law neither to levy it, nor to move for it. 5. Against the court of the duchy of Lancaster prohibitions go; and the like may do to the court of wards and exchequer. 6. Against the court of requests. 7. Against the chancery for decrees after judg ment. 8. Præmunire for suits in the chancery. 9. Disputed in the common pleas, whether that court may grant a prohibition to stay suits in the chancery, and time given to search for precedents. 10. Against the new boroughs in Ireland. 11. Against the writs "Dom. Rege inconsulto." 12. Against contribution, that it was not suits, to the discontent of foreign ambassadors, and the king's dishonour and trouble by their remonstrances. This is new, and would be forthwith restrained, and the others settled. In this he prevaileth; and this but lately brought in question. In this his majesty hath made an establishment: and he hath not prevailed, but made a great noise and trouble. This his majesty hath also established, being a strange attempt to make the chancellor sit under a hatchet, instead of the king's arms. 13. Peacham's case. This was but a brave- 14. Owen's case. ry, and dieth of itself, especially the authority of the chancery by his majesty's late proceedings being so well established. This in good time was overruled by the voice of eight judges of ten, after they had heard your attorney. And had it prevailed, it had overthrown the parliament of Ireland, which would have been imputed to a fear in this state to have proceeded; and so his majesty's authority and reputation lost in that kingdom. This is yet" sub judice:" but if it should prevail, it maketh the judges absolute over the patents of the king, be they of power and profit, contrary to the ancient and ever continued law of the crown, which doth call those causes before the king himself, as he is represented in chancery. In this he prevailed, and gave opinion, that 15. The value of bene fices not to be according to the tax in the king's book of taxes. 16. Suits for legacies ought to be in their proper dioceses, and not in the preroga- the king by his great seal could not so much as move any his subjects for benevolence. But this he retracted after in the Star Chamber; but it marred the benevolence in the mean time. In this, for as much as in him was, and in the court of king's bench, he prevailed, though it was holpen by the good service of others. But the opinion which he held, amounted in effect to this, that no word of scandal or defamation, importing that the king was utterly unable or unworthy to govern, were treason, except they disabled his title, etc. In this we prevailed with him to give opinion it was treason: but then it was upon a conceit of his own, that was no less dangerous, than if he had given his opinion against the king: for he proclaimed the king excommunicated in respect of the anniversary bulls of "Coena Domini," which was to expose his person to the fury of any jesuited conspirator. By this the intent of the statute of 21 Henry VIII., is frustrated; for there is no benefice of so small an improved value as 8. by that kind of rating. For this the judges may be assembled in the exchequer for a confer ence. The practice hath gone against this; and it is fit, the suit be where the probate is. And this served but to put a pique between the archbishops' courts and the bishops'courts. This may be again propoun- | majesty's service, as is fit. Howbeit, for so much ed upon a conference as did concern the practice of conveying the of the judges. SIR FRANCIS BACON TO SIR GEORGE VILLIERS. Touching the examination of Sir Robert Cotton upon some information of Sir John Digby.* I RECEIVED your letter yesterday towards the evening, being the 8th of this present, together with the interrogatory included, which his majesty hath framed, not only with a great deal of judgment what to interrogate, but in a wise and apt order; for I do find that the degrees of questions are of great efficacy in examination. I received also notice and direction by your letter, that Sir Robert Cotton was first thoroughly to be examined; which indeed was a thing most necessary to begin with; and that for that purpose Sir John Digby was to inform my lord chancellor of such points, as he conceived to be material; and that I likewise should take a full account for my lord chief justice of all Sir Robert Cotton's precedent examinations. It was my part then to take care, that that, which his majesty had so well directed and expressed, should be accordingly performed without loss of time. For which purpose, having soon after the receipt of your letter received a letter from my lord chancellor, that he appointed Sir John Digby to be with him at two of the clock in the afternoon, as this day, and required my presence, I spent the mean time, being this forenoon, in receiving the precedent examinations of Sir Robert Cotton from my lord chief justice, and perusing of them; and accordingly attended my lord chancellor at the hour appointed, where I found Sir John Digby. At this meeting it was the endeavour of my lord chancellor and myself to take such light from Sir John Digby, as might evidence first the examination of Sir Robert Cotton; and then to the many examinations of Somerset; wherein we found Sir John Digby ready and willing to discover unto us what he knew; and he had also, by the lord chancellor's direction, prepared some heads of examination in writing for Sir Robert Cotton; of all which use shall be made for his * Secretary Winwood, in a private letter to Sir Thomas Edmondes, printed in the