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This was first published by Mr. Martin in his Report on Bridewell Hospital, 32nd Rep. of Charity Commission, part 6. p. 576.: from Harl. MS. 1323. He was kind enough to point it out to me; but Mr. Spedding had already made a copy of the MS., not being aware of its having been already printed.
There is another copy in the Cambridge Library, which is anonymous; and I am not aware of any
circumstances otherwise tending to authenticate it. It appears however to be a legal opinion, to which a name must from the first have been attached, and I see no intrinsic reason for doubting its being Bacon's, of a time when he was a young man.
It speaks of “Her Majesty that now is,” and was therefore written in Elizabeth's time, and a reference to Mr. Martin's Report will lead us to fix the date without much hesitation as of some time before Oct. 11th 1587. An order of Common Council, now at Guildhall, dated Augst. 4th 1579, professed to give the Governor of the Hospital very arbitrary powers over the rogues and vagabonds of London. A modified copy of this order, in print, is at Bridewell, bearing date Octr. 11th 1587. Mr. Martin thinks the date may be a mistake ; and as he does not set out the differences between the two, I can form no opinion whether this really a new order : but on this same day another order was made with the preface, “ This day certain orders and ordinances lately devised by the committees who were appointed to devise means for the banishment of rogues &c., were here in open court read, and by the same ratified and confirmed ;” and the ordinances which follow are of a much less stringent character. Nothing seems more probable than that the question had been in the meantime discussed, whether it was quite safe to rely on the charter, and to ground on it such very strong measures as were at first contemplated.
If the paper be really Bacon's, it appears to me to be very interesting, as it ascertains in the most authentic way the constitutional opinions with which he entered into life. In particular, it is curious to see the jurisdiction of the Welsh Council rested on a purely parliamentary basis. I see no sufficient reason for thinking he ever altered this opinion, though he was of counsel to those who maintained the contrary one.
1 See Preface to the Argument for the Council of the Marches.
A BRIEF DISCOURSE
THE COMMISSION OF BRIDEWELL,
SIR FRANCIS BACON, KNIGHT.1
Inter magnalia regni, amongst the greatest and most haughty things of this kingdom, as it is affirmed in the 19th
year of Henry the 6th, 63,2 la ley est la plus haute enheritance que le Roy ad, &c. that is, the Law is the most highest inheritance that the King hath ; for by the law both the King and all his subjects are ruled and directed, &c.
The maxims and rules by which the King is directed are the ancient Maxims, Customs, and Statutes, of this land.
The Maxims are the foundations of the Law, and the full and perfect conclusions of reason.
The Customs of the Realm are properly such things as through much, often, and long usage either of simplicity or of ignorance getting once an entry, are
1 The Cambridge MS. has merely “ A Discourse upon the Commission of Bridewell.” I do not suppose either title is the original one.
? The page of the Year Book is never given throughout the MS. When I have succeeded in lighting upon it, I have added it to the
entered and hardened by succession, and after be defended as firm and stable laws.
The Statutes of the realm are the resolute decrees and absolute judgments of the Parliament, established by the King with the common consent of three Estates, who do represent the whole and entire body of the realm of England.
To the purpose of this discourse the law is, if any Charter be granted by a King the which is repugnant to the Maxims, Customs, or Statutes of the Realm ; then is the Charter void. And it is either by quo warranto or by scire facias (as learned men have left precedents) to be repealed. Anno 19: Ed. 3.
That a King's grant either repugnant to law, custom, or statute is not good nor pleadable in the law, see what precedents thereof have been left by our wise forefathers. It is set down in the 14th Henry the 6th 11, 12. that King Henry the 2d had by his Charter granted to the Prior and Monks of St. Bartholomews in London, that the Prior and his Monks should be as free in their Church as the King was in his Crown; yet by this grant was the Prior and his Monks deemed and taken to be but as subjects, and the aforesaid grant in that respect to be void : for by the law the King may not any more disable himself of his regal superiority over his subjects, than his subject can renounce or avoid his subjection against or towards his King or superior. You know Story would have renounced his loyalty and subjection to the Crown of England and would have adopted himself to have been a subject to King Philip. Answer was made by the Court, for that by the laws of this Realm neither may the King
1 Dyer, 300.
tray 1 The MSS. have 31 Hen. 6. but a reference to 37 Hen. 6th is annexed, which is clearly the true one. S. C. Br. Prerog. 103.
release or relinquish the subjection of his subjects, neither may the subject revolt in his allegiance from the superiority of his Prince.
There are two notable precedents in the time of King Edward the 3d, the which although they take place in some one respect, yet were they not adjudged of according to the mind of the King being the grant
That is, the King granted unto the Lord William Montague the Isle of Wight, and that he should be crowned King of the same. And he also granted unto the Earl of Darby the Isle of Man and that he should be crowned King of the same.
Yet these two personages notwithstanding the said grants were subjects; and their islands were under the dominion and subjection of the King; and in that respect were the
It was spoken in the 8th of Henry 4th 9., Quod potestas principis non est inclusa legibus : that is, a prince's power is not bounded by rules or limits of the law. Howsoever that sentence is, see the law agreed to the contrary, the 37th of Henry 6th 26, 27. whereas it is agreed for law that it is not in the King's power to grant by his Charter that a man seised of lands in fee simple may devise by his last will and testament the same lands to another, or that the youngest son by the custom of Borough English shall not inherit; or that lands being frank fee shall be of the nature of ancient demesne; or that in a new incorporated Town an assise of fresh force should be used, or that they shall have toll travers or through toll or such like, &c. 49 Ass. 4, 8.