Literary works can be used to cast light upon the workings of the legal system. A work of fiction, even a novel set in Shakespearean times, can have much to say about current issues and the fate of a nation. Let me explore these possibilities by turning to a novel I wrote some years ago called Arbella’s Baby. I was a judge at that time, so the book was published under a nom de plume—Margaret Martin—with a view to avoiding controversy.
The novel is set in the reigns of Elizabeth I and her successor in 1603, the Scottish king, James I, son of Mary Queen of Scots. The murder mystery at the centre of the story is gradually unravelled by the famous essayist and jurist Sir Francis Bacon—a former legal adviser to both monarchs—and by his youthful companion, Thomas Hobbes. The reader is led to believe that what Hobbes learnt in Bacon’s company affected what he said later about governance in the aftermath of the Civil War.
The story opens in London:
This in Exodus: “Thou shalt not suffer a witch to live.” Such a text was an article of faith in England once, for without a witch to work his venom that old serpent Satan was bound to languish in his sulphur pit, a scourge to none but himself. But with the aid of an ally, so it was held, he was ever amongst us, sowing iniquities, harvesting common folk to his cause.
You must dwell upon these old times and practices as I, Thomas Hobbes, after many years in exile, acquaint you with a mystery that bedevilled my youth and came close to breaking my spirit: a puzzle that came upon me in this way.
It was customary upon the Feast of St Bartholemew to erect tents upon the green at Clerkenwell for sports and pastimes—wrestling, juggling, archery, and more. Here, the bailiffs, sergeants, yeomen, porters of the King’s beam and others of prowess would challenge all men in the suburbs to wrestling matches and on the vacant ground nearby to shoot the standard arrow and compete for prizes.
And so it was, on such an afternoon, that one custom intersected with another. For stewards of the shooting match, in search of targets, had gone off to commandeer tubs and barrels from adjoining houses. Imagine, then, their panic, the horror of it, after struggling to upend a water-butt, when a dead woman, half-naked, was suddenly glimpsed and came tumbling out. At them like a thing possessed, they said. Out of the barrel in a rush, all legs and feet, and finished up flopping on the ground before them. There in a puddle, in the silent courtyard.
She was known to her neighbours, of course, the dead one, and known principally for this: she was Ellen Courtney and not so long ago had been a maid to the Lady Arbella Stuart, that notorious lady of royal blood in the house of Tudor, a claimant to the throne! But news of the dead maid’s identity was quickly overtaken by the murmuring that arose. For the victim’s arms were bound across her chest. The bruises below suggested that a rope had been tied around her middle.
“Afore she was hidden,” one of the archers surmised, glancing fearfully at the faces around him. “She been dunked in a pond for a witch!”
“Aye,” another whispered. “For to see if she sink or swim.”
An investigation into the death is set in motion by the local sheriff and his powerful superior, the Clerk of Appearances from the Court of Star Chamber, a forum renowned for its iniquitous procedures. The Clerk calls upon Bacon and Hobbes to assist. We learn that Bacon is keen to assist because he has fallen out of favour with King James for taking bribes while serving as a judge. Bacon foresees that the investigation will be a way of regaining his former prestige because there are certain features of the case which seem to suggest that a conspiracy is afoot to overthrow the King.
A manuscript found at the lodgings of the dead maid, Ellen Courtney, establishes that at the time the childless Queen Elizabeth died there were two potential successors to the English throne with connections to the Tudor line—James I of Scotland and Arbella Stuart. The latter, a niece of Mary Queen of Scots, had the advantage of being born in England.
It emerges that some years before the story opens Arbella, the unsuccessful claimant, was condemned by James I to the Tower of London where she died. But it seems from the mysterious Courtney manuscript that Arbella may have had a baby—hence the novel’s title—who is now a grown man. He could be planning to overthrow King James and seize the throne that his mother should have had.
In looking at the possibility of a conspiracy against King James, the ambitious Sir Francis Bacon gives particular weight to a scrap of verse in the manuscript which appears to have been written by Arbella, because it points to the old law which favours a claimant to the throne who was born in England:
Look for this upon my heart,
Old Law is lost in woman’s art,
Discover this upon my breath,
My claim at birth I won in death.
For present purposes, I will skip over the various twists and turns of the plot as the investigation proceeds, save only to say that the mysterious and apparently seditious Courtney manuscript found at the victim’s lodging contains clues affecting the course of the investigation and the eventual outcome.
It is said in the manuscript (at page 74 of the novel):
Pamphleteers were alert to what was happening. Conversant with the reasoning of Machiavelli in his Discourses on Livy, and the precepts of Bacon in his essay on Sedition, the scribes of London were hinting in their crudely-printed broadsheets that when discords are proclaimed openly it is a clear sign that respect for government is lost. Anarchy would ensue unless reforms were undertaken promptly to remove the cause of discontent, or the ruler’s principal opponent was removed by resolute action.
