A LETTER TO SIR GEORGE VILLIERS, TOUCHING ROPER'S PLACE. 22 JAN. 1615.1

Sir,

Sending to the King upon occasion, I would not fail to salute you by my letter; which, that it may be more than two lines, I add this for news; that as I was sitting by my Lord Chief Justice, upon the commission for the indicting of Somerset, one of the Judges asked him whether Roper were dead. He said he for his part knew not; another of the Judges answered, It should concern you, my Lord, to know it. Whereupon he turned his speech to me and said No, Mr. Attorney, I will not wrastle now in my latter times. My Lord (said I) you speak like a wise man. Well (saith he) they have had no luck with it that have had it. I said again, Those days be past. Here you have the dialogue to make you merry. But in sadness I was glad to perceive he meant not to contest. I can but honour and love you, and rest

Your assured friend and servant,

22 January, 1615.

5.

FR. BACON.

From the letter to the King, which bears the same date as the last and probably travelled with it, we learn what Bacon's first impression was on examining the case against Somerset. The evidence consisted chiefly of confessions obtained from the subordinate actors before their trial, and could not now be altered or added to. Weston, the under gaoler, who was charged with administering the poisoned food; Mrs. Turner, the procuress, who was charged with putting the poison into it; Helwysse, the Lieutenant of the Tower, who had known what was going on and connived at it; Franklin, the apothecary, who had supplied the poisons to Mrs. Turner;-all these had been examined, indicted, tried, found guilty, and hanged. whatever may be thought of the sufficiency of the evidence upon which they were convicted-of which, by the way, I doubt whether any of the reports are complete enough to give us the means of judging, we need not scruple to believe that they were all guilty, because before they died, when they could have no motive for accusing themselves falsely, they all confessed their guilt. But though

1 Gibson Papers, vol. viii. f. 22. Fair copy; docketed in Bacon's hand.

And

a man's evidence, however bad his character, may generally be accepted as conclusive against himself, it is plain that, as against other people, the testimony of actors in such a business as this stood in need of corroboration. It is true that they had all been examined, and confronted, and re-examined, as often as Coke thought necessary, and that to him the depositions seemed conclusive enough not only to make a case for a jury, but to justify provisional announcements "for the satisfaction of the multitude" that the case was proved. Besides the declarations in Court which he had authorized on the 19th and 23rd of October, in which the complicity of the Earl and Countess of Somerset was distinctly indicated, he had made other extraordinary announcements with his own mouth. On the 27th of November he had informed the public from the Bench in open court that "knowing as much as he knew, if this plot had not been found out, neither Court, city, nor many particular houses had escaped the malice of that wicked crew." And again on the 4th of December (having been ordered to postpone the trial of one of the prisoners, and fearing that the public might draw some false inference in his favour) he had taken occasion in the same public manner to declare not only that the proofs against him were clear, but that secrets had been discovered which, though he might not yet disclose them, "made our deliverance as great as any that happened to the children of Israel." But all this made the case only the more difficult to deal with. When announcements like these were made by the Chief Justice from the Bench, it was of the first importance that the evidence when produced should bear them out; for otherwise the popular conclusion would inevitably be that something had been hushed up. If the Lords should acquit Somerset after what Coke had said of the evidence to convict him, what could people think but that the great fish had broken through the net? If, when evidence of such a portentous conspiracy was in the possession of the Lord Chief Justice, no one should be called in question,-what could they think but that somebody was implicated with whom justice dared not meddle ? Now it unfortunately happened that when Coke was inclined to believe a thing, very little evidence was enough for him; and that which had satisfied him on this occasion could not be expected to satisfy anybody else. Of the great conspiracy which he thought he had discovered, and the discovery of which he had thus prematurely announced, he had absolutely no evidence at all beyond the uncorroborated declarations of a man under sentence of death who was pretending secrets in order to prolong his life. And with regard to

1 Effect of James Franklin's arraignment. 27 Nov. 1615. S. P. Dom. James I.

Somerset, the particular piece of testimony which he regarded as "sufficient matter against him,"-meaning of course matter sufficient to ensure conviction," was upon the very face of it, as reported by himself, obviously and utterly insufficient. For the question being whether the Earl was an accessary to the death of Overbury before the fact, the "sufficient matter" was Franklin's confession of a conference two years after the death of Overbury with the Countess, during which she went into an adjoining room and returned out of it, having (as was supposed) taken instructions from the Earl, who was supposed to be within. So that even if the evidence had been sufficient to prove that they were then in guilty collusion (which it plainly was not, since the witness neither saw the man nor heard what he said), it could not at the very worst prove more than that he was an accessary after the fact. But to Coke in his present humour anything was evidence which implied accusation, and finding that Mrs. Turner's maid-servant could say that the Earl was in the house at the time, he set down the whole thing as proved; and wanting no further testimony from Franklin, had him brought up for trial forthwith.1

