Terminer give authority to enquire, de illicitis verborum propalationibus. Vide le stat. 5 R. 2, cap. 6, and 17 R. 2, cap. 8, concerning rumours, and in 3 Ed. 2, in the exchequer, Henry Bray spoke of John Foxlee baron of the exchequer it was resolved, that the judgment in an indictment upon the said statutes, when the words are spoken generally, without relation to a certain author, is, that the offender shall be fined and imprisoned, for this is implied and included in the said statutes, as an incident to the offence, although that it is not expressed. Also the party grieved may have an action de scandalo magnatum,' and recover his damages. Also the party grieved, and the king's attorney, if the offenders deny it, may exhibit a bill in the Star-chamber against the offender, in

which the king shall have a fine, and the party shall be imprisoned, and the court of Star-chamber may inflict corporal punishment, as to stand upon the pillory, and to have papers about his head.

And if the offenders confess it, then to proceed ore tenus upon their own confession; and for the publication of the said words, all the defendants were punished by all the presence, una voce nullo contradicente,' by fines and imprisonments; and Gooderick and Ingram were fined the most, for that Gooderick had no authority for the words concerning the Cinqueports, nor could Ingram find any author for to vouch, that he heard by persons unknown at Leghorn in foreign parts; and therefore it was taken as a fiction of his own.

98. Proceedings against Dr. RICHARD NEILE, Bishop of Lincoln, for Words spoken in the House of Lords: 12 JAMES, A. D. 1614.* [1 Cobb. Parl. Hist.

ON May 28, 1614, a Message from the House of Commons was sent up to the Lords, by sir Edw. Hobby and others, in these words:

That at such time as the knights, citizens, and burgesses of the Commons House of Parliament sent up to the Lords a Message, praying a Conference with their lordships about Impositions: they hoped that, neither out of the words nor matter of the Message, it had been possible to have framed any sinister or unworthy construction. That notwithstanding, by public and constant fame, they had heard, to their heart's grief, that one in this place and within these walls, namely, the lord bishop of Lincoln (Richard Neile), in order to dissuade the Lords from a Conference so desired, as aforesaid, did use words to the effect following, or the same words, viz. That the matter, 'whereof conference was by that house desired, is a noli me tangere; in conferring, also, that the taking the oaths of allegiance and supremacy is an impediment; so, as whoso

1259.]

had taken the said oaths might not enter, safely, into conference of the said matter. Affirming farther, That it did strike, not at a branch, but at the root of the prerogative of the imperial crown; and that he doubted 'lest in such a Conference, as was desired, 'there would, from some of the committees of that house, proceed some undutiful and seditious speeches, unfit for their lordships to hear, tending to a dangerous rent and distrac'tion of both houses, and to make an alienation between the king and his subjects.' That of such scandal their house is so sensible, that they have sent these messengers to signify their grief, and that they held the Lords so honourable, that they cannot but also take notice thereof. Wherefore, that house did desire that their lordships will join with them in some course to give them satisfaction for so great a wrong done to the Commons; which they have taken so to heart, that they have determined to forbear all parliament matter, until they may *The following story, printed in the account parliament?' The bishop of Durham readily of Waller the poet's Life, 1712, and repeated answered, God forbid, sir, but you should: by Harris in his Life of James 1, and also by you are the breath of our nostrils.' WhereHume in his History, and Johnson in his Life upon the king turned and said to the bishop of Waller, throws some light on this bishop's of Winchester, Well, my lord, what say you?" character."Waller frequented the Court of Sir,' replied the bishop, I have no skill to James 1, where he heard a very remarkable judge of parliamentary cases.' The king anconversation, which the writer of the Life pre-swered, No put-offs, my lord; answer me fixed to his Works, who seems to have been well presently. Then, Sir,' said he, I think it is informed of facts, though he may sometimes err lawful for you to take my brother Neale's moin chronology, has delivered as indubitably cer- ney; for he offers it.' Mr. Waller said, the tain: He found Dr. Andrews, bishop of Win- company was pleased with this answer, and the chester, and Dr. Neale, bishop of Durham, wit of it seemed to affect the king; for a cerstanding behind his majesty's chair; and there tain lord coming in soon after, his majesty happened something extraordinary, continues cried out, Oh, my lord, they say you lig with this writer, in the conversation those prelates my lady --.'No, Sir,' says his lordship in had with the king, on which Mr. Waller did confusion; but I like her company, because she often reflect. His majesty asked the bishops, has so much wit.' Why then,' says the king, My lords, cannot I take my subjects' money, do you not lig with my lord of Winchester when I want it, without all this formality of there?"

