Monday, November 15, 2010

Coke and the Defense of Liberty: The Rule of Law as Superior to Royal or Religious Absolutism

The Rule of Law in modern civilization and especially in Western Civilization is today in many quarters under siege from new absolutists, masquerading under the cloak of the many faces of religious fundamentalism. Many of these sects and religions seek to propagate antiquated dogmas and enforce their selfish religions under the guise of law, thereby endangering the rule of secular law and modern democracy.

Is it time in American law and elsewhere in the free world to resurrect the importance of the ideas of Sir Edward Coke? His ideas still ring fresh and true. What applies to kings applies to religions. Any absolutist dogma is a danger.

Today's Britannica Law Case Widget at LawPundit featured Bonham's Case (1610), writing:
"[A] legal case decided by Sir Edward Coke, chief justice of England's Court of Common Pleas, in which he asserted the supremacy of the common law in England, noting that the prerogatives of Parliament were derived from and circumscribed by precedent. He declared that “when an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.” Coke had already applied this doctrine to acts of the king and, in this case, was extending it to parliamentary legislation. However, the principle of judicial review of parliamentary acts implied by Bonham's Case never took hold in England...."
Sir Edward Coke was an eminently important man in the history of Anglo-American Law:
"Coke's enduring fame and importance rests principally on his immensely influential legal writings and on his staunch defence of the rule of law in the face of royal absolutism. His legal texts formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the eighteenth century. As a judge and Member of Parliament, Coke supported individual liberty against arbitrary government and sought to ensure that the king's authority was circumscribed by law. In later times, both English reformers and American Patriots, such as John Lilburne, James Otis, and John Adams, used Coke's writings to support their conceptions of inviolable civil liberties. [emphasis added]
Coke's writings are as timely today as they were 400 years ago and there are a lot of them in the 13 volumes of Coke's Reports.

As regards the Prohibitions Del Roy [the King's prohibitions]. King's Bench Division. Original Citation: (1572-1616) 12 Co Rep 63, English Reports Citation: 77 E.R. 1342, Coke wrote -- we cite from the Online Library of Liberty, quoting text from The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard [William H. Enfield Professor of Law at the University of Arkansas Law School], Indianapolis: Liberty Fund, 2003, Vol. 1 [the spellings below that diverge from modern spelling are found in the original text as the spellings of that age, 400 years ago -- we quote the text here as fair use]:
"Prohibitions del Roy.

(1607) Michaelmas Term, 5 James I.

In Conference Before the King. First Published in the Reports, volume 12, page 63.

[Editor's Comment (Steve Sheppard)]: These are Coke’s notes of a conference in which he and his fellow Judges informed the King that he does not have the privilege to personally decide a Case at Law. The Law requires an artificial logic, in which he is not skilled. The Law, also, protects the King. These were not the answers the King was expecting.... As a cornerstone of modern notions of the rule of Law and an independent judiciary, the report is one of the most important Law opinions in the history of the Common Law.]

[Sir Edward Coke: ...] the King in his own person ... cannot adjudge any case, either criminall, as Treason, Felony, &c. or betwixt party and party, concerning his Inheritance, Chattels, or Goods, &c. but this ought to be determined and adjudged in some Court of Justice, according to the Law and Custom of England ...
the Judges are sworn to execute Justice according to Law and Custom of England. 
[Sir Edward Coke: ...] true it was, that God had endowed his Majesty with excellent Science, and great endowments of nature; but his Majesty was not learned in the Lawes of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law, which Law is an act which requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the Golden metwand and measure to try the Causes of the Subjects; and which protected his Majesty in safety and peace: With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege.... [Ed.: The king ought not to be under any man, but under God and the Law.]
On Coke,
see Brad DeLong,
Your One-Stop Source for Edward Coke, C.J. Liberties-of-Englishmen Blogging

See also other books by Sheppard, as listed at his faculty website.

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