CHAPTER EIGHT Sir Edward Coke

Having playfully suggested in the essay on Sir Thomas Littleton that the appropriate motto for Littleton would have been “One Law and One Book,” the author must reveal at the outset that the tomb of Littleton’s great commentator, Sir Edward Coke, carries a Latin inscription exalting the deceased as “ Duodecem Liberorum Tredecim Librorum Pater” Father of Twelve Children and Thirteen Books.¹ The tally of the children is accurate and thirteen books is dead-on for the eleven volumes of Reports published in Coke’s lifetime, his Book of Entries (1614), and his First Institutes, the volume known as Coke upon Littleton (1628).

Coke’s reference to “helmet” strikes the right note of bellicosity. Throughout his life and long career as advocate, judge, councillor, and parliamentarian, Coke was a fighter: toughly adversarial, aggressive, nev­er wont to lose a case by faint prosecution. Like the true soldier, he was courageous under fire, resilient in defeat, and magnanimous (only) in vic-

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Edward Coke came from an old and modestly well-to-do family of Nor­folk gentlemen. Born in 1552 at his father's manor house at Mileham, he was the only boy among seven sisters. At the grammar school in the cathedral close in Norwich he acquired a mastery of Latin grammar and rhetoric that got him into Trinity College, Cambridge, in 1567 and never deserted him. Coke's reputation for learning owed a great deal to his Latinity, in an age when education meant a command of that language above all else. The rhetoric of Latin was the foundation of his logic. Its grammar, vocabulary, and syntax furnished the mortar, stone, and chisel of those finely wrought Latin maxims which he tossed off with abandon to embellish his obiter dicta and lend them an antiquity and authority that seduced his contempo­raries and corrupted his successors. Its philology and etymology provided the foundation of his grasp of English and Law French and the source of his legal-historicism. Absent his Latinity, Coke might have been easier reading, but his written corpus would have been poorer in substance and lessened in persuasiveness. He left Cambridge without taking a degree, but that uni­versity, which he would always revere as alma mater, made no mistake in later conferring upon him the degree of Master of Arts, for although Coke wore the lawyer's robe and not the parson's surplice he was marked by his bookishness and his accomplishments as a true son and disciple of scholas­tic learning.

Coke was of the last generation of English barristers who as a matter of course would pass a year or two at one of the inferior Inns of Chancery be­fore going on to an Inn of Court. The commendable justification for such a sojourn was that the fledgling barrister would learn something about the chirographic and procedural, the clerical and “paper,” side of the law before proceeding to the superior Inn of Court to learn the law. The denizens of

This content downloaded from the Inns of Chancery were court clerks and attorneys, clearly inferior in professional function and also — almost by necessary deduction-inferior in social status to the advocate-barristers who peopled the Inns of Court. In Elizabethan England, an increasing definition of the distinction in status (rather than a distinction in function) impelled the governing barristers of the Inns of Court, the benchers, to exclude the attorneys from their “com­pany” and to confine them to the Inns of Chancery. The benchers acted not only from their own inflated self-esteem but also responded to the re­ality that the sons of noblemen and squires flocking to the Inns of Court for a year or two introduction to the common law would not tolerate the company of their social inferiors or admit that anything useful could be learned from them. The clerks and attorneys were to keep their place in the Inns of Chancery, while real gentlemen maintained their exclusivity in the Inns of Court. What was lost to the future barrister was intimacy with the entire adjective dimension of the law, an immediate comprehension of how and even why so much of the law was process rather than substance. Young Edward Coke was lucky in a way his successors would not be. His year at Clifford’s Inn, after he left Cambridge and before he entered the In­ner Temple in 1572, reinforced his almost medieval scholastic bent, enabled him to perceive the law from the bottom up, and taught him all of the method and some of the skills of the legal draftsman.

In his six years’ studentship at the Inner Temple—he was admitted in April 1572 and called to the bar in April 1578 —Coke progressed rapidly through the exercises: moots, which were exceptionally long and compli­cated at the Inner Temple; simple “case-putting”; attendance at readings, the twice-yearly lectures on statutes; residence; court-sitting. In the twilight of his career, Coke would deprecate the value of the readings as “long, ob­scure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened, they vanish away like smoke.”³ One supposes that he excepted from this harsh judgment his own readings, one at Lyon’s Inn in 1579 and the other at the Middle Temple in 1592.⁴ Yet Coke’s own experience as a student at the Temple gave point to the convention that the informal activities at the Inns were as much a feature of legal education as the formal exercises. Tradition has it that during his last year before his call to the bar, Coke led a student rebellion against the Inn’s cook for the poor

This content downloaded from food served in hall. He drafted a Latin bill of particulars against the cook, arguing that the cook in his malfeasance had breached his engagement with the Inn (and its students), and presented the case personally before the benchers to the admiration of his fellows and the favorable notice of his superiors. The records of the Inn are silent as to the outcome, indeed, silent as to whether or not the incident actually occurred.⁵ But henceforth, thanks to the so-called “The Cook's Case,” there would be no end of puns on the name of Edward Coke, pronounced “cook” by his contemporaries.

Coke's early rise in the profession was meteoric. He held a readership at Lyon's Inn a year after his call—a rare, perhaps unique, honor for one of such short continuance at the bar. He soon enjoyed a large practice; he rode the Norfolk circuit, and many of his early clients came from his East An­glian home counties, Norfolk and Suffolk. Within a decade he had joined the front-rank of leaders, men who were widely sought after as advocates and counselors, enjoying practices that were genuinely national. His ap­pointment in 1586 as recorder of Norwich—that is, as counsel to the urban corporation and judge of its criminal courts—was a belated recognition of his regional reputation; the year before, he had been named recorder of Coventry in the west Midlands, a clear mark of his national reputation.

Coke early gained a reputation as a masterful conveyancer. His years as a practitioner corresponded with the heyday of attempts to create extrava­gant, even bizarre, interests in property by pushing the Statute of Uses be­yond the extremes of logic to allow legal interests to be created which were in complete defiance of the rules of the limitations of estates at common law. Most of these interests were created to settle landed estates, and a good many of them raised the threat of perpetuities.

