Sir Edward Coke and the Common Law, by Timothy Sandefur

In his new book The Triumph of Liberty, Jim Powell tells the story of Sir Edward Coke, the seventeenth century lawyer whose writings were the staple of learning for the American founders. Coke's insistence on the supremacy of the common law made him anathema to the rulers of his day—and a hero in the history of the rule of law. But Coke also understood the importance of economic liberty, and his legacy in defense of the free market was, to the American founders, every bit as important as his belief that no man was above the law.

Born in 1552, Coke (pronounced "cook") was the son of a lawyer, and studied law at London's Inner Temple. But he became well known when he was elected Speaker of the House of Commons under Queen Elizabeth. A staunch defender of the queen's power, Coke was a favored subject. He was soon rewarded with the office of Attorney General. "Mr. Attorney Coke," as Elizabeth called him, was a consistent defender of state power, prosecuting Catholics, Spaniards, and other "enemies of the state." His legal acumen and lightning wit made him a dangerous opponent in court, and since defendants had few, if any, rights, Coke was a highly successful prosecutor.

The trouble started for Coke when Elizabeth died. James, the Stuart king of Scotland, came to rule England as James I. With his close ties to Catholicism and his experience with the absolutism of the Scottish monarchy, James was not prepared for the opposition that he would experience at the hands of his English subjects.

One of those opposition members was Edward Coke, whom James had—in a conciliatory moment—appointed as Chief Justice of King's Bench. This was the highest legal title in all England next to the king, and James had expected loyal pro-government decisions from his Chief Justice. Instead, he found himself in legal debates over the relationship between the law and the king. Coke's conflicts with the throne grew more and more heated, until finally James decided to simply take lawsuits out of King's Bench, and settle them himself. Coke's biographer Catherine Drinker Bowen describes the scene:

"And it appears by Act of Parliament," Coke [told James] "that neither by the Great Seal nor by the Little Seal, justice shall be delayed; ergo the King cannot take any cause out of any courts and give judgment upon it himself…." James broke in, told Coke he "spoke foolishly." Himself, the King, as supreme head of justice, would defend to the death his prerogative of calling judges before him to decide disputes of jurisdiction. Moreover, he would "ever protect the common law."

"A traitorous speech!" James shouted. "The King protecteth the law, and not the law the King! The King maketh judges and bishops. If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, shipmen's hose!" [1]

This dramatic confrontation is today immortalized in a bas-relief on the front doors of the United States Supreme Court. Although at the time he begged the King's pardon, he never gave up his belief in the supremacy of law, and the next year, in the famous Dr. Bonham's Case [2] he held that

In many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.[3]

This conflict between the prerogative of the king and the liberties of subjects would not be settled until the American Revolution, but one of the ways in which it manifested itself in James' court, and which made Coke a hero for generations, was the question of monopolies.

Monopolies were an old tool used by the crown to maintain power, and hand out favors. A loyal subject would be given a monopoly on some product, such as wine, which would make it illegal for anyone to compete, or sell the product without paying the monopolist a fee. Monopolies had always been a frustration to the poor, but they were a powerful agent for control of the rich, and in a society where the poor had no say, there seemed to be little objection to granting them. But Edward Coke despised monopolies. "Monopolies in times past," he wrote, "were ever without law, but never without friends."[4]

The famous case of Darcy v. Allen[5] involved a monopoly on playing cards. Queen Elizabeth had granted a monopoly to Ralph Bowes, who sold it to Edward Darcy. But he then discovered that Thomas Allen was making and selling cards himself. He sued, and although Coke did not believe in monopolies, he was duty bound, as Attorney General, to argue for Darcy, in defense of the queen's power to grant monopolies. A compulsive record-keeper, Coke published reports of lawsuits, and he reported Darcy v. Allen, better known as The Case of Monopolies. Interestingly, recent legal scholarship suggests that Coke's report is highly inaccurate. Coke's report implies that the judges roundly attacked the prerogative of the king, but, in fact, "the justices of the King's Bench said nothing in open court when they passed judgment against Darcy.… The generally modest views of the defense have been obscured by Coke's report…"[6] In fact, Coke, although he argued in court for the monopolist, used the report of Darcy v. Allen to assail them, because monopoly

was against the common law, because it was against the liberty of the subject…. It tends to the impoverishment of divers artificiers and others, who before, by the labour of their hands in their art or trade, had maintained themselves and their families, who now will of necessity be constrained to live in idleness and beggary.[7]

According to Coke's report, the monopoly was struck down for violating the Magna Carta, which Coke believed was the fountainhead of English liberties. Thus the monopoly was

