the world has not forgiven him. The scene of that dramatic trial, unfolding hour by hour in the Great Hall at Winchester, has an awful magnificence; to set it down is chilling to the biographer’s blood. By present standards of court procedure this was not a trial at all but a public inquiry into guilt already prejudged by bench and bar, and not only prejudged but proclaimed. The jury system of which English-speaking people are now so proud, in the year 1603 served only to mock the idea of justice. The prosecution’s so-called proofs would be thrown out today as absurd, matters purely presumptive. A man accused of treason was allowed no counsel; he must act as his own lawyer. Sir Walter stood in the prisoner’s box, sole spokesman for his life. What he said was eloquent, extraordinarily touching, besides which it was reasonable and, to posterity, convincing.

Yet Ralegh received sentence of a traitor’s death, convicted on the written testimony of a man who never appeared in court, though his prison was not five minutes’ walk from the courtroom. Coke’s harsh words to Sir Walter are often quoted in bar association journals: “I thou thee, thou traitor!∗

[∗ To thou a person in Elizabethan times, instead of calling him you, was proper only if he were a relative, close friend, child, or an inferior, much as the French still employ tu. To thou an equal and an enemy was an insult.]

Thou hast an English face but a Spanish heart!” It would be equable if the context were included—the judge’s terrible words when delivering sentence, his expressed reasons for not permitting Ralegh to have his one and only accuser brought to the courtroom face to face, as Ralegh requested. Should he permit that, Chief Justice Popham told the court, it would be to endanger the state! Everyone accepted the dictum, it was recognized procedure. Ralegh’s arraignment was indeed the very devil’s model of a treason trial.

In the midst of this appalling situation, jurists spoke often and proudly of the laws of England. Considering the legal procedure in other countries, their pride was justified. Trial at the English common law, Coke pointed out, was public, not secret, by a jury of twelve; while on the Continent of Europe, men were tried by inquisition and interrogation on oath, the jury being a Norman or Saxon creation, unknown to Rome and Rome’s civil law. To Coke and his colleagues it was a matter of national pride that even a traitor, most heinous of criminals, was allowed to stand before the public, as Ralegh had stood, and speak in his own defense. Moreover, he might challenge his jury—"challenge the array for unindifference," Coke called it—to the number of 36. Across the Channel, a defendant was given no chance to speak thus publicly, let alone challenge jurors. Often as not he found himself hustled into the castle dungeon of some great lord,

where he languished indefinitely or was done to death and his friends none the wiser. Englishmen, said Coke, for 300 years had been protected from such treatment. Any second-term law student could recite from the pertinent chapter of Magna Carta: “ Nullus liber homo … no Freeman shall be taken or imprisoned or be disseised of his freehold or liberties … but by lawful judgment of his peers or by the law of the land….” “Upon this chapter,” Coke wrote, “as out of a root, many fruitful branches of the law of England have sprung.”

Coke’s words came not from complacency but from a true pride on which, as a judge and Parliament man, he acted later at peril of his life. Coke’s dates are 1552-1634, the very seedtime of English constitutional liberties. All over the Continent representative assemblies were falling by the way—the French Estates on the brink of dissolution, the Spanish Cortes rendered impotent. The English Parliament stood alone, and under Stuart rule it tottered dangerously. The Roman law, a system well suited to Europe, was seeping into English courts, a tide about the judge’s feet. That it did not flood the courts was due largely to the English system of teaching law at the Inns of Court where Coke received his training—due largely, also, to Edward Coke in person. “The common law took flesh,” writes Maitland; “That wonderful Edward Coke was loose—masterful, masterless man.”

In the summer of 1606, after thirteen years as attorney general, Coke was named chief justice of the Common Pleas, discarding his plain black woolen gown for the fur-bordered scarlet of a judge’s robe. Authority became him; Sir Edward wore his silks with an air. The white coif hugged his head beneath a wide black velvet cap; around his shoulders lay a great gold collar linked by the mysterious traditional letters SS. (Coke said the letters stood for Science and Sapience, but no one knew if he was right.) In Sir Edward the change was striking; it went deep and seemed to touch every facet of his character. By the oath of an attorney general, Coke had pledged service “to the King.” But when he took the judge’s oath, Coke swore to serve “the King and his people.” The shift of direction was noticeable almost at once. As champion of the common law, Coke set himself doggedly against infringement—he would have called it usurpation—by the courts of civil law: the king’s prerogative courts, the courts ecclesiastical. If these names and terms are foreign to laymen, the principles for which Coke fought are familiar enough: a prisoner’s right to public trial and the writ of habeas corpus, a man’s right not to be jailed without cause shown, his right against self-incrimination in a court of law.

