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All this frightful story Mr. Montagu relates fairly. He neither conceals nor
distorts any material fact. But he can see nothing deserving of condemnation in
Bacon's conduct. He tells us most truly that we ought not to try the men of one
age by the standard of another; that Sir Matthew Hale is not to be pronounced a
bad man because he left a woman to be executed for witchcraft; that posterity
will not be justified in censuring judges of our time, for selling offices in
their courts, according to the established practice, bad as that practice was;
and that Bacon is entitled to similar indulgence. "To persecute the lover of
truth," says Mr. Montagu, "for opposing established customs, and to censure him
in after ages for not having been more strenuous in opposition, are errors which
will never cease until the pleasure of self-elevation from the depression of
superiority is no more."
We have no dispute with Mr. Montagu about the general proposition. We assent to
every word of it. But does it apply to the present case? Is it true that in the
time of James the First it was the established practice for the law-officers of
the Crown to hold private consultations with the judges, touching capital cases
which those judges were afterwards to try? Certainly not. In the very page in
which Mr. Montagu asserts that "the influencing a judge out of court seems at
that period scarcely to have been considered as improper," he give the very
words of Sir Edward Coke on the subject. "I will not thus declare what may be my
judgment by these auricular confessions of new and pernicious tendency, and not
according to the customs of the realm." Is it possible to imagine that Coke, who
had himself been Attorney-General during thirteen years, who had conducted a far
greater number of important State prosecutions than any other lawyer named in
English history, and who had passed with scarcely any interval from the
Attorney-Generalship to the first seat in the first criminal court in the realm,
could have been startled at an invitation to confer with the Crown-lawyers, and
could have pronounced the practice new, if it had really been an established
usage? We well know that, where property only was at stake, it was then a
common, though a most culpable practice, in the judges, to listen to private
solicitation. But the practice of tampering with judges in order to procure
capita; convictions we believe to have been new, first, because Coke, who
understood those matters better than any man of his time, asserted it to be new;
and secondly, because neither Bacon nor Mr. Montagu has shown a single
precedent.
How then stands the case? Even thus: Bacon was not conforming to an usage then
generally admitted to be proper. He was not even the last lingering adherent of
an old abuse. It would have been sufficiently disgraceful to such a man to be in
this last situation. Yet this last situation would have been honorable compared
with that in which he stood. He was guilty of attempting to introduce into the
courts of law an odious abuse for which no precedent could be found.
Intellectually, he was better fitted than any man that England has ever produced
for the work of improving her institutions. But, unhappily, we see that he did
not scruple to exert his great powers for the purpose of introducing into those
institutions new corruptions of the foulest kind.
The same, or nearly the same, may be said of the torturing of Peacham. If it be
true that in the time of James the First the propriety of torturing prisoners
was generally allowed, we should admit this as an excuse, though we should admit
it less readily in the case of such a man as Bacon than in the case of an
ordinary lawyer or politician. But the fact is, that the practice of torturing
prisoners was then generally acknowledged by lawyers to be illegal, and was
execrated by the public as barbarous. More than thirty years before Peacham's
trial, that practice was so loudly condemned by the voice of the nation that
Lord Burleigh found it necessary to publish an apology for having occasionally
resorted to it. But, though the dangers which then threatened the Government
were of a very different kind from those which were to be apprehended from
anything that Peacham could write, though the life of the Queen and the dearest
interests of the State were in jeopardy, though the circumstances were such that
all ordinary laws might seem to be superseded by that highest law, the public
safety, the apology did not satisfy the country; and the Queen found it
expedient to issue an order positively forbidding the torturing of
State-prisoners on any pretence whatever. From that time, the practice of
torturing, which had always been unpopular, which had always been illegal, had
also been unusual. It is well known that in 1628, only fourteen years after the
time when Bacon went to the Tower to listen to the yells of Peacham, the judges
decided that Felton, a criminal who neither deserved nor was likely to obtain
any extraordinary indulgence, could not lawfully be put to the question. We
therefore say that Bacon stands in a very different situation from that in which
Mr. Montagu tries to place him. Bacon was here distinctly behind his age. He was
one of the last of the tools of power who persisted in a practice the most
barbarous and the most absurd that has ever disgraced jurisprudence, in a
practice of which, in the preceding generation, Elizabeth and her Ministers had
been ashamed, in a practice which, a few years later, no sycophant in all the
Inns of Court had the heart or the forehead to defend.1
Bacon far behind his age! Bacon far behind Sir Edward Coke! Bacon clinging to
exploded abuses! Bacon withstanding the progress of improvement! Bacon
struggling to push back the human mind! The words seem strange. They sound like
a contradiction in terms. Yet the fact is even so: and the explanation may be
readily found by any person who is not blinded by prejudice. Mr. Montagu cannot
believe that so extraordinary a man as Bacon could be guilty of a bad action; as
if history were not made up of the bad actions of extraordinary men, as if all
the most noted destroyers and deceivers of our species, all the founders of
arbitrary governments and false religions, had not been extraordinary men, as if
nine-tenths of the calamities which have befallen the human race had any other
origin than the union of high intelligence with low desires.
