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or the safely of hia estate and kingdom, which though they cannot be dissevered in deed, yet they
may be distinguished in speech. First Tperson8S 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.
There is another capital offence that Pr,TJj1C0Un" ha,h iin affinity with this, whereof you
here within the verge are most properly to inquire; the king's privy council are as the p cipal watch over the safety of the king, so as tt 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.
.Represent s'nce we are now 'n tnat ',ratlcn
ationofliis of the king's person, I will speak also person. 0j ^e king's person by representation,
and the treasons which touch the same.
The king's person and authority is represented in three things; in his seals, in his moneys,and in his principal magistrates: if therefore any have counterfeited the king's great seal, privy seal, or seal manual; or counterfeited, clipped, or scaled his moneys, or other moneys current, this is high treason; so is it to kill certain great officers or judges executing their office.
We will now pass to those treasons which concern the safety of the king's estate, which are of three kinds, answering to three perils which may happen to an estate; these perils arc, foreign invasion, open rebellion and sedition, and privy practice to alienate and estrange the hearts of the subjects, and to prepare them either to adhere to enemies, or to burst out into tumults and commotions of themselves.
Therefore if any person have soliInreabemonnd c^te^ 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 A"ehearts! °f 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 popisli religion was nevertheless continued, and that divers states, which are the pope's vassals, do likewise begin to shake off.
If therefore any person have main- supremacy,
tained and extolled the usurped author- \[f3Son
- , ... Pt» i lifu. c. 1. Je
lty of the bishop of Rome within the suits, a Jan.
king's dominions, by writing, preaching, cap' 4' et 3or 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 lake 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 JaEi'c.?! some cases are traitors, as well as the principal, in some cases in prmmunire, 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 Defs, crosses, pictures, or such Aqnu, trash, is likewise prtpmunire: and so is the denial to take the oath of supremacy the first time.
And because in the disposition of a
,, , r , 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.
Lastly, because the vulgar people are propnecie, sometimes led with vain and fond prophecies; if any such shall be published, to the end to move stirs or tumults, this is not felony, but punished by a year's imprisonment and loss of goods; and of this also shall you inquire.
You shall likewise understand lhat the escape of any prisoner committed for treason, is treason; whereof you are likewise to inquire.
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.
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 other 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, onto 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 brevix, wrath is a short madness; and the i Jac c 8 w'sdom 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.
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 lawdoth 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 second kind, which concerns HC"u?i? 01 ,ne honour and chasteness of persons and families; you are to inquire of the
ravishment of women, of the taking of women ou; of the possession of their parents or ( Jac c guardians against their will, or marrying them, or abusing them; of double marriages, 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.
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 needetli the more severity.
Now for coloured and disguised rob- gg & j Ar&_ beries; I will name two or three of oM nptr them: the purveyor that takes without 31'h'"'*!'1 warrant, is no better than a thief, and JJ ti 5 e 1 it is felony. Ine servant that hath the keeping of his Majesty's good6, and going away with them, though he came to the possession of them lawfully, it is felony. Of these you shall likewise inquire, principals and accessories. The voluntary escape of a felon is also felony.
For the last part, which is of offences concerning the people not capital, they jJot^aoUs'i' are many: but I will select only such as I think fittest to be remembered unto you, still dividing, to give you the better light. They are of four natures.
1. The first, is matter of force and outrage.
2. The second, matter of fraud and deceit.
3. Public nuisances and grievances.
4. The fourth, breach and inobservance of certain wholesome and politic laws for government.
For the first, vou shall inquire of _ , *, rorce.
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 sheriffs, bailiffs of hundreds, escheat ors, coroners, constables, ordinaries, and others, who by colour of office do poll the people.
