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unto your good discretions, desiring you in regard of his great loss and troubles to afford him that which you deny to no man, lawful favour and expedition, which I shall be always ready thankfully to acknowledge by such friendly offices as shall fall within my compass. And so I leave you to God's safe tuition, resting
Your very loving friend,
The last is a thing of greater value. It shows Bacon for the first time in a judicial position, and is connected with a small measure of legal reform, which was probably of his own advising.
It may be remembered that among his memoranda on the 25th of July 1608 one was "to make somewhat of his suit and reference touching the place of the Marshalsea, either for himself or for some other."l The Court of the Marshalsea was a very ancient court, held by the Steward and Marshal of the King's House; who appears originally to have had a general jurisdiction over all offences committed within a circle of twelve miles round the settled mansion of the King. But in the 28th year of Edward I. his authority was defined and limited. By the famous Articuli super chartas it was ordained that from thenceforth the Stewards and Marshals should "not hold plea of Freehold, neither of Debt, nor of Covenant, nor of any Contract made between the King's people; but only of trespass done within the House, and of other trespasses done within the Verge, and of Contracts and Covenants that one of the King's House shall have made with another of the same House, and in the same House, and none other where":-that they should "plead no Plea of Trespass, other than that which shall be attached by them. before the King depart from the Verge where the Trespass shall be committed; and shall plead them speedily from day to day," etc. :and that from thenceforth the Steward should "not take cognizance of Debts nor of other things, but of people of the same House," nor "hold none other Plea by Obligation made at the distress of the Steward and of the Marshals."2 Now with regard to the jurisdiction in case of contracts and covenants, the limits of the authority of the Court were clearly defined. But with regard to trespasses, there was room for doubt whether its authority extended to all trespasses done within the Verge, or only to those in which both or one of the parties belonged to the King's House. Upon this point dis1 Supra, p. 44. 2 Statutes of the Realm, vol. i. p. 138.
putes had been raised in the Common Law Courts: and there was one at this time pending. An action had been brought against certain officers of the Marshalsea Court for executing a writ: the plaintiff pleading that he was not of the King's House. And though the case had not yet been finally decided, it was easy to guess, when such a question came before Sir Edward Coke as one of the Common Law Judges, which way the decision would go.
Whether Bacon held a brief in this case does not appear: for Coke's report (Part X. p. 68), which gives the substance of the arguments, does not mention the names of any of the Counsel. But it would naturally bring the question under his consideration, especially as the proceedings of the Marshalsea Court had been the subject of debates in Parliament; and it seems probable that the course which the King took in the matter was taken by his advice. The Steward, who presided over the Court, was at that time Sir Thomas Vavasor, marshal of the King's Household: and it was obvious to suggest that for the due discharge of such an office the assistance of a lawyer was wanted. Accordingly it seems that Bacon himself was joined with him in it. For in a "list of some of the Stewards of the Marshalsea," appended to an essay on the history of the Court, the name of "Sir Francis Bacon, Solicitor General" is given under the date "8 Jac :" which was 1610. But though the presidency of a lawyer would save the Court from getting into trouble by exceeding its jurisdiction, it would reduce that jurisdiction within limits so narrow that the Court would be of little use. Bacon was always of opinion that justice was best when it was to be had near hand and it may easily be supposed that when asked how this dispute about jurisdiction would be best settled, he would advise to settle it by establishing the authority of this Court rather than by abandoning it. It was within the
power of the Prerogative, as then interpreted, to erect a new Court of Record: and on the 8th of June 1611, James created by Patent a new Court,to be called "the Court of the Verge;" for reasons which are fully explained in the preamble-and were most likely drawn up by Bacon himself.
