Hailed by Sir Robert Phelips* as ‘that great monarcha juris’, and by Richard Cresheld* as ‘that honourable gentleman to whom the professors of the law, both in this and all succeeding ages are and will be much bound’, Sir Edward Coke was the finest lawyer of his generation.
Brilliant though he was, Coke was cursed by an arrogance that rendered him obnoxious to many of his contemporaries. Few men were more self-important or more convinced of Coke’s great abilities than Coke himself. On being refused permission to lay before Star Chamber a series of depositions in May 1605, Coke closed his books and refused to speak for the rest of the day.
Coke was afraid of no man, whether king, prince or nobleman. This was an admirable trait in a judge, of course, but where others would have inclined to circumspection, Coke invariably spoke his mind. In June 1604, for instance, he needlessly antagonized the Lords Dudley, Sheffield and Effingham, who accompanied Sir Robert Dudley to Star Chamber, by wondering aloud why they had chosen to ‘countenance and embrace any cause contrary to the law’. The Venetian ambassador was probably not far from the truth when he remarked in 1616 that all the nobility hated Coke.
Not unnaturally Coke’s appeal to ordinary folk greatly alarmed the king and his ministers, who were instinctively wary of the vulgar populace. In April 1616 James I declared that he would ‘no more endure that popular and unlawful liberty’ which characterized the behaviour of Coke and his judicial colleagues. Seven months later lord chancellor Ellesmere (Thomas Egerton†) condemned Coke for his ‘ambitious popularity’. In July 1617 Ellesmere’s successor, lord keeper Sir Francis Bacon*, described Coke as being ‘by nature insociable and by habit popular’.
Some contemporaries believed that Coke was unhinged. In 1624 the earl of Kellie reported that Coke had been so soundly upbraided by Prince Charles that he was likely to be driven mad, ‘which is not difficult matter to be done, he being already half mad’.
Coke’s failings were not limited to arrogance, unsociability and malice. A wife-beater, given to uncontrollable fits of rage,
I. The Early Years of James I, 1603-6
Coke rose to prominence during the reign of Elizabeth. After marrying the heiress of the Paston family’s large East Anglian estate, he clawed his way up the legal profession, and in 1593 served as Speaker of the Commons. In the following year, despite being only in his early forties, he was appointed attorney-general. Shortly after the death of his first wife in 1598, Coke improved his fortunes still further by marrying Elizabeth, Lady Hatton, the niece of secretary of state Sir Robert Cecil†. Lady Hatton was a particularly fine catch, for apart from being a Cecil her first husband, Sir William Hatton†, had acquired a lease of the lands formerly owned by his uncle, the late lord chancellor Sir Christopher Hatton†, who had died owing enormous sums to the Crown. On his own death in 1597, Sir William passed this lease to his wife rather than to his second cousin Christopher Hatton* of Clayhall, Essex who, in theory at least, was the heir to the Hatton estate. This lease, which cost £1,500 each year and still had 18 years to run, gave Lady Hatton and her new husband control of lands worth around £4,000 a year. Among the properties which Coke acquired by this marriage was Hatton House, on the Strand, where Lady Hatton gave birth to a daughter in August 1599. Another new estate brought to him by his wife was the Buckinghamshire manor of Stoke Poges, which lay only a short ride from Windsor Castle. There in September 1601 Coke lavishly entertained the queen, who had consented to be the godmother to his new daughter.
Following the accession of James I, Coke was reappointed attorney-general. Like many old Elizabethans, he resented the late queen’s parsimony in bestowing honours, and in May 1603 he petitioned his wife’s uncle, Sir Robert Cecil, for a knighthood, claiming that as a former Commons’ Speaker this honour was his due. Shortly thereafter he was not only granted his wish but was also appointed a gentleman of the Privy Chamber and counsel to the new queen, Anne of Denmark. Six months later he served as prosecuting counsel in the treason trial of Sir Walter Ralegh at Winchester, at which he poured scorn and abuse on his hapless victim. Shortly thereafter he assisted in the trial of several of Ralegh’s co-conspirators. Two other prominent lawyers were also assigned to argue the Crown’s case, but Coke dominated proceedings so thoroughly that one observer remarked that there were, ‘in effect, none but the attorney’ present.
When Parliament was summoned in January 1604, Coke used his wife’s electoral influence to secure the return of Sir John Hobart I for Corfe Castle, and his own influence at Thetford and Dunwich to ensure the election of Sir Bassingbourne and Philip Gawdy respectively. He also helped the two universities obtain the franchise, a favour which may help to explain why Cambridge University subsequently returned as its senior Member his Buckinghamshire neighbour Nicholas Steward.
Shortly before the Parliament began Coke delivered to the sheriff of Buckinghamshire two writs of outlawry against Sir Francis Goodwin*. In so doing he helped to precipitate the Buckinghamshire election dispute, which marred the first few weeks of the new assembly.
Following the discovery of the Gunpowder Plot, Coke and the lord chief justice of King’s Bench, Sir John Popham†, examined the surviving plotters and helped draw up the indictment against Sir Everard Digby.
As the second session drew to a close, Coke prepared the general pardon for the king’s signature. Under normal circumstances this task would have been uncontroversial, but Cecil, now earl of Salisbury, favoured inserting an additional clause that referred to the ‘middle shires of Great Britain’. Coke was horrified, for there was as yet no such legal entity as Great Britain, nor was it possible for English and Scottish juries to be merged as the clause implied. Consequently he advised Salisbury to drop the proviso entirely.
Although he never said so explicitly, Coke was opposed to the king’s plan to unite England and Scotland. In his view the moment that the two kingdoms were united the Common Law, being peculiar to England, would be utterly extinguished. In February 1607, during the Parliament’s third session, Coke declared that he had been the first to reach this conclusion, which soon found widespread support among his fellow lawyers. This suggests that it may have been Coke who was responsible for persuading the judges in April 1604 to tell the king that the Union would necessarily dissolve the Common Law; certainly he was present when they reached this conclusion. In Coke’s opinion, the Union was an impossibility because it was not within the power of the king to abolish the Common Law, which owed its existence not to the Crown or to Parliament but to custom. Like the fifteenth-century jurist Sir John Fortescue, Coke believed that the Common Law dated from the time of the ancient Britons. Its fundamental nature was proved because, despite successive waves of foreign invasion and various changes of dynasty, it had survived intact. Few of Coke’s fellow lawyers agreed that the Common Law was as old as Coke claimed, but many of them nevertheless shared his belief that, being customary rather than enacted, the Common Law was incapable of alteration. Consequently, they were just as appalled as Coke at James’s desire for a formal Union. Another reason that Coke opposed the Union was that he believed that the union of two kingdoms was ‘without precedent’, an observation which one historian has fairly characterized as ‘nothing more than a confession of ignorance’.
II. Coke Triumphant, 1606-10
On 30 June 1606 Coke was appointed lord chief justice of Common Pleas, having been earmarked for the job since the beginning of February.
For the time being James was mollified, but it was not long before a case erupted which led him to side with the Common Law judges’ critics. In July 1607 the puritan lawyer Nicholas Fuller* was imprisoned in the Fleet for describing the proceedings of High Commission as illegal and popish. The king heartily approved of this punishment, for unless High Commission’s authority was upheld, he observed, kings ‘shall not long after prosper in their government and the monarchy shall fall to ruin’.
Although the Fuller case had now been settled to the king’s satisfaction, and Coke and Bancroft had temporarily declared a truce, the underlying problem of the prohibitions issued by the Common Law courts remained. A principal flashpoint was the power enjoyed by the Council in the Marches, and in particular its authority over the four English border counties of Herefordshire, Worcestershire, Gloucestershire and Shropshire. For several years the leading gentry of the border counties had waged a bitter if unsuccessful campaign to restrict the Council’s authority to Wales, and now they were joined by the judges of the Common Law, whose authority was threatened by the judicial powers exercised by the Council. To the fury of lord president Eure, Coke and his colleagues issued a flurry of prohibitions referring cases before the Council to the Westminster courts. James was aghast, as he eventually intended to create his eldest son prince of Wales, whose authority would be diminished if the Council’s wings were clipped.
