May 1.

Exaspera. tion of the Commons.

than himself to the Bohemian crown. Witnesses were called to prove the truth of the story. Floyd denied that he had ever said anything of the kind. The next day, though additional witnesses corroborated the statements previously made, Floyd persisted in his denial. Then followed a scene, the like of which has seldom been exhibited in an English Parliament. Phelips proposed that Floyd should ride with his face to the horse's tail from Westminster to the Tower, bearing on his hat a paper with the inscription, "A popish wretch, that hath maliciously scandalized his Majesty's children," and that he should then be lodged in the horrible dungeon appropriately known as Little Ease, 'with as much pain as he shall be able to endure without loss or danger of his life.' Terrible as Phelips's suggestion was, it was not harsh enough for his hearers. All consideration for the rights of free speech, all thought of proportioning the punishment to the offence, was lost in the whirpool of passion. A few words by Roe and Digges, not on behalf of Floyd, but on behalf of the Lords of the Council, who might resent any attempt to meddle with their prisoner, were followed by an immediate explosion. "If we have no precedent," said Sir George More, "let us make one. Let Floyd be whipped to the place from whence he came, and then let him be left to the Lords." "Let his beads be hung about his neck," cried Sir Francis Seymour, "and let him have as many lashes as he has beads." Sir Edward Giles hoped that he might be pilloried at Westminster, and whipped. Sir Francis Darcy was not content unless he might be twice pilloried, and twice whipped. Each member, as he shouted out his opinion, was more savage than the last. Let a hole be burnt in his tongue. Let his tongue be cut out. Let him be branded on the forehead. Let his nose and ears be lopped off. Let him be compelled to swallow his beads. Another member, with cruel irony, added that he had wished to recommend the heaviest possible punishment, but that, as he perceived that the House was inclined to mercy, he would have him whipped more than twice as far as those who offended against the ambassador.' At this stage John Finch, the future Lord Keeper of Charles I.,

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121

attempted to interpose. The House, he said, had no sworn evidence upon which to act. This reasonable suggestion was scouted by Walter, whose conduct on this day is the strongest evidence of the criminal follies into which even an honourable man may fall, in times when the principles upon which freedom and morality rest have not yet been engraved upon the public mind. "Let Floyd's lands and goods," he said, "be given to raise a force to recover the Palatinate. Let him be whipped for laughing at the loss of Prague, thereby to make him shed tears." Alone amongst the popular party, Sandys, the veteran champion of liberty, showed some glimmerings of sense. The real cause of Floyd's offence, he observed, was the difference in religion. If in his punishment his religion were touched, he would be looked upon as a martyr. Nor was it proper to whip a gentleman. Though this was

not much to say, it had its effect. All thought of branding and whipping was relinquished; yet the poor old man, who had committed no real crime, was sentenced by the House to be Sentence pilloried three times, to ride from station to station upon Floyd. on a bare-backed horse with his face to the tail, and a paper on his hat explaining the nature of his offence. Lastly, he was to pay a fine of 1,000l.1

May 2. Objections

When the members came down to take their places for the next morning's sitting, it was with the full expectation that they would be able to feast their eyes upon the sufferings of Floyd as they passed through Palace Yard. of the King. Nothing of the kind however was to be seen. They were told by the Chancellor of the Exchequer that the King had commanded him to thank them for their care of his honour, and then to ask them two questions. Could they show that they had authority to inflict punishment upon anyone who, not being one of themselves, had neither offended against their House nor against any of its members? And if they could satisfy him on this point, would they inform him how they could condemn a man who denied his fault, without being able to take evidence on oath against him? A record was

1 Commons' Journals, i. 601; Proceedings and Debates, i. 370.

then handed in, from which it appeared that in the reign of Henry IV. the Commons had acknowledged that they had nothing to do with sentencing offenders.

Hesitation of the Commons.

Now that the excitement had passed off, there were few whose opinion was of any value who did not recognise that the assertions implied in the King's questions were unanswerable. It was certain that over Floyd the Commons had no jurisdiction whatever. In fact, earlier in the session they had, in dealing with Mompesson, expressly renounced the right which they had now intemperately assumed. Noy, whose authority stood high on such questions, after denying the supposed right of the House, moved for a committee to search for precedents. Even this was more than Hakewill was willing to concede. It would, he said, be entirely useless. He had himself searched diligently for such precedents, and he was certain that none were to be found. Coke, who had been absent the day before, and who knew perfectly well what the law was, now interfered. He had no wish to bolster up an indefensible position, but he feared lest, in its recoil from a position which had been found untenable, the House might surrender claims which were fairly its own. literal sense of the record presented to them would, he showed, debar them from scrutinising even the conduct of their own members. But they were not bound to acknowledge its force. It was no Act of Parliament. "Let his tongue cleave to the roof of his mouth," he ended by saying, in his magisterial way, "who says that this House is no Court of Record. Though we have not the power of judicature in all things, yet we have it in some things." 1

