Edward Coke: Common Law Protection for Liberty
Coke Contributed to America's Independent Judiciary and Judicial Review
NOVEMBER 01, 1997 by JIM POWELL
Why were civil liberties first secured in England?
One important reason was the development of common law principles and precedents independent of a ruler. Edward Coke (pronounced “Cook”) was more responsible for this than anybody else. 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.” 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.”
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 that precedents went back farther and proved more than they actually did, he was almost always right about fundamental principles.
His Reports and Institutes did much to give the English a coherent constitution. Even his rival Francis 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 did much for religious toleration. As Chief Justice of common law courts, he worked to keep many cases out of ecclesiastical courts that 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. At Coke’s death, his personal library included major Puritan writings of the previous half century.
Coke was more than a jurist; he 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 spearheaded attacks against the ministers of James I and Charles I. Parliament articulated constitutional principles and took initiative in formulating policy. Coke certainly wasn’t the only important figure in these parliaments, but he framed the issues, served on more parliamentary committees, delivered more committee reports and speeches than anybody else. He did much to secure the principle that ministers must be accountable for their actions—a critic remarked that Coke “would die if he could not help ruin a great man every seven years.” His ideas helped inspire the revolution which, two decades later, toppled Charles I.
“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. Coke’s principal legacy: the independence of the judiciary and the principle that judges may overturn statutes which are contrary to the Constitution.
An Imposing, Difficult Man
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. “Pedant, bigot, and brute as he was,” historian Thomas Babington Macaulay wrote in his essay on Bacon, “he had qualities which bore a strong, though a very disagreeable resemblance to some of the highest virtues which a public man can possess. . . . 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, it is but fair to admit that 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.
After attending the Norwich Free Grammar School for seven years, Coke entered Trinity College, Cambridge, and was four years there. 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 that would be needed for professional practice. Common law was the law applying to everyone. It included Saxon legal customs, standard commercial practices for resolving disputes, parliamentary statutes, judicial decisions and, yes, some royal decrees. In addition, there were treatises going back several hundred years, written by respected judges like Henry Bracton, Anthony Fitzherbert, John Fortesque, John Glanville, and Thomas Littleton. 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 began a lifelong practice of arising at 3:00 A.M. so that he could gain several hours for learning more about law before the day began.
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 \P30,000. He developed ties with Lord Burghley, a councilor to Queen Elizabeth. After a succession of minor positions, he was appointed Solicitor General by Queen Elizabeth in 1592. She named him speaker of the House of Commons the following year, and in 1594 chose him over Francis Bacon to be attorney general.
Bacon and Coke 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’s father died before he could buy his son an estate, so he had to work for a living. He learned law at Gray’s Inn, then pulled political strings and got elected to Parliament in 1584. He urged religious toleration for loyal citizens, but otherwise he was a thoroughgoing government man. As a consequence, he acquired estates and secretaries, including 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 and declared that governments shouldn’t be judged by the moral standards that apply to ordinary people. Bacon made clear his distrust of Parliament and his belief in political absolutism. He approved of war because it promoted a strong state.
Coke, meanwhile, prospered as a vigorous defender of royal prerogative and enforced laws against religious dissenters. His wife died, and he soon remarried Lady Elizabeth Hatton, granddaughter of Lord Burghley and niece of Robert Cecil, the most influential minister of Queen Elizabeth and, for a while, of her successor, James I. This second marriage was rocky, but it brought him even more property.
Coke, unlike Bacon, was critical of patents of monopoly which the government had issued since 1552 to generate revenue. The patents were issued for mechanical inventions, chemical processes, and other things. There were many complaints because patents of monopoly benefited a few individuals at the expense of everybody else. Coke handled some of the most important cases against monopolists. As he explained, “it appeareth that a man’s trade is accounted his life, because it maintaineth his life; and therefore the Monopolist that taketh a man’s trade, taketh away his life.”
England had the lowest taxes in Europe, but toward the end of her reign Elizabeth needed more revenue. After the Spanish Armada was smashed in 1588, Spain built more ships for another possible attack on England, requiring new English defenses. Elizabeth was at war with France, too. Bacon recognized the danger of taxation. In 1593, he remarked: “wee breed discontentment in the people and in a cause of Jopardie her Majesties saftie must consist more in the love of her people then in their welthe.”
