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I HAVE already observed that it is difficult to account for the shape in which this treatise comes to us, or to fix its date.
The difficulty arises from the Preface, which dwells at length on the reasons which have influenced Bacon to retain Law French as the language of his expositions; whereas what we have is in English, and I think in good Baconian style. It is certain the Preface and Text, as they stand, were never intended to be published together; and the question is, as to the relation between them.
The first edition was in 1630, with the second edition of the Use of the Law: a common title, The Elements of the Common Law, being prefixed, as well as a separate one to each part. The Text agrees pretty closely with that of Harl. MSS. 1783. and with a MS. at Lincoln's Inn, and is reprinted in Mr. Montagu's edition. There are two other MSS. in the Harleian Collection, Nos. 856. and 6688., generally representing the text of the common edition.
The Lincoln's Inn MS. contains only the first paragraph of the Preface, and the 25th Rule is inserted before the 23rd, as it is also in the first edition. The last three Rules are added after a "finis," and in a different hand, in Harl. MSS. 1783.; and though they are all in the index of Harl. MSS. 6688. the text ends with the heading of No. 23. In other respects the differences in these texts are merely verbal and throw no light on the subject I am discussing.'
But besides these, there is a MS. in the University Library at Cambridge, bearing the name and date "Thos. Corie, Hosp. Graii, 1630," which differs so widely from the others that I
'In Harl. MSS. 6688. there are one or two additional examples given in very slip-slop Anglo-French, which I have not noticed as they may as well be a transcriber's addition as Bacon's own,
have thought it advisable to give the principal variations in foot-notes, as they show something of the history of the work.
The dedication in the other MSS. and editions bears date Jany or Jan 8th, 1596 (i. e. 1596-7). In the Camb. MS. it ismerely 1596, i. e. any time between March 25th 1596, and · March 24th 1597; and it seems clear, as I have pointed out in a note, that it was an earlier draft, and that shortly after its composition may we not say after its presentation? - Bacon had the interview or communication with the Queen to which he alludes in the later draft.
In the Camb. MS. there are only 20 Rules, instead of 25; they stand in a different order 1; and there are in many Rules fewer examples, as well as considerable variations in the phraseology and sense.
My own impression is that the shorter text has been expanded into, and not abridged from, the longer. But it is of more importance to observe that whereas it is clear that Bacon, while at work on either text, had before him cases adjudged as late as 37° Eliz. i. e. 1594 and 1595, I have failed to find any indication in the marginal references, which so abound in some of the MSS. and editions, of any use of later cases. If this be the fact, it seems to me quite conclusive that these English texts belong entirely to a period of Bacon's life contemporary with, or prior to, the date of his Dedication, and are not chance fragments from the larger Collection at which he tells us, when Attorney General, he had recently been and hoped to continue working.3
The Preface contains no internal marks to fix its date. Besides the omission of the main part of it in the Lincoln's Inn MS. it may be observed that in the Camb. MS. it appears to be designed to introduce exactly one hundred Rules, instead of the 66 some few" of the common text.
On the whole, I think the probable solution is, that at an early date in Bacon's law studies he conceived the thought of such a treatise De Regulis Juris as he advocates in the De Augmentis and in the Proposals, and began to work at it "more
Nos. 1 to 20 in the Camb. MS. correspond with Nos. 5, 6, 7, 8, 11, 18, 15, 16, 12, 1, 2, 19, 21, 20, 22, 9, 25, 3, 23, 24, in the text.
2 See notes in the 1st and 3rd Rules. The latter may perhaps suggest that the longer text was in hand some time in 1597, or may be 1598.
Proposal for amending the Laws of England. See also the list of his law manuscripts in the Commentarius solutus.
cursorily," by noting down Maxims in Latin, and examples in the language in which he found them, not caring "to hunt after words but matter: " that after the Queen's speech and the ensning debate in the Parliament of 35° Eliz. to which he refers in the Dedication, and in which he took a part, he prepared a careful specimen of the work in English, and may have shown it, with the first Dedication, to the Queen or her ministers: that he was encouraged by " that which he was afterwards vouchsafed to understand from Her Majesty," and not only retouched his Dedication but enlarged his specimen: that he may perhaps have written the first paragraph of the Preface, as it appears in the Lincoln's Inn MS., before he altered his plan; but that before he finished the Preface he had changed his mind, and intended to publish in Law French one hundred, if he could arrange so many in a satisfactory state, or at any rate some few."
Whether the "Regula Juris, cum limitationibus et casibus," described among his MSS. in 16082 as "merely a composition of his own and not a note book," was the work we have, or an ampler collection in another form, I know no means of determining; but for the reasons above given, I conceive we have here no trace of the result of the later labours spoken of in the Proposals.
I believe the present text, formed by a free use of all the MSS. and editions, and with scarcely any purely conjectural emendation, will be found much improved. Any such conjectures I have duly noticed, and where a difficulty without a solution has occurred to me I have called attention to it. Where I have made any observation on the law, it has generally been because I found some early annotator (in the first edition or in some MS.) has already put a query, but I have not thought it generally necessary to examine doubtful points, especially with the warning Bacon himself gives us that he did not always mean to be bound by authority.
Bacon did not intend to give any references to cases. Nevertheless, some of them seem manifestly to refer to manuscript authority, giving only the year of Elizabeth's reign, and to have been about contemporaneous with the text. These I have
1 Proposal for amending the Laws. 2 Commentarius solutus.
See note in 1st Rule.
preserved. The references to the Year Books seem to have accumulated under the hands of transcribers, and very carelessly. I have expunged a great many which seemed to me clearly irrelevant, but do not feel confident that all which I have retained will be found correct or worth consulting.1 Where I found a reference to Brook or Fitzherbert, I have thought that sufficient and suppressed the Year Book; the abridgments being much the pleasanter references, and giving any reader the opportunity of further investigation if he thinks it worth while.
1 Those in brackets have not been verified.