Wanna know when this baby was published? 1628. Like almost 400 years ago.
Sir Edward Coke is one of the great legal legends, whose various writings, including The Institutes, as well as fundamental decisions he made as a judge, have influenced the common-law and constitutions of countries around the world, including Canada, the United States, and of course England.
To put Coke in context, he lived, judged, and wrote during the reign of Charles I, famously known for causing the English Civil War with his abuses of power, and then losing the war to Oliver Cromwell and the Roundheads. (Charles I would lose his head shortly thereafter, in 1649.)
Interestingly enough (or maybe not), Coke’s rulings on the limitations of power are supposed to have contributed to the conflict.
But although Coke mentions this maxim, Coke apparently wasn’t the one who came up with it. In The Institutes, Coke is of course writing on another work by an even earlier legal titan – the Treatise on Tenures by Sir Thomas de Lyttleton, or just plain Thomas Littleton (1401-1482). Littleton’s life overlapped with the War of the Roses between the House of Lancaster and House of York, which began in 1455. However, Littleton did not live long enough to see who won (Henry Tudor of Lancaster, who became Henry VII of England, otherwise known as Henry VIII’s dad).
It is not known when exactly the Treatise on Tenures was written, but estimates put it around 1465-66. It is most likely the first legal textbook ever written in English, and was also one of the first books ever printed. You know, after Gutenburg finished with the Bible after he invented the printing press in 1440.
What the sources say is that this is where Coke got:
Quando aliquid prohibetur ex directo, prohibetur et per obliquum
You cannot do indirectly what you cannot do directly.
Littleton’s treatise was on property law, and everything seems to suggest that he gave this example:
A tenant was prohibited from assigning his interest in his lease with his landlord to any of the tenant’s creditors. So, the tenant tried to get around it by assigning his interest to someone else, who would then assign it or otherwise transfer the interest to the creditor to pay off the tenant’s debt.