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partly such as make strongly against them : for ss to
that, that writs of Habeas Corpus under the great
seal of England have gone to Gascoigne, it is no
manner of proof ; for that the King's writs, which are
mandatory, and not writs of ordinary justice, may go
to his subjects into any foreign parts whatsoever, and
under that seal it pleaseth him to use. And as to that,
that some acts of parliament have been cited, wherein
the parliaments of England have taken upon them to
order matters of Gascoigne; if those statutes be well
looked into; nothing doth more plainly convince the



Case of the Post-Nati of Scotland. 361

contrary, for they intermeddle with nothing but that
that concerneth either the English subjects personally,
or the territories of England locally, and never the
subjects of Gascoigne ; for look upon the statute of
27 E. III. cap. 5. there it is said, that there shall be
no forestalling of wines. But by whom ? Only by
English merchants ; not a word of the subjects of Gas-
coigne, and yet no doubt they might be offenders in
the same kind.

So in the sixth chapter it is said, that all merchants
Gascoignes may safely bring wines into what part it
shall please them : here now are the persons of Gas-
coignes ; but then the place whither ? Into the realm
of England. And in the seventh chapter, that erects
the ports of Bourdeaux and Bayonne for the staple
towns of wine ; the statute ordains " that if any,"
but who ? " English merchant, or his servants, shall
<c buy or bargain other where, his body shall be
" arrested by the steward of Gascoigne, or the con-
" stable of Bourdeaux :" true, for the officers of Eng-
land could not catch him in Gascoigne ; but what shall
become of him, shall he be proceeded with within
Gascoigne? No, but he shall be sent over into England
into the Tower of London.

And this doth notably disclose the reason of that
custom which some have sought to wrest the other
way : that custom, I say, whereof a form doth yet
remain, that in every parliament the King doth ap-
point certain committees in the upper-house to receive
the petitions of Normandy, Guienne, and the rest ;
which, as by the former statute doth appear, could not
be for the ordering of the governments there, but for
the liberties and good usage of the subjects of those
parts when they came hither, or vice versa 9 for the re-
straining of the abuses and misdemeanors of our sub*
jects when they went thither.

Wherefore I am now at an end. For us to speak of
the mischiefs, I hold it not fit for this place, lest we
should seem to bend the laws to policy, and not to
take them in their true and natural sense. It is enough



362 Case of the Post-Nati of Scotland,

that every man knows, that it is true of these two
kingdoms, which a good father said of the churches
of Christ : si inseparabiles insupcrabiles. Some things
1 may have forgot, and some things, perhaps I may
have forgot willingly ; for I will not press any opinion
or declaration of late time which may prejudice
the liberty of this debate ; but ex diet is, et ex non
dictis, upon the whole matter I pray judgment for the
plaintiff.



[ 363 ]

A

PROPOSITION TO HIS MAJESTY

BY

SIR FRANCIS BACON, KNIGHT,

HIS MAJESTY'S ATTORNEY GENERAL, AND ONE OF HIS
PRIVY COUNCIL;

TOUCHING THE

COMPILING AND AMENDMENT OF THE
LAWS OF ENGLAND.



YOUR Majesty, of your favour, having made
me Privy-Counsellor, and continuing me in the place
of your Attorney- General, which is more than was
these hundred years before, I do not understand
it to be, that by putting off the dealing in causes be-
tween party and party, I should keep holy-day the
more ; but that I should dedicate my time to your
service with less distraction. Wherefore, in this plen-
tiful accession of time, which I have now gained, I
take it to be my duty, not only to speed your com-
mandments and the business of my place; but to me-
diate and to excogitate of myself, wherein I may best,
by my travels, derive your virtues to the good of your
people, and return their thanks and increase of love
to you again. And after I had thought of many things,
I could find, in my judgment, none more proper for
your Majesty as a master, nor for me as a workman,
than the reducing and recompiling of the laws of
England.

