The only thing insisted on was that each should answer for himself, without consulting the others, the same question which, had they been assembled in conference, would have been entertained and answered by them all as a matter of course. If a majority of them, so consulted, had answered no, the prosecution (I imagine) would have been dropped.

Now, unless the Judges had a right to be treated as a party in the State with a collective conscience, I do not clearly see upon what ground they should object to be so consulted. They could not say that they were individually incompetent to form an opinion on such a question without taking advice in common; for that was the very thing they had to do in the ordinary discharge of their duties. Peacham's offence had been committed in Somersetshire. In ordinary course, he would be tried at Taunton before the two Judges who rode the Western Circuit. Those Judges would have to explain the law to the Jury without waiting to consult their fellows. If they did not shrink from the responsibility of declaring their opinion in Court, when it would be a judicial decision and direction carrying life and death, why should they shrink from the responsibility of declaring it to the King, when it would be merely an opinion given for his information, and would determine nothing except whether the trial should proceed or not?

That by answering the King's question they would commit themselves to an opinion formed upon an ex parte statement, might indeed have been justly urged as a reason for objecting to answer,if they were themselves to try the case. But that objection would have applied to an opinion given by the assembled Judges quite as strongly as to one given by each of them separately. And it was not the objection which was really taken; being indeed a discovery of later date, which had not yet occurred to anybody-not even to Coke himself, who was always too ready to give his opinion upon cases which he was himself to try, before they had been half heard; and whose objection in this case to the "auricular" taking of opinions had nothing to do with it. That the "auricular" proceeding, if it had become a regular practice, would have tended to weaken the authority of the Judges as a body, by depriving them of the strength derived from united action and apparent unanimity of opinion, and would have thereby retarded the process by which they were gradually becoming independent of the Crown, is not to be denied; and

1 The Judges by whom Peacham was to be tried were not (as Mr. Gardiner has pointed out) among those whose opinion was in this case required. But that was probably an accident. If he had been tried in the King's Bench I have no reason to think that a different course would have been taken. The Judges of the King's Bench were consulted as the highest authority upon criminal law.

as it is natural for all bodies to struggle after their own independence, it was natural that the Judges, and especially Coke, should dislike it. But the King also had his independence to look after; and if he suspected a combination of the Judges to clip his wings, it was natural that he too should use what powers he had left to break it. By taking the opinion of each separately, he could at least prevent any one among them from dictating the opinions of the rest, and at a time when he certainly had the right to remove any one of them at pleasure from his office, it would be difficult to maintain that he had not the right to ask for his opinion upon a point of law.

Of the other subjects referred to in this letter, the case of Owen will come before us presently in full detail. His offence was much like that of William Talbot,1-the utterance of a treasonable opinion only deeper; inasmuch as he avowed it more distinctly and put it forth more deliberately.

:

What the King's "commandment touching Recusants" was, I have not succeeded in making out. It seems to have had something to do with the fines for recusancy; and from the allusion to "the Lord Treasurer and the Exchequer" as the only means of remedy, we may perhaps conjecture that the object was to prevent those fines from being absorbed by intermediate agents on their way to the royal coffers which must have been the case to a great extent, if £20,000 could be offered for farming them, while the sums actually received by the Crown did not amount to £9000. But the notable thing in the paragraph (which is otherwise too obscure to build inferences on) is Bacon's implied opinion as to the policy of enforcing these penalties. A more stringent proceeding had made recusants "conform in great numbers," but as it could not be hoped that it had converted them, the only effect was the removal of the mark by which the disloyal subjects were distinguished. While the penalty was moderate, the recusant in heart was a recusant in deed. Make it intolerable, and it would be evaded by a general "dispensation or dissimulation," and there would be no means of knowing who was and who was not at heart a recusant.

5.

It was about this time probably that the King endeavoured to assist his Council in their debate with the Judges, by setting forth his own view of the case against Peacham. The following paper,

1 See above, p. 5.

2 Gardiner, ii. p. 414.

1

published in Dalrymple's Memorials' from a manuscript said to be in the King's own handwriting, is important, as containing some evidence from which we may partly infer the character of the libel. The interrogatories upon which Peacham had been examined inform us of the subjects which it treated of, but of the spirit in which they were handled we have no better means of judging, so far as I am aware, than by their effect upon the King's feelings; from which I think, after making all reasonable allowance for the infirmities of the royal temper, we may infer that it was an unusually strong specimen of licentious writing against the Government, such as, if it had been directed against the House of Commons instead of the King, would not in those days have been thought legitimate.

THE TRUE STATE OF THE QUESTION, WHETHER PEACHAM'S CASE BE
TREASON OR NOT.1

THE indictment is grounded upon the statute of Edward the third, that he compassed and imagined the king's death; the indictment then is according to the law, and justly founded; but how is it verified? First, then, I gather this conclusion, that since the indictment is made according to the prescription of law, the process is formal, the law is fulfilled, and the judge and jury are only to hearken to the verification of the hypothesis, and whether the minor be well proved or not.

