Lions In Conflict: Ellesmere, Bacon And Coke The Years Of Elizabeth

LIONS IN CONFLICT: ELLESMERE, BACON AND COKE
THE YEARS OF ELIZABETH
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE ST THOMAS MORE SOCIETY
SYDNEY, 14 NOVEMBER 2006


The four decades from 1580 to 1620 marked a transformation in English history when the political, social and legal systems cast off the last vestiges of medieval forms and created the foundations of one of the most dynamic nations the world has ever known.

As one of the foremost historians of the period has put it:

This was also the period when England disengaged from Europe – the last outpost at Calais had been lost by Mary Tudor in 1558, just before Elizabeth’s accession – and began some four centuries of a cult of insularity, perhaps most notably in religion, but not least in the law, where the common lawyers triumphed over the ecclesiastical and chancery lawyers and cut off the latter from Continental influences. The substantial debt to the civil law was forgotten, indeed suppressed. The legal system that emerged has proven singularly effective and remarkably robust.

To a substantial degree, this transformation of the law was the work of three great lawyers: Lord Ellesmere, Sir Edward Coke and Francis Bacon.

Thomas Egerton, to whom I will refer by his later title, Lord Ellesmere – was Solicitor General 1581-1592, Attorney General 1592-1594, Master of the Rolls from 1594, Lord Keeper (as the person acting as Lord Chancellor was called when not a peer) 1597-1603 and Lord Chancellor 1603 until his death in 1617. He was an accomplished statesman, a reforming judge of consummate ability, a patron of artists, a dedicated family man and the founder of a great library, a great fortune and a considerable dynasty – Campbell in his Lives of the Lord Chancellors, whilst noting the demise of the male line, traced Ellesmere’s genes to no fewer than 35 noble houses including Montagu, St Helens, Ellenborough, Erskine, Lyndhurst, Redesdale, Brougham, Bruce, Campbell, St Leonards and Wensleydale. Ellesmere has few equals in English history.

Edward Coke, primarily through his writing as compiler of The Reports, the most comprehensive and influential compilation of case law in the history of the common law and as the author of the Institutes, which remained for centuries the most complete statement of the law, would have a larger impact on the development of the common law than any other individual. Appointed Solicitor General in 1592 and Attorney General in 1594, in both offices succeeding Ellesmere, his natural progression to the bench was delayed by the nine year absence of a vacancy in the senior judiciary. He served both Elizabeth and James as a brutal prosecutor and as custodian of the Crown’s prerogative. He was appointed Chief Justice of the Court of Common Pleas in 1606, moved sideways, on account of signs of insubordination, to Chief Justice of the Kings Bench in 1613, from which he was sacked by King James for gross insubordination in 1616, whereupon he pursued a career in Opposition as a parliamentarian until his death in 1634.

Francis Bacon was the precocious son of Sir Nicholas Bacon, the Lord Keeper of Elizabeth’s early years. Francis’s talent, obvious but not then recognised as genius, inclined him to the contemplative life, but his father’s sudden death meant that he, the second son of a second marriage, had not been provided for financially and had to make his own way in the world. Elizabeth never gave him a formal appointment, other than as “Queens Counsel”, the first in history it seems, a title originally devoid of importance, other than as a source of a few Crown briefs, and conferred merely as a token gesture, probably to appease the Queen’s most trusted Councillor, Lord Burghley, Bacon’s uncle, and to get Bacon’s mother, an intelligent and determined woman, off everyone’s back. Eventually, Elizabeth’s successor, King James would recognise him: Solicitor General in 1607, Attorney General in 1616, Lord Keeper in 1617 and Lord Chancellor in 1618, until his removal in a corruption scandal in 1621. His influence as an essayist and philosopher, especially of science, is of such permanence as to overwhelm his contribution as a lawyer, but the latter was of the highest order, if not, unlike his other achievements, for the ages.

These were formidable men whose contribution and interaction determined many critical features of English legal practice for centuries. The themes of this period are with us still. What is the proper role of the judiciary? Where should the line be drawn between judicial activism and fidelity to the law? What is the basis of the legitimacy of law: custom, representing historical continuity, or the command of a sovereign?

The conflicts between Coke, on the one hand and Ellesmere and Bacon on the other, would be repeated in the next generation in a vitriolic dispute between Thomas Hobbes, who had been Bacon’s secretary, and Sir Mathew Hale, Coke’s successor as Lord Chief Justice. Similar issues would be engaged between Blackstone and Bentham and between Jefferson and Marshall. They feature in contemporary debates over judicial activism, bills of rights, the scope of judicial review and the principles of statutory interpretation.

Legal history, like all history, always has contemporary relevance. Indeed, perhaps more than any other sphere of discourse, the law can never escape its history.

Coke, invoking Bracton who described the law as “the king’s bridle”, challenged the contemporary assumption that the monarch retained direct authority over both executive and judicial power. Coke asserted that the exercise of judicial power had been delegated to an autonomous, albeit perhaps not independent, judiciary. Ellesmere and Bacon supported the rights of the Crown in all respects, as Coke had done when he was Solicitor and Attorney. As a judge, Coke also asserted the authority of the common law courts over all other courts, mostly based on an exercise of the prerogative: the equitable Court of Requests, successfully; the ecclesiastical High Commission, also successfully; the court of Chancery unsuccessfully and the High Court of Parliament, also unsuccessfully. Each of these territorial disputes brought him into conflict with Ellesmere and Bacon.

When Bacon came to rewrite his essay “On Judicature”, in the 1625 edition of his Essays, he propounded, with Coke in mind but, no doubt, still hoping to restore himself to favour, that the role of a judge was subordinate to royal authority. Drawing on the example of King Solomon, universally regarded as a wise judge who personally exercised the judicial power, and on the lion as a symbol of fortitude and wisdom, Bacon wrote:
The sovereignty that Bacon had in mind was that of the king. Today, similar issues are debated with reference to the sovereignty of Parliament.

I have drawn on Bacon’s metaphor for the title of this lecture series: “Lions in Conflict: Ellesmere, Bacon and Coke”. This first lecture will focus on the last decade of the reign of Elizabeth.

THE LAST DECADE

The dominant factor of that last decade was the war with Spain, a conflict in part national and in part religious. After the triumph over the Armada in 1588, the English state lost a series of key councillors: the Earl of Leicester, the Queens greatest favourite, in 1588; Sir Francis Walsingham, her spy master, in 1590; and Sir Christopher Hatton, in 1591. He had caught her eye as a dancer and progressed to Lord Chancellor, performing no more than adequately, Elizabeth resolving not to again appoint a favourite to an important state office. Of the generation of statesmen who had guided the nation for the first thirty plus years of her reign, only Sir William Cecil, now Lord Burghley, remained. As the Queen refused to fill vacancies, the Privy Council became smaller and older, except for the addition in 1591 of Burghley’s exceptionally capable son, Robert Cecil, the future Lord Salisbury and, in 1593, of Robert Devereux, the second Earl of Essex, godson and later stepson of Leicester and the Queen’s newest favourite.

The principal characteristic of the older generation was a commitment to stability, which required caution, pragmatism, prudence and a talent for principled compromise. In Burghely’s metaphor: “It’s a good blade that bends well”. [2]
This was a generation born in the shadow of the Wars of the Roses: a generation that had experienced most of the social, religious and political disruption of Henry VIII’s search for a male heir; that had witnessed the full blast of the early Reformation and that was personally affected by the fluctuations of fortune as the Crown passed from Henry VIII, to Edward VI, to Mary Tudor and then entered the comparative calm of Elizabeth’s early years. Members of this generation understood the precariousness of social harmony.

The family motto of Sir Nicholas Bacon – mediocria firma, moderation is safest – reflected the dominant ideology of this generation. This was also the instinctive predisposition of the Queen, who had grown up not knowing when she may be executed, as her mother Ann Boleyn had been, and was naturally cautious, with a real understanding of the risks of action and the advantages of passivity. Nothing of significance could happen without her consent and she, determined to rule and not merely to reign, ensured decisions were thrown up to the top by fostering rivalry amongst her courtiers.

At the beginning of her reign the English political elite was convinced that a woman could never rule: indeed, that it was an unnatural phenomenon. The Scottish Protestant firebrand, John Knox, reflected the universal prejudice in his diatribe: The First Blast of the Trumpet Against the Monstrous Regiment of Women, directed against the contemporary Catholic rulers of England, France and Scotland, published with exquisitely bad timing just before the accession of the Protestant Elizabeth. However, even more important than a husband who could direct matters of state, was the need for a legitimate heir and a smooth succession. Her advisors devoted much of their time and energy to marrying Elizabeth off, efforts which she pretended from time to time to take seriously. By the last decade, producing an heir became irrelevant, but the problem of the succession remained.

The preoccupation of the age is reflected in the works of Shakespeare. So many of his plays are concerned with political instability and the legitimacy of succession: most pointedly in the Wars of the Roses series – Richard II, Henry IV x2, Henry V, Henry VI x3 and Richard III – but also in Macbeth, Hamlet, Julius Caesar, King Lear, Coriolanus and even The Tempest.

By the 1590’s a new generation had arrived, one that had no personal experience of instability or of the dangers of unrestrained ambition. One historian [3] describes this new generation as a group of “aspiring minds”, drawing on the words Christopher Marlowe placed in the mouth of his creation, the most ferociously ambitious character of the contemporary stage, Tamburlaine: “Nature doth teach us all to have aspiring minds”, he had said. This generation manifested a preoccupation with the acquisition of power and wealth. It was also the first generation to discover Machiavelli.

It was a generation of extravagant, even breathtaking, ambition driven by a passionate, youthful intensity: Sir Philip Sidney, soldier and poet who died young in battle and on his death bed conferred both his best sword and the chivalric legend on the Earl of Essex; Sir Walter Ralegh with the colonial expansion to Virginia and the quest for El Dorado in Guiana; the literary ambitions of Edmund Spenser, Christopher Marlowe, John Donne (who was Ellesmere’s secretary until scandalously eloping with Ellesmere’s sixteen year old niece), Ben Johnson and, of course, Shakespeare; the classical scholarship of the men who would compile the King James Bible, the only great work of literature ever written by a committee; the creators of future wealth who established the East India Company, the Moscovy Company and the Levant Company; Sir Edward Coke’s project to produce the first full set of law reports and to comprehensively state the law in his Institutes – Bacon himself said that before Coke’s Reports “the law had been like a ship without ballast” [4]; perhaps most ambitious of all was the soaring intellectual scope of Francis Bacon – “I take all knowledge to be my province” – he wrote to his uncle Lord Burghley, calling him “the Atlas of this commonwealth” and explaining his need for money – “I have as vast contemplative ends ,as I have moderate civil ends”. [5]


The energy and ambition of this era continues to inspire awe.

The central power struggle of Elizabeth’s last decade was between Cecil and Essex for the role of pre-eminent advisor after Burghley died. He, of course, vigorously promoted the claims of his son, whom he had groomed for the task. Essex had the special claims of an aristocratic heritage. Essex had been Burghley’s ward and had grown up with Cecil. The contrast between the handsome, healthy Essex and the stunted, hunchback Cecil, his curved spine was probably hereditary scoliosis [6], whom Elizabeth enjoyed calling “my pygmy”, reinforced Essex’s sense of natural superiority and was already apparent in childhood.

Later, in his essay “On Deformity”, which he only dared publish after Cecil’s death, Bacon explained Cecil’s drive:

Rather wistfully he explained how he, and no doubt Essex, had underestimated Cecil because of his deformity:

Both Essex and Cecil were substantial political figures creating rival factions at court. Historians differ over the role of factions under Elizabeth, but not in her last decade. [7]
Then, the struggle over royal patronage and foreign policy became intense and English politics became polarised.

