Sir Edward Coke and The Common Law

SIR EDWARD COKE AND THE COMMON LAW
P A Keane†
I am honoured to have been invited to speak to you today. I am very happy to be here in Hong
Kong; and to have the opportunity to speak to you about the common law.
I acknowledge immediately that I am here today because Hong Kong and Australia share in
the inheritance of the common law. It is because I have been a judge of another common law
jurisdiction that, by virtue of Article 82 of the Basic Law that I was eligible to be appointed to
the Court of Final Appeal.
When we speak of the common law, we use an expression that, in its broadest sense, refers to
a method of adjudication of disputes, and the accompanying mindset of those engaged in the
process of adjudication, whether they sit on the Bench or at or behind the Bar table. An aspect
of the process of adjudication that distinguishes the common law from other legal systems is
the force attached to previous decisions of the courts in accordance with the rules of “Stare
decisis”, the doctrine of precedent. In this regard, Article 84 of the Basic Law provides that
the courts of Hong Kong “may refer to precedents of other common law jurisdictions”.
In resolving disputes about contracts or civil wrongs or the principles of equity, the method of
adjudication that we speak of as the common law is characterised by the application of rules
laid down at an earlier time, and often in another place, by other judges. Within the constraint
of legislative pre-eminence, subject to the Basic Law, the common law is enforced by courts
which, while enforcing the law, may also make law, by taking steps not previously taken to
confer rights or impose liabilities albeit in accordance with the perceived logic of a course
plotted by earlier decisions.
Since the 18th Century, it has been recognised within the common law tradition. The great
value of equality before the law, and the rule of law itself, require that the power to make the
†
Non-Permanent Judge of the Hong Kong Court of Final Appeal.
2
laws be exercised separately from the power to enforce those laws. As John Locke said in his
Two Treatises of Government1:
“for the same Persons who have the power of making Laws, to have also in their hands
the power to execute them … they may exempt themselves from Obedience to the Laws
they made, and suit the Law, both in its making and execution, to their own private
advantage.”
As Jeremy Waldron has explained, if the processes of making, adjudicating upon and enforcing
laws are in the same set of hands, those hands may “direct the burden of the laws they make
away from themselves.”2
So we have an apparent contradiction. The feature which is characteristic of the common law
seems to be in conflict with its bedrock value of equality before the law reflected in the
separation of powers as that idea has been understood since the end of the 17th Century in the
writings of John Locke. If judges make law in the course of enforcing it, they may advance
their own class interests to their own advantage, and direct the burden of the laws away from
themselves and others of their class, and onto others. Since the end of the 17th Century this
contradiction has largely been resolved, at least as a practical matter if not as a matter of theory,
by the recognition of the legislature as the pre-eminent law-making power as against the
executive and judiciary. This pre-eminence was not established as a matter of legal theory, but
pragmatically by the triumph of Parliament in the English civil wars that concluded with the
constitutional settlement at the end of the 17th Century.
I do want to say something about this aspect of the common law, but it is more interesting to
speak about people rather than abstractions. And so I propose to focus upon one of the most
interesting people in the history of the common law, Sir Edward Coke. He is celebrated,
especially in North America, as a great hero of the common law3, especially by those who
champion judicial power as a brake on the perceived excesses of the legislature. In this regard,
Coke was not only a proponent of the judicial power to make law but a champion of the view
1
Locke, Two Treatises of Government, Peter Laslett (ed), (1988) at 364.
2
Waldron, “Separation of Powers in Thought and Practice?” (2013) 54 Boston College Law Review 433 at 446.
3
Alward, “Coke: The Great Oracle of the Common Law” (1912) 32 The Canadian Law Times at 929; Boyer,
Law, Liberty and Parliament: Selected Essays on the Writings of Sir Edward Coke (2004); Hostettler, Sir Edward
Coke: a Force for Freedom (1998).
3
that the common law, that is to say the judges, could control the legislature. He was not,
however, consistent in this regard. In the course of his extraordinary career, he supported both
the absolute power of Parliament and the controlling power of the judges. It is not unknown
in history that one finds a hero who fights for both sides in a particular struggle. But it is rare.
A study of Coke’s contribution to the development of what we have come to understand as the
common law brings to mind the saying that where one stands on an issue often depends on
where one sits. A study of Coke work as a lawyer, parliamentarian, scholar and judge confirms
that where Coke stood on these great issues depended very much on where he sat.
Beginnings
Coke was born in 15524. He grew up with seven sisters in Norfolk. The most important of his
early formative influences was the Church of England. As Catherine Drinker Bowen says, in
her magisterial 1957 biography of Coke, The Lion and the Throne5:
"There is no overestimating the effect of ... burning missionary

