Of Judicature: Bacon in Practice, and How to Answer on It
Chapter Forty-Eight
Syllabus topic 2.2, "Of Judicature - Francis Bacon"
Pages 234 to 237 of 406
In one line
Nine years after writing that integrity is a judge's proper virtue, Bacon was Lord Chancellor of England, was impeached for taking gifts from people with cases before him, confessed, and never held office again.
What happened, in order
1612. Bacon writes Of Judicature, including the sentence "Above all things, integrity is their portion and proper virtue", and the warning that one foul sentence corrupts the fountain.
1616. Sir Edward Coke, Chief Justice of the King's Bench, refuses to halt a case at the king's command, telling James I that the stay required was a delay of justice and contrary to law and the judges' oath, and obtains his colleagues' signatures to a letter saying so. He is dismissed in November 1616, and Bacon, then Attorney General, was among those who worked for his removal.
1618. Bacon becomes Lord Chancellor, the highest judicial office in England.
1621. He is impeached by Parliament for bribery and corruption: taking gifts from suitors who had cases before him. He does not defend himself. He confesses.
The sentence. A fine of forty thousand pounds, imprisonment at the king's pleasure, exclusion from any office or employment in the State, a bar on sitting in Parliament, and a prohibition on coming within twelve miles of the court.
What was actually enforced. Very little of it. The fine was never collected and his imprisonment in the Tower lasted about three days. But he never sat in Parliament or held office again, and he spent his last five years writing.
What can fairly be said in his defence
An answer that only convicts him is a weak answer. Three things are properly said on the other side, and none of them is an excuse.
One. Gifts from suitors were common. Judicial officers of the period were poorly paid and were expected to receive presents. Bacon was doing what many did, which is a reason the practice needed stopping and not a reason he was blameless.
Two. He decided against the men who gave. In the cases that brought him down, he gave judgment against the two petitioners whose gifts were complained of. His own position was that his judgments were never sold, only that gifts were taken.
Three. He was caught in a political fight. Parliament in 1621 was pursuing the king's favourite, the Duke of Buckingham, and Bacon was reachable where Buckingham was not.
And the answer to all three, which a good candidate supplies. Bacon himself had written that a judge must be free of even the suspicion of by-ways, and that the place of justice is a hallowed place whose precincts must be preserved without scandal. On his own standard, taking gifts from a suitor and then deciding his case is not saved by deciding it against him.
Of Judicature: Bacon in Practice, and How to Answer on It
How to use this in an essay, without moralising
Four positions are available. Take one and argue it.
Position one: the essay is discredited by the author's conduct. The weakest of the four, and easy to attack: rules are not falsified by being broken, or every law would fail the moment somebody disobeyed it.
Position two: the essay is strengthened by it. Bacon knew the temptations of judicial office better than most people who write about them, and the specificity of his warnings, about noted favourites among counsel, about the multiplication of fees, about the suspicion of by-ways, reads like a man describing pressures he had felt.
Position three: the gap is the lesson. A code of conduct that depends on the character of the person applying it will fail, and what the seventeenth century lacked was not good advice but enforcement. Bacon's fall is an argument for institutions rather than for aphorisms.
Position four, the sharpest. Read the essay's fourth head against the Coke episode. Bacon told judges to be lions under the throne, and helped remove from office the judge who would not be one, and was himself destroyed four years later by the Parliament he had told judges not to check. The essay's weakest doctrine, judicial deference to sovereignty, is the one its author enforced, and its strongest, integrity, is the one he failed.
The Coke comparison, which is worth a paragraph on its own
| Bacon | Coke | |
|---|---|---|
| Office | Attorney General, then Lord Chancellor | Chief Justice of the Common Pleas, then of the King's Bench |
| Doctrine on the Crown | Judges should be lions under the throne | Judges are bound by their oath, and a royal order to stay a case is a delay of justice contrary to law |
| Fate | Impeached in 1621 for taking gifts; confessed; barred from office | Dismissed in 1616 for refusing to delay a case at the king's command |
| Afterwards | Wrote for five years and died in 1626 | Returned to Parliament and became a chief architect of the Petition of Right |
What the table is for. It lets a candidate say something exact rather than general: the two greatest lawyers of the age disagreed about the fourth head of this essay, one wrote it and lost office for corruption, the other defied it and lost office for independence, and the modern law of judicial independence follows Coke.
The essay's value to a law student today, in three sentences
It supplies the vocabulary. Jus dicere and not jus dare, the fountain and the stream, the torture of laws, a severe eye on the example and a merciful eye on the person, and lions under the throne are phrases that turn up in judgments and in argument to this day.