The disagreement over the authority of the Council in the Marches coincided with a resumption of the earlier quarrel with Bancroft. Shortly after their audience with James, the judges were re-summoned to Whitehall and again subjected to a tirade. If the common lawyers had their way, protested James, ‘no cause of tithes will be held in the ecclesiastical courts’. Coke and his colleagues were acting like papists, who insisted on a monopoly in the interpretation of Scripture. Encouraged by Bancroft, James not only reaffirmed that the judges were merely the ‘delegates of the king’, but added that he could, if he wished, preside over his own courts. Coke was horrified, and denied that James was entitled to judge any case. Although the king was permitted to sit in Star Chamber, this was merely to enable him to consult the judges rather than to act ‘in judicio’. It was now James’s turn to express outrage. Of course he was entitled to sit in judgment, he insisted. Was he not well equipped to do so, being capable of arguing from reason, upon which the law itself was grounded? Coke, however, would not be browbeaten into surrendering something as vitally important as the independence of the judiciary. Speaking with as much tact as he could muster, he replied that, while it was true ‘that God had endowed His Majesty with excellent science and great endowments of Nature’, James was ‘not learned in the laws of his realm of England; and causes which concern the life or inheritance in goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law’. Taken aback, James remonstrated that if this were correct it would mean that ‘he should be under the law, which was treason to affirm’.
In the event there were no further meetings until June 1609, when Coke and the lord chief justice of King’s Bench, Sir Thomas Fleming†, were summoned before the Privy Council to answer a series of complaints presented by the heads of the Councils in the Marches and the North. After protesting at being hauled before the board yet again, which ‘gives much emboldening to the vulgar’, the two judges patiently explained that the rise in the number of prohibitions reflected the increased business of the two conciliar courts and the fact that the latter continued to exceed their authority, issuing injunctions to the Common Law courts, for instance, ‘which is utterly against law’. To prevent this from happening in future, they recommended that the two conciliar courts should be subordinated to the Westminster courts and staffed by trained lawyers. They also advised that the instructions governing the proceedings of the conciliar courts should be enrolled in Chancery, where they could be publicly inspected. These proposals, which avoided any mention of the controversial subject of the Council in the Marches’ continued authority over the four English border shires, were hard to fault, and under the leadership of Salisbury, now lord treasurer, the Privy Council adopted them wholesale.
Coke and Fleming had now scored a notable victory in their battle to defend their right to issue prohibitions, but the seemingly intractable problem posed by High Commission still remained. During July 1609 the king held a three-day long conference at Whitehall at which the judges were pitted against both leading churchmen and lawyers acting for the Crown, all of whom subjected Coke and his colleagues to a withering assault. The churchmen were incensed that, since the heated exchanges between James and Coke eight months earlier, the Common Law courts had issued more prohibitions than in all previous years combined. James, too, was outraged, and on the first day alone he interrupted Coke three times. Sir Henry Hobart* accused Coke of hypocrisy for claiming that the letters patent from which High Commission derived its immediate authority were invalid when Coke, while attorney-general, had drawn up three of these documents himself. At the end of the proceedings James reasserted his right to sit as a judge, accused Coke of seeking to be the interpreter of God and Man, and instructed Coke to explain in writing the ‘unfit and unjust prohibitions’ issued to High Commission. In the meantime he ordered that no more should be granted.
Until now Coke had defended the supremacy of the Common Law courts against rival jurisdictions, but at the beginning of 1610 he went even further, affirming the supremacy of the Common Law over individual Acts of Parliament. In a landmark judgment known as Bonham’s Case, Coke and two other judges ruled that ‘the Common Law doth control Acts of Parliament, and sometimes adjudge[s] them to be 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 dictum forms the basis of the modern doctrine of judicial review, and was formulated after the Royal College of Physicians pleaded statutory authority in order to defend the fact that it had acted as judge in its own cause.
III. Coke Vanquished, 1611-16
For more than a year after triumphing over Bancroft, Coke remained free of complaints against prohibitions. However, in February 1611 lord admiral Nottingham (Charles Howard*) protested to the king about the number that had been issued to the High Court of Admiralty since 1604. Coke subsequently penned a lengthy rebuttal, but the Admiralty’s judges remained unpersuaded by his arguments, and complained that only wrongdoers, desirous to escape punishment, benefited from prohibitions.
At around the same time that Nottingham filed his complaint, Common Pleas granted a prohibition to Sir William Chancey, an adulterer who had deserted his wife. The king was disgusted, and in February resolved to dismiss Coke unless he received a satisfactory explanation. An anxious Coke hurried to Newmarket to reassure James that he was blameless, but privately to others he admitted his responsibility.
Following the death of Salisbury in May 1612 there were persistent but groundless rumours that Coke would soon be appointed lord treasurer.
Coke was initially horrified that he might be required to quit Common Pleas, and wrote ‘very earnestly’ to the king to prevent it. Despite their earlier bitter disagreements, James had no wish to force Coke to accept the exchange against his will but, taking Bacon’s advice, hinted that if he proved amenable either a peerage or a position on the Privy Council beckoned.
Following the summons of a fresh Parliament in February 1614, Coke again helped Philip Gawdy to a seat at Dunwich.
Shortly after the dissolution, Coke was appointed steward of the University of Cambridge in succession to the 1st earl of Suffolk. The following year he tried to suppress a new play staged by members of the university entitled Ignoramus, which lampooned lawyers in general and Coke in particular - the lead actor not only dressed up to look like him but imitated his voice. However, when Coke tried to take action he was prevented by the king, who enjoyed the first performance so much that he went to see it again.
Unlike most of his judicial colleagues, Coke contributed swiftly to the Benevolence demanded by the king immediately after the dissolution, giving £200.
To the king and his chief ministers, the Peacham case demonstrated that Coke remained as unco-operative as ever. Further evidence of Coke’s unhelpfulness was provided in the autumn of 1614, when he ordered the release of a fraudulent London jeweller named Glanvill who, despite having previously been cleared at the Common Law, had been imprisoned for refusing to obey a Chancery decree. This action greatly irritated lord chancellor Ellesmere, who had sided with Archbishop Abbot in the latter’s earlier quarrel with Coke and had himself questioned the right of Common Pleas to issue prohibitions.
Early in February 1616 Ellesmere fell gravely ill, and it was widely supposed that the king would soon need to appoint a new lord chancellor. Bacon, who had an eye on this office himself, was so worried that James’s choice would light upon Coke that he wrote to the king warning him that if Coke were to succeed Ellesmere, ‘Your Majesty shall put an over-ruling nature into an over-ruling place, which may breed an extreme’. Besides, he added, Coke’s recent efforts to re-order the royal finances suggested that he aimed ‘at another place’.
It soon became apparent that Coke had disastrously miscalculated. Ellesmere miraculously recovered and the king, appalled at Coke’s underhand tactics, promised Ellesmere on 23 Feb. that he would ‘settle good government in like cases hereafter’ and rely ‘wholly upon your information and advice’.
James’s patience had now been tested almost beyond endurance. After allowing Coke to prosecute Somerset at the latter’s trial on 24 May - a task which the lord chief justice accomplished with his customary display of ‘large language’ - James appointed a commission to investigate King’s Bench on 4 June. Headed by Coke’s old enemy Archbishop Abbot, and condemned by the embattled lord chief justice as ‘against law’, its purpose was to examine Coke ‘upon articles and points touching the praemunire’.
