Certainty, laws and facts in Francis Bacon's jurisprudence

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Acknowledgements

I would like to thank to Daniel Andersson, Daniel Coquillette, Sorana Corneanu, Dana Jalobeanu, Darío Perinetti and Gianna Pomata for their comments on earlier versions of this paper and the two anonymous reviewers for their helpful suggestions.

Notes

1. Shapiro, “Sir Francis Bacon,” 352–56; Coquillette, Francis Bacon, 139, 244–56, 289–91; Martin, Francis Bacon, the State, 106–7; Mohnhaupt, “‘Lex certa’,” 81.

2. Wheeler, “The Invention of Modern Empiricism,” 86.

3. Daston, “Baconian Facts,” 39–40; 48; Martin, Francis Bacon, 166–67; Shapiro, Culture of Fact, 117–132; Shapiro, “Testimony in Seventeenth-Century,” 250–51.

4. Wheeler, “Invention of Modern Empiricism,” 86.

5. This issue will not be addressed in the present work, but in further studies in the future.

6. Bacon, Proclamation concerning Jurors, Works of Francis Bacon, vol. 10, 390. All references to Bacon are from The Works of Francis Bacon, edited by Spedding, Ellis and Heath, unless indicated otherwise. The English translations are mine.

7. Stein, Regulae iuris, 109–10.

8. Mohnhaupt, “‘Lex certa’,” 73–89.

9. Maclean, Interpretation and Meaning, 2–3. On legal interpretation in a wider context see Kelley, “Hermes, Clio, Themis.”

10. Mohnhaupt, “‘Lex certa’,” 81; Maclean, Interpretation and Meaning, 26–28; 207; Maclean, “Evidence, Logic, the Rule,” 230.

11. Neustadt, “Making of the Instauration,” 70–71. On Bacon's attitudes in seeking public positions see ibid., chapters 3 and 4.

12. The attribution of Gesta Grayorum to Bacon is only conjectural, see Works of Francis Bacon, vol. 8, 325–29.

13. Neustadt, “Making of the Instauration,” 76–78.

14. Bacon, Gesta Grayorum, in Works of Francis Bacon, vol. 8, 339–40.

15. On the dating and the circumstances of this text, see Neustadt, “Making of the Instauration,” 52–53; Coquillette, Francis Bacon, 35–48.

16. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 319.

17. Bacon's first public statement on law reform was made in 1593 (Speech to the Parliament, in Works of Francis Bacon, vol. 8, 214), whereas the last remaining document on the same subject is dated 1621 (An Offer to the King of a Digest to be Made of the Laws of England, in Works of Francis Bacon, vol. 14, 357–64). On Bacon's law reform see Shapiro, “Sir Francis Bacon,” 331–62.

18. Hereafter Tractatus, in De Augmentis Scientiarum, in Works of Francis Bacon, vol. 1, 803–27.

19. For a detailed analysis of the work see Coquillette, Francis Bacon, 236–56; Shapiro, “Sir Francis Bacon,” 352–56. The Tractatus has strong similarities with the proposal for reforming the English law written by Bacon in 1616 – A Proposition touching the Compiling and Amendment of the Laws of England (Works of Francis Bacon, vol. 13, 61–71) – and with Maxims (1596).

20. Bacon, Tractatus, 805, aph. 7. In early-modern legal lexica intimare is identified with the verb denuntiare (to denounce): to announce, to make known, to declare, to proclaim. See Spiegel, Lexicon iuris civilis , s.v., 303; Kahl, Lexicon Iuridicum, s.v., 1395.

21. Cf. Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 635: “quod certum non est justum non est.”

22. Bacon, Tractatus, 805: “Optimam esse legem, quae minimum relinquit arbitrio judicis: id quod certitudo ejus praestat.” Cf. ibid., 813, aph. 46.

23. For the Roman law background see Monhaupt, “‘Lex certa’,” 79–81.

24. Shapiro, “Sir Francis Bacon.”

25. Bacon, A Memorial touching the review of Penal Laws and the Amendment of the Common Law (ca. 1614), in Works of Francis Bacon, vol. 12, 85. On the circumstances of this text see Neustadt, “Making of the Instauration,” 202–5.

26. Some of these are reminiscent of the modes of interpretation developed in Renaissance Roman law. See Maclean, Interpretation and Meaning, 116–24.

27. See fn. 115 below.

28. To some extent these considerations about the ambiguity of laws can be associated with Bacon's treatment of the idols of marketplace, particularly with the idols constituted by the “muddled and ill-defined” names of existing things. Bacon, Novum organum, I.60, in Oxford Francis Bacon, vol. 11, 92–93.

