1621.]

HIS SUBMISSION TO THE LORDS.

243

But to pass from the motions of my heart, whereof God is only judge, to the merits of my cause, whereof your Lordships are judges, under God and his lieutenant; I do understand there hath been heretofore expected from me, some justification; and therefore I have chosen one only justification instead of all other, out of the justifications of Job. For after the clear submission and confession which I shall now make unto your Lordships, I hope I may say and justify with Job in these words: I have not hid my sin as did Adam, nor concealed my faults in my bosom. This is the only justification which I will use.

It resteth therefore that, without fig-leaves, I do ingenuously confess and acknowledge, that having understood the particulars of the charge, not formally from the House, but enough to inform my conscience and memory, I find matter sufficient and full, both to move me to desert the defence, and to move your Lordships to condemn and censure me.

Neither will I trouble your Lordships by singling those particulars, which I think may fall off.

Quid te exempta juvat spinis de pluribus una?

Neither will I prompt your Lordships to observe upon the proofs, where they come not home, or the scruples touching the credits of the witnesses. Neither will I represent unto your Lordships, how far a defence might in divers things extenuate the offence, in respect of the time or manner of the gift, or the like circumstances, but only leave these things to spring out of your own noble thoughts, and observations of the evidence and examinations themselves; and charitably to wind about the particulars of the charge here and there, as God shall put into your mind; and so submit myself wholly to your piety and grace.

And now that I have spoken to your Lordships as Judges, I shall say a few words to you as Peers and Prelates, humbly commending my cause to your noble minds and magnanimous affections.

Your Lordships are not simple Judges, but Parliamentary Judges; you have a further extent of arbitrary power than other courts; and if your Lordships be not tied by the ordinary course of courts or precedents in points of strictness and severity, much more in points of mercy and mitigation.

And yet if any thing I shall move might be contrary to your

honourable and worthy ends to introduce a reformation, I should not seek it. But herein I beseech your Lordships to give me leave to tell you a story. Titus Manlius took his son's life for giving battle against the prohibition of his general: not many years after, the like severity was pursued by Papirius Cursor, the Dictator, against Quintus Maximus, who being upon the point to be sentenced, by the intercession of some principal persons of the senate was spared; whereupon Livy maketh this grave and gracious observation. Neque minus firmata est disciplina militaris periculo Quinti Maximi, quam miserabili supplicio Titi Manlii. The discipline of war was no less established by the questioning of Quintus Maximus, than by the punishment of Titus Manlius. And the same reason is of the reformation of justice; for the questioning of men of eminent place hath the same terror, though not the same rigor, with the punishment.

But my case standeth not there. For my humble desire is, that his Majesty would take the seal into his hands, which is a great downfall, and may serve I hope in itself for an expiation of my faults.

Therefore, if mercy and mitigation be in your power, and do no ways cross your ends, why should I not hope of your Lordships' favour and commiseration?

Your Lordships will be pleased to behold your chief pattern, the King our Sovereign, a King of incomparable clemency, and whose heart is inscrutable for wisdom and goodness. Your Lordships will remember, that there sat not these hundred years before a Prince in your house, and never such a Prince, whose presence deserveth to be made memorable by records and acts mixed of mercy and justice. Yourselves are either nobles, (and compassion ever beateth in the veins of noble blood,) or reverend prelates, who are the servants of him that would not break the bruised reed nor quench the smoking flax. You all sit upon one high stage, and therefore cannot but be more sensible of the changes of the world, and of the fall of any of high place.

Neither will your Lordships forget that there are vitia temporis as well as vitia hominis, and that the beginning of reformations hath the contrary power of the pool of Bethesda, for that had strength to cure only him that was first cast in, and this hath commonly strength to hurt him only that is first cast in. And for my part, I wish it may stay there, and go no further.

1621.]

THEIR METHOD OF JUDICIAL ENQUIRY.

245

Lastly, I assure myself, your Lordships have a noble feeling of me, as a member of your own body, and one that in this very session had some taste of your loving affections; which I hope was not a lightning before the death of them, but rather a spark of that grace which now in the conclusion will more appear.

And therefore my humble suit to your Lordships is, that my penitent submission may be my sentence, and the loss of the seal my punishment; and that your Lordships will spare any further sentence, but recommend me to his Majesty's grace and pardon for all that is past. God's holy Spirit be amongst

you.

Your Lordships' humble

servant and suppliant,

April 22, 1621.

FR. ST. ALBAN, Canc.

9.