Coke’s troubles were only just beginning. Early in October, shortly before the start of the new law term, he was ordered to refrain from sitting in Westminster Hall until further notice and to perform his judicial duties from his chambers in the Inner Temple instead.
IV. Recovery, 1617-20
At the age of 64 Coke found himself not only deprived of office but shunned by the king and deserted by his wife. A lesser man might have decided to spend the remainder of his life in quiet retirement. Coke, however, possessed a remarkable capacity for survival. Indeed, in later years he would be compared to a cat: ‘throw him down never so often, he’ll still light upon his legs’.
Coke’s stoutest allies throughout these difficulties were the queen and his Buckinghamshire neighbour Sir Ralph Winwood*, who had been his sole supporter on the Privy Council during the dark days of June 1616. Through Winwood, Coke revived his earlier proposal for a marriage alliance with Buckingham, but this time he offered a dowry of £12,000 where previously he had offered only 10,000 marks.
Although Lady Hatton had been outmanoeuvred, she had no intention of allowing her daughter to marry Sir John Villiers, and claimed that Frances was, in fact, already betrothed to the young earl of Oxford, who was then abroad. However, when she produced a copy of the supposed contract Coke declared it to be a forgery.
It was not until the fall of lord treasurer Suffolk that Coke eventually emerged from the wilderness. For some years Coke had taken an interest in the state of the royal finances, and as Suffolk’s position at Court began to crumble he was appointed to help investigate the corruption in the Exchequer. Following Suffolk’s dismissal in July 1618, he and his fellow commissioners took over the running of the Treasury. Shortly thereafter, Coke was also appointed to a special commission to investigate a riot outside the Spanish ambassador’s house, and instructed by the king to take an active part in its proceedings.
Over the next few years Coke remained a privy councillor without portfolio, while his wife continued to refuse to make a generous settlement for her daughter and her husband.
V. The First Sitting of the 1621 Parliament
In October 1620 the king began to consider summoning another Parliament. The task of laying the necessary groundwork was entrusted to Bacon, now lord chancellor, who was instructed to consult the two chief justices and the former Speakers Sir Ranulphe Crewe and Coke. Bacon initially ignored the order to include Coke, whom he detested but, presumably under pressure, later consulted him about the draft of a royal Proclamation which James intended to issue ahead of the Parliament and included him in the discussion about laying before the Commons ‘some commonwealth laws’. Following the issue of writs of election, Coke and the other members of the parliamentary planning group vainly warned Buckingham that three particular patents of monopolies were likely to give rise to complaints in the Commons and advised him to revoke them before Parliament met.
As Coke was no longer one of the Crown’s law officers or a member of the judiciary he would not again be summoned to serve as a legal assistant in the House of Lords. However, it was far from certain that he would seek re-election to the Commons instead, as there was an unwritten convention, observed since 1559, which barred former Speakers from sitting as ordinary Members.
Although the opening of the new Parliament coincided with his 69th birthday, Coke was in his prime, and on the very first day of business (5 Feb.) he delivered a powerful speech which both stunned and impressed many of his listeners.
Coke’s opening speech was not solely devoted to criticism of royal policy, for buried among his complaints was some sound advice to his colleagues. Many Members wished to petition the king because they were alarmed that the Proclamation which preceded the meeting of Parliament appeared to limit the Commons’ right to free speech. Coke, however, thought this was unnecessary, as it would imply that this privilege was derived from the king, whereas in fact the Commons exercised this freedom by right. He may also have feared that if James was approached his own role in drafting the Proclamation would inevitably be discovered. Coke also advised the Commons to prepare its grievances before considering supply, although the two should ultimately proceed together, ‘for they are like Hippocrates’ twins’. It would then be possible to reflect James’s willingness to redress these grievances in the size of grant the Commons was prepared to make.
Towards the end of his speech, Coke proposed that a standing committee for grievances be appointed. This was agreed, and that afternoon the committee held its first meeting, at which Coke himself was called to the chair. After ‘some seeming unwillingess’, Coke stepped up, whereupon Sir Carew Ralegh objected that it was unprecedented for a privy councillor to serve as chairman of a Commons’ committee. This was perfectly correct, but most Members were now so impressed with Coke that Ralegh was overruled, on the grounds that since all Members were equal it would be improper to discriminate against privy councillors. Coke’s first act as chairman was to propose that the issue of free speech should be resolved before any other matter was considered, following which he repeated his earlier assertion that the recusancy laws were no longer being implemented.
Over the next few days Coke emerged as an indispensable figure in the Commons, which was badly in need of leadership as many of former leaders, among them Nicholas Fuller, Sir Henry Neville I and Sir Roger Owen, were now dead. The ingenuity with which he reinterpreted medieval election law so that it accorded with the preference of most Members was particularly impressive. The occasion for this feat of legal gymnastics was the debate over the Leicestershire election (8-9 Feb.), which resolved around the decision of the sheriff of Leicestershire to exclude Sir George Hastings on the grounds of non-residence. Coke correctly regarded the issue of non-residence as being ‘of the greatest consequence’, as many Members, himself included, represented constituencies in which they were not domiciled. However, ever since 1601, when the question had last been raised, there had been a conspiracy of silence, as many Members feared expulsion if the law were upheld. Coke himself admitted that it was better that constituencies should elect residents, who ‘best know the griefs of the country’, but he challenged the widely held assumption that the law prohibited the return of non-residents and derided the medieval statutes concerned as being ‘not worth 3d.’. The law merely offered guidance as to best practice and clearly implied that non-residence was permissible as any Member who was not resident was required to forfeit his parliamentary wages rather than lose his seat.
By 10 Feb. Coke had ‘won a general applause’ in the Commons where, according to Chamberlain, he was regarded as ‘the prime man of all’.
One of the main reasons for Coke’s rapid emergence as one of the Commons’ leaders was that many of his concerns coincided with those of the House in general. This was particularly true of Chancery reform, a subject which had been pursued without success in the Addled Parliament by Nicholas Fuller, who was now dead. As lord chief justice of King’s Bench, Coke had previously lost a battle over jurisdiction with Chancery, whose procedures were notoriously slow and whose rules owed more to equity than the Common Law. Many Members of the Commons shared Coke’s horror of Chancery, chief among them Edward Alford who, like Coke, rapidly emerged as one of the leaders of the Commons. Alford was outraged that for the past 24 years he had been the defendant in a Chancery case which had still not been resolved, and therefore on 13 Feb. he seconded Coke, who proposed that a bill be drafted to impose a time limit on all suits, a reform which would bring Chancery into line with the Common Law courts. Four days later Coke submitted to the Commons just such a measure which, though criticized by Sir Henry Poole on 25 May as ‘vain and unjust’, subsequently passed through all its Commons stages without serious difficulty.
The slow pace at which Chancery operated was only one of its defects, however, as there were many who complained about the exorbitant fees charged by its officials and its tendency to encroach upon the business of other courts. On 17 Feb. Sir Edward Sackville delivered the findings of the grand committee appointed to investigate the law courts but Coke, like Alford, considered Sackville’s report to be premature as the Commons had only just begun its investigation. Nevertheless, he stressed the importance of keeping Chancery in check, for ‘the overflowing of jurisdictions overthroweth jurisdictions, as a fair stream overflowing marreth the rivers and waters, be they never so fair’. He also called for legislation to prohibit the issue of injunctions by the Court of Wards, and asked to be added to the sub-committee which had been appointed to draft bills to remedy the complaints identified by the grand committee.
On the surface, Coke’s criticisms of Chancery owed much to his longstanding antagonism towards Bacon, whose conduct as lord chancellor came under fierce attack during the session. However, Coke was anxious that his enthusiasm for Chancery reform should not be interpreted as evidence of a personal vendetta. On 26 Mar., for instance, he declared that ‘I speak not because he [Bacon] is in a cloud but according to the liberty of a true subject’, and in the aftermath of Bacon’s fall he announced that he would rather have attacked Chancery when Bacon was at the height of his power ‘than now when he is suppressed’.
