used under the supervision of the common lawyers. Probably that supervision would have had the same effect upon the court of Chancery as it had upon the court of Admiralty and the ecclesiastical courts.1 It would have rendered it ineffective and useless. The only remedy would have been to invoke the aid of the legislature to restore or to create a court with the powers which James I.'s decree secured to the Chancery. It is not probable that a new statutory creation of that kind would have been as efficient as a court, which was already beginning to evolve a code of procedure, and, through the working of that procedure, a body of substantive rules. 3 Equity, then, was fortunate in securing its independent existence when it did. It was no less fortunate in securing, immediately afterwards, the guidance and direction of the friend and protegé of Lord Ellesmere,2 and the most philosophic lawyer in England-Francis Bacon. He consolidated the victory which Ellesmere had won, and gave to Equity a great impulse along that path of definition, and co-ordination with the rules of the common law, which, since the advent of the lawyer chancellors and until the late controversy, had been silently proceeding throughout the greater part of the sixteenth century. At the age of thirty-one Bacon told his uncle, Lord Burghley, that he had taken all knowledge to be his province; and, as with many another of his statements, what in any other man would have been empty boasting, was with him a statement of sober fact. He could and did survey the field of existing knowledge, critically diagnosing the shortcomings of past thinkers, suggesting the need for inquiry by new methods into the unexplored kingdom of nature, and presenting a vision of the vast and beneficial extensions of the bounds of human knowledge which would follow from such an inquiry. It was as a philosopher that Bacon used 1 Vol. i 556-558, 614-630. 2 Gardiner iii 79-" For some time past the late Chancellor had lost no opportunity of speaking a good word for Bacon, and had expressly declared his wish that he might be his successor. The same exalted idea of the prerogative, the same desire to limit the jurisdiction of the Courts of Common law, animated them both." 3 Spedding, Letters and Life, and his edition of Bacon's Works; Gardiner, History of England, and article in Dict. Nat. Biog.; R. W. Church, Bacon; J. E. G. de Montmorency, Francis Bacon in Great Jurists of the World (Continental Legal History Series) 144-168. 4 Bacon's view, Spedding, op. cit. vi 198, that, "The former discords and differences between the Chancery and other courts was but flesh and blood; and now the men were gone the matter was gone"-has in it a good deal of substantial truth. 5 Spedding, Letters and Life i 109-"I have taken all knowledge to be my province; and if I could purge it of two sorts of rovers, whereof the one with frivolous disputations, confutations, and verbosities, the other with blind experiments and auricular traditions and impostures, hath committed so many spoils, I hope I should bring in industrious observations, grounded conclusions, and profitable inventions and discoveries; the best state of that province." these words; and we have seen that, as a philosopher, he both summed up the intellectual changes of the sixteenth century, and foreshadowed the new intellectual developments of the future.1 But he was both a student of and a practitioner in many other branches of knowledge besides philosophy. Upon literature, history, politics, and law he left his mark. We are not here concerned with his achievements in literature and history; but we are concerned with his achievements in politics and law. Of his political career I shall speak in a later chapter.2 In this and the following chapter we must consider him as a lawyer. He was a more complete lawyer than any of his contemporaries. Not only was he an eminent practitioner in the common law; not only did he leave his mark as lord chancellor upon the development of equity; he also studied both English law and law in general scientifically and critically. The only other lawyer, in that age of distinguished lawyers, who can be compared with him, is his great rival Coke. And no two men could be more dissimilar in their mental outlook and their subsequent influence upon English law. Both, indeed, were eminent practitioners; but while Bacon is a great juridical thinker, Coke is a great common lawyer. Both left their marks upon English law; but while Bacon's influence was literary and scientific, Coke's was practical, and, owing to political causes, far greater.3 Less attention has perhaps been paid to the purely legal side of Bacon's career than to any other. But, from some points of view, it might perhaps be contended that this side of his intellectual activities is one of the most important. While "he was untimely going to bed and there musing nescio quid when he should sleep, "4 he was a student of law as well as of other matters. And the legal training and practice, which occupied the greatest part of his active career, coloured his whole mental outlook, and influenced both his political and his philosophic thought. In the political world all the great controversies of the day, which were not purely theological, turned or were thought to turn upon doubtful points of public law; so that his legal studies fitted him to discuss them effectively from the point of view which most appealed to the men of his own day. It is significant that the philosopher who taught that man is the minister and interpreter of nature, and that he can only accomplish and understand in proportion as he has actually and intelligently observed the order of nature, was a lawyer, taught * Below 489-493. 