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because I find not in myself a purpose of forbearing to do the like hereafter. I most humbly kiss your hand.
Your most faithful and affectionate servant, TOBIE MATTHEW. Brussels, this 21st of April, 1616.
SIR FRANCIS BACON TO THE JUDGES.*
It is the king's express pleasure, that because his Majesty's time would not serve to have conference with your lordship and his judges touching his cause of commendams at his last being in town, in regard of his Majesty's other most weighty occasions; and for that his Majesty holdeth it necessary, upon the report, which my lord of Winchester, who was present at the last argument by his Majesty's royal commandment, made to his Majesty, that his Majesty be first consulted with, ere there be any farther proceeding by argument by any of the judges or otherwise: Therefore, that the day appointed for the farther proceeding by argument of the judges in that case be put off till his Majesty's farther pleasure be known upon consulting him; and to that end, that your lordship forthwith signify his commandment to the rest of the judges; whereof your lordship may not fail. And so I leave your lordship to God's goodness.
Your loving friend to command,
This Thursday at afternoon, the 25th of April, 1616.
Questions legal for the Judges [in the case of the Earl and Countess of Somerset].
WHETHER the axe is to be carried before the prisoner, being in the case of felony ?
Whether, if the lady make any digression to clear his lordship, she is not by the lord steward to be interrupted and silenced?
Whether, if my lord of Somerset should break forth into any speech of taxing the king, he be not presently by the lord steward to be interrupted and silenced; and, if he persist, he be not to be told, that if he take that course, he is to be withdrawn, and evidence to be given in his absence? And whether that may be; and what else to be done?
From the collections of the late Robert Stephens, Esq. †The king's apprehension of being taxed by the earl of Somerset on his trial, though for what is not known, accounts in some measure for his Majesty's extreme uneasiness of mind till that trial was over, and for the management used by Sir Francis Bacon in particular, as appears from his letters, to prevail upon the earl to submit to be tried, and to keep him in temper during his trial, lest he, as the king expressed it in an apostyle on Sir Francis's letter of the 28th of April, 1616, upon the one part commit unpardonable errors, and I on the other seem to punish him in the spirit of revenge. See more on this subject in Mr. Mallett's Life of the Lord Chancellor Bacon, who closes his remarks with a reference to a letter of
Whether if there should be twelve votes to condemn, and twelve or thirteen to acquit, it be not a verdict for the king?
Questions of Convenience, whereupon his Majesty may confer with some of the Counsel.
WHETHER, if Somerset confess at any time before his trial, his Majesty shall stay trial in respect of farther examination concerning practice of treason, as the death of the late prince, the conveying into Spain of the now prince, or the like; for till he confess the less crime, there is [no] likelihood of confessing the greater?
Whether, if the trial upon that reason shall be put off, it shall be discharged privately by dissolving the commission, or discharging the summons? Or whether it shall not be done in open court, the peers being met, and the solemnity and celebrity preserved; and that with some declaration of the cause of putting off the farther proceeding?
Whether the days of her trial and his shall be immediate, as it is now appointed; or a day between, to see if, after condemnation, the lady will confess of this lord; which done, there is no doubt but he will confess of himself?
Whether his trial shall not be set first, and hers after, because then any conceit, which may be wrought by her clearing of him, may be prevented; and it may be he will be in the better temper, hoping of his own clearing, and of her respiting?
What shall be the days; for Thursday and Friday can hardly hold in respect of the summons; and it may be as well Friday and Saturday, or Monday and Tuesday, as London makes it already?
A particular remembrance for his Majesty. Ir were good, that after he is come into the Hall, so that he may perceive he must go to trial, and shall be retired into the place appointed, till the court call for him, then the lieutenant should tell him roundly, that if in his speeches he shall tax the king, that the justice of England is, that he shall be taken away, and the evidence shall go on without him; and then all the people will cry away with him; and then it shall not be in the king's will to save his life, the people will be so set on fire. Indorsed,
Memorial touching the course to be had in my lord of Somerset's arraignment.
Somerset to the king, printed in the Cabala, and written in a high style of expostulation, and showing, through the affected obscurity of some expressions, that there was an important secret in his keeping, of which his Majesty dreaded a discovery. The earl and his lady were released from their confinement in the Tower in January, 1621-2, the latter dying August 23, 1632, leaving one daughter Anne, then sixteen years of age, afterwards married to William lord Russel, afterwards earl, and at last duke of Bedford. The earl of Somerset survived his lady several years, and died in July, 1645, being interred on the 17th of that month in the church of St. Paul's, Covent-Garden.