Coke derived much of his authority in the House from his chairmanship of the committee for grievances. One of the main tasks of this body, which met twice weekly, was to investigate the many patents of monopoly issued by the Crown in recent years. Although these grants had become an important source of funds for the king, Coke showed little hesitation in spearheading the attack against them. Indeed, on 19 Feb. he described monopolies as being like ‘Hydra’s head’ and assured his listeners that medieval precedents showed that Parliament was entitled to suppress them. A stunned Edward Alford, still not quite able to comprehend that Coke preferred to put the public interest before those of the Crown, replied that this was ‘the first Parliament wherein he ever saw the councillors of state so ready to do the commonwealth service’.
Although eager to hunt down monopolies, Coke was careful to avoid blaming the king for having issued them. When Coke’s committee learned that James had consulted his senior officers before bestowing the grant to licence inns on (Sir) Giles Mompesson*, Coke declared that James was ‘free from all blame in it’, and that ‘no king in Christendom but would have granted it’.
If Coke was unwilling to criticize the king directly, he was equally circumspect when it came to dealing with the interests of the royal favourite, the marquess of Buckingham. At his suggestion the Commons informed Buckingham of its intention to suppress the patents which gave certain individuals the right to build lighthouses, a courtesy which drew thanks from the king. It was also Coke who proposed that a bill be drafted giving Buckingham, as lord admiral, the right to delegate the authority to erect new lighthouses to others.
Coke’s unwillingness to investigate Villiers contrasts with his eagerness to pursue another, less influential Member, Sir Robert Floyd, who exercised a patent giving him the sole right to engross wills. If Floyd’s patent was lawful, Coke announced (21 Mar.), then one might as well require that the services of only one particular scrivener or one particular butcher should be used, ‘which were a miserable servitude’. Those, like Floyd, who thought up new projects with which to line their own pockets and oppress the subject were worthy of being put to death, ‘and yet this man’, he declared, pointing at his hapless victim, was not only alive but sitting among them in Parliament.
One patent more than any other exercised Coke during the first few months of the Parliament. This was the grant to license inns that had been issued to Sir Giles Mompesson. Before the Parliament met Mompesson’s patent had headed the list of those monopolies which Coke and his fellow members of the parliamentary planning group had warned Buckingham were most likely to be attacked. Buckingham, however, had preferred to ignore this advice, presumably because he assumed that Mompesson would be safe as he was his kinsman by marriage. This left Coke with little option but to lead the attack on Mompesson and his grant. His criticism, which avoided fixing any blame on Buckingham, was typically withering. On 27 Feb. he declared that ‘here in this you have such oppression as never was the like’, the patentees having obtained ‘such a multitude of process’ that hundreds of men had been outlawed ‘before they knew of it’. On 7 Mar. he expressed amazement that it should be thought unlawful to keep an inn without a licence. Were licences needed it would be a matter of record, ‘and so be seen, for records never die’.
As well as spearheading the investigation into individual patents, Coke took upon himself the task of tackling the problem of monopolies in general. On 12 Mar. Sir Nathaniel Rich recommended that a bill ‘to cut off monopolies at the root’ be drafted, and advised that the task be assigned to the lawyers Thomas Crewe and William Noye, ‘who have already taken some pains in it’, and Sir John Walter. However, the following morning, before the three lawyers were able to perfect their bill, Coke produced a draft of his own, thereby pre-empting his colleagues. Described by Hakewill as being ‘of the greatest consequence for the good of the subject of any in the House’, the bill declared that anyone exercising monopoly rights would incur the penalties prescribed by Richard II’s statute of praemunire. However, the measure was exceptionally short, for apart from the preamble it consisted of just four clauses, and, as Hakewill observed, failed to cover such matters as imports and exports. Coke replied that the bill owed its brevity to the fact that it had been drafted ‘suddenly, by the commandment of the House’, and urged that it should not be ‘over much clogged’ with additions. This appeal fell on deaf ears, however, for over the next few days various other omissions were identified. It was noticed, for example, that if left unaltered the bill would suppress many municipal charters and overthrow all the London trading Companies. Not surprisingly, therefore, the measure was referred to a sub-committee, which eventually added no less than eight provisos. Coke was rather displeased with these supposed improvements and, after modestly declaring the bill to be ‘excellent’, he announced that he ‘wisheth some of the eight provisos had been out’. However, his colleagues disagreed, and following a final reading on 12 May the bill was sent up to the Lords ‘with a special recommendation’.
The monopolies bill was not the only measure laid before the Commons by Coke during the first few months of the Parliament. On 1 Mar. he presented the House with a bill to prohibit the searching out of lands in private hands which supposedly belonged to the Crown. In order to secure their title, the de facto owners of such properties were forced to compound with so-called ‘concealers’, whose activities were widely resented but licensed by the king. Most Members broadly welcomed this measure, which Coke proceeded to pilot through the House. Attempts to widen the scope of the bill and to alter its content were successfully resisted.
During the first half of March Coke continued to attract the praise of his colleagues. On 9 Mar., as other leading Members of the House were criticized for failing to notify the Lords of the names of those men who had advised the king to pass Mompesson’s patent to license inns, Coke was feted as a hero. ‘Had it not been for Sir Dudley Digges and Sir Edward Coke’, declared Mallory, ‘the business concerning Sir Giles Mompesson at the conference with the Lords had fallen to the ground’, to which Christopher Neville added that Coke’s efforts ‘had not reaped that harvest of praise that he hath deserved’. Six days later Coke was again warmly thanked, this time by the whole Commons, for the consummate manner in which he spoke on behalf of the Commons before Prince Charles and other members of the Upper House. However, by the time Parliament rose for Easter on 27 Mar., Coke had become careless and over confident, producing precedents that were inappropriate or ‘perverted to a wrong sense’. Many of his fellow Members put this down to his great age ‘and want of memory’, which had allegedly failed him so much recently that they were ‘fain to help him in his reports from committees, or in messages to or from the Higher House’. There was also the widespread suspicion that Coke had overloaded himself with too much business.
When the Commons reassembled after Easter, Coke made strenuous efforts to ensure that he continued to be regarded as one of its leaders. On the very first day back (17 Apr.) he laid before the House a bill to revive the use of writs of ad quod damnum. Under Edward I, he announced, no new patents were ever drawn up until these writs had first been issued, as they allowed the king to discover whether any harm would be inflicted by the intended grant. Assuring his listeners that ‘it will be as great an honour to this House to restore things to their former course as to create new laws’, he added that any recipient of a grant who failed to issue such a writ in future should not only forfeit his patent but pay a fine of £500. However, although Coke’s bill was accorded the courtesy of an immediate first reading, it excited little interest. One of its main targets, as Coke himself admitted, was monopoly grants, and as these were already the subject of a separate bill this new legislation must have seemed rather superfluous. Consequently the bill did not receive a second reading until November, and the bill committee was so poorly attended that the House was subsequently obliged to widen its membership and assign a new day for it to meet.
Despite the lack of interest in the ad quod damnum bill, Coke was soon in the driving seat again. On 18 Apr. the Commons turned its attention to the ecclesiastical judge, Sir John Bennet*, who stood accused of bribery. Coke declared that corrupt judges were ‘the greatest grievance’, and over the course of the new few days he encouraged his colleagues to pursue Bennet, whom he disavowed. On 23 Apr. he was instructed to help draft the warrant ordering Bennet to be placed under house arrest, and the next day, at the suggestion of Sir Edward Sackville, he presented at a joint conference with the Lords various precedents that he had unearthed which showed that the Commons had traditionally punished corrupt judges.