Protestantism on the youth of Edward Coke. Morning and evening the boy knelt
with his fellows on the stone schoolroom floor and chanted the Lord's Prayer
and the Creed, with some final devotion in English from the recently established
Book of Common Prayer. The reiterated words, English and Protestant where,
since time immemorial, they had been Latin and Catholic, reached very deep.
Coke lived – and died (his daughter was to testify) – a Church of England man,
'a deare lover of its Liturgie, constant to it in his life and at his death.'"
In the autumn of 1567, Coke set off for Trinity College, Cambridge. The University was
favoured by Queen Elizabeth; it was, unlike Oxford, a Protestant stronghold.
We tend to associate Cambridge at this time with that strain of fiery evangelical Protestantism
celebrated in its Puritan graduates, the most famous of whom was Oliver Cromwell; but there
were many other important, albeit less radical, Protestants produced by Cambridge. As
Macaulay said: "Cambridge had the honour of educating those celebrated Protestant Bishops
whom Oxford later had the honour of burning."6
4
Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke, (1957) at 45-46.
5
Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke, (1957) at 49.
6
Macaulay, Critical and Historical Essays Contributed to the Edinburgh Review, 5th ed (1848), vol 2 at 287.
4
Coke was virulently anti-Catholic. But notwithstanding Coke's later clashes with the
ecclesiastical courts and the royal prerogative, his world view remained in the Anglican
mainstream. He was an Episcopalian rather than a Puritan. And just as he was a committed
Anglican, so he was a proud Englishman. He became an eloquent champion of English legal
exceptionalism. His exalted view of the supremacy of the common law of England was of a
piece with his belief in the inferiority of the institutions of continental Europe. These he saw
as irretrievably tainted by their association with the Catholic Church. His anti-Catholicism
suffused his opposition to all things European, the courts of equity in particular.
After three years, Coke left Trinity College without obtaining a degree, which was not unusual
at that time. He travelled to London, his sights set on becoming a barrister.
Early Career
On 21 January 1571, Coke first entered that "little kingdom of the law", the ancient Inns of
Court7.
After completing a year's study of law at Clifford's Inn, Coke made his way across Fleet Street
to join the fellowship of the Inner Temple where, for seven years, he studied law.
In 1578, Coke was admitted to the bar. He travelled back to Norfolk, finding himself at the
right time and in the right place for his first big case. It was a libel suit that involved great
names and the abiding controversy over religion8.
Coke's client, an orthodox Vicar of the Church of England, accused Lord Henry Cromwell, the
grandson of Thomas Cromwell, of sedition by reason of Cromwell's puritanism. Cromwell
sued Coke's client for damages under the ancient legislation which was intended to prevent
people speaking ill of the aristocracy, the statute Scandalum Magnatum. Bowen relates that:
"Coke … discovered a mistake in the written declaration of [Cromwell's]

counsel – only one word, but it sufficed. The original Act of Scandalum
7
8
5
Magnatum had been, since its passage in 1378, translated from Latin into law
French, then into English. Cromwell's lawyer, instead of referring to the
original statute, had been content with a third-hand English version which
rendered the French word messoinges (lies) as 'messages.' Translating this back
into Latin, Coke's opponent wrote nuncia (Latin for messages), 'whereas' Coke
told the court triumphantly, 'it should have been mendacia [lies].'"
Cromwell's case was thrown out, and Coke's reputation was made. That Coke's career took off
on the basis of this piece of pettifogging pedantry says as much about the legal system of the
time as it says about Coke's talent.
This is an example of the hyper-technical formalism of the rules of pleading at this time. In
Coke’s triumphant mastery of the arid technicalities that have little to do with justice, we can
see the power of the emergent professional class of lawyers who were able to insist upon these
arid rules of their own devising as a demonstration of their social power. We will see later, in
Coke’s confrontation with King James, how Coke’s professional mindset as a lawyer and judge
shaped his insistence that the “reason” of the common law – and of the judges of the common
law – was different from, and privileged above, the reason of layman, including even the King
and the elected representatives of the people in Parliament.
From 1579 to 1581, Coke was involved as counsel for one of the defendants in the famous
Shelley's Case, from there onwards he started to appear without a leader in important cases9.
In 1582, he married his first wife Bridget Paston (then aged 17). Bridget was a devoted and
loving wife and mother. She bore Coke 10 children over 15 years. She also made him a very
rich man: her dowry was £30,00010.
Speaker of the House of Commons

