2015 Selden Society lecture – the Hon Justice Patrick Keane on Sir Edward Coke


Your Honours, ladies and gentlemen welcome to the Selden Society of Australia’s lecture series for 2015. The title of this year’s
lecture series is Seven English Judges. Our seven English judges have been selected with great care, each of them lived in succeeding eras from Tudor times through to the 21st
century. And each made contributions to the law of such significance that their name
and achievements remain familiar to us even today The first judge in the series is Sir Edward Coke
who was born in 1552, just before the reign of Elizabeth and lived to the then great age
of 82, in the reign of Charles I. In modern Queensland Coke’s name seems to
be invoked on any occasion when the executive wishes to symbolically hand the key of a new
courthouse to the judiciary. He’s held out as the epitome of judicial integrity and
independence. But is that reputation really deserved? To help us with that question tonight,
I’m honoured to introduce the first speaker in this year’s series Justice Patrick Keane
of the High Court of Australia. Please join me in welcoming Justice Keane. Thanks very much John. Colleagues, last Monday
four hundred and thirty-seven years ago, Edward Coke, one of the most famous lawyers in history, was called to the bar at Westminster Hall. In 1935 Sir William Holdsworth said of him,
“What Shakespeare has been to literature, what Bacon has been to philosophy and what the translators of the authorised version of the Bible have been to religion, Coke has been
to the public and private law of England.” And in North America, Coke has long been venerated as the common law’s greatest sage. English commentators have, in the main, tended to be somewhat less enthusiastic in their estimate of Coke, than Holdsworth or our American colleagues. Samuel Thorne of the Selden Society said that Coke was “an unpleasant, hard, grasping, arrogant, and thoroughly difficult man”. As a barrister, legal scholar, parliamentarian, and judge, he embodied some of the very best and some of the very worst traits of the Elizabethan Age. He was vain to the point of folly (he refused, all his life, to wear glasses despite
being profoundly short-sighted): he had an appalling temper which led some who knew him well to think he was mad; and he was brazen and energetic as a self-promoter. He stood out in that regard
in an age teeming with brazen and energetic self-promoters. At the same time, however,
he was a courageous, passionate and vigorous defender of his view of the rights of ordinary
Englishmen with whom he was very popular. In the turbulent age in which Coke made his
mark in the history of ideas, he was at the very centre of some of the most dramatic moments
in England’s history. Medieval and modernising ideas of law and government swirled and clashed
in the dangerous currents of Elizabethan and Stuart politics. Coke’s life and work were
shaped by the violent tensions between conservative, medieval ideas of natural law and the central
importance of the customs of the realm, the radical claims of a divinely ordained monarchy
to absolute power, and emerging notions of nationhood and sovereignty dependent upon
the consent of the governed which would, in due course, find fuller, but very different,
expressions in Hobbes’ Leviathan published in 1651, and Locke’s Second Treatise on Government
published in 1689. It would be simplistic and wrong to see in
Coke’s work the vindication of the modern mind over the medieval, he was too inconsistent
to be neatly compartmentalised. And his inconsistencies were such as to throw into doubt, both the
veneration of Coke as “a hero judge”, and the very notion that the common law can be
sensibly understood as the product of the work of hero judges. But the brief survey
of Coke’s work as a barrister, parliamentarian, scholar and judge which follows, can I think,
leave no doubt that it is entirely fitting that the Australian branch of the Selden Society’s
series on the lives of great English judges should begin with him. Coke was born, as John said, in 1552. He grew
up with seven sisters in Norfolk, and following the death of his father at age nine, went
off to school at the Free Grammar School in Norwich. He learnt his Latin early but the
most important of his early, formative influences was the Church of England. As Catherine Drinker
Bowen says, in her magisterial 1957 biography, The Lion and the Throne: “There is no overestimating the effect of … burning
missionary Protestantism on the young Edward Coke. Morning and evening the boy knelt with
his fellows on the stone schoolroom floor and chanted the Lord’s Prayer and the Creed,
in English from the recently established Book of Common Prayer. The words, English and Protestant
since time immemorial, they had been Latin and Catholic, they reached very deep into
Coke’s life. He lived and died as his daughter was to testify
— “a Church of England man, ‘a deare lover of its Liturgie, constant to it
in his life and at his death.’” In the autumn of 1567, Coke set off for Trinity
College, Cambridge. That was the university favoured by Queen Elizabeth, it was, unlike
Oxford, a Protestant stronghold. We tend I think to associate Cambridge at
this time with that strain of fiery evangelical Protestantism celebrated in its great Puritan
graduates, the most famous of whom was Oliver Cromwell, but there were many other important,
albeit less radical, Protestants produced by Cambridge. As Macaulay said: “Cambridge
had the honour of educating those celebrated Protestant Bishops whom Oxford had later the
honour of burning.” Coke was virulently anti-Catholic. But notwithstanding his later clashes with the ecclesiastical courts and the royal prerogative, his world view
remained very much in the Anglican mainstream. He was an Episcopalian rather than a Puritan.
And as a committed Anglican, he was also a proud Englishman. He was the eloquent champion of
English legal exceptionalism. His exalted view of the supremacy of the common law of
England was of a piece with his belief in the inferiority of the institutions and perhaps
the people of continental Europe. His anti-Catholicism suffused his opposition to all things foreign
such as European people and ideas generally and the courts of equity in particular. At Cambridge, he studied rhetoric and dialectics.
