Custom, time and reason: Early seventeenth-century conceptions of the common law

History of Political Thought

Volumn 19, Issue 3, 1998, Pages 363-405

  Tubbs, J W ^a  

^a UNIVERSITY OF WISCONSIN EAU CLAIRE   (United States)

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EID: 0032350264     PISSN: 0143781X     EISSN: None     Source Type: Journal    
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References (215)

1. J.G.A. Pocock, 'Burke and the Ancient Constitution: A Problem in the History of Ideas', in Politics, Language and Time (New York, 1973), p. 209.
2. J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1987), p. 36.
3. Ibid., p. 37.
4. Much of my understanding of the practice of the history of ideas I learned from his example and his generous and thoughtful guidance as a supervisor of my doctoral studies. He himself suggested that I undertake the study of which this essay is a part, and any merit which it possesses owes much to his insightful critique.
5. Such an examination cannot be exhaustive in a journal article. To take only two examples, adequate treatment of the relationship between the common law and equity, or the common law and legislation, would each require a small book.
6. See C.H. McIlwain, The High Court of Parliament and Its Supremacy (New Haven, 1910), p. vii.
7. J. W. Tubbs, The Common Law Mind (Baltimore, forthcoming).
8. Tractatus De Legibus et Consuetudinibus Regni Angliae (c. 1187).
9. De Legibus et Consuetudinibus Angliae.
10. 'Code of Justinian', The Civil Law, ed. and trans. P.O. Scott (Cincinnati, 1932), C.1.14.11.
11. 'Code of Justinian', C.8.52.2.
12. For an example of a thirteenth-century work setting forth these positions and several others, see Dissensiones Dominorum (Leipzig, 1834), p. 151.
13. If 'long' meant ten years with regard to prescription, they argued, it also meant ten years regarding custom.
14. See 'Code of Justinian', C.7.31.1.
15. 'Novels of Justinian', The Civil Law, ed. and trans. S.P. Scott (Cincinnati, 1932), Nov. 131.c.6.
16. Illa consuetudo praeiudicat iuri quae excedit hominum memorium. Decretals, I.4.11. Gloss.
17. e.g. in Y.B. 32 Edw. I 264.
18. e.g. by Littleton in his Tenures, Sect. 170: 'And note, no custom is allowable but such custom as has been used by title of prescription, that is to say, time whereof there is no memory to the contrary (de temps dont memorie ne court).'
19. Ibid.
20. T.F.T. Plucknett, A Concise History of the Common Law (London, 5th edn., 1956), p. 312.
21. De Laudibus Legum Anglie, ed. S.B. Chrimes (Cambridge, 1942), p. 37.
22. Reniger v. Fogossa, 1 Plowden's Comm. 9.
23. St German's Doctor and Student, ed. T.F.T. Plucknett and J.L. Barton (London, 1974), pp. 45, 47.
24. e.g. see Stebbs and Goodlacks Case, 1 Leonard 92; Devered and Ratcliffs Case, 2 Leonard 332; Jeroms Case, 4 Leonard 787.
25. Wrotesley v. Adams, 1 Plowd. Comm. 299.
26. The Case of Mines, 1 Plowd. Comm. 485.
27. 1569-1626. Sent by James I to Ireland as solicitor-general in 1603; in 1606 was appointed attorney-general for Ireland; in 1609 was made a serjeant; in 1626 was appointed as Chief Justice, but never took office.
28. Published at Dublin in 1615 as Le Primer Report des Casses et Matters en Ley resolues & adiudges in les Courts del Roy en Ireland. All quotations from Davies in this essay are taken from The Works in Verse and Prose Including Hitherto Unpublished Manuscripts of Sir John Davies, ed. A. Grosart (Blackburn, 1869-76).
29. Davies, Works, Vol. II, pp. 251-2.
30. Davies, Preface, Irish Reports, in Works, Vol. II, p. 251.
31. Ibid., p. 255. Fortescue had claimed that this argument was Aristotelian.
32. Ibid.
33. He asserts of the common law that 'no human Law, written or unwritten, hath more certaintie in the Rules and Maximes, more coherence in the parts thereof, or more harmonie of reason in it . . .'.
