By Slow Degrees

Biographer, musician, and a writing member of the famous Drinker clan of Philadelphia, CATHERINE DRINKER BOWEN has scored a Progressive success with her interpretive biographies, three of which have been chosen by the Book-of-the-Month Club. She has been increasingly attracted by law and lawyers as part of history, as was evident in her study of Justice Oliver Wendell Holmes. Yankee from Olympus, and again in its successor, John Adams and the American Revolution. She interrupted her work on her new book, the biography of Sir Edward Coke, the eminent Elizabethan jurist, to deliver this talk before the American Law Institute in Washington.

by CATHERINE DRINKER BOWEN

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LAWYERS and writers have much in common. We are concerned with words — how to say exactly what we mean and no more than we mean. We are concerned also with the behavior of individuals under given circumstances. Such behavior is, indeed, our stock in trade. Nevertheless there is between us a fundamental difference. I am not belittling my own profession when I say that lawyers and judges have a more immediate stake in what is set down on paper. I write a biography and perhaps it touches the emotion of my readers. I hope it does. But a lawyer’s brief, a judge’s rendered opinion, leads to direct action. Somebody goes to jail, somebody pays a fine or forfeits his money or his reputation. That irrepressibly oracular figure, Dr. Samuel Johnson (women do not like him), said a good thing: “Lawyers know life practically. A bookish person should always have them to converse with. Lawyers have what the writer wants.”

For fifteen years, I have been writing about lawyers. My notebooks are filled with the characteristics of professional legal gentlemen: judges, ready to sum up or to instrumet; law school professors, ready to make statements — and then qualify those statements; advocates, born advocates, with (heir wonderful, remorseless, happy courtroom voices that go on and on! I am grateful to lawyers and I welcome a chance to say so. Think of the material the legal profession has given me! My biography of Justice Holmes was four hundred pages and the one on John Adams was seven hundred pages. For the past three years I have been writing about that sixteenth-century legal figure, Sir Edward Coke, the man whom Maitland wrote of as “the common law made flesh. Three lawyers, then, have furnished me with superb material. The world likes to grumble because lawyers make their living from the troubles of laymen. Here is one laywoman who for fifteen years has been making quite a thing for herself out of the troubles and the triumphs of lawyers.

There are two questions which lawyers often ask me about my biographies. The first is: “Why did you go backwards, in time? Holmes, John Adams, Edward Coke.” To me, the natural progression is backward. Writing about a nineteenth-century legal thinker, a person becomes curious to find out where that thinker, that judge, derived certain of his ideas, So I went back to a fertile century, the eighteenth — and came upon John Adams. Then the question arose, “Where did John Adams find these practical, idealistic eighteenth-century notions about how to form governments and write state constitutions?" I here was one place to look: England, in the seventeenth and sixteenth centuries. Edward Coke, for the purpose, comes in just the right place. His dates were 1552-1634, alt hough, as I go along, I discover that Coke’s story actually starts in 1215, with Magna Carta.

The other question I am asked is about laymen writing legal biographies: “Why do we do it?” It takes me five years to write a biography. Not long, as scholars count time, but long enough, as reporters count time. I look on myself as a historical reporter, a gatherer of biographical legal news. Not learned news. I am not equipped for that. But pertinent news which falls, biographically, into two categories. First, news about lawyers themselves, how they developed, how they were educated, what their outlook was upon their profession. And secondly, the broader news of what these men did, what they accomplished as it pertains to us millions beyond their charmed circle. And that if does pertain to us, it would be wasted time to protest.

The world has not always shared my admiration for those of the legal profession. The public in general is hard on legal gentlemen. As early as the fifteenth century, I find stringent regulations to keep down the number of lawyers in Edward Coke’s native county of Norfolk, which, since William the Conqueror’s time, seems to have been a legal nursery. Lawyers are a sturdy breed, they multiply and flourish. In the Parliament of 1601, the Lord Chancellor on opening day inveighed against “prowling and common solicitors that set dissension between man and man, pettifoggers and vipers of the commonwealth.”

