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Lord of the Law
The fathers of American independence founded their case on “that wonderful Edward Coke … masterful, masterless man,” who made two English kings bow to the common law
June 1957 | Volume 8, Issue 4
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, as the centuries passed, would be 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 rights of Englishmen, and therefore, according to the Lord Coke, null and void.” Patrick Henry also cited Coke as authority for nullification. … 1787, and a Supreme Court of judges created to pass on legislation and interpret it. Sir Edward Coke would indeed have been astonished at the uses to which Bonham’s Case was put.
The bench is a nation’s great conservative. But when a country’s ruler is either a despot or a fool, then old laws, old freedoms, old privileges of the people must be fought for anew, and conservatism takes another name. It becomes rebellion; the tree of liberty is tended by the care and sacrifice of men who, like Coke—like our own John Adams—hate revolution, hate innovation in law or government. Chief Justice Coke, after ten years on the bench, had become a thorn in the royal flesh. King James and Francis Bacon, between them, concocted a plot to get rid of him. In the autumn of 1616, Coke was dismissed from his judgeship. Bacon himself made out the form of discharge and sent it, nicely prepared, to James.
Next day the scroll was brought to Coke in his chambers. Coke, the messenger has told us, took the paper in his hands, read it, bowed his head, and wept. He was 64; as attorney general and judge he had served the state for 23 years. Rugged, lean, still handsome, with the figure and carriage of a much younger man, Coke thought his career was over, and all his opportunity. For five years he brooded, restless, angry; from pure idleness he found himself on the edge of trouble and scandal. With his second wife, the beautiful, imperious Lady Hatton, Coke quarreled over property and over their daughter’s marriage. Noise of it reached the King’s Privy Council and became a matter of state.
In 1621 a Parliament was called; Coke found himself elected from a Cornwall borough. At 69 he commenced the best, most useful years of his long life—years which, from the viewpoint of our American heritage, are most significant. After the glitter of the chief justiceship, Coke’s willingness to serve as humble burgess to Parliament suggests the character and career of a later enlightened conservative, John Quincy Adams, who went from the White House to Congress and remained there for some seventeen years, until his death at eighty.
Sir Edward Coke was extraordinarily well equipped for his great parliamentary adventure. A generation earlier, in 1593, he had been speaker of the House of Commons under Queen Elizabeth. Even during his years as attorney general and judge, when Coke could not hold a seat or vote, he was forever in and out of Parliament, as adviser to the Lords or official messenger between the two houses. He knew every trick of politics—when to delay and when to drive a bill forward, how to soothe the ruffled feelings of the Lords and how to manage a lower house filled with disputatious lawyers who could out-talk the very clock upon the Commons’ wall. As speaker, Coke had stood before Elizabeth to urge the Commons’ three traditional petitions to the throne: free speech, freedom from arrest, ready access to her Majesty. He had seen all three petitions contravened by Majesty, his colleagues taken to prison straight from their seats in the House of Commons.
None knew better what it meant to be “a Parliament man,” what qualities were needed. Coke set them down in his Institutes: “Properties of the elephant,” he called them. First, that he possess no gall or envy. Second, that he be “constant, inflexible, not to be bowed or turned from the right, either for fear, reward or favor.” Third, he must be of ripe memory, so that, recalling perils past (as they are written in the records), he may prevent dangers to come. Lastly, he must dare to be a path breaker, going before that others may follow. “Benevolent, he shows wandering men the way.”