Bacon knew this well. He has told us that there are persons "scientia tanquam
angeli alati, cupiditatibus vero tanquam serpentes qui humi reptant";2 and it did not require his admirable sagacity and
his extensive converse with mankind to make the discovery. Indeed, he had only
to look within. The difference between the soaring angel and the creeping snake
was but a type of the difference between Bacon the philosopher and Bacon the
Attorney-General, Bacon seeking for truth, and Bacon seeking for the Seals.
Those who survey only one-half of his character may speak of him with unmixed
admiration or with unmixed contempt. But those only judge of him correctly who
take in at one view Bacon in speculation and Bacon in action. They will have no
difficulty in comprehending how one and the same man should have been far above
his age and far behind it, in one line the boldest and most useful of
innovators, in another one the most obstinate champion of the foulest abuses. In
his library, all his rare powers were under the guidance of an honest ambition,
of all enlarged philanthropy, of a sincere love of truth. There, no temptation
drew him away from the right course. Thomas Aquinas could pay no fees. Duns Scotus could confer no peerages. The Master of the Sentences had no rich
reversions in his gift. Far different was the situation of the great philosopher
when he came forth from his study and his laboratory to mingle with the crowd
which filled the galleries of Whitehall. In all that crowd there was no man
equally qualified to render great and lasting services to mankind. But in all
that crowd there was not a heart more set on things which no man ought to suffer
to be necessary to his happiness, on things which can often be obtained only by
the sacrifice of integrity and honor. To be the leader of the human race in the
career of improvement, to found on the ruins of ancient intellectual dynasties a
more prosperous and a more enduring empire, to be revered by the latest
generations as the most illustrious among the benefactors of mankind, all this
was within his reach, But all this availed him nothing, while some quibbling
special pleader was promoted before him to the bench, while some heavy country
gentleman took precedence of him by virtue of a purchased coronet, while some
pander, happy in a fair wife, could obtain a more cordial salute from
Buckingham, while some buffoon, versed in all the latest scandal of the Court,
could draw a louder laugh from James.
During a long course of years, Bacon's unworthy ambition was crowned with
success. His sagacity early enabled him to perceive who was likely to become the
most powerful man in the kingdom. He probably knew the King's mind before it was
known to the King himself, and attached himself to Villiers, while the less
discerning crowd of courtiers still continued to fawn on Somerset, The influence
of the younger favorite became greater daily. The contest between the rivals
might, however, have lasted long, but for that frightful crime which, in spite
of all that could be effected by the research and ingenuity of historians, is
still covered with so mysterious an obscurity. The descent of Somerset had been
a gradual and almost imperceptible lapse. It now became a headlong fall; and
Villiers, left without a competitor, rapidly rose to a height of power such as
no subject since Wolsey had attained.
There were many points of resemblance between the two celebrated courtiers who,
at different times, extended their patronage to Bacon. It is difficult to say
whether Essex or Villiers was more eminently distinguished by those graces of
person and manner which have always been rated in courts at much more than their
real value. Both were constitutionally brave; and both, like most men who are
constitutionally brave, were open and unreserved. Both were rash and
head-strong. Both were destitute of the abilities and of the information which
are necessary to statesmen. Yet both, trusting to the accomplishments which had
made them conspicuous in tilt-yards and ball-rooms, aspired to rule the State.
