Coke could recommend it as useful for this purpose. 2 It seems to me that there are two sets of reasons which may afford a partial explanation. In the first place, he did not intend the student to read the whole commentary at once. He meant him to master Littleton's text, and then to assimilate the commentary by degrees;1 and he no doubt considered that the reading of the text and commentary would be supplemented by the educational system of the Inns of Court, which, though on the decline, was still a living system. In the second place, the grouping of a large number of miscellaneous legal topics round the land law followed the traditional historic order of the common law. Just as in Roman law many topics belonging to the general law of contract are grouped round the stipulatio, because it was the most general form of contract known to Roman law, so in English law, from the days of Bracton downwards, many various topics had been grouped round the land law, because it was the most highly developed branch of the common law.3 We see this characteristic in Littleton's own book; and it is of course much more marked in Coke's commentary, because, between the times when Littleton and Coke wrote, these other branches of the law were being rapidly developed. This rapid development was fast making this grouping of topics obsolete. The law of contract and the law of personal property were becoming independent branches of the law-as important as the land law itself. But it was hardly to be expected that a man like Coke, who was saturated with medieval law, whose outlook both as judge and politician had ever been directed to the past, should appreciate these new developments. That was a point of view which came more naturally to a man like Bacon whose outlook was always towards the future. 4 The Second Institute deals mainly with public law, and with the additions which statutes had made to that common law which had been more or less described in the preceding book. Altogether some thirty-nine statutes are commented on, of which twenty-six belong to the medieval period. Round the commentary on Magna Carta, the Confirmatio Cartarum, the De Tallagio non concedendo, and the Articuli super Cartas, is grouped much learning on those constitutional doctrines which Coke spent his 5 6 1 Co. Litt. Pref.-" Mine advice to the student is, that before he read any part of our commentaries upon any section, that he first read again and again our author himself in that section, and do his best endeavours, first of himself, and then by conference with others (which is the life of study) to understand it, and then to read our Commentary thereupon, and no more at any one time than he is able with delight to bear away." 2 Vol. ii 506-508; vol. iv 263-270; vol. vi c. 8. 5 Second Instit. I seqq. 3 Vol. ii 260. 6 later years in asserting; and round the commentary on Circumspecte Agatis,1 De Asportatis Religiosorum,2 and Articuli Cleri,3 is to be found the learning as to the relations of the ecclesiastical to the common law. Throughout the commentaries on these statutes we hear echoes of the great political controversies of the day-the questions of impositions, of monopolies," of prohibitions, of the right to release on bail, of the right of the king to stay proceedings in an action.8 His comments on the other mediæval statutes contain disquisitions on many various branches of medieval law, which either had not been noticed, or which seemed to demand fuller treatment than they had received in the comment on Littleton. Thus we get comments on the Statutes of Merton, Marlborough,1o the two statutes of Westminster,11 the modus levandi fines and the de finibus levatis,12 on certain statutes from Richard II. and Henry VII.'s reigns relating to the export of the precious metals,18 and on a statute of Henry V.'s reign relating to Additions, i.e. descriptions of defendants in legal proceedings.1 Certain sixteenth century statutes, which introduced new branches of the law, are noted. They comprise the statute of enrolments,15 certain statutes of Henry VIII.'s reign relating to procedure, to the repair of bridges, and to printers; 16 and certain statutes of Elizabeth's and James I.'s reigns relating to hospitals, houses of correction, rogues, and the building of cottages.17 As usual the commentaries are both discursive and learned. In the case of the more modern statutes they are historically very valuable, because they often give us the contemporary view of the reasons for passing them, and first hand information of the results of their working. 18 14 The first two parts of the Institutes had dealt, as Coke says,19 mainly with common pleas. The Third Institute deals with criminal law. Beginning with high treason, it expounds in a hundred chapters all kinds of offences new and old. It then deals with judgments and execution, and other consequences of a conviction for treason or felony; and ends with some account of pardons and restitutions. In this part of his subject Coke had had predecessors. Staunford had written on the pleas of the 20 and the books on the justices of the peace had dealt crown; with the criminal side of their jurisdiction. But Coke's book was more elaborate than any of these; and, as he himself points out, his career as law officer and judge enabled him to give a good deal of new information on the subject of the important developments which had taken place in the law of treason, as well as in other parts of the law during this period. Here, as in the Second Institute, he has a good deal to tell us of the statutes of his own day. Of these the most important were those relating to monopolists, dispensers with penal statutes, and bankrupts.5 7 3 8 The Fourth Institute deals with the jurisdiction of courts; and here again Coke had predecessors in Lambard and Crompton. But here again his work is a great deal more elaborate than that of his predecessors. Much had happened since those books were written. Coke himself and James I. had put forward their claims to settle conflicts of jurisdiction between these courts; and Coke had been driven from the bench. He would not have regarded his work as complete unless he had left on record some considered account of his views as to the proper relations of those many courts which bore rule in the English state. Beginning with the High Court of Parliament, he travels through the whole mass of councils and courts, central and local, which administered justice in the king's name. He includes the courts of the counties Palatine and other franchise jurisdictions great and small, the courts of the city of London and other cities, the ecclesiastical courts, the courts of the kingdoms of Scotland and Ireland, of the Channel Isles, the Isle of Man, and the Isle of Wight; and in dealing with "the conservator of truces" he takes occasion to give such information as he had acquired of cases turning upon the new international law. 10 Throughout the book the supremacy of the common law courts is maintained; and, in dealing with the Admiralty and the Chancery, there is no doubt that it is only maintained by a considerable straining of the older authorities. On the other 1 Vol. iv 115-119. 