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order or method; and the other, an universal latitude or comprehension, that the students may have a little prenotion of every thing, like a model towards a great building. For the treatise " De regulis juris," I hold it, of all other things, the most important to the health, as I may term it, and good institutions of any laws: it is indeed like the ballast of a ship, to keep all upright and stable; but I have seen little in this kind, either in our laws or other laws, that satisfieth me. The naked rule or maxim doth not the effect: it must be made useful by good differences, ampliations, and limitations, warranted by good authorities; and this not by raising up of quotations and references, but by discourse and deducement in a just tractate. In this I have travelled

myself, at the first more cursorily,* • See above, . ... .... , ..."

p. M8-570. since with more diligence, and will go

on with it, if God and your Majesty will give me leave. And I do assure your Majesty, I am in good hope, that when Sir Edward Coke's Reports, and my rules and decisions, shall come to posterity, there will be, whatsoever is now thought, question, who was the greater lawyer? For the books Of the terms of the law, there is a poor one, but I wish a diligent one, wherein should be comprised not only the exposition of the terms of law, but of the words of all ancient records and precedents.

For the Abridgements, I could wish, if it were possible, that none might use them, but such as had read the course first, that they might serve for repertories to learned lawyers, and not to make a lawyer in haste: but since that cannot be, I wish there were a good abridgement composed of the two that are extant, and in better order. So much for the common law.

Statute law. ^or *ne reforming and recompiling of the statute law, it consisteth of four

parts.

1. The first, to discharge the books of thosr statutes, where the case, by alteration of time, is va

nished; as Lombards, Jews, Gauls, half-pence, 4c. Those may nevertheless remain in the libraries for antiquities, but no reprinting of them. The like of statutes long since expired and clearly repealed; for if the repeal be doubtful, it must be so propounded to the parliament

2. The next is, to repeal all statutes which are sleeping and not of use, but yet snaring and in force; in some of those it will perhaps be requisite to substitute some more reasonable law, instead of them, agreeable to the time; in others a simple repeal may suffice.

3. The third, that the grievousness of the penalty in many statutes be mitigated, though the ordinance stand.

4. The last is, the reducing of concurrent statutes, heaped one upon another, to one clear and uniform law. Towards this there hath been already, upon my motion, and your Majesty's direction, a great deal of good pains taken: my lord Hobart, myself, Serjeant Finch, Mr. Heneage Finch, Mr. Noye, Mr. Hackwell, and others, whose labours being of a great bulk, it is not fit now to trouble your Majesty with any farther particularity therein; only by this you may perceive the work is already advanced: but because this part of the work, which concemeth the statute laws, must of necessity come to parliament, and the houses will best like that which themselves guide, and the persons that themselves employ, the way were to imitate the precedent of the commissioners for the canon laws in 27 Hen. VIII. and 4 Edw. VI. and the commissioners for the union of the two realms, prima of your Majesty, and so to have the commissioners named by both houses; but not with a precedent power to conclude, but only to prepare and propound to parliament

This is the best way, I conceive, to accomplish this excellent work; of honour to your Majesty's times and of good to all times; which I submit to your Majesty's better judgment

AN OFFER TO KING JAMES

OF A DIGEST TO BE MADE

OF THE LAWS OF ENGLAND.

MOST EXCELLENT SOVEREIGN,

Amongst the degrees and acts of sovereign, or rather heroical honour, the first or second is the person and merit of a lawgiver. Princes that govern well are fathers of the people: but if a father breed his son well, or allow him well while he liveth, but leave him nothing at his death, whereby both he and his children, and his children's children, may be

