selves, then you must think of some warrant to Mr. Secretary (who is your friend, and constant in the business) that he see forthwith his Majesty's commandment executed, touching the double lock; and, if need be, repair to the place and see by view the manner of keeping the seal; and take order, that there be no stay for working of the seal of justice, nor no prejudice to Killigrew's farm, nor to the duty of money paid to the Chief Justice. Whether this may require your presence, as you write, that yourself can best judge. But of this more, when we have received the Judges' answer. It is my duty, as much as in me is, to procure my master to be obeyed. I ever rest Your friend loving and assured

21st Januar. 1614.

I pray deliver the enclosed letter to his Majesty.

FR. BACON.

To THE SAME.1

Mr. Murray,

My Lord Chancellor yesterday,' in my presence, had before him the Judges of the Common Pleas, and hath performed his Majesty's royal commandments in a very worthy fashion, such as was fit for our master's greatness; and because the King may know it, I send you the inclosed. This seemeth to have wrought the effect desired; for presently I sent for Sir Richard Cox, and willed him to present himself to my lord Hubberd, and signify his readiness to attend. He came back to me; and told me all things went on. I know not what after-tricks may be; but I think this long chase is at an end. I ever rest

25 Januar. 1614.

4.

Your's assured,

FR. BACON.

in

The next letter brings us back to Peacham and to a passage Bacon's professional career which has drawn upon him heavy censure in modern times. So large a part however of this censure rests upon a demonstrable misconception of facts, that I shall take the liberty of treating the case as one which has not been disposed of; and ask 2 Tuesday, Jan. 24.

1 Balfour MSS.

the reader in the first place to hear the story as I shall tell it. Of the truth of my narrative he will be able to judge for himself, as the whole of the evidence is contained in the papers which I shall have to lay before him.

Approving the resolution of the Council, as reported by Winwood (see note p. 91), the King determined to ascertain the opinion of the Judges on the point of law, before proceeding further. In this there was nothing unusual-nothing which anybody at that time would have dreamed of objecting to. In spite of some sweeping assertions to the contrary, it may be stated roundly that for the law officers of the Crown to consult with the Judges beforehand in doubtful cases about to be tried, was at that time the ordinary course of proceeding;—was so then and continued to be so long after. Nor is it necessary to spend words in proving it, because proofs enough will occur incidentally in the following correspondence to satisfy anybody. But in the course which the King proposed to pursue on this occasion there was one novelty which caused some trouble at the time, and though the history of it is quite simple, the motive quite intelligible, and the end (so far as I can see) quite innocent, has suffered extraordinary misinterpretation since. The King was himself persuaded that the case for the prosecution was good in law: but he wished to be sure that the Judges would take the same view of the case which he did. What he wanted, if we may judge of his intentions by his actions, was not to control their opinions, but to know what they were. Experience however had taught him that it was not an easy thing to obtain the opinions of the other Judges when Coke was among them, who so overcrowed them by the weight of his reputation, the overwhelming resources of his legal erudition, his mastery in law-logic whereby he could turn the edge of the law which way he pleased, and above all by sheer strength of will, that they had no opinions of their own: and James, being by this time no contemptible lawyer himself, and knowing very well that Coke, however overwhelming, was far from infallible, had a mind to know what the others would think when they had no prompter. Accordingly, he desired to have their opinions taken separately, each answering for himself without any communication with his fellows.

This, from all I can collect, was entirely his own device and was first intimated in a letter to the Council giving express directions that it should be done. The letter was read at the Council Table, when Coke was present, on the 27th of January. What followed, Bacon's report written the same evening will best tell.

A LETTER TO THE KING, TOUCHING PEACHAM'S CAUSE.1

It may please your excellent Majesty,

This day in the afternoon was read your Majesty's letters of direction touching Peacham; which because it concerneth properly the duty of my place, I thought it fit for me to give your Majesty both a speedy and a private account thereof; that your Majesty knowing things clearly how they pass, may have the true fruit of your own wisdom and clear-seeing judgment in governing the business.

3

First, for the regularity which your Majesty (as a master in business of estate) doth prudently prescribe in examining and taking examinations, I subscribe to it; only I will say for myself, that I was not at this time the principal examiner.

