Coke: Second part of lawes
- Theme: The rule of law
Who was Sir Edward Coke?
Coke (1552-1634, pronounced 'Cook') was the son of Norfolk barrister. After studying at Cambridge, he became an MP, Speaker of the House of Commons, Attorney-General, and Chief Justice. He was also active in setting legal and commercial frameworks for the ventures in North America.
As Chief Justice he upheld common law against attempts to override it by the rich and powerful. But after refusing to wait for the king's opinion on a case in 1616, he was was dismissed. However, he became an MP again, and in his late 70s was continuing to assert the power of law over the king with great success in the shape of his Petition of Right. His lasting influence on the English legal system has been enormous as the impact of his contemporary Shakespeare on the stage.
How did the Petition of Right come about?
Charles I was indoctrinated from childhood with the idea that kings had a divine right to rule, which set him on a collision course with the English and Scottish Parliaments. He would have happily ruled without parliament, but had to summon it occasionally to raise taxes to finance his military exploits.
Charles had tried to collect taxes directly and his commissioners imprisoned without trial those who failed to pay, thus flouting the rule of habeas corpus. When, in 1628, Charles was forced to call parliament, Coke presented him with the Petition of Right. Coke knew that the King would reject any attempt at a new Bill of Rights, so he presented Charles with a statement of the existing law, virtually a new Magna Carta, cleverly worded to redefine basic freedoms.
Coke summarised Parliamentary and individual freedom as follows:
...that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof; and that no freeman, in any such manner as is before mentioned, be imprisoned or detained.
Speaking a few days later in parliament, on 17 May 1628, Coke made his famous quote that 'Magna Charta is such a fellow, that he will have no “Sovereign”'.
Charles accepted the Petition, but it rankled him. He dismissed parliament and did not call another for eleven years, setting the two on a collision course that ended in civil war, his execution, and a short-lived republic. Coke did not live to see any of that, but the legal foundations he helped dig remain firmly in place today.
What was Coke's contribution to law?
Coke's writing on various cases in the early 1600s have been seen as foundation stones of judicial review, environmental and anti-monopoly law, and freedom from arbitrary search or seizure of someone in their own home ('The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose').
What are the Institutes of the Lawes?
The Institutes of the Lawes of England are a series of legal treatises written by Coke, compiled in 1628, which are are widely recognised as a foundational document of English common law. They are divided into three parts: A Commentary upon Littleton; The Exposition of Many Ancient and Other Statutes; and Concerning High Treason, and Other Pleas of the Crown and Criminal Causes.