eth, which were standing commissioners, who did watch to discern what laws waxed improper for the times, and what new law did in any branch cross a former law, and so ex officio propounded their repeal. King Edgar collected the laws of this kingdom, and gave them the strength of a faggot bound, which formerly were dispersed; which was more glory to him, than his sailing about this island with a potent fleet: for that was, as the Scripture saith, "via navis in mari," "the way of a ship in the sea ;" it vanished, but this lasteth. Alphonso the wise, the ninth of that name, king of Castile, compiled the digest of the laws of Spain, entitled the "Siete Partidas;" an excellent work, which he finished in seven years. And as Tacitus noteth well, that the capitol, though built in the beginnings of Rome, yet was fit for the great monarchy that came after; so that building of laws sufficeth the greatness of the empire of Spain, which since hath ensued. Lewis XI. had it in his mind, though he performed it not, to have made one constant law of France, extracted out of the civil Roman law, and the customs of provinces which are various, and the king's edicts, which with the French are statutes. Surely he might have done well, if, like as he brought the crown, as he said himself, from Page, so he had brought his people from Lackey; not to run up and down for their laws to the civil law, and the ordinances and the customs and the discretions of courts, and discourses of philosophers, as they use to do. King Henry VIII. in the twenty-seventh year of his reign, was authorized by parliament to nominate thirty-two commissioners, part ecclesiastical, and part temporal, to purge the canon law, and to make it agreeable to the law of God, and the law of the land; but it took not effect: for the acts of that king were commonly rather proffers and fames, than either well grounded, or well pursued: but I doubt I err in producing so many examples. For as Cicero said to Cæsar, so I may say to your Majesty, "Nil vulgare te dignum videri possit." Though indeed this well understood is far from vulgar: for that the laws of the most kingdoms and states have been like buildings of many pieces, and patched up from time to time according to occasions, without frame or model. Now for the laws of England, if I shall speak my opinion of them without partiality either to my profession or country, for the matter and nature of them, I hold them wise, just, and moderate laws; they give to God, they give to Cæsar, they give to the subject, what appertaineth. It is true they are as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs and surely as our language is thereby so much the richer, so our laws are likewise by that mixture the more complete. Neither doth this attribute less to them, than those that would have them to have stood out the same in all mutations. For no tree is so good first set, as by transplanting and grafting. I remember what happened to Callisthenes, that followed Alexander's court, and was grown into some displeasure with him, because he could not well brook the Persian adoration. At a supper, which with the Grecians was a great part talk, he was desired, the king being present, because he was an eloquent man, to speak of some theme, which he did; and chose for his theme, the praise of the Macedonian nation, which though it were but a filling thing to praise men to their faces, yet he performed it with such advantage of truth, and avoidance of flattery, and with such life, as was much applauded by the hearers. The king was the less pleased with it, not loving the man, and by way of discountenance said, It was easy to be a good orator in a pleasing theme. "But," saith he to him, "turn your style, and tell us now of our faults, that we may have the profit, and not you the praise only;" which he presently did with such quickness, that Alexander said, That malice made him eloquent then, as the theme had done before. I shall not fall into either of these extremes, in this subject of the laws of England; I have commended them before for the matter, but surely they ask much amendment for the form; which to reduce and perfect, I hold to be one of the greatest dowries that can be conferred upon this kingdom: which work, for the excellency, as it is worthy your Majesty's act and times, so it hath some circumstance of propriety agreeable to your person. God hath blessed your Majesty with posterity, and I am not of opinion that kings that are barren are fittest to supply perpetuity of generations by perpetuity of noble acts; but contrariwise, that they that have posterity are the more interested in the care of future times; that as well their progeny, as their people, may participate of their merit. Your Majesty is a great master in justice and judicature, and it were pity the fruit of that your virtue should not be transmitted to the ages to come. Your Majesty also reigneth in learned times, the more, no doubt, in regard of your own