Bacon's Maximes, ca. 1600
Bill Long 11/27/05
If We Only Knew What They Meant...
The purpose of this and the next mini-essays is to introduce us to the problem and the meaning of three of Bacon's 25 maximes or regulae (maxims or rules). Though there is reference in his work to more than 300 maxims which he, at one time or another, had been working on, only 25 have come down to us. They were translated into English in one place for the first time only in the mid-1980s (77 L Lib J 707 (1984-85)), and would repay more detailed study, which I hope to do in the future. In the mean time, the helpful 1992 intellectual biography of Bacon by law professor Daniel Coquillette along with assorted law review articles will get us started. The two questions of interest to me here are: (1) What kind of work are the maximes? and (2) Do we have any idea what three of the more prominent ones (#s 1, 5, and 23) really mean?
(1) The Nature of the Maximes
As Coquillette argues, the "Collection of Some Principal Rules and Maximes of the Common Lawes," drafted in the first decade of the 17th century, was Bacon's first work of jurisprudence. For more than three centuries prior to 1600 a large number of common lawyers had tried to extract principles from the published reports in the Year Books. But the "Maxims" did more than simply draw out principles. It sought also to temper the principles with attention to the facts of various reported cases. His method consisted of three things. As explained by Coquillette, first, he set out the maxim in Latin, without translation. Second, there was a general discussion. This frequently restated the maxim, occasionally provided a direct translation, and always analysed the important elements of the regula. In addition, there were frequently policy justifications. Third, Bacon listed specific examples illustrating the operation of the maxim. These often came from actual yearbook cases. Finally, as part of the third step, Bacon concluded each discussion by setting out the exceptions to the maxims in a final step of "negation" or "definition by exception" that was to become an important part of Bacon's philosophical method.
(2) The Meaning of the Maximes
Maxim # 1
The first sentence of the first maxim stops you in your tracks. The Latin runs as follows: "In jure non remota causa, sed proxima spectatur." The translation actually is fairly straightforward: "In law it is not the remote, but the immediate (proximate) cause which is regarded." When you do a quick journals and law reviews search for references to this maxim, many articles arise, almost all of them dealing with the niceties of tort law, for the issue of "proximate" cause has for quite some time been a crucial issue in understanding legal liability for injury.
Indeed, Bacon's explanatory paragraph following the maxim seems to tie it closely with what we would understand tort law to cover: "It were infinite for the law to judge the cause of causes, and their impulsions one of another; therefore it contenteth itselfe with the immediate cause, and judgeth of acts by that, without looking to any further degree." As one scholar suggests, this formulation appears to be a bridge between medieval notions differentiating proximate and remote cause and more modern formulations of tort liability. However, when you examine the examples given by Bacon to illustrate his maxim, none of them arise from tort law. As Professor Patrick Kelley says,
"[c]loser examination of the examples Lord Bacon gives of his first maxim suggests that the maxim was intended as a way of understanding and perhaps categorizing a set of seemingly disparate legal rules, primarily drawn from the land law. Not one of the examples Bacon uses to illustrate this maxim is from what we would now call a tort personal injury case: there is no example from the law of trespass or of case. The only intentional harm case Bacon cites is a criminal case, to which he says the maxim does not apply" (69 Wash U Law Q 49 (1991)).
Kelley also mentions that no substantive rules for the law of trespass or trespass on the case before 1630 embodied Bacon's maxim. It is not until early in the 19th century that we have anything close to this in tort law. Therefore, though people often point to Bacon's rule as the great link between medieval scholastic philosophy and modern tort law, it may be nothing of the kind. He concludes, "The search for an embryonic, primitive proximate cause doctrine in the early common law thus comes to an ironic conclusion. What at first seemed to be the key to a coherent historical explanation of the continuous development of proximate cause doctrine in tort law from the early common law to today turns out to be strong evidence against such a continuous development."
This conclusion is actually more encouraging than it seems. It forces us back to the sources themselves, a concept with which Bacon would have resonated deeply, before trying to place Bacon easily in the stream of a historical tradition in the development of tort law. Thus, we don't really know what the maxim means, even though we can translate it easily.
Maxim # 5
I think we are on much more firm ground for understanding maxim #5. The Latin reads: "necessitas inducit privilegium quoad jura privata." It may be translated as "necessity introduces a privilege with respect to private rights." Bacon goes on to explain that since the law charges no person with liabilty where the act is compulsory and not voluntary, and where there is really no consent,
"therefore if either there bee an impossibility for a man to do otherwise, or so great a perturbation of the judgement and reason as in presumption of law mans nature cannot overcome, such necessity carrieth a priviledge in it selfe."
Among the examples illustrating maxim or regula # 5, Bacon wrote:
"So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable."
In the same rule, Bacon stated that stealing bread to satisfy present hunger "is no felony." This rule is interesting also because it gives us insight into the developing doctrine of homicide. Taking the plank from another person to save your own life is not murder (what Blackstone calls "felonious homicide"); it is not "se defendendo" (self-defense, which Blackstone puts under excusable homicide); it is not "misadventure," which Blackstone puts under "justifiable homicide." It seems to be another species of "justifiable" homicide.
Let this suffice for two of the maxims. The next will treat that most difficult of all, maxim # 23.
1536
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