taking down hills: so when there appeareth on either side, a high hand, violent prosecution, cunning advantages, combination, power, great counsel, then is the virtue of a judge seen to make inequality equal; that he may plant his judgment as upon even ground."

By an imperial ordinance addressed by the Emperors Valentinian, Valens, and Gratian, A.D. 370, to Olybrius, the prefect of Rome, care was taken to prevent an undue preponderance of counsel on either side at the trial of a cause. It was declared to be the duty of the presiding judge to see that a fair distribution of the leading advocates was made, so that they might not all be engaged for the same client. And if it appeared that a party had retained so many counsel on his side, that his adversary was unable to obtain proper legal assistance, this was to be taken as evidence that his cause was unjust, and that he was to be reprimanded and punished by the judge.

p. 550, 1. 7. “where the wine press is hard wrought, it yields a harsh wine, that tastes of the grape stone."

But Lawes are likened to the Grape, that being too much pressed yields an hard and unwholesome Wine. - Resuscitatio, p. 176, ed.

1657.

The following is one of Bacon's most felicitous illustrations:

Certainly as we find it in wines, that those which flow freely from the first treading of the grape are sweeter than those which are squeezed out by the wine-press, because the latter taste somewhat of the stone and the rind; so are those doctrines most wholesome and sweet which ooze out of the Scriptures when gently crushed, and are not forced into controversies and common places. — Adv. of Learning. Works, III. 488, note.

p. 550, 1. 11. - In the eighth book of the "De Augmentis," ch. III. Works, V. 91, is this Aphorism:

It is harsh to torture laws, in order that laws may torture men. We would not therefore that penal, much less capital laws be extended to new offences. If however the offence be old and taken

1 In Searle v. Williams, Hob. 293, it is laid down that "felonies and capital crimes shall never be made by doubtful and ambiguous words." And in Courteen's Case, Hob. 270,"it was resolved clearly that no statute could be extended to life by doubtful and ambiguous words." - Russell on Crimes, I. 919, note. ed. London, 1865.

cognizance of by the laws, but the prosecution thereof fall upon a new case, unprovided for by the laws, we ought by all means to depart from the decrees of law rather than leave offences unpunished.

Compare the opinion of Lord Denman C. J.:

It is to our mind a far less mischief to leave a point undecided and an alleged offender unconvicted, than to break in upon the established course of practice without strong reason. - Regina v. Turk, 10 Q. B. 544.

The principle adopted by Lord Tenterden, said Lord Abinger, C.B., that a penal law ought to be construed strictly, is not only a sound one, but the only one consistent with our free institutions. The interpretation of statutes has always in modern times been highly favorable to the personal liberty of the subject, and I hope will always remain so. —Proctor v. Manwaring, 3 B. & Ald. 146. Per Lord Abinger C.B. in Henderson v. Sherborne, 2 M. & W. 239. Parsons C. J. 4 Mass. 473. Shaw C. J. 6 Cush. 883. Parker C. J. 17 Mass. 362.

The rule that penal laws are to be construed strictly, observed Chief Justice Marshall, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment. - United States v. Wiltberger, 5 Wheaton, 95.

p. 550, 1. 24. "It is no grace to a judge first to find that which he might have heard in due time from the bar." Bacon in his Speech to Justice Hutton, quoted above, admonishes him,

That you affect not the opinion of Pregnancy and Expedition, by an impatient and Catching Hearing of the Counsellours at the Barre. Resuscitatio, p. 93.

p. 552, 1. 25. “ Judges ought, above all, to remember the conclusion of the Roman Twelve Tables, etc." In the case of Egerton v. Earl Brownlow, 4 House of Lords Cases, 152, which is the leading case in regard to the distinction between conditions precedent and conditions subsequent. Pollock C. B. remarked as follows: :

In a perfectly new case (a case altogether primæ impressionis) I think the Judges are bound to hold fast to the principles of the com

mon law, to remember the maxim salus reipublicæ suprema lex, and if the condition be really in principle against the public good, to pronounce it in their judgment void.

p. 552, 1. 26. "the Roman Twelve Tables." This is not from the Laws of the XII Tables, but among those which Cicero set down in his book "De Legibus," III. 3. § 8, for the government of his imaginary Republic. It is remarkable that Selden seems to have made the same mistake. See "Table Talk,” art. People, p. 112, ed. 1856, and Mr. Singer's note.

p. 553, l. 13. "Let judges also remember," etc.

It is proper in you, by all means, with your Wisdome and Fortitude to maintain the Laws of the Realm: Wherein neverthelesse, I would not have you Headstrong, but Heart-strong; And to weigh and remember with yourself, that the 12 Judges of the Realmn are as the 12 Lions under Salomon's Throne; They must shew their Stoutnesse in Elevating and Bearing up the Throne. - Bacon's Speech to Justice Hutton, Resuscitatio, p. 93, ed. 1657.