perfection in learning, and your patronage thereof. And it hath been the mishap of works of this nature, that the less learned time hath, sometimes, wrought upon the more learned, which now will not be so. As for myself, the law was my profession, to which I am a debtor: some little helps I have of other arts, which may give form to matter: and I have now, by God's merciful chastisement, and by his special providence, time and leisure to put my talent, or half talent, or what it is, to such exchanges as may perhaps exceed the interests of an active life. Therefore, as in the beginning of my troubles I made offer to your Majesty to take pains in the story of England, and in compiling a method and digest of your laws, so have I performed the first, which rested but upon myself, in some part: and I do in all humbleness renew the offer of this latter, which will require help and assistance, to your Majesty, if it shall stand with your good pleasure to employ my service therein. THE JUDICIAL CHARGE OF SIR FRANCIS BACON, KNIGHT, THE KING'S SOLICITOR, UPON THE COMMISSION OF OYER AND TERMINER HELD FOR THE VERGE OF THE COURT. "Lex vitiorum emendatrix, virtutum commendatrix est." more special regard to your presentments, than any other grand juries within the counties of this kingdom at large: for as it is a nearer degree and approach unto the king, which is the fountain of justice and government, to be the king's servant, than to be the king's subject; so this commission ordained for the king's servants and household, ought in the execution of justice to be exemplary unto other places. David saith, who was a king, "The wicked man shall not abide in my house;" as taking knowledge that it was impossible for kings to extend their care, to banish wickedness over all their land or empire; but yet at least they ought to undertake to God for their house. You are to know, and consider well, the duty and service to which you are called, and whereupon you are by your oath charged. It is the happy estate and condition of the subject of this realm of England, that he is not to be impeached in his life, lands, or goods, by flying rumours, or wandering fames and reports, or secret and privy inquisitions; but by the oath and presentment of men of honest condition, in the face of justice. But this happy estate of the subject will turn to hurt and inconvenience, if those that hold that part which you are now to perform shall be negligent and remiss in doing their duty; for as of two evils it were better men's doings were looked into over-strictly and severely, than that there should be a notorious impunity of malefactors; as was well and wisely said of ancient time, "a man were better live where nothing is lawful, than where all things are lawful." This therefore rests in your care and conscience, foras-empted jurisdiction depending upon his person and much as at you justice begins, and the law cannot pursue and chase offenders to their deserved fall, except you first put them up and discover them, whereby they may be brought to answer; for your verdict is not concluding to condemn, but it is necessary to charge, and without it the court cannot proceed to condemn. Considering therefore that ye are the eye of justice, ye ought to be single, without partial affection; watchful, not asleep, or false asleep in winking at offenders, and sharp-sighted to proceed with understanding and discretion: for, in a word, if you shall not present unto the court all such offences, as shall appear unto you either by evidence given in, or otherwise, mark what I say, of your own knowledge, which have been committed within the verge, which is as it were the limits of your survey, but shall smother and conceal any offence willingly, then the guiltiness of others will cleave to your consciences before God; and besides, you are answerable in some degree to the king and his law for such your default and suppression; and therefore take good regard unto it, you are to serve the king and his people, you are to keep and observe your oath, you are to acquit yourselves. But there is yet more cause why you should take 2 x VOL. I. We see further, that the law doth so esteem the dignity of the king's settled mansion-house, as it hath laid unto it a plot of twelve miles round, which we call the verge, to be subject to a special and ex great officers. This is a half-pace or carpet spread about the king's chair of estate, which therefore ought to be cleared and voided more than other places of the kingdom; for if offences should be shrouded under the king's wings, what hope is there of discipline and good justice in more remote parts ? We see the sun, when it is at the brightest, there may be perhaps a bank of clouds in the north, or the west, or remote regions, but near his body few or none; for where the king cometh, there should come peace and order, and an awe and reverence in men's hearts. Articuli super R. 2. c. 3. 