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words he was one of the few common lawyers of his day who had studied law scientifically. This gave him that power, which we observe in all his writings, of laying down the broad principle applicable to the case in hand, and of grouping his proofs and instances under it in an orderly way. It also gave him the power of making a critical estimate of the strong and weak points of the laws of England. He had a strong admiration for them. They commend themselves best," he wrote, "to them that understand them; and your Majesty's Chief Justice of your Bench hath in his writings magnified them not without cause. Certainly they are wise, they are just and moderate laws; they give to God, they give to Cæsar, they give to the subjects that which appertaineth." But his admiration had nothing in it. of Coke's idolatry. It was the admiration of one who could see their weak side, and, as we shall see,2 propose well thought out reforms.

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Bacon's view as to the theory of law in general, and the manner in which he applied that theory to the English law of his day, are to be found in the ninety-seven aphorisms contained in the third chapter of the eighth Book of the De Augmentis. His object, he tells us, was "to set down . . . what may be called certain laws of laws' whereby we may derive information as to the good or ill set down and determined in every law.' The following summary will show how he fulfilled this object.

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In civil society either law or force prevails; and law he later defines as "a commanding rule." 5 The reason for the existence of private law is public utility. The efficacy of private law depends ultimately upon the power of government, by the authority of which the magistrates, who protect private rights, and some others a diversity, and many times an opposition; such grounds as are common to our law and theirs I have not affected to disguise into other words than the civilians use, to the end they might seem invented by me, and not borrowed or translated from them: no, but I took hold of it as a matter of great authority and majesty, to see and consider the concordance between the laws penned and as it were dicted verbatim by the same reason. On the other side the diversities between the civil Roman rules of law and ours . . I have not omitted to set down with the

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1 A Proposition to his Majesty . . . touching the Compiling and Amending of the Laws of England, Spedding, Letters and Life vi 63.

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2 Below 485-489. Aph. 6" Leges enim mirum in modum, et maximo intervallo, inter se differunt; ut aliæ excellant, aliæ mediocriter se habeant, aliae prorsus vitiosæ sint. Dictabimus igibur pro judicii nostri modulo quasdam tanquam legum leges; ex quibus informatio peti possit, quid in singulis legibus bene aut perperam positum aut constitutum sit." The translations here and elsewhere are Spedding's.

4 Aph. I.

5 Aph. 83- -“Lex enim nil aliud quam regula imperans."

Aph. 2" Firmamentum juris privati tale est. Qui injuriam facit, re utilitatem aut voluptatem capit, exemplo periculum. Cæteri utilitatis aut voluptatis illius participes non sunt, sed exemplum ad se pertinere putant. Itaque facile coeunt in consensum ut caveatur sibi per leges: ne injuriæ per vices ad singulos redeant."

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are maintained.1 The maintenance of public law, then, is essential to the maintenance of private rights; and further, "it extends also to religion, arms, discipline, ornaments, wealth, and in a word, to everything that regards the well-being of a state.” 2 The laws are thus the sinews and the instruments for the maintenance of a peaceful, a prosperous, and a civilized life.3 But law may prevail, and yet there may be much injustice"There is a kind of force which pretends law, and a kind of law which savours of force rather than equity.' If law is to attain its objects it must have certain qualities. It must be "certain in meaning, just in precept, convenient in execution, agreeable to the form of government, and productive of virtue in those that live under it." 5 Bacon then proceeds to the consideration of these various qualities of a good law; but in fact, he deals only with the first-its certainty. The uncertainty of law, may, he says, arise from one of two causes. Either there is no law dealing with the question, or the law dealing with it is obscure." He first considers various methods by which the absence of law dealing with particular cases can be remedied, such as reference to similar cases,' extensive interpretation, precedents, equity criminal or civil,10 retrospective statutes.11 He then passes on to

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various causes for the obscurity of the law. This arises either from the excessive accumulation of laws, from bad draftsmanship, from faulty methods of interpretation or exposition, or from contradictory and uncertain decisions given by the courts.12

It is clear that in this last part he has had specially in view the defects in English law. In many places he adapted large parts of the paper which he had previously written to James I. on the compiling and amendment of the laws of England. With this aspect of his work I shall deal later. 13 Here we must note

2 Aph 4.

1 Aph. 3. 3 Aph. 5-" Finis enim et scopus, quem leges intueri, atque ad quem jussiones et sanctiones suas dirigere debent, non alius est quam ut cives feliciter degant: id fiet, si pietate et religione recte instituti; moribus honesti; armis adversus hostes externos tuti; legum auxilio adversus seditiones et privatas injurias muniti; imperio et magistratibus obsequentes; copiis et opibus locupletes et florentes fuerint. Harum autem rerum instrumenta et nervi sunt leges."

