Lord of the Law

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The English Statute of Proclamations, giving certain powers to the monarch, had been repealed after Henry VIII’s death. But James chose to overlook repeal. No sooner was he on the English throne than he began sending out proclamations wholesale—orders against carrying pistols, against gentlemen residing in London to the neglect of their country estates and farms, against the extravagant dress of females, against the erection of new buildings in the City. The House of Commons objected. In England, they said, new laws were made by the people in Parliament assembled. It was for his Majesty to approve new laws, not to create them.

Coke was sent for; two cases in point were submitted to him by the King’s officers. The Lord Chancellor and Sir Francis Bacon strongly urged him to approve the royal course. Coke refused. He must, he said, consult his eleven brethren, the judges of the two common-law courts. He did so, and the King yielded; Coke and the Commons gained their point. “It was resolved by the twelve judges,” Coke wrote in his Reports, “that the King by his proclamation cannot create an offence which was not an offence before, for then he may alter the law of the land by his proclamations…. The law of England is divided into three parts: Common law, Statute law, and Custom; but the King’s proclamation is none of these….”

“After this resolution,” Coke concludes in his Reports, “no proclamation imposing fine and punishment was afterwards made.”

It had been a dangerous point, a touchy business for the people of England. Royal encroachment was subtle, stealing into the law courts quietly, persuasively. To block the King’s will was hazardous; a judge might find himself unfrocked and worse, imprisoned. James was stubborn and born to a belief in the divine right of kings. The judges, he said, were but his delegates. When he willed, he could take a case from the common-law courts and decide it himself—or at the least summon the judges and “consult” concerning the evidence and the outcome. In Coke’s mind nothing could be more insidious; the courts would be in the King’s hand. As case after case came up, Coke used strategy, bluster, delay—and lost. He lost to the King in Peacham’s Case because the other judges were frightened; Coke was forced to tell James, before trial, which way the case was to go. He lost in Chancery because Courtney v. Glanvil was a bad case which should never have been used as a test. When, in 1616, the famous Case of Commendams came up, Coke, by now more wary, obtained the signatures of his eleven colleagues to a letter declaring it was against the judicial oath to halt a trial for consultation with his Majesty. James, in anger, summoned all twelve judges to the palace, shouted, shook his fist at Coke, used the word “traitorous” and reduced them all to submission —for the moment. But Coke, before he yielded, took opportunity to remind James—in Latin—that English kings had never been supreme; they ruled “under God and the laws.”

Judges cannot set out to be reformers; that is self-evident. Judges sit to keep the laws, not to alter them. In the great Court of Common Pleas it was Coke’s business to adjudicate between John Doe and Richard Roe in whatever private dispute they might present. Judicial choice lay between suitors, not between principles. (“General propositions,” Justice Oliver Wendell Holmes was to say, “do not decide concrete cases.”) Only accidentally might a case come up that was pertinent to the larger question at issue. There came a day when Coke stood at Lambeth in the Archbishop’s palace and defied the entire membership of the High Commission Ecclesiastical—Archbishop Abbot, the great lords of Privy Council, and all the battery of learned civilian lawyers that made up the court. Again, the point that Coke stood out for was small; he came away with only a half victory. Yet his opposition, stubborn, often repeated, began to catch the imagination of his colleagues and, as time passed, of the plain people to whom tales of the law and the courts eventually filtered down. Because of Coke’s years and experience, because too of a dramatic quality in what he said and did, he was listened to, sometimes beyond his just deserts. Already in his fifties the word “oracle” began to follow his name: “oracle of the law.”

Coke’s judgments from the bench changed no law and altered no constitution. Rather they may be looked on as great pronouncements expressed in the ordinary run of judicial duties, forerunners of future legislation. Common Pleas being concerned with private law, some of Coke’s noblest statements grew out of cases that were piddling, almost farcical—an Edwards’ Case for libel, the defendant’s letter hinting in dog-Latin that a bishop had suffered from unmentionable diseases and that the churchman was a cuckold besides. “To the dislike,” wrote the prosecution, “of the dignity and calling of Bishops.” Upon this ludicrous foundation Coke built a noble statement, sending against the ecclesiastical court a prohibition in words that roll and echo down the years: “The Ecclesiastical judge cannot examine any man upon his oath, upon the intention and thought of his heart. No man may be punished for his thoughts. For it hath said in the Proverb, Thought is free.”