Edward Coke

English lawyer, judge, politician, and scholar

• Born: February 1, 1552
• Birthplace: Mileham Manor, Norfolk, England
• Died: September 3, 1634
• Place of death: Stoke Poges, Buckinghamshire, England

As a barrister, member of the House of Commons, attorney general, and chief justice, Coke was a leading defender of the rights of individuals and of Parliament. He was instrumental in creating the Petition of Right in England and in developing a theory of judicial review that would shape the United States Constitution.

Early Life

Sir Edward Coke was the son of Robert Coke, a prosperous barrister and member of the English gentry who owned several estates. His mother, née Winifred Knightley, was herself the daughter of a Norwich attorney and descended from a family as respectable and prosperous as her husband’s. Edward had seven sisters but no brothers. He received his early education at home. When he was nine, the same year that his father unexpectedly died, he was sent to the Free Grammar School in Norwich, where his classmates were the sons of other local prosperous families. Coke studied Latin and Greek and read the classic works in those languages. What written English language and history he knew, he had learned on his own. Norwich had been a free city since the fourteenth century with its own constitution and a history of competitive elections for mayor and sheriff. Coke absorbed something of the free, individualistic spirit of the city, and it remained his favorite place in England.

In 1563, Coke’s mother remarried, but little changed in his life until the fall of 1567, when, at age fifteen, he entered Trinity College, Cambridge University. There was turmoil during his three and one-half years there between Puritan reformers and those committed to the Church of England. In spite of the religious distractions and the medieval curriculum, however, Coke learned some things of use to his later career. He became adept at debate, did well in the study of logic, and improved his knowledge of Latin. His mother had died in 1569, and Coke was head of his family when he left Trinity.

Coke decided to follow his father in law and on January 21, 1571, he joined Clifford’s Inn, where he received preliminary legal training. After the customary one year, he moved to the Inner Temple, one of the Inns of Court, where he endured a rigid, traditional apprenticeship. He remained seven years, mastering the difficult and extensive vocabulary of the law. The major text was Judge Thomas Littleton’s Treatise on Tenures (1481), which focused on land law. Yet, like the whole curriculum during his years at Inner Temple, the text was obtuse, jumbled, and incoherent, and only the stubborn and determined learned to make sense of it.

Criminal law, on the other hand, was much easier, and while English sentences for criminal offenses were harsh by comparison with the more advanced continental European nations, English trials were the fairest. This was the result of English laws and procedures that protected the rights of the accused to make habeas corpus petitions, to a trial by jury, and to speak in their own defense, hear their accusers, and challenge jurors. Nowhere else in Europe were there equivalents to these English concepts, and Coke became justly proud of them and of the concept of the law of the land.

Life’s Work

On April 20, 1578, Coke was called to the bar, which meant that he could return to his family home and begin practicing law. In these early years, he traveled extensively in Norfolk and the surrounding shires, was elected to a number of local minor public offices, and attended court sessions at Westminster. On April 30, 1582, at the age of thirty, Coke married the seventeen-year-old Bridget Paston, who came from a wealthy and distinguished Norfolk family. They moved shortly after their marriage to Huntington Manor in Suffolk, one of Bridget’s mother’s estates. Coke and his wife had ten children. Coke’s home was a happy place, and he prospered and began acquiring land and property, a habit he kept the rest of his life.

During these years, Coke acquired another more important habit. From the beginning of his career as a lawyer and for the next forty years, Coke kept extensive notes of all the law cases he participated in or witnessed. He published these notes in eleven parts as Reports (1600-1615), which contained almost six hundred cases. Two additional volumes were published posthumously. The Reports cover all types of cases and contain not only a wealth of legal information but social history as well. Since judicial decisions of this period were recorded only haphazardly, Coke’s Reports had no peer, and they were the basis of his lectures on the law given at the Inner Temple.

Coke soon gained recognition as an energetic and knowledgeable lawyer, although outspoken and rarely subtle. In Parliament, these traits gained for him admiration and respect from many, including Queen Elizabeth’s chief minister, William Cecil, lord treasurer Burghley. As Cecil’s protégé, Coke began his career in public office as solicitor general and was later appointed by the queen as speaker of the House of Commons in 1593. The speaker’s job was difficult, because he had to please both the queen and the members of the Commons. Coke cut an imposing figure before that assembly. He was tall, large-boned, and spare, with a handsome oval face, dark hair, and a high forehead. His eyes were large, dark, and penetrating. Coke always dressed fashionably and carried himself with style. He performed his duties with sufficient merit that the queen appointed him to the lucrative post of attorney general on April 10, 1595. The vacancy occurred while he was speaker, and Coke spent considerable effort campaigning for it against the opposition of Sir Walter Ralegh, who promoted Francis Bacon .

