https://orcid.org/0000-0002-6667-2411
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ABSTRACT
This article examines the treatises and law reports of Sir Edward Coke (1552–1634), the Attorney General under Elizabeth I and later, Chief Justice of the courts of Common Pleas and King’s Bench. The article juxtaposes Coke’s expressions of the common law’s uniqueness and antiquity with the historical scholarship of Coke’s peers that illuminated English legal, cultural, ethnic, linguistic, and institutional identity. This antiquarian historicism increasingly located the source of English ethno-cultural identity in the Anglo-Saxon period of English history. Whilst Coke’s belief in an immemorial common law necessarily placed its origins in the native British past, the following argues that Coke was receptive to contemporary scholarship that had solidified the association of the Anglo-Saxons with a discrete sense of Englishness. Indeed, subscription to the burgeoning antiquarian consensus that the Anglo-Saxons were the first English people was not necessarily incongruous with belief in an immemorial, pre-Saxon common law.
Acknowledgements
I am grateful to my PhD supervisor, Professor Clare Jackson, for reading numerous drafts of the thesis chapter out of which this article emerged, and to Drs Angus Vine and Paul Cavill for their suggestions and constructive criticisms during and following my PhD viva. Finally, I would like to thank the Cambridge Law Faculty’s F. W. Maitland Fund (and its managers) for funding this and the related research that ultimately formed my dissertation.
Disclosure Statement
No potential conflict of interest was reported by the author.
Abbreviations
| BL | = | British Library. |
| CCCC | = | Cambridge, Corpus Christi College (the Parker Library). |
| CCD | = | Ayloffe, J. and Hearne, T., eds., A Collection of Curious Discourses, 2 vols., London: 1771. |
| CPH | = | Cobbett, W., Parliamentary History of England: from the Norman Conquest, in 1066, to the year, 1803, 36 vols., London: 1806–20. |
| CUL | = | Cambridge, University Library. |
| HH | = | Holkham Hall MSS, as listed in A Catalogue of the Library of Sir Edward Coke, edited by W. O. Hassall, London: Yale University Press, 1950. Inst.Coke, E., The Institutes of the Laws of England, qu and cited below in The Selected Writings and Speeches of Sir Edward Coke, edited by S. Sheppard, vol II., Indianapolis: Liberty Fund, 2003. |
| ODNB | = | Oxford Dictionary of National Biography, 60 vols., Oxford: Oxford University Press, 2004, cited below in the online edn. |
| Rem. | = | Camden, W., Remaines of a greater worke, concerning Britaine, the inhabitants thereof, their languages, names, surnames, empreses, wise speeches, poësies, and epitaphes, London: 1605. |
| Rep. | = | Coke, E., The Reports of Sir Edward Coke, in thirteen parts, qu and cited below in The Selected Writings and Speeches of Sir Edward Coke, edited by S. Sheppard, vol. I, Indianapolis: Liberty Fund, 2003. |
| S | = | Sawyer, P. H., Anglo-Saxon Charters: an Annotated List and Bibliography, London: Butler and Tanner, 1968 (charters cited by ‘Sawyer’ number, e.g. S 1201). |
| TNA | = | Kew, the National Archives. |
Notes
1 For good reason, ‘Anglo-Saxon’ has become a controversial term for its racist associations and long history of misappropriation, a convention that took hold especially in the nineteenth and twentieth centuries, but one which has earlier origins. For a useful survey of the problematic legacies inherent in Anglo-Saxon studies, see Rambaran-Olm, Breann, and Goodrich, ‘Medieval Studies: The Stakes of the Field’, 356–70. However, ‘Anglo-Saxon’ has also been miscast as an ahistorical terminology in itself, and whilst ‘Anglo-Saxonist’ and ‘Anglo-Saxonism’ certainly do carry with them uncomfortable associations, Alfred the Great envisioned — and perhaps ruled over — a political entity he called the ‘kingdom of the Anglo-Saxons’. As such, ‘Anglo-Saxon’ was a contemporary term — a bridge between the disparate Saxon, Anglian, and Jutish kingdoms of earlier medieval England and the ‘kingdom of the English’ that emerged in the tenth century. As Catherine Karkov retains ‘Anglo-Saxon’ in her recent monograph on later Anglo-Saxon studies because she explores ‘an imagined place that was and is home to a specific type of identity’, I employ it here for the same reason; see Karkov, Imagining Anglo-Saxon England, 2.
