dr. cowell

Editorial Committee of the Cambridge Law Journal

Dr. CowellAuthor(s): Jocelyn SimonSource: The Cambridge Law Journal, Vol. 26, No. 2 (Nov., 1968), pp. 260-272Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505244 .

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Cambrtdgc Law Joumi, 26 (2), November 1968, pp. 26z}272 Printed {n Grcat Britafn

DR. C:OWELL *

THE RT. HON. SIR JOCELYN SIMON t

THE beginning of the sixteenth century saw a grave constitutional conflict, ending in a revolution a conflict and revoluwcion in which lawyers beame principal actors. " In the hands of Coke the Common Law forged the axe which beheaded Charles 1." 1 Dr. Cowell, Master of Trinity Hall from 1598 to 1611, played a leading part in that conflict-though on the losing side.2

John Cowell was born at Ernsborough in Devon in 1554. He was educated at Eton College and King's College, Cambridge. He seems to have come early under the notice and patronage of Richard Ban- croft. Bancroft was an active supporter of Archbishop Whitgift, Queen Elizabeth's " little black husband," in his attempt to produce order in the Church of England and in particular to curb the activities of the Puritans, who were agtating for a presbyterian form of church government. Bancroft became Bishop of London in lS97; and, Archbishop Whitgift's powers failing, became the most active force in the Church.3 He succeeded Whitpft as Archbishop in 16()4. As Cowell's patron, Bancroft seems to have advised him to devote himself to civil law at Cambridge, where he soon distinguished himself,

* This article is the rescension of an address Dven to the Trinity Hall Law Societzr on 2 February 1968. The Editor o£ the Cambridge Law Journal has an odd prejudice against printing the spoken word; and although I have reluctantly deferred to this, I fear that the finishing school may not have altogether obliterated the low-born origin. tI am confident that the reader will appreciate how greatly he is indebted to the Editor for prearailing upon the President, who is as patient as he is learned, to turn an interesting address into this admirable article.-Ed.]

t President, Probate, Divorce and Admiralty Division, High Court of Justice. Graduate and Honorary Fellow of Tnnity Hall, Cambridge. Harold Potter, An Histoncal Inlroduchon to English Law and its Institutions, 2nd ed. (London, 1943), p. 39.

2 For the efirents of Cowell's life I have relied on the article on him in the D.N.B. (by S. L. Lee) and a short manuscript biography of him by Ant}ony Allen, an 18th century fellow of King's College, Cambridge, of which Dr. A. N. L. Munby, Librarian of the College, kindly provided me with a photocopy. The only balanced study of his ideas known to me is " The Constitutional Ideas of Dr. John Cowell " by Professor S. B. Chrimes in (1949) 64 E.H.R. 461 * tbough there are predictably hostile references to him in the " Whig " historians such as Hallam (Constitutionol Hisf., 8th ed., i, 32S) and S. R. Gardiner (Hisf. of Eng., ii, 66). The ideological background is to be found in H. E. Kantorowocz, The King's Two Bodies (Princeton, 1957), a work of prodigious and fascinating learning; J. W. Allen, A History of Political Thought in the 16th Century (London, 1928); and J. N. Figgs, The Divine Right of Kings (Cambridge, 2nd ed., l9t4).

s S. B. Babbage, Puntanism and Rtchard Bancroft (London, 1952), passim, esp. p. 42, and Thomas Fuller, Worthies (1662), p. 112.

260



Dr. C,vwel! 261 C.L.J.

proceeding LL.D. and becong Cl member of the College of Civil Lawyers at Doctors' Commons in 1584. He became Regius Professor of Civil Law at Cambridge in 1594 and Master of Trinity Hall in 1598.

Trinity Hall was founded in 1350 by Bishop Bateman s})ecifically for the study of canon and civil law. The Bishop was looking for a source of learned clergy and lawyers for the government of his considerable diocese of Norwich.4 He lntended a Mastu, twenty FelIows and some Scholars; though, owing to his premature death at Avignon in 1355, he left what was thought to be sufficient only for -the main- tenance of a Master, three fellowships and two scholarships.5 Of the twenty fellowships oripnally envisaged, seven were to be for canonists and ten at least for civilians.6 Subsequent benefactions inceased the number of fellowships and the proporbon between canon and civil Iasyers varied from time to timgenerally according to the respective prestige of the two studies.t Tnnity Hall was " a sort of civil 1W magnet (or ' brain drain ') within tbe University." 8

