FRANCIS BACON. By Daniel R. Coquillette. Stanford: Stanford University Press. 1992. Pp. x, 358. $39.50.
Francis Bacon, Lord Chancellor of England -- the man who pioneered the scientific method, dreamed of the research university, set forth a prophetic agenda for law reform, and wrote so gracefully that he has been accused of writing Shakespeare's plays -- fell from office when proof emerged that he had taken bribes. The story is old; it remains important.
With Francis Bacon,(1) Daniel Coquillette(2) provides a valuable study of Bacon's legal career and jurisprudential impact. Coquillette makes the most of an exasperating subject, because writing on Bacon means constantly deciding what to leave out. It means choosing between analyzing character and analyzing achievement, as well as sorting out Bacon's jurisprudence and belles lettres from his scientific and philosophical work. As Coquillette notes,
Bacon must have been consigned to a very special purgatory to have
been seriously credited with writing Shakespeare's plays and to have invented
modern science, while being denied credit for the thing he really
did achieve -- the first sustained, analytical, secular, and inductive approach
... Being "scrupulously fair" to Bacon is extraordinarily difficult. It
is hard to penetrate past the continuing controversies about so many
aspects of his life and character, his political ideology, his homosexuality,
his art, his actual ability as a scientist, and his integrity. Even the
place of his burial is shrouded in mystery. But if we focus fairly on the
written record of Bacon's work as a lawyer and a jurist, and particularly
on his legal thought, the picture emerges of a creative, profound and
innovative man, dedicated to his profession and to making genuine progress
in the way we think about the law. [p. viii; footnote omitted] Writing on Bacon means giving explanations. It may also mean resisting the temptation to give apologies. Few thinkers have ever projected as many intellectual structures, and for every one of these structures, so to speak, there is a matching shadow.
Coquillette's focus is close and methodical. He moves steadily through the canon of Bacon's legal works, framing his discussions with biography, until a masterful final chapter pulls Bacon's achievement into full perspective. The approach is one Bacon would have both understood and praised.
In April 1603, James VI of Scotland traveled south to claim the crown of England. At Newark, in Nottinghamshire, his entourage discovered a pickpocket in their midst.
In this town, and in the Court, was taken a cutpurse, doing the deed;
and being a base pilfering thief, yet was all Gentleman-like on the
outside. This fellow had [a] good store of coin found about him: and,
upon his examination, confessed that he had, from Berwick to that place,
played the cutpurse in the Court. His fellow was ill missed, for no doubt
he had a walking mate. They drew together like coach horses, and it is
pity they did not go hang together. For His Majesty, hearing of this
nimming gallant, directed a Warrant presently to the Recorder of Newark,
to have him hanged: which was accordingly executed.(3) English institutions and attitudes were malleable; hence arose the crisis that the common law would face under the Stuarts. The author of The Trew Law of Free Monarchies(4) was eager to take a personal hand in ruling. The men who worked the nation's justice system were willing to listen to royal suggestions. The population also approved. The people of Newark took it for granted that a king could hang a pickpocket, just as their cousins in London would take it for granted that a Danish prince could order the death of two courtiers.
During the era James's accession ushered in, Bacon's ambition and intellectual arrogance would both make and damage his reputation. He would be remembered as a clever and eloquent man, capable of using changing times to put forward new ideas, but, at the same time, as someone who was too much the supple tool of power, who would scheme and toady and seek to replace the common law with civil law. In the demonology of Whig historians, Bacon became the opposite of his great rival Edward Coke -- the common lawyer, common law judge, and resolute and selfless proponent of judicial independence, parliamentary government, and English liberties.
