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victory of the Parliament meant the victory of a modernized common law, competent to guide the activities of a modern state. Clearly a man whose work has had so large an effect upon the whole future course of our legal history demands and deserves a far more detailed treatment than any of his contemporaries.

II

EDWARD COKE, AND THE RELATION OF THE COMMON LAW TO ITS RIVALS

We have seen that during the Tudor period the work of making England a territorial state of the modern type had been accomplished, partly by the legislature, partly by newly created or newly organized courts and councils, and partly by the common law courts. During the greater part of this period these courts and councils had worked harmoniously together. But, with the natural expansion of their respective jurisdictions, conflicts between them had become more frequent. The common law courts were in the habit of attacking rival courts which, in their opinion, had exceeded their jurisdiction. On the other hand, those who sued at common law found themselves imprisoned, and compelled to abandon their suits or even the fruits of judgments obtained; while those who executed the process of the common law were so terrified that they dare not execute laws or writs. In the paper drawn up by Anderson C.J., in 1591, stating the law as to commitments by the Council and complaining of these attacks upon the common law,2 it is noted that, after it had been presented, "more quietness followed in the causes mentioned than before." 3

"1

But these conflicts became more bitter when the restraining influence of Elizabeth was removed; and, in the early years of the seventeenth century, it soon appeared that the question of the relation to one another of these various courts administering various kinds of law within the English state, urgently demanded a settlement. We shall see that this question came to be merged in that larger question as to the whereabouts of the sovereign power in the state, which underlay the various causes of conflict between the king and his Parliament. The newly created or newly organized courts and councils naturally magnified the

1 S.P. Dom. 1595-1597 335, cclxi 69.

2 Vol. i 509; App. I.; vol. vi c. 6.

3" Noted that all the judges and barons subscribed this and delivered copies to the Lord Chancellor and Treasurer, 34 Eliza., after which more quietness followed in the causes mentioned than before," S.P. Dom. 1595-1597 335, cclxi 69; 1 And. 298, printed in App. I. (2).

royal prerogative on which they leaned and to which they owed their authority. They therefore gravitated to the royalist view that in the last resort the prerogative was the sovereign power in the state.1 On the other hand, the common law favoured the mediæval idea that in the state the law was supreme, and that the prerogative was therefore limited by it. The common lawyers therefore gravitated to the parliamentary view that the prerogative was subject to definite legal limitations, and that ministers who disregarded those limitations were criminally or civilly responsible to the law; while the parliamentary leaders naturally held that the law to which they were responsible must be that common law, in which alone they could find legal justification for their political views. But the additions made by the modern cases and statutes to the medieval principles on which the common law was founded, made it often obscure and sometimes irrational. Was it capable, it might fairly be asked, of supplying the principles needed to guide the development of the public and private law of a modern state? The common lawyers maintained that their common law was all-sufficient for this purpose. Though the growth of an independent system of equity, the slow development of a reasonable system of commercial and maritime law, and the scantiness (even at the present day) of some departments of our family law, show that, to some extent, they exaggerated the capacity of their system; the history of English public law in the seventeenth century, and the growth of new branches of private law in the eighteenth and nineteenth centuries, have justified their faith. That the common law was given the chance of justifying the faith of those who believed in its capacity is largely due to the judicial, political, and literary career of Edward Coke.

Coke's career as a judge, and as a leader of the parliamentary opposition, was one of the most important factors in securing the supremacy of the common law, not only over the many rival bodies of law which had sprung up in the sixteenth century, but also over all bodies and persons in the state, save only the High Court of Parliament. His writings form the starting-point of the modern as distinct from the medieval common law, because in them mediæval rules are so harmonized with the modern additions, that they fitted the common law to guide the future legal develop

1 Thus Bacon told the king in 1615 (Spedding, Letters and Life v 236) that the writ de non procedendo rage inconsulto, below 439, is a means by which cases may be drawn from the ordinary courts and sent for determination to the chancellor, who is "ever a principal counsellor and instrument of monarchy, of immediate dependence upon the king: and therefore like to be a safe and tender guardian of the regal rights"; cp. Gardiner, History of England iii 2.

