“The Fundamental Code of the English Law”: Thomas Jefferson and Edward Coke’s Institutes of the Lawes of England

Many disciplines have them--the weighty tomes that seem impossible to read, let alone comprehend. For many students, carrying around these books, reading them, and more importantly, complaining about them, becomes a rite of passage.

This was how many early American law students felt about an important book in the 1828 Catalogue Collection: Sir Edward Coke’s Institutes of the Lawes of England, and specifically, part one, often referred to as Coke on Littleton. Coke’s Institutes is widely understood to be the first textbook of modern English common law. As a result, it’s not surprising that it played a significant role in the legal education of Thomas Jefferson and in the first law library of the University of Virginia.

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Born in 1552 in Norfolk, England, Sir Edward Coke was a prominent lawyer, legal writer, and politician. After studying at Cambridge University and the Inner Temple, he started working as a lawyer in 1578. Coke participated in some of the most notable political trials of the Elizabethan era. As Attorney General, Coke prosecuted Sir Walter Raleigh, founder of the ill-fated Roanoke Colony, for treason in 1603. Raleigh was charged with participating in the “Main Plot,” an allegedly Spanish-funded effort to overthrow Elizabeth I’s successor, James I. In what one historian refers to as “the bitterest proceeding” of Coke’s career, Coke leveled invective language at Raleigh. “Thou viper, thou hast an English face, but a Spanish heart...thou art the most vile and execrable traitor that ever lived.”^[1]

Coke did his work well. Raleigh was found guilty and sentenced to death, only to be spared by the King and confined to the Tower of London until 1616. James I later pardoned the ambitious Raleigh on the condition that he not engage in hostilities with the Spanish, a pledge he could not uphold. In 1618, the King reinstated Raleigh’s death sentence. Later that summer, the English state relieved Raleigh of his head.^[2]/p>

Among lawyers and legal scholars, Coke is best remembered for his legal texts. The first, Reports, is a mammoth 13-volume work written in Norman French, and published in serial form from 1600 to 1615.^[3] Reports was Coke’s attempt to offer a written record of court cases for contemporary readers, which lawyers and law students could use to consult prior cases and legal precedent. Coke compiled 467 cases and offered an essay on the legal themes introduced in each case. As Francis Bacon, the eminent philosopher and Coke’s contemporary, wrote, “Had it not been for Sir Edward Coke’s reports...the law, by this time, had been almost like a ship without ballast.”^[4]

In 1628, Coke published what many deem his masterpiece: Commentaries upon Littleton, the first of four volumes in Coke’s Institutes of the Lawes of England. Unlike Reports, Coke wrote Institutes in English as part of a broader effort to make the law more accessible to readers.^[5] Originally intended as a glossary to Thomas Littleton’s Littleton on Tenures (c.1481), a treatise on property law, Coke on Littleton offered long, broad-ranging entries that defined modern English common law. For instance, Coke took eighteen pages to annotate the first--and very short--paragraph of Tenures. *IMAGE. For its exhaustive explication of Littleton, as well as Coke’s own insights into the law, Coke on Littleton became a popular guide for students.

Coke’s verbosity was notorious. Legal historians regularly point out, for instance, that he “delighted in wandering off at tangents.” “He wrote like an old wizard,” historian J.H. Baker wrote, “anxious to pass on all his secrets before he died, but not quite sure where to begin or end.” And those secrets touched on many topics impacting English property and land law, including etymology, interest rates, deeds. Yet, as Baker noted, they also stretched into “alien status...the precedence of earth over the other elements, the correct Latin words for ponds, marshes, rushes, willows, elders and boileries of salt, the Domesday Book” and even “the styles and titles of the kings of England.”^[6]

Still, Coke’s Institutes proved revolutionary for the development of English common law. As Allen Boyer notes, “Wherever the common law has been applied, Coke’s influence has been monumental.”^[7] Indeed, while Americans might know William Blackstone as the English theorist who had the greatest influence on the development of American law, scholars note that Coke proved instrumental for presenting cases and judicial opinions, which Blackstone then expanded. For instance, Coke helped develop the notion of legal integrity, or that the law should remain pure and protected from sullying by outside forces such as monarchical overreach. Coke developed this sentiment while serving as a judge of the Common Pleas Court.He expanded on it in Institutes by discussing the history of Parliament and its judicial function, which Coke defined as the preservation of subjects’ liberties.^[8] 