29. Bacon, Tractatus, 819. These ideas echo Renaissance Roman law notion of significatio and its cognates. See Maclean, Interpretation and Meaning, 97–98.

30. Cf. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 417–18 and Chudleigh's Case, in ibid., vol. 7, 625.

31. On the Roman origins of this recourse see Stein, Regulae iuris, 78–79.

32. By the sixteenth century the sheer number of law reports made their use very cumbersome. Books of abridgments of law began to be published in order to relieve lawyers and jurists. On English law sources see P. Winfield, Chief Sources, and Baker, Introduction, ch. 11.

33. The section on auxiliary books in the Tractatus has as precedent the proposal to the King in Bacon, Amendment of the Laws, 69–71.

34. On Bacon's views on legal education see Coquillette, “‘Purer Fountains’.”

35. Bacon, Tractatus, 822–23, aph.82.

36. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 319–20. On the sources of Bacon's maxims see Hogan, Mortimer and Schwartz, “On Bacon's Rules,”; Hogan and Schwartz, “Translation”; Coquillette, Francis Bacon, 35–48.

37. For an overall survey of this background see Coquillette, “Legal Ideology and Incorporation.”

38. Bacon, A Brief Discourse upon the Commission of Bridewell, in Works of Francis Bacon, vol. 7, 509; Bacon, Tractatus, 823, aph. 82; Bacon, Maxims, in Works of Francis Bacon, vol. 7, 319–20; Bacon, Amendment of the law, 70. Like other contemporary English lawyers, Bacon uses “rules” and “maxims” interchangeably. John Doddridge, for instance, notes that maxims receive many names: grounds, maxims, principles, eruditions, laws positive, rules or propositions. Doddridge, English Lawyer, 151–54. See Stein, Regulae iuris, 67–108; Neustadt, “Making of the Instauration,” 33–55.

39. Stein, Regulae iuris, 170–75; Coquillette, Francis Bacon, 38; Neustadt, “Making of the Instauration,” 61–62. On the semantics of regulae juris in early-modern Roman law see Maclean, “Expressing Nature's Regularities,” 30–36.

40. Stein, Regulae iuris,171–72.

41. Bacon, Tractatus, in Works of Francis Bacon, vol. 1, 823, aph. 85.

42. Ibid., 823, aph. 82. Cf. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 320. A similar distinction and musical image is to be found in François Hotman, a prominent French Humanist jurist: “Regula sit sententia quaedam generalis, quae ex plurium legum mente a Iurisconsultis notat atque animadversa, paucis verbis summam quandam earum consensionem et tanquam harmoniam complectiur. [ … ] Leges esse tanquam voces, et sonos singulos: Regulam vero esse tanquam harmoniam et concentum,” Hotman, Observationum liber secundum, 32, 34. This definition was widely adopted. It is reproduced, for instance, by Kahl's Lexicon Iuridicum, s.v. regula, 800; Schardius, Lexicon iuridicum, s. v. regula, 805. See Stein, Regulae iuris, 171–72.

43. Bacon, Tractatus, in Works of Francis Bacon, vol. 1, 823, aph. 85. Cf. Digest 50.17.1 (Paulus).

44. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 321.

45. Rastell, Les Termes de la Ley, 438–39. The first edition was printed in London in Latin, ca. 1523. Bacon was well acquainted with this work, the only common law dictionary existing in his day, although he had little regard for it. See Coquillette, Francis Bacon, 113. Cf. Bacon, Amendment of the Laws, 70.

46. St. Germain, Dialoges, I.8, fols. 15–16.

47. De laudibus legum Angliae was originally written about 1470. See Winfield, Chief Sources, 316–317.

48. On the use of inductive reasoning in law see Maclean, Interpretation and Meaning, 72–76.

49. Fortescue, De laudibus legum Angliae, fol. 21v–22r.

50. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 415. See McCabe, “Francis Bacon,” 112.

51. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 321.

52. Littleton composed the Tenures about 1481. I quote from the following edition: Littleton, Treatise of Tenures, 693.

53. Fulbeck, A direction or preparatiue, fol. 4v. Cf. Bacon, Tractatus, in Works of Francis Bacon, vol. 1, 819, aph. 68: The sense of laws must “ad captum vulgi tanquam digito monstrari.”