Against the common law, and against the end and scope of the Act itself; for this is not to maintain and increase the labours of the poor cardmakers within the realm, at whose petition the Act was made, but utterly to take away and destroy their trade and labours, and that without any reason of necessity…but only for the benefit of a private man, his executors and administrators, for his particular commodity, and in prejudice to the commonwealth.[8]

Coke made his views of monopolies clear after he became Chief Justice. In Allen v. Tooley[9], the court reviewed a law requiring upholsterers to serve an apprenticeship before entering the trade of "wool-packing." Coke held that "by the very common law, it was lawful for any man to use any trade thereby to maintain himself and his family; this was both lawful and also very commendable."[10] Proponents argued that the apprenticeship was necessary to prevent unskilled workers or low quality goods, but Coke responded, "Unskilfulness is a sufficient punishment for him."[11] Upholstery was not a skilled trade that requiring licensing and practice, Coke argued, "for [a man] may well learn this in seven hours."[12] Instead it was a simple occupation, and the freedom of a subject to engage in that trade should not be restricted. That freedom was guaranteed by the Magna Carta, said Coke, and "a man is not to be restrained that he shall not labor for his living."[13]

Coke saw monopolies, not in terms of economic efficiency or public policy but in the fundamental form of personal freedom. In his day, he was a "liberal," because he saw what we often overlook today, that what he called the common law right to pursue a lawful occupation, is the source of livelihood—the only chance for the poor to rise out of their poverty.

This is why Coke carried on his attack on monopolies even after James fired him from King's Bench. Elected to the House of Burgesses, Coke argued that "The monopolizer engrosseth to himself what should be free for all men,"[14] by prohibiting economic freedom.

Coke's lifelong campaign against monopolies finally triumphed in 1624, when the Parliament passed the Statute of Monopolies which he had written. The Statute held that "all monopolies, all commissions, grants, licenses, charters [except temporary patents for inventions]…are altogether contrary to the laws of the realm, and so are and shall be utterly void and of none effect and in no wise to be put into use or execution."[15]

Coke was not done. With his help the Commons went on to help draft the Petition of Right, one of the bills of grievances submitted to James' son Charles I. The Petition of Right set the stage for the civil war that would end with the execution of Charles I. But Coke would not see that day. He retired in 1628, to write the books he had always wanted to write, the four-part Institutes of the Common Law of England. Coke's Institutes, and especially the first part, A Commentary Upon Littleton, became the first textbook of generations of law students, including Thomas Jefferson, John Adams, and John Marshall. In a chapter on monopolies, Coke wrote "No man ought to be put from his livelihood without answer."[16] A monopoly given to tailors, for instance, which protected their income by forbidding citizens from having their clothes made by competing tailors was void, "for every subject hath freedom to put his clothes to be dressed by whom he will."

So, likewise, and for the same reason, if a graunt be made to any man to have the sole making of cards, or the sole dealing with any other trade, that graunt is against the liberty and freedome of the subject, that before did, or lawfully might have used that trade, and consequently against [Magna Carta]. Generally all monopolies are against this great charter, because they are against the liberty and freedome of the subject, and against the law of the land.[17]

The generations of law students brought up on Coke's Institutes saw monopolies the same way: as restrictions on freedom. James Madison, for instance, argued against "monopolies [which] deny to part of its citizens [the] free use of their faculties," and asked "What must be the spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in a linen shroud, in order to favour his neighbour who manufactures woolen cloth…?"[18] When ratifying the Constitution, four states proposed amendments to prohibit Congress from creating monopolies.

The founding generation built upon a century-and-a-half-old tradition against legal restrictions on freedom of occupation. To them, monopolies were not "bad for the consumer," or the result of "unfair pricing practices" but an overt restriction on the freedom of individuals to use their gifts as they saw fit. That freedom was the foundation of life and all civil society. Coke understood was too few economists even today understand—that the poor have the most to gain from economic freedom, and the most to lose when government oversteps the rule of law.

[6] Jacob Corre, The Argument, Decision, and Reports of Darcy v. Allen, 45 Emory L.J. 1261 (1996)

[13] 80 Eng. Rep at 1059. Coke was referring to Section 30 o the Magna Carta of 1297, which held that "All merchants…shall have their safe and sure conduct…to buy and sell without any manner of evil tolts…."

[18] James Madison, "Property," in Madison: Writings, ed. Jack Rakove (New York: Penguin, 1999) p. 516

Sir Edward Coke and the Common Law

by Timothy Sandefur

Legal Debates with the King

Monopolies

Footnotes