Page:Harvard Law Review Volume 32.djvu/402

366 366 HARVARD LAW REVIEW His declaration to a large extent dealt with procedure and prac- tice rather than substantive law; but equity has persisted even more than common law in regarding substantive law as a sort of a by-product of procedure and practice. In a more definite and formal way Bacon made and published ordinances for the better and more regular administration of justice in the Chancery, which were to be duly observed, saving the prerogative of the court.^® How far Bacon could have gone in developing equity by his seven- teenth-century views of the praetor's edict if he had continued to occupy his office for a sufficient length of time, must always be a matter of conjecture. His fall, to which his virtues con- tributed perhaps more than his vices, prevented him from devel- oping his plans. Subsequent chancellors have felt free to make rules of procedure but no one has revived his attempt to pub- lish an edict upon entering into office in which should be set forth the manner in which he proposed to use his jurisdiction. Two remnants of the practice of framing resolutions and deciding cases in advance remain. Occasionally as a matter of conveni- ence, coordinate judges who have differed on matters of procedure of substantive law meet in consultation, and attempt to adopt a common basis of decision, so as to prevent the misfortune of having two similar cases decided in different ways because of the divergent personal views of the judges before whom the questions may happen to arise. Under some constitutions, provisions have been made for requiring advisory opinions of the supreme court upon specific points of law before litigation actually arises.^^ This latter method of declaring the law is so at variance with our common-law ideas that the attitude of the courts toward this addition to their powers is decidedly hostile. In Rome the downfall of the kings left the power of the govern- ment and administration essentially royal in its nature, but di- vided among the consuls and the other officers who were from time to time created as successive fines of intrenchment when- ever the old aristocracy was forced to open any one of the exist- Reformer." 31 American L. Rev. i, and E. M. in Law Times (London), " Francis Bacon: Philosopher, Law Reformer, Lord Chancellor," 40 American L. Rev. 28. " F. Granville Munson, "The Decision of Moot Cases by Courts of Law," 9 Col. L. Rev. 667.
 * » 2 Works of Francis Bacon, 1844 ed., 479 et seq.