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statesmanship. In fact, his work was the complement of the statesmanship which had adapted the mediæval 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 mediæval 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; 3 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

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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.

• 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; 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.

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

3

In the past the

what it is to-day? This may well be doubted.1 lawyers had helped to make the English Parliament an efficient representative assembly. In the seventeenth century the Parliament handsomely repaid this debt by helping Coke and his fellow lawyers to maintain the medieval conception of the supremacy of the common law, and to apply this conception to the government of a modern state. It was in Coke's writings that this and other medieval conceptions were given their modern form; and therefore it is largely owing to the influence of his writings that these mediaval conceptions have become part of our modern law. If their influence upon some parts of our modern law has not been wholly satisfactory, let us remember that they saved Englishmen from a criminal procedure which allowed the use of torture, and that they preserved for England and the world the constitutional doctrine of the rule of law.

The effects of these achievements, both in the sphere of criminal and of constitutional law, were destined in the succeeding ages to make themselves felt beyond the bounds of England, beyond the bounds even of English-speaking peoples, in all places and at all times wherever and whenever men have had the will and the power to establish constitutional government.

We may surely claim that these large results of this part of Coke's work upon the civilized world of to-day entitles the most English of our English common lawyers to a place among the great jurists of the world.

But of the effect of Coke's work upon our constitutional law, from which these large results have flowed, I must speak more at length in the next chapter.

1 Cp. Maitland, English Law and the Renaissance 30—“ If there had been a Reception... I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and Parliament, but it would hardly have been that struggle for the medieval, the Lancastrian, constitution in which Coke, Selden, and Prynne and other ardent searchers of mouldering records won their right to be known to schoolboys."

2 Vol. ii 430-434; vol. iv 174, 188-189.

3 Above 445, 451-454; vol. vi c. 6.

• Above 195.

5 Both these points can be illustrated from French legal history; Esmein, History of Continental Criminal Procedure (Continental Legal History Series) at pp. 322-323 (Pt. II. Tit. ii ch. 1 § 5) says "everywhere upon the continent, in France and elsewhere, the inquisitorial procedure ... was now established. . . . One European nation however had resisted and escaped the contagion, and was destined later to serve, to a large extent, as a model for legislation of the French Revolution. This was England." In "La règle Princeps legibus solutus est' dans Pancien droit public Francais," Essays in Legal History (1913) at p. 214 he says-" La philosophie du XVIII siècle. . . proclamait, comme une règle essentielle de l'Etat, l'empire absolu et inévitable de la loi. Je ne citerai qu'un passage de Voltaire, qui dans un de ses Dialogues fait ainsi parler un Anglais : Ce que je trouve le plus juste c'est liberté et propriété. . . . Je veux que chacun ait sa prérogative. Je ne connais des lois que celles qui me protègent, et je trouve notre gouvernement le meilleur de la terre parce que chacun y sait ce qu'il a, ce qu'il doit, et ce qu'il peut. Tout est soumis à la loi, à commencer par la royauté et par la religion.' . . . La constitution francaise de 1791 enregistrait la règle nouvelle dans ces termes. . . . Il n'y a point en France d'autorité supérieure a celle de la loi. Le roi ne règne que par elle, et ce n'est qu'au nom de la loi qu'il peut exiger l'obéissance.'"

APPENDIX

I

THE OPINION GIVEN BY THE JUDGES IN 1591 AS TO IMPRISONMENTS BY ORDER OF THE COUNCIL

(1) THE VERSION GIVEN BY THE LANSDOWNE MS. LXVIII. 87 To the right honourable our very good lords, Sir Christopher Hatton, of the honourable order of the Garter knight, Lord Chancellor of England, and Sir William Cicill, of the honourable order of the Garter knight, Lord Burghley, Lord High Treasurer of England.

We, her Majesty's Justices of both Benches and Barons of the Exchequer, do desire your Lordships that by your good means such order may be taken that her Highness' subjects may not be committed or detained in prison by commandment of any nobleman or counsellor against the laws of the realm, to the grievous charges and oppression of her Majesty's said subjects: or else help us to have access to her Majesty to be suitors unto her Highness for the same. For divers have been imprisoned for suing ordinary actions and suits at the Common law until they will leave the same, or against their wills put their matter to order, although sometime it be after judgment and execution. Item, others have been committed and detained in prison upon such commandment against the law, and upon the Queen's writ in that behalf, no cause sufficient hath been certified or returned.

Item, some of the parties so committed and detained in prison, after they have by the Queen's writ been lawfully discharged in court, have been eftsoons re-committed to prison in secret places and not in common and ordinary known prisons, at the Marshalsea, Fleet, King's Bench, Gatehouse, nor the custody of any sheriff, so as upon complaint made for their delivery the Queen's court cannot learn to whom to award her Majesty's writ, without which justice cannot be done.

Item, divers serjeants of London and officers have been many times committed to prison for lawful executing of her Majesty's writs out of the King's Bench, Common Pleas, and other courts, to their great charges and oppression, whereby they are put in such fear as they dare not execute the Queen's process. Item, divers have been sent for by pursuivants for private causes, some of them dwelling far distant from London, and compelled to pay to the pursuivants great sums of money against the law, and have been committed to prison till they would release the lawful benefit of their suits, judgments, or executions; for remedy in which behalf we are almost daily called upon to minister justice according to law, whereunto we are bound by our office and oath.

And whereas it pleased your Lordships to will divers of us to set down when a prisoner sent to custody by her Majesty, her council, or some one or two of them, is to be detained in prison and not delivered by her Majesty's courts or Judges :

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