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vantage of England at this present time. And because we will less wander in generalities, we will fix the comparison to precise times; comparing the state of Spain and England in the year 88, with this present year that now runneth. In handling of this point, I will not meddle with any personal comparisons of the princes, counsellors, and commanders by sea or land, that were then, and that are now, in both kingdoms, Spain and England; but only rest upon real points, for the true balancing of the state of the forces and affairs of both times. And yet these personal comparisons I omit not, but that I could evidently show, that even in these personal respects the balance sways on our part; but because I would say nothing that may savour of a spirit of flattery or censure of the present government.

First, therefore, it is certain, that Spain hath not now one foot of ground in quiet possession more than it had in 88. As for the Valtoline, and the Palatinate, it is a maxim in state, that all countries of new acquest, till they be settled, are rather matters of burden than of strength. On the other side, England hath Scotland united, and Ireland reduced to obedience, and planted; which are mighty augmentations.

Secondly, in 88, the kingdom of France, able alone to counterpoise Spain itself, much more in conjunction, was torn with the party of the league, which gave law to their king, and depended wholly upon Spain. Now France is united under a valiant young king, generally obeyed if he will, himself king of Navarre as well as of France; and that is no ways taken prisoner, though he be tied in a double chain of alliance with Spain.

Thirdly, in 88, there sat in the see of Rome a fierce thundering frier, that would set all at six and seven; or at six and five, if you allude to his name: and though he would after have turned his teeth upon Spain, yet he was taken order with before it came to that. Now there is ascended to the papacy a personage, that came in by a chaste election, no ways obliged to the party of the Spaniards: a man bred in embassages and affairs of state, that hath much of the prince, and nothing of the frier; and one, that though he loves the chair of the papacy well, yet he loveth the carpet above the chair; that is, Italy, and the liberties thereof well likewise.

Fourthly, in 88, the king of Denmark was a stranger to England, and rather inclined to Spain; now the king is incorporated to the blood of England, and engaged in the quarrel of the Palatinate. Then also Venice, Savoy, and the princes and cities of Germany, had but a dull fear of the greatness of Spain, upon a general apprehension only of the spreading and ambitious designs of that nation: now that fear is sharpened and pointed by the Spaniard's late enterprises upon the Valtoline and the Palatinate, which come nearer them.

Fifthly and lastly, the Dutch, which is the Spaniard's perpetual duellist, hath now, at this present, five ships to one, and the like proportion in treasure and wealth, to that they had in 88. Neither is it possible, whatsoever is given out, that the coffers of Spain should now be fuller than they were in 88: for at that time Spain had no other wars save those

of the Low Countries, which were grown into an ordinary; now they have had coupled therewith the extraordinary of the Valtoline, and the Palatinate. And so I conclude my answer to the objection raised touching the difference of times; not entering into more secret passages of state, but keeping that character of style whereof Seneca speaketh, "plus significat quam loquitur."

Here I would pass over from matter of experience, were it not that I held it necessary to discover a wonderful erroneous observation that walketh about, and is commonly received, contrary to all the true account of time and experience. It is, that the Spaniard, where he once getteth in, will seldom or never be got out again. But nothing is less true than this. Not long since they got footing at Brest, and some other parts in French Britain, and after quitted them,. They had Calais, Ardes, and Amiens, and rendered them, or were beaten out. They had since Marseilles, and fairly left it. They had the other day the Valtoline, and now have put it in deposit. What they will do with Ormus, which the Persian hath taken from them, we shall see. So that, to speak truly of latter times, they have rather poached and offered at a number of enterprises, than maintained any constantly; quite contrary to that idle tradition. In more ancient times, leaving their purchases in Afric, which they after abandoned, when their great emperor Charles had clasped Germany almost in his fist, he was forced, in the end, to go from Isburg, and as if it had been in a mask, by torchlight, and to quit every foot in Germany round that he had gotten; which, I doubt not, will be the hereditary issue of this late purchase of the Palatinate. And so I conclude the ground that I have to think that Spain will be no overmatch to Great Britain, if his Majesty should enter into a war, out of experience, and records of time.