“Disputations” were overseen by the Doctors of the University they took place in Latin
and in public, in Great St Mary’s Church in Cambridge. He became a skilful debater. After three years, he left Trinity College
without obtaining a degree, which was not unusual at that time and travelled to London
to set his sights on becoming a barrister. After completing a year’s study of law at
Clifford’s Inn, Coke made his way across Fleet Street to join the fellowship of the Inner
Temple where, for seven years, he studied law. In 1578, as I’ve mentioned, he was admitted to
the bar. He immediately travelled back to Norfolk, finding himself at the right time
and in the right place for his first big case. It was a libel suit that involved great names
and the abiding English controversy over religion. Coke’s client was an orthodox Vicar of the
Church of England. He had accused Lord Henry Cromwell, the grandson of Thomas Cromwell,
of sedition by reason of Cromwell’s puritanism. Cromwell sued Coke’s client for damages under
the ancient legislation intended to prevent people speaking ill of the aristocracy,
the statute Scandalum Magnatum. “Coke discovered a mistake in the written declaration of Cromwell’s
counsel — only one word, but it was enough. The original act of Scandalum Magnatum had
been, since its passage in 1378, translated from Latin into law French, then into English.
Cromwell’s lawyer, instead of referring to the original statute in its original terms,
had been content to use a third-hand English version which rendered the French word messoinges
that is (lies) as ‘messages’. Translating this back into Latin in his pleading, Coke’s opponent
wrote the word nuncio (Latin for messages), ‘whereas’ Coke pointed out triumphantly to
the court, ‘it should have been mendacia that is lies.’” On that basis Cromwell’s case was thrown out,
and Coke’s reputation was made. Then his career took off on the basis of this piece
of pettifogging pedantry says as much about the legal system of the time as it says about
Coke’s talent as a lawyer. From 1579 to 1581, he was involved as counsel
for one of the defendants in the famous Shelley’s Case, and from there onwards started to appear
without a leader in important cases. In 1582, he married his first wife Bridget
Paston who was then aged 17. Bridget was a devoted wife and mother. She bore him 10 children
over 15 years. She also made him a very rich man, her dowry was £30,000 which was in those
days literally a King’s ransom. Coke’s rise through the ranks of the Bar coincided
with the extraordinary intellectual flowering of the Elizabethan Age, brilliant diamonds
such as Sir Philip Sydney, Walter Raleigh, Edmund Spenser, Christopher Marlowe, John
Donne, Ben Johnson, William Shakespeare, and, a little later, the brilliant scholars who
produced the King James Bible. In 1592, Elizabeth named Coke Solicitor-General,
making him second among the government’s lawyers to Sir Thomas Egerton the Attorney-General,
who later became Lord Ellesmere. Six months later, Elizabeth named Coke Speaker of the
House of Commons. Given Coke’s later reputation as a champion
of the common law, it should be noted here that, as Speaker of the House of Commons between
1592-1593, he exalted the position of Parliament as “the great corporation or body politic
of the kingdom”. Significantly, for the man who as a judge would write the judgment in
Dr Bonham’s Case, he was, in the role of Speaker, disposed to assert Parliament’s “absolute
powers”. Here, we get an early glimpse of Coke as an
example of what might be called the Thomas Becket Syndrome. That is the condition, common
to the great careerists, whereby the beliefs and allegiances of an office holder change
to accommodate the requirements of the office that he or she currently holds. Coke’s time as Speaker was short. Encouraged
by his evident powers of persuasion and angered by a speech given in Parliament by Francis
Bacon, Coke’s great rival, questioning the Crown’s attempts to secure supply, Elizabeth
settled upon Coke, rather than Bacon, as her next Attorney-General. On 10 April 1594, “Elizabeth
signed letters patent advancing Thomas Egerton to the vacant office of Master of the Rolls … and granting the Attorney-Generalship to Edward Coke.” Coke’s time as Attorney-General was marred,
four years later, by the death of his wife in June 1598. He remarried immediately. His choice of bride,
Lady Elizabeth Hatton, was entirely opportunistic. Lady Hatton was wealthy and well-connected,
being related to the all-powerful Cecils. Coke pursued her with unseemly haste. He
buried Bridget Paston in July 1598. He proposed to Lady Hatton in August and they were married
in November. This was all to the chagrin of Bacon, who also had his eye on Lady Hatton. As Attorney-General, in 1594, Coke prosecuted
the Queen’s personal physician, Dr Lopez. In 1597, he prosecuted the Jesuit priest,
Father Gerard, whose crime was his inability to declare, without equivocation, his complete
loyalty to the Queen of England as distinct from the Pope in Rome. As a barrister, Coke appeared in many important
cases, but there are three trials which are particularly memorable: the trial of the Earl
of Essex, the trial of Sir Walter Raleigh, and the trial of Guy Fawkes. Tonight we will
have time to look only at his role in the trial of Sir Walter Raleigh. Queen Elizabeth died on 24 March 1603. When the news of her death reached Edinburgh,
James VI of Scotland left Holyrood Palace and made for London to become King James I
of England. There was general rejoicing throughout the country as James made his triumphal progress
through the English countryside. But on the journey an incident occurred, news
of which spread quickly. At Newark-on-Trent a thief was caught. He had been following
James’ procession and cutting purses. Without any trial or hearing as to sentence, James
ordered that the thief be hanged. Sir John Harrington hearing of the incident wryly observed: “I heare oure new King hath hanged one man
before he was tried, ‘tis strangely done: now if the winde bloweth thus, why may not
a man be tried before he hath offended?” Events would prove that Harrington’s concerns
were not idle. So far as James was concerned, the principle
Quod principi placuit legis habet vigorem —that is to say what pleases the prince
has the force of law—justified the hanging and anything else. Coke’s vigorous opposition
to this principle, both on the Bench and later as a parliamentarian, secured his place in
history. The Trial of Raleigh. After the accession
of James I, Sir Walter Raleigh, and we know that’s how his name really was pronounced
because of a pun made by James on meeting him, James said I have heard rawly of you,
R-A-W-L-Y. Raleigh had been Captain of Elizabeth’s Guard, he sought the position of Captain of
the Guard under James, but was passed over. James took again the debonair and supposedly
atheist Raleigh. He was not content to just dismiss him from Court he ordered him
to vacate Durham House, where he lived in London. Raleigh protested, but in vain, and
royal spies were sent to watch him. They noted that there were late night meetings at Durham
House between various men, including Lord Cobham and the Earl of Northumberland. The
King grew suspicious, on the basis of this pretty flimsy evidence, that a plot was being
hatched to kill him, and Raleigh was arrested on a charge of high treason. He was kept in the Tower for four months.
