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THE most important difference between this edition. of Bacon's Professional Works and its predecessors results from a careful collation of all accessible MSS., which, with the occasional correction of obvious blunders, has, I believe, made many passages of the text intelligible for the first time.
It will be found also to differ from the common editions by the addition of two Legal Arguments, one of which has been before published in the Collectanea Juridica, and of a paper on Bridewell Hospital, which has been printed in the Reports of the Charities Commission; and by some minor variations in the miscellaneous part of the collection.
The preface to each piece gives such information as I have been able to gather tending to elucidate its history and purport; and I have added notes (more freely than I originally intended), most often where former commentators, in MS. or in print, had suggested questions, but sometimes on difficulties which have occurred to myself.
More than this did not seem to be required, and indeed would scarcely have been justifiable in an edition of Bacon's collected Works, when we look to the character of these professional pieces and consider the very
subordinate position they occupy in the history of his own literary activity, and the comparatively small influence which, on that if on no other account, they can be supposed to have exercised on the progress of English Law.
None of them were published in Bacon's lifetime. Four Arguments of Law, with a dedicatory preface, were prepared by him for publication, — apparently as part of a larger collection, — during the period when he was Solicitor and Attorney General, professedly as specimens of forensic eloquence, and mainly, one may suppose, with a view to establishing or enhancing his own professional reputation. His rapid rise and other avocations may account for the design having been dropt; and at all events we have no evidence that it was actively pursued after 1616. The argument for the Postnati, and some papers relating to the Union, were also corrected by him; but, whether intended for publication or not, they seem to have been collected with a view to furthering that great design of State rather than with any permanent literary purpose.
None of the other works come to us direct from Bacon's hand. Their importance and claims to be considered authentic are various.
The Use of the Law appears to me to possess no value, antiquarian or other, at the present day; and in my preface to it I have given my reasons for believing it to be spurious.
There is some obscurity about the date, as a whole, and the dress, of the Maxims of the Law, which I have noticed in the preface; but any how, besides its intrinsic merits, it is all that we have, and must be taken as the representative, of a work by which Bacon hoped to
obtain reputation as a lawyer rivalling with Coke,1 and which from 1596 to the close of his life he was offering as his own contribution towards that great Instauration of the English Laws, the promotion and direction of which would seem to have been, next to that other Instauration of Natural Science, the most persistent of his nobler aims.
That other scheme, even as an exposition of principles, remained a fragment, and was to a great extent abortive (as I think Mr. Ellis has made it clear), partly because it was premature and based on a misconception and underrating of the conditions and difficulties of the problem, and partly from an inaptitude in Bacon for accurate experimental research. His failure in Law Reform does not appear to me traceable to any similar cause. A Digest of English Law on the principles laid down in the 8th Book De Augmentis and in the Proposal for Amending the Laws is surely conceivable even now, and would seem the very work for which the times between the middle of Elizabeth's reign and the end of James's were specially fitted. The Year Books were closed and roughly digested by Fitzherbert and Brooke, and the statute laws lay within very manageable compass. Historically, all authoritative maxims of Law were to be extracted from these definite materials; and the theoretical principles necessary for reconciling what was inconsistent and modifying what seemed absurd or unsuitable to the times were equally ready at hand in the Civil Law. There was no lack of men fit to form a gook working staff, sages of the English Law never surpassed at home, or learned civilians abroad. Nor was there any task for which Bacon would seem
1 Proposal for amending the Laws of England.
to have been intellectually better fitted than the superintendence of such a work. It is for his biographer and the historian of these reigns to explain why nothing was done; but the fact that the work is still almost untouched seems to show that the causes lie deeper in the structure of our society than can be laid exclusively to the account of those times or persons.
Although I believe the fragment of the Maxims which we have was all written by about 1597, yet I see no reason for doubting that it represents adequately enough in point of workmanship that auxiliary Treatise De Diversis Regulis Juris, the nature and purpose of which is given in the 82nd and following aphorisms of the 8th Book De Augmentis.1 But the question how far he had succeeded, or how near he would with encouragement have attained to the completion of his design, must remain unsolved; and I suppose no one will be found to take it up again. It was no less than to extract from the whole body of decided cases, so far as such materials would admit it, the common Rules and Maxims of justice by which they are related to each other, with their limitations and exceptions, exemplified by a sufficient collection of examples. Besides the dangers of fanciful analogies, and the difficulty in many cases of ascertaining the true ratio decidendi, it is obvious that the number of accidental or really anomalous decisions would be very great; and indeed one use of the work would have been to point them out for correction, if need were, and avoidance as precedents in new cases. Bacon was fully aware of this, and warns us in his preface that "in some few cases" of his specimen "he did intend expressly to weigh down the authority
1 Vol. III.