Sir Edward Coke, lawyer and judge
Sir Edward Coke (1552-1634) was a lawyer, Member of the English Parliament, and respected judge. He is considered one of the leading defendants of the Common law in front of the equity law.
Sir Edward Coke wrote a voluminous set of glosses on aspects of English law known as The Institutes.
One of his most famous writings was:
“And where also by the statute called the Great Charter of the Liberties of England, it is declared and enacted that no free man may be taken or imprisoned, or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land; and in the 28th year of the reign of King Edward the Third it was declared and enacted by authority of parliament that no man, of what state or condition that he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death without being brought to answer by Due Process of law. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of the realm to that end provided, divers of your subjects have been of late imprisoned without any cause shown, and when for their deliverance they were brought before your justices by your Majesty’s writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty’s special command, signified by the lords of your Privy Council, and yet were returned back to several prisons without being charged with anything to which they might make answer according to the law….
They do therefore most humbly pray your most excellent Majesty that none hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament. And that none be called to make answer, or to take such oath, or to give attendance, or to be confined, or otherwise molested or disquieted concerning the same, or for refusal thereof. And that no free man, in any such manner as is before mentioned, be imprisoned or detained. And that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come. And that the aforesaid commissions for proceeding by martial law may be revoked and annulled. And that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed, as aforesaid, lest by color of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchises of the land.”
Explaining one of the most important sections of the english Magna Carta, he described the nine “branches” which formed the “tree of liberty” in his opinion:
That no man be taken or imprisoned, but per legem terrae, that is, by the Common law , Statute Law, or Custome of England; for these words, Per legem terrae, being towards the end of this Chapter, doe referre to all the precedent matters in this Chapter, and this hath the first place, because the liberty of a mans person is more precious to him, then all the rest that follow, and therefore it is great reason, that he should by Law be relieved therein, if he be wronged, as hereafter shall be shewed.
No man shall be disseised, that is, put out of seison, or dispossessed of his free-hold (that is) lands, or livelihood, or of his liberties, or free customes, that is, of such franchises, and freedomes, and free customes, as belong to him by his free birth-right, unlesse it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and processe of Law.
No man shall be out-lawed, made an exlex, put out of the Law, that is, deprived of the benefit of the Law, unlesse he be out-lawed according to the Law of the Land.
No man shall be in any sort destroyed (Destruere. i. quod prius structum, & factum fuit, penitus evertere & diruere) unlesse it be by the verdict of his equals, or according to the Law of the Land.
No man shall be condemned at the Kings suite, either before the King in his Bench, where the Pleas are Coram Rege, (and so are the words, Nec super eum ibimus, to be understood) nor before any other Commissioner, or Judge whatsoever, and so are the words, Nec super eum mittemus, to be understood, but by the judgement of his Peers, that is, equalls, or according to the Law of the Land.
We shall sell to no man Justice or Right.
We shall deny to no man Justice or Right.
We shall defer to no man Justice or Right.”
He made this clear: “No man shall be taken, (that is) restrained of liberty, by petition, or suggestion to the King, or to his Councell, unlesse it be by indictment, or presentment of good, and lawfull men, where such deeds be done.This branch, and divers other parts of this Act have been notably explained by divers superseded Acts of Parliament, &c. quoted in the margent.”
The root of this tree for Sir Edward Coke was “No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties … but by lawful judgment of his Peers, or by the Law of the Land.”
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