Meanwhile, Coke gathered confessions from other prisoners, principally Lord Cobham. To speak of Raleigh’s “trial” is misleading,
it was more of a “show trial” in fact, it was really just a “show”. One conclusion that
emerges from a study of the record of the trial is that Sir Walter Raleigh was an impressive
man, as well as one who was not guilty of the charge brought against him. While Coke’s conduct in the trial cannot accurately
be judged by reference to the standard expected of prosecutors today, that there can be no
denying, even by the standards of his time, his performance was grossly unfair.
Coke lashed out at Raleigh at the beginning of the trial “To whom, Sir Walter, did you
bear malice? To the royal children?” Raleigh objected to the assertion that he bore malice
to anyone. Coke continued: “I will then come close to you, I will prove
you to be one of the most notorious traitor that ever came to the bar! … Your words cannot condemn me [replied Raleigh];
my innocency is my defense. I pray you go to your proofs. Prove against me any one thing
of the many that you have opened, and I will confess all, and that I am the most horrible
traitor that ever lived, and worthy to be crucified with a thousand torments. [Nay Coke
said] I will prove all. Thou art a monster! Thou hast an English face but a Spanish heart
… I look to have good words from you, and purpose not to give you worse than the matter
press me unto. But if you provoke me, I will not spare you and I have warrant for it … You
have stirred England and Scotland both. You incited Lord Cobham.” Coke the proceeded to read Lord Cobham’s confession
that he, that is Cobham, acted with malice towards the King. Raleigh responded with the
obvious point: “What is that to me? Here is no treason of
mine done. If my Lord Cobham be a traitor, what is that to me? All that he did was by thy instigation, [Coke
replied] thou viper. For I thou thee, traitor!” That is to say that he referred to him in
the second person singular which was disrespectful. “I will prove thee the rankest traitor in all
England. No no, Mr Attorney, I am no traitor! [said Raleigh]. Whether I live or die, I shall
stand as true a subject as any the King hath. You may call me a traitor at your pleasure,
yet it becomes not a man of quality and virtue to do so. But I take comfort in it, it is
all you can do, for I do not yet hear that you charge me with any treason.” Chief Justice Popham felt the need to intervene.
“Sir Walter Raleigh,” he said, “Mr Attorney speaks out of zeal of his duty for the service
of the King, and you for your life. Be patient on both sides.” When Coke had finished shouting at Raleigh,
Raleigh asked: “Mr Attorney, have you done? Yes [said Coke], if you have no more to say.
If you have done [said Raleigh], then I have somewhat more to say. Nay, I will have the
last word for the King [said Coke]. Nay, I will have the last word for my life said Raleigh.
Go to, I will lay thee upon thy back for the confidentest traitor that ever came to the
bar! [Coke yelled]. Cecil [interjected, saying] be not so impatient, good Mr Attorney. Give
him leave to speak. Coke replied I am the King’s sworn servant and must speak. If I
may be patiently heard, you discourage the King’s Counsel and encourage traitors.” Coke reacted in what seems to have been a
not uncharacteristic display of petulance. The report notes: “Mr Attorney sat down in a chafe and would
speak no more until the Commissioners urged and entreated him. After much ado, he went
on and made a long repetition of the evidence for the direction of the jury. And at the
repeating of some things, Sir Walter Raleigh interrupted him and said he did him wrong.” Coke then shouted at Raleigh “Thou art the
most vile and execrable traitor that ever lived!” “You speak indiscreetly, uncivilly
and barbarously [Raleigh replied]. Thou art an odious fellow! [said Coke]. Thy name is hateful
to all the realm of England for thy pride. It will go near to prove a measuring cast
between you and me, Mr Attorney [countered Raleigh]. That is it’s a close run thing
between you and me. Well, Coke said I will now lay you open for
the greatest traitor that ever was. This, my Lords, is he that hath set forth so gloriously
his services against the Spaniard, and hath ever so detested him! This is he that hath
written a book against the peace [with Spain]. I will make it appear to the world that there
never lived a viler viper on the face of the earth than thou! I will show you wholly Spanish,
and that you offered yourself a pensioner to Spain for intelligence. Then let all that
have heard you this day judge what you are, and what a traitor’s heart you bear, whatever
you pretended.” Coke did not even attempt to make good these
allusions to Raleigh’s dealings with Spain by actual evidence. Raleigh countered by tendering a statement
signed by Lord Cobham, which Raleigh had obtained, denying, that is to say with Cobham denying,
“upon his soul” any treason on Raleigh’s part. Coke then presented a statement obtained by
him from Cobham the day before retracting the retraction Cobham had made to Raleigh.