34. Davies, Preface, Irish Reports, p. 259.
35. Ibid., p. 255.
36. Ibid., p. 254. There is no evidence that Davies recognized that his praise for the common law, in comparison with other nation's laws, could be reduced to the claim that the English people were more virtuous and wise than other peoples.
37. Pocock, Ancient Constitution, p. 25.
38. Davies, Preface, Irish Reports, p. 261.
39. Ibid., p. 275.
40. J.G. A. Pocock, 'The Ancient Constitution Revisited: A Retrospective From 1986', in The Ancient Constitution and the Feudal Law (Cambridge, 1987). For a general discussion of Davies' aims in his Irish Reports, see Hans Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge, 1985).
41. J.G. A. Pocock, 'The Ancient Constitution Revisited: A Retrospective From 1986', in The Ancient Constitution and the Feudal Law (Cambridge, 1987). For a general discussion of Davies' aims in his Irish Reports, see Hans Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge, 1985).
42. J.G. A. Pocock, 'The Ancient Constitution Revisited: A Retrospective From 1986', in The Ancient Constitution and the Feudal Law (Cambridge, 1987). For a general discussion of Davies' aims in his Irish Reports, see Hans Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge, 1985).
43. Unpublished until 1656, thirty years after his death.
44. Davies, The Question Concerning Impositions, Works, Vol. III, p. 21.
45. Ibid., p. 10.
46. Ibid., p. 11.
47. Ibid., p. 25.
48. Ibid. pp. 24, 25.
49. Ibid., p. 24.
50. Ibid., p. 25.
51. Seventeenth-century common lawyers used the term 'positive law' to refer to both statute and common law.
52. For a fuller analysis of the development of this doctrine, see Francis Oakley, 'Jacobean Political Theology: The Absolute and Ordinary Powers of the King', Journal of the History of Ideas, XXIX (1968), pp. 323-6.
53. Quoted in M. Judson, The Crisis of the Constitution (New Brunswick, 1949), p. 112.
54. J. Dodderidge, Treatise on the King's Prerogative, Harl. MS. 5220, British Library, London.
55. Cobbett's Complete Collection of State Trials, ed. T. Howell, Vol. II (London, 1809), p. 387.
56. 'And truly, as the King doth suffer the customary Law of England to have her course . . .', Davies, The Question Concerning Impositions, p. 26.
57. F. Bacon, The Works of Francis Bacon, ed. J. Spedding, et al. (London, 1874), Vol. XIV, p. 118.
58. J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1987), p. 36.
59. Preface, 2 Co. Rep.
60. Preface, 3 Co. Rep., p. xvii.
61. For example, in Chudleigh's Case, 1 Co. Rep. 124a, 125a, 130a, at least three references are made to 'the ancient common law'; in Caudrey's Case, 5 Co. Rep. mention is made of 'the ancient law of the crown', 'the ancient right and law' and 'the ancient laws of the realm' (p. 8b), 'the ancient common laws of England' (pp. 15b, 38a, 39a), 'the good ancient laws' (p. 19a) and 'the ancient common laws of this realm' (p. 40b). Dozens of such examples are to be found in Coke's Reports.
62. 13 Co. Rep. 14.
63. His contemporaries regarded him as a very great lawyer. See Fuller, Worthies of England (1662), p. 176. Elizabeth made him, successively, Solicitor-General (1581), Master of the Rolls (1594) and Lord Keeper (1596). James I made him Baron Ellesmere, and he assumed the title of Lord Chancellor in 1603. He was Coke's great opponent in the dispute over supremacy between the common law courts and the equity courts which was revived at the end of the sixteenth century. See Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), pp. 155-81; J.H. Baker, 'The Common Lawyers and the Chancery: 1616', in J.H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 205-29; John P. Dawson, 'Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616', Illinois Law Review, XXXVI (1941), pp. 127-52.
