Edward Coke


Edward Coke
Sir Edward Coke
A portrait of a brunette man in his 40s, with a brunette beard and mustache. He is wearing a shapeless black robe and a Jacobean ruff; to the right of his head is a coat of arms with a motto underneath it. On the bottom right of the portrait is a paragraph of indistinguishable text, while the entire picture is captioned "Given by the descendent Thomas William Coke 1780+".
Chief Justice of the King's Bench
In office
25 October 1613 – 15 November 1616
Appointed by James I
Preceded by Sir Thomas Fleming
Succeeded by Sir Henry Montagu
Chief Justice of the Common Pleas
In office
30 June 1606 – 25 October 1613
Appointed by James I
Preceded by Sir Francis Gawdy
Succeeded by Sir Henry Hobart
Attorney General for England and Wales
Appointed by Elizabeth I
Preceded by Thomas Egerton
Succeeded by Sir Henry Hobart
Solicitor General for England and Wales
In office
16 June 1592 – 10 April 1594
Appointed by Elizabeth I
Preceded by Thomas Egerton
Succeeded by Sir Thomas Fleming
Personal details
Born 1 February 1552(1552-02-01)
Mileham, Breckland, Norfolk, England
Died 3 September 1634(1634-09-03) (aged 82)
Godwick, Breckland, Norfolk, England
Nationality English
Spouse(s) Bridget Paston (died 1598) Elizabeth Cecil (died 1646)
Alma mater Trinity College, Cambridge
Profession Barrister, Politician, Judge

Sir Edward Coke SL PC (play /ˈkʊk/, formerly /ˈkk/; 1 February 1552 – 3 September 1634) was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras.[1] Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the Bar on 20 April 1578. As a barrister he took part in several notable cases, including Slade's Case, before earning enough political favour to be returned to Parliament, where he served first as Solicitor General and then as Speaker of the House of Commons. Following a promotion to Attorney General he led the prosecution in several notable cases, including Robert Devereux, Sir Walter Raleigh and the Gunpowder Plot conspirators. As a reward for his services he was first knighted, and then made Chief Justice of the Common Pleas.

As Chief Justice, Coke restricted the use of the ex officio oath and, in the Case of Proclamations and Dr. Bonham's Case, declared the King to be subject to the law, and the laws of Parliament to be void if in violation of "common right and reason".[2] These actions eventually led to his transfer to the Chief Justiceship of the King's Bench, where it was felt he could do less damage. Coke then successively restricted the definition of treason and declared a royal letter illegal, leading to his dismissal from the bench on 14 November 1616. With no chance of regaining his judicial posts, he instead returned to Parliament, where he swiftly became a leading member of the opposition. During his time as an MP he wrote and campaigned for the Statute of Monopolies, which substantially restricted the ability of the monarch to grant patents, and authored and was instrumental in the passage of the Petition of Right, a document considered one of the three crucial constitutional documents of England, along with the Magna Carta and the Bill of Rights 1689. With the passage of the Petition of Right in 1628, Coke retired to his estates, where he revised and finished his Reports and the Institutes of the Lawes of England before dying on 3 September 1634.

Coke is best known in modern times for his Institutes, described by John Rutledge as "almost the foundations of our law",[3] and his Reports, which have been called "perhaps the single most influential series of named reports".[4] Historically, he was a highly influential judge; within England and Wales, his statements and works were used to justify the right to silence, while the Statute of Monopolies is considered to be one of the first actions in the conflict between Parliament and monarch that led to the English Civil War. In America, Coke's decision in Dr. Bonham's Case was used to justify the voiding of the Stamp Act 1765 and writs of assistance, which led to the American War of Independence, and after the establishment of the United States his decisions and writings profoundly influenced the Third and Fourth amendments to the United States Constitution while necessitating the Sixteenth.

Contents

Family background and early life

The surname "Coke", or "Cocke",[5] can be traced back approximately 400 years before Edward Coke's birth, to a William Coke in the hundred of South Greenhoe, now Swaffham. It was not a common surname, being limited to one family, but the family itself was relatively respected – members of the family from the 1400s on included an Under-Sheriff, a Knight Banneret,[6] a barrister and a merchant in Norwich.[7] The origins of the name prior to that are uncertain; theories are that it signified a river among early Britons, or was descended from the word "Coc", or leader. Another hypothesis is that it was simply an attempt to disguise the word "cook".[8]

Coke's father, Robert Coke, was a barrister and Bencher of Lincoln's Inn who built up a strong practice representing clients from his home area of Norfolk, particularly the Townsend family. Over time, he bought several manors at Congham, Westacre and Happisburgh and was granted a coat of arms, becoming a minor member of the gentry.[9] The name "Coke" itself was pronounced "kuke" during the Elizabethan age itself, although it is now pronounced "cook".[9] Coke's mother was Winifred Knightley Coke, who came from a family even more intimately linked with the law than her husband. Both her father and grandfather had practised law in the Norfolk area, and her sister Audrey was married to Thomas Gawdy, a lawyer and Justice of the Court of King's Bench with links to the Earl of Arundel, something that later served Edward well. Winifred's father later married Agnes, the sister of Nicholas Hare.[9]

Edward Coke was born on 1 February 1552 in Mileham,[10] one of eight children. The other seven were daughters – Winifred, Dorothy, Elizabeth, Ursula, Anna, Margaret and Ethelreda – although it is not known in which order the children were born. It is sometimes supposed that Edward was the oldest, because his name is first on the monument to Robert Coke, but this is most likely simply because the names were listed with the son first and daughters second, not because the order represented their ages.[11] One estimate by Allen Boyer is that Edward was the fourth child based on baptism registers.[12] Two years after Robert Coke died on 15 November 1561,[6] Winifred remarried to Robert Bozoun, a member of an old family who had a tremendous influence on the Coke children. A property trafficker, Bozoun was noted for his piety and strong business acumen, once forcing Nicholas Bacon to pay an exorbitant amount of money for a piece of property.[13] From Bozoun, Coke learnt to "loathe concealers, prefer godly men and briskly do business with any willing client", something which shaped his future conduct as a lawyer, politician and judge.[14]

Education and call to the Bar

A photograph of the front of the chapel of Trinity College.  The Chapel itself is a white building with arches and large glass windows
Trinity College, Cambridge, where Coke studied between 1567 and 1570

At the age of eight in 1560, Coke began studying at the Norwich Free Grammar School.[15] The education there was based on erudition,[16] the eventual goal being that by sixth-form level the students have learnt "to vary one sentence diversely, to make a verse exactly, to endight an epistle eloquently and learnedly, to declaim of a theme simple, and last of all to attain some competent knowledge of the Greek tongue".[17] The students were taught rhetoric based on the Rhetorica ad Herennium, and Greek centred around the works of Homer and Virgil.[18] Coke was taught at Norwich to value the "forcefulness of freedom of speech", something he later applied as a judge.[19] Little is known about his time there, although it is implied in later accounts that he was a diligent student who applied himself well.[20]

After leaving Norwich in 1567 he matriculated to Trinity College, Cambridge, where he studied for three years until the end of 1570, when he left without gaining a degree.[21] Little is known of his time at Trinity – he certainly studied rhetoric and dialectics under a program instituted in 1559, but although he is considered to have had all the intelligence to be a good student little is known of his academic achievements there.[22] Coke was proud of Cambridge and the time he spent there, later saying in Dr. Bonham's Case that Cambridge and Oxford were "the eyes and soul of the realm, from whence religion, the humanities, and learning were richly diffused into all parts of the realm."[23]

After leaving Trinity College he travelled to London, where he became a member of Clifford's Inn in 1571.[24] This was to learn the basics of the law – the Inns of Chancery, including Clifford's Inn, served as a place of initial legal education before transfer to the Inns of Court, where one could be called to the Bar and practice as a barrister.[25] Students were educated through arguments and debates – they would be given precedents and writs each day, discuss them at the dinner table and then argue a moot based on those precedents and their discussions.[26] Coke also studied various writs "till they turned honey sweet on his tongue",[27] and after completing this stage of his legal education transferred to the Inner Temple on 24 April 1572.[28]

