guiltiness; but to use a question in the nature of a false interrogatory, to falsify that which is "res judicata," is intolerable. For that were to erect a court of commission of review at Tyburn, against the King's Bench at Westminster. And, besides, it is a thing vain and idle: for if they answer according to the judgment past, it adds no credit; or if it be contrary, it derogateth nothing: but yet it subjecteth the majesty of justice to popular and vulgar talk and opinion.

this in time; which was, that at the day of the| The questions that are to be asked ought to verdict given up by the jury, he also would needs tend to farther revealing of their own or others give his verdict, saying openly, that if he were of the jury, he would doubt what to do. Marry, he saith, he cannot tell well whether he spake this before the jury had given up the verdict, or after; wherein there is little gained. For whether H. I. were a pre-juror or a post-juror, the one was to prejudge the jury, the other as to taint them. Of the offence of these two gentlemen in general, your lordships must give me leave to say, that it is an offence greater and more dangerous than is conceived. I know well that, as we have no Spanish inquisitions, nor justice in a corner; so we have no gagging of men's mouths at their death: but that they may speak freely at the last hour; but then it must come from the free motion of the party, not by temptation of questions.

My lords, these are great and dangerous offences; for if we do not maintain justice, justice will not maintain us.

But now your lordships shall hear the examìnations themselves, upon which I shall have occasion to note some particular things, &c.

A CHARGE DELIVERED

BY SIR FRANCIS BACON, KNIGHT,

THE KING'S SOLICITOR-GENERAL,

AT THE

ARRAIGNMENT OF THE LORD SANQUHAR,

IN THE KING'S BENCH AT WESTMINSTER.

THE ARGUMENT.

The Lord Sanquhar, a Scotch nobleman, having, in private revenge, suborned Robert Carlile to murder John Turne, master of fence, thought, by his greatness, to have borne it out; but the king, respecting nothing so much as justice, would not suffer nobility to be a shelter for villany; but, according to law, on the 29th of June, 1612, the said Lord Sanquhar, having been arraigned and condemned, by the name of Robert Creighton, Esq., was, before Westminster-hall Gate, executed, where he died very penitent. At whose arraignment my Lord Bacon, then solicitor-general to King James, made this speech following:

In this cause of life and death, the jury's part is in effect discharged; for after a frank and formal confession, their labour is at an end: so that what hath been said by Mr. Attorney, or shall be said by myself, is rather convenient than necessary.

My Lord Sanquhar, your fault is great, and cannot be extenuated, and it need not be aggravated; and if it needed, you have made so full an anatomy of it out of your own feeling, as it cannot be matched by myself, or any man else, out of conceit; so as that part of aggravation I leave. Nay, more, this Christian and penitent course of yours draws me thus far, that I will

agree, in some sort extenuates it; for certainly, as even in extreme evils there are degrees; so this particular of your offence is such as, though it be foul spilling of blood, yet there are more foul: for if you had sought to take away a man's life for his vineyard, as Ahab did; or for envy, as Cain did; or to possess his bed, as David did ; surely the murder had been more odious.

Your temptation was revenge, which the more natural it is to man, the more have laws both divine and human sought to repress it; "Mihi vindicta." But in one thing you and I shall never agree, that generous spirits, you say, are hard to forgive: no, contrariwise, generous and magna

nimous minds are readiest to forgive; and it is a weakness and impotency of mind to be unable to forgive;

"Corpora magnanimo satis est prostrasse leoni."

But, howsoever, murders may arise from several motives, less or more odious, yet the law both of God and man involves them in one degree, and, therefore, you may read that in Joab's case, which was a murder upon revenge, and matcheth with your case; he, for a dear brother, and you for a dear part of your own body; yet there was a severe charge given, it should not be unpunished.

day's justice, had not God in his providence removed them.

But, now that I have given God the honour, let me give it likewise where it is next due, which is to the king our sovereign.

This murder was no sooner committed, and brought to his majesty's ears, but his just indignation, wherewith he first was moved, cast itself into a great deal of care and providence to have justice done. First came forth his proclamation, somewhat of a rare form, and devised, and in effect dictated by his majesty himself; and by that he did prosecute the offenders, as it were with the breath and blast of his mouth. Then did his majesty stretch forth his long arms, for kings have long arms when they will extend them, one of them to the sea, where he took hold of Grey shipped for Sweden, who gave the first light of testimony; the other arm to Scotland, and took hold of Carlile, ere he was warm in his house, and brought him the length of his kingdom under such safe watch and custody, as he could have no means to escape, no, nor to mischief himself, no, nor learn any lessons to stand mute; in which cases, perhaps, this day's justice might have received a stop. So that I may conclude his ma

And certainly the circumstance of time is heavy upon you: it is now five years since this unfortunate man Turner, be it upon accident, or be it upon despite, gave the provocation, which was the seed of your malice. All passions are suaged with time: love, hatred, grief; all fire itself burns out with time, if no new fuel be put to it. Therefore, for you to have been in the gall of bitterness so long, and to have been in a restless chase of this blood so many years, is a strange example; and I must tell you plainly, that I conceive you have sucked those affections of dwelling in majesty hath showed himself God's true lieutenant, lice, rather out of Italy and outlandish manners, where you have conversed, than out of any part of this island, England or Scotland.

