CHAPTER SEVEN Francis Bacon

At the outset of his career, in the first sentence of his first substantial literary endeavor, Francis Bacon (1561-1626) wrote:

I hold euery man a debtor to his profession, from the which, as men of course doe seeke to receiue countenance & profit, so ought they of duty to endeauour themselues by way of amends to bee a helpe and ornament thereunto; this is performed in some degree, by the honest and liberall practice of a profession, when men shall carry a respect not to descend into any course that is corrupt, and vnworthy thereof, and preserue themselues free from the abuses wherewith the same profession is noted to bee infected; but much more is this performed, if a man bee able to visite and strengthen the roots and foundation of the sci­ence it selfe; thereby not onely gracing it in reputation and dignity, but also amplifying it in perfection and substance.¹

Very nearly the last words he wrote—appropriately, in his will, on Decem­ber 19, 1625—four months before his death from pneumonia, were “I be­queath my soul to God above.

Bacon's scholarly undertakings generally remained unachieved, not least his ambitious and varied contributions to philosophy, especially natu­ral philosophy. His Advancement of Learning (1605), even after enlargement and translation into Latin as De Augmentis Scientarum (1623), remained undone at his death. De Augmentis was to be the first part of his Great In- stauration, or Great Renewal, a radically comprehensive rethinking of the entire realm of philosophy directed at understanding and commanding na­ture to ends as much pragmatic and material as pure and ideal. The second part of the Great Instauration, published in 1620 and Bacon's single most significant philosophical work, was Novum Organum. The title constituted a little conceit and a large arrogation in its allusion to Aristotle's Organon, or instrument of logical method. It also did not quite deliver all the nov­elty the title promised. Bacon managed better the demolition of the old, Aristotelian, system of logic than the erection of a new instrument (novum organum) suitable for scientific investigation. Even the vehicle for his novel worldview, the charming utopian fable New Atlantis, was incomplete when published three decades after his death.

His literary works achieved a greater degree of finality. Very little if any aspect of the human condition, from “Truth” (Essay I) to “Of Vicissitude of Things” (Essay LVIII) were wanting in the fifty-eight elegant Essayes or Counsels Civil and Moral (in its first form published in 1597, final form 1625).

Sir Thomas More [Lord Chancellor] had sent him by a suitor in chancery, two silver flagons. When they were presented by the gentleman’s servant, he [More] said to one of his men, Have him to the cellar, and let him have of my best wine: and turning to the servant, Tell thy master, if he like it, let him not spare it.⁴

Bacon’s legal writings were less a matter of unachievement than of un­derachievement. From a purely professional perspective, the most consid­erable and important of his legal pieces is the Reading on the Statute of Uses (1536) that he delivered at Gray’s Inn in the Lent vacation, 1600. Such a reading was a highly conventional exercise, a series of lectures usually on a statute delivered at an Inn of Court either in the Lent vacation or the Summer vacation by a senior barrister for the instruction of students in statutory interpretation. It signified the barrister’s preparation for call as a bencher on the governing body of the Inn (in Gray’s Inn, Pension). An exceptionally learned bencher might be moved to give a second reading, as was the case with Bacon’s reading on the Statute of Uses.

Enough readings from the period exist, often as students’ notes, a num­ber of which were printed posthumously in the later seventeenth century, to give us considerable insight into the way that lawyers of Bacon’s genera­tion dealt with statutory enactments and interpreted them using the intel­lectual process that was already called legal reasoning. Alas, the bulk of the readings testify to jurists who were more artisan than artist, solid advocates eschewing legal principles as far as possible and sticking to the narrowest explication de texte. Giving a narrow clarification of obtuse laws that baffled students and slightly inattentive junior barristers pressed the reader to avoid much architectonic grandeur.