64. His contemporaries regarded him as a very great lawyer. See Fuller, Worthies of England (1662), p. 176. Elizabeth made him, successively, Solicitor-General (1581), Master of the Rolls (1594) and Lord Keeper (1596). James I made him Baron Ellesmere, and he assumed the title of Lord Chancellor in 1603. He was Coke's great opponent in the dispute over supremacy between the common law courts and the equity courts which was revived at the end of the sixteenth century. See Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), pp. 155-81; J.H. Baker, 'The Common Lawyers and the Chancery: 1616', in J.H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 205-29; John P. Dawson, 'Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616', Illinois Law Review, XXXVI (1941), pp. 127-52.
65. His contemporaries regarded him as a very great lawyer. See Fuller, Worthies of England (1662), p. 176. Elizabeth made him, successively, Solicitor-General (1581), Master of the Rolls (1594) and Lord Keeper (1596). James I made him Baron Ellesmere, and he assumed the title of Lord Chancellor in 1603. He was Coke's great opponent in the dispute over supremacy between the common law courts and the equity courts which was revived at the end of the sixteenth century. See Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), pp. 155-81; J.H. Baker, 'The Common Lawyers and the Chancery: 1616', in J.H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 205-29; John P. Dawson, 'Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616', Illinois Law Review, XXXVI (1941), pp. 127-52.
66. His contemporaries regarded him as a very great lawyer. See Fuller, Worthies of England (1662), p. 176. Elizabeth made him, successively, Solicitor-General (1581), Master of the Rolls (1594) and Lord Keeper (1596). James I made him Baron Ellesmere, and he assumed the title of Lord Chancellor in 1603. He was Coke's great opponent in the dispute over supremacy between the common law courts and the equity courts which was revived at the end of the sixteenth century. See Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), pp. 155-81; J.H. Baker, 'The Common Lawyers and the Chancery: 1616', in J.H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 205-29; John P. Dawson, 'Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616', Illinois Law Review, XXXVI (1941), pp. 127-52.
67. A Complete Collection of State Trials, ed. T.B. Howell (London, 1809), Vol. II, pp. 674-5.
68. 'A Breviate or Direction for the Kinges Learned Councell Collected by the Lord Chauncellor Ellesmere, Mense Septembris 1615', in Knafla, Law and Politics in Jacobean England, p. 326.
69. Commons Debates, 1628, ed. Robert C. Johnson, et al. (New Haven, 1977-83), Vol. 2, p. 333.
70. 1584-1654. Selden was recognized by his contemporaries as one of the greatest English scholars of his time - John Milton called him 'the chief of learned men reported in this land' - and he was one of the first common lawyers to apply humanist methods to the study of legal history.
71. Commons Debates, 1628, Vol. 2, p. 327.
72. e.g. in his speech on 7 April he argued for 'the ancient and fundamental point of liberty of the person to be regained by habeas corpus when any man is imprisoned', Commons Debates, 1628, Vol. 2, p. 356.
73. For an excellent and detailed analysis of the development of his argument in his early works, see Paul Christianson, 'Young John Selden and the Ancient Constitution, ca. 1610-1618', Proceedings of the American Philosophical Society, CXXVIII (1984), pp. 271-315.
74. Preface, The Reverse or Back-face of the English Janus, trans. R. Westcot (London, 1683), sig. a3v-a4.
75. Selden, 'Notes upon Fortescue', in Sir John Fortescue, De Laudibus Legum Anglie (1672), pp. 6-7.
76. Selden was not the only common lawyer of distinction to make this point. Francis Bacon asserted that English laws were 'as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs' ('A Proposition to his Majesty by Sir Francis Bacon, Knight, his Majesty's Attorney-General, and one of his Privy Council Touching the Compiling and Amendment of the Laws of England', Works, Vol. XIII, p. 63). William Hakewill (1574-1655), a common lawyer with a reputation for learning who was a member of the first Society of Antiquaries about 1600 and a participant in the Commons Debates of 1628, criticized Coke's contentions about the antiquity of the common law by asserting 'that the laws of the Britaines were utterly extinct by the Romans; their laws again by the Saxons; and lastly, theirs by the Danes and Normans much altered' (W. Hakewill, 'The Antiquity of the Laws of this Island', in A Collection of Curious Discourses, ed. Thomas Hearne (London, 1771), p. 2.
