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Lord of the Law
The fathers of American independence founded their case on “that wonderful Edward Coke … masterful, masterless man,” who made two English kings bow to the common law
June 1957 | Volume 8, Issue 4
Coke at once assumed a leading part in the struggle. At 76 he stood up in his place with the sturdy confidence of an old man who has lived through trouble and danger and has seen bad days turn to better. It was for him and John Selden, the legal scholar, to explain to Parliament the meaning of lex terrae, the law of the land. “I will seek nothing out of mine own head,” Coke said, “but from my heart and out of Acts of Parliament…. The King cannot tax any by way of loans…. I’ll begin with a noble record, it cheers me to think of it. 25 Edward III; it is worthy to be written in letters of gold: ‘Loans against the will of the subject are against reason and the franchises of the land’ … What a word is that franchise ! It is a French word, and in Latin it is libertas.” Yet here in England a man’s person had become, it seemed, less secure than his goods. “It is against law that men should be committed and no cause shown…. It is not I, Edward Coke that speaks it but the records that speak it.”
Timid souls, or those less experienced, were for pleading with the King “in an humble manner.” The Lords framed a petition which included the words “a saving of the King’s sovereignty.” Coke stood out against it passionately—shed tears as he spoke, was overcome, sank to his seat and rose to speak again. “Take heed,” he said, “what we yield unto! Magna Charta is such a fellow that he will have no sovereign. I wonder this ‘sovereign’ was not in Magna Charta or the confirmation of it?…Our Petition … is a Petition of Right, grounded on acts of Parliament. Let us hold our privileges according to the law.” The whole story of the great Petition cannot be told here—how it was hammered out between the two houses, how passed, how King Charles slid round it at the first, and how in the end he consented in the ancient words, Soit droit fait comme il est desiré. Bonfires flared that night in London streets; from steeple to steeple bells told the joyful news. Coke’s work was done. He could retire, now, to the country and in the few years left to him write his Institutes of the Laws of England, correct the manuscripts of his remaining law Reports.
At the age of 82, Sir Edward died in his house at Stoke Poges. Even before he was gone, the King’s men rode out to search his papers, bring away what was pertinent and seal up his study. “He is held,” King Charles had said when he gave the order, “too great an oracle amongst the people, and they may be misled by any thing that carries such an authority as all things that he speaks or writes.” It was well that Coke, as he lay dying in the great curtained bed, could not hear the King’s men or know that they were near. They were thorough, ransacked study and library, took away the manuscripts of all four parts of Coke’s Institutes, the manuscript notes for two additional books of Reports, and, according to Coke’s grandson, “51 other manuscripts, with the last will of Sir Edward, wherein he had for several years been making provision for his younger grandchildren.”
Monarcha juris, they had called Sir Edward in the Commons. King of the law. Coke was no revolutionist, as Cromwell was who came after him, as Tom Paine was, or Thomas Jefferson. To define our debt to Coke is not easy. He never set foot on American soil. Yet what he said and did prepared the way. There beside the Thames, knights, citizens, and burgesses fought for rights which we in America fell heir to. In Westminster courtroom battles over procedure, jurisdiction, “right reason and the common law,” constitutional government found its way to birth. When the time came, we changed the face of this English constitution; amid the sound of guns we repudiated what we hated, adapted what we liked. Yet the heritage endured. No United States citizen can read Coke’s story without a sense of recognition. Perhaps it is not too much to say, a sense of gratitude.