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their mechanical industry, were it not also that there was a concurrence in them of this last reason, which is, that their wealth was dispersed in many hands, and not engrossed into few; and those hands were not much of the nobility, but most and generally of inferior conditions.

To make application of this part concerning treasure to your majesty's kingdoms:

First, I suppose I cannot err, that as to the endowment of your crown, there is not any crown of Europe, that hath so great a proportion of demesne and land revenue. Again, he that shall look into your prerogative shall find it to have as many streams to feed your treasury, as the prerogative of any of the said kings, and yet without oppression or taxing of your people. For they be things unknown in many other states, that all rich mines should be yours, though in the soil of your subjects; that all wardships should be yours, where a tenure in chief is, of lands held of your subjects; that all confiscations and escheats of treason should be yours, though the tenure be of the subject; that all actions popular, and the fines and casualties thereupon may be informed in your name, and should be due unto you, and a moiety at the least where the subject himself informs. And, further, he that shall look into your revenues at the ports of the sea, your revenues in courts of justice, and for the stirring of your seals, the revenues upon your clergy, and the rest, will conclude, that the law of England studied how to make a rich crown, and yet without levies upon your subject. For merchandising, it is true, it was ever by the kings of this realm despised, as a thing ignoble and indign for a king, though it is manifest, the situation and commodities of this island considered, it is infinite, what your majesty might raise, if you would do as a King of Portugal doth, or a Duke of Florence, in matter of merchandise. As for the wealth of the subject:* To proceed to the articles affirmative, the first

was.

That the true greatness of an estate consisteth in the natural and fit situation of the region or place.

Wherein I mean nothing superstitiously touching the fortunes or fatal destiny of any places, nor philosophically touching their configuration with the superior globe. But I understand proprieties and respects merely civil and according to the nature of human actions, and the true considerations of the estate. Out of which duly weighed, there doth arise a triple distribution of the fitness of a region for a great monarchy. First, that it be of hard access. Secondly, that it be seated in no extreme angle, but commodiously in the midst of many regions. And, thirdly, that it be maritime, or at the least upon great navigable rivers; and be not inland or mediterrane. And that these are not

*Memorandum, Here was a blank side left to continue the

sense.

conceits, but notes of event, it appeareth manifestly, that all great monarchies and states have been seated in such manner, as if you would place them again, observing these three points which I have mentioned, you cannot place them better; which shows the pre-eminence of nature, unto which human industry or accident cannot be equal, especially in any continuance of time. Nay, if a man look into these things, more attentively, he shall see divers of these seats of monarchies, how fortune hath hovered still about the places, coming and going only in regard of the fixed reason of the conveniency of the place, which is immutable. And, therefore, first we see the excellent situation of Egypt; which seemeth to have been the most ancient monarchy, how conveniently it stands upon a neck of land, commanding both seas on either side, and embracing, as it were with two arms, Asia and Afric, besides the benefit of the famous river of Nilus. And, therefore, we see what hath been the fortune of that country, there having been two mighty returns of fortune, though at great distance of time; the one in the times of Sesostris, and the other in the empire of the Mamalukes, besides the middle greatness of the kingdom of the Ptolemys, and of the greatness of the caliphs and sultans in the latter times. And this region, we see likewise, is of strait and defensible access, being commonly called of the Romans, "Claustra Ægypti." Consider in like manner the situation of Babylon, being planted most strongly in regard of lakes and overflowing grounds between the two great navigable rivers of Euphrates and Tigris, and in the very heart of the world; having regard to the four cardines" of east and west and northern and southern regions. And, therefore, we see, that although the sovereignty alter, yet the seat still of the monarchy remains in that place. For after the monarchies of the Kings of Assyria, which were natural kings of that place, yet when the foreign Kings of Persia came in, the seat remained. For, although the mansion of the persons of the Kings of Persia were sometimes at Susa, and sometimes at Ecbatana, which were termed their winter and their summer parlours, because of the mildness of the air in the one, and the freshness in the other; yet the city of estate continued to be Babylon. Therefore, we see, that Alexander the Great, according to the advice of Calanus the Indian, that showed him a bladder, which, if it were borne down at one end, would rise at the other, and therefore wished him to keep himself in the middle of his empire, chose accordingly Babylon for his seat, and died there. And, afterwards, likewise in the family of Seleucus and his decendants, kings of the east, although divers of them, for their own glory, were founders of cities of their own names, as Antio

chia, Seleucia, and divers others, which they sought by all means to raise and adorn, yet the

greatness still remained according unto nature | to the seas, and in the middle of the world, we with the ancient seat. Nay, further on, the same remained during the greatness of the Kings of Parthia, as appeareth by the verse of Lucan, who wrote in Nero's time.

"Cumque superba staret Babylon spolianda trophaeis." And after that, again it obtained the seat of the highest caliph or successors of Mahomet. And at this day, that which they call Bagdat, which joins to the ruin of the other, containeth one of the greatest satrapies of the Levant. So again Persia, being a country imbarred with mountains, open

see hath had three memorable revolutions of great monarchies. The first in the time of Cyrus; the second in the time of the new Artaxerxes, who raised himself in the reign of Alexander Severus, Emperor of Rome; and now of late memory, in Ismael the sophy, whose descendants continue in empire and competition with the Turks to this day.

So, again, Constantinople, being one of the most excellentest seats of the world, in the confines of Europe and Asia.

