5. Sir Edward Coke’s resurrection of Magna Carta
On 28 April 1628 Sir Benjamin Rudyerd, M.P. for Downton, Wiltshire, told the house of commons:
I shall be very glad to see that good, old decrepit Law of Magna Charta which hath been so long kept in, and lain bed-rid, as it were, I shall be glad I say to see it walk abroad again, with new Vigour and Lustre, attended by the Six Statutes; For questionless, it will be a general heartening to all the people.1
Rudyerd was contributing to the parliamentary debates provoked by King Charles I’s arbitrary arrest and imprisonment of several individuals who had refused to subscribe to the forced loan which the king had attempted to exact, without parliamentary sanction, from certain of his subjects in 1627. To be precise, Rudyerd was urging the king’s opponents in the house of commons to accept a compromise. The king had offered to confirm Magna Carta along with the six supplementary statutes passed by parliaments during the reign of Edward III, between 1328 and 1368. These statutes had both amplified and readjusted Magna Carta to the changed circumstances of the fourteenth century.2 But the king would confirm these ancient bits of legislation only if his opponents sought no further, new restrictions on his exercise of his prerogative.
How had it come about that King Charles in 1628 sought to placate parliamentary opposition by offering a confirmation of Magna Carta, a royal document of the early thirteenth century, and its various fourteenth-century statutory elaborations and redefinitions? No English king had proposed defusing opposition in this way since Henry V in 1422, over two centuries before. And why were Magna Carta and the subsequent statutes suddenly being resurrected, Lazarus-like, from the sickbed to which Sir Benjamin Rudyerd thought the Charter had been confined for several centuries?3 The answers to these questions are neither simple nor obvious, but they are best approached through the works of Sir Edward Coke, sometime chief justice of the king’s bench and by 1628 incontrovertibly the principal legal mind in the parliamentary opposition to Charles.
Rudyerd’s account of Magna Carta’s antecedent moribundity was exaggerated. Sir John Baker has just published an enormous edition of readings on selected chapters of Magna Carta dating from the fifteenth and sixteenth centuries, the very period during which, according to Rudyerd, it had been bed-ridden.4 Readings were the educational lectures on statutory texts delivered in the Inns of Court to law students. These particular readings reveal that Magna Carta – Henry III’s reissue of Magna Carta of 1225, that is, which had ever since the thirteenth century been treated as the authoritative text – continued throughout those centuries to be a subject of considerable jurisprudential interest, despite its increasing obsolescence in practical terms.
That interest is hardly surprising, given that the Magna Carta of 1225 was the first item in the English statute book. Magna Carta was the foundational statute, as it were. It would therefore have been well known to all law students, even the most elementary or indolent. It is difficult to generalize, but the readings from this period suggest that Magna Carta was used by law lecturers in the Inns of Court mainly as a very familiar hook on which to hang explorations of instructive legal problems. Sometimes these were framed in terms of real cases, excavated from the Year Books, the records of interlocutory proceedings in court. Sometimes the cases were hypothetical, manufactured by the lecturer in order to raise some interesting legal conundrum. The readings ostensibly based on Magna Carta therefore in practice strayed a very long way from the first document in the statute book as they explored those problems. A chapter of Magna Carta did no more than provide the starting point. Or as Coke put it of recent law readings in general, they were ‘long, obscure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened they vanish away like smoake, and the readers are like lapwings, who seem to be nearest their nests, when they are farthest from them’.5 As this disparaging characterization suggests, Coke rejected such recent illusory and distracting elaborations, and presented himself as returning to the essentials of the text itself.
