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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 lord's head under his girdle, in respect of communication of secrets of estate, or, as he calls them himself in his letters, secrets of all natures; and therefore dealt violently with him, to make him desist, with menaces of discovery of secrets, and the like.
Hereupon gTew two streams of hatred upon Overbury; the one, from the lady, in respect that he crossed her love, and abused her name, which are furies to women; the other, of a deeper and more mineral nature, from my lord of Somerset himself; who was afraid of Overbury's nature, and that if he did break from him and fly out, he would mine into him and trouble his whole fortunes.
I might add a third si ream from the earl of Northampton's ambition, who desires to be first in favour with my lord of Somerset; and knowing Overbury's malice to himself and his house, thought that man must be removed and cut off. So it was amongst them resolved and decreed that Overbury must die.
Hereupon they had variety of devices. To send him beyond sea, upon occasion of employment, that was too weak; and they were so far from giving way to it, as they crossed it. There rested but two ways, quarrel or assault, and poison. For that of assault, after some proposition and attempt, they passed from it; it was a thing too open, and subject to more variety of chances. That of poison likewise was a hazardous thing, and subject to many preventions and cautions; especially to such a jealous and working brain as Overbury had, except he were first fast in their hands.
Therefore the way was first to get him into a trap, and lay him up, and then they could not miss the mark. Therefore in execution of this plot it was devised, that Overbury should be designed to some honourable employment in foreign parts, and should under-hand by the lord of Somerset be encouraged to refuse it; and so upon that contempt he should be laid prisoner in the Tower, and then they would look he should be close enough, and death should be his bail. Yet were they not at their end. For they considered that if there was not a fit lieutenant of the Tower for their purpose, and likewise a fit under-keeper of Overbury; first, they should meet with many impediments in the giving and exhibiting the poison. Secondly, they should be exposed to note and observation that might discover them. And thirdly, Overbury in the mean time might write clamorous and furious letters to other his friends, and so all might be disappointed. And therefore the next link of the chain was to displace the then lieutenant Waade, and to place Helwisse, a principal abettor in the impoisonment: again, to displace Gary, that was the under-keeper in Waade's time, and to place Weston, who was the principal actor in the impoisonment: and this was done in such a while, that it may appear to be done, as it were, with one breath, as there were but fifteen days between the commitment of Overbury, the displacing of Waade, the placing of Helwisse, the displacing cf Cary the under-keeper, the placing of Weston, and the first poison given two days after.
Thus when they had this poor gentleman in the Tower close prisoner, where he could not escape
nor stir, where he could not feed but by their hands, where he could not speak nor write but through their trunks; then was the time to execute the last act of this tragedy.
Then must Franklin be purveyor of the poisons, and procure five, six, seven several potions, to be sure to hit his complexion. Then must Mrs. Turner be the say-mistress of the poisons to try upon poor beasts, what is present, and what works at distance of time. Then must Weston be the tormentor, and chase him with poison after poison; poison in salts, poison in meats, poison in sweetmeats, poison in medicines and vomits, until at last his body was almost come, by use of poisons, to the state that Mithridates's body was by the use of treacle and preservatives, that the force of the poisons were blunted upon him; Weston confessing, when he was chid fur not despatching him, that he had given him enough to poison twenty men. Lastly, because all this asked time, courses were taken by Somerset, both to divert all means of Overbury's delivery, and to entertain Overbury by continual letters, partly of hopes and projects for his delivery, and partly of other fables and negotiations; somewhat like some kind of persons, which I will not name, which keep men in talk of fortune-telling, when they have a felonious meaning.
And this is the true narrative of this act of impoisonment, which I have summarily recited.
Now for the distribution of the proofs, there are four heads of proofs to prove you guilty, my lord of Somerset, of this impoisonment; whereof two are precedent to the'imprisonment, the third is present, and the fourth is following or subsequent. For it is in proofs as it is in lights, there is a direct light, and there is a reflexion of light, or back-light.
The first head or proof thereof is, That there was a root of bitterness, a mortal malice or hatred, mixed with deep and bottomless fears, that you had towards Sir Thomas Overbury.
The second is, That you were the principal actor, and had your hand in all those acts, which did conduce to the impoisonment, and which gave opportunity and means to effect it; and without which the impoisonment could never have been, and which could serve or tend to no other end but to the impoisonment.
The third is, That your hand was in the very impoisonment itself, which is more than needs to be proved; that you did direct poison; that you did deliver poison; that you did continually hearken to the success of the impoisonment; and that you spurred it on, and called for despatch when you thought it lingered.
