Edward Coke
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Sir Edward Coke SL
PC
(icon, formerly '; 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. 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". 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", and his Reports, which have been called "perhaps the single most influential series of named reports". 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
.
. 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
, a barrister
and a merchant in Norwich. 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".
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. The name "Coke" itself was pronounced "kuke" during the Elizabethan age itself, although it is now pronounced "cook". 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
.
Edward Coke was born on 1 February 1552 in Mileham
, 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. One estimate by Allen Boyer is that Edward was the fourth child based on baptism registers. Two years after Robert Coke died on 15 November 1561, 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. 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.
At the age of eight in 1560, Coke began studying at the Norwich Free Grammar School
. The education there was based on erudition
, 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". The students were taught rhetoric based on the Rhetorica ad Herennium
, and Greek centred around the works of Homer
and Virgil
. Coke was taught at Norwich to value the "forcefulness of freedom of speech", something he later applied as a judge. Little is known about his time there, although it is implied in later accounts that he was a diligent student who applied himself well.
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. 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. 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."
After leaving Trinity College he travelled to London, where he became a member of Clifford's Inn
in 1571. 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
. 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. Coke also studied various writ
s "till they turned honey sweet on his tongue", and after completing this stage of his legal education transferred to the Inner Temple
on 24 April 1572.
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. 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. 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. After six years at the Inner Temple he was called to the Bar on 20 April 1578, a remarkably fast rate of progress given the process of legal education at the time, which normally required eight years of study. Polson suggests that this was due to his knowledge of the law, which "excited the Bencher
s".
. His first case was in the Court of King's Bench
in 1581, 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.
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. 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. 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. The judge ruled that Denny's statement had indeed meant this, and from this position of strength Coke forced a settlement. 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". The next year he was elected Reader of Lyon's Inn
for three years, something surprising considering his young age and likely related to his conduct in Lord Cromwell's Case. 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. 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".
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. 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. His power was based around his household, particularly the network of lawyers and stewards who held his estates together. 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. 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.
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. 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; Coke's argument in the case was the first thing to define consideration.
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.
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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. 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. 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.
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
, having been proposed by Francis Knollys
and Thomas Heneage
. 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. 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; Coke returned two days later, having suffered from a stomach problem. 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.
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. 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. 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. 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.
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. 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. 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
.
Coke primarily dealt with matters of treason, such as the cases of Sir John Smythe and Edward Squire
, along with religious incidents such as the disputes between the Jesuits and the Church of England
, personally interrogating John Gerard after his capture. 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". 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
. In the end a compromise was reached; Devereux was put under house arrest and dismissed from all his government offices.
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". 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".
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. 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. On 19 February he was tried, along with the Earl of Southampton, for treason; Coke led the case for the government. Devereux was found guilty and executed; the Earl of Southampton reprieved.
, 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". 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. Coke was reconfirmed as Attorney General under James, and immediately found himself dealing with "a series of treasons, whether real or imaginary". 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".
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". 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. 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". 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".
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. Raleigh was found guilty, and imprisoned in the Tower of London for over a decade before finally being executed. It is generally concluded that the trial was biased strongly against Raleigh, 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, 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.
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, and tried by the Lords Commissioners
. 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". 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.
of Coventry, in 1587 Norwich, and in 1592 Recorder of London, a position he resigned upon his appointment as Solicitor General.
, a requirement for his elevation to Chief Justice of the Common Pleas
, which occurred on 30 June. 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. A biographer of Francis Bacon noted that "The most offensive of Attorney Generals transformed into the most admired and venerated of Judges". 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.
that deliberately trapped people. 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". 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' ". 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".
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. 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.
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". 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.
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". 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, while others argue he meant that the common law courts have the power to completely strike down those statutes they deem to be repugnant.
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. Parliamentary sovereignty is now the universally-accepted judicial doctrine in England and Wales. Bonham's Case met a mixed reaction at the time, with the King and Lord Ellesmere
both deeply unhappy with it. 19th and 20th century academics are scarcely more favourable, calling it "a foolish doctrine alleged to have been laid down extra-judicially", and simply an "abortion".
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, 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. 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; 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.
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". 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. 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. Refusing to admit his guilt, Peacham was tortured on the rack, but "before torture, between torture and after torture; nothing could be drawn from him".
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". 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".
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. 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. With James unable to declare Coke incompetent, some "colorable excuses" were produced to justify Coke's dismissal; he was accused of concealing £12,000, uttering "high words of contempt" as a judge, and declaring himself Chief Justice of England.
, 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
. 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. 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.
, 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. 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. This process continued for three centuries, with formal procedures set out in 1561 to issue letters patent to any new industry, allowing monopolies. 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.
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; at the same time, Elizabeth revoked a number of the more restrictive and damaging monopolies. 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". 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. 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.
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". 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. Coke was then imprisoned in the Tower of London from 27 December before being released nine months later.
. 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. 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. 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". 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
.
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". 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:
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". The Lords, supportive of the King, were not swayed, and Charles himself eventually rejected the Resolutions formally, insisting that the Commons trust him.
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. 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
.
The Petition of Right was eventually affirmed by the Commons and sent to the Lords, who approved it on 17 May; the document's publication was met with bonfires and the ringing of churchbells throughout England. 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
.
, spending his spare time making revisions to his written works. 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. 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.
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. 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. 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". Coke's estates, including Holkham Hall
, passed to his son Henry
.
On 13 August 1582 Coke married Bridget Paston, daughter of John Paston, a Counsellor
from Norwich. Paston came from a long line of lawyers and judges – his great grandfather, William Paston, was a Justice of the Court of Common Pleas
. 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. Six months after they married John Paston died, leaving his daughter and son-in-law his entire estate and several of his clients. Bridget maintained a diary, which reveals that she mainly ran the household. Despite this she was an independent woman, travelling without her husband and acting as a helpmate to Coke. Paston was noted as an "incomparable" woman who had "inestimable value clearly manifested by the eulogies which are lavished on her character". The couple settled at the manor of Huntingfield, described 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".
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, 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. 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. Coke's descendants through Henry include the Earls of Leicester
, particularly Coke of Norfolk, a landowner, Member of Parliament and agricultural reformer.
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. 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. 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". 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".
s, 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". 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", and says that Coke's Reports were "tinctured with quaintness and pedantry". Gest, noting this criticism, points out that:
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. 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. 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. 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.
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". John Baker has described them as "perhaps the single most influential series of named reports", 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".
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. 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. 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.
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". 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.
, as an alternative to the Roman law lectures at university, which were based on Latin; "It was a double vision; the Institutes as authority, the Reports as illustration by actual practise".