In Cobham’s latest statement, he said: “I protest upon my soul to write nothing but
the truth.” This prompted Raleigh to make the wry observation to the jury: “You see
how many souls this Cobham hath.” Lord Cobham was available to give evidence
under oath, but was not called to do so. There were no other witnesses in the Crown case.
Even by the standards of the day, one couldn’t hang a dog on the case made by Coke, but it
did not take the jury long to reach a verdict of guilty of treason. Raleigh remained in
the Tower for some years before James finally had the sentence carried out. Coke’s involvement in this episode was shameful.
In 1995, a summary of the prosecution brief prepared for Lord Ellesmere was discovered.
It showed that after Cobham had made his statement implicating Raleigh, he had retracted it before
the investigators themselves. It’s inconceivable that Coke didn’t know of the retraction.
The shame is that he never mentioned it. Coke’s conduct in Raleigh’s trial was not
that much worse than his conduct in the trial of Essex had been, but, while there is a good
argument that Essex was rightly convicted, even though one may have reservations as to
whether it really had been proved that he intended to harm the Queen, in Raleigh’s case, Coke
was eagerly complicit in the judicial murder of a great man who was innocent of the charge
by which he was brought down. Speaking generally of Coke’s work as a barrister
and, particularly as a prosecutor, it is true that, in Coke’s time, criminal trial procedure
was very different from that with which we are are familiar. The accused was unrepresented
and was subject to interrogation by the prosecutor and the judge. He had no right to silence.
The prevailing theory was that the prosecutor and the judge could be relied upon to ensure
that the accused received a fair trial. Coke himself wrote in the Third Part of his Institutes:
“The Court ought to be … of counsel for the prisoner, to see that nothing be urged
against him contrary to law and right.” Coke’s conduct as a prosecutor went a long way to
demonstrating that this theory was pious folly. According to Professor Langbein, it was the
work of defence counsel, once legal representation came to be permitted, which forged the adversarial
system as we know it, with its in-built protections of the accused, including the right to silence
and the privilege against self-incrimination, this work taking place between the mid-17th
and as late as the 19th Centuries. It’s one of the ironies of history that the diligent
work of defence counsel most of the names of whom we don’t know, over the subsequent
decades, culminated in the accusatorial system of criminal justice with its protections of
the individual against the State, that this work was largely inspired as a reaction to
the kind of abuses perpetrated by Coke, the iconic defender of the liberty of the subject. It is telling, in this regard, that in the
eyes of King James, Coke’s performance as Attorney-General qualified him for promotion. In early 1606, Robert Cecil indicated that
appointment as Chief Justice of the Common Pleas might be in the offing. Coke, ever the
controlling pedant, wrote to Cecil advising him of the proper procedure: “I am bold to
inform you of what course I must take”, Coke said. “First, I must be made Serjeant, which may
be on Saturday next, and the Chief Justice on Monday. There must be a writ (for which
my Lord Chancellor will have warrant) returnable on Saturday to call me to be a Serjeant, and
a warrant for the patent of the office of Chief Justice of the Common Pleas.” In accordance with Coke’s instructions, he
was made a Serjeant-at-law on 20 June and was elevated to the Chief Justiceship on 30
June. As Attorney-General, Coke had been, as we
will see, a champion of the royal prerogative in its darkest aspect. As Chief Justice of
the Common Pleas, his attitude toward the prerogative of the King would undergo an almost
complete reversal. In his new position he became a spokesman for the institutional claims
of the courts of common law against the claims of the prerogative. Nicholas Fuller—a barrister and member
of Parliament and an enthusiastic Puritan —in the course of defending Puritan clients
on charges of contempt of the ecclesiastical court known as the High Commission, insulted
the bishops who constituted the court. He was imprisoned by them for contempt. The Court of Common Pleas issued writs of prohibition
restraining the ecclesiastical courts from proceeding further against Fuller on the basis
that the conduct of a barrister, even in an ecclesiastical court, was exclusively the
province of the courts of common law whose officer the barrister was. The King sought to resolve the case himself
in order to break what he perceived as an unseemly deadlock between his courts, which
he saw as mere agents through which he exercised sovereign power. James’ position was that
his prerogative was supreme, given that, as he put it, there were kings “before any Parliaments
were biden, or laws made”. He arranged for a meeting of the ecclesiastical and common
law judges to be held at Whitehall. The report of the meeting is called the Case of the Prohibitions.
At this meeting James said: “In cases where there is not express authority
in law, the King may himself decide it in his royal person, the Judges are but delegates
of the King, and the King may take what causes he shall please from the determination of
the Judges and may determine them himself.” Coke disagreed, saying the King may consult
with the Judges but not decide cases himself. Growing agitated, the King said: “as supreme head of justice, [he] would defend
to the death his prerogative of calling judges before him to decide disputes of jurisdiction. Moreover, he would ‘ever protect the common law.’ ‘The common law,’ Coke interjected, ‘protecteth
the King.’ ‘A traitorous speech!’ James shouted. ‘The
King protecteth the law, and not the law the King! The King maketh judges and bishops.