The main cause of this was no doubt the close connection between Trinity Hall and Doctors' Commcans. As early as the beErinning of the sixteenth century the ecclesiastical lawyers determined to club together under the presidency of the Dean of the Arches (the principal appellate judge of the Province of Canterbury) to live after the manner of a college or one of the Inns of Court or Chancery.9 Many of them were graduates of Trinity Hall. But there were civil lawyers in London as well, also often graduates of the College. Wtheir le,;al and forensic training was useal in the Admiralty courts and in t;he various other courts-such as Star Chamber and the Court of Requests where the civil law was administered. They were also widely used in diplomacy.l° In 1567 Henry Harvey was fMaster of Trinity Hall, Dean of the Arches and Vicar General of the province of Canterbut. He was also President of the society of ecclesiastical lawyers to which I have just referred. He now founded Doctors' Commons near St. Paul's, there bnnpg together both the civil and canon lawyers. They lived a collegiate life and also carried on their business there. The Court of the Arches, the Prerogative Court of Canterbury, the Court of the Bishop of London and the ,Gdmiralty

4 H. E. Malden, Trinity Hall (London, 1902), pp. 13, t4. The dearth was mainly due to the plague.

5 Warren's Book, ed. A. W. W. DaIe (Cambridge, 1911), p. 1. 6 Malden, op. cif., p. 16. 7 See WaP7en's Book, pRssim, esp. Chap. VIlI. 8 The expression is at of Mr. D. E. C. Yale, of Clmst's CoIlege, Cambndge,

in a personal letter to me. 9 Malden, op. cit., pp. 103-106; W. Senior, Doctors Commons and the Old Court

of Admiralty (London, l90V, pp- 3>94- Senior, op- cit., p. 70



262 The Cambridge law Journal [1968J

Court (except for cnminal cases) sat there. The Dean of the Arches

was always President of Doctors' Commons; but it was the Master

and Fellows of Trinity Hall who, even when the Master was not Dean

(which he often was), had control over the buildings and apportioned

chambers there.l1 The coon laucyers of the Inns of Court regarded

this rival society with no enthusiasm. The formal study of the Roman (or civil) law in this country of

course ante-dates Bishop Bateman's foundation of 1350. lt was

studied abroad from the end of the eleventh century, particularly in

Italy. It was taught in England by Master Vacarius about the middle

of the twelfth century; though King Stephen thought it expedient

to suppress anything so outlandish.l2 But the Roman code had a

completeness, a logical cohesion and a subtlety which was lacking in

the codes of law which had developed in the barbarian kingdoms of

the West and their successors. As its prestige increased, the civil

lawyers assumed a lofty attitudc towards such native systems, xvhich

rnust have been irritating to their practitioners. " Non lex, sed faex "

xvas how one civilian described the Lombard code.l3 (Four-letter

words were evidently permissible- at least if they were couched, as

Gibbon was later to say, in the decent obscurity of a learned

language.) Such was the admiration in which the civil law came to

be held that there were several countries in which it was receKived in

supersession of the native system. So it was in Scotland, for example.

So it might have been, at one time, in this country. But, as Maitland

showed in his famous Rede Lecture, English Law and the Renais-

sconce,l4 the common law proved too tough a rival. But here was

anotber strand in the rope on which common and civil lawyers were

tugng in contention. At the beginning of the sixteenth century the High Renaissance

had reached this country. Part of its ideology lay in reverence for

antique models. The civil law was held in high esteem: and it was

at this time, if ever, that it might have suwrseded OU1 native system.l5

At any rate, it was in 1540 that King Henry VIII founde-d the pro-

fessorship of civil law at Cambridge 16 partly, no doubt, to

demonstrate his displeasure at the canonists, many of whom had

proved less than co-operative in matters of divorce.l7 But this was

the height of the tide; and as the century procteded the clvil law lost

11 Malden, Op. Cit., p. 104,

12 Senior. Op Cit., P- 3 13 Cit. Maitland, English Law and tfte Renaissance (Cambridge, 1901), p. 87.

14 Cambndge, 1901. 15 Maitland, op. cit., passim; see also Starkey, Dialogue between Pole ard Lupset

(E.E.T.S., 1878) pas im.

6 J, Bass Mullinger, The CJniverszty ot Cambridge (Cambndge, 1884), ii, p. 52.

I7 See, e.g., G. de C. Parmiter, The King's Great Matter (London, 1967), p. 121.



