the measures actually taken were not effectual in settling the dispute; of which we shall bear more in due time.

5.

The other draft relates to a subject of more general interest, and looks to me very much like an original suggestion of Bacon's own, appreciated and acted on by the King, but (1.ke many of his ideas) too far in advance to take effect upon popular opinion. The British Jury' is one of our most venerated institutions, and has done and continues to do an incalculable amount of good service. Yet it cannot be said that on a disputable question of fact the decision of a Jury carries much authority in men's opinions; or that our veneration for the institution protects it from ridicule, when the verdict is distasteful. This could hardly be,-the gravity of the office considered, if the capacity of the men to whom it is usually committed were not felt to be somewhat below the general level. And it is very difficult to say why a business of such importance should be thought below the dignity of the best instructed classes, or entrusted to any below the best procurable. The truth, I suppose, was simply that the service being troublesome and unattractive, the higher classes used their influence to be relieved from it; and fashion is too strong for kings and laws. The following draft, written in a hand known to have been in Bacon's employment about this time, and corrected and docketed in his own, was an attempt to introduce a better fashion; which, had it succeeded, would have greatly raised the value of a Jury's verdict, and produced effects, direct and indirect, more than can be easily estimated; and certainly beneficial. The form in which it was originally drawn being that which best represents Bacon's idea, (if I am right in supposing it to be of his composition), I print it from the manuscript as it stood before Salisbury touched it.

A PROCLAMATION FOR JURORS.1

As it is a principal part of our kingly office to administer justice to our people, by which also our throne and sceptre is established and confirmed; so we conceive that we may truly and justly thus far reap the fruit of a good conscience, as to be witness to ourselves, and likewise to report ourselves not only to our Privy Council, which are acquainted with our more secret

1 This is the title of the printed Proclamation. The draft (Dom. Jas. I. xxviii. 67) has no title, but is docketed in Bacon's hand, 'Jurors,'

cares and cogitations, and our Judges and Learned Counsel, with whom we have had more frequent conference than princes formerly have used, but generally also to all others our loving subjects (in regard of some our public actions), whether in these few years of our reign (notwithstanding we could not be at our first entrance so well informed as now we are in the laws and customs of this our realm) we have not exercised and employed our princely care, power, and means for the furtherance and advancement of justice duly and speedily to be administered to all our loving subjects. For it appeareth that we have encreased the number of our Judges in our principal benches, to avoid the delay of the subject by equality of voices; and we have moderated and appeased some differences and contentions amongst our Courts in point of jurisdiction, to avoid double vexation of suits; and have from time to time in person given more strait charge to our Judges before their circuits and visitations, and received again from them more strait accounts and reports at their returns, than heretofore hath been accustomed. And as we have been thus careful of our Courts and Judges of the Law, so may we nowise omit to extend our princely care to another sort of judges (though they be termed by another name) upon whom lieth a principal part of judicature, which are the Judges of the fact, and by the custom of the realm called Jurors, which try and decide the issues and points of fact in all controversies and causes;—a matter no less important to the sum of justice than the true and judicious exposition of the laws themselves. For even that judgment which was given by a King in person, and is so much commended in the Scriptures, was not any learned exposition of the law, but a wise sifting and examination of the fact, where testimony was obscure and failed: unto which sort of Judges also the law of this our realm doth ascribe such trust and confidence, as it neither ties them to the evidence and proofs produced, neither disableth any witness (except in case of perjury) to be used; but leaveth both supply of testimony and the discerning and credit of testimony wholly to the Juries' consciences and understanding, yea to their private knowledge. But herewithal we consider with ourselves that this proceeding by Jury, which is one of the fundamental laws and customs of this our island of Brittany, and almost proper and singular unto it in regard of other nations, as it is an excellent institution in itself (as that

which supplieth infinite delays which grow upon exceptions to witnesses; spareth rigorous examination by torture in cases capital; and doth not accumulate upon the same persons the trust and confidence to be Judges both of law and fact;) so nevertheless it is then laudable and good when those persons which serve upon the said Juries are men of such quality, credit, and understanding, as are worthy to be trusted with so great a charge as to try men's lives, good names, lands and goods, and whatsoever they hold dear in this world. Wherein we cannot but observe and highly commend the wisdom of the laws of this our realm (taking them in their own nature before abuses crept in) which have in this point so well provided. For as in the trial of any Peer of this realm, the law doth not admit any to pass upon him but Peers, so in the trial of any of the Commons (which the law beholdeth but as one body) there is no person whatsoever (were he of our Counsel of Estate) by rule of law exempted, in respect of his quality and degree only, from the service upon Juries; whereas on the contrary part the law hath limited that none serve except he have a certain proportion of freehold; and yet notwithstanding time and abuse have so embased the estimation of this service, and altered the use thereof, as sheriffs, under sheriffs, and bailiffs do not only spare gentlemen of quality in a kind of awe and respect; but do likewise for lucre, gain, and reward, forbear to return many of the ablest and fittest persons; so that the service oftentimes resteth upon such as are either simple and ignorant, and almost at a gaze in any cause of difficulty; or else so accustomed and inured to pass and serve upon Juries, as they have almost lost that tenderness of conscience which in such cases is to be wished, and make the service as it were an occupation or practice. Upon these grounds therefore, and upon advice taken with our Privy Counsel and conference with our Judges and Counsel Learned, we have resolved to give remedy to these abuses, and to restore the trial of this our realm of England to the ancient integrity and credit. And therefore we do hereby publish and declare to all our loving subjects, that they take light from us of the greatness of this service; and that the gentlemen of the best quality do put away that vain and untrue conceit that they are any ways disgraced or disesteemed, if they be called upon or used in this part of Justice to be Judges of the fact; knowing that all judgment is

God's principally, and by him committed unto us within the precinct of our kingdoms as his minister upon earth, to whom likewise they are subordinate; and we do likewise charge and command all our Judges, Justices, Sheriffs, Undersheriffs, Bailiffs, and others to whom it may appertain, to take knowledge that it is our express will and pleasure that all persons which have freehold according to the law (other than such as we shall by our express letters patents privilege and discharge, which we mean to do moderately, and but upon special circumstances, and upon a reasonable fine as hath been used) shall be returned to serve upon Juries as occasion shall require; foreseeing also that they use a respect that the same persons be not too oft returned and troubled; but that the service may rest more equally and indifferently upon the whole body of freeholders in every county, the one to ease and relieve the other; wherein nevertheless our intention is not but that there be a discretion retained in returning the more principal persons upon the greatest causes. And above all we do strictly admonish and prohibit our said sheriffs and the undersheriffs and bailiffs, that they presume not at their uttermost peril directly or indirectly to take any manner of reward profit or gratification whatsoever for sparing or forbearing any person whom the law doth allow to be returned upon the service aforesaid, upon pain to be punished with all severity according to our laws, and also as contemners of this our Royal prohibition.

The idea was approved by the Government, and the proposed Proclamation, with many additions, omissions, and alterations, chiefly by Salisbury, but without substantial variation, so far as I can see, was published by authority on the 5th of October, 1607. The seed fell upon soil too hard trodden by custom to nourish and make it grow; and it is not likely that it will ever bear fruit in old England. But reason does not die, and it may be that in some younger community the principle may yet be taken up by "the common sense of most," and the function of the petty Jury may come to be regarded as equal in dignity to any.

"A book of Proclamations, published since the beginning of his Majesty's most happy reign over England, etc., until the present month of Feb. 3, anno dom. 1609."

393

INDEX TO VOLUME III.

The small roman numerals refer to the Preface.