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these days of comparative liberty, was sufficiently plain and obvious two centuries ago, and affords the only explanation of the resolution of the judges in Felton's case. The King, in referring the question to the Judges, alludes to this distinction when he says, that if the torture might be applied by law he would not use his prerogative in this point.' That torture was known and allowed' as an act of prerogative, the judges must have been fully aware; for, besides the notoriety of the practice, several of the individuals who joined in this resolution before they were raised to the Bench, were not unfrequently employed in examinations by the rack."
Such is the answer to Mr. Macaulay's accusations. "He overlooked the distinction between torture by the sentence of a court of law and torture by order of Council;" and, unless there is some latent defect in my reasoning, which has escaped my notice, it is conclusive.
Knowing the cautious habits of the profession of which Mr. Macaulay is a member, and thinking with great respect of his sagacious and disciplined mind, I am (unless I assume that he overlooked this distinction) wholly at a loss to conceive how he could venture to speak with such confidence. If it appear to have originated in habitual boldness, generated by frequently writing without expecting an answer, it is nothing but appearance. Mr. Macaulay has read again and again Lord Bacon's admirable Essay upon Boldness, and he well knows the times and places where confidence passes current, where counterfeit may be as valuable as sterling coin: but he was not speaking to a public assembly, and he must be a very inattentive observer of Mr. Macaulay's nature who can suppose that he would write ad captandum, to gain, what in our time is without difficulty obtained, vulgar applause by the encouragement of prejudice and the depression of superiority. He was addressing the reflecting part of the community, the philosophy of the country: the many who, to use the words of Milton, "in this great City, the Mansion-house of liberty, are sitting by their studious lamps musing, searching, revolving new notions and ideas, reading, trying all things, assenting to the force of reason and convincement;" and he well knew that, before this tribunal, neither declamation nor bold assertion would be of any avail. He knew that every word would be examined and tested; that the dross would be separated from the pure metal, and that he would be, as he will be, answered again and again by the admirers of Lord Bacon and the lovers of truth: which according to Lord Bacon's favourite doctrine always prevails,—
Temporis filia dicitur veritas non authoritatis."
If the confidence is supposed to have originated in conviction of the truth of the charge, the supposition is (without the same assumption) beset with difficulties, for it is necessary to suppose, that, extensive and accurate as is Mr. Macaulay's knowledge, and remarkable as is his memory, he either had never read or had forgotten,
not only the passage in Hume, which is known to every school-boy in England, but the passage in Rushworth, to which, in his preparation for his Review, he had himself referred, where the distinction is expressly recognised in the King's own words, "If Felton cannot be racked by law, I will not use my prerogative in this point;" and, even supposing the passages in Hume and in Rushworth not to have been present to his mind, it must be assumed that, when execrating cruelty, he wholly lost sight of the horrid barbarities by which public feeling was outraged during the reigns of Elizabeth, of James, and of Charles.
The next charge by Mr. Macaulay is, that Bacon examined Peacham by torture, and that he had pleasure in listening to the yells of this old clergyman. Mr. Macaulay's words are,
"This wretched old man was put to the rack; and while enduring the horrible infliction, was examined by Bacon, but in vain; no confession could be wrung out of him. It is well known that in 1628, only 14 years after the time when Bacon went to the Tower to listen to the yells of Peacham, &c."
Such is Mr. Macaulay's statement.-To clear the way it is necessary to say a few words of Sir Julius Cæsar, a relation of Lord Bacon, who died in his arms. I have often thought that a portrait of one of the most intellectual of men dying in the arms of one of the most benevolent, would be worthy of a great artist. Sir Julius Cæsar was Master of the Rolls in the time of King James. He was distinguished for his ability, his integrity, and his charity; "the charitable Sir Julius Cæsar," says Sir Henry Wotton, "grown so old that he was said to be kept alive beyond nature's course by the prayers of the many poor whom he daily relieved."
