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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.
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.
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 disjoined aphorisms doth leave the wit of man more free to turn and to toss, and to make use of that which is so delivered to more several purposes and applications; for we see that all the ancient wisdom and science was wont to be delivered in that form, as may be seen by the parables of Solomon, and by the aphorisms of Hippocrates, and the moral verses of Theognis and Phocylides; but chiefly the precedent of the civil law, which hath taken the same course with their rules, did confirm me in my opinion.
Fourthly, whereas I know very well it would have been more plausible and more current, if the rules, with the expositions of them, had been set down either in Latin or English; that the harshness of the language might not have disgraced the matter ; and that civilians, statesmen, scholars, and other sensible men, might not have been barred from them; yet I have forsaken that grace and ornament of them, and only taken this course: the rules themselves I have put in Latin, not purified farther than the propriety of terms of law would permit; which language I chose, as the briefest to contrive the rules compendiously, the aptest for memory, and of the greatest authority and majesty to be avouched and alleged in argument: and for. the expositions and distinctions, I have retained the particular language of our law, because it should not be singular among the books of the same science, and because it is most familiar to the students and professors thereof, and besides that it is most significant to express conceits of law; and to conclude, it is a language wherein a man shall not be enticed to hunt after words but matter; and for excluding any other than professed lawyers, it were better manners to exclude them by the strangeness of the language, than by the obscurity of the conceit: which is such as though it had been written in no private and retired language, yet by those that are not lawyers would for the most part have been either1 not understood, or, which is worse, mistaken.
Fifthly, whereas I might have made more flourish and ostentation of reading, to have vouched the authorities, and sometimes to have enforced or noted upon them, yet I have abstained from that also; and the reason is, because I judged it a matter undue and preposterous to prove rules and maxims; wherein I had the example of Mr. Littleton and Mr. Fitzherbert, whose writings are the institutions of the laws of England: whereof the one forbeareth to vouch any authority altogether; the other never reciteth a book, but when he thinketh the case so weak in credit of itself as it needeth a surety; and these two I did far more esteem than Mr. Perkins or Mr. Standford, that have done the contrary. Well will it appear to those that are learned in the laws, that many of the cases are judged cases, either within the books, or of fresh report, and most of them fortified by judged cases and similitude of reason ; though in some cases I did intend expressly to weigh down authorities by evidence of reason, and therein rather to correct the law, than either to soothe a received error, or by unprofitable subtlety, which corrupteth the sense of the law, to reconcile contrarieties. For these reasons I resolved not to derogate from the authority of the rules, by vouching of the authorities of the cases, though in mine own copy I had them quoted: for although the meanness of mine own person may now at first extenuate the authority of this collection, and that every man is adventurous to control; yet surely, according to Gamaliel's reason, if it be of weight, time will settle and authorize it; if it be light and weak, time will reprove it. So that, to conclude, you have here a work without any glory of affected novelty, or of method, or of language, or of quotations and authorities, dedicated only to use, and submitted only to the censure of the learned, and chiefly of time.
Lastly, there is one point above all the rest I account the most material for making these reasons indeed profitable and instructing; which is, that they be not set down alone, like short dark oracles, which every man will be content to allow still to be true, but in the mean time they give little light and direction; but I have attended them, a matter not practised, no not in the civil law to any purpose : and for want whereof, the rules indeed are but as proverbs, and many times plain fallacies, with a clear and perspicuous exposition, breaking them into cases, and opening their sense and use, and limiting them with distinction, and sometimes showing the reasons whereupon they depend, and the affinity they have with other rules. And though I have thus, with as much discretion and foresight as I could, ordered this work, and as I may say, without all colours or shows, husbanded it best to profit; yet nevertheless not wholly trusting to mine own judgment: having collected three hundred of them, I thought good, before I brought them all into form, to publish some few, that by the taste of other men's opinions in this first, I might receive either approbation in mine own course, or better advise for the altering of the other which remain: for it is great reason that that which is intended to the profit of others, should be guided by the conceits of others. THE MAXIMS OF THE LAW.
REGULA I. Injure non remota causa sed proximo spectalur.
It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any farther degree.
