forbade it to "lay any scandal or aspersion upon the stategovernment or ministers thereof." A climax was reached when Finch, the Speaker, told the House that the king had ordered him to stop any speakers "who should go about to lay an aspersion on the ministers of state." For some time the House sat silent. The conflict between loyalty to the king and indignation at this infringment of its privileges aroused emotions which no words could express. Tears stopped the speech of Coke and other members who tried to address the House. At length it was resolved to go into Committee; and the Speaker, released from the chair, retired to report what had happened to the king.1

It was in this committee that Coke made his last, and, under the circumstances, his boldest speech in Parliament. He pointed out that in Edward III.'s reign John of Gaunt, the king's son, and Lords Latimer and Nevil had been accused; that in Henry IV.'s reign the whole of the Council had been complained of and removed; that Parliament existed to moderate the king's prerogative, and that there were no abuses which the House could not treat of; that this Parliament had not dealt sincerely with the king, and with the country, because they had not made a true representation of the causes of their miseries; that he repented of this, and, "not knowing whether ever he should speak in this House again he would now do it freely, and there protested that the author and cause of all those miseries was the Duke of Buckingham."" This speech, says Alured, "was entertained and answered with a cheerful acclamation of the House, as when one good hound recovers the scent, the rest come in with a full cry: so they pursued it and laid the blame where they thought the fault was.'

Perhaps Charles would again have dissolved Parliament to save the Duke; but the feeling of the Lords was strongly against this course. He could not resist the pressure put on him by both Houses; and he was at length driven to give his unqualified consent to the Petition in the ordinary form of words -"droit soit fait comme est desiré."

Coke took little part in the remainder of the session, nor was he present in the succeeding session." He felt rightly that, with the passing of the Petition of Right, his life's work was done; for in that Petition certain of the fundamental rights of Englishmen.

1 Gardiner, History of England vi 302-305; Rushworth Pt. I vol. i 613-622.
2 Ibid 615, 621-622.

Gardiner, History of England vi 307.

3 Ibid 622.

Crew, Proceedings and Debates of the House of Commons in 1628 70, mentions that the Speaker was directed to send for Coke that he might advise concerning the complaints of the merchants; but there is no evidence that he obeyed the

summons.

had been declared in language which admitted of but one interpretation; and this declaration was not weakened by any ambiguous saving of prerogative right or sovereign power. That it was not thus weakened was, as we have seen,' thought by many to be a defect, because it tied the hands of the executive too strictly in times of danger; and, as was shortly to be seen, the declaratory form in which it was drawn up concealed a logical defect, because it could be argued that it made no change in the law. Both these defects are a testimony to the legal mould in which Coke's influence had led the parliamentary opposition to shape their ideas. All through his life he had held firmly to the ideas that the law must be supreme, and that the law needed only to be clearly declared to be all-sufficient. The placing on the Statute Book of a measure which embodied both these ideas was a fitting crown to his career.

and

The six remaining years of his life were spent at Stoke Pogis, where he died in 1634. Naturally he was an object of suspicion to the king. After the debates upon tonnage and poundage upon religious questions, and after further attacks on Buckingham's successors, the Parliament had in 1629 been hastily dissolved, and the popular leaders imprisoned. Charles had embarked on his attempt to rule by the prerogative; and it was important to silence all objectors. In 1631 the king was frightened by the rumour that Coke was publishing a book (perhaps the Fourth Institute 3) in which there was ground to suspect that there might be "somewhat to the prejudice of his prerogative." He commanded the lord keeper to stop the publication of this book because, "he is held too great an oracle amongst the people, and they may be misled by anything that carries such an authority as all things do that he either speaks or writes." Moreover, as rumours were afloat that his health was declining, he directed that care should be taken to seal up his study after his death. This direction was obeyed in 1634.5 Many manuscripts, including his will, were taken from his house, and many more from his chambers in the Temple. These were

1 Above 451, 452.

2 Vol. vi c. 6.

It is clear from the Preface to Co. Litt. that the first three Parts of the Institutes were finished in 1628, and that the Fourth part was only begun; the Preface to the Fourth Institute leads me to think that Coke had finished it later; this was probably known to Coke's friends, and some rumour of it may have reached the king.

