same question which, if the prisoner were brought up for judgment, would come before them judicially in the King's Bench,-(for Stafford being already attainted could have no other plea except the privileges of sanctuary),-the Chief Justice saw that a public and formal decision upon it would be equivalent to a prejudication of the case in the absence of the prisoner; and upon that ground prayed to be spared. If this be all therefore, it cannot be inferred from it that he would have objected to give an opinion privately to the King beforehand; which for anything that appears he may have actually done, and probably did. And this is the point in question. Suppose however that the case had been really in point: an example worthy of being followed and bringing in a new custom. The question as concerning the constitutional practice in the time of James I., is, had it been followed? From the silence of Coke, who was more likely to know than any man, I presume that it had not; and therefore that it was an exception, which if it proves anything with regard to the practice proves that the practice both before and after had been different, as I have no doubt would abundantly appear if the examinations and consultations preparatory to the more important state trials were searched. Indeed if Coke's own doctrine were admitted that no man ought to be sent to trial unless it were certain that he could not have any defence worth hearing-it would follow that the Judges ought always to have been consulted beforehand, and that no case ought to have been sent for trial which they had not certified to be "good and sufficient in law." To avoid the risk of sending up cases which they would consider bad and insufficient in law was certainly the professed, and I believe the real, object of these consultations in James's time. What could be more natural than that a King anxious to govern by law should consult the Judges of the King's Bench (being the highest authorities) to know what the law was?

How little scruple Coke had at this time to deliver an opinion upon a criminal case which was to come before him judicially (for Owen was to be tried before the King's Bench), we shall now see.

A LETTER TO THE KING OF ACCOUNT OF OWEN'S CAUSE, ETC. It may please your excellent Majesty,

Myself with the rest of your counsel learned conferred with my Lord Coke and the rest of the Judges of the King's Bench

1 Luders's Tracts on Various Subjects, etc., vol. i. pp. 147, 164.

2 < Gibson Papers,' vol. viii. f. 13. Fair copy.

only, being met at my Lord's chamber, concerning the business of Owen. For although it be true that your Majesty in your letter did mention that the same course might be held in the taking of opinions apart in this, which was prescribed and used in Peacham's cause, yet both my Lords of the Council and we amongst ourselves, holding it in a case so clear not needful, but rather that it would import a diffidence in us, and deprive us of the means to debate it with the Judges (if cause were) more strongly, (which is somewhat), we thought best rather to use this form.

The Judges desired us to leave the examinations and papers with them for some little time to consider (which is a thing they use); but I conceive there will be no manner of question made of it. My Lord Chief Justice, to show forwardness (as I interpret it), shewed us passages of Suarez and others whereby to prove that though your Majesty stood not excommunicate by particular sentence, yet by the general Bulls of Cœna Domini and others you were upon the matter excommunicate, and therefore that the treason was as de præsenti. But I that foresee that if that course should be held when it cometh to a public day, to disseminate to the vulgar an opinion that your Majesty's case is all one as if you were de facto particularly and expressly excommunicate, it would but increase the danger of your person with those that are desperate Papists; and that it is needless; commended my Lord's diligence, but withal put it by; and fell upon the other course (which is the true way), that is, that whosoever shall affirm in diem or sub conditione that your Majesty may be destroyed, is a traitor de præsenti, for that he maketh you but tenant for life at the will of another. And I put the Duke of Buckingham's case who said that if the King caused him to be arrested of treason he would stab him, and the case of the imposturess Elizabeth Barton, who said that if King Henry the 8th took not his wife again, Catherine dowager, he should be no longer King, and the like.

It may be these particulars are not worth the relating. But because I find nothing in the world so important to your service as to have you throughly informed (the ability of your direction considered) it maketh me thus to do; most humbly praying your Majesty to admonish me if I be over troublesome.

For Peacham, the rest of my fellows are ready to make their

report to your Majesty at such time and in such manner as your Majesty shall require it. Myself yesterday took my Lord Coke aside after the rest were gone, and told him all the rest were ready, and I was now to require his Lordship's opinion according to my commission. He said I should have it, and repeated that twice or thrice, as thinking he had gone too far in that kind of negative (to deliver any opinion apart) before; and said he would tell it me within a very short time though he were not that instant ready. I have tossed this business in omnes partes, whereof I will give your Majesty knowledge when time serveth. preserve your Majesty.

11 Febr. 1614.

Your Majesty's most humble

God

and devoted subject and servant.