Your Majesty is a King blessed with posterity; and
these Kings sort best with acts of perpetuity, when
they do not leave them, instead of children; but trans-
mit both line and merit to future generations. You
are a great master in justice and judicature, and it
were pity that the fruit of that virtue should die with
you. Your Majesty also rcigneth in learned times ;



364 A Proposal for amending the Laws of England.

the more, in regard of your own perfections and pa-
tronage of learning; and it hath been the mishap of
works of this nature, that the less learned time hath
wrought upon the more learned, which now will not
be so. As for myself, the law is my profession, to
which I am a debtor. Some little helps I may have
of other learning, which may give form to matter; and
your Majesty hath set me in an eminent place, whereby
in a work, which must be the work of many, I may
the better have coadjutors. Therefore, not to hold
your Majesty with any long preface, in that which I
conceive to be nothing less than words, I will proceed
to the matter : which matter itself nevertheless re-
quireth somewhat briefly to be said, both of the dig-
nity, and likewise of the safety, and convenience of
this work: and then to -go to the main : that is to say,
to shew how the work is to be done : which incidently
also will best demonstrate, that it is no vast nor specu-
lative thing, but real and feasible. Callisthenes, that
followed Alexander's court, and was grown in some dis-
pleasure with him, because he could not well brook
the Persian adoration ; at a supper, which with the
Grecians was ever a great part talk, was desired, be-
cause he was an eloquent man, to speak of some
theme ; which he did, and chose for his theme the
praise of the Macedonian nation ; which though it
were but a filling thing to praise men to their faces,
yet he did it with such advantage of truth, and avoid-
ance of flattery, and with such life, as the hearers
were so ravished with it that they plucked the roses
off from their garlands, and threw them upon him ; as
the manner of applauses then was. Alexander was
not pleased with it, and by way of discountenance
said, It was easy to be a good orator in a pleasing
theme : " But," saith he to Callisthenes, " turn your
" stile, and tell us now of our faults, that we may
" have the profit, and not you only the praise ;" which
he presently did with such a force, and so piquantly,
that Alexander said, The goodness of his theme had
made him eloquent before ; but now it was the malice
of his heart, that had inspired him.



A Proposal for amending the Laivs of England. 3t>3

1. Sir, I shall not fall into either of those two ex-
tremes, concerning the laws of England ; they com-
mend themselves best to them that understand them ;
and your Majesty's chief justice of your bench hath in
his writings magnified them not without cause : cer-
tainly they are wise, they are just and moderate laws;
they give to God, they give to Caesar, they give to the
subjects, that which appertained. It is true, they
are as mixt as our language, compounded of British,
Roman, Saxon, Danish, Norman customs. And as
our language is so much the richer, so the laws are
the more complete: neither doth this attribute less to
them, than those that would have them to have stood
out the same in all mutations 3 for no tree is so good
first set, as by transplanting.

2. As for the second extreme, I have nothing to do
with it by way of taxing the laws. I speak only by
way of perfecting them, which is easiest in the best
things : for that which is far amiss, hardly receiveth
amendment , but that which hath already, to that
more may be given. Besides, what I shall propound
is not to the matter of the laws, but to the manner of
their registry, expression, and tradition : so that it
giveth them rather light than any new nature. This
being so, for the dignity of the work I know scarcely
where to find the like : for surely that scale, and those
degrees of sovereign honour, are true and rightly
marshalled : First the founders of states ; then the
lawgivers ; then the deliverers and saviours after long
calamities ; then the fathers of their countries, which
are just and prudent princes; and lastly, conquerors,
which honour is not to be received amongst the rest,
except it be where there is an addition of more coun-
try and territory to a better government than that was
of the conquered. Of these, in my judgment, your
Majesty may with more truth and flattery be infilled
to the first, because of your uniting of Britain and
planting Ireland ; both which savour of the founder.
That which I now propound to you, may adopt you
also into the second : lawgivers have been called prin-
cipes pcrpetui ; because as bishop Gardiner said in a



?66 A Proposal for amending the Laics of England.

bad sense, that he would be bishop an hundred years-
after his death, in respect of the long leases he made :
so lawgivers are still Kings and Rulers after their de-
cease, in their laws. But this work, shining so in itself,
needs no taper. For the safety and convenience
thereof, it is good to consider, and to answer those ob-
jections or scruples which may arise or be made against
this work.

Obj. I. That it is a thing needless ; and that the law,
as it now is, is in good estate comparable to any fo-
reign law : and that it is not possible for the wit of
man, in respect of the frailty thereof, to provide against
the incertainties and evasions, or omissions of law.

