Cromartie Alan. Sir Matthew Hale, 1609-1676: Law, Religion and Natural Philosophy (Cambridge Studies in Early Modern British History) (ENG)
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Coke: the appeal to reason 19
creation, to have certain desirable features. Coke thus imputed reason to
the law, and saw the professional's task as that of revealing its wisdom.
This occasionally involved him in an arrogant rejection of good but
isolated precedents, which he would treat as 'sudden' (hasty and uncon-
sidered) acts or judgements.
39
But even in discerning virtues allegedly
inherent in his system, the great judge was inevitably led to develop and
enhance his heritage. He needed to discover consistent principles that
explained away the discord of his sources, and that could be extended to
answer his contemporary needs. As S. E. Thorne remarked,
sentences beginning 'for it is an ancient maxim of the common law', followed by
one of Coke's spurious Latin maxims, which he could manufacture to fit any
occasion and provide with an air of authentic antiquity, are apt to introduce a new
departure. Sentences such as 'And by these differences and reasons you will better
understand your books', or 'And so the doubts and diversities in the books well
resolved' likewise indicate new law.
40
The great advantage of Coke's legal theory was that 'certainty' and intel-
lectual beauty (the elegant rationalisation of a chaotic field) were invari-
ably the marks of legal truth.
Coke saw the history of common law as that of a move from arbitrary
judgement to a system with enough sophistication to be predictable,
providing the anxious litigant, in a much favoured phrase, with 'certainty
the mother of repose'.
41
The people of Israel were governed by natural law
alone, 'before the law was written by Moses, who was the first reporter or
writer of law in the world'.
42
This was the general rule, and not a peculiar
privilege of the Jews, because kings were originally judges: 'before judicial
or municipal laws were made, Kings did decide cases according to natural
equity, and were not tied to any rule or formality of law, but did dare
jura.'
43
The system's evolution did not break the link with reason; it
became more reasonable not less, matured indeed into 'the perfection of
reason', in the course of its formalisation by the lawyers.
In England's case, notoriously, Coke thought this process had been very
long: that the common law had reached an asymptote of rationality by the
time of King Edward I, but that the fundamentals of the system had been
observed in Saxon, if not druidic times.
44
Because of its long continuous
39
Second reports, 67a; Third reports, 13b; Ninth reports, 89b.
40
S. E.
Thorne, Essays
in
English legal history, 1985,
p. 227.
41
Second reports, 75a; Third reports, 91b; Eighth reports, 53a.
42
Coke, Seventh reports, Calvin's case,
12b.
43
Ibid.,
13a.
44
Glenn Burgess elegantly argues {Politics,
6-7,
26-7, 76-7) that Coke conflated
two
ideas
about unwritten
law. He
agreed,
on the one
hand, with Davies, that
it
adapts itself
to
circumstance,
and
that
a
long development will produce
a
wise result.
On the
other,
he
quoted
an
argument
of Sir
John Fortescue's (discussed below,
p. 34)
which visualised
20 Law
history, the lawyer could be confident in imputing a near-infinity of reason
to the tradition he inherited. The method of the judge, with its confidence
in common law's resources, thus presupposed a certain vision of the
English past (this point will be further discussed in the context of Hale's
own historical outlook). For practical judicial purposes, the great antiquity
of common law meant that any of its rules, however foolish, could be
defended against criticism: 'if all the reason that were dispersed into so
many heads were united into one, yet would he not make such a law as the
law of England is, because by many successions of ages it hath been fined
and refined by so many learned men.'
45
In another kind of writer, the
defender of some limited positive system, this would have been a mere
conservative bromide; in Coke, who regarded common law as omnicom-
petent, it amounted to a claim to political power.
Coke thought, in fact, that there was no such thing as a question
undecidable within the common law.
46
A layman might have expected, for
example, that the judges would be baffled by the problem of the status of
'post-nati', the Scottish subjects of King James born after he ascended the
throne of the neighbouring realm. The issue had prompted Sir Edwin
Sandys (1561—1629), a member of the Commons, to make a quite conven-
tional appeal to natural law:
[he] showed that this case was proper to be consulted with the law of nations,
which is called *ius gentium'; for there being no precedent for it in the law 'lex
deficit' and Meficiente lege recurritur ad consuetudinem'
47
and 'deficiente consue-
tudine recurritur ad rationem naturalem',
48
which 'ratio naturalis' is the law of
nations called 'ius gentium'.