77. Selden was not the only common lawyer of distinction to make this point. Francis Bacon asserted that English laws were 'as mixt as our language, compounded of British, Roman, Saxon, Danish, Norman customs' ('A Proposition to his Majesty by Sir Francis Bacon, Knight, his Majesty's Attorney-General, and one of his Privy Council Touching the Compiling and Amendment of the Laws of England', Works, Vol. XIII, p. 63). William Hakewill (1574-1655), a common lawyer with a reputation for learning who was a member of the first Society of Antiquaries about 1600 and a participant in the Commons Debates of 1628, criticized Coke's contentions about the antiquity of the common law by asserting 'that the laws of the Britaines were utterly extinct by the Romans; their laws again by the Saxons; and lastly, theirs by the Danes and Normans much altered' (W. Hakewill, 'The Antiquity of the Laws of this Island', in A Collection of Curious Discourses, ed. Thomas Hearne (London, 1771), p. 2.
78. Selden, 'Notes upon Fortescue', pp. 15-18.
79. In this famous metaphor, Selden plays fancifully upon the meaning of the claim that the common law was the 'same' in the seventeenth century as it had been for many centuries past. It is a mistake to read into the metaphor a belief on Selden's part that in some deep metaphysical sense the seventeenth-century common law really was the same as the medieval common law. After all, his point in writing the entire passage had been to refute the claim that the common law was better than other laws because it had existed unchanged longer. All he meant by the metaphor, it seems to me, was to say that having demonstrated that the common law is in fact now very different than it once was, he would concede that just as we sometimes speak of greatly altered ships and houses as if they were the same structures as originally built, so we might also speak of the modern common law as the same law as the medieval common law. It may be worth noting that the civil law, to which Selden referred in making this concession, recognized the sameness of a greatly modified ship not for the purpose of settling an ontological dispute but to resolve questions about ownership and liability.
80. G. Burgess, The Politics of the Ancient Constitution (University Park, PA, 1992), pp. 58, 63.
81. Ibid., pp. 63-4.
82. John Selden, Ad Fletam Dissertatio, p. 105.
83. Ibid.
84. Ibid., p. 165.
85. Burgess, Politics of the Ancient Constitution, pp. 6-7.
86. Although Selden believed that the use of Roman law in the common law courts had largely disappeared by the beginning of Edward III's reign, he recognized that as late as the Year Books of Edward II 'one finds not only the very words and maxims of the civil law as cited in pleadings before the king's judges (although without express references to their sources - a custom occasionally found today among our lawyers), but sometimes one also finds there that a question hangs on the interpretation of civil law . . .' (Selden, Ad Fletam Dissertatio, p. 149).
87. Much more frequently, the common lawyers used the Law French 'de temps dont memorie ne court'.
88. Burgess, Politics of the Ancient Constitution, pp. 6-7.
89. Y.B. 19 Edw. III (R.S.) 378.
90. Sir Henry Finch, Law, or a Discourse thereof (1627), p. 77.
91. Proceedings in Parliament 1610, II, ed. E.R. Foster (New Haven and London, 1966), pp. 170-97.
92. Ibid., p. 173.
93. Ibid.
94. Ibid.
95. Ibid., p. 174.
96. Ibid., p. 175.
97. Ibid.
98. Ibid., pp. 178-9.
99. Ibid., p. 178.
100. Ibid., p. 175.
101. Ibid., p. 182.
102. Ibid., p. 175.
103. Ibid., pp. 175-6.
104. '[W]hereas the common law is extended by equity, that whatsoever falleth under the same reason will be found the same law.' Ibid., p. 176.
105. Although Coke's voluminous writings in one place or another contain nearly all the pieces of Hedley's theory, he never tied them all together in such a coherent way.
106. e.g. 4 Co. Rep. Preface vi; Co. Litt. 110b; Co. Litt. 115b; Co. Litt. 344a; Rowles v. Mason, 2 Brownl. & Golds. 895 (1612).
107. Co. Litt. 115b.
108. Co. Litt. 110.
109. Finch, Law, or a Discourse thereof, p. 77.
110. For example, 6 Y.B. Edw. II, 18 (1313); 17 Edw. III, 216, 224 (1343).
111. Littleton, Tenures (Washington, 1903), Sect. 170.
112. For example, he uses the expression 'time out of mind' several times in the preface to the third volume of his Reports.
