57 RI Bar J., No. 3, Pg. 45. Sir Edward Coke: Defender of the Common Law.

• Author: B. Mitchell Simpson, III, Esq.

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 3, Pg. 45.

Sir Edward Coke: Defender of the Common Law

Rhode Island Bar Journal 57 RI Bar J., No. 3, Pg. 45 November/December 2008 Sir Edward Coke: Defender of the Common LawB. Mitchell Simpson, III, Esq.Adjunct Professor of Law at Roger Williams University School of LawOn the lintel above the bench where the Supreme Court Justices sit is the Latin inscription, Non sed sub homine sed sub Deo et lege (Not under man but under God and the law). It encapsulates the concept of judicial independence fundamental to our republic. It is the reply in 1608 of Sir Edward Coke, Chief Justice of the Court of Common Pleas, to King James I when the King maintained that he was above the law and, thus he could decide cases. The idea that a king is under the law was a radical idea at the time.

By the 17th Century, England had emerged from the Middle Ages and was developing into a modern commercial state under the rule of law. Throughout his long career as lawyer, Attorney General, judge and Member of Parliament, Coke insisted that common law had existed since time out of mind, that it was both the warp and woof of English society and that it applied to, governed and regulated all aspects of life in the realm, including the king.

Under James I (1603-1625), Coke, as defender of the common law, was faced not only with a king who fervently believed he ruled by divine right, but also the Chancery, Admiralty and ecclesiastical courts that sought to introduce and apply the continental civil law to the derogation of the common law with the resulting infringement of the rights of Englishmen under the common law. As Chief Justice of the Court of Common Pleas, Coke fought back by issuing numerous writs of prohibitions to these courts on grounds they were exceeding their jurisdictions. These courts were not established under the common law, but by the royal prerogative.

The jurisdictional problems the writs addressed were very real. For example, litigants sought review of Common Pleas (law) decisions in Chancery (equity) to circumvent the appeal process; and ecclesiastical courts were fining and imprisoning people without benefit of a jury trial or even appeal. The writs of prohibition solved these individual problems, but, in the aggregate, they led to larger problems. Both the Lord Chancellor (equity)...