If legal consistency is a virtue, Coke did not have it. And in his reversal his greatness is contained; his life prior to 1607 seems

but a preparation. “It is a wonder,” noted a Recorder of London in 1684, “that Sir Edward Coke lord chief justice should differ from Mr. Attorney Coke, for we know his thoughts in Sir Walter Ralegh’s time and his speeches in Charles I his time; they are as different from each other as the times were, and in this particular that gentleman hath had more followers than precedents; but the query is, What is law?”

In this long battle Coke, at first, stood alone against the full power of King James, Lord Chancellor Ellesmere, the archbishops who presided in the courts ecclesiastical with their battery of civilian lawyers—and Coke’s brilliant, lifelong enemy, Sir Francis Bacon. James, who had ruled Scotland according to the Continental system, had no intention, here in this new kingdom, of yielding so much as a point of the royal prerogative. Rex est lex loquens, he said. “The King is the law speaking.” One simple, efficient way of making the royal will felt was government by proclamation. To send out heralds proclaiming a law, or proclaiming an order carrying fine and punishment for infringement was far quicker than waiting for Parliament and a factious House of Commons to dispute, orate, and in the end perhaps vote a desirable bill out of existence.

The English Statute of Proclamations, giving certain powers to the monarch, had been repealed after Henry VIII’s death. But James chose to overlook repeal. No sooner was he on the English throne than he began sending out proclamations wholesale—orders against carrying pistols, against gentlemen residing in London to the neglect of their country estates and farms, against the extravagant dress of females, against the erection of new buildings in the City. The House of Commons objected. In England, they said, new laws were made by the people in Parliament assembled. It was for his Majesty to approve new laws, not to create them.

Coke was sent for; two cases in point were submitted to him by the King’s officers. The Lord Chancellor and Sir Francis Bacon strongly urged him to approve the royal course. Coke refused. He must, he said, consult his eleven brethren, the judges of the two common-law courts. He did so, and the King yielded; Coke and the Commons gained their point. “It was resolved by the twelve judges,” Coke wrote in his Reports, “that the King by his proclamation cannot create an offence which was not an offence before, for then he may alter the law of the land by his proclamations…. The law of England is divided into three parts: Common law, Statute law, and Custom; but the King’s proclamation is none of these….”

“After this resolution,” Coke concludes in his Reports, “no proclamation imposing fine and punishment was afterwards made.”

It had been a dangerous point, a touchy business for the people of England. Royal encroachment was subtle, stealing into the law courts quietly,

persuasively. To block the King’s will was hazardous; a judge might find himself unfrocked and worse, imprisoned. James was stubborn and born to a belief in the divine right of kings. The judges, he said, were but his delegates. When he willed, he could take a case from the common-law courts and decide it himself—or at the least summon the judges and “consult” concerning the evidence and the outcome. In Coke’s mind nothing could be more insidious; the courts would be in the King’s hand. As case after case came up, Coke used strategy, bluster, delay—and lost. He lost to the King in Peacham’s Case because the other judges were frightened; Coke was forced to tell James, before trial, which way the case was to go. He lost in Chancery because Courtney v. Glanvil was a bad case which should never have been used as a test. When, in 1616, the famous Case of Commendams came up, Coke, by now more wary, obtained the signatures of his eleven colleagues to a letter declaring it was against the judicial oath to halt a trial for consultation with his Majesty. James, in anger, summoned all twelve judges to the palace, shouted, shook his fist at Coke, used the word “traitorous” and reduced them all to submission —for the moment. But Coke, before he yielded, took opportunity to remind James—in Latin—that English kings had never been supreme; they ruled “under God and the laws.”

