desired to form a fair judgment; for a story told in a man's own defence about things long past, concerning many of which he is himself the sole surviving witness, may always be justly suspected of errors both intentional and unintentional. But then, before I disbelieve the positive statement of a man whose character for veracity has not been otherwise forfeited, I want for my own part to know why. What reason can anybody give me for refusing my belief to the positive statements in this letter? The two passages which may seem at first sight to be inconsistent with other existing evidence—and, so far as I know, the only two-have been quoted at full length in my own narrative, side by side with the evidence with which they have been thought inconsistent; and as my narrative in both cases accepts and includes both, I cannot admit the inconsistency. In other respects it has all the outward appearances of fairness and sincerity. It is full and circumstantial: it is written with a great deal of feeling it makes no attempt to throw blame on others, or to depreciate his own obligations, or to exaggerate his own services: it resorts to no special pleading; indulges in no rhetoric; merely states the facts and leaves them to suggest the judgment. What the judgment was, of those to whom he appealed, I cannot (as I said) produce any positive evidence. But the negative evidence is significant. "It is not probable," says Lord Macaulay, "that Bacon's defence had much effect upon his contemporaries. But the unfavourable impression which his conduct had made appears to have been gradually effaced." From this I infer that Lord Macaulay's reading furnished no expression or anecdote which implied, or could be made to seem to imply, that the unfavourable impression continued after the explanation had been heard. And as this is exactly what would have happened on the supposition that his defence did produce its natural effect upon his contemporaries, and is very hard to explain upon any other supposition, (seeing that Bacon's course of life, as a rising man in Court favour, in the House of Commons, and in his profession, exposed him to envy and free criticism in a world which was in this matter prejudiced against him), I think we may fairly leave it there. 1 Vol. II. pp. 127-133, 150, 151. THE resolution to call a Parliament, having been postponed from month to month in consequence of the sickness then prevailing in London, was at length announced by Proclamation on the 11th of January 1603-4. The session began on the 19th of March and was opened by the King in person with a gracious and judicious speech, explaining his views on peace, on the union of the kingdoms, on the limits of toleration in religion, and on the general duties of government in all which there seems to be nothing to find fault with: and if he had not called the Devil "a busy bishop"-upon which one of the Bench is said to have remarked that "his Majesty might have chosen another name "I am not aware that any exception would have been taken to it. : But a clause in the Proclamation, introduced it seems by the Lord Chancellor, had sown the seed of a difficulty which threatened to - spoil the concert; and of which the history is worth telling at large, not only for the part which Bacon took in it, but also for the light which might have been taken from it as to the true method of arranging those disputes between Privilege and Prerogative which were destined to be the trouble of the times. The Proclamation had notified that all returns and certificates of Knights, Citizens, and Burgesses were to be brought to the Chancery, and there filed of record: and if any were found to have been made contrary to the Proclamation "the same was to be rejected as unlawful and insufficient." A previous clause had forbidden the election of bankrupts or outlaws. Sir Francis Goodwin, who was returned for Buckinghamshire, was objected to as having been outlawed: the 1 Nuga Antiquæ, i. 182. 2 Egerton Papers, p. 38. Gardiner, i. p. 180. 3 With whom the objection originated does not clearly appear. In a letter to Winwood (Mem. ii. p. 18), Cecil seems to imply that it was an electioneering manœuvre advisedly adopted by the government. "Sir Francis Goodwyn (he says) having laboured to be Knight of Buckinghamshire, to the exclusion of an return was accordingly refused by the Clerk of the Crown; and a new writ being issued from the Chancery, Sir John Fortescue, a Privy Councillor, was elected instead. This was before the meeting of Parliament: and the very first motion made in the Lower House after the election of the Speaker was for an examination of the return and the admission of Sir F. Goodwin as a member. The motion was approved: the Clerk of the Crown was summoned to appear the next morning with the writs, returns, indentures, etc.; and Sir Francis Goodwin was ordered to attend in person and explain his case: a select committee being at the same time appointed (as usual at the beginning of a session) to examine all questions touching privileges and returns. Upon a full consideration and discussion of the case (in which Bacon appears to have taken a prominent part; for though there is no report of what was said, his name heads the list of members named as speakers), it was resolved that Goodwin was not an outlaw, and had been duly elected upon which the Clerk of the Crown was ordered to file the first return, and Goodwin took the oaths and his seat. This was on Friday, March 23rd, and thus the House was brought into collision with the Court of Chancery upon the question of jurisdiction to which of them it belonged to judge of the validity of the return a point of privilege important in the highest degree; for if the judgment of the Court of Chancery was conclusive, the Chancery could control the composition of the House. On the following Tuesday the dispute was further complicated by a message brought by the Attorney General from the Lords, desiring a conancient Counsellor, Sir John Fortescue, it was advised by the King's Learned Counsel and Judges whether there were not some means by the laws to avoid it. Whereupon it being found that he was outlawed (and so certified by the Sheriff), consequently a new writ was sent forth," etc. And though nothing was said about this in the House, it appears incidentally from the journals that Sir Edward Coke had a principal hand in the Sheriff's certificate. To the question, "Who laboured him to make the