At the Inner Temple he began the second stage of his education, reading legal texts such as Glanville's Treatises and taking part in moots.[29] It was here he first drew notice, arguing well in an Inner Temple moot and asserting that the Inner Temple cook had failed to prepare edible food.[30] He took little interest in the theatrical performances or other pieces of high culture at the Inns, preferring to spend his time at the law courts in Westminster Hall, listening to the Serjeants argue.[31] After six years at the Inner Temple he was called to the Bar on 20 April 1578,[32] a remarkably fast rate of progress given the process of legal education at the time, which normally required eight years of study.[33] Polson suggests that this was due to his knowledge of the law, which "excited the Benchers".[34]

Practice as a barrister

An image of a court in session.  In the back sit five Justices in orange robes.  In the center is a table where scribes and court officials work.  In the bottom section the public visits the court for hearings.
The Court of King's Bench, where Coke brought his first case

After being called to the Bar on 20 April 1578 Coke immediately began practising as a barrister. His first case was in the Court of King's Bench in 1581,[35] and was known as Lord Cromwell's Case after the claimant, Lord Henry Cromwell, a landlord in Coke's home county of Norfolk. The case was a charge of slander against a Mr Denny, the Vicar of Northlinham and Coke's client. In a dispute with Denny, Cromwell had hired two unlicensed preachers to harass him, denounce the Book of Common Prayer and preach the gospel in his area. Denny retorted by telling Cromwell "you like not of me, since you like those that maintain sedition". Cromwell argued that Denny was guilty of scandalis magnatum, slander against a peer of the realm, because his statement implied that Cromwell himself was seditious or had seditious tendencies.[36]

The case was actually two actions, with the first judgment being given in Denny's favour after Coke's research found a flaw in the pleadings that invalidated Cromwell's case.[37] His counsel had worked from an inaccurate English copy of the Latin scandalis magnatum which had mistranslated several passages, forcing them to start the case anew.[38] Cromwell brought the case again, and Coke argued that Denny had commented on Cromwell's support of people attacking the Book of Common Prayer, and was not implying any deeper disloyalty.[39] The judge ruled that Denny's statement had indeed meant this, and from this position of strength Coke forced a settlement.[38] Coke was very proud of his actions in this case, and later described it in his Reports as "an excellent point of learning in actions of slander".[39] The next year he was elected Reader of Lyon's Inn for three years,[40] something surprising considering his young age and likely related to his conduct in Lord Cromwell's Case.[41] As Reader he was tasked with reading to the students at the Inn, a group which numbered about thirty at any one time, and the quality of his readings increased his reputation even further.[41] His lectures were on the Statute of Uses, and his reputation was such that when he retired to his house after an outbreak of the plague, "nine Benchers, forty barristers, and others of the Inn accompanied him a considerable distance on his journey".[42]

During the 1580s, Coke became intimately linked with the Howard family, the Dukes of Norfolk and Earls of Arundel. His uncle Thomas Gawdy had close links to Earl Arundel himself.[43] In Norfolk Arundel held a Liberty – he was essentially a local prince who appointed all officials, maintained his own prison, executed justice and paid off any royal clerks.[43] His power was based around his household, particularly the network of lawyers and stewards who held his estates together.[43] Coke's uncle Thomas Gawdy had served as the Steward to the Third Duke of Norfolk, and during the 1580s Coke was employed by the Howards to see off lawyers employed by the crown who argued that the Howards' lands were forfeit due to the treason of the 4th Duke of Norfolk.[44] As well as defeating these direct attacks Coke also travelled to Cardiff to answer a challenge by Francis Dacre, brother-in-law to Philip Howard – he proved that Dacre's evidence was false, and had the case dismissed.[44]

Coke became involved in Shelley's Case in 1581, a now-classic case that created a rule in real property that is still used in some common law jurisdictions today and also established Coke's reputation as both an attorney and a case reporter.[45] His next famous case was Chudleigh's Case, a dispute over the interpretation of the Statute of Uses, while his third was Slade's Case, a dispute between the Common Pleas and King's Bench over assumpsit now regarded as a classic example of the friction between the two courts and the forward movement of contract law;[46] Coke's argument in the case was the first thing to define consideration.[47]

Politics

Thanks to his work in their behalf, Coke had earned the favour of the Dukes of Norfolk.[48] When he secured the Lordship of Aldeburgh for them in 1588 he also secured the Aldeburgh Parliamentary Constituency, which elected two Members of Parliament (MPs). With their support, Coke was returned for Aldeburgh as an MP in February 1589.[48]

Elizabeth I

Solicitor General and Speaker

A portrait of Robert Cecil, who is standing at a table wearing black robes.  He has neck length brown hair, and a pointed goatee.  He has gold lettering behind him, which reads "sero, sed serio."
Robert Cecil, Coke's political ally who acted as a staunch defender of Elizabeth I

The political "old guard" began to change around the time Coke became a Member of Parliament. The Earl of Leicester died in 1588, followed by Sir Walter Mildmay, the Chancellor of the Exchequer, a year later, and Sir Francis Walshingham a year after that.[49] In 1592 the Lord Chief Justice died, and, according to custom the Attorney General, John Popham, succeeded him, with the Solicitor General, Thomas Egerton, succeeding Popham. This created a vacancy among the Law Officers of the Crown, and thanks to the influence of the Cecil family, Coke became Solicitor General on 16 June 1592.[50] It is implied that this was a narrow victory, thanks to Coke's defence of unpopular clients, and he was summoned before Elizabeth I, who berated him to the point of tears before confirming him as Solicitor General.[50]

Coke held the position only briefly; by the time Coke returned from a tour of Norfolk to discuss election strategy, he had been confirmed as Speaker of the House of Commons by the Privy Council,[51] having been proposed by Francis Knollys and Thomas Heneage.[52] Although confirmed on 28 January 1593, he did not take up his post until the state opening of Parliament on 19 February 1593, a position he held at the same time as that of Solicitor General.[52] After "disabling" himself in the House of Lords (a ceremony in which the incoming Speaker apologised for his failings) Parliament was suspended until 24 February;[53] Coke returned two days later, having suffered from a stomach problem.[54] The Parliament was intended to be a brief and simple one; with the Black Death resurgent throughout England and the threat of Spain on the horizon, the only matter was to impose certain taxes to fund the Queen's campaign against the Spanish, with no bills to be introduced. The taxes were paramount; subsidies collected in 1589 had been collected, spent, and the war continued.[55]

The idea of a peaceful, swift Parliament was not to be, due to religious problems. On 27 February James Morice, a Puritan Member of Parliament, proposed two new bills; one against the bishops of the Church of England, and the other against the Court of High Commission. Morice was placed under house arrest, and seven Members of Parliament were later arrested, but the bills remained in Parliament.[56] They were defended by Francis Knollys, one of the few remaining Puritan Members of Parliament, while other Puritans spat and coughed to drown out speeches by opponents.[57] Coke and Robert Cecil, the government's two strongest defenders in Parliament, made several efforts to put off or end the debate over the bills. Cecil first pointed out that the Queen had forbidden bills on religion; Parliament ignored him, and the bill went ahead. Coke, as Speaker of the House of Commons (whose job was to introduce any bills) conducted a delaying campaign, first suggesting that the bill was too long to be read in the morning and then that it be delegated to a committee; both suggestions were voted down by the Commons. Coke continued talking until the end of the Parliamentary day in a filibuster action, granting a day of respite for the government.[58] Immediately afterwards, Coke was summoned by the Queen, who made it clear that any action on the bills would be considered evidence of disloyalty. The warning was accepted by the Commons, and no more action was taken on the two Puritan bills.[59]

Attorney General

A portrait of Robert Devereux, who is portrayed wearing a silver shirt.  He has shoulder-length black hair and a brown beard which reaches down to his collar.  Devereux is wearing a medal suspended from a green ribbon.
Robert Devereux, Cecil and Coke's main political rival

On 10 April 1594, Coke was made Attorney General for England and Wales thanks to his partnership with the Cecil family; Francis Bacon, his rival, was supported by Robert Devereux, who waged a constant war against Robert Cecil for control of the English government.[60] The position of Master of the Rolls had opened up in April 1593, and Coke was expected to be appointed according to convention; Bacon, therefore, would become Attorney General. Coke reacted by becoming even more dogmatic in his actions on behalf of the crown, and when Devereux approached Elizabeth I on Bacon's behalf, she replied that even Bacon's uncle considered him the second best candidate, after Coke.[61] The Attorney General was the main prosecutor of the crown, expected to bring all charges on its behalf and serve as its legal advisor in any situation. Coke was appointed in a time of particular difficulties; as well as famine and the conflict with Spain, war had recently broken out in Ireland.[62]

