intended against the person of the King, be it to dethrone or imprison him, or to oblige him to alter his measures of government, or to remove evil councillors from about him,-these risings all amount to levying war within the statute, whether attended with the pomp and circumstances of open war or not and every conspiracy to levy war for these purposes, though not treason within the clause of levying war, is yet an overt act within the other clause of compassing the King's death. For these purposes cannot be effected by numbers and open force, without manifest danger to his person.' Nor can

any reasonable doubt be suggested upon the facts ; the only question of the fact in the case is, what was the object and intention of the insurrection? If the object of the Earl of Essex and his companions was to further a private quarrel, or to take revenge upon particular persons, their offence was not treason; but that they intended to remove by force those whom they called their enemies, from those places, and that position at Court, which the Queen commanded them to hold, can hardly be doubted by any one who reads the trial; and if such was their purpose, they attempted forcibly to constrain and over-rule the will of their Sovereign, and were, therefore, in construction of law, guilty of high treason, notwithstanding that it might be far from their intention to do any injury to the person of the Queen.

It is probable, therefore, that upon these grounds, the offence of the Earls of Essex and Southampton might, even at the present day, be technically held to amount to high treason. But if any of our readers should have patience enough to study the extraordinary speech of Sir Edward Coke, they will find that he goes out of his way in order to assert and vindicate the high prerogative doctrine, that the laws of the realm, whether by statute or by common law,

*

were the King's laws; and consequently that a forcible resistance to a law, an insurrection against a statute,' as it is termed in some of the cases, was high treason as a rebellion against the King's authority, and an attempt to climb into the King's throne.' Such a doctrine and such language were quite consistent with a state of things in which neither the King nor the people understood the true principles of government; when Kings governed by their power, and the people knew no better principle of submission than passive obedience; when the peace of the realm was really the King's peace, and the public roads were really the King's high-ways. 'Under the Tudor Princes,' says Mr Luders, in his judicious remarks on Constructive Treasons, 'the law was peculiarly the King's own, and his subjects had very little benefit from it where he was concerned. The law was understood to be an instrument for enforcing royal authority, and maintaining the prerogative. This is very plainly expressed in those articles which the Lords of the Council presented to Henry VIII, against Cardinal Wolsey. They repeatedly conclude his guilt to arise from offending your Grace's laws, and your laws of this your realm; and seem to have been composed by men who had no idea of the law of the land, or its due administration. Yet they are signed by Sir Thomas More, Chancellor, and the two Chief Justices. From such principles it was not unreasonable to draw the conclusion which James the Second's Judges did, "That the laws were the King's laws; that the King might dispense with his laws, in case of necessity; and that the King was judge of that necessity." Fortunately these men were taught that their principles were bad, and their practice abomi-"

*Considerations on the Law of High Treason in the article of Levying War, p. 26.

nable. But while such principles prevailed, it was just and natural to impute to every opposition to the law, thus connected with the King's person, an imaginary rebellion against the King.'

In Bacon's account of the proceedings, he says, that at the Trial, there passed upon them twentyfive Peers, a greater number than had been called in any former precedent.' This statement is inaccurate; twenty-six Peers sat on the trials of the third Duke of Norfolk in the time of Henry VIII, of the Protector Somerset in the reign of Edward VI; and the same number were called in the case of the fourth Duke of Norfolk, in 1571, as appears by Camden's testimony, and all the reports of that trial. Some of the number, who appeared on the trial of the Earls of Essex and Southampton, might and ought to have been omitted; for instance, Lord Cobham, the avowed and cordial enemy of Essex, and Lord Grey, whose quarrel with Southampton was notorious, and was the subject of altercation on the trial. The nomination of these individuals as triers, was an act of flagrant partiality, and forcibly exemplifies the imperfect manner in which justice was at that period administered.

The conduct of Bacon, in taking so active a share in a proceeding which involved the life of his patron and benefactor, has often been the subject of severe animadversion, and has justly been considered as one of the many dark shades in the character of this 'greatest, brightest, meanest of mankind.' Bacon was bound to the Earl of Essex by the strongest obligations the Earl had been, from the commencement of his fortunes, his steady friend and munificent patron; he had been instant with the Queen, in season and out of season, in urging his promotion, and when disappointed of the office of Solicitor-General, had presented him with a considerable estate.

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Without intending wholly to excuse him, however, it may be questioned, whether the circumstances in which Bacon was placed with reference to this trial have been sufficiently considered; and whether his conduct has not been judged rather by our modern and improved notions of delicacy and propriety, than by the standard according to which the actions and feelings of men were regulated two centuries ago. Bacon was one of the Queen's Council,* distinction which, at that time, was not merely honorary, entitling the individual upon whom it was conferred to rank and precedence in courts of justice, but, was a place of actual service, in which the Sovereign was entitled to command the assistance of those who held his retainer. Bacon was, at the time of the trial, a retained servant of the Crown, though without patent or fee; and it may readily be conceived, that, in those days of prerogative, and with such a Sovereign as Elizabeth, feelings of delicacy towards the accused would have proved but a sorry excuse for disobedience to her express commands. It appears, indeed, that he had already incurred the displeasure of the Queen, by absenting himself on occasion of the public censure upon the Earl of Essex by the Lords of the Council, and had only partially recovered her favour by alleging illness as the cause of his absence. Some time after the trial,

* It does not distinctly appear at what time Bacon received his nomination as Queen's Counsel; and it is worthy of remark, that, in a memorandum for the order of the arraignment, in Sir Edward Coke's hand, at the State-Paper Office, Bacon's name does not appear in the list of Counsel to be retained. There is, however, a note from the Lords of the Council to him, written the day before the trial, and addressed to Mr Francis Bacon, one of her Majesty's Counsel learned.' He is also expressly stated by Camden to have been at this time a regio in rebus forensibus consilio.' He is said to have been the first King's Counsel under the degree of Serjeant.

Bacon, who says, he could not be ignorant, and ought to be sensible of the wrong he sustained in common speech, as if he had been false and unthankful to that noble, but unfortunate Earl, the Earl of Essex,' wrote an Apology for his conduct, in the form of a Letter to the Earl of Devonshire, an intimate friend of Essex. In this Apology, which is published amongst his Works, he declares, that whatsoever he did, in that action and proceeding, was done in his duty and service to the Queen and the State. For any action of mine,' says he, 'towards that nobleman, who had so well deserved of me, and had so well accepted of my deservings, whose fortune I cannot remember without much grief, there is nothing that passed me, in my lifetime, that cometh to my remembrance with more clearness and less check of conscience. For that which I performed at the bar in my public service, by the rules of duty I was bound to do it honestly and without prevarication; but for any putting myself into it, I protest before God, I never moved either the Queen, or any person living concerning my being used in the service, either of evidence or examination; but it was merely laid upon me with the rest of my fellows.' From the report of the trial, as above given, it does not appear that Bacon's conduct, in the course of the proceeding itself, was marked by acrimony or violence; on the contrary, he appears to have spoken in a tone of moderation to the Court, and of remonstrance to the prisoners, which will strike the reader more forcibly, when compared with the flippant invective and solemn pedantry of Sir Edward Coke.

The Declaration of the Treasons of the late Earl of Essex and his Complices,' above alluded to, was

* Bacon's Works, vol ii, p. 124.