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80 Legal History in the Making
crown and the jurisdiction of the courts, two years later. 96 Coke's survey of
English law was massive, about seven times the length of Finch's book. It was
'comprehensive', but in a sense of the word diametrically opposed to the one
that fits short works like Finch's Law and Wingate's Summary.
Coke was not a devotee of 'method'. In 1604, shortly before Cowell's
Institutiones appeared in print, he wrote that as for 'bringing the common
laws into a better method, I doubt very much of the fruit of that labour'. 97
When Coke himself was a student, he kept a 'commonplace' not under the
usual set of alphabetical headings, but interleaved in his copy of Littleton's
Tenures. 98 In the 1620s, he turned again to Littleton, 'the first book that
our student takes in hand', for the text on which to hang his outpourings
of common law minutiae. 99 Littleton wrote only on the subject of estates,
tenures, and other incidents of landholding, but Coke was somehow able to
fit all the rest of the common law into his Commentary. Debt and contract,
trespass and treason, murder and rape, even heresy and excommunication
all had their places in the vast gloss. One can envisage Coke, nearly eighty,
plotting ingenious word associations to bring his wide learning to bear on a
narrow text. But how would a student know to look to Littleton's chapter on
tenancy at will to learn Coke's definition of trespass? 100
Coke's Commentary on Littleton must have given students far less of a sense
that the common law had a coherent, rational structure than they would have
received by reading Littleton's Tenures alone. When (and if) students reached
the second and third volumes of his Institutes, they found Coke still using the
form of a gloss whenever possible, taking statutes as his texts, much as he had
done as a reader at the Inner Temple. His second part, proceeding statute
by statute, eluded even chronological order, and in the third, his progress
through criminal matters grew fitful after the opening chapters on treason and
the common law felonies. The last book proceeded court by court, and thus,
through his entire Institutes, Coke managed to avoid using any substantive
categories of his own for the presentation of legal knowledge. His method was
the very antithesis of 'method' as preached by Ramus and practised by Finch.
For common lawyers in the seventeenth century and afterward, Coke's
Institutes, though notoriously ill-arranged, were nevertheless indispensable.
The volumes carried the full weight of his personal authority as the preeminent
common lawyer of his day, and this more than made up for
the deficiencies in organization. Coke's Institutes perpetuated the older,
96 Coke, Preface to The First Part of the Institutes, xl; see J.H. Baker, 'Coke's Note Books and the
Sources of his Reports', Camb. Law Jour., xxx (1972), 163-64.
97 Coke, Preface to The Fourth Part of the Reports, x.
98 Baker, 'Coke's Note Books', 148. On Coke's disapproval of abridgements, see the preface to The
Fourth Part of the Reports, x-xi; Palmer's Case (1612), 10 Co. Rep. 24b, 25a; Pilfold's Case (1612), 10
Co. Rep. 115b, 117b; Portington's Case (1613), 10 Co. Rep. 35b, 41a; Coke, First Part of the Institutes,
fo. 395a.
99 Coke, Preface to The First Part of the Institutes, xl.
100 Ibid.,fos. 57a-57b.