1621.] BUCKINGHAM SEEMS TO BE APPEASED. 329 TO THE MARQUIS OF BUCKINGHAM.1 My very good Lord, Your Lordship dealeth honourably with me in giving me notice that your Lordship is provided of an house, whereby you discontinue the treaty your Lordship had with me for Yorkhouse; although I shall make no use of this notice, as to deal with any other. For I was ever resolved your Lordship should have had it, or no man. But your Lordship doth yet more nobly, in assuring me you never meant it with any the least inconvenience to myself. May it please your Lordship likewise to be assured from me, that I ever desired you should have it, and do still continue of the same mind. I humbly pray your Lordship to move his Majesty to take some commiseration of my long imprisonment. When I was in the Tower I was nearer help of physic, I could parly with my creditors, I could deal with friends about my business, I could have helps at hand for my writings and studies wherein I spend my time; all which here fail me. Good my Lord, deliver me out of this, me who am his Majesty's devout beadsman and Your Lordship's most obliged friend I am glad your Lordship understands me so rightly in my last letter. I continue still in the same mind, for, I thank God, I am settled to my contentment, and so I hope you shall enjoy yours with the more, because I am so well pleased in mine. And, my Lord, I shall be very far from taking it ill if you part with it to any else, judging it alike unreasonableness to desire that which is another man's, and to bind him by promise or otherwise not to let it to another. My Lord, I will move his Majesty to take commiseration of your long imprisonment, which in some respects both you and I have reason to think harder than the Tower; you for the help of physic, your parley with your creditors, your conference for your writings and studies, deal 1 Gibson Papers, vol. viii. f. 172. Copy in Bacon's hand. Docketed in the same, "Cop. Ire. to my L. Marq. upon his notice." o Harl. MSS. 7000, f. 67. Original. Doeketed by Bacon, "The Ire. of kindness and promise from my Lo. of Buck"." ing with friends about your business; and I for this advantage to be sometimes happy in visiting and conversing with your Lordship, whose company I am much desirous to enjoy, as being tied by ancient acquaintance to rest always Your Lordship's faithful friend and servant, G. BUCKINGHAM. There was a rumour about this time that Bacon was likely to be restored to the Council table: which appears to have grown only out of the fact that the King had lately ordered the new Lord Treasurer to pay him his pension. And it is true that on the 19th of January he had a grant "of all arrears due to him by letters patent formerly made to him, and also of an annuity of 12007. for twelve years."2 But as I find no mention of this among the favours asked for or acknowledged, I presume that it was only an authority to the Lord Treasurer to pay him what was overdue upon the patents which belonged to him. If the copies of three letters entered in Stephens's catalogue under date 3rd Feb. 1621 as addressed to "the Lord Treasurer, Sir Arthur Ingram, and Sir Edward Sackville," should be found, they would probably throw some light upon it. 10. This was a considerable advance on Buckingham's part towards reconciliation; though he still writes in the polite mood,— "With courtesy and with respect enough; But not with such familiar instances Nor with such free and friendly conference and the obstruction was only half removed. But it makes a restingplace, and leaves room for the appearance on the scene of a greater man. It seems that as his hope of help through Buckingham's influence with the King grew colder, Bacon had turned to consider how his case stood in point of law; and had consulted Selden "about some passages of Parliament ”—what passages and with what view we do not more precisely know-but probably to learn how far they were in accordance with constitutional precedents. Soon after, a fresh question was suggested by the circumstances of the dissolution. The last act of the House of Commons before their adjournment at the beginning of June, had been to promise that if the King failed 1 Thos. Locke to Carleton, 4th Feb. 1621-2. S. P. 2 Calendar of State Papers,' p. 337. 1621.] JUDGMENTS OF THE LORDS, HOW FAR VALID. 331 to obtain by peaceable means the settlement of true Religion and the recovery of the Palatinate, he should command for those services the lives and estates of all their constituents. In November the failure was declared, and it was time to call upon them to make their promise good. Parliament was immediately summoned, and met on the 20th of November. The state of the case was explained to the two Houses by Digby, the King being unable to attend in person; who laid all the blame upon the Emperor,-excusing the King of Spain and saying nothing about Frederick,-and ended with an intimation that the force which the occasion required would cost not less than 900,000l. This was not beyond the estimate which had been made by the Council of War in January, and was therefore within their engagement. But though it had been easy to agree in the promise without naming scruples or stipulations, it was found when it came to the performance that such a grant could not be agreed to except upon conditions. They voted a single subsidy,— enough to maintain the garrisons in the Palatinate through the winter, but coupled it with a petition setting forth their own view of what should be done: which being in direct opposition to the course to which the Government had committed itself, brought up the old dispute between Prerogative and Privilege in the most inconvenient and intractable of all its shapes,-the dispute, in its very nature incapable of solution otherwise than by main force, on the question of abstract constitutional right. With the policy of the proceedings on either side I have nothing to do here, Bacon having no concern in them. The matter which concerned him was the issue; and the issue was a dissolution without the royal assent given to any act (except the act of subsidy in the middle of the previous session), and a proclamation which called that meeting of Parliament not a session but a convention. Now if the meeting had been "no session," how would that affect the acts which had been done in it? This question Bacon seems to have proposed to Selden, and the next letter contains his answer. It will be seen that he thought it was a session; and that even if it were not, the judgments of the Upper House would still be good,—if there were no other reason against them: but at the same time that there was other reason against them: for there being