113. Preface, 3 Co. Rep. vi-vii.
114. Superiority in the sense of being better - more excellent - and not of controlling other forms of law. Coke may indeed have thought it desirable that the common law should control other kinds of law, but he did not assert its antiquity to prove that it did.
115. 2 Co. Rep. Preface. Coke was paraphrasing Sir John Fortescue, De Laudibus Legum Anglie, Ch. 17.
116. Calvin's Case, 7 Co. Rep. 6-7 (1608).
117. Bacon, in his essay 'Of Custom and Education', made a telling implicit criticism of this line of argument. It is not a custom's wisdom that explains its long continuation: 'We see also the reign or tyranny of custom, what it is. The Indians (I mean the sect of their wise men) lay themselves quietly upon a stack of wood, and so sacrifice themselves by fire. Nay the wives strive to be burned with the corpses of their husbands . . . There be monks in Russia, for penance, that will sit a whole night in a vessel of water, till they be encased with hard ice. Many examples may be put of the force of custom, both upon mind and body.' Bacon, Works, ed. Spedding, VI, p. 471.
118. Co. Litt. 97b.
119. As it would have been had Coke essentially conceived of the common law as custom. As Thomas Hedley noted, customs were 'triable by the country', which was the technical way of saying that their existence was to be determined as a matter of fact by ordinary inhabitants of the locality in which they were alleged to have force.
120. In the prefaces to his Reports, Coke's emphasis is on the antiquity of the common law and the wisdom produced and guaranteed by this antiquity. E.g. in the prefaces to all of the first eight parts of his Reports he repeatedly dwells on the law's antiquity. There are scattered references to the law's antiquity in his Institutes (e.g. in Co. Litt. 115b) but references to the law's reason predominate there in much the same way that references to its antiquity did in the Reports. Important discussions of reason and the common law are found in Co. Litt. 10b-11a, 97b, 183b, 232b and 394b-395a.
121. J.G.A. Pocock, 'Burke and the Ancient Constitution: A Problem in the History of Ideas', in Politics, Language and Time (New York, 1973), p. 214.
122. J. U. Lewis, 'Sir Edward Coke (1552-1633): His Theory of "Artificial Reason" as a Context for Modern Basic Legal Theory', Law Quarterly Review, LXXXIV (1968), pp. 334-5.
123. D.E.C. Yale, 'Hobbes and Hale on Law, Legislation and the Sovereign', Cambridge Law Journal, XXXI (1972), pp. 125-6.
124. e.g. in Dr. Bonham's Case, 8 Co. Rep. 652 (1609); Rowles v. Mason, 2 Brownl. & Golds. 895 (1611-12).
125. e.g. an interpretation was rejected because it was 'repugnant to law and reason', Corbet's Case, 1 Co. Rep. 190 (42 Eliz.); a doctrine was rejected because 'the law would not let in a thing so absurd, and against the law of nature and reason' (Sir William Ellis v. Archbishop of York, Hobart's Rep. 459 (17 Jac. I)).
126. e.g. 'And they said that this construction was just, and consonant to reason and equity' (Chudleigh's Case, 1 Co. Rep. 320 (31 Eliz.)).
127. Finch, Law or a Discourse thereof, pp. 74-5.
128. 'Ratio est anima legis' (quoted in Co. Litt. 394b), and 'Nihil quod est contra rationem est licitum' (quoted in Co. Litt. 97b).
129. Co. Litt. 394b.
130. Co. Litt. 97b.
131. e.g. in Ratcliff's Case, 3 Co. Rep. 728 (1592), 'And the reason of the common law is notable, and may be collected from the said ancient authors of the law . . .'; Bozoun 's Case, 4 Co. Rep. 972 (1584), 'a non obstante of the common law, will not, against the reason of the common law, make the grant good . . .'; Ferrer's Case, 6 Co. Rep. 266 (40 & 41 Eliz.), 'all which was remedied by the rule and reason of the common law . . . ; Englefield's Case, 7 Co. Rep. 430 (33 & 34 Eliz.), 'and all this agrees with the reason of the common law . . .'.
132. 12 Co. Rep. 64.