Historical View of the Negotiations between the Courts of England, France, and Brussels, p. 392, mentions, that there was great expectation, that Sir John Digby, just then returned from Spain, where he had been afbassador, could charge the Earl of Somerset with some treasons and plots with Spain. "To the king," adds Sir Ralph," as yet he hath used no other language, but that, having served in a place of honour, it would ill become him to be an accuser. Legally or criminally he can say nothing: yet this he says and hath written, that all his private despatches, wherein he most discovered the practices of Spain, and their intelligences, were presently sent into Spain; which could not be but by the treachery of Somerset." prince into Spain, or the Spanish pensions, he was somewhat reserved upon this ground, that they were things his majesty knew, and things, which by some former commandment from his majesty he was restrained to keep in silence, and that he conceived they could be no ways applied to Somerset. Wherefore it was not fit to press him beyond that, which he conceived to be his warrant, before we had known his majesty's farther pleasure; which I pray you return unto us with all convenient speed. I for my part am in no appetite for secrets; but, nevertheless, seeing his majesty's great trust towards me, wherein I shall never deceive him; and that I find the chancellor of the same opinion, I do think it were good my lord chancellor chiefly and myself were made acquainted with the persons and the particulars; not only because it may import his majesty's service otherwise, but also because to my understanding, for therein I do not much rely upon Sir John Digby's judgment, it may have a great connection with the examination of Somerset, considering his mercenary nature, his great undertaking for Spain in the match, and his favour with his majesty ; and therefore the circumstances of other pensions given cannot but tend to discover whether he were pensioner or no. But herein no time is lost; for my lord chancellor, who is willing, even beyond his strength, to lose no moment for his majesty's service, hath appointed me to attend him Thursday morning for the examination of Sir Robert Cotton, leaving tomorrow for council-business to my lord, and to me for considering of fit articles for Sir Robert Cotton. 10 April, 1616. SIR FRANCIS BACON TO THE JUDGES. MY LORD, 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 lord- and it may be he will be in the better temper, ship to God's goodness. WHETHER the axe 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? 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 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,* 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 66 so set on fire. Endorsed, Memorial touching the course to be had in my THE HEADS OF THE CHARGE AGAINST ROBERT, QUESTIONS OF CONVENIENCE, WHEREUPON Apostyle of the HIS MAJESTY MAY CONFER WITH SOME OF king. Ye will doe well to remember lykewayes in your WHETHER, if Somerset confess at any time before his trial, his majesty shall stay trial in respect signe, that the onpræamble, that inof farther examination concerning practice of trea-ly zeal to justice son, as the death of the late prince, the conveying maketh me take into Spain of the now prince, or the like; for till this course. I have he confess the less crime, there is [no] likelihood commandit you 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; See ante, page 321. FIRST it is meant, that Somerset shall not be charged with any thing by way of aggravation, otherwise than as conduceth to the proof of the impoisonment. For the proofs themselves, they are distributed into four: 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 prevail upon the earl to submit to be tried, and to keep him in Sir Francis Bacon in particular, as appears from his letters, to 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 a high style of expostulation, and showing, 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, 1621-2, 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. not to expatiate, nor digresse upon any other points, that maye not serve clearlie for proba tion or inducement of that point, quhairof he is accused. The first to prove the ma- | carried himself insolently, both towards the queen, lice, which Somerset bore to and towards the late prince: that he was a man, Overbury, which was the mo- that carried Somerset on in courses separate and tive and ground of the im- opposite to the privy council: that he was a man poisonment. 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." The second is to prove the preparations unto the impoisonment, by plotting his imprisonment, placing his keepers, stopping access of friends, etc. 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 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 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 would 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." 