The Ascension of James I
Elizabeth died on March 24, 1603, and was succeeded by the 37-year-old James VI of Scotland, who became James I of “Great Britain”—he revived the name from early medieval times. Elizabeth, he soon discovered, left a pile of debts. “My lord treasurer,” wrote one official in September 1603, “is much disquieted how to find money to supply the King’s necessities.” This official found “all means shut up of yielding any relief.” London bankers twice refused to loan the government any more money, claiming they had suffered big losses because of the plague, but Venetian ambassador Nicolo Molin reported: “ill-will is also suspected as the cause.”
A monarch was supposed to pay the cost of maintaining his palace and retainers with hereditary income, while Parliament financed national defense and wars. But James asked Parliament—taxpayers—to help cover his extravagant royal household expenses.
The king’s personal habits made his political problems worse. “James was a loutish savage,” wrote historian Paul Johnson. “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 would sit there, laughing. . . . Everything James did, and everything he omitted to do, was certain to evoke protest.”
Attorney General Coke made his reputation as a tough prosecutor in three sensational trials. First came the Earl of Essex, an adventurer who had blundered in Ireland, disobeyed Elizabeth’s orders, and burst into her private quarters (1601); Walter Raleigh, who allegedly plotted against James (1603); and Guy Fawkes and his fellow Catholic conspirators who dug a tunnel for 35 barrels of gunpowder under Westminster Palace, which they hoped to blow up when the King and royal family gathered for the opening of Parliament (1605). Coke caused quite a stir as he repeatedly underscored key points, displayed his eloquent Latin, picturesque English, and formidable knowledge of legal precedents.
Bacon and Coke were at each other’s throats. Parliament turned down James’s request for more revenue, and he attempted an “end run” around Parliament by doubling tariffs, an idea backed by Bacon. James’s “New Impositions” meant that imports were subject to the delay and expense of being inspected twice. John Bates, an importer of Venetian currants, tried to evade the “New Impositions” and was brought before the Court of the Exchequer. It ruled that tariff policy was the king’s jurisdiction, not Parliament’s. The House of Commons named a commission to look into the matter. Coke was the point man. He insisted the king’s jurisdiction was to protect England against foreign enemies, but the “New Impositions” were for revenue, and Parliament’s approval was required.
“It is odd, indeed,” noted biographers Hastings Lyon and Herman Block, “that Bacon, the philosopher, should have failed to apprehend what Coke, the legist, apparently did see: namely, that if the enforced loans, benevolences and monopolies were permitted, the King 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.”
Chief Justice of the Court of Common Pleas
In June 1606 James appointed him Chief Justice of the Court of Common Pleas, which mostly handled private actions between citizens. This was a position where Coke would have to do the king’s bidding or be dismissed. The “New Impositions” didn’t generate enough revenue, and soon James issued a writ which forced people in England’s seaports to equip his fleet. (Elizabeth had issued such a writ but there was more political support for it because she faced the Spanish Armada.) Coke authored the “Protestations from the House of Commons,” which declared, in part, that “from the time of Magna Carta the liberties, franchises, privileges and jurisdiction of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England.” This outraged James.
Coke clashed with the king on fundamental issues. “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 . . . for they exercise a manner or resemblance of divine power upon earth.” James, like Elizabeth, considered judges to be agents of the crown. They certainly weren’t supposed to render independent decisions.
English common law was a murky field, and Coke made the most of it when countering the king. 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.”
On November 13, 1608, there was an epic confrontation between James and Coke. James described judges as “shadows and ministers.” Coke replied that “the King in his own person cannot adjudge any case . . . but that this ought to be determined and adjudged in some Court of Justice, according to the law and Custom of England.”
James countered “that he thought the law was founded upon reason, and that he and others had reason as well as the Judges.” Coke: “God had endowed his Majesty with excellent science and great endowments of Nature. But his Majesty was not learned in the Laws of his Realm of England; and Causes which concern the Life, or Inheritance, or Goods, or Fortunes of his Subjects are not to be decided by natural Reason but by the artificial Reason and Judgment of Law, which requires long Study and Experience before that a man can attain to the cognizance of it.”
James was outraged, as one observer reported: “his Majestie fell into that high indignation as the like was never knowne in him, looking and speaking fiercely with bended fist, offering to strike [Coke].”