Judges cannot set out to be reformers; that is self-evident. Judges sit to keep the laws, not to alter them. In the great Court of Common Pleas it was Coke’s business to adjudicate between John Doe and Richard Roe in whatever private dispute they might present. Judicial choice lay between suitors, not between principles. (“General propositions,” Justice Oliver Wendell Holmes was to say, “do not decide concrete cases.”) Only accidentally might a case come up that was pertinent to the larger question at issue. There came a day when Coke stood at Lambeth in the Archbishop’s palace and defied the entire membership of the High Commission Ecclesiastical—Archbishop Abbot, the great lords of Privy Council, and all the battery of learned civilian lawyers that made up the court. Again, the point that Coke stood out for was small; he came away with only a half victory. Yet his opposition, stubborn, often repeated, began to catch the imagination of his colleagues and, as time passed, of the plain people to whom tales of the law and the courts eventually filtered down. Because of Coke’s years and experience, because too of a dramatic quality in what he said and did, he was listened to, sometimes beyond his just deserts. Already in his fifties the word “oracle” began to follow his name: “oracle of the law.”

Coke’s judgments from the bench changed no law and altered no constitution. Rather they may be looked on as great pronouncements expressed in the ordinary run of judicial duties,

forerunners of future legislation. Common Pleas being concerned with private law, some of Coke’s noblest statements grew out of cases that were piddling, almost farcical—an Edwards’ Case for libel, the defendant’s letter hinting in dog-Latin that a bishop had suffered from unmentionable diseases and that the churchman was a cuckold besides. “To the dislike,” wrote the prosecution, “of the dignity and calling of Bishops.” Upon this ludicrous foundation Coke built a noble statement, sending against the ecclesiastical court a prohibition in words that roll and echo down the years: “The Ecclesiastical judge cannot examine any man upon his oath, upon the intention and thought of his heart. No man may be punished for his thoughts. For it hath said in the Proverb, Thought is free.”

Bonham’s Case came to court; Coke seized occasion to declare the common law above Parliament as well as above the king: “When an Act of Parliament is against common right and reason … the common law will control it and adjudge such Act to be void.”

It was the most controversial judicial dictum of Coke’s life, and one which, as the centuries passed, would be interpreted according to men’s special needs. … 1765, and a Stamp Act passed in Parliament. New England protesting. “An Act against natural equity is void!” shouted James Otis of Massachusetts, and from Boston to Virginia trumpets blew. Massachusetts Assembly declared the Stamp Act invalid, “against Magna Charta and the natural rights of Englishmen, and therefore, according to the Lord Coke, null and void.” Patrick Henry also cited Coke as authority for nullification. … 1787, and a Supreme Court of judges created to pass on legislation and interpret it. Sir Edward Coke would indeed have been astonished at the uses to which Bonham’s Case was put.

The bench is a nation’s great conservative. But when a country’s ruler is either a despot or a fool, then old laws, old freedoms, old privileges of the people must be fought for anew, and conservatism takes another name. It becomes rebellion; the tree of liberty is tended by the care and sacrifice of men who, like Coke—like our own John Adams—hate revolution, hate innovation in law or government. Chief Justice Coke, after ten years on the bench, had become a thorn in the royal flesh. King James and Francis Bacon, between them, concocted a plot to get rid of him. In the autumn of 1616, Coke was dismissed from his judgeship. Bacon himself made out the form of discharge and sent it, nicely prepared, to James.

Next day the scroll was brought to Coke in his chambers. Coke, the messenger has told us, took the paper in his hands, read it, bowed his head, and wept. He was 64; as attorney general and judge he had served the state for 23 years. Rugged, lean, still handsome, with the figure and carriage of a much younger man, Coke thought his career was over, and all his opportunity. For five years

he brooded, restless, angry; from pure idleness he found himself on the edge of trouble and scandal. With his second wife, the beautiful, imperious Lady Hatton, Coke quarreled over property and over their daughter’s marriage. Noise of it reached the King’s Privy Council and became a matter of state.

