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tur:sing the pike and point of his imputations Weston did poison Overbury or no? A contraprincipally upon my lord chief justice of Eny- victory directly : Weston answered only, that land, whose name (thus occurring I cannot pass he did him wrong; and turning to the sheriff by, and yet I cannot shill to fluiter. But this I said, You promised me I should not be troubled will say of him, and I would say as much to at this time. Nevertheless, he pressed him to ages, if I should write a story ; that never man's answer; saying, he desired to know it, that he person and his place were better niet in a lusi- ! might pray with him. I know not that sir ness, than my lord Coke and my lord chief jus- 1 John Wentworth is an Ecclesiastick, that he tice, in the cause of (serbury.
should cut any man from the communion of Now, my lurds, in this ostence of Mr. Lums- : prayer. And yet for all this vexing of the spirit den's, for ine particulars of these slanderous of a poor man, now in the gates of death, Wesarticles, I will obne sve them unto you when tie i ton nevertheless stood constant, and said, I die writings and examinations are read; for I do not unworthily: my lord chief justice hath iny not love to set the gloss before the text. But mind under my hand, and he is an honourable in general I note to your lordships, first, the and just judge. This is sir Jahn Wentworth's person of Mr. Lumsden: I know he is a Scots offence. gentleman, and thereby more ignoruit viour For Sir John Hollis, he was not so much a laws and forms: But I cannot tell whether this questionist ; but wrought upon the other's quesdoth extenuate his fault in respect of ignorante, tions, and, like a kind of confessor, wished him or aggravate it much, in report of presump- to discharge his conscience, and to satisfy the tion; that he would meddle in that that he world. What world? I marvel! It was sure understood not: but I duu't it camne nyt out of the world at Tyburn. For the world at Guildhis quiver; some other man's cunning wrought Hul, and the world at London, was satisfied upon this man's boldness. Secondly, I may hctore; teste the bells that rung. But men note unto you the gretues of the case, have got a fashion non-a-days, that two or wherein he being a private, mean gentleman, three busy-bodies will take upon thein the name did presume to deal. Mr. Luin den could not of the world, and broach their own conceits, as but kuow to what great and grare commis- if it were a general opinion. Well, what more? sioners the king had committed this cause; and When they could not work upon Weston, then that his majesty in his wisdom would expect sir John Hollis in an indignation turned about return of all things from them to who e trusi hel his horse (when the other was turning over the had committed this business. For it is the part, ladder) and said, he was sorry for such a conof commnissioners, as well to report the business, clu-:00;' that was to bave the state honoure. as to manage the business; and then his ma or justified: but others took and reported his jesty might have been sure to have bad all words in another degree: but that I leave, seethings well weighed, and truly informed: and ing it is not confe-sed. therefore it should bave been fir from Mr. Sir Jubin Hollis's offence had another appenLumsden to have presumed to put forth lis dis, before this in time; which was, that at the hand to su liigh and render a business, which day of the verdict given by the jury, he also was not to be iouched but by employed hands. would needs give his verdict, saying openly, Thirdly, I note to your lordships, thit this in that if le were of the jury, he would doubt fusion of a slander into a king's ear, is of all what to do. Marry (he saith), le cannot tell forms of libels and slanders the worst. It is well whether he spake this before the jury bad true, that kinus may keep secret their informa- given up the verdict, or after ; wherein this is tions; and then no man ought to equire atter litile gained. For whether sir John Hollis were them, while they are shrined in their breast. a pre-juror or a post-juror, the one was to preBut where a king is pleased that a man shall judge the jury, the other as to taint them. answer for bis tulse information ; there, I say, Of the ottence of these two gentlemen in the fulse information to a king exceeds in of general, your lordships must give me leave to fence the false information of any other kind; say, that it is an offence greater and more danbeing a kind (since we'are in maiter of poison gerous than is conceived. I know well, that as of imprisonment of a king's ear. And thus we have no Spanish inquisitions, nor justice in much for the offence of Mr. Lumsden.