the better, surely the care and piety of a father is not in him complete. So kings, if they make a portion of an age happy by their good government, yet if they do not make testaments, as God Almighty doth, whereby a perpetuity of good may descend to their country, they are but mortal and transitory benefactors. Domitian, a few days before he died, dreamed that a golden head did rise upon the nape of his neck; which was truly performed in the golden age that followed his times for five successions. But kings, by giving their subjects good laws, may, if they will, in their own time, join and graft this golden head upon their own necks after their deaths. Nay, they may make Nabuchodonozor's image of monarchy golden from head to foot. And if any of the meaner sort of politics, that are sighted only to see the worst of things, think, that laws are but cobwebs, and that good princes will do well without them, and bad will not stand much upon them; the discourse is neither good nor wise. For certain it is, that good laws are some bridle to bad princes, and as a very wall about government. And if tyrants sometimes make a breach into them, yet they mollify even tyranny itself, as Solon's laws did the tyranny of Pisistratus: and then commonly they get up again, upon the first advantage of better times. Other means to perpetuate the memory and merits of sovereign princes are inferior to this. Buildings of temples, tombs, palaces, theatres, and the like, are honourable things, and look big upon posterity: but Constantine the Great gave the name well to those works, when he used to call Trajan, that was a great builder, Parietaria, wall-flower, because his name was upon so many walls: so if that be the matter, that a king would turn wall-flower, or pillitory of the wall, with cost he may. Adrian's vein was better, for his mind was to wrestle a fall with time; and being a great progressor through all the Roman empire, whenever he found any decays of bridges, or highways, or cuts of rivers and sewers, or w alls, or banks, or the like, he gave substantial order for their repair with the better. He gave also multitudes of charters and liberties for the comfort of corporations and companies in decay: so that his bounty did strive with the ruins of time. But yet this, though it were an excellent disposition, went but in effect to the cases and shells of a commonwealth. It was nothing to virtue or vice. A bad man might indifferently take the benefit and ease of his ways and bridges, as well as a goo\; and bad people might purchase good charters. Surely the better works of perpetuity in princes are those, that wash the inside of the cup; such as are foundations of colleges and lectures for learning and education of youth; likewise foundations and institutions of orders and fraternities, for nobleness, enterprise, and obedience, and the like. But yet these also are but like plantations of orchards and gardens, in plots and spots of ground here and there; they do not till over the whole kingdom, and make it fruitful, as doth the establishing of good laws and ordinances; which makes a whole nation to be as a well-ordered college or foundation.

This kind of work, in the memory of times, is rare enough to show it excellent: and yet not so rare, as to make it suspected for impossible, inconvenient, or unsafe. Moses, that gave laws to the Hebrews, because he was the scribe of God himself, is fitter to be named for honour's sake to other lawgi vers, than to be numbered or ranked amongst them. Minos, Lycurgus, and Solon, are examples for

themes of grammar scholars. For ancient personages and characters now-a-days use to wax children again; though that parable of Pindarus be true, the best thing is water: for common and trivial things are many times the best, and rather despised upon pride, because they are vulgar, than upon cause or use. Certain it is, that the laws of those three lawgivers had great prerogatives. The first of fame, because they were the pattern amongst the Grecians: the second of lasting, for they continued longest without alteration: the third, of a spirit of reviver, to be often oppressed, and often restored.

Amongst the seven kings of Rome four were lawgivers: for it is most true, that a discourser of Italy saith; "there was never state so well swaddled in the infancy, as the Roman was by the virtue of their first kings; which was a principal cause of the wonderful growth of that state in after-times."

The Decemvirs' laws were laws upon laws, not the original; for they g/afted laws of Grfficia upon the Roman stock of laws and customs: but such was their success, as the twelve tables which they compiled were the main body of the laws which framed and wielded the great body of that estate. These lasted a long time, with some supplementals and the pretorian edicts in albo; which were, in respect of laws, as writing tables in respect of brass; the one to be put in and out, as the other is permanent. Lucius Cornelius Sylla reformed the laws of Rome: for that man had three singularities, which never tyrant had but he j that he was a lawgiver, that he took part with the nobility, and that he turned private man, not upon fear, but upon confidence.

