The Lion and the Throne: The Law Is the Safest Shield
Mr. Justice Holmes, John Adams, and Sir Edward Coke — to the study of these three giants in lawCATHERINE DRINKER BOWEN has devoted no less than fifteen years. The sequence is important, for each of the three built upon the edifice of his predecessor; and for this reason perhaps Sir Edward Coke, who suppressed the conspiracies against Queen Elizabeth and fought for the Commons against James I and Charles I—perhaps he is the mightiest of the trio in that he laid the foundations of our Bill of Rights. The following excerpt, which shows Sir Edward — now Chief Justice Coke—in his historic role of champion of the common law against King James’s abuse of the royal prerogative, is the third drawn from Mrs. Bowen’s new book, The Lion and the Throne. These excerpts are highlights in a volume which in its entirety runs to 200,000 words.
by CATHERINE DRINKER BOWEN
MICHAELMAS term opened in October; the great doors of Westminster Hall let in their heterogeneous stream. Chief Justice Coke sat behind the bar of Common Pleas, receiving cases in their turn. After twelve years as Attorney General, Coke, in the summer of 1606, had been raised by King James to the bench. No longer plain black-gowned Sir Edward, my Lord Coke sat now in scarlet silk, on his head the coveted white coif of judgeship.
Only three steps from courtroom floor to bench, yet Coke became, almost, overnight, another man. “The most offensive of Attorney Generals,” wrote Francis Bacon’s biographer, “transformed into the most admired and venerated of Judges.” When advocates turn judge, the world expects them to be worthy the occasion; the Bench would seem to lift the spirit as well as the body of a lawyer. But with Coke the breach is not merely noticeable, it is startling, and from a distance of centuries, hard at first to credit. A sharp road cuts between the countries of this life. Attorney General Coke, sharp driving tool of Crown authority, put on the robes of judgeship and became to all appearances the champion of another cause. “There is a maxim,” he told the Lower House: “The common law hath admeasured the King’s prerogative. It is not I, Edward Coke, that speaks it but the records that speak it.”
“The King,” he advised James, “cannot take any cause out of any of his courts and give judgment upon it himself.”
“No person,” he wrote in the Second Institute, “ought in any ecclesiastical court to be examined upon the cogitation of his heart or what he thinketh.”
Such pronouncements, had they come from England’s Attorney General, would have been near to treason; as Elizabeth’s servant Coke could hardly have shaped the words; his mind was turned another way. But spoken by Chief Justice Coke the words were to come as natural evolvement, behind them the long affirmation of Coke’s years as scholar, judge, and Commons man. Times had changed, the scene was ready. In the Attorney Generalship, Coke had held an office which, above any in government, existed (as Bacon said) to guard the prerogative; the Queen’s Attorney was the Queen’s watchdog. On the drafty bench of Common Pleas, Coke sat now as judge, pledged by his oath to “well and truly serve the King and his people.”
Before three months were out, Chief Justice Coke attacked the very prerogative court which as Elizabeth’s Attorney General he had upheld. Coke’s change of direction was logical: Stuart England was not Tudor England; a man could with honesty uphold Elizabeth’s prerogative and cry down James’s. Not only had Elizabeth her country’s welfare at heart, with skill and strength to sustain it, but the situation around her had been different. Tudor England suffered under continual threat from the Continental Catholic powers. “ War-and-no-war,” Ralegh had called it in 1593, begging for fighting ships against, the Spaniard.
James came to the throne, and for a brief year or two the issue and the antagonists seemed to remain the same; in the Gunpowder trials it was Rome, Spain, a foreign enemy that Coke, as Attorney General, continued to light. Yet by the year 1607, James had revealed himself to those wtth eyes to see. This good-natured prince, fond of theological disputation and the deer hunt, desired to rule England as he had ruled Scotland, above the state and above the law. Parliaments were a trial laid on recurrently, like God’s plagues on Pharaoh. There were kings, James wrote blandly, “before any Parliaments were holden, or laws made” — a statement to Coke’s mind as un-English as the tasseled crown of the Spanish ambassador’s hat.
Squarely behind James stood Lord Chancellor Ellesmere, served by Masters in Chancery, Clerks in Chancery, and a battery of civilians learned in Roman law. At Ellesmere’s side Archbishop Bancroft exercised the wide legal powers of t he Anglican Established Church. “It is clear by the Word of God in the Scripture,” said Bancroft, “that judges are but delegates under the King.”
“Let judges remember,” said Francis Bacon, “that Solomon’s throne was supported by lions on both sides; let them be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty.”
Edward Coke did not agree. “The King is under God and the law!” he said.
It was high time for an authoritative definition of the word “ king.” Certain new-risen philosophers, said Lord Chancellor Ellesmere scornfully, looked upon the common law as above the monarch, even daring to declare that “kings have no more power than the people from whom they take their temporal jurisdiction!” Such persons called upon the law of nature, asking if “kings or people did first make laws.”