There is some truth to this caricature. Bacon's Essays explored Cunning, Ambition, Negociating, Great Place, and Fame, as well as Judicature, Truth, and Love.(5) His views on judicial politics reveal the compromise he was willing to strike with royal absolutism: "[I]t is a happy thing in a state when kings and states do often consult with judges; and again when judges do often consult with the king and state ... when there is some consideration of state intervenient in matter of law."(6) In order to further his own intellectual agenda, Bacon was willing to embrace his monarch's political agenda. But what he sought to achieve through such compromises was original and often foresighted:
Much of Bacon's work on legal method, including theories of statutory
interpretation, evidentiary process, legal drafting and legal information
systems, seems strangely familiar. Like his aphorisms and essays, we
have the sense we have heard it before. The true impact of Bacon's originality
comes when we look at his juristic predecessors and contemporaries.
Then we realise that we have heard it before, many times, but that
Bacon usually said it first. [p. 277]
Perceptively, Coquillette points out that Bacon made a career for himself within the common law context. He sat in every Parliament between 1581 and 1618, leaving the House of Commons only when King James raised him to the Lords. He called himself a "professor of the Common Law,"(7) someone who understood and believed in the common law. In 1600, when he lectured on the Statute of Uses, he spoke as a lawyer who had helped argue the winning side of Chudleigh's Case.(8)
Although Bacon never achieved the success that attended Coke, he took a prominent role in many of the great cases of his day -- first as a lawyer, then as James's Solicitor General (1607-1613) and Attorney General (1613-1617).(9) Coquillette's third chapter, "The Theorist as Advocate," samples the spectrum of litigation in which Bacon was involved (pp. 127-89). Slade's Case opened the door to modern contract law by upholding the availability of assumpsit to contract plaintiffs.(10) The Case of Impeachment of Waste involved a classic dispute between a life tenant and her remainderman.(11) The Jurisdiction of the Council
of the Marches dealt with the jurisdiction of prerogative courts.(12) Calvin's Case, in which Bacon argued for the Crown, was the greatest political decision of its day -- the test case that settled whether Scots had Englishmen's rights in England, now that a Stuart king ruled both kingdoms.(13)
In all of these cases Bacon demonstrated three traits. The first, often
overlooked by his critics, was his dedication to the advocacy process, his
love of the give-and-take of rational discourse and legal argument. This
love of "testing" propositions and theories was directly linked to his second
great trait, his systematic and scientific approach to legal advocacy. . . .
Finally, Bacon's later arguments revealed his growing interest
in a legal science that was directly instructed by natural philosophy and
the study of linguistics. [p. 175]
Bacon's role as a member of Parliament led to his earliest surviving legal works: reports on reformatories, crown prerogatives and ownership rights, and advowsons.(14) His first essay in jurisprudence, A Collection of Some Principal Rules and Maximes of the Common Lawes,(15) known briefly as the Maximes, also fell within the common law tradition. A large number of common lawyers had sought to extract principles from the mass of precedents in the Year Books. The Maximes, however, transcended the black-letter mentality. The work brought together twenty-five maxims, aphorisms which Bacon interchangeably called regulae, from Latin, and maximes, from Law French. For each maxim, Bacon pursued the same approach:
First, he set out the maxim in Latin, without translation. Next, 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.
Then Bacon listed specific examples illustrating the operation of
the maxim. These often came from actual yearbook cases. . . . Finally,
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.
In Bacon's hands, Justinian's dictum on the rights established by bloodlines, jura sanguinis nullo jure civili dirimi possunt, became the focus of Regula XI's discussion of conviction and pardon. Regula III, verba fortius accipiuntur contra proferentem, Bacon translated as "[a] man's deeds and words shall be taken strongliest against himself" (p. 41); he used it as the basis of a discussion that wound through the construction of deeds, judicial decisions as to what was admitted or denied by pleadings, and, finally, issues of statutory construction. Sir William Holdsworth, in his monumental A History of English Law, recognized the importance of this work:
Bacon's little book on the Maxims of the Law shows that if he had
had the leisure to accomplish [his] scheme of reform, he, and he alone,
was the man for the task. Many another lawyer could have stated legal
propositions accurately. He alone had the philosophical capacity, the
historical knowledge, and the literary taste needed to select the subject
matter and to shape the form of the books in which English law was to
be restated. And, if his scheme had been...