acquainted this house: "That though the commons did not take common and public Fame to be a sufficient ground or proof, by a legal and ordinary course of justice, in proceeding against any man; yet they held it enough to induce the lords of that house to take the matter into consideration. And albeit they did not set down the words, in particular; yet was the matter, as they conceive, sumciently laid down when in effect they said, “That the lord bishop of Lincoln, in this house to dissuade the lords from a Conference with them touch

receive Answer from the Lords; wherein they doubt not but their lordships will ceal nobly with them, and they desire it may be speedily." Sir Edward Hobby being asked by the lord chancellor, Whether he had in writing the Message so delivered, as aforesaid? Answered, He had not. The lords then returned Answer, "That they had taken notice of the Message, and will take the same into further consideration, as the weight thereof requireth: wherein they will have respect both to their honours and the honour of the other house; and will send them further Answer." After this, a shorting Impositions, termed the prerogative, Xc. a Memorandum is entered on the Journals, intimating, That before the Answer, above specified, was agreed on, the serjeant of the Lower House came to the gentleman usher of the Lords, to learn, Whether their lordships would send Answer to the Message on that day, or not? To which the gentleman usher, with the privity of the Lords, answered, as from himself, That he knew not.

noli me tangere; insinuating that the tak ing of the Oath of Supremacy and Allegiance did restrain a man from treating of that business: also he doubted but in the Conference would be used, or spoken, some undutiful and seditious words, not fit for their lordships to hear, or words to the like or worse effect. That now the Commons do desire the Lords, if these words were not spoken, so to signify it to the house; otherwise, if they were used, then they hope their lordships will do as they have promised. Lastly, from the Commons, he said further, That they knew not what other course they could have taken to bring this matter to examination, or otherwise have any undutiful speech which may be moved in either house, called in question."

After sir Roger Owen had delivered his Message, the lord chancellor asked him, If he had it in writing? To which he answered in the

hin, That the house would take his message into consideration, and send Answer, if they could, before they rise: otherwise, will let them know as much. Accordingly, the same day, the lords sent to acquaint the other house,

May 30. The Lord Chancellor moved the house to consider and resolve of an Answer to be sent to the Message or Complaint, which they lately received from the other house, touching the bishop of Lincoln. And, by or der, the archbishop of Canterbury produced a copy of one ready drawn, for that purpose, which being read, was to this effect: "That the Lords, having received from the Commons a Complaint against the bishop of Lincoln, have seriously entered into consideration of it, and do now return this Answer, That their lord-negative. The lord chancellor, then acquainted ships would take very tenderly that any unworthy aspersion should be laid on that body, which they so much respect; and with whom they desire to hold all good correspondence and agreement. But forasmuch as the Complaint seemeth to be grounded, not upon di-"That they had considered of their last Mesrect or certain proof, but only upon common public fame; their lordships do not think that Common Fame only is a sufficient ground, whereon they may proceed as in this cause is required. Nevertheless, their lordships are so respective of any thing that may concern that house, that when they shall be more certainly informed, in direct and express terms, what the words were wherein the ford bishop of Lin-pressing, with many tears, his sorrow that his coln is to be charged, and how the same are to words were so misconceived and strained furbe proved, they will proceed therein so effectu- ther than he ever intended them; and that his ally, according to honour and justice, as it speech should occasion so much trouble to shall thereby well appear how careful they are their lordships, or that the lower house should to give to that house all good satisfaction in take offence at it. Which submissive and inthis business that may be, and to omit nothing genuous behaviour of his, had given this satisthat can be justly or lawfully done in that be-faction to their lordships, that, howsoever the half." This Answer was approved on by the whole house, and sent in writing to the Commons, by messengers of their own; with this instruction, That if they, of the Lower House, should require to have the Paper, then the messengers were authorized to deliver the same, which they did accordingly.

May 31st. Another Message from the commons, brought by sir Roger Owen and others; who, having first repeated the substance of their lordships Answer of yesterday,

sage, and, in debating thereupon, the lord bishop of Lincoln had humbly intreated that he might be heard to explain himself; which being granted unto him, he had made a solemn protestation, on his salvation, that he did not speak any thing with any evil intention to the House of Commons, which he doth with all hearty duty and respect highly esteem. Ex

words might sound, his intention was not as it hath been taken. And their lordships do assure the Commons, That if they had conceived the said bishop's words to have been spoken or meant to have cast any aspersion of sedition, or undutifulness unto their house, (as it seems, report has carried it to them) their lordships would forthwith have proceeded to the censuring and punishing thereof with all severity. Nevertheless, though their lordships have thought fit to signify their carefulness at this

time to give them contentment, for the better expediting his majesty's great business, and to

are,

* On this transaction Hume's observations "So little fixed at this time were the rules of parliament, that the commons complained to the peers of a speech made in the upper house by the bishop of Lincoln; which it be longed only to that house to censure, and which the other could not regularly be supposed to be acquainted with. These at least are the rules established since the parliament became a real seat of power, and scene of business. Neither the king must take notice of what passes in either house, nor either house of what passes in the other, till regularly informed of it. The

you to have preached them? if by treatise, to whom did you intend to dedicate, or exhibite, or deliver such treatise?

