by CATHERINE DRINKER BOWEN
SIR EDWARD COKE — Lord Coke, his contemporaries called him — was the great I Queen Elizabeth’s Attorney General and was Chief Justice under James, first Stuart King of England. The volumes that Coke wrote — his Reports and his Institutes, the first of which is the Commentary upon Littleton — remained for nearly three centuries the backlog of legal studies in England and America. Such a career is looked on as quiet, philosophic. Coke’s life was no more retired than a buccaneer’s. He was a handsome country gentleman who married in — succession — two beautiful young wives endowed with land, estate, and the pound sterling. Coke was above all a fighter, a born advocate who loved to feel the courtroom floor beneath his feet. Raucous, witty, ruthless, he made puns on the prisoners’ names, cracked broad jokes in Latin, and at the trials of Essex, Sir Walter Ralegh, and the Gunpowder plotters, lashed out in bitter, shocking invective. Coke’s life covers a long span; with him the Middle Ages end and today begins.
Coke is English law personified. Perhaps no Englishman, unless it is Winston Churchill, has embodied so many aspects of government. From Elizabeth’s Attorney General to James’s Chief Justice is a natural transition. But from state prosecutor to wholehearted Commons man, defender of free speech and parliamentary privilege, is almost a transmutation. Coke never set foot on American soil. Yet no United States citizen can read his story without a sense of immediate recognition. As judge and leader of the Commons, Coke risked his life for the very principles we take for granted: a prisoner’s right to public trial and the writ of habeas corpus, a man’s right not to be jailed without cause shown, his right against self-crimination in a court of law. When Coke was seventy, James I imprisoned him for these same championships, locked him in the Tower of London until it appeared more politic to free him than to keep him in. In these parliamentary struggles of King and Commons, these Westminster courtroom battles over procedure, jurisdiction, ‟right reason and the common law,” constitutional government found its way to birth. When the time came we changed the face of this English constitution; amid the sound of guns we repudiated what we hated, adapted what we liked. Yet the heritage endured.
Coke was prime champion (in 1628) of the great Petition of Right which served as model for our Revolutionary forefathers. Through Coke we see the Commons gal her slrength, begin to cast their votes as they wish, not as they are told, devise that potent instrument — familiar in our halls of Congress — the committee of the whole. There beside the Thames, knights, citizens, and burgesses battled, not for themselves alone but for states as yet unformed: Pennsylvania, Virginia, Iowa, California. . . .
1
THE tide runs in from the North Sea, flowing westward toward London, past Tilbury and Gravesend, past Greenwich palace and the docks of Deptford, where high-pooped ships, scarred from long voyages, crowd in for repairs. Against the city wall to the northward, the Tower rises; the river laps at its ramparts, swells and pushes through the long teeth of Traitors’ Gate. On London Bridge a hundred windowpanes reflect the light, while, far below, the tide boils through the arches. Even a Queen’s barge must wait till ebb to shoot the Bridge, and men have been drowned for their impatience. The high, clumsy foreign carracks cannot pass at all; they circle and shift on the Tower side or lie at anchor, waiting to unload their cargoes. But the royal swans sail through in flocks, arching their wings as if they owned the river. Where the Bridge touches Southwark banks, a massive gateway is crowned with towers, round, crenelated. Here, in times of danger and rebellion, traitors’ heads are set out on long poles for the populace to see.
Past Whitehall and Scotland Yard the Abbey comes in sight, the tower of Saint Margaret’s, and the busy cluster of roof and turret, gable, shop, dwelling house, and tavern which make up the city of Westminster. It is more town than city, actually, grouped close about the ancient Palace of Westminster, which houses the government and the law courts and which is itself a vast huddle of buildings, grown, through the centuries, any which way at the water’s edge. Chambers and chapels and courts are all of them connected by passageway, inner court, or cellar to that central structure which towers over them and which is the original reason for their existence — Westminster Great Hall. It is the biggest hall in England and the oldest. The Conqueror’s son put it up to show what a powerful, rich king he was. It measures two hundred and fifty feet in length and seventy feet across, with a coiling so high it can scarcely be seen in the dimness. Winter and summer it was so cold that when men entered they put on their hats and coats instead of taking them off.
In this place of gloom and echo, the law courts meet in term time as they have met since the thirteenth century. So filled and taken up is this old Hall with courts that its name has become a synonym for law. If a man is in trouble, people say that “Westminster Hall” will absolve him or “Westminster Hall” will prove his guilt. Anyone may come in and watch these legal shows. In term time the Hall is a moving, jostling, noisy throng &emdasah; jailers with their prisoners, attorneys, barristers, and clients, solicitors hanging in the shadows looking for business, vendors of books, of paper, ink, and food, the general public, and an eternal army of law clerks carrying rolls of parchment to and from the cellar (known locally as Hell), where the legal records are kept.
To Edward Coke, however, the old Hall signified, from end to end, not hell but heaven. Here in these chambers and corridors and in the great hall of justice, Edward Coke, barrister. Recorder of London, Speaker of her Majesty’s House of Commons, lived his daily life and had his being.
In April of 1594, Coke was named Attorney General by Queen Elizabeth, winning the place over the bitter rivalry of his colleague in the Commons and the courts, Francis Bacon. The Queen sent for Coke. As he entered the crowded presence chamber, spectators saw a handsome man, tall, big-boned, inclined to spareness. His face was oval and a trifle long; between mustache and pointed short beard the lower lip showed full and red. Dark hair, cut even with the ears, had as yet no trace of gray but had begun to recede at the temples, accentuating t he height of forehead. Coke’s eyebrows were heavy and smooth, his complexion somewhat swarthy; at forty-two, there were few lines to his face. His eyes, large, dark, and brilliant, bore the watchful look of a man ambitious and self-contained. Whether dressed for palace or law court, Coke was always well turned out in handsome gown or doublet, quilted sleeves, a wide, high ruff, meticulously starched and fluted. “The jewel of his mind,” wrote a contemporary, “was put into a fair case, a beautiful body with a comely countenance, delighting in good clothes, well worn.”