In 1592, Queen Elizabeth named Coke Solicitor-General, making him second among the
government's lawyers only to the Attorney-General, Sir Thomas Egerton, who later became
Lord Ellesmere. Six months later, Elizabeth named Coke Speaker of the House of Commons11.
9
Coke had appeared many times as junior counsel to Plowden and Popham.
10
11
6
Given Coke's reputation as a champion of the common law, it should be noted here that, as
Speaker of the House of Commons in 1592-1593, he made a point of exalting Parliament as
"the great corporation or body politic of kingdom". Significantly, for the man who as a judge
would write the judgment in Dr Bonham's Case12, in the role of Speaker, he was a proponent
of Parliament's "absolute powers"13.
Here, we get an early glimpse of Coke as an example of what might be called the
Thomas Becket syndrome. That is the condition, common to the great careerists, whereby the
beliefs and allegiances of an office holder change to accommodate the requirements of the
office that he or she currently holds.
Coke's time as Speaker was short. Encouraged by his evident powers of persuasion as Speaker,
and angered by a speech given in Parliament by Francis Bacon questioning the Crown's
attempts to secure supply, Elizabeth settled upon Coke, rather than Bacon, as her next
Attorney-General. On 10 April 1594, "Elizabeth signed letters patent advancing Thomas
Egerton to the vacant office of Master of the Rolls … and granting the Attorney-Generalship
to Edward Coke."14
Attorney-General
Coke's time as Attorney-General was marred, four years later, by the sudden death of his wife
in June 1598.
Coke remarried immediately. His choice of bride, Lady Elizabeth Hatton, was entirely venal
and opportunistic. Lady Hatton was wealthy and well-connected, being related to the
all-powerful Cecils. He pursued her with unseemly haste. Coke buried Bridget Paston in July
1598. In August, he proposed and was accepted by Lady Hatton. In November 1598, they were
married. This was all to the chagrin of Francis Bacon, who also had his eye on Lady Hatton.
As a barrister, Coke appeared in many important cases. His involvement as prosecutor in the
trial of Sir Walter Raleigh for high treason deserves a mention here. The principal witness
against Raleigh was Lord Cobham. In 1995, a summary of the prosecution brief prepared for
12
(1610) 8 Co Rep 1136 [77 ER 646].
13
Holdsworth, A History of English Law, 3rd ed (1945), vol 4 at 184.
14
7
Lord Ellesmere was discovered. It showed that after Cobham had made his statement
implicating Raleigh in his own treason, he had retracted it before the investigators 15 . It is
inconceivable that Coke did not know of Cobham’s retraction. It is to his shame that at the trial
he never mentioned that Cobham had retracted his statement implicating Raleigh. For the
student of the common law, there is no little irony in his aspect of Coke’s conduct.
In Coke's time, criminal trial procedure was very different from that with which we are familiar.
The accused was unrepresented and was subject to interrogation by the prosecutor and the
judge. The prevailing theory was that the prosecutor and the judge could be relied upon to
ensure that the accused received a fair trial. Coke himself wrote in support of this theory in the
Third Part of the Institutes: "[T]he Court ought to be … of counsel for the prisoner, to see that
nothing be urged against him contrary to law and right."16 Coke's conduct as a prosecutor went
a long way to demonstrating that this theory was pious nonsense.
As Professor Langbein has shown, it was the work of defence counsel, once legal
representation came to be permitted, which forged the adversarial system as we know it, with
its in-built protections of the accused, including the right to silence and the privilege against
self-incrimination, this work taking place between the mid-17th and late 19th Centuries17. The
diligent work of defence counsel over the subsequent decades, which culminated in the
accusatorial system of criminal justice with its protections of the individual against
prosecutorial oppression, was a reaction to the kind of abuses perpetrated by Coke, the iconic
defender of the liberty of the subject.
In the eyes of King James, Coke's performance as Attorney-General qualified him for
promotion.
Chief Justice of the Common Pleas

