the law to non-lawyers. It is precisely these qualities of exactness and lucidity which are characteristic of his style.

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Moreover, he could arrest attention by a quaint illustration or turn of expression,1 or a fine phrase; and he could tersely sum up a point of law in a maxim. The latter power indeed was sometimes dangerous; as it sometimes led him to regard these maxims, not as the short statement of a principle requiring explanation, but as the statement of a self-evident truth. Though he had undoubted gifts of terse and pointed expression, his style is often discursive, and often verbose—we sometimes seem to see in it the style of the draftsman of pleadings. But it is never obscure. And, when he is fired by his theme, it even rises to eloquence. The passages, for instance, in which he sums up the manner in which the Tudor statesmen had settled the vexed question of the copyholder,* and in which he is expounding the excellencies of the common law and its position in the state, are two good illustrations of Coke's style at its best.

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And his reading was not confined solely to law books. On points of mediæval history he can cite Matthew of Paris, and other chroniclers; and of the historians of his own day he had read both Camden and Lambard. When dealing with a matter which involved some knowledge of military matters he cites Livy, Polybius, and Vegetius. He can contrast principles of the civil law with those of the common law.1 10 He enlivens his text by

9

1 Good Pleading is "the heartstring of the common law," Co. Litt. Pref.; the lord shall not have an action of debt for a relief, but his executors shall, "because it has now become as a flower fallen from the stock, and they have no other remedy," Co. Litt. 47b; "knowledge of the law is like a deep well out of which each man draweth according to the strength of his understanding," ibid 71a.

2"The gladsome light of Jurisprudence," Co. Litt. Epilogue; the laws of England are," the golden metwand whereby all men's causes are justly and evenly measured," Fourth Instit. 240; of the copyholder he says, "though meanly descended they come of an ancient house," Copyholder § 32.

3 As Hobbes said, Dialogue of the Common Law, Works vi 62—" He endeavours by inserting Latin sentences, both in his text and in the margin, as if they were principles of the law of reason, without any authority of ancient lawyers, or any certainty of reason in themselves, to make men believe that they are the very grounds of the law of England"; in fact, many of the Latin maxims of the common law attained their classical form in Coke's writings, e.g. there is reason to think that the maxim "ad quæstionem facti non respondent judices, ad quæstionem juris non respondent juratores," owes its final shape to Coke, Thayer, Evidence 185, 186; and this is also probably true of the maxim "actio personalis moritur cum persona,' vol. iii 576.

See the passage cited from Coke's Copyholder vol. iii 213 n. 3.

52 Co. Rep. Pref. viii-xii; cp. 3 Co. Rep. Pref. iii.

Co. Litt. 43a; Second Instit. 15.

7 Co. Litt. 168a.

9 Co. Litt. 71a.

10 Ibid 102a, 262a, 352b, 368a; he says, 10 Co. Rep. Pref. xvii, that he has read some little part of the civil and canon laws, and that "with some good assistance and help," but disclaims any very deep knowledge.

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references to Virgil,' Horace, and Chaucer; and he can illustrate a point by a citation from Tacitus, Cicero, or The Vulgate. Nor is there any reason to suppose, as Hobbes unkindly suggested, that these citations and references did not represent his own reading of these authors. It is apparent that he considered himself somewhat of an authority on etymology. But it must be admitted that of these non-professional books and non-professional branches of learning, he had no critical knowledge whatever. He accepted the information which he found with a credulity and in a manner which is as mediæval as his law. He was inclined to accept as true all the legends about Brut; and he was convinced that the ancient Britons talked Greek. He imagined that the Modus Tenendi Parliamentum dated from the Conquest, and was a record of the manner in which Parliament was held under the Anglo-Saxon kings; and he was firmly convinced that the Mirror of Justices gave a true account of Anglo-Saxon institutions and Anglo-Saxon law. 10 He derives the word "money" from "monendo," "because he that hath it is to be warned providently to use it";" while "terra dicitur a terendo quia vomere teritur." 12

If Coke had not made these excursions into the domains of literature and history it would have perhaps been the better for the cause of English legal history. Succeeding lawyers did not separate those parts of his work which rested on a solid basis of statute, record, or Year Book, from those which rested merely upon his uncritical acceptance of historical legends. They thought that his authority upon all questions of legal history was as conclusive as his authority upon questions of mediæval or sixteenth-century law; and so they followed him rather than writers like Selden or Madox-forgetting that authority which is binding on a law court ceases to be binding in matters over which no law court has jurisdiction.

