1 few years; and to suppose that the prospect of a privy councillor's place would make any difference to his conduct was even more absurd. It was with difficulty that he was induced in October, 1613, to consent to his promotion; and to soothe him he was immediately made a member of the Privy Council. He no doubt saw that the change would mean further contests with the king; and, though he was not the man to shrink from a fight, he did not like fighting with the king, for whom he felt all the reverence of the Tudor statesman.3 The king soon found that Coke's capacity for mischief had been increased instead of being diminished by his promotion. The three years during which he held his new office were marked by three quarrels upon fundamental questions of constitutional law. case. In Peacham's Case, in 1615, Coke laid it down that it was contrary to law to ask the judges separately to give their opinions upon the question whether certain acts charged against an accused person amounted to high treason. He did not as yet affirm that the judges ought not to be consulted at all concerning a pending But he maintained that, if consulted, they should be consulted in a body. It was not till a later period that he denied the right of the crown to consult the judges at all as to a case which might come before them judicially. It was with difficulty that Coke could be induced to give an opinion; and, ultimately, the opinion he gave was unfavourable to the royal view, that Peacham's acts amounted to high treason.5 Shortly after this episode occurred Coke's famous quarrel with Lord Ellesmere as to the jurisdiction of the court of Chancery. We have seen that the claims made by Coke were baseless, that he behaved with unnecessary violence in his attempt to make a wholly abusive use 1 S. P. Dom. 1611-1618 202, lxxiv 86-Letter of Chamberlain to Carleton; ibid 89, in another letter, he says-" Sir Edw. Coke called up to the Chief Justiceship of the King's Bench, to his own regret and that of all the officers of the Common Pleas. Sir Fras. Bacon made Attorney General; it is feared he will prove a dangerous instrument." 2 Ibid 205 lxxv 4. 3 Above 426; Whitelocke, Liber Famelicus (C.S.) 48 tells us a tale which illustrates this-"As I went with him, I asked him why he stayed not at the court to dynner. He told me, that whilest he stood by the king at dynner, he wolde ever be asking of him questions of that nature that he had as life be out of the roome, and that made him be as far of as he mighte even at sutche times. I gesse it was concerning matters of his prerogative, whiche the kinge wolde take ill if he wear not answered in them as he wolde have it." 4 Above 428 n. I. 5 Spedding, Letters and Life of Bacon v 114-118, above 428 n. 1; for the king's views on the matter see ibid 105-106; for an account of Coke's opinion see ibid 120-121. "Ibid v 245-254, 385-398. The best discussion and vindication of the decree in favour of the Chancery as against Coke's objections, which were made later in Third Instit. 123-125, and Fourth Instit. 86, will be found in Collect. Jurid. i 23-78. of the statute of Præmunire, and that he deservedly failed to accomplish his objects.1 The third and by far the most important quarrel arose on the question of the king's right to stop or delay proceedings in the common law courts by the issue of the writ de non procedendo rege inconsulto. The court refused to stop the proceedings summarily on the production of the writ; and the case in which the question arose, after being elaborately argued (Jan. 1615-1616), was left for a time undecided, and in the end was compromised.2 It was probably a wise step to compromise it, as the case turned upon the right to appoint to an office in the court of Common Pleas—a matter upon which the common law judges had always been sensitive. Obviously the king would have a better chance of getting a decision on the general question favourable to himself if the case did not so directly concern the judges, and if it turned upon facts which were not covered by recent authority. It was not long before such a case arose. A few months later the court refused to delay the hearing of a case concerning the question of the right to present to a living, which the king had given to a bishop to be held in commendam with his bishopric. Under the influence of Coke, the judges wrote a letter to the king defending their action; and it was clear from this letter that the judges were inclined to deny or to limit the prerogative of the king to control the conduct of cases pending before his courts in which his interests were at stake. It followed that, unless they were checked, they would make good their claim to determine the limits of the prerogative. In June, 1616, all the judges were summoned to a meeting of the Council, and the enormity of their conduct was explained by the king himself. Coke alone attempted to defend the letter. The other judges submitted, and promised to protect 5 1 Vol. i 461-463. 2 The best account will be found in Bacon's Works (Ed. Spedding) vii 683-686; it is reported by Moore 842 sub nomine Brownloe v. Cox and Mitchell; by Bulstrode, 3 Buls. 32, where it appears as Brownlow v. Cox and Mitchell; and in 1 Rolle's Rep. 188, 206, 288; for Bacon's argument which "lost not one auditor that was present in the beginning,” and won praise from Coke, see Works (Ed. Spedding) vii 687-725. 3 Vol. i 260-261. 