A few days after, Coke delivered his opinion on Peacham's case in writing. What the terms were, we do not know. But we know that the conditions under which the opinion was obtained did not interfere with its liberty, for it amounted in effect to a denial of one of Bacon's cardinal positions. To make Peacham's offence treason, it was necessary to hold that one of the means by which "the King's death is compassed or imagined" is the "disabling of his regiment, and making him appear to be incapable or indign to reign." And the opinion which Coke then delivered, as we learn from Bacon himself in another place, "amounted in effect to this-that no words of scandal or defamation, importing that the King was utterly unworthy to govern, were treason, except they disabled his title." With modern ideas, it is not easy to see the value of the distinction; because words only- that is, the mere expression of an opinion-seem to us insufficient in either case to make treason. With the ideas of Bacon's time, it must have been equally difficult, because words tending to excite popular disaffection to the person and government of the King were quite as dangerous to the Crown as words disabling his title. Nevertheless as most of the former treasons had been connected with the claims of some rival and pretender to the Crown, it may be easily supposed that there were few or no cases in the books in which the disabling of the title did not form part of the charge, and was not held to have been proved; and Coke's opinion would stand upon the precedents. However this may be, his answer, whether right or wrong, deprived the Government (in the court of popular opinion) of the support of the King's Bench, and brought on the danger which Bacon apprehended when he said to the King "except

these stay in the ship, ye cannot be safe." To proceed no further with the case under that disadvantage would probably have been his advice, if it had not proceeded so far already. But after the King had pressed it on so eagerly and allowed it to take so much wind (for the general result of all the examinations and consultations was well enough known abroad1), it was as dangerous to stop as to go on. To drop the prosecution at this point would certainly have been a great encouragement to the disaffected party, for it would have immediately gone abroad that people might indulge themselves in the composition of libels against the State without any risk. What to advise, Bacon (as I gather from the terms of the following letter, in which he forwarded Coke's answer to the King) could not at the moment quite make up his mind.

TO THE KING'S MOST EXCELLENT MAJESTY.?

It may please your excellent Majesty,

I

I send your Majesty inclosed my lord Cooke's answers. will not call them rescripts, much less oracles. They are of his own hand, and offered to me as they are in writing, not required by me to have them set down in writing, though I am glad of it for mine own discharge. I thought it my duty, as soon as I received them, instantly to send them to your Majesty; and forbear for the present to speak furder of them. I for my part (though this Muscovia weather be a little too hard for my constitution) was ready to have waited upon your Majesty this day, all respects set aside; but my L. Treasurer, in respect of the season and much other business, was willing to save me.

I will only conclude touching these papers, with a text divided. I cannot say, Oportet isthæc fieri; but I may say, Finis autem nondum. God preserve your Majesty.

Your Majesty's most humble

and devoted subject and servant,
FR. BACON.

I humbly pray your Majesty to keep the papers safe.

14 Feb. 1614.

at 12 of Clock.

1 "The King since his coming hath had the opinion of the Judges severally in Peacham's case, and it is said that most of them concur to find it treason. Yet the Lord Chief Justice is for the contrary." Chamberlain to Carleton, 20 Feb. 1614. 2 Balfour MSS.

The decision (whoever was responsible for it) was to go on, the opinion of Coke notwithstanding. On the 24th of February directions were given that Peacham should be sent into Somersetshire for trial' at the Western Assizes. But the next day (though "Sir Randall Crew, the King's Sergeant, and Sir Henry Yelverton, Solicitor, were ready to go to horse to have waited on him there "") the order was countermanded. In hope of procuring delay, he had made a new statement, implicating Sir John Sydenham, brother-inlaw of his neighbour and patron Mr. Paulet; which was thought to require investigation. Both Sydenham and Paulet were sent for, and the Bishop of Bath and Wells-his own Bishop, and the object of the libel which first brought him under the notice of the High Commission-was appointed to examine him again. "On Sunday," says Chamberlain,-Sunday was the 26th," he was at the Court confronted with Sir John Sydenham about certain speeches heretofore passed between them, and Mr. Paulet and some of his men are sent for upon the like occasion. But for ought I learn there is no likelihood of danger, no more than there was towards Sir Maurice Berkeley and a minister or two of that county, that were likewise called in question, and have reasonably acquitted themselves, the matter falling out to be of small moment."3 Bacon seems to have had no hope of good from this proceeding-believing the new story to be merely a device for delay, which could lead to nothing except the discovery that it was false. Neither does he seem to have had any part in the examination himself, or even to have been present at it; for in reporting to the King the result and the further measures which it had rendered necessary, it will be observed that he speaks only of what he has learned from the Bishop. The principal measure which he considered necessary was another examination, to be taken by himself and his fellows of the learned counsel alone (in which therefore he could have the management of it in his own hands) in order to remove confusions and ambiguities, and clear the indictment of matter depending upon confessions which might be retracted and disavowed as extorted by fear of pain; and with that view to make him believe that the trial was coming on immediately and that it would be his last opportunity of speaking. I do not suppose that since the unsuccessful experiment of the 19th of January, the "manacles" (whatever the nature of that torture may have been) had been either applied or threatened; for we hear nothing of them. But for Bacon's purpose in this examination it is clear that the prisoner must have been relieved from all apprehension of them. What 1 Gardiner, ii. p. 190. 2 Chamberlain to Carleton, 2 March, 1614. 3 Id. ibid.