Bacon’s reading exists as a fragment, six of probably fifteen lectures, published posthumously in 1642. It was the product of a mature lawyer of unparalleled intellectual gifts, and it dealt with one of the half-dozen most important statutes touching common law ever enacted by Parliament. The quality ofBacon’s reading is an exception to the norm, as Sir William Holds­worth observed:

The only reading which is really illuminating is Bacon's unfinished reading on the statute of Uses. His wide intellectual outlook and gift of style, united to his complete mastery of the technical rules of the common law, gave him the power to state and explain and criticize its rules in a manner comprehensible to a student and illuminating to a lawyer. We have already seen how great a light it sheds, not only on the statute, but also on the history of Uses.... This one reading gives him a place beside those few great teachers who have appeared at infrequent intervals in the history of English law—beside men like Blackstone and Maitland.⁵

Hyperbole overcomes Holdsworth only in the first and last sentences.

The best of Bacon’s juristic writings is The Elements of the Common Lawes of England. Or at least the first and most considerable part of it, A Collection of Some Principall Rvles and Maximes of the Common Lawes of England, with Their Latitude and Extent—hereafter, Maximes—about the authorship of which there is no question. The second part, The Use of the Law, Providedfor Preservation of Our Persons, Goods, and Good Names, According to the Practise of the Lawes and Customes of this Land, though ascribed to Bacon and bound up with theMaximes since the first edition in 1630, is probably not Bacon’s work.⁶ In any case, the dead Bacon was poorly served by the assigns of John Moore, who rolled the two tracts off their press in 1630 under the title The Elements of the Common Lawes of England. The text is full of little errors that are not always minor, errors, even to the description of the author on the title page of theMaximes, who had never been “Sollicitor general to the late renowned Queene Elizabeth” though a decade later was solicitor-general to James I. No matter. The reputation as a juristic writer of Sir Francis Bacon, Baron Verulam, Viscount St. Albans, quondam Queen’s Counsel, King’s Counsel sworn, Solicitor General, Clerk of the Council in Star Chamber, Attorney General, Lord Keeper of the Great Seal, and finally Lord Chan­cellor, depends upon the twenty-five Maximes set down with learned com­mentary over 104 pages, preceded by a dedicatory epistle to Elizabeth I full of exhortation to undertake law reform and an elegant preface making clear the possibilities and the perils of finding general principles in order to de­termine what the law is.

There is magic. Because of Bacon's stylistic vigor and the rigorousness of his thinking, the breadth and the depth of each maxim or rule is made very clear very quickly. His almost excruciating meticulousness in banish­ing the inherent ambiguity of the maxims seems almost legerdemain. It is, however, neither chicanery nor sophistry that Bacon works here, the intel­lectually dishonest slights and leaps that a crooked advocate advances with orotundity and theatrics in search of forensic success. Bacon had an enviable forensic reputation, but one honestly earned. His appearance at bar always attracted a large and rapt auditory. Rapt, because he always made sense and seldom failed to carry the audience (if sometimes not the bench) to a higher appreciation of the issue at trial. His submissions were usually masterpieces of persuasive clarity. He had the capacity to carry a legal argument with almost contrapuntal harmony of elements that would, if attempted by a less eloquent advocate, have been a cacophony of unrelated and disparate notes. One sees in the Maximes the skill that Bacon exercised in all those causes celebres, from the prosecution of his old mentor the Earl of Essex to the Case of Richard Brereton that impelled James I personally to sit in Star Chamber and instruct the judges concerning the regal prerogative to determine the boundaries of their respective jurisdictions.⁷ It is the Max- imes, read in conjunction with the records and reports of cases, along with Bacon's own papers in modern editions, that has enabled recent scholarship to retrieve Bacon's juristic reputation from damnation by the faint praise voiced by nineteenth-century legal commentators—that he was a jurist of marginal writings, mere forensic pyrotechnics, dilettante dabbling. Bacon has finally achieved the stature of being taken seriously as a legal theorist.⁸ It is surprising that it has taken so long. Bacon's jurisprudential powers, that is, his ability as a philosopher of law, ought not be surprising. After all, for one who boldly conceived and argued convincingly for a whole new way of seeing nature and humankind's place in it, who fashioned the ap­propriate logical tool—inductive reasoning—to master knowledge, a sys­tematic jurisprudence was feasible and, in his scheme of things, essential.