But we must now turn to the writings in which these characteristics and qualities are displayed.

1 Fourth Instit. 289; Co. Litt. 165.

3 Second Instit. 123.

5 Ibid 129; Foster's Case (1615) 11 Co. Rep. 60a. Second Instit. 53, and many other passages.

7 Dialogue of the Common Laws, Works vi 144—" His citing of Aristotle, and of Homer, and of other books, which are commonly read by gownmen, do, in my opinion, but weaken his authority; for any man may do it by a servant."

83 Co. Rep. Pref. viii-x—“ That the laws of the ancient Brittains, their contracts and other instruments, and the records and judicial proceedings of their judges were wrote and sentenced in the Greek tongue, it is plain and evident by proofs luculent and uncontroulable."

99 Co. Rep. Pref. iv; for this tract see vol. ii 424-425.

10 9 Co. Rep. Pref. i-v; cp. vol. ii 328.

11 Co. Litt. 207b.

12 Ibid 42.

(ii) Coke's published writings:

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In the days when all lawyers, who had progressed so far as to become benchers of their Inns, were obliged to take part, as Readers, in the education of the students in those Inns, it usually happened that their readings were their earliest literary work.1 Coke in 1592 read both on the Statute of Uses and the Statute de finibus levatis. He was an attractive lecturer if his account of his reading on the former subject is to be believed.2 Unfortunately it is only the latter reading which has found its way into print. It contains twenty-three lectures. They consist of a short introduction, and an outline of the topics of the reading, together with the authorities on which it was based. It is not nearly as full, nor does it possess the literary merits of the parts of Bacon's more famous reading on the Statute of Uses which have come down to us. Besides this reading we need only mention two other of Coke's shorter works—a little treatise on Bail and Mainprize, and the Complete Copyholder. The former is a little tract in thirteen chapters, setting out clearly and succinctly the main principles of the law-a useful tract, one would suppose, to justices of the peace. The latter is a small book in twenty chapters and sixty-two sections. It embodies the results of the many decided cases which worked out in detail the wise policy of the Tudors with regard to the copyholders. Thus it is the earliest of our modern books on this topic. This policy was one with which Coke thoroughly sympathized. Satisfaction with its results, together with the limitations of space which he imposed upon himself, have combined to give the book more literary form than that possessed by any of his larger works. It is sometimes even epigrammatic, never verbose, and always happy. To be forced to severe compression is the best tonic for very learned men who, like Coke, have a tendency to wander into obscurity in their efforts to exhaust a subject.

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Coke's larger works are his Book of Entries, his Reports, and his Institutes. Of each of these works I must give some description; and, in the first place, I shall speak of the Book of Entries.

1 Vol. ii 506-507.

2 Coll. Top. et Gen. vi 114-115-he tells us that he delivered only five lectures as the presence of the plague made it necessary to leave London; that there were present 160 "socii," and that nine of the Bench and forty of the Bar escorted him as far as Romford on his way home to Huntingfield.

3 It is printed at the end of the ninth Ed. of Co. Litt.

4 Vol. iii 209-213.

5 The Book of Entries, the eleven books of Reports, and the first Institute (the only parts of the Reports and the Institutes published in his life, below 462, 466) make up the thirteen books of which his tombstone records that he was the father"duodecim liberorum, tredecim librorum pater," Coll. Top. et Gen. vi 121.

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We have seen that in this, as in the preceding period, the earliest instruction given to the student was as to the nature of writs and the forms of pleading; and that this knowledge continued to be of the first importance all through his career.1 "Good Pleading," said Coke, "is the touchstone of the true sense of the law." The growing complexity and importance of the subject led Coke to think that a book of precedents would be useful to the profession. In the preface to his book he somewhat exaggerates the scarcity of books on this topic; and he recommends his collection for much the same reasons as Plowden had recommended the precedents contained in his Reports. All the pleadings given were, he tells us, taken from cases which had recently come before the courts; and thus, having been sifted and approved by the judges, they could be safely followed. Many of the pleadings contained in the Reports were included in the book, and others besides; and sometimes short notes and references were added to explain the forms used. The book was published in 1614, so that it embodied Coke's experience both at the bar and on the bench.

