Institutes: Commentary Upon Littleton. First Institute "Reason Is The Life Of The Law"

"Reason Is The Life Of The Law"

Context: The relationship of law and reason has always been taken for granted. Sir John Powell, in the case of Coggs vs. Bernard, said: "Consider the reason of the case, for nothing is law that is not reason." He was merely repeating a tenet of English Common Law stated nearly five centuries earlier by one who had been Judge of Assize and Judge of Common Pleas in fifteenth century England. Sir Thomas Littleton (1422–1481) was a jurist who decided to put into writing, principles about dealing with estates in land in England. He wrote in French and called the work Tenures. According to the earliest manuscript, it was "complete in the 14th year of the Reign of Edward IV," that is, 1475, but was not published until after the author's death, to become one of the first books printed in London. For a long time, it was admired for its concise and simple qualities, and was fundamental in British legal education. However in the course of 150 years, conditions changed, new problems arose, and in 1628, the man called "the greatest of all English common lawyers," Edward Coke (or Cooke), republished it in French and English in parallel columns along with his commentary in a third column, in Latin and English. This "Coke upon Littleton" remained the standard text until the nineteenth century. For instance, Book II, chapter 6, section 138, discussed the obligations of a tenant to his master. The lawyer distinguished between the kinds of tenants, whether frankmarriage or frankal-moigne. He declared: "a tenant in frankalmoign by reason of his tenure shall doe divide service for his Lord, as is said before; and this he is charged to do by the Law of the holy Church and therefore he is excused and discharged of fealty; but tenant in frankmarriage shall not doe for his tenure such service; and if he doth not fealty, he shall not doe any manner of service to his Lord, neither spiritual not temporall, which would be inconvenient, and against reason. . . ." Coke, commenting on this declaration, says in a parallel column:

And this is another strong argument in Law, Nihil quod est contra rationem est licitum [Nothing contrary to reason is permitted]; For Reason is the life of the Law. Nay the Common Law itselfe is nothing else but reason; which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every man's naturall reason. . . .