Dr. (towell ='t3 C.L.J

much of its prestige.l8 This was partly, I think, because the common law had survived as the national system; partly because of the increasing spint of nationalism during the century. At any rate, by 1594, when Dr. Cowell became Regius Professor, the study of civil law was at a lowish ebb. Cowell's vast learning, particulclrly in -the civil law but not confined to it, }liS energy, his high position in the University (he was Vice"ChancelIor in 1603 and 1604), and no doubt also his connection with Bancroft, reversed the trend. ia 1605 he published a work in Latin entitled Institutiones Juris A nglicanse. This was an attempt to expound English law according to tbe methods and system of Justinian's Institutes. Not surprisingly, it was un successful it was rather like crushing an Ugly Sister's foot, bunions and all, into Cinderella's glass slipper. More seriously for Cowell, it took hm into a field which Sir lidward Coke, lately a Law Officer and formerly Speaker of the House of Commons and now Cliief Justice of the Common Pleas, regarded as peculiarly his own; and Coke did not take kindly to rivals. Thenceforward, in his amiable and elegant way, Coke referred to the Master of Trinity Hall as '; Dr. Cowheel." '9

Coke had by now been drawn into the constitutional conflict which had been developing since the accession of James I and was going to continue until the restoration of Charles II. All the elements of conflict had really been present during the reign of Queen Elizae beth: on the one side, the royal claim to exercise prerogative powers (' the chiefest flower in her garland and the principal and head pearl in her crown and diadem," as Lord Keeper Egerton c.llled it20), to raise money by subsidies and to grant monopolies; on the other side, the Puritan movement, strongly entrenched in the House of Commons, opposing the royal claims and agitating for a dedica.ted preachlng mInistry and a presbyterian form of church government. Though she may not herself have said it explicitly, "bTo Bishop, no Queen" was very much to the Quten's mind.2l Neverl:heless, the conflict did not develop dangerously at that time. I think there were several reasons for this. First, so long as there was a foreign danger from Spain, it was hardly in the interests of the Puritans to uncler- mine fatally the position of the Queen. Secondly, there ̂ vas always the danger of a disputed succession, wIth its perils of civil wars to restraxn extreme attitudes (folk had only to look across the Channel

s Maitland, op. cit., p. 51, who, how<ver, gives other reasons than those which follow in the text.

19 Anthony Allen, loc. cit.; Fuller, loc. cit.; D.N.B., loc. cit. 20 Cit. J. E. Neale, Queen F,Zizabeth and her Parliaments, 1584-1601 (Lndon, 1'3S7),

p. 355. 21 Babbage, Op. cir., p. 29 (ss Queen I.lizabeth saw that the Marprelate writings

threatened not only the.government of the Church, but her owrn prerogative").



264 The Cambridge law Zournal [1968]

for a wammg). Thirdly, the vigour of Archbishop Whitgift's repres-

sive measures had tempormly broken the spirit and cohesion of the

Pllritan movement. But lastly, and I think most potent, there was

the tremendous prestige of the old Queen. In her veZry last Parlia-

ment there was diflziculty about a matter which was to cause so much

dispute in the following reign monopolies. The Commons made

trouble. The Queen sent for tlhem and gave them a dressing-down.

" My heart," she said, " was never set upon any worldly goods, but

only for my subjects' good. What you do bestow on me, I will not

hoard up, but receive it to bestow on you again." And then at the

end of it all, she said, " I pray you, Mr. Comptroller, Mr. Secretary,

and you of my Council, that before these gentlemen go to their

countries, yoll bring them aSl to kiss my hand." 22 It must have been

iltesistible. James I had no such advantages. Who would have been silenced

by bemg allowed to kiss his hand? The succession was secured. EIe

was bent on peaalmost at any price. There was little now,

therefore, to restrain the Puritans and their allies in the Commons.

On the contrary, there was much to galvanise them. James I was

not a bad man he anticipated Canning in his views on toleration for

Roman Catholics (and this m spite of an attempt to blow him llp),

and Mr. Kenneth Robinson in his views on smoking.23 Unfortunately,

he could not keep his mouth shut: as Isaac lD'Israeli wrote, " In all

hIs mysterious flights into the nature of the prerogative royal, James

only maintained what Elizabeth had, as jealously, but more ener-

getically exercised." 24 Moreover, theology had a fatal fascination for

him. The constitutional conflict therefore centred on religion, with

the Puntans and their allIes in the Commons ne longer under the

inhibitions of the previous reign. Why, then, were the lawyers drawn in? To introduce the expla-

nation of this I propose to quote from "Lord Eldon's Anecdote

Book." 25 That requires perhaps a word of apology; for this is what

Walter Bagehot, in his sprightly way, wrote of Eldon:

. . . it is the most difficult thing in the world to believe that there ever was such a man; it only shows how intense historical evidence is, that no one really doubts it. He believed m every- thing which it is impossible to believe in, in the danger of Parliamentary Reform [as to which, however, Bagehot himself had considerable reservations], the danger of Catholic Pnanci- pation, the danger of alterlng the Court of Chancery, the danger

22 Cit. J. E. Neale, op. cit., p. 391.

23 A Counterbisste to Tobacco, 1604 (". . . they were making a sooty kitchen of

their inward parts "). 24 Isaac D'Israeli, An Enquiry into the Political and Literary Character of James I

(lvondon, 1816), p. 115. 25 Ed. A. L. Linxln and R. L. McEwen (London, 190).



