Vol. 13 No. 11 (November 2003)
SIR EDWARD COKE AND THE ELIZABETHAN AGE by Allen D. Boyer. Stanford Ca: Stanford University Press, 2003. 325pp. Cloth $60.00. ISBN: 0-8047-4809-8.
Reviewed by Christopher W. Brooks , History Department, University of Durham (UK). Email: c.w.brooks@Durham.ac.uk
In any discussion of English legal and constitutional history, the name of Sir Edward Coke (pronounced Cook or Kuke in his own day) inevitably comes up sooner or later as one of the handful of truly important and influential figures. Born at Mileham in Norfolk in 1552, he attended Trinity College, Cambridge, and was then called to the bar at the Inner Temple in 1578. Having established a thriving legal practice, he became solicitor-general and then attorney general in the 1590s under Queen Elizabeth I. Her successor, James VI and I, made him chief justice of the Common Pleas in 1606, and he was promoted to chief justice of the King’s Bench in 1613, thereby becoming the highest judge in the land. Soon thereafter, however, Coke ran into stormy waters, primarily by clashing with the king about the extent of the royal prerogative; with the king and the bishops over the relationship between the common law and the church courts; with the lord chancellor, Thomas Egerton, about the reach of the equitable jurisdiction of the court of chancery; and with all of the above for allegedly attempting to establish his popularity with “the people.” In 1616 he was removed from office, and though he later returned for a short while to the privy council, during the 1620s he established a second career for himself as a leading member of the House of Commons. In 1621, he helped engineer the dismissal of his life-long rival, Sir Francis Bacon, from the lord chancellorship and was imprisoned for nine months at the end of the session. During the parliaments of 1628 and 1629, he defended the liberty of the subject in the face of the crown's attempts to raise money through forced loans and helped to push through the Petition of Right, a parliamentary assertion that Magna Carta was still in force, that no tax could be levied without the assent of parliament, and that no man could be imprisoned or deprived of his liberties or property without due process, including a legal indictment and a trial by jury.
Although King Charles I paid him the back-handed compliment of ransacking his study and confiscating his papers, Coke died in retirement in 1634, and it is tempting to say that at least some of his fame must be put down to his good fortune in living for so long in an era of generally low life expectation. His second career as a champion of liberty is often allowed to eclipse his earlier services to the crown. As attorney general, for example, he was zealous in the prosecution of those involved in the Oxfordshire rising of 1596 and in presenting the crown's cases against Sir Walter Raleigh and the Earl of Essex. At the same time, his longevity also enabled him to make the massive contribution to English legal literature that ensured his name would become synonymous with the law for more than two centuries to come. Amongst a large number of published works, he produced thirteen volumes of reports in the early decades of the seventeenth century, along with four volumes of Institutes. The prefaces to the reports contain most of his views about the central place of the common law in English history and government, and appear to have been intended for a wide audience; while the cases themselves are a fundamental key to the rapidly evolving state of the law in a period that saw high levels of litigation on all kinds of subjects ranging from slander to the rights of small land-owners and the powers or urban corporations to regulate trade or personal behaviour. Though not always either an easy read or as systematic as their title suggests, the Institutes nevertheless became the essential starting point for countless generations of law students.
Most of the activity and writing for which Coke is remembered came after 1603, the terminal date of Allen Boyer's scholarly and readable biography, but the book is written with a keen eye towards explaining the intellectual and personal characteristics that made the younger Coke the man he would become. Specialists will be interested to learn that Coke’s father was a common law attorney, a member of the so-called “lower branch” of the legal profession, rather than a barrister or minor country squire, and these relatively modest origins, along with the fact that his father died when he was young, no doubt explain some of the acquisitiveness that was a feature of Coke’s character. On the whole, though, while Boyer’s book is accurate in detail, it is the best biography of Coke yet to be produced, less because of the new information it uncovers than because of the thoughtful and creative way he uses what is known. The general approach is to set critical aspects of Coke’s life, such as his education, his East Anglian origins, his religious beliefs, his personal connections, his legal practice, and his government service, within a context based on the most up-to-date historical scholarship available on the relevant subject. Sometimes, when Coke’s part in a story is not all that well documented, as in the chapters that cover the last years of the reign and the accession of James I, this seems to produce a somewhat rushed and telegraphic quality in the prose. In other places the connections can seem tenuous, and I found the chapter on the so-called great law cases that Coke was involved in amongst the least original, perhaps because Boyer found it difficult within the scope of the book to develop the overall legal and professional milieu as fully as it might have been. These quibbles aside, however, Boyer’s careful and shrewd approach also produces important results.
