Francis Bacon.

The works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) online

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be attainted, and the tather covenant in consideration

Lamb. jus.


Maxims of the Law. 49

of natural love to stand seised of the land to his use,
this is good enough to raise an use, because the pri-
vity of natural affection remaineth.

So if a man be attainted and have charter of pardon,
and be returned of a jury between his son and I. S.
the challenge remaineth ; so may he maintain any suit
of his son, notwithstanding the blood be corrupt.
, So by the statute of 21 H. VIII. the ordinary ought
to commit administration of his goods that was at-
tainted and purchase his charter of pardon, to his
children, though born before the pardon, for it is no
question of inheritance : for if one brother of the half
blood die, the administration ought to be committed 5 Ed. 6.
to his other brother of the half blood, if there be no Adm -* 7 '
nearer by the father.

So if the uncle by the mother be attainted, pardoned, SSH. 6. 55.
and land descend from the father to the son within
age held in socage, the uncle shall be guardian in so-
cage ; for that savoureth so little of the privity of heir,
as the possibility to inherit shutteth out.

But if a feme tenant in tail assent to the ravisher,
and have no issue, and her cousin is attainted, and par-
doned, and purchaseth the reversion, he shall not enters Ed. 4.50.
for a forfeiture. For although the law giveth it not in
point of inheritance, but only as a perquisite to any
of the blood, so he be next in estate 3 yet the recom-
pence is understood for the stain of his blood, which
cannot be considered when it is once wholly corrupted

So if a villain be attainted, yet the lord shall have
the issues of his villain born before or after his at-
tainder; for the lord hath tiizmjure nature but as the
increase of a flock.

Query , Whether if the eldest son be attainted and p. N.,
pardoned, the lord shall have aid of his tenants to G -
make him knight, and it seemeth he shall; for the 87 e ^ is (
words of the writ are filium primogenitum, and not
filium et haredem, and the like writ hath purjile mar-
ritr who is no heir.


50 Maxims of the Law.


Rcceditur a placitis juris points, quam injurue et
delicta maneant impunita.

THE law hath many grounds and positive learn-
ings, which are not of the maxims and conclusions
of reason^ but yet are learnings received which the
Jaw hath set down and will not have called in ques-
tion : these may be rather called placita juris than re-
guke juris; with such maxims the law will dispense,
rather than crimes and wrongs should be unpunished,
quid salus populi suprema lex ; and salus populi is con-
tained in the repressing offences by punishment.

Fitz. N. B. Therefore if an advowson be granted to two, and
the heirs of one of them, and an usurpation be had,
they both shall join in a writ of right advowson ; and
yet it is a ground in law, that a writ of right lieth of
no less estate than of a fee simple; but because the
tenant for life hath no other several action in the law
given him, and also that the jointure is not broken,
and so the tenant in fee-simple cannot bring his writ
of right alone ; therefore rather than he should be de-
prived wholly of remedy, and this wrong unpunished,
he shall join his companion with him, notwithstanding
the feebleness of his estate.

*6Ed.3.2i. But if lands be given to two, and to the heirs of one
of them, and they lease in a prtfcipe by default, now
they shall not join in a writ of right, because the tenant
for life hath a several action, namely, a Quod ei defor-
ciat, in which respect the jointure is broken.

27 H. s. 13. So if tenant for life and his lessor join in a lease for
years, and the lessee commit waste, they shall join in
punishing the waste, and locus vast at us shall go to the
tenant for life, and the damages to him in the reversion ;
and yet an action of waste lieth not for the tenant for
life; but because he in the reversion cannot have it
alone, because of the mean estate for life, therefore ra-
ther than the waste shall be unpunished, they shall join.

45 Ed. s. s. So if two coparceners be, and they lease the land,

B.6.24. an< j one O f t hem die, anc j na th issue, and the lessee

commit waste, the aunt and the issue shall join in pu-

Maxims of the Law. 5 1

nishtng this waste, and the issue, shall recover the
moiety of the place wasted, and the aunt the other
moiety and the entire damages; and yet actio injuri-
arum moriiur cum persona, but in favor abilibus magis
atlenditur quod prodcst, quam quod nocet.

So if a man recovers by erroneous judgment, and 20Ed.2Fitz.
hath issue two daughters, and one of them is attainted, ^ debcent -
the writ of error shall be brought against both par-
ceners notwithstanding the privity fail in the one.

