committed to custody for a libel on his superior, James Montagu (1568?–1618), bishop of Bath and Wells. In searching his house for certain papers, the officers came upon some loose sheets stitched together in the form of a sermon, the contents of which were of such a nature that it was judged right to lay them before the council. As it was at first suspected that the writing of this book had been prompted by some disaffected persons, Peacham was interrogated, and after he had declined to give any information, was subjected to torture. Bacon, as one of the learned counsel, was ordered by the council to take part in this examination, which was undoubtedly warranted by precedent, whatever may now be thought of it. Nothing, however, was extracted from Peacham in this way, and it was resolved to proceed against him for treason. Now, in the excited state of popular feeling at that period, the failure of government to substantiate an accusation of treason would have been a serious matter. The king, with whom the council agreed, seems therefore to have thought it desirable to obtain beforehand the opinions of the four chief judges as to whether the alleged offence amounted to treason. In this there was nothing unusual or illegal, and no objection would at that time have been made to it, but James introduced a certain innovation; he proposed that the opinions of the four judges should be given separately and in private. It may be reasonably inferred that his motive for this was the suspicion, or it may be the knowledge, that Coke did not consider the matter treasonable. At all events when Coke, who as a councillor already knew the facts of the case, was consulted regarding the new proposal of the king, he at once objected to it, saying that “this particular and auricular taking of opinions” was “new and dangerous,” and “not according to the custom of the realm.” He at last reluctantly assented, and proposed that Bacon should consult with him, while the other law officers addressed themselves to the three puisne judges. By Bacon’s directions the proposal to the three judges to give their opinions separately was made suddenly and confidently, and any scruples they might have felt were easily overcome. The first step was thus gained, and it was hoped that if “infusion” could be avoided, if the papers bearing on the case were presented to the judges quickly, and before their minds could be swayed by extraneous influence, their decision on the case would be the same as that of the king. It is clear that the extraneous influence to be feared was Coke, who, on being addressed by Bacon, again objected to giving his opinion separately, and even seemed to hope that his brother judges after they had seen the papers would withdraw their assent to giving their decisions privately. Even after the discussion of the case with Bacon, he would not give his opinion until the others had handed in theirs. What the other judges thought is not definitely known, but Bacon appears to have been unable to put in operation the plan he had devised for swaying Coke’s judgment,[1] or if he did attempt it, he was unsuccessful, for Coke finally gave an opinion consistent with what he seems to have held at first, that the book was not treasonable, as it did not disable the king’s title. Although the opinions of the judges were not made public, yet as we learn, not only from Bacon, but from a sentence in one of Carleton’s letters,[2] a rumour had got about that there was doubt as to the book being treasonable. Under these circumstances, Bacon, who feared that such a report might incite other people to attempt a similar offence, proposed to the king that a second rumour should be circulated in order to destroy the impression caused by the first. “I do think it necessary,” he says, “that because we live in an age in which no counsel is kept, and that it is true there is some bruit abroad that the judges of the king’s bench do doubt of the case that it should not be treason, that it be given out constantly, and yet as it were in secret, and so a fame to slide, that the doubt was only upon the publication, in that it was never published. For that (if your majesty marketh it) taketh away or at least qualifieth the danger of the example; for that will be no man’s case.”[3] Bacon’s conduct in this matter has been curiously misrepresented. He has been accused of torturing the prisoner, and of tampering with the judges[4] by consulting them before the trial; nay, he is even represented as selecting this poor clergyman to serve for an example to terrify the disaffected, as breaking into his study and finding there a sermon never intended to be preached, which merely encouraged the people to resist tyranny.[5] All this lavish condemnation rests on a complete misconception of the case. If any blame attaches to him, it must arise either from his endeavour to force Coke to a favourable decision, in which he was in all probability prompted by a feeling, not uncommon with him, that a matter of state policy was in danger of being sacrificed to some senseless legal quibble or precedent, or from his advice to the king that a rumour should be set afloat which was not strictly true.
Bacon’s share in another great trial which came on shortly afterwards, the Overbury and Somerset case, is not of such a nature as to render it necessary to enter upon it in detail.[6] It may be noted, however, that his letters about this time show that he had become acquainted with the king’s new favourite, the brilliant Sir George Villiers, and that he stood high in the king’s good graces. In the early part of 1616, when Thomas Egerton, Baron Ellesmere (c. 1540–1617), the lord chancellor, was dangerously ill, Bacon wrote a long and careful letter to the king, proposing himself for the office, should it fall vacant, and stating as frankly as possible of what value he considered his services would be. In answer, he appears to have received a distinct promise of the reversion of the office; but, as Ellesmere recovered, the matter stood over for a time. He proposed, however, that he should be made a privy councillor, in order to give him more weight in his almost recognized position of adviser to the king, and on the 9th of June 1616 he took the oaths and his seat at the council board.
Meanwhile, his great rival Coke, whose constant tendency to limit the prerogative by law and precedent had made him an object of particular dislike to James, had on two points come into open collision with the king’s rights. The first case was an action of praemunire against the court of chancery, evidently instigated by him, but brought at the instance of certain parties whose adversaries had obtained redress in the chancellor’s court after the cause had been tried in the court of king’s bench. With all his learning and ingenuity Coke failed in inducing or even forcing the jury to bring in a bill against the court of chancery, and it seems fairly certain that on the technical point of law involved he was wrong. Although his motive was, in great measure, a feeling of personal dislike towards Ellesmere, yet it is not improbable that he was influenced by the desire to restrict in every possible way the jurisdiction of a court which was the direct exponent of the king’s wishes. The other case, that of the commendams, was more important in itself and in the circumstances connected with it. The general question involved in a special instance was whether or not the king’s prerogative included the right of granting at pleasure livings in commendam, i.e. to be enjoyed by one who was not the incumbent. Bacon, as attorney-general, delivered a speech, which has not been reported; but the king was informed that the arguments on the other side had not been limited to the special case, but had directly impugned the general prerogative right of granting livings. It was necessary for James, as a party interested, at once to take measures to see that the decision of the judges should not be given on the general question without due consultation. He accordingly wrote to Bacon, directing him to intimate to the judges his pleasure that they should delay judgment until after discussion of the matter with himself. Bacon communicated first with Coke, who in reply desired that similar notice should be given to the other judges. This was done by Bacon, though he seems to hint that in so doing he was
- ↑ Letters and Life, v. 101
- ↑ Ibid. v. 121, n.
- ↑ Ibid. v. 124.
- ↑ Macaulay’s Essay.
- ↑ Campbell, Lives, ii. 344.
- ↑ The mysterious crimes supposed to be concealed under the obscure details of this case have cast a shadow of vague suspicion on all who were concerned in it. The minute examination of the facts by Spedding (Letters and Life, v. 208-347) seems to show that these secret crimes exist nowhere but in the heated imaginations of romantic biographers and historians.
