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

70 Legal History in the Making
of the Institutiones, but it is reasonable to suppose that some were expected
to do so. Cowell's copious citations certainly indicated a great deal of effort to
make the work useful for practising common lawyers. As Co well knew from
looking over the works he was citing, students of the common law were already
encountering most of the Institutes' major categories, suffused through the rest
of their professional literature. His text was more accessible and useful than
the editions of Bracton and Glanvill they were acquiring.
Historians differ in their estimates of the impact of Cowell's Institutiones. One
writes of its 'evident popularity', another calls it a 'spectacular failure'. 46 Both
estimates derive from the same evidence. Latin editions of the Institutiones
luris Anglicani were published in Cambridge in 1605, in Oxford in 1630 and
1664 and in Frankfurt in 1630. An English translation appeared in London in
1651 and was reprinted in 1676. Cowell's book thus had more printings than
did, for example, Francis Bacon's Elements of the Common Laws, though of
course many fewer than Coke's Institutes. 47
Some historians have accounted for the 'failure' of the Institutiones, if that
is what it was, by pointing to Cowell's decision to use Justinian's Institutes as
his plan. Holdsworth, in particular, thought the form of the book 'exotic',
unsuitable and forced. 48 This estimate goes too far. Cowell's idea to base his
compilation on the Institutes was probably quite sound, given the familiarity
of much of the basic terminology. But his decision to make absolutely no
changes in the title headings he took from Justinian no doubt reduced the
book's impact for students of the common law. Though he cited Bracton
wherever possible for the classifications and much of the content of his book,
Cowell's title page made no effort to hide the civil law origin of his format.
The language, title and headings of the book all made it appear less a rational
ordering of English law than an effort to show how much (or little) English
law had in common with Roman law. 49
In 1651, forty years after his death, Cowell's Institutes of the Laws of
England gained a new readership in an English translation. The title page
advertized that the book was translated 'according to Act of Parliament, for
46 Compare Watson, 'Justinian's Institutes and Some English Counterparts', 184 ('evident
popularity') and Levack, Civil Lawyers, 138 ('partially successful') with Coquillette, 'Legal Ideology
and Incorporation', 73 and Civilian Writers, 80-81 ('spectacular failure') and Simon, 'Dr. Cowell',
263 ('unsuccessful').
47 Bacon's Elements was printed in 1630,1636 and 1639. R.W. Gibson, Francis Bacon: A Bibliography
of His Works and of Baconiana to the Year 1750 (Oxford, 1950), xvi. Such a comparison is suggested
by Bacon's own hope to surpass Coke in the estimation of future generations of lawyers, Works of
Francis Bacon, xiii, 70.
48 W.S. Holdsworth, A History of English Law, v, 3rd ed. (1945), 21, 23; Stein, 'Continental
Influences', 1108; Rodgers, 'Legal Humanism', 128. See also Coquillette, 'Legal Ideology and
Incorporation', 321, Civilian Writers, 101.
49 B.P. Levack, The Formation of the British State: England, Scotland, and the Union, 1603-1707
(Oxford, 1987), 138, reports discovering notes in the Inner Temple Library, of unknown authorship,
recommending that one 'read Mr. Doctor Cowell's little book of Institutes for the matters of every
chapter in the 4 books of Institutes, where it is shown how little of those Institutes is now our law'.