« PreviousContinue »
me. You take to yourself a liberty to disgrace and disable my law, my experience, my discretion : what it pleaseth you, I pray, think of me: I am one that knows both mine own wants and other men's; and it may be, perchance, that mine mend, and others' stand at a stay. And surely I may not endure in public place to be wronged without repelling the same, to my best advantage to right myself. You are great, and therefore have the more enviers, which would be glad to have you paid at another's cost. Since the time I missed the solicitor's place (the rather I think by your means), I cannot expect that you and I shall ever serve as attorney and solicitor together ; but either to serve with another on your remove, or to step into some other course, so as I am more free than I ever was from any occasion of unworthy conforming myself to you more than general good manners or your particular good usage shall provoke ; and if you had not been short-sighted in your own fortune (as I think), you might have had more use of me. But that side is passed. I write not this to show my friends what a brave letter I have written to Mr. Attorney. I have none of those humours; but that I have written it to a good end, that is, to the more decent carriage of my master's service, and to our particular better understanding one of another. This letter, if it should be answered by you in deed and not in word, I suppose it will not be worse for us both, else it is but a few lines lost, which for a much smaller matter I would have adventured. So this being to yourself, I for my part rest,” &c. *
Bacon has likewise left on record a relation of the manner in which the attorney-general occasionally treated him, in which the courtesy and dignity of Coke appear to little advantage.
“ I moved to have a reseizure of the lands of Geo. Moore, a relapsed recusant, a fugitive, and a practising traytor; and showed better matter for the queen against the discharge by plea, which is ever with a salvo jure.
* Bacon's Works, vol, iv. p. 570. Biogr. Brit. vol. iii. p. 681.
And this I did in as gentle and reasonable terms as might be.
* Mr. Attorney kindled at it, and said, Mr. Bacon, if you have any tooth against me, pluck it out ; for it will do you more hurt than all the teeth in your head will do you good. I answered coldly, in these very words: • Mr. Attorney, I respect you: I fear you not; and the less you speak of your own greatness, the more I will think of it.
« He replied, “I think seorn to stand upon terms of greatness towards you, who are less than little, less than the least ;' and other such strange light terms he gave me, with that insulting which cannot be expressed.
“ Herewith stirred, yet I said no more but this: . Mr. Attorney, do not depress me so far ; for I have been your better, and may be again, when it please the queen.'
“ With this he spake, neither I nor himself could tell what, as if he had been born attorney-general; and in the end bade me not meddle with the queen's business, but with mine own; and that I was unsworn, &c. I told him, sworn or unsworn was all one to an honest man; and that I ever set my service first, and myself second; and wished to God that he would do the like.
“ Then he said, it were good to clap a cap. utlagatum upon my baek! To which I only said, he could not, and that he was at a fault ; for he hunted upon an old scent.
“ He gave me a number of disgraceful words besides; which I answered with silence, and showing that I was not moved with them.” *
It is probable that these complaints were recorded for the purpose of being submitted to the king ; but it does not appear that any proceedings took place in consequence.
The conduct of Sir Edward Coke on the bench, in maintaining the integrity of the judicial character, at a period when the judges were dependent on the favour of
* Bacon's Letters, by Birch, p. 22. Bacon's Works, by Montagu, rol.vii. p. 338.