To a significant degree wealth, as well as political power, was in the gift of the monarch. The offices of state, monopolies over trade and other privileges, were exploited for personal gain. A century of inflation and declining returns from agricultural property meant that even the higher aristocracy needed royal patronage. Access at court was the essential distribution point for patronage. Access was often bought. The courtier’s life was one of fawning and flattery in a context of intense rivalry and shifting personal allegiances.

On one estimate Elizabeth’s court consisted of some 1700 persons, about 1000 of them below stairs. [8]
The political nation – the aristocrats, upper gentry and clergy who mattered – may have comprised some 3000-4000 persons which number, on one historians estimate, was about twice the number of posts and perks available for distribution. [9]
There was plenty of scope for conflict. [10]


The main players developed a pyramid of supporters, obtaining royal approval in exchange for loyalty and, often, payment from their acolytes. There were many who had access to the Queen but, in her final decade, few had real influence. The spoils system became factionalised, primarily between those who looked to Cecil and those who looked to Essex.

There were also significant policy differences. Essex had inherited from Leicester the leadership of those who advocated a policy of belligerence towards Spain. Cecil, like his father, supported Elizabeth’s risk averse policy of minimal engagement and England adopted its long term policy of preserving a balance of power in Europe, relevantly, at the time, the balance between the great powers Spain and France, intervening only to preserve the balance and conserving resources whenever the risks receded. Essex, with grandiose ideas for English engagement, supported every adventure to liberate Europe from what he saw as Spanish tyranny, with modest military success but with an élan and bravado that attracted popular acclaim. He was never conscious, as the Cecils, father and son, were always conscious of how the English state lived on the edge of bankruptcy.

It was in this fractious environment that Ellesmere, Coke and Bacon had to find their way. As Bacon would explain, in his essay “Of Great Place”, published after his fall:

“The rising unto place is laborious; and by pains men come to greater pains … and by indignities men come to dignities. The standing is slippery, and the regress is either a downfall, or at least an eclipse, which is a melancholy thing … All rising to great place”, he wistfully concluded “is by a winding stair”.

PARLIAMENT OF 1593

Bacon’s talent was so apparent that he attracted jealousy and suspicion from the start. Promoting him entailed a risk that he could go further than his patron. Moreover, the quality of his intellect engendered doubts about his willingness to show the thanks and loyalty that a patron expected. Perhaps most of all, his transparent combination of conceit and obsequiousness made it almost irresistible for anyone who could frustrate him to do so.

Elizabeth, who had watched him grow up, treated him as a member of the court but the possibility of her patronage was destroyed by Bacon’s performance in the Parliament of 1593. He was returned for Middlesex and was, accordingly, the member for Westminster itself. However he failed to understand what was expected of him as a courtier. He spoke critically of the Crown’s demands in a way that was to prove fatal to his prospects under Elizabeth.

The conflict with Spain continued and a second armada was expected to be launched by the gout ridden asthmatic Phillip of Spain, once married to Mary Tudor when Queen of England, still plotting from his black velvet wheelchair in the Escorial. His daughter, the Infanta, had replaced Mary Queen of Scots, executed in 1587, as the preferred Catholic claimant to Elizabeth’s throne.

Furthermore, rebellion had risen in Ireland again, not for the last time. The English alliance with France against Spain was in doubt and a separate peace between them could only come at England’s expense. Henri IV of France, the Huguenot founder of the House of Bourbon, had succeeded to the throne as the husband of Margot, the daughter of Henri II and Catherine de Medici, after the last of their incompetent and feckless sons, including the husband of Mary Queen of Scots, had died. The logic of Henri’s position was such that he would inevitably reconvert to Catholicism, which he did that July, famously proclaiming: “Paris is worth a mass”.

With a deteriorating international situation and a real chance of a second invasion attempt, the Crown was determined to obtain more than the customary amount of tax, then called the “subsidy”. Lord Burghley, the Lord Treasurer, proposed a triple subsidy. The 1589 Parliament, held immediately after the Armada, had voted a double subsidy payable over four years, then an unprecedented increase in taxation. That was about to expire. Burghley proposed the subsidy be payable each year instead of the normal annual half subsidy and that that continue for three years.

The newly influential Earl of Essex had been unusually active in the elections for this Parliament. He organised seats in the Commons for no less than sixteen dependent servants, relatives and friends. [11]

Other members who did not owe their election to Essex, like Francis and Anthony Bacon, were also attracted to this rising star. Generally, his supporters proved loyal to the Crown. Burghley also had nineteen relatives and dependents in the Commons. [12] However his nephews, the Bacon brothers, were no longer in his camp.

Coke, under the patronage of Burghley, had been appointed Solicitor General in 1592. At that time Elizabeth called Coke to her presence and gave him a dressing down about how, as a barrister, he had vigorously defended the estates of two traitors from confiscation to the Crown. She watched as Coke, in tears, humbled himself before her. She then announced his appointment. The next year, no doubt on Burghley’s advice, she chose him as the royal nominee for Speaker of the House of Commons, which role he was to perform, notably in his opening and closing speeches in the presence of the Queen – ludicrously obsequious to the modern ear – to the complete satisfaction of the court party. [13]

The House of Commons sat in what had once been St Stephen’s church, a royal chapel commenced by Henry III and completed by Edward III as part of the palace of Westminster. It was designed in conscious imitation of Sainte Chapelle on the Ile de la Cite in Paris, where one can still see the dazzling polychrome of gold and crimson and azure, with stained glass and stone tracery. St Stephen’s had frescoes of the Adoration of the Magi and of St George with Edward III, of a character destroyed throughout England by the Protestant iconoclasts, the Taliban of their day. When the Order of Canons of St Stephen’s was abolished by the Chantries Act of 1547, the House of Commons took over the church, placing the Speaker’s chair on the medieval dais where the altar had stood, with the members facing each other in the choir stalls. This remained the form of the Commons when reconstructed, in the identical inadequate dimensions, after its destruction in the fire of 1834 and also after the destruction of its replacement by bombing in 1941.

In a tradition established in 1523 by Sir Thomas More and maintained to this day in Parliaments throughout the sphere of English influence, including New South Wales, Coke as Speaker requested full freedom of debate from the Queen. Indeed speeches in the Commons were theoretically secret. The freedom granted was of little account. One Puritan, a collective noun already applied to members of a variety of Protestant sects, wished to raise the taboo subject of the ageing Queen’s succession – the topic which most infuriated Elizabeth – and was imprisoned in the Tower. Another Puritan who proposed a bill to regulate the judicial authority of the Church courts was placed under house arrest. When the Commons carried amendments to the government bill which would extend anti-Catholic legislation to Protestants who questioned the Church of England, the government retaliated by hanging two imprisoned Puritans at Tyburn. Freedom and confidentiality of speech were an illusion, as all knew. As she had done in previous Parliaments, Elizabeth conceded “liberal but not licentious speech, liberty but with due limitation”. [14] She would decide what was which.

Nevertheless, the Commons retained a sense of independence of great future significance. It took pride in such manifestations of institutional autonomy as it was permitted. In 1593 the members remembered the witty riposte of their Speaker in a previous Parliament, Sir John Popham, when he was Solicitor General, in response to the Queen’s impatient inquiry “What has passed in the Commons?” He had replied: “If it please your Majesty, seven weeks”. [15]


On the crucial money bill, the leading speech for the Crown was delivered on 26 February by Robert Cecil. His father, like Essex, of course, sat in the Lords. This was Cecil’s maiden speech. That he was entrusted with the primary task of obtaining supply from the Commons, indicated his emerging significance. He focussed on the Spanish threat and the related issue of Catholic recusants in England with, for the first time, a similar concentration on the schismatic tendencies of the Puritans. [16]


The parliamentarians – about half of whom were new members [17] – could not be taken for granted. However, it was Bacon, regarded as a member of the court party, who questioned the need for a subsidy of this size and proposed that it be spread out over a longer period. When Burghley proceeded to have the House of Lords declare that only the full subsidy would do, Bacon protested that it had always been the privilege of the Commons to be the first to grant, reflecting the already established practice for money bills to originate in the lower house. [18] When the issue was first put to a vote in the Commons, the Crown lost by 89 votes.

Burghley had become accustomed to getting his way in Parliament, not always successfully. Early in the Queen’s reign he had advanced an idea to strengthen the navy by increasing the number of experienced mariners in the fishing fleet. A statute of the 1563 Parliament, had added Wednesday to Friday as a compulsory fish day – the meat eaters of the nation called it “Cecil’s Fast”. [19] Widespread rejection of official intermeddling with such matters and Puritan objections to the extension of a “popish” practice led to its repeal about 20 years later.

Cecil led the negotiations for the Crown and eventually achieved agreement with a minor compromise. The triple subsidy would be paid over four years instead of three. In accordance with tradition Coke, as Speaker, carried the money bill on a silver tray to the Lords chamber where the Queen thanked her Commons for “the free gift of money”. [20]

Elizabeth was full of praise for the Parliament of 1593.Burghley and Cecil had achieved their entire program: the triple subsidy and bills regulating Puritans and, as the title of the bill put it, “popish recusants” whose movement was restricted to a five mile radius from their homes. In her closing address, Elizabeth emphasised her displeasure with those who had questioned the triple subsidy. They had forgotten, she said, “the urgent necessity of the time and dangers that are imminent”. [21] She would never completely trust Bacon again.

Coke had successfully manipulated, with considerable legal skill, the procedure of the Commons in the government’s interests [22] including, in the ridiculously cramped chamber with inadequate seating, adroit deployment of the inertia that arose from the rule that any one who wanted to vote Aye had to go outside while the Noes stayed seated. [23]


Coke had proven his loyalty to the Crown. Bacon had advocated the contrary institutional interests of the Commons. Later their roles would be reversed.

ATTORNEY GENERAL

The post of Master of the Rolls, in effect deputy to the Lord Chancellor, became vacant in February 1593. By April, when Parliament was prorogued, it had become apparent that the post would go to Ellesmere, then Attorney General. His logical successor, well established by his own and his predecessor’s precedent, was the Solicitor General, Coke. However, Bacon saw this as an opportunity for himself. He wrote to his cousins, Robert Cecil and his half brother Thomas, Burghley’s disappointing son from his first marriage, asking them to intervene with their father on his behalf. He also invoked the assistance of his new patron, the Earl of Essex.

Burghley wrote a non-committal letter to the formidable Lady Bacon; “I am of less power to do my friends good than the world thinketh”. [24] No doubt he was not convinced that his nephew was a preferable appointment to the more experienced and legally accomplished Coke, who could also be trusted to be loyal to Burghley, but he spoke the truth to his sister in law. He knew that Elizabeth would not appoint Bacon although, it appears, he believed that she could be convinced to appoint him to the lesser post of Solicitor General, which Coke would vacate.

The twenty seven year old Essex regarded this as a challenge. A patron had to be able to show how highly esteemed he was at court. There was no better way to do that than to achieve the miraculous. In any event it was in his own interests to prevent the elevation of a Cecil nominee. Bacon and his brother Anthony had become part of the earl’s circle, a group of well educated, well connected males whose personal interaction displayed a passionate intensity, with distinct homosexual overtones.

Anthony, for many years one of Elizabeth’s spies, or intelligencers as they were then called, created a parallel service for Essex, so that he could establish his utility to the Queen by revealing information which Burghley had been unable to obtain.