99. The Case of EDMUND PEACHAM, for Treason: 12 JAMES I.* A. D. 1615. [Croke Car. 125. [Croke Car. 125. Bacon's Works.] THE Report of this Case is so extremely scanty, that it would not be inserted as a distinct article but for the important matters which arose out of the Case, and are here inserted after the Report; which is merely this: "Edmund Peacham was indicted of Treason for divers treasonable passages in a Sermon which was never preached, nor intended to be preached, but only set down in writings, and found in his study: he was tried and found guilty, but not executed.-Note, That many of the Judges were of opinion, that it was not Treason."

The following passages relating to this Case are extracted from Birch's edition of Bacon's Works, and are all taken from lord IIailes's Memorials, &c. and Rawley's Resuscitatio: INTERROGATORIES whereupon Peacham is to be examined.

Questions in general.

1. Who procured you, moved you, or advised you, to put in writing these traiterous slanders which you have set down against his majesty's person and government, or any of them?

2. Who gave you any advertisement or intelligence touching those particulars which are contained in your writings; as touching the sale of the crown lands, the deceit of the king's officers, the greatness of the king's gifts, his keeping divided courts, and the rest; and who hath conferred with you, or discoursed with you, concerning those points?

3. Whom have you made privy and acquainted with the said writings, or any part of them? and who hath been your helpers or confederates therein ?

4. What use mean you to make of the said writings? was it by preaching them in sermon, or by publishing them in treatise? if in sermon, at what time, and in what place meant

* See Foster's Crown. Law, p. 199, 200, and 1 Hawk. ch. 17, s. 32. Carth. 405. 4 Bl. Com. 80.

5. What was the reason, and to what end did you first set down in scattered papers, and after knit up, in form of a treatise or sermon, such a mass of treasonable slanders against the king, his posterity, and the whole state?

6. What moved you to write, the king might be striken with death on the sudden, or within eight days, as Ananias or Nabal; do you know of any conspiracy or danger to his person, or have you heard of any such attempt?

7. You have confessed that these things were applied to the king; and that, after the example of preachers and chronicles, kings infirmities are to be laid open: this sheweth plainly whom and in what manner. your use must be to publish them, shew to

8. What was the true time when you wrote the said writings, or any part of them? and what was the last time you looked upon thein, or perused them before they were found or taken?

9. What moved you to make doubt whether the people will rise against the king for taxes and oppressions? Do you know, or have you heard, of any likelihood or purpose of any tumults or commotion?

10. What moved you to write, that getting of the crown-land again would cost blood, and bring men to say, This is the heir, let us kill him? Do you know, or have you heard of any conspiracy or danger to the prince, for doubt of calling back the crown land.

11. What moved you to prove, that all the king's officers ought to be put to the sword? Do you know, or have you heard if any petition is intended to be made against the king's council and officers, or any rising of people against them?

12. What moved you to say in your writing, that our king, before his coming to the kingdom, promised mercy and judgment, but we find neither? What promise do you mean of, and wherein hath the king broke the same promise?

There follows in the hand-writing of secretary Winwood,

with justice Houghton; and Mr. Solicitor with justice Dodderidge. This done, I took my fellows aside, and advised that they should presently speak with the three judges, before I infusion; and that they should not in any case make any doubt to the judges, as if they mistrusted they would not deliver any opinion apart, but speak resolutely to them, and only make their coming to be, to know what time they would appoint to be attended with the papers. This sorted not amiss; for Mr. Solicitor came had found judge Dodderidge very ready to give to me this evening, and related to me that he opinion in secret; and fell upon the same reason which upon your majesty's first letter I had used to my lord Coke at the council-table; pressly by his oath, to give your majesty counwhich was, that every judge was bound exSel when he was called; and whether he should do it jointly or severally, that rested in your it. And though the ordinary course was to majesty's good pleasure, as you would require assemble them, yet there might intervene cases, wherein the other course was more convenient. Houghton, who is a soft man, seemed desirous The like answer made justice Crook. Justice first to confer; alledging 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.