But that which is fittest for me to spend time in, the matter being confessed, is to set forth and magnify to the hearers, the justice of this day; first of God, and then of the king.

My lord, you have friends and entertainments in foreign parts; it had been an easy thing for you to set Carlile, or some other bloodhound on work, when your person had been beyond the seas; and so this news might have come to you in a packet, and you might have looked on how the storm would pass: but God bereaved yo1 of this foresight, and closed you here under the hand of a king that, though abundant in clemency, yet is no less zealous of justice.

Again, when you came in at Lambeth, you might have persisted in the denial of the procurement of the fact; Carlile, a resolute man, might perhaps have cleared you, for they that are resolute in mischief, are commonly obstinate in concealing the procurers, and so nothing should have been against you but presumption. But then also, God, to take away all obstruction of justice, gave you the grace, which ought indeed to be more true comfort to you, than any device whereby you might have escaped, to make a clear and plain confession.

Other impediments there were, not a few, which might have been an interruption to this

and that he is no respecter of persons; but the English, Scottish, nobleman, fencer, are to him alike in respect of justice.

Nay, I must say farther, that his majesty hath had, in this, a kind of prophetical spirit; for what time Carlile and Grey, and you, my lord, yourself, were fled no man knew whither, to the four winds, the king ever spake in a confident and undertaking manner, that wheresoever the offenders were in Europe, he would produce them forth to justice; of which noble word God hath made him master.

Lastly, I will conclude towards you, my lord, that though your offence hath been great, yet, your confession hath been free, and your behaviour and speech full of discretion; and this shows, that though you could not resist the tempter, yet you bear a Christian and generous mind, answerable to the noble family of which you are descended. This I commend unto you, and to take it to be an assured token of God's mercy and favour, in respect whereof all worldly things are but trash; and so it is fit for you, as your state now is, to account them. And this is all I will say for the present.

[Note. The reader, for his fuller information in this story of the Lord Sanquhar, is desired to peruse the case in the ninth book of the Lord Coke's Reports; at the end of which the whole series of the murder and trial is exactly related.]

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.

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 matThe fourth point is, the degree of this man's ters, that have reference to religion; but merely offence, which is more presumptuous, than I have upon that law which was born with the kingdom, known any other to have fallen into in this kind, and was law even in superstitious times, when and hath a greater overflow of malice and treason. the pope was received. The compassing and And, fifthly, I will remove somewhat that may imagining of the king's death was treason. The seem to qualify and extenuate this man's offence; statute of 25 Edw. III., which was but deciarain that he hath not affirmed simply that it is law- tory, begins with this article as the capital of ful to kill the king, but conditionally; that, if the capitals in treason, and of all others the inos: king be excommunicated, it is lawful to kill him: 'odious, and the most perilous: and so the civil which maketh little difference either in law or peril. law saith, "Conjurationes omniuri proditionum VOL. II.-40

2 D

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the opinion as impious, than by way of dispute 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.

odiosissimæ et perniciosissimæ." Against hostile is rather to be spoken to by way of accusation of invasions and the adherence of subjects to enemies, 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.

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 | all cometh to one. What is there that may not 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."

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 sub- man, may give his lands and goods in spoil, or jects and private persons. For, touching princes, cause him to be slaughtered, as for the pope to let history be perused, what hath been the causes do it towards a king; and for a bishop to absolve of excommunication; and, namely, this tumour of the son from duty to the father, as for the pope to it, the deposing of kings; it hath not been for absolve the subject from his allegiance to his heresy and schism alone, but for collation and in- king. And this is not my inference, but the vestitures of bishoprics and benefices, intruding very affirmative of Pope Urban the Second, who, upon ecclesiastical possessions, violating of any in a brief to Godfrey, Bishop of Luca, hath these ecclesiastical person or liberty. Nay, generally very words, which Cardinal Baronius reciteth in they maintain it, that it may be for any sin: so his Annals, "Non illos homicidas arbitramur, that the difference wherein their doctors vary, qui adversus excommunicatos zelo Catholicæ that some hold that the pope hath his temporal matris ardentes eorum quoslibet trucidare contipower immediately, and others but "in ordine ad gerit," speaking generally of all excommunicaspirituale," is but a delusion and an abuse. For tions.

THE CHARGE

OF SIR FRANCIS BACON, KNIGHT,

HIS MAJESTY'S ATTORNEY-GENERAL,

AGAINST

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 to plead not guilty, though for the proof I shall lady well opened; and likewise the point in law, not need much more than her own confession. that might make some doubt, declared and solved; which she hath formerly made, free and volunwherein certainly the policy of the law of Eng-tary, and therein given glory to God and justice. land is much to be esteemed, which requireth and respecteth form in the indictment, and substance in the proof.

*She pleaded guilty, on which occasion the attorney-general spoke a charge somewhat different from this.

+ Thomas Egerton, Viscount Ellesmere, lord high chance

This scruple, it may be, hath moved this lady lor.