Critical and Historical Essays - Volume 2 by Thomas Babington Macaulay (classic fiction txt) 📖

the King, complaining that Peacham had a dumb devil. At length the trial came on. A conviction was obtained; but the charges were so obviously futile, that the Government could not, for very shame, carry the sentence into execution; and Peacham, was suffered to languish away the short remainder of his life in a prison.

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 honourable 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. [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.]

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"; [De Augmentis, Lib. v. Cap. I.] 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 honour. 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 pandar, 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 favourite 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