prosecuted by my Lord Hunsdon* as your farmer. Your first direction was by Sir Christopher Parkins, that the day appointed for the judicial sentence should hold: and, if my lord chief justice, upon my repair to him, should let me know, that he could not be present, then my lord chancellor should proceed, calling to him my Lord Hobart, except he should be excepted to; and then some other judge by consent. For the latter part of this your direction, I suppose, there would have been no difficulty in admitting my Lord Hobart; for after he had assisted at so many hearings, it would have been too late to except to him. But then your majesty's second and later direction, which was delivered unto me from the Earl of Arundel, as by word of mouth, but so as he had set down a remembrance thereof in writing freshly after the signification of his pleasure, was to this effect, that before any proceeding in the chancery, there should be a conference had between my lord chancellor, my lord chief justice, and myself, how your majesty's interest might be secured.

cial councils.

This later direction I acquainted my lord chan- 2. Against the provin-
cellor with; and finding an impossibility, that
this conference should be had before to-morrow,
my lord thought good, that the day be put over,
taking no occasion thereof other than this, that
in a cause of so great weight it was fit for him to
confer with his assistants, before he gave any
decree or final order. After such a time as I have
conferred with my lords, according to your
commandment, I will give your majesty account
with speed of the conclusion of that confer-

ence.

Farther, I think fit to let your majesty know, that in my opinion I hold it a fit time to proceed in the business of the "Rege inconsulto," which is appointed for Monday. I did think these 3. greater causes would have come to period or pause sooner: but now they are in the height, and to have so great a matter as this of the " Rege inconsulto" handled, when men do "aliud agere,' I think it no proper time. Besides, your majesty in your great wisdom knoweth, that this business of Mr. Murray's is somewhat against the stream of the judge's inclination: and it is no part of a skilful mariner to sail on against a tide, when the tide is at strongest. If your majesty be pleased to write to my Lord Coke, that you would have the business of the "Rege inconsulto" receive a hearing, when he should be "animo sedato et libero," and not in the midst of his assiduous and incessant cares and industries

Against the Star Chamber, for levying damages.

in other practices, I think your majesty shall do 4. Against the admi-
your service right. Howsoever, I will be provided
against the day.

Thus praying God for your happy preserva

* John Carey, Baron of Hunsdon. He died in April,

1617.

ralty.

In this he prevailed, and the commission was pared, and namely the point of alimony left out, whereby wives are left wholly to the tyranny of their husbands. This point, and some others, may require a review, and is fit to be restored to the commission.

In this he prevaileth in such sort, as the prececents are continually suitors for the enlargement of the instructions, sometimes in one point, sometimes in another; and the jurisdictions grow into contempt, and more would, if the lord chancellor did not strengthen them by injunctions, where they exceed not their instructions.

In this he was overruled by the sentence of the court; but he bent all his strength and wits to have prevailed; and so did the other judges by long and laborious arguments: and if they had prevailed, the authority of the court had been overthrown. But the plurality of the court toook more regard to their own precedents, than to the judges' opinion.

In this he prevaileth, for prohibitions fly continually; and many times are cause of long

*This paper was evidently designed against the Lord Chief Justice Coke.

VOL. II.-65

SIR FRANCIS BACON TO SIR GEORGE
VILLIERS.

Touching the examination of Sir Robert Cotton upon some information of Sir John Digby.*

may be again propoun- majesty's service, as is fit. Howbeit, for so much
ed upon a conference as did concern the practice of conveying the
of the judges.
prince into Spain, or the Spanish pensions, he
was somewhat reserved upon this ground, that
they were things his majesty knew, and things,
which by some former commandment from his
majesty he was restrained to keep in silence, and
that he conceived they could be no ways applied
to Somerset. Wherefore it was not fit to press
him beyond that, which he conceived to be his
warrant, before we had known his majesty's
farther pleasure; which I pray you return unto
us with all convenient speed. I for my part am
in no appetite for secrets; but, nevertheless, see-
ing his majesty's great trust towards me, wherein I
shall never deceive him; and that I find the
chancellor of the same opinion, I do think it were
good my lord chancellor chiefly and myself were
made acquainted with the persons and the parti-
culars; not only because it may import his ma-
jesty's service otherwise, but also because to my
understanding, for therein I do not much rely
may have a
upon Sir John Digby's judgment, it
great connection with the examination of Somer-
set, considering his mercenary nature, his great
undertaking for Spain in the match, and his
favour with his majesty; and therefore the circum-
stances of other pensions given cannot but tend
to discover whether he were pensioner or no.

