Sir Edward Coke and the Elizabethan Age 9781503624207

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SIR EDWARD COKE AND THE ELIZABETHAN AGE

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Jurists: Profiles in Legal Theory general editor

William Twining

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Sir Edward Coke and the Elizabethan Age ALLEN D. BOYER

STANFORD UNIVERSITY PRESS STANFORD, CALIFORNIA

Stanford University Press Stanford, California @ 2003 by the Board of Trustees of the Leland Stanford Junior University Printed in the United States of America Library of Congress Cataloging-in-Publication Data Boyer, Allen D. Sir Edward Coke and the Elizabethan Age/ Allen D. Boyer. p. em.- (Jurists-profiles in legal theory) Includes bibliographical references and index. ISBN o-8047-4809-8 (cloth: allc. paper) 1. Coke, Edward, Sir, 1552-1634. 2. Judges-EnglandBiography. 3. Great Britain- Politics and government-1558-1603. I. Title. II. Series. KD62I.C64 .B695

2003

347.42'014-dC21 This book is printed on acid-free, archival-quality paper. Original printing 2003 Typeset at Stant()[d University Press in I0/13 Galliard

2003004282

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Contents

Preface

ix

1.

Norfolk Beginnings, 1552–1570

2.

Roads South: Norwich, Cambridge, Holborn

3.

Learning the Law

4. Practicing the Law

1 12

27 40

5.

Magistrates and Ministers: County Politics, 1572–1583

6.

Challenges to Authority: County Politics, 1583–1592

7.

Understanding, Authority, and Will: Coke’s “Artificial Reason” 83

8.

The Great Cases: Shelley, Chudleigh, and Slade

9.

Coke’s Historical Learning

135

10.

Anne Coke Stubbes and the Puritan Movement

11.

Sir Edward and Mistress Anne

12.

Character

13.

The Parliament of 1593

14.

The Queen’s Attorney and Cecil’s Man

15.

The End of the Reign Afterword Bibliography

176

189 215

272

297 303

Index

108

317

242

156

54 67

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Preface

What Shakespeare has been to those who write in English, Sir Edward Coke has been to the lawyers of the English-speaking world. This book deals with the years in which Coke acquired his learning, set his course, and proved himself as a lawyer, prosecutor, and Speaker of the House of Commons. Traditionally, studies of the Lord Chief Justice have emphasized conflict and controversy. They feature ferocious speeches for the prosecution, explosive confrontations with King James I, and patriotic orations on the floor of the Commons. As far as it goes, this portrait is not inaccurate; hence its hold on the legal imagination. This book attempts to complete the portrait and restore its balance by putting back in what was often the better part of Coke’s career, his ability to compromise and collaborate. Coke remains a subject for heroic treatment. He must equally be seen as a figure in a specific cultural landscape. With his claims that the common law was eternal and unchanging, of equal rank with the civil law of the Continent, he was among the Elizabethans who helped carve out for the English people, as Edmund Spenser put it, “a kingdom of our own language.” As a lawyer, Coke represented clients across the breadth of England, gentlemen, Cockneys, recusants, thieves. The community of Puritan believers knew Coke as their counsel and patron. Anne Stubbes of Norfolk, a strong-willed and eloquent Separatist, knew him as something closer, as a brother. It is such associations that this book emphasizes.

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Coke enjoyed an extraordinarily long life and extensive career. He began studying law in January 1571, when he was still eighteen. He sat in the Parliament of 1628, his most memorable legislative session, when he was seventy-six, and that same year published his famous Commentary Upon Littleton. When this volume pauses, in May 1603, at Elizabeth’s death and James’ accession, Coke’s story pauses five months short of the trial of Ralegh and twenty-five years before Coke’s retirement from public life. If Coke’s history is a drama of five acts, this book covers the first three. During the reign of Elizabeth, Coke established himself as an eminent lawyer and rose high in the service of the crown. With other gentlemen in Norfolk, he protested taxation and corruption, issues which would re-emerge in Stuart days. His leadership in the Parliament of 1593 foreshadowed his leadership in the parliaments of the 1620’s. He had squared off against Richard Bancroft and Thomas Egerton, his ablest rivals, and outpaced easily, through the first turn of the course, his bitterest rival, Francis Bacon. Also rooted in the Elizabethan period are Coke’s definition of law as the collective wisdom of the judges, an outlook which underpins his decision in Bonham’s Case (1610), and his magisterial ability to reinterpret the history of the common law, which let him translate the law of medieval England into doctrines adapted to a changing society and expanding economy. Thanks go first to my father, Roscoe Allen Boyer, without whose aid this book could not have been written. For the better part of a decade he has researched and copied in the libraries of the University of Mississippi the materials which I asked him to search for, and obtained through interlibrary loan whatever could not be located on the shelves. Without him, this project would have come to a halt several years ago. John Baker gave freely of his immense knowledge and limited time. Whatever honors may be offered him by those of us who write on English law, we will still be in his debt; and beyond that I thank him for his interest, insights, and comments. Thomas Barnes supplied details of Star Chamber practice and encouraged the book with his unique blend of knowledge and exuberance. Mark Nicholls, who read and commented acutely on the manuscript, has provided a comrade’s fellowship on a long march across Elizabethan terrain. My son Declan says hello to his son Guy. Richard Sherwin, who was working on his book while I was working on mine, for years has volleyed back suggestions on law, rhetoric, and culture. I think he took some of my advice and I have been glad for some

Preface

of his. Nicholas Hills of Tittleshall and Felicity Griffin of Huntingfield, who have cared for two churches which Coke knew, shared their knowledge of the Lord Chief Justice’s home terrain and opened their homes to not only a traveling scholar, but also his family. Their hospitality was liberal; Coke would have styled them generosi. The American Philosophical Society generously supported early research on this project, and I am grateful. For their help and courtesy, I thank the staff of the following: the British Library, Cambridge University Library and Archives, Pembroke College Library, Trinity College Library (Cambridge), University College Library (London), the Public Record Office, the Norfolk Record Office, the public library of Holt, Norfolk, the City of Coventry Archives, and the Earl of Leicester’s archives and library at Holkham; Columbia University School of Law, Georgetown University Law Center, the New York Public Library, New York County Lawyers’ Association, New York Law Institute (Langdell’s old haunt), and the Henry E. Huntington Library. When official channels failed, Richard Helmholz of the University of Chicago graciously obtained a copy of the Sandeen collection of Sir Nicholas Bacon’s letters. Andrew Leykam, then in high school, talked an NYPL clerk into photocopying twenty invaluable pages from Carthew’s Hundred of Launditch. Nancy Joseph, who superintends the New York Law Institute, has made it possible to work on Chief Justice Coke with books once owned by Chief Justice Jay. Particular thanks, for help which has extended over years, go to Steven Horvath, interlibrary loan coordinator at the St. George branch of the New York Public Library; to David Warrington, Head of Special Collections at Harvard Law School; and the interlibrary loan staff at the University of Mississippi. Others have read and commented and assisted: J. F. Barton, Hamilton Bryson, Patrick Collinson, Edward Douglas Coke, Earl of Leicester; Daniel Coquillette, DeLloyd Guth, Leon Helguera, Steve Hindle, Christine Hiskey, David Ibbetson, Dafydd Jenkins, the late Philip Kurland, Jim Leeson, Diarmaid MacCulloch, Jeffrey O’Connell, Wilfrid Prest, Jonathan Rose, John Henry Schlegel, David Seipp, Steve Sheppard, A. W. B. Simpson, Jonathan Smith of Trinity College, Hassell Smith, Avi Soifer, Eileen Spring, Chantal Stebbings, Andrew Thrush, Victor Tunkel, the late Roger Virgoe, John Wells, and W. J. Jones, who remains at work on his own study of Coke. Thanks also to Sir William Holdsworth for the comparison with which this Preface opens. William Twining has maintained an editor’s faith in the book, and, at Stanford University Press,

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Norris Pope and particularly Amanda Moran and John Feneron have helped complete it. The comments of an anonymous reviewer helped put a finish on the work. Coke thoughtfully wrote that matters of law could best be understood by consulting others who had long considered them. Those named above have likewise helped to fine and refine this book. For any errors or misconceptions the author bears responsibility. The opinions expressed herein are the author’s own and do not necessarily represent the opinions of the New York Stock Exchange Inc. or any of its officers. Dates are given Old Style, except that the year is taken to begin on January 1 (thus making Coke’s birthday, for example, February 1, 1552, rather than February 1, 1551–52). Spelling has generally been modernized throughout. Thanks go also to the shipwrights who built and the mariners who have manned the Staten Island ferryboats of the John F. Kennedy class. On the outer decks of these vessels, as they ply the waters between St. George and Whitehall, this book has been written. My father first read history to me; my mother Margaret Anne Boyer taught me about writing; my wife Kathleen has taken with remarkable good grace the task of having a pedantic Elizabethan lawyer as a longterm houseguest. From offspring one learns how children play Sancho Panza to a parent’s Don Quixote. This book is dedicated to my family. A.D.B.

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SIR EDWARD COKE AND THE ELIZABETHAN AGE

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chapter 1

Norfolk Beginnings, 1552-1570

In 1552, when Edward Coke was born, the surname Coke could be traced back in Norfolk across four centuries. William Camden, when he worked out the Chief Justice’s family tree, found a William Coke in the hundred of South Greenhoe, a day’s ride west of Norwich, as far back as the reign of King John.1 In the 1400’s, the family began to figure more often in the records: a merchant in Norwich, an under-sheriff, a lawyer being sued for unpaid dues by Staple Inn.2 They held land in the county still, westward at Sparham and northeast at Crostwick and East Ruston and Happisburgh. Within Norwich, they worshiped in the ward of Conisford. Alderman Robert Cooke, in 1499, closed the century by giving £10 to glaze the south window in St. Peter’s Parmentergate. The surname was variously spelled, Coke or Cooke or Cok. The expressively phonetic spelling of John Hawarde, in his reports of Star Chamber cases, suggests that the Elizabethan pronunciation was Kuke.3 1

Francis Blomefield, An Essay Towards a Topographical History of the County of Norfolk at 9: 235–39, 8: 258 (London: W. Miller 11 vols. 1805); C. W. James, Chief Justice Coke, His Family and His Descendants at Holkham (London: Country Life 1929) and John Smyth, Lives of the Berkeleys at 2: 401 (Gloucester, 3 vols. 1885) (pedigrees); John Hawarde, Les Reportes del Cases in Camera Stellata 1593–1609 (London: Spottiswoode, W. P. Baildon ed. 1894), passim. 2 Blomefield at 4: 151; information on practitioners from J. H. Baker. 3 Blomefield at 9: 235–39, 4: 91–93, 4: 151. A collateral branch of the family would produce London merchants and Norwich aldermen throughout the seventeenth century. Blomefield at 4: 93.

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Ancestors: Coke, Knightley, and Pawe Robert Coke, Edward’s father, was born in 1513. He was an attorney of the Common Pleas and a member of Lincoln’s Inn. Around 1540 his name begins to appear in the plea rolls, mostly representing Norfolk clients.4 Over time, he acquired a scattering of manors, from Congham and Westacre near King’s Lynn to Happisburgh on the eastern coast. Robert counted as his patrons the Townshend family, whose farms and sheepfolds covered northwestern Norfolk; he was their attorney, their servant, a godfather to one Townshend daughter. From around 1550, when he moved from Heydon to Mileham, he was the Townshends’ neighbor as well.5 The road from Mileham to the Townshend family’s seat at Raynham ran north, through the prospering village of Tittleshall and the dying village of Godwick. Around those three villages—Mileham, Godwick, and Tittleshall, a postage-stamp of land traversable in a morning’s walk—much of Edward Coke’s long life would revolve. Winifred Knightley Coke, the Chief Justice’s mother, came from a family at least as old and likely more prominent. Her grandfather, Andrew Pawe, had practiced law in Norwich for thirty-odd years, beginning under Edward IV and continuing into the reign of Henry VIII. Her father, William Knightley, had practiced law in Norwich for forty-five years, from around 1495 to around 1540. (He seems to have lived most of a decade beyond this; the Chief Justice’s longevity may have been inherited from this side of the family.) William belonged to the Knightley family who were prominent in Northamptonshire; he may have settled in Norwich upon marrying Margaret Pawe. The Pawe family’s status was reason enough. Old Andrew had been town clerk for Norwich and clerk of the peace for Norfolk, and he had married his daughters well. Winifred’s sister Audrey married Sir Thomas Gawdy—lawyer and landholder, right-hand man to the Duke of Norfolk, father of two judges, connections which would be invaluable to Coke.6 4

J. Bruce, “Sir Edward Coke’s Vade Mecum,” Collectanea Topographica et Genealogica at 6: 108–22 (1840); practice information supplied by J. H. Baker. 5 C. E. Moreton, The Townshends and Their World: Gentry, Law and Land in Norfolk 1450– 1551 at 48, 110, 125, 127 (Oxford UP 1992); Blomefield at 8: 295, 9: 299, 9: 508; will of Robert Coke, Calenday of Holkham Estate Records, vol. 1, p. 5, Doc. 2. 6 Percy Millican, The Gawdys of Norfolk and Suffolk at 60–61 (Norwich: Goose & Son Ltd. 1939); information on legal practice from J. H. Baker. Other lasting connections were forged at this juncture. William Knightley’s second wife Agnes was the sister of Lord Keeper Sir Nicholas Hare. Young Nicholas Hare, the Lord Keeper’s son, was a prominent lawyer, an able, honorable man, and possibly the only person ever to call Edward Coke “my very good

Norfolk Beginnings, 1552–1570

The Cokes and the Pawes must have known each other well, in Norwich city affairs and in the life of their home parish. Andrew Pawe served as city clerk around the time that Robert Cooke was alderman. St. Peter’s Parmentergate, where Robert paid to glaze the window in 1499, was where Andrew was buried in 1510. St. Peter’s Parmentergate was also the church where Robert Coke and Winifred Knightley were married in 1543.7 Both Pawes and Cokes also belonged to Norwich’s Guild of St. George, which staged an annual pageant each spring on April 23, the saint’s feast day. It is pleasant to think of them in that light—polishing the helmet and brightwork in which St. George would parade through the streets of Norwich, or tamping gunpowder into the nostrils of the dragon which paraded with him.8 With the dissolution of the monasteries, the Pawes and Knightleys and Cokes acquired a stake in the success of the Reformation. Winifred’s uncle William Pawe, a priest who was also a common lawyer, emerged from King Henry’s revolution with full title to his rectory. He made Winifred his heiress, for this and other lands.9 Another holding came in at the end of 1543: the rectory at Whitwell, part of the spoils of Pentney Priory, were split off, perhaps as a wedding gift, to Robert Coke and Winifred his bride.10

Coke’s Birth in Mileham Mileham was where Edward Coke was born. It was twenty-six miles northwest of Norwich, halfway between that city and the tidal mudflats _____ friend.” Winifred’s other sister, Lettice, had a granddaughter who married Sir Ranulph Crewe—later Chief Justice under Charles I, and on whom Coke would lean in old age. Blomefield at 11: 171; P. W. Hasler, Biographical Directory of the House of Commons 1558–1603 (London: HMSO for History of Parliament Trust, 3 vols. 1981). 7 Blomefield at 4: 93; Millican, Gawdys of Norfolk at 60; Vade Mecum at 110. 8 “Records of the Gild of St. George in Norwich 1389–1547,” Norf. Rec. Soc. 9, passim (ed. M. Grace 1938) ; Ronald Hutton, The Stations of the Sun: A History of the Ritual Year in Britain at 214–17 (Oxford UP 1997). 9 Millican, Gawdys of Norfolk at 60–61; practice information from J. H. Baker. 10 Moreton, The Townshends at 127. The rectory at Whitwell was part of a group of monastic properties bought by Roger Townsend II, who immediately reconveyed it to Robert and Winifred—in December 1543, the same month they married. For several parties to combine in buying a package of monastic lands was common. Robert Coke’s links to the Townshends would have given him the opportunity to share such a venture. On the other hand, William Knightley had also served as attorney for the family. Id. at 48. To buy a rectory was both a means of providing church livings for descendants and a way of investing indirectly in agriculture, as functionally one was buying the tithes of a parish. These possibilities may have appealed to a father contemplating his daughter’s marriage.

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of the Wash. The village stood on an upland between two local rivers: a prosperous working countryside, wheatfields and pastures and wooded parkland thick with timber trees. With a motte-and-bailey castle, Mileham had rated a line in Domesday Book; the road from Norwich to Lynn ran through the lines of the old Norman fortress. Within the same grassed-over earthwork stood the house where the Cokes were living in the winter of 1551–52.11 On St. Bridget’s Day, February 1, 1552, Winifred Coke was at home, in her downstairs parlor, when labor pains came upon her. Delivery was swift—the child was probably her fourth—and the baby was born before the mother could be carried upstairs.12 A theme of Coke’s life emerges here, his association with antiquity. The baby born within the Norman walls would be the judge who traced his nation’s liberties into the mythic past. Decades later, when Sir Henry Spelman was collecting materials for his Icenia, Coke told him the story and pointed out the parlor. Great things had been predicted for a child born so suddenly, Coke informed Spelman, treating his own nativity as a significant moment in East Anglian history.13

Robert Coke of Mileham Robert Coke apparently had ambitions. He had influential friends, Heydons and Gawdys and Cornwallises; it is such men of name, not his blood relations, who figure in his will. His patrons the Townshends tacked nimbly across the political crises of their day, and nothing sug11 H. C. Darby & G. R. Versey, A Domesday Gazeteer at 281 (Cambridge UP 1975). The site of the Coke house is on land owned by the Butler-Stoney family of Burwood Hall, Mileham, who have brought the site to the attention of county archaeological authorities. 12 Until at least 1549, as evidenced by a marriage settlement for Thomas Gawdy, Robert Coke had lived at Heydon, Norfolk. Calendar of Holkham Estate Records, vol. 1, p. 5, Doc. 1. The Mileham parish registers do not record the baptisms of Winifred, Dorothy, or Elizabeth Coke; likely they were born earlier and elsewhere. 13 Spelman wrote: “Praedicabat miri quidpiam ejus Genitura; matrem ita subito juxta focum intercipiens et in thalamum cui suberat non moveretur. Locum ipsum ipse mihimet demonstravit.” Henry Spelman, English Works of Sir Henry Spelman at 150 (2d ed. 1727). The old wives of Mileham may have known different reasons for predicting success for the new-born babe. Mileham and its Norman fortress are said to guard one of England’s ley lines. Ley lines are believed by some to represent Bronze Age tracks cutting across the countryside, tracking “earth energy coinciding with alignments drawn from sunrise or sunset at the equinoxes.” The road at Mileham “runs just slightly to the north of the great alignment which started from Avebury” with its monumental ring of sarsen stones. Shirley Toulson, East Anglia: Walking the Ley Lines and Ancient Tracks at 7–10, 56–57 (Wildwood House, London, 1979).

Norfolk Beginnings, 1552–1570

gests that Robert Coke was less adaptable. In 1552, in the Protestant noonday of Edward VI, Robert gave his first-born son the name of the reigning monarch. (No previous Edwards figure in Coke pedigrees.) In 1556, under the Catholic regime of Philip and Mary, Robert Coke did not seek obscurity; rather, he obtained a coat of arms.14 Beginning in 1558, however—when Elizabeth’s new government purged Catholic magistrates from the commissions of the peace and packed the benches with trustworthy Protestant gentlemen—Robert Coke was named a justice of the peace. He was steadily recommissioned, and attendance records suggest that he took his duties seriously.15 In March 1560, when he was forty-six or forty-seven, and with his only son of an age to enter grammar school, Robert Coke made out his own will.16 The document offers a glimpse of the Coke family’s life at Mileham. Robert Coke’s will is the testament of a man who believed his children’s welfare would be bound up with their education. Robert stipulated twice that his children be brought up virtuously, and provided funds for their education: the profits of three manors, and other lands beside, “until Edward my son reaches the age of eighteen years.” Robert did not distinguish between the education to be given his son and the education to be given his daughters, which may be significant. Robert left each of his daughters a hundred pounds, to be paid when she turned twenty-one or within two years of her marriage. Edward was left a hundred pounds, to be paid within a year of his turning twentyone. If Robert based these gifts on his own expectations, he placed himself in the upper tier of the lower gentry. The sums themselves are substantial but not extravagant. They show that Robert expected to be able 14 The device was a bold study in three dominant colors: a white ground with a red engrailed chevron between three black tigers’ heads (which looked more canine than feline; the tiger of heraldry does not resemble the Asiatic big cat). In a predictable pun, the crest featured a turkey-cock, one of the black turkeys which are still bred in Norfolk. The arms were granted by Thomas Hawley, Clarenceaux King of Arms, to “Robert Coke of Mildham [sic] in Norfolk.” Information and illustration from the College of Arms supplied by Nicholas Hills; see also Blomefield at 10: 22. Robert’s son chose for his own device an arrangement equally striking but more vibrant and colorful, three silver eagles on a field of red and blue pales. 15 A. Hassell Smith, County and Court: Government and Politics in Norfolk 1558–1603 at 352 (Oxford UP 1974). 16 A copy of Robert Coke’s will is among the Chief Justice’s papers at Holkham. Calendar of Holkham Estate Records 1: 5, Doc. 2. Christine Hiskey, archivist at Holkham, graciously provided an abstract.

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to raise a decent amount of money, provided (crucially) that he had time to do it.17 In one aspect, the will is atypical: Robert placed an unusual degree of trust in his wife. Rather than fettering her judgment, he left Winifred his lands at Mileham and Tittleshall, an unusually broad bequest. More than that, he named her his executrix. Thomas Gawdy, her brother-in-law, was named co-executor, but apparently had a secondary role. Winifred was directed to enter a thousand-mark bond, in Thomas Gawdy’s favor, for the true performance of Robert’s will, with Gawdy, in return, required only to give counsel from time to time. Superficially, this put Gawdy in charge; in fact, it protected Winifred’s authority over the estate and the rights of her children by Robert. If she were to remarry, her second husband could legally claim the household property which Robert had left her, as well as her income from Robert’s lands. The bond forestalled this. With a thousand-mark penalty hanging over the estate—to be enforced by Thomas Gawdy, eminent lawyer, steward to the Duke of Norfolk, justice of the peace, and the children’s uncle—no second husband would be tempted to set hands on the Coke patrimony.18 Robert left £10 to the poor. Another £10 went to rings for his executors and close relations. He invoked the pleasure of Almighty God, as a guideline for his executors’ conduct, but left no money to any church. He did not mention his own blood relatives, his brother Thomas or his nephew George.19 The will seems that of a rising man, one who prefers connections he has made to those with which he was born.20 17 A hundred pounds might be the yearly profit of a manor; it was much larger than the ten pounds per annum of a country parson, or the twenty pounds of a grammar-school headmaster; it was much less than the thousand pounds which a nobleman could yearly expect. A. L. Rowse, The England of Elizabeth at 79, 493, 496 (New York: Macmillan 1950); Christopher Hill, Economic Problems of the Church from Archbishop Whitgift to the Long Parliament at 110–13 (Oxford UP 1956). The Coke sisters made no spectacular marriages, but they did marry well. Between them, the seven girls married a total of nine husbands, all rightly able to style themselves armiger or generosus. These included five country gentlemen, one parson, two burgesses, and a serjeant-atlaw. Throughout the Tudor and Stuart eras, the families from which these spouses came—Barker, Bohun, Franklin, Gooch, Knyvett, Leedes, Osborne, Mingay, Stubbes—routinely supplied college heads to Cambridge, mayors to Norwich, and members to the House of Commons. 18 With a bond in his favor, if the will’s provisions were violated, Gawdy could move immediately to lock down the estate, rather than having to pursue an action in the church courts which oversaw probate. Moreover, the large size of the bond freed Gawdy from having to quantify any damage suffered by the estate. Thanks to Eileen Spring and John Barton for their help in interpreting Robert Coke’s will. 19 Blomefield at 8: 293–96. 20 The social order of rural Norfolk was baldly checkered. Estates held in freehold, of

Norfolk Beginnings, 1552–1570

Suddenly then, two months before his son turned ten, and only eight months after he had made his will, Robert Coke died. Robert had gone to London, probably for the Michaelmas term of court. He left his family at Mileham, rode south, and never came back. In late November, he died at Lincoln’s Inn, and was buried the same day in Holborn. Out in Norfolk, his possessions passed into others’ hands. Years later, Edward recovered three books which had been Robert’s, two law-books and a volume of Erasmus. The loss still echoed: Received of Master Crowe who had all my father’s books, Edward wrote on a flyleaf.21

Winifred Coke and Her Son There are hints of something remarkable about Winifred Knightley. She married twice—the second time, after she had already borne ten children, to a man who did not need to marry for money. Two of her children, Edward and Anne, were intellectuals. There was culture in her family, a psalter which had once belonged to the Duke of Buckingham and a memorable portrait of her father; such artifacts found their way down to her son.22 _____ which there were many, abutted manors worked by bondmen, villeins in the unfree medieval sense. To win emancipation for such serfs, Tudor lawyers had devised a stratagem of fictive litigation. Cooperating with his lord, the villein sued the lord, very often alleging wrongful denial of inherited rights regarding an acre of land. The lord countered by obtaining, from an obliging bishop, a document certifying that the plaintiff was a bastard. A bastard had no inheritance rights, and so the villein would lose the fictive lawsuit; but by being certified as a bastard, the plaintiff had freed himself from villeinage. Because villein status was traced, like inheritance, through the male line, and a bastard’s father was unknown, a bastard could not be a villein. For a bondman willing to accept the stigma of illicit birth, such proceedings offered a way to cut off feudal obligations. Particularly in the diocese of Norwich, Tudor bishops seem to have routinely collaborated in such proceedings. Diarmaid MacCulloch, “Bondmen Under the Tudors,” in Law and Government Under the Tudors, ed. C. Cross, D. Loades & J. J. Scarisbrick (Cambridge UP 1988) at 91–109. In 1521, one Robert Coke—born at Whitwell, Norfolk, in the family’s home country— sued a knight for an acre of land, and was certified as a bastard. G. A. Carthew, The Hundred of Launditch and Deanery of Brisley: Evidences and Topographical Notes at 3: 111 (Norwich: Miller & Leavins 1879). The antiquary Le Neve diplomatically suggested that this Robert had been only a collateral relation of the Chief Justice. Even a collateral connection to such people, however, may have seemed too close to the Chief Justice’s father. Perhaps Robert Coke cultivated influential gentlemen, and provided for the virtuous education of his children, as a way of ignoring kinsmen who were either villeins or bastards. 21 In W. O. Hassall, Catalogue of the Library of Sir Edward Coke (Yale Law School 1950), these are a copy of Glanville (No. 379), a Statutes at Large (No. 425) and Erasmus’ Colloquia (No. 767). In the last volume, a note by Francis Cornwallis attests to Robert’s ownership. 22 Holkham Catalogue No. 287(a), C. W. James at 318.

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Most important, Winifred owned at least two law-books. A Book of Entries and a Year Book for the reign of Edward III were handed down to form the basis of her son’s law library.23 Winefred Cokes boke wedow, she wrote in the Year Book, claiming her property. It was her book, not her husband’s or her father’s, and she was not a gentleman’s relict. She was the Widow Coke, land-owner and student of the law, someone to be reckoned with in her own right. The claim which her son often made, that the art of pleading had reached its highest level under Edward III, may perhaps have been heard at his mother’s knee. Winifed had let Robert name his heir for the reigning monarch. The Coke daughters had simpler, older names: Winifred, Dorothy, Elizabeth, Audrey, Ursula, Anne, and Margaret. These names say little about the Cokes’ religion. From one perspective, they are saints and virgin martyrs; from another, they are Bible heroines and queens of England. Notably, they have a Saxon accent, particularly as Audrey’s name was written Etheldreda. Equally important, they hint at themes of their brother’s career, which would be marked, and sometimes made, by a series of strong female personalities. Edward Coke was a middle child, the only boy among a brood of sisters. Here may lie the origins of his vanity and self-confidence—also, perhaps, the family responsibilities which he took so seriously. He married where money was, and he was determined to marry his children with equal profit, by any means necessary. He was the opposite of enlightened or romantic. He was equally the opposite of Francis Bacon, who lovelessly married a teenaged girl and spent her dowry to buy purple wedding clothes. Three things were favored in law, Coke said: liberty and life and dower. Early in his career, when money was still tight for him, he scraped enough together to buy the pulpit of St. Andrew’s Church, in Holt, for his sister Ursula’s new husband, George Leedes.24 He may have been the one to sense a fit between his bookish, godly sister Anne and the bookish, godly background of his classmate at Trinity, Francis Stubbes. He was certainly the helpful uncle who placed Anne’s sons in country livings. In the household at Mileham, young Ned Coke must 23

Holkham Catalogue No’s 383, 428. Her son added a verification: Scripta manu propria matris Edw: Coke. That Coke took pains to identify his mother’s handwriting suggests that he considered that Winifred’s signature might turn up on other family papers—that is, that she had played a broad role in running the estate. 24 Co. Litt. 124b; Lewis B. Radford, History of Holt at 43 (Norwich: Goose & Son 1908).

Norfolk Beginnings, 1552–1570

have been the center of attention, the promising young heir; but he must also have seen the problems of finding seven wedding portions in one inheritance.25

Robert Bozoun, Coke’s Stepfather In 1563 Winifred married again. Her second husband was the squire of nearby Whissonsett, Robert Bozoun. Socially, this match was probably better than her first: the bridegroom’s family had been settled locally for three centuries, and the first Bozoun was said to have ridden with the Conqueror.26 For the future Chief Justice, Winifred’s choice was fateful. Robert Bozoun was an able man and a strong-willed one, from whom much could be learned about running estates and handling neighbors. He got along well with Winifred’s children, and he seems to have left a mark on his stepson. Robert Bozoun was half French, his mother a Breton war bride from Henry VIII’s Continental foray of 1513.27 There seems something Balzacian in his character, something in the insouciance and industry with which he drove hard bargains. He trafficked in land across northern Norfolk, brokering deals even-handedly between Catholics and evangelicals, Bedingfields and Bacons and Yelvertons.28 In the summer of 1572, when selling his manor at Stody, he attempted something few fullblooded Englishmen would have dared: at the last minute, he suddenly demanded better terms from Lord Keeper Sir Nicholas Bacon, who was not only the realm’s highest official, but also one of the richest and canniest proprietors in Norfolk. “Mr. Bozom still grateth upon me,” the Lord Keeper growled, “as it should seem he is persuaded that I will pay whatsoever he will ask”—but nonetheless, Bacon made concessions.29 25 John Aubrey heard one old lawyer say that Coke “was born but to 300 pounds a year land,” and others that his inheritance was much less, only £40 a year. John Aubrey, Brief Lives at 162 (Penguin ed. 1987). 26 Blomefield at 10: 81. The surname has been spelled Bozoon, Bozoun, Bosaunne, Bosom, and Bozome. 27 S. T. Bindoff, Biographical Register of the House of Commons 1509–1557, “Bozoun”; Carthew at 1: 276–78; “East Anglian Pedigrees,” Norf. Rec. Soc. 13: 241 (A. Campling ed. 1940). 28 Blomefield at 8: 447, 449; Carthew at 1: 261–63; Christobel M. Hood, The Chorography of Norfolk at 118 (Norwich: Jarrold & Sons 1938) (advowson owned by Robert Bozoun at Hunworth, Norfolk). 29 E. R. Sandeen, Correspondence of Lord Keeper Nicholas Bacon at 147 (unpublished M.A. thesis, University of Chicago 1955) (Nicholas Bacon to Nicholas Bacon II, Aug. 23, 1572). The Lord Keeper held no grudges and knew a man of business when he saw one; he retained

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Some of the Bozouns were Roman Catholics; Robert was not. The bishop of Norwich trusted him to sit on church commissions and the government trusted him to serve as chief constable, the man who tallied weapons in the armory at Holt.30 If anything, he had evangelical leanings. In the churches whose livings he owned, he appointed Puritan ministers, the sort who gave bishops trouble.31 Significantly, his stepdaughters caught his religious sympathies. Anne Coke proved a militant Brownist, challenging friends and enemies alike. Teen-aged Ursula Coke married George Leedes, son of the minister at Tittleshall, a mild-mannered but steadfast Puritan. Edward Coke, too, got on well with his Bozoun relations. He knew the Bozouns’ history well; he could cite to a lawsuit they had weathered a hundred years before. He took his relatives’ side in legal quarrels.32 Robert and Winifred had a son of their own, young John Bozoun; Coke had his half-brother admitted to the Inner Temple in 1594, paying a reduced fee of twenty shillings.33 Only once may Robert Bozoun have overreached himself. After the monasteries were dissolved, it seems, his family quietly kept back certain acres which should have gone to the crown for sale. It took three decades for this to come to light, but someone finally sniffed it out. In 1575, a concealment patent was issued against Robert Bozoun, allowing courtiers to search through his estates for land belonging to Coxford Priory. Coke took the Bozouns’ side in this quarrel, too. He may have learned from this piece of ill-fortune: he advised his own children to keep their _____ Robert Bozoun to collect his rents or stand surety for their payment. “Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 46: 130, 240–41 (A. H. Smith, G. M. Baker & R. W. Kenny eds. 1978–79). 30 “Letter Book of John Parkhurst, Bishop of Norwich 1571–75,” Norf. Rec. Soc. 43: 129 (R. A. Houlbrooke ed. 1974); “Musters Returns for Divers Hundreds in the County of Norfolk,” Norf. Rec. Soc. 6: 88 (H. L. Bradfer-Lawrence ed. 1936). 31 John Potter, whom Robert installed at Whissonsett in 1569, drew Puritan approval as “no preacher, but able to exhort in some measure.” Vincent Goodwin, who followed in 1572, wore no surplice and in 1583 he was one of those preachers “not resolved to sign” the undertakings demanded by Archbishop Whitgift. Nicholas Brown, from the Puritan hotbed of St. John’s College, was installed in 1577, and seven years later was likely the “Nicholas Browen MA” suspended for non-conformity. Blomefield at 10: 86; A. Peel, The Seconde Parte of a Register at 2: 125, 2: 146, 244; 1: 242 (Cambridge UP 1915); “Letter Book of John Parkhurst,” Norf. Rec. Soc. 43: 221; John Venn & J. A. Venn, Alumni Cantabrigienses (Cambridge UP 1922). 32 5 Co. Rep. 103a; Bozoun’s Case, 4 Co. Rep. 34b, also reported as Futter and Boroome’s Case, Godbolt 39 (1584). 33 F. A. Inderwick, Calendar of the Inner Temple Records at 1: 396 (London: Sotheran & Co. 1896).

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muniments “secretly from any but whom necessity requires, for many a man enjoyeth his lands and inheritance quietly by secrecy only.”34 Coke followed his father in making a career at the bar, and in showing a quiet appreciation of learning. From his stepfather, Coke may have learned other things: to loathe concealers, to prefer godly men, to briskly do business with any willing client. Those attitudes would shape much of his career. 34

Blomefield at 10: 65; C. W. James at 324.

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chapter 2

Roads South: Norwich, Cambridge, Holborn

It was schooling which took Coke out of the village in which he was born. He left Mileham to attend school in Norwich, moved on to Cambridge to study at Trinity College, finally rode south to London to enroll at Clifford’s Inn and to learn law at the Inner Temple. For Coke, his years in Norwich and Cambridge were critical. He learned Latin well, both the language and the writers. Underneath the drill and the routine, Coke gained a thorough grounding in classical rhetoric. This was the discipline on which the common lawyers drew. It would shape his own definition of law—and, because his audience had been trained in the same intellectual curriculum, it would provide the methodology by which legal considerations became inseparable from constitutional analysis and political action.1 Also important were the issues surrounding his classrooms: the title controversies afflicting the Norwich grammar school, the arguments raised in academic disputes at Cambridge.

The Norwich Grammar School There are few records of Coke’s grammar-school days, but the period echoes throughout his career. The Norwich grammar school charged no 1 Allen Boyer, “Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law Tradition,” International Journal for the Semiotics of Law 10: 3–36 (1997); Barbara J. Shapiro, “Classical Rhetoric and the English Law of Evidence,” in Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn & Lorna Hutson (New Haven: Yale UP 2001), 54–71.

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fees, and was open to all: sons of “esquires, gents, citizens, merchants, priests and possessors of ‘medium fortunes’”; even poor boys, thanks to a gift from the city’s favorite son, Archbishop Matthew Parker.2 Fondly or thoughtfully, Coke seems to have remembered this chance for a start in life. He was not known for alms-giving—in the records of Elizabethan charities, his name is notable for its absence—yet schooling is something Coke did support, irregularly but consistently. He founded a village school near his manor house at Godwick, funded another near Mileham, helped establish other grammar schools at Thetford in Norfolk and Boxford in Suffolk. When Thomas Sutton left a fortune to found a school in London—Sutton’s Hospital, which became Charterhouse— Coke blocked royal attempts to lay hands on the legacy.3 Coke had more than nostalgia to remind him of his time at school. The cathedral close where his old school stood would be the epicenter of a long-running legal wrangle. The Norwich Grammar School, as chartered by Edward VI, charged no fees because of another charter granted by Edward VI, the crown’s re-grant to the Anglican dean and chapter of the lands which had been seized from the Roman Catholic dean and chapter. This was a bungled piece of conveyancing, arguably the worst in the history of the Dissolution. Straightening it out would involve Coke in lawsuits throughout the 1580’s and occupy his time during the Parliament of 1593.4

The Rhetorical Tradition Like the other grammar schools of Tudor England, the school at Norwich was a good, grim place, where little boys learned by rote and recited by heart. “The scholars of the third form,” the school provided, “shall daily say a part in the morning . . . and also their grammar rules in the afternoon as afore. [T]hey shall learn one lecture daily without book and construe and parce the same of Epitome Colloquiorum Erasmi . . . according to their capacities.” The ultimate goal was that the students learn, by sixth-form level, “to vary one sentence diversely, to make a verse 2 H. W. Saunders, History of the Norwich Grammar School at 136 (Norwich: Jarrold & Sons, 1932); David Cressy, “Educational Opportunity in Tudor and Stuart England,” History of Education Quarterly 16: 301–20 (1976). 3 Thomas Fuller, The Worthies of England at 416 (1662; J. Freeman ed. 1952); J. J. Muskett, Suffolk Manorial Families 1: 89 (1905). 4 Diarmaid MacCulloch, Thomas Cranmer at 456–58 (Yale UP 1996); Hassell Smith, County and Court at 266–75; 3 Inst. 191.

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exactly, to endight an epistle eloquently and learnedly, to declaim of a theme simple, and last of all that they may attain to some competent knowledge of the Greek tongue.”5 For as much as twelve hours a day, for approximately 36 weeks a year, and for four to six years, every schoolboy in Tudor England went through similar drills in grammar, rhetoric, and literature. Learning Latin and translating between Latin and English, the schoolboys memorized tropes and figures of speech, learned to identify them, and practiced using them themselves—William Shakespeare, an alumnus of the grammar school in Stratford, employed more than 200 rhetorical devices. The schoolboys were taught the three styles of rhetoric, the five parts of an oration. They mastered set compositions, following models, and learned to balance arguments to construct a thesis.6 In these circumstances, as C. S. Lewis observed, Elizabethan thinkers grew up from boyhood in a world of ‘prettie epanorthosis,’ paranomasia, isocolon and similer cadentia. Nor were these, like many subjects in a modern school, things dear to the masters but mocked or languidly regarded by the parents. Your father, your grown-up brother, your admired elder schoolfellow all loved rhetoric. Therefore you loved it too. You adored sweet Tully and were as concerned about asyndeton and chiasmus as a modern schoolboy is about county cricketers or types of airplanes.7

At Norwich, rhetoric was taught from Quintilian and the Ad Herennium, as well as Cicero’s speeches, letters, and treatise on duties. The Latin writers studied were typical: Virgil, Ovid, Horace, and Juvenal. The master was directed to read Greek writers to the highest form, Homer, Hesiod, Aesop, and Euripides.8 It was unusual for Greek to be part of the grammar-school curriculum; at Norwich, the language was taught because of the scholarly influence of Archbishop Parker. Notable among the texts which was studied by Coke in his school days at Norwich, and by other generations of Tudor youths in school5

Saunders, Norwich Grammar School at 146–53 (quote at 150–51). Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes at 19–65 (Cambridge UP 1999); Brian Vickers, In Defense of Rhetoric at 256–83 (Oxford UP 1988); Joel Altman, The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama at 43–53 (Berkeley: University of California Press 1978). The classic treatment of the Tudor curriculum remains T. W. Baldwin, William Shakspere’s Small Latine and Lesse Greeke (1944). 7 C. S. Lewis, English Literature in the Sixteenth Century, Excluding Drama at 61 (Oxford UP 1954). 8 Saunders, Norwich Grammar School at 147–48. 6

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rooms across England, was the Apthonii Progymnasmata, the Progymnasmata of Apthonius of Tyre, a fourth-century grammarian.9 The Progymnasmata was an ancient text, but it had considerable staying power. Steeped in a reverence for law, overtly slanted against dictatorial or monarchical rule, it foreshadowed many of the conclusions which Coke would preach. The Progymnasmata prescribed a series of exercises, considering the simplest genres first. It began with the fable and the tale. With the chreia and the proverb, the next forms studied, analysis became more complex. The chreia was a wise saying ascribed to an individual; the proverb repeated a general truth. With either of these, mere quotation was not enough. The student learned to hammer home the point, by praising the wisdom of the man who had uttered the chreia or the universality of the proverb’s application—by paraphrasing a point, buttressing it with additional instances, by doubling proof with analogies or contrasting examples. The roots of Coke’s mature style, his ability to make or counter halfa-dozen arguments on a legal issue, began here. As exercises became more complex, such simple homilies shifted into issues of morality and policy. In the exercise called locus communis, the rule of law was portrayed as a counterbalance to despotism. The sample locus communis offered by the Progymnasmata was a speech denouncing a tyrant (apparently a sample piece to be uttered in a court of law). In reading this exercise, students would learn that despotism offended the commonwealth, in which “laws are established among us, and courts of justice are part of our political structure.” They would read that tyranny was to be measured by its interference with law, because “judging is no longer when a despot has gained control.” And their text would conclude on a confident note, with the reassertion of judicial control: whatever temporary power a tyrant might exercise, “the vote of judges will suffice to destroy the entire power of despotism.”10 In the Progymnasmata’s final exercise, students turned to legal issues, arguing whether adulterers should be killed on the spot or taken before a court of law. One obvious lesson was that the law mediated personal pas9 Id. at 147. Translated from Greek to Latin by Rudolph Agricola and Johannes Cataneus, and with further revisions by Reinhard Lorich, the Progymnasmata was the standard text from which Tudor schoolboys worked their way into the rhetorical tradition. Donald Lemen Clark, “The Rise and Fall of Progymnasmata in Sixteenth and Seventeenth Century Grammar Schools,” Speech Monographs 19: 259–63, 261 (1952); Ray Nadeau, “The Progymnasmata of Apthonius in Translation,” Speech Monographs 19: 264–85, 266 (1952). 10 Nadeau, Speech Monographs 19: 271–72.

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sions, another that courts could settle, far better than avengers, the issues of lineage and property which adultery imperiled. Another point was subtler. “The one who kills an adulterer on his own behalf makes himself master of the one who has committed the crime, but the one who turns him over to a judge makes the court of justice master of the culprit. It is better, I presume, that the one judging, rather than the accuser, be the master.”11 Here the classroom learning led directly to courtroom argument. In early modern England, few legal maxims were more widely known or more frequently applied, than the maxim that a man could not be judge of his own cause.12 This maxim, so close to the point rehearsed by the schoolboys, Coke would himself rely on in Bonham’s Case.13 Coke would also have been taught in Norwich to value the forcefulness of freedom of speech.14 Cicero praised the effectiveness of “uncontrolled vociferation.” Certainly Coke absorbed that lesson—his courtroom style was all too often uncontrolled vociferation. However, the “liberty” which Cicero commended to the orator, or the “license” which Quintilian held up for praise, could also be turned to serve the cause of morality, or statesmanship. “It is frankness of speech,” the Ad Herennium stated, “when, talking before those to whom we owe reverence or fear, we yet exercise our right to speak out, because we seem justified in reprehending them, or persons dear to them for some fault.”15 This rhetorical figure, frankness of speech, would flow into the constitutional doctrine of freedom of speech. It underpinned the debates which Coke would join in the House of Commons—debates which questioned Elizabeth’s reluctance to marry, or James’s preference for favorites. To learn from Aesop and Caesar and Cicero, to practice drawing examples from antiquity, led students to consider historical facts as if they were everyday realities. This led irresistibly toward anachronism: Ralegh’s discussion of King David summoning a parliament, or Coke’s insistence that English law had not changed from the days of the Druids. Nonetheless, at its best, the rhetorical tradition produced thinkers who had been trained to balance the abstract against the concrete. It also produced parliamentarians who measured themselves against Cicero and Demosthenes. 11

Id. at 272. D. E. C. Yale, “Iudex in Propria Causa: An Historical Excursus,” Cambridge Law Journal 33: 80–96 (1974). 13 8 Co. Rep. 107a (1610). 14 These observations follow the suggestions of Diane Parkin-Speer, “Freedom of Speech in Sixteenth Century English Rhetorics,” Sixteenth Century Journal 12: 65–72 (1981). 15 Id. at 65–66, citing Ad Herennium at 349–51 (Loeb Classical Library 1939). 12

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Cambridge and Trinity College After Norwich, Coke went to Cambridge. He enrolled at Trinity College in September 1567 and left around the end of 1570, without taking a degree. What is known of Coke’s three years at university comes mostly from ledger records of college expenses, and a curious, suggestive recollection. The latter is more important. Thomas Fuller wrote: It must not be forgotten that Dr. Whitgift (later archbishop of Canterbury) was his tutor who sent unto his pupil, when the queen’s attorney, a fair New Testament, with this message: “He had now studied common law enough, let him hereafter study the law of God.”16

Coke had the bookishness and memory to be a remarkable student, as well as a vanity which would demand attention. Whitgift oversaw the training of a wide variety of students. Some were lordlings like Edward Zouch and George Clifford, but more were gifted fellow-commoners and pensioners (Anthony Bacon, Francis Bacon, Matthew Sutcliffe) and some were industrious sizars who rose to hold college fellowships. Coke would not have been out of place in such a company.17 At Trinity College, Coke deepened his training in the discourse arts. Under a program introduced in 1559, the first year of the curriculum was devoted to rhetoric, the second and third years to dialectics, and the fourth year to philosophy. On the whole, this offered a conservative framework for learning. Most often, Whitgift’s scholars bought Caesar’s Commentaries, Latin translations of Aristotle, and Cicero’s Orations. The preferred logic-book was John Seton’s Dialectica.18 The daily side of Cambridge life, the scholarly traditions and austere accommodations, reflected the colleges’ monastic origins. Students rose in darkness, heard morning prayers, studied in the morning and studied 16

Fuller, Worthies of England at 416. That Whitgift was Coke’s tutor is unprovable but highly credible: where Fuller’s statements can be checked, he has the details right. In 1847–48, R. S. Maitland printed several selections from Whitgift’s personal accounts from the 1570’s. “Archbishop Whitgift’s College Pupils,” British Magazine and Ecclesiastical Register 32: 361–79, 509–28, 33: 650–56. Unfortunately, these records open with a brief reference to May 1570 and effectively survive only from 1572, after Coke left Cambridge. 17 Philip Gaskell, “Books Bought by Whitgift’s Pupils in the 1570’s,” Transactions of the Cambridge Bibliographical Society 7: 284–393 (1977–80). 18 William T. Costello, The Scholastic Curriculum at Early Seventeenth-Century Cambridge at 41 (Harvard UP 1958); Lisa Jardine, “The Place of Dialectic Teaching in Sixteenth Century Cambridge,” Studies in the Renaissance 21: 31–62 (1974); Gaskell, “Books Bought by Whitgift’s Pupils” at 286–89. Coke’s copy of Seton’s treatise on logic is preserved at Holkham. Holkham Catalogue No. 761.

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and disputed the rest of the day. They were sustained by cheap boiled beef, broth, and oatmeal. The poorer scholars, “being without fire,” walked or ran up and down half an hour, “to get a heat on their feet when they go to bed.”19 Red-letter days, on the other hand, brought “very solemn scholastical entertainments,” in which Thomas Nashe saw the humor: how orators spouted jargon and visitors nodded and students cheered and mobbed the dais, crying “mightily in their gibrige, like a company of beggars, God save your Grace, God save your Grace, Jesus preserve your Highness.” And how all parties played their roles, gallantly or stoically, beneath the drip of the English rain.20 On the matriculation rolls of Cambridge University, the future Chief Justice appears simply as “Ed. Cooke,” a pensioner matriculating in 1567.21 The Trinity College buttery records survive, reflecting charges which students incurred. (From these it may be also be possible to determine roughly the periods of a student’s attendance.) The buttery records suggest that Coke lived modestly. The weekly charges recorded for him are mostly measured in pennies and ha’pence, rarely more than a shilling. They are on a par with most other students’ charges, and frequently lower. One figure stands out, a charge of 4s. 4d. for the week which closed one academic term. Coke also seems to have spent more in the autumn of his last year at Trinity. A few “ex commons” entries show up (possibly for another student named Cooke). These suggest that additional charges had been imposed, likely for a minor academic infraction, such as missing an assigned disputation. Coke apparently missed a few weeks, but was soon back in the college halls. It remains unclear whether he was in Cambridge or at home in Norfolk when his mother died, in January 1569. During his last year at Trinity, Coke incurred charges through the middle of the last term, up to the date of what looks like college exercises. Thereafter his charges cease. The college kept him on the rolls for the term’s remaining weeks, but he must already have left Cambridge.22 19 Thomas Lever so described student life in a sermon at Paul’s Cross in 1550. See A. F. S. Pearson, Thomas Cartwright and Elizabethan Puritanism at 5 (Cambridge UP 1925). 20 Thomas Nashe, “The Unfortunate Traveler,” in The Unfortunate Traveler and Other Works (1594; Penguin ed. 1972), 291–96. Nashe sets at Wittenberg a scene he must have witnessed at Cambridge. 21 W. W. Rouse Ball & J. A. Venn, Admissions to Trinity College, Cambridge 1546–1700 at 2: 68 (1913); Cambridge University Archives, Matr. 1, p. 231. 22 Trinity College preserves two volumes of buttery records, Lower Commons 1565–69 (A) and Lower Commons 1567–69 (B). The first provides more information on possible atten-

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Religious Disputes in Coke’s Student Days The Cambridge which Coke knew was a bitterly divided university. In 1565, two years before he came up, the Church of England had moved to ensure that common practices were observed in services throughout the land. Old usages had been maintained: the use of a ring in the marriage service, the sign of the cross in baptism, usages which independent preachers had increasingly renounced. Ministers had been directed to wear churchmen’s customary vestments, the surplice and the square hat. It was on these points that friction rose, because the details had symbolic weight.23 More importantly, the disputes over clerical garb only marked the flash-points of a greater issue: the decision by Elizabeth’s government to enforce conformity across the English church, and not to break sharply with the Catholic past. The government successfully portrayed the dispute as a superficial argument over clerical raiment, masking successfully these larger dimensions of the conflict. To the Anglican mainstream (that is, most bishops and most college heads, but not so many rank-and-file clergymen) vestments and ceremonies reflected the Church of England’s links to a true and unsullied Christian tradition. However, to other believers and ministers, such vestments were the garb of the Church of Rome. The surplice was what Mary Tudor’s priests had worn, less than ten years before, when they watched the fires in Smithfield, and the evangelical believers of England saw in the surplice all that the modern age sees in the jackboot.24 The evangelicals _____ dance. The second volume, while apparently less regularly kept and harder to interpret, provides additional detail on costs and categories of students. Young Edward Coke appears in its pages as “Cooke iu.” for “Cooke junior,” marches across its pages as a pensioner, becomes Cooke “pens. in bachall,” as he moves closer to a bachelor’s degree, while a younger student becomes Cooke iu. During most or all of Coke’s college years, there were two students with the same surname at Trinity. There was an older undergraduate, likely one Henry Cooke, who was present as late as the Michaelmas term of 1568. While Henry Cooke was present, Edward Coke would have been Cooke iu. It is not clear which Cooke is listed in the buttery rolls, only ten names below that of Thomas Cartwright. A third Cooke, a sizar, enrolled in 1569. 23 The following discussion of the Vestiarian Controversy follows H. C. Porter, Reformation and Reaction in Tudor Cambridge (Cambridge UP 1958) and A. F. S. Pearson, Thomas Cartwright. See also Brett Usher, “The Deanery of Bocking and the Demise of the Vestiarian Controversy,” Journal of Ecclesiastical History 52: 434–55 (2001). 24 Patrick Collinson, The Elizabethan Puritan Movement at 65–83 (Berkeley: University of California Press 1967); M. M. Knappen, Tudor Puritanism: A Chapter in the History of Idealism at 187–216 (University of Chicago Press 1939). From another perspective, an English minister who wore the customary black robe and omitted the surplice would effectively be wearing the clerical garb approved by Calvin’s Geneva. During the English Civil War, when Roundhead

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had been called precisians, for their emphasis on Biblical authority and virtuous living. Now, for the first time in history, as they called for refining doctrine and practice, they began to be called Puritans. At Corpus Christi, not long before Coke came up, it had been proposed to smash the stained glass in the chapel. At St. John’s College, one notable evening, a group of students had blocked the chapel doorway, hissing away any worshiper who arrived in a surplice. It was undergraduates who did it, but the college master condoned it. One Sunday morning, while the Vice-Chancellor was preaching in Great St. Mary’s, unknown parties tonsured his horse—shaved off the luckless beast’s mane and tail, to mock its owner for Roman sympathies. The vandalism was not random. The following Sunday, when the Vice-Chancellor walked again to the pulpit in St. Mary’s, he found the horse-hair clippings strewn in the aisle before him, like rushes on the flagstones.25

John Whitgift and Thomas Cartwright Within Trinity College lay the dispute’s epicenter. John Whitgift, the Master of Trinity, when Coke came up, was a slight, dark-haired, sadeyed professor, known for a few highly polished sermons. Whitgift had private means. He effortlessly collected prebends and livings, and blended this quietly gratified ambition with a donnish self-satisfaction. Once, when he heard an upstairs commotion that turned out to be a student hanging himself, Whitgift’s first thought was to complain about the noise. He personally kept track of attendance at chapel. He also ate among the students, “to keep them in a mannerly and aweful obedience, and by his example teach them to be contented with a scholar-like college diet.” For an adept climber, he was oddly introverted. Queen Elizabeth, who called him her “little black husband,” may have sensed hidden strains in his bachelor life; she joked in similar vein about marrying Francis Bacon. Whitgift would always prefer private string-pulling to public debate; would readily treat Puritans more harshly than Roman Catholics; would always be ready to strengthen episcopal power, seldom hesitate to use it. In the end, he would hang men whom he could not convert. And yet Elizabeth saw in him something to like and trust, and in Lambeth, after _____ troops took a cathedral town, they routinely mocked high-church ceremony by parading in looted surplices and copes. 25 Porter, Reformation and Reaction at 114–22.

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reaching the full height of his power, Whitgift ate with the poor in the charity kitchens as once he had dined with the Trinity scholars. He could lead by example as well as authority. This was the man, the Master of Trinity and Archbishop of Canterbury, who was young Edward Coke’s tutor.26 The man who would be Whitgift’s greatest opponent, off and on over the next twenty years, was also at Trinity when Coke arrived, a college fellow named Thomas Cartwright. Cartwright held advanced Protestant views. He had left Cambridge during Mary’s reign, returned and prospered under Elizabeth, seen front-line service as a chaplain in Ireland. In 1569 Cartwright was named Lady Margaret Professor of Divinity, which marked him as one of England’s most prominent Puritan divines. He reached no higher, at least in the world’s eyes. In 1570 he would lose his professorship. By 1571 he would be an exile, by the 1580’s a conspirator, by 1591 a prisoner in the Fleet, harried and questioned by Whitgift’s inquisitors. And nonetheless, never quite defeated. Coke knew Cartwright well, too. Anne Coke, his younger sister, married his Trinity classmate Francis Stubbes. Francis Stubbes had a sister, Alice Stubbes; Alice Stubbes married Cartwright. My brother’s brother, the Queen’s Attorney could have called the Puritan leader. Within the Vestiarian Controversy—as the pranks and squabbles came to be called—darker themes had begun to sound. By 1568, Coke’s second year at Cambridge, Archbishop Parker had ordered that rooms be searched for suspected books. At Corpus Christi, when the Latin liturgy began to be read, a group of fellows marched out of the chapel. Latin service is the pope’s dregs, one called back from the doorway. An inspiring preacher, Cartwright had found an audience among the scholars. When he preached in Great St. Mary’s, it is said, those who came to hear him filled the church, and the sexton opened windows so that crowds outside could hear. Within Trinity, he preached so hotly against the surplice, that at one well-remembered service, a high-water mark of Puritan influence, the entire college turned out to hear him, with only three wearing the mocked-at vestment. 26 Id. at 169–73. In the mid-1590’s, for example, when hardline theologians demanded that the Church of England adopt rigorously Calvinist views, set forth in a document called the Lambeth Articles, Whitgift played a skillful double game. He revised the articles, slightly, and endorsed them: asserting personal control of a divisive initiative while signaling to James VI of Scotland that he shared the king’s religious outlook. E. Gilliam & W. J. Tighe, “To ‘Run with the Time’: Archbishop Whitgift, the Lambeth Articles, and the Politics of Theological Ambiguity in Late Elizabethan England,” Sixteenth Century Journal 23: 325–40 (1992).

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In 1570, Cartwright began his most important series of sermons. He took as his text the early chapters of the Book of Acts. Going beyond questions of dress and ceremony, he held up as a template for organization the practices of the “primitive church,” and called for scrapping whatever the New Testament could not support. This meant, in short, eliminating the Church hierarchy and shifting power to the congregation. Most notably, Cartwright urged suppressing the name and positions of archbishops, bishops, archdeacons, and deans—every office except those of pastor and deacon, which could be identified in the early chapters of the Book of Acts. The government of the church, Cartwright further argued, should be a matter for the minister and presbytery of each congregation, with ministers chosen by the congregations, and not selected by the church hierarchy.27 Whitgift may have sensed a dangerous shifting of allegiances. Other preachers had begun to echo Cartwright. The master of Pembroke College had sabotaged the hunt for suspicious books; the master of Corpus Christi had revealed unexpected Puritan sympathies. The professors and fellows were increasingly divided. In June 1570, when conservative dons denied Cartwright his doctorate in divinity, the Puritan dons showed their strength by vetoing, successfully, each and every candidate proposed for the university’s governing board. At exactly this juncture, Whitgift struck. Over the summer, which shows Whitgift’s skill as an academic politician, the Master of Trinity and his allies in the government pushed through a new set of university statutes. The new decrees enhanced the power of the Vice-Chancellor and the college masters. For anyone preaching against religion, “as received and established by public authority,” the university government could require that the offender recant, and banish him from Cambridge if he refused.28 In the fall of 1570, Whitgift began a formal inquiry into the disturbances. Cartwright refused to take back what he had preached in the spring. From this point, despite protests, the process moved inexorably forward. In November, Whitgift was elected Vice-Chancellor. In December, Cartwright was deprived of his professorship. Fearing imprisonment—Whitgift as Vice-Chancellor enjoyed broad new powers allowing such action, under the revised university statutes—Cartwright fled to Geneva. This must have been at very nearly the same time that Coke left Trinity College and headed to London. 27

Porter, Reformation and Reaction at 140–42; Collinson, Elizabethan Puritan Movement at

112. 28

Porter, Reformation and Reaction at 174–77.

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Student and Alumnus Cambridge, mea alma mater, Coke wrote, and also, that the young law student “most commonly cometh from one of the universities.”29 The training he considered invaluable. At university the student could “learn the liberal arts, and especially logic, for that teacheth a man not only by just argument to conclude the matter in question, but to discern between truth and falsehood, and to use a good method in his study, and probably to speak to any legal question.”30 Nonetheless, Coke may have had a double meaning; his college days had been memorable for what went on outside the study and lecture hall. The controversies of his student days may have been the overture to his own turbulently political career. (If all Trinity College turned out to hear Cartwright, and all but three worshipers defiantly left behind their surplices—given Coke’s Puritan connections and sympathies, is it not likely that he was among the protesters?) The student pranksters of the 1560’s matured into militant preachers, just as the academic loyalists rose to control the Church of England; and Coke would work as lawyer and judge in the same decades that the preachers and the bishops sparred with each other across the courts of England. Thomas Hobbes well understood this connection. It was the university men, he argued, the divinity masters and energetic young rhetoricians, who were to blame for broader conflicts, even civil war: The universities have been to this nation, as the wooden horse was to the Trojans . . . . For such curious questions in divinity are first started in the universities, and so are all those politic questions concerning the rights of civil and ecclesiastical government; and there they are furnished with arguments for liberty out of the works of Aristotle, Plato, Cicero, Seneca, and out of the histories of Rome and Greece for their disputations against the necessary power of their sovereign . . . . The core of the rebellion [was] the universities.31 29

Co. Litt., Proeme; Preface to the Third Part of the Reports. Co. Litt. at 235b. 31 In histories of the classical world, Hobbes observed, “the popular government [had been] extolled by that glorious name of liberty, and monarchy disgraced by the name of tyranny . . . . Therefore I despair of any lasting peace among ourselves, till the universities shall bend and direct their studies to the settling of it, that is, to the teaching of absolute obedience to the laws of the king.” Thomas Hobbes, Behemoth: The History of the Causes of the Civil Wars in England, reprinted from The English Works of Thomas Hobbes (W. Molesworth, ed., 6 vols. 1840), in Philip Taylor, ed., The Origins of the Civil War at 26–28 (Boston: D. C. Heath 1960). 30

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Consider again the echoes which Thomas Fuller caught: Whitgift sent Coke “when the queen’s attorney, a fair New Testament, with this message: ‘He had now studied common law enough, let him hereafter study the law of God.’” A fair New Testament was a safe, innocuous gift—the sort of gift any archbishop might give any attorney-general—but its blandness was deceptive. By the 1590’s, when Whitgift must have sent his Testament, Coke had become a thorn in his old tutor’s side. The Attorney-General was not a Puritan, but he had more Puritan friends than the Archbishop would have liked: clients, relatives, grateful preachers, activist lawyers whose pamphlets he quoted. Within the courts, the struggle between the hierarchy and the godly grew every year more bitter. Whitgift’s light-hearted wish, that his old pupil might turn from the common law to God’s law, had undertones of admonition and alarm.32

Contemplation of Marriage On the last day of February, 1569, Lord Keeper Sir Nicholas Bacon dictated a letter to his son, young Nicholas Bacon. Some family matters were on his mind. Son, because your letters came to my hands at the Court I am not able to give such answer to the matter concerning young Mr. Coote as you desire to have until such time as I have spoken with my brother which I think will not be afore the next term. And I make the less haste, because he offereth but forty pounds presently a year with his son and but a hundred pounds after his death for five hundred marks to be given in marriage which offer (methinks) hath no reason in it.

It seems that a match was being considered, involving the Lord Keeper, his brother, a marriageable woman (Bacon’s niece?) and a young man seeking a marriage. This young man’s interests are being served by young Nicholas Bacon, who would be Edward Coke’s lifelong friend. The young suitor’s name is likely Coote; but the name has also been read as 32 Whitgift worked as a talent-spotter for the Church of England, trying to buy support for the via media. His biographer wrote: “If he found a scholar of extraordinary gifts, or hopes, that out of wants, grew discontented, and inclined to Popery, or Puritanism . . . him would he gain both with supplies of money out of his purse, and preferments of his own gift.” Sir George Paule, The Life of the Most Reverend and Religious Prelate, John Whitgift at 62 (1612) (quoted at Gilliam & Tighe, Sixteenth Century Journal 23: 335). Did Whitgift choose Coke as his student, to try to win to the Church a bright young man who, he presciently suspected, might otherwise prove a hammer of prelates?

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Cooke. If Coke was bidding for the hand of the Lord Keeper’s niece, he had raised to new levels his family’s tradition of marriage ventures.33 It is even possible that Coke entertained the idea of an even grander alliance. Thomas Howard, Third Duke of Norfolk, had revised his will in 1554 to make a last-minute bequest of £100 to Jane Goodman, a young girl living in his London house, and naming Thomas Gawdy, Coke’s kinsman, to serve as one of her guardians. Jane Goodman may have been the Third Duke’s natural daughter. She remained in the Howard household until the collapse of the Fourth Duke’s fortunes in 1571, helping to care for the Howard children “in an honored position as a kind of unofficial aunt.”34 Little more is known of Mistress Jane. Her trail has not been traced amid the wrack of the Howard dynasty. It does not seem, however, that she would have known any safer refuge than that of her family establishment. Over the next few years, the Gawdys moved vigorously across the wreckage of the Howards’ fortunes, shoring up fragments of the Fourth Duke’s ruin. Coke worked with them as he gained experience. He would have known familiarly the members of the Howard household, and he may have kept a memento of those years. Curiously, among the paintings in Coke’s collection at Hatton House, listed between likenesses of Lord Burghley and Archbishop Whitgift, is catalogued a portrait identified simply as “Jeanne Goodman.”35 Was this a painting of the same young woman? And for what reason did Edward Coke, who was young at the time Jane Goodman was young, retain her picture to the end of his life?

Arrival in London When Coke set off for London, it is said, he set off with only the horse he rode, a rapier, ten pounds sterling, and a diamond ring inscribed “O Prepare.”36 The motto is consistent with Coke’s ambition and the austerity is consistent with his family’s husbanded resources. He likely went 33 Diarmaid MacCulloch, who is currently editing the Bacon papers at Redgrave Hall, cites strong textual and historical reasons for preferring Coote. Cooke was the reading chosen by E. R. Sandeen, who first edited Lord Keeper Bacon’s correspondence. Letter No. 45, Univ. Chicago Bacon MS collection (Sir Nicholas Bacon to Nicholas Bacon II, 28 February 1569). Thanks are due to R. H. Helmholz for supplying copies of these materials. 34 Neville Williams, Thomas Howard, Fourth Duke of Norfolk at 32, 216 (New York: E. P. Dutton 1964); Bindoff, House of Commons 1509–1558, “Thomas Gawdy I.” 35 C. W. James at 317–18. 36 C. W. James at 5.

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back to Mileham in the last chilly weeks of 1570. He must have talked with his sisters and Robert Bozoun. He may have looked over the family’s ledgers, arguing that he was still eighteen, and that payments received at this year’s harvest could rightly pay for him to learn the law in years ahead. He recovered his father’s law-books from Master Crowe. He wrapped up those law-books, and his mother’s law-books—lapped them in old scraps of blanket perhaps, wrapped those in oilcloth, then slid each packet into one of his saddle-bags. The journey to London, over new terrain, was probably the longest Coke had ever made. It was the first month of 1571, a good month for new ventures, but meantime the coldest and muddiest. Coke must have considered that he was traveling towards a city from which his father had failed to return. Yet he must also have counted on a friendly welcome— his cousins Thomas Gawdy and Francis Gawdy were there, prominent lawyers in line for higher honors—and his sense of arrival is clear. 21 die Januarii anno domini 1571, I came to London first, and was admitted into Clifford’s Inn, Coke wrote—shifting to first person and breaking into English, as if suddenly coming awake.37 37

Vade Mecum at 111.

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chapter 3

Learning the Law

The day that he arrived in London, Coke became a student of the law. His lifelong friendship with the legal inns of Holborn, the centers of the English bar, would serve and comfort him over the next sixty-three years, longer than any human friendship he maintained. The relationship began on that January day when Coke dismounted from his horse in front of Clifford’s Inn. It ended only in September 1634, when King Charles’ men broke open the dying judge’s chambers at the Inner Temple, carrying away a wagon-load of manuscripts. Clifford’s Inn, where Coke enrolled on January 21, 1571, was an inn of chancery. Coke belonged to the last generation of common lawyers who would know the inns of chancery as a routine part of legal training. He wrote that a university man would “most commonly” begin at an inn of chancery. That had been his own route, and he kept to the path—moving on, after a year at Clifford’s Inn, to the inns of court, enrolling at the Inner Temple on April 24, 1572. He bought a copy of Plowden’s Commentaries and a copy of Littleton’s Tenures, both new editions. He began keeping a notebook. On a blank recto page he wrote a heading, Edwarde Coke, and underlined it with a flourish. Ubi mel ibi muse, he added, Ubi uber ibi tuber. On the same page he recorded his arrival in London. He switched pens, then. He sharpened the nib of the second quill and reached for a different bottle of ink. He boxed that memorandum in vibrant red and drew a stylish crown above it.1 1

Preface to the Third Part of the Reports (1602); Vade Mecum; BL Harl. MS. 6687A, fo.17r.

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Clifford’s Inn and the Inner Temple Thirty years after he began his studies, Coke surveyed the institutions through which he had made his way: For the young student which most commonly cometh from one of the universities, for his entrance or beginning were first instituted and erected eight houses of chancery, to learn there the elements of the law: that is to say, Clifford’s Inn, Lyon’s Inn, Clement’s Inn, Barnard’s Inn, Staple Inn, Furnival’s Inn, Davis Inn, and New Inn: and each of these houses consist of forty or thereabouts. For the readers, utter-barristers, moot-men, and inferior students, are four famous and renowned colleges, of houses of court, called the Inner Temple, to which the first three houses of chancery appertain: Gray’s Inn, to which the next two belong: Lincoln’s Inn, which enjoyeth the last two saving one: and the Middle Temple, which hath only the last. Each of the houses of court consist of readers above twenty: of utter-barristers above thrice so many: of young gentlemen, about the number of eight or nine score, who there spend their time in study of law, and in commendable exercises fit for gentlemen.

With Serjeant’s Inn, Coke considered, these houses “altogether do make the make most famous university for profession of law only, or of any one humane science, that is in the world.”2 At the time Coke knew them, the inns of chancery provided “a kind of first stage in legal education, after which young men who had become ‘proficient therein as they mature’ were ‘absorbed into the greater houses of the academy,’ the inns of court.”3 The reason for the first stage, as Thomas Barnes has written, “was that the fledgling barrister would learn something about the chirographic and procedural, the clerical and ‘paper’ side of the law.” For Coke, his year at Clifford’s Inn “reinforced his almost medieval scholastic bent, enabled him to perceive the law from the bottom up, and taught him all of the method and some of the skills of the legal draftsman.”4 However, a professional distinction was emerging within the English legal profession. On the one hand there were the attorneys, men recognized by the courts as empowered to act in the names of their clients, who also dealt in the proce2

Preface to the Third Part of the Reports. C. W. Brooks, Admissions Registers of Barnard’s Inn 1620–1869 at 19 (Selden Society, Supplementary Series Vol. 12, 1995), citing Sir John Fortescue, De Laudibus Legum Angliae at 118– 19 (S. B. Chrimes ed. 1942.) 4 Thomas Barnes, “Introduction II,” Coke’s Commentary Upon Littleton at 5–6 (Legal Classics Library, Gryphon Editions 1985). 3

Learning the Law dural aspects of litigation, and who, then, like modern solicitors today, were responsible for collecting evidence and organizing a case before it came to a hearing. On the other hand, there were the pleaders, or serjeants at law, who were learned in the more doctrinal aspects of the common law and who enjoyed a monopoly right of audience which entitled them to plead orally before the Court of Common Pleas . . . By the end of the sixteenth century the education of [such pleaders] had been associated for at least two hundred years with the inns of court, and those who progressed to the rank of utter barrister within one of the four inns were recognized as qualified to plead before those courts such as Chancery, Star Chamber, the Court of Wards, the Exchequer, and, especially, the Court of King’s Bench, where the monopoly of the serjeants did not run.5

Beginning in 1556, the leadership of the inns of court began to exclude attorneys and solicitors from membership. These efforts left the inns of chancery as institutions of the second rank, “the logical alternative for attorneys who wanted to join a legal inn in London.” During Coke’s lifetime, this division would harden. Coke himself was a master at gathering evidence and organizing a case, and very few cared more about procedure—but he had a pleader’s professional jealousy, and that perhaps exacerbated this division. Throughout the inns, students learned law by arguing law.6 They talked over issues informally and debated them in exercises. They filled notebooks with lists of precedents, working through each subject, recording what they had heard and amassing material for use in future disputations. At the inns of chancery, apparently, the curriculum was basic drill-work. Students listened to daily to writs being read, prepared cases for discussion at the commons dinner tables, and recited “perfectly without a book,” all on pain of fine.7 At the inns of court, new modes of instruction were layered on. Closer now to the workings of the law, they wrote down what senior utter-barristers argued, in the same way that they recorded colloquies at the courts in Westminster Hall. Twice a year, each inn staged a reading, a lecture series in which an eminent practitioner walked students clause by clause through the text of a statute.8 5

Brooks, Barnard’s Inn at 18. Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts 1590–1640 at 116– 24 (London: Longman, 1972), and J. H. Baker, “Introduction,” The Reports of Sir John Spelman at 2: 127–32 (Selden Society, Vol. 94, 1977). 7 Baker, Spelman’s Reports at 2: 128. 8 At the inns of court, a student began in clerk’s commons, and after about two years became a full member as an “inner” barrister. After three or four years more, he became an “outer” (or “utter”) barrister. Id. at 2: 129. 6

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Most important, the inns conducted moots, pleading exercises. As early as the 1450’s (the student days of Coke’s great-grandfather Andrew Pawe) the students had practiced “bringing in” writs and “the declaration of the opening.”9 The law’s apprentices could flatter themselves that their training was rooted in antiquity. Sir Thomas Elyot wrote: In the learning of the laws of this realm, there is at this day an exercise, wherein is a manner, a shadow, or figure of the ancient rhetoric. I mean the pleading used in court and Chancery called moots, where first a case is appointed to be mooted by certain young men containing some doubtful controversy . . . . The case being known, they which be appointed to moot, do examine the case, and investigate what they therein can espy which may make a contention, whereof may rise a question to be argued (and that of Tully is called constitutio, and of Quintilian status causae). Also they consider what pleas on every part ought to be made, and how the case may be reasoned.10

The moot prefigured the modern academic workshop. All involved learned—the inner-barristers who researched the issue, the “moot-men” who argued it, the utter-barristers who debated and ruled. In the Inner Temple Coke knew, moot court argument might be more extensive. In a sophisticated exercise called the imparlance, students might hammer at a case the length of an entire term of court. It was in an Inner Temple moot, apparently, that Coke’s abilities first drew notice. It is said that, with “quickness of penetration and solidity of judgment,” he argued something called “the cook’s case,” asserting that the Inner Temple cook had failed in his duty to prepare edible food. This may be a bad pun or a perennial student complaint. The whole story may be apocryphal: Coke would be plagued in life and afterlife by unfunny jokes which punned on his name.11 On the other hand, there was a 9 E. W. Ives, The Common Lawyers of Pre-Reformation England at 39–40 (Cambridge UP 1983); A. W. B. Simpson, “The Source and Function of the Later Year Books,” Law Quarterly Review 87: 94–118 (1971). 10 Sir Thomas Elyot, The Book Named the Governor at 124 (1531; Columbia Teachers College ed. 1969). 11 Lord Campbell, Lives of the Chief Justices at 1: 345 (Northport, New York: Edward Thompson Co. 1894). It was variously said that the Lord Chief Justice’s second wife had married a Coke only because she had “flesh in the pot,” i.e. was pregnant—that his cell in the Tower was labeled, “This room hath long wanted a Cook”—or, with regard to a lifelong rivalry, “that the Bacon would be too hard for the Coke.” The only really clever change rung on this theme was by Dorothy L. Sayers, then a youthful advertising copywriter, who enlivened an ad campaign for Colman’s Mustard by dreaming up “Lord Bacon of Cookham.” Miss Sayers, who drew epigraphs for her novels from Coke’s Institutes, had for her grandfather a Victorian curate who served Tittleshall.

Learning the Law

“cook’s case” which would have been worth arguing: whether quirks in English law conferred Parliamentary immunity on the cook of the Inner Temple. In 1532, because the Inner Temple cook served the Speaker of that year’s Parliament, the cook had been able to avoid arrest for debt, “execution upon a statute of the staple.”12 The point must remain open, likely forever. Yet it is tempting to consider that Coke’s last public appearance, as a Member of the Commons defending the rights of his house, might have had this symmetry with his career’s beginning.

Coke’s Notebooks Coke began to keep a commonplace book, his personal record of case reports. He was doing this before he turned twenty, in the first winter weeks of 1572. Fifty-six years later, when his Commentary Upon Littleton discussed voucher and assignment, he cited a Common Pleas decision from Hilary term in the fourteenth year of the Virgin Queen’s reign, which he himself had “heard and observed.”13 In 1579 he began making longer case reports. He made marginal comments, abstracted cases from Serjeant Bendlowes’ reports, briefed Year Book cases, prepared materials on uses, and began keeping records of court decisions. He used blank octavo sheets, good quality paper, filling page after page with topic headings and collecting cases underneath. Pleadings. Office et officers. Parlement et statutes. Assize. Averments. Accords. Baron et fem. Counterpleas al common ley. Just as the moot was a shadow of the ancient rhetoric, so the lawyer’s notebook was a specialized form of the orator’s commonplace book.14 For the rhetorician, the commonplace book was a journal in which an orator copied down exempla, material to be used in later orations. Exemplum meant example or instance: exempla could be fables, apothegms, parables, proverbs, suggestive phrases, virtually anything that could be used to persuade. All students of rhetoric kept commonplace books, and the lawyers of Tudor England, drilled in rhetoric throughout their years of grammar school and university, carried over the technique into their professional training. The notebooks which inns of court students kept, 12

Bindoff, House of Commons 1509–1558, “Thomas Audley I.” Co. Litt. 384b–385a. 14 Boyer, “Sir Edward Coke, Ciceronianus,” International Journal for the Semiotics of Law 10: 16–19, 27–29. 13

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Sir Thomas Elyot observed, included “the places whereof they shall fetch their reasons, called of orators loci communes.”15 Like the apprentice orators—they were themselves a species of apprentice orator—the law students used the term exempla. Some knew it as a term from civil or Roman law; more of them knew it as the ensamples of which the judges and benchers spoke in Law French. They knew that ensamples and exempla were single precedents or occasional decisions, opinions entitled to respect. Coke himself would write that “the reporting of particular cases or examples, is the most perspicuous course of teaching the right rule and reason of the law. . . And the glossographers of the rule of the civil law, do often reduce the rule into a case, for the more lively expressing and true application of the same.”16 The legal commonplace book remained a document intended to assist its maker in speaking copiously, fluently, eloquently, persuasively. And the rhetoricians’ concept of the exemplum—the relevant, analogous instance which seems exactly and persuasively on point—shaped the lawyers’ emerging understanding of the case. Coke’s first law-books were probably those which his parents had owned—Glanville, a Statutes at Large, a Book of Entries, and a Year Book of Edward III. Very soon he added more.17 He acquired a copy of St. German’s Doctor and Student. (Amor patientiam non patitur, he inscribed it; the law was his new mistress and he minded not that she was jealous.) In his new edition of Littleton’s Tenures, published in 1572, the year he moved to the Inner Temple, Coke began to make notes in the margins. No casual, conventional action ever affected more the course of legal history. Edmund Plowden, in 1571, had brought out his celebrated Commentaries. The Commentaries, carefully chosen and studiously polished, were the first case reports to be published by an eminent lawyer in his own lifetime. Coke absorbed the themes which underlay their selection. The reporters of the Year Books had been obsessed with pleading points, rather less concerned with what the judges finally ruled. Plowden 15 Elyot, Book Named the Governor at 125. See further Boyer, “Sir Edward Coke, Ciceronianus”; Shapiro, “Classical Rhetoric and the English Law of Evidence”; Richard Schoeck, “Lawyers and Rhetoric in Sixteenth-Century England,” in Renaissance Eloquence: Studies in the Theory and Practice of Renaissance Rhetoric, ed. J. J. Murphy (Berkeley: University of California Press 1983), 274–91; and Alessandro Guiliani, “The Influence of Rhetoric on the Law of Evidence and Pleading,” Juridical Review 62: 216–51 (1969). 16 Preface to the Sixth Part of the Reports (1607). 17 Holkham Catalogue Nos. 379, 425, 428, 383, 406, 394; J. H. Baker, The Legal Profession and the Common Law: Historical Essays [LPCL] at 181 (London: Hambledon Press 1986).

Learning the Law

was a devious and careful pleader himself, but he brought to the law a new concern with cases that decided issues. His reports, he wrote, excel any former books of reports in point of credit and authority, for other reports generally consist of the sudden sayings of the judges upon motions by the serjeants and counselors at the bar, whereas all the cases here reported are upon points of law tried and debated . . . . There is no record entered but such upon which there was either a demurrer in law, or a special verdict given, concerning a point of law, in both which cases the matter was thoroughly sifted and debated at the Bar and at the Bench also, and in the end either approved or disapproved.18

The idea of making law probably caught the imagination of a young apprentice of the law. Coke valued his copy of the Commentaries, metaphorically and literally. He carefully recorded the impact it had made to his student budget, an outlay of eleven shillings.19

Life and Law: Self-Portraits Each moot ended with the moot-men offering the judges a slice of bread and a flagon of beer, which points to the other side of student life. The inns attracted young men from the shires, who came to London to learn the land law, chase city girls, and brave their way through taverns: sons of the gentry, ancestors of fraternity boys. The Christmas revels, “a curious mixture of horseplay and carefully preserved medieval tradition,” were sometimes traced to Saturnalia. In Henry VII’s day, during the revelry, one inn’s Lord of Misrule had accidentally killed a bystander. Over the decades Coke spent at the Inns, students were warned against gambling, debt, sneaking stray women into their rooms, and carrying weapons. Thomas Nashe suggested a logical career for the boisterous, penurious law student: turn pirate. The inns of chancery were considered particularly undemanding. Their best-known alumni remain Sir John Falstaff and his boon companion Justice Robert Shallow, “once of Clement’s Inn, where I think they will talk of mad Shallow yet.”20 18

Edmund Plowden, Preface to the Commentaries (1571). Other books which Coke probably purchased early in his career include Statham’s Abridgement, Brooke’s Abridgement, Dyer’s reports, a copy of Stanford’s treatise on the prerogative, and another copy of the Statutes at Large. Holkham Catalogue Nos. 389, 392, 396, 411, 426. 20 Baker, Spelman’s Reports at 2: 129–30; Prest, Inns of Court at 137–41; Thomas Nashe, “Pierce Penniless” (1592), in The Unfortunate Traveler and Other Works at 66; William Shakespeare, 2 Henry IV iii, 2/14–29. 19

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Some of the high spirits were sublimated. A good deal of poetry was written at the inns, by young Walter Ralegh of the Middle Temple, for instance.21 Francis Bacon used a holiday masque at Gray’s Inn to float a call for law reform. The theatre was a perennial distraction. The Comedy of Errors and Twelfth Night were staged at the inns, possibly also Troilus and Cressida. In the next generation, the students would be lampooned for preferring “Shakespeare’s plays instead of my lord Coke.”22 In the inns’ low life and high culture, Coke seems to have taken little interest. He knew his Ovid and Horace, he had memorized chunks of Virgil, he prized his copy of Chaucer, he made notes on Sir Thomas More’s Utopia—and his cultural interests seem to have halted there, just short of the vibrant precincts of Elizabethan London. There is no sign that he spent an afternoon at a play. On the other hand, he clearly spent many mornings in Westminster Hall, listening to the serjeants argue and the judges talk. Beneath the headings in his notebook, to the foot of each page and out into the margins, the notes sprawled and swirled in a dense Tudor cursive. John Baker has written: He had soon caught the eye of the older lawyers and so it is no surprise to find him noting what he had been told by old Plowden, or the SolicitorGeneral, or a friendly serjeant, or by Wray C.J. “veniendo de Westminster.” The chronological arrangement of the notes, with a flourish of red ink at the start of each new term . . . and continuous headlines indicating the term and year, show that Coke wrote all this down contemporaneously. The notebooks were also used as a commonplace, in which Coke would write personal memoranda, obituaries, notes on the royal prerogative and on administrative practices, historical notes from ancient records, notes on the meanings of statutes, particularly of recusants, and numerous notes of things Popham C.J. had told him.23

Coke later wrote that he had begun reporting cases in the twenty-second year of Queen Elizabeth’s reign, between October 1579 and October 1580. He had been called to the bar on April 20, 1578, during Easter term. On the first Sunday of Easter term 1579, he took up an early honor, a threeyear readership at Lyon’s Inn. 21

A. L. Rowse, Ralegh and the Throckmortons at 132 (New York: St. Martin’s Press 1962). Daniel Coquillette, Francis Bacon at 34 (Stanford: Stanford UP 1992); A. L. Rowse, William Shakespeare at 125, 340 (London: Macmillan, 1963); Prest, Inns of Court at 138, citing Francis Lenton, Characterismi Sig. F4 (1631). Certain zealous barristers-in-training may have shared Chief Justice Popham’s love of a good bear-baiting. 23 Baker, LPCL at 185. 22

Learning the Law

It is around this juncture that Coke’s case outlines become fuller. Benchers began to offer Coke materials. “Jo: Stanley generosus” supplied him a Year Book and a copy of Fitzherbert’s Abridgement. A volume of Serjeant Bendlowe’s manuscript reports was lent to Coke by that master himself. He acquired three volumes of handwritten notes from John Thurston, another Templar, who had given readings before Coke started grammar-school. Plowden lent Coke a manuscript report of Sir John Baker’s Case that was better than anything in print.24 Coke was eager and officious in taking notes, with a precocious belief in the importance of his project. De legibus, he wrote at the top of one notebook page, and collected beneath it the opinions of notable predecessors: Bracton, Cicero, St. German, and what Sir Thomas More, “en son livre de utopia,” had said about simple theft and gorgeous apparel. On the title page of Plowden’s Commentaries, Coke wrote four lines of doggerel: By learning he whiche els hath nought From lowe estat to highe is broughte. And oft ye rude which treasures have of Cresus riche, becom a knave. The corners of his ambition were already manifest: the bookishness, the tightfistedness, the determination to rise, the readiness to see others fall. In another early law-book, Brooke’s Abridgement, he penned an even sharper self-portrait: Succedo arduus Eduardus cucus, an anagram. I Edward Coke succeed through hard work, this may be read, or To be Edward Coke is to work hard.25 He searched through a City vestry, and found out what he could about his father’s death: Robertus Coke, armiger, de banco hospicii de Lincolnes Inne, obiit in eodem hospicio, 25° Novembris, anno domini 1561, anno 4° Reginae Elizabethae, et sepelitur in cancella ecclesiae Sancti Andrae in Holborne, ubi instrumenta vocata organes nuper stabant. Then he added, vide the churchbook of the same parish, with the calm precision of a man who has finally set something in order.26 Coke also recorded in his notebook what a chief justice wore as a mark of office: “choller of SS con’ 53 SS and knotes, foure percullis and two roses.”27 Did he write that down when he was named chief justice, or had he recorded it in his student days? The rhetorician who amassed exempla was said to acquire a store of phrases, “ornaments of speech.” Yet this did not imply that ornamenta24

Vade Mecum; Holkham Catalogue Nos. 388, 390; Baker, LPCL at 184–87. BL Harl. MS 6687A, fo. 7r–7v; Holkham Catalogue Nos. 394, 392. 26 Vade Mecum at 110–11. 27 Baker, LPCL at 185. 25

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tion meant only superficial flourishes. Ornamentum was the Latin term for the gear a warrior carried on his battle-harness. Coke had acquired a plentiful store of ornamentum, and occasion would soon arise to make use of it.

