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THE

CHARGE* BY WAY OF EVIDENCE,

■T

SIR FRANCIS BACON, KNIGHT,

HIS MAJESTY'S ATTORNEY-GENERAL,

BEFORE THE LORD HIGH STEWARD AND THE PEERS ;t

AGAINST

FRANCES, COUNTESS OF SOMERSET,

CONCERNING THE POISONING OF SIR THOMAS OVERBURY. IT MAT PLEASE TOUR GRACE, MY LORD HIGH STEWARD OF ENGLAND, AND YOU MY LORDS THE PEERS;

I Am very glad to hear this unfortunate lady doth take tilis course, to confess fully and freely, and thereby to give glory to God and to justice. It is, as "I may term it, the nobleness of an offender to confess: and therefore those meaner persons, upon whom justice passed before, confessed not; she doth. I know your lordships cannot behold her without compassion: many things may move you, her youth, her person, her sex, her noble family j yea, her provocations, if I should enter into the cause itself, and furies about her; but chiefly her penitency and confession. But justice is the work of this day; the mercy-seat was in the inner part of the temple; the throne is public. But since this lady hath by her confession prevented my evidence, and your verdict, and that this day's labour is eased; there resteth, in the legal proceeding, but for me to pray that her confession may be recorded, and judgment thereupon.

But because your lordships the peers are met, and that this day and to-morrow are the days that crown all the former justice; and that in these great cases it hath been ever the manner to respect honour and satisfaction, as well as the ordinary parts and forms of justice; the occasion itself admonisheth me to give your lordships and the hearers this contentment, as to make declaration of the proceedings of this excellent work of the king's justice, from the beginning to the end.

It may please your Grace, my lord high steward of England: this is now the second time, within the space of thirteen years' reign of our happy sovereign, that this high tribunal-seat, ordained for the trial of peers, hath been opened and erected, and that with a rare event, supplied and exercised by one and the same person, which is a great honour unto you, my lord steward.

• Given May 2-1, 161G.

t The lord chancellor Egcrton, lord Ellesmere. and earl of Bridgwater.

In all this mean time the king hath reigned in his white robe, not sprinkled with any one drop of the blood of any of his nobles of this kingdom. Nay, such have been the depths of his mercy, as even those noblemen's bloods, against whom the proceeding was at Winchester, Cobham and Grey, were attainted and corrupted, but not spilt or taken away; but that they remained rather spectacles of justice in their continual imprisonment, than monuments of justice in the memory of their suffering.

It is true that the objects of his justice then and now were very differing: for then it was the revenue of an offence against his own person and crown, and upon persons that were malcontents, and contraries to the state and government; but now it is the revenge of the blood and death of a particular subject, and the cry of a prisoner; it is upon persons that were highly in his favour; whereby his Majesty, to his great honour, hath showed to the world, as if it were written in a sun-beam, that he is truly the lieutenant of Him with whom there is no respect of persons; that his affections royal are above his affections private; that his favours and nearness about him are not like popish sanctuaries, to privilege malefactors; and that his being the best master in the world doth not let him from being the best king in the world. His people, on the other side, may say to themselves, I will lie down in peace, for God, the king, and the law, protect me against great and small. It may be a discipline also to great men, especially such as are swoln in their fortunes from small beginnings, that the king is as well able to level mountains, as to fill valleys, if such be their desert.

But to come to the present case: The great frame of justice, my lords, in this present action, hath a vault, and hath a stage; a vault, wherein these works of darkness were contrived; and a stage, with steps, by which it was brought to light.

For the former of these, I will not lead your lordships into it, because I will engrieve nothing against a penitent; neither will I open any thing against him that is absent. The one I will give to the laws of humanity, and the other to the laws of justice; for I shall always serve my master with a good and sincere conscience,and I know that he accepteth best. Therefore 1 will reserve that till to-morrow, and hold myself to that which I called the stage or theatre, whereunto indeed it. may be fitly compared: for that things were first contained within the invisible judgments of God, as within a curtain, and after came forth, and were acted most worthily by the king, and right well by his ministers.

