writ of "Ne exeat regnum" against him; and the other to the lords in general, that he might be assisted and countenanced in this service. justices that are trusted with the preservation of the peace, are not able to master and repress those offences, which were by the court at large After which opening and declaration of the ge- set forth, to be not only against the law of God, neral cause, his majesty's said attorney did pro- to whom, and his substitutes, all revenge belongceed to set forth the proofs of this particular chal-eth, as part of his prerogative, but also against lenge and offence now in hand, and brought to the oath and duty of every subject unto his mathe judgment and censure of this honourable jesty, for that the subject doth swear unto him by court; whereupon it appeared to this honourable the ancient law allegiance of life and member; court, by the confession of the said defendant, Priest himself, that he having received some wrong and disgrace at the hands of one Hutchest, did thereupon, in revenge thereof, write a letter to the said Hutchest, containing a challenge to fight with him at single rapier, which letter the said Priest did deliver to the said defendant, Wright, together with a stick containing the length of the rapier, wherewith the said Priest meant to perform the fight. Whereupon the said Wright did deliver the said letter to the said Hutchest, and did read the same unto him; and after the reading thereof, did also deliver to the said Hutchest the said stick, saying, that the same was the length of the weapon mentioned in the said letter. But the said Hutchest, dutifully respecting the preservation of his majesty's peace, did refuse the said challenge, whereby no farther mischief did ensue thereupon. whereby it is plain inferred, that the subject hath no disposing power over himself of life and member to be spent or ventured according to his own passions and fancies, insomuch as the very practice of chivalry in justs and tournays, which are but images of martial actions, appear by ancient precedents not to be lawful without the king's license obtained. The court also noted, that these private duels or combats were of another nature from the combats which have been allowed by the law, as well of this land as of other nations, for the trial of rights or appeals. For that those combats receive direction and authority from the law; whereas these, contrariwise, spring only from the unbridled humours of private men. And as for the pretence of honour, the court much misliking the confusion of degrees which is grown of late, every man assuming unto himself the term and attribute of honour, did This honourable court, and all the honourable utterly reject and condemn the opinion that the presence this day sitting, upon grave and mature private duel, in any person whatsoever, had any deliberation, pondering the quality of these of grounds of honour; as well because nothing can fences, they generally approved the speech and be honourable that is not lawful, and that it is no observations of his majesty's said attorney-ge- magnanimity or greatness of mind, but a swellneral, and highly commended his great care and ing and tumour of the mind, where there faileth a good service in bringing a cause of this nature right and sound judgment; as also for that it was to public punishment and example, and in pro- rather justly to be esteemed a weakness, and a fessing a constant purpose to go on in the like conscience of small value in a man's self to be decourse with others: letting him know, that he jected so with a word or trifling disgrace, as to might expect from the court all concurrence and think there is no recure of it, but by the hazard of assistance in so good a work. And thereupon life: whereas true honour, in persons that know the court did by their several opinions and sen- their own worth, is not of any such brittle subtences declare how much it imported the peace stance, but of a more strong composition. And, and prosperous estate of his majesty and his king- finally, the court, showing a firm and settled resodom, to nip this practice and offence of duels in the lution to proceed with all severity against these head, which now did overspread and grow uni- duels, and gave warning to all young noblemen versal, even among mean persons, and was not gentlemen, that they should not expect the like only entertained in practice and custom, but was connivance or toleration as formerly have been, framed into a kind of art and precepts: so that, but that justice should have a full passage, withaccording to the saying of the Scripture, "mis-out protection or interruption. Adding, that after chief is imagined like a law." And the court with a strait inhibition, whosoever should attempt a one consent did declare their opinions: that, by the ancient law of the land, all inceptions, preparations, and combinations to execute unlawful acts, though they never be performed, as they be not to be punished capitally, except it be in the case of treason, and some other particular cases of statute law; so