Francis became an advisor on domestic policy and, particularly, about how the earl should establish himself as an advisor to Elizabeth – “winning the Queen” as Bacon put it, in a remarkably candid letter of advice. It was dangerous, he told the earl, to manifest pride, seek popularity or pursue military glory. It was essential to maintain self control; to avoid tantrums and sulking; to always appear spontaneous and witty; to show proper deference, for example, by promoting a policy or candidate for office unlikely to be accepted, so as to readily give way when rejected; to cultivate a serious image and indicate a degree of independence from her favour, for example, by taking time away from court for unexplained private affairs; to stop pursuing military assignments that may take the earl on risky ventures away from court and stoke Elizabeth’s suspicion of martial achievement; to recommend another, but friendly, military figure be added to the Privy Council; to promote another, but not too ambitious, favourite so the Queen felt in control of her court; and never, never to upstage the Queen. [25]
It was good advice, of which Machiavelli, not to mention Burghley, would have been proud, but which the mercurial earl did not take. Such dissimulation was impossible for a true aristocrat. He believed political leadership required the same style as military leadership.

Later, Bacon revealed that Essex would gloat when he got his way:
It was Essex’s youth, charm, classical learning, looks, energy, flamboyance, candour and even his moods that captivated the aging monarch, but as a court favourite, not as a trusted councillor. His application and skill as a military leader, which he clearly regarded as the principle source of chivalric honour, took him away from the poisonous banalities of court politics, to his cost, as Bacon kept telling him. Nevertheless, it was also his military exploits that the Queen most appreciated and which created an independent political base amongst his associates and in public acclaim.

Coke had fifteen years of experience at the bar and was performing well as Solicitor General. Bacon had never argued a case. Essex got him his first brief to represent one of his retainers. [27]
Essex took full advantage of his access as the current favourite to implore Elizabeth to appoint Bacon. Indeed he launched a campaign that must have bored her and which, eventually, infuriated her. She told him the one thing against Coke was that he was too young at forty one, and Bacon was only thirty two. [28] She delayed the appointment while Essex’s entreaties continued. She was probably quite amused by the young earl pleading with her on his knees. She always indulged him, but not in matters of state. “I find her very reserved”, Essex wrote to Bacon in February 1594, “yet not passionate against you till I grow passionate for you”. [29]

Within a few weeks, on 10 April, she signed letters patent appointing both Ellesmere and Coke. “No man ever received more exquisite a disgrace” Bacon wrote. [30]


LOPEZ

Today it is difficult to understand just how much turned on the life of the monarch. In about a decade, between 1547 and 1558, the state religion of England had changed three times. In accordance with the rule of male primogeniture, which remains the principle to this day, Henry VIII’s only son, succeeded him as Edward VI and established a Protestant ascendancy for five years. He was succeeded, after a ten day interregnum designed to protect the Protestant cause, by Mary, Henry’s eldest and indubitably legitimate daughter by his first wife Catherine of Aragon. Mary Tudor practised the traditional Catholic faith and, after a five year reign, was succeeded by Elizabeth who re-established a separate church. The Protestant martyrs of the reign of ”Bloody Mary” were succeeded by the Catholic martyrs of Elizabeth’s reign. If Elizabeth had died before 1587 she would probably have been succeeded by Mary Queen of Scots and Catholicism could, subject to the outcome of the inevitable turmoil, have been restored as the state religion.

The life of Elizabeth was under threat throughout her reign. There were numerous plots and attempts on her life from Catholic sources – although not as many as those announced to have been thwarted. These threats were legitimised by the 1570 proclamation, Regnan in Excelsis, by Pius V excommunicating Elizabeth and denouncing her as “a servant of all iniquity” [31]. The English governing elite was not convinced by the explanation issued by his successor, Pope Gregory XIII, in 1580 that English Catholics were not bound by the Bull until it could be executed. Catholics did assassinate other European leaders: William the Silent in the Netherlands in 1584 and Henri III of France in 1589. Where the religious allegiance of a nation could turn on the life of the monarch, there were always those who would attempt assassination.

This religious tension was a fertile source of rumour and unfounded allegations: never more so than in the trial and execution of Elizabeth’s personal physician, Dr Roderigo Lopez, a Jewish convert and refugee from the Spanish Inquisition in Portugal. This was an era when doctors throughout Europe were often politically important, by reason of their access. A doctors plot was the ultimate nightmare. No one was in a better position to administer poison to the Queen and get away with it.

Essex, trying to inveigle himself into the Queens inner political sanctum, sought to replicate Burghley’s intelligence network and had tried to recruit Lopez, who had a range of international connections and had worked for Walsingham and for Burghley in the past. Essex had been furious when the doctor told Elizabeth of his approach. It was, it appears, Anthony Bacon who convinced Essex to have a close look at Lopez. That investigation involved a direct conflict between the Cecils and Essex and coincided with the dispute over the campaign to have Francis Bacon made Attorney.

Somehow Essex became convinced that Lopez’s medicines were the cause of the Queen’s maladies. At first, with Burghley and Cecil refusing to accept Essex’s allegations, they were denounced by the Queen as ridiculous: “A rash and temerarious youth” she called Essex, “to enter into a matter against the poor man which he could not prove, and whose innocence she knew well enough”. [32]


Smarting at this initial failure, Essex intensified his inquiries, which eventually bore fruit of sorts. Indeed there are indications that Essex’s own intelligence service had encouraged the conduct that later proved compromising. [33] Lopez had led a double life and may well have been a double agent or a triple agent or some further arithmetical progression in this murky world of deception built upon deception. The witnesses against him were so lacking in credibility that it is not possible to say now, or then, where the truth lay.

Lopez had some links to Spain. He may well have originally done that as an agent for Walsingham, who had since died and whose private papers had disappeared. Lopez, it transpired, had had continued contact with Spanish agents, but in whose interests? It became known that the King of Spain had sent Lopez a valuable ring. Some of Lopez’s former associates, who had made a profession of duplicity, proved willing to incriminate him, under threat of torture. They made allegations of a conspiracy to kill the Queen. Whatever it was that Lopez had to hide in his contact with Spain, this allegation makes little sense. The sources were of dubious veracity, but paranoia about Spanish conspiracies meant that no risks could be taken. The result of the Lopez affair was that talk of peace with Spain ceased, as may have been Essex’s real objective.

The Cecils, perhaps to hide their own contact with some of those sources or their overtures for a peace with Spain, switched sides and supported Essex’s campaign. Lopez, after lengthy interrogation, confessed, in the face of a threat of torture, he subsequently alleged. [34]


Officially, there had not been any Jews in England since they were expelled by Edward I in 1290, not to return until Oliver Cromwell lifted the prohibition in 1656. Some migrants from Portugal, called marranos, covertly practiced their faith. Lopez may have been one, although he denied it. This was the era when the Spanish Inquisition was at it height. It had originally been established for the explicit purpose of determining whether the conversos – Spaniards of Jewish heritage, whose ancestors had converted when the Jews had been expelled from Spain a century before – were secretly still practising Jews.

Only a few years before, Marlowe had produced The Jew of Malta, perhaps the most vicious piece of anti-semitic literature in the English canon, whose central character, Barabbas, had commenced a life of iniquity by studying medicine in order to poison Christians. [35] Marlowe was well aware of Lopez as a celebrity doctor with a highly profitable business administering enemas to the rich and powerful. In his Dr Faustus, when Faustus tricks a horse dealer, the dealer complains: “Doctor Lopus was never such a doctor, He has given me a purgation, he has purged me of forty dollars.” [36]


Shakespeare’s Shylock emerged from the Lopez affair, which had made Jewish perfidy the talk of London. At least Shakespeare allowed for some nuance in his character – “If you prick me, do I not bleed?” and the like. Neither Marlowe nor Shakespeare would ever have met a Jew.

The character Shakespeare created is so powerful that he takes over the play, in which he appears in only five of twenty scenes. The central character was intended to be Antonio, for he, not Shylock as is often assumed, is actually the “merchant of Venice”.

The Lopez connection with Shylock appears in a play on the words Lopus, the name by which Lopez was known in England, and “lupus” Latin for wolf. Shylock is accused during the trial scene of being possessed by an executed wolf:

“That souls of animals infuse themselves
Into the trunks of men; thy currish spirit
Govern’d a wolf, who hang’d for human slaughter-
Even from the gallows did his fell soul fleet,
And whilst thou layest in thy unhallowed dam
Infus’d itself in thee: for thy desires
Are wolvish, bloody, starv’d and ravenous”.

The prosecution of Lopez was a triumph for Essex. He had now displayed real influence. Elizabeth took him more seriously and everyone knew it. Shakespeare had good reason to put a spin on the Lopez case. Shakespeare’s principal patron and, some believe, the young man in the sonnets, the Earl of Southampton, was Essex’s closest friend and ally.

The Lopez trial, conducted in London’s Guildhall, was typical of its era – the presentation of a prosecution case as a fait accompli. Such testing of the evidence as occurred was done during the investigation phase. However, as that was often conducted, in cases of treason, with actual torture or under the threat of it, the information obtained was, as everybody involved must have known but never acknowledged, of dubious veracity unless capable of independent confirmation, which was rarely the case.

As Portia, Shylock’s prosecutor, put it:
“I fear you speak upon the rack
Where men enforced do say anything”.

Ellesmere, as Attorney General, opened for the Crown denouncing Lopez as “a perjured and murdering villain and Jewish doctor, worse than Judas himself”. [37] Coke, as Solicitor General, took over and quickly displayed the vituperative, hectoring style that would mark his prosecutorial career. Lopez, he declaimed, planned to “raise insurrection and rebellion, and overthrow the established religion and government”. [38]

He proceeded to make a series of extravagant, unsupported claims about an intention to undermine the religious and social foundations of England. The “evidence “ presented was carefully edited, omitting all of Lopez’s involvement on behalf of the state, and his close links to the Cecils.

“Lopez”, as one historian has observed, “was charged in a vacuum … A skeletal frame of narrative remained gutted of all context. The twin spectres of Catholic rebellion and Spanish conspiracy were summoned to fill it”. [39] Coke managed to portray the conspiracy as a plot at once Jewish and Papist.

Just before he was hung, drawn and quartered, Lopez cried out: “I love the Queen as well as I love Jesus”, to the laughter of the crowd that took this to be an unintentional confession of treason by the Jew.

A revival of Marlowe’s The Jew of Malta was the hit of the theatrical season.

SOLICITOR GENERAL

There is a detailed record of a direct confrontation between Robert Cecil and Essex when travelling together in a coach on January 30 1594,after a frustratingly inconclusive interrogation of Lopez. Cecil asked, disingenuously, whom Essex favoured for the vacant post of attorney general. Essex angrily replied that his support for Bacon was well known.

”Good Lord” Cecil declared, “I wonder you Lordship should …spend your strength in so unlikely or impossible a matter” and asked him to identify a single precedent for a mere 33 year old to be appointed to such a post.

“I could name” the Earl retorted, one younger than Francis Bacon, of less learning, and of no greater experience, who is suing and shoving with all force for an office of far greater importance than the Attorneyship.” This was a pointed reference to Cecil’s ambition to be appointed Secretary of State, the Queen’s voice in the Privy Council, an office he had been performing for some years and to which he would be formally appointed in 1596, when Essex was abroad on a military expedition and had annoyed Elizabeth by failing to follow her instructions.

Cecil defended his candidature on the basis of the training he had received from his father. That training was immediately manifest in his successful goading of Essex. He asked him to consider Bacon for a lesser post: ”If your Lordship had spoken of the Solicitorship, that might be of easier digestion for Her Majesty”. Nothing could be more infuriating for Essex than to have Cecil propose that he back down.

“Digest me no digestions.” Essex exploded, ”It is the Attorneyship that I must have for Francis, and in that I will spend all my power, my authority and amity and with tooth and nail defend and procure the same for him”. He proceeded to threaten anyone who stood in his way. Cecil, who had in abundance all of the virtues of a councillor that Essex lacked, quickly reported the latest threats, bordering on the bumptious, to his father and to the Queen.