There is a little story about this meeting at the palace between Elizabeth and her new Attorney; Coke gives it in his Third Institute: “And I well remember when the lord treasurer Burghley told Queen Elizabeth, Madame, here is your attorney generale (I being sent for) qui pro Domina Regina sequitur [who prosecutes for his mistress the Queen], she said she would have the forme of the records altered, for it should be attornafus generalis qui pro domina VEKITATE sequitur [who prosecutes for his mistress the truth].”
No less characteristic was the message Coke received from his onetime Master of Trinity College, John Whitgift, now Archbishop of Canterbury and Primate of England. From his palace at Lambeth, hearing of Coke’s promotion, Whitgift sent a Greek Testament. His old pupil, he wrote, “had now studied common law enough; let him hereafter study the law of God.”
It was serene and hortatory, but I the Archbishop chose an un propitious moment. Religion had been made into a crime, the laws of man subverted the laws of God. For twelve years, Coke was to act as Attorney General, first for Queen Elizabeth, then for King James I. For twelve years, to track down ‟papist traitors” would be his especial charge — not a pretty business nor one which endears. But Attorney Generals do not choose their cases. The Queen’s prosecutor has but one client, exigent, demanding, without mercy and without soul — that great, expedient corporation, the State.
2
THE King of Spain, Elizabeth told a French ambassador blandly, had fifteen times attempted her life. Should a sixteenth attempt be successful, anarchy would ensue and English papists combine with France and Spain to put a Catholic on the throne of England, it was no idle fear. Within the decade, a Prince of Orange and a King of France had met death by assassination. The faith of princes was scarcely less uncertain than their lives. Henry of Navarre had changed his religion in order to be King of France. (‟Paris is worth a Mass,” he said.)
In the minds of young Jesuit missioncrs, a holy ambition flared. ‟There is,” wrote Henry Walpole in 1591, “a great hope and inclination to the Catholic faith of late in England, in court, camp and country.” The champion of champions still lived on. Philip of Spain, once Mary Tudor’s husband, sat now in his black velvet wheelchair in the Escorial, tormented with stone, gout, asthma, and hurling anathema at his sister-in-law Isabella (Elizabeth) of England. Scorpio, the British cipher called him.
His mind undimmed, his plans forever shifting as his armadas ranged the seas, Philip, at sixtyseven, had by no means put away ambition toward the English crown he had come so near to wearing; his daughter, the Infanta, by blood assuredly had claim. From the Rising in the Norlh of 1569, when Coke had been a student at Cambridge, down through the Babington plot that sent Mary Stuart to the block and the Lopez affair that was soon to astonish London, every attempt on Elizabeth’s life could be traced to Catholicism and Spain. Decade by decade and bitterness on bitterness the thing had piled up until heaven itself — let alone the Queen’s Attorney — would have been troubled to disentangle right from wrong.
Men confused piety with deceit, the celebration of the Mass with secret poisonings. In the Parliament House itself a traitor had been caught: Dr. Parry, a Kentish Burgess who confessed a plan to pistol the Queen as she rode in the fields by Greenwich. Then there was the young Warwickshire gentleman who informed his friends that he was going to London to kill the Queen and ‟set her head on a pole because she is a sarpent and a viper,” and who set off cheerfully and quite alone on his mission and ended, of course, in the Tower. The danger was real, the plots existed. Because a man is crazy (or dedicated) does not mean his pistol will shoot crooked. London went in throngs to see these poor wretches executed, shouted ‟Death to traitors!” and watched the terrible sentence carried through–the hanging, the cutting down alive, the castrating and disemboweling. At every scaffold, future martyrs were born. Young Henry Walpole of Norfolk, standing close during the quartering of Father Campion, was spattered with blood and swore then and there to dedicate his life to the Catholic cause.
Elizabeth hated this butchery of priests, and there were those at her Council Table who questioned its efficacy. Spain boasted that Inquisition methods were successful and had wiped out the Lutheran heresy within her borders. In England, severity seemed to have perverse effect and the Catholic faithful to multiply under the rod. Lord Burghley preferred that priests be hanged only, and ‟the manner of drawing and quartering be forborne.” Errors of ‟zeal rather than of malice” should be gently dealt with. Sir Thomas Smith also disapproved the rigor of the new penal laws; violence was not the way to advance religion.
But cruelty, once accepted as a policy, cannot easily be dispensed with, nor can penalties be readily mitigated after the public has grown used to seeing them enforced. Parents took their children to executions. The dying men made long, passionate speeches to the Crown, and if a prisoner ‟repented” and vowed he ‟died in Christ,” it was considered edifying. In such a climate, men did not stop to distinguish criminal from saint. Every suspect was a would-be assassin, even those gentle missioners, the Fathers Campion and Southwell, who on the scaffold had protested that they wished no harm to Queen or country but desired only to further the cause of true religion.
