indeed that about the time of his fall several bills for the reversal of decrees in Chancery were brought in; but I cannot find that any one of them reached a third reading. I find also that about three years later another bill of the same kind,-and one which very nearly touches the point in question,-was brought in; namely, "an act to avoid a decree procured indirectly and by corruption between the Lord and Lady Wharton, etc. and Edward Willoughby, Esquire." It was read a first time on the 13th of March, 1623-4; and this was one of the cases in which a present had been received by Bacon, pendente lite. If this bill had passed, therefore, it would have been one case in point. But I cannot trace it beyond the second reading, and no such title is to be found among the private acts. I conclude therefore that it did not pass; and if so, the fact tells the other way.

Another fact which I cannot well reconcile with the supposition that many of Bacon's decrees were reversed in this way, is supplied by a note of his own, set down about the end of the year 1622. It occurs in that sheet of memoranda for a conversation with Buckingham's mother, which will be found in page 392 of this volume, and runs thus: "You may observe that last Parliament,"-meaning the session which commenced on the 14th of November and ended on the 18th of December, 1621,-" though an high-coming Parliament, yet not a petition, not a clamour, not a motion, not a mention of me."

Upon this point therefore the records of Parliament tell distinctly and almost decisively in Bacon's favour. They show that the circumstances of his conviction did encourage suitors to attempt to get his decrees set aside; that several such attempts were made, but that they all failed;—thereby strongly confirming the popular tradition reported by Aubrey,-" His favourites took bribes: but his Lordship always gave judgment secundum æquum et bonum. His decrees in Chancery stand firm. There are fewer of his decrees reversed than of any other Chancellor."

If on the other hand they were reversed by a commission appointed for the purpose, we must surely have had some news of it. Yet I cannot suppose that either Hale himself or his editor, who prefaces the tract with an elaborate investigation of the whole subject, had heard of any such proceeding. They could not but have mentioned it if they had.

Upon the whole therefore I think I may conclude either that the decrees mentioned by Lord Hale were considered as ipso facto set aside by the admission of corruption-(which could hardly be, and even if it were, could not be taken to prove more than is admitted

1626.]

HIS OWN JUDGMENT ON HIS OWN CASE.

559

in the confession,)—or that he used the words loosely, meaning only that they were easily allowed to be called in question—(which might be true, and yet upon question they might all be found just)—or lastly, that he was speaking without book. And either way I may still ask, where is the evidence of justice perverted? Till some

evidence is produced to that effect, I may still believe Bacon's own judgment upon his own case to be true. He expressed it on two occasions; privately indeed, but clearly and unequivocally. The first was in his letter to Buckingham, written from the Tower on the 31st of May, 1621; in which, after entreating him to procure his discharge and not let him die in that disgraceful place, he proceeds :

“And when I am dead, he is gone that was always in one tenor, a true and perfect servant to his master, and one that was never author of any immoderate, no nor unsafe, no (I will say it) not unfortunate counsel; and one that no temptation could ever make other than a trusty and honest and thrice-loving friend to your Lordship; and howsoever I acknowledge the sentence just, and for reformation's sake fit, the justest Chancellor that hath been in the five changes since Sir Nicolas Bacon's time."

This was written in the season of his deepest distress. The other occasion I cannot date. But I take the words to express his deliberate judgment, imparted to the confidential friends of his latter days;-imparted privately, and (it would almost seem) under some injunction to keep it private; for Dr. Rawley, whose affectionate reverence preserved the record, took the precaution to write it in a cipher, and never published or alluded to it in print. It is found in a common-place book, begun apparently soon after Bacon's death and containing memoranda of various kinds,-most of them, especially in the earlier part, relating to him and his works. The first few pages are filled almost entirely with apophthegms; two or three of which are written in a kind of simple cipher, the Greek character being used for the consonants, and the first five numerals for the vowels; the rest in Rawley's usual hand. Opposite to many of them is written stet, with a number affixed; which means no doubt that they were to be included in the collection of Bacon's apophthegms which were afterwards printed in the second edition of the Resuscitatio. At the top of the first page stands this sentence, written in the cipher and not marked or numbered; a sentence which I suppose Rawley had been forbidden to publish, but could not allow to perish.

1 Above, p. 280.

"I was the justest judge that was in England these fifty years. But it was the justest censure in parliament that was these two hundred years."

Now if instead of Lord Macaulay's view of the case the later ages should adopt Bacon's own-(and although he was a party so. deeply interested, I really believe it to be much the more impartial of the two, self-love in a mind which finds its highest pleasure in knowing and believing the truth being far less fatal to fairness of judgment than the love of rhetorical effect in a mind rhetorically disposed)-they will escape the other difficulties, and without refusing to believe anything to his disadvantage of which there is any pretence of proof, they may nevertheless "name his name with reverence," as that of a man to be respected for his moral, as well as admired for his intellectual qualities. For if his acts of corruption did not involve injustice or oppression to either party, whether in the form of extortion or deception or false judgment, they were acts compatible-not indeed with the highest moral condition, for a more sensitive morality joined with so clear a judgment would have started at and shrunk from them,-but certainly with a high condition of all the other moral virtues. A man might be guilty of them, and yet be just and brave and temperate and truthful and patient and diligent and generous and liberal and unselfish; he might have "bowels of mercies, kindness, humbleness of mind, meekness, long suffering: " he might be forbearing and forgiving, without "bitterness or wrath or anger or clamour or evil speaking or malice:" he might be a man who "fulfilled the law" by loving his neighbour as himself. I could feel respect for the moral condition of such a man though I thought that in some things he had been negligent, thoughtless, or faulty, just as I can feel respect for the intellect of a man who is wise in most things though he may have made mistakes in some. And it is surely possible to conceive gifts both given and taken,-even between suitor and judge while the cause is proceeding,-without any thought of perverting justice either in the giver or the taker. In every suit both sides are entitled to favourable consideration-that is, to the attention of a mind open to see all that makes in their favour-and favourable consideration is all that the giver need be suspected of endeavouring to bespeak, or the receiver of engaging to bestow. The suitor almost always believes his cause to be just, though he is not always so sure, and in those days had not always reason to be so sure, that its merits would be duly considered, if the favourable attention of the judge were not specially attracted to them; and though the