The Heads of the Charge against Robert Earl of
Apostyle of the
Ye will doe well to remember lykewayes in your præamble, that insigne, that the only zeal to justice maketh me take this course. I have commandit you not to expatiate, nor digresse upon any other points, that maye not serve clearlie for probation or inducement of that point, quhairof he is accused.
FIRST it is meant, that Somerset shall not be charged with any thing by way of aggravation, otherwise than as conduceth to the proof of the impoisonment.
For the proofs themselves, they are distributed into four :
The first to prove the malice, which Somerset bore to Overbury, which was the motive and ground of the impoisonment.
shall give to the peers in general, they may conceive of what nature those secrets may be. Wherein I will take it for a thing notorious, that Overbury was a man, that always carried himself insolently, both towards the queen, and towards the late prince : that he was a man, that carried Somerset on in courses separate and opposite to the privy council : that he was a man of nature fit to be an incendiary of a state; full of bitterness and wildness of speech and project that he was thought also lately to govern Somerset, insomuch that in his own letters he vaunted, "that from him proceeded Somerset's fortune, credit, and understanding."
This course I mean to run in a kind of generality, putting the imputations rather upon Overbury than Somerset; and applying it, that such a nature was The second is to prove the pre-like to hatch dangerous secrets and practices. I parations unto the impoisonment, mean to show likewise what jargons there were and by plotting his imprisonment, cyphers between them, which are great badges of placing his keepers, stopping ac- secrets of estate, and used either by princes and their cess of friends, &c. ministers of state, or by such as practise against The third is the acts of the princes. That your Majesty was called Julius in impoisonments themselves. respect of your empire; the queen Agrippina, though Somerset now saith it was Livia, and that my lady of Suffolk was Agrippina; the bishop of Canterbury, Unctius; Northampton, Dominic; Suffolk, first Lerma, after Wolsey; and many others; so as it appears they made a play both of your court and kingdom; and that their imaginations wrought upon the greatest men and matters.
And the fourth is acts subsequent, which do vehemently argue him to be guilty of the impoison
For the first two heads, upon conference, whereunto I called serjeant Montagu and serjeant Crew, I have taken them two heads to myself; the third I have allotted to serjeant Montagu; and the fourth to serjeant Crew.
In the first of these, to my understanding, is the only tenderness: for on the one side, it is most necessary to lay a foundation, that the malice was a deep malice, mixed with fear, and not only matter of revenge upon his lordship's quarrel: for periculum periculo vincitur; and the malice must have a proportion to the effect of it, which was the impoisonment so that if this foundation be not laid, all the evidence is weakened.
On the other side, if I charge him, or could charge him, by way of aggravation, with matters tending to disloyalty or treason, then he is like to grow desperate. Therefore I shall now set down perspicuously what course I mean to hold, that your Majesty may be pleased to direct and correct it, preserving the strength of the evidence: and this I shall now do, but shortly and without ornament.
First, I shall read some passages of Overbury's letters, namely these: "Is this the fruit of nine years' love, common secrets, and common dangers ?" In another letter: "Do not drive me to extremity to do that, which you and I shall be sorry for." In another letter: "Can you forget him, between whom such secrets of all kinds have passed ?" &c.
Then will I produce Simcock, who deposeth from Weston's speech, that Somerset told Weston, that, "if ever Overbury came out of prison, one of them must die for it."
Then I will say what these secrets were. I mean not to enter into particulars, nor to charge him with disloyalty, because he stands to be tried for his life upon another crime. But yet by some taste, that I
Neither will I omit Somerset's breach of trust to your Majesty, in trusting Overbury with all the despatches, things, wherewith your council of estate itself was not many times privy or acquainted: and yet this man must be admitted to them, not cursorily, or by glimpses, but to have them by him, to copy them, to register them, to table them, &c. Apostyle of the king.
I shall also give in evidence, in this place, the slight account of that letter, which was brought to Somerset by Ashton, being found in the fields soon after the late prince's death, and was directed to Antwerp, containing these words, "that the first branch was cut from the tree, and that he should, ere long, send happier and joyfuller news."
Which is a matter I would not use, but that my lord Coke, who hath filled this part with many frivolous things, would think all lost, except he hear somewhat of this kind. But this it is to come to the leavings of a business.
And for the rest of that kind, as to speak of that particular, that Mrs. Turner did at Whitehall show to Franklin the man, who, as she said, poisoned the prince, which, he says, was a physician with a red beard.
Nothing to Somerset, and a loose conjecture.