Near treason! said Ellesmere warmly. “The monarch is the law. Rex est lex loquens, the king is the law speaking.” King James, Ellesmere added during the hearing of Calvin’s case, might well take the law in his own hands and determine the case himself. Such a statement, made officially in an English courtroom — and by the Lord Chancellor himself—was a slap in the face of Edward Coke and all who held his ideas on government. Against it the Chief Justice of Common Pleas had but one official recourse: to withdraw suits from prerogative courts whenever and however he could, narrow down the Roman law jurisdiction and starve it to bones. By siege or by assault, Coke’s weapons were slight. Mere legal quibbles, some called them — as prohibitions, for instance. Yet giants still were vulnerable if pebbles could be found.
DURING the year following, prohibitions flowed out from Common Pleas under Coke’s seal. Archbishop Bancroft, was alarmed. He appealed to James, advised him of the danger. Let his Majesty summon Coke and his brethren, tell them they overstepped.
On a November Sunday, common law judges and ecclesiastics were summoned to Whitehall. James sat in his chair, the disputants remained standing before him. Sir Julius Caesar, a Doctor of Roman Law, took notes. The King opened the meeting by remarking shortly that he had come neither to hear nor to make orations. Coke, as spokesman for the judges, this time was well prepared. Ecclesiastical courts, he said, had undoubted authority to proceed, so long as no temporal matters were involved. But let a temporal issue enter the case, and it must be transferred to the common law courts — even in causes of clearly ecclesiastical nature.
The King broke in. Common law judges, he said, were like papists who quoted Scripture and then put upon it their own interpretation, to be received unquestioned. At this point someone, probably Bancroft, brought up the touchy matter of James’s own powers. The judges, he Said, were but delegates of the King; his Majesty had the right to take what causes he pleased from the judges and determine them himself. To this, Coke made instant rejoinder. The sovereign might sit in Star Chamber, “and this appears in our books.” But only to consult with the judges, not in jndicia. (In Star Chamber was a chair of state, emblazoned with the royal arms. For thirty years Coke had seen it empty; Elizabeth never claimed her right to sit. There were powers a wise sovereign did not put to public test.) “ And it appears by Act of Parliament,” Coke went on, addressing the King, “that neither by the Great Seal nor by the Little Seal, justice shall be delayed; ergo, the King cannot take any cause out of any courts and give judgment upon it himself. . . .”
James broke in, told Coke he “spoke foolishly.” Himself, the King, as supreme head of justice, would defend to the death his prerogative of calling judges before him to decide disputes of jurisdiction. Moreover, the King 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 the laws shipmen’s hose!”
At this point James shook his fist and Sir Julius Caesar, after one brief sentence, stopped taking notes. Coke’s Report jacks up the story. “Then the King said that he thought 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 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 are not to be decided by natural Reason but by the artificial Reason and Judgment of Law, which requires long Study and Experience before that a man can attain to the cognizance of it; and that the Law was the golden Metwand and Measure to try Causes of the Subjects, 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 Laws.”
Sir Rafe Boswell described the scene in a letter to Dr. Milborne:-
“The Lord Coke humbly prayed the king to have respect to the Common Lawes of his land &c. He prayed his Majesty to consider that the Ecclesiastical Jurisdiction was forren. After which his Majesty fell into that high indignation as the like was never knowne in him, looking and speaking fiercely with bended fist, offering to strike him, &c. Which the Lo. Cooke perceiving fell flatt on all fower; humbly beseeching his Majestie to take compassion on him and to pardon him if he thought zeale had gone beyond his dutie and allegiance. His Majestie not herewith contented, continued his indignation. Whereuppon the Lo. Treasurer [Robert Cecil] the Lo. Cooke’s unckle by marriage, kneeled down before his Majestie and prayed him to be favourable. To whom his Majestie replied saying, What hast thou to doe to intreate for him?”
It was a tremendous scene: a king’s fist raised against a judge, the small pale hunchback throwing himself between.
Very likely, Coke did fall on his face. It was that or a cell in the Tower. The Chief Justice of Common Pleas kneeled, and rose, and went out into November city streets. King James, having disposed of these vexing questions, as it seemed in one brief forenoon, turned his face again to Royston, where the red deer ran.
Next morning a new prohibition, under Coke’s seal, went out to High Commission from the Court of Common Pleas.
But it was to his own court, his own northwest corner of Westminster Hall, that Coke now carried the fight. That vast chamber, where among ceiling cobwebs the wooden angels flew, face down in faintly seen benignity — that vast chamber which Attorney General Coke had witnessed cleared and garnished for an Essex trial, a Ralegh trial - was now a working-place, busy, humdrum, matutinal. There were no screens round Common Pleas; with three law courts in session (counting Chancery), the Hall hummed like a hive. Throngs passed up and down the middle aisle between the courts: booksellers, stationers, scriveners, vendors of bread and hot meats. In winter Coke sat wrapped in miniver, the tabs of his velvet cap pulled down over the coif to warm his ears, his full robe tucked around his feet against the drafty floor. A mustiness lay upon this ancient place; old Ellesmere, mounting to his chair, clutched sprigs of wormwood to ward off evil vapors.