PAYMENT OF SERVICES BY FEES AT DISCRETION.

561

1626.] judge was rightly forbidden to lay himself under an obligation to either party, it must be remembered that in all other offices of dignity and in all the gentlemanly professions, gifts of exactly the same kind, fees, not fixed by law or defined as to amount by custom or recoverable as debts, but left to the discretion of the suitor, client, or patient, were in those days the ordinary remuneration for official or professional services of all kinds. It was not thought gentlemanly to bargain about terms or demand payment. The great man merely received freely what was assumed to be freely given. Lord Treasurer Burghley saw no impropriety in accepting a purse with a hundred guineas in it from a Bishop who felt thankful to him for furtherance in obtaining his bishoprick.. I do not suppose that his son Robert thought it wrong to receive "the 407. which Mr. Downing promised him for his friendship" in the "Beccles cause: that is for moving his father "for his good and lawful favour in the Corporation's behalf," and so bringing the cause to a good end.1 And when Lord Treasurer Suffolk was questioned in the Star Chamber for having (among other things) taken money for favour in transactions with the Treasury, the charge was not for taking the money simply, but for taking it in such a manner as to make the payment of the money a condition of despatching the business.2 The law officers of the crown derived, I fancy, a considerable part of their income from New Year's gifts and other gratuities presented to them both by individuals and corporations whom their office gave them opportunities of obliging: nor would the acceptance of those gratuities have been imputed as a fault so long as they were not employed as inducements to some unlawful act-some neglect or violation of duty. The practice was a bad one, and in the New Atlantis' it was forbidden. But it was the practice in England up to James the First's time at least; and the traces of it are still legible in the present state of the law with regard to fees: for I believe it is still true that the law will not help either the barrister or the physician to recover an unpaid fee: the professions being too liberal to make charges, send in bills, or give receipts, or do

1 See Vol. IV. p. 85, note.

3

2 "For when my Lady and Sir John Bingley had made their bargains, my Lord was ready to subscribe and not before. Then upon a sudden my Lord became tractable to deal with, and would give fair language. Before they had concluded, no business could be suffered to pass; his Lordship was not to be moved upon any Conditions." See above, p. 58.

"And when we offered him some pistolets, he smiling said, 'He must not be twice paid for one labour' meaning (as I take it) that he had salary sufficient of the state for his service. For (as I after learned) they call an officer that "We offered him also some twenty pistolets; but he smiled, and only said 'What? twice paid!"" New Atlantis. Works, vol. iii. pp. 132, 133.

taketh rewards, twice paid."

VOL. VII.

20

anything but take the money. In Bacon's time therefore almost all the men who rose to be Judges had probably been accustomed in the course of their professional career to this kind of irregular tribute; and an attorney-general transferred to the woolsack, seeing nothing unusual in it, might the more easily overlook the impropriety. Indeed in any man of the time except Bacon himself, such oversight would hardly have surprised me: it was not much more than neglecting to disturb a convenient arrangement to which he had always been accustomed. But I should have expected Bacon to have considered it, and to have seen beforehand all the objections to the practice which he saw so clearly as soon as he was called upon to justify it.

:

11.

I have now finished to the best of my ability the task which I undertook which was to collect and set forth, in the form most convenient for reading, all those writings, speeches, and other authentic utterances of Bacon, which being addressed to the business of his time cannot be rightly understood except with reference to the occasions which induced them. There are probably more in existence; but I have given all that I know of, except those contained in the Registrar's Book of Decrees and Orders-which cannot be safely dealt with except by a man who understands Chancerybusiness. A careful study of that by a competent student would no doubt throw a great deal of light upon a part of Bacon's life and work -namely his mode of doing business as a Judge in Chancery-concerning which we know nothing at present except that he kept down the arrears, and that his decisions were either not complained against or complained against in vain. Of his other writings, any which may be recovered will be welcome and valuable; but I expect that they will be found to fall naturally into their places without requiring any material correction of the story. We have in these volumes such abundance and variety of evidence as to his ways of proceeding as a councillor, a law-officer, a member of Parliament, a servant, a master, and a writer, that any which may be added to it hereafter is more likely to confirm than to contradict the evidence which we have already; and I think I may say that whoever seriously desires to form a judgment of his life, character, and opinions, will find here materials sufficient for the purpose. Nor, however his conclusions may differ from mine, will he find them on that account the less available for as I have been careful to keep my own opinions separate from the grounds upon which they are formed, the facts are there to speak for themselves and he can interpret them as he pleases.