6 H s l)v fo ^8 *'an annu''y be. granted "pro coni. eta. silio 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. Litt can Di»- ^° " a Parson make a lease, and be cont. 2 H 4. >. deprived, or resign, the successors shall ■M H. a a. avoid the lease; and yet the cause of deprivation, and more strongly of a resignation, moved from the party himself: but the law regardeth not that, because the admission of the new incumbent is the act of the ordinary.
So if I be seised of an advowson in b H 7. »>. gross, and an usurpation be had against me, and at the next avoidance I usurp arere, I shall be remitted: and yet the presentation, which is the act remote, is mine own act; but the admission of my clerk, whereby the inheritance is reduced to me, is the act of the ordinary.
So if I covenant with I. S. a stranger, in consideration of natural love to my son, to stand seised to the use of the said I. S. to the intent he shall infeoff my son; by this no use will rise to I. S. because the law doth respect that there is no immediate consideration between me and I. S. 12 H. 44. H. a So if I be bound to enter into a °y-f- '■ statute before the mayor of the staple at such a day, for the security of n hundred pounds, and the obligee, before the day, accept of me a lease of a house in satisfaction; this is no plea in debt upon my obligation: and yet the end of this statute was but security for money; but because the entering into this statute itself, which is the mediate act whereto I am bound, is a corporal act which lieth not in satisfaction, therefore the law taketh no consideration that the remote intent was for money.
.T7 R Chest ^° ^ ' make a feoffment * in fee, upon condition that the feoffee shall
* M.40et41. El. Julius Wilmington's case, ore report per to ties reverend Judge, le Sur Coke, lib. '2.
infeoff over, and the feoffee be disseised, and a descent cast, and then the feoffee bind himself in a statute, which statute is discharged before the recovery of the land: lliis is no breach of the condition, because the land was never liable to the statute, and the possibility that it should be liable upon recovery the law doth not respect.
So if I enfeoff two, upon condition to enfeoff, and one of them take a wife, the condition is not broken; and yet there is a remote possibility that the jointtenant may die, and then the feme is entitled to dower.
So if a man purchase land in fee-simple, and die without issue; in the first degree the law rcspecteth dignity of sex, and not proximity; and therefore the remote heir on the part of the father shall have it, before the near heir on the part of the mother: but in any degree paramount the first the law respecteth it not, and therefore the near heir by the grandmother on the part of the father shall have it, before the remote heir of the grandfather on the part of the father.
This rule faileth in covinous acts, which though they be conveyed through many degrees and reaches, yet the law taketh heed to the corrupt beginning, and counteth all as one entire act.
As if a feoffment be made of lands
held in knight's service to I. S. upon 37_R- D?c.re * ° 1 case, obiter.
condition that he within a certain time
shall enfeoff I. D. which feoffment to I. D. shall be
to the wife of the first feoffer for her jointure, &c.
this feoffment is within the statute of 32 II. VIII.
"nam dolus circuitu non purgatur."
In like manner this rule holdeth not in criminal
acts, except they have a full interruption; because
when the intention is matter of substance, and that
which the law doth principally behold, there the
first motive must be principally regarded, and not
the last impulsion. As if I. S. of malice 0p cg,,,.^
prepense discharge a pistol at l.D. and ei autre* in
■ i_ ■ , I.l j case de StoeL
miss nun, whereupon he throws down
his pistol and flics, and I. D. pursueth him to kill him, whereupon he turneth and killeth I. D. with a dagger; if the law should consider the last impulsive cause, it should say that this was in his own defence; but the law is otherwise, for it is but a pursuance and execution of the first murderous intent.
But if I. S. had fallen down, his dagger drawn, and I. D. had fallen by haste upon his dagger, there I. D. had been felo de se, and I. S. shall go quit
Also you may not confound the act with the execution of the act; nor the entire act with the last part, or the consummation of the act.
For if a disseisor enter into reli- ut capde gion, the immediate cause is from the
party though the descent be cast in law; but the law doth but execute the act which the party procureth, and therefore the descent shall not bind, el sic e converse.
If a lease for years be made rendering rent, and the lessee make a feoffment of part, and the lessor enter, the immediate cause is from the law in respect of the forfeiture, 24 H. a lb. 4. though the entry be the act of the Dy. 21 H. party; but that is but the pursuance and putting in execution of the title which the law giveth: and therefore the rent or condition shall be apportioned.