1 Vol. iv 49-52. 2 Vol. vi c. 6. 5 4 So his mother wrote in 1591, Spedding, Letters and Life i 114. 5" Homo, naturæ minister et interpres, tantum facit et intelligit, quantum, de naturæ ordine, re vel mente observaverit; nec amplius sciet aut potest," Nov. Org. Bk. i App. i. to reason out his rules and principles from diverse decisions upon the concrete facts of individual cases. In law it was only by studying these individual cases that existing rules could be understood, and new developments of these rules be established. "It is a sound precept," he wrote, "not to take the law from the rules, but to make the rule from the existing law. For the proof is not to be sought from the words of the rule, as if it were the text of law. The rule, like the magnetic needle, points at the law, but does not settle it." Bacon's conviction of the necessity for the study of the concrete facts of nature or of human life is, I think, not wholly unconnected with the fact that his legal training was in a system of case law. 2 Of Bacon as a common lawyer I shall have something to say in the next chapter. Here we must look at him chiefly from the point of view of the influence which, as chancellor, he exerted upon the growth of equity. But to understand the nature of his influence, whether as a chancellor, a common lawyer, or a statesman, we must know something of the man himself. I shall therefore at this point attempt in the first place to describe the man himself, in the second place to say something of him as a jurist, and in the third place to give some account of his achievements as chancellor. The Man. The main facts of Bacon's life are so well known that it is only necessary to give a bare summary of important dates. He was the youngest son of Nicholas Bacon, and was born January 22nd, 1561. In 1573 he entered Trinity College, Cambridge, and in 1575 he was admitted to Gray's Inn. From 1576-1579 he was attached to the French embassy. The death of his father in that year recalled him to England, and made it necessary for him to devote himself seriously to the study of the law. He was called to the bar in 1583, and, probably by the influence of his uncle,3 was admitted to the Readers' Table in 1586. He read in 1587 and 1599. In 1584 he had become a member of Parliament; and he soon made his mark in this new sphere. In 1591 he made the acquaintance of the earl of Essex, who tried in every way to push his fortunes. But he had offended the queen by his conduct in Parliament, and in her reign the only offices which he obtained were the reversion to the office of clerk to the Star Chamber, of which he did not get possession for twenty years, 1 De Augmentis, Bk. viii c. 3 Aph. 85-" Recte jubetur, ut non ex regulis jus sumatur; sed ex jure quod est, regula fiat: neque enim ex verbis regulæ petenda est probatio, ac si esset textus legis regula enim legem (ut acus nautica polos) indicat, non statuit " ; the translation in the text is Spedding's. 2 Below 485-489. 3 Gray's Inn Pension Book 72 n. I. and the office of learned counsel Extraordinary without patent or fee.1 The latter office shows that his abilities as a barrister were gaining recognition; and he was employed by the crown in connection with many state prosecutions. The part which he played in the prosecution of Essex, his friend and benefactor, has left a serious stain upon his name. It was not a creditable episode in his career; but we shall see that, under the circumstances and judged by the standpoints of his own day, there is more to be said for Bacon than posterity has sometimes imagined.2 The promotion which Bacon had so long sought he at last got from James I. In 1607 he was made Solicitor-General. At the death of Salisbury in 1612 he offered his services to the king, and proposed to desert law for politics. But he failed to get the office of Treasurer, and also that of master of the wards, for which he had also applied. In 1613 he became Attorney-General, and in that capacity took a leading part in drawing up the decree in favour of the Chancery which ended the dispute between Coke and Ellesmere. In 1616 he became a Privy Councillor, and in 1617 Lord Keeper. In 1618 he became Lord Chancellor, and was raised to the peerage with the title of Baron Verulam. In 1622 