# Dictionary of National Biography, 1885-1900/Coke, Edward

​COKE, Sir EDWARD (1552–1634), judge and law writer, commonly called Lord Coke (or Cooke as the name was pronounced and frequently written in his own day), 'the name of pre-eminence which he hath obtained in Westminster Hall' (Barrington, Observations, 4th ed. 127), came of an old Norfolk family, whose pedigree is traced from a William Coke of Doddington, or Didlington, mentioned in a deed of 1206 (Blomefield, Norfolk, v. 807; Collins, Peerage, 3rd ed. iii. 678; Hasted, Kent, i. 288 n.) His father, whom he describes as 'a gentleman of Lincolne's Inn,' was lord of the manor of Mileham, where Coke, the only son of a family of eight, was born on 1 Feb. 1551-2. He was educated at the Norwich free school, leaving which in September 1567 he was admitted into Trinity College, Cambridge, and afterwards proceeded by grace master of arts (Holkham MS. 727). Fuller mentions that Whitgift was his tutor, but this is probably a misstatement of the fact that Whitgift about this time became master of Trinity. After three years and a half spent at Cambridge, Coke in 1571 went to reside in Clifford's Inn, one of the inns of chancery dependent on the Inner Temple, and in the following year (24 April) he was 'entered,' as Fuller puts it, 'a studient of the municipal law in the Inner Temple.' He was called to the bar on 20 April 1578, after a period of study somewhat shorter than was then customary. Already he had gained a considerable reputation as a lawyer, and practice came to him quickly. 'The first occasion of his rise,' we are told by Lloyd, 'was his stating of the cook's case of the Temple so exactly that all the house who were puzzled with it admired him; and his pleading it so that the whole bench took notice of him' (State Worthies, ii. 109. What the 'cook's case' was does not appear; Lord Campbell gives no authority for his more detailed account, Chief Justices, i. 243). In 1579 Coke was counsel for the defendant in Cromwell v. Denny (4 Rep. 13), an action 'de scandalis magnatum' for words uttered by Denny, a Norfolk vicar, imputing sedition to the Lord Cromwell; and two years afterwards he was engaged in the famous Shelley's case (1 Rep. 94), which has ever since remained one of the leading cases in the law of real property. The year after his call he was appointed reader of Lyon's Inn, a post generally held by an utter barrister of ten or twelve years' standing (Stowe, 6th ed. i. 125), and in 1584 he was retained as counsel by the corporation of Ipswich, with a yearly fee of five marks (Hist. MSS. Comm. 9th Rep. 255 a). In 1582 he married Bridget Paston, a descendant of the family of the 'Paston Letters' (Fenn, Paston Letters, ii. 158; Extinct Baronetages, p. 402), who brought him a fortune of 30,000l., besides considerable property in land. Throughout a long life Coke steadily added to his possessions. 'Beginning on a good bottome left him by his father,' says Fuller, 'marrying a wife of extraordinary wealth, having at the first great and gainful practice, afterwards many and profitable offices, being provident to chuse good pennyworths in purchases, leading a thrifty life, living to a great age, during flourishing and peaceable times (born as much after the persecution under Queen Mary, as dying before our civil wars), no wonder if he advanced a fair estate, so that all his sons might seem elder brethren by the large possessions left unto them' (Worthies, Norfolk, p. 250). His advancement in public life was very rapid, owing at the outset in a great measure to the powerful assistance of Burghley. The following is a list of the chief offices held by him at various times before his fall: recorder of Coventry, 1585; recorder of Norwich, 1586; bencher of the Inner Temple, 1590; solicitor-general, reader of the Inner Temple, and recorder of London, 1592; speaker of the House of Commons, 1592-3; attorney-general, 1593-4; treasurer of the Inner Temple, 1596; chief justice of the common pleas, 1606; chief ​justice of the king's bench, 1613; and high steward of the university of Cambridge, 1614. His readings at the Inner Temple were cut short by the plague of 1592. He had delivered five of his lectures on the Statute of Uses when he was forced to leave London for his house at Huntingfield in Suffolk, nine benchers, forty barristers, and other members of the inn bearing him company as far as Romford. He sat in the parliament of 1589 as one of the burgesses of Aldborough in Suffolk. In 1592 he was returned as one of the knights of the county of Norfolk ; 'et ista electio,' as he mentions in his notes, 'fuit libera et spontanea, nullo contradicente et sine ambitu, seu aliqua requisitione ex parte mea.' In the following year he was fchosen speaker, an office invariably filled in Elizabeth's reign by a lawyer. The struggle between the queen and the parliament as to the right of the latter to meddle with eccleliastical affairs was then at its height, and, standing between them, Coke occupied a very delicate position, in which he showed 'much subtlety in avoiding a conflict. On the occasion of a bill relating to abuses practised by the court of high commission, whose powers were being used not against papists but against puritans, he dexterously succeeded in putting off discussion till he received the queen s message prohibiting the house from entering on such matters a message which he conveyed to them in courtly and submissive language, and against which no protest was raised (Parl. Hist. i. 878, 888; Spedding, Bacon, i. 229). His appointment as attorney-general in 1593 led to the first collision between him and Bacon, whose claims to the office were strongly pressed by Essex. Bacon failed even in becoming solicitor-general, owing, as he believed, to Coke's interference (see Bacon's Letter to Coke, Spedding, iii. 4) ; and in fact no solicitor-general was appointed till 1595, Coke performing the duties of both offices. His wife died on 27 June 1598, and on 6 Nov. of the same year he married Lady Elizabeth Hatton, granddaughter of Burghley. 'The seventh of this moneth,' writes Chamberlain, 'the quenes atturney married the Lady Hatton, to the great admiration of all men, that after so many large and likely offers she shold decline to a man of his qualitie, and the will not beleve it was without a misterie' (Letters, Camden Soc. p. 29, and see p. 63). The fact that Bacon, again warmly supported by Essex, was also a suitor for the lady's hand, may explain Coke's unseemly haste. The marriage ceremony, moreover, was itself irregular, being celebrated in a private house, without banns or license ; Coke and his bride and other persons present were prosecuted in the archbishop's court, for 'they had all of them fallen under the greater excommunication and the consequent penalties' (Collier, Eccl. Hist. ii. 662) ; but on making submission they were absolved. (Most of Coke's biographers say that the irregularity was due to the fact that Whitgift had just before issued a circular forbidding private marriages ; but this was no new provision of church law. The circular, in fact, is dated 19 Nov. : Whitgift's Life in Stype, Works, xvii. 400 ; while the marriage was either on the 6th, Coke's own date, or on the 7th, Chamberlain's date. The irregularity of Coke's marriage may very well have called forth the circular.) The marriage thus ominously celebrated proved one of the plagues of Coke's life, Lady Hatton's fortune and her own character proving fruitful causes of quarrel in his later years. Meanwhile his great learning and his energy were gaining for him a brilliant position. 'There is a common tradition ... in Westminster Hall,' says Barrington, 'that Sir Edward Coke's gains at the latter end of this century equalled those of a modern attorney-general' (Observations, 4th ed. 508). Coke had become so great a man that in 1601 he entertained Elizabeth in his house at Stoke Pogis the ' ancient pile ' in Gray's ' Long Story ' and is said to have presented her ' with jewels and other gifts to the value of a thousand or twelve hundred pound ' (Chamberlain, Camden Soc. p. 118). From the time of his call to the bar he had taken careful notes of cases which he heard argued, and in 1600 he began their publication with the first volume of his 'Reports,' afterwards bringing out the other ten volumes (vols. xii. and xiii. were not published in his lifetime) at various dates up to 1615. In the same year there began a series of great state prosecutions, in which Coke, first as attorney-general, and then as judge, was a chief actor. At the bar he conducted the prosecution in the trials of the Earls of Essex and Southampton in 1600 (1 St. Tr. 1333), of Sir Walter Raleigh in 1603 (2 ib. 1), and of the gunpowder plotters in 1605 (2 ib. 159 et seq.) In all of these he exhibited a spirit of rancour, descending even to brutality, for which no one has attempted a defence, his biographers one and all agreeing that his conduct towards Raleigh was simply infamous. 'Thy Machiavelian and devilish policy,' 'thou hast a Spanish heart, and thyself art a spider of hell,' 'I will now make it appear to the world that there never lived a viler viper upon the face of the earth than thou'—these ​are some of the flowers of his speech. 'The extreme weakness of the evidence,' says Sir James Stephen, '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 Jeffreys presided' (Hist. of Crim. Law, i. 333). But there seems no reason to doubt that, with his excited ideas about Spain and the Jesuits, he honestly believed in Raleigh's guilt.
