Bacon’s “Of Judicature”

Summary, Explanations and Analysis

Part I

In the 17th century relations between the courts and the executive grew sour over the question
of authority as situation escalated into a power struggle in matters concerning both wings of
administration. The Stuart kings and the judges were embroiled in a tug-of-war over the judges’
right to decide questions affecting the royal power and even to pronounce an independent
judgment in cases in which the king had an interest. Francis Bacon in his essay ‘Of Judicature’
provides an exposition of the various roles and duties expected from a righteous judge, however
this essay has a two-fold significance; it is an abstract statement of the functions of rights and
virtues and defects of the judges, whose hallowed office is ideally supposed to administer the
law of man after the model of God, who is the supreme law giver and the dispenser of justice
in the created world. At the same time, the ulterior motive of Bacon to support the Royalist
point of view comes to light at the very end of the essay when through a minor veiled reference;
Bacon makes his stance clear wherein it is asserted how judges are supposed to be subordinate
to the authority commanded by the Crown.

The function of the judges is to interpret law and not to frame it or impose it. Bacon has made
a comparison between the corrupt judges with the Church of Rome's erstwhile practices. In the
guise of exposition the Catholic Church often altered and added to the Holy Scriptures; citing
antiquity they would exploit the general masses by introducing novel ideas; according to Bacon
corrupt and unjust judges inflicts similar injustice upon people. They are expected to be more
learned than ingenious, more respectable then affable, more cautious than bold. Their most
valuable quality is integrity.
According to the Holy Scriptures someone who removes even a mere stone is worthy of curses.
A judge who is corrupted, who is not dignified, has been equated with the capital remover of
landmarks since one unjust decree passed by them proves to be more detrimental to the society
than the actions of petty miscreants who sabotage landmarks. Perversion of justice poisons the
very source of moral life. Here, an analogy is presented where miscellaneous criminals have
been compared to the corrupted stream of morality whereas unjust judges have been deemed
to be the polluted source or origin of the very stream. Judges should rely on his learning rather
than his wisdom. They should be open to advices so that the general mass can approach them
with their concerns.
The judges, while discharging their official duties, deal with the parties in lawsuits, the pleaders
and advocates, ministers of justice and the clerks working under them, and above all with the
Crown (the King).

Bacon opens the second paragraph by observing how judgement is often turned into wormwood
for some when they encounter injustice whereas delays render their experience sour like
vinegar. The principal duty of the judge is to prevent force and fraud. The most dangerous
perpetration of forceful activity happens before everyone to witness, whereas fraud usually
takes place behind closed curtains. Controversial and scandalous appeals and suits, which
appear irrelevant, should be thrown out of the court. Bacon next compares a righteous judge to
God: as God has created plain lands but raised valleys to balance his creative scope, in the same
way judges should also balance their action by maintaining harmony. He should strike down
upon the over-bold parties who make wrong use of their power, and at the same time he must
favour the weaker lot in order to prevail justice and equality. They should hold the scales even
by upholding the cause of the party who has justice on his side, when his adversary is out to
overbear by a combination of violence, ingenuity and powerful advocacy.
If the wine machine is operated too harshly then it yields bitter wine. Judges must be aware of
the hard construction of laws. They should refer to laws to ward off criminality and not to
oppress people with difficult coercions. Penal laws which have not been used for a long time
should be exercised with caution since they could have grown unfit for the contemporary
context. Death sentences, in particular, should be looked upon with utmost care; severity
should be cast on the crime rather than the criminal.

Part II
In relation to the pleaders and advocates, he should behave as a patient and grave listener to
their arguments, expositions and cross examination. Bacon suggests four steps that a judge
must follow before arriving at a decision: to direct the evidence, moderate the length and
impertinence of speech, recapitulate the essential points in the case, and then pass the
judgement or sentence. When the judge goes beyond the prescribed steps it diminishes his
glory. The judge's tendency to over speak and his shortness of memory tend to sabotage the
proceedings of the case. The judge should be stern to the presumptuous and gracious to the
modest pleader. He should also strictly avoid indulging in favouritism and bribery. The
capability and skill of a good lawyer is to be generously acknowledged by the judge, and
particularly the lawyer of the losing party, who might underestimate the worth of his counsel
and regard his loss as due to his incompetence. A bold and cunning lawyer is to be politely
rebuked by him. He should allow freedom to both the sides to present their points based on fair
and equal opportunity.

In the fourth paragraph, Bacon says that the whole premise of the court should be free from
scandal and corruption, and refers to the sanctity and integrity of the clerks and ministers of
the court. A comparison is given: as grapes cannot grow amid thorns and thistles, similarly
justice cannot be derived from corrupted and shrewd clerks and ministers as they attempt to
extract unlawful fees and brides. According to Bacon, the court might be subjected to four bad
instruments that often turned out to be detrimental to the process of justice: at first those people
are talked about who pervert the course of justice by engaging the court in convoluted pathways
whereby delay is caused. The court time is wasted and the country finds out in pain when it
does not receive proper justice. The second category of people engages the court in unnecessary
quarrels of jurisdiction thus becoming 'parasite curiae' (enemy of the court) rather than 'amici
curiae' (friend of the court). Then comes those who are already corrupted and they always
employ tricks and shifts to ensnare the gullible. Lastly, the fourth group of people are always
in a bid to collect bribes and unlawful fees subjecting the people to insufferable misery. The
clerks and ministers should seek reference from the ancient, experienced and skilled clerks of
court who are so capable in their work that they often point out the mistakes of even the judge.

In the last paragraph of the essay Francis Bacon describes the supposed ideal relation between
the Judge and the Crown. The supreme law is for the welfare of the people. Therefore, the kings
and judges must always consult with each other with the common aim of building a happy
kingdom. It is a happy thing in a state,” he wrote, “when kings and states do often consult with
judges; and again, when judges do often consult with the king and state: the one, when there is
matter of law intervenient in business of state; the other, when there is some consideration of
state intervenient in matter of law.” They should move together so that no man can capitalise
on the conflict between just laws and true policy. He however declares that the judges should
be “lions, but yet lions under the throne.” Thus Francis Bacon insinuates in this veiled reference
to King Solomon’s throne that judges, despite their rights and powers, should thrive under the
domination of the Royalty, and always take the interest of the Crown in consideration. Their
decisions and judgements are not to be prejudicial to the dignity of power and privileges of the
King. Justice and state policy are to be united as body and spirit. Bacon concludes by asserting
that Judges must not be oblivious of their rights and assume that they do not have any; they
must work towards the wise application of laws without fear or favour.

LATIN PHRASES AND ADAGES USED IN THE ESSAYS1:

1. Jus dicere, and not jus dare: to interpret law, and not to make law, or give law.
2. Fons turbatus, et vena corrupta, est justus cadens in causa sua coram adversario : A
righteous man falling down before the wicked is as a troubled fountain or a corrupt
spring.
3. Qui fortiter emungit, elicit sanguinem: Violent wringing makes the nose bleed.
4. Pluet super cos laqueos: He will rain snares upon them.
5. Judicis officium est, ut res, ita tempora rerum: A judge must have regard to the time as
well as to the matter.
6. Amici curiæ, but parasiti curiæ: not friends but parasites of the court.
7. Salus populi suprema lex: The supreme law of all is the weal of the people.
8. Meum and tuum: mine and thine.
9. Nos scimus quia lex bona est, modo quis ea utatur legitime: We know that the law is
good, if a man use it lawfully.