Both owed their elevation to the personal attachment of the sovereign; and in
both cases this attachment was of so eccentric a kind, that it perplexed
observers, that it still continues to perplex historians, and that it gave rise
to much scandal which we are inclined to think unfounded. Each of them treated
the sovereign whose favor he enjoyed with a rudeness which approached to
insolence. This petulance ruined Essex, who had to deal with a spirit naturally
as proud as his own, and accustomed, during near half a century, to the most
respectful observance. But there was a wide difference between the haughty
daughter of Henry and her successor. James was timid from the cradle. His
nerves, naturally weak, had not been fortified by reflection or by habit. His
life, till he came to England, had been a series of mortifications and
humiliations. With all his high notions of the origin and extent of his
prerogatives, he was never his own master for a day. In spite of his kingly
title, in spite of his despotic theories, he was to the last a slave at heart.
Villiers treated him like one; and this course, though adopted, we believe,
merely from temper, succeeded as well as if it had been a system of policy
formed after mature deliberation.
In generosity, in sensibility, in capacity for friendship, Essex far surpassed
Buckingham. Indeed, Buckingham can scarcely be said to have had any friend, with
the exception of the two princes over whom successively he exercised so
wonderful an influence. Essex was to the last adored by the people. Buckingham
was always a most unpopular man, except perhaps for a very short time after his
return from the childish visit to Spain. Essex fell a victim to the rigor of the
Government amidst the lamentations of the people. Buckingham, execrated by the
people, and solemnly declared a public enemy by the representatives of the
people, fell by the hand of one of the people, and was lamented by none but his
master.
The way in which the two favorites acted towards Bacon was highly
characteristic, and may serve to illustrate the old and true saying, that a man
is generally more inclined to feel kindly towards one on whom he has conferred
favors than towards one from whom he has received them. Essex loaded Bacon with
benefits, and never thought that he had done enough. It seems never to have
crossed the mind of the powerful and wealthy noble that the poor barrister whom
he treated with such munificent kindness was not his equal. It was, we have no
doubt, with perfect sincerity that the Earl declared that he would willingly
give his sister or daughter in marriage to his friend. He was in general more
than sufficiently sensible of his own merits; but he did not seem to know that
he had ever deserved well of Bacon. On that cruel day when they saw each other
for the last time at the bar of the Lords, Essex taxed his perfidious friend
with unkindness and insincerity, but never with ingratitude. Even in such a
moment, more bitter than the bitterness of death, that noble heart was too great
to vent itself in such a reproach.
Villiers, on the other hand, owed much to Bacon. When their acquaintance began,
Sir Francis was a man of mature age, of high station, and of established fame as
a politician, an advocate, and a writer. Villiers was little more than a boy, a
younger son of a house then of no great note. He was but just entering on the
career of court favor; and none but the most discerning observers could as yet
perceive that he was likely to distance all his competitors. The countenance and
advice of a man so highly distinguished as the Attorney-General, must have been
an object of the highest importance to the young adventurer. But though Villiers
was the obliged party, he was far less warmly attached to Bacon, and far less
delicate in his conduct towards Bacon, than Essex had been.
To do the new favorite justice, he early exerted his influence in behalf of his
illustrious friend. In 1616 Sir Francis was sworn of the Privy Council, and in
March 1617, on the retirement of Lord Brackley, was appointed Keeper of the
Great Seal.
On the seventh of May, the first day of term, he rode in state to Westminster
Hall, with the Lord Treasurer on his right hand, the Lord Privy Seal on his
left, a long procession of students and ushers before him, and a crowd of peers,
privy-councilors, and judges following in his train. Having entered his court,
he addressed the splendid auditory in a grave and dignified speech, which proves
how well he understood those judicial duties which he afterwards performed so
ill. Even at that moment, the proudest moment of his life in the estimation of
the vulgar, and, it may be, even in his own, he cast back a look of lingering
affection towards those noble pursuits from which, as it seemed, he was about to
be estranged. "The depth of the three long vacations," said he, "I would reserve
in some measure free from business of estate, and for studies, arts, and
sciences, to which of my own nature I am most inclined."
