retained. This circumstance creates a difficulty which almost all original thinkers have experienced, and which is seldom overcome but by the sacrifice of all originality and freedom of thought, and by an almost total devotion of every faculty of the mind to this one pursuit. This sacrifice Bacon would not make; and though from this cause his authority as a practical lawyer is less, the general claims that he has upon mankind as a teacher and guide are greatly enhanced.

But whatever might be his disqualifications in reference to this pursuit, he did not fail either from an inadequate conception of the compass of the work he had undertaken, or from any lack of earnestness in his devotion to the task. The motives by which he was influenced in commencing his treatise on The Elements of the Common Law of England, are set forth with equal dignity and force, in the preface to the treatise. "I hold every man a debtor to his profession; 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 from the abuses wherewith the same profession is noted to be infected; but much more 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 the 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." And the account that he furnishes of the manner in which he endeavoured to execute this task, and the principle upon which he regulated himself in his division of the subject, furnish much valuable materials for the future jurist. The whole of the preface is full of valuable matter, illustrating the character of his mind, and the comprehensive and accurate view that he took of this, as of every other field of learning which he endeavoured to explore, and the just conception he had formed of the method wherein it should be treated in order to its most useful development. He explains his plan in the treatment of the subject in reference to the nature of the rules that he should select for illustration, the language in which they should be delivered, the authorities by which they should be supported, and the mode of their illustration; and in each of these respects he furnishes an admirable lesson for those who second him in his work. He states under the first head, that "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; 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." He then explains that in those cases in which the civil law and the common law of England agreed, he should employ the language of the civilians, as being ordinarily the aptest, and that which was generally used; and that in those cases wherein there was a discrepancy, when either of the two courses being open to the legislator a different course had been pursued, or when the varying circumstances of the countries to which the laws were applicable, required a corresponding diversity in the nature of the law, he would point out and illustrate the nature and the cause of the incongruity. And again, with regard to the method, he had rather preferred placing the rules in an apparently unconnected, than to framing them into a systematic, form; and, though the latter might have the apparent advantage of giving an aspect of completeness and uniformity, following in this respect the example of the teachers of former times, who had thus delivered their instructions, of whom he instances Solomon in his Proverbs, and Phocylides in his Aphorisms. With regard to the language, he assigns the reasons which led him to prefer employing the Latin law phraseology for the rules, and the English language for the illustrations. He then adduces the reasons which had led him to refrain from quoting all the authorities, for the general rules which he laid down; and lastly, observe, "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 dark oracles, which every man will 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 distinctions, and sometimes showing the reasons whereupon they depend, and the affinity they have with other rules." The work is executed in conformity with the rules thus laid down, but it was only a small portion of the subject that was completed. The part that was first published, and which was intended as the introduction to the design, was committed to the judgment of his contemporaries, according to whose opinion he proposed to continue or abandon his undertaking. The manner also in which he executed the remainder was also to be determined by their reception of this portion of his labours. He did not profess to hold himself so far above other men, as to disdain to consult even their prejudices in respect of the manner in which a work intended for their instruction should be framed. His object being usefulness, he was content that the lessons he desired to inculcate should be moulded into the form that was most acceptable to others, not that which appeared abstractedly best to himself. As he expressed it, "It is great reason that that which is intended for the profit of others, should be guided by the conceits of others."

The work consists of two parts, The Maxims of the Law, and The Use of the Law: the former is devoted to the arrangement, exposition, and illustration of legal rules upon the principles he had laid down; the latter points out and enforces the ends which the law was designed to accomplish. These ends he defines to be, 1. To secure men's persons from death and violence. 2. To dispose the property of their goods and lands. 3. For preservation of their good names from shame and infamy. He shows generally the manner in which these objects are secured, and gives a brief view of the machinery provided for the administration of justice, and of the nature and effect of the various conveyances by which property may be transferred and acquired. The tract was written as early as 1596, and inscribed, as appears from the Harleian MSS. to Queen Elizabeth, on the 8th of January of that year, but it was not published till after his death.