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. 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. 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". 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".
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. 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.
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". 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]".
; 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". 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. 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. His work in Slade's Case led to the rise of modern contract law, 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. The Statute of Monopolies is considered one of the first steps towards the eventual English Civil War
, and also "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist".
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, 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
. 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?", which also profoundly influenced the Fourth Amendment to the United States Constitution
; the Third Amendment
, on the other hand, takes influence from the Petition of Right.
by Bacon, Coke wrote "purile insulting remarks" in it. 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", and Roger Ascham
saying that "they do best when they cry loudest", describing a court case where an advocate was "roaring like a bull". 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". 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".
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". 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".
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
PC
Privy Council of England
The Privy Council of England, also known as His Majesty's Most Honourable Privy Council, was a body of advisers to the sovereign of the Kingdom of England...
(icon, formerly '; 1 February 1552 – 3 September 1634) was an English barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
, judge and politician considered to be the greatest jurist of the Elizabethan
Elizabethan era
The Elizabethan era was the epoch in English history of Queen Elizabeth I's reign . Historians often depict it as the golden age in English history...
and Jacobean
Jacobean era
The Jacobean era refers to the period in English and Scottish history that coincides with the reign of King James VI of Scotland, who also inherited the crown of England in 1603 as James I...
eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge
Trinity College, Cambridge
Trinity College is a constituent college of the University of Cambridge. Trinity has more members than any other college in Cambridge or Oxford, with around 700 undergraduates, 430 graduates, and over 170 Fellows...
before leaving to study at the Inner Temple
Inner Temple
The Honourable Society of the Inner Temple, commonly known as Inner Temple, is one of the four Inns of Court in London. To be called to the Bar and practise as a barrister in England and Wales, an individual must belong to one of these Inns...
, 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
Slade's Case
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process...
, before earning enough political favour to be returned to Parliament, where he served first as Solicitor General
Solicitor General for England and Wales
Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...
and then as Speaker of the House of Commons. Following a promotion to Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
he led the prosecution in several notable cases, including Robert Devereux
Robert Devereux, 2nd Earl of Essex
Robert Devereux, 2nd Earl of Essex, KG was an English nobleman and a favourite of Elizabeth I. Politically ambitious, and a committed general, he was placed under house arrest following a poor campaign in Ireland during the Nine Years' War in 1599...
, Sir Walter Raleigh
Walter Raleigh
Sir Walter Raleigh was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer. He is also well known for popularising tobacco in England....
and the Gunpowder Plot
Gunpowder Plot
The Gunpowder Plot of 1605, in earlier centuries often called the Gunpowder Treason Plot or the Jesuit Treason, was a failed assassination attempt against King James I of England and VI of Scotland by a group of provincial English Catholics led by Robert Catesby.The plan was to blow up the House of...
conspirators. As a reward for his services he was first knighted, and then made Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
.
As Chief Justice, Coke restricted the use of the ex officio
Ex officio oath
The ex-officio oath was an English judicial and ecclesiastical weapon developed in the first half of the seventeenth century, and used as a form of coercion, persecution, and forcible self-incrimination in the religious trials of that era...
oath and, in the Case of Proclamations
Case of Proclamations
The Case of Proclamations [1610] was a court decision during the reign of King James I which defined some limitations on the Royal Prerogative at that time. Principally, it established that the Monarch could make laws only through parliament...
and Dr. Bonham's Case
Dr. Bonham's Case
Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham's Case, was decided in 1610 by the Court of Common Pleas in England under Sir Edward Coke, the court's Chief Justice...
, 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". 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
Petition of right
In English law, a petition of right was a remedy available to subjects to recover property from the Crown.Before the Crown Proceedings Act 1947, the British Crown could not be sued in contract...
, a document considered one of the three crucial constitutional documents of England, along with the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
and the Bill of Rights 1689
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 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
Institutes of the Lawes of England
The Institutes of the Lawes of England are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. They are widely recognized as a foundational document of the common law. They have been cited in over 70 cases decided by the Supreme Court...
before dying on 3 September 1634.
Coke is best known in modern times for his Institutes, described by John Rutledge
John Rutledge
John Rutledge was an American statesman and judge. He was the first Governor of South Carolina following the signing of the Declaration of Independence, the 31st overall...
as "almost the foundations of our law", and his Reports, which have been called "perhaps the single most influential series of named reports". Historically, he was a highly influential judge; within England and Wales, his statements and works were used to justify the right to silence
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
, 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
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
. In America, Coke's decision in Dr. Bonham's Case
Dr. Bonham's Case
Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham's Case, was decided in 1610 by the Court of Common Pleas in England under Sir Edward Coke, the court's Chief Justice...
was used to justify the voiding of the Stamp Act 1765
Stamp Act 1765
The Stamp Act 1765 was a direct tax imposed by the British Parliament specifically on the colonies of British America. The act required that many printed materials in the colonies be produced on stamped paper produced in London, carrying an embossed revenue stamp...
and writs of assistance, which led to the American War of Independence, and after the establishment of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
his decisions and writings profoundly influenced the Third
Third Amendment to the United States Constitution
The Third Amendment to the United States Constitution is a part of the United States Bill of Rights. It was introduced on September 5, 1789, and then three quarters of the states ratified this as well as 9 other amendments on December 15, 1791. It prohibits, in peacetime, the quartering of...
and Fourth
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
amendments to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
while necessitating the Sixteenth
Sixteenth Amendment to the United States Constitution
The Sixteenth Amendment to the United States Constitution allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results...
.
Family background and early life
The surname "Coke", or "Cocke", can be traced back approximately 400 years before Edward Coke's birth, to a William Coke in the hundred of South Greenhoe, now SwaffhamSwaffham
Swaffham is a market town and civil parish in the English county of Norfolk. The town is situated east of King's Lynn and west of Norwich.The civil parish has an area of and in the 2001 census had a population of 6,935 in 3,130 households...
. 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
Knight banneret
A knight banneret, sometimes known simply as banneret, was a Medieval knight who led a company of troops during time of war under his own banner and were eligible to bear supporters in English heraldry.The military rank of a knight banneret was...
, a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
and a merchant in Norwich. 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".
Coke's father, Robert Coke, was a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
and Bencher of Lincoln's Inn
Lincoln's Inn
The Honourable Society of Lincoln's Inn is one of four Inns of Court in London to which barristers of England and Wales belong and where they are called to the Bar. The other three are Middle Temple, Inner Temple and Gray's Inn. Although Lincoln's Inn is able to trace its official records beyond...
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
Congham
Congham is a village and civil parish in the English county of Norfolk. It is situated some 10 km west of the town of King's Lynn and 55 km west of the city of Norwich....
