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man, seemed desirous first to confer; alleging that the other three judges had all served the crown before they were judges, but that he had not been much acquainted with business of this nature.
We purpose therefore forthwith, they shall be made acquainted with the papers; and if that could be done as suddenly as this was, I should make small doubt of their opinions: and howsoever I hope force of law and precedent will bind them to the truth: neither am I wholly out of hope, that my lord Coke himself, when I have in some dark manner put him in doubt that he shall be left alone, will not continue singular.
For Owen, I know not the reason why there should have been no mention made thereof in the last advertisement: for I must say for myself, that I have lost no moment of time in it, as my lord of Canterbury can bear me witness. For having received from my lord an additional of great importance; which was, that Owen of his own accord after examination should compare the case of your majesty, if your were excommunicate, to the case of a prisoner condemned at the bar; which additional was subscribed by one witness; but yet I perceived it was spoken aloud, and in the hearing of others; I presently sent down a copy thereof, which is now come up, attested with the hands of three more, lest there should have been any scruple of singularis testis; so as for this case I may say, omnia parata; and we expect but a direction from your majesty for the acquainting the judges severally; or the four judges of the king's bench, as your majesty shall think good.
I forget not, nor forslow not, your majesty's commandment touching recusants; of which, when it is ripe, I will give your majesty a true account, and what is possible to be done, and where the impediment is.
since Sir George Crook gives a more than ordinary character of him. Mem. That in Hilary term, 21 Jac. Sir Robert Houghton died at Serjeants Inn in Chancery Lane, being a most reverend prudent, learned, and temperate judge, and inferior to none of his time. Stephens.
Mr. Secretary bringeth bonam voluntatem, but he is not versed in these things: and sometimes urgeth the conclusion without the premises, and by haste hindereth. It is my lord treasurer, and the exchequer must help it, if it be holpen. I have heard more ways than one, of an offer of 20,000l. per annum, for farming the penalties of recusants, not including any offence capital or of præmunire; wherein I will presume to say, that my poor endeavours, since I was by your great and sole grace your attorney, have been no small spurs to make them feel your laws, and seek this redemption; wherein I must also say, my lord Coke hath done his part. And I do assure your majesty, I know it somewhat inwardly and groundedly, that by the courses we have taken they conform daily and in great numbers; and I would to God it were as well a conversion as a conformity: but if it should die by dispensation or dissimulation, then I fear that whereas your majesty hath now so many ill subjects poor and detected, you shall then have them rich and dissembled. And therefore I hold this offer very considerable, of so great an increase of revenue: if it can pass the fiery trial of religion and honour, which I wish all projects may pass. Thus, in as much as I have made to your majesty somewhat a naked and particular account of business, I hope your majesty will use it accordingly. God preserve your majesty.
Your Majesty's most humble
Jan. 27. 1614.
and devoted subject, and servant,
CXIII. To the KING, reporting the state of lord chancellor ELLESMERE's health.
It may please your excellent Majesty,
BECAUSE I know your majesty would be glad to hear how it is with my lord chancellor; and that it pleased him out of his ancient and great love to me, which many times in sickness appeareth most, to admit me to a great deal of speech with him this afternoon, which during these three days he had scarcely done to
any, I thought it might be pleasing to your majesty to certify you how I found him. I found him in bed, but his spirits fresh and good, speaking stoutly, and without being spent or weary; and both willing and beginning of himself to speak, but wholly of your majesty's business; wherein I cannot forget to relate this particular; that he wished, that his sentencing of O.S.* at the day appointed might be his last work, Mr. Olito conclude his services, and express his affection to- ver St. wards your majesty. I told him, I knew your majesty would be very desirous of his presence that day, so it might be without prejudice; but otherwise your majesty esteemed a servant more than a service, especially such a servant. Not to trouble your majesty, though good spirits in sickness be uncertain kalendars, yet I have very good comfort of him, and I hope by that day, etc.
Jan. 29, 1614.
