: 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 1 See Vol. II. p. 106. 2 C. J. p. 180. same result. Upon this he was brought to the Bar a second time (8 May); and, still refusing to promise obedience except upon conditions, was committed to the Tower. : Perhaps they might be more successful with his second in command and next day the Serjeant was sent for the third time upon the same errand. But the second in command was the Warden's wife, who having in the meantime taken possession of all the keys and all the authority, referred him to her husband for his answer: and though armed with Habeas Corpus and mace, he could make no impression on her. The House, which had thus far shown unusual patience and consideration in the matter, began now to get a little hot: a motion that six members should accompany the Serjeant and bring Sir Thomas by force, if he were not given up, was proposed and carried by a considerable majority: and appears to have been only stayed from execution upon a suggestion that any member who took part in such a proceeding would be liable to an action. But the next day (10 May) a new and a better chance offered itself. The King, who had prudently declined all interference in the dispute hitherto, volunteered the promise which the House had forborne to ask for;-he would engage in verbo principis to assent to the Bill at the end of the Parliament. Upon this the Serjeant was sent again to the Fleet, armed as before; and (having first privately and of his own motion informed the Warden's wife of the King's promise) again demanded the body of Sir Thomas. But the faithful and valiant woman knew no authority except her husband's; declared that, without word from him, if he carried Sir Thomas's body, he must carry her own, dead, along with it; and when he offered to take her by the hand, lay down. To go further was beyond his commission; and so all three, -Serjeant, Habeas Corpus, and mace,—came back empty as before. : Then the Warden himself was brought to the Bar again, for the third time; was formally acquainted with the King's promise; was reasoned with being found inexorable, was ordered into closer confinement in a dungeon well known by the significant name of "Little Ease" and when this produced no better effect, some members were sent to see whether the order had really been complied with. They found that he had not been made uneasy enough; and upon their report to that effect, a most distracted debate followed. One would have the Lieutenant of the Tower fined 20007. for not executing the order. Another would have the Warden himself fined 1007. a day till he relented. A third was for an Act of Parliament disabling him for all offices, etc. A fourth would have the Lessee of the Fleet sent for, and get at their member that way. A fifth was for acquainting the Lords and petitioning for the King's help. A sixth revived the former motion, that six members of the House should go with the Serjeant, and deliver Sir Thomas by force. A seventh would have the House rise and strike work until they had power to execute their privileges. And so they seemed to be at a non-plus; every man giving an opinion, and no two opinions alike. It was at this point that Bacon came forward with a suggestion. Hitherto he had taken no part in the business, beyond giving an opinion (27 March) that the delivery of Sir Thomas did not (as the law stood) deprive the creditor of his remedy. But now the House seemed to be in imminent danger of committing some rash action. The problem was, to vindicate the privilege without offending the law. To call upon the Crown to enforce the demand for them would be to acknowledge a want of power in themselves. To enforce it by the hands of their own members would be to exceed their powers. To refuse to proceed with the public business would be foolish. But there was a middle way left. The Serjeant-at-arms might be ordered to recover their lost member by force, and the King might appoint persons to assist him in executing the order. This appears to have been Bacon's suggestion. The note of his speech runs thus. "This is a great case of Privilege.-Remora, a little fish that stayeth great ships.-We have had two of them this Parlia ment. No suit to the King, because he cannot do it, and it is a disclaimer of our power. Not to rise, like sullen fellows. That is to give over our privileges to wind and weather.-We shall displease the King, and hurt the Commonwealth. No members of the House to assist the serjeant:-Judges cannot be ministers. Conclus. To be petitioners to the King, that he would appoint some to aid our Serjeant for the delivery of the prisoner with force." 3 To this proposition however, when upon Bacon's motion it was formally put to the House, objection was taken by the Speaker as contrary to precedent; and though Bacon was prepared and allowed to give some answer to the objection (it being "overruled upon question that he might speak again in the same matter to expound himself" 4) the motion appears to have been ultimately withdrawn, 2 Cott. MSS. Tit. F. iv. fo. 4, b. I C. J. p. 971. 3 C. J. p. 209, and compare p. 971. 4 His object appears to have been to draw a distinction between petitioning the and the question put in another form, though the measure agreed upon was not substantially different. The King was not to be asked for material assistance-only moral: and the debate ended in a resolution that the Serjeant-at-arms should be sent once more with a new writ; that the Warden should be carried to the door of the Fleet; and that the writ should be then delivered to him with commandment from the House to obey it: the Vice-Chamberlain being at the same time privately instructed to go to the King, and humbly desire that he would be pleased (as from himself) to command the Warden upon his allegiance to set Sir Thomas free. This measure at last succeeded. They recovered their member, and established their privilege. The Warden and other prisoners were in due time, after making due submission, released:-and Sympson had to pay all the costs. 3. These disputes, though not without their importance in the development of our Parliamentary constitution, were serious and vexatious interruptions to the great businesses of the time, upon which the House had shown every disposition to enter promptly and earnestly. The greatest of these was no doubt that which the King had especially recommended to them, and to which his own aspirations were at this time almost exclusively directed, -the Union of England and Scotland: a national work of which it was hardly possible to overrate the importance. But it was full of difficulties and had to be approached with caution. In the meantime there were other questions which stood much in need of settlement and might be proceeded with at once; and though the results attained were not destined to be considerable for the present, the subsequent history of the reign, and especially of Bacon's political career, cannot be properly understood without careful observation of the first movements. 1. The law which gave to the Crown the wardship of minors, springing originally out of the obligations of the feudal system, had ceased to be fit for the existing condition of society, and began to be felt as a burden and a grievance to the subject. Being nevertheless a source of considerable revenue to the Crown, the legality of which was not disputed, it was a fit subject for Parliament to deal with by way of bargain. King to assist them in executing their own order, and petitioning him to execute it for them. But all that remains of what he said is this: "Plenitudo potestatis, plenitudo tempestatis. "To be petitioners to the King to assist: no derogation: a difference between execution and assistance in execution." (C. J. p. 972.) |