by the prospect of the Infanta's rich portion. Meantime he so far took Bacon's advice that he procured a supply of money for his immediate needs; not, however, from the creation of Barons-which would have gone but a little way-but by surrendering to the Dutch the cautionary towns which had been pledged by them to Elizabeth as security for their debt to her. The immediate receipt (23 April, 1616) of £215,000 enabled him to defer for some time longer the unwelcome meeting of a Parliament.

§ 32 BACON'S PREPARATION FOR THE WORK OF A LORD

CHANCELLOR

A new Favourite was soon to rise and the old Favourite was on the point of being tried for his life. Sir Thomas Overbury, formerly an intimate friend of the present Favourite, the Earl of Somerset, and vehemently opposed to his marriage with the divorced Countess of Essex, had been recently poisoned in the Tower by his revengeful wife, under circumstances which appeared to implicate Somerset also. His guilt, or innocence, has never been satisfactorily proved. We only know that the King-who, after much patience and remonstrance had now completely discarded his overbearing and ungrateful Favourite -earnestly desired that he should be condemned; and that Bacon's part in the prosecution was rendered difficult, partly by the insufficiency of the evidence, partly by the apparent fear that Somerset might make some disclosures prejudicial to the King. On 22 Jan. 1616, Bacon congratulates Villiers on the intended gift of a valuable Patent which had been bought by Somerset, but which the King intended to bestow on the new Favourite, as soon as it could legally be taken from the old. On the same day he also writes thus to the King concerning the pending trial: 'The evidence is of a good strong thread, considering impoisoning is the darkest of offences; but the thread must be well spun and woven together." If a conviction is to be secured, he warns the King that he must select "a Steward of Judgment that may be able to moderate the evidence and cut off digressions; for I may interrupt but I cannot silence." Elsewhere he describes the evidence as being "so balanced as it may have sufficient matter

for the consciences of the Peers to convict him and yet leave sufficient matter in the conscience of the King to pardon his life."

1

Lest the evidence should introduce inconvenient irrelevancies he proposes to take measures not only for the knitting of it but also, "to use your Majesty's own word, for the confusing 1 of it." He consults the King what step is to be taken in case of an acquittal, and receives the reply that "this case requireth that, because there may be many high and heinous offences (though not capital) for which he may be questioned in the Star Chamber or otherwise. . . . that therefore he be remanded to the Tower as close prisoner."

As the crisis approached, Bacon seems to have become still more doubtful of the result; for he recommends the King to make some promises to Somerset beyond the mere saving of his life, in order to induce him to confess; and he adds one or two precedents for the restoration of lands after attainder. Finding James resolute in his refusal, Bacon does not blush to suggest that Somerset should at all events be deceived into false expectations of royal favour; the King need not commit the deception; a messenger can do it for him :

"I am far from opinion that the re-integration or resuscitation of Somerset's fortune can ever stand with his Majesty's honour or safety but yet the glimmering of that which the King hath done to others, by way of talk to him, cannot hurt, as I conceive. . . . I would not have that part of the message as from the King, but added by the messenger as from himself."

Still Somerset was refractory; and Bacon recommends, in the last resort, that

"After he [Somerset] is comen into the hall, the Lieutenant shall 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 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.”

The Countess of Somerset pleaded guilty; and the Earl (who to the last maintained his innocence) was on the following day 1 We may certainly give the King credit for using the word "confuse," not in our present sense, but in the sense "to fuse," "blend into one."

(25 May, 1616) unanimously condemned. But the lives of both were spared. One of the Countess's tools, Weston, before his trial, had expressed a hope that the Government would not make a net to catch the little fishes and let the great ones break through; but his hope was not fulfilled. Weston himself was hanged, with others; but both the Earl and Countess of Somerset were ultimately pardoned, and on Bacon fell the duty, not only of drawing up a pardon for the Countess, the prime mover in the crime, but of "reforming" the pardon (1 July, 1616)1" in that main and material point of inserting a clause that she was not a principal, but an accessory before the fact, by the investigation of base persons."

