counting 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 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, to 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 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 that 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 division; that is, those offences which 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 of fences 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 of fenders; 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 unto 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. 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 second kind, which concerns the honour and chasteness of persons and families; you are to inquire of the ravishment of women, of the taking of women out of the possession of their parents or 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, vessels, 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. Now, for coloured and disguised robberies; I will name two or three of them: the purveyor that takes without warrant, is no better than a thief, and it is felony. The servant that hath the keeping of his majesty's goods, 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 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 govern ment. 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 sheriffs, bailiffs of hundreds, escheators coroners, constables, ordinaries, and others, who, by colour of office, do poll the people. 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 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 nearabouts 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 the 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. You shall therefore inquire of the lawful taking partridges and pheasants 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 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 our of your own experience, or For frauds and deceits, I do chiefly commend out of such bills and informations as shall be to your care the frauds and deceits in that which brought unto you, or upon any question that you is the chief means of all just contract and permu- | shall demand of the court, which will be ready to tation, which is, weights and measures; wherein, give you any farther direction, as far as is fit: but although 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 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. AN EXPLANATION WHAT MANNER OF PERSONS THOSE SHOULD BE, THAT ARE TO EXECUTE OF THE KING'S PREROGATIVE. 1. THAT absolute prerogative, according to the king's pleasure, revealed by his laws, may be exercised and executed by any subject, to whom power may be given by the king, in any place of judgment or commission, which the king, by his law, hath ordained in which the judge subordinate cannot wrong the people, the law laying down a measure by which every judge should govern and execute; against which law, if any judge proceed, he is, by the law, questionable, and punishable for his transgression. In this nature are all the judges and commissioners of the land, no otherwise than in their courts, in which the king, in person, is supposed to sit, who cannot make that trespass, felony, or treason, which the law hath not made so to be; neither can punish the guilty by other punishment than the laws have appointed. This prerogative or power, as it is over all the subjects, so, being known by the subjects, they are without excuse if they offend, and suffer no wrong, if they be justly punished; and, by this prerogative, the king governeth all sorts of people according unto known will. est discretion, which the law, in which is the king's known will, showeth unto him to be that justice, which he ought to administer; otherwise he might seem to esteem himself above the king's law, who will not govern by it, or to have a power derived from other than from the king, which, in the kingdom will administer justice contrary unto the justice of the land: neither can such a judge or commissioner, under the name of the king's authority, shroud his own high action, seeing the conscience and discretion of every man is particular and private to himself, so as the discretion of the judge cannot be properly, or possibly, the discretion, or the conscience of the king; and, if not his discretion, neither the judgment that is ruled by another man's only. Therefore it may seem they rather desire to be kings, than to rule the people under the king, which will not administer justice by law, but by their own will. 3. This administration in a subject is derogative to the king's prerogative: for he administereth justice out of a private direction, being not capable of a general direction how to use the king's subjects at pleasure, in causes of particular respect; which, if no other than the king himself can do, how can it be so that any man should desire that which is unfit and impossible, but that it must proceed out of some exorbitant affection? the rather, seeing such places be full of trouble, and altogether unnecessary, no man will seek to thrust himself into them but for hopes of gain. Then is not any prerogative oppugned, but main 2. The absolute prerogative, which is in kings according to their private will and judgment, cannot be executed by any subject; neither is it possible to give such power by commission; or fit to subject the people to the same; for the king, in that he is the substitute of God immediately, the father of his people, and head of the commonwealth, hath, by participation with God, and with his subjects, a discretion, judgment, and feeling love towards those over whom he reign-tained, though it be desired, that every subordieth, only proper to himself, or to his place and person; who, seeing he cannot in any others infuse his wisdom, power, or gifts, which God, in respect of his place and charge, hath enabled him withal, can neither subordinate any other judge to govern by that knowledge, which the 4. And although the prince be not bound to king can no otherwise, than by his known will, render any account to the law, which in person participate unto him: and if any such subordinate he administereth himself, yet every subordinate judge shall obtain commission, according to the judge must render an account to the king, by his discretion of such judge, to govern the people, laws, how he hath administered justice in his that judge is bound to think that to be his sound-place where he is set. But if he hath power to nate magistrate may not be made supreme, whereby he may seize upon the hearts of the people, take from the king the respect due unto him only, or judge the people otherwise than the king doth himself. rule by private direction, for which there is no law, how can he be questioned by a law, if in his private censure he offends? 