Essex’s petulance and lack of judgement were never displayed more clearly. His proclivity to escalate every exchange into a matter of personal honour, in which his own pride was engaged, often made his counsel useless. He was quite incapable of setting aside personal relations for tactical advantage. Such conduct, which came naturally to the Cecils, was alien to Essex’s code of aristocratic honour. Elizabeth would never have taken seriously Essex’s ambition to replace Burghley as her principal confidante and advisor.

Nor was Bacon any kind of threat. Attempts to cast Cecil as some kind of Salieri to Bacon’s Mozart, accepted by many historians, reflect an academic’s overestimation of the capability of an intellectual in politics.

As this coach exchange suggests, Cecil and Burghley did support Bacon for the vacant solicitor position and it seems likely that if Essex had sought that from the outset it could have been achieved. However in April, just after Coke had been made Attorney, Essex sought the Solicitorship for Bacon, the Queen reacted angrily. It is quite likely that she blamed him for the recent conviction and imminent execution of Lopez, of whose guilt she was probably and properly sceptical.

“The Queen bade me go to bed if I could talk of nothing else,” Essex told Bacon. “In passion I went away”. [40]


Essex took the rebuff as a personal humiliation. It was, however, only one of many. Elizabeth frequently rejected Essex’s nominees for placement. [41] She knew how the patronage system worked and she knew how to keep her courtiers in their place. For the great positions of state she knew whose advice was valuable and whose was not. In court politics there are those who are honoured, those who are humoured and those who are heeded. Essex was always in the first category, often in the second. He was rarely in the third.

Delay and prevarication was a standard tactic deployed by Elizabeth. It kept everyone unsure of her intentions. The rivalry this engendered prevented alliances consolidating which might remove her discretion. It took almost eighteen months for Elizabeth to fill the post of Solicitor General. Bacon missed out again. This time he blamed Coke, probably with reason. [42] Coke had applied himself as Attorney with energy and manifest loyalty. He would have had some influence on the appointment of his junior.

Understandably dejected, Bacon wrote to Essex:
MONEY

It is difficult today to accept the old concept of an office as a form of property. We are accustomed to the Roman idea of an office – only fully established in England in the mid 19th century – as a bundle of powers and duties. For that reason what we would now deride as corruption was regarded in the time of Elizabeth and James as routine, the natural order of things. As the Earl of Essex once told an aspirant for office; “I think your best friend will be your thousand pounds”. [44]


Officeholders were paid little. Bacon estimated the value of the Attorney’s office at 6000 pounds a year, but the official salary was only 81l 6s and 8p. [45] There were well established practices by which an office holder had access to the flow of funds associated with the office. Payments were regarded as fees for services. The boundary between reasonable remuneration and abuse of power was always unclear.

The patron client relationship, which constituted the primary bond of court politics, had a well established tradition of gift giving. The line between a gift and a bribe was inexact and rarely enforced. When a senior, and notoriously venal, lawyer found his expectation for appointment as Master of the Rolls disappointed, when Ellesmere kept that office in addition to the post of Lord Keeper, he promptly asked Ellesmere to repay the “loan” of 400 pounds he had advanced. [46]


Judges kept the filing fees of their courts, with established rates for each step in the process, like sealing a writ. The Chief Justice, whose annual salary was about 225 pounds, [47] could also sell subordinate offices, like that of the prothonotary, with its own right to keep certain fees. That was how judicial officers were paid until the mid 19th century. Judicial office was very lucrative and judges had a vested interest in attracting work to their courts, not an unknown, albeit no longer lucrative, phenomenon even today. This will be a significant theme of a future lecture in this series.

In 1552, a new statute on bribes and sale of offices expressly exempted the office of chief justice from its scope. It was observed of one chief justice: “He was a very honest man, for he left a small estate”. [48] That could not be said of Sir John Popham. According to the author of the Lives of the Lord Chief Justices, Popham “left behind the greatest estate that had ever been amassed by any lawyer. [49] The records do not permit a comparison, but it seems likely that Ellesmere outdid his mentor in this, as in most other, respects.

Ellesmere, Coke and Bacon each commenced life without any financial advantage. All developed lucrative practices at the bar. However, then as now, personal exertion was no way to acquire capital. An office was capital. It could be exploited directly, within uncertain bounds, to create a flow of income. When King James assumed the throne, there were the customary coronation pardons, available on the Attorney’s advice, for which a fee of five pounds each could be charged. On one estimate Coke made 100,000 pounds that year. [50] One can safely assume that the succession was worth more to Ellesmere. It was worth nothing to Bacon.

Ellesmere led a full public life, albeit one pursued with a keen understanding of the independence which considerable wealth brought. As one contemporary said of him, in an age when everything important was executed under seal and everything of public importance was executed under the Great Seal, of which he was the custodian for twenty one years, Ellesmere could not live without “the smell of yellow wax”. [51] The fees he could charge for affixing the seal were, no doubt, partly the cause of this addiction.

Each of my three subjects commenced in the office of Solicitor General. Ellesmere’s case can serve as an example of what was then regarded as proper conduct. The Solicitor General had a right of private practice. The Earl of Derby retained him as “standing counsel” and paid him with an appointment as Master of Game at one of his estates with a right to one buck, one doe and five marks a year. Lord Paget conferred on Ellesmere the right to hunt and take game at a number of estates and took pains to instruct his keepers that “he be very well served.” [52]


When Bacon missed out on both the Attorney’s and Solicitor’s office, he naturally turned to the other traditional way of establishing wealth: marry a wealthy widow. One soon became available: Lady Elizabeth Hatton, young, intelligent, extremely well connected as a daughter of Burghley’s eldest son, and the owner of a number of major properties, including Ely House, formerly the London residence of the bishop of Ely until Elizabeth forced him to give it to her favourite Sir Christopher Hatton, whose nephew and heir had married the Lady Elizabeth.

Bacon raised the matter with his patron Essex – “touching a fortune I was in thought to attempt” [53], as he delicately put it – asking him to intercede with Lady Hatton’s parents. Essex did so in glowing terms – saying this is whom he would chose if he had a daughter of his own [54] – but to no avail. In November 1598 Lady Hatton married one of the most talented members of the Cecil faction, in need of consolidation because Lord Burghley had died that August. Indeed the match was arranged with Sir Robert Cecil at Burghley’s state funeral. [55]


Of all people, from Bacon’s perspective, Lady Hatton married the then recently widowed Sir Edward Coke. He had acquired a fortune of 30,000 pounds with his first wife, [56] whom he had only buried in July. Coke had the cash flow to support the asset rich but cash poor estate. The widow’s father and powerful uncle found the match politically convenient.

The haste of the match was reflected in a tinge of illegality. The marriage occurred without a posting of banns or a license and in a private house – all in defiance of the Archbishop of Canterbury’s rules. Archbishop Whitgift had been Coke’s tutor at Cambridge, as he had been Bacon’s and Essex’s. Nevertheless, Coke was prosecuted in the Archbishop’s court. He had to plead ignorance of ecclesiastical law, no doubt to the delight of the clergy, and ask forgiveness for his sins. His ignorance was duly recorded in the dispensing order filed at Lambeth Palace. [57] They were married again at St Andrew’s church, with all due formality observed.

Lady Hatton, as she insisted on being called for the remainder of her life, proved to be as combative as Coke. Macaulay would describe her as having “eccentric manners and a violent temper (which) made her a disgrace and a torment to her connections”. [58] This sounds like a jaundiced Victorian view of a high spirited woman. Macaulay was unremitting:
Give me opinionated historical narrative like this any day. Objectivity is so boring.

Financially, Coke was now well established. As one jealous observer commented, within a decade he had moved from being worth 100 pounds a year to 14,000 pounds per year. [60]


Bacon was still without capital. Burghley had secured for him the reversion of a registry office in the Star Chamber, but the life tenant was proving stubbornly healthy. Bacon, incapable of thrift, was always borrowing money, convinced that one day his station would equal his promise. His debts mounted. In the summer of 1597 he was even arrested for debt when leaving the Tower. He wrote to Ellesmere asking him to intervene on his behalf. [61]


In one of their few recorded direct clashes Coke, appearing as Attorney against Bacon in the Court of Exchequer, later gloatingly referred to Bacon’s imprisonment for debt. “I said”, Bacon complained to Cecil in writing “he was at fault for he hunted on an old scent”.

Coke had been quite splenetic:
His day would come.

It was some years before Bacon married. “I have found an alderman’s daughter,” he wrote to Cecil, “ a handsome maiden, to my liking”, asking him to get him a knighthood, which would help convince the father. [63] With a dowry of 220 pounds a year, the prospect was not in the class of Lady Hatton. Furthermore, she was 11 years old at the time. They married in 1606, when Bacon was 45 and she was 14. It was, at least and unlike Coke’s, an uneventful union.

TORTURE

Coke’s term of office as Attorney under Elizabeth was a period of considerable social tension. One harvest after another failed. The war with Spain was a constant drain on resources. The state flirted with national bankruptcy. Domestic religious divisions, from Catholics to Puritans, always threatened to erupt. There was much prosecuting to do. There was a wide range of royal prerogatives to protect. There were numerous royal grants and commissions to be drafted.

Coke’s commitment to whatever he was doing was always total. He never displayed any capacity for introspection. His own motives never seemed to interest, let alone concern, him. There was never a manifestation of self doubt. As his career moved from representing one set of institutional imperatives to another, he embraced each with the same combative enthusiasm, bordering on the self-righteous, and devoted to each the same relentless energy, learning and mental acuity. Coke was always an advocate. His was one of those minds that was sharpened by being narrowed. He expressed contempt for poetry [64] and never displayed the breadth of intellectual interests of Ellesmere or Bacon.

As a prosecutor he was aggressive to the point of vitriol, with an arrogant and hectoring style, often unproductive, that deployed a violent rhetoric – describing an accused as “the vilest viper”, as a “monster”, as a “vile and execrable traitor”. Later, Ellesmere would privately call him “foolish and frantic”. [65] In his monumental history of the English criminal law, Sir James Fitzjames Stephen described him as one of the most brutal prosecutors in English history. [66]


However, the protection of the state was the principal task of the Attorney General and Coke’s long term of office coincided with real threats to the state. In the view of the elite, internal subversion was as significant as external invasion. They believed that the principal source of internal subversion came from Catholic recusants and, especially, from the Jesuits who, for almost two decades had secretly come as missionaries for their faith or, from the perspective of the domestic elite, had infiltrated as agents of the Pope and of Spain. Bacon said of the Jesuit education system, invoking a classical author: “They are so good I wish they were on our side.” [67].


Although there were recusants who simply wished to be left alone to practice their religion and advocated some form of tolerance, this was not the dominant belief of the era. The significance of religion was such that it formed a core element of national identity. In the French aphorism of the time – un roi, un loi, un foi, one king, one law, one faith. The attempt within France to tolerate a Huguenot minority had proven a failure.

In what became known as the Archpriest Controversy, the traditionalist English Catholic priests appealed to Rome, thereby becoming known to historians as the Appellants, against the covert activities and emerging dominance of the Jesuits, whom they blamed for the stringency of their repression. [68] The Appellants probably represented a majority of English Catholics at the time, but in the white heat of the militant Counter Reformation, with the Jesuits in the front lines, their appeals to Rome were futile. In an event, their hope that they could achieve a level of toleration, which would enable them to practice their faith in peace was, in the spirit of that time on both sides, impossible of achievement. It would take over a hundred years of warfare and millions of lives, to establish the virtues of coexistence.