the court, deserves a very particular examination. One of the earliest cases in which he was called upon to assert the independence of his judgment, arose out of the proceedings of the high commission court. The unconstitutional and dangerous measures of which that court was made the instrument, have been described by many historians. Cases in which it would have been impossible to procure a conviction in a court of common law were referred to the ecclesiastical commissioners, who did not hesitate to lend themselves to the violent and arbitrary designs of the court. The parties who were aggrieved by these unconstitutional proceedings not unfrequently appealed for protection to the courts of common law; and soon after Coke's accession to the bench, many prohibitions were moved for and granted, to stay the proceedings both of the court of high commission and of the presidents of the council of York and Wales. At length, the number of these prohibitions attracted the attention of the court; and the judges were called upon to justify their proceedings. This justification was prepared and communicated to the council by Sir Edward Coke, and contains a full and bold defence of the conduct pursued by himself and his brothers in granting prohibitions to the courts of the lords president.* [See Note 1.] The churchmen and courtiers, however, were far from being satisfied with these reasons; and Bancroft, the archbishop of Canterbury, preferred a formal complaint to the king against the conduct of the judges of the common law. In consequence of this complaint, both the archbishop and the judges were, in the month of November 1608, summoned before his majesty ; when Bancroft insisted that the king had power in his own person to determine of what matters the ecclesiastical court had cognizance; and that, if he was so pleased, he might take any cause from the determination of the judges and decide it himself. And the archbishop said, “ that this was clear in divinity, that such authority belongs to the king by the word of God in the Scripture.” This singular doctrine
+ 12 Rep. 50.
received an immediate and unqualified denial from Coke, with the assent of all his brethren present; “and it was,". says he, “greatly marvelled that the archbishop durst inform the king that such absolute power and authority belonged to the king by the word of God.” The conclusion of this conference is admirably told by the chief justice himself. “Then the king said, that he thought the law was founded upon reason, and that he and others had reason as well as the judges. To which it was answered by me, that true it was that God had endowed his majesty with excellent science and great endowments of nature; but his majesty was not learned in the laws of his realm of England. [Note 2.7 And causes which concern the life or inheritance, or goods or fortunes, of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law ; which law is an act which requires long study and experience, before that a man can attain to a cognizance of it; and that the law was the golden met-wand and measure to try the causes of the subjects, and which protected his majesty in safety and peace. With which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said. To which I said, that Bracton saith, Quod rex non debet esse sub homine, sed sub Deo et lege.'"* The event of this conference soon became public, and is thus related in a contemporary letter: “ On Sunday, before the king's going to Newmarket, * * * my Lord Coke and all the judges of the common law were before his majesty, to answer some complaints of the civil lawyers for the general granting of prohibitions. I heard that the Lord Coke, amongst other offensive speech, should say to his majesty that his highness was defended by his laws; at which saying, and with other speech then used by the Lord Coke, his majesty was very much offended, and told him that he spake foolishly, and said that he was not defended by his laws, but by God; and so gave the Lord Coke, in other words, a very sharp reprehension both for that and other
* 12 Rep. 63. See also 2d Inst. 601. State Trials, vol. ii. p. 131.
things, and withal told him that Sir Thomas Compton (the judge of the admiralty court) was as good a judge as Coke.”* The boldness and ready learning displayed by Sir Edward Coke at this interview cannot be too much admired.
About four years after this attempt to depress the courts of common law, Abbott, who had succeeded Bancroft in the see of Canterbury, renewed the complaints against the judges, and, as before, both parties were summoned before the king. A vehement controversy ensued between the archbishop and Coke, and he and the other judges of the common pleas offered reasons in support of the course they had adopted. They were again questioned on a subsequent day; but, remaining constant in their opinion, the other judges were sent for, and, under the direction of Ellesmere, the lord chancellor, declared themselves of a contrary opinion. Upon this, all the judges were again directed to attend the council; but the justices of the common pleas were commanded to retire, because, as they were informed by the lord treasurer, they had contested with the king. Ultimately, the judges of the king's bench and the barons of the exchequer differing in their opinions, it was resolved in council, that the court of high commission should be reformed. This was the most successful blow that had yet been aimed at the exorbitant powers of these dangerous tribunals.
The reformed commission, as it was termed in the language of the court, was accordingly prepared; and, in order, no doubt, to prevent his voice being raised against it, the name of Sir Edward Coke, together with those of some others of the judges, was inserted in it. On its being published in the great chamber of the archbishop at Lambeth, the chief justice of the common pleas and the other judges named in it duly attended. But Coke, on being commanded to sit by force of the commission,
* Lodge's Illustrations, vol. iii. p. 364. Aikin's Court of King James, vol. i. p. 319.
+ 12 Rep. 85,