Lord Cromwell’s Case In 1581, Coke litigated his first case in the King’s Bench, and prevailed. It was a Norfolk case, from North Elmham parish east of Mileham, a classic case of a squire against a parson.28 Edward, Lord Cromwell, was at odds with the rector of North Elmham, Edward Denny. To harass the parson, he lent aid to two unlicensed ministers—godly men, vociferously so, who preached the gospel and denounced the church authorities, breaking the peace of the sanctuary. Words were exchanged, and Reverend Denny denounced his lordship: “You like not of me,” he charged, “since you like those that maintain sedition.” Lord Cromwell brought a defamation suit. Denny retained Coke. In a critical early exchange, the young lawyer out-researched his opponent. He found a flaw in the pleadings: Lord Cromwell’s lawyer, working from an inaccurately translated English abridgement, rather than the actual Latin text, had misquoted the text of the relevant statute, De Scandalis Magnatum. Lord Cromwell was forced to replead. When the case resumed, Coke was ready to file a demurrer—deny outright that Lord Cromwell had a case. He suggested that Denny’s words, on their face, could not be read as slanderous—but the judges stopped him. Judge Thomas Gawdy was on the bench, and may have felt that his young cousin had already been clever enough. The judges suggested that Coke plead and justify, explain Denny’s words, “or demur at your peril.” Coke knew that if he lost the demurrer, the court would admit as fact every allegation which Lord Cromwell had pleaded. He took the hint. Acknowledging what Denny had said, he provided the context. In denouncing sedition, he argued, Denny had attacked Lord Cromwell’s support for men who attacked the Book of Common Prayer, not implied any broader or deeper disloyalty. The court ruled in Denny’s favor. From this position of strength, Coke was able to force a settlement. 28

Lord Cromwell’s Case, 4 Co. Rep. 12b (1581).

Learning the Law

Coke and the Howard Family Lord Cromwell’s Case was the first of many lawsuits offered to Coke by Norfolk, his tough, litigious native shire, where freeholders pressed lawsuits as tenaciously as their ancestors had pursued private wars. Of the Norfolk families who put their business in Coke’s hands, the highest-born were the Howards, who had overshadowed the county as Dukes of Norfolk. Thomas Howard, the Fourth Duke (1538–72), had been the premier peer of the realm. The richest nobleman in England, he had maintained palaces at Norwich and Kenninghall which rivaled Hampton Court. Throughout the shire, the Duke had named magistrates and nominated candidates whom dutiful burgesses returned to the House of Commons. The Duke, and not the crown, made payments due to the pensioned-off survivors of Norfolk religious houses; his influence gave boroughs the ability to brush aside demands by royal officials.29 In western Norfolk, across the hundreds of Launditch and South Greenhoe, the Coke family’s native country, the Duke held a liberty, a territorial franchise within which his personal authority, rather than the crown’s, supplied the working power of government. Within his liberty, the Duke appointed officials, kept all fines, and maintained his own prison. His bailiffs, not the sheriff, returned and executed all writs. Among residents of the Duke’s liberty, Professor A. H. Smith has written, “undoubtedly many of these people knew little of law and administration beyond that implemented by the Duke’s officials. In a very real sense he was their prince.”30 The Duke’s princely power depended on the Duke’s officials. The ducal household was a working enterprise; its sinews were the connections between the lawyers, stewards, and secretaries who ran the Howard estates. Even as feudalism waned, the Duke could count on his servants’ loyalty.31 However, the power of the ducal household did not depend 29 N. J. Williams, Thomas Howard, Fourth Duke of Norfolk; N. J. Williams, The Maritime Trade of the East Anglian Ports 1550–1590 (Oxford UP 1988); Roger Virgoe, “The Recovery of the Howards in East Anglia 1485–1529,” in Wealth and Power in Tudor England: Essays Presented to S. T. Bindoff, ed. E. Ives, R. J. Knecht, & J. J. Scarisbrick (London: Athlone Press 1978), 1–20; Geoffrey Baskerville, “Married Clergy and Pensioned Religious in Norwich Diocese,” English Historical Review 48: 43–62 (1933); Smith, County and Court at 21–44. 30 Smith, County and Court at 24. 31 In 1569, when Thomas Howard panicked at rumors about his treasonous ambitions and fled from London, a long line of gentlemen gathered at Kenninghall to talk with him. This was the last gasp, Diarmaid MacCulloch has written, “of the deep-seated East Anglian reflex action of looking to the Duke for an initiative in time of crisis.” Some of the Duke’s adherents,

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upon the Duke. When the Third Duke went to the Tower and his son the Earl of Surrey went to the block; when the Fourth Duke blundered into treason and got himself in turn beheaded; when the Fourth Duke’s son Philip Howard, Earl of Arundel, turned Roman Catholic and prayed for the success of Spanish arms, making a career out of confinement in the Tower—throughout these catastrophes, the shape of something like the Howard enterprise continued to function, kept alive by East Anglian gentlemen.32 Coke and his relatives rose within the Howard establishment; essentially, they were the Howard establishment. Coke’s uncle Thomas Gawdy had been the Third Duke’s steward. His cousin Thomas Gawdy owed to the Fourth Duke his post as Keeper of the Marshalsea, just as his Woodhouse cousins owed to the Duke their seats in Parliament (and likely their positions as vice-admirals for Norfolk and Suffolk). Robert Coke, whom the Fourth Duke would have known as the trusted servant of his own trusted servant Roger Townshend, could hardly have been appointed to the magistrates’ bench without the Duke’s support. Robert Bozoun held land from the duke on a hundred-year lease. Coke’s fatherin-law John Paston had been one of the gentlemen who attended Thomas Howard at Kenninghall.33 During the 1580’s, when Coke had his own career to make, the Howards relied on him to rebuild their fortunes. The relationship was symbiotic. The Howard estates in Suffolk were besieged by lawyers for the crown, who argued that these lands were forfeit under the late Duke’s attainder. Coke blunted these assaults. In the north of England, there was other litigation, back-handed and political. Philip Howard and Lord William Howard had acquired land in the North by marrying heiresses of the Dacre family; the government now stirred up Francis Dacre, their brother-in-law, to sue for all his father’s land. Coke traveled to Carlisle on this case—probably the longest journey of his life, but it was worth the trouble. Coke proved the plaintiff ’s evidence was forged, and won.34 _____ like Sir Thomas Cornwallis, were even willing to be arrested with him. Diarmaid MacCulloch, Suffolk and the Tudors: Politics and Religion in an English County at 96 (Oxford UP 1986). 32 In the early 1980’s, the BBC screened a television profile of the current Duke of Westminster. In one segment, the Duke was glimpsed among a cabal of dark-suited advisors, quiet alert men speaking in low tones as they deferentially informed the Duke of the decisions they had made about his property. Plus ça change. 33 Hasler, House of Commons 1558–1603; Bindoff, House of Commons 1509–1558 (Gawdy, Woodhouse, Paston); NRO Ms. BRA 926/30 (372x8) (Bozoun). 34 Rachel R. Reid, The King’s Council in the North at 225–26 (London: Longmans, Green

Learning the Law

By 1588, Coke had spurred the Howard forces into a counteroffensive. He re-established the family’s rights in the lordship of Aldeburgh, a fishing town on the bulge of the Suffolk coast. Aldeburgh was an undistinguished port, but with two seats in Parliament, it was a useful town in which to hold influence. The costs of defeating the Armada meant that a Parliament would soon have to be called, and the Howards knew that their attorney was worthy of his hire. In February 1589, when the House of Commons opened, among the back-benchers was Mr. Edward Coke, returned by the electors of Aldeburgh.35 A trick of Elizabethan gardeners was to plant grapevines around a worn-out apple tree. As the vines grew, they filled out the barren limbs with a new abundance of leaves and fruit. Coke’s rise to prominence in East Anglia, and the rise of the prosperous gentlemen who were his neighbors and clients, worked a similar change on the ruins of the Howard dynasty. At Castle Acre and Cratfield, Coke acquired lands which the Howards had owned. When Coke helped found the grammar school at Thetford, he was continuing a Howard project. Most intriguingly, Coke received from the Howards a singular, notable document: a manuscript of the medieval Modus Tenendi Parliamentum, a work commissioned by the Fourth Duke in his capacity as Earl Marshal. Whatever Thomas Howard’s purpose, the book served Coke well. Decades after the Duke’s execution, Coke would quote the text on the floor of the House of Commons. The manuscript had become a means by which medieval traditions were transmitted to the rising generation of Stuart constitutional thinkers.36 _____ 1921); King and Lord Hunsdon v. Countess Dowager of Arundel and Lord William Howard, Hobart 109 (Chancery 1615); Earl of Arundel and Lord Dacre’s Case, 1 Leon. 91 (1587); Salisbury MSS 18: 100 (7 April 1606). It was reported that Coke had taken depositions in 1587 which were used in evidence “upon an office at Carlisle” eight years later. 35 MacCulloch, Suffolk and the Tudors at 246–49. Coke also appeared for the Howards in Holland and Franklin’s Case, 1 Leon. 183 (1589), and a case noted at 7 Co. Rep. 20a. 36 W. A. Copinger, The Manors of Suffolk (London: T. F. Unwin 1905–11) (“Cratfield”); Calendar of Holkham Estate Records at 4: 93, Doc. 41 (Castle Acre). The Third Duke had hoped to found a college of secular priests in Thetford, and his servant Richard Fulmerston revived the project. V. J. K. Brook, Life of Archbishop Parker at 20 (Oxford UP 1962); Hasler, House of Commons 1558–1603, “Richard Fulmerston.” The copy of the Modus was discovered by David Starkey in Boston’s Isabella Stewart Gardner Museum and described by him in that institution’s journal. “Stewart Serendipity: A Missing Text of the Modus Tenendi Parliamentum,” Fenway Court 38–51 (1986).

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chapter 4

Practicing the Law

Few lawyers have ever enjoyed a broader practice than Coke did during his years at the bar. His career can be traced in arguments before the central courts in Westminster, in remarks about cases tried at county assizes, in advice supplied from chambers—most colorfully, in a roster of clients as varied as Chaucer’s troupe of pilgrims. Over nearly three decades as a lawyer, Coke acquired the experience he would distill in his Reports and Institutes. To survey his cases is to comprehend the raw material of the common law.

The Assize Circuit Every Lent and every summer, the judges and lawyers trooped out from Westminster, following circuits across the counties of England. They rode in procession, traveling to guildhalls and castles and shire houses across the country, following the ancient pattern of the assizes. Typically, the judges were met outside each assize town by the sheriff and a troop of liveried horsemen. In every market square, trumpeters blared a welcome, the trained-band stood with pikes at order, aldermen straightened ruffled collars, the mayor adjusted his chain of office. The mayor spoke, the judges spoke, a local preacher spoke, all on the theme of a subject’s duty. Around this formal center swirled county society. While pleas were argued back and forth, while parchment rustled, while shackled prisoners stumbled from gaol to courtroom, while the sheriff ’s

Practicing the Law

servants manhandled sides of beef and polished candelabrae for the formal dinner, the county’s justices and gentlemen talked law and politics and marriage settlements.1 The assize tour was a study in pompousness and energy. On the assize tour, Coke rode the Norfolk circuit. He may have done so as early as 1576; he stopped only in 1613.2 The cavalcade headed north from London, to Aylesbury and Bedford and Huntingdon. Then Coke was back on native ground: after gaol delivery at Cambridge Castle, the tour concluded with the Norfolk assizes (Thetford in winter, Norwich in the summer) and the Suffolk assizes in the shire house at Bury St. Edmunds. Behind the ceremony, work went on. Assizes were a critical link in English government; it was their duty, judges were told, “to represent to the people the graces and cares of the king; and again, upon your return, to present to the king the distastes and griefs of the people.”3 When charging grand juries, the judges delivered speeches framed by the Privy Council. They informed the local justices what the government required—the policy to be followed on Catholics or Puritans, for example, or on social matters, “rogues and vagabonds, alehouses, excesses in ap1 Such pageantry long endured. The opening chapters of Cyril Hare’s detective novel Tragedy at Law (1942) depict assizes during the Second World War, in which, with trumpeters and assize sermons sacrificed to wartime austerity, “His Majesty’s Judge must in consequence creep into his car with no more ceremony than an ambassador or an archbishop.” Nonetheless, Hare observes, the bench and bar of England muddled through, making do with sheriffs in gaudy outdated full-dress uniforms, and detachments of police standing in for pikemen. Even the war did not kill the assizes, which survived into the era of the Beatles. Gentlemen now abed in England, who knew the blitz as infants, have in their youth served stints as assize trumpeters. 2 References throughout the Reports and Institutes speak of assize matters on the Norfolk circuit, suggesting Coke was present, on numerous occasions throughout the last half of Elizabeth’s reign. See 4 Co. Rep. 5a (1576?), 101 Selden Society at 82 (1580 or 1582); Combe’s Case, 9 Co. Rep. 75a (Lent 1582); Calye’s Case, 8 Co. Rep. 32a (Lent 1584); 101 Selden Society 67 (summer 1584); 3 Inst. 113 (summer 1586); 2 Inst. 318, 3 Inst. 230 (summer 1589; Lent 1590); Hasler, House of Commons 1558–1603, “Bassingborne Gawdy II” (1594); and Flowers’ Case, 5 Co. Rep. 99a (1598). These references, his Anglian background, and the large number of Norfolk and Suffolk cases he handled, make it highly likely that Coke rode the Norfolk circuit in other years. In 1603, Coke was on the Midland circuit, noting a case at Leicester. Co. Litt. 127a– 127b. As a judge, beginning in 1609, he returned to the Norfolk circuit steadily, until 1613–16, when he was put back on the Midland, and in 1617, when King James ordered him to stay in the capital and censor his reports. J. S. Cockburn, A History of English Assizes 1558–1714 at 106, 268–69 (Cambridge UP 1972). 3 James Spedding, The Letters and the Life of Francis Bacon at 6: 211 (London: Longman, Green, Longman & Roberts 1861–74). So Sir Francis Bacon addressed the judges as they departed for the summer assizes of 1617.

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parel, economic parasites, failure to observe fish and fast days, [and] the enforcement of craft apprenticeship.”4 At the same time, drawing on what they saw and heard in the course of riding circuit, judges were expected to gauge the strength and character of the provincial economies. The government relied on them to decide whether wheat could be exported without risking famine; local drapers and weavers trusted them to hand up to Westminster petitions for reviving cloth manufacture. In Coke’s own case, certainly, the weeks spent by the lawyer on the Norfolk circuit helped shape the thinking of the Lord Chief Justice. Each time Coke followed the assizes, he faced the concerns of the working lawyer: five days of trials at Norwich, five days more at Bury, judges to satisfy, clients to please. He had to straighten the tangled history of a burglary indictment, sort out a piracy case that had arisen on the North Sea littoral, champion old Lady Gresham in her latest quarrel with her neighbors. Over decades on the circuit, Coke was present as greater controversies gathered. He saw drought parch the Suffolk wheatfields—saw some gentlemen decline while others prospered—listened to complaints about purveyance and monopoly—heard barbs traded between the godly preachers and the bishops’ men, saw them drag each other into court. It was in this social landscape that the judges argued and determined the law. Doctrine was refined in the same arena where commerce was debated, political lines drawn, and individuals’ grievances settled. The assize circuit was a rigorous school for the working judge.

Norfolk Clients: The Greshams and the Gentry With Thomas Howard executed—with Philip Howard a ward and then a prisoner of the crown, and the rest of the Howard family dispersed—with the impecunious and disgruntled Lord Cromwell the county’s only resident nobleman—the county of Norfolk was run by a tightly interwoven oligarchy of gentlemen. The same surnames appear in the rolls of landlords, lawyers, and Members of Parliament: Bacon, Cornwallis, Gawdy, Gresham, Townshend, Wyndham. Coke could count every one of these families (and others besides) as a cousin, connection, friend, co-tenant, client, or well-disposed neighbor. Among the gentry, Coke’s most important clients were the family of Sir 4

Cockburn, English Assizes at 181.

Practicing the Law

Thomas Gresham, the Tudor financier. Remembered today for formulating Gresham’s Law, the observation that debased money drives good money out of circulation, Sir Thomas came of good Norfolk stock. His business ran on a three-cornered circuit from his country house at Holt to the Royal Exchange in London (a development he sponsored) and overseas to the bourse in Antwerp. He owned land at Mileham during the years Coke was growing up there; perhaps that was the original connection.5 When Sir Thomas died, in 1579, he left an imperfect estate plan. Coke handled matters: stretched certain testamentary clauses, answered questions from the Exchequer. Sir Thomas left a natural daughter, honorably married to Nathaniel Bacon; there was a quarrel over her daughter’s marriage settlement, and Coke patched that up.6 Sir Thomas also left a widow, Anne Fernley Rede Gresham, a combative old woman who involved Coke in more lawsuits than the rest of her family put together. Lady Gresham feuded with her neighbors, sued farmers who denied her tithes, and got herself indicted for blocking the highway at Osterley Park, the Greshams’ estate west of London.7 Anne Gresham seems to have prized her lawyer. In 1586, a time when Coke still found himself short of money, she co-signed a bond for Coke, securing a loan of £500. She was godmother for Coke’s first-born daughter (her namesake, probably not coincidentally).8 Over the winter of 1596–97, from St. Nicholas’ Day through Lent, the Coke family stayed at Osterley Park. Lady Gresham had died in late November; that last summer of her long life, as she signed a final set of leases and bagged her final set of entry fines, she may have arranged to host them over Christmas.9 Coke had won other people’s trust. Sir Thomas Gawdy relied heavily 5

“Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 49: 89, 100, 106 (A. H. Smith & G. M. Baker eds. 1982–83). 6 Sir Thomas Gresham’s Case, 1 Leon. 89 (1587); Lady Gresham’s Case, Moore 261 (1588); Reade and Nash’s Case, 1 Leon. 147 (1589) (estate litigation); “Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 53: 240–67 (A. H. Smith & G. M. Baker eds. 1978–79) (marriage settlement). 7 Botham and Lady Gresham’s Case, 3 Leon. 203 (1588); Botham and Cooper v. Lady Gresham, Cro. Eliz. 136 (1588); Anonymous, Godbolt 59 (1586); 3 Inst. 170–72. See also 3 Co. Rep. 86a, Read’s Case, 6 Co. Rep. 24a (1599). Lady Gresham’s rapacious career as a landlord is sketched in the introduction to J. Ward, Lives of the Professors of Gresham College (1740). 8 Catalogue of Holkham Estate Records at 1: 203A (bond for £500, dated 28 June 1586, made to Sir Wolstan Dixie, alderman and mayor of London, by Edward Coke and Anne Gresham); Vade Mecum at 116–17. 9 Even thereafter, the personal link endured. Just after Christmas, Bridget Coke was born in an Osterley bedroom and christened in the mansion’s chapel. One of the child’s godmothers was young Anne Rede, Lady Gresham’s granddaughter by her first marriage. C. W. James at 18–19; Vade Mecum at 116–17.

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on his young relative: “My will is interlined in divers places by the writing of my cousin, Edward Cooke,” the judge noted on his deathbed.10 Coke’s other cousins, the Woodhouses, and his Paston in-laws appear in an odd piece of litigation: a lawsuit over the escape of an imprisoned debtor, which may mask a reshuffling of debts among creditors.11 The older sons of Lord Keeper Bacon, Nathaniel Bacon at Stiffkey Hall and Sir Nicholas Bacon the younger (at Redgrave in Suffolk) were Coke’s friends and long-term clients. Both were Puritans; I commit you to the care of the Almighty, Coke closed his letters, when he wrote to Nathaniel.12 The prominent Wyndham brothers, Francis and Roger, figure in several cases which Coke handled.13 The Townshend family had likely helped Robert Coke gain a seat on the county bench; Coke repaid the favor, with interest, by helping Sir John Townshend gain a seat in the Commons.14 Coke also counseled the Drury family of Hawstead, John Donne’s in-laws.15 In a lawsuit styled Winter v. Loveday, the names may conceal the true parties in interest; the Cornwallis family was paying off the mortgage in question.16 It was not only the gentry of Norfolk who gave Coke business. The mayor of King’s Lynn was accused of bribery; Coke argued that the statute did not cover misconduct by mayors. A farmer at Dunham refused to pay tithes, arguing that his land lay outside the parish.17 The printed reports alone reveal dozens of Norfolk and Suffolk cases which Coke appeared, with Essex providing others.18 10

Millican, Gawdys of Norfolk at 66. Coke also witnessed the will. Ognel v. Paston, 2 Leon. 84 (1587), clarified in Doctor Drury’s Case, 8 Co. Rep. 139a, 141b (1610). Ostensibly, plaintiff Ognel recovered against Sheriff Clement Paston for negligently allowing the escape of Ognel’s debtor, Francis Woodhouse (thereby costing Ognel his due recovery). However, given the prominence of the families involved, and Coke’s links to both sides, the decision really formalized a reshuffling of debt. See also Burton’s Case, 5 Co. Rep. 69a (1591) (Woodhouse family). 12 “Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 49: 188–89, 192, 209–10, 347–48; Norf. Rec. Soc. 53: 240–46; Foster’s Case, 5 Co. Rep. 59a (1590); Nathaniel Bacon, Annalls of Ipswche: The Lawes, Customes and Government of the Same [sic] (1654) (Sir Nicholas Bacon II). 13 Justice Wyndham’s Case, 5 Co. Rep. 7a (1589), Tooley v. Windham, Cro. Eliz. 206 (1590), and Toley and Windham’s Case, 2 Leon. 105 (1591); Windham and Sir Edward Clere’s Case, 1 Leon. 187 (1590). 14 Hasler, House of Commons 1558–1603, “Sir Edward Coke,” “Sir John Townshend.” 15 R. C. Bald, Donne and the Drurys at 21 (Cambridge UP 1958); Tey’s Case, 5 Co. Rep. 38a (1592); Sir Drew Drury’s Case, 6 Co. Rep. 73a (1607). 16 Winter v. Loveday, 2 Leon. 213 (1589). 17 Mayor of Lynn’s Case, 1 Leon. 295, 3 Inst. 145 (1585); Stransham v. Medcalf, 1 Leon. 130 (1588). 18 From Norfolk came Bozoun’s Case, 4 Co. Rep. 34b, also reported as Futter v. Boroome, 11

Practicing the Law

Coke’s Clients Little is more surprising than the wide variety of Coke’s clients. The parties whose cases wound through his chambers included Puritan preachers, Roman Catholic magnates, prosperous but illiterate yeomen, City haberdashers, mariners, merchants, gentlemen, parsons, and churchwardens.19 A man built a watermill without nailing down beforehand the right to build a water-course to power it. A cockney publican leased a tavern in Gracechurch Street, paid his rent to the landlord’s assignee, then had the landlord show up demanding to be paid directly. A warehouse collapsed, staving in hogsheads of wine in the basement. Wardships were challenged. Posthumous children upset estate plans.20 Many of Coke’s cases involved the land law—leases running from Michaelmas, remainders running seriatim, tangled conveyances.21 The land-law was privileged by English jurisprudents; Coke would devote his master-work to the law of real property, sweeping most of the rest of the law into its interstices; but his clients included merchants as well as gen_____ Godbolt 35 (1584); Sir Miles Corbet’s Case, 7 Co. Rep. 5a (1585); Bulwer’s Case, 7 Co. Rep. 1a (1586); Page’s Case, 5 Co. Rep. 52a (1587); Gayton’s Case, Owen 12 (1590); and a notable tithe case, involving a wheatfield replanted with saffron crocuses, reported as Bedingfield v. Feak, Cro. Eliz. 467 (1596) and Case of the Dean and Chapter of Norwich, Owen 74 (1596). Suffolk contributed Sendil’s Case, 7 Co. Rep. 6a (1585); Hawkins’ Case, 2 Leon. 129 (1587); Pretiman v. Coke, 2 Leon. 193 (1587), and Putnam and Coke’s Case, 3 Leon. 180 (1587); Bohun’s Case, 5 Co. Rep. 43b (1596); Yong’s Case, 4 Co. Rep. 40a (1586); Ross v. Moorice, 2 Leon. 23 (1588); and Murrell v. Smith, 4 Co. Rep. 24b (1591). During Elizabeth’s reign, two great cases divided this shire: a thirty-year struggle over Columbine Hall, near Stowupland, and a twenty-six year battle over commons land at Beccles Fen. Coke was involved in both. MacCulloch, Suffolk and the Tudors at 109–10, 326–28. Cases from Essex which Coke tried included Bunting v. Lepingwell, 4 Co. Rep. 29a (1585); Milborne’s Case, 7 Co. Rep. 6b (1587); Butler and Baker’s Case, 3 Co. Rep. 25a (1591); Perry v. Some, 2 Leon. 27, Cro. Eliz. 138 (1588); and Pennant’s Case, 3 Co. Rep. 64a (1596). 19 Flemming’s Case, 1 Leon. 295 (1584) (Puritan minister); Sir Francis Englefield’s Case, 4 Leon. 135, 4 Leon. 169, Moore 303 (1591), and Lord Paget’s Case, 1 Leon. 194, Moore 183 (1591) (exiled Catholic lords); Higham v. Horwood, Moore 221 (1586) (illiterate testator); Gomersall v. Gomersall, 2 Leon. 194 (1587), Godbolt 55 (1586) (litigious haberdashers); East, Skidmore and Foame v. Vaudstevan, Cro. Eliz. 56 (1587) (mariners); Lancaster and Lucas’s Case, 1 Leon. 233 (1590) (gentlemen); Bland v. Maddox, Cro. Eliz. 79 (1587), Blinco v. Barksdale, Cro. Eliz. 578 (1597), Story v. Baber, Cro. Eliz. 276 (1592), and Gosnal v. Kindlemarsh, Cro. Eliz. 88 (1588) (ministers); and Hadman and Green v. Ringwood, Cro. Eliz. 145, Cro. Eliz. 179 (1589–90), also reported as Churchwardens of Fetherstone’s Case, 1 Leon. 177 (Norfolk churchwardens). 20 Huddy v. Fisher, 1 Leon. 278 (1586); Gallies v. Budberry, Cro. Eliz. 62 (1587); Edwards’ Case, Cro. Eliz. 285 (1592); Mounson’s Case, Moore 216 (1585) Ellis Hartop’s Case, 1 Leon. 253 (1591). 21 Wiseman’s Case, 2 Leon. 148 (1582); Anonymous, 4 Leon. 144 (1586); Scovell and Cavell’s Case, 1 Leon. 317 (1589); Read and Morpeth v. Errington, Cro. Eliz. 321 (1594).

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tlemen. He worked with the guilds of the City of London; he represented the Drapers’ Company and handled investigations involving the Company of Woolmen and the Company of Brewers. He handled numerous investigations, dozens of them, for the Privy Council: reports on tin mines, vinegar-making, woolens, markets, and bankruptcy.22 So extensive was Coke’s City practice, so to speak, that one of the volumes seized by King Charles’ men, when they raided his chambers at the Inner Temple, had been devoted to this area.23 The most exotic parties whose affairs wound through Coke’s chambers at the Inner Temple seem to have been a family of North African merchants. As the reporter set down their names, they were Isaac Abess and his four sons, “factors,” to whom an English venturer had advanced goods worth “£400 Barbary money.”24 There is no sign that the Abess family themselves set foot in London, nor that they worried particularly, among the bustle of the market in Tangier, over any queer-looking courthand document thrown down upon their counter by an irate sunburnt Englishman. Nonetheless, their ensnarement in Exchequer proceedings shows how many new issues faced the judges of Coke’s day. Were Isaac and his sons Algerine merchants? Sephardic traders? Only one generation before, Chief Justice Robert Brooke had opined that Jews and Moslems had no rights under the common law.25 Yet now such fabulous creatures figured in everyday lawsuits—and one could catch glimpses ahead of even rougher beasts, like players in the currency market. The demand in this case for a sum certain in foreign currency, £400 in Barbary money, shows that Coke was litigating an early commercial-paper lawsuit.26 Coke’s practice says little about his politics. Representing a tavernowner did not keep him from representing Nathaniel Bacon, who sought to put down ale-houses. Nor can he be shown, as a practicing lawyer, to have heavily favored any one side in the three-cornered struggle between Anglicans, Catholics, and Puritans. He would take on virtually any client. 22

These commercial investigations, which must have give Coke much of his grounding in the business world, are summarized at Stephen D. White, Sir Edward Coke and “The Grievances of the Commonwealth” 1621–1628 at 285–86 (UNC Press 1979). Under a statute of Henry VII, the ordinances of a guild or craft could be ratified by the two chief justices. Coke ratified ordinances for the Merchant Taylors, the Salters, and the Saddlers. Id. 23 “A paper book in folio covered with vellum entitled the Cases of the Companies of London and the judges’ opinions upon the same.” Holkham Catalogue at vi. 24 Goore v. Dawbeny, 2 Leon. 75 (1589); Daubeney v. Goore, Moore 188 (1585). 25 Baker, Spelman’s Reports at 306. 26 James Steven Rogers, Early History of the Law of Bills and Notes (Cambridge UP 1995).

Practicing the Law

That says something, because it suggests the way in which Coke saw his profession as a craft, a matter of technical learning which could be deployed in any cause. His later insistence that the law was the wisdom of the judges would be rooted in the celebration of professional accomplishment. Coke worked as a counselor as well as a courtroom advocate. His practice in this area can be traced through opinions of counsel, a distinct genre of English legal document which is only now beginning to attract sustained consideration. The opinion of counsel presents the terms of a questioned conveyance, or the facts of the case set forth as in a pleading—nearly always on one folio sheet, with the opinion of the lawyer consulted set forth succinctly, above his signature, at the foot of the sheet (“I am of opinion that an use riseth by the covenant upon consideration of this case to Henry Long the son in tail”). The format of the opinion, so to speak, allowed it to be used as a legal talisman: an artifact displayed in the face of an adversary, to turn him aside or charm him into submission. Coke apparently used an opinion of counsel this way himself, in disputes with a neighbor in Norfolk. His own professional opinion was sought across the realm: by the Long family in the West Country; by the Knollys dynasty, interpreting a marriage settlement; over rights to an advowson, which tested his opinion against that of Thomas Egerton; by mariners considering whether the ship Chancewell, “a keele of York,” should be considered a deodand if a sailor fell overboard and drowned.27 Coke began to make his mark within the bar. He had been called as an utter-barrister in 1578. In January 1590, when Coke was still an utterbarrister, he was appointed steward for the dinner at the Lent reading at the Inner Temple. In May 1590, it was decided that henceforth calls to the bench of the inn could only be made during a law-term and by a parliament; Coke was the first bencher promoted under this regulation. More remarkably, even as an utter-barrister, he had occupied what must have been one of the most imposing sets of chambers at the Inner Temple, the rooms formerly occupied by the Earl of Leicester. He had done so since October 1588, when the Earl of Warwick, Leicester’s brother and heir-at-law, asked that Coke be admitted into “the south end chamber of 27

Previously considered briefly by R. H. Helmholz, in connection with civilians’ opinions on canon-law matters, the opinion of counsel has recently been the focus of work by J. H. Baker. The Law’s Two Bodies at 87–89, 171–86. The opinions by Coke can be found, respectively, at BL Add. MS 21507, fo. 10; BL Add. MS 36905, fo. 138; BL Add. MS 23959, fo. 51; and BL Lansdowne MS 145, fo. 20–22.

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the buildings made by Mr. Fuller and into certain rooms thereunto adjoined built by the same late Earl.” That bequest reflects an important set of connections. It links Coke to Leicester, a worldly man who favored Puritans and made Thomas Cartwright master of his hospital in the city of Warwick; and it links him to Leicester’s brother, one of whose chaplains was a godly preacher named William Fleming, one of Coke’s earliest Puritan clients.28

The Mature Lawyer Even after four centuries, one can recognize in Coke many qualities of the capable lawyer. He could cleverly frame a pleading to foreclose or anticipate an issue—devise a pleading to alter the trial, a colleague respectfully termed it.29 When he took an appeal, he carefully hunted flaws in the trial record, and often sought—not always successfully—to amend the record to his client’s advantage.30 Where precedent was called for, he could supply it on demand: Year Book entries, opinions just uttered by other courts, discussions and decisions from his vast, growing experience. He could distill professional consensus into Latin maxims. When ancestral rights had to be defined, or the Latin term garba put into English, Coke took the opportunity to cite “ancient readings” or charters issued by King John.31 Suing a farmer who had killed eighteen of his neighbor’s rabbits let Coke discuss commoners’ rights and the legal status of ferae naturae, spouting an impressive number of classical maxims.32 When Coke represented a criminal defendant—as he often did—he was adept at shifting issues to put the law (rather than the defendant) on 28 Inderwick, Calendar of the Inner Temple Records at 1: lxxvii, xciii; 2: lxi. Leicester had numerous estates in northwestern Norfolk, not far from Coke’s own home terrain, and had been associated with the Inner Temple since 1561, when he helped it prevail against the Middle Temple in a dispute over control of Lyon’s Inn. Derek Wilson, Sweet Robin: A Biography of Robert Dudley, Earl of Leicester at 131–33, 197–207 (London: Hamish Hamilton, 1981). 29 Rockwood v. Feasar, Cro. Eliz. 262 (1591). 30 Harecourt’s Case, Goldsborough 151 (1601). 31 Case of the Town of Leicester, 2 Leon. 190 (1586) (reading on Domesday Book and ancient demesne). In Barsdale v. Smith, Cro. Eliz. 633 (1598), where garba had to be defined, the defendant was one of those sturdy marauding Elizabethan vicars, so unlike their domesticated descendants in Barsetshire or Barbara Pym’s London, who had committed trespass by carrying away two loads of hay. 32 Coney’s Case, Godbolt 122, 2 Leon. 201 (1587). See also Futter v. Boroome, Goldbolt 39 (1584).

Practicing the Law

trial. He could point out vagueness in an indictment, turn two clauses of a statute against each other, make the most of an unforeseen eventuality.33 Slander was another field of law which he frequently turned inside-out. With his strong sense of self-worth, he may have been sensitive to defamation.34 Many of his cases were clearly slander suits, brought to redress allegations that the plaintiff was a perjured knave, a lying knave, or a cozening knave, or consorted with footpads, or deserved hanging.35 Many other proceedings, however, seem to reflect the common lawyers’ traditional fondness for legal fictions. Some of Coke’s slander-of-title suits may have been disguised ways of trying title to land. A judgment against someone who had allegedly denied the plaintiff ’s right to sell an estate could be used to affirm the seller’s right.36 Some of his favorite phrases sank into memory. Characteristically, he advised judges that the issue was simple, that “This matter lies in a little room.”37 He quoted the Bible and the classics. He could make a long, lamentable account of his client’s injuries, he told one panel, “but it would be said of him as of Cassandra, [that] when he had spoken much he should not be believed.” In another close, “doubtful” case, when a litigant offered to split the acreage at issue, Coke spoke up shrewdly for the other claimant: “Doubtless the child is none of his that would have it di33 Flemming’s Case, 1 Leon. 295 (1584) (Puritan minister tried for using unapproved language in baptism); Sturgie’s Case, Godbolt 62 (1586) (forged will); Martin van Henbeck’s Case, 2 Leon. 38 (1588) (false gauge of pipes of wine); Guildford’s Case, 1 Leon. 238 (1590) (seducing subjects away from religious allegiance); Penryn v. Corbet, Cro. Eliz. 464 (1596) (appeal of murder); Brooke’s Case, 2 Leon. 83 (1587). In Lacy’s Case, 1 Leon. 270 (1583), 3 Inst. 48, Coke helped lay a foundation of the code duello. He defended a client who had killed a man “upon Scarborough Sands . . . between the high water-mark and the low water-mark.” Coke argued that jurisdiction was lacking where a fatal blow was struck on the high seas and the victim died ashore. As late as September 1842, when Abraham Lincoln awaited a challenger on a sandbar in the Mississippi River, sawing the air with a cavalry sabre while the seconds made up matters, duelists would evade the law by meeting on sea-strands and islands. 34 In Star Chamber, it was noted, “In all ages libels have been severely punished . . . but most especially they began to be frequent about 42 & 43 Eliz [sic] when Sir Edward Coke was her attorney general.” William Hudson, Treatise of the Court of Star Chamber at 100 (ca. 1621, repr. Legal Classics Library 1986). 35 Moor and Sir John Savage’s Case, 2 Leon. 81 (1586); Lord Mordaunt v. Bridge, Moore 686 (1587); Donne’s Case, Cro. Eliz. 62 (1588); Eglinton and Aunsell’s Case, Godbolt 88 (1586). 36 Moor and Sir John Savage’s Case, 2 Leon. 81 (1586) and Sir Gilbert Gerrard v. Mary Dickenson, Cro. Eliz. 196 (1590). Likewise, when a minister sued the man who charged him with bigamy (allegedly, to cause him to lose his church living), this may have represented a way of bringing church politics into the common-law courts. Nicholson v. Lyne, Cro. Eliz. 94 (1589). 37 Fuller, Worthies of England at 415; C. W. James at 323.

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vided.”38 Francis Bacon recorded another common saying of his rival. “Sir Edward Coke, being Attorney, would seem in modesty to say, if the client kept his fee in his hand, ‘No, leave your fee’: if he laid it down on the table, ‘Let your fee alone.’”39 Coke matched the lawyers’ art with the tragedian’s intensity. In 1598, prosecuting Edward Squire, who had feebly tried to poison Queen Elizabeth, Coke summoned tears of anger when delivering his summation.40 When crossed in Star Chamber, he could work himself into a memorable tantrum. In 1604, in Sidney v. Dudley, Lord Chancellor Ellesmere refused to let Coke present a series of depositions he had taken. Coke retorted that “if it might not be allowed him he would speak no more in the cause, and laid away his books, and pressed to be heard.” The Lord Chancellor refused to be cowed: “he knew what he had said,” he announced, “and he had heard and learned it before ever Mr. Attorney had.” The rest of Star Chamber sided with Ellesmere. Which resolution of the judges much disliked the Attorney . . . and the Attorney took not his books again, nor spake any more that whole day. And the court sat silent a pretty space.41

As this suggests, Coke did not shrink from confrontation. In 1591, representing the family of an attainted traitor—Thomas, Lord Paget, a Roman Catholic exile—Coke fought doughtily in a seemingly hopeless cause. Under the terms of Lord Paget’s attainder, the Paget family could retain the estate in question only if a remainder had vested immediately in the heir, young William Paget; otherwise the lands were forfeited to the crown. That was what the government sought, and its case was supported by a heavy array of England’s bench and bar: an Exchequer Chamber of hostile judges, fronted by Attorney-General Popham and Solicitor-General Egerton. 38 Robert Parker Sorlien, Diary of John Manningham of the Middle Temple 1602–1603 at 123, 186–87 (Hanover, New Hampshire; University Press of New England for University of Rhode Island, 1976). 39 Lambeth Palace Library MS 2086, p. 61, quoted in Lisa Jardine & Alan Stewart, Hostage to Fortune: The Troubled Life of Francis Bacon at 254 (New York: Hill & Wang 1998). 40 Arthur Freeman, Elizabeth’s Misfits: Brief Lives of English Eccentrics, Exploiters, Rogues and Failures 1580–1660 at 41–42 (New York: Garland Publishing 1978). The ability to underline argument with emotion had been praised by earlier rhetoricians, and remains an effective tool for the attorney who can feel or manage it. During one of the trials of the Oklahoma City bombers, defense attorneys moved to disqualify the lead prosecutor, alleging that his crying during closing arguments at the first conspirator’s trial had been unduly inflammatory. 41 Hawarde, Cases in Camera Stellata at 203–4.

Practicing the Law

Against these odds, as stoic as Seneca, as dauntless as Marlowe’s Tamburlaine, Coke waded into the fray. He cited Shelley’s Case and Year Book precedents, and then the questions began. Chief Baron Manwood fired a hypothetical at him, hoping to force a concession. The remainder doth vest presently, Coke replied. Manwood fired back a subtly different question. The remainder doth vest presently, Coke maintained. Popham spoke against him. Egerton spoke against him. Justice Periam weighed in against him. Then Manwood demanded an answer to yet another hypothetical—on these facts, when would the estate begin? Presently, Coke replied, unbowed.42 The law is contrary, Manwood snorted. Nevertheless, when all the judges had voted, William Paget kept his lands. He staunchly supported the Church of England, went ashore at Cadiz with Ralegh and Essex, and, as his loyalty was proven, won back more and more of his father’s estates. Coke’s rear-guard action bought that time for his client.

From Notebooks to Reports During the years he practiced law, Coke filled at least four notebooks. The keystone of the collection was a thick octavo volume, seven inches long by four inches wide by four inches thick, a dense brick of a book. “One book of reports covered with black velvet,” Coke described it, o “beginning with Pasche 33 Eliz: and ending Trinity 4 Jac: regis and cont’ 713 leaves.” From this single volume came half of the cases in Coke’s Reports and much of the detail in the Institutes: sketches on the treasons of Essex and Ralegh, comments on the trial of Guy Fawkes; details of Pinnel’s Case, which so long bedeviled contract law. Information on tithes and forests, Welsh inheritance customs, London customs on widows, debts due to the crown. Coke’s account of his own appointment to office, and notes on the crown’s removal of an Attorney-General.43 Another volume in Coke’s library warranted special notice. It collected several commonplace books and sets of case reports, together with pages from Littleton’s Tenures. Coke’s own daughter, it is said, embroidered a cover, and the book seems to have been resplendent: Littleton mixed not only with book cases and many titles of the law intermixed therewith, but with many reports of cases in the reign of Queen Eliza: 42

Lord Paget’s Case, 1 Leon. at 195–201 (1591). The main notebook is BL Harleian MS 6686. Baker, LPCL at 177–204.

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Practicing the Law before the 32d year of the same Queen: with a cover of crimson satin curiously embroidered with gold, silver, and silk and over that a cover of crimson damask in octavo.44

This was not the manuscript from which the Commentary Upon Littleton was printed, but it likely is the manuscript from which Coke’s masterpiece descended. Coke had Dyer’s notebooks and Sir Nicholas Bacon’s notebooks.45 His own notebooks would be handed down in turn, from the Wyndhams of Norfolk to the Strouds of Somerset, from them to Robert Harley, Earl of Oxford, until finally they came to rest on air-conditioned bookshelves in London and Cambridge.46 For Coke, law was wisdom, but it was also craft. And the way in which books were passed from hand to hand reminds how succeeding generations of craftsmen worked with the same tools.47 By no means did Coke win all of his cases. Indeed, given his reputation as an oracle of the law, it is surprising in how many cases he did not prevail. In many such decisions, at least in hindsight, such losses seem to have been gambles that did not pay off. Courts refused to stretch analogies, or declined to take seriously the flaws which Coke unearthed in the trial record.48 The printed record alone contains dozens of cases in which Coke lost—and none of which, for whatever reason, seem to have found their way into the Reports.49 Who published what may tell a story in itself. Most of these cases, the defeats not acknowledged in Coke’s Reports, were published in the re44

Baker, LPCL at 180; Holkham Catalogue No. 369 (now BL Harl. MS 6687). Holkham Catalogue Nos. 302, 702. 46 Baker, LPCL at 198. 47 The above was written with the aid of notes made in pencil and in ink (to distinguish notes made in 2001 from those made in 1994) in the margins of a photocopy of John Baker’s article on Coke’s manuscripts, as originally published in the Cambridge Law Journal (not as subsequently issued by Hambledon Press). Nota lecteur. 48 Roper’s Case, 4 Leon. 47 (1588) (Coke unsuccessfully argues that preferring an indictment and bringing an appeal of robbery is the equivalent of fresh suit); Rotheram v. Crawley, Owen 71 (1593) (Coke’s client’s suit held foreclosed by prior release); Harecourt’s Case, Goldsborough 151 (1601) (requested amendment denied; one letter cited as error); Disply v. Sprat, Cro. Eliz. 57 (1587) (Coke unsuccessfully cites difference in surnames of juror as impaneled and list of jurors’ surnames as sworn). 49 See Donne’s Case, Cro. Eliz. 62 (1587); Lee v. Curveton, Cro. Eliz. 153 (1589); Applethwaite v. Nertley, 4 Leon. 57 (1591); Mott v. Hales, Cro. Eliz. 123 (1593); Stone v. Wythipol, Cro. Eliz. 126 (1593); Queen v. Ingersoll, Cro. Eliz. 310 (1593); Marsh v. Astry, Cro. Eliz. 175 (1590); Sherburne’s Case, Cro. Eliz. 306 (1593); Dr. Ford v. Hollingborough, Cro. Eliz. 313 (1594); Stokes v. Annesby, Cro. Eliz. 367 (1595); Blinco v. Barksdale, Cro. Eliz. 578 (1597); Ireland v. Coulter, Cro. Eliz. 630 (1598). 45

Practicing the Law

ports of Sir George Croke. George Croke was a younger associate of Coke’s; he was admitted to Coke’s chambers in the Inner Temple in 1588.50 The possibility that Coke’s vanity led him to suppress these cases, while the youngest member of chambers snapped them up, sounds a humoresque counterpoint to the history of law reporting. 50

Inderwick, Calendar of the Inner Temple Records at 2: 345.

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chapter 5

Magistrates and Ministers: County Politics, 1572-1583

Political and religious tensions surrounded Coke throughout the reign of Elizabeth. Feuds developed between gentlemen who controlled county government and other gentlemen who relied on influence at court; feuds developed over religion, taxation, summary imprisonment, control of the militia, and dubious favors granted to courtiers. These quarrels involved Coke as a landowner, a rising lawyer, an ally of the Cecil family, and a member of the House of Commons. The sympathies Coke showed in these early years would re-emerge in his years on the judicial bench.

Overture: Landscape and Society “All England may be carved out of Norfolk,” Thomas Fuller remarked; “here are fens and heaths, and light and deep, and sand and clay ground, and meadows and pasture, and arable and woody . . . so grateful is this shire with the variety thereof.” The rabbits and herrings were notably good, Fuller went on, but the county “shareth plentifully in all English commodities,” and “no county in England doth carry a top and top-gallant more high in maritime performance than Norfolk.”1 North and west of Norwich, gentlemen ran huge flocks of sheep and yeomen farmers tended acres of grain. The harvest went north in coasting vessels, 1

Fuller, Worthies of England at 402–3.

Magistrates and Ministers: County Politics, 1572–1583

or in barges inland along the rivers that reached the sea at King’s Lynn; that prosperous entrepot was erecting an imposing set of warehouses. South and east of Norwich, graziers herded dairy cattle and townsmen wove worsted and linen. Throughout this half of the shire, cloth brought in profits; even decades later, traveler Celia Fiennes saw country people working spinning-wheels in village lanes, or knitting in little groups under the hedges. Traffic south to London had rutted the highways, herds of cattle, sacks of grain, cartloads of cheeses. From Yarmouth, cheese was shipped to London and cloth to German seaports. Yarmouth was also, as pamphleteer Thomas Nashe wrote, “the superiminent principal metropolis of the red fish,” a port where “fourscore sail of boats” daily landed great catches of herring.2 In Thetford, burgesses tanned leather and brewed beer; others tore apart abandoned churches for building-stone. The shire had more than 600 villages, thirty-odd market towns, two well-known fairs. In most of the larger towns, gentlemen were founding or endowing grammar schools—in the Norwich cathedral close, at Thetford and Lynn, Holt, Aylesham, and Yarmouth.3 Out of all England’s counties, Norfolk was renowned (or notorious) as the realm’s “most fruitful nursery of lawyers.”4 The Hobart and Spelman families had produced respected judges. Norfolk farmers were reputedly “so well skilled in matters of the law, as many times even the baser sort at the plough-tail will argue pro et contra cases in law.” Their “cunning and subtlety hath replenished the shire with more lawyers than any shire whatsoever far greater, and made themselves suspected of most shires of the realm and given the beginning unto the common word, Norfolk wiles many a man beguiles.”5 Norfolkmen were said to carry Littleton’s Tenures into the fields with them, to delight in raising quarrels “out of the quirks and niceties of the law,” to sue for any neighbor’s horse that happened to look over their hedge.6 Far more than in most shires, the gentry of Norfolk married among 2

Thomas Nashe, “Lenten Stuff,” in The Unfortunate Traveller and Other Works at 381, 394. Nashe had been born in Lowestoft and grew up at West Harling, in the rolling country east of Thetford. 3 W. K. Jordan, The Charities of Rural England: The Aspirations and the Achievements of the Rural Society at 150–66 (London: G. Allen & Unwin 1961). 4 William Camden, Britannia at 383 (1695). 5 A. H. Smith, County and Court at 3; A. L. Rowse, The England of Elizabeth at 377. 6 R. W. Ketton-Cremer, Norfolk and the Civil War at 21 (London: Faber 1969), citing Camden, Thomas Fuller, and John Aubrey, History of Wiltshire at 12 (1847).

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themselves.7 To study Coke’s social milieu is to push into a dense mass of kinship systems. For example: Nathaniel Bacon’s sister Elizabeth married Francis Wyndham. One of Nathaniel Bacon’s daughters married Roger Townshend of Raynham; another daughter married Thomas Knyvett; a third daughter married Robert Gawdy (son of Henry Gawdy, cousin to Bassingborne Gawdy). Dorothy Bacon, daughter of Nicholas Bacon, Nathaniel Bacon’s brother, married Bassingborne Gawdy—all the Gawdys were Coke’s uncles and cousins. Edmund Knyvett, Thomas Knyvett’s brother, was Coke’s brother-in-law. Nathaniel Bacon and Nicholas Bacon were Coke’s friends. Coke’s client Anne Gresham was Nathaniel Bacon’s mother-in-law. Francis Wyndham seems to have been Coke’s mentor. Coke’s father Robert Coke had been godfather to little Elizabeth Townshend; Coke’s stepfather Robert Bozoun swapped acreage with Roger Townshend; and (to complete the circuit) Robert Coke and Robert Bozoun both had Woodhouse grandmothers. Coke’s rise in the political world can be measured in terms of people who were his relatives and friends. He investigated corruption with Nathaniel Bacon and challenged church-court jurisdiction with Francis Wyndham; he heard how Thomas Gawdy had followed his own stern line on the bishops’ powers and learned from Henry Gawdy’s political use of legal history; when Roger Wyndham, Francis’s brother, was jailed, he saw Roger Townshend put up Wyndham’s bail—and when John Townshend needed a surety of his own, Coke put up his own credit. He relied on the Gawdys and Bacons and Woodhouses as allies in the Commons. Such connections are of continuing interest; it is among such gentlemen that Coke may very suggestively be ranked. The Chief Justice is too often studied solely as an individual talent, a heroic lawgiver-statesman on the model of Solon and Lycurgus. To study Coke as a member of this country-bred phalanx, shoulder-to-shoulder among his cousins and clients, reveals more broadly the values he shared with this contentious, assertive community. 7 Clive Holmes, The Eastern Association in the English Civil War at 229 (Cambridge UP 1974). The gentry relationships following are worked out from Hasler, A. H. Smith, Blomefield, and MacCulloch, as well as “East Anglian Pedigrees,” Norfolk Record Society 13 (A. Campling ed. 1940).

Magistrates and Ministers: County Politics, 1572–1583

The City of Norwich At the center of the East Anglian bulge lay the city of Norwich. It boasted a proud ring of walls and dozens of churches—thirty-six by some counts, sixty by others. When Coke was born, the city housed 10,000 subjects; by 1630, it would hold 30,000. It could plausibly claim to be the second city of the realm. Since 1404, when Henry IV issued its charter, Norwich had governed itself. As in London, an oligarchy of aldermen controlled both municipal government and most of the city’s private wealth. The Cookes and Pawes, well-to-do families with connections to the law, had typified the group. Throughout the fifteenth century, the city had picked many political quarrels—with the Crown, with local nobility, with the Benedictine monks of the Norwich cathedral priory. The sixteenth century had been less tumultuous, but the city father had retained a quiet, firm control of their own precincts. Throughout the vagaries of the Reformation, they condemned local heretics only when churchmen’s zeal or dissidents’ obstinacy left little real choice.8 In the days of York and Lancaster, the city had grown rich on woollens. That trade did not bring the same profits, in the days of Mary Tudor and Elizabeth, and between 1557 and 1559, the great influenza epidemic that swept across England killed hundreds in the city. Commerce languished until the 1560’s, when Flemish refugees arrived in Norwich, settled by royal patent and bringing with them the skills of manufacturing “the new draperies.” By the 1580’s, the textile trade had revived, and the prosperity of county gentlemen was supporting the city’s merchants, shopkeepers, and goldsmiths. The Flemings had introduced, it was commented, “not only their profitable crafts, but also pleasurable curiosities.” Something of the country lingered. Norwich was “either a city in an orchard, or an orchard in a city, so equally are houses and trees blended in it,” Thomas Fuller wrote. Many of the houses bore thatched roofs until the mid-1600’s. “Yet in this mixture, the inhabitants participate nothing of the rusticalness of the one, but altogether of the urbanity and civility of the other.”9 8 Muriel McClendon, The Quiet Reformation: Magistrates and the Emergence of Protestantism in Tudor Norwich (Stanford UP 1999). 9 Fuller, Worthies of England at 419–20. See Smith, County and Court at 3–20; McClendon, The Quiet Reformation; John F. Pound, Tudor and Stuart Norwich (Chichester: Phillimore 1988); The Norwich Census of the Poor, Norf. Rec. Soc. 40 (John F. Pound ed. 1971).

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Sir John Harrington called Norwich “another utopia, the people live so orderly, the streets kept so cleanly, the tradesmen, young and old, so industrious, the better sort so provident and withall so charitable that it is as rare to meet a beggar there, as it is common to find them in Westminster.”10 In the wake of the influenza epidemics and a failed uprising of 1570—events which had highlighted the need to prevent discontent among “the great multitude of people of mean and base sort”—the aldermen had numbered the poor and re-organized compulsory poor relief. Beyond this, earlier than most English cities, Norwich had developed a penchant for melding benevolence and industry. Very often, its citizens left money to apprentice poor youths, or finance loans to honest but impecunious tradesmen.11 Coke praised Norwich heartily: “[T]his famous and free city is justly to be commended for profession of true religion, their loyalty to their prince in all times of tumult, the good government of themselves, and the exercise of works of charity. This is the chief city of my native country.”12

Shifting Fortunes Whether the landed gentlemen among whom Coke was born were rising or falling in the social order, has been thoroughly debated. The question has not been finally settled. Nonetheless, for all the subjects of Elizabeth, there seems to have been a new tenseness to the perennial business of assessing social rank and yearly income. New opportunities could be glimpsed—trading to the Baltic and the Mediterranean, buccaneering in the Caribbean, slaving in Africa. With these choices came an intimation that, in this brave new world, fortunes would be made either at someone else’s expense or at one’s own. Certain timeless pressures had intensified. Rewards seemed greater, risks more imminent. As in all eras, some families’ fortunes were rising while other families fell—but the shifts of fortune now seemed so frequent and notable that all gentlemen’s fortunes seemed in flux. In 1572, the year Coke enrolled at the Inner Temple, a political earthquake shook the terrain of East Anglia: Thomas Howard, Fourth Duke of Norfolk, was beheaded for treason. Hassell Smith has noted: 10

Smith, County and Court at 10. Jordan, Charities of Rural England at 130, 137–42. 12 4 Inst. 258. 11

Magistrates and Ministers: County Politics, 1572–1583 The execution of the Duke of Norfolk signaled the end of an era in Norfolk’s administrative, social, and political affairs . . . . [T]he impact of the Fourth Duke had been particularly marked in Norfolk: his will had been paramount in decisions relating to the size and composition of the commission of the peace; he had greatly influenced county and borough elections; the list of sheriffs reads like a roll-call of his tenants and followers; his patronage had been a prerequisite for any person or corporation hoping to tap the flow of royal bounty; his favor had been necessary for any gentleman aspiring to the front ranks of county society.13

In such an environment, Thomas Howard’s death created a power vacuum which other forces rushed to fill. The shire had only one resident nobleman, Thomas Lord Cromwell; he lacked the ambition and the money to play any public role. The bishop of Norwich looked to assume part of the duke’s authority; so did magistrates on the county bench, gentlemen who aspired to sit on the bench, and courtiers based in London.

Ministers and Magistrates The storm built slowly. In the first half of the 1570’s, John Parkhurst was bishop of Norwich.14 Parkhurst was a committed Protestant, who had spent Mary’s reign in exile at Zurich. He was a tolerant prelate. He countenanced Puritan prophesyings (meetings built around prayer and discussions of Scripture) and did not require clergymen to wear the surplice. He preferred to remonstrate with problem cases, Protestant and Catholic alike, rather than to prosecute them. “We only dispute about ceremonies and habits, and things of no importance,” he once wrote. Sympathizing with many of the sentiments and practices of the Puritan clergy, he connived, as a rule, at their nonconformity, until forced by pressure from without to take notice of it. He “winked at” the non-wearing of the surplice, the mutilation of the Liturgy, the use of the loaf bread at the Communion instead of the wafer bread, which had been ordered by the queen’s Injunctions. . . . To his broad mind the substantials of religion, godliness and knowledge were the chief concerns, compared with which any form of Church organization was immaterial.15 13

Smith, County and Court at 47. Collinson, Elizabethan Puritan Movement; John Browne, History of Congregationalism and Memorials of the Churches in Norfolk and Suffolk at 1–51 (London: Jarrold & Sons 1877). 15 Francis Overend White, Lives of the Elizabethan Bishops of the Anglican Church at 145 (London: Skeffington & Sons 1898). 14

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Under Parkhurst’s stewardship, Puritanism flourished. In Norwich, at St. Andrew’s Church, John More was pastor. Hailed as “the apostle of Norwich,” More was known for his preaching and his character; in an era when Protestant pastors grew beards to distinguish themselves from the tonsured Roman clergy, More’s beard was reputedly the longest in England. Dozens of ministers looked to him for spiritual leadership, and aldermen packed the pews of the church, honored to be called “St. Andrew’s birds.” The city magistrates favored Puritans in choosing ministers to preach before the corporation.16 In Suffolk, the southern part of the diocese, similar Puritan sentiments prevailed. Country gentlemen presided like patriarchs over their manors. From Coke’s own house at Huntingfield, an hour’s walk north took one to the valley parishes of South Elmham, five churches whose pulpits Lord North had filled with preachers of his own fervently Protestant stamp. Westward, around Bury St. Edmunds, Sir John Higham owned five livings, Sir Robert Jermyn ten livings—other godly gentlemen dozens more. The squires and the parsons honored each other, comfortably. Whenever a sermon ended, it was remarked, [T]he chief gentleman in the place beginning with a groan, but yet with a loud voice crieth most religiously, Amen. And then the whole company of that sect follow. Amen. Amen. . . . And when the Doctor descendeth, they rise full solemnly, and embrace him, with God be thanked good brother: The lord bless you and continue his graces toward you: we have had a worthy sermon, God make us thankful for it. You shall go dine with me, saith one: nay, I pray you let him be my guest today saith another.17

Such scenes foreshadow the career of Sir Roger de Coverley. Addison’s country knight led his tenants in singing Psalms, gave Bibles and flitches of bacon to youths who knew their catechism, and hired as parish clerk the young man who best met his standards.18 Sir Roger favored altar rails and the Prayer Book service, the gentlemen of Suffolk favored long ser16 McClendon at 201–9, Patrick Collinson, “Magistracy and Ministry,” in The Religion of Protestants at 141–68 (Oxford UP 1982). 17 Albert Peel, Tracts Ascribed to Richard Bancroft at 72–73 (Cambridge UP 1953). Details on the Puritan parishes are found in Patrick Collinson, “The Puritan Classical Movement in the Reign of Elizabeth I” at 656–57 (unpublished doctoral thesis, University of London 1957). Among Collinson’s later works, “Magistracy and Ministry” in The Religion of Protestants and “Magistracy and Ministry: A Suffolk Miniature,” in Godly People: Essays on English Protestantism and Puritanism at 445–66 (London: Hambledon Press 1983) discuss the symbiotic relations between preachers and gentry. 18 Joseph Addison, “A Sunday in the Country,” The Spectator No. 112 (9 July 1711).

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mons and Geneva Bibles—but both were sincere in their intentions, and knew that such only such practical reinforcement could produce the spiritual impact they sought. The preachers relied on their patrons to protect them from harassment by the bishops. Routinely, it was alleged, they prayed that the Lord might “root out all the superstitious enormities” of the Anglican hierarchy, while ignoring any worldly sharp practices of which the gentry might be culpable (say, enclosing common lands). To their protectors they dedicated volumes of sermons and translations of the Psalms, and articulated a theory of government, “the sacred ordinance of magistracy.” This commended to justices an agreeable set of duties: to advance true religion, execute faithfully the laws, and command the obedience of all loyal subjects.19 Within the Anglican polity, this Puritan Eden could prosper only so long. In 1575, Edmund Freke had replaced Parkhurst as bishop. Freke was a political opportunist. He had begun life as an Augustinian canon under Henry VIII, yet had come unscathed through changes of religion to collect benefices and episcopal sees from Elizabeth, meantime continuing to draw his annual pension as a former monk; despite being a married clergyman, he had been blessed with the favor of the queen. So consistent a rise reflects a political talent—impressive if not commendable.20 Freke’s translation to the see of Norwich must have reflected a government decision to bring the diocese into line.

Puritanism at Bury St. Edmunds At Bury St. Edmunds, in the winter of 1578–79, a group of local magistrates—Jermyn and Higham prominent among them, with Thomas Badby—took steps to combine faith with action.21 They drafted a set of municipal ordinances which were puritanical in the most stereotypical sense: jail was prescribed for blasphemers, whipping for boys who were idle or “evil occupied” in sermon time, the stocks for drunkards, scolds, 19

Collinson, “Magistracy and Ministry,” in The Religion of Protestants at 154–56. White, Lives of the Elizabethan Bishops at 193–96. 21 Unless otherwise stated, the following discussion draws on Diarmaid MacCulloch, “Catholic and Puritan in Elizabethan Suffolk: A County Community Polarizes,” Archiv für Reformationsgeschichte 72: 232–89 (1981) and MacCulloch, Suffolk and the Tudors at 199–208. See also Collinson, Elizabethan Puritan Movement: Cockburn, History of English Assizes at 201– 9; Elliot Rose, Cases of Conscience: Alternatives Open to Recusants and Puritans under Elizabeth I and James I at 160–69 (Cambridge UP 1975). 20

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brawlers, and “ribalds.” These punishments were essentially what the law already required, but the justices soon went further. They investigated incest and heresy—thereby inviting conflict, because these offenses lay within church-court jurisdiction.22 Jermyn, Higham and Badby resisted Bishop Freke’s attempts to install a conforming minister in the parish of St. James, where the Puritan congregation had a longstanding tradition of “Geneva psalms and sermons.” They dealt roughly with a pair of local conformist clergymen, Dr. John Day and his brother-in-law, Rev. Oliver Phillips. Day was Bishop Freke’s commissary, an episcopal deputy given a local commission to enforce church discipline. In 1581, Day tried to summon questmen, i.e. impanel the church-court equivalent of a grand jury. The justices traded insults with Day and bound him over to keep the peace, on the grounds that he was invading their jurisdiction. Meantime, the justices’ favorite preachers were busy denouncing Day. After Phillips reacted, by preaching a sermon against non-conformity, the justices bound him over, too. The justices were moderate Puritans, magistrates and gentlemen. Between the Puritan gentry and the zealous followers of Robert Browne, the ancestors of English Separatism, the religious gulf was marked. The justices hoped to purify the Church of England. They did not call for believers to abandon it as a false church, fatally marred by corruption and tyranny, as the Brownists sought. The justices knew that to show any leniency toward Brownist agitators would bring charges that they were fostering sedition and endangering the social order. From 1578, they occasionally imprisoned separatists, and warned Browne himself, when he visited Bury, to proceed with circumspection. The justices at Bury must have watched, with apprehension, the course that Bishop Freke was steering. Determined to pacify his see, the bishop had begun by suppressing Puritan opposition in Norwich. He suspended twenty preachers, including John More. He put down a mutiny by his own ecclesiastical chancellor, a Puritan, who called in aid from the justices of the peace—making the episode a harbinger of conflicts to 22 Badby was Jermyn’s uncle. The Puritans of Bury had been emboldened by the queen’s progress through Suffolk in the summer of 1578, a tour during which she knighted Jermyn, stayed four nights at Badby’s house, and took action against local Catholics. Zillah Dovey, An Elizabethan Progress: The Queen’s Journey into East Anglia 1578 (Stroud, Glos.; Sutton Publishing 1996). The strength of advanced Protestant feeling in the area may be traced to clerical appointments made at Bury by Archbishop Cranmer thirty years before. MacCulloch, Thomas Cranmer at 456–57.

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come. Freke nearly lost those battles, but ultimately he won them all. He reasserted episcopal power so firmly that he resumed the practice of burning heretics. By 1582, with his episcopal seat pacified, the bishop was ready to move against the Puritan free state at Bury St. Edmunds.23 Freke was supported by formidable allies, Chief Justice Christopher Wray and Serjeant-at-Law Edmund Anderson.24 Publicly “indifferent” on religious matters, Wray came from a Roman Catholic family in Yorkshire. He was unlikely to be lenient toward Puritans. Yet Wray was mild when compared to Anderson, a harsh and bad-tempered man—“the hottest man that I ever did see sit in judgment,” an observer wrote.25 Moving across the assize circuits, year by year, Anderson had prosecuted Catholics in Hampshire, ferociously arguing the state’s case against Father Edmund Campion. Later he would prosecute Puritans for sedition in Devon; later still he would vow to hunt every Puritan out of the Midland circuit. He remains one of the most brutal judges in English history. With Anderson’s arrival, J. S. Cockburn has noted, “the forces of reaction received decisive reinforcement. . . . It seems highly unlikely that his arrival [in Bury], the only serjeant ever to ride the highly prized Norfolk Circuit, was coincidental.”26 In the summer of 1581—the same year he argued against Coke in Shelley’s Case—Anderson began indicting Bury’s Puritan leadership. He meted out fines to Brownists in Norwich. In the summer of 1582, he sentenced eleven defendants for recusancy and convicted three of contemning the Prayer Book. (The Suffolk assizes were customarily held in Bury. Cunningly, to ensure a quiet venue, the judges shifted the assize sessions twelve long miles west, to Newmarket.) Bishop Freke praised the judges’ work. Anderson basked in a knighthood (rarely granted by the queen) and a promotion to Chief Justice of Common Pleas. Meantime, the government’s agents were busy in Bury, amassing evidence which made for a singularly bloody year ahead. Most energetic of the government’s men was Richard Bancroft, chaplain to the Lord Chancellor. Bancroft was to make for himself a long 23 Smith, County and Court at 208–23. Two heretics were burned during his episcopate, in May 1579 and September 1583. Bishop Edmund Scambler carried on, executing two more in 1587 and 1589. McClendon, The Quiet Reformation at 248–49. 24 Unless otherwise stated, the following account of Anderson’s career follows the blunt précis set forth in Cockburn, History of English Assizes at 201–9. 25 Id. at 205. 26 Id. at 201.

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and eminent career, “establishing his reputation,” as Conrad Russell aptly put it, “primarily as an ecclesiastical detective.”27 In St. Mary’s Church, in Bury, Bancroft studied the Biblical motto which had been newly painted around the royal escutcheon. The quotation slandered the queen by implication, Bancroft observed. What was quoted blandly praised Elizabeth: I know thy works and thy love and service and faith and thy patience and thy works, and that they are more at the last than at the first. However, the verse immediately following (which was not painted) referred to the woman Jezebel which calleth herself a prophetess, who deceived God’s servants to make them commit fornication and to eat meats sacrificed unto idols.28 This scandal was used to justify heavy-handed judicial action. Very likely on the judges’ advice, Jermyn and Higham were removed from the commission of the peace. At the Lent assizes of 1583, the judges convicted three Brownists: two booksellers, Elias Thacker and Henry Copping, and a bookbinder, Willliam Gibson, who had paid for painting the offending inscription. At the summer assizes of 1583, the judges renewed their heavy-handed campaign. Protests came in from “the principal men of Suffolk,” a broad array of gentry headed by Lord North and seven knights. Lord North and the knights presented a petition to Wray and Anderson at the judges’ lodging in Bury, asking that the judges bear more gently with men of religion. Anderson and Wray ignored the protests, and jailed five of the shire’s most popular preachers. To further menace the opposition, the judges began hanging their prisoners—Thacker on July 4, Copping the next day. The deaths were premeditated. Only on June 30 had the royal proclamation issued declaring “seditious and schismatic” the Brownist tracts which Thacker and Copping had distributed; Anderson must have carried the proclamation with him as he rode up to Suffolk. The judges then traveled on to Thetford, where they hanged another Brownist, William Dennis.29 After the hangings, the judges gave Bancroft a keepsake, a copy of Robert Browne’s Three Forms of Catechisms, one of the books for which 27

Conrad Russell, The Crisis of Parliaments: English History 1509–1660 at 263 (Oxford UP

1971). 28 Revelation to St. John 2: 18–20. Bancroft further discovered that it had been intended originally to quote another passage, Revelation 3: 15–16: I know thy works that thou are neither cold nor hot I would thou werst cold or hot, therefore because thou art luke warm and neither cold nor hot it will come to pass I will spew thee out of my mouth. MacCulloch, “Catholic and Puritan,” Archiv für Reformationsgeschichte at 72: 274–75. 29 MacCulloch, Suffolk and the Tudors at 205–8.

Magistrates and Ministers: County Politics, 1572–1583

Thacker and Copping had died. The other copies of Browne’s book were burned. Bancroft kept his volume; it was on his shelves at Lambeth Palace when he died a quarter-century later, seventy-third Archbishop of Canterbury.30 The gentlemen of Suffolk appealed to the Privy Council, to Burghley and Sir Francis Walsingham. The assize judges found support from John Whitgift, newly installed as Archbishop of Canterbury. Two more Brownists were hanged, more ministers jailed and deprived, further protests lodged. And at around this point, in the autumn of 1584, the rising lawyer Edward Coke first linked himself to the Puritan cause. He appeared and argued on behalf of William Fleming, one of the preachers held in Bury’s jail. Family connections probably drew Coke in. Two of his sisters, Ursula and Anne, were married into Puritan families. With his own marriage to Bridget Paston, in August 1582, Coke must have considered, he had become Robert Jermyn’s brother-in-law; Bridget’s sister Elizabeth had married Ambrose Jermyn, Robert’s younger brother.31 More than that, as a junior lawyer riding the Norfolk circuit, Coke had seen first-hand the judges’ campaign of repression. He had personally made notes on a suit by Oliver Phillips against Justice Badby, part of the churchmen’s counterattack.32 He had seen the judges snub Lord North and his escort of Puritan knights. And he must have heard Wray and Anderson confer with Bancroft, with their unfamiliar accents, from Yorkshire and Lincolnshire and Lancashire, three outsiders deciding what local men should hang. Fleming had been indicted under the Act of Uniformity, “because he 30 Congregationalist historian Albert Peel noted that the copy preserved by Bancroft, “almost certainly saved from the conflagration at Bury,” was the only copy known to him. Tracts Ascribed to Richard Bancroft at xxi–xxii. With a show of even-handedness, the judges handed down lesser sentences against seven Roman Catholic recusants. 31 J. J. Muskett, Manorial Families of Suffolk at 2: 257, a kinship elucidated by Diarmaid MacCulloch. Ambrose Jermyn maintained his father’s loyalty to the Church of Rome, which points out the hothouse aspect of Elizabethan religion and politics; it was through a Catholic recusant that Coke traced his links to a notable Puritan activist. Ketton-Cremer cautions that such “widespread cousinship did little to prevent personal animosities or political rivalries,” as it is “easy to pursue these ramifications all over East Anglia, and to trace family relationships between the most committed Royalists and the most obdurate Puritans.” Norfolk in the Civil War at 35. 32 At 4 Co. Rep. 19a, Coke reported a slander action by Philips against Badby for the allegation that he had “made a seditious sermon, and moved the people to sedition this day.” Coke also knew well the Drury family of Bury, local conservatives on whom the judges relied; he handled legal matters for them, including supervising the will of Sir William Drury (who left him a horse and silver bowl). R. C. Bald, Donne and the Drurys at 21; Tey’s Case, 5 Co. Rep. 38a (1592); Sir Drew Drury’s Case, 6 Co. Rep. 73a (1607).

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had given the sacrament of baptism in other form than is prescribed in the said statute, and in the Book of Common Prayer, and the said indictment was before the justices of assize.”33 Wray and Anderson indicted Fleming a second time, and sentenced to him a year’s imprisonment, with loss of all “spiritual promotions.” Fleming brought a writ of error. John Clench and Coke had picked out a flaw in the second indictment, its failure to recite the first indictment. Clench argued by analogy; Coke cited three Year Book cases.34 The case-report is short and murky—but the result is clear: Fleming soon went free, home to his congregation in Beccles. He enjoyed the favor of the Earl of Warwick, whom he served as chaplain, and had the prestige to lead his townspeople in a long-term struggle over common lands. Fleming was still at his pulpit in 1602. He may have considered Coke’s intervention a providence; certainly others of his stamp would consider Coke their shield and friend.35 33 Flemming’s Case, 1 Leon. 295 (Mich. 1584). Irregular baptisms were a favorite target of Bancroft: “the orders prescribed are utterly neglected, that every one will have his child christened after the fashion of his own doctor,” he wrote. “Within four mile compass of Bury, there are six or seven kinds or forms of baptism.” Tracts Ascribed to Richard Bancroft at 70–71; MacCulloch, Suffolk and the Tudors at 206, 209. 34 As Fleming had matriculated at St. John’s College in Easter term 1569, possibly he knew Coke from that time. 35 In 1597, episcopal officials noted that Fleming did not read the quarterly injunctions, and his churchwardens were cited for not having a surplice and other required churchfurnishings. Evasively and diplomatically, the churchwardens blamed these omissions on a recent fire. “Bishop Redman’s Visitation, 1597,” Norf. Rec. Soc. 18: 114 (J. F. Williams ed. 1946). In 1602, Fleming still had not repaired the damage to the chancel. East Anglian Notes & Queries 1: 241 (1858–63). On the Beccles Fen common-lands controversy (in which Coke represented the faction Fleming opposed), see MacCulloch, Suffolk and the Tudors at 326–28; on Fleming’s chaplaincy, see Beccles Town Archives A4/51 (1586). Thanks to Diarmaid MacCulloch for the latter references.

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chapter 6

Challenges to Authority: County Politics, 1583-1592

Bury St. Edmunds was not the only place where pressure led to confrontation. On the North Sea coast of Norfolk, around the fishing towns of Sheringham and Cromer, local conflicts brought other Puritan leaders to the fore. Here the controversies were broader and more complex. Religion dominated the disputes in Suffolk. In Norfolk, conflict simmered for a generation over grievances with local government, corruption, and high-handed conduct by royal officials.1

Coke and Sir Nathaniel Bacon Sir Nathaniel Bacon, whose seat was at Stiffkey on the northern coast, was the most prominent of Norfolk’s Puritan leaders. He had a well-stocked library and a fondness for chamber music, cultured tastes not unexpected in the son of a Lord Keeper. Nonetheless, Sir Nathaniel was a thoughtful, austere man, “a strait-laced figure who may well have been more respected than loved,” as Hassell Smith has written, and on his manors he presided over a godly commonwealth. He bought provisions from local farmers and sold his wool to local weavers. On feast days, like a biblical patriarch, he entertained servants and tenants. He 1 Unless otherwise stated, the following discussion of political disputes in Norfolk draws upon A. H. Smith’s County and Court.

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arranged for sermons by able preachers and fostered prophesyings, long after Bishop Freke had moved against them. Bacon was a long-serving justice of the peace. Like other justices, he took responsibility for routine police work, bringing cases at quartersessions, and enforcing statutes. He had sound legal training and an energetic attitude, particularly on suppressing ale-houses. When government policy was called into question, he was often the justice who was asked—or took it upon himself—to set down in writing the opposition’s views. Toward the Anglican hierarchy, his attitude was uncompromising. The bishops’ officials, he remarked, were “so much affected to the canon law that some [were] infected with Popish religion.”2 Sir Nathaniel Bacon was Coke’s friend, as was another of the Lord Keeper’s sons, Sir Nicholas Bacon of Redgrave Hall in Suffolk. Not only were they caught up in the same bloodlines and marriage bonds, the mass of Greshams and Gawdys and Townshends and Knyvetts. Coke had also served as Nathaniel’s lawyer, starting in the 1570’s. From the early 1580’s, he was also closely linked to Nicholas.3 At Sheringham and Cromer, as England prepared for war with Spain, new fortifications were proposed, breakwaters, piers, and a masonry blockhouse. To finance these improvements, the government allowed to the townsmen of these boroughs—whose petitions had been encouraged and promoted by their neighbors at Baconsthorpe, Sir Christopher Heydon and Sir William Heydon—licenses to export grain. This offered a rare opportunity for corruption. Because the government routinely forbade grain to be shipped overseas, for much of Elizabeth’s reign, enterprising East Anglian merchants with corn on their hands could export it only by the hugger-mugger loading of train in remote creeks or by purchasing an export permit from a Crown licensee. A license to export 100 quarters of grain fetched at least £7, so that trafficking in licenses became a profitable business: profitable to the Crown which granted these licenses . . . profitable, in turn, to licensees who quickly sold them to eager merchants; profitable to the merchant who proceeded to export many times the quantity of corn permitted by his license; profitable, fi2 T. E. Hartley, Proceedings in the Parliaments of Elizabeth I 1593–1601 at 3: 82 (Leicester UP 1995). 3 For Nathaniel, Coke routinely served as an attorney in family matters. See passim “Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 49 (1982–83). As early as October 8, 1584, the link between Coke and Nicholas becomes clear to the historian. On that day, in one meeting, the city fathers of Ipswich voted to make Sir Nicholas Bacon II a free burgess of the town and retained Coke as their legal counsel, at a yearly fee of “five marks half yearly by moities.” Nathaniel Bacon, Annalls of Ipswch at 340.

Challenges to Authority: County Politics, 1583–1592 nally, to men like Sir Christopher and Sir William Heydon who knew how to manipulate the system to their private gain.4

Sheringham’s townspeople were licensed to export 20,000 quarters of grain, Cromer’s townspeople licensed to export 30,000 quarters more. If a license to export 100 quarters was worth £7, the lucre of the enterprise can readily be calculated. Sir William Heydon was a driving force behind the project. He supplied a mantle of local respectability and influence at court—a hard edge, too, when resistance threatened. He held the position of vice-admiral for Norfolk, which lent him unique authority along the North Sea littoral. Heydon confiscated mariners’ rigging and cargoes, and abruptly levied fines on the farmers of the vicinity.5 Forceful in collecting money, Heydon omitted audits of how these funds were spent. He supplied timber from his own estates to the townsmen in charge of the project. He sold the trees and accepted money for them; whether he delivered the timber remains an open question. Arrogating further power to himself, Heydon claimed that he was empowered to try criminal cases in his admiralty court. Mariners and landsmen alike had reason to fear admiralty prosecution. In admiralty tribunals, civil-law procedures were used. Defendants could be summoned without being fully apprised of the charges against them. Once before the court, they could be required to answer questions under oath, possibly to incriminate themselves. Such proceedings offered fewer safeguards than common-law trials at quarter-sessions or the assizes, where a defendant could expect a full public hearing and a trial by jury. The Heydons were a family on the decline. They proved variable in matters of religion, obsessed with astrology, reckless with debt, liable even to spite and sue each other.6 A Puritan justice and a rising lawyer seemed providentially suited to challenge such erratic personalities. As 4

Smith, County and Court at 234–35. Under two Tudor statutes, all farmers were required to plant a rood of flax or hemp for every 60 acres under tillage. The projectors held a patent authorizing them to compound with all those who had violated these laws. The power to compound, practically speaking, meant that they could fine anyone who had not planted enough flax or hemp, unless the luckless farmer paid them off. Smith, County and Court at 248. 6 A typical combination of arrogance and negligence can be seen at the Heydons’ ruined castle of Baconsthorpe. Here they undertook the ambitious, costly project of fortifying a manor-house, but built their curtain wall with loopholes for firearms on the wrong side of the gateway, so that the garrison could fire only at the shielded left side of approaching attackers. The elemental rule of medieval military architecture was to build approaches so that attackers would have to present their unshielded right sides to the defenders’ fire. 5

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early as 1583, Coke and Nathaniel Bacon were working together at quarter-sessions—Bacon directing the proceedings, Coke serving as his counsel.7 In the mid-1580’s, Bacon was directing Coke—his man in London— to closely watch a new export-license scheme proposed for Sheringham. “They of the town who prefer the petition do rather seek their private lucre than the public good,” he observed. Should the Crown grant another license, Coke was to ensure that it “may so be governed as the former abuse may not again be suffered.” The tone was moralizing, and Coke echoed it. Writing to Bacon, he closed his letter by commending Bacon to the protection of the Almighty.8 From his years as Bacon’s protégé, Coke may also have acquired from the older man some of the distrust he later vented towards the admiralty courts. Acting under an Exchequer commission, Bacon had personally investigated Heydon; beyond that, he denounced and complained, across two decades, of abuses by other admiralty officials. Bacon’s attack on the use of informers in the vice-admiral’s court may be echoed in Coke’s assertion that the informer “doth vex and pauperize the subject and the community of the poorer sort, for malice or private ends and never for love of justice.”9 Tempers on both sides were hot. In November 1584, Coke was slandered by a gentleman named Thomas Baxter. At the summer assizes just past, Baxter claimed, “Master Coke [had been] of counsel with both the plaintiff and defendant, and took fees and was retained by them both, whereby one party’s cause was lost; and so [he] did play on both hands.” Coke sued.10 The result is unclear, but the case seems clearly rooted in the feud between Bacon and Heydon. The slander was uttered at Stibbard, in northern Norfolk, on November 16, 1584, a venue and time when charges were being exchanged over Sheringham. The Thomas Baxter whom Coke sued was very likely the same Thomas Baxter who kept accounts for the export of grain from Cromer—that is, prepared the dubious account-books which Sir William Heydon so studiously avoided reviewing. Apparently, Heydon’s minion made the mistake of disparaging Bacon’s lawyer. 7

“Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 49: 237–38, 267. Id. at 237. 9 Smith, County and Court at 240–44; 3 Inst. 194. 10 “Select Cases in Defamation,” 101 Selden Society 66, 67 (R. H. Helmholz ed. 1985). To be accused of being an ambidexter, a double-dealer, could wound and damage an Elizabethan attorney as thoroughly as any modern conflict-of-interest charge. Jonathan Rose, “The Ambidextrous Lawyer: Conflict of Interest and the Medieval and Early Modern Legal Professional,” University of Chicago Law School Roundtable 7: 136 (2000). 8

Challenges to Authority: County Politics, 1583–1592

Sir Arthur Heveningham Bacon foreshadowed men like John Hampden and Oliver Cromwell, prosperous churchgoing gentlemen who claimed to represent the good of the nation and to oppose the venality and decadence of the royal court. The man who led the “court” faction in Elizabethan Norfolk, who served as a foil to Bacon for more than twenty years, was Sir Arthur Heveningham—a forceful, demanding personality who used influence and served court interests as assiduously as Bacon enforced the law at quartersessions. When it comes to summarizing Heveningham’s career, the staid History of Parliament Trust is moved to vivid, sweeping phrases: He was an ambitious, litigious, tenacious person, temperamentally a party leader. By 1588, when he became one of Lord Hunsdon’s deputy lieutenants in Norfolk and Suffolk, he had already provoked the hostility of the strong puritan group of gentlemen in both counties; and in the 1590s, supported by Hunsdon’s influence at court, he and his adherents engaged in a series of struggles and feuds with their opponents of almost Homeric quality. In both counties the puritan justices of the peace blocked him in quarter sessions and frustrated him in the exercise of his authority in a way that reduced law to a farce.11

A Suffolk landowner, member of a well-known family, Heveningham established himself in Norfolk in 1574. He spent the 1580’s and 1590’s seeking to dominate Norfolk politics. He served as justice of the peace and sheriff; he tirelessly sought posts on county commissions; he stood unsuccessfully for Parliament. His ruthlessness drew comment. He had “challenged more superiority, authority, and jurisdiction over other men and their livings,” a Norfolk lawyer wrote, “than the best nobleman that hath lived in [this] county hath done.”12 Coke and Heveningham knew each other well—and, at first, knew each other as friends. They were neighbors in Suffolk. From the upper windows of his seat of Huntingfield Hall, Coke could look east a mile to the gables of Heveningham Hall, a mansion which overshadowed his own. In 1587, when Coke’s son Arthur was christened, Sir Arthur served as godfather for his namesake.13 That Edward Coke and Arthur Heveningham sought this connection, so late in the 1580’s, says much about each man’s ambition. Two formida11

Hasler, The House of Commons 1558–1603, “Norfolk.” Smith, County and Court at 158. 13 Vade Mecum at 113. 12

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ble personalities stood by the font in St. Mary’s that day. Coke must have recognized the energy with which Heveningham grasped for money and authority—probably considered that the man was very likely to acquire the power he sought. Heveningham must have understood, at least as well as Coke, the lawyer’s capacity for sharp dealing. Their friendship lasted no longer than most other alliances between rivals. Not long after Arthur Coke had ceased to be a babe in arms, Coke and Heveningham took separate paths.

