Lord of the Law

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In the midst of this appalling situation, jurists spoke often and proudly of the laws of England. Considering the legal procedure in other countries, their pride was justified. Trial at the English common law, Coke pointed out, was public, not secret, by a jury of twelve; while on the Continent of Europe, men were tried by inquisition and interrogation on oath, the jury being a Norman or Saxon creation, unknown to Rome and Rome’s civil law. To Coke and his colleagues it was a matter of national pride that even a traitor, most heinous of criminals, was allowed to stand before the public, as Ralegh had stood, and speak in his own defense. Moreover, he might challenge his jury—"challenge the array for unindifference," Coke called it—to the number of 36. Across the Channel, a defendant was given no chance to speak thus publicly, let alone challenge jurors. Often as not he found himself hustled into the castle dungeon of some great lord, where he languished indefinitely or was done to death and his friends none the wiser. Englishmen, said Coke, for 300 years had been protected from such treatment. Any second-term law student could recite from the pertinent chapter of Magna Carta: “ Nullus liber homo … no Freeman shall be taken or imprisoned or be disseised of his freehold or liberties … but by lawful judgment of his peers or by the law of the land….” “Upon this chapter,” Coke wrote, “as out of a root, many fruitful branches of the law of England have sprung.”

Coke’s words came not from complacency but from a true pride on which, as a judge and Parliament man, he acted later at peril of his life. Coke’s dates are 1552-1634, the very seedtime of English constitutional liberties. All over the Continent representative assemblies were falling by the way—the French Estates on the brink of dissolution, the Spanish Cortes rendered impotent. The English Parliament stood alone, and under Stuart rule it tottered dangerously. The Roman law, a system well suited to Europe, was seeping into English courts, a tide about the judge’s feet. That it did not flood the courts was due largely to the English system of teaching law at the Inns of Court where Coke received his training—due largely, also, to Edward Coke in person. “The common law took flesh,” writes Maitland; “That wonderful Edward Coke was loose—masterful, masterless man.”

In the summer of 1606, after thirteen years as attorney general, Coke was named chief justice of the Common Pleas, discarding his plain black woolen gown for the fur-bordered scarlet of a judge’s robe. Authority became him; Sir Edward wore his silks with an air. The white coif hugged his head beneath a wide black velvet cap; around his shoulders lay a great gold collar linked by the mysterious traditional letters SS. (Coke said the letters stood for Science and Sapience, but no one knew if he was right.) In Sir Edward the change was striking; it went deep and seemed to touch every facet of his character. By the oath of an attorney general, Coke had pledged service “to the King.” But when he took the judge’s oath, Coke swore to serve “the King and his people.” The shift of direction was noticeable almost at once. As champion of the common law, Coke set himself doggedly against infringement—he would have called it usurpation—by the courts of civil law: the king’s prerogative courts, the courts ecclesiastical. If these names and terms are foreign to laymen, the principles for which Coke fought are familiar enough: a prisoner’s right to public trial and the writ of habeas corpus, a man’s right not to be jailed without cause shown, his right against self-incrimination in a court of law.

If legal consistency is a virtue, Coke did not have it. And in his reversal his greatness is contained; his life prior to 1607 seems but a preparation. “It is a wonder,” noted a Recorder of London in 1684, “that Sir Edward Coke lord chief justice should differ from Mr. Attorney Coke, for we know his thoughts in Sir Walter Ralegh’s time and his speeches in Charles I his time; they are as different from each other as the times were, and in this particular that gentleman hath had more followers than precedents; but the query is, What is law?”

In this long battle Coke, at first, stood alone against the full power of King James, Lord Chancellor Ellesmere, the archbishops who presided in the courts ecclesiastical with their battery of civilian lawyers—and Coke’s brilliant, lifelong enemy, Sir Francis Bacon. James, who had ruled Scotland according to the Continental system, had no intention, here in this new kingdom, of yielding so much as a point of the royal prerogative. Rex est lex loquens, he said. “The King is the law speaking.” One simple, efficient way of making the royal will felt was government by proclamation. To send out heralds proclaiming a law, or proclaiming an order carrying fine and punishment for infringement was far quicker than waiting for Parliament and a factious House of Commons to dispute, orate, and in the end perhaps vote a desirable bill out of existence.