All during the winter of 1609—1610, while Parliament was sitting, Coke sent out his prohibitions, battling Archbishop Bancroft “in contempt,”wrote Bancroft angrily, “of the command of the King. Repeatedly, Lord Chancellor Ellesmere called the judges to conference, sometimes in the King’s presence, sometimes alone. They failed to shake Sir Edward; he never changed position. Bonham’s case came to court; Coke seized occasion to declare the common law above Parliament as well as above the King: “When an Act of Parliament is against common right and reason, the common law will control it and adjudge such Act to be void.”
It was the most controversial judicial dictum of Coke’s life, and one which echoed down the centuries, interpreted according to men’s special needs.
. . . 1765, and a Stamp Act passed in Parliament. New England protesting. “An Act against natural equity is void!” shouted James Otis of Massachusetts, and from Boston to Virginia trumpets blew. Massachusetts Assembly declared the Stamp Act invalid, “against Magna Charta and the natural righls of Englishmen, and therefore, according to the Lord Coke, null and void.” Patrick Henry also cited Coke as authority for nullification. But how, a doubtful judge inquired of John Adams, can such nullity be proven? By the jus gladii divinum — the divine right of the sword? Never mind jus gladii, replied John Adams at once. “Tell the jury the nullity of acts of Parliament. ... I am determined to die of that opinion.”
Coke would have been astonished at the uses to which Bonham’s case was put. Lex est tutissima cassis; the law is the safest shield. Coke’s motto sounded in colonial law courts beside the name of Bonham, dead two cent uries and more. . . . 1787 : a federal convention to construct a United States Constitution, to create a Supreme Court of judges that would pass on legislation and interpret it.
MY LORD JUSTICE COKE, who had served the Crown so pliantly as Attorney General, had become, after seven years in Common Pleas, a thorn in King James’s side. In the spring of 1613, Sir Francis Bacon devised a plan to remove Coke, without trouble or scandal, by the simple expedient of kicking him upstairs. If Coke were made Chief Justice of King’s Bench, and one Henry Hobart put in Coke’s place in Common Pleas, then Bacon could be named Attorney General — and his Majesty, wrote Sir Francis, “would speedily find a marvelous change in his business.”
Coke heard of the plan and howled his protest, urged friends to help, sent his own letter 1o the king. Common Pleas was where he belonged, where he was fittest to be. In Common Pleas he hoped to end his days.
It was of no use. Sir Henry Hobart stepped into Common Pleas, Bacon was sworn Attorney General. The new Chief Justice missed none of the implications of his new position. Meeting Bacon in the courts, Coke challenged him angrily. “Mr. Attorney, this is all your doing. It is you that have made this great stir!" Bacon’s reply must instantly have gone the rounds, rejoicing Coke’s enemies who had seen him wax rich in the law. “Ah, my lord!" said Bacon, “your Lordship all this while hath grown in breadth. You must needs now grow in height, or else you would be a monster!”
In such a retort, the smile, the bow ironic, are implicit. Bacon was master at the art. The cat, Sir Francis once had written, knows whose lips she licks. . . .
Lord Coke was Chief Justice of England now, and at first the change seemed propitious. Coke published his tenth Report that winter. The preface opened with a tranquil, happy note. Coke’s old society of the Inner Temple placed the book proudly on its shelves, the title pricked out in gold. Lord Coke walked through the City in state now, followed by a dozen men in livery. When he attended church at St. Dunstan’s, a clerk with a white wand preceded him. In June of 1614, Cambridge University by unanimous vote elected Coke High Steward, honorary office next below Chancellor of the University. Coke was immensely pleased.
East of King’s Bench, across the width of Westminster Hall, Lord Chancellor Ellesmere presided in his marble chair. This was the King’s ancient court of equity, Star Chamber’s sister, an extension of Privy Council authority. A court of relief, it was called. The common law could punish but it could not prevent . If John Doe’s neighbor began to build a spite wall that cut off view and sunlight, King’s Bench could not stop him but Chancery might. The common law was rigid. Suitors appealing from a decision at common law could obtain stay of judgment while Chancery reviewed the case. Ellesmere, especially vigorous in thus correcting the Common Bench, in twenty years of office had met with little or no resistance from the judges.
Toward the end of 1616, however, rumblings were heard from the southwest corner of Westminster Hall. “No appeal from King’s Bench,”said Coke, “to any court except the High Court of Parliament.”It was a reckless statement, born of desperation; among Coke’s attacks against prerogative courts, the most daring by far. With angry stubbornness, Coke flung himself against the King’s great court of Chancery — always with one principle at issue: Chancery’s right to stop judgment in the common law courts.