54. Fulbeck, A direction or preparatiue, fol. 4v–5r.

55. Ibid., fol. 6r.

56. Ibid., fol. 35r.

57. Ibid., fols. 33v–34r.

58. The Methodus studendi was printed posthumously in 1629 as The Lawyers Light, and was published again in 1631 as part of The English Lawyer. It has been conjectured that this work was composed before the accession of James I and therefore available to Bacon. See Neustadt, “Making of the Instauration,” 42–48.

59. Doddridge, English Lawyer, 117–22; 154. On the Aristotelian background of the books of maxims see Stein, Regulae iuris, 34–36.

60. Doddridge, English Lawyer, 155–64.

61. Ibid., 164–90.

62. Ibid., 191.

63. Ibid., 191, 194, 196. St. Germain had depicted as “probable” the “positive laws” in a very similar manner: “The lawe of man the which sometime is called the lawe positive is deryved by reason as a thing which is necessarily and probable, following of the lawe of reason, and of the lawe of god. And that is called probable [in] that it appeareth to many, and especially to wise menne, to be true.” St. Germain, Dialogues, book 1, chap. IV, fol. 7r. This definition of “probable” was traditional in Renaissance Roman law, see Maclean, Interpretation and Meaning, 92–93. See also Deman, “Probabilis.”

64. Doddridge, English Lawyer, 260. Cf. ibid., 241.

65. Besides Germain's Dialogues, Doddridge's Methodus studendi and Fulbeck's A preparative, Bacon may have been acquainted with the Anonymous, Principia sive maximae legum Angliae (1546) and Henry Finch's Nomotechnia (1613). Coquillette, Francis Bacon, 37–38, points out that it is difficult to know the extent to which Bacon was familiar with these works, since for the most part, we cannot be certain at what time they were originally written and circulated at the Inns of Court. However, Neustadt, “Making of the Instauration,” 29–51, 61–62, provides sufficient evidence of Bacon's acquaintance with Fulbeck's and Doddridge's works.

66. Bacon, Tractatus, in Works of Francis Bacon, vol. 1, 822–23, aph. 82.

67. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 323.

68. On “artificial reason” in common law, Neustadt, “Making of the Instauration,” 46–47; Smith Fussner, Historical Revolution, 29–32; Berman, Law and Revolution, II, 241–44. On the rhetorical and dialectical basis of the techniques of “artificial reason” in common law, see Giuliani, “The Influence of Rhetoric.” On the rhetorical background of English law see Schoeck, “Rhetoric and Law.”

69. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 322. Cf. Bacon, Amendment of the Laws, in Works of Francis Bacon, vol. 7, 70; Tractatus, in Works of Francis Bacon, vol. 1, 822–23, aph. 82.

70. Maclean, Interpretation and Meaning, 181–86.

71. Bacon, Chudleigh's case, in Works of Francis Bacon, vol. 7, 623.

72. Bacon employed frequently the terms “construction” and “interpretation” indistinctly. The legal meaning of construction provided by OED is similar to the legal meaning of “interpretation.”

73. Bacon, The Jurisdiction of the Marches, in Works of Francis Bacon, vol. 7, 598.

74. Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 624–25.

75. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 398.

76. Bacon, Case of Impeachment of Waste, in Works of Francis Bacon, vol. 7, 528.

77. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 361.

78. Bacon, The case of Revocation of Uses, in Works of Francis Bacon, vol. 7, 565.

79. Ibid., 558–59.

80. Ibid., 561. See also Maxim 11 in Bacon, Maxims, in Works of Francis Bacon, vol. 7, 350. Here Bacon touches briefly on a controversial issue that divided Renaissance Roman law commentators: whether or not the interpretation of law must rely on the usus or consuetudo loquendi. See Maclean, Interpretation and Meaning, 132–35.

81. Bacon, Case of Impeachment of Waste, in Works of Francis Bacon, vol. 7, 529. For more references to “the wisdom of the law” see ibid., 533; Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 420, 421

82. Bacon, The Jurisdiction of Marches, in Works of Francis Bacon, vol. 7, 598.

83. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 396.

84. Bacon, The Case of Revocation of Uses, in Works of Francis Bacon, vol. 7, 558.

85. Bacon, The Advancement of Learning, 180.

86. Bacon, “Essay of Judicature,” in Bacon, The Essayes, 165–69.

87. See Maxims 3, 10, 13, 16, 25, in Bacon, Maxims, in Works of Francis Bacon, vol. 7.

88. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 338–39.

89. The starting point in this regard is particularly Digest 34.5. See Maclean, Interpretation and Meaning, passim, esp. 125–35.