Aph. 1-Est autem et vis quædam legem simulans; et lex nonnulla magis vim sapiens quam æquitatem juris."

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Aph. 7" Lex bona censeri possit, quæ sit intimatione certa, præcepto justa, executione commoda; cum forma politiæ congrua, et generans virtutem in subditis." 6 Aph. 9-" Duplex legum incertitudo; altera, ubi lex nulla præscribitur; altera, ubi ambigua et obscura.

7 Aph. II, 12.

10 Aph. 32-46.

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8 Aph. 13-20.
Aph. 47 51.

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9 Aph. 21-31.

12 Aph. 52-" Obscuritas legum a quatuor rebus originem ducit: vel ab accumu. latione legum nimia, præsertim admixtis obsoletis; vel a descriptione earum ambigua, aut minus perspicua et dilucida; vel a modis enucleandi juris neglectis, aut non bene institutis; vel denique a contradictione et vacillatione judiciorum."

13 Below 485-489.

in this, as well as in the rest of the work, Bacon lays down. universal propositions. They may have been inspired largely by his knowledge of English law; but they are none the less applicable to any civilized body of law. What he has to say as to methods of interpreting statutes, the use of precedents, the question of retrospective laws, the compilation of codes and digests, the necessary books for the understanding of the law, the sphere of lectures and exercises in law, modes of preventing inconsistent judgments, is valuable to the students of all systems of law. And they are all full of the useful wisdom of the thinker who is also a practitioner. Let us take two out of many illustrations. Here is a warning specially applicable to lawyers who work with a system of case law:- Consequence does not draw consequence, but the extension should stop within the next cases; otherwise there will be a gradual lapse into dissimilar cases, and sharpness of wit will have greater power than authority of law." 1 Here is a correct appreciation of the effect which the discovery of new documentary evidence, in the shape of old records, should have on established legal doctrine, as distinct from legal history: "Examples which have lain as it were buried in desks and archives and have openly passed into oblivion, deserve less (authority). For examples, like waters, are most wholesome in a running stream." 2

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This small section of the De Augmentis shows that Bacon was one of the earliest common lawyers to appreciate the need for some sort of general jurisprudence; and that he was certainly the earliest to show by his precepts how it might be used to improve an existing body of law, and by his example how greatly it facilitated the understanding and exposition of the law. His earlier career had shown how greatly this scientific study of the law had helped him as a reader, as a barrister, and as a writer of books about law. His career as lord keeper and lord chancellor was to show how much it enabled him to do in a short time for the development of the nascent system of equity.

1 De Augmentis, Bk. VIII. c. 3 Aph. 16—“ Consequentiæ non est consequentia ; sed sisti debet extensio intra casus proximos: alioqui labetur paulatim ad dissimilia, et magis valebunt acumina ingeniorum, quam auctoritates legum."

2" (Exempla) quæ vero in scriniis et archivis manserunt tanquam sepulta, et palam in oblivionem transierunt, minus (auctoritatis). Exempla enim, sicut aquæ, in profluente sanissima," ibid Aph. 28; the application of this principle might perhaps afford some solution to Lord Sumner's query in Palgrave Brown & Son v. S.S. Turid [1922] A. C. at p. 413 as to "what would happen, if some learned and industrious person compiled from the records and cases lodged by the parties in your Lordships' House, and the transcripts of your Lordship's opinions preserved in the Parliament Office, a selection of Unnoticed House of Lords Cases.'

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3 We have seen, above 16-19, that this need was better appreciated by the civilians; for other attempts in this direction made by the common lawyers see below 397-401.

The Chancellor.