4S.P. Dom. 1629-1631 490, clxxxiii 18; in 1633 the attorney-general was again examining Coke's Reports, ibid 1631-1633 251, ccxlviii 15.

Ibid 1634-1635, 165, cclxxii 62; ibid 340-341, cclxxviii 10-directions for seizure and perusal of Coke's papers in the Temple; any that concern the king are to be retained; ibid 348, cclxxviii 28-direction to deliver to Coke's son any papers not concerning the king; cp. ibid 351, cclxxviii 35 for a note of the papers taken from the Temple and retained.

retained till 1641, when the House of Commons, on the motion. of one of his sons, requested that they might be restored to his heir. The request was granted, and all that could be found were handed over. His will, over which he had spent much trouble in the later years of his life, was never discovered.1

The fears of Charles are the best evidence of Coke's reputation. It was a reputation fairly earned by the manner in which he had devoted his great mental and bodily powers to the single object of understanding, applying, explaining, systematizing, and exalting the common law. Throughout his life all his interests were subordinated to this. All his understanding, his reading, his powers of dialectic, his capacity for persuasive speech, were pressed into this service. In Council and Parliament as in the courts his thought was coloured by the concepts of the common law, and book case and record illustrated his speech. Necessarily he had the defects of these qualities. Like Bentham he was, to use Mill's expressive phrase, a one-eyed man who saw clearly.

In

The place which he fills in English history is due to a large extent to the character of the age in which he lived. quieter times he would have been merely a great common lawyer with conservative prejudices.2 But in the seventeenth century a great common lawyer was necessarily drawn into politics. Whatwas to be the position of the common law in relation to its rivals? What was to be the position of the common law in relation to the executive government of the state? What were the doctrines of the common law as to the powers of Parliament and as to the liberties of the subject? At a time when such questions as these

1 Coke, Detection i 354-"Upon his death-bed Sir F. Windebank by an order of Council came to search for seditious and dangerous papers. By virtue whereof he took Sir Edward Coke's comment upon Littleton his comment upon Magna Charta, etc., the Pleas of the Crown, and Jurisdiction of the Courts, and his 11th and 12th Reports in manuscript, and I think 51 other manuscripts, with the last will of Sir Edward wherein he had for several years been making provisions for his younger grand-children. The books and papers were kept till seven years after, when one of Sir Edward's sons in 1641 moved the House of Commons that they might be delivered to Sir Robert Coke .. which the king was pleased to grant, and such as could be found were delivered; but Sir Edward's will was never heard of more to this day;" an earlier will is mentioned in S.P. Dom. 1623-1625 119, cliv 84-85; it is dated November 15, 1623.

2 For any fundamental point of the ancient common laws and customs of the realm, it is a maxim in policy, and a trial by experience, that the alteration of any of them is most dangerous; for that which hath been refined and perfected by all the wisest men in former succession of ages, and proved and approved by continual experience to be good and profitable for the commonwealth, cannot without great hazard and danger be altered or changed," 4 Co. Rep. Pref. v, vi; as Gardiner says, History of England iv 40-"Two hundred years later his name would have gone down to posterity, with Eldon's, as that of a bigoted adversary of all reform. As it his lot was cast in an age in which the defence of the technicalities of the law was almost equivalent to a defence of the law itself."

was,

were being raised, a man who was both profoundly learned in the common law, and passionately convinced of its excellence, was compelled to take part in politics in order to defend its claims to supremacy. And the fact that he was thus drawn into politics caused an apparent inconsistency in his career, and some real inconsistency in his statements of the doctrines of constitutional law. There seems at first sight to be little in common between the zealous attorney-general of Elizabeth's reign, and the man who framed and helped to carry the Petition of Right. But this inconsistency is to a large extent only apparent. He could be a zealous servant of the crown under the balanced Tudor monarchy, which so skilfully and diplomatically shelved fundamental questions. Under James I. he was driven to resist the attempts to substitute the supremacy of the crown for the supremacy of the common law. In the later years of James I.'s reign, and under Charles I., he was driven into alliance with the parliamentary opposition, in order to uphold as against the crown the laws which secured the rights and privileges of Parliament, the liberties of the subject, and the Protestant character of the Reformation settlement. He stood still. His outlook was always that of a statesman of the latter part of the Tudor period. It was the changing political scene which seemed to place him in constantly fresh positions, and necessarily led him to modify his views as to important doctrines of constitutional law.