No better than a gazette, passage of Gallo Belgicus. Nothing yet proved against Lowbell. Nothing to Somerset.
Declared by Franklin after condemnation. Nothing to Somerset.
Nothing to Somerset.
That there was a little picture of a young man in white wax, left by Mrs. Turner with Forman the conjurer, which my lord Coke doubted was the prince.
That the viceroy of the Indies at Goa reported to an English factor, that prince Henry came to an untimely death by a mistress of his.
That Somerset, with others, would have preferred Lowbell the apothecary to prince Charles.
That the countess laboured Forman and Gresham, the conjurers, to inforce the queen by witchcraft to favour the countess. That the countess told Franklin, that when the queen died, Somerset should have Somerset-house.
That Northampton said, the prince, if ever he came to reign, would prove a tyrant.
That Franklin was moved by the countess to go to the Palsgrave, and should be furnished
with money. The particular reasons, why I omit them, I have set in the margin; but the general is partly to do a kind of right to justice, and such a solemn trial, in not giving that in evidence, which touches not the delinquent, or is not of weight; and partly to observe your Majesty's direction, to give Somerset no just occasion of despair or flushes.
But I pray your Majesty to pardon me, that I have troubled your Majesty with repeating them, lest you should hear hereafter, that Mr. Attorney hath omitted divers material parts of the evidence. Indorsed,
Somerset's business and charge, with his Majesty's postiles.
this should be done, which I turned into days. Secondly, because the hope I had of effect by that mean, was rather of attempting him at his arraignment, than of confession before his arraignment. But I submit it to his Majesty's better judgment.
The person, by your first description, which was without name, I thought had been meant of Packer :† but now I perceive it is another, to me unknown, but as it seemeth, very fit. I doubt not but he came with sufficient warrant to Mr. Lieutenant to have access. In this I have no more to do, but to expect to hear from his Majesty how this worketh.
The letter from his Majesty to myself and the serjeants I have received, such as I wished; and I will speak with the commissioners, that he may, by the lieutenant, understand his Majesty's care of him, and the tokens herein of his Majesty's compassion towards him.
I ever had a purpose to make use of that circumstance, that Overbury, the person murdered, was his Majesty's prisoner in the Tower; which indeed is a strong pressure of his Majesty's justice. For Overbury is the first prisoner murdered in the Tower, since the murder of the young princes by Richard the third, the tyrant.
I would not trouble his Majesty with any points of preamble, nor of the evidence itself, more than that part nakedly, wherein was the tenderness, in which I am glad his Majesty, by his postils, which he returned to me, approveth my judgment.
Now I am warranted, I will not stick to say openly, I am commanded, not to exasperate, nor to aggravate the matter in question of the impoisonment with any other collateral charge of disloyalty, or otherwise; wherein, besides his Majesty's principal intention, there will be some use to save the former bruits of Spanish matters.
There is a direction given to Mr. Lieutenant by my lord chancellor and myself, that as yesterday Mr. Whiting the preacher, a discreet man, and one that was used to Helwisse, should preach before the lady,|| and teach her, and move her generally to a clear confession. That after the same preacher should speak as much to him at his going away in private and so proof to be made, whether this good mean, and the last night's thoughts, will produce any thing. And that this day the lieutenant should declare to her the time of her trial, and likewise of his trial, and persuade her, not only upon christian duty, but as good for them both, that she deal clearly touching him, whereof no use can be made, nor need to be made, for evidence, but much use may be made for their comfort.
It is thought, at the day of her trial the lady will confess the indictment; which if she do, no evidence ought to be given. But because it shall not be a dumb show, and for his Majesty's honour in so
London, and Vicar of East-Ham in Essex, prebendary of Ealdstreet in the church of St. Paul's, and chaplain to king James I. He attended Sir Gervase Helwisse, who had been lieutenant of the Tower, at his execution upon Tower-Hill, on Monday the 20th of November, 1615, for the murder of Sir Thomas Overbury.
Frances, countess of Somerset.
solemn an assembly, I purpose to make a declara- | justice, so it is a kind of corner-stone, whereupon tion of the proceedings of this great work of justice, justice and mercy may meet. from the beginning to the end, wherein, nevertheless, I will be careful no ways to prevent or discover the evidence of the next day.
In this my lord chancellor and I have likewise used a point of providence: for I did forecast, that if in that narrative, by the connexion of things, any thing should be spoken, that should show him guilty, she might break forth into passionate protestations for his clearing; which, though it may be justly made light of, yet it is better avoided. Therefore my lord chancellor and I have devised, that upon the entrance into that declaration she shall, in respect of her weakness, and not to add farther affliction, be withdrawn.