13. C. 12. And this jurisdiction was in ancient time executed, and since by statute ratified, by the lord steward with great ceremony, in the nature of a peculiar king's bench for the verge; for it was thought a kind of eclipsing to the king's honour, that where the king was, any justice should be sought but immediately from his own officers. But in respect that office was oft void, this commission hath succeeded, which change I do not dislike; for though it hath less state, yet it hath more strength legally: therefore I say, you that are a jury of the verge, should lead and give a pattern unto others in the care and conscience of your presentiments. IV. The fourth, such as concern the king's gation of it; such men do but make a rent in the people, not capital. Profanations. 1 E. 6. c. 1. et 1 El. c 2.1 M. Winton. First, if any man hath depraved or abused in word or deed the blessed sac. 3. 5 E. 6. c. 4. crament, or disturbed the preacher or 13 E. 1. Stat. of congregation in the time of divine service; or if any have maliciously stricken with weapon, or drawn weapon in any church or church-yard; or if any fair or market have been kept in any church-yard; these are profanations within the purview of several statutes, and those you are to present for holy things, actions, times, and sacred places, are to be preserved in reverence and divine respect. cusancy. For contempts of our church and serContempts, namely, Re- vice, they are comprehended in that known name, which too many, if it pleased God, bear, recusancy; which offence hath many branches and dependencies; the wife-recusant, she tempts; the church-papist, he feeds and relieves; the corrupt schoolmaster, he soweth tares; the dissembler, he conformeth and doth not communicate. Therefore if any person, man or woman, wife or sole, above the age of sixteen years, not having some lawful excuse, have not repaired to church according to the several statutes; the one, for the weekly, the other, for the monthly repair, you are to present both the offence and the time how long. Again, such as maintain, relieve, keep in service of livery, recusants, though themselves be none, you are likewise to present; for these be like the roots of nettles, which sting not themselves, but bear and maintain the stinging leaves: so if any that keepeth a schoolmaster that comes not to church, or is not allowed by the bishop, for that infection may spread far so such recusants as have been convicted and conformed, and have not received the sacrament once a year, for that is the touch-stone of their true conversion and of these offences of recusancy take you special regard. Twelve miles from court is no region for such subjects. In the name of God, why should not twelve miles about the king's chair be as free from papist-recusants, as twelve miles from the city of Rome, the pope's chair, is from protestants? There be hypocrites and atheists, and so I fear : garment, and such are by you to be inquired of. But much more, such as are not only differing, but in a sort opposite unto it, by using a superstitious and corrupted form of divine service; I mean, such as say or hear mass. Perjury. These offences which I have recited to you, are against the service and worship of God: there remain two which likewise pertain to the dishonour of God; the one is, the abuse of his name by perjury; the other is, the adhering to God's declared enemies, evil and outcast spirits, by conjuration and witchcraft. For perjury, it is hard to say whether it be more odious to God, or pernicious to man; for an oath, saith the apostle, is the end of controversies; if therefore that boundary of suits be taken away or mis-set, where shall be the end? Therefore you are to inquire of wilful and corrupt perjury in any of the king's courts, yea, of court-barons and the like, and that as well of the actors, as of the procurer and suborner. For witchcraft, by the former law it Conjuration was not death, except it were actual and and witchgross invocation of evil spirits, or mak- craft. ing covenant with them, or taking away life by witchcraft but now by an act in his 1 Jac. c. 1, 2. Majesty's times, charms and sorceries in certain cases of procuring of unlawful love or bodily hurt, and some others, are made felony the second offence; the first being imprisonment and pillory. state. And here I do conclude my first part Supremacy concerning religion and ecclesiastical placed with causes: wherein it may be thought that offences of I do forget matters of supremacy, or of Jesuits, and seminaries, and the like, which are usually sorted with causes of religion: but I must have leave to direct myself according to mine own persuasion, which is, that, whatsoever hath been said or written on the other side, all the late statutes, which inflict capital punishment upon extollers of the pope's supremacy, deniers of the king's supremacy, Jesuits and seminaries, and other offenders of that nature, have for their principal scope, not the punishment of the error of conscience, but the