C.L.J. Dr. CoweXl a,s

of altering the courts of law, the danger of abolishing capital punishment for trivial thefts, the danger of making land-owners pay their debts, the danger of making anything more, the danger of making anything less.26

Although it must be borne in D:iind that Bagehot's judEment on lawyers was not peccable (he had a very low opinion of an Amencan attorney called Abraham LincoIn 27), it is extraor,Jinary to thinlc that a creature Bagehot found so shlpid and despicable could have written anything so delighfful as some of the passages in the Anecdote Book. Eldon thus describes a Cabmet meeting attended by a redoubtable old sailor, Sir Thomas Trowbndge, when there was a tendency to mutiny in the Fleet. Trowbridge was asked his opiniszn what was best to be done.

He said let me hang a hundred Lawyers, and we shall hear no more of the business. I asked [writes Eldon], what he could mean-what were these People that he called Lawaers. He replied, Fellows that can read and te. They are the Fellows, that I call Lawyers, and make the whole of the Mischief.

He then proceeded to complain of another great Evil When we condemn Fellows, he said, for Mutiny, then there is always ;3n appeal to the Judges to know whether we have proceeded rigIlt, and they are sure to say we were wrong. I asked hBn [Eldon continues], if he thought the Judges had such singular Notions of what constituted Mutiny, what he thought Mutiny. Why, says he, whenever I see a Fellow look, as if he was thinking, I say that's Mutiny.28

Lord Eldon and the old sailor touched the heart of the matter. Lawyers are feIlows who can read and write; and they not only look as if they think, they actually do so. Nothing can be more dangerous. SmaIl wonder that lawyers were strorlgly entrenched in the Jacobean House of Commons and that the House steadily beca:me more mutinous. They were mostly co¢lmon lawyers; and I have a]ready indicated the professional jealousy between the common la^;vyers and the avilians. It must not be for>otten, too, that the leader of the common lawyers was Coke, Chief Justice of the Common Pleas and later of the King's Bench. The Chief Justices-indeed all the Judges Wenved a substantial part of their emoluments from fee, paid by the litigants before them; if litigation went elsewhere their enloluments

26 "The First Edinburgh Reviewers" ill Collected Works, ed. Forrest MorEan (Hartford, Conn., 1891), Vol. 1, p. 7.

27 The Collected Works of Walter Bagekot, i. Norman St. Joi-Stevas, Vol. 1V (London, 1968), pp. 336 (" the President is unequal to the situation in which he is placed. He has received the training of a rural attorney, and . fortuitous concurrence of electioneering elements have placed him at the head of a nation "), 337 (" roi fainEant "), 341 (" weak man "); also 380, 396. But cf. Bageh()t's tribute after the assassination, ibid., pp. 407410.

28 Lord Eldon's Anecdote Book, pb 20.



[19681 266 The Cambri;dge Xnv Journal

fell; and Coke was notorious for combining his vast learning with

attachment to mundane rewards. One area of contention between the common law courts and the

ecclesiastical courts was jurisdiction over titlies.29 The ecclesiastical laeers claimed that a man who did not pay his due meed of bthe

to the local parson was imperilling his immortal soul; and that was

clearly a matter for the ecclesiastical courts, which exercised their

jurisdiction pro salute animae. The common lauyer, on the other

hand, saw the tithe as an incident of property, and claimed that tithe

questions fell within the jurisdiction of the common law courts.

More fundamental still, oddly enough, was a matter of procedure.

This was the oath ex officio. The courts outside the common law

system claimed the right to put to a witness any question they might

deem reIevant, which the party then had to answer on oath. The

common lanv, on the other hand, was profoundly attached to the

doctnne that a man was entitled without penalty to remain silent

under questioning which migl}t inculpate himthough it is true that

if he were so unwise as to remain silent on arraignment he was 1iable

to be crushed to death by heavy weights (the peine forte et dure).30

The oath ex OgCIO was pnicularly irksome in the Aun of High

Commission.3l A man could be thus examined as to his real religious

convictions.32 Even Burghley had his doubts. " According to my

simple judgement," he wrote to Whitgift, " this kind of process is too

much savouring of the Romish Inquisltion; and is rather a device to

seek for offenders than to reform any." 33 The procedure became

especiaIly dangerous after Dr. Cowell and olle or two others in 1604

E?roduced a body of canons for Archbishop Bancroft.34 If one of e

puritan clergy, examlned ex officio, refused conscientiously to suS

scribe to this body of canons he could be deprived of his benefice.

