Edward Coke

Sir Edward Coke

Sir Edward Coke (pronounced "Cook") (1 February 1552 – 3 September 1634), was a seventeenth-century English jurist and Member of Parliament whose writings on the common law were the definitive legal texts for nearly 150 years. Born into a family of minor Norfolk gentry, Coke traveled to London as a young man to make his living as a barrister. There he rapidly gained prominence as one of the leading attorneys of his time, eventually being appointed Solicitor General and then Attorney General by Queen Elizabeth. As Attorney General, Coke famously prosecuted Sir Walter Raleigh and the Gunpowder Plot conspirators for treason. In 1606, Coke was made Chief Justice of the Court of Common Pleas, later being elevated, in 1613, to Lord Chief Justice of England. As a judge, Coke delivered numerous important decisions, and he gained a reputation as the greatest jurist of his age.^[1] Nonetheless, his unwillingness to compromise in the face of challenges to the supremacy of the common law made him increasingly unpopular with James I, and he was eventually removed as Lord Chief Justice in 1616.

Despite his dismissal from the bench and his already advanced age, Coke remained an influential political figure, leading parliamentary opposition to the Crown in the 1620s. His career in parliament culminated in 1628 when he acted as one of the primary authors of the Petition of Right. This document reaffirmed the rights of Englishmen and prevented the Crown from infringing them.

Coke's enduring fame and importance rests principally on his immensely influential legal writings and on his staunch defense of the rule of law in the face of royal absolutism. His legal texts formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the eighteenth century. As a judge and Member of Parliament, Coke supported individual liberty against arbitrary government and sought to ensure that the king's authority was circumscribed by law. In later times, both English reformers and American Patriots, such as John Lilburne, James Otis, and John Adams, used Coke's writings to support their conceptions of inviolable civil liberties.

Biography

Sir Edward Coke was born at Mileham, Norfolk, the son of a barrister from a Norfolk family. He was educated at Norwich School and then, from 1567 to 1570, Trinity College, Cambridge, which he left without taking a degree.^[2] In 1571 he traveled to London to begin his legal education, enrolling first at Clifford's Inn before transferring, in 1572, to the Inner Temple. On April 20th, 1578, Coke was called to the bar. He argued his first case before the Court of King's Bench in 1579, and in 1581 won his first landmark case, Shelley's Case (from whence derives the famous "Rule in Shelley's Case").^[3]

During the 1580s and 1590s Coke's practice grew rapidly and he became one of the most prominent lawyers in England.^[4] His growing legal reputation was accompanied by increasing political power: in 1586 he was made a Justice of the Peace for Norfolk, became Solicitor General in 1592, Speaker of the House of Commons in 1593, and Attorney General in 1594, a post for which he was in competition with his rival Sir Francis Bacon. Coke's tenure as Attorney General was marked by his zealous prosecutions for treason of Sir Walter Raleigh (in 1603) and the Gunpowder Plot conspirators (in 1606). During this period, Coke became fabulously wealthy, eventually coming to own 105 properties.^[5] It was also at this time that he began to publish his famous Reports (first volume printed 1600).

Coke

On June 30th, 1606, Coke was appointed Chief Justice of the Court of Common Pleas. His tenure on the bench was marked by brilliant and innovative judgments in a number of areas of the law, as well as by jurisdictional conflict between the common law courts and the courts of Chancery, High Commission, and Admiralty. Coke's efforts to limit the jurisdictions of these courts through the issuance of writs of prohibition ultimately caused James I to become involved in the conflict, and to assert a claim that he could decide disputes between his different courts, and even judge individual cases himself. To this Coke famously responded that:

the King in his own person cannot adjudge any case, either criminall ... or betwixt party and party ... but this ought to be determined and adjudged in some Court of Justice, according to the Law and Custom of England.... Then the King said, that he thought the Law was founded upon reason, and that he and others had reason, as well as the Judges: To which it was answered by me, that true it was, that God had endowed his Majesty with excellent Science, and great endowments of nature; but his Majesty was not learned in the Lawes of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law, which Law is an act which requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the Golden metwand and measure to try the Causes of the Subjects; and which protected his Majesty in safety and peace.^[6]

