he may perhaps, when he is awake, find not only his injunction dissolved, but his cause dismissed." The caution of an anxious judge, in avoiding hasty decision, may be seen in the following anecdote respecting Chancellor D'Aguesseau : "The only fault imputed to D'Aguesseau was dilatoriness of decision. We should hear his own apology. The general feeling of the public on this head, was once respectfully communicated to him by his son : My child,' said the Chancellor, when you shall have read what I have read, seen what I have seen, and heard what I have heard, you will feel, that if on any subject you know much, there may be also much that you do not know, and that something, even of what you know, may not at the moment be in your recollection. You will then, too, be sensible of the mischievous and often ruinous consequences of even a small error in a decision; and conscience, I trust, will then make you as doubtful, as timid, and consequently as dilatory as I am accused of being.' وو The nature of dispatch, as it is called, in the administration of justice, may be seen in the following translation by my dear friend, Samuel Tayler Coleridge: The way of ancient ordinance, though it winds, Is yet no devious way. Straight forward goes The lightning's path, and straight the fearful path Of the cannon-ball. Direct it flies and rapid, Shattering that it may reach, and shattering what it reaches. My son! the road the human being travels, That on which blessing comes and goes, doth follow there exists An higher than the warrior's excellence. WALLENSTEIN. Of Judicature. The next essay, which contains observations upon the administration or improvement of justice, is his Essay on Judicature, which will be found in vol. i. page 179. It contains most valuable observations: 1st. in general. 2nd. In particular. In a well I must content myself with referring to the essay, and the following Observations in the Edinburgh Review upon Bacon's Essay on Judicature, April, 1830. "The bench of Scotland contains bright-names; men, under whom the duty of carrying judicial reformation into practice has as favourable a prospect as devotion to the cause, and great legal accomplishment, can ever give it. The bar, besides professional learning and talent, is as splendidly adorned by general literature and by public virtue as any bar upon earth. Criticisms have been made on the manner of both. We cannot venture to say how far either the censure or the praise of these criticisms is just. Probably both, at times. They must not be judged of merely by a standard taken from the accidental fashion or custom of any other place, but by their approximation to, or recession from, the things that form the universal excellences of the judicial manner. regulated place of justice, the court room is orderly and noiseless. The bench attends; or appears to do so. When it does not, the failure neither proceeds from indifference nor from impatience. There is much consultation before judgment; little conversation during debate. The judges recollect, that the vices of counsel must always be generated by themselves, because they are only practised from their supposed influence with the bench, and from seeing that the opposite virtues fail. The bar venerates good taste, the only corrective of the defects naturally connected with the exercise of that profession. It therefore grudges the laurels that are sometimes bestowed by the ignorant on certain vulgar qualities, such as pertinacity or vehemence, which, though they may accompany success, can never, in a right court, be the cause of it. On ordinary occasions, when there is no call for a higher flight, it appreciates brevity, calm ness, and sense; virtues so essential amidst the bustle and distraction of legal war, that their presence renders even honesty more powerful, while their absence makes learning useless. To both bench and bar, in Scotland and everywhere else, we strongly recommend the attentive and repeated study of Bacon's little Essay (scarcely three pages) on Judicature. It is a discourse which ought not merely to be suspended over the gate, but engraven on the heart, of every court of justice." There are some observations, in his Essay upon Innovations, applicable to the improvement of law as to all improvements. Want of Collegiate Education of Statesmen. Lord Bacon seems to have been deeply impressed with the conviction, that the want of a collegiate education of statesmen was the fundamental cause of the little progress that was made in sound legislation. See ante, Note K. There is an observation of the same tendency by Lord Bolingbrook, who says: "I might instance, in other professions, the obligations men lie under of applying themselves to certain parts of history, and I can hardly forbear doing it in that of the law; in its nature the noblest and most beneficial to mankind, in its abuse and abasement the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety-nine in an hundred at least, to use