4 The Case of Commendams, Hobart 140 sub nomine Colt and Glover v. Bishop of Coventry; Moore 898; 1 Rolle 451; for an account of the proceedings taken in consequence of the judges' action see Collect. Jurid. i 1-19; cp. Spedding, Letters and Life of Bacon v 352-354. we 5" We hold it our duties to inform your majesty that our oath is in these express words: that in case any letters come unto us contrary to law, we do nothing by such letters, but certify your majesty thereof, and g forth to do the law notwithstauding the same letters. We have advisedly considered of the said letters of Mr. Attorney and with one consent do hold the same contrary to law. And therefore . have according to our oaths and duties, at the open day prefixed the last term proceeded," Collect. Jurid. i 8-9; it is clear that on this matter the early cases were very conflicting, vol. ii 561-564; but there were later precedents in favour of Coke's view, above 348. the king's prerogatives both in the pending Case of Commendams and for the future.1 2 4 On the 26th of June Coke was again summoned before the Council, and asked what he had to say in defence of his conduct in encouraging proceedings under the statute of Præmunire against those who had applied to the chancellor for injunctions against the proceedings of courts of law, and in the other matters in which he had given offence to the king. His defence in respect of the first point practically amounted to a promise not to offend again in that particular way. But his answers in respect of the other matters were so little satisfactory to the king that he was suspended from the Privy Council, forbidden to go on circuit, and ordered to spend his leisure in revising and correcting his reports.3 His revision of his reports practically amounted to a denial that they contained any serious errors. Later on, his attention being called to five specific points, he admitted that they contained certain opinions as to the prerogative which were open to misconception; and he explained them in a manner satisfactory to himself, but not at all satisfactory to the king. He concluded by asking the king to refer these points to the judges, and also to ask them to certify what cases he had published for the maintenance of the prerogative, for the good of the church, for the quieting of men's inheritances, and for the general benefit of the commonwealth. James saw clearly enough that Coke's views as to the position of the common law in the state, and its relation to the king, were too fundamentally different from his own to allow him to sit again as chief justice. On November 14, 1616, he was dismissed from his office. Chamberlain's view that the four P's Pride, Prohibitions, Præmunire, and Prærogative-were the 1 Collect. Jurid. i 5-19. 6 2 Spedding, Letters and Life of Bacon v 398; cp. Gardiner, History of England iii 23; Ibid vi 76-77-"His speech was that there were of his Reports eleven books that contained about five hundred cases: That heretofore in other Reports, as namely those of Mr. Plowden (which he reverenced much) there hath been found nevertheless errors which the wisdom of time had discovered and later judgements controlled : and enumerated to us four cases in Plowden which were erroneous; and thereupon delivered in to us the enclosed paper, wherein your Majesty may perceive that my Lord is an happy man, that there should be no more errors in his five hundred cases than in a few cases of Plowden." 5 See the objections and answers printed in Bacon's Works (ed. 1824) vi 397-408; for the small book entitled "Observations on Coke's Reports attributed to Egerton see below 478 n. I. See the document entitled "Remembrances of His Majesty's declaration touching the Lord Coke" drawn by Bacon, Spedding, Letters and Life of Bacon vi 94-96; the innovations with which the royalist lawyers charged him are collected in another paper of Bacon's entitled "Innovations introduced into the Laws and Government,' ibid vi 90-93. 7 Bacon's Works (ed. 1824) vi 409: cp. Spedding, Letters and Life of Bacon vi 89. 1 causes of his dismissal was substantially correct. The chancellor's speech to his successor made it quite clear that no lawyer who held the views of Coke could ever hope to be raised to the bench. His fate was to be "a lesson to be learned of all, and to be remembered and feared of all that sit in Judicial places." " 2 The fall of Coke was marked by an open letter to him written by a candid yet, on the whole, a sympathetic friend. It is remarkable both for the light which it throws on his character, and for the advice which it contains. The writer evidently sympathizes with his religious and political views with his hatred of Rome, and with his stand against arbitrary authority. He is clearly a Puritan who recognizes the great services which Coke's legal knowledge had done, and yet might do, to the cause of religion and the constitution. He had evidently studied Coke's character closely, and was quite alive to his faults. "In discourse," he says, "you delight to speak too much," and "by this sometimes your affections are entangled with a love of your own arguments, though they be the weaker." "While you speak in your own element, the law, no man ordinarily equals you; but when you wander, as you often delight to do, you wander indeed"-a criticism which would seem to show that his literary style is a faithful reflection of his manner of speech. He accuses Coke of conversing too much with books, too little with men who are his equals. He is too apt to blame or praise excessively on slight grounds. He uses his legal knowledge to make the law lean too much to his opinion-a bad example to the student. Though a rich man, he gives little or nothing to the poor-not even to his own tenants. His conduct of the Overbury case in which, from the bench, he had thrown out wild and wholly baseless hints of a plot which had had something to do with the death of Prince Henry, is censured, because he had announced 4 1" The common speech is that four Ps have overthrown and put him down--that is Pride, Prohibitions, Praemunire, and Praerogative," Chamberlain to Carleton, Nov. 14, 1616, cited Spedding, op. cit. vi 87. 