An Independent Judiciary: Edward Coke

Edward Coke (pronounced “Cook”) was more responsible for this than anybody else. Intellectual historian Murray N. Rothbard called him a “great early seventeenth century liberal.” Winston S. Churchill observed that “His knowledge of the Common Law was unique.” Historian George Macaulay Trevelyan considered him “one of the most important champions of our liberties.” Nobel Laureate F.A. Hayek referred to him as “the great fountain of Whig principles.”

Coke had a gift for expressing common law principles in unforgettable ways. “The common law,” he wrote, “is the best and most common birth‐​right that the subject hath for the safeguard and defense, not merely of his goods, lands and revenues, but of his wife and children, his body, fame and life…No man ecclesiastical or temporal shall be examined upon secret thoughts of his heart…the house of an Englishman is to him as his castle.”

Trevelyan credited Coke with “ferocious power of self‐​assertion, working through the medium of a legal learning, memory and intellect…At a dangerous period in the development of the constitutional struggle, it was he who first revived the theory that the law was not the instrument but the boundary of royal prerogative, and that the Judges were not, as his rival [Francis] Bacon declared: ‘lions under the throne,’ but umpires between King and subject.”

As a lawyer and judge, Coke worked with arguments based on precedents, which one might think would mean that if he couldn’t cite precedents he didn’t have a case. But he was the best at discovering precedents for liberty. If at times he claimed precedents went back farther and proved more than they actually did, he was almost always right about basic principles.

His Reports and Institutes did much to give the English a coherent constitution. Even Bacon conceded: “Had it not been for Sir Edward Coke’s reports…law by this time had been almost like a ship without ballast; for that the cases of modern experience are fled from those that are judged and ruled in former times.”

Although Coke embraced conventional religious beliefs, he promoted religious toleration. As Chief Justice of common law courts, he worked to keep many cases out of ecclesiastical courts which sentenced religious dissenters to be tortured, imprisoned or burned. He appointed Puritan ministers to the churches he owned. He hired an independent‐​minded secretary named Roger Williams who went on to establish Rhode Island as a sanctuary for religious toleration.

More than a jurist, Coke deserves much credit for the emergence of representative government. Under Queen Elizabeth I, Parliament was a cipher for the monarch. Members of Parliament lacked the ideological vision as well as practical experience to provide effective opposition or leadership. In 1621, 1624, 1625 and 1628, Parliament demanded that government ministers be accountable for their actions. Parliament articulated constitutional principles and took initiative in formulating policy. Coke framed the issues, served on more committees, delivered more committee reports and speeches than anybody else.

“Coke’s great influence both in the Commons and in Parliament as a whole is easily explained,” according to Wesleyan University historian Stephen D. White. “His extensive governmental experience both in and out of Parliament and his formidable legal reputation naturally brought him respect from other members. He had held many high offices in both central and local government…He had participated in every meeting of Parliament since 1589, had served as Speaker of the Commons in 1593, and was an expert on parliamentary precedents and procedure. And his published writings and his years as a judge and legal officer of the crown had established his reputation as the most eminent legal authority of the era.”

Coke has had an enormous influence in America. “The men of the American Revolution were nurtured upon Coke’s writings,” observed constitutional historian Bernard Schwartz. “To them, Coke was the contemporary colossus of the law.” Coke’s principal gifts to America: the independence of the judiciary and the principle that judges may overturn statutes which are contrary to the Constitution.

Biographer Catherine Drinker Bowen noted that “Coke stood out above a crowd, a noticeably handsome man, tall, big‐​boned, inclined to spareness. His face was oval and a trifle long; between mustache and pointed short beard the lower lip showed full and red. Dark hair, cut even with the ears, had as yet no trace of gray but had begun to recede at the temples, accentuating the height of his forehead. Coke’s eyebrows were heavy and smooth, his complexion somewhat swarthy; there were few lines to his face. His eyes, large, dark, and brilliant, bore the watchful look of a man ambitious and self‐​contained.”

Coke, to be sure, was often a difficult character. Historian Thomas Babington Macaulay wrote, “He behaved with gross rudeness to his juniors at the bar, and with execrable cruelty to prisoners on trial for their lives. But he stood up manfully against the King and the King’s favourites. No man of that age appeared to so little advantage when he was opposed to an inferior, and was in the wrong. But, on the other hand…no man of that age made so creditable a figure when he was opposed to a superior, and happened to be in the right.”

Edward Coke was born with law in his blood, February 1, 1552, in Mileham, Norfolk, England. His father Robert Coke was a lawyer practicing in London and Norfolk. His mother Winifred Knightley was the daughter of an attorney.

Coke graduated from Trinity College, Cambridge. Destined for a legal career, he began studying at Clifford’s Inn in 1571 and the next year transferred to Inner Temple. These were guilds where young men went to acquire knowledge of common law for professional practice.

