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-the facts being that the indictment was not of Wolsey at all, t and that the passage as to subverting the common law was Π merely the common form used in any indictment under the t 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 d 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.

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) 1 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 legitiTmate. We must separate Coke's views on matters which related to the political controversies of the day from matters which did And I think that on matters of law unconnected with these st not. 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. No doubt later cases have sometimes shown that Coke was wrong; 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

The 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.J. 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.

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; 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. 116a 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.

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

able opponents Bacon and Ellesmere could not, though encouraged by the king, find any serious errors in his Reports, except in cases of a political or semi-political character;1 and thirdly, that the able lawyers of his own day, who, because they were his contemporaries or immediate successors, knew the older authorities more intimately than we do, found no considerable faults. Let us remember that Bacon admitted that the Reports "though they may have errors, and some peremptory and extra-judicial resolutions more than are warranted, yet contain infinite good decisions and rulings over of cases"; and that even in the Observations on Coke's Reports it is admitted that, though there were certain things that were bad, and certain things that were mediocre, there were more things that were good. In view of these facts I think that the view that Coke is inaccurate in his statements of law on matters unconnected with the political controversies of the day is not proved.

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Let us now turn to the criticisms made by writers of another school.

(b) The exceptions taken by the analytical jurists.

Though Coke's use of history is often unhistorical, he was, for all that, a lawyer of the historical school. "Out of the old fields

other cases, that such as understand not the law in that behalf, and all others, may better direct themselves, and prevent the danger thereof hereafter"; for this case see above 200, 201; chapter lxxii of the Third Instit. is probably a summary of what he said on this occasion.

1 The five points which the attorney and solicitor-general selected as erroneous were his views as to the assessment of sums for the repair of sea-walls in the Case of the Isle of Ely, 10 Co. Rep. 141; as to the legality of the dispensation in the Case of Monopolies, 11 Co. Rep. 84; as to the power of the common law to control Acts of Parliament in Bonham's Case, 8 Co. Rep. 107; and as to the power of the King's Bench to correct misdemeanours extra-judicial in Bagg's Case, 11 Co. Rep. 93; see Bacon's Works (ed. 1824) vi 399-408 for the objections and Coke's answers; cp. also a paper drawn up by Bacon of "Innovations introduced into laws and government," Spedding, Letters and Life of Bacon vi 90-93. It was in connection with this inquiry that the collection of cases entitled "Lord Chancellor Egerton's Observations on the Lord Coke's Reports was drawn up; as Spedding says, ibid 87, "it does not appear by whom or upon whose authority the title was inserted"; the editor, following Mr. Laughton, among whose papers it was found, attributed it, without much positive evidence in favour of this hypothesis, to Lord Ellesmere. The four heads under which the cases contained in the book are arranged are (1) the rights of the Church, (2) the Prærogative of the King; (3) the power and jurisdiction of Courts and Commissioners; (4) the interest of the subject, ibid 88. Under each head instances from the reports are clearly and concisely stated, and a good many perfectly just criticisms upon the style and matter of some of the cases reported are made; as Sir F. Pollock says, L.Q.R. xxxvi 4, it is “such a memorandum as a secretary or officer of the Court might very well have prepared under Lord Ellesmere's direction, and Lord Ellesmere himself conceivably, though not very probably, have copied from the subordinate's draft-it might even be with amendments or added touches of his own"; for illustrations of these criticisms see above 430 n. 3, 464 n. 6.

2 Proposition touching the compiling and amendment of the Laws of England, Spedding, Letters and Life of Bacon vi 65.

"In the perusal of all his works it may be truly said of them, Sunt quædam mala, sunt quædam mediocria, sunt bona plura."

must grow the new corn," was a favourite proverb of his-out of the old authorities in the law must come the new rules and principles needed to guide the activities of all men in the English state. And he had all the defects of the historical lawyer in an exaggerated form. He is ready with an explanation, and sometimes with a defence, of all the anomalies which disfigured the law. He almost justifies trial by battle;1 and he regrets the decay of the cumbersome apparatus of the real actions. He is ready also with detailed explanations of all the technical rubbish with which the premature hardening of the procedural rules of the common law into a definite system had burdened it;3 and between explanation and justification it never occurred to him. that there could be any distinction. Though he was a master of the principles of the common law, his statement of these principles was often obscured in his writings by the mass of detail with which it was accompanied; distinctions were sometimes drawn where no real differences existed; and fundamental differences were sometimes not sufficiently emphasized.5

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1 Second Institute 247-It (trial by battle in a writ of Right) I was instituted upon this reason, that in respect the tenant had lost his evidences, or that the same were burnt or embezzled, or that his witnesses were dead, the law permitted him to try it by combat. . . hoping that God would give victory to him that right had "; cp. Third Instit. 159-" And this kind of battail, in case of Appeals and writ of Right, is by publick authority and course of law, whereunto all people by an implied consent are parties; and (as some hold) hath his warrant by the word of God, by the single battail between David and Goliah, which was strucken by publick authority.'

