when he said, he hoped the small flies should : VOL. II. Questions legal for the Judges in the Case of the Earl and Countess of Sumerset. Whether the ax 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to be interrupted and silenced; and, if he persist, he be not to be told, that if he take that course, he is to be withdrawn, and evidence to be given in his absence?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? 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 his Council, 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. It 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' will to save his life, the people will be so set on fire. 3 a 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. The second is to prove the preparations unto the impoisonment, by plotting his imprisonment, placing his keepers, stopping access of friends, &c. The third is the acts of the impoisonments themselves. And the fourth is acts subsequent, which do vehemently argue him to be guilty of the impoisonment.-Apostyle of the king. Ye will doe well to remember lykewayes in your præmble, 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 may not serve clearlie for probation or inducement of that point, quhair of he is accused.'] 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 scrjeant 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 propo:tion 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 mat ters 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 should 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 tried for his life upon another crime. But yet him with disloyalty, because he stands to be by some taste, that I 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 like to hatch dangerous secrets and practices. I mean to shew likewise that jargons there were and ciphers between them, which are great badges of secrets of estate, and used either by princes and their ministers of state, or by such as practise against princes. That your majesty was called Jubus in 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; Northamp ton, 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. Neither will I omit Somerset's breach of trust to your majesty, in trusting Overbury with all the dispatches, 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. 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 happer 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 1-t, except he hear somewhat of this kind. But this it is to come to the leavings of a business. -[Apostyle of the king. This evidence cannot be given in without making me his accu-er, and that up on a very sight ground. As for all the subsequent evidences, they are all so little evident, as una litura may serve thaime all.'] And for the rest of that kind, as to speak of that particular, that Mrs. Turner did at White hall shew to Franklin the man, who, as she said, poisoned the prince, which, he says, was a physician with a red beard.-[Ap. &c. Nothing to Somerset, and declared by Franklin after condemnation.'] 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.-[Ap. &c. Nothing to Somerset, and a loose conjecture.'] 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. [Ap. &c. No better than a gazette, or passage of Gallo Belgicus.'] That Somerset, with others, would have preferred Lowbell the apothecary to prince Charles. [4p.&c. Nothing yet proved against Lowbell.'] That the countess laboured Forman and Gresham, the conjurers, to inforce the queen by witchcraft to favour the countess.-[Ap. &c. Nothing to Somerset.'] That the countess told Franklin, that when the queen died, Somerset should have Somersethouse.-[Ap. &c. Declared by Franklin after condemnation."] That Northampton said, the prince, if ever he came to reign, would prove a tyrant.-[Ap. &c Nothing to Somerset.'] That Franklin was moved by the countess to go to the Palsgrave, and should be furnished with money.-[Ap. &c. set.'] Nothing to Somer The particular reasons, why I omit them, I have [inserted between crotchets]; 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 shall hear hereafter, that Mr. Attorney hath omitted divers material parts of the evidence. Indorsed, "Somerset's Business and Charge, with his majesty's Postiles." Some curious particulars, concerning the proceedings against the Somersets, are to be found in Bacon's Correspondence as given in the late editions of his works. 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. 109. The Trial of ROBERT CARR* Earl of Somerset,† May 25, for the Murder of Sir Thomas Overbury: 14 JAMES I. A. D. 1616. Ser. Cryer. O YES, my Lord High Steward of England purposes this day to proceed to the Trial of Robert earl of Somerset. O yes, Whosoever have any Indictments touching this cause, publicly give them in. *Co. Inst. 50. Bacon's Works, vol. i. p. 87. "And now begins the game to be played, in which Somerset must be the loser, the cards being shuttled, cut, and dealt between the king and sir Edward Coke, chief justice, whose daughter Purbeck Villers had married or was to marry, and therefore a fit instrument to ruin Somerset and secretary Winwood; these all played the stake; Somerset's life and his lady's, and their fortunes, and the family of Suffolk some of them played booty, and in truth the game was not played above-board. The day the king went from Whitehall to Theobald's, and so to Royston, the king sent for all the Judges (his lords and servants encircling him) where kneeling down in the midst, he used these words: " My lords the Judges; It is lately come to my hearing that you have now in examination a business of poisoning: Lord, in what a most miserable condition shall this kingdom be (the only famous nation for hospitality in the world), if our tables should become such My lord Coke delivers in the Indictment of my lord of Somerset to Mr. Fenshaw indorsed. Ser. Cryer. O yes, Walter Lee, Serjeant at Arms, return the Precept for the lords, which thou hast warned to be here this day. O yes. a snare as none could eat without danger of life, and that Italian custom should be introduced amongst us; therefore my lords 1 charge you, as you will answer it at that great and dreadful Day of Judgment, that you examine it strictly without favour, affection, or partiality; and if you shall spare any guilty of this crime, God's curse light on you and your posterity; and if I spare any that are guilty, God's curse light on me and my posterity for ever."