The Lord Chancellor of course referred to bad lawyers, not good ones. Laymen unfortunately lose sight, at times, of this nice distinction. The plain fact is that those upon whom the world depends, it seldom loves when dependence is past. The legal profession does not require my defense, certainly. Of all people in existence, lawyers are best equipped to defend themselves. When I was younger and tenderer, I used to apologize because I, a layman, had chosen to write long books about lawyers. I doubt if the fact needs apology or explanation. Goethe said the biographer “will deserve well of history if he can communicate the living quality that is concealed.” I happen to be very much in earnest when I write the biographies of lawyers. In this connection I like to think of something that Justice Holmes’s father said. Dr. Oliver Wendell Holmes was defending, against a world of tough-fibered medical experts, the newly discovered contagiousness of puerperal fever. I am too much in earnest, he said, for either humility or vanity.”

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Mv THREE legal subjects had certain personal characteristics which impelled me to choose them in the beginning. First, a deep pride in their profession. Holmes, Adams, and Coke looked on the law historically, in a long and, to them, magnificent perspective. “This abstraction called the law,” Holmes said, “where, as in a magic mirror, we see reflected, not only our own lives but the lives of all men that have been.” John Adams was not capable of that kind of diction. Few people are. But he had the same outlook, coupled with a hard, earthy, practical nature. Law, to Adams, was constitutional law; it was government. Quite early in life he became absorbed in the study of comparative government, reading whatever he could find about the Italian republics of the Middle Ages, the ancient city-states, the Dutch experiments. He was surprised when people would not listen to him talk about it. “I know not how it is,”he wrote plaintively to a friend, “but mankind have an aversion to the science of government. To me, no romance is more entertaining.”

Sir Edward Coke compiled eleven volumes of law reports (thirteen, counting the posthumous ones) covering about six hundred cases. I know because I counted them. He wrote four volumes on the laws of England, the first being the famous Commentary upon Littleton. He did this in his leisure time. He served often in Parliament, once as Speaker. He was Attorney General for thirteen years, Chief Justice of Common Pleas, then King’s Bench. “True it is,” he said, “that I have been ever desirous to know much. And do acknowledge myself to owe more to my profession than all my true and faithful labors can satisfy.”“Knowledge of the law,” Coke told his students, “is like a deep well, out of which each man draweth according to his understanding, He that reacheth deepest, he seeth the amiable and admirable secrets of the law.” Coke was forever defending the English law, as against, of course, Roman or civil law, Continental law, the law ecclesiastic. Often enough he defended it where, quite palpably, at that stage of history, the English law did not deserve defense. Coke was an excellent teacher, an inveterate teacher. As Speaker of the House of Commons, he taught law to the Commons, gave them little lectures from the Chair, All his life he taught his law students at the Inns of Court in London. He said they complained because the laws of England were “dark, and hard to be understood.” He had therefore, in his books, “opened such windows as make the laws lightsome and easy ... so that any man who hath but the light of nature (which Solomon calleth the candle of Almighty God) if he add industry and diligence thereto, can easily discern the same.”

Men who themselves possess great intelligence are forever demanding diligence from their students or their colleagues, when what they really look for is talent or genius equal to their own. Coke called this quality the “light of nature, candle of Almighty God.” As for Holmes, do you remember his story about his teaching days at Harvard Law School? “I used to tell my students,” he said, “that they could do anything they wanted, if only they wanted to hard enough. But what I did not tell them was, they must be born wanting to.”

These three lawyers showed a deep, almost romantic reverence for their profession. Something else which they manifested was a consciousness of being intellectually alone and an ability to bear and to endure this loneliness. For such men the experience begins early. With Holmes I would say it began in his late twenties, when he was preparing a new edition of Kent’s Commentaries. His friends noted his extreme absorption and it made them uneasy. Later, Holmes spoke of it as an adventure of sailing for the polar ice and letting oneself be frozen in. “No one,” he said, “can cut new paths in company. A man does that alone.” John Adams kept a diary, voluminous, infinitely revealing — heaven’s gift to a biographer. To watch young Adams wrestle with his particular devils, you might think Martin Luther wrote that diary. At twenty-four, Adams scolds himself because he cannot spend a whole day upon one especial book, say, Justinian’s Institutes. Why, he asks, must he stop to smoke, to write a letter, or “to think of the girls"’? Is there not someone who can help him, guide him, is there not some easier way out? “It is my destiny,” he writes, “to dig treasures with my own fingers. Nobody will lend me or sell me a pickaxe.”