Common law was the law which applied to everyone. It included Saxon legal customs, standard commercial practices for resolving disputes, Parliamentary statutes, judicial decisions and some royal decrees. In addition, there were treatises going back several hundred years, written by respected judges.

Judicial decisions weren’t systematically based on precedents, because it was difficult to determine what the precedents were. “Argument from decided cases, though frequent and persuasive,” noted English constitutional law scholar Charles M. Gray, “did not dominate courtroom dialogue. Prior decisions were sometimes followed by judges who professed not to agree with them, but they were sometimes rejected for reason or simply ignored.” Students of the common law had to learn “law French,” the language of common law pleadings, and Latin, the language in which medieval court records were kept.

Coke started practicing law in 1578. He spent a lot of time in Coventry, Essex, Norwich and London, and he always had a notebook which he filled with his observations about courtroom proceedings. He was to continue recording his observations for more than four decades — they became the basis of the published works that secured his reputation.

When Coke was 30, he married 17‐​year‐​old Bridget Paston who descended from a wealthy Suffolk family and came with a dowry of L30,000. He developed ties with Lord Burghley, a councilor to Queen Elizabeth. He held a number of official positions before the queen appointed him Solicitor General in 1592. She named him Speaker of the House of Commons the following year and then chose him over Francis Bacon to be Attorney General.

The two men were to be rivals for nearly three decades. Bacon, nine years younger than Coke, was the son of an Elizabethan courtier, the Lord Keeper of the Great Seal. Bacon, according to biographer Bowen, “was spare, quick, of middle height and decently proportioned figure…The hazel eye, neither green nor brown, had a darting quality…None could deny his brilliance.” Bacon learned law, pulled strings and got into Parliament. One of his secretaries was Thomas Hobbes who later distinguished himself as a theoretician for political absolutism. In his lucid essays (first edition, 1597), Bacon expressed admiration for Machiavelli’s political writings, made clear his distrust of Parliament and his belief in government power.

Queen Elizabeth died on March 24, 1603 and was succeeded by 37‐​year‐​old James VI of Scotland who became James I of Great Britain. A monarch was supposed to pay the cost of his palace and retainers with hereditary income, while Parliament financed national defense and wars, but James asked Parliament — taxpayers — to help cover his royal household expenses. “Clothes became richer and more extravagant,” reported Rutgers University historian Maurice Lee, Jr., “because both James and Anne liked to cover themselves with jewels…a feast for the court employed one hundred cooks for eight days, involved sixteen hundred dishes…” Moreover, wrote historian Paul Johnson, “James was a loutish savage. When hunting, he liked to plunge his bandy legs into the stag’s bowels…He delighted in getting the young court ladies drunk, and seeing them collapse in vomit at his feet.”

He was determined to assert his power. “The state of monarchy,” James maintained, “is the supremest thing upon earth. For Kings are not only God’s lieutenants upon earth and sit upon God’s throne, but even by God himself they are called Gods…” As Trevelyan wrote, “He knew nothing of the peculiar laws and liberties of England…His dogma of the divine right of Kings was gleaned from the new theory of State now in favour among the monarchies of the continent.”

Attorney General Coke emerged as a formidable man when he handled some sensational trials, and he soon challenged the king. The Court of the Exchequer ruled that tariff policy was the king’s jurisdiction, not Parliament’s. Coke insisted that Parliament’s approval was required since tariffs were for revenue. Biographers Hastings Lyon and Herman Block noted Coke’s crucial insight that if James controlled more revenue, he “would have a nearly complete system of extra‐​Parliamentary taxation, and Parliament would soon become an unnecessary assembly, with a consequent corruption of the State into tyranny.” Indeed, representative institutions were dying out in France and Spain as the monarchies there gained exclusive control of public finance.

In June 1606, Coke was appointed Chief Justice of the Court of Common Pleas which mostly handled private actions between citizens. When James issued a writ ordering people in England’s seaports to equip his fleet, Coke protested that the writ violated principles of liberty which were the “birthright and inheritance of the subjects of England.” James warned, “It is sedition in Subjects to dispute what a King may do.”

Meanwhile, Coke labored to share his knowledge of common law. He had begun issuing an annual Report on cases in 1600, and he continued until 1616. “Anything that could be gleaned in Westminster, London Guildhall or the circuit courts in the counties he set down in his own form and fashion, adding comment, aside, comparison,” noted biographer Bowen. “No law reports had hitherto been half so comprehensive; Coke must have lived and walked and sat and talked with notebook in hand. At once the books became — as Blackstone indicated in 1765—an intrinsic authority in the courts of justice.”