133. Co. Litt. 97b.
134. C. Gray, 'Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke', in Culture and Politics: From Puritanism to the Enlightenment, ed. P. Zagorin (Berkeley, 1980), p. 31.
135. Co. Litt. 62a.
136. 12 Co. Rep. 64. '[C]auses which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act that requires long study and experience, before that a man can attain to the cognizance of it . . .'.
137. Co. Litt. 97b. '[F]or reason is the life of the law, nay the common law itselfe is nothing else but reason; which is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's naturall reason . . .'.
138. Co. Litt. 97b. Aristotle, in a famous passage, had tied art to experience: 'Now art arises when from many notions gained by experience one universal judgment about a class of objects is produced.' Metaphysics, Bk. I, ch. I.
139. Co. Litt. 232b.
140. Co. Litt. 97b; Calvin's Case, 9 Co. Rep. 3b.
141. Proceedings in Parliament, 1610, Vol. II, ed. Foster, pp. 175-6.
142. Sir John Dodderidge, The English Lawyer (London, 1631), p. 242. Solicitor-general, sergeant to the king, and a justice of the court of the King's Bench from 1612-28, Dodderidge was fully Coke's peer in knowledge of the common law, and vastly his superior in theoretical jurisprudence.
143. Ibid., p. 191.
144. Ibid., p. 196.
145. Ibid., p. 201.
146. Ibid., pp. 62, 63.
147. Eleonore Stump, Boethius's De topicis differentiis (Ithaca, 1978), p. 25.
148. See Alessandro Giuliani, 'The Influence of Rhetoric on the Law of Evidence and Pleading', Juridical Review, VII (1962), pp. 216-51.
149. Educated at Cambridge in the mid-1570s and at Gray's Inn, called to the bar in 1585, and called to the degree of serjeant-at-law in 1616. He began work on his treatise towards the end of the sixteenth century; it was first published in law French in 1613 as Nomotechnia, cestascavoir un Description del Common Leys d'Angleterre solonque les Rules del Art Parallelees ove les Prerogative Ie Roy, &c. &c. An English version was published posthumously, in 1627, entitled Law, or a Discourse thereof. As a systematic exposition of the common law, this work has been highly regarded. Its method served as a basis for Blackstone's Commentaries. Blackstone invidiously compared Coke's Institutes with it: 'Sir Henry Finch's discourse of law is of a very different character; his method is superior to all that were before extant . . .' (W. Blackstone, 'Analysis of the Laws of England', in Tracts Chiefly Relating to the Antiquities and Laws of England (1771), p. vi).
150. Finch, Law, or a Discourse thereof, p. 5.
151. Ibid., p. 74.
152. Ibid., p. 75.
153. Ibid.
154. Ibid., p. 76.
155. He was at pains to claim that the common law of England was just one of many common laws in the world. Indeed, he said, the laws of every people are common laws, and are 'the golden and sacred rule of reason'. His point seems to have been that there is no basis for invidiously comparing the laws of different people because if they are truly law they will be in accord with the law of nature and the law of reason.
156. Finch, Law, or a Discourse thereof, p. 76.
157. Dodderidge, The English Lawyer, p. 150.
158. Ibid., pp. 158-9.
159. Ibid.
160. Ibid., p. 140.
161. Ibid.
162. Ibid., p. 241.
163. It is probably true, as Professor Stephen Siegel has written, that the thinking of all educated men of Coke's time had been influenced by Aristotelian epistemology, whether they knew it or not. Stephen A. Siegel, 'The Anstotelian Basis of English Law', New York University Law Review, LVI (1981), pp. 30-1.
164. There undoubtedly were common lawyers who had no training in logic and rhetoric except for what they had learned indirectly at the Inns of Court, and who resisted such learning William Fulbecke' s and Sir John Doddendge's detailed arguments for the utility of a liberal education for legal study would be hard to understand otherwise.
