Bureaucracy: The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminall Causes

Coke, Edward. The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminall Causes. London: Printed by M. Flesher for W. Lee and D. Pakeman, 1648. Print.

About

This edition of the third part of Edward Coke’s Institutes of the Laws of England was published in 1648. Like all of Coke’s other works, these materials played an important role in the seventeenth-century English turn toward modern notions of legal authority that rejects idiosyncrasy. Whereas the practice and very processes of law had previously depended upon the independent and often inconsistent decisions of individual leaders or jurists, Coke advocated a more systematic and consistent legal practice based on knowledge distilled from the history of English common-law decision-making. His Institutes represented a repository of this distilled wisdom that was composed alongside an equally important and influential set of reports of specific cases that Coke had observed and taken part in.

Where Coke’s Reports concern themselves with documents significant particular actions and decisions in law, the Institutes consolidate principles from particulars. One motive for shifting law onto an ostensibly more solid base of received wisdom was that English law could thereby imitate the more rigid form of civil law employed by ancient Romans. Rather tellingly, Coke’s book takes its title from Justinian’s Institutes, a sixth-century codification of Roman law. Justinian’s influence can be seen in the extensive detail found in Coke’s Institutes as well as in its reformist inclinations. The parts of Coke’s Institutes on display here differ, however, from those of Justinian as they deal with public laws that serve to organize the state. For their part, Justinian’s Institutes dealt only with private, individual law, or the ways in which lawyers could abide within an already established public law (Helgerson 236). As such Coke’s Institutes imitated certain aspect of written Roman law while providing precedent for idea of consistent public law that proved vital to development of legal institutions in early modern England, British America, and the early United States.

Most of Coke’s Institutes were not published until after his death. This delay stems from a basic political reason: they championed the rule of law—the “artificial reason” of judges (Boyer)—over other kinds of civil and governmental authority. This vision of a world bound together by an idealized code would animate many portentous legal battles in centuries to come; and this vision was not easily accepted in Coke’s own time. In Coke’s opinion, expressed both to King Charles I personally and within his Institutes, only judges and lawyers could accurately interpret the law (Bodet 469). This contention caused Charles I to seize Coke’s manuscripts after his death in 1634, although Parliament released and published these manuscripts seven years later (Helgerson 237).

The third and fourth parts of Coke’s Institutes are structured according to a system of reference. Coke divides his treatises into parts, each treating a particular aspect of English law. Each part is then divided into smaller sections that expand upon the meaning of formerly used words. These explanations most often involved precedents cited by Coke. For example, in his explanation of what constitutes treason, Coke references the definition and parameters given within the 1352 English Magna Carta (Bodet, 471). This kind of referential practice represented the law as a system evolving organically and perfected over time rather than as an imposition granted ascendancy without consensus. By consolidating legal principles as existing beyond individual authorities, the Institutes position the nation’s legislation and judicial decisions as above (rather than synonymous with or beneath) monarchic power. For law to gain such ascendance it must, as Coke’s writings demonstrate, have an observable consistency that can be documented, communicated, and referred to when needed.

Ironically, given the rationality and order Coke privileged, many prominent figures of English law such as James Stephens, Lord Keeper North, and William Blackstone criticized what they perceived as a sense of disorderliness inherent in the structure of Coke’s Institutes. In his own time, Coke claimed that this kind of disorder actually aided in the reader’s education insofar as he had to decipher the order and reason behind the written law for himself (Helgerson 242). The system of evidentiary cross-references makes the Institutes suitable for formal education in law, but it could also provide non-professionals with information regarding how legitimate judicial processes ought to move forward.

Although the first part of the Institutes played a much more influential and immediate role in English law, those accused of treason often cited the third part of Coke’s Institutes in their defense throughout the second half of the seventeenth century. This kind of appeal had virtually no influence on the outcome of such cases (Bodet 473). The third part of the Institutes did, however, aid in granting the accused an actual, if ineffectual, voice during their court trials. Previous to the third part’s publication, the accused played no active role during their trial (Bodet 471).

Find The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminall Causes in the UNT Libraries Catalog.