, Westacre and Happisburgh
Happisburgh
Happisburgh is a village and civil parish in the English county of Norfolk. It is situated off the B1159 coast road from Ingham to Bacton.The civil parish has an area of , although this is declining due to cliff erosion. In the 2001 census, before the creation of Walcott parish, it had a...
and was granted a coat of arms, becoming a minor member of the gentry. The name "Coke" itself was pronounced "kuke" during the Elizabethan age itself, although it is now pronounced "cook". 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
Thomas Gawdy
Sir Thomas Gawdy SL was a British justice and Member of Parliament.He was the second of three sons of Thomas Gawdy, all by different wives and all baptised Thomas The mother of this Thomas was Anne Bennett...
, a lawyer and Justice of the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
with links to the Earl of Arundel
Henry FitzAlan, 19th Earl of Arundel
Henry FitzAlan, 19th Earl of Arundel was an English nobleman, who over his long life assumed a prominent place at the court of all the later Tudor sovereigns, probably the only person to do so.-Court career:...
, something that later served Edward well. Winifred's father later married Agnes, the sister of Nicholas Hare
Nicholas Hare
Sir Nicholas Hare of Bruisyard, Suffolk was Speaker of the House of Commons of England between 1539-1540.He was born the eldest son of John Hare of Homersfield, Suffolk, educated at Gonville and Caius College, Cambridge and admitted to the Inner Temple in 1515...
.
Edward Coke was born on 1 February 1552 in Mileham
Mileham
Mileham is a village approximately mid way between East Dereham and Fakenham in Mid Norfolk. The village sits astride of the B1145 Kings Lynn to Mundesley road that dissects Mid Norfolk west to east.It is the old coaching road from Kings Lynn to Norwich and then onto Great Yarmouth.The name Mileham...
, 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. One estimate by Allen Boyer is that Edward was the fourth child based on baptism registers. Two years after Robert Coke died on 15 November 1561, 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. 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.
Education and call to the Bar
Norwich School (educational institution)
Norwich School is an independent school located in Norwich, United Kingdom. It is one of the oldest schools in the world, with a traceable history to 1096, and is a member of The Headmasters' and Headmistresses' Conference.It is a fee-paying, co-educational day school and has one of the best...
. The education there was based on erudition
Erudition
The word erudition came into Middle English from Latin. A scholar is erudite when instruction and reading followed by digestion and contemplation have effaced all rudeness , that is to say smoothed away all raw, untrained incivility...
, 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". The students were taught rhetoric based on the Rhetorica ad Herennium
Rhetorica ad Herennium
The Rhetorica ad Herennium, formerly attributed to Cicero but of unknown authorship, is the oldest surviving Latin book on rhetoric, dating from the 90s BC, and is still used today as a textbook on the structure and uses of rhetoric and persuasion....
, and Greek centred around the works of Homer
Homer
In the Western classical tradition Homer , is the author of the Iliad and the Odyssey, and is revered as the greatest ancient Greek epic poet. These epics lie at the beginning of the Western canon of literature, and have had an enormous influence on the history of literature.When he lived is...
and Virgil
Virgil
Publius Vergilius Maro, usually called Virgil or Vergil in English , was an ancient Roman poet of the Augustan period. He is known for three major works of Latin literature, the Eclogues , the Georgics, and the epic Aeneid...
. Coke was taught at Norwich to value the "forcefulness of freedom of speech", something he later applied as a judge. Little is known about his time there, although it is implied in later accounts that he was a diligent student who applied himself well.
After leaving Norwich in 1567 he matriculated to Trinity College, Cambridge
Trinity College, Cambridge
Trinity College is a constituent college of the University of Cambridge. Trinity has more members than any other college in Cambridge or Oxford, with around 700 undergraduates, 430 graduates, and over 170 Fellows...
, where he studied for three years until the end of 1570, when he left without gaining a degree. Little is known of his time at Trinity – he certainly studied rhetoric
Rhetoric
Rhetoric is the art of discourse, an art that aims to improve the facility of speakers or writers who attempt to inform, persuade, or motivate particular audiences in specific situations. As a subject of formal study and a productive civic practice, rhetoric has played a central role in the Western...
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. Coke was proud of Cambridge and the time he spent there, later saying in Dr. Bonham's Case
Dr. Bonham's Case
Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham's Case, was decided in 1610 by the Court of Common Pleas in England under Sir Edward Coke, the court's Chief Justice...
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."
After leaving Trinity College he travelled to London, where he became a member of Clifford's Inn
Clifford's Inn
Clifford's Inn was an Inn of Chancery which is located between Fetter Lane and Clifford's Inn Passage, leading off Fleet Street, EC4.Founded in 1344 and dissolved in 1903, most of the original structure was demolished in 1934...
in 1571. This was to learn the basics of the law – the Inns of Chancery
Inns of Chancery
The Inns of Chancery or Hospida Cancellarie were a group of buildings and legal institutions in London initially attached to the Inns of Court and used as offices for the clerks of chancery, from which they drew their name...
, including Clifford's Inn, served as a place of initial legal education before transfer to the Inns of Court
Inns of Court
The Inns of Court in London are the professional associations for barristers in England and Wales. All such barristers must belong to one such association. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional...
, where one could be called to the Bar and practice as a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
. 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
Moot court
A moot court is an extracurricular activity at many law schools in which participants take part in simulated court proceedings, usually to include drafting briefs and participating in oral argument. The term derives from Anglo Saxon times, when a moot was a gathering of prominent men in a...
based on those precedents and their discussions. Coke also studied various writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s "till they turned honey sweet on his tongue", and after completing this stage of his legal education transferred to the Inner Temple
Inner Temple
The Honourable Society of the Inner Temple, commonly known as Inner Temple, is one of the four Inns of Court in London. To be called to the Bar and practise as a barrister in England and Wales, an individual must belong to one of these Inns...
on 24 April 1572.
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. It was here he first drew notice, arguing well in an Inner Temple
Inner Temple
The Honourable Society of the Inner Temple, commonly known as Inner Temple, is one of the four Inns of Court in London. To be called to the Bar and practise as a barrister in England and Wales, an individual must belong to one of these Inns...
moot and asserting that the Inner Temple cook had failed to prepare edible food. 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
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
argue. After six years at the Inner Temple he was called to the Bar on 20 April 1578, a remarkably fast rate of progress given the process of legal education at the time, which normally required eight years of study. Polson suggests that this was due to his knowledge of the law, which "excited the Bencher
Bencher
A bencher or Master of the Bench is a senior member of an Inn of Court in England and Wales. Benchers hold office for life once elected. A bencher can be elected while still a barrister , in recognition of the contribution that the barrister has made to the life of the Inn or to the law...
s".