Coke objected to the king’s men trying to influence a judge when neither a defendant nor defense counsel were present for cross‐​examination. This became an issue in the case of Edmund Peacham, a Puritan minister summoned before the High Commission for criticizing a bishop. As Bacon reported to the king, “Peacham was examined before torture, in torture, between torture, and after torture…he still persisting in his obstinate and inexcusable denials and former answers.” Peacham died in prison.

In Bonham’s Case, Coke ruled that the common law stood above Parliament. Here Dr. Thomas Bonham was imprisoned for practicing medicine without a certificate from the Royal College of Physicians. Coke ruled: “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.” This was his most controversial decision.

In September 1610, Coke appeared before the Privy Council, which had the responsibility of advising the king on executive, judicial and financial business, and he dared to declare that the king’s proclamations didn’t have the force of law. The Privy Council upheld his view.

Coke issued “prohibitions” to curb the power of ecclesiastical courts, especially the High Commission, which imprisoned individuals for preaching Nonconformist doctrines. A prohibition ordered an ecclesiastical court not to proceed with a case if it might belong in a common law court.

James needed money, so he summoned Parliament in 1610, but reluctant Members drew up a Petition of Grievances. Coke declared: “I must fly to Magna Carta and entreat explanation of his Majesty. Magna Carta is called…The Charter of Liberty because it maketh freeman. When the King says he cannot allow our liberties of right, this strikes at the root.” James fumed against Parliament, saying “I am surprised that my ancestors should ever have permitted such an institution to come into existence.”

In 1613, Bacon persuaded James to try taming Coke by naming him Chief Justice of the King’s Bench which handled civil as well as criminal actions; and by promising him a seat on the 12‐​member Privy Council. “Coke will thereupon turn obsequious,” Bacon assured James. But after James granted income properties to the Bishop of Coventry, two men protested that the properties were theirs, not for the king to give away. In this Case of Commendams, Coke insisted that plaintiffs were entitled to a hearing despite the king’s objections, and he was dismissed.

“Coke had not striven in vain,” noted historian George Macaulay Trevelyan. “He had enlisted the professional pride of the students of the common law against the rival systems of law specially favoured by the Crown in the Star Chamber, the admiralty and the Ecclesiastical Courts. He had turned the minds of the young gentlemen of the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional function and of the political affinities of their profession…”

Coke was so desperate to regain a high position that he pressured his 14‐​year‐​old daughter Frances to marry John Villiers, the impotent older brother of James’ most influential advisor, George Villiers (later the Duke of Buckingham). This was the low point of Coke’s career. Although he didn’t get back his judgeship, he regained his position on the Privy Council.

James summoned Parliament which met on January 13, 1621, for the first time in seven years. James needed money, but Members were determined to pursue corruption. In particular, Bacon who had been appointed Lord High Chancellor, the top‐​ranking position outside of the royal family. On March 17th, Coke, who had emerged as the leading prosecutor, used the fateful word “bribe” and warned that “A corrupt judge is the grievance of grievances.” The list of Bacon’s loot included a diamond ring, gold buttons, furniture and wine as well as cash. Bacon was impeached, dismissed as Lord High Chancellor, fined L40,000, imprisoned in the Tower of London and banished from London and the law courts. Historian Lord Acton later remarked, “the Commons, guided by the most famous English lawyer, Coke, struck down Bacon, and deprived the Stuarts of the ablest counselor they ever had. Impeachment and responsibility of ministers remained.”

On December 18th, James dissolved Parliament got even by having his tormenter imprisoned. Coke endured a damp, bitter cold, urine‐​soaked cell in the Tower of London. Denied access to books, he wrote Latin verses with pieces of coal. After seven months, officials admitted they couldn’t find any evidence of wrongdoing, and he was released.

Coke led the attack on government‐​granted monopolies of wool, brick making, glass making, salmon fishing and the transcribing of wills. “Generally,” he contended, “all monopolies are against the great Charter, because they are against the liberty and freedom of the subject, and against the law of the land.”

James died on March 27, 1625. He had achieved a long period of peace which enabled the English to prosper, but he left a debt of over L200,000. His 24‐​year‐​old son became King Charles I, and right away he began spending money at a reckless pace. He borrowed L60,000 to finance the most spectacular funeral ever seen in England. To help secure an ally against Spain, he married the 15‐​year‐​old French Catholic princess Henriette Marie, and this cost him a bundle even though she came with a big dowry.

Charles summoned Parliament in May 1625 because he wanted money for military adventures. When Parliament wouldn’t give him as much as he wanted, he dissolved it and resorted to conscription. The government rounded up as many able‐​bodied men as they could find around the port towns. Private individuals were forced to feed and house the conscripts. This provoked unrest and resulted in martial law. Charles summoned Parliament and again demanded money, but the House of Commons began impeachment proceedings against his advisor who had promoted military adventures. On June 12, 1627, Charles dissolved Parliament.

