in conjunction with officers of inferior rank-as the similar warrant for the torturing of Philip May was, in April 1603, where Coke was the chief examiner-Bacon would have been answerable, though not for the order, yet for the manner in which it was executed. But this was not the case. The warrant was directed to Sir Ralph Winwood and Sir Julius Cæsar, who had themselves as Privy Councillors signed it, together with the Attorney and Solicitor General, the two King's Serjeants (Montagu and Crew), the Lieutenant of the Tower, and the Clerk of the Council;-that is, to the two Privy Councillors, with the Learned Counsel and the officials to assist them. In a commission so composed it was not possible for Bacon to control the proceedings, and therefore it would be unreasonable to hold him answerable for them. The report was drawn up by Winwood, by whom, as the man of highest official rank present, and one very confident of his own abilities, the proceedings were no doubt ordered and the examination conducted. A copy of it, taken from the original,' may be seen in Dalrymple's Memorials and Letters (ed. 1766), and runs thus :

Interrogatories whereupon PEACHAM is to be examined.

Questions in general.

1. WHо procured you, moved you, or advised you, to put in writing these traiterous slanders which you have set down against his majesty's person and government, or any of them?

2. Who gave you any advertisement or intelligence touching those particulars which are contained in your writings; as touching the sale of the crown land, the deceits of the king's officers, the greatness of the king's gifts, his keeping divided courts, and the rest? and who hath conferred with you or discoursed with you concerning those points?

3. Whom have you made privy and acquainted with the said writings, or any part of them? and who hath been your helpers or confederates herein ?

anybody. Indeed the fact that the commissions to the Presidents of the Provin cial Council in Wales contained a clause authorizing the use of Torture in certain cases a fact not noticed by Mr. Jardine (and two commissions containing that clause passed the hand of Čoke as attorney-general)—would itself be conclusive evidence that the Crown lawyers of that day assumed the King in Council to possess the right of using it himself: for of course he could not legally depute a power which he did not legally possess. It is true, no doubt, as Coke discovered afterwards, that "there was no law to warrant tortures in England." But it is also true that the authority under which they were applied was not amenable to the Courts of law. As the House of Commons now assumes the right to commit any commoner to prison for what it judges to be contempt of its authority, so the Crown then assumed the right to put any commoner to torture for what it judged to be obstinacy in refusing to answer interrogatories. As the Judges cannot now call upon the House of Commons to justify the committal, so they could not then call upon the Crown to justify the torture.

Balfour MSS., Advocates' Library, A. 1. 35.

33. 1.7, vol. ii.

4. What use meant you to make of the said writings? was it by preaching them in sermon, or by publishing them in treatise? If in sermon, at what time and in what place meant you to have preached them? If by treatise, to whom did you intend to dedicate or exhibit or deliver such treatise ?

5. What was the reason, and to what end did you first set down in scattered papers, and after knit up in form of a treatise or sermon such a mass of treasonable slanders against the king, his posterity, and the whole state ?

Questions in particular.

6. What moved you to write that the king might be strucken with death on the sudden, or within eight days, as Ananias or Nabal? Do you know of any conspiracy or danger to his person, or have you heard of any such attempt?

7. You have confessed that these things were applied to the king; and that, after the example of preachers and chronicles, kings infirmities are to be laid open. This sheweth plainly your use must be to publish them. Shew to whom, and in what manner?

8. What was the true time when you wrote the said writings, or any part of them? and what was the last time you looked upon them or perused them, before they were found or taken?

9. What moved you to make doubt whether the people will rise against the king for taxes and oppressions? Do you know, or have you heard of any likelihood or purpose of any tumults or commotion ?

10. What moved you to write, that getting of the crown-land again would cost blood, and bring men to say, This is the heir, let us kill him ? Do you know, or have you heard of any conspiracy or danger to the prince, for doubt of calling back the crown-land?

11. What moved you to prove that all the king's officers mought be put to the sword? Do you know, or have you heard if any petition is intended to be made against the king's council and officers, or any rising of people against them?

12. What moved you to say in your writings, That our king, before his coming to the kingdom, promised mercy and judgment, but we find neither? What promise do you mean of? and wherein hath the king broke the same promise?

Upon these interrogatories, Peacham this day was examined before torture, in torture, between tortures, and after torture. Notwithstanding, nothing could be drawn from him, he still persisting in his obstinate and insensible denials, and former answers.1

This last sentence is in the handwriting of Winwood. The interrogatories are

in the hand of a copyist.