To capture the jurisprudential Bacon, the legal philosopher at full pitch, we are less dependent on the twenty-five Maximes than we are upon a cog­nate form of the genre of pithy phrase so prominent in Bacon's writings. To the twenty-five rules or maxims in The Elements of the Common Lawes of England must be added a further ninety-seven aphorisms that found a place in the 1623 De Augmentis Scientarum, Book VII, Chapter III. While the use of the terms maxim and aphorism suggests a distinction, the difference between the two is subtle. A maxim (from the Latin maxima-, greatest) is a general truth drawn from science or experience. It governs or controls— and, as indicated by the Latin term for a legal maxim, regula or rule, carries with it an implicit sanction for its violation. An aphorism, no less pithy, has the less forceful quality of definition, appropriate to its Greek origin (aphorismo, definition). It serves to clarify a concept rather than mandating it. For most purposes—and ours hereafter—the distinction can be ignored and maxims and aphorisms dealt with as one, but the distinction obtains in comparing the twenty-five maxims and the ninety-seven aphorisms. The ninety-seven aphorisms Bacon saw as “laws of laws,” legum leges, defining those terms, concepts, and principles of law requisite to determining what good or ill any law might do. In short, the ninety-seven are propositions which through argumentation can lead to a general jurisprudence. Bacon included this aphoristic review ofjurisprudence in De Augmentis in further­ance of his intention in that part of the Great Instauration to provide a survey or inventory of what was known preparatory to the thoroughgoing reinterpretation of existing knowledge and the fearless search for the new that was his goal. The aphorisms have the smell of cliches, of the most conventional of conventional wisdom. They also tend to be dullingly dia­lectical: altera-, vel, and sed are the most common Latin conjunctions in the aphorisms; on the one hand, on the other hand. But the aphorisms are strung together with a forward dynamic that provides them with a coher­ence otherwise lacking in a merely random collection of pithy sayings. In seeking the source of law to be applied in a case in the absence of promul­gated law or law that is unclear, Bacon directs a comparison to similar cases (aphorisms 11-12), then to interpretation using tools of rhetorical inductive logic (13-20), precedents (21—31), equitable principles (32-46), and retro­spective legislation (47, 51). The result is remarkably comprehensive and singularly plausible, even to modern eyes.

Bacon said that he had three hundred aphorisms and maxims at hand. One winces in contemplation of a treatise of commentary and explication incorporating so many pithy Latin expressions. In this case, Bacon's wont­ed inability to complete an undertaking has spared posterity. Yet we might regret the loss when we reflect on what Bacon did manage with the genre, perhaps not so much with the greater jurisprudential undertaking in De Augmentis, where the pithy phrase served the function of dialectical propo­sition, as with the lesser, manageable, and quintessentially legal enterprise represented in the Maximes.

At the outset of determining what Bacon meant to do with the Maximes and what he accomplished, the genre of the pithy saying itself requires at­tention. The early modern epoch might almost be called the Age of Apho­rism. One product of the classical revival in the Renaissance was that the weighty sayings of the ancients were discovered (even if not lost, given renewed emphasis). The Latin tongue lends itself to aphorism; its syntax is peculiarly felicitous for the pithy device. Classical pre-Christian Roman letters had a large role for aphorism. Similarly, Roman law, particularly Justinian’s Digest, was a fertile source for legalomoral aphorisms, and later civilian and canonical commentators increased the number of them. The vernacular languages of post-Roman Europe might almost be gauged in their developing sophistication and literariness by the growth of aphorism in them over the course of the Middle Ages. This was clearly imitative of Latin, and it was a long time before the developed vernaculars evolved a large range of aphorism. Europeans long preferred their dalliance with aphoristicity in Latin! Indeed, that is a principal reason why Bacon made no attempt in the Maximes to render the maxims in English.