For frauds and deceits, I do chiefly commend to your care the frauds and deceits in that which is the chief means of all just contract and permutation, which is, weights and measures; wherein, all hough God hath pronounced that a false weight is an abomination, yet the abuse is so common and so general, I mean of weights, and I speak upon knowledge and late examination, that if one were to build a church, he should need but false weights, and not seek them far, of the piles of brass to make the bells, and the weights of lead to make the battlements: and herein you are to make special inquiry, whether the clerk of the market within the verge, to whom properly it appertains, hath done his duty.
. For nuisances and grievances, I will
Nuisance. , . , ,
for the present only single out one, that
ye present the decays of highways and bridges; for where the Majesty of a king's house draws recourse and access, it is both disgraceful to the king, and diseaseful to the people, if the ways near-abouts be not fair and good; wherein it is strange to see the chargeable pavements and causeways in the avenues and entrances of towns abroad beyond the seas; whereas London, the second city at least of Europe, in glory, in greatness, and in wealth, cannot be discerned by the fairness of the ways, though a little perhaps by the broadness of them, from a village.
For the last part, because I pass these things over briefly, I will make mention unto you of three laws.
1. The one, concerning the king's pleasure.
2. The second, concerning the people's food.
3. And the third, concerning wares and manufactures.
fireach of statutes.
You shall therefore inquire of the King s pleaunlawful taking partridges and phea- sure sants or fowl, the destruction of the eggs of the wild-fowl, the killing of hares or deer, and the selling of venison or hares: for that which is for exercise, and sport, and courtesy, should not be turned to gluttony and sale victual.
You shall also inquire whether bakers and brewers keep their assize, and whether as well they as butchers, innholders and victuallers, do sell that which is wholesome, and at reasonable prices, and whether they do link and combine to raise prices.
Lastly, you shall inquire whether Mgnu6cturefc the good statute be observed, whereby a man may have that he thinketh he hath, and not be abused or mis-served in that he buys: I mean that statute that requireth that none use any manual occupation but such as have been seven years apprentice to it; which law being generally transgressed, makes the people buy in effect chaff for corn; for that which is mis-wrought will mis-wear.
There be many more things inquirable by you throughout all the former parts, which it were overlong in particular to recite. You may be supplied either out of your own experience, or out of such bills and informations as shall be brought unto you, or upon any question that you shall demand of the court, which will be ready to give you any farther direction as far as is fit: but these which I have gone through, are the principal points of your charge; which to present, you have taken the name of God to witness; and in the name of God perform it.
A CHARGE DELIVERED
BY SIR FRANCIS BACON, KNIGHT,
THE KING S SOLICITOR-GENERAL,
ARRAIGNMENT OF THE LORD SANQUHAR,
IN THE KING'S BENCH AT WESTMINSTER.
The Lord Sanquhar, a Scotch nobleman, having, in private revenue, suborned Robert Carlile to murder John Turner, master of fence, thought, by his greatness, to have liorne it out; but the king, respecting nothing so much as justice, would not suffer nobility to be a shelter for villany; but, according to law, on the 29th of June, 1612, the said Lord Sanquhar, having been arraigned and condemned, by the name of Robert Creighton, Esq. was before Westminster-hall Gate executed, where he died very penitent. At whose arraignment my lord Bacon, then Solicitor-General to King James, made this speech following:
In this cause of life and death, the jury's part is in effect discharged; for after a frank and formal confession, their labour is at an end: so that what
hath been said by Mr. Attorney, or shall be said by myself, is rather convenient than necessary.
My lord Sanquhar, your fault is great, and cannot be extenuated, and it need not be aggravated; and if it needed, you have made so full an anatomy of it out of your own feeling, as it cannot be matched by myself, or any man else, out of conceit; so as that part of aggravation I leave. Nay, more, this christian and penitent course of yours draws me thus far, that 1 will agree, in some sort extenuates it: for certainly, as even in extreme evils there are degrees; so this particular of your offence is such, as though it be foul spilling of blood, yet there are more foul: for if you had sought to take away a man's life for his vineyard, as Ahab did; or for envy, as Cain did; or to possess his bed, as David did; surely the murder had been more odious.
