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Dr. Cowell*

Published online by Cambridge University Press:  16 January 2009

Jocelyn Simon
Jocelyn Simon
Affiliation:
President, Probate, Divorce and Admiralty Division, High Court of Justice. Graduate and Honorary Fellow of Trinity Hall, Cambridge.
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Extract

The beginning of the sixteenth century saw a grave constitutional conflict, ending in a revolution—a conflict and revolution in which lawyers became principal actors. “In the hands of Coke the Common Law forged the axe which beheaded Charles I.” Dr. Cowell, Master of Trinity Hall from 1598 to 1611, played a leading part in that conflict—though on the losing side.

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Articles
Information
The Cambridge Law Journal , Volume 26 , Issue 2 , November 1968 , pp. 260 - 272
Copyright
Copyright © Cambridge Law Journal and Contributors 1968

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References

1 Potter, Harold, An Historical Introduction to English Law and its Institutions, 2nd ed. (London, 1943), p. 39.Google Scholar

2 For the events 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 Anthony 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 Chrimes, S. B. in (1949) 64Google ScholarE.H.R. 461; though there are predictably hostile references to him in the “Whig” historians such as Hallam (Constitutional Hist., 8th ed., i, 325) and S. R. Gardiner (Hist. of Eng., ii, 66). The ideological background is to be found in Kantorowicz, H. E., The King's Two Bodies (Princeton, 1957Google Scholar), a work of prodigious and fascinating learning; Allen, J. W., A History of Political Thought in the 16th Century (London, 1928)Google Scholar; and Figgis, J. N., The Divine Right of Kings (Cambridge, 2nd ed., 1914Google Scholar).

3 Babbage, S. B., Puritanism and Richard Bancroft (London, 1952), passim, esp. p. 42Google Scholar, and Thomas Fuller, Worthies (1662), p. 112.

4 Malden, H. E., Trinity Hall (London, 1902), pp. 13, 14Google Scholar. The dearth was mainly due to the plague.

5 Warren's Book, ed. Dale, A. W. W. (Cambridge, 1911), p. 1Google Scholar.

6 Malden, op. cit., p. 16.

7 See Warren's Book, passim, esp. Chap. VIII.

8 The expression is that of Mr. D. E. C. Yale, of Christ's College, Cambridge, in a personal letter to me.

9 Malden, op. cit., pp. 103–106; Senior, W., Doctors' Commons and the Old Court of Admiralty (London, 1902), pp. 35–94.Google Scholar

10 Senior, op. cit., p. 70.

11 Malden, op. cit., p. 104.

12 Senior, op. cit., p. 3.

13 Cit. Maitland, , English Law and the Renaissance (Cambridge, 1901), p. 87.Google Scholar

14 Cambridge, 1901.

15 Maitland, op. cit., passim; see also Starkey, Dialogue between Pole and Lupset (E.E.T.S., 1878) passim.

16 J. Bass Mullinger, The University of Cambridge (Cambridge, 1884), ii, p. 52.

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

18 Maitland, op. cit., p. 51, who, however, gives other reasons than those which follow in the text.

19 Allen, Anthony, loc. cit.Google Scholar; Fuller, loc. cit.; D.N.B., loc. cit.

20 Cit. Neale, J. E., Queen Elizabeth and her Parliaments, 1584—1601 (London, 1957), p. 355.Google Scholar

21 Babbage, op. cit., p. 29 (“Queen Elizabeth saw that the Marprelate writings threatened not only the government of the Church, but her own prerogative”).

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

23 A Counterblaste 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 (London, 1816), p. 115.

25 Ed. A. L. Lincoln and R. L. McEwen (London, 1960).

26 “The First Edinburgh Reviewers” in Collected Works, ed. Forrest Morgan (Hartford, Conn., 1891), Vol. 1, p. 7.

27 The Collected Works of Walter Bagehot, ed. John-Stevas, Norman St., Vol. IV (London, 1968), pp. 336Google Scholar (“the President is unequal to the situation in which he is placed. He has received the training of a rural attorney, and a fortuitous concurrence of electioneering elements have placed him at the head of a nation”), 337 (“roi fainéant”), 341 (“weak man”); also 380, 396. But cf. Bagehot's tribute after the assassination, ibid., pp. 407–410.

28 Lord Eldon's Anecdote Book, p. 20.

29 Holdsworth, W. S., A History of English Law, ii (3rd ed., London, 1923), p. 476.Google Scholar 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, Commentaries, iv, 325–329.Google Scholar

31 Holdsworth, op. cit., i (7th ed., London, 1956), pp. 609, 610.

32 Burrows, Greenwood and Penry were actually executed, and Cartwright imprisoned, on refusing to take the ex officio oath before the High Commission. Morrice, Attorney of the Court of Wards, described it in the Parliament of 1593 as “an ungodly and intolerable inquisition”: see Babbage, op. cit., p. 38. For the nature of proceedings under the oath ex officio, see Tanner, J. R., Constitutional Documents of the Reign of James I 1603–1625 (Cambridge, 1920), pp. 164–167.Google Scholar

33 Cited Tanner, op. cit., p. 168. For Whitgift's reply, see ibid., pp. 169–172.

34 Babbage, op. cit., p. 98, citing Usher, R. G., Reconstruction, vol. I, p. 345.Google Scholar

35 3 Co.Rep. f. 1.