In early 1606, Robert Cecil indicated that appointment as Chief Justice of the Common Pleas
might be in the offing. Coke, ever the controlling pedant, wrote to Cecil advising him of the
proper procedure: "I am bold to inform you what course I must take", Coke said.
15
Nicholls, "Sir Walter Raleigh's Treason: A Prosecution Document", (1995) 110 English History Review 902.
16
Cited by Langbein in "The Historical Origins of the Privilege Against Self-Incrimination at Common Law",
(1994) 92 Michigan Law Review 1047 at 1050, fn 9.
17
Langbein, "The Historical Origins of the Privilege Against Self-Incrimination at Common Law", (1994) 92
Michigan Law Review 1047 at 1050-1052.
8
"First, I must be made Serjeant, which may be on Saturday next, and the Chief
Justice on Monday. There must be a writ (for which my Lord Chancellor will
have warrant) returnable on Saturday to call me to be a Serjeant, and a warrant
for the patent of the office of Chief Justice of the Common Pleas."18
In accordance with Coke's demands, he was made a Serjeant-at-law on 20 June 1606 and was
elevated to the Chief Justiceship on 30 June.
As Attorney-General, Coke had been a champion of the royal prerogative even in its darker
aspects, as we shall see. As Chief Justice of the Common Pleas, Coke's attitude toward the
prerogative of the King would undergo an almost complete reversal. In his new position he
became a spokesman for the institutional claims of the courts of common law against the claims
of the prerogative.
Nicholas Fuller – a barrister and member of Parliament and an enthusiastic Puritan – in the
course of defending Puritan clients on charges of contempt of the ecclesiastical court known as
the High Commission, insulted the bishops who were members of the court. He was imprisoned
by them for contempt.
Writs of prohibition were issued by the Court of Common Pleas restraining the ecclesiastical
and civil courts from proceeding further against Fuller on the basis that the conduct of a
barrister, even in an ecclesiastical court, was exclusively regulated by the courts of common
law whose officer the barrister was19.
The King sought to resolve the case himself in order to break the deadlock between the courts,
which he saw as mere agents through which he exercised sovereign power. James' position was
that his prerogative was supreme, given that, as he put it, there were kings "before any
Parliaments were holden, or laws made"20. He arranged for a meeting of the ecclesiastical and
common law judges to be held at Whitehall on 6 November 1608. The report of the meeting is
18
19
20
9
called the Case of the Prohibitions21. The first meeting was inconclusive, so a further meeting
was held the following week. At this meeting James said:
"In cases where there is not express authority in law, the King may himself
decide it in his royal person; the Judges are but delegates of the King, and the
King may take what causes he shall please from the determination of the Judges
and may determine them himself."22
Coke disagreed, saying the King may consult with the Judges but not decide cases himself.
Growing agitated, the King said23 that:
"as supreme head of justice, [he] would defend to the death his prerogative of
calling judges before him to decide disputes of jurisdiction. Moreover, he would
'ever protect the common law.'
'The common law,' Coke interjected, 'protecteth the King.'
'A traitorous speech!' James shouted. 'The King protecteth the law, and not the
law the King! The King maketh judges and bishops. If the judges interpret the
laws themselves and suffer none else to interpret, they may easily make, of the
laws, shipmen's hose!'"
Coke's own report24 of the incident picks up the story:
"[T]hen 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
21
(1607) 12 Co Rep 64 [77 ER 1342].
22
23
24
(1607) 12 Co Rep 64 at 64-65 [77 ER 1342 at 1343].
10
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 – that the King
should not be under man, but under God and the law."
Coke's own report of this famous incident ends there; but we know from other sources that, in
fact, the confrontation continued. The King rejected Coke's quotation from Bracton; and Coke
fell weeping to his knees begging forgiveness.
But he was not beaten: "[n]ext morning a new prohibition, under Coke's seal, went out to the
High Commission from the Court of Common Pleas."25
Coke championed the supremacy of the common law as an essentially continuous body of law
derived from Anglo-Saxon custom and reflecting natural law as Coke saw it. His view was that
the authority of the common law pre-dated the Norman Conquest. But this view was not that
of a disinterested scholar. Coke’s position was polemical and political. In supporting the notion
that the power of the King was itself the creature of the common law, Coke was supporting the
claim of the judges, of whom he was now the leader, to the lion's share of sovereign power at
the expense of the King and Parliament.
As a legal historian, Coke's scholarship was deficient. The historical reality as a matter of fact
was that the English judiciary was the creature of Henry II. The judges were, from the first
moments of the common law's self-consciousness, directly dependent on the King in whose
name they dispensed justice throughout the realm. The judges even discussed their cases
directly with the King. As Ralph Turner has noted26, the judges at the time of the Angevin
Kings often marked their cases "loquendum cum rege", that is, "to be discussed with the King".
25
26
Turner, "The English Judiciary in the Age of Glanvill and Bracton", (1985) Cambridge University Press at
159.
11
And as noted by Edward Rubin, the researches of Pollock and Maitland have amply
demonstrated that, as a matter of history, it is to Henry II and his justiciars that we must look
for the creation of the common law as a body of rules administered throughout the realm27. In
this, the better view of the historical development of the common law, the King, and the
sovereign power initially embodied solely in the King, was the true fountain of justice.
We can detect echoes of Coke's argument in the observations of Lord Steyn in the House of
Lords' decision in R (Jackson) v Attorney General28 to the effect that while the supremacy of
Parliament is the basic principle of the UK constitution, the principle was itself a construct of
the common law created by the judges who might, in some circumstances, create qualifications
to the principle. Admirers of Henry II, or of Oliver Cromwell, would respond that the British
constitutional principle as to the Supremacy of Parliament might have been described by the
judges of the common law, but the principle being described was established, as a political fact,
by means other than the decisions of the courts.
The second, and more obvious, point about Coke's position on the supremacy of the common
law is that he did not consistently maintain the view he espoused in the Case of the Prohibitions.
As we have seen, when his interest in his own advancement coincided with the institutional
claims of the sovereign legislature, he spoke in favour of the "absolute" authority of the King
in Parliament.
Chief Justice of the King's Bench