On the death of Gawdy in 1606 Coke was 'made chief justice of the common pleas, and his new office brought into light a new side of his character. Hitherto he had been engaged in the pushing of his own fortunes and in a strenuous defence of the crown ; he was now to enter on an equally strenuous and more courageous defence of the law. He had immediately to face a determined attempt on the part of the church to shake off the control of the courts of common law. In 1605 Archbishop Bancroft in the name of the whole clergy had presented to the Star-chamber his famous articles of complaint, styled in the judges' answer, after a statute of Edward II, articuli cleri, concerning the issue of prohibitions against the decrees of the ecclesiastical courts, arguing that these should have coordinate jurisdiction with the secular courts, the powers of both being held by delegation from the king. The judges answered the clerical arguments one by one, and treated them with very little ceremony : in issuing prohibitions they had acted strictly according to law, and till the law was altered by parliament they could not alter their mode of administering it (see 2 Inst. 601 ; 2 St. Tr. 131). James was flattered by the absolutist doctrines of the clergy, which were still more manifest in the unpublished canons of the convocation of 1606, and, eager to carry into practice his exaggerated notions of the prerogative, he gave his strong support to the archbishop. The controversy with the judges was but one phase of the struggle for ecclesiastical independence which tills so large a part of the parliamentary debates of the period. In the House of Commons, constituted as it was, the attempt to secure legislative independence was hopeless ; but with a less resolute opponent than Coke the claim of the ecclesiastical courts to judicial independence might very well have succeeded for a time Coke's attitude was no doubt mainly that of a jealous lawyer, but with a man like James his technicalities were more likely to prevail than any broad statement of policy. Still something more than loyal pride a real sense of the danger of extending the royal and ecclesiastical authority is needed to explain the energy with which to the end of his life he continued the struggle. But his mind habitually turned to the narrower view. In 1607, when Bancroft renewed his protest against prohibitions, the king called the judges together, and told them that, as he was informed, he might take what causes he pleased from the judges, who were but his delegates, and determine them himself. Coke, with the clear consent of all his colleagues, told him that it was not law. 'Nothing,' it has been said, 'can be more pedantic, nothing more artificial, nothing more unhistorical, than the reasoning ' which he employed. ' But no achievement of sound argument, no stroke of enlightened statesmanship, ever established a rule more essential to the very existence of the constitution than the principle enforced by the obstinacy and the fallacies of the great chief justice' (Dicey, Law of the Constitution, 18). The interview ended with a subtlety of which Coke was very fond. '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, they 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 cognisance of it ; and 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 in peace ; with which the king was greatly offended, and said that then he should be under the 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' (12 Rep. 64, 65 ; and see Lodge, iii. 364). Bancroft, sure of the king's support, continued his efforts. In February 1609 another angry scene took place at Whitehall between the king and Coke, who with some other judges had been summoned to discuss the question of prohibitions, when the king lost his temper and Coke is said to have fallen grovelling on the ground begging for mercy (Gardiner, ii. 41).
In 1611 Coke successfully opposed, on the bench and in the council, the claim made by Abbot, the new archbishop, in Chauncy's case, that the court of high commission had full power to fine and imprison in all ecclesiastical ​causes (12 Rep. 82, 84). Next year it was hoped to conciliate him by placing him with six other judges on the commission, which, as they were vaguely assured, had been reformed in divers points. But he refused to sit, saying that he was not acquainted with the new commission, which for aught he knew might be against law. The commission was solemnly read, and was found to be in several respects illegal ; and then all the judges, some of whom before had inclined to accept the position, 'rejoiced that they did not sit by force of it' (12 Rep. 88. As Gardiner points out, ' Bancroft ' in Coke's report should be 'Abbot').
In other ways Coke rendered great service in resisting James's exaggerations of the prerogative. Bate's case, which raised the question of the king's right to put impositions on imported merchandise, did not come before him judicially, but it was reviewed by him in a conference with Chief-justice Popham. Probably the king had sought from them a confirmation of the judgment of the exchequer ; but, if this was the case, he was disappointed. They do not seem to have questioned the actual decision, but they gave no support to Fleming's doctrine that in these matters the king's discretion was unconfined. 'The king,' they resolved, 'cannot at his pleasure put any imposition upon any merchandise to be imported to this kingdom, or exported, unless it be for advancement of trade and traffick, which is the life of every island, pro bono publico' (12 Rep. 33). In his 'Institutes ' he condemned the decision without any qualification (2 Inst. 57). In 1610 a danger not less grave was met still more decidedly. The House of Commons having presented an address to the king, in which they called attention to the increased frequency of proclamations affecting contrary to law men's liberties and property, Coke was sent for to attend the council, and two cases were submitted to him in the hope that he would give legal countenance to the king's proceedings. He was asked whether the king might by proclamation prohibit, first the erection of new buildings in and about London, and secondly the making of starch from wheat. The statute of proclamations having been repealed, this was a claim that by the common law the king might make new laws otherwise than by act of parliament. Coke was strongly pressed by the chancellor and by the others present, including Bacon, to maintain the king's prerogative, but he declined to give an opinion without consulting with the other judges. In the conference which followed it was resolved that the king cannot by proclamation create an offence which was not an offence before ; that the king's proclamation forms no part of the law ; and that he hath no prerogative but that which the law of the land allows him. ' And after this resolution no proclamation imposing fine and imprisonment was afterwards made.' Later instances, however, are common in the seventeenth century; but this conference finally settled the question of legality (12 Rep. 75. It is curious that in Coke's report, while the statute of proclamations is referred to, no mention is made of the repealing statute, 1 Edw. VI, c. 12).
Among the other famous cases of this period was that of the post-nati, involving the question whether or not persons born in Scotland after the union were aliens in England. The judges were consulted on the general question, and the point was afterwards specifically raised in Calvin's case. On both occasions Coke, with the majority of the judges, decided in favour of the view which so alarmed the House of Commons, that a post-natus, being still under allegiance to King James, was a natural-born subject and no alien (7 Rep. I; 2 St. Tr. 559). Lord Campbell, it may be noted, has expressed an opinion that the decision was erroneous (Chief Justices, i. 269. See Isaacson v. Durant, 17 Q.B.D. 54). Among the things observable in this case Coke records ' that no commandment or message, by word or writing, was sent or delivered from any whatsoever to any of the judges ; which I remember for that it is honourable for the state, and consonant to the laws and statutes of this realm ' (7 Rep. 28 a).
Fleming, the chief justice of the king's bench, died in August 1613. Partly to secure his own advancement, partly to remove Coke to a position in which he would come less seldom into conflict with the king and his advisers, Bacon proposed that Coke should be transferred to the vacant place. The income was less than that of the other chief-justiceship, but the dignity was higher (see, however, Somers Tracts, ii. 382, where Coke's annual fee as chief justice of the king's bench is given as 224l. 19s. 9d., with 33l. 6s. 8d. for circuits; while the chief justice of the common pleas had only 161l. 13s. 1d., and 33l. 6s. 8d.) 'My lord Coke,' said Bacon, laying his reasons before the king, 'will think himself near a privy councillor's place, and thereupon turn obsequious. . . . Besides the remove of my lord Coke to a place of less profit (though it be with his will) yet will be thought abroad a kind of discipline to him for opposing himself in the king's causes, the example whereof will contain others in more awe' (Spedding, iv. 381). The advice was ​followed, and much against his will Coke was made chief justice of the king's bench. 'He parted dolefully,' says Chamberlain, 'from the common pleas, not only weeping himself, but followed with the tears of all that bench, and most of the officers of that court' (S. P. Dom. lxxiv. 89). Ben Jonson, in an epigram written about this date, pays an eloquent tribute to his character as a judge, and such evidence as we possess confirms the praise of his integrity and public spirit (Underwoods, lxv.) Meeting Bacon soon after, Coke accosted him, very much as Lord Campbell did Bethell on a similar occasion : 'Mr. Attorney ! this is all your doing ; it is you that have made this great stir.' 'Ah, my lord,' replied Bacon, 'your lordship all this while hath grown in breadth ; you must needs grow in height, else you will prove a monster' (Gardiner, ii. 209, from Bacon's Apophthegms). So little weight, however, did the king attach to Bacon's first reason, that ten days later Coke was made a privy councillor. Had he become obsequious, or even conciliatory, he would certainly have risen still higher ; but he remained as rigid as ever, and he was soon in trouble. His attitude on the subject of benevolences might seem to show a more yielding disposition ; but in his opinion, given in the Star-chamber, he was careful to insist that a benevolence was legal, not as a compulsory tax, but as a free-will offering (2 St. Tr. 904 ; 12 Rep. 119. A note dated 8 Nov. 1614, in Coke's handwriting, on the precedents of benevolences, contains additional references, Lansd. MS. 160, fol. 118). As his own contribution he gave 200l.