By the time he published this criticism of the practices of modern law lecturers, in his First Institutes (1628), Coke had developed what was for centuries and in many respects still remains the most influential assessment of English legal history. For reasons explored elsewhere, he presented the fourteenth and fifteenth centuries – the period of the Year Books, and of Thomas Littleton, whose great work on land law was the subject of Coke’s First Institutes – as English law’s golden age. In that period, he erroneously asserted, readings had still been cited frequently in court proceedings, because, by inference, they were then still of use to legal practitioners. They had not yet degenerated into the deceptively irrelevant academic exercises of recent times, which were of no use at all to lawyers engaged in court proceedings, the context in which Coke considered English law was most effectively formulated. He presented himself, as mentioned earlier, as restoring or purifying the currently debased law. But his interpretation of English legal history had been fully formed long before he wrote, in 1628, this disparaging comment about modern readings. He had begun to sketch his interpretation in the readings that he himself wrote during Elizabeth I’s reign. He had greatly elaborated them in his artful prefatory essays to the volumes of his Reports, which he started to publish in 1600.6
The Reports printed what he presented as transcripts of jurisprudentially key court cases from the preceding forty years. They were intended as a definitive substitute for the now defunct sequence of Year Books, which had expired (for reasons Coke never addressed) by the mid sixteenth century. His first elaborate preface is that to the Third Reports, published in 1602, and the last to the Tenth Reports, published in 1614. These prefaces develop an account of English law as both immemorial and continuous. They were written in an engaging English prose, their style of reasoning is artfully whimsical, and they require little legal knowledge on the part of readers. They were, in other words, intended for a wide, lay as well as a legally learned, audience. Their account of the history of English law was intended to shore up that law, and therefore the liberties which were considered to be grounded in it, first against James I’s early threats of Union between his English and Scottish kingdoms, including a Union of the respective legal systems of those two kingdoms. The consequence of such a legal Union was widely accepted to be the abolition of English common law, and the liberties that English law was deemed to embody. Second, and more broadly, even as the threat of Union between England and Scotland receded, Coke was seeking to forestall the new king’s various devious attempts to sidestep parliament.
In the preface to Eighth Reports, published in 1611, Coke presented the Magna Carta of 1225 as the first surviving written summary of English law in statutory form. There was nothing novel or unconventional about this. It was in accord with English legal tradition reaching back to the late thirteenth century; but Coke here greatly elaborated it. He knew that Henry III’s Charter was a confirmation of John’s of 1215, the text of which he had not yet bothered to try to excavate, because that was not what was in the statute book; but he traced the tradition of the royal charter of liberties granted to the king’s subjects back through Henry II’s coronation charter in 1154, Stephen’s coronation charter in 1135, and Henry I’s coronation charter in 1100, to William the Conqueror. William the Conqueror had not issued a coronation charter, but, according to some thirteenth- and fourteenth-century chroniclers and a twelfth-century apocryphal law code which Coke accepted as authentic, the first Norman king had summoned an assembly of the English nobility which had summarized existing, indeed immemorial, English law, labelled as ‘the lawes of King Edward’. This label meant not that these laws were Edward the Confessor’s own legislation; rather they were the existing English laws which Edward the Confessor had endorsed, and which William the Conqueror, in the wake of his conquest of England, was in turn confirming. These laws, compiled by an assembly of the nobility under William I, had been made ‘into a Magna Carta (the ground-worke for all those that after followed)’.7 Henry III’s Charter of 1225 was simply the first extant statutory exemplification of that ancient, indeed immemorial English law, embodied after the Norman Conquest in successive Magnae Cartae, issued by successive kings. Coke first published this analysis in 1611, in the preface to Eighth Reports. But it was built on his much earlier, briefer sketches of English legal history, preserved in his extant readings written during Elizabeth I’s reign, and amplified above all in the preface to Third Reports (1602) and the substantial report of Caudrey’s Case which he had included in Fifth Reports (1605). Nevertheless, the central role in English legal history which he now attributed in print to Magna Carta was new to the preface of Eighth Reports of 1611.
This did not, however, constitute Coke’s first detailed written consideration of Magna Carta. Already in Michaelmas Term 1604, Coke had inserted into one of his manuscript notebooks – the sources for all his Reports on individual court cases – a memorandum on Magna Carta chapter 29, that chapter of 1225 Magna Carta which elided chapters 39 and 40 of John’s Charter of 1215.8 This unprinted memorandum does not place Magna Carta in an historical context, as Coke would do in the preface to Eighth Reports. Perhaps it does not do so because he had not yet in 1604 realized how Magna Carta could be made central to his history of English law, or perhaps just because the memorandum was addressed to legal professionals, rather than also to the wider, unlearned audience to the prefaces of his Reports. In it Coke drew a connection between this chapter of Magna Carta and that early Tudor invention, the writ habeas corpus ad subjiciendum, an order to ‘produce the body … to undergo [whatever our court should order]’.9