Bacon's decisions as chancellor are still among the unpublished records of the court, and so we only have very scrappy and very unsatisfactory notes of them.1 It would no doubt be interesting to see the actual records of these cases. We should be able to see the directions in which Bacon developed equity, we might perhaps discover that he had originated or anticipated some of its later doctrines. But with him, as with the other chancellors of this period, in the absence of reports, we shall never be able to discover how "he directed the evidence, moderated length repetition or impertinency of speech, recapitulated selected and collated the material points of that which had been said, gave the rule or sentence:" nor how he "commended and graced an advocate when the cause was well handled and fair pleaded; how he reprehended when there appeared cunning counsel, gross neglect, slight information, indiscreet pressing, or an over-bold defence." 2 We do, however, know from his own writings a good deal more of his achievement than we know of the achievement of any other chancellor before the beginning of the regular reports.

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In the first place, he succeeded in restoring a certain amount of harmony between the common law and the Chancery. No doubt the victory of the Chancery, to which he had largely contributed, had left the common lawyers rather sore. In the speech which he made on taking his seat in Chancery he promised that the issue of injunctions should be carefully regulated; and further, he imitated the example of Sir Thomas More, and invited the judges to dinner to discuss the matter. After dinner, he pointed out that the late controversy had been largely personal; that for the future, "as I would not suffer any the least diminution or derogation from the ancient and due power of the Chancery, so if anything should be brought to them at any time touching the proceedings of the Chancery which did seem to them exorbitant or inordinate, that they should freely and friendly acquaint me with it, and we should soon agree; or if not, we had a master that could easily both discern and rule." At which he says, "I did see cheer and comfort in their faces, as if it were a new world." 5 He was as good as his word. In his orders he carefully provided against the

1 Mainly in Tothill; for this book see below 276, 277.

2 Essays of Judicature.

Spedding, Letters and Life vi 182-186: apparently he never printed a copy, and the version we have is probably "drawn up by Bacon from recollection of what he had said," ibid 182.

4 Above 238 n. 4.

5 Spedding, Letters and Life vi 198.

abuse by litigants of the power to get injunctions;1 and it is clear from the reports that his measures had some success, since, during the rest of this period, the Chancery and common law courts ceased to quarrel. And so it may be fairly said that he restored the old relations between the common law courts and Chancery, which was necessary for the efficient working of both sets of tribunals.

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In the second place, his speech on taking his seat in Chancery showed that he knew at least some of the weaknesses of the court, and was prepared to reform them. We have seen that he promised to regulate carefully the issue of injunctions. He went on to say that he did not mean to rely too much upon the reports of the masters; that the final decision should always rest with himself; and that the opinions of the judges, when they were called in to advise him, should always be respected. To the suitor he promised a speedy decision after the hearing of the case, and to sit long that the arrears of causes might be disposed of.G At the same time he let it be known that he would never make an order till he was satisfied of its justice. There was to be no more cursory making of orders on ex parte applicationsa course which led to the spinning out of cases by the necessity for the making of further orders. Further, he promised that all former orders directed to diminish the expense of a suit should be maintained. He would see to it that pleadings and examination were not prolix, that copies should be properly executed, that no new fees should be exacted, that plaintiffs who could not prove their bills should be made to pay larger costs.

Thirdly, he made good his promises by issuing a consolidated

1 Orders in Chancery nos. 20-28; cp. De Augmentis Bk. viii c. iii Aph. 42-46. 2"The fourth point is concerning the communicating of the authority of the Chancellor too far; and making upon the matter too many Chancellors, by relying too much upon reports of the masters of Chancery as concludent," Letters and Life vi 187.

"I will make no binding order upon any report of one of the masters, without giving a seven nights day at the least to shew cause against the report. And I must utterly discontinue the making of any hypothetical or conditional order; that if a master of the Chancery do certify thus and thus, that then it is so ordered without further motion," ibid.

4 Ibid.

5"I am resolved that my decree shall come speedily (if not instantly) after the hearing, and my signed decree speedily upon my decree pronounced," ibid 189. 6"I shall add the afternoon to the forenoon, and some fortnight of the vacation to the term, for the expediting and clearing of the causes of the court," ibid 190.

7"I have seen an affectation of dispatch turn utterly to delay and length: for the manner of it is to take the tale out of the counsellor at the bar his mouth, and to give a cursory order, nothing tending or conducing to the end of the business and this is that which makes sixty, eighty, an hundred orders in a cause, to and fro, begetting one another; and like Penelope's web, doing and undoing," ibid 190-191.

8 Ibid 191-192.

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