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well such as are plain, as those that are dis- | were to build a church, he should need but false guised, whereof I will by-and-by speak: but, weights, and not seek them far, of the piles of first, I must require you to use diligence in pre- brass to make the bells, and the weights of lead senting especially those purloinings and embez- to make the battlements : and, herein you are to zlements, which are of plate, vessels, or whatso- make special inquiry, whether the clerk of the ever within the king's house. The king's house market within the verge, to whom properly it is an open place; it ought to be kept safe by law, appertains, hath done his duty. and not by lock, and therefore needeth the more For nuisances and grievances, I will for the severity.

present only single out one, that ye present the Now, for coloured and disguised robberies; I decays of highways and bridges; for where the will name two or three of them : the purveyor majesty of a king's house draws recourse and that takes without warrant, is no better than a access, it is both disgraceful to the king, and disthief, and it is felony. The servant that hath the easeful to the people, if the ways nearabouts be keeping of his majesty's goods, and going away not fair and good; wherein it is strange to see the with them, though he came to the possession of chargeable pavements and causeways, in the them lawfully, it is felony. Of these you shall avenues and entrances of towns abroad, beyond likewise inquire, principals and accessories. The the seas; whereas London, the second city at the voluntary escape of a felon is also felony. least of Europe, in glory, in greatness, and in .

wealth, cannot be discerned by the fairness of the For the last part, which is of offences concern ways, though a little, perhaps, by the broadness ing the people not capital, they are many: but I of them, from a village. will select only such as I think fittest to be re- For the last part, because I pass these things membered unto you, still dividing, to give you over briefly, I will make mention unto you of the better light. They are of four natures. three laws.

1. The first, is matter of force and outrage. 1. The one, concerning the king's pleasure. 2. The second, matter of fraud and deceit.

The second, concerning the people's food. 3. Public nuisances and grievances.

3. And the third, concerning wares and ma4. The fourth, breach and inobservance of nufactures. certain wholesome and politic laws for govern- You shall therefore inquire of the lawful taking ment.

partridges and pheasants or fowl, the destruction For the first, you shall inquire of riots and unlaw- of the eggs of the wild fowl, the killing of hares ful assemblies; of forcible entries, and detainers or deer, and the selling of venison or hares: for

with force; and properly of all assaults of strik- that which is for exercise, and sport, and courtesy, . ing, drawing weapon or other violence within the should not be turned to gluttony and sale victual. king's house, and the precincts thereof: for the You shall also inquire whether bakers, and king's house, from whence example of peace brewers keep their assize, and whether as well should flow unto the farthest parts of the king- they, as butchers, innholders, and victuallers, do dom, as the ointment of Aaron's head to the skirts sell that which is wholesome, and at reasonable of his garment, ought to be sacred and inviolate prices, and whether they do link and combine to from force and brawls, as well in respect of reve- raise prices. rence to the place, as in respect of danger of Lastly, you shall inquire whether the good greater tumult, and of ill example to the whole statute be observed, whereby a man may have kingdom; and, therefore, in that place, all should that he thinketh he hath, and not be abused or be full of peace, order, regard, forbearance, and mis-served in that he buys: I mean that statute silence.

that requireth that none use any manual occupaBesides open force, there is a kind of force that tion, but such as have been seven years apprentice cometh with an armed hand, but disguised, that to it; which law being generally transgressed, is no less hateful and hurtful; and that is abuse makes the people buy, in effect, chaff for corn; and oppression by authority. And, therefore, you for that which is mis-wrought, will mis-wear. shall inquire of all extortions, in officers and mi- There be many more things inquirable by you, nisters; as sheriffs, bailiffs of hundreds, escheat- throughout all the former parts, which it were ors coroners, constables, ordinaries, and others, overlong in particular to recite. You may be who, by colour of office, do poll the people. supplied either our of your own experience, or

For frauds and deceits, I do chieily 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 these which I have gone through, are the principal is an abomination, yet, the abuse is so common, points of your charge; which to present, you and so general, I mean of weights, and I speak have taken the name of God to witness: and in upon knowledge and late examination, that if one the name of God perform it.

AN EXPLANATION

WHAT MANNER OF PERSONS THOSE SHOULD BE, THAT ARE TO EXECUTE

THE POWER OR ORDINANCE

OF

THE KING'S PREROGATIVE.

