john cowell and interpreter and edward coke and duelling maxims

By his dictionary, then, Cowell had taken the side of the monarchy in the emerging battle between James I and Sir Edward Coke over royal authority in England. I think the period from 1595-1630 ought to be studied thoroughly by anyone interested in understanding the competing power demands of executive and legislative branches of government. I wasn't aware that the theory of the divine right of kings articulated by James I in the early 17th century was perceived to be the progressive and new doctrine at the time, while the approach emphasizing the supremacy of Parliament, at least as the theory was put forward by Coke, was based on "old" authorities. But Cowell's dictionary cast down the gauntlet, and it was taken up, not surprisingly, by Coke and was fought, at least at one level, through competing maxims.

Duelling Maxims

On the one hand, the theory articulated by Cowell was captured in the maxim spoken by the Lord Chancellor Ellesmere, "Rex est lex loquens," i.e., "the King is the law speaking," that royal power has no boundaries. As the King said, "General laws, made publicly in Parliament may by the King's authority be suspended upon causes known only to him" (Constitutional Documents of the Reign of James I at 63, quoted in Kevin Ryan, "Coke, the Rule of Law and Executive Power," 31 VtBJ 9, 12 (2005)). Francis Bacon, about whom I have written elsewhere, agreed with this sentiment:

"The twelve Judges of the realm are as the twelve lions under Solomon's Throne. They must be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty." Francis Bacon, "Of Judicature," Essays 136, cited in Ryan, supra, n.38.

But if these sentiments fueled the supporters of the monarch, Edward Coke had the following words at his disposal. Coke expressed his general philosophy in a motto, Lex est tutissima cassis ("Law is the safest helmet") but he didn't stop there. His disagreement with Cowell was captured in two other maxims or short Latin sentences. First, quoting Bracton, he said, "Quod rex not debet esse sub homine, sed sub Deo et lege." "The King ought not to be under man, but under God and the law." And then, in response to his growing estrangement with King James, Coke said, "Nullus liber homo imprisonetur nisi per legem terrae." "No man shall be imprisoned except through the law of the land."

Words Matched by Actions

But Coke was not content simply to utter a string of maxims against Cowell. Coke and Cowell had a previous controversy, and it related to the aforementioned (in the previous essay) Hotoman. Though Cowell disagreed with him in writing his dictionary, he had previously commended Hotoman for his critical review of Littleton's Tenures, probably the most significant book on English law between Bracton and Coke. Coke, who had just finished editing and updating the Tenures, was enraged at Cowell for this support of Hotoman. In addition, Coke may have been jealous at the extent of Cowell's legal learning. In any case, shortly after the dictionary came out, Coke led a charge against it. It was too pro-monarchical and it would take away some of the power of Parliament. Though King James was flattered by Cowell's approach, he knew he had to try to tame an unfriendly Parliament and a hostile Coke. Thus, James issued a suppression order in 1610 condeming Cowell's Interpreter. Some of the language of that order is reminiscent of Cowell's words against Hotoman in the entry under "Parlament" in the Interpreter.

"When Men goe out of their Element, and meddle with Things above their Capacitie, themselves shall not onely goe astray and stumble in Darknesse, but will mislead also divers others with themselves into many Mistakings and Errours.. the Proofe whereof wee have lately had by a Booke written by Docteur Cowell.. by medling in Matters above his reach, he hath fallen in many Things to mistake and deceive himselfe.. in some Poynts very derogatory to the supreme Power of this Crowne; In other Cases mistaking the true State of the Parliament of this Kingdome..."

Conclusion

Notice the rhetoric of suppression. When people begin to "meddle with Things above their Capacitie," they not only stumble in their own darkness, but they plunge others into darkness, too. But the irony of the suppression order is that the order seems to say precisely the opposite of what the dictionary entry under "King" says. "In some Poynts very derogatory to the supreme Power of this Crowne." It sounds as if James I didn't even proofread his suppression order, for the "derogatory" words were those which praised excessively the power of the crown.

Encouraged by his victory to suppress Cowell's book, Coke pressed on to try to have him executed, but Cowell died in 1611 before this could happen and, in any case, the King refused to go along. I would not be surprised if the controversy over the dictionary led to Cowell's rapid demise.

But who had the last laugh? On the one hand it appears that Cowell did, for his dictionary became, after the Restoration in 1660, the leading law dictionary in English until Giles Jacob's New Law Dictionary in the 18th century. And, in more than one entry, if you place Black's Law Dictionary, the current standard, next to Cowell's, you see the direct indebtedness of the former to the latter. Yet, on the other hand, Coke's repuation, especially for his action in securing the Petition of Right (1628), would make him the best known jurist of his generation and one of the five or so most significant lawyers in English history, at least from the perspective of the Founding Fathers of America. And, because we don't believe in legal history anymore, we keep repeating that assessment, even if we pronounce Coke's name like the drink.

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