Page images

the latter, Bacon may have naturally been influenced by a desire of promotion; but in the former he "relates himself to paper" as to a most secret friend. The disjointed form of these entries; the frankness with which he makes the most discreditable avowals about himself; the cool directness with which he sets down plans for humouring, or utilising, the leading men of the day-including his cousin the Lord Treasurer, and the King himself—make it absolutely certain that the book could never have been written with a view to publication, or in the hope of exhibiting himself in a favourable light to posterity. Here then we are safe with Bacon: here we have his true self described by one who has the amplest information and not the slightest temptation to excuse or gloss or misrepresent for what is the use of making misrepresentations to a sheet of paper? Every word, therefore, that Bacon sets down here we may accept as representing what he believed to be his motives and objects. He may have been mistaken-as men are sometimes mistaken about their own motives and objects-but, unless we find him making himself out to be much better than we have reason for thinking him to be, we must be very sceptical to disbelieve the evidence afforded by the Commentarius Solutus as to Francis Bacon's public and private objects.

The sum of these secret records, so far as politics are concerned, is that Bacon exhibits himself in them as a resolute and determined courtier; without the slightest apprehension for the liberties of his country; systematically aiming at the extension of the royal Prerogative; jealous of lawyers and of the attacks of lawyers on what he deemed the rights of the Crown; apparently approving of Salisbury's project for composition, but at the same time inclining to a policy of distracting the attention of the people from the enlargement of the Prerogative by an aggressive Foreign Policy. But all these general objects never induced him to forget the particular object of self-aggrandisement which pervades the Diary. And this is the weak point in our advocacy when we would fain urge that Bacon was, at all events, sincere in his Monarchical theories. To be a Monarchist and exalt the Prerogative was so manifestly for his own interest, and he was so manifestly addicted to the constant contemplation of

his own interest, that we can never feel quite certain whether his conviction is prompted by public or private considerations. But the total impression which the Commentarius Solutus conveys to us is that, so far as Bacon could be sincere where his own interests were concerned, he was sincere in taking the side of the Crown against the side of the people. We, in these days, see with perfect clearness that "the Prerogative of the Crown would need to be curtailed when it was applied to less important objects than the maintainence of national unity."1 But Bacon saw nothing of this. He liked Parliaments; but Parliament was to represent the wishes of the people, not to govern. The King, assisted by the Council, was to rule in reality as well as in name; and for that purpose the Crown needed a revenue independent of the contributions of the people (except in time of war or other emergency), and the royal Prerogative required to be strengthened, not weakened. A good and wise king could govern better than a popular assembly. Whether James was equal to such a responsibility, and whether the favourites and flatterers whom he gradually collected round him, could supplement his inadequacies, Bacon never seems to have entertained a doubt. His intellect as well as his interests disposed him to prefer to see government in the hands of the few, and made him averse to "popularity" and popular men.

The private schemes of the Commentarius may be deferred for further consideration; we are now dealing only with the political notes; and first among these in importance comes an entry as to the method of dealing with the great obstacle in the way of the enlargement of the Prerogative-the resistance of the lawyers. Without the lawyers, the country-gentlemen in the House of Commons could have given no expression to the constitutional claims of the people, and therefore in order to silence the House James needed only to suppress the lawyers. Here Bacon was assured of the support both of the King and of the Archbishop of Canterbury (Bancroft). During the last two or three years (1605-8) there had been complaints on the part of the Ecclesiastical Courts that the Common Law Judges had interfered with their proceedings by Prohibitions, requiring

1 Gardiner, History, vol. i. p 42.

the former to proceed no further till they proved their right of jurisdiction. Bancroft, taking the part of the Ecclesiastical Courts, appealed to the King (1607) declaring that the Judges were mere delegates of the Sovereign, who therefore "had power to take what causes he pleased out of their hands and to determine them himself." Coke indignantly denied this. "Then," said the King, "I shall be under the Law, which is treason to affirm." The Chief Justice replied by quoting the saying of Bracton that "the King ought not to be under any man but under God and the Law." 1 No doubt Bacon has this dispute, and Coke especially in his mind, when he speaks of "mere lawyers," and suggests that it will be well to intimidate those who had seats in the House of Commons by the fear of losing promotion.

"Judges to consult with King as well as the King with Judges. Query, of making use of my Lord of Canterbury his opposition to the la(wyers), in point of reforming the laws and disprizing mere lawyers. "To prepare either collect (ions), or at least advice, touching the equalling of laws.

"Rem(inder); to advise the K(ing) not to call sergeants before parliament, but to keep the lawyers in awe."

By the side of these entries, there is a marginal note as follows:

"Summary justice belongeth to the King's prerogative. The fountain must run, where the conduits are stopped."