yet they are punishable as misdemeanors and contempts: and that this court was proper for offences of such a nature; especially in this case, where the bravery and insolency of the times are such as the ordinary magistrates and challenge or combat, in case where the other party was restrained to answer him, as now all good subjects are, did by their own principals receive the dishonour and disgrace upon himself. And for the present cause, the court hath ordered, adjudged, and decreed, that the said William Priest and Richard Wright be committed to the prison of the fleet, and the said Priest to pay five hundred pounds, and the said Wright five hundred marks, for their several fines to his majesty's use. And to the end, that some more public example may be made hereof amongst his majesty's people, | so have ordered and decreed, that the same be not the court hath further ordered and decreed, that only read and published at the next assizes for the said Priest and Wright shall, at the next Surry, at such time as the said Priest and Wright assizes, to be holden in the county of Surry, are to acknowledge their offences as aforesaid; but publicly, in face of the court, the judges sitting, that the same be likewise published and made acknowledge their high contempt and offence known in all shires of this kingdom. And to against God, his majesty, and his laws, and show that end the justices of assizes are required by themselves penitent for the same. this honourable court to cause this decree to be Moreover, the wisdom of this high and honour- solemnly read and published in all the places and able court thought it meet and necessary that all sittings of their several circuits, and in the greatsorts of his majesty's subjects should understand est assembly; to the end, that all his majesty's and take notice of that which hath been said and subjects may take knowledge and understand the handled this day touching this matter, as well by opinion of this honourable court in this case, and his highness's attorney-general, as by the lords in what measure his majesty and this honourjudges, touching the law in such cases. And, able court purposeth to punish such as shall fall therefore, the court hath enjoined Mr. Attorney to into the like contempt and offences hereafter. have special care to the penning of this decree, for Lastly, this honourable court much approving that, the setting forth in the same summarily the matters which the right honourable Sir Edward Coke, and reasons which have been opened and delivered knight, Lord Chief Justice of England, did now by the court touching the same; and, nevertheless, deliver touching the law in this case of duels, also at some time convenient to publish the par- hath enjoined his lordship to report the same ticulars of his speech and declaration, as very in print, as he hath formerly done divers other meet and worthy to be remembered and made cases, that such as understand not the law in known unto the world, as these times are. And that behalf, and all others, may better direct this decree, being in such sort carefully drawn themselves, and prevent the danger thereof hereand penned, the whole court thought it meet, and after. THE CHARGE GIVEN BY SIR FRANCIS BACON, KNIGHT, HIS MAJESTY'S ATTORNEY-GENERAL, AGAINST MR. OLIVER SAINT JOHN, FOR SCANDALIZING AND TRADUCING IN THE PUBLIC SESSIONS, LETTERS SENT FROM THE LORDS OF THE COUNCIL, TOUCHING THE BENEVOLENCE. MY LORDS, I shall inform you "ore tenus," against this gentleman, Mr. I. S.; a gentleman, as it seems, of an ancient house and name; but, for the present, I can think of him by no other name, than the name of a great offender. The nature and quality of his offence, in sum, is this: This gentleman hath, upon advice, not suddenly by his pen, nor by the slip of his tongue; not privately, or in a corner, but publicly, as it were, to the face of the king's ministers and justices, slandered and traduced the king our sovereign, the law of the land, the offence, I will set before you, first, the occasion five points: I will number them, because other whereupon Mr. I. S. wrought: then the offence itself, in his own words: and, lastly, the points of his charge. My lords, you may remember that there was the last parliament an expectation to have had the king supplied with treasure, although the event failed. Herein it is not fit for me to give opinion of a House of Parliament, but I will give testimony of truth in all places. I served in the Lower House, and I observed somewhat. This I do affirm, that I never could perceive but that there was in that House a general disposition to give, and to give largely. The clocks in the House perchance might differ; some went too fast, some went too slow; but the disposition to give was general: so I think I may truly say, "solo tempore lapsus amor.” This accident happening thus beside expectation, it stirred up and awaked in divers of his majesty's worthy servants and subjects of the clergy, the nobility, the court, and others here near at hand, an affection loving and cheerful, to present