Coke primarily dealt with matters of treason, such as the cases of Sir John Smythe and Edward Squire,[63] along with religious incidents such as the disputes between the Jesuits and the Church of England, personally interrogating John Gerard after his capture.[64] As the 1590s continued the infighting between Cecil and Devereux persisted, with Devereux's raid on Cadiz earning him national fame. In March 1599 Devereux was sent to defeat the growing rebellion in Ireland, and was given command of 18,000 men – by November his army consisted of 4,000, the rest "frittered away" in exchange for "[conquering] nothing".[65] On 5 June 1600 he faced a panel of Privy Councillors, judges and members of the nobility at York House, where he was charged with appointing generals without the Queen's permission, ignoring orders and negotiating "very basely" with the leader of the rebel forces. While the members of the nobility wished to be gentle with Devereux, the lawyers and judges felt differently, recommending fines and confinement in the Tower of London.[66] In the end a compromise was reached; Devereux was put under house arrest and dismissed from all his government offices.[67]

Devereux immediately began plotting rebellion. Orders were sent out for "bedding" and "draperies" – code for weapons – and rebellious gentlemen gathered at Essex House to hear him talk of Elizabeth's "crooked mind and crooked carcass".[68] In reaction, Coke and Cecil began a counter-plot. In 1599 Sir John Hayward had written and published The First Part of the Life and Raigne of King Henrie IV, dedicating it to Devereux. Elizabeth, furious, had banned the book, suggesting that it was a "seditious prelude" intended to show her as a corrupt and poor monarch. Against the backdrop of Devereux's plot, Coke and Cecil started a new investigation into the book, hoping to prove some involvement of Devereux in the publishing. Coke interviewed Hayward's licensing cleric, Samuel Harsnett, who complained that the dedication had been "foisted" on him by Devereux. In reaction, Coke decided to bring charges of treason against Devereux, saying that he had "plotted and practised with the Pope and king of Spain for the deposing and selling of himself as well as the crown of England... His permitting underhand that treasonable book of Henry IV to be printed and published; it being plainly deciphered, not only by the matter, and by the epistle itself, for what end and for whose behalf it was made, but also the Earl himself being present so often at the playing thereof, and with great applause giving countenance to it".[69]

The charges were never brought, as on 8 February 1601 Devereux ordered his followers to meet at Essex House. A day later a group of emissaries led by Thomas Egerton and John Popham were sent to him, and taken hostage.[70] He then took his 300-strong force out into London, hoping to gather support. When this failed to appear, he turned back to Essex House, hoping to use his hostages as a negotiation tool. On the way he ran into a company of pikemen led by Richard Bancroft, and after a "half-hearted" charge Devereux's forces retreated. By dusk Elizabeth's forces surrounded Essex House, and after burning his personal papers, Devereux surrendered.[71] On 19 February he was tried, along with the Earl of Southampton, for treason; Coke led the case for the government.[72] Devereux was found guilty and executed; the Earl of Southampton reprieved.[73]

James I

A head-and-shoulders portrait of Sir Walter Raleigh.  He is wearing an extremely large ruff, and has his hair done up in curls. Underneath the ruff, he is wearing a black shirt.
Sir Walter Raleigh, whom Coke prosecuted for treason

On 24 March 1603, Elizabeth I died. James VI of Scotland set out to claim the English throne as James I of England, and the Cokes immediately began ingratiating themselves with the new royals. Elizabeth Hatton, Coke's wife, travelled to Scotland itself to meet Anne of Denmark, the incoming Queen, and "the high-tempered beauty somehow pleased that withdrawn, strong-willed woman ... for as long as Anna lived ... Lady Hatton and her husband would retain the queen's affection and trust".[74] Coke himself attended divine service with the new King on 22 May, who, following the service, took a sword from his bodyguard and knighted Coke.[75] Coke was reconfirmed as Attorney General under James, and immediately found himself dealing with "a series of treasons, whether real or imaginary".[76] The first of these was the trial of Sir Walter Raleigh; according to one of Coke's biographers, "There is, perhaps, no reported case in which the proofs against the prisoner were weaker than in this trial ... never was an accused person condemned on slighter grounds".[77]

Raleigh was brought to trial on 17 November 1603, on charges of "conspiring to deprive the King of his Government; to alter religion; to bring in the Roman superstition; and to procure foreign enemies to invade the kingdom".[78] The government alleged that on 11 June 1603, Raleigh had met with Lord Cobham and they had agreed to bring Lady Arbella Stuart to the English throne, and to accept 600,000 marks from the Spanish government. As such, Raleigh was charged with supporting Stuart's claim to the throne and claiming Spanish money.[79] He pleaded not guilty, with Coke's only evidence being a confession from Cobham, who was described as "a weak and unprincipled creature ... who said one thing at one time, and another thing in another, and could be relied upon in nothing".[80] This case was "no case at all ... It supports the general charges in the indictment only by the vaguest possible reference to 'these practices,' and 'plots and invasions' of which no more is said".[81]

Coke's behaviour during the trial has been repeatedly criticised; on this weak evidence, he called Raleigh a "notorious traitor", "vile viper" and "damnable atheist", perverting the law and using every slip of the tongue as a way of further showing Raleigh's guilt.[82] Raleigh was found guilty, and imprisoned in the Tower of London for over a decade before finally being executed.[83] It is generally concluded that the trial was biased strongly against Raleigh,[84] although the assessment of Coke varies. While Magruder, in the Scottish Law Review, writes that Coke's "fair fame was tarnished and outraged" by his part in the trial,[85] Boyer notes that Coke was, above all, loyal. He prosecuted Raleigh in that fashion because he had been asked to show Raleigh's guilt by the King, and as Attorney General, Coke was bound to obey.[86]

The next significant government prosecution was the trial of the eight main Gunpowder Plot conspirators in Westminster Hall. The men were indicted on 27 January 1605,[87] and tried by the Lords Commissioners.[88] Coke conducted the prosecution for the government – an easy one, since the conspirators had no legal representation – and through his speeches, "blacken[ed] them in the eyes of the world".[89] The conspirators were all sentenced to death, and died through various means. Due to his judicial appointment, this was the last important prosecution Coke participated in.[90]

Judicial work

Coke's first judicial postings came under Elizabeth; in 1585, he was made Recorder of Coventry, in 1587 Norwich, and in 1592 Recorder of London, a position he resigned upon his appointment as Solicitor General.[91]

Common Pleas

On 20 June 1606, Coke was made a Serjeant-at-Law, a requirement for his elevation to Chief Justice of the Common Pleas,[92] which occurred on 30 June.[93] His conduct is noted as "from the first, excellent; ever perfectly upright and fearlessly independent", although the convention of the day was that the judges held their positions only at the pleasure of the monarch.[94] A biographer of Francis Bacon noted that "The most offensive of Attorney Generals transformed into the most admired and venerated of Judges".[95] Some assert that Coke became Chief Justice due to his prosecutions of Raleigh and the Gunpowder Plot conspirators, but there is no evidence to support this; instead, it was traditional at the time that a retiring Chief Justice would be replaced with the Attorney General.[96]

Court of High Commission

A head-and-shoulders portrait of Richard Bancroft. The portrait portrays Bancroft on a grey background, wearing a white shirt with a black vest. Bancroft is wearing a black cap and has collar length brown hair. Over Bancroft's left shoulder is a red and brown family crest
Richard Bancroft, who led the Court of High Commission during Coke's attacks on it

Coke's changed position from Attorney General to Chief Justice allowed him to openly attack organisations he had previously supported. His first target was the Court of High Commission, an ecclesiastical court established by the monarch with near unlimited power; it administered a mandatory ex officio oath that deliberately trapped people.[97] The High Commission was vastly unpopular amongst both common lawyers and Members of Parliament, as the idea of "prerogative law" challenged both authorities. The appointment of Richard Bancroft as Archbishop of Canterbury in 1604 caused the issue to grow in importance; Bancroft's zeal and strictness "could hardly fail to produce an atmosphere in which principles and issues would crystallize, in which logic would supplant reasonableness".[98] The judges, particularly Coke, began to unite with Parliament in challenging the High Commission. The High Commission tried people for heresy, based on their private thoughts and beliefs, in "a trap to catch unwary or ingenuous men – 'an unlawful process of poking about in the speculation of finding something chargeable' ".[99] In 1607 Parliament openly asked for Coke's opinion on the High Commission's practices; he replied that "No man ecclesiastical or temporal shall be examined upon secret thoughts of his heart or of his secret opinion".[100]