49
The test case, known as Calvin's case (1607) was given an elaborate report,
translated from Coke's usual French into a sonorous English. He delivered
a magisterial riposte to those who thought like Sandys:
if the said imaginative rule be rightly and legally understood, it may stand for
truth, for if you intend ratio for the legal and profound reason of such as by
diligent study and long experience and observation are so learned in the laws of
the common
law as
static.
It is
clear that law's adaptability
is
quite essential
to his
argu-
ment;
the
notion that
its
principles
had
remained
the
same
for
many hundred years
is at
most
an
unnecessary flourish.
As
Burgess rightly notes (p. 76-7), 'when
he
came
to
discuss
more detailed matters
... he
often tacitly abandoned
his
more extreme claims'.
45
Coke, First institutes, 97b.
46
One of a
number
of
interesting parallels with
the
thought
of
Ronald Dworkin,
par-
ticularly
as
expounded
in
Law's Empire, Harvard 1986.
47
'The
law is
wanting, [and] when
the law is
wanting
one
resorts
to
custom.'
48
'When custom
is
wanting
one
resorts
to
natural reason {ratio naturalis).'
49
Cobbett, State trials,
II,
563.
For
another
use of the
same argument,
see
British Library,
Harleian MSS 5220,
fo.
4v. The author, Sir John Dodderidge, was writing
in
the last years
of Queen Elizabeth's reign.
He
proposed
to use
this method
to
discover
the
rights
of
the
Crown.
Coke: the appeal to reason 21
this realm as out of
the
reason of
the
same they can rule the case in question, in that
sense the said rule is true; but if it be intended of the reason of the wisest man that
professeth not the laws of
England,
then
(I
say), the rule is absurd and dangerous.
50
It followed that the law had a response to all of the dilemmas thrown up by
social life, and that there could be no appeal, however unusual the case, to
the authority of lay opinions.
Coke did not hold, of course, that lawyers had nothing to learn from
other people. The judge, however learned, was not omniscient, and there
was no shame, in specialised concerns, in taking advice from the appro-
priate experts:
seeing that [common] laws do limit, bound and determine of all other humane
laws,
arts and sciences I cannot exclude the knowledge of any of them from the
professor of those laws; the knowledge of any of them is necessary and profitable.
But forasmuch as if a man should spend his whole life in the study of those laws,
yet he might add somewhat to his understanding of them: therefore the judges of
the law in matters of difficulty do use to confer with the learned in that art or
science, whose resolution is requisite to the true deciding of the case in question.
51
The judge had the privilege, however, of integrating all these forms of
knowledge, and stamping their conclusions with his own authority. To
recognise a principle as legal was to have grasped its rationality: the way it
could be harmonised with the 'reason' of the system as a whole. In Calvin's
case, for instance, Coke made a reference to 'the law of nature', describing
it as a 'part of the law of England'.
52
He was entitled to this move, though
the layman Sandys was not, because his view of nature was moulded by his
prior understanding of the law.
Coke's enemy was always 'natural' reason, reason unguided by pro-
fessionals, personified, he may have thought, by the presumptuous layman
who was his lawful king.
53
It was impossible, in principle, to arrive at a
legal conclusion without the use of legal argument. It necessarily followed
that there was no such thing as equity, if equity was an independent
science, a form of natural justice whic- might correct and supplement the
law. An equitable court (such as the court of Chancery led by his greatest
enemy Lord Ellesmere) presumed to be more reasonable than reason, and
was therefore looked upon with great distrust. The chancellor's strictly
equitable powers dated only from the time of Henry VI, and they lacked
50
Coke, Seventh reports, Calvin's case,
19a.
Lord Ellesmere's judgement also mentions
Sandys, or at least another member who made the same remark (Knafla,
Law
and politics,
220).
51
Coke, Third reports, xxxviii.
52
Coke, Seventh reports, Calvin's case, 12b.