Sir Thomas Overbury was murdered by poison, September 15, 1613. This foul and cruel murder did for a time cry secretly in the ears of God; but God gave no answer to it, otherwise than by that voice, which sometimes he useth, w7hich is vox poputi, the speech of the people: for there went then a murmur that Overbury was poisoned; Bnd yet the same submiss and low voice of God, the speech of the vulgar people, was not without a counter-tenor or counter-blast of the devil, who is the common author both of murder and slander; for it was given out that Overbury was dead of a foul disease; and his body, which they had made corpua Judaicum with their poisons, so as it had no whole part, must be said to be leprosied with vice, and so his name poisoned as well as his body. For as to dissoluteness, I have not heard the gentleman noted with it; his faults were of insolency, turbulency, and the like of that kind.

Meantime there was some industry used, of which I will not now speak, to lull asleep those that were the revengers of the blood, the father and the brother of the murdered. And in these terms things stood by the space of two years, during which time God did so blind the two great procurers, and dazzle them with their greatness, and blind and nail fast the actors and instruments with security upon their protection, as neither the one looked about them, nor the other stirred or fled, or were conveyed away, but remained here still, as under a privy arrest of God's judgments; insomuch as Franklin, that should have been sent over to the Palsgrave with good store of money, was, by God's providence and the accident of a marriage of his, diverted and stayed.

But about the beginning of the progress the last summer, God's judgments began to come out of their depths. And as the revealing of murder is commonly such as a man said, " a Domino hoc factum est; it is God's work, and it is marvellous in our eyes:" so in this particular it was most admirable; for it came forth first by a compliment, a matter of courtesy. My lord of Shrewsbury, that is now with God, recommended to a counsellor of state, of special trust by his place, the late lieutenant Helwisse,* only for acquaintance, as an honest and worthy gentleman, and desired him to know him, and to be acquainted with him. That counsellor

♦ Called in Sir H. Wottnn's Reliq. p. 413. Elvis. In Sir A. Wcldcu's Court of K. James, p. 107. Elwaies. In Aulic.

answered him civilly, that my lord did him a favour, and that he should embrace it willingly; but he must let his lordship know, that there did lie a heavy imputation upon that gentleman, Helwisse; for that Sir Thomas Overbury, his prisoner, was thought to have come to a violent and an untimely death. When this speech was reported back by my lord of Shrewsbury to Helwisse, "percussit illico animum," he was strticken with it: and being a politic man, and of likelihood doubting that the matter would break forth at one time or other, and that others might have the start of him, and thinking to make his own case by his own tale, resolved with himself upon this occasion to discover unto my lord of Shrewsbury, and that counsellor, that there was an attempt, whereunto he was privy, to have poisoned Overbury by the hands of his under-keeper Weston; but that he checked it, and put it by, and dissuaded it. But then he left it thus, that it was but as an attempt, or an untimely birth, never executed; and as if his own fault had been no more, but that he was honest and forbidding, but fearful of revealing and impeaching, or accusing great persons: and so with this fine point thought to save himself.

But that counsellor of estate, wisely considering that by the lieutenant's own tale it could not be simply a permission or weakness; for that Weston was never displaced by the lieutenant, notwithstanding that attempt; and coupling the sequel by the beginning, thought it matter fit to be brought before his Majesty, by whose appointment Helwisse set down the like declaration in writing.

Upon this ground the king playeth Solomon's part, "Gloria Dei celare rem, et gloria regis investigare rem," and sets down certain papers of his own hand, which I might term to be claves justitiee, keys of justice; and may serve both for a precedent for princes to imitate, and for a direction for judges to follow. And his Majesty carried the balance with a constant and steady hand, evenly and without prejudice, whether it were a true accusation of the one part, or a practice and factious scandal of the other: which writing, because I am not able to express according to the worth thereof, I will desire your lordships anon to hear read.

This excellent foundation of justice being laid by his Majesty's own hand, it was referred unto some counsellors to examine farther; who gained some degrees of light from Weston, but yet left it imperfect.

After it was referred to Sir Edward Coke, chief justice of the king's bench, as a person best practised in legal examinations; who took a great deal of indefatigable pains in it without intermission, having, as I have heard him say, taken at least three hundred examinations in this business.

But these things were not done in a corner, I need not speak of them. It is true that my lord chief justice, in the dawning and opening of the light, finding the matter touched upon these great persons, very discreetly became suitor to the king, to have greater persons than his own rank joined with him; where

Coquin. p. 111. Ellou-aies. In Sir W. Dugdale's Baron, of England, torn, ii p. -125. Elwayes. In Baker, p. 131. Yelvis.

upon your lordships, my lord high steward of England, my lord steward of the king's house, and my lord Zouch, were joined with him.

