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Edward Coke and the Institutes of the Laws of England

Institutes of the Laws of England by Edward Coke Ethics Trials American History Government History Law and Politics Social Studies

Edward Coke, a leading 17th-century jurist and expert on Common Law, wrote a series of works about the topic between 1628 and 1644.  The U.S. Supreme Court has cited to Coke's work in some of its landmark cases.

Coke's Institutes have four parts:

  • The First Part of the Institutes of the Laws of England, or, a Commentary upon Littleton.  It is also called "Coke on Littleton" or abbreviated "Co. Litt."

  • The Second Part of the Institutes of the Laws of England; Containing the Exposition of Many Ancient and Other Statutes.

  • The Third Part of the Institutes of the Laws of England; Concerning High Treason, and Other Pleas of the Crown and Criminal Causes.

  • The Fourth Part of the Institutes of the Laws of England; Concerning the Jurisdiction of Courts.

Coke—which is pronounced “Cook”—passionately believed in the right of personal freedom. Among other things, he wrote that “the liberty of a mans person is more precious to him, then all the rest that follow.”

Such positions resonated with America’s “Founding Fathers,” many of whom were lawyers. For Coke—who, for a time, was the Lord Chief Justice of the King’s Bench—“English Liberties” were like “branches” on a “tree of liberty.” Using his mid-17th-century language, Coke describes those nine branches:

Upon this Chapter [29], as out of a roote, many fruitfull branches of the Law of England have sprung…

This Chapter containeth nine severall branches.

1. That no man be taken or imprisoned, but per legem terrae, that is, by the Common Law, Statute Law, or Custome of England; for these words, Per legem terrae, being towards the end of this Chapter, doe referre to all the precedent matters in this Chapter, and this hath the first place, because the liberty of a mans person is more precious to him, then all the rest that follow, and therefore it is great reason, that he should by Law be relieved therein, if he be wronged, as hereafter shall be shewed.

2. No man shall be disseised, that is, put out of seison, or dispossessed of his free-hold (that is) lands, or livelihood, or of his liberties, or free customes, that is, of such franchises, and freedomes, and free customes, as belong to him by his free birth-right, unlesse it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and processe of Law.

3. No man shall be out-lawed, made an exlex, put out of the Law, that is, deprived of the benefit of the Law, unlesse he be out-lawed according to the Law of the Land.

4. No man shall be exiled, or banished out of his Country, that is, Nemo perdet patriam, no man shall lose his Country, unlesse he be exiled according to the Law of the Land.

5. No man shall be in any sort destroyed (Destruere. i. quod prius structum, & factum fuit, penitus evertere & diruere) unlesse it be by the verdict of his equals, or according to the Law of the Land.

6. No man shall be condemned at the Kings suite, either before the King in his Bench, where the Pleas are Coram Rege, (and so are the words, Nec super eum ibimus, to be understood) nor before any other Commissioner, or Judge whatsoever, and so are the words, Nec super eum mittemus, to be understood, but by the judgement of his Peers, that is, equalls, or according to the Law of the Land.

7. We shall sell to no man Justice or Right.

8. We shall deny to no man Justice or Right.

9. We shall defer to no man Justice or Right.

If we were to put this into today’s parlance, we could summarize Coke’s ideas with these words:

Justice applies equally to all people. It isn’t for sale. You can’t buy it. You can’t withhold it for whatever political (or other) reason you can think of. Everyone is equal, under the law, and we need to apply the laws of the land equally, across the board.

Everyone is entitled to their personal freedom. No one is to be imprisoned, exiled, deported or deprived of property without a proper judicial proceeding (which we call "due process of law"). To do otherwise—on any of Coke’s key points—would be a perversion of the law.

And last ... but certainly not least ... a just society does not allow a perversion of its laws.

This image depicts the frontispiece of The First Part of Coke's Institutes. Click on it for a better view.

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Author: Carole D. Bos, J.D. 5124stories and lessons created

Original Release: Oct 07, 2013

Updated Last Revision: Nov 15, 2016


Media Credits

Image online, courtesy Jamail Center for Legal Research, Tarlton Law Library at the University of Texas School of Law.  

 

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