53
For their most famous clash, see Coke, Twelfth reports,
65,
Coke's own account
of
this
dramatic scene,
as R. G.
Usher proved, was
an
account
of
what Coke wished
he
said.
Usher, 'James I and Sir Edward Coke', English Historical Review, 18 (1903), 664-73.
22 Law
the slightest statutory foundation.
54
Coke's theoretical hostility was not
unprecedented, but it differed from the attitude of his most authoritative
predecessor. For Christopher St German, existing law was fully equitable
(it drew on equitable principle), and therefore immune from correction.
55
But St German had also quite clearly believed that there were areas outside
the law, fields where the chancellor's conscience was the only appropriate
judge. His famous legal book took the form of a respectful dialogue
'betwixt a doctor of divinity and a student in the laws of England', an
interchange between experts in overlapping but autonomous fields. There
was a place, where common law was silent, for the lawyer to attend to lay
ideas.
Coke is probably best contrasted, in general philosophical as well as
legal terms, with a prominent absolutist who was later (as Lord Chan-
cellor) a judge in equity. Coke's view of legal knowledge was bound to be
opposed by Francis Bacon (1561—1626), if only because Bacon saw know-
ledge in every form as constructed out of isolated facts. Bacon presented
law in different terms: as a dependant of the sciences, rather than as their
queen. His argument on Calvin's case
showed that it was a singular commendation to the laws of England, that it was
not insociable, but contented to hear and be advised by other sciences in matters of
dependency upon them; as in cases of exposition of words by grammarians; in
matters of matrimony, deprivation, bastardy, by civilians; in minerals by natural
philosophers; in uses by moral philosophers.
56
The matters on which the common law was intended to be 'content to be
advised' included the rights of the king. There was a separate sphere of
political knowledge, whose conclusions were arrived at independently of
law, but which were binding upon common lawyers. In Bacon's case, at
least, the maxims that resulted were likely to be authoritarian.
57
It was
54
Coke,
The
second part of the Institutes
of the
laws of England
... the
second part...
the
third part
... the
fourth
part,
ed.
Brooke, 1797, Fourth Institutes,
82.
Coke admitted,
however, that there
was a
place
for
equity
in
'matters
of
trust
and
confidence' {Second
reports, 78b).
On the
practice
of
King's Bench, which
was
more accommodating than
Coke's theory would suggest,
see
Charles
M.
Gray, boundaries
of the
equitable func-
tion',
American Journal
of
Legal History,
20
(1976), 192-226.
W. J.
Jones, 'Conflict
or
Collaboration? Chancery attitudes
in the
reign
of
Elizabeth', American Journal
of
Legal
History, 5 (1961), 12-54, and Jones, The Elizabethan Court of Chancery, 1967, paint a
peaceful picture of the common law's normal relations with equity. Coke's conduct in
1616 is convincingly defended, at least from a jurisprudential standpoint, in J. H. Baker,
The legal profession and the common law, 1986, pp. 205-29.
55
The details
of
his thought are very much harder
to
pin down. See
J. A.
Guy,
St
German
on
chancery
and
statute, Selden Society, Supplementary series,
no. 6,
1985, esp.
pp.
83-93.
56
Cobbett, State trials,
II,
563.
57
For an
exploration
of
Bacon's thought, relating
his
absolutist stance
to his
legal
and
philosophical ideas, see Julian Martin, Francis Bacon,
the
state
and the
reform
of
natural
philosophy, Cambridge 1992.
Coke: the appeal to reason 23
ideas like his (as Chapter 2 will show) that provided ammunition for the
lawyers of the Crown.
The essence of Coke's theory, and its besetting weakness, was that the
law's authority was based upon 'reason' alone. The intellectual method of
the lawyer was the only judge of what was rational, and therefore what
was binding on the English. His reluctance to speak of common law as
custom was a mark of a reluctance to see it as in any sense an arbitrary
creation, a series of positive rules which were arrived at by consent. Hale's
writings on the law, culminating in his History of the common law of
England, drew heavily upon Coke's legal thought. The difference between
them was in Hale's theory of obligation, which based the law's authority
on contracts that were made between the people and their king. The heart
of the whole matter was Coke's unusual attitude to English written law
and therefore to the parliaments in which that law was made.