Coke's conduct as Chief Justice of the Common Pleas did not endear him to James, and fell
into disfavour. Upon the death of Coke's friend and patron Robert Cecil in May 1612, Coke's
arch-rival Francis Bacon was at last able to gain greater influence with the King. Bacon sought
to isolate Coke.
Bacon's opportunity came on 7 August 1613, when Chief Justice Fleming of the King's Bench
died. Bacon proposed that Coke be removed from the Common Pleas to the King's Bench.
Bacon made the cynical suggestion that "[a]s Chief Justice, Lord Coke would see the coveted
27
Rubin, "Seduction, Integration and Conceptual Frameworks: The Influence of Legal Scholarship on Judges",
(2010) 29 University of Queensland Law Journal at 106-107.
28
[2006] 1 AC 262. See also, Dixon, "The Common Law as an Ultimate Constitutional Foundation", (1957) 31
Australian Law Journal 240.
12
position of Privy Councilor dangling 'and thereupon turn obsequious.'"29 The King agreed, and
Coke became Chief Justice of England on 25 October 161330.
But contrary to Bacon’s expectations, as Chief Justice, Coke continued to frustrate the
prerogative by promoting the supervisory jurisdiction of the common law courts over what they
regarded as inferior tribunals. Writs of prohibition were issued to the Chancery and to the High
Court of Admiralty. The jurisdictional war waged by Coke came to a head in the Case of the
Commendams, which concerned the right of the King to fill benefices of the Church of England
as they became vacant.
When James became aware that it was being argued in the Exchequer Court that the King had
no right to fill the benefices, he commanded Coke, by a letter from Bacon his Attorney-General,
to halt proceedings until after he had given the matter his personal consideration.
The case proceeded in defiance of the Royal instruction. Coke drafted his famous letter to
James, which was signed by 12 judges:
"Most dread and most gracious Sovereign [it began]: We, your Majesty's
Justices of the courts of Westminster … hold it our duties to inform your
Majesty that our oath is in these express words: That in case any letters come
unto us contrary to law, that we do nothing by such letters, but certify your
Majesty thereof, and go forth to do the law, notwithstanding the same letters.
We have advisedly considered of the said letter of Mr Attorney [Bacon] and
with one consent do hold the same to be contrary to law, and such as we could
not yield to the same by our oath."31
The King responded by summoning the judges to Whitehall. The King, in the presence of
Ellesmere and 17 of his Privy Councillors, demanded of the judges why they had not:
"checked and bridled 'impudent lawyers' who encroached not only on the
prerogative but 'on all other courts of justice?' The Judges' letter was itself 'a
29
30
31
13
new thing, very undecent and unfit for subjects to disobey the King's
commandment, but most of all to proceed in the meantime and to return to him
a bare certificate.'"32
James then tore the judges' letter up. The 12 judges fell to their knees begging pardon. Seeking
to mollify the King, they humbly confessed that their letter – drafted by Coke – was "wrong in
form". But while Coke would accept that the letter might have been better expressed, he would
not yield on the point of principle. Still on his knees, he faced the King and said: "The stay
required by your Majesty was a delay of justice and therefore contrary to law and the Judges'
oath."33
James described this response as "mere sophistry", and asked Ellesmere for his opinion on the
lawfulness of the stay. The wily Ellesmere was not to be drawn into this crisis between the
King and his judges. In one of English legal history's most oleaginous performances, Ellesmere
responded to the King's question by saying that the King's Attorneys were better qualified than
he to answer.
Bacon seized his chance, and attacked the judges for dereliction of duty. Coke, still on his
knees, turned to Bacon and said34: "I take exception! The King's counsel learned are to plead
before the Judges, and not dispute with them!" Bacon struck back: "A strange exception! By
oath and office, the King's learned counsel are to proceed against judge, peer or House of
Parliament, should the King's prerogative be called in question." When James agreed with
Bacon, Coke gave in. He said: "I will not dispute with your Majesty."35
By now, James had had enough of Coke; and Bacon took the opportunity to ensure the downfall
of his great rival. He drew up a lengthy document entitled "Innovations into the Laws and
Government" recounting Coke's "offences". Seventeen such charges were listed. He sent the
charge sheet to James accompanied by a note:
"I send your Majesty a form of discharge for my Lord Coke from his place of
32
33
34
35
14
Chief Justice of your Bench.
I send also a warrant to the Lord Chancellor for making forth a writ for a new
Chief Justice, leaving a blank for the name to be supplied by your Majesty."36
The King executed the form of discharge, which was sent to Coke in his chambers. The
discharge stated:
"For certain causes now moving us, we will that you shall be no longer our
Chief Justice to hold pleas before us, and we command you that you no longer
interfere in that office, and by virtue of this presence, we at once remove and
exonerate you from the same."
This was in November 1616. Earlier, on 20 June 1616, James himself had sat in the Star
Chamber, something that no monarch since Henry VIII had done.
"'Give thy judgments,' he began, 'to the King, O God, and thy righteousness of
the King's son. … Kings are properly called judges, and judgment properly
belongs to them from God: for Kings sit in the throne of God, and thence all
judgment is derived. It is atheism and blasphemy to dispute what God can do;
so it is presumption and high contempt in a subject to dispute what a King can
do, or say that a King cannot do this or that. … I remember Christ's saying,
'My sheep hear my voice,' and so I assure myself, my people will most willingly
hear the voice of me, their own Shepherd and King."37
This was a pretty grandiose claim. Even at the time, James must have seemed quite unhinged
to his evidence. And the Stuarts did not improve after James I: the Stuart family was living
proof that the Divine Right of Kings is a very bad theory of government. And the spectacle of
the King using the Court of Star Chamber as the forum for the solemn proclamation and
enforcement of his theory of the divine right of the King to concentrate in himself all the powers
36
37
15
of government ensured that the Star Chamber would be abolished just as the political nation
would reject the theory of divine right.
Time would show that, in the struggle for judicial independence from the Crown, Coke had the
better of the argument with Bacon and the King. The constitutional settlement at the end of the
17th Century reformed the position of the judiciary in relation to the Crown. While the judges
