Editor's Published Articles

The Quatercentary of Sir Walter Raleigh's Trial
Part VIII: The Prosecutor

If Raleigh was the most romantic figure of his age, then Coke was the very opposite - a man of scholarly inclinations, with an unprepossessing appearance and an explosive temper, who retired to bed nightly at 10 and rose at 3 am only to pursue his bookish interests. Yet it may fairly be said that this unlikely man, more than any other figure in English legal history, is responsible for making the Common Law a systematic and effective legal regime; for establishing the jurisdiction of the Courts of Common Law to review abuses of executive power; and for creating that separation between the judicial branch of government, and the executive and legislative branches, which was regarded by political philosophers such as Locke and Montesquieu as the crowning glory of England's unwritten constitution, and which has been assiduously copied in the written constitutions of many nations, including the United States and Australia.

Coke's fame depends chiefly on three things: first, for his writings, especially the Institutes of the Laws of England and his Reports; secondly, for his efforts, as Chief Justice of the Common Bench, and subsequently as Chief Justice of the King's Bench, in enlarging the jurisdiction of both Courts, and in defending their jurisdiction from encroachment by other courts and by the executive; and thirdly, following his removal from office as Chief Justice, for asserting the rights of Parliament against the King.

Sir Edward Coke

Just as Coke's Reports are the progenitor to every series of law reports subsequently published, so his Institutes set the foundation for the study of Common Law as a serious academic discipline. Whilst he was not the first to publish law reports, nor the first to publish a scholarly analysis of English law, the form and content of each work set a standard against which all subsequent legal reporters and writers are measured. It was perhaps fortuitous for Coke that he was a contemporary of William Shakespeare, for Coke wrote mainly in the English language - the language of Shakespeare - which is still largely intelligible to English-speaking lawyers after four centuries have elapsed. The primacy of Coke's work is recognised in the fact that a reference to "the Reports", without any other qualification, is traditionally taken in Common Law courts as a reference to Coke's Reports; and the first volume of Coke's Institutes - his commentary on Littleton's Tenures - shares only with Blackstone's Commentaries the distinction of a standard abbreviation (Co. Lit. and Bl. Com., respectively) which is recognised by all practitioners in the Common Law world as a sufficient citation, without further explanation.

What characterises Coke's writings, and distinguishes them from Coke's predecessors, is Coke's use of authorities to justify his view of the law. Today, it is taken for granted that a legal text-writer will cite statutes, case-law, and the opinions of other writers expressed in books and articles, in support of a particular contention; but it was at Coke's hands that the quotation of precedents was transformed from a mere literary flourish, into a concerted attempt to trace an authoritative source for every proposition advanced. To this extent, Coke was not merely the first modern writer of English law; he was one of the first modern writers in any academic discipline. In Zerby, The Devil's Details: A History of Footnotes (2003), the author traces the first footnote to Elizabethan England, where a biblical margin note was removed to the bottom of the page; see also Grafton, The Footnote: A Curious History (1997) - if not the first, then Coke was surely one of the earliest exemplars of a practice which is now ubiquitous.

Title-page to Coke's Institutes

Appointed Chief Justice of the Court of Common Pleas, largely as a reward for his services to the Crown at the trial of Raleigh and the subsequent trial of Guy Fawkes and the other conspirators in the Gunpowder Plot, Coke almost immediately became embroiled in a brawl with the Ecclesiastical Courts. The issue was the payment of tithes - a tenth moiety of the agricultural product of land, originally payable in kind to the parish rector or vicar. In many parishes, there had long been compositions under which tithes were paid in money at a fixed annual amount; but as agricultural production increased, and the value of money diminished, the church sought to escape such compositions and recover a full one-tenth value of all agricultural production. Whilst the Ecclesiastical Courts had jurisdiction in relation to tithes, the question whether or not there was a composition was (in Coke's view) purely a matter of contract, and therefore cognisable only by the Courts of Common Law. The church objected to this, as juries - themselves parishioners - invariably found in favour of the parishioners. But Coke held steadfast, and succeeded in persuading the King to support the King's courts over those of the Church.

The next battle which Coke faced was with the Court of Chancery, which regularly granted relief against judgments of Common Law Courts, especially in the case of contracts which were enforceable at law but voidable on equitable grounds such as undue influence. Coke contended that, once a judgment was given at law, the matter was res judicata, and could not be reopened in any other tribunal. He also attempted to invoke the Statute of Præmunire, first enacted under Edward III and later expanded under Henry VIII, by which it was deemed an offence to challenge a judgment of the King's Courts in any other tribunal. The purpose of Præmunire was to prevent English subjects appealing to Papal courts against the judgments of English courts; but the words of the legislation were capable of being read widely enough to cover proceedings in Chancery. A prosecution was launched in the King's Bench against a litigant, along with his solicitor and counsel, for Præmunire in applying in Chancery for an injunction to restrain enforcement of a Common Law judgment; but, despite a direction that the facts proved constituted an offence, the jury acquitted.

Whilst the King had an interest to defend the jurisdiction of his Courts against the encroachment of Ecclesiastical Courts, the King had no predisposition to favouring his Common Law Courts over his Court of Chancery. The outcome therefore turned largely on the King's siding with Ellesmere in preference to Coke; and thus arose, almost by accident, the principle which is now taken for granted - that Equity prevails over the Common Law.