2 Baker, ‘The Common Law in 1608’, 1485.
3 On James’s union project and the circumstances of the debate, see Kanemura, ‘Historical Perspectives’ and Wormald, ‘The Union of 1603’.
4 Baker, ‘The Common Law in 1608’, 1485–6.
5 See Baker, The Reinvention of Magna Carta, 46.
6 Williams, ‘The Tudor Genesis’, 105.
7 See Boyer, ‘“Understanding, Authority, and Will”’, 43.
8 Pref. 3 Rep., 62.
9 Pocock, The Ancient Constitution, 46.
10 See Smith, Sir Edward Coke, 12. See also Tubbs, The Common Law Mind, 141–72.
11 See Brackmann, The Elizabethan Invention, 217.
12 Ibid., 200–1.
13 See Kidd, British Identities, 79–98.
14 See Musson, ‘Sir Edward Coke’, 99.
15 See Garnett, ‘“The ould fields”’, 250.
16 Williams, ‘The Saxon Constitution’, 5. I am grateful to Dr Williams for sharing with me the latest version of this as yet unpublished lecture.
17 Pocock, The Ancient Constitution, 56. For a more recent revision of this assessment, see, for example, Goldie, ‘The Ancient Constitution’, 29.
18 On this narrower definition of Englishness, see Kidd, British Identities, 106–9 and Brackmann, The Elizabethan Invention, 116–7.
19 See, in particular, the collection of essays in The Recovery of Old English: Anglo-Saxon Studies in the Sixteenth and Seventeenth Centuries, ed. Graham.
20 Boyer, Sir Edward Coke, 146.
21 Ibid., 146–7. On the Society of Antiquaries more and its methodology more broadly, see Schoeck, ‘The Elizabethan Society’, 421.
22 For example, Garnett, ‘“The ould fields”’, 258.
23 See van Norden, ‘The Elizabethan College’, 97.
24 See Baker, ‘Coke’s Note-Books’, 59–86. See also Baker’s new editions of the Reports from the Notebooks of Edward Coke.
25 Garnett, ‘“The ould fields”’, 247.
26 Ibid.
27 See Baker, ‘Coke’s Note-Books’, 77–80.
28 Musson, ‘Myth, Mistake’, 69. Musson has also observed that ‘no other lawyer of his time probably had so much historical material at his fingertips’; see Musson, ‘Sir Edward Coke’, 96, 101.
29 See Hulsebosch, ‘The Ancient Constitution’, 439–44.
30 This process began in earnest in the late 1550s. In addition to Brackmann, see Larkin, The Making of Englishmen, 131–3.
31 Brackmann, The Elizabethan Invention, 201.
32 See Hassall, A Catalogue of the Library of Sir Edward Coke.
33 See Musson, ‘Sir Edward Coke’, 98.
34 Walters, ‘Legal Humanism’, 358.
35 Woolf, ‘Afterword: Shadows of the Past’, 640.
36 Garnett, ‘“The ould fields”’, 258.
37 A number of books and manuscripts in Coke’s library catalogue contain inscriptions indicating Parkerian provenance, including a copy of Bartholomaeus Anglicus’ De proprietatibus rerum, which is inscribed in Matthew Parker’s famous red crayon. See HH no. 581, 49.
38 See Boyer, Sir Edward Coke, 146–7. See also Schoeck, ‘The Elizabethan Society’, 421.
39 Williams, ‘The Tudor Genesis’, 104, 123. See also Smith, Sir Edward Coke, 44.
40 Pref. 3 Rep., 73.
41 Williams, ‘The Tudor Genesis’, 261–2.
42 Pref. 3 Rep., 76–7.
43 See Vincent, ‘The Use and Abuse’, 208–9.
44 Pref. 3 Rep., 63.
45 The terminology in this case was ‘ancient demesne’, a feudal concept which afforded certain privileges to tenants. ‘Ancient demesne’ refers in particular to royal land at the time of the Conquest. See also Garnett, ‘“The ould fields”’, 278. On backward legal reading, see Williams, ‘The Tudor Genesis’, 117.
46 HH MSS 434 and 443, the former of which is inscribed ‘Edw: Coke’.
47 ‘ … king by name, but by the name of Earl Harold, or Herald’. 2 Inst., 753.
48 See Williams, ‘The Tudor Genesis’, 123, n. 103.
49 i.e., ‘the time of Edward the Confessor’.
