Aumann, F. R.

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University of Kentucky

Kentucky Law JournalVolume 18 | Issue 1 Article 61929Lord Coke, The Compleat Student of theCommon LawF. R. AumannThe Ohio State UniversityFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Legal Education CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationAumann, F. R. (1929) "Lord Coke, The Compleat Student of the Common Law," Kentucky Law Journal: Vol. 18 : Iss. 1 , Article 6.Available at: https://uknowledge.uky.edu/klj/vol18/iss1/6LORD COKE, THE COMPLEAT STUDENT OF THECOMMON LAWToday as hundreds of students struggle through the Lang-dell system of studying the common law it might, be of interestto them to take stock of some of the methods and habits of studyof a man who did much through these methods and habits ofstudy to fix the character of the common law in a time in whichthe future of that system was not a little uncertain.Sir Edward Coke (1552-1633) the man in question lived inthat transitional Renaissance-Reformation period during whichthe medieval Europe receded and the modern Europe burstingover with intellectual and literary activity swung into place. Acontemporary of Johnson, Shakespeare and Bacon, he was notovershadowed by their tremendous intellects and attainments.Just as the statesmanship of the Tudors fixed the form andshaped the course of the development of the English state so didthe work \of Coke fix the form and shape the development ofmodern English law. For, a profound knowledge of the commonlaw of England, he stands unrivalled."Coke's books," says Maitland "are the great dividing lineand we are hardly out of the Middle ages till he has dogmatizedits results." His career as a judge and in Parliament was of im-measurable importance in securing the supremacy of the com-mon law. Not only did he uphold the supremacy of the commonlaw over rival bodies of law, but also over all forces and personsin the state, save Parliament. And even in the case of Parlia-ment, in Bonham's case, (8 Rep. 118), he says that "When anact of Parliament is against Common Right and Reason, orrepugnant, or is impossible to be performed, the common lawwill control it, and adjudge such Act to be void, etc.""His writings" says Holdsworth "form the starting pointof the modern as distinct from the medieval common law becausein them medieval rules are so harmonized with the modern addi-tions that they fitted the Common Law to guide the future legaldevelopment not only of England, but also of the manydominions which Englishmen were to found beyond the seas." 1His great work is his Commentary on Littleton, which mightbe said to contain the whole Common Law of England as it thenHoldsworth, A History of the English Law, Vol. 5, pp. 424-425.KENTUCKY LAW JOURNALexisted. This is the work which Carlyle dubs "tough old Cokeupon Littleton, one of the toughest men ever made.'2 His Re-ports were of equal scope and importance. Even his perennialenemy Lord Bacon concedes as much."To give every man his due," he saysi "had it not been forSir Edward Coke's Reports, which, though they may have manyerrors, and some peremptory and extrajudicial resolutions morethan are warranted, yet they contain good decisions and rulingsthe law by this time had been a ship without ballast for thatthe cases of modern experience are fled from those that areadjudged and ruled in former times.' '"Coke did these tremendous tasks in addition to his laboriousoccupations as Attorney General and Chief Justice. He was anindefatigable worker. The first three parts of his Reports werepublished in 1601, the fourth and fifth in 1603, and the folowingsix parts between 1606 and 1616.S..in the days of Elizabeth and James I," Maitlandsays, "Sir Edward Coke, the incarnate common law, shovels outhis enormous learning in vast disorderly heaps."4 That paintshim as well as anything. H6 is always at it, either burrowingaway in the smouldering records of the older days in search ofthe ancient custom, or writing it down for preservation and use."Out of the old fields comes the new corn," he says, and itis in the old field that he spends his long life of hard, exactinglabor so that its product might be made available to the pro-fession. Once he discovered the law he wrote it down."Nothing," he said, "is or can be so fixed in mind, orfastened in memory, but in a short time it may be loosened outof the one, and by little and little quite lost out of the other. Itis therefore necessary that memorable things should be com-mitted to writing (the witness of times, the light and life of thetruth), and not wholly left to the slippery memory, which seldomyieldeth a certain reckoning."uThis is a slow, painful process. But Coke was not one toavoid a task because it was unpleasant or difficult. That was hisgreat asset, his capacity for hard, dogged, unremitting labor.As a student of the Inner Temple from 1572 to 1578, his daily2 Maitland and Montague, A Sketch of English Legal History, p. 113.3 Butler's Reminiscences, Vol. 1, p. 115..4 Maitland and Montague, A Short Sketch of English Legal Hostory,p. 113.Coke's Reports, Part I, pp. 25-26.LORD COm, COmPLEAT STUDENT OF CommON LAWroutine was said to be something like this: At three in the morn-ing he would arise in the winter season, lighting his own fire.Until the courts met at eight his time was spent in readingBracton, Littleton, the Year Books and the folio Abridgementof the Law. Then he betook himself to Wetminister, where heheard cases assigned until twelve. After a short meal in theInner Temple Hall, the afternoon was spent at readings andlectures. If these did not take up the full afternoon, he spentthe remaining time in private study.After the supper hour was over the moots took place. Itwas then that difficult questions of law