Whereas we have been informed of some complaints and griefs concerning the Court of Marshalsea made as well in Parliament as otherwise, and thereupon have been moved to give direction that the ground of such complaints should be examined and considered, and thereby have discovered that they have not arisen so much out of the nature of the jurisdiction, where the suitors have speedy justice from day to day and have likewise the benefit of special gaols and speedy trials, as in respect
1 'Essay towards a History of the Ancient Jurisdiction of the Marshalsea.' Lond., 1812.
partly of the fee commonly called the Knight Marshal's fee, which is great and laid upon the defendants, and yet nevertheless is the ancient fee which hath been time out of mind used; and partly through some courses of vexation in the exercise of that jurisdiction, as arrests in time of progress, when the suitor cannot by any possibility have the effect of his suit, by reason of the removes of the Court: and likewise by the not awarding of the costs to the full against the Plaintiff where the suit appeareth to be but upon vexation; and also by the multitude of the Knight Marshal's men that make a gain upon arrests by stirring of suits upon malice or frivolous causes: And whereas the jurisdiction of the said ancient Court of Marshalsea is defective in power to hold plea of many personal actions, so as our loving subjects within the Verge cannot there have the like ease in their suits as the inhabitants of other inferior liberties have: We have thought it the most expedient way by these our letters patents, chiefly for the ease of our said loving subjects within the Verge, by consent of the said Knight Marshal, to abate in great part his fee and by special ordinance and provision to repress all points which have and may make the said ancient Court of Marshalsea grievous; and by other letters patents of the date of these presents to erect a new Court within the Verge for personal actions which concern persons not being or which hereafter shall not be of our household, to be before the said Knight Marshal and some fit person learned in the law, and therein to grant the said Knight Marshal such fees as may be easy for the subject to bear, and yet in some measure by reason of the said actions countervail his loss of fees abated as aforesaid; and therefore have ordained and constituted, etc.
The Patent follows, with a full description in due form of the duties and authorities of the new Court, the fees which may be lawfully taken by the several officers, the times and places of sitting, etc. and appointing as Judges for the present Sir Thomas Vavasor and Sir Francis Bacon."l
It was, I presume, upon the first opening of this Court (the date of which I have not succeeded in discovering) that Bacon delivered the following charge to the Grand Jury.
The measure appears to have been a satisfactory one, for we hear of no more complaints of the Marshalsea Court during Bacon's life. The new Court under these Letters Patent continued till 6 Charles I.2 and was afterwards renewed by Charles II.: on which occasion, I suppose, Bacon's charge was printed as a separate pamphlet,3 with the motto-Lex vitiorum emendatrix, virtutum commendatrix est.
The copy which follows is taken from a manuscript corrected in places by Bacon himself; though it still contains many obvious errors which, with the help of previous editors, I have myself corrected.
1 Rolls House: Patents 9 James I. Pars 7a.
Essay towards a history of the ancient jurisdiction of the Marshalsen Court,' 3 London, 1662.
THE JUDICIAL CHARGE OF SIR FRANCIS BACON, KNIGHT, THE KING'S SOLICITOR-GENERAL UPON THE COMMISSION OF OYER AND DETERMINER FOR THE VERGE.1
You 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. For as of two evils, it were better mens doings were looked into overstrictly and severely, than that there should be a notorious impunity of malefactors: as was well and wisely said of ancient time, 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 begins, and the law cannot pursue and chase offenders to their deserved fall, except you first put them up 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, watchful, 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 besides 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.
I Harl. MSS. 6797, f. 161. The title has been inserted in Bacon's hand.
But there is yet more cause why you should take more special regard to your presentments, than any 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 household, 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 the King's chair of estate, which therefore ought to be cleared and voided more than other places of the kingdom; for if offences shall be shrouded under the King's wings, what hope 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; so where the King cometh, there should come peace and order, and an awe and reverence in mens hearts.
And this jurisdiction was in ancient time executed, and since by statute ratified, by the Lord Steward with 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 less state, yet it hath more strength legally. Therefore I say, you that are a jury of the Verge should lead and give a pattern to others in the care and conscience of your presentments.
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