equally ready at hand in the Civil Law. There was no lack of men fit to form a good 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 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 Juris, 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 cominon 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 by evidence of reason," and in fact "to correct the law."2 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 Vol. I. p. 822. 2 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. 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' which he made 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 "July 25. 1608. Continuatur series librorum cartaceorum. Libri professoris: vt. of the Laws of England. 1. Regulæ Juris cum limitationibus et casibus. mine own, and not a note-book. This is merely a composition of 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 common-place 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. 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). 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 writers. Some pages, it will be seen, have been thus taken and adapted, whether by Bacon or another, from a treatise by Sir John Doderidge, and I think the case must be the same with other fragments. Besides the works here printed there are some others extant. Mr. Spedding found in the British Museum, Harl. MSS. 7017. No. 43., a MS. in Bacon's hand on the Prerogative. It appeared to me to be merely a common-place book after the fashion of the Cases of Treason, &c., setting down the ordinary Common Law Prerogatives, and not to contain anything interesting as regards Bacon's opinions on the Constitution. Mr. Spedding tells me there is in the Cambridge University Library an argument in Law French on the Sutton Hospital Case.' The questions in controversy appearing to be of no permanent interest, and Bacon having argued on the losing side with (if Coke is to be trusted) a very weak case, it was not thought worth while to include it in the collection. I have not myself seen it. There is also in the Stowe Collection, now the property of Lord Ashburnham, a Reading on Stat. West. 2nd C. 5. On Advowsons. Bacon's first reading at Gray's Inn was in 1587, not apparently in his regular term, but in the place of a defaulter. If this be the Reading of that period it would be the earliest extant of his legal works. I should have been glad to have been able to see and, if of sufficient importance, to publish it; and I tried, through several channels of communication and by personal application, to obtain access to the collection; but his Lordship's rule requiring an introduction by a personal acquaintance of his own and of the applicant, being strictly enforced, has proved a bar. In the same collection is a MS. of the Reading on the Statute of Uses, the character and completeness of which I have, for the same reason, had no opportunity of ascertaining. There is also a MS. of the Argument in Brownlow and Mitchell. It was from the printed catalogue of the Stowe MSS. that Mr. Spedding first learnt that this Argument was extant, and it was only after our failure to obtain access to it that we discovered it was already in print,-whether from this source or not we have no means of judging. D. D. HEATH. |