were propounded anddiscussed. After this was concluded he went to his room andput into his notebook under proper headings, the information hehad acquired during the day. At nine o'clock his day was over.This left no place in his schedule for amusement, literature, orthe so-called "good things" of life. These things never did playan important part in the life of Coke. He was absorbed in thelaw and lost in consequence many things of value.To know the law, one must work. "In troth," he says,"reading, hearing, conference, meditation and recordation, arenecessary to the knowledge of the common law, because it con-sisteth upon so many and almst infinite particulars: but anorderly observation in writing is most requisite of them all;, forhearing without reading is slippery and uncertain, neither ofthem yield seasonable fruit without conference, nor both of themtogether without due and orderly observation."0 'Acknowledging no royal road to learning for himself, hissuggestions to the student of the law contains no easy detours toa knowledge of the law. In the preface to his work on Littleton,he says:"M ine advice to the student is, that before he read anypart of our commentaries upon any section, that he first readagain and again our author himself in that section, and do hisbest endeavors, first to himself, and then by conference withothers (which is the life of study), to understand it, and thento read our commentary thereupon, and no more at any one timethan he be able with delight to bear away."Not only must the student know what he knows thoroughlybut he must know a great deal. "I would our student to be aOCoke's Reports, Preface.KENTUCKY LAW JouaRNcompleat lawyer," he says. To be a "compleat lawyer" hewould have him to be on familiar terms with the law of the pastas well as the law of the present. His own mind was photo-graphic and distinguished by his ability to keep fresh and clearthe picture once he had secured it. The scope of his knowledgewas tremendous. No detail was too unimportant or trivial toescape his consideration. He would have the student of thecommon law to follow the same course.In reporting a case, his method was marked by the sameexhaustive thoroughness. He would permit himself no economyof time or space. In Calvin's case (8 Coke's Reports) he givesus an idea of his system of reporting, "Now that I have takenupon me to make a report of their arguments, I ought to do thesame fully, truly and sincerely as possibly I can; howbeit, seeingthat almost every judge had in the course of his argument, aparticular method, and I must hold myself to one, I shall giveno offense to any if I challenge that which of right is due everyreporter, that is, to reduce the sum and effect of all the argu-ments the reporter thinketh to be fittest and clearest for theright understanding of the true reasons and causes of the judg-ment and resolutions of the case in question."Long, tedious, methods, these. Nothing in them to strike asympathetic response in this age of rush. Speed and ease ofaccomplishment, which we value so much, had no place here.Lord Coke did not learn in ten easy lessons. His results wereobtained by virtue of long, grinding hours. Whatever we maythink of the methods he used, we must value them highly, if weare admirers of the common law.Sir James Stephen brings this home to us. "Coke's Insti-tutes," he says, "have had a greater influence on the law ofEngland than any work written between the days of Bractonand Blackstone." "When the older learning became obsolete,"he continues, "Coke came to be regarded more and more as thesecond father of the law behind whose works it was not necessaryto go.' 1 If it were not for him we would have to go throughthe vertable wilderness of cases found in the Year Books for ourknowledge of the older law, or else go to the valuable but inade-quate abridgements of Stratton, Fitzherbert, and Roll.7 Stephen's A History of the Criminal Law of England, Vol. II, p.LORD COKE, COMPLxAT STUDENT OF COMMON LAwPerhaps this fact might justify the method and time spentby our Lord Coke with his common law. Let us hope so, at least,for his arduous labors were not acomplished without denial onhis part. Like many workers who toil in the field of literaryproduction, he had to drive himself to his labours. There camemany times when he felt discouraged and envious of those whoworked with more tangible materials.He gives expression to this feeling in the following para-graph: "Whilst we were in hand," he says, "with these fourparts of the Institutes, we often having occasion to go to thecity, and from thence into the country, did in some sort envythe state of the honest ploughman and other mechanics; for one,when he was at work, would merrily sing, and the ploughmanwhistle some self-pleasing tune, and yet their work both pro-ceeded and succeeded; but he that takes upon him to write dothcaptivate all the faculties and powers, both of his mind andbody, and must be only attentive to that which he collecteth,without any expression of joy or cheerfulness whilst he is atwork."8Consolation for many may be found in this statement.Toiling on some particularly difficult problem, a moment's con-templation of this plaint of Lord Coke may bring renewedvigor. For if this hardy old veteran of the common law had hismoments of weakness, then it is clear that to be a "compleatstudent" of the common law, everyone must experience some dis-couragement.F. RL. ATumAPolitical Science Department,Ohio State University,Columbus, Ohio.g1-fe of Sir Edward Coke, p. 283. Campbell's 'Lives of the ChiefJustices.

Lord Coke, The Compleat Student of the Common Law

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Lord Coke, The Compleat Student of the Common Law

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