Edward Coke ( 1552–1634 ) was the most prominent jurist in England at the time when the American colonies were settled. From the late 1580s until his death, Coke played prominent roles in Parliament, in the English judiciary, and in service to English monarchs. He served as solicitor general and attorney general under Elizabeth I and James I. After Coke's successful prosecution of the perpetrators of the Gunpowder Plot of 1605, James I appointed him the chief justice of the Court of Common Pleas and, later, chief justice of the King's Bench. After James forced Coke off the bench, for his disallowance of royal interference in judicial decisions, Coke was elected to Parliament, of which he was a prominent member during the 1620s. In retirement, Coke finished the Institutes of the Laws of England, which became the standard text for the common law until William Blackstone's Commentaries on the Laws of England was published more than a century later.
Coke (pronounced “cook” ) was born in 1552. His father, Robert Coke, was an attorney of some significance. His mother, Winifred Knightley, came from a rising middle-class family with legal connections. Coke studied at Trinity College, Cambridge, from 1567 until 1570. He then studied law in London, where he became a member of the bar in 1578. He was married twice, happily to Bridget Paston, with whom he had ten children, from 1582 until 1598 and, immediately after she died, less happily to Elizabeth Hatton, with whom he had two children, from 1598 until his death in 1634.
Bonham's Case, 77 Eng. Rep. 646 ( 1610
Prohibitions Del Roy, 77 Eng. Rep. 1342 ( 1607 ), is another instance in which Coke fought for judicial power and independence. The controversy arose when James I sought to intervene in conflicts between common law and ecclesiastical courts. Coke insisted that monarchs were prohibited from deciding cases and making judicial rulings. He stated, “the King in his person cannot adjudge any case, either criminal … or betwixt party and party, … but this ought to be determined and adjudged in some Court of Justice, according to the law and custom of England” ( 77 Eng. Rep. at 1342 ). Kings were unfit to decide cases, Coke reasoned, because law was a science that required extensive training. Cases “are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience” ( 77 Eng. Rep. at 1343 ). When James I responded with severe displeasure, Coke allegedly declared, in Latin, “quod Rex non debet esse sub homine, sed sub Deo et lege,” which means, “the king is under no man, yet he is under God and the law” ( 77 Eng. Rep. at 1343 ). Whether these words were actually said is contested ( Usher 1903 ), but both English and American justices were inspired by Coke's account of his encounter with James I.
While on the English Judiciary, Coke waged a steady fight against ecclesiastical and prerogative courts, seeking to limit them primarily to purely religious matters. He consistently issued writs of prohibition, seeking to prevent cases he believed appropriate for the common law to be judged by religious tribunals or by equitable standards in the Court of Chancery. Coke sharply narrowed the use of the “oath ex officio.” This oath, often used to root out suspected heretics, required a person to swear to tell the truth before that person knew what questions would be asked. In Of Oaths before an Ecclesiastical Judge ex officio, 77 Eng. Rep. 1308 ( 1607 ), Coke limited the use of the oath ex officio to cases involving marriage and wills. In other circumstances, people had the right to keep their religious beliefs private. “No man ecclesiastical or temporal shall be examined upon secret thoughts of his heart, or of his secret opinions; but something ought to be objected against him what he hath spoken or done” ( 77 Eng. Rep. at 1308 ), Coke's opinion asserted. Although Coke penned these words as part of his effort to strengthen common law courts, his attack on the oath ex officio played an important role in the development of the right against self-incrimination in English and American constitutional law.
Initially, James I, unhappy with Coke's consistent efforts to make the judiciary more independent of the monarchy and goaded by the jurist and statesman Francis Bacon ( 1561–1626
Coke returned to English politics as a member of Parliament in 1620, where he stayed for almost a decade. He quickly became a leader of those members of the House of Commons who were committed to reducing the king's prerogative. Coke helped draft the Remonstrance of 1621, which asserted a parliamentary right to discuss whatever topics Parliament believed needed to be addressed in legislative discussions. Coke was also one of the drafters of the Statute of Monopolies ( 1624 ). Royal grants of monopolies had become a leading source of royal funds but also a barrier to economic growth. Monopolies, as declared in the statute Coke helped write, “are altogether contrary to the Laws of the Realm, and so are and shall be utterly void and of none effect.”
Coke played his most important parliamentary role during the process that led to the Petition of Right ( 1628 ). Increasingly desperate for funds, Charles I demanded that the gentry lend the government money and imprisoned those who refused. The King's Bench in Darnell's Case, 3 How. St. Tr. 1 ( 1627 ), ruled that kings did not have to provide any reason for detaining subjects. Coke and other members of Parliament reacted swiftly. Coke helped draft and shepherd through the legislative process a bill that declared against the law of the land all royal efforts to imprison without cause, raise funds without parliamentary approval, impose martial law, and quarter soldiers. “Loans against the will of the subject,” Coke declared on the floor of Parliament, “are against Reason, and the Franchise of the Land” ( Graber and Gillman 2015, 471 ). With respect to the holding in Darnell's Case, Coke asserted, “A freeman imprisoned without cause, is so far from being a Bondman, that he is not so much as a man, but is indeed a dead man, and so no man; imprisonment is in law a civil death” ( Graber and Gillman 2015, 473 ).
Coke spent the last years of his life in retirement finishing the final volumes of Coke's Reports and the four volume Institutes of the Laws of England. Coke's Reports contained edited versions of the common law cases handed down through much of Coke's adult life. They were and largely remain the main source for common law decision making in the late sixteenth and early seventeenth centuries, although readers should be warned that their accuracy cannot always be vouched for. The four-volume Institutes of the Laws of England was Coke's major treatise on the common law, covering all common law subjects from property to the criminal law. For nearly two hundred years, the study of law was largely the study of the Institutes.
Americans celebrated Coke as the oracle of the common law. His opinion in Bonham, intended or not, became a foundation for the American practice of judicial review. His rebuke of James I in Prohibitions Del Roy became a foundation for judicial independence. The Petition of Right is presently seen as the foundation of habeas corpus as a writ of liberty. Although more Americans turned to Blackstone than Coke for their knowledge of the common law at the time of the Framing, both the Institutes and Coke's Reports continue to be cited frequently in American courts.
SEE ALSO Blackstone, William ; British Constitution ; Common Law ; Constitution ; Constitutional Government ; Constitutionalism ; Judicial Independence ; Judicial Review ; Limited Government ; Parliament ; Representation: Idea of ; Rule of Law .
Bowen, Catherine Drinker. The Lion and the Throne: The Life and Times of Sir Edward Coke. Boston: Little, Brown, 1957; repr., 1990.
Coke, Edward. The Selected Writings and Speeches of Sir Edward Coke. 3 vols. Edited by Steve Sheppard. Indianapolis, IN: Liberty Fund, 2003. http://oll.libertyfund.org/titles/1884 .
Graber, Mark A., and Howard Gillman. The Complete American Constitutionalism. Vol. 1: Introduction and the Colonial Era. New York: Oxford University Press, 2015.
Usher, Roland G. “James I and Sir Edward Coke.” English Historical Review 18, no. 72 (1903): 664–75.
Mark A. Graber
University of Maryland Carey School of Law