a comer; so we bave no gagving of men's For the offence of sir John Wentworth and mouths at their death, but that they may speak sir John Llollis, which I said was in consort, it freely at the last hour; tut then it must come was shortly this: At the time and place of the from the free motion of the party, not by iempexecution of Wesion, to supplant bis Christian tation of questions. The questions that are to resolution, and to scandalize the justice already be asked, onght to tend to farther revealing of past, and perhaps to cut off the thread of that their own or others guiltiness; but to use a which is to come; these gentlemen, with others, question in the nature of a false interrogatory, came in unted on horseback, and in a ruilling to falsity that which is res judicatu, is intoleraa id facing manner, put themselves forward to ble. For that were to erect a court or comunisre-examine Weston upon questions: and what sion of review at Tyburn, against the king'squestions? Directly cross to that that had been Bench at W:stminster. And besides, it is a tried and judged; for what was the point wieci? thiog vain and idle: for if they answer accordThat Weston had poisoned Overbury. What ing to the judgment past, it adds no credit; or was sir John Wentworth's question; whether | if it be contrary, it derogatetir nothing : But
yet it subjecteth the majesty of justice to popu- doubt what to do; and this he confessed, as a lar and vulgar talk and opinion.
iman perhaps more trickish and curious to give My lords, these are great and dangerous of his verdict or judgment of lite or death than fences; for if we do not maintain justice, jus- others: und if a bare word of his opinion tice will not maintain us.
drawn by discourse (he being but a stander-by But now your lordships shall bear the Exa- in-this business) be to be censured, I appeal minations themselves. Hereupon the Exami- , to your judgments. His second otsence was nations were read.
for giving of counsel, and asking questions of Mr. Lumsden for Answer to this charge said, Weston at the execution. He said, he confest that himself was not at the arraignment, but he was there, but carried with a general desire what he had spoken, or set down in writing, he' which he had to see the execution, as he had had received of many in common discourse; done in many like cases before. And he had who being now demanded to justify the same, formerly seen that it was a common thing for do deny it; and therefore he would confess men standers-by to ask questions of those that that which was written was false. He pleaded , were to be executed : and now many asking ignorance of the law, and that he did it without this question of the fact of Weston, and he any purpose of prejudice to the public business, answering in general terms, I die not unwor. but only as he conceived out of duty; and be- thily; he also, among many others, did ask cause he had always lived as a gentleman, he him the question (as hath been opened ;) which would not so much degenerate from himself was not purposed of him when he came rhither, and his birth, nor so much offend against but was occasioned by reason of one that stood buman society, as to become a base accuser ; behind him at the gallows, who said to Weston, but would submit himself and his offence to that he should contess the truth of this fact, for the censure of the court, and to the favourable ' if he had had his right, he had been hanged interpretation of their lordships.
many years ago : whereunto Weston answered, Mr. Attorney replied, that his answer and fact or no fact I die worthily. Sir John said, submission were modest, and therefore he that Mr. Attorney had so well applied his would not press bis offence further; yet be charge against bim, that though he carried the would tell him, that in criminal causes whoso. seal of a good con science with him, he would ever would raise a slander, and refuse to tell almost make him believe that he was guilty; his author, he must tell him that which the but be hoped their lordships would take the laws tell him, that he was the author himself. | bird hy the body and not by the feathers : bis This kind of slandering judges to kings and speech, he said, might be well understood, but princes is common. Popham, a great judge in the worst end of it was turned towards him ; bis time, was complained of by petition to he did but the part of a christian to persuade queen Elizabeth; it was committed to four Weston to discharge bis conscience, and inprivy-counsellors ; but the same was found to tended not to controvert the law and justice be slanderous, and the parties punished in the that had passed on him. As for thu trimony court. He likewise said, I may not admit of of Bearinghorne, I know not what he f, that this new learning; I hold it not unworthy a bath deposed against me; but it seems he is gentleman to discharge his fault upon the first some man of trade, against whom I think I author; and by the law, the not doing thereof may now put myself in opposition, that my maketh bim the first author; so he becomes a devial may stand against his affirmation. In false accuser of himself.