And lastly, That you did all the things after the impoisonment, which may detect a guilty conscience, for the smothering of it, and avoiding punishment for it: which can be but of three kinds: that you suppressed, as much as in you was, testimony; That you did deface, and destroy, and clip, and misdate all writings that might give light to the impoisonment; and that you did fly to the altar of guiltiness, which is a pardon, and a pardon of murder, and a pardon for yourself, and not for your lady.
Iri this, my lord, I convert my speech to you, because I would have you attend the points of your charge, and so of your defence the better. And two of these heads I have taken to myself, and left the other two to the king's two Serjeants.
For the first main part, which is the mortal hatred, coupled with fear, that was in my lord of Somerset towards Overbury, although he did palliate it with a great deal of hypocrisy and dissimulation even to the end; I shall prove it, my lord steward, and you my lords and peers, manifestly, by matter both of oath and writing. The root of this hatred was that that hath cost many a man's life, that is, fear of discovering secrets j secrets, I say, of a high and dangerous nature: Wherein the course that I will hold, shall be this:
First, I will show that such a breach and malice was between my lord and Overbury, and that it burst forth into violent menaces and threats on both sides.
Secondly, That these secrets were not light, but of a high nature; for I will give you the elevation of the pole. They were such, as my lord of Somerset for his part had made a vow, that Overbury should neither live in court nor country. That he had likewise opened himself and his own fears so far, that if Overbury ever came forth of the Tower, either Overbury or himself must die for it. And of Overbury's part, he had threatened my lord, that whether he did live or die, my lord's shame should never die, but he would leave him the most odious man of the world. And farther, that my lord was like enough to repent it, in the place where Overbury wrote, which was the Tower of London. He was a true prophet in that: so here is the height of the secrets.
Thirdly, I will show you that all the king's business was by my lord put into Overbury's hands; so as there is work enough for secrets, whatsoever they were: and like princes confederates, they had their ciphers and jargons.
And lastly, I will show you that it is but a toy to say that the malice was only in respect he spake dishonourably of the lady; or for doubt of breaking the marriage: for that Overbury was a coadjutor to that love, and the lord of Somerset was as deep in ■peaking ill of the lady as Overbury. And again, it was too late for that matter, for the bargain of the match was then made and past. And if it had been no more but to remove Overbury from disturbing of the match, it had been an easy matter to have banded over Overbury beyond seas, for which they had a fair way ; but that would not serve their turn.
And lastly, periculum pericuto vineitur, to go so far as an impoisonmcnt, must have a deeper malice than flashes: for the cause must bear a proportion to the effect.
For the next general head of proofs, which consists in acts preparatory to the middle acts, they are in eight several points of the compass, as I may term it.
First, That there were devices and projects to despatch Overbury, or to overthrow him, plotted between the countess of Somerset, the earl of Somerset, and the earl of Northampton, before they fell upon
the impoisonment: for always before men fix upon a course of mischief, there must be some rejections: but die he must, one way or other.
Secondly, That my lord of Somerset was a principal practiser, I must speak it, in a most perfidious manner, to set a train or trap for Overbury to get him into the Tower; without which they never durst have attempted the impoisonment.
Thirdly, That the placing of the lieutenant Helwisse, one of the impoisoners, and the displacing of Waade, was by the means of my lord of Somerset.
Fourthly, That the placing of Weston the underkeeper, who was the principal impoisoner, and the displacing of Cary, and the doing of all this within fifteen days after Overbury's commitment, was by the means and countenance of my lord of Somerset. And these two were the active instruments of the impoisonment; and this was a business that the lady's power could not reach unto.
Fifthly, That because there must be a time for the tragedy to be acted, and chiefly because they would not have the poisons work upon the sudden; and for that the strength of Overbury's nature, or the very custom of receiving poison into his body, did overcome the poisons, that they wrought not so fast; therefore Overbury must be held in the Tower. And as my lord of Somerset got him into the trap, so he kept him in, and abused him with continual hopes of liberty; and diverted all the true and effectual means of his liberty, and made light of his sickness and extremities.
Sixthly, That not only the plot of getting Overbury into the Tower, and the devices to hold him and keep him there; but the strange manner of his close keeping, being in but for a contempt, was by the device and means of my lord of Somerset, who denied his father to see him, denied his servants that offered to be shut up close prisoners with him; and in effect handled it so, that he was close prisoner to all his friends, and open and exposed to all his enemies.