The vernaculars early developed an indigenous aphoristic form, the proverb. The proverb was less sonorous and less elegant, without the pre­tension to authority or the didactic import of the maxim-cum-aphorism. The proverb, born in folklore, expressed in the vernacular and preserved in oral tradition, did provide, for common discourse, conventional wisdom similar to that which the maxim-cum-aphorism provided the more exalted written word. Despite its humble origins, the proverb also benefited from the Renaissance, finding a place in literature, thereby democratizing letters to an extent previously unknown. But this tended to preserve the Latin aphorism long after it might otherwise have disappeared in professional and scholarly letters: there was something inherently vulgar and ignorant in using the vernacular to express high ideas in the vernacular. Or even to express low notions. Listen to this maxim: Testis lupanaris sufficit ad factum in lupanari.⁹ It doesn’t have quite the same ring to it in English: A whore is a sufficient witness of what happens in a brothel.

Just how widespread was the phenomenon of the maxim in sixteenth- and seventeenth-century English law is evident from the ubiquity of max­ims in legal literature, printed and manuscript. This is different in kind from the earlier literature of the common law. Glanvill and Bracton cer­tainly turned an aphoristic phrase on occasion. There is no greater one than Bracton's Rex non debet esse sub homine sed sub Deo et lege quia lex facit regem, The king ought be under no man, but under God and the law, for the law makes the king.¹⁰ Here we correctly detect the Roman influence on both of those great early treatise-writers. Still, the two most important forms of medieval legal literature, the practice books (such as the Natura Brevium) and the Year Books, reveal a small role for aphorism in the common law then. It is with the advent of the modern case reports, especially with the eleven volumes of Reports that Sir Edward Coke published, that the legal maxim begins to loom very large in the common law's literature. Coke's contribution is clear. In a current collection of maxims in English common law, of the 1102 maxims set down (many of them not ascribed), 547 are cited to Coke.¹¹ Relatively few of these can be pushed further back than Coke. Coke argued that the maxim provided the most certain authority and was sufficient proof in itself of what the law is. It is well not to take this at face value, because Coke was less than candid in his use of maxims. Sam Thorne has caught him out:

As a rule of thumb it is well to remember that sentences beginning “For it is an ancient maxim of the common law,” followed by one of Coke's spurious Latin maxims, which he could manufacture to fit any occasion and provide with an air of authentic authority, are apt to introduce a new departure. Sentences such as “And by these differences and reasons you will better understand your books,” or “And so the doubts and diversities in the books well resolved,” likewise in­dicate new law. If I may formulate a theorem of my own, I advance this—the longer the list of authorities reconciled, the greater the divergence from the cases cited.¹²

After more than five decades of grappling with Coke, Coke's Reports, and Coke's maxims, the author is convinced that Professor Thorne let him off too lightly.

Other lawyers did not so abuse maxims. Maxims as used by other advo­cates and judges seldom made a claim to authority or to proof. Rather, they were used illustratively and for rhetorical effect. Sir Thomas Egerton, Lord Ellesmere, Bacon's immediate predecessor as Lord Chancellor, was at great pains over his twenty-one years presiding in Chancery and Star Chamber to preserve and neatly arrange maxims with which to dress his opinions. These he set down on separate sheets of paper and in a distinctly different, Italic, hand.¹³ Appropriately sorted by subject matter and (where known) the source cited, they range over legal literature, civilian, canonical, and common law, classical letters, and philosophical writings. From Ellesmere's notes of Star Chamber cases it is clear that few of them were expected to bear authoritative weight. The most common one that can be so character­ized is without citation (and so far undiscoverable), used time and again by Ellesmere in Star Chamber when the high and the mighty were called to judgment: Dignitas delinquentis auget crimen (culpam), The dignity of the delinquent increases the crime (guilt). So obvious is the notion, there can be no deceit here.

