hotoman and francogallia and parlament and john cowles and the interpreter

One normally looks at the work of the lexicographer as the labor of a solitary and diligent genius as s/he patiently tracks down usages of words and then assembles the data in alphabetical order. Simon Winchester's book on the making of the OED tended to reinforce this image of the dictionary-maker. But one should realize that one of the earliest legal dictionaries in the English language was anything but noncontroversial. In fact, it was suppressed by the order of King James I in 1610 and its maker, a distinguished professor of civil law at Cambridge University, narrowly missed being executed. Though I only know a little of the story, what I know is enough not only to make us want to learn our Latin maxims but to ask about possible biases of dictionaries that are seeemingly so "neutral." This and the next essay will introduce these issues.

Of the Making of (Legal) Dictionaries

When John Cowell's legal dictionary was published in 1607 he had only one predecessor in this endeavor, John Rastell. Rastell's dictionary, Exposiciones Terminarum Legum Anglorum, later known as Termes de la Ley, was published with facing Law French and English pages, and was intended to make legal terms accessible to the general reader. First published in the 1520s, Rastell's dictionary eventually went through 29 editions until the final one in 1819.* Cowell greatly enlarged

[*A brief introduction to this history is in Merksy's, "The Evolution and Impact of Legal Dictionaries, 15 Experience 32 (Fall, 2004).]

Rastall's dictionary, and Cowell was the first one who published citations to statutes and other authorities in the body of the dictionary entries. The facsimile edition I have of the first printing does not have page numbers. I would estimate that it is about 600 pages long, with articles on such subjects as "abate, abatement, abatour, abbot, abet and abishershing." The last is made fun of in this web site. Cowell's dictionary is a gold mine of information, most of which is rather useless for almost anything important today. For example, he has an entry under "Arches Court," and he tells us that it "is the chiefe and ancientest Consistorie, that belongeth to the Archbishop of Canterburie, for the debating of spiritual causes." It is so named because of a church in London dedicated to the Virgin Mary called the "Bow church" whose "toppe is raised of stone pillars builded arch-wise, like so many bent bowes." Glad you know that?

Getting Into Trouble

But it was not for his research on the meaning of the Arches Court that Cowell got into trouble. Like every dictionary which would define important topics, this one had to have an entry under "King" and "Parliament," for example. Let's see how he defines what a king is. He first tells us that the word is thought to be "contracted of the Saxon word Cyninge, signifying "him that hath the highest power and absolute rule over our whole Land." Well, this is ok as far as it goes, but then he proceeds to define the features of the king not as a historical individual in the past but as a present ruler. He lists five characteristics of a king:

(1) He is always supposed to be of full age, "though he be in years never so young."

(2) The King is not subject to death, "but is a Corporation in himselfe that liveth ever." It is because of this fiction that the dating of a statute like the statute of frauds is 29 Carolus II despite the fact that it was issued only in the 18th year of Charles II's reign and that he only reigned 25 years. The institution of monarchy was not extinguished, therefore, during the Civil War and Protectorate (1649-1660).

(3) He is above the law by his absolute power. This is what will get Cowell into trouble. He goes on, citing Bracton, "and though for the beter and equall course in making Lawes he doe admitte the 3 estates, that is Lords Spirituall, Lords temporall, and the Commons unto Councell, yet this, in diverse learned mens opinions, is not of constreinte, but of his owne benignitie, or by reason of his promise made upon oath, at the time of his coronation." The implication of this statement follows. "For otherwise were he a subject after a sort and subordinate, which may not bee thought without breach of duty and loyaltie. For then must we deny him to be above the law, and to have no power of dispensing with any positive lawe, or of granting especially priviledges and charters unto any, which is his onely and cleare right." And, then, speaking as a true lawyer, Cowell goes on to say, "And though at his coronation he takes an oath not to alter the lawes of the land: Yet this oath notwithstanding, hee may alter or suspend any particular lawe that seemeth hurtfull to the publike estate."

We ought to pause on that last sentence for a minute. The King takes an oath not to alter the laws, but he may alter them. And, a lawyer says that he may do so. At least Cowell doesn't deny that the king takes an oath nor does he dispute the content of the oath. I wonder if you are going to practice "royal law," or law supporting the powers that be, that you have to be skilled at writing sentences like the foregoing. But, he isn't done. "This much in short, because I have heard some to be of the opinion, that the lawes be above the king." Obviously, he doesn't think so.

(4) The King's testimony is of as high nature and credit as any "Record." "Whence it cometh, that in all writs or precepts sent out for the dispatch of justice, he useth none other witnesse but himself, alwaies using these words under it, teste me ipso" ("I myself testify").

(5) The King has by virtue of being a King "many prerogatives above any common person, be he never so potent or honourable."

Well, if he says this about the King, the obverse is what must be true about parliament. After telling us the French origin of the term, Cowell purportedly quotes medieval authorities which say: "Rex est caput, principium, et finis parlamenti; ita non habet parem in suo gradu." That is, "the king is the head, ruler and end of Parliament, and thus he has no equal in stature." That long quotation probably ticked off a lot of people because it listed Parliament's authority as "in the sixth place," after all kinds of minor regional clerics. He does give one example of how a certain Richard Earle was removed by royal authority from a captainship, but Earle refused to obey the king, giving his allegiance on the contrary to Parliament. Then, as a good lawyer, he says, "But one example cannot make good a doctrine." He then lays out the proper doctrine, "And of these two one must needes be true, that either the king is above the Parliament, that is, the positive lawes of his kingdome, or els that he is not an absolute king." He makes laws out of his generosity "yet simply to binde the prince to or by these lawes, weare repugnant to the nature and constitution of an absolute monarchy." And, then he finishes with the trump card--the appeal to Bracton.

Conclusion

In his article on Parliament (he spells it "Parlament"), he also attacks a contemporary French thinker, Hotoman, whose work Frncogallia "doth vehemently oppugne this ground" (i.e., of the subordinate position of Parliament). Cowles said he had "cried God and the world mercie for his (i.e., Hotoman's) offence, in writing that erroneous and seditious book." Well, as the next essay will show, a seditious work is in the eye of the beholder.

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