Practice as a barrister
After being called to the Bar on 20 April 1578 Coke immediately began practising as a barristerBarrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
. His first case was in the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
in 1581, 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
Book of Common Prayer
The Book of Common Prayer is the short title of a number of related prayer books used in the Anglican Communion, as well as by the Continuing Anglican, "Anglican realignment" and other Anglican churches. The original book, published in 1549 , in the reign of Edward VI, was a product of the English...
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.
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. 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. 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. The judge ruled that Denny's statement had indeed meant this, and from this position of strength Coke forced a settlement. 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". The next year he was elected Reader of Lyon's Inn
Lyon's Inn
Lyon's Inn was one of the Inns of Chancery attached to Inner Temple. Founded some time during or before the reign of Henry V, the Inn educated lawyers including Edward Coke and John Selden, although it was never one of the larger Inns...
for three years, something surprising considering his young age and likely related to his conduct in Lord Cromwell's Case. 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. His lectures were on the Statute of Uses
Statute of Uses
The Statute of Uses was an Act of the Parliament of England that restricted the application of uses in English property law. The Statute was originally conceived by Henry VIII of England as a way to rectify his financial problems by simplifying the law of uses, which moved land outside the royal...
, 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".
During the 1580s, Coke became intimately linked with the Howard family, the Dukes of Norfolk
Duke of Norfolk
The Duke of Norfolk is the premier duke in the peerage of England, and also, as Earl of Arundel, the premier earl. The Duke of Norfolk is, moreover, the Earl Marshal and hereditary Marshal of England. The seat of the Duke of Norfolk is Arundel Castle in Sussex, although the title refers to the...
and Earls of Arundel. His uncle Thomas Gawdy
Thomas Gawdy
Sir Thomas Gawdy SL was a British justice and Member of Parliament.He was the second of three sons of Thomas Gawdy, all by different wives and all baptised Thomas The mother of this Thomas was Anne Bennett...
had close links to Earl Arundel
Henry FitzAlan, 19th Earl of Arundel
Henry FitzAlan, 19th Earl of Arundel was an English nobleman, who over his long life assumed a prominent place at the court of all the later Tudor sovereigns, probably the only person to do so.-Court career:...
himself. In Norfolk Arundel held a Liberty
Liberty (division)
Originating in the Middle Ages, a liberty was traditionally defined as an area in which regalian rights were revoked and where land was held by a mesne lord...
– he was essentially a local prince who appointed all officials, maintained his own prison, executed justice and paid off any royal clerks. His power was based around his household, particularly the network of lawyers and stewards who held his estates together. Coke's uncle Thomas Gawdy had served as the Steward to the Third Duke of Norfolk
Thomas Howard, 3rd Duke of Norfolk
Thomas Howard, 3rd Duke of Norfolk, KG, Earl Marshal was a prominent Tudor politician. He was uncle to Anne Boleyn and Catherine Howard, two of the wives of King Henry VIII, and played a major role in the machinations behind these marriages...
, 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. As well as defeating these direct attacks Coke also travelled to Cardiff
Cardiff
Cardiff is the capital, largest city and most populous county of Wales and the 10th largest city in the United Kingdom. The city is Wales' chief commercial centre, the base for most national cultural and sporting institutions, the Welsh national media, and the seat of the National Assembly for...
to answer a challenge by Francis Dacre, brother-in-law to Philip Howard
Philip Howard, 20th Earl of Arundel
Saint Philip Howard, 20th Earl of Arundel was an English nobleman. He was canonised by Pope Paul VI in 1970, as one of the Forty Martyrs of England and Wales...
– he proved that Dacre's evidence was false, and had the case dismissed.
Coke became involved in Shelley's Case in 1581, a now-classic case that created a rule
Rule in Shelley's Case
The Rule in Shelley's Case is a rule of law that may apply to certain future interests in real property and trusts created in common law jurisdictions...
in real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
that is still used in some common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions today and also established Coke's reputation as both an attorney and a case reporter. 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
Slade's Case
Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process...
, a dispute between the Common Pleas and King's Bench over assumpsit
Assumpsit
Assumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
now regarded as a classic example of the friction between the two courts and the forward movement of contract law; Coke's argument in the case was the first thing to define consideration.
Politics
Thanks to his work in their behalf, Coke had earned the favour of the Dukes of Norfolk. When he secured the Lordship of AldeburghAldeburgh
Aldeburgh is a coastal town in Suffolk, East Anglia, England. Located on the River Alde, the town is notable for its Blue Flag shingle beach and fisherman huts where freshly caught fish are sold daily, and the Aldeburgh Yacht Club...
for them in 1588 he also secured the Aldeburgh Parliamentary Constituency
Aldeburgh (UK Parliament constituency)
Aldeburgh was a parliamentary borough represented in the House of Commons of the Parliament of the United Kingdom and its predecessor bodies.The town was enfranchised in 1571 as a borough constituency...
, which elected two Members of Parliament (MPs). With their support, Coke was returned for Aldeburgh as an MP in February 1589.
Solicitor General and Speaker
Robert Dudley, 1st Earl of Leicester
Robert Dudley, 1st Earl of Leicester, KG was an English nobleman and the favourite and close friend of Elizabeth I from her first year on the throne until his death...
died in 1588, followed by Sir Walter Mildmay
Walter Mildmay
Sir Walter Mildmay was an English statesman who served as Chancellor of the Exchequer of England under Queen Elizabeth I, and was founder of Emmanuel College, Cambridge.-Early life:...
, the Chancellor of the Exchequer
Chancellor of the Exchequer
The Chancellor of the Exchequer is the title held by the British Cabinet minister who is responsible for all economic and financial matters. Often simply called the Chancellor, the office-holder controls HM Treasury and plays a role akin to the posts of Minister of Finance or Secretary of the...
, a year later, and Sir Francis Walshingham
Francis Walsingham
Sir Francis Walsingham was Principal Secretary to Elizabeth I of England from 1573 until 1590, and is popularly remembered as her "spymaster". Walsingham is frequently cited as one of the earliest practitioners of modern intelligence methods both for espionage and for domestic security...
a year after that. In 1592 the Lord Chief Justice died, and, according to custom the Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, John Popham, succeeded him, with the Solicitor General, Thomas Egerton
Thomas Egerton, 1st Viscount Brackley
Thomas Egerton, 1st Viscount Brackley PC was an English Nobleman, Judge and Statesman who served as Lord Keeper and Lord Chancellor for twenty-one years.-Early life, education and legal career:...
