Bacon, Of Judicature: the Essay

In one line

Of Judicature is a short essay by Francis Bacon setting out what a judge owes to the people who sue, to the lawyers who plead, to the court's own officers, and to the State, and it opens with the sentence that has been quoted about judges ever since.

In the wording a student can write in an examination: Of Judicature is essay 56 of Bacon's Essays or Counsels, Civil and Moral, written in 1612, in which the office of a judge is defined as jus dicere and not jus dare, and the judge's duty is then set out under four heads, namely his duty to the parties, to the advocates, to the clerks and ministers of justice, and to the sovereign or State.

The author, and where the essay sits in his life

Francis Bacon, 1561 to 1626, lawyer, member of Parliament, philosopher of science, and Lord Chancellor of England from 1618 to 1621.

The Essays went through three editions. The first, in 1597, had ten essays. The second, in 1612, had thirty-eight, and Of Judicature is one of the new ones. The last, in 1625, had fifty-eight, and the essay stands at number 56 there.

The date matters and is often got wrong. Of Judicature was written in 1612, six years before Bacon became Lord Chancellor and nine years before he was impeached for taking gifts from suitors. He wrote the rules first and broke them afterwards, which is the whole subject of the third chapter in this set. He did not write the essay to justify himself, because the fall had not happened.

The opening sentence, which is the thing to know

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.

The Latin, translated by Bacon himself in the same sentence. Jus dicere means to declare or state the law. Jus dare means to give law, that is, to make it. Bacon supplies the English immediately, so a student never needs to guess.

What the proposition claims. That a judge's function is to find out what the law already is and apply it, not to decide what the law ought to be and impose it.

Bacon's own reason for it. He compares a judge who makes law with the authority claimed by the Church of Rome, which "under pretext of exposition of Scripture, doth not stick to add and alter; and to pronounce that which they do not find; and by show of antiquity, to introduce novelty." The charge is that a law-making judge pretends to be discovering what he is in fact inventing, and pretends that his novelty is ancient.