LIBER OCTAVUS. 825 



Dedecorat enim majestatem legum, et pro praevaricatione qua- 

 piam censenda est. Judicia autem aliquid habere ex scena 

 deforme est. 



APHOKISMUS 92. 



Judicum igitur solummodo, tarn Judicia quam Responsa et 

 Consulta sunto. Ilia de litibus pendentibus, haec de arduis 

 juris quaestionibus in thesi. Ea Consulta, sive in privatis rebus 

 sive in publicis, a Judicibus ipsis ne poscito (id enim si fiat, 

 judex transeat in advocatum) ; sed a Principe, aut Statu. Ab 

 illis ad Judices demandentur. Judices vero, tali authoritate 

 freti, disceptationcs advocatorum, vel ab his quorum interest 

 adhibitorum, vel a Judicibus ipsis (si opus sit) assignatorum, et 

 argumenta ex utraque parte audiunto; et, re deliberata, jus 

 expediunto et declaranto. Consulta hujusmodi inter Judicia 

 referunto et edunto, et paris authoritatis sunto. 1 



De Prcelectionibus. 

 APHORISMUS 93. 



Praelectiones de Jure, atque Exercitationes eorum qui juris 

 studiis incumbunt et operam dant, ita instituuntor et ordinantor, 

 ut omnia tendant ad quaestiones et controversias de jure sedan- 

 das potius quam excitandas. Ludus enim (ut nunc fit) fere 

 apud omnes instituitur et aperitur ad altercationes et quaesti- 

 ones de jure multiplicandas, tanquam ostentandi ingenii causa. 

 Atque hoc vetus est malum. Etenim etiam apud antiques 



modern times the practice has been in accordance with what he a little further on 

 recommends ; the point of law being referred to the j udges directly, who, after 

 hearing counsel, certify their opinion of it to the Chancellor. 



1 Bacon refers to the practice of extra-judicial consultations as it existed in his own 

 time. It does not, I believe, appear that it was ever the practice for private persons 

 to obtain through the intervention of the Privy Council authoritative decisions on 

 legal questions, but it is well known that the Court occasionally obtained " praeju- 

 dicia " from the judges on points in which it was itself interested. The effect of this 

 practice in promoting judicial servility is well seen in the case of ship-money; the 

 extra-judicial decision of the judges in favour of its legality being unanimous, whereas 

 when the case came on in the exchequer chamber, it was affirmed to be legal 

 by a bare majority of seven against five. 



[I cannot think that Bacon alludes to extra-judicial consultations of this kind ; 

 which were conducted in a different way from those he recommends, and resorted to 

 for a different purpose. The object of the Government in asking the judges' opinions 

 on the case privately before commencing a prosecution, was to ascertain that the case 

 was a good one, and so avoid the scandal and disrepute which then attended the failure 

 of a Crown prosecution. The object of the proceeding which Bacon here advocates, is to 

 provide a means of settling any disputed point of law, without either waiting for a real 

 cause in which it may be involved, or getting up a fictitious one ; and the manner of 

 it is to be public and formal. The case is to be regularly argued and the judgment 

 formally recorded. /. ] 