In Peacham's case [see Bacon, Francis] he made an unsuccessful attempt to check the practice of consulting the judges extrajudicially, and his conduct in the matter has been censured as obstructive. He had certainly to retreat from his first position, 'that such auricular taking of opinions was not according to the custom of the realm,' qualifying it afterwards by saying that ' this auricular taking of opinions, single and apart, was new and dangerous ; 'and by agreeing' at last to give an opinion he admitted that in strictness his objection could not be sustained. But in substance he was right. The practice against which he argued was not new. Ideas, in Coke's time imdeveloped, of the necessity of keeping distinct the judicial function of government, have confirmed his opinion that the practice is dangerous. In objecting, moreover, to advise on the case without consulting his fellow-judges, he was making no claim that the judges should be treated as one whole body or class ; he was making a natural protest against a compulsory separation of himself from the others, in which he saw a clear attempt to force them to give an opinion favourable to the prosecution. That was undoubtedly the king's intention, and the device which he adopted is the strongest evidence of the great influence possessed by Coke (see Spedding, v. 114; and Gardiner, ii. 279. Hallam's statement, Const. Hist. ch. vi., that the other three judges were 'tampered with,' is far too strong).
A more serious conflict arose with regard to the jurisdiction of the court of chancery. In 1615 the king had remonstrated with Coke and the chancellor about the disgraceful disputes which took place on the subject, bidding them be moderate and refer all difficult cases to himself (S. P. D. lxxxviii. 381). But the remonstrance had no effect, and in the following year two glaring cases brought matters to a crisis. The court of chancery granted equitable relief against two judgments obtained in the king's bench by some very sharp practice. Coke and the other judges sitting with him held in both cases that the interference was illegal (Heath v. Rydley, Cro. Jac. 335 ; Courtney v. Glanvil, Cro. Jac. 343). Soon after two indictments of præmunire were brought against the parties to the suits in chancery, their counsel, &c., and a suspicion seems to have been entertained that this step was taken with Coke's sanction, if not at his instigation. But in spite of remonstrances from the presiding judge, the grand jury refused to find a true bill, and, on a reference to the law officers on the general question of equity jurisdiction, the court of chancery was held to be within its rights. That Coke, even off the bench, had something to do with this attempt to test the chancellor's powers is very likely, though there is hardly any direct evidence to prove it. At any rate he was considered by the king and by Bacon to have again taken up a hostile position, and to have shown his determination on all occasions to claim for the common law judges an absolute and dangerous independence. According to Blackstone, Coke was clearly in the wrong (iii. 54). This does not merely mean, as Hallam suggests, that the contrary opinion has prevailed, for the right of the chancery to interfere by injunction had been long established. Yet we cannot judge Coke's conduct without considering that in his day the powers of the chancellor were not clearly defined, and were therefore open to great abuse (Spedding, v. 252, 371, 380; Gardiner, iii. 11. Campbell, Chancellors, 4th ed. ii. 363, evidently takes his story from Kennet, ii. 704, but tells it inaccurately and makes bold additions. See also Rep. in Chancery, where the controversy ​as to jurisdiction is discussed, and Collect. Jurid. i. 20, where this treatise is printed more correctly).
The famous case of commendams brought matters to a crisis. An action brought against the Bishop of Coventry and Lichfield in respect of a living held by him in commendam was being argued in the exchequer chamber before twelve judges (Colt v. Bishop of Coventry, Hob. 140). It affected the king's right of granting commendams, and James had through Bacon directed first Coke and then the other judges to stay the action until his majesty's further pleasure should be known as to consulting with him. They agreed to disregard the injunction, and justified their conduct in a letter to the king, probably written by Coke, in which they declared Bacon's message to be contrary to law, and such as they could not yield to by their oath. They were at once summoned before the council, and after an angry scene, in the course of which the king tore up their letter, and together with Bacon, the attorney-general, lectured them severely, the question was put to them directly whether they would obey a similar order in the future. Eleven of the twelve promised obedience. Coke alone remained firm, saying merely that he would do that which an honest and just judge ought to do (Holkham MS. 726 ; 8. P. D. lxxxvii. 371). 'This simple and sublime answer,' says Campbell (Chief Justices,!. 286), 'abashed the attorney-general ; ' a most improbable statement, which would hardly be credible, even if there were any authority for it. Coke's conduct, on the other hand, has been criticised by Mr. Spedding less favourably than it seems to deserve ; for it showed at least his courage in resisting what he thought then and afterwards to be a threatening danger, the frequent exercise, even within strictly legal limits, of the king's power (Speding, v. 357 et seq. ; Gardiner, iii. 16 et seq. ; S. P. D. lxxxvii. 371 ; Collect. Jurid. i. 1.)
Other causes operated against Coke. In the trials arising out of the mysterious murder of Overbury (2 State Trials, 911 et seq.), though he drew high compliments even from Bacon ' never man's person and his place were better met in a business than my Lord Coke and my lord chief justice in the cause of Overbury' yet he was felt to have been over-zealous in his eagerness to discover the truth. During Sir Thomas Monson's trial he hinted darkly at some important secret affecting persons of high station ; rumour connected his words with the death of Prince Henry ; Weldon, indeed (Court and Character of King James, p. 123), quoting as Coke's actual words, 'God knows what became of that sweet babe, Prince Henry, but I know somewhat ; ' and the staying of the trial by the king's intercession made people believe that the king feared the disclosure of awkward facts. 'Sure,' says Roger Coke, 'the displacing Sir Edward Coke the next year gave reputation to these rumours.' (The words quoted by Weldon do not appear in the report in the State Trials. On the Overbury scandals, see Truth brought to Light by Time ; Somers Tracts, ii. 262 et seq.)
Another subject of offence was Coke's refusal to appoint Villiers's nominee to a post in the green wax office, which, says Roger Coke (Detection, i. 19), who, however, is a very untrustworthy authority, 'I have it from one of Sir Edward's sons,' was the cause of his removal. Doubtless there were many such influences at work, but of course the charges formally brought against him were of a more public nature. They were chiefly his attempts, some successful and others not, to weaken the ecclesiastical commission, the Star-chamber, the chancery and other courts, the list of such grievances being set forth in a paper entitled 'Innovations introduced into the Laws and Government,' written partly in Bacon's hand, and evidently submitted by him to the king (Spedding, vi. 90). Many of the grievances were of comparatively old date ; and only the year before, when Ellesmere was ill, it seemed at least possible that James might make Coke lord chancellor. Bacon, with full knowledge of them, took much pains in his begging letter to the king to state the objections to the appointment of Coke, 'who,' he wrote, though he erased the words Spedding, v. 242 n.), 'I think in my mouth the best choice.'