If the judges interpret the laws themselves and suffer none else to interpret, they may
easily make, of the laws, shipmen’s hose!’“ Coke’s report of the incident takes up the
story: “[T]hen the King said that he thought that the
law was founded upon reason, and that he and others had reason as well as the Judges: to
which it was answered by me, that is Coke, that true it was that God had endowed His Majesty with
excellent science, and great endowments of nature, but His Majesty was not learned in
the laws of his realm of England, and causes which concern the life, or inheritance, or
goods, or fortunes of his subjects and they are not to be decided by natural reason but
by artificial reason and judgment of law, which law is an act which requires long study
and experience, before that a man can attain to the cognizance of it: that the law was
the golden met-wand and measure to try the causes of the subjects, and which protected
His Majesty in safety and peace, with which the King was greatly offended, and said that
then he should be under the law, which was treason to affirm, as he said, to which I
said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege – that
the King should not be under man, but under God and the law.” Coke’s report of this famous incident ends
there, but we know from other sources that, in fact, the confrontation continued. The
King rejected Coke’s quotation from Bracton, and Coke fell weeping to his knees begging
forgiveness. But he was not beaten: “[n]ext morning a new
prohibition, under Coke’s seal, went out to the High Commission from the Court of Common
Pleas.” Coke championed the supremacy of the common
law as an essentially continuous body of law derived from Anglo-Saxon custom and reflecting
natural law as Coke saw it. His view was that the authority of the common law pre-dated
the Norman Conquest. But he was not a disinterested champion in this. His position was polemical
and political. In supporting the notion that the power of the King was itself the creature
of the common law, Coke was supporting the claim of the judges, of whom he was now leader,
to the lion’s share of sovereign power. As a legal historian, Coke’s scholarship was
seriously (and possibly even deliberately) deficient. The historical reality was that the English
judiciary were indeed the creature of Henry II and the judges were, directly dependent
on the King in whose name they dispensed justice throughout the realm. The judges of Henry’s
time even discussed their cases directly with him. As Ralph Turner has noted, the judges
at the time of the Angevin Kings often marked their cases “loquendum cum rege”, that is,
“to be discussed with the King”. And as noted by Edward Rubin, the researches
of Pollock and Maitland amply demonstrated that, as a matter of history, it is to Henry
II and his justiciars that we must look for the creation of the common law as a body of rules administered equally throughout the realm. In this, the better view of the historical
development of the common law, the King, and the sovereign power embodied in it, embodied
in the crown, was the true fountain of justice. The King was not a mere creator of the common law. We can detect echoes of Coke’s argument in the observations of Lord Steyn in the House of Lords’ in Jackson v Attorney General to the
effect that while the supremacy of Parliament is the basic principle of the United Kingdom constitution, the principle itself is a construct of the common law created by the
judges who might, in some circumstances, create qualifications to the principle. Admirers
of Henry II, or of Oliver Cromwell, would probably respond that the British constitutional
principle as to the Supremacy of Parliament might have been described by the judges of
the common law, but the principle that they were describing was established, as a political fact, by means other than the decisions of the courts. The second, and more obvious, point about this
episode is that Coke did not consistently maintain the view he then espoused. As we
have seen, when his interest in his own advancement coincided with the advancement of the office
which he held, he spoke in favour of the “absolute” authority of the Parliament. Coke’s conduct as Chief Justice of the Common
Pleas did not endear him to James and he fell into disfavour. Upon the death of Coke’s friend
Robert Cecil in May 1612, Coke’s arch-rival Francis Bacon was at last able to gain greater
influence with the King and Bacon sought to isolate Coke. Bacon’s opportunity came in August 1613, when Chief Justice Fleming of the King’s Bench died. Bacon proposed to the King that Coke
be removed from the Common Pleas and transferred to the King’s Bench. Bacon made the cynical
suggestion that “as Chief Justice, Lord Coke would see the coveted position of Privy Councilor
dangling ‘and thereupon turn obsequious.’“ The King agreed, and Coke became Chief Justice
of England on 25 October 1613. As Chief Justice of the King’s Bench, he continued
to frustrate the prerogative by promoting the supervisory jurisdiction of the common
law courts over what he regarded as inferior tribunals. Writs of prohibition were issued
to the Chancery and to the High Court of Admiralty. The jurisdictional war waged by Coke came
to a head in the Case of the Commendams, which concerned the right of the King to fill benefices
of the Church of England as they became vacant. When James became aware that it was being
argued in the Exchequer Court that the King had no right to fill these benefices, he commanded
Coke, by a letter from his Attorney-General Bacon, to halt proceedings until after he
had given the matter his personal consideration. Coke proceeded in defiance of the Royal instruction
and Coke drafted his famous letter to James, which was signed by 12 judges in which he
said “We have advisedly considered the said letter of Mr Attorney Bacon and with one consent
do hold the same to be contrary to law, and such as we could not yield to the same by
our oath.” The King responded by summoning the judges
to Whitehall. The King, in the presence of Ellesmere and 17 of his Privy Councillors,
demanded of the judges why they had not: “checked and bridled the ‘impudent lawyers’
who encroached not only on the prerogative but ‘upon all other courts of justice?’ The
Judges’ letter was itself ‘a new thing, very undecent and unfit for subjects to disobey
the King’s commandment, but most of all to proceed in the meantime.’” James then tore the judges’ letter up. The
12 judges fell to their knees begging pardon. Seeking to mollify the King, they humbly confessed
that their letter—drafted by Coke—was “wrong in form”. But while Coke would accept
that the letter might have been better expressed, he wouldn’t yield on the point of principle.