Neither will Coke's deceit be found in Bacon. For Bacon's maxims are real enough, and even insofar as some of them are his own confection, none of them are intended to give a false authority to his argument. Bacon's assertion in De Augmentis that maxims were laws of laws should not be understood to give them the effect of some kind of fundamental law, with all of the immutableness and preeminence that fundamental nature war­rants. The mistake is easy enough to make, for the maxims appear to be “the law.” That is, each maxim exudes a positivist categoricalness, a legis­lative imperative, exacting absolute literal and verbatim implementation. Certainly rhetoric plays a role in this, but the larger source of the maxim's apparent positivism is simply that, by being the starting point, it dominates the subsequent discussion and commentary. The singular role played by the maxims collectively, as the taxonomic structure of the whole undertaking, also comes into play. Once the reader gets into the commentary, however, the maxim seems less categorical, more subject to exceptions, a heuristic de­vice more than an injunction. The first maxim dispels all misapprehension of diktat or ukase, fundamental and immutable prescription. Granted, the maxim itself is unambiguous, ringing in its declarativeness, and unequivo­cal in its assertion: In jure non remota causa, sed proxima spectatur, In law not the remote cause but the nearest cause is to be considered. However, the entire commentary on it is as painstaking in demonstrating where the “rule faileth” directly or constructively (where remoteness and proximity cannot be distinguished) as where it applies.¹⁴

Such ambivalence, if not downright contradiction, was, of course, in­herent in the nature of the common law process. The substantive common law developed by growing in the interstices of procedure, dependent upon the forms of action as the instruments for the evolution of remedies that, unlike Athena, did not spring full-grown out of the head of God (or the Anglo-Norman kings). Such ambivalence in the law would, almost two centuries later, undergird Mr. Justice Blackstone's most famous dissent, wherein he insisted that the immediate tortious cause was actionable in trespass but that the remote tortious cause was actionable only in case.¹⁵ This distinction disappeared with the erosion of the forms of action in the next century and the rise to dominance of negligence in tort. Yet the mod­ern American lawyer might remark somewhat ruefully that the distinction of remoteness and proximity still lurks in deep pockets in tort law. Bacon is not yet irrelevant.

It is also clear that, as soon as one gets beyond the sonorous maxim, the stuff of the law is here. The cases are real. Bacon asserted that many of the cases are judged cases, “either within the books [Year Books] or of fresh report, and most of them fortified by judged cases, and similitude of reason.”¹⁶ We should take him at his word, despite his refusal to cite his authorities, “judging it a matter undue and preposterous to proove rules and maxims a regrettable practice that grew from a sensitivity less exquisite than arrogant, that he would not derogate from the authority of the rules, by vouching of any of the authority of the cases.”¹⁷ It is revealing that the assigns of John Moore had no such compunction, and where the prov­enance of the cases in the commentary could be determined citation was provided. By 1630, with my Lord Coke's Reports in printed form and a vast, widely circulated corpus of manuscript reports of other eminent lawyers and judges, the English lawyer was already beginning to judge the weight of a case's authority by the heft of its citations. The day was long past when Bacon could sneer at John Perkins's A Profitable Booke Treating of the Lawes of England (1530) and William Staunford's Plees del Coron (1557) for their care in citing authorities. Court, counsel-contra, and client all demanded that the advocate provide chapter and verse.

In his aphorisms in DeAugmentis, Bacon makes clearest, explicitly, what the relationship is between the rule and the law:

It is a sound precept, not to take the law from the rules, but to make the rule from the existing law. For the proof is not to be sought from the words of the rule, as if it were the text of law. The rule, like the magnetic needle, points at the law, but does not settle it.¹⁸

If the reader approaches the Maximes with that advice in mind, there can be no mistaking Bacon's purpose and no misunderstanding the function and role of the maxims. There can also be no doubting Bacon's intellectual honesty in the use of maxims. Coke stands diminished in comparison.

