Inns of Court

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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.

Law French, the language of the courts

Law French was a mixture of Norman French as spoken in England for a few hundred years after the Conquest, Latin, and English. It was generally pronounced using English phonology. Usher describes this jargon as “a crass compound, void of form, structure, regularity, or grammar, — the result of abysmal ignorance of all three languages.”

I think it qualifies as a pidgin: “a language containing lexical and other features from two or more languages, characteristically with simplified grammar and a smaller vocabulary than the languages from which it is derived, used for communication between people not having a common language.” (OED.) Pidgins aren’t really languages, since they lack grammars, in the linguistic sense of a complexly structured system. They’re not systems, they’re just rough-and-ready means of communicating across linguistic boundaries.

Law French began as the language of the ruling class, who naturally dominated the courts and the legal profession. Latin was the language of literacy in those days, so it naturally supplied many terms and connectives. As the English aristocracy forgot how to speak French, English inevitably moved into the courts. The result is not technically a pidgin, but it is pidgin-esque.

Francis Bacon was reared in the center of this odd linguistic nexus. He was perfectly fluent in Latin and French and exceptionally articulate in English as well. When Law French entered his fertile brain, it was creolized — turned into a language with a consistent system of grammar. Creoles are what happen when children grow up in a pidgin-speaking community.

Usher found a manuscript in Bacon’s handwriting from 1586-87, which would make it the earliest known piece of Bacon’s writing. It is entirely in Law French and treats of a thorny aspect of the law having to do with  lands and goods to which no one can claim title. (They belong to the crown.) The important part of this for us is that Bacon manages to write elegantly even in that barbarous jargon. Usher observes that “he regards the singular and plural of the subject and verb as related to one another; he is exact in his use of connectives, observes the common French genders, and is sparing of English words, except where they have been incorporated into the Law-French and possessed a technical meaning.”

That’s our Francis! What a beautiful brain!

Yes, it’s nuts

Hazelnuts_wikicomThis is from a Reading given at Gray’s Inn during the Lent Vacation in 1452 (30 Henry VI.) I give you the original Law French followed by Mr. Thorne’s translation. You should read it aloud in a rich BBC English accent, although my Texas accent is probably closer to the West Country dialect of the sixteenth century.

De nucibus et glande et aliis fructibus colligendis. A ma entent, si home graunt per son fait a moy en fee xij busshesellis de nuces hors de un graunt bois, en ceo cas sur tiell graunt le grauntor serra lie per le ley de colleier lez nucez, issint que ieo suwe content de mez nucez a mon terme de paiement, com lou home graunt a moy xx s. de rent hors de son maner, il est tenuz de veier que suwe contente a son perill.

[Of collecting nuts and acorns and other fruits.] As I understand it, if a man grants to me in fee by deed 12 bushels of nuts out of a great wood, in that case, upon such grant, the grantor shall be bound by law to gather the nuts, so that I be satisfied at my term of payment, as where a man grants me 20s. of rent out of his manor he is bound at his peril to see that I am content.

This, for hours in a crowded hall, standing, with no water bottle and no granola bars. And don’t forget you’ll be expected to chat intelligently about it afterwards.

References

Thorne, Samuel E. 1954. Readings and Moots at the Inns of Court in the Fifteenth Century. Volume I. London: Bernard Quaritch. Publications of the Selden Society. pp2-3.

Usher, Roland G. 1919. “Francis Bacon’s Knowledge of Law-French,” Modern Language Notes, Vol. 34, No. 1 (Jan., 1919), pp. 28-32.

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