Though for judicial purposes Coke saw the law as unimprovable, he was
not a blind opponent of the idea of parliamentary legislation. The powers
and procedures of parliament were after all a part of common law.
58
He
tacitly admitted that there was a place for a legislative body, whose
purpose was to remedy the 'mischiefs' the existing system caused. His
objection was to clumsy legislation, in ignorance of the existing law, which
tended to cause more problems than it solved. Some statutes gave no
trouble, because they were nothing but 'declaratory' (they affirmed or else
restored the common law), but others were 'introductory', and a very
fertile source of social danger.
59
The history of the law, at least as Coke
surveyed it, was a history of oscillation round a mean. Time and again, for
superficial reasons, the English would depart from common law; time and
again, the law would be restored 'with great applause'.
60
The ignorance of
laymen was the cause of the uncertainty in law, and the remedy was
statutes drawn up by qualified professionals:
if Acts of parliament were after the old fashion penned, and by such only as
perfectly knew what the common law was before the making of any Act of
parliament concerning that matter, as also how far forth former statutes had
provided remedy for mischiefs and defects discovered by experience, then should
very few questions in law arise.
61
Statute could be as salutary as the unwritten law, so long as it was guided
by someone with a grasp of legal reason. In practice this seldom occurred,
but parliamentary wisdom was still an essential presumption of his theory.
If law and reason were identical, and parliament was a legislative body,
58
Coke,
First
institutes,
lib.
59
Coke, Eighth reports, xxiii; Coke, Third reports, xxxiii; Fourth reports, v-vi.
60
Coke, Third reports, xxxiii.
61
Coke, Second reports, ix-x.
24 Law
then the institution had to be regarded as the supreme authority on reason:
in other words as something like a court.
Coke's attitude to parliament has been much misunderstood, even by
writers broadly sympathetic, because of an assumption that Englishmen
were rising towards a 'modern' view of sovereignty. It has occasionally
been claimed (most notably by C. H. Mcllwain),
62
that Coke's ideas on
statute should be seen as a kind of survival: an unchanged relic of a period
when parliament was a judicial body, entrusted with 'finding' the law. In
fact, if anything, Coke was a very daring innovator. There seems to have
been a consensus, in the later years of Elizabethan England, on a rather
familiar view of parliament. Unlike unwritten law, which was intimately
linked with natural reason, the statute law was wholly 'positive'.
63
The
parliament was a court, at least in name, but it functioned as a modern
legislature, acting by representative consent.
64
As William Lambarde
(1536—1601) put it: 'forasmuch as every man, from the highest to the
lowest, is there either in person or by procuration, every man is said to be
bound by that which doth pass from such an assembly.'
65
A conventional
way to make this conventional point was to depict the parliament as
uniting all the forces of the body politic. Sir Thomas Smith (1513—77) said
that it 'representeth and hath the power of the whole realm both the head
and the body. For every Englishman is intended to be there present'.
66
Coke's theory was rather different. In the fourth part of his Institutes,
composed at the end of his life, he carefully described the role that
parliament should play. Like Smith, he used the simile of a 'body politic',
but he gave it a different twist:
as in the natural body when all the sinews being joined in the head do join their
forces together for the strengthening of the body there is ultimum potentiae, so in
the politique body when the king and Lords spiritual and temporal, knights,
citizens and burgesses are all by the king's command assembled and joined
together under the head in consultation for the common good of the realm, there is
ultimum sapientiae.
67
62
In The
high court of parliament, 1910.
63
For the
word 'positive',
see A
discourse upon
the
exposition
and
understanding
of
statutes, ed.
S.
E.Thorne, San Marino 1942,
p. 103
and Thome's learned note.
64
For an
authoritative verdict,
see G. R.
Elton,
The
parliament
of
England 1559-81,
Cambridge 1986,
p. 39. It
should
be
noted, however, that Elton
is
committed
to a
strictly
functional analysis.
He
analyses, with great thoroughness, the parliament's administrative
role.
'The
rest
was
pretence, even
if
that pretence could
at
times deceive
the
pretenders'
(p.
379).