Originally, habeas corpus had been an expression of royal prerogative – an instruction in the name of the monarch to produce any prisoner, whoever currently held him in custody, in practice most often a royal councillor or one of the conciliar courts, themselves acting on the basis of the royal prerogative. Prerogative was thus used to trump prerogative, not in order to liberate a prisoner, but to bring him before the court issuing the writ – in the particular case of habeas corpus ad subjiciendum, the court of the king’s bench. Yet because the writ specified that it had to be returned with the date and cause of detention, it afforded that court an opportunity also to review the justification for imprisonment, and therefore at least potentially to release the prisoner, to set him at liberty. By connecting the writ with this chapter of Magna Carta in his memorandum, Coke was transforming this mechanism for transferring a prisoner from the custody of some other agent of the king into the custody of the court of the king’s bench. He was transforming it into a right of the king’s subject to contest arbitrary imprisonment at the king’s command. In Coke’s view this Tudor innovation could provide the remedy for infringement of chapter 29 and the supplementary statutes which neither Magna Carta itself nor the statutes had provided. In other words, it defined the ‘due process of law’ to which those statutes had referred, although they had never spelled out what the term meant. Magna Carta had occasionally been invoked in the sixteenth century by those contesting their imprisonment,10 but so far as I can establish Coke was the first lawyer to base habeas corpus on chapter 29 of Magna Carta. The move was prophetic, in the sense that he wrote this memorandum twenty-three years prior to the Five Knights’ Case of 1627, in which habeas corpus would be treated by counsel for the imprisoned knights as the means for enforcing chapter 29 of Magna Carta, with the aim of assessing the legality of the king’s actions according to what this very chapter of Magna Carta termed ‘the law of the land’.11 In 1604 Coke was King James’s attorney general, and his inventive use of habeas corpus in conjunction with Magna Carta and the fourteenth-century statutes on due process might be seen as a novel device to enable the common law judges, acting of course in the king’s name, to keep certain prerogative jurisdictions in check – an objective which continued to remain close to Coke’s heart.12 But he had started publishing his Reports as attorney general under Queen Elizabeth. Her successor’s behaviour as king had exacerbated, not allayed, the concern which Coke had already felt prior to 1603. In Coke’s case, being a senior law officer did not necessarily make for deference to the royal will. Indeed, rather the contrary. In the memorandum he already in 1604 made grandiloquent claims which suggested that Magna Carta chapter 29 (and by implication the habeas corpus which he here connected with it) might have a much wider application: the chapter, he alleged, protected ‘everything that anyone has in this world, or that concerns the freedom and liberty of his body or his freehold, or the benefit of the law to which he is inheritable, or his native country in which he was born, or the preservation of his reputation or goods, or his life, blood, and posterity’.13 As such, moreover, it was ‘merely a declaration of the old law of the land’ – the law which had already been old at the time of Magna Carta, and which had been explicitly invoked in chapter 29.
That brief characterization – not in itself innovatory – might be interpreted as prompting Coke’s later incorporation of Magna Carta into the scheme of English legal history which he had first outlined in any detail (but without any reference to Magna Carta) two years beforehand in the preface to Third Reports. In the terms of his later disparagement of recent readings in the Inns of Court, he was not a jurisprudential lapwing, farthest from his nest when he appeared closest to it; nor was he creating a smokescreen which obscured the real issue.14 On the contrary, he had identified the foundation for property, liberty, and even life itself in this very chapter of the earliest extant English statute.
If Sir Benjamin Rudyerd had ever read Coke’s memorandum, which seems unlikely – if it circulated at all, it did so in manuscript – he might have identified it as the point at which Magna Carta had begun to stir in its centuries-old sickbed. It is, however, highly likely that Sir Benjamin would have read the preface to Eighth Reports, not least because of the role that Magna Carta came to play in political debate in 1628. In that year Magna Carta was central to the Petition of Right, the device adopted, at Coke’s instigation, by the parliamentary opposition in order to circumscribe Charles I. In the Petition of Right Magna Carta was explicitly conjoined with habeas corpus, and the Five Knights’ Case of the previous year was explicitly invoked.15 To this Petition King Charles was eventually forced to give his grudging assent. It was the sort of measure he had sought to preempt by offering to confirm Magna Carta and the supplementary statutes, on condition that there was no further elaboration. The Petition was just the sort of elaboration he had sought to fend off.
Coke was famously dismissed as chief justice of the king’s bench by James I in 1616. By that point he had published the last volume of Reports which he would see through the press. After his dismissal he was ordered to make many amendments to the published texts of the Reports – an order to which he responded as provocatively as one would expect of him.16 He was already, however, at work on his new and even more ambitious jurisprudential project, his Institutes. His aim in the Institutes was to produce the most comprehensive written survey of English law ever, a replacement for (and by implication an improvement on) the great thirteenth-century law book known as Bracton, which still remained at that point the most comprehensive and detailed statement of English law in existence.
