1621.] DEBATE ON QUESTION OF PUNISHMENT. 269 L. CHAMBERLAIN. To fine, ransom, imprisonment. Uncapable of any public office, etc. Not to be degraded. SOUTHAMPTON. We cannot guide our sentence by any precedent, to make an example of this such as posterity may give us thanks for Banishment or not? Degradation? Opinion that he is fit to be degraded, being made uncapable of any office in the State or Commonwealth. At the least to be degraded during life, and banished from ever coming near the Court. RICHMOND. Against degradation. SPENCER. A man may be attainted, and yet his honour remain, and alleged precedents of many. SAY. Prout antea pro vita. L. CHAMBERLAIN. Put it to the question whether to be degraded durante vita. SOUTHAMPTON. Not to be banished, though worthy. loss of office, etc, No honour touched here, but by way of Bill only. Agrees with the L. Chamberlain. CAMBRIDGE. Agrees to all save degradation, for that he hath made so clear and ingenuous confession, which men of his sort do not. Agrees with L. Chamberlain. PRINCE. Agrees with Cambridge. CAMBRIDGE. The Lord Chancellor never to sit here, nor come near the court. ARUNDEL. Idem cum L. Treasurer, not to be degraded here, which is not usual but by way of bill. To be put to the question. DURESME. Not to be degraded, as he may remember from whence he hath fallen. SOUTHAMPTON. Whether he whom this House thinks unfit to be a constable shall come to the Parliament ? He never to come to Parliament again.1 L. ADMIRAL. 2 The Lord Chancellor so sick that he cannot live long. SOUTHAMPTON. The House resumed. L. CH. JUSTICE. Question, whether the L. Chancellor L. CHAMBERLAIN. We agree he lose his place in Parliament during life.3 Question. Whether the Viscount St. Albans shall be suspended of all his titles of nobility during his life, or no? Agreed per plures, not to be suspended, etc. 1. The fine and ransom, 40,000l. 2. Imprisonment during the King's pleasure in the Tower. 3. Uncapable of any office, place, or employment in the State or Commonwealth. 4. Never to sit in Parliament, nor to come within the verge of the Court. 1 (marginal note) Agreed. 2 Buckingham. 3 Agreed. Put to the question, whether these punishments above shall be inflicted upon the L. Viscount St. Alban or no? This was the whole judicial proceeding. It remained only to pronounce the sentence,-which was done with due ceremony, as described in the journals. "The Lords having agreed upon the sentence to be given against the Lord Chancellor, did send a message to the House of Commons, Serjeant Crew, by {Mr. Serjeant Hitcham: That the Lords are ready to give judgment against the Lord Viscount St. Alban, Lord Chancellor, if they, with their Speaker, will come to demand it. In the mean time the Lords put on their robes; and answer being returned of this message and the Commons come; The Speaker came to the Bar, and, making three low obeisances, said, The Knights, Citizens, and Burgesses of the Commons House of Parliament, have made complaint unto your Lordships of many exorbitant offences of bribery and corruption committed by the Lord Chancellor. We understand that your Lordships are ready to give judgment upon him for the same. Wherefore I, their Speaker, in their name, do humbly demand and pray judgment against him the Lord Chancellor, as the nature of his offence and demerits do require.' The Lord Chief Justice answered: Mr. Speaker, upon the complaint of the Commons against the Lord Viscount St. Alban, Lord Chancellor, this High Court hath thereby, and by his own confession, found him guilty of the crimes and corruptions complained of by the Commons, and of sundry other crimes and corruptions of like nature. And therefore this High Court (having first summoned him to attend, and having received his excuse of not attending by reason of infirmity and sickness, which he protested was not feigned, or else he would most willingly have attended) doth nevertheless think fit to proceed to judgment; and therefore this High Court doth adjudge: 1. That the Lord Viscount St. Alban, Lord Chancellor of England, shall undergo fine and ransom of forty thousand pounds. 2. That he shall be imprisoned in the Tower during the King's pleasure. 3. That he shall for ever be incapable of any office, place, or employment in the State or Commonwealth. 4. That he shall never sit in Parliament, nor come within the verge of the Court.2 1 Elsing, pp. 60-64. 2 Clarendon must have forgotten this judgment when, speaking of the impeachment of the Earl of Middlesex three years after, he says: "But the Duke's This is the judgment and resolution of this High Court." 271 The Prince his Highness was entreated by the House, that, accompanied with divers of the Lords of this House, he would be pleased to present this sentence given against the late Lord Chancellor unto his Majesty. His Highness was pleased to yield unto this request.1 13. "There is a judicature for impeachment," says Hargrave in his preface to Hale's' Jurisdiction of the House of Lords,' " and under it, on the one hand, the Commons, as the great representative inquest of the nation, first find the crime, and afterwards, acting as prosecutors, endeavour to support their finding before the Lords; whilst, on the other hand, the Lords exercise the function both of Judge and Jury, in trial of the cause and in deciding upon it." It appears however according to the same authority that the Lords had not been called on to perform this office for 200 years. "From the 3rd of Henry V. to the accession of James I., there appears to have been little exercise of judicature in Parliament civilly, or indeed criminally; unless the cruel precedents of acts of attainder without hearing the accused, and the indulgent precedents of acts of restitution without assignment of errors, of both of which the number is great, are fit to be considered as judicial records." 2 First attempts should not be judged too severely, and this was the first attempt of the persons then composing the House of Lords to exercise the combined offices of Judge and Jury. Not having either precedents of their own to follow or analogous proceedings in other courts to imitate; being untrained in judicial business of any kind; proceeding without rules, order, or organisation; acting by turns as judge without jury and jury without judge; settling questions of law and questions of fact and questions of justice alike by the majority of votes; it is not surprising that both in trying the cause and in deciding upon it they merely reflected and gave effect to the passion of the time. As the passion of the time had some reason in it, so had their decision some justice. It had also, as it happened,-what was more important,-a great constitutional value: it inflicted upon an abuse which had been heretofore tolerated a punishment which made it thereafter infamous. All questionable power (supported by the Prince's countenance) was grown so great in the two Houses, that it was in vain for the King to interpose; and so (notwithstanding so good a defence made by the Earl, that he was absolved from any notorious crime by the impartial opinion of many of those who heard all the evidence) he was at last condemned in a great fine to a long and strict imprisonment, and never to sit in Parliament during his life; a charge of such a nature as was never before found in any judgment of Parliament, and in truth not to be inflicted on any Peer but by attainder." Hist. of Rebellion, p. 64. 