So, in addition to ordinary professional jealousy between common

lawyers and civilians, and a conflict of jurisdiction over the important

matter of tithes, there was the rule of procedure, the oath ex oFao, which was profoundly repugnant to the common lawyers, who held

29 W. S. Holdsworth, A Ilistory oj English Law, ii (3rd ed., London, 1923), p. 476.

The matter was not concluded by the statutes cited by Holdsworth: see the

quotation from Aubrey, p. 271, below. 30 Termes de la Ley, s.v. paine fort & dure; Blackstone, CommeXtsries, iv, 325-329.

31 Holdsworth, Op. Cit., i (7th ed., London, 1956), pp. 609, 610.

32 Burrows, Greenwood and Penry were actually executed, and Cartwright imS

prisoned, on refusing to take the ex officio oath before the High Commission.

Morrice, Attorney of the Court of Wards, descrlbed it in the Parliament of 1593

as " an ungodly and intolerable inquisition ": see Babbage, op. cit., p. 38. For

the nature of proceedings under 1he oath ex offiao, see J. R. Tanner, Constiou-

tional Documents of the Reign of James l 1603-162S (Cambridge, 1920), pp. 164

167. 33 Ctted Tanner, op. cit., p. 168. For Whitgift's reply, see fbid., pp. 16s172.

34 Babbage, Op. Cit., p. 98, citing R. G. Usher, Reconstruction, vol. I, p 345.



C.L.J. lUr. Cowell 257

that a witness had the right to remain silent rathu than incriminate himself.

But the conlmon lawyers had a weapon which was capable of virtually paralysing the work of the ecclesiastical courts a:nd which was indeed used for that purExose. This was the writ of Prohibition. By it the common law courts claimed to exercise control over a11 inferior courts, and in particular to prevent them acting in any way contrary to the law of the land. Hoping to free the Church courts from this control, Archbishop Bancroft in 1605 appealed to the Kirzg. He argued that the ecclesiastical oJurts were not inferior to those of common law. On his argummt al1 judicial authorit beg;3n m t:he Crown and flowed thence in two great streams, the tempctral jurisdiction to the common law courts the spiritual to the courts of ttse Church. This was an argument calculated to appeal to Kilog James. Notwithstanding that it had some foundation in his own report of Caudrey's Case,35 Coke argued uath a wealth of learning: that the writ of Prohibition was part of the common law of the land ;lnd could only be altered by Parliament.3'i Once again, the ecclesiastical lawyers appealing to the royal authority were brought face to face with the common lawyers appealing to, and entrenched in, Parlia- ment. To ordinary professional jealousy, to disputed junsdiction over tithes, to profound antagonisnl over the oath ex ogoio, there was now added a fundamental constitutional issue, namely, whether the common law courts were co-equal with or ascendant over the ecclesiastical courts.

But an even deeper ideologica]. issue emerged from the study by civilians and common Iawyers of their respective literary sources. In the Carpus Juris it was written " What pleases the Prince i:s law." 37

To which Coke replied by quoteng the famous words of Bracton, " The King is subject not to men, but to God and the Laut, because the Law makes the King." 38 There you have the coHronta.tion. ()n the one hand, law is what pleases the prince: on the other, the King is subject to the law. These proved fightlng words. They put t:he civit lawyers in the royalist camp and ranged the common lawyers against the royal pretensions.39

35 3 Co.Rep. f. 1. 36 D. Harris WGlson, Kin8 James VS and I Condon, 1956), p. 258; HoldsworF,

op. czt., i, 610. 37 D. 1. 4. 1 ('4 Qod principi placet, legis habet vigorem ": Ulpian). 38 Bracton f. 5b (ed. Woodbine II, p. 33). 39 l have suted ffie ideologil positions simplied, U they estaltised at the Xe.

In fact, neither literary source gave real foundation to the extremisrn for which it was relied on. On the one hand, the actual words of the Digest were " cllso (et) what pleases the Prince has the force of law," implying that therir were other modes of legislating. (But the passage was almost always cited withc,ut the word " et.") Indeed, the lex regia, the foundation of prerogative pretensions, could also be construed as the basis of popular sovereignty; the legislative power, being



26B The Cambridge L«v lournal rls6s]