On 26 Apr. the Commons was alerted by Sir John Jephson to widespread corruption in Ireland. Coke was alarmed at this news, as Ireland was ‘the back door’ through which a foreign power might invade. Provided that Ireland was secure, the Navy well rigged and the Low Countries in alliance with England, ‘I care not for Pope, Turk or devils’. Coke reassured his colleagues that it was ‘fit and lawful for us to complain of Ireland’, adding that were corruption in Ireland to be stamped out it would save the English Exchequer £20,000 every year. During the course of this speech Coke requested deferral of further debate over the state of Ireland as he intended to be absent for three or four days,
Coke’s determination to defend and revive the authority of the Commons explains why he was keen to assert the House’s right to exercise judicial powers in the case of the Catholic barrister Edward Floyd, who had disparaged the king’s daughter Elizabeth, and her husband the Elector Palatine. However, this right was challenged by the king, who ordered the Commons on 2 May to stay its proceedings against Floyd. James applauded the enthusiasm with which the Commons defended the honour of his daughter and son-in-law, but he questioned whether it was entitled to pass judgment on Floyd, for lacking the power to administer an oath to witnesses in the case it was incapable of acting as a court. Judicial authority in Parliament lay not with the Commons but with the Lords. Coke was incensed at this royal interference, and retorted that ‘he that thinks we have no judicature speaks ignorantly’. The House exercised judicial power whenever it expelled one of its own Members, and the recent punishment inflicted on the monopolist Francis Michell demonstrated that it might also sit in judgment on outsiders. It was true that under Henry IV the Commons had requested that it should not be called upon to exercise a judicial function, but its wish had been granted in the form of an ordinance rather than a statute, ‘and no liberty can be taken away from either House but by Act of Parliament’. The claim that the Commons was incapable of administering an oath was equally false, as it implied that the House was not a court of record, in which case ‘all power and liberty of this House’ would be overthrown. In fact, argued Coke, the House’s status as a court of record was clear because the Speaker was entitled to issue writs to Chancery requiring the holding of by-elections.
During the attempt to patch up the quarrel with the Lords over Floyd, Coke fell out with the master of the Wards, Sir Lionel Cranfield, who complained that he had exceeded his brief by conceding too much ground to the Lords. Although Cranfield’s claim was confirmed by Sir Henry Poole, the House was unwilling to censure Coke. Indeed, Sir Edwin Sandys, who had himself clashed with Cranfield a few days earlier, described Coke’s failure as ‘a mere mistaking’. However, Cranfield was also outraged that, at a meeting with the peers, Coke had pointed towards him and announced that ‘there was the spirit of contradiction amongst our committee’ and that ‘he who should seek to sow sedition in the House was not worthy of his head’. In reply Coke protested, somewhat feebly, that he had spoken only generally and had ‘meant not the master of the Wards’. As the Commons was unwilling to pursue the matter further, Cranfield declared himself satisfied with Coke’s explanation. However, it would soon become apparent that Coke, like Sandys, had now made a powerful enemy.
On 28 May the king announced that Parliament would be adjourned for the summer in one week’s time. Like most of his colleagues, Coke was alarmed that, apart from voting two subsidies, the Commons had so far accomplished little to show for all its labours. As it was impossible to complete all the outstanding legislation within the time remaining, he suggested, the Commons should present its grievances to the king in the form of a petition, ‘that we may have somewhat to refresh the country withall’.
Although Coke played a significant role in the adjournment debate, the latter was actually dominated by a series of furious exchanges between Cranfield and Sir Edwin Sandys. Cranfield was convinced that Sandys and his allies were trying to sabotage the Parliament, while Sandys and Sir Edward Cecil were equally convinced that Cranfield was guilty of misrepresenting the Commons’ proceedings to the king. Coke seems to have tried to avoid becoming drawn into this dispute, but his earlier quarrel with Cranfield had not been forgotten and he had somewhat rashly accused James of breaking faith by not allowing Parliament to sit until Midsummer. On 31 May Cecil complained that ‘those things that may be cavilled at in Lord Coke’s speeches are told the king with aggravation’ whereas ‘the good service he doth him is concealed’.
Coke had good reason to be concerned, for shortly after the adjournment he was again removed from the Privy Council. To make matters worse there was also talk of placing him under house arrest,
VI. The Winter Sitting of the 1621 Parliament
When Parliament reconvened in November, Coke quickly moved to reassert his authority. On the first day of business (20 Nov.) he urged the Commons to begin where it had left off. In order to make rapid progress and avoid repeating the mistakes of the previous sitting, he suggested that those bills which had already been engrossed should be given priority, to be followed by those that remained at the committee stage. He also advised setting aside just one day per week for private bills, leaving the rest of the week for public business. However, only the second of these sensible proposals was adopted.
On 23 Nov. Coke supported a bill to allow ministers to take leases and defended another directed at scandalous clergy. Sir Dudley Digges claimed that this latter measure was needless, but Coke rejoined that it was impossible to remove a minister who later proved to be a drunkard. If anything, the bill needed to be extended so that it punished patrons who presented ministers known to be scandalous.
Many of the plot’s details initially remained unknown to the Commons, although it was clear from the outset that Lepton and Goldsmith were primarily motivated by revenge. Phelips was appalled that Coke, whose ‘ability and willingness to do this House and his country service’ was ‘inferior to none’, had been targeted in this way. Unless the conspirators were punished, he observed, few Members would be prepared to pursue monopolists in future. At his behest an investigative committee was established and orders were given to arrest Lepton and Goldsmith, whose studies were also to be searched.
While the investigating committee carried out its work, attention switched to foreign policy. The lands of the king’s son-in-law, the Elector Palatine, had largely been overrun by the armies of Spain and Bavaria, and a recent attempt to persuade the emperor to negotiate a peaceful settlement had failed. The king, anxious to save what remained of the Lower Palatinate, had summoned Parliament in order to seek its advice and obtain additional supply, which would be needed to pay for a war with Spain. On 27 Nov. Coke and his fellow Members turned their attention to these important questions. In a speech which has been described as the most savagely anti-Spanish of his career,
The following day Coke took the chair of the grand committee for religion after Digges and Sir Samuel Sandys declined to do so. After proposing that Catholics should pay double subsidy, he also suggested that anyone who failed to attend communion should be accounted a recusant for the purposes of taxation.
By the beginning of December attention had once more switched to Spain. Like many of his colleagues, Coke was astonished that the king was threatening war with Spain while simultaneously negotiating a Spanish marriage for Prince Charles.
Discussion of the Spanish Match was not the only subject debated by the Commons which had aroused the king’s anger. Doubtless with the encouragement of Lepton, who had escaped arrest, James protested that the investigation into Goldsmith was an intolerable interference in a judicial matter. Twice in early December he ordered the Commons to cease its proceedings unless it could be shown that Goldsmith had wronged the House. Coke was outraged and, claiming that James had been misinformed, urged the Commons to suspend all business ‘until the king should be pleased to take the cloud from us’ (7 December). This was not yet necessary, however, as Members were agreed that Goldsmith’s lawsuit was only of interest insofar as it undermined the House’s proceedings against monopolists. Far from causing the Commons to cease its investigation, James’s interference served merely to persuade the House to redouble its efforts. Consequently, by mid-December Members had learned that the conspiracy against Coke had been countenanced by several leading courtiers, among them Bacon.
By now the session was approaching its climax. Following the king’s attempt to prevent any further debate of matters of state, the Commons protested that ‘Your Majesty doth seem to abridge us of the ancient liberty of Parliament for freedom of speech ... being our ancient and undoubted right and an inheritance received from our ancestors’. James was furious, for in his eyes all privileges enjoyed by Parliament flowed directly from the king. On 16 Dec. he retorted that ‘we cannot, with patience, endure our subjects to use such anti-monarchical words to us concerning their liberties’, which had been ‘granted unto them by the grace and favour of our predecessors’.