Sir Francis Bacon, meanwhile, had been sworn a member of the King’s Privy Council, in his fiftysixth year attaining a distinction for which he had yearned and plotted over three decades. From this new vantage point he at once renewed attack on Coke’s position, using the still pending Chancery fight and an even more important jurisdictional battle, known to contemporaries as the Case of Commendams. The suit challenged certain traditional royal rights in the granting of a church benefice. Serjeant Chibborno argued boldly for the two plaintiffs. His argument was reported to the palace, and James, through Bacon, commanded Coke to halt proceedings until after consultation with his royal self. Let Coke so inform the rest of the common law judges, “whereof,”finished Bacon’s letter peremptorily, “your Lordship may not fail.” In open defiance, the Case of Commendams was heard next day in Exchequer Court, following which twelve Judges met at Serjeants’ Inn and signed a letter, drafted by Coke. Reminding his Majesty of the judicial oath of office, Coke declared flatly that justice could not be delayed in the courts “for any letters of the King.”Bacon’s message therefore had been “contrary to law,” and with one consent the Judges had proceeded to the case at hand.
Once more the King had interfered, but this time the Judges stood firm. The bench not only “certified" that they were going ahead with trial despite royal orders, but when the Judges wrote their letter, trial had already been held. And instead of one judicial protest, James received twelve. His reply, from Theobalds, was peremptory and not a little sarcastic. The opening salutation addressed Coke as Privy Councillor, then the other Judges: —
“Trusty and well-beloved councillor ,and trusty and well-beloved ,we greet you well.. . .
“Ye might very well have spared your labour in informing us of the nature of your oath. For although we never studied the common law of England, yet we are not ignorant of any points which belong to a King to know. . . . But we cannot be contented to suffer the prerogative royal of our crown to be wounded through the sides of a private person: We have no care at all which of the parties shall win his process in this case, so that right prevail. . . . We are therefore to admonish you, that since the prerogative of our crown hath been more boldly dealt with in Westminster-Hall during the time of our reign than ever it was before in the reigns of divers princes immediately preceding us. that we will no longer endure that popular and unlawful liberty. . . .”
As for a possible delay of justice, James continued ironically, he would be glad if no pleas at Westminster were of older date than this one. “Our pleasure therefore is, who are the head and fountain of justice under God in our dominions, and we out of our absolute power and authority royal do command you, that you forbear to meddle any further in this plea till our coming to town, and that out of our own mouth you may hear our pleasure in this business; which we do out of the care we have that our prerogative may not receive an unwitting and indirect blow.”
ON THE sixth of June, the Judges were summoned to Whitehall. Around the long table sat Lord Chancellor Ellesmere and seventeen Lords of Privy Council. When all were settled in their places, the King entered, took his seat at the table’s head. At his Majesty’s request, the Bishop read aloud Serjeant Chibborne’s bold arguments of the April hearing: next, Bacon s letter to Coke, with Coke’s brief reply: then the letter signed by twelve Judges and James’s ironic answer.
These preliminaries over, James broke out with angry queries: Why had not the Judges checked and bridled “impudent lawyers” who encroached not only on the prerogative but “on all other courts of justice"? The Judges letter was itself a new thing, very undecent and unlit for subjects to disobey the King’s commandment, but most of all to proceed in the meantime and to return to him a bare certificate.” With a violent gesture. James tore the letter across. Twelve Judges fell on their knees and craved humble pardon. Their letter, they confessed, had been wrong “in form.”
But Coke, still on his knees, raised his face to the King. If the letter’s form had been regrettable, he said — for the matter of it he must enter into a defense. “The stay required by your Majesty was a delay of justice and therefore contrary to law and the Judges’ oath.”
“Mere sophistry!” James retorted. “Unto which,” wrote the reporter, “the Lord Chief Justice in effect made no answer but only insisted upon the former opinion.”
James appealed to Ellesmere, asked his opinion about the Judges’ oath and if the stay required had been contrary to law.
Ellesmere delivered his opinion that the delay of trial which James had requested in the Commendams case had not contravened the Judges’ oath. “And the Lord Chancellor,” continued the reporter, “required that the oath itself might be read; which was done by the King’s Solicitor and all the words thereof weighed and considered. Thereupon his Majesty and the Lords thought good to ask the Judges severally their opinion; the question being put in this manner: Whether, if at any time, in a case depending before the Judges, which his Majesty conceived to concern him either in power or profit, and thereupon required to consult with them, and that they should stay proceedings in the meantime, they ought not to stay accordingly? . . . They all (the Lord Chief Justice only except) yielded that they would, and acknowledged it to be their duty to do so; only the Lord Chief Justice of the King’s Bench said for answer, That when the ease should be, he would do that should be fit for a Judge to do.“
It was a statement never to be forgotten, in simple dignity nullifying all that had gone beforeand to the monarch, one last convincing proof that Coke must be humbled. On the final day of term before summer circuit - June 20, 1616-James went to Star Chamber to sit in the emblazoned chair that had been so long (and wisely) left vacant by his forebears. The room was crowded, expectant, and where the common lawyers clustered in groupsbarristers, Puritans, Parliament men — the air was charged with hostility. The monarch wore his crown and kingly robes under a cloak of purple velvel, crimson lined: his sword hilt gleamed with jewels. The audience kneeled, then rose at a signal as the sovereign prepared to speak.
