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 so 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. (a)

information and light be taken from Mr. Poulet * and his servant, I hold it, as things are, necessary. God preserve your majesty. Your Majesty's most humble and devoted subject and servant, FR. BACON.

March 12, 1614.

(a) Sir Matthew Hale would never suffer his opinion in any case to be known till he was obliged to declare it judicially; and he concealed his opinion in great cases so carefully, that the rest of the judges in the same court could never perceive it: his reason was, because every judge ought to give sentence according to his own persuasion and conscience, and not to be swayed by any respect or deference to another man's opinion; and by his means it hath happened sometimes, that when all the barons of the Exchequer had delivered their opinions, and agreed in their reasons and arguments, yet he coming to speak last, and differing in judgment from them, hath expressed himself with so much weight and solidity, that the barons have immediately retracted their votes and concurred with him.

John Poulet, Esq. knight of the shire for the county of Somerset, in the parliament which met April 5, 1614. He was created Lord Poulet of Henton St. George, June 23, 1627.

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." (a)

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. (b)

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

(a) Vol. xii. p. 128.

(b) See note ZZ at the end.

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.”’(a)

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. (b)

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

(a) Advancement of Learning, vol. ii. p. 101.

(b) See note Z Z at the end.

passion more powerful than the love of truth; (a) nor shall we be censured, in future times, for refusing, in excessive obedience to this principle, to admit the evidence of the richest peer of 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 Thomas Brown, one of the first physicians and philosophers of his, or, indeed, of any time, who was devoting his life to the confutation of what he deemed vulgar errors! (b)

(a) Beccaria. “The result of torture, then, is a matter of calculation, and depends on the constitution, which differs in every individual, and is in proportion to his strength and sensibility; so that to discover truth by this method is a problem, which may be better solved by a mathematician than a judge, and may be thus stated. The force of the muscles, and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime."

(b) Amy Duny and Rose Callender were tried and condemned at Bury St. Edmunds, in Suffolk, by the Lord Chief Baron Hale; an account of the trial was printed in his lordship's lifetime. They were tried upon thirteen several indictments: Amy Duny was charged with bewitching Mr. Pacey's children, and causing them to have fits, and when Sir Thomas Brown, the famous physician of his time, who was in court, was desired by my Lord Chief Baron to give his judgment in the case, he declared, "that he was clearly of opinion that the fits were natural, but heightened by the devil, co-operating with the malice of the witches at whose instance he did the villanies;" and he added, "that in Denmark there had been lately a great discovery of witches who used the very same way of afflicting persons, by conveying pins into them." This made that great and good man doubtful, but he was in such fears that he would not so much as sum up the evidence, but left it to the jury with prayers, "that the great God of Heaven would direct their hearts in that weighty matter." The jury, having Sir Thomas Brown's declaration about Denmark for their encouragement, in half an hour brought them in guilty upon all the thirteen indictments. After this my Lord Chief Baron gave the law its course, and they were condemned, and died declaring their innocence.

nor will the judges of England hereafter be considered culpable for having at one session condemned and left for execution six young men and women under the age of twenty, for uttering forged one-pound notes; (a) or for having, so late as the year 1820, publicly sold for large sums the places of the officers of their courts.

To persecute the lover of truth 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. "These things must continue as they have been: so too will that also continue, whereupon learning hath ever relied, and which faileth not: justificata est sapientia a filiis suis." (b)

Bacon, unmoved by the prejudice, by which during his life he was resisted, or the scurrilous libels by which he was assailed, went right onward in the advancement of knowledge, the only effectual mode of decomposing error Where he saw that truth was likely to be received, he presented her in all her divine loveliness. When he could not directly attack error, when the light was too strong for weak eyes, he never omitted an opportunity to expose it. Truth is often silent as fearing her judge, never as suspecting her cause.

In his letter to the King, stating that Peacham had been put to the torture, he says, "though we are driven to make our way through questions, which I wish were otherwise, (c) yet I hope the end will be good:" and, unable at

(a) See the public newspaper of December 4, 1820. (b) See Advancement of Learning, vol. ii. p. 88.

says,

(c) See note (6), ante, p. 169. In his apology respecting Essex, he "For her majesty being mightily incensed with that book, which was dedicated to my Lord of Essex, being a story of the first year of King Henry IV. thinking it a seditious prelude to put into the people's