Bacon and Shakespeare: what they were to philosophy and literature, Coke was to the common law. – J.H. Baker

Sir Edward Coke, 1552-1634. The First part of the Institutes of the Laws of England; or, A Commentary upon Littleton, Not the Name of the Author Only, but of the Law it Self.  12th ed. London: 1738.

The Osgoode Library has recently been the recipient of an important donation from Fraser Laschinger, Osgoode ’73: a copy of the 12th edition of Sir Edward Coke’s famous commentary on Sir Thomas Littleton’s Institutes of the Laws of England, printed in London in 1739. Coke on Littleton is one of the great authorities of the English common law.

This particular copy is especially valuable for its remarkable provenance, reflective of Canadian legal history. As evidenced by an armorial bookplate on the inside front cover, the text came to Canada sometime in the late 18th Century with Sir James Monk (1745-1826), who was appointed Solicitor General of Nova Scotia in 1772 and acting Attorney General in 1775. He served as Attorney General of Lower Canada 1776-1789 and again 1782-1794, when he was appointed Chief Justice of Lower Canada. Monk built the mansion Monklands in Montreal, the oldest remaining Palladian-style villa in Canada, which was the residence of Canadian Governors General from 1844 to 1849. Lord Elgin lived in the house, where his son, Victor Bruce, the future Viceroy of India was born. The house was acquired in 1854 by the Congrégation de Notre Dame to serve as a girls’ boarding school, Villa Maria, which still operates today in the same building.

Initials inscribed in the text may also refer to a further possible association of this copy with Edward Goff Penny, the Montreal journalist and conservative politician, called the Bar in 1850. Mr Laschinger’s father acquired the book upon purchase of the Montreal home of Mme Jeanne Vanier (née Tétrault, widow of Antoine Vanier) in 1950. This book complements copies of other editions of Coke on Littleton already in the Library’s Canada Law Book Rare Book Room, the earliest being the 2nd edition, 1628. We thank Mr. Laschinger for his generosity.

Sir Edward Coke (that’s pronounced Cook, as I found out the hard way) was a prominent English jurist and politician whose Institutes of the Laws of England have had an enormous impact on the development of English law, and by extension, common law in general.

Coke was born in Norfolk in 1552. He entered the Inner Temple in 1572 and was called to the bar six years later. He ably proved his worth as a jurist and rose through a number of positions in the public service, eventually beating out rival and renaissance man Sir Francis Bacon for the post of Attorney General in 1594. Besting Bacon seems to have been among Coke’s many talents: four years after his appointment, Coke again found himself at odds with Bacon as they competed for the hand of Lady Elizabeth Hatton, which Coke won.

As Attorney General, Coke was involved with a number of high profile cases; Coke prosecuted both Sir Walter Raleigh and the conspirators of the Gunpowder Plot. Until his retirement in 1628, Coke spent the rest of his career in politics, though at times, like many of today’s statesmen, he found himself on both sides of scandal.

Today, Coke may be best remembered for his defense of the supremacy of the common law against Stuart claims of royal prerogative, and for his four-part series of treatises, The Institutes of the Laws of England. Coke’s Institutes were not only influential in their day, but continue to be of great importance to the common law tradition in their collective role as “books of authority”.

What are books of authority? The International Encyclopedia of Comparative Law offers a clear description of their use in law:

The function of academic works [in law] may differ. A judge may be required, if in difficulties, to follow the opinion of one or more particularly expert jurisconsults. Or [academic works] may be of persuasive authority only.

The former system was used at the time of the Roman Empire, where the famous Law of Citations promulgated by Emperor Valentinian III in 426 required the opinions of certain jurisconsults (Gaius, Papinius, Paul, Modestinus, and Ulpian) to be followed. This Law also determined which authority was to be followed if they disagreed on a point requiring resolution.

The principle of the Law of Citations has frequently been accepted: in societies where written matter was rare there was a great temptation to recognize that the writings of certain eminent personages constituted a definitive statement of the law.

Thus it was accepted in England that certain works had authority, and that their authors must be considered as having stated correctly what was known, in Coke’s phrase, as the general immemorial custom of the realm. These “books of authority” are Glanvill and Bracton in the twelfth and thirteenth centuries, Littleton and Coke in the sixteenth and seventeenth, and Blackstone’s Commentaries in the eighteenth century. In our day the proliferation of precedents and their increasing authority, and the frequent intervention of the legislature, have replaced the rules stated in these works by new rules. However, English authors continue to regard them respectfully as books of authority which can be relied on before the courts, if necessary.

The Oxford Dictionary of Law (7th ed, 2006) also discusses “books of authority” in its definition of textbooks:

Textbooks may be cited in court to assist in the interpretation of the law. They have no authority as a source of law but merely provide an expert opinion as to the current state of the law. There was formerly a convention that only the works of dead authors could be cited, but modern practice also allows citation of living authors. The Books of Authority, i.e. the works of Glanvil, Bracton, Littleton, Coke, and Blackstone, are treated as having the same authority as cases of the same period.

A quick search on CanLII for Edward Coke in Canadian Supreme Court documents returns over fifty cases citing Coke as an authority; a similar search in US Supreme Court cases returns over one hundred. Clearly, Coke is one for the ages. Though he displays admirable modesty in the subtitle of his First Institute by referring to his precursor Littleton as “the LAW it self,” it is Coke who is consistently referred to as the authority, not Littleton, and the title may as well be attributed to him.