Coke patently did not like perpetuities: he reported, with ill-concealed glee, a number of the cases in which the courts averted the threat by judi­cial surgery. The contingent remainder was the first culprit. No sooner had that interest been fully accepted, in Colthirst v. Bejusin (1550),⁶ than the peril of perpetuities was perceived, and the courts turned to cutting back the contingent remainder. This surgery was largely completed in Shelley^,s Case,⁷ decided the year after Coke's call—his first great case, and perhaps the first one that he reported.

This content downloaded from by way of uses that they would not accept by way of limitations at law. Not until Chudleigh' Case (1595) was the danger of such perpetuities by way of uses broken, by the simple expedient of holding that the legislative intent of the Statute of Uses was to make limitations by way of uses subject to the rules governing estates at common law.⁸

From the property lawyer's vantage point, these were exciting times. Coke's practice, like those of his less eminent contemporaries, relied on the fast legal footwork necessary to keep at least one step ahead of the courts and one step away from the crash of an instrument. He wrought well. A conveyancer's form-book in its fifth edition in 1683 contains an exquisite settlement drafted between 1584 and 1592 for Henry, 9th Baron Scrope, by a number of counsel, inter alios Edward Coke.⁹ The longevity of this device owed all to the fact that its settlement was limited by way of two life estates, which put it outside of the strictures against contingent remainders, succes­sive life estates, and even the legal executory devise (which was developed sometime after 1620) as devices creating perpetuities. The Scrope settle­ment epitomized the modest, cautious, device of two lives which proved a thoroughly workable means to effect settlement without raising the specter of perpetuities. It was also the foundation of the brilliant device of Or­lando Bridgman in the mid-seventeenth century, the “strict settlement,” which passed muster under Lord Nottingham's rule formulation of the rule against perpetuities in the Duke of Norfolk’s Case (1681) and served the landed aristocracy of England well for two centuries until the Settled Land Act of 1882 made all settled land alienable.¹⁰

Coke was honored in his own land when the Inner Temple made him a bencher in 1590 and called him Reader in 1592. In 1592-1593, Coke also entered upon a higher career on a greater stage. He was appointed Solici­tor-General, the second law officer of the Crown; made recorder of Lon­don, a post that almost invariably went to a barrister high in regal favor; and named Speaker of the House of Commons in the Parliament of 1593. This last was also a mark of royal favor, the role of the Speaker being to maintain the monarch's interests in the House. Coke had sat only once before as MP for a Suffolk borough in the previous Parliament of 1589. In 1593 he enjoyed the greater prestige of being returned to the Commons as one of the two knights of the shire for Norfolk. As Speaker, Coke presided over a contentious but productive session, during which the House and the Queen clashed, over parliamentary meddling in ecclesiastical matters. His skill in serving both the jealous master which was the House and his even more jealous mistress the Queen damped controversy. Coke's reward came

This content downloaded from exactly one year after Parliament ended. He was appointed Attorney-Gen­eral on April 10, 1594.

The Attorney-Generalship was a mixed blessing for a lawyer who hoped to attain judicial office. It meant foregoing the chance to become a serjeant- at-law and thereby to practice in Common Pleas, where serjeants alone had audience, and to enjoy the fairly steady odds of becoming a judge of King's Bench, Common Pleas, or the Exchequer. The Attorney-General had at best a vague spes successionis to a chief-justiceship, at worst to the post of Master of the Rolls (the second highest office in Chancery). In terms of income from fees, the office was not inferior in profit to that of a serjeant's practice, and usually was worth more. The Attorney-General was not barred from private practice; rather, the office attracted clients as none other did. The greatest drawback might well be the work it entailed. The Attorney-Gener­al was required to appear in all prosecutions brought for the Crown in Star Chamber, all major prosecutions in King's Bench, all cases enforcing regal rights in the Exchequer, and prosecutions in great matters of state before any court. He was also involved in criminal investigation touching impor­tant matters, requiring his presence at interrogations of suspects (some­times by torture). He drafted proclamations, pardons, and Crown bills for Parliament. He was constantly called upon for legal advice to the Crown, opinions on points of law, and drawing cases to be put to the judges for ad­visory opinion. He represented the Crown's interests in such rudimentary appeals as the law allowed. He also attended the House of Lords during the Parliament in an advisory capacity. He enjoyed considerable procedural privileges in all judicial proceedings and he was accorded precedence over all other barristers. But he worked hard for such advantages as the office brought, and if it brought him a large private clientele, he dared not favor those clients in the performance of his official duties.

Coke's tenure of a dozen years as Attorney-General proved particularly onerous. High taxes, Continental markets closed by war, and a succession of crop failures brought want and economic dislocation, creating a threat­ening undercurrent of unrest. It was a period marked by growing politi­cal disgruntlement, religious divisiveness, acts of subversion, conspiracies against the monarch's person, and divisions in the principal organ of state, the Privy Council. Because of the necessity to raise money for a sea war against Spain and civil war in Ireland, Parliament became almost a routine institution, which meant that dissent could be voiced and local feuds were pursued at Westminster. Attorney-General Coke was called upon to bring to the brutal justice of the age Roman Catholic priests, rioting apprentices,

This content downloaded from bumpkins who talked of seizing armories, and traitors who plotted against the Queen's life, including her own physician. More ominous, if less nu­merous, were the first prosecutions resulting in death for Protestant secta­ries. As Attorney-General, Coke managed the prosecution in three of the greatest state trials in England's history: the trial of the Earl of Essex and his followers for the coup d'etat attempted in 1601; the trial of Sir Walter Ra­leigh and co-conspirators, shortly after James's accession, for planning to kill the monarch and put the king's cousin Arabella Stuart, on the throne; and the trial of the Catholic fanatics who in 1605 attempted the most spec­tacular stroke of political terrorism in history, to blow up the King and the entire Parliament with gunpowder. Coke's vigorousness and harshness in prosecution were remarked upon by his contemporaries only as mani­festations of remarkable patriotism and loyalty to his sovereign. Victorian Englishmen, largely unfamiliar with war or treason, enjoyed the luxury of roundly condemning Coke for his choleric severity. Our age ought to be better disposed to understanding him.