“Give thy judgments,” he began, “to the King, O God, and thy righteousness to the King’s son. . . . Kings are properly 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 ow n shepherd and King.”
No word that fell was new; James had said it before and often. Yet place and occasion lent it, today, an awful finality. Thirteen years of English residence had not, it was plain, changed this monarch one iota. An audience of lawyers knew it with dark foreboding. Only the times had changed. James remained the same Scottish absolutist who had crossed the border in 1603 and hanged a cut purse without trial. “The absolute prerogative of the Crown,” the royal voice continued, “is no subject for the tongue of a lawyer, nor is lawful to be disputed. In your pleas, presume not to meddle with things against the King’s prerogative or honour. Some gentlemen of late have been too bold this ways; if the Judges suffer it, I must punish both them and you.”
Bacon found himself triumphant. “I do take comfort,” he wrote to James, “that I was the first that advised you to come in person into Star Chamber.” The next course was to summon Coke alone, without his brethren, and let him be charged personally with offenses against the King. On the twenty-sixth of June this was done. There was a series of charges: —
Coke had given “too much heart and encouragement” to the cause of the premunires. He had shown indecent behavior before his Majesty, the Lords of Privy Council and Judges; taking exception to the King’s Attorney [Bacon] in his Majesty’s presence. Further, a question being put to “the rest of the Judges, If his Majesty should send hereafter a like case — the rest of the Judges submitting themselves, the Lord Coke only dissented from all the rest.”
Invited to defend himself, Coke declared that if he had erred he could only say Erravimus cum patribus, We erred with the fathers; he was not the first to charge that Chancery had overreached, “to the subversion of the common law.” In the matter of commendams, he had been wrong, Coke admitted, to check Mr. Attorney General in his Majesty’s presence; but his answer to the sovereign, “When the time shall come, I shall do that which should become a Judge,” had intended no disrespect.
On June thirtieth, Coke was summoned again to Whitehall. The King, he heard, was not satisfied with his answers to Council last week. And though, taking into account his former services, his Majesty was not disposed to deal heavily, it was ordered 1) that the Lord Coke be suspended from his place in Privy Council; 2) that he forbear to ride his summer circuit as Justice of Assize. And 3) “that during the vacation, while he hath time to live privately, and dispose himself at home, he take into consideration and review his book of reports wherein, as his Majesty is informed, be many extravagant and exorbitant opinions set flown and published for positive and good law. If, in rev ievving and reading thereof, he find anything fit to be altered and amended, the correction is left to his discretion. Amongst other things the King is not well pleased with the title of the book wherein he entitled himself Lord (’kief Justice of England, whereas he could challenge no more than Lord Chief Justice of the Kitaj’s Bench. And having corrected what he find meet in these reports, his Majesty’s pleasure is, that he should bring the same privately before himself, that he might consider thereof, as in his princely judgment should be found expedient.”
There was nothing Coke could say. These were not charges to be refuted but royal commands. “ Chief Justice of England ”? In Coke’s last volume of Reports, the words had followed his name as author — a title in common usage since the &; ‘onquest. Coke bowed. “I submit myself,”he said, “to his Majesty’s pleasure.” He turned to go, but had not reached the door when Lord Treasurer Suffolk called him back. “His Majesty,” said Suffolk abruptly, “hath been informed that the Lord Coke has suffered his coachman to ride bareheaded before him. This His Majesty desires may be foreborne in future.”
The significance of bareheadedness in coachmen has been obscured by the passage of centuries; perhaps only royalty was entitled to servants with heads uncovered in the street. Whatever its meaning, the rebuke was extraordinary. To Coke it must have seemed sheer invention, Suffolk’s last cut of the whip to show an arrogant barrister his place. “ If my coachman,”Coke replied, “hath rode before me bareheaded, he did it at his own ease and not by my order. This I beg your Lordships to take notice of and state to his Majesty from me with all humility.”
WHEN summer was over, and the long vacation, Coke returned to London, ready, he said, with his amended Reports. On the second of October, he was summoned before Ellesmere, Bacon, Solicitor General Yelverton, and King’s Serjeant Monteagle. There were, Coke began, eleven books, covering about five hundred cases. Among so many, faults were to be expected. Even Plowtlen’s Reports, “which he reverenced much,”had been found to contain four errors. This brief preface concluded, Coke handed to the Lord Chancellor a single sheet on which were recorded five small, wholly trivial mistakes of fact or of Latin translation.
On November thirteenth, Bacon dispatched to James the note that sealed Coke’s fate: —
“May it please your excellent Majesty,
“I send your Majesty a form of discharge for my Lord Coke from his place of Chief Justice of your Bench.
