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

72 Legal History in the Making
lingering effect of Cowell's earlier trespass onto his turf when he chose the
overall title, The Institutes of the Lawes of England, for the four separate (and
very differently organized) treatises that he began to publish in 1628.
Ironically the tribal animosity of the common lawyers toward Cowell and
what he represented, while it did reduce the influence of his Institutiones, did
not stop the common lawyers from adopting his law dictionary as their own.
The Interpreter remained quite popular through several editions between 1637
and 1727. 56 In part, this was because it had very little competition. Cowell's
was the most comprehensive and scholarly dictionary of English legal terms
before Thomas Blount's Nomolexicon of 1670. 57 Common law lexicographers
after Cowell borrowed his definitions freely, and some of these, such as his
'absolutist' formulation of the term 'property', eventually became common
law orthodoxy. 58 A good bit of civilian thinking seeped in by such means. The
chief value of the Institutiones, on the other hand, was its framework, and in
this regard Cowell, despite all his citations to Bracton, was too faithful to his
Roman model. The common lawyers saw much in it that they recognized, but
they could not accept Justinian as their own.
Even so, it is fitting that the first author to repeat Bracton's attempt to
put the whole of English common law into a complete, systematic structure
would rely so heavily on Bracton and turn directly to the same model the
thirteenth-century writer used, the Institutes of Justinian. In the three centuries
between Bracton's last imitators and Cowell's Institutiones, common lawyers
did not stop using the Roman categories through which Glanvill and Bracton
had made sense of English practice. 59 They did, however, forsake the treatise
tradition in favour of forms of legal writing that merely supplemented their
primary reliance on an oral tradition to preserve and transmit legal knowledge.
In the sixteenth century, that oral tradition grew progressively more difficult
to maintain, and at the same time common lawyers made increasing use of the
terminology of Justinian's Institutes. Many called for what might be termed
a 'new Bracton', a treatise explaining how the whole of English law fitted
together. Cowell gave a civilian's response; he injected the original structure
of the Institutes once again into the stream of common law discourse, and
thereby brought common law and civilian understanding of that structure into
direct and fruitful juxtaposition.
56 Coquillette, 'Legal Ideology and Incorporation', 76 and n. 400 and Civilian Writers, 84 and n.
400.
57 D.S. Bland, 'Some Notes on the Evolution of the Legal Dictionary', Jour. Leg. Hist., i (1980),
76-78.
58 Ibid., 76-77; G.E. Aylmer, 'The Meaning and Definition of "Property" in Seventeenth-Century
England', Past and Present, Ixxxvi (1980), 97.
59 D.J. Seipp, 'Roman Legal Categories in the Early Common Law', Legal Record and Historical
Reality, T.G. Watkin, ed. (London and Ronceverte, 1989), 9-36.