Besp. For the comparison with foreign laws, it is in
vain to speak of it ; for men will never agree about it.
Our lawyers will maintain for our municipal laws;
civilians, scholars, travellers, will be of the other
opinion.

But certain it is, that our laws, as they now stand,
are subject to great uncertainties, and variety of opi-
nion, delays, and evasions: whereof ensueth,

1. That the multiplicity and length of suits is great.

2. That the contentious person is armed, and the
honest subject wearied and oppressed.

3. That the judge is more absolute ; who, in doubt-
ful cases, hath a greater stroke and liberty.

4. That the chancery courts are more filled, the re-
medy of law being often obscure and doubtful.

5. That the ignorant lawyer shroudeth his ignorance
of law, in that doubts are so frequent and many,

6. That mens assurances of their lands and estates
by patents, deeds, wills, are often subject to question,
and hollow ; and many the like inconveniencies.

It is a good rule and direction, for that all laws, sc-
cundum magis et minus* do participate of uncertain-
ties, that followeth : Mark, whether the doubts that
arise, are only in cases not of ordinary experience ;
or which happen every day. If in the first only,
impute it to the frailty of man's foresight, that can-
not reach by law to all cases ; but, if in the latter.
be assured there is a fault in the law. Of this I say



A Proposal for amending the Laics of England. 367

no more, but that, to give every man his due, had it
not been for Sir Edward Coke's Reports, which though
they may have errors, and some peremptory and ex-
trajudicial resolutions more than are warranted; yet
they contain infinite good decisions, and rulings over
cases: the law, by this time, had been almost like a
ship without ballast; for that the cases of modern
experience are fled from those that are adjudged and
ruled in former time.

But the necessity of this work is yet greater in the
statute law. For first, there are a number of en-
snaring penal laws, which lie upon the subject; and if
in bad times they should be awaked and put in exe-
cution, would grind them to powder

There is a learned civilian that expoundeth the curse
of the prophet, Pluet super eos laqueos, of a multi-
tude of penal laws, which are worse than showers of
hail or tempest upon cattle, for they fall upon men.

There are some penal laws fit to be retained, but
their penalty too great ; and it is ever a rule, That any
over-great penalty, besides the acerbity of it, deadens
the execution of the law.

There is a further incovenience of penal laws, ob-
solete, and out of use ; for that it brings a gangrene,
neglect, and habit of disobedience upon other whole-.
some laws, that are fit to be continued in practice and
execution ; so that our laws endure the torment of
Mezentius :

The living die in the arms of the dead.

Lastly, There is such an accumulation of statutes
concerning one matter, and they so cross and intri-
cate, as the certainty of law is lost in the heap ; as
your Majesty had experience last day upon the point,
Whether the incendiary of Newmarket should have
the benefit of his clergy.

OBj. II. That it is a great innovation \ and innova-
tions are dangerous beyond foresight.

Besp. All purgings and medicines, either in the
civil or natural body, are innovations : so as that argu-
ment is a common place against all noble reformations.



SC8 A Proposal for amending the Laws of England.

But the truth is, that this work ought not to be termed
or held for any innovation in the suspected sense. For
those are the innovations which are quarreled and
spoken against, that concern the consciences, estates,
and fortunes of particular persons : but this of general
ordinance pricketh not particulars, but passeth sine
strepitu. Besides, it is on the favourable part ; for it
easeth, it presseth not: and lastly, it is rather matter
of order and explanation than of alteration. Neither
is this without precedent in former governments.

The Romans, by their Decemvirs, did make their
twelve tables; but that was indeed a new enacting
or constituting of laws, not a registring or recompiling ;
and they were made out of the laws of the Grecians,
not out of their own customs.

In Athens they had Sexviri, which were standing
commissioners to watch and to discern what Jaws
waxed improper for the time ; and what new law did,
in any branch, cross a former law, and so ex qfficio,
propounded their repeals.

King Lewis XL of France, had it in his intention
to have made one perfect and uniform law, out of
the civil law Roman, and the provisional customs of
France.