“I send also a warrant to the Lord Chancellor for making forth a writ for a new Chief Justice, leaving a blank for the name to be supplied by your Majesty.”
And on the day following, Chamberlain in one superb sentence (which he said was common talk) summed up the whole of Coke’s troubled fate: “Four Ps have overthrown and put him down, that is PRIDE, PROHIBITIONS, PREMINIRE, AND PREROGATIVE.” Sir George Coppin brought the King’s supersedeas to Coke in his chambers: “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.”
Taking the scroll in his hand, Coke read it, then bowed his head and wept.
Grieved, humiliated, Coke vanished into the countryside. Where service to the state was concerned, the best of life — though he could not know it now in his distress — still lay ahead. Coke was sixty-five, gray and lean, with a rugged, enduring look. For the first time in his life he found himself idle by enforcement. As days passed, he responded with none of the resignation held proper to his years but with a restless anger, brooding, comfortless, ready to burst forth when opportunity presented. In London his name remained current; people could not believe the Lord Coke was gone from public life. Now and again he appeared at court, among the King’s entourage. Word went round that he had been restored to partial favor and that his long-time enemy. Sir Francis Bacon, was disturbed thereby.
In November of 1621, King James was persuaded to call a Parliament — the first in seven years. Coke was returned from a Cornwall borough, as royal nominee. Perhaps the King thought that Sir Edward, well chastened, would be a strength to the Crown’s faction. Yet few Parliaments of history have turned out so differently from plan. Coke in the Commons, the Earl of Southampton in the Lords, led the opposition. This Parliament, due to end disastrously, began in cheerfulness and mutual hope. The winter was very cold, the Thames frozen solid above the Bridge. Ice, thrown up by wind and tide, lay “like rockes and mountaines, with strange and hideous aspect.
James, carried from Whitehall in a chair (his weak legs had grown weaker with age), addressed both Houses in fatherly fashion, referring to past years, when there had been perhaps “some vanity in him, knowing not the state of this land. If the Commons would vote liberal supply, their money, said James, would not be ill spent, nor “fall into a bottomless purse.”The pockets of burgesses loosened as they heard. What would not the Commons of England do for a King who stood before them in open manly acknowledgment of fault? Within a few weeks, Parliament had voted two subsidies, making clear, however, how the money should be expended, and that no precedent should be taken of supply granted so early, before any laws had been passed or public grievances expressed. James, delighted with the money, told Parliament of his happiness to find himself, after eighteen years enthronement, “enthronized now in his peoples hearts.”
AND with that the love feast ended. Parliament sat four months and not a law was enacted. The Commons were vocal, busier than ever in their experience. Monopolies, patents, corruption in trade and in the courts of justice — these questions put a stop to ordinary business. “ The monopolizer,” Coke told the House, “engrosseth to himself what should be free for all men. I he depopulator [encloser of land] turns all out of doors and keeps none but a shepherd and his dog.”This was the High Court of Parliament, with power to judge and punish. “He that questions whether this House is a Court of Record,” said Coke, “I would his tongue might cleave to the roof of his mouth.”Reviving the old impeachment process — unused for three hundred and fifty years — Parliament brought to the bar for trial offenders from high places and low. It was an extraordinary, abrupt sweeping out, accomplished in perfect accommodation with the Lords - Commons as fact-finders, Lords as judges. “The House of Commons,”said a member, “is like, the grand jury for the whole commonwealth.”
Coke, as chairman of the great Committee for Grievances, at once assumed a leading part. He had been a judge; people still referred to him as the Lord Coke. He found himself in a position of extraordinary prestige. Pater patriae, father of his country, Parliament called him; bellwether of the flock.
The Crown knew well that this was dangerous hunting; the spoor lay close to home. This was the Parliament that impeached Lord Chancellor Bacon and the King’s Attorney General, Sir Henry Yelverton. Coke rose often to speak, not so much in defiance of King James as in aid of the Commons, to clear up uncertainty and out of his experience to remind the House of its full powers — its three great privileges—freedom of speech, freedom from arrest, and access to the sovereign “when the good of the Commonwealth shall require.”
In the law courts, Sir Edward had been accused of harshness at other men’s expense. Now that he shared the risk he spoke with equal bluntness to the Commons, seeming not to count the cost. The duty of the House was “to preserve the innocent and punish the nocent. I was charged with bribery, but did I hang down my head ? I was accused, but was I daunted? No! I hate bribery.” Coke addressed the House in parables after his custom, cracked jokes, and told stories, as perfectly at home as if he had never stretched his long legs under the King’s Council table. “Commonly when you follow two hares you lose both,”he told his colleagues jovially. “I would never take breviate of one side. I’ll keep my ears open for both parties. I love to come even.” Toward monopolies, Coke held to his old standpoint of 1604: “Best for a kingdom to have liberty of trade if it were well governed.”