1 Lords' Journals, p. 106. 2 Preface, pp. iv. viii. transactions between Judges and suitors were from that day at an end in England. For this purpose it fortunately happens that an unjust sentence does as well as a just one, perhaps better: and though it falls hard upon the victim, the nation receives the benefit. But as a decision upon the questions either of law or of fact or of justice which the charge involved, I cannot think, considering the method by which it was arrived at, that it deserves any credit whatever. As a precedent of the manner of proceeding in such cases, it cannot be recommended as an example to be followed, in any part of it. And as for the character and complexion of the offence, so little consideration was used in the enquiry that whoever cares to form an estimate of that must try the case over again for himself upon such evidence as is now attainable. Bacon never allowed himself to dispute the justice of the sentence to which he had undertaken to submit. But his confession contains his own judgment upon his own case; and though we cannot test it by comparison with the depositions upon which the judgment of the Lords was really based, and which he never saw, we can try it by its correspondence with some other facts not known to them:1 and we are warned in the meantime by certain proceedings of theirs which took place a few days after and show the temper they were in, not to accept their impression of the effect of those depositions as conclusive. Two days after they passed their sentence upon Bacon, they discovered that the House of Commons was beginning again to trespass upon their province, and pass sentences on its own account upon persons "not members thereof or dependants thereupon." While Bacon was employed in drawing up his answers to the charges, information reached the Lower House that, some four months before, scandalous words had been heard spoken within the precincts of the Fleet prison concerning the King and Queen of Bohemia. It was on Saturday, the 28th of April, that they had the first intimation of the fact. On Monday, the 30th, they sent for the Warden of the Fleet, and summoned all the lawyers of the House to attend presently and hear the accusation read. On Tuesday morning they had the accused and the accusers brought before them, and on Tuesday afternoon they pronounced the sentence, which on Wednesday morning was to have been carried out. As judicature was the special business and distinction of this session in both Houses, as it is important to know how they acquitted themselves in their new function of great inquest, prosecutor, judge and jury, all together, and as we happen to have a particularly authen1 See chap. x. § 10. 1621.] THE HOUSE OF COMMONS AS A COURT OF JUSTICE. 273 tic record of the proceeding in this case (for it was drawn up by a committee headed by Coke himself after the right to judge had been called in question),'-I shall set down the whole record as entered by special direction in the Journals. 'Be it remembered, that upon Tuesday the first day of May in the year of our sovereign Lord, James, King of England, etc., the nineteenth, Edward Lloyde, late of Clannemayne, within the county of Salop, Esquire, was impeached before the Commons assembled in this Parliament, for that the said Edward, sithence the summons of this Parliament, in the prison of the Fleet, having communication concerning the most illustrious Princess, the Lady Elizabeth, only daughter of our said sovereign Lord, and the most excellent Prince her husband, did use and utter, openly and publicly, false, malicious and despiteful speeches of the said two Princes; saying in this manner, 'I have heard that Prague is taken; and Goodman Palsgrave and Goodwife Palsgrave have taken their heels and run away; and, as I have heard, Goodwife Palsgrave is taken prisoner,' and that those words were spoken by him in most despiteful and scornful manner, with a fleering and scoffing countenance, and with a purpose to disgrace, as much as in him lay, those two Princes; and that at other times he did, in like despiteful and reproachful manner, use other malicious and opprobrious words of them. Whereupon the said Commons, of their love and zeal to our said sovereign Lord, and not minding to let pass unpunished those things that tended to the disgrace of his Majesty's issue, a part of himself, who is head of the Parliament, did call before them the said Edward Lloyde, and thereof did question him; and thereupon so far proceeded that after, upon the same day, for that the said matters whereof the said Edward was impeached were true and notorious, therefore the said Commons in the Commons House assembled in Parliament did adjudge and award, that the said Edward Lloyde should be returned that night prisoner to the Fleet, where before he remained in prison, and to lie that night in a place there called Bolton's ward; and shall the next morning be brought to Westminster, into the great yard before the door of the great Hall of Pleas, and be there set and stand upon the pillory, from nine until eleven of the clock in the forenoon, with a paper upon his hat with this inscription, in capital letters, of these words; For false, malicious, and despiteful speeches against the King's Daughter and her Husband'; and from thence shall presently ride to the Exchange within the city of London, upon a horse without a saddle, with his face backwards towards the horse tail, holding the tail in his hand, with the former paper on his head; and be there again set and stand upon the pillory two hours; and from thence shall ride in like manner to the Fleet, and there to remain until the next Friday morning; and in that morning to ride in like manner into Cheapside in the city of London, and there shall be set 1 "Sir Edw. Coke, Sir. Ro. Philippes, Mr. Noy, Mr. Alford, Sir Sam. Sands, Master of the Wards, Sir Nath. Rich, Sir Edw. Cecill, presently to retire into the committee chamber and to set down in writing the judgment." C. J. 4th May, p. 608. VOL. VII. T |