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fort) which was the charge that his majesty gave to himself first, and afterwards to the commissioners in this case, worthy certainly to be written in letters of gold, wherein his majesty did fore-rank and make it his prime direction, that it should be carried without touch to any that was innocent; nay more, not only without impeachment, but without aspersion: whith was a most noble and princely caution from his majesty; for men's reputations are tender things, and ought to be like Christ's coat, without seam. And it was the more to be respected in this case, because it met with two great persons; a nobleman that is majesty had favoured and advanced, and his lady being of a great and honourable house: though I think it be true, that the writers say, that there is no pomegranate so fair or so sound, but may have a perished kernel. Nay, I see plainly, that in those excellent papers of his majesty's own hand-writing, being as so many beams of justice issuing from that virtue which doth shine in him; I say, I see it was so evenly carried without prejudice, (whether it were a true accusation of the one part, or a practice of a false accusation on the other) as shewed plainly that his majesty's judgment was tanquam tabula rasa,' as a clean pair of tables, and his ear tanquam janua aperta,' as a gate not side open, but wide open to truth, as it should be by little and little discovered. Nay, I see plainly, that at the first (till farther light did break forth) his majesty was little moved with the first tale, which he vouchsafeth not so much as the name of a tale; but calleth it a rumour, which is an headless tale.

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As for the strength or resolution of his majesty's justice, I must tell your lordships plainly: I do not marvel to see kings thunder out justice in cases of treason, when they are touched themselves; and that they are vindices do'loris proprii :' but that a king should pro amore justitiæ' only, contrary to the tide of his own affection, for the preservation of his people, take such care of a cause of justice, that is rare, and worthy to be celebrated far and near. For, I think, I may truly affirm, that there was never in this kingdom, nor in any other kingdom, the blood of a private gentleman vindicated, cum tanto motu regni,' or to say better, cum tanto plausu regni.-If it had concerned the king or prince, there could not have been greater nor better commissioners to examine it. The term hath been almost turned into a justitium, or vacancy; the peaple themselves being more willing to be lookerson in this business, than to follow their own There hath been no care of discovery omitted, no moment of time lost. And therefore I will conclude this part with the saying of Solomon, Gloria Dei celare rem, et gloria regis scrutari 'rem.' And bis majesty's honour is much the greater, for that he hath shewed to the world in this business, as it hath relation to my lord of Somerset, (whose case in no sort I do prejudge, being ignorant of the secrets of the cause, but taking him as the law takes him bitherto,

VOL. II,

for a suspect) I say, the king hath to his great honour shewed, that were any man in such a case of blood, as the signet upon his right hand, (as the scripture says) yet would he pull him off.

Now will I come to the particular charge of these gentlemen, whose qualities and persons I respect and love; for they are all my particular friends: but now I can only do this duty of a friend to them, to make them know their fault to the full.

And therefore, first, I will by way of narrative declare to your lordships the fact, with the occasion of it; then you shall have their confessions read, upon which you are to proceed, together with some collateral testimonies by way of aggravation: and lastly, I will note and observe to your lordships, the material points which I do insist upon for their charge, and so leave them to their answer. And this I will do very briefly, for the case is not perplexed.

That wretched man Weston, who was the actor or mechanical party in this impoisonment, at the first day being indicted by a very substantial jury of selected citizens, to the number of nineteen, who found billa vera, yet nevertheless at the first stood mute; but after some days intermission, it pleased God to cast out the dumb devil, and that he did put himself upon his trial; and was by a jury also of great value, upon his confession, and other testimonies, found guilty: so as thirty-one sufficient jurors have passed upon him. Whereupon judgment and execution was awarded against him. After this, being in preparation for another world, he sent for sir Thomas Overbury's father, and falling down upon his knees, with great remorse and compunction, asked him forgiveness. Afterwards, again, of his own motion, desired to have his like prayer of forgiveness recommended to his mother, who was absent. And at both times, out of the abundance of his heart, confessed that he was to die justly, and that he was worthy of death. And after, again, at his execution (which is a kind of sealing-time of confessions), even at the point of death, (although there were tempters about him, as you shall bear by and bye) yet he did again confirm publickly, that his examinations were true, and that he had been justly and honourably dealt with. Here is the narrative which induceth the charge. The charge itself is this:

Mr. Lumsden, whose offence stands alone single (the offence of the other two being in consort; and yet all three meeting in their end and center, which was to interrupt or deface this excellent piece of justice :) Mr. Lumsden, I say, mean while, between Weston's standing mute and his trial, takes upon him to make a most false, odious, and libellous relation, containing as many untruths as lines, and sets it down in writing with his own hand, and delivers it to Mr. Henry Gibb, of the bed-chamber, to be put into the king's hand; in which writing he doth falsify and pervert all that was done the first day at the arraignment of Weston;

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turning the pike and point of his imputations | Weston did poison Overbury or no? A contraprincipally upon my lord chief justice of England, whose name (thus occurring) I cannot pass by, and yet I cannot skill to flatter. But this I will say of him, and I would say as much to ages, if I should write a story; that never man's person and his place were better met in a business, than my lord Coke and my lord chief justice, in the cause of Overbury.

