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The Age of Dryden
> Equity and Common Law: Bacon and Cowell; Coke
Selden and his Legal Works
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The Cambridge History of English and American Literature in 18 Volumes
Volume VIII. The Age of Dryden.
§ 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
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 Cokes life-long rival and personal enemy, Francis Bacon (lord chancellor 161821). But Bacons 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 Cokes reports and my rules and decisions shall come to posterity, there will bewhatsoever is now thoughtquestion 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;
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,
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. Bacons 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
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 kings bench 161316), a host in himself. He produced many legal books; but his fame, as a writer, rests fundamentally upon two, namely, his
In his political zeal he was not always scrupulous as to historical accuracy. To him was largely due the legend of
the acceptance of
The Mirror of Justices
as a serious legal authority, the fiction of the official nature of the early
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
(eleven volumes, 160015), which are models of terse and vigorous expression, a highly authoritative and almost complete statement of contemporary common law is given. In his
(four volumes, 162844), a mass of antique learning is brought to bear upon the explanation and defence of the English legal system.
Cokes 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
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 Seldenbut with him should be remembered Camden, Cotton, Spelman and Dugdale.
. For Bacons view as to the need of a revision and digest of the law of England, see the aphorisms appended to his treatise
De Augmentis Scientiarum.
. The contents of the four volumes of Cokes
are as follows: vol.
and subsequent statutes; vol.
Criminal Law; vol.
Jurisdiction of Courts. As to the style, G. P. Macdonell remarks (
Dict. Nat. Biog.
), He often reaches a perfection of form, exhibiting that freedom from flabbiness and that careful use of terms which is essential to a good legal style.
INDEX OF ALL CHAPTERS
Selden and his Legal Works