Your temptation was revenge, which the more natural it is to man, the more have laws both divine and human sought to repress it; " Mihi vindicta." But in one thing you and I shall never agree, that generous spirits, you say, are hard to forgive: no, contrariwise, generous and magnanimous minds are readiest to forgive; and it is a weakness and impotency of mind to be unable to forgive;
Corpora inagnanimo satis est prostrasse leoni.
But howsoever murders may arise from several motives, less or more odious, yet the law both of God and man involves them in one degree, and therefore you may read that in Joab's case, which was a murder upon revenge, and matcheth with your case ; he for a dear brother, and you for a dear part of your own body; yet there was a severe charge given, it should not be unpunished.
And certainly the circumstance of time is heavy upon you : it is now five years since this unfortunate man Turner, be it upon accident, or be it upon despite, gave the provocation, which was the seed of your malice. All passions are suaged with time: love, hatred, grief; all fire itself burns out with time, if no new fuel be put to it. Therefore for you to have been in the gall of bitterness so long, and to have been in a restless chace of this blood so many years, is a strange example; and I must tell you plainly, that I conceive you have sucked those affections of dwelling in malice, rather out of Italy and outlandish manners, where you have conversed, than out of any part of this island, England or Scotland.
But that which is fittest for me to spend time in, the matter being confessed, is to set forth and magnify to the hearers the justice of this day; first of God, and then of the king.
My lord, you have friends and entertainments in foreign parts; it had been an easy thing for you to set Carlile, or some other bloodhound on work, when your person had been beyond the seas; and so this news might have come to you in a packet, and you might have looked on how the storm would pass: but God bereaved you of this foresight, and closed you here under the hand of a king, that though abundant in clemency, yet is no less zealous of justice.
Again, when you came in at Lambeth, you might have persisted in the denial of the procurement of the fact; Carlile, a resolute man, might perhaps have cleared you, for they that are resolute in mischief,
are commonly obstinate in concealing the procurers, and so nothing should have been against you but presumption. But then also God, to take away all obstruction of justice, gave you the grace, which ought indeed to be more true comfort to you, than any device whereby you might have escaped, to make a clear and plain confession.
Other impediments there were, not a few-, which might have been an interruption to this day's justice, had not God in his providence removed them.
But, now that I have given God the honour, let me give it likewise where it is next due, which is, to the king our sovereign.
This murder was no sooner committed, and brought to his Majesty's ears, but his just indignation, wherewith he first was moved, cast itself into a great deal of care and providence to have justice done. First came forth his proclamation, somewhat of a rare form, and devised, and in effect dictated by his Majesty himself; and by that he did prosecute the offenders, as it were with the breath and blast of his mouth. Then did his Majesty stretch forth his long arms, for kings have long arms when they will extend them, one of them to the sea, where he took hold of Grey shipped for Sweden, who gave the first light of testimony; the other arm to Scotland, and took hold of Carlile, ere he was warm in his house, and brought him the length of his kingdom under such safe watch and custody, as he could have no means to escape, no nor to mischief himself, no nor learn any lessons to stand mute; in which cases, perhaps, this day's justice might have received a stop. So that I may conclude his Majesty hath showed himself God's true lieutenant, and that he is no re-' specter of persons ; but the English, Scottish, nobleman, fencer, are to him alike in respect of justice.
Nay, I must say farther, that his Majesty hath had, in this, a kind of prophetical spirit; for what time Carlile and Grey, and you, my lord, yourself, were fled no man knew whither, to the four winds, the king ever spake in a confident and undertaking manner, that wheresoever the offenders were in Europe, he would produce them forth to justice; of which noble word God hath made him master.