The years during which Bacon held the Great Seal were among the darkest and most
shameful in English history. Everything at home and abroad was mismanaged. First
came the execution of Raleigh, an act which, if done in a proper manner, might
have been defensible, but which, under all the circumstances, must be considered
as a dastardly murder. Worse was behind: the war of Bohemia, the successes of
Tilly and Spinola, the Palatinate conquered, the King's son-in-law an exile, the
House of Austria dominant on the Continent, the Protestant religion and the
liberties of the Germanic body trodden under foot. Meanwhile, the wavering and
cowardly policy of England furnished matter of ridicule to all the nations of
Europe. The love of peace which James professed would, even when indulged to an
impolitic excess, have been respectable, if it had proceeded from tenderness for
his people. But the truth is, that, while he had nothing to spare for the
defense of the natural allies of England, he resorted without scruple to the
most illegal and oppressive devices, for the purpose of enabling Buckingham and
Buckingham's relations to outshine the ancient aristocracy of the realm.
Benevolences were exacted. Patents of monopoly were multiplied. All the
resources which could have been employed to replenish a beggared exchequer, at
the close of a ruinous war, were put in motion during this season of ignominious
peace.
The vices of the administration must be chiefly ascribed to the weakness of the
King and to the levity and violence of the favorite. But it is impossible to
acquit the Lord Keeper of all share in the guilt. For those odious patents, in
particular, which passed the Great Seal while it was in his charge, he must be
held answerable. In the speech which he made on first taking his seat in his
court, he had pledged himself to discharge this important part of his functions
with the greatest caution and impartiality. He had declared that he "would walk
in the light," "that men should see that no particular turn or end led him, but
a general rule." Mr. Montagu would have us believe that Bacon acted up to these
professions, and says that "the power of the favorite did not deter the Lord
Keeper from staying grants and patents when his public duty demanded this
interposition." Does Mr. Montagu consider patents of monopoly as good things? or
does he mean to say that Bacon staid every patent of monopoly that came before
him? Of all patents in our history, the most disgraceful was that which was
granted to Sir Giles Mompesson, supposed to be the original of Massinger's
Overreach, and to Sir Francis Michell, from whom justice Greedy is supposed to
have been drawn, for the exclusive manufacturing of gold and silver lace. The
effect of this monopoly was of course that the metal employed in the manufacture
was adulterated, to the great loss of the public. But this was a trifle. The
patentees were armed with powers as great as have ever been given to farmers of
the revenue in the worst governed countries. They were authorized to search
houses and to arrest interlopers; and these formidable powers were used for
purposes viler than even those for which they were given, for the wreaking of
old grudges, and for the corrupting of female chastity. Was not this a case in
which public duty demanded the interposition of the Lord Keeper? And did the
Lord Keeper interpose? He did. He wrote to inform the King, that he "had
considered of the fitness and conveniency of the gold and silver thread
business," "that it was convenient that it should be settled," that he "did
conceive apparent likelihood that it would redound much to his Majesty's
profit," that, therefore, "it were good it were settled with all convenient
speed." The meaning of all this was, that certain of the House of Villiers were
to go shares with Overreach and Greedy in the plunder of the public. This was
the way in which, when the favorite pressed for patents, lucrative to his
relations and to his creatures, ruinous and vexatious to the body of the people,
the chief guardian of the laws interposed. Having assisted the patentees to
obtain this monopoly, Bacon assisted them also in the steps which they took for
the purpose of guarding it. He committed several people to close confinement for
disobeying his tyrannical edict. It is needless to say more. Our readers are now
able to judge whether, in the matter of patents, Bacon acted conformably to his
professions, or deserved the praise which his biographer has bestowed on him.
In his judicial capacity his conduct was not less reprehensible. He suffered
Buckingham to dictate many of his decisions. Bacon knew as well as any man that
a judge who listens to private solicitations is a disgrace to his post. He
himself, before he was raised to the woolsack, represented this strongly to
Villiers, then just entering on his career. "By no means," said Sir Francis, in
a letter of advice addressed to the young courtier, "by no means be you
persuaded to interpose yourself, either by word or letter, in any cause
depending in any court of justice, nor suffer any great man to do it where you
can hinder it. If it should prevail, it perverts justice; but if the judge be so
just, and of such courage as he ought to be, as not to be inclined thereby, yet
it always leaves a taint of suspicion behind it." Yet he had not been Lord
Keeper a month when Buckingham began to interfere in Chancery suits; and
Buckingham's interference was, as might have been expected, successful.