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. The prefaces were in English, texts in “law French,” and pleadings in Latin. “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.”
Bacon, whom James had named Solicitor General in 1607, considered the king legibus solutus—above the law. Lord High Chancellor Ellesmere, the highest judicial official, declared Rex est lex loquens—“the king is the law.”
Bacon advised James, in Peacham’s Case, to try influencing court decisions by presenting judges with the allegations in a case and asking their opinion before trial. Edmund Peacham was a Puritan minister who criticized a bishop’s religious intolerance, for which he was brought before the High Commission. As Bacon reported to the king, “Upon these interrogatories, Peacham was examined before torture, in torture, between torture, and after torture; nothing could be drawn from him, he still persisting in his obstinate and inexcusable denials and former answers.” Coke wouldn’t cooperate with Bacon, saying that “taking of opinion is not according to the custom of this realm.” Coke considered it unfair to present judges with allegations when neither a defendant nor defense counsel were present for cross-examination. Bacon told James that Coke’s “over-confidence, doth always subject things to a great deal of chance.” Peacham died in prison.
In Bonham’s Case, Coke ruled that the common law stood above Parliament. The case involved Dr. Thomas Bonham, jailed for practicing medicine without a certificate issued by the Royal College of Physicians. He filed suit for false imprisonment. Coke observed that according to the Royal College’s statute of incorporation, it pocketed half the fines from violators like Bonham. This, he noted, meant the Royal College was both a party and judge in every action. Citing a common law principle, Aliquis non debet esse judex in propria causa [Nobody should be judge in his own cause], Coke ruled: “in many cases the common law will control acts of Parliament and some times adjudge them to be utterly void; For 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 the most controversial decision he ever rendered.
James asserted his power by issuing proclamations that he insisted had the force of law. In September 1610, Coke presented his view of these proclamations to the Privy Council, which had the responsibility of advising the king on executive, judicial, and financial business and seeing that the king’s will was done. “All indictments,” he observed, “conclude with the words, Against the law and custom of England, Contra legem et consuetudinem Angliae; or against laws and statutes, Contra leges et statuta. But I never heard an indictment to conclude, Contra regiam proclamationem; against the king’s proclamation.” Coke went on to review the legal history of royal proclamations. Accordingly, the Privy Council resolved “That the King by his proclamation cannot create any offense which was not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. Also the law of England is divided into three Parts: Common Law, Statute Law, and Custom; but the King’s Proclamation is none of them.”
Coke issued “prohibitions” aimed at curbing the power of ecclesiastical courts, especially the High Commission, which imprisoned individuals for preaching Nonconformist doctrines. A prohibition ordered the ecclesiastical courts not to proceed with a case if there was any reason it might belong in a common law court. Coke defended his prohibitions by showing how they had long been issued by common law courts. Moreover, he explained how, during the past 60 years, the High Commission had expanded its power beyond what had been specified in any statute.
James called Parliament in 1610 because he needed money, but Members drew up a Petition of Grievances. Among the principles at stake: “there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government.”
James took offense: “We are an old and experienced king, needing no such lessons.” Coke rose to defend the Petition: “I never spake but mine own conscience. The privileges of this House is the nurse and life of all our laws, the subject’s best inheritance. If my sovereign will not allow my inheritance, I must fly to Magna Carta and entreat explanation of his Majesty. Magna Carta is called Charta libertatis quia liberos facit. . . . The Charter of Liberty because it maketh freeman. When the King says he cannot allow our liberties of right, this strikes at the root. We serve here for thousands and ten thousands.”
James fumed, “The House of Commons is a body without a head. The members give their opinions in a disorderly manner. At their meetings nothing is heard but cries, shouts, and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence. I am a stranger, and found it here when I arrived, so that I am obliged to put up with what I cannot get rid of.”
James dissolved Parliament the following year, and Coke stood alone against the king. He issued two rulings that limited the discretionary power of the High Commission. James snapped that the rulings were “of a nature extraordinary and showing more the perverseness of [Coke's] spirit than any other prohibitions.” James summoned Coke and several like-minded judges to explain themselves. Coke endured a three-day interrogation.
