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of fortitude and valour. For fortitude distinguisheth of the grounds of quarrels whether they be just; and not only so, but whether they be worthy, and setteth a better price upon men's lives than to bestow them idly; nay, it is weakness and disesteem of a man's self to put a man's life upon such liedger performances: a man's life is not to be trifled with; it is to be offered up and sacrificed to honourable services, public merits, good causes, and noble adventures. It is in expense of blood as it is in expense of money; it is no liberality to make a profusion of money upon every vain occasion, nor no more it is fortitude to make effusion of blood, except the cause be of worth.'
With the view of repressing this depraved custom of duelling,—this fond, false disguise or puppetry of honour, as Bacon called it,he suggests that there should be declared a constant and settled resolution in the state to abolish it; that care should be taken that this evil be no more cockered, nor the hu
mour of it fed ; that all persons found guilty of this offence, should be punished by the Star-Chamber, and those of eminent quality, likewise, banished for some time from court.*
We have seen that, in the very first
* The Court, in this case, decreed, that the principal and second should be committed to the Fleet; the former to be fined five hundred pounds, and the latter, five hundred marks. They were also to make a public acknowledgment of the offence at the next assizes, and to show themselves penitent for the same.—Bacon's Works, vol. 6, p. 135. The subject of Duelling is discussed in a very lively and able manner by Dr. Mandeville, in the second dialogue of the second volume of his Fable of the Bees. Abp. Whately (a name never to be mentioned by us without respect,) supposes, in his Political Economy, p. 47, that this second volume (which is rather a scarce book,) had never been seen by Adam Smith, whose critique on the first has been so much admired. His Grace, however, overlooked the fact, that Adam Smith, in an excellent letter to the authors of the old Edinburgh Review of 1755, expressly says,
that the second volume of the Fable of the Bees has given occasion to the system of M. Rousseau, in whom, however, the principles of the English author are softened, improved, and embellished,' &c. &c. See p. 130, second edition.
speech which he delivered in Parliament, Bacon called the attention of the House to the subject of Law Reform. He now prepared a proposition to his majesty for the reducing and recompiling of the law.* 'For the laws of England,' he eloquently said, “if I shall speak my opinion of them, without partiality either to my profession or country, I hold them wise, just, and moderate laws; they give to God, they give to Cæsar, they give to the subject, what appertaineth. It is true they are as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs; and surely as our language is thereby so much the richer, so our laws are likewise, by that mixture, the more complete. I have commended them for the matter, but they ask much amendment for the form, which to reduce and perfect, I hold to be one of the greatest dowries that can be conferred upon this kingdom.' He begins by combating the various objections urged, or likely to be urged, against his proposal.
* Bacon's Works, vol. 5, p. 337.
It may be objected, he observes, that it is a thing needless; that the law, as it now stands, 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, to provide against the incertainties, or evasions, or omissions of law. For the comparison with foreign laws, it is in vain,' says Bacon, '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, he adds, that our laws are subject to great uncertainties, variety of opinion, delays, and evasions.
Again, it is said, that labour would be better bestowed in bringing the common law to a text-law, as the statutes are, and setting both of them down in method and by titles ; in other words, in framing a Code. 'It is too long a business to debate,' replies Bacon, '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. Customs are laws written in living tables. In all sciences, they are the soundest that keep close to particulars; and sure I am, there are more doubts rise upon our statutes, which are a text-law, than upon the common law, which is no text-law.'
Again, it is objected, that it will turn the judges, counsellors, and students to school again, and impose upon all lawyers a new charge for books of law. For the former of these, touching the new labour, it is true,' says Bacon, that it would follow, if the law were new molded into a text-law; for then men must be new to begin, and that is one of the reasons for which I disallow that course. But, in the way that I shall now propound, the entire body and substance of law shall