some of Tully's words, nisi leguleius quidam cautus, et acutus praeco actionum, cantor formularum, auceps syllabarum. But there have been lawyers that were orators, philosophers, historians: there have been Bacons and Clarendons, my lord. There will be none such any more, till in some better age, true ambition or the love of fame prevails over avarice; and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the vantage ground,' so my lord Bacon calls it, of science; instead of grovelling all their lives below, in a mean but gainful application to all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions: and whenever it happens, one of the vantage grounds to which men must climb, is metaphysical, and the other historical knowledge. They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws: and they must trace the laws of particular states, especially of their own, from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced." Increased importance in the present Time of a Collegiate Education of Statesmen. It may, perhaps, be deemed important to consider whether, in the present times, when knowledge is making such rapid progress through all the middle classes of society, these lamentations expressed by Lord Bacon and Milton are not most peculiarly deserving consideration; whether, when the middle classes of society are rising, they can be restrained or distance be preserved, unless there is a proportional elevation in the higher classes? Opposition to Improvement by Politicians. Lord Bacon, when enumerating the objections by politicians to the advancement of learning, says, "It is objected by politicians that learning doth mar and pervert men's dispositions for matter of government and policy; which the study of arts makes either too curious by variety of reading; or too peremptory by the strict rigour of rules; or too overweening, by reason of the greatness of examples; or too incompatible with the times, by reason of the dissimilitude of examples; or at least it doth divert and alienate men's minds from business and action, instilling into them a love of leisure and privateness." He then enters minutely into an examination of these objections. See vol. ii. page 16. Objections by Lawyers to Improvement of the Law. In his proposition touching the compiling and amendment of the laws of England, he states five objections which will be made by lawyers to improvement of the law. They are as follows: 1. Reform is needless. 2. It is an innovation. 3. More harm than good will be done. 4. It will be better to codify. 5. It will compel lawyers to study new law. These objections he separately and minutely examined. See vol. v. p. 343. Duty of Men in contemplative and active Life to unite in Improvement. The fourth book of the Treatise "De Augmentis" thus opens: "Si quis me, Rex optime, ob aliquid eorum quæ proposui, aut deinceps proponam, impetat aut vulneret (præterquàm quòd intra præsidia Majestatis tuæ tutus esse debeam), sciat is se contra morem et disciplinam militiæ facere. Ego enim, buccinator tantùm, pugnam non ineo; unus fortassè ex iis de quibus Homerus, Χαίρετε κηρυκες, Διος αγγελοι ηδε και ανδρων : hi enim inter hostes, etiam infensissimos et acerbissimos, ultrò citroque inviolati ubique commeabant. Neque verò nostra buccina homines advocat et excitat, ut se mutuò contradictionibus proscindant, aut secum ipsi prælientur et digladientur; sed potiùs ut pace inter ipsos factâ conjunctis viribus se adversus naturam rerum comparent, ejusque edita et munita capiant et expugnent, atque fines imperii humani (quantum Deus Opt. Max. pro bonitate suâ indulserit) proferant." And in some part of his works, but I do not immediately recollect where, he says, that "will indeed dignify and exalt knowledge, if contemplation and action may be more nearly and strongly conjoined and united together, than they have been a conjunction like unto that of the two highest planets, Saturn the planet of rest and contemplation, and Jupiter the planet of civil society and action." Duty of Lawyers to assist in Improvement of the Law. In his proposition for a compilation of the law, he says, "Your Majesty, of your favour having made me privy counsellor; and continuing me in the place of your attorney-general, (which is more than was these hundred years before), I do not understand it to be, that by putting off the dealing in causes between party and party, I should keep holy-day the more: but that I should dedicate my time to your service, with less distraction. Wherefore in this plentiful accession of time which I have now gained, I take it to be my duty; not only to speed your commandments and the business of my place, but to meditate, and to excogitate of myself, wherein I may best by my travels, derive your virtues to the good of your people, and return their thanks and increase of love to you again. And after I had thought of many things, I could find in my judgment, none more proper for your majesty as a master, nor for me as a