5. Therefore, it seemeth that, in giving such authority, the king ordaineth not subordinate magistrates, but absolute kings: and what doth the king leave to himself, who giveth so much to others, as he hath himself? Neither is there a greater bond to tie the subject to his prince in particular, than when he shall have recourse unto him, in his person, or in his power, for relief of the wrongs which from private men be offered; or for reformation of the oppressions which any subordinate magistrate shall impose upon the people. There can be no offence in the judge, who hath power to execute according to his discretion, when the discretion of any judge shall be thought fit to be limited, and therefore there can be therein no reformation; whereby the king in this useth no prerogative to gain his subjects' right: then the subject is bound to suffer helpless wrong; and the discontent of the people is cast upon the king; the laws being neglected, which, with their equity, in all other causes and judgments, saving this, interpose themselves and yield remedy. 6. And, to conclude, custom cannot confirm that which is any ways unreasonable of itself. Wisdom will not allow that which is many ways dangerous, and no ways profitable. Justice will not approve that government, where it cannot be but wrong must be committed. Neither can there be any rule by which to try it, nor means of reformation of it. 7. Therefore, whosoever desireth government must seek such as he is capable of, not such as seemeth to himself most easy to execute; for it is apparent, that it is easy to him that knoweth not law nor justice, to rule as he listeth, his will never wanting a power to itself: but it is safe and blameless, both for the judge and people, and honour to the king, that judges be appointed who know the law, and that they be limited to govern according to the law. THE CHARGE OF SIR FRANCIS BACON, KNIGHT, HIS MAJESTY'S ATTORNEY-GENERAL, TOUCHING DUELS: UPON AN INFORMATION IN THE STAR CHAMBER AGAINST PRIEST AND WRIGHT; WITH THE DECREE OF THE STAR CHAMBER IN THE SAME CAUSE. MY LORDS, I thought 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 adinonished 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 what they are to expect; which may serve for a warning in whom the expectation and comfort of their 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: friends consisteth, shall be cast away and destroyed in such a vain manner; but much more it is to be deplored, when so much noble and genteel blood should be spilt upon such follies, as, if it were adventured in the field in service of the king and realm, were able to make the fortune First, Of the nature and greatness of this of a day, and to change the fortune of a kingdom. mischief. Secondly, Of the causes and 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; 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; 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; 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 illa,” let us receive them, and not keep the people in conflict and distraction between two laws. Again, my lords, it is a miserable effect, when young men, full of towardness and hope, such as the poets call" aurora filii," sons of the morning, So as your lordships see what a desperate evil this is; it troubleth peace, it disfurnisheth war, it bringeth calamity upon private men, peril upon the state, and contempt upon the law. Touching the causes of it; the first motive, no doubt, is a false and erroneous imagination of honour and credit: and, therefore, the king, in his last proclamation, doth most aptly and excellently call them bewitching duels. For, if one judge of it truly, it is no better than a sorcery that enchanteth the spirits of young men, that bear great minds with a false show, "species falsa ;" and a kind of satanical illusion and apparition of honour against religion, against law, against moral virtue, and against the precedents and examples of the best times and valiantest nations; as I shall tell you by-and-by, when I shall show you the law of England is not alone in this point. But then the seed of this mischief being such, it is nourished by vain discourses, and green and unripe conceits, which, nevertheless, have so prevailed, as, though a man were staid and soberminded, and a right believer, touching the vanity and unlawfulness of these duels; yet the stream of vulgar opinion is such, as it imposeth a necessity upon men of value to conform themselves, or else there is no living or looking upon men's faces: so that we have not to do, in this case, so much with particular persons, as with unsound and depraved opinions, like the dominations and spirits of the air, which the Scripture speaketh of. Hereunto may be added, that men have almost lost the true notion and understanding of fortitude and valour. For fortitude distinguisheth of the grounds of quarrels, whether they be just; and not only so, but whether they be worthy; and setteth a better price upon men's lives, than to bestow them idly: nay, it is weakness and disesteem of a man's self, to put a man's life upon such liedger performances: a man's life is not to be trifled away; it is to be offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. It is in expense of blood, as it is in expense of money; it is no liberality to make a profusion of money upon every vain occasion, nor no more is it fortitude to make effusion of blood, except the cause be of worth. And thus much for the causes of this evil. For the remedies, I hope some great and noble person will put his hand to this plough, and 1 wish that my labours of this day may be but forerunners to the work of a higher and better hand. But |