Alice Marie Beard
2004


SIR EDWARD COKE
AND THE SAFE SHIELD OF THE LAW

            For English jurist Sir Edward Coke (1552-1634), words were his sword and the law his shield. His life was spent fashioning and defining his shield with his sword. Even today jurists look to Coke for just the right words: “The Court believes that the place to begin this discussion … is in English law and the development of the rights and liberties of the English people.  The rights and liberties of England became our inheritance. The Constitution of the United States and the constitutions of the states contain provisions that come directly from that source.”  The judge goes on to quote Sir Edward Coke’s version of the law.  The judge was Susan Webber Wright, United States District Judge, Western Division Arkansas, in a memorandum opinion and order in the case of Paula Jones v. William Clinton, December 28, 1994, and Judge Wright’s reasoning in denying President Clinton immunity followed the logic of Coke: Even the king is subject to the law.

            As Gratian was to Canon law in the 12th century, so Coke was to English law with his Reports, the first of which was published in 1600.  Twelve more Reports followed, and on his Reports he was able to base the four parts of his Institutes of the Common Law of England, volumes which served as the first and main textbooks for generations of law students, including many of the “founding fathers” of the Constitution of the United States of America.

            According to Christopher HILL in his Intellectual Origins of the English Revolution, published 1965 by the Oxford University Press in London, “There had been no systematic treatises at all since the fifteenth century. ... [T]here was a complete absence of recent cases, reporting those decisions by which the law was being modernized. ... And [Coke’s] method [of reporting] differed from that of his predecessors.  Unlike them, he was mainly concerned with the 'resolutions' of the judges, their statements of general principle, whether these formed the basis of their verdict or were dicta by the way."  Hill @ 232.  Coke served, in effect, as a reporter or journalist of past cases that had not been reported and published, and therefore were not available to be used as precedent.  With his Reports, he systemized and organized the law.

            It should be noted that Coke pruned and edited along with his reporting.  Some people "thought Coke gave himself further resource by devising precedents 'of his own head.'  In the 1621 Parliament he had to produce a manuscript to convince those [who objected].  In at least one case Coke reported the exact opposite of the actual decision, and in others the authors he cites do not support his conclusions."  Hill @ 253.  "Coke ... did his best to suppress any precedents that he did not like, taking care that 'such only as (in my opinion) should hereafter be leading cases for the public quiet might be imprinted and published.'  He was very successful: his successors rarely went behind Coke to see what medieval precedents really were.  Coke's words, Blackstone said, have 'an intrinsic authority in courts of justice, and do not entirely depend on the strength of their quotations from older authorities.'  Chief Justice Best put it more bluntly early [in the 19th century] when he said, 'We [would] get rid of a great deal of what is considered law in Westminster Hall if what Lord Coke says without authority is not law.'"  Hill @ 255.

            Coke’s writings were so prolific that people came to believe that whatever Coke wrote must be the law, because Coke had written it.

I.  A Word on the Man

            Coke was, of course, more than his written words, and before further consideration of Sir Edward, this journalist feels obligated to include some negative information.  Hill addresses Coke’s negatives at page 226: 

As Attorney-General, Coke behaved atrociously to [Sir Walter] Ralegh [sic] at his trial for treason, and no doubt to much lesser men of whom no record has survived.  Yet the bully was also a coward.  When King James threatened him with clenched fist, Lord Chief Justice Coke literally grovelled and 'fell flat on all fours.'  When he himself had broken the law three times over in his haste to marry Lady Hatton [Coke's 2nd wife] before Bacon could get her, and was had up in the Church courts, the greatest legal expert in the country pleaded ignorance of the law ... and got off.

After Coke's fall from royal favour in 1616, he hoped to reingratiate himself by marrying his daughter Frances to Sir John Villiers, brother of the royal Favourite.  When the lady refused, the ex-Lord Chief Justice seized her from her mother's protection in an armed raid and ... tied her to the bedpost and flogged her until she agreed. ... In the week of the marriage Coke was restored to his place on the Privy Council.