repressing of the peril of the estate. This is the true spirit of these laws, and therefore I will place them under my second division, which is of offences that concern the king and his estate, to which now I come. The king's person. or the safety of his estate and kingdom, which though they cannot be dissevered in deed, yet they may be distinguished in speech. First then, if any have conspired against the life of the king, which God have in his | custody or of the queen's Majesty, or of the most noble prince their eldest son; the very compassing and inward imagination thereof is high treason, if it can be proved by any fact that is overt for in the case of so sudden, dark, and pernicious, and peremptory attempts, it were too late for the law to take a blow before it gives; and this high treason of all other is most heinous, of which you shall inquire, though I hope there be no cause. Privy coun cil. There is another capital offence that hath an affinity with this, whereof you here within the verge are most properly to inquire; the king's privy council are as the principal watch over the safety of the king, so as their safety is a portion of his if therefore any of the king's servants within his cheque-roll, for to them only the law extends, have conspired the death of any the king's privy council, this is felony, and thereof you shall inquire. And since we are now in that branch Representation of his of the king's person, I will speak also of the king's person by representation, and the treasons which touch the same. person. rebellion. hearts. Therefore if any person have soliInvasion and cited or procured any invasion from foreigners; or if any have combined to raise and stir the people to rebellion within the realm; these are high treasons, tending to the overthrow of the estate of this commonwealth, and to be inquired of. The third part of practice hath Allenation of divers branches, but one principal root in these our times, which is the vast and over-spreading ambition and usurpation of the see of Rome; for the pope of Rome is, according to his late challenges and pretences, become a competitor and corrival with the king, for the hearts and obediences of the king's subjects: he stands for it, he sends over his love-tokens and brokers, under colour of conscience, to steal and win away the hearts and allegiances of the people, and to make them as fuel ready to take fire upon any his commandments. This is that yoke which this kingdom hath happily cast off, even at such time when the popish religion was nevertheless continued, and that divers states, which are the pope's vassals, do likewise begin to shake off. Eliz. c. 1. Je 28 El. c. 1. If therefore any person have mainSupremacy, tained and extolled the usurped author- treason, &c. 5 ity of the bishop of Rome within the suits. 3 Jac. king's dominions, by writing, preaching, cap. 4, et 5. or deed, advisedly, directly, and maliciously; or if any person have published or put in ure any of the pope's bulls or instruments of absolution; or if any person have withdrawn, and reconciled, any of the king's subjects from their obedience, or been withdrawn and reconciled; or if any subject have refused the second time to take the oath of supremacy lawfully tendered; or if any Jesuit or seminary come and abide within this realm; these are by several statutes made cases of high treason, the law accounting these things as preparatives, and the first wheels and secret motions of seditions and revolts from the king's obedience. Of these you are to inquire, both of the actors and of their abettors, comforters, receivers, maintainers, and concealers, which in some cases are traitors, as well as the principal, in some cases in præmunire, in some other in misprision of treason, which I will not stand to distinguish, and in some other, felony ; as namely, that of the receiving and relieving of Jesuits and priests; the bringing in and dispersing of Agnus Dei's, crosses, pictures, or such trash, is likewise præmunire: and so is the denial to take the oath of supremacy the first time. And because in the disposition of a Military men. state to troubles and perturbations, military men are most tickle and dangerous; therefore if any of the king's subjects go over to serve in foreign parts, and do not first endure the touch, that is, take the oath of allegiance; or if he have borne office in any army, and do not enter into bond with sureties as is prescribed, this is made felony; and such as you shall inquire. 13 El. c. 2. 