36 Willson, D. Harris, King James VI and I (London, 1956), p. 258Google Scholar; Holdsworth, op. cit., i, 610.

37 D. 1. 4. 1 (“Quod principi placet, legis habet vigorem”: Ulpian).

38 Bracton f. 5b (ed. Woodbine II, p. 33).

39 I have stated the ideological positions simplified, as they crystallised at the time. In fact, neither literary source gave real foundation to the extremism for which it was relied on. On the one hand, the actual words of the Digest were “also (et) what pleases the Prince has the force of law,” implying that there were other modes of legislating. (But the passage was almost always cited without 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 merely delegated by the Quirites to the Prince, could be recalled (i.e., as concessio rather than translatio: 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. Maitland, 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 form what would soon be called the ‘Prerogative,’ that is, more or less undefined rights, along with clearly defined ones, which were not subjected to the customary Positive Law”: Kantorowicz, op. cit., p. 149 (the whole of his chapter on Bracton (IV. 3), esp. pp. 143–169, is an expatiation of this point). Nevertheless, “the importance of Bracton's constitutional qualification of the dangerous word placuit cannot be minimised…. The king'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 king's power to legislate derived from the Law itself, more precisely, from the lex regia which made the king a king”: Kantorowicz, op. cit., pp. 152, 154, 155.

40 J. R. Tanner, op. cit., p. 6.

41 Cambridge, 1607. There are later editions, censored of objectionable matter.

42 See Preface “To the Readers,” p. 3.

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

44 Coke, “Introductory Letter” to Part 10 of the Reports.

45 Holdsworth, op. cit., v (3rd ed., 1922–23), p. 432. But Chrimes, op. cit., p. 465, says that “there appears to be no evidence that [Coke] played any part in the episode.”

46 Hallam, 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 partly also to its general usefulness—“many slighted his Book who used it; it being questionable whether it gave more information or offence”: Fuller, loc. cit. See Chrimes, op. cit., p. 465 f.

47 Tanner, op. cit., p. 14. Chrimes, op. cit., pp. 466–474, gives a full account of the parliamentary proceedings, but questions the picturesque and oft-repeated story that the book was burnt by the common hangman. Certainly, the Middle Temple Library has a copy of the first edition which I have used.

48 Allen, loc. cit.

49 Warren's Book, p. 276.

50 Bass Mullinger, op. cit., ii, pp. 516, 517.

51 The most useful edition is that of London, 1787, by Sir John Hawkins, which has an introductory biography of the author. The best English translation is that of R[obert] C[odrington] (1602–1665) of 1662.

52 Holdsworth, op. cit., i, 321–322; Cowell, Interpreter, s.v. billa vera; Blackstone, op. cit., iv, 305, 306.

53 Bass Mullinger, op. cit., p. 351; and see the glossary to Ignoramus in ed. Hawkins, cit.

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

55 Harris Willson, op. cit., p. 291.

56 See The Three Parnassus Plays, ed. Leishman, J. B. (London, 1949), Intro, pp. 61–66.Google Scholar

57 Holdsworth, op. cit., i, pp. 165–176, esp. p. 170: see also Club Law (an anonymous comedy acted in Clare Hall about 1599–1600), ed. Smith, G. C. Moore (Cambridge, 1907)Google Scholar, Intro., passim.

58 Aubrey's Brief Lives, ed. Oliver, Lawson Dick, Peregrine Books, 1962, p. 163.Google Scholar

59 Cited Bowen, Catherine Drinker, The Lion and the Throne (London, 1957), p. 309.Google Scholar

60 Blackstone, op. cit., i, p. 445.

61 , Maitland, Constitutional History of England (Cambridge, 1908), p. 263Google Scholar (“There can, I think, be little doubt that the Star Chamber was useful and was felt to be useful…. But that it was a tyrannical court, that it became more and more tyrannical, and under Charles I was guilty of great infamies is still more indubitable. It was a court of politicians enforcing a policy, not a court of judges administering the law.”)

62 Holdsworth, op. cit., i, 619–621.

63 Holdsworth, op. cit., i, 459–465; Maitland, Const. Hist., p. 270. As late as 1690 there was a Bill 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 The actual debate on Clause 22 is reported at Parliamentary Debates, vol. 216 (1873), cols. 1797–1801. The Bill originated in the House of Lords and there was no Commons debate on “clause stand part.”

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