During his twelve years as attorney general, Coke participated in a number of famous treason trials, including those of Dr. Roderigo Lopez; Robert Devereux, second earl of Essex; Essex’s numerous associates; Sir Walter Ralegh; and those involved in the Gunpowder Plot . Although he claimed to be proud of England’s enlightened criminal laws and procedures, Coke’s loyalty as attorney general was to the Crown, and he was willing to violate the rules to gain convictions.

During Coke’s tenure as attorney general, Bridget, his wife of fifteen years, died, on June 26, 1598, six months after delivering her eleventh child and seventh son. By the time of her death, only eight of her children still lived. Bridget had been a quiet, loving, dutiful wife. Lady Elizabeth Hatton, the wealthy widow and granddaughter of William Cecil, whom Coke married on November 7, 1598, was dramatically different. The marriage was a disaster, and Coke never again knew domestic peace. Lady Hatton, twenty years old at the time of her marriage to a man more than twice her age, was clever, vivacious, and stylish, loved parties, and was notorious for her willful temperament.

Queen Elizabeth I died March 24, 1603, and was succeeded by James I (King James VI of Scotland). Coke’s world began to change dramatically. During the first months of his reign, James I granted titles and knighted men on a scale not seen before in England. Among the new knights was Coke, now Sir Edward. When the position of chief justice of the Court of Common Pleas became vacant, Coke was the obvious choice and took the oath of office in the early summer of 1606. As attorney general, Coke had always served the interest of the Crown and guarded the royal prerogative. As chief justice of the Court of Common Pleas, he served the law and felt compelled to use it to set limits to the royal prerogative. The change in attitude came mainly because by the time he was appointed chief justice, Coke had concluded that James I meant to govern England from a position above the law, and Coke was determined to prevent that, using the only means at hand, the common law of England.

English common law grew out of ancient custom and usage and was gradually systematized during the medieval period into a body of legal rules and precedents by the decisions of judges and by Parliament in its role as the High Court of Parliament. In time, three superior courts of the common law were established at Westminster, the Court of Common Pleas for suits between private individuals, the King’s Bench for cases involving public issues such as murder, and the Exchequer for tax cases. Cases involving religious issues were heard by the High Commission and those involving the Crown’s prerogative, by the Court of Chancery. Both High Commission and Chancery were by their nature willing to do the king’s bidding and were known as the prerogative courts.

James I, who wished to expand his authority and govern England as an absolute monarch, sought a much broader interpretation of his prerogative from all the courts. Coke thought James I would upset the balance of English government, and as chief justice of Common Pleas, he acted to thwart the king’s ambitions. He issued numerous writs of prohibition to remove cases from the prerogative courts on the ground that they lacked jurisdiction. The prerogative courts were furious and claimed the king had the right to intervene personally in questions of jurisdiction and even decide cases himself if he chose. When Coke denied such royal authority, James I became enraged: Coke was forced to kneel to the king in November of 1608 and ask forgiveness to avoid being sent to prison in the Tower of London. Coke did not, however, stop issuing writs of prohibition to remove more cases from the prerogative courts. There were numerous meetings to dissuade Coke, but he would not change his position.

Coke got away with his defiance, because he had a reputation as learned, fair, and incorruptible. Further, in several famous cases Coke’s decisions were clearly popular. In one case that he removed from the Court of High Commission, he acquitted a man of libel charges, because the accused was forced to testify under oath on the meaning of words and symbols he had used in a letter concerning a bishop who had interpreted the letter as derogatory. Coke claimed the case violated the common law rule that the law cannot hold people accountable for their private thoughts, only for their public speech. James I was opposed to Puritans and Catholics alike and used the High Commission to harass and suppress religious dissent.

Dr. Thomas Bonham’s case was Coke’s most celebrated decision. The case arose out of a law of Parliament giving the Royal College of Physicians the right to regulate all London physicians and punish infractions with fines and imprisonment. Dr. Bonham, a Cambridge graduate who had refused to obtain the proper certificate before practicing in London, was fined and imprisoned by the Royal College. When he appealed, Coke ruled the law allowing his sentence null and void, because the Royal College received half of all fines collected and were, therefore, at once judge and party to the case. Coke was following the common law dictum that no man should be judge in his own cause.

