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CONCERNING LAW REFORM

COKE AND BACON

"If I am asked a

Sir Edward Coke used to say: question of common law, I should be ashamed if I could not immediately answer it; but if I am asked a question of statute law, I should be ashamed to answer it without referring to the statute books."

If any one ever knew all about the common law, Coke was undoubtedly the man. With a constitution that was proof against illness and fatigue, with a memory that never relaxed its grasp, he gave to the study of the common law all his available time and energy from his youth until he died in extreme old age. His learning, vast but not varied, began and ended with the common law, for which he entertained feelings of reverence amounting to fanaticism. He said that there were rules, of the law for which no reason could be given; a circumstance that in his eyes clothed them with a mysterious sanction, and conferred on them an additional' value. A mere dry legist, he cared more for the six carpenters than he did for the seven sages of Greece., Possessing not the slightest tincture of general literature, scorning all foreign systems of law, as well as the philosophy of law in general, which he considered to be matters wholly irrelevant and speculative, he was perfectly at home with executory devises, contingent remainders, shifting and springing uses, and all the other technical creations of the law of tenures, which made up a great part of the common law. One could easily fancy that he lisped of these things in his cradle, and that they peopled his dreams in later life. They were to him as household words; and he knew all of their playful ways and cunning habits. Few men could say as

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much; for that kind of learning was extremely technical and difficult; and Coke's pre-eminence in this respect was universally conceded. Chance and circumstance had had much to do with the development of the law of tenures; but selfishness and perversity had operated to render it so artificial and intricate that many of its complications tasked or eluded the most highly trained intellects; a fact of which Coke at one time furnished a most striking illustration.

It is well known that Coke was consumed with ambition, and with avarice. Twice he increased his estate by rich marriages; and the emoluments derived from his practice were so great that by the time he got to be chief justice of the Court of King's Bench he was one of the largest land owners and one of the wealthiest men in England. Hoping after his downfall that through the influence of the King's favorite he might be restored to power and position, he forced his daughter to marry Sir John Villiers, the brother of the Duke of Buckingham, preparatory to which union he drew up a settlement by which he settled a large estate on the ill-assorted couple. Of course such documents were closely scrutinized; and the all-powerful and intriguing family of Buckingham must on this important occasion have had the aid of as good lawyers and conveyancers as could be found; but when, years after the death of Coke, the terms of the settlement were spelled out with the labor that is required to decipher an Assyrian tablet, it was discovered, to the surprise and admiration of lawyers. deeply versed in the technical learning of feudal tenures, that the title to the estate, after performing various unexpected and extraordinary feats, had at last vested in fee simple in the right heirs of Sir Edward Coke; where it still remains.*

*For an explanation of the method by which this was done, see 2 Wash. Real Estate, 294.

It is needless to say that Coke was not a reformer. His object was to perpetuate, and not to change. Indeed reform was not the order of the day. It is difficult for us now to picture his immediate surroundings. All the English speaking people in the world in his time did not equal the present population of the State of New York; and London, a town of the Middle Ages, dim, dingy, unlighted, uncared for, with its picturesque contrasts between royal pageantry and squalid poverty, contained at that time probably not more than 300,000 inhabitants, crowded down close to the river under the shadow of the Tower. The irregular and badly paved streets, the rows of ancient houses in every stage of decay, whose monotony was broken here and there by a church or a residence of more pretensions, presented a prospect that was not suggestive of impending change. Things were much as they were in the days of the Plantagenets; and they would probably so continue. As a lawyer, the owner of many broad acres, and with such surroundings, it was not surprising that Coke should favor the established order of things.

If we look back to the Elizabethan period we shall find that the connection then existing with antiquity was close and intimate. Whoever was educated at all could read Homer and Plato in the original, and could speak Latin, the common medium of communication between persons of cultivation all over the world. A slavish adulation of antiquity was the most prominent feature of the civilization of the age. There was a pre- 7 vailing bigotry on the subject that could only be compared with the ancestor worship of the Chinese. Pierre la Ramee, a contemporary of Coke, a scholar, a virtuous and an honorable man, was persecuted all his life, and was finally assassinated, because he ventured to dispute some of the theorems of Aristotle. Giordano Bruno, the friend of Sir Philip Sidney, who visited England when

Bacon was a student at Gray's Inn, and whom Bacon must have known, followed in the footsteps of la Ramee, and suffered a like fate. He has left on record his opinion of the course of teaching then in use in the English universities. "Rhetoric, or rather the art of declamation," he said, "is their whole study; and all the philosophy of the universities consists of a purely technical knowledge of the Organon of Aristotle; and for every violation of its rules, a fine of five shillings is imposed."'*

Outside of theological writings, where there was an occasional mention of the millenium, and outside of the writings of Bacon, there was never any expression of hope as to the future of our race; not even in the writings of Shakespeare, in which almost everything else can be found. The work of the world seemed to have been done, and Time to be leaning on his scythe. Scholastics still continued languidly their war of words. Nowhere did the spell of antiquity lie heavier upon the minds of men than in England. We have the most abundant evidence of the fact that the spoken language of the time differed only very slightly from that which we speak to-day; but the written language was commonly so affectedly archaic that if Coke or Bacon or Selden had given a written order for a dozen of eggs from a neighboring grocer's, he would have done so in language such as was used 200 years before.

Coke was a tall, fine looking, handsome man, a man of imposing aspect, strong in body, strong in mind. His form and features have been so happily preserved for us by the art of the painter, his character has been so clearly portrayed by contemporaries, that we seem to see him as he appeared as attorney general on his way to Westminster to browbeat Raleigh, or to bully some other

*Giordano Bruno par Christian Bertholmess, Paris 1846, p. 102.

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