Allen Boyer reviews Sir John Baker, Reports from the Notebooks of Edward Coke (2022-23)

Allen D. Boyer

Allen D. Boyer is a writer and historian living on Staten Island, New York, and was previously senior appellate counsel for the New York Stock Exchange Division of Enforcement.  His next book, “The Rise and Fall of Treason in England,” co-authored with Mark Nicholls, will be published by Routledge.

Reports from the Notebooks of Edward Coke.  Edited by Sir John Baker (Selden Society 136-140).   London, 2022-2023.  Volume I, 1572-1579, pp. ccxxxviii, 1-165; Volume II, 1579-1588, pp. xxxviii, 166-407; Volume III, 1594-1595, pp. xxxii, 408-659; Volume IV, 1596-1598, pp. xxxiv, 660-927; Vol. V, 1598-1600, pp. xxxv, 928-1240.  £60 / $145 per volume.

In 1972, as a young scholar, Sir John Baker identified the personal case-notes of the rising lawyer who would become Lord Chief Justice Sir Edward Coke – “the most exciting manuscript discovery of my career,” he considers (vii).  This discovery has matured into the publication of Reports from the Notebooks of Edward Coke, edited by Baker for the Selden Society.  Overshadowing the works of other Tudor jurisprudents (Spelman, Dyer, Port, Dalison, Caryll, whose notebooks and reports Baker has earlier edited), publishing Coke’s records may be the culmination of Baker’s work.

Baker intends for this collection “to show what can be learned from the notebooks about Coke’s legal thought and career before he was appointed to the bench in 1606” (ix).  Possibly, Coke began following the courts as early as the summer of 1570, when he was only eighteen; he knew details of a treason case tried that July in Norwich.  He began amassing his store of precedents in late 1572, reporting proceedings from Michaelmas term (lxxiii, lxxvii).

Coke was already reconnoitering the ground he would contest with the High Commission and prerogative courts, but the prohibitions in these notebooks relate more often to tithes than to questions of religious conformity or state authority (pp. 540, 976, 1030, 1045, 1048).   Despite his vigor as a prosecutor, Coke had also begun to ponder limits on the sweep of treason.  To compass or imagine the monarch’s death was undeniably treason, he knew; but “compassing and imagination are words of large extent, and yet they ought to be kept within a compass” (p. 523).

Coke would claim for the judges the power of judicial review.  Baker places this claim in the context of the judicial arrogation (by Coke and King’s Bench) of the power to oversee local corporations and prerogative courts.  He discusses Bonham’s Case (1610) in terms of statutory interpretation, which is to follow the narrow English view of that decision, rather than the American view, which robustly sees Bonham as the forerunner of Marbury v. Madison.

The autograph records show how Coke might revise his own notes before publishing them, casting light on the rumors that he highlighted his own arguments.  When the judges held back from announcing the full reasons behind a decision, Baker suggests, “Coke was ready to fill the void . . . by making the assumption that they must have adopted the reasoning of counsel on the winning side, especially when that was himself” (cvi).  For example, Baker notes that the drawn-out litigation in Multon v. Coveney (1576) was “reported differently” by Plowden, Dyer, and elsewhere (p. 89).

Ironically, Shelley’s Case (1581), which made Coke’s name, is absent from Coke’s notebooks.  On this, Baker makes a crucial point:  Coke’s report of Shelley’s Case may be less “a record of the case, rather than an essay on it,” but the bar accepted it (ciii, cvii).  This speaks to cases other than Shelley.

Coke could also adopt a lawyerly restraint.  When he published the Marquess of Winchester’s Case (1599), involving an inheritance dispute, he soft-pedaled his language.  He changed “base sons” to “reputed sons” and omitted his note that “the said marquess was not of sound mind at the time of making the said supposed will, but was tricked by his concubine,” the bastard offspring’s mother (6 Co. Rep. 23b, p. 1012).

On how common lawyers understood doctrine or read statutes, the reports are a gold-seam.  Coke’s case-notes give a valuable group portrait of the English gentry and nobility who went to law in the Elizabethan period.  They offer insight into the mindset of lawyers and clients.  Treason is a concern, but attainder is a concrete worry, while leases, uses, and pleading points crowd the foreground.

There are frequent snapshots of common lawyers and judges at work.  These may even amount to images of law in action, particularly when a conference results in the construction (or conscious circumscription) of a statute.  This comes to the fore in Mrs Shelley’s Case (1593).  In this matter, in a private conference between Sir John Popham and Sir Edmund Anderson, the two chief justices agreed that the defendant Jane Shelley could not be charged with præmunire even though she possessed a Roman Catholic agnus Dei medallion; as she had removed this sacramental from the pocket of her dying mother, she had not “received” it from overseas as the law forbade (p. 513).  This hair-splitting determination, favoring a defiant recusant, was a rarely merciful decision.

Color illustrations show the difficulty of the notes that Baker has deciphered – “hieroglyphs” of writing, patches of addenda, scribbles in every margin, worn page-edges and obliterated phrases.  “It was the fashion to use small writing in commonplace-books,” Baker observes, “but Coke’s was smaller than most and in places almost illegible without a glass, particularly in the meagre lighting of the British Library” (lxxiv).  Fittingly, the index draws to a close with Coke’s inkhorn terms, culled from English, Latin, and law French (pp. 1238-1240).  To collect the Latin maxims and aphorisms that Coke stockpiled, tags that he fired off in salvos to clinch an argument, has required two pages of entries, printed in double columns (pp. 1210-1212).

Baker’s magisterial command of the material makes it broadly useful.  This appears in his prefaces, a hundred-page introduction, and a superbly helpful set of indices and appendices.  The autograph reports are tied out to Coke’s published work, to other law-writers’ reports, to manuscripts, to reference works.  This material will be invaluable not only to legal historians, but to others researching the history, society, and culture of Elizabethan England. John Aubrey recorded that the bar had expected from the Lord Chief Justice “a commentary on Littleton’s Tenures, and he left them his commonplace book” – a sprawling survey that the modern common law took for a foundation.  As Sir Edward’s published works wore off their titles, they became eponymous.  Coke the judge became Coke the authority.  To this critical chapter of legal history, Sir John has supplied a magnificent commentary.