It
might
be
protested,
of
course, that erroneous beliefs very frequently determine
political acts.
65
Lambarde, Archeion,
or the
High Courts
of
Justice
in
England, 1635,
p. 245. See
also
D.
M.
Dean
and N. L.
Jones,
The
parliaments of Elizabethan England, pp.
2-3.
66
Sir Thomas Smith,
De
republica anglorum,
ed. L.
Alston, Cambridge 1906,
p. 49.
67
Coke, Fourth institutes,
3.
Coke: the appeal to reason 25
The function of representation was to ensure that parliament was wise.
68
Nowhere in the Fourth institutes did he treat the legislature as a means for
securing popular assent. His treatment of its power to bind the absent was
an excellent example of this point. He confined himself to saying that a
statute was generally binding, because 'the law intends that every person
hath knowledge thereof, for the parliament represents the body of the
whole realm'.
69
He stressed presumed knowledge of statute, where Smith
and Lambarde stressed presumed consent.
Coke would not have been unusual if he had tried to denigrate the
statutes. Most people held that common law was in a vague sense 'higher'
than the laws that a parliament made, if only because it was mingled with
principles derived from natural justice.
70
Coke's strategy was to exalt the
statutes by tracing their authority to the 'reason' of unwritten law. By
presuming they were rational, in a sense to be determined by the judges, he
brought them under professional control. It was the lawyer's duty, as he
frequently confessed, to implement the parliament's intention, but the way
he reconstructed that intention very often in practice subverted the parlia-
ment's will.
71
His most detailed account of the process ran as follows:
Four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief
and
defect for which the common law did not provide.
3rd.
What remedy the parliament hath resolved and appointed to cure the disease
of the commonwealth.
68
A
counter-argument might
be
attempted, based
on the
maxim used
in
the Reports that
'an
Act
of
parliament
to
which
the
Queen
and all her
subjects
are
parties
and
give consent,
cannot
do a
wrong' {Ninth reports, 107a; weaker versions
at
Sixth reports, 27b and Eighth
reports, 137a).
But on the one
occasion that
he
elaborates upon this point {Eleventh
reports, 14a)
he
concentrates
on
the assembly's wisdom:
'it
was also urged that
if
the said
act
...
[should have
a
particular effect, then]
it
would
do a
wrong;
and as it is
said
in
Plowden
[1
Plowden 398]
the
parliament
is a
court
of
the greatest honour
and
justice,
of
which none ought
to
imagine
a
dishonourable thing, and
the
Doctor
and
student [p.
300]
it cannot
be
thought that
a
statute that
is
made
by
authority
of
the whole realm,
as
well
of
the King and
of
the Lords temporal
and
spiritual,
as of all the
Commons, will
do a
thing
against
the
truth'.
A
quotation from Fortescue follows,
to
much
the
same effect.
He
very
noticeably does
not
argue that
no one
can
be
wronged
by
their own consent.
69
Coke, Fourth institutes, 26. This was
not a
new idea (see
for
example Richard Crompton,
Uauthoritie et
jurisdiction
des courts de la majestie de la roygne, 1594, fo. 16). What is
significant is that it was Coke's only use of the notion of representation.
70
Cobbett, State trials, II, 581; S. E.Thorne (ed.), A discourse upon the exposition and
understanding of statutes: with Sir Thomas Egerton's additions, San Marino 1942, p. 1.
71
The source of Coke's approach was probably Edmund Plowden, whose Commentaries
(1571) were a model for the Reports. Appeals to 'the intent of the Act' are a recurring
feature of this work (see, for example, 1 Plowden 10, 18, 57, 205). Plowden also had a
tendency, to judge from a superficial scrutiny, to assimilate the reason of a statute to the
reason of the system as a whole. His definitive discussion is a short essay on statutory
interpretation appended to his treatment of Eyston v. Studd (2 Plowden 465-8). On the
rise of a stress on intentions, see the introduction to Thorne, Discourse upon the statutes.
26 Law
And 4th. The true reason of the remedy; and then the office of all the judges is
always to make such construction as shall suppress the mischief, and advance the
remedy, and to suppress subtle inventions and evasions for continuance of the
mischief, and pro privato commodo, and to add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro bono publico.