the king, some with plate, some with money, as free-will offerings, a thing that God Almighty loves, a cheerful giver: what an evil eye doth I know not. And, my lords, let me speak it plainly unto you: God forbid anybody should be so wretched as to think that the obligation of love and duty, from the subject to the king, should be joint and not several. No, my lords, it is both. The subject petitioneth to the king in parliament. He petitioneth likewise out of parliament. The king on the other side gives graces to the subject in parliament: he gives them likewise, and poureth them upon his people out of parliament; and so, no doubt, the subject may give to the king in parliament, and out of parliament. It is true the parliament is “intercursus magnus," the great intercourse and main current of graces and donatives from the king to the people, from the people to the king: but parliaments are held but at certain times; whereas the passages are always open for particulars; even as you see great rivers have their tides, but particular springs and fountains run continually. To proceed, therefore: As the occasion, which was the failing of supply by parliament, did awake the love and benevolence of those that were at hand to give; so it was apprehended and thought fit by my lords of the council to make a proof, whether the occasion and example both would not awake those in the country of the better sort to follow. Whereupon, their lordships devised and directed letters unto the sheriffs and Justices, which declared what was done here above, and wished that the country might be moved, especially men of value. Now, my lords, I beseech you give me favour and attention to set forth and observe unto you men may note them; and I will but touch them, because they shall not be drowned or lost in discourse, which I hold worthy the observation, for the honour of the state and confusion of slander. ers; whereby it will appear most evidently what care was taken, that that which was then done might not have the effect, no, nor the show, no, nor so much as the shadow of a tax; and that it was so far from breeding or bringing in any ill precedent or example, as, contrariwise, it is a corrective that doth correct and allay the harshness and danger of former examples. The first is, that what was done was done immediately after such a parliament, as made general profession to give, and was interrupted by accident: so as you may truly and justly esteem it, "tanquam posthuma proles parliamenti," as an after-child of the parliament, and in pursuit, in some small measure, of the firm intent of a parliament past. You may take it also, if you will, as an advance or provisional help until a future parliament; or as a gratification simply, without any relation to a parliament; you can no ways take it amiss. The second is, that it wrought upon example, as a thing not devised or projected, or required; no, nor so much as recommended, until many that were never moved nor dealt with, "ex mero motu," had freely and frankly sent in their presents. So that the letters were rather like letters of news, what was done at London, than otherwise: and we know "exempla ducunt, non trahunt:" examples they do but lead, they do not draw nor drive. The third is, that it was not done by commission under the great seal; a thing warranted by a multitude of precedents, both ancient, and of late time, as you shall hear anon, and no doubt warranted by law: so that the commissions be of that style and tenor, as that they be to move and not to levy: but this was done by letters of the council, and no higher hand or form. The fourth is, that these letters had no manner of show of any binding act of state: for they contain not any special frame or direction how the business should be managed; but were written as upon trust, leaving the matter wholly to the industry and confidence of those in the country; so that it was an "absque computo;" such a form of letters as no man could fitly be called to account upon. The fifth and last point is, that the whole carriage of the business had no circumstance compulsory. There was no proportion or rate set down, not so much as by way of a wish; there was no menace of any that should deny; no reproof of any that did deny; no certifying of the names of any that had denied. Indeed, if men could not content themselves to deny, but that they must censure and inveigh, not to excuse themselves, but they must accuse the state, that is another case. But I say, for denying, no man was apprehended, no, nor noted. So that I verily think, that there is none so subtle a disputer in the controversy of "liberum arbitrium," that can with all his distinctions fasten or carp upon the act, but that there was free-will in it. In this writing, my lords, there appears a monster with four heads, of the progeny of him that is the father of lies, and takes his name from slander. The first is a wicked and seditious slander; or, if I shall use the Scripture phrase, a blaspheming of the king himself; setting him forth for a prince perjured in the great