Also it is a positive ground, that the accessary in 33 EHZ.
felony cannot be proceeded with, until the principal
be tried ; yet if a man upon subtlety or malice set a
madman by some device upon another to kill him, and
he doth so ; now forasmuch as the madman is excused
because he can have no will nor malice, the law ac-
counteth the inciter as principal, though he be absent,
rather than the crime shall go unpunished.

So it is a ground in the law, that the appeal of mur- piu.Corone
der goeth not to the heir where the party murdered 4 - 59 -.

, . . r , , i i Ed. 4. M.'28.

hath a wife, nor to the younger brother where there is e.
an elder; yet if the wife murder her husband, because j^ 11 ^ lib ' 2 '
she is the party offender, the appeal leaps over to the
heir ; and so if the son and heir murder his father, it
goeth to the second brother.

But if the rule be one of the higher sort of maxims
that are reguLe rationales, and not positive* then the
law will rather endure a particular offence to escape
without punishment, than violate such a rule.

As it is a rule that penal statutes shall not be taken Cap. 12.
by equity, and the statute of 1 Ed. VI enacts that fj^aj!'
those that are attainted for stealing ot horses shall not
have their clergy, the judges conceived, that this did
not extend to him that stole but one horse, and there-
fore procured a new act for it 2 Ed. VI. cap. 33. And PI^. 467 -
they had reason for it, as I take the law ; for it is not Ed^Ti. 4 '
like the case upon the statute of Glocest. that gives an
action of waste against him that holds pro terminoviUe
vel annorum. It is true, if a man hold but for a year
he is within the statute ; for it is to be noted, that
penal statutes are taken strictly and literally only in
the point of defining and setting down the fact and

E 2

52 Maxims of the Laic.

the punishment, and in those clauses that concern them ;
and not generally in words that are but circumstances
and conveyances in putting of the case : and so the
diversity ; for if the law be, that for such an offence a
man shall lose his right hand, and the offender had his
right hand cut off in the wars before, he shall not lose his
Jett hand, but the crime shall rather pass unpunished
which the law assigned, than the law shall be extended ;
but if the statute of 1 Ed. VI. had been, that he that
should steal ahorse should be ousted of his clergy, then
there had been no question at all, but if a man had
stolen more horses than one, he had been within the
statute, quia omne majus continet in se minus.


Ron accipi dcbcnt vcrba in demons trationcm falsam,
qua competent in limitationcm veram.

THOUGH falsity of addition or demonstration doth
no hurt where you give a thing a proper name, yet
nevertheless if it stand doubtful upon the words, whe-
ther they import a false reference and demonstration,
or whether they be words of restraint that limit the
generality of the former name, the law will never
intend error or falshood.

10 EI;Z 2 And therefore if the parish of Hurst do extend into
Dyer,29i! the counties of Wiltshire and Berkshire, and I grant my
23 Eiiz. Dy. dose called Callis, situate and lying in the parish of
? Ed 6 Dy- Hurst in the county of Wiltshire, and the truth is,
56. ' that the whole close lieth in the county of Berkshire;
yet the law is, that it passeth well enough, because
there is a certainty sufficient in that I have given it a
proper name which the false reference doth not de-
stroy, and not upon the reason that these words,
" in the county of Wiltshire," shall be taken to go to
the parish only, and so to be true in some sort, and
not to the close, and so to be false : For if I had
granted oinnes terras mcas in parochia de Hurst in
com. Wiltshire, and I had no lands in Wiltshire but in
Berkshire, nothing had past.

Maxims of the Law. 53

But in the principal case, if the close called Callis J E! 7 -
had extended part into Wiltshire and part into Berk- is EH :.'
shire, then only that part had passed which lay in 29 R <v

So if I grant omnes ct singulas terras me as in tenura
1. D. quas perquisivi de I. N. ii\ indent ur a dimissionis
fact 1 I. B. specificat. If 1 have land wherein some of
these references are true, and the rest false, and no
land wherein they are all true, nothing passeth: as if
I have land in the tenure of I. D. and purchased of
I. N. but not specified in the indenture to I. B. or if I
have land which I purchased of I. N. and specified in
the indenture of demise to I. B. and not in the tenure
of I. D.

But if I have some land wherein all these demon-
strations are true, and some wherein part of them are
true and part false, then shall they be intended words
of true limitation to pass only those lands wherein all
these circumstances are true.


Licet disposhio de intcrcsse fuluro sit inutilis, tamen

fieri potest declaratio pncccdens qiuc soriiatur

effcctum intervenientc novo aclu.

