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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 Jaris, the nature and purpose of which is given in the 82nd and following aphorisms of the 8th Book De Augmentis. 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.
by evidence of reason," and in fact "to correct the law." This is a matter to be borne in mind, if any lawyer should think it worth while to examine the examples in detail with the authorities.
The Reading on the Statute of Uses has perhaps received more attention than the Maxims. It has always been cited with respect, and was edited in 1804, with notes far exceeding the text in length, by Mr. Rowe. It is however only a fragment of a course which Bacon was called upon to give in Gray's Inn as Double Reader in 1600. It is not mentioned in a list of MS. works on Professional Subjects,2 which he made
1 I believe he might have added that in many more cases he has attempted, as it were, to infuse a rational principle into decisions made at haphazard or on accidental grounds.
2 "July 25. 1608.
Continuatur series librorum cartaceorum.
Libri professoris: vt. of the Laws of England.
1. Regulæ Juris cum limitationibus et casibus. This is merely a composition of mine own, and not note-book.
2. Patrocinia et actiones causarum. Arguments in law by me made. This is also a composition; being a book of pleadings; such as Marions in French.
3. Observationes et commentationes in Jure, ex conceptu proprio sparsim intratæ.
4. Observationes et annotationes in Jure, ex libris et Authoribus Juris sparsim intratæ.
5. Digesta in Jure; hoc est, annotationes tam ex conceptu proprio quam ex Authoribus Juris ordinatæ per titulos. A mere commonplace book of Law.
6. Exempla Majorum in Jure: containing precedents and usages and courses of Courts, and other matter of experience.
7. Lecta sive specialia in Jure; being notes and conceits of principal use, and entered with choice, both for mine own help, and hereafter per case to publish.
8. Diarium fori. The book I have with me to the Courts, to receive such remembrances as fall out upon that I hear there.
9. Vulgaria in Jure; being the ordinary matters, rules and cases admitted for law; to take away shew of being imperfect or unready in common matters; together with some abridgement of special cases for mine own memory, and all other points for shew and credit of readiness and reading.
in 1608; and we do not know to whom we owe the preservation of what we now have, nor whether the rest of the course was ever extant in writing. It may have been delivered viva voce or from rough notes; nor would it be inconsistent with the common practice, as shown by the extant records of Gray's Inn, to conjecture that the course may never have been finished. It is however to be observed that the MSS. I have collated, besides breaking off at different points, vary in phraseology in a way hardly to be accounted for but upon the supposition that Bacon himself must have revised the text at least once.
The remainder, besides the additional pieces above mentioned, contains the Ordinances in Chancery, in which we may trace with certainty some part to Bacon's own hand, though the main body must be supposed to have previously existed in some shape or other, written or unwritten; and some miscellaneous matter which has been found by collectors and attributed to Bacon, but of which every one is at liberty to form his own judgment from internal evidence, and which I reprint (most of it) only because it has been heretofore printed. The original of this part of the collection, so far as it is genuine, was, I suppose, to be found in the common-place books of various kinds which Bacon kept and has catalogued in the Commentarius Solutus; some of them, it is to be observed, containing notes of his own, and some, extracts from other
Libri concernentes Servitium Regis 4.
Lib. servitii reg. in Parlamento.
Lib. servit. reg. quoad reventiones et Commodum.
Lib. servitii regis quoad causas Justitiæ et forenses.
Lib. servit. reg. quoad causas status."
Commentarius Solutus (the whole of which will be printed in its place among the Occasional Works).