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 | other learning, which may give form to matter; 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 between 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 plentiful accession of time, which I have now gained, I take it to be my duty, not only to speed your commandments and the business of my place, but to meditate 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 transmit 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 reigneth in learned times: the more, in regard of your own perfections and patronage 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

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, requireth somewhat briefly to be said, both of the dignity, and likewise of the safety, and convenience of this work: and then to go to the main: that is to say, to show how the work is to be done: which incidently also will best demonstrate, that it is no vast nor speculative thing, but real and feasible. Callisthenes, that followed Alexander's court, and was grown in some displeasure 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, because 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 avoidance 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 style, 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

U

piquantly, that Alexander said, The goodness of | to provide against the uncertainties and evasions, or omissions of law.

his theme had made him eloquent before; but now it was the malice of his heart that had inspired him.

1. Sir, I shall not fall into either of those two extremes, concerning the laws of England; they commend 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: certainly they are wise, they are just and moderate laws; they give to God, they give to Cæsar, they give to the subjects, that which appertaineth. 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; 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 country 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 entitled 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 "principes perpetui ;" because, as Bishop Gardiner said in a bad sense, that he would be bishop a hundred years after his death, in respect of the long leases he made: so lawgivers are still kings and rulers after their decease, 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 objections, 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 foreign law; and, that it is not possible for the wit of man, in respect of the frailty thereof,

Resp. 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 opinion, 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 doubtful cases, hath a greater stroke and liberty. 4. That the Chancery Courts are more filled, the remedy 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 men's assurances of their lands and estates by patents, deeds, wills, are often subject to question, and hollow; and many the like inconveniences.

It is a good rule and direction, for that all laws, "secundum majus et minus," do participate of uncertainties, 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 cannot reach by law to all cases; but, if in the latter, be assured there is a fault in the law. Of this I say 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 extra-judicial resolutions more than are warranted; yet, they contain infinite good decisions, and rulings over of 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 ensnaring penal laws, which lie upon the subject; and if, in bad times, they should be awaked, and put in execution, would grind them to powder.

There is a learned civilian that expoundeth the curse of the prophet, "Pluet super eos laqueos,” of a multitude 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 overgreat penalty, besides the acerbity of it, deadens the execution of the law.

There is a further inconvenience of penal laws, obsolete, and out of use; for that it brings a gan

grene, neglect, and habit of disobedience upon other wholesome 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 intricate, 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, innovations are dangerous beyond foresight.

Resp. All purgings and medicines, either in the civil or natural body, are innovations: so as that argument is a common place against all noble reformations. 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 quarrelled 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 registering or recompiling; and they were made out of the laws of the Grecians, not out of their own customs.

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

The statutes of King Edward the First were fundamental. But, I doubt, I err in producing so many examples: for, as Cicero saith to Cæsar, so may I say to your majesty; "Nil vulgare te dignum videri possit."

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

Resp. 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 registered, 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 authorizing 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 disauthorize. 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 law, than upon the common law, which is no text law. But, howsoever that question be determined, I dare not advise to cast the law into a new mould. The work, which I propound, tendeth to pruning and grafting the law, and not to ploughing up and plant

In Athens they had sexviri, which were standing commissioners to watch and to discern what laws waxed improper for the time; and what newing it again; for such a remove I should hold law did, in any branch, cross a former law, and so, "ex officio," propounded their repeals.

King Lewis XI. 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 commission directed to divers persons learned in the laws, reduced the Roman laws from vastness of volume, and a labyrinth of uncertainties, 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 authorized 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 revived in the fourth year of Edward VI., though neither took effect.

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 furnish themselves with new books of law.

Resp. For the former of these, touching the new labour, it is true it would follow, if the law were new moulded into a text law; then men must be new to begin, and that is one of the reasons for which I disallow that course.

But in the way that I shall now propound, the entire body and substance of law shall remain, only discharged 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 For the laws of Lycurgus, Solon, Minos, and worthy the speaking of in matter of so high imothers of ancient time, they are not the worse, be-portance; it might have been used of the new cause grammar scholars speak of them: but things too ancient wax children with us again. Edgar, the Saxon king, collected the laws of books.

translation of the Bible, and such like works. Books must follow sciences, and not sciences

THIS work is to be done, to use some few words, which is the language of action and effect, in this manner.

It consisteth of two parts; the digest or recompiling of the common laws, and that of the sta

tutes.

In the first of these, three things are to be dene:

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 auxiliary books touching the study of the laws.

the judgment of the composers of this work, to decide the law either way, except there be a current stream of judgments 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. "Nihil habeat forum ex scena."

great doubts well debated, and left undecided for difficulty; but 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.

For the first of these, all ancient records in Fourthly, All idle queries, which are but semiyour Tower, or elsewhere, containing acts of par- naries of doubts, and uncertainties, are to be left liament, letters patents, commissions, and judg-out and omitted, and no queries set down, but of ments, 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 registered, rarely in "hæc verba;" but summed with judgment, not omitting any material part; these are to be used for reverend precedents, but not for binding authorities.

For the second, which is 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.

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 impertinences to be cut off: as for misprinting, and insensible reporting, which many times confound the students, that will be "obiter" amended; but more principally, if there be any thing in the report which is not well warranted by the record, that is also to be rectified: 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 reporters* for the time to come, and then this is settled for all times.

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 obso-ton and Fitzherbert's "Natura brevium;" but lete cases there was a memorandum set, that at that time the law was thus taken, until such a time, &c.

Secondly, Homonymiæ, as Justinian calleth them, that is, cases merely of iteration and 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 reference 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 Antinomiæ, cases judged to the contrary, it were too great a trust to refer to

FOR the auxiliary books that conduce to the study and science of the law, they are three: Institutions; a treatise "De regulis juris;" and a better book "De verborum significationibus," or terms of the law. For the Institutions, I know well there be books of introductions, wherewith students begin, of good worth, especially Little

they are noways 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, a universal latitude 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,

*This constitution of reporters I obtained of the king, after I was chancellor; and there are two appointed with 1007. a year apiece stipend.

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