THE law doth not allow of grants except there be
a foundation ot an interest in the grantor; for the law
that will not accept of grants of titles, or of things in
action which are imperfect interests, much less will it
allow a man to grant or incumber that which is no
interest at all, but merely future.

But of declarations precedent before any interest
vested the law doth allow, but with this difference, so
that there be some new act or conveyance to give life
and vigour to the declaration precedent.

Now the best rule of distinction between grants and
declarations is, that grants are never countermandable,
not in respect of the nature of the conveyance on the
instrument, though sometime in respect of the interest
granted they are, whereas declarations are evermore
countcrmandable in their natures..

54- Maxims of the Law.

And therefore if I grant unto you, that if you enter
"o Eiiz m ^ obligation to me of 100/. and after do procure me
19 H. 6. 62. such a lease, that then the same obligation to be void,
and you enter into such obligation unto me, and after-
wards do procure such a lease, yet the obligation is
simple, because the defeisance was made of that which
\vas not.

27id, 5. So if I grant unto you a rent charge out of white
acre, and that it shall be lawful for you to distrain in
all my other lands whereof I am now seised, and which
, I shall hereafter purchase ; although this be but a liberty
of distress, and no rent save only out of white acre,
yet as to the lands afterwards to be purchased the
clause is void.

29 Ed. 3. 6. So if a reversion be granted to I. S. and I.D. a stranger
24Eiiz. k v deed do grant to I. S. that if he purchase the parti-
cular estate, he doth atturne to his grantee, this is a
void atturnement, notwithstanding he doth afterwards
purchase the particular estate.

i3,i4Eiiz. But of declarations the law is contrary; as if the
20, 2i^Eiiz. Disseisee make a charter of feoffment to I. S. and a let-
ter of attorney to enter and make livery and seisin, and
deliver the deed of feoffment, and afterwards livery and
seisin is made accordingly, this is a good feoffment; and
yet he had nothing other than in right at the time of
the delivery of the charter; but because a deed of
feoffment is but matter of declaration and evidence,
M. ss. et and there is a new act which is the livery subsequent,
39Ehz. therefore it is good in law.

36 Eiiz. So if a man make a feoffment in fee to I. S. upon
condition toenfeoffl. N. within certain days, and there
are deeds made both of the first feoffment and the
second, and letters of attorney accordingly, and both
those deeds of feoffment and letters of attorney are de-
livered at a time, so that the second deed of feoffment
and letter of attorney are delivered when the first feoffee
hath nothing in the land; and yet if both liveries be
made accordingly, all is good.

So if I covenant with 1. S. by indenture, that before
such a day I will purchase the manor of D. and before
the same day I will levy a fine of- the same land, and

Maxims of the Law. 55

that the same fine shall be to certain uses which I ex-
press in the same indenture ; this indenture to lead
uses being but matter of declaration, and countermand-
able at my pleasure, will suffice, though the land be
purchased after ; because there is a new act to be done,
namely, the fine.

But if there were no new act, then otherwise it is; as 25 EH Z .
if I covenant with my son in consideration of natural 37 Eliz -
affection, to stand seised to his use of the lands which
I shall afterwards purchase, and I do afterwards pur-
chase, yet the use is void; and the reason is, because
there is no act, nor transmutation of possession follow-
ing to perfect this inception; for the use must be limit-
ed by the feofTbr, and not by the feoffee, and he had
nothing at the time of the covenant.

So if I devise the manor of D. by special name, of
which at that time I am not seised, and after I pur-
chase it, except I make some new publication of my
will, this devise is void ; and the reason is, because
that my death, which is the consummation of my will,
is the act of God, and not my act, and therefore no
such new act as the law requireth.

But if I grant unto I. S. authority by my deed to
demise for years the land whereof I am now seised, or
hereafter shall be seised ; and after I purchase lands,
and I. S. my attorney doth demise them : this is a good
demise, because the demise of my attorney is a new
act, and all one with a demise by myself.

But if I mortgage land, and after covenant with I. 21 Eiir.
S. in consideration of money which I receive of him,
that after I have entered for the condition broken, I
will, stand seised to the use of the same I. S. and I en-
ter, and this deed is enrolled, and all within the six
months, yet nothing passeth, because the enrolment is
no new act, but a perfective ceremony of the first deed
of bargain and sale ; and the law is more strong in that
case, because of the vehement relation which the en-
rolment hath to the time of the bargain and sale, at
what time he had nothing but a naked condition.