2" When we consider how many Acts of Parliament (published in print) that have made new treasons and other capital offences, are either repealed by general or express words or expired: how many indictments, attainders of treasons, felonies, and other crimes, which are not warrantable by law at this day: and how few book cases there have been published of treasons and those very slenderly reported: we in respect of the places which we have holden, and of our own observation, and by often conferences with the sages of the law in former times concerning criminal causes have thought good to publish this third part of the Institutes," Third Instit. Pref. 3 Third Instit. c. 85; vol. iv 345-3534 Third Instit. c. 86; vol. iv 358-359. Pt. II. c. 4 I. § 6. 5 Third Instit. c. 91; above 135-136, 139; 6 Vol. iv 117-119. 8 Above 440. 10 Fourth Instit. c. xxvi. 7 Ibid 212. 9 Fourth Instit. Pref, hand, he was not prepared to deny, as the Parliamentary lawyers and statesmen then and afterwards denied, the legality of the jurisdiction of the Star Chamber. He defended both its legality and its utility.1 We cannot doubt that he honestly thought that he had given a true description of the sphere of the jurisdiction of the courts which competed with the common law. But, in reality, he simply repeats the views which he had expressed when on the bench—even in the case of the Chancery he seems to revert to his old position. That these views would give offence he did not doubt;3 and almost his last words were a solemn warning to the judges to deliver their opinions justly according to law, careless whether or no they offended great men or favourites.4 5 It is easy to see why Coke did not care to publish the last three parts of the Institutes in his life-time. The First Institute dealt with branches of the law very remote from any of the constitutional controversies of the day. But a large number of the topics treated of in the other three books touched them at many points. When the Second and Third Institutes were finished in 1628 Coke's active career was over; and when the Fourth Institute was finished, Parliament had been dissolved and the country was being governed by the Prerogative. We cannot blame Coke for not wishing to shorten his few remaining years by a close imprisonment in the Tower. He had recorded his opinions. Their publication could well wait till a more favourable season. When they were published in 1641, it was the hour of the victory of the common law and the Parliament. Men did not stop to consider the accuracy or the validity of the arguments upon which Coke based his claim that the common law and Parliament were supreme in the state, they simply accepted them, and made his writings the basis, not only of our modern constitutional law, but also of the whole of that large part of our 1 Vol. i 507-508, 513; Fourth Instit. 62-63. 2 Third Instit. 123-125; cp. Fourth Instit. 82-84; it is alleged that in this case the publisher included old notes and torn papers written before James I.'s decision, Vindication of the Jurisdiction of the Court of Chancery, I Ch. Rep. 2-3. 3 Ibid, Epilogue-"Throughout this treatise we have dealt clearly and plainly concerning some pretended courts which either are no courts warrantable by law or which without warrant have incroached more jurisdiction than they ought Wherein if any of our honourable friends shall take offence our apology shall be, Amicus Plato, Amicus Socrates, sed magis amica Veritas." 4"And you honourable and reverend judges and justices, that do or shall sit in the high tribunals and courts or seats of justice. . . fear not to do right to all, and to deliver your opinions justly according to the laws. And if you shall sincerely execute justice be assured... that though thereby you may offend great men and favourites, yet you shall have the favourable kindness of the Almighty, and be His favourites," ibid. modern English law which is comprised under the general term "1 common law." It is not surprising therefore that, from that time, and almost down to our own days, there have been many lawyers who would hardly admit of the existence of any serious shortcomings in Coke's work. But during the last century there has been a reaction. Coke has been attacked on opposite grounds by two very different schools of lawyers. In the first place, he has been attacked by the historical school on the ground that he has sometimes carelessly, and sometimes it is even said intentionally, misrepresented historical facts. In the second place, he has been attacked by lawyers of the school of Austin and Bentham on the ground that both the matter and the form of his writings are obscure, illogical, and ill-arranged. Let us look at these two classes of criticism and see to what extent they are justified. (a) The exceptions taken by the historians. 4 Time has its revenges. Coke in his lifetime was at pains to advise and correct historians if they ventured into the domain of law; and now the historians have turned upon Coke, and pointed out that his history is often inaccurate, and that his law is not the true medieval law which he represented it to be. It must be admitted that there is a large amount of substantial truth in these criticisms. Coke was always the lawyer, always the advocate, and in the latter part of his life a keen politician. The lawyer, the advocate, and the politician must needs make excursions into the domain of the historian for their own special purposes. But history so produced will generally be, as history, worthless. If we remember that Coke's excursions into the domain of history were all made with a purpose; and that, in addition, he had no conception of history for its own sake, and no power of criticizing the historical sources which he used, we shall not be surprised that, as compared with the work of true historians, like Selden or Bacon, his historical work is almost 1 See the Preface to Prynne's Animadversions. 2 Thus Butler said, Reminiscences i 65, that "he has never met with a person thoroughly conversant in the law of real property who did not think with him-that he is the best lawyer, and will succeed best in his profession, who best understands Coke upon Littleton." That his misrepresentations were intentional I can hardly believe in the face of his known honesty and the high standard which he set before himself, see e.g. 9 Co. Rep. Pref. xivb, xv; but, as we shall see, the zeal with which he took up any cause that he was advocating at the moment, caused him to put such extraordinary constructions on his authorities that it is easy to think that he was intentionally misrepresenting them. 4" To grave and learned writers of Histories, my advice is, that they meddle not with any point or secret of any art or science, especially with the laws of this realm, before they confer with some learned in that Profession,” 3 Co, Rep. Pref. xiii. |