Ccesar long after desired to imitate him only in the first, for otherwise he relied upon new men; and for resigning his power Seneca describeth him right; "Ca?sar gladium cito condidit, nunquam posuit," "Caesar soon sheathed his sword, but never put it off." And himself took it upon him, saying in scorn of Sylla's resignation j "Sylla nescivit literas, dictare non potuit," " Sylla knew no letters, he could not dictate." But for the part of a lawgiver, Cicero giveth him the attribute; "Ca:sar, si ab eo qua;reretur, quid egisset in toga; leges se respondisset multas et pra;claras tulisse;" "If you had asked Caisar what he did in the gown, he would have answered, that he made many excellent laws." His nephew Augustus did tread the same steps, but with deeper print, because of his long reign in peace; whereof one of the poets of his time saith,

"Pace data tenia, animum ad civilia vertit
Jura suum; legesque tulit jusussimus auctor."

From that time there was such a race of wit and authority, between the commentaries and decisions of the lawyers, and the edicts of the emperors, as both law and lawyers were out of breath. Whereupon Justinian in the end recompiled both, and made a body of laws such as might be wielded, which himself calleth gloriously, and yet not above truth, the edifice or structure of a sacred temple of justice, built indeed out of the former ruins of books, as materials, and some novel constitutions of his own. In Athens they had Sexviri, as /Eschines obscrv

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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 sufilceth the greatness of the empire of Spain, which since hath ensued.

Lewis XL 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 Csesar, 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 Caesar, 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, whieh 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 KINGS SOLICITOR, UPON THE COMMISSION OF OYER AND TERMINER HELD FOR THE

VERGE OF THE COURT.

"Lex vitinruin emcndatrix, virtutumcoinmemlatrix est."

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 j 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, forasmuch 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 shnll 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

vol.. i. 2 x

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.

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 exempted jurisdiction depending upon his person and 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.

And this jurisdiction was in ancient . . „

* , , . , Articult suwr

time executed, and since by statute Chartas, c. 3.

ratified, by the lord steward with great j^H sip ^.j 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 presentments.

Concerning the particular points and articles whereof you shall inquire, I will help your memory and mine own with order; neither will I load you, or trouble myself, with every branch of several offences, but stand upon those that are principal and most in use: the offences therefore that you are to present are of four natures.

I. The first, such as concern God and his church.

II. The second, such as concern the king and his state.

III. The third, such as concern the king's people, and are capital.

IV. The fourth, such as concern the king's people, not capital.

The service of Almighty God, upon f'0ehurchhlS wnose blessing the peace, safety, and good estate of king and kingdom doth depend, may be violated, and God dishonoured in three manners, by profanation, by contempt, and by division, or breach of unity.

_ , ,. First, if any man hath depraved or

Profanations. , ,~ ', , , f

i K. «. c. i et abused in word or deed the blessed sa

c. s. SE&cTi cament, or disturbed the preacher or

13 & i. stat. of congregation in the time of divine serWinton. . 6 6 .. , ... . . .

vice; 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.

,, , . For contempts of our church and ser

Contempts, , 1 .

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 protesfants? There be hypocrites and atheists, and so I fear

Perjury

there be amongst us ; but no open contempt of their religion is endured. If there must be recusants, it were better they lurked in the country, than here in the bosom of the kingdom.

For matter of division and breach of unity, it is not without a mystery that Bu^{,y.of Christ's coat had no seam, nor no more should the church, if it were possible. Therefore if any minister refuse to use the book of Commonprayer, or wilfully swerveth in divine service from that book; or if any person whatsoever do scandalize that book, and speak openly and maliciously in derogation of it; such men do but make a rent in the 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.

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- CTa"ing covenant with them, or taking away life by witchcraft: but now by an act in his ) ^ 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.

And here I do conclude mv first part „

. , ■•• i Supremacy

concerning religion and ecclesiastical placed with

causes: wherein it may be thought that s'taet"ce8of 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.

These offences therefore respect The king and either the safety of the king's person, the state.

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