That his writing of this libel is an overt act, the judges themselves do confess; that it was made fit for publication, the form of it bewrays the self; that he kept not these papers in a secret and safe façon, but in an open house and lidless cask, both himself and the messenger do confess; nay, himself confesseth, that he wrote them at the desire of another man, to whom he should have shown them when they had been perfected, and who craved an account for them, which, though it be denied by the other party, worketh sufficiently against the deponer himself. Nay, he confesses, that in the end he meant to preach it; and though, for diminishing of his fault, he alledges, that he meant first to have taken all the bitterness out of it, that excuse is altogether absurd, for there is no other stuff in, or through it all, but bitterness, which being taken out, it must be a quintessence of an alchimy spirit, without a body, or Popish accidents without substance; and then to what end would he have published such a ghost, or shadow without substance; cui bono; and to what end did he so farce it first with venom, only to scrape it out again; but it had been hard making that sermon to have tasted well, that was once so spiced, quo semel est imbuta recens, etc. But yet this very excuse is by himself overthrown again, confessing, that he meant to retain some of the most crafty malicious parts in it, as, etc. [So the MS.]

The only question that remains then is, whether it may be verified and

1 'Sir David Dalrymple's Memorials,' p. 61.

proved, that, by the publishing of this sermon, or rather libel of his, he compassed or imagined the king's death? which I prove he did, by this reason; had he compiled a sermon upon any other ground, or stuffed the bulk of it with any other matter, and only powdered it, here and there, with some passages of reprehension of the king; or had he never so bitterly railed against the king, and upbraided him of any two or three, though monstrous vices, it might yet have been some way excusable; or yet had he spewed forth all the venom that is in this libel of his, in a railing speech, either in drunkenness, or upon the occasion of any sudden passion or discontentment, it might likewise have been excused in some sort; but, upon the one part, to heap up all the injuries that the hearts of men, or malice of the devil, can invent against the king, to disable him, utterly, not to be a king, not to be a Christian, not to be a man, or a reasonable creature, not worthy of breath here, nor salvation hereafter; and, upon the other part, not to do this hastily or rashly, but after long premeditation, first having made collections in scattered papers, and then reduced it to a method, in a formal treatise, a text chosen for the purpose, a prayer premitted, applying all his wits to bring out of that text what he could, in malam partem, against the king-This, I say, is a plain proof that he intended to compass or imagine, by this means, the king's destruction. For,

will ye look upon the person or quality of the man, it was the far likeliest

means he could use to bring his wicked intention to pass; his person an old, unable and unweildy man; his quality a minister, a preacher, and that in so remote a part of the country, as he had no more means of access to the king's person, than he had ability of body, or resolution of spirit, to act such a desperate attempt with his own hands upon him; and therefore, as every creature is ablest, in their own element, either to defend themselves, or annoy their adversaries, as [birds] in the air, fishes in the waters, and so forth, what so ready and natural means had he whereby to annoy the king as by publishing such a seditious libel, and so, under the specious pretext of conscience, to inflame the hearts of the people against him. Now, here is no illation nor inference made upon the statute; it stands in puris naturalibus, but only a just inference and probation of the guilty intention of this party. So the only thing the judges can doubt of, is of the delinquent's intention; and then the question will be, whether if1 these reasons be stronger to enforce the guiltiness of his intention, or his bare denial to clear him, since nature teaches every man to defend his life as long as he may; and whether, in case there were a doubt herein, the judges should not rather incline to that side wherein all probability lies: but if judges will needs trust better the bare negative of an infamous delinquent, without expressing what other end he could probably have, than all the probabilities, or rather infallible consequences upon the other part, caring more for the safety of such a monster, than the preservation of a crown, in all ages following, whereupon depend the lives of many millions; happy then are all desperate and seditious knaves, but the fortune of this crown is more than miserable. Quod Deus avertat.

1 So printed. The "if" ought apparently to be struck out.

Bacon in the mean time held his conference with Coke according to appointment, and on the 31st of January reported the result in the following letter; which comes from his own collection.

TO THE KING, GIVING HIM AN ACCOUNT OF PEACHAM'S BUSINESS, AND SOME OTHERS.1

It may please your excellent Majesty,

I received this morning by Mr. Murray a message from your Majesty of some warrant and confidence, that I should advertise your Majesty of your business wherein I had part : wherein I am first humbly to thank your Majesty for your good acceptation of my endeavours and service, which I am not able to furnish with any other quality save faith and diligence.

For Peacham's case, I have since my last letter been with my Lord Coke twice; once before Mr. Secretary's going down to your Majesty, and once since, which was yesterday; at the former of which times I delivered him Peacham's papers, and at this latter the precedents which I had with care gathered and selected: for these degrees and order the business required.

At the former I told him that he knew my errand, which stood upon two points, the one to inform him of the particular case of Peacham's treasons, (for I never gave it other word to him), the other to receive his opinion to myself, and in secret, according to my commission from your Majesty.

At the former time he fell upon the same allegation which he had begun at the council-table; that Judges were not to give opinion by fractions, but entirely according to the vote whereupon they should settle upon conference; and that this auricular taking of opinions, single and apart, was new and dangerous; and other words more vehement than I repeat.

I replied in civil and plain terms, that I wished his Lordship in my love to him to think better of it; for that this that his Lordship was pleased to put into great words, seemed to me and my fellows, when we spake of it amongst ourselves, a reasonable and familiar matter; for a king to consult with his judges, either assembled or selected, or one by one. And then to give him a little out-let to save his first opinion (wherewith he is most com2 of in MS.

1 Gibson Papers, vol. viii. f. 12. Fair copy.