St John was summoned before the Star Chamber for slander and treasonable language; and Bacon, ex officio, acted as public prosecutor. The sentence pronounced (a fine of £5000 and imprisonment for life) was severe, but it was not actually inflicted, and probably was not intended to be carried out, the success of the prosecution being all that was desired. St John remained a short time in prison, and was then released, after making a full apology and submission. The fine was remitted. It seems incredible that Bacon's conduct on this occasion should have been censured by his biographers. The offence was clear; the law was undoubted; no particular sympathy was excited for the culprit; the sentence was not carried out; and Bacon did only what any one in his place would naturally and necessarily have done. The nature of his office involved him in several trials for treason occurring about the same time, and one of these is of interest sufficient to require a somewhat longer examination. Edmund Peacham had been committed to custody for a libel on his superior, James Montagu (1568?-1618), bishop of Bath and Wells. In searching his house for certain papers, the officers came upon some loose sheets stitched together in the form of a sermon, the contents of which were of such a nature that it was judged right to lay them before the council.
As it was at first suspected that the writing of this book had been prompted by some disaffected persons, Peacham was interrogated, and after he had declined to give any information, was subjected to torture. Bacon, as one of the learned counsel, was ordered by the council to take part in this examination, which was undoubtedly warranted by precedent, whatever may now be thought of it. Nothing, however, was extracted from Peacham in this way, and it was resolved to proceed against him for treason. Now, in the excited state of popular feeling at that period, the failure of government to substantiate an accusation of treason would have been a serious matter. The king, with whom the council agreed, seems therefore to have thought it desirable to obtain beforehand the opinions of the four chief judges as to whether the alleged offence amounted to treason. In this there was nothing unusual or illegal, and no objection would at that time have been made to it, but James introduced a certain innovation; he proposed that the opinions of the four judges should be given separately and in private. It may be reasonably inferred that his motive for this was the suspicion, or it may be the knowledge, that Coke did not consider the matter treasonable.
At all events when Coke, who as a councillor already knew the facts of the case, was consulted regarding the new proposal of the king, he at once objected to it, saying that "this particular and auricular taking of opinions" was "new and dangerous," and "not according to the custom of the realm." He at last reluctantly assented, and proposed that Bacon should consult with him, while the other law officers addressed themselves to the three puisne judges. By Bacon's directions the proposal to the three judges to give their opinions separately was made suddenly and confidently, and any scruples they might have felt were easily overcome. The first step was thus gained, and it was hoped that if "infusion" could be avoided, if the papers bearing on the case were presented to the judges quickly, and before their minds could be swayed by extraneous influence, their decision on the case would be the same as that of the king. It is clear that the extraneous influence to be feared was Coke, who, on being addressed by Bacon, again objected to giving his opinion separately, and even seemed to hope that his brother judges after they had seen the papers would withdraw their assent to giving their decisions privately.
Even after the discussion of the case with Bacon, he would not give his opinion until the others had handed in theirs. What the other judges thought is not definitely known, but Bacon appears to have been unable to put in operation the plan he had devised for swaying Coke's judgment, or if he did attempt it, he was unsuccessful, for Coke finally gave an opinion consistent with what he seems to have held at first, that the book was not treasonable, as it did not disable the king's title. Although the opinions of the judges were not made public, yet as we learn, not only from Bacon, but from a sentence in one of Carleton's letters, a rumour had got about that there was doubt as to the book being treasonable. Under these circumstances, Bacon, who feared that such a report might incite other people to attempt a similar offence, proposed to the king that a second rumour should be circulated in order to destroy the impression caused by the first. "I do think it necessary," he says, "that because we live in an age in which no counsel is kept, and that it is true there is some bruit abroad that the judges of the king's bench do doubt of the case that it should not be treason, that it be given out constantly, and yet as it were in secret, and so a fame to slide, that the doubt was only upon the publication, in that it was never published.
For that (if your majesty marketh it) taketh away or at least qualifieth the danger of the example; for that will be no man's case." Bacon's conduct in this matter has been curiously misrepresented. He has been accused of torturing the prisoner, and of tampering with the judges by consulting them before the trial; nay, he is even represented as selecting this poor clergyman to serve for an example to terrify the disaffected, as breaking into his study and finding there a sermon never intended to be preached, which merely encouraged the people to resist tyranny. All this lavish condemnation rests on a complete misconception of the case. If any blame attaches to him, it must arise either from his endeavour to force Coke to a favourable decision, in which he was in all probability prompted by a feeling, not uncommon with him, that a matter of state policy was in danger of being sacrificed to some senseless legal quibble or precedent, or from his advice to the king that a rumour should be set afloat which was not strictly true.