and solemn oath of his coronation, which is as it were the knot of the dia dem; a prince that should be a violator and infringer of the liberties, laws, and customs of the kingdom; a mark for a Henry the Fourth; a I conclude, therefore, my lords, that this was a true and pure benevolence; not an imposition called a benevolence; which the statute speaks of; as you shall hear by one of my fellows. There is a great difference, I tell you, though Pilate would not see it, between "Rex Judæorum" and "se dicens Regem Judæorum." And there is a great difference between a benevolence and an exaction called a benevolence, which the Duke of Buckingham speaks of in his oration to the city; and defineth it to be not what the sub-match for a Richard the Second. ject of his good-will would give, but what the king of his good-will would take. But this, I say, was a benevolence wherein every man had a prince's prerogative, a negative voice; and this word, "excuse moy," was a plea peremptory. And, therefore, I do wonder how Mr. I. S. could foul or trouble so clear a fountain; certainly it was but his own bitterness and unsound humours. Now to the particular charge: Amongst other countries, these letters of the lords came to the justices of D—shire, who signified the contents thereof, and gave directions and appointments for meetings concerning the business, to several towns and places within that county: and amongst the rest, notice was given unto the town of A. The Mayor of A. conceiving that this Mr. I. S. being a principal person, and a dweller in that town, was a man likely to give both money and good example, dealt with him to know his mind: he intending, as it seems, to play prizes, would give no answer to the mayor in private, but would take time. The next day then being an appointment of the justices to meet, he takes occasion, or pretends occasion to be absent, because he would bring his papers upon the stage: and thereupon takes pen in hand, and, instead of excusing himself, sits down and contriveth a seditious and libellous accusation against the king and state, which your lordships shall now hear, and sends it to the mayor: and, withal, because the feather of his quill might fly abroad, he gives authority to the mayor to impart it to the justices, if he so thought good. And now, my lords, because I will not mistake or misrepeat, you shall hear the seditious libel in the proper terms and words thereof. The second is a slander and falsification, and wresting of the law of the land gross and palpable: it is truly said by a civilian, “Tortura legum pessima," the torture of laws is worse than the torture of men. The third is a slander and false charge of the parliament, that they had denied to give to the king; a point of notorious untruth. (Here the papers were read.) My lords, I know this paper offends your ears much, and the ears of any good subject; and sorry I am that the times should produce offences of this nature: but since they do, I would be VOL. II.-39 And the last is a slander and a taunting of an infinite number of the king's loving subjects, that have given towards this benevolence and free contribution; charging them as accessary and coadjutors to the king's perjury. Nay, you leave us not there, but you take upon you a pontifical habit, and couple your slander with a curse; but, thanks be to God, we have learned sufficiently out of the Scripture, that "as the bird flies away, so the causeless curse shall not come." For the first of these, which concerns the king, I have taken to myself the opening and aggravation thereof; the other three I have distributed to my fellows. My lords, I cannot but enter into this part with some wonder and astonishment, how it should come into the heart of a subject of England to vapour forth such a wicked and venomous slander against the king, whose goodness and grace is comparable, if not incomparable, unto any of the kings his progenitors. This, therefore, gives me a just and necessary occasion to do two things: The one, to make some representation of his majesty; such as truly he is found to be in his government, which Mr. I. S. chargeth with violation of laws and liberties: The other, to search and open the depth of Mr. I. S. his offence. Both which I will do briefly; because the one, I cannot express sufficiently; and the other, I will not press too far. My lords, I mean to make no panegyric or lau dative; the king delights not in it, neither am I fit for it: but if it were but a counsellor or nobleman, whose name had suffered, and were to 2 c2 receive some kind of reparation in this high court, I would do him that duty as not to pass his merits and just attributes, especially such as are limited with the present case, in silence: for it is fit to burn incense where evil odours have been cast and raised. Is it so that King James shall be said to be a violator of the liberties, laws, and customs of his kingdoms? Or is he not rather a noble and constant protector and conservator of them all? I conceive this consisteth in maintaining religion and the true church; in