ESSAY LVII.

p. 558, l. 13. - In his Essay on Bacon, Lord Macaulay thus criticises Seneca's books "On Anger:"

"We shall next be told," exclaims Seneca, "that the first shoemaker was a philosopher." For our own part, if we are forced to make our choice between the first shoemaker, and the author of the three books On Anger, we pronounce for the shoemaker. It may be worse to be angry than to be wet. But shoes have kept millions from being wet; and we doubt whether Seneca ever kept any body from being angry.

p. 558, 1. 19. Comp. J. Taylor's "Holy Living," ch. IV. § 8, p. 331, ed. London, 1857.

ESSAY LVIII.

p. 564, 1. 13. "As for conflagrations and great droughts, they do not merely dispeople and destroy." Merely (from the Latin merus and mere) means purely, only. It separates that which it designates or qualifies from every thing else. But in so doing the chief or most emphatic reference may be made either to that which is included, or to that which is excluded. In modern

English, it is always to the latter. In Shakespeare's day, the other reference was the more common; that, namely, to what was included.

Our Wine is here mingled with Water and with Myrrh, there it is meer and unmixed.-J. TAYLOR. The Holy Communicant, ch. I. § 2, p. 27, ed. Pickering.

66

Some of the modern editors of the Essays (among them Whately) from ignorance of the old meaning of "merely," have obscured the passage above quoted by changing "and destroy," which is the reading of the edition of 1625, p. 330, into "but destroy;" others leave out the "not" before merely; either change being subversive of the meaning of the passage, and inconsistent with the context. The reading of the edition of 1625 is confirmed by the Latin translation done under Bacon's own superintendence: Illæ populum penitus non absorbent aut destruant. The meaning, as the train of the reasoning clearly requires, is that conflagrations and great droughts, do not" altogether "dispeople and destroy." So in the Third Essay, "Of Unity in Religion," (ante, p. 22,) when the author wrote that extremes would be avoided "if the points fundamental and of substance in religion were truly discerned and distinguished from points not merely of faith, but of opinion, order, or good intention," the meaning is, from points not altogether of faith, not, were distinguished not only from points of faith, as a modern reader would be apt to understand it.CRAIK. English of Shakespeare, p. 87 et seq. ed. London, 1864.

p. 569, 1. 25. “reduced." That which is "reduced" now is brought back to narrower limits, or lower terms, or more subject conditions, than those under which it subsisted before. But nothing of this lies of necessity in the word, nor yet in the earlier uses of it. According to these, that was "reduced" which was brought back to its former estate,— an estate that might be, and in the following examples is, an ampler, larger, or more prosperous one than that which it superseded. - TRENCH. Glossary. Thus in the "History of King Henry VII.,” Works, VI. 63::

There remained only Brittaine to be reunited, and so the monarchy of France to be reduced to the ancient terms and bounds.

taking down hills: so when there appeareth on either side, a high hand, violent prosecution, cunning advantages, combination, power, great counsel, then is the virtue of a judge seen to make inequality equal; that he may plant his judgment as upon even ground."

By an imperial ordinance addressed by the Emperors Valentinian, Valens, and Gratian, A.D. 370, to Olybrius, the prefect of Rome, care was taken to prevent an undue preponderance of counsel on either side at the trial of a cause. It was declared to be the duty of the presiding judge to see that a fair distribution of the leading advocates was made, so that they might not all be engaged for the same client. And if it appeared that a party had retained so many counsel on his side, that his adversary was unable to obtain proper legal assistance, this was to be taken as evidence that his cause was unjust, and that he was to be reprimanded and punished by the judge.

p. 550, 1. 7. "where the wine press is hard wrought, it yields a harsh wine, that tastes of the grape stone."

But Lawes are likened to the Grape, that being too much pressed yields an hard and unwholesome Wine. Resuscitatio, p. 176, ed. 1657.

The following is one of Bacon's most felicitous illustrations:

Certainly as we find it in wines, that those which flow freely from the first treading of the grape are sweeter than those which are squeezed out by the wine-press, because the latter taste somewhat of the stone and the rind; so are those doctrines most wholesome and sweet which ooze out of the Scriptures when gently crushed, and are not forced into controversies and common places. Adv. of Learning. Works, III. 488, note.

p. 550, l. 11. — In the eighth book of the "De Augmentis," ch. III. Works, V. 91, is this Aphorism:

It is harsh to torture laws, in order that laws may torture men. We would not therefore that penal, much less capital laws be extended to new offences. If however the offence be old and taken

1 In Searle v. Williams, Hob. 293, it is laid down that "felonies and capital crimes shall never be made by doubtful and ambiguous words." And in Courteen's Case, Hob. 270,"it was resolved clearly that no statute could be extended to life by doubtful and ambiguous words."- Russell on Crimes, I. 919, note. ed. London, 1865.