Treason! (Second Essay)
Bill Long 12/16/04
Cornering the King's Bench Justices
Over the next seven weeks (from January 21, 1615- March 12, 1615), Francis Bacon, the King's Attorney General, approached Chief Justice Coke several times and the other three Justices (Doddridge, Crook and Houghton) at least once to sound them out on Peacham's "crime." This "seriatim" method was a highly irregular procedure, but one that the King felt was appropriate because the Justices served him at his pleasure. The three other Justices seemed compliant enough. But Coke was not. We have records of Francis Bacon's letters to the King during this period as he was trying to "sound out" Coke. This essay will provide excerpts from some of these letters.
January 21, 1615
Just two days after the abortive examination, Bacon wrote: "It grieveth me exceedingly that your majesty should be so much troubled with this matter of Peacham, whose raging devil seeth to be turned into a dumb devil." He goes on, in the brief letter, to encourage the King, by quoting the Apostle Paul's words from the Acts 27 shipwreck, to keep at it.
January 27, 1615
One week later Bacon wrote to apprise the King on how the interviews with Coke and the other Justices were going. They decided to approach the other Justices first before sounding Coke out, "for doubt of infusion" (i.e., that Coke might otherwise influence their opinions). At first Coke's reponse was "that such particular and, as he called it auricular taking of opinions was not according to the custom of this realm" [can't you just imagine the elevated and highly literate Chief Justice using the word 'auricular' to describe this attempt of the King to strongarm the Justices?]. At least two of the three other Justices were compliant; one wanted to confer with his colleagues. Bacon told the King that the legal justification for this ex parte and seriatim consultation was that
"every judge was bound expressly by his oath, to give your majesty counsel when he called; and whether he should do it jointly or severally, that rested in your majesty's good pleasure as you would require it."
The noose around Coke appeared to be tightening.
January 31 , 1615
Things were moving quickly. Bacon told the King that since the last missive he had met not once but twice with Coke. Bacon delivered Peacham's purportedly incriminating papers to Coke, as well as his answers to the interrogatories, for examination. When asked about his opinion in the case, Coke gave his rather bold but clear procedural answer to Bacon:
"judges were not to give opinions by fractions, but entirely according to the vote whereupon they should settle upon conference: and that this auricular taking of opinions, single and apart, was new and dangerous."
Then, in an ominous-sounding note, Bacon added that Coke said some words "more vehement than I repeat." Bacon pressed upon Coke his theory of the Justice's oath, laid about above, that failure to give the King counsel in the manner he desired, "touched upon a violation of their oath, which was to counsel the king, without distinction whether it were jointly or severally."
The King's Case, as of January 31, 1615
As an indication of his desire to lay all his cards on the table, Bacon put before Coke his "theory of the case," as lawyers call it. He said he would proceed upon the ground of the "ancient statute of Edward III," known also as the "Treason Act of 1351," (25 Ed III, stat. 5), which was the most broadly-worded of all the treason statutes. The relevant section of the statute provides that if a man "doth compass or imagine the death of our lord the King" (or others in the royal family or government), and if this is done thorugh open rebellion, giving the King's enemies "aid and comfort in the realm, or elsewhere" he has violated the Act. Bacon goes on to quote some language of the Act to the effect that if someone composes or write a "detestable and poisonous libel" in which threats were articulated, he would also have violated that statute.
Bacon then listed the four ways "whereby the death of the king is compassed and imagined." The First is by "some particular fact or plot." The Second is by "disabling his title," through affirming that the King was a usurper or bastard child or the like. The Third is by subjecting the King's title to the Pope [after all, England was Catholic until the days of Henry VIII in the 1530s]; and The Fourth is "by disabling his regiment, and making him appear to be incapable or indign [an obsolete word meaning "undeserving"] to reign."
In this particular case, Bacon put Peacham's treason in the fourth category. He supplied "diverse precedents" to Coke on the issue and, in his letter to the King, says that he:
"concluded that your majesty's safety and life and authority was thus by law insconsed [an obsolete spelling usually rendered 'ensconced' and meaning 'fortified' or 'protected'--a 'sconce' was a redoubt or fortification] and quartered; and that it was in vain to fortify on three of the sides, and so leave you open on the fourth."
My third mini-essay will show how the case continued.
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