Lastly, I will conclude towards you, my lord, that though your offence hath been great, yet your confession hath been free, and your behaviour and speech full of discretion; and this shows, that thougU you could not resist the tempter, yet you bear a christian and generous mind, answerable to the noble family of which you are descended. This I commend unto you, and take it to be an assured token of God"s mercy and favour, in respect whereof all worldly things are but trash; and so it is fit for you, as your state now is, to account them. And this is all I will say for the present
[iVn/c The reader for his fuller information in this story of the lord Sanquhar, is desired to peruse the case in the ninth book of the lord Coke's Reports; at the end of which the whole series of the murder and trial is exactly related.] Mr LORDS,
THE KIHO'S ATTORNBY-GBnBRAL,
UPON AN INFORMATION IN THE STAR-CHAMBER AGAINST PRIEST AND WRIGHT. WITH THE DECREE OF THE STAR-CHAMBER IN THE SAME CAUSE.
I Thouqht it fit for my place, and for these times, to bring to hearing before your lordships some cause touching private duels, to see if this court can do any good to tame and reclaim that evil which seems unbridled. And I could have wished that I had met with some greater persons, as a subject for your censure, both because it had been more worthy of this presence, and also the better to have showed the resolution myself hath to proceed without respect of persons in this business: but finding this cause on foot in my predecessor's time, and published and ready for hearing, I thought to lose no time in a mischief that groweth every day: and besides, it passes not amiss sometimes in government, that the greater sort be admonished by an example made in the meaner, and the dog to be beaten before the lion. Nay, I should think, my lords, that men of birth and quality will leave the practice when it begins to be vilified, and come so low as to barber-surgeons and butchers, and such base mechanical persons.
And for the greatness of this presence, in which I take much comfort, both as I consider it in itself, and much more in respect it is by his Majesty's direction, I will supply the meanness of the particular cause, by handling of the general point: to the end, that by the occasion of this present cause, both my purpose of prosecution against duels, and the opinion of the court, without which I am nothing, for the censure of them, may appear, and thereby offenders in that kind may read their own case, and know w hat they are to expect; which may serve for a warning until example may be made in some greater person: which I doubt the times will but too soon afford.
Therefore before I come to the particular, whereof your lordships are now to judge, I think it time best spent to speak somewhat,
First, Of the nature and greatness of this mischief.
Secondly, Of the causes nnd remedies.
Thirdly, Of the justice of the law of England,
which some stick not to think defective in this matter.
Fourthly, Of the capacity of this court, where certainly the remedy of this mischief is best to be found.
And fifthly, Touching mine own purpose and resolution, wherein I shall humbly crave your lordships' aid and assistance.
For the mischief itself, it may please your lordships to take into your consideration that when revenge is once extorted out of the magistrates' hands, contrary to God's ordinance, "Mihi vindicta, ego retribuam," and every man shall bear the sword, not to defend, but to assail; and private men begin once to presume to give law to themselves, and to right their own wrongs, no man can foresee the danger and inconveniences that may arise and multiply thereupon. It may cause sudden storms in court, to the disturbance of his Majesty, and unsafety of his person: it may grow from quarrels to bandying, and from bandying to trooping, and so to tumult and commotion; from particular persons to dissension of families and alliances j yea, to national quarrels, according to the infinite variety of accidents, which fall not under foresight: so that the state by this means shall be like to a distempered and imperfect body, continually subject to inflammations and convulsions.
Besides, certainly, both in divinity and in policy, offences of presumption are the greatest. Other offences yield and consent to the law that it is good, not daring to make defence, or to justify themselves j but this offence expressly gives the law an affront, as if there were two laws, one a kind of gown-law, and the other a law of reputation, as they term it j so that Paul's and Westminster, the pulpit and the courts of justice, must give place to the law, as the king speaketh in his proclamation, of ordinary tables, and such reverend assemblies: the year-books and statute-books must give place to some French and Italian pamphlets, which handle the doctrine of duels, which if they be in the right, transeamus ad ilia, let us receive them, and not keep the people in conflict and distraction between two laws.