There is in men of such endowment a vast, continuing impatience, a desperate persistence which for the biographer is an awesome thing to watch. Holmes believed that a man who has not arrived by forty will never arrive. He nearly broke himself in two trying to get his book, The Common Law, written by that strategic date. It is to be noted also that intellectual men, who live by and through books, mourn continually that they are not men of action.

They show embarrassment because they are not soldiers, stevedores, boxers. Holmes had little complaint on this score, with his record of three years’ active service in the Civil War. But John Adams, bald and fortyish and making himself surely useful enough at the Continental Congress, wrote frantically to his wife, Abigail: “Oh, that I were a soldier! I will be. I am reading military books. Everybody must, and shall, and will be a soldier.”

Sir Edward Coke, on the other hand, never apologized for being a bookish man. On the contrary, he defended it. In the year 1601, as Queen Elizabeth’s Attorney General, Coke prosecuted the Earl of Essex for treason. The Essex Rebellion lasted only a day — one of the silliest attempts of history. In connection with it, seven men were tried. All were convicted, six were executed. At the last trial of all, Coke seized the occasion to express his satisfaction that in the entire affair, though some three hundred were in prison, not one was a lawyer. “To the honor of the City of London,”Coke said in the courtroom, “not one Inns of Court man followed the Earl of Essex. Not one scholar of the law. Not one.” During the rebellion, there had been an incident where Chief Just ice Popham and Lord Chancellor Egerton were locked into Essex House and left there for six hours, their lives threatened by a crowd of swordsmen in the courtyard.

Around midday, one of Essex’s followers offered the Chief Justice his liberty. Whereupon old John Popham said no, he would not dream of accepting freedom unless the Lord Chancellor could go too. Coke told about it in court. And then he said proudly, “To their honors I will speak it, that in some gown-men there rest as valiant minds, where the cause requires it, as in them that wear swords.”

For better or for worse, most lawyers are eloquent. One finds in legal gentlemen a provision of good, healthy ham. (Something else which they share with writers.) Eloquent men, especially those with a tendency to be quarrelsome, a bit quick on the trigger, like to protest how silent they are under stress. Holmes of course was too truly sophisticated to protest anything of the kind. Moreover Holmes was, as Justice Brandeis said to me, “an ivory tower man, raised in his father’s library.”

And Brandeis added that it was “a good thing for the Supreme Court to have an ivory lower man at least once in a generation.” But John Adams was not an ivory tower man, and neither was Coke. They were hot-tempered, frequently embroiled in quarrels. John Adams, after such a fracas, listed his new enemies in his diary and then added loftily, “This storm will blow over me in silence.”

No storm ever blew over John Adams or any good lawyer in silence. Take Sir Francis Bacon, who was Coke’s rival straight along through their two careers, one in equity, one in the common law courts. In the year 1601, Coke and Bacon had a noisy row in Exchequer Court, on the first day of term. They slanged away at each other, and we know what they said because Bacon went immediately home and wrote a careful report to the Secretary of State, who happened to be his first cousin. (It was characteristic of Bacon to get there first with the news.) Bacon told what. Coke had said to him and then added, “Mr. Attorney” — they called Coke “Mr. Attorney” in those days—“Mr. Attorney gave me a number of disgraceful words, which I answered with silence and showing I was not moved by them.”

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HOLMEW, John Adams, Coke were concerned with the business of government. Neck and neck with the personal story there runs therefore the history of constitutions; written constitutions and unwritten ones. Lord Brougham made a remark, which he said he got. from somebody else: “All that we see about us, kings, lords and commons, the whole machinery of state, all the apparatus of the system and its varied workings, end in simply bringing twelve good men into a box.”

Teachers of the law will want that remark qualified, at once. Possibly it is a bit exaggerated. All 1 wish to say is that nobody could write those three biographies without finding herself frequentlyin the courtroom or the legislature. And no layman can spend time in either of those places without perceiving the extraordinary importance of procedure.

Observing Edward Coke as Speaker of the House of Commons, I saw his care concerning, for instance, the matter of voting from the floor. (Those were the days when parliamentary procedure was still in the making.) When a division was called, should the Ayes get up and go out to the lobby to be counted while the Noes sat still, or the other way? There were not nearly enough seats to go round. A man voting Aye went out and lost his seat to somebody who had been standing. Consequently it happened that members actually voted against their conviction so as not to have to stand up for the rest of the day.