workman, than the reducing and recompiling of the laws of England." To the same effect, in his Preface to the Elements of the Common Law, he says: "I hold every man a debtor to his profession; from the which, as men of course do seek to receive countenance and profit, so ought they of duty to endeavour themselves, by way of amends, to be a help and ornament thereunto. This is performed in some degree by the honest and liberal practice of a profession, when men shall carry a respect not to descend into any course that is corrupt and unworthy thereof, and preserve themselves free from the abuses wherewith the same profession is noted to be infected; but much more is this performed if a man be able to visit and strengthen the roots and foundation of the science itself; thereby not only gracing it in reputation and dignity, but also amplifying it in perfection and substance. Having, therefore, from the beginning, come to the study of the laws of this realm, with a desire no less, if I could attain unto it, that the same laws should be the better for my industry, than that myself should be the better for the knowledge of them; I do not find that, by mine own travel, without the help of authority, I can in any kind confer so profitable an addition unto that science, as by collecting the rules and grounds dispersed throughout the body of the same laws." The same grateful feeling is expressed by Sir Edward Coke, who says, "if this or any other of my works may, in any sort, by the goodness of Almighty God, who hath enabled me hereunto, tend to some discharge of that great obligation of duty wherein I am bound to my profession, I shall reap some fruits from the tree of life, and I shall receive sufficient compensation for all my labours." Merit of legal Improvement. In his Proposition for a Compilation of the Law,. he says, "Your majesty is a king blessed with posterity; and these kings sort best with acts of perpetuity, when they do not leave them instead of children, but transmit both line and merit to future generations. You are a great master in justice and judicature, and it were pity that the fruit of that virtue should die with you. Your majesty also reigneth in learned times; the more in regard of your own perfections and patronage of learning; and it hath been the mishap of works of this nature, that the less learned time hath wrought upon the more learned; which now will not be so. As for my self the law is my profession, to which I am a debtor. Some little helps I may have of other learning, which may give form to matter; and your majesty hath set ne in an eminent place, whereby in a work, which must be the work of many, I may the better have coadjutors. For the dignity of the work, I know scarcely where to find the like; for surely that scale, and those degrees of sovereign honour are true, and rightly marshalled. First, the founders of estates, then the lawgivers, then the deliverers and saviours, after long calamities; then the fathers of their countries, which are just and prudent princes; and lastly conquerors, which honour is not to be received amongst the rest; except it be where there is an addition of more country and territory to a better government than that was of the conquered. Dedication to Elements of the Common Law. "To her sacred Majesty. I do here most humbly present and dedicate to your sacred majesty a sheaf and cluster of fruit of the good and favourable season, which, by the influence of your happy government, we enjoy; for if it be true that silent leges inter arma, it is also as true, that your majesty is, in a double respect, the life of our laws, once, because without your authority they are bat litera mortua; and again, because you are the life of our peace, without which laws are put to silence. And as the vital spirits do not only maintain and move the body, but also contend to perfect and renew it, so your sacred majesty, who is anima legis, doth not only give unto your laws force and vigour, but also hath been careful of their amendment and reforming; wherein your majesty's proceeding may be compared, as in that part of your government, for if your government be considered in all the parts, it is incomparable, with the former doings of the most excellent princes that ever have reigned, whose study altogether hath been always to adorn and honour times of peace with the amendment of the policy of their laws. Of this proceeding in Augustus Cæsar the testimony yet remains. Pace data terris, animum ad civilia vertit Jura suum; legesque tulit justissimus auctor. Hence was collected the difference between gesta in armis and acta in toga, whereof he disputeth thus: Ecquid est, quod tam propriè dici potest actum ejus qui togatus in republica cum potestate imperioque versatus sit quam lex? quare acta Gracchi? leges Sempronii proferantur. Quære Sylla: Cornelia? Quid? Cn. Pom. tertius consulatus in quibus actis consistet? nempe in legibus: à Cæsare ipso si quæreres quidnam egisset in urbe, et in