VII. Arrest and Imprisonment, 1622
Even before the Protestation was drafted James resolved to punish Coke for his audacity. Indeed, the attorney-general was ordered to explore the possibility of taking over the intended Star Chamber prosecution of Coke by Lepton and Goldsmith.
James was initially determined to charge Coke with treason for having sown discord between himself and his people. Coke was reminded of having once remarked that ‘he that should go about to withdraw the subjects’ hearts from their king was a traitor’. Coke did not deny having uttered these words, nor did he now claim that he had been wrong, but instead he pointed out to his interrogators that it was equally true that ‘he that went about to withdraw the king’s heart from his subjects’ was ‘an arch-traitor’.
Although now acquitted, Coke was not freed until 8 Aug. 1622.
Coke’s release ostensibly formed part of the celebrations to mark the anniversary of the Gowrie conspiracy, as did the freeing of Phelips and Mallory, who had also been incarcerated after the 1621 Parliament.
VIII. The 1624 Parliament
Coke apparently attended the opening of the new Parliament on 19 Feb. 1624, as he reportedly corrected his fellow Members on a matter of procedure.
Coke approached the new Parliament with a sense of trepidation. Following the dissolution of the 1621 Parliament the king had declared that he would never summon another Parliament,
If Coke’s advice on dissolving parliaments was not entirely welcome, his views in respect of petitions were certainly unpopular. During a meeting of the grand committee on the courts of justice on 25 Feb., it was suggested that a sub-committee should be appointed to whittle down the number of petitions handled by the full committee ‘to avoid expense of time’. Coke, however, pointed out that although medieval parliaments had certainly employed a similar system of receivers and triers of petitions, this practice had led to accusations of partisan behaviour.
As chairman of the committee for grievances Coke was perhaps almost as busy in investigating objectionable patents of monopoly as he had been in 1621, and over the course of the Parliament he reported from the committee to the House on at least 20 occasions. More than once he expressed incredulity at the monopolies that had been granted. On 13 Mar., for instance, he declared in respect of the patent for surveying seacoal that he ‘never before knew an imposition on fire or water’, and on 3 May he condemned the Newfoundland fishing patent as ‘a monopoly upon the sea which [was] wont to be free’.
One of Coke’s main aims in 1624 was to ensure that the three key pieces of legislation which had failed to reach the statute book in 1621 - the monopolies, concealments and informers bills - were finally enacted. Perhaps the most important of these measures was the monopolies bill, which Coke himself had drafted. Although it was John Glanville who reported the bill on 13 Mar., it was Coke who took the lead in defending it before the Lords.
Although Coke spearheaded the campaign to enact the monopolies, concealments and informers bill, this was by no means the extent of his legislative activity. In March he reported a bill to aid the king’s tenants and was entrusted with the depopulations and alienations bills, reporting the latter on the 13th.
During the course of the Parliament Coke’s old antagonism towards Chancery resurfaced. On 26 Apr., following a report by Carvile of the bill to reverse erroneous judgments made by the courts of equity, he reminded his colleagues that Chancery was merely the ‘younger brother’ of King’s Bench. Five days later he declared that it was a maxim of the Common Law that no statute was capable of being overruled by a decree in Chancery. Consequently, if Members failed to pass the Magdalene College bill, which sought to overturn a Chancery ruling that contravened statute law, ‘it will encourage other judges to make the like decree’.
One of the main aims of the 1624 Parliament was to persuade the king to break off the Spanish marriage negotiations and declare war on Spain. Coke had previously exhibited considerable hostility towards Spain but had been reluctant to vote war funds until the Commons had first received satisfaction for its grievances. However, these reservations had now vanished entirely. On 11 Mar. he declared that ‘England never prospered so well as when [there was] war with Spain’ and argued that military action was now the only course left open to them as there was ‘no process of law to recover the Palatinate’.
As in 1621, Coke was keen that recusants should pay double the amount of subsidy since they were not barred from holding local office and were therefore exempt from the costs this incurred.
During the latter stages of the Parliament Coke was upbraided by Prince Charles for pressing a matter in the Commons that would have reduced the king’s annual income by £3,000.
IX. The 1625 Parliament
Following the accession of Charles I a fresh Parliament was summoned. In mid-April Coke, who still owned an extensive estate in East Anglia, was chosen senior knight of the shire for Norfolk after a contested election. However, Coke appears to have been concerned that one of the three defeated candidates would challenge the validity of his election, especially as only one of them subsequently managed to find a seat, for on 25 Apr. he sent a speculative letter to the corporation of Scarborough requesting a burgess-ship.
Coke may have arrived late for the opening of the 1625 Parliament, which met in the midst of a severe plague epidemic, as he played no recorded part on the first day of business (21 June).
One of the chief purposes of the new Parliament, so far as the king was concerned, was to provide substantial additional funds for the war with Spain. However, few Members, Coke included, were willing to dig deeply into their pockets as they had already voted around £300,000 in 1624. One way to satisfy the king’s demand for more money without overburdening the taxpayer was to improve the royal finances. On 22 June, after Phelips complained that the Crown’s revenues were ‘so wasted’ that they were ‘unable to support public charges’, Coke suggested that Parliament draw up a new book of rates, a proposal which may have been designed to increase rather than diminish the king’s revenue.
The state of the royal finances was not the only issue which occupied Coke during the 1625 Parliament. Another major concern was religion. On 23 June he laid before the House two bills, one ‘to quiet the estates of ecclesiastical persons’ and the other ‘to mitigate the sentence of excommunication’. Both measures rapidly received two readings and were committed.
As well as the alarming increase in home-grown Catholicism, Coke was troubled by evidence of growing anti-Calvinism in the Anglican church. In 1624 he had headed the Commons’ investigation into the complaints against Samuel Harsnett, the Arminian bishop of Norwich,
When Parliament reassembled at Oxford at the beginning of August, debate quickly turned once more to Montagu. Like many Members, Coke was furious that Montagu was now being shielded by the king, and on 1 Aug. declared that one of Montagu’s books was one of the most dangerous he had ever seen. The next day he insisted that the Commons had the right to punish Montagu for the contempt shown towards the Commons. He also argued that, as Members were ‘the general inquisitors’ of the kingdom, they were entitled to investigate Montagu’s doctrinal opinions. Though the Commons was not qualified to pass judgment on theological matters itself, he nevertheless claimed that the Lords were able to do so, as its members included the bishops. No-one in the kingdom was beyond the reach of Parliament, he added, for in 1376 even the king’s son, John of Gaunt, had been questioned.
By referring to John of Gaunt, Coke may have been hinting that the House could take action against Buckingham as well as Montagu, since the duke’s role as the king’s chief minister was closely analagous to that of Gaunt’s. It was well known that Buckingham favoured Montagu, and that both the duke and members of his family were gradually coming under the influence of the Arminians.
It was not only Buckingham that Coke now had in his sights. Back in June Coke, like Phelips, had opposed supply on the grounds that if the royal finances had been well managed the king would not need to burden the subject. In the event, the Commons had agreed to grant two subsidies over and above those voted in 1624. In Coke’s eyes this was more than generous, but on 8 July, and again on 4 Aug., the Crown demanded yet more money. Coke was astonished. ‘Cannot the king as well live off his revenue as his ancestors?’ he demanded. The answer, he declared, was that he could, but only if the royal finances were reformed. This could be achieved by eliminating fraud, excessive annuities and unnecessary branches of royal administration, such as the Councils in the Marches and the North, and also by raising rents, bringing waste land into use and reforming the royal Household, which in recent years had been staffed by former ‘shopkeepers’ like Cranfield and Sir Simon Harvey. Moreover, Ireland, which under Edward III had yielded £30,000 to the English Crown, should be made profitable rather than continue to act as a drain on the Exchequer. It was dishonest to claim that more subsidies were urgently needed, he added, for ‘we have no invasions, no eighty-eights’. If the people were overburdened with taxes, he warned, they might rebel, as they had done in 1381 and 1489.