Mr. Montagu's reflections on the excellent passage which we have quoted above
are exceedingly amusing. "No man," says he, "more deeply felt the evils which
then existed of the interference of the Crown and of statesmen to influence
judges. How beautifully did he admonish Buckingham, regardless as he proved of
all admonition!" We should be glad to know how it can be expected that
admonition will be regarded by him who receives it, when it is altogether
neglected by him who gives it. We do not defend Buckingham; but what was his
guilt to Bacon's? Buckingham was young, ignorant, thoughtless, dizzy with the
rapidity of his ascent and the height of his position. That he should be eager
to serve his relations, his flatterers, his mistresses, that he should not fully
apprehend the immense importance of a pure administration of justice, that he
should think more about those who were bound to him by private ties than about
the public interest, all this was perfectly natural, and not altogether
unpardonable. Those who entrust a petulant, hot-blooded, ill-informed lad with
power, are more to blame than he for the mischief which he may do with it. How
could it be expected of a lively page, raised by a wild freak of fortune to the
first influence in the empire, that he should have bestowed any serious thought
on the principles which ought to guide judicial decisions? Bacon was the ablest
public man then living in Europe. He was near sixty years old. He had thought
much, and to good purpose, on the general principles of law. He had for many
years borne a part daily in the administration of justice. It was impossible
that a man with a tithe of his sagacity and experience should not have known
that a judge who suffers friends or patrons to dictate his decrees violates the
plainest rules of duty. In fact, as we have seen, he knew this well: he
expressed it admirably. Neither on this occasion nor on any other could his bad
actions be attributed to any defect of the head. They sprang from quite a
different cause.
A man who stooped to render such services to others was not likely to be
scrupulous as to the means by which he enriched himself. He and his dependants
accepted large presents from persons who were engaged in Chancery suits. The
amount of the plunder which he collected in this way it is impossible to
estimate. There can be no doubt that he received very much more than was proved
on his trial, though, it may be, less than was suspected by the public. His
enemies stated his illicit gains at a hundred thousand pounds. But this was
probably an exaggeration.
It was long before the day of reckoning arrived. During the interval between the
second and third Parliaments of James, the nation was absolutely governed by the
Crown. The prospects of the Lord Keeper were bright and serene. His great place
rendered the splendor of his talents even more conspicuous, and gave an
additional charm to the serenity of his temper, the courtesy of his manners, and
the eloquence of his conversation. The pillaged suitor might mutter. The austere
Puritan patriot might, in his retreat, grieve that one on whom God had bestowed
without measure all the abilities which qualify men to take the lead in great
reforms should be found among the adherents of the worst abuses. But the murmurs
of the suitor and the lamentations of the patriot had scarcely any avenue to the
ears of the powerful. The King, and the Minister who was the King's master,
smiled on their illustrious flatterer. The whole crowd of courtiers and nobles
sought his favor with emulous eagerness. Men of wit and learning hailed with
delight the elevation of one who had so signally shown that a man of profound
learning and of brilliant wit might understand, far better than any plodding
dunce, the art of thriving in the world.
Once, and but once, this course of prosperity was for a moment interrupted. It
would seem that even Bacon's brain was not strong enough to bear without some
discomposure the inebriating effect of so much good fortune. For some time after
his elevation, he showed himself a little wanting in that wariness and
self-command to which, more than even to his transcendent talents, his elevation
was to be ascribed. He was by no means a good hater. The temperature of his
revenge, like that of his gratitude, was scarcely ever more than lukewarm. But
there was one person whom he had long regarded with an animosity which, though
studiously suppressed, was perhaps the stronger for the suppression. The insults
and injuries which, when a young man struggling into note and professional
practice, he had received from Sir Edward Coke, were such as might move the most
placable nature to resentment. About the time at which Bacon received the Seals,
Coke had, on account of his contumacious resistance to the royal pleasure, been
deprived of his seat in the Court of King's Bench, and had ever since languished
in retirement. But Coke's opposition to the Court, we fear, was the effect not
of good principles, but of a bad temper. Perverse and testy as he was, he wanted
true fortitude and dignity of character. His obstinacy, unsupported by virtuous
motives, was not proof against disgrace. He solicited a reconciliation with the
favorite, and his solicitations were successful. Sir John Villiers, the brother
of Buckingham, was looking out for a rich wife. Coke had a large fortune and an
unmarried daughter. A bargain was struck. But Lady Coke, the lady whom twenty
years before Essex had wooed on behalf of Bacon, would not hear of the match. A
violent and scandalous family quarrel followed. The mother carried the girl away
by stealth. The father pursued them, and regained possession of his daughter by
force. The King was then in Scotland, and Buckingham had attended him thither.