To the English political elite, the perceived, and in part real, threat was from those whose religious belief was the most fervent. Amongst such, as is often the case with intense religious conviction, there were those who were prepared to resort to violence. The prevailing opinion was that the Jesuits posed the greatest danger, second only to invasion by Spain. They were seen, with reason in the case of their leaders in exile but not in the case of the missionaries themselves, as the prime instigators of plots against the life of the Queen and the promotion of a Catholic successor, first Mary of Scots and then the Infanta of Spain.

Coke interrogated and prosecuted numerous Catholic and some Puritan suspects. Perhaps most revealing is the interrogation of Father John Gerard about which, because Gerard was one of the few to escape from the Tower and lived to write an autobiography, we have basically consistent versions from both sides.

A cultivated and well educated English gentlemen who, as a Jesuit priest, had returned to a life of covert pastoral work requiring movement from one recusant home and priest hole to another, Gerard had invented an original riposte to the ultimate interrogator’s invitation to self incrimination – known at the time as “The Bloody Question”, a literally accurate description.

Gerard replied, refusing the invitation to chose between his body and his soul:
In April 1597, Coke’s first interrogation of Gerard, who had been active amongst the recusants of Norfolk, many of whom Coke knew from his youth, proceeded with a tone of intellectual respect that was far removed from his courtroom histrionics.

From whom had he recently received letters from abroad? “If I have ever received any letters from abroad at any time”, Gerard replied, “they have nothing to do with politics. They were concerned merely with the financial assistance of Catholics living on the Continent”.

“You say” Coke proceeded, “you have no wish to obstruct the Government. Tell us, then, where Father Garnett is”, referring to the Jesuit order’s Superior for the English Province. “He is an enemy of the state.”

“He is not an enemy of the State,” Gerard retorted. “But I don’t know where he lives, and if I did, I would not tell you.” [70]


Coke then produced a warrant for Gerard’s interrogation under torture which named the Lieutenant of the Tower, Coke and his Solicitor General as interrogators. Bacon was also present.

Gerard recalled the procedure at the Tower in his autobiography:
After refusing to confess again, he was handcuffed and hung from the manacles, as the English called the Italian strappado, suspended by his wrists for hours, both that day and the next. The questions were not answered.

Coke returned the next month to conduct another interrogation in a form to be tendered at trial. Gerard readily admitted that he was a Jesuit priest and that his mission was to convert Englishmen from the church established by English law. When asked to affirm whether he had ever met certain named individuals, Gerard adopted the same answering technique: he did not know them and even if he did he would not acknowledge names.

Coke engaged him in a philosophical debate about the form of Gerard’s answers, known at the time as the Jesuit doctrine of “equivocation” – answering in so evasive a way as not to constitute an actual lie. Gerard denied Coke’s assertion that such answers were tantamount to lies and that equivocation was a “most wicked and horrible doctrine”. Gerard asserted that equivocation, did no more than “withhold the truth in cases where the questioned party was not bound to reveal it”, just as an accused in a criminal trial was entitled to plead not guilty. [72]


When, perhaps going further than required, Gerard accepted that “A man cannot deny a crime if he is guilty and lawfully interrogated”, Coke pounced. “What do you mean be lawful interrogation?” Gerard answered that the questioner must have authority to ask. The philosophical discussion had come back to the critical political issue: Was Elizabeth’s government legitimate or not. [73] On this basis, equivocation was shown to be ineffective. It had what could be legitimately regarded as a basis in treason.

Much later, without reference to his own prior history, Coke asserted in the third volume of his posthumously published Institutes: “There is no law to warrant tortures in this land”. He invoked Sir John Fortescue as authority. Fortescue was correct when he wrote in 1470 that England, unlike the Continent, had no tradition of torture. Fortescue was resisting the advocates of the adoption of civil law, a system with a firm base in England: in the ecclesiastical courts, in Chancery, at the Court of Requests and in the academy at Oxford and Cambridge. [74] The Duke of Exeter, who sought to have the Continental civil law adopted in England at that time, was Constable of the Tower and introduced the rack to England, which instrument was thereafter known in English slang as “the Duke of Exeter’s daughter”. [75]


After the Lateran Council of 1215 abolished trial by ordeal, in general terms, England turned to the jury and Europe turned to torture. The Continental tradition, which persisted until the eighteenth century, emerged from the Roman law of proof, which rejected circumstantial evidence as a basis for conviction, requiring either a confession or two eyewitnesses. Such proof, it had come to be accepted, was unlikely to be obtained without torture. As a result torture had become the common mode of investigation in most of Europe, even for routine crime. In England torture was never systemic, but exceptional.

Between 1540 and 1640, detailed records of the use of torture were kept. It was used for public offences such as treason and sedition, which included heresy, although sometimes for lesser offences. Torture only occurred pursuant to a warrant, issued in the name of the monarch and often under royal signature, specifying the subject, the alleged offence, the permissible mode of torture and the identity of the interrogators. There are 81 known warrants, a handful under Henry VIII and Edward VI, more under Mary, and only a few in the early years of Elizabeth’s reign. Later, Burghley would publish a defence of the use of torture, saying that it only came into use after the Pope had excommunicated Elizabeth in 1570 and the record generally supports him. Of the 81 recorded cases 53 occurred in Elizabeth’s reign.

It appears that torture was accepted as an exercise of the prerogative. Although it was not lawful as such at common law, as the House of Lords has recently reminded us, [76] the prerogative was supported by that law and, accordingly condoned, if it did not permit, the use of torture. President Bush would understand this.

Coke was, at best, disingenuous when he failed to refer to his own direct involvement in torture when later declaring it was not lawful. His name appears on seven warrants as Solicitor or Attorney, applying torture to both Catholics and Puritans. Ellesmere’s name appears on four as Solicitor General. Bacon’s name appears on four warrants before he held any office and on one as Attorney. This was what a prosecutor did in what was still an inquisitorial system of criminal procedure. When Macaulay [77], and later Lord Denning [78], no doubt reared on Macaulay’s Essays, attacked Bacon for his involvement in torture, they were influenced by Coke’s distortion of the historical record.

THE LORD KEEPER

In April 1597, when Lord Keeper Puckering succumbed to his obesity, Elizabeth had no hesitation about his successor. On this occasion, factional influence was irrelevant. Within three days she delivered the Great Seal in its silken purse to Ellesmere who would hold it as Lord Keeper and, after being enobled, as Lord Chancellor for twenty one years. Under his guidance, as reinforced by his successor Francis Bacon, the Court of Chancery was preserved and reformed and the doctrines of equity protected and developed in a manner parallel to and, not least in New South Wales, of an influence similar to that which Sir Edward Coke would have on the common law.

Ellesmere’s appointment was universally acclaimed. Anthony Bacon wrote to a friend in Venice at the time:

Born a bastard, Ellesmere was raised by foster parents. His natural talent was recognised early and he received a good education attending Brasenose College in the last years of Queen Mary, later becoming Chancellor of Oxford. He pursued a successful career at the bar as a member of Lincolns Inn, including a period in its associated Inn, which specialised in Chancery. Even before his call to the bar, he published a treatise on statutory interpretation in 1865, one of the first ever written. In this tract, rejecting the ideology of common lawyers like Coke, Ellesmere asserted the priority of the enactments of the sovereign Parliament. He covered many of the perennial issues of this area of the law: such as a focus on the mischief to be remedied (twenty years before Heydon’s case), the use of preambles, parliamentary debates and subsequent application by the courts. In this, and other respects, his scholarship was formidable and the publication, no doubt then as now, was a polite form of touting for work, in his case successfully.

Throughout his career he displayed intellect and energy of an extraordinary order, together with the best English country gentleman virtues: earnest practicality, tough mindedness, uncomplicated dedication to duty, preference for the spartan rural life and dislike of pomp, rich food and excessive drinking, not to mention novelties like tobacco. One prominent lady later complained;” Your lord keepeth not the table nor the part honourable and fit for your place.” [80]


Early in life he was a Catholic and retained a covert affiliation into maturity, being twice suspended from Lincolns Inn for this offence. His first wife remained a recusant until her death in the Armada year, 1588. Gerard said of him in his autobiography:
Indeed he did.

Ellesmere’s entry to government occurred when Elizabeth, after hearing reports of one of his victories at the bar against her interests, declared: “He shall never plead against the Crown again” [82]. He became Solicitor General when Sir John Popham moved from that office to become Attorney General in 1581. Ellesmere’s first brief for the Crown, as Popham’s junior, was in the trial, including the interrogation under torture, of Edmund Campion.

Popham and Ellesmere prosecuted all of the large number of treason trials during this troubled and dangerous period. His style as a prosecutor is well displayed in his riposte to one of the accused in the Babington conspiracy, the amateurish attempt on the life of Elizabeth which finally implicated Mary of Scots and led to her demise. When the accused said that a Catholic priest called Ballard, alleged to be one of the instigators of the conspiracy, did not arrive in disguise to instigate treason, Ellesmere, always on top of his brief, responded:

As the master of the detail in the trial of Mary Queen of Scots, Ellesmere, who had appeared as Popham’s junior, was asked by Burghley to write the official report of the course of the trial, calling him the lawyer “best acquainted with the matters” [84]


In 1592 Ellesmere succeeded Popham as Attorney when the latter was appointed Lord Chief Justice, probably the only former highwayman ever to fill that post. Popham atoned for his early life of alcohol, gambling and crime by the merciless enforcement of the criminal law over the next fifteen years. [85] In 1594 Ellesmere was promoted to the newly vacant office of Master of the Rolls and in 1596 became a Privy Councillor.

Upon his appointment as Lord Keeper, Ellesmere’s influence and reputation for competence was further manifest in the fact that, for the first time, the post of Master of the Rolls which served as a deputy to the Lord Keeper or Lord Chancellor, was not to be filled by another. Ellesmere kept the office and its revenues.

He had already stamped himself as a reformer as Master of the Rolls, seeking to control the venal excesses of the Masters in Chancery. As Lord Keeper he manifested the same intent when he spoke for the Queen in the House of Lords although, not yet a peer, he could not participate in debate. At the opening of the Parliament of 1597-1598, after explaining how submission to the Queen should proceed with an anatomically challenged metaphor – “on the knees of our hearts” – Ellesmere urged the Parliament: “To enter into due consideration of the laws and where you find superfluity to prune, where defect to supply and where ambiguity to explain, that they not be burthensome but profitable to the commonwealth”. [86]


Throughout his official career [87] Ellesmere was concerned with the substantial increase in the number of lawyers and the explosion in litigation. He sought to control court costs and lawyers fees. He advocated what we would call mediation. He objected to institutional turf wars amongst the courts and to the legal fictions this spawned. He reorganised the operations of the Chancery court and supervised the prolixity and excessive conduct of the legal profession. He published detailed schedules of the fees that Chancery masters and clerks could charge, leading to protests from the incumbents who had no doubt paid well for their appointment. [88] Even Bacon, trying to preserve the value of his reversion of the post at the Star Chamber, wrote to complain about such reforms.

Ellesmere had one practitioner, responsible for an unnecessarily verbose replication at a time when the lawyers and the registry clerks were paid by the word, paraded around Westminster Hall with the document shoved over his head down to his chin. [89] Today we would have to order him pushed around Queens Square on a trolley. On another occasion, when asked to execute an unacceptable petition, Ellesmere declared: “What, you would have my hand to this now? Nay, you shall have both my hands to it.” [90] And tore it up. He once referred to lawyers in open court as the “caterpillars of the commonwealth.” [91]


There were, however, limits to his reforming zeal. When Bacon succeeded him as Lord Chancellor he said that he inherited about 3000 cases, some of them 20 years old. [92]


Ellesmere was engaged in continual tensions with the common law judges. Their status was affected by their subjection to injunctions from Chancery. However, this involved more than just status. As I have noted above, the number and nature of suits in a court determined the income of the judges. This was a tension that would be resolved in a dramatic manner during the reign of James, when Coke and Ellesmere engaged in a jurisdictional conflict that proved to be final.