But why rules at all? To the Westlaw eye there is something anomalous about trying to condense law existing in the form of cases into a neat table of rules, especially if we are told that we are not to find the letter of the law in the rules. However, Bacon's enterprise might not seem so anomalous to a generation of American lawyers raised on the Uniform Commercial Code, Restatements, and American Legal Institute Model Codes if the rules and maxims are seen as the foundation of a thoroughgoing reform of the common law based on a restatement of its principles. When Bacon wrote the Maximes in 1596 there were high hopes that the common law might undergo considerable reform. The portents were good. The Queen herself seemed well disposed. In the Maximes' Epistle Dedicatory to the Queen, Bacon referred to the Queen's speech to Parliament in 1593 in which she had alluded elliptically (Elizabeth's preferred manner) to undertaking “a generall amendment of the states of your lawes, and to reduce them to more breuity and certaintie.”

Moreover, in these same years, a new generation of lawyers were ris­ing to commanding positions of influence and juridical power. From 1592 to 1595, fourteen new serjeants-at-law were coifed, four of them Queen's Serjeants sworn of her counsel learned, the largest promotion to the apex of the legal profession in any four-year period in Elizabeth's reign. Both King's Bench and Exchequer acquired new chiefs in 1592 and 1593, respec- tively—and the new Chief Justice of King's Bench, John Popham, would prove a particularly vigorous and assertive jurist. There were two new puis­ne justices of the Common Pleas appointed in 1593-1594 and a new Baron of the Exchequer in the latter year. In short, five of the twelve judges of the three great common law courts, including two chiefs, were appointed within three years. In 1592, Edward Coke was appointed Solicitor General. In 1594 he was promoted Attorney General, and in 1595 Thomas Fleming succeeded him as Solicitor. In 1592, Thomas Egerton was appointed Attor­ney General, in 1594 he was promoted Master of the Rolls, and in 1596 he was elevated to the highest office as Lord Keeper of the Great Seal (retain­ing until 16o3 the Mastership, thus effectively dominating Chancery at all levels). Last but not least, Francis Bacon was named (but not sworn) to the Queen's counsel learned, serving without patent or fee, a poor consolation prize for having lost the attorney-generalship to Coke and the solicitor-gen­eralship to Fleming.

From the greatest of these jurists to the least of them (and by virtue of rank and emolument Bacon was the latter), they were a remarkably learned and energetic cohort. All of them had been formed in the old construct of the mediaeval common law, of writs and Year Books, but all of them recognized that the age demanded procedural reform, greater emphasis on substantive law, and more certainty as to what constituted authority in the law. The clearest statement of the tasks they faced, one to which all gave at least substantial tacit consent, was in Bacon's Epistle Dedicatory, where he set down the benefits to be enjoyed and the perils to be avoided by general law reform. His objective was the better to establish and settle “a certaine sense of the law, which doth now too much wauer in incertaintie.”

Bacon's device to achieve certainty was the enunciation of rules (regu­lae), laws of laws (legum leges), drawn from the cases. When completed, all of some hundreds rules (possibly thousands) would be reconciled and arranged in the form of a restatement of the common law. This would be the compass guiding the jurist into the law, not the law itself. Clearly, new cases would find a place under the old rules. The restatement done, the law would become at a stroke a structure much more centered on substantive law and much less dependent upon the adjective, procedural law which had been the mother, nurse, and governess of the common law from its origins. Indeed, the great task facing the common law at the end of the sixteenth century—the end of the Middle Ages so far as the common law was con- cerned—was how to get away from nanny. This is what reform according to Bacon's precepts would have accomplished.

To bring certainty to the law this way would have been a painful la­bor. After all, this method is that underlying every codification or statute law revision, and though precious little Latinity is visible in the Uniform Commercial Code, its rules are still identifiable as regulae of an older dis­pensation. The assumption behind the process is that there is a body of law and that however it has come into existence “there are rules & grounds dispersed throughout it.”¹⁹ Every codificatory exercise has worked on that assumption, and the work of Justinian and Tribonian was no exception. Their Digest was Bacon's model. The Digest (or Pandects) had gathered together, reconciled, and reduced some 2000 treatises of two score jurists of Republican and Imperial Rome into fifty books containing several titles and altogether about 9000 separate extracts. However, the ruling princi­ples in the Digest, determining the arrangement of the extracts, were taken from the a priori dictates of the Codex compiled a few years before. Bacon apparently had no intention of producing a code, and he had profound misgivings about the legislating sovereign being preferable to custom as the authority for law. In a 1616 proposal to James I for law reform itself—a sad reflection on what had not been accomplished since the new jurists ar­rived in the 1590's—Bacon made clear his position on the fundamental issue that codification raises:

It is too long a business to debate whether lex scripta aut non scripta [law written or unwritten], 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................................................................................

