The Cambridge History of English and American Literature in 18 Volumes (1907–21).
Volume VIII. The Age of Dryden.
XIII. Legal Literature.
§ 13. Equity and Common Law: Bacon and Cowell; Coke.
With the name of the notable lawyer and politician Sir Edward Coke, we enter the seventeenth century. We may divide that century for the purpose of study into three periods: the first, that of the struggle between king and parliament; the second, that of the commonwealth; the third, that of the restoration and revolution. It will be seen that this classification corresponds to the main political division of the Stewart era. This is as it should be; for never were law and politics more closely bound together than they were at this time. When James I came to the throne, the great unsettled constitutional question was whether the country should be governed by rex or lex. On the side of the royal prerogative ranged themselves generally the equity lawyers and the civilians; over against them were the common lawyers led by Coke. Foremost among equity lawyers was Coke’s life-long rival and personal enemy, Francis Bacon (lord chancellor 1618–21). But Bacon’s fame rests rather on his philosophical achievements than on his legal writings. It is true that it cannot be said of him, as it was said later of lord Brougham, that, if only he had known a little law, he would have been omniscient; for he knew a good deal of law, although he still remained fallible. He was, indeed, eager to attain legal celebrity.
| “I am in good hope,” he wrote, “that when Sir Edward Coke’s reports and my rules and decisions shall come to posterity, there will be—whatsoever is now thought—question who be the greater lawyer.” |
But he dissipated his energies; he did not carry out his great project, that of making a complete digest of the laws of England; 16 and he died leaving legal writings of no greater bulk than admits of their inclusion in a single volume of his collected works. Of these writings, the most important, apart from several arguments in important cases, are the tracts entitled Maxims of the Law, and A Reading on the Statute of Uses. The former contains materials collected for the never completed digest; while the latter discusses, with remarkable subtlety and philosophic insight, a highly technical department of equitable jurisdiction. Bacon’s scanty legal writings kept fairly clear of political controversy. Such, however, was not the case with the works of his contemporary, the civilian John Cowell, regius professor at Cambridge. In 1605, he published his Institutiones Juris Anglicani ad Methodum Institutionum Justiniani Compositae et Digestae, an attempt to codify English law under Roman rubrics; in 1607, he issued his more famous Interpreter, a dictionary of law terms, in which, under such words as “king,” “parliament,” “prerogative,” “subsidy,” he maintained the theory of absolute monarchy. The champions of common law took alarm, caused Cowell to be reprimanded by the council, and his book to be burned by the hangman. Other notable civilians of the period who were to be found on the same political side were Sir Arthur Duck and Richard Zouche, both of them men whose writings on Roman law gave them European note. On the other side was the formidable Sir Edward Coke (chief justice of the king’s bench 1613–16), a host in himself. He produced many legal books; but his fame, as a writer, rests fundamentally upon two, namely, his Reports and his Institutes. In his political zeal he was not always scrupulous as to historical accuracy. To him was largely due the legend of Magna Carta, the acceptance of The Mirror of Justices as a serious legal authority, the fiction of the official nature of the early Year Books, and many imaginary rules of law. “I am afraid,” said chief justice Best, “we should get rid of a good deal of what is considered law in Westminster Hall, if what Lord Coke says without authority is not law.” Nevertheless, he did a great and useful work for English law, and, therefore, for England. In his Reports (eleven volumes, 1600–15), which are models of terse and vigorous expression, a highly authoritative and almost complete statement of contemporary common law is given. In his Institutes (four volumes, 1628–44), a mass of antique learning is brought to bear upon the explanation and defence of the English legal system. 17 Coke’s title to fame is that he adapted the medieval rules of common law to the needs of the modern state, and recast these rules in an intelligible form, collecting and condensing the obscure and chaotic dicta of the Year Books and the abridgments. But, in political cases, his learning is always to be looked upon with suspicion or, at least, with caution. His search for truth was merely monocular. He kept one eye steadily fixed on the interests of his party. There was, however, living at the same time a group of men who were whole-heartedly devoted to research, men who are rightly called the fathers of the scientific study of legal history. Foremost among them was John Selden—but with him should be remembered Camden, Cotton, Spelman and Dugdale. |
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