Bacon and Coke II
Bill Long 12/14/04
Do Things Really Go Better with Coke?
The long-lived Edward Coke (pronounced "Cook," 1552-1634) was not only the vigorous opponent of Bacon but repeatedly took on King James I during his tenure as Chief Justice of King's Bench (1613-1616) and as member of Parliament after 1620. His perspectives on the glory and superiority of the common law, though instrumental in getting him removed from the bench and even humiliated in his lifetime, would become foundational for the early generations of American lawyers. Though he is not widely read today, he is perhaps the most significant individual in the common law tradition who shaped the American judiciary's self-understanding as interpreters of law.
Sketching a Life
Coke became a member of Parliament in 1589 and was appointed Elizabeth's Attorney General over Bacon in 1593, thus beginning an enmity with Bacon that only grew with time. As AG he vigorously prosecuted Sir Walter Raleigh and the Gunpowder plot conspirators. For his efforts, he was appointed Chief Justice of Common Pleas in 1606. He began to develop his judicial independence during this time by stressing the superiorty of the common law even over Acts of Parliament, especially in the 1608 Prohibitions Del Roy and 1610 Dr. Bonham's Case, but King James nevertheless appointed him to be Chief Justice of King's Bench in 1613. Perhaps James thought, as Dwight Eisenhower thought in 1953 or Richard Nixon thought in 1970 that the appointments of Earl Warren and Harry Blackmun, respectively, would either make them more conservative or put a "brake" on their incipient liberal tendencies.
But Eisenhower and Nixon were wrong. For some independent-minded people the appointment to a position carrying lifetime tenure actually stimulates their independence even further. This seemed to happen also to Coke. By 1616 he had acted in a high-handed manner by trying to indict Chancellor Ellesmere and others who maintained the position that remedies in equity were available during common law trials and even after judgment was entered in the common law courts. He was removed from his position, but then, in his 70s, had a remarkable recrudescence in Parliament, being instrumental in drafting the 1628 Petition of Right. By this time Charles I was on the throne, and his head would be secure for exactly 21 more years.
Coke's Works
Unlike Bacon, Coke's works were completely in the field of law. His two most significant works were his twelve-volume Reports, consisting of summaries of cases argued before the various royal courts beginning in the late 16th century, and his four-volume Institutes of the Laws of England (the first was published in 1628; the others were published posthumously from 1641-44). Many scholars have pointed out that the Reports do not simply provide dispassionate case summaries; often Coke will not only give arguments of counsel but will "spin" the arguments to support his view of the matter.
Volume I of the Institutes was his elaborate commentary on Littleton's work from 1480 on land tenures. Since real property law was generative of the most ancient common law writs and considerable litigation in the 12th -16th centuries, Cokes' Littleton, as it was known, became the foundational text for understanding the intricacies of land law in the 17th and 18th centuries. The Second Institutes was a commentary on important statutes; the Third Institutes focused on criminal law, and the Fourth Institutes treated the jurisdiction of the courts.
Commitments and Principles
If Coke is known at all today, it is through his holdings/dicta in a number of cases from his tenure on the Court of Common Pleas. The two I will mention here are his view that the common law is "above" the King and that the judge may invalidate an act of Parliament if it is inconsistent with the spirit of the common law. These two principles illustrate that for Coke the common law was almost a "brooding omnipresence" (to use OW Holmes, Jr.'s phrase) or a well of (malleable) insights buried deep in the consciousness of a people, insights that must skillfully be brought to the surface through the work of the judge. Therefore, the judge is a creative person of sorts, a person who must have mastered this tradition and can draw upon it as he applies it to the needs of the day.
Coke's articulation of the principle of judicial review arose in the 1610 Dr. Bonham's Case. Though the case was about the limits of authority of the College of Physicians in regulating the profession, it provided Coke the opportunity to state the following:
"And it appears in our books, that in many cases, the common law will control Acts of Parilament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void..."
This bold approach to the role of the judge, quite contrary to Bacon's theory as described in the previous mini-essay, echoed down the corridors of time and found a ready hearing in the ears of the Great Chief Justice (of the United States), John Marshall. The central principle behind judicial review, the theory of which was first articulated in America in Marbury v. Madison (1803), was that the Courts had the power to declare acts of the legislature (Congress) void. Activist judging? You bet.
Conclusion
Thus, the issues broached by Bacon and Coke or, if we want to "triangulate the relationship," among Bacon, Coke and King James I, became central jurisprudential issues in America not only in the 18th century but are quite alive in the 21st. It is sometimes far more entertaining, and edifying, to remove the issue from its present-day articulation and sink ourselves into another era with other protagonists and antagonists. We are enriched by the issues presented, and we end up learning a whole lot about a most important era in the shaping of the Western mind.
Copyright © 2004-2008 William R.Long |