72
There was an ambivalence in Coke's position. On a sympathetic
reading, he claimed that professional learning equipped the lawyer to
identify the intended purpose of a given measure, and so to determine
whether or not it covered a particular situation. Unsympathetic readers
might plausibly accuse him of using sensitivity to the presumed intentions
of the law as a mask for prejudices of his own. The presumption that law
promoted 'public good' gave the ruthless judge a very powerful weapon.
Lord Chancellor Ellesmere (1540-1617) complained that he and his judicial
colleagues '[made] construction of [statutes] according to equity, varying
from the rules and grounds of law, and enlarging them pro bono publico,
against the letter and intent of the makers.'
73
Authority drained, in other
words, from the fallible makers of statute towards a wiser parliament,
existing in the minds of common lawyers. If Ellesmere is to be believed, a
similar group of presumptions effectively de-personalised the king, who
was continually supposed to will the nation's good, as opposed to the
short-term interests of the Crown. As the chancellor tartly put it, 'he hath
stood so much in phrase upon the King's honour, as in his resolutions he
hath had no respect to the King's profit'.
74
Coke's actual sovereign was
replaced, for legal purposes, by a constructed monarch who was far-
sighted and benevolent.
75
His theory's consequences for the king were worked through (much to
Hale's dismay) in the revolution years. From the point of view of parlia-
ment, there was also a very worrying implication. Coke grudgingly
allowed, in the Fourth institutes, that parliament was omnipotent de facto,
but his position's logic pointed another way.
76
Parliamentary authority
derived (to recapitulate) from precisely the same source ('reason') as the
authority of other courts. The institution was presumed to deliberate in
reasonable ways, and operated most effectively when the experts on
reason, the judges, were consulted. It was at least conceivable that a par-
liamentary statute might simply contradict what reason said. In such a
72
Coke, Third reports,
7b.
73
Mcllwain, High court, 294—5. Ellesmere
was
referring
to the
Magdalen College case,
in
which Coke
had
cited
the
principle quoted above {Eleventh reports, 74a).
74
Knafla,
Law and
politics, 302.
75
See
also,
on
this theme,
the
remarks
by
Clayton Roberts
on the
maxim that
the
'King
can
do
no
wrong',
in his
brilliant, unread
The
growth
of
responsible government
in
Stuart
England, Cambridge 1966.
76
Coke,
Fourth
institute,
36-8.
Coke: the appeal to reason 27
case the opinion of King's Bench was surely preferable to that of laymen.
There was thus a possibility that the court might choose to overrule a
statute. This was the claim Coke made in Bonham's case.
Dr Bonham had been gaoled, by order of the College of Physicians, for
practising their trade without a licence. Its powers in the matter, granted by
royal charter, had been confirmed by parliamentary statute. It was objec-
ted,
amongst other things, that these powers made the college a judge in its
own cause. The evidence for Coke's beliefs is contained in a single sentence
of his judgement (delivered 1610):
it appears in our books, that in many cases the common law will control Acts of
parliament, and sometimes adjudge them to be utterly void; for when an Act of
parliament is against common right and reason, or repugnant, or impossible to be
performed, the common law will control it, and adjudge such Act to be void.
77
It is possible he never spoke these words, a possibility which adds to their
obvious intrinsic interest.
78
If the dictum was interpolated later, grossly
distorting the original, then Coke must have felt very strongly about the
idea.
Coke's claim was so sensational that it has been exhaustively discussed.
A number of great lawyers have examined the Year Book precedents he
used, and come to broadly similar conclusions.
79
If Coke's decision argued
in good faith (the tacit assumption that these writers share), then he seems
to have seen the statute as 'repugnant' (self-contradictory). An Act that
made the college a judge in its own cause was not a mistake; it was
nonsense. Coke was not overturning what parliament said, because parlia-
ment had failed to say anything at all. At most he was interpreting the law
so it amounted to a contradiction. The case was not a precedent, it
followed, for judicial review of the substance of legislation.
