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contemptible. If we glance at the various purposes for which Coke was obliged to trespass upon the domain of the historian, we shall be the better able to understand why, in this historical age, Coke's reputation has fallen to perhaps an unduly low ebb.

As a lawyer Coke was obliged to make a large use of history in order to explain his law. The continuity of the common law must make every sound common lawyer something of an historian, even in these days of active legislatures and tyrannous majorities; and much more was this the case in Coke's day, when the law was regarded, not as the will of the strongest, but as a set of just principles to be declared by the lawyers from their books of authority and the records of the courts. At all times, moreover, our system of case law has tended to make lawyers exaggerate the amount of continuity which there is in the development of legal doctrine. Coke drew his precedents from very old sources-the older the source, he thought, the purer the law.1 He naturally represented the law of his own day as the logical outcome of the law laid down in these older sources. The newer decisions had not changed the law-they had merely developed or explained the truth to be found concealed in the oldest authorities. This way of reasoning, which is found not only in Coke but also in the writings of many later generations of lawyers, has tended to mislead historians who are not lawyers. At the same time the present state of our knowledge of legal history has led historians who are lawyers to join in condemning Coke. We know more about the legal doctrines of the twelfth and thirteenth centuries than about the legal doctrines of the fifteenth and sixteenth centuries. We see a doctrine in Bracton or in the earlier Year Books. We see it in a somewhat different form in Coke; and we are apt to conclude that Coke has been perverting his sources.

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Let us take an illustration. Pike has pointed out that when Coke, commenting on Littleton, states that an advowson lies in grant but not in livery, he is introducing a negative statement for which there is no warrant in Littleton. But though Coke has thus given a new turn to Littleton's words, he did not do so without authority. In 14903 Brian and Vavisor agreed that since an advowson passed by grant, it could not pass by livery. Coke was not writing legal history. He was only using legal

12 Co. Rep. Pref. xii, xiii; 4 Co. Rep. Pref. v-vi, cited above 455 n. 2. 2 L.Q.R. v. 36; vol. iii 98-99.

3 Y.B. 5 Hy. VII. Pasch. pl. 5 p. 3, Brian says-" N'est ascum doubte mes a cest jour advowson per grant passe bien . . . donques si ce passe per grant, comment poit cest passer per livery? Ceo ne poit estre: car rent passe per grant, donc ce ne poit passer per livery, car oppositum in opposito: et issint il dit nul question que advowson ne poit passer per livery. Quod Vavisor concessit: et Townsend non negavit,”

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history to explain the law of his own day; and I think it probable that some of his statements, which seem at variance with the older authorities, are based upon more recent authorities which, as a lawyer stating modern law, he was bound to follow.1 A judge who at the present day followed seventeenth century rather than nineteenth century decisions, would find his judgments very frequently reversed. I do not, of course, mean to say that all Coke's historical statements can be justified in this way-many of them are obviously wrong,2 and some of them are confused, How many can be so justified I cannot pretend to say; for that would involve a knowledge of the Year Book cases and sixteenth century reports to which I cannot pretend. But very probably some of his errors may be thus explained; and clearly for errors of this kind he cannot be censured. Nor can he, I think, be censured because his conservative prejudices and his profound acquaintance with the mediaval sources have sometimes laid him open to the opposite criticism, that he lays down as living law rules which were, if not obsolete, tending to become obsolete.* But these pleas cannot be urged in defence of the errors into which he fell, either from his habits of indiscreet advocacy or from his political bias.

A very cursory acquaintance with Coke's writings will show us that he approached both law and history with the mind of a strenuous advocate. All through his life he never ceased to be an advocate of legal doctrines or political causes. Whether he is reporting a case, or arguing for the supremacy of the common law in the state, or upholding the rights and privileges of Parliament, he does it with all his strength; and the result is that he talks and writes himself into a decided view on the subject. I very much doubt whether in all Coke's writings a passage could be found in which he admits that he has left any uncertainty in the law. There are many passages in which he states he has re

1 As we have seen he recommends the student to read the more recent cases first, above 466 n. 2.

2 See e.g. his statement in the Case of Abbot of Strata Mercella (1592) 9 Co. Rep. 32b that the ordeal was taken away by Parliament-as to this see vol. i 311; in Mary Portington's Case (1614) 10 Co. Rep. 38a Serjeant Hill has corrected a deduction drawn from Fitz., Ab. Brief pl. 324 as to the effect on the estate of a tenant in tail of a recovery in value-as to this see vol. iii 118-119.

See e.g. in Peytoe's Case (1612) 9 Co. Rep. 8oa-a very confused account of the writs Quare ejecit infra terminum and ejectio firmæ; for these writs see vol. iii 214.