The account of the office of alienations, which was established for the purpose of taking the fines and compositions payable upon lands held under the Crown, was composed in

1598, but not published until some years after his death, under the title of An Account of the lately erected Service, called the Office of Compositions for Alienations, from a Manuscript in the Inner Temple Library. It is a model of legal, historical, and economical writing. The biographer of Bacon, in the Biographia Britannica, becomes quite enthusiastic in his comment upon it; and as his eulogium may encourage" young readers in the perusal of books of this kind," whilst ours would fail, we are tempted to quote it for their benefit. "This curious and highly finished tract is one of the most laboured pieces penned by its most learned author, containing his resolutions on a very perplexed question, whether it was most for the queen's benefit that the profits arising from the office for alienations should be let out to farm or not? In handling this he has shown such diversity of learning, and so clear a conception of all the different points of law, history, antiquities, and policy, as is really amazing; for I think it may be truly said, that there is not any treatise of the same compass extant in our language, which manifests so comprehensive a genius, and so accurate a knowledge, both with respect to theory and practice, as this." Our author was involved in great pecuniary difficulties, when he drew this tract. He was then in his thirty-eighth year, and it may be conjectured that the envy of his relative, Mr. Secretary Cecil, to whom he actually appeals from a spunging-house for assistance, at the time when this dissertation was before the council, occasioned its posthumous publication.

The Reading on the Statute of Uses, which was not printed till after his death, is familiar to lawyers. Hargrave pronounces it to be "an excellent work,"—and thinks that it was delivered about three or four years before the death of Elizabeth. The commencement of his address to the students is grave and figurative, and the last sentence is an exposition of his own fate. "I have chosen to read upon the statute of uses, a law whereupon the inheritances of men are tossed at this day, like a ship upon the sea, in such sort, that it is hard to say which bark will sink, and which will get to haven; that is to say, what assurances will stand good, and what will not. Neither is there any lack or default in the pilots, the grave and learned judges; but the tides and currents of received errors, and unwarranted and abused experience, have been so strong, as they were not equal to keep a right course according to the law. Herein, though I could not be ignorant either of the difficulty of the matter, which he that taketh in hand shall soon find, or much less of my own unableness, which I had continual sense and feeling of; yet, because I had more means of absolution than the younger sort, and more leisure than the greater sort, I did think it not impossible to work some profitable effect; the rather because where an inferior wit is bent and constant upon one subject, he shall many times, with patience and meditation, dissolve and undo many of the knots, which a greater wit, distracted with many matters, would rather cut in two than unknit: and at the least, if my invention or judgment be too barren or too weak, yet by the benefit of other arts, I did hope to dispose or digest the authorities and opinions which are in cases of uses in such order and method, as they should take light one from another, though they took no light from me." Mr. Hargrave, the celebrated lawyer already referred to, considers the Reading as "a very profound treatise on the subject, so far as it goes, and shows that he had the clearest conception of one of the most abstruse parts of our law." And his chaplain was not far wrong when he said of his lord's law writings, that though some great masters of the law did outgo him in bulk and particularities of cases, yet in the science of the grounds and mysteries of the law, he was exceeded by none.

His other law writings consist of arguments in various cases in which he was employed as counsel, and in reference to matters of public moment, upon which his opinion was desired, or which he deemed of sufficient importance to justify him in delivering his sentiments publicly-A Proposal for the Reform of the Law-Speeches in his office of lord-keeper, &c. &c. In all of these we may notice excellences and defects, similar to those we have already referred to in speaking of the general character of his legal writings, and it may be observed, that

the excellences are most found in those productions, in which he showed what should be, instead of attempting to establish what was, the law. His elaborate arguments in the cases in which he was employed as counsel are less valuable than his hints for improving the laws of the country, not merely on account of the comparative narrowness of the subject in the former, but because his mind was eminently fitted for the comprehensiveness of thought required by the latter. His judgment in weighing and arguing from particular cases was inferior to that of many, his sagacity in deducing and exemplifying general principles was surpassed by none. The former, therefore, we shall advert to but very briefly, and confine ourselves chiefly to a condensed sketch of the latter.

In his Proposal for amending the Laws of England, written when he was Attorney-general in 1613, he answers with much clearness and force the objections which are ever urged against any such measure by the timid and interested, by those who fear the evils of change, and those who profit by the continuance of inconsistent and expensive laws. The objections which he anticipated are founded upon the needlessness and danger of alteration; and to both of these he gives clear and unanswerable replies. With regard to the former, he shows the evils that were daily experienced from the confusion and uncertainty of the law; the existence of obsolete and oppressive statutes, which though seldom enforced on account of their opposition to the general sense of the community, and the apparent injustice of their provisions, still existed, and might at any time be directed against the individual who at any time unconsciously infringed their enactments; the delay and expensiveness of suits; the reluctance on the part of those who are injured to appeal to the courts for redress, since there was much danger that the remedy might never be obtained, or if obtained might be found to involve greater evils than that against which they sought to be protected; and the want of respect for the law which resulted from the circumstance, that it was found to be a burden, rather than a defence, to those who chiefly needed its aid. It is a striking proof of the slow progress of the general intellect of a nation, that the maxims which he here lays down, and of which it would seem that the justice could not be disputed, should have been so recently recognised and yet hardly adopted; and that principles, the absurdity of which was exposed nearly three centuries since, should still find numerous and sturdy abettors. The rule which Bacon lays down with reference to penal statutes, "that any over-great penalty, beside the acerbity of it, deadens the execution of the law," was but lately denounced as visionary, novel, and unauthorized. It is, however, now generally admitted; and in this, as in many other cases, a deduction which at first requires the utmost exertion of the loftiest intellect, passes into common use, and becomes a familiar idea with minds of every class.

