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Source: The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 1.
Sir Edward Coke, Preface, Second Part of the Reports (1602)
The feisty and brilliant Sir Edward Coke was probably the greatest
champion of the common law. His extraordinary career
spanned three reigns: he served as speaker of the House of Commons
and later as attorney-general under Queen Elizabeth; as chief justice
of the common pleas and chief justice of the King’s Bench under James
I; and was an outspoken member of Parliament under James and
Charles I. His role in a series of cases that limited the powers of the
king and church courts led to his dismissal from the bench in 1616.
Coke remained active in Parliament, leading the effort for passage of
the Protestation of 1621 and the Petition of Right in 1628.
Coke’s renowned Reports of cases he heard argued during the
reigns of Elizabeth and James began to appear in 1600 and ran to
thirteen volumes, the last two published by Parliament after his death.They are the most famous reports ever written on the common
law and appeared in numerous editions, abridgments, and translations.
The prefaces were in Latin and English, the main texts in Norman
French with the pleadings in Latin. In the prefaces Coke laid out
his defense of the antiquity and superiority of the common law and
the high court of parliament as well as the independence of the judiciary.
He exalted claims to individual liberties derived from a constitution
more ancient than Magna Carta and laid a basis for both
the British and American legal systems.Notwithstanding attacks on
the accuracy of his versions of cases, his impact was enormous. The
preface to the second volume of Reports, reprinted here, first appeared
in 1602 while Coke was attorney-general. The original title page was
entirely in Latin.
Preface, Second Part of the Reports (1602)
To the learned Reader.
There are (sayth Euripides) three vertues worthe our meditation;To
honour God, our Parents who begat us, ... and these Common Lawes of Greece.The like doe I say to
thee (Gentle Reader), next to thy dutie and pietie to God, and his
annointed thy gracious Soveraigne, and thy honour to thy Parentes,
yeeld due reverence and obedience to the Common Lawes of England:
for all Lawes (I speake of human) these are most equall and
most certaine, of greatest antiquitie, and least delay, and most beneficiall
and easie to be observed; As if the module of a Preface would
permit, I could defende against any man that is not malicious without
understanding, and make manifest to any of judgement and indifferency,
by proofes pregnant and demonstrative, and by Recordes
and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi,
qui nescio quo malo affectu oderunt Artes antequam pernoverunt.There
is no Jewell in the world comparable to learning;No learning so excellent
both for Prince and Subject as knowledge of Lawes; and no
knowledge of any Lawes, (I speake of human) so necessarie for all estates,
and for all causes, concerning goodes, landes, or life, the common
Lawes of England. If the beautie of other Countries be faded
and wasted with bloudie warres, thank God for the admirable peace
wherein this Realme hath long flourished under the due administration
of these Lawes. If thou readest of the tyranny of other Nations,
wherein powerfull will and pleasure standes for Law & Reason, and
where upon conceit of mislike, men are suddenly poisoned, or otherwise
murthered, and never called to aunswere; Praise God for the
Justice of thy gracious Soveraigne, who (to the worlde’s admiration),
governeth her people by God’s goodnesse in peace and prosperity by
these Lawes, and punisheth not the greatest offendor, no, though his
offence be crimen laese Majestatis,Treason against her sacred person,
but by the just and equall proceedings of Law.
If in other kingdomes, the Lawes seeme to governe: But the Judges
had rather misconstrue the Law, and doe injustice, than Displease
the King’s humour, whereof the Poet speaketh; Ad libitum Regis, sonuit
sententia Legis: Blesse God for Queene Elizabeth, whose continuall
charge to her Justices agreeable with her auncient Lawes, is, that
for no commaundement under the great or privie Seale, writtes or
letters, common right be disturbed or delayed.1 And if any such commaundement
(upon untrue surmises) should come, that the Justices
of her Lawes should not therefore cease to doe right in any point.2
And this agreeth with the auncient Law of England, declared by the
great Charter, and spoken in the person of the king;Nulli vendemus,
nulli negabimus, aut differemus Justiciam vel Rectum.3
If the auncient Lawes of this noble Island had not excelled all
others, it could not be but some of the severall Conquerors, and Governors
thereof;That is to say, the Romanes, Saxons, Danes, or Normans,
and specially the Romanes, who (as they justly may) doe boast
of their Civill Lawes, would (as every of them might) have altered or
changed the same.