In 1605, the first chief-justiceship (that of the Common Pleas) to open since Coke became Attorney-General fell vacant with Edmund Anderson's death. It was filled by another ancient Templar, Francis Gawdy. Coke's dis­appointment ended when Gawdy died less than a year later. In June 1606, Coke was made serjeant-at-law—a requisite step to the Common Pleas bench, though pro forma in his case—and a day later was made Chief Jus­tice of the Common Pleas.

At fifty-four, Coke was old by contemporary standards. He had buried one wife (Bridget Paston, who had brought him a fortune, died in 1598) and he might well have wished to bury the second, a harridan he had mar­ried after less than six months' mourning for Bridget. His second wife, Lady Elizabeth Hatton, had been the young, high-spirited widow of an el­derly knight; her grandfather, Lord Burghley, had he lived the few months required to see Elizabeth marry Coke, would have approved, if for no other reason than Coke's having beaten Francis Bacon to the widow. Elizabeth was given to histrionics and angry demonstrations. Self-willed, demanding, a prodigal spender, she gave Coke two daughters, denied him peace, sued him in Star Chamber, deserted him and stripped his house of its furnish­ings. Having outlived him, she spoke a venomous epitaph of him: “We shall never see his like again, praises be to God.”¹¹ The scandal and indignity visited upon Coke by this unfortunate union placed him at considerable disadvantage at critical points in his judicial career. It eroded his reputation for integrity, pushed him to excesses in conduct, and played into the hands

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of Bacon. Bacon never forgot Coke's having been preferred for the Attor­ney-Generalship or his success in winning the widow Hatton and a fortune that Bacon desperately needed. Whatever else led to two great falls by Chief Justice Coke, Bacon's enmity contributed mightily.

The rapidity with which Coke as Chief Justice of the Common Pleas assumed an adversarial, even hostile, stance toward regal policy has puzzled generations of scholars. As Attorney-General he had been the quintessen­tial “king's man.” As a judge, Coke repeatedly took positions that appeared inimical to the Crown interest. The explanation must be complex, if for no other reason than that Coke was a complex man. What can be largely excluded from consideration at the outset is the notion that the explanation lies in some external factors, in regal policies or regal ambitions, in some changes in royal personnel that both signaled and effected basic changes in direction of government. If one looks for the explanation in some seismic change in royal policy to which Coke responded, he will not find it. James and his political and legal advisers did not forsake goodness for evil, not even gradually, let alone suddenly clamp down on previous constitutional practices or English liberties. Rather, the explanation must be sought in Coke himself, in the context of his learning and of his role.

The first thing to be noticed—and it can be easily overlooked—is that Coke was the first judge of Common Pleas in almost a century who had never practiced in that court as an advocate. He had been a serjeant for only a day, and this lack of experience markedly distinguished him from his pre­decessors and his three brother judges on the court. That is not to say that he was ignorant of what went on in Common Pleas; his Reports, presenting cases decided in Common Pleas before he joined its bench, indicates that he was intellectually familiar with its doctrine and even its procedures, and well aware of the nature of its peculiar and limited jurisdiction to party-and- party property litigation. What Coke lacked was immersion (the phrase is his own) in “the course of the court.” Coke would have been the last to have disparaged the importance of that experience, for he recognized the course of a court as the true foundation of precedent to be followed by that court.¹² He did not, however, think like a Common Pleas jurist. Untouched by the tradition of the court, Coke was impatient of the experientially im­posed intellectual and sentimental limitations on the way a Common Pleas jurist thought.

Coke came to Common Pleas, then, fully formed, without the deforma­tion professionelle of his brother justices. Moreover, his experience at the bar had been gained in two courts where the common law was undergoing

This content downloaded from most rapid development: King's Bench and Star Chamber. In great part, that development meant the rapid expansion of jurisdiction. In the years in which Coke had practiced there, the King's Bench had acquired a wide and growing jurisdiction in civil actions; during his tenure as Attorney-Gen­eral, Star Chamber, ostensibly a court of criminal jurisdiction, became even more openly a tribunal for obtaining civil remedies.¹³ Indeed, in the case of Star Chamber, Coke had himself played a large part.

Judicial development also meant an increasing emphasis on precedent as the basis for legal change. Here, a fine line must be drawn if we are not to misunderstand Coke's view of precedent and its relationship to the law. One of his more striking maxims makes clear his meaning:

New adjudication does not make new law, but makes plain the old; adjudica­tion is the dictum [saying] of law, and by adjudication law which was before hidden is newly revealed.¹⁴

The law existed; it was not created by the court. Only statute could make new law. Therefore legal change, as Coke understood it was the process and result of revelation. There was a close analogy here to the concept of theo­logical revelation as the medieval Church had understood it. Coke, ever the schoolman, with his fondness for the Vulgate and his shelves of religious tracts, was well-equipped to appreciate this.

To believe that the existence of the law was revealed by adjudication was not a discouragement of judicial activism. On the contrary, it invited it. It reassured the judge that he need not let go the old in pursuit of the new, the established for the novel, the real for the merely theoretical. The idea was almost a license for judicial activism. a patent authorizing the discovery of new law. Coke was, above all else, an activist. As a judge he was a judicial activist.

