1621.] CASES REQUIRING DISTINCTION. 263 was sufficient to justify them in pronouncing, without further consideration, that he was guilty of "corruption;" but as to the degree and quality of the corruption it supplied a good deal of information which was new to them, and demanded (if the punishment was to be duly apportioned to the crime) a great deal of consideration, and raised several questions which ought to have been entertained, and the law concerning them enquired, settled, and declared. It was a cause of very great importance; almost, if not absolutely, the first of its kind. They could find no precedent near enough to serve as a guide. Some definition of the offence, recognized by the law, there may have been; but it was certainly not so familiar as not to need quoting, or so distinct as to make it an easy matter to say which of the confessed acts came within, and which lay without it. It is true that there must have been a strong popular impression of their illegality; for it was assumed and acted on without enquiry or contradiction but a Court not learned in the law, deciding without appeal, has no right to go upon popular impressions, however general and however strong. If they had asked the Judges what constituted judicial bribery, and by what law it was made penal, and what the legal penalty was, the Judges (their official advisers in such matters) would have supplied them with the best opinion that could be had. Some questions there certainly were which had a very important bearing upon this particular case, and on which the popular impression was not decided. If the list of gratuities confessed to have been received, taken with the circumstances as stated in the confession, be carefully examined, it will be found that most of them were received after the cause was ended, and without relation to any precedent promise. This Bacon himself" conceived to be no fault." "By the opinion of the civilians," it seemed, he said, "to be no offence." Upon that point at least, therefore, there was a doubt which it could not be right for such a Court, pronouncing sentence in such a cause, to pass in silence. It will be found also that more than half the charges rest upon the depositions of single witnesses: and though Coke would have been ready to assure them that the single witness whose evidence incriminates himself is more to be believed than three who have committed no crime, the rule would hardly apply in this case, when every witness whose evidence might convict him of the crime had been specially protected from all danger of the penalty. Facts stated on the authority of a single witness, and denied or admitted with material differences by the party accused, clearly form a distinct class. Nor could those which rested upon the evidence of more than one witness be admitted all alike, without questions or distinctions, as proved. Why did the Lords make such a point of having a more particular confession, when the confession before them admitted that the case deserved condemnation and censure? Because confession was required "to ground their sentence; " that is to say, because in a case which had not been tried they could not take for proved anything which had not been confessed. If so, it followed that where a fact was either denied in the confession or admitted with a difference, it ought to have been either omitted altogether from the grounds of censure or retained with the correction: so much of it as was confessed being taken for proved, and no more. Justice clearly required that cases of this kind should be distinguished from the rest, and treated separately. Even those which were best proved and most to the purpose-cases of gifts confessed to have been received from suitors whose causes had not been finally disposed of-were not all alike. There were many among them in which the suit passed through so many stages, and came back again so often after seeming to be disposed of, that a man with many other things to think of might easily be unaware that he had anything more to do with it, and yet it might be still pending. If the ignorance was real, such cases belonged morally to the class of gifts received after the cause was at an end, and were entitled to the same distinction. The collection was further swelled by cases in which Bacon had acted as arbitrator or mediator by consent of the parties, and in which one or both, feeling themselves obliged by his services, had expressed the sense of obligation after the fashion of the time, by a present of money or money's worth. Such presents were analogous to those usually made to negotiators or ambassadors: which nobody thought wrong. These again, if admitted into the charge at all (which I think they should not have been) ought at least to have been distinguished in the judgment as not implying corruption. Others again were not gifts at all, but sums of money borrowed, and recoverable as debts ;2 and though all money transactions between the Judge and the suitor may have been justly censurable, as exposing the Judge to the suspicion, and likely to betray him into the practice, of corruption, yet a money-lender, like a wine-merchant or a tailor, may happen to have a suit in Chancery; and as the Lord Chancellor might in the one case order his usual supply of wine or 1 Southampton, 24 April. Elsing, p. 14. 2 Three of these cases gave rise after Bacon's death to a curious question. Being claimed by the lenders as debts due to them from the estate, the executors pleaded that they had been decided by the House of Lords to be bribes. See note to Lord Campbell's Lives of the Chancellors.' 3rd edition, vol. iii. p. 146. 1621.1 POINTS REQUIRING CONSIDERATION. 