Treason! (Third Essay)
Bill Long 12/16/04
The Next Steps
After the meeting between Bacon and Coke described by Bacon in his letter of January 31, 1615 to King James, the King's case was made. Bacon left the precedents and all the papers relevant to the case in Coke's possession. An interesing human touch comes out in Bacon's January 31, 1615 letter. Bacon said he delivered the precedents to Coke and Coke began to examine them on the spot. Coke would say, "this you mean falleth within your first, or your second, division." There is nothing hugely revelatory here, except that it shows the workings of a good legal mind.
We saw in the previous essay that Bacon divided the potential violations of the 1351 Treason statute into four "prongs" (as lawyers today say it). Lawyers then must "fit" the cases which interpret a statute into one of the four categories that have been so identified. Thus, Coke was willing to accept Bacon's characterization of the precedents and began the classificatory process himself. Of course the way this might turn around and bite the King is that if a precedent damning to Peacham was most appropriately associated with the second of Bacon's categories, for example, and Peacham was indicted under the fourth "prong." Then Coke could appropriately argue that the precedent didn't apply to Peacham. Coke's brief words, "this you mean falleth within your first, or your second, division," are not just revelatory of a good legal mind at work; they show that he is already constructing his argument in his mind.
But the conversation ended, and Bacon said near the conclusion of his long letter to the King, "In the end I expressly demanded his opinion, as that whereto both he and I were enjoined. But he desired me to leave the precedents with him, that he might advise upon them." Scene fades.
February 11, 1615
Bacon was getting antsy and so met with Coke a third time just before writing this letter to the King. He says that "yesterday" he took Coke aside and "told him all the rest were ready" (the other Justices?), and that "I was now to require his lordship's opinion, according to my commission." He said "he would tell it me within a very short time, though he were not that instant ready."
Febraury 14, 1615
Coke could hold back no longer. He gave his hand-written opinion over to Bacon [Was he speaking for the entire Court?] From the tone of Bacon's brief letter to the King we know exactly what happened. Coke had decided that Peacham was not guilty of treason. The letter gives no account of Coke's reasoning. Bowen says, without citation, that Bacon attributed it to the fact that the Chief Justice "could find in Peacham's case no act overt-- a different matter altogether from saying (as Coke actually had said) that Peacham had not committed treason at all (The Lion and the Throne, p. 354)."
In any case, Bacon's brief letter is a study of embarrassment and deference. He didn't want to characterize Coke's answers as "rescripts, much less oracles." Rather, they simply were "answers." Bacon thought it his charge to communicate this response immediately to the King. He indeed preferred to deliver the answer to the King personally, despite the fact that this "Muscovia weather be a little too hard for my constitution," but "my lord treasurer" because he had a lot of other business with the King, "was willing to save me." One gets the impression that Bacon was chagrined and embarrassed at the unexpected turn of events. He had tried to get all his "ducks in a row" by soliciting the compliant opinions of the other Justices and then handing over, in good faith, the King's theory of the case to Coke, but to no avail. But this would only be a temporary victory for Coke; by the end of the year Coke's goose would be cooked, and he would be removed by the King from King's Bench.
The (Confusing) End of the Case
Here is where I have a hard time coming to the end of the case. Drinker says that six months later Peacham was arraigned in his home county [but what is the relationship of the London and the Somersetshire proceedings?], and found guilty of treason [in what Court? was it reviewable? It appeared that the case was brought by the Bishop of Bath and Wells, who was the original plaintiff. How were such cases brought? On what legal basis did the King "intervene" and pursue the interrogatory and ex parte process? Had the local suit been "filed" while the London action was proceeding? What was the effect of the King's Bench decision on the local trial? Why didn't it serve as a sort of 'res judicata' in Peacham's favor?]
Bowen then says that Peacham was committed to the Taunton Jail where he died, probably from exposure and the fetid conditions of that prison. Thus, no public trial and execution of a Puritan preacher (which might not have been politically feasible) took place, but the preacher was effectively removed from the scene. No doubt Bowen has the ultimate facts right, but she seems to have glided over and even mixed up some of the legal proceedings. Let's turn to those, in the remainder of this essay and the following (concluding) essay.
After February 14, 1615
The records we have in Howell's State Trials have the following. Bacon wrote two more letters to the King, dated February 28 and March 12, 1615. The first talks about the local case and Peacham's defense in that venue. He tells the King on February 28 that he plans to go to the Tower to ask Peacham about his defense and how he will answer additional charges that have come to light.
But then he tells the King that rumors are abroad that "the judges of the King's Bench do doubt of the case, that it should not be treason" and that another story was needed to counteract this "bruit." Hence he urges
"it be given out constantly, and yet as it were a secret....that the doubt was only upon the publication, in that it was never published, for that (if your majesty marketh it) taketh away, or least qualifies the danger of the example."
What is unclear to me, as I close this essay, is whether Coke had, by himself or with the concurrence of the rest of the Justices, concluded that there was no treason at all or that the material may have been treasonable except for lack of publication. I suppose that this "lack of publication" would have been the "act overt" that Bowen refers to, but it would have been helpful had she talked about the rumors, the counterrumors and the sources she had for Coke's actual opinion.
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