What was a judicial activist to do on a court which was mired in the most exquisitely sophisticated doctrinal construct of the most fully fash­ioned body of substantive law—property law—that the age knew? He could, according to the lights of that “artificial reason of law” which Coke posited as the jurist's method, refine the law to broad jurisprudential policy ends in order to suit the existing corpus of law to new requirements. As far as he could, Coke certainly did just this in his seven years on the Common Pleas bench, as his own reports testify, carrying his brethren with him in most instances and, when they differed with him, ignoring them in favor of his own position. But there was something else the judicial activist could do, especially if he enjoyed the latitude for individual initiative in proce­dural matters which the presidency of the court afforded him (and him

This content downloaded from alone). He could battle, indeed would feel himself bound, to maintain and expand the jurisdiction of the court against all other tribunals. This too, Chief Justice Coke certainly did, employing an old common law writ: the writ of prohibition. Prohibitions had already been used against the eccle­siastical courts and had elicited episcopal complaint before Coke took his seat on the bench, but Coke used prohibitions with a hitherto unknown prodigality and broadened scope. The writ could be directed against any court, secular or ecclesiastical, to prevent the continuance of a case which the court issuing the prohibition claimed was not within the other court's jurisdiction. During Coke's tenure as Chief Justice of the Common Pleas, most of the shower of prohibitions loosed by him fell upon the ecclesiasti­cal courts because of their determination to maintain jurisdiction over cases for tithe, but prohibitions were also directed to Chancery, Requests, Wards and Liveries, the regional Councils in Wales and the North, the High Court of Admiralty, and a number of other jurisdictions. Two major courts were excepted: King's Bench and Star Chamber. The reasons are many and diffi­cult to apportion, but among them was Coke's residual reverence for those courts and how they were refining the law to proper ends pro bono publico.

Prohibitions brought Coke into confrontation with all those vested in­terests represented in the courts to which they were directed, not least the litigants. Coke made enemies, including Lord Chancellor Ellesmere and two successive Archbishops of Canterbury. And his enemies were closer to the king than Coke was. Prohibitions became a standing grievance against Coke, and not without reason, for Common Pleas's issuance of prohibi­tions could be seen as mere dog-in-the manger attempts to acquire more business for Common Pleas and profit for its judges, as a restrictive prac­tice on the free-wheeling forum-chasing which characterized litigation at the time, and as a pernicious device to unsettle the harmony of judicature. This is not to question the motives of Coke. It is to explain why he was no sooner on the bench than he began to stir up opposition to his own person and fall afoul of the king, who was the ultimate arbiter of judicial propriety and who stood to lose the most if judicature fell warring within itself.

More than a court's business and jurisdiction lay behind Coke's activ­ism. He took an exalted view of the role of the judiciary, based upon his historical perception of the institution's antiquity, its integrity in the civil polity, and its responsibility for the maintenance of its charge, the law. In 1600, a reporter of the Star Chamber noted: “A sayinge of Mr. Atturnie [Coke] often used by him in his arguments, that it is his duetie to informe ther lordships of the trueth and state of the cause and then that the judge-

This content downloaded from ment is thers.”¹⁵ Judgment imposed a unique burden upon the judge, one not shared by counsel whose “duetie” was to open the truth of the matter so far as he was able. And as Attorney-General Coke acknowledged, even his client the monarch did not share the burden of judgment if the crown were before the court in a legal way. Coke understood perfectly the adver­sarial dialectic of the law. For all of the monarch's prerogative and privi­leges, despite his immunity to prosecution and suit by others, admitting him to be the fount ofjustice, when the king was at law he was substantially on the same footing as any other party. He was to be heard, but judgment belonged to the judges. Here was the point of friction between Coke and James. For James saw the judge as merely his delegate, with revocable pow­ers, an advisor whose counsel was to be accepted or rejected as the principal willed. James would not interfere with the ordinary course of judicature. But when he believed a vital interest of the crown was at stake in law, the king expected his judges to advise him and recall that they held their offices as his delegates.

Had it not been for a practice of long standing, Chief Justice Coke and his profligacy with prohibitions would have been merely a painful nui­sance. What caused Coke to become increasingly considered a threat, by the king and his ministers, was the attitude that Coke struck with respect to advisory opinions elicited from the judges by royal command. Obtaining judicial opinions had been an infrequent practice from at least the middle years of Elizabeth's reign, but was considerably expanded by James. At the outset Coke did not object to the procedure, but he early showed himself prickly toward regal interests in such matters. In the fall of 1608, James and the Council conferred with all the judges on the validity of prohibitions upon the complaint of the clergy. Coke spoke for his brethren in upholding the legality of prohibitions. But he went further, speaking only for himself, in answering James's claim to be able to decide such matters himself. Coke told the King that though the law was reason and the King had natural rea­son, he could not personally exercise judicature because he lacked training and experience in applying the “artificial reason” of the law, an attainment that could be acquired only by long study. James exploded: then he would be under the law? Coke's rejoinder became legendary. He cited Bracton's immortal axiom, that the King was under God and the law (ignoring the likelihood that Bracton meant natural law, not the common law). During a further series of confrontations between James and the judges, the dispute ended with a frightened Coke on his knees if not his face before an out­raged monarch.¹⁶

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In these instances and in others, even if he sometimes spoke rashly, Coke had acted responsibly and in a way supported by custom and precedent. But in 1608 Coke seconded Chief Justice Thomas Fleming of the King's Bench in objecting to the entire procedure of advisory opinions. The issue touched whether or not the four English counties bordering Wales were within the jurisdiction of the Council of the Marches of Wales. At a Privy Council meeting at which eleven of the twelve judges were present, Flem­ing spoke for them all in refusing to deliver their opinions, on the ground that the judges were to deliver opinions only “as the causes and the cases fell out before them judicially between partie and partie.”¹⁷ At that point, James himself, with the Prince of Wales in tow, entered the chamber and launched into a warm disquisition on the power of the King in judicature. He ended by putting the question himself. In the ensuing row, growing from the continued obstinacy of the judges, Coke argued that whether the four counties were intended within the Statute of Wales was a question of fact that should be addressed to a jury, not a question of law. James replied, correctly, that it was a question of law and the judges should decide it (so far was his “artificial reason” sound). The conference broke up with an an­gry King, tearful judges, and no opinion rendered.