The Commons were breaking ground; uncertainty of procedure caused them to flounder, grow unruly. This again, Coke saw as danger; it was in the King’s power to dissolve the session at any time he saw fit. And if in Coke’s mind the King had no right to imprison members while Parliament was sitting, in James’s mind the sovereign most certainly possessed this power and was prepared to use it. “ Let us keep order in our proceedings,”Coke urged his colleagues. “For Job, speaking of hell, sayeth, Ubi nullus ordo [where no order is].”
A House that laughs is a House softened to reason. During the trial of one monopolist, when passions ran high, a female witness appeared at the door. Should she be admitted to the Bar of Commons? There was no precedent, Coke said. Had the House read of Saint Bernard? Entering a church in Germany and being on his knees at prayer, he heard our Lady’s image before him cry out in a small voice, “ Welcome, Bernard, welcome! ‘Peace, Madam!’ quoth Bernard. ‘It is not lawful for a woman to speak in the congregation."'
Members listened, were diverted, refreshed — and followed after. The Lords made evident they liked it too, though they did not show the Commons’ respect for Coke’s authority of scholarship and experience. There was how ever something reassuring, disarming, about Coke’s easy reference to the past, He brought in Lord Burghley’s name, Popham’s, Queen Elizabeth’s — and more than once, Robert Cecil’s, naming him affectionately as the little great Lord Treasurer. “When I was Speaker,” he said. Or. “because I had served as the Queen’s Attorney and so was conversant in every court. ... It was resolved by Popham and all the judges, sole importation is a monopoly, and I, being Attorney General, brought warrantee against such and overthrew them all.” By turns jovial, indignant, triumphant, Coke worked and schemed with his colleagues, moving easily between the two Houses with messages, plans, reports. And always, he talked. “Sir Edward Coke,” said a newsletter in midsession, “hath won his spurres for ever, and they all confesse that they could not have missed him [done without him] for that he hath so ledd and directed them all this parlement, that they cannot be satisfied with applauding him both before and behinde his backe, and indeed he is a happie man if he can leave [stop] here, for he hath proceeded hitherto with a great deal of sinceritie, temper and discretion more than usuall in him.”
But Coke, characteristically, could not stop here. With success his confidence returned threefold. The rough assurance of manner on which the Commons leaned commenced to ruffle their Lordships. For a man lately in disgrace, Sir Edward made himself overmuch at home with his betters. With no hesitation at all, Sir Edward reminded the Lords of “ King Alfred’s law: namely there should be two Parliaments held each year” for avoiding injuries to the realm. Edward I had ordained a Parliament “for every two years at the least,” Edward III, “one Parliament every year for redressing mischiefs and grievances.”
SUCH a statement would have startled even the Commons; to the Lords it must have been stupefying. The palace faction hated all Parliaments and had done their best to stop this one. There was no questioning Sir Edward’s loyalty to the Crown. But loyalty to Janies was not loyalty to monopolists, or to the courtiers and royal favorites who stood behind the royal grants. There came a day when Coke skirted near to open defiance. “It’s necessary,” he said, “that some law be made for time to come that no monopoly be granted, and they that procure any such may incur some great punishment. This will kill the serpent in the egg.” Coke’s words went out and were repeated.
On the twenty-eighth of May, James sent sudden word that Parliament must adjourn. The Commons were dismayed; their business was but half done. “We must not return home with trilles,” Coke told the House. Adjournment was not prorogation. ” Yet if we go to the country and tell them the difference they will not understand us.” The King consented to an additional ten days, and ufter adjournment, by proclamation swept away eighteen monopolies and listed another seventeen for examination by the courts. It was victory in fact but not in essence; Parliament had desired to cancel these grants through legislation, not by “the King’s grace.” The Earl of Southampton was arrested as he left the Council table and committed to close custody at Westminster, being “more curious in the powers and liberties of the Parliament than became any Privy Councillor.” He had led the country party in the Upper House as Coke led in the Lower. Under examination it came out that meetings had been held in Southampton’s Holborn house; the Earl was asked if he “had not practiced with some of the Lower House to cross the King.” His worst offense was hatred of the King’s favorite, the Earl of Buckingham; Southampton had been heard to sny that he “liked not to come to the Council Board because there were so many hoys and base fellows.”
Sir Edwin Sandys and John Selden were arrested and committed to the Sheriff’s custody. (Selden, though not a Parliament man, had been active, giving much offense to the Crown.) Rumor said that Coke had been sent for. “Petitions,” he had informed the Commons, “are either of grace or of right. Our grievances are of right, but the true physic is by bill in Parliament ” — a stand which the sovereign could not countenance. In no sense fearful, merely indignant, James was determined to rule as a King by divine right and put down insolence where he found it .
Sir Edward Cecil told the House that Coke had been misrepresented at Whitehall. “’Tis dangerous when things go between the head and the heart. Those things that may be cavilled at in the Lord Coke’s speeches are told the King with aggravation, but the good service he doth him is concealed.”