165. Co. Litt. 235a.
166. Dodderidge, The English Lawyer, p. 65.
167. Ibid., p. 62.
168. Aristotle, Nicomachean Ethics, Bk. VI, ch. 6; Aristotle, Posterior Analytics, Bk. I, ch. 2.
169. Aristotle, Nicomachean Ethics, Bk. VI, ch. 6; Aristotle, Posterior Analytics, Bk. I, ch. 2.
170. Aristotle, Posterior Analytics, Bk. I, ch. 3. Dodderidge echoed this point, saying of the primary conclusions of reason that 'the manifest truth and great Reason of which said Grounds is evident to any person of any Judgment, and need no proofe for demonstration and establishing of them'. Dodderidge, The English Lawyer, p. 193.
171. Aristotle, Posterior Analytics, Bk. I, ch. 3. Dodderidge echoed this point, saying of the primary conclusions of reason that 'the manifest truth and great Reason of which said Grounds is evident to any person of any Judgment, and need no proofe for demonstration and establishing of them'. Dodderidge, The English Lawyer, p. 193.
172. Aristotle, Posterior Analytics, Bk. I, ch. 2.
173. Ibid., Bk. II, ch. 19.
174. See Aristotle, Nicomachean Ethics, Bk. VI, ch. 8.
175. Aristotle, Topics, Bk. I, ch. 1, in The Works of Aristotle Translated into English under the Editorship of W.D. Ross (London, 1913), trans. W.A. Pickard-Cambridge.
176. Aristotle, Topics, Bk. I, ch. 1, in The Works of Aristotle Translated into English under the Editorship of W.D. Ross (London, 1913), trans. W.A. Pickard-Cambridge.
177. See Aristotle, Nicomachean Ethics, Bk. I, ch. 3; Bk. VI, ch. 8.
178. 'Dialectic' was the term that Aristotle used for the branch of logic that 'reasons from opinions that are generally accepted', Aristotle, Topics, Bk. I, ch. 1.
179. Ibid.
180. De Laudibus Legum Anglie, ed. S.B. Chrimes (Cambridge, 1942) pp. 21, 23.
181. For example in Rastell's An Exposition of certain Difficult and Obscure Wordes and Termes of the Law, the discussion of maxims was borrowed almost entirely from Fortescue: 'Maximes bee the foundations of the law, and the conclusions of reason, and are causes efficient, & certain universal propositions so sure and perfect that they may not be at any time impeached or impugned, but ought alwayes to bee observed and holden as strong principalles and aucthorities of themselves although they cannot be proued by force of argument or demonstration logical, but are known by enduction by the way of sence and memory.' First published as Exposiciones Terminorum Legum Anglorum in 1527, editions translated by his son William were published in 1567, 1579, 1592, 1595, 1602, 1641 and 1667.
182. For example in Rastell's An Exposition of certain Difficult and Obscure Wordes and Termes of the Law, the discussion of maxims was borrowed almost entirely from Fortescue: 'Maximes bee the foundations of the law, and the conclusions of reason, and are causes efficient, & certain universal propositions so sure and perfect that they may not be at any time impeached or impugned, but ought alwayes to bee observed and holden as strong principalles and aucthorities of themselves although they cannot be proued by force of argument or demonstration logical, but are known by enduction by the way of sence and memory.' First published as Exposiciones Terminorum Legum Anglorum in 1527, editions translated by his son William were published in 1567, 1579, 1592, 1595, 1602, 1641 and 1667.
183. Co. Litt. 67a.
184. Co. Litt. 10b-11a.
185. H.F. Jolowicz, 'Roman Regulae and English Maxims', in L' Europa e il diritto romano: studi in memoria di Paolo Koschaker, I (Milan, 1954), p. 215.
186. Co. Litt. 67a. Also see St German, Doctor and Student, ed. T.F.T. Plucknett and J.L. Barton (London, 1974), p. 57; Serjeant Morgan, arguing in Colthirst v. Bejushin, 1 Plowd. Comm., The English Reports, LXXV (London, 1907), p. 44; Ellesmere, 'The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati', in Knafla, Law and Politics in Jacobean England, p. 218.
187. Co. Litt. 67a. Also see St German, Doctor and Student, ed. T.F.T. Plucknett and J.L. Barton (London, 1974), p. 57; Serjeant Morgan, arguing in Colthirst v. Bejushin, 1 Plowd. Comm., The English Reports, LXXV (London, 1907), p. 44; Ellesmere, 'The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati', in Knafla, Law and Politics in Jacobean England, p. 218.