In 1613, Coke was advanced to the position of Chief Justice of the King's Bench. Although technically a promotion, this move was widely seen as a form of chastisement for Coke, since the chief-justiceship of the Common Pleas was a much more lucrative position. It was also hoped by the king's councilors that the nominal promotion would make Coke more tractable and amenable to the Crown's positions on cases^[7]. The move failed to produce the desired results, however, as Coke continued to quarrel with the non-common law courts and to resist James' efforts to meddle with cases or obtain favor from the judges. Ultimately, Coke's unwillingness to submit to royal interference in the course of the law was to be his downfall. The situation came to a head in The case of commendams (1616), when James ordered the justices of the King's Bench to stay proceedings in the case until they had consulted him. When the judges refused to comply, James summoned them before the Privy Council and asked them individually whether they would obey his command. All of the judges submitted except Coke, who replied only that "he would do that should be fit for a judge to do."^[8] As a result, Coke was removed from the chief-justiceship on November 16th, 1616.

Coke soon managed to obtain a return to royal favor by arranging the marriage of his daughter, Frances, to Sir John Villiers, brother of the king's favorite, the Earl of Buckingham. The marriage resulted in Coke being made a Privy Councilor on September 28th, 1617, although he was never restored to judicial office. His return to favor did not last long, however. Coke was elected to parliament in 1621 for the borough of Liskeard, and soon became a leader of parliamentary opposition to the Crown. In 1621 he led the assault on monopolies, reintroducing impeachment (which had not been used since 1450)^[9] as a parliamentary weapon against governmental misconduct. Among those impeached and convicted was Coke's long-time enemy, the Lord Chancellor Sir Francis Bacon.^[10] For his opposition, Coke was removed from the Privy Council and imprisoned in the Tower of London for much of 1622.^[11] In 1624 he was again returned to parliament, this time for Coventry, where he continued his assaults on monopolists and led the parliamentary faction seeking war with Spain. And in 1625, as a Knight of the Shire for Norfolk, he attacked the prodigality of the Court and its connections to Arminianism. As a result of his continued opposition, Coke was prevented from being elected to the Parliament of 1626 by Charles I, who pricked him to serve as sheriff of Buckinghamshire, an office which required him to stay in that county.

Coke at the time of the passage of the Petition of Right, with his motto: Prudens qui patiens

Coke's parliamentary career culminated with the Parliament of 1628, in which he played probably his most important role. The Parliament of 1628 assembled at a time in which civil liberties were widely seen to be under threat from absolutism. In particular, Charles' recent practice of imprisoning subjects without cause shown, levying taxes without parliamentary consent, billeting soldiers, and imposing martial law in time of peace raised fears that the laws of the kingdom were being subverted. Coke led the effort to pass legislation guaranteeing fundamental English liberties, being the first MP to present a bill on the subject.^[12] He deployed his immense legal knowledge to provide precedents to back up claims to specific fundamental liberties, and his personal legal authority helped to convince others that Charles' actions had been contrary to law. The culmination of his efforts was the famous Petition of Right, of which Coke was one of the primary authors. The Petition of Right declared that the king could not imprison his subjects without cause, that the legitmacy of imprisonment must be challengeable by habeas corpus, that taxation must be by parliament, that billeting was illegal, and that martial law could not be imposed in time of peace. It is a fundamental document of the English constitution.

Already 76 years old in 1628, Coke retired to his home at Stoke Pages, Buckinghamshire, at the end of the parliamentary session. He spent much of his remaining years engaged in finishing his monumental four volume Institutes of the Lawes of England.^[13] In 1632, Charles I, worried that Coke's legal writings might prove politically dangerous, ordered his papers seized.^[14] Coke died on September 3rd, 1634.

Coke's Writings

Coke's reputation as one of the most influential jurists in Anglo-American history rests to a significant extent on the central role that his legal writings have had in the development of the modern common law. Of greatest importance have been his thirteen volume series of Reports, and his four volume Institutes of the Lawes of England.

The frontispiece to the first volume of Coke's Reports (1600).