So if two joint tenants be, and one of them bargain 6 Ed. 6. Br,
and sell the whole land, and before- the enrolment his

56 Maxims of the Law.

companion dieth, nothing passeth of the moiety ac-
crued unto him by survivor.


In criminalibus sufficit generalis maliiia inteniionis
cum facto paris gradus.

ALL crimes have their conception in a corrupt in-
tent, and have their consummation and issuing in some
particular fact; which though it be not the fact at the
which the intention of the malefactor levelled, yet the
law giveth him no advantage of the error, if another
particular ensue of as high a nature.

isEiiz. Therefore if an impoisoned apple be laid in a place

case/" to impoison I. S. and I. D. cometh by chance and
com. 474. eateth it, this is murder in the principal that is actor,
and yet the malice in individuo was not against I. D.

' ^ ^ a ^" ie ^ ^ nc ^ a d or P en > an d come in by night
and rob an house, and be taken with the mainour,
and breaketh a door to escape, this is burglary ; yet
the breaking of the door was without any felonious in-
tent, but it is one entire act.

So if a caliver be discharged with a murderous in-
tent at I. S. and the piece break and striketh into the
eye of him that dischargeth it, and killeth him, he is

felo de sc y and yet his intention was not to hurt him-
self; for fdonia de se and murder are crimina paris
gradus. For if a man persuade another to kill himself,
and be present when he doth so, he is a murderer.

. But query ', if I. S. lay impoisoned fruit for some
ibi. is. 19. ot ^ er stranger his enemy, and his father or master
come and eat it, whether this be petty treason, be-
cause it is not altogether crimen paris gradus ?


Mandata licita accipiitnt s trie tarn interpretationem, sed
illicit a latam et extensivam.

IN the committing of lawful authority to another, a
man may limit it as strictly as it pleaseth him, and if

Maxims of I he Laze. 57

the party authorised do transgress his authority, though
it be but in circumstance expressed, it shall be void
in the whole act.

But when a man is author and mover to another to
commit an unlawful act, then he shall not excuse him-
self by circumstances not pursued.

Therefore if I make a letter of attorney to I. S. to^H.7. 19.
deliver livery and seisin in the capital messuage, and j6Ei.*Dy.
he doth it in another place of the land ; or between 33 ~-
the hours of two or three, and he doth it after or be-
fore ; or if I make the charter of feoffment to I. D. and
I. 13. and express the seisin to be delivered to I. D.
and my attorney deliver it to I. B. in all these cases the I^EI.DV.
act of the attorney, as to execute the estate, is void 5^, . Dy.
but if I say generally to I. D. whom I mean only to ;f^-
enfeofF, and my attorney make it to his attorney, it ^. H "
shall be intended, for it is a livery to him in law.

But on the other side, if a man command I. S. to
rob I. D. on Shooters-hill, and he doth it on Gads-
hill ; or to rob him such a day, and he doth it the next
day; or to kill I. 1). and he doth it not himself but
procureth I. B. to do it ; or to kill him by poison, and
he killeth him by violence ; in all these cases, although
the fact be not performed in circumstance, yet he is
accessary nevertheless.

But if it be to kill I. S. and he kill I. D. mistaking
him for 1. S. then the acts are distant in substance, and
he is not accessary.

And be it that the acts be of a differing degree, and
yet of a kind :

As if one bids I. S. to pilfer'away such a thing out
of a house, and precisely restrain him to do it some
time when he is gotten in without breaking of the
house, and yet he breaketh the house ; yet he is acces-
sary to the burglary : for a man cannot condition with
an unlawful act, but he must at his peri! take heed
how he put himself into another man's hands.

But if a man bid one to rob I. S. as he goeth to Stur- IOKM Z . m
bridge-fair, and he rob him in his house, the variance ^ |' 1S
seemcth to be of substance, and he is not accessary. 475.'

58 Maxims of the Law.


Dejlde el officio judich non recipitur qiucstio ; scd de
scientia> sive sit error juris sivefacli.

THE law doth so much respect the certainty of
judgments, and the credit and authority of judges, as
it will not permit any error to be assigned that im-
peacheth them in their trust and office, and in wilful
abuse of the same ; but only in ignorance, and mistak-
ing either of the law or of the case and matter in fact.
F. fc. And therefore if I will assign for error, that whereas
7H. 7.4. the verdict passed for me, the court received it con-
trary, and so gave judgment against me, this shall not
be accepted.

