Francis Bacon.

The works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) online

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should be comprised not only the exposition of the
terms of law, but of the words of all ancient records
and precedents.

For the Abridgments, 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 reper-
tories to learned lawyers, and not to make a lawyer
in haste : but since that cannot be, I wish there were
a good abridgment composed of the two that are
extant, and in better order. So much for the common

FOR the reforming and recompiling of the statute statute
law, it consisteth of four parts. Law -

1. The first, to discharge the books of those statutes,
where the case, by alteration of time, is vanished ; as
Lombards Jews, Gauls half-pence, etc. 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since expired and clearly repealed ; for if the repeal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 parlia-

2. The next is, to repeal all statutes which are sleep-
ing 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 j in others a simple repeal may suffice.

374 A Proposal for amending the Laics of England.

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

4. The last is, the reducing of concurrent statutes,
heaped <z>ne upon another, to one clear and uniform
law. Towards this there has 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 further
particularity therein ; only by this you may perceive
the work is already advanced : but because this part
of the work, which concerneth 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, primo 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.

[ 375 ]





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 childrens children, may be the better,
surely the care and piety of a father is not in him com-
plete. 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 sub-
jects good laws, may, if they will, in their own time,
join and graft this golden head upon their own necks
after their death. Nay, they may make Nabuchodo-
nozor'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

376 Of a Digest of Laws.

as a very wall about government. And if tyrants
sometimes made 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 Constantino
the Great gave the name well to those works, when
he used to call Trajan, that was a great builder, Pari-
-etaria, wall-flower, because his name was upon so
many walls : so if that be the matter, that a King
would turn wall-flower, or pellitory 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 walls, or banks, and 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 common-
wealth. 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 good ; 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 a in the memory of times, is rare

Of a Digest of Laws. 377

enough to shew it excellent : and yet not so rare, as to
make it suspected for impossible,, inconvenient, or un-
safe. Moses, that gave laws to the Hebrews, because
he was the scribe of God himself, is fitter to be named
for the honour's sake to other lawgivers, than to be
numbered or ranked amongst them. Minos, Lycurgus,
and Solon, are examples "Tor 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

Amongst the seven Kings of Rome four were law^
givers: 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 thevirtue of their first
" Kings ; which was a principal cause of vhe wonder-
" ful growth of that state in after-times."

The Decemvirs laws were laws upon laws, not the
original ; for they grafted laws of Graecia 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 supplemental 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 ; that
he was a lawgiver, that he took part with the nobility,
and that he turned private man, not upon tear, but
upon confidence.

Caesar long after desired to imitate him only in the

378 Of a Digest of Laws.

first, for otherwise he relied upon new men ; and for
resigning his power Seneca describeth him right ;
Ctcsar gladium cito condidid, nunquan postal, Caesar
soon sheathed his sword, but never put it off. And
himself took it upon him, saying in scorn ofSylla's
resignation ; Sijlla nescivit literas dictare non potuit,
" Sylla knew no letters, he could riot dictate." But
for the part of a lawgiver, Cicero giveth him the attri-
bute ; si fib eo qiucreretur, quid egisset in toga ; leges
sc respondisset midtas etprccdaras tulisse ; " If you had
asked Caesar 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 peaces
whereof one of the poets of his time saith,

Pace data terris, animum ad civilia vertit
Jura suuin ; legcsqae tulit justissimus auctor.

From that time there was such a race of wit and au-
thority, between the commentaries and decisions of the
lawyers, and the edicts of the emperors, as both law
and lawyers were out of breath. Whereupon Justi-
nian 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 observeth,
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
jaw, and so ex qfficio 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 wife, the ninth of that name,
King of Castile, compiled the digest of the laws of

Of a Digest of Laws. 3 79

Spain, intitled the Siete Partidas ; an excellent work,
which he finished in seven years. And as Tacitus
noteth well, that the capitol, though built in the be-
ginnings of Rome, yet was fit for the great monarchy
that came after ; so that building of laws sufficeth the
greatness of the empire of Spain, which since hath

Lewis XL had it in his mind, though he performed
it not, to have made one constant law of France, ex-
tracted 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 tem-
poral, to purge the canon law, and to make it agree-
able to the law of God, and the law of the land ; but
it took not effect : for the acts of that King were com-
monly 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
Caesar, so I may say to your Majesty, Nil vulgare te
dignum videri possit. Though indeed this well un-
derstood 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 accord-
ing 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 profes-
sion 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

380 Of a Digest of Laws.

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 hap-
pened to Callisthenes., that followed Alexander's court,
and was grown into some displeasure with him, be-
cause 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, be-
cause 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 stile, 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 - 3
1 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 leave posterity are the
more interested in the care of future times ; that as well
their progeny, as their people, may participate of
their merit.