continued to be appointed by the Crown, their work became independent of it for all practical
purposes because they no longer continued to serve at the pleasure of the King. Until the
beginning of the reign of William III, the judges were appointed "durante bene placito", i.e.
"during [the King's] pleasure". From the beginning of his reign, the judges were appointed
"quamdiu se bene gesserint", i.e. "for as long as they are of good behaviour". And importantly,
the judge of judicial misbehaviour was not the King but the Parliament.
And so Coke's courage in his battle over the power of the King to control his judges was
ultimately vindicated. It is apparent, though, that his courage was shored up by the alignment
of his self-interest and the institutional interest of the courts on which he sat. It might even be
said, as Macaulay wrote, that "Coke's opposition to the Court … was the effect, not of good
principles, but of a bad temper." 38 But making due allowance for all these things, Coke's
courage is undeniable, and impressive. As Macaulay said39, he was a "pedant, bigot and brute[;]
[but nevertheless] an exception to the maxim ... that those who trample on the helpless are
disposed to cringe to the powerful."
The scholar
In 1615, King James and his son, Charles, went to Trinity College, Cambridge, to watch the
performance of a play written by George Ruggle.
The play was a comedy, the "principal character [of which] was a pompous, silly old Inns of
Court lawyer named Ignoramus" 40 . (This name was borrowed from the legal procedure
whereby grand juries who were unable to find a case worthy to be tried wrote on the indictment
38
39
40
16
Ignoramus [we don't know] 41 . It was from this play that the word "ignoramus" came into
common English usage, meaning an ignorant and foolish person42.)
Ignoramus was intended to parody a local lawyer who had given grief to Cambridge University,
but as soon as the character appeared on stage, dressed ostentatiously in his robes, everyone in
the audience identified him as Edward Coke. He strutted about the stage spouting bad
schoolboy Latin – "Quota est clocka nunc?", he asked when he wanted to know the time –
much to laughter and applause of the King and the aristocratic crowd who were, of course, all
well-versed in Latin.
Coke tried to have the play suppressed, but acknowledged that "Never did anything so hit the
King's humour as this play did."43 He was humiliated. His cherished alma mater had held him
up to public ridicule, and in front of the King. James enjoyed the play so much that he saw it
twice.
Coke's critics teased him for not being able to take a joke (which, of course, was completely
true); and this teasing, which was unlikely to have been harmless fun, added to his ill-humour.
"The Lord Chief Justice," wrote Chamberlain, "both openly at the Kings Bench and divers
other places hath galled and glaunced at schollers with much bitterness."44
While it is no doubt unfair that a public man of Coke's eminence should have been dismissed
in fashionable court circles as a pedantic and posturing fuddy-duddy, the Ignoramus episode
makes a significant point about Coke as a scholar, which is all the stronger because of its
contemporaneity. The point is that his scholarship was so polemical in its tone and partisan in
its content that it was inevitable that he should become a political target for those of his
contemporaries who disagreed with his views. It also became a target for later scholars who
thought that historians should aspire to a degree of objectivity.
Returning to Parliament
41
42
Riddell, "Ignoramus or the War of the Gowns", (1921) 7 American Bar Association Journal 109 at 110.
43
Riddell, "Ignoramus or the War of the Gowns", (1921) 7 American Bar Association Journal 109 at 110.
44
17
When Coke left the Bench he returned to Parliament. Here, he made his greatest contribution
to the English articulation of the relationship between the individual and the State as the author
of the Petition of Right.
The Petition of Right set out in clear and unambiguous terms what Coke regarded as the
pre-existing rights of Englishmen to be free from martial law, billeting of soldiers,
non-Parliamentary taxation and imprisonment without cause. The petition was initially resisted
by the Crown, but the pressure of Parliament eventually proved too great. Coke was active in
securing its passage through the Parliament.
On 7 June 1628, King Charles I capitulated and gave the petition his unqualified assent. The
existence of some fundamental rights of individuals was definitively established; and the scope
of the royal prerogative was substantially reduced.
In the course of his work as a parliamentary spokesman for what would later become
recognisable as the Whig position in politics, Coke became the sponsor of the adulatory view
of Magna Carta, what Edward Jenks described as "The Myth of Magna Carta". Speaking of
Coke's time, Jenks said45:
"It was an age in which historical discoveries were received with credulity, in
which the canons of historical criticism were yet unformulated. Doubtless,
more than one of Coke's contemporaries (John Selden, for example) must have
had a fairly shrewd idea that Coke was mingling his politics with his historical
research. But, for the most part, those competent to criticise Coke's research
were of his way of thinking in politics, and did not feel called upon to quarrel
with their own supporter. Zeal for historical truth is apt to pale before the fiercer
flame of zeal for political victory. It is a tribute to Coke's character and ability,
that he imposed his ingenious but unsound historical doctrines, not only on an
uncritical age, but on succeeding ages which deem themselves critical."
In the course of Coke's promotion of the Petition of Right, and in the second book of his
Institutes written after he left the Bench, he presented Magna Carta to the political nation as a
45
(1904) 4 Independent Review 260 at 272-273.
18
guarantee of individual liberty and Parliamentary government. Coke's work provided the
foundational myth of the English State which inspired the English Whigs. And it was this
inspiration which also drove the political imagination of the American colonists and no doubt
why he is still venerated in the United States today. It was Coke the visionary politician, and
not Coke the judge, whose work was the great dynamic force in the movement to constitutional
monarchy in England over the succeeding centuries.
Lord Sumption has made the point that, before Coke, English ideas of limited government
owed more to Aristotle and Aquinas than to Magna Carta. Until Coke began to trumpet Magna
Carta as an original expression of the special English genius for constitutional government,
Magna Carta had little claim on the English imagination. Lord Sumption makes the telling
point that in Shakespeare's play "King John", there is no mention of the incident at Runnymede
in June 1215.
The Institutes and the Law Reports