50 Garnett, ‘“The ould fields”’, 280.
51 Archer, ‘Elizabethan chroniclers’, 135. See also Lobban, ‘The Common Law Mind’, 18–21.
52 van Norden, ‘The Elizabethan College’, 194. Coke was Attorney General for England and Wales from 1594–1606. See CCD, vol. I, 8.
53 10 April, 1593, CPH, vol. I, 889.
54 Ibid, 889–91.
55 London, BL, Additional MS 49366 [HK], formerly HH MS 337; ‘late the booke of Parker ArchB: of Canterbury’. See Hassall, A Catalogue, 27.
56 Williams, ‘The Tudor Genesis’, 113. This is noted in Lambarde, Archeion, 249. Though not printed until Citation1635, Archeion was circulating in manuscript throughout the antiquarian community from the early 1590s.
57 ‘with the advice and instruction of Cenred, my father’. Lambarde, Archaionomia, C. 1v.–fol. 1r.
58 CCD, vol. 1, 285.
59 Williams, ‘The Tudor Genesis’, 113, n. 57.
60 Ibbetson, ‘Dodderidge, Sir John’.
61 See Walters, ‘Legal Humanism’, 358.
62 Pocock, The Ancient Constitution, 261.
63 Pref. 3 Rep., 62.
64 Pref. 10 Rep., 338.
65 Hassall, A Catalogue, 26–8, nos. 333, 335, 345, and as Garnett has shown, possibly 350. See Garnett, The Norman Conquest, C9, 40, n. 173.
66 ‘a meeting of noble and wise men’, trans. Sheppard, pref. 9 Rep., 297. See also Galbraith, ‘The Modus Tenendi Parliamentum’, 81–99 and Tucker, ‘The Mirror of Justices’, 99–109.
67 On Arthur’s laws through the Leges Edwardi, see Calvin’s Case in 7 Rep., 166–232. See also Pref. 9 Rep., 288. On Coke’s marginalia relating to pre-Conquest parliaments, see Garnett, ‘“The ould Fields”’, 277, n. 230.
68 Pref. 9 Rep., 292.
69 Ibid., 298–9. This notion, too, was likely refracted through Lambarde. See Kelley, ‘History, English Law and the Renaissance’, 35–6.
70 ‘I, Ine, by the grace of God, king of the West Saxons, by the exhortation and teaching of Cenred, my father’. Pref. 9 Rep., 292.
71 Pref. 3 Rep., 66.
72 Ibid.
73 HH MSS 499, 500, 503, and 516.
74 Pref. 8 Rep., 245.
75 Keynes, ‘The Cult of King Alfred’, 243.
76 HH MSS 1201–4; S 746 (or rather, a single-sheet version thereof, now lost), S 558, S 287, and S 1030, respectively. Only S 1030 remains at Holkham.
77 Crick, ‘The Art of the Unprinted’, 129.
78 Schoeck’s essay on law and Anglo-Saxon antiquarianism in early modern England omitted Coke entirely. See Schoeck, ‘Early Anglo-Saxon Studies’, 102–10. Coke’s library catalogue included various volumes that illustrate his participation in, or at least knowledge of, the antiquarian scholarship discussed throughout this essay. See, for example, HH MS 377, ‘“de priscis Anglorum legibus”, translated out of the Saxon tongue by Mr Lamberd’ (Archaionomia), and HH MS 506, Parker’s De Antiquitate Britanicae ecclesiae, inscribed ‘Hunc cum aliis Johannes Paker miles, filius Mathaej Cantuar’ Archiepiscopi, dono dedit. Edw. Coke ex dono Jo Parker militis’ / ‘John Parker, son of Matthew, Archbishop of Canterbury, gave this as a gift. Edward Coke from [John] Parker the knight’.
79 Brackmann, The Elizabethan Invention, 5–6.
80 Pref. 6 Rep., 150.
81 Ibid.
82 Persons, An Answere to the fifth part of Reportes, I. 3v. See also Houliston, Catholic Resistance in Elizabethan England.
83 Pref. 3 Rep., 61.
84 Musson, ‘Myth, Mistake’, 70.
85 Garnett, ‘“The ould fields”’, 261.
86 Pref. 6 Rep., 151.
87 See Waite, ‘The Struggle of Prerogative and Common Law’, 145.
88 Pref. 6 Rep., 151.
89 Ibid.
90 S 1201; Pref. 6 Rep., 152.
91 1 Inst., 600.
