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Response to Review of Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616

‘I shall ever be as ready to maintain the King’s prerogative as any man’.(1a) Given his posthumous reputation as a defender of the rights of the subject, Sir Edward Coke’s claim in the parliament of 1628 seems sly at best, an outright falsehood at worst. Coke, after all, made this assertion in the context of arguments that pointed to a very different conception of the political order from that shared by Charles I. But this does not necessarily mean that Coke was dissimulating. As Daniel Gosling’s review describes, Sir Edward Coke and the Reformation of the Laws follows the story of Coke’s intellectual development up to 1616 in order to rethink his understanding of the law and the prerogative. In doing so, the text explains how individuals could view themselves as thoroughly loyal to the monarch while opposing a government whose actions seemed to them increasingly arbitrary. At a more general level, the book is an inquiry into the workings of the early modern state and the complexities of its legal apparatus. I am thankful for Gosling’s thoughtful review and will only highlight a few points of debate that this study raises.

By recovering new material from manuscript sources, the book attempts to improve our understanding of Coke while urging a wider historiographical reconsideration. In recent years the historiography has occasionally come close to reducing Coke and the common law culture in which he was a leading figure to caricature. Imbued with the shared mentality of ‘ancient constitutionalism’, Coke and other angry common lawyers swarmed prerogative courts and arbitrary monarchs to assert the ‘rule of law’. This view relies on a number of assumptions, especially the shared intellectual mindset among ‘common lawyers’ and their obsession with constitutional questions from the reign of Elizabeth I.

The book opens debate by presenting a very different intellectual landscape within which Coke and other common lawyers worked. I stress worked, because as a young lawyer and then law officer, Coke’s work was focused on questions of property and contract law, and eventually also the imperative to defend the government from those who challenged or undermined its authority. Approaching the development of Coke’s jurisprudence from the perspective of the pragmatic, on the ground problems he faced, reintegrates into his experience as a lawyer the effects of the Protestant Reformation, and the 16th-century transformation of the legal system analyzed by J. H. Baker.

The book represents common law culture as one of creative debate, much diversity of thought (both subversive and authoritarian), and even self-criticism. In this regard, James I’s occasional disparagement of the common law did not arise entirely from his Scottish background or familiarity with the civil law. James only had to accept conventional English criticisms of the common law. This was clearly a frustrating point to Coke, who believed, as did many of his fellow reformers, that their projects strengthened royal authority by reforming problems in the legal system. The analysis accords with Paul Halliday’s writing on habeas corpus, by examining how Coke and the common law judges represented their actions as ultimately in harmony with the royal prerogative. Yet the closing chapters also explain how Coke’s pattern of thinking about royal authority could paradoxically lead him to limit its specific application, placing him on a trajectory to 1628.

Methodologically, the book asserts that ideas and ways of thinking developed in one context, such as restricting vexatious litigants, became operative in the larger constitutional context. By proceeding in this way, the book addresses the progression of Coke’s thinking over time. Coke’s jurisprudence was not a rigid system, but an evolving response to shifting conditions – largely arising from the harm that subjects could do to each other – that eventually reached constitutional proportions.

The book argues for the perception of reformers such as Coke, rather than the reality of a potentially dysfunctional legal system. The actual experience of the majority of litigants within the English legal system is beyond the scope of this study, and an issue that other researchers may take further, building on the work of Christopher Brooks. On the other hand, the chapter on fen drainage was an attempt to illustrate how the themes developed in the book, especially the differences among common lawyers (who could argue for expropriation as well as security of property), actually appeared in action.

Since the book is intended to bridge technical aspects of legal transformation for non-specialists, and explain how these changes operated systematically, my occasional lack of details about some individuals is a regrettable omission. Moreover, Gosling is right that my goal was not to reproduce the fine biographical work of Allen D. Boyer and others. Rather than a comprehensive history of Coke’s career prior to 1616, the book’s focus is instead an analysis that questions the binarisms that have structured much of the historiography of early modern English political and legal history: prerogative versus common law; constitutionalism versus absolutism. Only then can Coke’s incongruous statement in 1628 make sense.

Notes

  1. Commons Debates, 1628, ed. Robert C. Johnson et al. (New Haven, CT, 1977), vol. 2, p. 100.Back to (1a)