no proper record of them, "it might justly be thought that they were of no force." The question is one of form, and does not affect the substance of the proceeding in those points in which it is most open to exception. But it is interesting to know the opinion of a man like Selden upon a point of constitutional law, and the more when it shows two such men in communication with each other. John Selden, ESQ., TO THE LORD VISCOUnt St. Alban.1 My most honoured Lord, At your last going to Gorhambury you were pleased to have speech with me about some passages of Parliament touching which, I conceived by your Lordship, that I should have had farther direction by a gentleman to whom you committed some care and consideration of your Lordship's intentions therein. I can only give this account of it, that never was any man more willing or ready to do your Lordship service than myself; and in that you then spake of, I had been most forward to have done whatsoever I had been by farther direction used in. But I understood that your Lordship's pleasure that way was changed. Since, my Lord, I was advised with, touching the judgments given in the late Parliament. For them (if it please your Lordship to hear my weak judgment expressed freely to you) I conceive thus: First, that admitting it were no session, but only a convention, as the proclamation calls it; yet the judgments given in the Upper House (if no other reason be against them) are good; for they are given by the Lords, or the Upper House, by virtue of that ordinary authority which they have as the supreme court of judicature; which is easily to be conceived without any relation to the matter of session, which consists only in the passing of acts, or not passing them, with the royal assent. And though no session of the three states together be without such acts so passed, yet every part of the Parliament severally did its own acts legally enough to continue, as the acts of other courts of justice are done. And why should any doubt be, but that a judgment out of the King's Bench or Exchequer Chamber reversed there, had been good, although no session? For there was truly a Parliament, truly an Upper House (which exercised by itself this power of judicature), although no session. Yet withal, my Lord, I doubt it will fall out upon further consideration to be thought a session also. Were it not for the proclamation, I should be clearly of that mind, neither doth the clause in the act of subsidy hinder it. For that only prevented the determination of the session at that instant, but did not prevent the being of a session whensoever the Parliament should be dissolved. But because that point was resolved in the proclamation, and also in the commission of dissolution on the 8th of February, I will rest satisfied. But there are also examples of former times that may direct us in that point of the judgment; in regard there is store of judgments of Parliament, especially under Edward 1st and Edward 2nd, in such conventions as never had, for aught appears, any act passed in them. Next, my Lord, I conceive thus: That by reason there is no record of those judgments, it may be justly thought that they are of no force. For thus it stands. The Lower House exhibited their declarations in paper, and the Lords receiving them proceeded to judgment verbally, and the notes of their judgments are taken by the clerk in the journal only; 1 Gibson Papers, vol. viii. f. 160. Original, 1621.] ACCORDING TO SELDEN NOT VALID. 333 which, as I think, is no record of itself, neither was it ever used as one. Now the record that in former times was of the judgments and proceedings there, was in this form. The accusation was exhibited in parchment, and being so received and indorsed was the first record, and that remained filed among the bills of Parliament, it being of itself as the bills in the King's Bench. Then out of this there was a formal judgment with the accusation, entered into that roll or second record which the clerk transcribes by ancient use and sends into the Chancery. But in this case there are none of these. Neither doth anything seem to help to make a record of it, than only this, that the clerk may enter it now after the Parliament; which I doubt he cannot. Because although in other courts the clerks enter all, and make their records after the term, yet in this Parliamentary proceeding it falls out that the court being dissolved the clerk cannot be said to have such a relation to the Parliament which is not then at all in being, as the prothonotaries of the courts in Westminster have to their courts which stand only adjourned. Besides, there cannot be an example found by which it may appear that ever any record of the first kind (where the transcript is into the Chancery) was made in Parliament but only sitting the House, and in their view. But this I offer to your Lordship's farther consideration, desiring your favourable censure of my fancy herein, which, with whatsoever ability I may pretend to, shall ever be desirous to serve you, to whom I shall perpetually vow myself Your Lordship's most humble servant, J. SELDEN. From the Temple, February 14, 1621. My Lord, If your Lordship have done with that 'Mascardus de Interpretatione Statutorum,' I shall be glad that you would be pleased to give order that I might use it. And for that of 12 Hen. 7, touching the grand council in the manuscript,3 I have since seen a privy seal of the time of Henry 7 (with 1 It appears from a statement in the 'Statutes of the Realm,' vol. iv. p. 1208, that the only Acts passed in this Parliament-viz. the Subsidy Acts of the Temporalty and the Clergy-were not enrolled in Chancery: but that " a Roll of this Parliament is preserved in the Rolls office in Chancery, indorsed 'Rotulus judiciorum redditorum in Parliamento tento apud Westm. anno Regis Jacobi Angliæ, etc., decimo octavo':" that "this is referred to by the Calendar of Acts of Parliament at the Rolls, under Anno decimo octavo Jacobi R., as 'An Act containing the censure given in Parliament against Sir Gyles Mompesson, Sir Francis Mitchell, Francis Viscount St. Albane Lord Chancellor of England, and Edward Flood': and that "it contains the several proceedings in Parliament, and the respective judgments of the House of Peers against those offenders." Alderani Mascardi communes conclusiones utriusque juris ad generalem Statutorum Interpretationem accommodatæ.' Printed at Ferrara in 1608. (Note by Birch.) 3 Probably a MS. containing some allusion to the Grand Council called by Hen. 7th in 1596, of which Bacon did not know. See my notes to Bacon's Hist. of Henry 7th for a full explanation of the whole matter. Works, vol. vi. p. 174; note. |