28 Co. Rep. Pref. xxvii-xxviii-" The neglect of Assises and real actions hath produced two inconveniences in the Commonwealth, and a third is... like to insue: (1) the multitude of suits in personal actions, wherein the realty of freehold and inheritance is tried, to the intolerable charge and vexation of the subject. (2) Multiplication of suits in one and the same case; wherein often times there are divers verdicts on the one side and divers on the other [see above 323, 336] . . . (3) The discontinuance of real actions will produce in the end two dangerous effects, viz. want of true judgment in the Professors of the Law, and gross ignorance in Clerkes of the right Entries and Proceedings in those cases"; cp. Ferrer's Case (1599 6 Co. Rep. at p. 9a.

See e.g. Beecher's Case (1609) 8 Co. Rep. 58a; Blackamore's Case (1611) ibid 156a-he explains at p. 159a why error in the form of the original writ is not amendable" Original writs are the foundation upon which the whole law depends, and therefore if the form of original writs shall be neglected, Ignorance, the mother of error and barbarousness, will follow . . . in subversion of the antient law of the land, for in this case it is true that forma dat esse; "this might be a good enough explanation of the old strict rules; but it was hardly applicable to the law of Coke's day, when the distinctions between the forms of action were being rapidly undermined by the growth of the offshoots of Trespass; certainly it was no justification for the refusal of the court to allow a reasonable latitude of amendment. This is especially noticeable in the First Institute, above 467.

5 Hobbes remarks, Dialogue of the Common Laws (Works vi at pp. 74, 75), that "Sir Edward Coke does seldom well distinguish, when there are two divers names for one and the same thing; though one contain the other, he makes them always different"; Stephen, H.C.L. ii 206 n. 1, adds that "when one name applies to two things he makes them always the same "; the author of the Observations on Coke's Reports says at p. 20 that "a clear case is clouted and obscured by the

At the same time he has all the good points of the historical lawyer. The analytical lawyer usually bases his analysis mainly upon the ideas current in his own day. However much he may wish to do so, he can never wholly emancipate himself from the intellectual atmosphere in which he lives. He is therefore inclined to reject as useless all that is not in accord with these current ideas. But the historical lawyer preserves the ideas of past ages; and these ideas often come into their own again in a future age. Coke's writings preserved for England the mediæval idea of the supremacy of the law, at a time when political speculation was tending in the direction of the supremacy of a sovereign person or body which was above the law; and the obscurity and indefinite character of some of the mediæval rules of law which he states, preserved for the common law a flexibility, which is the condition precedent for natural development and expansion.

1

As Coke's writings thus possess all the vices and virtues of the historical lawyer in an exaggerated degree, they have naturally attracted the censure of those whose minds are cast in an analytical mould. And in one of Coke's younger contemporaries was to be found a mind which combined great learning with extraordinary powers of logical analysis. We shall see that Thomas Hobbes was the first Englishman to apply his gifts of logical analysis to explain to his fellow-countrymen the comparatively new doctrine of sovereignty, and to show them how the application of this doctrine to the political facts of the day would clear up all the existing political perplexities. This meant that he approached English constitutional law and the political theories which underlay it from a new and a critical standpoint. But as English constitutional law was and is a part of the common law, it was inevitable that he should extend his criticism to the common law generally. It was during the Great Rebellion that Hobbes was elaborating his theories. At that time Coke had come to be regarded as the greatest authority on the common law, so that Coke's views upon the constitutional theory of the English State had come to be the views of most common lawyers, and of many statesmen. But Coke's law and political theories were essentially mediæval, and therefore wholly illogical from the standpoint of the new doctrine of sovereignty. It was natural therefore that Hobbes should select Coke's books as the type and model of that obsolete mediævalism in law and politics which he was making it his chief endeavour to combat.

subtlety of a difference he adjoineth of his own," and he gives as an instance Adams and Lambert's Case (1603) 4 Co. Rep. 104.

1 Vol. iv 192.