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SIR FRANCIS BACON TO THE JUDGES.
Stephens, IT is the king's express pleasure, that because his majesty's time would not serve to have conference with your lordship and his judges touching his cause of commendams at his last being in town, in regard of his majesty's other most weighty occasions; and for that his majesty holdeth it necessary, upon the report, which my lord of Winchester, who was present at the last argument by his majesty's royal commandment, made to his majesty, that his majesty be first consulted with, ere there be any further proceeding by argument by any of the judges or otherwise: Therefore, that the day appointed for the farther proceeding by argument of the judges in that case be put off till his majesty's farther pleasure be known upon consulting him; and to that end, that your lordship forthwith signify his commandment to the rest of the judges; whereof your lordship may not fail. And so I leave your lordship to God's goodness.
Your loving friend to command,
This Thursday at afternoon,
Questions legal for the Judges [in the case of the
WHETHER the ax is to be carried before the prisoner, being in the case of felony?
Whether, if the lady make any digression to clear his lordship, she is not by the lord Steward to be interrupted and silenced?
Whether, if my lord of Somerset should break forth into any speech of taxing the king, he be not presently by the lord Steward to be interrupted and silenced; and, if he persist, he be not to be told, that
if he take that course, he is to be withdrawn, and evidence to be given in his absence? And whether that may be; and what else to be done?
Whether if there should be twelve votes to condemn, and twelve or thirteen to acquit, it be not a verdict for the king?
Questions of Convenience, whereupon his Majesty may confer with some of his Council.
WHETHER, if Somerset confess at any time before his trial, his majesty shall stay trial in respect of farther examination concerning practice of treason, as the death of the late prince, the conveying into Spain of the now prince, or the like; for till he confess the less crime, there is [no] likelihood of confessing the greater?
Whether, if the trial upon that reason shall be put off, it shall be discharged privately by dissolving the commission, or discharging the summons? Or whether it shall not be done in open court, the peers being met, and the solemnity and celebrity preserved; and that with some declaration of the cause of putting off the farther proceeding?
Whether the days of her trial and his shall be immediate, as it is now appointed; or a day between, to see, if, after condemnation, the lady will confess of this lord; which done, there is no doubt but he will confess of himself?
Whether his trial shall not be set first, and hers after, because then any conceit, which may be wrought by her clearing of him, may be prevented; and it may be he will be in the better temper, hoping of his own clearing, and of her respiting?
What shall be the days; for Thursday and Friday can hardly hold in respect of the summons; and it may be as well Friday and Saturday, or Monday and Tuesday, as London makes it already?
A particular remembrance for his Majesty.
Ir were good, that after he is come into the Hall, so that he may perceive he must go to trial, and shall be retired into the place appointed, till the court call for him, then the lieutenant should tell him roundly, that if in his speeches he shall tax the king, (a) that the justice of England is, that he shall be taken away, and the evidence shall go on without him; and then all the people will cry away with him; and then it shall not be in the king's will to save his life, the people will be so set on fire.
Memorial touching the course to be had in my lord of Somerset's arraignment.
(a) The king's apprehension of being taxed by the earl of Somerset on his trial, though for what is not known, accounts in some measure for his majesty's extreme uneasiness of mind till that trial was over, and for the management used by Sir Francis Bacon in particular, as appears from his letters, to prevail upon the earl to submit to be tried, and to keep him in temper during his trial, lest he, as the king expressed it in an apostile on Sir Francis's letter of the 28th of April, 1616, upon the one part commit unpardonable errors, and I on the other seem to punish him in the spirit of revenge. See more on this subject in Mr. Mallet's Life of the Lord Chancellor Bacon, who closes his remarks with a reference to a letter of Somerset to the king, printed in the Cabala, and written in an high style of expostulation, and shewing, through the affected obscurity of some expressions, that there was an important secret in his keeping, of which his majesty dreaded a discovery. The earl and his lady were released from their confinement in the Tower in January, 1624, the latter dying August 23, 1632, leaving one daughter Anne, then sixteen years of age, afterwards married to William lord Russel, afterwards earl, and at last duke of Bedford. The earl of Somerset survived his lady several years, and died in July, 1645, being interred on the 17th of that month in the church of St. Paul's, Covent-Garden.
THE HEADS OF THE CHARGE AGAINST ROBERT
Apostyle of the king.
Ye will doe well to remember lykewayes in your præamble, that insigne, that the only zeal to justice maketh 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 point, quhairof he is accused.
The first to prove the malice, which Somerset bore to Overbury, which was the motive and ground of the impoisonment.
The second is to prove the preparations unto the impoisonment, by plotting his imprisonment, placing his keepers, stopping access of friends, &c.
The third is the acts of the impoisonments themselves.
And the fourth is acts subsequent, which do vehemently argue him to be guilty of the impoisonment.
For the 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 lordship's quarrel: 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? &c."
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 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 also lately to govern Somerset, insomuch that in his own letters he vaunted, that from him proceeded Somerset's fortune, credit, and understanding.
This course I mean to run in a kind of generality, putting the imputations rather upon Overbury than Somerset; and applying it, that such a nature was