As one scholar notes, Coke on Littleton, in particular, championed Thomas Littleton’s ideas as “the foundation for all subsequent property law to Coke’s own day.” Rather than consulting “Year Books” for prior cases, which were printed collections of cases organized by regnal year, any lawyer interested in land law, which impacted everything from enclosure in England to the colonization of America, could simply turn to Coke’s account of Littleton.^[9] For many of these same reasons, Coke’s text became standard reading for law students.

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Thomas Jefferson initially cursed the physical and intellectual heft of Coke on Littleton. Jefferson first encountered the text while studying law under the mentorship of George Wythe, a prominent attorney and future member of the Virginia House of Burgesses. Indeed, one historian suspects that Coke on Littleton initiated Jefferson’s legal education. The fact that Jefferson gave away many books that Wythe bequeathed to him upon his 1806 death but saved Wythe’s copy of Coke’s Institutes reinforces this point.^[10]

Christmas Day, 1762, arrived to find Jefferson in a dreadful mood at Fairfeld, a friend’s plantation not far from his own home at Shadwell. In a letter to his friend John Page, Jefferson wrote: “I am sure if there is such a thing as a devil in this world, he must have been here last night and have had some hand in contriving what happened to me.” Jefferson described rats eating his pocketbook and carrying away his garters, although he admitted “rats will be rats.” But then the rain started, which had ruined his watch and a picture of Rebecca Burwell, the woman Jefferson was courting. And to top it all off, Jefferson was worried about how he’d ever get through Coke.

“Often I fear for my peace of mind, and too often I am sure to get through Old Cooke [Coke] this winter: for God knows I have not seen him since I packed him up in my trunk in Williamsburgh,” Jefferson wrote. “Well, Page, I do wish the Devil had old Cooke, for I am sure I never was so tired of an old dull scoundrel in my life.”^[11]

Finishing Coke felt like an accomplishment for experienced lawyers, let alone law students. Yet, Jefferson quickly learned to appreciate, and, eventually, admire Coke and his writings. In 1814, Jefferson maintained that “Coke’s Institutes are a perfect Digest of the law.”^[12] In his Institutes, Coke harmonized “all the decisions and opinions which were reconcilable, and rejecting those not so. this work is executed with so much learning and judgment that I do not recollect that a single position in it has ever been judicially denied,” Jefferson wrote. Jefferson admitted that “the work loses much of it’s value by it’s chaotic form,” yet, “it may still be considered as the fundamental code of the English law.”^[13]

For this reason, Jefferson imposed Coke on law students who sought his guidance.^[14] In particular, Jefferson told students to read Coke’s Institutes and Reports first, and Blackstone, last.^[15] Most cruelly, he assigned Coke to Charles Lewis Bankhead, his grandson-in-law, at Christmas, just as George Wythe had done to him. Writing to Bankhead’s wife, Anne Randolph, Jefferson teased, “Mr. Bankhead I suppose is seeking a Merry Christmas in all the wit and merriments of Coke Littleton. God send him a good deliverance.”^[16]

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Since Jefferson considered Coke to be the best English lawyer, he privileged Coke’s Institutes when he was deciding which legal texts should be purchased for the University of Virginia’s library.^[17] By that time, John Henry Thomas had organized Coke’s annotation of Littleton, which made it easier for students to access. As a result, in 1825, Jefferson advised purchasers to make Thomas’s A Systematic Arrangement of Lord Coke’s First Institute of the Laws of England the highest priority. It “will in fact be the elementary book of the school,” Jefferson wrote. He still, however, expected students to consult Coke’s Institutes and instructed it to be purchased, as well.^[18] 

