ting the words themselves to have been treasonable - deeply treasonable they had no relation to any overt act; they pointed to no malicious, treasonable design; no stirring of rebellion-no violation of law; they had never been published; there had been no utterance of them; they were strictly private memoranda, which had never been read nor seen by any one but the writer; who alone knew of their existence, until discovered by the pursuivants. Whatever, then, might be thought of these words, they certainly lacked the essential element of treason utterance-action - or some manifest connection with a treasonable undertaking or design. Even the savage laws, rulings and usages of the sixteenth and seventeenth centuries required this construction. Such private, written words were, in point of fact, no more treasonable than a person's private thoughts and emotions. And to try Penry for treason on these indictments was, therefore, to violate the most obvious principle of common law and common sense. It was even worse than this: it was to disregard the spirit of the queen's express and solemn protestation while her subjects did not openly break her laws, "her majesty's meaning was, not to have any of them molested by any inquisition or examination

that

*Foster lays down the rule, that papers not published, while in the hands of the author, and not connected with some treasonable act or design, are not treasonable. - Crown Law, p. 198; Hale's Pleas, 1. 117; Croke's Reports, 1v. 125.

of their consciences in causes of religion;

for

the obnoxious words, ascribed to Penry, until uttered in some way by him, were really nothing more in law than his secret thoughts and reflections. Yet for penning these words, John Penry was arraigned at the queen's bench, May 21st, 1593, and tried and convicted as a traitor to his sovereign and her government.

But two other instances are known in English jurisprudence where unpublished words, disconnected with any overt acts, were taken as evidence of treason. In the reign of James I. a puritan minister in Somersetshire, the Rev. Edward, or Edmond Peacham, had made himself obnoxious to the government by his preaching. His study was suddenly broken open, and a manuscript sermon was found, in which James was sharply censured for his various extravagances, love of dogs,

* June 15, 1570, Elizabeth ordered the following declaration to be made in the Star Chamber:- "Whereas certain rumors are carried and spread abroad among sundry her majesty's subjects, that her majesty had caused, or will hereafter cause, inquisition and examination to be had of men's consciences in matters of religion; her majesty would have it known that such reports are utterly untrue, and grounded either of malice, or of some fear more than there is cause. *** Wherefore her majesty would have all her loving subjects to understand, that, as long as they shall openly continue in the observation of her laws, and shall not wilfully break them by their open actions, her majesty's meaning is, not to have any of them molested by any inquisition or examination of their consciences in causes of religion; but will accept and entreat them as her good and obedient subjects."Strype's Ann., vol. 1. pt. 11. pp. 371–72.

dances, banquets, costly dresses, etc.; and the frauds and oppressive acts of his government were condemned. The poor old man was dragged up to London, committed to the Tower, examined under torture, without extracting anything treason. able from him, and finally tried and condemned, August 7th, 1615, for treason, on this manuscript sermon, which had never been preached, and which there was no proof was ever intended to be preached. This was done to please the king, who employed Bacon to tamper with the judges and induce them to adopt his interpretation of the law. Coke did not readily yield to this proceeding, and absented himself from the bench on Peacham's trial; and other judges had so much doubt of the lawfulness of the decision, that Peacham's sentence was never executed on him. His sufferings, however, probably hurried him out of the world in a few months after his trial.*

*Croke's Reports, vol. iv. p. 125; Foster's Crown Law, p. 198. The fullest and best account of this extraordinary case of persecution, and perversion of law, may be found in Knight's Pictorial History of England, vol. 111. pp. 56-57. Royal 8vo. ed. 1847.

Francis Bacon was James' principal tool in this infamous business, of "feeling of the judges of the king's bench," separately, and committing them, one by one, without consultation with each other, and before the case was brought before them, to the views of James. Bacon prepared twelve interrogatories, which were put to Peacham "before torture, in torture, and after torture,” but without eliciting anything. Bacon seems to have entered heartily into this perversion of justice. See the correspondence and other particulars in Bacon's Works, vol. 111. pp. 258-271. 4to. ed. London, 1778. I have not readily found a word about this disreputable business in Spedding's edition of Bacon's Works.

The other case was that of the celebrated Algernon Sidney, tried for treason in November 1683. In this case, Judge Jeffreys ruled, that a private manuscript, said to have been found in Sidney's study never published, and the authorship not proved-only that the writing resembled Sidney's was good evidence of his treason plain treason within 25 Edward III." And when Sidney objected, that no overt act of treason had been proved on him, and asked, "Is writing an act?" Jeffreys replied: "Yes, it is agere scribere est agere!" To write is to commit an overt act. On this ruling Sidney was condemned and executed for treason. But parliament reversed this decision, and removed the attainder; but not in season to save the life of this distinguished patriot.*

But Penry's case - which is not alluded to in any of the Law Reports that I have examinedwas a harder case than either of the above, the rulings in which are pronounced by the best law authorities "unwarrantable"; for, the words ruled to be treasonable, in his case, were not only unpublished and strictly private, but were utterly disavowed as his own, and declared to be the expressions of other men, with whom he did not agree in opinion.

So far as appears, Penry made no defence at the

*Howell's State Trials, vol. IX., particularly p. 301. Ed. 1816; Hale's Pleas, vol. 1. p. 117; Croke and Foster, ut sup.

time of his trial—if trial it may be called. He might have felt that it was useless to contend with the Church and the Bench arrayed against him and determined on his conviction. The condition of an obnoxious prisoner arraigned for treason was, in those days, hopeless enough, at the best. He was not furnished with any knowledge of the indictment to which he was to plead until it was read to him, in Latin, at the bar, and even then, he was not allowed a copy of it; neither was he furnished with a list of witnesses, who were to appear against him; nor of the jurors, who were to try him. No counsel was allowed him in court, except on points of law, which he was required to specify on the spot, leaving it to the court to decide whether they were worth considering; but, friendless and alone, he was compelled to face hostile crown lawyers, and often equally hostile judges who were removable at the pleasure of the crown, and who were often as intent on the conviction of the prisoner as were the lawyers who managed the prosecution. All these difficulties were encountered by Penry, aggravated by the well known and long cherished desire of the government to procure his conviction and execution. So that it is not . strange that the prisoner at the bar should submit to his fate without an effort to move the court.

But the day following the trial, Penry addressed

*State Trials, Emlyn's Preface, vol. 1. p. xxxi. Ed. 1809. Also Algernon Sidney's Trial, State Trials, vol. IX.