Neither wanted there, this while, practice to suppress testimony, to deface writings, to weaken the king's resolution, to slander the justice, and the like. Nay, when it came to the first solemn act of justice, which was the arraignment of Weston, he had his lesson to stand mute j which had arrested the whole wheel of justice. But this dumb devil, by the means of some discreet divines, and the potent charm of justice, together, was cast out. Neither did this poisonous adder stop his ear to these charms, but relented, and yielded to his trial.

Then followed the other proceedings of justice against the other offenders, Turner, Helwissc, Franklin.

But all these being but the organs and instruments of this fact, the actors, and not the authors, justice could not have been crowned without this last act against these great persons; else Weston's censure or prediction might have been verified, when he said, he hoped the small flies should not be caught, and the greater escape. Wherein the king, being in great straits between the defacing of his honour,

and of his creature, hath, according as he used to do, chosen the better part, reserving always mercy to himself.

The time also of justice hath had its true motions. The time until this lady's deliverance was due unto honour, Christianity, and humanity, in respect of her great belly. The time since was due to another kind of deliverance too; which was, that some causes of estate which were in the womb might likewise be brought forth, not for matter of justice, but for reason of state. Likewise this last procrastination of days had the like weighty grounds and causes.

But, my lords, where I speak of a stage, I doubt I hold you upon the stage too long. But before I pray judgment, I pray your lordships to hear the king's papers read, that you may see how well the king wns inspired, and how nobly he carried it, that innocency might not have so much as aspersion.

Frances, Countess of Somerset, hath been indicted and arraigned, as accessary before the fact, for the murder and impoisonment of Sir Thomas Ovcrburr, and hath pleaded guilty, and confesseth the indictment: I pray judgment against the prisoner.

THE CHARGE
OF SIR FRANCIS BACON, KNIGHT,

HIS MAJESTY'S ATTORNEY-GENERAL,
BY WAY OF EVIDENCE,

BEFORE THE LORD HIGH STEWARD, ANU THE PEERS,

AGAINST ROBERT, EARL OF SOMERSET,

CONCERNING THE POISONING OF OYERBURY.

It MAY PLEASE YOUII GRACE, MY LORD HIGH STEWARD OP ENGLAND, AND YOU, MY LORDS THE

You have here before you Robert earl of Somerset, to be tried for his life, concerning the procuring and consenting to the impoisonment of Sir Thomas Overbury, then the king's prisoner in the Tower of London, as an accessary before the fact.

I know your lordships cannot behold this nobleman, but you must remember his great favour with the king, and the great place that he hath had and borne, and must be sensible that he is yet of your number and body, a peer as you are; so that you cannot cut him off from your body but with grief; and therefore that you will expect from us, that give in the king's evidence, sound and sufficient matter of proof to satisfy your honours and consciences.

As for the manner of the evidence, the king our master, who among his other virtues excclleth in

that virtue of the imperial throne, which is justice, hath given us in commandment that we should not expatiate, nor make invectives, but materially pursue the evidence, as it conduceth to the point in question; a matter, that though we are glad of so good a warrant, yet we should have done of ourselves: for far be it from us, by any strains of wit or art, to seek to play prizes, or to blazon our names in blood, or to carry the day otherwise than upon just grounds. We shall carry the lanthorn of justice, which is the evidence, before your eyes upright, and to be able to save it from being put out with any winds of evasion or vain defences, that is our part; and within that we shall contain ourselves, not doubting at all, but that the evidence itself will carry •uch force as it shall need no vantage or aggravation.

My lords, the course which I will hold in delivering that which I shall say, for I love order, shall be this:

First, I will speak somewhat of the nature and greatness of the offence which is now to be tried; not to weigh down my lord with the greatness of it, but contrariwise to show that a great offence deserveth a great proof, and that the king, however he might esteem this gentleman heretofore, as the signet upon his finger, to use the Scripture phrase, yet in such case as this he was to put him off.

Secondly, I will use some few words touching the nature of the proofs, which in such a case are competent.

Thirdly, I will state the proofs.

Fourthly and lastly, I will produce the proofs, either out of examinations and matters of writing, or witnesses, viva voce.

For the offence itself, it is of crimes, next unto high treason, the greatest; it is the foulest of felonies. And take this offence with the circumstances, it hath three degrees or stages: that it is murder; that it is murder by impoisonment; that it is murder committed upon the king's prisoner in the Tower: I might say, that it is murder under the colour of friendship; but this is a circumstance moral; I leave that to the evidence itself.