This was on the 27th of November. But the trial of the Earl could not be proceeded with for some time to come; the Judges having decided that he must not be tried before the Countess, who, being with child, could not be tried till after her delivery, which did not take place till the 9th of December. On the 19th of January however they were both indicted for procuring and consenting to the murder of Overbury, as accessaries before the fact; and a true bill was found against them. And I think it must have been on the same day that Bacon (who having to draw the indictments and conduct the prosecution had at last been allowed to see the papers) had an interview with the King, and gave him his opinion and advice upon the case. What it was we learn from the next letter, in which he thought it expedient to repeat and enforce it. This letter was first printed, I believe, in the Cabala (ed. 1663. p. 33). But there is a copy of it in Bacon's own collection; and from this I take it. It is not to be found in the Resuscitatio; in which Rawley withheld all the papers relating to the trial of Somerset ;-out of considera

1 "He was not proceeded withal until he had discovered sufficient matter against the Earl of Somerset, and that I had fortified his testimony by other witnesses which by God's providence I attained unto. . . . Now, forasmuch as he charges the Earl in such direct and particular manner, he was demanded openly at the Bar whether his examinations, then shewed to him, taken before me and subscribed by his own hand were not true, which openly and clearly he confessed to be true divers times." Coke to the King, 27 Nov. 1615.

2 Camden. Lord Carew's Letters (Camden Soc.), p. 23.

tion, I suppose, for the feelings of his daughter, who was still living the mother of William Lord Russell.

THE KING'S ATTORNEY'S LETTER TO THE KING TOUCHING THE PROCEEDING WITH SOMERSET, THE 22ND OF JANU. 1615.

It may please your most excellent Majesty,

At my last access to your Majesty, it was fit for me to consider the time and your journey, which maketh me now trouble your Majesty with a remnant of that I thought then to have said besides your old warrant and commission to me, to advertise your Majesty when you are aux champs, of anything that concerned your service and my place. I know your Majesty is nunquam minus solus, quàm cum solus; and I confess, in regard of your great judgment (unto which nothing ought to be presented but well weighed) I could almost wish that the manner of Tiberius were in use again, of whom Tacitus saith, Mos erat quamvis præsentem scripto adire; much more in absence.

I said to your Majesty that which I do now repeat, that the evidence upon which my Lord of Somerset standeth indicted is of a good strong thread, considering impoisoning is the darkest of offences; but that the thread must be well spun and woven together. For your Majesty knoweth it is one thing to deal with a jury of Middlesex and Londoners, and another to deal with the Peers; whose objects perhaps will not be so much what is before them in the present case (which I think is as odious to them as to the vulgar) but what may be hereafter. Besides, there be two disadvantages we that shall give in evidence shall meet with, somewhat considerable. The one, that the same things often opened leese their freshness, except there be an aspersion of somewhat that is new. The other is the expectation raised, which makes things seem less than they are, because they are less than opinion. Therefore I were not your Attorney nor myself, if I should not be very careful, that in this last part, which is the pinnacle of your former justice, all things may pass sine offendiculo, sine scrupulo. Hereupon I did move two things, which (having now more fully explained myself) I do in all humbleness renew. First, that your Majesty will be careful to choose a Steward of judgment, that may be able to

1 Add. MSS. 5503. f. 80.

moderate the evidence and cut off digressions; for I may interrupt, but I cannot silence. The other, that there may be special care taken for the ordering of the evidence, not only for the knitting, but for the list, and (to use your Majesty's own word) the confining of it. This to do, if your Majesty vouchsafe to direct it yourself, that is the best; if not, I humbly pray you to require my Lord Chancellor, that he together with my Lord Chief Justice will confer with myself, and my fellows, that shall be used, for the marshalling and bounding of the evidence, that we may have the help of his opinion, as well as that of my Lord Chief Justice; whose great travels as I much commend, yet that same plerophoria, or over-confidence, doth always subject things to a great deal of chance.

There is another business proper for me to crave of your Majesty at this time (as one that have in my eye a great deal of service to be done) concerning your casual revenue; but considering times and persons, I desire to be strengthened by some such form of commandment under your royal hand, as I send you here inclosed. I most humbly pray your Majesty to think I understand myself right well in this which I desire, and that it tendeth greatly to the good of your service. The warrant I mean not to impart but upon just occasion. Thus thirsty to hear of your Majesty's good health, I rest.

At this time it was intended, I presume, to proceed with the arraignments at once. But important despatches having been received from Sir John Digby, then ambassador in Spain, from which it appeared that Somerset had had some underhand intelligence with the Spanish ambassador, and revealed things to him which were meant to be kept secret, it was thought necessary to inquire into that matter first. Digby was accordingly sent for: the prosecution for the murder was postponed: and the stage was left clear during the interval for the other businesses then waiting for settlement. The most important of these were questions in dispute between the Crown and the Judges, in which of course the Attorney-General acted on behalf of the Crown. This brought Bacon into continual correspondence with the Court, and during the next month his communications with the King and with Villiers are so frequent and so full that they explain themselves.