No sooner was Coke named Attorney General than a pamphlet appeared in London, entitled A Conference about the next succession to the Crown of England, and nominating the Infanta of Spain. The very boldness of the maneuver was shocking, and the author had dedicated it to the Queen’s favorite, Robert Devereux, Earl of Essex, pointing suspicion where it might be most effectual. The pamphlet was signed R. Doleman, pen name for the cleverest, strongest Jesuit of them all, Robert Parsons of Somerset, living somewhere on the Continent, in close touch with Spain and Rome, believed to be the brains behind all Catholic attempts on England — a man ‟whose doublings and turnings are such as would trouble a right good hound to trace him.” From his secret presses rolled a stream of Discourse#, Treatises on the English Persecution, Response to Elizabeth . . . persuasive, dangerous, appearing anywhere and everywhere, even on the pews of Saint Mary’s Church at Oxford when the parishioners came to Sunday service. A skilled politician, Parsons knew the cause could not succeed unless the home ground was well prepared. Spain was deceived if she thought “to get the upper hand in England without having a party within the realm.” Nor would such a party form itself — that too, said Parsons, was “a great illusion.” It must be shaped and instigated from without; from without must come money and men to hold it together.
To prevent the creation of such a party was the Attorney General’s especial business. Ownership of Parsons’ Conference on the Succession was declared high treason; Coke searched out copies where he could. London was gripped with a kind of panic, though the Queen, as usual, seemed less affected than most. Refusing, she said, “to mistrust the love of her subjects,” she made herself easy of access and rode the streets lightly guarded, horrifying her escorts by singling out humble persons in the throng and giving them her hand to kiss. To count heads was useless; for the Attorney General it was enough to know that a foreign power had agents in England’s midst and they must be hunted clown. For the first fifteen months, Coke acted alone, as both Attorney and Solicitor General; the Queen had yet to appoint a second-incommand. But he had powerful backing in William Cecil, Lord Burghley, whose men were at his call; informers and pursuivants are never hard to come by when the purse is open. Essex also employed his private spies, with the Bacon brothers, Anthony and Francis, acting as interrogators of suspects or translators of captured foreign cipher.
3
To READ the State Papers Domestic one would think government in the 1590s had been busy at little else. Coke’s name appears again and again, as signature to depositions of witnesses, in letters to Burghley about penalties to be imposed, or certifying the confessions of suspects to be examined in the Tower, the Gate House, the Marshalsea, the Clink. An official nomenclature had developed for kinds and degrees of recusants. The ‟schismatics” were Catholics by conviction who attended Protestant church to escape ruinous fines for nonattendance; the “old Mary priesls” were Fathers left over from Queen Mary Tudor’s day, tolerated because they kept quiet and did not proselytize. Elderly and easygoing, these Mary priests disliked the vigorous young Jesuit missionaries, with their Continental education and arrogant ways. Jesuits, besides, were apt to be gentlemen born, extraordinarily attractive in person, accomplished courtiers in conversation and address — Father Gerard and the four Walpole brothers of Norfolk could talk falconry with any peer’s son, Wear a sword as casually as Ralegh and ride as gracefully as Essex. Many were brilliant scholars who had left Oxford or Cambridge because they would not take the Oath of Supremacy necessary to a University degree. It was said they were making converts by the score, and not poor converts either, but rich ones who in their country manors could shelter these young Fathers and contribute bountifully to the cause.
It was a most painful dissension in the body politic. Neighbor spied on neighbor, men hunted recusants for prize money as they would have hunted owls or wolves. Catholics were the conservatives of the time, upholders of the past and of “the old religion,” landholders of inherited title whose servants shared their ancient loyalties. In the confiscation of recusant property lay a mine of enrichment for officialdom. The temptation was strong. At one sitting of the Hampshire Assizes, four hundred recusants were brought in; at a sitting in Lancashire, six hundred. Jails overflowed, local Justices of the Peace were at their wits’ end. The Bishop of Winchester petitioned that among the lustier offenders two hundred be sent into Inlanders ‟to labor for the army.”
Dishonest officials — the Justice Shallows and their henchmen — made the most of if where they could, pocketing fines, forging passports for recusants to come and go. In the Star Chamber, Coke informed against ‟one Easter, a minister, for forging six passports and against Egles, the Clerk of a Justice of the Peace, for forging 73; which was confessed by them. They were sentenced to be whopte in Wiltshire and fined each £5 and imprisonment.” The government tried hard to stop all such trafficking. In the Star Chamber, Coke brought information against five Lancashiremen who had gone into papist-catching as a business, counterfeiting warrants under the Lord Admiral’s seal and reaping a harvest of ‟papists, seminaries, agues dei and crucifixes, receiving money and thus having collected divers sums and deceived the Queen’s people.‟ Wearing on their breasts the Queen’s Arms like pursuivants, the five, under the leadership of one Johnson, had terrified a priest into ‟confessing” that he had burned a child in an oven — after which Johnson pocketed five pounds to keep quiet about it. The men even forged warrants for their own maintenance in the town of Lancaster. When a plucky mayor refused to give them lodging, Johnson, in the law French of the reporter, “done luy blowe del care.‟
The judges made short work of the case. Four of the culprits were sentenced to stand on the pillory “and lose their ears if they have any,” be branded on the forehead with the letter F, “for Fraymaker or Fighter,‟ and perpetual service in the galleys.
The fifth man had an easier sentence, “inasmuch as he wrote the forged names through fear of a stab from Johnson.” Lord Burgh ley, as sentence was being pronounced, interrupted with a grimly practical suggestion. ‟Inasmuch,” he said, “as such burnings in the ears and hands die out in a short time, the prisoners should be scarified on the balls of the cheeks with the letter F by a surgeon, and some powder put there to color it, so that it should never vanish.”
“But the others,” the report ends, “made no reply to this.”