2 The lord chancellor's speech to Mountague when he was sworn chief justice of the King's Bench, Moore 827; the king's speech in the Star Chamber (above 429 n. 1) was referred to as laying down the precepts that a judge should follow, and the faults in Coke's Reports were pointed out in detail. The letter is printed in Bacon's Works (ed. 1824) v 403-411; Spedding, Letters and Life of Bacon vi 121-131 gives conclusive reasons against the view that it was written by Bacon; his conclusion is that it was written by "some zealous Puritan who wished to see Coke reinstated in order that he might be again the great enemy of the Papists, and the great champion of the commonwealth against the crown"; and Gardiner had also come independently to the same conclusion. At the arraignment of Monson (2 S.T. 949, 950) he threw out hints of a great Popish plot, and is said even to have hinted that this plot had had something to do with the death of Prince Henry: the whole foundation for this seems to have been some hints dropped by Franklin, who, as Spedding says (Letters and Life of Bacon v 338), "had discovered the soft place in Coke's head.' The evolution of the theory of a vast Popish plot in Coke's mind, and its source, can be traced from the his suspicions too precipitately. Finally, he is advised to walk circumspectly, and, by so doing, to regain a position in which he can renew his efforts to serve both church and state. That Coke was to some extent influenced by this advice, the third, and in some respects the most admirable, part of his career will show. From 1616-1620 Coke seems to have entertained hopes that he might again gain the favour of the king and be restored to place and power. An opportunity seemed to offer itself in the prospect of a marriage between Sir John Villiers, the elder brother of Buckingham, and Frances, his youngest daughter by his second wife Lady Elizabeth Hatton.1 Coke had married his second wife on November 6, 1598. She was the granddaughter of Burghley, and a wealthy heiress; and there were some who were surprised that she had condescended to marry one who was merely a successful lawyer.2 Doubtless Coke's wealth attracted her, and led her to prefer him to his great rival Bacon. Bacon had no cause to envy Coke's success. The marriage had been celebrated in an irregular manner which had involved them both in a prosecution before the ecclesiastical courts, and this had given rise to a good deal of baseless scandal. Their subsequent relations had been notoriously unsatisfactory-each of them was unsuited to the other. Though Lady Hatton had supported her husband just before his fall, after he had been dismissed she deserted him." Therefore following entries in the State Papers-In October, 1615, Coke notes that "Sir A. Mainwaring, the Prince's carver, lay at Mrs. Turner's house when the prince sickened," S.P. Dom. 1611-1618 324, lxxxii 128; in November Mrs. Turner says she has heard that the prince was poisoned, ibid 327, lxxxiii 21; later in November Franklin hints at a great plot involving the prince, the Palgrave, and Lady Elizabeth, ibid 334, lxxxiii 74; in December Coke writes to the king that "something is still behind which must not be trusted to writing," ibid 337, lxxxiv 19; then came Coke's injudicious remarks reported in the State Trials; the whole episode is a good illustration (1) of Coke's fear of and prejudice against the Roman Catholics, and (2) of the manner in which he rushed to a conclusion on scanty evidence in cases in which his prejudices were enlisted. 5 1 Spedding, Letters and Life of Bacon vi 218; for the disastrous way in which this marriage turned out, see Coll. Top. et Gen. vi 122. 2 Chamberlain's Letters, Temp. Eliz. (C.S.) 29—“The seventh of this moneth (November, 1598) The Quenes Atturney married the Lady Hatton, to the great admiration of all men, that after so many large and likely offers she shold decline to a man of his qualitie, and the world will not beleve that it was without a misterie." 3 Dict. Nat. Biog. Coke. 4S.P. Dom. 1598-1601 189, 190, cclxx 102-There were rumours that Lady Hatton was with child by one of her servants before Coke married her, and that "it was no marvel Mr. Attorney wept sitting with the judges, for he has gone up and down ever since his marriage like a dead man discomforted"; however in August, 1599, Chamberlain writes, "The Lady Hatton is brought to bed of a daughter, which stoppes the mouth of the old slander," Chamberlain's Letters, Temp. Eliz. (C.S) 63. 5 June 22, 1616, Chamberlain writes of Coke that "His lady has solicited much for him, and refuses to sever her interests from his as is desired," S.P. Dom. 16111618 375, lxxxvii 67. 6 November 18, 1616, Sherburn writes-" Lady Hatton has left her husband in his disgrace, taking much of his plate and jewels," ibid 406 lxxxix 33. |