Coke v. Bacon

‘That wonderful Edward Coke,’ wrote the great Maitland, ‘masterful, masterless man.’ Others prefer the judgment of the Australian judge and historian James Spigelman: Coke’s mind ‘was so narrow and unsubtle, so incapable of jettisoning detail, so often inconsistent, that no one has ever speculated that he wrote the works of Shakespeare’. That perverse distinction has of course been conferred on Coke’s would-be nemesis, Francis Bacon, of whom the historian A.L. Morton wrote in The English Utopia:

There is perhaps no great English writer whose personality is less attractive than Bacon’s, and all the elaborate apologias of his many admirers and the power and magnificence of his prose only increase the distaste we feel in the presence of the man. Never was such a subtle and splendid intellect employed to serve meaner or more trivial ends, and neither pride nor gratitude nor loyalty to friends were allowed to brake his climb to wealth and influence.

Edward Coke (pronounced ‘Cook’) was born in 1552 into a family of minor Norfolk gentry. He prospered as a barrister under the patronage of William Cecil, Lord Burghley, became an MP and by 1593 had been elected speaker of the House of Commons. Within two years he had become Elizabeth’s solicitor general and then her attorney general, a post in which he achieved celebrity as a foul-tempered prosecutor, first of the Earl of Essex, then of Sir Walter Raleigh (‘Thou viper … thou hast an English face but a Spanish heart!’) and of the Gunpowder plotters. With the help of his second marriage, to Burghley’s granddaughter Elizabeth, the widow of Sir William Hatton, he also became extremely wealthy. The marriage had the added benefit of dealing a blow to Bacon’s matrimonial aspirations. In 1606 James I made Coke chief justice of the court of common pleas. In 1613, at Bacon’s urging, James moved him, against his will, to the court of King’s Bench. Although Coke was called lord chief justice, the post carried no peerage and he was never ennobled. This enabled him, when the king finally dismissed him from judicial office in 1616, to return to the Commons as an MP and to play a significant part in the political turmoil that would eventually erupt in civil war. He died, feared and disliked, but esteemed both as a scholar and as the spokesman of common law liberty, in 1634.

Coke was by most accounts a thoroughly unpleasant man, a bully and a domestic tyrant; in Macaulay’s view, he was a ‘pedant, bigot and brute’, but – and this is perhaps the reason he made history – ‘an exception to the maxim … that those who trample on the helpless are disposed to cringe to the powerful’. If Macaulay was thinking of the tenacity with which Coke repeatedly faced down royal claims to be the ultimate source of English law, the concession was unnecessarily generous: Coke could cringe lavishly when he had to. When his insistence that it was for the judges, not the king, to determine the content of the common law provoked James into raising his fist (at least according to a bystander), he fell on all fours to beg for mercy.

Bacon, nine years Coke’s junior, was the younger son of Elizabeth’s lord keeper, nephew of her chief minister, and protected by the patronage of Burghley and Essex until he found it advantageous to join in prosecuting the latter. Bacon too entered Parliament. In 1607 he became solicitor general and in 1613 attorney general. In 1618 he was given the peerage he had always coveted, with the title Baron Verulam, and was made lord chancellor. By then, as Jesse Norman recounts it, Bacon had trapped Coke into insisting, to the king’s face, that the monarch was not entitled to special consideration in litigation. Coke had consequently lost his job, while Bacon, comfortably installed on the woolsack, was now wealthy (chiefly through his marriage, at the age of 45, to 14-year-old Alice Barnham) and free to devote himself to writing. He had reached the top of the winding stair of favour, influence and sycophancy. Coke, however, was far from done.

Jesse Norman, a two-year fellow of All Souls as well as a junior minister, is an experienced biographer (he has done Adam Smith and Edmund Burke), but has set out here to write a novel, not a double biography. He is interested in the points at which the trajectories of these two intelligent and vain careerists intersected. One occurred in 1616, in what became known as the Case of Commendams. As head of the established church, James wrote to all the judges of the King’s Bench demanding that they halt a case concerning clerical incomes while he considered enforcing some form of consultation between the judges and the bishops. The pot was characteristically stirred by Bacon, who issued a writ requiring that the king be consulted in any case touching his interests. Coke and his judges replied boldly that such a procedure was unlawful. The king in a rage summoned them before the privy council, tore up their reply and demanded that each judge undertake to obey any future royal command. All but Coke complied, with Coke insisting that it must depend on the particular case. James put him on what amounted to probation, but although Coke finally agreed to the king’s demand, it was too late: to Bacon’s satisfaction, James removed him from judicial office.