"Upon these Interrogatories, Peacham this day was examined before torture, in torture, between torture, and after torture; notwith-could speak with my lord Coke, for doubt of standing, nothing could be drawn from him, he still persisting in his obstinate and insensible denials, and former answers. Raphe Winwood, Jul. Cæsar, Fr. Bacon, H. Mountague, Gervase Helwysse, Ran. Crewe, Henry Yelverton, Fr. Cottington. Jan. the 19th 1614." [O. S.] To the King, concerning Peacham's Cause. It may please your excellent majesty; It grievedh me exceedingly that your majesty should be so much troubled with this matter of Peacham, whose raging devil seemeth to be turned into a dumb devil. But although we are driven to make our way through questions, which I wish were otherwise, yet, I hope well, the end will be good. But then every man must put to his helping hand; for else I must say to your majesty, in this and the like cases, as St. Paul said to the centurion, when some of the mariners had an eye to the cock-boat, 'Except these stay in the ship ye cannot be safe.' I find in my lords great and worthy care of the business: and for my part, I hold my opinion and am strengthened in it by some records that I have found. God preserve your majesty. Your majesty's most humble and devoted subject and servant, FR. BACON. Jan. 21, 1614. [O. S.]

To the King, touching Peacham's Cause. It may please your excellent majesty; This day in the afternoon was read your majesty's letters of direction touching Peacham; which because it concerneth properly the duty of my place, I thought it fit for me to give your majesty both a speedyand a private account thereof; that your majesty, knowing things clearly how they pass, may have the true fruit of your own wisdom and clear-seeing judgment in governing the business.

First, for the regularity which your majesty, as a master in business of estate, doth prudently prescribe in examining and taking examinations, I subscribe to it; only I will say for myself, that I was not at this time the principal

examiner.

For the course your majesty directeth and commandeth for the feeling of the judges of the king's Bench, their several opinions, by distributing ourselves and enjoining secrecy; we did first find an encounter in the opinion of my lord Coke, who seemed to affirm, that such particular and, as he called it, auricular taking of opinions was not according to the custom of this realm; and seemed to divine, that his brethren would never do it. But when I replied, that it was our duty to pursue your ma jesty's directions, and it were not amiss for his lordship to leave his brethren to their own answers; it was so concluded: and his lordship did desire that I might confer with himself; and Mr. serjeant Montague was named to speak with justice Crook; Mr. serjeant Crew

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 prece dent 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. Your majesty's most humble and devoted subject and servant, FR. BACON, Jan. 27, 1614. [O. S.]

To the King, touching Peacham's 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 Peachain'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 gave it other word to him, the other, to receive his opinion

6

ad perimplendum nefandum proposituin suum, composuit et conscripsit quendam detestabi'lem et venenosum libellum, sive scriptum, in quo, inter alia proditoria, continetur, &c.' 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 'à domino rege retraherent, et ipsum dominum regem relinquerent, et guerram et insurrectionem contra eum levarent et facerent, &c.' 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 latter times. This I represented to him, being a thing he is well acquainted with, that he might perceive the platform of that was intended, without any mistaking or obscurity. But then I fell to the matter itself, to lock him in as much as I could, namely, That there be four means or manners, whereby the death of the king is compassed and imagined. The first by some particular fact or plot. The second, by disabling his title; as by affirming, that he is not lawful king; or that another ought to be king; or that he is an usurper; or a bastard; or the like. The third, by st bjecting his title to the

to myself, and in secret, according to any com- | ing armed with divers precedents, I thought to mission from your majesty. At the former set in with the best strength I could, and said time he fell upon the same allegation which he that before I descended to the record, I would had begun at the council-table; that judges break the case to him thus: that it was true we were not to give opinion by fractions, but en- were to proceed upon the ancient statute of tirely according to the vote whereupon they king Edward the 3rd, because other temporary should settle upon conference: and that this statutes were gone; and therefore it must be auricular taking of opinions, single and apart, said in the indictment, Imaginatus est et was new and dangerous; and other words compassavit mortem et finalem destructionem more vehement than I repeat. I replied in domini regis: then must the particular treacivil and plain, terms, that I wished his lord-sons follow in this manner, namely, et quod ship, 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 counsel, 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 quæ-pope; and thereby making him of an absolute rens, 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 sces, 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, com

king a conditional king. The fourth, by disabling his regiment, and making him appear to be incapable or indign to reign. These things I relate to your majesty in sum, as is fit: which, when I opened to my lord, I did insist a little more upon, with more efficacy and edge, and authority of law and record, than I can now express. Then I placed Peacham's treason within the last division, agreeable to divers precedents, whereof I had the records ready; and concluded, that your majesty's safety and life and authority was thus by law insconsed and quartered; and that it was in vain to fortify on three of the sides, and so leave you open on the fourth.

It is true, he heard me in a grave fashion more than accustomed, and took a pen and took notes of my divisions; and when he read the precedents and records, would say, this you mean falleth within your first, or your second, division. In the end I expressly demanded his opinion, as that whereto both he and I were enjoined. But he desired me to leave the precedents with him, that he might advise upon them. I told him the rest of my fellows would dispatch their part, and I should be behind