Bacon's signature of this report proves that he was present and allowed it to be accurate. Of the part he took in the examination all we know is that he was "not the principal examiner." I cannot find anything written, or reported to have been spoken by him, which would lead me to suppose that he either advised or approved the course that was followed, or expected any good from it. The use of torture," in the highest cases of treason, for discovery"—that is, for the purpose of discovering accomplices or the like-he believed to be legal. An obstinate refusal to declare that which a man has no right to conceal he looked upon as a grave offence, less deserving of compassion perhaps than any other: and where he thought that the obstinacy could be overcome by being made painful, I can imagine him thinking it not only legal, but right, to apply the pain. But that he thought Peacham's case one in which such a process could be employed successfully, seems to me improbable. In that case the thing suspected was not definite enough, the grounds of suspicion were too vague and uncertain, the means of evasion were too many, to allow of the examinate being driven into a position in which he must choose between disclosing the secret and suffering the pain. Winwood, being more familiar with the French than the English procedure in such cases, might think it the best way. But Bacon had had too much experience of the working of the system in England not to foresee that no good would come of it in a case like this; for that the prisoner would only give such answers or make such confessions as might lead to delay; knowing that if it came to the worst he could retract everything that made against him, on the plea that it had been extorted by pain or fear; so that if the case were allowed to rest upon his confessions, it would break down when it came into Court. The precaution which he took to guard against this we shall see hereafter.

t

2.

pre

In the mean time he addressed himself with great zeal to the paration of the case against Peacham for the Judges and Jury. Whether this part of the proceeding had been advised by him or not, I do not know. But it had been resolved by the authorities to indict Peacham for treason; and in those anxious times, when so many doubtful questions were newly stirred, and the Crown was engaged in a struggle so critical, so full of immediate embarrassment, and upon the brink of issues so hazardous, it was of more than usual importance that it should be strengthened with the full authority of the law. Peacham's transgression was on the popular side. An ineffectual

attempt to punish it, especially if frustrated by the opposition of the Judges, would have been not only what was then considered a dishonour to the King, but a substantial damage to the royal authority. It would have been regarded by the opposite party as a victory. It was better to pass the offence by than attempt to punish it at the risk of a defeat; just as at this day no prudent government would prosecute a popular offender, however heinous, before a Jury predetermined to acquit him. The doubt was not about the fact, but about the law; and it was important, before proceeding further, to know what the Judges were likely to say to it. This, as we learn from Winwood's letter, had already been determined upon in Council. The Judges were to be consulted as soon as they arrived in London, and the Council would consider what should be done next, when they had heard their resolution.

If the Judges should take the same view of the case which the Council had done, all would be well. But Bacon appears to have apprehended a disagreement; in which event there would be a difficulty; for the case had gone too far to be dropped without giving a triumph to the disaffected.

In a letter to the King, written two days after the last examination of Peacham, and coming from his own collection, he reminded him of the danger which would arise from the betrayal at that crisis of any dissension between the Government and the Bench.

TO THE KING, CONCERNING PEACHAM'S CAUSE.1

It may please your excellent Majesty,

It grieveth me exceedingly that your Majesty should be so much troubled with this matter of Peacham, whose raging devil seemeth to be turned into a dumb devil. But although we are driven to make our way through questions, (which I wish were otherwise,) yet I hope well the end will be good. But then every man must put to his helping hand. For else I must say to your Majesty in this and the like cases, as St. Paul said to the centurion when some of the mariners had an eye to the cock-boat, Except these stay in the ship ye cannot be safe. I find in my Lords great and worthy care of the business: And for my part I hold my opinion, and am strengthened in it by some records that I have found. God preserve your Majesty. Your Majesty's most humble

21 Jan., 1614.

and devoted subject and servant.

1 Gibson Papers, vol. viii. f. 11; fair copy.

In what way the King improved upon this hint, we shall see presently. In the mean time, not to break the order of chronology, I must dispose of two letters concerning a different matter, of which the proper place by rule of date is here, though the business is too obscure (for any light that I can throw upon it) to be of any inter

est.

3.

The King was now at Royston, and Bacon, when he had occasion to write to him, (having either neglected to cultivate or failed to establish confidential relations with any of the greater persons about the Court) used to entrust his letters to the care of his friend John Murray, of the Bedchamber, who was in constant attendance. This last was enclosed in one concerning some private business of Murray's own, the nature of which is very imperfectly explained. Some grant or patent, probably, which the King meant to bestow upon him, had met with some legal obstruction, for the removal of which it seems that the Judges of the Common Pleas were wished to take order; but of the point in question I know no more than may be gathered from the two letters which follow.

Sir Richard Cox, whose name is mentioned as in some way concerned, was one of the Masters of the Board of Green Cloth. It is not likely that the Judges of the Common Pleas could have had anything to do with a quarrel between him and Sir Thomas Erskine, which is said to have been "taken up and ended by the Lords of the Marshal's Court" above a week before. But a man in his position may very well have been a party in Murray's business, whatever it

was.

TO HIS VERY LOVING FRIEND MR. JOHN MURRAY OF HIS MAJESTY'S BEDCHAMBER THESE.2

Mr. Murray,

I keep the same measure in a proportion with my master and with my friend; which is, that I will never deceive them in anything which is in my power; and when my power faileth my will, I am sorry. But your business goeth well. Monday is the day appointed for performing his Majesty's commandment: till then, I cannot tell what to advise you furder, except it should be this. That in case the Judges should refuse to take order in it them2 Balfour MSS.

1 Chamberlain to Carleton, 12 Jan. 1614-5.

VOL. V.

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