-But how this dreadful thunder, curse or imprecation was performed, shall be shewed hereafter; and I may pray God the effect be not felt amongst us, even at this day, as it hath been, I fear, on that virtuous lady Elizabeth and her children for God treasures up such imprecations and deprecations, and pours them out when a nation least dreams, even when they cry, Peace, peace to their souls; and it may well be (at this time our sins concurring) pouring out upon king, judges, and the whole state. It appears how unwilling the king was to ruin Somerset, reading, he three or four times whispered to the Lieutenant. Mr. Fenshaw. Robert earl of Somerset, [He calls every lord by his name, and they stand up as they be called.]-My Lord High Steward excuses the lords Mounteagle and Russel of their absence, in respect of their sick-What savest thou, art thou Guilty of this felony and murder whereof thou standest indicted, or Not Guilty? ness. Ser. Cryer. O yes, Lieutenant of the Tower, return thy Precept, and bring the Prisoner to the Bar. Which he did, and my lord makes three reverences to the Lord High Steward and the lords. Mr. Fenshaw. Rob. earl of Somerset, hold up thy hand. He holds it up so long, until Mr. Lieutenant bad him hold it down. The Indictment is read, containing Weston's actions in the poisoning of sir T. Overbory, and his abetting of him, the 8th of May 1613.-My lord of Somerset was apparelled in a plain black sattin suit, laid with two sattin laces in a seam; a gown of nnent velvet lined with unshorn: all the sleeves laid with sattin lace; a pair of gloves with sattin tops, his george about his neck, his hair curled, his visage pale, his beard long, his eyes sunk in his head. Whilst his Indictment was My lord of Somerset making an obeisance to the Lord High Steward, answered, Not Guilty. Mr. Fenshaw. How wilt thou be tried? Ld. Som. By God and the country; bat presently recalling himself, said, By God and my peers. Ser. Cryer. O yes, All you that be to give in evidence against Robert earl of Somerset, who stands now at the bar upon his deliverance, make your appearance, and you shall be heard what you have to say against him. My lord of Somerset, upon his arraignment, having pleaded Not Guilty, the proceeding after was thus: Lord High Steward. [Ellesmere, Lord Chancellor.] Robert earl of Somerset, you have been arraigned, and pleaded Not Guilty; now I must tell you, whatsoever you have to say in a creature of his own making, sed immedi- your own defence, say it boldly, without fear; 'cabile vulnus, ense rescindendum est.' Grace and though it be not the ordinary custom, you was offered by the king, had he had grace to shall have pen and ink to help your memory: have apprehended it. The king with this, took but remember that God is the God of truth; a his farewel for a time of London, and was ac- fault defended is a double crime; hide not the companied with Somerset to Royston, where, verity, nor affirin an untruth; for, to deny that no sooner he brought him, but instantly took which is true, increases the offence; take heed leave, little imagining what viper lay amongst lest your wilfulness cause the gates of mercy to the herbs; nor must I forget to let you know be shut upon you. Now for you, my lords the how perfect the king was in the art of dissimu-peers, you are to give diligent attention to that lation, or, to give it his own phrase, king-craft. The earl of Somerset never parted from him with more seeming affection than at this time: when he knew Somerset should never see him more, and had you seen that seeming affection, as the author himself did, you would rather believe he was in his rising than setting. The earl when he kissed his hand, the king about his neck, slabbering his cheeks, saying, God's sake when shall I see thee again? on my soul I shall neither eat nor sleep until you come again; the earl told hun, on Monday (this being on the Friday). For God's sake let me,' said the king, 'shall I? shall I?' Then lolled about his neck; then for God's sake give thy lady this kiss for me;' in the same manner at the stairs-head, at the middle of the stairs and at the stairs foot. The earl was not in his coach, when the king used these very words (in the hearing of four servants, of whom one was Somerset's great creature, and of the bed-chamber, who reported it instantly to the author of this History) stali never see his face more.'-I appeal to the reader, whether this motto of Qui nescit dissimulare nescit 'regnare,' was not as well performed in this passage as his Beati Pacifici, in the whole course of his life; and his love to the latter, made him to be beaten with his own weapon in the other, by all princes and states that ha to do with hum." Weldon's Court and Character of King James, p. 99. which shall be said; and you must not rest alone upon one piece of evidence, but ground your judgment upon the whole. This moreover I would have you remember, that though you be not sworn as common juries, upon a book, yet that you are tied in as great a bond, your own honour and fidelity, and allegiance to the king: and thus I leave the whole proceedforing to your censures. And for you that be of the king's counsel, free your discourse from all partiality, but let truth prevail, and endeavour to make it appear. England, and you my lords, this cannot but be Sej. Montague. My Lord High Steward of a heavy spectacle unto you, to see that man that not long since in great place, with a white staff, went before the king, now at this bar hold up his hand for blood; but this is the change of fortune, nay, I might better say, the hand of God, and work of justice, which is the king's honour.