92 On this practice, see Garnett, ‘“The ould fields”’, 263.
93 See also S 1201: ‘Ego Æthelred rex occidentalium Saxonum consensi et subscripsi’, ‘Ego Burgred rex Merciorum consensi et subscripsi’; ‘I, Æthelred, king of the West Saxons, consented and subscribed’, ‘I, Burgred, king of the Mercians, consented and subscribed’.
94 S 886, trans. Sheppard, Pref. 6 Rep., 153.
95 Williams, ‘The Tudor Genesis’, 123.
96 Pref. 6 Rep., 155.
97 Only one cartulary roll contains both of these charters: London, BL, Cotton MS Claudius B VI. See provenance notes for this manuscript in the Electronic Sawyer [https://esawyer.lib.cam.ac.uk/manuscript/291.html].
98 Crick, ‘The Art of the Unprinted’, 129.
99 Ibid., 128–9.
100 Parry’s ownership of this cartulary is noted in Sawyer. Perhaps Parry had acquired the cartulary out of genealogical interest and later permitted Coke to transcribe its contents. In the 1850s, Henry Godwin noted that the ‘Parrys are one of the oldest families in this kingdom; and can trace their pedigree far back into Anglo-Saxon times’; Godwin, The Worthies and Celebrities, 36.
101 ‘with both labour and talent’. Qu in Crick, ‘The Art of the Unprinted’, 127. See also Baker, ‘Coke’s Note-books’, 67.
102 Crick, ‘The Art of the Unprinted’, 127.
103 1 Inst., 585.
104 Musson, ‘Sir Edward Coke’, 96. See also Shapiro, ‘Francis Bacon’, 350–6.
105 See Boyer, Sir Edward Coke, 146–8.
106 2 Inst., 752.
107 5 Rep., 127.
108 1 Inst., 587.
109 1 Inst., 624.
110 ‘I, Edward, by the grace of God king of all the land of Britain, have confirmed my gift with my own seal’; ‘I, Ælfwin, God’s overseer of the church of Winchester, have stamped my own seal’, trans. Sheppard. 1 Inst., 624. Sheppard’s translation of ‘Edwinus’ and ‘Aelfwinus’ as ‘Edward’ and ‘Ælfwin’, respectively, should be ‘Eadwig’ and ‘Ælfsige’.
111 S 595, in CUL, Additional MSS 3020–1.
112 1 Inst., 624.
113 Williams, ‘The Tudor Genesis’, 117.
114 Hale, The History of the Common Law, 343.
115 i.e., in HH MS 503, Polidor Virgills historie of England. See Vergil, Anglica Historia, IV, cap. 32.
116 His brevity might have been so as not to appear to contradict the Protestant polemical scholarship of Parker.
117 Hale, The History of the Common Law, 342–3.
118 Musson, ‘Sir Edward Coke’, 106.
119 Boyer has shown that Coke was ‘in regular working contact’ with members of the Society, especially Agarde, Tate, and Holland. See Boyer, Sir Edward Coke, 147.
120 CCD, vol. II, 314–5.
121 1 Inst., 585.
122 ‘The Britons are divided from the world’.
123 25 March, 1628, in Sheppard, The Selected Writings and Speeches of Sir Edward Coke, vol. III, 1232.
124 On the insular — or cosmopolitan — nature of the seventeenth-century legal profession, see Goldie, ‘The Ancient Constitution’, 29.
125 Helgerson, Forms of Nationhood, 71.
126 On etymology as the most important antiquarian methodology of the period and its association with ethnic genealogy, see Vine, In Defiance of Time, 51.
127 On Coke’s connections to Agarde, Tate, and Holland, see Boyer, Sir Edward Coke, 146–8. On Coke’s friendships with Society members and the frequency of Tate and Agarde’s contributions to Society discourses, see van Norden, ‘The Elizabethan College’, 134–50 and 227–8. Coke owned, and annotated, two manuscripts called ‘liber Agard’, on ‘records and Judgments in the raignes of E: I. E: 2. E: 3. R: 2. E: 4. H: 5. cont’ 145 leaves’, HH MSS 316–7.
128 CCD, vol. I, 309. Coke seems to have shared this interest, owning many volumes on heraldry and peerage.
129 Pref. 9 Rep., 303. Coke probably found these laws, and their translations, in his copy of Lambarde’s Archaionomia.
130 CCD, vol. I, 22.
131 Ibid., 23.
132 1 Inst., 586.
133 1 Inst., 689.
134 Musson, ‘Sir Edward Coke’, 106.
135 ‘ … and it signifies an acquittal of murder in an army’; ‘To be free of the burdens of arms’, respectively. 1 Inst., 689.
