Bacon's sympathies were on the side of James. As Bacon had pleaded for a larger statesmanship than Salisbury's, he now pleaded for statesmanship itself as against the technical legality of Coke. His fundamental strength lay in recognition of the truth that political wisdom is greater than legality. His fundamental weakness lay in his failure to discover that political wisdom was not to be expected from James, and that consequently it would be necessary to reconstruct the whole framework of the state.
The claim of the judges to be the supreme mediators in political disputes had ripened partly throngh the weakness of the king, and partly through the wide learning and masterful temper of Coke, who had reduced the other judges to be scarcely more than satellites of himself. In 1613 the struggle between Bacon and Coke was opened by the removal of the latter, at Bacon's advice, from the chief justiceship of the common pleas to that of the king's bench, where it was thought that he would be less able to do mischief.
On the question of the issue of a demand for a benevolence. Bacon and Coke did not come into collision. Bacon strongly advised that it should be as voluntary in reality as it was in name, but as he was not a privy councillor he had nothing to do with any pressure that was put on those who were backward. In the prosecution of St. John in 1615 for the abusive terms in which he had urged resistance to the benvolence, the language used by Bacon may have been justly aimed at so intemperate an opponent of the government as St. John was, but it shows an entire incapacity to understand the grounds on which honourable men were at this time tending to resist the court.
The actual collision between Bacon and Coke was brought about by the proceedings taken against Edmond Peacham, a clergyman of Somerset, amongst whose papers had been found a paper reprobating the king's proceedings, and apparently intended to be read from the pulpit in the form of a sermon. The council, knowing that grave dissatisfaction existed, suspected that Peacham was only the mouthpiece of others, and ordered him to be tortured, in the hope of obtaining disclosures from him. Of his torture Bacon was an official witness, but he had nothing to do with the order for it, though there is no reason to suppose that he would have objected. As, however, the torture produced no hint of a conspiracy, the government resolved to proceed against Peacham himself on a charge of treason. It had, in fact, resolved, even before the torture, to consult the judges of the king's bench as to whether Peacham's offence was treasonable or not.
To consult the judges was at that time the usual practice. In this case, however, there was a special difficulty. Coke's masterful temper, combined with his legal attainments, was apt to reduce the other judges to dependence on himself, and James therefore ordered that the four judges should be consulted individualy. To this unusual proceeding Coke not unnaturally objected. 'Such particular and auricular taking of opinions,' he said, 'is not according to the custom of the realm.' The three puisne judges gave a compliant answer. Bacon, as attorney-general, was intrusted with the examination of Coke, and, as might have been expected, did not receive a reply which was satisfactory to himself. Whatever might be the true decision according to the legal doctrines then prevalent, it is evident that Coke and Bacon approached the constitutional question from opposite points of view. Coke wished the bench to be so organised as to be appealed to as an independent authority between the crown and the subject. Bacon, with a wider political instinct, wished to confine it to purely legal questions, leaving political matters to political men. He forgot to ask whether James, standing as he did apart from the nation, could justly claim the respect due to the supremacy of a political government. What was still worse is that he advised that a false rumour should be given out as to the opinion of the judges, lest others should be encouraged to publish attacks on the crown.
This reliance on management at the expense of truthfulness was Bacon's worst fault. It cannot, however, be said of him that if he defended James overmuch, he did not try his best to make James's policy other than it was. In a paper written at the end of September or the beginning of October 1615, at the time when the council recommended the calling of another parliament, Bacon gave his opinion strongly, not only in the same direction, but in favour of the course, which he had always advised, of abandoning all attempts at bargaining. 'Let there be an utter silence,' he wrote, 'as of the king's part, of money or supply, or of the king's debts or wants; they are things too well known. And let not the king doubt but some honest man will, after they have sat awhile, fall upon them, though it proceed not from the king. Nay, I will presume further to say (as putting a case speculative, which in act and event I hold an impossibility), if subsidies should never be given nor spoken of in the next parliament, yet the meeting and parting of the king and his parliament with due conservation of the majesty and authority of the king, which heretofore hath suffered, and will