Still on his knees, he faced the King and said: “The stay required by your Majesty was
a delay of justice and therefore contrary to law and the Judges’ oath.” James described this response as “mere sophistry”,
and asked Ellesmere for his opinion on the lawfulness of the stay. The wily Ellesmere
was not to be drawn into this crisis between the King and his judges. In one of English
legal history’s most oleaginous moments, Ellesmere responded to the King’s question by saying
that the King’s Attorneys were better qualified than he to answer. Bacon seized his chance, and attacked the
judges for dereliction of duty. Coke, still on his knees, turned to Bacon and said: “I
take exception! The King’s counsel learned are to plead before the Judges, and not dispute
with them!” Bacon struck back: “A strange exception! By oath and office, the King’s
learned counsel are to proceed against judge, peer or House of Parliament, should the King’s
prerogative be called in question.” James agreed with Bacon, Coke gave in, “I will not
dispute with your Majesty.” By now, James had had enough of Coke; and Bacon
took the opportunity to ensure the downfall of his great rival. He drew up a lengthy document
entitled “Innovations into the Laws and Government” recounting Coke’s “offences”. Seventeen charges were listed. And invited the King to discharge
my Lord Coke from place of Chief Justice of your Bench. Bacon said “I also send a warrant
to the Lord Chancellor for making forth a writ for the new Chief Justice, leaving a
blank for the name to be supplied by your Majesty.” The King executed the form of discharge, which was sent to Coke in his chambers. The discharge stated: “For certain causes now moving us, we will
that you shall be no longer our Chief Justice to hold pleas before us, and we command you
that you no longer interfere in that office, and by virtue of this presence, we at once
remove and exonerate you from the same.” Coke read the letter and then bowed his head
and wept. This was in November 1616. Earlier, on 20 June 1616, James himself had sat in
the Star Chamber, something that no monarch had done since Henry VIII. James began by
atoning “Give thy judgments to the King, O Lord, and thy righteousness of the King’s son.
… Kings are properly called judges, and judgment properly belongs to them from God
for Kings sit in the throne of God, and thence all judgment is derived. It is atheism and
blasphemy to dispute what God can do so it is presumption and high contempt in a subject
to dispute what a King can do, or say that a King cannot do this or that. … I remember
Christ’s saying, ‘My sheep hear my voice,’ and so I assure myself, my people will most
willingly hear the voice of me, their own Shepherd and King.” Now on any view this is pretty loopy stuff.
And the Stuarts didn’t improve after James I. The Stuart family can be seen as God’s
way of making the point that the Divine Right of Kings is a very bad theory of government.
William Butler Yeats wrote that a man’s greatest glory lay in his friends. Perhaps Coke’s greatest
glory was that he had such enemies. If nothing else, the spectacle of the King
using the Court of Star Chamber as a forum for the solemn proclamation and enforcement
of his theory of the divine right of the King to concentrate on himself all the powers of
government, ensured that the Star Chamber would be abolished just as the political nation
would reject the theory of divine right. Time would show that, in the struggle for
judicial independence from the Crown, Coke had the better of the argument with Bacon
and the King. The constitutional settlement at the end of the 17th Century reformed the
position of the judiciary in relation to the Crown. While the judges continued to be appointed by the King, their work became independent of the crown in a real sense because they
no longer continued to serve at the King’s pleasure. So far as the system of justice is concerned,
this was one of the great successes of the Whig project. Until the reign of William III, the judges
were appointed “durante bene placito”, that is “during [the King’s] pleasure”. From the beginning of the reign of William III, the judges were appointed “quamdiu se bene gesserint”, that is, “for as long as they are of good behaviour”. And importantly, the judge of judicial misbehaviour
was not the King but the Parliament. And so Coke’s courage in his battle over the
power of the King to control his judges was ultimately vindicated. It may be said that
his courage was shored up by the alignment of his self-interest and the institutional
interest of the courts on which he sat. It might even be said, as Macaulay wrote, “Coke’s
opposition to the Court … was the effect, not of good principles, but of a bad temper.”
But making due allowance for all these things, Coke’s courage is undeniable and still very
impressive. As Macaulay said, he was a “pedant, bigot and brute but nevertheless an exception
to the maxim … that those who trample on the helpless are disposed to cringe to the
powerful.” Can I say something now about Coke the scholar.
In 1615, King James and his son, Charles, went to Trinity College, Cambridge, to watch the performance of a play written by George Ruggle. The play was a comedy, the “principal character
in which was a pompous, silly old Inns of Court lawyer named Ignoramus”. (This name was
borrowed from the old legal procedure whereby grand juries who were unable to find a case
worthy to be tried wrote on the indictment Ignoramus, that is, [we don’t know]. It was
from this play that the word “ignoramus” came into common English usage, meaning an ignorant
and foolish person.) Ignoramus was intended to parody a local lawyer
who had given grief to Cambridge University, but as soon as the character appeared on stage,
dressed ostentatiously in his robes, everyone in the audience identified him as Edward Coke.