23 El. c. 1. Agnus Dei's. Now come I to the third part of my The people, division; that is, those offences which capital. concern the king's people, and are capital; which nevertheless the law terms offences against the crown, in respect of the protection that the king hath of his people, and the interest he hath in them and their welfare; for touch them, touch the king. These offences are of three natures: the first concerneth the conservation of their lives; the second, of honour and honesty of their persons and families; and the third, of their substance. Life. ravishment of women, of the taking of women out 1 Jac. c. 11. where there was not first seven years' absence, and no notice that the party so absent was alive, and other felonies against the honesty of life. Substance. First for life. I must say unto you in general, that life is grown too cheap in these times, it is set at the price of words, and every petty scorn and disgrace can have no othering them, or abusing them; of double marriages, reparation; nay so many men's lives are taken away with impunity, that the very life of the law is almost taken away, which is the execution; and therefore though we cannot restore the life of those men that are slain, yet I pray let us restore the law to her life, by proceeding with due severity against the offenders; and most especially this plot of ground, which, as I said, is the king's carpet, ought not to be stained with blood, crying in the ears of God and the king. It is true nevertheless, that the law doth make divers just differences of life taken away; but yet no such differences as the wanton humours and braveries of men have under a reverend name of honour and reputation invented. The highest degree is where such a one is killed, anto whom the offender did bear faith and obedience; as the servant to the master, the wife to the husband, the clerk to the prelate; and I shall ever add, for so I conceive of the law, the child to the father or the mother; and this the law terms petty treason. The second is, Where a man is slain upon forethought malice, which the law terms murder; and it is an offence horrible and odious, and cannot be blanched, nor made fair, but foul. The third is, Where a man is killed upon a sudden heat or affray, whereunto the law gives some little favour, because a man in fury is not himself, ira furor brevis, wrath is a short madness; and the wisdom of law in his Majesty's time hath made a subdivision of the stab given, where the party stabbed is out of defence, and had not given the first blow, from other manslaughters. 1 Jac. c. 8. The fourth degree is, That of killing a man in the party's own defence, or by misadventure, which though they be not felonies, yet nevertheless the law doth not suffer them to go unpunished: because it doth discern some sparks of a bloody mind in the one, and of carelessness in the other. And the fifth is, Where the law doth admit a kind of justification, not by plea, for a man may not, that hath shed blood, affront the law with pleading not guilty; but when the case is found by verdict, being disclosed upon the evidence; as where a man in the king's highway and peace is assailed to be murdered or robbed; or when a man defending his house, which is his castle, against unlawful violence; or when a sheriff or minister of justice is resisted in the execution of his office; or when the patient dieth in the chirurgeon's hands, upon cutting or otherwise for these cases the law doth privilege, because of the necessity, and because of the innocency of the intention. Thus much for the death of man, of which cases you are to inquire together with the accessories before and after the fact. For the third kind, which concerneth men's substance, you shall inquire of burglaries, robberies, cutting of purses, and taking of any thing from the person: and generally other stealths, as well such as are plain, as those that are disguised, whereof I will by and by speak: but first I must require you to use diligence in presenting especially those purloinings and embezzlements, which are of plate, vessel, or whatsoever within the king's house. The king's house is an open place; it ought to be kept safe by law, and not by lock, and therefore needeth the more severity. Force. 4. The fourth, breach and inobservance of certain wholesome and politic laws for government. For the first, you shall inquire of riots and unlawful assemblies, of forcible entries, and detainers with force; and properly of all assaults of striking, drawing weapon, or other violence within the king's house, and the precincts thereof for the king's house, from whence example of peace should flow unto the farthest parts of the kingdom, as the ointment of Aaron's head to the skirts of his garment, ought to be sacred and inviolate from force and brawls, as well in respect of reverence to the place, as in respect of danger of greater tumult, and of ill example to the whole kingdom; and therefore in that place all should be full of peace, order, regard, forbearance, and silence. Besides open force, there is a kind of force that cometh with an armed hand, but disguised, that is no less hateful and hurtful; and that is, abuse and oppression by authority. And therefore you shall inquire of all extortions, in officers and ministers ; as sheriff's, bailiffs of hundreds, escheators, coroners, constables, ordinaries, and others, who by colour of office do poll the people. |