Chief Justice of the King’s Bench
In 1613, Bacon had an idea for taming Coke: promote him to Chief Justice of the King’s Bench, which handled criminal as well as civil actions; and promise him a seat on the 12-member Privy Council. “Coke will thereupon turn obsequious,” Bacon assured James. Coke became Chief Justice of the King’s Bench in October, but Bacon and James were in for a surprise.
Conflict developed when James granted two income properties to the Bishop of Coventry. The grant was contested by two men who claimed the property was theirs—this became known as the Case of Commendams (which meant the bishop could collect the income while having somebody else perform whatever services might be required). Coke and his fellow judges were about to conduct a hearing on the dispute when James ordered them not to proceed, because his prerogative was at issue. Coke countered that “The stay required by your Majesty was a delay of justice and therefore contrary to law and the Judges’ oath.” Bacon, who had become Attorney General and a member of the Privy Council, denounced Coke, for behaving improperly. James stepped up the pressure. The judges relented, except for Coke who, a court reporter noted, told the king “That when the case should be, he would do that should be fit for a Judge to do.” Coke was dismissed as Chief Justice.
“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, which they were destined in their generation to develop in a hundred ways, as counsel for England gone to law with her King.”
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’s most influential adviser, George Villiers (later the Duke of Buckingham). Bacon filed a complaint against Coke for riotous behavior. This was surely the low point of Coke’s career. Although he didn’t get back his judgeship, he regained his position on the Privy Council. Apparently, the king and Buckingham still hoped that showing him some favor would undermine his independent spirit. Bacon was subsequently appointed Lord High Chancellor, which made him the highest-ranking person outside the royal family.
James summoned Parliament, which met on January 13, 1621, the first time in seven years. James again needed money, and Members intended to negotiate about their grievances.
Among other things, Parliament was intent on limiting royal power by rooting out corruption. The top target was Buckingham, who had gained considerable influence with the king. After he had sent Walter Raleigh to attnd he was summoned before the House of Lords. He apologized for his brothers who had taken bribes and avoided prosecution by sheer political clout. The House of Commons turned to drafting a bill which would curb monopolies.
The House of Commons then formed a Committee for Inquiring into Abuses in the Courts of Justice. A trail of dubious payments led to Bacon’s door. Coke soon emerged as the leading inquisitor. The inquiry against Bacon led eventually to the charge of bribery.
Coke objected to James’s proposal that a special commission should investigate the charges, because it couldn’t be counted on to recommend prosecution. Accordingly, Parliament began impeachment proceedings for the first time in 160 years. It reported a growing list of bribes. Since the bribes had been delivered in the presence of his servants, Bacon didn’t mount a defense. “Condemn and censure me,” he wrote the House of Lords—thereby offending the House of Commons.
He was impeached, dismissed as Lord High Chancellor, fined £40,000, imprisoned in the Tower of London, then banished from London and the law courts. The 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 counsellor they ever had. Impeachment and responsibility of ministers remained.”
On December 18, James dissolved Parliament, and soon afterwards Coke was summoned to appear before the Privy Council. “You have forgotten the duty of a servant, the duty of a Councilor of State and the duty of a subject,” he was told. Guards escorted him to a damp, bitter-cold, urine-soaked cell in the Tower of London. Denied access to books, he wrote Latin verses with pieces of coal. He was interrogated by the President of the Privy Council who reported: “I charge you therefore with treason. I have heard you, Sir Edward, affirm that by law he is a traitor who goes about to withdraw subjects’ hearts from their King.” But after seven months of going through Coke’s personal papers and investigating his affairs, crown officials concluded they couldn’t find any evidence of wrongdoing. He was released. No charges were ever filed.
The Parliament of 1624 came on the heels of a four-year business depression, and there were a lot of complaints about monopolies. Coke led the attack against monopolies over wool, brick-making, glass-making, salmon fishing, and the transcribing of wills.
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 \P200,000. His 24-year-old son became King Charles I, and right away he began spending money at a reckless pace. Then, as Buckingham had arranged, he married the 15-year-old French Catholic princess, Henriette Marie, who came with an 800,000-crown dowry; the idea here was that if there wasn’t going to be a marriage to promote peace with Spain, then there should be a marriage to help secure an ally against Spain if needed.