            The purpose of these few pages is not to evaluate or judge the character of Sir Edward Coke, but there is an obligation to look behind a man’s words.  In the opinion of Stephen D. WHITE, author of Sir Edward Coke and "The Grievances of the Commonwealth," 1621-1628, published 1979 by University of North Carolina Press, Chapel Hill, NC, there has never been a scholarly biography of Coke.  White describes Catherine Drinker BOWEN's The Lion and the Throne: The Life and Times of Sir Edward Coke, published 1956, Little Brown, and Company, Boston, only as a "useful popular biography" and says that "no general study of Coke's legal thought has ever been published" although "his legal ideas are the subject of several brief studies."  White says that, although Coke's Reports have been analyzed, and even the contents of his library have been analyzed, the "current state of historical scholarship on Coke is unsatisfactory."  White @14.   White says that Coke’s legal views should be studied in conjunction with his political career “to analyze the significance of his views for his own era."   Surely a scholarly biography would also consider the conflicts between Coke’s words and his deeds towards his intimates.

II. Turf Carving and Word Sparring with King James I

            Sir Edward is widely credited with being the progenitor of the modern doctrine of judicial review.  Before there was Marbury v. Madison, 5 U.S. 137 (1803), there was Dr. Bonham’s Case in 1610, with Coke sitting as jurist, first published in Coke’s Reports, volume 8, page 113 b.

            Dr. Bonham was a physician practicing in London.  He had a medical degree from a major university; however, he had no "license" to practice medicine.  As summarized by Steve SHEPPARD, editor of The Selected Writings and Speeches of Sir Edward Coke, Vol. One, published 2003, by the Liberty Fund, Indianapolis, Dr. Bonham had been fined for practicing medicine without a license issued by the Royal College of Physicians (RCP).  Bonham continued practicing medicine; the RCP arrested, jailed, tried, and fined Bonham, with the fine payable to the RCP.  Coke and two other judges ruled that RCP could not act as a judge in a case in which it was also a party. 

            Coke added dicta: "[T]he common law doth controll Acts of Parliament, and sometimes adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void...."  Bonham, 8 Reports 113 b, 118 a (Court of Common Pleas, 1610).

            What is forgotten by some is that less than three months before Bonham, Sir Edward and King James I had been in a battle of words and wits, with the King asking Coke to put his imprimatur on something that the King wanted to do.  The King wanted to restrict building in London and to regulate trade of specific commodities (starch).  The King asked Coke to rule that such a royal edict would meet with the law.  Coke consulted with two other judges on the bench before issuing an opinion not to the King’s liking.  Coke’s opinion was that, while the King had the power to require subjects to obey the law, "[T]he King cannot change any part of the Common Law, nor create any Offence by his Proclamation, which was not an Offence before, without Parliament."  The "memorand" was first published in 12 Reports 74 as notes of the conference with the Privy Council, at page 75.  Coke continued, “[T]he Law of England is divided into three parts: Common Law, Statute Law, and Custom; But the King's Proclamation is none of them."   12 Reports 74, @ 76.

            Those surely were not the words the King had wanted. 

            Coke’s battle with King James I had begun even earlier.  In 1607, four years into James’ reign, Coke sat on Nicholas Fuller’s Case.  The case involved a battle between law courts and church courts.  As summarized by Sheppard at page 454, Coke “asserted the authority of the law courts to determine the extent of the powers of the church courts … [and specified] that the Law court cannot give a consultation or issue writs when it is not in session.” 

            The Archbishop of Canterbury did not like that ruling and complained to the King.  The King approached Coke, and Coke’s response was not only to defend his answer in Fuller's Case, but to argue “against the King's acting as a judge of law.  Moving from a traditional rational for such prohibitions that the law judges are agents of the King, Coke assert[ed] that the law is itself the essential measure of such cases and that judges, not the King, interpret the law, which is not based on reason in general but based on the artificial reason of past cases applied by legal custom." Sheppard @ xlviii.

            Sir Edward Coke had looked at the King and said, “THIS turf is mine!”  Their relationship did not warm.

III. To the Tower

            In 1621, King James was attempting to arrange a marriage between his son Charles, then 21, to the daughter of the King of Spain.  James’ logic was that such a marriage would improve relations between England and Spain.  Members of Parliament openly complained about the proposed marriage because the daughter of the King of Spain was Roman Catholic.  While James gave assurances that Catholicism would not return as the official religion of England, the Protestants were loath to have a Catholic queen.