There is a further passage to this effect (page 122):
Perpetuity by generation is common to beasts, according to the famous essayist Sir Francis Bacon, but memory, merit and noble works are proper to mankind. And surely we can see that some of the most striking works have proceeded from childless men and women who have sought to express the images of their minds where those of their bodies have failed. So the care of posterity is most in them that have no posterity of their own flesh and blood, for even unwanted babies, though they greatly increase the cares of life, represent the future and mitigate the remembrance of death.
It should not be thought surprising, then, in the case of a childless Queen, that in the aftermath of her death discord of the usual kind should centre not upon the absent issue of her body but be expressed in essays, tracts and images: the products of ingenious minds.
And so, let it be noted, that within three days of the Queen’s passing, officials of the High Court of Star Chamber were obliged to suppress a scurrilous broadsheet being passed from hand to hand in the ale-houses of the East End, along the docks, and carried onwards by talkative boatmen on the Thames. In form, a crudely-printed publication attributed to “A Lady’s Maid’”, bearing the facetious title “The Lady Arbella Stuart’s Lament”; in its implications—a refrain that was bound to resonate in years to come.
The broadsheet presented to its readers, in miniature, an obscene sketch of a young male in a state of arousal, to illustrate a bawdy piece of verse: “Sing we and chant it / While love doth grant it, / Made long, youth’s part, / Upraised by woman’s art. / Now is best leisure / To take our pleasure. / The issue of his seed, / Will meet our need.
I mentioned earlier that the investigation was set in motion by the Clerk of Appearances, a powerful official attached to the Court of Star Chamber, renowned for its draconian practices. It emerges eventually (from the various twists and turns of the plot) that the Machiavellian Clerk may have skilfully undermined the Bacon–Hobbes inquiry by planting the Courtney manuscript at the murder scene. A conspiracy is afoot but—contrary to Bacon’s initial and somewhat hasty surmise—not necessarily against the King.
The scene is set for some further revelations (at page 256) when the daughter of Old Bess, the Countess of Shrewsbury, says this to Thomas Hobbes about his mentor, Sir Francis Bacon:
“He betrayed the Earl of Essex. He took steps to ensure Sir Walter Raleigh was beheaded. He abandoned Lady Hatton. He prosecuted Coke. Arbella went mad in the Tower while he was Attorney General. He condemned and humiliated me. To many people at Court, he is simply a catch fart behind the throne who will stop at nothing to serve his own ambition, which is why so many people are inclined to hate him … A former Lord Chancellor, you say! Look at the facts of his downfall eighteen months ago. At the height of his influence, he is accused of taking bribes. Were they large amounts to meet pressing debts? No. Far from it … On some occasions, it seems, he took bribes on both sides of the case. And then, having been bribed, he failed to deliver.”
She gave a hideous laugh. “The chicanery of it! The effrontery! Did he offer an explanation when accused? Was he willing to defend himself? No. A quick, insincere confession, followed by a speedy resignation to abate the harshness of the penalty. Why so? To appease the King. Because he could see a chance to reinstate himself when the dust settled. Ponder his servile plea to the incumbent! Those of us who hold him in contempt have it by heart. ‘I have been ever your man, your Majesty, and always but a lessee of myself, the property in me being yours.’ I have it on good authority that even the Clerk of Appearances was disgusted by this abject crawling.”
The Countess used her hand to scribble madly in the air. “Read your manuscript! You will see your own fate mirrored in its pages, and the fate of the mirror-maker. We are speaking of death, and death’s appearance, line by line. Till the end comes, as it comes to us all.”
A little later the youthful Thomas Hobbes stands by within the Star Chamber as the Clerk of Appearances and Sir Francis Bacon confront each other. Now, at last, the real issues emerge, as Bacon realises that he is the victim of the Clerk’s entrapment and berates his adversary (page 281):
“There is one thing sticking out of this like an ugly wart—me and my companion, Mr Hobbes, have been hoodwinked. Utterly deceived. Told lies by you about the order of events. It was you who told us that Ellen Courtney’s body was discovered first. You led us to believe that some sinister plan might still be unfolding, and the subsequent discovery of Miller’s body, supposedly, seemed to corroborate your reckoning. To all of this you added talk of miniatures and manuscripts that seemed to link the killings to the Lady Arbella Stuart and her circle of friends, and thus to a potential conspiracy against the crown. You spoke of a landlady observing signs of agitation when a package was received at Courtney’s lodgings. And you put together a similar pack of lies concerning Miller, when clearly, it now appears, all of this was false, contrived by you to lead us astray. What explanation can you give for all of this? Do I take it that you yourself are the author of the insidious manuscripts that have bedevilled us in recent days?”