The storm thus broke upon Coke suddenly. A meeting of the council was held on 6 June 1616 to consider his case ; the letters of the time are full of it ; and in the general opinion his disgrace was imminent. 'If he escape,' writes Chamberlain, 'it will be because the king is told that if he falls he will be honnoured as the martyr of the commonwealth.' He himself was much alarmed, and in a letter to the queen begged that she and the blessed prince would intercede for him. On 26 June he was summoned before the council to answer the charges against him, which were declared to be (1) that he bound over Sir Christopher Hatton not to pay a debt of 12,000l. due to the crown by the late Chancellor Hatton; (2) that he uttered contemptuous speeches in his seat of justice, especially in the case of Glanvile v. Allen, threatening the jury, and declaring the common law of England would be overthrown ; (3) that he behaved disrespectfully to the king, in being the only ​judge that refused to submit in the matter of the commendams (S. P. D. Ixxxvii. 376) Coke defended himself, but only made matters worse. The king, not satisfied with his answers, had him summoned again on 30 June, 'when he was suspended from the council and from the public exercise of judicial duties. It was further ordered 'that during this vacation, while he hath time to live peaceably and dispose himself at home, he take into consideration his books of reports, wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law.' Even his styling himself chief justice of England, instead of merely the king's bench, was mentioned as a cause of offence. On 2 Oct. he appeared before Ellesmere and Bacon, and handed in a statement of five errors which he had found in his reports, all of the most trivial character, e.g. 'that he had set Montagu to be chief justice in Henry VIII's time, when it should have been in Edward VI's, and such other stuff; not falling upon any of those things which he could not but know were offensive' (Bacon's Account ; Spedding, vi. 94-6). This of course would not do, and on 17 Oct. he was informed that the king out of his gracious favour was pleased that his memory should be refreshed, and a selection of five points, touching the prerogative, was made from his reports by Bacon and Yelverton, and submitted to him. In a few days he gave his answer to the effect that his statement of the law did not affect the prerogative, though as regards four of them he was prepared to modify his language so as to make this more clear. He was found impracticable, and no further attempt was made to bring him to submission. On 10 Nov. the king announced to the council his removal from the bench, and gave elaborate reasons for the step : Coke's ' perpetual turbulent carriage' towards the church, the prerogative, and the jurisdiction of certain courts ; his popularity arising not from his being liberal, affable, or magnificent, but from design ; his refractory conduct in the council, ' rather busying himself in casting fears . . . concerning what they could not do, than joining his advice what they should do;' and his scornful treatment of the proposal to review his reports (Spedding, vi. 96). Chamberlain summed up the reasons very correctly when he wrote to Dudley Carleton (14 Nov. 1616) : ' The common speech is, that four p's have overthrown and put him down that is, pride, prohibitions, præmunire, and prerogative.' He was removed from the chief justiceship on 15 Nov., receiving the news, it is said, with dejection and tears.
Towards the end of 1616 appeared an anonymous letter addressed to Coke, which deserves to be noted, both because it gives an interesting picture of his character, and also because Bacon was long supposed to have written it (see Cabala, 3rd edit. 86). Coke's failings are frankly stated : in discourse he delighted to speak too much, not to hear other men, so that sometimes his affections were entangled with a love of his own arguments, even though they were the weaker ; he conversed with books and not with men, who are the best books ; his bitter tongue bred him many enemies; he was too much given to vainglory, to making the law lean to his own opinion, and to the love of money. In the Overbury trials and in the chancery dispute his intentions were good, but he showed a want of discretion. He is recommended to give way in the meantime to power, 'to make friends of the unrighteous mammon,' so that he may be enabled to carry on still more vigorously his war against the papists advice which Coke for some years strove to follow. This candid criticism points at real defects in his character, and must have been written by some one who had observed him closely (see Spedding, vi. 121 et seq., where sufficient reasons are given for believing that Bacon was not the author).
The public blow had not long fallen upon him before Coke was plunged into exciting family troubles. He still cherished hopes of returning to favour ; for he was assured by the king that, save as regards the matters wherein he had offended, he was still esteemed a good servant, who would be had in remembrance, and employed in some other condition. Moved evidently by the desire to make powerful friends, he agreed to a proposal, which he had formerly opposed, of a marriage between his youngest daughter, then only fourteen, and the elder brother of the Duke of Buckingham. Lady Hatton, however, whose consent had not been obtained, took away her daughter to her cousin's house at Oatlands, and a famous and undignified squabble ensued. Coke applied for a warrant from the privy council. Bacon refused, but Winwood granted it. Coke, without his warrant, went to Oatlands and recovered his daughter by force. His wife in turn appealed to the privy council, where Bacon, now lord keeper, took up her quarrel, and an information against Coke was filed in the Starchamber. The matter was ultimately patched up, but not before Bacon had come under the censure of the king ; and the marriage took place (see Coke's proceedings at Oatlands, described in letter of the council to Sir Thomas Lake, Camden Miscell. v., Camd. Soc. ​vol. lxxxvii. ; S. P. D. xcii. 476). Between Coke and his wife there had been dissensions, chiefly concerning her property, before this incident. While his fate was uncertain she had interceded for him, and refused to 'sever her interests from his ; ' but she left him after his fall ' divided herself from him,' says Chamberlain, ' and disfurnished his houses in Holborn and at Stoke of whatever was in them, and carried all the moveables and plate she could come by God knows where, and retiring herself into obscure places, both in town and country.' There was a brief reconciliation in 1621 (S. P. D. cxxii. 275 ; on their property quarrels see ib. cclxxx. 405, 406).
Gradually Coke came back to public life, and he had reason to expect that his highest ambition would yet be gratified. Among lawyers there was a hope that he would be the next lord chancellor (ib. xc. 432). He was occasionally consulted by the king on private matters, and in September 1617 he was recalled to the council. The rumour ran that he was to be raised to the peerage ; and the statement is made by so many different letter-writers that evidently some very marked recognition of his services was looked for (ib. lxxxviii. 392, lxxxix. 413, 414, xciii. 489, xcv. 511). But it was only rumour. He had to submit to be 'tossed up and down like a tennis-ball' (ib. xciii. 489). During the next years, however, he sat in the Star-chamber, and was a member of several commissions of inquiry concerning the enforcement of the laws against seminary priests, the disputes between the Dutch East India Company and English traders, various matters of finance, and other subjects (see index to Rymer's Fœdera, xvii). He was made one of the commissioners for executing the office of lord treasurer, and the general impression was that he would be appointed to the office whenever it should be filled up. But in 1620 he was passed over.