-But now to the fact; Robert earl of Somerset stands indicted as accessary before the fact, of the wilful murder and pois ning of sir T. Overbury, done by Weston, but procured by him; this, my lord, is your charge. The Indictment hath been found by men of good quality, seventeen knights and esquires of the best rank and reputation, some of whose names I will be bold to read unto you; sir T. Fowler, sir W. Slingsby, and fifteen more; these have returned billa vera. Now an Indictment is but an accusation of record in form thus: Weston, I at four several times, gave Overbury four several of proof to satisfy your honours consciences.— poisons, the first May 9th, 1613, that was rosal- As for the manner of the evidence, the king gar, carrying this poison in one band, and his our master, who, amongst other his virtues, exbroth in the other; the second was June follow-celleth in that virtue of the imperial throne, ing, and that was arsenick; the third was July which is justice, hath given us command, that the 10th following, and that was mercury subli- we should not expatiate nor make invectives, mate in tarts; the fourth was Sept. 14th follow-but materially pursue the evidence, as it coning, and that was mercury sublimate in a clyster, daceth to the point in question.-A matter, given by Weston and an apothecary yet un- that, though we are glad of so good a warrant, known, and that killed him. Of these four se- yet we should have done of ourselves: for far veral poisons ministered by Weston, and pro- be it from us by any strains of wit or arts, to cured by you, the 15th of Sept. 1615, Overbury seek to play prizes, or to blazon our names in died, and the author is ever worse than the blood, or to carry the day otherwise than upon actor. The first poison laid in the Indictment, sure grounds; we shall carry the lanthorn of that Weston gave sir T. Overbury, was the 9th justice (which is the evidence) before your eyes of May; and therefore we say, That the lord upright, and so be able to save it from being Somerset, the 8th of May, hired, counselled put out with any ground of evasion or vain deand abetted Weston to this fact: and as this fence, not doubting at all, but that the evidence day, my lord, I do charge you for a king, so itself will carry that force, as it shall need no heretofore king David was charged in the like advantage or aggravation.-First, my lords, case, for the murder of Uriah; and though the course that I will hold in delivering of that. David was under his pavilion, and Uriah in the which I shall say, for I love order, is this: 1st, army, yet David was the cause of his murder: I will speak somewhat of the nature and greatso though you were in the king's chamber, and ness of the offence, which is now to be tried, Overbury in the Tower, yet it was you that not to weigh down my lord with the greatness killed him. It was a stronger hand than of it, but rather contrarywise to shew, that a Weston's that wrought this. The proof, Mr. great offence needs a good proof. And that Attorney, will follow; and I will now conclude the king, howsoever he might esteem this genwith two desires to the peers: first, That they tleman heretofore as the signet upon his finger will not expect visible proofs in the work of (to use the Scripture phrase), yet in such a darkness. The second is, That whereas in an case as this, he was to put it off.-2dly, I will Indictment there be many things laid only for use some few words touching the nature of the form, you are not to look that the proof should proofs, which in such a case are competent.follow that, but only that which is substantial; 3dly, I will state the proofs.-And, lastly, I and the substance must be this, Whether my will produce the proofs, either out of examinalord of Somerset procured or caused the poi- tion and matters of writing, or witnesses diva soning of sir T. Overbury, or no? L. H. S. That indeed, my lords, is that which you are to look after, Whether my lord of Somerset was the cause of his poisoning, or not? Lord Coke. This was very well moved by Mr. Recorder, and the law is clear in this point, that the proof must follow the substance,* not the form. The Judges all rising, affirmed this to be true. Att. Gen. (sir Francis Bacon). May it please your grace, my Lord High Steward of England, and you my lords the peers, you have here before you Robert earl of Somerset to be tried for his life, concerning the procuring and consenting to the poisoning of sir T. Overbury, then the king's prisoner in the Tower of London, as an accessary before the fact.-I know your honours cannot behold this noble man, but you must remember the great favours which the king hath conferred on him, and must be sensible, that he is yet a member of your body, and a peer, as you are; so that you cannot cut him off from your body, but with grief: and therefore you will expect from us that give in the king's evidence, sound and sufficient matter * Qu. If this be what Weldon means in the passage cited from ha in the note to Anne Turner's case, supra, p. 929. voce. For the offence itself, it is of crimes, next unto High-treason, the greatest; it is the foulest of felonies. It hath three degrees; First, It is murder by impoisonment: Secondly, It is murder committed upon the king's prisoner in the Tower: Thirdly, I might say, That it is murder under the colour of friendship; but that is a circumstance moral, and therefore I leave that to the evidence itself. For murder, my lords, the first record of justice which was in the world, was judgment upon a murderer, in the person of Adam's first-born Cain: and though it was not punished by death, but banishment, and marks of ignominy, in respect of the population of the world; yet there was a severe charge given, that it should not go unpunished. So it appeareth likewise in Scripture, that the murder of Abner by Joab, though it were by David respited in respect of great services past, or reason of state, yet it was not forgotten. But of this I will say no more, because I will not discourse; it was ever admitted and ranked in God's own tables, that murder is, of offences between man and man, next unto High-Treason, and disobedience to authority, (which sometimes have been referred to the first table, because of the lieutenancy of God in princes) the greatest.-For impoisonment, I am sorry it should be heard of in our kingdom; it is not nostri generis, nec sangui |