Not all traitors bore the Roman stigma. Coke was at times concerned with recusants of another color. “Puritan” was a word used indiscriminately in the 1590s for nonconformists, whether Presbyterians, Brownists, Barrowists, Enthusiasts, Antinomians, Anabaptists, or Norfolk’s imported Family of Love. And though these were not “Spaniards” but mere rioting Englishmen, they were dangerous enough. Any one of them seemed equipped (like Lord Cromwell’s two Puritans at North Ehnham Parish) to mount a pulpit without license or official preparation and preach violently against the Episcopal Establishment. Country people flocked to hear them, flocked also to those meetings called “prophesyings,” where revelation twisted itself readily into temporal forecast and discussion concerning the most acceptable Protestant successor to the Crown.
There seemed no end to self-sly led prophets. One William Hackett — possessed, he said, by the soul of John the Baptist — ran through London with his followers, crying “Repent, England, repent!”— which might have been overlooked had not Ilaekett stuck bodkins through the Queen’s picture and insisted she must be “unthroned.” In prison, Hackett “confessed” and revealed the names of his associates, all of whom, at their examination, refused to remove their hats because they were “of higher dignity” than the Bishops and the Lord Keeper who sat to question them.
Nor were Marlin Marprelate’s libels (1588) forgotten. It had taken the government five years to discover the presses and round up conspirators enough to make a show and example. The chief instigator turned out to be a Welshman named John Penry, who possessed the infernal talent of being funny in print on religious subjects. Puritans still quoted his pieces. Archbishop Whitgift haled the sight of Penry and those ardent dissenters, Barrow and Greenwood. Separately or together the three were interrogated, commencing with the High Commission, the supreme ecclesiastical disciplinary court which tried heresy eases without a jury. Whitgift presided. When, he asked, had Barrow last been to church?
“That,” said Barrow, “is nothing to you.”
“Of what occupation are you?” asked the Archbishop.
“A Christian,” Barrow said.
“So are we all,” said Whitgift.
“I deny that!” Barrow retorted, He would not, Barrow added, answer truthfully any questions concerning religion, nor would he swear an oath or give bond. “The Lord knoweth,” he told the Archbishop, “I am ignorant. I have no learning to boast of. But this I know, that you are void of all true learning and godliness” — after which he called the Archbishop a monster, resembling the beast from Revelation “with horns like a lamb that spoke like a dragon, which compelled people on earth to worship the image of the beast or be killed.”
It was courageous, considering the circumstances. But it sounded mad. These Independents had drifted into a jargon all their own, violent, colorful, borrowed largely from Revelation and Jeremiah — and extremely irritating to those outside the fraternity. It was too much for Whitgift, who cried out from the bench, “Away with him! Clap him up close, close! I will make him tell another tale yet. I have not done with him!”
The men gave their judges no chance, they seemed to ask for martyrdom. They had none of the Jesuit finesse and certainly none of the Jesuit learning which so roused Coke’s curiosity later on. The High Commission let Barrow and Greenwood go for the moment, then rearraigned them under the statute of 23 Elizabeth (1581) making it a felony to “devise and write, print or set forth any manner of book, rhyme, ballad, letter, or writing containing any false, seditious, or slanderous matters to the defamation of the Queen’s Majesty, or to the encouraging, stirring or moving of any insurrection or rebellion.” Tried again at the Sessions Hall (Old Bailey) with a jury, Barrow and Greenwood swore they had no “malicious intent.” They were found guilty and executed at Tyburn. John Penry too had his trial at common law in the court of Queen’s Bench. He was convicted of treason, then taken across the river into Surrey and hanged, to the satisfaction of the orthodox.
4
DR. RODERIGO LOPEZ was the Queen’s physician. He had lived in England for years, owned a handsome house in Holborn not far from Coke’s, was a member of the College of Physicians, and was consulted by most of the nobility. Some said the Doctor owed less to expertness and learning than to his sympathetic manner and an “ability to make great account of himself.” It was told around town that Lord Burgh ley had ordered him to return a fee after failing to cure a servant’s “swelled shinbone.” But such slanders are part of every fashionable practice; Lopez was content with his position. Francis Bacon described him as “very observant,” of a “pleasing and applicable behaviour.”
He was accused of conspiring to murder Elizabeth, ‟stir up a rebellion and a war within ihe realm and overthrow the commonwealth.” It was Essex who found him out. The young Earl, in his running rivalry with the Cecils, looked continually for means to enlarge his foreign intelligence so as to surpass Burghley’s. But while Burghley used his spies to maintain the peace (and said so), Essex, whose hope of glory lay in arms, not treaties, desired open war with Spain and to this end produced, when he could, proof of Spanish perfidy. Each captured suspect fed the Essex fire, at once heating popular hatred toward the enemy and lighting up the Earl’s own patriotic efforts. Actually, Dr. Lopez dipped his fingers somewhere in the Spanish pie; he confessed to accepting a jewel from Philip II — which he promptly gave to Elizabeth — and said he had ‟listened‟ to a bribe of fifty thousand crowns. Yet it is extremely doubtful if Lopez ever plotted harm to the Queen. He might have lived out his life quite peacefully had it not occurred to Essex that so accomplished a linguist, with friends all over Europe, would be a perfect instrument for foreign correspondence. Essex made an offer; Lopez not only refused but, to the Earl’s vast annoyance, told the Queen about it. Essex next intercepted some suspicious-looking letters, on the strength of which he obtained from Privy Council permission to search the Doctor’s papers. Robert Cecil went, with him. They found nothing. The Queen, angry, told Essex that he was ‟a rash and temerarious youth to enter into a mailer against the poor man which he could not prove.” The Earl retired to his rooms and sulked for forty-eight hours, then emerged and laid his nose again to the scent. “I will make this conspiracy as clear as the noonday,” he said.
