Coke, Edward
Coke, Edward
Sir Edward Coke (1552–1634) was an English jurist who, as a judge and writer, significantly influenced the development of Anglo-American law. (His name was in his own time pronounced and often written “Cooke” and is still so pronounced.) After receiving his education at Trinity College, Cambridge, and at the Inner Temple, London, Coke was called to the bar in 1578; his rise in his profession was rapid. He soon became solicitor general, then speaker of the House of Commons, and in 1594 Queen Elizabeth i appointed him attorney general. As attorney general he was a forceful representative of the interests of the crown, and his harshness and brutality toward men accused of treason or sedition became notorious, shocking many of his contemporaries.
In 1606, King James I appointed Coke chief justice of the Court of Common Pleas, an appointment that caused an almost immediate change of attitude in Coke. The feared and relentless defender of royal power became an equally ardent champion of the supremacy of the common law. He led a vigorous attack against the Court of High Commission, which represented the royal prerogative in church matters, issuing many writs of prohibition against the exercise of jurisdiction by this court. Coke’s position on the supremacy of common law brought him in direct conflict with King James. At a meeting between the king and the judges, held at Whitehall in 1608, King James stated that he could take any causes he pleased from the judges and determine them himself; Coke unequivocally denied this assertion and, quoting Henry de Bracton, declared that “the king should not be under any man, but under God and the law.” In “Dr. Bonham’s Case” (1610), Coke extended his views on the supremacy of the common law to the area of parliamentary legislation, holding that when an act of Parliament is against common right and reason, the common law will control such an act and adjudge it to be void.
In 1613, on the advice of Francis Bacon, Coke’s great enemy, the king transferred Coke to the chief justiceship of the Court of King’s Bench, an office higher in dignity but lower in salary. Bacon thought that Coke’s capacity for doing harm to the royal interests would be diminished, since the main function of this court was the trial of pleas of the crown, i.e., criminal cases. But Coke soon started again to enforce his beliefs in the supremacy of common law, a system of law that he considered to be well-nigh perfect, and to fight those courts connected with the royal prerogative. When Lord Chancellor Ellesmere, as head of the Court of Chancery, granted an injunction against the execution of a judgment obtained fraudulently in the King’s Bench, Coke declared interference by the Chancery to be a legal offense against the ancient statute of praemunire and secured an indictment both against the parties and against the master in chancery who had taken part in the proceedings. The jury, however, discarded the indictment. When the matter was brought before the king and his legal advisers, they held that the Chancery had been within its rights.
Shortly thereafter, in 1616, Coke was dismissed by the king. On the day following the dismissal, John Chamberlain summed up the reasons for this action correctly when he wrote: “fowre [four] P’s have overthrown and put him down, that is Pride, Prohibitions, Premunire [sic], and Prerogative” ([1597–1626] 1939, vol. 2, p. 34).
In 1620, Coke was returned to the House of Commons and became a leader of the parliamentary opposition to the king. He was the chief architect of the Petition of Right, the great constitutional document designed to safeguard the basic liberties of the people. The document, published in 1628, declared that arbitrary imprisonment was unlawful, strengthened the writ of habeas corpus, forbade the billeting of soldiers without the householder’s consent, and took a stand against the levying of loans or taxes without parliamentary approval. It was probably the crowning event in Coke’s career that Charles i, who had succeeded James in 1625, had to accede to the demands made in this document.
Coke’s writings belong to the classics of English legal literature. In his Reports (13 parts, 1600–1659) he set forth the pleadings, arguments, and rules of law as they arose in litigation before him and other judges. Each case contains a summary of authority upon the principle involved up to his own day. His Institutes of the Laws of England … consists of four parts: the first (1628) is a commentary on Littleton, who had published a book on tenures in the fifteenth century; the second (1642) deals with public and statutory law; the third (1644a), with criminal law; and the fourth (1644b), with the jurisdiction of courts.
It was chiefly because of Coke that the common law was able to preserve its continuity even during the revolutionary period of the seventeenth century and to become the dominant jurisdiction in England. He linked the law of the medieval period with that of the emerging modern world and thereby paved the way for a reform of the common law that did not abandon those of its values capable of being preserved in modern civilization. These attainments entitle Coke to a place among the great jurists of the world.
Edgar Bodenheimer
[For the historical context of Coke’s work, seeLegal Systems, article onCommon law systems; Parliamentary government.]
WORKS BY COKE
(1600–1659) 1826 GREAT BRITAIN, COURTS The Reports of Sir Edward Coke, knt. [1572–1617], In 13 parts, 6 vols., new ed. London: Butterworth.
(1610) 1826 Dr. Bonham’s Case. Volume 4, part 8, pages 355–383 in Great Britain, Courts, The Reports of Sir Edward Coke. London: Butterworth.
(1628) 1853 The First Part of the Institutes of the Laws of England, Or a Commentary Upon Littleton. … 1st American ed. from the 19th London rev. & corrected ed. Philadelphia: Small.
(1642) 1817 The Second Part of the Institutes of the Laws of England Containing the Exposition of Many Ancient and Other Statutes. 2 vols. London: Clarke.
(1644a) 1817 The Third Part of the Institutes of the Laws of England Concerning High Treason, and Other Pleas of the Crown and Criminal Causes.… London: Clarke.
(1644b) 1817 The Fourth Part of the Institute of the Laws of England Concerning the Jurisdiction of the Courts.… London: Clarke.
SUPPLEMENTARY BIBLIOGRAPHY
Bowen, Catherine Drinker 1957 The Lion and the Throne: The Life and Times of Sir Edward Coke (1552–1634). Boston: Little.
Campbell, John C. (1849) 1874 Sir Edward Coke. Volume 1, pages 245–357 in John Campbell, The Lives of the Chief Justices of England. New York: Cockcroft.
Chamberlain, John (1597–1626) 1939 The Letters of John Chamberlain. Edited and with an introduction by Norman E. McClure. 2 vols. Philadelphia: The American Philosophical Society. → See especially the “Letter to Sir Dudley Carleton, London, November 14, 1616.”
Holdsworth, William E. 1924 Edward Coke and the Relations of the Common Law to Its Rivals. Volume 5, pages 423–493 in William Holds worth, History of English Law. London: Methuen.
Holdsworth, William E. 1938 Sir Edward Coke. Pages 111–132 in William Holdsworth, Some Makers of English Law: The Tagore Lectures, 1937–38. Cambridge Univ. Press.
Johnson, Cuthbert William (1837)1845 The Life of Sir Edward Coke, Lord Chief Justice of England in the Reign of James I, With Memoirs of His Contemporaries. 2 vols., 2d ed. London: Colburn.
Lyon, Walter Hastings; and Block, Herman 1929 Edward Coke, Oracle of the Law. Boston: Houghton Mifflin.
McDonnell, George P. (1887) 1921 Sir Edward Coke. Volume 4, pages 685–700 in Dictionary of National Biography. Oxford Univ. Press.
Plucknett, Theodore F. T. 1926 Bonham’s Case and Judicial Review. Harvard Law Review 40:30–70.