Throughout his lifetime, Coke’s close association with leading families in Norfolk was a benefit to his career, but his own land-holdings and the East Anglian origins of much of his work at the bar also brought him into contact with the notoriously litigious small land-holders and merchants of what was then one of the most economically advanced parts of the realm, a fact that helps to explain how he seems effortlessly to have developed an interest in such a wide range of important legal questions. Like countless other Elizabethan boys, when Coke attended grammar school in Norwich, he came into contact with Cicero, Latin rhetorical techniques, and the idea that the rule of law was the principal bulwark against tyranny, all of which were later reflected in his approach to the science of jurisprudence. During his years at Cambridge (1567-1570), he appears to have been taught by John Whitgift, who was the Master of Trinity College, and who later became archbishop of Canterbury. But Coke also had a link through marriage with another important Cambridge figure at this time, Thomas Cartwright, Whitgift’s great antagonist and the leading English advocate of Presbyterianism, who was subsequently deprived of his professorship and then prosecuted in the court of Star Chamber for his dissident activities.
The clashes between Whitgift and Cartwright, and the positions they represented, were central to the politics of the later Elizabethan period. Boyer develops their significance for Coke by pointing out that one of his nine sisters, Anne, married his Cambridge classmate, Francis Stubbes. Anne and Francis were prominent and active members of the Godly party; in addition, Francis’ brother, the barrister John Stubbes, was the victim of a notorious judicial mutilation (having his right hand chopped off) as a result of having published a pamphlet that was critical of the marriage Queen Elizabeth was considering with the French Duc of Anjou in the late 1570s. Although Coke’s personal religion seems to have been distinctly conformist — anti-Catholic and pious — rather than radical, many of his Norfolk associates were much more sympathetic to Puritanism than he was, and it would appear that an attack on the local church courts he made while riding the assize circuits in the early 1590s reflected a dislike for clerical pretensions that was a foretaste of the jurisdictional conflicts with the churchmen that he led in the early 1600s.
No less important, this somewhat paradoxical, but not untypical, combination of Protestant zeal and anti-clericalism was also an important ingredient in Coke’s approach to the history of the common law, which famously saw it as having a timeless history that stretched back into the dim mists before the Conquest of 1066. In his classic, but now seriously outdated study, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW (1957), J. G. A. Pocock memorably described Coke’s approach as typical of what he called the “common law mind.” Instead, Boyer shows convincingly that Coke’s thinking should be understood through its close association with the attempts that had been made by the circle of Elizabeth’s first archbishop of Canterbury, Matthew Parker (also an East Anglian), to validate the post-Reformation religious settlement by showing that the history of the “primitive church” in England pre-dated a medieval papal usurpation, which the English people had long struggled against, but which had only been overthrown by Henry VIII in the 1530s. Coke’s legal history had a polemical purpose that was much the same, and although Boyer fails to mention the special significance this had after 1603, when James VI of Scotland became king of England and proposed a union of his two kingdoms that might have included a mixing of their laws, he does usefully show that Coke was much less careful and convincing as an historian than he was as a lawyer. In any case, if Coke had little knowledge of the true history of feudal tenures, as Pocock asserted, that was largely because Coke’s historical and legal purposes never led him to consider them in any detail.
Allen Boyer writes primarily as a biographer and historian rather than a political scientist or lawyer, but his book will be an indispensable starting point for those wanting to better understand Coke’s works and his legal and political ideas. Boyer also gets as close as anyone ever has to explaining a complex, and not always likeable personality, and he does so by showing how Coke’s unique character nevertheless displayed many traits that are recognisable as features of the age. A handsome man, who loved good clothes, Coke’s first marriage was notably loving and successful, while his second, to the rich widow of the courtier Sir Christopher Hatton was notoriously, and publicly, tempestuous. Coke could be a scourge to traitors, and he hated Catholics, but the Latin epitaph on his grave claims that he himself shed more tears than the convict when he sentenced a felon to death. Immensely learned, and an assiduous note-taker, his court-room manner included “histrionics, bombast and abuse.” Possessing tremendous energy, he was sometimes described as a long-winded speech maker, and his enemies accused him of liking the sound of his own voice so much that he never listened carefully to what anyone else had to say. It is ironic that there is probably no king in English history with whom he could have had more in common than James I, who dismissed him from his beloved chief justiceship and thereby helped to make him a hero of English liberty.
POCOCK, J. G. A. 1957. THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY. Cambridge: Cambridge University Press.
2003 by the author, Christopher