90. Bacon, The Case of Revocation of Uses, in Works of Francis Bacon, vol. 7, 565.

91. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 398.

92. For an example of this procedure see Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 630.

93. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 417.

94. Ibid., 423–24.

95. Bacon, Case of Impeachment of Waste, in Works of Francis Bacon, vol. 7, 531–32. On the use of etymologies in the Roman law tradition, see Maclean, Interpretation and Meaning, 109–11.

96. Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 628–29.

97. Bacon, The Jurisdiction of Marches, in Works of Francis Bacon, vol. 7, 298.

98. Ibid., 618. The first rule is similar to Digest, 32.35 (Paulus). Cf. Digest 1.3.23. The second rule resembles Digest 1.3.19 (Celsius). Cf. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 336–37. The rule is applied, for instance, in Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 631 and seems to be appealed to in Bacon, Case of the Impeachment of Waste, in Works of Francis Bacon, vol. 7, 528.

99. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 336. The rule is similar to D 34.5.12 (Julianus). For more interpretation rules resembling Roman law see ibid. 336–37.

100. Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 622.

101. See, for instance, Bacon, Case of Impeachment of Waste, in Works of Francis Bacon, vol. 7, 539–40.

102. This summary relies mainly on Baker, The Reports of Sir John Spelman, vol. 2; Baker, Legal Profession, ch. 3; Shapiro, Culture of Fact, 8–33; Martin, Francis Bacon, ch. 4.

103. Shapiro, “Beyond Reasonable Doubt”, 11–18.

104. Jones, Elizabethan Court, 44.

105. Baker, Introduction, 105–6.

106. Cardwell, “Francis Bacon, Inquisitor,” 276. Bacon was appointed as officer for examinations and later as Clerk of the Privy Council in the Star Chamber in 1608.

107. Langbein, “Criminal Trial,” 285–316; Berman, Law and Revolution, II, 284–87.

108. Baker, Legal Profession, 289–91; Shapiro, “Beyond Reasonable Doubt”, passim.

109. Langbein, Prosecuting Crime, 80 ff.

110. Langbein, “Criminal Trial,” 266; Macnair, Law of Proof, 249–54. Shapiro, “Beyond Reasonable Doubt”, 192, quotes the laws of 1547, 1552 and 1661 which established the two-witness requirement for treason trials and points out that this requirement apparently lapsed temporarily in the seventeenth century, as is shown in the trial of Sir Walter Raleigh.

111. For examples of cases which used hearsay and past convictions as evidence see Langbein, “Criminal Trial,” 291–93; 300–305; and Baker, Legal Profession, 289–90.

112. Shapiro, “Beyond Reasonable Doubt”, 192; Macnair, Law of Proof, 154–55, shows that in early-modern equity this criterion was commended by Lord Chancellor Emerton and was put into practice in various cases by Lord Chancellor Nottingham.

113. Shapiro, “To A Moral Certainty.”

114. Coquillette, Francis Bacon, 201–2, 206, has pointed to the “very poor resources” we can count on to describe Bacon's activity as head of Chancery.

115. Coquillette, Francis Bacon, 196–201; Klinck, Conscience, 167–69. See Bacon, Speech on Taking his Seat in Chancery, in Letters and Life, vol. 6, 184–87.

116. Jones, Elizabethan Court, 313.

117. See rules 68–79 in Bacon, Ordinances in Chancery, in Works of Francis Bacon, vol. 7, 768–70. On the law of proof in early-modern Chancery, see Macnair, Law of Proof.

118. On Bacon and interrogatories see Cardwell, “Inquisitio rerum ipsarum,” especially chapter 3 and Appendix A. See also Martin, Francis Bacon, 78–84.

119. On the use of torture in early-modern England see Jardine, Reading on the Use, and Langbein, Torture and the Law, part 2.

120. Jones, Elizabethan Court, 214–15, 245–48. See also Cardwell, “Francis Bacon Inquisitor,” 276; Martin, Francis Bacon, 81.

121. Bacon, Ordinances in Chancery, in Works of Francis Bacon, vol. 7, 769, no. 70.

122. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 340.

123. Bacon, Ordinances in Chancery, in Works of Francis Bacon, 769, no. 72.

124. In contrast, the privilege against self-incrimination as applied to witnesses was established in common law courts during the 1640s at the latest. Macnair, “Early Development,” 69–70; 78–79, and Macnair, Law of Proof, 180–83; 185–230; 236. See also Jones, Elizabethan Court, 244–48 and Langbein, “Criminal Trial,” 354.