The Clerk leaned forward, and answered calmly. “I am that author.”
The two men, with the narrator, Thomas Hobbes, still looking on, lock horns:
Now, at last, the grim reality of what he was hearing seemed to settle upon my Lordship’s shoulders. “You are against me,” Sir Francis breathed. “You are totally against me, and have been committed to that course for more than a year. Longer, perhaps. How can this be? Is Coke behind it? Have you joined my enemies?”
The Clerk would make no such admission. “I am my own man,” he said. “As you have always urged me to be. I am standing up for what is best.”
“And what is that, pray? This ‘best’ you mention.”
“You are unfit for office. I am the only one, it seems, with sufficient skill and subtlety to make you heed that lesson.”
“You are referring to the charges of corruption brought against me?”
The Clerk nodded. “Precisely.”
“The matter has been dealt with. I confessed my fault. I explained that, like so many, I was frail, and partook of the abuse of the times. A form of misconduct condoned by many others, I remind you. I was fined forty thousand pounds. Put in prison briefly. Denied the right to come here to Westminster. It is over and done with.”
The Clerk shook his head sadly. “It is not over. No. You observed the usual proprieties, and acted out the posture of contrition. But without truly and inwardly acknowledging your guilt. You, a master essayist, a famous jurist, who has written so sagely about the need for integrity in judges, have sought to gloss over and excuse yourself from your own precepts—as though the elegance of your expression matters more than the substance. And now, after a very brief respite, as I knew you would, you seek to return to the scene of your pickings—unrepentant, ready to start again.”
The Clerk picked up a page that had been lying on the table at his elbow. “I will quote from your letter of resignation to the King. You said this: ‘I have been ever your man, your Majesty, and always but a lessee of myself, the property in myself being yours’.”
With a weary gesture, the Clerk returned the sheet of paper to its place on the table. “Is that a letter for a judge to write? Surely not. If the illustrious Lord Bacon, Keeper of the Great Seal, cannot grasp the import of conventional punishment, and discover in himself a sense of shame, others must impose the lesson. If he, of all people, seems to have a blankness in him at the core, a blankness brought about, no doubt, by too much abstract thinking, by allowing the generalisations you call your thoughts to venture forth in all directions without an anchorage, the blankness will have to be written upon in the only way Lord Bacon understands—by making the reasons for his fall quite plain to him.”
The Clerk then goes further and says this (page 286):
“Sir Edward Coke, for all his faults, has stood up many times against the King to ensure that laws are not bent by servility or too much special pleading. He is now a worthy guardian of the people’s rights. You are none. And thus I am here to condemn you. Not from enmity, although I have been shamed in your presence, but in defence of what is right. Your name that was once a whet-stone in the courts to sharpen the sword of justice will sharpen nothing now.”
Sir Francis shifted in his seat, seeming to sit up straighter, as he was wont to do when he saw an opening. Unwisely, the Clerk had moved the battle to a larger field, the realm of general jurisprudence, this being familiar ground to the disgraced Lord Chancellor. A place of strength.
“Pause a little,” Sir Francis remarked. “You seem to accept that rights can be wrested from rulers not only by force but also by entreaty. What does that suggest? Each era calls for a different cure. My father’s style as Lord Keeper in the Tudor age may not suit our present time when a Stuart king is lolling on the throne. To my mind, we are camped at a crossroads marked by chaos and increasing instability. To keep the road open, the unruly in their place, advisers with finesse and flexibility are now required. Do you want a counsellor to be so good that he is good for nothing? It is not possible to join the wisdom of the serpent with the innocence of the dove, except that men be perfectly acquainted with the nature of evil itself. Without such knowledge a virtuous adviser can do no good upon those that are wicked, to correct and reclaim them. And thus I am not abashed to be acquainted with the ways of men and women, and all their foibles.”
He smiled calmly. “We must be conscious of an ever-present hunger for self-interest in ourselves and learn to adjust it to the public good. How is all this to be effected? It is best that men in their innovations follow the example which proceeds quietly, by degrees, and is scarcely perceived. And thus, he who insists upon changes or the grant of some new right, and wants the innovations to be acceptable, will be well-advised to retain the shadow of ancient rights and customs, so that the rules applied by courts and clerks appear the same, as if not altered. People are usually more affected by what a thing appears to be than what it is, and they are inclined to act accordingly.”
