« ForrigeFortsæt »
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 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 thereof. For the latter, touching the new charge, it is not worthy the speaking of in a matter of so high importance; it might have been used of the new translation of the Bible, and such like works. Books must follow sciences, and not sciences books.'
Bacon then proceeds to develop his plan of reform. It consists of two parts,-the digest or recompiling of the common laws, and that of the statutes. In the first, three things are to be done:
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.
Having offered various judicious suggestions on these several heads, he then adverts to the reforming and recompiling of the statute law, proposing that all obsolete acts should be expunged from the statute-book, the grievousness of the penalty in many of them mitigated, and lastly, that all concurrent statutes should be reduced to one clear and uniform law.*
The extreme severity of the criminal law long continued deeply to stain our jurisprudence. In the time of Bacon, the rack did not remain idle, and if suspected of treason, a man was questioned before torture, in torture, between torture, and after torture,' upon the authority of a mere warrant from the king or his council. That this was most repugnant to the opinions and the feelings of Bacon, the general humanity of his character, apart from all other considerations, would alone induce us to suspect. His suggestion for mitigating the grievousness of the law, abundantly proves how much he was in advance of his age. The story about Haywarde's book, published in the reign of Elizabeth, is too illustrative of the humanity and wit of our author to be omitted, and we shall give it in his own graphic words: 'Her majesty,' said Bacon, being mightily incensed with that book which was dedicated to my lord of Essex, being a story of the first year of king Henry IV., thinking it a seditious prelude to put into the people's head boldness and faction, said, she had an opinion that there was treason in it, and asked me if I could not find any places in it that might be drawn within case of treason: whereto I answered ; For treason surely I found none, but for felony very many; and when her majesty hastily asked me, wherein? I told her, the author had committed very apparent theft; for he had taken most of the sentences of Cornelius Tacitus, and translated them into English, and put them into his text. And another time, when the Queen would not be persuaded that it was his writing whose name was to it, but that it had some more mischievous author; and said, with great indignation, that she would have him racked to disclose his author: I replied; Nay, madam, he is a doctor, never rack his person, but rack his style; let him have pen, ink, and paper, and help of books, and be enjoined to continue the story where it breaketh off, and I will undertake, by collating the styles, to judge whether he were the author or no.'*
* From his letter to Bishop Andrews, it appears that Bacon had himself purposed to make a particular digest or recompilement of the laws; but this he laid aside, because it is a work of assistance, and that which he could not master by his own forces and pen.'-Bacon's Works, vol. 7, p. 116.