His choice of title for his new work was obviously an allusion to the sixth-century Roman emperor Justinian, whose Institutes, one of the four constituent parts of the Corpus Iuris Civilis, had also been presented as a legal text-book. Coke’s Institutes bore more than a passing resemblance to the Corpus Iuris Civilis in another sense, but to the Corpus in the form it assumed in the later middle ages onwards, not to the sixth-century original: it consisted both of the texts of authoritative sources of law, and Coke’s extensive glosses on them. However, in Coke’s opinion the nature of his gloss was yet another manifestation of the superiority of English jurisprudence over Roman:
their glosses and commentaries are written by doctors, which be advocates, and in a manner private interpretations; and our expositions or commentaries upon Magna Charta, and other statutes, are resolutions of judges in courts of justice in judiciall courses of proceeding, either related and reported in our books, or extant in judiciall records, or in both, and therefore being collected together, shall … produce certainty.17
Such certainty, based on law forensically defined by judges in public, was inconceivable in Roman jurisprudence, which by contrast with English was based on the private opinions of jurists and advocates. Coke proclaims it in the preface to Second Institutes, the volume which glossed at length certain statutes which Coke considered most significant, beginning, like the statute book, and as Coke underlined, with Magna Carta, and ending in the reign of James I.
The prefaces to all volumes of Institutes other than the Second are terse; the volume which follows the preface is allowed to speak for itself. Only that to Second Institutes is substantial and discursive, and in that sense comparable to the prefaces to the Reports. However, the only statute which this preface discusses explicitly is Magna Carta; the subsequent thirty-eight statutes included in the volume receive no explicit mention. Among the thirty-eight are included Edward I’s Confirmationes chartarum of 1297 and his Articuli super chartas of 1300. Coke’s gloss on Magna Carta, like his glosses throughout the first two parts of the Institutes, is designed for use by legal practitioners. Its focus is on the detailed interpretation of particular passages in the texts, by reference to records of forensic proceedings, primarily from the Year Books, and other sources which Coke regarded as authoritative. This format means that there is no opportunity to develop a sustained argument, even on the modest scale of the prefaces to the Reports. The focus is on particular textual detail. The preface to Second Institutes is therefore the most obvious occasion in the Institutes when Coke steps back from minute textual examination in order to draw wider lessons.
In it he repeated almost verbatim what he had said in that to Eighth Reports, which in turn echoes the memorandum of 1604: Magna Carta was ‘for the most part declaratory of the principall grounds of the fundamentall laws of England, and for the residue it is additionall to supply some defects of the common law; and it was no new declaration’. He acknowledged, again, that King John had issued a Magna Carta in 1215, though Coke also admitted that John had attempted to wriggle out of it, by claiming that it had been issued under duress. That was not, however, true of Henry III’s Magna Carta of 1225. By virtue of the authorities Coke cited, and the earlier royal legislation he invoked, he sought to demonstrate that insofar as the 1225 Magna Carta did not simply endorse then current common law, it reinstated what had recently been disregarded or contravened, by King John and King Richard, whose reigns had been ‘troublesome and irregular times’ during which ‘divers oppressions, exactions, and injuries were incroached upon the subject in these kings names’. He established what ancient practice had been not by reference to court records – for there were none extant – but to late thirteenth and fourteenth-century books – the Modus tenendi parliamentum and the Mirror of Justices – both of which affected to be pre-Conquest works, in the former case dating from the reign of Edward the Confessor, in the latter from that of King Arthur. Coke devotes most attention to chapter 29, the chapter which had been the main focus of his attention in the memorandum of 1604: ‘as the goldfiner will not out of the dust, threds, or shreds of gold, let passe the least crum, in respect of the excellency of the metal: so ought not the learned reader to let passe any syllable of this law, in respect of the excellency of the matter.’18 He attempts to establish a genealogy of cases in support of the connection he had drawn between the chapter and habeas corpus.