In 1620 began the last, and in many respects the worthiest, period of Coke's life. He had taken part in the preliminary consultations relating to the parliament which was summoned in that year, and was himself returned as member for Liskeard, 'by the king's commandment' (Holkham MS. 727). From the first he appeared as a leader on the popular side, and his learning and experience made him the most powerful man in the house (see Proceedings and Debates . . . in 1620 and 1621). 'He did notable good service in the House of Commons during the last parliament,' says D'Ewes, 'and thereby won much love and credit' (Autobiography, 213). After one of his speeches a member who had sat in James's previous parliaments exclaimed that this was the first parliament that ever he saw counsellors of state have such care of the state.' He moved an address to the king praying for the better execution of the laws against recusants. On the great question of monopolies he took a most active part, his zeal on at least one occasion getting the better of his law and his sense of justice. When the abuses in connection with the patents for alehouses were before the house, he moved that Sir Francis Michell, a magistrate whose name appeared unfavourably in the proceedings, should be sent to the Tower and struck off the commission of the peace : and when the motion was carried, and sentence passed, he induced the house to refuse Michell's request to be heard. It was soon found that they had exceeded their powers, since Michell's offence was not specially against the House of Commons ; and in Momperson's case Coke frankly avowed the illegality of the course which he had advised. His eagerness to stamp out abuses led to an attack upon himself. Two men, Lepton and Gouldsmith, whose patents had been condemned, were accused of having out of revenge induced one Howard to prefer a bill against him in the Star-chamber, such, they said, as 'should ruin him,' charging him with abusing his judicial position to enrich himself, and with having enforced juries to give false verdicts. The conspiracy was warmly resented by the house as a breach of privilege ; but in the many discussions on the subject the question is not raised what ground there was for these old charges against Coke (Proceedings and Debates, ii. 201 et seq.) Among the most striking incidents of this Parliament was that with which Coke marked the adjournment in June. Warlike speeches had been delivered, and a declaration of the readiness of the commons to support the king had been agreed to amid wild enthusiasm. The solemnity of the occasion moved every one. And before the motion of adjournment was put, 'Sir Edward Cooke, one of the king's privy council, with tears in his eyes, standing up, said the prayer (which is in the Common Prayer-book) for the king and his issue, adding only to it, "and defend them from their cruel enemies " ' (ib. ii. 174). He shared fully in the popular feeling against Spain; and when the house met again later in the year, he surpassed every one in the violence of his language. In a speech which recalls the prosecution of the gunpowder plotters he declared that there never came hither anything from Spain that did not either damage us or endeavour it. Among his other speeches of interest may ​be mentioned one on the scarcity of money {26 Feb.) He enumerated seven causes : (1) the turning of money into plate ; (2) the use of gold folia in gilding ; (3) the undervalue of silver ; (4) the East India Company, who intercept ' the dollars and other moneys that would otherwise come into the kingdom, and bring in for it nothing but toys and trifles ; ' (5) the excess of imports over exports ; (6) 'the French merchants for wine arry forth 80,000. per annum, and bring in nothing but wines and lace and such like trifles ; (7) the patent for gold and silver lace and thread, which wastes our bullion and coin, and hinders the bringing of it into the kingdom (ib. i. 96 ; Parl. Hist. i. 1194). The impeachment of Bacon took place in the same year ; and Coke, who was member of the committee of investigation, was, along with Digges, Phillips, and Noy, entrusted with the drawing up of the charges. It has even been suggested that he instigated the proceedings ; but there is no reason to believe that this is true. Mainly by his advice, indeed, the House of Commons declined to accept the novel mode of trial proposed by the King ; but his conduct exhibits no trace of unseemly eagerness to secure the disgrace of his old rival. From the appearance of such unworthiness he was saved by Bacon's plea of guilty. 'Even Sir Edward Coke,' says Macaulay, 'for the first time in his life behaved like a gentleman.' The general condemnation which is here implied was shared, it must be confessed, by some of his contemporaries. 'He would die,' writes Sir E. Conway in 1624, 'if he could not help to ruin a great man once in seven years.' Since his removal from the bench he and Bacon had worked together much more harmoniously ; but there could never have been any real sympathy between them. They differed absolutely in character and in intellect, and each probably despised the other. Coke's opinion of Bacon's philosophical work has been curiously preserved in the copy of the 'Novum Orgauum ' which Bacon presented to him. It bears the inscription :
Edw. C. ex dono auctoris.
Auctori consilium.
Instaurare paras veterum documenta sophorum :
Instaura leges, justitiamque prius,
and a sketch of a ship, with the lines :
It deserveth not to be reade in Schooles,
But to be freighted in the Ship of Fooles.
(Bacon's Works, 1819, vi. 252.)
By his conduct in parliament Coke had finally cut himself away from all hope of restoration to office. James especially resented an address which he had moved concerning the Spanish marriage, called it ' Sir Edward Coke's foolish business,' and said ' it had well become him, especially being our servant and one of our council, to have explained himself unto us, which he never did, though he never had access refused to him.' The great debate which concluded with the protestation in favour of the liberties of parliament exhausted the patience of the king. He tore the entry from the journal of the house, dissolved parliament, and arrested Coke and other leaders of the ' turbulent ' party. In the hope of finding treasonable matter Coke's chambers were ransacked and his papers were brought to the council to be searched (S. P. D. cxxvii. 333, 336). He himself was kept closely confined in the Tower for nine months. When he was released in August 1622, it was only subject to conditions as to the limits within which he might live, and he was removed from the council. While he was in the Tower five different suits were brought against him, in all of which he was successful ; he was examined four times on state matters, and delivered of all kind of suspicion, and nothing that could bring him into question was found among his papers. These are described as his seven great deliveries while he was prisoner in the Tower (Holkham MS. 727).
In the parliament of 1624 Coke sat for Coventry. The king had resolved to exclude him along with Pym and others, and being unable to do so openly had placed them on a commission to inquire into the condition of religion and trade in Ireland. The manoeuvre was perfectly understood by everybody, and somehow Coke contrived to escape from what was meant as a temporary exile. 'No restraint,' he said afterwards, referring to the attempt, ' be it never so little, but is imprisonment, and foreign employment is a kind of honourable banishment.' He remained to take a leading part in the impeachment of the Earl of Middlesex, to speak against the excessive taxation of the people, to advocate a stricter observance of ' the king's ecclesiastical laws,' to renew his protest against the Spanish marriage, and to encourage the feeling for war, which made him, he said, feel seven years younger. Buckingham's eagerness for war made him exclaim that ' never any man deserved better of his king and country ' the speech to which Clarendon must refer (Hist. bk. i. 10) when he accuses Coke of having blasphemously called Buckingham ' our Saviour.' Coke was afterwards heard to speak very differently of Buckingham's influence on home policy. Meanwhile he had so far regained favour that afew months before James's death the oath of a privy councillor was again ​administered to him (S. P. Ireland, 1615-25, p. 456). James died 27 March 1625, and in Charles's first parliament Coke sat for Norfolk. The king's demand for money to carry on the war was the chief subject of debate. With their minds full of unredressed grievances, and ignorant of the purposes to which the money was to be devoted, the commons confined the grant of tonnage and poundage to one year, instead of following the old practice of granting it for the king's life, and for the special needs of the time gave two subsidies, amounting to about 140,000l. Charles had named no sum, but this was probably not a tenth part of what he wanted. He summoned the parliament to meet again at Oxford, and demanded a new subsidy. Coke, in what has been described as one of his greatest speeches, 'argued strongly against concession, pointing to the depression of trade and the inability of the people to bear a greater load, refusing to acknowledge the alleged necessity for a larger grant, and saying that so long as the king was led by ill advisers there was no encouragement to give. Subsidies were for exceptional circumstances, whose existence in this case was not established, while the ordinary expense and charge should, and with an economical and honest administration could, be borne by the income from lands and revenues. He entered fully into the causes of deficiency, and insisted that a thorough reform of administration was the remedy required. The speech, says Eliot, had a prodigious effect (Forster, Eliot, i. 373). A few days afterwards he offered to contribute 1,000l. out of his own pocket rather than grant a fresh subsidy. The second parliament met in 1626, and again an attempt was made to exclude him ; for Charles, who when prince used to say he never tired of hearing Coke ' he so mixed mirth with wisdom ' found him as fiery and turbulent as James had done. He was returned once more for Norfolk. But he had already been pricked as sheriff for Buckinghamshire, on purpose, as was believed, to keep him out of the house, and the scheme was so far successful that he was accorded only the technical rights of a member, without power of sitting. He attempted to evade the result by objecting first to an informality in his patent, which was amended, and next to the terms of the sheriffs' oath, because among other grounds it required him to 'suppress all errors and heresies commonly called Lollardries,' which he argued meant that he should proceed under a repealed statute against true protestants. The objection was sustained by the judges, but Coke did not escape, as by an order of council this part of the oath was omitted. It is curious to note that in 1621 the case of a sheriff elected to parliament had been submitted to him, and he had given art opinion that the sheriff could not sit in the house while holding office (S. P. D. cxxiii. 311). He refers to his own case in 4 'Inst,' 48, stating that a subposna having been served upon him at the suit of Lady C. (Lady Hatton) he was allowed the privilege of parliaments. In 1628 he was returned both by Buckinghamshire and Suffolk, and he decided to sit for the former county, in which he resided. 'Raro,' he observes, 'electus est aliquis duorum comitatum;' but of him and his colleague in Suffolk, it is said in a letter of the time, 'they would not have been chosen if there had been any other gentlemen of note, for neither Ipswich had any great affection for them, nor most of the country ' (S. P. D. xcv. 6). Now in his seventy-eighth year he was as active as ever. He spoke out earnestly on the illegality of the enforced loan by which Charles had attempted to save himself. He was one of the representatives of the commons to support in the conferences with the lords their resolut ions against illegal imprisonment and taxation. He brought in the bill of liberties, out of which grew, apparently at his suggestion, the petition of right. During the debate on the king's answer to the remonstrance, in which he bade the commons rely on his royal word, Secretary Coke admitted the illegality of the loan, and advised them to petition his majesty not to repeat it. Sir Edward Coke took up the phrase. 'Was it ever known,' he said, 'that general words were a sufficient satisfaction to particular grievances ? . . . The king must speak by a record and in particulars, and not in generall. Let us have a conference with the lords and join in a petition of right to the king for our particular grievances . . . not that I distrust the king, but because we cannot take his trust but in a parliamentary way ' (2 Parl. Hist. 348, and see Harl. MS. 4771, fol. 139 6). The subsequent alteration made in the petition by the lords the saving of the king's 'sovereign power' he strenuously resisted. This 'sovereign power' was a new and dangerous phrase, unknown, he said, to Magna Charta and other statutes of freedom. 'Take we heed what we yield unto ; Magna Charta is such a fellow that he will have no sovereign' (Parl. Hist. ii. 357).