The King, it is true, did not press his doctrine to its loScal con-

clusion, which would have been the destruction of the English parliamentary system.44 But there was one who was prepared to do so. This was Dr. Cowell. In 1607 he ptlblished a book called The Inter- preter,4l dedicated to Archbishop Bancroft. It was a law dictionary. Dr. 30hnson defined " lexicographer' as " a writer of dictionaries, a harmless drudge." But this was only his little joke. Drudge, perhaps; but harmless, no. C)nce people start defining their terms, they are liable to find that they are in disagreement about matters which they had thought to be of little moment. Certainly The Interprerer was far from harmless in the circumstances of the time. Although it was ostensibly designed to reconcile the civil and common law,42 here are

some of Cowell's definitions: KING.. . He is above the Law by his absolute power.... And though for the better and equal course in malQing laws he do admit the three estates, that is, Lords spiritual, Lords temZ poral, and the Commons unto counsel, yet this, in divers learned men's opinions, is not of constraint but of his own beniFity, or by reason of his promise made upon oath at the time of his coronation. For otherwise were he a subject after a sort, and subordinate, which may not be thought without breach of duty and loyalty. For then must we deny him to be above the law, and to have no power of dispensing with any positive law or of granting especial pnvileges and charters unto any, which lS his

only and clear right.... PARLIAMENT.... Of these two one must needs be true, that either the King is above the Parliament, that is, the positive laws of his kingdom, or else that he is not an absolute King.... And therefore though it be a merciful policy and also a politic mercy (not alterable without great peril) to make laws by the consent of the whole realm beause so no one part shall have cause to

merely delegated by the Quirites to the Prince, could be recalled (i.e., as con- cessio rather than transZatio: cf. Inst. 1, 2, 5 with C. 1, 17, 1, 7). (See Kantorowicz, op. cit., p. 103; and also, cited below, Kantorowicz on Bracton.) On the other hand, Bracton himself was profoundly influenced by Roman law (see Selected Passages from the Works of Bracton and Azo, Selden Soc., vol. viii, 1894, ed. MaitLind, Intro., passim); and " Bracton's expansion of the king's status ' under the Law ' did not abolish a status of the king also ' above the Law.' Nowhere can we deduce from Bracton's political theories an intention to abolish or even reduce those res quasi sacrae which pertained to the Crown and which were to forrn what would soon be called the ' Prerogative,' that is, more or less undeiined rights, along with clearly defined ones, which were not subjected to the cUstomanr Positive Iaw ": Kantorowicz, op. cit., p. I49 (the whole of his chapter on Bracton (IV. 3), esp. pp. 14>169, is an expatiation of this point). Neverthb less, " the importance of Bracton's constitutional qualification of thc dangerous word placuit cannot be minimised.... The kmg's ' pleasure ' is Law only in so far as it is an authoritative promulgation by the king of what the magnates declare to be ancient custom " and " the kings power to legislate denved from the Law itself, more precisely, from the lex regia which made the king a king ": Kantorowicz, op. cit., pp. 152,154, 1S5.

40 J. R. Tanner, op. at., p. 6. 41 Cambridge, 1607. There are later editions, censored of objectionable matter. 42 See Preface " To the Readers," p. 3.



C.L.J. Dr. C,vwell 2f,9

complain of a partiality, yet simply to bind the pnnce to or by these laws were repugnant to t}le nature and constitution o£ sm absolute monarchy.... PRERC)GATIVE OF THE kKING . . . is that especial power, preeminence, or privilege that; the King hath in any kind over and above other persons, and above the ordinary course of the common law, in the right of his crown.... SUBSIDY (subsidium) cometh of the French (subside), signifying a tax or tnbute assessed by Parliament and granti by the Commons to be levied of every subject, according to the value of his land or goods, . . . Some hold opinion that this subsidy is granted by the subject to the prince in recompense or con- sideration that whereas the prince of his absolute power mght make laws of himself, he doth of favour admit the consent of his subjects therein, that all things in their own confession may be done with the greater indifferency....

As if all this was not enougb to infuriate the common lawyers in and out of Parliament, Dr. Cowell had induded in T)ze Interprete1 a quotation from the French civilian, Hotman, reflecting in severe terms on Littleton's Tenuresoke's own Littleton. Cowell wrote tilat 4' Hotoman . . . thus commendeth " Littleton; but the ws)rds cited were an odd sort of commendation-" incondite, absurde er inocxn- cinne scriptum." ua Coke was the last man to stand this sort of stuff: we read in one of his prefaces to the Reports, " It is a desperate and dangerous matter for civilians and canonssts . . . to wnte either of the common law of England which they profess not, or against them which they know not." 44 Small wonder that he wt to work to sbr up the House of Commons against Cowell45 not that the Commons could have needed much stirring. They sought a conference with the Lords with a view to suppressing the book.46 King James SsIW the red light. He directed Salisbury, the Lord Treasurer, to tell the Commons that the book would be suppressed by proclamation. The Commons were so delighted that Cowell should be discountenanced that they overlookesl their dislike of governulent by proclamation. In his speech to Parliament at Whitehall on 21 A{arch 1610, the King disc:laed the

43 The Interpreter, s.v. Littleton. This passage disappeared from the later, censcxred editions.

44 Coke, " Introductory Letter *' to Part 10 of the Reporls. 45 Holdsworth, Op. Cil., V (3rd ed., 1922-23), p. 432. But Chrimes, op. at., p. 465,

says that " there appears to be no evidence that [Coke] played an) part in the episode."