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The chief criticism which I should be inclined to make upon it is that, in comparison with its rivals, it is somewhat old-fashioned. Rastell, for instance, included in his book published in 1564 a precedent of a declaration on a bill of exchange; and at the beginning of the seventeenth century these actions were beginning to be brought in the common law courts.8 There are no such precedents in Coke's book. That he was alive to the importance of securing for the common law this new commercial business his conflict with the court of Admiralty shows. But his book on pleading deals almost wholly with the older real actions, and the older forms and applications of the personal actions. It was probably soon superseded by the new books which gave more space to precedents adapted to the new requirements of the pleader.9

By far the most important of Coke's books are his Reports and his Institutes.

The first part of the Reports was published in 1600, and the next two shortly afterwards. The remaining eight parts appeared

2 Book of Entries, Pref.

1 Above 379. 344 Many have written of the former [the theoretic] part, only one of the latter, unless you will account that ancient little treatise called Les novel Tales or Nova Narrationes to be one," ibid; we have seen that there were more books on this topic on the market when Coke wrote, above 383-385.

4 Above 371 n. I.

5 Book of Entries, Pref.

6" Here you shall find precedents adjudged upon Demurrer, wherein lie hidden many matters of law, and excellent points of learning, which being never reported, here is for thy better light (Studious Reader) a short touch given of the reasons and causes whereupon they were adjudged," ibid. 9 Above 385-386,

7 Above 384.

Pt. II. c. 4 I. § 2.

at short intervals between 1603 and 1615.1 The twelfth and thirteenth parts were published after Coke's death in 1655 and 1658.2 They were not prepared by him for the press, and are in fact simply notes of cases and of other transactions in which he had been engaged. They are valuable as historical evidence of certain of the facts of Coke's life, and as to the nature of his political views. But, though they contain decisions which are still cited as leading cases in constitutional law, they have never had the same authority as that possessed by the first eleven parts of the Reports, which he himself published as his considered views upon the cases therein contained.5

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In criticizing Coke's Reports we must remember that, when he wrote, there was no agreement as to the form which a law report should take. Every law reporter had a distinct style of his own. And it is natural that this should be so; for, as we have seen, all the reports of this period were made primarily for the reporter's own use. Though Coke prepared his reports for the press, he made them in the first instance for himself." Therefore when we find that his reports differ in form from any other reports before or since, we can hardly accuse him of taking a liberty which he was not entitled to take.

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To a certain extent Coke was guided by the nature of the cases which he was reporting. Sometimes, for instance, in the

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1 Above 359; cp. Wallace, The Reporters 166-167.

2 Above 359, 369.

3 Above 430-431, 432-433.

4 Prohibitions del Roy (1608) 12 Co. Rep. 63; the Case of Proclamations (1611) ibid 74; cp. also the Case of Commissions of Enquiry (1608) ibid 31.

5 In the preface to Bulstrode's Reports, Bulstrode explains that, when the print of 12 Co. Rep. was brought to him, he expressed the opinion that the reports were Coke's, but said that it contained "so many gross mistakes, misprintings, and imperfections that I told the party that brought it that it was not fit for the public view with so many defects in it ; in the King v. Atkins (1682) 3 Mod. at p. 13 a case reported 12 Co. Rep. 120, 121 is referred to as being "in those reports that go by the name of Lord Coke's"; in M'Pherson v. Daniels (1829) 10 B. and C. at p. 275 Parke J. said "the 12 Rep. is not a book of any great authority being not only posthumous, but apparently nothing more than a collection from papers neither digested nor intended for the press by the writer. . . And Holroyd J. in Lewis v. Walter (4 B. and Ald. 614) gives an opinion unfavourable to its accuracy." The political views expressed in the cases there reported have no doubt helped to depress the authority of these reports; Jenkins, Eight Centuries of Reports, Pref. v, complains of passages in Coke's unpublished writings, "by which he seems to bridle the sovereign and give reins to the people"; but it is probable that opinions of an opposite character, such as those contained in the Case of Non Obstante (pp. 18, 19) and in the notes as to Customs, Subsidies and Impositions (p. 33) helped (though undeservedly) to lower the character of the book in later times, cf. Hargrave's remarks 2 S.T. 381; and Serjeant Hill's remarks cited by Parke J. 10 B. and C. at p. 275; lawyers after the Revolution had no difficulty in rejecting these cases, and regarding them as a reflection upon the reporter, while accepting cases, such as the Case of Proclamations, which contained opinions agreeable to the then established constitutional doctrines.

6 Above 364.

7 Above 364 n. 3.

8" In these reports I have (of purpose) not observed one method, to the end that in some other edition (if God so please) I may follow the form that the learned shall allow of," I Co. Rep. Pref.