King James's decision to side with Ellesmere over Coke was largely a result of Coke's refusal to permit the King to interfere in the business of the Common Law Courts. In the famous case, published in Coke's own Reports under the name of Prohibitions del Roy, Coke records:

    "A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did belong to the common law: then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that 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 law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege ['the King is under no man, but is under God and the law']."

The King had Coke transferred from Chief Justice of the Common Pleas to Chief Justice of the King's Bench - a promotion in status, but a reduction in salary - in the hope that this would make Coke more compliant, or at least give him less opportunity to cause trouble for the King. Bacon was the architect of this plan, which also involved appointment of the then Attorney-General as Chief Justice in the Court of Common Pleas, thereby opening the way for Bacon to fulfil his ambition of becoming Attorney-General. But the plan back-fired, and Coke became an increasingly irritating thorn in the King's side. He denied the King's authority to create criminal offences by proclamation, to issue search warrants, or to arrest subjects otherwise than by due process of law.

Matters reached a culmination when the King wrote to each of the Judges, calling on them to refrain from hearing and determining a particular matter until the King's pleasure was known. Coke proceeded with the hearing in disregard of the King's instructions, with the result that all of the Judges were summoned to a meeting with the King in Council. Every one of the Judges, other than Coke, buckled to the King's pressure, and agreed that the King had power to make such a direction; only Coke stood firm in denying the King's authority to interfere in the proceedings of the King's Courts. As a result, James - acting again on Bacon's advice - dismissed Coke as Chief Justice.

Again a private citizen, Coke stood for Parliament, and rapidly emerged as leader of the Parliamentary opposition to the King. The Parliamentary rights on which he insisted - that the King had no power to suspend laws, or their execution, without Parliament's consent; that the King had no power to create judicial tribunals or commissions without legislative authority; that the King had no power to levy money without a Parliamentary grant; that the King had no power to raise or keep a standing army in time of peace, except with Parliament's consent; that the King may not interfere in the election of Members of Parliament; that freedom of speech and proceedings in Parliament may not be impugned by the King; and that Parliament must be convened at regular intervals - were all recognised before the end of the Seventeenth Century, by the Bill of Rights of 1689. But it may fairly be said that the principles reflected in the Bills of Rights were not novel, and that this great constitutional enactment merely declared and confirmed those rights which the Parliament achieved during the reigns of James I and Charles I, most particularly by the Petition of Right of 1628, of which Coke was the principal author.

Coke's role, in the forefront of Parliamentary opposition to the exercise of absolute and arbitrary power by James I and Charles I, placed him under no small personal danger. In 1623, at the age of 71, his efforts were rewarded by imprisonment in the Tower of London. Charles I attempted to keep Coke out of Parliament, by appointing him as Sheriff (without his consent) in his home County of Buckinghamshire - a Sheriff was not permitted to leave his County without the King's permission, and this enabled Charles to prevent Coke from travelling to London for Parliamentary sittings. But every attempt to silence Coke merely strengthened his popularity and influence: in successive elections, he was returned to the Commons, often by two or three different constituencies.

The "Gunpowder Plot" conspirators - prosecuted by Coke

By his death in 1634, at the then prodigious age of 82, Coke had almost single-handedly transformed the Common Law, English legal scholarship, and the English constitution, from their primitive medieval origins, into something serviceable for the needs and aspirations of a nation which was rapidly becoming a world power. No lawyer who studies Coke's life and achievements can fail to be overawed by his industriousness, learning, wisdom, and sagacity - which makes it all the more remarkable to discover the extreme savagery with which he conducted the prosecutions of the Earl of Essex in 1600-02, Sir Walter Raleigh in 1603, and the Gunpowder Plot conspirators in 1605. In two of these three cases, Coke's zeal is understandable, if not forgivable, given the demonstrable guilt of those whom he prosecuted. But in Raleigh's case, the grotesque brutishness of Coke's conduct is in no way ameliorated by the supposition that Coke, himself, might have been convinced of Raleigh's guilt.

No lawyer, no historian, no commentator, has reviewed the circumstances of Raleigh's trial without reaching a conclusion, if not favourable to Raleigh's innocence, then (at the very least) that the so-called "evidence" against Raleigh fell conspicuously short of proving his guilt, and that the so-called "trial" was a perversion of the judicial process. That this was not perfectly apparent to a lawyer of Coke's scholarship, a jurist of his devotion to the Common Law, a man of his commitment to the liberties of the subject, a person of his outstanding intellect and wisdom, is utterly impossible. The fact that he dedicated so much of his subsequent career to the extirpation of such abuses might suggest that, if he did not experience a Pauline conversion, his was at least a case of the King's gamekeeper turned poacher.

Click on the following icon to view or download this article in PDF format

128 kB (article without illustrations)

links to other parts of this article

Part I: Raleigh and Elizabeth I

Part II: The Essex Trial

Part III: James’s Succession

Part IV: The Main and Bye Plots

Part V: Cobham’s Allegations

Part VI: The Law of Treason

Part VII: The Accused

Part IX: The Trial

Part X: Raleigh’s Execution

copyright © 1998-2005
all rights reserved
Anthony John Hunter Morris QC
Level 13, 239 George Street

Brisbane, Queensland
elephone: +61 7 3229 0267
acsimile: +61 7 3221 6715

this page last updated 20 January 2004