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

[CrackSmokeRepublican]

Interesting comments by Sir Edward Coke on Jews and Bankruptcy... they were a foreign born element in England as was the idea of legal debt and bankruptcy.


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The History of Bankruptcy

You are not alone in your financial difficulties. Since ancient civilization, bankruptcy has been available to individuals who found themselves unable to repay debt.  Below is a short historical background on the history of bankruptcy.

Bankruptcy defined:

The word Bankruptcy is derived from the French words banque (bank) and route (road or path) or the Italian word bancorupto. Johnson, Samuel, A Dictionary of the English Language (Harrison & Co., 1786). Justice Story, quoting Sir Edward Coke, adopts the French origin of the word, explaining metaphorically that a bankrupt is one who "has wasted his estate, and removed his bank, so as there is left but a mention thereof." Story, Joseph, Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, section 1107 (Hilliard, Gray and Company and Brown, Shattuck , and Co., 1833). Justice Story continues, observing that the first statutory reference to the word bankrupt is found in the title of the English statute of 1542. That title, which states "against such persons as do make bankrupt" is likely a translation of the French phrase "qui font banque route." Story, Commentaries, section 1107; 34 & 35 Hen. VIII, c. 4 (1542). On the other hand, the lexicographer in Justice Blackstone prefers the Italian lineage. "The word itself is derived from the word bancus or banque, which signifies the table or counter of a tradesman (Dufresne. I, 969) and ruptus, broken; denoting thereby one whose shop or place of trade is broken and gone...." Blackstone, William, Sir, Commentaries on the Laws of England, Bk. II, ch. xxxi, p. 472, Note e, (Clarendon Press, 1765-1769); see also, The Catholic Encyclopedia, Volume II, Civil Aspect of Bankruptcy (Robert Appleton Company, 1907).

Still others prefer a more colorful explanation of the word's Italian origins. They contend that money lenders and merchants in Florence would offer their services in public places, where they would set up a bench or a table. If they were unable to repay their creditors, the creditors would simply break up the bench to signify the business' failure. The Italian phrase for this process of retribution was "banca rotta" ("banca" from the latin "bancus" and "rotta" from the latin "ruptus") meaning, "broken bench." Hence the origin of the word "bankrupt."

http://www.attorneybankruptcy.net/bankr ... istory.cfm

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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:

            "It was then that the State fully established its authority, that dozens of armed retainers were replaced by a coach, two footmen and a page boy, that private castles gave way to private houses, and that aristocratic rebellion finally petered out ... then that the British Isles, England, Wales and Scotland and Ireland, were first effectively united; then that political objectives began to be stated in terms of abstract liberty and the public interest, rather than particular liberties and ancient customs; then that radical Protestantism elevated the individual conscience over the claims of traditional obedience in the family, in the Church and in the nation; ... then that the House of Commons emerged as the dominant partner of the two Houses, and actually seized some of the political initiative from the executive ..."[1]


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:

            "Let judges remember that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty."

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:

            "Whosoever has anything fixed in his person that doth induce contempt, hath also a perpetual spur in himself to rescue and deliver himself from scorn. Therefore all deformed persons are extremely bold".


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

            "In their superiors it quencheth jealousy towards them, as persons that they may at pleasure despise: and it layeth their competitors and emulators asleep, as never believing they should be in possibility of advancement, till they see them in possession".


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:

            "I well remember, when by violent courses at any time he had got his will, he would ask me: now sir, whose principles be true." [26]

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:

            "I am proposed not to follow the practice of the law...it drinketh too much time, which I have dedicated to better purposes." [43]
            Nevertheless he did practice. He needed the money.

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:

            "The lady was kind to (Bacon) in more ways than one. She rejected him; and she accepted his enemy. She married that narrow minded bad tempered pedant, Sir Edward Coke and did her best to make him as miserable as he deserved to be." [59]

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:

            "Mr Bacon, if you have any tooth against me, pluck it out for it will do you more hurt than all the teeth in your head will do you good."

            "Mr Attorney," Bacon replied," I respect you; I fear you not and the less you speak of your own greatness, the more I will think of it".

            Unleashing a torrent of abuse, Coke continued, arrogantly:

            "I think scorn to stand upon terms of greatness towards you, who are less than little, less than the least".

            Bacon's riposte was pointed:

            "I have been your better and may be again, when it please the Queen". [62]

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.

            "Should the Pope send an army to England for whom would you fight, the Pope or the Queen?"


Gerard replied, refusing the invitation to chose between his body and his soul:

            "I am a loyal Catholic and I am a loyal subject of the Queen. If this were to happen, and I do not think it at all likely, I would behave as a loyal Catholic and as a loyal subject." [69]

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 Ga