Beyond bad law, Coke's and Fleming's proposition that advisory opin­ions were wrong was simply untenable. Coke as Attorney-General and Fleming when Solicitor-General had both drafted briefs to put such ques­tions to the judges for advisory opinions. The jurisdiction of the Council in the Marches of Wales was not the last question that the crown sought to settle with an advisory opinion. In 1615, Coke, who had replaced the defunct Fleming as Chief Justice of the King's Bench, objected to advisory opinions in the case of the Reverend Edmund Peacham, a West Country puritan facing trial for treason. Here the judges were being polled individu­ally as to whether they believed the misconduct of the defendant amount­ed to treason. Coke denounced this as without precedent. This argument would not wash, though it was a refined one addressing a genuine threat to judicial integrity, for polled separately even the most resolute judge might accede to what the crown demanded. As early as his first year on the bench, Coke and the then Chief Justice of the King's Bench had given opinions on impositions, without consultation with the other judges. In 1611 Coke had refused to give his personal opinion on the validity of proclamations as legal instruments without consulting the other judges; only when all the judges had been brought together were opinions rendered by Coke and his brethren. Coke would not win the next round. In Peacham' Case (1615)

This content downloaded from the other judges deserted Coke. His obstinacy was added to the long list of demerits that brought about his final fall in ι6ι6.¹8

Coke's removal from Common Pleas to King's Bench in 1613 consti­tuted a fall in all but name. A judge's profits from litigation in King's Bench were considerably less than in Common Pleas, and Coke took a major fi­nancial loss. The translation to King's Bench was also perceived popularly as a rebuke. Coke wept. Bacon, who had suggested the ploy, was gleeful. In fact, Bacon and the King had made a mistake, for Coke was capable of greater mischief on a grander stage in King's Bench, where the criminal cases touched the Crown directly. To soften the blow, Coke was made a Privy Councillor; this also increased his potential for being troublesome.

If the King thought the boot would be admonitory, he was soon disabused. Peacham' Case had been preceded by a confrontation in Star Chamber that saw Coke come close to inflicting a “sore blow”—as the King put it—on that court.¹⁹ Peacham' Case was followed the next year by a cause celebre between King's Bench and Chancery, Coke and Ellesmere, over Chancery's entertainment of actions that sought to undo judgments entered in King's Bench. Coke fetched from his bag of historical relics the ancient action of praemunire, triable in King's Bench, to threaten Chan­cery. Praemunire had lain unused since Henry VIII had menaced the entire clergy of England with it to pry them away from Rome at the beginning of the Reformation. Coke's threat spurred the King to an extraordinary sit­ting in Star Chamber in 1616. The king lectured the judiciary on their duty and cataloged the attacks by King's Bench on other courts, reproving Coke obliquely, and settled jurisdiction by a Solomonic threat to cut at least one chief justice in two.²⁰

The final stroke was precipitated by the famous Case of Commendams (1616), touching the King's right to permit a clergyman to hold more than one ecclesiastical charge. Coke alone among the twelve judges of the com­mon-law courts refused categorically to promise obedience to the King's will in such matters in the future. As eleven judges knelt in obeisance to the King, Coke stood upright. To color the King's determination to break Coke, his Reports was searched by the King's counsel-learned for points derogatory of royal prerogative, and upon Coke's spirited defense of the few items with which they taxed him, he was sacked as Chief Justice on November 10, 1616. He was merely the first judicial martyr of Stuart Eng­land. Charles I would, with varying severity, punish a Chief Baron, a Chief Justice of the King's Bench, and a Chief Justice of Common Pleas on one or another pretext, for one or another reason. In 1640, an outraged op-

This content downloaded from position in Parliament would exact their revenge on the King's judges by impeaching those who had supported Ship Money on appeal in 1638.

With Coke's fall, his work as a judge was over. His career, however, was not at all finished. Because he was considered a financial genius by no less a man than his foe Bacon, he was readmitted to the Privy Council within a year of his fall. Addressing fiscal issues gave Coke a renewed outlet for his energies, one that very nearly restored him fully to favor. Coke's contribu­tion was characteristic of him, and quite in keeping with his wonted judicial activism. We cannot be sure that he suggested the brilliant move of pros­ecuting wholesale wealthy miscreants in order to raise revenue from their fines or by allowing them to compound for their fines. We do know that as a Privy Councillor sitting in Star Chamber and giving early voice in judg­ment, by virtue of his lowly precedence, he played a critical role in setting the fines that would ultimately be imposed. These were enormous: against the dowager Countess of Shrewsbury for aiding and abetting misconduct by Arabella Stuart, £20,000 (1618); against the Earl and Countess of Suf­folk for the earl's peculation as Lord Treasurer, £30,000 (1619); against Sec­retary of State Sir Thomas Lake and certain of his relatives for libel, £16,666 (1619); against thirteen Low Country merchants for exporting gold and silver, a total of £136,333 (1619). Altogether these great sums amounted to exactly one-quarter of the total sum of Star Chamber fines estreated be­tween 1596 and the court's abolition in 1641. While not even the greatest part of these fines were collected, the fact that they had been imposed was effectively used to persuade others to make fiscal peace with the Exchequer. Coke had the considerable satisfaction of settling some old personal and political scores in these cases: Suffolk and Lake had been among his chief enemies in the Council. Their fall was brought about by the rise of the King's new favorite, George Villiers, Duke of Buckingham. Coke's fortunes rose with the new favorite, and he assured himself of Buckingham's favor by forcibly abducting his youngest daughter from Lady Hatton's house and marrying the girl to Buckingham's older brother.