The old man appeared in yet one more historical scene. During the debate on the ' Grand Remonstrance ' came two messages from the king, the first recommending the house to prepare for an early prorogation, which, though intended to take the house off the remonstrance and so understood, was disregarded ; the second peremptorily directing ​them not to enter on any new business that might bring scandal to the state or its members, which meant not to discuss the conduct of Buckingham. This second message led to one of the most dramatic episodes in the history of parliament. Eliot, alluding, though not by name, to Buckingham, was stopped by the speaker. It was felt to be a supreme moment in the struggle for liberty of speech. Digges, Rich, Pym, and lastly Coke himself, attempted to speak, but were overcome with tears. The whole house was in confusion, the greater part weeping, the others, as we are told, blaming those that wept. Some signs of wavering restored courage ; the house went into committee to consider as to the safety of the kingdom, and the door was locked so that no man might leave. After others had referred in general terms to the ill-advisers of the king, Coke rose and spoke what was in every one's mind. He recalled how previous parliaments had dealt plainly with dangerous ministers, and declared that they themselves had been over-patient ; ' and, therefore, he not knowing whether ever he should speak in this house again would now do it freely, and there protested that the author and cause of all those miseries was the Duke of Buckingham; which was entertained and answered,' says a reporter of the scene, 'with a chearful acclamation of the house; as when one good hound recovers the scent the rest come in with a full cry, so they pursued it, and every one came on home, and laid the blame where they thought the fault was' (Letter of Alured in Rushworth, i. 609). This was Coke's last great speech in parliament. His name appears in connection with the presentation of the remonstrance and with financial bills, but it is absent from the records of the next session.
The height of Coke's legal fame has overshadowed his other claims to greatness. It is often forgotten how largely in the great struggle against personal government his courage and the extraordinary weight of his influence contributed to the final result. He had certainly many grave defects. It was a liberty of a restricted kind for which he fought, and in more placid times he would have been distinguished as a stout defender of authority. In matters of religion he was the most intolerant of men, regarding all forms of laxity as the chief of political dangers. During the debate on Dr. Montague's book in 1625, he expressed a wish that 'no man may put out any book of divinity not allowed by convocation ' (Com. Journ. i. 809); while he represented in its most exaggerated form the prevailing dread of the growth of popery. He has been charged very justly with other forms of narrowness ; with a want of generosity to his opponents, and of breadth of view in his treatment of public questions. Of originality in his political ideas there is no trace ; and he probably despised the vast political schemes of Bacon as much as he did the 'Novum Organum.' Yet his fanatical narrowness may well be considered to have been of as much service as would have been a temperate wisdom. The key to his whole life is his veneration for the law, for its technicalities as well as I for its substance, and the belief that on its 'rigorous maintenance and the following of precedents depended the liberties of England. Possessed with this one idea he exercised a great and beneficial restraint on two of the most dangerous and unwise of English kings. He has been accused of inconsistency ; but in reality no man's life was more of a piece. The same spirit which he showed in requiring the king's assent ' in a parliamentary way ' is evident in his conduct in the case of commendams, and even in his violence at the bar. To his unity of purpose and to his intense earnestness, as well as to the reputation which he bore of boundless legal learning, we can trace the influence which he exerted over his contemporaries. From the fragments of his parliamentary speeches which survive, we can still understand how, with all their grim pedantry, they stirred the blood of those who listened to them.
Coke's remaining years were spent at Stoke, among his 'much honoured allies and friends of Buckingham,' as he says in the preface to his 'Institutes.' We have few facts of his life during these years. In 1630 one Jeffes was convicted of libelling him, having affirmed his judgment in the case of Magdalen College ' to be treason, and calling him therein "traitor, perjured judge," and scandalising all the professors of the law.' We hear of him again in 1631. A friend, learning that he was in ill-health, sent him ' two or three doctors ; ' but he told them that ' he had never taken physic since he was born, and would not now begin ; and that he had now upon him a disease which all the drugges of Asia, the gold of Africa, nor all the doctors of Europe could cure old age. He therefore both thanked them and his friend that sent them, and dismissed them nobly with a reward of twenty pieces to each man.'
Coke died at Stoke Pogis, 3 Sept. 1634, and was buried at Tittleshall in Norfolk, where his epitaph records in English the chief facts of his life, and in Latin his virtues and genius. 'His parts were admirable,' says Fuller ; 'he had a deep judgment, faithful memory, active fancy; and the jewel of his mind was put into a fair case, a beautiful body, with a ​comely countenance; a case which he did wipe and keep clean, delighting in good cloaths, well worne, and being wont to say, that the outward neatness of our bodies might be a monitor of purity to our souls ' (Worthies, Norfolk, 251. For a list of portraits, see Granger's Biog. Hist. i. 383, and Woolrych, p. 193; Johnson, ii. 483. The history of the Coke family will be found in Burke's Commoners, i. 3, and Peerage, 'Leicester.' Lord Coke's fourth son, Henry, was the great-great-grandfather of the first earl of Leicester).
To the last Coke was an object of suspicion. In 1631 the king, knowing that he was infirm, had given orders that on his death his papers should be secured, lest anything prejudicing the prerogative might be published, 'for he is held too great an oracle among the people, and they may be misled by anything that carries such an authority as all things do which he either speaks or writes' (S. P. D. clxxxiii. 490). Under a warrant issued in July 1634 (ib. cclxxii. 165), Sir Francis Windebank came to Coke's house to seize his papers, and 'he took,' says Roger Coke, 'Sir Edward Coke's comment upon Littleton, and the history of his life before it, written with his own hand, his comment upon Magna Charta, &c., the Pleas of the Crown and Jurisdiction of Courts, and his 11th and 12th Reports in manuscript, and I think 51 other manuscripts, with the last will of Sir Edward, wherein he had for several years been making provisions for his younger grandchildren. The books and papers were kept till seven years after, when one of Sir Edward's sons in 1641 moved the House of Commons that they might be delivered to Sir Robert Coke, heir of Sir Edward, which the king was pleased to grant, and such as could be found were delivered; but Sir Edward's will was never heard of more to this day' (Detection, i. 309). From his chambers in the Temple were also taken many books and papers, including a book of 'Notes of arguments at the bar when I was solicitor, attorney, and before' (S. P. D. cclxxviii. 351. As to his manuscripts, see infra).
Of Coke as a lawyer it is difficult to speak without attaching either too great or too little weight to his vast reputation. In avoiding the indiscriminate laudation with which he has been injured there is a danger of falling into the still more unbecoming error of speaking without due respect of a great man who has exercised a really profound influence on English law.