For grounds of reason, they are many; I will extract the principal, and open them briefly, and, as it were, in the bud. For situation, I pass it over; though it be no small point: England, Scotland, Ireland, and our good confederates the United Provinces, lie all in a plump together, not accessible but by sea, or at least by passing of great rivers, which are natural fortifications. As for the dominions of Spain, they are so scattered, as it yieldeth great choice of the scenes of the war. and promiseth slow succours unto such part as shall be attempted. There be three main parts of military puissance, men, money, and confederates. For men, there are to be considered valour and number. Of valour I speak not; take it from the witnesses that have been produced before: yet the old observation is not untme, that the Spaniard's valour lieth in the eye of the looker on; but the English valour lieth about the soldier's heart. A valour of glory, and a valour of natural courage, are two things. But let that pass, and let us speak of number: Spain is a nation thin sown of people; partly by reason of the sterility of the soil, and partly because their natives are exhausted by so many employments in such vast territories as they possess. So that it hath been accounted a kind of miracle, to see ten or twelve thousand native Spaniards in an army. And it is certain, as we have touched it, a little before, in passage, that the secret of the power of Spain consisteth in a veteran army, compounded of miscellany forces of all nations, which for many years they have had on foot upon one occasion or other: and if there should happen the misfortune of a battle, it would be a long work to draw on supplies. They tell a tale of a Spanish ambassador that was brought to see the treasury of S. Mark at Venice, and still he looked down to the ground: and being asked, why he so looked down, said, "he was looking to see whether their treaure had any root, so that if it were spent it would grow again; as his master's had." But, howsoever it be of their treasure, certainly their forces have scarce any root; or at least such a root as buddeth forth poorly and slowly. It is true they have the Walloons, who are tall soldiers, yet that is but a spot of ground. But, on the other side, there is not in the world again such a spring and seminary of brave military people, as is England, Scotland, Ireland, and the United Provinces: so as if wars should mow them down never so fast, yet they may be suddenly supplied, and come up again.

For money, no doubt it is the principal part of the greatness of Spain; for by that they maintain their veteran army: and Spain is the only state of Europe that is a money grower. But in this part, of all others, is most to be considered, the ticklish and brittle state of the greatness of Spain. Their greatness consisteth in their treasure, their treasure in their Indies, and their Indies, if it be well ■weighed, are indeed but an accession to such as are roasters by sea. So as this axle-tree, whereupon their greatness turneth, is soon cut in two by any that shall be stronger than they by sea. Herein therefore I refer myself to the opinions of all men, enemies or whomsoever, whether that the maritime forces of Great Britain, and the United Provinces, be not able to beat the Spaniard at sea? For if that be so, the links of that chain whereby they hold their greatness are dissolved. Now if it be said, that admit the case of Spain to be such as we have made it, yet we ought to descend into our own case, which we shall find, perhaps, not to be in state, for treasure, to enter into a war with Spain. To which I answer; I know no such thing; the mint beateth well; and the pulses of the people's hearts beat well. But there is another point that taketh away quite this objection: for whereas wars are generally causes of poverty or consumption; on the contrary part, the special nature of this war with Spain, if it be made by sea, is like to be a lucrative and restorative war. So that, if we go roundly on at the first, the war in continuance will find itself. And therefore you must make a great difference between Hercules' labours by land, and Jason's voyage by sea for the golden fleece.

For confederates; I will not take upon me the knowledge, how the princes, states, and councils of Europe, at this day, stand affected towards Spain; for that trencheth into the secret occurrents of the present time, wherewith, in all this treatise, I have

