The Encyclopedia of Libertarianism

Coke, Edward (1552-1634)

Sir Edward Coke was an English lawyer, judge, and royal advisor. Coke was a prominent Parliamentarian and author and was especially important in the creation of the early modern common law. His ideas about the ancient constitution of England, derived from both history and the common law, concluded that common law was both integral to the evolution of the law’s independence from royal power and served as a limit over administrative and official conduct. These ideas framed the understanding of the law among English colonists in North America as well as strongly influencing the modern ideal of the rule of law.

Edward Coke was born 5 years after the death of Henry VIII, in Mileham, a village in Norfolk, England. His father was a lawyer, and young Edward grew up in a literate household before attending Norwich cathedral school and Trinity College, Cambridge. Edward’s father, Robert Coke, died when Edward was 7, and his mother remarried Robert Bozoun, a man of some property. Edward married twice to wealthy and powerful women—in 1582 to Bridgit Paston, with whom he had 10 children before her death in 1598, and then to Lady Elizabeth Hatton, with whom he had 2 more children.

He began formal law study at the age of 19, entering first Clifford’s Inn and then the Inner Temple in 1572. Called to the bar in 1578, Coke quickly demonstrated great skill, and he soon appeared with the leading lawyers of his day arguing cases of national prominence. His arguments in these cases not only influenced his later opinions as a judge, but also have had an enduring influence in protecting liberty of conscience and the transferability of property. Appointed a reader, or lecturer, of Lyon’s Inn while still in his 20s, Coke’s first judicial appointment came in 1584. Coke’s talent and background made him a natural candidate for the political network orchestrated by William Cecil, Lord Burleigh, Elizabeth I’s advisor, an association that led to his promotion through both Parliament and the courts. Coke served in Parliament in 1589 and 1593, when he served as Speaker. In the interim, he was appointed Solicitor General and was promoted to Attorney General, apparently as a result of Elizabeth’s own preference—over Francis Bacon—in 1594. At times, Coke’s zeal in the queen’s service took him far beyond the limits of fact and law, as it did when he served as the Crown’s attorney in the infamous trial of Sir Walter Raleigh.

With the accession in 1603 of Scotland’s James VI to the English throne as James I, Coke was knighted and appointed Chief Justice of the Court of Common Pleas, the nation’s most powerful judicial position. Following a string of opinions consolidating the power of the law courts, at the expense of the clergy, the nobility, and eventually the King, Coke was promoted to the less influential, if technically senior, position of Chief Justice of Kings Bench in 1613, from which he was removed in 1616, although he remained a royal advisor and held other Crown offices from time to time. Coke returned to Parliament in 1621 and 1628, where he was a principal drafter of the Petition of Right, the forerunner of the Bill of Rights of 1688. In the days before September 3, 1634, as Coke lay dying at his home in Stoke Pogis, Sir Francis Windebank, Charles I’s Secretary of State, personally seized Coke’s papers and manuscripts, including writings that would not be published until ordered printed by Parliament at the close of the English Civil War.

Throughout his professional life, Coke was a busy writer, copying and editing judicial opinions of his own and others, as well as writing commentaries on various points of law. In 1600, he published his first volume of the Reports, detailing the arguments and opinions in cases decided by the courts, replacing the traditional form of brief written conclusions summarizing each case with the modern form of judicial opinion and its report. Each of Coke’s reports summarized the arguments before the court based on fact and on law, the judge’s rationale, and the final decision, recording the whole in detail for later consultation. Reaching 13 volumes, including 2 following Coke’s death, the Reports contained many of his most influential opinions. He also wrote several books for practitioners, but his greatest works were the four books of his Institutes on the Lawes of England, the first of which was his famous gloss on Littleton’s property book, Tenures, and the second of which contained his commentary on Magna Carta, which influenced English, French, and American ideas of a constitution as a separation of powers and a source of rights.

No one single conception of law is articulated in Coke’s books, speeches, and writings. Yet his ideas about the law are consistent over his long career, and they may be summarized as taking the form of four principles: as a measure of human conduct applied by professionals, as a set of rules common to all, as a limitation on officials, and as a source of rights.

