Origins of English Law


Sir Edward Coke  (1552-1634)

After the custom of the times, Coke wrote his Reports in Norman French, with pleadings entered in Latin. But the several Prefaces were, happily, in English, though tradition was served by printing the Latin beside it. Coke had early told Sir Robert Cecil that he wished “the cases could be as well understood as the Prefaces, and then they would both teach and delight” In his long life, Coke composed nothing more charming than these eleven Prefaces. Addressed to the student, they are at once learned, easy and warm – touched throughout with the fire of conviction. “There is no jewel in the world,” writes Coke, “comparable to learning; no learning so excellent both for Prince and subject as knowledge of laws; and no knowledge of any laws (I speak of human) so necessary for all estates and for all causes, concerning goods, lands or life, as the common laws of England. “Therefore, Coke begs, let not cases be committed ” to slippery memory, which seldom yieldeth a certain reckoning. In troth, reading, hearing, conference, meditation, and recordation are necessary.” (p. 506)

Each category would make up a volume, an Institute; together they should represent the whole law of England, spread upon paper for students to read and see. This and no less comprised Coke‘s aim. It was a double vision; Reports and Institutes complementary one to the other: the Institutes as authority, the Reports as illustration by actual practice in the law courts – what today we call case law. Coke‘s title took its meaning from the Latin” instituo – I instruct, I arrange and make order. ” I have termed them Institutes,” he wrote, “because my desire is, that they should institute and instruct the studious, and guide him in a ready way to the knowledge of the national laws of England.”  Justinian’s Institutes had long ago presented the Roman law; Coke‘s would define the native law and for the first time in its entirety, with past related to present, the old adapted to the new.

No one had attempted a picture so comprehensive, legal exposition on so grand a scale. Separate books of law existed, classics in their field. The Preface to Coke‘s Eighth Report (1601) had listed them, giving honor to each author: Ranulf de Glanvil  – dead four hundred years – the fruit of whose writing, said Coke, he himself had reaped; the great Justice Bracton, who in the thirteenth century had written Of the Laws and Customs of England; Chief Justice Sir John Fortescue, author of De Laudibus Legum Angliae; Judge Littleton of the Tenures, the subject of Coke‘s First Institute; Fitzherbert of the Natura Brevium; Judge Stamford, whose Pleas of the Crown had been quoted against Coke in Parliament.

Yet these great books were fractional and some were ancient; they could not give the quality of continuity. Coke’s scheme, despite its grandeur ( or because of it) was simple and wholly practical. Sir Edward was no doctrinaire, no Bodin or Hobbes, with a “theory of sovereignty” to present. Coke had his bias, it is true – a conviction, deep and strong, in favor of the common law. But he did not urge it as Bacon, for instance, would have urged a concept with brilliant introductory passages of persuasion. Coke defined the English law as simply as he could, then praised it with an equal simplicity: “The common law is the best and most common birth-right that the subject hath for the safeguard and defense, not only of his goods, lands and revenues, but of his wife and children, his body, fame and life also.” (p. 508)

From: The Lion and the Throne by Catherine Drinker Bowen, (Little, Brown, and Company, 1956.)