For the course your Majesty directeth and commandeth for the feeling of the Judges of the King's Bench their several opinions, by distributing ourselves and enjoining secrecy, we did first find an encounter in the opinion of my Lord Coke, who seemed to affirm that such particular and (as he called it) auricular taking of opinions was not according to the custom of this realm; and seemed to divine that his brethren would never do it. But when I replied that it was our duty to pursue your Majesty's directions, and it were not amiss for his Lordship to leave his brethren to their own answers; it was so concluded : and his Lordship did desire that I mought confer with himself; and Mr. Serjeant Montague was named to speak with Justice Crooke; Mr. Serjeant Crew with Justice Haughton; and Mr. Solicitor with Justice Dodderidge. This done, I took my fellows aside, and advised that they should presently speak with the three Judges, before I could speak with my Lord Coke, for doubt of infusion; and that they should not in any case make any doubt to the Judges, as if they mistrusted they would not deliver any opinion apart, but speak resolutely to them, and only make their coming to be, to know what time they would appoint to be attended with the papers. This sorted not amiss; for Mr. Solicitor came to me this evening, and related to me that he had found Judge Dodderidge very ready to give opinion in secret; and fell upon the same reason which upon your Majesty's

first letter I had used to my Lord Coke at the council-table: which was, that every Judge was bound expressly by his oath to give your Majesty counsel when he was called; and whether he should do it jointly or severally, that rested in your Majesty's good pleasure, as you would require it. And though the ordinary course was to assemble them, yet there mought intervene cases wherein the other course was more convenient. The like answer made Justice Crooke. Justice Haughton (who is a soft man) seemed desirous first to confer; alleging that the other three Judges had all served the crown before they were Judges, but that he had not been much acquainted with business of this nature.

We purpose therefore forthwith1 they shall be made acquainted with the papers; and if that could be done as suddenly as this was, I should make small doubt of their opinions and howsosoever, I hope force of law and precedent will bind them to the truth neither am I wholly out of hope, that my Lord Coke himself, when I have in some dark manner put him in doubt that he shall be left alone, will not continue singular.

For Owen, I know not the reason why there should have been no mention made thereof in the last advertisement: for I must say for myself that I have lost no moment of time in it, as my Lord of Canterbury can bear me witness. For having received from my Lord an additional of great importance; which was, that Owen of his own accord after examination should compare the case of your Majesty (if you were excommunicate) to the case of a prisoner condemned at the bar, which additional was subscribed by one witness; but yet I perceived it was spoken aloud, and in the hearing of others: I presently sent down a copy thereof, which is now come up, attested with the hands of three more, lest there should have been any scruple of singularis testis. So as for this case I may say, omnia parata; and we expect but a direction from your Majesty for the acquainting the Judges severally; or the four Judges' of the King's Bench, as your Majesty shall think good.

I forget not, nor forslow not, your Majesty's commandment touching Recusants; of which, when it is ripe, I will give your Majesty a true account, and what is possible to be done, and where the impediment is. Mr. Secretary bringeth bonam volun1 that forthwith: A.

2 that: A.

3 with it: A.

4

om. A.

tatem, but he is not versed much in these things: and sometimes urgeth the conclusion without the premises, and by haste hindereth. It is my Lord Treasurer, and the Exchequer must help it, if it be holpen. I have heard more ways than one, of an offer of 20,000l. per annum, for farming the penalties of recusants, not including any offence capital or of præmunire; wherein I will presume to say, that my poor endeavours, since I was by your great and sole grace your Attorney, have been no small spurs to make them feel your laws, and seek this redemption; wherein I must also say, my Lord Coke hath done his part: and I do assure your Majesty, I know it somewhat inwardly and groundedly, that by the courses we have taken they conform daily and in great numbers. And3 I would to God it were as well a conversion as a conformity: but if it should be by dispensation or dissimulation, then I fear that whereas your Majesty hath now so many ill subjects poor and detected, you shall then have them rich and dissembled. And therefore I hold this offer very considerable, of so great an increase of revenue: if it can pass the fiery trial of religion and honour, which I wish all projects may pass.

Thus, in as much as I have made to your Majesty somewhat a naked and particular account of business, I hope your Majesty will use it accordingly. God preserve your Majesty.

Your Majesty's most humble

and devoted subject and servant,

FR. BACON.

This Friday late at

night, 27 Janu. 1614.7

From the first four paragraphs of this letter we learn distinctly what the proposed innovation really was. A case in law was to be submitted to each of the Judges of the King's Bench. Each was to be asked his personal opinion whether a specified offence amounted to treason. There was to be no attempt to deceive, or overbear, or otherwise deal unfairly with his judgment. The grounds of the indictment, with the records and precedents upon which it was justified, were to be laid before him, and his opinion was to be asked whether such an indictment would be good and sufficient in law,— whether, in short, it was a case fit to go into Court with. No time was limited for the answer. No form of answer was prescribed.

7 So A. R merely gives the date at the head of the letter.

6 through which : A.