With respect to the first, law as a principled measure of human conduct applied by professionals, Coke described the law as “artificial reason” arising from the study and practice of the law’s precedents and customs. He saw this study as taking “new corn from old fields,” relying on long-established principles of reason and right to govern new forms of conduct. Although criticized for a loose approach to history and precedent, Coke’s approach allowed him to apply the ideas as he saw them in Magna Carta and other constitutional instruments to the modern Parliament and monarchy of his age. He was thus permitted to summarize complex notions of property law and to apply the results to administrators, monopolists, and corporations. It also allowed him to argue in the Prohibition del Roi that only those educated in its methods and practiced in the law’s application could practice law or adjudicate cases, which would exclude the king from doing so. In the late 19th century, A. V. Dicey summarized Coke’s approach in An Introduction to the Law of the Constitution, with a rhetorical flourish appropriate to Dicey’s own project:

“Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning by which Coke induced or compelled James to forego the attempt to withdraw cases from the Courts for his Majesty’s personal determination. But no achievement of sound argument, or stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great Chief-Justice.”

With respect to the second principle, law as common to all, Coke developed a model of the law as a single national limit on all who would limit the freedom of others. The church, local barons, and specialized tribunals and corporations all claimed powers over individuals—powers that Coke successfully argued were reserved to the law courts of record. He issued countless orders of prohibition and praemunire, barring these extralegal institutions from arresting, imprisoning, or taking the property of ordinary individuals.

The third principle, law as a limit on officials, implied for Coke that law set standards of conduct for officials and ensured those subject to their authority that the procedures and rules of fairness embodied in the law could be enforced. Thus, in Semayne’s Case, a person who barred a sheriff’s man from entering his house without identifying himself committed no crime because “every man’s home is his castle.” In Rooke’s Case, a landowner ordered to pay for a drainage ditch was entitled to a hearing and to apportionment of the costs among the others who benefited.

Coke held that law was a source of and a limit even the powers of Parliament and the King. The King, he argued, could hold property only according to and within the protections of law and could exercise powers that were limited by what Coke argued was the ancient constitution of England. Parliament could not, as he noted in Bonham’s Case, enact a law against right and reason, by making a single entity both accuser and judge in its own cause. Judges, too, were governed by “what a judge ought to do,” including to rule in cases before them only according to the reason of law.

The fourth principle inherent in Coke’s legal theories is that law is a source of rights. Coke was pivotal in reframing the feudal common law into a law governing commerce and empire. In so doing, he took old ideas about property and recast them into new formulae that answered new questions. Chiefly, he protected what we would now call rights, but which he saw as those interests and privileges in property and offices that were understood as the result of long practice and custom, barring the King from taking privileges from Parliament, as in Bates’ Case, and barring Parliament from limiting the prerogative of the King, as in the Case of Non Obstante. Overall, Coke’s common law protected the customary rights of the subject from interference from all, whether from interference by a neighbor, a sheriff, the King, or Parliament.

 

Further Readings

Bowen, Catherine Drinker. The Lion and the Throne: The Life and Times of Sir Edward Coke (1552–1634). Boston: Little, Brown, 1991.

Boyer, Allen D. Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke. Indianapolis, IN: Liberty Fund, 2004.

———. Sir Edward Coke and the Elizabethan Age. Palo Alto, CA: Stanford University Press, 2003.

Holdsworth, William S. “The Influence of Coke on the Development of English Law.” Essays in Legal History. Paul Vinogradoff, ed. Oxford: Oxford University Press, 1914.

Hostettler, John. Sir Edward Coke: A Force for Freedom. Chichester, UK: Barry Rose Law Publishers, 1998.

Sheppard, Steve, ed. The Selected Writings of Sir Edward Coke. 3 vols. Indianapolis, IN: Liberty Fund, 2003.

Stoner, James R. Common Law and Liberal Theory: Coke, Hobbes and the Origins of American Constitutionalism. Lawrence: University Press of Kansas, 1994.

White, Stephen D. White. Sir Edward Coke and “The Grievances of the Commonwealth,” 1621–1628. Chapel Hill: University of North Carolina Press, 1979.

Originally published .