The wedding took place at Notre Dame de Paris, and Charles was represented by a stand-in, the Duc de Chevreuse, because of the risk of Charles falling in the hands of a foreign power. Buckingham himself escorted the new queen back to England, biographer John Bowle reported, with “fifteen lords, twenty-four ‘knights of great worth’, and far too many pages.” Henriette Marie was accompanied by her servants—a bishop and 28 priests.
Thirty Years War
Charles summoned Parliament in May 1625 and faced mounting skepticism. For openers, Members were distracted because several thousand people a week were dying from plague in London. Buckingham had approved military adventures against France and Spain which were fiascos, convincing many Members of Parliament that the previous subsidy they approved was a mistake. Buckingham proposed more military adventures, one to attack Spain and another to save the Protestant Elector of Palatine—which meant becoming embroiled in the conflict that would become known as the Thirty Years War. Parliament voted for two small subsidies and authorized Charles to spend customs revenue only for a year. Charles was in trouble because the Lord Treasurer reported the government didn’t have any money or credit left. Assuming Parliament would give him what he needed, Charles had drawn from his own resources to pay \P136,000 for a subsidy to Denmark, wages for British soldiers serving in the Low Countries, and food and ammunition for the British navy. “By the grace of God,” Charles remarked, “I will carry on the war if I risk my crown.” He dissolved Parliament.
Short of money, Charles resorted to conscription. The government rounded up as many able-bodied men as they could find around the port towns. Reportedly many men paid bribes to avoid being conscripted. The government didn’t spend money on army barracks, so it forced thousands of private individuals to feed and house the recruits. This, of course, provoked widespread resentment, and the result was martial law. The first adventure, against Spain, was a fiasco which Charles and Buckingham tried to cover up, and by the end of the year Charles pawned some of his jewelry and silverware for more money.
Charles summoned Parliament again. In an effort to undermine resistance, he appointed his half-dozen most troublesome opponents, including Coke, as sheriffs, which kept them out of parliamentary proceedings for at least a year. But this enabled a formidable orator, John Eliot, to step forward as a leader. Though he had befriended Buckingham as a young man, he witnessed the return of wretched British soldiers from one of Buckingham’s disastrous expeditions against Spain, and he resolved to bring down the Duke. Eliot declared that Parliament wasn’t a tool of the king and that Members were morally obligated to follow their conscience. He urged that Buckingham be impeached.
Asked for further subsidy, Members of the House of Commons began impeachment proceedings against Buckingham. Charles responded by ordering Eliot and another outspoken Member, Dudley Diges, imprisoned in the Tower of London. But the Commons charged Buckingham anyway, for failing to suppress piracy in the English Channel, for choosing incompetent leaders of the Spanish expedition, for taking bribes and for scheming with Catholics. On June 12, 1627, Charles dissolved his second Parliament, saving Buckingham’s skin.
“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. Rough as the times had been in the earlier centuries, ‘bills and bows’ were a final resource which few kings had cared to challenge. But now on the Parliamentary side force as yet was lacking.”
Needing money, Charles resorted to high-handed revenue-raising measures, and on March 27, 1628, Charles summoned Parliament for the third time.
Parliament was aboil over squandered money, conscription, billeting of soldiers in private homes, forced loans. Citing common law precedents, Coke maintained that “the King cannot order any man arrested, because there is no remedy against him.” Coke insisted people could be legitimately imprisoned only upon the order of a judge. On March 21, 1628, 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 cited the alleged crimes, and the writ of habeas corpus must not be denied.
The House of Commons approved the subsidies that Charles asked for, provided he would agree to respect the liberties of Englishmen. Charles resisted, and the House of Lords was reluctant to break with him. The Lords eventually approved a declaration that the Magna Carta remained in force and that the king must not infringe on “any of his loyal people in the property of their goods or liberty of their person.” But then the Lords hedged, suggesting that “as touching his majesty’s royal prerogative intrinsical to his sovereignty and entrusted to him from God . . . in the case, for the security of his Majesty’s Royal person, the common safety of his people, or the peaceable government of his kingdom, his Majesty shall find just cause, for reason of State, to imprison or restrain any man’s persons, his Majesty would graciously declare that within a convenient time, he shall and will express the cause of the commitment or restraint, either general or special.”