For murder, my lords, the first record of justice that was in the world was a judgment upon n murderer in the person of Adam's first-born, Cain; and though it was not punished by death, but with banishment and mark of ignominy, in respect of the primogeniture, or population of the world, or other points of God's secret decree, yet it was judged, and was, as it is said, the first record of justice. 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 waa not forgotten. But of this I will say no more. It was ever admitted, and ranked in God's own tables, that murder is of offences between man and man, next unto treason and disobedience unto authority, which some divines have referred to the first table, because of the lieutenancy of God in princes.

For impoisonment, I am sorry it should be heard of in this kingdom: it is not " nostri generis nec sanguinis:" it is an Italian crime, fit for the court of Rome, where that person which intoxicateth the kings of the earth with his cup of poison, is many times really and materially intoxicated and impoisoned himself.

But it hath three circumstances, which make it grievous beyond other murders; whereof the first is, that it takes away a man in full peace, in God's and the king's peace; he thinketh no harm, but is comforting of nature with refection and food; so that, as the Scripture saith, " his table is made a snare."

The second is, that it is easily committed, and easily concealed; and on the other side, hardly prevented, and hardly discovered: for murder by violence, princes have guards, and private men have houses, attendants, and arms: neither can such mur

VOL. I. 2 z

der be committed but cum tonitu, and with some overt and apparent act that may discover and trace the offender. But as for poison, the cup itself of princes will scarce serve, in regard of many poisons that neither discolour nor distaste.

And the last is, because itconcerneth not only the destruction of the maliced man, but of any other; "Quis modo tutus erit?" for many times the poison is prepared for one, and is taken by another: so that men die other men's deaths; "concidit infelix alieno vulnere:" and it is, as the Psalm calleth it, "sagitta nocte volens; the arrow that flieth by night;" it hath no aim or certainty.

Now for the third degree of this particular offence, which is, that it was committed upon the king's prisoner, who was out of his own defence, and merely in the king's protection, and for whom the king and state was a kind of respondent; it is a thing that aggravates the fault much. For certainly, my lord of Somerset, let me tell you this, that Sir Thomas Overbury is the first man that was murdered in the Tower of London, since the murder of the two young princes. Thus much of the offence, now to the proof.

For the nature of the proofs, your lordships must consider, that impoisonment of all offences is the most secret; so secret, as that if in all cases of impoisonment you should require testimony, you were as good proclaim impunity.

Who could have impeached Livia, by testimony, of the impoisoning figs upon the tree, which her husband was wont to gather with his own hands?

Who could have impeached Parisatis for the poisoning of one side of the knife that she carved with, and keeping the other side clean; so that herself did eat of the same piece of meat that the lady did that she did impoison? The cases are infinite, and need not to be spoken of, of the secrecy of impoisonments; but wise triers must take upon them, in these secret cases, Solomon's spirit, that where there could be no witnesses, collected the act by the affection.

But yet we arc not to come to one case: for that which your lordships are to try is not the act of impoisonment, for that is done to your hand; all the world by law is concluded to say, that Overbury was impoisoned by Weston.

But the question before you is of the procurement only, and of the abetting, as the law termeth it, as accessary before the fact: which abetting is no more but to do or use any act or means, w hich may aid or conduce unto the impoisonment.

So that it is not the buying or making of the poison, or the preparing, or confecting, or commixing of it, or the giving or sending or laying the poison, that are the only acts that do amount unto abetment. But if there be any other act or means done or used to give the opportunity of impoisonment, or to facilitate the execution of it, or to stop or divert any impediments that might hinder it, and this be with an intention to accomplish and achieve the impoisonment; all these are abetments, and accessaries before the fact. I will put you a familiar example. Allow there be a conspiracy to murder a man as he journeys by the way, and it be one man's part to draw him forth to that journey by invitation, or by colour of some business; and another takes upon him to dissuade some friend of his, whom he had a purpose to take in his company, that he be not too strong to make his defence; and another hath the part to go along with him, and to hold him in talk till the first blow be given: all these, my lords, without scruple, are abettors to this murder, though none of them give the blow, nor assist to give the blow.

My lords, he is not the hunter alone that lets slip the dog upon the deer, but he that lodges the deer, or raises him, or puts him out, or he that sets a toil that he cannot escape, or the like.