In the Institutes, which included Coke on Littleton, Coke attempted an authoritative and
comprehensive statement of the common law. I am confident that none of you has ever read it;
you are none the worse for that. Indeed, you are fortunate not to have had to grapple with Coke's
prose; it is no accident that no one has ever speculated that Coke (rather than Bacon) might
have been the true author of the works of Shakespeare.
Dr McPherson in The Reception of English Law Abroad46 explained that the enormous and
immediate success in America of Blackstone's Commentaries on the Laws of England upon its
publication in 1765 occurred because, in contrast to the "incoherent mass" of Coke on Littleton,
so described by the brilliant John Quincy Adams, Blackstone's Commentaries presented a
comprehensible, clear and elegant statement of the common law.
In Coke's academic work, his overweening concern for his own reputation led him to be less
than candid. In the third volume of his Institutes, which was published after his death, he
famously asserted that: "There is no law to warrant tortures in this land." In truth, although
torture was not authorised under the common law, it was authorised in England under the royal
prerogative when treason and sedition were alleged. So torture did occur pursuant to a warrant
46
McPherson, The Reception of English Law Abroad, (2007) at 485, 242-243.
19
issued in the name of the monarch. Coke's name appears on seven warrants authorising the
torture of Catholics and Puritans47.
One of Coke's more important scholarly contributions was the establishment of the Law
Reports. He produced the first full set of law reports in England. It was not so much the quality
of the reports themselves that was important; but the idea that it was essential then, as it is now,
to the common law as a system founded upon the judicial observance of precedent, that
precedents should be collected and made available to the profession and the courts for
application to like cases.
The importance of this aspect of Coke's contribution to the common law cannot be overstated.
A system of “stare decisis” requires the systematic collection of precedents. Bacon himself
said that before Coke's Reports "the law had been like a ship without ballast". To draw further
upon Bacon's nautical metaphor to illustrate the power of the precedents Coke collected, it is
noteworthy that a partial set of Coke's Reports travelled to America on the Mayflower48.
Later life
He spent the later decades of his life at Stoke House working principally on his Reports,
updating his commentaries on Littleton as part of his on-going work on the Institutes. He died
in late 1634. By this time, he and his wife had effectively separated.
Judicial legacy?
One aspect of Coke's judicial legacy warrants particular attention. It might fairly be said that
judicial activism, that supposedly modern phenomenon which so excites some commentators
(who, curiously, also tend to be admirers of Sir Edward Coke), actually reached its apogee in
the early 17th Century when Coke made a claim for judicial power that was apt to exalt the
judiciary over the legislature as the principal voice of sovereign power.
Most famously, in Dr Bonham's Case49, Coke wrote:
47
Spigelman, "Lions in conflict: Ellesmere, Bacon and Coke – the years of Elizabeth", (2007) 28 Australian
Bar Review 254 at 276.
48
Thorne, "Sir Edward Coke: 1552-1952", The Selden Society Lectures 1952-2001, (2003) 3 at 3.
49
(1610) 8 Co Rep 113b at 118a [77 ER 646 at 652].
20
"[I]n 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 impossible to be performed,
the common law will controul it, and adjudge such Act to be void".
Coke was here speaking in support of a view with deep roots in natural law thinking, the idea
that the exposition of the law was a matter for learned men, steeped in the traditions of their
profession, and for them only. That mindset was very much at odds with the radical Protestant
view that individuals can find their way to the truth for themselves without the mediation of a
priestly caste.
When Coke spoke of the "common law" as an abstraction, the practical reality, well understood
by his contemporaries, as his exchanges with the King show, was that he was promoting the
supremacy of the judges over the King in Parliament.
At this historic crossroads, Coke's great rival, Francis Bacon, took the road that led to
Parliamentary supremacy. In the course of argument in Chudleigh's Case in which, fittingly,
Bacon and Coke were opposed as counsel, Bacon argued that the judges' authority over the
laws of England was merely "to expound them faithfully and apply them properly" 50.
The English civil wars of the 17th Century established, in the most emphatic way, that Sir
Francis Bacon had the better of this argument. The claim of the Parliament to be the sole organ
of government with authority to say what the law should be was established in England
following the constitutional settlement at the end of the 17th Century. After that time, any claim
of the judiciary for the larger share of sovereign lawmaking power remained dormant, until the
founding of the United States, shortly after which the great judgment of Marshall CJ in
