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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.
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