Томас Бабингтон Маколей
Critical and Historical Essays. Volume 2
Bacon appeared against a man who was indeed guilty of a great offence, but who had been his benefactor and friend. He did more than this. Nay, he did more than a person who had never seen Essex would have been justified in doing. He employed all the art of an advocate in order to make the prisoner’s conduct appear more inexcusable and more dangerous to the State than it really had been. All that professional duty could, in any case, have required of him would have been to conduct the cause so as to ensure a conviction. But from the nature of the circumstances there could not be the smallest doubt that the Earl would be found guilty. The character of the crime was unequivocal. It had been committed recently, in broad daylight, in the streets of the capital, in the presence of thousands. If ever there was an occasion on which an advocate had no temptation to resort to extraneous topics, for the purpose of blinding the judgment and inflaming the passions of a tribunal, this was that occasion.
Why then resort to arguments which, while they could add nothing to the strength of the case, considered in a legal point of view, tended to aggravate the moral guilt of the fatal enterprise, and to excite fear and resentment in that quarter from which alone the Earl could now expect mercy? Why remind the audience of the arts of the ancient tyrants? Why deny what everybody knew to be the truth, that: a powerful faction at Court had long sought to effect the ruin of the prisoner? Why above all, institute a parallel between the unhappy culprit and the most wicked and most successful rebel of the age? Was it absolutely impossible to do all that professional duty required without reminding a jealous sovereign of the League, of the barricades, and of all the humiliations which a too powerful subject had heaped on Henry the Third?
But if we admit the plea which Mr. Montagu urges in defence of what Bacon did as an advocate, what shall we say of the Declaration of the Treasons of Robert, Earl of Essex? Here at least there was no pretence of professional obligation. Even those who may think it the duty of a lawyer to hang, draw, and quarter his benefactors, for a proper consideration, will hardly say that it is his duty to write abusive pamphlets against them, after they are in their graves. Bacon excused himself by saying that he was not answerable for the matter of the book, and that he furnished only the language. But why did he endow such purposes with words? Could no hack writer, without virtue or shame, be found to exaggerate the errors, already so dearly expiated, of a gentle and noble spirit? Every age produces those links between the man and the baboon. Every age is fertile of Oldmixons, of Kenricks, and of Antony Pasquins. But was it for Bacon so to prostitute his intellect? Could he not feel that, while he rounded and pointed some period dictated by the envy of Cecil, or gave a plausible form to some slander invented by the dastardly malignity of Cobham; he was not sinning merely against his friend’s honour and his own? Could he not feel that letters, eloquence, philosophy, were all degraded in his degradation?
The real explanation of all this is perfectly obvious; and nothing but a partiality amounting to a ruling passion could cause anybody to miss it. The moral qualities of Bacon were not of a high order. We do not say that he was a bad man. He was not inhuman or tyrannical. He bore with meekness his high civil honours, and the far higher honours gained by his intellect. He was very seldom, if ever, provoked into treating any person with malignity and insolence. No man more readily held up the left cheek to those who had smitten the right. No man was more expert at the soft answer which turneth away wrath. He was never charged, by any accuser entitled to the smallest credit, with licentious habits. His even temper, his flowing courtesy, the general respectability of his demeanour, made a favourable impression on those who saw him in situations which do not severely try the principles. His faults were—we write it with pain—coldness of heart, and meanness of spirit. He seems to have been incapable of feeling strong affection, of facing great dangers, of making great sacrifices. His desires were set on things below wealth, precedence, titles, patronage, the mace, the seals, the coronet, large houses, fair gardens, rich manors, massy services of plate, gay hangings, curious cabinets, had as great attractions for him as for any of the courtiers who dropped on their knees in the dirt when Elizabeth passed by, and then hastened home to write to the King of Scots that her Grace seemed to be breaking fast. For these objects he had stooped to everything and endured everything. For these he had sued in the humblest manner, and, when unjustly and ungraciously repulsed, had thanked those who had repulsed him, and had begun to sue again. For these objects, as soon as he found that the smallest show of independence in Parliament was offensive to the Queen, he had abased himself to the dust before her, and implored forgiveness in terms better suited to a convicted thief than to a knight of the shire. For these he joined, and for these he forsook, Lord Essex. He continued to plead his patron’s cause with the Queen as long as he thought that by pleading that cause he might serve himself. Nay, he went further; for his feelings, though not warm, were kind; he pleaded that cause as long as he thought that he could plead it without injury to himself. But when it became evident that Essex was going headlong to his ruin, Bacon began to tremble for his own fortunes. What he had to fear would not indeed have been very alarming to a man of lofty character. It was not death. It was not imprisonment. It was the loss of Court favour. It was the being left behind by others in the career of ambition. It was the having leisure to finish the Instauratio Magna. The Queen looked coldly on him. The courtiers began to consider him as a marked man. He determined to change his line of conduct, and to proceed in a new course with so much vigour as to make up for lost time. When once he had determined to act against his friend, knowing himself to be suspected, he acted with more zeal than would have been necessary or justifiable if he had been employed against a stranger. He exerted his professional talents to shed the Earl’s blood, and his literary talents to blacken the Earl’s memory.