In a week’s time, Dr. Lopez was in the Tower and with him half a dozen Spanish and Irish suspeets. From now on, accounts conflict and every tale is different. Yet from the moment these men entered prison, the world accepted their guilt. (In times of civil danger any foreign victim serves the purpose.) Coke, Essex, the Privy Council went down-river to interrogate the conspirators. For one suspect, the State Papers have six succeeding examinations by Coke, witnessed by the Tower Lieutenant or members of Privy Council. Known as ‟preparing for the trial,” this was regular procedure — formal interrogation and answer, written out, signed, witnessed, then repeated later to see if the answers matched. Inevitably, contradictions cropped up as new conspirators were caught. Men swore and forswore, confessed and ‟relractated.” The English common law forbade torture — a fact of which English legal writers, including Coke, were very proud. “There is no law to warrant tortures in this land,‟ he wrote in the Third Institute, ‟nor can they be justified by any prescription being so lately brought in.” Quoting Chief Justice Fortescue, Virgil, Luke and John, torture, Coke concluded, is against Magna Charta, Capitus-39 ‟And accordingly all the said ancient authors are against any paine or torment to be put or inflicted upon the prisoner before attainder, nor after attainder, but according to the judgement. And there is no one opinion in our books, or judicial record (that we have seen and remember), for the maintenance of tortures or torments.”
Elizabeth’s famous Secretary, Sir Thomas Smith, had gone even further, declaring torture to be contrary to the very nature of Englishmen. ‟Torment or question, which is used by order of the civil! lawe and custome of other countries, to put a malefactor to excessive paine, to make him confesse of him selfe, or of his felowes or complices, is not used in England, it is taken for servile. The nature of our nation is free, stoute, haulte, prodigall of life and blond; but contumelie, beatings, servitude, and servile torment and punishment it will not abide.”
Considering the high tone taken, and considering Edward Coke’s persistent care for legal precision in writing, it is extraordinary that neither man sawfit to mention the frequent torture of suspects that took place during their respective tenures of office. It was true that in England torture was not used as penalty after conviction but only before trial, to induce confession; true also that wurranlsof torture came never from the commnon-law judges but from the Queen or Privy Council — in short, from that mystic authority known as the prerogative, where all blame could rest. Coke said repeatedly that in England the prerogative was limited by common law . Under two Stuart kings, he was to risk his life to prove it.) Yet in Elizabeth’s day, no commonlaw judge seems to have questioned the royal warrant. Coke, Bacon, Burghley, Robert Cecil —every man in government, when so commanded, signed the Queen’s warrant for torture. “Obstinate fellows,” who before trial would not talk, were put to the manacles, the rack, or an instrument known as Skevinton’s Irons. Some wore shut into the cellbox called Little Ease or in the Tower hole below high-water mark, referred to officially as ‟the low dungeon with the rats.”
5
THE distinction between law and the prerogative, accepted without question before the Stuarts’ time (1603), would be obliterated only by revolution. But if judges and attorney generals found justification, Tower prisoners could take small comfort in nice juristic lines between law and prerogative; the rack was no more endurable because the Queen and not her judges had ordered it. The truth is that government, unless prevented by the people at large, in all times and climes employs such methods as it finds convenient. “Cruel and unusual punishments,” once used, will be used again, and by a kind of tacit conspiracy accepted. Elizabeth’s warrants for torture, far from being destroyed as shameful, were filed methodically with other records and remain to tell the truth. Nor was the rack used solely for traitors and prisoners of state; particularly heinous robberies or murders were “solved” by evidence so obtained. Strong men who could look on the scaffold without flinching broke down under torture. Henry Walpole, racked by Topcliffe until he could not write, gave the names of his friends and declared himself ready to change his religion and conform. (It did not save his life.) Yet men under duress stood up valiantly for their rights; more than one prisoner is reported as demanding “to see the warrant for my racking.”
Dr. Roderigo Lopez was not tortured, nor, probably, were his accomplices, though Louis Tinoeo, a bragging, impudent liar, was ‟shown the manacles.” Experienced examiners knew that to some minds a glimpse of the rack could be as efficacious as the first turn of the screw. “The brake,” people called it with a kind of rough jocosity, “the Duke of Exeter’s daughter.” Yet a populace which went to public executions as to a circus haled this Tower torturing. The government took care to repudiate, at public trial, any accusation of its employment. Richard Topcliffe, the notorious Tower questioner, was especially loathed. His name had become a byword — Topeliffian customs — by which he felt himself aggrieved, “for only doing my duty,” he said plaintively.
Lopez’s trial was held in the Guildhall before a special commission, headed by the Earl of Essex. Coke conducted the prosecution. Perhaps the clearest story rests in his own Heads of the indictment. Set down briefly for his convenience, the notes lack that professional courtroom oratory, at once brutal and self-righteous, which in treason cases disfigured speeches from bench as from bar. There are eight headings, each carefully dated and purporting to give the main facts of guilt — a jewel accepted from the King of Spain, “1 Oct. l591 ”; conferences with Andrada, do Gama, and Tinoco, “for poisoning the Queen”; a repeated statement by Lopez that ‟when he had performed the same, he would go to Antwerp and thence to Constantinople, where he would dwell.”
Little in the written evidence or indeed in this performance at the Guildhall would today convict a man of capital crime — unless public feeling demanded it. Lopez was a foreigner and, according to Francis Bacon, a converted Jew. By the time he reached the courtroom he had no chance, the thing was decided. ‟Perjured and murdering traitor!” Coke exclaimed. ‟Worse than Judas himself!” Robert Cecil, writing late that same afternoon to Windebank, Clerk of the Signet, remarked with satisfaction that ‟a most substantial jury have found the doctor guilty in the highest degree of all treasons and judgement has been passed against him with the applause of the world. Though the villain said he had belied himself only to save himself from racking, which the Lord knows is most untrue.”