Coke's Reports have been described by the legal historian Sir John Baker as "perhaps the single most influential series of named reports."^[15] They are the earliest reports still commonly cited by lawyers today and due to their singular importance have the distinction of being cited as simply The Reports.^[16] Coke edited and published eleven volumes during his own lifetime, while two volumes, containing many of his most politically sensitive decisions, were not published until the Interregnum. His Reports contain cases spanning in time from his student days to 1616, the year that he was removed as Chief Justice of the King's Bench. Most of the reports after 1606 record Coke's own decisions as judge; prior to that, the reported cases are mostly those that he took part in as an attorney. Coke, however, had a noted tendency to include his own justifications for the decisions along with (or instead of) those of the judges who made them, meaning that many of the early cases reflect his own interpretation of the law. Although this was known at the time, "Coke's personal authority was enough to justify this method."^[17]

From their first publication, Coke's Reports have had an immense influence. Produced at a time when printed reports discussing substantive law (as opposed to pleading) were almost non-existent, the Reports set down for the first time many of the fundamental principles of the common law. Even Coke's enemy, Sir Francis Bacon, wrote praisingly of the Reports:

Had it not been for Sir Edward Coke's Reports (which though they may have errors, and some peremptory and extrajudicial resolutions more than are warranted, yet they contain infinite good decisions and rulings over of cases), for the law by this time had been almost like a ship without ballast; for that the cases of modern experience are fled from those that are adjudged and ruled in former time."^[18]

Even today, the foundations of the law of real property, tort, and contract, and administrative, environmental, and corporations law are traced to Coke's Reports. The Reports were also important in the development of early American constitutional theory: many of the individual reports emphasized the importance of the rule of law and due process, and helped to popularize in America a notion of inviolable rights that were the inheritance of Englishmen. In particular, Coke's decision in Dr. Bonham's Case (8 Co. Rep. 113b) has been cited as the origin of the concept of judicial review, which was adopted in the United States by Marbury v. Madison. The case was also routinely pointed to in the Revolutionary period as demonstrating that there were specific fundamental rights that Parliament could not infringe.

The Institutes of the Lawes of England are a four volume survey of much of the common law as it stood in the early seventeenth century. Like the Reports, they have been extremely influential in the development of the common law. The four volumes of the Institutes address property law, statutes, pleas of the crown, and the jurisdiction of courts, respectively. The first volume, A Commentary on Littleton, often referred to as Coke on Littleton, has been perhaps the most important of the four to the development of the common law, serving as the primary textbook on property law until the nineteenth century.^[19] It was the only one of the Institutes published during Coke's lifetime - the other three were suppressed by Charles I due to the politically dangerous material they contained, and were not published until the English Civil War. The Second Institute contains Coke's very influential gloss on Magna Carta, in which he propounded the view that the Charter guaranteed substantive rights to all Englishmen and acted as a strict limitation on the power of the Crown. Coke's expansive interpretation of Magna Carta would provide inspiration to later political groups such as the Levellers and the American Revolutionaries.^[20]

Like virtually all of Coke's writings, the Institutes are written in a particularly difficult and disorganized style. The great English legal writer Sir William Blackstone declared them to be "greatly defective in method,"^[21] and it is said that the young John Adams broke down in tears after trying to work his way through Coke on Littleton. Nevertheless, Blackstone praised the Institutes as a "valuable mine of common law learning," and the information they (and the Reports) contained fomed the basis for much of his own famous Commentaries.^[22] During the seventeenth and eighteenth centuries, the Institutes served as the primary textbooks for law students.^[23] They were particularly important in the American Colonies, where they were read by "virtually every student of the law" and were highly influential in shaping the nascent American law.^[24] Thomas Jefferson, for example, wrote that during his days as a law student (1762-1767) "Coke Lyttleton was the universal elementary book of law students," and John Rutledge remarked that the Institutes seemed "to be almost the foundation of our law."^[25] Today, the Institutes remain a point of first reference for lawyers seeking to discover the state of the law in the seventeenth or eighteenth centuries, and they have been cited in numerous United States Supreme Court opinions, including notably Roe v. Wade.^[26]

Famous judgments and reported cases

Sir Edward Coke in his judicial robes. Before the Glorious Revolution of 1688, which secured Parliamentary Sovereignty, Sir Edward Coke asserted in Dr Bonham's case (1610) the right of the common law to strike down legislation.

• Dumpor's Case (1578) this set forth a new rule for assignment of leasehold interests

• Heydon's case (1584) on the 'mischief' rule of statutory interpretation.

• Case of Bankrupts (1592) 2 Co Rep 25, 76 ER 441, "So that the intent of the said Act [1570 Bankruptcy Act] was expressed in plain words, to relieve the debtors of the bankrupt equally, and that there should be an equal and rateable proportion observed in the distribution of the bankrupt's goods among the creditors, having regard to the quantity of their debts..."

