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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, 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 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 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.

Nuisance.

For the last part, because I pass Breach of these things over briefly, I will make mention unto you of three laws.

statutes.

1. The one, concerning the king's pleasure. 2. The second, concerning the people's food. 3. And the third, concerning wares and manufactures.

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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.

Manufactures.

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: 5 Eliz. C. 4. 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,

AT THE

ARRAIGNMENT OF THE LORD SANQUHAR,

IN THE KING'S BENCH AT WESTMINSTER.

THE ARGUMENT.

The Lord Sanquhar, a Scotch nobleman, having, in private revenge, suborned Robert Carlile to murder John Turner, master of fence, thought, by his greatness, to have borne 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 I 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 magnanimo 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,

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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 though 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.

[Note. 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.]

THE CHARGE

OF SIR FRANCIS BACON, KNIGHT.

THE KING'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 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.

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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 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 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 auroræ filii, sons of morning, in whom the expectation and comfort of their 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 of a day, and to change the fortune of a kingdom. 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 sober-minded, 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 perform ances 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 it is 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 I wish that my labours of this day may be but forerunners to the work of a higher and better hand. But yet to deliver my opinion as may be proper for this time and place, there be four things that I have thought

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on, as the most effectual for the repressing of this depraved custom of particular combats.

The first is, That there do appear and be declared a constant and settled resolution in the state to abolish it. For this is a thing, my lords, must go down at once, or not at all; for then every particular man will think himself acquitted in his reputation, when he sees that the state takes it to heart, as an insult against the king's power and authority, and thereupon hath absolutely resolved to master it; like unto that which was set down in express words in the edict of Charles IX. of France touching duels, that the king himself took upon him the honour of all that took themselves grieved or interested for not having performed the combat. So must the state do in this business: and in my conscience there is none that is but of a reasonable sober disposition, be he never so valiant, except it be some furious person that is like a firework, but will be glad of it, when he shall see the law and rule of state disinterest him of a vain and unnecessary hazard.

Secondly, Care must be taken that this evil be no more cockered, nor the humour of it fed; wherein I humbly pray your lordships that I may speak my mind freely, and yet be understood aright. The proceedings of the great and noble commissioners martial I honour and reverence much, and of them I speak not in any sort; but I say the compounding of quarrels, which is otherwise in use by private noblemen and gentlemen, it is so punctual, and hath such reference and respect unto the received conceits, what's before-hand, and what's behind-hand, and I cannot tell what, as without all question it doth, in a fashion, countenance and authorize this practice of duels, as if it had in it somewhat of right.

Thirdly, I must acknowledge that I learned out of the king's last proclamation the most prudent and best applied remedy for this offence, if it shall please his Majesty to use it, that the wit of man can devise. This offence, my lords, is grounded upon a false conceit of honour, and therefore it would be punished in the same kind, “in eo quis rectissime plectitur, in quo peccat." The fountain of honour is the king and his aspect, and the access to his person continueth honour in life, and to be banished from his presence is one of the greatest eclipses of honour that can be; if his Majesty shall be pleased that when this court shall censure any of these offences in persons of eminent quality, to add this out of his own power and discipline, that these persons shall be banished and excluded from his court for certain years, and the courts of his queen and prince, I think there is no man that hath any good blood in him will commit an act that shall cast him into that darkness, that he may not behold his sovereign's face.

Lastly, and that which more properly concerneth this court: We see, my lords, the root of this offence is stubborn; for it despiseth death, which is the utmost of punishments; and it were a just but a miserable severity to execute the law without all remission or mercy, where the case proveth capital. And yet the late severity in France was more, where, by a kind of martial law, established by ordinance of the king and parliament, the party that had slain

another was presently had to the gibbet, insomuch as gentlemen of great quality were hanged, their wounds bleeding, lest a natural death should prevent the example of justice. But, my lords, the course which we shall take is of far greater lenity, and yet of no less efficacy; which is to punish, in this court, all the middle acts and proceedings which tend to the duel, which I will enumerate to you anon, and so to hew and vex the root in the branches, which, no doubt, in the end will kill the root, and yet prevent the extremity of law.

there had been any virtue in it. Nay, as he saith, "Fas est et ab hoste doceri." It is memorable, that is reported by a counsellor ambassador of the emperor's, touching the censure of the Turks of these duels: there was a combat of this kind performed by two persons of quality of the Turks, wherein one of them was slain, the other party was convented before the counsel of bashaws; the manner of the reprehension was in these words: "How durst you undertake to fight one with the other? Are there not christians enough to kill? Did you not know

Now for the law of England, I see it excepted that whether of you shall be slain, the loss would be to, though ignorantly, in two points:

The one, That it should make no difference between an insidious and foul murder, and the killing of a man upon fair terms, as they now call it.