For three months, the Queen left Lopez’s death warrant unsigned, possibly from compassion, for she had liked the old Doctor, but more likely, persuaded that he might reveal further guilty names. Early in June, 1594, the Queen signed Lopez&$8217;s death warrant. With his confederates, the Doctor was dragged up Holborn Hill and out the long road to Tyburn. A great crowd followed. From the scaffold, Lopez cried out that he had only meant “to deceive the Spaniard and wipe him of his money.”
Elizabeth refused to deprive the Doctor’s family of his property by the usual attaint of blood that was part of a traitor’s penalty. The affair created infinite talk. It was said the Queen continued to wear at her belt the jewel Lopez gave her. Marlowe, Dekker, Middleton, referred to the Doctor in their plays, Shakespeare is thought to have used him in his studies of Shylock.
Yet on the calendar of the Queen’s Attorney General, Lopez was one among many. A month after the Doctor’s execution, three more conspirators were caught — English gentlemen, by name Yorke, Williams, and Young, who had been living in Brussels with the Catholic exiles and confessed a plan to “kill the Queen and raise rebellion in Wales.” Once again it was Essex who brought information and conducted much of the pretrial questioning. The prisoners accused each other of wildly dramatic crimes. Williams had taken eighteen hundred pounds’ worth of plate from Winchester Cathedral and coined it into money at chambers in Gray’s Inn. Young was “cunning in poisoning.” Yorke had called Lord Burghley a bloodsucker and sworn to “lay a coal of Fire upon the stairs in a privy place and put poison upon it, so that as many as came up the stairs would fall down dead.” They were fools who tried to kill the Queen, Yorke added, for “she was always mewed up in her chamber.” Better “to kill the Lord Treasurer’s horse, for he would take it so grievously if the old jade were dead that he would die too.” (Everyone knew about Burghley’s old horse, of which he was so proud.) In the end, all three swore on the Sacrament, in Coke’s presence, that they had been sent from Brussels to kill both the Queen and Burghley. All three were executed at Tyburn.
6
FANTASTIC as the accusations seem, and the “proofs,” it is to be noted that these single traitors, these ineffectual would-be assassins, were considered, every one, as part of a larger plan. Their orders came from abroad, from France, Spain, the Low Countries. Williams and Yorke testified there was in Brussels a Council of State for England, composed of well-known exiled English gentlemen — Williams gave their names — which met every morning to debate on plans for the “Catholization of England.” Suspects confessed they had “listened to Robert Parsons the Jesuit expound the doctrine that it was laudable and permissible to kill a heretic prince.” Some came with plans to fire the Queen’s ships, or confessed they “adhered to the King of Spain, robbed and spoiled divers English ships at sea.” “John Annins,” runs one of Coke’s examinations, “undertook the burning of the Queen’s ships, had a pension from Spain; L— undertook to kill Her Majesty. . . . The others are obstinate and seducing priests and Jesuits, and have long remained in Spain.”
The fact of their willing exile raised indignation. Could a true Englishman prefer to live in enemy country, let alone use enemy country as a base from which to attack his native land? ‟Who sent you?” It was the first, most frequent question. The stones of Newgate gave it back, and the Tower bastions. Who sent you? Every Catholic exile used, of necessity, an alias, forged passports to come and go. “One John Patrick, an alleged Englishman.” The words were scornful, suggestive of perjury. There is an injured note to some of the reports — “how these men plot to kill our Queen, whereas our Queen has never been privy to any practice against the King of Spain’s life.” Our Queen, meanwhile, was busy putting out her own pirate ships, which did extremely well; the Swiftsure, the Crane, the Malescourge, slipping past enemy beacons, running under the walls and guns of Spain and returning laden with gold which bore no English imprint. An order to Sir John Hawkins for “a voyage to the southward” names six ships — ending, significantly enough, with the Foresight — “for which her Majesty is to have a third part of any booty taken from her enemies.”
A war-and-no-war, men called it, grumbling. On shore the Spaniard-hunt was expensive, time-consuming. After a notorious case like the Lopez conspiracy, whole nests of suspects were netted. The seaport watches were strengthened, directives sent out For the apprehension of suspicious persons coming into England from beyond sea. Special officers saw to it that no one landed until examined as to why he came. “ If the cause does not appear clear,” runs the order, “they are to be committed to prison or kept on board until their examinations have been sent to the [Privy] Council. Every Irishman shall present himself to the Lord Mayor to be examined how he lives and why he remains in England. No one who has served for the King of Spain is to be allowed to come into the realm. If any one has done so without leave, he is to be attached, imprisoned, and punished as an enemy, and whoever detects any such person shall have a good reward, and not be made known to the offender.”
In 1596, Spain captured Calais from the French, which meant the enemy was entrenched within twenty-two miles of the English coast. War-andno-war, the chase went on. The accounts, laconic, unadorned, have a quality of fantasy, picaresque, incredible — “Thomas Hygate, seminary priest, broke from Wisbeach Castle, rode with his man waiting on him, a hawk on his fist and a lackey running by him. . . . Brewster, a priest, was hid in a chimney. . . . Topcliffe came near to taking one Pixter, a priest, took his girdle, hangers [holding-loops on a sword-belt] rapier and cloak but he made his escape and went beyond sea…. In Mrs. Rigsby738217;s house in Old Street behind Golden Lane there is a vault under the stairs going up to a chamber where two or three may be hid, and a place on top of the stairs where they can take up the boards to go down to the vault. . . . In Wolfes, in a little gallery, there is a place for an altar and other massing stuff . . . at Mapledurham there is a vault under a table with a grate of iron for a light into the garden and has rosemary growing against the grate.”