Coke's chief works are his 'Reports' and his 'Institutes.' The former, which enjoy the distinction of being cited as 'The Reports,' partly overlap those of Dyer and Plowden, and extend to the period when their author presided over the king's bench. While they were being published, it has been noted, no other reports appeared; 'as it became all the rest of the lawyers to be silent whilst their oracle was speaking' (5 Mod. Rep. viii). They are much ampler than previous reports. They set out the pleadings, not only for the proper understanding of the cases, but as models for the student. A knowledge of the art of good pleading was in Coke's eye the necessary foundation of all thorough knowledge of the common law; 'and for this cause,' he says, 'this word placitum is derived a placendo, quia bene placitare super omnia placet.' Earlier cases are collected with laborious care; the arguments are stated; and the reasons of the judgment are thrown into the form of general propositions of law. The report of each case, in short, forms a brief treatise on the points of law raised therein. The arrangement is not chronological, but more or less according to subjects; and covering, as the reports do, a period of nearly forty years, they present a fairly complete account of English law in the time of Elizabeth and James. They are not reports in the strict sense. As appears from the prefaces, Coke prepared the cases not simply for citation, but so that they might serve an educational purpose. To a great extent, though how great it is impossible to say, they contain his own statement of the law, and not a mere record of the arguments, and of the judgment of the court. For instance, to Anderson's report of Shelley's case (And. 71), there is appended a note: 'Le Atturney Master Cooke ad ore fait report en print de cest case ove arguments et les agreements del Chanceler et auters juges mes rien de ce fuit parle en le court ne la monstre' (but see WALLACE'S Reporters, 130). And, to quote another contemporary, we have Bacon's criticism: ' Great judges,' he says, 'are unfit persons to be reporters, for they have either too little leisure or too much authority, as may appear well by those two books, whereof that of my Lord Dier is but a kind of notebook, and those of my Lord Cokes hold too much de proprio' (Spedding, v. 86); and see Bacon's praise of the reports (ib. p. 65). Not only does he interpolate, but he is often inaccurate. Sometimes, as in Gage's case (5 Rep. 45 b; see 1 Salk. 53, and Will. 569), he gives a wrong account of the actual decision; and still more often the authorities which he cites do not bear out his propositions of law. On Southwell's case see Jones on 'Bailments.' And see Stephen's 'History of Criminal Law,' ii. 205. This last is a fault which is common ​to his 'Reports' and his 'Institutes' alike; and it has had very serious consequences on English law. His treatment of Pinnel's case is an example. By laying down as actually decided by the court what was at the most only a dictum not necessary for the particular decision, he made it a rule of our law that a creditor who on the day when his debt falls due accepts a smaller sum than is due to him in satisfaction of the whole, and executes no deed of acquittance, is not bound by the arrangement (Co. Lift. 212 b; and see Foakes v. Beer, L. R. 9 App. Cas. 605, 616). Judges are now more ready than they were formerly to scrutinise his law. It is less true than it used to be that his works have an 'intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors' (Blackstone, i. 72). But in days when this intrinsic authority had a real existence, many of his doctrines were so firmly established by judicial decision that no judge can now disregard them. 'I am afraid,' said Chief-justice Best, 'we should get rid of a good deal of what is considered law in Westminster Hall, if what Lord Coke says without authority is not law' (2 Bing. 296).
The 'Institutes' are in four parts: the first is a reprint of Littleton's treatise on tenures, with a translation and a commentary; the second, the text of various statutes from Magna Charta to the time of James I., with a full exposition; the third is on criminal law; and the fourth is a treatise on the jurisdiction of the different courts of law. The first part, by which Coke is best known, and which is commonly described as 'Coke upon Littleton,' was intended as a law student's first book. The commentary is very minute. The meaning of legal terms is explained; their etymology is insisted upon as an invaluable aid to their right understanding; and Littleton's summary statement of the law is amplified by references to the year-books and the older writers. Coke's etymologies are of the quaintest and most innocent character. 'Parliament' of course comes from 'parler lament' (110 a); 'terra dicetur a terendo quia vomere teritur' (4 a); 'in French coine signifieth a corner, because in ancient times money was square with corners, as it is in some countries at this day;' 'moneta dicetur a monendo, not only because he that hath it, is to be warned providently to use it, but also because nota ilia de authore et valore admonet' (207 b); 'robberie . . . because the goods are taken as it were de la robe, from the robe, that is, from the person' (288 a). 'Coke upon Littleton' is almost everything that an institutional work should not be. Its text is a treatise in Norman French, which may be, as Coke, with a brotherly lavishness of praise, called it, 'the most perfect and absolute work that ever was written in any humane science,' but whose law was a century and a half old, and was fast growing obsolete. The commentary makes no attempt to bring into strong light the broad principles of law, the educational value of which nevertheless Coke himself seems to have appreciated. His evident anxiety is to let no legal crevice be unexplored, for Littleton is to be studied like holy writ. 'Certain it is,' he says in the preface, 'that there is never period, nor (for the most part) a word, nor an &c. but affordeth excellent matter of learning.' And in this spirit he writes throughout, distracting his patient reader with unimportant exceptions and 'divers diversities.' By binding himself, moreover, to Littleton's text, and by crowding together in his notes all the points which the text suggests, Coke could not avoid an arrangement of topics which to a student is hardly more useful, and is certainly not more attractive, than that of an ordinary digest. In short, there is much to be said for the opinion of Roger North, which has excited the indignation of Coke's admirers, that the 'comment upon Littleton ought not to be read by students, to whom it is, at least, unprofitable; for it is but a commonplace, and much more obscure than the bare text without it' (Lives, i. 17). Compared with such a scientific treatise as Fearne's 'Contingent Remainders,' it is only a learned collection of somewhat disjointed notes, not distinguished by any profound analysis of legal ideas. 'Truly,' said Hobbes, the severest and among the acutest of his critics, 'I never read weaker reasoning in any author on the law of England than in Sir Edward Coke's Institutes, how well so ever he could plead' (Eng. Works, vi. 144). His merits and the causes of his reputation are not far to seek. For the first time he made accessible in English the older learning, which till then had to be painfully gathered from the year-books and from forbidding abridgments. And so fully has the service been appreciated that since Coke's days the lawyers are few who have known their year-books at first hand. What was obscure and difficult even to the learned he put into language which, in spite of all its pedantry, and of the many unprofitable subtleties which it covers, is direct and clear. Bare justice has been done to his style. His legal propositions may often be unsound in substance, but in his mode of stating what he believes or wishes to be law he often reaches a perfection of form, exhibiting that freedom from flabbiness and that ​careful use of terms which is essential to a good legal style. So vast have been the changes in English law since he wrote, and so completely has the practical part of Coke's learning been appropriated by other text-writers, that his works tend more and more to possess mainly an historical interest. It was a subject of marvel to Sir Henry Spelman that Coke did not enter into the field of feudal learning, 'from whence so many roots of our law have of old been taken and transplanted.' As is observed by Butler, his best editor, Coke never once mentions the feudal law. The explanation that his chief purpose was to write a book of practical utility is obviously insufficient, for Coke insists repeatedly on the importance of the study of legal origins. But the omission is natural if we consider how greatly the feudal law as a part of the English law of real property is an invention of later writers. And its very absence gives to Coke's work an historical value not possessed by those of Spelman, Gilbert, and Wright, who have thrust into English law the ideas of continental jurists. On this account at least we may join in Fuller's quaint eulogy, that 'his learned and laborious works will be admired by judicious posterity while fame has a trumpet left her, and any breath to blow therein.'