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.²⁰

Bacon would not begin with a code but rather with those “laws of laws,” which careful sifting through the existing law of cases, living custom more than sovereign exigent, revealed. And he would stop there. There would be a digest of case law and a digest of statute law. The case law would be shorn of prolixity, obsolescence, and contradiction by the judges and, if necessary, by Parliament. In De Augmentis (Book VIII, Chapter III, Aphorism 92), Bacon suggested that points of law be referred to the judges by the king for authoritative determination, upon argument but without a real case stated. This was hardly novel, since it had become a relatively common procedure under James I. It was also doomed, since its use had been stoutly opposed by the judges, not least (but not exclusively) by Coke, whose translation from the chief justiceship of Common Pleas to that of King's Bench in 1613 and sacking from the latter in 1616 turned in part on his opposition to such apparent regal interference.

The Justinian model was, in Bacon's order of things, to be carried one step further beyond the two digests. There would be four other books. The first would be De antiquitatibus juris (antiquities of law), viz., collected writings about laws and judicial pronouncements quae ipsum corpus legum tempora praecesserunt (which came before the body of the law).²¹ It is not en­tirely clear what practical function this book was meant to have. It would be drawn from muniments and archives as well as treatises, rigorously summa­rized albeit as fully as possible, and while having value as precedent would not have binding authority. Since Bacon was reluctant to let advocate or court look behind the digest of cases and the digest of statutes, and certain­ly would not allow the old, overruled, and obsolete cases and enactments any forensic vigor, the book of antiquities would probably be limited to the small role of preserving the tradition of the legal culture. The other three books were intended to pedagogical ends. The first would be institutes, similar to Justinian's Institutes, for instruction in the law. The second would be a compilation of terms of the law, old and new, arranged not alpha­betically but by logically related concepts, something like Roget^,s Thesaurus. (Bacon had a horror of that ubiquitous, alphabetically ordered, aide-me­moire of the lawyer, the commonplace book.) The third book would be De regulis juris—maxims once again—directed at opening the leading prin­ciples of law, through a logical process essentially dialectical and inductive. Those principles were the general dictates of reason, which run through the different matters of law, and are like legal ballast (SaburraJuris).²² So, the maxim in nautical metaphor thrives, though we have descended from the compass on the quarterdeck to the keelson and the bilge! But the maxim remains seaworthy and afloat in fulfilling a vital and august role in Bacon's novum organum of law and jurisprudence.

Bacon never completed his ambitious undertaking of not just law re­form but the whole recasting of the common law. He failed even to begin it, beyond the few pieces discussed here. Nonetheless, he had his disciples, those who saw merit in maxims as more than mere illustration or forensic decoration. John Doddridge's The English Lawyer (1629) made abundant use of maxims for the ready instruction of lawyers (through memorization). William Noy's Principall Grounds andMaximes of the Lawes of the Kingdome (1642) was also primarily aimed at students. Edward Wingate's Maximes of Reason (1658), including religious and philosophic maxims as well as legal ones, had great currency. And Henry Finch's Nomotechnia, first published in law French in 1613 and in English in 1627, was most directly influenced by Bacon and emphasized maxims as principles. Finch's book had a wide influ­ence, continuing into the latter half of the next century. There is, though, pathos in the paucity of Bacon's disciples. The fertile product of the greatest legal mind of the age had been replicated only in student texts.

