examine and consider the successive changes which have taken place in past laws. And surely it is a reverent thing to intermingle antiquity with things present.

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What Bacon meant by a book "de antiquitatibus juris "he tells us in the De Augmentis. "By antiquities of laws, I understand, those writings on laws and judgments, whether published or unpublished, which preceded the body of the law."2 The book was to be compiled from the records. The statements contained in it were to be regarded as "reverend precedents,' but not as "binding authorities." The other books "conducing to the study and science of the law" were to be three in number. Firstly, a book of Institutes. This was to be "a key and general preparation to the reading of the course." It was to be clear in method, and of "a universal comprehension. like a model towards a great building." It should be confined to private law. Secondly, a treatise “de regulis juris,” designed to explain accurately the leading principles of the law-those "general dictates of reason, which run through the different matters of law, and act as its ballast." Thirdly, a book of terms of the law. This was to be a dictionary both of ancient and modern words, arranged, not according to the order of the alphabet, but on the principle of putting together words relating to the same thing, that one might explain the other.


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1 Aph. 63-" Consultum fuerit in Novo Digesto Legum, vetera volumina non prorsus deleri et in oblivionem cedere, sed in bibliothecis saltem manere; licet usus eorum vulgaris et promiscuus prohibeatur. Etenim in causis gravioribus, non abs re fuerit, legum præteritarum mutationes et series consulere et inspicere; ac certe solenne est antiquitatem præsentibus aspergere; the translations in the text here and elsewhere are Spedding's.

2 Aph. 86-" Pro antiquitatibus autem legum habeantur scripta circa leges et judicia; sive illa fuerint edita, sive non, quæ ipsum corpus legum tempora præces


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"All ancient records in your tower or elsewhere, containing acts of Parliament, letters patents, commissions, and judgments, and the like, are to be searched, perused and weighed. And out of these are to be selected those that are of most worth and weight; and in order of time, not of titles . . . to be set down and registered; rarely in hæc verba; but summed with judgment, not omitting any material part," Spedding, op. cit. vi 68.

4"For the Institutions I know well there be books of introductions (wherewith students begin) of good worth, especially Littleton and Fitzherbert; Natura Brevium; but they are no ways of the nature of an Institutions; the office whereof is to be a key and general preparation to the reading of the course," ibid 70.

5 De Augmentis, Bk. viii c. 3 Aph. 80-"Jus publicum in institutionibus ne attingito; verum illud ex fontibus ipsis hauriatur."

The maxims were to be "made useful by good differences, amplifications, and limitations, warranted by good authorities; and this not by raising up of quotations and references, but by discourse and deducement in a just tractate," Spedding, op. cit. vi 70. Bacon's book on Maxims of the Law, Works (Ed. Spedding) vii 325-387, shows how he would have done the work; he said that it was a new departure; as we have seen, above 398-399, it was very soon imitated by other text-book writers.

7 De Augmentis Bk. viii c. 3 Aph. 82-"Sunt dictamina generalia rationis, quæ per materias legis diversas percurrunt, et sunt tanquam Saburra Juris."

Spedding, op. cit. vi 70-" Not only the exposition of terms of the law, but of the words of all ancient records and precedents;" De Augmentis Bk. viii c.


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Bacon's little book on the Maxims of the Law shows that if he had had the leisure to accomplish this scheme of reform, he, and he alone, was the man for the task. Many another lawyer could have stated legal propositions accurately. He alone had the philosophical capacity, the historical knowledge, and the literary taste needed to select the subject matter and to shape the form of the books in which English law was to be restated. And, if his scheme had been accomplished, there is no doubt that he was right in thinking that there would be many who would question whether, as a lawyer, he was not Coke's superior.1 Hobbes, and many another thinker whose minds were cast in an analytical mould-many a lawyer who had learned from Bacon's books and from the reformed Corpus of the common law-would have had no doubt on this matter. But this was not to be. Political reasons rendered Bacon's scheme impossible of realization at the time when it was propounded; and, at a later period, the merits of Coke's writings rendered the necessity for such a restatement less pressing.