Justices, Patents, and Deputy-Lieutenants Heveningham’s story—how he grasped for power, and how the godly justices of Norfolk and Suffolk thwarted him—begins with a waterlogged stretch of highway in Suffolk. Through the parish of Metfield, on the northern border of Suffolk, passed the main highway from Cambridge and Bury to Southwold, a section of road known locally as Christmas Lane. Rutted by traffic and flooded by seeping springs, this was a notoriously bad stretch of road. In 1581, Heveningham obtained from the Crown a patent which required him to repair Christmas Lane. This promised many obligations, but also offered attractive opportunities for graft. Effectively, the patent authorized Heveningham to finance his repair work by levying taxes. Under the terms of the patent, he was to give estimates of his repair costs to the justices of Norfolk and Suffolk, who would then order constables to collect the necessary funds. In 1582 and 1583, when Heveningham submitted his estimates, he did not find it easy to collect. In both shires, the magistrates questioned his claims. Heveningham pressed vigorously—lobbied the Privy Council, won allies among the justices, even waylaid and wounded the lawyer Edward Flowerdew, who had spoken against him. Yet it remains unclear whether Sir Arthur ever collected. In the Suffolk quarter-sessions, he was bitterly opposed by the same Puritan justices who opposed Bishop Freke. In Norfolk he was opposed just as strongly by similar men—magistrates accustomed themselves to tax and spend, who were disgruntled and suspicious that an outsider might usurp their role. One of their peers described them well: “the graver sort of the justices.”14 During the 1580’s, faced with the threat of war with Spain, Elizabeth’s 14

Id. at 232.

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Privy Council took steps to modernize the defense of the realm. Since medieval days, local justices had been responsible for mustering and equipping each county’s militia. The Council changed that, moving to create a centralized administrative system run from Westminster. The new musters system represented an expansion of Council control. For each county, a Councillor was appointed Lord-Lieutenant—an old position which the Council invigorated with new responsibilities. Each LordLieutenant in turn appointed deputy-lieutenants, gentlemen to handle administration at ground level: to organize militia companies, name officers, schedule drills, and collect money to pay the costs involved. The deputy-lieutenants enjoyed broad powers which rivaled local magistrates’ authority: credit among the powerful, ready access to the Privy Council, and the ability to threaten any recalcitrant subject with imprisonment by sending him or her before the Council Board. The lieutenancy system, for all areas involving the military, provided a chain of authority which bypassed the justices. Deputy-lieutenants derived their powers directly from the central government. They were more likely to ignore regional and local interests than were the justices of the peace, whose power was rooted in local consensus. Given the strength of local interests, troubling political questions were raised by this shift of power to central government. The new system promised much to gentlemen who sought political leverage—as Sir Arthur Heveningham readily recognized. In 1588, Heveningham took up a commission as deputy-lieutenant for both Norfolk and Suffolk. He retained his position on the justices’ bench; he complemented it with a deputy-lieutenant’s powers; and he found his new authority congenial. Heveningham’s “complete indifference to the views and feelings of his neighbors,” Hassell Smith has dryly commented, “made him a willing agent of Crown and Council.”15 And, conversely, the Privy Council’s determination to impose central control, with its indifference to local complaints, lent Heveningham a formidable degree of royal authority, which he did not scruple to employ on his own behalf. Forgetting his disappointment with the Christmas Lane patent, Heveningham renewed his concern with the highways of East Anglia. In 1588, the same year he became deputy-lieutenant, he and his allies obtained another patent to keep in repair a stretch of highway—this time, the seven miles of main road between Attleborough and Wymondham. This patent empowered Heveningham to surcharge subjects who used the highway a 15

Id. at 159.

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rate “in the discretion” of the patentees.16 Again Heveningham faced opposition when he tried to collect his rate—and again from the same Puritan justices. Jermyn and Higham had always opposed him in Suffolk, Nathaniel Bacon had consistently opposed him in Norfolk, and this Puritan cadre was now reinforced by Nicholas Bacon and Henry Gawdy and Francis Gawdy—Coke’s friend and Coke’s cousins. This time, however, armed with a deputy-lieutenant’s powers, Heveningham struck back, indulging violence under color of law. When constables refused to carry out his orders, he had them arrested, asserting that tax-collection was a “martial affair” under his authority as deputy-lieutenant. When lawsuits challenged his actions, Heveningham issued warrants to arrest the lawyers. At King’s Lynn, brandishing his deputy-lieutenant’s warrant—deliberately confusing his public authority as deputy-lieutenant with his personal claims as a highway patentee—Heveningham forced the aldermen to vote him £10. The opposition was not cowed. The Puritan magistrates brought action in Star Chamber, alleging embezzlement. Francis Gawdy and Nathaniel Bacon declared that habeas corpus lay to free anyone whom Heveningham might jail. Henry Gawdy marshaled legal history to prove that constables answered to the justices of the peace, not to martial authorities. Francis Wyndham, Judge of the Common Pleas, was unimpressed with government charges that his resistance to the crown was disloyal. It was routine, he responded, for courts to rule on the queen’s authority, as common “to decide of the validity of her patents as it was of the subjects’ evidence.” In January 1591, the justices of Norfolk moved decisively against Sir Arthur. “The Bench responded by rebuking Heveningham in the most public manner possible,” Dr. Smith observes: “it bound him over in open sessions to keep the peace—the greatest humiliation that could have been devised for one of the foremost gentry.”17 Amid this political turbulence, Coke began to rise. Beginning in 1586, he served as justice of the peace, and was steadily reappointed during the remainder of Elizabeth’s reign. His success in the courts had garnered him political resources of his own. For the Parliament of 1589, he engineered his own election to the Commons. He was returned as a Member for Aldeburgh, the Suffolk borough where he had recently reasserted the Howard family’s seigneurial rights. The Howards who nominated Coke 16

Id. at 255. Id. at 256, 263. The year 1591 was a bitterly political year. Usually, Coke attended sittings of the justices only three or four times per year; in 1591, however, he attended fourteen sessions. Id. at 352. 17

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and the burgesses who elected him gave Coke an honor which Heveningham would never achieve.18 As a lawyer, Coke played a significant role in harassing Heveningham and his cohorts; the guerrilla litigation which plagued them was unremitting. Sir Miles Corbet’s Case (1585) pitted Sir Edward Clere, one of Heveningham’s allies, against Puritan sympathizer Sir Miles Corbet, over rights to “shack,” a local right to pasture cattle on stubble. In Windham and Sir Edward Clere’s Case (1589), Roger Wyndham sued Clere for wrongful arrest, over Clere’s claim that he had stolen a gelding. Nor was Francis Wyndham idle. In Justice Windham’s Case (1589), he brought a lawsuit over various leasehold properties. Suggestively, the leases in question had originally been granted by the Norwich dean and chapter.19 Most or all of these lawsuits Coke must have brought or abetted.20 The plaintiffs were his friends, his children’s godparents, sometimes his business partners. He had handled their legal affairs and had a family lawyer’s knowledge of their dealings. However impeccably apolitical their grounds, these lawsuits were brought by bitter adversaries in the highly charged atmosphere of Elizabethan Norfolk. De facto, they were political cases, and Coke’s role in them marked him as a political figure.

Controversies over Concealment At the same time Heveningham was seeking to exact his highway rates, an even more notorious effort at extortion was proceeding. This involved the lands of the dean and chapter of the cathedral of Norwich. 18 In the Parliament of 1589, Coke was named to committees on the Tonbridge grammar school, privileges, legal matters, and disorderly common inns. More notably, he took part in the Commons’ efforts to reform abuses in purveyance. When the queen resisted this, Coke was among the committee-men delegated to search the precedents and suggest a compromise. Hasler, House of Commons 1558–1603, “Edward Coke.” 19 Sir Miles Corbet’s Case, 7 Co.Rep. 5a (1585); Windham and Sir Edward Clere’s Case, 1 Leon. 187 (1589); Justice Windham’s Case, 5 Co. Rep. 7a, Moore 191 (1589); see also Henningham and Windham’s Case, 1 Leon. 261 (1576). 20 Miles Corbet was godfather to Coke’s son Robert in 1587; in 1596, Anne Reade, “desponsata de Michael Stanhope,” was godmother to Coke’s daughter Bridget; Dame Anne Gresham had been godmother to Anne Coke in 1584. Vade Mecum at 112, 113, 117. See further Corbet’s Case, 1 Co. Rep. 77b (1599–1600); Sir Andrew Corbet’s Case, 4 Co. Rep. 81b (1599); 7 Co. Rep. 44a; 3 Co. Rep. 86a. Papers calendared in the Norfolk Record Office relate a complex business relationship between essentially all these parties. In 1583, Roger Townshend leased four manors to Coke, Wyndham, Corbet, and Michael Stanhope for 21 years. In 1585 Townshend made a feoffment to uses to Coke and Corbet of several estates in Essex (including some of the former manors). NRO shelfmark BRA 926/39, BRA 9926/40 (among Townshend papers).

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During the dissolution of the monasteries, many monastic properties had not been duly surrendered to the government. Rather, they had been “concealed,” surreptitiously retained by the farmers or graziers who had held them of the Church. In the 1570’s, seeking to recover these hidden assets, the crown began to issue patents to courtiers, granting them any concealed lands that their assiduous searches might discover. This encouraged extortion and fraud. Such “concealers” had every motive to pry into landholders’ chains of title. They could challenge not only cases of outright concealment, but any instance where a deed was unclear, a transfer imperfect, or where full records could not be found. Landholders detested concealers—feared them, too. Since few monastic properties remained in the hands of their original grantees, concealers’ inquiries promised to undo the expectations of later purchasers, people who had not known of any misconduct.21 In 1538, amid the dissolution of England’s monasteries, Henry VIII’s lawyers had bungled the confiscation of the lands belonging to the priory of Norwich Cathedral. A surrender and regrant, made under Edward VI, failed to clear up all doubts about the title. Such problems notwithstanding, the dean and chapter of Norwich continued to lease out land, and, by the 1570’s, most of this property was held on leasehold by gentry and yeomen. In 1583, a syndicate of concealers won an Exchequer ruling which gave them title to all the lands of the pre-Reformation priory of Norwich. The Anglican dean and chapter protested, appealed, and continued to grant leases. The churchmen found allies among the same country gentlemen and common lawyers who were opposing Heveningham’s attempts to arrogate power. The concealment claim was not a clerical issue. Five decades and two generations after the Dissolution, former monastic lands had traded hands so many times that it was the county’s lay proprietors—rather than the dean and his canons—who had the most to lose. The concealment syndicate and the county gentlemen fought over the cathedral lands for more than 15 years. A test case was brought over the parsonage and glebe land of Martham, a village east of Norwich. The concealers granted a lease of this property to William Downing, a Yar21

C. J. Kitching, “The Quest for Concealed Lands in the Reign of Elizabeth I,” Transactions of the Royal Historical Society (5th Series) 5: 63–78 (1974); Herbert Hope Lockwood, “Those Greedy Hunters After Concealed Lands,” in An Essex Tribute: Essays Presented to Frederick G. Emmison, ed. K. Neale (London: Leopard’s Head 1987), 153–70.

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mouth lawyer. The dean and chapter leased the identical property, and entrusted their rights therein, to Thomas Eden, a yeoman of the twofisted sort. This confidence was not misplaced. During the five years Eden and Downing were set against each other—from 1588 to 1593, the bitterest years of the dispute—the parsonage at Martham changed hands at least 15 times, taken and retaken like a border strongpoint. Neither side scrupled to employ legal chicanery or extra-legal violence. Eden and his men manhandled Downing’s servants, reaped crops which Downing’s men had sown, and impounded Downing’s straying livestock. (Impounding straying livestock was the conventional, pretextual way to initiate a trespass suit. However, there is no indication that Eden meant to create a pretext; he seems to have seized the livestock in tough-minded earnest.) Repeatedly driven out of the parsonage, Downing and his men just as often fought their way back in, once with a battering-ram. Several times, when naked force seemed unwise, Downing called in—who else?—Sir Arthur Heveningham, who restored his possession under color of law. To balance authority with authority, Eden called in favors from Sir Miles Corbet, then sheriff of Norfolk. Corbet stood guard while Eden’s men harvested the glebe lands. In court after court, Downing and Eden sued each other: at the Norfolk quarter-sessions, in the Exchequer, at the assizes, in King’s Bench. In 1591, after three futile years, his legal actions frustrated, Downing besieged the parsonage. Eden and his farmhands sortied, an affray ensued, and one of Downing’s men received wounds from which he died. Twice, at least, Downing and the concealers tried to indict Eden for this killing, only to have the charge rejected by Norfolk jurymen—Norfolk jurymen who were chosen and overseen by Sir Miles Corbet. In the litigation over Martham, Coke played an important role, barely off-stage. For several years, he seems to have counseled the dean and chapter—then in 1593, as Speaker of the House of Commons, used his new eminence to ensure their victory. A few clues betray his presence. Miles Corbet was his friend; so was Michael Stanhope, who advised the sheriff not to impanel jurors who might fear Heveningham. In Coke’s Reports, the affrays at Martham figure twice. Coke’s brief report of Franklin’s Case (1593) announces the ruling of “Coke the Queen’s solicitor” that a general pardon ended proceedings against defendants in a Star Chamber proceeding. In an equally brief report of Eden’s Case (1594), Coke

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succinctly reports the ruling that cases involving title to crown lands should be tried where the land is situated.22 Neither case-report breathes a word of political controversy. But Coke the queen’s solicitor who intervened was Coke the ally of Nathaniel Bacon and Miles Corbet, and the Star Chamber action to which his ruling put an end was perhaps the concealers’ last effort to dispossess Eden. The decision in Eden’s Case was equally crucial to the cause of the dean and chapter. Had a different venue been available, a less sympathetic sheriff might have overseen the trial. The still surface of the reports belies their political depths.

Coke’s Own Land War: Longham Priors In Launditch Hundred, around Mileham and Tittleshall, Coke had made himself a landowner to be reckoned with. Here he found himself engaged in a smaller version of the Martham land war. At Longham, a hamlet outside East Dereham, his stepfather Robert Bozoun had claimed rights to the rectory, which was also claimed by another local squire, Arthur Futter. With another local gentleman, George Clement, weighing in on Bozoun’s side, a three-cornered legal struggle had developed. Coke had stepped in as his stepfather’s lawyer, winning one of his own early victories.23 By the early 1590’s, Futter had made his mark as one of the deputylieutenants’ men. He seems to have abused his position as bailiff for Mitford Hundred (allegedly, on orders from Sir Edward Clere, which ultimately means on orders from Heveningham). He had jailed men without warrants, it was said—exacted ransom by charging heavy jail fees, taken bribes to exempt men from jury service. In particular, he harried Puritan believers, three times arresting a preacher named William Holby. At this point, the old battle-lines re-emerged: the sureties whom Holby found were George Clement and Adam Bozoun.24 Clement and the Queen’s Attorney seem to have arranged a cunning legal ambush. Clement wrote to Coke, complaining of “Arthur Futter, 22

Franklin’s Case, 5 Co. Rep. 46b (1593); Eden’s Case, 6 Co. Rep. 15b (1594). Various parts of the litigation are reported as Futter and Boroome’s Case, Goldbold 39 (1584); Bozoun’s Case, 4 Co. Rep. 34b (1584); Foster v. Whiscarre, BL Add. MS 25296, Harl. MS. 1633, fo. 98; Futter v. Clemens and Wiskard, 12 Co. Rep. 65, Cro. Jac. 296 (1584). See Charles M. Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law at 2: 218–31 (New York: Oceana Publications 1994). 24 Smith, County and Court at 145, 149. 23

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your farmer, who is as bad a neighbor as ever came to Longham.” Clement alleged that Futter had greatly troubled him, both regarding lands he held of Coke and other lands he held of the Crown, the manor of Longham Priors. Futter had wrongfully “plowed and carved” Clement’s land at Longham Priors. Clement had impounded Futter’s straying sheep; Futter had sworn out a false affidavit to get them back. Futter had impounded Clement’s livestock, causing the death of a prize gelding worth £7. Futter had hired “a bad roguish fellow whose name is John Woffett, who doth counterfeit simplicity, and will not speak or hear, but when he liketh.” Futter and Woffett went about “beweaponed, with their bushbills and III or IV dogs,” tormenting Clement’s cattle and swine. They had broken Clement’s hedges and fences. Futter’s henchmen had assaulted Clement’s servant William Alby, breaking two staffs on him. Futter’s men had wrongfully felled Coke’s timber; Coke’s servants Constable and Heywood could supply details. For Futter, Clement concluded, this misconduct was nothing new; he had twice before been convicted of riot. Moreover, Futter had failed to keep up his leasehold premises; he had let the houses and fences decline, at least 20 marks’ value.25 To any canny lawyer, Clement’s letter offered many possibilities. Farmers and husbandmen had sued on such trespasses time out of mind, and Clement—very carefully—had recited each clause of the time-honored litany. Torts were named. Damages were specified. Witnesses were identified. Strategically, Clement’s allegations might allow a plaintiff to choose his court: Common Pleas for commoners’ dispute, King’s Bench because crown lands and crown rents were involved. Moreover, that Futter was also Coke’s tenant might allow private extra-legal action. If Futter disturbed other tenants’ possession and quiet enjoyment, if he were wrongfully cutting timber and allowing dilapidation of the improvements on the leasehold, perhaps the Queen’s Attorney would exercise a landlord’s peremptory rights. Clement did not mention his own past litigation against Futter; he cast himself only as the aggrieved party. Nor did he acknowledge that Futter had a very sound claim to Longham Priors (in fact, the Futters had apparently held the estate for decades). That Clement knew what to claim and what to omit suggests that he had first-rate legal counsel. The letter is in Clement’s hand, but one senses Coke’s guiding hand on the pen.26 25

C. W. James at 307–11. Significantly, when Coke bought Longham Priors himself, in 1610, he dealt with Futter—not with Clement’s heirs. Holkham Estate Catalogue, vol. 5, doc. 650 (28 Sept. 1610). In 26

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The dispute over Longham Priors petered out. Perhaps Futter sensed the forces gathering against him. Perhaps Coke rode over to Longham with his own bailiffs, presented Clement’s letter, and warned Futter what use he might make of it.27 Yet winning such victories brought only a troubled calm. Discord remained—between Heveningham and Coke’s friends in Norfolk, between the Earl of Essex and the Cecil family, Coke’s friends in London. The violence at Martham and Longham was only an early symptom. So far it had meant only brawls between farmhands; within a few years, it would mean bloodshed among gentlemen.

Standing for Parliament In the early 1590’s, the common law began to acquire the constitutional resonance which it resounded in the reigns of the early Stuarts.28 Francis Wyndham had observed that the queen’s courts routinely decided the validity of the queen’s patents. That phrase reflected the same understandings as an observation which Coke would later make, that the king had no prerogative beyond that which the common law allowed him.29 Wyndham had remarked that church courts could not swear witnesses to give evidence against themselves, pro salute anime. Coke would echo this directly in 1606, alongside Chief Justice Popham, from the King’s Bench, with his holding that the ex officio oath should not be administered to laymen, lest it tempt them to perjury.30 Whenever subjects resisted the deputy-lieutenants, Sir Arthur Heveningham complained, “they are bailed by some of the justices or dis_____ the archives at Holkham, Clement’s letter to Coke follows very closely on the conveyance of Longham Hall manor to Anne Bedingfield, the purchase which formally made Coke a party to his neighbors’ feud. Holkham Estate Catalogue, vol. 5, Docs. No. 547 (the conveyance) and No. 549 (Clement’s letter). 27 In 1601, Coke confronted a troublesome neighbor (Mr. Taverner of North Elmham) with a letter ruling in Coke’s favor on points which the two men had disputed. Coke wrote upon the back of the award: “If now you shall begin to contend with me (which never any man yet did) . . . then you shall give me leave to take such a course with you as by law I may do, and then you will repent yourself, and I will gain by it.” G. A. Carthew, “Original Letters of Sir Edward Coke and Edward Lord Cromwell,” Norfolk Archaeology 4: 267–70 (1855). 28 Smith at 256–57. 29 The Case of Proclamations, 12 Co. Rep. 74, 76 (1610). Sir Dudley Digges, one of Coke’s colleagues in the 1620’s, suggested that courts and the common law controlled the extent of royal prerogative, in language very close to that used by Wyndham thirty years before. Whenever kings spoke, Digges argued, “though by letters patent, if the thing be evil, those letters patent are void.” J. P. Sommerville, Politics and Ideology in England 1603–1640 at 101 (London: Longman 1986). 30 Of Oaths Before an Ecclesiastical Judge Ex Officio, 12 Co. Rep. 26 (1606).

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charged from us by a habeas corpus, and we [are] threatened to be sued upon false imprisonment.” Francis Wyndham declared “that whosoever gathered any money by virtue of any commission or letters from the Lords of [her] Majesty’s High Council,” “it was extortion.” Then Wyndham went even farther, persuading the justices to countermand the deputy-lieutenants’ orders. The constitutional lines only hardened with time. In March 1592, the deputy-lieutenants complained again: “The lawyers carry such a sway amongst us that we cannot nor dare not do anything but by good authority lest we hear of our doings to our great trouble. Beside that they have taught the common people to be so obstinate that they will ask counsel before they obey any authority, which [we] think is not used in no place in England but here in Norfolk.”31 When the queen issued writs to summon a parliament, later along in 1592, the highway patent was an issue—so too the dean and chapter lands dispute, the lord-lieutenants’ high-handedness, and the corruption and extortion surrounding the piers at Sheringham and Cromer. Heveningham sought election as knight of the shire, the most prestigious seat available, backed once more by Lord Hunsdon. Against him came forward two figures who had checked him before: Nathaniel Bacon and Edward Coke. The grave men on the magistrates’ bench seem to have quietly marshaled their strength. For a seat as knight of the shire, one organizer wrote to the constables of Wayland Hundred, “the greatest part of the justices do think her majesty’s solicitor Mr. Cooke . . . for his knowledge, wisdom and power to do us good, to be one of the meetest gentlemen.” Moreover, “though he only shall have occasion to advance all his wits to the requiting of so many good friends . . . yet all our country shall reap the benefit thereof.”32 Later, Coke recorded his election thus: that he had been chosen as first knight of the shire, with Nathaniel Bacon as second knight, at the castle in Norwich, on February 5, 1593, “per 7000 et ultra inhabitantes et residentes infra dictum comitatum, nullo contradicente.” He added: “Et ista electio fuit libera et spontanea nullo contradicente et sine ambitu, seu aliqua requisitione ex parte mea.” That first sentence may record fact; the second reaches for mythology. Heveningham was hardly the man to lose without a fight, and Coke was too careful a politician to trust in election by spontaneous unanimous acclamation. (He had, in fact, assured himself of a 31

Smith, County and Court at 263, 281 (emphasis supplied). Id. at 323.

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place in the Commons by arranging to be elected by a royal pocket borough in the West Country.)33 Never did Coke cover up a turbulent history with a more felicitous example of wishful thinking. Those comments look back to Livy, with his surreal, miraculous tableaux of Roman history. With their blithe denial of ambition, they also look ahead to Cromwell, and the Protector’s remark that he had risen high because he did not know where he was going. 33 Vade Mecum at 115; Hasler, House of Commons 1558–1603, “Edward Coke.” Possibly Coke was elected unanimously while Bacon and Heveningham battled for the second seat.

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chapter 7

Understanding, Authority, and Will: Coke’s “Artificial Reason”

Of all important jurisprudents, Coke may be the most infuriatingly conventional. Despite the drama which often attended his career—his crossexamination of Ralegh, his role in uncovering the Gunpowder Plot, his rivalries with Bancroft and Anderson and Bacon, and his explosive faceto-face confrontations with King James I—the surface of Coke’s work presents a studied calm. Coke explains rather than critiques. He describes and justifies existing legal rules, rather than working out how the law provides rules for making rules. He is a poet of judicial wisdom and legal craftsmanship rather than a prophet of change. He feels that what exists has lasted and is therefore to be trusted, and his work sounds in practice rather than in theory. The common law, Coke wrote, represented “an artificial perfection of reason.” The artifice was the skill of the practicing lawyer. The perfection was the mastery achieved by judges in their generations, “an infinite series of grave and learned men.” That legal reasoning is best which best reflects the consensus of the legal community. Law represents the understandings of the lawyers. To take such a perspective can be treacherous. To define law by the practices of lawyers comes perilously close to defining the ideal by a norm, to making conventionality the test of law. Within the conventional, however, there is a core of consensus which gives it mass and power. Coke’s definition of law as the lawyers’ “artificial reason” privileges agreement and shared understanding. To define law in this way

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means dealing not only with doctrines and statutes, but also with practices; how the law is put into action, how it operates within the legal profession and the broader society. The locus classicus of Coke’s definition of artificial reason is found in his Commentary upon Littleton. Here Coke wrote, Reason is the life of the law, nay the common law itself is nothing else but reason, which is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man’s natural reason, for Nemo nascitur artifex. This legal reason est summa ratio. And therefore if all the reason that is dispersed into so many several heads were united into one, yet could he not make such a law as the law of England is; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection, for the government of this realm, as the old rule may be justly verified of it: Neminem oportet esse sapientiorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason.1

The themes sounded in this passage are central to Coke’s jurisprudence. Artificial reason is not natural reason, simple native intelligence; it is a skill to be acquired only by an apprentice steeped in lawyers’ conventions. Mastery of the law is an art rather than a science. The law rests somewhat upon custom (that is, upon its evolution and acceptance over centuries) and somewhat upon reason (upon the perfection achieved by centuries of study). Critically, the law is valid because it reflects the judgment of “grave and learned men”—the procession of sages and savants, the heroes of Coke’s law-books. Coke so trusted the wisdom of the judges that he ranked it above the wisdom of the legislature, and sealed his faith with the witness of his career. The modern doctrine of judicial review traces its origins to the opinion Coke rendered in Bonham’s Case (1610).2 Much of the vitality of this doctrine relates to the circumstances in which it was reached. Acting as chief justice, Coke struck down a law he found insupportable, and held to his decision against forceful opposition. From this history emerged Marbury v. Madison3 and two central principles of constitutional law. The first of these is that the judges are the ultimate arbiters of what is constitutional. The second, perhaps a necessary corollary of the first, is that judges are independent of other branches of 1

Co. Litt. 97b. 8 Co. Rep. 107a. 3 1 Cranch 137 (1803). 2

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government. Coke formulated the principle of judicial review, and his defense of this proposition provided the paradigm of the independent judge. For Coke, law was a matter of judicial decisions, in all this phrase’s meanings. The notable aspect of artificial reason is Coke’s focus on the judge’s role in making the law. Another aspect is the emphasis which Coke placed on the case—a treatment of law-cases as the manifestations of abstract principles. Finally, there is the attention which Coke pays to the craft and procedure of judicial law-making, the trial process through which legal artifice is applied.

Coke on Custom and the Common Law In Coke’s day, discussions of the character of the common law tended to conflate different theories of law—reason, custom, and nature. Of these, custom was the most important. It was universally agreed that the common law was consuetudines angliae, the general customs of the realm, beliefs and practices so broadly shared by England’s people that they formed the pattern of national character. However, no sooner had this perspective been taken than the muddling began; the general consensus was that what was customary was reasonable and natural. Thomas Wilson, the most influential rhetorician of Elizabethan England, wrote that “that is right which long usage has confirmed, being grounded partly upon custom and partly upon the law of nature.”4 Sir John Fortescue had taken a positivist tack, arguing that statutes were law, whether morally right or not. However, Fortescue also insisted that English law reflected a morality based on divine law and linked legal reasoning to natural reason by describing legal maxims as “universals.” Christopher St. German had argued that the common law was based on reason, but fell back on custom to explain why certain specific legal rules were followed. Sir John Davies, Coke’s younger colleague, wrote that the common law was based on custom, but also that the “law is nothing but a rule of reason,” and that “the law of nature . . . is the root and touchstone of all good laws.”5 4

Thomas Wilson, The Art of Rhetoric at 74–75 (1553; State College, Pennsylvania; Pennsylvania State UP, ed. Peter E. Medine 1994). 5 Glenn Burgess, The Politics of the Ancient Constitution at 21–78 (State College, Pennsylvania: Pennsylvania State UP 1993); Harold Berman, “The Origins of Historical Jurisprudence: Coke, Selden, and Hale,” Yale Law Journal 103: 1651–1738, 1656–64 (1994). Fortescue’s views

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Coke also conflated theories of law. Most often, he voiced the conventional view that the common law was the custom of the realm. He translated consuetudo angliae as “common law” and remarked that if a practice were “current throughout the commonwealth,” it was part of the common law. “Customs are either general or particular,” he wrote, “general, which are part of the common law, being current throughout the whole commonwealth, and used in every town, and every manor.”6 However, his usage constantly shifted toward other definitions: The common law of England sometimes is called right, sometimes common right, and sometimes communis justitia. In the grand charter the common law is called right. . . . And all the commissions and charters for execution of justice are, facturi quod ad justitiam pertinet secundum legem et consuetudinem Angliae. So as in truth justice is the daughter of the law, for the law bringeth her forth. And in this sense being largely taken, as well as the statutes and customs of the realm, as that which is properly called the common law, is included within common right.7

In this one short passage, Coke shifts from something close to a natural law view (the common law as common right) to customary law (the common law as the custom of the realm, the laws and customs of England). Moreover, the entire discussion is lapped in positivism: Coke’s suggestions of what the common law might be derived from what the common law was called in charters and commissions.8 _____ were expressed in his De Laudibus Legum Anglorum (1470) (ed. & trans. S. B. Chrimes, Cambridge UP 1949). See further Norman Doe, “Pecock and Fortescue: Fifteenth Century Concepts of Law,” 10 History of Political Thought 257–80 (1989); St. German’s “Doctor and Student,” ed. T. F. T. Plucknett & J. L. Barton, Selden Soc. vol. 94 (1974); Sir John Davies, “Preface” to Les Reports des Cases & Matters in Ley, Resolves & Adjudges in les Courts del Roy en Ireland, discussed by J. G. A. Pocock in The Ancient Constitution and the Feudal Law at 32–35 (Cambridge UP 1957, rev. ed. 1987), and Hans S. Pawlisch, “Sir John Davies, the Ancient Constitution, and Civil Law,” 23 Historical Journal 689–702 (1980). 6 Coke, The Complete Copyholder 70 (1641). See also Co. Litt. 115b (“If it be the general custom of the realm it is part of the common law”), 2 Inst. 58 (“consuetudo Angliae” means common law), and Parker v. Herrold, 2 Leon. 114 (1586). Coke also suggested that a local custom might sometimes override the common law (that “a custom, used up on a certain reasonable cause, depriveth the common law”) Co. Litt. 112b. He further indicated, opaquely, that the judges’ interpretation of the common law should adopt a meaning derived from custom. “And as usage is a good interpreter of laws, so non usage . . . is a great intendment that the law will not hear it . . . Not that an act of parliament by non user can be antiquated or lose [its] force, but that it may be expounded or declared how the act is to be understood.” Co. Litt. 81b. 7 Co. Litt. 142a–142b. 8 Lord Ellesmere suggested that the law of England derived from charters and statutes. Louis A. Knafla, Law and Politics in Tudor England: The Tracts of Lord Chancellor Ellesmere at 165–66 (Cambridge Studies in Legal History 1976); T. F. T. Pluckett, “Ellesmere on Statutes,” Law Quarterly Review 60: 242–61 (1944).

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Coke constantly reached out to buttress the common law by linking it to the Judeo-Christian moral tradition, or to the law of nature. In cataloguing his library, he listed divinity books first, followed by “the books of the laws of England because they are derived from the laws of God.”9 He also wrote that the keeping of brothel-houses was forbidden by the law of God, “on which the common law of England in that case is grounded,” and cited five Old Testament sources.10 In the Star Chamber, he argued that divine right, rather than common law, governed the succession to the crown of England.11 In the same breath, Coke attempted to argue both that the common law was custom and that the common law had not changed since the days of the Druids (whereas the essence of custom is exactly that it may evolve to fit the needs of new generations). If Coke had rigorously considered the implications of what he asserted, it is doubtful that he would have insisted so hard that the law had never changed. As Glenn Burgess has observed, Coke tried, half-heartedly and with a notable lack of success, to pretend that statutes were declaratory of pre-existent law, or at best restored law to its pristine purity. Essentially he was saying that while in theory statutes could alter law and make new law, in practice (as experience and history tell us) they had not done so.12

Coke’s belief in custom was essentially skin-deep. His statements that the common law expresses custom do not cut down to the core of his way of thinking about law. He did not work out (as Davies did) a true theory of common law as customary law. When it actually came to relating custom to law, to explaining how custom and usage fitted into the harder terrain of legal judgments, Coke held back. He did not tie custom to the common law; he discussed individual customs as a matter of copyhold law, in terms of the localized practices of individual manors.13 Moreover, the only common denominator of custom was that reason de9

Holkham Catalogue at 22. 3 Inst. 205. 11 Conrad Russell, “Divine Rights in the Early Seventeenth Century,” in Public Duty and Private Conscience in Seventeenth Century England, ed. John Morrill, Paul Slack & Daniel Woolf (Oxford UP 1993) 100–120, 118. This turned around the common-law theory of allegiance which Coke developed in Calvin’s Case, 7 Co. Rep. 1a (1608). 12 Glenn Burgess, The Politics of the Ancient Constitution at 27. 13 See Co. Litt. 62a, where Coke discussed custom in terms of the “many and divers customs” recognized on a purely local basis in manorial courts, and noted that “in respect of the variety of customs in most manors, it is not possible to set down any [with] certainty” in the text. 10

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fined it. “Only this incident inseparable every custom must have, viz. that it be consonant to reason; for how long soever it hath continued, if it be against reason, it is of no force in law.”14 In the final analysis, reason and not custom defined law. Ultimately, Coke’s work in legal theory is half-hearted because his interest in legal practice is so strong. He was less interested in what the law might be than in what lawyers and judges do. His theory that the law is “artificial reason” focuses on the work of the judge. The common law may be reason, but it is the reason of the judges; it may reflect custom, but it is custom as settled by the judges His belief in the excellence of the common law is not a belief in the just prevalence and practicality of custom; it reflects a judge’s faith in the communal, professional wisdom of the bar—intelligence refined by training, by artifice.

Artifice in Rhetoric and Law When Coke defined law as the artificial reason of the judges, he borrowed for jurisprudence a concept rooted in the discipline of rhetoric. Coke’s artificial reason is closely related to the “artificial logic” which rhetoricians employed in analyzing and discussing issues.15 Abraham Fraunce’s remarks on artificial logic bear particular comparison with Coke’s remarks on law. In 1588, forty years before the Commentary Upon Littleton, Fraunce wrote: Logic is an art, to distinguish artificial logic from natural reason. Artificial Logic is gathered out of divers examples of natural reason, which is not any art of logic, but that ingraven gift and faculty of wit and reason shining in the particular discourses of several men, whereby they both invent, and orderly dispose . . . . This as it is to no man given in full perfection, so diverse have it in sundry measure. . . . And then is the logic of art more certain than that of nature, because of many particulars in nature, a general and infallible constitution of logic is put down in art.16

The most significant parallel between artificial logic and artificial reason—the most significant way in which the rhetoricians’ understanding of their discipline shaped Coke’s understanding of the lawyers’ profes14 Id. Coke carefully added that against reason did not mean “every unlearned man’s reason,” but rather “artificial and legal reason warranted by authority of law: Lex est summa ratio.” 15 See Allen D. Boyer, “Sir Edward Coke, Ciceronianus.” 16 Abraham Fraunce, The Lawiers Logike, exemplifying the praecepts of Logic by the practise of the common Lawe, sig. B.ii (1588).

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sion—lies in the idea that professional training and practice improve upon talent. The artifice applied by the rhetorician comes out of orderly invention and disposition, examination and discussion among thinkers schooled in the rhetorical arts.17 The artifice applied by the lawyer reflects the knowledge acquired by long study, the regular observance of practice in the courts. Moreover, both Coke and Fraunce share the belief that the truest understanding of an issue is that reached by disputation and discussion; the wisdom of the group will be fuller and more trustworthy than the opinion of any one lawyer or orator. Significantly, Coke was not the only common lawyer to call the law “artificial reason” or to describe it in terms patterned on rhetoric. Sir John Dodderidge wrote that law is called reason; not for that every man can comprehend the same; but it is artificial reason; the reason of such, as by their wisdom, learning, and long experience are skillful in the affairs of men, and know what is fit and convenient to be held and observed for the appeasing of controversies and debates among men, still having an eye and due regard of justice, and a consideration of the commonwealth wherein they live.18

This vision of law also borrowed from the rhetoricians its emphasis on professional rigor. Both lawyers and rhetoricians located the individual talent within a professional tradition, and insisted that the individual perspective was constrained and bounded by professional consensus. Rhetoricians claimed a special privilege for their discipline, that the highest eloquence could be achieved only by employing its technical forms. As Thomas Wilson declared, “Many speak wisely which never read logic, but to speak wisely with an argument, and to know the very foundations of things: that can none do, except they have some skill in this art.”19 They further claimed that the sophistication of their discipline made rhetorical discourse the only appropriate discourse for public life. George Puttenham’s comments are revealing: And though grave and wise councilors in their consultations do not use much superfluous eloquence, and also in their judicial hearings do much mislike all scholastical rhetorics: yet in such a case as it may be (and as this Parliament was) if the Lord Chancellor of England or Archbishop of Can17 Invention and disposition, mentioned here by Fraunce, were the two great subjects of rhetorical theory. The first covered the analysis of subjects, using place-logic; the second related to the discussion of topics, that is, the construction and presentation, and conclusion, of argument. W. S. Howell, Logic and Rhetoric in England 1500–1700 (Princeton UP 1956), and Ong, Ramus: Method and the Decline of Dialogue. 18 Sir John Dodderidge, The English Lawyer at 242 (1631; repr. Da Capo Press 1973). 19 Thomas Wilson, The Rule of Reason, Sig. O.2r–O.2v (1551; repr. Da Capo Press 1970).

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Privileging rhetoric cleared the way for Coke’s privileging of the judges’ reason. The master’s command of his discipline (in law as in rhetoric) provided an unanswerable claim to superior wisdom. Moreover, the rhetoricians’ equation of eloquence with rhetorical accomplishment could be given a corollary: that no trained rhetorician need accept an argument which did not employ the figures and conventions of rhetoric. To the extent that common lawyers carried over this perspective into law, it may have underlain resistance to changes and innovations which came from outside the common-law tradition. Closely related to such thinking is the conclusion that the individual legal talent cannot outweigh the wisdom and consensus of the profession—that no man can be wiser than the law, as Coke put it. This is the conclusion to which Coke’s discussion of artificial reason leads. It is also the viewpoint for which Coke risked his career, when he told James I, face to face, that his majesty, no matter what his natural gifts and intellect, nonetheless lacked the training to properly decide cases according to the laws of England.21 From this perspective, it may seem that Coke asserted the importance of artificial reason in a defensive context—that he extolled the merits of professionalism only when change threatened. And it is true that artificial reason has certain conservative dimensions. When it defines law as the collective opinion of lawyers and judges, it defines law according to the opinion of men with substantial stakes in the status quo. On the other hand, beginning in Coke’s day, artificial reason has had continuing liberal associations. In privileging consensus, it has opposed violent attempts to force change upon the commonwealth. Perhaps the first occasion on which Coke argued that one man’s will should not prevail against the settled wisdom of the law was the speech in which he prosecuted the Earl of Essex for treason. Moreover, there is a broader, positive, active aspect to artificial reason. Coke articulated this when he discussed how the law should be learned: “And true it is that Seneca saith . . . . ‘Quo plus recipit animus, hoc 20 George Puttenham, The Art of English Poesie at 139 (1589; ed. Gladys Doidge Wilcox & Alice Walker, Cambridge UP 1936). 21 Prohibitions del Roy, 12 Co. Rep. 63, 65 (1607); Roland G. Usher, “James I and Sir Edward Coke,” English Historical Review 18: 664–75 (1903).

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se magis laxat’: the mind, the more it suddenly receiveth, the more it looseth, and freeth itself.”22 Sir Francis Bacon stated that he preferred to write aphorisms about the law, rather than to discuss its principles in discursive detail, because the maxim format “doth allow the wit of man to toss and turn.”23 Bacon argued that the law would be better understood if students loosed their individual perspectives upon legal principles, rather than learning by rote what some oracle had taught them. Coke’s trust in the wisdom of the bar shares the same trust in open inquiry and discussion, the same belief that many intelligences following an inquiry together will uncover more of the truth.

The Virtue of the Judge At the same time that Coke privileges the collective wisdom of the bench and bar, he also privileges the character of the individual lawyer and judge. Coke’s theory of law as artificial reason, in fact, depends upon the conscience and intellect of the individual lawyer in the same way that theories of democracy or republican government rely upon the virtue of the individual citizen. Coke resisted any suggestion of taint or bias. “Never can a judge punish extortion, that is corrupted himself,” he wrote in 1604, and “therefore it is an incident inseparable to good government, that the magistrates to whom the execution of laws is committed be principal observers of the same themselves.”24 It was his favorite boast that he had never purchased any office of trust.25 22 Coke, Preface to the Sixth Part of the Reports. There is a tension here. In the preceding passage, Coke had warned students not to seek to learn the law too fast, for “a cursory and tumultuous reading doth ever make a confused method, a troubled utterance, and an incertain judgment.” Against this theme, however, one hears the idea of the mind “loosing and freeing itself,” just as the trial process would “open and enlarge,” i.e. set at liberty, the lawyers’ understanding. 23 Sir Francis Bacon, The Works of Francis Bacon at 7: 321 (New York: Hurd & Houghton, ed. James Spedding, R. L. Ellis & D. D. Heath 1863–64), discussed in Daniel Coquillette, Francis Bacon at 38 (Stanford UP 1992). 24 Preface to the Fourth Part of the Reports (1604). In the same vein, Coke also warned that those who bought legal office would also have to sell. 2 Inst. 234, 566; 3 Inst. 154. As Christopher Hill has noted, “The example given is Sir Arthur Ingram’s purchase of the office of Cofferer of the Household, so Coke stretched the conception of legal office far into the Civil Service.” Christopher Hill, Intellectual Origins of the English Revolution at 244 (Oxford UP 1969). 25 In his private papers, beside a list of the government positions he had held, Coke jotted down that all these had been acquired sine prece et sine pretio, without begging and without bribery. Historical Manuscripts Commission, Ninth Report, on the Manuscripts of the Earl of

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However, as Coke continued, following the law was only one of the ways in which the judge must “embrace discipline”; it was also necessary for the judge to face cheerfully “the many crosses and dangers of his calling.” With the tenor of his prose rising to sermon pitch, Coke warned of the judge’s duty to be even-handed: Et exultate, but yet cum tremore, do all these things lest ye enter into wrath, and so ye perish from the way of righteousness; whereby it appeareth, that the greatest loss a judge or magistrate can have, is to give himself over to passion, and his own corrupt will, and to lose the way of righteousness, et pereatis de via justa.26

In commenting on a line from Magna Carta, Coke tied together these disparate strands of theory: Justitiam vel rectum. We shall not sell, deny, or delay justice and right. Justitiam vel rectum, neither the end which is justice, nor the mean, whereby we may attain to the end, and that is the law. Rectum, right, is taken here for law, in the same sense that jus, often is so called. 1: Because it is the right line, whereby justice distributative is guided, and directed, and therefore all [judicial commissions] have this clause, facturi quod ad justitiam pertinet, secundum legem, and consuetudinem Angliae, that is, to do justice and right according to the rule of the law and custom of England. . . . 2. The law is called rectum, because it discovereth, that which is tort, crooked, or wrong, for as right signifieth law, so tort, crooked or wrong, signifieth injury, and injuria est contra jus, against right; recta linea est index sui, et obliqui, whereby the crooked cord of that, which is called indiscretion, appeareth to be unlawful, unless you take it, as it ought to be, discretio est discernere per legem, quid fit justum. 3. It is called right, because it is the best birthright the subject hath, for thereby his goods, lands, wife, children, his body, life, honor, and estimation are protected from injury, and wrong: major haereditas venit unicuiq; nostrum a jure, et legibus, quam a parentibus.27

Significantly, this passage weaves together the idea of artificial reason with moral right and natural justice, linking both to the integrity of the judge. The process by which the law discovers wrong is the trial process through which the lawyers’ artifice is applied. What appears to be the judge’s right to exercise discretion is really a duty to follow the common _____ Leicester at Holkham Hall at 374 (1884). In St. Mary’s Church at Tittleshall, Norfolk, Coke’s Latin epitaph makes a broad, bold assertion: Integritas ipsa, verae semper causae constantissimus assertor, nec favore, nec muneribus (the soul of honor, ever the steadfast champion of the cause of truth, not to be corrupted by bias or bribes). 26 Preface to the Fourth Part of the Reports (1604). 27 2 Inst. 56.

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law.28 Wherever reasoning fails to conform to the common law, it is an indiscretion, a word which in Coke’s day already connoted moral deficiency. Coke buttressed his arguments with both pragmatic and traditional grounds. He identified right and law with the protection of individuals’ lives, property and honor—then underlines this realistic viewpoint with a quotation from Cicero, flattering lawyers with the reminder that their everyday decisions partake of an ancient tradition and discipline. And by linking this discussion of right and law to this specific clause of Magna Carta, Coke reinforced his praise for the judge’s wisdom. To condemn the corrupt, those who would buy or sell justice, is another way of praising those wise and selfless adepts who uphold the law. Significantly, the integrity demanded of the judge is not a sanctimonious abstention from misconduct. The good judge’s integrity is active and energetic. For such a magistrate, Coke wrote, “three things are necessarily required, understanding, authority, and will.” He elaborated: Understanding concerneth things and persons; that is, first what is right, and just to be done, and what ill, and to be avoided; secondly, what persons for merit are to be rewarded, and what for offenses to be punished. . . . Authority to protect the good, and to chastise the ill. Will prompt and ready, duly, sincerely and truly to execute the law.29

Here, what seems a straightforward list of qualities is enriched by another lawyer’s pun. For the lawyers of Coke’s day (drilled in rhetoric for years, throughout grammar school and university) authority had numerous meanings. It could mean personal presence, the gravitas which Shakespeare’s Kent recognized in his sovereign King Lear. But authority could also be read in the Scriptural or legal sense, to mean citation to precedent or doctrine, a reference to an accepted text. By playing on words, Coke associated the judge’s personal bearing and political rank with the professional resources which the judge could marshal.30 To these definitions, Coke added a third, defining authority as 28 The judge’s authorization to follow his discretion could only be understood as an authorization to proceed according to the common law: secundum sanas discretiones had to be read secundum legem et consuetudinem Angliae. According to Littleton, discretio meant discernere per legem, “that is, to discern by the right line of law, and not by the crooked end of private opinion, which the vulgar call discretion.” Co. Litt. 227b. 29 Preface to the Fourth Part of the Reports. 30 The other side of Coke’s praise for the learning of judges and attorneys was a scathing contempt for unlearned men who meddled in the law. “To say the truth,” he wrote, “the greatest questions arise not upon any of the rules of the common law, but sometimes upon

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a matter of protecting the right and punishing the wrong. And this in turn connected the judge’s comprehension of the law with his resolve to pursue its demands and necessary implications.

The Judge as Artist and Artisan In one sense, Coke treats the judge as an artist, someone whose resolution of legal problems derives from individual talent, intuitive understanding, and professional skill. From another perspective, he regards the judge as something of a master artisan, possessed of a due regard for the practices of his guild and unfailingly able to select the right tool for the job at hand. Beyond this, he sees the judge as an effective, pragmatic administrator, well able to shape doctrine and decision to the needs of the commonwealth. The artistic model is a useful one for approximating Coke’s understanding of artificial reason. Coke’s vision of judicial law-making involves, unmistakably, a belief that the good judge will work within the established tradition of the law, appreciating the discipline’s conventions and respecting the work itself—which is another way of saying, from an aesthetic perspective. A contrasting view would be, say, Jeremy Bentham’s vision of law as engineering, a matter of surveying the shortest route to a conclusion and razing whatever stands in the way. The way in which artificial reason may differ from natural reason, in both operations and results, has been fluently described by Charles Gray. One property gained by intense training in English law (beside sharpening of common intellectual faculties and stored-up knowledge of rules, cases, research methods, etc.) is an “aesthetic” feel for the system that operates as a control on stock responses. An initiate possessed of this property will sometimes be disposed to resolve first-impression cases in a different way than an exemplary lay reasoner. . . . Here the ordinary modern use of “art” may be a guide: A lawyer is an “artist,” not only in the sense that he has a techne or skill . . . but also in the sense that long acquaintance with a certain type of artifact has given him a refined sense of “what fits,” of what response is correct on an unexpected occasion.31

_____ conveyances and instruments made by men unlearned; many times, upon wills intricately, absurdly, and repugnantly set down by parsons, scriveners, and other such imperites.” Preface to the Second Part of the Reports (1602). 31 Charles Gray, “Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke,” in Culture and Politics from Puritanism to the Enlightenment, ed. Perez Zagorin (Berkeley: Univ. of Calif. Press 1980), 25–66, 61.

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As Gray elaborates, artificial reason is a form of “legal imagination.” Treating the law as a coherent system, it examines “ways in which a rule or ruling on one point fits with the given state of the law in other respects. Its attunement is to harmonies, and distant ones count, as they do in an artistic composition.”32 Some explanations of legal rules (as Gray continues) are obvious. Some others can be discovered only by the trained talent. For example, if someone disseised from a feudal holding does not pursue that claim in a timely manner, because he or she was overseas, the traveler can nonetheless assert that claim upon returning to England. One reason for this (and the first one given by Coke) is that it would be impossible for the overseas traveler to make the requisite “continual claim.” If impossibility operates to excuse inaction in other areas of the law, it ought to held a valid excuse here. The legal artist, however, looks beyond this. A traveler in France might be able to keep informed of affairs in England, and thus be able to assert a timely claim. It might be fair to require timely claim where the facts show such knowledge. “But then the artist thinks of something more remote,” Gray comments. “It so happens that English law holds it impossible for juries to find events alleged to have taken place abroad . . . . If English law is blind to France in one respect, so— for the sake of artistic coherence—must it be in others.”33 In short, the artifice of artificial reason lies in its use of proofs which are complex as well as elegant. The legal imagination, the lawyers’ artificial reason, maps decisions into more than one plane of law, working from congruences that the lay intelligence would not consider. Such explanations are very good as far as they go, and they go a long way. Nonetheless, Coke’s view of law as artificial reason is both broader and deeper than a matter of juridical esthetics. It is, rather, a matter of technique and craftsmanship, of function rather than form. It is a matter of knowing one’s tools and knowing how to use them, of being able to argue a case on many different levels. “Mine argument is,” Coke wrote, that whensoever a man is enforced to yield a reason [for] his opinion or judgment, that he set down all authorities, precedents, reasons, arguments and inferences whatsoever . . for some will be persuaded or drawn by one, and some by another, according as the capacity or understanding of the reader is.34 32

Id. at 34. Id. at 64. 34 Preface to the Third Part of the Reports. 33

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For all educated Elizabethans, making logical arguments meant checking the places, running down checklists of ways to analyze a matter.35 And this is precisely the approach which Coke adopts. He notes that Littleton’s “proofs and arguments are drawn from twenty several fountains or places.”36 Here Coke spoke through Littleton: the twenty different sources of law he claimed to have identified in the Tenures summed up twenty different ways in which Coke was prepared to argue a case. First, from the maxims, principles, rules, intendment and reason of the common law, which indeed is the rule of the law, as here and in other places our author doth use. Second, from the books, records, and other authorities of law . . . Thirdly, from original writs in the Register, a rescriptis valet argumentum. Fourthly, from the form of good pleading. Fifthly, from the right entry of judgments. Sixthly, a praecedentibus approbatis et usu, from approved precedents and use.

And so on, through the opinion of sages of the law, to arguments ad absurdum, and finally to a lectionibus jurisprudentium, “from the readings of learned men of law.”37 For the lawyer, like the rhetorician, the idea is to offer copious argument, several reasons for one party to prevail, several purposes served by a single accepted principle—numerous proofs, as many as possible. Where artificial reason means checking the places, brainstorming with checklists, the technique of analysis becomes the mode of analysis. The workings of artificial reason are seldom as close to the workings of artificial logic as at this juncture. This preference for seriatim argument reveals itself throughout Coke’s work. Coke’s two most famous cases illustrate the point. In Bonham’s Case, Coke offered five grounds for holding that the College of Physicians could not imprison unlicensed practitioners. In Shelley’s Case, Coke seems to have gained the victory by erecting a bulwark of numerous arguments against the radical, ingenious propositions put forward by plaintiff ’s counsel.38 There are two great classes of legal thinkers, those who group together many different cases as illustrations of a single legal prin35 See Boyer, “Sir Edward Coke, Ciceronianus.” In The Art of Rhetoric, for example, Thomas Wilson had provided lists of places to be used arguing a defendant’s guilt. 36 Co. Litt. 11a–11b. 37 Id. 38 See Bonham’s Case, 8 Co. Rep. 107a (1610) and Shelley’s Case, 1 Co. Rep. 88b (1581).

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ciple, and those who group many different legal principles together to support a single case.39 So to speak, these different groups are respectively jurisprudence’s hedgehogs and foxes. Shelley’s Case first made Coke’s reputation, and deservedly so. Where Jeremy Bentham and C. C. Langdell are pre-eminent hedgehogs, Shelley’s Case marked Coke as one of the most notable foxes. To approach legal argumentation as the seriatim presentation of different arguments makes for a jurisprudence which is guided by function rather than aesthetic. The advocate whose arguments range from the obvious to the subtle may be orchestrating distant harmonies within the law. More than likely, however, he may also be hammering, from all accessible angles, on the problem at hand. If several arguments are bundled together, this may not be because they all represent different harmonics of the same chord; they may be massed together to cumulate their weight.

Jurisprudential Pragmatism and Coke’s Focus on the Case With this argument-by-argument approach to reasoning goes a case-bycase perspective on jurisprudence. Coke constantly emphasizes the individual case: the specific facts which are at issue, the legal arguments which may be based on those facts. “Generalities never bring anything to a conclusion,” he wrote in 1607, looking forward almost three centuries to Holmes’s statement that abstract propositions do not decide concrete cases.40 To be sure, Coke praises certainty in law. “Certainty is the mother of quietness and repose,” he wrote, and, on another occasion, “It is a miserable bondage and slavery when the law is wandering or uncertain.”41 In according this praise, however, he is not making a metaphysical claim that English law is perfect or sempiternally established. He rather re39 A categorization suggested by Archilochus (floruit 700–675 b.c.) and popularized by Sir Isaac Berlin, in The Hedgehog and the Fox (New York: Simon & Schuster 1953). 40 Preface to the Suxth Part of the Reports (1607); compare Lochner v. New York, 198 U.S. 45, 76 (dissent of Justice Oliver Wendell Holmes). Nor does Coke confuse symmetry with validity. In Mary Portington’s Case, 10 Co. Rep. 35b (1613), Coke led the judges in declaring that no condition or limitation (no matter what its form) was good if it sought to restrain alienation. In tracing degrees of consanguinity, Coke also declined to insist on symmetry. He was willing to allow a widower to marry the daughter of the sister of his first wife, while maintaining that a nephew could not marry his uncle’s widow (two relationships which mirror each other and involve identical degrees of kinship). Co. Litt. 235a. 41 Co. Litt. 212a; Sir Anthony Mildmay’s Case, 6 Co. Rep. 40a, 42a (1605) (“Quod misera est servitus, ubi jus est vagum”).

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iterates his call for avoiding “incertain judgment.” Where incertain means hasty or unreliable, as it does here, certain means sound or trustworthy.42 The certainty to which Coke aspires is not the specious certitude of the legal metaphysician. Rather, it looks toward the economist’s observation that the definition of rights is necessary for orderly commerce, because only what is clearly defined can be accurately valued or meaningfully exchanged. From the legal perspective, this ordering is reflected in the ability of attorneys and clients to predict the resolution of foreseeable disputes. Coke takes up this point with his observation that, “in all my time, I have not known two questions made of the right of descent of escheats, by the common law &c. so certain and sure thereof the rules be.”43 Indeed, he seems to have equated certainty in law with security of tenure. He wrote that by publishing his Reports he sought “the common good” of “quieting and establishing . . . the possessions of many.”44 Coke clearly considers the case as an epitome of law. To the right reason of the law, he continues, no man alone with all his true and utmost labor, nor all the actors in them themselves by themselves, out of a court of justice, nor in court without solemn argument (where (I am persuaded) Almighty God openeth and enlargeth the understanding of the desirous of justice and right) could ever have attained unto. For it is one amongst others of the great honors of the common laws, that cases of great difficulty are never adjudged or resolved in tenebris or sub silentio suppressis rationibus; but in open court, and there upon solemn and elaborate arguments.45

Here Coke treats the judicial decision as a process by which law is made. What mattered was the process of argumentation which lay behind the reports of the learned judges, rather than the ease with which the report could be understood. The case was to be trusted not because it could be easily understood, or because it framed the issues. It was to be trusted 42 In the same vein, Coke defined a legal maxim as “a sure foundation or ground of art and a conclusion of reason.” Co. Litt. 10b–11a. The trustworthiness of a principle measures its worth; it is not to be accepted merely because it fits well with other postulates. In calling for certainty, Coke also calls for a settling of the law—some sort of law reform. He expresses the same impulse which would lead Bacon to call for codification of England’s laws. Where Bacon failed to revise the laws, due to the lack of state support, Coke’s independent initiative would largely achieve this goal. 43 Preface to the Second Part of the Reports. 44 Preface to the First Part of the Reports (1600). 45 Preface to the Ninth Part of the Reports (1613).

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because the crystallization of the facts and elucidation of the principles had been established through the process of a trial.46 In the Commentary Upon Littleton, Cokes makes a bilingual pun which reveals much about his theory of courts and justice. In discussing the term regula, law-Latin for principle or rule of law, he comments: “Regularly judges ought to adjudge according to the common intendment of law.”47 In the same passage, he translates intendment as intellectus, “the understanding or intelligence of the law.” This suggests, in turn, that Coke connected the regulae of judicial decision-making with the regularly, orderly observance of judicial practice: the open hearing of cases, the development of facts, the argumentation which elucidated principles—and this, in turn, with the collective wisdom which the process focused. This connection reinforces his identification of artificial reason with the rightly decided case by emphasizing the process of decisionmaking. In his Treatise on Bail and Mainprize, Coke reworked the same idea of artificial reason. The elaborations he provided at this juncture illuminate the close connections he drew between the skill which the judge employs and the specific facts on which the judge focuses. It is a great contentment . . . and a good conscience, especially in cases that concern the life and liberty of a man, to follow the precedent of grave and learned men. . . . It is therefore very necessary, that the law and discretion should be concomitant, and that one to be an accident inseparable to the other, so as neither law without discretion, lest it should incline to rigor, nor discretion without law, lest confusion should follow, should be put in use: my meaning hereby, is not to allow of every man’s discretion . . . . but I mean that discretion that ariseth upon the right discerning, and due consideration of the true and necessary circumstances of the matter: and as commonly use to say, that common law is nothing else but common reason. . . .48

In conclusion, Coke drove home his point, that he allowed and required of judges the same discretion “that either grave and learned men have used before or rise of the circumstances of the case.”49 46 Later Coke again made the link between argumentation and understanding: “And well doth [Littleton] couple arguments and reasons together, Quia argumenta ignota et obscura ad lucem rationis proferunt et reddunt splendida: And therefore argumentari and ratiocinari, are many times taken for one.” Co. Litt. 395a. 47 Co. Litt. 78b. 48 Coke, A Little Treatise of Baile and Mainprize at 29–30 (1635) (repr. Da Capo Press 1973). 49 Id. at 31.

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As such passages show, Coke saw the determination of the individual case and the application of the legal principle as different functions linked by an equals sign. Or, to expand the equation: the common law equals common reason equals the right understanding of the individual case. For Coke, to follow a legal rule was not to adhere to a principle so much as it was to accede to the wisdom of judges who had previously considered similar cases.50 The law could be rightly followed and applied only where the true facts of the case were fully understood.51 Coke repeatedly emphasizes the circumstances upon which the judge acts, tying decisions to the facts. He equates the proper application of the law, of the legal rule, with the rightful, careful exercise of discretion by the judge—the judicious exercise of discretion, in every sense of the word. Behind this outlook lies the inexorable, energetic pragmatism of Tudor law, with its steely desire to measure judicial decisions by state policy. The lawyers of Coke’s day, deeply schooled in Ciceronian rhetoric, equated argumentation and adjudication with the government of a commonwealth. Tudor judges were active agents of the royal will, directing the implementation of royal policy and gathering information across their assize circuits. Given this grounding in politics and commerce, it is no accident that Coke’s jurisprudential touchstone was the soundness of individual decisions—individual resolutions of factual disputes—rather than the architectonic symmetry of legal principles. Ultimately, Coke argues that artificial reason is not abstract reasoning. So to speak, it is law in action. To follow artificial reason is to respond, to apply discretion, to the specific facts developed by the case. 50 Coke affirmed that the student of law would observe in English law, across the centuries, “the coherence and concordance of such infinite, several and divers cases (one, as it were with sweet consent and amity, proving and approving another).” Preface to the Third Part of the Reports. 51 This understanding of adjudication focuses closely on the cases, so closely that Coke felt it necessary to begin his discussion by emphasizing that he saw rules beyond cases. It was truly said, he admitted, “that Judicium est legibus & non exemplis: And as the logician saith, Exempla demonstrant, non probant.” Treatise of Bail and Mainprize at 29. By exemplum, Coke meant an example: an incident, a parable, an illustration—a case. The Latin maxims lend a veneer of idealism to a nominalist mind-set. Coke quotes them only so that he may emphasize the contrary viewpoint —essentially, that lines of precedent are determined by similar patterns of fact rather than as illustrations of a common principle. At other times, Coke clearly adopted this perspective. In Ognel v. Paston, a case from his practice days, he explicitly stated “And although the proverb, Exempla illustrant, non docent aut probant, may hold true in some arts and sciences, in our law, examples are good arguments.” 2 Leonard 84, 86. See Boyer, “Sir Edward Coke, Ciceronianus.”

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The Rule of Law and the Concrete Case It is in this light that one must approach the closely argued cases which appear throughout Coke’s jurisprudence. So precise are the details insisted on in these cases, that the decisions may give the impression that the courts and lawyers are drawing distinctions when no real differences exist. However, this pattern of argument is not often an instance of legal hair-splitting; rather, it reflects a consistent practice of reading closely the facts before the court. Under a given testator’s will, should the surviving sons be able to make leases and settle property? That depends on the facts. If the sons are bachelors, and knights, they should be able to make leases and settle property on their wives; gentlemen of such rank are not likely to till and manure their estates themselves, and unless they can make arrange good marriage settlements they will not be able to make good matches.52 When another testator, a yeoman, leaves one son property worth £4 per year, requiring that the son pay 40 shillings a year to each of his three brothers and one sister, the technical question of whether this is a condition or a limitation reflects the practical concern of whether the inheriting son can sell the property. And this issue can only be settled by analyzing all the facts—by recognizing that the total of £8 which the son must pay to his siblings in no way reflects a fair purchase price for the land in question. If the son is not paying the full value, it makes no sense, and the testator could not have intended, that he receive the full estate.53 What seem to be lawyerly debates over technical distinctions almost invariably mask disagreements which have significant practical consequences. If a parishioner agrees to pay £5 to his minister, this may be either a covenant to pay money or a grant of tithes for life—but much hangs on the distinction, because a grant of tithes requires a written agreement to be enforceable, and £5 may be half of the minister’s yearly income.54 There may be a critical difference between whether a mortgage is repaid when the creditor helps the debtor count out the money and put it in bags, or when the debtor subsequently hands the money to the 52

Read and Nashe’s Case, 1 Leonard 147 (1589). Wellock v. Hammond, 3 Co. Rep. 20b, Cro. Eliz. 204 (1590). 54 Woodward v. Bugg, 2 Leon. 29 (1588). On the uncertain financial situation of Elizabethan clergymen, see Christopher Hill, Economic Problems of the English Church from Archbishop Whitgift to the Long Parliament at 110–13 (1956). 53

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creditor in the porch of a specified church.55 A dyer’s vat fixed to the wall of a house may be a fixture, which sheriff ’s officers cannot seize for the payment of the dyer’s debts, while a vat which stands in the middle of the floor is chattel property on which the officers can rightfully levy.56 Toward the end of his career, Coke took great care in describing a series of actions which had almost, but not quite, amounted to a crime. G. Leake a clerk of the chancery joined two clean parchments fit for letters patent so close together with mouth glue, as they were taken for one, the uppermost being very thin, and did put one label through them both, then upon the uppermost he wrote a true patent, and got the great seal put to the label, so the label and the seal were annexed to both the parchments, the one written and the other blank: he cut off the glued skirts round about, and took off the uppermost parchment (which was written, and was a true and perfect patent) from the label which with the great seal still did hang to the parchment, then he wrote another patent on the blank parchment, and did publish it as a good patent. . . . And upon conference had between the judges, upon great advisement and consideration it was in the end . . . resolved by the judges (saving a very few) . . . that it was no counterfeiting of the great seal within [the] statute, that this offence was neither high treason, nor petit treason . . . and the party delinquent liveth at the present day.57

How much effort did it cost him to write that, his septuagenarian fingers scratching across the paper with a goose-quill pen? Yet Coke recorded it all, the details of the forgery and the great advisement and consideration which the judges gave. The sardonic note on which he closes, the observation that Leake was allowed to keep his head, underlines the discretion which the judges knew they were exercising. It warns that slightly different facts might have sent the decision a very different way.

Law, Lore, and Office Procedures Coke’s vision of law as the lawyer’s craft takes his jurisprudence into territory that is almost uniquely his own. His discussions of law constantly sweep into the concrete details of legal practice. They compre55

Winter v. Loveday, 2 Leon. 213 (1589). Day v. Austin, Owen 70 (1595); Co. Litt. 53a. All of the factual situations discussed in this paragraph—what proof is required to support a contract; the application of the perfect tender rule; and the vexatious question of when a chattel becomes a fixture—continue to recur in contemporary litigation. 57 3 Inst. 16; George Leake’s Case, 12 Co. Rep. 15 (1607). 56

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hend not only the law, but also the lore and the office procedure: the fundamental rules, the understandings which surround those rules, and the routines and formalities which must be negotiated. More than any other jurisprudent—with the notable exception of Karl Llewellyn—Coke approaches the lawyer’s work on all these levels. He advises his readers that poor and middling men may safely accept royal grants passed under the Exchequer seal, “but to you who are rich, my advice is to pass your leases under the Great Seal, for that is the sure way.”58 He provides specific recommendations on how to prepare a will: have the scrivener use only one parchment, carefully sign any interlineations or erasures, procure credible witnesses.59 He lists the ten parts of a deed.60 He carefully records the etiquette to be followed in beheading a traitor of noble birth.61 The lawyers’ artifice, it thus appears, is not just intelligence and sensitivity, a cultivated appreciation of the law and its arcana; it also comprehends technical accomplishment and mastery of detail. Coke called for part of the apprentice’s “long study” to be devoted to these aspects. It is requisite for every student to get precedents and approved forms not only of deeds . . . but of fines and other conveyances, and assurances, and specially of good and perfect pleadings, and of the right entries, and forms of judgments, which will stand him in great stead, both while he studies, and after when he shall give counsel.62

Good pleading was so critical, Coke warned, that it was “a necessary part of a good common lawyer to be a good prothonotary.”63 The end of artificial reason is not only to attain a true understanding of the law. It also means to follow the better practice, with all the everyday concerns which this entails. Indeed, Coke emphasizes that the sages of the law were to be consulted for points of conveyancing, no less than for guidance on thorny legal issues. “[I]t is not safe for any man (be he never so learned) to be of counsel with himself in his own case, but to take advice of other great and learned men. Non prosunt dominis quae 58

Lane’s Case, 2 Co. Rep. 16b, 17b (1596). Butler and Baker’s Case, 3 Co. Rep. 25a, 36a–36b (1591). 60 Co. Litt. 35b. 61 Judgment and Execution in Treason and Felony, 12 Co. Rep. 130. 62 Co. Litt. 230a. The close connection between lawyers’ learning and scriveners’ procedure was acknowledged early on. A Jacobean edition of William West’s Symboliographie was dedicated to Coke. Holkham Catalogue at 30. 63 Co. Litt. 303a. 59

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prosunt omnibus, artes. And the reason hereof is, in suo quisque negotio hebetior est, quam in alieno.”64 Because the concept of artificial reason is so closely tied to profession and craft, defining law as artificial reason privileges what a lawyer would call arcana and a non-lawyer would call technicalities. Coke’s view of law accords respect to the lawyer who picks apart the record and wins a case by finding a flaw in the pleadings.65 It smiles on legal sophistry, the ability to argue both sides of a case. As a practicing lawyer, at different times and in different cases, Coke argued both that small errors voided indictments and that small errors did not void indictments.66 Coke and his fellow-professionals distrusted change, but they applauded ingenuity, the masterful ringing of changes within the existing system. Coke himself was well able to twist pleadings to his client’s advantage, as a case from his practice days shows: Action of trover in London. The defendant pleaded, that long time before the conversion supposed to be, J.S. was possessed of these goods, as of his own goods, at B. in Norfolk; and that he before the conversion supposed did casually lose them, and they came to the hand of J. Palmer by trover, who gave them to the plaintiff, who lost them in London; and the defendant found them, and afterward did convert them to his own use, by the command of the same J.S. as it was lawful for him to do. It was moved that this was no plea, for it amounts to the general issue.—But all the justices held it a good plea: for it confesseth the possession and property in the plaintiff against all but the lawful owner.—Nota. This plea was devised by Coke to alter the trial.67

To devise a plea to alter the trial: however tricky and technical that sounds, to Coke and his fellow-professionals, that was part of the lawyer’s proper work.68 64

Co. Litt. 377b. Coke himself had done so on numerous occasions. See, e.g., Hasset v. Payne, Cro. Eliz. 256 (1591), and Gomersall and Gomersall’s Case, Godbolt 55 (1586). 66 Compare Anonymous, Godbolt 64 (1586), in which Coke argued that small errors should not void an indictment, with Martin van Henbeck’s Case, 2 Leon. 38 (1588), in which he argued that an indictment for false labeling of pipes of wine was insufficient because it failed to show the exact number of vessels improperly labeled, and Goslen’s Case, Cro. Eliz. 137 (1589), which saw an “indictment quashed for bad Latin,” following an argument by Coke. 67 Rockwood v. Feasar, Cro. Eliz. 262 (1591). 68 By contrast, Ellesmere suggested that such fictive pleadings be banned: “That actions upon the case, upon false surmises and fictions in law videlicet that corn, hay, tin, wood, and etc. which was growing in Cornwall or Yorkshire, and was lost and found in London or Middlesex and etc., be not hereafter suffered for trial of the estate, right, or title of lands lying in foreign counties. For this is a novelty and a trick newly devised, and hath no precedent or ex65

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Coke unhesitatingly accepted the use of fines and common recoveries as ways of transferring title to land.69 He was concerned that fines and recoveries be executed properly—not with whether there might be simpler ways of transferring title, or whether sham lawsuits might represent a cancer on the legal system. He noted how Chief Justice Dyer had “with great gravity and some sharpness” reproved an utter-barrister who spoke against common recoveries—quoting Dyer approvingly, to the effect that “he was not worthy to be of the profession of the law who durst speak against common recoveries, which were the sinews of assurances of inheritances, and founded upon great reason and authority.”70 “Fictions are but relations in law,” Coke wrote.71 This sentence speaks volumes. It shows that Coke equated a perspective that is explicitly counterfactual, which is established only by consensus (the legal fiction) with a perspective which derives easily from observable fact (the relation). Moreover, Coke was wholeheartedly willing to make use of fictions. The years in which he sat as Chief Justice of the King’s Bench were among those in which that court was using latitat to expand its jurisdiction.72 Just as Coke identified the legal idea with the idealized judicial opinion, so he conceived the law’s shortcomings in terms of badly decided cases. Behind his distrust of reform lay a refusal to believe that the system could be flawed. “I affirm it constantly,” he wrote, “that the law is not incertain in abstracto, but in concreto, and the incertainty of it is hominis vitium, and not professionis.”73 Judges might make wrong decisions, or lawyers might disagree, but these contretemps could not be considered to impair the law’s character as summa ratio. There is heartfelt self-congratulation in this perspective. What redeems this understanding of law, preserving it from self-absorption in ar_____ ample in the Register, or in the books of the law, and is contrary to the ancient institution, and true grounds of the law.” Knafla, Law and Politics in Jacobean England at 275. 69 See Dormer’s Case, 5 Co. Rep. 40a, 40b (1593) and Mary Portington’s Case, 10 Co. Rep. 35b, 43a, where Coke specifically equated the collusion and fictions of the common recovery with “the common conveyance and assurance of lands.” In Dormer’s Case, he virtually confessed that he saw no alternative to such sham proceedings, “et saepenumero necessitas vincit communem legem, & quod necessarium est licit’ est.” 5 Co. Rep at 40b 70 Mary Portington’s Case, 10 Co. Rep. 35b, 40a. 71 2 Inst. 590. 72 John Baker has noted that “from a trickle of latitats at the end of the fifteenth century, and a few hundred rolls a year, within a century the court was issuing—according to a contemporary estimate—20,000 latitats a year and filling 6,000 rolls. Between 1560 and 1640 the increase in King’s Bench suits was particularly dramatic, perhaps as much as tenfold.” Introduction to English Legal History at 51. 73 Preface to the Ninth Part of the Reports (1613).

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cana and lazy self-contentment with the existing order, is its hard core of reliance on duty and responsibility. Coke’s insistence that the good judge is eo ipso a good man is matched by his insistence that the lawyer maintain the responsibilities of his role. The heart of the law is good pleading, Coke maintained. This attitude reflects that lawyer’s concern with framing an issue so that a court can only address it squarely. It also reflects the judge’s concern that an issue be squarely framed so that it can be properly decided. The attorney’s concern with preparing the individual client’s case shaded into the judge’s concern with the exercise of his rightful powers.

From Artificial Reason to Judicial Review As early as Bracton, England’s judges had claimed that the common law was consonant with reason. What distinguishes Coke and his age is the energy with which judges used reason to assert their control over the law. Defining law as artificial reason gave tremendous authority to the judges. It allowed them to review customs, ordinances, and finally statutes. What they found reasonable, the judges approved; whatever failed to meet the test of reason, they struck down. What was demanded . . . if English law [were] to exist as a unified system was a technique of binding precedents. Somehow, someone had to find a principle that could be used to survey the vast array of judicial “examples” that had been accumulating since early medieval times and that would enable jurists to select those that could serve as broad precedents. Coke provided it. His definition of law as “perfect reason” became the standard against which the facts of law were measured.74

Coke’s own definition of reasonable shows how sharp a tool he had found in this concept. Again glossing Littleton, he wrote: “By reasonable time.” This reasonable time shall be adjudged by the discretion of the justices before whom the cause dependeth; and so it is of reasonable fines, customs, and services, upon the true state of the case depending before them: for reasonableness in the cases belongeth to the knowledge of the law, and therefore [it is] to be decided by the justices. Quam longum esse debet non definiture in jure, sed pendet ex discretione justitiariorum. And this being said of this, the like may be said of things incertain, which ought to be reasonable; for nothing that is contrary to reason, is consonant to law.75 74 John Underwood Lewis, “Sir Edward Coke: His Theory of “Artificial Reason” as a Context for Modern Basic Legal Theory,” Law Quarterly Review 84: 330–42, 336 (1968). 75 Co. Litt. at 56b.

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Here, even more than usual, Coke’s gloss amplifies what Littleton said. He extends the judges’ authority; any aspect of a matter, not just its timing, may be measured by its consonance with reason. Moreover, Coke ties reason to the judges’ learning and wisdom. Bracton might have referred to the judges’ familiarity with the custom at issue; Coke specifically treats the issue as “the knowledge of the law,” a matter of the judges’ learning. In Coke’s re-reading of Littleton, established doctrine is given a cutting edge. Whatever is uncertain ought to be decided by reason: which, in this context, is another way of saying that any unresolved issue may be decided by the judges.

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chapter 8

The Great Cases: Shelley, Chudleigh, and Slade

Defining law as artificial reason gave tremendous power to the judges. The judges’ learning and authority gave them the opportunity to revise and develop doctrine. As Samuel Thorne wrote, Sentences beginning “For it is an ancient maxim of the common law,” followed by one of Coke’s spurious Latin maxims, which he could manufacture to fit any occasion and provide with an air of authentic antiquity, are apt to introduce a new departure. Sentences such as “And by these differences and reasons you will better understand your books,” or “And so the doubts and diversities in the books well resolved,” likewise indicate new law.1

The Inns of Court were bulwarks of the common-law establishment. Readings by prominent benchers, discussions at Serjeants’ Inn, arguments in Exchequer Chamber proceedings—all reflected and reinforced the gerontocratic structure of the legal profession. Conversely, and not ironically, such institutions could also be forceful engines for bringing change. The readings reflected, as John Baker has noted, “the collective and governing wisdom of the profession.” The lecturers and their audience “were always testing, by disputation, the borders of that common understanding. It was part of their function to keep alive doubts and to 1 Samuel Thorne, “Sir Edward Coke 1552–1952,” in Essays in English Legal History at 223–38, 227 (London: Hambledon Press 1985) (originally published as the Selden Society Lecture for 1957). Thorne’s suggestion that Coke’s Latin maxims were spurious, can only be accepted if treated as partly facetious.

The Great Cases: Shelley, Chudleigh, and Slade

raise queries”2 The readers became serjeants and the serjeants became judges. Confident in their learning, the common lawyers of England would convince themselves that there was no question which the common law could not resolve—that is, there was no issue affecting the commonwealth which they themselves could not settle.3 The great cases of Coke’s era, brooded over for years by King’s Bench and Common Pleas, while long lines of counsel argued and reargued troublesome points, were referenda on statutes and doctrines. In Calvin’s Case (1608), the judges would handle a constitutional matter too sensitive for Parliament, whether James Stuart’s accession to the English throne gave his Scots subjects the legal rights of Englishmen.4 Nor were great issues the only ones addressed. Under the guise of settling “diversities” (that is, reconciling conflicting precedents or open questions; a way of proceeding which hid in plain sight the fact that new law was being made), the judges would define the time for performance of conditions, settle points of pleading, and decide when tendering back rent preserved a lessee’s rights. Coke himself would create a doctrine on the ownership of funerary monuments.5 “It is better, saith the law,” Coke wrote, “to suffer a mischief that is peculiar to one, than an inconvenience that may prejudice many.” It was better “that a private person should be punished or damnified by the rigor of the law, than a general rule of the law should be broken to the general trouble and prejudice of many.” In Latin and in Law French, inconvenient meant inconsistent. Coke continued: “Nihil quod inconveniens, est 2 John H. Baker, The Law’s Two Bodies: Some Evidential Problems in English Legal History at 74 (Oxford UP 2001). 3 See Alan Cromartie, “The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England,” Past & Present 163: 76–120, 81 (1999). 4 7 Co. Rep. 1a. See Conrad Russell, “Divine Rights in the Early Seventeenth Century”; Polly J. Price, “Natural Law and Birthright Citizenship in Calvin’s Case,” Yale Journal of Law and the Humanities 9: 73–146 (1997); and Keechang Kim, “Calvin’s Case and the Law of Alien Status,” Journal of Legal History 17: 155–71 (1996). 5 Bothy’s Case, 6 Co. Rep. 30b (1605); Crogate’s Case, 8 Co. Rep. 66b (1608); Ughtred’s Case, 7 Co.Rep. 9a (1590) and The Six Carpenters’ Case, 8 Co. Rep. 146a (1610); J. H. Baker, “Funeral Monuments and the Heir,” in The Common Law Tradition: Lawyers, Books and the Law at 347–64 (London: Hambledon Press 2000). In Lord Buckhurst’s Case (1598), the first case printed in the First Part of the Reports, Coke reported the satisfactory resolution of a troubling diversity. If A and B were jointly enfeoffed, with A being given the documents reflecting their title, and A then died, his joint-tenant B (rather than A’s heir) was to receive the deeds. Although Coke stated that he printed this case first because it had been decided in the Chancery, the point at issue was hardly earth-shaking. Possibly, Coke may have given this case such prominence because it was so characteristic.

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licitum. And the law, that is the perfection of reason, cannot suffer anything that is inconvenient.”6 The ideas of avoiding inconvenience and explicitly preferring the public interest appear throughout the cases which Coke reported.7 This suggests that there was something deliberate in the pressure which Coke applied to the law. He preferred decisions which avoided inconvenience—preferred decisions which swept broadly, which promoted overall consistency in the legal system, over decisions which carved out individual exceptions for single cases. Treating law as the perfection of reason pushed inexorably toward perfecting the law through the invocation of reason. Applying artificial reason meant polishing out inconsistencies; that was part of adaptive change.