ESSEX REBELLION

Essex was a popular military hero, obsessed with his breeding, absolutely dedicated to a code of honour, convinced that he knew what was right and whose attempt to pursue a policy inconsistent with that of his government had been thwarted. In all this he was like Coriolanus, to whom the earl, no doubt to Shakespeare’s knowledge, was often compared. He would also follow Coriolanus into open treason.

In 1599, Essex was finally undone in Ireland, that graveyard of reputations, as it has often been described. The same had occurred to Essex’s own father who, after a campaign of singular butchery, had died in Ireland. While Essex was in Ireland his paranoia about Cecil was stoked by a further rebuff. Burghley had died and left vacant the post of Master of Wards, an office which supervised noble estates that were held by minors. This was the key to Burghley’s fortune. Although the salary was only 133 pounds a year, the profits were very large. For arranging eleven grants of wardship, for which the Crown received 906 pounds, as duly revealed in the official record, Burghley took 3301 pounds, as set out on an attached piece of paper, which he had annotated: “This note to be burned”. [93]
Appointment as Master would have solved Essex’s perennial financial difficulty. A contemporary historian dated Essex’s conversion to sedition to Cecil’s appointment as Master. [94]


Commanding the largest expeditionary force that Elizabeth had ever deployed, Essex was comprehensively outmanoeuvred militarily and negotiated a truce with Hugh O’Neill, second Earl of Tyrone and paramount chief of the clans. The truce would have left the Irish in control of Ireland, in complete defiance of his instructions. Elizabeth was furious and told him so. “If we had meant that Ireland be abandoned”, she fulminated, “ then it was superfluous to have sent over a personage such as yourself.” [95]


Essex abandoned his command and rushed back to England in an effort to restore his position by that direct appeal to Elizabeth that had worked for him so often in the past. No one knew he was coming until, on 28 September at 10 am, he burst unannounced into the Queen’s bedroom at Nonsuch Palace. Elizabeth had not been prepared for the day. Wigless, almost bald, with a few tufts of grey hair, without the cakes of makeup to hide her wrinkled, aging skin and not having placed, as was her habit before meeting others, a perfumed handkerchief into her mouth to quash the smell of her rotten teeth, the vain monarch, who still wore low cut dresses and whose court ritual demanded all males maintain a bizarre charade of expressions of romantic love for her, could not accept such conduct from her former favourite.

However, her main reaction was probably fear. Throughout her long reign Elizabeth had always understood that the male aristocracy regarded a female ruler as an unnatural phenomenon and that they could, as their forebears had done so often, engineer a successful rebellion.

At first she comforted the tired and clearly distraught earl, but as soon as she was satisfied that he had travelled with only a few retainers and that his army was still in Ireland, Elizabeth’s attitude changed to fury. She turned on one of his accompanying officers, her own godson, Sir John Harrington, one of the many whom Essex had knighted in Ireland: “What, did the fool bring you too? ... By God’s son I am no Queen, that man is above me.” [96].


Essex was placed under house arrest. He was to be kept in York House on the Strand, then Ellesmere’s residence, but formerly Bacon’s birthplace and childhood London home. Suffering from ill health, including dysentery, called at the time “the Irish looseness”, [97] Essex was eventually allowed to return under house arrest to his own home, Essex House.

After several months of debate in the Council about what to do, Elizabeth was talked out of taking the hard line she preferred. Essex was brought before a specially convened commission of eighteen privy councillors, earls and judges assembled at York House with an elite audience of some two hundred. The formality of proceedings in Star Chamber had not been invoked. The suspicion that his deal with Tyrone harboured treason could not be proven. Neither incompetence nor insubordination was a crime and Essex retained a high measure of public and elite support. He was accused of derelictions of duty: ignoring orders, creating an unseemly number of new knights, negotiating a truce with the enemy and desertion of his command.

Coke addressed the Commission, and warming to his brief but probably contrary to his instructions, suggested that the earl had been disloyal. He was quickly corrected from the bench. There was no such charge. [98]


The Commissioners found Essex guilty as charged. Ellesmere, then Lord Keeper, pointed out, as they were not sitting in the Star Chamber, the commissioners could not impose imprisonment or a fine. They recommended he be stripped of his offices and confined to Essex House at the Queen’s pleasure.

Elizabeth enforced the recommendations and went further. Elizabeth, who had allowed the number of knights to about halve during her reign, de-knighted those Essex had created in Ireland, requiring dozens of men to go home and tell their wives that they could no longer be called “Lady”. Elizabeth also stripped Essex of his source of financial independence, her grant to him of a monopoly on the importation of sweet wine. This was devastating. Essex was virtually destitute.

As his string of obsequious entreaties to Elizabeth remained unanswered, the disgraced earl was plunged into a corrosive melancholy, driven by wounded pride and desperation, not least financial. His sense of self was derived from a noble lineage of fifteen generations in the male line descended from a cousin of William the Conqueror, or so the records suggested. His female line apparently had higher claims to nobility, but he didn’t emphasise it. [99] His personal identity was a combination of his commitment to a code of chivalric honour, a sense of destiny for leadership, the pursuit of the noble virtue of altruistic public service and an absolute conviction of his own integrity. Essex had no way of coping with failure. He turned his energies to rebellion and, probably without intending to harm Elizabeth, to replace the government dominated by Robert Cecil.

The frequency with which significant numbers of the well do to in 16th century England manifested irrational conduct including erratic mood swings, infantile irritability, abandonment of self control and paranoia – which Ben Johnson called “the black poison of suspect” – has led historians to seek medical explanations. One suggests that a social wide vitamin C deficiency caused scurvy, which has mental as well as physical effects, [100] another suggests that clinical paranoia was an endemic disease amongst Tudor traitors. [101]


Essex’s paranoia was directed against Cecil and Elizabeth’s other Councillors, who had come to positions of influence without the inheritance of the blood, which he and his aristocratic supporters believed conferred upon them a natural talent for leadership and a natural right to dominance. As the number of parvenus with new wealth and power expanded, those whose expectations were disappointed developed a sense of being under siege. [102]


The marginalisation of men of honour was what such men expected in a nation ruled by a woman, where the so-called male virtues of courage, frankness and constancy of purpose were not fully appreciated. Essex once told the French ambassador, that the failings of the English governmental decision making – which he identified as delay, inconstancy, timidity and an inability to pursue a grand plan – arose: “Chiefly from the sex of the Queen.” [103] Essex had a private nickname for Elizabeth. He called her Juno, after the Roman goddess who attempted to frustrate the heroic exploits of the great Trojan hero Aeneas, said to be the ancestor of the first Roman emperors, and with whom Essex clearly identified. [104]


Indeed, as Lytton Strachey points out, Elizabeth’s triumph was based on the most unheroic of policies:
The theme of “evil advisors”, who had undermined the reputation of those whom a leader has come to ignore, is one of the traditions of court politics. In Essex’s case, the paranoia does show signs of being neurotic. It must, however, be remembered that even paranoids have enemies. Cecil must have regarded him as a threat to his own power and wealth, although he always acted on the basis that he would have to deal with Essex in the long term.

Essex House became a rallying point for an unseemly gaggle of disaffected aristocrats, disappointed place-seekers, unemployed soldiers and assorted malcontents, described by one historian as “the idiot fringe of the indebted gentry”. [106] As Essex’s overtures for support to the army in Ireland and to James in Scotland had proven fruitless, this desperate band concocted a bizarre plan to somehow create a disturbance in London which would enable the group to despatch Elizabeth’s guards and advisors and have her accept a new government, with Essex as Lord Protector. As one historian has described it, this was “a selfish and irresponsible conspiracy that stood no chance.”[107]


On February 7 1601 Essex and a number of his supporters, no doubt attempting to curry favour with the London crowd, attended the Globe theatre where they had commissioned Shakespeare’s theatre company to put on a special performance of Richard II. The actors at first protested that the play was “old and long out of use”, having been first performed in 1595. Shakespeare himself may well have still been embarrassed about the line in Henry V, first staged when Essex was in Ireland, which predicted victory in the reference to a general returning from Ireland “with rebellion broached upon his sword”.

Richard II, a play about an ineffectual, self-indulgent monarch, more solicitous of his favourites than of the national interest, inclined to an absolutist theory of monarchy and who was deposed by an assertive aristocrat, contained a suspect message for Elizabeth. The author of a book about Richard II and Henry IV, which he had dedicated to Essex in February 1599, and which Elizabeth had branded a “seditious prelude”, [108] was still imprisoned in the Tower. [109] When Bacon was asked by the Queen whether that book contained treason, he had replied he could find only felonies. The author, he said, was a thief, having stolen many lines from Tacitus. [110] The idea of Essex as Bolingbroke was obvious, perhaps it appealed to his disaffected entourage. However, Essex was no Bolingbroke. He was a Hotspur.

Storming into the Queen’s bedchamber was only the most recent of a litany of petulant conduct by Essex. He had often responded to Elizabeth’s rejection of his proposals with tantrums and sulking. At a Privy Council meeting, when he felt his personal honour had been affronted by the Queen, when she boxed him around the ears, Essex had done the unpardonable: he reached for his sword. Seeking to restore him to favour after that incident and urging him to return from his self imposed exile from court, Ellesmere, who was not a member of either faction and had always been friendly towards Essex, had said: ”The difficulty my good Lord, is to conquer yourself”. He received the insolent, self righteous reply; “What cannot princes err? Cannot subjects receive wrong?” [111] These were seditious thoughts, uttered just before Essex was recalled for military duty in Ireland. Elizabeth knew of the exchange and the words were not forgotten. As one historian has put it: For some months Essex had been talking about a coup. Aware that Elizabeth had become aware of the activity around him, he advanced his plans and on 8 February about three hundred of his supporters gathered at Essex House. When Popham, Ellesmere and two Councillors arrived to inquire what was going on they were told that he feared he was to be murdered. They suggested he attend on Her Majesty, guaranteeing his safe conduct. It was too late. Amidst cries from his supporters: ”Kill them! Kill them!”, Essex ordered the councillors be detained.

The amateurish rebellion, commencing with no more than a lightly armed procession, received no support in the streets of London, upon which the earl had staked his all on no firmer basis than his popularity. After one brief but bloody skirmish, it was quickly subdued. Essex and his key supporters were imprisoned before midnight.

This was the last time in English history that the feudal aristocracy would attempt to overthrow a monarch. This long tradition, often enough successful and almost always involving considerable bloodshed, ended in farce – no military strategy, just pathetic bravado and a lot of shouting in the streets about plots to kill Essex and to sell out the succession to Spain. Only three dead and half a dozen wounded.

It had really been all down hill since the introduction, just a decade or two before, of the lethal but somewhat effete rapier – the first fencing school was set up in Blackfriars in 1576. The rapier led to matters of honour being determined by duel in one to one combat, rather than in the traditional English way of a mass assault on one’s enemies with a violent mob of retainers wielding broad swords. Unlike in France, group duels never became fashionable. Standards really did slip when, under the code of the duel, a mere gentleman could challenge a nobleman to meet on equal terms. [113] Aristocratic rebellion had become technologically obsolete.

After burning incriminating documents, when preparing to surrender, Essex had turned to Sir Robert Sidney, younger brother of his dead idol Phillip, and whom he had unsuccessfully urged on Elizabeth as Lord Warden of the Cinque Ports, then still a military posting. [114] Essex called on their mutual martial calling, probably realising that he might be able to explain everything, except the day’s bloodshed:
Perhaps Essex remembered the Council meeting when, in response to Essex’s advocacy of war, Burghley had passed him a copy of Psalm 55 with his finger on verse 24: [116]


“Men of blood and deceit shall not live out half their days.”

