The most epic Coke

That's Edward Coke, of course, and it's pronounced "cook." I just finished The Lion and the Throne: The Life and Times of Sir Edward Coke : 1552-1634 and highly recommend it.

In her 1957 book, Catherine Drinker Bowen  makes the old judge and lawyer out to be a very real person. Coke was one of the epic jurists of English and common law. In his early years, he was one of the attorneys in Slade’s Case and Shelley’s Case of 1579. (What is the rule in Shelley’s Case?)

He was a contemporary of Sir Walter Raleigh, John Donne, William Shakespeare, King James, Queen Elizabeth, Oliver Cromwell. He prosecuted nobility and Guy Fawkes (of the Gunpowder Plot to blow up Parliament). He was a big deal and he knew it. He once used his power as judge to chase away his daughters suitor. He could be petty in court and would grandstand at times to impress his queen.

He could have bought the world a Coke with the money he had.

He could have bought the world a Coke with the money he had.

What is most fascinating in the book to me is the see how our common law has developed from these roots. It was a much different time: the average lifespan in the late 1500s in London was eight years. Torture was not allowed by law but could be imposed by the queen. Solicitors (but not barristers) were held in very low regard as they were seen as shysters using their knowledge of the system to manipulate and set dissension among otherwise peaceable people.

As now, judges and attorneys used all legal tools to deal with changing times. Often, these legal tools were stretched to the brink of cynicism. In Coke’s day, there were 50 offenses that carried the death penalty and judges bent over backwards to give acquittals. Some of these crimes were not uncommon and the great distinction was who got caught (which was determined by who one’s enemies were).

In the day, juries were not thought of as factfinders, but as witnesses. They had direct knowledge of the case and were expected to act as such. If they decided they couldn’t make a ruling, they filed an “ignoramus” which meant they were ignorant of the truth. (This was a grave embarrassment to the prosecutor who selected the jury in the first place). A play entitled “Ignoramus” was composed mocking Coke, of all people, and that is where our current annotation of “ignoramus” as a fool, comes from. It was his very own alma mater that presented the play, and Coke didn’t deserve this.

"Eg-no-ra-moose" as some say

"Eg-no-ra-moose" as some say

Paranoia about “outsiders” abounded including the Catholics, now out of power in England, and the Spanish, who were in the ascendant. In 1500s Catholics couldn't swear on Protestant Bible (nor could Puritans). Catholics were persecuted and feared lest they take power. The idea was that the English sovereign would be replaced by a foreign ruler (the pope). Relatedly, Catholics were often hauled into court with conspiracy or treason charges. Often, the accused would resort to “equivocation” wherein he would not lie, but on the other hand would not tell all, or would refuse to answer. At the time, this caused great consternation as swearing an oath on the Bible put one’s soul at risk and the affiant was expected to tell the whole truth, whether directly asked or not. Then, as now, foreign law was distrusted, as it undermined the crown. Coke was very suspicious of such “premunire.”

Parliament and the new King James did not get along. So the King used his equity powers to ignore the common law (via the Court of Chancery). The King had the power to dissolve Parliament when it was about to pass something that didn’t suit him. On the other hand, Coke, who was speaker of the house, used friction with Spain as leverage to make the king acquiesce to Parliament’s power. After all, only by the taxing power of Parliament could the king raise revenue without leading to riots.

Coke is remembered to the ages due to his persistence in adhering to the rule of law instead of the whim of the king. In Bonham’s Case, he went out of his way to hold the king was subject to the law. This, among other things, led him to imprisonment at in the Tower of London. The book makes accessible this epic life.  Great read.