forborne to meddle. But to speak of that which liclh open and in view; I see much matter of quarrel and jealousy, but little of amity and trust towards Spain, almost in all other estates. I see France is in competition with them for three noble portions of their monarchy, Navarre, Naples, and Milan; and now freshly in difference with them about the Valtoline. I see once in thirty or forty years cometh a pope, that casteth his eye upon the kingdom of Naples, to recover it to the church: as it was in the minds of Julius the second, Paul the fourth, and Sixtns the fifth. As for that great body of Germany, I see they have greater reason to confederate themselves with the kings of France, and Great Britain, or Denmark, for the liberty of the German nation, and for (he expulsion of Spanish and foreign forces, than they had in the years 1552 and 1553. At which time they contracted a league with Henry the second the French king, upon the same articles, against Charles the fifth, who had impatronized himself of a great part of Germany, through thediscord of thfe German princes, which himself had sown and fomented: which league at that time did the deed, and drave out all the Spaniards out of that part of Germany; and redintegrated that nation in their ancient liberty and honour. For the West Indies, though Spain hath had yet not much actual disturbance there, except it have been from England; yet nevertheless I see all princes lay a kind of claim unto them; accounting the title of Spain but as a monopoly of those large countries, wherein they have in great part but an imaginary possession. For Afric upon the west, the Moors of Valentia expulsed, and their allies, do yet hang as a cloud or storm over Spain. Gabor on the east is like an anniversary wind, that riseth every year upon the party of Austria. And Persia hath entered into hostility with Spain, and given them the first blow by taking of Ormus. It is within every man's observation also, that Venice doth think their state almost on fire, if the Spaniards hold the Valtoline. That Savoy hath learned by fresh experience, that alliance with Spain is no security against the ambition of Spain; and that of Bavaria hath likewise been taught, that merit and service doth oblige the Spaniard but from day to day. Neither do I say for all this but that Spain may rectify much of this ill blood by their particular and cunning negotiations: but yet there it is in the body, and may break out, no man knoweth when, into ill accidents: and at least it showeth plainly, that which serveth for our purpose, that Spain is much destitute of assured and confident confederates. And therefore I will conclude this part with the speech of a counsellor of state in Spain at this daj', which was not without salt: he said to his master the king of Spain that now is, upon occasion; "Sir, I will tell your Majesty thus much for your comfort; your Majesty hath but two enemies, whereof the one is all the world, and the other is your own ministers." And thus I end the second main part I propounded to speak of; which was, the balancing of the forces between the king's Majesty and the king of Spain, if a war must follow.

LAW TRACTS.

THE ELEMENTS

or

THE COMMON LAW OF ENGLAND.

CONTAINING,
FIRST,

A COLLECTION OF SOME OF THE PRINCIPAL RULES AND MAXIMS OF THE COMMON LAW, WITH THEIR

LATITUDE AND EXTENT.

SECONDLY,

THE USE OF THE COMMON LAW FOR PRESERVATION OF OUR PERSONS, GOODS, AND GOOD NAMES; ACCORDING

TO THE LAWS AND CUSTOMS OF THIS LAND.

TO HER SACRED MAJESTY.

I Do here most humbly present and dedicate unto your sacred Majesty a sheaf and cluster of fruit of the good and favourable season, which by the influence of your happy government we enjoy; for if it bt true that " silent leges inter arma," 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; and again, because you are the life of our peace, without which laws are put to silence. And as the vital spirits do not only maintain and move the body, but also contend to perfect and renew it; so your sacred Majesty, who is omwi legit, doth not only give unto your laws force and vigour; but also hath been careful of their amendment and reforming: wherein your Majesty's proceeding may be compared, as in that part of your government, for if your government be considered in all the parts, it is incomparable, with the former doings of the most excellent princes that ever have reigned, whose study altogether hath been always to adorn and honour times of peace with the amendment of the policy of their laws. Of this proceeding in Augustus Ca-sar the testimony yet remains.

"Pace data terris, animum ad civilia vertit
Jure suum; legetque tulit justissimus auctor."

Hence was collected the difference between gesla in armis and acta in toga, whereof Cicero disputeth thus: Ph i I c 7 "^c1u'^ est' 9uoa- tam ProPr'e dici possit actum ejus, qui togatus in republica cum potentate imperioque versatns sit, quam lex? qurere acta Gracchi: leges Semproniae proferantur. Qiittre Sylla?: Corneliee. Quid? Cn. Pompeii tertius consulatus in quibus actis consistit? nempe in legibus. A Ccesare ipso si quareres quidnam egisset in urbe, et in toga: leges mnltas se responderet, et prreclaras tulisse."