, succeeding Popham. This created a vacancy among the Law Officers of the Crown
Law Officers of the Crown
The Law Officers of the Crown are the chief legal advisers to the Crown, and advise and represent the various governments in the United Kingdom and the other Commonwealth Realms. In England and Wales, Northern Ireland and most Commonwealth and colonial governments, the chief law officer of the...
, and thanks to the influence of the Cecil family, Coke became Solicitor General on 16 June 1592. It is implied that this was a narrow victory, thanks to Coke's defence of unpopular clients, and he was summoned before Elizabeth I
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
, who berated him to the point of tears before confirming him as Solicitor General.
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
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
, having been proposed by Francis Knollys
Francis Knollys (the elder)
Sir Francis Knollys , of Greys Court, in Oxfordshire, KG was an English courtier in the service and favour of Henry VIII, Edward VI and Elizabeth I of England, and was a Member of Parliament for a number of constituencies....
and Thomas Heneage
Thomas Heneage
Sir Thomas Heneage PC was an English politician and a courtier at the court of Elizabeth I.-Early and personal life:...
. 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. After "disabling" himself in the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
(a ceremony in which the incoming Speaker apologised for his failings) Parliament was suspended until 24 February; Coke returned two days later, having suffered from a stomach problem. The Parliament was intended to be a brief and simple one; with the Black Death
Black Death
The Black Death was one of the most devastating pandemics in human history, peaking in Europe between 1348 and 1350. Of several competing theories, the dominant explanation for the Black Death is the plague theory, which attributes the outbreak to the bacterium Yersinia pestis. Thought to have...
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.
The idea of a peaceful, swift Parliament was not to be, due to religious problems. On 27 February James Morice
James Morice
James Morice was an English politician.He was born 1539, the eldest son of William Morice of Chipping Ongar by Anne Isaac of Kent and educated at the Middle Temple.He was chosen as the Member of Parliament for Wareham in 1563...
, a Puritan Member of Parliament, proposed two new bills; one against the bishops of the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
, and the other against the Court of High Commission
Court of High Commission
The Court of High Commission was the supreme ecclesiastic court in England. It was instituted by the crown during the Reformation and finally dissolved by parliament in 1641...
. Morice was placed under house arrest, and seven Members of Parliament were later arrested, but the bills remained in Parliament. 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. Coke and Robert Cecil
Robert Cecil, 1st Earl of Salisbury
Robert Cecil, 1st Earl of Salisbury, KG, PC was an English administrator and politician.-Life:He was the son of William Cecil, 1st Baron Burghley and Mildred Cooke...
, 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
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
action, granting a day of respite for the government. 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.
Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
thanks to his partnership with the Cecil family; Francis Bacon
Francis Bacon
Francis Bacon, 1st Viscount St Albans, KC was an English philosopher, statesman, scientist, lawyer, jurist, author and pioneer of the scientific method. He served both as Attorney General and Lord Chancellor of England...
, his rival, was supported by Robert Devereux
Robert Devereux, 2nd Earl of Essex
Robert Devereux, 2nd Earl of Essex, KG was an English nobleman and a favourite of Elizabeth I. Politically ambitious, and a committed general, he was placed under house arrest following a poor campaign in Ireland during the Nine Years' War in 1599...
, who waged a constant war against Robert Cecil for control of the English government. The position of Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
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. 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
Nine Years' War (Ireland)
The Nine Years' War or Tyrone's Rebellion took place in Ireland from 1594 to 1603. It was fought between the forces of Gaelic Irish chieftains Hugh O'Neill of Tír Eoghain, Hugh Roe O'Donnell of Tír Chonaill and their allies, against English rule in Ireland. The war was fought in all parts of the...
.
Coke primarily dealt with matters of treason, such as the cases of Sir John Smythe and Edward Squire
Edward Squire
Edward Squire was an English scrivener and sailor, and an alleged conspirator against the life of Elizabeth I of England. He was executed, after an investigation of a series of obscure circumstances led to conviction for his apparent attempts to poison Queen Elizabeth and Robert Devereux, 2nd Earl...
, along with religious incidents such as the disputes between the Jesuits and the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
, personally interrogating John Gerard after his capture. As the 1590s continued the infighting between Cecil and Devereux persisted, with Devereux's raid on Cadiz
Capture of Cadiz
The Capture of Cádiz in 1596 was an event during the Anglo-Spanish War, when English and Dutch troops under Robert Devereux, 2nd Earl of Essex and a large Anglo-Dutch fleet under Charles Howard, 1st Earl of Nottingham, with support from the Dutch United Provinces, raided the Spanish city of...
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". 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
Tower of London
Her Majesty's Royal Palace and Fortress, more commonly known as the Tower of London, is a historic castle on the north bank of the River Thames in central London, England. It lies within the London Borough of Tower Hamlets, separated from the eastern edge of the City of London by the open space...
. In the end a compromise was reached; Devereux was put under house arrest and dismissed from all his government offices.
Devereux immediately began plotting rebellion. Orders were sent out for "bedding" and "draperies" – code for weapons – and rebellious gentlemen gathered at Essex House
Essex House (London)
Essex House was a house in London, built around 1575 for Robert Dudley, Earl of Leicester and originally called Leicester House.The property occupied the site where the Outer Temple, part of the London headquarters of the Knights Templar, had previously stood , and was immediately adjacent to the...
to hear him talk of Elizabeth's "crooked mind and crooked carcass". In reaction, Coke and Cecil began a counter-plot. In 1599 Sir John Hayward
John Hayward
Sir John Hayward , English historian, was born at or near Felixstowe, Suffolk, where he was educated, and afterwards proceeded to Pembroke College, Cambridge, where he took the degrees of B.A., M.A. and LL.D....
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".
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
Thomas Egerton, 1st Viscount Brackley
Thomas Egerton, 1st Viscount Brackley PC was an English Nobleman, Judge and Statesman who served as Lord Keeper and Lord Chancellor for twenty-one years.-Early life, education and legal career:...
and John Popham were sent to him, and taken hostage. 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
Richard Bancroft
Archbishop Richard Bancroft, DD, BD, MA, BA was an English churchman, who became Archbishop of Canterbury and the "chief overseer" of the production of the authorized version of the Bible.-Life:...
, 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. On 19 February he was tried, along with the Earl of Southampton, for treason; Coke led the case for the government. Devereux was found guilty and executed; the Earl of Southampton reprieved.