4 For Hale's criticisms (2 P.C. 109, 110) on Coke's views as to the powers of the justices of the peace to arrest suspected persons, see vol. i 294-295: so too in Semayne's Case (1605) 5 Co. Rep. grb he says that, "although a man kills another in his defence, or kills one per infortunium, without any intent, yet it is felony"; as to this see vol. iii 312-obviously Coke treated the old principle as the rule, and the later cases as establishing exceptions to it, though, when he wrote, the old rule was practically obsolete.

conciled all doubts and all conflicting cases; and no doubt he honestly thought that he had done so. He had taken a view; he had supported it with all his learning; and he had no manner of doubt that it was the only possible view. Now this defect of Coke's mind is the cause of two very grave shortcomings in his writings.

In the first place, the many causes which he advocated in the course of his long life were not always consistent with one another. Thus the dicta in Bonham's Case, on the power of the common law to override Acts of Parliament, are not very consistent with the views which he elsewhere expresses about the supremacy of Parliament.1 Some of his dicta in the Case of Non Obstante, as to an inseparable prerogative belonging to the crown, which no Act of Parliament can take away, are certainly not consistent with his more considered statements that the prerogative is subject to the law. His work therefore is disfigured by inconsistent statements; and it is for this reason that it is difficult, as Maitland has pointed out, to pin him down to any particular theory.3

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In the second place, this mental defect tended to make him very uncritical in the use of his authorities, and even led him to misrepresent their effect. He always seems to be arguing a case; and everything strong or weak that may affect the decision must be urged. To such a man the definite statements made in the Mirror of Justices strongly appealed. They confirmed all his preconceived ideas of the antiquity of the common law. They told him that, behind the meagre statements of the Anglo-Saxon codes and early Norman custumals (such as the Leges Wilhelmi), there existed both the Parliament and the common law with which he was familiar. They proved, to his mind, the theory, which he wished to believe, that the common law owed little or nothing to the Conqueror and his successors. 5 And this readiness to accept anything in support of the view which he is defending, makes it easy for him to misrepresent his authorities, by reading, into them the sense which supports the conclusion which he wishes to draw. We have seen that he twice repeats a statement that one of the counts of an indictment of Wolsey contained an accusation that he had attempted to subvert the common law

1 Vol. iv 187 n. 2; cp. vol. ii 442. 2 Vol. iv 205-206; above 430-431, 451. 3 Maitland, Constitutional History 300.

4" In this book in effect appeareth the whole frame of the ancient common laws of this realm. This grave and learned author will show as in this Mirror the great antiquity of the said courts of the common law, and particularly of the High Court of Parliament ever since the time of King Arthur who reigned about the year of our Lord 516,” 9 Co. Rep. Pref. ib, vb, vi.

5" To speak what we think, we would derive from the Conqueror as little as we could," Third Instit. Pref.

-the facts being that the indictment was not of Wolsey at all, and that the passage as to subverting the common law was merely the common form used in any indictment under the statute of Præmunire.1 The errors into which his endeavours to withdraw business from the Admiralty to the courts of common law led him, are well known, since they have been exposed by Prynne in the seventeenth century, and by Mr. Marsden in our own day. Obviously this last illustration of Coke's use of his history to advocate his views is closely connected with the political uses to which he turned it.

We have seen that Coke's advocacy of the claims of the common law to be supreme in the state led him in his later years to become a leader of the Parliamentary opposition to the Stuart kings. We have seen that, though this change of front was the logical consequence of his advocacy of the claims of the common law, it involved a reconsideration of some of his earlier opinions on such matters of public law as the right of the crown to levy impositions and exact loans, and to commit to prison without cause shown. In earlier days these recantations tended to make men believe in the infallibility of Coke. When men thought that the constitutional principles established in the seventeenth century were not merely beneficial to the state, but also incontestably sound law, the views of Coke on these matters in his published writings seemed to prove his legal infallibility on all matters. But in our own days they have had the opposite effect. We see now that the public law of the seventeenth century was very obscure; and that, though the victory of constitutional principles was undoubtedly beneficial to the state, the legal principles upon which the leaders of the constitutional opposition relied were often very dubious. Hence we see in these recantations of Coke evidence of his political bias; and we are apt to doubt whether, in other branches of the law, he is so infallible as our forefathers thought

1 Vol. iv 253, 257-258.

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2 Vol. i 553-554, 558; Prynne, Animadversions on Coke's Fourth Instit.; Marsden, Select Pleas of the Admiralty (S.S.); cp. also the remarks on his bias against the ecclesiastical courts in Jefferson v. the Bishop of Durham (1797) I Bos. and Pull. at pp. 109-110, a bias which led him astray in certain of the rules which he laid down in Liford's Case (1615) 11 Co. Rep. at f. 49b.