So in the binding of a right by descent, you are to consider the whole time from the disseisin to the descent cast; and if at all times the person be not privileged, the descent binds. 9H 7 24.Set ^n<* tner,;'ore 'f a feme covert be 4 P. et M. Dr. disseised, and the baron dieth, and she taketh a new husband, and then the descent is cast: or if a man that is not " infra quatuor maria," be disseised, and return into England, and go over sea again, and then a descent is cast, this descent bindcth, because of the interim when the persons might have entered; and the law respecteth not the state of the person at the last time of the descent cast, but a continuance from the very disseisin to the descent.
So if baron and feme be, and they 4 cpyPi^ M' join in feoffment of the wife's land rendering rent, and the baron die, and the feme take a new husband before any rent-day, and he accept the rent, the feoffment is affirmed for ever.
Nan potest adduci exceptio ejusdem ret, cujus petitur dissolutio.
It were impertinent and contrary in itself, for the law to allow of a plea in bar of such matter as is to be defeated by the same suit; for it is included: and otherwise a man should never come to the end and effect of his suit, but be cut off in the way.
And therefore if tenant in tail of a manor, whereunto a villain is regardant, discontinue and die, and the right of entail descend unto the villain himself, who brings formedon, and the discontinuee pleadeth villenage; this is no plea, because the devester of the manor, which is the intent of the suit, doth include this plea, because it determineth the villenage.
So if tenant in ancient demesne be disseised by the lord, whereby the seigniory is suspended, and the disseisee bring his assize in the court of the lord, frank fee is no plea, because the suit is to undo the disseisin, and to receive the seigniory in ancient demesne.
So if a man be attainted and exe7H 6 +4TM cu'e^< m& ,ne heir bring error upon the attainder, and corruption of blood by the same attainder be pleaded, to interrupt his conveying in the said writ of error; this is no plea, for then he were without remedy ever to reverse the attainder.
3S Ed. 3.32. So if tenant in tail discontinue for
life rendering rent, and the issue brings formedon, and the warrant of his ancestor with assets is pleaded against him, and the assets is layed to be no other but his reversion with the rent; this is no plea, because the formedon which is brought to undo this discontinuance, doth inclusively undo this new reversion in fee, and the rent thereunto annexed.
But whether this rule may take place when the matter of the plea is not to be avoided in the same suit but in another suit, is doubtful; and I rather take the law to be, that this rule doth extend to such cases; where otherwise the party were at a mischief, in respect the exceptions or bars might be pleaded cross, either of them, in the contrary suit; and so the party altogether prevented and intercepted to come by his right.
So if a man be attainted by two several attainders, and there is error in them both, there is no reason but there should be a remedy open for the heir to reverse those attainders being erroneous, as well if they be twenty as one.
And therefore, if in the writ of error brought by the heir of one of them, the other attainder should be a plea peremptory; and so again, if in error brought of that other, the former should be a plea; these were to exclude him utterly of his right: and therefore it shall be a good replication to say, that he hath a writ of error depending of that also, and so the court shall proceed: but no judgment shall be given till both pleas be discussed; and if either plea be found without error, there shall be no reversal either of the one or of the other; and if he discontinue either writ, then shall it be no longer a plea: and so of several outlawries in a personal action.
And this seemeth to me more reasonable, than that generally an outlawry or an attainder should be no plea in a writ of error brought upon a diverse outlawry or attainder, as 7 H. IV. and 7 H. VI. seem to hold; for that is a remedy too large for the mischief; for there is no reason but if any of the outlawries be indeed without error, but it should be a peremptory plea to the person in a writ of error, as well as in any other action.
But if a man levy a fine "sur conusaunce de droit come ceo que il ad de son done," and suffer a recovery of the same lands, and there be error in them both, he cannot bring error first of the fine, because by the recovery his title of error is discharged and released in law inclusive, but he must R begin with the error upon the recovery, which he may do, because a fine executed barreth no titles that accrue de puisne terns after the fine levied, and so restore himself to his title of error upon the fine: but so it is not in the former case of the attainder; for the writ of error to a former attainder is not given away by a second, except it be by express words of an act of parliament, but only it remaineth a plea to his person while he liveth, and to the conveyance of the heir after his death.
But if a man levy a fine where he hath nothing in the land, which inureth by way of conclusion only, and is executory against all purchases and new titles which shall grow to the conusor afterwards, and he purchase the land, and suffer a recovery to