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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
Coke was a born teacher; it lay in his nature to “show men the way.” From the beginning he had a profound sense of the importance of procedure in parliamentary assemblies, knew that upon small points the liberties of constituents could depend. For instance, in the matter of voting from the floor. When a division was called, should the Ayes get up and go out to the lobby to be counted while the Noes sat still, or the other way? There were not nearly enough seats to go round. A man voting Aye went out and lost his seat to somebody who had been standing. Weaker souls, who cared less for principle than for comfort, voted No, so as to keep their places. A Puritan burgess complained that members behaved like sheep, sitting pat until they saw who went out and who stayed in, and then casting their vote with the most important people. (Sir Walter Ralegh, who before his trial was a very arrogant man, awe-inspiring to lesser citizens, had been seen more than once to hold a neighbor by the sleeve so the man could not go out and vote against a favored measure.) Members began to feel as if they were shunted about on these occasions like pawns in a game. Why, they asked Coke angrily, should the Ayes have to go out to the lobby and the Noes keep their seats? Why could not the Noes go out instead?
Coke did not hesitate. “The inventor that will have a new law,” he said, “is to go out and bring it in; and they that are for the law in possession—the old law—must keep the House, for they sit to continue it.” This sounded reasonable, it had Coke’s authority behind it and the Commons submitted. Any hint of disorder Coke saw as a danger; the Crown might use it to punish the Commons, rob them of their cherished privileges. As speaker, Coke had once asked leave to tell the lower house of its birth as a separate chamber: how, anciently, having no assembly room of their own and meeting with the Lords, the Commons feared to speak their minds, and so “the House was divided and came to sit asunder.” On the King’s demanding by what right this drastic move was made, a Commons member had replied that each lord (sitting by birth, not election) represented only himself and his land. Whereas the Commoners, though by birth and fortune inferior, “every one of them represented a thousand of men.”
Yet each one represents a thousand. The statement lay at the heart and root of the lower house, of its rights and, one might say, of its pride. Coke did not hesitate to remind his colleagues of it. In this Parliament of 1621 his words carried the weight of more than thirty years in the public service. He referred often and easily to the past, to great names and stirring events that to younger men were now legend. … 1588, and the defeat of Spain: “Remember the Armada!” Coke said. “Queen Elizabeth, Angliae amor. Oh, she was the flower of Queens as the rose is the queen of flowers.”
Monarcha juris, king of the law, they called Coke now in the house. Though it had been the state’s pleasure to remove Sir Edward Coke from the King’s bench on earth—a member told the Commons one morning—he for one “hoped Sir Edward would have a place in the King’s Bench in heaven.” This was the Parliament that revived the old impeachment process —unused for centuries—and brought to the bar for trial offenders in high places, such as Lord Chancellor Bacon and King James’s attorney general, Sir Henry Yelverton. Coke was named chairman of the powerful Committee for Grievances. With his instinct for looking backward to find in history his justification, Coke saw the two houses in their ancient role—that of a superior court: the High Court of Parliament, with power to judge and punish. Official salaries being extremely low, Crown officers, from the lord treasurer down, lived on “perquisites” or starved; the Crown simply had not the money to support the whole vast government machinery. Consequently everyone came to Westminster Hall with his hand in his pocket, prepared to pay for services rendered. Not only the lawyers in a suit but often enough the judges were rewarded by gratuities. “Free gifts,” they were called.
Coke hated the system and had said so from earliest days. “Make what laws you will,” he told the Commons now, “inflict what punishment you will, little good will come of it if officers be bought and sold. He that buys must sell.” Tracking down bribery in King James’s government was a dangerous undertaking. To affix the words guilty to James’s court favorites was a step toward the Tower and the cell called Little Ease. Coke knew it well. Yet in this Parliament as leader of the opposition—the country faction—he showed a cold, hard self-forgetfulness that was new to him. Court and Country the two factions were called now, terms and titles that were to cross the Atlantic and find use in the mouths of rebellious New Englanders.