Financial shifts did not avail to provide adequate revenue, and in 1621 James was compelled to summon Parliament for the first time in seven years, to provide funds for the conduct of a costly and contradictory for­eign policy. Sir Edward Coke, a loyal Privy Councillor, was returned as MP for a borough in the King's control. Whatever hopes James had that Coke would be in the vanguard of those directing and defending royal policy in the Commons were disappointed. Coke found again a forum worthy of his talents, his learning, and his activism, but the House of Commons was one

This content downloaded from in which these attributes would be more appreciated by those who doubted or opposed royal policy than by the king. This is not to depict Coke as a weathervane or a mercenary. On the contrary, what Coke saw at stake in the Parliament of 1621 was the preservation of the integrity of the law against the encroachments of royal ministers who were bent upon policies that were wrong, even pernicious, and who were prepared to subvert the law if necessary to effect those policies. The grievances of the King's subjects were to be redressed in a legal way, under protection of the law, in a preservation of the subjects' liberties, by the “High Court of Parliament.”

The High Court of Parliament was not quite entirely the confection of Coke, but it relied upon the torturous and tortured history propounded by that oracle of the law for its substantiation as anything more than a notional fiction. Coke's developed brief can be easily consulted as, appropriately, Chapter One, “Of the High and Most Honourable Court of Parliament,” in his Fourth Institutes, on the judicial structure of England. Coke upon Lit­tleton, sect. 164, contains Coke's long disquisition on “this high court of parliament” with its “so transcendent” jurisdiction, tracing its history back to Anglo-Saxon times. No matter that Coke confused matters in finding a history as early as the ninth century for an institution which began in the mid-thirteenth. No matter that the strictly judicial function of parliament had enjoyed something less than a consistent and even development, and was greater at its origins than since, that it had lapsed and been revived to lapse again and be revived again, as a modest instrument of appeal: the faint fire could be stoked up to white-hot heat, and in the Parliament of 1621 Coke blew hard on the embers. He was rewarded by the emergence of an institution which having revived impeachment, turned it on a hapless and obscure Catholic lawyer in Wales, crushed monopolists, broke the Attor­ney-General, and finally dragged down Lord Chancellor Bacon. In the next Parliament, 1624, impeachment ousted Lord Treasurer Middlesex; later in the decade, in the early Parliaments of Charles I, only dissolution saved the King's great favorite and chief minister, the Duke of Buckingham, from de­struction. None stood higher in that “High Court” than Sir Edward Coke. None was busier in patiently explaining the law, passionately urging action or restraining rashness, managing, cajoling, arguing, discoursing, debat­ing.

For his pains in 1621, Coke with several other prominent leaders of the opposition was committed to the Tower for some months. In 1624, he en­joyed the rare favor of Prince Charles and Buckingham as they countered James's pacifism and took England to war with Spain, with Parliament

This content downloaded from cheering them on and, so that they might conduct the war, voting a mod­est supply for the first time in fifteen years. In the Parliaments of 1621 and 1624, it may fairly be said that Coke was the most influential man in the Commons. In 1625, the first Parliament of Charles I, although Coke had to share that honor with two others, his influence as the jurisperitus of that High Court was still dominant. In 1626 Coke was prevented from sitting in Parliament by being made sheriff, a fate that befell other opposition stars. He came back into his own with the first session of the Parliament of 1628. The Petition of Right, a unique instrument cast in the form of a reconfirma­tion of Magna Carta and passed by the Parliament to safeguard the subject's liberties and to redress grievances, a document to which Charles gave his reluctant assent, above all the efforts of others, was Coke's own creation.²¹

Coke, along with other prominent opposition leaders, withdrew from center stage in the Commons in the second session of the Parliament of 1628, leaving the initiative with hotter, more radical, men. One suspects he had a singular motive for his silence. Parliament might be a High Court, but it was also a political organ responding to other imperatives than the cool judgment of the artificial reason of the law. Parliament had begun to manifest a taste for power that seemed to beg the limitations of law as Coke understood the law and the role its judges played.

This was Coke's last Parliament. There would not be another for eleven years. On September 3, 1634, Coke died, in his eighty-third year. His death was noticed in high places. As the old judge lay dying at Stoke Poges, Sec­retary Windebank, in execution of the King and Council's warrant, quietly sent men to search through Coke's mansion and his chambers at the Inner Temple, carrying off his papers. Nothing treasonable or seditious, nothing that had it reached the public would have shaken the kingdom to its foun­dations, was discovered. Probably no corpse in England's history was ever so posthumously terrifying as that of Sir Edward Coke. The king had paid him a high honor.

Coke was secure in his reputation among his contemporaries, in the fears of his King and in the love of his fellow MPs, in the admiration of lawyers for the legal learning displayed in the Reports, in the respect of clerks of courts for his helpful and practical little Book of Entries and among those students for whom he undertook his First Institutes to bring them all of Littleton's lore, and masses more of his own. Perhaps most significantly, Coke was famed among the widest range of his countrymen for his stalwart defense of their liberties under law and the maintenance of the supremacy of the law that assured them liberty. When the revolution that Coke could

This content downloaded from not have imagined overtook the nation and destroyed or maimed all its in­stitutions, he was revered as a hero by the Levellers, who sought a new or­der with a broader franchise for a continuous Parliament. At the same time, Thomas Hobbes condemned Coke for his medieval obscurantism and the irrationality of his belief that law was custom and not the command of Leviathan. One can be exalted for the enemies he makes as much as by the friends he keeps. Coke's renown went far beyond his partisans. It touched such old adversaries as the civil lawyer, Sir Julius Caesar, whom Coke had bombarded with prohibitions at the Court of Requests, but who remem­bered Coke's kindness in admitting him to the Inner Temple. Coke's fellow Norfolkman, the parson Thomas Fuller, the uncritical admirer of any figure he deemed worthy of inclusion in his secular hagiography, managed despite himself to achieve truth to the measure of his hyperbole in his epitaph of Coke: “His works will last to be admired whilst Fame hath a trumpet left her, and any breath to blow therein.”²²