136 Garnett, ‘“The ould fields”’, 282.
137 Williams, ‘The Tudor Genesis’, 123.
138 Stuckey, ‘Antiquarianism and Legal History’, 218.
139 Pref. 3 Rep., 69.
140 See Williams, ‘The Tudor Genesis’, 123.
141 London, BL, Harley MS 244, fol. 57v., qu in Baker, Reports from the Notebooks of Edward Coke, vol. I, cxxvi, n. 8.
142 Pref. 3 Rep., 66–7.
143 Ibid.
144 This manuscript was omitted in Coke’s own catalogue. See de Ricci, A Handlist of Manuscripts, MS 227, 19 fols.
145 Pref. 3 Rep., 65. William Camden, for example, made reference to ‘the Saxons our progenitors’. See Rem., 15.
146 Pref. 9, Rep., 303.
147 Ibid., 301.
148 ‘If anyone leaves his lord without licence, or steals into another county, and then returns, he shall go back to the place where he was before and make amends of sixty shillings to his lord’, trans. Sheppard, pref. 9 Rep., 302.
149 Williams, ‘The Saxon Constitution’, 18.
150 Helgerson, Forms of Nationhood, 81.
151 Pref. 9 Rep., 303.
152 See Williams, ‘Law, Language’, especially 346–57 and Ross, ‘The Commoning’, especially 365–79.
153 Pref. 3 Rep., 76.
154 Musson, ‘Sir Edward Coke’, 107.
155 See Coke’s Reading on Uses (1592), London, BL, Hargrave MS 33, fol. 136v., qu and paraphrased in Baker, Reports from Coke’s Notebooks, cxxvi–ii.
156 3 Inst., 951, trans. Sheppard.
157 Ibid.
158 Musson, ‘Sir Edward Coke’, 106.
159 ‘Either this machine has been made within our walls, or there is some mistake: do not trust the horse of Teucrus’ (i.e. the Trojan horse). Pref. 3 Rep., 68, trans. Shepherd.
160 See Robert Cotton’s Discourse on the Descent of the King’s Majesty from the Saxons, Kew, TNA, MS SP 14/1/3.
161 3 Inst., 951.
162 Pref. 3 Rep., 67.
163 CCD, vol. II, 3.
164 3 Inst., 952.
165 Ibid., 956.
166 ‘Treasons [lord-deceit] are accounted among those offences which are not emendable by the law of man’. 3 Inst., 956, trans. Sheppard. cf. Lambarde, Archaionomia, fols 117v.–8r.
167 3 Inst., 956.
168 Agarde expressed similar views on linguistic identity in his discourse on stewards: ‘I suppose the same word steward to stand upon the Saxon language rather then upon the Latine or French’, CCD, vol. II, 41.
169 See Smith, Sir Edward Coke, 138.
170 2 Inst., 752.
171 Ibid.
172 Ibid, 752–3.
173 ‘Alfred, a ruler of the sharpest ingenuity, was so educated by the two most learned monks Grimbald and John that he had brief notes of all books, and translated the whole of the Old and New Testament into English speech (part of which translation happily remains to us)’. 2 Inst., 753., trans. Shepherd. HH MS 1043.
174 See Hassall, A Catalogue, 42.
175 CCCC MS 173.
176 See Grant, ‘Laurence Nowell’s Transcript’, and Garnett, ‘“The ould fields”’, 280.
177 Lambarde, Archaionomia, fols 19r.–27v.
178 2 Inst., 753.
179 Brackmann, The Elizabethan Invention, 71.
180 i.e., ‘law of the land’. See Baker, The Reinvention of Magna Carta, especially 249–75.
181 26 April, 1628, in Sheppard, Selected Writings and Speeches, vol. III, 1267. On the political and legal circumstances surrounding the petition of right, beyond the scope of this essay, see Guy, ‘The Origins of the Petition of Right Reconsidered’, 289–312.
182 See Hulsebosch, ‘The Ancient Constitution’, 451.
183 Brackmann, The Elizabethan Invention, 3.
184 3 Inst., 951.
185 ‘language of the land’.
186 Autograph marginal note in Coke’s hand in New Haven, CT, Beinecke Library, MS G R24.1, fol. 149v. I am grateful to Professor Sir John Baker for sharing with me his transcription of the manuscript.
187 ‘ … of all the islands of the ocean which surround Britain … as far away as Norway and the greater part of Ireland (with its most noble city of Dublin), under the subjugation of the English kingdom’, 7 Rep., 281.