The objection which is founded upon the inconveniences and dangers of innovation, is answered with equal success; and in addition to the arguments that he employs to prove how much greater are the evils attendant upon the opposite course of refusing to amend perceived and acknowledged evils, lest some unknown and inexplicable mischief should thereby be produced, he shows from the examples of history that those who have been the most successful and useful legislators, and who have obtained the most durable renown, have been innovators of this sort. The cry against innovation, he observes, "is a commonplace against all noble reformations." He then suggests the method in which this should be done, by compiling authorized reports, in which all obsolete cases should be omitted, and those only retained which are recognised as authority at the time; and by omitting from the statute-book such acts as had been repealed, and repealing those which were unsuitable to the circumstances of the nation; by mitigating the penalty when it was too severe, though the principle of the law was good; and by reducing concurrent statutes to one clear and uniform law. Of the suggestions thus made, some have never been acted upon, and those that have, it has been reserved to the present day to witness their adoption. This, however,

only serves to place in a more striking point of view the superiority of Bacon to his contemporaries.

In

The legal reformations proposed or projected by Bacon were numerous. In his maiden speech before the house of commons, so early as 1592, when he was in his thirty-second year, he strenuously recommended the improvement of the law. Mr. Montagu has taken the pains to collect the various suggestions on this subject, which are contained in distinct treatises, or scattered over different works. There are no less than seven of the former, and his writings abound with the latter. When he became one of the privy council he frequently memorialized the king on the state of the laws. The short essays on Despatch, Judicature, and Innovation, comprise the substance of much jurisprudential reflection. 1605, in the Advancement of Learning, he promises to supply the want of a statesman-like treatise of laws. The pledge was not redeemed by the performance we have just noticed, but the "deficience" is partially supplied in the sixth book of the De Augmentis, published in 1623, under the title of "The Doctrine of Universal Justice." The passage in which the promise was first made, is almost of itself a performance. After objecting that philosophers made imaginary laws for imaginary commonwealths, and that lawyers wrote what was received as law, and not what ought to be law, he thus describes the wisdom of the law-maker. "The wisdom of a law-maker consisteth not only in a platform of justice, but in the application thereof, taking into consideration by what means laws may be made certain, and what are the causes and remedies of the doubtfulness and uncertainty of law; by what means laws may be made apt and easy to be executed, and what are the impediments and remedies in the execution of laws; what influence laws touching private right of meum and tuum have into the public state, and how they may be made apt and agreeable; how laws are to be penned and delivered, whether in texts or in acts, brief or large, with preambles or without; how they are to be pruned and reformed from time to time, and what is the best means to keep them from being too vast in volumes, or too full of multiplicity and crossness; how they are to be expounded, when upon causes emergent and judicially discussed, and when upon responses and conferences touching general points or questions; how they are to be pressed, rigorously or tenderly; how they are to be mitigated by equity and good conscience, and whether discretion and mixed law are to be mingled in the same courts, or kept apart in several courts; again, how the practice, profession, and erudition of the law is to be censured and governed; and many other points touching the administration, and, as I may term it, animation of laws.”

This is, truly, a magnificent delineation of a "deficience." Why did he rely upon the king for any countenance or assistance? He wanted a royal commission to aid in the practical and theoretical execution of this grand design; but the government did not pay the slightest attention to his oft-repeated solicitations, and, with the exception we are about to notice, the whole scheme perished with the projector.

The dissertation on Universal Justice, in the De Augmentis, is conducted aphoristically, by way of specimen merely, and in a single title only. There are ninety-seven aphorisms; but with the exception of the first six, which are of universal import, the rest are strictly confined to the discussion of a division of the seventh aphorism. His object was, by clearing up the subject of general law, to enable us to judge by any particular law. The introductory aphorisms set forth the fountains of injustice, the foundation of private right, its protection by public law, the cognizance of actions by law, the end of laws, and the difference of laws. The body of particular laws not being framed, we have his conception of a good law in Aphorism 7. "Now that may be esteemed a good law, which is, 1. Clear and certain in its sense; 2. Just in its command; 3. Commodious in the execution; 4. Agreeable to the form of government; and, 5. Productive of virtue in the subject." Of these several titles our author, according to his announcement, only handles the first-" on that