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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.?
! See Preface to the Argument for the Council of the Marches.
A BRIEF DISCOURSE
THE COMMISSION OF BRIDEWELL,
SIR FRANCIS BACON, KNIGHT.'
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,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 buth 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 entered and hardened by succession, and after be defended as firm and stable law's.
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,
I The Cambridge US, las 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 indled it to the text.
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 And it is either by quo warranto or by scire facias (as learned men have left precedents) to be repealed.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 bimself 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 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 grantor. 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 grants void.
It was spoken in the 8th of Henry 4th I., Quod potestas principis non est inclusa legibus : that is, al prince's power is not bounded by rules or limits of the law. Howsoever that sentence is, see the l:ww agreed to the contrary, the 37th 2 of IIenry 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.
i Dver, 300.
2 The MSS. have 31 llen. 6. but a reference to 37 Hen. 6th is annexed, which is clearly the true one. S C Br Pretou. 10.
See also a notable case agreed for law in the 6th of Henry 7th 4. where the justices do affirm the law to be that Rape is made felony by statute, that the same by the law is not enquirable but before justices that have authority to hear and determine of the same: in this case the King cannot by his charter make the same offence to be enquired of in a Lawe day, nor the King cannot grant that a Leet shall be of any other nature than it is by course of the Common Law. So that thereby it appeareth that the King may not either alter the nature of the law, the form of a court, or the manner and order of pleading.
And in the 8th of Henry 6th 19. it is agreed for law that the King may not grant to J. S. that J. S. may be judge in his own proper cause, nor that J. S. shall [not]' be sued by any action at the Common Law by any other person, nor that J. S. shall have a market, a fair, or a free warren in another man's soil.
And in the long Record?, by Hill the reverend judge it is said for law, that whereas the King hath a Prerogative that he shall have the wardship of the body of his tenants although he hold of the King by posteriority, yet if the King grant his signory unto another with like prerogative notwithstanding any posteriority, this prerogative shall not pass , fur, saith the book, the King by his charter cannot change the law. The same law is, that the King cannot grant unto another the prerogative of nullum tempus occurrit Regi, nor that a descent shall noi take away an entry, nor that a collateral warranty shall not bind, nor that possessio fratris shall not take place, nor that the wife shall not be endowed of her husband's lands, nor that inheritance shall lineally ascend, nor that any subject shall be under protection from arrests and suits and such like, &c.
Yet do not we sce daily in experience that whatsoever can be
procured under the great seal of England is taken quasi sanctum ; and although it be merely against the laws, customs, and statutes of this realm, yet it is defended in such sort, that some have been called rebellious for not allowing such void and unlawful grants ?
And an infinite number of such like precedents I could set down to maintain the aforesaid argument, but these few examples shall serve for this time, &c.
But now have we to see if the said Charter granted to the city, concerning the authority of the Governor of Bridewell, stand with the laws, customs, and statutes of this Realm, or not: the effect of which charter in one place is that the Governors have authority to search, enquire, and seek out idle ruffians, tavern haunters, vagabonds, beggars, and all persons of evil name and fame whatsoever they be, men or women, and then to apprehend and the same to commit to Bridewell, or by any other way or means to punish or correct them as shall seem good to their discretions.
Ilere we sce what the words of the said Charter are. Now are we to consider what the words of the Law be.
See Magna Charta of the liberties of England, cap. 29. No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or any other way destroyed, nor we shall not pass upon him nor condemn him but by lawful judgment of men of his degree, or the law of the land.
Now if we do compare the said Charter of Bridewell with the great Charter of England both in matter, sense, and meaning, you shall find them merely repugnant.
In the said great Charter of England, in the last chapter, amongst other things the King granteth for him and his heirs, that neither he nor his heirs shall procure or do anything whereby the liberties in the said Charter contained shall be infringed or broken; an:l if anything be procured or done by any person contrary to the premises it shall be bad of no force or effect. Here must you note also that the said great Charter of England is not only confirmed by the statute of Varlebridye, cap 5., but also by many other statutes made in the time of King Edward 3rd, King Richard 2nd, IIenry 4tlı, Henry 5th, and Henry 6th, amongst sundry of which confirmations I note one above the rest, the which is Anno 42