4B Hs£Jam, op. cit. (new ed., 1873), i, p. 326. Their delay in proceeding against the book was, no doubt, partly due to the prorogation of Parliament, but pardy also to its general usefulnesr " many slighted his Book who used it; it being questionable whether it gave more information or offence"; Fuller, loc. cit. See Chrimes, op. cgt., p. 465 f.

C.L.J. 1O



[1968] 270 The Cambridge Law lournal

work and specifically denied that he had any wish to put the civil law in place of the conllnon law.47

Dr. Cowell did not long survive this disgrace. As the manuscript annals of an eighteenth-century antiquary of Kmg's College put it, he ' retreated to his College deceasing the eleventh day of October 1611, under the hands of the Surgeon who had cut him for the stone to which teZrrible distemper studious and consequently Sedentary Men are most subject." 48 (Such are the perils of being studious and of ixTitating radical opinion.) Dr. Cowell gave his house to the College and several books to its libra}y. He lies buried in the Col}ege chape1.49

The affair had, however, a cunous aftermath which has given a word to the English language. In 161F15 the King was prevailed on to visit Cambridgthe first royal visit for nearly half a century. There was high excitement; and special instructions were issued to the members of the University to ensure that nothing went wrong. They were to have their hair cut; and, the King's pmjudices being kno^Nn, there was a pqohibition against " taking tobacco in St. Mary's Church or in Trinity College Hall" on p of expulslon from the University.60 As was usual, the entertalnment consisted of syllogistic disputations and of plays. It is with one of the latter that I am concerned a comedy called Ignoramus, by George Ruggle (1575- 1622), a Fellow of Clare.51 The name Ignoramus was taken from the old procedure of presentment by a Grand Jury. The Grand Jury was in its mception a jury of neighbours using their local knowledge. A Bill was presented to them containing the charge. If they thought it fit to go for trial, they wrote on it " Billa vera "-" true bill." If they thought there was no case to go forward for trial they wrote uEzon it " Ignoramus," that is to say, " We know nothing about this " 52 Be civil lawyers of the University had not forgotten their resentment of the way their leader, John Cowell, had suffered at the hands of the common lawyers: the oounection between the event and the play is put beyond doubt by the fact that most of the technical phrases of the common law used in the play were those explained in Cowell's

*t Tanner, op. cit., p. 14. Chrimes, op. cit., pp. 466474, gives a full account of the parliamentary proceedings, but questions the picturesque and oft-repeated story that the book was burIlt by the common hangman. Certainly, the Middle Temple Library has a copy of the first edition which I have used.

's Allen, loc. cit. 49 Wsen's Book, p. 276. s° Bass Mullinger, op. cit., ii? pp. 516, S17. 51 The most useful edition is that of London, 9787, by Sir John Hawkins, which

has an introductorsr biography of the author. lEe best English translation is that of REobert3 Ctodrington] (1602-1665) of 1662.

52 Holdsworth, op. at., i, 321-322; Cowell, Interpreter, s.v. billa wera: Blackstone, op. at., is, 30S, 306.



C.L.J Dr. Cowell 271

Interpreter.53 Ignc)ramus, the eponymous hero of the oomedy, was a

common lawyer of gross pomposity and ignorance. lshe barbarous

dog-Latin of the common law, a matter of contempt to the elegant

civilians, was particularly mocked "quota est clocka mac?" he

asks, for example.54

Ruggle's pIay was an enormous success with the King, who was

very ready to have the common lawyers ridiculed: he actually came

back to see a second performance.55 It was printed ansl repted

and the word " Ignoramus" passed into the language. The onginal

object of the satire was Henry Brackyn, Recorder of Cambridge,56

who had made himself particularly objeciionable to the University by

taking the side of the civic authorities in the recurrent townand-

gown squabbles and scufRes; he was, of course, a common lawyer,

whereas the Vice-Chancellorws court followed civil law 57 But a

bigger quarry was in the sights. This is what Job Aubrey writes:

" When the Play called Ignoramus (made by one Ruggles of Clare-

hall) was acted with great applause before King Jamess they dressed

Sir Ignoramus lilce Chief Justice Coke and cutt his beard like him and

feigned his voyce. This drollep did sett all the lawyers against the

Clergie, and shortly upon this Mr. Selden wrote of tythes not jure

divino." 58 The shaft, indeed, went home: " The Lord Cheife

Justice," urote Chamberlain, " both openly at the King's Bencb and

divers other places hath galled and glaunced at schollers with much

bitterness." 59

But it was the common lawyers of the e who had the last

laughs, as the axe fell successively on the necks of Strafford, Laud

and King Charles. It remains to ask why this was so. Foremost, I

think, it was beause the common law was the cause of the House of

Commons. Secondly, there must have been something about the

common law which was peculiarly mdigenous, and appealing to the

common people. Blackstone was not entirely being ironical when he

wrote of the husband's power of correcting his wife by physicS

chastisement: " In the politer reign of Charles the second, this power

of correction began to be doubted.... Yet the lower rank of people,

53 Bass Mullinger, op. at., p. 351; and sce the glossary to Ignoramas m cd.

Hawkins, cit. 54 lgnoramus, Actus 1, Scena 3, ed. Hawkins at., p. 47.

55 Harris Willson, op. at., p. 291. 56 See The Three Parnussus Plays, ed. J. B. Leishman (London, 1949), Intro.

pp. 6146. S7 Holdsworth, op. cit., i, pp. 169176, csp. p. 170: sec also C}ub Law (an

anonymous comedy acted in Clarc Hall about IS99-1600), ed. G. C. Moore

Smith (Cambridge, I907), Intro., passim. S8 Aubrey's Bnef Lives, ed. Oliver Lawson Dick, Peregnne Books, 1962, p. I63.

59 Cited Gthee Aiicr kwen, Tlte Lion and the Throm Vndon, I9S7),

p. 309.



The Cambrzdge Vw Journal [lg68] 272

who were always fond of the old common law, still claim and exert their ancient pnvilege." 6§ Thirdly, the civilians became identified with, and the common lawyers were opposed to, the courts of Star Chamber and High Commission, which were generally felt by now to have become instruments of grievous oppression.6l Fourthly, the ecclesiastical courts too were unpopular: they were felt to smack somewhat of papacy; and they interfered with such popular pleasures as adultety, incest and defamation.62 Lastly, the cotnmon lawyers were fortunate enougll to fail to extirpate the Court of Chancery with its equitable doctrmes.63 Com}ng to co-exist, as they did, even if still with rivalry and some complications, equity did much to obviate the defects and malce up for the deficiencies of the common law. Complementanly they made a workable system.

So I place my last scene in 1873. The Judicature Bill is being debated.64 Mr. Speaker rises to his feet and the House falls silent. " The question is ' That Clause 22 as amended stand part of the Bill.'" Clause 22 as amended includes the provision that in a]l matters not thereinbefore mentioned, " in which there is any conflict or variance between the Rules of Equity and the Rules of Common Law with reference to the same matter, the Rules of Equity shall prevail." 65 Mr. Spker tums to ffie Goveent Vnches. " Bose in favour, say ' Aye.' " Led by the Chief Whip there is a low shout of "Aye.' The Speaker looks towards the Opposition benches. " Those against, say ' No.9 " Silence. " I think the Ayes have it? " Silence. " The Ayes have it," he declares, and calls the next clause. But although no sound of opposition could be heard inside the Chamber while the Speaker was collecting the voices against the Clause, outside m the stillness of the Division Lobby an ear delicately tunecl to extra-sensory perceZption could have heard a low rustling sound as of spillikins being disturbed. It was Sir Edward Coke turning in his grave.

60 Blackstone, Op. Cit., i, p. 445. et Maitland, Constitutional History of England (Cambridge, 1908), p. 263 (" There

can, I think, be little doubt that ffie Star Chamber was useful and was felt to be useful.... But that it was a tyrannical courtw that it became more and more tyrannicaI, and under Charles I was guilty of great infamies is still more indubit- able. It was a court of politicians enforcing a policy, not a court of judges administering ffie law.")

62 Holdsworth, Op. cit., i, 619621. B3 Holdsworth, Op. t., i, 459465; Maitland, Const. Hist., p. 270. As late as

1690 there was a BiII in Parliament to give the Courts of Common Law power to issue writs of Prohibition to prevent encroachment upon their jurisdiction, and also to restrict any Court of Equity from entertaining suits for which a proper remedy lay at Common Law: Potter, op. cit., p. 143.

64 Ne actual debate on Ause 22 is reponed at parlmmentQry Debates, vol. 216 (1873), cols. 1797-1801. The Bill onginated in the House of Lords and there was no Commons debate on " clause stand part."

05 Supreme Court of Judicature Act 1873, s. 25; now Supreme Court of Judicature (Consolidation) Act 1925, s. 44.

