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the next term; so as that matter may endure further consideration, for his Majesty not only to lose1 ground, but to win ground.

To-morrow is appointed for the examination of Somerset, which by some infirmity of the Duke of Lenox was put off from this day. When this is done, I will write more fully, ever resting,

Your true and devoted servant,

FR. BACON.

We have here another illustration, and a very good one, of the relation at this time subsisting between the Government and the Judges in cases of public prosecution. They were advised with. Before the case was brought into Court the evidence for the prosecution was laid before them, and their opinions were asked whether it was a case fit to proceed with. For though it may seem that to a government instituting a prosecution for the simple purpose of trying whether a man be guilty or not guilty, the verdict should be a matter of indifference, and accepted, which ever way it goes, simply as an answer to the question asked, it was certainly not so regarded in James's time. Even in the case before us, which is the strongest imaginable, a case in which the Government had literally nothing to gain or lose except reputation for justice,-it is evident that an acquittal was feared less as a failure of justice than as a dishonour to the King. And how (it may be fairly asked) should an acquittal in such a case have been a dishonour to the King? The King's favourite falls under heavy suspicion of having been accessary to the murder of one of the King's subjects. He is formally accused and tried before a jury of his peers. His peers acquit him. What, it may be asked, is that to the King? We often hear juries blamed for verdicts of not guilty: but who ever thought of blaming the Crown? The answer, I think, must be that in the relation which once subsisted between the King and the people, such a feeling was natural and appropriate; and that, though that relation was now materially changed, the old feeling still remained,-an anomaly frequently observable in the course of social alterations, which seldom proceed all together; but either the opinion runs ahead of the practice, or the practice of the opinion. Originally the punishment of all crimes rested with the King alone. Judges were at first only deputies; juries were at first only witnesses. In process of time

So in MS. A negative (either "not" after "only," or "no" before "ground") has evidently dropped out.

they came to be regarded as checks upon the King. The Judges were to see that the laws were not infringed; the juries to see that the fact was proved. But still the King was the accuser, and to accuse a man who was not guilty was false accusation. We can still understand that the acquittal of a man prosecuted for a political offence is a damage to the government that prosecutes him; and I fancy that in James's time a similar feeling extended to all prosecutions instituted at the suit of the Crown. The conviction seemed necessary in order to justify the prosecution; for an acquittal implied that the prisoner had been brought to trial on insufficient evidence. People had not yet learned to regard the proceeding before the Court simply as a trial of the question,-a reference of it to the Judge and Jury to know whether the prisoner was guilty or not. Still less had they learned to regard a prejudication of that question as unjust and injurious, on the ground that until the case had been openly heard nobody could know. The Government, having privately examined both the witnesses and the prisoner, were supposed to have already satisfied themselves of his guilt; and the trial was looked on as little more than an appeal to an open tribunal for confirmation of the judgment. Certainly from Coke's doctrine that the evidence against the prisoner ought to be so conclusive as to preclude the possibility of an answer, it would directly and logically follow that a verdict of not guilty was a censure upon the King. This at any rate is certain—that in those days when a man was once brought up for trial the honour of the King was supposed to be interested in obtaining a conviction: and therefore it was found to be expedient, before bringing him up for trial, to ascertain upon the best authority which could be got that the prosecution was "honourable and just" and the evidence "fair and good."

The trial of the Countess had now been fixed for the 15th of May, and on the 5th Bacon sent the King an outline of the case as he proposed to have it presented to the Court. It would seem from the beginning of the letter which he sent with it, that the King had objected to his suggestion concerning the communication to be made to Somerset, as holding out a hope not only that his life might be spared, but that his fortune and favour might be recovered: which last he felt to be out of the question: a scruple very creditable to the King, though any friend of Somerset's who knew the King's nature might nevertheless have suggested the hope to him with a safe conscience.

1 See above, Chapter IV. § 6.

A LETTER OF THE KING'S ATTORNEY TO SIR GEORGE VILLIERS, OF ACCOUNT AND ADVICE TO HIS MAJESTY TOUCHING SOMERSET'S ARRAIGNMENT. 5° MAII. 1616.1

Sir,

I am far enough from opinion that the re-integration or resuscitation of Somerset's fortune can ever stand with his Majesty's honour or safety; and therein I think I expressed myself fully to his Majesty in one of my former letters; and I know well any expectation or thought abroad will do much hurt. But yet the glimmering of that which the King hath done to others by way of talk to him cannot hurt as I conceive; but I would not have that part of the message as from the King, but added by the messenger as from himself. This I remit to his Majesty's princely judgment.

For the person, though he trust the Lieutenant3 well, yet it must be some new man; for in these cases, that which is ordinary worketh not so great impression as that which is new and extraordinary.

