The internal evidence is, to me, nearly decisive against it; but this must be in a great measure matter for each man's personal impression, and I can only briefly state my own. 1. As to style: I do not think it would have been possible for Bacon to have written so many consecutive pages on any subject, however dry and technical, without some turns of expression, some illustrations, some hints of a range of thought beyond his immediate subject, which would at once be felt to be characteristic of the man; and I cannot perceive any one passage of the kind. The treatise is favourably distinguished from many others of that time by freedom from pedantic affectations of classical or scriptural learning and philosophy; but if it is free from the spurious pretence, it is equally so from the thing itself. 2. The matter of the treatise may, as Mr. Maunsell says, have been very useful for young students, but the method seems to be peculiarly unlike Bacon's, and indeed childish. In any known treatise of Bacon's, whatever else may be unfinished, the preface and introduction, the laying out of the plan and conception of the work, are perfect: it is obviously the first step he took, and he often went no farther; and if such preface was lost or was in fact never written, the body of the treatise might be aphoristic, but never ill planned. Here, in a work on the use of the law, i. e. its application to private rights, we have nothing proposed for discussion but wrongs of violence to the person, the ways in which men may dispose of (and, we must infer, acquire) property, and (perhaps) the law relating to slander: no such heading (to enlarge no farther) as that of wrongs to property. Then we have an enumeration of some half dozen crimes and their punishment; and then a fresh passage to the constitution of courts of justice, and the power of constables and officers of the peace. Then we pass to the head of property in land; under which we have in the first rank, special occupancy; next (without any previous division of estates) the law of descent. Next, the whole doctrine of tenures is introduced as an accessory, the law of escheat, viewed as a mode of acquiring land, being the principal subject; and then, under the title of conveyance, we get some general notions of the divisions of estates according to our law, beginning with leases for years, and passing on through estates tail to fee-simple; and, finally, without any attempt at defining the difference between real and personal property, except obiter and at the very end of the treatise, in an enumeration of the things with which an executor may meddle, we have the ways in which property in goods may be acquired. Surely Bacon could never, at least after his school-boy days, - have composed a treatise on such a plan. 3. The historical or antiquarian views which occur are distinctly opposed to Bacon's authentic opinions. This treatise attributes all our laws and constitution to the Conqueror; and herein especially, 1st, the institution of constables, and 2ndly, of Shires, County Courts, Courts Leet, &c., all of which are alleged to have been erected subsequently to, and in ease of, the King's Bench; which latter court, moreover, is supposed itself to have first come into existence when the Conqueror grew tired of doing justice in his own person. Now not to dwell on the absurdity of all this, Bacon, when Attorney General, and again after his fall in his 66 propositions for a Digest of the Laws, asserts that they are as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs; and in the Answers to the questions proposed by Sir Alexander Hay, he makes the institution of constables and division of the territory into Shires, &c., of Saxon or earlier origin. While rejecting this treatise as Bacon's on these grounds, I may offer the suggestion that one of his commonplace books may have furnished some of the materials for it, and that this may account for the whole being put upon him. The text here given is mainly from the two MSS. above mentioned; and where they differ I have generally preferred the Harl. MS. which seems to me the more genuine the Sloane MS. is obviously corrected in its antiquarian paragraph, and I think not by the author. But I have noted some of the more important variations of the text, so that the reader may judge for himself. . 373 . 374 Appeal of murder given to the next of kin not Felo de se, felony by mischance, deodand Cutting out of tongues, and putting out of eyes, made felony . 374 The office of the constable Two high constables for every hundred, and one petty constable for every village The King's Bench first instituted, and in what matters they anciently had jurisdiction The court of Marshalsea erected, and its jurisdiction within twelve miles of the chief tunnel of the king, which is the full extent of the verge 375 376 376 Sheriff's Tourn instituted upon the division of England into counties: the charge of this court was committed to the earl of the same county Subdivision of the county courts into hundreds The charge of the county taken from the earls, and committed yearly to such persons as it pleased the king 377 . 377 . 378 378 .378 . 378 . 379 The sheriff is judge of all hundred courts not given away Hundred courts, to whom first granted Page 379 . 379 380 380-1 Lord of the hundred to appoint two high constables The power of the justice of peace to fine the offenders to the crown, and not to recompense the party grieved Authority of the justices of the peace, through whom ran all the county services to the crown Beating, killing, burning of houses Attachments for surety of the peace Recognizances of the peace delivered by the justices at their Quarter-sessions held by the justices of peace . 381 381 382 382 . 382 . 383 383 . 383 383 384 The authority of justices of the peace out of their sessions Judges of assize came in place of the ancient judges in eyre, about the time of R. II. England divided into six circuits, and two learned men in the laws assigned by the king's commission to ride twice a year through those shires allotted to that circuit, for the trial of private titles to lands and goods, and all treasons and felonies, which the county courts meddle not in. 384-5 The authority of the judges in eyre translated by Parliament to justices of assize The authority of the justices of assizes much lessened by the Court of Common Pleas, erected in Henry III. time The justices of assize have at this day five commissions by which they sit, viz. 1. Oyer and Terminer. 2. Gaol Delivery. 3. To take assizes. 4. To take Nisi Prius. 5. Of the peace Book allowed to clergy for the scarcity of them to be disposed in religious houses The course the judges hold in their circuits in the execution of their commission concerning the taking of Nisi Prius 390–1 The justices of the peace and the sheriff are to attend the judges in their county |