During this period a "notorious suit" ran through the courts, known as Fuller's Case after the defending barrister, Nicholas Fuller. Fuller had several clients fined by the High Commission for non-conformity, and stated that the High Commission's procedure was "popish, under jurisdiction not of Christ but of anti-Christ". For this, Fuller was held in custody for contempt of court. The Court of King's Bench argued that this was a lay matter, while the High Commission claimed it fell under their jurisdiction. Coke had no official role, other than acting as a mediator between the two, but in the end Fuller was convicted by the High Commission. This was a defeat for the common law, and in response Coke spent the summer issuing writs of prohibition to again challenge Bancroft and the High Commission. On 6 November 1608, the common law judges and members of the High Commission were summoned before the King and told that they would argue and allow him to decide.[101] Unable to even argue properly, instead "[standing] sullen, merely denying each others' statements", the group were dismissed and reconvened a week later. Coke, speaking for the judges, argued that ecclesiastical courts only had jurisdiction as long as no temporal matters were involved; once this happened, it became a matter for the common law courts.[102]

At this point the King's own position in relation to the law, and his authority to decide this matter, was brought up, in what became known as the Case of Prohibitions. James stated that "In cases where there is not express authority in law, the King may himself decide in his royal person; the Judges are but delegates of the King". Coke challenged this, saying "the King in his own person cannot adjudge any case, either criminal – as treason, felony etc, 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". Coke further stated that "The common law protecteth the King", to which James replied "The King protecteth the law, and not the law the King! The King maketh judges and bishops. If the judges interpret the laws themselves and suffer none else to interpret, they may easily make, of the laws, shipmen's hose!". Coke rejected this, stating that while the monarch was not subject to any individual, he was subject to the law. Until he had gained sufficient knowledge of the law, he had no right to interpret it; he pointed out that such knowledge "demanded mastery of an artificial reason ... which requires long study and experience, before that a man can attain to the cognizance of it".[103] Coke was only saved from imprisonment by Robert Cecil, who pleaded with the King to show leniency, which he granted. After the conclusion of this dispute, Coke freely left, and continued to issue writs of prohibition against the High Commission.[104]

Dr. Bonham's Case

Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case was a decision of the Court of Common Pleas under Coke in which he ruled that "in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void".[2] Coke's meaning has been disputed over the years; some interpret his judgment as referring simply to judicial review of statutes to correct misunderstandings which would render them unfair,[105] while others argue he meant that the common law courts have the power to completely strike down those statutes they deem to be repugnant.[106][107]

Whatever Coke's meaning, after an initial period of application, Bonham's Case was thrown aside in favour of the growing doctrine of Parliamentary sovereignty. Initially written down by William Blackstone, this theory makes Parliament the sovereign law-maker, preventing the common law courts from not only throwing aside but also reviewing statutes in the fashion Coke suggested.[108] Parliamentary sovereignty is now the universally-accepted judicial doctrine in England and Wales.[109] Bonham's Case met a mixed reaction at the time, with the King and Lord Ellesmere both deeply unhappy with it.[110] 19th and 20th century academics are scarcely more favourable, calling it "a foolish doctrine alleged to have been laid down extra-judicially",[111] and simply an "abortion".[112]

In the United States, Coke's decision met with a better reaction. During the legal and public campaigns against the writs of assistance and Stamp Act 1765, Bonham's Case was given as a justification for nullifying the legislation,[113] and Marbury v. Madison, the American case which forms the basis for the exercise of judicial review in the United States under Article III of the Constitution, uses the words "void" and "repugnant", seen as a direct reference to Coke.[114] Academics have argued that Coke's work in Bonham's Case forms the basis of judicial review and the declaration of legislation as unconstitutional in the United States;[115] another calls this "one of the most enduring myths of American constitutional law and theory, to say nothing of history", pointing out that at no point during the Constitutional Convention was Bonham's Case referenced.[116]

King's Bench

Coke was transferred from the Common Pleas to the Court of King's Bench on 25 October 1613, on the advice of Bacon, presumably because Bacon and the king felt that if he was moved from a court dedicated to protecting the rights of the people to one dedicated to the rights of the king, "his capacity for harm would be diminished".[117] From Bacon's point of view, the King's Bench was a far more precarious position for someone loyal to the common law rather than the monarch.[118] Coke's first case of note was Peacham's Case, in which he dictated that the writing of a sermon by Thomas Peacham which advocated the death of the king – a sermon which was never preached or published – could not constitute treason. The King was unwilling to accept this decision and instead had him tried by Coke's opponents on the bench, who "not surprisingly" had him found guilty.[119] Refusing to admit his guilt, Peacham was tortured on the rack,[120] but "before torture, between torture and after torture; nothing could be drawn from him".[121]

In 1616, two years after Peacham's Case, the case of commendams arose. The in commendam writ was a method of transferring ecclesiastical property, which James I used in this case to allow Richard Neile to maintain his bishopric and associated revenues without actually performing the duties. On 25 April 1616 the courts, at Coke's bidding, held that this action was illegal, writing to the King that "in case any letters come unto us contrary to law, we do nothing by such letters, but certify your Majesty thereof, and go forth to do the law notwithstanding the same".[122] James called the judges before him and, furious, ripped up the letter, patronisingly telling them that "I well know the true and ancient common law to be the most favourable to Kings of any law in the world, to which law I do advise you my Judges to apply your studies". While all the other judges "succumbed to royal pressure and, throwing themselves on their knees, prayed for pardon", Coke defended the letter and stated that "When the case happens I shall do that which shall be fit for a judge to do".[123]

This was the last straw; bowing to pressure and advice from Bacon, who had long been jealous of Coke, James I suspended Coke from the Privy Council, forbade him from going on circuit and, on 14 November, dismissed him from his post as Chief Justice of the King's Bench. This was greeted by "deep resentment" in the country, which saw the King's actions as him tampering with justice. Coke himself reacted by sinking into a deep depression.[124] James I then ordered Coke to spend his time "expunging and retracting such novelties and errors and offensive conceits as are dispersed in his Reports". Bacon, now in royal favour, became Lord Chancellor on 3 March 1617 and set up a commission to "purge" the Reports, also using his authority to expand the powers of the High Commission.[125] With James unable to declare Coke incompetent, some "colorable excuses" were produced to justify Coke's dismissal; he was accused of concealing £12,000,[126] uttering "high words of contempt" as a judge, and declaring himself Chief Justice of England.[127]

Return to politics

Now out of favour and with no chance of returning to the judiciary, Coke was elected MP for Liskeard, ironically by order of the King, who "expected support from Privy Councillor Coke and had no inkling of the trouble he was bringing on his own head". Elected in 1620, Coke sat for the 1621 Parliament, which was called by the King to raise revenues; other topics of discussion included a proposed marriage between the Prince of Wales and Maria Anna of Spain, and possible military support for the King's son-in-law, Frederick V, Elector Palatine.[128] Coke became a leading opposition MP, along with Robert Phelips, Thomas Wentworth and John Pym, campaigning against any military intervention and the marriage of the Prince of Wales and Maria Anna.[129] His position at the head of the opposition was unsurprising given his extensive experience in both local and central government, as well as his ability to speak with authority on matters of economics, parliamentary procedure and the law.[130]

Monopolies

Coke used his role in Parliament as a leading opposition MP to attack patents, a system he had already criticised as a judge. Historically, English patent law was based on custom and the common law, not on statute. It began as the Crown granted patents as a form of economic protection to ensure high industrial production. As gifts from the crown, there was no judicial review, oversight or consideration, and no actual law developed around patents.[131] To boost England's economy, Edward II began encouraging foreign workmen and inventors to settle in England, offering "letters of protection" that protected them from guild policy on the condition that they train English apprentices and pass on their knowledge. The first recorded letter of protection was given in 1331. The letters did not grant a full monopoly; rather they acted as an extended passport, allowing foreign workers to travel to England and practice their trade.[132] This process continued for three centuries, with formal procedures set out in 1561 to issue letters patent to any new industry, allowing monopolies.[133] The granting of these patents was highly popular with the monarch because of the potential for raising revenue; A patentee was expected to pay heavily for the patent, and unlike a tax raise (another method of raising Crown money) any public unrest as a result of the patent was normally directed at the patentee, not the monarch.[134]