It is certain that his conduct excited at the time great and general disapprobation. While Elizabeth lived, indeed, this disapprobation, though deeply felt, was not loudly expressed. But a great change was at hand. The health of the Queen had long been decaying; and the operation of age and disease was now assisted by acute mental suffering. The pitiable melancholy of her last days has generally been ascribed to her fond regret for Essex. But we are disposed to attribute her dejection partly to physical causes, and partly to the conduct of her courtiers and ministers. They did all in their power to conceal from her the intrigues which they were carrying on at the Court of Scotland. But her keen sagacity was not to be so deceived. She did not know the whole. But she knew that she was surrounded by men who were impatient for that new world which was to begin at her death, who had never been attached to her by affection, and who were now but very slightly attached to her by interest. Prostration and flattery could not conceal from her the cruel truth, that those whom she had trusted, and promoted had never loved her, and were fast ceasing to fear her. Unable to avenge herself, and too proud to complain, she suffered sorrow and resentment to prey on her heart till, after a long career of power, prosperity, and glory, she died sick and weary of the world.
James mounted the throne: and Bacon employed all his address to obtain for himself a share of the favour of his new master. This was no difficult task. The faults of James, both as a man and as a prince, were numerous; but insensibility to the claims of genius and learning was not among them. He was indeed made up of two men, a witty, well-read scholar, who wrote, disputed, and harangued, and a nervous, drivelling idiot, who acted. If he had been a Canon of Christ Church or a Prebendary of Westminster, it is not improbable that he would have left a highly respectable name to posterity; that he would have distinguished himself among the translators of the Bible, and among the Divines who attended the Synod of Dort; and that he would have been regarded by the literary world as no contemptible rival of Vossius and Casaubon. But fortune placed him in a situation in which his weakness covered him with disgrace, and in which his accomplishments brought him no honour. In a college, much eccentricity and childishness would have been readily pardoned in so learned a man. But all that learning could do for him on the throne was to make people think him a pedant as well as a fool.
Bacon was favourably received at Court; and soon found that his chance of promotion was not diminished by the death of the Queen. He was solicitous to be knighted, for two reasons which are somewhat amusing. The King had already dubbed half London, and Bacon found himself the only untitled person in his mess at Gray’s Inn. This was not very agreeable to him. He had also, to quote his own words, “found an Alderman’s daughter, a handsome maiden, to his liking.” On both these grounds, he begged his cousin Robert Cecil, “if it might please his good Lordship,” to use his interest in his behalf. The application was successful. Bacon was one of three hundred gentlemen who, on the coronation-day, received the honour, if it is to be so called, of knighthood. The handsome maiden, a daughter of Alderman Barnham, soon after consented to become Sir Francis’s lady.
The death of Elizabeth, though on the whole it improved Bacon’s prospects, was in one respect an unfortunate event for him. The new King had always felt kindly towards Lord Essex, and, as soon as he came to the throne, began to show favour to the House of Devereux, and to those who had stood by that house in its adversity. Everybody was now at liberty to speak out respecting those lamentable events in which Bacon had borne so large a share. Elizabeth was scarcely cold when the public feeling began to manifest itself by marks of respect towards Lord Southampton. That accomplished nobleman, who will be remembered to the latest ages as the generous and discerning patron of Shakspeare, was held in honour by his contemporaries chiefly on account of the devoted affection which he had borne to Essex. He had been tried and convicted together with his friend; but the Queen had spared his life, and, at the time of her death, he was still a prisoner. A crowd of visitors hastened to the Tower to congratulate him on his approaching deliverance. With that crowd Bacon could not venture to mingle. The multitude loudly condemned him; and his conscience told him that the multitude had but too much reason. He excused himself to Southampton by letter, in terms which, if he had, as Mr. Montagu conceives, done only what as a subject and an advocate he was bound to do, must be considered as shamefully servile. He owns his fear that his attendance would give offence, and that his professions of regard would obtain no credit. “Yet,” says he, “it is as true as a thing that God knoweth, that this great change hath wrought in me no other change towards your Lordship than this, that I may safely be that to you now which I was truly before.”
