In the latest in our ongoing series celebrating the anniversaries of Magna Carta and Simon de Montfort’s Parliament, Professor George Garnett discusses the importance of Sir Edward Coke’s 17th century commentary on Magna Carta…
Sir Edward Coke’s role in English common law is widely acknowledged to be commensurate with that of his near contemporary William Shakespeare in English literature. But in an important sense his influence was far greater. Shakespeare scarcely intruded into the purview of the authorities, which is one of the reasons why it is so difficult to reconstruct his biography. Coke, by contrast, not only held, successively, most of the most important judicial offices in the kingdom, but also, after his sacking by his sovereign in 1616, became the principal legal intelligence behind the burgeoning parliamentary opposition to Stuart innovation. The fury which Coke as a judge had occasionally provoked in James I – on the most celebrated occasion, by invoking the thirteenth-century law book Bracton – turned to fear on the part of both James and his son and successor Charles I when Coke had ceased to be a judge. And what most alarmed Charles was Coke’s revelation, in the preface to his First Institute (1st edn, 1628; 2nd edn, 1629) – a commentary on Littleton’s Tenures – that he already had in hand, in his Second Institute, a commentary on Magna Carta.
This needling of his monarch had the desired effect. When Coke lay on his deathbed in 1634, Charles sent his agents to ransack Coke’s study below. They confiscated the manuscripts they found, and conveyed them direct to the king, who insisted on rifling through them himself – evidently, he did not trust anyone else to go through them for him. The confiscated materials were eventually released only in 1641, when the House of Commons voted for them to be published on the very day of the Earl of Strafford’s execution. The Second Institute was expeditiously published in 1642. It consisted of commentaries on a large number of statutes judged by Coke to be of particular significance, but it begins, like the Statute Book itself, with Henry III’s Magna Carta of 1225. Coke thought this particular commentary so important that, in his preface, he failed to mention any of his discussions of subsequent statutes. And indeed it would not be much of an exaggeration to say that Coke’s interpretation of Magna Carta set the terms of constitutional debate in England for the rest of the seventeenth century, and beyond. As he concluded his discussion of the chapter concerned with due process (cap. 29), in his view the most important chapter of all:
As the gold-finer will not out of the dust, threds or shreds of gold, let passe the least crum, in respect of the excellency of the metall; so ought not the learned reader to let passe any syllable of this Law, in respect of the excellency of the matter.
Yet curiously there has been no scholarly assessment of this first substantial and influential commentary on the text, the most substantial prior to William Blackstone’s. Coke’s unforgiving legalism and convoluted style have proved rebarbative, his handwriting is almost impossible to decipher, and few have hitherto had the courage to take on the substantial manuscript remains, most of which survive in the British Library, Cambridge University Library, and Holkham Hall, Norfolk, the seat of Coke’s descendants, where much of Coke’s library of printed books survives intact.
George Garnett is Professor of Medieval History at St Hugh’s College, Oxford. His many publications include a number on Magna Carta and Coke, including his lecture this January to the Inner Temple, Why Good Lawyers are such Bad Historians:
the Case of Sir Edward Coke; ‘The ould fields: law and history in the prefaces to Sir Edward Coke’s Reports’ in the Journal of Legal History xxxiv (2013), and his article for the Oxford Dictionary of National Biography ‘Magna Carta through Eight Centuries‘ (subscription required).
Professor Garnett is taking part in our ‘Making Constitutions, Building Parliaments’ conference, which will take place in London 30 June-3 July 2015. You can see all the latest news on the conference website, including information on two public lectures (full details on how to register for our public events are available here).
You can read all the posts so far in our ‘Magna Carta and Simon de Montfort’ series here. UK Parliament are also coordinating a series of events to celebrate the anniversary: ‘Parliament in the Making’. This includes ‘The Beginnings of that Freedome’ exhibition at Westminster Hall; the new digital arts project ‘Democracy Street’ and they invite you all to take part in ‘LiberTeas’ on June 14.