Now, my lords, in this offence of Mr. Lumsden's, for the particulars of these slanderous articles, I will observe them unto you when the writings and examinations are read; for I do not love to set the gloss before the text. But in general I note to your lordships, first, the person of Mr. Lumsden: I know he is a Scots gentleman, and thereby more ignorant of our laws and forms: But I cannot tell whether this doth extenuate his fault in respect of ignorance, or aggravate it much, in respect of presumption; that he would meddle in that that he understood not but I doubt it came not out of his quiver; some other man's cunning wrought upon this man's boldness. Secondly, I may note unto you the greatness of the cause, wherein he being a private, mean gentleman, did presume to deal. Mr. Lumsden could not but know to what great and grave commissioners the king had committed this cause; and that his majesty in his wisdom would expect return of all things from them to whose trust he had committed this business. For it is the part of commissioners, as well to report the business, as to manage the business; and then his majesty might have been sure to have had all things well weighed, and truly informed: and therefore it should have been far from Mr. Lumsden to have presumed to put forth his hand to so high and tender a business, which was not to be touched but by employed hands. Thirdly, I note to your lordships, that this infusion of a slander into a king's ear, is of all forms of libels and slanders the worst. It is true, that kings may keep secret their informations; and then no man ought to enquire after them, while they are shrined in their breast. But where a king is pleased that a man shall answer for his false information; there, I say, the false information to a king exceeds in of fence the false information of any other kind; being a kind (since we are in matter of poison) of imprisonment of a king's ear. And thus much for the offence of Mr. Lumsden.

For the offence of sir John Wentworth and sir John Hollis, which I said was in consort, it was shortly this: At the time and place of the execution of Weston, to supplant his Christian resolution, and to scandalize the justice already past, and perhaps to cut off the thread of that which is to come; these gentlemen, with others, caine mounted on horseback, and in a ruffling and facing manner, put themselves forward to re-examine Weston upon questions: and what questions? Directly cross to that that had been tried and judged; for what was the point tried? That Weston had poisoned Overbury. What was sir John Wentworth's question; whether

dictory directly: Weston answered only, that he did him wrong; and turning to the sheriff said, You promised me I should not be troubled at this time. Nevertheless, he pressed him to answer; saying, he desired to know it, that he might pray with him. I know not that sir John Wentworth is an Ecclesiastick, that he should cut any man from the communion of prayer. And yet for all this vexing of the spirit of a poor man, now in the gates of death, Weston nevertheless stood constant, and said, I die not unworthily my lord chief justice hath my mind under my hand, and he is an honourable and just judge. This is sir John Wentworth's offence.

For Sir John Hollis, he was not so much a questionist; but wrought upon the other's questions, and, like a kind of confessor, wished him to discharge his conscience, and to satisfy the world. What world? I marvel! It was sure the world at Tyburn. For the world at GuildHall, and the world at London, was satisfied before; teste the bells that rung. But men have got a fashion now-a-days, that two or three busy-bodies will take upon them the name of the world, and broach their own conceits, as if it were a general opinion. Well, what more? When they could not work upon Weston, then sir John Hollis in an indignation turned about his horse (when the other was turning over the ladder) and said, he was sorry for such a conclusion; that was to have the state honoured or justified but others took and reported his words in another degree: but that I leave, seeing it is not confessed.

Sir John Hollis's offence had another appendix, before this in time; which was, that at the day of the verdict given by the jury, he also would needs give his verdict, saying openly, that if he were of the jury, he would doubt what to do. Marry (he saith), he cannot tell well whether he spake this before the jury had given up the verdict, or after; wherein this is little gained. For whether sir John Hollis were a pre-juror or a post-juror, the one was to prejudge the jury, the other as to taint them.

