COKE, EDWARD (1552–1634)

Edward Coke (pronounced Cook) was an English lawyer, judge, and parliamentarian who influenced the development of English and American constitutional law by promoting the supremacy of the common law in relation to parliamentary powers and the royal prerogative.

After studying at Trinity College, Cambridge, Coke entered the Inner Temple and was called to the Bar in 1578. His career was outstanding from the start. He was elected to Parliament in 1589 and in 1593 he became Speaker of the House of Commons. Appointed attorney-general in 1594, he prosecuted several notable treason cases, including that of Sir Walter Raleigh in 1603.

In 1600, Coke began publication of his Reports. Eleven volumes had been published by 1615; two additional volumes appeared after his death. These were not collections of appellate opinions; rather, they consisted of case notes made by Coke, legal history, and general criticism. Coke had mastered the precedents, and he brought symmetry to scattered authority. Thereafter, The Reports, as they were usually called, were the authoritative common law precedents in England and colonial America.

Coke was appointed Chief Justice of the Court of Common Pleas in 1606, serving until 1613, when he was appointed Chief Justice of the Court of King's Bench. His judicial career was terminated in 1616 when King James I removed him from office. During these years Coke began enunciating ideas concerning the supremacy of the common law, foreshadowing modern concepts of government under law.

Coke's judicial pronouncement most influential on the American doctrine of judicial review came in bonham ' s case (1610). The College of Physicians had fined and imprisoned Dr. Bonham for practicing medicine without a license. The court held that because the College would share in the fine, the charter and parliamentary act conferring this authority were contrary to the common law principle that no man can be a judge in his own case. Coke stated: "And it appears in our books, that in many cases, the common law will control 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 control it, and adjudge such act to be void.…" Coke believed that the common law contained a body of fundamental, although not unchangeable, principles to be ascertained and enunciated by judges through the "artificial reason" of the law. In Bonham's Case he seemed to be reasoning that parliamentary acts must be interpreted consistently with those principles. Whatever Coke's precise meaning, however, the statement foreshadowed the American doctrine of judicial review; it was influential in the developing concept of the supremacy of law as interpreted and applied by the judiciary.

Another incident of Coke's judicial career that contributed to the modern idea of government under law came in 1608 during a confrontation with James I. The king had claimed authority to withdraw cases from the courts and decide them himself. In a dramatic Sunday morning meeting convened by the king and attended by all the judges and bishops, Coke maintained that there was no such royal authority. He asserted, quoting Bracton, that the king was not under man "but under God and law," one of the earliest and most quoted expressions of this concept.

Coke returned to Parliament in 1620 and in the final phase of his career made two major contributions to constitutional government and English and American law.

Drawing on the provision in magna carta that "no free man shall be taken [or] imprisoned … except by the … law of the land," he launched the concept of "due process of law." Coke asserted that this provision referred to the established processes of the common law. He expressed this view in the parliamentary debates leading to the petition of right in 1628, raising Magna Carta to new heights with statements such as "Magna Carta is such a fellow that he will have no sovereign." Coke's arguments presaged the later American concept of a written constitution superior to other law. He also linked Magna Carta with habeas corpus, although there was little historical support for the connection. He believed that there must be a remedy for imprisonment contrary to common law process and the remedy was to be had through the writ of habeas corpus.

Coke's other major contribution in his last years was the writing of his Institutes. This four-part work, published in 1641, became a basic text in the education of lawyers in England and America. In America, where law books were few, the Institutes were the standard work before the publication of william blackstone'sCommentaries in 1767. As noted by the Supreme Court in one of its several twentieth-century references to Coke (klopfer v. north carolina, 1967): "Coke's Institutes were read in the American Colonies by virtually every student of the law. Indeed, thomas jefferson wrote that at the time he studied law (1762–1767), Coke Lyttleton was the universal elementary book of law students. And to john rutledge of South Carolina, the Institutes seemed to be almost the foundation of our law." Because few lawyers in England and America had either the inclination or the resources to go behind Coke's Institutes and his Reports, these works, despite historical inaccuracies revealed by later scholarship, became the authoritative legal source on both sides of the Atlantic.

Coke represents a transition from medieval to modern law. He lived in the dawn of the modern constitutional era, when the British colonization of North America was beginning. As the colonists later sought authority to support their arguments that royal power was limited by law, they found it in Coke. Since the American Revolution, Coke has been regarded as an early authority for the proposition that all government is under law and that it is ultimately for the courts to interpret the law.

Daniel J. Meador
(1986)

Bibliography

Boudin, Louis B. 1929 Lord Coke and the American Doctrine of Judicial Power. New York University Law Review 6:223–246.

Bowen, Catherine D. 1957 The Lion and the Throne: The Life and Times of Sir Edward Coke. Boston: Little, Brown.

Mullett, Charles F. 1932 Coke and the American Revolution. Economica 12:457–471.