Coke's writings have, it seems to me, five very considerable merits.


(1) They cover the whole field of English law, and restate it from the point of view of the sixteenth century. It was a century in which there had been enormous changes in men's religious and political ideas, and an enormous mass of legislation directed to settling the nation on the basis of these new ideas. A great deal of restatement was therefore needed to bring the medieval basis on which the law rested into harmony with the new situation. Indeed, in any age in which changes of this sort have taken place, the law will need to be thus reconsidered and restated. We in the last century have seen much of our old case law thus treated; and it is not one of the least of the advantages of our system of case law that it can thus be adapted to a new environment. What a succession of eminent lawyers have done for the common law in the last century Coke accomplished for the common law in his own day. "Coke's books," the late Professor Maitland once wrote in a letter to me, “are the great dividing line, and we are hardly out of the Middle Age till he has dogmatized its results."


81-"Tractatum autem istum per literas alphabeti ne digerito. Id indici alicui relinquito: sed collocentur simul verba, quæ circa eandem rem versantur; ut alterum alteri sit juvamento ad intelligendum."

'Spedding, Letters and Life of Bacon vi 70—“ And I do assure your Majesty, I am in good hope, 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 was the greater lawyer." 2 Vol. iv II seqq. 3 Ibid c. 2. So Butler said, Reminiscences i 118-" The most advantageous and perhaps the most proper point of view in which the merit and ability of Sir Edward Coke's writings can be placed, is by considering him the centre of modern and ancient law."

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(2) They deduce from the scattered and often inconsistent dicta in the Year Books positive rules of law. All through his writings Coke is reconciling Year Books. We could with considerable justice apply to his work the title applied to Gratian's work--"Concordia discordantium canonum.' And he did his work so skilfully that later lawyers were, for ordinary purposes, content to accept his reading of these older authorities. The decline in the practical utility of the Year Books and the abridgments of the Year Books, dates from the publication of Coke's Reports and Institutes.1

(3) His writings not only brought the Year Books into line with the modern reports, they brought the mediæval literature of the common law into line with the modern literature. The great mediæval books-Glanvil, Bracton, Britton, and Fletawere made to explain and illustrate the law expounded by Perkins, Fitzherbert, Staunford, and Lambard.

(4) By the information which they gave of the doings of other courts-notably the court of Star Chamber, the court of Chancery, the court of Admiralty, and the court of Wards-they tended to familiarize the common lawyers with the new ideas, emanating from those courts, which were giving rise to new legal developments. As I have already pointed out, they made it easier for the common law to fill the great position which it acquired as a result of the constitutional conflicts of the seventeenth century.

(5) As a result his writings ensured the continuity of the development of the common law amidst all the vast changes of this century of Renaissance, Reformation, and Reception. This signal merit of Coke's writings was fully recognized in his own day. Had it not been for Sir Edward Coke's Reports," wrote Bacon," the law by this time had almost been like a ship without ballast; for that the cases of modern experience are fled from those that are adjudged and ruled in former times."

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Coke's Influence on the Development of English Law
in the Succeeding Centuries

We have seen that Coke's mental attitude and political outlook were those of a statesman of the Tudor period. Naturally the results of his work have all the characteristics of the Tudor

1" Coke's Institutes have had a greater influence on the law of England than any work written between the days of Bracton and those of Blackstone. When the older learning became obsolete, Coke came to be regarded more and more as a second father of the law behind whose works it was not necessary to go," Stephen, H.C.L. ii 205; 66 were it not for his writings we should still have to search for it (the ancient law) in the voluminous and chaotic compilation of cases contained in the Year Books; or in the dry though valuable abridgments of Statham, Fitzherbert, Brook, and Rolle," Butler, Reminiscences i 118-119.