The future direction of English law was not determined by Francis Ba­con. It was by Edward Coke. This is not the place to recount the deep and disordering rivalry between the two men that was personal, professional, and political. Neither man's considerable stature and gravity are improved by the confrontation, face to face, knife to back, delating lips to ear. Coke's latest biographer has seen the rivalry as reflecting

the tension between the practical lawyer and the philosopher, the independent man and the chronic debtor, the ally of Cecil and the friend of Essex... the lack of sympathy between the industrious poor relation [Coke] and the talented, indolent, prodigal son [Bacon].²³

None who studies the events of the late Elizabethan and early Stuart epoch can escape the tension. It crops up in unlikely places and times, involved in seemingly innocent events. One sympathizes with Bacon: he was, after all, the greater loser of fortune, place, honor, and reputation. One also sees the justice of Coke's victory and accepts with professional satisfaction its result. Yet, in the scheme of English history, wherein, despite two domestic revo­lutions in the seventeenth century and an overseas one in the next, there is only one acceptable and therefore viable interpretation of what happened: the Whig Interpretation of History, which celebrates the peace, order, good government, representative institutions, constitutionalism and ultimately democracy which prevailed against Stuart Despotism. The Coke-Bacon confrontation is too easily read as a collision of good and evil, and tends to divide historians into partisan communities. Even Coke's most impas­sioned biographer (whose lengthy encomium of the great common lawyer was greeted by one English reviewer as applicable to any lawyer, in any age, anywhere) was a partisan, though Catherine Drinker Bowen gracefully changed her mind about Bacon after she wrote a biography of the phi- losopher-essayist.²4 There is a tinge here of the Dreyfusard/Anti-Dreyfusard split that divided France at the end of the nineteenth century, albeit one without the disfiguring animus of anti-Semitism or the larger issue of Left and Right unresolved after a century of French revolutions. But had Bacon and not Coke triumphed in determining the direction of the modern com­mon law, our law today, on both sides of the Atlantic and throughout the common law world, would be considerably different.

Coke eschewed radical reform, and he possibly never entertained a sin­gle abstract jurisprudential thought. He was also suspicious, and more to the point, impatient, of principles in the law. He believed that there was a vast body of existing law that could be summoned by the artificial reason of the judge for application to the concrete case at hand in order to ar­rive at a just conclusion of an issue and afford appropriate remedy for the wronged party. But that body of law provided discrete directions to solve real situations, not principles for ratiocination. Coke had enormous faith in the probity and the capacity of the judiciary. He believed that the court al­most unerringly managed to find the right solution by the right way. Coke's Reports, or simply the Reports in English citation, were less scripture than hymnal—praising the justice emanating from Westminster Hall, celebrat­ing the steady ritual acts of the common law. He was almost naive in his confidence. Dismissed from the bench in 1616, summoned back to the Star Chamber as a Privy Councillor in 1618, he emphasized the judicatory nature of that tribunal and never doubted that it was indeed the High Court of Star Chamber. Finding a seat, a voice, and enormous influence in the House of Commons in the 1620's, he fashioned the High Court of Parliament. Thus, he played a large role in reviving the mechanism of impeachment, the most notable victim of which—deservedly—was Lord Chancellor Bacon.

Coke's contribution was above all else to sum up the existing mediaeval law in its most important branches, as for real property in the First Insti­tutes, Coke upon Littleton, and largely ignore the rest. In his reports he bridged the gap that separated the anecdotal and ambiguous content of the Year Books from the necessarily factually precise, conclusion driven, and explicitly reasoned modern report. Here his spurious maxims were useful, because while he denied them the authority of principles, or “laws of laws,” he used them to short-circuit the interminableness of pleading in the Year Books. This enabled him to fashion new law less hindered by the trammels of the old. In this he showed the way to other lawyers of the age, who whether knowingly or not came to use maxims to the same purpose.

What a strange fate for the maxim! In 1616, Bacon had confidently pre­dicted to his royal master, James I, in promoting his larger scheme for law reform,

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 greater lawyer.²⁵

It was not to be. Perhaps the bitterest defeat of all was that not only did Coke found the modern common law upon his Institutes and Reports, he used regulae not to sum up the old law as Bacon did, but to isolate it and destroy it as authority.