1. That absolute prerogative, according to the est discretion, which the law, in which is the king's pleasure, revealed by his laws, may be king's known will, showeth unto him to be that exercised and executed by any subject, to whom justice, which he ought to administer; otherwise power may be given by the king, in any place of he might seem to esteem himself above the king's judgment or commission, which the king, by his law, who will not govern by it, or to have a law, hath ordained : in which the judge subordi- power derived from other than from the king, nate cannot wrong the people, the law laying which, in the kingdom will administer justice down a measure by which every judge should contrary unto the justice of the land: neither can govern and execute; against which law, if any such a judge or commissioner, under the name of judge proceed, he is, by the law, questionable, the king's authority, shroud his own high action, and punishable for his transgression.

seeing the conscience and discretion of every man In this nature are all the judges and commis- is particular and private to himself, so as the dissioners of the land, no otherwise than in their cretion of the judge cannot be properly, or possicourts, in which the king, in person, is supposed bly, the discretion, or the conscience of the king; to sit, who cannot make that trespass, felony, or and, if not his discretion, neither the judgment treason, which the law hath not made so to be; that is ruled by another man's only. neither can punish the guilty by other punish- Therefore it may seem they rather desire to be ment than the laws have appointed.

kings, than to rule the people under the king, This prerogative or power, as it is over all the which will not administer justice by law, but by subjects, so, being known by the subjects, they their own will. are without excuse if they offend, and suffer no 3. This administration in a subject is derogawrong, if they be justly punished; and, by this tive to the king's prerogative: for he administerprerogative, the king governeth all sorts of people eth justice out of a private direction, being not according unto known will.

capable of a general direction how to use the 2. The absolute prerogative, which is in kings king's subjects at pleasure, in causes of particular according to their private will and judgment, respect; which, if no other than the king himself cannot be executed by any subject; neither is it can do, how can it be so that any man should depossible to give such power by commission; or sire that which is unfit and impossible, but that it fit to subject the people to the same; for the king, must proceed out of some exorbitant affection ? in that he is the substitute of God immediately, the rather, seeing such places be full of trouble, the father of his people, and head of the common- and altogether unnecessary, no man will seek to wealth, hath, by participation with God, and thrust himself into them but for hopes of gain. with his subjects, a discretion, judgment, and 'Then is not any prerogative oppugned, but mainfeeling love towards those over whom he reign- tained, though it be desired, that every subordieth, only proper to himself, or to his place and nate magistrate may not be made supreme, person; who, seeing he cannot in any others whereby he may seize upon the hearts of the infuse his wisdom, power, or gifts, which God, people, take from the king the respect due unto him in respect of his place and charge, hath enabled only, or judge the people otherwise than the king him withal, can neither subordinate any other doth himself. 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 rule by private direction, for which there is no , upon the king; the laws being neglected, which, law, how can he be questioned by a law, if in his with their equity, in all other causes and judgprivate censure he offends?

ments, saving this, interpose themselves and yield 5. Therefore, it seemeth that, in giving such remedy. authority, the king ordaineth not subordinate ma- 6. And, to conclude, custom cannot confirm that gistrates, but absolute kings: and what doth the which is any ways unreasonable of itself. king leave to himself, who giveth so much to Wisdom will not allow that which is many others, as he hath himself? Neither is there a ways dangerous, and no ways profitable. greater bond to tie the subject to his prince in Justice will not approve that government, where particular, than when he shall have recourse unto it cannot be but wrong must be committed. him, in his person, or in his power, for relief of Neither can there be any rule by which to try the wrongs which from private men be offered ; it, nor means of reformation of it. or for reformation of the oppressions which any 7. Therefore, whosoever desireth government subordinate magistrate shall impose upon the must seek such as he is capable of, not such as people. There can be no offence in the judge, seemeth to himself most easy to execute; for it is who hath power to execute according to his dis- apparent, that it is easy to him that knoweth not cretion, when the discretion of any judge shall be law nor justice, to rule as he listeth, his will thought fit to be limited, and therefore there can never wanting a power to itself: but it is safe and be therein no reformation; whereby the king in blameless, both for the judge and people, and this useth no prerogative to gain his subjects' honour to the king, that judges be appointed who right: then the subject is bound to suffer helpless know the law, and that they be limited to govern wrong; and the discontent of the people is cast ! 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,

