Part 10 (1/2)

_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention being made of the a.s.sent of the king_. The sentence is in these words:

”And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000 pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall forever be incapable of any office, place, or employment in the state or commonwealth. That he shall never sit in Parliament, nor come within the verge of the court.”

And when it was demanded of him, before sentence, whether it were his hand that was subscribed to his confession, and whether he would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence.

”My lords, it is my act, my hand, my heart. _I beseech your lords.h.i.+ps to be merciful to a broken reed._”--_1 Hargrave's State Trials_, 386-7.

The sentence against Charles the First, (1648,) after reciting the grounds of his condemnation, concludes in this form:

”For all which treasons and crimes, _this court doth adjudge_, that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing his head from his body.”

The report then adds:

”This sentence being read, the president (of the court) spake as followeth: 'This sentence now read and published, is the act, sentence, judgment and resolution of the whole court.'”--_1 Hargrave's State Trials_, 1037.

Unless it had been the received ”_law of the land_” that those who tried a man should fix his sentence, it would have required an act of Parliament to fix the sentence of Charles, and his sentence would have been declared to be ”_the sentence of the law_,” instead of ”_the act, sentence, judgment, and resolution of the court_.”

But the report of the proceedings in ”the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain, before the House of Lords, for high crimes and misdemeanors in the execution of his office,”

in 1725, is so full on this point, and shows so clearly that it rested wholly with the lords to fix the sentence, and that the a.s.sent of the king was wholly unnecessary, that I give the report somewhat at length.

_After being found guilty_, the earl addressed the _lords_, for a _mitigation of sentence_, as follows:

”'I am now to expect your lords.h.i.+ps' judgment; and I hope that you will be pleased to consider that I have suffered no small matter already in the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money already; I have lost my office; I have undergone the censure of both houses of Parliament, which is in itself a severe punishment,'” &c., &c.

On being interrupted, he proceeded:

”'My lords, I submit whether this be not proper in _mitigation of your lords.h.i.+ps' sentence_; but whether it be or not, I leave myself to your lords.h.i.+ps' justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * *

”Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of what _judgment_,” (that is, _sentence_, for he had already been found _guilty_,) ”to give upon the impeachment against the said earl.” * *

”The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows:

”'My Lords, the knights, citizens, and burgesses in Parliament a.s.sembled, in the name of themselves, and of all the commons of Great Britain, did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses, in Parliament a.s.sembled, and of all the commons of Great Britain, demand _judgment_ (_sentence_) of your lords.h.i.+ps against Thomas, Earl of Macclesfield, for the said high crimes and misdemeanors.'

”Then the Lord Chief Justice King, Speaker of the House of Lords, said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned.

”'Thomas, Earl of Macclesfield, the Lords have unanimously found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the House of Commons, and do now, according to law, proceed to _judgment_ against you, which I am ordered to p.r.o.nounce.

Their lords.h.i.+ps' _judgment_ is, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto our sovereign lord the king; and that you shall be imprisoned in the tower of London, and there kept in safe custody, until you shall pay the said fine.'”--_6 Hargrave's State Trials_, 762-3-4.

This case shows that the principle of Magna Carta, that a man should be _sentenced only_ by his peers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied to a _peer of the realm_.

But the same principle, on this point, that applies to a peer of the realm, applies to every freeman. The only difference between the two is, that the peers of the realm have had influence enough to preserve their const.i.tutional rights; while the const.i.tutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts.

SECTION V.

_The Oaths of Judges._

As further proof that the legislation of the king, whether enacted with or without the a.s.sent and advice of his parliaments, was of no authority unless it were consistent with the _common law_, and unless juries and judges saw fit to enforce it, it may be mentioned that it is probable that no judge in England was ever sworn to observe the laws enacted either by the king alone, or by the king with the advice and a.s.sent of parliament.