his youth some of your lordships know, that he Sir John Wentworth's answer was, that he [sir Jobn Hollis] had spent some of his time would not willingly be conceived to speak more in the wars and travel, and afterwards had here than he had done heretofore. Ii was true, lived in place at court, both in the time of queen that he was at the execution of Weston, and Elizabeth, and his majesty eight years : he had did ask those questions touching the poisoning served the late most worthy prince, the me of sir Thomas Overbury ; which he did on two mory of whom, he said, did grieve him that he reasons: the one was, because he had seen shwuld plead his name 'at the bar, whom for others do the same at the same time, and espe- the misery of this state it pleased God to take cally one Parkes; and he thought he might do away; since whose death he had been as a it as well as he. Another reason was, because fish out of the water. Thus much, he said, he not being at the arraignment, and hearing was pulled out of his mouth, by reason of bis that Weston had denied the fact, he was desi- testimony produced against him; but he knew rous to be satisfied of the truth from himself; that not words but his cause must belp him out yet he purposed not to ask any questions when of this mire. And therefore if their lordships he came thither ; but if to ask questions of a had determined any thing against him for these man going to execution were offensive to the offences, he did bumbly submit himself to their state, he did humbly submit to their lordship’s honourable co'sures. — The lord chancellor censures.
said, that inis deposition of Bearingborne was Sir John Hollis answered, that the matter not read but in explanation and aggravation, declared against him contained three crimes. and not for evidence of condemnation against The first, that whereas at the first upon the in- sir John Hollis. dictment he should fore-judge the jury, by de Mr. Attorney replied upon sir John to this divering his opinion; saying, that he should answer of his, that his speech to Weston was
occasional, and not resolved on before bis dagger; yet the party is guilty, because the coming to the execution; that it was new killing of a man is the point of the indictment; matter thought upon and devised since his then be confessed the fact. And for this genbeing questioned for bis utlence; for there was tleman, Mr. Lonsden, a Scotish gentleman, a never a word thereot' spoken in this examina- nation than he loved well, (and to his majesty tion : and there this is the feather you spoke of, both English and Scotish were equally dear) and not the body. Whereunto sir Jolin Hollis · Scoti et Angli nullo discrimine, &c. He that answered, that they might very well stand to- infuseth into his majesty's ears the least falsgether.
bood concerning his judges unjustiy, is like bim Hereupon sir Edward Coke, the chief justice that intuseth never so little copper into coin; of the king's-Bench, pronounced the Sentence; they both commit a kind of treason; and for when he said, that he would say of this bus:- the matter of it, which was informed, for mess, and his dealing therein, as Abimelech saidqui non bene respondet, non respondet ;' of himself, • Tu scis, Domine, quod feci in sim- and a little to divert from this business, you, • plicitate cordis et mundutie manuun ;' and Mr. Lumsden, were a pandar to the earl of therefore would also boldly athirin, that there Somerset, and were bis favourer in deed, but were none brought into question of this great his follower in evil. ‘Afliictio dat intellectum, business of poison, but such as in his soul and let your ailliction now give you sense and feel. conscience were apparently guilty: Ile said being of your sins; your service of a pandar is was no fit man för a common.place; yet he apparently to be shewed you by a lerier under had found some records of poisoning which he my lord of Somersei's own hand, and your an. would shew: ay namely in the treasury 31 Ed. swer to it. Let it then enter your heart and 3, as the king indeer had two treasuries, the soul to assure yourselt, that there is now no one of records, the other of gold and silver ; safety, protection, nor assurance, but under a where a woman conmitted adultery, and after religious faith in Jesus Christ; and that, radix poisoned her husband. And 21 Edw. 1, Solo-justitiæ est pietas,' the foundation and root mon le Roch, a judge, was poisoned by a monk, of jostice is piety. I contes I had a great suswho afterwards prayed to be deliveied to the picion out of whose quiver the murder came censure of the church; and he was denied, be- first; but because I had no certain proots, I cause the saine was a wrong to the state to poi- would never question them. This resolution of son a jurige. And it is to be observed in the Weston to be mute, was very great. When he first case, that poison and adultery go together; was