Over time, this system became more and more problematic; instead of temporary monopolies on specific, imported industries, long-term monopolies came about over more common commodities, including salt and starch. These "odious monopolies" led to a showdown between the Crown and Parliament, in which it was agreed in 1601 to turn the power to administer patents over to the common law courts;[135] at the same time, Elizabeth revoked a number of the more restrictive and damaging monopolies.[136] Even given a string of judicial decisions criticising and overruling such monopolies, James I, when he took the throne, continued using patents to create monopolies. Coke used his position in Parliament to attack these patents, which were "now grown like hydras' heads; they grow up as fast as they are cut off".[137] Coke succeeded in establishing the Committee of Grievances, a body chaired by him that abolished a large number of monopolies. This was followed by a wave of protest at the expansion of the system. On 27 March 1621, James suggested the House of Commons draw up a list of the three most objectionable patents, and he would "give Life to it, without alteration", but by this time a statute was already being prepared by Coke.[138] After passing on 12 May it was thrown out by the House of Lords, but a Statute of Monopolies was finally passed by Parliament on 25 May 1624.[139]

In response to both this and Coke's establishment of a sub-committee to establish freedom of speech and discuss the rights of the Commons, James announced that "you usurp upon our prerogative royal and meddle with things far above your reach". He first adjourned Parliament and then forbade the Commons from discussing "matters of state at home or abroad".[140] Ignoring this ban, Parliament issued a "Remonstrance to the King" on 11 December 1621, authored by Coke, in which they restated their liberties and right to discuss matters of state, claiming that such rights were the "ancient and undoubted birthright and inheritance of the subjects of England". After a debate, it was sent to James, who rejected it; the Commons instead resolved to enter it into the Journal of the Commons, which required no royal authorisation. The King reacted by, in the presence of Parliament, tearing the offending page from the Journal, declaring that it should be "razed out of all memories and utterly annihilated", and dissolving Parliament.[141] Coke was then imprisoned in the Tower of London from 27 December before being released nine months later.[142]

Liberty and the Resolutions

A portrait of John Selden. Selden blends into the brown background of the portrait, however; his face is visible. He has brown eyes and shoulder-length brown hair. He has a serious look on his face
John Selden, who, along with Coke, presented the Resolutions to the House of Lords

James died on 27 March 1625 and was succeeded by his son, who became Charles I of England. Coke was briefly restrained from acting in Parliament by Charles; he was made High Sheriff of Buckinghamshire by the King in 1625, which prohibited him from sitting in Parliament until his term expired a year later.[143] Following his father's example, Charles raised loans without Parliament's sanction and imprisoned without trial those who would not pay. The common law judges declared this to be illegal, and the Chief Justice Sir Ranulph Crewe was dismissed; at this, the remaining judges succumbed to the King's pressure.[144] More and more people refused to pay, leading to Darnell's Case, in which the courts confirmed that "if no cause was given for the detention ... the prisoner could not be freed as the offence was probably too dangerous for public discussion".[145] The result of this was that wealthy landowners refused to pay the loan and the Crown's income fell below Charles's expectations, forcing him to call a fresh Parliament in March 1627. With popular anger at Charles's policies, many MPs were opposed to him, including Pym, Coke and a young Oliver Cromwell.[146]

Martial law was then declared, with continued imprisonment for a failure to pay the forced loans and soldiers billeted in the homes of private citizens to intimidate the population – something which led to Coke's famous declaration that "the house of an Englishman is to him as his castle".[147] The Commons responded to these measures by insisting that the Magna Carta, which expressly forbade the imprisonment of freemen without trial, was still valid. Coke then prepared the Resolutions, which later led to the Habeas Corpus Act 1679. These declared that Magna Carta was still in force, and that furthermore:

no freeman is to be committed or detained in prison, or otherwise restrained by command of the King or the Privy Council or any other, unless some lawful cause be shown ... the writ of habeas corpus cannot be denied, but should be granted to every man who is committed or detained in prison or otherwise restrained by the command of the King, the Privy Council or any other ... Any freeman so committed or detained in prison without cause being stated should be entitled to bail or be freed.[148]

In addition, no tax or loan could be levied without Parliament's permission, and no private citizen could be forced into accepting soldiers into his home. Coke, John Selden and the rest of the Committee for Grievances presented the Resolutions to the House of Lords, with Coke citing seven statutes and 31 cases to support his argument. He told the Lords that "Imprisonment in law is a civil death [and] a prison without a prefixed time is a kind of hell ... the person, for all others are accessory to it".[149] The Lords, supportive of the King, were not swayed, and Charles himself eventually rejected the Resolutions formally, insisting that the Commons trust him.[150]

Petition of Right

A mono-color circular portrait of Edward Coke, portraying him dressed in a ruffled collar. He has a black cap on his head and a goatee
Coke at the time of the Petition of Right's passage

Coke then undertook the central role in framing and writing the Petition of Right. The ongoing struggles over martial law and civil liberties, along with the rejection of the Resolutions seriously concerned the Commons. Accordingly, Coke convinced the Lords to meet with the Commons in April 1628 in order to discuss a petition to the King confirming the rights and liberties of royal subjects. The Commons immediately accepted this, and after a struggle, the Lords agreed to allow a committee chaired by Coke to draft the eventual document.[151] Hearing of this, the King sent a message to Parliament forbidding the Commons from discussing matters of state. The resulting debate led to some MPs being unable to speak due to their tears, fearing that the King was threatening them with the destruction of Parliament. Coke, despite the fear in Parliament, stood and spoke, citing historical precedents supporting the principle that members of the Commons could, within Parliament, say whatever they wished – something now codified as Parliamentary privilege.[152]

The Petition of Right was eventually affirmed by the Commons and sent to the Lords, who approved it on 17 May;[153] the document's publication was met with bonfires and the ringing of churchbells throughout England.[154] As well as laying out a long list of statutes which had been broken, it proclaimed various "rights and liberties" of free Englishmen, including a freedom from taxation without Parliamentary approval, the right of habeas corpus, a prohibition on soldiers being billeted in houses without the owner's will, and a prohibition on imposing martial law on civilians. It was later passed into formal law by the Long Parliament in 1641 and became one of the three constitutional documents of English civil liberties, along with the Magna Carta and the Bill of Rights 1689.[155]

Retirement

When Parliament was dissolved in 1629, Charles took the decision to govern without one, and Coke effectively retired to his estate at Stoke Poges, spending his spare time making revisions to his written works.[156] He made no attempt to return to politics, stating that the Petition of Right would be left as his "greatest inheritance"; his desire to complete his writings and advanced age may also have been factors.[157] Coke was still in good health, despite his advanced age, and took daily exercise. Following an accident in which his horse fell on him, he refused to consult doctors, saying that he had "a disease which all the drugs of Asia, the gold of Africa, nor all the doctors of Europe could cure – old age", and instead chose to remain confined to the house without medical treatment. As he was on his deathbed the Privy Council ordered for his house and chambers to be searched, seizing 50 manuscripts, which were later restored – his will, however, was permanently lost.[158]

Coke died on 3 September 1634, aged 82, and lay in state for a full month at his home in Godwick to allow for friends and relatives to view the body.[159] He was buried in St Mary's Church, Tittleshall. His grave is covered by a marble monument with his effigy lying on it in full judicial robes, surrounded by eight shields holding his coat of arms.[160] A Latin inscription on the monument identifies him simply as "Father of twelve children and thirteen books"; a second inscription, in English, gives a brief chronicle of his life and ends by stating that "His laste wordes [were] thy kingdome come, thye will be done. Learne, reader to live so, that thou may'st so die".[161] Coke's estates, including Holkham Hall, passed to his son Henry.[162]

Personal life

An image of Thomas Coke, Edward Coke's descendant. He is seated at a table with a pen in one hand and a scroll in the other. There are bookshelves in the background.
Coke of Norfolk, a noted agricultural reformer and Coke's direct descendant through his son, Henry