Hawk on list and lackey running; rosemary growing against the grate 738221;as by a cellar window.” These things were true, they happened and gave their color to the times. Edward Coke, by virtue of his office, was marked by them as the huntsman is marked by his cry. When danger threatens, the pack runs together: Coke, Burghley, Popham, Anderson, Francis Bacon, John Whitgift, Egerton. Attorney, judge, bishop, Lord Keeper, their nose was to the scent. ‟… found guilty of all treasons,” wrote Robert Cecil, “with the applause of all the world.”
7
COKE examined dozens, perhaps scores, of Catholic suspects. One of the most celebrated was John Gerard the Jesuit, son of a Derbyshire gentleman who had been imprisoned for trying to rescue Mary Stuart. When Coke encountered him, he was a tall, strong, swarthy man of thirty-three, with dark hair, square-cut beard, and a formidable reputation with the authorities. Already he had escaped from three English prisons and seemed to pass back and forth across the Channel at pleasure, to the vast embarrassment of port officials. Suave, knowledgeable, he had a kind of naïve snobbishness. Mis very humility was arrogant, and he was perfectly honest except when he came up against Protestants. Money poured into his pockets for the cause. ‟They gave without, my asking and looked on it as a favour when I accepted,” he wrote often. (Actually, he was to die in his bed at a ripe age, “unworthy,” he said, “the crown of martyrdom.”)
On a spring day of 1597 — April 14 — Coke, with William Waad, Clerk of the Privy Council, and Solicitor General Thomas Fleming, went down to the Tower to question Father Gerard.
Fleming had been appointed late in ‘95. He was slow and reliable, the perfect second-in-command. Coke liked him and said he had a ‟sociable, placable nature and disposition.”
The three lawyers were prepared to meet a skillful antagonist, a scholar from Oxford, Rheims, and Rome who could match anyone’s Latin or logic. Gerard had been too much for Topcliffe, when that gentleman put to him the dreaded ‟bloody question,” devised by Burgh ley: “Should the Pope send an army to England, for whom would you flight, Rome or England, the Pope or the Queen?”
“I am a loyal Catholic,” the Jesuit had replied. ‟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 a loyal subject.”
Topcliffe, at this, had lost his temper, unbuckled his sword and flung it threateningly on the table. Gerard merely looked at it in distaste and was led, loaded with irons, back to his cell. The old Dean of Westminster, Dr. Goodman, had been equally routed on undertaking to prove, by the best Cambridge logic, that Gerard was a heretic. The Jesuit had trapped the Dean into a syllogism, then turned it back on him, explaining blandly that the Dean’s logic was false, because it “descended from the general to the particular and contained four terms.”
What could be done with such a man? The story leaked out, with other tales about Gerard. How, when first captured, he had argued religion through the night with the Bishop of London’s chaplain, and had all but converted him. How, in Marshalsea prison, Gerard contrived secretly to celebrate Mass for the other Catholic, prisoners. How he got out on bail, escaped to France, and, returning, made his way through Norfolk by pretending to be a gentleman out looking for a lost hawk. (“Did you not hear his bell tinkle?” Gerard asked.) He could play at dice and cards and did not hesitate to do so when disguise seemed necessary. I nder his cloak and courtier’s dress he carried a gilt dagger and rapier, and under that a hair shirt, badge of the Jesuit.
Sir Richard Berkeley, Lieutenant of the Tower, lived in a little house within the walls. Here the examiners waited — Coke, Fleming, Bacon, Berkeley, and William Waad. Led from the Salt Tower uphill and across the Yard, Gerard entered the room wearing his priest’s robe. Coke, seated behind a table, was, as always, methodical. His questions, written out in legal form, asked nothing about religion or creed and were confined to matters political. Gerard denied everything. If he had corresponded with Jesuits abroad, the letters were concerned, he said, only with the financial assistance of Catholies living on the Continent. Where, he was asked, did the man live in England who received and forwarded these letters? “I do not know,” said Gerard, “and if I did, I could not and would not tell you.”
Coke next inquired the whereabouts of Father Henry Garnett, a famous Catholic missioner who bore, in the Jesuit order, the title Superior of the English Province; “You say,” Coke began, ‟you have no wish to obstruct the government. Tell us, then, where Father Garnett is. He is an enemy of the state and you are bound to report on all such men.”
Father Garnett was no enemy, Gerard replied. On the contrary, given opportunity, he would lay down his life for Queen and country. “But I do not know where he lives. And if I did, I could not and would not tell you.”
It, was a form of answer well known to the examiners &emdasg; the famous Jesuit equivocation. Taught at Rome as a justified doctrine and device, it effeetively blocked examination. Sir Richard Berkeley produced a warrant, for Gerard’s torture, which the prisoner promptly asked to see, “to make sure it was properly made out and signed.”
It was. His jailers led Gerard away. For three day’s the examiners waited in the Lieutenant’s house, sending from time to time to know if the prisoner had answered the questions. He had not. On the third morning, Waad went to the torture chamber, told Gerard he came straight from the Queen and Sir Robert Cecil, both of whom had sworn on their honor that Father Henry Garnett was a danger to the state and must be delivered up. Gerard merely shook his head. He was taken back to his cell.