he was created Viscount St. Albans. In the same year he was impeached by the House of Commons for bribery. He confessed his guilt, and was sentenced to pay a fine of £40,000, to be imprisoned during the king's pleasure, and to be incapable of sitting in Parliament or of coming within the verge of the court. The king remitted his fine and imprisonment; and, though he made one or two efforts to take some further part in politics, he did not succeed. The remainder of his life was perforce devoted to his literary work. He died April 9th, 1626. All through this active legal and political career he had never abandoned his philosophic aims. In 1605 he published the Advancement of Learning, in 1620 the Novum Organum or Instauratio Magna, and in 1623 the nine books of the De Augmentis. The bare recital of the events of Bacon's career shows us that his character has in its elements of paradox and mystery, which must always make it a matter of speculation to historians who are brought into contact with it. And the more we know of the man, the more paradoxical and mysterious does his character appear. We admire his pregnant aphorisms, his eloquent prophecies of the results of the extension of man's kingdom over nature, his wise advice on all the political and religious and 1 This is clear from his letter to James I. in 1620-"You found me of the Learned Counsel, Extraordinary, without patent or fee; a kind of individuum vagum," Spedding, Letters and Life vii 168; for the significance of this appointment, and the subsequent development of the new class of King's Counsel, see vol. vi c. 8. 2 Below 244 and n. 3. VOL. V.-16 legal questions of the day; we admire the wonderful technique of his legal arguments and other writings about legal matters, the large wisdom of his essays, and the wonderful literary style of all the productions of his pen; we know that as an orator, he was as effective in the law courts as in Parliament. And then we find him noting down as things to be remembered and attended to, petty tricks of style1 and flattery,2 and devices to get rid of those who stood in his way; we find him, not only blind to the corruptions of the Court, but ready to take his tone from it, and to act as those around him were acting; we find that, in the face of the ideal of a just judge which he had many times portrayed, he was driven to confess himself guilty of the very offences against which he had eloquently warned others. What then is the explanation? 4 3 Bacon had great ideals. As a philosopher considering the welfare of mankind, as a statesman considering the solution of the political problems of the day, as a lawyer considering projects of law reform, he never lost sight of these ideals. His hopeful temperament never allowed him to despair of inducing his contemporaries to realise some of them, never allowed him to see that these ideals were too lofty and too farseeing for men who lived for the present hour. "A fool could not have written such a book and a wise man would not," was the popular verdict on the Instauratio Magna; 5 and even James I. who, with all his faults, was a learned man, said that like the peace of God it passed all understanding." And so, in spite of the fact that he had very many of the necessary qualities of a statesman—a "To suppress at once my speaking wth panting and labor of breath and voyce ; "To use at once upon entrance gyven of Speach though abrupt to compose and drawe in myself"; "To free myself at once from payt. of formality and complemt though with some shew of carelessness pride and rudeness," Commentarius Solutus, Spedding, Letters and Life iv 93, 94. 2" To furnish my L. of S. wth ornamts for publike speaches; "6 To make him think how he should be reverenced by a L. Chr yf I were"; "At Counsell table cheefly to make good my L. of Salsb. nocions and speaches," ibid 93; and yet he wrote to the king immediately after Salisbury's death that "he was a fit man to keep things from growing worse, but no very fit man to reduce things to be much better. He loved to have the eyes of all Israel a little too much upon himself. He was more in operatione that in opere,” ibid 280. ... 3" To have in mynd and use ye Att weakeness," ibid 50; cp. ibid 92; the Attorney was Hobart, whom Bacon succeeded when, on Bacon's advice, James made him chief justice of the Common Pleas, moving Coke to the King's Bench, below 436-438. 4 See his speeches to Hutton, Spedding, Letters and Life vi 202; and to Whitelock, ibid vii 103; and the Essay of Judicature; it should be noted in the light of subsequent events that in his speeches to these two judges he said that not only must they be pure, but that they must see that the hands of their servants were pure likewise; Spedding notes that this advice to Whitelock was given on the same day as that on which he had made an order for Lady Wharton, having only two or three days before accepted from her a purse of £100, ibid vii 103 n. 1. 5 S.P. Dom. 1619-1623 186, cxvii 37-Chamberlain to Carleton. |