In the Bonham decision, Coke went on to say that the common law could set limits to Parliament’s authority. Because Coke had strong connections with the leadership in Parliament and they approved of his efforts to limit the king’s ambitions, Parliament chose in this instance to ignore Coke’s statement. The idea of judicial voidance (that is, the ability of courts to void laws passed by legislative bodies) never received serious consideration in England, but across the Atlantic, in England’s colonies, the Americans would one day make great use of the principle.

Another strategy James I used to expand his prerogative was dramatically increasing the number and scope of royal proclamations in general. When Parliament sent the king a petition in 1610 complaining of the practice, Coke was summoned to a meeting of the Privy Council to give an opinion on their legality. Coke argued that the king’s proclamations were not the same as law and that James I had no authority on his own to create offenses by proclamation. The king promised to restrain his use of proclamations but did not.

The confrontations continued, and the king wished to be rid of Coke but could think of no way to overcome Coke’s popularity and prestige. Francis Bacon, James I’s brilliant and power-hungry solicitor and Coke’s most dangerous enemy, advised the king to promote Coke to chief justice of the King’s Bench when the post fell vacant in 1613. From that position, Bacon reasoned that Coke would not dare oppose the king. Coke wanted to stay on the Common Pleas bench and protested, but the king insisted, and Coke took the oath of his new office October 25, 1613.

For a time, Coke justified Bacon’s prediction that Coke’s attacks on the royal prerogative would cease once he was on the King’s Bench, but events precluded a long retreat. In a case involving Edmund Peacham, a country parson of Puritan sympathies who had written some notes for a sermon that seemed treasonous, the justices of the King’s Bench were asked for opinions on Peacham’s guilt before the trial was held. James I wanted him tried but knew that Peacham had friends in Parliament and feared the embarrassment of an acquittal. At first Coke refused, but his colleagues, being more timid, gave in and, ultimately, so did Coke. The opinion Coke gave, however, was that Peacham was innocent. While the parson’s notes were insulting to the king, they were not treasonous, because they were neither made public nor included any specific proposal. This effectively blocked the big public trial that the king had desired. James I was not willing to provide Coke with a forum for another popular dictum against him.

There were other cases in which Coke thwarted James I’s arbitrary actions, but the case that caused the most trouble and led to his dismissal from the bench was the case of Commendams of 1616. For various reasons, James I wanted the King’s Bench to halt proceedings in a particular case involving the king himself until after consulting with him in person. Coke refused, and this time he prevailed upon each of his colleagues to sign a letter to the king explaining why his order to recess was an unlawful interference.

Coke and his colleagues were summoned for a royal harangue, and all but Coke yielded to the king’s opinion. James I was by then convinced that he must remove Coke from the bench. Weak charges were brought by Bacon, and Coke was stripped of his position in November of 1616. Coke was devastated by his removal. He believed that his career was over, but he would yet perform important services to his country. In an odd turn of events, the king invited him back as a privy councillor after the marriage of Francis, his daughter and only child by Lady Hatton, to John Villiers, the brother of the duke of Buckingham, the king’s new palace favorite. The wedding took place September 29, 1617, as a state occasion.

By 1620, James I was desperate again for money and called a Parliament to meet in January of 1621. It was a vigorous session, and before it was dissolved in December of that year, it had impeached Chancellor Bacon and numerous other officials for accepting bribes and other corrupt acts. The Commons also launched a major attack on monopolies, ending many of them. While the king accepted these actions, he was not willing to allow Parliament to discuss his foreign policy and warned the Commons to this effect several times. Thwarted in their desire to petition the king directly on these matters, the Commons entered their grievances in their official journal, an event that came to be known as the Great Protestation .

Throughout this Parliament, Coke was the most prominent leader of the House of Commons, taking special care to guard what he perceived as the ancient rights and liberties of the Commons. He was largely responsible for the inclusion of a definitive claim to these rights and liberties in the grievances entered into the journal. When James I heard of the parliamentary grievances, he dismissed Coke from the Privy Council and sent him to the Tower of London under close confinement for seven months for what James I interpreted as an attack on the royal prerogative. The king then personally tore out the pages of the House of Commons journal containing the grievances and dissolved Parliament. Coke’s personal and professional papers were searched by the Privy Council in an effort to obtain evidence of treason; they found nothing, and at his trial, Coke was acquitted. Coke, now seventy years old, was released from the Tower and the public’s perception of him as the champion of liberties and the oracle of the law grew significantly.