3 Above 427-428.

4 Thus the fact that vol. 12 of the Reports contained cases which reflected his earlier opinions (e.g. the Case of Non Obstante, 12 Co. Rep. 18, and the Case of Customs, ibid 33b) was put forward as an argument against the authority of this book; Hargrave, 2 S.T. 381, uses this argument with reference to the latter case, and Serjeant Hill with reference to the former; see above 462 n. 5. It is apparently forgotten that such cases as the Case of Prohibitions and the Case of Proclamations were also contained in it. It is obvious that parts 12 and 13 of the Reports have not the authority of the eleven parts, because Coke never revised them for the press; but it is clear that the Revolution settlement has had a good deal of influence upon the question which of the cases in these books should be regarded as authoritative.

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him. I do not think that either line of argument is quite legitiWe must separate Coke's views on matters which related to the political controversies of the day from matters which did not. And I think that on matters of law unconnected with these controversies a general charge of inaccuracy is not proved. No doubt dicta can be found which disparage his accuracy; but of the soundness of some of these dicta Mr. Wallace has, it seems to me, successfully disposed.1 No doubt later cases have sometimes shown that Coke was wrong; 2 but they are very small in number compared with the cases in which his ruling has been accepted. No really certain conclusion could be arrived at, unless someone were to devote a lifetime to comparing the multitudinous references in his works to the Year Books and records, with the conclusions which he draws from them. But, in default of an inquiry on such a scale, I think that in fairness to Coke it should be remembered, firstly, that his skill as a reporter and the benefits which his Reports had conferred on the law were publicly recognized by the court of Star Chamber in 1613 in the decree made in the Case of Priest and Wright; secondly, that his very

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1The Reporters 173-193; the passages criticizing Coke there dealt with are to be found in I And. 71; Hob. 300; 2 Sid. 99; 1 Salk. 53, and Willes 569; W. Black 1234; it seems to me that Mr. Wallace's defence of Coke in these cases is made out; note especially the charge that in Gage's Case, 5 Rep. 45b, he has reported that the court decided exactly the reverse of what it did really decide; Mr. Wallace shows, op. cit. 191-192, from Moore 571, that the decision was as reported by Coke, but that it was reversed on appeal; that Willes C.). considered that the reversal was to be supported rather on precedents than by reference to any sound principle; and that he admitted that "if this point were to come as a new question before me, I should be of the same opinion with Lord Coke"; in the Observations on Coke's Reports 18-19, he is accused of reporting Legat's Case (1613) 10 Co. Rep. 109, and the Case of Magdalen College (1616) 11 Co. Rep. 66, while writs of error were still depending.

2 The following are a few instances: in Foster v. Jackson (1616) Hob. 52, and Williams v. Cuttryes (1601) ibid 62, a resolution in Blumfield's Case (1597) 6 Co. Rep. 86b, to the effect that if the party taken in execution for debt dies the debt is not released, is shown to be wrong; in Fowle v. Doble (1674) 1 Mod. 182 Vaughan C.J. questions the ruling in Sym's Case (1609) 8 Co. Rep. 51, as to vouching to warranty, and denies that the Y.BB. there cited bear out the resolutions reported; in Groenvelt v. Burnell (1700) 1 Ld. Raym. at p. 468, Holt C.J. questions an opinion expressed in Bonham's Case (1610) 8 Co. Rep. 121a; in Reg. v. Best (1705) 2 Ld. Raym. 1169, a ruling in Long's Case (1605) 5 Co. Rep. 122b, as to insufficiency of the wording of an indictment is questioned; in Jones v. Earl of Stafford (1730) 3 P. Wms. at p. 88, a dictum in Prince's Case (1610) 5 Co. Rep. 29b is said to be erroneous; Tyte v. Globe (1797) 7 T.R. 267, followed some earlier cases and overruled a ruling in Pilfold's Case (1613) 10 Co. Rep. 116а that if a statute, since the statute of Gloucester, gives damages in a new case, costs cannot be recovered; Serjeant Hill questioned a ruling founded on F.N.B. 163 in Specot's Case (1590) 5 Co. Rep. 59a; Foster, Crown Law 330-336, questions the reasons given in Powlter's Case (1611) II Co. Rep. at p. 35a for Coke's views as to the effects of 25 Henry VIII. c. 3 on benefit of clergy.

3 Spedding, Letters and Life of Bacon iv 416-" Lastly, this honourable court much approving that which the right honourable Sir Edward Coke, knight, Lord Chief Justice of England, did now deliver touching the law in this case of Duels, hath enjoined his lordship to report the same in print, as he hath formerly done divers

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