Francis Bacon and the common law

According to Wikipedia, “Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.” As we all know from watching Law & Order, it’s complicated. You have to learn it by learning masses of cases, rulings on cases, opinions for and against the said rulings, and which cases depend on other cases. Case law grows organically; like a language, one might say. That’s the part I like.

orderly_growthFrancis Bacon had an orderly mind; orderly within itself and also disposed to create order whenever it encountered something disorderly. Many people complained about how difficult it was to learn the law. Some complained about the messiness of the English common law system, as opposed to the greater predictability of the civil law system found on the Continent.

Bacon probably began to learn the law as a child, youngest son of the Lord Keeper of the Great Seal, who by virtue of that office was also the chief judge on the Queen’s Bench. Sir Nicholas probably played law games with his precocious son, putting cases to him as they walked down to the wherry in the morning.

Then Bacon studied civil law in France, during his few years there in late adolescence. He returned to live at Gray’s Inn in 1579. By 1586, he had deep experience of two things: the royal court and the common law. It’s not surprising, then, that the first intellectual work to which he would turn his attention would be an attempt to clarify aspects of the law as an aid to better learning and thus, better lawyers.

The Elements of the Common Laws of England: Maxims of the Law

Legal maxims are established principles or propositions. For a long time, such maxims were regarded as the key to the common law.

bacons_maxims_titlepageTypical of Francis, he began writing this work in 1586. He first published some part of it in 1596, the date of the dedication. The title page shown here is from the 1636 edition, ten years after his death, compiled in Spedding, Works, Vol IV. Here’s the beginning of the dedication.

To her Sacred Majesty. I do here most humbly present and dedicate unto your Majesty a sheaf and cluster of fruit of that good and favourable season, which by the influence of your happy government we enjoy; for if it be true that silent leges inter arma (In times of war, the law falls silent and the title of an episode of Deep Space Nine), it is also as true, that your Majesty is in a double respect the life of our laws; once, because without your authority they are but litera mortua (dead letters); again, because you are the life of our peace, without which laws are put to silence.

Flattery, yes, but also true, and thus very skillful. Another art Francis probably learned at his father’s knee.

His goal is to derive a set of rules and principles that underlie large portions of the law, “so that the uncertainty of law, which is the most principal and just challenge that is made to the laws of our nation at this time, will, by this new strength laid to the foundation, somwhat the more settle and be corrected.”

He lists the factors he considered in choosing and organizing these maxims. I like the third one:

Thirdly, whereas I could have digested these rules into a certain method or order, which, I know, would have been more admired, as that which would have made every particular rule, through his coherence and relation unto other rules, seem more cunning and more deep; yet I have avoided so to do, because this delivering of knowledge in distinct and disjointed aphorisms doth leave the wit of man more free to turn and toss, and to make use of that which is so delivered to more several purposes and applications…

The best thing about being a novelist instead of some form of gainful employment is that my wit is absolutely free to turn and toss. Here’s the first Maxim:

In jure non remota causa sed proxima spectatur. (In law the immediate, not the remote cause of any event is to be regarded. Translation courtesy of my new BFF, duhaime.org!)

It were infinite for the law to consider the causes of causes, and their impulsions of one another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.

That’s reasonable; so far so good. But then we jump on into property law, which makes my hair hurt.

As if an annuity be granted pro consilio impenso et impendendo, and the grantee commit treason whereby he is imprisoned, so that the grantor cannot have access unto him for his counsel; yet nevertheless the annuity is not determined by this non feasance; yet it was the grantee’s act and default to commit the treason, whereby the imprisonment grew: but the law looketh not so far, and excuseth him, because the not giving counsel was compulsory, and not voluntary, in regard of the imprisonment.

Well, the maxim made sense. And here I rest my case.

Spedding, James, ed. 1890. The Works of Francis Bacon. Vol. IV. London: Longmans, Green, and Co.

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