did not appear that he had any intention of preaching it. The most servile lawyers of those servile times were forced to admit that there were great difficulties both as to the facts and as to the law. Bacon was employed to remove those difficulties. He was employed to settle the question of law by tampering with the judges, and the question of fact by torturing the prisoner.

Three judges of the Court of King's Bench were tractable. But Coke was made of different stuff. Pedant, bigot, and brute as he was, he had qualities which bore a strong, though a very disagreeable resemblance to some of the highest virtues which a public man can possess. He was an exception to a maxim which we believe to be generally true, that those who trample on the helpless are disposed to cringe to the powerful. He behaved with gross rudeness to his juniors at the bar, and with execrable cruelty to prisoners on trial for their lives. But he stood up manfully against the King and the King's favourites. No man of that age appeared to so little advantage when he was opposed to an inferior, and was in the wrong. But, on the other hand, it is but fair to admit that no man of that age made so creditable a figure when he was opposed to a superior, and happened to be in the right. On such occasions, his half-suppressed insolence and his impracticable obstinacy had a respectable and interesting appearance, when compared with the abject servility of the bar and of the bench. On the present occasion he was stubborn and surly. He declared that it was a new and highly improper practice in the judges to confer with a law-officer of the Crown about capital cases which they were afterwards to try; and for some time he resolutely kept aloof. But Bacon was equally artful and persevering. "I am not wholly out of hope," said he in a letter to the King, "that my Lord Coke himself, when I have in some dark manner put him in doubt that he shall be left alone,

will not be singular." After some time Bacon's dexterity was successful; and Coke, sullenly and reluctantly, followed the example of his brethren. But in order to convict Peacham it was necessary to find facts as well as law. Accordingly, this wretched old man was put to the rack, and, while undergoing the horrible infliction, was examined by Bacon, but in vain. No confession could be wrung out of him; and Bacon wrote to the King, complaining that Peacham had a dumb devil. At length the trial came on. A conviction was obtained; but the charges were so obviously futile, that the government could not, for very shame, carry the sentence into execution; and Peacham was suffered to languish away the short remainder of his life in a prison.

All this frightful story Mr. Montagu relates fairly. He neither conceals nor distorts any material fact. But he can see nothing deserving of condemnation in Bacon's conduct. He tells us most truly that we ought not to try the men of one age by the standard of another; that Sir Matthew Hale is not to be pronounced a bad man because he left a woman to be executed for witchcraft; that posterity will not be justified in censuring judges of our time, for selling offices in their courts, according to the established practice, bad as that practice was; and that Bacon is entitled to similar indulgence. "To persecute the lover of truth," says Mr. Montagu, "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.'

We have no dispute with Mr. Montagu about the general proposition. We assent to every word of it. But does it apply to the present case? Is it true that in the time of James the First it was the established practice for the law-officers of the Crown, to hold private consultations with the judges,

touching capital cases which those judges were afterwards to try? Certainly not. In the very page in which Mr. Montagu asserts that "the influencing a judge out of court seems at that period scarcely to have been considered as improper," he gives the very words of Sir Edward Coke on the subject. "I will not thus declare what may be my judgment by these auricular confessions of new and pernicious tendency, and not according to the customs of the realm." Is it possible to imagine that Coke, who had himself been Attorney-General during thirteen years, who had conducted a far greater number of important state-prosecutions than any other lawyer named in English history, and who had passed with scarcely any interval from the Attorney-Generalship to the first seat in the first criminal court in the realm, could have been startled at an invitation to confer with the Crown-lawyers, and could have pronounced the practice new, if it had really been an established usage? We well know that, where property only was at stake, it was then a common though a most culpable practice, in the judges, to listen to private solicitation. But the practice of tampering with judges in order to procure capital convictions we believe to have been new, first, because Coke, who understood those matters better than any man of his time, asserted it to be new; and secondly, because neither Bacon nor Mr. Montagu has shown a single precedent.

How then stands the case? Even thus: Bacon was not conforming to an usage then generally admitted to be proper. He was not even the last lingering adherent of an old abuse. It would have been sufficiently disgraceful to such a man to be in this last situation. Yet this last situation would have been honourable compared with that in which he stood. He was guilty of attempting to introduce into the courts of law an odious abuse for which no precedent could be found. Intel

lectually, he was better fitted than any man that England has ever produced for the work of improving her institutions. But, unhappily, we see that he did not scruple to exert his great powers for the purpose of introducing into those institutions new corruptions of the foulest kind.

The same, or nearly the same, may be said of the torturing of Peacham. If it be true that in the time of James the First the propriety of torturing prisoners was generally allowed, we should admit this as an excuse, though we should admit it less readily in the case of such a man as Bacon than in the case of an ordinary lawyer or politician. But the fact is, that the practice of torturing prisoners was then generally acknowledged by lawyers to be illegal, and was execrated by the public as barbarous. More than thirty years before Peacham's trial, that practice was so loudly condemned by the voice of the nation that Lord Burleigh found it necessary to publish an apology for having occasionally resorted to it. But, though the dangers which then threatened the government were of a very different kind from those which were to be apprehended from any thing that Peacham could write, though the life of the Queen and the dearest interests of the state were in jeopardy, though the circumstances were such that all ordinary laws might seem to be superseded by that highest law, the public safety, the apology did not satisfy the country: and the Queen found it expedient to issue an order positively forbidding the torturing of state-prisoners on any pretence whatever. From that time, the practice of torturing, which had always been unpopular, which had always been illegal, had also been unusual. It is well known that in 1628, only fourteen years after the time when Bacon went to the Tower to listen to the yells of Peacham, the judges decided that Felton, a criminal who neither deserved nor was likely to obtain any extraordinary indulgence, could not lawfully be put to the question.

We therefore say that Bacon stands in a very different situation from that in which Mr. Montagu tries to place him. Bacon was here distinctly behind his age. He was one of the last of the tools of power who persisted in a practice the most barbarous and the most absurd that has ever disgraced jurisprudence, in a practice of which, in the preceding generation, Elizabeth and her ministers had been ashamed, in a practice which, a few years later, no sycophant in all the Inns of Court had the heart or the forehead to defend.*

Bacon far behind his age! Bacon far behind Sir Edward Coke! Bacon clinging to exploded abuses! Bacon withstanding the progress of improvement! Bacon struggling to push back the human mind! The words seem strange. They sound like a contradiction in terms. Yet the fact is even so: and the explanation may be readily found by any person who is not blinded by prejudice. Mr. Montagu cannot believe that so extraordinary a man as Bacon could be guilty of a bad action; as if history were not made up of the bad actions of extraordinary men, as if all the most noted destroyers and deceivers of our species, all the founders of arbitrary governments and false religions, had not been extraordinary men, as if nine tenths of the calamities which have befallen the human race had any other origin than the union of high intelligence with low desires.

Since this Review was written, Mr. Jardine has published a very learned and ingenious Reading on the use of torture in England. It has not however been thought necessary to make any change in the observations on Peacham's case.

It is impossible to discuss, within the limits of a note, the extensive question raised by Mr. Jardine. It is sufficient here to say that every argument by which he attempts to show that the use of the rack was anciently a lawful exertion of royal prerogative may be urged with equal force, nay with far greater force, to prove the lawfulness of benevolences, of ship-money, of Mompesson's patent, of Eliot's imprisonment, of every abuse, without exception, which is condemned by the Petition of Right and the Declaration of Right.