James I had been promoting a marriage between his only son, Prince Charles, and a daughter of the Spanish king. While it might have been a good diplomatic move to make peace with Spain, it was very unpopular in England. When the negotiations failed, celebrations were held throughout much of the realm. Buckingham’s popularity rose because he was erroneously given the credit. Seizing the moment, Buckingham called for war with Spain. James I glumly called a parliament for February of 1624 to provide funds for the navy. Parliament, pleased with the shift in policy toward Spain, voted James the money he needed. Relations were so cordial that the king also accepted a bill drafted by Coke to end all monopolies forever. Some historians have called the monopoly bill Parliament’s greatest achievement during James I’s reign.

On March 27, 1625, James I died, and his son became King Charles I . The general public was initially indifferent. When Charles I kept Buckingham on as his principal adviser and Buckingham’s conduct of the war with Spain and other foreign affairs went poorly, however, the public mood turned angry. The new king was obliged by custom to call a Parliament, and when it met in April of 1625, grievances against Buckingham surfaced immediately. Coke, now seventy-two, was at the forefront of the leadership of the Commons. He spoke strongly in favor of impeaching Buckingham. To save his adviser, Charles I dissolved Parliament, even though this meant that the money customarily given a new king could not be voted. In 1625, Charles I called another Parliament, which he hoped would be more sympathetic, partly because he had forced Coke to accept the post of high sheriff of Buckinghamshire, which kept him from serving in the Commons. The ploy gained the king little, however. Once again, Parliament sought to impeach Buckingham, and the king had to dissolve it.

The king’s problem was how to raise money without Parliament, whose approval was required for any taxes to be levied. Charles I tried many schemes, but the results were insufficient, and he had no alternative by January of 1628 but to call a Parliament to meet in March. The election results were the worst that the king had yet experienced. The Parliament of 1628 was to be one of the most famous ever assembled, and Coke, with his extensive experience in previous Parliaments and the law, played a leading role.

The Commons’ leaders held private meetings early on. They decided that, in view of the extraordinary attacks on personal liberties suffered by all English citizens during the last two years, instead of attacking particular abuses and officers of the Crown as in earlier Parliaments, this time they must pass a new fundamental law protecting their liberties. Coke’s goal was to limit the royal prerogative. The result was the Petition of Right , of which Coke was a principal author, one of the great documents of English constitutionalism. It included four major provisions: first, no taxation without Parliament’s consent; second, no soldiers could be billeted in a private home without consent of the owner; third, military officers could not execute martial law in time of peace, and fourth, no one could be imprisoned without cause or denied the protection of habeas corpus.

The king had little choice but to agree to the petition, because Coke and others had established a common front with the House of Lords and, more important, stood firm by the decision not to release any money to the king unless he did agree. There were great celebrations in London and throughout much of England on June 7, 1628, when King Charles I announced formally his assent to the Petition of Right. Parliament adjourned a few days later, and the seventy-six-year-old Sir Edward Coke went home to Stoke House, having served in his last Parliament.

The project that Coke set for his remaining years was to finish his Institutes (1628-1644) and edit the last two volumes of his Reports. When completed, the Institutes comprised four volumes, one each on English land law, fundamental charters and statutes, criminal law, and court procedures and jurisdiction. Collectively, they formed the greatest treatise yet written on English law and remained, with his Reports, the most important authority on the subject for nearly three centuries, especially in England’s American colonies.

Coke packed the Institutes with every detail and example that he could find. His style made the Institutes somewhat disorganized and difficult to read, but they were rewarding to those who persevered. Coke argued that the common law limited both royal prerogative and parliamentary acts. While England never accepted his views on the supremacy of common law, his work was a major contribution to English constitutionalism and the concept of a limited executive branch. In 1628, the first volume was already published and volumes 2 and 3 were in manuscript form. The fourth had yet to be written. Coke set to work and finished the entire treatise several years before he died.

When Charles I heard that Coke had nearly finished volume two of the Institutes, he ordered that it not be printed. He rightly feared an attack on the royal prerogative. The second volume was not printed until 1642, and volumes 3 and 4 in 1644. By this time, Parliament had the power to overrule the king.

Stoke House, where Coke spent his last years, was a cheerful, large, rambling stone structure. Coke owned about sixty great manors and was considered a very wealthy man. A major portion of the income from his properties, however, went to keep his sons out of financial trouble. None of them could manage money. His daughters were more comfort to him in his old age, especially Francis. She seemed quite devoted to her father and came to live at Stoke House and look after him. He remained in good health until near the end. In 1632, at age eighty, his horse fell on him, but he walked away from it virtually unhurt. At every illness rumors flew to London that he was dead or dying. The king’s agents kept watch on him, because they feared his unpublished manuscripts. On September 3, 1634, in his eighty-second year, Coke died in his sleep while the king’s agents were in the act of confiscating his manuscripts. He was buried in a marble tomb next to his first wife, Bridget.