Of Judicature: Bacon in Practice, and How to Answer on It
It states the duties in a form that can be remembered under examination conditions, which is exactly what a set of aphorisms is for.
And it is a warning that comes with its own evidence, because its author is the proof that writing the rule is not the difficult part.
What beginners get wrong
They say Bacon wrote the essay to justify himself. He wrote it in 1612 and fell in 1621.
They say he was convicted of selling judgments. He was impeached for taking gifts from suitors, and confessed to that; in the cases complained of he had decided against the givers.
They present the fall as the end of the argument. It is the beginning of it. The question is what a code of judicial conduct is worth, and there are at least four defensible answers.
They leave Coke out. The comparison is the single most useful piece of context available on this essay.
A worked answer
Question. "Bacon preached what he did not practise. Does that destroy the value of Of Judicature?"
Paragraph one, the position. No, but it changes what the essay is good for. It is worth less as the testimony of a good judge and considerably more as evidence that good rules do not enforce themselves.
Paragraph two, the facts, stated fairly. Bacon wrote in 1612 that above all things integrity is a judge's portion and proper virtue, and that one foul sentence corrupts the fountain. He became Lord Chancellor in 1618. In 1621 Parliament impeached him for taking gifts from suitors; he did not defend himself but confessed, and was fined forty thousand pounds, imprisoned at the king's pleasure, and barred from office and from Parliament, though the fine was never collected and the imprisonment lasted about three days.
Paragraph three, what is said for him. That gifts from suitors were then usual among poorly paid judicial officers; that in the cases complained of he decided against the men who had given; and that Parliament was in truth pursuing the king's favourite and reached Bacon because it could not reach Buckingham.
Paragraph four, why none of that saves him on his own terms. He had himself written that a judge must avoid even the suspicion of by-ways and that the precincts of justice must be preserved without scandal. Deciding against a man whose gift you have taken does not answer a standard pitched at suspicion.
Paragraph five, the argument that matters. The proper conclusion is not that Bacon was a hypocrite, which is cheap, but that a system relying on the character of individual judges will fail, and that what the age lacked was not advice but institutions: fixed salaries, rules against gifts, and a means of enforcement. Bacon's fall is the best available argument for the machinery that later replaced his aphorisms.
Of Judicature: Bacon in Practice, and How to Answer on It
Paragraph six, the sharpest point available. The essay's fourth head tells judges to be lions under the throne. Bacon helped drive Sir Edward Coke from office in 1616 for refusing to be one, and was himself brought down by Parliament five years later. The doctrine he enforced is the one modern law has abandoned, and the doctrine he failed, integrity, is the one it has institutionalised.
Quick revision
1612 the essay; 1616 Coke dismissed for refusing to delay a case at the king's command, Bacon among those who worked for it; 1618 Lord Chancellor; 1621 impeached for taking gifts from suitors, confessed.
The sentence: forty thousand pounds, imprisonment at the king's pleasure, barred from office and Parliament, kept twelve miles from court. The fine was never collected; the imprisonment lasted about three days.
For him: gifts were usual; he decided against the givers; Parliament was really pursuing Buckingham.
Against him: his own standard was suspicion, not proof.
Four positions on the gap: it discredits the essay; it strengthens it; it argues for institutions rather than aphorisms; or, read against Coke, it shows him enforcing his weakest doctrine and failing his strongest.
Test yourself
1. When did Bacon write the essay, and when did he fall? He wrote Of Judicature in 1612 for the second edition of the Essays, became Lord Chancellor in 1618, and was impeached in 1621.
2. What exactly was he impeached for, and what did he do? For bribery and corruption, in the form of taking gifts from suitors who had cases before him. He did not defend himself; he confessed.
3. Give the sentence and say how much of it was carried out. A fine of forty thousand pounds, imprisonment at the king's pleasure, exclusion from office and from Parliament, and a bar on approaching within twelve miles of the court. The fine was never collected and he was in the Tower about three days, but he never held office or sat in Parliament again.
4. Why is the Coke episode worth knowing here? Because Coke, as Chief Justice, refused in 1616 to halt a case at the king's command, saying the stay was a delay of justice contrary to law and the judges' oath, and was dismissed for it, partly through Bacon's efforts. He is the contemporary who refused to be a lion under the throne, and modern judicial independence follows him rather than Bacon.
5. State the strongest position on the gap between the essay and the man. That the failure argues for institutions rather than against the rules: a code that depends on individual character will be broken, and Bacon's fall is the best evidence for the fixed salaries, prohibitions on gifts and enforcement machinery that later replaced his advice.
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.