apprized of that resolution-sent for the Speaker: told him that "he had seen and considered of the manner and the matter: he had heard his Judges and Council, and that he was now distracted in judgment. Therefore for his further satisfaction he desired and commanded as an absolute King, that there might be a conference between the House and the Judges; and that for this purpose there might be a select Committee of grave and learned persons out of the House, and that his Council might be present, not as umpires to determine, but to report indifferently on both sides."

66

If there was any doubt before as to the expediency of the former resolution, there could be none now: for upon receiving this unexpected message," they consented at once, and very judiciously, to abandon it. They were indeed involved in a dilemma, out of which the only escape lay backwards: and the same member who had before been most vehement not only against conference, but apparently against compromise of any kind, was now foremost to retreat. "The Prince's command," said Yelverton (for it was he who first broke the silence), “is like a thunderbolt: his command upon our allegiance is like the roaring of a lion. To his command there is no contradiction. But how or in what manner we should now proceed to perform obedience, that will be the question." Another suggested that the King should be present himself at the conference, to hear, judge, and moderate the cause in person. And a select committee was thereupon appointed "to confer with the judges of the law touching the reasons of proceeding in Sir Francis Good. win's case,... in the presence of the Lords of his Majesty's Council; according to his Majesty's pleasure signified by Mr. Speaker this day to the House:" the Committee to "insist upon the fortification and explaining of the reasons and answers delivered unto his Majesty; and not proceed to any other argument or answer, what occasion soever moved in the time of that debate."

The next day being Good Friday, the House was adjourned for a week and did not meet again till the 11th of April. In the course of that day,-upon the return (I suppose) of the Committees from the conference,-Bacon, who had been spokesman, was called on for a report of what had passed; and when he replied that "he was not warranted to make any report,—and tantum permissum quantum commissum," it was ordered that the Committees should have another meeting for conference amongst themselves, and that he should then make his report. The note of which is in these words.

"Sir Francis Bacon, after the meeting of the Committees in

1 C. J. pp. 166, 943.

the Court of Wards, reporteth what had passed in conference in the presence of his Majesty and his Council.

The King said he would be President himself. This attendance renewed the remembrance of the last, when we departed with such admiration. It was the voice of God in man, the good spirit of God in the mouth of man: I do not say the voice of God, and not of man: I am not one of Herod's flatterers: a curse fell upon him that said it, a curse on him that suffered it. We might say, as was said to Solomon, We are glad O King that we give account to you, because you discern what is spoken. We let pass no moment of time until we had resolved and set down an answer in writing, which we now had ready: That sithence we received a message from his Majesty by Mr. Speaker, of two parts. 1. The one paternal. 2. The other royal. 1. That we were as dear unto him as the safety of his person or the preservation of his posterity: 2. Royal; that we should confer with his Judges, and that in the presence of himself and his Council: That we did more now to King James than ever was done since the Conquest, in giving account of our judgments: That we had no intent in all our proceedings to encounter his Majesty, or to impeach his honour or Prerogative.

This was spoken by way of preamble, by him you employed. How to report his Majesty's speeches he knew [not]. The eloquence of a King was inimitable.

The King addressed himself to him, as deputed by the House; and said he would make three parts of what he had to say: The cause of the meeting was to draw to an end the difference in Sir Francis Goodwyn's case.

If they required his absence, he was ready, because he feared he might be thought interessed and so breed an inequality on their part.

He said, That he would not hold his Prerogative, or honour, or receive any thing of any or all his subjects.-This was his magnanimity.

That he would confirm and ratify all just Privileges.-This his bounty and amity; as a King, royally; as King James, sweetly and kindly, out of his good nature.

One point was, Whether we were a Court of Record, and had power to judge of returns. As our Court had power, so had the Chancery, and that the Court that first had passed their judgment should not be controuled.

Upon a surmise, and upon the Sheriff's return, there grew a difference.

That there [were] two Powers, one permanent, the other transitory: That the Chancery was a confidentiary Court, to the use of the Parliament, during the time.

Whatsoever the Sheriff inserts beyond the authority of his mandate, a nugation.

The Parliaments of England not to be bound by a Sheriff's

return.

That our privileges were not in question: That it was private jealousies, without any kernel or substance. He granted it was a Court of Record and a Judge of returns. He moved that neither Sir John Fortescue nor Sir Francis Goodwyn might have place. Sir John losing place, his Majesty did meet us half way: That when there did arise a schism between a Pope and an Anti-Pope, there could be no end of the difference until they were both put down."

I have thought it better to give these notes exactly as I find them, because the words themselves are probably genuine and the context may sometimes be guessed. It will be seen however that they are not abstracts of what was spoken, but merely disjointed fragments, made to look continuous by the simple process of writing them out in sequence. The note-taker seems to have set down as much as he could follow sometimes the beginning of a sentence, sometimes the end; leaving gaps of all sorts and sizes: so that it is often difficult to assign the several sentences to the several speakers, or to make out so much as the general course of the argument.