Coke’s Mentors: Edmund Plowden and John Popham Even before Coke reached the bench, he had proven himself as a maker of law. He participated in most of the great cases he reported, beginning with Shelley’s Case in 1581. He made his mark through opinions he rendered as a counselor as well as by arguments he articulated as a barrister. This brought him into company with the serjeants-at-law and other periti, the eminent lawyers whose opinions and arguments counted. “And of worldly blessings I account it not the least, that in the beginning of my study of the laws of this realm, the courts of justice, both of equity and of law, were furnished with men of excellent judgment, gravity, and wisdom,” Coke wrote.8 Two of these sages would give a particular shape to his career. Older, much older than Coke, was the first of the two men who taught Coke most about the law. Edmund Plowden had been born in Shropshire in 1518, when Henry VIII was a defender of the faith. Plowden had remained conspicuously loyal to the Church of Rome. Though it kept him from being offered promotion to the bench, Plowden’s religion hardly limited his success at the bar. He successfully defended Bishop Bonner, most vindictive of Mary Tudor’s inquisitors, in a test-case prose6

Co. Litt. 97b; Coke, Treatise of Bail and Mainprize at 30; Co. Litt. 97b. The Case of Alton Woods, 1 Co. Rep. 40b, 53a (1600); The Countess of Rutland’s Case, 5 Co. Rep. 25b, 26a (1604); and Wyat Wyld’s Case, 8 Co. Rep. 78b, 79a (1609). See also Agnes Gore’s Case, 9 Co. Rep. 81a, 82a (1611), Henstead’s Case, 5 Co. Rep. 10a, 10b (1594), and Wade’s Case, 5 Co. Rep. 114a (1601). 8 Co. Litt., Proeme. 7

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cution for refusing the Oath of Supremacy. Plowden’s Protestant clients included Lord Burghley, the Earl of Leicester, the Dean of Westminster, and the queen herself. He settled disputes between bishops, arbitrated municipal disputes, cautiously rendered an opinion on the royal succession. He was trusted with state secrets, including where the will of Henry VIII was kept and what the Privy Council had concluded about the legitimacy of the royal signature. Modestly, Plowden described himself as an “apprentice of the Middle Temple”—in fact, he was the treasurer of the Middle Temple. Respectful legends began to follow Plowden. It was said that the queen had offered him the Great Seal if he would adhere to the Church of England, and that he had graciously but unhesitatingly declined.9 Coke knew Plowden well and was among those who revered him.10 Among the lawyers of his generation, Plowden was notable—first among equals—for his concern with defining the power which a judge might exercise over statutory law.11 He explored at length the “equity” of a statute, the flexibility which might be found in the terms of an Act of Parliament. The issue was not new. Roman jurisconsults and medieval lawyers had assumed that judges had the general power to construe vague clauses and deal with cases not squarely within the terms of a statute. Plowden, however, changed the terms of the debate. He placed new emphasis on the intent of the legislators who had passed a statute as a touchstone for determining the meaning of its terms. “Everything which is within the intent of the makers of the act, although it be not within the letter, is as strongly within the act as that which is within the letter and 9 See Parmitter, Edmund Plowden; Marie Axton, “The Influence of Edmund Plowden’s Succession Treatise,” Huntington Library Quarterly 37: 209–26 (1974); L. W. Abbott, Law Reporting in England 1485–1585 at 199–239 (London: Athlone Press 1972). It has been claimed, as Axton discusses, that Plowden prepared a discussion of the succession question at the request of the Duke of Norfolk ca. 1566. If so, perhaps Coke’s own contacts with the Howards originally put him in touch with Plowden. 10 He carefully preserved documents which the old man had passed along to him (sharing them with George Croke, his own younger associate). Abbott at 209–10. Among the cases in which Coke quoted Plowden are Roberts’ Case, Moore 176 (1582); Savell and Badcock’s Case, 3 Leon. 84 (1584); and Knightley and Spencer’s Case, 1 Leon. 331 (1591). Coke chose to end his Institutes by quoting “the aphorism of that great lawyer and sage of the law (which we have often heard him say), Blessed be the amending hand.” 4 Inst. 366. 11 The following discussion draws upon Samuel Thorne, A Discourse Upon the Statutes (Huntington Library 1942); Lorna Hutson, “Not the King’s Two Bodies: Reading the ‘Body Politic’ in Shakespeare’s Henry IV, Parts 1 and 2,” in Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn & Lorna Hutson (New Haven: Yale UP 2001), 166–98, 167–77; and Georg Behrens, “Equity in the Commentaries of Edmund Plowden,” Legal History 20: 25–50 (1999).

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intent also,” he urged. Plowden then took this approach an important step further. Statutes should be interpreted, he argued, “according to common reason, and common intendment, and according to the minds of the makers.”12 In the Year Books, lawyers and judges had approached statutory interpretation as a matter of determining the meaning of individual statutes. As late as the reign of Henry VIII, Christopher St. German had spoken of “equity” as “the exception secretly understood in every rule of positive law.”13 However, as more and more statutes were passed—as statutes covered broader areas and more important areas of the law—this nominalist approach appeared increasingly inadequate. Plowden was foremost among the lawyers who stepped beyond it. To speak of common reason and common intendment was to go beyond the clause-by-clause, case-by-case medieval approach; it was essentially to assert that all statutes might be interpreted by common principles. In one of his case reports, Plowden enumerated the various techniques by which statutory language might be narrowed or expanded, then exhorted his readers to use these more broadly, so that “when he conceives any doubt upon a statute, he will have these two equities ready in his mind.”14 Plowden’s arguments also had the potential to shift the balance of power between judges and legislators. When judges extended the reach of statutes, Plowden wrote, their expositions have always been founded upon the intentions of the legislature, which they have collected . . . . So that they have ever been guided by the intention of the legislatures, which they have always taken according to the necessity of the matter and according to that which is consonant to reason and good discretion.15

This claimed for the judges all of the debatable ground which had opened up between lawmakers in Parliament and lawmakers on the bench. That the intent of the makers of the statute was to govern its interpretation was inarguable; but Plowden effectively turned such questions over to the judges. Should the legislators have dispersed, he 12 Plowden was reporting approvingly arguments by Chief Baron Saunders and Judge Anthony Brown. See, respectively, Stowel v. Lord Zouch, 1 Plowd. 353, 366 (1562), and Reniger v. Fogossa, 1 Plowd. 1, 10 (1551) (argument by Saunders). 13 Christopher St. German, Doctor and Student at 97, (1530), ed. T. F. T. Plucknett & J. L. Barton (Selden Society, Vol. 71, 1974). 14 2 Plowd. at 468v (emphasis supplied). 15 1 Plowd. at 205v.

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opined, “then those who may approach nearest to their minds shall construe the words, and these are the sages of the law whose talents are exercised in the study of such matters.”16 Coke would have found such suggestions congenial. He would have found equally congenial a test which Plowden proposed. “In order to form a right judgment when the letter of a statute is restrained, and when enlarged by equity . . . suppose that the lawmaker is present . . . [and] give yourself such an answer as you imagine he would have done, if he had been present.”17 In Bonham’s Case, Coke would assert for judges the power to invalidate statutes. He may have been prepared for this because of the principles which he had found expressed by Plowden, whose Commentaries were described as “our old storehouse” of “actions that have been taken by the equity of statutes.”18 For a judge who routinely interpreted statutes— who had been taught that the sages of the law could rightfully construe statutes and that he himself could speak for the lawmakers—it was a final, logical step to claim the power to strike down statutes. John Popham was another bencher from whom Coke learned. Over the course of decades, Coke argued against Popham, argued beside Popham, argued before Popham, and worked with Popham as an officer of the crown.19 Popham was twenty years older than Coke. Like Plowden he was a West Country man (from Wellington in Somerset), like Plowden he belonged to the Middle Temple, like Plowden he was clever and resourceful in matters of law; and there the parallels ended. If Plowden was an intellectual lawyer, Popham was a forceful judge. He was flexible where Plowden was unbending, a pillar of the state and church from which Plowden maintained his distance. Rumors cling to Popham of a rough and ill-spent youth. It is said that he bullied travelers and took their purses.20 It is said that he loved a good 16 Id. at 82r. The approach allowed judges extremely ample latitude. As Thorne noted, courts might follow “the desire to reach results ‘beneficial a le common weal’ or to avoid ‘enconvenience & mischief ’—and under so broad a concept of legislative intention, similarly equivalent in all respects to that of justice, acts could be boldly extended, or (as will be shown later) narrowly restricted, without difficulty.” Thorne, A Discourse upon the Statutes at 62. 17 2 Plowd. at 467. The suggestion originally is from Aristotle; see Thorne, A Discourse Upon the Statutes at 141, Hutson, “Not the King’s Two Bodies” at 170–72. 18 Edmund Hake, Epieikia: A Dialogue on Equity in Three Parts at 108 (New Haven: Yale Law School Publications, D. E. C. Yale ed. 1953). 19 See Venable and Serjeant Harris’ Case, 2 Leon. 122 (1586); Rouse and Artois’s Case, 4 Co. Rep. 24, 2 Leon. 45, Cro. Eliz. 125 (1587); Penryn v. Corbet, Cro. Eliz. 464 (1596); Mountjoy’s Case, Moore 197 (1589). 20 Hasler, House of Commons 1558–1603, “John Popham”; Lord Campbell makes the bear-

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bear-baiting. (His grandson Alexander, cut from the same cloth, led regiments in battle across the West Country during the English Civil War, and left to his own heirs a well-worn suit of half-armor.) Popham’s genial countenance masked his shrewdness. He could seize any opportunity which offered, for his queen or for himself—he invested in reclaiming fenland, planting English settlers in Ireland, and colonizing New England. John Aubrey reported that Popham was given a manor for helping a knightly murderer escape the gallows. On sounder authority, it is reported that he left his family the largest fortune of any common lawyer in England. To serve as Solicitor-General, Popham gave up the rank of serjeant-atlaw. This was a downward tack, in the eyes of the bar, but it brought him the chance to earn the queen’s favor. He held office as Solicitor-General and then as Attorney-General from 1575 to 1589, seeing hard service. He served even longer as justice and chancellor to the Duchy of Lancaster— which means that he took a hand in dispensing royal patronage. Popham was “a most reverend judge,” Coke wrote, of a ready apprehension, profound judgment, most excellent understanding in the true reason of the law, and of universal and admirable experience and knowledge of all business which concerned the commonwealth; accompanied with a rare memory, with perpetual industry and labor for the maintenance of the tranquility and public good of the realm, and in all things behaving with great constancy, integrity and patience.21

Apprehension, experience, business, industry—Plowden was a powerful, political animal. There is something about him of the great party bosses: an ease in using naked power, a suggestion of gratified self-interest, the intermittent gleam of vision. Popham’s constancy, in particular, was a quality which Coke would observe.

Shelley’s Case and Its Rule If Norfolk gave Coke his start, he was not slow in building a wider reputation. Not long after Lord Cromwell’s Case was decided, he moved to _____ baiting remark. Alexander Popham’s armor is pictured in John Wroughton’s The Civil War in Bath and North Somerset (Bath: Victor Morgan Books 1973), and he figures prominently in this book and David Underdown’s Somerset in the Civil War and Interregnum (Newton Abbot: David & Charles Press 1973). 21 Sir Drew Drury’s Case, 6 Co. Rep. 73a, 75a (1607).

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the national scene with his work in Shelley’s Case (1581).22 Shelley’s Case was the first great case in which Coke would be involved. It was a cause célèbre, a highly politicized controversy—and, within the tight professional circle of the bar, a lawsuit which threatened to turn established rules inside-out. It was the decision which first made Coke’s reputation as a lawyer, and, because of the resulting “Rule in Shelley’s Case,” a holding which Coke abstracted and promulgated, it helped establish his reputation as a case-reporter. Shelley’s Case involved the interpretation of a basic conveyancing term, the grant to A and his heirs. In past centuries, under feudalism, the law had understood a grant to A and to A’s heirs as the transfer to A of a freehold estate. A would hold the property for life, in fee simple, and then his heirs would have it. The heirs received nothing immediately; they were considered to receive the property ultimately by descent from their ancestor A. The words and his heirs were words “of limitation.” In Shelley’s Case, family patriarch Edward Shelley had intended just such an arrangement. He had transferred land to himself for life, then to his male heirs—the first of whom, apparently, was the child being carried by the widow of his first-born son Henry. The child was born, in turn was christened Henry, and grew up to claim the farms in question. However, he faced a rival claimant: his uncle Richard Shelley, Edward’s second son. Taking advantage of the case’s peculiar facts, Richard’s lawyers pried open new levels of meaning in the language of the grant. Specifically, Edward Shelley’s transfer had limited an estate “to the use of A [himself] for life, remainder after 24 years to the heirs male of the body of A in tail male.” Richard argued that the phrase and his heirs was actually a term “of purchase,” describing who took an immediate interest—and that he, Richard, was the only heir to whom this language could apply, because it was not known at the time of Edward’s transfer whether Henry Shelley’s unborn child would be male or female. Accordingly, Richard argued, he and not young Henry took the property. If Richard claimed the property as an heir, by descent, he would lose the property at issue because Henry, a closer heir, had subsequently been born; but if Richard were considered 22

1 Co. Rep. 88b, 1 Anderson 69, Moore 136, 3 Dyer 373b (1581). The case is penetratingly reconstructed by A. W. B. Simpson in his Leading Cases in the Common Law (Oxford UP 1995), upon which this discussion relies. See also A. D. Hargreaves, “Shelley’s Ghost,” Law Quarterly Review 54: 70–77 (1938) and R. E. Megarry & H. W. R. Wade, The Laws of Real Property at 61–63 (London: Stevens & Sons, 3d ed. 1966).

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a purchaser, he would have immediately received an interest, under Edward’s original transfer, which could not be taken away by later events. The case was charged with broader issues. Henry Shelley was a loyal communicant of the Church of England. Richard Shelley, by contrast, was a Roman Catholic, turbulently so, the kind of recusant who periodically got himself jailed. In 1580, even as the lawsuit wound its way through the courts, the Shelley mansion at Michelgrove in Sussex sheltered Father Robert Parsons, most audacious of English Jesuits. Religion aside, there was a troublesome issue of property law. Edward Shelley’s conveyance to his unborn heir involved an executory interest. The sideeffects of the Statute of Uses made it possible, at least theoretically, to use such devices to lock up family holdings in perpetuity.23 The judges’ decision on whether the uncle or the grandson should take the property could affect the course of future conveyancing, of landowners’ ability to control the disposition of their estates. Richard Shelley might be a Roman Catholic, but—perhaps because of the perpetuities issue—he could call on the cream of the English bar. His lawyers were three serjeants-at-law, Francis Gawdy, Edward Fenner, and Edmund Anderson. Gawdy was the establishment lawyer, present to put an acceptable face on a recusant’s case; Fenner was apparently the brains of the operation, in his finest hour; and Anderson was the monster: an angry man in the courtroom and a resentful man afterward, an advocate who begrudged other lawyers’ victories. Henry Shelley was represented by his own trio of lawyers. One was Richard Cowper, a family barrister. With Cowper, officially for Henry Shelley but implicitly for the government, appeared Solicitor-General John Popham and Edward Coke, partners in an energetic, brilliant defense action.24 For three long days, the teams of lawyers argued before the Court of King’s Bench. Then matters moved higher; “such was the rareness and difficulty of the case,” Coke wrote, that the queen herself intervened. “To 23

Baker, Introduction to English Legal History at 321–27. Norfolk connections may have helped Coke here. Sir Thomas Gresham and Lord Keeper Bacon had been brothers-in-law, married to two daughters of the Fernley family; the third Fernley sister’s husband was Lord Treasurer William Cecil. Bacon would likely have known Robert Bozoun’s promising stepson; Gresham had owned land in Mileham while Coke was growing up there. “Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 49: 89, 100, 106. Both Bacon and Shelley lived until 1579, the year in which Shelley’s Case began to be litigated. What Coke later wrote to Robert Cecil, that all his advancement had come from the Cecil family’s favor, suggests that Burghley tapped Coke to work with Popham. Perhaps Gresham or the Lord Keeper brought forward the young lawyer’s name. 24

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prevent long, tedious and chargeable suits between parties so near in blood,” Elizabeth directed that all the judges be summoned.25 The case was argued again, with the Lord Chancellor brought in to preside. The judges later reviewed the arguments, among themselves, and finally, months later, issued a judgment. It was in favor of Henry Shelley, the settlor’s grandson, Coke’s client. To counter the ingenious arguments of plaintiff ’s counsel, Coke had produced nearly half a dozen arguments to support the proposition that Richard Shelley could take only by descent. He prevailed; some of these reasons, or all of them together, proved persuasive. He convinced the judges that the executory interest which arose under the use created by settlor Edward Shelley should be judged by the existing legal rules on remainders.26 Coke celebrated the victory by publishing his arguments. The case report went out in manuscript, in English to ensure a wide readership, and under a dedication to Lord Buckhurst (a member of the Privy Council, and at that moment the most prominent nobleman in East Anglia). Coke’s case report focused on the arguments he had made and the arguments he had refuted, implying both that his work had been crucial and that the court had accepted what he said. To read Coke’s report of Shelley’s Case as a report of what the court actually held is treacherous, because the ultimate ratio decidendi remains unclear. The court seems generally to have affirmed existing law, which was what Coke sought, without sorting out any specific reason. Serjeant Anderson later carped that things were said in Coke’s report which had never been uttered in the courtroom.27 The black-letter dictum known as The Rule in Shelley’s Case, and memorized by twenty generations of lawyers—that a grant to A for life, then to the heirs of A, gives A an immediate freehold—appears in Coke’s report, but in no other account of what the judges held. The Rule owes its authority to Coke, not to the decision. 25

1 Co. Rep. 105b. From this perspective, Shelley’s Case ranks as Coke’s first attempt to apply the rules on legal interests in land to interests created by use, a theme on which he would expand in Chudleigh’s Case, 1 Co. Rep. 113b (1595), and to prevent the establishment of perpetuities, a theme on which he would hammer in Mary Portington’s Case, 10 Co. Rep. 35b (1613). See also 6 Co. Rep. 34a (Coke argues that uses should be judged by common-law rules). 27 See Shelley’s Case, 1 Anderson 71: “Le Atturney Master Cooke, ad ore fait report en print de cest case ove Arguments et les Agreements del Chanceler et auters Judges mes rien de eo fuit parle in le Court ne la monstre.” 26

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The Legacy of Shelley’s Case Shelley’s Case earned its long-lived reputation because of its contemporary significance. The decades of Elizabeth’s reign were the years in which lawyers were beginning to define the law of family settlements, a process suggestively dissected by Eileen Spring.28 As part of the Statute of Uses, Henry VIII had granted a boon to young men contemplating marriage (or, more likely, to family patriarchs arranging the marriages of their eldest sons). A clause of the Statute enabled the groom’s family to replace the bride’s dower rights in her husband’s property (which had been a lifetime claim to a third of her late husband’s land) with property covered by a jointure settlement (which very soon gave the widow much less, perhaps generally an annual 10% return on the property she had brought to the church door as her marriage portion). This made it possible for landed families to adopt complex marriage settlements, legal agreements which could tie up a family’s property for the married couple’s lifetime, then transfer the property to their heirs. To ensure that marriage settlements were legally enforceable, two things were necessary. Settlors needed a reliable way to specify to whom family property would descend if an eldest son had no male children. To draft a settlement successfully, they needed assurance that courts would enforce a contingent remainder, in particular a remainder to a person not yet born at the date of the conveyance: a conveyance to my eldest son A and his heirs male, remainder to my second son B and his heirs. Contingent remainders had been approved by English courts since 1551, following Colthirst v. Bejushin—but this solved only half the settlor’s problem. The second necessity was a reliable conveyancing formula for distributing property presently to sons and preserving it for future grandsons, while avoiding the possibility that these different interests would accidentally collapse into a single freehold. A doctrine of merger had to be defined. It was here that the ruling in Shelley’s Case was critical. The judges had made it clear that a multi-generation estate plan could not be drafted using the formula to A for life, then to the heirs of A. To do so would cause a merger of the interests meant for different generations, A’s life estate and his heirs’ remainder. Yet in the same case-report, Coke mapped out 28

See Eileen Spring, Law, Land and Family: Aristocratic Inheritance in England 1300–1800 (Chapel Hill: University of North Carolina Press 1993), upon which the following discussion draws; Barbara English & John Saville, Strict Settlement: A Guide for Historians (Hull: University of Hull Press 1983).

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for conveyancers a path around this obstacle—a way to manage this risk. They should “limit the remainder in the singular,” he urged: make the conveyance to A for life, then to the heir of A. This hint was quickly taken by conveyancers and approved by judges.29 One class of legatees—one category of descendants—bore most of the costs imposed by this rule of law. Enforcing grants to heirs male was part of a social and jurisprudential shift to minimize the rights of heirs who were not male. The heiress-at-law, as Eileen Spring has noted, saw her status erode as the strict settlement advanced. At common law, the estates of a landowner who had no sons had passed to his daughters, not to his collateral male kinsmen. Substituting jointure for dower and tying up land in family settlements went far toward changing that, contract trumping status. “What landowners were busy engineering in their settlements was the lowering of the provision for female issue when male was lacking,” Spring has summed up. “Although it has never been put this way, it needs to be: Grants to unborn persons were really grants away from certain unborn persons.”30 It came to be considered a social misfortune, the end of a family, when a landowner had only daughters. Fewer and fewer heiresses inherited; the heiress-at-law lost most of her legal identity, and came to be hidden within the androgynous category of heir-general. In winning the case, Coke achieved a result consonant with precedent. The assembled judges of England held that the language did not make Richard Shelley a purchaser. But while preserving the results which the medieval common law would have reached, Shelley’s Case marked the ascendancy of a radically different mode of reasoning. As John Baker has written, what in medieval times had been a feudal rule was now turned into a rule of construction . . . . No full reasons seem to have been given; but it is significant that the judges rejected the defendant’s argument that it was simply a matter of giving effect to the settlor’s intention.31

Under the feudal regime, the language of the law had been the common tongue of the legal, social, and political realms. The words creating a 29 In 1595, Archer’s Case upheld a limitation “to the right and next mail heir,” and in 1615 Lewis Bowles’s Case allowed a remainder to “the first issue male.” Spring at 135–37. 30 Spring at 25, 138. Recent work by Professor Robert Palmer on medieval litigation suggests that, in fact, there may never have been a golden age for dower; dower claims were among the claims most often contested. 31 Baker, Introduction to English Legal History at 324.

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freehold transfer had a single meaning in all these different areas. With the era of Shelley’s Case, law became the language of the lawyers. To define law in terms of the lawyers’ artificial reason gave a particular privilege to the legal caste. It invested the terms of legal documents with the meanings used by lawyers, irrespective of other meanings which such words conveyed. This was one of the most significant achievements of Coke’s era, and one of its most troubling. For the next four centuries, whenever the terms of a legal document required definition, English courts would apply the private, technical meaning current among the bar. When construing contracts, courts arrogated to themselves the construction of disputed terms, refusing to hear what the parties themselves had meant. The street argot of Chancery Lane increasingly diverged from the language of the testators whose wills were construed there. According to the judges, the term descendants or relations did not cover illegitimate children, and when family members drowned in the same maritime disaster, courts refused to say that their deaths coincided.32 If the law remained artificial reason, reason had petrified within the artifice. Not until the 1950’s, prodded by Lord Denning, would the English bench once again begin to read documents in terms of the parties’ original intent. The legal regime which Coke had helped install during the reign of Elizabeth I would endure until the reign of Elizabeth II.33

Chudleigh’s Case: Literalism and Realism Coke seems to have seen himself as a bluff, honest speaker, someone who offered plain meaning, unmediated. However falsely modest such assertions seem, he repeated the claim so often, and it fits so well with his courtroom manner, that it may represent an honest personal admission of his limits as an advocate. He spoke sharply, Coke told the House 32 Lord Denning, The Discipline of Law at 23–53 (1979). The two egregious cases cited are, respectively, Sydall v. Castings Ltd., [1967] 1 Q.B. 302, and Re Rowland, [1963] Ch. 1. 33 Whether Coke himself would have persisted in such readings of legal language remains doubtful. His practice had often involved construing the terms of documents drafted to the satisfaction of people who should have known better. See, e.g., Higham v. Horwood, Moore 221 (1585), in which the will of a prosperous but illiterate yeoman failed to define appurtenances sufficiently. In Blamford v. Blamford, 3 Bulstrode 98 (1611), the lawyers’ debate over the terms of a will provoked a growl from the Chief Justice: “Lay-men do not know what a survivor means.” 3 Bulstrode 101.

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of Commons in 1593, “for it is my fault, I cannot speak as mildly as some.”34 He wrote that he presented cases “in the lawyer’s dialect, plainly delivered,” for truth could only be defended by herself.35 He sought to avoid obscurity, ambiguity, jeopardy, novelty, and prolixity.36 In his student days at Cambridge, perhaps, Coke may have studied William of Ockham. Part of his bluff, blunt approach to law was a willingness to rely on bright-line rules—to take the most literal and least flexible interpretation. Of all possible readings of a statute, the simplest was to be preferred. The narrowness of this method contrasted sharply with the analytical and critical perspectives fostered by Sir Francis Bacon. In Chudleigh’s Case (1594), Coke and Bacon were retained by the same client, but their arguments had little in common. At issue in Chudleigh’s Case was whether the common-law rules on property transfers applied to transfers made by use.37 In 1557, fearing that his eldest son Christopher might be indicted and convicted of felony, and thereupon lose any property he held, Sir Richard Chudleigh of Devon sought to evade the forfeiture of his family lands through a shamelessly complex layering of contingent transfers. Sir Richard conveyed his property to various feoffees, to the use of himself and certain of his heirs— specifically, the heirs he might beget by marrying a series of six women, all of whom were already married to other men—then for ten years as he might appoint by his will—then to his feoffees’ use during Christopher’s life—then to the use of Christopher’s male heirs. Sir Richard died in 1558, without having had issue by any of the women named, exactly as he and his lawyers had foreseen. Meantime, Christopher had avoided indictment, conviction, and forfeiture, and in 1559 the feoffees transferred the Chudleigh estates to him. Had the contingent interests created by Sir Richard been traditional remainders, created by transfers at law, they would have been cut off by the feoffees’ conveyance to Christopher, because they had never vested. No children by Sir Richards’ prospective spouses had been born before the feoffees’ transfer to Christopher. However, because these contingen34 Cotton MS Titus F.II, folio 86b, quoted in Sir John Neale, The Elizabethan House of Commons at 362 (Penguin rev. ed. 1963). 35 Preface to the Ninth Part of the Reports (1613); Preface to the Fifth Part of the Reports (1605). 36 Preface to the Seventh Part of the Reports (1608). 37 On Chudleigh’s Case, also reported as Dillon v. Freine, see 1 Co. Rep. 113b, Popham 70, 1 Anderson 309, and J. H. Baker & S. F. C. Milsom, Sources of English Legal History: Private Law to 1750 at 150–57 (London: Butterworths 1986).

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cies were interests created by transfers “to use”—and hence not remainders, but rather executory interests—the question arose whether the conveyance completely cut them off. The Statute of Uses had decreed that all estates created by uses were “executed,” deemed estates at law. This general rule, however, left open crucial questions: whether future interests created by transfers “to use” were executed; and whether such executory interests, if executed, became subject to the legal rules governing remainders. Arguably, the Statute of Uses and the Statute of Wills, read together, allowed settlors to create executory interests, executed and valid in law, with the same latitude which had characterized the use. “If the statutes of Henry VIII had really been intended to render the legal rules obsolete,” John Baker has written, “conveyancers could achieve whatever they wished by adding the magic words ‘to the use of ’ in their settlements. Seisin could be made to skip and jump as never it could before, or even put into cold storage to await future contingencies.”38 In Chudleigh, the judges were offered an opportunity to help restore order to the law of family settlements. Bacon approached these questions with a philosopher’s subtlety. He spoke of dispelling predispositions, addressed the ambiguity of the statute’s text and the limits of the case-law, and urged that the judges weigh the policy behind the law. He ended by arguing that contingent executory interests should be held executed only where policy compelled such a choice. Coke, by contrast, asserted flatly that the statute executed all uses, equally and unequivocally, and automatically subjected them to the common-law rules on legal transfers. To preserve uses in any form, he argued, would be “against the express intent of the makers of the Act . . . for they intended sub modo to extirpate and extinguish them.” If an interest in land was barred at law, or destroyed under the rules governing contingent remainders, its counterpart created by use was equally barred or destroyed; no executory interest created by use could ever be greater than a strictly legal interest, or be available where a strictly legal interest could not be created; estate planners could not achieve more by transfers “to use” than they could attain by transfers made at law.39 Between them, Coke and Bacon prevailed. The assembled judges 38

Baker, Introduction to English Legal History at 324. Daniel R. Coquillette, Francis Bacon at 134, 131–35 (Stanford UP 1992).

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voted 9–2 in favor of their client. It appeared that the judges accepted Coke’s hard-line argument, holding that common-law rules would prevent perpetuities being created via transfers “to use.” It is likely that the judges found Coke more persuasive than Bacon. Bacon had refused to offer a simple analysis. As a matter of philosophy and jurisprudence, he had good intellectual grounds to do so, but such intellectual earnestness blunted the edge of his argument. What Bacon asked of the bench was elusive and demanding. He refused to offer the judges a ready-made calculus, a mechanism which would give a swift, defensible answer in the case at bar while promising to work well in processing future similar cases. He challenged the judges to assume responsibility for shaping the law, rather than offering them the assurance that the merits of uses had already been determined by Parliament. Coke’s argument, by contrast, offered the court a clear-cut ratio decidendi. He answered the question of how acceptable uses could be distinguished from illegitimate ones by asserting that no such problem existed; no uses whatsoever could be upheld. Coke was not blind to the policy considerations which Bacon addressed, but he dealt with them by asserting that this this issue, too, had already been dealt with; such abuses had led Parliament to outlaw uses altogether. From this vantage-point, he could denounce improper uses while assuring the judges that the realm’s highest authority had already weighed such factors—that he was asking them merely to follow what was already law, rather than to weigh policy and make decisions on each new case. Simple and solid, this argument could be counted on to penetrate. It offered a way to avoid a case-by-case approach to a recurring issue. It admitted no doubts; it could be presented emphatically and without qualification. Bacon, by contrast, hamstrung his own argument by a presentation which was loose and introspective—the opposite of emphatic. And what Coke’s argument grasped most strongly was the case’s most critical issue. Whatever else Henry VIII had intended or done, he had meant the Statute of Uses to “put a stop to the fiction that the man in enjoyment of the land was not its legal owner.”40 In isolation, the holding in Chudleigh seems to foreshadow later chapters of Coke’s career, in which he asserted the superiority of the common law and attacked conveyances which threatened to create perpe40

Spring at 31.

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tuities. However, as with all categorical assertions, the certainty which Coke’s argument appeared to offer was illusory. The rule laid down in Chudleigh would be twisted inside-out; judges would isolate and minimize its application. They would rule that all limitations “to use” which were initially valid at common law would be governed by common-law rules (thus scrupulously preserving the narrowest reading of the decision in Chudleigh) but that all limitations “to use” which initially violated common-law restrictions were nonetheless valid, and could not be bound by common-law rules—thus allowing wholesale circumvention of the rule for which Coke had argued.41 And yet Coke’s argument served the purpose for which it was fashioned. The issues in Chudleigh included more than the proper way to read a statute; the case involved a thick substratum of tax law. J. L. Barton has framed the issue clearly: If it were possible to limit an infinite series of contingent estates, this would not prevent the land from being disposed out of the family. It would, on the other hand, ensure that so long as the land was not disposed of in fact, it would never descend from ancestor to heir, and thus that no feudal incidents would be due after the first generation . . . . The rule that a remainder to the issue of a person unborn cannot be limited after a remainder to his parent acquired in a later age the name of “the rule against perpetuities.” Its original purpose was not to protect the public against perpetuities . . . but to guarantee the queen her feudal incidents at least in every alternate generation.42

In Tudor days, feudal incidents were an extremely value source of royal revenue. By 1671, when Purefoy v. Rogers was decided, feudal incidents were gone, permanently abolished as part of the Restoration settlement. The holding in Chudleigh could be safely dispensed with—but Coke’s arguments had held their own in their own day. 41 In Purefoy v. Rogers (1671), it was held that if a contingent use or devise was not on its face a common-law remainder, it was presumed to be a valid executory interest under the Statute of Uses or Statute of Wills. 1 Wms. Saund. 380, 3 Keb. 11; Baker & Milsom, Sources of English Legal History at 85–88; Baker, Introduction to English Legal History at 321–27. 42 J. L. Barton, “Future Interests and Royal Revenues in the Sixteenth Century,” in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris S. Arnold, Thomas A. Green, Sally A. Scully & Stephen D. White (1981), 321–35, 333–34; Charles J. Reid, “The Seventeenth Century Revolution in the English Land Law,” Cleveland State Law Review 43: 221–302 (1995).

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Slade’s Case, Assumpsit, and Contract Another great case of the 1590’s, Slade’s Case (1597–1602), showed to better advantage Coke’s preference for simple construction and logical implication.43 A foundation of the modern law of contract, Slade’s Case easily ranks with Shelley’s Case as a landmark legal ruling; perhaps outranks it, given the fact that it overtly moved the law forward. The case was a notable example of judicial legislation. As a forward-looking decision, it represents the Elizabethan re-invention of the common law, a process which built on judicial experience, professional consensus, and a jurisprudence of realism—the hallmarks of Coke’s legal philosophy. Slade’s Case arose out of a difference between the Court of King’s Bench and the Court of Common Pleas. Traditionally, under the medieval common law, lawsuits seeking repayment of money, or any other matter sounding in contract, could only be brought under a writ of debt, an action which only the Common Pleas could hear. However, as the law of contract developed under the judges of early Tudor England, the King’s Bench had opened a new avenue for recovery, allowing plaintiffs to bring assumpsit actions for breach of a defendant’s alleged promise to repay. Technically, assumpsit was a species of trespass on the case, due to deceit; the King’s Bench could hear such claims because the defendant’s failure to meet his obligations was held to constitute deceit, the breaking of his implicit promise to meet his obligations. Traditional practice required that the defendant make and break a subsequent promise to repay; the King’s Bench smoothed out this obstacle by treating the defendant’s original agreement as a sufficient promise.44 By the 1590’s, thus, a contract plaintiff had two options. He could sue in debt, based on his contract with the defendant, or in assumpsit, based on the defendant’s broken promise to repay. Suing in assumpsit offered several advantages. Most importantly, a plaintiff could always count on his evidence being heard by a jury. In an action of debt, by contrast, a 43

As well as the articles by John Baker and David Ibbetson, discussed infra, the essential bibliography on Slade’s Case includes A. W. B. Simpson, “The Place of Slade’s Case in the History of Contract,” Law Quarterly Review 74: 381–96 (1958), and H. K. Lücke, “Slade’s Case and the Origin of the Common Counts,” Law Quarterly Review 81: 422–45, 81: 539–61 (1965); Law Quarterly Review 82: 81–96 (1966). 44 S. F. C. Milsom, Historical Foundations of the Common Law 295–96 (London: Butterworths 1969). Under the Tudors, the King’s Bench had streamlined its procedures to compete for litigants’ business with the Court of Common Pleas. Marjorie Blatcher, The Court of King’s Bench 1450–1550: A Study in Self Help (London: Athlone Press 1978).

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defendant could always trump a plaintiff ’s case through wager of law, by producing twelve oath-helpers to swear that he did not owe the plaintiff the money sought.45 Wager of law was very likely a lost cause already. Fewer and fewer defendants relied upon it. David Ibbetson has found that, in Hilary term 1588, out of fifty debt actions brought upon contracts, only five defendants attempted to wage their law, and of these only one succeeded. “In the eyes of one’s neighbors,” Ibbetson has written, “to wage one’s law was tantamount to admitting liability and refusing to pay the debt due. A gentleman would not, dared not wage his law even when confronted with a packed jury or an obviously unfounded claim.”46 Informed opinion was also increasingly skeptical of oath-helping. The “knights of the post,” professional oath-helpers who “would swear you anything for twelve pence,” were being mocked in pamphlets during the same years that Slade’s Case was being argued.47 Opposing Archbishop Whitgift’s campaign against the Puritan classis movement, James Morice had attacked the ex officio oath because it tempted defendants to “hazard their souls” by giving false answers. Morice felt that the problem of perjury was only compounded when a defendant enlisted compurgators to swear to “his fear of God, and former conversation.” With some difficulty, Morice distinguished such improper compurgation (wrongful because it was compelled by church-court officials) from wager of law, which he found permissible (essentially, because the oaths in debt actions were sworn voluntarily). Nonetheless, such arguments could easily be turned against oath-helping in general, and other lawyers would not accept Morice’s distinctions.48 If the King’s Bench was willing to reshape the action of assumpsit, the Common Pleas staunchly defended the existing order. Its judges firmly maintained that a defendant’s option to wage his law was a matter of birthright. Moreover, the Common Pleas insisted, any action on the 45

Assumpsit could also be brought against executors and sureties (when debt could not), and allowed a plaintiff to sue when damages were not fixed (whereas debt could be brought only for damages liquidated in advance). 46 David Ibbetson, “Sixteenth Century Contract Law: Slade’s Case in Context,” Oxford Journal of Legal Studies 4: 295–317, 312–13 (1984). 47 Lorna Hutson, “Not the King’s Two Bodies” at 184–85. Quoted is Thomas Nashe, to whose character Pierce Penniless the devil appeared as a knight of the post. 48 David Harris Sacks, “The Promise and the Contract in Early Modern England: Slade’s Case in Perspective,” in Kahn & Hutson, Rhetoric and Law in Early Modern Europe, 28–53, 39– 40.

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case (including assumpsit) could be allowed only where no existing writ already supplied a remedy—and that assumpsit should not be allowed, as debt already supplied a wholly adequate remedy for contract debtors. The Common Pleas also held firmly to precedent in demanding that the defendant make a subsequent promise to repay his original debt, arguing that only such actual misconduct could be the basis for a claim of deceit. During the 1590’s, the judges of the Common Pleas, sitting in Exchequer Chamber proceedings, began to reverse all King’s Bench decisions allowing assumpsit where an action of debt also lay. Edmund Anderson, now Chief Justice of Common Pleas, was particularly haughty, even refusing to allow argument in support of the other court’s perspective.49 This increased the friction between the realm’s highest courts. Moreover, the rift between King’s Bench and Common Pleas caused uncertainty at the trial level, particularly when individual judges were sent out across the shires to try cases; a plaintiff bringing an assumpsit action at the assizes could not predict whether his case would be heard and allowed by a King’s Bench judge or thrown out by a judge from the Common Pleas. The debate between the courts, John Baker has summed up, may perhaps be regarded as the last stand of Tudor legal conservatives against the legal renaissance of the sixteenth century, and the reformation of the old Year Book learning which this entailed. The Common Pleas, complacent about its paramount position in the judicial system, and proud of the medieval heritage preserved (not without personal profit) by its attorneys and serjeants, represented the conservative standpoint. The King’s Bench, newly enriched by the extension of its business through the use of the latitat, and now vying with its sister court to become a second court of common pleas, was inevitably cast in a progressive role.50

Action was taken to settle this matter. Very likely the initiative came from John Popham, now Chief Justice of King’s Bench. In Lent 1596, at the Exeter assizes, a King’s Bench judge and a Common Pleas judge jointly tried an assumpsit claim by John Slade against Humphrey Morley. The jury found, using a special verdict, that Morley had agreed to buy from Slade a crop of wheat and rye, promised to pay 49 These were statutory Exchequer Chamber proceedings as authorized by a statute of 1586, under which the power to reverse judgments in the King’s Bench had been given to a panel consisting of the Common Pleas judges and barons of the Court of the Exchequer who had been serjeants-at-law. 50 Baker, LPCL at 412.

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£16, made no other promise, and then reneged—a set of findings which inescapably framed the issue. Before judgment was entered, Popham referred the case to all the judges of England sitting in the common-law Exchequer Chamber. Despite the similarity of name, this was an older, non-statutory form of proceeding—and proceeding in this manner, significantly, ensured that the King’s Bench judges could vote. Over the next five years, the lawyers argued and the judges debated. The quality of argument was high. Coke was matched against John Dodderidge, Laurence Tanfield against Francis Bacon, Coke against Bacon. At one point, apparently, the judges let the matter ride for three years, not to let the case die but because they could not reach a consensus.51 On the issue of whether assumpsit could be used instead of debt— more broadly, whether a plaintiff could bring an action on the case when an existing writ covered the transaction—the Common Pleas had chosen its advocates well. In Francis Bacon, they had retained a skillful, subtle intellect, capable of distinguishing most of the precedents which Coke cited. In John Dodderidge they had a second alert and energetic champion. Dodderidge belonged to the Society of Antiquaries; he knew the records and chronicles at least as well as Coke, and with his antiquarian’s zeal could probably have matched him cite for cite and reckless misreading for reckless misreading; and Coke seems to have known better than to risk such an encounter. Against these opponents, Coke listlessly ventured one of his weakest arguments. He argued that the King’s Bench practice of allowing assumpsit, however lacking in support, should be upheld simply because it had continued so long. Beyond this, from Year Book precedent, he claimed to derive the principle “that common course makes a law, although . . . perhaps reason willeth the contrary.”52 This was institutional inertia described as legal reasoning—never persuasive, and particularly weak where (as here) it was offered to justify a departure from traditional practice.53 Chief Justice Popham, making the point more explicitly, had asserted that “if this be error, the ‘community’ of it makes it law,” “communis error facit ius.”54 Similar arguments, in fact, were commonly made by Elizabethan lawyers. They re51 In an unrelated case of 1601, the judges forbade discussion of assumpsit because Slade’s Case was pending. Baker, LPCL at 421. 52 Slade’s Case, 4 Co. Rep. at 93b. 53 Coke may have recognized that the precedents he could cite were weak. Baker, LPCL at 423–24. 54 Barkley v. Foster, ULC MS. Gg.vi.29, fo. 69, BL Harl. MS 4522, fo. 110; Baker, LPCL at 418.

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flected the argument “that a current of precedents will not be overturned merely because, late in the day, it is discovered that the underlying principle was logically precarious or historically unsound.”55 Coke may have made this argument relying on policy, rather than precedent, and counting on Popham to muster support among the judges. As David Ibbetson has noted, the Common Pleas had a plethora of opinions to support the view that an action on the case should not be allowed if an older, formal action lay—but the precedents were old precedents. Within the formalized structure of the writ system the [Common Pleas] argument was a strong one: a single cause of action should give rise to only one possible remedy. But this strict framework had been slowly breaking down for many years, and it was undeniable that there already existed many situations in which the plaintiff was given a choice of remedy . . . . If we can escape from this obsession with the forms of action the policy argument is in favor of the King’s Bench view, for it was clearly undesirable to have one form of action for certain types of agreement and another, assumpsit, for the remainder.56

The King’s Bench view, in Coke’s day, was the modern view. With this momentum behind his argument, he may have felt it safe to concede to Dodderidge the terrain of legal history. In terms of precedent, Coke’s other arguments were sounder. With an eye to the commonsensical, he argued that no second promise was needed to support an assumpsit action; the promisor’s original agreement intrinsically “imported” a promise to make payment. Dodderidge had insisted that only an express promise could suffice, that “the promise must be actual, so that the other may give trust and confidence to it.” By contrast, Coke asserted that the parties’ contract of itself generated an undertaking to perform the duties which the contract created, that a promisee could rightly trust that a promisor could perform.57 Language was critical here. In drafting his argument, Coke first wrote that the promise was implied, then changed the verb to imported, to convey the 55 Baker, The Law’s Two Bodies at 6. Coke would offer the same rationale for upholding bill of Middlesex and latitat proceedings in the King’s Bench, the fictions which the court had used to expand its jurisdiction: “the proceedings in that court for so long time, and under so many honorable judges and reverend sages of the law, have gotten such a foundation as cannot now without an act of parliament, be shaken.” 4 Inst. 72. 56 David Ibbetson, “Sixteenth Century Contract Law: Slade’s Case in Context,” Oxford Journal of Legal Studies at 4: 311. At one point, Coke claimed to be supported by “infinite” precedents from both King’s Bench and Common Pleas. Professor Ibbetson suggests that this was exaggerated and that the courts at best had chosen “to bypass the rule forbidding overlapping remedies, not to ignore it.” Id. at 309 (emphasis in original). 57 Baker, LPCL at 422–23.

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sense more clearly. Here, now, it was Dodderidge’s turn to give ground. It had not been denied, he had to acknowledge, “by even the most conservative of the Common Pleas judges that a promise could be inferred from the fact of entering into a contract.”58 On wager of law, Coke’s arguments relied on craft and experience. For the Common Pleas, it was argued that oath-helping offered a defense to honest defendants. A borrower might receive money in a clearly evidenced transaction—repay it privately, without demanding a receipt— then be unable to defend a lawsuit if the unscrupulous lender now sued, denying that repayment had been made. These risks were not imaginary. In London, when chapmen bought merchandise from wholesalers, they customarily paid in advance for wares to be supplied over a period of years, often without taking or preserving records of their payments. As Common Pleas judges pointed out, if wager of law were not available, the chapmen might face insuperable problems in proving that up-front payment had been made years before, or in proving the fact of each individual payment over a prolonged course of dealing.59 Coke answered these concerns by laying the risk squarely on the borrower or the chapman. It should be deemed a man’s folly, Coke asserted, “that he did not take sufficient witnesses with him to prove the payment he made.” Rather than fear risk, one should take precautions.60 Coke also denied that a court could rely on the solemnity of a defendant’s oath. For now experience proves that men’s consciences grow so large that the respect of their private advantage rather induces men (and chiefly those who 58

Ibbetson, “Slade’s Case in Context” at 308. Baker, LPCL at 425. Given the escalating rates of Tudor inflation, making up-front payment was sound business practice. For long-term commercial relationships, moreover, safeguards were available. As Baker writes, “the use of conditioned bonds was still widespread, and merchants preferred the efficacious securities of statutes and recognizances.” Id. The risks endured by chapmen, the middlemen peddlers who bought and resold most of the goods distributed in rural England, everything from gloves to books to hair for wigs, were not conjured up by the lawyers. The chapmen bought on credit and sold on credit; it was said that whatever money they carried was never their own. If a merchant fraudulently sued and presented his account-book as proof of a debt, the defendant (who could not testify in his own behalf) would likely be unable to defend himself successfully. The problem was finally addressed by statute in 1610. Ibbetson, “Slade’s Case in Context” at 313–14. 60 Coke’s estate records, preserved at Holkham, show that this was his own careful practice. On 2 March 1605, he directed an instruction to his agent Henry Beck: “I have given to my niece Meriell Bohun an hundred pounds towards her marriage and therefore these are to require you to deliver to my Sister Bohun an hundred pounds parcel of your receipt and this shall be your discharge.” Coke Family Papers Supplement, fo. 9. The letter is signed “Your loving master,” but both Coke and Beck preserved the receipt. 59

The Great Cases: Shelley, Chudleigh, and Slade have declining estates) to perjury; for jurare in propria cause (as one saith) est saepenumero hoc seculo praecipitium diaboli ad detrudendas miserorum animas ad infernum; and therefore in debt, or other action where wager of law is admitted by the law, the judges without good admonition and due examination of the party do not admit him to it.61

Coke’s opening phrase, experience proves, signaled the rest of his approach. His Latin tag-line put a classical polish on a cynical suggestion, that defendants’ self-interest had corroded the formal weight of their oaths.62 If judges were already scrutinizing the bona fides of a defendant’s oath in debt proceedings as well as in assumpsit—refusing to allow oathhelping unless due examination suggested it would be proper—then both forms of action were already decided through a weighing of the evidence. In the circumstances, no defendant could honestly claim that oathhelping gave him fundamentally different rights than he would enjoy in a jury trial; and thus there was no reason to preserve the traditional domain of debt against intrusion from assumpsit. Underlying both arguments was a practical concern—sketched by suggestion, perhaps inchoate—for aligning the assumptions on which the law operated with the assumptions on which commerce functioned. Self-interest could lead a debtor to commit perjury, Coke warned; selfinterest could equally remind debtors to obtain proof that they had repaid their loans. Better for the law to face the likelihood of self-interest, to accept and rely upon it, than to presume that it did not exist; better to ask for proof of payment (which a self-interested merchant should keep) than to accept an oath and trust that self-interest would not color what the defendant swore.63 61 Slade’s Case, 4 Co. Rep. at 95a. Research has shown that Tudor judges took pains to assure that the formalism of oath-helping was not altogether a solemn farce. Wager of law barred a defendant’s suit even when the defendant’s oath was demonstrably false. Nonetheless, if the amount in question were large, or other facts suggested that oath-helping might work an injustice, judges sometimes directed that the defendant produce oath-helpers from among his neighbors. Baker, LPCL at 424–26. In effect, this required that a defendant’s claim be accepted by persons who likely were familiar with the defendant, the plaintiff, and the transaction in question—narrowing the divide between the role of the twelve oath-helpers and the role of the twelve jurymen. 62 The Common Pleas was relying on practical arguments to defend a formal device. Coke attacked the case for oath-helping at this vulnerable juncture. Given the many ways in which classical rhetoric taught students to develop arguments and to fit a specific style of argument to the situation, it is tempting to speculate that Coke’s background in rhetoric alerted him to this possibility. 63 The chapmen proved equal to such challenges. Their inventory records often priced goods by category and sometimes by item. One Norfolk chapman of Coke’s day died owing

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In November 1602, likely taking his cue from Chief Justice Popham, Coke prayed the King’s Bench for a decision. Popham answered that two issues had been resolved: “Firstly, that every contract executory implies in itself a promise or assumpsit. Secondly, that although upon such a contract an action of debt lies . . . yet the plaintiff may well have an action in the case upon the assumpsit.”64 Apparently, the decision was narrow. There had been a straw vote of the judges—not a formal seriatim polling, with each judge offering his own opinion—and the margin of victory was likely six to five. Popham intimated that the decision was that of all the judges, and Coke asserted this outright when he published his version of the case (a polished version of his own arguments, omitting others’ speeches) in 1604. “The Common Pleas judges were incensed that they were not allowed to deliver arguments,” J. H. Baker has written, “but Chief Justice Popham’s tough policy ensured that the matter remained settled.”65 After Slade’s Case, assumpsit overran the domain of contract. As pleading evolved, the holding that every agreement imported an assumpsit gave rise to the common counts, ways of recovering in quasi-contract, in situations where no formal contract could be proven. Oath-helping passed into desuetude, and lawyers forgot the procedures for waging law. The door was opened wide to would-be plaintiffs, perhaps too wide. The Statute of Frauds (1677) was passed in an effort to limit the case on which actions could be brought.66 Most notable, for the broader development of Coke’s jurisprudence and the evolution of Anglo-American law, was the way in which Coke refashioned his weakest argument. In Slade’s Case, he maintained that the practice of the King’s Bench, even if erroneous, sufficed to establish the availability of assumpsit. The idea that a community of error made law was a weak argument because it lacked self-confidence; it asserted a claim of consensus, then gave its case away. It was a weak way of putting a _____ “£395.14s.9d for goods to a Londoner, and to two grocers and a haberdasher,” but himself able to prove money due to him of “£411.5s.5d [from] forty-two different people, mainly in very small sums.” Margaret Spufford, The Great Reclothing of Rural England: Petty Chapmen and Their Wares in the Seventeenth Century at 43–45, 69 (London: Hambledon Press 1984). 64 Baker, LPCL at 408–9 (Baker’s translation of BL Add. MS 25203); see 4 Co. Rep. at 94a–94b. 65 Baker, Introduction to English Legal History at 393. The Common Pleas fought a number of delaying actions, and remained critical of the new doctrine, even after Coke published his case report in late 1604, but by 1605 the matter was finally settled along the lines adopted by King’s Bench. Ibbetson, “Slade’s Case in Context” at 303–4. 66 Baker, LPCL at 431.

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stronger perspective, the idea that the law exists in judges’ views and actions. Coke’s theory that the law was the judges’ “artificial wisdom,” the professional consensus and common wisdom of the bar, would make the same point—but this positively and strongly. Reviewing the changes which Slade’s Case represents, David Harris Sacks has pointed out that the decision helped define “consideration” as quid pro quo. In 1624, when John and William Rastell first introduced “consideration” to their Les Termes de La Ley, they defined it as “the material cause of a contract without the which no contract can bind the parties.” Sacks continues: “The concept of ‘material cause,’ derived from Aristotelian metaphysics, focuses . . . on the thing or things of value exchanged between the parties that distinguished the ‘consideration’ from the human and divine purposes—the first and final causes—for which an action is undertaken.” More broadly, to regard consideration as quid pro quo moved parol agreements from the inner world of the parties’ intentions, where conscience alone bound them, to the outward world of enforceable obligations. Focusing on the “material cause” of the contract—something empirically determinable by rational observers—exposed the secret sanctuary of the conscience to public tests, thereby permitting third parties to judge what had been done in the exchange of promises. It also allowed disputes to be treated as trespasses, where decisions rested on the judgments of jurors, grounded in the testimony of witnesses.67

In Slade’s Case, Coke had argued for a materialist perspective—had rejected the evidence of things not seen. He had suggested that the law should trust the tangible records which parties’ self-interest moved them to create, rather than oaths which parties’ self-interest might corrupt. Another Elizabethan took note of oaths and oath-helping and how the old order was changing. William Shakespeare was familiar with the knights of the post and the risks which haunted wager of law. The professional oath-helpers haunted the same Eastcheap slums frequented by Shakespeare’s most colorful band of rogues. When Falstaff spoke of buying “a commodity of good names,” he drew this phrase from the muckraking satire, The Discoverie of the Knights of the Poste (1597).68 A decade later, Shakespeare revisited these issues. In King Lear he arranged on stage two fundamentally opposed, mutually hostile sets of characters. On one side he carefully placed Lear, Kent, and other faithful 67

Sacks, “The Promise and the Contract” at 30, 41. Hutson, “Not the King’s Two Bodies” at 184–85.

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servants, members of the feudal order, governed by the loyalties which they demand or honor. On the other side he set characters ruled not by pledges and responsibilities, but by the demands and appetites of nature: Goneril and Regan and Cornwall, a pack of monsters led by Edmund and served by Oswald. Both the play and the law-case reflect the same opposition, the difference between the world of oaths and the world of exchanges. By the lightning flashes of Lear’s tempest, we can read Slade’s Case in a revealing light. The case is a milestone on the way from the feudal realm, where a web of allegiance was believed to represent society, to the marketplace of Adam Smith and Richard Posner, where enlightened self-interest is held to guide men’s dealings with the grace of an invisible hand.

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chapter 9

Coke’s Historical Learning

Of all the advanced positions which Coke defended, it is his views on history which nowadays seem the most reckless, eccentric, and untenable. He showed himself willing to discuss minute details of procedural law before the Norman Conquest, equate the witenagemot of Saxon Wessex to the Elizabethan House of Commons, and demonstrate that the Druids spoke Greek. The irony of such positions (and the irony cuts both ways) is that Coke was close to the historical learning of his day. Coke collected manuscripts, and he tried to obtain the best possible copies of manuscripts. He was not content to merely accept authority; he checked published statements of legal doctrine against the records in the plea rolls. He spent money to conserve a historical site, the ruined Norman fortress on his estate at Castle Acre. He was closely connected with some of the leading historians of his day. When he wrote about Anglo-Saxon law, he made his typesetters struggle with Anglo-Saxon fonts.1 Yet nonetheless, Coke declared that the Druids spoke Greek—and beyond that, that the Druids heard and decided law-cases in Greek, and that the common law of England had not changed since the days of the Druids. On this issue, there is absolutely no ignoring the case which Coke 1 3 Inst. 63, 3 Inst. 207, 4 Inst. 247, 4 Inst. 261; Jonathan Coad, Castle Acre Castle and Priory at 13 (London: English Heritage 1998) (the £60 spent by Coke at Castle Acre was “one of the earliest instances of conservation work on a secular ruin by a private individual”).

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constructed. He laid its foundations with all his skill as a pleader and with all his energy as an orator. That the laws of the ancient Britons, their contracts and other instruments, and the records and judicial proceedings of their judges were wrote and sentenced in the Greek tongue, it is plain and evident by proofs luculent and uncontrollable: for the proof whereof I shall be enforced only to point out the heads of some few reasons . . . First take a just testimony out of the Commentaries of Julius Caesar (whose relations are as true, as the style and phrase is perfect). He in his sixth book of the Wars of France saith, that in ancient time the nobility of France were all of two sorts, Druids or Equites; the one for matters of government at home, the other for martial employments abroad: to the Druids appertained the ordering as well of matters ecclesiastical, as the administration of the laws and government of the commonwealth; for so he saith, De omnibus controversiis publicis privatisque constituunt, &c. & si quod est admissum facinus, si caedes facta, si de haereditate, de finibus controversia est, decernunt; premia, paenasque constituunt. Concerning the mysteries of their religion, they neither did, nor might commit them to writing, but for the dispatching and deciding of causes, as well public as private faith saith he, Graecis literis utuntur, they used to do it in the Greek tongue, to the end that their discipline might not be made common among the vulgar: now then this being granted that the Druides did customarily sentence causes, and order matters public and private in the Greek language, it will easily follow, that the very same was likewise used here in Britain.2

If the authority of Caesar was not enough, other witnesses might be summoned: Pliny, and Juvenal, and particularly Strabo.

Coke and the Common-Law Mind Even among his contemporaries, there were scholars who took Coke to task, doubting his “confidence and invisible misreported evidences.”3 A member of the Society of Antiquaries took a cautious tone: “Mr. Attorney General in his third report hath made a very learned discourse of the antiquity of the laws of England, where he maketh mention of British laws,” the antiquary wrote. “But of those laws of [that] day I think there remaineth few or none, except they be preserved among the Britons, that fled into Wales.”4 2

Preface to the Third Part of the Reports (1602). William Prynne, Fourth Part of a Brief Register, Kalender and Survey of the Various Kinds / Forms of Parliamentary Writs at 554 (1664). 4 “Of the Antiquity of the Laws of England,” in A Collection of Curious Discourses at 1: 8 (Thomas Hearne ed. 1720), quoted in Glenn Burgess, The Politics of the Ancient Constitution: 3

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William Prynne denounced, with all of his sarcasm and learning, the parliamentary documents which Coke had brought to light. It is not unknown to persons well studied in our Parliamentary affairs and records, with what daring confidence the anonymous compiler of the spurious treatise entitled Modus Tenendi Parliamentum, and reverend Sir Edward Cook (a better lawyer, than antiquary, historian, or record man) the great admirer, applauder and professed advocate of the antiquity and authority of this novel legend, have abused the world with such a mode of holding parliaments in England in the reigns both of Edward the Confessor and William the Conqueror. . . .5

Three hundred years later, J. G. A. Pocock criticized Coke, as the most representative of common lawyers, for the mentality which had honored the Modus and brought it out into the sunlight. The fact is that the common lawyers, holding that law was custom, came to believe that the common law, and with it the constitution [of England], had always been exactly what they were now, that they were immemorial: not merely that they were very old, or that they were the work of remote and mythical legislators, but that they were immemorial in the precise legal sense of dating from time beyond memory—beyond, in this case, the earliest historical record that could be found . . . . Innumerable decisions were consequently on record as declaring that everything which they contained down to the most minute and complex technicality, had formed part of the custom of England from time out of mind; or at least so the common lawyers read them to mean, and this fact is at the root of their interpretation of history.6

This perspective was summed by Pocock as the common-law mind, which he found to be a mentality, or a pathology, afflicting common lawyers. The common-law mind was rigidly insular. It is the belief, both implicit and explicit, that English law is timeless, and perfect, and owes nothing to any foreign system of law. In Tudor and Stuart days, this is a fairly common perspective. For decades before Coke wrote, and for decades afterward, common lawyers were willing to assert that the common law was as old as the realm of England, or possibly as old as the world itself; or that cases had been heard at the Tower of London in Julius Caesar’s day.7 William Fleetwood, whom Coke suc_____ An Introduction to English Political Thought 1600–1642 at 72 (State College: Pennsylvania State UP 1992). 5 Prynne, Fourth Part of a Brief Register at 553. 6 J. G. A. Pocock, The Ancient Constitution and the Feudal Law 36–37 (Cambridge UP rev. ed. 1987); see id. at 30–69. 7 J. H. Baker, “Introduction,” to The Reports of Sir John Spelman 2: 32–33 (Selden Society,

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ceeded as recorder of London, had traced the history of the common law down many of the same trails which Coke would later pursue.8 It should be noted that Coke often hedged his more reckless statements. When he was challenged to prove what the law was in the days of the Druids, his typical response was to trace back the doctrine to the years before the Conquest, and then cite to Sir John Fortescue, to prove that the doctrine must go back the rest of the way.9 Even in his preface to the Third Part of the Reports, he gave away half the game by stating that he would not “examine these things in a quo warranto.” Yet Pocock has a particular critical point, narrower and more acute. Coke’s historical thought, Pocock comments, “could be founded on the presumption that any legal judgment declaring a right immemorial is perfectly valid as a statement of history.”10 This may be amply illustrated—for example, again, from the Preface to the Third Part of the Reports. Having found an early Norman writ of assize, Coke drew a peculiarly specific set of conclusions. That time out of mind of man before the Conquest there had been sheriffs; for the writ of assize, and every other original writ is directed to the sheriff, and cannot be directed to any other . . . . That likewise by all that time there were trials by the oath of twelve men: for the words of the writ of assize are, Et interim fac’ 12. Liberos et legales homines, &c. That by like time there had been writs of assize and other original writs returnable into the King’s Courts . . . .

Perhaps David Yale put it more kindly: when Coke discussed a detail of history, he did it as a lawyer vouching authority for a proposition, rather than as a historian giving primary evidence for a fact.11 But the criticism remains inescapable. _____ Vol. 94, 1977). Among recent scholarship which explores the development of historical scholarship in England during the early modern era, see Graham Parry, The Trophies of Time: English Antiquarians in the 17th Century (Oxford UP 1995); D. R. Woolf, The Idea of History in Early Stuart England: Erudition, Ideology, and the “Light of Truth” from the Accession of James I to the Civil War (University of Toronto Press 1994). Earlier works which retain their usefulness include Stuart Pigott, “Antiquarian Thought in the 16th and 17th Centuries,” in Levi Fox, ed., English Historical Scholarship in the 16th and 17th Centuries (Dugdale Society 1956), 93–114 and C. L. Kingsford, English Historical Literature in the 15th Century (Oxford UP 1913). 8 J. D. Alsop, “William Fleetwood and Elizabethan Historical Scholarship,” Sixteenth Century Journal 23: 155–76 (1994). See also R. F. Hardin, “Geoffrey Among the Lawyers: Britannia by John Rous,” Sixteenth Century Journal 23: 235–49 (1992) and R. J. Schoeck, “The Elizabethan Society of Antiquaries and Men of Law,” Notes & Queries 199: 417–20 (1954). 9 Burgess, The Politics of the Ancient Constitution at 73–75. 10 Pocock at 38. 11 D. E. C. Yale, “Hale as a Legal Historian,” Selden Society Lecture at 11 (1976).

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And whenever he had the chance, Coke traced a legal doctrine back into dim antiquity. He traced Parliament to before the Norman Conquest.12 He traced the origin of the knight’s fee, and the division of England into shires, to the reign of Alfred the Great.13 He traced the common law rules on heirship and descent to the Saxons, and asserts that the Saxon laws were “agreeable” to the practice of the Britons.14 He traced the rule that certain beasts of burden could not be distrained to the laws of the mythical Celtic law-giver Dunwallo Molmutius.15 And he did assert that the Druids heard and ruled on cases, in Greek. Part of the problem is Coke’s own carelessness. In the Preface to the Third Part of the Reports, this sentence stands out: “And this appeareth by the book of Domesday now remaining in the Exchequer, which was made in the reign of Saint Edward the Confessor, as it appeareth in Fitzherbert’s Natura Brevium, fo. 16.” This ascribes Domesday Book to Edward the Confessor, but Coke knew better. He owned digests of Domesday and he had studied them carefully. He knew that its Latin owed much to French and that some other Latin terms for English nouns were older— that the Latin bordarii related to French borde and that such cottagers should be distinguished from villani who “were ever named before bordarii.” He knew that Domesday recorded information from the reigns of both the Confessor and the Conqueror; he wrote elsewhere of “all the manors that were in the hands of Edward the Confessor before the conquest, or in the hands of William the Conqueror, and so appear in the book called Domesday.”16 He had probably been present during one of those memorable trials, involving ancient demesne, when Domesday Book itself was carried into the courtroom.17 Coke knew all that. And yet he wrote, and allowed to let stand beneath his name, a sentence which 12 Most notably during the Parliament of 1593. See Sir John Neale, The Elizabethan House of Commons at 406 (rev. Penguin ed. 1963). 13 Co. Litt. 14a (history of knight’s fee); Preface to the Ninth Part of the Reports (division of realm into shires). See also Co. Litt. 75b–76a (Coke finds knight’s fee in laws of Edward the Confessor, following Lambarde). 14 2 Inst. 7. 15 2 Inst. 132; see also the Preface to the Third Part of the Reports. 16 Co. Litt. 5a–5b (bordarii, borde and villani); 2 Inst. 542; see also 4 Inst. 256 (“in the book of Domesday made by William the Conqueror”). 17 Partition, Goldsborough 105–6 (1588) (“as it was proved by the book of Domesday, which was there shewen, and a clerk of the Exchequer read it (for other clerks could not), and he said, and so said the serjeants . . .”); Hunt v. Burn, 1 Salkeld 57, citing Saunders and Welsh’s Case (1612). See further Elizabeth M. Hallam, Domesday Book Through Nine Centuries (London: Thames & Hudson 1986).

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ascribed Domesday Book to the last Saxon king rather than the first Norman monarch. Such negligence inevitably carries a price. There must obviously have been a time when England was divided into shires—but acknowledging this does not require that the decision be ascribed to Alfred. Something like feudalism may have existed before the Conquest, and the Conqueror may have begun by preserving AngloSaxon institutions (only to impose Norman institutions later in his reign, when his English subjects proved otherwise ungovernable)—but sensing such continuities does not require a categorical insistence that existing institutions have always operated.18 These problems add another layer of difficulty to the ultimate question: why does a man who should know better, lend his credibility to radical, insupportable arguments?

Coke’s Historical Collections For his day, Coke was a formidably well-read man. He had a huge armory of printed books and manuscripts in his library at Holkham—to judge by the catalogue, he collected history books more frequently than books from any other field.19 He had all the books of Anglo-Saxon history which had been published by Matthew Parker, Elizabeth’s first Archbishop of Canterbury.20 He had all the chronicle histories which Sir Henry Savile had published in the 1590’s.21 He had all the Elizabethan histories which a scholar would expect, Holinshed and Lambarde and Camden.22 18 Were some debate to be held in eternity, the Lord Chief Justice might argue, with typical verve, that many of his hypotheses were validated by later scholars. He could, for example, cite The Governance of Medieval England, by H. G. Richardson and G. O. Sayles (1963), for proof that “feudal” holdings antedated the Conquest. 19 W. O. Hassall, “A Catalogue of the Library of Sir Edward Coke” (New Haven: Yale Law Library Publications 1950). 20 Coke’s library at Holkham featured Parker’s editions of Matthew Paris, Asser, Thomas of Walsingham, Matthew of Westminster, and De Antiquitate Britannicae Ecclesia, Holkham Catalogue Nos. 497, 504, 508, 506, as well as a unique volume of pre-Conquest laws from Parker’s collection, Holkham Catalogue No. 337. Coke’s copy of Bartholomaeus Anglicus, De proprietatibus rerum, bears Matthew Parker’s signature in red chalk. Holkham Cat. No. 581. On Parker’s use of red chalk, see May McKisack, Medieval History in the Tudor Age at 36–37 (Oxford UP 1971). 21 Savile’s chronicle histories at Holkham are Rerum anglicarum post Bedam; Tacitus; and Malmesbury, Huntingdon, Hoveden, Ethelward, and Ingulph. Holkham Catalogue Nos. 499, 501, 541, 500. McKisack at 64–65. 22 Lambarde, De priscis Anglorum legibus, Holkham Catalogue. No. 377; Lambarde, The Perambulation of Kent, No. 610; Holinshed’s Chronicle, Nos. 509–11; Camden, Annales: The True and Royal History of the Famous Princess Elizabeth, No. 496. See also 3 Inst. 180 (Coke quotes Camden).

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Nor did Coke limit himself to Protestant sources. He owned Richard Verstegan’s Restitution of Decayed Intelligence and Thomas Stapleton’s translation of the Venerable Bede. These were Roman Catholic works, printed in the Low Countries.23 He had Henry Lluyd, and five books by John Selden, and Sir John Davies’ book on Irish law (rated by Pocock as the most outstanding piece of historical analysis written during the reign of James I).24 On Dunwallo Molmutius, Coke could consult a manuscript transcription of this great king’s laws. This had been dedicated to him by John Llewys of the Inner Temple, who would go on to write a history of Celtic Britain.25 Beyond this, Coke had dozens of manuscripts on British history, pre-Conquest laws, and sixteen centuries of the history of the Christian faith: the catholic church, both Anglican and Roman. Coke was a very bookish man, and his bookishness—first shown by his research in Lord Cromwell’s Case—persisted throughout his career at the bar. He knew his history and he knew his Year Books, and he cited them as often as possible. When he argued the right to present to a vicarage, he could trace this right back to the days of Edward III.26 When he had a tithe case, he could refer to the practice of the Church prior to the Lateran Council.27 In another tithe case, he proved that the Latin word garba meant “hay” by citing a patent issued by King John.28 He told one panel of judges that common-law pleading had reached its peak during the days of Edward III. They were skeptical, and ruled against him.29 Coke was not always a scrupulous textual critic. He owned at least three different versions of Magna Carta, but does not seem to have recognized that the Great Charter existed in variant editions.30 On many oc23

Holkham Catalogue Nos. 585, 597. Henry Lluyd, Holkham Cat. No. 518; John Selden, On Duels, No. 1066; Marmorea Arundeliana, No. 1227; Jani Facies Anglorum (two copies), Nos. 402, 1084; his critical history of tithes (No. 421), and an edition of Eadmer (No. 513); Sir John Davies, A Discovery of the True Causes Why Ireland Was Never Entirely Subdued, Nor Brought under Obedience of the Crowne of England, until the Beginning of His Majesty’s [James I’s] Happy Reign, No. 968. For Pocock’s comment, see The Ancient Constitution and The Feudal Law at 62. 25 Holkham Manuscript 227; see Historical Manuscripts Commission, Ninth Report (appendix), The Manuscripts of the Right Honorable the Earl of Leicester, Holkham Hall, Norfolk at 358 (1883). 26 Slugge v. Bishop of Llandaff, 1 Leon. 181 (1589). 27 Wright v. Wright, Cro. Eliz. 511 (1596). 28 Barsdale v. Smith, Cro. Eliz. 633 (1598). 29 Herring v. Blacklow, Cro. Eliz. 29 (1584). 30 Holkham Cat. Nos. 370, 371, 372. The way in which successive chroniclers conflated versions of Magna Carta, and how Matthew Paris (Coke’s apparent source) declined to straighten things out, are discussed in Sir James Holt, Magna Carta at 401–5 (Cambridge UP, 2d ed. 1992). See further Philip Styles, “Politics and Historical Research in the Early Seven24

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casions he was more particular. When it came to ancient authorities, Coke could be very keen at sniffing out forgery and corruption. In the Second Part of the Institutes, he discussed the strict formulaic order which fines had to follow, and then added, “I have known a chirograph of a fine discovered of forgery by not observing this order.”31 He also examined with some care the texts with which he worked. He called Littleton’s Tenures “a work of absolute perfection in its kind”—but in one place, where Littleton said Nottingham, Coke noted, “This should be Northampton, according to the original.”32 He loaned charters to Sir Robert Cotton, and he borrowed charters from Sir Robert Cotton, trying to get the best texts available.33 Coke sponsored textual scholarship, work by Anglican scholars which was meant to produce the best possible editions of patristic texts. One of his protégés was a Puritan minister named William Crashawe. Crashawe began life in Yorkshire, but it seems that Coke brought him south, to serve as a preacher at the Temple Church.34 Crashawe’s academic specialty was purifying patristic texts, editing out passages in which Roman Catholic theologians had altered the text to justify unsound doctrine or support claims of papal supremacy. His book on this is in Coke’s library.35 If Coke understood what Crashawe was working on—as he undoubtedly did—he must have been aware of what this meant for the law. If the writings of the Church Fathers could be corrupt, or inaccurate, the works of the sages of the law must equally be subject to such failings. Most intriguing, although least flattering, is the possibility that Coke _____ teenth Century,” in English Historical Scholarship in the 16th and 17th Centuries (Dugdale Society: Levi Fox ed., 1956), 49–72. It also appears that, at least twice, Coke, or an editorial assistant, copied parts of glosses as part of the text. See Samuel Thorne, “Preface,” Holkham Catalogue at vii (abstract of records by Arthur Agarde copied by mistake into text, 4 Inst. 244); Baker at LPCL 443 (medieval gloss copied into Preface to Tenth Part of the Reports); and Co. Litt. 168a (possible misreading of gloss equating sheriffs with Roman vicontes). 31 2 Inst. 513–14. 32 Co. Litt. 293b. In another instance, where Plowden had vouched that a case had been decided in the fourth year of Edward III, Coke set aside his hero-worship of Plowden, hunted out the decision, and did not rest until he had located it, in a Yearbook for 5 Edw. III. See Co. Litt. 21a. 33 Historical MSS Commission, Report on the MSS of the Earl of Leicester at 366–67 (notes to Holkham MS 677, fo. 405 and 406). 34 P. J. Wallis, “William Crashawe, the Sheffield Puritan,” Transactions of the Hunter Archaeological Society 8: 111 (1958). Some of Crashawe’s papers appear to be among Coke’s at Holkham. See Holkham MSS 230, Historical Manuscripts Commission Report at 359. 35 William Crashawe, “Ferus in Johan: corrupt et restitut per Crashaw,” Holkham Catalogue No. 69. See also Thomas James, Of the Corruption of the Fathers, Holkham Catalogue No. 111.

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knew about forgery and hoaxing because he himself had engaged in such misconduct. In his Preface to the Tenth Part of the Reports, Coke printed what purported to be a writ dating to 1315, naming William Herle as a serjeant-at-law. Coke stated that the writ had been found “in very ancient Registers.” Given Coke’s authority, this writ was accepted as genuine for more than three hundred years. However, in the early years of the reign of Elizabeth II, Professor G. O. Sayles was editing the Year Books of Edward III for the Selden Society. Looking at the factual record, Sayles noted that the writ simply could not be that old. “It seems likely,” Sayles concluded, “that Coke has added yet another of his myths to the history of the law by printing a writ of current form of his own day and casually filling in the name of a king’s serjeant from his remembrance of Herle’s position.”36 Very frequently, Coke was willing to push the law. What he did in publishing this writ suggests that he was also willing to improve the record by creating documents which he felt history needed. The commonlaw mind is usually said to be a mentality. But when we see that Coke was eager to rewrite the historical record, both to purify it and to conform it, a different word is called for. When Queen Elizabeth’s loyal Speaker of the House of Commons asserted that Parliaments had functioned since before the conquest, or when the Queen’s vociferous Attorney-General asserted that the common law of England was the most equal and certain of all laws,37 then ideas were being pressed into the service of a political agenda. The process had gone beyond mentality into nationalism, something that prefigured ideology. “Why a God’s name may not we, as else the Greeks, have the kingdom of our own language?” Edmund Spenser had asked. The writers of England had taken up that gage. Rhymed verse was challenging metrical stanzas. Thomas Sackville of Coke’s own Inner Temple had written of Yorkist double-dealing and ancient British turbulence: Gorboduc prefigured King Lear (and Sackville became the Lord Buckhurst to whom Coke dedicated his report of Shelley’s Case). The country was being mapped, its landmarks sketched, its countryside celebrated by chorographers. Accustomed to asserting the rights of Englishmen, the lawyers followed the poets in asserting their nation’s place among the cultures of Europe. By calling his case-reports the Commentaries, Plowden had echoed the glos36 G. O Sayles, “Introduction,” Select Cases in the Court of King’s Bench Under Edward III at 5: lxiv–lxv (Selden Society, Vol. 76, 1957). 37 Preface to the Second Part of the Reports (1602).

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sographers of Rome. There was one further challenge which a common lawyer might issue for his profession’s honor—a place to be claimed alongside Justinian’s Institutes. With every case he recorded, every doctrine he elucidated, Plowden’s greatest pupil moved closer to the tournament lists.38

The British History and Archbishop Parker When Coke connected the common law to Druids, he wrapped his personal knowledge of legal history in that grand cycle of myth and romance which is known as the British History. These are the medieval tales of the history of the Isle of Britain, in which the Britons descend from a party of exiled Trojans, and King Arthur conquers Rome.39 This vision of the past descends from Geoffrey of Monmouth. The rest of Europe had never heard of the events Geoffrey narrated, but the English and the Welsh took pride in them; and probably Coke did as well. His library at Holkham included two copies of Geoffrey’s history, in one of which Coke had signed his name.40 In Coke’s day, recent ecclesiastical events had breathed new life into Geoffrey’s old story. When Henry VIII expelled the Pope and all his followers from the catholic Church, it became necessary to show that the Church of England had a history independent of the Church of Rome. Matthew Parker and his research staff began to ransack the British History. And they quickly produced evidence that the first Christian church building had been erected at Glastonbury; and that King Lucius of the Britons had been personally converted by Joseph of Arimathea; and that two Britons mentioned in a poem by Martial also were mentioned in the correspondence of St. Paul.41 38 Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (University of Chicago Press 1992); Richard Foster Jones, The Triumph of the English Language (Stanford UP 1953). 39 The best précis of the British History is T. D. Kendrick, British Antiquity 7–9 (London: Methuen 1950). See further Hugh MacDougall, Racial Myth in English History: Trojans, Teutons, and Anglo-Saxons (Hanover, NH: University Press of New England 1982); Sydney Anglo, “The British History in Early Tudor Propaganda,” Bulletin of the John Rylands Library 44: 17–48 (1961–62); A. E. Parsons, “The Trojan Legend in England II,” Modern Language Review 24: 394–408 (1929); G. H. Gerould, “King Arthur and Politics,” 2 Speculum 2: 33–51 (1927). 40 Holkham Catalogue Nos. 505, 516 (signed). 41 2 Timothy 4:21; Kendrick, British Antiquity at 57. See further F. J. Levy, Tudor Historical Thought at 120–22 (San Marino: Huntington Library 1967); Kendrick, British Antiquity at 111–

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The use which Matthew Parker made of the British History, as a foundation for the Church of England, is very important to Coke. Because not only did Coke own all the books on Anglo-Saxon history which Parker had published; he also owned a good number of Parker’s own manuscripts. His manuscripts at Holkham include a long list of charters, collections of Anglo-Saxon laws, and ecclesiastical documents. These are all from Parker’s circle: they are bound with Parker’s coat of arms; and it seems that they were presented to Coke by the archbishop’s son John Parker.42 Some of these materials bear marginalia in red chalk, the telltale sign that these annotations were made by Parker or his inner circle.43 One of the Parker manuscripts at Holkham includes an abstract of Caesar’s Gallic Wars, Book Six, on the Druids.44 So, very possibly, Coke may have received his notion that the Druids had been law-givers, speaking Greek as the judges of his own day spoke Law French, directly from Parker’s circle. Coke used this material during his career as an attorney. In 1600, in a case concerning church courts’ jurisdiction over testamentary matters, Coke clinched a point by announcing, “I have a book published in Latin, anno domini 1573, by the most reverend prelate Matthew Parker Archbishop of Canterbury, very expert in matters of antiquity.”45 _____ 13; also Vivienne Sanders, “The Household of Archbishop Parker and the Influencing of Public Opinion,” Journal of Ecclesiastical History 34: 534–47 (1983); Pamela Black, “Matthew Parker’s Search for Cranmer’s ‘Great Notable Written Books,’ ” The Library (5th ser.) 29: 312– 22 (1974); C. E. Wright, “The Dispersal of the Monastic Libraries and the Beginnings of Anglo-Saxon Studies,” Trans. of the Cambridge Bibliographical Society 1: 208–37 (1951); W. W. Greg, “Books and Bookmen in the Correspondence of Archbishop Parker,” The Library (4th ser.) 16: 243–79 (1935); E. C. Pearce, “Matthew Parker,” The Library (4th ser.) 6: 209–28 (1925). 42 Historical MSS Commission Report at 358–59, Holkham MS 228 (bearing Coke’s signature and Parker coat of arms). 43 Holkham Catalogue No. 581. 44 Holkham MS. 228, fo. 170. 45 Hensloe’s Case, 9 Co. Rep. 36b, 38a (1600). The book in question was probably Holkham Catalogue No. 506, given to Coke by John Parker, son of the Archbishop. Coke may also have learned from Parker one piece of ecclesiastical arcana. When Archbishop Abbot was in trouble for accidentally killing a gamekeeper with a crossbow-bolt, the issue was raised whether a bishop might hunt. Coke came to Abbot’s defense—as the story is told—by noting that bishops were to hunt, because a bishop’s pack of hounds escheated to the Crown. In De Antiquitate Britannicae Ecclesiae, Parker noted that the hounds of the bishop of Rochester (together with a silver cup) went to the Archbishop of Canterbury on the death of the bishop of Rochester. V. J. K. Brook, Life of Archbishop Parker at 324 (Oxford UP 1962). However, Coke could also have learned this from the notebooks of Chief Justice Dyer, which refer to charges due to Henry VIII from the executor of the bishop of Bath and Wells, “for the price of a horse, saddle, bridle, cloak, ring, ewer, and pack of hounds.” J. H. Baker, Reports from the Lost Notebooks of Sir James Dyer at 1: 2 (Selden Society, Vol. 109, 1993).

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Given these sources, Coke’s statements about legal history, his insistence that the common law is unchanging and timeless, are really a late flowering of the school of Archbishop Parker. They are part of the Elizabethan initiative in propaganda history. Just as Parker wanted to find an honorable past for the English church, Coke wanted to find an equally honorable pedigree for the common law.46

Coke and the Society of Antiquaries In a sense, Coke was Parker’s intellectual heir. He succeeded to the possession and use of Parker’s manuscripts. And Coke had another intellectual connection, which may have been even more important. He enjoyed a close, working relationship with three prominent members of the Elizabethan Society of Antiquaries. In the Preface to the Third Part of the Reports, when discussing the history of seals in England, Coke relied on an example supplied to him by Joseph Holland. It was never unlawful for any subject to put his own seal to any instrument, as may appear by infinite precedents, amongst which for an instance I thought good here to remember one for all, which Master Joseph Holland of the Inner Temple a good antiquary and a lover of learning delivered unto me, and beareth date Anno. 33 Henry 2 and is sealed at this present with two fair ancient seals.47

In his library at Holkham, Coke possessed an abstract of a Parliament roll prepared by Francis Tate, another member of the Society.48 Coke had even more materials prepared by Arthur Agarde. He had two volumes of Year Book abstracts which Agarde had prepared, and an abstract of Domesday which could only have come to him through Agarde’s good offices.49 These three antiquaries—Agarde, Holland, and Tate—were arguably 46 “Lambarde’s works were not directly products of the school which Archbishop Parker organized, but there is no question but that there was a relationship between around Parker and those around Burghley. Lambarde was perfectly aware that his own Saxon studies reinforced those of the archbishop, and the two circles of scholars seemed to have mixed constantly.” Levy, Tudor Historical Thought at 14. 47 Preface to the Third Part of the Reports; May McKisack, Medieval History in the Tudor Age at 69. 48 McKisack at 69; F. Smith Fussner, The Historical Revolution: English Historical Thought and Writing 1580–1640 at 83–84 (New York: Columbia UP 1962). 49 Holkham Catalogue Nos. 316, 317, 322. See further Samuel Thorne, “Preface,” Holkham Catalogue at vii–viii.

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the three most active members of the Society. Agarde and Holland addressed the Society dozens of times, when Camden spoke only on eleven occasions.50 Agarde was the greatest of the early keepers of Domesday Book, and oversaw the Society.51 Tate may have been the purest scholar of the group. He produced the first transcript of the Textus Roffensis. This means that he was following the traditions of Archbishop Parker, continuing to bring to light the history of the early English church.52 This connection is particularly suggestive. Coke was in regular working contact with the antiquaries; and many of the specific statements he made about history relate to topics which the Society of Antiquaries had discussed. Agarde and Holland both apparently believed that the Britons descended from the Trojans.53 In the Preface to the Third Part of the Reports, Coke’s discussion of the history of seals relied explicitly on Holland. In the Preface to the Ninth Part (1613), Coke asserted that King Alfred divided England into shires. This was a topic on which Agarde had addressed the Society of Antiquaries, in 1591.54 Coke’s derivation of the word Parliament, that it came from the French parlez-la-ment, to speak one’s mind, was among the derivations which the antiquaries had previously offered.55 And he may have shared with the leader of the Antiquaries a scholastic nostalgia for medieval centuries. Coke asserted that the golden age of common-law pleading had been the reign of Edward III. 50 Agarde addressed the antiquaries approximately 21 times, while Holland spoke approximately 21 times; Tate gave at least seven addresses and possibly as many as 33. Linda Van Norden, “The Elizabethan College of Antiquaries” at 134–43, 148, 171–76 (unpublished doctoral dissertation for the Department of English, University of California at Los Angeles 1946). 51 Van Norden at 560 (Agarde’s background); Sayles, Selden Society at 76: xiv (indexing by Agarde of King’s Bench materials). Hallam, Domesday Book Through Nine Centuries (Agarde’s career as keeper of Domesday). At meetings of the antiquaries, Agarde brought in books and documents to support his talks, and apparently pressed his fellows to evaluate the conclusions offered by speakers. Van Norden at 403–5. 52 Van Norden at 142–50, 181–82; see McKisack at 68–69. 53 Kendrick, British Antiquity at 100–101. 54 Van Norden at 171. 55 E. Evans, “Of the Antiquity of Parliaments in England: Some Elizabethan and Stuart Opinions,” History (n.s.) 23: 206–21 (1938). Other suggestions included parium lamentum, “where the peers lamented the grievances of the realm” and par-lamentus, “an equal and just complaint or sharing of grievances.” Van Norden at 375. Holland found that all three classes of the community of the realm had been included in the Parliaments of Edward I. Agarde traced Parliament to the days of Canute (and thus may have helped Coke with his attempts to date the Modus Tenendi Parliamentum, discussed below), while Coke traced it back further, possibly as far as the British conventus which Tacitus had mentioned. All antiquaries who considered the point felt that it was functioning in the reign of Edward the Confessor. Co. Litt. 110, 4 Inst. 1–3.; compare Van Norden at 378–80.