2

The character of the man and of his age fully account for his vast influence upon the law and politics of the seventeenth century. But they do not fully account for the permanence of his influence upon the future development of English law. This permanence is due to the fact that his devotion to the common law led him to consider it to be his duty to employ the scanty leisure of a busy career in the work of restating in his writings all its principal doctrines. If therefore we would understand the reasons for the permanence of his influence, if we would estimate its nature and extent, we must examine the character of these writings.

Coke's Writings

At the bar, on the bench, and in Parliament, Coke was a leader of men; and yet he found time to write a great deal more than any other lawyer of his day. For good and for evil this active professional life has left its mark upon his writings; and we must

1 Above 427-428.

2" And for that I have been called to this place of judicature by his majesty's exceeding grace and favour, I hold it my duty, having observed many things cerning my profession, to publish, amongst others, certain cases that have been ged and resolved since his majesty's reign," 8 Co. Rep. Pref. xxxiv.

always bear it in mind if we are to give a fair judgment upon his literary achievement. No one can contend that Coke's works are literature; but if we remember the manner of man he was, and the history of his life, we may well wonder that some of them contain so many literary qualities. I shall consider here (i) Coke's literary equipment; and (ii) his published writings.

(i) Coke's literary equipment.

That Coke was thoroughly well read in the literature of the law, both in print and manuscript, from the time of Glanvil and Bracton to his own days, can hardly be denied by any one who has studied his writings. He was a master of the medieval law. No one surpassed him in knowledge of the Year Books, the Register of Writs, and the medieval Statutes. He had studied many records of the court of the Chancery, and of Parliament.1 He was familiarly acquainted with the great books on English law-Glanvil, Bracton, Fleta and Littleton, and with the small tracts the Novæ Narrationes, the Diversity of Courts, the old Natura Brevium. He was equally well acquainted with the modern authorities. He could cite and criticize such modern reporters as Dyer and Plowden, and the abridgments of Statham, Fitzherbert, and Brooke. He had read the Doctor and Student, Staunford, Crompton, and Lambard. He was intimately acquainted with the Tudor statutes. And, at the same time, his experience as barrister, attorney-general, judge, and privy councillor, gave him a familiarity with affairs, which made him able to explain and apply the law derived from these authorities in a thoroughly practical and common-sense way.

His active career assisted his literary style. No one could be a successful lawyer in those days unless he were a skilful pleader; and to be a skilful pleader exactness of expression, above all things, was essential. He must also have gifts of lucid expression if, as judge or barrister, he was to prevail with a jury, and if, as attorney-general or as privy councillor, he was called on to explain

1 He sometimes uses a record to verify a Year Book, Pinchon's Case (1612) 9 Co. Rep. at pp. 89a, 89b; or to correct a Year Book, Rigeway's Case (1594) 3 Co. Rep. 52b-a decision as to repleading after demurrer "against the opinion of 9 H. 6 35 in an Avowry, which record had been seen, and did not warrant the report of the Book." 2 Dowman's Case (1584) 9 Co. Rep. at p. 12b—a decision of Dyer's criticized; Thoroughgood's Case (1612) ibid at p. 137b-certain opinions expressed in a case in Dyer are criticized; cp. Bacon's account of Coke's statement as to the revision of his Reports, Spedding, Letters and Life of Bacon vi 76, to the effect that he (Coke) had found four cases in Plowden which were erroneous; for an instance see Cuppledike's Case (1602) 3 Co. Rep. at p. 6b.

See his critical list in 10 Co. Rep. Pref. xiiib-xxa; cp. 2 Co. Rep. Pref. iv, v. * For a good illustration of the practical way in which he can approach legislation see his explanation of the policy of the Tudors in regard to agriculture, which he inserts at the end of Tyrringham's Case (1585) 4 Co. Rep. at p. 39a.