If, therefore, Bacon did no more than these rules required of him, we shall readily admit that he was blameless, or, at least, excusable. But we conceive that his conduct was not justifiable according to any professional rules that now exist, or that ever existed in England. It has always been held that, in criminal cases in which the prisoner was denied the help of counsel, and above all, in capital cases, advocates were both entitled and bound to exercise a discretion. It is true that after the Revolution, when the Parliament began to make inquisition for the innocent blood which had been shed by the last Stuarts, a feeble attempt was made to defend the lawyers who had been accomplices in the murder of Sir Thomas Armstrong, on the ground that they had only acted professionally. The wretched sophism was silenced by the execrations of the House of Commons. "Things will never be well done," said Mr. Foley, "till some of that profession be made examples." "We have a new sort of monsters in the world," said the younger Hampden, "haranguing a man to death. These I call bloodhounds. Sawyer is very criminal and guilty of this murder."
"I speak to discharge my conscience," said Mr. Garroway. "I will not have the blood of this man at my door. Sawyer demanded judgment against him and execution. I believe him guilty of the death of this man. Do what you will with him." "If the profession of the law," said the elder Hampden, "gives a man authority to murder at this rate, it is the interest of all men to rise and exterminate that profession." Nor was this language held only by unlearned country gentlemen. Sir William Williams, one of the ablest and most unscrupulous lawyers of the age, took the same view of the case. He had not hesitated, he said, to take part in the prosecution of the Bishops, because they were allowed counsel. But he maintained that, where the prisoner was not allowed counsel the Counsel for the Crown was bound to exercise a discretion, and that every lawyer who neglected this distinction was a betrayer of the law. But it is unnecessary to cite authority. It is known to everybody who has ever looked into a court of quarter-sessions that lawyers do exercise a discretion in criminal cases; and it is plain to every man of common sense that, if they did not exercise such a discretion, they would be a more hateful body of men than those bravoes who used to hire out their stilettoes in Italy.
Bacon appeared against a man who was indeed guilty of a great offence, but who had been his benefactor and friend. He did more than this. Nay, he did more than a person who had never seen Essex would have been justified in doing. He employed all the art of an advocate in order to make the prisoner's conduct appear more inexcusable and more dangerous to the State than it really had been. All that professional duty could, in any case, have required of him would have been to conduct the cause so as to ensure a conviction. But from the nature of the circumstances there could not be the smallest doubt that the Earl would be found guilty. The character of the crime was unequivocal. It had been committed recently, in broad daylight, in the streets of the capital, in the presence of thousands. If ever there was an occasion on which an advocate had no temptation to resort to extraneous topics, for the purpose of blinding the judgment and inflaming the passions of a tribunal, this was that occasion.
Why then resort to arguments which, while they could add nothing to the strength of the case, considered in a legal point of view, tended to aggravate the moral guilt of the fatal enterprise, and to excite fear and resentment in that quarter from which alone the Earl could now expect mercy? Why remind the audience of the arts of the ancient tyrants? Why deny what everybody knew to be the truth, that: a powerful faction at Court had long sought to effect the ruin of the prisoner? Why above all, institute a parallel between the unhappy culprit and the most wicked and most successful rebel of the age? Was it absolutely impossible to do all that professional duty required without reminding a jealous sovereign of the League, of the barricades, and of all the humiliations which a too powerful subject had heaped on Henry the Third?
But if we admit the plea which Mr. Montagu urges in defence of what Bacon did as an advocate, what shall we say of the Declaration of the Treasons of Robert, Earl of Essex? Here at least there was no pretence of professional obligation. Even those who may think it the duty of a lawyer to hang, draw, and quarter his benefactors, for a proper consideration, will hardly say that it is his duty to write abusive pamphlets against them, after they are in their graves. Bacon excused himself by saying that he was not answerable for the matter of the book, and that he furnished only the language. But why did he endow such purposes with words? Could no hack writer, without virtue or shame, be found to exaggerate the errors, already so dearly expiated, of a gentle and noble spirit? Every age produces those links between the man and the baboon. Every age is fertile of Oldmixons, of Kenricks, and of Antony Pasquins. But was it for Bacon so to prostitute his intellect? Could he not feel that, while he rounded and pointed some period dictated by the envy of Cecil, or gave a plausible form to some slander invented by the dastardly malignity of Cobham; he was not sinning merely against his friend's honour and his own? Could he not feel that letters, eloquence, philosophy, were all degraded in his degradation?