3H.6.Fitz. So if I will alledge for error, that whereas I. S. offer-
ed to plead a sufficient bar, the court refused it, and
drove me from it, this error shall not be allowed.
sM.Dy. But the greatest doubt is where the court doth de-
termine of the verity of the matter in fact ; so that it is
rather in point of trial than in point of judgment, whe-
ther it shall be examined in error.

t Mar.s. As if an appeal of maim be brought, and the court,
2SA.SS. M. fay ^ e ass j s t ance O f the chirurgeons, do judge it to be
21 H. 7. 40 a maim, whether the party grieved may bring a writ

of error ; and I hold the law to be he cannot,
b H. 4. 3. So if one of the Prothonotaries of the common pleas
bring an assize of his office, and alledge fees belong-
ing to the same office in certainty, and issue to be
iMar. Dy. taken upon these fees, this issue shall be tried by the
^ 9 ' Mar>D judges by way of examination, and if they determine
!63. it for the plaintiff, and he have judgment to recover
arrearages accordingly, the defendant can bring no
writ of error of this judgment, though the fees in truth
be other.

8 H. e. 2.3. So if a woman bring a writ of dower, and the tenant
r> y ." 2 plead her husband was alive, this shall be tried by
43 AS?. 26. proofs and not by jury, and upon judgment given on
M.- , e jth er 5^ no error lies.

Maxims of the Law. 59

So if mil tlel record be pleaded, which is to be tried 39 A SS . 9.
by the inspection of the record, and judgment be >>>Ed ' 4 ' 3 *
thereupon given, no error lies.

So if in an assize the tenant saith, he is comete dc 9n - 7 : 2 ;>
Dale, et nient nosrne counte, in the writ, this shall be '
tried by the records of the chancery, and upon judg-
ment given no error lieth.

So if a felon demand his clergy, and read well and 22 ASS. P ; .
distinctly, and the court who is judge thereof do put i<J' Ed 4 6
him from his clergy wrongfully, error shall never be
brought upon the attainder.

So if upon judgment given upon confession or de- c > A^. s.
fault, and the court do assess damages, the deJre&dantf" ; '
shall never bring a writ of error, though the damages
be outrageous.

And it seems in the case of maim, and some of the. si 11.7.3:3.
other cases, that the court may dismiss themselves ofJ}. Yss 9[
discussing the matter by examination, and put it to a
jury, and then the party grieved shall have his attaint ;
and therefore that the court that doth deprive a roan of
his action, should be subject to an action ; but that
notwithstanding the law will not have, as it was said
in the beginning, the judges called in question in the
point of their office when they undertake to discuss the
issue, and that is the true reason : for to say that the
reason of these cases should be, because trial by the 4T ASS. w.
court snould be peremptory as trial by certificate, asi 1 ^'^'"
by the bishop in' case of bastardy, or by the marshal of
the king, etc. the cases are nothing like ; for the rea-
son of those cases of certificate is, because if the court
should not give credit to the certificate, but should re-
examine it, they have no other mean but to write again
to the same lord bishop, or the same lord marshal,
which were frivolous, because it is not to be presumed
they would differ from their own former certificate;
whereas in these other cases of error the matter is
drawn before a superior court, to re-examine the errors
of an inferior court : and therefore the true reason is,
as was said, that to examine again that which the
court had tried were in substance to attaint the court.
And therefore this is a certain rule in errors, that

6 Maxims of the Law.

error in law is ever of such matters as do appear upon
record ; and error in fact is ever of such matters as are
not crossed by the record ; as to alledge the death of the
tenant at the time of the judgment given, nothing ap-
peareth upon the record to the contrary. So when any infant levies a fine, it appeareth not
upon the record of the fine that he is an infant, there-
fore it is an error in fact, and shall be tried by inspec-
tion during nonage.

But if a writ of error be brought in the King's Bench
of a fine levied by an infant, and the court by inspec-
tion and examination do affirm the fine, the infant,
though it be during his infancy, shall never bring a
writ of error in parliament upon this judgment ; not
rx 3; ^i k ut tnat error n>es after error, but because it doth not
9Eci.4.'l' a PP ear upon the record that he is now of full age,
therefore it can be no error in fact. And therefore if
a man will assign for error that fact, that whereas the
judges gave judgment for him, the clerks entred it in the
roll against him, this error shall not be allowed ; and
yet it doth not touch the judges but the clerks : but
the reason is, if it be an error, it is an error in fact ;
and you shall never alledge an error in fact contrary to

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