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This assertion echoes a statement made by Agarde: that the greatest of English heralds had been those who practiced under Edward III.56 No matter how wrong or reckless his historical statements, Coke could cite authority for what he said—including the authority of the Antiquaries. Perhaps more important, Coke may have taken from the Antiquaries not only their historical conclusions, but also their techniques. The Antiquaries preferred documentary history over analytical history. At their meetings, it seems, they presented and read aloud what they had found in searching the records, rather than struggling to determine its context.57 Coke seems to follow this same approach. In 1605, in a letter to Robert Cecil, he explained that he had sought to publish the text of English statutes on the roles of Church and Crown, without any “inferences or bombasting.”58 The Antiquaries bound themselves to use only English sources for their historical research.59 If Coke relied on their authority, this may help explain the insularity of his outlook. In considering Coke as a state servant and judge, we may forget that he was something of a savant. He valued learning. He took a lasting interest in preserving historical records. Long after his removal from the bench, he learned that the records in the Tower of London were stored in the same premises which housed the powder-magazine. Taking action, he asked King James to move either the records or the gunpowder.60

The “Modus” and the “Mirror” Coke’s voracious appetite for learning was a fundamental part of his character. And his interest in learning was fundamental: it was consistent and long-lasting. Where his understanding was limited—and, undeniably, it was—the reason may relate to the nature of his work. 56 McKisack at 86–93 (Agarde on heralds); Herring v. Blacklow, Cro. Eliz. 29 (1584), Co. Litt. 303a (Coke on pleading). 57 Van Norden at 382–83, 403–4. 58 Coke wrote: “It seemed to me very necessary that something were published manifesting (without any inferences or bombasting) the very records of the ancient laws and statutes of England.” Fussner, The Historical Revolution at 84. 59 Van Norden at 352–53, 358. Agarde wrote that the antiquaries had bound themselves that, “as near as might be, the most proofs of our questions should be produced from our home writers, evidences, laws, and deeds, and not from foreigners and strangers ignorant of the state and government of our country.” Id. at 358. 60 R. B. Wernham, “The Public Records in the Sixteenth and Seventeenth Centuries,” in English Historical Scholarship in the Sixteenth and Seventeenth Centuries, ed. Levi Fox (Dugdale Society 1956), 11–30, 27.

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Coke’s legal history was popular legal history. His favorite history books were popularizations, like Geoffrey of Monmouth, or unselective, sprawling chronicles, like Florence of Worcester. When he turned to better sources, the books he used were works heavily engaged in the politics of their day, like Matthew Paris.61 It is no surprise that Coke’s greatest success, as a historian, was as a popularizer. He popularized The Mirror of Justices and De Modus Tenendi Parliamentum.62 Prynne was wrong to blame Coke for the influence of the Modus. The treatise had been discussed and copied long before Coke; as early as 1510, a transcription had been attached to the journals of the House of Lords. Young Thomas Egerton had owned a copy, William Lambarde had worked his way through a copy; the Dukes of Norfolk, hereditary Earl Marshals of England, had owned manuscript copies. Coke himself owned at least three copies.63 Coke did give the Modus its most celebrated recommendation, on the floor of the Commons in 1593. At first we were all one House and sat together, by a precedent which I have of a Parliament holden before the Conquest by Edward the son of Etheldred. For there were Parliaments before the conquest. This appeareth in a book which a grave Member of the House delivered unto me, which is entitled Modus Tenendi Parliamentum: out of the book I learn this, and if any man desire to see it I will shew it him.64

This was a sterling recommendation, even if Tudor reporting techniques have muddled the exact reference.65 61

Matthew Paris’s work covered the period from 1235 to 1259, a period roughly contemporaneous with the events of which he wrote. Like two other St. Albans historians, Roger Wendover and Thomas Walsingham, he used official records and spoke out on current events. V. H. Galbraith, “Historical Research in Medieval England” at 32–33 (Creighton Lecture in History: London, Athlone Press 1949). Later, John Bale urged that Matthew Paris be printed, “for no chronicle painteth out the bishop of Rome in more lively colors, nor more lively declareth his execrable proceedings.” Levy, Tudor Historical Thought at 96; N. L. Jones, “Matthew Parker, John Bale and the Magdeburg Centuriators,” Sixteenth Century Journal 12: 35–49 (1981). 62 Styles, “Politics and Historical Research in the Early Seventeenth Century,” English Historical Scholarship at 62–63. 63 Vernon F. Snow, Parliament in Elizabethan England: John Hooker’s “Order and Usage” at 50–57 (New Haven: Yale UP 1977); David Starkey, “Stewart Serendipity: A Missing Text of the Modus Tenendi Parliamentum,” Fenway Court 39–51 (1986); Holkham Catalogue. Nos. 333, 335, 345. 64 Sir John Neale, Elizabeth I and Her Parliaments 1584–1603 at 2: 313–17 (New York: St. Martin’s Press 1958). 65 Possibly, Coke may have meant to refer not to the text of the Modus itself, but to an interpretation of the Modus by John Hooker (alias Vowell), chamberlain of Exeter. In 1572, Hooker had published a tract, The Order and Usage of the Keeping of A Parliament in England.

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The care which Coke took in checking sources is reflected in one of the copies of the Modus which he owned, the illuminated copy which had come to him from the Howards. The Fourth Duke of Norfolk probably commissioned this work in preparation for Queen Elizabeth’s coronation; in Coke’s hands it became a working reference. He was concerned with how old the Modus might be. In Law French marginalia, he traced it to a year before 1403, and to a time when there had been a Steward of England. That took him back to the fourteenth century. Then, however, he found a crossreference which carried him back three centuries further: vide librum precedentium 535 tempore Canuti regis. This was, he later elaborated, “from the ledger book of the late monastery of St. Edmundsbury, now in my hands, of an ancient handwriting.” If King Canute had summoned a particular parliament in 1020–21 a.d., the Modus could be located before the Conquest, in debatable land which put its assertions beyond debate.66 Very likely, Coke first learned from Plowden of the Mirror of Justices. Coke’s mentor had alerted the lawyers of England to the existence of this treatise in 1571, when he reported a case of 1550.67 The one surviving copy of the Mirror was among the manuscripts which Archbishop Parker had deposited in Cambridge; Coke may have pondered its contents over the next four decades, in the same way he annotated his copy of Bracton.68 In the Preface to the Ninth Part of the Reports (1613), Coke would quote extensively from the Mirror. He quoted it so extensively that he seemed to have accepted it in its entirety, down to its assertions that King Arthur had originated Parliament. It was such quotation that led Maitland to call him “the credulous Coke.”69 It is correct, as Pocock colorfully observed, that Coke ought to have smelled out some of the historical rats which infest the Mirror.70 Yet one _____ Under this title, Hooker had included both an English translation of the Modus and a description of how parliament operated. It was apparently to Hooker’s commentary that Coke was referring; either the Speaker or the diarist who recorded may have confused the two books. Snow, Parliament in Elizabethan England at ix, 90–91, 153 (1977). 66 David Starkey, “Stewart Serendipity: A Missing Text of the Modus Tenendi Parliamentum,” citing Coke’s Preface to the Ninth Part of the Reports (1613) and Holkham Catalogue No. 333. 67 1 Plowden 8. 68 David J. Seipp, “The Mirror of Justices,” in Learning the Law: Teaching and the Transmission of Law in England 1150–1900, ed. Jonathan Bush & Alain Wijffels (London: Hambledon Press 1999), 85–112, 88–89. 69 Frederic Maitland, “Introduction,” The Mirror of Justices at x, ed. W. J. Whittaker (Selden Society, Vol. 7, 1895). 70 Pocock at 67–68.

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might observe, on Coke’s behalf, that the Mirror was not a forgery, that it was a genuine medieval document, and that it had an exceptional provenance. It had come to Parker’s team of researchers out of the London Guildhall, and before that from Andrew Horne. What has been learned of Horne amply supports Coke’s description of him as “a learned and discreet man.” In the days of Edward I and Edward II, Horne had been chamberlain of London, a judge in the Guildhall, and an antiquary born before his time. He had amassed and annotated records, statutes, charters, old treatises, evidence of city customs, Anglo-Saxon law-codes. He inscribed his name on the manuscript of the Mirror and carefully mentioned it, by name, in his will.71 Horne had valued the Mirror, and what such a predecessor had valued, a later judge might trust. In 1550, when the Mirror reappeared, it had been the Attorney-General who cited it; then Parker had taken possession of it; the chain seemed impeccable, sure to hold. Coke hedged the endorsement which he gave to the Mirror. Though “most of it was written long before the Conquest,” he asserted, “yet many things were added thereunto by Horne . . . in the reign of Edward I.”72 He did not hedge quite enough to protect himself. Coke may have sensed in the treatise an outlook similar to his own— an author who, like himself, consulted the legal past to find support for his political theories. The unknown original author of the Mirror, dissatisfied with the changes wrought by Edward I, had apparently “appealed to legal history in the form of a fabricated, pre-Conquest system of law vastly superior to the one under which he lived.”73 He may have recited what the Mirror said about Arthur because that was necessary to support what the Mirror said on other issues. David Seipp, in a remarkable article, has pointed out parts of the Mirror which must have drawn Coke’s attention, and many of them his sympathy: The Mirror sided with tenants, villeins and serfs against lords, with lords against barons, with barons against the king, with the king against the church. . . . The author’s special concern and constant advocacy are for 71 J. Catto, “Andrew Horne: Law and History in Fourteenth Century England,” in The Writing of History in the Middle Ages, ed. R. H. C. Davis & J. M. Wallace-Hadrill (Oxford UP 1981), 370–84; Seipp, “The Mirror” at 88–91; Helen Cam, “Introduction,” The Eyre of London at xv (Selden Society, Vol. 85, 1968); Maitland, “Introduction,” The Mirror of Justices at xii– xviii. 72 Preface to the Tenth Part of the Reports (1614). 73 S. E. Thorne, “The Equity of a Statute and Heydon’s Case,” Illinois Law Review 31: 202 (1936).

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As a document of the thirteenth century, Seipp cautions, the Mirror should be restored to good standing. To accord it that respect may bring a clearer understanding of the use to which Coke put it. As well as popular history, Coke’s legal history was applied, politicized history. Where he should have known better, he very likely did. But the fact that he had to use his learning to support debating points, all too often may have forced him to equate what was true with what was useful. Near the end of his career, we catch a glimpse of Coke on the floor of the House of Commons. It was the Parliament of 1628, Parliament was debating what would become the Petition of Right, and Coke was calling out that he would give £300 for copies of three legal manuscripts. He had suffered this loss through his own experience of imprisonment without cause shown. He was committed to the Tower and 37 manuscripts were [taken] with all his papers, and he had but 34 restored. Would give 300 l. for the other 3, the first of which was Lambarde’s abbreviate of the records of the Tower; 2, of the ancient order of the Chancery; 2, of the government and laws of Ireland.75

In the middle of a political firefight, Coke was calling for more ammunition. And what was at stake means that he very likely was just as serious and just as furious, in offering £300 for three law-books, as Richard III had been in offering his kingdom for a horse.76 74 Seipp, “The Mirror” at 100, citing Whittaker’s edition of the Mirror, Selden Society at 7:1, 9, 155, 156 (no. 3), 175, 179–80, 184, 199–200. 75 Yale Center for Parliamentary History, Commons Debates 1628 at 3:166 (29 April 1628) (1977). Could the manuscript on the “government and laws of Ireland” have been Hooker’s Order and Usage, which had been originally produced to assist English administrators in running the Irish parliament? 76 The political struggle over the law and history would continue long after Coke left public life. See e.g. Janelle Greenberg, The Radical Face of the Ancient Constitution: The “Laws” of St. Edward in Early Modern England (Cambridge UP 2001); Janelle Greenberg & Laura Marin, “Politics and Memory: Sharnborn’s Case and the Role of the Norman Conquest in Stuart Political Thought,” in Politics and the Political Imagination in Later Stuart Britain: Essays Presented to Lois Green Schwoerer, ed. Howard Nenner (University of Rochester Press 1997), 121–42; Johann P. Sommerville, “History and Theory: The Norman Conquest in Early Stuart Political Thought,” Political Studies 34: 249 (1986); R. Seaberg, “The Norman Conquest and the Common Law: The Levellers and the Argument from Continuity,” Historical Journal 24: 791–806 (1981).

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Fee Simple and Feudum: The Immemorial and the Eternal When Coke defined the word feudum, he read that word as the common lawyers of England read it, as Littleton had read it. Feudum simplex, Littleton had opined, meant tenant in fee simple, “he which had lands or tenements to hold to him and his heirs forever.” Feudum “is the same that inheritance is, and simplex is as much to say, lawful or free. And so feudum simplex signifies a lawful or pure inheritance.”77 Littleton had said nothing about obligations to lords or grants from lords. And despite the civil-law treatises in his library at Holkham, Coke never investigated how the English fee simple, which he knew was called feudum in Domesday, might relate to the feudum of the Continent. Coke knew the feudal law of England very thoroughly, Pocock has noted: “It could be well maintained that he knew all there was to know about feudal law in England except the fact that it was feudal.” For example, he knew that doing homage was distinct from taking an oath of allegiance, although the two commonly went together. He knew that it was legal dogma that all the land in England was held of some lord by some service, and ultimately of the crown, so that the tenant might have a hierarchy of lords above him. . . . . He knew that knight-service was a thing common to many nations, and that in every language but English the word for knight reflected the fact that he was bound to serve on horseback.78

Because Coke ignored the broader, older, fundamental meaning of feudum—Pocock’s argument continues—he could not grasp the history of the common law and the changes it had undergone. (“He is aware that lords no longer exact homage from their tenants—although he deplores this and thinks that they could still do so if they chose—or lead them to battle in the king’s wars.”) And in the end, because Coke could not appreciate that the feudum had been brought to England from the Continent—that this Continental tenure had replaced whatever customary rights to land the Anglo-Saxon peoples had enjoyed—he continued in his belief that English law was immemorial.79 Coke’s limitations as a legal historian have never been more sharply put. At the same time, however, the use to which he turned his historical 77

Co. Litt. 1a (quoting Littleton’s Tenures). Pocock at 66, citing Co. Litt. 65, 74b. 79 Id. at 66–67. 78

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materials casts a revealing sidelight on his success as an advocate and judge. Sir William Holdsworth summed up Coke’s “historical” contribution—which was, as a modernizer. First, he deduced from the scattered and often inconsistent dicta in the Year Books positive rules of law in harmony with the rules laid down by the modern reports; and he did his work so skillfully that later lawyers were content to accept his readings of the Year Books and the Abridgements of the Year Books. Secondly, in like manner, he brought the medieval literature of the common law into line with the modern literature. Glanville, Bracton, Britton and Fleta were made to explain and illustrate Perkins, Fitzherbert, Staunford and Lambarde.80

As a student of rhetoric, Coke had been schooled in applying to the present the lessons of the past. It may have been this training which so successfully allowed him to adapt the medieval common law to new social and commercial realities. A thinker trained to draw insights from the death of Socrates would have had no difficulty urging Elizabethan judges to follow decisions from the reign of Edward III.81 Benjamin Cardozo and Oliver Wendell Holmes, four hundred years later, would draw intellectual support from a theory of evolution. They would believe, sometimes assert, that the law should change with the society it served. Cardozo would actively, subtly shape the law; Holmes would affirm the power of legislators to make new statutory law while he stood by, eloquently declining to interfere. From his own belief in the immemorial operation of the common law, Coke derived an equally enervating and serviceable rationale for action. Cardozo, as Karl Llewellyn put it, masterfully left each innovative opinion “in clean harmony with the authorities—duly explained; in such harmony that on the point in hand it supersedes them.”82 Even in decisions which emphatically articulated a point of law, like Slade’s Case, Coke would describe what others might see as a change in the law as only an emphasis on one aspect of a continuing consort. The law, the artificial reason of the judges, continually was fined and refined. It had al80

Sir William Holdsworth, Some Makers of English Law at 128 (Cambridge UP 1938). Equally, and perhaps less happily, the rhetorician trained to point the moral of every exemplum thereby was rendered almost incapable of explaining a concept without justifying it. It would be revolutionary when John Selden turned things around by noting, “The reason of a thing is not to be enquired after, till you are sure the thing itself be so. We commonly are at What’s the reason of it? before we are sure of the thing.” Yale, “Hale as a Legal Historian” at 3. 82 Karl N. Llewellyn, The Common Law Tradition at 443 (Boston: Little Brown & Co. 1960). 81

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ways been fined and refined. The judges had long deliberated over Slade; but so too had Henry II’s counselors in drafting the writ of novel disseisin; the royal bench “multis vigiliis excogitata et inventa,” Coke would have read in Bracton.83 Conceived in eternity, law past, law present, and law future, all were one. The cases did not march in lines of precedent and sequence; rather, case-law was a pattern of timeless coexisting moments. Decisions on a given point, though they might vary, were different harmonics of the same resonating chord.84 Coke took from Chaucer his motto as a judge, Out of the old fields must come the new corn. This imperative may be read in different ways. What we want to do must be coherent with what we have done before, is one possibility. Or it may be this: To live, to grow, we must rework what we possess. Coke cared about what feudum meant in terms of conveyancing and inheritances. He did not question what it meant in terms of systems. Because he never asked such questions, Coke never came to consider whether the common law might have been formed within a different model of society—but this method had the virtues of its defects. To view the feudum as purely an English fee simple, uncomplicated by foreign or medieval implications, supported a vigorously realistic approach to law. To perceive no necessary connection between holding title and doing homage laid the intellectual groundwork for political compromise and matter-of-fact religious toleration. It allowed an Attorney-General to challenge the loyalty of Roman Catholic subjects while accepting without question their right to their lands. In the end, Coke discussed feudal holdings as matters of custom, enforced by law, without understanding the feudal system—and so it fell to his kinsman, Sir Henry Spelman, to introduce the feudal system to England. Spelman was a better historian. He was by no means as accomplished a lawyer. 83

De Legibus et Consuetudinibus Angliae IV.6, from Sir Travers Twiss’ edition, quoted in W. L. Warren, Henry II at 340 (University of California paperback ed. 1977). 84 Certain phrases here echo suggestions concerning eternity made by T. S. Eliot in “Little Gidding.” The same writer’s “Tradition and the Individual Talent” deserves consultation as a study in the continuing refinement of understanding and practice by any professional community, a matter which the poets have considered as often as the lawyers.

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chapter 10

Anne Coke Stubbes and the Puritan Movement

Virginia Woolf, in her celebrated essay, “A Room of One’s Own,” imagined that William Shakespeare had had a sister. Woolf imagined how frustrated this young woman, Judith Shakespeare, would have been, had she sought to write. She would have been denied an education. She would have been pressured to marry. Had she run off to London, she would have been denied the chance to act or to write for the theatre. With such disappointments, Woolf considered, Judith Shakespeare would have finally died a suicide, and she would have been buried at a crossroads in South London, “where the omnibuses now stop outside the Elephant and Castle.”1 Shakespeare, of course, had no such sister.2 Nor did Sir Walter Ralegh or Sir Francis Bacon. This was, however, not true for Coke, who had a sister whose life worked out a revealing counterpoint to his own, Anne Stubbes, born Anne Coke, of Scottow in the county of Norfolk. Anne Stubbes was apparently Edward Coke’s favorite sister. Her career must from time to time have absorbed him—worried him, too, because of the alarums she raised and the risks she ignored. 1

Virginia Woolf, A Room of One’s Own at 48 (1929) (Harcourt Brace Jovanovich ed. 1981). The playwright did have one sister, Joan. She chose to make her home in Stratford, marry a hatter, rear three sons, and outlive her brother. 2

Anne Coke Stubbes and the Puritan Movement

The Crucial Years, 1569–1572 When Coke was born, in 1552, the English nation was largely Catholic. When he died in 1634, it was firmly Protestant. The turbulence of these disturbances would define the milieu in which Coke worked. So did the ironies and dissonances which emerged from the interplay between continuity and change. During the reign of Edward VI, while the Prayer Book was being rewritten along Calvinist lines, masses continued to be sung for the soul of Henry VIII, defensor fidei. During the reign of Mary Tudor, even as William Cecil privately recorded the number of Protestants burned at Smithfield, he gave honest and capable public service to his queen—which Mary, knowing full well of Cecil’s religious scruples, just as forthrightly accepted. In 1558, Cecil helped bring to the throne a queen whose policies and beliefs were Protestant, yet who preferred unmarried churchmen and kept a crucifix and gold candlesticks in her chapel, outward and visible signs of the balancing game she played so long, so disingenuously, and so well. Throughout the 1560’s, Protestant power was consolidated carefully. From 1558, a loyalty oath required that the queen’s supremacy be acknowledged by all clergymen and certain “lay and temporal officers”: judges and magistrates at first, later lawyers, dons, and schoolteachers. The penalties for repeatedly refusing the oath did not stop short of death. Yet throughout the decade, such laws meant little. Coke himself summarized, not inaccurately, the state of affairs: “[G]enerally all the Papists in this kingdom, not any of them did refuse to come to our church, and yield their formal obedience to the laws established. And thus they all continued, not any one refusing to come to our churches, during the first ten years of her Majesty’s government.”3 Roman Catholics attended Anglican services, following a liturgy which had been revised to encourage them. Roman Catholic gentlemen served as magistrates. They trafficked in monastic lands as readily as any Protestant. Elizabeth’s government, at odds with the Pope and suspicious of all his servants, conscientiously paid the pensions due to former monks and nuns.4 3

Sir Edward Coke, The Lord Coke His Speech and Charge at D1v (1607) (STC 5492). On religious change in Elizabethan England, see the works of Patrick Collinson and Sir John Neale, as well as Michael C. Quéstier, Conversion, Politics and Religion in England 1580–1625 (Cambridge UP 1996) and William Raleigh Trimble, The Catholic Laity in Elizabethan England 1558–1603 (Harvard UP 1964). David Starkey’s Elizabeth: Apprenticeship (London: Chatto & Windus 2000) has emphasized that Elizabeth delayed proposals for radical religious change, not to thwart Protestant partisans, but to avoid frightening entrenched Catholic interests. 4

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With the 1570’s, religious conflicts emerged. The Church of England’s bishops, already priding themselves on the Anglican via media, arrayed themselves on two fronts. They were called upon to continue pressing against Roman Catholic holdouts, while simultaneously resisting a challenge from the Protestant avant-garde, the believers who had begun to be called Puritans. In May 1568, Mary Queen of Scots had surrendered to Elizabeth’s border wardens. Thereafter, the Catholic pretender’s presence within the realm, even as a prisoner, provided a focal point for conspirators. In November 1569 came the rebellion of the Northern Earls, flaring across Yorkshire, religious war on English soil. In these same months, Thomas Howard, Duke of Norfolk, went from being the mightiest subject in the realm to the most notable prisoner in the Tower, a melodramatic dying fall. Finally, on May 15, 1570, the bull Regnans in excelsis was found nailed to the door of Westminster Hall, announcing that the Pope had excommunicated the queen. The government retaliated with laws which forbade the reconciliation of English Catholics to the Roman church. With the queen and the Pope insisting that English Catholics choose between them, the modus vivendi broke down. In 1570 came Thomas Cartwright’s lectures at Cambridge, a Puritan assault on the religious hierarchy. In April 1571 and again in May 1572, Parliaments convened which were vigorously Protestant—“sharp against the Papists,” in Burghley’s words. To stop the Commons from completing the work of the Reformation, it took pressure from the queen; and sensing the strength of Protestant sympathies, Elizabeth let the bishops be blamed for stopping reform, rather than publicly oppose it herself. In June 1572, when action in Parliament had failed, the Puritans turned to the press. There appeared a remarkable, inflammatory book, An Admonition to the Parliament, penned by John Field. The Admonition was “polemic of the highest order,” Patrick Collinson has written, “measured and serious, but with shafts of infectious satire.”5 Field denounced bishops and archbishops as anti-Christian and devilish and contrary to the scriptures. The government jailed Field, but the book sold well. _____ Useful specialized studies include Powel Mills Dawley’s John Whitgift and the English Reformation (New York: Scribner 1954) and Geoffrey de C. Parmitter’s biography of the most notable Elizabethan Catholic lawyer, Edmund Plowden: An Elizabethan Recusant Lawyer, Monograph Series vol. 4, Catholic Record Society (1987). David Knowles discusses the monastic pensions in The Monastic Orders in England: The Tudor Age at 407–8 (Cambridge UP 1959). 5 Collinson, Elizabethan Puritan Movement at 119.

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Within two months, John Whitgift noted anxiously, this attack on the bishops was “in every man’s hand and mouth.”6 At this same moment, in August 1572, word reached London of the massacre of St. Bartholomew’s Day. Few periods have left so fatal an effect as the years from 1569 to 1572. In this short span of time, political events linked Roman Catholicism to conspiracy, treason, and Continental atrocity. So indelible was the association that, four centuries later, comedians could count on laughs from skits about the Spanish Inquisition. In the same short period, English Puritanism had the great good historical fortune to be associated with legislative action and resistance to religious oppression. Significantly, it was in this environment and this short span of years that Edward Coke continued his education. Less than three months after Coke enrolled at Clifford’s Inn, the Parliament of 1571 convened, the only Parliament ever to hand a victory to Puritan gadfly Peter Wentworth.7 Any student at the Inns would have been drawn to a parliament, and Coke enjoyed a link to the politicking at Westminster: his cousin Francis Gawdy was sitting that spring as a member of the Commons. In 1572, Coke would have followed from the Inner Temple the continuing dispute over religion and politics, the debates in Parliament and the furor over John Field’s book. He had left a Cambridge divided by Puritan dissent; he had found a London astir with Puritan agitation.

Puritanism and England The short word Puritan demands and evades definition. Even if it must be considered, as Geoffrey Elton put it, less a movement than a confusion, it sums up a force and attitude which must be dealt with.8 Written with a capital, Puritan has been a term of mockery. Written in lower case, it has described a community which sought a cleaner faith. The spectrum of Puritan belief, of rigorously applied Protestant belief, was broad. There were godly ministers who conformed to what the religious hierarchy required, or politely avoided contentious issues. There were others who preached that England was Babylon and that the corrupt established church was no church at all—the zealots took that 6

Id. at 120. Conrad Russell, “Parliament, the Royal Supremacy, and the Church,” Parliamentary History 19: 27–37, 30 (2000). 8 Sir Geoffrey Elton, The Parliament of England 1559–1581 at 199 (1986). 7

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line, the Brownists and Barrowists. Yet across this spectrum of belief, believer knew believer and those who opposed them knew the beliefs they shared. As a description of the variety of issues on which conflict was joined, the angry outburst of Lucy Hutchinson has never been bettered: If any, out of mere morality and civil honesty, discountenanced the abominations of those days, he was a puritan, however he conformed to their superstitious worship; if any showed favor to honest godly persons, kept them company, relieved them in want, or protected them against violent or unjust oppression, he was a puritan; if any gentleman in his country maintained the good laws of the land, or stood up for any public interest, for good order or government, he was a puritan: in short, all that crossed the views of the needy courtiers, the proud encroaching priests, the thievish projectors, the lewd nobility and gentry—whoever was zealous for God’s glory or worship, could not endure blasphemous oaths, ribald conversation, profane scoffs, sabbath breaking, derision of the word of God, and the like—whoever could endure a sermon, modest habit or conversation, or anything good,—all these were puritans.9

No one has made clearer the scorn which Puritans endured and the scorn which they returned. Puritan means those who preferred sermons to formulaic prayers and keeping the Sabbath to celebrating saints’ days. It means those who preferred Geneva to Rome. It means those who felt the reformation incomplete, so long as the Church of England retained bishops, Roman canon law, and Catholic rites. It includes iconoclasts. It does not exclude those who appreciated the beauty of holiness. Oliver Cromwell loved organ music, and no divine ever worked from a more stunningly beautiful set of illuminated religious texts than William Crashawe. It could describe a bustling officious young man who thought himself virtuous and dared to think of rising above his station—Shakespeare’s Malvolio. It means those who believed, with Augustine, that God knew his own, but who went beyond Augustine in believing that they themselves, even before the harvest, could recognize and separate the wheat from the tares. Between Puritans and Roman Catholics, there was always tension and often hostility. As Sir Francis Knollys put it, Puritans barked loudest against the Roman wolf. Yet the religious friction between Puritanism and Roman Catholicism has often masked a fact of secular significance: 9 Lucy Hutchinson, Memoirs of the Life of Colonel Hutchinson at 80–81 (George Bell ed. 1899). The following defining terms emerge from the work of Patrick Collinson, Christopher Hill, N. L. Jones, and Hugh Trevor-Roper, and the local historians of the English Civil War.

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the resilience of the old faith and the rebelliousness of the new were both manifestations of political disaffection. In times when social relationships were fluid and balances were shifting, as Hugh Trevor-Roper has written, embattled Catholicism and militant Puritanism were rival ideologies, not opposing ideologies. Each offered reinforcement for the disgruntled: for Catholics, the presence of God in the eucharist; for Puritans, the present assurance that one was numbered among the future elect. Anglicanism, in the reign of Elizabeth, was a new religion: its roots seemed shallow . . and to many of her subjects it seemed merely a state-religion, the religion of the Court. Thus those who repudiated the Court could repudiate its religion as readily as those who were admitted to the Court would assume its religion, and, repudiating it, they looked for a ‘purer’ faith appropriate to those who had not the wish, or the means, to compete in that fashionable, expensive, superficial world. Some turned to Romanism [and] it was in the country houses of the provincial gentry or the unfashionable, uncourtly, impecunious peers that the priest-holes were to be found. Others turned to Puritanism, which was by no means a commercial religion. . . but the religion, in England as in Holland, of the backward impoverished gentry, who despised, partly because they could not afford, the expensive frivolities of the Renaissance Court from which they were excluded.10

As insecurity and ambition divided the gentry, shared beliefs and personal alliances often put a religious stamp on political allegiance. To be connected to the Bedingfields might mean having to defend their preference for Roman ceremonies; to be connected to the Stubbeses would mean tolerating their sarcastic Puritan outlook. It was amid the complexity of these allegiances that Edward Coke and Anne Coke played their parts.11 The counties of East Anglia, before the Reformation and after, were notable for the believers they produced. The part of Norfolk which Edward Coke and Anne Coke knew, between their home at Mileham and the North Sea coast, contained what has been called the English holy 10

H. R. Trevor-Roper, Men and Events at 182 (New York: Harper & Brothers 1957). Frequently sharing bloodlines, often facing the same oppression, Puritans and Catholics sometimes combined against establishment. The 1586 election in Norfolk saw just such an alliance of the politically disaffected. In the next generation, the Mayflower would carry out of the Church of England’s jurisdiction not only the Separatists who became the Pilgrim Fathers of Massachusetts, but also the crypto-Catholic soldier Miles Standish. See G. F. Willison, Saints and Strangers: Being the Lives of the Pilgrim Fathers and Their Families (New York: Reynal & Hitchcock 1945). Something of the same can be seen in the friendship of C. S. Lewis and J. R. R. Tolkien and in the support lent to Dom David Knowles by Sir Herbert Butterfield, a Methodist. 11

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land, Walsingham with its cloisters and holy well and the monasteries overlooking the valley of the River Nar.12 Suffolk, where Coke made his home and gave the living of Huntingfield to his nephew Edmund Stubbes, was nicknamed Seely Suffolk, holy Suffolk. In matters of faith, these counties showed a forceful zig-zag continuity. In 1553, it was the gentlemen of East Anglia, cantering with their armor-bearers to Mary Tudor’s standard at Framlingham, who made up the army who put her on the throne. In 1642 and 1643, it was the freeholders and freeholders’ sons of these same counties who joined the cavalry regiments of Cromwell’s Eastern Association—the troopers who won Marston Moor and Naseby and formed the thinking core of the New Model Army. In the parish next to Tittleshall, St. Peter’s Weasenham, this larger story is reflected in the story of the Skippon family, whom Coke knew well. In 1541, a parishioner of St. Peter’s, yeoman Thomas Skippon, made out his will. He left money to the church so that a candle might be kept burning from Good Friday to Easter, “to continue as long as the law will suffer it.” He made one other bequest, to repair the church’s books. These gifts mark Thomas Skippon as a man of literary interests and Roman Catholic sympathies; the Easter vigil candle was a survival of pre-Reformation practice. Such religious and literary aspirations ran in the Skippon line. Thomas Skippon’s great-grandson would be Philip Skippon, Serjeant-Major General of the New Model Army, who in spare hours composed three volumes of devotions, styling himself “the Christian Centurion.” The farmer and the soldier followed different faiths, in different centuries, but each might have seen in the other something of his own profession.13 Where religion was taken so seriously, conflict followed. Norfolk witnessed both a minor rebellion at Walsingham (a reaction to the dissolution of the monasteries) and a rebellion under Robert Kett in 1549—a fullscale insurrection, really a localized civil war, with siegeworks, artillery duels, days of bitter street fighting, and a final pitched battle.14 During the 12

See Richard LeStrange, Monasteries of Norfolk (King’s Lynn: Yates Publications 1973). Carthew, Hundred of Launditch at 3: 438–39. The Skippons appear repeatedly in Coke’s papers; e.g. Calendar of Holkham Estate Records, 4: 29, Doc. 94 (Coke borrows £400 from Robert Skippon of Tittleshall); id. at 4: 124, Doc. 50 (Coke leases lands and sheep-pasture at West Lexham to Luke Skippon) . 14 T. H. Swales, “Opposition to the Suppression of the Norfolk Monasteries: Expressions of Discontent—The Walsingham Conspiracy,” Norfolk Archaeology 33: 254–65 (1962); Julian Cornwell, Revolt of the Peasantry: 1549 (Boston: Routledge & Kegan Paul 1977). Diarmaid MacCulloch has observed how both Catholic and evangelical strategists attempted to win allies in Kett’s camp overlooking Norwich. Thomas Cranmer at 429–38. 13

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Reformation, the see of Norwich, which included both Norfolk and Suffolk, consistently dealt harshly with religious dissent. It was in Norwich, in 1531, that Thomas Bilney, protomartyr of the English Reformation, was put to death. During the Marian persecutions, a total of thirty-two Protestants were burned in the diocese (eighteen in Suffolk and fourteen in Norfolk). This gave Norwich one of the bloodiest records in England.15 Four more heretics were burned under Anglican bishops.16 The last heretic to die at Norwich was Francis Kett, Robert’s grandson. Francis Kett has been claimed as a graduate by the Norwich grammar school and was certainly a scholar of Cambridge University. Coke must have known him, for both men had attended the same schools in the same years. Kett resigned a fellowship at Corpus Christi, returned to Norfolk, and began to preach a peculiar millenarian message. Confusingly, he denied the divinity of Christ, asserted that Christ had suffered only for his own sins, predicted that Christ would return and this time suffer for the sins of the whole world, and called on believers to await these events in Judea. For this Kett was burned at Norwich in January 1589. He leaped and danced as he was led to the stake, and, amid the flames, continued clapping his hands and blessing God’s name, until the smoke silenced him.17

Anne Stubbes, Née Coke Anne Coke was born in 1555, in Mileham, likely in the same house where her brother had been born three years before.18 Among the seven Coke girls who lived, Anne was the closest in age to Edward. In 1604, a year after her brother had been knighted for his accomplishments, Anne 15

A. G. Dickens, The English Reformation at 364–65 (London: Fontana/Collins ed. 1967). Muriel McClendon has argued that the aldermen who controlled Norwich were reluctant to execute dissidents for heresy, allowing executions only when a defendant insisted on martyrdom and a churchman angrily obliged him. McClendon’s thesis seems amply supported insofar as it shows that the men who ruled Norwich were reluctant to spill their fellow-citizens’ blood. However, the secular establishment cooperated fully with the church hierarchy when it came to executing religious dissidents elsewhere in the diocese. 17 Saunders, Norwich Grammar School at 263; DNB. Francis Kett received his B.A. from Corpus Christi in 1569. During Coke’s childhood, Richard Kett—son of Robert, uncle of Francis—was one of the most prominent citizens of Beeston, the village next to Mileham. Louise M. Kett, The Ketts of Norfolk: A Yeoman Family at 81–82, 104–5 (London: Mitchell Hughes and Clarke 1921). 18 Basic biographical information may be found in Coke’s Vade Mecum, Blomefield, and Carthew. 16

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received a more dubious accolade. The bishop of Norwich was drawing up a list of “sectarie recusantes alias Brownists.” To call someone a sectary meant that they were at the radical end of the Protestant spectrum. To say that they were recusants meant that they refused to attend services of the Church of England. The diocese of Norwich was a turbulent one. There were many troublemakers to consider. But on the bishop’s final list, heading the roster of sectary recusants, of Puritan zealots, was “Anne, wife of Frauncis Stubs gent,” of Scottow.19 Robert Coke had meant to treat his daughters well. His will had directed substantial marriage portions for them, and he had left directions for the education of all his children, not drawing a line between his single son and his numerous daughters. Winifred Coke, as well, must have played a leading part in her daughters’ education, rearing them within a receptive family tradition: family portraits to awe a child, colorful psalters to catch the eye. Certainly Anne Coke learned to read her Bible.20 Like her brother, she could attack an issue from a surprising number of angles—arguing from logic, from authority, from scriptural language— and she could close an argument with emotion and eloquence. She wrote a beautiful hand. Her writing never became illegible, not even when she slashed into f ’s and s’s with a debater’s energy. Anne Coke, unlike her brother, did not go to Cambridge. She did, however, marry one of Edward’s classmates from Trinity College, young Francis Stubbes. This seems to have been a suitable match. The Stubbeses were an old family in Norfolk. They were prosperous and respectable, even intellectual. Within recent memory, they had supplied two Members of Parliament and one college head to Cambridge University.21 Francis Stubbes’ sister Alice married a Cambridge don. His brother John 19 “Registrum Vagum of Anthony Harison,” Norf. Rec. Soc. 33: 183 (ed. Thomas F. Barton 1962–63). 20 The village environment was strongly Puritan. The churchwardens of Tittleshall certified in 1552 that, “with consent of the township,” they had sold the old pre-Reformation regalia, two copes, vestments, albs, “and other old clothes,” “the which money we have bestowed upon a pulpit and whiting of the church.” That is, they had whitewashed all murals and prepared for the preaching of the Word. H. B. Walters, “Inventories of Norfolk Church Goods (1552),” Norfolk Archaeology 31: 233–98, 284 (1955). 21 Hasler, House of Commons 1558–1603, “Stubbes”; Jordan, Charities of Rural England at 168; Alumni Cantabrigiensis. Fr. Edmund Stubb of Scottow served as Master of Gonville College from 1504 to 1513; also linked to the family has been Philip Stubbes, Puritan author of The Anatomie of Abuses. See DNB and Blomefield. A pedigree for the Stubbes family is found in Davy’s Suffolk Collections, British Library Add. MS 19150, fo. 261. The information which this supplies is more detailed and accurate for the descendants of Francis and Anne Stubbes than for previous generations of the family.

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practiced law in London and translated French poetry, writing political satire on the side. The Stubbes family also took its religion seriously. Anne’s brother-inlaw, the Cambridge don, was the Reverend Thomas Cartwright.22 John Stubbes, Anne’s other brother-in-law, later made his way, unflinchingly, into even deeper trouble.23 In 1579, Queen Elizabeth was being courted by the last of her suitors, the Duke of Anjou. John Stubbes published a pamphlet arguing against a French marriage for his monarch. He was arrested, convicting of libeling the queen’s prospective husband. As a punishment, the hangman cut off Stubbes’ right hand, the hand with which he had written the offending pamphlet. As the hangman cauterized his bloody wrist, John Stubbes doffed his hat, with his left hand, and offered the crowd another testament of his loyalty: “God save the Queen,” he shouted. Such was the family tradition into which Anne Coke Stubbes had married—learned, devout, and pugnacious. It was a tradition which she did not disgrace.

Whitgift’s Campaign Against the Puritans From September 1583, when John Whitgift became Archbishop of Canterbury, conflict intensified between Puritan preachers and the hierarchy of the Church of England. With the death of the former archbishop, Edmund Grindal, who had favored their “prophesyings,” the Puritans had lost much of their support within the established church. They continued to press for change, to reform the church among Calvinist lines. The movement had taken shape in the form of classes on the Continental model, local councils of ministers who met to oversee the life and activities of churches in their areas. These councils were outside the lines of regular episcopal discipline—hardly coincidentally, considering that their members questioned the authority of bishops. 22 Pearson, Thomas Cartwright and the Elizabethan Puritan Movement, and Porter, Reformation and Reaction in Tudor Cambridge at 174–77. 23 D. N. B., Hasler, House of Commons 1558–1603; and Lloyd E. Berry, “Introduction” to John Stubbs’ “Gaping Gulf,” xx–xlvi (Washington, DC: Folger Shakespeare Library 1963). See also Ilona Bell, “‘Sovereaigne Lord or lordly Lady of this land’: Elizabeth, Stubbs, and the Gaping Gulf,” in Dissing Elizabeth: Negative Representations of Gloriana, ed. Julia M. Walker (Durham, NC: Duke UP 1998). Recently, Natalie Mears has demonstrated how radical were the circles in which John Stubbes moved. “Counsel, Public Debate, and Queenship: John Stubbs’s The Discoverie of a Gaping Gulf, 1579,” Historical Journal 44: 629–50 (2001).

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A classis at Cockfield in Suffolk, just outside Bury St. Edmunds, may have paved the way for that short-lived Puritan commonwealth. Other classes met at Braintree and Dedham in Essex, and at Wisbech in the fens, where local Puritans maintained “a kind of tribunal of their own.”24 There were classes in the Midlands, at Northampton and Daventry and Kettering. In London, at the Inner Temple, the Puritan divine Walter Travers had been appointed afternoon lecturer; he preached for years there, while the lawyers, Coke among them, busily took notes of his sermons.25 Elsewhere in the metropolis, the underground congregations of the Marian years maintained their independent ways. The women of the city were particularly active. When [Bishop] Grindal deprived [George] Barthelot, he was plagued by a delegation of sixty women who would know the reason why. Two or three hundred of these feminine saints turned out to hearten [John] Philpot and [John] Gough with a shower of food and money on their departure for Winchester and confinement. When one of the women was forced to mount the cucking-stool the next January for heckling square-capped Grindal in St. Margaret’s Church with cries of ‘horns,” her companions turned out to honor her as worthy to suffer persecution for righteousness.26

As a Puritan militant, Anne Stubbes was far from unique. Countless Puritan women—those in London were only the most visible—raised their children in the faith. They catechized their servants. They found safe pulpits for ministers who were deprived for nonconformity—or, if wealthy, retained them as chaplains. They paid to have sermons published. And like other martyrs, they died in prison for their faith.27 Over the course of the 1580’s, local church administration would be subsumed in a broader program. Classis constitutions would be approved, a national Book of Discipline would be drafted and circulated, signatures obtained and strength concerted with a view toward taking control of the Church of England from within. This “grand design,” 24

Collinson, Elizabethan Puritan Movement at 208–39, 216. Conyers Read, Lord Burghley and Queen Elizabeth at 298 (New York: Knopf 1960). 26 Knappen, Tudor Puritanism at 211. 27 Richard L. Greaves, “Foundation Builders: The Role of Women in Early English Nonconformity,” in Triumph Over Silence: Women in Protestant History, ed. Richard L. Greaves (Westport, Connecticut: Greenwood Press 1985), 75–92; Diane Willen, “Godly Women in Early Modern England: Puritanism and Gender,” Journal of Ecclesiastical History 43: 561–80 (1992); Dorothy P. Ludlow, “Shaking Patriarchy’s Foundations: Sectarian Women in England 1641–1700,” in Triumph Over Silence: Women in Protestant History, 93–124; Ellen Macek, “The Emergence of a Feminine Spirituality in The Book of Martyrs,” Sixteenth Century Journal 19: 63–80 (1988). 25

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Thomas Fuller commented, was “a discipline in a discipline, presbytery within episcopacy.”28 What the preachers saw as reform, the archbishop saw as subversion. Whitgift and his allies had moved quickly against Bury St. Edmunds. Near the end of 1583, throughout every diocese in the province of Canterbury, Whitgift began requiring that ministers subscribe to three articles of faith. Hundreds of ministers were suspended when they hesitated to sign this pledge. By the end of 1584, political pressure had forced Whitgift to moderate his terms—that is, to tolerate disagreement with the Prayer Book and episcopal authority. Nevertheless, the subscription campaign signaled new years of religious turbulence. As Patrick Collinson has written, dispute became perennial: “the intensified activity of individual diocesans and of the High Commissioners during the next six years ensured that the puritan ministry would rarely lack its local or individual crises.”29 In 1586, when Parliament met again the House of Commons once more supported a Puritan program.30 The queen reacted quickly, jailing Puritan sympathizers in the Commons. Then she threw into action her most eloquent champions. Sir Christopher Hatton, soon to be made Lord Chancellor, delivered a telling attack on the legislation. He warned of the costs which lay hidden within it, the salaries of new presbytery officers. He intimated that such charges might entail the ruin of bishops and cathedral churches—and beyond that, the possible surrender of former monastic land. He subtly associated the proposed new presbyterian order, “a barbarous equality,” with anabaptist turbulence.31 Little more was heard of the intended reforms. When dissent reemerged, the queen suppressed it with a peremptory message. Hatton’s speech had been written by his chaplain, Richard Bancroft, the same rising churchman who had intervened so decisively at Bury St. 28

Collinson, Elizabethan Puritan Movement at 279 (quoting Thomas Fuller). Id. at 243–72, 266. 30 Collinson, Elizabethan Puritan Movement at 303–16; Sir John Neale, Elizabeth I and Her Parliaments 2: 145–65 (New York: St. Martin’s Press 1958). A bill was introduced to abolish categorically all “law, customs, statutes, ordinances, and constitutions” relating to church government. This meant eliminating, as Neale put it, “the whole existing hierarchy, the ecclesiastical courts with their canon law, the royal supremacy, and every relevant act of Parliament, old and new . . . Tabula rasa; stark revolution.” Id. at 149. 31 Neale, Elizabeth I and Her Parliaments at 2: 157–62, 160; Dean, Law-Making and Society at 99–101. Hatton had personal reasons for his stand. Thirteen years before, an unbalanced lawyer on the fringe of the Puritan church militant had stabbed Sir John Hawkins, under the misapprehension that his victim was Hatton. Knappen, Tudor Puritanism at 243. 29

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Edmunds. Bancroft’s influence was very soon known: some manuscript sources refer to Hatton’s speech as Dr. Bancroft’s Discourse. Bancroft had spent the first years of the decade investigating Puritan sects, and he would round out the 1580’s taking action against their leaders. The ablest of Whitgift’s subordinates, he won praise from his archbishop. “He hath been an especial man of his calling,” Whitgift wrote, “in all the stirs which have been made by the factious, against the good of the church, which hath procured him great dislike amongst those, who are that way inclined.”32 Whitgift’s subscription requirements had been a frontal assault against nonconforming ministers. Forced to abandon this, the archbishop shifted to a selective campaign against the Puritan leadership.33 For these men, whom Whitgift and his officers unapologetically called ringleaders, a detailed set of interrogatories were drafted and a particular form of proceeding followed. The Puritan leaders were not asked merely to affirm three articles. Rather, each examinant—that is, the defendant; ex officio proceedings followed the inquisitorial method of the civil law— was pressured to give sworn answers to a questionnaire of twenty-four articles. The defendant was asked to acknowledge the lawfulness of the Prayer Book and the right of the church hierarchy to enforce uniformity. Certain other questions went further, demanding self-incrimination. The text and the tone of the interrogatories assumed that the defendant was guilty, and certain articles shifted harshly from allegation to crossexamination. The twentieth article in the series, for example, asserted that the defendant had “used private conferences and assemblies or had been present at conventicles for the maintenance of your doings herein and for the animating and encouraging of others . . . . Declare the like circumstances and for what intent, cause and consideration.”34 The proceedings in which these questions were asked were ex officio inquiries by the Court of High Commission for Causes Ecclesiastical. 32 Peel, Tracts Ascribed to Richard Bancroft at xix; W. D. J. Cargill Thompson, “A Reconsideration of Richard Bancroft’s Paul’s Cross Sermon,” Journal of Ecclesiastical History 20: 253– 66 (1969). 33 The following discussion of Whitgift’s High Commission campaign and Cawdrey’s Case follows Collinson, Puritan Classical Movement at 403–31; Roland G. Usher, The Rise and Fall of the High Commission at 121–79 (1913); and John Guy, “The Elizabethan Establishment and the Ecclesiastical Polity,” in The Reign of Elizabeth I: Court and Culture in the Last Decade, ed. John Guy (Folger Institute/Cambridge UP 1995), 126–49. 34 Collinson, Puritan Classical Movement at 266–67 (emphasis supplied). Whitgift had moved, when Vice-Chancellor at Cambridge, to employ similar inquisitorial measures in suppressing dissent among the university community. Guy, “The Elizabethan Establishment and the Ecclesiastical Polity” at 147–48.

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The Commissioners who comprised this board, under the Act of Uniformity (1559), were empowered to investigate and correct “all manner of errors, schisms, abuses, offenses, contempts and enormities.” The Commission’s scope was national, independent of individual bishops’ power; its members were named and powers defined by letters patent issued under the Great Seal.35 Ex officio proceedings were those in which these ecclesiastical judges acted on their own authority, on the basis of a defendant’s “common fame,” i.e. the notoriety which a dissident had earned by previously resisting the church hierarchy.36 The oath which the Commission tendered to its examinants, effectively demanding that they testify against themselves, became known as the ex officio oath. The questions asked by the Elizabethan High Commission were not as devious and sinister as those asked in earlier reigns. (Under Henry VIII, inquisitors had sometimes asked prisoners whether a mouse which ate a consecrated wafer thereby consumed the body of Christ. The wrong answer could mean death.) Nonetheless, Whitgift’s interrogatories threatened to make defendants choose between punishment in this world and damnation in the afterlife, depending on whether they incriminated themselves or perjured themselves. The one sure way out of this dilemma, the Puritan leaders found, was to refuse the oath. This was not without its costs. A defendant who refused to swear could be deprived of his benefice for his contumacy. Nonetheless, this penalty did not count as a conviction, and when a defendant refused the oath, this generally brought High Commission proceedings to a halt. Many defendants were willing to accept these adversities.

Cawdrey’s Case Among the ministers against whom the Commissioners proceeded was Robert Cawdrey, a parson in Rutland. Cawdrey was alleged to have 35

Research has shown that the overall Commission was divided into branches, usually one per diocese, with separate groups of commissioners active in each. This same research has tended to confirm that the Commission, as a whole, was as active and intrusive as its opponents claimed. R. H. Helmholz, Roman Canon Law in the Church of England at 46–47 (Cambridge UP 1990). 36 Technically, the proceedings against the Puritan ministers were ex officio mero, in which the judges acted “of their own motion” based on such public reputation. Commissioners could also hear ex officio promoto cases, in which it investigated matters referred to them by other individuals, e.g. churchwardens. Guy, “The Establishment and the Ecclesiastical Polity” at 131.

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denounced the Prayer Book. He denied the charges but refused to take the oath, and was deprived of his living. In 1591, Cawdrey challenged this action by the church court by bringing a trespass action at common law. He sought to remove the conforming minister who had succeeded him. He had clever and determined lawyers—committed Puritans James Morice and Nicholas Fuller, aided by George Croke.37 The jury which heard the case found that if Cawdrey’s deprivation was not warranted by law, then his successor was guilty of trespass. Ultimately, Cawdrey lost. It seemed that most of the Puritan cause had been dragged down by this defeat. The judges dismissed the claim that the High Commission had not followed the letter of the law. Cawdrey had argued that the Statute of Uniformity authorized deprivation only for a second offense, and that the Commission’s judgment had been irregularly made, failing to comply with what the law required; but the judges held that the Commission was not limited by the statute. The Commission’s powers were defined by the royal letters patent and were not to be tested by the text of the statute. This also affirmed that the royal prerogative, in matters of religion, could not be limited by Parliamentary action. The decision appeared to say that the queen’s commonlaw courts would deferentially allow the queen’s ecclesiastical courts to interpret the Reformation statutes, rather than serve as arbiters themselves. It had been suggested that Magna Carta might limit the Commission; the decision appeared to reject such arguments, too. So sweeping was the decision, John Guy has rightly commented, that it settled everything and nothing. Cawdrey’s Case affirmed the royal, imperial sovereignty, but it did not categorically uphold the use of the ex officio oath. It did not address procedures for the use of the oath. Challenges could still be brought if the oath seemed to have been unfairly employed, or if a defendant’s answers might prejudice him in an matter outside church-court jurisdiction—perhaps even if the oath were administered specifically to compel self-incrimination. The oath remained unpopular— it savored of the Spanish Inquisition, Burghley complained to Whitgift. Almost as soon as Cawdrey’s Case was decided, other proceedings be37 5 Co. Rep. 1; Usher, The Rise and Fall of the High Commission at 136–40; Guy, “The Elizabethan Establishment and the Ecclesiastical Polity”; Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution 1300–1629 at 213–27 (Minneapolis: University of Minnesota Press 1948), citing BL Landsdowne MSS 68, no. 45, fo. 106; Conrad Russell, “Parliament, Royal Supremacy and the Church.”

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gan to raise these issues. Prohibitions continued to be sought and often to be granted. So fiercely were these conflicts litigated, now, that church-court officials would later insist that prohibitions had begun to issue only at this time.38 Whatever exactly Cawdrey’s Case had held, such decisions showed, the common law continued to define the church courts’ jurisdiction. Abusing and assaulting a cleric meant a commonlaw action, not a High Commission libel. Nor did a High Commission pursuivant have carte blanche to break open a house in the night to seize an adulteress. The wife of one Stock was excommunicated for adultery before the High Commissioners, whereupon they sent out a pursuivant with letters missive to apprehend her, and bring her before them; by color whereof, he, with the constable, in the night, brake open the house where the woman was. Whether it were justifiable? was the question.—And all the Court held clearly, that it was not; for neither upon a capias excommunicat, nor for any other cause, unless for felony or treason, is it lawful for any to break a house in the night . . . And the statute of 1 Eliz. c.1 which gives the authority to the High Commissioners, does not alter the law in this point: for that ordains only, that their proceedings shall be according to the spiritual law, which is no otherwise than as before is expressed.39

Treatises began to elaborate arguments based on Magna Carta. Like all religious livings, Cawdrey’s benefice had been a freehold. James Morice, Cawdrey’s chief counsel, observed that Chapter 29 of Magna Carta forbade that any freeholder be disseised save by lawful judgment of his peers or per legem terrae—and that the High Commission, rooted in preReformation practice and run by civil-law procedure, was a foreign jurisdiction, no part of the law of the land. It could even be argued—as did Robert Beale, perhaps the Puritans’ most gifted legal theorist—that Chapter 28 of Magna Carta barred the use of the ex officio oath to compel self-incrimination.40 38 Usher, High Commission at 62–65. Among the prohibitions decisions of this period were Man’s Case, Cro. Eliz. 228 (1592); Green v. Penilden, Cro. Eliz. 228 (1592); Stransham v. Cullington, Cro. Eliz. 228 (1592); Love v. Prin, Cro. Eliz. 754 (1600); and Baker v. Rogers, Cro. Eliz. 789 (1601). Action in the Commons frequently supplemented litigation. As early as the Parliament of 1586–87, MP’s of Puritan sympathies had petitioned to abolish the ex officio oath and allow trial of ministers only for “open offense of life or for public maintaining of apparent error in doctrine.” Dean, Law-Making and Society at 106–7. 39 Smith v. Smith, Cro. Eliz. 742 (1600). 40 Faith Thompson, Magna Carta at 213–24.

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Whitgift and Cartwright: 1588–1590 In November 1588, the Church of England began to be walloped and buffeted by a Puritan writer who used not the sermon-writer’s pen, but the stage-clown’s oversized billyclub. The writer’s name remains unknown. He wrote as Martin Marprelate (or Mar-prelate); he gleefully savaged the religious establishment; he was the first great Elizabethan satirist and the England’s first best-selling humorist; and the government sent out men to hunt him down. The establishment never found Martin, although it jailed his printer and fined the gentleman who had sheltered the underground press—Sir Richard Knightley of Fawsley, Coke’s Northamptonshire cousin.41 The pursuivants made further troubling discoveries. Hauled out of ministers’ studies, carefully sorted out by Richard Bancroft, were papers which documented the Puritans’ grand design: cells in the Midlands, cells in East Anglia, clandestine synods at Cambridge and Warwickshire, a radical Book of Discipline already subscribed by dedicated believers. Armed with this evidence, the government redoubled its campaign against nonconforming clergymen.42 As Whitgift’s officials had done before, the churchmen proceeded through use of the ex officio oath, interrogating scores of ministers. Unlicensed preachers were swept out of parishes, beneficed parsons harassed or jailed, outspoken college fellows ejected from their positions, booksellers’ stalls put under surveillance. The campaign had all the hallmarks of an national ideological crusade. Earlier crackdowns had been run by an unreliable set of diocesan courts; this one was run firmly from Westminster and Lambeth, via the Court of High Commission.43 In issuing a proclamation against the Marprelate Tracts, the queen defended her bishops’ rights as her own. Those who sought to subvert the Church, she charged, were no less damaging to the state. They would bring in a monstrous and apparent dangerous innovation within her dominions and countries of all manner [of] ecclesiastical government now in use, 41

Leland Carlson, Martin Marprelate, Gentleman: Master Job Throckmorton Laid Open in His Colors (San Marino, CA: Huntington Library 1981). 42 Collinson, Elizabethan Puritan Movement at 403–31. 43 Almost as rigorously as the churchmen, the Puritan ministers maintained an organized front. They presented a common statement of their objections, supplied uniform and unvarying responses to the High Commissions’ question. They may have been aided by a single set of lawyers, likely organized by Nicholas Fuller.

Anne Coke Stubbes and the Puritan Movement and to the abridging, or rather to the overthrow of her highness’ lawful prerogative allowed by God’s law and established by the laws of the realm.44

By the summer of 1590, it had been decided that nine ministers would face exemplary justice. Of these men, the most prominent was Thomas Cartwright.

Anne Stubbes’ Letter In early 1590, Anne Stubbes wrote to Thomas Cartwright.45 In the past, the two had quarreled. When both were visiting Buxton, Norfolk—it may have been a family gathering—she had refused to pray with him. Then, Anne wrote, she had been asked “by some of the company to come thither where you were, they naming no cause to me wherefore. And when I came you were there ready to reason with me. You used some speech that you were moved the rather by some bond between you and me to use some persuasion with me.”46 Anne implied that she had been patronized. But clearly the personal quarrel had religious roots. Cartwright continued to believe that, whatever its failures, the Church of England was not totally corrupt. He felt that the English church still provided a ministry of the word, and that part of Christian discipline was that the body of believers should obey those who were set over them. He maintained that complex issues of doctrine or practice should be referred to learned ministers, of whom many could still be found within the 44 P. L Hughes & J. F. Larkin, Tudor Royal Proclamations 3: 34 (New Haven, Connecticut: Yale UP 1969). 45 Anne Stubbes’ letter survives, in more than one manuscript collection. The manuscript consulted for this study has been British Library Add. MS 29546, fo. 117r–1117v. With Cartwright’s reply, it was printed by Albert Peel and Leland Carlson. A. Peel & L. Carlson, Cartwrightiana 58–75 (London: Allen & Unwin for the Sir Halley Stewart Trust, 1951). Peel identified the “Anne Stubbes” who authored the letter with John Stubbes’ wife (who was also named Anne, and who was also Cartwright’s sister-in-law). Peel probably knew the Elizabethan Puritan milieu as thoroughly as any other modern scholar, and rather better than most. However, he died with the project incomplete, and he seems not to have noted that Francis Stubbes’ wife bore the same baptismal name. The episcopal authorities specifically identified Anne Stubbes née Coke, the “wife of Frauncis,” as the sectary recusant troublemaker (moreover the second marriage of John Stubbes’ widow to Anthony Stapley had apparently occurred well before 1604). The convictions and personal forcefulness that earned Coke’s sister that notoriety seem of one piece with the belief and energy with which the letter-writer took Cartwright to task. 46 Peel & Carlson, Cartwrightiana at 60.

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Church of England (members of classes and their godly fellow-travelers).47 Cartwright’s suggestions were moderately put. They followed still the plan of reform, not wholesale revolution. Anne Stubbes, by contrast, had little use for either moderation or reform. She reiterated her stand to her brother-in-law: “I said the people of God [were] a peculiar people unto the Lord, and therefore we might not join in any spiritual worship with any that did not obey the voice of Christ.” Between the elect and the established church, no middle ground was tenable: “It must needs be Christ or Antichrist.”48 Forcefully again, Anne Stubbes reiterated her hostility to any hierarchy. You said that we had not the truth because it was not taught by some pastor under Christ. I said it was taught by our savior Christ and his apostles, and believed of us and the Lord be praised comfortably taught one of us to another. . . . You said we are not the church, because none of us had the knowledge of the tongues in which the Scriptures are written, and therefore [we] could not confute the adversary. I said that the Scriptures of God were not like men’s words; for no man knoweth the mind of a man but himself, but we see our own hearts in the word of God, and I think that so [we] of the Church of God have the knowledge of the interpretation of the tongues. But consider your own ministers: the word saith not, some learned men among them, but the minister.49

She had told Cartwright before, she asserted, that “the Church of God according to the ordinance of God did elect ministers by the free choice of the people of God, and that every one in godliness and sobriety was to have his free choice [in the election of ministers] and not to have [it] thrust upon them.” These arguments unsettled Cartwright. In the best traditions of religious controversy, he replied in a letter of his own, which was nearly four times as long. This seems to have changed none of Anne’s beliefs. The more she had considered Cartwright’s arguments, she noted, “the steadfaster I stood in the truth that I had showed you.”50 Twenty long years had passed since Cartwright’s sermons at Cambridge. On many fronts, events had moved beyond him. A generation of 47 Peter Lake, Moderate Puritans and the Elizabethan Church at 77–92 (Cambridge UP 1982). 48 Peel & Carlson, Cartwrightiana at 60–62. 49 Id. at 62. 50 Id. at 62–63.

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change had brought new divisions and unfamiliar alliances. With many others, Cartwright’s sister-in-law Anne had driven past him, theologically or ideologically, past expectations of reform, far down the proud, embittered path toward Separatism. Ironically, the cause of the godly could now expect more from her brother, Nathaniel Bacon’s friend, the rising lawyer who sat at quarter-sessions with the graver sort of the justices.

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When Cartwright wrote to Anne Stubbes, in the summer of 1590, he was daily expecting to be called before the High Commission. Several months later, in the winter of 1591, Cartwright was in the Fleet, held there for refusing to take the ex officio oath. At this juncture, news reached London which must have cheered the aging Puritan leader. Edward Coke, his relation, had struck a blow against the ex officio campaign. Cartwright may have felt that his brother’s brother, the prominent lawyer, only too rarely bore such witness for the faith. Nonetheless, Coke’s action must have been a stand for which Cartwright could have hoped. On matters of religion, Coke’s record reflects a peculiar tension. He was conventional in his own beliefs, and proved sufficiently conformable to hold high government office. At the same time, he remained close to the Puritans of England—whose work he aided, whose phrases he quoted, and who numbered him, with themselves, among the Lord’s servants. The connections which Coke established and worked to strengthen were worldly. The connections which followed him—chafing, imperfect, but ultimately unsnappable—were to the godly. The role which Coke played can be understood only by recalling that he not only became the servant of Queen Elizabeth, but that he remained the brother of Mistress Anne—a woman who rivaled her monarch in strength of will, and who had traveled much further along the narrow, undeviating path of Protestant faith.

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Coke Attacks the Ex Officio Oath In the last days of 1590 or first days of 1591, at the Norfolk quartersessions, with Justice Francis Wyndham, Coke had delivered the charge to the grand jury. What they declared to the grand jury had caused reverberations in London. Wyndham reported to Nathaniel Bacon: You shall understand that within these three or four days my Lord of Canterbury in the presence of the Council . . . did deliver to Her Majesty that her government by her ecclesiastical courts [was] like clean to be overthrown by reason of a charge given by me and Mr. Cooke at sessions, videlicet, that their ordinary could not cite men to appear pro salute anime to answer upon oath, the rumor whereof hath bred a scruple to all the bishops in England [so] that they doubt how to proceed in their [own] courts . . . . With this Her Majesty was greatly grieved with me and said that she would have all the Council call all the judges together before their circuit to command them not to give it any more in charge.1

The Privy Council met, and warned the judges. After the meeting, Lord Hunsdon kept Wyndham behind, for a personal tongue-lashing. The grand jury charge had not been an abstract assertion of constitutional law. Wyndham and Coke had instructed the jurors on abuses for which they could return an indictment—and the jurors had listened; they had returned an indictment. Civil lawyer John Hunt, commissary of the archdeacon of Norwich, had been indicted for initiating an ex officio proceeding, apparently by the very same grand jury which Wyndham and Coke had addressed.2 Wyndham and Coke had raised even broader issues. By denying the authority of “the ordinary,” they had challenged the Anglican hierarchy’s power to question any defendant under the ex officio oath. In church-court practice, “the ordinary” was a presiding church-court officer, often a bishop’s chancellor. However, the term also comprehended all episcopal authorities, even the highest. In this sense, ordinary “properly means a judge who has authority to take cognizance of causes in his own right, and not as the deputy of another. Accordingly, an archbishop is an Ordinary, 1 “Papers of Nathaniel Bacon of Stiffkey,” Norf. Rec. Soc. 53: 118 (Wyndham to Nathaniel Bacon, Feb. 18, 1590–91). 2 Dr. Hunt’s Case, Cro. Eliz. 263 (1591). In early 1591, Hunt was indicted on the grounds that “being commissary of the archdeacon of Norfolk, [he] had caused J. Bodingley to be summoned to appear before him . . . to compel him to take an oath concerning incontinency.” By Michaelmas term, the case had reached the judges. Given the government’s stern warning, it is unlikely that Wyndham gave similar charges to any later grand jury.

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and so is a bishop, and an archdeacon.”3 Under ecclesiastical law, the monarch was the supreme ordinary of the realm—which made the instruction even more subversive. Wyndham and Coke had come very close to saying that the queen lacked power to unleash the High Commission. Such pronouncements were bound to disturb the bishops. The justices at Bury St. Edmunds had harassed a local church official; now a judge of common pleas and a prominent lawyer were denying the church courts’ general ex officio jurisdiction—and this was being done in Norwich, the second city of the realm. The establishment risked losing control; the balance of power in local government was swinging to favor the grave and the godly. Whitgift was right to be alarmed, and Lord Hunsdon, that veteran soldier, was right to treat the matter as mutiny. The believers’ war against the bishops, it seemed, was being won in the courts. So too was the country justices’ war against the deputy-lieutenants. The quarter-sessions meeting at which Dr. Hunt was indicted was very probably the same January 1591 quarter-session meeting at which Sir Arthur Heveningham was bound over to keep the peace—and Dr. Hunt was also a justice of the peace, one of Heveningham’s allies on the county bench. Not only did Hunsdon accuse Wyndham of undermining the Church; he berated him for resisting Heveningham’s exactions as a deputy-lieutenant. Crucially, Whitgift’s campaign of religious repression had been born under the same constellations of political power as the lord-lieutenancy system. Reinforcing the bishops’ control of the Church of England, like putting deputy-lieutenants in charge of the musters, had been a move to tighten control from the center. It is hardly coincidental that Lord Hunsdon—lord-lieutenant for both Norfolk and Suffolk, Heveningham’s most influential friend at court—was also the Archbishop’s most uncompromising ally. Wyndham had asserted that the ordinary could not swear witnesses to give evidence against themselves. Coke would echo this himself, as Attorney-General, with his ruling that the ex officio oath should not be administered to laymen, who might be tempted to perjury.4 Throughout his career as a judge, he would willfully, consistently refuse to give the 3

W. L. Dale, Law of the Parish Church at 9 (London: Butterworths, 2d ed. 1946), citing Jacob’s Law Dictionary (1739). John Cowell’s The Interpreter (1607) is very similar: ordinary “doth signify any judge that hath authority to take knowledge of cases in his own right, as he is a magistrate, and not by deputation.” 4 Of Oaths Before an Ecclesiastical Judge Ex Officio, 12 Co. Rep. 26, 26 (1606).

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Church of England what its bishops sought.5 He would declare, following logically the earlier case-law, that it was murder if a borrower killed a bailiff who was arresting him for debt—and that a homeowner could not resist the sheriff who was breaking in to serve a warrant—but that it was not murder if a homeowner killed a church court officer breaking into his domicile, to make an arrest for adultery.6

Edward Coke and the Religion of Protestants On the surface, few seemed more conventional, in matters of religion, than Edward Coke. “Certain it is, Coke blandly wrote, “that nunquam res humane prosperé succedunt, ubi negliguntur divinae.”7 Like most lawyers, Coke seems to have concerned himself more with the present life than with the life to come. In a long set of private lawsuits, he had both challenged and defended the jurisdiction of church courts.8 He had represented at least one clergyman of the hunting-parson sort, Leonard Some of Stowe in Essex (“a hunter, a gamester, and preacheth not, yet a Master of Arts”).9 Coke’s personal religious beliefs seemed utterly unremarkable. He had prayers recited daily in his household, but he obtained a license allowing him, his second wife, and four members of their household to eat meat on fast days.10 In churches where he owned the advowson, or enjoyed a squire’s influence over the parish, roodscreens and other medieval adornments survived intact.11 Coke seemed exceptional only in being rather better-read than most gentlemen. He had read thoroughly his Bible (for many years, he preferred to quote the Vulgate). 5 See Usher, Rise and Fall of the High Commission, and Roland G. Usher, The Reconstruction of the English Church (London: Appleton, 2 vols. 1910). 6 Contrast Mackalley’s Case, 9 Co. Rep. 65b (1611) (murder to kill bailiff in resisting process) and Semayne’s Case, 5 Co. Rep. 91a (1604) (rightful warrant gives sheriff right to forcibly enter premises), with High Commission, or Allan Ball’s Case, 12 Co. Rep. 49 (1608), and Simpson’s Case, 4 Inst. 333–34 (1600) (killing of pursuivant is manslaughter). 7 Co. Litt. 95b. 8 E.g. The Vicar of Pancras’ Case, Godbolt 50, 63 (1587); Bland v. Maddox, Cro. Eliz. 79 (1587); Woodward and Bugg’s Case, 2 Leon. 29 (1588); Slugge and the Bishop of Llandaff’s Case, 1 Leon. 181 (1589); Botham and Cooper v. Lady Gresham, Cro. Eliz. 136 (1589). 9 Perry v. Soam, Cro. Eliz. 138, 2 Leon. 27 (1588); T. W. Davids, Annals of Nonconformity in Essex at 102 (London: Jackson, Walford & Hodder 1863). 10 Fuller, Worthies of England at 415–16 (Coke “constantly had prayers said in his own house, and charitably relieved the poor with his constant alms”); Christopher Hill, Society and Puritanism in Pre-Revolutionary England at 324 (New York: Schocken Books 1967). For this dispensation, Coke paid 13s. 4d. to the poor-box of his parish. 11 E.g. at Wellingham, Norfolk (next to Tittleshall), and Bramfield, Suffolk (near Huntingfield).

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However, he also quoted readily from the letters of St. Jerome and the homilies of St. John Chrysotom.12 The calmness of this surface is deceptive. The tone of Coke’s remarks, both private and public, reveal a grudge against clerics and prelates—a bias which was strong and persistent if not particularly original. Coke made unfunny Catholic-baiting puns about money left to “monasteries and religious or rather irreligious houses.” He asserted that Edward I had suppressed the stews of London to ensure that the Carmelite friars, who lived next-door to the bordellos, could maintain their vows of chastity. Coke spoke of the clergy finding ways to “creep out” of the mortmain statutes, or “pretending” that they had rights not granted by the Second Statute of Westminster.13 When composing pleasantries, he fell easily into language which his sister would have found familiar—Protestant sabbatarian rhetoric disguised by Latin phrases. He wrote to Robert Cecil once, on a Monday morning, “If I were not persuaded quod bonum est benefacere in Sabbato, I should think that I have broken the whole Sabbath yesterday” on government work, “and now do mean in satisfaction of nature’s due to shrive on my bed.” When laid up by a tertian ague, he labeled himself “God’s prisoner.” How time had been spent “auspice Christo, both at Newgate and the Tower, your Honor can tell.” Coke closed letters by commending his correspondents to the protection of the Almighty—not only personal letters to Nathaniel Bacon, but also official correspondence to the justices of Norfolk.14 He had no personal awe of clerics. At Cookley in Suffolk, he was himself at odds with the parson, who claimed acreage that Coke had occupied—two acres worth 40 shillings yearly, it was alleged.15 Coke praised whatever gave the Church of England a claim to have been Protestant before the Reformation and distrusted those parts of the Church that had remained Catholic afterwards. When discussing the Lollards, he not only condemned the medieval bishops who had suppressed 12

Epigraph to the Preface to the Tenth Part of the Reports; Co. Litt. 4a. Salisbury MS 5: 106 (10 Feb. 1594); 3 Inst. 205; 2 Inst. 361. Not that Coke privileged Puritans with whom he dealt in the course of his government duties. He once wrote to Cecil, after having questioned a prisoner as to “the cause why he turned Puritan,” that the man was “waywardly conceited but utterly unlearned.” BL Add. MS 6177, p. 200 (25 Jan. 1604). 14 Salisbury MS 9: 73–74 (18 Feb. 1599); Salisbury MS 20: 85 (26 Feb. 1608); Salisbury MS 11: 65 (17 Feb. 1601); Letterbook of Sir Bassingborne Gawdy, Entry 128, NRO MS Walsingham (Merton) XVII.1, 410x5, 45r–45v. No doctrine was more characteristic of English Puritanism than its sabbatarianism. Hill, Society and Puritanism at 145–218. 15 “The Chorography of Suffolk,” Suffolk Record Society 19: 13 (ed. Diarmaid MacCulloch 1976). 13

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them, but connected the religious disputes of Lancastrian England to the religious disputes of his own queen’s reign. Certain men called Lollards were indicted for heresy, upon the said statute of 2 Henry IV for these opinions, viz. Quod non est meritorium ad Sanctum Thomam, nec ad Sanctam Mariam de Walsingham peregrinari. 2. Nec imagines crucifixi et aliorum sanctorum adorare. 3. Nulli sacerdoti confiteri nisi foli Deo &c. Which opinions were so far from heresy, as the makers of the statute of 1 Eliz. had great cause to limit what heresy was. . . . For what cause the said heretics were called Lollards you may read in Cawdrey’s Case, and Linwood thereto agreeth. And it is to be observed, that in proceeding against Lollards, the prelates, besides their opinions, did charge them with heinous offences: as conspiracy with multitudes of people, insurrection, rebellion, or some other treason, or great crimes.16

Lord Chancellor Ellesmere would later declare that Coke “throughout all his books, . . . hath as it were purposely labored to derogate much from the rights of the Church, and the dignity of churchmen.”17 Ellesmere was a shrewd critic of Coke—never more so than here. Expressly rejecting the medieval prelates’ claim that the Lollards were heretics, derisively “observing” the other heinous charges which the bishops brought, Coke cast doubt on the very similar charges which Whitgift and Bancroft were bringing against Protestant radicals. Among the books which Coke possessed, four in particular cast light on his religious outlook. Two are the only prayer-books which he described in cataloging his library.18 The first of these he described as “Hore beatissime virginis &c. Mrs. Bedingfield’s prayer book, fairly bound with divers pictures limmed.” The detail suggests respect—also that Coke saw this Catholic volume as a relic of the past generation. The next is “a book of common prayer imprinted 1552 in Edward VI’s time.” The 1552 version of the Prayer Book was Archbishop Cranmer’s final version of the English liturgy; it denied transubstantiation, omitted prayers for the dead, and spoke of tables, not of altars. Of all Anglican prayer-books, the 1552 version was the most uncompromisingly Protestant. A third book which Coke owned is important because it cannot be identified in his collection. This is the Bible which his old master Whitgift gave him, with the suggestion that he now study God’s law instead 16

3 Inst. 41, 43. Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere at 297, quoting “The Lord Chancellor Egerton’s Observations upon the Lord Coke’s Reports.” 18 Holkham Catalogue Nos. 66, 139; see also No. 291. 17

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of man’s. The fourth and last book of note is a copy of Thomas Cartwright’s treatise on the Book of Ecclesiastes. On that book’s title-page, Coke wrote, “Edw: Coke ex dono authoris.”19 Coke recorded the dissident preacher’s gift, and not the archbishop’s. He preserved a Book of Hours but kept at hand, out of all the Prayer Book versions which were available, the version which the most advanced of Protestants would have chosen. From the evidence of Coke’s library, much can be inferred.20 Beyond this, there is the evidence of the company Coke kept: the family bonds he honored, the favors he exchanged. There are the alliances he began making early, with Robert Bozoun and George Clement and Nathaniel Bacon, alliances ended only by death. There is the money he borrowed from Wolstan Dixie, Lord Mayor of London, one of the Puritan merchants who were making their way into the City oligarchy. There are the notes he took of Walter Travers’ sermons. There is his service to Burghley, who distrusted bishops. There is his politically unreliable cousin, Sir Richard Knightley, the man who sheltered Martin Marprelate. There is George Croke, his protégé, one of Robert Cawdrey’s lawyers.21 Was all of this purely coincidental? Coke’s bias against prelates shaded into a preference for Puritans. When retained to argue meum and tuum, on matters of property, or to defend a client against criminal charges, Coke ignored matters of religion. He had represented Englefield and Paget as ardently as he had argued for the Anglican branch of the Shelley family. When state authority was challenged by believers, irrespective of persuasion, or a controversy pitted politicians against churchmen, Coke sided with the state. At Bury St. Edmunds, he had represented William Fleming, but he maintained 19 Holkham Catalogue No. 89; In librum Salomonis qui inscribitur Ecclesiastes homiliae (STC 4710). 20 Even this early, Coke may have owned Dudley Fenner’s Antiquodlibet, Robert Some’s treatise on the ministry, a pamphlet “against signing with the cross” and certain works by John Bale. He would later add the historical chronology of John More, the Apostle of Norwich. Holkham Catalogue Nos. 199, 100, 4, 190, 627, 602. Cartwright’s book on Ecclesiastes was entered to the Stationers’ Register in August 1603, not long before Cartwright’s death. This had been the year of Coke’s greatest worldly triumph—which finally made his fortune and brought him a knighthood. It may be purely coincidental that Cartwright gave him, near year-end, when he himself was failing, a book which warned against vanity and folly. Or perhaps Cartwright, like Whitgift, felt that the realm’s most eminent lawyer might profit from a spiritual admonition. 21 On Croke’s Puritan connections, see Conrad Russell, “Justice Croke and the Hampdens,” Notes & Queries 368 (Oct. 1968).

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personal links to the Drury family, on whom the government relied to restore order. As a judge, he would favor the crown at the church’s expense. However, when a case involved faith rather than land or politics, and he had latitude to choose his side, Coke vaguely but regularly gravitated toward causes which were strongly Protestant. For at least two clients, Coke won prohibitions barring use of the ex officio oath. In Cullier v. Cullier, a client faced an examination in a church court, for alleged incontinency. George Croke recorded succinctly the outcome: “Because nemo tenetur prodere se ipsum in such cases of defamation, but only in causes testamentary and matrimonial, where no discredit can be to the party by his oath, Coke prayed a prohibition, and it was granted.”22 Coke interested himself in cases which involved preachers and patrons of militant conviction, the sort of alliance seen at Bury St. Edmunds. In Specot’s Case, decided in the middle of Whitgift’s antiPuritan campaign, a bishop refused to admit a clergyman to a benefice because the minister had previously been charged as a schismatic. Coke’s case-report emphasized the need to protect patrons’ rights “in these times,” warned against letting bishops judge cases in which they themselves were interested, and declared that charges of misconduct could be considered, by the common-law courts, only if they were clearly alleged. The case warned that the church hierarchy should be made to prove its case against Puritans.23 22 Cullier v. Cullier, Cro. Eliz. 201, 4 Leon. 194, BL Harl. MS 1633, fo. 160 (1590). The other case is Anonymous, BL Add. MS Add. 25,196, fo. 213b, BL Add. MS 1633, fo. 63b (1589). 23 5 Co. Rep. 57a (1590). See also Higginbottom’s Case, 5 Co. Rep. 19b (1593); Dormer’s Case, 5 Co. Rep. 40a (1593); Baynham’s Case, 5 Co. Rep. 36b (1593); Windsor’s Case, 5 Co. Rep. 102a (1599) (all involving advowson and rectories); Jeffrey’s Case, 5 Co. Rep. 64b (1589) (parish tax assessment); and Butler and Goodale’s Case, 6 Co. Rep. 21b (1588) (residence of clergyman). In Gayton’s Case, Owen 12 (1592), Coke intervened in a peculiar case from Little Cressingham, south of Mileham. Gayton, the incumbent, had offered his resignation, contingent on naming two possible successors. Gayton was reportedly a former tanner and innkeeper, and the arrangement seems to have been prepared to benefit one candidate, Miles Mosse, a gifted preacher with intellectual interests (he would later publish a critique of usury). The transfer apparently failed. Coke argued that a living could only be resigned absolutely, but one of the Croke brothers argued for the transfer, and Mosse remained friendly with Coke, which suggests that the litigation was collusive. A. Peel, The Seconde Parte of a Register at 2: 148; Joan Ozark Holmer, “Miles Mosse’s The Arraignment and Conviction of Usurie (1595): A New Source for The Merchant of Venice,” Shakespeare Studies 21: 11–54 (1993); John S. Craig, “‘ The Cambridge Boies’: Thomas Rogers and the ‘Brethren’ in Bury St. Edmunds,” in Belief and Practice in Reformation England: A Tribute to Patrick Collinson, ed. S. Wabuda & C. Litzenberger (Aldershot: Ashgate / St. Andrews Studies in Reformation History 1998), 154–76.