If it had been possible to settle the matter in this way, a fairer and juster impression of the merits of the case would have been left in the popular mind than could have been made by any other course, short of a full trial in open court, with distinct discussion of every charge which discussion could not have been complete without opportunity given to the defendant "to except to the witnesses brought against him; to move questions for their cross-examination; and to produce his own witnesses for discovery of the truth." I do not doubt that the several Committees had done their best to crossexamine and test the witnesses; but what could their best be worth without the help of suggestions from the party accused? One Committee consisted of the Earl of Arundel, the Bishop of Durham, Lord Sheffield, and Lord Hunsdon. Another of the Earl of Huntingdon, the Bishop of Winchester, Lord Wentworth, and Lord Houghton; the third of the Earl of Southampton, the Bishop of Coventry and Lichfield, Lord Spencer, and Lord Saye and Seal. All worthy men, for anything I know to the contrary, and fairly chosen as having no personal interest in the parties or the cause. dare say they would have made very good juries,-possibly very good judges,-in a case properly set forth before them. But the proper setting forth of a case implies the hearing of both sides; and they had no opportunity of hearing more than one. For even

1 See Bacon's.first letter to the Lords, March 19.

I

if they had sagacity enough to cross-examine the several deponents judiciously, they could not have the information necessary to guide the cross-examination. The depositions may have contained statements which, though not improbable in themselves, were incompatible with other provable facts; known to the party accused, but not possible to be known to them without his prompting. The unsatisfactory part of the arrangement was that these Committees of four, when they had heard the case for the prosecution (which was in fact all they did), became of necessity (without hearing any more) judges of the whole case. For though the decision rested formally in the vote of the whole House, what could the whole House do with the forty or fifty depositions which they heard read out by the Clerk, but accept them on the authority of those Committees without further question? It would be hardly fair perhaps to compare it with a modern trial in which the jury should give their verdict after hearing only the examination in chief of the witnesses for the prosecution; for in that case the witnesses would be partially selected and the questions carefully contrived to support the case. But every man's experience of the difference in the aspect of a witness's evidence before cross-examination and after, will enable him to understand how unsatisfactory such a process was for the discovery of the truth in such a question. To make their reports of any value, every one of these Committees of four ought to have contained at least one member in communication with Bacon and watching the evidence on his behalf. One instance we happen to know of, though only by accident, where the evidence of a witness in a case closely connected with Bacon's and resembling it in all material points, was found by the Committee itself to be so modified when he came to be examined on his oath, that upon their report the House forbore to pass sentence. Randolph Davenport, one of Bacon's servants, whose evidence against the Bishop of Landaff, as reported from the Commons, seems as precise, as circumstantial, and as conclusive as any of the evidence against Bacon himself,'-being examined on oath by the Lords, " did not affirm the same which he had delivered unto the Commons (as is supposed)." "The proofs" of the matter "complained of by the Commons to the House" were found to be "small; nothing but an intent (at the most) being proved." So they agreed, instead of passing sentence, to refer the case to the Archbishop of Canterbury; by whom the impugned Bishop was to be admonished before the Bishops and Clergy in the Convocation House; the following message being at the same time sent to the House of Commons by way of excuse.

1 See above, p. 222.

1621.] RESULT OF ENQUIRY IN THE BISHOP'S CASE. 247

"Whereas the House of Commons informed this House of a great misdemeanour committed by Dr. Feild (now Bishop of Landaph), and since also hath sent to demand judgment in that cause; The Lords, having taken full examination thereof upon oath, find not the same proved upon outh as it seems was informed them upon examination in their House; and for the further satisfaction of the Commons therein, the Lords have sent them the examination of Randolfe Davenport."

To which answer was presently brought by the

messengers:

"The Commons return great thanks for the Lords' honourable and just proceeding in the cause of the Lord Bishop of Landaph, and for sending the examination of Davenport; by which it doth appear that his examination taken by them doth differ much from that taken upon his oath before their Lordships."

The result was that the Bishop was not only let off with an admonition, but allowed to take his place as usual in the House without waiting till he had received it.1

Such things therefore might happen. Information sent up from the House of Commons might be erroneous in material points, and why not in the evidence against Bacon as well as against Dr. Feild? It may be said indeed that in that case the Lords would have found it out, as we see they did in this. But that does not follow. They had facilities in the one case which were wanting in the other. The Bishop was in the House when the report of the accusation by the Commons was brought up, and replied to it at once. This would of itself enlighten the Committee as to the questions to be asked. He was in continual attendance in the House, and had means of communication with members of the Committee from time to time. He was a Bishop, and there was no one in that house who thought it virtuous to disgrace a Bishop. In all which respects Bacon's case was quite different.

But though I do not doubt that if Bacon's cause had been properly discussed, it would have presented a very different aspect, yet considering all the conditions-among which the condition of his own health and spirits was not the least important-I dare say he took the wisest course. If the Lords could have been as gently disposed towards him as they were towards the Bishop, they might have found it in their consciences to dismiss him, with the loss of the Seal, to be admonished by the King. And though there was not much hope of that, there was perhaps as little hope of any alteration in their judgment to be made now even by the most skilful defence; the case being one which did not admit of defence clear

1 Lords' Journals, May 30, 1621, p. 144.