Coke is one of those rare figures of genuinely major historical impor­tance who has fared worse at the hands of his subsequent admirers than at those of his contemporary detractors. His contemporaries knew him better than we do and they certainly better knew the age in which he acted, the constraints under which he acted, and the objectives for which he acted. Coke was a complex man. He was not complicated, though too many his­toriographers have worked arduously to demonstrate that he was. Indeed, to consider Coke's treatment at the hands of historiographers—let us sepa­rate the term from biographers—is the clue to understanding the incubus that bears down Coke's subsequent reputation. It has often been remarked in the past that Coke has never found a decent biographer.²³ Virtually all bi­ography of seventeenth-century figures (the most notable exception is Oli­ver Cromwell) is nearly intractable. In Coke's case, thanks to the fact that most of his papers have disappeared or been dispersed, not least because of the king's paranoia, the task is made yet more difficult. But the problem is compounded in its difficulty by the fact that Coke has been required by historians, ancient and modern, to serve as a symbol of something begun and not yet completed. In short, he has been robbed of eternal sleep, of the mere mortality that permits blissful oblivion for lesser men. We are like Charles I, less fearful, but still apprehensive of what Coke's cadaver can do, what it still means, what it still signifies.

The Whig historians, who flourished in the eighteenth and nineteenth centuries and were enamored of the rise of Parliament, the emergence of the rule of law, the achievement of liberties of speech and association and

This content downloaded from religious observance, and the evolution (though not too fast, please) of democratic government, saw Coke as the harbinger or proto-epitome of all those developments. Therefore, Coke's beastliness to Sir Walter Raleigh, or his abducting his daughter of fourteen to marry her to a feeble-minded courtier, or the xenophobic anti-Hispanicism that he manifested in the Commons in 1621 demanded some explanation, even justification. The rec­ord had to be spun sufficiently that these episodes would not detract from Coke's good qualities or embarrass the sensibilities of his admirers. Recent historians tend, however, to fall into a similar trap in seeking to understand Coke. In the 1930's, Coke was hailed as an early exponent of “economic lib­eralism,” a precursor of Adam Smith.²⁴ In the 1970's, two admirable works appeared devoted entirely to Coke. One, by a French scholar, argued that Coke must be seen as a precursor of Locke and Montesquieu and accorded him a place in the history of anti-absolutist political theory just a step be­hind them.²⁵ What was intended as a handsome compliment is in fact the grossest flattery: Coke was a political theorist in the sense that anyone who can think straight, is involved in politics, and has had recorded what he said in the political process is a political theorist. He might rank with Locke as a significant Englishman of their century, but Locke owed virtually nothing to Coke, whose vaunting of the common law's primacy, in Locke's view, represented as great a peril to the civil government as monarchical absolut­ism. The other work, by an American scholar, credited Coke with devel­opment of “constitutional positions” which would permit English law to adapt to “new social and economic conditions.”²⁶ There is merit in the sug­gestion of the interpretation, but it presupposes an understanding of con­stitutionalism on Coke's part that could not have emerged in seventeenth century England until after one bloody revolution and another bloodless one. Not even Coke was capable of such perspicacity.

There is little evidence that Coke had a coherently thought-out consti­tutional position beyond that medieval, traditional understanding of Eng­lish polity called mixed-monarchy. Emphasizing consensual governance by the King and the estates, the latter being the clergy, the nobility, and the commonalty, represented in Parliament put a premium on compromise as the means to obtain it, and the law the regulator of relations within the mix. Not surprisingly, Coke devoted much of his attention to the last element, both when he was judge and afterwards as parliamentarian. Coke believed the law served as a surrogate for constitutionalism, and he was wont to stress the regulator as mediator when king and estates fell out. He had am­ple opportunity to urge this in the 1620's. He did not like either the word

This content downloaded from or the concept “sovereign,” since it suggested not a mixture of equals but a hierarchy of unequals. Yet in standing against the King's penchant for as­serting sovereignty he was not unaware that Parliament was drifting toward a counter-assertion suspiciously like sovereignty. Consequently he exalted the role of law, which as mediator could function only if its primacy was ac­cepted by both king and estates as binding upon them severally and jointly. He had no doctrine of separation of powers, judicial review, or other ideas that would develop beyond his own time. But Coke cast the function of the law in civil polity to a higher plane than any other of his contemporaries in the political struggles of the age, and thanks to his posthumous fame as the common law's greatest oracle he influenced a later generation of lawyers to believe that the law was an essential power in a constitution raised on the separation of powers.

Coke's saving grace as jurist and politician was an almost perfervid ig­noring of the future. He seldom alluded to it, let alone dwelt upon it, save in the most immediate future. In fact, he preferred the past, always the distant past, of the Year Books, of Magna Carta, or Edward I. In the debate on the Petition of Right in May 1628, in taking strong exception to a clause added by the Lords saving the King's “sovereign power,” Coke thundered:

I know that prerogative is part of the law, but “Sovereign Power” is no parlia­mentary word. In my opinion it weakens Magna Charta, and all the statutes; for they are absolute, without any saving of “Sovereign Power”; and should we now add it, we shall weaken the foundation of the law, and then the building must needs fall. Take we heed what we yield unto: Magna Charta is such a fel­low, that he will have no “Sovereign.”²⁷

The old man must be taken at his word: Magna Carta was a living person to him.

Coke's past-mindedness differed from that which the modern historian seeks to inculcate in his student. His was all anachronism, the past living in the present, distinct from our attempt to see the past on its own terms rather than on ours. We fail repeatedly. Coke, never having tried for the simple reason that our sublime sensitivity is the product of nineteenth cen­tury German positivism, could only succeed in his endeavor. The result was determinative of the future of whole areas of the common law. This was not because Coke planned to achieve that outcome, but because his con­temporary authority among lawyers was such as to convince them that his vision of the living past as present was the law. As the historian is struck by certain great events into which all the past appears to have flowed and out of which all the future issued—the Reformation of the sixteenth century

This content downloaded from and the French Revolution of the late eighteenth century are such—so he sees something of the same phenomenon in the history of the common law, with Coke as aperture.