2 Spedding, Letters and Life of Bacon vi 65.

statesmanship. In fact, his work was the complement of the statesmanship which had adapted the medieval institutions of the English state to modern needs, without any appreciable sacrifice of the medieval ideas contained in them. His writings had so restated the medieval common law that it was made fit to bear rule in the modern English state; and both in his writings and throughout his active career he had maintained that this common law ought to be the supreme law in and over the state. The Great Rebellion proved that the theory of the state based on the sovereignty of the king, which the earlier Stuarts wished' to substitute for the balanced Tudor polity, was impossible in England; and therefore caused the views expressed in the writings of the man who represented the ideals of the Tudor polity to prevail. It followed that, just as the Tudor statesmanship fixed the form and determined the manner of the development of the modern English state, so Coke's work fixed the form and determined the manner of the development of our modern English law. The effect of his work, therefore, both for evil and for good has been both vast and permanent.


It can hardly be denied that the victory of Coke's views has had unfortunate effects both upon the form and upon certain parts of the substance of English law. It has had unfortunate effects upon the form of English law, because the very conservative character of his writings has led to the retention in that law of rules and doctrines which were already almost obsolete in his day. All the medieval books as well as all the modern reports could and can be cited as authorities. The statute book badly needed revision in Elizabeth's reign; but no revision was undertaken till the nineteenth century. The result was that the bulk and complexity of the law were enormously increased; and, till the reforms of the last century, the line between obsolete and living law was very hard to draw. Even at the present day it is sometimes not very distinct. The victory of Coke's views has also had unfortunate effects upon some parts of the substantive rules of English law. The jurisdiction over commercial and many maritime causes was, as we have seen, transferred from the court of Admiralty to the courts of common law and the court of Chancery. Since the law administered by the Admiralty was

1 Vol. iv. 209.

2 Vol. vi. c. 6.

3 As Bacon said, Spedding, Letters and Life of Bacon vi 65-" There is such an accumulation of statutes concerning one matter, and they so cross and intricate, as the certainty of law is lost in the heap; as your Majesty had experience last day, upon the point whether the incendiary of Newmarket should have the benefit of his clergy; no better illustration than Benefit of Clergy (vol. iii 294-302) could be given of the evil effects of the retention of obsolete rules which obscured the law.

4 Vol. i 556-558, 570-573; above 153-154.

based to a large extent upon the civil law, it was in closer touch with the contemporary commercial law of continental states, and therefore better fitted than the English common law to do justice in such cases.1 The result was that the growth of these branches of law in this country has been comparatively slow. Till the codifying statutes of the nineteenth century, English law could show no measure dealing with these topics comparable with the French "Ordonnances" of two centuries earlier; 2 and, till the reforms of the same century, our law of bankruptcy was a disgrace to a civilized community.3

On the other hand, although the progress was slow, the common law, assisted by the legislature, has shown a capacity for expansion, which has enabled it to fill the position which Coke's career and writings, and the issue of the constitutional controversies of the seventeenth century, won for it. And, in consequence, English law has become a very much more uniform system than it would otherwise have been. If English law had been restated in the seventeenth century on the lines advocated by Bacon, we should probably by this time have had a very much more variegated system. The Admiralty, the Star Chamber, and the ecclesiastical courts would all have put forward their claims; and these rivals of the common law would have obtained a permanently larger share of jurisdiction. I have already pointed out that the result of the successful assertion by the court of Chancery of its claim to a jurisdiction independent of and in some respects superior to that of the common law courts, has split our English system into two halves. It is therefore very probable that, if all the other rivals of the common law had been equally successful, the English legal system would have been split into many fragments. Coke's writings were largely instrumental in saving English law from this fate; for, if he had not restated and adapted its principles to modern needs, even the victory of the Parliament could hardly have enabled it to gain so decisive a victory over its rivals. That it would have disappeared I do not assert: but I think that it might have sunk to the position of one among many equals; and if this had happened, it would have ceased to be the supreme law of king and people.

And in this question of the future position of the common law more was at stake than the rivalries of competing courts, or the form of English law. If the common law had lost its supremacy would Parliament have gained the victory? And if it had gained the victory without the help of a common law which claimed to be the supreme law in the state, would our constitutional law be

1 Vol. i 555; above 138, 152-153.

3 Vol. i 471-473.

2 Vol. vi c. 6.

* Vol. iv 279, 287-288; above 236-238.

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