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

The Structure of English Common Law in the Seventeenth Century 71
the benefit of all'. No statute or resolution singling out the Institutiones has
come to light, however, and it is safe to assume that the publisher referred
merely to the general Act of 1650 ordering all 'books of the Law of England' to
be translated into English. 50 The early 1650s were a time of strident attacks on
the common law generally, from many perspectives, and of some real efforts
at law reform. Many sought to reduce the common law to good order, or to
replace it entirely. 51
Cowell's 1651 edition can be counted among the efforts to support and
strengthen the common law. In a new preface, the anonymous translator,
one 'W.G.', proclaimed Cowell a good 'Commonwealth's man' and praised
his use of 'so choice a method of our English laws'. 52 'W.G.' exposed his own
common law sympathies occasionally in the text, for example, by disparaging
Tribonianus [Justinian's compiler] in that long and wearisome work of his
in digesting the law'. 53 The suspicion remains, however, that for readers in
the 1650s, as in 1605, Cowell was 'not one of us' and, largely because of
who he was, his Institutes seemed the work of an outsider looking in on the
common law. By the time this English translation appeared, Cowell's work
competed with the massive volumes of Coke's Institutes and two versions of
the introductory survey by Henry Finch. Both authors had better claim to
represent in their works the structure of the common law as seen from within.
Cowell had, after all, earned his place in common law lore. Edward Coke,
leader of the common lawyers, seems never to have forgiven Cowell for
repeating in his law dictionary what Hotman had written about Littleton.
Coke himself repeated and rebutted Hotman's statement in the preface to
a volume of his Reports in 1614, then warned that it was a 'desperate and
dangerous matter for civilians and canonists ... to write either of the common
laws of England which they profess not, or against them which they know
not'. 54 Common lawyers in general, it was said, took offence at Cowell's
Interpreter on two counts, first 'that a civilian should walk in a profession
several to themselves; secondly that he should pluck up the pales of the hard
terms wherewith it was enclosed, and lay it open and obvious to common
capacities'. 55 It may well be that Coke himself had it in mind to redress any
50
An Act for turning the Books of the Law, and all Proces and Proceedings in Courts of Justice, into
English (22 November 1650), Acts and Ordinances of the Interregnum, 1642-1660, C.H. Firth and
R.S. Rait, ed. (1911), ii, 455; Coquillette, 'Legal Ideology and Incorporation', 73, n. 376 and Civilian
Writers, 82, n. 376.
51
D. Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970), 77-78,
87-88, 104, 107, 119-20; S.E. Prall, The Agitation for Law Reform during the Puritan Revolution,
1640-1660 (The Hague, 1966), 66, 71, 90-93.
52
W.G., Preface to J. Cowell, The Institutes of the Lawes of England (1651), sig. A2v.
53
Ibid., 1.10.3, 20. The Latin original had Tribonianus longo illo iuris digerendi opere fatigatus,
Cowell, Institutiones, 1.10.2, 19.
54
Coke, Preface to The Tenth Part of the Reports, xxix-xxx.
55 T. Fuller, The History of the Worthies of England, P.A. Nuttall, ed. (1840), i, 420 (1st ed. 1662);
Chrimes, 'Constitutional Ideas of Dr. John Cowell', 465-66.