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Introduction - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I [1600]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Introduction

Four hundred years ago, Sir Edward Coke published the first volume of his Reports. In time, his publications would include a surprisingly comprehensive set of cases and treatises that would help to modernize the law. Moreover, his decisions as a judge and arguments as a statesman uniquely contributed to the foundation of the law as an institution independent of the political powers of the state and capable of defending the freedom of the citizen. It is fair to say that no one has contributed more to create the modern notion of the rule of law.

Coke, whose name was pronounced “cook,” was born in 1552 in Mileham, Norfolk, an eastern, mainly puritan country town of England. He studied at Cambridge, became an influential and wealthy lawyer, served Elizabeth I as Attorney General, and served James I as Chief Justice successively of the two law courts, the Court of Common Pleas and the Court of King’s Bench. He opposed the King’s interference in judicial affairs and was removed, although he stayed a royal adviser for many years. He entered Parliament and fostered the Petition of Right, a forerunner of the Bills of Rights in England and the United States. (A detailed chronology follows this introduction.)

Coke’s influence was great at a pivotal moment in English and American history. Teetering at the end of the 1500s, the Tudor England of which Coke wrote and in which he was the master lawyer had seen the end of the feudal order and the dawn of the commercial age. The Stuart England in which he judged saw the adolescence of the printed book, of King James’s Bible and Shakespeare’s plays. Moreover, it was an age in which kings sought ever more control over the affairs of state and of individuals but in which individuals had both new ideas about their own opportunities and new money with which to pursue them. The conflicts that emerged to be solved by the law—disputes about property, colonies, commerce, employment, bankruptcy, reputation, natural resources, religion, taxes, crimes, representative and bureaucratic government, and liberty—were taking on many new dimensions.

Coke resolved those conflicts employing the system of law in a way that seemed predictable and consistent and, most important, that was, in the end, without favoritism. He developed books that enshrined not only the results of individual conflicts but also his view of the system, justifying it with a mixture of history and reason. This view of law was a powerful tool, one that also protected certain values of long-lasting influence, especially in the new colonies then being cut into the forests of the Atlantic coast of North America. In these colonies, up to and after the American Revolution, Coke’s statements of the law, and of the law’s protection of the individual from unreasonable claims by the King or the Parliament, were the central learning of every lawyer.

It has been more than a century since a new edition of any of Coke’s writings has been published. More surprisingly, perhaps, there never before has been an anthology that draws from the breadth of his printed works and speeches as justice and parliamentarian. A great need persists for a scholarly edition of all his works. Even so, this edition’s goal is much more modest, to present the artifacts of Coke’s career, essentially in the printed forms by which they influenced the course of the law, both for reappraisal and for inspiration in considering the recurrent problems of the law.

Coke’s Life and Ideas

Edward Coke is a difficult and complicated figure in history, which is unsurprising, as he was a difficult man living in a turbulent time. In his youth, he was a brilliant lawyer but a political hack and a fawning courtier. In his age, he was a scholarly judge and courageous statesman but a venal father. He lived in a time, though, when the compromises of the feudal order were being supplanted on the one hand by absolute monarchy and on the other by exploration and commerce.

Coke forged his views of law not by pondering its niceties but by fighting in its trenches. Coke early acquired a reverence for technique, research, and the honing of a good theory of a case in litigation. He worked hard, had a good memory, and learned the legal precedents as well as anyone ever had. He would turn these techniques and skills to the service of his clients, for whom he deployed a comprehensiveness and lack of reserve that could be breathtaking. As an ambitious young lawyer from a good family (but not a family so good as to tie him initially to the ancient landed interests) and as a protégé of the master politician and royal adviser Lord Burghley, a self-made man who saw his nation’s future in its economy, it is not surprising that Coke found himself representing clients who needed new legal remedies and rules.

For Coke to argue for new results from old principles did not require him to believe that he was pursuing change, or arguing for a grand theory, or pursuing a legal revolution. He could merely uphold the rights of Parliament to make law and of the court to apply its traditional principles. By doing so, particularly when those principles included doctrines of reason and remedy, he was pursuing his clients’ interests and harvesting “new corn from oldfields,” in the same manner lawyers had done for generations before him and for all time since. Thus, he could accept, and promote, an idea of law that was at once unchanging but also changing.

His early work therefore pursued a considerable degree of economic liberality in the law, and it is no surprise to see Coke later arguing against monopoly, against lands tied in feudal bonds, and against restraints of trade. Although he did not pursue the wholesale laissez-faire economic regime developed a century later, he was nearer to it than most in his age, and his reforms of the law made its realization all the more possible.