How Southampton received these apologies we are not informed. But it is certain that the general opinion was pronounced against Bacon in a manner not to be misunderstood. Soon after his marriage he put forth a defence of his conduct, in the form of a Letter to the Earl of Devon. This tract seems to us to prove only the exceeding badness of a cause for which such talents could do so little.
It is not probable that Bacon’s Defence had much effect on his contemporaries. But the unfavourable impression which his conduct had made appears to have been gradually effaced. Indeed it must be some very peculiar cause that can make a man like him long unpopular. His talents secured him from contempt, his temper and his manners from hatred. There is scarcely any story so black that it may not be got over by a man of great abilities, whose abilities are united with caution, good humour, patience, and affability, who pays daily sacrifice to Nemesis, who is a delightful companion, a serviceable though not an ardent friend, and a dangerous yet a placable enemy. Waller in the next generation was an eminent instance of this. Indeed Waller had much more than may at first sight appear in common with Bacon. To the higher intellectual qualities of the great English philosopher, to the genius which has made an immortal epoch in the history of science, Waller had indeed no pretensions. But the mind of Waller, as far as it extended, coincided with that of Bacon, and might, so to, speak, have been cut out of that of Bacon. In the qualities which make a man an object of interest and veneration to posterity, they cannot be compared together. But in the qualities by which chiefly a man is known to his contemporaries there was a striking similarity between them. Considered as men of the world, as courtiers, as politicians, as associates, as allies, as enemies, they had nearly the same merits, and the same defects. They were not malignant. They were not tyrannical. But they wanted warmth of affection and elevation of sentiment. There were many things which they loved better than virtue, and which they feared more than guilt. Yet, even after they had stooped to acts of which it is impossible to read the account in the most partial narratives without strong disapprobation and contempt, the public still continued to regard them with a feeling not easily to be distinguished from esteem. The hyperbole of Juliet seemed to be verified with respect to them. “Upon their brows shame was ashamed to sit.” Everybody seemed as desirous to throw a veil over their misconduct as if it had been his own. Clarendon, who felt, and who had reason to feel, strong personal dislike towards Waller, speaks of him thus: “There needs no more to be said to extol the excellence and power of his wit and pleasantness of his conversation, than that it was of magnitude enough to cover a world of very great faults, that is, so to cover them that they were not taken notice of to his reproach, viz., a narrowness in his nature to the lowest degree, an abjectness and want of courage to support him in any virtuous undertaking, an insinuation and servile flattery to the height the vainest and most imperious nature could be contented with. . . . It had power to reconcile him to those whom he had most offended and provoked, and continued to his age with that rare felicity, that his company was acceptable where his spirit was odious, and he was at least pitied where he was most detested.” Much of this, with some softening, might, we fear, be applied to Bacon. The influence of Waller’s talents, manners, and accomplishments, died with him; and the world has pronounced an unbiassed sentence on his character. A few flowing lines are not bribe sufficient to pervert the judgment of posterity. But the influence of Bacon is felt and will long be felt over the whole civilised world. Leniently as he was treated by his contemporaries, posterity has treated him more leniently still. Turn where we may, the trophies of that mighty intellect are full in few. We are judging Manlius in sight of the Capitol.