James I
On 24 March 1603, Elizabeth I died. James VI of Scotland set out to claim the English throne as James I of EnglandJames I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
, 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
Anne of Denmark
Anne of Denmark was queen consort of Scotland, England, and Ireland as the wife of King James VI and I.The second daughter of King Frederick II of Denmark, Anne married James in 1589 at the age of fourteen and bore him three children who survived infancy, including the future Charles I...
, 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". 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. Coke was reconfirmed as Attorney General under James, and immediately found himself dealing with "a series of treasons, whether real or imaginary". The first of these was the trial of Sir Walter Raleigh
Walter Raleigh
Sir Walter Raleigh was an English aristocrat, writer, poet, soldier, courtier, spy, and explorer. He is also well known for popularising tobacco in England....
; 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".
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". 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
Mark (money)
Mark was a measure of weight mainly for gold and silver, commonly used throughout western Europe and often equivalent to 8 ounces. Considerable variations, however, occurred throughout the Middle Ages Mark (from a merging of three Teutonic/Germanic languages words, Latinized in 9th century...
from the Spanish government. As such, Raleigh was charged with supporting Stuart's claim to the throne and claiming Spanish money. 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". 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".
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. Raleigh was found guilty, and imprisoned in the Tower of London for over a decade before finally being executed. It is generally concluded that the trial was biased strongly against Raleigh, 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, 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.
The next significant government prosecution was the trial of the eight main Gunpowder Plot
Gunpowder Plot
The Gunpowder Plot of 1605, in earlier centuries often called the Gunpowder Treason Plot or the Jesuit Treason, was a failed assassination attempt against King James I of England and VI of Scotland by a group of provincial English Catholics led by Robert Catesby.The plan was to blow up the House of...
conspirators in Westminster Hall. The men were indicted on 27 January 1605, and tried by the Lords Commissioners
Lords Commissioners
The Lords Commissioners are Privy Counsellors appointed by the Monarch of the United Kingdom to exercise, on his or her behalf, certain functions relating to Parliament which would otherwise require the monarch's attendance at the Palace of Westminster...
. 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". 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.
Judicial work
Coke's first judicial postings came under Elizabeth; in 1585, he was made RecorderRecorder (judge)
A Recorder is a judicial officer in England and Wales. It now refers to two quite different appointments. The ancient Recorderships of England and Wales now form part of a system of Honorary Recorderships which are filled by the most senior full-time circuit judges...
of Coventry, in 1587 Norwich, and in 1592 Recorder of London, a position he resigned upon his appointment as Solicitor General.
Common Pleas
On 20 June 1606, Coke was made a Serjeant-at-LawSerjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
, a requirement for his elevation to Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
, which occurred on 30 June. 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. A biographer of Francis Bacon noted that "The most offensive of Attorney Generals transformed into the most admired and venerated of Judges". 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.
Court of High Commission
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 oathEx officio oath
The ex-officio oath was an English judicial and ecclesiastical weapon developed in the first half of the seventeenth century, and used as a form of coercion, persecution, and forcible self-incrimination in the religious trials of that era...
that deliberately trapped people. 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
Richard Bancroft
Archbishop Richard Bancroft, DD, BD, MA, BA was an English churchman, who became Archbishop of Canterbury and the "chief overseer" of the production of the authorized version of the Bible.-Life:...
as Archbishop of Canterbury
Archbishop of Canterbury
The Archbishop of Canterbury is the senior bishop and principal leader of the Church of England, the symbolic head of the worldwide Anglican Communion, and the diocesan bishop of the Diocese of Canterbury. In his role as head of the Anglican Communion, the archbishop leads the third largest group...
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". 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' ". 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".
During this period a "notorious suit" ran through the courts, known as Fuller's Case after the defending barrister, Nicholas Fuller
Nicholas Fuller (lawyer)
Sir Nicholas Fuller was an English barrister and Member of Parliament. After studying at Christ's College, Cambridge, Fuller became a barrister of Gray's Inn...
. 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. 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.
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
Case of Prohibitions
Case of Prohibitions [1607] is a historical English court decision by Sir Edward Coke. Before the Glorious Revolution of 1688, when the sovereignty of Parliament was confirmed, this case wrestled supremacy from the King in favour of the courts....
. 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". Coke was only saved from imprisonment by Robert Cecil
Robert Cecil, 1st Earl of Salisbury
Robert Cecil, 1st Earl of Salisbury, KG, PC was an English administrator and politician.-Life:He was the son of William Cecil, 1st Baron Burghley and Mildred Cooke...
, 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.
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 PleasCourt of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
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". 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, while others argue he meant that the common law courts have the power to completely strike down those statutes they deem to be repugnant.
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
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
. Initially written down by William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, 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. Parliamentary sovereignty is now the universally-accepted judicial doctrine in England and Wales. Bonham's Case met a mixed reaction at the time, with the King and Lord Ellesmere
Thomas Egerton, 1st Viscount Brackley
Thomas Egerton, 1st Viscount Brackley PC was an English Nobleman, Judge and Statesman who served as Lord Keeper and Lord Chancellor for twenty-one years.-Early life, education and legal career:...
both deeply unhappy with it. 19th and 20th century academics are scarcely more favourable, calling it "a foolish doctrine alleged to have been laid down extra-judicially", and simply an "abortion".
In the United States, Coke's decision met with a better reaction. During the legal and public campaigns against the writs of assistance
Writ of Assistance
A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...
and Stamp Act 1765
Stamp Act 1765
The Stamp Act 1765 was a direct tax imposed by the British Parliament specifically on the colonies of British America. The act required that many printed materials in the colonies be produced on stamped paper produced in London, carrying an embossed revenue stamp...
, Bonham's Case was given as a justification for nullifying the legislation, and Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
, the American case which forms the basis for the exercise of judicial review in the United States
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
under Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, uses the words "void" and "repugnant", seen as a direct reference to Coke. 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; 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.
King's Bench
Coke was transferred from the Common Pleas to the Court of King's BenchCourt of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
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". 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. 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. Refusing to admit his guilt, Peacham was tortured on the rack, but "before torture, between torture and after torture; nothing could be drawn from him".
In 1616, two years after Peacham's Case, the case of commendams arose. The in commendam
In Commendam
In canon law, commendam was a form of transferring an ecclesiastical benefice in trust to the custody of a patron...
writ was a method of transferring ecclesiastical property, which James I used in this case to allow Richard Neile
Richard Neile
Richard Neile was an English churchman, bishop of several English dioceses and Archbishop of York from 1631 until his death.-Early life:...
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". 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".
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. 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
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
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. With James unable to declare Coke incompetent, some "colorable excuses" were produced to justify Coke's dismissal; he was accused of concealing £12,000, uttering "high words of contempt" as a judge, and declaring himself Chief Justice of England.