Coke’s speech has fairly been described as ‘one of the most powerful and sweeping condemnations of Court policy’ made that Parliament.
The 1625 Parliament was abruptly dissolved on 12 Aug. without having voted any additional supply. Initially Coke may have hoped that his opposition to supply and his criticism of Buckingham would be forgiven in the light of his publicly expressed offer to donate £1,000 to the war effort. This offer may have been sincere, for on 6 Sept. Coke’s brother-in-law, Sir Edward Cecil, pressed Buckingham to accept it, and to use the payment as the basis for raising money more widely by privy seal.
X. The 1628 Session
Coke did not get another opportunity to stand for Parliament until February 1628, when he was returned for both Buckinghamshire and Suffolk. This was an extraordinary feat, and one of which Coke himself was rather proud, for although it was not unusual for men to be chosen by more than one constituency it was extremely rare to be elected for more than one county.
Soon after the Parliament opened Coke was reappointed as chairman of the committee for grievances.
Although Coke attached little importance to medieval election law, he was not indifferent to the composition of the Commons. On learning that some of Cornwall’s deputy lieutenants had attempted to prevent William Coryton from standing, he declared (24 Mar.) that it was essential ‘to have men of gravity’ in the Commons, and accused the deputy lieutenants concerned of striking at the House in general as well as Coryton in particular.
Throughout the session Coke remained as anxious about the state of religion as he had been in earlier parliaments. His principal concern was the continued growth of Catholicism in England. In former assemblies he had worried that the laws against recusants were not being implemented, but now he considered matters to be even more serious. The source of his anxiety was the commission which authorized Sir John Savile* to compound with recusants in order to raise badly needed additional funds for the war effort. On 24 Mar. Coke condemned this commission as unlawful and declared it to be ‘a toleration’. Ten weeks later, on 6 June, he ‘confidently’ repeated the charge that Savile’s commission was ‘for toleration of religion’ and observed that ‘Queen Elizabeth would never have consented to the like’. As in 1621, he impressed upon his listeners the dangers of a fifth column, saying that he feared ‘no invasion if there be not a party within’.
Although the parlous state of the church and the rising threat of Catholicism greatly concerned Coke, these were not his main priorities in 1628. One of the main purposes of the session, from the point of view of the Crown, was to vote money to pay for the wars with France and Spain. In 1625 Coke had obstructed the Crown’s request for additional supply, but now he could scarcely have been more helpful. When the Commons was presented with a list of the government’s proposed military expenditure on 26 Mar. Coke, far from raising difficulties, merely asked to know the size of the arrears owed by the king.
Coke’s enthusiasm for subsidies was remarkable, but it did not signify that he had suddenly become a spokesman for the Crown, as he emerged from the 1628 session as one of the Caroline regime’s fiercest critics. Instead, it suggests that he appreciated that the best way to keep the Parliament in being was to offer the king a substantial grant of money. It also suggests that Coke was desperate to avoid a repetition of the events of the last 18 months, during which time the king, denied a grant of subsidies by the 1626 Parliament, had raised a Forced Loan. Coke was bitterly opposed to the Loan which, despite its name, was a compulsory levy, and had refused to contribute to its collection. The Loan made a mockery of the principle that taxes should only be given in Parliament, for as he put it on 22 Mar., ‘who will give subsidies if the king may impose what he will, and if after a Parliament the king may enhance what he pleaseth?’ The principle that taxes were only to be granted in Parliament was not simply an accepted convention but was enshrined in law, for by an Act of 1352, which Coke described as ‘worthy to be writ in letters of gold’, the king was expressly forbidden to raise loans against the wishes of his subjects, as this would infringe their liberties and turn them into slaves. These liberties were protected by Magna Carta, and by an Act of 1370, which declared that all laws contrary to Magna Carta were void. It was useless, Coke added, for the Crown to plead that it had resorted to the Loan out of urgent necessity, for if Parliament met every year, as it was legally required to do, there would never be a time when the king could not turn to his subjects for aid. Nevertheless, Coke recognized that, no matter how much he protested, he could not turn back the clock. Either the king had to be granted parliamentary authority for the Loan retrospectively, or a dangerous precedent would be set. Consequently, he suggested that the Loan be accorded statutory authority in the preamble to the subsidy bill. However, to prevent the Crown from demanding any more loans in future, he also produced a bill which he himself had drafted and which he modestly described as ‘admirable’.
One of the most objectionable features of the Forced Loan was the imprisonment without charge of many of those who refused to pay it, and the inability of those arrested to persuade the judges to order their release. In November 1627 five Loan refusers attempted to establish the reason for their arrest by suing out writs of habeas corpus, but the judges in the case had subsequently refused to pass judgment and remanded the prisoners to custody after they were informed by the Privy Council that the arrests had been ordered by special command of the king. Coke was appalled at this development, though not altogether surprised, as he himself had been held without cause shown in 1622. If suing out a writ of habeas corpus no longer automatically guaranteed a proper trial a man might languish in prison indefinitely. After declaring that ‘nothing is more precious to a man in this life than liberty’, he therefore presented the Commons on 21 Mar. with a bill which required that no man be detained for more than two months without either being tried or bailed. Drafted by Coke himself, this measure, which was immediately given a first reading, further stated that in the event that any man was held for three months without trial he should be released and cleared of all charges.
Coke had not always condemned arbitrary imprisonment. As chief justice of King’s Bench, and as a privy councillor, he had earlier maintained that the Crown was entitled to imprison without disclosing the cause on the grounds that it was necessary to preserve secrecy in matters of state. As late as 5 May 1621, when the Commons had last debated this issue, he had announced that ‘one committed by the body of the Council [is] not bailable by law’.
Although the Commons was now happy to set aside Coke’s earlier pronouncements on arbitrary imprisonment, the attorney-general, Sir Robert Heath*, clung to the hope that he might still be able to exploit these remarks. At a conference between the Lords and Commons on 17 Apr., he drew attention to another case from 1616 in which Coke and his fellow judges had ruled that a prisoner committed by the king or Council could not be bailed. He also brandished Coke’s statement of 5 May 1621, which had been recorded in the Commons Journal. Heath was supported by (Sir) Francis Ashley*, who declared that if the king were deprived of the right to imprison without showing cause the state would tend to anarchy rather than monarchy. After the Crown’s spokesmen had finished, Coke rose to speak for the Commons. Arbitary imprisonment, he declared to the assembled peers, ‘was the greatest cause ... that ever came in the Hall of Westminster, or indeed, in any Parliament’, for it struck at both Magna Carta, which had been drafted by the Lords’ own ancestors, and six other statutes concerned with the liberty of the subject. He went on: ‘Put, therefore, my noble lords, in the one balance seven Acts of Parliament, records, precedents, reasons - all that we speak ... and in God’s name put into the other balance what Mr. Attorney said, his wit, learning and great endowments of nature’.
Over the next few weeks Coke kept up the pressure. On 25 Apr. he defended a Londoner who had been imprisoned for refusing to pay £50 towards the £60,000 raised by the City to buy various royal lands. ‘To compel a man to lend money to purchase land’, he declared, ‘is altogether unlawful’. Four days later he announced that if the king’s right to imprison without showing cause was allowed to stand the subject would be ‘made worse than a villein’. Moreover, as his own experience in 1622 demonstrated, imprisonment without cause shown could result in interrogation designed to discover some hitherto unsuspected offence.
At the same time that he complained of arbitrary imprisonment, Coke also protested at the widespread billeting of troops. Declaring that it was ‘against the law to place anyone in an inn to stay’, he suggested (8 Apr.) that the king be petitioned to remove the troops ‘to Denmark or elsewhere’ and hinted that the subsidy bill might be delayed until satisfaction was received.