Under the reign of James, Bacon grew rapidly in fortune and favour. In 1604 he was appointed King’s Counsel, with a fee of forty pounds a year; and a pension of sixty pounds a year was settled upon him. In 1607 he became Solicitor-General, in 1612 Attorney-General. He continued to distinguish himself in Parliament, particularly by his exertions in favour of one excellent measure on which the King’s heart was set, the union of England and Scotland. It was not difficult for such an intellect to discover many irresistible arguments in favour of such a scheme. He conducted the great case of the Post Nati in the Exchequer Chamber; and the decision of the judges, a decision the legality of which may be questioned, but the beneficial effect of which must be acknowledged, was in a great measure attributed to his dexterous management. While actively engaged in the House of Commons and in the courts of law, he still found leisure for letters and philosophy. The noble treatise on the Advancement of Learning, which at a later period was expanded into the De Augmentis, appeared in 1605. The Wisdom of the Ancients, a work which, if it had proceeded from any other writer, would have been considered as a masterpiece of wit and learning, but which adds little to the fame of Bacon, was printed in 1609. In the meantime the Novum Organum was slowly proceeding. Several distinguished men of learning had been permitted to see sketches or detached portions of that extraordinary book; and, though they were not generally disposed to admit the soundness of the author’s views, they spoke with the greatest admiration of his genius. Sir Thomas Bodley, the founder of one of the most magnificent of English libraries, was among those stubborn Conservatives who considered the hopes with which Bacon looked forward, to the future destinies of the human race as utterly chimerical, and who regarded with distrust and aversion the innovating spirit of the new schismatics in philosophy. Yet even Bodley, after perusing the Cogitata et Visa, one of the most precious of those scattered leaves out of which the great oracular volume was afterwards made up, acknowledged that in “those very points, and in all proposals and plots in that book, Bacon showed himself a master-workman”; and that “it could not be gainsaid but all the treatise over did abound with choice conceits of the present state of learning, and with worthy contemplations of the means to procure it.” In 1612 a new edition of the Essays appeared, with additions surpassing the original collection both in bulk and quality. Nor did these pursuits distract Bacon’s attention from a work the most arduous, the most glorious, and the most useful that even his mighty powers could have achieved, “the reducing and recompiling,” to use his own phrase, “of the laws of England.”
Unhappily he was at that very time employed in perverting those laws to the vilest purposes of tyranny. When Oliver St. John was brought before the Star Chamber for maintaining that the King had no right to levy Benevolences, and was for his manly and constitutional conduct sentenced to imprisonment during the royal pleasure and to a fine of five thousand pounds, Bacon appeared as counsel for the prosecution. About the same time he was deeply engaged in a still more disgraceful transaction. An aged clergyman, of the name of Peacham, was accused of treason on account of some passages of a sermon which was found in his study. The sermon, whether written by him or not, had never been preached. It did not appear that he had any intention of preaching it. The most servile lawyers of those servile times were forced to admit that there were great difficulties both as to the facts and as to the law. Bacon was employed to remove those difficulties. He was employed to settle the question of law by tampering with the judges, and the question of fact by torturing the prisoner.
Three judges of the Court of King’s Bench were tractable. But Coke was made of different stuff. Pedant, bigot, and brute as he was, he had qualities which bore a strong, though a very disagreeable resemblance to some of the highest virtues which a public man can possess. He was an exception to a maxim which we believe to be generally true, that those who trample on the helpless are disposed to cringe to the powerful. He behaved with gross rudeness to his juniors at the bar, and with execrable cruelty to prisoners on trial for their lives. But he stood up manfully against the King and the King’s favourites. No man of that age appeared to so little advantage when he was opposed to an inferior, and was in the wrong. But, on the other hand, it is but fair to admit that no man of that age made so creditable a figure when he was opposed to a superior, and happened to be in the right. On such occasions, his half-suppressed insolence and his impracticable obstinacy had a respectable and interesting appearance, when compared with the abject servility of the bar and of the bench. On the present occasion he was stubborn and surly. He declared that it was a new and highly improper practice in the judges to confer with a law-officer of the Crown about capital cases which they were afterwards to try; and for some time he resolutely kept aloof. But Bacon was equally artful and persevering. “I am not wholly out of hope,” said he in a letter to the King, “that my Lord Coke himself, when I have in some dark manner put him in doubt that he shall be left alone, will not be singular.” After some time Bacon’s dexterity was successful; and Coke, sullenly and reluctantly, followed the example of his brethren. But in order to convict Peacham it was necessary to find facts as well as law. Accordingly, this wretched old man was put to the rack, and, while undergoing the horrible infliction, was examined by Bacon, but in vain. No confession could be wrung out of him; and Bacon wrote to 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.