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The Friend of the Godly Thomas Fuller wrote that Coke “freely gave” church livings “to worthy men.”24 Many or most of these were Puritans, ministers who chose to remain within the Church of England, but who left little doubt of their sympathies. The first Puritan parson for whom Coke found a secure living was George Leedes, his brother-in-law, for whom in 1583 Coke bought the right to name the next incumbent of St. Andrew’s in Holt, Norfolk. Leedes’ background was impeccably Puritan. His father had preached for the aldermen of Norwich. He himself, early on, had resisted Bishop Freke’s local campaign for conformity, apparently suffering reverses under which he yielded.25 Leedes’ time at St. Andrew’s, where he served as rector for the next forty-seven years, was a tenure far more secure. He resisted Archbishop Whitgift’s subscription campaign in 1584. He wore no surplice. Nor did he follow other practices which Puritans considered to partake of Roman error: he did not read the prescribed comminations (quarterly condemnations of sinners), nor perambulate the borders of his parish at Rogationtide. Rather than oppose authority, Leeds had learned to sidestep and parry. When presented for not wearing the surplice, Leedes plausibly answered, that “he weareth not the surplice by reason of the sickness which was lately in the town, and the surplice being in the custody of the church wardens whose houses were visited and both died.” Some skillful lawyer, possibly, had taught him how to answer pointed questions.26 Anne Stubbes also shared her brother’s good graces. She seems to have remained his favorite sister. He saw that her son Edmund Stubbes enrolled at Westminster School, where his own sons attended. When it turned out that Edmund wanted to preach, the Chief Justice found him a 24

Fuller, Worthies of England at 416. McClendon, The Quiet Reformation at 215; Browne, History of Congregationalism in Norfolk and Suffolk at 24 (1877); Peel, The Seconde Parte of a Register at 1: 143–47. 26 “Bishop Redman’s Visitation 1597,” Norf. Rec. Soc. 18: 56 (J. F. Williams ed. 1946); Lewis B. Radford, History of Holt at 43–50 (Norwich: Goose & Son 1908). On the perambulation of the parish, see Eamon Duffy, The Stripping of the Altars at 136–39, 452, 568 (New Haven, Connecticut: Yale UP 1992). Similar forms of ecclesiastic disobedience were reported of Rev. Robert Gold, Coke’s longtime friend, at Thorington, Suffolk. “He doth not say service upon the weekdays,” the bishop’s visitors reported. “He hath not read the commination this year. [Said] that he read divine service upon the weekdays as much as any man in the diocese.” At Cookley, Suffolk, where Coke disputed acreage with the parson, the unlicensed school taught by one Mr. Bingley was apparently the school in which the younger Coke children studied their primers. “Bishop Redman’s Visitation,” Norf. Rec. Soc. at 18: 131, 18: 127. 25

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pulpit. His own sons continued to find rectories for their Stubbes cousins, across the rest of the century.27 The Puritan preachers whom Coke aided repaid these debts in their own distinctive coinage. One minister, Francis Bradley, offered to Coke, for his “wonted affection, and zeal toward the word,” a “godly sermon” at Tittleshall. Bradley then denounced, presumably to please and gratify the Queen’s Attorney, books unprofitable and profane, which tendeth much to the hurt of a good mind, being stuffed with many lies and tales, as the book of King Arthur, Sir Tristram, Sir Lancelot, the book of Skogging, Bemis of Southampton, the hundred unsavory tales filled with ribaldry, I say nothing of amorous books, yea, rather venomous books flowing with lasciviousness and uncleanness, and such other dregs of the like stamp, which were fitter for the fire than the press.28

Other preachers asserted that Coke’s actions were the fruits of a justifying and saving faith—most notably Richard Rogers, of Wethersfield in Essex. Among Puritan militants, few had seen harder service. Rogers had petitioned against Whitgift; he had been suspended by the hierarchy; he had helped lead a covert presbyterian classis; he had signed the Book of Discipline; he had faced the High Commission; and he had refused to take the ex officio oath. Rogers may have known Coke as early as the 1560’s; he had been at Christ’s College in Cambridge when Coke was at Trinity. Long decades of personal acquaintance, thus, may lie behind the praise which Rogers offered: God who hath made you a principal member in this great body of our land, both in gifts personal and public, hath justly proportioned a principal place of employment for you above others. Your complements of Nature, Art, Experience, he hath (I doubt not) accomplished with saving grace. Your piety towards God, testified by your reverend hearing his word, and reflecting itself in love upon his ministry: your sage and well managed government of civil affairs; your learning bewrayed by your judicious and assiduous reading of scholars’ books, and favoring their authors: all these argue strongly, that 27 Edmund took over the pulpit in Huntingfield, Suffolk; his son Robert went to Bishop’s Cleeve in Gloucestershire, another living owned by the Coke family. Venn, Alumni Cantabrigiensis; Felicity Griffin, St. Mary’s Church, Huntingfield at 13 (1992); Proceedings of the Suffolk Institute of Archaeology and History 38: 372 (1995). Anne’s descendants, alone of Sir Edward’s nephews, figure in the trust arrangements by which he disposed of the lands he had acquired. Carthew, Hundred of Launditch at 3: 114–20. 28 Francis Bradley, A Godly Sermon Preached Before the Right Worshipful Edward Cooke Esquier, Attorney General unto the Queen’s Most Excellent Majesty, and Others of Worship, in Tittleshall, in Norfolk at 3–4, 35–36 (1600).

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Sir Edward and Mistress Anne though popery, ignorance, injustice and evil manners could well forgo you, yet the Church, the Commonwealth and literature could ill want you. And the same God who hath thus enriched you, hath crowned his gifts in you, so that while you live, your name is blessed, and at the close of this life, you shall not die undesired.29

The point is unmistakable. Rogers numbered Coke among the elect, a man whom the Lord had blessed in this life and at the last day would claim as his own. Near the end of his own public career, Coke reached out to a rising generation of the godly. He took up a protégé, a young Londoner named Roger Williams—Roger Williams of New England, the preacher and merchant who founded Rhode Island, the first civil society to tolerate all forms of religious belief.30 Coke is said to have noticed Williams in St. Sepulchre’s Church, taking shorthand notes of the sermon. He employed the youth as a stenographer in Star Chamber, placed him at the Charterhouse, likely helped him find a scholar’s position at Cambridge. That Coke made this connection with Roger Williams is preternaturally fitting—proof perhaps that God may be considered a novelist of no mean skill. For the youth whom Francis Bacon chose as his personal stenographer and protégé was the young Thomas Hobbes.

Law, Belief, Community, and Authority The struggle between dissident Puritans and conformable Anglicans, to a large extent, was the struggle between those who considered themselves to be the godly, and those who congratulated themselves on being the establishment. Within the Elizabethan state, bishops retained very nearly the same state authority which they had enjoyed in medieval centuries. Holding the power to license preachers and investigate heresy, they held, and exercised, the power to monitor intellectual life. They got to determine who led discussions of religion and politics.31 The bishops’ 29 Richard Rogers, “Epistle Dedicatory,” to A Commentary Upon the Whole Book of Judges (1615). For Rogers’ background and Puritan engagements, see DNB and Collinson, Elizabethan Puritan Movement. 30 See, e.g., John Garrett, Roger Williams: Witness Beyond Christendom at 69–79 (New York: Macmillan 1970). 31 Martin Ingram, “Puritans and the Church Courts 1560–1640,” in The Culture of Elizabethan Puritanism 1560–1700, ed. Christopher Durston & Jacqueline Eales (Basingstoke: Macmillan 1996), 58–91; Stuart B. Babbage, Puritanism and Richard Bancroft at 259–93 (London: Church Historical Society 1962); and Ralph Houlbrook, Church Courts and the People During the English Reformation 1520–1570 (Oxford UP 1979).

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courts inquired into sexual conduct and administered estates, giving them close control over the margins of family life.32 Traditional Christian teaching was that salvation could be obtained only through the church. In this area, as well, certain members of the church hierarchy put a sharp edge on medieval doctrine. It was asserted, for example, that a prayer said at the direction of a priest had exponentially more merit than the same prayer said only at the prompting of the worshiper’s conscience, perhaps ten thousand times as much.33 What the Puritans of England called for—what the Separatists of England desired so fervently that they would emigrate to find it—was a radically different framework for church and community. When they argued for a presbyterian form of church government, this functionally meant, parish control of parish services. On matters of poor relief and social control, they believed that the leaders and elders of the community should make decisions.34 When they spoke in favor of predestination, this reflected the belief that the salvation of each individual soul is a matter settled between that person and God—that salvation is not a matter on which a priesthood mediates between the individual and the Almighty. When Coke defined law, he defined it as the “artificial reason” of the judges.35 This defined law as the professional consensus of the legal community. Coke seems in this quite different from his sister, that angry and articulate woman, who was unwilling to be governed by a hierarchy of learned men. In fact, however, her radicalism was at most one step ahead of his own. Both brother and sister believed that authority was rooted in the agreement of a community—whether the community was a 32 Martin Ingram, Church Courts, Sex, and the Family in England 1570–1640 (Cambridge UP 1987); Hill, Society and Puritanism at 298–381. 33 See MacCulloch, Thomas Cranmer at 143. This doctrine was carried on by powerful elements within the post-Reformation Church of England as well as within the Church of Rome. 34 See Hill, Society and Puritanism at 124–44, 219–97, 420–42. It should not be assumed that this was to replace control by the church with control by the squire. Hassell Smith, in studying the society reflected in the account-books of Nathaniel Bacon’s estates, has reached the tentative conclusion that Bacon did not create the godly commonwealth which his servants and tenants enjoyed, but rather found this community in place when he settled at Stiffkey, and that it flourished around the estates to which Bacon held title. The research of Steve Hindle has illustrated new aspects of the complex political organism that was the English country parish. See e.g. Steve Hindle, “A Sense of Place? Becoming and Belonging in the Rural Parish 1550–1650,” in A. Shepard & P. Worthington, Communities in Early Modern England, 96–114. Middling men could run a parish with brisk self-interest, as the churchwardens of Myddle showed in their constant efforts to prevent vagrants from claiming a place on the parish rolls. Richard Gough, The History of Myddle (1834) (Penguin ed. 1981). 35 Co. Litt. 97b.

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panel of judges ruling on a case, or a congregation interpreting the scriptures or electing a minister. Most significantly, neither saw authority as something which flowed down from above. Anne Stubbes did not believe that grace was conferred on worshipers by the priesthood. Nor did Edward Coke believe that the law was the command of the sovereign. Just as her vision of the church allowed no room for bishops, so his vision of the law assigned little role to kings. Over the first decades of the seventeenth century, the English nation was caught up in the broad cultural shift which would culminate in a Puritan commonwealth. Sir Edward exemplified one cohort of this movement. He led, by example, the Parliamentarians and common lawyers who opened opposition in Westminster. Anne Stubbes, sectary recusant and stout-hearted gentlewoman, stood for the aspirations of the godly. As Mistress Anne’s fellow-believers continued their struggle against the power of church and state, they brought inexorably to light the revolutionary implications of Sir Edward’s jurisprudence.

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chapter 12

Character

The most familiar likeness of Coke is a description penned in a later century, by George Orwell. It portrays an archetype whose features preternaturally resemble Coke’s own. The hanging judge, that evil old man in scarlet robe and horsehair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England.1

The portrait has a caricaturist’s accuracy. But to cut down to the truth in the caricature, to understand Coke and his jurisprudence, it is necessary to close with the man. Jerome Frank, in Law and the Modern Mind, quipped that a judge’s ruling in a given case might partly depend on what the judge had eaten for breakfast. Frank might have put his statement less flippantly—might have said that analytical methodology is a function of personal psychology. A judge’s customary way of addressing issues in the courtroom may relate to psychological factors—training, experience, and personal circumstances—no less than the decisions he or she makes each day in the personal spheres of life. Another portrait of Coke requires consideration. It was painted in 1593, when Coke was forty-one, the year he served as Speaker of the House of Commons. Coke’s hair is dark, his eyes are dark; the gaze is se1

George Orwell, “England My England,” in A Collection of Essays at 252, 261 (1946).

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rious, the jaw is lifted and assertive. His clothes are costly, elegantly patterned sleeves and a carefully starched dinner-plate collar ruff. Coke holds in his right hand what may be a pair of gloves (or perhaps he grasps a money-bag). His hands are slender and long-fingered. They will be so in later portraits, the portraits in which Coke wears a judge’s scarlet robe and ceremonial gold collar, and finally on Nicholas Stone’s fine funerary statue. Coke studies the viewer from a careful middle ground. He seems quietly and powerfully self-assured—knowledgeable but not introspective. He may be sizing up a problem he will quickly handle. Coke’s character was complex because of the consistency with which he showed the defects of his virtues. He had a zeal after learning, a bookishness which shaded into pedantry. He had tremendous energy, which sometimes made him needlessly combative. At bottom, he showed formidable drive, which could be called either determination or ambition. He boasted of his personal integrity, and if his honor was undoubted, so too was his vanity. He considered himself beyond price.

Ambition and Attainment In a few loose paragraphs, John Aubrey caught the essence of the man. The Lord Chief Justice, he wrote, left an estate of eleven thousand pounds per annum. Sir John Danvers, who knew him, told me that he heard one say to him, reflecting on his great scraping of wealth, that his sons would spend his estate faster than he got it; he replied, they cannot take more delight in the spending of it than I did in the getting of it. He showed himself too clownish and bitter in his carriage to Sir Walter Ralegh at his trial, where he says, Thou Traitor, at every word, and thou lyest like a traitor. He [would] play with his case as a cat would with a mouse and be so fulsomely pedantic that a schoolboy would nauseate it. But when he comes to matter of law, all acknowledge him to be admirable . . . . He was of wonderful painstaking, as appears by his writings. He was short-sighted but never used spectacles to his dying day.2

The first quality picked out by Aubrey was Coke’s energy, which was prodigious. He customarily rose at three in the morning.3 He fathered 2

Aubrey, Brief Lives at 162–63. Roger Coke, the Chief Justice’s grandson, wrote that his grandfather regularly went to bed at 9 p.m. and rose at 3 a.m., ringing a bell to summon servants to his locked bed-chamber. So firmly established was this routine that the household refused to knock on Coke’s chamber 3

Character

twelve children. In 1616, when Coke was sixty-four, he investigated the greatest scandal of his day, the poisoning of Sir Thomas Overbury, with unrelenting vigor. He questioned hundreds of witnesses, all in a few months’ time. To see where venue properly lay, he seems to have personally made sightings from the ramparts of the Tower, determining that Overbury’s cell had been technically within the City of London rather than in the county of Middlesex.4 Nor was this trial Coke’s final hurrah. He still had eighteen years remaining: time to make intemperate speeches, ignore medical advice, and ride horseback at the age of eighty. Throughout his career, Coke could always be flattered by the suggestion that his rise owed everything to talent and nothing to birth. Ben Jonson paid the compliment most elegantly: He that should search all glories of the gown, And steps of all raised servants of the crown, He could not find, than thee of all that store Whom Fortune aided less, or virtue more. Such, Coke, were thy beginnings, when thy good In others’ evil best was understood: When, being the stranger’s help, the poor man’s aid, Thy just defenses made the oppressor afraid. Such was thy process, when integrity, And skill in thee, now, grew authority; That clients strove, in question of the laws, More for thy patronage, than for their cause, And that thy strong and manly eloquence Stood up thy nation’s fame, her crown’s defense.5

When Coke began to study law, he was the orphan son of an obscure provincial lawyer. As his practice grew, he was mocked (or hailed) as “the famous outer-barrister of the Inner Temple.”6 When Coke was made Solicitor-General, it must have gratified him that the only objection considered was that, at forty years of age, he might still be too young. There was that quatrain which Coke had penned in his copy of Plowden: By learning he which els hath nought From lowe estat to highe is broughte And oft ye rude which treasures have of Cresus riche, becom a knave. Those lines were at hand whenever he consulted that book. Coke had enjoyed good _____ door even to deliver a royal command. C. W. James at 33, quoting Roger Coke’s Detection of the Court and State of England (1695). 4 3 Inst. 48, 135–36. 5 Ben Jonson, Complete Poems at 191 (New Haven: Yale UP: George Parfitt ed. 1975). 6 Anonymous, Goldsborough 89 (Easter 1588).

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connections, to be sure—his Gawdy cousins, Lady Anne Gresham, the favor of Lord Burghley and Robert Cecil—but other young men had started higher and climbed less visibly (Lord Keeper Bacon’s five sons, for instance). No matter how close his friendships with Nathaniel Bacon and young Sir Nicholas Bacon, Coke likely recalled those lines whenever he dealt with their half-brother Francis. To Francis he could take a haughty tone—could speak, as Francis put it, “as if he had been born Attorney-General.”7 One Whitsunday evening, Coke dined with Sir Roger Wilbraham. The Attorney-General of England spoke volubly and the Solicitor-General of Ireland listened carefully. Coke spoke of cosmography and geography, “un late liver de discoveri de un Hollander ove wonder,” and then the conversation turned to English history. Coke made two remarks: Wolsey a prelate was flagranti crimine taken in fornication by Sir Antony Pagett of the West, and put in the stocks: after being made cardinal, Sir Anthony set up [Wolsey’s] arms on the Middle Temple gate: the cardinal passing in pontificalibus: and spying his own arms, asked who set them up: answer was made the said Mr. Pagett: he smiled saying, he is now well reclaimed: (for where before he set him in disgrace, now he honored him). . . . He said he had seen an old statute not printed of 46 Edw. III wherein it was enacted, no noble nor other should have any more but two dishes at the first course and two at the second: and porage accounted for none.8

These stories have something resentful about them. They suggest that prelates are lustful and that noblemen are gluttons, and that the law may rightly humble both sorts of reprobates. There was something a Puritan would recognize in Coke, something in the zeal and the inverse snobbery. After he had prosecuted the Earl of Essex and the Earl of Southampton in 1601, and Sir Walter Ralegh in 1603, and the Earl and Countess of Somerset in 1616, and engineered Francis Bacon’s disgrace in 1621, a wag made a quip at Coke’s expense: that he would die if he could not help to ruin a great man once every seven years.9 And yet, whatever its subtext, the anecdote about Wolsey has a different tone. It suggests that time and forbearance may bring justification and honor, another attitude 7

Conyers Read, Lord Burghley and Queen Elizabeth at 496–97; James Spedding, ed., The Letters and the Life of Sir Francis Bacon at 3: 3 (London: Longmans 1861–74). 8 The Journal of Sir Roger Wilbraham, 10 Camden Miscellany at 18 (ed. Harold Spencer Scott 1902). 9 Sir Edward Conway to Dudley Carleton, 18 April 1624, quoted in Robert E. Ruigh, The Parliament of 1624: Politics and Foreign Policy 319 (Harvard Historical Studies No. 87, Harvard UP 1971).

Character

that a Puritan would have understood. Prudens qui patiens, Coke had made his motto, following Burghley: it is prudent to be patient.

The Man of Property Most of what Coke earned must have gone into land, the estates that would eventually yield eleven thousand pounds per annum. As early as October 1576, two years before he was called to the bar, he bought a small property in the area where he had been reared, Tittleshall Austens, a messuage and ten acres. The price was modest, a mere £5. “And this was the first purchase of land that the said Edward Coke made,” the young man recorded on a copy of the deed.10 Four centuries later, much of the land that Coke bought remains in his descendants’ hands. His purchases supplied the acreage whose cultivation was improved by Thomas Coke, honored as “Coke of Norfolk,” and remains the patrimony of the Earls of Leicester. In Suffolk Coke built up a cluster of holdings around Huntingfield and Thorington. In northwest Norfolk he built up what would be the Coke family’s “Grand Estate.” His mother had left to him the rectory at Belaugh and his father’s lands at Mileham. In June 1590 Coke added to these what had been the village of Godwick. Around Mileham and Tittleshall—along the roads which ran west and east and north, at Wellingham and Weasenham and South Creake, Lexham and Kempston and Kypton and finally Castle Acre—his purchases very nearly made a checkerboard of the landscape. 10 C. W. James at 9; Carthew, Hundred of Launditch at 3: 106 (purchase made 2 Oct. 1576). James counted 99 “separate purchases” in Coke’s Great Book of Conveyances (Holkham Catalogue No. 342, Holkham MS 764) and listed the most important ones, “manors, lands, tenements and advowsons,” in an appendix to his monograph on the Coke family. Id. at 304–6. The present writer has counted in the Great Book of Conveyances 105 individual properties. G. A. Carthew, whose Hundred of Launditch reprints a report of a 1635 inquest into the estate of the Lord Chief Justice, concluded that Coke died possessed of more than sixty manors, extending into nearly a hundred parishes. Most of Coke’s possessions were in East Anglia. Carthew, Hundred of Launditch at 3: 106, 114. Other holdings, scattered across England, in Buckinghamshire (including Coke’s mansion at Stoke Poges), Dorset, Somerset, and Derbyshire, mostly relate to the Jacobean period and were generally acquired in connection with Coke’s second wife, Elizabeth Hatton, or to provide appanages for younger sons. By any count, Coke’s estates bear out his reputation as a careful but active investor in land, essentially pursuing a buy-and-hold strategy. On some occasions Coke also seems to have acted as a straw man for other purchasers—for example, with regard to Sir Ranulph Crewe’s house at Crewe Hall in Cheshire. C. W. James at 51. Samuel Thorne stated, without citation, that “Coke owned at his death ninety-nine manors, but twice that number had passed through his hands.” “The Tudor Social Transformation and Legal Change,” Essays in English Legal History at 200 (Hambledon Press 1985). The other 200 manors referred to may represent similar straw-man transactions.

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The crown granted him lands at Massingham and at North Elmham he bought out Lord Cromwell. The pattern continued northward along the River Burn, to the salt marshes and mud-flats of the North Sea coast. Coke eyed the lands of the Armiger and Wheatley families, near Holkham, surveying the broad acres which would be acquired by the bridegroom of a little girl, an heiress, Muriel Wheatley. He looked over his younger sons, drew up a pedigree for little Muriel, and began to bide his time. Prudens qui patiens.11 At Godwick, Coke built a mansion. The village of Godwick had always been small, and by Coke’s day, only eight or nine houses were left. Godwick Hall, as Coke built it, was of two storeys, with the rectilinear cross-hatched mullion windows and triangular gable-ends of its period. If undistinguished, it was handsome and solidly built; it lasted long enough for a Victorian gentleman to photograph it before a farmer of the 1960’s knocked it down. The house looked north, across broad fields running downhill to the River Wensum. A map of 1596, which Coke must have commissioned, shows that it had a walled courtyard on its north side, and was flanked with gardens, perhaps an orchard. On the east, wooded acres formed a windbreak.12 Coke enclosed some of the village lands and laid the foundations of his barn directly athwart what had been the village main street. The barn, like the hall, was built of brick. Windows can be seen in its western wall, the one visible from the house—possibly built into the walls as decorative brickwork, never meant for use, but mullioned and pedimented like those of the mansion. The barn remains in use today, while Godwick Hall can be identified only by careful walkers who pick out the hummocks which mark its overgrown foundations.13 11 C. W. James at 93; Blomefield at 9: 241, see Read’s Case, 6 Co. Rep. 24a (1600). This tested a claim by Read (alleging title deriving from Coke’s patroness Lady Gresham) against a claim by the Armiger family, traced through Muriel’s grandfather William Wheatley. This may have been a collusive action brought to clarify title, or possibly marks a reconnaisance-inforce by Coke of the legal terrain. 12 Alan Davison, Deserted Villages in Norfolk at 69 (Norfolk Origins Series No. 5, 1996); Neil Batcock, “The Ruined and Disused Churches of Norfolk,” East Anglian Archaeology Report 51: 136–38 (1991); photograph courtesy of Nicholas Hills. A series of maps of the Tittleshall area, done ca. 1596, are preserved at the Bodleian Library. Godwick is considered one of the best-preserved lost villages of England and remains open to the public in daylight during the summer months. 13 Architect Nicholas Hills, who has served as churchwarden for St. Mary’s Church in Tittleshall, hypothesizes that the barn may have been planned and begun as a detached wing of the mansion whose construction had been undertaken by the previous owner of the Godwick property, and converted by Coke to a farm building only after work was advanced—a change

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To enclose lands, to build a mansion, to site a barn across a village street—these acts asserted a proprietor’s authority. To this, Coke added a layer of feudal power. He obtained personal franchises, liberties, covering his estates in Norfolk and his lands in the hundred of Blything, Suffolk. Within these liberties, Coke enjoyed most of the privileges of a feudal lord. A chorographer listed the rights Coke had acquired when he purchased his estate at Thornham from the crown: It keeps court baron and leet, hath wrack at sea, royal fish, goods cast on shore. Is free of the Archdeacon’s visitation. The sheriff of the shire executeth no writs in the town or liberty of it. The clerk of the market hath nought to do therein. The fine is arbitrable. The custom is that tenants which find on the shore cast up as wrack or get any royal fish etc. are to have the one half and the lord of the manor the other.14

Most important, practically speaking, was the lord’s right to have legal process served and enforced by his bailiffs and not by the sheriff ’s men.15 This gave Coke substantial control, at the point of actual enforcement, regarding any matter over which his neighbors went to law. These franchises also brought in revenue, because the fees and court costs, within Coke’s liberties, went to Coke and his bailiffs, and not to the crown and its officers.16 _____ of plans revealed at roof-level on the barn, where several roof trusses are placed so that they extend over and cover the windows. A similar detached wing survives at Blickling Hall in Norfolk, and the Godwick’s barn roof structure generally resembles that in a barn of the same era owned by the Paston family, Coke’s in-laws, suggesting that Coke might have employed the same carpenters. 14 Christobel M. Hood, The Chorography of Norfolk: An Historicall and Chorographicall Description of Norffolck at 163 (Norwich: Jarrold & Sons 1938). 15 In December 1601, Coke wrote to his cousin Bassingborne Gawdy, sheriff of Norfolk, asking that Gawdy issue “my servant William Thurbye gent bailiff of my liberty . . . your general warrant” to administer “all processes and writs to be executed within my said liberty in the said county during this your year of office (which hath been always used by all high sheriffs).” Letterbook of Bassingborne Gawdy, NRO MS Walsingham (Martin) XVII/I 410x5, Entry 257 (104v); Pembroke College MS, volume of letters presented by Rev. Charles Parkin, fo. 26. The royal grant of the liberty covering Blything Hundred in Suffolk appears to have given Coke a similar territorial franchise (goods and chattels of felons, fines, waifs, and estrays). W. A. Copinger, Manors of Suffolk at 2: 1 (London: T. F. Unwin 1908). 16 Executing writs brought “perquisites and pickings . . . . To compel attendance in court, payment of a debt, or rendering of a service, the normal initial proceeding was to distrain the cattle of the recalcitrant party, or, if they were poor, their oats, their pots or their pans. For each beast so impounded, the litigant paid a fixed rate—primarily for its food—for each day that the beast was in the lord’s close or the sheriff’s pound.” Helen Cam, Liberties and Communities in Medieval England at 193 (Merlin Press 1963). See also D. R. Hainsworth, Stewards, Lords and People: The Estate Steward and His World in Later Stuart England at 194–97 (Cambridge UP 1992).

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Coke could also claim—it was another feudal privilege—the personal property of any person who committed suicide within the bounds of his liberty. On this point he could be brutally blunt. In May 1612 he wrote to the brother of a local gentleman, Thomas Browne, who had been discovered drowned at Porland—“which is within my liberty,” he wasted no time in stating. The coroner had found that Browne had come to his death by misfortune. Coke believed, to the contrary, that Browne had willfully drowned himself, and that he accordingly had the rights to Browne’s goods. He warned Browne’s brother: I have therefore thought good hereby to let you know, that unless I may have some present composition for his goods which being of a great value (as I informed) are come to your family, I do intend to have a new inquisition, not doubting but upon some pregnant proofs as shall be given to the jury (which it may be at the former inquisition were concealed) they will find him according to the truth of the matter a felon of himself.17

With no trace of irony, he signed: Your loving Friend, Edw Coke. To buy Godwick cost Coke £3,600. Two estates in Suffolk, Thorington Hall and Thorington Wimples, cost him another £3,600 between them. No matter how much Coke earned as a lawyer, no matter what profits he earned on the land he bought, such purchases put heavy pressure on his finances. Throughout the 1580’s, one observer noted, Coke could “not dispend more than £100 a year.”18 Some of the difference he made up by borrowing—for instance, that £500 from Sir Wolstan Dixie.19 Other assistance, with fewer questions asked, came from the Cecil family. Lord Burghley was Master of the Court of Wards. He oversaw the crown’s feudal right to administer the estates and arrange marriages for the heirs of those who died holding property by knight-service. These feudal incidents were valuable, and a traffic arose in wardships. Wardships were sought by speculators for the opportunities they offered to profit from other subjects’ lands—often bought back by relatives, to keep custody of the children and retain control of family property.20 17

NRO AYL 16 (Aylsham Bundle 16), Coke to Browne, from Serjeant’s Inn, 27 May 1612. Sir John Neale, The Elizabethan House of Commons at 294 (quoting Thomas Wilson). 19 Calendar of Holkham Estate Records at 1: 203, Doc. 388a. Similarly, in 1595, shortly after his rise to Attorney-General, Coke repaid a debt to an Inner Temple colleague, William Ferman, £450 out of a total debt of £650. Id. at 1: 209, Doc. 419. 20 See Joel Hurstfield, The Queen’s Wards: Wardship and Marriage Under Elizabeth I (London: Longmans, Green & Co. 1958). 18

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Granting wardships was a form of patronage which Burghley dispensed, and Coke was one of the allies to whom he dealt such favors. In 1597, the year before Burghley died, he allowed Coke to purchase the wardship of Walter Aston. Coke paid £1,000 to Burghley and £300 to the crown for Aston’s wardship, then immediately sold the wardship back to the ward—i.e., sold back to Aston’s family the right to manage the estates which the young man was inheriting. For this turn-around transaction, Coke received £4,000. This means, as Joel Hurstfield observed, that the queen received less than a quarter of the purchase price which Coke paid, and that she received only one-thirteenth of the resale price which Coke received.21

Vanitas With Coke’s ambition went a notable personal vanity. His reluctance to wear glasses betrays that foible. When he rode south to London, he not only carried a purse and a rapier; he wore a diamond ring. Thomas Fuller made the point with gentle satire. “The jewel of [Coke’s] mind,” he wrote, “was put into a fair case, a beautiful body, with a comely countenance; a case which he did wipe and keep clean, delighting in good clothes well worn, and being wont to say ‘that the outward neatness of our bodies might be a monitor of purity to our souls.’”22 In middle life, Coke was becoming pompous. As a boy he had shown some frivolity. In an early schoolbook, a caricature survives, Publius Ovidius Naso, the author of the Metamorphoses, drawn as a long-nosed poet and labeled “Hec est Nasonis imago.”23 As a student at the Inns, Coke had inscribed his law-books Ubi uber ibi tuber. That was witty, at least in Latin; in English the saying went There is no rose without a thorn.24 The earnest young lawyer who wrote that in his books already pretended to the gravity of a judge. From Lord Burghley, as well as a stoic’s motto, Coke had appropriated a self-conscious sententiousness. He began to 21 Id. at 266–67, 274–75; Bernard H. Newdigate, Michael Drayton and His Circle at 146–47 (Oxford: Shakespeare Head / B. Blackwell 1941). Conflicts arose over Aston’s marriage, and the young man paid Coke £4,000 for taking a bride of his own choosing. 22 Fuller, Worthies of England at 417. 23 Holkham Catalogue at xvii. 24 The quotation is from the Florida of Apuleius, a rhetorician and sophist of the second century a.d., as translated by H. E. Butler, in The Apologia and Florida of Apuleius of Madaura (1909). The Florida, as its title implies, is a collection of orations which Coke must have studied during his school days.

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compile pithy comments for his children’s instruction. Beware of three sins which never go unpunished in either the party or his posterity, viz. bribery, simony, and usury, he wrote. When you give, give but little, but give often where you are to give. Keep yourself within your circle and out of debt, for old divines said that debt went before deadly sin. The list continued, far longer than Polonius’ farewell advice to Laertes. (Polonius was a fictional reflection of Burghley, just as Coke was an acolyte patterning himself on his master.) Your own wisdom and discretion is your surest friend. Hold all innovations and new ways suspicious. The best assurance you can have is to buy lands of an honest man.25 The letter of advice to one’s children was a distinct genre of Elizabethan literature. The Duke of Norfolk had written such a letter to his sons before his execution; Ralegh would do the same in similar circumstances. The letter was a species of self-portrait—and in this light, Coke’s comments may be particularly revealing. Beware of excess in eating and drinking, and use a diet under your appetite. If you will keep your estate and provide for your children, spend at most but two thirds of your revenue, and lay up yearly a third party for provisions and preferment for your children. Name none of your children by a surname or other new-devised name . . . seldom have I known new-named men fortunate. Never works a woman more woe than she will work herself if she hath her own will, good women will be directed by their good friends. Also to be noted is a contretemps into which Coke stumbled on the assize circuit. In July 1613, while in Cambridge with Justice Daniel. Coming to St. Mary’s Church to sermon upon the Sunday in the forenoon . . . and coming to sit in the mayor his seat, where he did then sit, the mayor offered them very kindly to sit in the seat under him, unto which the Lord Coke a little stayed, as seeming his place was supreme above the mayor; but in the end both the justices did sit in the same seat, under the mayor; and Mr. Justice Daniel at his going away commended the mayor for his courage therein, allowing it to be right in him.26

The actors’ foibles portrayed in A Midsummer Night’s Dream are often recognized in modern players. Coke’s mannerisms suggest that the vanity of the courtroom lawyer has roots at least as ancient. 25

C. W. James at 323–24. BL Add. MS 5821, folio 219 (folio 223 in pencil pagination). In glossing a phrase in the Second Statute of Westminster, ad infamiam suam, Coke commented, “For a man’s fame is above all things to be repaired.” He followed with a quotation from Cato: Omnia si perdas, famam servare memento: Que semel amissa, postea nullus eris. 2 Inst. 386. 26

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Another quality counterpointed the vanity: Coke cried easily and often. He broke into tears when Elizabeth named him Solicitor-General, broke into tears again two years later when she named him AttorneyGeneral. He wept when he sentenced defendants to death. He wept when he was removed from the Court of Common Pleas and moved to the Court of King’s Bench. He wept when his son Robert married Theophila Berkeley in August 1613. He wept when his son Clement was jailed by the House of Commons in 1621. He wept in June 1628 when King Charles sent back an evasive answer to the Commons’ Petition of Right. Near the end of his long career, when the king’s men came to his manor-house at Stoke, Coke wept as his manuscripts were carted away.27 Quaintly, in his own day, his tears may have marked Coke as an Englishman of the old school. As C. S. Lewis observed, medieval Englishmen had unabashedly wept (Malory’s knights, for instance); male characters in Shakespeare and Milton did so only apologetically. “The change about tears is only symptomatic of something larger,” Lewis wrote, an emotional reflection of the modern world’s break with the medieval realm.28 The modern inhibition against shedding tears may parallel the philosopher’s desire to separate reason from faith and the metaphysician’s attempt to ascribe no spiritual dimension to the physical world. However easily Coke functioned in the modern world, his emotions reached back into the earlier era.

Accomplishment and Arrogance By learning he whiche els hath nought. If ambition drove Coke, his intellect was the mainspring. His bookishness stands out, even in an age renowned for the pedantry of its lawyers and the collections of its antiquaries. Coke claimed that he did not trust in memory—that he preferred the written record—but his own capacity to retain information was enor27 Baker, LPCL at 202–3; C. D. Bowen at 341, 444, 500; C. W. James at 325; William S. Powell, John Pory 1572–1636: The Life and Letters of a Man of Many Parts 249 (Chapel Hill: UNC Press 1977) (Pory to Sir John Scudamore, 21 April 1632) (PRO C.115/M.35/8400). Coke’s Latin epitaph in St. Mary’s Church in Tittleshall asserts: “Eximie misericors. Charior erat huic reus quam sibi (miraculi instar est) siccoculus saepe audijt sententiam in se prolatam numquam hic nisi madidoculus protulit.” (Supremely compassionate; the prisoner at the bar was ever dearer to him than himself (which is a very marvel), for often he, the culprit, listened dry-eyed as sentence was passed upon him, yet never did this man pronounce it save with tears.) 28 C. S. Lewis, English Literature in the Sixteenth Century Excluding Drama at 52.

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mous. This shows in his eleven volumes of case reports, the unwieldy sprawl of his commentary on Littleton, and the massive scope of his Book of Entries. “It seems impossible that Coke could have done all this work in person,” John Baker has marveled, “but, with or without clerical assistance, he clearly had a command of the contents of all the plea rolls of the reign of Elizabeth I and the first fourteen years of James I.” Coke’s personal notebooks—which he maintained for decades, expanding and updating and crossing out and writing over, until they numbered more than 1200 tightly written pages—were the most voluminous collection of judicial decisions since the medieval Year Books.29 In Elizabethan days, a college library might be praised if it held three hundred volumes. Coke’s library at Holkham held more than four times that many.30 Among these were nearly 200 lawbooks, scores of chronicles and histories, and nearly 300 works of divinity (Bibles, psalters, tracts, polemics and counterblasts, the detritus of burned-out controversy). The varied schools of political theory were represented: on one shelf, apparently, Bodin and Machiavelli and Cicero sat side by side. Beyond that, the collection stretched far afield. An abstract from Domesday Book. The speeches of Lord Keeper Nicholas Bacon, in manuscript. A biography of Columbus, printed at Venice in 1571. The tale of Troy. A pamphlet on Virginia. Spencer and Dante, Chaucer, the Huguenot poet Du Bartas, and Joshua Sylvester, leading light and popular author of the Stuart age.31 “Approved histories are necessary for a jurisconsult,” Coke wrote, “for he that hath read them seems to have lived in those former ages.”32 Coke ventured seriously what he had learned from his own study of history. With somewhat of an academic eye, he asserted that common-law pleading had reached its highest level of refinement two hundred years before his own times, in the days of Edward III.33 Even more of a golden age, he urged, had been the years before 1285, when the statute De Donis Conditionalibus had been enacted. In those days, when all estates had been fee simple, “then were purchasers sure of their purchases, farmers of 29 Baker, LPCL at 193, 195. “Nothing is or can be so fixed in mind, or fastened in memory,” Coke wrote, “but in short is or may be loosened out of the one, and by little and little quite lost out of the other.” Preface to the First Part of the Reports (1600). 30 Holkham Catalogue at xi–xii. 31 Holkham Catalogue, passim. 32 Id. at 42. 33 Co. Litt. 303a; Preface to the Tenth Part of the Reports (1614).

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their leases, creditors of their debts, the king and lords had their escheats, forfeitures, wardships, and other profits of their seigneuries.”34 With this prodigious memory went a defect; Coke did not forget when his learning had been overlooked by others who knew less. In 1584, the judges of King’s Bench were unimpressed when he cited a case from his favorite era: Coke contra: The replication is good enough; for he hath by nient dedire confessed, that Frances and Henry were seised and he had a good title by the copy, before their title: and such a confession is good. 4 Edw. 3. Replication accordingly.—But the judges said, that in the time of Edward the Third the Judges had no great regard to pleading.35

Possibly, the rising lawyer’s pride was bruised. Equally possibly, Coke knew that the years of Edward III were a time when the principles of common-law pleading had in fact been refined and proven. Certainly Coke bided his time, full thirty years, until he could get the final word in print. When the opportunity came at last, his eloquence flowed unrestrained: “In the reign of Edward III the law was of the greatest perfection that it ever was . . . and pleading (the greatest honor and ornament of the law) grew in that reign of that king to that excellency.”36 Appearing in print, in Latin and English, issued by the Chief Justice of Common Pleas, this pronouncement trumped any stray remarks which lesser judges might have made. Coke had scholarly failings, too—shortcomings noted by a remarkable character study. In 1617, after Coke’s dismissal from the bench, when his fortunes seemed lowest, there appeared in circulation an open letter of condolence and critique. The letter was anonymous. The writer was a Puritan. He was an educated man, well-read, with a pastor’s insight and a prophet’s bluntness. Before offering words of comfort, he laid bare Coke’s flaws. In discourse you delight to speak too much, not to hear other men . . . . You, having a large and fruitful mind, should not so much labor what to speak, as to find what to leave unspoken; rich soils are often to be weeded. Secondly, you cloy your auditory when you would be observed; speech must be either sweet or short. Thirdly, you converse with books, not men, and have no excellent choice 34

Co. Litt. 19b; see Sir Anthony Mildmay’s Case, 6 Co. Rep. 40a, 40a–40b (1605). Herring v. Blacklow, Cro. Eliz. 29 (1584). 36 Preface to the Eighth Part of the Reports (1611). 35

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Character with men, who are the best books; for a man of action and employment you seldom converse with, and then but with your underlings; not freely, but as a schoolmaster with his scholars, ever to teach, never to learn: but if sometimes you would in your familiar discourse hear others, and make election of such as know what they speak, you should know many of these tales you tell to be but ordinary; and many other things, which you delight to repeat and serve in for novelties, to be but stale.37

Coke talked too much, that is, and he thought too highly of his own opinions. He isolated himself by preferring underlings to equals. These traits remain the pathologies of intellect, still to be borne with at the academic conference and the bar association dinner. Coke’s great strengths, as a pleader, were stentorian volume and phenomenal energy. If opposing counsel raised eight points, Coke could be counted on to meet them point by point, stop-thrust and parry and slashing riposte.38 In June 1606, opening the assizes in Northampton, he denounced the enemies of his country for two and a half hours.39 To read Coke’s arguments is to be reminded that Elizabethan fencingmasters considered the halberd a deadlier weapon than the rapier. Coke was not a man to yield ground, even if his position were untenable. The sheer weight of his rhetoric could be punishing and it does not seem that he was ever beaten down by an opponent who swung back. But just as the sweep of the halberd could throw the halberdier off-balance, so Coke’s forcefulness left him vulnerable to shrewdly aimed counter-blows. Coke’s anonymous critic took him to task for this: In your pleadings you were wont to exult over misery, and to inveigh bitterly at the persons, which bred you enemies . . . . You will jest at any man in 37 This letter, from a “concealed friend,” was in circulation prior to Dec. 21, 1616. The author has never been identified. Francis Bacon was immediately suggested, as was Joseph Hall, later Bishop of Norwich. It has frequently been printed in collections of Bacon’s works, where it may most easily be consulted. Manuscript versions have also often survived. Quotations used herein follow the version attributed to Bacon in Francis Bacon, “Expostulation to Lord Coke,” Works at 3: 485–88 (Philadelphia: A. Hart, Basil Montagu ed. 1853). James Spedding, Bacon’s painstaking editor, rejected the attribution to the philosopher. The Letters and the Life of Francis Bacon at 6: 121–31. If an author need be sought, Bishop Hall is notably plausible. Before he received his mitre, Hall had established himself as a wit and satirist, and Puritan sympathizer, and he knew Coke’s family well. C. W. James at 102. 38 E.g. Robsert v. Andrews, Cro. Eliz. 82 (1588). In 1635, Judge William Jones remarked that both Coke and Chief Justice Hobart had enjoyed loquacity as a birthright, “ils fueront Norfolk men et ad delight de faire speaches.” J. H. Baker, The Order of Serjeants at Law at 375 (London: Selden Society 1984). 39 BL Sloan MS 1664, 47v. Similarly, Coke’s speech at the arraignment of the Gunpowder Plotters runs to dozens of pages in any edition.

Character public, without respect of the person’s dignity or your own: this disgraceth your gravity, more than it can advance the opinion of your wit, and so do all actions which we see you do directly with a touch of vainglory, having no respect to the true end.40

When Ralegh was on trial for his life, he used soft words to turn the edge of Coke’s attack. The notoriest traitor, Coke called him: a monster, a viler viper, the absolutest traitor, the confidentest traitor. Coke sat down “in a chafe,” recovered, and repeated the accusations. Ralegh spoke up, protesting he was being maligned, and then Coke leapt in again: Attorney. Thou are the most vile and execrable traitor that ever lived. Ralegh. You speak indiscreetly, barbarously and uncivilly. Attorney. I want words sufficient to express thy viperous treasons. Ralegh. I think you want words indeed, for you have spoken one thing half a dozen times. Attorney. Thou art an odious fellow, thy name is hateful to all the realm of England for thy pride. Ralegh. It will go near to prove a measuring cast between you and me, Mr. Attorney.41

This combativeness was characteristic. When Coke talked at dinner with other lawyers, he talked of winning an argument with his knowledge of Scripture, “27 Numeri voet que daughters inheritera: et terre ne doet linealment ascend: et par ceo il confound un civilian devant le sieur Treasurer.”42 When he sparred with Ellesmere, he took to new depths the King’s Bench’s longstanding feud with Chancery. Earlier judges had claimed that King’s Bench, not Chancery, was the kingdom’s highest court; none had dared, however, to threaten to issue prohibitions against the Chancellor.43 Sir James Fitzjames Stephen, who knew the English criminal law as only a heavy-handed Victorian could, ranked Coke among history’s most 40

“Expostulation to the Lord Coke” at 486. An irony lies in the fact that Coke carried a rapier with him to London, when he first set out to make a career at the bar, and that the only weapon catalogued in his estate was “a halberd in a case.” C. W. James at 322. 41 William Cobbett, Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors at 2: 26 (London: T. C. Hansard 1809); see also Karen Cunningham, “‘A Spanish Heart in an English Body’: The Ralegh Treason Trial and the Poetics of Proof,” Journal of Medieval and Renaissance Studies 22: 327–51 (1992). 42 Journal of Sir Roger Wilbraham at 18. 43 Baker, LPCL at 208–16; John P. Dawson, “Coke and Ellesmere Disinterred: The Attack on the Chancery in 1616,” University of Illinois Law Review 36: 127–52 (1941). When Coke compiled his Institutes, in discussing the forest laws, he took time for a back-handed swipe at differing views expressed by Roger Manwood. 4 Inst. 319.

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brutal prosecutors.44 Yet what must be balanced against such episodes—it can hardly be held to redeem them—is the fact that Coke could be counted on to display the same explosive energy in any cause he represented. He bullied Ralegh, stretching law and fact to obtain a treason conviction, but he would stretch the law just as forcibly on behalf of a common criminal, prying open each weak joint that appeared in a statute. He had argued just as vehemently for Paget and Englefield. Ultimately, Coke would oppose the crown with the same implacability he had shown in prosecuting its enemies. Coke was often on the verge of going too far, and sometimes, not always, he did. Ellesmere, who minced few words, called him “a foolish and frantic fellow,” “turbulently and idly broken-brained.”45 The point is very well taken. But Coke was not Sir John Davies, who hired thugs to stand by while he cudgeled a rival at a banquet at a Middle Temple banquet—or Sir Philip Sidney, who once threatened to knife his tutor— or even King James, who in the murderous affrays of Scottish politics had seen men die and had enemies killed. The only act of personal violence ever attributed to Coke was alleged by his estranged wife, Lady Elizabeth Hatton. Her husband, she claimed—a distinctly Elizabethan touch—had come violently into her chamber and pulled the ruff off her neck.46 Coke’s proudest boast was his personal integrity. “Never can a judge punish extortion, that is corrupted himself,” he wrote,47 and he noted that all his offices had been acquired “without begging or bribery.”48 On his monument at Tittleshall, he added that final postscript: he had been consistently the soul of honor, ever the steadfast champion of the cause of truth, never to be corrupted by bias or bribes. Coke did not count as begging, apparently, his hints that Cecil should lift him up the last step towards a knighthood. Nor did he regard what he offered his queen one opulent autumn, the sumptuous hospitality and the costly gems, as anything more than the homage of a loyal subject. Nor did he query closely the small considerations he had traded over decades: the venison received from the Countess of Derby, the salmon trout sent by a 44

James Fitzjames Stephen, History of the Criminal Law of England at 1: 333 (1883). BL Lansdowne MS 91, No. 14 (Ellesmere to Salisbury, 12 Sept. 1608). 46 Laura Norsworthy, The Lady of Bleeding Heart Yard at 277 (London: John Murray 1935). 47 Preface to the Fourth Part of the Reports (1604). 48 Historical Manuscripts Commission, Ninth Report: The Manuscripts of the Right Honorable the Earl of Leicester at 374 (1884) (unpublished manuscript on file at Holkham Hall, Norfolk). 45

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friend and passed along to Ellesmere—nor the trained hunting dog, a Norfolk tumbler, which he had presented to James.49 Coke had loaned money and borrowed money, he had bought and sold a wardship, he had asked for favors and granted them, he had skirmished over patronage appointments: none of that counted with him either. Then, too, Coke hardly needed to give or receive a bribe. As an oracle of the law, he could not be bought—that flattery he allowed himself—but as a lawyer, he would allow himself to be retained. Hence Jonson’s comment that clients strove more for Coke’s patronage than for their cause. The point was made more forcefully by Coke’s anonymous critic: “You cannot but have much of your estates, pardon my plainness, ill got; think how much of that you never spoke for, how much by speaking unjustly, or in unjust causes.”50 Coke thanked God, it is said, that he had never given his heart to cruelty, or his hand to corruption.51 Much is to be read behind these lapidary phrases. As a master of pleading, Coke must have known what they specifically denied and what by implication they admitted. When Coke said that he had not given his hand to corruption, that does not deny that he had dreamed of wealth or power, or that he had been tempted by advancement. Rather, it implies that he had ultimately rejected such temptations. It specifically asserts, with a lawyers’ pun, that Coke had never sold a ruling quid pro quo, never personally entered a crooked judgment, never aided or condoned fraud. (The choleric Ellesmere once spotted something dubious in a document offered for his signature. Would you have me set my hand to this? he demanded, Nay, I shall set both my hands to it—and ripped the document to pieces.)52 Beyond that, Coke’s statement offers a political critique. Uttered by a man who had been dismissed from office, it implies corruption in those who held power. Coke could not deny having had a hand in cruelty. He had used confessions procured by torture; he had sent too many felons to the gallows 49 C. W. James at 18, 22, 21. The “regular, almost ritual, distribution of goods in kind,” the constant exchange of game and the dogs and falcons used to catch it, is analyzed by Hugh Trevor-Roper in discussing the Lisle family correspondence. Hugh Trevor-Roper, “Foreword,” The Lisle Letters at 13–15 (Penguin: Muriel St.-Clare Byrne ed. 1983). 50 “Expostulation to the Lord Coke” at 487. 51 Fuller, Worthies of England at 415. Coke also thanked God that he had never given his body to physic. 52 Francis Bacon, “Apothegms,” Works 13: 402 (Apothegm 13).

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and too many courtiers to the scaffold. In the end, however, Coke could point to proof that he had not given his heart to this. “The worst tenure that I have read of,” he had observed, was to hold lands by being a hangman.53 He had also spoken against all forms of torture. “There is no law to warrant tortures in this land,” he wrote, “nor can they be justified by any prescription.”54 Francis Bacon, philosopher and man of letters, never denounced torture so categorically.55 Coke was even able to move beyond scruples and regret. When he came to the end of his Third Institute, his treatise on the criminal law, he remarked that the book so far was incomplete. So far he had spoken only of justice severé puniens, justice as punishment or retribution. What punishment or retribution meant, under the law of England, had clearly come to trouble the old man. “What a lamentable case it is,” Coke wrote, to see so many Christian men and women strangled on that cursed tree of the gallows, insomuch as if in a large field a man might see together all the Christians, that but in one year, throughout England, come to that untimely and ignominious death, if there were any spark of grace, or charity in him, it would make his heart to bleed for pity or compassion.

So stark a vision may draw on an actual nightmare. In all his works, this is the only scene Coke ever asks his readers to imagine. He knew the Anglo-Saxon laws and he knew Bede’s history, and in this moment the bleak world of the North breaks through. Yet there might be a remedy for this, Coke thought. As well as justice severé puniens, there could be “preventing justice.” This would lie “in the good education of youth, and that both by good instruction of them in the grounds of the true religion of Almighty God, and by learning some knowledge or trade in their tender years, so as there should not be an idle person or a beggar.” Such training would “avoid idleness in all . . . and by honest trades cause them to become good members in the commonwealth.” These were the old judge’s final considerations. Coke ended not with an apology for a set of bloody practices, but with the hope of reformation. 53 Co. Litt. 86a (“to hold lands to be ultor sceleratorum condemnatorum, ut alios suspendio, alios membrorum detruncatione, vel aliis modis juxta quantitatem perpetrati sceleris puniat”); see Thomas Blount, Fragmenta Antiquitatis 490 (ed. Josiah Beckwith 1815). 54 3 Inst. 35. 55 Coquillette, Francis Bacon at 279.

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Anne Bedingfield and Bridget Paston In 1581, the year Coke argued Shelley’s Case, there lived at Huntingfield in Suffolk a woman named Anne Bedingfield. She had been born Anne Moulton, in that village, and she ruled there all her life. She brought home a succession of husbands, each with greater wealth and an older surname, and all of whom she outlived: Nicholas Arrowsmith, John Paston, Edmund Bedingfield. Nicholas had leased an estate from the Duke of Suffolk. John kept the leasehold and added a flock of 1200 sheep. Edmund had the grandest surname and the greatest wealth, enough to shelter superannuated nuns and shrug at the laws against hearing mass.56 Anne’s daughter Bridget was sixteen years of age in 1581. She was an heiress, with an honorable lineage, valuable connections and a dowry which would be valued at £30,000.57 Her late father’s kinsmen brought forward various marriage proposals. One was that she marry into the Heydon family. Anne Bedingfield rejected this. She was outraged that her in-laws asked that Bridget come to their house, to meet young Christopher Heydon, “to the end proof might be made whether there might fall out any liking between the young parties.” It was not customary, Anne pointed out, “to have an interview between the young folk before conditions were fully concluded and agreed upon . . . I marvel that they would their kinswoman should seem to travel to seek a husband.”58 A mother who ruled out other suitors was Coke’s ally. At the height of summer, August 13, 1582, Edward Coke and Bridget Paston were married, at the church in Cookley, a neighboring village to Huntingfield. Coke’s wife and his mother-in-law, between them, shaped his life for most of the next two decades. He made his home at Huntingfield during the years he practiced law, for nearly fifteen years. The Cokes made their home at Huntingfield Hall, a nondescript grand house. Huntingfield Hall stood on a ridge’s southern flank, screened from the road by a wooded creek-bottom, the headwaters of the young River Blyth. Eight of the Cokes’ children were born at Huntingfield, christened there in tall-towered St. Mary’s Church, a choir of wooden angels watching from the rafter-ends. One child was buried 56

C. W. James at 11; MacCulloch, Suffolk and the Tudors at 174. The sum was probably not all in ready cash. C. W. James at 10–12. 58 C. W. James at 13. Christopher Heydon was one of Coke’s antagonists in Norfolk politics and later followed the Earl of Essex into rebellion. 57

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there, too, little Elizabeth, her brief life commemorated by a brass plate in the chancel. Coke bought the advowson and installed his friend Robert Gold as rector. Gold doubled as pedagogue; he tutored Coke’s sons, before they went off to board at Westminster School. Year by year, Coke bought farmland nearby: at Laxfield, at Badingham, four estates at Thorington, two properties at Huntingfield. Some of these manors, or all of them, Anne Bedingfield managed for him.59 Practicing before the courts at Westminster, following the judges on the Norfolk circuit, Coke could have lived at Huntingfield only parttime. Nonetheless, the place was a long-time center of his life. Given the successes he enjoyed in these years—given the family troubles and political friction he faced in later years—this was probably the happiest period of Coke’s life. Suffolk, where I passed my middle age, he thoughtfully wrote. Coke played backgammon (double-hand matches after dinner). He kept a falconer and knew well himself the different species of falcon, gyrfalcon, lanner, laneret, merlyn, hobby, goshawk, tercel, and sparhawk. At home in Huntingfield, probably more than any other place, he had the leisure to play backgammon and to hawk.60 Even with seasons in Norfolk and London, the Cokes must have passed a dozen Christmases in Suffolk. There would have been fresh pork roasted for the family, beef for the servants—pullets and mallards and snipe, capons poached in white wine. Skate and mackerel carted in from Southwold. Mustard to dress the dishes, onions to fill out the table. Venison haunches lugged in by clients’ footmen, apples and honey and spice-cake presented by the tenants. Oringado pie, a showy dish for Yuletide: candied orange-peel in a pastry shell, the crust resplendent with gold leaf. Little boys shouting in the hallways and throwing snowballs from the balcony. Old Mrs. Bedingfield reviewing this year’s harvest and next year’s rents. Backgammon in the evening with Robert Gold. At the kitchen door, where the poor claimed charity, servants doling out leek pottage and loaves of rye bread.61 In the courtroom, Coke repaid his debt to Anne. Her last husband, 59 Copinger, Suffolk Manors at 5: 23, 51, 165; Salisbury MS 5: 79 (Coke to Robert Cecil, 14 June 1595). 60 Co. Litt., Proeme; C. W. James at 21; 3 Inst. 97. It was Sir James Whitelocke whom Coke invited to play “tables [backgammon], a match at double hand with himself and others.” Liber Famelicus of Sir James Whitelocke, Camden Society (Old Series) 70: 48 (ed. John Bruce 1858). 61 Details of the Coke family’s foodstuffs and entertainments are taken from C. W. James at 16–25, from the household journal maintained by Bridget Coke, discussed below.

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Edmund Bedingfield, had been a prominent recusant. Their marriage had been performed by a Roman Catholic priest, according to the rites of the old faith. In 1586, after Edmund died, his heir Thomas Bedingfield— the son of an earlier marriage—denied Anne’s dower rights, claiming that her marriage had been invalid. Unlucky in her stepson, Anne had chosen her son-in-law wisely. Coke sued out a writ of dower and applied to the bishop of Norwich, who certified that the marriage had been valid. Anne won her widow’s rights, a thousand marks down and £500 per year to follow, secured by the rents of several manors. She then capped her triumph by outliving Thomas.62 When Anne Bedingfield died, in May 1595, Coke wrote a respectful epitaph. She was a godly, wise and virtuous woman, and kept a bountiful house at Huntingfield, especially for the poor, near fifty years. . . . Edward Coke, Esquire, Attorney-General to the Queen’s Majesty . . . for the great duty and reverence he owed the said Anne, caused this monument in memory of her to be made.63

If Coke’s vanity shows, so does his reverence. He must have considered that without his mother-in-law’s assistance, without the opportunities brought him by her daughter’s £30,000, he might never have been Attorney-General. Deeper than that is Coke’s observation of Anne Bedingfield’s charity. This may be the first note of scruple and sympathy to be heard in his work.

Bridget Coke’s Diary Bridget Coke’s life can be too easily treated as a function of her husband’s. It can seemingly be mapped by a few crucial coordinates: the date she married her husband, the dowry she brought him, the children she bore him (ten in fifteen years) and the date on which, aged only thirtythree, she left him free to marry again.64 This life seems to illustrate the 62

Anne Bedingfield’s Case, 9 Co. Rep. 15a (1586); MacCulloch, Suffolk and the Tudors at 195. Tablet in St. Mary’s Church, Huntingfield, published by Felicity Griffin in her history of the church and parish. Coke also wrote to Robert Cecil asking permission to spend time away from London, as he was “at this time in performance of the duty to her to whom in her lifetime I was most bounden . . . and because I must now alter my former course and presently dispose both of mine own and her poor living (of all which she took the charge and disburdened me during her lifetime.” Salisbury MSS 5: 279 (EC to Robert Cecil, 14 July 1595). 64 The children who survived to adulthood were Edward (b. Nov. 1583), Anne (Mar. 1585), Robert (Sept. 1587), Arthur (Aug. 1588), John (May 1590), Henry (Aug. 1591), Clement (Sept. 63

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common-law rule that a married woman’s existence is subsumed in her husband’s. Bridget’s lot was not atypical and no record can give her a longer life. However, the record which Bridget herself maintained, a household book surviving from the late 1590’s, suggests that her life was busier and fuller than the genealogies reveal. Bridget Coke seems to have had little role outside the household, but it was a large household, posing many demands, and she seems to have faced them all successfully. In the Coke establishment, forty-odd people had to be clothed and fed and housed, a situation complicated by differences in age and rank, seasonal shifts in available provisions, and the logistical difficulties of living part-time in at least three widely separated places: Godwick in northern Norfolk, Huntingfield in eastern Suffolk, and London. Rye flour had to be bought for charity loaves, brown wheaten flour for the staff, lighter flour and finer sieves for the family’s loaves—white manchet rolls for formal dinners. Beer was drunk by the children and claret by the master, which meant keeping a brew-house and stocking a cellar. Despite the household’s needs, choice items had to be sent on to repay friendship or oil professional connections (two salmon to Lord Keeper Egerton, for example). A courtier’s footman who brought a gift was tipped five shillings, but Sir Robert Cecil’s man got ten shillings, while a boy in Norfolk who brought a basket of strawberries got fourpence. A purser kept the ledger. Each week, the mistress reviewed the entries and marked them off, discharged by me Bridget Coke. Bridget did not bury herself in the country. She journeyed to London at least three times, and probably at least five.65 She traveled independently of her husband, accompanied by a courier-butler, twenty-five servants, and two small children. They made good time on the roads in summer, a flying column, screened by a advance guard of chambermaids. Some artifacts survive of Bridget Coke’s life in the broader world. The Harvard Law School Library preserves a letter of attorney by which Edward Coke and Bridget Coke appointed an attorney to receive seisin of Crostwick Hall in Essex. Bridget’s signature is firmly written, and she applied her own seal. Two heavy silver-gilt flagons which once graced the _____ 1594), and Bridget (Dec. 1596). Elizabeth was born and died in October 1586 and Thomas in January 1598, five months before Bridget’s own death. Vade Mecum, passim. 65 Henry and Arthur Coke were conceived during the Michaelmas law-terms of 1587 and 1590, respectively. During the law-terms, Coke would ordinarily have been in London.

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Coke family’s table may still be studied among the collections of the Metropolitan Museum of Art. These are decorated with a cockle-shell motif—from the French coquille, a pun on the Coke surname—but they bear inside their cover-hinges the arms of both families, Coke and Paston. The flagons were prized as heirlooms; after Bridget died, reportedly, her Paston relatives fought for them in court, and prevailed.66 That Bridget was a helpmate to her husband is attested by a venerable source, Sir Simonds D’Ewes’ Journals of all the Parliaments during the Reign of Queen Elizabeth. On February 24, 1593, when the Commons were gathered, awaiting Coke’s arrival as Speaker, he failed to appear. Coke sent word “that he had been this last night and also was [the] present forenoon so extremely pained with a wind in his stomach and looseness of body, that he could not as yet without his further great peril and danger adventure into the air at this time.” Another member of the Commons brought in a similar report, apparently comforting, that he had been with Coke that morning, “and left him sick in his bed, and his physician and his wife with him.”67 Around this same time, Bridget Coke took a brief, intriguing step completely out of her husband’s shadow. She sought out Dr. John Dee, Queen Elizabeth’s astrologer, and asked him to cast her horoscope. In his list of nativities, Dee reported that he had consulted with “Mrs Brigit Cooke, born about seven of the clock on Saint David’s Day, which is the first of March, being Wednesday, but I cannot yet learn whether it was before noon or after.” He added, “She thinketh herself to be but 27 years old, anno 1593, Martii primo, but it cannot be so.”68 Her husband’s successes, anno 1593, may have led Bridget to call on Dee. Coke’s career had turned a critical corner, with his appointment as solicitor-general and service as Speaker of the Commons. With greater 66 Harvard Law School Deed 614 (26 Feb. 1584/85); Yvonne Hackenbroch, English and Other Silver in the Irvin Untermeyer Collection at xii–xiii, 10–11, fig. 16 (New York: Metropolitan Museum of Art, rev. ed. 1969). Thanks are due to Christopher Hartop of Fakenham for the latter reference. There is something symmetrical in that the first man to claim these pieces was Edward Coke and that the last owner of these pieces, before they entered public hands, was William Randolph Hearst. 67 Sir Simonds D’Ewes, Journals of all the Parliaments during the Reign of Queen Elizabeth at 470 (1682). 68 The Private Diary of Doctor John Dee, Camden Society (Old Series) 19: 2 (J. O. Halliwell ed. 1842). At this point, Bridget had borne seven children in eleven years. If Doctor Dee questioned what she said about her year of birth, it may have been because she looked older than her years.

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preferment likely, Bridge may have sought to take stock of her nativity and learn what Dee could predict of her future. Her choice of astrologers speaks well for Bridget. Some women consulted Simon Forman, a conjuror and quack. Dee, by contrast, cast horoscopes when he was not gathering manuscripts, explaining the origins of stars, and trying to manufacture by chemical means what could only be described in the language of theoretical physics. Dee also had a sideline in intelligence work, a hazardous six-year mission to Bohemia, undertaken in late middle age, when he might have left it to one of Walsingham’s younger penetration agents. In this case, Bridget’s actions likely followed on Edward’s, but the process may have been reciprocal. The give-and-take of marriage may be reflected in the most personal corner of Coke’s professional life, his commonplace books. Faithfully, until 1594, Coke recorded astrological data on the births of his children. (He did not record such information for his own birth, or for other milestones of his life.) Throughout the series of entries, Coke made a consistent, basic error which suggests that he personally knew nothing of astrology. For each child’s birth, he recorded the lunar aspect as the solar aspect: for example, that Edward, born on November 27, was born “with the sun in Libra,” sol adtunc in Libra existente, and likewise, that on March 1, when Anne was born, “the sun was in Cancer.” In the language of astrology, a person’s sun sign is his or her birth sign, the one even skeptics know. Edward was a Sagittarius and Anne was a Pisces. A consistent error of this magnitude suggests that Coke lacked even this basic familiarity with the zodiac. Coke realized his error, finally—or someone pointed it out to him—and he went back through the series of nativities, rigorously changing sol to luna.69 If Coke took astrology seriously, why did he make so basic an error? If he thought the stars so important, why did he not record their aspect for his wedding-day, or the day he began to study law? There is a problem here, if making these entries was Coke’s own idea—but perhaps it was not. His commonplace books were Coke’s records of his life, personal as well as professional. Perhaps he knew astrology only vaguely, and recorded his children’s nativities imperfectly, at the behest of someone else: someone equally concerned with his children’s prospects, and who cared more about the meanings of the stars. 69

Vade Mecum at 112.

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Bridget died on June 27, 1598. Her tenth child had died at birth five months before, and it is likely that she never herself recovered. Dilectissima et precharissima uxor mea, Coke wrote: bene et beate vixit, et, tanquam vera ancilla Domini, obdormuit in Domino, et nunc vivit et regnat in coelo. My most beloved and most excellent wife—who well and happily lived— the true handmaiden of the Lord—fell asleep in the Lord—now lives and reigns in heaven. Four centuries later, it is hard to say what Coke felt when he recorded these sentiments. They could be the words of a mourning scholar who found comfort in familiar phrases, or perhaps they are the words of a man who preferred formal statements to emotional expression. It was beginning to be said of Coke, perhaps, that he was more comfortable with books than people.

Bridget Paston and Elizabeth Hatton Six weeks after Bridget died, walking in Lord Burghley’s funeral procession, Coke came up alongside Sir Robert Cecil. Cecil was overtaking the Earl of Essex now, quietly and steadily; he needed to strengthen his links to the Attorney-General, against that day when Essex would realize that he had lost. Coke had risen high under Burghley; he needed to secure the continuing favor of Burghley’s son. Sir Robert had a niece, Elizabeth, Lady Hatton, a widowed heiress. The Attorney-General was a widower. By the time the cortege halted, it is said, the two men had struck the obvious bargain. The story of Coke’s second wife belongs to the Jacobean era. Lady Hatton was younger than Coke by twenty-six years. She was a society beauty who brought to their marriage the gossip that follows society beauties, particularly when they marry older men. Their wedding offered Coke an immediate embarrassment; it was celebrated at night, in a private house, and without banns or license, a threefold violation of the marriage canons—problems which an Attorney-General should have avoided. Lady Hatton had her own estates, and resented Coke’s efforts to treat them as his own. They had two children, Elizabeth and Frances; over their marriages other quarrels arose. Lady Hatton was strongwilled, hot-tempered, emotive and articulate when she argued her own cause, and adept at making private alliances. If she and Coke were not compatible, at least they were well matched. Elizabeth Hatton was not the woman beside whom Coke was buried.

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That was Bridget Paston, whom her daughter Anne proclaimed, archly and eloquently, Coke’s “first and best wife.”70 She rests at Tittleshall, near an estate whose life she supervised, with her children’s likenesses about her, her own image sculpted in brilliant white marble. A virtuous woman, her value above rubies; surrexerunt filii ejus, et beatissimam praedicaverunt. 70

Norsworthy, The Lady of Bleeding Heart Yard; C. W. James at 67.

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chapter 13

The Parliament of 1593

During the 1580’s, Coke made his reputation as a lawyer and man of affairs. He made his way across the Elizabethan world, and, in the 1590’s, the Elizabethan world began to make a way for him. This was the decade in which honors and offices began to arrive, in which Coke stepped out of the mass of provincial gentlemen and Inner Temple practitioners. The rise of the successful man, Francis Bacon advised posterity, was always by a winding stair. Coke himself would have learned such turnings well. His rise depended on his skills as a lawyer, his bluntness as a prosecutor, the connections he maintained with Norfolk, and new compromises he struck in London.

Solicitor-General and Speaker of the Commons The guard of the regime was changing. The Earl of Leicester had died in 1588, followed in 1589 by Sir Walter Mildmay, Chancellor of the Exchequer, and in 1590 by the queen’s austere spymaster Sir Francis Walsingham. Lord Chancellor Sir Christopher Hatton had died in 1591. Burghley remained, “the Atlas of the Commonwealth,” as his quickwitted nephew called him; but he was a tired-out septuagenarian now, crippled by arthritis. As the faces changed on the courts before which he argued, Coke himself began to rise. In 1585 he served as recorder of Coventry. In 1586 he was chosen as recorder of Norwich (a hometown triumph; he boxed

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in red his notebook entry of the honor). In 1591, Coke was named recorder of London—a stepping-stone appointment, the first truly national position he had held. To be recorder of London was to be both chief lawyer and chief judge for the metropolis. The recorder, who was expected to be “one of the most skillful and virtuous apprentices of law of the whole kingdom,” attended the Court of Aldermen. Numerous other duties followed: The Lord Mayor’s Court was his preserve, despite its name, for he acted as sole judge there. He was expected to attend the Hustings, in order to advise on legal points, produce precedents, explain former verdicts, and pronounce judgments of outlawry. . . . He probably performed some police duty, but again his main duties seem to have been judicial. Throughout his jurisdiction he served as a judge at sessions of oyer and terminer and of gaol delivery. It was he, in his role of justice, who was responsible for taking recognizances for appearance.1

Practically speaking, the recorder of London played a crucial role in law enforcement and internal security. The city’s aliens bore watching—so too its foreign ambassadors, its duelists, its footpads and prostitutes, its masterless men, its bookbinders and playing-card printers—so too its native-born Catholics.2 In early 1592, further opportunities beckoned. Old Chief Justice Wray died; Attorney-General Popham moved up to Wray’s place on the King’s Bench, and Solicitor-General Sir Thomas Egerton moved up to Popham’s place. Coke succeeded Egerton. Behind these moves lay an intrigue by the Cecil family. Robert Cecil wrote to Sir Michael Hickes, his family aide, two cryptic letters on the matter. “I will assure nothing,” Cecil warned, “but believe it upon my word, whosoever tell you otherwise, that this day of Mr. Solicitor’s sending for [by the queen], and his coming hath not done any halfpennyworth of harm to your friend, for I was by at every word . . . . I must tell you still, but use it discreetly, [that] I am in constant hope of your friend and mine.” In the second letter, still without naming this friend, Cecil warily noted success: “If not now never, for Mr. Solicitor doubt 1 Paul E. Kopperman, Sir Robert Heath 1575–1649: Window on an Age at 20–21 (London: Royal Historical Society, Studies in History No. 56, 1989), citing John Stow, Chronicle of London, and Liber Albus: The White Book of the City of London (H. T. Riley trans. 1862). 2 P. R. Harris, “William Fleetwood, Recorder of the City,” Recusant History 7: 106–22 (1963); Paul Griffiths, “Overlapping Circles: Imagining Criminal Communities in London 1546–1645,” in Communities in Early Modern England: Networks, Place, Rhetoric, ed. A. Shepard & P. Withington (Manchester UP 2000), 115–33.

The Parliament of 1593

him not . . . and on the other [the queen] doth and hath resolved . . . . Burn this.”3 These letters suggest that Coke’s promotion was a near-run thing. There must have been fall-out from the year before, when Coke and Wyndham had given the grand jury charge attacking the ex officio oath. Coke’s own connections, to the radical Stubbes family, provided further political embarrassment. Coke’s brother-in-law’s brother-in-law Thomas Cartwright was still committed to purifying the English church, even after eighteen months of imprisonment. At the other end of the religious spectrum, Coke had clients equally unpopular with the queen. He had zealously defended a brace of attainted traitors, Thomas Lord Paget and Sir Francis Englefield, deflecting the crown’s attempts to confiscate their estates. As Elizabeth grew older—she was 59 in 1592—she showed more often her father’s penchant for bullying the servants. On June 14, 1592, she summoned Coke to Greenwich and berated him for defending Paget and Englefield. A Tudor monarch’s rages could be explosive and this one seems to have had full effect. Coke was surprised and shaken. He had been, he wrote, so wholly appalled and dismayed (and being surprised with an incomparable grief that so gracious a prince should in any sort suspect my loyalty and inward duty and allegiance to her highness, and feeling a wonderful natural fear and love which God hath grafted in a subject’s heart towards his natural sovereign) that my heart shaked within my body and all the parts of my body trembled so as I neither could mark the conclusion of her speech nor make any answer at all, nor until mine eyes gushed out with tears could be reduced to perfect memory. . . .4

The queen relented, seeing Coke’s fears and his “exceeding tears and anguish of mind.” She let him make a “sobbing” and “troubled” speech, and only then announced that she was making him Solicitor-General.5 Assured of royal favor, Coke returned to legal London, to the courts and the lawyers’ chambers. He was heartened by his rise, enough to add further manors to his holdings.6 He lectured that summer at the Inner 3 Alan G. R. Smith, Servant of the Cecils: The Life of Sir Michael Hickes 1543–1612 at 74 (London: Jonathan Cape 1977). 4 Baker, LPCL at 203. 5 Coke recorded that he had been given the position by letters patent, three days before his interview with the queen. Vade Mecum at 114. He also recorded that the mayor and aldermen of London voted him £100 on his leaving the recorder’s position. Id. 6 One was at Thorington in Suffolk, the others at Wellingham and Toftrees, near his birth-

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Temple, a reading on the Statute of Uses. His lectures were cut short by a recurrence of the plague. Nine benchers and forty members of the Inn escorted him to Romford as he rode out of the city, a guard of honor for a leader of the bar.7 This was not his first reading at the inns of court—he had lectured twelve or thirteen years before, on the Statute of 27 Edward I, De Finibus Levatis—but this second reading promised more. Only a reader could be made a serjeant-at-law, and only a serjeant-at-law could be made a judge. When he had given his first reading, Coke had been only twenty-eight, precociously learned, too young to assume the serjeant’s coif. He was forty now, of an age to rise to his profession’s higher ranks. The same plague closed the theatres. Somewhere in the country, William Shakespeare used the holiday to write Venus and Adonis, his first long work in verse, something more prestigious than comedies and history plays. Coke traveled to Huntingfield, with the upcoming Parliament on his mind. He worked out election strategy with Nathaniel Bacon. When the campaign was over, twenty-two winters after he had first journeyed to London, Coke traveled south, to superintend the House of Commons. On January 28, 1593, even before the electors of Norfolk elected him knight of the shire, the Privy Council had chosen Coke to serve as Speaker. The post of Speaker was an important and delicate position. The Speaker presided over the Commons. He was a man chosen “for gravity, wisdom, experience, and learning,” entrusted “to direct and guide [the Commons] in good order, and to see the ordinances, usages and customs of the same to be firmly kept and observed.”8 He presided over frank and forthright debates. He represented the Lower House in dealing with the Lords, the Privy Council and the monarch. At the same time, the Speaker was equally expected to represent the crown—to ensure that the Commons voted the funds and passed the laws which the monarch had expected in summoning a Parliament, to prevent the Commons from venturing into areas where the monarch wanted no debate (religious policy, say, or royal marriages). In many ways, the post involved seeing that the _____ place of Mileham. C. W. James at 305, Calendar of Holkham Estate Records at 4: 55, Docs. 51–52) (purchase of Wellingham and Toftrees). 7 Vade Mecum at 114–15. 8 Vernon F. Snow, Parliament in Elizabethan England: John Hooker’s “Order and Usage” at 164–65 (New Haven: Yale UP 1977). The crown selected the Speaker beforehand, but the Commons finalized this with their vote; Coke analogized it to a royal congé d’élire directing the election of a bishop. 4 Inst. 8.

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Commons kept itself within established bounds, so that the crown did not need to intervene directly.9

Background to the Parliament With the deaths of Leicester, Mildmay, and Walsingham, England’s Puritans had lost devoted friends at court. Preoccupied with France and Scotland, forced to consult with numberless doctors, Burghley could no longer be counted on. Archbishop John Whitgift had become the queen’s preeminent advisor on matters of religion. She joked that he was her “little black husband”—neither of them would ever marry, now—and backed him in his efforts to enforce religious uniformity. Parliament had been summoned because the government needed money. The subsidies voted in 1589 had been collected and spent; meantime, the war with Spain continued, and a vigorous rebellion had broken out in Ireland. The House of Commons would face royal demands for new taxes, then face resistance at home from neighbors who were reluctant to pay. The Commons would also face the pressure of religious difference—one-sided this time. For the first time in twenty years, there was no forceful Puritan cadre in the House. Whitgift had temporarily squelched the opposition with his wave of Star Chamber prosecutions. During this Parliament, it was the regular, conforming churchmen who looked to control the course of legislation. In the Lords, the bishops’ votes gave them a commanding position; in the Commons, their interests were protected by Privy Councillors and an aggressive guard of civil lawyers. Whitgift had friends among the Members, too, ready to inform him of how debates were running, in defiance of the Commons’ tradition of confidential debate. Whitgift was even holding hostages, separatist preachers Henry Barrow and John Greenwood, prisoners these last five years in the Clink and the Fleet. Their confinement had not been close—they had managed to write and smuggle out manuscripts—and Greenwood had even won release under house arrest. All this changed, suddenly, as the opening of 9 The Speaker received an honorarium of £100 from the crown (possibly more), as well as £5 for every private bill “before he deliver it out of his hand.” Other gifts, rewards, and gratuities could also be expected. J. E. Neale, The Elizabethan House of Commons at 319–20, 324 (rev. Penguin ed. 1963). Coke likely received a fee of £10 from the aldermen of London. Id. at 325. During the session, the Speaker was expected to refrain from all other outside dealings, e.g. legal practice. Snow, Parliament in Elizabethan England at 171.

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Parliament neared. In December 1592, Greenwood was sent back to prison. Jailed with him were the most prominent members of his congregation. From December, signs of the crackdown had become routine: midnight raids throughout the metropolis, arrests, houses ransacked, interrogations begun. In February 1593 came bitter political theatre: a believer died in prison, and his friends laid his coffin at the door of Justice Richard Young, the magistrate who had arrested him. Handbills appeared throughout the city, warning that the saints’ blood cried out for vengeance—even as the crack-down continued. In March, while the Commons debated in Westminster, Barrow and Greenwood would be in the dock at Newgate, charged with writing seditious books.10

The Opening of Parliament On February 19, 1593, the Parliament opened.11 The plague was still a menace; rather than processing through the streets of London, the Lords met at Westminster Abbey. Members of the Commons may have joined them there, in the dark chilly abbey, a sober and diminished assembly, “shorn of state, minus robes and minus sovereign.”12 Archbishop Whitgift looked down from from the pulpit, reminding his listeners of their duties. That afternoon, the somber tone was reinforced by Lord Keeper Puckering. He reminded the Commons of their country’s enemies, the vengeful king of Spain and the “secret intelligencers” upon whom Philip relied. He ended with the warning that the queen wanted no new laws. They could best serve Her Majesty by voting her the subsidies she needed, then returning home to prevent the troubles of which the Spaniards 10

Throughout this chapter, accounts of the government’s efforts to suppress Separatist dissent rely upon “The Writings of John Greenwood and Henry Barrow 1591–1593,” Elizabethan Nonformist Texts, Vol. 6, ed. Leland H. Carlson (London: Allen & Unwin 1970), 271–91, 292–319, 406–12, esp. 499–504. 11 The following account of the Parliament of 1593 draws upon Sir Simonds D’Ewes, Journal of All the Parliaments During the Reign of Queen Elizabeth (1682); T. E. Hartley, Proceedings in the Parliaments of Elizabeth I (Vol. 3, 1593–1601) (1995), and Sir John Neale’s essential studies, The Elizabethan House of Commons (rev. ed. 1963) and Elizabeth I and Her Parliaments 1584– 1603 (the second volume of his overall survey), as well as more recent scholarship written or edited by David Dean and Norman L. Jones. Specific quotations will be identified by source. Catherine Drinker Bowen provides a vividly theatrical view of the Commons of 1593 in The Lion and the Throne (1957). The History of Parliament’s biographical directory of Elizabethan MP’s, edited by P. W. Hasler, remains indispensable despite certain deficiencies and has been drawn on throughout in tracing individual Members’ careers and connections. 12 Neale, Elizabeth I and Her Parliaments at 2: 245.

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had such hopes, “the discontentment of the Papists, the proceedings of the Puritans, and the grievances of the people.”13 Coke was formally elected Speaker that same day. Three days later, on February 22, he trooped with the rest of the Commons to the House of Lords. The occasion was the “disabling speech.” Traditionally, as each Parliament opened, the Speaker “disabled” himself by a speech which apologized for his own shortcomings and unworthiness. Since 1523, when Sir Thomas More had asked this favor of Henry VIII, the Speaker had also requested that the Commons be allowed full freedom of debate.14 For his own disabling speech, Coke was never in better form. He was forty-one years old and in good voice, looking forward to a resplendent venue for his address. Across the Lords’ Chamber, he faced the queen on her dais—Privy Councillors flanking her left and right. Bishops were ranged against the left wall of the chamber, peers on the right, a knot of red-robed judges in the middle of the floor. The Commons and the barons were massed at the bottom of the chamber. So to speak, the barons were seated in the orchestra, with the Commons packed into a standingroom-only section behind them. With Coke on a footstool at the center of the Commons, crowded in behind the bar which divided the room, it was as if the galleries had named a spokesman to address the commanding performers on stage. About three o’clock in the afternoon, after the Commons had waited two hours to appear before the queen, Coke began. He praised the Commons highly, praised the queen more highly, and elaborately disparaged himself. This their nomination [his selection as Speaker] is only a nomination and no election until your Majesty gives allowance and probation; for as in the heavens a star is but opacum corpus until it hath received light of the same, so stand I corpus opacum, a mute body until your high bright shining wisdom has looked on me and allowed me. How great a charge this is to be the mouth of such a body . . . my small experience being a poor professor of the law can tell . . . of a number in this House the most unfit. For amongst them are many grave, many learned men, many deep wise men, and those of ripe judgments; but I, an untimely fruit not yet ripe, nay but a bud scarce fully blossomed, so as I fear your Majesty will say “Neclecta fruge ligantur folia”— 13

Id. at 2: 247. See, e.g., Snow, n. 56 at 166–67; John Neale, “The Commons’ Privilege of Free Speech in Parliament,” in Tudor Studies Presented to Albert Frederick Pollard, ed. R. W. Setton-Watson (London: Longmans, Green & Co. 1924), 257–86. 14

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The Parliament of 1593 amongst so many fair fruits ye have plucked a shaking leaf. If I may be so bold to remember a speech which I cannot forget used the last parliament in your Majesty’s own mouth, many come hither ad consulendum qui nesciunt quid sit consulendum; a just reprehension to many, as to myself also, an untimely fruit, my years and judgment ill-befitting the gravity of this place, and I the meanest that ever exercised the same.15

The modesty was assumed, but the phrases were memorable. As the afternoon wore on, Members paid less attention to Coke’s oratory. One summarized: His speech after this wholly tended to show out of the history of England and the old statutes how the kings of England ever since Henry III’s time have maintained themselves to be supreme head in all causes within their own dominions. And then recited the laws that every one in his time made for maintaining their own supremacy and excluding the Pope: he drew down his proof by statutes of every king since Henry III’s time to Edward VI. This ended he came to speak of laws that were so great, and so many, already that they were fitly to be termed elephantine leges, wherefore to make many laws it might seem superfluous. And to him that might ask, “Quid causa est in tanta crescunt volumina leges?” it may be answered, “In promptu causa et crescit in orbe deus.”16

On the queen’s instruction, the Commons adjourned until Saturday, February 24. In fact, they waited longer. When they met that Saturday, ready to start business, they found that Coke had been unexpectedly laid up with a stomach ailment.17 They recited the litany, then went home. By Monday, February 26, their Speaker had recovered, and their work could begin.

Recusants and Puritans The government was not slow to show its hand. During the week of the adjournment, the Privy Council had learned that Peter Wentworth, most intransigent of Puritan activists, was planning to open debate on the royal succession. The Council learned this on Thursday morning; by Thursday night, Wentworth was in the Tower. Robert Beale, another veteran dissident, was warned to keep quiet—perhaps confined, as well. Nor was it only the older generation of activists who suffered. A younger man of radical temper, Sir Edward Hoby, was confined after he quarreled with 15

Hartley, Proceedings at 3: 64–65. Id. at 3: 66. 17 This was the occasion on which Coke was reported safe at home, cared for by his wife and physician. D’Ewes at 470. 16

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a member of the Privy Council. On February 27, as the Commons began work, James Morice, another Puritan stalwart, proposed two bills against the bishops and the Court of High Commission. Morice promptly vanished under house arrest. “In the course of this Parliament,” Sir John Neale summed up, “the queen imprisoned or sequestered seven Members: action unprecedented in scale during her reign.”18 Morice’s bills, however short-lived, caused a tumult. They denounced “the lawless and condemned proceedings ex officio mero” of the Church of England’s bishop and ordinaries, “an ungodly and intolerable inquisition.” Morice claimed that he meant only to admonish the churchmen, but he nonetheless asked that such ex officio proceedings be treated as criminal offenses. A civil lawyer and a member of the Privy Council attacked the initiative; old Sir Francis Knollys defended the measure. Members hawked and coughed and spat to drown out speeches by the bishops’ allies. Sensing how badly things were going, young Robert Cecil reminded the House that the queen had forbidden action on religion; the Commons ignored him and demanded that Morice’s first bill be read.19 The Commons sat in what had been St. Stephen’s Chapel. At this chamber’s eastward end, the Speaker’s chair was placed centrally—in front of where the high altar had stood, elevated by the medieval dais, which had not been lowered when the building was converted. The chamber, it was said, [was] made like a theatre, having four rows of seats one above another round about the same. At the higher end in the middle of the lower row is a seat made for the Speaker, in which he always sitteth; before it is a table board, at which sitteth the clerk of the house and thereupon layeth his books, and writeth his records. Upon the lower row on both sides the Speak sit such personages as be of the king’s privy council, or of his chief officers, but as for any other, none claimeth nor can claim any place, but sitteth as he cometh.20

Coke looked out from the dais on a difficult, disgruntled crowd—hundreds of Members, pressing hard into a room too small for them, each 18 Neale, Elizabeth I and Her Parliaments at 2: 278. The following account of Morice’s bills and the government’s reaction relies on the same work at 2: 251–77. 19 Hartley, Proceedings at 30, 31; 30–44; Neale, Elizabeth I and Her Parliaments at 2: 268– 73; David Dean, Law-Making and Society in Late Elizabethan England: The Parliament of England 1584–1601 at 117 (Cambridge UP 1996). 20 Snow at 163–64; see Alasdair Hawkyard, “From Painted Chamber to St. Stephen’s Chapel,” Parliamentary History 21: 62–84, 81 (2001).