188. Co. Litt. 67a. Also see St German, Doctor and Student, ed. T.F.T. Plucknett and J.L. Barton (London, 1974), p. 57; Serjeant Morgan, arguing in Colthirst v. Bejushin, 1 Plowd. Comm., The English Reports, LXXV (London, 1907), p. 44; Ellesmere, 'The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati', in Knafla, Law and Politics in Jacobean England, p. 218.
189. St German, Doctor and Student, p. 69.
190. His Student in the Laws of England gave a response in several parts: many maxims were so well known by the English people through usage and custom that no proof of them was necessary; others not so well known by the people could be known through the law of reason; still others could be known through a variety of authoritative written materials such as the Year Books, records of the king's courts and treasury, and statutes. St. German, Doctor and Student, pp. 69 and 71.
191. Dodderidge followed standard common-law practice in referring to the propositions from which legal reasoning proceeded indiscriminately as grounds, maxims, principles, eruditions and rules. Dodderidge, The English Lawyer, pp. 150-1.
192. Ibid., pp. 191-3.
193. Ibid., p. 194. This approach to secondary principles of reason, allowing deduction from English customs as well as from the law of nature, follows St German's treatment in Doctor and Student, and thus is closer to Gerson's treatment than to Aquinas which limited the secondary law of nature to deductions from the primary law. See J.L. Barton, Introduction, Dialogue Between a Doctor of Divinity and a Student of the Common Law (London, 1974), p. xxix.
194. Ibid., p. 194. This approach to secondary principles of reason, allowing deduction from English customs as well as from the law of nature, follows St German's treatment in Doctor and Student, and thus is closer to Gerson's treatment than to Aquinas which limited the secondary law of nature to deductions from the primary law. See J.L. Barton, Introduction, Dialogue Between a Doctor of Divinity and a Student of the Common Law (London, 1974), p. xxix.
195. Ibid., p. 194. This approach to secondary principles of reason, allowing deduction from English customs as well as from the law of nature, follows St German's treatment in Doctor and Student, and thus is closer to Gerson's treatment than to Aquinas which limited the secondary law of nature to deductions from the primary law. See J.L. Barton, Introduction, Dialogue Between a Doctor of Divinity and a Student of the Common Law (London, 1974), p. xxix.
196. Dodderidge, The English Lawyer, p. 207.
197. Ibid., p. 194.
198. Ibid., p. 197.
199. Ibid., p. 204.
200. Ibid., p. 196.
201. Ibid., pp. 207-9. Dodderidge said that there were 'at the least many thousands' of such disputable maxims in the common law.
202. Ibid., p. 209.
203. Ibid.
204. Ibid., p. 212.
205. Ibid.
206. Colthirst v. Bejushin, 1 Plow. Comm. 27.
207. Dodderidge, The English Lawyer, p. 229.
208. Fortescue, De Laudibus Legum Anglie, pp. 21, 23.
209. e.g. J. Rastell, An Exposition of certain difficult words and termes of the Lawes of this Realme (London, 1592); Serjeant Morgan in Colthirst v. Bejushin, 1 Plowd. Comm., English Reports, LXXV, p. 44.; Co. Litt. 11a.
210. e.g. J. Rastell, An Exposition of certain difficult words and termes of the Lawes of this Realme (London, 1592); Serjeant Morgan in Colthirst v. Bejushin, 1 Plowd. Comm., English Reports, LXXV, p. 44.; Co. Litt. 11a.
211. 'And by reasoning and debating of grave learned men the darknesse of ignorance is expelled, and by the light of legall reason the right is discerned . . . Certaine it is, that in matters of difficultie the more seriously they are debated and argued, the more truely they are resolved . . .', Co. Litt. 232b.
212. R. Pound, 'The Maxims of Equity', Harvard Law Review, XXXIV (1921), p. 833.
213. Bacon, Preface, The Maxims of the Law, in Works, VII, p. 322.
214. The common law had not yet come to recognize judicial precedent as an official source of law, even if medieval judges had sometimes frankly admitted that the cases they decided made new law throughout the land.
215. Lane's Case, 2 Co. Rep. 16b.