Four weeks later, when he had recovered from the torture, he was again led to the Lieutenant’s house and confronted by the same men, with the exception of Bacon. By some means, Gerard had had a letter from Father Garnett, telling him to expect immediate trial and execution — “a gift which cannot,” Gerard wrote later, ‟be had for mere willing or striving and which my great unworthiness prevented.” He seemed calm, indifferent, wholly prepared, and as usual answered readily, up to a point.
“Yes,” he replied to the Attorney General’s question; he had “endeavored to seduce people from the faith approved by English law, over to the Rope’s allegiance.” No, he had not plotted against the government.
This, Coke retorted, was a paradox; it was impossible. “How could a man try to convert England and yet keep out of politics?” And what means had Gerard used to achieve his purpose? “Name the Catholics you know,” Coke said shortly. ‟Do you know X, and Y?”
‟I do not,” Gerard replied. “And if I did, I could not mention their names.”
Such equivocation, Coke interrupted angrily, not only countenanced lying but undermined all social intercourse between men. He had met it before, in Father Southwell’s trial, a ‟most wicked and horrible doctrine” which would barbarously supplant all justice and make perjury lawful.
Gerard disagreed. Equivocation, he said, differed from lying. Intent was not to deceive but simply to withhold truth which the questioned party was in no way bound to reveal. 8223;What,” asked Gerard, “would this board of examiners do if attacked by thieves who asked where their money was hidden?” In England, he went on, it was the custom of the accused to answer ‟Not guilty,” until witnesses were produced against him, or a verdict returned by the jury. No one condemned such practices as lying. Nevertheless, Gerard added, a witness examined concerning temporal matters had no right to use equivocation or to deny crime “if he be guilty and lawfully interrogated.”
On Coke’s asking what the prisoner considered lawful interrogation, Gerard said he meant interrogation concerning “action in some way harmful to the State.” Had not our Lord himself used equivocation when he told his Apostles he was not going up to Jerusalem for the feast, knowing all the time that he intended to go? And again, when he told the Twelve that none knew the Day of Judgment, not even the Son of Man? Here Waad broke in and the six men were suddenly involved in theological argument, an exercise seemingly irresistible to Elizabethans, at which a Jesuit could outdistance anybody except another Jesuit. Gerard was pleasantly sure he had won. “My examiners,” he wrote, “had practically no answer to make. But the Attorney General wrote down every word and said he would use it against me before very long when I came up for trial.”
8
THE Attorney General did indeed write down every word. Next day he sent it to Burghley, with a note pointing out the hopelessness of such examinations. Against the Jesuitical equivocation no weapon existed. ‟What desperate and damnable doctrine this is,” Coke exclaimed, “that taketh away the use of an oath that God hath appointed to be a mean to decide controversies!” A horrible abuse of the oath, Coke said, twisted thus to a man’s self-justification. “Strange opinion of these boy priests and devilish good Fathers!” He had, Coke went on, asked Gerard to write out his extraordinary defense of equivocation. Such “damnable and blasphemous heresies” should not be laid at a man’s door without his consent and signature. “But he denied [refused] the same, not because it is untrue but because he would not publish it. Then being requested to subscribe [sign] the same, he denied the same also.”
It was like putting on trial a fish, a bird, a salamander. A man no sooner had his finger on something than it slipped away, flew off, and was gone. To the legal mind, even perjury is hardly more baffling than silence. A silent defendant can be neither saved nor damned; he has set himself outside the law’s protection. The court is blocked, the wheels stop. Fidelis testis: the truthful witness stands at the heart of legal procedure. Not without reason (Coke would have said) did the common law punish a man who refused to be tried. In the Star Chamber, silence was taken for confession of guilt.
At the outset of Gerard’s examination, Coke had told him the questions would follow the phrasing and form to be used in the actual prosecution. The Jesuit’s answers made it plain not only that death was to him a matter indifferent and martyrdom a glory, but that he intended to make the trial into a farce. I did and I did not…. I do not know, and if I did I would not tell you. Devious, un-English performance, smelling of Spain, Rome, of a dark subtlety nourished beyond the Alps! Coke’s transcript of this Tower examination, enclosed in his letter to Burghley, found its way to Oxford and was the subject of a lecture by the Master of University College. ‟What natlily sophisticated men are these Jesuits!” said the Master. “They do their best, with shocking evasion, to bury the truth in a cloud of darkness.”
Only a cloud of darkness could save them. Puritans also, fleeing before Pilate, had their shifts and stratagems. Among the Queen’s College Manuscripts is a nonconformist paper entitled “Forms for Answering Interrogatories,” devised for use under the oath ex officio — “How to answer some facts and deny the rest … ‛ I did not to my memory do. … I do not know that I did or said any such thing. … I am upon oath and not you, and I pray you to forbear. Leave me to my conscience.’ ”
Leave me to my conscience: it is the eternal invocation of men taken prisoner for their religion. Yet courts, Coke would have said, cannot decide by conscience; to do so would expose the accused to the caprice of every judge upon the bench. In times of national strife the hearts of judges are no less hot than the hearts of those they sit to judge. Law, form, due procedure; these are the only hope of men standing in the dock. England had as yet no rules of evidence. Anything was accepted — hearsay, opinion, garbled recitation of gossip two years old. And on the presentation of evidence the prisoner’s fate depends; what is allowed, what overruled. “Strike it from t the record!” No prisoner of Coke’s day heard these words in his defense. Three centuries must pass before the law — and custom — evolved them, and the public could demand the protection therefrom accorded. The law changes slowly; Coke worked within the existing frame.
In the December Atlantic, we shall publish Mrs. Bowen’s exciting account of the trial of Sir Walter Ralegh for treason.
Copyright 1956, by The Atlantic Monthly Company, Boston 16, Mass. All rights reserved.