The time I wish to be the Tuesday, being the even of his Lady's arraignment. For, as his Majesty first conceived, I would not have it stay in his stomach too long, lest it sour in the digestion; and to be too near the time may be thought but to tune him for that day.

I send herewithal the substance of that which I purpose to say, nakedly, and only in that part which is of tenderness; for that I conceive was his Majesty's meaning.

It will be necessary, because I have distributed parts to the two serjeants (as that paper doth express), and they understand nothing of his Majesty's pleasure of the manner of carrying the evidence, more than they may guess by observation of my example (which they may ascribe as much to my nature as to direction), therefore that his Majesty will be pleased to write some few words to us all, signed with his own hand, that the matter itself being tragical enough, bitterness and insulting be forborne, and that we remember our part to be to make him delinquent to the Peers, and not odious to the people. That part of the evidence of the Lady's exposition of the pronoun (He), which was first caught hold of by me, and after by his Majesty's singular 1 Add. MSS. 5503, f. 82. 2 See above, p. 277. 3 Sir George More.

wisdom and conscience excepted to, and now is by her re-examination retracted,' I have given order to serjeant Montague (within whose part it falleth) to leave it out of the evidence.

I do yet crave pardon, if I do not certify touching the point of law for respiting the judgment, for I have not fully advised with my Lord Chancellor concerning it. But I will advertise it in time.

I send his Majesty the Lord Steward's commission in two several instruments, the one to remain with my Lord Chancellor, which is that which is written in secretary-hand for his warrant, and is to pass the signet; the other, that whereunto the great seal is to be affixed, which is in chancery-hand. His Majesty is to sign them both, and to transmit the former to the signet, if the Secretaries either of them be there; and both are to be returned to me with all speed. I ever rest

Your true and devoted servant.

SOMERSET'S BUSINESS AND CHARGE, WITH THE KING'S POSTILES.$ The heads of the charge.

Apostyle of the King. Ye will doe well to remember lykewayes in your præamble, that insigne, that the only zeal to justice makis me take this course. I have commandit you not to expatiate nor digresse upon any other points, that maye not serve clearlie for probation or inducement of that pointe quhairof he is accused.

First, it is not meant that Somerset shall be charged with anything by way of aggravation otherwise than as conduceth to the proof of the impoisonment.

For the proofs themselves, they are distributed into four heads.

1. The first to prove the malice which Somerset bare to Overbury, which was the motive and ground of the impoisonment.

2. The second is to prove the preparations unto the impoisonment by plotting his imprisonment, placing his keepers, stopping access of friends, etc.

3. The third is the acts of the impoisonments themselves.

4. And the fourth is acts subsequent, which do vehemently argue him to be guilty of the impoisonment. 1 "Extracted" in MS. 2 See above, p. 277. 3 Tenison MSS. 933 f. 125. The original letter.

For the first two heads (upon conference, whereunto I called serjeant Montagu and serjeant Crew), I have taken them two heads to myself; the third I have allotted to serjeant Montagu; and the fourth to serjeant Crew.

In the first of these, to my understanding, is the only tenderness. For on the one side it is most necessary to lay a foundation, that the malice was a deep malice, mixed with fear, and not only matter of revenge upon his La: quarrel.1 For periculum periculo vincitur; and the malice must have a proportion to the effect of it, which was the impoisonment. So that if this foundation be not laid all the evidence is weakened.

On the other side, if I charge him, or could charge him, by way of aggravation, with matters tending to disloyalty or treason, then he is like to grow desperate.

Therefore I shall now set down perspicuously what course I mean to hold, that your Majesty may be pleased to direct and correct it, preserving the strength of the evidence; and this I shall now do, but shortly and without ornament.

First, I shall read some passages of Overbury's letters, namely these: "Is this the fruit of nine years' love, common secrets, and common dangers ?" In another letter; "Do not drive me to extremity to do that which you and I shall be sorry for." In another letter; "Can you forget him, between whom such secrets of all kinds have passed? etc."

Then will I produce Simcock, who deposeth from Weston's speech, that Somerset told Weston that if ever Overbury came out of prison one of them must die for it.

Then I will say that what these secrets were, I mean not to enter into particulars; nor to charge him with disloyalty, because he stands to be tried for his life upon another crime. But yet by some taste that I shall give to the Peers in general, they may conceive of what nature those secrets may be.

Wherein I will take it for a thing notorious that Overbury was a man that always carried himself insolently both towards the Queen and towards the late Prince: That he was a man that carried Somerset on in courses separate and opposite to the privy council: That he was a man of nature fit to be an incendiary of a state, full of bitterness and wildness of speech and project: That he was thought absolutely to govern Somerset,

So in MS. Birch printed it "his Lordship's quarrel." But "his Lady's quarrel” is evidently the true reading.

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