Justinian the Emperor, by commissions directed to
divers persons learned in the laws, reduced the Roman
laws from vast-ness of volume, and a labyrinth of un-
certainties, unto that course of the civil law which is
now in use. I find here at home of late years, that
King Henry VIII. in the twenty-seventh of his reign,
was authorised by parliament to nominate thirty-two
commissioners, part ecclesiastical, part temporal, to
purge the canon law, and to make it agreeable to the
law of God, and the law of the realm; and the same
was revive'd in the fourth year of Edward VI. though
neither took effect.

For the laws of Lycurgus, Solon, Minos, and others
of ancient time, they are not the worse, because gram-
mar scholars speak of them : but things too ancient
wax children with us again.

Edgar, the Saxon King, collected the laws of this



A Proposal for amending the Laws of England. 369

kingdom, and gave them the strength of a faggot
bound, which formerly were dispersed.

The statutes of King Edward the first were funda-
mental. But, I doubt, I err in producing so many ex-
amples : for, as Cicero saith to Caesar, so may I say to
your Majesty; Nilvulgare te dignum videre possit.

Obj. III. In this purging of the course of the com-
mon laws and statutes, much good may be taken
away.

Rcsp. In all purging, some good humours may pass
away ; but that is largely recompensed by lightening
the body of much bad.

Obj. IV. Labour were better bestowed, in bringing .
the common laws of England to a text law, as the
statutes are, and setting both of them down in method
and by titles.

Resp. It is too long a business to debate, whether
lex scripta, aut non scripta, a text law, or customs
well registred, with received and approved grounds
and maxims, and acts and resolutions judicial, from
time to time duly entered and reported, be the better
form of declaring and authorising laws. It was the
principal reason or oracle of Lycurgus, that none of
his laws should be written. Customs are laws written
in living tables, and some traditions the church doth
not disauthorise. In all sciences they are the soundest,
that keep close to particulars ; and, sure I am, there
are more doubts that rise upon our statutes, which are
a text laWj than upon the common law, which is no
text law. But, howsoever that question be deter-
mined, I dare not advise to cast the law into a new
mold. The work, which I propound, tendeth to
pruning and grafting the law, and not to plowing tip
and planting it again ; for such a remove I should hold
indeed for a perilous innovation.

Obj. V. It will turn the judges, counsellors of law,
and students of law to school again, and make them
to seek what they shall hold and advise for law ; and
it will impose a new- charge upon all lawyers to fur-
nish themselves with new books of law.

Resp. For the former of these, touching the new
VOL, iv. B b



370 A Proposal for amending the Laws of England.

labour, it is true it would follow, if the law were new
molded into a text law ; for then men must be new
to begin, and that is one of the reasons for which I
disallow thai: course.

But in the way that I shall now propound, the entire
body and substance of law shall remain, only dis-
charged of idle and unprofitable or hurtful matter ;
and illustrated by order and other helps, towards the
better understanding of it and judgment thereupon.

For the latter, touching the new charge, it is not
worthy the speaking of in a matter of so high im-
portance ; it might have been used of the new trans-
lation of the Bible, and such like works. Books must
follow sciences, and not sciences books.

The work THIS work is to be done, to use some few words,
itself; and w hi cn j s the language of action and effect, in this

the way to

reduce and manner.

^ consisteth of two parts; the digest and recom-
piling of the common laws, and that of the statutes.
In the first of these, three things are to be done :

1. The compiling of a book De antiquitatibus juris.

2. The reducing or perfecting of the course or corps
of the common laws.

3. The composing of certain introductive and auxi-
liary books touching the study of the laws.

For the first of these, all ancient records in your
Tower, or elsewhere, containing acts of parliament,
letters patent, commissions, and judgments, and the
like, are to be searched, perused, and weighed : and
out of these are to be selected, those that are of most
worth and weight, and in order of time, not of titles,
for the more conformity with the year-books, to be
set down and registred, rarely in hac verba ; but sum-
med with judgment, not omitting any material
part ; these are to be used for reverend precedents,
but not for binding authorities.

For the second, which in the main there is to be
made a perfect course of the law in serie temporis, or
year-books, as we call them, from Edward the First
to this day : in the compiling of this course of law,
or year-books, the points following are to be observed.