persuaded by the bishop of London and and on the second, that poison and popery go Ely to plead, he would not: and after being together. From Edward 3, down to 22 Henry promised that if he would speak, he should 8, (which was a great lump of time) no mention have a popish priest ; be thereunti answered, is made of poisoning any man; and then a Have I refused the godly persuasions of the bistatute was made, thout those that did poison shop of London, and shall I answer to a popisha auy body should be buited to death, and were priest? And tor your persuasions, Mr. Lums. first to be put in it: the tiptoes. In' this busi- den, that you will not be an accuser, this is a ness, he said, he would tell no news, but he contemptuous answer; for this is not to be an was not yet at the root; God forbid that those accuser, being examinest of another to discover kinds of offences should be insearched and un- him ; but your retusal in this kind of answer is punished, wheresoever they are found: There a manitest contempt : and for the like otience, are divers sorts of poisoning, hy some whereof a great lady of the land lieth now in the Tower, a man shall die a month or a quarter of a year only for refusing to answer being examined. atter, ut sic se sentiat mori;' and shall not Quod diabolus ad maluin exposuit, Devs ad know in what manner he is poisoned : as one "bonuin exposuit;' That which the devil exSquire, a priest, should have poisoned queen poseth to evil, God disposeth to good. This Elizabeth by poisoning her sadule. This poi- refusing to discover an oifender, is a contempt soning came first from popery. In this case of to a master of a family; it he should command Westou he would never confess the indictment, any of his servants to tell him of an offence because the indictinent was, that he poisoned committed, and by whom; and the servant sir Thomas Overbury with arsenick, ro-eaker that is so asked shall refuse to tell him, he shall and inercury sublimate; whenas indeed it was be worthy of punishment: much more any not known what poison killed him. Here the subject being examined by the king's authority poor man conceived a scruple, that it he did and commissioners, if be shall retuse to make not know with which of the poisons Overbury discovery of the truth. The statute of the 1st *was poisoneil, he was not guilty of the offence and ad of Rich. 4, is, that he that doth raise laid in the indictment; and therefore said he false news between the king and his nobles, was not guilty of the offence. Now • ut ob shall be imprisoned for the space of a vear; I
struatur os iniqui,' that the mouth of the tbink it that Mr. Lumsden's imprisonment wicked man may be fully stopped ; after that should be for a year, and afterwards, until he it was resolved unto him, that the manner of should produce bis author. As for sir John killing, laid in the indictment, was not the point Hollis, his fault of questioning and counselling, of the indictment, but the matter of killing; as it is very great, the same being made after a if the indictinent be, that a inan was killed with verslict; for if a man commit treason the 20th a sword, whereas indeed he was killed with a day of May, and sell his lands the 5tb day, and
after is indicted that he did commit the treason yet a little knowledge of the common-law of the 1st day, which goes before the sale, and this land would have been better for him than atter is found guilty of this indictinent; he that all these; it would have kept him from asking is to lose the land cannot deny this verdict, questions, and counselling in scandal of reliand say the treason was committed the 20th gion and justice ; two of the main pillars of day, though it concern him for all that he hath the kingdom, and that in cold blood. Eviof laying ; if that he that is to be undone by a dence is above eloquence ; the party himself verdict shall not speak cross matter to a ver- acknowledged that he died justly; and those dict (as the books of Ed. 3, and Ed. 1, are, that saw hini said he died penitently : so to and 11 Hlen. 4, 53 Estophel. 137,) what shall conclude, as it was sometime said of Rome, be done to him that haviog no cause in a mat • Et quæ tanta fuit Romam tibi causa videndi, ter capital, wherein he had nothing to do, he might very well now say of sir John Hollis would intermeddle? For as the law saith, his going to 'Tyburn, with a little alteration of * Turpis est admissio rei ad se non pertinentis.' | the words, - Et quæ tanta fuit Tyburn tibi cauSir John said, hat it hath been a custom to ask sa videndi. For the censure, he agreed with questions at those times, and that he did usu that which had been set; and the acknowledgally go to executions. For bis own part, he ment of Mr. Lumsden should be also in the said, that ever since he was a scholar, and had court of Common-Pleas and the Exchequer, read those verses of Ovid, Trist. iii. 5.