For thy comfort and incouragement, cast thine eye upon the Sages
of the Law, that have been before thee, and never shalt thou finde any that hath excelled in the knowledge of these Lawes, but hath
sucked from the breasts of that divine knowledge, honesty, gravity,
and integrity, and by the goodnes of God hath obtained, a greater
blessing and ornament than any other profession, to their familie and
posteritie. As by the page following, taking some for many you may
perceive; for it is an undoubted truth, That the just shall flourish as the
Palme tree, and spread abroad as the Cedars of Libanus.
Their example and thy profession doe require thy imitation: for
hetherto I never saw any man of a loose and lawles life, attaine to any
sound and perfect knowledge of the said lawes. And on the other
side, I never saw any man of excellent judgement in these Lawes, but
was withall (being taught by such a Master) honest, faithfull, and vertuous.
If you observe any diversities of oppinions amongest the professors
of the Lawes, contende you (as it behoveth) to be learned in your
profession, and you shall finde, that it is Hominis vitium, non professionis.
And to say the trueth, the greatest questions arrise not upon
any of the Rules of the Common Law, but sometimes uppon Conveyances
and Instruments made by men unlearned; Many times
upon Willes intricately, absurdly, and repugnantly set downe, by Parsons,
Scriveners, and such other Imperites.4 And oftentimes upon
Actes of Parliament, overladen with provisoes, and additions, and
many times on a sudden penned or corrected by men of none or verie
little judgement in Law.
If men would take sound advise and counsell in making of their
Conveyances, Assurances, Instruments, and Willes: And Councellors
would take paines to be rightly and truely informed of the true
state of their Client’s case, so as their advise and counsel might be
apt & agreeable to their Client’s estate: And if Acts of Parliament
were after the olde fashion penned, and by such only as perfectly knew what the Common Law was before the making of any Act of
Parliament concerning that matter, as also how farre forth former
Statutes had provided remedie for former mischiefes and defects discovered
by experience;Then should verie few questions in Law arise,
and the learned should not so often and so much perplexe their
heades, to make attonement and peace by construction of Law betweene
insensible and disagreeing wordes, sentences, and Provisoes,
as they now doe.
In all my time, I have not knowen two questions made of the right
of Discents, of Escheates by the common Lawe &c. so certaine and
sure the Rules thereof be: Happy were Artes if their professors would
contende, and have a conscience to be learned in them, and if none
but the learned would take upon them to give judgement of them.
Your kind and favorable acceptation (gentle Reader) of my former
Edition, hath caused me to publish these few cases in performance of
my former promise, & I wish to you all no lesse profit in reading of
them, than I perswade myselfe to have reaped in observing of them.
This only of the learned I desire.
Perlege, sed si quid novisti rectius istis,
Candidus imperti; si non hiis utere mecum.
1. 2 Edw. III, cap. 8, Statute of Northampton, 1328.This section reads “That it shall not be
commanded by the great Seal nor the little Seal to disturb or delay common Right; and though
such Commandments do come, the Justices shall not therefore leave to do right in any point.”
See Statutes of the Realm, vol. 1, 259.
2. 20 Edw. III, cap. 1, 1346,Ordinance for the Justices. In Section 1 the king proclaims that
all his justices have been commanded “That they shall from henceforth do equal Law and Execution
of right to all our Subjects, rich and poor, without having regard to any Person, and
without omitting to do right for any Letters or Commandment which may come to them from
Us, or from any other, or by any other cause.” See Statutes of the Realm, vol. 1, 303.
20 Edw. III, cap. 2, 1346. Here the king states that in the same manner in which he commanded
the justices to do right, “We have ordained in the right of the Barons of the Exchequer.
. . .That they shall do right and reason to all our Subjects great and small; and that they shall
deliver the People reasonably and without delay of the Business which they have to do before
them, without undue tarrying as hath been done in times past.”
3. Magna Carta, cap. 29. “To no one will we sell, to no one will we deny or delay right or justice.”
4. Unskillful ones.