On any reading of the crucial sentence, this highly ingenious view is
rather strained. 'Against common right and reason, or repugnant, or
impossible to be performed' is a strikingly elaborate formulation. 'Against
common right and reason', used anywhere else in Coke's works, would
carry the meaning 'against common law', as indeed would the more
ambiguous 'against reason'.
80
It makes no natural sense to take the words
'repugnant or impossible to be performed' as just an explanation of the
77
Coke, Eighth reports, 118a.
78
Charles Gray, 'Bonham's case reviewed', Proceedings
of the
American Philosophical
Society, 116 (1972), 36.
79
12
Modern 687-8 (the great Chief Justice Holt); C.
H. S.
Fifoot (ed.),
The
letters
of
Frederic William Maitland, Selden Society, Supplementary series, vol.
I,
1965,
p. 6; S. E.
Thorne, 'Dr Bonham's Case',
Law
Quarterly Review, 54 (1938), 543-52.
80
Coke, Eighth reports, 125b-26a, for example, contrasts the expression 'common right'
with merely local custom.
28 Law
earlier part of the phrase.
81
Reluctance to believe that Coke meant what he
said has rested in part on ingrained positivism, and partly on a related
prejudice: that the apparent claim (if it was made) was a survival from
medieval times.
82
The natural progression, it has always been assumed, is
from a court's 'law-finding' to the conscious legislation of a sovereign. If
the interpretation sketched here is correct, Coke's dictum was not a last
stand but a premeditated innovation, designed to bring the written law
under stricter judicial control. If the purpose of his judgement was to
establish a new principle, quite alien to the spirit of contemporary law,
then study of the precedents is unlikely to reveal his true intentions.
The dictum was largely ignored (a sign that Coke's opinions were
embarrassingly extreme) but the scanty evidence suggests that the rest of
the legal profession took his words in their literal sense.
83
At least one
contemporary writer gives strong support to the same interpretation.
Henry Finch (d. 1625) described the common law by quoting Cicero's De
legibus; he characterised the system, in much the same spirit as Coke, as
'refined reason, which when it is grown up, and is perfect, is rightly named
wisdom'.
84
He clearly distinguished natural from artificial reason.
85
He
then made the conventional point that 'laws positive, which are directly
contrary to the laws native, lose their force, and are not to be reputed as
laws at all'.
86
Not even the most barbarous of races has any right to legalise
a crime against natural law.
And this is sufficiently plain and manifest to all, being of such things as are against
the law of nature. But inasmuch as the law of reason is known but by such as can
judge well, and by these also but imperfectly known (as we have shown before) for
this reason a case is the more difficult to be known, what laws shall be said to
agree, or disagree to the same; only in general (as suffices in this case and to our
present purpose) it is truly said, and ought to be assented to by all, that the laws
which do in reality contradict the law of reason, are null and void, as well as those
which contradict the law of nature.
87
81
Plowden uses
a
similar triplet, giving equal weight
to
each
of its
components:
'if [a]
remainder had been appointed
to
commence upon
an
impossibility precedent,
or
upon
a
thing against law,
or
upon
a
repugnancy
...
there
the
remainder should
be
void,
for
such
a condition shall always
be
void'
(1
Plowden 32).
82
Thome, Discourse upon
the
statutes, 85—92; Mcllwain, High court, 286—92.
83
Gray, 'Bonham's case reviewed',
51-6. For
summaries
of the
case ignoring
its
most
famous dictum
see Sir
Thomas Ireland,
An
exact abridgement
in
English
of the
eleven
books
of
reports
of Sir
Edward Coke,
1651, pp.
314—6;
Sir
John Da
vies,
A
perfect
abridgement of the eleven books of reports, 1651, pp. 202-3.
84
Finch, Description,
53. The
words
are
quoted from Cicero,
De
legibus, 320: 'quid
est
autem
non
dicam
in
homine,
sed in
omni caelo atque terra ratione divinius? quae
cum
adolevit atque perfecta est, nominatur rite sapientia'.
85
Finch, Description, 52.
86
Ibid.,
53.
87
Ibid.,
53. The Description is a translation of the Law French Nomotechnia (1613). On the
history of this work see Wilfrid Prest, 'The dialectical origins of Finch's Law
1
, Cambridge
Law Journal, 36 (1977), 326-48.