A great lawyer with tremendous skills devoted without reservation to the client can become a tool of tyrannical power if the client is a politician, and as the attorney general of a queen Coke adored, he was hardly immune from abusing his gifts. But when those same skills were turned to the protection of his final client, the law itself, Coke turned loose those gifts in its service.

In this way, Coke applied the same artifice he early used to win property and contract disputes when he later defended the power of Parliament and the bench, the fount and the vessel of the law. He became a tireless advocate of the monopoly of courts of law as the arbiters of disputes, challenging local courts, church courts, private arbitrators, the Chancellor, and even the King.

Coke was ever loyal to James I personally, whom he sincerely called the fountain of justice (as opposed to the fountain of law). Yet this loyalty was not without limit, and Coke argued time and again that Parliament and the Common Law remained the sole sources of the law and that all things must be done by law, particularly the defining of crimes, the levying of tax, and the judgment of cases.

Moreover, the two ideas for which James I, and later Charles I, would most persecute Coke, that judges must act not by command of the King but by the dictates of law and that the law protects the King (as opposed to an all-powerful monarchy subordinate to none but God), can easily be seen in cases he litigated and reported from the time of Elizabeth, which themselves rested on antecedents Coke took pains to enumerate. Simply, the law was not only the means by which the monarch received and gave property but also the tool that protected the monarch’s interests in property. The King was powerless to change the nature of a common-law estate in his own lands. Only Parliament could do that, and it could do so only in a manner the courts would accept. In cases turning on means as varied as the common-law standards for the definition of an interest in property, the construction of the meaning of a statute, and the limitations and powers that accrue during judicial process, the monarch’s interests in such cases were determined time and again by the preexisting dictates of the law, or at least what the judges proclaimed the law to have been. From such a stage—on which Coke acted practically without a peer as the consummate artist of pleading, precedent, and argument—Coke took all of the tools he would need not only to protect the Queen against her adversaries but also to protect the courts and Parliament from the later kings.

These tools made Coke a dubious courtier. At times, he was embarrassingly ingratiating, but at others his insistence on following his views of the law made him so irritating to the monarch that, had he been a man less useful in so many ways, it would have threatened his life. King James is said to have described Coke as “like a cat: throw her which way you would, she will light upon her feet.”

At the height of his career, Coke stood as a barrier against royal power to dictate the outcome of the law. He argued for untrammeled discretion of the judge to “do as a judge ought to do,” without royal command or assent. He argued for a single set of laws, common throughout the realm, according to which liberty and property would be reliably regulated, without the recurrent loss of liberty that accompanied courts held as special privileges by local lords, crown administrators, and church officials. The law, as Coke articulated it, protected the individual from tyrannical abuse.

This is, if nothing else, a recipe for the rule of law, of which Coke had a full vision. He saw the rule of law as a complicated amalgam of precedent and argument, reason that brought old laws to answer fresh questions, at least to the practitioner who was both well-skilled in its arcane methods and rules and well-versed in the law’s special customs and obligations. The tool most essential to that vision was a comprehensive record of the methods and substance of the law, and this was the chief legacy of his writings.

Coke’s Writings

English law for centuries had Year Books and scattered reports collecting cases, statute rolls collecting Acts of Parliament, and a few treatises synthesizing them both on particular topics, primarily the interests of nobles in land. Even so, prior to Coke’s Reports and Institutes, no single written source of English law had managed to strike the balance between the breadth and specificity needed to convey the contours of a whole system of rules and the brevity and selectivity needed to keep the system sufficiently manageable for use. Further, times had changed, and traditional materials required revision to account for both new principles of law and new forms of dispute.

Coke began collecting his private case reports early in his career, not just recording cases he argued (with a decided preference for cases he won), but collecting other cases by watching them, speaking with principals in the opinions and arguments, and amassing a trove of others’ notes. He even sent his students to hear arguments and to take notes for him when he couldn’t attend, a task on which he seems often to have sent the young student and later colonist Roger Williams. By the time he became Attorney General, the quality of his notes, the range of his reports, and his authority as a lawyer made the Reports an instant success.