The following is an exact copy of the Warrant for torturing Peacham :
"18th Jany., 1614-5.
"A Letter to Sir Ralph Winwood Knt., His Majestie's Secretary of State, Sir Julius Cæsar Knt., Master of the Rolls, of His Majestie's Privy Council, Sir Gervaise Helwishe Knt., Lieutenant of the Tower, Sir Francis Bacon Knt., H. M.'s Attorney Generall, Sir Henry Montague Knt., His Majestie's Serjeant at Law, Sir Henry Yelverton Knt., His Majestie's Sollicitor Generall, Sir Randall Crewe Knt., H. M.'s Serjeant at Lawe, and Francis Cottington, Esq., Clerke of his Majestie's Privie Councell, and to every of them; whereas Edmund Peacham, now prisoner in the Tower, stands charged with the writing of a booke or pamphlett contayninge matters treasonable (as is conceaved), and being examyned thereupon refuseth to declare the truthe in those points whereof he hath beene interrogated. Forasmuch as the same doth concerne His Majesties sacred person and
Government, and doth highly concerne his service to have many things yet dyscovered touching the sayd booke and the author thereof, wherein Peacham dealeth not so clerelie as becometh an honest and loyale subject; these shall be therefore in His Majestie's name, to will and require you and every of you to repaire, with what convenient diligence you may, unto the Tower, and there to call before you the sayd Peacham, and to examyne him strictly upon such interrogatories concerninge the sayd booke as you shall think fitt and necessary for the manifestation of the truthe. And if you find him obstinate and perverse, and not otherwise willing or readie to tell the truthe, then to put him to the manacles, as in your discretions you shall see occasion. For which this shall be to you and to every of you sufficient warrant."
Upon what authority, I ask Mr. Macaulay, does he assert that Sir Francis Bacon was the unfortunate officer who was doomed to be the chief agent in the execution of this warrant? upon what authority, I ask, does he assert that Lord Bacon felt joy in witnessing the sufferings of this clergyman? If he had been reviewing the interesting life of Sir Julius Cæsar, might he not with the same propriety have said, that this venerable judge was the chief agent in the execution, and joyfully witnessed this barbarity? might he not have said that Sir Julius Cæsar went to the Tower to listen to the yells of Peacham? or is this a mere figure of speech without any knowledge who were the persons who were doomed to attend the execution of this warrant?-If Mr. Macaulay infer that, because Bacon was Attorney General, it was his duty, the answer is obvious. He did his duty, and common charity will feel that he must have done it most reluctantly. It is painful to be obliged to search for evidence to refute these random charges; but let me refer Mr. Macaulay to Bacon's letter to the King, dated January 27th, 1614.
"This day in the afternoon was read your Majesty's letters of direction touching Peacham, which because it concerneth properly the duty of my place, I thought it fit for me to give your Majesty both a speedy and private account thereof, that your Majesty knowing things clearly how they pass may have the true fruit of your own wisdom and clear seeing judgment in governing the business.
"From the regularity which your Majesty (as a matter in business of estate doth prudently prescribe in examining and taking examinations), I subscribe to it; only I will say for myself, that I was not at this time the principal examiner.'
Let me again refer to Bacon's Letter to the King, dated January 21st, 1614, in which he says, " although we are driven to make our way way through questions which I wish were otherwise," &c. pass from this subject by asking Mr. Macaulay whether he might not with the same propriety have said that Sir R. Winwood, the Secretary of state, or that Sir Henry Montague, or that all or any
of the other persons to whom the warrant was directed, were the officers by whom it was executed, and that they delighted in the sufferings which they witnessed?
But, even supposing that Bacon had been ordered to execute this warrant, does Mr. Macaulay contend or insinuate that he ought not to have obeyed the mandate?
His words are,
"If it be true that in the time of James I. the propriety of torturing 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."