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man struggling to sit where he could find a place. He was on stage, surrounded by the noise of harrumphing and spitting. In so tightly packed a venue, the noise of protest must have been overpowering. Or, perhaps, it was only in so crowded a space that the noise of protest seemed overpowering. Throughout the Parliament, members of the Lower House would protest government action, but the government’s men in the Commons were consistently able to control and suppress dissent. As Speaker, it was Coke’s duty to read Morice’s bill. Instead, against the will of the House, he followed Cecil’s lead, trying to block further action. He counted the pages in the bill and suggested that it was too long to be read that morning. The Commons rejected that. He asked that the bill be sent to a committee, or that he be delegated to discuss the bill with the Privy Council. The House rejected that, too. If the coughing and hawking and spitting continued, Coke may have thought of Cicero, shouted down by the Roman crowds. Or, perhaps, he was fighting a delaying action. In this Parliament, a clock had been installed in the Commons’ chamber—an official clock, provided by the sergeant-at-arms, who recouped its cost out of each member’s fee of twelvepence. Coke could apparently see the timepiece from where he presided.21 The Commons sat only in the mornings and were scheduled to rise at noon. As Coke talked on, promising to hold Morice’s proposals in confidence, the clock ran out. At noon, as London’s church-bells rang, even though no action had been taken, the Commons rose and emptied the chamber. Cecil and Coke had held the crown’s line, at least for that day. Within two hours, Coke had been summoned by the queen. This time her anger was not assumed. Imperiously, Elizabeth instructed him to deliver a message to her subjects in the Commons. Coke complied. The message he bore, as he delivered it next day, emphasized that the queen could make herself feared as well as loved. Coke had been brought before the queen, alone. “Who is so impudent whom the presence of such a majesty would not appall?” he mused. He had been disheartened to see no Privy Councillors present, but then, “so God and his providence had appointed it,” that the Privy Councillors who sat in the Commons had joined them. Then Elizabeth had turned upon her Speaker. It was her power and hers alone, she told Coke, to summon Parliaments. “The calling of this Parliament was only that the 21 D’Ewes at 507, 478. As early as 1547, unofficial or semi-official clocks had been in the Commons, watched by members. Hawkyard, Parliamentary History at 21: 83.

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majesty of God might be more religiously served; and those that neglect this service might be compelled by some sharper means to a more due obedience.” It was not her pleasure that the Commons “should meddle in matters of state or in causes ecclesiastical.” She was offended that Members had forgotten this. Finally, Coke reported to the Commons: Because the words then spoken by the Lord Keeper [when opening Parliament] are not now perhaps well remembered, or some be now here that were not then present, her Majesty’s present charge and express commandment is that no bill touching the said matters of state or reformation in causes ecclesiastical be exhibited. And upon my allegiance I am commanded if any such bill be exhibited, not to read it.22

Coke asserted that the queen had been gracious. He insisted that she had not asked to read Morice’s bill, which he had been carrying on his person. Yet the outline of the interview remains unmistakably menacing. The monarch had summoned the Speaker of the Commons—warned him not to pursue a program of legislation—and directly ordered him not to read, on pain of being considered disloyal, any bill relating to that topic. The Privy Councillors had stood by to reinforce the queen’s authority, not to offer Coke collegial support. Browbeaten by Elizabeth once before, Coke must have felt personally the sting of his queen’s command. He had spoken himself against the ex officio oath and the ordinary’s power. Now he stood alone before his monarch, carrying a bill which renewed such complaints, to be told that such bills were no concern of his and that he would be disloyal if he tolerated them. It is small wonder that he spoke of being appalled by majesty.

Puritanism on the Defensive The queen’s warning went home. No Puritans rose in protest: not Nathaniel Bacon, not Sir Francis Knollys, not even Nicholas Fuller. They knew what had happened to Wentworth and Morice. With such losses already suffered, they must have hesitated to risk more in an opening engagement. Nor did the passage of time refresh their courage. The next week, on March 4, Justice Young and his men surprised a Separatist meeting in the woods near Islington. Scores of worshipers fled, but at least 54 were caught and jailed. By March 10, a petition protesting the prisoners’ treatment had been drafted by John Penry and forwarded to 22

Hartley, Proceedings at 3: 84–85 (emphasis supplied).

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Parliament, to Lord Keeper Puckering in the Lords and to Coke in the Commons. The petition to the Commons seems to have been carried by Penry’s wife. No action was taken on the petition, some of its bearers seem to have been clapped into jail, and no protest was heard.23 As for the backbenchers—whatever their Protestant sentiments, they too could sense the mood, and they had other business to pursue, “bills of no great moment” that nonetheless had to be drafted and debated and voted up or down. There were bills on woollens, foreigners’ rights in the London retail market, bastardy and forgery, “clapboards and casks,” all of which concerned some Members closely. Sir Francis Drake, MP for Plymouth, was ingloriously enrolled on the committee for salt-fish and herring. Moreover, the subsidy had begun to absorb attention. Like all tax bills, it demanded both controversial decisions and close technical attention. Members were called on to decide whether a double subsidy should be voted, or an unprecedented triple subsidy, whether assessments should reflect the value of taxpayers’ lands or taxpayers’ goods, whether payments should be collected over three years, or four, or six.24 Also prominent was a matter of privilege. Thomas Fitzherbert, a Member returned for the borough of Newcastle-under-Lyme, had failed to pay debts totaling £4,000, not counting £1,400 due to the queen. His exasperated creditors had won twenty-two judgments against him, and Fitzherbert had been outlawed—in connection with which, on the morning of his election to Parliament, he had been taken into custody by the sheriff of Staffordshire. Fitzherbert invoked the traditional Member’s privilege against being arrested for debt. Very likely, he had arranged his election at the last minute, precisely in order to claim the privilege. This dispute reverberated far outside the Midlands. More than a hundred other Members, it was reported, had also been outlawed. To deal with such widespread scandal, the queen had privately forbidden the Lord Steward, who swore in Members of the Commons, to administer the Member’s oath to any outlawed Member who had not settled with his creditors. With so many Members personally involved, the debate wound around this issue for weeks, threatening a collision between Parliamen23

Carlson, “Writings of Greenwood and Barrow” at 366–67. It was the means of financing which caused most of the friction, rather than disputes over the amount or necessity. On a constitutional level, such disputes may have reflected the difficulties of providing for increasingly regular levies of taxes, in peacetime, which remained, in theory, extraordinary levies for the expenses of war. J. M. Alsop, “Parliament and Taxation,” in The Parliaments of Elizabethan England, ed. D. M. Dean & N. L. Jones (Basil Blackwell 1990), 91–116. 24

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tary rights and royal policy, over whether Fitzherbert could claim the privilege or the queen could prevent its abuse.25 After a few days, on February 28, the Commons began considering another bill to tighten the laws against recusants. The judges had drafted the bill, and its terms were suspiciously broad. Sensing that the government was laying a trap, Henry Finch and Nathaniel Bacon demanded that the measure apply only to Roman Catholics, not to Puritans who shunned the established Church. Over conservative opposition, they added a preamble spelling out this limitation. By March 13, debate was squarely under way. Coke weighed in with lawyerly advice on statutory construction: Mr. Speaker said, that the Preamble of this bill being conferred with the body of this bill, other recusants than Popish recusants could not be comprised therein. For the title of the bill and the preamble run only in this manner, against such as are enemies opposed to the our state, and adherents to the Pope. So another bill might be framed against those persons, but these cannot be comprised therein.26

Shortly thereafter, this bill vanishes from the record. Finch and Bacon had rightly spotted the government’s stratagem. The Commons had affirmed, and Coke had affirmed with them, that they wanted no action taken against Protestant recusants. The government did not care to press the bill, and apparently dispatched it sub rosa.27

Action by the Government Simultaneously, the government began two curious initiatives in the House of Lords. One initiative was fiscal. The queen and Council, growing exasperated with the Commons, feared that too little money would be appropriated if the Lower House were left to its own devices. Instead, heavy-handedly and without precedent, they introduced their own taxation legislation, drafted in the Lords. The Commons hesitated to accede to the Lords’ bill, or even to confer with the Upper House on such a measure.28 Coke professed himself “much satisfied” with a semi-legend25

Neale, Elizabeth I and Her Parliaments at 2: 313–18. D’Ewes at 500. 27 Neale, Elizabeth I and Her Parliaments at 2: 285–86. 28 David Dean has laid the blame for these difficulties on a higher level of royal servant, Privy Councillors who offered vague or contradictory guidance to the Commons. Dean, LawMaking and Society at 43–46. Even without subscribing to Sir John Neale’s theory of a cohe26

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ary precedent, an incident reported from the reign of Henry IV, in which the Commons asserted that meeting with the Lords on such issues would be a breach of the Lower House’s privilege. However, under continuing government pressure, Coke and the Commons finally agreed to a conference. By March 13, agreement had been reached. Last-minute questions then arose. The Commons wanted to make revisions at a leisurely pace, but Coke sided with the government in pushing for quick action. His intervention was crucial: “The Speaker perceiving the Privy Councillors of the House desirous to have the bill expedited, did over-reach the House in the subtle putting of the question,” it was remembered.29 The bill was revised in committee, immediately. The government’s second initiative was another bill on religion. On March 22, this began to take shape in the Lords. This proposal, too, had been drafted by the judges—Chief Justice Anderson prominent among them. It passed in the Lords, which still contained many Puritan sympathizers, on a vote carried only by the bishops’ votes. Broad in its application, heavy in its sanctions, it represented the establishment’s most rigorous effort to stamp out dissent, and its terms proved elastic and disingenuous. Under the statute of 1581, it was treason for a Roman Catholic priest to withdraw the queen’s subjects from their natural allegiance to their monarch—treason for the priest, treason for the subject reconciled to Rome. The new bill “explained” the existing statute by extending these penalties to Protestant sectaries, to separatist preachers and their most loyal congregants.30 Other “obstinate recusants” came under other penalties: If by printing, writing or speech they persuaded anyone to deny the queen’s power in ecclesiastical causes, or “to that end” persuaded anyone to be absent from church or to attend unlawful assemblies, conventicles or meetings, or were present themselves at any such assemblies, then they were to be imprisoned and, if at the end of three months they had not conformed, were to be banished. Another provision . . . imposed a fine of £10 a month on anyone keeping an obstinate recusant in his house, after due warning; but a pro-

_____ sive and well-organized Puritan opposition party, one can also sense the shape of arguments to come. A Member who spoke of raising money by calling in the queen’s debts, selling royal coppice-wood, and fining recusants, Conrad Russell has argued, is at least “at times the spiritual ancestor of Sir John Eliot.” Conrad Russell, “English Parliaments 1593–1606: One Epoch or Two,” in The Parliaments of Elizabethan England at 191–313, 198. 29 D’Ewes at 500. 30 Neale, Elizabeth I and Her Parliaments at 2: 287.

The Parliament of 1593 viso was added, which—in appearance at least—excepted near relatives. The wording of the bill was loose: deliberately so, one suspects. It would undoubtedly have trapped Puritans as well as separatists.31

In the Commons, Whitgift and his allies had failed with their first attempt to bring Protestant believers under the same penalties as Roman Catholics. The Lords’ bill was the government’s second attempt to pass such a measure. On March 30, the same day that the government suggested that the Commons consider the Lords’ new bill on religion, the government staged its own exercise in political theatre. That morning, jailkeepers and hangmen laid hands on the bishops’ prisoners. Henry Barrow and John Greenwood were dragged from their cells, pushed onto a cart, driven through the streets of London until they sat under the gallows at Tyburn. They professed their faith and prepared to die for it. Then, as the ropes were being tied, a messenger came; the two men had been reprieved.32 The sinister charade made certain political points. Perhaps Archbishop Whitgift hoped to terrify Barrow and Greenwood into recanting, in order to embarrass their friends in the Commons. Perhaps he meant to show the Commons that any law, no matter how narrowly written, could be used against Protestant sectaries: Barrow and Greenwood had been convicted under a statute expressly aimed at Roman Catholics. Perhaps the Archbishop genuinely meant to hang the preachers, and was thwarted at the last minute. The inescapable lesson was that Whitgift controlled the whip hand of government, and that the bishops and the judges would brook no opposition. Burghley had managed to save the prisoners, this time, but his influence was failing. The old man “spoke sharply to the Archbishop of Canterbury, who was very peremptory, also to the Bishop of Worcester, and wished to speak to the queen,” it was reported, “but none seconded him.”33 On April 2, the Commons took up the Lords’ bill. The legislation was “very much in debate, and so long till we were weary of it,” a diarist wrote. It was debated three days further, in general session and in “great committee,” perceptively dissected and extensively amended. The Members found “divers mischiefs . . . which might entrap the best of subjects.” 31

Neale, Elizabeth I and Her Parliaments at 2: 287. G. B. Harrison, An Elizabethan Journal, Being A Record of the Things Most Talked About During the Years 1591–94 at 1: 177 (Anchor Books ed. 1965). Barrow and Greenwood had been tried and condemned for sedition on March 21–22, at the Session Hall outside Newgate. 33 Id. at 180. 32

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Radical lawyer Nicholas Fuller had pointed out the bill’s partisan bias, that it “made schisms to be equal with seditions and treasons”—whoever wrote or spoke on controversial topics ran the risks of punishment. With a commander’s realism, Sir Walter Ralegh pointed out the practical problems of banishing dissenters: “If two or three thousand Brownists meet at the sea, at whose charge shall they be transported, or whither will you send them? I am sorry for it: I am afraid there be ten or twelve thousand of them in England. When they be gone, who shall maintain their wives and children?”34 Over four days, the Commons checked the bishops. They excised the title of the government’s bill and tightened its language; so many offenses were required to run afoul of the statute that only the most obstinate sectary ran the risk of its penalties. At eight o’clock, on the evening of April 5, the government’s bill had been defeated, and the Commons directed that a new bill be drafted. At dawn on April 6, the government counterattacked. “Early and secretly,” Barrow and Greenwood were carted back to Tyburn and hanged. “The executions proceeded through the malice of the bishops to the Lower House,” it was reported.35 Later that morning, as the Commons assembled—likely taking in this news—Sir Thomas Heneage added a warning: that the Lords had been offended at the rejection of their bill, and it would be “a thing safest for us and meetest” to confer with the Lords. Conferring with the Lords meant compromising with the government. This time, the Commons quickly approved such negotiations. Nicholas Fuller called for striking out the title of the Lords’ bill: “No man spake for it [and] off went the head of it at one blow.” Very narrow terms were spelled out to define the obstinate recusant. “The judges who it seemed drew the bill would have maintained it, but it could not be with good reason so the bill was altered in all points.”36 The Lords, and the government, indulged the Commons, willingly adopting most of their amendments; the government was confident, it 34

Hartley, Proceedings at 3: 162–63. Id.; Neale, Elizabeth I and Her Parliaments at 2: 290–91. Some sources place the Commons’ following conference with the Lords on April 5, which would make the executions a cold-blooded epilogue to the legislative session, with Whitgift putting his prisoners to death as soon as they had served their purpose. From April 3 on, the pace of interrogations of imprisoned Separatists intensifies until April 6, when it slows again—suggesting that the pressure was not coincidental. Carlson, “Writings of Barrow and Greenwood” at 502–3. 36 Hartley, Proceedings at 3: 167–68. Neale assigns this debate to April 5. Neale, Elizabeth I and Her Parliaments at 2: 290. 35

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seems, that any bill passed on religious matters could be employed against sectaries.37 The bill, as finally passed, included a proviso which appeared to ensure that church-going husbands of recusant wives could not be fined for allowing their wives to live in the same household. Diary reports indicate that the Commons passed the bill, with this proviso, on exactly this understanding—and without knowing that Chief Justice Anderson had deliberately inserted this clause precisely so that the judges could twist this language and allow husbands to be fined in these circumstances. The Commons’ legal advisors were “charmed by some great men that they should not discover it.” After Parliament ended, the judges promptly ruled that the statute allowed a husband to be fined for his wife’s recusancy. All evidence seems to confirm that Anderson played a crucial, duplicitous role. Robert Cecil had the doors of the Lower House locked to ensure that the Members would wait out the committee-work. We were content [a Member wrote] to yield to anything, so we might rise, for it was past three ere this was concluded and ended. . . . A great many of us caught such a faintness there with so long fasting, having neither meat in our bellies nor wit in our heads, that we shall not (I doubt me) be able to make a wise speech while we live.

However jolly the mood, with the Commons “merrily” debating a bill on brewers to pass the time, the pressure was palpable. At the end, the government pressed hard to keep one phrase, a term which brought Puritans as well as separatists within the sweep of the law. No Member spoke against the bill.38 After three in the afternoon, on April 7, the Lords’ bill passed. The Commons’ doors were unlocked. The resulting bill, when it received the queen’s assent three days later, marked a turning-point: the first time a Parliament had legislated more harshly against Protestant sectaries than against Roman Catholics. “To describe it as a revolution in parliamentary policy is no exaggeration,” commented John Neale, “and undoubtedly its inspiration came from the Whitgift party, whom Puritans repeatedly accused of preferring Catholics to ‘good’ Protestants.”39 And yet, some silent compromise had been struck. Via a singular set 37

Hartley, Proceedings at 3: 168–69; Neale, Elizabeth I and Her Parliaments at 2: 293–94. Hartley observes that “objections to the bill were articulated by members as lawmakers, not just as anxious Protestants.” T. E. Hartley, Elizabeth’s Parliaments: Queen, Lords and Commons 1559–1601 at 98–99 (Manchester UP 1992). 38 Neale, Elizabeth I and Her Parliaments at 2: 292. 39 Id. at 2: 297.

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of coincidences, the deeply resented bill on religion had marched step by step through Parliament with a bill which was peculiarly calculated to win the Commons’ approval: a measure confirming title to former monastic lands. This bill had appeared suddenly on March 30, in the same breath as the government’s demands that the Lords’ bill on religion be passed. Promptly on the morning of April 8, the morning after the religion bill was approved, the bill reappeared again, reported back from committee, the first item of the Commons’ business. The bill had been drafted to thwart concealment claims. Concealers had taken advantage of any instance where a landowner’s title was vague or imperfect; the bill reversed the situation, giving the landowners full benefit of any record in their favor. If studied closely, the bill seemed to apply particularly well to the dispute over the lands of Norwich’s dean and chapter.40 The anti-concealment bill, this record strongly suggests, was the quid pro quo for the government’s bill on religion. It offered much to the Commons: security for Members’ lands, security for constituents’ lands, a coup to be trumpeted, a boon to balance high taxes. It was offered to the Commons precisely when it could sweeten a compromise on the religion bill and lighten the mood at the end of Parliament. These worldly benefits, from the government’s perspective, were the price of strengthening the bishops’ spiritual authority. Several “chief concealers” desperately tried to stop the measure. Most notably, they included Sir Thomas Sherley, a prominent member of the concealment syndicate which was claiming the lands of the Norwich dean and chapter. Sir Thomas offered a proviso which would have preserved his rights to disputed Norfolk lands. His proposal, and the other concealers’ amendments “were in great scorn rejected.” The bill passed “with a very frank and free Aye,” a diarist wrote, “for it was counted the most beneficial bill that came this Parliament into the House, and a bill of that price as it alone was worth our three subsidies.”41 40 Some lawyer in a position of authority—unknown, but apparently familiar with the Norfolk litigation—had penned a broad safe-harbor provision for any landholder who could show that his holdings were reflected in “any charge in any auditor’s book” even if records were murky as to the dissolution of the specific monastery which had owned the lands in question. Hartley, Proceedings at 3: 166 (emphasis supplied). This was precisely the issue framed by the Norfolk controversy. 41 Hartley, Proceedings at 3: 169–70. Sir Thomas was one of the most notorious concealers claiming an interest in the dean and chapter lands, and the entire Sherley family manifested a tireless affinity for self-promotion and personal aggrandizement. D. W. Davis, Elizabethans

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Coke’s Success as Speaker As Speaker, Coke may have lacked the experience to moderate, to minimize friction with statesmanship and procedural sleight-of-hand. “His parliamentary experience was light: one session only,” Neale observed. “Probably the change of atmosphere in 1593 owes something to this fact, for Coke’s learning, self-confidence, and domineering character rendered him insensitive to subtleties.” Coke himself seems to have sensed this. “If I be round in [what] I say . . . it is my fault,” he told his colleagues in the Lower House. “I cannot speak as mildly as some, but my manner is, that [what] I speak is sharply” put.42 Coke regularly led the Commons as the government directed. He “subtly put” and “beguiled” the House with the crucial questions on legislative intention.43 He drew tetchy distinction between continuing a bill’s consideration and committing a bill twice.44 When the Councillors sought a conference on their subsidy bill from the Lords, Coke had directed a voice vote twice, even though the Noes consistently prevailed. He then allowed the Councillors to demand a division of the House, on which they lost yet again.45 Perhaps because he was domineering, Coke often led in developing new procedures for the Commons. When discussions grew heated, he imposed order; he “propounded it as an order of the House in such a case for him to ask the parties [for] which side they would speak, and that the party who speaks against the last speaker is to be heard first.”46 He offered new explanations for existing practice (or, perhaps, to instruct new Members)—for example, on the procedure followed when the Commons divided to tally a close vote. In such cases, the Ayes who favored the bill left the chamber, while the Noes stayed in their seats. The reason, Coke explained, was that “the inventor that will have a new law is to go out and bring it in; and they that are for the law in posses_____ Errant: The Strange Fortunes of Sir Thomas Sherley and His Three Sons (Ithaca, NY: Cornell UP 1967). 42 Neale, Elizabeth I and Her Parliaments at 2: 248; Neale, Elizabethan House of Commons at 362. 43 Neale, Elizabeth I and Her Parliaments at 2: 312; Neale, Elizabethan House of Commons at 382; Hartley, Proceedings at 3: 124. 44 Neale, Elizabethan House of Commons at 383; Hartley, Proceedings at 3: 139 (the bill on strangers). 45 Hartley, Proceedings at 3: 95. 46 Hartley, Proceedings at 3: 111.

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sion [i.e. in existence] must keep the House, for they sit to continue it.”47 Another morning, “perceiving some men to use private speeches together,” he reprimanded them, declaring that “it was not the manner of the House that any should whisper or talk secretly for here only public speeches are to be used.” Coke showed a martinet’s zeal in ensuring that no unauthorized person penetrated the sanctum of the Commons—as the Order and Usage directed that any Speaker do. During this parliament, two outsiders were found within the House. One was John Legg, a servant of the Earl of Northumberland. It must have seemed suspicious that a Catholic sympathizer should be present during a discussion of preparations for war with Spain. (This was the same morning that the other men had been whispering.) Later, the Commons found another interloper. “Matthew Jones, gentleman, being found sitting in the House, and no member of the same, was brought to the bar, and there being charged by Mr. Speaker . . . humbly excused himself by ignorance; and appearing unto the House to be a simple, ignorant old man, was upon his humble submission pardoned.”48 Broader shifts in parliamentary procedure were also under way place during Coke’s time as Speaker. Increasingly, the work of the House was done by extraordinary committees. These could be very large, so large that they took over the floor of the Commons. (One included all Privy Councillors, all the Commons’ serjeants-at-law, and sixty further Members.) At one long committee session, when the committee on supply proved as badly divided as the Commons, Coke presided from the Speaker’s chair, as if the House itself were still in session. The parliamentary innovation of the committee of the whole, with its streamlining of procedural requirements, could be glimpsed on the horizon of such experiments.49 In one area, however—orchestrating a resolution to Fitzherbert’s privilege claim—Coke showed considerable subtlety and moderation. The case invited constitutional debate, appearing to pit the established rights of Members against the overriding power of the queen. Coke avoided needless conflict, ably mediated the interests of the Commons and the crown, and made possible an eventual compromise, through a blending of lawyerly analysis and political deflection. 47

D’Ewes at 487. Hartley, Proceedings at 3: 97, D’Ewes at 511. 49 Neale, Elizabethan House of Commons at 363–65; see Dean, Law-Making and Society at 5–33. 48

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Coke assured his listeners—those in the Commons, those outside in the court—of both his loyalty and his authority. I desire that I may be heard a word, not that I have any voice or assent to give, though I am of the House, but because I am a servant to the House and have somewhat to speak that appertaineth to my duty and place, which I desire to have leave to utter. For my speech shall not tend to meddle in deciding of the question, but only to inform the House my knowledge and to do that duty which I think belongeth unto myself. . . . It hath been my manner since my first practice to observe strange learnings, especially such way as appertaineth to the law, as this of the privilege of this House. Therefore I will inform what I have learned for I will speak nothing of my own but what I have learned.50

With a rhetorician’s precision, Coke dissected the overall claim of privilege into two questions: first, whether Fitzherbert was actually a Member of the Commons, and second, if so, whether he could rightly invoke a Member’s privilege against arrest. Coke vigorously asserted that any man returned by the electors was lawfully a Member, “out of all doubt.” He forcefully asserted the claims of the Commons as a constitutional body. This gratified the Commons. Such arguments meant brushing aside consideration of the private steps taken by the queen to prevent outlawed Members from taking their place in the Commons, by her private command that the Steward bar them from taking the oath. He personally would obey “any commandment of her Majesty’s, (knowing them to be great and reverent),” Coke asserted, but the queen “sent no such commandment to the House.” This flattered the queen and left unchallenged her authority to issue such commands. Coke tutored the Commons on the procedures needed to investigate the matter—how two writs would be needed, a writ of privilege to assert the defense and a writ of habeas corpus to bring Fitzherbert and the sheriff before the Lower House. This cleverly stepped back from confrontation: faced with calls for immediate action, Coke was mapping out a discouraging, complicated course of action which could only be taken in a doubtful future. With all parties respectfully mollified, with so many variables worked into the calculus, Coke shifted the Commons’ attention from issues to facts. He urged that Fitzherbert not be released because the sheriff had not received the election return—and thus had lacked notice that Fitzherbert was entitled to a Member’s privilege—on the morning when the 50

Hartley, Proceedings at 3: 89–90.

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arrest was made. This must have appealed to all parties at Westminster: they could decide a narrow question, rather than open broad constitutional debates. Conveniently, any blame was shifted back to Staffordshire: the Commons could criticize the sheriff for not timely apprising himself of the election results, or criticize Fitzherbert for waiting too long to take advantage of the loophole in the debt laws. All parties could agree on the queen’s right to collect so large a debt. In the end, it was on such facts that the decision turned. When the Commons finally heard Fitzherbert’s claims, they denied him the privilege.51 Even the recusant community could claim some benefit from the legislative session. During the debates on Fitzherbert’s case, when the sheriff who had arrested Fitzherbert finally appeared before the Commons, he was shadowed by a sinister, hostile character assassin: Richard Topcliffe, Topcliffe the torturer, notorious for his cruelty toward captured priests. Topcliffe addressed the Commons on Fitzherbert’s behalf. He hated the Catholic faith, he knew how to make false accusations, and now—attacking the sheriff—he summoned for the Commons a horde of spectres and hobgoblins from his inquisitor’s underworld. He denounced the sheriff for receiving priests, contacting Catholic exiles, making his house a resort of traitors. He spoke of the sheriff ’s malice and insinuated that, were Fitzherbert not soon released, he might be harmed in custody. Such slanders and scare tactics had worked for Topcliffe in the Parliament of 1586. This time, they were ruled out of order: “But of these things the Speaker would not give him hearing,” it was reported.52 Topcliffe and Coke would cross paths again, as each investigated traitors; the security of the realm involved such alliances of necessity. But when Topcliffe was ignored, when an Elizabethan Speaker of the Commons ruled against the airing of anti-Catholic invective, however cramped the enclosure of St. Stephen’s Chapel, the Commons could sense a changing breeze. Relying on strange learning, especially in legal history, was an integral part of Coke’s strategy. Coke had approved the anecdote of the Commons and Henry IV. Looking further into the past, he had found Parliaments like those of his own day. Queen Iné of the West Saxons had summoned one, intending “to consult of great and weighty matters”; her aldermen prefigured the Lords, her “wisest commons” the burgesses and 51

Neale, Elizabeth I and Her Parliaments at 2: 315–16; Hartley, Proceedings at 3: 89–92. Hartley, Proceedings at 3: 129; Neale, Elizabeth I and Her Parliaments at 2: 316.

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knights of England’s shires, her “fatherhood” the Anglican bishops.53 The Commons’ position as a separate house of the legislature, Coke also traced to the distant past. At first we were all one House and sat together, by a precedent which I have of a Parliament holden before the Conquest by Edward the son of Etheldred. For there were Parliaments before the conquest. This appeareth in a book which a grave Member of the House delivered unto me, which is entitled Modus Tenendi Parliamentum: out of the book I learn this, and if any man desire to see it I will show it him. And the book declareth how we all sat together, but the Commons sitting in presence of the king and amongst the nobles disliked it, and found fault that they had not free liberty to speak. And upon this reason that they might speak more freely, being out of the royal sight of the king, and not amongst the great lords so far their betters, the House was divided and came asunder.54

These suggestions were unimpeachably conservative. Coke quoted this history to defend a time-honored privilege rather than to break new ground—in discussing Fitzherbert’s rights as a Member rather than to justify debate on religious laws or hesitation in voting a subsidy. His historical conclusions were thoroughly conventional.55 Nonetheless, however conservative Coke’s tone, the tendency of his thinking was radical. As Coke well knew—as Wentworth and Morice and other imprisoned Members could have testified first-hand—the Tudor Commons spoke only as freely as a Tudor monarch allowed. To link the idea of free debate to an established privilege of the House was subversively progressive. To the crown, Coke had provided benefits which were immediate and tangible. Coke had protected the queen’s income from the sale of export licenses, from which the crown gained as much as £20,000 a year, when a bill had been introduced to prohibit the export of ordnance. Under his leadership, the Commons had also confirmed the attainder of his past client, Sir Francis Englefield. Legislation had been passed which would 53

Neale, Elizabeth I and Her Parliaments at 2: 319–20; Hartley, Proceedings at 3: 170–71. D’Ewes at 515; Hartley, Proceedings at 3: 160–61. Either Coke or the diarist who reported this speech must have confused two works, the Modus and John Hooker’s Order and Usage. Snow, Parliament in Elizabethan England at 88–91. 55 Arthur Hall was expelled from the Commons, during this same Parliament, for having brashly asserted that the Commons lacked such a long history and that Parliaments rather had been summoned by the crown principally to ensure that taxes could be effectively and expeditiously agreed to—conclusions which the Commons found insulting and unacceptable, however close they may have come to the conclusions later drawn by Frederic Maitland. Hartley, Proceedings at 3: 153. 54

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allow the queen to tender a ring to Sir Francis’ nephew and thereby confiscate lands covered by a previous conveyance which had been made voidable on the ring’s delivery. At the same time, Coke must also have been glad to do Trinity College a favor, regarding a measure introduced to allow the college to sell monastic lands (which its previous statutes did not allow).56 By the end of the legislative session, it was clear that Coke had spoken to good effect. His rulings might be contentious, but he had never lost control of the assembly. When he delivered the queen’s warning, debate on Morice’s proposals stopped. Members allowed him to prescribe rules and took careful notes of his arguments from legal history. By contrast, Francis Bacon, during the debates on the subsidy, lost his patrons’ trust and permanently harmed his own reputation. Without consulting either the queen or his uncle Lord Burghley, Bacon rose to volunteer an unappetizing compromise, a plan which offered the queen less than she sought, while simultaneously demanding that the populace pay more than they were willing. Elizabeth did not like surprises. Thereafter, the government used Bacon without fully trusting him. No such missteps marred Coke’s record as Speaker.

The End of the Session By April 10, Parliament had finished its work. Coke and the Commons waited through the afternoon for the queen to arrive. Finally she did, and by six o’clock, Coke had begun his speech. He flattered the queen and her “greatest and most ancient court,” “the High Court of Parliament,” with the example of Queen Iné. He thanked the queen for her general pardon; with false modesty, he asked personal forgiveness for missteps in the Commons. He praised the bill on religion and the bill on monastic lands, “the most honorable and beneficial laws that could be desired.” He quoted Virgil and likened the assembly to “the sweet commonwealth of the bees.” The little bees have but one governor whom they all serve, he is their king quia latera habet latiora, he is placed in the midst of their many habitations ut in tutissima turri. They forage abroad sucking honey from every flower to bring unto their king . . . the drone and dorr bee they drive from out the hive. . . . Your Majesty is that princely governor and noble queen whom we 56

Dean, Law-Making and Society at 74, 219, 252.

The Parliament of 1593 all serve. Protected under the shadow of your wing we live and we wish that you may ever sit upon the throne over us.57

Finally, the queen addressed her Parliament. It was evening now, almost eight o’clock; Elizabeth spoke in the warm glow of candle-light. The gathering was wholly hers. Burghley and Knollys were there who had served her father fifty years before; Ralegh and Drake and the country squires who led the trained-bands; godly gentlemen who expected much from her; a sensitive philosopher; a tearful lawyer. Men who across two generations had ventured with her their fortunes, in every sense of the word. Elizabeth spoke with the intelligence of her father and grandfather and the stoic maternal calm which was hers alone. She recalled the Armada and warned her people to be vigilant. She promised to use wisely the taxes which her Commons had granted her. Even our enemies hold our nature resolute and valiant; which, though they will not outwardly show, they inwardly know. And whensoever the malice of our enemies shall cause them to make any attempt against us, I doubt not but we shall have the greater glory, God fighting for those which truly serve Him, with the justness of their quarrel. . . . Now I must give you as great thanks as ever prince gave to loving subjects, assuring you that my care for you hath, and shall exceed all my other cares of worldly causes, whatsoever.58

As the candles guttered, the queen yielded the royal assent to twenty-nine bills. She vetoed only one, the measure on saltfish and herring.59 It had been a productive session.

Conclusion Many years later, after sitting in four further Parliaments, Coke reflected on the qualities of a legislator. Every Member of Parliament, he wrote, being a counselor, should have three properties of the elephant; first, that he hath no gall; secondly, that he is inflexible, and cannot bow; thirdly, that he is of a most ripe and perfect memory: which properties . . . ought to be in every member of the great council of Parliament. First, to be without gall, that is without malice, rancor, heat and envy . . . . Secondly, that he be constant, inflexible, and not to be bowed, or turned from the right, either for fear, reward, or favor, nor in judgment respect any person. Thirdly, of a ripe 57

Hartley, Proceedings at 3: 171. Neale, Elizabeth I and Her Parliaments at 2: 321–23. 59 Hartley, Proceedings at 3: 174. 58

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The Parliament of 1593 memory, that they remembering perils past, might prevent dangers to come. . . . Whereunto we will add two other properties of the elephant, the one, that though they be maximae virtutis, et maximi intellectus, tamen gregatim semper incedunt, of greatest strength and understanding, yet they are sociable, and go in companies . . . Sociable creatures that go in flocks or herds are not hurtful, as deer, sheep, &c. but beasts that walk solely, or singularly, as bears, foxes &c. are dangerous and hurtful. The other, that the elephant is philanthropos, homini erranti viam ostendit, and these properties ought every parliament man to have.60

The playfulness of the passage was deceptive. There was a touch—more than a touch—of self-mockery. Coke’s admiration for the elephant suggested that he prized his own deep memory and celebrated rectitude, and recalled with pride how he himself might have shown wandering men the way. The cold-eyed view of the solitary predator, written during the early reign of Charles I, obliquely criticized any king who chose to rule alone. Yet Coke may have looked back forty years when he penned these lines, to that wintry afternoon of his own disabling speech. He had spoken then of laws so great and so many that they might be called elephantine leges. If Parliament-men should have the qualities of the elephant, it was no wonder that they should pass so many statutes, and so great, that they could be published only in the massive volumes, larger than folios, which booksellers knew as elephantine.61 Coke’s playful suggestion that the English Parliament’s statutes were elephantine laws—beyond its obvious joke about unwieldy legal instruments—may also pun on the elephantine sheets, i.e. tablets of ivory, on which the Roman senate and imperial powers were said to record their decisions. Certain qualities which Coke showed in the Parliaments of the 1620’s first showed themselves in the spring of 1593. These included a willingness to find middle ground, a lawyerly inclination to juggle procedure and substance, and a zeal for historical precedents. The strength of Elizabeth’s regime rested on her servants’ willingness to compromise their own beliefs to do her bidding. Lord Treasurer Burghley, long the champion of England’s evangelical believers, pressed for the passage of laws which he must personally have distrusted. Robert Cecil, who spoke for the first time in the Parliament of 1593, began at this 60

4 Inst. 3. Elephant-paper sheets measured 20 x 32 inches, double-elephant sheets 28 x 42 inches. The most familiar example of books published in this format are those of John James Audubon, printed in double-elephant to allow a life-size portrait of the flamingo. See the Oxford English Dictionary. 61

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time to make the demands on his dwarfish, hunchbacked frame, which would kill him before he grew old. Most members of the Commons had never made protest part of their agenda; those who may have considered it, in this parliament, generally chose in the end to be loyal rather than independent. Robert Beale made an elliptical, rueful comment on the weakening of the chamber’s ardor. The “elections of divers knights and burgesses had proceeded,” he observed, “with no such readiness and desire as wont to be in former times.”62 All had hesitated or declined to rigorously follow principle—Coke with the rest. Yet there was another side to the compromise. By developing procedures, Coke helped give the Commons the continuity and regularity necessary for a sophisticated legislature. Even more important, Coke’s ventures into legal history encouraged the Lower House to boast of its lineage and insist upon its powers. His story of King Edward’s parliament portrayed the Commons as legislators who knew their own minds, who convened their own sessions the better to enjoy their own counsel. His anecdote of Queen Iné and her wisest subjects, deliberating upon great and weighty issues, gave representative government an impressive lineage and sweeping authority. “This High Court of Parliament,” he would inform his own queen, “is the greatest and most ancient court within your realm.”63 His history might be factually insupportable; that only made it the more politically assertive.

62

Neale, Elizabeth I and Her Parliaments at 2: 245. Id. at 2: 319.

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chapter 14

The Queen’s Attorney and Cecil’s Man

During the last years of Elizabeth’s reign, Coke was employed as a lawyer for the state, as Solicitor-General and Attorney-General. His duties continually involved him in criminal investigations and trials, as well as the numberless workaday tasks of administration. For every traitor he interrogated in the dungeons of the Tower, there was a document he processed or a patent he drafted. Coke’s practice shaped his writing: in his Third Institute, he devoted more pages to the high uncommon crimes of treason and heresy than to the everyday offenses of homicide, rape, robbery, burglary, larceny and theft. The prosecutions brought Coke fame (or infamy); it was the everyday legal work which finally made his fortune. Frequently, both the criminal proceedings and the bureaucratic legal work were freighted with political significance. Coke came to the post of Attorney-General as an ally of Lord Burghley and Sir Robert Cecil, and no government servant upheld more loyally what was called the regium cecilianum. Coke’s years in this office were the same years in which Robert Cecil and Robert Devereux, Earl of Essex, fought steadily to outmaneuver the other, each seeking to control the government of England—and, it went without saying, the succession to the English throne. The contest between Cecil and Essex overshadowed and influenced Coke’s personal rivalry with Francis Bacon. It also involved the fates of men less well known to history: spies, soldiers, priests, and a royal physician.

The Queen’s Attorney and Cecil’s Man

Essex, Bacon, and Coke In April 1593, almost as soon as the Commons had left Westminster, Francis Bacon resumed his pursuit of political office. Another death at the top had opened a gap in England’s legal hierarchy: Sir Gilbert Gerard, Master of the Rolls, had died in February. It could be assumed that Attorney-General Egerton would move up to fill this vacancy. Bacon resolved to seek once more the post of Attorney-General. He lobbied his uncle and cousin; Burghley and Cecil declined to commit themselves. By July, Bacon had turned, more hopefully, to the Earl of Essex. Here he found greater encouragement. Essex promised emphatically, “most friendly and most freely,” to set up “his whole rest of favor and credit for [Bacon’s] preferment before Mr. Coke.”1 Essex bore his own grudge against Coke. The earl’s sister Dorothy, wife of Sir Thomas Perrot, claimed jointure rights in certain Welsh estates which the crown claimed were its own, forfeited by the attainder of her father-in-law Sir John Perrot. Coke was the lawyer for the crown. That did not endear Coke to Essex. Nor would Essex have loved the lawyer who drafted the royal favors on which his career depended—his monopoly of sweet wines, most notably. Such services to the crown “highly provoked” the earl. Only “his lordship’s authority and wisdom,” wrote Anthony Bacon, who knew how to flatter Essex, could “redress . . . Coke’s intolerable insolency.”2 Bacon knew that, as a candidate for Attorney-General, he would have to seek favor rather than advertise accomplishment. Despite his interest in jurisprudence and law reform, he had never argued a case.3 He had the time to write letters, to brood over news which Essex sent him, to plot approaches to the queen. If Coke did the same—as he likely did—the correspondence has not survived. Coke’s strength, in any event, lay in the opportunity to demonstrate yet again his capacity for work. He was al1 Lisa Jardine & Alan Stewart, Hostage to Fortune: The Troubled Life of Francis Bacon at 147 (London: Victor Gollancz 1998), quoting Anthony Bacon’s letter to Essex, 18 July 1593. 2 T. Birch, Memoirs of the Reign of Queen Elizabeth at 2: 291 (1754); Anthony Bacon to Essex, 6 March 1596–97. Dorothy received a stipend in lieu of any jointure, but apparently thought this compromise unhappy. See Mark Nicholls, Investigating Gunpowder Plot at 89, n.26 at 92 (Manchester UP 1991); Paul Hammer, The Polarisation of Elizabethan Politics: The Political Career of Robert Devereux, Second Earl of Essex 1585–1597 at 275, 281 (Cambridge UP 1999). 3 Bacon arranged to argue his first case in February 1594. Since he represented Sir Thomas Perrot in a suit relating to Sir John Perrot’s attainder, it is likely that Essex fed him the brief. When Bacon quickly returned to the courtroom, to argue a second case, Essex promised to attend. Jardine & Stewart at 156–58.

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ready pulling hard on the government’s behalf. In May 1593, he helped question John Penry. He brought actions where two thousand of the queen’s trees had been converted into charcoal, where a petty jury had too easily acquitted a defendant who had bought cattle in suspicious circumstances, where tithe rights were at issue.4 In mid-October 1593, Essex approached the queen on Bacon’s behalf. Elizabeth replied, crossly, that even Bacon’s uncle placed him second on the list of candidates. The only doubt about Coke, she continued, was that some thought him too young to be Attorney-General (at forty-one), while Bacon was even younger, only thirty-two. Essex insisted that Bacon was nonetheless the better man, “as if Mr. Coke’s head and beard were grown gray with age, it could not counterpoise the other disadvantages.” This failed to sway the queen.5

The Case of Doctor Lopez Doctor Rodrigo Lopez was a prominent physician in London. Born in Portugal, of Sephardic stock, he had come to England by 1559, established himself at St. Bartholomew’s Hospital, and won a name for careful and innovative medical practice. His patients had included Leicester and Walsingham, more recently Essex, and in 1586 he was named the queen’s physician-in-chief. Lopez was a communicant of the Church of England, but those who envied him ascribed his success to “a kind of Jewish practice.”6 He had prospered in England almost thirty years when, in 1589, he fatally involved himself with emigré conspiracy—with the cause of Don Antonio, pretender to the crown of Portugal. At Burghley’s behest, Lopez opened channels with contacts in Spain and Flanders, and thereby placed himself in the vulnerable position of the double-agent.7 4 Albert Peel, “The Notebook of John Penry,” Royal Historical Society (3rd Series) 67: vii (1944); Queen v. Ingersall, Cro. Eliz. 310 (1594); Queen v. Edwards, Cro. Eliz. 326 (1594); Sherburn’s Case, Cro. Eliz. 306 (1594). One case reveals Coke working under pressure; he had entered a plea on a defendant’s misnomer, he told the judges, only to gain time. Thornhaigh v. Disney, Cro. Eliz. 312 (1594). 5 Jardine & Stewart, Hostage to Fortune at 151–52. 6 Where the government expected trouble from Catholics or Puritans, the unassuming observance of Judaism was unlikely to draw scrutiny. Dr. Hector Nuñez moved for decades in the same circles as Lopez. No one seems to have noted that Nuñez kept track of Jewish festivals, or that his will, otherwise drawn up in impeccably Protestant terms, omitted all mention of Jesus Christ. Charles Meyers, “Debt in Elizabethan England: The Adventures of Dr. Hector Nuñez,” Jewish Historical Studies 34: 125–40, 137 (1994–96). 7 The fullest and most recent discussion of the Lopez Affair is Chapter Two of David S.

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Among Don Antonio’s supporters, Lopez knew and worked with Manuel de Andrada and Esteban Ferrera da Gama. Andrada and da Gama were not the least ambitious of the Elizabethan bankrupts and criminals who contrived to make a career of spying. Boasting of their links to Lopez, these free-lancers offered vague “services” to Spanish officials, demanding to be paid first in cash. The Spanish carefully probed their offers for substance; the English watched them even more warily. In 1591 Andrada was arrested by the English; Lopez obtained the suspect’s freedom; and the queen’s physician continued to correspond with the ministers of Spain. Finally, bluntly, the Spanish asked if Lopez would assassinate the queen, and he neither disavowed the project nor ended communications. No money seems to have been paid, but Lopez received by proxy the Spanish king’s abrazo, the royal embrace (a costless, deniable sign of favor). He also received a ring, set with a ruby and a diamond, valued at a hundred guineas. That ring he presented to Elizabeth, without telling her its provenance. So affairs continued until late 1593, when the Earl of Essex denounced Lopez as a traitor. The earl’s political ambitions had led him to carve out a niche in the area of foreign intelligence. Paul Hammer has written: There was a natural affinity between the role of favorite and intelligence, for both involved the sharing of secret confidences and a zealous concern for the queen’s safety. However, Essex’s participation in this world of secrets and spies also opened new possibilities for influencing royal policies. The private audiences at which intelligence was imparted to the queen offered Essex the chance to impress her with his knowledge and judgment and to emphasize special subjects of concern without interjection from other councillors. Intelligence therefore became a central feature in Essex’s political endeavors. . . .8

As immediately as possible, Essex needed a spectacular intelligence coup. He seems to have focused closely on Lopez, first as a possible instrument, later as a target. The earl tried to suborn Lopez into spying for him; that failed. He may have tried to frame Lopez, employing an agent provocateur; nothing came of that. However, beginning in October 1593, _____ Katz, The Jews in the History of England 1485–1850 (Oxford UP 1994). The following discussion draws on Katz, as well as previous discussions in the Dictionary of National Biography; Arthur Dimock, “The Conspiracy of Doctor Lopez,” English Historical Review 9: 440–72 (1894); Martin Hume, “The So-Called Conspiracy of Dr. Ruy Lopez,” Trans. of the Jewish Historical Society of England 6: 32–55 (1908); P. M Handover, The Second Cecil: The Rise to Power of Sir Robert Cecil, Later First Earl of Salisbury (London: Eyre & Spottiswoode 1959); and Hammer at 156–62. 8 Hammer at 152.

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certain opportunities came the earl’s way. Da Gama was arrested at Lopez’s house, on suspicion of arranging to poison Don Antonio. Lopez’s neighbor, Gomez D’Avila, whom Lopez used to carry letters to Flanders, was arrested, carrying coded messages. In January 1594, Manuel Tinoco, another Portuguese émigré, was arrested and brought before Essex. With so many culprits in his custody, Essex made his move: on January 21, he took Lopez into custody. At first, the doctor held off the inquisitors. Questioned by both Essex and Cecil, with Burghley sitting in as well, the doctor denied any misconduct. None of Essex’s suspicions could be proven. Returning to the court ahead of Essex, Cecil informed Elizabeth that her favorite was dealing unjustly with her physician. The queen was furious. She upbraided Essex for hare-brained meddling in her affairs, calling him “a rash and temerarious youth.” Essex was equally furious; he retired to his private chamber, slamming doors. Two days later, when he resumed the inquiry, he raised the stakes. The matters on which Lopez had been questioned, so far, had involved a plot against the Portuguese pretender. Now, for the first time, Essex announced that he was investigating no less than a plot to assassinate the queen. By January 29, 1594, Lopez was in the Tower. In the same months that Essex and Cecil investigated the Lopez affair—sometimes to the same end, sometimes at cross-purposes—the two rivals were at odds over the Attorney-General’s position. Essex continued to favor Bacon’s suit, while Cecil remained solidly for Coke. On January 30, 1594, the day after Lopez was sent to the Tower, the rivalry between Coke and Bacon received a peculiar prominence. On the afternoon of January 30, returning from the Tower to the Strand, the Earl of Essex and Robert Cecil shared a coach. Essex had spent a day haranguing Lopez, to no effect. His men had ransacked Lopez’s house without producing further evidence. At this point— peculiarly—Cecil changed the topic. “My lord,” he ventured, “the queen has resolved, ere five days pass, without any further delay, to make an Attorney-General. I pray your Lordship to let me know whom you will favor.” Essex replied that he favored Bacon. “So raw a youth,” Cecil demurred, had no qualifications for the post and no hope of succeeding. “If at least your lordship had spoken of the Solicitorship, that might be of easier digestion to her Majesty.” Essex’s response was angry:

The Queen’s Attorney and Cecil’s Man Digest me no digestions. The Attorneyship for Francis is [what] I must have; and in that will I spend all my power, might, authority, and amity, and with tooth and nail defend and procure the same for him against whomsoever; and whosoever getteth this office out of my hands for any other, before he shall have it, it shall cost him the coming by.9

Displaying a ferocious energy, Essex pushed hard. The earl and his men were holding several prisoners, virtually all of Lopez’s contacts and go-betweens. Interrogated separately, played against each other, sometimes threatened with torture, the prisoners quickly ascribed to each other plots to burn the English fleet and murder the queen. Both Tinoco and Da Gama confessed that Lopez had promised to take Elizabeth’s life with poison. Lopez may have been tortured; he may only have been threatened with torture. He may have admitted planning to poison Elizabeth; he may have admitted only promising to poison Elizabeth, in order to cozen the King of Spain out of 50,000 escudos. The amount was too large to be explained. It shocked and impressed Coke, who emphasized it in his personal notes. “50,000 crowns que amount to 15,000 in money dangleterre,” he wrote in his personal notebook.10 Outside the Tower, the Lord Admiral’s Men were reviving “The Jew of Malta,” and past events had new, sinister echoes. It was remembered that, about the time he received the Spaniards’ embrace and a promise of payment, Lopez had asked Elizabeth whether it would be wrong to cheat a cheater. It was considered significant that he had not told the queen where he had obtained the ruby-and-diamond ring which he had given her. In the end, Cecil was convinced that Lopez should die. He was in at the death, and Coke came in with him to help present the state’s case. It was Coke’s first treason prosecution, and he prepared carefully. He wrote in two columns, in unfading black ink, with a broad left margin to allow for revisions. He crossed out phrases, added phrases, drew boxes around paragraphs. He praised the queen for defending Christianity against the Pope and for defending her realm against the ambition of the king of Spain. The crown’s case proceeded against Lopez, he declared, not only according to English law, but “by all laws both divine and human.” Never forgetting the question of proof, he reiterated each act of Lopez’s treason—the meetings, the perfidious letters, the defendant’s nervousness, his plans to flee beyond Christendom, to Constantinople. 9

Handover, The Second Cecil at 116. BL Add. MS 6686 fo. 84r (pencil foliation), 78r (ink foliation).

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From the Old Testament he brought out the story of another ruler and a duplicitous intimate, the story of Ahasuerus and Haman. Coke could not have missed the irony in this juxtaposition, and let the story of Queen Esther bite against a prisoner descended from her people.11 The evidence might be doubted, but the ineradicable suspicion proved fatal. Lopez was convicted of treason and hanged in June 1594.

Behind the Scenes Lopez’s fate depended not only on the facts of his dealings with Spain, but on the shifting balances of English politics. In his role as double-agent, Lopez had served Lord Burghley. Robert Cecil had reason to defend the doctor, his father’s follower, at least until Lopez’s guilt was proven or his ruin became inevitable. Moreover, Essex’s hunt for spies threatened a far more important ally of the Cecils. This fact may have helped determine Lopez’s fate. In 1591, when Andrada was first questioned, he had implicated not only Lopez, but also the financier Sir Horatio Palavicino. To the Cecils, Palavicino mattered more than Lopez. Like Lopez, Palavicino had trafficked with Spanish agents, and like Lopez, he was foreign-born. This made him vulnerable: sentiment stirred up against a perfidious Jew might easily be turned against a duplicitous Genoese. However, Sir Horatio was infinitely more accomplished and useful than Doctor Lopez. Lopez had dabbled in spying for less than three years, blundered, compromised himself, betrayed his queen, and ended by getting himself caught. Sir Horatio had spent fifteen years stealing letters, spreading false stories, recruiting agents, and floating secret peace initiatives—and 11 P.R.O., 12/248/27, CSPD 3: 445 (28 Feb. 1594). Coke has been unjustly condemned for playing to anti-Semitic prejudice in his prosecution of Lopez. Undeniably, such prejudice played a part in the doctor’s ruin. When Lopez spoke from the foot of the gallows, he asserted that he loved the queen as well as he loved Jesus Christ, which drew mockery from the crowd. However, the harshest comments uttered against Lopez at the Guildhall (“a perjured and murdering villain and Jewish doctor, worse than Judas himself ”) were voiced not by Coke— to whom they have often been wrongly attributed—but by the lead prosecutor, AttorneyGeneral Thomas Egerton. Knafla, Law and Politics in Jacobean England at 20. Like other Englishmen of the era, Coke had been taught to regard Jews with medieval bias. He knew Jews as they figured in chronicle histories and obsolete statutes and in Chaucer. He probably knew that his townhouse in Norwich had belonged to a Jewish family, the Jurnets, before it came as an escheat to King John. Yet while Coke was ready to believe that Jews lived by usury, he equally approved the hanging of Christians who had killed Jews to steal their wealth. V. D. Lipman, The Jews of Medieval Norwich at 27–31, 96–112 (London: Jewish Historical Society of England (1967); 2 Inst. 506–8.

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as matters turned out, he evaded even Essex’s net, and calmly went on to further missions.12 On January 30, when Essex and Cecil talked in the coach, Essex broke off the conversation brusquely—but Cecil had begun by venturing some sort of offer. He had asked Essex not to press Bacon’s suit for the Attorney General’s position—asked Essex to make a concession, to take the other side in a cautiously veiled exchange. January 30 was the very moment at which Essex’s investigation seemed to have struck a dead end. His men had found nothing in Lopez’s house and Lopez had yielded nothing under questioning. Why did Cecil turn the conversation from Lopez to the Attorney-Generalship at this particular moment, the point when Essex’s case seemed weakest? Goading and teasing were hardly Cecil’s style. Rather, he must have sought to strike some sort of bargain which involved both Lopez’s guilt and the vacant government position. Cecil had something he wanted to buy from Essex, Coke’s unopposed appointment as Attorney-General.13 Moreover, Cecil also had something to trade. Lopez’s defenses were weaker than they seemed, because of Andrada’s 1591 confession—of which Cecil knew and Essex did not. Cecil may have been willing to barter this information about Lopez, which Essex needed badly at this point, to shake the earl free from his opposition to Coke. If these conjectures are sound, then Coke’s rise and Lopez’s fall were closely entwined. While Essex was working furiously to prove Lopez’s guilt, Cecil seems to have played a delaying game. If Cecil was shielding Palavicino—and if Coke worked hand-in-glove with Cecil on this, as he did in later treason cases—this would explain the oddly tangential role Coke played in the Lopez case. In the crucial weeks of February 1594, when the inquiry against Lopez reached fever pitch, Coke was otherwise employed. With all of his heavy-handed energy, Coke was pursuing a different group of traitors—developing leads which led away from Palavicino, and into situations which might embarrass Essex.14 12

Lawrence Stone, An Elizabethan: Sir Horatio Palavicino at 231–66 (Oxford UP 1956). The Cecils moved at that very juncture to pursue Coke’s appointment. Later that day, Burghley urged Elizabeth to name Coke Attorney-General and to name Robert Cecil secretary to the Privy Council. 14 This would not have been the first time that Coke found himself running the legal side of a murky counterintelligence operation. In 1588, he had represented John Presthall, ostensibly an attainted traitor, in a lawsuit brought by William Waad, Lieutenant of the Tower. Coke had argued for Presthall that his client’s attainder (not restricted or pardoned) had cost him goods, degrees, and life; as a man dead in law, he was not required to answer Waad’s suit. 13

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The men Coke pursued remain less well-known to history: John Annias, Patrick Cullen, Robert Polwhele. Annias was vaguely linked to Lopez, but his co-conspirators were not. Rather, they were English and Irish soldiers-of-fortune who took their orders from English exiles in Flanders, Jesuits and turncoat commander Sir William Stanley. Coke developed the case in detail. Cullen had planned to shoot the queen with a pistol; Polwhele had resolved to kill the queen as well; their comrades Denis O’Conor and Donell O’Brian were also prepared to murder the queen; another co-conspirator, one Tompson, had prepared fireworks which burned with poisonous fumes. They expected aid from others in England—in particular, they had “great hopes” of Sir Thomas Tresham. From Winchester came odder news, which Coke also followed up. Some £1,800 of church plate had been stolen, by means of “a curious engine,” by Catholic soldiers and sympathizers, Edmund Yorke, Richard Williams, and Henry Young. Using the same modus operandi, the same gang had later attempted a break-in in Whitehall, intending to steal the queen’s jewels and plate; luckily, that had been foiled. Meanwhile, the gang had coined the plate stolen at Winchester within the precincts of Gray’s Inn, in the chamber of Sir Griffin Markham.15 During the winter of 1593–94 the political atmosphere was overcharged with reports of plots and conspiracies. . . . . The Irish soldiers received absolution, and were given to read the story of Judith the Israelitish widow who killed Holofernes, and reports were floating about of Jesuits in London, disguised in gay and fashionable silk doublets, but with hair shirts next to their skin; that Young, Edmund Yorke, and Richard Williams, three of Philip’s pensioners, had been offered by Ybarra [a Hapsburg intelligencer] 40,000 crowns to do the deed; that the priest of Galicia mentioned by Tinoco, who was to cross the Channel in a coal boat, was concealed at Brussels in the ho-

_____ Wade and Presthall’s Case, 1 Leon. 329 (1588). It is not clear how the case ended. In the late 1560's, as a spy for England in the Low Countries, Presthall had been instrumental in kidnaping and returning to England, for trial and execution, Dr. John Story, a former civil lawyer who had been one of Mary Tudor’s harshest prosecutors. Thereafter Presthall seems to have lived in the Tower, appearing on the Tower rolls among Catholic prisoners—as prisoner, resident informer, pensioner, or perhaps content to find advantages in combining all three roles. Alan Haynes, Invisible Power: The Elizabethan Secret Services 1570–1603 at 1–6 (Stroud, Gloucester: Sutton 1992 ed.); Ronald Pollitt, “The Abduction of Dr. John Story and the Evolution of Elizabethan Intelligence Operations,” Sixteenth Century Journal 14: 131–56 (1983); “Miscellanea,” Catholic Record Society 3: 8, 9, 10–16 (1906). 15 CSPD 3: 540 (12 Aug. 1594). See Charles Nicholl, The Reckoning: The Murder of Christopher Marlowe at 244–46 (London: Jonathan Cape 1994); Alan Haynes, The Gunpowder Plot at 24–26 (Stroud, Gloucester: Sutton 1994).

The Queen’s Attorney and Cecil’s Man tel of Fuentes [another Hapsburg officer], and that even in the Fleet prison Romanist suspects were consoled by sprinklings of holy water.16

This welter of rumors concealed several piercing counterblows at Essex. Annias had planned to buy the earl’s favor by giving him a jewel. Yorke, too, had claimed, when he returned to England, that he was seeking service with the earl. Sir Thomas Tresham was a prominent recusant who owed his recent release from prison to Essex’s intervention; young Francis Tresham, Sir Thomas’s heir, was one of Essex’s followers. Sir Griffin Markham, with his chamber at Gray’s Inn, was another Catholic who had cast his lot with Essex.17 Essex was stung by these embarrassing connections—perhaps distracted. He sat in during interrogations, investigating himself what others were saying about him. The earl was reportedly “much moved” by being “falsely charged with that which he never intended.” So observed Hugh Owen, the Welsh Catholic spymaster, choosing this moment to send a personal letter to one of Essex’s own intelligencers.18 With Lopez dead, with Essex’s measure taken, the crisis was past. As the year wore on, the Cecils skillfully rewrote the story of the queen’s physician, the agent whom they had used and defended, as a single chapter of a broader story. Lord Burghley lent his name to a pamphlet, A True Report of Sundry Horrible Conspiracies. In Burghley’s pamphlet, Lopez appeared as only one of the traitors and assassins whom Spain had sent— one figure in a sinister tableau, half-obscured by subtle Jesuits, distant Spaniards, Irish gunmen, and desperate veterans. Coke read the pamphlet and wrote on the title page: “The Lord Treasurer Burghley thought it best to rely principally upon the confessions of the delinquents without 16

Dimock, English Historical Review at 9: 460. As the year wore on, Coke identified more and more traitors. Edward Lingen, questioned by Coke, admitted to piracy and consorting with Jesuits. Father Henry Walpole confessed to landing in Yorkshire. CSPD 3: 489, 513 (27 April 1594; 4 June 1594). 17 Hammer at 158. On Markham’s peculiar career, see Mark Nicholls, “Treason’s Reward: The Punishment of Conspirators in the Bye Plot of 1603,” Historical Journal 38: 821–42 (1995). 18 Id. There may have been fire behind the smoke here. Tinoco, who claimed to have been Essex’s agent, was the only conspirator to plead guilty at his trial, perhaps expecting clemency. Annias managed to escape prosecution and was still alive in the Tower more than a year later. Certainly, members of the earl’s retinue maintained contacts with Irish and English Catholic émigrés. Hammer at 158; Geoffrey Chesters, “John Daniel of Daresbury,” Trans. of the Historical Society of Lancashire and Cheshire 18: 1–17 (1967). Hammer plausibly suggests that this muddling of allegiances may have resulted from a substantial effort by Essex to infiltrate penetration agents into the English emigré communities in Flanders.

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any inference or arguments. This book was never answered to my knowledge, and that is the best kind of publication.”19 The rest of the story, if there was one, was silence. The lawyer and the politician and the financier would have preferred it so. Coke and Cecil resumed the everyday tasks of government. Sir Horatio Palavicino continued buying estates in East Anglia and exchanging letters with merchants on the Continent. And yet there remained a link which one might trace, among the papers and parchment shelved at Holkham, something both innocuous and curious. Near Castle Acre in Norfolk, in countryside where Coke bought up whatever land he could, Sir Horatio had also left his mark. Palavicino had bought from Sir Thomas Cecil, Burghley’s eldest son, the neighboring demesne land and advowson of Westacre. These properties had previously been shuffled among the Howards and the crown and the Gresham family and the Cecils. Currency always changed hands, in these transactions, but other favors were always involved. Sales were made to favor a relative, to reward an ally, to repay a political figure’s embarrassing personal debt. Coke later bought lands at Castle Acre. He dealt with the Cecils—but for whatever reason, papers from the Palavicino lands found their way into the Coke muniments.20 Further research may clarify whether this transaction repaid any obligation which Sir Horatio had covertly contracted to Sir Edward.

Promotion to Attorney-General In the last days of March 1595, Egerton was finally named Master of the Rolls. Elizabeth wasted little time in rewarding her Solicitor-General. On March 24, at a quarter past four in the afternoon, she summoned Coke to her private chamber in Whitehall, and told him that the Attorney-General’s post would be his. Coke wrote that his “cheeks were watered with tears” at the grace she had shown him. The actual appointment was made on April 10, by letters patent presented by Lord Keeper Puckering.21 Coke had the presence to applaud how the queen and her Lord Treasurer traded Latin tags: 19

Conyers Read, Lord Burghley and Queen Elizabeth at 499 (New York: Knopf 1960). Stone, Sir Horatio Palavicino at 271. 21 Vade Mecum at 16; Baker, LPCL at 203. 20

The Queen’s Attorney and Cecil’s Man I well remember when the Lord Treasurer Burghley told Queen Elizabeth, Madame, here is your attorney general (I being sent for) qui pro domina regina sequitur, she said she would have the form of the records altered; for it should be attornatus generalis qui pro domina veritate sequitur.22

This was success; this was honor; this was additional responsibility.23 To be Attorney-General was to oversee all of the Tudor state’s efforts at law enforcement. As chief prosecutor, the Attorney-General was expected to bring all charges against the crown’s enemies. He was also to serve as the crown’s chief lawyer, in any matter of counseling or litigation— whether this involved the royal prerogative or the crown’s rights as landlord. Thomas Coventry, one of Coke’s most trusted friends, put the matter thus: This office is one of the greatest, and largest, concerning the possessions of the Crown, an extraordinary place for the preservation of the king’s royal prerogatives, and inheritances, so that by this diligent care, he may increase them, and by the neglect of his duty, he may more diminish them, than any of his Majesty’s ministerial officers.24

By the patent which appointed him—and that he was appointed by patent was constitutionally significant—the Attorney-General could appear for the crown in any court in the land. Almost exclusively, he appeared in only Exchequer, King’s Bench, Common Pleas, and Star Chamber. Of these, Star Chamber offered the most direct opportunity to put a personal stamp on the law. Star Chamber proceedings were essentially judicial proceedings before the Privy Council—political action masked as law. This court frequently presided over cases which threatened the general peace (riots, unlawful assemblies, slander) or might corrode the realm (corruption, hoarding, threatening royal officers). This expansion of responsibilities—in particular, day-to-day involvement in the processing work of government—promised additional rewards. As G. E. Aylmer has noted, “The Attorney-General was involved in the hearing of most petitions and in the passage of virtually all grants, so his income from fees, gratuities, and presents was princely. He could 22

3 Inst. 79. Kopperman, Sir Robert Heath at 76–105; see also Richard Arthur Swanson, “The Office of Attorney-General in England 1558–1641” (unpublished dissertation, Dept. of History, University of Virgina 1976). 24 BL Stowe MS 159, fo. 28., cited in Kopperman, Sir Robert Heath at 86. 23

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also accept private briefs, an advantage over the judges.”25 The office of Solicitor-General had brought Coke perhaps £1,000 a year; as AttorneyGeneral, he could expect several times that much. Essex and Cecil now joined in urging that Bacon be named SolicitorGeneral. Perhaps exasperated with both sides, Elizabeth left that post vacant for more than a year. By way of condolence, Bacon was named one of the queen’s learned counsel, a position with no clearly defined duties and little predictable reward.26

London, Essex, and Oxfordshire Coke became Attorney-General at a time of particular turbulence. Harvests were going badly. The costs of England’s continuing war with Spain had been increased by the sudden outbreak of rebellion in Ireland. The risks of hard times would tempt England’s government to stretch the law, to make the definition of treason elastic to meet the threat of rebellion and disorder. The apprentices of London, the same unruly young men who would later drive a king out of his capital, were the first among whom trouble surfaced. At the end of June 1595, in the Tower Street ward, some young men threw stones at the warders, were arrested, and were whipped and pilloried on the Privy Council’s orders. Other young men resented their friends’ treatment. Three hundred strong, they gathered outside the Tower, blowing a trumpet and waving a makeshift flag, a cloak at the end of a pole. There was talk of freeing the prisoners, seizing weapons, whipping the mayor to death, and sacking the city, and the crowd resisted violently when the sheriff ’s men arrived to disperse them. The government was worried, so much that a provost-marshal was appointed for London. A special committee of judges was quickly convened. What the apprentices 25 Chantal Stebbings, A Man of Great Knowledge: The Life of Sir John Dodderidge 1555–1628 at 8 (Faculty of Law, Univ. of Exeter 1989); G. E. Aylmer, The King’s Servants: The Civil Service of Charles I at 212 (New York: Columbia UP 1961). In 1616, Francis Bacon estimated that he had earned £6,000 a year from the position. J. Ll. Edwards, The Law Officers of the Crown at 70 (London: Sweet & Maxwell 1964). 26 Jardine & Stewart at 166. Swanson notes that the law officers of the crown typically included, besides the Attorney-General and Solicitor-General, a stable of two serjeants-at-law, royal attorneys attached to the Court of Wards and Court of Requests, and attorneys for the regional councils, and various counsel learned in the law—as well as the Lord Chancellor or Lord Keeper, who was technically the crown’s highest law officer. In the reign of James, these numbers were augmented by similar cadres of legal staff attached to the households of Queen Anna and the Prince of Wales. Swanson, “The Office of Attorney-General” at 129.

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had done was treason, the judges ruled—compassing war, rebellion, and insurrection against the queen was undoubtedly treason—and an indictment issued. The crisis passed, the riot was forgotten, but not before the new Attorney-General recorded the ruling in his notebook.27 Sir John Smythe drew Coke’s attention in the summer of 1596. Smythe had made a successful career as a soldier and a mediocre second career as a diplomat. By the mid-1590’s he had become one of those hottempered retired military men who drink too much and publish pamphlets calling for the reintroduction of the longbow. Smith had written five or six such books, and published two in quarto. On Saturday, June 12, 1596, the last day of the summer musters in Essex, the trained-bands of the county were gathered at Windmill Field, outside Colchester. Smythe rode out onto the parade-ground. He had been drinking since the night before (white wine and claret that morning, over a meal of crabs and oysters). Beside him was riding Thomas Seymour. Seymour was the younger son of the Earl of Hertford, a cousin of the queen’s on the Suffolk side. No responsible politician supported Hertford’s claim to the throne. His younger son was even lower on the list of possible successors. Nonetheless, on that summer morning, Thomas Seymour was not much farther in blood from the English throne than Richard of Gloucester had been when he first rode at the head of an army.28 Wine still strong on his breath, his dark-horse pretender at his side, Smythe began to bluster at the soldiers. He told the troops, who were worried about being sent to Ireland, that they could not be ordered abroad. He said that the realm had been misgoverned, that Burghley was a traitor, and rambled on about bloodshed at Greenwich—heaps of slain men lying about the court, pools of blood above a man’s ankles. The troops did not follow Smythe to Greenwich, and soon the government had locked Smythe in the Tower. The rapid-fire questions which Coke put to him, reveal the intensity of the inquiry: Why he commended the government of Spain and abased his own, and said it was not lawful to send men into Her Majesty’s wars beyond seas? Why he said that if the soldiers followed him and Seymour, the bells should be rung, 27

John Bellamy, The Tudor Law of Treason at 78 (London: Routledge & Kegan Paul 1979); Baker, LPCL at 202; BL Add. MS 6686, fo. 114–115v. 28 Dulcie Ashdown, Tudor Cousins (Stroud, Gloucester: Sutton 2000). To complicate matters, Smythe was himself a Seymour on his mother’s side, and first cousin to the queen’s late half-brother Edward VI. See further Curt Breight, “Realpolitik and Elizabethan Ceremony: The Earl of Hertford’s Entertainment of Elizabeth at Elvetham, 1591,” Renaissance Quarterly 45: 20–48 (1992).

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No one knew quite what to make of Smythe. He had a good war record, he had been drinking heavily, and what he had said did not clearly make out treason. He proved apologetic and soft-spoken, and answered Coke’s questions calmly, which was clever as well as contrite. He claimed never to have read any treatise on the succession. Nonetheless, the strange episode could not be forgotten, not least because at Smythe’s home, Coke’s investigation discovered, the old soldier had recently had 40 livery bows and sheaves of arrows dressed and fletched for service. Smythe kept his head, but he stayed in the Tower for a year, and remained under house arrest while the queen lived.30 Smythe’s pamphlets allowed for many conjectures about the weapons, none of which were exculpatory. It was not only in Essex and London that men felt discontent. In Oxfordshire, in the summer of 1596, the harvest failed. There was dearth throughout England that summer, as there had been for several years. Bartholomew Steer and Richard Bradshaw, a carpenter and a miller, talked together of seizing the armory at Lord Norris’ manor at Rycote. For nearly a month, Steer spoke to his neighbors of rebellion, pulling down enclosures, breaking open rich men’s barns, and a merrier world to follow. A rendezvous was planned for Enslow Hill, on the Sunday after St. Hugh’s Day, November 17. On that evening, only four men assembled, Steer, Bradshaw, and two others; they waited two hours, then dispersed, but were arrested and brought to London. Torture was authorized “for the better bolting forth of the truth,” and seems to have been applied. Coke interrogated the ringleaders and identified some more twenty “mutinous persons.” He grilled them on whether they had found allies among gentlemen, disbanded soldiers, and gypsies, “certain persons calling themselves Egipcians.” 29

CSPD 4: 252 (?7 July 1596). As early as February 1594, Smythe’s name had surfaced in treason inquiries. Id. at 3: 430 (9 Feb. 1594). 30 CSPD 4: 242–43, 249–52; DNB.

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Even though the rising had been still-born, Coke argued to Robert Cecil, arming and assembling amounted to levying war against the queen, the more so given the rebels’ plans to pull down enclosures. To speed the process, Coke obtained the queen’s signature on a commission allowing “the rebels of Oxfordshire” to be tried by an Oxfordshire jury sitting at Westminster. He argued, as well, for trying them not under the treason statute of Edward III, but rather under the Elizabethan treason statute of 1571, the statute approved by the judges considering the apprentices’ case. The earlier treason statute required the actual levying of war against the crown. The statute of 1571 did not require that. It could be read, another commission of judges decided, to apply to any general conspiracy among subjects to arm themselves and rise, since “rebellion is all the war which a subject can make against the king.” The rebels here had not meant to level the enclosures of a single landlord: “the case tending to a generality, makes the act if it had been executed to be high treason by the course of the common law.” Some of the defendants, including Steer, seem in the meantime to have died in prison. Two who remained, Richard Bradshaw and mason Robert Burton, were executed in June 1597 at Enslow Hill.31 Three judges dissented from this expansive reading of the treason laws. The decisions seemed to be responses to the times. Professor John Bellamy has written: Revealing as to what was going on in the minds of the crown’s lawyers was the point made by the [judges] in the case of the London apprentices that in compassing to levy war, so long as the compassing was directed against . . . [the queen’s] authority or policy . . . it was immaterial whether they intended harm to the queen herself. This interpretation was a new one but by no means unreasonable. . . . The unsatisfactory feature of the judges’ construction . . . was rather in their viewing riot or intended riot as intention to levy war. There was perhaps one justification for their decision. The sounding of the trumpet, the carrying of the makeshift flag, were traditional proof of levying war itself even if on this occasion the rioters were not in martial harness.32

Bradshaw and Burton did not die entirely in vain. In questioning the would-be rebels, the government had asked which local gentlemen had 31 John Walter, “‘A Rising of the People?’ The Oxfordshire Rising of 1596,” Past & Present 107: 90–143, 90, 137–40 (May 1985); Burton and Bradshaw’s Case, Anderson’s Reports 2: 4–5 (1596); Popham’s Reports 122–23; 3 Inst. 9–10; Salisbury MSS 7: 236 (4 June 1596). 32 Bellamy, The Tudor Law of Treason at 79.

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converted lands from tillage. Coke brought these concerns to Burghley, and a broader inquiry was soon under way. In January 1597, seven gentlemen faced charges in Star Chamber over enclosures. A short month later, as the Lent assizes got under way, the Privy Council instructed the judges to identify further offenders “touching enclosures, whereby any highways are stopped or villages or houses destroyed and dispeopled and tillage greatly decayed.” It was on the basis of the judges’ returns, very likely, that Coke brought more prosecutions by year-end—not only for enclosure, but for engrossment, the hoarding of grain.33 As late as 1621, when Coke returned to the House of Commons, the former AttorneyGeneral recalled these days. It would be wrong to foster enclosures, he told the House, “God knows in these tumultuous times of what dangerous consequences it might be.”34

Edward Squire—Assassin Edward Squire was a down-at-heels scrivener, sometimes employed in the queen’s stables, who ran off to sea on the last voyage of Drake and Hawkins.35 He was captured on Guadeloupe and imprisoned in Spain. Father Richard Walpole, S.J., interrogated Squire, found him pliable, and won his loyalty. When Squire returned to England, he had been schooled in a novel means of applying poison, perhaps even furnished with the deadly confection: opium, white mercury, and various other powders, “one yellowish and the others brownish, and called by Latin or Greek names.” Squire tested the poison on a puppy. Then he placed the compound in a pin-pricked bladder, which he carried in his gloved hand, and made his way back to the royal stables. He found the queen’s saddle, with its velvet pommel, and smeared the pommel with the poison. His act went unnoticed, the queen remained in health, and Squire remained at large. On the Islands voyage of 1597, he apparently tried to poison the upholstery of an armchair favored by the Earl of Essex. Only a year later did the authorities close in. A second traitor, John Stanley, arrived in London. To buy himself favor, he peddled details of 33 Walter, “The Oxfordshire Rising” at 131–35; Hawarde, Cases in Camera Stellata at 71, 75– 79, 91 (engrossment and enclosure proceedings in Star Chamber, Apr.–Nov. 1597). 34 W. Notestein, F. Relf & H. Simpson, eds., Commons Debates 1621 at 3: 186–88, 5: 145–49, ed. (New Haven: Yale Historical Publications 1935). 35 The following discussion relies on CSPD 5: 106–23 (18 Oct.– 22 Nov. 1598) and Arthur Freeman, Elizabeth’s Misfits: Brief Lives of English Eccentrics, Exploiters, Rogues and Failures at 1– 48 (New York: Garland Publishing 1978).

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Squire’s plot. Squire confessed readily, without torture, then began changing his story. He had bought the ingredients for the poison at a shop on Paternoster Row: no, he had been given the poison ready-mixed in Spain. He had taken money to kill the queen; no, he had never done so. He had remained loyal to the Church of England; no, he had left Spain a convinced, converted Catholic. Proving the government’s case troubled Coke. Squire was not the only defendant facing trial. He had an accomplice, Richard Rolles, just as Stanley had a cohort of his own, William Monday. All four men were facing treason charges and all had reason to lie. These factors would make the prosecution complicated. Both Squire and Stanley had changed their stories already; under new pressure, they might change them yet again. Stanley had already confessed that some of his evidence against Squire had been forged. No matter how mangled the prosecution case, a conviction would probably result, but convicting four turncoat assassins was only half of the government’s agenda. To score a propaganda coup against Spain and the Society of Jesus, it was necessary that Squire’s guilt—and the guilt of the men who had sent him—appear unequivocal. With these considerations on his mind, Coke consulted Robert Cecil: I have sent you the indictment which I have drawn against Squire, which for the form is, by the opinion of the principal judges, according to law. But yet, what is convenient to be inserted and what omitted, it is my part to be directed by those that are able to give directions in so great causes. Albeit the whole composition of it do, as seemeth to me tacite set forth the whole manner of the contriving not to be by Walpole alone.36

Robert Cecil was supremely able to give directions in great causes. As a politician, he was adept at calculating and working around the risks of a given course of action. Moreover, by this time Cecil had built up his own 36 Salisbury MSS 8: 421 (3 Nov. 1598). There was nothing new in an Elizabethan prosecutor conferring with the government about what course to pursue and how much evidence to rely on at a state trial. Attorney-General Egerton, while prosecuting Lopez, had consulted Lord Chancellor Puckering about the oyer and terminer commission under which that matter proceeded, and during the prosecution of Sir John Perrot, Egerton and Popham had asked advice on how to use certain evidence demonstrating Perrot’s malice. Swanson, “The Office of Attorney-General” at 203–5, citing P.R.O., S.P. 12/248/26 (Egerton to Puckering, 14 March 1594) and P.R.O., S.P. 12/241/7 (Popham and Egerton to the Lord Treasurer, Lord Admiral, Lord Chamberlain and Lord Chancellor, 6 Jan. 1592). Customarily, crown prosecutors worked from a particular file, the Baga de Secretis, containing precedents and copies of records used in prosecuting treason and other high crimes, dating back to at least the reign of Edward III. L. W. Vernon Harcourt, “The Baga de Secretis,” English Historical Review 23: 508–28 (1908).

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network of spies and correspondents. No English leader was better equipped to judge the truth of events reported from Spain, to edit an indictment so that the Attorney-General’s pleadings would not unwittingly disclose crucial intelligence, or to dovetail a treason prosecution into a broader propaganda strategy. Whatever flaws may have marred the indictment, Coke presented the case with vigor and emotion. So intense was his manner, it was reported, that he burst into tears when describing the horror of the poison used by Squire and the good fortune of the queen’s escape. Coke won a conviction, even though Squire continued to change his story—before the judges, and finally as he faced the crowd at Tyburn.37

Coke’s Work as Attorney-General Across the troubled course of the 1590’s, Coke dealt with other cases which looked very much like treason. There was the case of Valentine Thomas, a Scotsman accused of plotting to upset the English succession.38 Questions arose about the Earl of Shrewsbury and his servant Nicholas Williamson. The earl was vaguely involved in plans to reconcile James VI of Scotland to Rome. Williamson had met with Scottish Jesuits overseas, and closer to home, had taken part in a Midlands riot, an affray in which the earl’s servants attacked a weir defended by Sir John Stanhope’s men. The earl suffered little. Williamson suffered imprisonment and was warned by Coke that “some other sharper course should be taken with him.” Coke left the conspirator under a suicide watch. Williams wrote an anguished complaint to Cecil: “My mind can work you nothing else but to excogitate reasons to defend my innocency, loyalty, and sincere intents at the most dreadful bar against that learned and most severe Mr. Attorney.”39 That learned and most severe Mr. Attorney—that was a compliment of sorts. Around this time, another prisoner (or malcontent) put it more pungently; complained that “Mr. Attorney is holden to be a second Cardinal Wolsey and gapes at great matters.”40 37 The fate of John Stanley is uncertain, unless reflected in the Venetian ambassador’s remarks at year-end 1598 about the execution of a second assassin sent from Spain. 38 Salisbury MSS 8: 505 (18 Dec. 1598). 39 Salisbury MSS 5: 221, 229, 236, 241–56 passim, 526–28 (May-June 1595). 40 Were the customs tolls revised, the writer continued, the queen could increase her income by £60,000 a year, “but this is death to tell [the Lord Treasurer] or Mr. Attorney.” Salisbury MSS 12: 565–67 (dated 1602, but apparently referring to Burghley).