            Coke and others in Parliament openly criticized the possibility of such a marriage between England’s royal family and Spain’s Catholic royal family.  The critiques sent their message to the King, and their message included the argument that they had the freedom of speech, and so were speaking.  The King responded that whom the Prince married was not their business, and regarding their freedom of speech, the King replied, “[W]e cannot allow of the style, calling it your ancient and undoubted right and inheritance; but could rather have wished that ye had said, That your privileges were derived from the grace and permission of our ancestors and us, for most of them grow from precedents, which shows rather a toleration than inheritance."   Bowen @ 452.

            What had begun as a quarrel about whether the Prince should marry a Spanish princess (whom the Prince himself late opted not to marry), had become a fight over freedom of speech, and Coke began expounding about his “inheritance.”  Coke's response was, "If my sovereign will not allow me my inheritance, I must fly to Magna Charta and entreat explanation of his Majesty.  Magna Charta is called Charta libertatis quia liberos facit. ... The Charter of Liberty because it maketh freemen.  When the King says he cannot allow our liberties of right, this strikes at the root.  We serve here for thousands and ten thousands."  Bowen @ 453.

            Coke argued for the best response to the King's words to be that the Parliament write their grievances in the form of a “Protestation” and publish the protest in the Journal of Parliament. The Protestation was completed late December 18, 1621:

That the liberties, franchises, privileges and jurisdictions of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the King, state and defence of the realm, and of the Church of England, and the maintenance and making of laws and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in Parliament; and that in handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech, to propound, treat, reason, and bring to conclusion the same: and that the Commons in Parliament have like liberty and freedom to treat of these matters in such order as in their judgments shall seem fittest, and that every member of the said House hath like freedome from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring any matter or matters touching the Parliament or Parliament business; and that, if any of the said members be complained of and questioned for anything done or said in Parliament, the same is to be shewed to the King by the advice and assent of all the Commons assembled in Parliament, before the King give credence to any private information.

            Nine days later, December 27, 1621, King James sent Coke to the Tower.  Coke's house was sealed and his legal papers were taken. While in the tower, Coke began work on his commentary on Littleton's Tenures, a commentary that became the First Institute.  Initially, he had no writing instruments, so he wrote with coal on walls.

            The King released Coke August 1622; Sir Edward Coke had been imprisoned 26 weeks and five days.  Bowen @ 455. Coke was back in Parliament in February 1624.  As King James said of Coke, he was like a cat, and would always land on his feet.

IV. An Attempt to Vanquish What the Moving Pen Had Writ

            According to Hill, page 245, Coke’s house was ransacked in 1634 as he was dying.  Over 50 manuscripts were removed, including the last three Parts of the Institutes.  “The old regime was well aware of the danger and the appeal of Coke's views, and effectively silenced him.  The Long Parliament had hardly sat for a month when it appointed a committee to recover Coke's confiscated writings, and in 1641, ... [it] ordered the remaining three Parts of the Institutes to be published. ... Henceforth the Reports and the Institutes were accepted as the law of the land. ... When the compilers of the Massachusetts Code of 1648 were at work, they ordered copies of Coke's Institutes, Reports, New Terms of the Law, and Book of Entries."

            Neither the Tower of London nor the Angel of Death could silence Sir Edward Coke.

VI. Analyzing Coke

            Sir Edward Coke’s words on law continue to be analyzed.

            According to Hill (page 257), Coke's works "gave Englishmen an historical myth of the English constitution parallel to [John] Foxe's myth of English religion [in his 1563 Book of Acts and Monuments].  In primitive times Englishmen had good laws. … [T]he continuous enjoyment of those laws had been broken by William the Conqueror (with the support of the Pope) and by many of his successors. But Englishmen had fought back." 

            As part of Coke’s myth, Coke claimed that “Parliament existed before King Arthur, and that there were sheriffs before the Saxon invasions.”  Hill @ 257.

            According to Allen D. BOYER, author of Sir Edward Coke and the Elizabethian Age, published 2003, Stanford University Press, Stanford, “Coke attempted to argue both that common law was custom and that the common law had not changed since the days of the Druids."  Boyer @ 87.

