white robe, not sprinkled with any drop of blood of any of his nobles of this kingdom. Nay, such have been the depths of his mercy, as even those noblemen's bloods, against whom the proceeding was at Winchester, Cobham and Grey, were attainted and corrupted, but not spilt or taken away; but that they remained rather spectacles of justice in their continual imprisonment, than monuments of justice in the memory of their suffering.
It is true, that the objects of his justice then and now were very differing. For then, it was the revenge of an offence against his own person and crown, and upon persons that were malcontents, and contraries to the state and government. But now, it is the revenge of the blood and death of a particular subject, and the cry of a prisoner. It is upon persons that were highly in his favour; whereby his majesty, to his great honour, hath showed to the world, as if it were written in a sunbeam, that he is truly the lieutenant of Him with whom there is no respect of persons; that his affections royal are above his affections private; that his favours and nearness about him are not like popish sanctuaries to privilege malefactors: and that his being the best master of the world doth not let him from being the best king of the world. His people, on the other side, may say to themselves, "I will lie down in peace; for God and the king and the law protect me against great and small." It may be a discipline also to great men,
The first time was on the trials of the Lords Cobham and Grey,in November, 1603.
especially such as are swoln in fortunes from small beginnings, that the king is as well able to level mountains, as to fill valleys, if such be their desert.
But to come to the present case; the great frame of justice, my lords, in this present action, hath a vault, and it hath a stage: a vault, wherein these works of darkness were contrived; and a stage with steps, by which they were brought to light. And, therefore, I will bring this work of justice to the period of this day; and then go on with this day's work.
Sir Thomas Overbury was murdered by poison on the 15th of September, 1613, 11 Reg. This foul and cruel murder did, for a time, cry secretly in the ears of God; but God gave no answer to it, otherwise than by that voice, which sometimes he useth, which is "vox populi," the speech of the people. For there went then a murmur, that Overbury was poisoned and yet this same submiss and soft voice of God, the speech of the vulgar people, was not without a counter-tenor, or counter-blast of the devil, who is the common author both of murder and slander: for it was given out, that Overbury was dead of a foul disease; and his body, which they had made a "corpus Judaicum" with their poisons, so as it had no whole part, must be said to be leprosed with vice, and so his name poisoned as well as his body. For as to dissoluteness, I never heard the gentleman noted with it: his faults were insolency and turbulency, and the like of that kind: the other part of the soul, not the voluptuous.
Mean time, there was some industry used, of which I will not now speak, to lull asleep those that were the revengers of blood; the father and the brother of the murdered. And in these terms things stood by the space almost of two years, during which time God so blinded the two great procurers, and dazzled them with their own greatness, and did bind and nail fast the actors and instruments with security upon their protection, as neither the one looked about them, nor the other stirred or fled, nor were conveyed away: but remaineth here still, as under a privy arrest of God's judgments; insomuch as Franklin, that should have been sent over to the Palsgravo with good store of money, was, by God's pro vidence, and the accident of a marriage of his, diverted and stayed.
But about the beginning of the progress last summer, God's judgments began to come out of their depths: and as the revealing of murders is commonly such, as a man may say, "a Domino hoc factum est;" it is God's work, and it is marvellous in our eyes: so in this particular, it is most admirable; for it came forth by a compliment and matter of courtesy.
My Lord of Shrewsbury*, that is now with
* Gilbert, Earl of Shrewsbury, Knight of the Garter, who died May 8, 1616.
This excellent foundation of justice being laid by his majesty's own hand, it was referred unto some counsellors to examine farther, who gained some degrees of light from Weston, but yet left it imperfect.
After it was referred to Sir Edward Coke, chief justice of the King's Bench, as a person best practised in legal examinations, who took a great deal of indefatigable pains in it, without intermission, having, as I have heard him say, taken at least three hundred examinations in this business.