On 13 August 1582 Coke married Bridget Paston, daughter of John Paston, a Counsellor from Norwich.[163] Paston came from a long line of lawyers and judges – his great grandfather, William Paston, was a Justice of the Court of Common Pleas.[163] Having grown up nearby Coke knew the family, and asked for Bridget's hand immediately after she turned eighteen. At the time he was a thirty-one year old barrister with a strong practice, and her father had no qualms about accepting his offer.[164] Six months after they married John Paston died, leaving his daughter and son-in-law his entire estate and several of his clients.[164] Bridget maintained a diary, which reveals that she mainly ran the household. Despite this she was an independent woman,[165] travelling without her husband and acting as a helpmate to Coke.[166] Paston was noted as an "incomparable" woman who had "inestimable value clearly manifested by the eulogies which are lavished on her character".[167] The couple settled at the manor of Huntingfield, descrbed as "enchanting, with a legend for every turret ... A splendid gallery ran the length of the house, the Great Hall was built around six massive oaks which supported the roof as they grew".[168]

The couple had ten children – seven sons and three daughters. The sons were Edward, Robert, Arthur, John, Henry, Clement and Thomas. Edward died young, Robert became a Knight Bachelor and married Theophile, daughter of Thomas Berkeley,[169] Arthur married Elizabeth, heir of Sir George Walgrave, John married Meriel, daughter of Anthony Wheately, Henry inherited the manor at Holkham from his father, Clement married Sarah, heiress of Alesxander Redich, and Thomas died as an infant.[170] The daughters were Elizabeth, Anne and Bridget. Elizabeth died young, Anne married Ralph Sadleir, son and heir of Sir Thomas Sadleir, and Bridget married William Skinner, son and heir of Sir Vincent Skinner.[171] Coke's descendants through Henry include the Earls of Leicester, particularly Coke of Norfolk, a landowner, Member of Parliament and agricultural reformer.[172]

After Bridget Paston died in 1598, Coke married Elizabeth Hatton, a desirable marriage due to her wealth; when he found out that Bacon was also pursuing her hand, Coke acted with all speed to complete the ceremony. It was held at a private house "at the wrong time", rather than at a church between 8 and 12 in the morning; all involved parties were prosecuted for breaching ecclesiastical law, and Coke had to make an "abject submission" to be pardoned.[173] Hatton and Coke had two children, both daughters; Elizabeth and Frances. Elizabeth died unmarried, while Frances married John Villiers, 1st Viscount Purbeck and died without children.[174] It is said that Coke first suggested marrying Hatton to Sir Robert Cecil, Hatton's uncle, at the funeral of Lord Burghley, Coke's patron; he needed to ensure that he would continue his rise under Burghley's son, Cecil, and did this by marrying into the family. Hatton was 26 years younger than Coke, hot-tempered and articulate; Boyer wrote that "if she and Coke were not compatible, at least they were well-matched".[175] Despite the marriage Coke was not buried next to Hatton, but instead next to Bridget Paston, who his daughter declared was Coke's "first and best wife".[176]

Writings

Coke is best known for his written work – firstly his thirteen volumes of law reports, and secondly his four-volume Institutes of the Lawes of England. John Marshall Gest, writing in the Yale Law Journal, notes that "There are few principles of the common law that can be studied without an examination of Coke's Institutes and Reports which summed up the legal learning of his time", although "the student is deterred by the too common abuse of Coke's character and the general criticism of his writings as dry, crabbed, verbose and pedantic".[177] John Campbell, in his The Lives of the Chief Justices of England, said that "His reasoning ... is narrow minded; [he had] utter contempt for method and style in his compositions",[178] and says that Coke's Reports were "tinctured with quaintness and pedantry".[179] Gest, noting this criticism, points out that:

Coke, like every man, was necessarily a product of the age in which he lived. His faults were the faults of his time, his excellencies those of all time. He was diffuse; he loved metaphor, literary quibbles and verbal conceits; so did Bacon, and so did Shakespeare. So did all the writers of his day. They were creative, not critical. But Coke as a law writer was as far superior in importance and merit to his predecessors, at least if we except Bracton, as the Elizabethan writers in general were superior to those whom they succeeded, and, as the great Elizabethans fixed the standard of our English tongue, so Coke established the common law on its firm foundation. A modern lawyer who heaps his abuse on Coke and his writings seems as ungrateful as a man who climbs a high wall by the aid of the sturdy shoulders of another and then gives his friend a parting kick in the face as he makes the final leap.[180]

Reports

The front cover of Coke's Reports. In the center, the title of the book ("Les Reports de Edward Coke") with a large subtitle. Around the outside is a collection of images, all centered around a pair of pillars.
The frontispiece to the first volume of Coke's Reports (1600)

His Law Reports, known as Coke's Reports, were an archive of law reports of cases he had participated in, watched or heard of, and started with notes he made as a law student in winter 1572; he started fully reporting cases in October 1579.[181] The Reports were initially written down in seven notebooks, four of which are still lost; the first notebook contains not only law reports, but also a draft version of Coke's first Institutes of the Lawes of England.[182] Coke began reporting cases "in the traditional manner", by copying out and repeating cases found in earlier law reports, such as those of Edmund Plowden. After being called to the Bar in 1578 he began attending court cases at Westminster Hall, and soon drew the attention of court officials – many early reports have notes that he was told "by old Plowden" or "by Wray CJ". The original reports were kept in a generally chronological order, interspersed with personal memos, obituaries and notes on court practices.[183] Nevertheless, they are not entirely chronological; during his career, Coke would note down earlier cases he had heard of or which had drawn his attention. These were noted down with the plea roll reference and the year in which Coke recorded them, but later editions failed to include the plea roll reference and led to inaccuracies.[184]

The Reports have gained significant academic acclaim; Theodore Plucknett, writing in the Cornell Law Quarterly, describes them as works of "incomparable richness" with a "profound influence upon the literature, and indeed the substance, of English law".[185] John Baker has described them as "perhaps the single most influential series of named reports",[4] and even Francis Bacon, Coke's rival, wrote praisingly of them, saying "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".[186]

Although lent to friends and family, and therefore in slight public circulation, Coke never formally published his entire Reports during his lifetime. Select cases were published in 1600, containing the most famous of his decisions and pleadings, while a second volume in 1602 was more chronological in nature.[187] The third part, published in the same year, was also chronological, while the fourth, published in 1604, was arranged by subject. The fifth part, published in 1605, is arranged similarly, as is the sixth, published in 1607.[188] Five more volumes were published until 1615, but Coke died before he could publish a single bound copy. No trace has been found of the draft manuscript.[189]

Some academics have questioned the accuracy of the Reports. Coke's famous Case of Proclamations, and his speech there, was first brought into the public consciousness through its inclusion in Volume 12 of his Reports, and Roland G. Usher, writing in the English Historical Review, notes that "Certain manuscripts at Hatfield House and elsewhere seem to throw some doubt upon this famous account of a famous interview".[190] One of the reasons given for possible inaccuracies in the later volumes of the Reports is that they were published posthumously. In July 1634, officials acting on order of the King had seized Coke's papers, and between then and a 1641 motion in the House of Commons restoring the papers "such as could be found" to Coke's eldest son, nobody knows precisely what happened to them. The twelfth and thirteenth volumes of the reports were thus based on fragments of notes several decades old, and not on Coke's original manuscript.[191]

Institutes

Coke's other main work was the Institutes of the Lawes of England, a four-volume treatise described as his "masterwork". The first volume, the Commentary upon Littleton, known as Coke on Littleton, was published in 1628;[192] it is "ostensibly" a commentary on Sir Thomas Littleton's Treatise on Tenures, but actually covered many areas of the law of his time. The other three volumes were all published after his death, and covered 39 constitutional statutes of importance (starting with the Magna Carta), the law relating to criminal law, and constitutional and administrative law respectively.[193] While the Reports were intended to give an explanation of the law chronologically, Coke's intentions with the Institutes were to provide an English language tutorial for those students studying law at the Inns of Court, as an alternative to the Roman law lectures at university, which were based on Latin;[194] "It was a double vision; the Institutes as authority, the Reports as illustration by actual practise".[195]