He strutted about the stage spouting bad schoolboy Latin—”Quota est clocka nunc?”, he asked
when he wanted to know the time—much to laughter and applause of the King and the
aristocratic crowd who were all, of course, well-versed in Latin. Coke tried to have the play suppressed, but
acknowledged that “Never did anything so hit the King’s humour as this play did.” He was
humiliated. His cherished alma mater had held him up to public ridicule, and had done so
in front of the King. James liked the play so much that he saw it twice. Coke’s critics teased him for not being able
to take a joke (which of course, was completely true); and this teasing, which was unlikely
to have been harmless fun, added to his ill-humour. “The Lord Chiefe Justice,” wrote Chamberlain,
“both openly at the Kings Bench and divers other places hath galled and glaunced at schollers
with much bitterness.” While it is no doubt unfair that a public
man of Coke’s eminence should have been dismissed in fashionable court circles as a pedantic
and posturing fuddy-duddy, the Ignoramus episode makes a significant point about Coke as a
scholar, which is all the stronger because of its contemporaneity. The point is that his scholarship was so polemical
in its tone and partisan in its content that it was inevitable that he should become a
political target for those of his contemporaries who disagreed with him. It also became a target
for later scholars who thought that historians should aspire to a degree of objectivity. When Coke left the Bench he returned to Parliament.
Here, he made his greatest contribution to the English articulation of the relationship
between the individual and the State as the author of the Petition of Right. The Petition of Right set out in clear and
unambiguous terms what Coke regarded as the pre-existing rights of Englishmen to be free
from martial law, billeting of soldiers, non-Parliamentary taxation and imprisonment without cause. The
petition was initially resisted by the Crown, but the pressure of Parliament eventually
proved too great. It was Coke who was active in securing its passage through the Parliament. On 7 June 1628, King Charles I capitulated
and gave the petition his unqualified assent. The existence of some fundamental rights of
individuals was definitively established and the scope of the royal prerogative was substantially
reduced. In the course of his work as a parliamentary
spokesman for what would later become recognisable as the Whig position in English politics,
Coke became the sponsor of the adulatory view of Magna Carta, what Edward Jenks described
as “The Myth of Magna Carta”. Speaking of Coke’s time, Jenks said:
“It was an age in which historical discoveries were received with credulity, in which the
canons of historical criticism were yet unformulated. Doubtless, more than one of Coke’s contemporaries
John Selden, for example must have had a fairly shrewd idea that Coke was mingling his politics
with his historical research. But, for the most part, those competent to
criticise Coke’s research were of his way of thinking in politics, and did not feel
called upon to quarrel with their own supporter. Zeal for historical truth is apt to pale before
the fiercer flame of zeal for political victory. It is a tribute to Coke’s character and ability,
that he imposed his ingenious but unsound historical doctrines, not only on an uncritical age, but on succeeding ages which deem themselves critical.” In the course of Coke’s promotion of the Petition
of Right, and in the second book of his Institutes written after he left the Bench, he presented
Magna Carta to the political nation as a guarantee of individual liberty and Parliamentary government.
Coke’s work provided the foundational myth of the English State which inspired the English
Whigs. And it was this inspiration which also drove the political imagination of the American
colonists. It was Coke the visionary politician, and not Coke the judge, whose work was the
great dynamic force in the movement to constitutional monarchy in England over the succeeding centuries. In an address in March this year to the Friends
of the British Library, Lord Sumption made the point that, before Coke, English ideas
of limited government owed more to Aristotle and Aquinas than to Magna Carta. Until Coke
began to trumpet Magna Carta as an original expression of the special English genius for
constitutional government, Magna Carta had virtually no claim on the English imagination.
Lord Sumption makes the telling point that in Shakespeare’s play “King John”, there is
no mention at all of the famous incident at Runnymede in 1215. In the Institutes, which included Coke on
Littleton, he attempted an authoritative and comprehensive statement of the common law.
I am confident that none of you has ever read it you are none the worse for that. Indeed,
you are fortunate not to have had to grapple with Coke’s prose it is no accident that no
one has ever speculated that Coke (rather than Bacon) might have been the true author of the
works of Shakespeare. Dr McPherson in The Reception of English Law
Abroad explained that the enormous and immediate success of Blackstone’s Commentaries on the
Laws of England upon its publication in 1765 occurred because, in contrast to the “incoherent
mass” of Coke on Littleton, so described by the brilliant John Quincy Adams, Blackstone’s
Commentaries presented a comprehensible, clear and elegant statement of the common law. In Coke’s academic work, his overweening concern
for his own reputation led him again to be less than candid. In the third volume of his
Institutes, which was published after his death, he famously asserted that: “There is
no law to warrant tortures in this land.” In truth, although torture was not authorised
under the common law, it was authorised in England under the royal prerogative when treason
and sedition were alleged. Torture did occur pursuant to a warrant issued in the name of
the monarch. And Coke’s name appears on seven warrants authorising the torture of Catholics
and Puritans. One of Coke’s more important scholarly contributions
was the establishment of the Law Reports. He produced the first full set of the law
reports in England. It was not so much the quality of the reports themselves that was
important but it was the idea that it was essential then, as it is now, to the common law as a
system founded upon the judicial observance of precedent, that precedents should be collected
and made available to the profession and the judges for application to like cases. The importance of this aspect of Coke’s contribution
to the common law cannot be overstated. Bacon himself said that before Coke’s Reports
“the law had been like a ship without ballast”. To draw further upon Bacon’s nautical metaphor
it’s noteworthy that a partial set of Coke’s reports travelled to America on the Mayflower. Coke spent the later decades of his life at
his home at Stoke House working principally on his Reports and updating his commentaries
on Littleton. By this time, he and his wife had effectively separated.