The same desire long after did spring in the emperor Justinian, being rightly called " ultimus imperatorum Romanorum," who having peace in the heart of his empire, and making his wars prosperously in the remote places of his dominions by his lieutenants, chose it for a monument and honour of his government, to revise the Roman laws, and to reduce them from infinite volumes and much repugnancy and uncertainty, into one competent and uniform corps of law; of which matter himself doth speak gloriously, and yet aptly, calling it, "proprium et sanctissimtim templum justitise consecratum :" a work of great excellency indeed, as may well appear, in that France, Italy, and Spain, which have long since shaken off the yoke of the Roman empire, do yet nevertheless continue to use the policy of that law: but more excellent had the work been, save that the more ignorant and obscure time undertook to correct the more learned and flourishing time. To conclude with the domestic example of one of your Majesty's royal ancestors: King Edward I. your Majesty's famous progenitor, and principal law-giver of our nation, after he had in younger years given himself satisfaction in glory of arms, by the enterprise of the Holy Land, having inward peace, otherwise than for the invasion which himself made upon Wales and Scotland, parts far distant from the centre of the realm, he bent himself to endow his state with sundry notable and fundamental laws, upon which the government ever since hath principally rested. Of this example, and other the like, two reasons may be given; the one, because that kings, which, either by the moderation of their natures, or the maturity of their years and judgment, do temper their magnanimity with justice, do wisely consider and conceive of the exploits of ambitious wars, as actions rather great than good; and so, distasted with that course of winning honour, they convert their minds rather to do somewhat for the better uniting of human society, than for the dissolving or disturbing of the same. Another reason is, because times of peace, drawing for the most part with them abundance of wealth, and finesse of cunning, do draw also, in farther consequence, multitudes of suits and controversies, and abuses of law by evasions and devices; which inconveniences in such times growing more general, do more instantly solicit for the amendment of laws to restrain and repress them.

Your Majesty's reign having been blest from the Highest with inward peace, and falling inlo an age, wherein, if science be increased, conscience is rather decayed; and if men's wits be great, their wills are more great; and wherein also laws are multiplied in number, and slackened in vigour and execution; it was not possible but that not only suits in law should multiply and increase, whereof always a great part are unjust, but also that all the indirect and sinister courses and practices to abuse law and justice should have been much attempted, and put in ure, which no doubt had bred great enormities, had they not, by the royal policy of your Majesty, by the censure and foresight of your Council-table and Starchamber, and by the gravity and integrity of your benches, been repressed and restrained: for it may be truly observed, that, as concerning frauds in contracts, bargains, and assurances, and abuses of laws by delays, covins, vexations, and corruptions in informers, jurors, ministers of justice, and the like, there have been sundry excellent statutes made in your Majesty's time, more in number, and more politic in provision, than in any of your Majesty's predecessors' times.

But I am an unworthy witness to your Majesty of a higher intention and project, both by that which was published by your chancellor in full parliament from your royal mouth, in the five and thirtieth of your happy reign; and much more by that which I have been vouchsafed to understand from your Majesty, imparting a purpose for these many years infused into your Majesty's breast, to enter into a general amendment of the state of your laws, and to reduce them to more brevity and certainty, that the great hollowness and unsafety in assurances of lands and goods may be strengthened, the snaring penalties, that lie upon many subjects, removed, the execution of many profitable laws revived, the judge better directed in his sentence, the counsellor better warranted in his counsel, the student eased in his reading, the contentious suitor, that seeketh but vexation, disarmed, and the honest suitor, that seeketh but to obtain his right, relieved; which purpose and intention, as it did strike me with great admiration when I heard it, so it might be acknowledged to be one of the most chosen works, and of the highest merit and beneficence towards the subject, that ever entered into the mind of any king; greater than we can imagine, because the imperfections and dangers of the laws are covered under the clemency and excellent temper of your Majesty's government. And though there be rare precedents of it in government, as it cometh to pass in things so excellent, there being no precedent full in view but of Justinian; yet I must say as Cicero said to Caesar, " Nihil vulgare te dignum videri potest;" and as it is no doubt a precious seed sown in your Majesty's heart by the hand of God's divine Majesty, so, I hope, in the maturity of your Majesty's own time, it will come up and bear fruit. But to return thence whither I have been carried; observing in your Majesty, upon so notable proofs and grounds, this disposition in general of a prudent and royal regard to the amendment of your laws, and having by my private labour and travel collected many of the grounds of the common law, the better to establish and settle a certain sense of law, which doth now too much waver in incertainty, I conceived the nature of the subject, besides my particular obligation, was such, as I ought not to dedicate the same to any other than to your sacred Majesty; both because though the collection be mine, yet the laws are yours; and because it is your Majesty's reign that hath been as a goodly seasonable spring weather to the advancing of all excellent arts of peace. And so concluding with a prayer answerable to the present argument, which is, that God will continue your Majesty's reign in a happy and renowned peace, and that he will guide both your policy and armsto purchase the continuance of it with surety and honour, I most humbly crave pardon, and commend your Majesty to the divine preservation.