But the Second Institutes was not published during Coke’s lifetime. James I had ordered an investigation into Coke’s Reports, and Coke had thumbed his nose at the suggested revisions.19 In 1621 several of Coke’s books were confiscated – in 1628 he told the house of commons he would give £300 to get the most precious manuscripts back.20 In that year he published his First Institutes, a massive gloss on Littleton’s Tenures, and in the brief preface gave notice that he already had in hand a similar treatment of Magna Carta. In view of the political events of that year, he was clearly needling his sovereign; and successfully so. Coke’s books and manuscripts were searched again in 1631, not long after Sir Robert Cotton had been barred from using his own library, because the material he was unearthing from his books was considered by the authorities to be too subversive. The king now ordered that every effort should be made to ensure that Coke’s promised commentary on Magna Carta did not ‘come forth’.21 In 1634, as the resurrector of Magna Carta himself lay on his death-bed, the king’s agents rifled through his books and papers in the study below. A trunk full of books and papers was dispatched to Charles in person, at Bagshot, ‘& there broken open by his Majesty’. Charles was evidently unwilling to trust anyone to do that job for him. Inside the box was a smaller trunk, which did indeed contain ‘an exposicion upon Magna Carta and other ancient statutes’22 – the draft of Second Institutes to which Coke had menacingly referred in the preface to First Institutes. In 1641 the house of commons voted that this, together with the drafts of Third and Fourth Institutes, should be released and published, and chose to do so on the very day of the earl of Strafford’s execution.23 That decision exemplified the shibbolethic status which Coke’s commentary had achieved, for both the king and his opponents; it had, as Sir Benjamin Rudyerd had prophesied to the house of commons in 1628, become ‘a general heartening to all the people’.
But Coke would have been horrified by the use to which his work would be put by the end of the 1640s. In Behemoth, Thomas Hobbes characterized the preliminary conflicts of the 1620s and 1630s thus: ‘it were a Warre … yet there was no bloodshed; they shot at one another nothing but paper’.24 Coke never envisaged the shift from printed legal argument to firearms and, ultimately, to the axe wielded by the executioner of the king at the behest of what purported to be an English law court sitting in, of all places, that legal Holy of Holies, Westminster Hall. Nevertheless his historical elaboration of the traditional doctrine of English legal continuity, at the heart of which he came to place Magna Carta, ended up playing a very important part in fashioning the weapon with which the veil of the temple was rent in twain. It also, both before and after, became foundational to the liberty of the subject, not only in England, but throughout the English-speaking world, and eventually beyond.
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1 Commons Debates 1628, ed. R. C. Johnson et al. (4 vols., 1977–97), iii. 128.
2 F. Thompson, Magna Carta: its Role in the Making of the English Constitution 1300–1629 (Minneapolis, Minn., 1948), pp. 9–32; J. C. Holt, ‘The ancient constitution in medieval England’, in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of the Rule of Law, ed. E. Sandoz (1993), pp. 22–56.
3 G. Garnett, ‘Magna Carta through eight centuries’, Oxford Dictionary of National Biography (2015) <https://doi.org/10.1093/ref:odnb/107251> [accessed 22 March 2018].
4 Selected Readings and Commentaries on Magna Carta 1400–1604, ed. J. H. Baker (Selden Society, cxxxii, 2015).
5 Edward Coke, I Institutes, fo. 280a–b.
6 This is a summary of the argument of G. Garnett, ‘“The ould fields”: law and history in the Prefaces to Sir Edward Coke’s Reports’, Jour. Legal History, xxxiv (2013), 245–84.
7 Edward Coke, Eighth Reports, p. v.
8 Baker, Selected Readings, pp. 394–402.
9 P. D. Halliday, Habeas Corpus, from England to Empire (Cambridge, Mass., 2010), pp. 16–18; J. H. Baker, An Introduction to English Legal History (4th edn., Oxford 2002), pp. 146–7.
10 J. H. Baker, ‘Personal liberty under the common law 1200–1600’, in his Collected Papers on English Legal History (3 vols., Cambridge, 2013), ii. 871–900, at pp. 893–9.
11 Thompson, Magna Carta, pp. 326–35; J. S. Hart Jr., The Rule of Law, 1603–1660: Crowns, Courts and Judges (Harlow, 2003), pp. 122–30.
12 Baker, Selected Readings, pp. xc–xci.
13 Baker, Selected Readings, p. 394.
14 Above, p. 000.
15 Thompson, Magna Carta, pp. 335–9.
16 Garnett, ‘“The ould fields”’, pp. 282–3.
17 Edward Coke, The Second Part of the Institutes of the Lawes of England (1642) (hereafter Second Institutes), ‘A Proeme’.
18 Second Institutes, fo. 57a.
19 Garnett, ‘“The ould fields”’, p. 282.
20 Commons Debates 1628, iii. 166.
21 The National Archives of the U.K., SP 16/183, 18, fo. 29.
22 London, Lambeth Palace Library, MS. 943, 371–2.
23 Garnett, “The ould fields”’, p. 284.
24 Thomas Hobbes, Behemoth, ed. P. Seaward (Oxford, 2010), pp. 251–2.