810 DE AUGMENTIS SCIENTIARUM 



APHORISMUS 31. 



Exempla in consilium adhibentur, non utique jubent aut 

 imperant. Igitur ita regantur, ut authoritas praeteriti temporis 

 flectatur ad usum praesentis. 



Atque de Informatione ab Exemplis 3 ubi Lex deficit, haec 

 dicta sint. Jam dicendum de Curiis Praetoriis et Censoriis. 



De Curiis Pr&toriis et Censoriis. 1 

 APHORISMUS 32. 



Curiae sunto et jurisdictiones, quae statuant ex arbitrio boni 

 viri et discretione sana, ubi legis norma deficit. Lex enim 



1 M. Bouillet remarks that every one who has commented on this tract of Bacon's has 

 condemned the institution of these Courts. M. Dupin is evidently much perplexed by 

 them. " Hie mera Utopia proponitur " is the commencement of his note on the thirty- 

 second aphorism. Doubtless it is odd that in inquiring how the law may be made 

 certain Bacon should have introduced two Courts, of which the distinguishing cha- 

 racter is the absence of any kind of certainty. But to every one who is acquainted 

 with the history of English law, it is manifest that Bacon's intention was to give an 

 idealised description of the Court of Star-Chamber, and of the equity jurisdiction 

 of the Court of Chancery. Of the two institutions which he thus indirectly praises it 

 is not necessary to say much. The Court of Star-Chamber, though of use in parti- 

 cular case-; was unquestionably on the whole, an instrument of injustice and op- 

 pression ; while, on the other hand, if equity had continued to be as indefinite as the 

 jurisdiction of the " curise praetorise," it would soon have become a more intolerable 

 evil than any which it could have been applied to relieve. 



[The apparent inconsistency of introducing these discretionary tribunals into a 

 scheme specially designed to make the operation of the law certain, admits, in my 

 opinion, of a satisfactory explanation. The uncertainty of the law is injurious in two 

 ways. On the one hand, it may lead me to expect that if I observe certain prescribed 

 conditions, my liberty will not be interfered with ; and when I think I have observed 

 them, it may, by some arbitrary or unexpected interpretation, take me up and send me 

 to prison. On the other hand, it may lead me to expect protection against particular 

 kinds of injury, or (failing protection) redress ; and, from some defect in its pro- 

 visions, it may fail to prevent the injury or to afford the redress. The first kind of 

 uncertainty resides in the interpretation, the second in the framing, of the law ; and 

 against both it is necessary, as far as may be, to provide. The perfect remedy is a code 

 of laws so framed as to provide expressly for every possible case, coupled with a rule of 

 interpretation which leaves no discretion whatever to the judge. But this is for Uto- 

 pia. No lawgiver can perfectly foresee either the conditions of cases or the effect of 

 words. Laws will therefore pass occasionally, which, if strictly construed, will punish 

 the man whom they were intended to protect, and protect the man whom they were 

 intended to punish. To correct such errors, a discretion must be allowed somewhere 

 in the administration of the law ; and the question is, where ? According to Bacon's 

 scheme, the necessary discretion is to be confided, not to the ordinary tribunals, but to 

 others specially constituted for the purpose, and acting under restrictions and regula- 

 tions specially framed to prevent them from abusing it ; lest, in correcting one kind of 

 uncertainty, uncertainties of another kind be introduced. What these restrictions 

 and regulations should be, the rest of the section is occupied in explaining. 



Now, to supply the detects of the law by the exercise of this kind of discretion was the 

 proper function of the Star-Chamber and the Court of Chancery ; and I see no occasion 

 to seek further for Bacon's motive in introducing ' an idealised description " of those 

 Courts, or, I should rather say, a description of two Courts constituted as, in a per- 

 fect administrative system, the Star-Chamber and the Court of Chancery ought to be. 



With regard to the character of the actual Star-Chamber, we are not to forget that Bacon 

 was not the only eminent jurist who approved of it. Sir Edward Coke, in the fourth book 