Of a Digest 'of Lazes. 381

Your Majesty is a great master in justice and judi-
cature, and it were pity the fruit of that your virtue
should not be transmitted to the ages to come. Your
Majesty also reigneth in learned times, the more, no
doubt, in regard of your own perfection in learning,
and your patronage thereof. And it hath been the
mishap of works of this nature, that the less learned
time hath, sometimes, wrought upon the more learned,
which now will not be so. As for myself, the law was
my profession, to which I am a debtor : some little
helps I have of other arts, which may give form to
matter: and I have now, by God's merciful chastise-
ment, 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 interest 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.

[ 382 ]





Upon the Commission of Oyer and Terminer held for the


Lex vitiorum emendalrix> virtutum commendatrix est.

A OU 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 5 for
as of two evils it were better mens doings were
looked into over-strictly and severely, than that there
should be a notorious impunity of malefactors; as
was well and wisely said of ancient time, <e 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 be-
gins, and the law cannot pursue and chase offenders
to their deserved fall, except you first put them up

The Judicial Charge, etc. 383

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; watch-
ful, not asleep, or false asleep in winking at offenders,
and sharp-sighted to proceed with understanding and
discretion : for in a word, if you shall not present
unto the court all such offences, as shall appear unto
you either by evidence given in, or otherwise, mark
what I say, of your own knowledge, which have been
committed within the verge, which is as it were the
limits of your survey, but shall smother and conceal
any offence willingly, then the guiltiness of others
will cleave to your consciences before God ; and be-
sides, 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
more special regard to your presentments, than anv
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 houshold, 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 as a half-pace or carpet spread about

Judicial Charge, upon the

the King's chair of estate, which therefore ought to be
cleared and voided more than other places of the
kingdom ; for if offences shoule be shrouded under
the Ring's wings, whakhope 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. a we and reverence in mens hearts.
rart ^ nc * ^ s jurisdiction was m ancient time executed,
els. i3 rt R*. and since by statute ratified by the lord steward with
a.c. 333E. great ceremony, in the nature of a peculiar King's
bench for the verge ; for it was thought a kind of
eclipsing to the King's honour, that where the King
was, any justice should be sought but immediately
from his own officers. But in respect that office was
oft void, this commission hath succeeded, which change
I do not dislike ; for though it hath ]ess 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 pre-

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

I. The first, such as concern God and his church.
II. The second, such as concern the King and his

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.

nod and MS THE service of almighty God, upon whose blessing
Chuich. t h e peace, safety, and good estate of King and king-
dom doth depend, may be violated, and God disho-

Commission for the Verge. 385

noured in three manners, by profanation, by contempt,
and by division, or breach of unity.

First, if any man hath depraved or abused in word P<ofana-
or deed the blessed sacrament, or. disturbed the^E.'e.c. K

preacher or congregation in the time of divine ser- et l E1 - c - 2 -
r . . r i & i i -i r_ i M. c. s.

vice; or it any have maliciously stricken with weapon, 5 %. 6.c.4.

or drawn weapon in any church or church-yard ; or if ^J^
any fair or market have been kept in any church-yard, wm'ton.
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 service, they are Contempts,
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 dis-
sembler, ne 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 pre-
sent ; for these be like the roots of nettles, which sting
not themselves, but bear and maintain the stinging
leaves : so if any that keepeth a schoolmaster that
comes not to church, or is not allowed by the bishop,
for that infection may spread far : so such recusants as
have been convicted and conformed, and have not
received the sacrament once a year, for that is the
touch-stone of their true conversion : and of these
offences of recusancy take you special regard. Twelve
miles from court is no region for such subjects. In the
name of God, why should not twelve miles about the
King's chair be as free from papist-recusants, as twelve
miles from the city of Rome, the Pope's chair, is from
protestants ? There be hypocrites and atheists, and so


386 Judicial Charge upon the

I fear 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.

Breach of For matter of division and breach of unity, it is not
unit y without a mystery that Christ's coat had no seam, nor
no more should the church if it were possible. There-
fore if any minister refuse to use the book of Common-
prayer, or wilfully swerveth in divine service from
that book - 3 or if any person whatsoever do scandalize
that book, and speak openly and maliciously in dero-

Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 32 of 46)