:

In this case, however, we may gather that the King began by maintaining that the Court of Chancery and the House of Commons being both courts of record, with power to judge of returns, neither of them could be called in question by the other, and therefore that the first judgment must stand: to which Bacon answered on behalf the Commons, that the Chancery was a judge of the returns only for the purpose of making the House, which as soon as it was made became itself the judge: for otherwise, if the Chancery were governed by the Sheriff's return, and the House might not call the return in question, the sheriff's return did in effect bind the Parliament. It may be gathered further that upon this point (which was the material one), though the Judges were still prepared to contest it, the King was prepared to yield; but in order to settle the difference 1 C. J. p. 168.

more handsomely, proposed that the two Courts should meet each other half-way and therefore that both returns should be set aside, a new writ be issued, and a new election proceed :—that to this proposal (which was in accordance with his own former advice,-namely to content themselves with establishing their privilege, and avoid a contest with the King about the particular case) Bacon made no objection; but reported it to the House and recommended them to accede to it.

If in thus entertaining the question of a compromise he a little exceeded his commission (and exception was taken to his report on that ground by some members, as "drawing upon the House a note of inconsistency and levity") it was a wise liberty and well accepted by the great majority: for "the acclamation of the House was, that it was a testimony of their duty, and no levity;" and it was forthwith resolved (Sir Francis Goodwin's formal consent having been first obtained) to issue a writ for a new election and to send a message of thanks to the King: which was delivered accordingly on the 12th of April, and accepted very graciously. And so that business ended.

It was a good example to show how such differences might be successfully and satisfactorily arranged. For the privilege was never afterwards called in question: and in the meantime the concession, which was in itself quite immaterial, satisfied the King: who, though jealous of his Prerogative, does not appear to have had any intention of interfering with their liberties; but would have been ready, I think, to settle all such questions almost as they would, so long as he was allowed to feel that in assenting to their petitions he was using his Prerogative and not abandoning it.

2.

While this was going on, the House had another privilege-dispute on hand, which (though the occasion was not so critical-the difference being with meaner persons, and neither King nor Lords nor Chancery being concerned in it) gave them more trouble and threatened at one time to drive them into violent measures. A full account of all the proceedings (fragmentary notices of which are thickly scattered through the Journals, from the 22nd of March to 1 C. J. p. 171.

2 From a MS. in the Cotton Collection in the handwriting of Ralph Starkey,copied perhaps from Sir R. Cotton's own notes-it would seem that the Judges were still prepared to stand by their original opinion, and that the proposal of the compromise came from the King himself. "The King propounded the reasons and precedents to the Judges, who agreed unto them; and my Lord Chief Justice was about to disprove by another reason that Sir F. G. was not duly chosen. Hereupon the King, desirous to compromit the matter, made offer to the Lower House to be contented that Sir Francis should not be also, and that a new writ should be sent out," etc. Cott. MSS. Tit. F. iv. fo. 4, b.

the 15th of May) would make too long a story: but enough to explain Bacon's part in them may be casily told.

On the day of the King's solemn entry into London (15 March) Sir Thomas Shirley, attending by command and being a member of Parliament, had been arrested for debt at the suit of a goldsmith named Sympson (the same I presume who arrested Bacon in 15981), and sent to the Fleet. The detention of a member from the House was a breach of Privilege, and being complained of as such, and the parties being sent for and heard at the Bar (27 March), was referred to a select committee: upon whose report (11 April) it was resolved that the arrest was a wilful contempt, and that both Sympson and the serjeant whom he employed should be committed to the Tower for it. But because the delivery of Sir Thomas out of prison involved some doubtful questions of law, they agreed that before proceeding further the counsel of the parties should be heard.

The doubt in law was whether the Warden of the Fleet, if he let his prisoner go, would not become answerable to his creditor for what he owed; and (opinions differing) it was judged best, before demanding the delivery of Sir Thomas, to put the matter out of doubt by passing a special act for securing to Sympson the interest in his debt and saving the Warden harmless. A bill for this purpose was accordingly brought in on the 17th of April, and passed and sent up to the Lords on the 21st:2 and they were on the point of petitioning the King (4 May) for a written promise that he would give his assent to it, when it was objected that such a proceeding would be "some impeachment to the privilege of the House." So no doubt it would. By going so far out of their way to ensure the Warden before they demanded the release of their member, they would seem to admit by implication that they could not legally demand him without such assurance. The caution being approved, and their intention having been made sufficiently clear, they proceeded at once to serve the Warden with a writ of Habeas Corpus for bringing Sir Thomas's body into the House the next morning. And here began the difficulty. The Warden, not considering himself safe till the bill had become a law, refused to obey the writ until it had received the royal assent. The Commons could not allow such a condition without creating a precedent dangerous to their privilege. And what was to be done?

In the first place the Warden was called to the Bar and questioned. Persisting in his refusal, he was detained for that day in the custody of the Serjeant-at-arms; and (not to lose the chance of any better thoughts which the night might bring) a second demand for the body of Sir Thomas was made in due form the next morning; but with the 'See Vol. II. p. 106. 2 C. J. p. 180.