Coke thundered: “Is the confirmation of the Great Charter a matter of grace? What are just liberties? Who were the best of his Majesty’s predecessors? We see what advantage they have that are learned in the law in penning articles above them that are not, how wise soever. What is intrinsical prerogative? It is a word, we find not much in the law. Intrinsical prerogative is not bounded by any law, or by any law qualified. Admit this intrinsical prerogative, and all our laws are out. This intrinsical prerogative it appears is entrusted to the king by God. It is jure divino [divine law]. No law can take it away. His majesty can commit when he pleases.”
When the king continued to resist, Coke proposed on May 8 that Parliament adopt a Petition of Right for the king’s agreement 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 dispatched a letter to the Lords, saying he must be able to imprison people without filing specific charges. For 18 days, the Lords tried to figure out how they could draft something agreeable both to Charles and the Commons. Then Coke rose in the Commons and spoke: “Let us palliate no longer. If we do, God will not prosper us. I think the Duke of Buckingham is the cause of all our miseries, and till the King be informed thereof, we shall never go on with honor or sit with honor here. That man is the grievance of grievances. Let us set down the cause of all our disasters and they will reflect on him.”
On June 8, Charles met both Houses of Parliament at 4:00 in the afternoon. Then he signified the words of approval which gave a bill the force of law: “Soit droict fait comme est desire.”
“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’s Greatest Work
Coke retired to Stoke House in Stoke Poges, Buckinghamshire, just west of London, where he completed his life work.
Scholars traditionally wrote commentaries on established authorities, and that’s how Coke proceeded with his greatest work. He prepared commentaries on Thomas Littleton’s Treatise on Tenures, a fifteenth-century text about land law. “The ornament of the common law,” Coke called it, “the most perfect and absolute work that ever was written in any human science, and as free from error as any book that I have known to be written of any human learning.” Coke covered about 500 years of English property law.
His health declined in 1634. On June 9, he asked for a pen and paper to affirm his religious faith. While he lay dying, the government—“by order of his Majesty’s Privy Council”—issued a warrant to search his house for documents which might threaten the monarchy. Police took manuscripts for his Institutes and for 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 trashed Coke’s principles. He did everything he pledged not to do in the Petition of Right, and he refused to call another Parliament for 11 years. But the principles had taken root. When the Long 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. In this commentary on Magna Carta and almost 40 other charters and statutes, Coke distilled the views he had promoted throughout his public life. He believed individual liberty was best protected by “due process of the common law.” He asserted that “Generally all monopolies are against this great charter, because they are against the liberty and freedome of the subject, and against the law of the land.” He affirmed that “The interpretation of all statutes concerning the clergy, being parcell of the lawes of the realme, do belong to the judges of the common law.”
The Third and Fourth Parts of the Institutes were published in 1644. The Third Part covered a variety of crimes. Coke defined a crime, explained the penalties, and covered the legal history of it.
The Fourth Part developed his familiar themes about the role of Parliament.
Coke urged his successors in the common law: “And you, honorable and revered judges and justices, that do or shall sit in the high tribunals or seats of justice, fear not to do right to all, and to deliver your opinions justly according to the laws; for fear is nothing but a betraying of the succors which reason should afford; and if you shall sincerely execute justice, be assured of three things: first, though some will malign you, yet God will give you his blessing; secondly, that though thereby you may offend great men and favorites, yet you shall have the favourable kindness of the Almighty, and be his favorite; and lastly, that in so doing, against all scandalous complaints and pragmatic devices against you God will defend you as with a shield.”
Coke inspired freedom fighters in England and the American colonies. When Roger Williams established Rhode Island, he reflected in 1652: “how many thousand times since I had the honorable and precious remembrance of his person, and the life, the writings, the speeches, and the example of that glorious light. And I may truly say, that besides my natural inclination to study and activity, his example, instruction, and encouragement have spurred me on to a more than ordinary, industrious, and patient course in my whole course hitherto.”
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—a situation which continues to this day.
The American Founders learned constitutional principles from Coke. 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. Joseph Story, who became a Jeffersonian Supreme Court Justice, wrote: “When I had completed the reading of the most formidable work, I felt that I breathed a purer air and that I had acquired a new power.”
American constitutional 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.”
Especially since the Constitution was ratified, an independent judiciary and judicial review have become bedrock principles of American law. 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.