Another entry mentions a different kind of "Prohibitions" affecting non-Ecclesiastical Courts.

"Being prepared in the matter of Prohibitions. Putting in a claim for the K(ing). The 4 necessities, (1) time, as of war; (2) place, as frontiers remote; (3) person, as (for example) poor (persons) that have no means to sue those that come in by safe-conduct; (4) matter, mixed with State."

This refers to a dispute concerning jurisdiction between the Court of King's Bench, and the Council in the Marches of

1 Gardiner, History, ii. 39. Later (1608) Bancroft said it was "more likely that the poor would obtain justice from the King than from the country gentlemen who composed the House of Commons, or from the Judges who were in league with them. Juries were generally dependents of the gentry, and the cause of justice could not but suffer from their employment."-(Ib. 41).

Wales; of which we shall hear more hereafter. The Judges had unanimously resolved (Michaelmas, 1604) that four specified English counties were not within the jurisdiction of the Council, and that a "Prohibition" might be issued against the Council of the Marches, if the limits of their jurisdiction were exceeded.1 But the dispute was not settled here. We shall soon have to refer to a paper drawn up by Bacon on the subject not later than June, 1606. Another entry in the Commentarius, dated Feb. 15, 1607 (i.e. 1608) shows that the quarrel about "Prohibitions" continued at that time to rage, and that the King not only took the side of the Council against the Judges, but even appeared to desire the establishment, of more such irregular Councils for the purpose of "the distribution of justice" throughout the realm:

"Feb. 15, 1607.2 The K. assembled his Judges-not all, but certain of them-before their Circuits, and found fault with multitudes of Prohibitions. The particular which gave the occasion, was the complaints of the two Presidents of Wales and North. The K. was vehement, and said that more had been granted in four year of his Reign than in forty of former time; and that no kingdom had more honourable Courts of Justice; but, again, none was more cursed with confusion and contention of Prohibitions. Seemed to apprehend the distribution of justice after the French manner was better for the people and fitter for his greatness, saying that this course, to draw all things to Westminster, was to make him K. as it were of the Isle of France and not other provinces, so of a precinct about London and Westminster. Noted matter of profit was the cause why the Judges embraced so much. Warned a surceance of granting Prohibitions for the vacation following, with a dislike they should be granted but in Court, and shewed a purpose at some time to hear himself the matter and to define of it, though he spent many days about it. He said they put the subjects to Tantalus pain, that, when he thought to take the fruit of his suit, it fled from him."

Commenting upon this incident, Bacon says that "the Judges were in effect silent," but that they might have rejoined, without offence, that the question was whether the increase of Prohibitions might not have arisen from the encroachments of the lower and irregular Courts; which he appears to think at least a possible alternative.3

1 Spedding, Bacon's Works, vii. 574; Mr. Heath's Preface. 2 In modern reckoning February 15, 1608.

"So late as July 1608, Bacon seems to have been in private inclined to the opinion that, in the general struggle then going on, the encroachments had been more on the part of the local courts."-Mr. Heath, Spedding, Works, vii. 575.

But whatever may have been Bacon's private and theoretical opinion as to the rights of the dispute, we see, recurring to the former entry, that he intended publicly and practically to regard it only so far as it might be turned to the enlargement of the Prerogative of the Crown. He proposed to justify the Crown's interference with the ordinary course of justice on the grounds of four contingencies, 1st, troubled times; 2nd, possible disorder on the frontiers or Marches where the Council had jurisdiction; 3rd, expense and risk of long journeys for poor suitors, seeking redress against rich men, and unable to travel so far as Westminster; 4th, possibility that political questions" matter mixed with State "-might be involved in private suits.

The question of the jurisdiction of the Council of the Marches is important, in itself, as a thread in the tangled web of complications between King and Commonwealth which Bacon was bound, as a Statesman, to attempt to reduce to order; but it derives a special importance from the light which it throws on a treatise composed by him on The Differences in Question betwixt the King's Bench and the Council in the Marches. Although it was written (1606) two years before the Commentarius, yet the consideration of it falls fitly here, where we are taking a general view of Bacon's public and private attitude towards the political difficulties of his time; and in order to understand this treatise, some preliminary account is necessary of the origin, purposes, uses, and abuses of the disputed jurisdiction.


The reason for the original establishment of a Council on the Welsh Marches is easily understood. Some kind of special jurisdiction to settle disputes between Englishmen and semiforeigners might have obvious advantages. Accordingly, the Court of "the President and Council in the Dominion and Principality of Wales and the Marches of the same " originated in early times and was confirmed by Parliament, 34, 35 Hen. VIII., when it was armed with discretionary power over

« PreviousContinue »