Sir Francis rose to his feet, and with a mocking glance bowed to his accuser. “One can stand upon a platform, proclaim the people’s rights, and beat a drum. Is that enough? Salus populi suprema lex. The overriding law is the will of the people. Let no man weakly conceive that just laws and policies designed to respond to changing times have any antipathy; for they are like the spirits and sinews, that one moves with the other. Let courts remember also that Solomon’s throne was supported by lions on both sides. Let judges be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty. For a ruler without authority will rule in the grave, and a state without cohesion will sink into a similar hole.”
He placed both hands upon the table and leaned in to face the Clerk. “You have had your way. I am defeated. I accept your verdict. But I notice in your censure an over-zealous tone, a kind of fanaticism, which to me spells danger. Rights and liberties are worthless if the body housing them is swept away, and that will happen if innovations are effected helter skelter, without room for compromise, without finesse. Let me say it plainly. Without my counsel at his elbow, this King will overreach himself and refuse to accept the changes that are necessary. The unresolved points of friction will fester and weaken the authority of the state; whereupon there will be a civil war. In that, the monarch of the day is bound to be executed, and blood will be shed throughout the land. This will be paid for by those you claim to represent—the people. And at the end of it all, after the madness has abated, a monarch will be brought back to the throne for stability’s sake, in accordance with our ancient customs.”
He stood upright and with a movement of his hand encouraged me to join him. “You have called this a court,” he said, speaking directly to the Clerk. “No matter what you call it, I stand more for the people’s liberties than does your court. My faults are human. If an heir to the throne, the Lady Arbella Stuart, and a former Keeper of the Great Seal, Sir Francis Bacon, can be condemned at will. If they can have their reputations ruined in a court like this, laid low by the poisonous pen of a Clerk whose specialty is dealing in appearances: what ordinary man or woman is safe?”
At which, he turned and spoke to me before departing. “Where do you stand on this?” he asked. “Are you with me?”
In a final chapter of the novel Thomas Hobbes sets out where he came to rest in answer to his mentor’s question (page 293):
Certainly, we shall never know what might have happened if Sir Francis Bacon had been restored to favour with James I, and provided the crown with skilled advice as to how he should handle his increasingly fractious parliament. The punishment imposed by the Clerk of Appearances was entirely successful. Sir Francis spent the remainder of his life in obscurity; writing busily; pursuing his researches.
From birth, and ever afterwards, he had an incomparable capacity to make sense of and find a way through every ambiguity, legal and political. He was ingenious. He was eloquent. He had the ability to sum up in pithy aphorisms complex thoughts. When it came to what it was wise and fitting for the King to do, he was for the most part right. He foresaw the coming of the civil war, and tried to avert it.
And yet, there was something in the sophistry of his reasoning which eventually rendered him ambiguous within himself, and prone to shameful actions. In the meantime, and in the years that followed his downfall, his less urbane rival, Sir Edward Coke, grew in stature. By the time Coke died, his stand for the independence of the judiciary and the rule of law had made him famous among his contemporaries.
For myself, however, I have always been wary of applauding those who are generally applauded, for widespread acclamation usually means that the beneficiary is granted a special kind of prosperity by public opinion, and grows fat and self-centred. I prefer the insights of my mentor, his grit. Perhaps it was this kind of sceptical wisdom which drew me to him in the first place, and kept me faithful to him in his darkest days.
Thomas Hobbes (in the novel) noted that for all his faults, Bacon was far-sighted in foreseeing the approach of civil war and Cromwellian rule. He tried to avert it. Hobbes himself, in actuality—as a matter of real history—sought to bring his political philosophy to the English audience with the publication of Leviathan in 1651. This was to be his most powerful restatement of government grounded not on superstitious or religious doctrines, such as the divine right of kings (as expounded by King James I), but upon a pragmatic compact between the people who were ruled and a sovereign authority that would protect the citizenry and secure the peace—a precursor of the modern state.
Attentive readers will discern that in certain places, in order to reflect their reasoning, I have drawn directly upon the writings of both Hobbes and Bacon. With touchstones in reality of that kind before me, let me close by quoting from John Aubrey’s account of the relationship in Brief Lives:
The Lord Chancellor Lord Bacon loved to converse with Mr Hobbes. His lordship was a very contemplative person, and was wont to contemplate in his delicious walks at Gorhambury, and to dictate to the gentlemen that attended him with ink and paper, ready to set down at once his thoughts. His lordship would often say that he better liked Mr Hobbes taking his thoughts than any of the others, because Hobbes understood what he wrote.
A novel can point the way to understanding, but in the end, if the interest of a reader is aroused by what is suggested, one must turn to legal texts and well-researched works of history for the proper story.
Nicholas Hasluck’s latest novel The Bradshaw Case looks at a native title claim affected by ancient Aboriginal rock art. This article is an edited version of a paper presented to the School of Law and Justice, Southern Cross University, in May.