The whirligig had not stopped turning. As lord chancellor, Bacon had cases to try. He appears to have been a conscientious judge, but the lure of gifts from litigants proved irresistible. In 1621 a Commons committee, with Coke at its elbow, sent accusations of Bacon’s corruption to the Lords, where committees chaired by two of Bacon’s enemies, the earls of Suffolk and Southampton, were reminded by Coke that in an earlier era three judges had been hanged for taking bribes. Bacon (now Viscount St Alban) admitted guilt and threw himself on the king’s mercy, pleading among other things that he had found against litigants who had paid him. It didn’t matter greatly that he was released from the Tower after a few days, and that his fine was returned to him in trust. Coke had turned the tables and Bacon’s standing was in ruins, though in the time that remained to him he led an arcadian existence on his Gorhambury estate near St Albans, adding to his output of poems (at least one of which, ‘The world’s a bubble’, has become an anthology piece) and dying heavily in debt.

Norman’s acknowledgments include thanks for access to Coke’s private library at Holkham and the Cecil archives at Hatfield. His deftly handled present-tense narrative sometimes makes it hard to know whether you are reading documentary records or imagined prose à la Mantel, for both are neatly cut from whole cloth. Thus, describing Coke’s library:

Many of these books are working volumes. Coke has the habit of writing brief notes in their margins. Sometimes he draws in a dagger, sometimes he makes careful little drawings of hands, each with a finger pointed towards a passage of text he wishes to mark out. Most precious of all to him are his notebooks, in which he takes down the details of cases he has seen: hundreds of pages written and overwritten in his tiny writing.

Perhaps the most striking instance of the blurring of fact and fiction is the memorandum written by Bacon as solicitor general in 1613 on how to persuade the king to remove Coke from his post as chief justice of the common pleas and clear the way for Bacon’s promotion to attorney general. Catherine Drinker Bowen quotes from it in her classic biography of Coke, The Lion and the Throne, describing it as ‘Bacon’s memorandum to James’, and Norman follows suit, describing it as ‘a formal memorandum of advice to the king’. Neither writer gives an attribution; in fact Norman’s narrative, for good reason, is entirely unsourced, but he sets the text out almost in full:

REASONS FOR THE REMOVE OF COKE

Reasons why it should be exceeding much for His Majesty’s service to remove the Lord Coke from the place he now holdeth to be Chief Justice of England, and the Attorney [i.e. Henry Hobart] to succeed him, and the Solicitor [i.e. Bacon] the Attorney.

First, it will strengthen the King’s causes greatly amongst the judges. For my Lord Coke will think himself near a Privy Councillor’s place, and thereupon turn obsequious.

Secondly, the Attorney sorteth not so well with his present place, being a man timid and scrupulous, whereas the now Solicitor [Bacon] going more roundly to work, and being of a quicker and more earnest temper, and more effectual in that he dealeth in, is like to recover that strength to the King’s prerogative which it hath had in times past, and which is due unto it.

Thirdly, the King shall continue and add reputation to the Attorney’s and Solicitor’s place by this orderly advancement of them, which two places are the champion’s places for his rights and prerogative. Besides, the remove of my Lord Coke to a place of less profit, though it be with his will, yet will be thought abroad a kind of discipline to him for opposing himself in [i.e. obstructing] the King’s causes, the example whereof will contain others in more awe.

Lastly … this will appear to be the King’s own act, and is a course so natural and regular as it is without all suspicion … to the King’s infinite honour.

Thus by moving Coke to a higher court, Bacon reasons, James will confiscate his common-law wrecking ball and the fees that go with the job. His proposed replacement, Hobart, has none of Coke’s principle or courage, but putting him on the bench will free up the attorney general’s post which Bacon covets.

If this were indeed addressed to the monarch, it would be one of history’s most spectacular job applications. But it is not couched in the vocative, and if it were it would address ‘Your gracious Majesty’, not ‘the King’. I think the conclusion has to be that this serpentine essay in logic was for the eyes only of Bacon or possibly a patron.

Among Norman’s studiously unattributed materials is a freestanding memorandum written in 1671 by Thomas Hobbes, who in 1623 had been employed as Bacon’s secretary. Addressed as a private note to Hobbes’s patron, the Earl of Devonshire, it exhibits a degree of authenticity that biographers will kill for. Bacon, it says, had been

engaged in the composition of numerous discourses and writings by which he sought to win the esteem of posterity and advance the progression of natural philosophy. It was as though the drought of increasing age had forced his great tree of knowledge to flower and fruit … I heard him comment in dismay at events in Parliament, whereby men challenged the prerogative right and earthly power of His Majesty, which his Lordship ever sought to defend. He seemed to reserve a special disrelish for Sir Edw. Coke, though he lived not to see his rival’s most flagrant act in 1628.