Your sacred Majesty's most humble and obedient subject and servant, 1596. FRANCIS BACON.

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THE PREFACE.

I Hold every man a debtor to his profession j from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavour themselves, by way of amends, to be a help and ornament thereunto. This is performed in some degree by the honest and liberal practice of a profession, when men shall carry a respect not to descend into any course that is corrupt and unworthy thereof, and preserve themselves free from the abuses wherewith the same profession is noted to be infected; but much move is this performed if a man be able to visit and strengthen the roots and foundation of the science itself; thereby not only gracing it in reputation and dignity, but also amplifying it in profession and substance. Having therefore from Ihe beginning come to the study of the laws of this realm, with a mind and desire no less, if I could attain unto it, that the same laws should be the better by my industry, than that myself should be the better by the knowledge of them; I do not find that by mine own travel, without the help of authority, I can in any kind confer so profitable an addition unto that science, as by collecting the rules and grounds dispersed throughout the body of the same laws; for hereby no small light will be given in new cases, and such wherein there is no direct authority to sound into the true conceit of law, by the depth of reason, in cases wherein the authorities do square and vary, to confirm the law, and to make it received one way; and in cases wherein the law is cleared by authority, yet nevertheless, to see more profoundly into the reason of such judgments and ruled cases, and thereby to make more use of them for the decision of other cases more doubtful: 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, somewhat the more settle and be corrected. Neither will the use hereof be only in deciding of doubts, and helping soundness of judgment, but farther in gracing of argument, in correcting of unprofitable subtlety, and reducing the same to a more sound and substantial sense of law; in reclaiming vulgar errors, and generally in the amendment in some measure of the very nature and complexion of the whole law: and therefore the conclusions of reason of this kind are worthily and aptly called by a great civilian, legum leget, for that many plueita legum, that is, particular and positive learnings of laws, do easily decline from a good temper of justice, if they be not rectified and governed by such rules.

Now for the manner of setting down of them, I have in all points, to the best of my understanding and foresight, applied myself not to that which might seem most for the ostentation of mine own wit or knowledge, but to that which may yield most use and profit to the students and professors of the laws.

And therefore, whereas these rules are some of them ordinary and vulgar, that now serve but for grounds and plain songs to the more shallow and impertinent sort of arguments j others of them are gathered and extracted out of the harmony and congruity of cases, and are such as the wisest and deepest sort of lawyers have in judgment and in use, though they be not able many times to express and set them down.

For the former sort, which a man that should rather write to raise a high opinion of himself, than to instruct others, would have omitted, as trite and within every man's compass; yet nevertheless I have not affected to neglect them, but having chosen out of them such as I thought good, I have reduced them to a true application, limiting and defining their bounds, that they may not be read upon at large, but restrained to point of difference: for as, both in the law and other sciences, the handling of questions by common-place, without aim or application, is the weakest; so yet nevertheless many common principles and generalities are not to be contemned, if they be well derived and deduced into particulars, and their limits and exclusions duly assigned; for there be two contrary faults and extremities in the debating and sifting out of the law, which may be best noted in two several manner of arguments. Some argue upon general grounds, and come not near the point in question: others, without laying any foundation of a ground or difference, do loosely put cases, which, though they go near the point, yet being so scattered, prove not, but rather serve to make the law appear more doubtful than to make it more plain.

Secondly, whereas some of these rules have a concurrence with Ihe civil Roman law, and some others a diversity, and many times an opposition, such grounds which are common to our law and theirs I have not affected to disguise into other words than the civilians use, to the end they might seem invented by me, and not borrowed or translated from them: no, but I took hold of it as a matter of great authority and majesty, to use and consider the concordance between the laws penned, and as it were dictated verbatim, by the same reason. On the other side, the diversities between the civil Roman rules of law and ours, happening either when there is such an indifferency of reason so equally balanced, as the one law embracelh one course, and the other the contrary, and both just, after either is once positive and certain; or where the laws vary in regard of accommodating the law to the different considerations of estate, I hare not omitted to set down with the reasons.

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