            Some offer an economic analysis of Coke’s writing: Boyer claims that the certainty Coke sought looked, "toward the economist's observation that the definition of rights is necessary for orderly commerce, because only what is clearly defined can be accurately valued or meaningfully exchanged."  Boyer @ 98.  Hill argues that “Coke's unspoken assumption that men have a right to do what they will with their own persons and skills represents the thread of continuity running through all his decisions."  Hill @ 236.

VII.  Getting to Marbury

            According to Wolfgang HOFFMANN-RIEM (Law Professor at University of Hamburg, and Judge at the Federal Constitutional Court in Karlsruhe), "Coke's idea had only limited success in English law.”  Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe, 5 German Law Journal 6 (June 2004).  Hoffmann-Riem argues that there are three steps to establishing a judicial right of review, in any political arena: (1) The recognition of a higher ranking law as a standard against which other legal norms are measured. (2) Allocation of the right of review to a court.  (3) Either the right of review is transferred to an existing court, or a special constitutional court is established.

            “The political need was lacking when … Sir Edward Coke asserted in Bonham’s Case in 1610 that the Common Law, with its principles of reason and justice, took precedence over legislation enacted by parliament.”

            In Colonial America, “Ideas were needed to justify resistance to the British colonial masters.  [L]awyer James Otis made use of this argument to oppose a bill before the English parliament. The bill sought to authorize British customs authorities to search for smuggled goods. In reliance on Coke, Otis concluded that an unjust law was invalid and should not be enforced by the courts."  Hoffmann-Riem, at paragraph 17.

            Otis’ argument failed.  It was 1761, and he was appearing before the (British) court as lawyer for the Boston merchants who did not want their places of business searched for contraband that was in violation of the Molasses Act of 1733.

            In 1793, in Chisholm v. Georgia, 2 U.S. 419, Justice Iredell called on Coke by quoting Coke’s comments about an ancient book called Mirror of Justice.   The book had been written before the conquest of William the Conqueror, and according to Coke’s analysis of that book, prior to the conquest even the King could be sued as a common person. 

            In 1795, in Vanhorne’s Lessee v. Dorrance, 2 U.S. 304, Justice Patterson quoted generously from Coke:

“The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendant and absolute, that it cannot be confined, either for causes or persons, within any bounds.  And of this high court, he adds, it may be truly said, ‘Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima.’ It has sovereign and uncontroulable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: This being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.  All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal.  It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII and William III.  It can alter the established religion of the land; as was done in a variety of instances, in the reigns of King Henry VIII and his three children.  It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament."  Vanhorne’s Lessee @ 307.

            In 1795, William Paterson was a Justice on the U.S. Supreme Court; in  1776, Paterson had been one of the signers of the U.S. Constitution. 

VIII.  Marbury

            Although scholars recognize Chief Justice John Marshall’s 1803 Marbury v. Madison as the American version of Sir Edward Coke’s Bonham, Marshall mentioned neither Coke nor Bonham in the opinion.  However, Marshall left telltale signs, as noted by Noah Feldman, Professor of Law at New York University School of Law, in a paper presented April 26, 2003, "The Voidness of Repugnant Statutes: Another Look at the Meaning of Marbury," and printed in Proceedings of the American Philosophical Society, Vol. 148, No. 1, March 2004.  Feldman draws attention to Marshall's phrase in Marbury "an act of the legislature repugnant to the constitution is void," and argues, “"In Marbury, in crafting the classic formulation of the doctrine of judicial review, Chief Justice Marshall adapted the language of the maxim, then more than two hundred years old, that statutes repugnant to reason were void.  For 'reason' he substituted the Constitution."  Feldman @ 28.

            Marshall used in Marbury the same words that Coke had used in Bonham: "repugnant" and "void."  Feldman continued, “Lord Coke, sitting in judgment on the case of one Dr. Bonham, seems to have brought these terms into the vocabulary of English-speaking lawyers.”  Feldman quoted Coke from Bonham:  "[I]t appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossile to be performed, the common law will controul it, and adjudge such act to be void."