Small matters of procedure can have vast repercussions on us plain people, waiting outside. I’m aware that it is not advisable to judge a nation’s legal procedure by what happens in big dramatic cases which are bounded on three sides by politics. (Wasn’t it Holmes who said, “Great cases make bad law”?) In such trials, everything is warped by that huge imponderable which enters the courtroom: public opinion. It was that way in 1600, it is that way now. Academically, these cases are not typical of customary procedure. Nevertheless, the layman, the general public, does look on such trials as, let us say, a test of how well customary procedure holds up under stress. Specialists in any field avoid large, fuzzy words. Judges avoid the word justice, preferring, quite rightly, to speak of the law. But we laymen use the words justice and injustice. We happen to be the ones who are caught in the machinery. Is it fair?” we ask. “Was it fair?”

Ranging, as a layman, over nearly four centuries of courtroom procedure, legislative procedure, I was particularly impressed with one thing. If reform in law is to come at all, it must come slowly or it will not stick. When it comes fast it boomerangs, or else we laymen ignore the new law. Voltaire said something which I doubt would be said — I trust would not be said — by an American or Englishman in any Century. And his context does not suggest irony. “Do you wish good laws? Then burn the ones you have and make new ones.” Occasionally, during a lifetime, we see the rules burned. We see a brand-new kind of tribunal set up — I won’t say a court — a tribunal which burns the old rules and makes its own. We laymen watch what happens. And we do not like it.

For all my books I have a private working title, a slogan by which I operate and which has nothing to do with what publishing houses refer to as “the selling title.” For Edward Coke my private title is three words, and they refer not to Coke but to public law — “By Slow Degrees.’

Consider the seven centuries of Anglo-American common law, a big arc in time. Edward Coke comes in the middle, at a moment when some rather reprehensible notions were floating about the courtroom — leftovers from an earlier day when England’s government was not strong enough to dispense with certain legal tyrannies. For the biographer it is distressing to watch Mr. Attorney in, say, the trial of Sir Walter Ralegh — which actually was not a trial at all but a public inquiry into guilt already prejudged by Bench and Bar; and not only prejudged but proclaimed. Coke’s brutality to Ralegh has become a byword. I see it quoted in Bar Association Journals, month after month. I wish those gentlemen would quote the context — what the Chief Justice said at that trial, his expressed reasons for not permitting Ralegh to have his one and only accuser brought to the courtroom to confront him face to face, as Ralegh requested. Should he permit that, Chief Justice Popham told the court, why, it would be to endanger the stale! Everybody accepted the dictum. It was recognized procedure.

Right in the middle of this appalling situation, judges and prosecutor spoke proudly ol the laws of England. “The law of England is a law of mercy.” Coke said it in courtroom and out, and when he wished to be mysterious or especially impressive he put it, after his fashion, into Latin: Lex Angliae est lex misericord me.

And yet, one has the conviction —or, rather, one hazards the guess — that Coke’s very faith in English law was something of a foundation lor our own future, here in the United States. His was not a complacency but a true pride upon which, as a judge and Parliament man, he acted, later, at peril of his life. Out of Coke’s experience and the experience of those who followed and preceded him, there was shaped at last that system which America and England share and in which they can both take pride.

Seeing at first hand what lawyers are trying — by slow degrees— to achieve, I recall something Blackstone said. He referred to a specific point of law, yet what he wrote has wide application here as in England: “Legislature and judges in the course of a long, laborious process, extracted by noble alchemy, rich medicines out of poisonous ingredients.”

Blackstone was not urging that two wrongs make a right; or. Do evil that good may come of it; or, The end justifies the means. I think he gave us one of those vague, perceptive distortions which sometimes carry farther than logic.

We laymen, then, watch and observe our courts, our judges, our public prosecutors, our public defenders, and our Law Institute. We do not look for a millennium, for that perfect state which will need no lawyers. But we are reassured by what the legal profession is trying to do. We like to know that among men wise in the law, there is a certain vigilance, the courage of persistence, the courage of patience. We laymen feel that the gentlemen of the Law Institute are reaching for things that will come — by slow degrees.