Sir Edward Coke Born 1552 - Died 1634
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Sir Edward Coke, an eminent English lawyer, was born in Feb. 1st 1552 at Mileham in Norfolk, the son of a barrister, and was educated for a career in the law. After finishing his education at Trinity College, Cambridge he went to London, and Clifford's Inn, he entered the Inner Temple and was called to the Bar in 1578, his reputation and practice rapidly increased. He was chosen recorder of the cities of Norwich and of Coventry, knight of the shire for his county. In 1589 he entered the House of Commons as Member for Aldeborough, and in 1593 became Speaker for the House . |
His early public life saw him as the Queen's mouthpiece in the Commons and the Crown's advocate against treason: then, as judge, he entered a phase of opposition to the Crown's prerogative
His rule in the House as Crown spokesman was effective - he restrained the members from debating ecclesiastical matters which the Queen felt to be her own sole concern.
1593 began Coke's long struggle against his rival. Francis Bacon. Each was
proposed for the post of Attorney General - Coke won in 1594 . As Crown advocate he was an ardent servant of royal
power - As such he conducted the prosecutions for the crown in all great state cases, notably he indicted Essex
and Southampton after their abortive rebellion in 1601, struck at the ' traitor ' Sir Walter Raleigh in 1603, and prosecuted the Gunpowder Plotters.
Then, in 1606, he became Chief Justice of the Common Pleas. Before, he had been a servant of the Crown and Parliament
now as a Judge he had the power to make law himself, by precedent in the trial of Common Law cases. But the King
reserved to himself the power to overrule or hamper cases which he felt ware dangerous to his prerogative. Thus
Coke was forced to attempt to define the limits of the King's power against the procedure of law . In 1610 he gave
the opinion that the King could not, by proclamation, change the law.
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By standing with the King, Coke's old adversary Bacon saw a way to profit at Coke's expense. He maneuvered for Coke's promotion to the King's
Bench a post which commanded higher prestige but a lower salary, and would, so Bacon reasoned, give Coke less freedom.
But Coke maintained his line against the King's arbitrary powers. In the case of one Peacham, a Puritan suspected
of preaching treasonable sermons, he questioned the Kings right to sound the opinions of judges on the man's guilt
before the case came into court It became a trial of strength between Coke as Chief Justice and Francis Bacon as Attorney General. Coke yielded to royal pressure, but still gave an opinion against the Crown. |
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A little earlier, in 1608, Coke had relied on the medieval doctrine of the supremacy of law: " The King is subject not to men but to God and the law." But if the King was subject to the law, could the King himself act as a judge? Coke said no. Disputes between parties on a legal matter should be determined by a court of justice, according to the law and custom of England. According to one account: " His Majestie. . . looking and speaking fiercely with bended fist offering to strike him, which the lord Coke perceiving, fell flat on all fower,"
His main blow was struck against the Court of Chancery, always held to be the seat of the King's own especial power.
In 1616 he went too far, he challenged the Crowns award of pluralities in Church benefices. In November 1616 he
was dismissed from office, though not exiled from public life for he was readmitted to the Privy Council in 1617
- the year in which Bacon became Lord Chancellor.
His principal works are Reports, from 1600 to 1615; Institutes of the Laws of England, in four parts; the first of which contains the celebrated commentary on Littleton's Tenures ('Coke upon Littleton') ; A Treatise of Bail and Mainprise, Complete Copyholder.
In 1618 he became Chief-justice of the Court of King's Bench; but his rough temper and staunch support of constitutional liberties brought him into disfavour with King James and his courtiers. In the last years of James I's reign Parliament was gathering for a concerted attack on the Crown. Coke was a leading figure in drafting the Protestation of December 1621 which claimed that the liberties, franchises, privileges, and jurisdictions of Parliament are the ancient and undoubted birthright of the subjects of England. In 1621 James dissolved Parliament and had Coke committed to the Tower, and soon after expelled from the privy-council and his confederates imprisoned . After seven months in the Tower Coke was released, and took his seat in James's last Parliament as M.P. for Coventry. He had a unique influence on the growth of the Common Law by recording precedents and establishing traditions , this contribution alone made Coke a great man, his work in Parliament for the extension of the Members rights and for the rights of every Englishman was even greater.
James reign had seen merely the opening rounds of parliaments moves against the Crown. In Charles I. first Parliament Coke opened maneuvers by attacking Buckingham's mismanagement of the navy. In, 1628 Coke was chosen member for Buckinghamshire, and greatly distinguished himself by his vindication of the rights of the Commons, his Bill of Rights became the basis of Parliament's famous Petition of Rights - a direct attack on the King's arbitrary rule.
This was the last of his public acts. On the dissolution of the parliament he retired to his seat in Buckinghamshire, he died, September, 3rd 1634 at Stoke Poges.
The results of the dispute was bloody. Charles I was executed and James II abdicated before the principles of a limited monarchy and an independent judiciary were accepted.
The basic concern of the Common Law is the protection of the rights of the individual - against other individuals
as well as against the State. Political freedom is rooted in the Common Law and the extent to which we still enjoy
freedom of speech, freedom from arrest, and freedom of association with others to achieve our legitimate ends,
rests on the oldest of Common Law principles.
Other countries whose inheritance is Roman, not English, law are less fortunate. In Scotland some Roman law principles
operate, but they operate within the context of the English Common Law. Over vast areas of the globe, however,
there is no law that recognises the liberty of its subjects as an Englishman would understand it. Judges insist
that the State shall show clearly and conclusively that legal authority exists in each case before a man can be
imprisoned, deprived of his property, or made to suffer in any way. With such securities there is a built-in bias
in Common Law in favour of the preservation of freedom. The most remarkable characteristic of the Common Law is
the continuity of its principles - in part because these principles are about fundamental relationships.
The nature of this intervention is crucial; if judges lean too much towards the protection of the individual's
rights, then society cannot function, for we are all inter-dependent; on the other hand, if judges lean too much
towards upholding the power of the State, the individual will lose his freedom. So the independence of the judges
is essential
In 1945 the Courts had cause to up hold this principle. Regulation 12 of the 1945 Purchase Tax Regulations conferred upon the Customs and Excise Commissioners the right to assess the amount of tax on anyone failing to make a return. The Courts held that this regulation was invalid, since it attempted to confer on the Commissioners the powers of a judge.
In 1939, the principles of the Common Law were again demonstrated, when Defence Regulations were made giving great and necessary powers to the Government for the waging of the war. Regulation achieved notoriety, for it empowered the Home Secretary to imprison without trial any person he had reasonable cause to believe to be of hostile origin or associations, A Mr. Liversidge was imprisoned and brought an action for false imprisonment against the Home Secretary a remarkable proof of the strength of the Common Law, that in wartime a minister of the Crown could be sued by a prisoner The question before the Courts was whether the Home Secretary was obliged to disclose the grounds on which he had "reasonable cause to believe". By a majority in the House of Lords, it was decided that he was not .
Parliament will always have the last word as Parliamentary Act's can be passed with the sole intention of changing a decision of the Courts .