It is impossible, neither is it needful, for me, to express all the particulars of my care in this business. But I divide myself into all cogitations as far as I can foresee; being very glad to find, that his Majesty doth not only accept well of my care and advices, but that he applieth his directions so fitly, as guideth me from time to time.
I have received the commissions signed.
I am not forgetful of the goods and estate of Somerset, as far as is seasonable to inquire at this time. My lord Coke taketh upon him to answer for the jewels, being the chief part of his movable value and this, I think, is done with his Majesty's privity. But my lord Coke is a good man to answer for it.
God ever preserve and prosper you.
May 10, Friday at 7 of the clock
The Charge of the Attorney-General, Sir FRANCIS BACON, 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.*
Ir may please your Grace, my lord high steward of England,† and you my lords the peers,
You have heard the indictment against this lady well opened; and likewise the point in law, that might make some doubt, declared and solved; wherein certainly the policy of the law of England is much to be esteemed, which requireth and respecteth form in the indictment, and substance in the proof.
This scruple it may be hath moved this lady to plead not guilty, though for the proof I shall not need much more than her own confession, which she hath formerly made, free and voluntary, and therein given glory to God and justice. And certainly confession, as it is the strongest foundation of
She pleaded guilty, on which occasion the attorneygeneral spoke a charge somewhat different from this, printed in his works.
The proofs, which I shall read in the end for the ground of your verdict and sentence, will be very short; and, as much as may, serve to satisfy your honours and consciences for the conviction of this lady, without wasting of time in a case clear and confessed; or ripping up guiltiness against one, that hath prostrated herself by confession; or preventing or deflowering too much of the evidence. therefore the occasion itself doth admonish me to spend this day rather in declaration, than in evidence, giving God and the king the honour, and your lordships and the hearers the contentment, to set before you the proceeding of this excellent work of the king's justice, from the beginning to the end; and so to conclude with the reading the confessions and proofs.
My lords, this is now the second time ‡ within the space of thirteen years reign of our happy sovereign, that this high tribunal-seat of justice, ordained for the trial by peers, hath been opened and erected; and that, with a rare event, supplied and exercised by one and the same person; which is a great honour to you, my lord steward.
In all this mean time, the king hath reigned in his white robe, not sprinkled with any drop of blood of any of his nobles of this kingdom. Nay, such hath been the depths of his mercy, as even those noblemen's bloods, (against whom the proceeding was at Winchester,) Cobham and Grey, were attainted and corrupted, but not spilt or taken away; but that they remained rather spectacles of justice in their continual imprisonment, than monuments of justice in the memory of their suffering.
It is true, that the objects of his justice then and now were very differing. For then, it was the revenge of an offence against his own person and crown, and upon persons that were malcontents, and contraries to the state and government. But now, it is the revenge of the blood and death of a particular subject, and the cry of a prisoner. It is upon persons, that were highly in his favour; whereby his Majesty, to his great honour, hath showed to the world, as if it were written in a sunbeam, that he is truly the lieutenant of Him, with whom there is no respect of persons; that his affections royal are above his affections private; that his favours and nearness about him are not like popish sanctuaries to privilege malefactors; and that his being the best master of the world doth not let him from being the best king of the world. His people, on the other side, may say to themselves, "I will lie down in peace; for God and the king and the law protect me against great and small." It may be a discipline also to great men, especially such as are swoln in fortunes from small beginnings, that the king is as well able to level mountains, as to fill valleys, if such be their desert.
But to come to the present case; the great frame of justice, my lords, in this present action, hath a
+ Thomas Egerton, viscount Ellesmere, lord high chancellor, The first time was on the trials of the lords Cobham and Grey, in November, 1603.
vault, and it hath a stage: a vault, wherein these works of darkness were contrived; and a stage with steps, by which they were brought to light. And therefore I will bring this work of justice to the period of this day; and then go on with this day's work.
Sir Thomas Overbury was murdered by poison in the 15th of September, 1613, 11 Reg. This foul and cruel murder did, for a time, cry secretly in the ears of God: but God gave no answer to it otherwise than by that voice, which sometimes he useth, which is vox populi, the speech of the people. For there went then a murmur, that Overbury was poisoned; and yet this same submiss and soft voice of God, the speech of the vulgar people, was not without a counter-tenor or counter-blast of the devil, who is the common author both of murder and slander: for it was given out, that Overbury was dead of a foul disease, and his body, which they had made a corpus Judaicum with their poisons, so as it had no whole part, must be said to be leprosed with vice, and so his name poisoned as well as his body. For as to dissoluteness, I never heard the gentleman noted with it: his faults were insolency, and turbulency, and the like of that kind: the other part of the soul, not the voluptuous.
