Bacon and Coke I
Bill Long 12/14/04
A Sixteenth/Seventeeth Century Saga
One way to gain a window into an era is through studying the lives and commitments of its significant individuals. Powerful individuals mirror and instantiate the values of an era, and the reasons for their appeal, their passions, their idiosyncracies and accomplishemnts often tell us more about a period than volumes of political or military history. Thus, the "Age of Shakespeare," or "the Elizabethan Age" or the "late Tudor-early Stuart" time, or whatever you call it, might also appropriately be called the "Bacon-Coke era." In order to understand this statement, we must meet the men in this and the next mini-essays.
Francis Bacon (1561-1626)
Bacon was the most diverse intellectual of his day, a rather remarkable achievement in a time of remarkable men and one woman (Queen Elizabeth). As one encyclopedia article on Bacon has it: he "was an English lawyer, statesman, essayist, historian, intellectual reformer, philosopher, and champion of modern science." Though his biography and personal fortunes is beyond the scope of this mini-essay, it is helpful to note that from his early days he proclaimed all knowledge as his province and pursued his varied career in law and government as an expression of this commitment. I am especially drawn to Bacon both because of the comprehensiveness of his intellectual vision and his commitment to make himself clear and accessible in his writing.
I believe that the most signal contribution of Bacon was not just his commitment to a new mode of scientific discourse (replacing Aristotelian deduction with empirical science), but to a new way to conceptualize knowledge. That is, he wanted to see how the inherited traditions of the West could be transformed into useful applications for his society.
This goal is no more evident than in one of his least inspiring (from a literary point of view) works, The New Atlantis (1626). This unfinished work (and many of the works of such a comprehensive intellect must remain unfinished at his death), is a fictional description of "Salomon's House," a centrally oganized research facility where specially trained teams of investigators collect and arrange data and use it in the development of new knowledge that is useful for the society. This description served as an inspiration for the British Royal Society as well as the modern research institute.
Bacon made singificant contributions to law, especially relating to principles that ought to inform judges as they interpret law. Among his legal works are Maximes of the Law (1596-97); Reading Upon the Statute of Uses (1600); and jurisprudential sections of Advancement and Proficiencie of Learning (1623). He was the King's Solicitor General (1607), Attorney General (1613-18) and finally Chancellor (1618-21), before being disgraced and having to withdraw from public life in the early 1620s.
Bacon's Jurisprudence in a Nutshell
Central to Bacon's jurisprudential theory is his discussion in sec. 56 ("Of Judicature) in his Essays (published 1625).
"Judges ought to remember that their office is 'jus dicere,' and not 'jus dare;" to interpret law, and not to make law, or give law; else will it be like the authority claimed by the church of Rome, which under the pretext of exposition of scripture, doth not stick to add and alter, and to pronounce that, which they do not find, and by shew of antiquity to introduce novelty."
If, as the Scriptures say, the mislayer of a mere stone is to blame ("Cursed be he that removeth the landmark"--Deut. 27:17), then the "unjust judge" who is the capital remover of landmarks when he "defineth amiss of lands and property" must bear even greater obloquy. "One foul sentence doth more hurt than many foul examples..." He goes on to say: "Judges must beware of hard constructions, and strained inferences; for there is no worse torture than the torture of laws: especially in case of laws penal, they ought to have care that that which was meant for terror be not turned into rigour.."
Law's Certainty
We see in Bacon, therefore, a man who is committed to the certainty of the laws. As he says in Aphorism VIII in Of the Advancement of Learning, "Certainty is so Essential to a law, as without it a law cannot be just; si enim incertam vocem det Tuba, quis se parabit ad Bellum?" I like his liberal use of Scripture, as if the very words of the sacred text inform and shape his mind. The Latin just quoted is from St. Paul, "If the trumpet gives an uncertain sounds, who will get ready for battle?" Thus, "a law ought to give warning before it strike: and it is a good Rule, That is the best law which gives least liberty to the Arbitrage of the Judge."
Bacon will allow a place for equity, however, and even served as Chancellor (the judge in the equity court) for three years, but is very hesitant to allow much leeway for common law judges to shape the future of the law. In so holding, he was being a faithful follower of his patron, King James I, whose theory of divine right of kings had the corresponding theory of the subordination of common law judges to the will (and whim) of the King. But this theory was inimical to the leading advocate of the common law in that era, Edward Coke (pronounced Cook). To understand that conflict, we need to understand a bit about Coke.
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