Of the offence of these two gentlemen in general, your lordships must give me leave to say, that it is an offence greater and more dangerous than is conceived. I know well, that as we have no Spanish inquisitions, nor justice in a corner; so we have no gagging of men's mouths at their death, but that they may speak freely at the last hour; but then it must come from the free motion of the party, not by temptation of questions. The questions that are to be asked, ought to tend to farther revealing of their own or others guiltiness; but to use a question in the nature of a false interrogatory, to falsify that which is res judicata, is intolera ble. For that were to erect a court or commis sion of review at Tyburn, against the King's Bench at Westminster. And besides, it is a thing vain and idle: for if they answer accord ing to the judgment past, it adds no credit: or if it be contrary, it derogateth nothing: But

yet it subjecteth the majesty of justice to popular and vulgar talk and opinion.

My lords, these are great and dangerous of fences; for if we do not maintain justice, justice will not maintain us.

But now your lordships shall hear the Examinations themselves. Hereupon the Examinations were read.

Mr. Lumsden for Answer to this charge said, that himself was not at the arraignment, but what he had spoken, or set down in writing, he had received of many in common discourse; who being now demanded to justify the same, do deny it; and therefore he would confess that which was written was false. He pleaded ignorance of the law, and that he did it without any purpose of prejudice to the public business, but only as he conceived out of duty; and because he had always lived as a gentleman, he would not so much degenerate from himself and his birth, nor so much offend against human society, as to become a base accuser; but would submit himself and his offence to the censure of the court, and to the favourable interpretation of their lordships.

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doubt what to do; and this he confessed, as a man perhaps more trickish and curious to give his verdict or judgment of life or death than others: and if a bare word of his opinion drawn by discourse (he being but a stander-by in this business) be to be censured, I appeal to your judgments. His second offence was for giving of counsel, and asking questions of Weston at the execution. He said, he confest he was there, but carried with a general desire which he had to see the execution, as he had done in many like cases before. And he had formerly seen that it was a common thing for men standers-by to ask questions of those that were to be executed and now many asking this question of the fact of Weston, and he answering in general terms, I die not unworthily; he also, among many others, did ask him the question (as hath been opened;) which was not purposed of him when he came thither, but was occasioned by reason of one that stood behind him at the gallows, who said to Weston, that he should confess the truth of this fact, for if he had had his right, he had been hanged 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 his offence farther; yet he charge against him, that though he carried the would tell him, that in criminal causes whoso- seal of a good conscience 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 he hoped their lordships would take the laws tell him, that he was the author himself.bird by the body and not by the feathers: his This kind of slandering judges to kings and princes is common. Popham, a great judge in his time, was complained of by petition to queen Elizabeth; it was committed to four privy-counsellors; but the same was found to be slanderous, and the parties punished in the court. He likewise said, I may not admit of this new learning; I hold it not unworthy a gentleman to discharge his fault upon the first author; and by the law, the not doing thereof maketh him the first author; so he becomes a false accuser of himself.

Sir John Wentworth's answer was, that he would not willingly be conceived to speak more here than he had done heretofore. It was true, that he was at the execution of Weston, and did ask those questions touching the poisoning of sir Thomas Overbury; which he did on two reasons: the one was, because he bad seen others do the same at the same time, and especally one Parkes; and he thought he might do it as well as he. Another reason was, because he not being at the arraignment, and hearing that Weston had denied the fact, he was desirous to be satisfied of the truth from himself; yet he purposed not to ask any questions when he came thither; but if to ask questions of a man going to execution were offensive to the state, he did humbly submit to their lordship's

censures.

Sir John Hollis answered, that the matter declared against him contained three crimes. The first, that whereas at the first upon the indictment he should fore-judge the jury, by delivering his opinion; saying, that he should

speech, he said, might be well understood, but the worst end of it was turned towards him; he did but the part of a christian to persuade Weston to discharge his conscience, and intended not to controvert the law and justice that had passed on him. As for the testimony of Bearingborne, I know not what he is that hath deposed against me; but it seems he is some man of trade, against whom I think I may now put myself in opposition, that my denial may stand against his affirmation. In his youth some of your lordships know, that he [sir John Hollis] had spent some of his time in the wars and travel, and afterwards had lived in place at court, both in the time of queen Elizabeth, and his majesty eight years: he had served the late most worthy prince, the memory of whom, he said, did grieve him that he should plead his name at the bar, whom for the misery of this state it pleased God to take away; since whose death he had been as a fish out of the water. Thus much, he said, was pulled out of his mouth, by reason of his testimony produced against him; but he knew that not words but his cause must help him out of this mire. And therefore if their lordships had determined any thing against him for these offences, he did humbly submit himself to their honourable censures. The lord chancellor said, that this deposition of Bearingborne was not read but in explanation and aggravation, and not for evidence of condemnation against sir John Hollis.

