Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

66 Legal History in the Making
Jocelyn Simon's assessment of the structure of Cowell's Institutiones is
memorable and none too complimentary: fitting English common law into
the titles and heads of Justinian's Institutes, he said, 'was rather like crushing
an Ugly Sister's foot, bunions and all, into Cinderella's glass slipper'. 23 One
might turn that remark on its head, however, and point to a different moral.
What Simon said should remind us that the English lawyers' conceptions of
their whole common law were not, after all, completely different from the
ways civilians imagined their Corpus luris. For Cowell even to conceive the
idea of compressing the mass of common law into Justinian's framework,
he and his readers had to recognize that the common lawyers' learning and
the Corpus luris Civilis were more or less the same sort of thing: a body of
knowledge, not a process, not a sentiment. The lesson is, to keep Simon's
metaphor, not that English law fitted awkwardly into the Roman slipper, but
that English law was itself a foot, not a nose or a tree or a sea voyage - that
Cowell could sensibly have made the effort to try it on for size.
Who was John Cowell? When he published his Institutiones luris Anglicani,
Cowell was Regius Professor of Civil Law at Cambridge and Master of
Trinity Hall. 24 Alongside his academic career, he maintained an active
civilian practice in London. 25 Cowell was no common lawyer, 26 yet he
showed considerable mastery of the common law sources and common law
learning, and a willingness to provide what many students of the common
law said they wanted, a single elementary work that sketched the whole of
the law within a comprehensible structure.
Not only was Cowell an outsider in 1605, but he was beginning to make a
reputation for himself as an opponent of the common law. In the same year
that his Institutiones appeared, Cowell helped draft the Articuli Cleri, a major
salvo from the church courts in their battle against the common law judges'
writs of prohibition. 27 The common lawyers' antagonism focused on Cowell
himself in 1610, when his second work, The Interpreter, came under fire for its
overly 'absolutist' definitions of the terms 'King', 'Parliament', 'Prerogative'
and 'Subsidy', and for a quotation of the French civilian Francois Hotman's
jibe at the common lawyers' revered text, Littleton's Tenures. 7 * 1 In that year,
23 J. Simon, 'Dr. Cowell', Camb. Law Jour., xxvi (1968), 263.
24 Coquillette, 'Legal Ideology and Incorporation', 71 and Civilian Writers, 79-80.
25 B.P. Levack, The Civil Lawyers in England, 1603-1642: A Political Study (Oxford, 1973), 21,
221. 26 Cowell would certainly have encountered common lawyers in his legal and governmental activities
in London, but there is no evidence that he had ever studied at any of the Inns of Court or even received
an honorary membership in one, as several other prominent civilians did, ibid., 129.
27 Ibid., 139. Archbishop Richard Bancroft presented this list of twenty-five complaints to the Privy
Council, and the common law judges prepared a formal, point-by-point defence of their prohibitions,
found in E. Coke, Second Part of the Institutes (1642), 601-18.
28 J. Cowell, The Interpreter (1607), s.v. Littleton, sig. [Ss2v], quoting F. Hotman, De feudis
commentatio tripertita (1573), rptd. De verbis feudalibus commentarius (1587) s.v. Foedum, col. 18.