CHAPTER VII.

SKETCHES OF FORMER JUDGES.

Sir Edward Coke-Sir Mathew Hale-Sir John Holt-Sir Michael Foster-Lord Mansfield-Lord Kenyon-Sir John Wilmot-Sir Francis Buller-Lord Ellenborough-Sir James Mansfield-Lord Tenterden.

THE great SIR EDWARD COKE,* whose writings are text books to the lawyer, after filling, for seven years, the office of chief justice of the common pleas, was, in 1606, raised to the chief justiceship of the King's Bench. Attached to the law, whose very spirit is freedom, Coke was, during the course of his judicial career, brought frequently into collision with his

of

* For information respecting Sir Edward Coke, the reader is referred to a life of that great man, by C. W. Johnson, Esq. 2 vols. 1836. A well-written memoir of Coke, from the pen E. P. Burke, Esq. late of the judges of St. Lucia, was published in the Library of Useful Knowledge, a few years ago.

VOL. I.

master, James I., whose selfish love of prerogative, induced him to transgress, as well, the dictates of prudence, as the principles of the constitution. Not long after he had been placed on the bench of the Common Pleas, Coke was summoned before the privy council, to deliver his opinion as to whether certain royal proclamations had the efficacy of acts of parliament. He evaded a direct answer to the question, urging its importance, and the short notice that had been given him, and praying leave to confer with his brethren on the matter. In reply to some observations of the chancellor, he observed, that "the king could not change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without parliament." The matter was ultimately referred to certain judges, whose answer does not appear to have gratified the court. He also strenuously opposed the high commission court. In the great case of commendams, the judges were again involved in a dispute with the court. A serjeant, pleading in the Common Pleas, made use of language, which James, when it was reported to him, considered adverse to his prerogative. The attorneygeneral, Bacon, accordingly conveyed to the judges the king's command, that they should not suffer the cause to proceed until they had, in the first instance, consulted with him. But, after conferring together, they determined to disregard the royal mandate, and proceeded to determine the cause, justifying themselves to the king in a letter, in which they stated that, as the cause involved a private matter, they were

bound by their oaths to decide it, "faithfully and uprightly." On this, they were summoned before the king, who in the true spirit of a pedantic pedagogue, schooled them, first for their disobedience to his commands, and secondly, for the manner of their letter, which he said was "couched indecently, and failed in the form." For this offence, they knelt down and implored pardon, but, as to the rectitude of their conduct, in resisting his orders, Coke vindicated himself and his brethren. Lord Ellesmere the chancellor, with characteristic prudence, declined to give any opinion on the matter, and referred it to the king's counsel, one of whom-alas! that it should have been Bacon!-boldly declared the judges had in a greater degree, violated their oaths in disobeying the king's command, than they could have done in complying: because, by their oaths, they were bound to give the king counsel, and how could they have counselled him after the cause was decided. Coke replied, with some asperity, that Bacon's interference was indecent-it was the duty of counsel to plead before, and not against, the judges-to which, Bacon retorted that the king's counsel were bound to plead, not only against the greatest subjects, but the greatest body of subjects-were they courts, judges, or even the commons assembled in parliament; and then concluded with appealing to the king, with whom Coke declined contesting the matter. The chancellor having decided against the judges, the following question was then put to them--"In a case where the king believed his prerogative or interest con

cerned, and requires the judges to attend him, for their advice, whether, in such a case, they ought not to stay proceedings till his Majesty had consulted them?" To this interrogatory, they replied in the affirmative, with the exception of Coke, who declared that "when the case happened, he would do that which should be fit for a judge to do." Not long after this, certain charges were brought against him, chiefly in relation to his reports, which were said to contain some passages reflecting on the royal prerogative. As he succeeded in vindicating himself on this point, he only aggravated the offence, and was ultimately dismissed from his office. When the new chief justice sent to him to purchase his collar, Coke refused to part with it, saying, that "he would leave it to his posterity, that they might one day know they had a chief justice to their ancestor."

Of his learning as a lawyer, of his greatness as a judge, it is hardly necessary for us to speak at any length. His merits in these respects are recognizedbut he had merits of another and prouder kind-he was a patriot, zealously attached to the law, satisfied that it afforded the best guarantee to the liberties of the subject, and the rights of the crown. "His advancement," it has been well observed by Hammond and L'Estrange," he lost in the same way he got it-by his tongue." Long lived he in that retirement to which court indignation had remitted him; yet was not his

* It was said at the time that four P's had overthrown Cokepride, prohibitions, præmunire, prerogative.

recess inglorious; for at improving a disgrace to the best advantage he was so excellent, as king James had said of him, "he was like a cat, throw him which way you will, he will light upon his feet!"

Of Coke's habits, a passage in his grandson Roger Coke's "Detection," will throw some light. When Winwood had apprized James of the Earl of Somerset's share in the murder of Sir Thomas Overbury, the king sent a messenger to Coke to apprehend the earl."Sir E. Coke then lay at the Temple, and measured out his time at regular hours, two whereof were to go to bed at nine o'clock, and rise again at three. At this time Sir Edward's son, and some others, were in Sir Edward's lodgings, but not in bed, when the messenger, about one in the morning, knocked at the door, where the son saw and knew him; says he, 'I come from the king, and must immediately speak with your father.' 'If you come from ten kings,' he answered, 'you shall not; for I know my father's disposition to be such, that if he be disturbed in his sleep, he will not be fit for any business; but if you will do as we do, you shall be welcome, and about two hours hence my father will rise, and you may then do as you please,' to which he assented." Coke used to boast that he never gave his body to physic,* his heart to cruelty,

"Sir Edward Coke being now very infirm in body, a friend of his sent him two or three doctors to regulate his health, whom he told that he had never taken physic since he was born, and would not now begin; and that he had now upon him a disease which all the drugges of Asia, the gold of Africa, nor all the doctors of Europe, could cure-old age. He, therefore, thanked