When Bacon had concluded his part of the case, Ellesmere, who presided, urged Somerset to confess his guilt. 'No, my lord,' said the Earl calmly, 'I came hither with a resolution to defend myself.'
Montague then endeavoured to demonstrate that the poison of which Overbury died had been administered with Somerset's knowledge. But he could get no further than this: that Somerset had been in the habit of sending powders, as well as tarts and jellies, to Overbury; but he did not, and could not prove that the powders were poisonous. Nor was Serjeant Crew able to advance the case beyond the point reached by Bacon; he could argue only on the assumption of Somerset's guilt, which his colleagues had failed to establish.
In our own day it would be held that the case for the prosecution had completely broken down; and I must add my conviction that Somerset was in no way privy to Overbury's murder. He had assented to his imprisonment, because he was weary of his importunity; but he still retained a kindly feeling towards him, and was evidently grieved at the serious nature of his illness. As a matter of fact, it was not proved even that Overbury died of poison, though I admit that this is put beyond doubt by collateral circumstances. Somerset's position, however, before judges who were more or less hostilely disposed, with the agents of the Crown bent on obtaining his conviction, and he himself without legal advisers, was both difficult and dangerous. He was embarrassed by the necessity of keeping back part of his case. He was unable to tell the whole truth about Overbury's imprisonment. He could not make known all that had passed between Lady Essex and himself before marriage, or that Overbury had been committed to the Tower to prevent him from giving evidence which would have certainly quashed Lady Essex's proceedings for a divorce. And, in truth, if he mustered up courage to tell this tale of shame, he could not hope that the peers, most of whom were his enemies, would give credence to it, or that, if they believed it, they would refrain from delivering an adverse verdict.
Yet he bore himself with courage and ability, when, by the flickering light of torches, for the day had gone down, he rose to make his defence. Acknowledging that he had consented to Overbury's imprisonment in order that he might throw no obstacles in the way of his marriage with Lady Essex, he firmly denied that he had known anything of attempts to poison him. The tarts he had sent were wholesome, and of a kind to which Overbury was partial; if any had been tampered with, he was unaware of it. The powders he had received from Sir Robert Killigrew, and simply sent them on; and Overbury had admitted, in a letter which was before the Court, that they had done him no mischief. Here Crew interrupted: The three powders from Killigrew had been duly accounted for; but there was a fourth powder, which had not been accounted for, and had (it was assumed) contained poison. Now, it was improbable that the Earl could remember the exact history of every powder sent to Overbury two years before, and, besides, it was a mere assumption on the part of the prosecution that this fourth powder was poison. But Somerset's inability to meet this point was made the most of, and gave the peers a sufficient pretext for declaring him guilty. The Earl received his sentence with the composure he had exhibited throughout the arduous day, which had shown how a nature enervated by luxury and indulgence can be braced up by the chill air of adversity, and contented himself with expressing a hope that the Court would intercede with the King for mercy.