To us, with our modern methods of conducting a criminal trial, it must of course seem intolerable that the Attorney-General should communicate with the King, pending a trial, concerning the "knitting" or "confusing" of the evidence; the appointment of a Steward to "moderate digressions;" and the immediate re-arrest of the prisoner, in the event of an acquittal. But, if we are not to be unjust to Bacon, we must try to place ourselves in the position of an Attorney-General in the seventeenth century conducting a trial, criminal, it is true, but also in some sense political. By the legal officials of the Government the trial was regarded as practically concluded when the preliminary investigation and examinations had satisfied them of the prisoner's guilt; the public trial was rather to satisfy the public than to elicit the truth, which (so the King's Counsel considered) was already known. For the Government to fail in securing a condemnation would be a discredit and a source of weakness. Yet even when these and all possible allowances are made for Bacon's conduct, it is hard to avoid the feeling that he knows himself to be working, not only for the Government, but also for the King personally, and for his own credit with the King. The old Favourite, if he is not condemned and at least disgraced, will be in the way of the new; it is for the King's convenience that the accused should be put out of the way; hence, the Attorney's sole object is to put him out of the way. The possibility of the prisoner's innocence is not so much as considered; and this though Bacon himself admits that the

1 Professor Gardiner, by a misprint, dates the letter "11 July" (Hist. ii. 361).

evidence was so inadequate as to make it doubtful whether a conviction could be procured even from a jury of hostile Peers. As for the deception which Bacon deliberately suggests to the King, in order to extort a confession from Somerset by some false "glimmering," it cannot be in any way defended or extenuated, even by an appeal to the low moral standard according to which State trials in those days were conducted.

Somerset was kept in the Tower for six years with the judgment of death hanging over his head, probably for the purpose of inducing him to procure a pardon by the intercession of Villiers, whom he was to recompense by the gift of his estate at Sherborne.1 But this he steadily refused to do; and it was not till January, 1622, that he was allowed to leave his prison, still maintaining his innocence. A few months before the King's death, he received a formal pardon for his real or supposed crime.

The Favourite having been cast down, Bacon might possibly hope to realise his dreams of stepping into Salisbury's place as the chief and recognised adviser of the Sovereign. He was not then aware how impotent he or any man of real genius would be to sway the King in comparison with a handsome, active and fluent youth like Villiers. But in any case there still remained one other powerful enemy to overcome before Bacon could rule supreme over English Law as Lord Chancellor. That enemy was the Chief Justice, Sir Edward Coke. The need of the services of Coke during the investigations into the murder of Sir Thomas Overbury, had suspended, but only for a time, Bacon's persistent efforts to overthrow his rival in order to secure the subservience of the Judges, under the King as master, and himself as overseer. An occasion had been afforded by an incident that had occurred some three or four years before. About that time, Mr. John Murray, of his Majesty's bedchamber, had procured a new patent office for making writs in the Common Pleas, and had thereby interfered with the profits of the Prothonotary; by whom an action had consequently been brought in the King's Bench, raising the question of the legality of the Patent. Conceiving that this was a question in which the King's interests

1 Gardiner, ii. 363.

2 An attempt had been made by Elizabeth to create the very same office; but it had been resisted by the Judges, and the Queen had withdrawn her claim.

were affected, Bacon desired to transfer it from the King's Bench to the jurisdiction of the Lord Chancellor, who would be always likely to favour the rights of the Crown. For this purpose he had attempted to stop the proceedings in the King's Bench by a writ De non procedendo, Rege inconsulto ("about not proceeding without consulting the King"); for which a second hearing had been appointed for 20 November, 1615. But when that day drew on, Overbury's death was engaging general attention, and Coke's in particular. By Bacon's advice the King therefore instructed Coke to defer the hearing of the case. It came on again on 27 January, 1616; and on the same day Bacon describes to the King how his faithful Attorney did battle for the Prerogative against the Bar and the Bench:

"There argued on the other part Mr. George Crook, the Judge's brother, an able book-man and one that was manned forth with all the furniture that the Bar could give him (I will not say the Bench) and with the study of a long vacation. I was to answer, which hath a mixture of the sudden; and of myself I will not nor cannot say anything but that my voice served me well for two hours and a half; and those that understood nothing1 could tell me that I lost not one auditor that was present in the beginning but staid till the later end. If I should say more, there were too many witnesses (for I never saw the Court more full) that mought disprove me."

At the conclusion of the speech, "my Lord Coke was pleased to say that it was a famous argument;" and the Attorney, expressing a belief that he has almost turned the tide in favour of the Prerogative, dilates on the importance of a successful issue :

"Sire, I do partly perceive that I have not only stopped but almost turned the stream; and I see how things cool by this, that the Judgesthat were wont to call so hotly upon the business-when they had heard me, of themselves took a fortnights-day to advise what they will do; by which time the term will be near at an end; and I know they little expected to have the matter so beaten down with book-law (upon which my argument wholly went) so that every mean student was satisfied."

But Bacon will not depend upon his own eloquence. He begs the King," because the times are as they are," to command Coke

1 Perhaps, Lady Bacon.