because the justice of all courts may be wrong. Et lupus et vulpes instant morientibus-
ed with slanderous petitions. He moved that "Et quæcunque minor nobilitate fera est,'
information might be made against the other
gentlemen that were asking such questions as he did never like it; and therefore, he said, be these were; and that they might receive their did marvel much at the use of sir John. Sir due punishment: be meant, he said, Mr. SackJohn answers here at the bar, and saith, that vil, sir Thomas Vavasor, and sir Henry Vane, if any thing were determined against him, he who would be a baron if attainders did not lié did tumbly submit himself thereto: by which in the way: If these be not punished, these term so determining, he meant, I think, as if gentlemen will think that they have wroug; we did give our censures against bio by con for quæ mala cum multis patimur leviora vispiracy. For my own part, I talked with none • dentur.' He said he would wish gentlemen other, nor I think did any of us one speak with to take heed how they fell into discourses of other before we came together here. Perad- these businesses, when they be at their chamventure he thinks, as some have thought, that bers; for in the proceeding of these great buall the carriage of this business is but a con- sinesses and affairs, if a man speak irreverently spiracy against the earl of Somerset. He saith, of the justice thereof, the bird that hath wings he hath been since the prince's death but as a will reveal it. fish out ot'the water. I know not what he means The Sentence was fine, imprisonment, and by a fish out of the water : I have heard that submission, as followeth : •Clericus in oppido, tanquam piscis in arido,' Lumsden fined 2,000 marks, imprisoned in a clerk in the town is like a fish out of the the Tower for a whole year, and atter until he water : he is a justice of peace, a comunissioner shall, at the king's-bench bar, submit himself of Oyer and Terminer ; a man of fair lands, and confess his fault, and also produce liis au1500l. per annum at the least; this money is thors. enough to be a privy-counsellor : and yet sir Sir John Hollis was fined 1,0001. imprisoned John Hollis is like a fish out of the water, I in the Tower for the space of a year. know he hath travelled many countries, speaks Sir John Wentworth fined 1,000 marks, immany languages, hath seen many manners and prisoned in the Tower for a year; and both to customs, and knows much of foreign nations; make submission at the King's-bench bar.
111. The Case of Duels; or Proceedings in the Star-Chamber,
against Mr. William Priest for writing and sending a Challenge, and Mr. RICHARD Wright for carrying it: 26th Jan.
13 JAMES I. A. D. 1615. [2 Bacon's Works, 563.] CHARGE of sir Francis Bacon, the King's of this presence, and also the better to have
censure; both because it had been more worthy Attorney-general.
shewed the resolution myself hath to proceed My lords; I thought it fit for my place, and without respect of persons in this business. for these times, to bring to hearing before your But finding this cause on foot in my predelordships some cause touching private Duels
, cessor's time, and published and ready for hearto see if this court can do any good to tame ing, I thought to lose no time in a mischief that and reclaim that evil, which seeins unbridled.groweth every day: and besides, it passes not And I could have wished that I had met with amiss sometimes in government, that the greater some greater persons, as a subject for your sort be admonished by an example made in the
meaner, and the dog to be beaten before the and statute-books must give place to some lion. Nay, I should think, my lords, that men French and Italian pamphlets, wbich handle of birth and quality will leave the practice, , the doctrine of Duels, which if they be in the when it begins to be vilitied, and coide so low right, transeamus ad illa, let us receive them, as to barber-surgeons and butchers, and such and not keep the people in conflict and distracbase mechanical persons. And for the great- i tion between two laws. Again, my lords, it is ness of this presence, in which I take much ; a miserable ettect, when young men full of comtört, both as I consider it in itself, and towardness and hope, such as the poets call much more in respect it is by his majesty's surore filii, sons of the morning, in whom the direction, I will supply the meanness of the expectation and comfort of their friends conparticular cause, by handling of the general sisteth, shall be cast away and destroyed in point: to the end, that by the occasion of this such a vaia manner. But much more it is in present cause, both my purpose of prosecution be deplored when so much noble and genteel against Duels, and the opinion of the court, blood should be spilt upon such follies, as if it without which I am nothing, for the censure were adventured in the field in service of the of them, may appear, and thereby offenders in king and realm, were able to make the fortune that kind may read their own case, and know of a day, and to change the fortune of a king, what they are to expect; which may serve for a dom. So as your lordships see what a deswarning until example may be made in some perate evil this is; it troubleth peace; it disgreater person : which I doubt the times will furnisheth war; it bringeth calamity upon pribut tou sovu afford,