Part one, the Commentary upon Littleton, was undoubtedly the most famous; it was carried to the United States, where it was first printed domestically in 1812 – by this point the English version was in its sixteenth edition, and had been commented on itself by various later legal authorities.[196] As with the Reports, Coke's Institutes became a standard textbook in the United States, and were recorded in the law libraries of Harvard College in 1723 and Brown University in 1770; John Jay, John Adams, Theophilus Parsons and Thomas Jefferson were all influenced by it.[197] John Rutledge later wrote that "Coke's Institutes seems to be almost the foundations of our law", while Jefferson stated that "a sounder Whig never wrote more profound learning on in the orthodox doctrine of British liberties".[198] The Third Institutes has been described as "the first really adequate discussion of treason, a work which went far towards offering the remedy of a humanized common law to the injustices of trial procedures".[3]

The work was not without its detractors, however, with some writers criticising it for "repulsive pedantry" and "overbearing assertions", as well as incorrect citations to works that were later discredited.[199] There are also factual inaccuracies; Kenyon Homfray in the Ecclesiastical Law Journal notes that despite being considered the supreme legal authority on the subject of consecration, which he covered in the third volume of the Institutes, he offered no legal support for his opinion and ignored those pieces of case law which rejected his interpretation.[200]

Jurisprudence

Coke's jurisprudence centres around the hierarchy of the judges, the monarch and Parliament in making law. Coke argued that the judges of the common law were those most suited to making law, followed by Parliament, and that the monarch was bound to follow any legal rules. This was because a judge, through his professional training, internalised "what amounted to an infinity of wisdom", something that mere politicians or laypersons could not understand due to the complexity of the law.[201] Coke's Commentary on Littleton has been interpreted as deliberately obtuse, with his aim being to write "a sort of anti-textbook, a work whose very form denied that legal knowledge could be organised. The original edition could not be used for reference purposes, as Coke had published it without an index ... It is a book to be 'read in' and lived with, rather than consulted, a monument to the uselessness of merely written knowledge unless it is internalised in a trained professional mind".[202] This theory – that judges were the natural arbiters of the law – is known as the "appeal to reason", with "reason" referring not to rationality but the method and logic used by judges in upholding and striking down laws.[203] Coke's theory meant that certainty of the law and "intellectual beauty" was the way to see if a law was just and correct, and that the system of law could eventually become sophisticated enough to be predictable.[204]

John Selden held similar beliefs, in that he thought that the common law was the proper law of England. However, he argued that this did not necessarily create judicial discretion to play with it, and that proper did not necessarily equal perfect. The law was nothing more than a contract made by the English people; this is known as the "appeal to contract".[205] Thomas Hobbes, along with Francis Bacon, argued against Coke's theory. Instead, they were proponents of natural law, created by the King's authority, not by any individual judge. Hobbes felt that there was no skill unique to lawyers, and that the law could be understood not through Coke's "reason" (the method used by lawyers), but through understanding the King's instructions. While the judges did make law, this was only valid because it was "tacitly confirmed (because not disapproved) by the [King]".[206]

Legacy

Coke's challenge to the ecclesiastical courts and their ex officio oath is seen as the origin of the right to silence; with his decision that common law courts could issue writs of prohibition against such oaths, and his arguments that such oaths were contrary to the common law (as found in his Reports and Institutes), Coke "dealt the crucial blow to the oath ex officio and to the High Commission".[207] The case of John Lilburne later confirmed that not only was such an oath invalid, but that there was a right to silence, drawing from Coke's decisions in reaching that conclusion.[208] In the trial of Sir Roger Casement for treason, Coke's assertion that treason is defined as "giving aide and comfort to the King's enemies within the realme or without" was the deciding factor.[209] His work in Slade's Case led to the rise of modern contract law,[210] and his actions in the Case of Proclamations and the other pleadings which led to his eventual dismissal went some way towards securing judicial independence.[211] The Statute of Monopolies is considered one of the first steps towards the eventual English Civil War,[212] and also "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist".[213]

Outside of England and Wales, Coke was particularly influential in the United States, both before and after the American War of Independence. During the legal and public campaigns against the writs of assistance and Stamp Act 1765, Bonham's Case was given as a justification for nullifying the legislation,[113] and in the income tax case of 1895, Joseph Hodges Choate used Coke's argument that a tax upon the income of property is a tax on the property itself to have the Supreme Court of the United States declare the Wilson–Gorman Tariff Act unconstitutional, leading to the passage of the Sixteenth Amendment.[214] The Castle doctrine originates from Coke's statement in the Third Institutes that "A man's home is his castle – for where shall he be safe if it not be in his house?",[215] which also profoundly influenced the Fourth Amendment to the United States Constitution;[216] the Third Amendment, on the other hand, takes influence from the Petition of Right.[217]

Character

Coke was noted as deriving great enjoyment from the law, and working hard at it, but enjoying little else. While he knew Latin classics and maintained a sizeable estate, "these things were side matters", and the law was his main concern. Francis Bacon, his main competitor, was noted as a philosopher and man of learning, but Coke had no interest in such concepts. When given a copy of the Novum Organum by Bacon, Coke wrote "purile insulting remarks" in it.[218] Little is known of Coke's attitude and style as a barrister, but what evidence there is suggests it was a poor one. He was not alone here; most early lawyers were not noted for their eloquence, with Thomas Elyot writing that "[they] lacked elocution and pronunciation, two of the principal parts of rhetorike",[219] and Roger Ascham saying that "they do best when they cry loudest", describing a court case where an advocate was "roaring like a bull".[220] Coke in court was insulting to the parties, disrespectful to the judges and "rough, blustering, overbearing"; a rival once wrote to him saying "in your pleadings you were wont to insult over misery and to inveigh bitterly at the persons, which bred you many enemies".[221] Coke was pedantic and technical, something which saw him win many cases as a barrister, but when he became Attorney General "he showed the same qualities in a less pleasing form ... He was determined to get a conviction by every means in his power".[222]

Francis Watt, writing in the Juridicial Review, portrays this as his strongest characteristic as a lawyer; that he was a man who "having once taken up a point or become engaged in a case, believes in it with all his heart and soul, whilst all the time conscious of its weakness, as well as ready to resort to every device to bolster it up".[223] Writers have struggled to reconcile his achievements as a judge surrounding the rejection of executive power and the rights of man with his actions while Attorney General, with Gerald P. Bodet noting that his early career as a state prosecutor was one of "arrogance and brutality".[224]