The note goes on to record with unconcealed pleasure that at Coke’s funeral ‘there was much pomp, and a long procession which included his wife, Lady Hatton, with whom he regularly fought, and at the end she said We shall not see his like again, thanks be to God.’

It certainly took me in. I first heard the story about Lady Hatton’s parting shot many years ago, but had never seen its source. Here, apparently, it was. But why then was the custodian of Hobbes’s manuscript (presumably one of the Devonshire dynasty) not included, alongside the Leicester and Salisbury families, in Norman’s acknowledgments? And why did neither the ODNB nor Bowen’s biography of Coke mention Hobbes’s anecdote? Reluctantly I admit to having been fooled by Norman’s pastiche.

John Aubrey​ left several pages of biography and gossip about both men. He noted that Coke was ‘too clownish and bitter in his carriage’ – his attitude – ‘to Sir Walter Raleigh at his trial, where he says “Thou traitor” at every word, and “Thou liest like a traitor” … He plays with his case as a cat would with a mouse … But when it comes to matter of law, all acknowledge him to be admirable.’ Both sides of Coke’s reputation have endured. Not long ago the benchers of the Inner Temple refused to name a new building after him because of his brutal prosecution of Raleigh. Yet Coke’s law reports, many of them his own cases, continue to be uniquely relevant to the modern law governing the use and extent of prerogative powers and much else beside.

Bacon is a more elusive character. In Norman’s narrative he frequently appears sly and cold-blooded, an appearance that sits ill with his output of works on philosophy and his love of music. There may be something telling in Aubrey’s note that Bacon ‘had a delicate, lively hazel eye; Dr Harvey told me it was like the eye of a viper.’ Yet Aubrey asserts that Bacon was envied by Coke. His Essaies acquired and maintained an almost oracular status. The Oxford Dictionary of Quotations contains more than a hundred of Bacon’s aphorisms, few of them sententious and many of them perceptive.

It is from Bacon’s essay ‘Of Great Place’ – high office – that Norman’s title is drawn: ‘All rising to great place is by a winding stair.’ This essay was not included in the original edition of 1597. It first appeared in the much enlarged edition of 1612, and it is probable that it was the intervening events in Bacon’s life – he was by now solicitor general and on his way to the lord chancellorship – that prompted it. But there is no triumphalism in his prose:

Men in great place are thrice servants; servants of the sovereign or state, servants of fame, and servants of business; so as they have no freedom, neither in their persons, nor in their actions, nor in their times. It is a strange desire to seek power and to lose liberty; or to seek power over others, and to lose power over a man’s self. The rising unto place is laborious, and by pains men come to greater pains; and it is sometimes base, and by indignities men come to dignities. The standing is slippery, and the regress is either a downfall, or at least an eclipse, which is a melancholy thing.

Little of what Bacon wrote is perceptibly directed at Coke, but one passage almost certainly is. His essay ‘Of Judicature’ contains this sentence: ‘Let judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’ The lions were real enough: the coronation throne, constructed in 1297 and still in use, has gilded lions for its feet. They were also symbolic: Bacon was warning against the overreach of judicial power. Four centuries later the persistence of the same dispute is flagged up by Norman’s citation, by way of epilogue, of a passage from the UK Supreme Court’s decision on Boris Johnson’s misuse of the power to prorogue Parliament. But although ‘Of Judicature’ appeared in the 1612 edition of Bacon’s Essaies, it did not contain this resonant sentence. The aphorism that judges, although leonine in courage, should defer to the sovereign power of the throne first appeared in Bacon’s final edition of 1625, long after Coke had gone from the bench. Bacon by then had no more than a year to live in retirement and disgrace; Coke, by contrast, was gearing up for the showdown with the monarchy that in 1628 compelled Charles I to accede to Parliament’s Petition of Right.

Bacon had risen by the winding stair and had then come crashing down it; Coke, for all his intellectual arrogance, took the low road, working towards the completion of his Institutes of the Laws of England and editing volumes of law reports which are still consulted; sitting in successive parliaments from 1621 onwards and lending his learning and his authority to the composition of the historic measure, still on the statute book, which definitively stifled the royal prerogatives of taxation and billeting of troops on civilians in the absence of parliamentary authority. ‘God send me,’ Coke said in the debate, ‘never to live under the law of conveniency or discretion. Shall the soldier and the justice sit on one bench, the trumpet will not let the crier speak.’