In 1621 a Parliament was called; Coke found himself elected from a Cornwall borough. At 69 he commenced the best, most useful years of his long life—years which, from the viewpoint of our American heritage, are most significant. After the glitter of the chief justiceship, Coke’s willingness to serve as humble burgess to Parliament suggests the character and career of a later enlightened conservative, John Quincy Adams, who went from the White House to Congress and remained there for some seventeen years, until his death at eighty.

Sir Edward Coke was extraordinarily well equipped for his great parliamentary adventure. A generation earlier, in 1593, he had been speaker of the House of Commons under Queen Elizabeth. Even during his years as attorney general and judge, when Coke could not hold a seat or vote, he was forever in and out of Parliament, as adviser to the Lords or official messenger between the two houses. He knew every trick of politics—when to delay and when to drive a bill forward, how to soothe the ruffled feelings of the Lords and how to manage a lower house filled with disputatious lawyers who could out-talk the very clock upon the Commons’ wall. As speaker, Coke had stood before Elizabeth to urge the Commons’ three traditional petitions to the throne: free speech, freedom from arrest, ready access to her Majesty. He had seen all three petitions contravened by Majesty, his colleagues taken to prison straight from their seats in the House of Commons.

None knew better what it meant to be “a Parliament man,” what qualities were needed. Coke set them down in his Institutes: “Properties of the elephant,” he called them. First, that he possess no gall or envy. Second, that he be “constant, inflexible, not to be bowed or turned from the right, either for fear, reward or favor.” Third, he must be of ripe memory, so that, recalling perils past (as they are written in the records), he may prevent dangers to come. Lastly, he must dare to be a path breaker, going before that others may follow. “Benevolent, he shows wandering men the way.”

Coke was a born teacher; it lay in his nature to “show men the way.” From the beginning he had a profound sense of the importance of procedure in parliamentary assemblies, knew that upon small points the liberties of constituents could depend. For instance, in the matter of voting from the floor. When a division was called, should the Ayes get up and go out to the lobby to be counted while the Noes sat still, or the other way? There were not nearly enough

seats to go round. A man voting Aye went out and lost his seat to somebody who had been standing. Weaker souls, who cared less for principle than for comfort, voted No, so as to keep their places. A Puritan burgess complained that members behaved like sheep, sitting pat until they saw who went out and who stayed in, and then casting their vote with the most important people. (Sir Walter Ralegh, who before his trial was a very arrogant man, awe-inspiring to lesser citizens, had been seen more than once to hold a neighbor by the sleeve so the man could not go out and vote against a favored measure.) Members began to feel as if they were shunted about on these occasions like pawns in a game. Why, they asked Coke angrily, should the Ayes have to go out to the lobby and the Noes keep their seats? Why could not the Noes go out instead?

Coke did not hesitate. “The inventor that will have a new law,” he said, “is to go out and bring it in; and they that are for the law in possession—the old law—must keep the House, for they sit to continue it.” This sounded reasonable, it had Coke’s authority behind it and the Commons submitted. Any hint of disorder Coke saw as a danger; the Crown might use it to punish the Commons, rob them of their cherished privileges. As speaker, Coke had once asked leave to tell the lower house of its birth as a separate chamber: how, anciently, having no assembly room of their own and meeting with the Lords, the Commons feared to speak their minds, and so “the House was divided and came to sit asunder.” On the King’s demanding by what right this drastic move was made, a Commons member had replied that each lord (sitting by birth, not election) represented only himself and his land. Whereas the Commoners, though by birth and fortune inferior, “every one of them represented a thousand of men.”

Yet each one represents a thousand. The statement lay at the heart and root of the lower house, of its rights and, one might say, of its pride. Coke did not hesitate to remind his colleagues of it. In this Parliament of 1621 his words carried the weight of more than thirty years in the public service. He referred often and easily to the past, to great names and stirring events that to younger men were now legend. … 1588, and the defeat of Spain: “Remember the Armada!” Coke said. “Queen Elizabeth, Angliae amor. Oh, she was the flower of Queens as the rose is the queen of flowers.”