The

The only question which remained was, how to recede with dignity. It was finally decided that the King should be asked to put the sentence in force by his own authority, May 3. Negotiations but that he should be told at the same time that with the the Commons did not consider themselves bound by the record which he had produced. Such a solution could not be satisfactory to anyone. In requesting the King to confer by his mere prerogative validity upon an invalid sen

King and the Lords.

1 Commons' Journals, i. 603; Proceedings and Debates, ii. 5, 13.

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123

tence, the Commons were asking him to put forth powers which in another cause they would have been the first to dispute. After some further negotiation, James signified his intention of leaving the matter in the hands of the Lords.

Accordingly the Lords, as a preliminary to their investigation of the matter, proceeded to clear up the question of jurisdiction. At a conference held on May 5, Coke had

May 5. much to say on the right of the Commons to punish

offences which affected their own House, but had nothing better to say about Floyd's case than that the words against the Electress' were spoken against the members of the House of Commons; for a daughter is part of her father, and the King is ever intended to be resident in that House.' The result of the discussion was the acceptance by both give way. sides of a declaration, which, under cover of leaving the law precisely as it stood before Floyd's name was mentioned, virtually gave the victory to the Lords.1

May 16. The Commons

As far as the poor wretch who was the unwilling subject of the dispute was concerned, it would have been better if he had been left to the tender mercies of the Commons. May 26. Floyd sen- The Lords, probably to show that they had no kindly tenced by the Lords. feeling towards Papists, raised his fine from 1,000l. to 5,000l., declared him an infamous person, whose testimony was never to be received in any court of justice, ordered him to be imprisoned for life, and to be whipped at the cart's tail from London Bridge to Westminster Hall. It was no merit of the Peers that the whipping was remitted by the King, at the instance of the Prince of Wales.

Strangely enough this abominable sentence was, at least according to the doctrine which has been ultimately adopted,

Doctrine finally

adopted

as unconstitutional as that which had been pronounced by the Commons. The Lower House did on the juris- not think it consistent with its dignity to prefer a definite charge against Floyd at the bar of the House of Lords, and, ever since that evil day on which, surrounded

diction of

the Lords.

1 Commons' Journals, i. 604, 608; Lords' Journals, iii. 119, 124; Proceedings and Debates, ii. 15, 19, 29.

2 Lords' Journals, iii. 134.

by a band of armed satellites, a misguided Sovereign attempted to drag the leaders of the Long Parliament to a trial before the Peers, it has passed into a political axiom that, except in matters in which their own members are concerned, the Lords can only exercise criminal jurisdiction upon the presentment of the House of Commons.1

This doctrine, indeed, may be supported by arguments far stronger than those which the lawyers of the seventeenth century derived from the analogy between the functions of the House of Commons and the functions of a grand jury; for, by requiring the co-operation of two independent bodies, it went far to lessen the chances of hasty and passionate injustice. However the evil of entrusting judicial functions to a political body might be mitigated, it was none the less distinctly an evil, only to be tolerated because at the beginning of the seventeenth century the remedy would have been worse than the disease. Advisable as it might be that political prosecutions should be conducted before judges and not before the House of Lords, there were no judges in existence to whom the duty of conducting such trials could safely be entrusted. Revocable at the pleasure of the Crown and, since the overthrow of Coke, having the prospect of dismissal ever dangling before their eyes, the majority of the judges could not, as long as human nature is what it is, be impartial in such matters. If it was a bad thing that a court should be guided, like the House of Lords, by its political sympathies, it would have been far worse to trust questions of high political importance to a court warped by self-interest like the King's Bench or the Common Pleas. Nor were there wanting other reasons to justify, at least for the time, the renewed claim of Parliament to exercise jurisdiction over state offences. The time had come when the nation was beginning to watch with a jealous eye the conduct of the high officers of state. The time had not yet come when a vote of its representatives would be sufficient to remove them from office. It was only by the fear of a criminal charge that they could be in any way controlled, and no tribunal of less authority than Parliament could deal with 1 Hale's Jurisdiction of the Lords, 95. See, for Floyd's case, Hargrave's preface to this work, xvi.