Return to politics
Now out of favour and with no chance of returning to the judiciary, Coke was elected MP for LiskeardLiskeard (UK Parliament constituency)
Liskeard was a parliamentary borough in Cornwall, which elected two Members of Parliament to the House of Commons from 1295 until 1832, and then one member from 1832 until 1885, when the borough was abolished.- History :...
, 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
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
and Maria Anna of Spain, and possible military support for the King's son-in-law, Frederick V, Elector Palatine
Frederick V, Elector Palatine
Frederick V was Elector Palatine , and, as Frederick I , King of Bohemia ....
. Coke became a leading opposition MP, along with Robert Phelips
Robert Phelips
Sir Robert Phelips was an English politician. He was the son of Sir Edward Phelips, Speaker of the House of Commons and Master of the Rolls...
, Thomas Wentworth
Thomas Wentworth (Recorder of Oxford)
Thomas Wentworth was an English lawyer and Member of Parliament who was a vocal if imprudent defender of the rights of the House of Commons....
and John Pym
John Pym
John Pym was an English parliamentarian, leader of the Long Parliament and a prominent critic of James I and then Charles I.- Early life and education :...
, campaigning against any military intervention and the marriage of the Prince of Wales and Maria Anna. 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.
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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, not on statute. It began as the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
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. To boost England's economy, Edward II
Edward II of England
Edward II , called Edward of Caernarfon, was King of England from 1307 until he was deposed by his wife Isabella in January 1327. He was the sixth Plantagenet king, in a line that began with the reign of Henry 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. This process continued for three centuries, with formal procedures set out in 1561 to issue letters patent to any new industry, allowing monopolies. 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.
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; at the same time, Elizabeth revoked a number of the more restrictive and damaging monopolies. 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". 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. After passing on 12 May it was thrown out by the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, but a Statute of Monopolies was finally passed by Parliament on 25 May 1624.
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". 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. Coke was then imprisoned in the Tower of London from 27 December before being released nine months later.
Liberty and the Resolutions
James died on 27 March 1625 and was succeeded by his son, who became Charles I of EnglandCharles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
. Coke was briefly restrained from acting in Parliament by Charles; he was made High Sheriff of Buckinghamshire
High Sheriff of Buckinghamshire
The High Sheriff of Buckinghamshire, in common with other counties, was originally the King's representative on taxation upholding the law in Saxon times...
by the King in 1625, which prohibited him from sitting in Parliament until his term expired a year later. 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
Ranulph Crewe
Sir Ranulph Crewe was an English judge and Chief Justice of the King’s Bench.-Early life and career:...
was dismissed; at this, the remaining judges succumbed to the King's pressure. More and more people refused to pay, leading to Darnell's Case
Darnell's Case
The Five Knights' case, also called Darnel's or Darnell's case, was an important case in English law, fought by five knights in 1627 against forced loans placed on them by King Charles I in a common law court...
, 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". 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
Oliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....
.
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". The Commons responded to these measures by insisting that the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, 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
Habeas Corpus Act 1679
The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be...
. These declared that Magna Carta was still in force, and that furthermore:
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
John Selden
John Selden was an English jurist and a scholar of England's ancient laws and constitution and scholar of Jewish law...
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". The Lords, supportive of the King, were not swayed, and Charles himself eventually rejected the Resolutions formally, insisting that the Commons trust him.
Petition of Right
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
.
The Petition of Right was eventually affirmed by the Commons and sent to the Lords, who approved it on 17 May; the document's publication was met with bonfires and the ringing of churchbells throughout England. 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
Long Parliament
The Long Parliament was made on 3 November 1640, following the Bishops' Wars. It received its name from the fact that through an Act of Parliament, it could only be dissolved with the agreement of the members, and those members did not agree to its dissolution until after the English Civil War and...
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
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
.
Retirement
When Parliament was dissolved in 1629, Charles took the decision to govern without one, and Coke effectively retired to his estate at Stoke PogesStoke Poges
Stoke Poges is a village and civil parish in the South Buckinghamshire district of Buckinghamshire, England. It is in the south of the county, about three miles north of Slough and a mile east of Farnham Common....
, spending his spare time making revisions to his written works. 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. 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.
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. He was buried in St Mary's Church, Tittleshall
Tittleshall
Tittleshall is a village and civil parish in the English county of Norfolk.-Location:The village and parish of Tittleshall has an area of 1376 hectares or . The parish is bordered to the north with the parishes of Raynham and Colkirk, to the west with Wellingham All Saints, to the south with the...
. 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. 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". Coke's estates, including Holkham Hall
Holkham Hall
Holkham Hall is an eighteenth-century country house located adjacent to the village of Holkham, on the north coast of the English county of Norfolk...
, passed to his son Henry
Henry Coke
Henry Coke was an English politician who sat in the House of Commons variously between 1624 and 1642.Coke was the son of Sir Edward Coke Lord Chief Justice, of Thorington, Suffolk. He was admitted at Queens' College, Cambridge on 18 August 1607....
.
Personal life
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
from Norwich. Paston came from a long line of lawyers and judges – his great grandfather, William Paston, was a Justice of the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
. 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. Six months after they married John Paston died, leaving his daughter and son-in-law his entire estate and several of his clients. Bridget maintained a diary, which reveals that she mainly ran the household. Despite this she was an independent woman, travelling without her husband and acting as a helpmate to Coke. Paston was noted as an "incomparable" woman who had "inestimable value clearly manifested by the eulogies which are lavished on her character". The couple settled at the manor of Huntingfield, described 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".
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
Knight Bachelor
The rank of Knight Bachelor is a part of the British honours system. It is the most basic rank of a man who has been knighted by the monarch but not as a member of one of the organised Orders of Chivalry...
and married Theophile, daughter of Thomas Berkeley, 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. 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. Coke's descendants through Henry include the Earls of Leicester
Earl of Leicester
The title Earl of Leicester was created in the 12th century in the Peerage of England , and is currently a title in the Peerage of the United Kingdom, created in 1837.-Early creations:...
, particularly Coke of Norfolk, a landowner, Member of Parliament and agricultural reformer.
After Bridget Paston died in 1598, Coke married Elizabeth Hatton
Elizabeth Hatton
Elizabeth Hatton was the second wife of Sir William Hatton, the nephew and heir of Sir Christopher 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. 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. It is said that Coke first suggested marrying Hatton to Sir Robert Cecil
Robert Cecil, 1st Earl of Salisbury
Robert Cecil, 1st Earl of Salisbury, KG, PC was an English administrator and politician.-Life:He was the son of William Cecil, 1st Baron Burghley and Mildred Cooke...