At the end, Essex revealed the innate snobbery and arrogance that had brought about his destruction, when he said to Sidney:
He was especially referring to Cecil: hunchback, son of a mere gentlemen and, to that time, no more than a knight. As it so often does, self righteousness had transmogrified into self pity.

Essex would also invoke the law of nature at his trial. Nature, he believed, required him to act in accordance with the instincts of his blood, including a right to lead, to dominate and to act in accordance with a traditional code of honour. Such codes of honour were recognised, as part of the natural law, by the civil law applicable on the Continent. Until the French Revolution such codes were used to justify numerous abuses by nobles. No such code was recognised by the common law.

Later, Sir John Harrington, the earl’s associate who had recognised the madness of the Essex House environment and stayed away, and who is best known as the inventor of the water closet, but much admired by contemporaries for his epigrams, expressed the inevitable denouement pithily:

“Treason doth never prosper, what’s the reason?
For if it prosper, none dare call it treason.”

Essex had failed to prosper. As Macaulay later observed: “(Essex) had neither the virtues nor the vices that enable men to retain greatness long”. [118]


ESSEX TRIAL

On 19 February 1601 Essex, dressed in black, standing defiantly with his closest companion, the long haired dilettante Earl of Southampton, best known as the patron of Shakespeare, was put on trial for treason in Westminster Hall, before their peers – literally – Lord Buckhurst as Lord Steward of England presiding, twenty five earls, viscounts and barons, who sat with their legal advisors, the judges of all three common law courts, Common Pleas, Exchequer and Kings Bench – Elizabeth never permitted the appellation “Queens Bench”. A number of the peers had longstanding grudges against the accused, indeed one had tried to kill Southampton a few weeks before. Knowing the answer, but appealing to the selected public gallery and, no doubt, to the crowd of Londoners who thronged the approaches to Westminster that day, Essex asked whether challenges for bias were permitted. No, replied Popham and Coke cited a precedent in support. Both earls pleaded not guilty.

A criminal trial of the era – before the emergence of the adversary system – consisted of a series of confrontations: declamations by the prosecutors, presentation of the evidence, of which the accused had no prior notice, and calling upon the unrepresented accused to answer the evidence. By the time a prosecution was launched, often after consultation with the judges, a trial was generally a public inquiry where the judges assumed the guilt of the accused. In the entire course of the sixteenth century, only one nobleman who stood trial was acquitted, for which unexpected indulgence the jury of twelve had been imprisoned. [119] An accused was not permitted to call witnesses.

At the Essex trial, the brief formal opening for the Crown by the Queen’s Serjeant compared Essex to Catiline, whose similarly futile rebellion against the Roman Republic was, according to Cicero and Seneca, also the work of a band of indebted aristocrats and assorted malcontents. Coke, as Attorney, bore the principal burden for the prosecution. He commenced with an outline of his philosophy of the common law, to which he would remain consistent throughout his career:
Coke summarised the relevant law;
Coke’s long address now appears tedious, full of classical allusions and historical examples, but his summary of the evidence would have come as a surprise to everyone, except to those of the judges privy to the investigations. A number of detailed confessions by some of the earls’ collaborators had been obtained the day or two before the trial, without the use of torture, Coke was careful to emphasise. The conspirators, Coke alleged, intended, by force of arms, to take the City of London, the Tower, the royal palace and the royal person. The ultimate objective, he said, was clear: “Robert, Earl of Essex, had thought to be King of England, Robert the First. Let him rather be declared, of his race and blood, Robert the Last, attainted to posterity and all his generation.” [122]


Addressing a jury of his peers, Essex was confident, even impudent bordering on the supercilious: “Mr Attorney”, he said, “playeth the orator and abuseth your Lordship’s ears with slanders against us. These are the fashions of orators in corrupt states and such rhetoric is the trade and talent of those who value themselves upon their skill in pleading innocent men out of their lives.” [123]


The witnesses were called, each to be challenged by Essex in turn, but without notice of what they would say. Popham and Ellesmere acting as both legal advisors and witnesses, testified about their imprisonment at Essex House. It was for their protection, Essex claimed, unconvincingly. Other witnesses gave evidence of conspiratorial meetings over a period of some months, where the details of the strategy had been worked out. There was talk, Essex said, with nothing decided. Other witnesses testified to the burning of letters and documents at Essex House on the day of the rebellion, when its failure was clear, particularly the contents of a black bag which Essex always kept on his person and which contained his closest secrets, particularly correspondence with James in Scotland. “A black bag, meet for so black a cause!” Coke had melodramatically exclaimed in his opening. [124]


The principal defence emerged in the course of examination of witnesses. This was action taken in self defence against threats to Essex from the cabal of advisors that had misled Elizabeth, particularly Cecil and Raleigh. This was what he had meant by his reference to “corrupt states”. He alleged that Raleigh had threatened to kill him, but the person who Essex said had told him that did not confirm Essex’s version of their conversation and Raleigh convincingly denied it.

Cecil, Essex alleged, was in league with Spain and had agreed to support the claims of the Infanta to the English throne. Appearing from behind a tapestry, where he had been covertly observing the proceedings as a mere knight, Cecil, the leading “base upstart”, denied the allegation, also convincingly, accusing Essex of having “ a wolf’s head in a sheep’s garment”, probably the origin of that cliché. He asked that Essex’s uncle, who Southampton said was the source of the story, be brought to testify, without being told what Essex had alleged Cecil to have said. He came and gave a version quite contrary to that of Essex. His conspiracy had collapsed.

The events of the day – of armed men who gathered together and attempted to incite others to support them, about which there were numerous witnesses – really spoke for themselves. It was all an attempt to get access to the Queen, Essex claimed, for the sole purpose of pleading his case. Could that be treason if there was no actual intention to harm the Queen, the peers asked the judges. Yes it could, was the reply. “Our law “, Coke submitted, “judgeth the intent by the overt act”. “Well”, the earl replied, “plead you law and we will plead conscience”. [125]


Coke also said: “To surprise the court or take the Tower by way of defence from private enemies is plain treason”. [126]


Coke had a dramatic exchange with Southampton:
Bacon, who appeared as part of the prosecution team, submitted that treason had been committed on the earl’s own version. If he only intended to be “a suppliant to her Majesty”, why were his “petitions to be presented by armed petitioners?” By itself this interfered with the Queen’s liberty. Bacon continued “… to take secret counsel, to execute it, to run together in numbers armed with weapons … Will any simple man take this to be less than treason”. [128]


Perhaps nothing did more damage to Bacon’s reputation, at the time and over the subsequent centuries, than the fact that he turned on his patron at this trial. Ellesmere, who was also a longstanding supporter of Essex, although never in need of any favours from him, suffered no such criticism. Nor did Essex regard Bacon as one of his inner circle. Bacon, who had given Essex much advice over the years was never consulted about the high level intrigue which Essex conducted with other nobles and with James. A degree of distance was always manifest. When Bacon had published the first edition of his Essays in 1597, he dedicated it to his brother not, as was the custom, to a sole patron, because he didn’t have one. Bacon never cut his ties with the Cecils. He could never have become merely a member of a faction and didn’t. His critics, like Macaulay, who describe Bacon and Essex as “friends”, are just preparing the way for slander.

I can see no reason why Bacon should have felt much gratitude. Other than bountiful displays of support, Essex had never actually achieved anything for Bacon. [129] His support for Bacon was not an act of altruism, nor merely a display of personal loyalty. It was, at least in part, the self- interested conduct of a patron seeking to build up his own political power base and using Bacon’s learning and intelligence for his own advantage. Essex never gave any indication that he believed Bacon had let him down. This is characterised as an indication of his nobility, by those of a romantic bent overcome by his image of heroic chivalry. It was, more likely, an honest acceptance of the conduct expected of a Renaissance courtier. Not even a timeless intellectual hero like Bacon can be entirely removed from his own time.

It is difficult to see what else Bacon could have done. Essex had never consulted him about his ludicrous scheme. It may have been opportunism to appear for the Crown at the earlier inquiry at York House. By the time of the Guildhall trial, however, Bacon was entirely justified in acting on the basis that his duty to the state prevailed over personal loyalty, such as it was. It borders on the naive to use these events as proof that Bacon had a “coldness of heart and meanness of spirit” – as Macaulay was to do [130], on the basis of a caricatured version of Bacon’s conduct at the trial, probably explicable by the fact that Macaulay was writing in Calcutta without access to most of the relevant material. [131]


In riposte to Bacon’s submissions against him, Essex dramatically exclaimed: “I call forth Mr Bacon against Mr Bacon”. He then revealed how Bacon, from whom he had sought advice after the York House proceedings, notwithstanding Bacon’s appearance for the Crown on that occasion, had drafted two letters: one to be sent by Essex to Anthony Bacon and the other a reply from Anthony. This contrived correspondence contained assertions consistent with Essex’s claim that he was primarily concerned with the machinations of Cecil and others against himself. This exchange between intimates was intended to be intercepted by Elizabeth’s agents and, because of its apparent veracity, to be accepted as true.

Bacon declared there was nothing in the letters of which he was ashamed and added: “I have spent more time in vain in studying how to make the earl a good servant of the Queen, than I have done in anything else.” [132]


Both earls were found guilty of treason and sentenced to death. Elizabeth signed Essex’s death warrant, but reprieved Southampton. Just before his execution, Essex, convinced by his personal chaplain to confess his sins before facing his maker, called a group of councillors and admitted the substance of the case against him and that he had lied at the trial. “The Queen”, he confessed, “could never be safe as long as I lived”. He implicated a long list of fellow conspirators, not all of whom had then been caught, including his own sister. At the very end he abandoned his code of honour and any pretence of personal loyalty. Cecil thought he was just getting revenge against those whose evidence had condemned him. [133] I think it more likely that he still thought it was possible that Elizabeth would spare his life. Macaulay ignores all this. Had Bacon continued to support Essex to the end, as his critics like Macaulay suggest, he should have looked like a fool. However, Essex’s public image of gallantry survived.

The 33 year old earl was executed at the Tower on 25 February, still proclaiming that he never intended to harm the Queen. That was probably correct. He needed her to remain as a figurehead, while he exercised his natural right, as a man and as an inheritor of noble blood, to rule. He died as a man of honour should die: after full confession, penitent and accepting his fate without fear.

Bacon, whose conception of honour was one of civic virtue, not one of chivalric will, deserves the last word. In his later essay “On Vainglory”, he said:
He probably had Essex in mind.

ROYAL SUCCESSION

Essex had been in correspondence with James, the details of which were lost when he burned the contents of his black bag. After the execution, Cecil covertly received James’ ambassadors and offered his support to James, who was suspicious, probably because Essex had told him that Cecil was committed to the Infanta of Spain. Gradually a mutual confidence developed over a long period of encoded correspondence.

When Elizabeth died in March 1603, Cecil immediately implemented the agreed plan to declare James VI of Scotland as James I of England. In retrospect, he seems the only choice. That was by no means clear at the time. Elizabeth had refused to name a successor. She knew if she had done so, she would have become a lame duck. Led by Cecil, the political leadership of England believed that James was the only safe choice. On her death bed, in the presence of Cecil, Ellesmere and the Lord Admiral, Elizabeth had said, according to them: “Who should succeed me but a king?” [134] They proclaimed this to be her endorsement of the prearranged choice.

In theory all offices became vacant on the death of the monarch. Assurances had been given that most of the existing officeholders would stay, although no one could be confident about the whims of a king. In the event, Coke, Ellesmere and Bacon continued in their existing roles.

In April, on his regal progress to London to claim the Crown, when his entourage discovered a pickpocket, James ordered that he be hung on the spot, without a trial. Elizabeth had never done anything like that. The legal community would have to adjust to a king with distinct ideas about how the law worked. As Sir John Harrington put it:
END NOTES
1. Stone, Lawrence The Crisis of the Aristocracy: 1558-1641 Clarendon Press, Oxford, 1965 pp 15-16 (check later edition).