CXIV. To the KING, touching Peacham's Rawley' business, &c.
It may please your excellent Majesty,
I RECEIVED this morning, by Mr. Murray, a message from your majesty, of some warrant and confidence that I should advertise your majesty of your business, wherein I had part: wherein I am first humbly to thank your majesty for your good acceptation of my endeavours and service, which I am not able to furnish with any other quality, save faith and diligence.
For Peacham's case, I have, since my last letter, been with my lord Coke twice; once before Mr. Secretary's going down to your majesty, and once since which was yesterday: at the former of which times I delivered him Peacham's Papers: and at this latter the precedents, which I had with care gathered and selected: for these degrees and order the business required. At the former I told him that he knew my errand, which stood upon two points; the one to inform him of the particular case of Peacham's treasons, for I never give it other word to him, the other, to receive his
opinion to myself, and in secret, according to my commission from your majesty.
At the former time he fell upon the same allegation which he had begun at the council-table; that judges were not to give opinion by fractions, but entirely according to the vote whereupon they should settle upon conference: and that this auricular taking of opinions, single and apart, was new and dangerous; and other words more vehement than I repeat.
I replied in civil and plain terms, that I wished his lordship, in my love to him, to think better of it; for that this, that his lordship was pleased to put into great words, seemed to me and my fellows, when we spake of it amongst ourselves, a reasonable and familiar matter, for a king to consult with his judges, either assembled or selected, or one by one. And then to give him a little out-let to save his first opinion, wherewith he is most commonly in love, I added, that judges sometimes might make a suit, to be spared for their opinion, till they had spoken with their brethren; but if the king, upon his own princely judgment, for reason of estate, should think it fit to have it otherwise, and should so demand it, there was no declining nay, that it touched upon a violation of their oath, which was to counsel the king, without distinction whether it were jointly or severally. Thereupon, I put him the case of the privy council, as if your majesty should be pleased to command any of them to deliver their opinion apart and in private; whether it were a good answer to deny it, otherwise than if it were propounded at the table. To this he said, that the cases were not alike, because this concerned life. To which I replied, that questions of estate might concern thousands of lives, and many things more precious than the life of a particular; as war, and peace, and the like.
To conclude, his lordship tanquam exitum quærens, desired me for the time to leave with him the papers, without pressing him to consent to deliver a private opinion till he had perused them. I said I would ; and the more willingly, because I thought his lordship, upon
due consideration of the papers, would find the case to be so clear a case of treason, as he would make no difficulty to deliver his opinion in private; and so I was persuaded of the rest of the judges of the king's bench, who likewise, as I partly understood, made no scruple to deliver their own opinion in private; whereunto he said, which I noted well, that his brethren were wise men, and that they might make a shew as if they would give an opinion, as was required; but the end would be, that it would come to this: they would say they doubted of it, and so pray advice with the rest. But to this I answered, that I was sorry to hear him say so much, lest, if it came so to pass, some that loved him not might make a construction, that that which he had foretold, he had wrought. Thus your majesty sees, that, as Solomon saith, Gressus nolentis tanquam in sepi spinarum, it catcheth upon every thing.
The latter meeting is yet of more importance; for then, coming armed with divers precedents, I thought to set in with the best strength I could, and said, that before I descended to the record, I would break the case to him thus; That it was true we were to proceed upon the ancient statute of king Edward the third, because other temporary statutes were gone ; and therefore it must be said in the indictment, Imaginatus est et compassavit mortem et finalem destructionem domini regis: then must the particular treasons follow in this manner, namely, Et quod ad perimplendum nefandum propositum suum, composuit et conscripsit quendam detestabilem et venenosum libellum, sive scriptum, in quo, inter alia proditoria, continetur, etc. And then the principal passages of treason, taken forth of the papers, are to be entered in hæc verba; and with a conclusion in the end, Ad intentionem quod ligeus populus et veri subditi domini regis cordialem suum amorem a domino rege retraherent, et ipsum diminum regem relinquerent, et guerram et insurrectionem contra eum levarent et facerent, etc. I have in this form followed the ancient stile of the indictments for brevity sake, though when we come to the business itself, we shall enlarge it according to the use of the later times.