excommunicated and deprived by the pope, it was lawtul for any person to kill him.
The prosecution against Peacham was for several treasonable passages in a sermon, found in his study, but never preached, and never intended to be preached.
Doubts being entertained both of the fact with respect to the intention to preach, and of the law, supposing the intention to have existed, recourse was had to expedients from which, in these enlightened times, we recoil with horror.
To discover the fact, this old clergyman was put upon the rack, and was examined "before torture, in torture, between torture, and after torture," but no confession was extorted, which was instantly communicated by Bacon to the king.
To be certain of the law, the king resolved to obtain the opinions of the judges before the prosecution was commenced. For this purpose, the attorney-general was employed to confer with Sir Edward Coke, Mr. Sergeant Montague to speak with Justice Crooke, Mr. Sergeant Crew with Justice Houghton, and Mr. Solicitor with Justice Dodderidge, who were instructed by Bacon that they should presently speak with the three judges, before he could see Coke; and that they should not in any case make any doubt to the judges, as if they mistrusted they would not deliver any opinion apart, but speak resolutely to them, and only make their coming to be, to know what time they would appoint to be attended with the papers. The three judges very readily gave their opinions; but with Sir Edward Coke the task was not easy: for his high and independent spirit refused to submit to these private conferences, contrary, as he said, to the custom of the realm, which requires the judges not to give opinion by fractions, but entirely and upon conference; and that this auricular taking of opinions, single and apart, was new and dangerous.
The answer to this resistance, Bacon thus relates in a letter to the king: "I replied in civil and plain terms, that I wished his lordship, in my love to him, to think better of it; for that this, that his lordship was pleased to put into great words, seemed to me and my fellows, when we spake of it amongst ourselves, a reasonable and familiar matter, for a king to consult with his judges, either assembled or selected, or one by one. I added, that judges sometimes might make a suit to be spared for their opinion till they had spoken with their brethren; but if the king upon his own princely judgment, for reason of estate, should think it fit to have it otherwise, and should so demand it, there was no declining; nay, that it touched upon a violation of their oath, which was to counsel the king without distinction, whether it were jointly or severally.
Thereupon I put him the case of the privy council, as if your majesty should be pleased to command any of them to deliver their opinion apart and in private; whether it were a good answer to deny it, otherwise than if it were propounded at the table. To this he said, that the cases were not alike, because this concerned life. To which I replied, that questions of estate might concern thousands of lives; and many things more precious than the life of a particular; as war and peace, and the like."
By this reasoning Coke's scruples were, after a struggle, removed, and he concurred with his brethren in obedience to the commands of the king.
From the progress which knowledge has made, during the last two centuries, in the science of justice and its administration, mitigating severity, abolishing injurious restraints upon commerce, and upon civil and religious liberty, and preserving the judicial mind free, almost, from the possibility of influence, we may, without caution, feel disposed to censure the profession of the law at that day for practices so different from our own. Passing out of darkness into light, we may for a moment be dazzled, and forget the ignorance from which we have emerged; an evil attendant upon the progress of learning, which did not escape the observation of Bacon, by whom we are admonished, that "if knowledge, as it advances, is taken without its true corrective, it ever hath some nature of venom or malignity, and some effects of that venom, which is ventosity or swelling. This corrective spice, the mixture whereof maketh knowledge so sovereign, is charity; of which the apostle saith, If I spake with the tongues of men and angels, and had not charity, it were but as a tinkling cymbal."
For having thus acted in obedience to the king's commands, by a compliance with error sanctioned by the practice of the profession, Bacon has, without due consideration, been censured by a most upright, intelligent judge of modern times, who has thus indirectly accused the bar as venal, and the bench as perjured.
To this excellent man posterity has been more just; we do not brand Judge Foster with the imputation of cruelty, for having passed the barbarous and disgraceful sentence upon persons convicted of high treason, which was not abolished till the reign of George the Fourth; nor do we censure the judges in and before the time of Elizabeth for not having resisted the infliction of torture, sanctioned by the law, which was founded upon the erroneous principle that men will speak truth, when under the influence of a passion more powerful than the love of truth; nor shall we be censured, in future times, for refusing, in excessive obedience to this principle, to admit the evidence of the richest peer ot the realm, if he have the interest of sixpence in the cause; nor has Sir Matthew Hale been visited with the sin of having condemned and suffered to be executed, a mother and her daughter of eleven years of age for witchcraft, under the quaint advice of Sir