“At the back of the Parliamentary movement in all its expressions lay a deep fear,” explained Winston S. Churchill. “Everywhere in Europe they saw the monarchies becoming more autocratic. The States‐​General, which had met in Paris in 1614, had not been summoned again; it was not indeed to be summoned until the clash of 1789. The rise of standing armies, composed of men drilled in firearms and supported by trains of artillery, had stripped alike the nobles and the common people of their means of independent resistance.”

Charles ordered that tariff revenue go into royal coffers, without Parliamentary approval. He resorted to forced loans which raised an estimated L260,000. Seventy‐​six men refused to hand over their money, and they were denied the right to a trial and imprisoned.

Charles wanted even more money, and on March 27, 1628, he summoned Parliament for the third time. Coke presented a bill which specified that no one could be imprisoned more than three months without being brought to trial. The House of Commons approved resolutions saying that nobody should be imprisoned unless the government specified the charges, and the writ of habeas corpus must not be denied. When the House of Lords defended prerogatives claimed by the king, Coke warned that the prerogatives had no basis in English law.

The king continued to make demands, and on May 8^th Coke proposed that Parliament adopt a Petition of Right on “1. The personal liberty of the subject. 2. His propriety in his goods. 3. Unbilletting of soldiers. And 4. Silencing of martial law in time of peace.” Charles insisted on his prerogatives, but Coke remained defiant. On June 8th, Charles met both Houses of Parliament at 4:00 in the afternoon. He capitulated and accepted the Petition of Right as law.

“We reach here,” wrote Churchill, “amid much confusion, the main foundation of English freedom. The right of the Executive Government to imprison a man, high or low, for reasons of State was denied; and that denial, made good in painful struggles, constitutes the charter of every self‐​respecting man at any time in any land. Trial by jury of equals, only for offenses known to the law, if maintained, makes the difference between bond and free.”

Coke retired to Stoke House in Stoke Poges, Buckinghamshire, just west of London, where he completed his life work. This place was a splendid manor with diamonded windows, formal Italian gardens and a thousand acres of woodland. Coke prepared commentaries on Thomas Littleton’s Treatise on Tenures, one of the most important English law books.

While his health declined in 1634, the Privy Council issued a warrant to search his house, and police seized manuscripts for his Institutes as well as two unpublished volumes of Reports. Coke died at Stoke House on Wednesday, September 3, 1634, around 11 P.M. A month later, he was buried in the church graveyard at Tittleshall, about six miles southwest of Fakenham, Norfolk, next to his first wife.

Charles disregarded the Petition of Right and refused to call another Parliament for 11 years. But Coke’s principles inspired John Lilburne and other English freedom fighters. When Parliament met in 1640, it arranged for publication of the Institutes because they “contain many monuments of the subject’s liberties.” The Second Part of the Institutes appeared in 1642, a commentary on Magna Carta and almost 40 other charters and statutes. The Third Part of the Institutes (1644) discussed many more laws. The Fourth Part (1644) covered Parliament.

By the time of the Glorious Revolution (1688), long‐​standing English grievances had been resolved. The monarchy had a Protestant succession. There was a considerable degree of religious toleration. People were protected from arbitrary search and seizure. They couldn’t be held in prison unless formal charges were filed, alleging violation of a law. Above all, the power of the monarch was limited by Parliament which had achieved supremacy. Ironically, this meant judges couldn’t overturn an act of Parliament. Judges could only rule that the government exceeded the powers granted by a statute.

In America, Rhode Island’s founder Roger Williams wrote, “his example, instruction, and encouragement have spurred me on to a more than ordinary, industrious, and patient course in my whole course hitherto.” Thomas Jefferson remarked that “Coke Lyttleton was the universal elementary book of law students and a sounder Whig never wrote nor of profounder learning in the orthodox doctrines of British liberties.” Patrick Henry, John Adams, John Quincy Adams, John Jay, Daniel Webster and many other influential Americans read Coke. Historian Bernard Schwartz observed that “The influence of Coke may be seen at all of the key stages in the development of the conflict between the Colonies and the mother country.”

Although judicial review had disappeared from England, it took hold in America. “The institution that best embodies this idea,” wrote Schwartz, “is the United States Supreme Court.” New judges naturally tended to reflect the views of the politicians who appointed them, but those politicians didn’t have the power to fire judges they disagreed with.

While judges have made plenty of bad decisions, at least they have the power to strike down unconstitutional statutes, and sometimes they do. This is a big advance from the era when judges were everywhere intimidated into doing what a ruler wanted. Eloquent testimony to the vision, courage and devotion of Edward Coke.

Reprinted from The Triumph of Liberty by Jim Powell.