• Pinnel's Case (1601) An important contract case regarding the part payment of debts

• Twyne's Case (1602) Coke opined here that, "Fraud and deceit abound in these days more than in former times."

• Case of the Monopolies (1603) this is an important case for competition law (or "antitrust"), concerning a patent on the royal playing cards. Coke's opinion was that such a monopoly would be contrary to the law.

• The Countess of Rutland's Case (1604): the origin of the parol evidence rule is usually traced to this case. Coke wrote: "(I)t would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the uncertain testimony of slippery memory. And it would be dangerous to purchasers and farmers, and all others in such cases, if such nude averments against matter in writing should be admitted.” In modern parlance, parties to a written contract are barred from contending that they had a prior, inconsistent oral agreement on the same subject.

• Semayne's case (1604)^[27] Coke famously wrote that "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." It established the principle of freedom from arbitrary search and seizure.

• Prohibitions del Roi (1607) published posthumously, these detail his discussion with the King in which he (briefly) convinced a reluctant James that the law is based on "artificial reason" and must be left to lawyers to decide, rather than to the monarch.

• Case of Proclamations [1610] EWHC KB J22, 77 ER 1352, (1611) 12 Co Rep 74Coke famously describes the function of judges as being "not to make but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion."

• Calvin's Case (1608) concerning the London Company, Coke's opinion established that subjects of Scotland born after King James VI became James I of England, could hold land in England as well as in Scotland, because both Scots and Englishmen owed allegiance to the same king. This case would be important in supporting the idea that English colonists in North America would have the rights of Englishmen. "....However, in 1608, Sir Edward Coke, in his capacity as Lord Chief Justice, offered a ruling in Calvin's Case which went beyond the issue at hand: whether a Scotsman could seek justice at an English Court. Coke distinguished between aliens from nations at war with England and friendly aliens, those from nations in league with England. Friendly aliens could have recourse to English courts. But he also ruled that with "all infidels" (i.e. those from non-Christian nations) there could be no peace, and a state of perpetual hostility would exist between them and Christians.

• Dr. Bonham's Case (1610) this has been much argued about by historians but is seen by some as the origin of judicial review of legislation. The case – arising from Dr Bonham’s imprisonment by the President and Censors of the College of Physicians of London – considered whether a statute that contravened a fundamental principle of the common law could be adjudged void.

• William Aldred's Case (1610) concerned the nuisance of smells coming from a pig sty, seen by some as the birth of environmental law.

• Case of Sutton's Hospital (1612) a seminal case in corporations law, notable for its characterisation of corporations. The dispute centred around the London Charterhouse.

See also

• English law
• Law of the United Kingdom
• Institutes of the Lawes of England
• Petition of Right

Notes

References

• The Lion and the Throne, a biography (ISBN 0-316-10393-4) of Coke by Catherine Drinker Bowen, won the National Book Award.
• Three volumes of Coke's writings, with translations, notes, commentary, and an introduction, have been published as The Selected Writings of Sir Edward Coke, edited by Steve Sheppard (ISBN 0-86597-316-4). They are available individually as PDF files: vol 1 (pp. 1–520), vol 2 (pp. 521–1184), vol 3 (pp. 1185–1468). These also contain “The First Part of the Institutes of the Lawes of England: Or A Commentary upon Littleton, Not the name of the Author only, but of the Law it selfe”.
• Selected Works of Edward Coke at the Liberty Library of Constitutional Classics, Commentary on English common and statutory law, including the Institutes and the Reports.
• The 1826 edition (Thomas, John Henry and Fraser, John Farquhar eds) of Coke's Reports is available in part at Google Books:

  Vol 1 (Parts I-II)

  Vol 3 (Parts V-VI)

  Vol 4 (Parts VII-VIII)

  Vol 5 (Parts IX-X)

• All four Institutes are available from Google Books:

  First Part [1] (Volume 1 of 1832 ed.) [2] [3] (1853 American ed. in 2 vols)

  Second Part [4] (1797 ed.)

  Third Part [5] (1669 ed.) [6] (1797 ed.)

  Fourth Part [7] (1671 ed.) [8] (1797 ed.)

External links

Wikiquote has a collection of quotations related to: Edward Coke

Archival material relating to Edward Coke listed at the UK National Register of Archives

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