God, recommended to a counsellor of state, of, were a true accusation of the one part, or a practice especial trust by his place, the late Lieutenant and factious device of the other: which writing, Helwisse, only for acquaintance as an honest, because I am not able to express according to the worthy gentleman; and desired him to know him, worth thereof, I will desire your lordship anon to and to be acquainted with him. That counsellor hear read. answered him civilly, that my lord did him a favour; and that he should embrace it willingly; but he must let his lordship know, that there did lie a heavy imputation upon that gentleman, Helwisse; for that Sir Thomas Overbury, his prisoner, was thought to have come to a violent and untimely death. When this speech was reported back by my Lord of Shrewsbury to Helwisse,"perculit illico animum," he was stricken with it; and being a politic man, and of likelihood doubting that the matter would break forth at one time or other, and that others might have the start of him, and thinking to make his own case by his own tale, resolved with himself, upon this occasion, to discover to my Lord of Shrewsbury and that counsellor, that there was an attempt, whereto he was privy, to have poisoned Overbury by the hands of his under-keeper, Weston; but that he checked it, and put it by, and dissuaded it, and related so much to him indeed: but then he left it thus, that it was but an attempt, or untimely birth, never executed; and as if his own fault had been no more, but that he was honest in forbidding, but fearful of revealing and impeaching or accusing great persons; and so with this fine point thought to save himself.
But that great counsellor of state wisely considering, that by the lieutenant's own tale it could not be simply a permission or weakness; for that Weston was never displaced by the lieutenant, notwithstanding that attempt; and coupling the sequel by the beginning, thought it matter fit to be brought before his majesty, by whose appointment Helwisse set down the like declaration in writing.
Upon this ground, the king playeth Solomon's part, "Gloria Dei celare rem: et gloria regis investigare rem;" and sets down certain papers of his own hand, which I might term to be "claves justitiæ," keys of justice; and may serve for a precedent both for princes to imitate, and for a direction for judges to follow: and his majesty carried the balance with a constant and steady hand, evenly and without prejudice, whether it
Sir Gervase Helwisse, appointed Lieutenant of the Tower,
upon the removal of Sir William Waade on the 6th of May, 1613, ["Reliquiæ Wottoniana," p. 412, 3d edit. 1672.] Mr. Chamberlain, in a MS. letter to Sir Dudley Carleton, dated
at London, May 13, 1613, speaks of Sir Gervase's promotion in these terms. "One Sir Gervase Helwisse, of Lincolnshire, somewhat an unknown man, is put into the place [of Sir W. Waade's] by the favour of the lord chamberlain [Earl of Somerset] and his lady. The gentleman is of too mild and gen
tle a disposition for such an office. He is my old friend and acquaintance in France, and lately renewed in town, where he hath lived past a year, nor followed the court many a day." Sir Henry Wotton, in a letter of the 14th of May, 1613, ["ubi
supra," p. 23,] says, that Sir Gervase had been before one of the pensioners.
But these things were not done in a corner. I need not speak of them. It is true, that my lord chief justice, in the dawning and opening of the light, finding that the matter touched upon these great persons, very discreetly became suitor to the king to have greater persons than his own rank joined with him. Whereupon, your lordship, my Lord High Steward of England, to whom the king commonly resorteth "in arduis," and my lord steward of the king's house, and my Lord Zouch, were joined with him.
Neither wanted there, this while, practice to suppress testimony, to deface writings, to weaken the king's resolution, to slander the justice, and the like. Nay, when it came to the first solemn act of justice, which was the arraignment of Weston, he had his lesson to stand mute; which had arrested the wheel of justice. But this dumb devil, by the means of some discreet divines, and the potent charm of justice, together, was cast out. Neither did this poisonous adder stop his ear to those charms, but relented, and yielded to his trial.
Then follow the proceedings of justice against the other offenders, Turner, Helwisse, Franklin. But all these being but the organs and instruments of this fact, the actors, and not the authors, justice could not have been crowned without this last act against these great persons. Else Weston's censure or prediction might have been verified, when he said, he hoped the small flies should not be caught and the great escape. Wherein the king being in great straits, between the defacing of his honour and of his creature, hath, according as he useth to do, chosen the better part, reserving always mercy to himself.
The time also of this justice hath had its true motions. The time until this lady's deliverance was due unto honour, Christianity, and humanity, in respect of her great belly. The time since was due to another kind of deliverance too; which was, that some causes of estate, that were in the womb, might likewise be brought forth, not for matter of justice, but for reason of state. Like