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year was anonymous, and (as appears by the preface) without any suspicion of the authorship, by way of companion to a fragment of Sir John Doderidge's English Lawyer. This latter is there entitled "The Lawyers' Light: or a due direction for the study of the law, &c., by the reverend and learned professor thereof, J. D. ;" and the Use of the Law is "annexed for affinity of the subject." The Preface is also anonymous, and begins thus: "I present unto you two children, the one whereof hath an author unknown, the other a father deceased." Now Doderidge was already dead, and must have been easily recognisable as "J. D." He would seem therefore to be the author referred to in the second branch of the sentence; and hence I conclude again that the author of the other Tract was unknown.
4. Both these treatises were next published by other parties, the “Assignees of John Moore, Esqre.," separately, and in consecutive years; Doderidge's treatise, - now complete and with its new title, in 1631, with a preface stating it "was heretofore obscurely printed by an imperfect copy from a then unknown author," and was now printed "in fair light by the author's own copy written (for the most part) with his own hand: " all of which I extract to show that these publishers knew the value of an authentic pedigree when they could furnish it.
The other treatise, The Use of the Law, they published in 1630, annexed to the Maxims, then first published, but with no preface at all. There is a general title-page and also a particular one to each treatise ; and that to The Use of the Law has "by the Lord Verulam, Viscount of St. Albans." Now this cannot
have been the title actually on a MS. coming, or textually copied, from Bacon's own Collections, unless we suppose it to have been written within the last few years of Bacon's life. I do not think any one will believe, on the internal evidence, that it can be the product of his maturer years; and I therefore conclude that it was not from any MS. evidence, but on some other now unknown ground, that the Assignees of John Moore gave the authorship to Bacon.
5. It must however be said that the authorship so asserted seems to have been accepted without hesitation from that time forward, unless Archbishop Sancroft's note may be taken to imply a doubt. It is in Rawley's list at the end of the Resuscitatio, and the printed book was, with other of Bacon's then published works, given to (and now remains in) Gray's Inn Library, by Bacon's relations Nathaniel and Francis, in 1635.
The work is not mentioned in the Commentarius Solutus; but neither is the Reading on Uses: and the negative argument must not therefore be too much pressed. Still the inference seems to be that, if the work be genuine, it was either out of Bacon's hands or uncommenced in 1608.
This is, so far as I know, the whole external evidence on either side. It may be fairly summed up, I think, by saying that no MS. seems ever to have been seen wherein the work was other than anonymous; but that the second publishers, without alleging any reason, gave it out as Bacon's within four years after his death; and that this ascription has been acquiesced in.
1 Generally, I think, late copies of Bacon's authentic works continue the "Mr. F. Bacon," or "Sir F. Bacon," of the originals they are taken from.
The internal evidence is, to me, nearly decisive against it; but this must be in a great measure matter for each man's personal impression, and I can only briefly state my own.
1. As to style: I do not think it would have been possible for Bacon to have written so many consecutive pages on any subject, however dry and technical, without some turns of expression, some illustrations, some hints of a range of thought beyond his immediate subject, which would at once be felt to be characteristic of the man; and I cannot perceive any one passage of the kind. The treatise is favourably distinguished from many others of that time by freedom from pedantic affectations of classical or scriptural learning and philosophy; but if it is free from the spurious pretence, it is equally so from the thing itself.
2. The matter of the treatise may, as Mr. Maunsell says, have been very useful for young students, but the method seems to be peculiarly unlike Bacon's, and indeed childish. In any known treatise of Bacon's, whatever else may be unfinished, the preface and introduction, the laying out of the plan and conception of the work, are perfect: it is obviously the first step he took, and he often went no farther; and if such preface was lost or was in fact never written, the body of the treatise might be aphoristic, but never ill planned. Here, in a work on the use of the law, i. e. its application to private rights, we have nothing proposed for discussion but wrongs of violence to the person, the ways in which men may dispose of (and, we must infer, acquire) property, and (perhaps) the law relating to slander: no such heading (to enlarge no farther) as that of wrongs to property. Then we
have an enumeration of some half dozen crimes and their punishment; and then a fresh passage to the constitution of courts of justice, and the power of constables and officers of the peace. Then we pass to the head of property in land; under which we have in the first rank, special occupancy; next (without any previous division of estates) the law of descent. Next, the whole doctrine of tenures is introduced as an accessory, the law of escheat, viewed as a mode of acquiring land, being the principal subject; and then, under the title of conveyance, we get some general notions of the divisions of estates according to our law, beginning with leases for years, and passing on through estates tail to fee-simple; and, finally, without any attempt at defining the difference between real and personal property, except obiter and at the very end. of the treatise, in an enumeration of the things with which an executor may meddle, we have the ways in which property in goods may be acquired. Surely Bacon could never, at least after his school-boy days, - have composed a treatise on such a plan.
3. The historical or antiquarian views which occur are distinctly opposed to Bacon's authentic opinions. This treatise attributes all our laws and constitution to the Conqueror; and herein especially, 1st, the institution of constables, and 2ndly, of Shires, County Courts, Courts Leet, &c., all of which are alleged to have been erected subsequently to, and in ease of, the King's Bench; which latter court, moreover, is supposed itself to have first come into existence when the Conqueror grew tired of doing justice in his own person. Now not to dwell on the absurdity of all this, Bacon, when Attorney General, and again after his fall in his
propositions for a Digest of the Laws, asserts that "they are as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs s; and in the Answers to the questions proposed by Sir Alexander Hay, he makes the institution of constables and division of the territory into Shires, &c., of Saxon or earlier origin.
While rejecting this treatise as Bacon's on these grounds, I may offer the suggestion that one of his commonplace books may have furnished some of the materials for it, and that this may account for the whole being put upon him.
The text here given is mainly from the two MSS. above mentioned; and where they differ I have generally preferred the Harl. MS. which seems to me the more genuine the Sloane MS. is obviously corrected in its antiquarian paragraph, and I think not by the author. But I have noted some of the more important variations of the text, so that the reader may judge for himself.