, Hatton's uncle, at the funeral of Lord Burghley
William Cecil, 1st Baron Burghley
William Cecil, 1st Baron Burghley , KG was an English statesman, the chief advisor of Queen Elizabeth I for most of her reign, twice Secretary of State and Lord High Treasurer from 1572...
, 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". 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".
Writings
Coke is best known for his written work – firstly his thirteen volumes of law reportLaw report
Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.The term reporter was...
s, and secondly his four-volume Institutes of the Lawes of England
Institutes of the Lawes of England
The Institutes of the Lawes of England are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. They are widely recognized as a foundational document of the common law. They have been cited in over 70 cases decided by the Supreme Court...
. 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". John Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
, 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", and says that Coke's Reports were "tinctured with quaintness and pedantry". Gest, noting this criticism, points out that:
Reports
Edmund Plowden
Sir Edmund Plowden was a distinguished English lawyer, legal scholar and theorist during the late Tudor period.-Life:...
. 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
Christopher Wray
Sir Christopher Wray was an English judge and Chief Justice of the King’s Bench.-Early life and career:Wray, the third son of Thomas Wray, seneschal in 1535 of Coverham Abbey, Yorkshire, by Joan, daughter of Robert Jackson of Gatenby, Bedale, in the same county, was born at Bedale in 1524...
". The original reports were kept in a generally chronological order, interspersed with personal memos, obituaries and notes on court practices. 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
Plea rolls
Plea rolls are parchment rolls recording details of legal suits or actions in a court of law in England.Courts began recording its proceedings in plea rolls and filing its writs from its foundation at the end of the 12th century....
reference and the year in which Coke recorded them, but later editions failed to include the plea roll reference and led to inaccuracies.
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". John Baker has described them as "perhaps the single most influential series of named reports", 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".
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. 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. 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.
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". 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.
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; 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. 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 CourtInns of Court
The Inns of Court in London are the professional associations for barristers in England and Wales. All such barristers must belong to one such association. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional...
, as an alternative to the Roman law lectures at university, which were based on Latin; "It was a double vision; the Institutes as authority, the Reports as illustration by actual practise".
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. 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
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...
in 1723 and Brown University
Brown University
Brown University is a private, Ivy League university located in Providence, Rhode Island, United States. Founded in 1764 prior to American independence from the British Empire as the College in the English Colony of Rhode Island and Providence Plantations early in the reign of King George III ,...
in 1770; John Jay
John Jay
John Jay was an American politician, statesman, revolutionary, diplomat, a Founding Father of the United States, and the first Chief Justice of the United States ....
, John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
, Theophilus Parsons
Theophilus Parsons
Theophilus Parsons was an American jurist.Born in Newbury, Massachusetts, and the son of a clergyman, Parsons was one of the early students at the Dummer Academy before matriculating to Harvard College from which he graduated in 1769, was a schoolmaster in Falmouth from 1770–1773; he studied law,...
and Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
were all influenced by it. John Rutledge
John Rutledge
John Rutledge was an American statesman and judge. He was the first Governor of South Carolina following the signing of the Declaration of Independence, the 31st overall...
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". 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".
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. 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.
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. 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". 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. 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.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". Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
, along with Francis Bacon
Francis Bacon
Francis Bacon, 1st Viscount St Albans, KC was an English philosopher, statesman, scientist, lawyer, jurist, author and pioneer of the scientific method. He served both as Attorney General and Lord Chancellor of England...
, argued against Coke's theory. Instead, they were proponents of natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, 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]".
Legacy
Coke's challenge to the ecclesiastical courts and their ex officio oath is seen as the origin of the right to silenceRight to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
; 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". The case of John Lilburne
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...
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. In the trial of Sir Roger Casement
Roger Casement
Roger David Casement —Sir Roger Casement CMG between 1911 and shortly before his execution for treason, when he was stripped of his British honours—was an Irish patriot, poet, revolutionary, and nationalist....
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. His work in Slade's Case led to the rise of modern contract law, 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. The Statute of Monopolies is considered one of the first steps towards the eventual English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
, and also "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist".
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
Writ of Assistance
A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...
and Stamp Act 1765
Stamp Act 1765
The Stamp Act 1765 was a direct tax imposed by the British Parliament specifically on the colonies of British America. The act required that many printed materials in the colonies be produced on stamped paper produced in London, carrying an embossed revenue stamp...
, Bonham's Case was given as a justification for nullifying the legislation, and in the income tax case of 1895, Joseph Hodges Choate
Joseph Hodges Choate
Joseph Hodges Choate , was an American lawyer and diplomat.-Biography:He was born in Salem, Massachusetts on January 24, 1832. He was the son of physician George Choate and the brother of George C. S. Choate. His father's first cousin was Rufus 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
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
declare the Wilson–Gorman Tariff Act unconstitutional, leading to the passage of the Sixteenth Amendment
Sixteenth Amendment to the United States Constitution
The Sixteenth Amendment to the United States Constitution allows the Congress to levy an income tax without apportioning it among the states or basing it on Census results...
. The Castle doctrine
Castle Doctrine
A Castle Doctrine is an American legal doctrine arising from English common law that designates one's place of residence as a place in which one enjoys protection from illegal trespassing and violent attack...
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?", which also profoundly influenced the Fourth Amendment to the United States Constitution
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
; the Third Amendment
Third Amendment to the United States Constitution
The Third Amendment to the United States Constitution is a part of the United States Bill of Rights. It was introduced on September 5, 1789, and then three quarters of the states ratified this as well as 9 other amendments on December 15, 1791. It prohibits, in peacetime, the quartering of...
, on the other hand, takes influence from the Petition of Right.
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 OrganumNovum Organum
The Novum Organum, full original title Novum Organum Scientiarum, is a philosophical work by Francis Bacon, written in Latin and published in 1620. The title translates as new instrument, i.e. new instrument of science. This is a reference to Aristotle's work Organon, which was his treatise on...
by Bacon, Coke wrote "purile insulting remarks" in it. 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
Thomas Elyot
Sir Thomas Elyot was an English diplomat and scholar.-Early Life:Thomas was the child of Sir Richard Elyot's first marriage with Alice De la Mare, but neither the date nor place of his birth is accurately known...
writing that "[they] lacked elocution and pronunciation, two of the principal parts of rhetorike", and Roger Ascham
Roger Ascham
Roger Ascham was an English scholar and didactic writer, famous for his prose style, his promotion of the vernacular, and his theories of education...
saying that "they do best when they cry loudest", describing a court case where an advocate was "roaring like a bull". 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". 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".
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". 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".