Marbury v Madison51 established that the Supreme Court of the United States could invalidate
Acts of Congress held by the judges to be inconsistent with the Constitution.
Coke's observations in Dr Bonham's Case might be thought to have foreshadowed the strong
form of judicial review established by the US Supreme Court in Marbury v Madison; but to the
50
Holdsworth, A History of English Law, 3rd ed (1945), vol 4 at 186.
51
5 US 137 (1803).
21
disappointment of those who would claim Coke as the originator of judicial review of
legislation, it is noteworthy that Dr Bonham's Case was not even mentioned in the celebrated
judgment of Marshall CJ in Marbury v Madison.
Marshall's decision in Marbury v Madison was founded squarely on the eminently practical
ground that interpreting written documents is simply what judges do. It is what they had always
done within the common law tradition. Constitutional adjudication is an exercise in interpreting
the effect of the Constitution as a written document; and that exercise is of a piece with the
work which characterises the work of judges in interpreting deeds and wills. For Marshall,
there was no occasion to seek more direct authority.
Marshall's insight, that "it is emphatically the province and duty of the judicial department to
say what the law is"52 reflected the practical experience of practising lawyers that declaring
what the law is is a characteristic function of judges in the common law tradition. This practical
and institutional approach informed by the separation of powers effected by the US
Constitution is, of course, very different from the doctrinaire and highly authoritarian approach
of Coke in Dr Bonham's Case. The pragmatic approach of the common law reflects in Marbury
v Madison is embodied in Articles 8 and 11 of the Basic Law which confer the power of
constitutional view on the courts of the Hong Kong Special Administrative Region.
Conclusion
The story of the development of the common law is not a story of the work of judicial heroes
but rather, as exemplified by the evolution of the adversarial system and the criminal law, of a
practical process of iteration, from generation to generation of lawyers of the bench and the
profession, whereby the common law moved, slowly and often tentatively, to meet the nation's
needs in an ongoing process of self-definition.
In the turbulent age in which Coke made his mark in the history of ideas, he was at the very
centre of some of the most dramatic moments in England's history. Medieval and modernising
ideas of law and government swirled and clashed in the dangerous currents of Elizabethan and
52
Marbury v Madison 5 US 137 at 177 (1803).
22
Stuart politics. Coke's life and work were shaped by the violent tensions between conservative
medieval ideas of natural law and the central importance of the customs of the realm, the radical
claims of a divinely ordained monarchy to absolute power, and emerging notions of nationhood
and sovereignty dependent upon the consent of the governed which would, in due course, find
fuller, and very different, expressions in Hobbes' Leviathan published in 1651, and in Locke's
Second Treatise on Government published in 1689.
It would be simplistic and wrong to see in Coke's work the vindication of the modern mind
over the medieval: he was too inconsistent to be neatly compartmentalised. His inconsistencies
were certainly such as to throw into doubt, both the veneration of Coke as "a hero judge", and
the very notion that the common law can be sensibly understood as the product of hero judges.
Coke’s career was itself an expression of the contradictions of which I have spoken. He did
not resolve these contradictions; they were resolved by others. The common law, whether
considered as a body of judges made precedents or as an approach to adjudication, is not the
creation of Coke or any other hero judge. Rather, the doctrine of precedent, stare decisis, has
served to ensure that the development of the common law is distinctly not the creation of hero
judges, but the work of more modest minds, who as a matter of a deeply ingrained professional
ethos recognise the paramount law-making role of the legislature subject to a constitution or
Basic Law. It may be fair to say that the common law could not afford more than one Sir
Edward Coke.
In this regard, it is fitting to leave the last word to the long-suffering Lady Hatton, his wife of
36 years. Upon Coke’s death at the age of 82, she said: "We shall never see his like again,
praise be to God."53
53
Simpson, "Review of Sir Edward Coke and the Grievances of the Commonwealth by Stephen D White",
(1982) 98 Law Quarterly Review 174 at 174.

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"There is no overestimating the effect of ... burning missionary

"Coke … discovered a mistake in the written declaration of [Cromwell's]

Speaker of the House of Commons

Chief Justice of the Common Pleas

'The common law,' Coke interjected, 'protecteth the King.'

Coke's own report24 of the incident picks up the story:

Chief Justice of the King's Bench

Chief Justice of your Bench.

The Institutes and the Law Reports

Most famously, in Dr Bonham's Case49, Coke wrote:

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