in the meaner, and the dog to be beaten before the I thought it fit for my place, and for these lion. Nay, I should think, my lords, that men of times, to bring to hearing before your lordships birth and quality will leave the practice when it some cause touching private duels, to see if this begins to be vilified, and come so low as to barcourt can do any good to tame and reclaim that ber-surgeons and butchers, and such base mechaevil, which seems unbridled. And I could have nical persons. wished that I had met with some greater persons, And, for the greatness of this presence, in as a subject for your censure, both because it had which I take much comfort, both as I consider it been more worthy of this presence, and also the in itself, and much more in respect it is by his better to have showed the resolution myself hath majesty's direction, I will supply the meanness to proceed without respect of persons in this bu- of the particular cause, by handling of the general siness; but finding this cause on foot in my pre- point: to the end that, by the occasion of this decessor's time, and published and ready for present cause, both my purpose of prosecution. hearing, I thought to lose no time in a mischief against duels, and the opinion of the court, that groweth every day: and, besides, it passes without which I am nothing, for the censure of not amiss sometimes in government, that the them, may appear, and thereby offenders in that greater sort be adınonished by an example made 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 friends consisteth, shall be cast away and deperson: which, I doubt, the times will but too stroyed in such a vain manner; but much more soon afford.

it is to be deplored, when so much noble and Therefore, before I come to the particular, genteel blood should be spilt upon such follies, whereof your lordships are now to judge, I think as, if it were adventured in the field in service of it time best spent to speak somewhat:

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.

So as your lordships see what a desperate evil Secondly, Of the causes and remedies. this is; it troubleth peace, it disfurnisheth war, Thirdly, of the justice of the law of England, it bringeth calamity upon private men, peril upon which some stick not to think defective in this the state, and contempt upon the law. matter.

Touching the causes of it; the first motive, no Fourthly, of the capacity of this court, where doubt, is a false and erroneous imagination of certainly the remedy of this mischief is best to honour and credit: and, therefore, the king, in his be found.

last proclamation, doth most aptly and excellently And, fifthly, Touching mine own purpose and call them bewitching duels. For, if one judge resolution, wherein I shall humbly crave your of it truly, it is no better than a sorcery that enlordships' aid and assistance.

chanteth the spirits of young men, that bear great For the mischief itself, it may please your minds with a false show, “species falsa;" and a lordships to take into your consideration that kind of satanical illusion and apparition of honour when revenge is once extorted out of the magis- against religion, against law, against moral trates' hands, contrary to God's ordinance, “ Mihi virtue, and against the precedents and examples vindicta, ego retribuam,” and every man shall of the best times and valiantest nations; as I bear the sword, not to defend, but to assail; and shall tell you by-and-by, when I shall show you private men begin once to presume to give law to the law of England is not alone in this point. themselves, and to right their own wrongs, no But then the seed of this mischief being such, man can foresee the danger and inconveniences it is nourished by vain discourses, and green and that may arise and multiply thereupon. It may unripe conceits, which, nevertheless, have so precause sudden storms in court, to the disturbance vailed, as, though a man were staid and soberof his majesty, and unsafety of his person: it minded, and a right believer, touching the vanity may grow from quarrels to bandying, and from and unlawfulness of these duels; yet the stream bandying to trooping, and so to tumult and com- of vulgar opinion is such, as it imposeth a necesmotion; from particular persons to dissension of sity upon men of value to conform themselves, or families and alliances; yea, to national quarrels, else there is no living or looking upon men's according to the infinite variety of accidents, faces: so that we have not to do, in this case, so which fall not under foresight: so that the state much with particular persons, as with unsound by this means shall be like to a distempered and and depraved opinions, like the dominations and imperfect body, continually subject to inflamma- spirits of the air, which the Scripture speaketh of. tions and convulsions.

Hereunto may be added, that men have almost Besides, certainly, both in divinity and in lost the true notion and understanding of fortitude policy, offences of presumption are the greatest. and valour. For fortitude distinguisheth of the Other offences yield and consent to the law that grounds of quarrels, whether they be just; and it is good, not daring to make defence, or to not only so, but whether they be worthy; and justify themselves; but this offence expressly setteth a better price upon men's lives, than to gives the law an affront, as if there were two bestow them idly: nay, it is weakness and dislaws, one a kind of gown-law, and the other a esteem of a man's self, to put a man's life upon law of reputation, as they term it; so that Paul's such liedger performances: a man's life is not to and Westminster, the pulpit and the courts of be trifled away; it is to be offered up and sacrijustice, must give place to the law, as the king ficed to honourable services, public merits, good speaketh in his proclamation, of ordinary tables, causes, and noble adventures. It is in expense and such reverend assemblies: the year-books, of blood, as it is in expense of money; it is no and statute-books, must give place to some French liberality to make a profusion of money upon and Italian pamphlets, which handle the doctrine every vain occasion, nor no more is it fortitude to of duels, which, if they be in the right, “ tran- make effusion of blood, except the cause be of seamus ad illa,” let us receive them, and not keep worth. And thus much for the causes of this the people in conflict and distraction between evil. two laws.