265 clothes without incurring suspicion of a corrupt intention, so in the other he might borrow a sum of money (being a practice to which he had all his life been too much addicted) without deserving it. For the formation of a just judgment, it was obviously necessary to take all points like these into consideration. Not being themselves men of science in law, nor disposed to take advice of such as were, we must suppose that the Lords went by common sense; and common sense must have cried out that if they meant to make a precedent for the benefit of posterity in passing judgment upon a great offender, they must clearly understand and make understood what the offences were of which he had been proved guilty;-that their first business therefore was to ascertain how many of the facts alleged were proved true, whether by evidence or confession; then, of those proved true, how many implied corruption or otherwise transgressed the law; and lastly, of those proved corrupt in construction of law, how many implied real corruption in the shape of a bargain which was to influence the judgment. Common sense must have told them that this could only be done by taking the charges separately, and discussing them one by one; and though they were not a body well qualified or well trained for such discussions, the order of proceeding was obvious and easy. The charges were set out in twenty-eight articles. To each article was appended Bacon's confession and declaration; which included all the defence which he thought fit to offer. Each charge might be taken in succession, and the question debated whether upon that charge he was guilty or not guilty. All reasonable considerations should have found in a committee of the whole House some advocate to represent them: and if questions of law intervened, the Judges were within reach and would advise. When the whole list had been gone through in this way, they would have known, or done their best to know, what the offence amounted to; and would have been in a condition to consider what punishment it deserved. And here also they would or should have met with a question, materially affecting the moral aspect of these practices, and material therefore to the apportionment of the penalty; namely, What was the custom and what was the opinion with regard to gifttaking by Judges in those days? How far was the practice common, and how far was it tolerated? Had Bacon in short done more than other Chancellors had been in the habit of doing, and doing without reproach? It is a question hardly possible to answer now. But at that time in a committee of the whole House of Lords there were probably some who could have thrown light upon it if they chose. On comparing the very moderate fees and allowances assigned at that time to the officers and ministers of justice-10477. 15s. to the Lord Chancellor, 2381. 68. 8d. to the Lord Chief Justice, 1327. 17s. 4d. to the Lord Chief Baron, etc.'-with the considerable incomes spent or the large fortunes accumulated during the tenure of those offices, many people think that a great part of their receipts must really have been derived from gratuities of one kind or another. And if as searching a light could be thrown upon the proceedings of former Chancellors, I should not be surprised to find that the taking of gifts from suitors was one of those practices which though everybody knew them to be illegal, and nobody would undertake publicly to justify them, were nevertheless not only generally indulged in by those who received the profit, but generally known of and tolerated by others who had no share in it,that the silver flagons sent by the suitor to Sir Thomas More 2 were an example of the ordinary practice, while the witty and graceful rebuke represented the exceptional integrity of the man: one of those moral geniuses that rise into eminent place once perhaps in a century (only that in that case there must have been fourteen others between the birth of More and of Christianity, and I think it would be difficult to count them up) and illustrate the practice of their times by contrast. Upon this point however I have not myself seen any evidence which seems conclusive; and I only say here that it was one which the House of Lords in its capacity of Supreme Court of Justice had to consider and take into account. When they had settled this, there would still remain the great question of all-whether there was reason to believe that in any one of these cases the judgment had been in any way influenced by the gift: a question which is not distinctly raised by the accusation, because no such charge is contained in any of the articles; but which makes so great a difference in the moral character of the transaction, that in apportioning the punishment to the offence they could not pass it by. Any man seriously endeavouring to understand and estimate From an old MS. formerly in Tenison's Library, entitled "A description as well of his M. Courts of Record as of his M. most hon. household, &c,," collected in anno 1614, 2" Sir Thomas More had sent him by a suitor in the Chancery two silver flagons. When they were presented by the gentleman's servant he said to one of his men ; Have him to the cellar and let him have of my best wine, and turning to the servant, said, Tell thy master, friend, if he like it let him not spare it." Apophthegms, no. 24. Lit. and Prof. Works; vol. ii. p. 128. 1621.] DELIBERATION ON THE QUESTION OF GUILT. 267 the nature of Bacon's delinquency must feel that without taking things like these into consideration, it cannot be done and if so, it must have been the business of the Lords to consider them before they pronounced sentence. How they set about it we have not, till within the last three years, had any means of knowing, further than that what they did they did quickly; for the Lords' Journals tell us nothing of what passed in committee, except the result as embodied in the subsequent action of the House. But the publication in 1870 by the Camden Society of Elsing's Notes of the Debates during part of this session, has given us some insight into the interior and though the notes are short, we gain from them a tolerably clear idea of the manner in which this important deliberation was transacted. The seal had been delivered up and put in commission on the 1st of May. On the 2nd, towards the end of the sitting, "Agreed to proceed in the business of the Lord Chancellor to-morrow morning. SOUTHAMPTON. The L. Chancellor to have notice and warning to be here then to hear his sentence by 9. The collection of the charges, proofs, and confession, to be considered of by a Committee. ARCH. CANTERBURY. The Lower House to have notice that they come to crave judgment. Agreed, the Gentleman Usher and the Serjeant-at-Arms to warn the L. Chancellor, and to bring him hither. The House resumed. * The Usher and Serjeant to summon the L. Chancellor to appear here in person to-morrow by 9. All the Judges to be here in their robes, save 1 in each court. The Lower House to be sent for. The Serjeant to carry his mace, and to show it him, but not to carry it before him as he did when he had the seal. The Gentleman Usher and Mr. Serjeant. That they find the L. Chan. cellor is sick in bed. He answered that he is so sick that he is not able to repair hither; that this is no excuse, for if he had been well he would willingly have come. RICHMOND. The charge and confession of the L. Chancellor to be read and compared. It was read per Mr. Attorney at the clerk's table. L. CHIEF JUSTICE. First to know orders : 1. Whether to mention the rejection of the former imperfect answer.1 1 (marginal note) To resolve on this after the sentence agreed on. |