vate men, peril upon the state and contempt There fore before I come to the particular, upon the law. whereof your lordships are now to judge, I Touching the Causes of it: the first motive, think it time best spent to speak somewhat no doubt, is a false and erroneous imagination 1. Of the nature and greatness of this mi-chief. of honour and credit; and therefore the king, 2. Of the Causes and Remedies. 3. Of the in his last Proclamation, doth most aptly and justice of the law of England, which some stick excellently call them bewitching Duels. For, not to think defective in this matter. 4. Of if one judge of it truly, it is no better than a the capacity of this court, where certainly the sorcery that enchanteth the spirits of young Remedy of this Mischief is best to be found. men, that bear great minds with a false shew, 5. Touching mine own purpose and resolution, species fulsa; and a kind of Satanical illusion wherein 1 shall humbly crave your lordships and apparition of bonour against religion, aid and assistance.
against law, against moral virtue, and against For the Mischief itself, it may please your the precedents and examples of the best times Jordships to take into your consideration, that and valiantest nations; as I shall tell you by when revenge is once extorted out of the magis- and by, when I shall shew you that the law of trate's hands, contrary to God's ordinance, England is not alone in this point. But then mihi vindicta, ego retribuam,' and every man the seed of this mischief being such, it is noushall bear the sword, not to defend, but to rished by rain discourses, and green and upripe assail; and private men begin once to presume conceits, which nevertheless buve so prevailed, to give law to themselves, and to right their as though a man were staid and sober-minded, own wrongs; no man can foresee the danger and a right believer touching the vanity and and inconveniencies that may arise and multiply unlawfulness of these duels; yet the stream of thereupon. It may cause sudden storms in vulgar opinion is such, as it imposeth a necescourt, in the disturbance of bis majesty, and sity upon men of' value to conform themselves, unsafety of his person. It may grow from or else there is no living or looking upon meus quarrels to bandying, and from bandying to faces: so that we have not to do, in ihis case, trooping, and so to tumult and commotion; so much with particular persons, as with anfroni particular persons to dissension of fami- sound and depraved opinions, like the dominalies and alliances; yea to national querreis, tions and spirits of the air which the scripture according to the iotinite variety of accidents, speakerh of. Hereunto may be added, that wbich fall not under foresight. So that the men have almost lost the true notion and state by tliis means shall be like to a distemper- understanding of fortitude and valour. For ed and imperfect body, continually subjeci to fortitude distinguisheth of the grounds of quarinfamations and convulsions. Besides, cer rels whether they be just; and not only so, but tainly, both in divinity and in policy, otiences whether they be worthy; and setieth a better of presumption are the greatest. Other offences price upon mens lives, than to bestow them yield and consent to the law that it is good, idly. Nay, it is weakness and dis-esteem of a not daring to make defence, or to justify ihem- man's self, to put a man's life upon such liedger selves; but thi, offence expressly gives the law performances. A man's life is not to be trified an aitront, as if there were to laws, one a anay: it is to be offered up and sacrificed to kind of gown-law, and the other a las of re- tionourable services, public merits, good causes, putation, as they term it. So that Pavi's and and noble adventures. It is in expence of Westminster, the pulpit and the courts of jus- blood as it is in expence of money. It is no tice, must give place to ţie law, as the king liberality to make a profusion of money upon speaketh in bis proclamation, of ordinary tables, every vain occasion; nor no more it is fortitude and such reverend assemblies: the Year-Books to make effusion of blood, except the cause bę