But this, my lords, little needeth in this present case, where there is such a chain of acts of impoisonment as hath been seldom seen, and could hardly have been expected, but that greatness of fortune maketh commonly grossness in offending.

To descend to the proofs themselves, I shall keep this course.

First, I will make a narrative or declaration of the fact itself.

Secondly, I will break and distribute the proofs as they concern the prisoner.

And thirdly, according to that distribution, I will produce them, and read them, or use them.

So that there is nothing that I shall say, but your lordship, my lord of Somerset, shall have three thoughts or cogitations to answer it: First, when I open it, you may take your aim. Secondly, when I distribute it, you may prepare your answers without confusion. And lastly, when I produce the witnesses or examinations themselves, you may again ruminate and re-advise how to make your defence. And this I do the rather, because your memory or understanding may not be oppressed or overladen with the length of evidence, or with confusion of order. Nay more, when your lordship shall make your answers in your time, I will put you in mind, when cause shall be, of your omissions.

First, therefore, for the simple narrative of the fact. Sir Thomas Overbury for a time was known to have had great interest and great friendship with my lord of Somerset, both in his meaner fortunes, and after: insomuch as he was a kind of oracle of direction unto him; and, if you will believe his own vaunts, being of an insolent Thrasonical disposition, he took upon him, that the fortune, reputation, and understanding of this gentleman, who is well known to have had a better teacher, proceeded from his company and counsel.

And this friendship rested not only in conversation and business of court, but likewise in communication of secrets of estate. For my lord of Somerset, at that time exercising, by his Majesty's special favour and trust, the office of the secretary provisionally* did not forbear to acquaint Overbury with the king's packets of despatches from all parts, Spain, France, the Low Countries, &c. And this not by glimpses, or now and then rounding in the ear for a favour, but in a settled manner: packets were sent, sometimes opened by my lord, sometimes unbroken,

unto Overbury, who perused them, copied, registered them, made tables of them as he thought good: so that, I will undertake, the time was when Overbury knew more of the secrets of state than the counciltable did. Nay, they were grown to such an inwardness, as they made a play of all the world besides themselves: so as they had ciphers and jargons for the king, the queen, and all the great men; tilings seldom used but either by princes and their ambassadors and ministers, or by such as work and practise against, or at least upon, princes.

But understand me, my lord, I shall not charge you this day with any disloyalty; only I say this for a foundation, that there was a great communication of secrets between you and Overbury, and that it had relation to matters of estate, and the greatest causes of this kingdom.

But, my lords, as it is a principle in nature, that the best things are in their corruption the worst, and the sweetest wine makes the sharpest vinegar; so fell it out with them, that this excess, as I may term it, of friendship ended in mortal hatred on my lord of Somerset's part.

For it fell out, some twelve months before Overbury's imprisonment in the Tower, that my lord of Somerset was entered into an unlawful love towards his unfortunate lady, then countess of Essex; which went so far, as it was then secretly projected, chiefly between my lord privy seal and my lord of Somerset, to effect a nullity in the marriage with my lord of Essex.and so to proceed to a marriage with Somerset.

This marriage and purpose did Overbury mainly oppugn, under pretence to do the true part of a friend ; for that he counted her an unworthy woman: but the truth was, that Overbury, who, to speak plainly, had little that was solid for religion or moral virtue, but was a man possessed with ambition and vain-glory, was loth to have any partners in the favour of my lord of Somerset, and especially not the house of the Howards, against whom he had always professed hatred and opposition: so all was but miserable bargains of ambition.

And, my lords, that this is no sinister construction, will well appear unto you, when you shall hear that Overbury makes his brags to my lord of Somerset, that he had won him the love of the lady by his letters and industry: so far was he from cases of conscience in this matter. And certainly, my lords, howsoever the tragical misery of that poor gentleman Overbury ought somewhat to obliterate his faults j yet because we are not now upon point of civility, but to discover the face of truth to the face of justice; and that it is material to the true understanding of the state of this cause; Overbury was naught and corrupt, the ballads must be amended for that point.

But to proceed; when Overbury saw that he was like to be dispossessed of my lord here, whom he had possessed so long, and by whose greatness he had promised himself to do wonders; and being a man of an unbounded and impetuous spirit, he began not only to dissuade, but to deter him from that love and marriage; and finding him fixed, thought to try stronger remedies, supposing that he had my

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