Monarcha juris, king of the law, they called Coke now in the house. Though it had been the state’s pleasure to remove Sir Edward Coke from the King’s bench on earth—a member told the Commons one morning—he for one “hoped Sir

Edward would have a place in the King’s Bench in heaven.” This was the Parliament that revived the old impeachment process —unused for centuries—and brought to the bar for trial offenders in high places, such as Lord Chancellor Bacon and King James’s attorney general, Sir Henry Yelverton. Coke was named chairman of the powerful Committee for Grievances. With his instinct for looking backward to find in history his justification, Coke saw the two houses in their ancient role—that of a superior court: the High Court of Parliament, with power to judge and punish. Official salaries being extremely low, Crown officers, from the lord treasurer down, lived on “perquisites” or starved; the Crown simply had not the money to support the whole vast government machinery. Consequently everyone came to Westminster Hall with his hand in his pocket, prepared to pay for services rendered. Not only the lawyers in a suit but often enough the judges were rewarded by gratuities. “Free gifts,” they were called.

Coke hated the system and had said so from earliest days. “Make what laws you will,” he told the Commons now, “inflict what punishment you will, little good will come of it if officers be bought and sold. He that buys must sell.” Tracking down bribery in King James’s government was a dangerous undertaking. To affix the words guilty to James’s court favorites was a step toward the Tower and the cell called Little Ease. Coke knew it well. Yet in this Parliament as leader of the opposition—the country faction—he showed a cold, hard self-forgetfulness that was new to him. Court and Country the two factions were called now, terms and titles that were to cross the Atlantic and find use in the mouths of rebellious New Englanders.

Coke’s influence over his colleagues lay not alone in his courage and blunt speaking but in the ease he had developed from long experience, the advocate’s quick shift from mood to mood. Coke could be funny when he chose. And he chose often—told stories, jokes, anecdotes, and made the houses laugh. A plain countryman by birth and breeding, Coke’s similes came from the everyday life the Commoners knew—the dance called Almagne; the tasteless spice, Herb-John, which cooks tossed in every pot. “Like Herb-John, neither good nor bad,” he said of one proposal; and of the suggestion to postpone certain bills to autumn session, “It would be too great an Almagne leap betwixt this and Allhallowtide; the bills would take wind.”

A house that smiles is a house softened to reason. Prince Charles sat with the Lords, a sober, proud young man who had little sympathy for the country faction. Yet even Charles declared he could not have enough of Coke’s speaking, “was never weary with hearing him, he mingled mirth with business to so good purpose.” “If it please your Grace,” Coke said, “there is no danger in a merry man but only in a sullen and melancholy, as Caesar feared not Brutus, but

pale and sad Cassius.”

But Brutus too can be dangerous; it was the last time a Stuart prince had words of praise for Sir Edward. In James’s mind free speech, for instance, was a matter conferred upon the Commons by Majesty, a matter not of right but of grace, to be granted after humble petition, and depending for its maintenance on good behavior. This bold Norfolk lawyer used the word rights when he should have said by the King’s grace. “Take heed,” Coke told the lower house, “that we lose not our liberties by petitioning for liberty to treat of grievances.” King James loathed all Parliaments; this was the first session he had called in seven years (since 1614). He desperately needed money, the fat taxation that could come only by the Commons’ vote. But Coke persisted in reminding the Lords that Parliaments, according to the ancient laws of England, should meet often. King Alfred, Coke said confidently, had ordained two Parliaments to be held each year; Edward I and III had been equally eager for their Parliaments to meet “for redressing mischiefs and grievances.”

The words met with a clamor of dissent from high circles. Where was Coke’s authority for such statements? Surely, he had invented them! Three days later, Coke brought his precedents to the Lords “in a book,” wrote a diarist, “because he was suspected by some malevolent persons to have devised them of his own head.” Coke read them and the Lords cleared him. As the Commons grew more knowledgeable and thereby more insolent, James grew angrier. In December, 1621, he adjourned Parliament, sent Coke to the Tower and kept him for nearly seven months in close confinement, none permitted access except the King’s messengers. “Twenty-six weeks and five dayes,” as Coke recorded it. Allowed no books, Sir Edward, like any forgotten prisoner, wrote verses with a piece of coal. Latin verses, they were, about the roaring of the Tower lions in their pit, the damp reeking walls so near the river, the prison stink. Heu! horridus ille locus —“May God return me one day to my small house in Norfolk!” In August Coke was freed; perhaps James considered it more politic to let him go, a man so much admired in the country. Coke returned to full activity and sat in the Parliaments of 1624 and 1625. But in 1626 the King kept him out by a ruse, the well-known strategy of naming him high sheriff of his county. During their one year’s tenure, high sheriffs could not sit in Parliament.