toga : * leges multas se responderet, et præclaras tulisse. The same desire long after did spring in the emperor Justinian, being rightly called ultimus imperatorum Romanorum, who, having peace in the heart of his empire, and making his wars prosperously in the remote places of his dominions by his lieutenants, chose it for a monument and honour of his government, to revise the Roman laws, from infinite volumes and much repugnancy, into one competent and uniform corps of law; of which matter himself doth speak gloriously, and yet aptly calling it, proprium et sanctissimum templum justitiæ consecratum a work of great excellency indeed, as may well appear, in that France, Italy, and Spain, which have long since shaken off the yoke of the Roman empire, do yet nevertheless continue to use the policy of that law: but more excellent had the work been, save that the more ignorant and obscure time undertook to correct the more learned and flourishing time. To conclude with the domestical example of one of your majesty's royal ancestors: King Edward I. your majesty's famous progenitor, and the principal lawgiver of our nation, after he had in his younger years given himself satisfaction in the glory of arms, by the enterprise of the Holy Land, and having inward peace, otherwise than for the invasions which himself made upon Wales and Scotland, parts far distant from the centre of the realm, he bent himself to endow his state with sundry notable and fundamental laws, upon which the government hath ever since principally rested. Of this example, and others the like, two reasons may be given; the one, because that kings, which, either by the moderation of their natures, or the maturity of their years and judgment, do temper their magnanimity with justice, do wisely consider and conceive of the exploits of ambitious wars, as actions rather great than good; and so, distasted with that course of winning honour, they convert their minds rather to do somewhat for the better uniting of human society, than for the dissolving or disturbing of the same. Another reason is, because times of peace, for the most part drawing with them abundance of wealth and finesse of cunning, do draw also, in further consequence, multitude of suits and controversies, and abuses of laws by evasions and devices; which inconveniences in such time growing more general, do more instantly solicit for the amendment of laws to restrain and repress them. Your majesty's reign having been blest from the highest with inward peace, and falling into an age wherein, if science be increased, conscience is rather decayed; and if men's wits be great their wills be greater; and wherein also laws are multiplied in number, and slackened in vigour and execution; it was not possible but that not only suits in law should multiply and increase, whereof a great part are always unjust, but also that all the indirect courses and practices to abuse law and justice should have been much attempted and put in ure, which no doubt had bred greater enormities, had they not, by the royal policy of your majesty, by the censure and foresight of your council table and starchamber, and by the gravity and integrity of your benches, been repressed and restrained for it may be truly observed, that, as concerning frauds in contracts, bargains, and assurances, and abuses of laws by delays, covins, vexations, and corruptions in informers, jurors, ministers of justice, and the like, there have been sundry excellent statutes made in your majesty's time, more in number, and more politic in provision, than in any your majesty's predecessors' times." In other parts of his works he states his opinions as to the persons who are the best legal reformers, viz. S1. Philosophers. Philosophers not good Improvers. 2. Lawyers. Politicians best Improvers. In his tract on Justitia Universalis, in the treatise De Augmentis, vol. ix. he says: "Restat jam desideratum alterum ex iis, quæ posuimus, duobus ; nimirùm, de Justitia Universali, sive de Fontibus Juris. Qui de legibus scripserunt, omnes vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa dictu pulcra, sed ab usu remota. Jurisconsulti autem, suæ quisque patriæ legum (vel etiam Romanarum, aut pontificiarum) placitis obnoxii et addicti, judicio sincero non utuntur, sed tanquam e vinculis sermocinantur. Certè cognitio ista ad viros civiles propriè spectat; qui optimè nôrunt quid ferat societas humana, quid salus populi, quid æquitas naturalis, quid gentium mores, quid rerumpublicarum formæ diversæ ; ideòque possint de legibus ex principiis et præceptis, tam æquitatis naturalis quâm politices, decernere. Quamobrem id nunc agatur, ut fontes justitiæ et utilitatis publicæ petantur, et in singulis juris partibus character quidam et idea justi exhibeatur, ad quam particularium regnorum et rerumpublicarum leges probare, atque indè emendationem moliri quisque, cui hoc cordi erit et curæ, possit. Hujus igitur rei, more nostro, exemplum in uno titulo proponemus." |