By late 1634 he was dying, stubborn to the end he refused medical assistance. As he laid, dying Charles I issued a warrant
to search his home. The King’s officers took away the manuscripts of all four Parts of
the Institutes, the manuscript notes for two additional books of Reports. His chambers at the Temple were also searched.
As I said perhaps his greatest glory was that he had these people for enemies. Turning then, after all this to his judicial
legacy. One aspect of his judicial legacy warrants particular attention. It might fairly
be said that judicial activism, that apparently modern phenomenon which so excites some commentators who, curiously, also tend to be admirers of Sir Edward Coke, actually reached its apogee
in the early 17th Century when Coke made the claim for judicial power that was apt to exalt
the judiciary over the legislature as the principal voice of sovereign power. Most famously, in Dr Bonham’s Case Coke wrote: “In many cases, the common law will … controul
Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of
Parliament is against common right and reason, or repugnant, or impossible to be performed,
the common law will controul it, and adjudge such Act to be void”. It’s difficult not to see the Becket syndrome
at work here. But it must also be said that Coke was speaking in support of a view with
deep roots in natural law thinking, the idea that the exposition of the law was a matter
for learned men, men, steeped in tradition, and for them only. That mindset was very much at odds with the
radical Protestant view that individuals can find their way to the truth for themselves
without the mediation of a priestly caste. And when Coke spoke of the “common law” as
an abstraction, the practical political reality, well understood by his contemporaries, as
his exchanges with the King show, was that he was promoting the supremacy of the judges
over the King in Parliament. At this historic crossroads, Coke’s great
rival, Francis Bacon, took the road that led to Parliamentary supremacy. In the course
of argument in Chudleigh’s Case in which, fittingly, Bacon and Coke were opposed as
counsel, Bacon argued that the judges’ authority over the laws of England was merely “to expound
them faithfully and apply them properly”. The English civil wars of the 17th Century
established, in the most emphatic way, that Francis Bacon had the better of this argument.
The claim of the Parliament to be the sole organ of government representative of the
people to say what the law should be was established in England following the constitutional settlement
at the end of the 17th Century. At that time, any claim of the judiciary for the larger
share of sovereign lawmaking power remained dormant, until the founding of the United
States. Shortly after that founding the great judgment of Marbury v Madison, the great judgment
of Chief Justice Marshall in that case established that the Supreme Court of the United States
could invalidate Acts of Congress held by the judges to be inconsistent with the Constitution. Coke’s observations in Dr Bonham’s Case might
be thought to have foreshadowed the strong form of judicial review established in Marbury
v Madison but to the disappointment of those who would claim Coke as the originator of
judicial review, it is noteworthy that Dr Bonham’s Case was not even mentioned in the
celebrated judgment of Chief Justice Marshall. Marshall’s decision in Marbury v Madison was
founded squarely on the eminently practical ground that interpreting written documents
is simply what judges do and what they had always done within the common law tradition.
Constitutional adjudication he saw as an exercise in interpreting the effect of the Constitution
as a written document and that exercise was of a piece with work which characterises the
work of judges in interpreting deeds and wills and written contracts. For Marshall, there
was simply no occasion to seek more direct authority for the great principle of judicial
review. His insight, that “it is emphatically the
province and duty of the judicial department to say what the law is” reflected the practical
experience of practising lawyers that declaring what the law is, is simply a characteristic
function of judges in the common law tradition. This practical and institutional approach
formed by the separation of powers effected by the US Constitution is, of course, a very
different thing from the doctrinaire and it must be said highly authoritarian approach
of Coke in Dr Bonham’s Case. In conclusion, as to Coke’s claim to be regarded
as a hero judge, we might say, viewing his work through the prism of the separation of
powers, that Coke was too committed to politics and his political vision to meet modern notions
of a truly great judge. That wouldn’t be very fair: that Coke played such a prominent
role in politics even while on the Bench, is hardly surprising given that, in his time,
no one saw government through the prism of the separation of powers. But, putting that aside, the story of British
constitutional and legal development, while adorned with famous names like those of Coke,
is not a story of the work of hero judges but rather, as with the evolution of the adversarial
system, of a practical process of iteration, from generation to generation of lawyers of
the bench and the profession, whereby the nation’s legal institutions moved, sometimes
slowly and often tentatively and uncertainly, to meet the nation’s needs in an ongoing process
of self-definition. If one were to attempt to sum up Coke’s career
in a sentence, one might say that Coke was a brave but partial judge, a prolific but
partisan and unreliable scholar, and a truly appalling barrister. But he was also a very
great politician, he was the maker of the foundational myth that inspired the Whig project
in England and the United States. But it’s perhaps best to leave the last
word about Coke to the long-suffering Lady Hatton, his wife of 36 years, who said upon his death, the age of 82: “We shall never see his like again, praise be to God.” Thank you for
your attention. Justice Keane, on behalf of all of us, can
I thank you so much for tonight’s presentation, we couldn’t have started this year’s lecture
series with a more magnificent and comprehensive summary of the Tudors times in a way that brought
it to life in a way that I’ve never heard before. Ladies and gentlemen this is the first
our Selden Society lectures this year the next one is being provided by Associate Professor
Warren Swain, University of Queensland about Lord Mansfield on the 11 June, so I do hope
you all will be able to join us then and until then we have freshements outside. Thank you
all.

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