Significance

During his long and active professional life, Coke held a remarkable variety of political positions in all branches of government. Through this experience and his work as a legal scholar, he was well prepared for the great work of his later years as judge, parliamentarian, and legal commentator. When the Stuart kings James I and Charles I attempted to implement the divine right theory of kingship, Coke first attempted to limit the expansion of their prerogative through the common law and then developed the theory eventually known as judicial review.

After James I removed Coke from his position as judge, Coke shifted his battleground to Parliament, using the ancient authority of that body to impeach corrupt officials. When that proved insufficient to stop the expansion of royal power, he helped devise a new strategy for Parliament: withholding funds from the king until he recognized an expanded definition of the rights and privileges of Parliament and all English citizens. The result was the Petition of Right of 1628. Coke was instrumental in the evolution of Parliament from a medieval assembly into a legislature. The work of Coke and his Parliamentary colleagues laid the groundwork and determined much of Parliament’s agenda for its civil war with the king in the 1640’s.

In his last years, Coke finished his thirteen-volume Reports. This compilation of legal cases and commentary was the most comprehensive in England and contributed greatly to the stabilization of English law. He also finished his Institutes, the four-volume treatise on English law. These works were the principal texts in the education of lawyers in England and its colonies for nearly three centuries. Coke’s bias toward the common law and against arbitrary royal government remained a constant reminder to English and colonial politicians of the alternative to royal absolutism and contributed significantly to the growth of liberty on both sides of the Atlantic.

Bibliography

Allen, J. W. English Political Thought, 1603-1644. London: Methuen, 1938. Reprint. Hamden, Conn.: Archon Books, 1967. A scholarly exposition of English political thought during the early Stuart era. Allen’s work is considered a classic in its field. Coke’s views are included.

Baker, J. H. An Introduction to English Legal History. 3d ed. London: Butterworths, 1990. One of the great standard survey texts on the history of English law. Baker’s well-written study deals with a complex and often confusing subject in an organized manner. Numerous references to Coke.

Bowen, Catherine Drinker. The Lion and the Throne: The Life and Times of Sir Edward Coke, 1552-1634. 1956. Reprint. Boston: Little, Brown, 1990. A popular, rather than scholarly, biography of Coke. Should be read together with other more scholarly works.

Boyer, Allen D. Sir Edward Coke and the Elizabethan Age. Stanford, Calif.: Stanford University Press, 2003. The first volume in a two-volume biography, examines Coke’s early life and legal career until 1603, the last year of Elizabeth I’s reign.

‗‗‗‗‗‗‗, ed. Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke. Indianapolis, Ind.: Liberty Fund, 2004. A collection of essays analyzing Coke’s judicial decisions, legal theories, and the relation of Crown and court in seventeenth century England.

Hostettler, John. Sir Edward Coke: A Force for Freedom. Chichester, West Sussex, England: Barry Rose Law, 1997. A more recent biography of Coke written by a British legal historian and former magistrate.

Keir, Sir David Lindsay. The Constitutional History of Modern Britain Since 1485. 9th ed. London: Adam and Charles Black, 1969. An excellent, well-written, and scholarly constitutional history of England since the Tudor monarchs that includes a detailed interpretation of the Stuart era. Coke is mentioned several times.

Sabine, George H. A History of Political Theory. 4th ed. Revised by Thomas Landon Thorson. Hinsdale, Ill.: Dryden Press, 1973. A historical survey of political thought from earliest times. Standard text in the field. Provides excellent background to appreciate the significance of political developments in England under the early Stuart kings. Includes brief discussions of Coke.

Smith, Lacey Baldwin. This Realm of England, 1399-1688. 8th ed. Boston: Houghton Mifflin, 2001. A readable and scholarly general history of England from the end of the medieval period to the Glorious Revolution. Part of a four-volume series. Excellent both for narrative and interpretation. Mentions Coke briefly.

White, Stephen D. Sir Edward Coke and “The Grievances of the Commonwealth,” 1621-1628. Chapel Hill: University of North Carolina Press, 1979. A detailed and scholarly examination of Coke’s work in the parliaments of 1621-1628 and of his critical role as promoter of the 1628 Petition of Right.