The debates over martial law, billeting, arbitrary imprisonment and the Forced Loan occupied most of the first five weeks of the session. On 25 Apr. the king, desperate to press on with the subsidy bill, promised to uphold Magna Carta and the six statutes, and to confirm all the rights and liberties of his subjects in as full a manner as ‘the best of his noble progenitors’. He also swore to govern in accordance with the Common Law ‘in all cases within the cognizance of the Common Law’, and offered to declare that, according to Magna Carta and the six statutes, ‘every free subject has a fundamental propriety in his goods and a fundamental liberty in his person’. Where reason of state made it necessary to imprison a man, he added, he would reveal the cause of the commitment ‘within a convenient time’ and allow the case to go to trial.
Far from ending the debate on the liberties of the subject, Charles’s intervention served to focus the Commons’ attention on the need for a single solution to its many difficulties. On 28 Apr. a sub-committee of the Whole House, consisting mainly of lawyers, was appointed to draft a bill summarizing the contents of Magna Carta and the six statutes and also the recent resolutions of the House. Coke probably chaired this sub-committee himself, as he reported its proceedings the following day, when he explained that he and his colleagues had been careful in drafting the bill to avoid apportioning blame for the abuses they were seeking to rectify.
The Commons was now on the horns of a dilemma, as it would not accept a bill that failed to explain the law while Charles would not accept a bill that did. It was not until 6 May that a solution to this apparent impasse was suggested. Rather than proceed by bill, declared Edward Alford, the Commons should draft a Petition of Right in which it would set out the meaning of existing law. This ingenious suggestion was worthy of Coke himself, for Coke was certainly familiar with the medieval practice of presenting such petitions, and had employed the phrase ‘petition of right’ in debate as recently as 26 April. It may be, of course, that Coke had quietly suggested the idea of proceeding by Petition to his former ally Alford, but it seems unlikely that the two men were then in close communication, as a significant difference between them surfaced during the debate. Alford wanted the king’s answer to the Petition to be inserted in the preamble to the subsidy bill. This would confer statutory authority on the king’s answer without the need for separate legislation, to which Charles would not agree. Coke, however, dissented, saying ‘did you ever know the king’s messages come into a bill of subsidies?’
The idea of proceeding by Petition of Right rapidly seized the imagination of the Commons, which set to work immediately. On 8 May Coke presented a draft text to the Lords at a conference between both Houses. Several changes were suggested by the peers, but Coke was unhappy with most of them, and on 19 May he led a further delegation to confer with the Lords. One of the key sticking points was the phrase ‘unlawful oath’, which the Lords wished to change to ‘new and unusual oath’ on the grounds that ‘unlawful’ was ‘too smart a word’. ‘My lords’, Coke patiently explained, ‘the reason why the House of Commons called that oath unlawful was principally because the subject of it was unlawful’. Besides, the Lords’ own alternative wording was absurd, as many unusual oaths were perfectly lawful. Coke also took issue with the Lords over their rewording of the passage in the Petition which concerned commissions of martial law. The Commons had said that any such commissions issued during peacetime - meaning whenever the ordinary courts of law were still sitting - were unlawful, whereas the Lords had added a caveat that they could still be used if their scope was limited to soldiers and sailors. The Commons could not possibly agree to this proviso, protested Coke, as it would ‘overthrow the whole scope and intention of our Petition in the point complained of’. This failed to convince lord keeper Coventry, however, who pointed out that if the Crown was required to observe the processes of the Common Law in the case of mutiny it might mean that an army disintegrated before the mutineers could be indicted and a jury empanelled. Moreover, what would happen in cases of rebellion? ‘If you stay for an attainder’, warned Coventry, ‘all is lost’. Coke, however, was unmoved by any of these objections, and answered that in the case of rebellion, anyone not slain in the field should be tried by the Common Law.
One final hurdle remained to be overcome before the Lords would accept the wording of the Petition. On 17 May the peers, under pressure from the king to preserve his right to bypass the law under certain circumstances, proposed that a clause be added in which the petitioners pledged to ‘leave entire that sovereign power wherewith Your Majesty is trusted for the protection, safety and happiness of your people’. Coke was incensed at the proposed addition, for as he announced on 20 May, its inclusion ‘will overthrow our whole Petition’. Neither Acts of Parliament in general nor Magna Carta in particular were subject to any higher sovereign power. Were they to concede that such a power existed it would ‘weaken the foundations of law’ itself. At the very least, it would mean that any laws on arbitrary taxation, arbitrary imprisonment, martial law and billeting of troops that Parliament cared to pass could easily be set aside.
After such a long and gruelling battle, Coke was not surprisingly ecstatic. ‘I am almost dead for joy’, he announced.
As well as threatening to proceed against Buckingham, the Commons also turned to the Lords. On the morning of 7 June Coke led a delegation to the Upper House with the aim of persuading the peers to ask the king to give a clear and satisfactory answer to the Petition of Right. This overture bore fruit, for that afternoon Charles gave the expected reply. Instantly the mood in the Commons altered from anger to jubilation. ‘We could never have had a better answer’, announced Coke, for there was now ‘no doubtfulness nor shadow of any ambiguity’. He was so relieved that, after attempting without success to pronounce the royal words of assent in their original form, he broke off to poke fun at himself and his fellow lawyers in the House: ‘Laugh not at my French, gentlemen, for I have gotten as much by it as some of you’.
Although the Commons had now persuaded the king to accept the Petition of Right, it had no intention of abandoning its attack on Buckingham. On 11 June Coke, declaring that he spoke ‘not out of malice but out of duty’, and complaining that the duke had monopolized many great offices and was a poor adviser to the king, claimed that ‘necessity forces us to name him’. This was a rather pointed reference to the fact that during the earlier debates over the Forced Loan and arbitrary imprisonment the Crown’s spokesmen had frequently pleaded necessity themselves. Shortly after Coke had finished the Commons resolved that the excessive power wielded by Buckingham was chiefly responsible for the evils and dangers that had befallen the kingdom. Coke was extremely satisfied with this declaration, and announced that ‘I am confident the kingdom will never be well governed till men of more ability have his places’. A few days later he advised that no further material be added to the Remonstrance as ‘there is enough already’.
The arguments that culminated in the Petition of Right dominated the 1628 session so thoroughly that, aside from attacking Buckingham, there was little time left in which to debate other urgent matters. Few issues were more pressing to Coke than the state of the royal finances. In 1625 he had proposed that superfluous expenditure be cut, but his advice had been disregarded. Now, on 21 June, he repeated this demand, calling for the Wardrobe and Stables to be ‘reduced to the ancient orders’ and for the abolition of both the duchy of Lancaster and the Council in the North, which ‘does infinite wrong’, in order to save administrative costs. Pensions, too, should be suspended until the king was out of debt, and all new offices should be revoked.
The fate of the Tunnage and Poundage bill indicates that, broadly speaking, Coke had little time to devote to legislation in 1628. Nevertheless, as already mentioned, there were some measures in which he took a special interest, most notably the subsidy bill and several bills concerned with the church. Among the other items of legislation which caught his eye were the Medway navigation bill, which he described on 12 May as ‘dangerous’ as it gave power to the local sewer commissioner to ‘tax any man in England’. He also took an interest in the bill to remove the four English border counties from the jurisdiction of the Council in the Marches. After calling for the bill to be read, he repeated his longstanding call for the abolition of the Council itself.
XI. Final Years, 1629-34
Towards the end of the 1628 session Coke, knowing that his outspoken attack on Buckingham must have angered the king, feared that he would again be arrested.
In May 1632 Coke fell from his horse while riding near Stoke Poges, but despite the fact that he was now 80 years old he escaped uninjured.
Following his death, Coke’s chambers in the Inner Temple were searched and his remaining books and papers seized. Items of a personal or private nature were subsequently returned to Sir Robert Coke, but anything considered useful to the state was withheld.