Coke's works were: 1. 'Reports' in thirteen parts. The first eleven parts were published in French, with the pleadings in Latin, 1600-15, printed at St. Omer; reprinted, 1609-19; in French, 1619-31; and 1624-9 (parts 5, 7, 8); in English, 1658, without the pleadings, which were published separately, 1659; in French, 2 vols. 1672; in English, 1680, without the pleadings; in French, 1697, with Chilton's marginal references; in French, 2 vols. 1762, with additional references: all in folio. The 12th and 13th parts were left unfinished, and in point of authority are held in less esteem (Hob. 300; pref. to Bukstrode's Reports, 10 B. & C. 275). Besides reports of cases, much more loosely stated than in the previous parts, they contain accounts of conferences at the privy council, and of consultations of judges, notes of legal points without reference to particular cases, and other extra-judicial matters. They deal largely with questions of prerogative, which is probably the reason why Coke did not elaborate and publish them during his lifetime. Their authority in law was much discussed with regard to the legality of the University Commission of 1851 (see Law Review, vol. xv). They were seized with his other papers in 1634, restored in 1641, and published, the 12th part in 1656, the 13th ('Certain Select Case in Law') in 1659, They had been written like the others, in French, but the Long parliament having required English to be exclusively the law language, they were published in a translation, and the original French has never been printed. The translation is said to be very inaccurate. Five manuscripts in French are mentioned in the Report on Public Records,' 1837, p. 382; Hargrave's MS. No. 34, a selection, 'said to be from Coke's own handwriting;' Lansdowne MSS. 601 (Kale's copy) and 1079; Harleian MSS. 4815-16; Maynard's MSS. No. 80, in Lincoln's Inn Library. The 12th and 13th parts were reprinted separately from the others in 1677. Editions containing the thirteen parts, all in English and 8vo: 7 vols. 1727, 7 vols. 1738, 7 vols. 1777, with Sergeant Wilson's notes; Dublin reprint, 1793; 3 vols. 1826, with notes by Thomas and Fraser. The edition of 1727 has the pleadings in Latin. The ' Reports ' have been done into verse (1742; new edition 1825), the point of each case being given in a couplet. Thus Whitlock's case is summarised:
And Savil's case:
Among the abridgments are that of Ireland (3rd edition 1657) and of Sir J. Davies (1651). To the 5th part was published in 1606 an answer 'by a catholicke devyne' (Parsons the Jesuit); see Coke's reference thereto, in the preface to the 6th part. 2. 'A Booke of Entries, containing perfect and approved Presidents of Courts, Declarations, Informations, &c.'—a book of practice. Cited as 'new entries,' to distinguish it from older books, such as Rastell; in Latin 1614 and 1671, both folio. 3. 'The First Part of the Institutes of the Laws of England, or a Commentary upon Littleton; not the name of the author only, but of the law itself,' 1st edition 1628 (this edition is said to be very incorrect: Butler's preface); 2nd, 1629; 3rd, 1633; 4th, 1639; 5th, 1656; 6th, 1664; 7th and 8th, 1670; 9th, 1684, with the Reading on Fines, and treatise on Bail and Mainprize, also included in the 10th, llth, and 12th editions; 10th, 1703, with the Complete Copyholder, also in the llth and 12th; llth, 1719, with the 'Olde Tenures,' also in the 12th; 12th, 1738 (this edition is severely censured in Hargrave's preface); 1775 (Brit. Mus.); 13th, 1788, with notes, an edition which is the basis of all the subsequent ones; besides the editor's notes, it contains notes from manuscripts of Hall, Sir W. Jones, and Lord Nottingham, begun by Hargrave and continued ​by Butler; 14th, 1789; 15th, 3 vols. 8vo (previous editions are in folio), 1794; 16th, 3 vols. 1809; 17th, 2 vols. 1817; 18th, 2 vols. 1823; 19th, 2 vols. 1832. Among the American editions is a reprint, with additions by Day, of the 15th in 1812, and a reprint with additions by Small of the 19th in 1853. There are many abridgments, &c.; among them: 'A systematic arrangement of Lord Coke's First Institute, . . . on the plan of Sir Matthew Bale's Analysis,' by J. H. Thomas, 3 vols. 1818; 'A readable edition of Coke upon Littleton,' omitting obsolete matter, by Coventry, 1830; Serjeant Hawkins's 'Abridgment,' 8th edition, by Rudall, 1822. 4. 'The Second Part of the Institutes . . . containing the exposition of many ancient and other statutes.' This and the 3rd part were finished in 1628; for the fourth he had collected materials (see pref. to 1st Inst.) Ordered by the House of Commons, 12 May 1641, that Coke's heir should 'publish in print the commentary on Magna Charta, the Plees of the Crowne, and the jurisdiction of courts, according to the intention of the said Sir Edward Coke.' Separate editions: 1642, 1662, 1664, 1669, 1671, 1681, all in folio. Published, with the 3rd and 4th parts, in 8vo, 1797, 1809, 1817 (last edition). 5. 'The Third Part of the Institutes . . . concerning high treason, and other pleas of the crown, and criminal causes.' Separate editions: 1644, 1648, 1660, 1669, 1670, 1680, all in folio. 6. 'The Fourth Part of the Institutes . . . concerning the jurisdiction of courts.' Separate editions: 1644, 1648, 1660, 1669, 1671, 1681, all in folio. Many errors are pointed out in Prynne's 'Brief Animadversions on the Fourth Part of the Institutes, &c.' (1659). 7. 'The Compleat Copyholder, being a learned discourse of the antiquity and nature of manors and copy-holds with all things thereto incident,' 4to, 1630, 1640, 1641, 1644, 1650 (with Calthorp's reading 'between the lord of a manor and a copyholder, his tenant, and the orders of keeping a court leet and court baron), 8vo, 1668 (with supplement 1673), and in editions 10 to 12 of 1 Inst. Reprinted in Hawkins's 'Law Tracts,' 1764. 8. 'A Little Treatise of Bail and Mainprize,' written at the request of Sir William Hayden, 4to, 1635, 1637, 1715 (Brit. Mus.); also in editions 9 to 12 of 1 Inst., and in Hawkins's 'Law Tracts.' 9. 'Le Reading del mon Seignior Coke sur 1'estatute de 27 Edw. I appells 1'estatute de Finibus Levatis,' 4to, 1662; also in editions 9 to 12 of 1 Inst., and in Hawkins's 'Law Tracts.' 10. 'The Lord Coke, his Speech and Charge at the Norwich Assizes,' 4to, 1607.' Coke himself describes it (pref. to 7 Rep.) as 'libellum quendam, nescio an rudem et inconcinnum magis . . . quern sane contest ornon solum meomnino insciente fuisse divulgatum, sed (omissis etiam ipsis potissimis) ne unam quidem sententiolam eo sensu et significatione, prout dicta erat, fuisse enarratam.' 11. 'Discourse on the Unlawfulness of Private Combats' (Gutch's Collect. Cur. i. 9; Wallace's Reporters; Bridgeman's Legal Bibliog.; Marvin, Soule, Lowndes, Brit. Mus. Cat.)
What Roger Coke calls the copy of his commentary of Littleton, with the history of his life before it, is now in the British Museum (Harl. MS. 6687). It does not contain the commentary in its final form, but seems rather to have been a general notebook, mostly written at an earlier period of his life. Besides memoranda of his life, chiefly relating to the offices which he held and to the births of his many children, it comprises a copy of Littleton's 'Tenures,' with profuse notes in French; historical observations; a treatise on pleading, &c. The personal notes are printed in 'Collect. Top. et Gen.' vi. 100. Among the Holkham MSS. (727) is another biographical note-book, containing additional facts, and written partly in Coke's own hand (see Hist. MSS. Comm. 9th Rep. 373). A treatise on ecclesiastical jurisdiction, and a letter to the princes and states of Germany warning them of dangers impending from the house of Burgundy and the Spanish monarchy (Holkham MS. 677). On serjeanties of sundry times, from the records in the Tower, supposed to be by Coke (Hist. MSS. Comm. 3rd Rep. 201). Various manuscripts in British Museum, including a speech in the Inner Temple Hall, 1614 (Add. MS. 22591, f. 93 b), and a statement of his religious faith (ib. f. 289). In a letter of 1605, Coke says that he has almost finished his book proving that the king's right to the jurisdiction ecclesiastical throughout his realms is declared by ancient laws, and not merely by those of Henry VIII and later (8. P. D. xiii. 210); and, writing in 1607, Chamberlain mentions a pamphlet of Coke's which was suppressed the day after publication, but does not name its subject (ib. xxvi. 348). Still later is calendared among the State Papers, out of Laud's possession, a 'treatise of Sir Edward Coke on the power assumed by the clergy not only in convocation to make laws and canons for the government of the church, but also to put them in execution as laws ecclesiastical, and to imprison, deprive, and put the subjects out of their freehold by colour of the same' (ib. cclv. 344). This is evidently MS. 2440 in Queen's College, Oxford, mentioned in Johnson's 'Life, ​ii. 480. Johnson refers also to 'A demurre about the burgesses for both the universities' in the Bodleian, No. 8489, and a law commonplace book, 2 vols., supposed to be by Coke, in the Bishop's Library, Norwich, No. 462. For the household book which Johnson mentions see Holkham MSS. 724, 729.
[There is no good biography of Coke. That by Johnson (2 vols. 1837) is inaccurate and disorderly; Serjeant Woolrych's (1826) is shorter and better. In the article in the Penny Cyclopædia the Harl. MS. 6687 was first used. See also Biog. Brit.; Foss's Judges, vol. vi.; and Campbell's Chief Justices, vol. i. Lord Campbell's life is very inaccurate. Calendar of State Papers, Dom. for the period of Coke's life; Reps, of the Hist. MSS. Comm.; Spedding's Bacon; Gardiner's Hist. of England.]
G. P. M.