Seventhly, That the advertisement which my lady received from time to time from the lieutenant or Weston, touching Overbury's state of body or health, were ever sent up to the court, though it were in progress, and that from my lady: such a thirst and listening this lord had to hear that he was despatched.
Lastly, There was a continual negotiation to set Overbury's head on work, that he should make some recognition to clear the honour of the lady; and that he should become a good instrument towards her and her friends: all which was but entertainment; for your lordships shall plainly see divers of my lord of Northampton's letters, whose hand was deep in this business, written, I must say it, in dark words and clauses; that there was one thing pretended and another intended; there was a real charge, and there was somewhat not real; a main drift, and a dissimulation. Nay farther, there be some passages which the peers in their wisdom will discern to point directly at the impoisonment.
[After this inducement followed the evidence itself.]
THE EFFECT OF THAT WHICH WAS SPOKEN
LORD KEEPER OF THE GREAT SEAL OF ENGLAND,
AT THE TAKING OF HIS PLACE IN CHANCERY,
IN PERFORMANCE OF THE CHARGE HIS MAJESTY HAD GIVEN HIM WHEN HE RECEIVED
THE SEAL, MAY 7, 1817.
Before I enter into the business of the court, I shall take advantage of so many honourable witnesses to publish and make known summarily, what charge the king's most excellent Majesty gave me when I received the seal, and what orders and resolutions I myself have taken in conformity to that charge; that the king may have the honour of direction, and I the part of obedience; whereby your lordships and the rest of the presence shall see the whole time of my sitting in the chancery, which may be longer or shorter, as it shall please God and the king, contracted into one hour. And this I do for three causes.
First, to give account to the king of his commandment.
Secondly, that it may be a guard and custody to myself, and my own doings, that I do not swerve or recede from any thing that I have professed in so noble a company.
And thirdly, that all men that have to do with the chancery or the seal, may know what they shall expect, and both set their hearts and my ears at rest; not moving me in any thing against these rules; knowing that my answer is now turned from a nolumus into a nan possumus. It is no more, I will not, but, I cannot, after this declaration.
And this I do also under three cautions.
The first is, that there be some things of a more secret and council-like nature, more fit to be acted than published. But those things which I shall speak of to-day are of a more public nature.
The second is, that I will not trouble this presence with every particular, which would be too long; but select those things which are of greatest efficacy, and conduce most ad summas rerum; leaving many other particulars to beset down in a table, according to the good example of my last predecessor in his beginning.
And lastly, that these imperatives, which I have made but to myself and my times, be without prejudice to the authority of the court, or to wiser men that may succeed me; and chiefly that they are wholly submitted unto the great wisdom of my sovereign, and the absolutest prince in judicature that hath been in the christian world; for if any of these things which I intend to be subordinate to his
directions, shall be thought by his Majesty to be inordinate, I shall be most ready to reform them. These things are but " tanquam album prsetoris;" for so did the Roman praetors, which have the greatest affinity with the jurisdiction of the chancellor here, who used to set down at their entrance, how they would use their jurisdiction. And this I shall do, my lords, in verbis masculis; no flourishing or painted words, but such as are fit to go before deeds.
The king's charge, which is my lanthorn, rested upon four heads.
The first was, that I should contain the jurisdiction of the court within its true and due limits, without swelling or excess.
The second, that I should think the putting of the great seal to letters patents was not a matter of course to follow after precedent warrants; but that I should take it to be the maturity and fulness of the king's intentions: and therefore of the greatest parts of my trust, if I saw therein any scruple or cause of stay, that I should acquaint him, concluding with a " Quod dubites ne feceris."
The third was, that I should retrench all unnecessary delays, that the subject might find that he did enjoy the same remedy against the fainting of the soul and the consumption of the estate; which was speedy justice. "Bis dat, qui cito dat."
The fourth was, that justice might pass with as easy charge as might be; and that those same brambles, that grow about justice, of needless charge and expense, and all manner of exactions, might be rooted out so far as might be.
These commandments, my lords, are righteous, and, as I may term them, sacred; and therefore, to use a sacred form, I pray God bless the king for his great care over the justice of the land, and give me, his poor servant, grace and power to observe his precepts.
Now for a beginning towards it, I have set down and applied particular orders to-day out of these four general heads.
For the excess or tumour of this court of chancery, I shall divide it into five natures.
The first is, when the court doth embrace and retain causes, both in matter and circumstance, merely determinable and fit for the common law j