It was in the famous session of 1628 that Coke rose to his true stature. This was the Parliament which, after much turmoil and hazard, presented to the King that Petition of Right that has been called one of the three great documents of English history—and which served as model for our own patriot forefathers in the Continental Congress. King Charles, son of James

I, desperately in need of money, had been attempting to tax the country by way of forced loans. Men who refused payment were thrown in jail; the principal gentry summoned by hundreds to London to answer for their disobedience. Whole counties were aroused. The plight of the Refusers, as they were called, became a cause célèbre; when the Refusers were finally released from prison their counties returned them to Parliament with cheers and unanimity.

Coke at once assumed a leading part in the struggle. At 76 he stood up in his place with the sturdy confidence of an old man who has lived through trouble and danger and has seen bad days turn to better. It was for him and John Selden, the legal scholar, to explain to Parliament the meaning of lex terrae, the law of the land. “I will seek nothing out of mine own head,” Coke said, “but from my heart and out of Acts of Parliament…. The King cannot tax any by way of loans…. I’ll begin with a noble record, it cheers me to think of it. 25 Edward III; it is worthy to be written in letters of gold: ‘Loans against the will of the subject are against reason and the franchises of the land’ … What a word is that franchise ! It is a French word, and in Latin it is libertas.” Yet here in England a man’s person had become, it seemed, less secure than his goods. “It is against law that men should be committed and no cause shown…. It is not I, Edward Coke that speaks it but the records that speak it.”

Timid souls, or those less experienced, were for pleading with the King “in an humble manner.” The Lords framed a petition which included the words “a saving of the King’s sovereignty.” Coke stood out against it passionately—shed tears as he spoke, was overcome, sank to his seat and rose to speak again. “Take heed,” he said, “what we yield unto! Magna Charta is such a fellow that he will have no sovereign. I wonder this ‘sovereign’ was not in Magna Charta or the confirmation of it?…Our Petition … is a Petition of Right, grounded on acts of Parliament. Let us hold our privileges according to the law.” The whole story of the great Petition cannot be told here—how it was hammered out between the two houses, how passed, how King Charles slid round it at the first, and how in the end he consented in the ancient words, Soit droit fait comme il est desiré. Bonfires flared that night in London streets; from steeple to steeple bells told the joyful news. Coke’s work was done. He could retire, now, to the country and in the few years left to him write his Institutes of the Laws of England, correct the manuscripts

of his remaining law Reports.

At the age of 82, Sir Edward died in his house at Stoke Poges. Even before he was gone, the King’s men rode out to search his papers, bring away what was pertinent and seal up his study. “He is held,” King Charles had said when he gave the order, “too great an oracle amongst the people, and they may be misled by any thing that carries such an authority as all things that he speaks or writes.” It was well that Coke, as he lay dying in the great curtained bed, could not hear the King’s men or know that they were near. They were thorough, ransacked study and library, took away the manuscripts of all four parts of Coke’s Institutes, the manuscript notes for two additional books of Reports, and, according to Coke’s grandson, “51 other manuscripts, with the last will of Sir Edward, wherein he had for several years been making provision for his younger grandchildren.”

Monarcha juris, they had called Sir Edward in the Commons. King of the law. Coke was no revolutionist, as Cromwell was who came after him, as Tom Paine was, or Thomas Jefferson. To define our debt to Coke is not easy. He never set foot on American soil. Yet what he said and did prepared the way. There beside the Thames, knights, citizens, and burgesses fought for rights which we in America fell heir to. In Westminster courtroom battles over procedure, jurisdiction, “right reason and the common law,” constitutional government found its way to birth. When the time came, we changed the face of this English constitution; amid the sound of guns we repudiated what we hated, adapted what we liked. Yet the heritage endured. No United States citizen can read Coke’s story without a sense of recognition. Perhaps it is not too much to say, a sense of gratitude.