The meaning of this assertion must be, that Bacon deserves censure, either because he did not disobey the law, or because he did not assist in reforming it. It surely cannot he necessary in the year 1841 to open the settled questions of obedience and resistance. Assuming that there are cases where resistance is a virtue, and thinking with veneration of such men as Plato, who, finding that his opinions did not agree with the corrupt manners of his country, refused to bear any place, and passed his life in the calm but obscure regions of philosophy, I shall assume, and I think without the hazard of contradiction, that in England every law officer ought to obey the law; that a Judge who disapproves of capital punishment ought to pass sentence of death; and that the sheriff, be his opinions what they may, ought to execute the law.
How can we be justified in disobedience, enjoying as we do the right, the grateful right, to point out any error in which a mistaken law is founded? "Obey as a subject, criticise as a free subject," are never to be forgotten maxims:
"This is true liberty, when freeborn men,
Having to advise the public, may speak free."
ever remembering Plato's admonition, "Our country is to be treated as our parents, with respectful persuasions not with contestations." The truth of this reasoning may easily be seen by Mr. Macaulay. He has for some years filled, with great satisfaction to the country, the high and important office of Minister of War. During the time of his enlightened superintendence of the painful duties of his office, the following statement appeared in the Morning Chronicle, April 3, 1840:
"Private Carter, of the second battalion of the Rifle Brigade at Windsor, who had been found guilty by a regimental court-martial of having induced two ignorant recruits to dispose of part of their regimental necessaries, and afterwards participating in the proceeds, underwent a portion of his sentence. He was sentenced to receive one hundred lashes. Upon being tied up he soon manifested the greatest terror, uttering the most dreadful shrieks. He continued up to the seventy-fifth lash to send forth
cries which were piteous and heart-rending in the extreme. The inhabitants of the houses which overlooked the scene retired to the back of their premises, and many left their residences to avoid the painful exhibition and to escape beyond the hearing of his horrid cries. At the end of the seventy-fifth lash he was ordered to be taken down and the remainder of the sentence was not inflicted. His back at this time was a mass of livid flesh, and blood running from him in streams. He was immediately afterwards marched off to the hospital to undergo the necessary cure."
Does Mr. Macaulay deserve the censure of all good men because he did not interfere to prevent this punishment? Who would be justified in saying that Mr. Macaulay had joyfully listened to the yells of Carter and lamented only that the executioner stopped at the 75th lash? If at some future time, when the English, like the Roman soldier, will dread to pass under the yoke as much if not more than the Tarpeian Rock, will a reviewer, in the improved reviews of those happy times, be justified in saying, "If it be true that in the reign of Queen Victoria the propriety of thus punishing soldiers 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 Mr. Macaulay, than in the case of an ordinary minister of war?"
The only remaining charge, which is rather insinuated than expressed, is, that Bacon did not assist in the abolition of torture; and, protesting against the right of society to censure any man for silence, the answer is easy. He did assist to the extent of his ability, by direct reform when society was ripe for the improvement; by indirect, when preparation was necessary. A true reformer, desirous to proceed not in aliud but in melius, is always cautious, not from suspecting his cause, but from knowing the times in which he lives. He does not attempt to sail against the stream when the tide is the strongest. He knows that the best ballasted vessel may be wrecked if there is too much press of sail, or the lead is not thrown when breakers are ahead. He is always mindful of the old maxim," Every man is not a proper champion for truth, nor fit to take up the gauntlet in the cause of verity: and many, from an ignorance of this maxim, and an immoderate zeal unto truth, have too rashly charged the troops of error and remain trophies to the enemies of truth."
A more steady, strenuous reformer than Lord Bacon, whether as a philosopher, as a statesman, or as a lawyer, never existed on earth. The love of reform was his ruling passion. It could not be otherwise. The love of reform is the child of knowledge. We cannot know misery without a desire to alleviate it.
The Novum Organum, the reform of philosophy, stands a seamark in the tide of time, and will for ever stand.
His endeavours to improve England and Scotland were incessant and successful. He had no sooner attained his object than he imme