 The 1828 Catalogue project team has uncovered details that help trace the arrival of Coke texts in UVA’s library. In 1825, Nicholas Philip Trist, Jefferson’s grandson-in-law, assembled a list of books that his wife’s grandfather wanted in the library. In the category labeled “Common Law” Triste recorded the following Coke texts:

• John Henry Thomas, A Systematic Arrangement of Lord Coke’s First Institute of the Laws of England: on the plan of Sir Matthew Hale’s analysis; with the annotations of Mr. Hargrave, Lord Chief Justice Hale, and Lord Chancellor Nottingham; and a new series of notes and references to the present time: including tables of parallel reference, analytical tables of contents, and a copious digested index (London, 1818)
• William Hawkins, An Abridgment of the First Part of Lord Coke’s Institutes: with great additions, explaining many of the difficult cases, and shewing in what points the law has been altered by late resolutions and acts of Parliament (London, 1751)
• Edward Coke, A Book of Entries: Containing Perfect and Approved Presidents of Counts, Declarations, Informations, Pleints, Indictments, Barres, Replications, Rejoynders, Pleadings, Processes, Continuances, Essoines, Issues, Defaults, Departure in Despight of the Court, Demurrers, Trials, Judgements, Executions, and All Other Matters and Proceedings (in Effect) Concerning the Practick Part of the Laws of England, in Actions Real, Personal, and Mixt, and in Appeals. Being Very Necessary to Be Known, and of Excellent Use for the Modern Practice of the Law, Many of Them Containing Matters in Law, and Points of Great Learning (London, 1671)
• George Wilson, The Reports of Sir Edward Coke, Knt. in English, in thirteen parts complete, with references to all the ancient and modern books of law, exactly translated and compared with the First and last edition in French, and printed page by page with the same. [1572-1616] to which are now added, the restrictive pleadings, in English. The whole newly revised, and carefully corrected and translated, with many additional notes and references (London, 1776)

As the books arrived in Charlottesville, John Kean, a student who took on the diligent duty of serving as university librarian, kept a running list. Under the heading entitled “Common Law”, he wrote down, plainly and simply, “Coke’s Institutes.” The first--and for Jefferson, most important--Coke text had arrived.

Three years later, a Charlottesville firm published a catalogue of all the books in the UVA library assembled by William Wertenbaker, the second University Librarian. This catalogue included 375 legal texts, which comprise the 1828 Catalogue Collection. Jefferson died on July 4, 1826, two years before the catalogue was published.

Although he did not live to see the 1828 Catalogue in print, all four Coke texts that Jefferson selected appeared in the library. Furthermore, almost all were the precise editions that Jefferson had requested. Purchasers had only been able to obtain an 1822 edition of Hawkins’s abridgment, not the 1751 edition that Jefferson had asked for. But the library did obtain an additional edition of Coke on Littleton, this time by Francis Hargrave and Charles Butler. Early library check-out records show that in 1825, George Tucker, a professor of moral philosophy, gave his permission to help two students, Edgar Mason and Henry Shackelford, check out Coke on Littleton. The next year students checked out Coke’s texts on eight different occasions. Furthermore, Coke upon Littleton appeared on the syllabi of John A.G. Davis, UVA’s second professor of law.^[19]

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 Of the five Coke texts in the UVA library, three were abridged or edited versions of Coke on Littleton, a testament to how important the text was for Jefferson and the development of early American law, more generally. Today, brave souls can read the text in its entirety in the 1828 Catalogue...just maybe not during a holiday season.

Further Reading:

• Baker, J.H. An Introduction to English Legal History. 4th Edition. New York: Oxford University Press, 2005. 
• Bowen, Catherine Drinker. The Lion and the Throne: The Life and  Times of Sir Edward Coke. Boston: Little, Brown & Co., 1957.
• Boyer, Allen D. Sir Edward Coke and the Elizabethan Age. Palo Alto, CA: Stanford University Press, 2003.
• Boyer, Allen D., ed. Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke. Indianapolis: Liberty Fund, 2004.
• White, Stephen D. Sir Edward Coke and the “Grievances of the Commonwealth,” 1621-1628. Chapel Hill: University of North Carolina Press, 1979.