I RECEIVED your letter yesterday towards the evening, being the 8th of this present, together with the interrogatory included, which his majesty hath framed, not only with a great deal of judgment what to interrogate, but in a wise and apt order; for I do find that the degrees of questions are of great efficacy in examination. I received also notice and direction by your letter, that Sir Robert Cotton was first thoroughly to be examined; which indeed was a thing most necessary to begin with; and that for that purpose Sir John Digby was to inform my lord chancellor of such points, as he conceived to be material; and that I likewise should take a full account for my lord chief justice of all Sir Robert Cotton's precedent examinations. It was my part then to take care, that that, which his majesty had so well directed and expressed, should be accordingly performed without loss of time. For which purpose, having soon after the receipt of your letter received a letter from my lord chancellor, that he appointed Sir John Digby to be with him at two of the clock in the afternoon, as this day, and required my presence, I spent the mean time, being this forenoon, in receiving the precedent examinations of Sir Robert Cotton from my lord chief justice, and perusing of them; and accordingly attended my lord chancellor at the hour appointed, where I found Sir John Digby.

At this meeting it was the endeavour of my lord chancellor and myself to take such light from Sir John Digby, as might evidence first the examination of Sir Robert Cotton; and then to the many examinations of Somerset; wherein we found Sir John Digby ready and willing to discover unto us what he knew; and he had also, by the lord chancellor's direction, prepared some heads of examination in writing for Sir Robert Cotton; of all which use shall be made for his

Secretary Winwood, in a private letter to Sir Thomas Edmondes, printed in the Historical View of the Negotiations between the Courts of England, France, and Brussels, p. 392, mentions, that there was great expectation, that Sir John Digby, just then returned from Spain, where he had been ambassador, could charge the Earl of Somerset with some treasons and plots with Spain. "To the king," adds Sir Ralph, "as yet he hath used no other language, but that, having served in a

place of honour, it would ill become him to be an accuser. Legally or criminally he can say nothing: yet this he says and hath written, that all his private despatches, wherein he most discovered the practices of Spain, and their intelligences, were presently sent into Spain; which could not be but by

the treachery of Somerset.'

"

But herein no time is lost; for my lord chancellor, who is willing, even beyond his strength, to lose no moment for his majesty's service, hath appointed me to attend him Thursday morning for the examination of Sir Robert Cotton, leaving tomorrow for council-business to my lord, and to me for considering of fit articles for Sir Robert Cotton.

10 April, 1616.

SIR FRANCIS BACON TO THE JUDGES. MY LORD,

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 further 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 lord- and it may be he will be in the better temper,

ship to God's goodness.

Your loving friend to command,

This Thursday, at afternoon,

the 25th of April, 1616.

FR. BACON.

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?

Whether, if there should be twelve votes to condemn, and twelve or thirteen to acquit, it be not a verdict for the king?

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's will to save his life, the people will be

so set on fire.

Endorsed,

Memorial touching the course to be had in my
Lord of Somerset's arraignment.

THE HEADS OF THE CHARGE AGAINST ROBERT,
EARL OF SOMERSET.

QUESTIONS OF CONVENIENCE, WHEREUPON Apostyle of the

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;

* See ante, page 321.

king.

Ye will doe well to remember lyke

wayes in your signe, that the onpræamble, that inly zeal to justice maketh me take this course. I have commandit

you

FIRST it is meant, that Somerset shall not be charged with any thing by way of ag

gravation, otherwise than as conduceth to the proof of the impoisonment.

For the proofs themselves, they are distributed into four :

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 prevail upon the earl to submit to be tried, and to keep him in Sir Francis Bacon in particular, as appears from his letters, to temper during his trial, lest he, as the king expressed it in an apostile 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. Mallet's Life of the Lord Chancellor Bacon, who closes his remarks with a reference to a letter of Somerset to the king, printed in the Cabala, and written in a high style of some expressions, that there was an important secret in his of expostulation, and showing, through the affected obscurity keeping, of which his majesty dreaded a discovery. The ear! and his lady were released from their confinement in the leaving one daughter, Anne, then sixteen years of age, afterTower in January, 1621-2, the latter dying August 23, 1632, wards 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.

ot to expatiate, nor digresse upon any other points, that maye not serve clearlie for proba

tion or inducement of that point, quhairof he is accused.

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, etc.

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.

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 would 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?" etc.

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."

| 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 show likewise what 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 Julius 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 Unclius ; 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.

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, etc. Apostyle of the king.

This evidence
cannot be given in
without making
me his accuser,
and that upon
a very slight
ground. As for
all the subsequent
evidences, they are
all so little evident,

as una litura may
serve thaime all.

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 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 merset, and de

Nothing to So

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 par