For the remedies, I hope some great and noble Again, my lords, it is a miserable effect, when person will put his hand to this plough, and I wish young men, full of towardness and hope, such as that my labours of this day may be but forerunners the poets call “ auroræ filii,” sons of the morning, to the work of a higher and better hand. But

yet to deliver my opinion as may be proper for that darkness, that he may not behold his sovethis time and place, there be four things that reign's face. I have thought on, as the most effectual for the Lastly, and that which more properly concerneth repressing of this depraved custom of particular this court: we see, my lords, the root of this combats.

offence is stu orn, for it despiseth death, which The first is, that there do appear and be declared is the utmost of punishments; and it were a just a constant and settled resolution in the state to but a miserable severity, to execute the law withabolish it. For this is a thing, my lords, must go out all remission or mercy, where the case proveth down at once, or not at all; for then every parti- capital. And yet the late severity in France was cular man will think himself acquitted in his repu- more, where, by a kind of martial law, established tation, when he sees that the state takes it to heart, by ordinance of the king and parliament, the party as an insult against the king's power and authority, that had slain another was presently had to the and thereupon hath absolutely resolved to master gibbet, insomuch as gentlemen of great quality it; like unto that which was set down in express were hanged, their wounds bleeding, lest a natuwords in the edict of Charles IX. of France, ral death should prevent the example of justice. touching duels, that the king himself took upon But, my lords, the course which we shall take is him the honour of all that took themselves grieved of far greater lenity, and yet of no less efficacy; or interested for not having performed the combat. which is to punish, in this court, all the middle So must the state do in this business: and in my acts and proceedings which tend to the duel, conscience there is none that is but of a reasonable, which I will enumerate to you anon, and so to sober disposition, be he never so valiant, except hew and vex the root in the branches, which, no it be some furious person, that is like a firework, doubt, in the end will kill the root, and yet but will be glad of it, when he shall see the law prevent the extremity of law. and rule of state disinterest him of a vain and Now, for the law of England, I see it excepted unnecessary hazard.

to, though ignorantly, in two points ; Secondly, care must be taken that this evil be The one, that it should make no difference beno more cockered, nor the humour of it fed; tween an insidious and foul murder, and the wherein I humbly pray your lordships that I may killing of a man upon fair terms, as they now speak my mind freely, and yet be understood call it. aright. The proceedings of the great and noble The other, That the law hath not provided, commissioners martial I honour and reverence sufficient punishment, and reparations, for conmuch, and of them I speak not in any sort; but I tumely of words, as the lie, and the like. say the compounding of quarrels, which is other- But these are no better than childish novelties wise in use by private noblemen and gentlemen, against the divine law, and against all laws in it is so punctual, and hath such reference and effect, and against the examples of all the bravest respect unto the received conceits, what's before and most virtuous nations of the world. hand, and what's behind hand, and I cannot tell For, first, for the law of God, there is never to what, as without all question it doth, in a fashion, be found any difference made in homicide, but becountenance and authorize this practice of duels, tween homicide voluntary, and involuntary, which as if it had in it somewhat of right.

we term misadventure. And for the case of Thirdly, I must acknowledge that I learned out misadventure itself, there were cities of refuge ; of the king's last proclamation, the most prudent so that the offender was put to his flight, and that and best applied remedy for this offence, if it flight was subject to accident, whether the reshall please his majesty to use it, that the wit of venger of blood should overtake him before he had man can devise. This offence, my lords, is gotten sanctuary or no. It is true that our law grounded upon a false conceit of honour, and, hath made a more subtle distinction between the therefore, it would be punished in the same kind, will inflamed and the will advised; between man“in eo quis rectissime plectitur, in quo peccat.” slaughter in heat, and murder upon prepensed The fountain of honour is the king and his aspect, malice, or cold blood, as the soldiers call it; an and the access to his person continueth honour indulgence not unfit for a choleric and warlike in life, and to be banished from his presence is nation: for it is true, "ira furor brevis;" a man one of the greatest eclipses of honour that can be; in fury is not himself. This privilege of passion if his majesty shall be pleased that when this the ancient Roman law restrained, but to a case : court shall censure any of these offences in persons that was, if the husband took the adulterer in the of eminent quality, to add this out of his own manner; to that rage and provocation only it gave power and discipline, that these persons shall be way, that a homicide was justifiable. But for a banished and excluded from his court for certain difference to be made in case of killing and years, and the courts of his queen and prince, I destroying man, upon a forethought purpose, bethink there is no man that hath any good blood in tween foul and fair, and as it were between single him will commit an act that shall cast him into murder and vied murder, it is but a monstrous

VOL. II.-38

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