maintaining the laws of the kingdom, which is the subject's birthright: in temperate use of the prerogative; in due and free administration of justice, and conversation of the peace of the land. For religion, we must ever acknowledge, in the first place, that we have a king that is the principal conservator of true religion through the Christian world. He hath maintained it not only with sceptre and sword, but likewise by his pen; wherein also he is potent. He hath awaked and re-authorized the whole party of the reformed religion throughout Europe; which, through the insolency and divers artifices and enchantments of the adverse part, was grown a little dull and dejected: He hath summoned the fraternity of kings to enfranchise themselves from the usurpation of the see of Rome: He nath made himself a mark of contradiction for it. Neither can I omit, when I speak of religion, to remember that excellent act of his majesty, which, though it were done in a foreign country, yet the church of God is one, and the contagion of these things will soon pass seas and lands: I mean, in his constant and holy proceeding against the heretic Vorstius, whom, being ready to enter into the chair, and there to have authorized one of the most pestilent and heathenish heresies that ever was begun, his majesty by his constant opposition dismounted and pulled down. And I am persuaded there sits in this court one whom God doth the rather bless for being his majesty's instrument in that service. I cannot remember religion and the church, but I must think of the seed-plots of the same, which are the universities. His majesty, as, for learning amongst kings, he is incomparable in his person; so likewise hath he been in his government a benign or benevolent planet towards learning: by whose influence those nurseries and gardens of learning, the universities, were never more in flower nor fruit. For the maintaining of the laws, which is the hedge and fence about the liberty of the subject, I may truly affirm it was never in better repair. He doth concur with the votes of the nobles: "Nolunus leges Angliæ mutare." He is an enemy of innovation. Neither doth the universality of his own knowledge carry him to neglect or pass over the very forms of the laws of the land. Neither was there ever king, I am persuaded, that did consult so oft with his judges, as my lords that sit here know well. The judges are a kind of council of the king's by oath and ancient institution; but he useth them so indeed: he confers regularly with them upon their returns from their visitations and circuits; he gives them liberty, both to inform him, and to debate matters with him; and in the fall and conclusion commonly relies on their opinions. As for the use of the prerogative, it runs within the ancient channels and banks: some things that were conceived to be in some proclamations, commissions, and patents, as overflows, have been by his wisdom and care reduced; whereby, no doubt, the main channel of his prerogative is so much the stronger. For evermore overflows do hurt the channel. As for administration of justice between party and party, I pray observe these points. There is no news of great seal or signet that flies abroad for countenance or delay of causes: protections rarely granted, and only upon great ground, or by consent. My lords here of the council, and the king himself meddle not, as hath been used in former times, with matters of "meum" and "tuum," except they have apparent mixture with matters of estate, but leave them to the king's courts of law or equity. And for mercy and grace, without which there is no standing before justice, we see, the king now hath reigned twelve years in his white robe, without almost any aspersion of the crimson dye of blood. There sits my Lord Hobart, that served attorney seven years. I served with him. We were so happy, as there passed not through our hands any one arraign ment for treason; and but one for any capital offence, which was that of the Lord Sanquhar; the noblest piece of justice, one of them, that ever came forth in any king's time. As for penal laws, which lie as snares upon the subjects, and which were as a "nemo scit" to King Henry VII.; it yields a revenue that will scarce pay for the parchment of the king's records at Westminster. And, lastly, for peace, we see manifestly his majesty bears some resemblance of that great name, "a prince of peace:" he hath preserved his subjects during his reign in peace, both within and without. For the peace with states abroad, we have it "usque ad satietatem:” and for peace in the lawyers' phrase, which count trespasses, and forces, and riots, to be "contra pacem;" let me give your lordships this token or taste, that this court, where they should appear, had never less to do. And, certainly, there is no better sign of "omnia bene," than when this court is in a still. But, my lords, this is a sea of matter: and therefore I must give it over, and conclude, that there was never king reigned in this nation that did better keep covenant in preserving the liberties |