Bacon was during their absence at the head of affairs in England. He felt
towards Coke as much malevolence as it was in his nature to feel towards
anybody. His wisdom had been laid to sleep by prosperity. In an evil hour he
determined to interfere in the disputes which agitated his enemy's household. He
declared for the wife, countenanced the Attorney-General in the filing an
information in the Star-Chamber against the husband, and wrote letters to the
King and the favorite against the proposed marriage. The strong language which
he used in those letters shows that, sagacious as he was, he did not quite know
his place, and that he was not fully acquainted with the extent either of
Buckingham's power, or of the change which the possession of that power had
produced in Buckingham's character. He soon had a lesson which he never forgot.
The favorite received the news of the Lord Keeper's interference with feelings
of the most violent resentment, and made the King even more angry than himself.
Bacon's eyes were at once opened to his error, and to all its possible
consequences. He had been elated, if not intoxicated, by greatness. The shock
sobered him in an instant. He was all himself again. He apologized submissively
for his interference. He directed the Attorney-General to stop the proceedings
against Coke. He sent to tell Lady Coke that he could do nothing for her. He
announced to both the families that he was desirous to promote the connection.
Having given these proofs of contrition, he ventured to present himself before
Buckingham. But the young upstart did not think that he had yet sufficiently
humbled an old man who had been his friend and his benefactor, who was the
highest civil functionary in the realm, and the most eminent man of letters of
the world. It is said that on two successive days Bacon repaired to Buckingham's
house, that on two successive days he was suffered to remain in an antechamber
among footboys, seated on an old wooden box, with the Great Seal of England at
his side; and that when at length he was admitted, he flung himself on the
floor, kissed the favorite's feet, and vowed never to rise till he was forgiven.
Sir Anthony Weldon, on whose authority this story rests, is likely enough to
have exaggerated the meanness of Bacon and the insolence of Buckingham. But it
is difficult to imagine that so circumstantial a narrative, written by a person
who avers that he was present on the occasion, can be wholly without foundation;
and, unhappily, there is little in the character either of the favorite or of
the Lord Keeper to make the narrative improbable. It is certain that a
reconciliation took place on terms humiliating to Bacon, who never more ventured
to cross any purpose of anybody who bore the name of Villiers. He put a strong
curb on those angry passions which had for the first time in his life mastered
his prudence. He went through the forms of a reconciliation with Coke, and did
his best, by seeking opportunities of paying little civilities, and by avoiding
all that could produce collision, to tame the untamable ferocity of his old
enemy.
In the main, however, Bacon's life, while he held the Great Seal, was, in
outward appearance, most enviable. In London he lived with great dignity at York
House, the venerable mansion of his father. Here it was that, in January 1620,
he celebrated his entrance into his sixtieth year amidst a splendid circle of
friends. He had then exchanged the appellation of Keeper for the higher title of
Chancellor. Ben Jonson was one of the party, and wrote on the occasion some of
the happiest of his rugged rhymes. All things, he tells us, seemed to smile
about the old house, "the fire, the wine, the men." The spectacle of the
accomplished host, after a life marked by no great disaster, entered on a green
old age, in the enjoyment of riches, power, high honors, undiminished mental
activity, and vast literary reputation, made a strong impression on the poet, if
we may judge from those well-known lines:
1 Since this Review was
written, Mr. Jardine has published a very learned and ingenious Reading on the
use of torture in England. It has not, however, been thought necessary to make
any change in the observations on Peacham's case.
It is impossible to discuss within the limits of a note, the extensive question
raised by Mr. Jardine. It is sufficient here to say that every argument by which
he attempts to show that the use of the rack was anciently a lawful exertion of
royal prerogative may be urged with equal force, nay, with far greater force, to
prove the lawfulness of benevolences, of ship-money, of Mompesson's patent, of
Eliot's imprisonment, of every abuse, without exception, which is condemned by
the Petition of Right and the Declaration of Right.
2 De Augmentis, Lib. v. Cap. I.
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