Mr. Attorney replied upon sir John to this answer of his, that his speech to Weston was

dagger; yet the party is guilty, because the killing of a man is the point of the indictment; then he confessed the fact. And for this gentleman, Mr. Lumsden, a Scotish gentleman, a

occasional, and not resolved on before his coming to the execution; that it was new matter thought upon and devised since his being questioned for his offence; for there was never a word thereof spoken in this examina-nation than he loved well, (and to his majesty tion: and there this is the feather you spoke of, and not the body. Whereunto sir John Hollis answered, that they might very well stand together.

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both English and Scotish were equally dear) Scoti et Angli nullo discrimine, &c.' He that infuseth into his majesty's ears the least falshood concerning his judges unjustly, is like him that infuseth never so little copper into com; they both commit a kind of treason; and for the matter of it, which was informed, for qui non bene respondet, non respondet;' and a little to divert from this business, you, Mr. Luinsden, were a pandar to the earl of Somerset, and were his favourer in deed, but his follower in evil. Afflictio dat intellectum,' let your affliction now give you sense and feel ing of your sins; your service of a pandar is apparently to be shewed you by a letter under my lord of Somerset's own haud, and your answer to it. Let it then enter your heart and soul to assure yourself, that there is now no safety, protection, nor assurance, but under a religious faith in Jesus Christ; and that, ‘radix

of justice is piety. I confess I had a great suspicion out of whose quiver the murder came first; but because I had no certain proofs, I would never question them. This resolution of Weston to be mute, was very great. When he was persuaded by the bishop of London and Ely to plead, he would not: and after being promised that if he would speak, he should have a popish priest; he thereunto answered, Have I refused the godly persuasions of the bishop of London, and shall I answer to a popishi priest? And for your persuasions, Mr. Lumsden, that you will not be an accuser, this is a contemptuous answer; for this is not to be an accuser, being examined of another to discover him; but your refusal in this kind of answer is a manifest contempt: and for the like offence, a great lady of the land lieth now in the Tower, only for refusing to answer being examined.

Hereupon sir Edward Coke, the chief justice of the king's-Bench, pronounced the Sentence; when he said, that he would say of this business, and his dealing therein, as Abimelech said of himself, Tu scis, Domine, quod feci in sim'plicitate cordis et munditie manuum;' and therefore would also boldly affirm, that there | were none brought into question of this great business of poison, but such as in his soul and conscience were apparently guilty: He said he was no fit man for a common-place; yet he had found some records of poisoning which he would shew: as namely in the treasury 31 Ed. 3, as the king indeed had two treasuries, the one of records, the other of gold and silver; where a woman committed adultery, and after poisoned her husband. And 21 Edw. 1, Solo-justitia est pietas,' the foundation and root mon le Roch, a judge, was poisoned by a monk, who afterwards prayed to be delivered to the censure of the church; and he was denied, because the same was a wrong to the state to porson a judge. And it is to be observed in the first case, that poison and adultery go together; and on the second, that poison and popery go together. From Edward 3, down to 22 Henry 8, (which was a great lamp of time) no mention is made of poisoning any man; and then a statute was made, that those that did poison any body should be boiled to death, and were first to be put in at the tiptoes. In this business, he said, he would tell no news, but he was not yet at the root; God forbid that those kinds of offences should be unsearched and unpunished, wheresoever they are found: There are divers sorts of poisoning, by some whereof a man shall die a month or a quarter of a year after, at sic se sentiat mori;' and shall not know in what manner he is poisoned: as one Squire, a priest, should have poisoned queen Elisabeth by poisoning her saddle. This poisoning came first from popery. In this case of Weston he would never confess the indictment, because the indictment was, that he poisoned sir Thomas Overbury with arsenick, roseaker and mercury sublimate; whenas indeed it was not known what poison killed him. Here the poor man conceived a scruple, that if he did not know with which of the poisons Overbury was poisoned, he was not guilty of the offence laid in the indictment; and therefore said he was not guilty of the offence. Nowut obstruatur os iniqui,' that the mouth of the wicked man may be fully stopped; after that it was resolved unto him, that the manner of killing, laid in the indictinent, was not the point of the indictment, but the matter of killing; as if the indictment be, that a man was killed with a sword, whereas indeed he was killed with a

