Bacon, Of Judicature: the Essay
Chapter Forty-Six
Syllabus topic 2.2, "Of Judicature - Francis Bacon"
Pages 224 to 227 of 406
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.
Bacon, Of Judicature: the Essay
The objection a modern student should be ready to make. Judges do make law, and everybody now admits it: they decide cases no rule covers, they interpret ambiguous statutes, and in a common law system their decisions bind later courts. The interesting question is not whether Bacon was right but what he was warning against, and the answer is the judge who reaches the result he prefers and then dresses it as discovery. Read that way the sentence is a warning about honesty, not a description of what courts do.
The qualities Bacon wants in a judge
Three pairs, in one sentence, and each pair sets a virtue against its counterfeit.
| The quality | The counterfeit it is set against |
|---|---|
| Learned | Witty |
| Reverend | Plausible |
| Advised | Confident |
Judges ought to be more learned, than witty, more reverend, than plausible, and more advised, than confident.
Read the pairs properly. Witty here means clever and quick, plausible means winning and easy to like, and confident means sure of oneself. Bacon is not against cleverness; he is saying that in a judge the quieter quality of each pair must be the stronger. And then he settles the matter in one clause: "Above all things, integrity is their portion and proper virtue."
The landmark, and the fountain
Bacon then gives two images for the harm a corrupt judge does, and both are quotable.
The landmark. "Cursed (saith the law) is he that removeth the landmark." A landmark, or mere-stone, is the boundary stone between two properties. Moving one is a small and secret fraud with a large effect. Bacon says the man who mislays a mere-stone is to blame, but the unjust judge "is the capital remover of landmarks, when he defineth amiss, of lands and property."
The fountain. This is the sentence to memorise.
One foul sentence doth more hurt, than many foul examples. For these do but corrupt the stream, the other corrupteth the fountain.
What it means. A bad act by a private person is a pollution of the stream: real harm, but downstream and local. A bad judgment is a pollution of the source, because everything that comes afterwards flows from it. Bacon supports it with a line he attributes to Solomon: a righteous man falling down before the wicked is as a troubled fountain and a corrupt spring.
How a law student should use it. It is the best short statement of why judicial corruption is treated as worse than ordinary crime, and it is also, incidentally, an argument about precedent: a wrong decision does not stay in its own case.
The four heads, announced
The essay then divides itself, and the division is the structure of everything that follows.
Bacon, Of Judicature: the Essay
The office of judges may have reference unto the parties that use, unto the advocates that plead, unto the clerks and ministers of justice underneath them, and to the sovereign or state above them.
Those four are the subject of the next chapter of these notes. Learning them in Bacon's own order is the single most useful thing to do with this essay, because almost any question on it can be answered by taking the relevant head and unpacking it.
The style: why it reads as it does
It is aphoristic. An aphorism is a short pointed statement of a general truth. Bacon writes in them, one after another, with very little connecting material, which is why the essay is so quotable and why it can feel abrupt.
It is dense with Latin and Scripture. Bacon quotes the Vulgate, Solomon, and the Roman Twelve Tables, and usually translates or paraphrases in the same breath. A student should quote the Latin only where the English is given beside it in the essay itself.
It is addressed to judges, not about them. The mood is advisory throughout: judges "ought to remember", "ought to beware", "must beware". It belongs to a very old form, the book of advice to those in office.
A sentence you can use about the style. Bacon compresses a whole doctrine into a clause and then moves on, so that the essay reads less like an argument than like a set of rules cut in stone.
What beginners get wrong
They translate jus dicere and jus dare wrongly, or not at all. Bacon translates them himself in the same sentence: to interpret law, and not to make law or give law.
They date the essay after Bacon's fall. It was written in 1612; the impeachment was in 1621.
They quote "one foul sentence" without the second half. The image only works with the stream and the fountain.
They treat the essay as a general piece on justice. It is specifically about the office of a judge, under four heads, and an answer that does not use the four heads has not used the essay.
A worked answer
Question. Reference to context: "Judges ought to remember, that their office is jus dicere, and not jus dare."
The two-sentence answer. These are the opening words of Francis Bacon's essay Of Judicature, essay 56 of the Essays or Counsels, Civil and Moral, written in 1612 while Bacon was a law officer of the Crown and six years before he became Lord Chancellor. Bacon translates the Latin himself in the same sentence, to interpret law and not to make law or give law, and he supports the rule by comparing a law-making judge with the authority claimed by the Church of Rome, which under pretext of expounding Scripture adds and alters and introduces novelty under a show of antiquity.
Bacon, Of Judicature: the Essay
If the examiner asks for comment as well. Add that modern courts openly accept that judges make law in interpreting statutes and developing precedent, so that Bacon's rule is best read today not as a description of what judges do but as a warning against the judge who decides what he prefers and then presents the choice as a discovery.
Quick revision
Francis Bacon, 1561 to 1626, Lord Chancellor 1618 to 1621. Of Judicature written 1612, essay 56 in the 1625 edition of fifty-eight essays.
The opening: the office of a judge is jus dicere and not jus dare, to interpret law and not to make law, and the Church of Rome is the comparison.
The qualities: more learned than witty, more reverend than plausible, more advised than confident, and above all integrity.
The landmark: the unjust judge is the capital remover of landmarks.
The fountain: one foul sentence does more hurt than many foul examples, because the examples corrupt the stream and the sentence corrupts the fountain.
The four heads: the parties that sue, the advocates that plead, the clerks and ministers underneath, and the sovereign or State above.
The style: aphoristic, dense with Latin and Scripture, and advisory in mood.
Test yourself
1. Translate jus dicere and jus dare, and say who supplies the translation. To declare or state the law, and to give or make law. Bacon supplies both translations himself in the opening sentence: to interpret law, and not to make law, or give law.
2. Why does Bacon bring in the Church of Rome? As the example of an authority which, while claiming only to expound a text, adds to it and alters it, pronounces what it does not find there, and passes off novelty as antiquity. That is what he says a law-making judge does.
3. Explain the image of the stream and the fountain. Bad conduct by private persons corrupts the stream, doing real but local harm downstream. A single unjust judgment corrupts the fountain, the source from which everything afterwards flows, and so does more damage than many bad examples.
4. When was the essay written, and why does the date matter? In 1612, for the second edition of the Essays. It matters because Bacon became Lord Chancellor only in 1618 and was impeached in 1621 for taking gifts from suitors, so he set out the standard years before he failed it, and the essay is not a defence written after the event.
5. What are the four heads under which Bacon organises the judge's duty? To the parties who sue, to the advocates who plead, to the clerks and ministers of justice underneath him, and to the sovereign or State above him.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.