2. Bowen, Catherine Drinker The Lion and the Throne: the Life and Times of Sir Edward Coke Atlantic-Little Brown, Boston 1957 p16.

3. Esler, Anthony The Aspiring Mind of the Elizabethan Younger Generation Duke Uni.P. Durham, N.C. 1966.

4. Campbell, John Lord The Lives of the Chief Justices of England Vol.1 John Murray, London 1849 p239.

5. Spedding, James (ed) The Life and Letters of Francis Bacon London, 1861 vol i pp 108-109.

6. Croft in Elliott, J.H. and Brockliss L.W.B (eds) The World of the Favourite Yale Uni P.New Haven 1999 p94n.

7. See Hammer, Paul “Patronage at Court, Faction and the Earl of Essex” in Guy, John (Ed) The Reign of Elizabeth 1: Court and Culture in the Last Decade Cambridge Uni.P 1995 Chapter 3.

8. Guy 1995 op cit n7 p1.

9. Smith, Lacey Baldwin Treason in Tudor England: Politics and Paranoia Pimlico, London 2006 pp 146-147.

10. See generally Stone 1965 op cit n1 Chapter 8; Adams, Simon “The patronage of the crown in Elizabethan politics: the 1590’s in perspective” in Guy 1995 in op cit n7 pp22ff.

11. Handover, P.M. The Second Cecil: The Rise to Power, 1563-1604 of Sir Robert Cecil Eyre & Spottiswood, London 1959 pp 92-92.

12. Bowen 1957 op cit n2 p29.

13. Bowen 1957 op cit n2 Chapters 3 and 4;Boyer, Allen D. Sir Edward Coke and the Elizabethan Age Stanford Uni P. Stanford.2003 pp 218- 241.

14. Bowen 1957op cit n2 p21.

15. Bowen 1957 op cit n2 p12.

16. Handover 1959 op cit n11 pp 94-95

17. Neale, J.E Elizabethan 1 and her Parliaments 1584-1601 St Martin’s Press, New York 1958 pp 245-246.

18. Neale 1958 op cit n17 pp 303-305; Boyer 2003 op cit n13 pp 227-228; Jardine, Lisa and Stewart, Alan Hostage to Fortune: the Troubled Life of Francis Bacon 1561-1626 Phoenix Giant London 1998 p141-143.

19. Neale 1958 op cit n18 p88.

20. Bowen 1957 op cit n2 p34.

21. Bowen 1957 op cit n2 p320.

22. See e.g. Boyer 2003 op cit n13 pp 233-238.

23. Bowen 1957op cit n2 pp 27-28,35.

24. Read, Conyers Lord Burghley and Queen Elizabeth Alfred Knopf New York1960 p 496.

25. Spedding 1861 op cit n5 vol iii pp 226-231;Jardine & Stewart 1998 op cit n18 pp 184-186; Smith 2006 op cit n9 pp207-208.

26. Hammer Paul E. The Polarisation of English Politics: The Political Career of Robert Devereux,2nd Earl of Essex, 1585-1597Cambridge Uni.P 1999 p 328.

27. Boyer 2003 op cit n13 p243n.

28. Boyer 2003 op cit n13 p244.

29. Bowen 1957 op cit n2 p80.

30. Bowen 1957op cit n2 p81.

31. Dunn, Jane Elizabeth and Mary: Cousins, Rivals, Queens Vintage, New York 2003 pp 343-344.

32. Greenblatt, Stephen Will in the World; How Shakespeare became Shakespeare W.W Norton New York 2004 p 274.

33. Hammer 1999 op cit n26 pp159-160.

34. Green, Dominic The Double Life of Doctor Lopez Arrow, London 2003 p 281.

35. The Jew of Malta Act II scene iii lines 86-89.

36. Green 2003 op cit n34 p5.

37. Knafla, Louis.A. Law and Politics in Jacobean England: the Tracts of Lord Chancellor Ellesmere Cambridge Uni.P Cambridge 1977 p 20, Boyer 2003 op cit n13 p248n. This quote is sometimes wrongly attributed to Coke.

38. Green 2003 op cit n34 p278.

39. Green 2003 op cit n34 p281.

40. Handover 1959 op cit n11 p129.

41. See e.g. Hammer 1999 op cit n26 pp 294 ff, 323ff.

42. Spedding op cit n5 Vol. iii p4.

43. Spedding vol I op cit n5 p372.

44. Esler 1966 op cit n3 p139.

45. Campbell, John Lord Lives of the Lord Chancellors Vol 2 John Murray, London 1856 p68.

46. Collier. J.Payne (ed) The Egerton Papers:A Collection of Public and Private Documents The Camden Society, London 1840 p 314.

47. Campbell 1856 op cit n45 p68.

48. Campbell 1849 op cit n4 p200.

49. Campbell 1849 op cit n4 p 229.

50. Boyer 2003 op cit n13 pp295-296.

51. Knafala 1977 op cit n37 p181.

52. Collier (ed) op cit n46 pp 95, 96-97.

53. Spedding op cit n5 Vol II p 55.

54. Campbell 1849 op cit n4 p254.

55. Boyer 2003 op cit n13 p213.

56. Foss, Edward Biographia Juridica: A Biographical Dictionary of the Judges of England John Murray 1870 p 174; White, Stephen D. Sir Edward Coke and the Grievances of the Commonwealth Manchester Uni.P. Manchester 1979 p4.

57. Campbell 1849 op cit n4 pp255-256.

58. Macaulay, Thomas Babington “Lord Bacon” in Critical and Historical Essays Longmans, Green London 1877 p360.

59. Ibid.

60. Boyer 2003 op cit n13 p292.

61. Spedding op cit n5 vol ii pp 107-108.

62. Spedding op cit n5 vol iii pp 2-3.

63. Jardine and Stewart 1998 op cit n18 p289.

64. Rowse, A.L. The England of Elizabeth Uni. Wisconsin P.Madison, Wisc 1978 pp 381-382.

65. Boyer 2003 op cit n13 p204.

66. Stephens, James Fitzjames History of the Criminal Law in England, MacMillan & Co London 1883 vol 1 at 333.

67. Coquillette, Daniel.R. Francis Bacon Stanford Uni.P.Stanford, 1992 p80.

68. See Pritchard, Arnold Catholic Loyalism in Elizabethan England Uni. of Nth Carolina P.,Chapel Hill, N.C. 1979 especially Chapter 10.

69. Bowen 1957 op cit n2 p98; Boyer 2003 op cit n13 p 267; Gerard, John The Autobiography of a Hunted Priest Pellegrini & Gudahy, New York p98.

70. Bowen 1957 op cit n2 p99; Boyer 2003 op cit n13 p268; Gerard op cit n69 pp106-107.

71. Gerard op cit n69 p108.

72. Boyer 2003 op cit n13 p269.

73. Bowen 1957 op cit n 2 pp 100-101; Boyer 2003 op cit n13 pp 269-270; Gerard op cit n69 125-127.

74. The description of the history of torture is based on Langbein, John H. Torture and the Law of Proof:Europe and England in the Ancient Regime Uni.Chicago P., Chicago 1997 and Hall, Clifford “Some Perspectives on the Use of Torture in Bacon’s Time and the Question of his “Virtue”.1989 18 Anglo-American Law Review 289.

75. Hall 1989 op cit n74 pp 296, 301-302.

76. A v Secretary of State for the Home Department (No 2) [2006] 2 AC 61.

77. Macaulay 1877 op cit n58.

78. Denning, Lord Alfred Thompson Landmarks in the Law Butterworths London 1984 pp32-34.

79. Campbell 1856 op cit n45 p316.

80. Knafla 1977 op cit n37 p58.

81. Gerard op cit n69 p66.

82. Rowse 1978 op cit n64 pp 375-376.

83. Knafla 1977 op cit n37 p17.

84. Collier (ed) op cit n46 p120.

85. Campbell 1849 op cit n4 vol I pp209-211,219.

86. Campbell 1856 op cit n45 pp319-320

87. See Knafla 1977 op cit n37 Chapter 5; Campbell 1856 op cit n45.

88. Collier (ed) op cit n46 pp 208-209.

89. Holdsworth, William A History of English Law (2nd Ed) Vol 5 Methuen London p 233n7; Campbell 1856 op cit n45 pp318-319.

90. Knafla 1977 op cit n37 p62.

91. Ibid.

92. Mathews, Nieves Francis Bacon: the History of a Character Assassination Yale Uni P. New Haven 1996 p123.

93. “Introduction” in Guy (ed) 1995 op cit n7 pp 8-9.

94. Willian, Camden referred to in Smith 2006 op cit n9 pp236f

95. Weir, Alison Elizabeth the Queen Pimlico, London 1999 p446.

96. Smith 2006 op cit n9 p256.

97. Wernham, RB Return of the Armadas Clarendon Press, Oxford 1994 p347

98. Cadwallader, Laura Haynes The Career of the Earl of Essex Uni of Pennsylvania P. 1923 p70

99. Hammer 1999 op cit n26 pp18-19.

100. Smith 2006 op cit n9 pp 34-35, p 282n 94.

101. Smith 2006 op cit n9 passim.

102. See James, Mervyn Society, Politics and Culture: Studies in early Modern England Cambridge Uni P., Cambridge 1986 Ch 9.

103. James 1986 op cit n102 p444.

104. Hammer, Paul E. Elizabeth’s Wars Palgrave Macmillan London 2003 p2.

105. Strachey, Lytton Elizabeth and Essex: a Tragic History Oxford Uni P, Oxford 1981 pp 9-10.

106. Hugh Trevor-Roper quoted in Boyer 2003 op cit n13 p272.

107. Elton quoted in Loades, D.M. Politics and the Nation 1450-1660:Obedience, Resistance and Order Fontana, London 1974 p313.

108. Boyer 2003 op cit n4 p278.

109. See Kermode, Frank The Age of Shakespeare Modern Library, New York 2004 pp 53-55.88-89.

110. Jardine and Stewart 1998 op cit n18 p211.

111. Weir 1999 op cit n95 pp435-436.

112. Smith 2006 op cit n9 p222.

113. See Stone 1965 op cit n1 pp 242ff on the effects of the rapier.

114. Hammer 1999 op cit n26 pp 296-297, 325.

115. James 1986 op cit n102 p432.

116. Shapiro, James 1599:A Year in the Life of William Shakespeare Harper Perennial, New York 2006 p46.

117. James 1986 op cit n102 p423.

118. Macaulay op cit n58 p360.

119. Bowen 1957 op cit n2 p142-143.

120. Bowen 1957 op cit n2 pp144-145.

121. Bowen 1957 op cit n2 bp145.

122. Bowen 1957 op cit n2 p138.

123. Bowen 1957 op cit n2 p148.

124. Bowen 1957 op cit n2 p147.

125. Jardine and Stewart 1998 op cit n18 p245.

126. Bowen 1957 op cit n2 p154.

127. Bowen 1957 op cit n2 pp153-154.

128. Jardine and Stewart 1998 op cit n18 p245.

129. The oft repeated statement that, after his failure on the Attorney’s post, he gave Bacon his property at Twickenham has been shown to be false.

130. Macaulay op cit n58 p362.

131. See generally Mathews 1996 op cit n92 Chapters 4 to 6.

132. Jardine and Stewart 1998 op cit n18 p244.

133. See Levy, Fritz ”The Theatre and the Court in the 1950’s in Guy ed 1995 op cit n7 p291.

134. Handover 1959 op cit n11 p295.

135. Fn 135 Bowen, above n 2, p 178.