Coke upon Littleton effected just such a convergence-divergence for the law of property. Coke did not only update Littleton, he made Littleton’s terse sections the foundation for all subsequent property law. There was no need to go behind Coke. Littleton was to be found there, a kind of groom to Coke. One result, and an immediate one, was an almost instantaneous stopping of lawyers’ recourse to the Year Books. There was no need to ex­tract law from the Year Books; Lord Coke had done it. Judge Littleton was there to bear witness to the completeness of Coke’s compilation, and Coke’s Latin maxims with their ring of authenticity not only lent credence to the effort but supplied the point in a short, sharp sentence of a few el­egant Latin words. Perhaps it never occurred to lawyers to question how there could have been so much Latinity in the “book-law” of medieval Eng­land written in Law-French. It didn’t matter. Even if the spuriousness was perceived, the maxims were a pithy summation of the law. Even today, in a popular handbook of maxims for lawyers, of the eleven hundred maxims given, just half are directly ascribed to Coke’s works.²⁸

Coke was quite prepared not only to make up maxims, but also to shape the doctrine to fit them. While Professor Samuel Thorne provided the rule of thumb by which we can detect when Coke was up to creating law out of whole cloth,²⁹ he also pointed out that such new departures were small and often very technical. It should also be observed that Coke probably believed that in lost cases he was not creating law but merely enunciating law already in existence, though it had been hidden or had previously wanted explicit evidence to establish it. The process was for Coke a matter of discovery, or at least recovery, not of fabrication.

What Coke did for property law in the First Institutes he undertook to do for other branches in the succeeding three which he managed to complete but understandably, because of their political sensitivity, did not publish in his lifetime. None of the latter three Institutes attained the bulk, comprehensiveness, or profundity of Coke upon Littleton. The Second Insti­tutes, on Magna Carta and the statutes, was polemically inspired, and its unevenness of treatment from one statute to another was dictated less by the importance of the statute to the law than to the contemporary politi­cal concerns of Coke’s later years. The Third Institutes, on the criminal law, suffered severely from the author’s past-mindedness and his tendency to concentrate on treason and felony to the diminution of the growing (in

This content downloaded from number and importance) misdemeanors which were adjusting criminal law to the repression of more sophisticated crime in a more complex society. The Fourth Institutes was the best ordered and the most evenly executed of the Institutes, demonstrating powers of organization and sustained argu­mentation that eluded Coke in everything else he wrote (with the notable exception of The Complete Copyholder, a posthumously published treatise on customary estates). Because the Fourth Institutes was descriptive of the courts of his day, it had a much shorter useful life than the three other Institutes. It was also the most politically controversial, since it bore down heavily and caustically on the ecclesiastical and non-common law courts.

The Reports had extraordinary contemporary impact. They appeared to contain all the requisite case-law from 1572 (when Coke entered the Inner Temple) to 1616 (when he was removed from the King's Bench). They were, in fact a monument to Coke's career and in critical points in important cases often represented what he thought the law to be than what the court had declared it was. That the case reports were often rambling and some­times so opaque as to be virtually incomprehensible mattered less than the fact that they bore the stamp of authenticity of Coke's reputation and his authoritative assertion. They were ampler than either Dyer's or Plowden's reports, though lacking in the systematic method Plowden employed in his Commentaries. They generally set out the pleadings, a necessary pedagogical device since Coke put great emphasis on a student learning sound pleading. More often than not, especially in the earlier cases, Coke was at pains to advance general propositions of law, emphasizing the substantive matter of the case and providing analysis of it. In part the Reports became the model for all subsequent reporting. They were probably the most frequently cited and most often argued-over reports the common law has known. Their “authority” was not seriously questioned until well into the nineteenth cen­tury, and even then the courts found it both difficult and inconvenient to deny their credibility. While uncritical admiration for them disappeared, they remained part of every learned lawyer's armory of argument until this century.

If Coke remained the legal oracle in his own country by virtue of the Re­ports and the Institutes, especially Coke upon Littleton, he became the found­ing father of the common law in England's American colonies. On Novem­ber 11, 1647, the General Court of the Massachusetts Bay Colony ordered that “to the end we may have the better light for making & proceedings about lawes, that there shal be... procured for the use of the Courte from time to time” two copies each of Coke's First and Second Institutes, Coke's

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Reports, and Coke's Book of Entries (as well as Michael Dalton's The Countrey Justice and John Rastell's Les Termes de la Ley).³⁰ For over a century thereaf­ter, generations of fledgling lawyers in all the colonies wrestled with Coke upon Littleton to learn the land law, resonated to Coke's encomium of Mag­na Carta in the Second Institutes, and sacked the Reports for all the case-law they could find. Thomas Jefferson, studying the law under George Wythe in Virginia in the 1760's, took more readily to the Institutes than might have been expected of one of his fastidious reading habits. Coke's history was a curative against David Hume's History of England and its Tory revision­ism of the Whig Triumph, and we can guess that Jefferson's detestation of Hume commended Coke to him all the more. John Adams found it dif­ficult to conduct a case in Boston without some reference to Coke. In 1774 when Adams, under the pseudonym “Novanglus” asserted that Parliament had no authority over the colonies and that each was a separate realm un­der the King with its own independent legislature, he started from Coke's Institutes. His fellow Bostonian, James Otis, in arguing against writs of as­sistance, raised his whole case on Coke's perverse assertion in Bonham's Case that the courts would control acts of Parliament, even to the extent of void­ing them.³¹ Yet it fell to a non-lawyer, a single-minded foe of British rule over the colonies, a Harvard-trained rabble-rouser, Sam Adams, to recruit the ghostly oracle to the Patriot cause: “whether Lord Coke has expressed it or not... an act of parliament made against Magna Charta in violation of its essential parts, is void.”³²

Of such boundless assertions and fungible authorities are revolutions made. Do not examine too closely the extent to which Sir Edward Coke fell in behind Citizen Sam. Scores of others of our Founding Fathers had no doubt which side Lord Coke was on, and none questioned the magnitude of the aid he gave them.

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