Coke’s writings sometimes slant the bases for his case opinions, occasionally slanting them until, in the opinion of some, his report has turned them upside down. There are times when Coke describes precedents to support a position that would require an unusually idiosyncratic view of the precedent, and he notoriously accepts the authority of earlier law books, particularly the dubious Mirror, with a blithe and credulous trust. Most obviously, for all of the reading he did of history (and he read many books on history) Coke seems to have had a very anachronistic eye for the past, often reading the oldest of precedents as if they had been written in his own time, except for the authority they had gained by virtue of their antiquity. Although this anachronistic tendency might have weakened his merit as a legal authority, it also fanned the flames of his imaginative reinterpretations of ancient sources of law, a phenomenon that made possible Coke’s wholesale translation of Magna Carta from the contract protecting only the nobility into the law protecting all of the crown’s subjects.

Certainly a portion of the authority that Coke cited as a basis for his statements of particular rules of law ranged from questionable to nonsensical. On the other hand, the percentage of Coke’s statements for which this is true is nowhere near as high as his detractors sometimes imply; it is just enough to color his enterprise a rather self-authenticating hue. And he did serve as his own authentication. Given his unparalleled personal authority, Coke simply pulled it off. Setting aside his, perhaps inevitable, removal from the bench, it mattered little that the likes of Bacon and Ellesmere griped to the King that Coke’s Reports misconstrued the cases or that his authorities were weak. Indeed, it has mattered less that historians have plucked at the hem of Coke’s gowns over his sources. The fact remained that once Coke—encyclopedia of precedent, virtuoso of pleading, law teacher, Solicitor General, Attorney General, Lord Chief Justice of both of the great law benches, Speaker of the House, and proud and incorruptible arbiter of the disputes of King and commoner alike—said that something was the law, almost everyone agreed. In 1824, nearly two centuries after his death, it was explained aptly. “Lord Coke,” wrote Chief Justice William Best, often, “had no authority for what he states, but I am afraid we should get rid of a great deal of what is considered law in Westminster hall, if what Lord Coke says without authority is not law. He was one of the most eminent lawyers that ever presided as a judge in any court of justice.”

Despite the complaints of those, like Lord Campbell, that Coke was illread, his writings are models of prose by a well-read, well-rounded man of his age. He sprinkles his reports with classical allusion; he is particularly fond of Virgil. Moreover, he writes complicated fact patterns with a clarity that still eludes some judges and reporters centuries later. He is a great coiner of epigrams and maxims, and many of his lines have pith, wisdom, and humor. Littered about the Reports and especially the Institutes are guarded asides to law students, cautions to practitioners, and observations on the rules of the law, some of which are still routinely quoted today. As generations of young lawyers have learned, Coke’s prose canbe complex and his organization diffuse, but the rewards of careful reading are abundant.

Coke’s published works are essentially of three forms: reports, treatises, and speeches. He published his own reports in eleven separate folio volumes, and two appeared posthumously. (There are still more notes for reports that have never been published.) To see the reports as the sum of his judicial works would be to miss his many arguments as a lawyer and opinions as a judge, some of which were reported later by others. His lengthiest project as seen by his successor generations were his treatises, particularly the four Institutes, which are usually bound into only three fat folios or six fatter quartos, not including the short treatises on bail and mainprize and copyholding, and the manual on pleading. The extant speeches, other than those reported as case opinions, are largely in the form of records of the debates in Commons and in the Privy Council, although the interesting charge to the jury at Norwich falls into this category as well.

One word is in order when comparing the selections in this book to Coke’s writings as a whole. Coke’s writings comfortably fill a dozen books with big spines and small print, and an editor choosing what not to include is like Ali Baba in the cave of the forty thieves: there are too many treasures to carry them all away. Although the width of this edition testifies to the patience of the publisher, many wonderful and significant portions of Coke’s writings remain untouched. Some of his writings are simply delightful, like his proof that mastiffs are not dogs in a statute punishing dogs that enter the King’s woods, or his tale of the judge who built Westminster clock as a penalty for reducing a poor man’s fine. Leaving these stories and many of the finer points of early modern common law aside has been rather painful, but those selected stand as testament to the rich domain which this edition only surveys.

Coke’s Influence

At the distance of four centuries, it is easy to mistake the significance of Coke’s achievements. One might overestimate Coke’s contributions by missing the significance in his work of such predecessors as Fortescue, Bracton, and earlier judges, or such allies as Selden and Davies, or such adversaries as Ellesmere and Bacon. It is likewise easy to underestimate Coke’s contributions by seeing them as but an articulation of principles that were rarely in doubt or by simply failing to notice their significance, breadth, or novelty.

The arena in which such mistakes are especially regrettable is in appraising Coke’s contribution to the modern notion of the rule of law. A controversial and multifaceted notion, the rule of law can be thought of as the idea that no person or group controls the state but that laws are applied to everyone equally and fairly by impartial and independent people who are themselves bound by the laws to do so.