References

  1. ^ Baker (2002) p.167
  2. ^ a b Williams (2006) p.111
  3. ^ a b Bodet (1970) p.471
  4. ^ a b Baker (2002) p.183
  5. ^ Woolrych (1826) p.7
  6. ^ a b Woolrych (1826) p.10
  7. ^ Boyer (2003) p.1
  8. ^ Randall (1955) p.430
  9. ^ a b c Boyer (2003) p.2
  10. ^ Boyer (2003) p.3
  11. ^ Block (1929) p.3
  12. ^ Boyer (2003) p.4
  13. ^ Boyer (2003) p.9
  14. ^ Boyer (2003) p.11
  15. ^ Block (1929) p.10
  16. ^ Block (1929) p.13
  17. ^ Boyer (2003) p.13
  18. ^ Boyer (2003) p.14
  19. ^ Boyer (2003) p.16
  20. ^ Woolrych (1826) p.19
  21. ^ Boyer (2003) p.17
  22. ^ Block (1929) p.21
  23. ^ Holdsworth (1935) p.332
  24. ^ Woolrych (1826) p.21
  25. ^ Boyer (2003) p.28
  26. ^ Boyer (2003) p.29
  27. ^ Block (1929) p.33
  28. ^ Boyer (2003) p.27
  29. ^ Block (1929) p.39
  30. ^ Boyer (2003) p.30
  31. ^ Boyer (2003) p.34
  32. ^ Holdsworth (1935) p.333
  33. ^ Woolrych (1826) p.22
  34. ^ Polson (1840) p.167
  35. ^ Pound (2006) p.31
  36. ^ Block (1929) p.51
  37. ^ Woolrych (1826) p.23
  38. ^ a b Boyer (2003) p.36
  39. ^ a b Block (1929) p.52
  40. ^ Woolrych (1826) p.24
  41. ^ a b Block (1929) p.53
  42. ^ Block (1929) p.58
  43. ^ a b c Boyer (2003) p.37
  44. ^ a b Boyer (2003) p.38
  45. ^ Boyer (2003) p.115
  46. ^ Boyer (2003) pp.125–133
  47. ^ Sacks (2001) p.30
  48. ^ a b Boyer (2003) p.39
  49. ^ Boyer (2003) p.215
  50. ^ a b Boyer (2003) p.216
  51. ^ Boyer (2003) p.218
  52. ^ a b Block (1929) p.61
  53. ^ Block (1929) p.62
  54. ^ Boyer (2003) p.221
  55. ^ Boyer (2003) p.219
  56. ^ Block (1929) p.64
  57. ^ Boyer (2003) p.223
  58. ^ Boyer (2003) p.224
  59. ^ Boyer (2003) p.225
  60. ^ Boyer (2003) p.242
  61. ^ Boyer (2003) p.244
  62. ^ Boyer (2003) p.254
  63. ^ Boyer (2003) p.260
  64. ^ Boyer (2003) p.267
  65. ^ Boyer (2003) p.276
  66. ^ Woolrych (1826) p.53
  67. ^ Boyer (2003) p.277
  68. ^ Boyer (2003) p.278
  69. ^ Boyer (2003) p.279
  70. ^ Johnson (1845) p.41
  71. ^ Boyer (2003) p.282
  72. ^ Johnson (1845) p.138
  73. ^ Boyer (2003) p.285
  74. ^ Boyer (2003) p.294
  75. ^ Boyer (2003) p.296
  76. ^ Johnson (1845) p.155
  77. ^ Johnson (1845) p.157
  78. ^ Stephen (1919) p.172
  79. ^ Johnson (1845) p.173
  80. ^ Magruder (1879) p.845
  81. ^ Stephen (1919) p.175
  82. ^ Magruder (1879) p.848
  83. ^ Magruder (1879) p.849
  84. ^ Stephen (1919) p.178
  85. ^ Magruder (1879) p.844
  86. ^ Boyer (2003) p.212
  87. ^ Woolrych (1826) p.70
  88. ^ Jardine (1847) p.115
  89. ^ Johnson (1845) p.181
  90. ^ Johnson (1845) p.210
  91. ^ Johnson (1845) p.71
  92. ^ Johnson (1845) p.215
  93. ^ Sainty (1993) p.49
  94. ^ Johnson (1845) p.222
  95. ^ Bowen (1957) p.251
  96. ^ Woolrych (1826) p.74
  97. ^ Bowen (1957) p.252
  98. ^ Waite (1959) p.146
  99. ^ Bowen (1957) p.256
  100. ^ Bowen (1957) p.257
  101. ^ Bowen (1957) p.260
  102. ^ Bowen (1957) p.261
  103. ^ Loveland (2009) p.87
  104. ^ Bowen (1957) p.263
  105. ^ Gray (1972) p.36
  106. ^ Berger (1969) p.527
  107. ^ Orth (1999) p.33
  108. ^ Plucknett (2004) p.176
  109. ^ Elliott (2004) p.546
  110. ^ Bowen (1957) p.170
  111. ^ Orth (1999) p.37
  112. ^ Allott (1990) p.379
  113. ^ a b Morris (1940) p.429
  114. ^ Feldman (2004) p.29
  115. ^ Corwin (1929) p.371
  116. ^ McDowell (1993) pp.395–397
  117. ^ Holdsworth (1935) p.335
  118. ^ Woolrych (1826) p.88
  119. ^ Hostettler (1997) p.84
  120. ^ Caldecote (1941) p.318
  121. ^ Corwin (1930) p.5
  122. ^ Hostettler (1997) p.90
  123. ^ Hostettler (1997) p.91
  124. ^ Hostettler (1997) p.93
  125. ^ Hostettler (1997) p.95
  126. ^ Woolrych (1826) p.117
  127. ^ Woolrych (1826) p.119
  128. ^ Hostettler (1997) p.103
  129. ^ Hostettler (1997) p.104
  130. ^ White (1979) p.45
  131. ^ Pila (2001) p.210
  132. ^ Klitzke (1959) p.624
  133. ^ Pila (2001) p.212
  134. ^ Ramsey (1936) p.7
  135. ^ Pila (2001) p.213
  136. ^ Ramsey (1936) p.8
  137. ^ Hostettler (1997) p.106
  138. ^ Kyle (1998) p.206
  139. ^ Klitzke (1959) p.649
  140. ^ Hostettler (1997) p.111
  141. ^ Hostettler (1997) p.112
  142. ^ Hostettler (1997) p.114
  143. ^ White (1979) p.213
  144. ^ Hostettler (1997) p.125
  145. ^ Hostettler (1997) p.126
  146. ^ Hostettler (1997) p.127
  147. ^ Hostettler (1997) p.128
  148. ^ Hostettler (1997) p.129
  149. ^ Hostettler (1997) p.130
  150. ^ Hostettler (1997) p.132
  151. ^ Hostettler (1997) p.135
  152. ^ Hostettler (1997) p.137
  153. ^ Johnson (1865) p.237
  154. ^ Hostettler (1997) p.139
  155. ^ Hostettler (1997) p.138
  156. ^ Hostettler (1997) p.143
  157. ^ White (1979) p.275
  158. ^ Hostettler (1997) p.145
  159. ^ Bowen (1957) p.461
  160. ^ Hostettler (1997) p.146
  161. ^ Bowen (1957) p.462
  162. ^ Hostettler (1997) p.148
  163. ^ a b Block (1929) p.56
  164. ^ a b Block (1929) p.57
  165. ^ Boyer (2003) p.210
  166. ^ Boyer (2003) p.211
  167. ^ Woolrych (1826) p.26
  168. ^ Bowen (1957) p.64
  169. ^ Bowen (1957) p.298
  170. ^ Woolrych (1826) p.12
  171. ^ Woolrych (1826) p.11
  172. ^ Stirling (2008) p.501
  173. ^ Watt (1915) p.261
  174. ^ Woolrych (1826) p.17
  175. ^ Boyer (2003) p.213
  176. ^ Boyer (2003) p.214
  177. ^ Gest (1909) p.505
  178. ^ Campbell (2005) p.239
  179. ^ Campbell (2005) p.289
  180. ^ Gest (1909) p.506
  181. ^ Baker (1972) p.59
  182. ^ Baker (1972) p.61
  183. ^ Baker (1972) p.67
  184. ^ Baker (1972) p.68
  185. ^ Plucknett (1941) p.190
  186. ^ Coquillette (1992) p.108
  187. ^ Baker (1972) p.72
  188. ^ Baker (1972) p.73
  189. ^ Baker (1972) p.75
  190. ^ Usher (1903) p.664
  191. ^ Usher (1903) p.665
  192. ^ Woolrych (1826) p.175
  193. ^ Boyer (2004) p.xiii
  194. ^ Hostettler (1997) p.159
  195. ^ Bowen (1957) p.438
  196. ^ Bowen (1957) p.439
  197. ^ Bowen (1957) p.443
  198. ^ Ryan (2005) p.9
  199. ^ Bowen (1957) p.444
  200. ^ Homfray (2009) p.6
  201. ^ Cromartie (1995) p.14
  202. ^ Cromartie (1995) p.15
  203. ^ Cromartie (1995) p.17
  204. ^ Cromartie (1995) p.19
  205. ^ Cromartie (1995) p.32
  206. ^ Cromartie (1995) p.99
  207. ^ Randall (1955) p.444
  208. ^ Randall (1955) p.453
  209. ^ Glenn (1931) p.451
  210. ^ Boyer (2004) p.226
  211. ^ Boyer (2004) p.227
  212. ^ Kyle (1998) p.203
  213. ^ Bloxam (1957) p.157
  214. ^ Glenn (1931) p.449
  215. ^ Campbell (1991) p.81
  216. ^ Franklin (1991) p.29
  217. ^ Kemp (2010) p.26
  218. ^ Watt (1915) p.252
  219. ^ Polson (1840) p.164
  220. ^ Polson (1840) p.163
  221. ^ Polson (1840) p.168
  222. ^ Watt (1915) p.254
  223. ^ Watt (1915) p.257
  224. ^ Bodet (1970) p.470

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Legal offices
Preceded by
Sir Thomas Fleming
Lord Chief Justice
1613–1616
Succeeded by
Henry Montagu
Preceded by
Sir Francis Gawdy
Chief Justice of the Common Pleas
1606–1613
Succeeded by
Sir Henry Hobart
Political offices
Preceded by
Thomas Snagge
Speaker of the House of Commons
1592–1593
Succeeded by
Sir Christopher Yelverton

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