280 HISTORY OF LAW 



tion are so learned in the law of this Realm, as out of the reason of 

 the same, they can rule the case in question, in that sense, the rule 

 is true; but if it be intended of the reason of the wisest man that 

 professeth not the law of England (then I say) the rule is absurd and 

 dangerous." (7 Rep. 19a.) Not even the King, the source of justice, 

 could decide by his reason, as Lord Coke had told James the year 

 before, for " His Majesty was not learned in the Laws of his Realm 

 of England, and causes which concern the life, or inheritance, or goods, 

 or fortune of his subject are not to be decided by natural reason, 

 but by the artificial reason and judgment of law, which act is an act 

 which requires long study and experience, before that a man can 

 attain to the cognizance of it." (12 Rep. 65.) And even the learned 

 in the law, in Lord Coke's opinion, could not decide difficult cases 

 without argument in open court, " where Almighty God openeth and 

 enlargeth the understanding of the desirous of justice and right." 

 (Rep. Pref. p. 37.) 



These extracts show the ambiguity in the use of the term law of 

 nature and that even the judges were uncertain whether they could 

 find assistance in the law of nature or reason and what the meaning 

 of reason was. Coke's theory is that in the absence of precedent, the 

 standard of justice, as in art, when it has become developed, becomes 

 that of the expert. This tends to fix an arbitrary standard and to 

 prevent progress or flexibility. As Professor Gray truly says, " Thus 

 to limit jurisprudence is to take from it its chief glory. The supposed 

 immutability of its principles was what once gave it its dignity and 

 charm; to-day it owes them rather to its possibilities and prospect 

 of boundless development." ("Gen. Definitions in Jurisprudence," 

 6 Harv. Law Rev. 21, 28.) 



There is another principle in Calvin's Case, namely, that the use 

 of precedent had become established in Coke's day, although the 

 number of precedents cited in that case should be taken as excep- 

 tional rather than as illustrating the normal practice. Judges in the 

 time of Coke were accustomed to cite authorities by way of " orna- 

 menting discourse" as well as by way of authority, and in Calvin's 

 Case they seem to compete in displaying general as well as pro- 

 fessional erudition. In Moore's report of the proceedings in Parlia- 

 ment, he cites Statutes, Year-Books, Fleta, Littleton, and Dyer. In 

 Bacon's argument, besides these, he refers to Coke's Reports, Plow- 

 den, Bracton, Fitzherbert, Stamford, Psalms, Genesis, Aristotle, and 

 Xenophon. Lord Ellesmere, besides referring to the foregoing, cites 

 the Register, Glanvil, Britton, Lambard, Blackwood, Hingham, the 

 Civil Law, Ulpian, Tertullian, St. Augustine, Thomas Aquinas, St. 

 Bernard, St. Gregory, Ezekiel, Esaias, St. John, St. Paul, Proverbs, 

 Lucretius, Horace, Livy, and Cicero. Coke refers to authorities more 

 than two hundred and fifty times, and besides most of the foregoing 