Meantime, there was some industry used, of which I will not now speak, to lull asleep those, that were the revengers of blood; the father and the brother of the murdered. And in these terms things stood by the space almost of two years: during which time, God so blinded the two great procurers, and dazzled them with their own greatness, and bind and nail fast the actors and instruments, with security upon their protection, as neither the one looked about them, nor the other stirred or fled, nor were conveyed away; but remained here still, as under a privy arrest of God's judgments; insomuch as Franklin, that should have been sent over to the Palsgrave with good store of money, was, by God's providence, and the accident of a marriage of his, diverted and stayed.
But about the beginning of the progress last summer, God's judgments began to come out of their depths and as the revealing of murders is commonly such, as a man may say, a Domino hoc factum est; it is God's work, and it is marvellous in our eyes; so in this particular it was most admirable; for it came forth by a compliment and matter of courtesy.
My lord of Shrewsbury, that is now with God, recommended to a counsellor of state, of especial trust by his place, the late lieutenant Helwisse,† only for acquaintance as an honest worthy gentleman; and desired him to know him, and to be acquainted with him. That counsellor answered him civilly, that my lord did him a favour; and that he * Gilbert, earl of Shrewsbury, knight of the garter, who died May 8, 1616.
Sir Gervase Helwisse, appointed lieutenant of the Tower, upon the removal of Sir William Waad, on the 6th of May, 1613. [Reliquia Wottoniana, p. 412, 3d edit. 1672.] Mr. Chamberlain, in a MS. letter to Sir Dudley Carleton, dated at London, May 13, 1613, speaks of Sir Gervase's promotion in these terms: One Sir Gervase Helwisse of Lincolnshire, somewhat an unknown man, is put into the place [of Sir W.
should embrace it willingly; but he must let his lordship know, that there did lie a heavy imputation upon that gentleman, Helwisse; for that Sir Thomas Overbury, his prisoner, was thought to have come to a violent and untimely death. When this speech was reported back by my lord of Shrewsbury to Helwisse, perculit illico animum, he was stricken with it; and being a politic man, and of likelihood doubting, that the matter would break forth at one time or other, and that others might have the start of him, and thinking to make his own case by his own tale, resolved with himself, upon this occasion, to discover to my lord of Shrewsbury, and that counsellor, that there was an attempt, whereto he was privy, to have poisoned Overbury by the hands of his under-keeper, Weston; but that he checked it, and put it by, and dissuaded it, and related so much to him indeed but then he left it thus, that was but an attempt, or untimely birth, never executed; and, as if his own fault had been no more, but that he was honest in forbidding, but fearful of revealing and impeaching or accusing great persons: and so with this fine point thought to save himself.
But that great counsellor of state wisely considering, that by the lieutenant's own tale it could not be simply a permission or weakness; for that Weston was never displaced by the lieutenant, notwithstanding that attempt; and coupling the sequel by the beginning, thought it matter fit to be brought before his Majesty, by whose appointment Helwisse set down the like declaration in writing.
Upon this ground, the king playeth Solomon's part, Gloria Dei celare rem; et Gloria Regis investigare rem; and sets down certain papers of his own hand, which I might term to be claves justitiæ, keys of justice; and may serve for a precedent both for princes to imitate, and for a direction for judges to follow: and his Majesty carried the balance with a constant and steady hand, evenly and without prejudice, whether it were a true accusation of the one part, or a practice and factious device of the other: which writing, because I am not able to express according to the worth thereof, I will desire your lordship anon to hear read.
This excellent foundation of justice being laid by his Majesty's own hand, it was referred unto some counsellors to examine farther, who gained some degrees of light from Weston, but yet left it imperfect.
After it was referred to Sir Edward Coke, chief justice of the king's bench, as a person best practised in legal examinations, who took a great deal of indefatigable pains in it, without intermission, having, as I have heard him say, taken at least three hundred examinations in this business.
But these things were not done in a corner. I need not speak of them. It is true, that my lord Waad's] by the favour of the lord chamberlain [earl of Somerset] and his lady. The gentleman is of too mild and gentle a disposition for such an office. He is my old friend and acquaintance in France, and lately renewed in town, where he hath lived past a year, nor followed the court many a day." Sir Henry Wotton, in a letter of the fourteenth of May, 1613, [ubi supra, p. 13.] says, that Sir Gervase had been before one of the pensioners.