Lord of the Law

A nation that has weathered a successful revolution, at once sweeps a prideful arm over the blackboard and erases all previous national history. It is a naïve and very human gesture. We saw it in Russia after 1917, in France after 1789, in North America after, let us say, 1787 and the Constitutional Convention. The United States, standing tall if a bit uncertain on its feet, cast off the hand of the mother country and along with it cast off family tradition. For the ensuing century, American historians began their story with the Pilgrim fathers—no earlier. And every word aimed for the proud beginnings of rebellion: Boston Massacre, Patrick Henry, the Continental Congress, Lexington Common and the first bloodshed.

Ideologically, it is an intriguing situation because, prior to 1776 and the actual breaking point, our patriot fathers used their English heritage as strengthening propaganda for rebellion. Britain, they said, had betrayed her ancient constitutional principles. She had taxed without representation, she had quartered troops upon the citizenry in time of peace, she had imprisoned men for speaking their minds in duly elected representative assemblies. We must therefore fight this betrayal and win free. John Adams, seeking to rouse his countrymen, found his inspiration in English books on law and government, books written in London, Sussex, Hampshire. To the Continental Congress in Philadelphia, to the Boston Sons of Liberty, John Adams quoted Locke, Harrington, Sir Edward Coke, calling England to bear witness against England, invoking the enemy’s glorious past to refute the threatening, inimical present—daring America to live by teachings which the parent country had denied her child.

There were others whom Adams might have cited: Sir John Eliot, who died in prison for freedoms which today we inherit; Chief Justice Sir Matthew Hale; Plowden, the early law reporter; or that great Thirteenth-Century judge, Henry de Bracton, who declared the king was “under God and the laws.” The tale and the tradition go back, one might say, to Magna Carta. Yet as focus for a study of Anglo-American constitutional history, no figure stands out with clearer pertinence than Sir Edward Coke, who was Queen Elizabeth’s attorney general and later chief justice under James, first Stuart king of England. The volumes that Coke wrote—law Reports and Institutes, Commentary upon Littleton—remained for nearly three centuries the inspiration and the bane of law students in England and America. Even aside from his books, the facts of Coke’s life are greatly pertinent for Americans, especially his later career as judge and Parliament man. As a young attorney general, Coke was ruthless, expedient, the Queen’s watchdog and protector against the plots and ambitions of Spain, Rome, the common enemy. The Earl of Essex, Sir Walter Ralegh, the eight young gentlemen of the Gunpowder Plot—these and a score of others Coke prosecuted, fighting from the courtroom floor with the hard and witty invective of his advocate’s craft.

For the part Coke played as Ralegh’s prosecutor, the world has not forgiven him. The scene of that dramatic trial, unfolding hour by hour in the Great Hall at Winchester, has an awful magnificence; to set it down is chilling to the biographer’s blood. By present standards of court procedure this was not a trial at all but a public inquiry into guilt already prejudged by bench and bar, and not only prejudged but proclaimed. The jury system of which English-speaking people are now so proud, in the year 1603 served only to mock the idea of justice. The prosecution’s so-called proofs would be thrown out today as absurd, matters purely presumptive. A man accused of treason was allowed no counsel; he must act as his own lawyer. Sir Walter stood in the prisoner’s box, sole spokesman for his life. What he said was eloquent, extraordinarily touching, besides which it was reasonable and, to posterity, convincing.

Yet Ralegh received sentence of a traitor’s death, convicted on the written testimony of a man who never appeared in court, though his prison was not five minutes’ walk from the courtroom. Coke’s harsh words to Sir Walter are often quoted in bar association journals: “I thou thee, thou traitor!∗

[∗ To thou a person in Elizabethan times, instead of calling him you, was proper only if he were a relative, close friend, child, or an inferior, much as the French still employ tu. To thou an equal and an enemy was an insult.]

Thou hast an English face but a Spanish heart!” It would be equable if the context were included—the judge’s terrible words when delivering sentence, his expressed reasons for not permitting Ralegh to have his one and only accuser brought to the courtroom face to face, as Ralegh requested. Should he permit that, Chief Justice Popham told the court, it would be to endanger the state! Everyone accepted the dictum, it was recognized procedure. Ralegh’s arraignment was indeed the very devil’s model of a treason trial.