5io
THE GREEN BAG
of it." The result was that Mr. Whitlocke, who seems not to have been of the stuff of martyrs, was intimidated into a confession of his error and presumption, and promised thereafter always to employ himself in de fence of the King's prerogative. When Bacon's alleged reforms and improvements in legal procedure are lauded, it is impor tant to remember that as much as in him lay he endeavored to poison the pure wells of law at their source, by destroying the independence of its Ministers; and to sweep away their right to advise their clients ac cording to their conscientious view of the law, and to chain them to the car of authority and prerogative. Nor is this an utterly obsolete and unusual peril even -nowadays. The danger to the freedom of the Bar is now rather from an excited state of public opin ion and a reckless press, which in these times seek to intimidate the lawyer from pro nouncing hasty statutes unconstitutional, or the acts of popular officers and magis trates unlawful. It is still, however, the spirit of Bacon, slavish as well as tyrannical, which seeks to deprive by more subtle means the Bar of its well-earned and dearlyprized privileges, although instead of prerog ative we have Popular Will and Uncon stitutional Statute writ large. That men, not lawyers, should adopt this view and not see that freedom of the State as well as lawful government must perish if the free dom of the Bar be taken away, is not so sur prising, but when a great lawyer and jurist conspires so to ruin and degrade the profes sion he should cherish, it cannot be without our special wonder. The second of these episodes as they may be called is what is known as Peacham's case, which occurred in 1614, when Bacon was Attorney General. This case is remark able not only for the remarkable extent to which Bacon succeeded in developing the law of treason, but for the extraordinary and unlawful means used by him in obtain ing that success. Peacham was a clergy man of the Church of England suspected of
disloyal views. Domiciliary searches of doubtful legality discovered in a desk or other private receptacle, the sketch of a sermon which was never delivered, and which there was no evidence he ever in tended to preach, but which it was claimed contained treasonable sentiments. Tor ture, certainly contrary to the usage of English law even at that day, failed to draw from the unfortunate priest anything more incriminating, so that the case stood alone on these expressions, contained in a written sketch in Peacham's handwriting found among his private papers under lock and key, and the intent to publish which was only a matter of inference. Bacon natur ally felt some doubt as to whether, if left to themselves, the Judges would be likely to permit a conviction of treason on such evi dence, which not only showed no overt act but no published or even spoken words, and only differed from a man's secret thoughts and meditations by having been secretly committed to paper. To prevent the possibility of a failure in his prosecu tion, therefore, Bacon resorted to the plan of endeavoring to compel the Judges to commit themselves in advance on the ques tion. The manner in which the Judges were interviewed, cajoled, and threatened is related in Bacon's intimate letters to the King dated Jan. i, Jan. 27, Jan. 31, and Feb. i, 1614. Lord Coke and some of the other Judges scrupled much at commit ting themselves in advance to a decision that Peacham's sketch amounted to high treason. Coke, to his honor be it said, ob jected that such "particular and auricular taking of opinions was not according to the custom of this realm." But according to Bacon's artful arrangement Mr. Sergeant Montague spoke with Justice Croke, Mr. Sergeant Crowe with Justice Houghton, and the Solicitor General with Justice Dodderidge, while Bacon himself expostu lated with Lord Coke, so that his device was ultimately crowned with success. Peacham was convicted of high treason, but died in