Although it dates from classical Greece, the idea of the rule of law made slow headway in a world personally governed by emperors, popes, and kings. Of course, the compromises among king, lord, and peasant necessary to maintain the feudal order were enshrined in law, but such laws were dependent on an uneasy balance of power and could guarantee neither the stability necessary for justice and predictability nor the mutability necessary for economic change and adaptability. Such a guaranty requires a relatively stable body of laws, sufficiently comprehensive to resolve the complicated questions of human dispute. It also requires methods for determining the existence of those laws and determining precisely which requirements of law govern a particular dispute. It requires tools for enforcing such a determination without regard to the status of the disputants, the biases of the judge, or other factors beyond the dispute and the rules. Last, it requires a near-monopoly of those rules as the source of resolution of disputes. Some of these requirements are terribly problematic, such as determining when a judge acts from bias, what laws may accord status, or what status may not be accorded by laws. Neither those problems nor occasional lapses alter the general requirements of the rule of law, and these requirements were each pursued quite deliberately by Coke.

The influence of this idea of law was in every sense revolutionary, especially in the new balance it struck between monarch and subject. Indeed, notions of a legally limited monarch and of common subjects who held rights, which were, thanks to Coke, now deemed to have existed since Magna Carta, and the idea of a legal machinery independent of all but the authority of the nation’s legislature are nearly inextricable from the other causes of the English Civil War, of the American Revolution, and of the American Civil War.

Coke was sponsor or author of many ideas that are now embedded in the structure of the law. England has applied Coke’s reports and acknowledged his lessons, and he deeply influenced such writers as Blackstone and Stephen, judges such as Lord Eldon and Lord Denning, and policymakers such as Edmund Burke. He is regularly cited still, and recent surveys of judicial databases yield surprisingly thick lists of citations to Coke’s writings from the benches of the common-law world. (A few American citations are listed in the bibliography in volume three.) In all, though, judicial reaction in England and America, centuries after Coke, is now rather like the American response to the writings of Joseph Story; that is, he remains an important figure in the development of the law, whose works are authoritative but not conclusive in arguing for the meaning of ideas and laws.

There are, however, wider circles in the intellectual pool through which Coke’s ideas still ripple. Milton and, later, Locke and Montesquieu argued for the protection of the citizen through orderly laws that are independent of the raw power of monarch or parliament. Likewise, Fuller’s independence of the law from the church, Harrington’s legal limits on the aristocracy, Hobbes’s practical view of the state, and Smith’s commerce free from oppressive laws are seen by many commentators today as then-novel ideas. Yet thesearguments essentially traveled on roads that had been surveyed by Coke. Some, particularly Thomas Hobbes, could hardly have written their greatest works but for Coke’s antecedent writing, even if it served mainly to focus their objections.

Writers of philosophical treatises strive to present a comprehensive system, designed to minimize contradiction in a single exposition. By contrast Coke wrote over a long period, encompassing numerous discrete questions, and the whole of his writings present ambiguities and contradictions in a corpus that was not designed on philosophical lines. Simply, Coke was not a philosopher but a lawyer. His works were somewhat inaccessible to the reader who was neither well-skilled in the language of the law nor prepared to become immersed in its study. All of that said, Coke’s influence on the political philosophers of the seventeenth and eighteenth centuries, who generally learned the law through his writings, was substantial, and they often acknowledged their debts to him.

His influence on the practical affairs of law and state was rather more direct in America through her colonists, the likes of Roger Williams, James Otis, John Adams, James Madison, George Wythe, Thomas Jefferson, and John Marshall. From Coke, Americans took not abstract notions of government but the tools of law, among them tools of substance—citizens’ rights against the state, common law supremacy over local law, legal protections of property from state invasion, limits on monopoly and restraints of trade, the right to habeas corpus, and the right to limit the burdens of taxes and criminal sanctions to those that are enacted only by the people’s representatives—and tools of process—judicial independence, judicial review of statutes, judicial review of administrative officials, and judicial impeachment for favoritism or bribery. Americans also acquired the habit of case reporting, treatise writing, and statutory inventory, eventually building a vast body of written and accessible law.

Aristotle’s government of laws rather than men was given a practical foundation by Coke’s writings and by a career in which, as Maitland said, “The Common Law took flesh.” He was an incorruptible judge, a lawyer dedicated to the integrity of law, whose personal authority and legal acumen forever altered the nature of the Common Law.