2 Vol. iv 188-189.

ment, not only of England, but also of the many dominions which Englishmen were to found beyond the seas. Therefore if we would understand the place which the common law holds in our modern English state, and the modern history of its doctrines, we must know something of the man whose character, career, and writings have had so large an influence upon the ascertainment of its constitutional position, and upon the development of its principles.

In the first place, I shall say something of his character and career. In the second place, I shall describe his writings, and endeavour to estimate their merits and defects; and, in conclusion, I shall attempt to summarize shortly his influence on the development of English law in the succeeding centuries.

Coke's Career and Character1

Coke's career falls into three well marked periods. The first extends to his appointment to the bench in 1606, the second to his dismissal from the bench in 1616, and the third to his death in 1634.

Coke was born on February 1, 1551-1552. He was educated at Trinity College, Cambridge; and throughout his life he never ceased to be an ardent advocate of a University education,2 and an enthusiastic admirer of the excellencies of his University.3 On January 21, 1571, he became a member of Clifford's Inn, from whence in the following year (April 24, 1572) he proceeded to the Inner Temple. He was called to the bar on April 20, 1578, and soon acquired a large practice. He was fortunate in attracting the attention of Burghley, whose influence, aided by his own industry and learning, helped him to enter and to rise

1 The principal authorities are Coke's own writings; Spedding, Letters and Life of Bacon; Bacon's professional works, vol. vii of Spedding's Ed.; the State Papers Domestic; Gardiner, History of England; Parliamentary History; Rushworth vol. i; G. P. Macdonell's Life in the Dict. Nat. Biog.; Foss, Lives of the Judges. The most authentic record of the dates in Coke's life is to be found in Harl. MS. 6687 which contains, besides a copy of Littleton's Tenures much annotated, many personal notes of his family history; these notes are printed in Coll. Top. et Gen. vi 108-122; and cp. Hist. MSS. Com. 9th Rep. App. Pt. II. 372

no. 727.

2 The student, he says, should come from one of the Universities to the study of the common law, as there he learns "the liberal arts and especially Logick: for that teacheth a man, not only by just argument to conclude the matter in question, but to discern between truth and falsehood, and to use a good method in his study,' Co. Litt. 235b.

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See Bonham's Case (1610) 8 Co. Rep. at f. 116b, where Coke went out of his way to sing the praises of Oxford and Cambridge; "no comparison was to be made between that private college (The College of Physicians) and either of the Universities of Cambridge and Oxford, no more than between the father and his children, or between the fountain and the small rivers that descend from it; the university is alma mater from whose breasts those of that private college have sucked all their science and knowledge."

rapidly in the service of the state. On April 2, 1586, he was made recorder of Norwich; and on October 14, 1591, recorder of London. On June 11, 1592, he became solicitor-general; on February 19, 1592-1593, speaker of the House of Commons; and from March 24, 1593-1594-June 30, 1606, he held the post of attorney-general. By the year 1601 he had become sufficiently distinguished and wealthy to entertain Elizabeth at his house at Stoke Pogis, and to present her with jewels to the value of £1000.1

3

It was during this period that he was accumulating the material for those books which were destined to leave so deep a mark upon the common law; and it was towards its close that the first volumes of his reports were published.2 They made it clear that, in an age of learned lawyers, their author was easily pre-eminent. Nor is the cause of his pre-eminence far to seek. His vast capacity for work, his zealous and positive temperament, his narrow and powerful intellect, were devoted exclusively to the study and practice of the law. He was, as all great lawyers must be, a student of human nature; and he was neither devoid of social gifts, nor wholly unread in classical literature. But all his gifts and all his reading were pressed into the service of the common law. He was, it is true, keen in the pursuit of wealth and power; 6 but these tastes as yet assorted well with his keenness in pursuit of legal knowledge. The time had not yet come when he was compelled to choose between his love of power and his love for the law. When it came he did not hesitate in his choice.

As solicitor and attorney-general he was an officer of state as well as a lawyer; and the fact that he had been an officer of state in the latter years of Elizabeth's reign, left a lasting impression upon his character. Hatred of Roman Catholics, reverence for the crown as the visible embodiment of the state, brutality to prisoners charged with treason or sedition, were

Chamberlain's Letters (Camd. Soc.) 118-" She made a step to Mr. Atturney's at Stoke, where she was most sumptuously entertained and presented with jewells and other gifts to the value of a thousand or twelve hundred pounds."