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 like to hatch dangerous secrets and practices. I mean to show likewise what jargons there were and ciphers between them, which are great badges of secrets of estate, and used either by princes and their ministers of state, or by such as practise against princes. That your majesty was called Julius in respect of your empire; the queen Agrippina, though Somerset now saith it was Livia, and that my Lady of Suffolk was Agrippina; the Bishop of Canterbury Unctius; Northampton, Dominic; Suffolk, first Lerma, after Wolsey; and many others; so as it appears they made a play both of your court and kingdom; and that their imaginations wrought upon the greatest men and matters. Neither will I omit Somerset's breach of trust to your majesty, in trusting Overbury with all the despatches, things, wherewith your council of estate itself was not many times privy or acquainted; and yet, this man must be admitted to them, not cursorily, or by glimpses, but to have them by him, to copy them, to register them, to table them, etc. Apostyle of the king. This evidence I shall also give in evidence, cannot be given in in this place, the slight account without making of that letter, which was me his accuser, brought to Somerset by Ashand that upon ton, being found in the fields soon after the late prince's death, and was directed to Antwerp, containing these words, "that the first branch was cut from the tree, and that he should, ere long, send happier and joyfuller news." a very slight ground. As for all the subsequent evidences, they are all so little evident, as una litura may serve thaime all. 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 merset, and de Nothing to So Which is a matter I would not use, but that my Lord Coke, who hath filled this part with many frivolous things, Iwould think all lost, except he hear somewhat of this kind. But, this it is to come to the leavings of a business. And, for the rest of that kind, as to speak of that par clared by Franklin after condemnation. Nothing to Somerset, and a loose conjecture. No better than a gazette, or passage of Gallo Belgicus. Nothing yet proved against Lowbell. Nothing to So merset. Declared by Franklin after condemnation. Nothing to So merset. Nothing to So merset. ticular, that Mrs. Turner did at Whitehall show to Franklin the man, who, as he said, poisoned the prince, which, he says, was a physician with a red beard. That there was a little picture of a young man in white wax, left by Mrs. Turner with Forman the conjurer, which my Lord Coke doubted was the prince. That the Viceroy of the Indies at Goa reported to an English factor, that Prince Henry came to an untimely death by a mistress of his. That Somerset with others, would have preferred Lowbell the apothecary to Prince Charles. That the countess laboured Forman and Gresham, the conjurers, to enforce the queen by witchcraft to favour the countess. That the countess told Franklin, that when the queen died, Somerset should have Somerset House. That Northampton said, the prince, if ever he came to reign, would prove a tyrant. That Franklin was moved by the countess to go to the Palsgrave, and should be furnished with money. The particular reasons, why I omit them, I have set in the margin; but the general is partly to do a kind of right to justice, and such a solemn trial, in not giving that in evidence, which touches not the delinquent, or is not of weight; and partly to observe your majesty's direction, to give Somerset no just occasion of despair or flushes. But, I pray your majesty to pardon me, that I have troubled your majesty with repeating them, lest you should hear hereafter, that Mr. Attorney hath omitted divers material parts of the evidence, Endorsed, time between the use of the little charm, or, as his majesty better terms it, "the evangile,”* and the day of his trial† notwithstanding his majesty's being so far off, as advertisement of success and order thereupon could not go and come between, was chiefly, for that his majesty, from whom the overture of that first moved, did write but a few hours, that this should be done, which I turned into days. Secondly, because the hope I had of effect by that mean, was rather of attempting him at his arraignment, than of confession before his arraignment. But I submit it to his majesty's better judgment. The person, by your first description, which was without name, I thought had been meant of Packer: but now perceive it is another, to me unknown, but, as it seemeth, very fit. I doubt not but he came with sufficient warrant to Mr. Lieutenant to have access. In this I have no more to do, but to expect to hear from his majesty how this worketh. The letter from his majesty to myself and the serjeants I have received, such as I wished; and I will speak with the commissioners, that he may, by the lieutenant, understand his majesty's care of him, and the tokens herein of his majesty's compassion towards him. I ever had a purpose to make use of that circumstance, that Overbury, the person murdered, was his majesty's prisoner in the Tower; which indeed is a strong pressure of his majesty's justice. For Overbury is the first prisoner murdered in the Tower, since the murder of the young princes by Richard the Third, the tyrant. I would not trouble his majesty with any points of preamble, nor of the evidence itself, more than that part nakedly, wherein was the tenderness, in which I am glad his majesty, by his postils, which he returned to me, approveth my judgment. Now I am warranted, I will not stick to say openly, I am commanded, not to exasperate, nor to aggravate the matter in question of the impoisonment with any other collateral charge of disloyalty, or otherwise; wherein, besides his majesty's principal intention, there will be some use to save the former bruits of Spanish matters. There is a direction given to Mr. Lieutenant by my lord chancellor and myself, that as yesterday Mr. Whitings the preacher, a discreet man, Somerset's business and charge, with his majesty's and one that was used to Helwisse, should preach |