Quod diabolus ad malum exposuit, Deus ad 'bonum exposuit;' That which the devil exposeth to evil, God disposeth to good. This refusing to discover an offender, is a contempt to a master of a family; if he should command any of his servants to tell him of an offence committed, and by whom; and the servant that is so asked shall refuse to tell him, he shall be worthy of punishment: much more any subject being examined by the king's authority and commissioners, if he shall refuse to make discovery of the truth. The statute of the 1st and 2d of Rich. 2, is, that he that doth raise false news between the king and his nobles, shall be imprisoned for the space of a year; think fit that Mr. Lumsden's imprisonment should be for a year, and afterwards, until he should produce his author. As for sir John Hollis, his fault of questioning and counselling. it is very great, the same being made after a verdict; for if a man commit treason the 20th day of May, and sell his lands the 5th day, and

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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 after is found guilty of this indictment; 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 20thgion and justice; two of the main pillars of day, though it concern him for all that he hath of laying; if that he that is to be undone by a verdict shall not speak cross matter to a verdict (as the books of Ed. 3, and Ed. 1, are, and 11 Hen. 4, 53 Estophel. 137,) what shall be done to him that having no cause in a matter capital, wherein he had nothing to do, would intermeddle? For as the law saith, Turpis est admissio rei ad se non pertinentis.' Sir John said, that it hath been a custom to ask questions at those times, and that he did usually go to executions. For his own part, he said, that ever since he was a scholar, and had read those verses of Ovid, Trist. iii. 5.

Et lupus et vulpes instant morientibus

Et quæcunque minor nobilitate fera est,' he did never like it; and therefore, he said, he did marvel much at the use of sir John. Sir John answers here at the bar, and saith, that if any thing were determined against him, he did humbly submit himself thereto by which term so determining, he meant, I think, as if we did give our censures against him by conspiracy. For my own part, I talked with none other, nor I think did any of us one speak with other before we came together here. Peradventure he thinks, as some have thought, that all the carriage of this business is but a conspiracy against the earl of Somerset. He saith, he hath been since the prince's death but as a fish out of the water. I know not what he means by a fish out of the water I have heard that Clericus in oppido, tanquam piscis in arido,' a clerk in the town is like a fish out of the water he is a justice of peace, a commissioner of Oyer and Terminer; a man of fair lands, 1500l. per annum at the least; this money is enough to be a privy-counsellor and yet sir John Hollis is like a fish out of the water. know he hath travelled many countries, speaks many languages, hath seen many manners and customs, and knows much of foreign nations;

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the kingdom, and that in cold blood. Evidence is above eloquence; the party himself acknowledged that he died justly; and those that saw him said he died penitently: so to conclude, as it was sometime said of Rome, Et quæ tanta fuit Romam tibi causa videndi,' he might very well now say of sir John Hollis his going to Tyburn, with a little alteration of the words, Et quæ tanta fuit Tyburn tibi causa videndi. For the censure, he agreed with that which had been set; and the acknowledgment of Mr. Lumsden should be also in the court of Common-Pleas and the Exchequer, because the justice of all courts may be wronged with slanderous petitions. He moved that information might be made against the other gentlemen that were asking such questions as these were; and that they night receive their due punishment: he meant, he said, Mr. Sackvil, sir Thomas Vavasor, and sir Henry Vane, who would be a baron if attainders did not lie in the way: If these be not punished, these gentlemen will think that they have wrong; for 'quæ mala cum multis patimur leviora vi'dentur.' He said he would wish gentlemen to take heed how they fell into discourses of these businesses, when they be at their chanbers; for in the proceeding of these great businesses and affairs, if a man speak irreverently of the justice thereof, the bird that hath wings will reveal it.

The Sentence was fine, imprisonment, and submission, as followeth :

Lumsden fined 2,000 marks, imprisoned in the Tower for a whole year, and after until he shall, at the King's-bench bar, submit himself and confess his fault, and also produce his authors.

Sir John Hollis was fined 1,000l. imprisoned in the Tower for the space of a year.

Sir John Wentworth fined 1,000 marks, imprisoned in the Tower for a year; and both to 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

Attorney-general.

My lords; I thought it fit for my place, and for these times, to bring to hearing before your lordships some cause touching private Duels, to see if this court can do any good to tame and reclaim that evil, which seems unbridled. And I could have wished that I had met with some greater persons, as a subject for your

censure; both because it had been more worthy of this presence, and also the better to have shewed the resolution myself hath to proceed without respect of persons in this business. But finding this cause on foot in my predecessor's time, and published and ready for heariug, I thought to lose no time in a mischief that groweth every day: and besides, it passes not amiss sometimes in government, that the greater sort be admonished by an example made in the

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