2 Below 461.

"Scribe sapientiam tempore vacuitatis tuæ saith Solomon. And yet he that at length by these means shall attain to be learned, when he shall leave them off quite for his gain or his ease, soon shall he lose a great part of his learning: Therefore I allow not to the student any discontinuance at all, for he shall lose more in a month than he shall recover in many," I Co. Rep. Pref.-throughout his life Coke practised what he here preaches.

4 Below 434.

5 Below 458-459.

"His first wife Bridget Paston-of the family of the Paston letters-brought him £30,000; and he constantly added to it by the careful manner in which he invested his large professional gains, see Fuller, Worthies, Norfolk 250, cited Dict. Nat. Biog.

characteristics common to many Englishmen of this period; and they were usually strongly marked in those who, by reason of their official positions in the state, knew the dangers to which both queen and state were constantly exposed. But in Coke they appeared in an exaggerated form, and manifested themselves in so ferocious a treatment of the prisoners which he was called upon to prosecute, that even his contemporaries were occasionally disgusted. His conduct at Raleigh's trial is a permanent stain on his memory. There is no doubt too that, at this period of his career, his zeal for queen and state led him to consent to and even to defend acts which in his later days he denounced as illegal. We have seen that his views as to the legality of torture changed, when the development of the constitutional controversies of the seventeenth century led him to deny the existence of that extraordinary discretionary power of the crown which he had once admitted. For the same reason he changed his views upon such topics of public law as the proper sphere of royal proclamations,3 the validity of benevolences1 and impositions, the legality of commitments by the Council, the legality of asking the judges to give extra-judicial opinions

2

6

1(1603) 2 S.T. 1; see the passages at pp. 25, 26, cited by Stephen, H.C.L. i 333 n. 2; as Stephen says "the extreme weakness of the evidence was made up for by the rancorous ferocity of Coke, who reviled and insulted Raleigh in a manner never imitated, so far as I know, before or since in any English court of justice, except perhaps in those in which Jefferies presided"; in the course of the trial Cecil interposed to check Coke-" Be not so impatient, good Mr. Attorney, give him leave to speak," whereupon Coke told him that he was encouraging traitors, and "sat down in a chafe and would speak no more, until the Commissioners urged and entreated him.”

2 Above 185 nn. 5 and 10.

See his notes on the Prerogative in S.P. Dom. 1598-1601 521, cclxxvi 81Among other things the Queen may levy rates for the repair of bridges, etc., impose restraints on the landing of goods for the better collection of the customs, and prohibit things hurtful to the state"; cp. these views with those expressed in the Case of Proclamations (1611) 12 Co. Rep. 74; vol. iv 296-297; below 433.

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4 In the case against Oliver St. John in the Star Chamber in 1614 for refusing to contribute to, and for denying the right of the king to ask for a benevolence, Coke, though he had at first denied the legality of such a request, upheld it, on the ground that there was no law to prevent the king from asking for a free gift, and that the statute 1 Richard III. c. 2 only applied to exactions, Spedding, Letters and Life of Bacon v 146; Gardiner, History of England ii 266; cp. 12 Co. Rep. 119, where it is said that a similar distinction was drawn by all the justices and barons; but in 1628 he denounced "all loans demanded against the will of the subject,' Rushworth vol. ii Pt. I. 497 ;-he had come to see that all these loans and benevolences were cloaks for unparliamentary taxation.

5 Among Coke's papers seized in 1634 there was found an argument in favour of impositions, S.P. Dom. 1634 351, cclxxviii 35; this must have been composed before 1610, as at that date he had argued against them, ibid 1607-1610 621, lv 52; in 1614, when the Lords asked the advice of the judges on the bill against impositions proposed by the Commons, they declined to advise, as they might be called on to decide the matter judicially, Gardiner, op. cit. ii 241, 242; this refusal, as Spedding says (Bacon's Letters and Life v 59), showed the Lords that Coke would not defend the right to impose; on the whole question of impositions see vol. iv 335-338; vol vi c. 6.

6 Below 450.

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