return so long before the day of the Parliament ?" the Sheriff replied that," he being here in London, Mr. Attorney General, the 2nd of March, at his chambers in the Inner Temple, delivered him two cap. utlegat. against Sir Francis Goodwyn; and before he made his return, he went and advised with Mr. Attorney about his return who penned it; and so it was done by his direction. And the return being written, upon Friday after the King's coming through London, near about my Lord Chancellor's gate, in the presence of Sir John Fortescue, he delivered the writ to Sir George Coppin: and at this time (it being about 4 of the clock in the afternoon) and before they parted, Sir John Fortescue delivered him the second writ sealed: Sir John Fortescue, Sir George Coppin, and himself, being not above an hour together at that time; and never had but this new writ of Parliament to him delivered." (Com. Journ. p. 161.) : Coke's part in the matter may perhaps have been merely ministerial: but the rapidity of the proceeding was a fatal blot in the case on the Chancery side, and involved an irregularity which made it legally invalid :-" the later writ being awarded and sealed, before the Chancery was repossessed of the former-which the Clerk of the Crown and the Sheriff of the County did both testify, and well held to be a clear fault in law." (Id. p. 163.) ference on the subject: to which the Commons replied that "it did not stand with the honour and order of the House to give account of any of their proceedings." This brought them into collision with the Lords. And worse was behind. For thus far the King had not been implicated: but when the Attorney General returned presently with another message signifying that the Lords had acquainted his Majesty with the matter; who "conceived himself engaged and touched in honour that there might be some conference of it between the two Houses; and to that end signified his pleasure unto them, and by them to this House "-they were fairly in collision with all three; the Chancery whose judgment they had reversed, the Lords with whom they had refused to confer,-and the King who had taken part with the Lords. Upon this they moved for access to the King himself: which was granted for the next morning. A committee was immediately named (Bacon's name the first on the list) "to set down the effect of that which Mr. Speaker was to deliver from the House to the King." And on Wednesday at 8 o'clock in the morning he went, accompanied by a select committee; explained their whole proceeding, and the grounds of it; heard the King's answer to the several points, and received his "charge "-which was that they should first resolve amongst themselves, then confer with the Judges and report to the Council. All which he related to the House the next day. And now came a grave difficulty. For the King had argued the case himself, and (as he could not easily refrain from giving an answer when he had it ready) had personally committed himself to the legal doctrine which had been laid down, I suppose, by the Lord Chancellor and the Judges. "By the law (he said) this House ought not to meddle with returns, being all made into the Chancery; and are to be corrected and reformed by that Court only into which they are returned. In 35 Hen. VI., it was the resolution of all the Judges that matter of utlawry was a sufficient cause of the dismission of any member out of the House. The Judges have now resolved that Sir Francis Goodwin standeth outlawed according to the laws of the land." Not merely therefore upon the question whether they should confer with the Lords, but upon the entire constitutional question involved in the case, and upon each several point of it, they were now engaged in a direct dispute with the King himself. Prerogative and Privilege found themselves suddenly face to face in a narrow passage: one must stand aside to let the other pass, or each must be content with half the pathway. What was to be done? Their immediate resolution was to postpone the further considera1 C. J. p. 158. tion of the question till the next morning. In the debate which then took place, it appeared that upon one point they were at once and unanimously resolved,-to stand fast by the principle that they were judges of their own returns, sole and unaccountable. On that point no one talked of a compromise. But upon the question how they should proceed in asserting it, opinions were much divided. And here it was that Bacon became, as I take it, an important actor in the matter. All that we know of his speech is contained in the following note, as entered in the Commons' Journals; but it is enough to show the tenour of his advice. "That we ought not to contest with the King: That it is fit to have a conference: That by it we shall lose no privilege, but rather gain; for the matters of the conference will be two; satisfaction of the King, and putting in certainty our privilege. All is not said that may be said. We are not to dispute with one that is governor of 30 legions: confitendum est, ne frustra interrogásset. Let us deal plainly and freely with the Lords, and let them know all the reasons. They are jealous of the honour of a Privy Counsellor, we of the freedom of election. It is fit great men maintain their Prerogative, so is it fit that we maintain our privileges. This is a Court of Record, therefore ought we by all means to seek to preserve the honour and dignity of it. If a Burgess be chosen for two places, the Burgess makes his choice for which he will serve; and a warrant shall be directed from Mr. Speaker, in the name of the House, to the Clerk of the Crown, to send forth a writ for a new election for the other place left; which is a direct proof that it is a Court of Power and of Record. We have a Clerk and a Register: all matters that pass here are entered of Record and preserved. As they stand for the honour of a Counsellor, so we for our Privileges. It is to be wished that we had a law to declare our Privileges: That we have a Court of Record and a Register. Object. We (they say) are but half of the body; and the Lords are the parts nearest the head. Answer. Nothing ascends to the head but by the breasts, etc. Conclusion. That we may pray, it may be explained by a law, what our privileges are; and that no man outlawed may be hereafter admitted. There must be a judge of the return before we sit; and this is now judged according to the positive laws of the realm by the |