Almost immediately, Privy Council sent for Coke. “You have forgotten,” they told him, “the duty of a servant, the duty of a Councillor of State and the duty of a subject.” Kneeling, Coke was deprived of his place at Council table. “He aunswered little,” reported Chamberlain; only “that he hoped he had fay led in none of these, but God’s will and the King’s be done.” Eight guards escorted Coke to the Tower. He was locked in Lord Cobham’s old quarters. One of the rooms had been used as a kitchen; as Coke approached with his guards he saw something scrawled cm the door: “This room wants a cook.”
Three gentlemen were ordered to search Coke’s chambers in the Temple. His books and papers were taken away, the doors locked and sealed. Privy Council debuted how lo exempt him from the King’s General Pardon which accompanied a dissolution of Parliament. To strike his name from the list might rouse added resentment in the country. Best to accomplish the thing under cover of faults committed outside of Parliament. No man could be pardoned who had a bill against him in court. The Crown entered suit against Coke for thirty thousand pounds — an old debt supposedly due to Queen Elizabeth, once more exhumed to serve its purpose. Sir Edward was put in close confinement, customary only for traitors or murderers. None of his family was permitted to sec him, nor could he walk outside his rooms.
Coke remained in the Tower nearly seven months. “Twenty-six weekes and five dayes,”as he recorded it. Locked in Lord Cobham’s rooms, on February second he had his seventieth birthday. The cold must have been nearly unendurable. Coke was allowed no books—perhaps the greatest deprivation of all—and like any poor forgotten prisoner, wrote verses wit h a piece of coal. Latin verses, they were, about the roaring of the Tower lions in their pit, the damp reeking walls so near the river, the smell (that prison stink of stone and old dried urine). “Heu! horrid us ille locus — May God return me one day to my small house in Norfolk!”
Stories circulated. How Prince Charles interceded, but the King said he knew no Edward Coke. “Mr. Coke, then,” said the Prince. “I know none of that name neither,” James retorted. “But by my saule there is one Captain Cook, leader of the faction in Parliament.” The Earl of Arundel, President of Privy Council and Lord Marshal of England, examined Coke and declared that he had spoken in Parliament to stir up rebellion. “I charge you therefore with treason. I have heard you, Sir Edward, affirm that by law he is a traitor who goes about to withdraw subjects’ hearts from their king.”
“I hold such an one to be a traitor indeed,” Coke answered. “But he that goes about to withdraw the King’s heart from his subjects, him I hold to be an archtraitor.” Coke’s papers were searched in vain by Privy Council, “a whole standard of them.” Sir Henry Guildford was sent out to Stoke to take inventory; the estate would be excellent pickings for courtiers. ”I found little but underwood felled,” Guildford reported to Council, “and no damage done to the deer. I have made inventory of the goods in Stoke House and sealed up the principal rooms and also made inventory of the goods at Bailie’s Farm, but not sealed the rooms as Mr. Henry Coke and his family live there. I have forbidden any felling of timber or removal of cattle.”
This time it looked indeed as though Coke’s career were finished. “He has need to stand fast,” wrote Chamberlain, “for if his footing faile never so litle he is in daunger to come downe headlong.” Rumor had it that when Coke should be called lo answer, it would be for his life. It was said also that the servant of a Gray’s Inn lawyer, “Mr. Byng,” had been racked for talking in defense of Sir Edward. The Earl of Arundel informed Coke that his Majesty, in spite of the order for close confinement, would permit eight of his most learned lawyers to confer with Sir Edward and advise him. Coke asked the Earl to thank the King for his favor. But knowing himself accounted of as much skill in the law as any in England, he needed no such help. Nor did he fear to be judged by law in the cause for which he was accused. “In such a one as I, if the King desire my head, he knows whereby he may have it.”
Toward Easter, Coke’s confinement was mitigated. He was permitted to walk in the Tower grounds; James gave order that his daughter Anne Sadleir might visit him, “she being a discreet woman and likely to endeavor to bring him to more conformity.” Still later. Coke’s eldest son, Sir Robert, was allowed to come and sit with him at dinner. Coke’s case came up in the Court of Wards. He was cleared. Every Judge, those present in court and those who conferred, declared that Sir Edward “neither in law nor conscience was to be charged of any thing.” Sir John Walter, the Prince’s attorney, had even refused to help with the prosecution. “Let my tongue cleave to the roof of my mouth, whenever I open it against Sir Edward Coke.”
In August, 1622, Coke was released from the Tower and permitted to go home, confined however to within a compass of six miles from Stoke. Early in November he received full freedom and returned to his chambers at the Temple. The suit in Court of Wards had been merely an excuse; Coke’s real offense was his conduct in Parliament. Other charges had been attempted — arrogant speeches made when Coke was Chief Justice, his comparing himself on one occasion to Samuel. But these had quickly collapsed. Nothing in Coke’s papers showed even a suspicion of disloyalty. It w as impossible to keep Sir Edward in bondage without cost to the Crown’s Prestige.
“Throw this man where you will,” said James — and must have sighed as he said it — “and he falls upon his legs.”