            Feldman saw those words as "telltale of the connection between Dr. Bonham's case and Marbury."  As Feldman wrote, "[T]he word 'repugnant' is a relatively rare word in legal discourse. When we see it recurring alongside the notion of voidness in these two cases separated by almost two hundred years, we can be certain there is no coincidence."  Feldman @ 30. “Chief Justice Marshall in Marbury used the familiar, even classical, language of repugnancy and voidness to make a strikingly novel and constitutional point in the American context.”  Feldman @ 31.

IX. Coke in American Cases After Marbury

            Sir Edward Coke continues being cited by American jurists.  The list below, although not comprehensive, shows cases in which jurists have drawn on Coke’s logic with the law:

United States v. Smith, 18 U.S. 153 (1820):  Justice Story cited Coke among several in hunting for a definition of what a “pirate” is.  Story also cited Blackstone, whose definition cited Coke.

Green v. Biddle, 21 U.S. 1 (1823): Justice Story quoted from Coke to define land and property rights.

United States v. Castillero, 67 U.S. 17 (1862):  Justice Clifford, in a case dealing with a California silver mine, quoted Coke regarding property rights.

Ramsay v. Allegre, 25 U.S. 611 (1862):  Justice Johnson, in a concurring opinion, writes of Coke, “The authorities which he cites are valuable for their antiquity, as they show that the Courts in his time were only treading in the steps of those who had preceded them.”

Hurtado v. California, 110 U.S. 516 (1884):  Justice Matthews mentioned Lord Coke and Bonham’s Case.

Hyatt v. Vincennes National Bank, 113 U.S. 408 (1885): Justice Blatchford quoted Blackstone quoting Coke on the definition of “chattels real.”

Williamson v. United States, 207 U.S. 425 (1908):  Justice White quoted Cushing quoting Coke on Parliamentary priviledge.

Tumey v. Ohio, 273 U.S. 510 (1927):  Justice Taft cited Coke’s Bonham for the principle that “the slightest pecuniary interest of any officer, judicial or quasi-judicial, in the resolving of the subject matter which he was to decide, rendered the decision voidable.”

Klopfer v. North Carolina, 386 U.S. 213 (1967):  Chief Justice Warren cited Coke in a case about the right to a speedy trial and added, “Coke’s Institutes were read in the American Colonies by virtually every student of the law.  Indeed, Thomas Jefferson wrote that at the time he studied law (1762-1767), ‘Coke Lyttleton was the universal elementary book of law students.’  And to John Rutledge of South Carolina, the Institutes seemed ‘to be almost the foundation of our law.’ To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty.  Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that of Coke's explication: ‘In all capital or criminal prosecutions,’ the Virginia Declaration of Rights of 1776 provided, ‘a man hath a right . . . to a speedy trial. . . .’”  Klopfer @ 225.

Moody v. Daggett, 429 U.S. 78 (1976):  Dissent by Justice Stevens quoted Coke on guarantee to speedy trial.

Ford v. Wainwright, 477 U.S. 399 (1986):  Justice Thurgood Marshall quoted Coke in the case of the execution of a man who had become insane since trial and sentencing: “[B]y intendment of Law the execution of the offender is for example, … but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law and of extreme inhumanity and cruelty, and can be no example to others.”  Ford @ 407.

Pacific Mutual Life Insurance v. Haslip, 499 U.S. 1 (1991):  Justice Blackmun quotes Coke on the phrase “due process of the law,” and writes, “The American colonists were intimately familiar with Coke…”  Pacific @ 29.

Washington v. Glucksberg, 521 U.S. 702 (1997):  Chief Justice Rehnquist, arguing against suicide, wrote, “In 1644, Sir Edward Coke published his Third Institute, a lodestar for later common lawyers. Coke regarded suicide as a category of murder…”  Glucksberg @ 712, footnote 10.

Brogan v. United States, 522 U.S. 398 (1998):  Dissent by Justice Stevens argued, “[A]s Sir Edward Coke phrased it, ‘it is the common opinion, and the communis opinio is of good authoritie in law.’”  Brogan @ 420-421.

X. Conclusion

            Judge Susan Webber Wright was in good company by citing Sir Edward Coke when she reasoned that not even the King was above the law, even if the “king” were a sitting American president.  Coke’s name may not roll off the tongue of every law student in the year 2004, but Sir Edward Coke’s ideas surround us.

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