125. See also Bacon, Tractatus, in Works of Francis Bacon, vol. 1, 812, aph. 39. Cf. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 340

126. Bacon, Certain Considerations touching the Better the Pacification and Edification of the Church of England, in Letters and Life, vol. 3, 114.

127. Bacon, De augmentis scientiarum, in Works of Francis Bacon, vol. 7, 717; Bacon, Advancement of Learning, 136–37. I deal with this topic in a forthcoming article.

128. Macnair, “Early Development,” 71.

129. For another approach see Hanson, “Torture and Truth,” 62–66.

130. Martin, Francis Bacon, 82–83; Langbein, Torture and the Law, 90.

131. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 341.

132. Langbein had shown that in England from 1540 to 1640 torture was mostly used preventively, “to identify and forestall plots and plotters.” See Langbein, Torture and the Law, 90.

133. Bacon, Proclamation of Jurors, in Letters and Life, vol. 3, 390.

134. Bacon, Chudleigh's Case, in Works of Francis Bacon, vol. 7, 619–20.

135. Ibid., 627.

136. This echoes Bacon's ideas on testimonies regarding the facts of nature, Parasceve, in Oxford Francis Bacon, vol. 11, 466–68. Serjeantson, “Testimony and Proof,” 208–21, has rightly pointed out how Bacon's norms for natural history draw a clear distinction between establishing the trustworthiness of the witness behind the testimonies and establishing the res of which the testimony talks about.

137. Digest 18.1.9.1 (Ulpian).

138. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 380–84.

139. Ibid., 380.

140. Cf. Digest 34.5.21 (Paulus).

141. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 381.

142. Ibid., 342, Maxim 4. As Lord Chancellor Bacon applied these criteria for factual certainty, for instance, in Lawson v Marshall, Marshall v Lawson (1618), in Ritchie, Reports of Cases, 103.

143. Ritchie, Reports of Cases, 381.

144. On the application of this rule see Goodrich, Law in the Courts, 150–53.

145. See Baker, Legal Profession, 267.

146. On the differences in judicial torture between Continental Europe and England, see Langbein, Torture and the Law.

147. Bacon, Proclamation concerning Jurors, in Letters and Life, vol. 3, 390–91.

148. Bacon, Reading on the Statute of Uses, in Works of Francis Bacon, vol. 7, 419–20.

149. Bacon, Maxims, in Works of Francis Bacon, vol. 7, 341–42.

150. For instance, Bacon allowed the inclusion of additional facts at the request of the plaintiff and even ordered new reports in order to review his former opinion in Farrington and others v Throckmorton and others, in Ritchie, Reports of Cases, 179–80.

151. Howell, Complete Collection, 899–1023.

152. Bacon, The King's Attorney's Letter to the King touching the Proceeding with Somerset, 22 January 1615, in Bacon, Letters and Life, vol. 5, 231–32.

153. Women were by custom excluded. Baker, Legal Profession, 269.

154. Langbein, “Criminal Trial,” 277–81; Baker, Legal Profession, 269–70.

155. Shapiro, Culture of Fact, 23–25. On problems related to the selection of jurors in the Elizabethan court of Chancery see Jones, Elizabethan Court, 476–77.

156. Bacon, Proclamation concerning Jurors, in Letters and Life, vol. 3, 390–91.

157. Ibid.

158. Bacon, Accusation of Sir John Wentworth, Sir John Hollys and Mr. Lumsden, in Letters and Life, vol. 5, 217.

159. Bacon, Essay on Judicature, in Bacon, The Essayes, 166–67.

160. Bacon, Letter to the King concerning Peacham, 12 March 1614, in Bacon, Letters and Life, vol. 5, 126. On Bacon's participation in interrogatories with warrants for torture see Langbein, Torture and the Law, 85, 116–21. On Peacham's case see Bacon, Letters and Life, vol. 5, 90–129 and Clegg, Press Censorship, 97, 101.

161. Long v Long (1620) in Ritchie, Reports of Cases, 219–20.

162. On Cotton's case see the preface by J. Spedding, Letters and Life, vol. 5, 4.

163. Bacon, Report on the Evidence against John Cotton, Letters and Life, vol. 5, 4–5. The report was also signed by H. Montagu and H. Yelverton.

164. The National Archives, 8ANC7 112–67. On Cotton's case see Clegg, Press Censorship in Jacobean England, 100–101.

165. Corneanu, Regimens of the Mind, ch. 1.

166. Bacon, Advancement of Learning, 183.

167. Bacon, A Confession of Faith, in Works of Francis Bacon, vol. 7, 221.