The other, That the law hath not provided sufficient punishment, and reparations, for contumely of words, as the lie, and the like.

But these are no better than childish novelties against the divine law, and against all laws in effect, and against the examples of all the bravest and most virtuous nations of the world.

For first, for the law of God, there is never to be found any difference made in homicide, but between homicide voluntary and involuntary, which we term misadventure. And for the case of misadventure itself, there were cities of refuge; so that the of fender was put to his flight, and that flight was subject to accident, whether the revenger of blood should overtake him before he had gotten sanctuary or no. It is true that our law hath made a more subtle distinction between the will inflamed and the will advised, between manslaughter in heat and murder upon prepensed malice or cold blood, as the soldiers call it, an indulgence not unfit for a choleric and warlike nation; for it is true, "ira furor brevis:" a man in fury is not himself. This privilege of passion the ancient Roman law restrained, but to a case that was, if the husband took the adulterer in the manner; to that rage and provocation only it gave way, that a homicide was justifiable. But for a difference to be made in case of killing and destroying man, upon a fore-thought purpose, between foul and fair, and as it were between single murder and vied murder, it is but a monstrous child of this latter age, and there is no shadow of it in any law divine or human. Only it is true, I find in the Scripture that Cain enticed his brother into the field and slew him treacherously; but Lamech vaunted of his manhood that he would kill a young man, and if it were to his hurt: so as I see no dif ference between an insidious murder and a braving or presumptuous murder, but the difference between Cain and Lamech.

As for examples in civil states, all memory doth consent that Græcia and Rome were the most valiant and generous nations of the world; and, that which is more to be noted, they were free estates, and not under a monarchy; whereby a man would think it a great deal the more reason that particular persons should have righted themselves; and yet they had not this practice of duels, nor any thing that bare show thereof and sure they would have had it, if

the Great Seignior's?" So as we may see that the most warlike nations, whether generous or barbarous, have ever despised this wherein now men glory.

It is true, my lords, that I find combats of two natures authorized, how justly I will not dispute as to the latter of them.

The one, when upon the approaches of armies in the face one of the other, particular persons have made challenges for trial of valours in the field upon the public quarrel.

This the Romans called Pugna per provocationem. And this was never, but either between the generals themselves, who are absolute, or between particulars by licence of the generals; never upon private authority. So you see David asked leave when he fought with Goliah; and Joab, when the armies were met, gave leave, and said, “Let the young men play before us." And of this kind was that famous example in the wars of Naples, between twelve Spaniards and twelve Italians, where the Italians bare away the victory; besides other infinite like examples worthy and laudable, sometimes by singles, sometimes by numbers.

The second combat is a judicial trial of right, where the right is obscure, introduced by the Goths and the northern nations, but more anciently entertained in Spain; and this yet remains in some cases as a divine lot of battle, though controverted by divines, touching the lawfulness of it: so that a wise writer saith, "Taliter pugnantes videntur tentare Deum, quia hoc volunt ut Deus ostendat et faciat miraculum, ut justam causam habens victor | efficiatur, quod sæpe contra accidit." But howsoever it be, this kind of fight taketh its warrant from law. Nay, the French themselves, whence this folly seemeth chiefly to have flown, never had it but only in practice and toleration, and never as authorized by law; and yet now of late they have been fain to purge their folly with extreme rigour, in so much as many gentlemen left between death and life in the duels, as I spake before, were hastened to hanging with their wounds bleeding. For the state found it had been neglected so long, as nothing could be thought cruelty which tended to the putting of it down.

As for the second defect pretended in our law, that it hath provided no remedy for lies and fillips, it may receive like answer. It would have been thought a madness amongst the ancient lawgivers, to have set a punishment upon the lie given, which in effect is but a word of denial, a negative of another's saying. Any lawgiver, if he had been asked

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