A Proposal for amending the Laws of England. 371

First, All cases which are at this day clearly no law,
but constantly ruled to the contrary, are to be left
out; they do but fill the volumes, and season the
wits of students in a contrary sense of law. And so
likewise all cases, wherein that is solemnly and long
debated, whereof there is now no question at all, are
to be entered as judgments only, and resolutions, but
without the arguments, which are now become but
frivolous : yet for the observation of the deeper sort of
lawyers, that they may see how the law hath altered,
out of which they may pick sometimes good use, I do
advise, that upon the first in time of those obsolete
cases there was a memorandum set, that at that time
the law was thus taken, until such a time, etc.

Secondly, Homonymitf, as Justinian calleth them,
that is, cases merely of iteration or repetition, are to
be purged away : and the cases of identity, which are
best reported and argued, to be retained instead of the
rest; the judgments nevertheless to be set down, every
one in time as they are, but with a quotation or refer-
ence to the case where the point is argued at large :
but if the case consist part of repetition, part of new-
matter, the repetition is only to be omitted.

Thirdly, as to the Antinomies, cases judged to the
contrary, it were too great a trust to refer to the judg-
ment of the composers of this work, to decide the law
either way, except there be a current stream of judg-
ments of later times ; and then I reckon the contrary
cases amongst cases obsolete, of which I have spoken
before : nevertheless this diligence would be used, that
such cases of contradiction be specially noted and
collected, to the end those doubts, that have been
so long militant, may either, by assembling all the
judges in the exchequer chamber, or by parliament,
be put into certainty. For to do it, by bringing them
in question under feigned parties, is to be disliked.
Niliil habcat forum ex sccna.

Fourthly, All idle queries, which are but seminaries
of doubts, and uncertainties, are to be left out and
omitted, and no queries set down, but of great doubts
well debated, and left undecided for difficulty ; but

B b 2



72 A Proposal for amending the Laws of England.

no doubting or upstarting queries, which though they
be touched in argument for explanation, yet were
better to die than to be put into the books.

Lastly, cases reported with too great prolixity would
be drawn into a more compendious report ; not in the
nature of an abridgment, but tautologies and imper-
tinences to be cut off: as for misprinting, and insen-
sibly reporting, which many times confound the stu-
dents, that will be obiter amended ; but more princi-
pally, if there be any thing in the report which is not
well warranted by the record, that is also to be rec-
tified : the course being thus compiled, then it resteth
but for your Majesty to appoint some grave and sound
lawyers, with some honourable stipend, to be * re-
porters for the time to come, and then this is settled
for all times.

FOR the auxiliary books that conduce to the study
and science of the law, they are three : Institutions ;
a treatise DC regulis juris ; and a better book De vtr-
borum significationibus, or terms of the law. For the
Institutions, I know well there be books of introduc-
tions, wherewith students begin, of good worth, espe-
cially Littleton and Fitzherbert's Natura breviuni -, but
they are no ways of the nature of an institution ; the
office whereof is to be a key and general preparation
to the reading of the course. And principally it ought
to have two properties ; the one a perspicuous and
clear order or method ; and the other, an universal la-
titude or comprehension, that the students may have
a little prenotion of every thing, like a model towards
a great building. For the treatise De regulis juris, I
hold it, of all other things, the most important to the
health, as I may term it, and good institutions of any
laws : it is indeed like the ballast of a ship, ta keep
all upright and stable - 9 but I have seen little in this
kind, either in our law or other laws, that satisfieth

* This constitution of Reporters I obtained of the King, after I
was Chancellor; and there are two appointed with lool. a year
a-piece stipend.



A Proposal for amending the Laws of England.'' 373

me. The naked rule or maxim doth not the effect :
It must be made useful by good differences, amplia-
tions, and limitations, warranted by good authorities ;
and this not by raising up of quotations and references,
but by discourse and deducement in a just tractate.
In this I have travelled myself, at the first more cur-



sorily*, since with more diligence, and will go on * s ^* b
with it, if God and your Majesty will give me leave.
And I do assure your Majesty, I am in good hope,
that when Sir Edward Coke's Reports, and my rules
and decisions shall come to posterity, there will be,
whatsoever is now thought, question, who was the
greatest lawyer ? For the books Of the terms of law,
there is a poor one, but I wish a diligent one, wherein



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 31 of 46)