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For the Attorney-General, mundane matters could be as pressing as high crimes. Pardons had to be approved, proclamations had to be drafted, values estimated for manors granted away by the crown in the heady days of Henry VIII.41 To troublesome suitors, Coke could be brusque. Sir Edward Denny demanded that Coke send him immediately certain leases; Coke answered, “that he is the queen’s sworn man, and will not meddle any further therein without some notice from some of the Council.”42 For sessions of parliament, Coke drafted government bills. For the constables of England, he drew up articles listing the responsibilities of their post. Enough was said about recusants and alehouses to gratify old Nathaniel Bacon.43 Coke’s work as Attorney-General, the crown’s chief legal officer, overlapped with a role he had taken on at the Inns of Court. On November 3, 1595, he was elected Treasurer of the Inner Temple. He held this position for two years, and thereafter continued to serve his fellow Templars, prominent among those sitting in the inn’s parliaments, admitting new members and scrutinizing the conduct of the Temple’s cooks. Coke’s most important act, as Treasurer, may have been to set stricter standards on admission. In May 1596, the judges and the benchers of the Inns agreed that “no one was to be admitted into an Inn of Court unless he had a chamber within the Inn, and in the meantime he was to be of an Inn of Chancery,” and that no one would be called to the bar “except he was of seven years’ standing and had kept his exercises of learning.” The restrictions were an effort, ultimately unsuccessful, to control the growing size of the bar. Only four utter-barristers were to be called at any inn each year: Also that no benchers be called but such as be fittest both for their learning, practice, and good and honest conversation, and that they call not to the bench too often, but very sparingly in respect of the great majority that be already.44

Coke also seized an opportunity to strike in London against an opponent from Norfolk. Sir Arthur Heveningham “prayed license to build certain lodgings for his children” at the Inner Temple. A Temple parliament 41

CSPD 5: 341 (10 Nov. 1599); CSPD 5: 115 (1599); CSPD 6: 290 (1602). Salisbury MSS 5: 130 (4 March 1595). 43 CSPD 5: 520 (1600). 44 F. A. Inderwick, Calendar of the Inner Temple Records at 1: 413–14 (London: Henry Sotheran & Co. 1896); F. D. MacKinnon, “Sir Edward Coke: His Connection with the Inner Temple,” Law Quarterly Review 51: 289–98 (1935). 42

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headed by Coke rejected this—advised Sir Arthur “that when his sons shall be of the House, then consideration shall be had of some place fit for such a building.”45 Some of the work Coke did for the Crown came with historical echoes. The kinsmen of Robert Doughtey, beheaded by Francis Drake on a Patagonian headland, approached the crown, seeking justice. That Drake had led his ships to distant and little-known lands, now served him well; Coke and the queen together were able to deflect the inquiry. A Constable and Marshal would have to be appointed to try the case, but Elizabeth refused to do so, “considerant le veritie et circumstances.”46 Other unusual cases arose nearer home. In December 1601, one of Coke’s neighbors in Norfolk, Henry Clifton of Toftrees (a parish where Coke owned land and the rectory), brought a suit in Star Chamber. Clifton sought to reclaim his son and punish the masters of the queen’s Chapel Royal. Young Thomas Clifton, on his way to school in London, had been waylaid by men who committed him to the Blackfriars playhouse, “amongst a company of lewd and dissolute mercenary players, proposing . . . to use and exercise him, the said Thomas Clifton, in acting of parts in base plays and interludes.” Henry Clifton was undeterred by the chapel-masters’ scorn, their threat to have Thomas whipped if the boy failed to learn his lines, or the royal warrant they produced, allowing them to impress children for the Chapel Royal. The pursuing father found one friend on the Privy Council, Sir Thomas Fortescue, and he must have found another in his neighbor the Attorney-General. He recovered his son, while the Star Chamber censured Henry Evans, master of the Chapel Royal. Coke summarized the case: Where a commission is made to take boys singing in cathedral churches, &c. or other places where children are taught to sing, to furnish the king’s chapel, these general words by construction of law have a reasonable intendment, scil, that such boys as are brought up and taught to sing, to seek and get their living by it, may be taken for the king’s service, and it will be a good preferment . . . but the son of a gentleman, or any other who is taught to sing for his ornament, delight, or recreation, and not thereby to get his living, cannot be taken against his will, or the consent of his parents or friends.47 45 Inderwick, Inner Temple Records at 1: 403 (9 Feb. 1595). To ensure that the snub went home, the same parliament admitted four junior members of the Gawdy clan, Coke’s younger cousins. 46 Baker, LPCL at 202, BL Add. MS 6686 at fo. 311v, 330r. 47 8 Co. Rep. 46 (note-case within Jehu Webb’s Case). See F. G. Fleay, Chronicle History of the London Stage 1559–1642 at 125–42 (New York: G. E. Stechert 1909); Roberta F. Brinkley,

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Coke researched and expansively described the crown’s prerogatives; he prepared patents for the saltpetre monopoly; he drafted commissions giving ample power to the members of the ecclesiastical Court of High Commission.48 In all these areas, when Coke turned against prerogatives, monopolies, and church courts, his actions would later be cited against him. But those controversies would not arise for decades. In the meantime, Coke pursued his duty to define broadly and forcefully his royal client’s power. [The Attorney-General] was the Court’s first line of defense, the champion of royal prerogatives. If possible, he was expected to help the king to magnify his powers, but, even more important was his duty to note and report any event or action that seemed to endanger prerogative to even the slightest degree. If through oversight or choice he failed to expose a challenge, the king’s power in some particular might forever be diminished.49

The queen herself kept an eye on her legal rights. Coke would praise Elizabeth for not overmastering her subjects: “Bless God for Queen Elizabeth, whose continual charge to her justices, agreeable with her ancient laws, is, that for no commandment under the great or privy seal, writs or letters, common right be disturbed or delayed.”50 But although the queen might leave common rights untroubled, she could pounce fiercely on any error by her lawyer. In 1596, in a long-standing dispute between the crown and Lord Berkeley, a writ of error—which Berkeley had sought—was accidentally sealed. The queen had asked that it be stayed; Coke had asked Lord Keeper Egerton that it be stayed; somehow the document slipped through. Lord Burghley and Lord Buckhurst both appeared at their royal mistress’ call, demanding to know what had happened; to which Coke could only respond that the writ had been sealed before he could prevent it.51 There were other, smaller frustrations connected with legal practice. One one such occasion, Coke wrote to Cecil: _____ Nathan Field, The Actor-Playwright at 18–35 (New Haven: Yale Studies in English, Vol. 77, 1928); Blomefield at 7: 203. 48 CSPD 5: 521 (1600); CSPD 6: 276 (1602); Stuart B. Babbage, Puritanism and Richard Bancroft at 291 (London: Church Historical Society 1962). 49 Kopperman, Sir Robert Heath at 86. 50 Coke, Preface to the Second Part of the Reports (1602). 51 Salisbury MSS 6: 68 (21 Feb. 1596); Salisbury MSS 13: 521 (1594). The case stretched back to the mid-1580’s and was a complicated three-party affair, involving Lord Berkeley, the Earl and Countess of Warwick, and the wardship of Sir Philip Sidney’s daughter (co-heir to Warwick). See further J. N. Cooke, “The Great Berkeley Lawsuit,” Trans. of the Bristol & Gloucestershire Archaeological Society 3: 304–24 (1878–79); Alexandra Sinclair, “The Great Berkeley Law-Suit Revisited,” Southern History 9: 34–50 (1987).

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“I received your letter at 10 o’clock this night. Tomorrow is appointed for the examination of the causes of corrupt stewards and wood wastes, matters of great consequence, wherein her Majesty is infinitely deceived. It is impossible for me to draw and engross a new commission and bring it with me tomorrow.”52 Another commission was required of Coke in early 1599: the commission under which the Earl of Essex would go out to suppress the rebellion in Ireland. It gave the broadest powers ever conferred in war or peace, Coke recorded in his personal notebook.53 In August 1599, the queen’s Attorney-General helped transfer leases from the bishop of Sarum to the captain of the queen’s bodyguard. Sir Walter Ralegh was troubled by terms which the churchman had inserted, and suggested a back-handed way out: enroll the grant, “and then, when it is in there, perchance Master Attorney will find a way to frustrate that condition, as sure as they think they have made it.”54

Jesuits, Seculars, and Dominicans During the 1570’s and 1580’s, a new generation of priests began to minister to the Roman Catholics of England. Trained overseas, in Flanders or in Spain, they crossed as missionaries to England, risking imprisonment or death. The most prominent were the Society of Jesus. “The Jesuits followed the principle of their founder,” Diarmaid MacCulloch has written, “and insisted that every Catholic should first obey the Pope; they also insisted that the Catholic community should keep itself completely separate from the Church of the Elizabethan Settlement.”55 Nor did they scruple to hint that other Catholics lacked zeal, which caused tension with secular priests and members of other, older Catholic orders. Coke was forced to confront the religious divisions of England almost as soon as he became Attorney-General. From Rodrigo Lopez, a 52

Salisbury MSS 12: 137 (2 May 1602). Baker, LPCL at 201, BL Add. MS 6686, fo. 408v–410r. 54 Agnes Latham & Joyce Youings, eds., Letters of Sir Walter Ralegh at 180–81 (Exeter: University of Exeter Press 1999) (Ralegh to Robert Cecil, 25 Aug. 1599). Coke distrusted the complexity of the transfers, the conditions which they put upon the queen’s action and the light in which they cast her, and the hastiness which was demanded. Salisbury MSS 9: 333–34 (29 Aug. 1599). 55 Diarmaid MacCulloch, The Later Reformation in England 1547–1603 at 122 (New York: St. Martin’s Press, 2d ed. 2001). 53

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man with whom he shared no background or blood, Coke was forced to turn to a defendant whom he must have known from childhood. Father Henry Walpole, the first of the Jesuits with whom Coke would deal, had attended the Norwich grammar school, only a few short years behind Coke. In the reign of Philip and Mary, Coke’s father had helped arrange the boy’s wardship, putting it safely into his widowed mother’s hands. By the last decade of Elizabeth’s reign, Edward Coke and Henry Walpole had taken irrevocably different paths. While Coke was studying the law, Walpole had studied at Douai; in the years Coke rose to prominence at the bar, Walpole had been a military chaplain attached to Spanish forces. Coke did not hesitate to enforce the penal laws barring Roman priests from England, and Walpole did not shrink from martyrdom.56 The running battle between English Catholics and English pursuivants continued. Justice Richard Young, who had hunted Barrowists through the thickets of Islington, raided a Jesuit hide-out in Finsbury Fields. One priest was captured in the street outside, but Young missed a greater prize; wearing a silk tunic, he held back from searching a cellar full of coal dust—and in which, had he sounded the walls, he would have discovered a priest-hole large enough to hold six or seven men. At Wisbech Castle in the fens, captured priests were interned. They turned on each other bitterly, with Jesuits accusing secular priests of levity, while the seculars accused the Jesuits of an obsession with witch-hunting. The government fostered these divisions—removing to the Tower first the seculars, then the Jesuits, implying that each side was selling out the other. In what seemed an unrelated matter, Coke obtained a confession implicating Father Bagshaw, the seculars’ abrasive leader. That marks involvement by Coke in the government’s work at Wisbech—so too Coke’s investigation of the porter at Wisbech, who negligently (or collusively) allowed the escape of certain priests. Prominent men’s wives required special handling. Proceedings against the recusant wife of Sir Henry Constable, Coke was advised by the crown, were to be stayed, “so that meantime Sir Henry may try all good means to win his wife to conform to the religion professed by Her Majesty and the State.”57 56 Augustus Jessopp, One Generation of a Norfolk House (New York: G. P. Putnam 3d ed. 1914); Philip Caraman, Henry Garnet and the Gunpowder Plot at 177–200 (London: Longmans 1964). 57 Caraman, Henry Garnet at 124–26; Penelope Renold, “The Wisbech Stirs 1595–98,” Catholic Record Society 51: xi–xxi (1958); CSPD 3: 20, 181, 194 (25 March 1592, 5–31 March 1596); CSPD 4: 183 (7 March 1596).

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Near the end of the queen’s reign, Coke was involved in one of the oddest encounters in the history of English counter-intelligence. Word of a scheduled covert rendezvous had been brought to Chief Justice Popham. Popham must have sensed an opportunity for immediate, heavyhanded action. The Lord Chief Justice personally orchestrated a stakeout in Gray’s Inn Fields, and brought Coke along: “At the time appointed for the meeting, Mr Attorney and myself, with such men as we could trust, invaded the place, and so had both the men that came to Mr. Sacheverel’s the night before, and also the party who desired the meeting, and who called himself Gregory but now Bell Grey.” Grey was dressed and armed as befit a soldier; he drew his sword and “stood a good while before he would yield.” Within two weeks, as Coke and Popham questioned all their prisoners, his identity came to light. Captain Bell Grey was Andrew Bailey, a renegade Dominican friar.58

Father Gerard and Jesuit Equivocation Of the time Coke spent questioning prisoners, the most remarkable hour came during his interrogation of Father John Gerard.59 Even among the Society of Jesus, the order to which he belonged, Gerard was notable for his fearlessness, intelligence, unswerving determination, and unwavering devotion to the Church of Rome. Raised in Lancashire, he was deeply read only in matters of theology. His north-country upbringing had schooled him in hawking and hunting—also lent him the manners of a squire, which proved invaluable when he had to bluff his way past bumpkin constables. He had spent five years in Norfolk, on terrain Coke knew well. In 1594, Gerard was caught and jailed. In 1596, the government learned he was still corresponding with Jesuits overseas. Gerard attempted to escape from the Clink with a set of forged keys, the warders managed to catch him, and he was transferred to the Tower. As a seasoned interrogator, Coke would have briefed himself thoroughly on Gerard’s career. He was Attorney-General and would have had full access to the government’s buckram file bags, and would have learned 58 CSPD 6: 261–63 (15 Nov. 1602); Godfrey Anstruther O.P., A Hundred Homeless Years: English Dominicans 1558–1658 at 83–87 (London: Blackfriars Publications 1958). Those familiar with the fiction of Sir John Mortimer will note that one of the culprits apprehended, who may have tried to shop his fellow perpetrators, was named Henry Timson or Tympson. 59 The following section follows John Gerard, The Autobiography of a Hunted Priest, trans. Philip Caraman (New York: Pellegrini & Cudahy 1952).

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even more from his family and friends in Norfolk. The recusants to whom Gerard had ministered there included people whom he knew: his father’s friends the Walpoles, his neighbors the Yelvertons of Rougham, several of his own Woodhouse cousins. Coke would have heard, most recently, how Gerard had verbally bested Topcliffe the torturer. Topcliffe had asked Gerard: Should the Pope send an army to England, for whom would you fight, the Pope or the Queen? This was the notorious “Bloody Question.” It was framed to cut through verbal evasion, to reduce to fundamental terms the questions of a prisoner’s loyalty. Ironically, the question had little if any legal effect. Being loyal to the Pope was not a criminal offense; offenses involved concrete actions, offering or celebrating mass, harboring priests, or withdrawing subjects’ loyalty to the queen. Rather, the Bloody Question was a propaganda ploy. Any answer which favored the queen discredited a Catholic priest in the eyes of the Roman church. Any answer which favored the Pope could be used to drum up patriotic resentment—it marked a man as a traitor, whatever his background, qualities, or accomplishments. The question had been highly successful both at compromising timorous priests and in convicting the obstinate.60 And yet, audaciously and intelligently, Gerard had found another response to Topcliffe. He had responded in a way that simultaneously sidestepped the charges and flung back a challenge. Gerard wrote: [Topcliffe] had so framed his question that whatever I answered I would be sure to suffer for it either in body or in soul. I picked the words of my reply—“I am a loyal Catholic and I am a loyal subject of the queen. If this were to happen, and I do not think it at all likely, I would behave as a loyal Catholic and as a loyal subject.”61

On April 14, 1597, Gerard was brought before several commissioners, Coke at their head. “The Attorney-General took out a sheet of paper and 60

The so-called Bloody Question was in fact the last of a series of six very similar questions, testing the examinant’s opinion on Elizabeth’s legitimacy and the pope’s asserted power to depose secular princes. The questions were supposedly drafted by Burghley, who knew the value of propaganda, and were first called “bloody questions” by Father Edmund Campion, a practiced orator who recognized their shrewdness. Elizabethan criminal law drew a harsh but consistent line between conscience and action. Patrick McGrath, “The Bloody Question Reconsidered,” Recusant History 20: 305–19 (1991). Significantly, as McGrath has observed, “The Questions were not part of English criminal law, and no one was executed because he said he would support a papal invasion or that he would not fight for the queen. All the martyrs were put to death on specific charges laid down in English law.” Id. at 307. 61 Gerard at 99–100.

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solemnly began to write out a form of juridical examination,” Gerard recalled. Then they asked me about the letters I had recently received from our Fathers abroad; and I realized for the first time why I had been removed to the Tower. I answered: “If I have ever received any letters from abroad at any time, they have had nothing to do with politics. They were concerned merely with the financial assistance of Catholics living on the Continent.”62

Across the table, Coke wrote down: Being demanded whether he received any letters from beyond the seas, he refuseth to declare to whom the same were delivered over, and refuseth also to declare who brought the same to him or by whom he received [them] . . . Two or three of them he confesseth he did read, and sayeth that these letters contained matters concerning maintenance of scholars beyond seas, but refuseth to declare who sent these letters, or by whom they were brought.63 Coke’s notes and Gerard’s memoir confirm each other. Let the priest continue: “You say,” said the Attorney-General, “you have no wish to obstruct the Government. Tell us, then, where Father Garnet is. He is an enemy of the state, and you are bound to report on all such men.” “He isn’t an enemy of the state. On the contrary, I am certain that if he were given the opportunity to lay down his life for his queen and country, he would be glad of it. But I don’t know where he lives, and if I did, I would not tell you.”64

Gerard’s jailors had been authorized to use the manacles, to hang him by handcuffs from a staple driven high into the wall. The warrant for torture was produced. Gerard read it. The group “went to the torture-chamber in a kind of solemn procession,” Gerard wrote, “the attendants walking ahead with lighted candles.”65 Gerard was hung from the manacles that day, while his wrists swelled and he fainted. The next day he was hung from his wrists again. He revealed nothing, and finally they left him alone. In May, Gerard and Coke met again. The law-courts’ Trinity Term would soon begin, and there were plans to put Gerard on trial. Coke explained the procedure: he would ask Gerard the same questions, in the same order, that he would later ask him in court. Gerard began compli62

Id. at 107. P.R.O., 12/262/123, CSPD 4: 389 (14 April 1597). 64 Gerard at 107. 65 Id. at 108. Interrogation was done during regular work hours and not at night. Father Gerard reports that state officials, like Coke, routinely left the Tower of London at the ringing of the five o’clock bell, so as not to be locked in the fortress overnight. Id. at 111. 63

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antly enough. He admitted that he was a priest, that he was a Jesuit, and that he had come to England to reconcile the queen’s subjects to the Church of Rome. He denied plotting against the government. Then he asserted—breaking away from Coke’s scripted questions—that he heartily, freely wished Elizabeth and her Council and the gentlemen before him might be converted to the Catholic faith, suffering no loss of honor or right, but simply for their happiness. “For a few moments,” Gerard recorded, “the Attorney-General was at a loss for an answer.”66 When Coke spoke again, he initiated a scene which suggests not Shakespeare, but rather Dostoevsky. The inquisitor and the prisoner began discussing the nature of truth and the limits of authority. Coke denounced equivocation, and Gerard defended it. Equivocation was the technique used by Jesuits to withhold truthful answers under interrogation. When asked an incriminating question, the prisoner witness returned a non-responsive answer—sometimes a flat denial, more often an equivocal double answer which was useless to prosecutors. Gerard had equivocated throughout his testimony. (Where is Father Garnet, the enemy of the state? Father Garnet is not an enemy of the state. But I don’t know where he lives, and if I did, I would not tell you.)67 Gerard maintained that equivocation was not deceitful. The equivocator did not deceive another person in order to gain a personal advantage for himself. To use equivocation was merely “to withhold the truth in cases where the questioned party was not bound to reveal it.” Indicted prisoners were allowed to plead Not Guilty, even when the evidence was incontrovertible. Travelers from whom robbers demanded money were justified in claiming that they had none. To deny a man what he had no claim to was not deceptive. All these points, and more, Gerard outlined. Coke rejected them, insisting that equivocation was merely lying. Gerard then offered a rhetorician’s gambit, a concession laced with deadly implications. “A man cannot deny a crime if he is guilty and lawfully interrogated,” he volunteered. Coke took the bait. “What do you mean by lawful interrogation?” asked the AttorneyGeneral. 66

Id. at 125. The technique and rationale of equivocation are well set out in Gerard’s account and in A. E. Malloch, “Father Henry Garnet’s Treatise of Equivocation,” Recusant History 15: 387–95 (1981). 67

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The Queen’s Attorney and Cecil’s Man “The question must be asked by a person who has authority or jurisdiction and it must concern an action in some way harmful to the State, otherwise the law cannot take cognizance of it. . . . In general, equivocation is unlawful save when a person is asked a question, either directly or indirectly, which the questioner has no right to put, and where a straight answer would injure the questioned party.”

This exchange brought the philosophical debate back to the politically divided earth. Gerard’s endorsement of equivocation, implicitly and inherently, denied the legitimacy of Elizabeth’s Protestant state. He was justified in equivocating, Gerard asserted, because his interrogation was unlawful. Coke had no right to expect answers to his questions, because he had no authority to ask them. This equated the queen’s AttorneyGeneral with a highway robber and insisted that it was no crime to withdraw Englishmen’s allegiance from Anne Boleyn’s bastard daughter. At the same time, Coke’s complaint that equivocation was falsehood—just as obliquely, and just as strongly—conveyed the message that Gerard was contemptuously lying through his teeth. “The Attorney-General wrote down every word,” Gerard recorded, “and told me he would use it against me before very long when I came up for trial.”68 Gerard’s memoirs are one of the few first-hand accounts of confinement in the Tower. They are also one of the few first-hand accounts of any conversation with Edward Coke—and from that angle, they illuminate Coke’s personal style. Coke’s courtroom manner was histrionics and bombast and abuse. He cried at Squire’s perfidy, raged unavailingly at Ralegh, showed fits of temper in Star Chamber. Yet Coke had a quiet manner which he could also call upon, something that went with his bookishness and draftsman’s precision; as well as blustering, he could let fly single phrases, cool or corrosive. It was this quiet side which Coke showed now. Facing Gerard, Coke did not bully or threaten. He did not cuff the priest across the table. He did not did not call in warders to beat the prisoner. He derided Gerard’s colleagues, “disparaged Father Southwell’s character,” denounced Gerard’s method—but never attacked the prisoner by name. His interview with Gerard is one with other moments in which Coke scored his points with understatement and innuendo. Coke and Gerard left behind them one small mystery. Among the state papers which document Gerard’s examination is a list of names, 68

Gerard at 125–27.

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Gerard and six other priests, written out by Coke, on the back side of a small stiff rectangle of paper—an Elizabethan playing-card, the seven of spades. Was there a reason Coke used that particular card, and from whose deck of cards did he draw it?

Conclusion In fact, the Attorney-General never used his evidence at trial. Without a square answer to the Bloody Question, the government lacked its least necessary but most impressive piece of evidence. Coke may have judged that bringing Gerard into court would entail needless risks. If the government put on trial only brilliant and daring Jesuits, it lent their Society an undesirable cachet. Campion and Southwell, at their executions, had proved by example that martyrs created faith. Sparing Gerard would not go amiss in Norfolk. Francis Woodhouse was already being bankrupted for his faith, and to overlook other families’ old-fashioned religious sympathies would do them a favor they could hardly forget. Best to deny Gerard the martyr’s crown. There were other priests and traitors in cells, men less personable and articulate—some of them could be hanged if need be.69 Coke himself had faced down Topcliffe once, four years before on the floor of the House of Commons. He and Gerard had that much in common, and perhaps a little more. The side of Coke that spoke with understatement knew exactly what Gerard had done, and the side that was Attorney-General knew a precedent. A century before, in the early years of Henry VII, the king had asked Chief Justice Huse to rule whether certain facts would convict a man of treason, in a matter not before the court. The judge had unflinchingly told the new king his duty. When such a case arose, Huse had answered Henry, “it would come before the King’s Bench judicially, and then they would do what by right they ought to do.”70 Coke had faced Gerard and he had Chief Justice Huse’s example before him. He would remember both men’s answers, though the proof lay twenty years in the future. 69 T. B. Trappes-Lomax, “Roman Catholicism in Norfolk 1559–1780,” Norfolk Archaeology 32: 27–46, 29–30 (1962). Meantime, Gerard—unsurprisingly, considering his personal qualities and the spectacular fortune which attended his mission—wasted little time in escaping from the Tower. 70 Rex v. Stafford, Y.B. Trinity 1 Henry VII, fo. 26, pl. 1 (1486).

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The title-page proclaimed the matter boldly: A Godly Sermon Preached Before the Right Worshipful Edward Cooke, Esquier, Atturney General unto the Queen’s Most Excellent Majesty, and Others of Worship, in Tittleshall in Norfolke. The Reverend Francis Bradley was pleased with his work. He was an obscure clergyman, and his venue had been a country pulpit, but he had handled the allegory ably, and his listeners had been eminent. It was to the most eminent of them that he dedicated his sermon. Bradley had taken as his text a line from Second Chronicles: “And after the death of Iehoiada came the Princes of Judah, and did reverence to the King, and the King hearkened unto them; and they left the house of the Lord God of their fathers, and served groves and idols, and wrath came upon Judah and Jerusalem, because of this their trespass.”1 The reading which he gave these lines was transparently political. Bradley rehearsed how the counsel of his princes led King Joash into idolatry, after the death of his loyal, God-fearing high priest Jehoiada. Bradley repeatedly praised the Queen, “our Deborah,” not least for breaking up high altars, which he likened to idols and sacred groves. Nonetheless, he announced, the kingdom was in peril, because of its sins, because it had lost so many Jehoiadas, “godly and sage counselors.” There were those abroad who might mislead the ruler—as Doeg had misled Saul, as Ziba had misled David. Ignore such flatterers, Bradley warned his listeners; rather heed the fate of Joash and repent. He ended with a series of admonitions: to all estates and persons, but first of all to magistrates. They should not fail to pursue their duties, 1

2 Chronicles 24: 17–18.

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he advised, “God having put the sword of holy authority into their hands, for the punishment of evil and the maintenance of good.” The queen’s attorney had honored Bradley with his attendance; he may even have paid for printing Bradley’s pamphlet. Yet if Coke received a copy of the work, he did not preserve it. Perhaps the piece was too ephemeral, suggested W. O. Hassall, among the greatest curators of Coke’s library. That judgment reflects an irony of history. When Bradley’s godly sermon was carried out of Felix Kingston’s print-shop, in 1600, it was amid the final crisis of the Queen’s long reign. By the spring of 1601, that crisis had passed, resolved in a morning when loyal magistrates actually drew swords.

Essex and Cecil As the 1590’s wore on, in-fighting had continued between Essex and Cecil. The earl’s intelligence service had expanded, briefly eclipsing Cecil’s own group of intelligencers. Essex’s raid on Cadiz in 1596 made him a national hero. If he lacked the Cecil family’s cunning and patience, he had an appealing vitality, he respected learning, and he retained a formidably intelligent school of advisers: Francis Bacon, Anthony Bacon, and don-turned-politico Henry Cuffe. He could count on gifted soldiers such as Lord Mountjoy and pragmatic survivors like Sir Griffin Markham. Outside this circle, Essex had a different sort of following, turbulent men, restless, impecunious and ambitious like those who had followed Catiline—“the idiot-fringe of the indebted gentry,” Hugh TrevorRoper rightly called them.2 The earl even played for Roman Catholic aid. It was said that he had praised Father Gerard and aided other Jesuits.3 Under the Earl’s influence, Norfolk politics became blunter. In many ways, its political battles were fought along familiar lines. In 1593, the bill which Coke had shouldered through Parliament should have quieted title to the dean and chapter lands; but the concealers picked out yet another flaw in the conveyancing, and dragged the case back to the Exchequer (this time, supported by Essex). Skirmishing resumed over the militia— but this time, the country faction trounced their opponents. Coke triumphed in a Star Chamber prosecution. Fines and prison terms were handed down, to a group of the muster-masters’ servants and allies. 2 Trevor-Roper, “The Jesuit Mission in England and the Gunpowder Plot,” Men and Events at 109. 3 Hammer, The Polarisation of Elizabethan Politics at 140.

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The End of the Reign The Queen’s Attorney informed against William Gresham of Norfolk, Justice of the Peace, and divers others, for that they . . . when men were being mustered there, did take money to discharge certain men when they were pressed for service, and to appoint others in their places . . . The depositions were written and made at the charge of the Attorney, but he said that afterwards the Queen would make allowance for this. And he read a sage speech of the princely care of her realm and respecting the danger of such offences, which weakened the forces of the kingdom and made the people mutinous, &c.

Lord Buckhurst presided and delivered the judgment. It was noted that his lordship “greatly commended” Attorney-General Coke, “for his fealty and trouble in finding these offenders in his native country . . . and he encouraged him to continue on such a course.”4 Coke was working closely with Buckhurst these days, as the old statesman more and more took Burghley’s place at the queen’s right hand. Later, a bill would be brought forward in Parliament, to give deputylieutenants broad new powers to tax and jail. The measure died, studied to death by lawyers, who found “so many imperfections . . . as it could not conveniently be amended.”5 That Coke was respected among those lawyers, and that this regretful conclusion was reached, are probably not coincidental. In 1597, another Parliament was called. This time, Coke did not take a seat in the Commons. As Attorney-General, he was summoned to attend the Lords, and hence was essentially ineligible to return to the Lower House.6 Rather, he played the part of a cunning party boss. In August 1596, before the writs issued to call the election, Coke traveled to Godwick. He wrote to Sir Nicholas Bacon about the weather and the bad harvest, but the two allies must also have met to plot their campaign. 4

Hawarde, Cases in Camera Stellata at 32–33 (4 Feb. 1597). To complete the triumph, a government commission went out to review the account-books for the musters, directed this time to Coke and a familiar group of his allies and relatives—“a roll-call of Heveningham’s opponents.” Smith, County and Court at 284. 5 A. H. Smith, County and Court at 292–93. 6 Early in Elizabeth’s reign, it had been customary for both the Attorney-General and the Solicitor-General to attend the Lords. In 1566, Richard Onslow, the Solicitor-General, had been elected to the Commons before receiving the writ which summoned him to attend the Lords. He was reclaimed by the Commons and then elected Speaker. Popham and later Coke also served as Speaker while holding this royal office. In 1604, Attorney-General Hobart sat in the Commons, but this was exceptional, as he had been elected as a Member for Norwich, then promoted to Attorney-General between sessions of the same parliament, while the assembly was prorogued. Francis Bacon sat in the Commons in 1614, while Attorney-General, but this was under a compromise which barred future Attorney-Generals from the Commons. Swanson, “The Office of Attorney General” at 240–48.

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The knights of the shire for Norfolk, in the end, were Coke’s cousin Henry Gawdy and Nathaniel Bacon’s hot-headed grandson, Sir John Townshend. Philip Gawdy was returned for Thetford, Nathaniel Bacon himself for King’s Lynn, Coke’s friend Sir Henry Spelman for Castle Rising. In Suffolk, the borough of Dunwich had been asked by Essex to return two MP’s of his nomination; instead, the burgesses allowed Coke to choose one nominee, “in respect of his former and continual favor and friendship in many ways.” Coke chose Clipsby Gawdy. For the borough of Orford, he named another candidate. The electors of Eye voted in Anthony Gawdy and the voters of East Looe returned Robert Gawdy.7 Nor was Coke’s role limited to quiet politicking among the gentry; events in Norfolk had foreshadowed the mob politics of the next two centuries. The sheriff reported later on the turbulence: “The unruliness of the common people . . . at the last election of knights of the shire, whose fury (if by the great diligence & discretion of the Queen’s Attorney it had not been stayed) was likely to have grown to great inconvenience.”8 Another issue was emerging: purveyance. Since medieval days, the Royal Household had enjoyed the right to purchase timber, grain, and other staples at below the market price. In the middle years of Elizabeth’s reign, the Household began to compound with county magistrates on this issue, that is, to collect cash payments to cover royal provender, instead of exercising its rights to purchase provender directly from subjects. Beneath the medieval terminology, purveyance and compounding were taxation issues. Where JP’s agreed to pay composition, cash payments were more effectively collected than in-kind provisions, and were probably felt harder by the subjects. Compounding also risked corruption. Collecting composition fees offered opportunities for middlemen to divert funds to their own uses. Predictably, Sir Arthur Heveningham favored compounding with the Household, while Coke, Nathaniel Bacon, and their allies opposed it. The Parliament of 1597 settled little. The Commons voted a heavy triple subsidy, with a vague precatory preamble uttering the wish that taxes 7 Hasler, House of Commons 1558–1603, “Norfolk” and “Suffolk”; Historical Manuscripts Commission, Seventh Report, “Records of the Dissolved Corporation of Dunwich” at 84–85 (1914); Sir John Neale, Elizabethan House of Commons at 228–31. Young Bassingborne Gawdy was advised to seek support from three crucial blocs of voters: his uncle’s servants, tenants who held leases from the Bishop of Norwich and the bailiff of the Duchy of Lancaster, and the friends of Sir Edward Coke. Neale, Elizabethan House of Commons at 54–56. 8 Smith, County and Court at 325. On the final election return, the signatures of Coke and Sir Nicholas Bacon headed the list.

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might be reduced when the war with Spain was over. Depression and dearth absorbed members’ attention. Fifteen bills on poverty and vagrancy were introduced. Only three major statutes were passed: for relieving the poor, establishing poorhouses, and punishing “rogues, vagabonds, and sturdy beggars.”9

Essex in Disgrace In March 1599, the Earl of Essex marched from London at the head of the greatest army ever assembled by the queen, eighteen thousand men, an expeditionary force bound to reconquer Ireland. By November, Essex had conquered nothing and frittered away his army; only four thousand remained. He galloped home without permission, wearing out horses, planning either to lay hands on the Queen or to kneel at her feet and beg her favor. He arrived at Nonsuch House early in the morning, spattered with mud, pushing his way into the Queen’s apartments—embarrassing his royal mistress, who had lacked time to dress or brush her thinning gray hair. As soon as Elizabeth learned that her favorite had not brought his army at his heels, she placed him under arrest. On June 5, 1600, Essex was brought to book for his misconduct, in a proceeding at York House—the home of Lord Keeper Egerton, hence a semi-official venue. Essex faced an extraordinary panel of Privy Councillors, reinforced by four earls, two barons, and four judges, essentially a Star Chamber proceeding by another name. A special hearing had been convened to spare Essex the risks and opprobrium of a formal proceeding. A trial in Star Chamber would almost certainly have meant imprisonment and a heavy fine. The Queen meant to rebuke her favorite and remove him from office—ad reparationem, not ad ruinem, Elizabeth put it. Yet the hearing was not private or confidential. Two hundred citizens were present, “men of quality . . . of every kind or profession, nobility, court, law, country, city.” Clerks were present, to read the charges and record answers. To make its case, the government had dispatched four lawyers, Serjeant Christopher Yelverton and Attorney-General Coke, with Mr. Solicitor Fleming and Francis Bacon in reserve. Essex was charged with disregarding orders: making knights and naming generals against the Queen’s will, wasting time in Munster rather than closing with the rebels in the North, and “that he did parley very 9

Neale, Elizabeth I and Her Parliaments at 2: 325–36.

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basely with Tyrone.” The noblemen present assured their fellow earl that his loyalty had never been doubted. The lords could be conciliatory. The task of humbling Essex, they left to Coke. A listener reported: “The Attorney General would in his speech have proved wilful contempt to have been disloyalty.”10 In the end, the Privy Councillors offered a compromise. They spoke of offense and disrespect and the queen’s possible grace, and could not agree on a penalty. The lawyers were sterner. Egerton spoke of fines and the Tower. The judges “made [the earl’s] contempts very heinous, by the laws of the land, and by examples, and by the civil law, criminal.”11 At nine in the evening, the Lord Chancellor passed judgment. Essex was dismissed from all offices of state—his seat on the Privy Council, his posts of Earl Marshal and Master of the Ordnance. He was also to remain under house arrest, during her Majesty’s pleasure. From the government’s standpoint, the danger was little abated. Essex had been checked, he had been demoted, he remained confined—but he had not been ruined, and he had not yet been reformed, and so he remained as dangerous a political figure as ever. The two hundred citizens must have helped circulate a clearer picture of Essex’s failure in Ireland, but the earl remained popular. People wrote that he had been mild, patient, and discreet before his judges. Few of his followers left him; they had too much to lose by giving up now, with the Queen growing older every day. Even Francis Bacon, who had chimed in for the government at York House, thought it politic to write to his old chief, as soon as the Queen allowed it.12

Dr. Hayward’s Book It soon was clear that Essex meant to risk one last political gamble. The earl made or renewed an offer to James VI of Scotland, to secure him the reversion of the English crown. Letters went out from Essex’s steward, mentioning bedding and draperies which had been bought from 10 Historical Manuscripts Commission, Report on the MSS of Lord De L’Isle & Dudley at Penshurst Place at 2: 468 (1925) (Rowland Whyte to Robert Sidney, 11 June 1600). 11 Rowland White to Robert Sidney, 11 June 1600, quoted in Jardine & Stewart at 230. 12 His lordship, urged Bacon, was flying with flaxen wings, like Icarus. Even so, Essex replied, trumping Bacon’s simile, if he fell, he would land at her Majesty’s feet, and she knew that he was no bird of prey. Jardine & Stewart, Hostage to Fortune at 233–34. Protesting his loyalty to the Queen—to which Essex could hardly object—while offering to give Essex advice—to which the Queen could hardly object—Bacon had done his best to keep a foot in both camps.

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the Earl of Northumberland and were due to be shipped from Milford Haven to London—coded language for weapons. Farms were sold and cash brought in. Many discontented gentlemen gathered nightly at Essex House; others might be reached through the earl’s retinue of Catholic loyalists and tame Puritan preachers. The earl spoke angrily of the Queen’s crooked mind and crooked carcass.13 Against this, Coke and Cecil set in motion a counterplot.14 The year before, while Essex was in Ireland, a history-book had caused a sensation in London. It was The first part of the life and raigne of King Henry IIII, by Sir John Hayward, a civil lawyer. The book had appeared in February 1599, with a dedication to Essex. Within a month, Archbishop Whitgift had ordered that the dedication be cut out of all unsold copies. A second edition came out in May; Whitgift had all the copies seized and burned. The Queen had been “mightily incensed” at Hayward’s book, Francis Bacon recorded. She thought it “a seditious prelude . . . [and] said she had good opinion that there was treason in it.”15 Given the royal displeasure, Whitgift seems to have suppressed Hayward’s book in order to protect Essex. The archbishop was the earl’s most loyal ally on the Privy Council; their friendship went back two decades, to the days when young Robert Devereux had been Whitgift’s student at Trinity.16 By February 1600, Coke and Chief Justice Popham had turned their attention to Hayward. Questions were drafted, written to uncover any political reasons for the book. In mid-summer, after the York House proceeding, the pace of this inquiry intensified. “Although Hayward’s book 13 Robert Lacey, Robert, Earl of Essex at 250–85 (New York: Atheneum 1971); A. L. Rowse, “The Tragic Career of Henry Cuffe,” in Court and Country: Studies in Tudor Social History (Athens, Georgia: University of Georgia Press 1987), 211–41, 231–33. 14 The following discussion draws upon Cyndia Susan Clegg, Press Censorship in Elizabethan England (Cambridge UP 1997); Richard Dutton, “Buggeswords: Samuel Harsnett and the Licensing, Suppression, and Afterlife of Dr. John Hayward’s The First part of the life and reign of King Henry IV,” Criticism 35: 305–39 (1993); Leeds Barroll, “A New History for Shakespeare and His Time,” Shakespeare Quarterly 39: 441–64 (1988); and Margaret Dowling, “Sir John Hayward’s Troubles Over His Life of Henry IV,” The Library (4th Series) 11: 212–24 (1930). Also worth consulting are the exchange of articles between Ray Heffner and Evelyn May Albright: Albright, “Shakespeare’s Richard II and the Essex Conspiracy,” PMLA 42: 686–728 (1927); Heffner, “Shakespeare, Hayward and Essex,” PMLA 45: 754–80 (1930), and Albright, “Shakespeare’s Richard II, Hayward’s History of Henry IV, and the Essex Conspiracy,” PMLA 46: 694–719 (1931). 15 Francis Bacon, Apothegmes, quoted in Gregg, Press Censorship in Elizabethan England at 205. 16 Gregg emphasizes this alliance. Facing the tribunal at York House, Essex initially knelt to answer the council members’ questions; it was at Whitgift’s request that he was allowed to stand, and finally to sit. Jardine & Stewart at 229.

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had been carefully scrutinized almost from the time of its publication,” Richard Dutton has aptly put it, “it was not found to be of treasonable intent until it was politically convenient that it should be so.”17 On July 11, Coke interrogated the historian. Present were the Lord Keeper, Lord Admiral, the Chancellor of the Exchequer, and Robert Cecil—but significantly, not Archbishop Whitgift. Coke forced a confession out of Hayward, “that the Doctor selected a story 200 years old, and published it last year, intending the application of it to this time.” Hayward admitted to writing on the theme of a king who governed badly, conferring benefits on favorites, until these abuses led to his deposition and murder. Hayward further confessed that he had brought into this tale material not found in earlier chronicles, stories “tending to prove that deposers of kings and princes have had good success.”18 On July 13, Hayward went to the Tower. That same day, Coke questioned John Wolfe, the printer who had published the book. Within a week, Coke was demanding further answers from Samuel Harsnett, the cleric who had licensed the history’s publication. Wolfe testified that he had repeatedly tried to ask Essex, face to face, what the earl thought of the dedication, but each time had been rebuffed. Harsnett complained that the introduction had been “foisted” upon him, without his knowledge.19 This was hardly clear-cut evidence of treason, but Coke considered what might be made of it. Essex had been punished for making a truce with the Earl of Tyrone. From that willful disobedience, Coke pushed to make out charges of treason against the earl: Namely that he plotted and practiced with the Pope and king of Spain for the deposing and selling of himself as well as the crown of England . . . . His permitting underhand that treasonable book of Henry IV to be printed and published; it being plainly deciphered, not only by the matter, and by the epistle itself, for what end and for whose behalf it was made, but also the Earl himself being present so often at the playing thereof, and with great applause giving countenance to it.20

These charges were never formally brought. Nonetheless, the investigation had an effect. On July 26, Essex received another check. “My Lord of Essex remains prisoner, [though] at his own custody,” Dudley Carle17

Dutton, “Buggeswords,” Criticism at 3: 316. CSPD 5: 449 (11 July 1600). 19 CSPD 5: 450–53 (13–20 July 1600). Harsnett would end his career as bishop of Norwich, and in that post, three decades later, would also face Coke’s opposition. 20 CSPD 5: 455 (ca. 22 July 1600). 18

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ton reported. “The Queen had given him liberty to go into the country, but recalled it again upon the taking of Dr. Haywood [sic] who for writing Henry the fourth was committed to the Tower.”21 In October, as tensions built, came bloodshed at Norwich. It was a political quarrel, a friend of Cecil maiming a follower of Essex—Sir Robert Mansell fighting a duel with Sir John Heydon. The two knights fought savagely, clumsily, “as if they ran at tilt with their rapiers.” Heydon wounded Mansell eight times. Mansell wounded Heydon twelve times and finally cut off his hand. At the Norwich quarter-sessions, a petition about purveyance had circulated, and Heydon and Mansell had exchanged words. When the duel ended, as Heydon bound up his bloody wrist and asked for mercy, Mansell drew out “my articles [the petition] from my breast where I carried them and brought them with ink and pen to him to sign.”22

Essex in Rebellion It was an unquiet winter.23 Suddenly then, at the end of the first week in February 1601, the government acted. On Saturday, February 8, Essex was summoned to the Council board. He refused, claiming illness—and knowing himself what was afoot, that the government meant to defuse his conspiracy, he ordered his followers to gather at Essex House. On Sunday morning, February 9, a deputation was sent to him: Lord Keeper Egerton and Chief Justice Popham, Essex’s uncle Sir Francis Knollys, his kinsman the Earl of Worcester. Essex took these emissaries hostage. Then he and his friend the Earl of Southampton led their men out into the street, nearly three hundred strong. They headed east into London, rather than west toward the palace at Westminster, hoping to be joined by reinforcements. No reinforcements joined them. The Earl of Sussex 21 Dowling, “Sir John Hayward’s Troubles over His Life of Henry IV,” The Library (4th Series) at 2: 212. 22 Smith, County and Court at 303. A month earlier, Heydon’s brother, Sir Christopher Heydon—also knighted by Essex—had challenged Coke’s hot-headed friend Sir John Townshend. The Privy Council had intervened to stop that duel. Coke offered to serve as Townshend’s surety for keeping the peace. Neale, The Elizabethan House of Commons at 52–55. With Mansell, Sir John Neale wrote, with the Duchy of Lancaster, “amenable to Cecil’s influence, Sir John Townshend, Edward Coke: what were these, if not elements of an anti-Essex, antiHeydon group in Norfolk?” Id. at 54. 23 In January, Cecil’s men sensed something amiss. Hayward was interrogated again, with Coke wringing out the civilian’s longest confession to date. CSPD 5: 539 (22 Jan. 1601).

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failed to appear, the sheriff of London did not turn out with the City’s trained-bands, and seizing the hostages had made the earls too late to catch the crowds leaving mid-morning services at church. By early afternoon, realizing his error, Essex turned to retreat. Word must have reached the earl of measures which the Queen had taken. Her guards at Whitehall, whom he had hoped to overpower, had been reinforced. A barricade of coaches had been thrown across the Strand at Charing Cross. Artillery-pieces were being wheeled out of the Tower. And then, en route to Essex House, desperately hoping to ransom himself with his hostages’ lives, Essex collided with a company of pikemen drawn up at Ludgate. They were the servants of the bishop of London—which meant, the picked men of Richard Bancroft’s household, turned out with helmets and breastplates, with a veteran captain at their head and Bishop Bancroft himself trailing a pike among the ranks. Firing broke out; Bancroft’s pikemen stood off a half-hearted charge by Essex’s followers; and when press of pike was ordered, the counterattack, Essex’s dispirited men began to run. The earl stumbled back to his mansion at dusk. The Queen’s troops were in place around the building. Cavalrymen were cantering into the city, Archbishop Whitgift’s personal troop. The cannon from the Tower now were being trundled through the streets. Essex asked for a truce, burned his papers, and handed over his sword. His abortive coup d’etat had lasted twelve hours.24 The pages of the State Papers echo with the aftermath of Essex’s coup. Twenty-eight prisoners are held at the Compter in Poultry, eleven at the Compter in Wood Street, six at the Lord Mayor’s house, one hundred in the Tower. Traitors’ names, Coke writes in the margin of his memorandum, and begins taking examinations. The Earl of Rutland, Bridget Paston’s cousin, confides in his kinsman. Coke examines other witnesses: the sheriff of London, the sheriff ’s wife, the sheriff ’s servant; Lord Monteagle the Catholic, impecunious Lord Cromwell, Sir Charles Danvers, Sir Gelly Meyricke, knights, soldiers, gentlemen. Henry Cuffe, expecting little mercy, offers a snide, donnish defense: When Mr. Cuffe, secretary to the Earl of Essex, was arraigned, he would dispute with him in syllogisms, till at last one of his brethren said, Prithee, brother, leave off, thou dost dispute scurvily. Cuffe was a smart man and a great scholar and baffled him. Said Coke, Dominum cognoscite vestrum 24 Lacey, Robert Earl of Essex at 286–97; White, Lives of the Elizabethan Bishops of the Anglican Church at 378–79.

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The End of the Reign [Know your own Master]. Cuffe replied, My Lord, you leave out the former part of the verse, which you should have repeated, Acteon ego sum, reflecting on his being a cuckold.25

Essex on Trial On February 19, Essex and Southampton were brought to Westminster Hall for trial. Aided by Serjeant Yelverton, Coke presented the government’s case. Coke laid out carefully the doctrine upon which the indictment was based. The thought of treason to the prince, he announced to the lords assembled to try the case, carried a death sentence, and anyone who rebelled was presumed to seek the destruction of the prince. It was treason to raise “power and strength” when the government was settled. It was treason to refuse a royal command to dissolve troops which had been gathered. It was treason to take a town by force. “But my lord of Essex,” Coke continued, had gone far beyond that; he had “levied power to take the Tower of London, and to surprise the Queen’s own court.”26 There was something peculiarly sinister about the matter, something unknown, “wherein was contained the whole plot,” so secret that Essex carried it in a purse next to his own breast. This was not all; for the earl he would call a Parliament; and himself decide all matters which did not make for his purpose. A bloody Parliament that would have been, where my Lord of Essex, that stands now all in black, would have worn a bloody robe! But now in God’s judgment, he of his earldom shall be Robert the Last, that of a kingdom sought to be Robert the First.

The session—obviously—was as much state proceeding as criminal trial. Presiding was Lord Buckhurst as Lord Steward of England. Close by him 25

CSPD 5: 545–96; Aubrey, Brief Lives at 163. Cuffe’s allusion was to the stag-horns magicked onto Acteon’s head by Diana as a punishment for observing her nakedness. 26 The precedent of the Oxfordshire rising, in which rebellion had been broadly equated with treason, was cited against Essex. Because the law “made such construction of the acts of mechanical men, what shall be thought of the acts of earls and other strong persons”? Bellamy, The Tudor Law of Treason at 80. At another point, Coke argued that the Queen had shown exceptional mercy in not having Essex “in flagrante crimen . . . presently put to the sword.” Bellamy at 252. The trial of the earls is reported in various editions of the State Trials, in the state papers, in other manuscripts, by newswriters, and by Camden’s Annales. The reports are synoptic and essentially consistent. The following reconstruction of the proceedings brings together dialogue reported by these various sources.

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sat the assembled judges of King’s Bench, Common Pleas, and Exchequer. Twenty-five earls, viscounts and barons, peers of Essex and Southampton, filed in and took their seats. Screening the eminences on their dais were seven serjeants-at-arms, their maces laid on the floor before the Lord Steward, and forty red-liveried men of the Queen’s Guard, commanded by their captain, Sir Walter Ralegh. The trial of the earls followed the form of its day. The English criminal trial, until about the middle of the eighteenth century, was less than the highly structured adversarial proceeding of the present day. It relied on confrontation: produce the accused, produce the evidence, let the accused answer, assess his reaction.27 Coke presented the government’s case. After outlining the treason charges, he introduced the evidence which proved them, nine written examinations and the testimony of five live witnesses. Essex was allowed to answer and each charge and respond to each witness seriatim. “Will your lordships give us our turns to speak,” he began by asking the panel. “Mr. Attorney playeth the orator and abuseth your lordships’ ears with slanders against us. These are the fashions of orators in corrupt states, and such rhetoric is the trade and talent of those who value themselves upon their skill in pleading innocent men out of their lives.” Charges were met with denials and pursued with pointed rejoinders, and the trial became unruly. Coke asked why Essex had raised an armed following and refused to send his men away. Essex blamed his troubles on court intrigue. When Ralegh testified, the earl mocked him, first asking that Ralegh be sworn on a Bible, and then suggesting that no oath would bind the man: “What booteth it to swear the fox?” Coke asked Essex why he had imprisoned the Queen’s messengers; Essex insisted that they had been held for their own protection. Coke raised sinister insinuations about the favor which Essex had shown to Roman Catholics; the earl claimed that Robert Cecil meant to bring in the Spanish Infanta to succeed Elizabeth. Immediately, as if from a trap door—in fact, from a hidden door—Cecil appeared in the courtroom to deny the accusation. A shouting match broke out between two personal enemies, Southampton in the dock and Lord Grey on the jurors’ bench. Chief Justice Popham, 27

J. H. Baker, “Criminal Courts and Procedures at Common Law 1550–1800,” in Crime in England 1550–1800, ed. J. S. Cockburn (Princeton UP 1977), 49–71; John H. Langbein, “The Criminal Trial Before the Lawyers,” University of Chicago Law Review 45: 263–316 (1978) and Langbein, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50: 1–136 (1983).

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who had been held as one of Essex’s hostages and was now sitting as one of Essex’s judges, now took on a third role, as witness; he was sworn and testified what he had seen that fatal Sunday morning within Essex House. Throughout the day, Essex denied that anything he had done could count as an act of treason: not gathering weapons, not issuing them, not writing down which of his men would seize the palace’s gates and presence chamber, not leading armed men out into a bloody street-fight. Coke pointed out that treasonous intent could reasonably be presumed to lie behind treasonous actions: “Our law judges the intent of the overt act,” he reiterated. “Well, plead you law, and we will plead conscience,” Essex answered. His hauteur had become bravado.28 Francis Bacon was brought in to support Coke. He spoke of Cain and Pisistratus and put a kindly face on his own involvement with the earl: “My lord, I spent more hours to make you be a good subject, than upon any man in the world beside.” Essex had been haughty toward Coke; toward Bacon he felt, even now, a sense of betrayal. That could be understood. All present in the hall must have known how long and how craftily Bacon had offered advice to Essex—that Bacon had advised the earl on how to take power as well on how to wait for it—and that Essex had given Bacon more for his service than ever had the Queen. He wanted to challenge Bacon’s testimony, Essex told his judges. He wanted to call his own witness on this point. “I call forth Mr. Bacon against Mr. Bacon,” he said. Some manuscripts report that Coke, when he opened the government’s case, began by defining law. May it please your graces . . . . In all good governments, men’s judgments and answers are and ought to be directed by reason and precedent . . . . The laws, that by long experience and practice of many successions of grave, learned and wise men, have grown to perfection, are grounded no doubt 28 The Earl of Southampton, it was reported, “spake very well. . . and as a man that would fain live, pleaded hard to acquit himself, but all in vain for it could not be; whereupon he descended to entreaty, and moved great commiseration.” John Chamberlain to Dudley Carleton, 24 Feb. 1601. Coke won from Southampton a crucial admission, that Southampton had carried a pistol during the melée. Yet, peculiarly, it was Southampton who uttered the most ironic and interesting line of the trial: “Mr. Attorney, you speak all this as if it were as true as the gospel.” The mockery was an unwitting piece of self-revelation. That enigmatic nobleman, for whom Shakespeare’s sonnets were written, who honored Marlowe, who had himself painted in his Tower cell with his long flowing hair and bright eyes and the same unfathomable stare as his cat, would die on active service in the Netherlands, fighting for the Protestant cause.

The End of the Reign upon greater and more absolute reason than the singular and private opinion or conceit of the wisest man that liveth in the world can find out or attain to. Therefore the law shall stand for reason.

This language is close, suspiciously close, to the words Coke used in his most famous definition of law, which came a full quarter-century later in his Commentary Upon Littleton. Reports of state trials are not known for their scrupulous textual accuracy. A copyist or editor may have amplified Coke’s speech of 1601 with his celebrated text of 1628. Then again, Coke himself, with his long memory and penchant for taking notes, was perfectly capable of anticipating or repeating himself, and every Tudor schoolboy had been taught that the rule of law was inimical to tyranny. Coke could remember that passage from the Progymnasmata, and he could count on the judges and peers recalling the same. It was a valid point and it would have played well. So let that passage introduce the lawyers’ charges and the government’s ultimate victory: Essex guilty, Southampton guilty, the earls’ advisers and aides all guilty, Essex’s followers hounded before petit juries, convicted, condemned, petitioning the Queen for mercy. Essex was beheaded. Sir Christopher Blount and Sir Charles Danvers were beheaded.29 The Earl of Southampton was sentenced to death, but reprieved. Anthony Bacon, likely spared because of his brother’s cooperation with the state, was allowed to die quietly of natural causes. Sir Gelly Meyricke, Essex’s steward, and Henry Cuffe, Essex’s secretary, were hanged. Unlike his fellows, Cuffe refused to admit any guilt. Years before, he had given a Latin oration to welcome the Queen to Oxford. Now, from the scaffold, he delivered a final, polished address: I am here adjudged to die for plotting a plot never acted, for acting an act never plotted. Justice will have her course. Accusers must be heard. Great29 Justice was swifter for Sir Thomas Lee. Lee had pursued, for twenty-five years in Ireland, a career of brutality and back-handed dealing. A longtime friend of the Earl of Tyrone, he had helped arrange Essex’s parley with the rebel. Lee was among the knights who gathered at Essex House and among the inner circle who watched Richard II. On the evening of February 12, Lee was discovered in the palace at Whitehall, just outside the door to the Privy Chamber, sweating heavily and asking where the Queen would dine. Lee was tried for treason on February 13 and executed on February 14. He protested that he had meant only to return with “half a dozen resolute men” and constrain Elizabeth to hear the pleas of Essex and Southampton. To this, Coke immediately brought in testimony “that Capt. Lee should say, that he had humbly sued to her majesty this twelvemonth, that he might be employed in some service, wherein he might have some throats cut.” James P. Myers, “Murdering Heart . . . Murdering Hand”: Captain Thomas Lee of Ireland, Elizabethan Assassin,” Sixteenth Century Journal 22: 47–60, 59 (1991).

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The End of the Reign ness will have the victory. Scholars and martialists (though learning and valor should have the preeminence yet) in England must die like dogs and be hanged. To mislike this were but folly; to dispute of it but time lost; to alter it impossible, but to endure it manly and to scorn it magnanimity. The Queen is displeased, the lawyers injurious, and death terrible; but I crave pardon of the Queen, forgive the lawyers and the world, and desire to be forgiven, and welcome death.”30

Cuffe’s contempt went unnoticed by the lawyer who had sent him to the gallows. That same day, Coke was questioning other witnesses.31

The Players of the Globe On Saturday, February 8, the day before his botched rebellion, Essex and ten of his aides had crossed the Thames to Southwark, to the Globe Theatre, where the Lord Chamberlain’s Men performed Richard II. Shakespeare, a notable actor who had been honored by Southampton’s patronage, may have appeared that afternoon in his own play. Sir Gelly Meyricke had arranged the performance. The actors demurred at first, “holding that play of King Richard to be so old and so long out of use that they should have small or no company at it,” so Meyricke offered them forty shillings above whatever the play brought in. These facts emerged from Coke’s investigation of the Essex conspiracy, during the examination of Augustine Phillips, Shakespeare’s friend and partner in the playhouse. Coke turned against Essex the content of the play and Hayward’s book. The earl might speciously claim, Coke argued, that he had meant only to seize the court, and not to harm the Queen, but “how long lived Richard the Second after he was surprised in the same manner?” A month later, when prosecuting Essex’s followers, Coke cited the play as a signal overt act: Against Sir Gilly Merrick, Mr Attorney urged . . . [that] the story of Henry IV being set forth in a play, and in that play, there being set forth the killing of the king upon a stage; the Friday before, Sir Gilly Merrick and some others of the Earl’s train having a humor to see a play, they must needs have the play of Henry IV. The players told them that was stale, they should get nothing by playing of that, but no play else would serve; and Sir Gilly gives 30

CSPD 6: 15 (13 March 1601). Three days later, Coke dispatched to Bacon twenty-five papers concerning Essex’s treasons, documents which Bacon revised into a pamphlet, Declaration of the Practices and Treasons attempted and committed by Robert late Earl of Essex and his Complices. CSPD 6: 15 (16? March 1601); Jardine & Stewart at 250–51. 31

The End of the Reign 40 shillings to Philip the player to play this, besides whatsoever he could get.32

In fact, Essex and his men may have tried to use the tragedy to drum up sympathy for their cause. Queen Elizabeth supposedly remarked that the play had been staged forty times, “in open streets and houses.”33 “I am Richard the Second, know ye not that,” Elizabeth later told William Lambarde. She had retained one final souvenir of Essex, just as she continued to wear the jewel which Dr. Lopez had given her. On the evening of Shrove Tuesday, February 24, in the dark hours between the day the Queen signed the death-warrant for her last favorite and the damp morning on which the earl walked to the scaffold, Elizabeth commanded the players of the Globe to perform for her at court. The name of the play is not recorded. The performance, it was explained, was only the customary Shrovetide amusement, nothing more. England’s greatest common lawyer and England’s greatest playwright probably never met, unless Coke pushed past Shakespeare on his way to interrogating Phillips. Yet one man seems to have borrowed from the other. In Richard II there is one of Shakespeare’s fluid patriotic speeches, John of Gaunt’s celebration of his native island: This royal throne of kings, this scept’red isle, This earth of majesty, this seat of Mars, This other Eden, demi-paradise, This fortress built by Nature for herself Against infection and the hand of war, This happy breed of men, this little world, This precious stone set in the silver sea, Which serves it in the office of a wall, Or as a moat defensive to a house, Against the envy of less happy lands; This blessed plot, this earth, this realm, this England . . . That England that was wont to conquer others Hath made a shameful conquest of itself.34

Five years later, at the Norwich assizes, Coke seems to have recalled this passage. He was giving his charge to the grand jury, reminding his listeners of the Gunpowder Plot. Had the plot succeeded, he recalled, 32 E. K. Chambers, William Shakespeare: A Study of Facts and Problems at 2: 325–26 (Oxford UP 1930) (collecting most examinations and accounts relevant to the Essex conspiracy trials). Forty shillings was probably what a sold-out house would have yielded. 33 John Nichols, Progresses and Public Processions of Queen Elizabeth at 3: 552 (1823). 34 William Shakespeare, “The Tragedy of King Richard the Second,” I, iv, 40–66.

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The End of the Reign Only this had their horrible attempt taken place. This sea-environed island, the beauty, and the wonder of the world. This so famous and far-renowned great British monarchy, had at one blow endured a recoverless ruin, being overwhelmed in a sea of blood, all those evils, should have at one instant happened . . . . Our conquering nation, conquered in herself: her fair and fertile bosom, being by her own native (though foul unnatural children) torn in pieces, should have been made a scorn to all the nations of the earth. This so well planted, pleasant, fruitful world, accounted Eden’s paradise, should have been by this time, made a place disconsolate, a waste and desert wilderness, generally overrun with herds of blood-desiring wolves.35

Coke borrowed Shakespeare’s tropes and phrases. The language, briefly, even flows in iambs: fair and fertile, so well planted, pleasant, fruitful world.36 Even when Coke’s own voice reasserts control, when he considers the blood-desiring wolves, a touch of the poet may remain. The playwright’s words had filtered through the lawyer’s memory, the memory of a man who hawked and hunted and knew his nation’s history. Coke may have recalled, at some unconscious level, that the last wolf in England was said to have been slain by John of Gaunt.37

Coke, Ralegh, and Baynham By mid-summer, most of Essex’s men were free. The Earl of Rutland was fined £20,000 for his freedom. The Earl of Bedford was fined £10,000, Lord Sandys was fined £5,000, Lord Monteagle was fined £4,000; a fine of £3,000 pushed Lord Cromwell into insolvency. Lesser conspirators rode home to the Midlands, forced to extremes to pay their fines: men named Catesby, Tresham, Grant, Keyes. They would not forget, and they would be heard from again.38 35 The Lord Coke His Speech and Charge, with a Discoverie of the Abuses and Corruption of Officers (STC 5492) Sig. F1 r–v (1607). This quotation adopts the suggestion, made by a reader for Stanford University Press, that the baffling phrase sea inuyconde is a misprint for sea invyroned. 36 Marc L. Schwarz, “Sir Edward Coke and ‘This Scept’red Isle’: A Case of Borrowing?,” Notes and Queries 233: 54 (1988). 37 At Rothwell in Yorkshire, where the John of Gaunt public house claims to commemorate the site. 38 For more than a year, one final dispute smouldered in Star Chamber. John Daniel, husband to one of the Countess of Essex’s ladies-in-waiting, had held or copied certain compromising letters which the late earl had written—obtained for him by his Dutch-born wife, and for whose return he had demanded that the Countess pay £3,000. All parties showed an unpleasant venality. CSPD 6: 57–59, 144, 235; Chesters, “John Daniel of Daresbury,” Transactions Of the Historic Society of Lancashire and Cheshire at 118: 1–17.

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Robert Cecil and his allies divided among themselves the spoils. To Cecil fell a prize so great that only in secret could it be considered: with Essex removed, the way was open for cannier men to settle the English succession on the king of Scotland.39 To Coke and Ralegh and others, other profits were forthcoming, out of the misfortunes of Essex’s men. Sometime in the summer of 1601, Ralegh penned a brief letter to Coke. Master Attorney: it would greatly expedite my business for Baynham if you would so please to write me a few lines to this effect—that whereas I entreated you to know whether her majesty might reap any profit by Baynham’s death, or whether Baynham were farther in any of these treasons than the common sort of the Lord of Essex’s servants and followers, you will answer that you have looked into his estate and have delivered your knowledge. For the land in Essex, you shall order it as it shall please you.40

Ralegh signed this as “your most assured loving friend.” Between Elizabethan men of affairs, that closing spoke of profit. Money has been made, money is being divided, friendship has been assured; gold coins ring quietly and cheerfully as they slide across the tabletop. The Baynham with whom Ralegh had business was Sir Edmund Baynham, one of Essex’s Irish knights. What Ralegh earned for saving Baynham, and what Baynham saved by commissioning Ralegh’s intercession, seems to have been divided with Coke.41 Edmund Baynham was the son of William and Martha Baynham. Martha’s first husband had been William Wheatley, a Norfolk gentleman, one of Coke’s neighbors at Holkham. Anthony Wheatley—William and Martha’s son, thus Baynham’s half-brother—had one child of his own, Muriel. Muriel was the little girl (three years old in 1600) who stood to inherit lands at Holkham. Coke may have already determined that tenyear-old John Coke, stoutest and loudest of his six younger sons, would make the most fitting husband for Muriel. He doubtless had already as39 Into the mystery of the black bag which Essex wore on a string beneath his shirt, and the mysterious letters which the earl had burned, Coke had not plumbed as deeply as he might. Nor had Coke made much of what Essex’s fellow conspirators knew about James VI, a point which defendants raised and the prosecutors ignored. Nor had Coke and Cecil discussed in public whether the parliament which Essex had meant to call would have resolved what earlier parliaments had perennially debated: which claimant would follow Elizabeth. 40 Letters of Sir Walter Ralegh at 203–4 (Ralegh to Coke, 20 Feb. 1601–13, Aug. 1601). 41 The following discussion draws on S. E. Sprott, “Sir Edmund Baynham,” Recusant History 10: 96–110 (1969–70), and Bernard Mellor, “Introduction” to The Poems of Sir Francis Hubert at xxxi–xxxv (Hong Kong UP 1961).

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certained that Muriel’s inheritance included lands outside Norfolk, among them the manor of Powershall in Essex, an estate worth at least £1,000.42 On the pedigree which he had ordered drawn up for Muriel, Coke must have eyed frequently the name of Edmund Baynham: Muriel’s uncle, the life tenant of Powershall, the man who had daily control over property which would someday be Muriel’s. In February 1601, Baynham was convicted of treason, and all his lands became forfeit to the Crown. In August he received a pardon. Two other convicted traitors were freed with him: thus, William Camden wrote, “were all their lives spared, which Baynham redeemed with a sum of money paid to Ralegh.” This did not make an end of matters; it only began the process. Baynham’s lands were transferred to two lawyers (one his brother-in-law, the other Ralegh’s steward). The lawyers sold off some of Baynham’s lands, but let him keep most of his property— including Powershall, which was re-granted to him on a thousand-year lease. In whatever form Ralegh took assurance of his new-made friendship with Baynham, it was not in the form of lands in Essex. His comment to Coke, to order the lands in Essex as it should please the AttorneyGeneral, reflects a favor thrown in Coke’s direction. Baynham’s release from the Tower was accompanied by a royal order naming Muriel as his heir. In this same period, Coke further undertook to serve as Muriel’s guardian. When it came to ensuring that his grandchildren received the Wheatley property—particularly now that an attainder had complicated the issue—Coke had laid a second claim to the property and given himself authority to take action.43

The Queen’s Last Years In April 1601, Coke and Bacon quarreled publicly, at the bar in Westminster Hall. How the exchange began is unclear and we have only 42 C. W. James at 93–96. Only months before, in Michaelmas term of 1600, Coke helped orchestrate a lawsuit between the Armiger family and Lady Anne Gresham over land at Holkham, likely to define rights he hoped to acquire. Read’s Case, 6 Co. Rep. 24a (1600). Gratifyingly, Muriel’s grandfather had been chief prothonotary to the Common Pleas, and the lands which her marriage brought into the Coke family, concentrated near Holkham, helped ensure that the family’s principal seat would be there. 43 Baynham was only as grateful as might have been expected. In 1604, he served as the Gunpowder Plotters’ messenger to the Vatican. This cost him his English lands, which Coke, after further bluffs, feints, and legal stratagems, finally landed in November 1607.

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Bacon’s version of what transpired, a letter of complaint about Coke’s “high words” and “strange light terms.” “If you have any tooth against me, pluck it out,” Coke told Bacon, “for it will do you more harm than all the teeth in your head will do you good.” “Mr. Attorney,” Bacon replied, “I respect you, I fear you not: and the less you speak of your greatness, the more I shall think of it.” “I think it scorn to stand upon terms of greatness with you, who are less than little, less than the least,” fumed Coke. His rhetoric was too heavy for this verbal fencing, and Bacon snapped at him, “I have been your better, and may be again, when it please the Queen.” At this new, lower level, at the game of snub-and-be-snubbed, Coke was more than a match for Bacon. He bit back hard. He told Bacon not to meddle with royal business, but to mind his own instead. He asked sarcastically whether Bacon meant to have him arrested for debt. (Three years before, exiting the Tower, Bacon had been collared and held by a goldsmith’s debt collectors.) He mocked Bacon with being “unsworn,” belonging to a lower class of royal servant, like a tenured professor deriding an adjunct. Coke spoke, Bacon protested, “as if he had been born Attorney General.”44 That final clause explains much of the two men’s rancor. Bacon’s father had been Lord Keeper. Bacon’s complaint about Coke has an undertone, unvoiced but audible: he speaks as if he had been born Attorney General, a place that was rightfully mine. For twenty years now, Coke had worked and planned with Bacon’s prosperous half-brothers; he had argued against Bacon in court; he had collected for himself Bacon’s father’s notebooks; he had slipped past Bacon with a convenient marriage—Coke was now Robert Cecil’s nephew by marriage, while Bacon remained a cousin. The relationship between the two men was almost that of family; so too the tension and resentment. The rivalry between Coke and Bacon reflected the tension between the practical lawyer and the philosopher, the independent man and the chronic debtor, the ally of Cecil and the friend of Essex. It also reflected the lack of sympathy between the industrious poor relation and the talented, indolent, prodigal son. His years as the queen’s Attorney-General were the making of Coke. He could count on, daily, the emoluments to which this office entitled him, fees for the processing of legal transactions. Around 1600, Thomas 44 Letters and Life of Sir Francis Bacon at 3: 3 (Francis Bacon to Robert Cecil, April 29, 1601); Jardine & Stewart at 253–55.

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Wilson sourly wrote of a lawyer of “meaner degree”—Wilson meant, below the Common Pleas serjeants-at-law, “namely the Queen’s Attorney— Edward Coke—who within these ten years, in my knowledge, was not able to dispend over £100 a year, and now . . . may dispend between £12,000 and £14,000.”45 Lady Hatton’s property must have helped. Coke and his wife were quarreling over it already. So did monies raked in from wardships and the royal manors which were being dealt Coke’s way. The network of patronage which Coke controlled grew ever more extensive. For the last parliament of Elizabeth’s reign, which convened in October 1601, he must have chosen or heavily influenced the election of a dozen MP’s. In Norfolk and Suffolk alone, there were four Gawdy cousins, his nephew Francis Mingay, his connections Henry Warner and Thomas Knyvett, his friends John Peyton and Robert Townshend, duelist Robert Mansell, and rehabilitated Puritan Sir Richard Knightley. At Corfe Castle, a pocket borough he had acquired through his marriage to Lady Hatton, Coke put in Sir John Davies (not Essex’s old minion, but the lawyer and poet).46 In legal matters, Coke’s recommendation carried even more weight. In January 1603, among the serjeants who were called was Robert Barker. Coke praised Barker lavishly: “a grave and learned man, held sufficient by all, and recommended by one whom the Queen knows. And who would think it a favor for his voice to be respected, as his place gives him a good means to know men’s sufficiency.” Other views were harsher. John Chamberlain wrote of Barker’s promotion that “the world finds no other reason but that he is Master Attorney’s brother-in-law, or else (as one said) that among so many biters there should be one Barker.”47 Marriages offered advancement, or certainly desirable alliances. From the Temple, on August 3, 1601, Coke wrote to Sir Bassingborne Gawdy: After my very hearty commendations, having appointed by the goodness of God, for the solemnization of the marriage of my eldest daughter on the eighth of September next, at my house in Holborn, I am desirous to have my kinfolks allied and friends to be in some sort partakers of my comfort, amongst whom I have specially desired your presence, and company, I know the way is long and the journey painful, and withal I know your inward and affectionate love toward me, I will do my best to recompense both with the 45

Neale, Elizabethan House of Commons at 294. Hasler, House of Commons 158–1603, “Norfolk,” “Suffolk” etc. 47 CSPD 6: 285; Norman E. McClure, Letters of John Chamberlain1 at 185 (Philadelphia: American Philosophical Society 1939); Hasler, House of Commons 1558–1603, “Robert Barker III.” 46

The End of the Reign best welcome and kindness I can at that time and shall always endeavor to make full requital as occasion shall serve, with all the thankful readiness and so I commit you to the blessed protection of the Almighty.48

Young Anne Coke was marrying Ralph Sadleir of Standon Lordship in Hertfordshire. Ralph was the grandson, namesake, and heir of Sir Ralph Sadleir, who had garnered a fortune from his service to Henry VIII. Perhaps Coke’s townhouse in Holborn proved too cramped for the wedding; in the end, Robert Cecil let Anne be married out of Burghley House.49 The wedding was ostentatious, the sort of occasion where spectators estimate the cost. John Chamberlain said that Coke gave Anne a dowry of £3,000, “and furnished the feast with all magnificence. The plate given by friends to the bride was above £800.”50 Being Attorney-General was not enough; a lord’s income was not enough; profitable marriages were not enough: Coke wanted a knighthood. He bid for it in the autumn of 1601, when he hosted Queen Elizabeth at his mansion in Stoke Poges. The Queen “was most sumptuously entertained,” it was remarked, “and presented with jewels, and other gifts, to the amount of a thousand or twelve hundred pounds.” To prepare for the occasion, Coke had played both courtier and couturier. He wrote to Cecil, who seems to have shared the costs: “My wife her learned counsel hath very exactly considered of every part of the jewel. A friend of mine hath provided another of as good value. Which shall best like you shall be presented. I have sent this bearer to take direction for the gown. To me at this time trifles are of importance, as you best know.” No knighthood followed, but the Queen had conveyed her thanks to her Attorney-General. To Coke’s household she sent berries picked in her own garden. At the christening of Coke’s daughter Elizabeth—born in August 1599, the first child of Coke’s second marriage—she had given a heavy gilt bowl and deigned to be godmother, acting by deputy through Lady Oxford.51 In rooms less grand, behind the banqueting halls, the queen’s servants continued their perennial struggle to cover expenses. In 1597, Elizabeth 48

Letterbook of Sir Bassingborne Gawdy, fo. 82v–83r, Norfolk Record Office, Walsingham/WLS (Merton) MSS, XVII/1, 410x5, Entry 209. 49 Historical Manuscripts Commission, Report on the MSS of Lord De L’Isle & Dudley Preserved at Penshurst Place 2: 534 (1925) (Francis Woodward to Sir Robert Sydney, 16 Sept. 1601). 50 Chamberlain to Carleton, 17 Dec. 1601. 51 Nichols, Progresses of Queen Elizabeth at 3: 467, 568; Salisbury MSS 11: 373 (August 1601); Vade Mecum at 118; C. W. James at 29. The other godparents were the dowager Countess of Derby and Lord Buckhurst.

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had promised the Commons that she would call in monopolies. In 1601, with another Parliament ready to assemble, Coke and Lord Buckhurst were working to make good their mistress’s pledge. Old licenses were voided, while new licenses were quietly issued. Lord Buckhurst required Coke to list the monopolies still outstanding; aided by Cecil, they pored over the list. The old statesman, still a poet manqué, remained alert to the possibilities of language: possibly such arrangements could be preserved, he suggested to Coke, if only some other term could be employed for them. Meantime the money still had to be found. Coke filed suits against the sureties of the queen’s debtors and haggled for her over the price of pardons. And on this quavering, dauntlessly sustained chord, the age of Elizabeth ran steadily toward its close.52

The New King’s Reign Early on the morning of March 24, 1603, Queen Elizabeth died. By April 5, James VI of Scotland had set out for England to claim the vacant throne. Lady Hatton traveled north, perhaps as far as Edinburgh, before she intercepted Anna of Denmark, James’s queen. The high-tempered beauty somehow pleased that withdrawn, strong-willed woman. For as long as Anna lived, another sixteen years, Lady Hatton and her husband would retain the queen’s affection and trust.53 Few friendships ever served Coke better. Meantime, Coke followed news of James’ south-bound progress.54 An unpleasant story came in from Newark: when a pickpocket was caught 52 See variously Salisbury MSS 10: 419 (2 March 1600); Salisbury MSS 11: 324–25 (7 Aug. 1601); Salisbury MSS 12: 77 (18 March 1602); Salisbury MSS 13: 519–20; Salisbury MSS 12: 9 (8 Jan. 1602); Salisbury MSS 12: 95, 113 (3 April 1602). 53 On Queen Anna (as she always wrote her own name), see Barbara Kiefer Lewalski, Writing Women in Jacobean England at 15–43 (Harvard UP 1993) and Maureen M. Meikle, “A Meddlesome Princess: Anna of Denmark and Scottish Court Politics 1589–1603,” in The Reign of James VI, ed. Julian Goodare & Michael Lynch (East Linton, Scotland: Tuckwell Press 2000), 126–40. 54 The gap between Elizabeth’s death and the coronation of James posed a troubling question which the judges convened to study. Discontinuance of Process &c by the Death of the Queen, 7 Co. Rep. 29b (1603). Different troubles arose at Norwich, where an imprisoned lawyer convinced other prisoners in the gaol that “it was interregnum, a lawless time, and that it was no offense to break prison.” Salisbury MSS 16: 38 (5 March 1604). It is also likely that Robert Cecil followed a path mapped by Burghley in 1584–85, for a Great Council which would, following the Queen’s death, govern in the name of England’s crown imperial. Popham had drafted a bill on this for Burghley and probably was prepared to follow through. Patrick Collinson, “The Monarchical Republic of Elizabeth I,” in The Tudor Monarchy, ed. John Guy (Arnold/St. Martin’s 1997), 110–34, 125–29.

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red-handed, James had the man hanged without trial. Other reports put the new king in a better light. He was thirty-six years old and vigorous. He seemed intelligent. He spoke with the accent of his native land. He led country gentlemen on hunts, he dauntlessly helped gunners fire off salutes, he cheerfully accepted gifts. Coke must have noticed, too, that James heartily made knights at every stop along his road—never less than a handful, it seemed, sometimes by the dozen or score. It was said that the new king meant to make a thousand knights, as King Arthur had done.55 As James later put it, the start of his reign had been a kind of Christmas. That sense of festivity shows in a letter Coke addressed to Robert Cecil, while James was still on the way south. I perceive the least public grace from the King does the poor Attorney some good, and I heard by some near about him that he had a disposition to confer upon me that [which] King Edward IV conferred upon Hubberd his attorney, Henry VIII upon Hales his attorney, and the Queen my dear mistress upon Gerrard her attorney. . . . I thank God I am not ambitious, but as all my good fortunes have come either by your honorable father or you, so I would account [the honor] the greater if it came by your honorable means.—P.S. When you have read this letter it is for the fire.56

The poor Attorney—I thank God that I am not ambitious: in this moment of elation, looking forward to a knighthood, Coke could even poke fun at himself. For once, his demeanor slipped. He was solemnly giddy, rattling off his predecessors’ names, raising himself into their honorable company.57 Then his unctuousness returned, and his caution, and he thought to cover his tracks. Of course Cecil did not burn the letter. He had not become the uncrowned king of England by making himself unable to remind his friends how much they owed to him. More practically, the king’s accession meant that Coke was finally rich. A new monarch meant coronation pardons, each pardon yielding a fee. John Aubrey had the story; decades later, it was still legend among lawyers. “Old John Tussell (that was my attorney) has told me that [Coke] got a hundred thousand pounds in one year, viz. 1 Jacobi, being 55 Lawrence Stone, “The Inflation of Honors 1558–1641,” Past & Present 14: 45–70, 49 (Nov. 1958). In fact, during his first 18 months on the throne, James did even better; he made 1,159 knights. In her forty-five year reign, Elizabeth and all of her generals and lord deputies together had only created 878 knights. 56 Salisbury MSS 15: 72 (4 May 1603). 57 As of April 22, 1603, Coke had been reappointed Attorney-General, and on May 23 he would be appointed to the King’s Privy Chamber. Vade Mecum at 118.

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then Attorney General. His advice was that every man of estate (right or wrong) should sue out his pardon, which cost five pounds which belonged to him.”58 On May 22, a Sunday, the king attended divine service. Afterward, Philip Gawdy wrote, “upon his coming back from the chapel he knighted Mr. Attorney gracing him with much favor.”59 If this scene was like the others in which James had figured, then the ceremony may well be imagined. James would have joked with his servant, hung on his shoulder as they walked, perhaps. He would have bade a bodyguard draw a rapier—watched carefully as steel left scabbard, stepped quickly forward to take the hilt with his own hand. I dub thee knight, James would have said, in the broad Scots burr that, at the time, his subjects found so attractive. Rise, Sir Edward Coke. 58

Aubrey, Brief Lives at 162. The substance of the individual fee is confirmed by W. R. Prest, “Counsellor’s Fees and Earnings in the Age of Sir Edward Coke,” in Legal Papers and the Historian: Papers Presented to the Cambridge Legal History Conference 1975, ed. J. H. Baker (London: Royal Historical Society 1978), 165–84, 168. That very many gentlemen in England obtained such pardons is witnessed by the fact that Fr. Henry Garnet, S.J. took out one out himself and pleaded this fact (unsuccessfully) in his treason trial. 59 Isaac H. Jeaves, Letters of Philip Gawdy of West Harling, Norfolk at 130 (London: Roxburghe Club 1906) (Philip Gawdy to his brother, 23–29 May 1603). Coke noted: “in privata camera, Rex Jacobus ex magno favore constituit me militem, inter horas 11 et 12.” Vade Mecum at 118.

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An afternoon may be surmised, a few days short of June, the glorious end of springtime in the new king’s reign. Coke is fifty-one now, growing near-sighted; even by candle-light, he finds it harder to work by evening. Taking advantage of the sunlight, he turns to his desk, to his commonplace book and a sheaf of letters. The Attorney-General has prepared a proclamation, “according to the wise and grave direction which his Majesty himself gave unto me.” That document will travel to Burghley House. Another letter bears troubling news, matters of “impossible difficulty and difficult impossibility, accompanied with danger and inconvenience”; Coke has reviewed it “with a man far wiser than himself ” and forwards it to Cecil. With these letters can travel others. Valentine Thomas, the Scottish conspirator, is to be hanged at last, “seeing the king’s honor and his life cannot consist.” Sir Walter Ralegh is to be removed from Durham House, his mansion overlooking the Thames. Coke has reviewed the chain of title, Egerton has reviewed it, Popham and his brother judge Periam have reviewed it— all agree that the house rightly belongs to the Bishop of Durham. Great wheels are coming round full circle. The Howard family, Coke’s old clients, are receiving new peerages; the clerks are at work writing out the patents.1 1

The matters described received Coke’s attention in late spring and early summer in the first year of the reign of James I. Salisbury MSS 15: 92 (16 May 1603); Salisbury MSS 15: 142 (20 June 1603); Salisbury MSS 15: 34–35, 119; Salisbury MSS 111 (29 May 1603); Salisbury MSS 15: 198 (17 July 1603).

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New commissions will be going out, to the Council of the North and the Court of High Commission. Coke sits on the Court of High Commission now, below John Whitgift and Richard Bancroft.2 It is thirty years since Whitgift forced Thomas Cartwright out of Cambridge. It is twenty years since the troubles at Bury St. Edmunds, where Bancroft made the case against the preachers and Coke defended William Fleming. Coke’s former tutor is elderly now, beginning to fail. Bancroft can expect to be named archbishop, just as Coke may expect to be made Chief Justice. Of the letters Coke chooses to dispatch to Cecil, two in particular draw his attention. The first accompanies an advance copy of the preface to the Fourth Part of Coke’s law reports. I have published three books of the law and to every book I have added several prefaces. The last preface written both in Latin and in English I have promised to send to you. I would the cases themselves could be as well understood as the prefaces.3

Cecil would read for himself what Coke had written, that England was a “monarchy successive by inherent birthright, of all others the most absolute and perfect form of government.” That the King’s Attorney doubted that codifying the law would bring “the common laws into a better method.” That King James, “a sovereign so religious, wise and learned, so great an observer of laws, so virtuous of his own person,” should be an example to his people. Coke had found much more to praise in his new master: the king’s plan to name new judges, his desire that cases be decided by the true sense of the laws—in particular, the king’s request that Coke publish more cases. The new volume of the Reports would publish nothing but his majesty’s own, being sweet and fruitful flowers of his crown: for the laws of England are so called, jura coronae, or jura regia: because as Bracton, lib.1, cap. 8 saith . . . the king is under no man, but only God and the law; for the law makes the king: therefore let the king attribute that to the law, which from the law he hath received, to wit, power and domination: for where will, and not law doth sway, there is no king.4 2 Salisbury MSS 15: 113 (30 May 1603); Salisbury MSS 15: 223–34 (dated “after July 1603,” but referring to Coke as “esquire,” which suggests an earlier date). 3 Salisbury MSS 16: 236 [undated, but written between 13 May 1603 and 20 Aug. 1604]. 4 Preface to the Fourth Part of the Reports (1604).

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Cecil, a subtle man, might note that this compliment followed a peculiar arc. The second letter concerns a problem. Among the honor and titles he was awarding, King James had granted away the clerkship of the outlawries in the Court of Common Pleas. The clerkship of the outlawries was part of the Attorney-General’s office, the clerk was the AttorneyGeneral’s servant, and the fees of the office (not inconsiderable) were part of the Attorney-General’s revenue.5 The Attorney-General had been alarmed—quiet and controlled, but shrill. He writes: This attempt for the clerkship of the outlawries concerns my freehold, for it is so inseparable to my place as none can have it but he that is Attorney General. If the king should grant the clerkship of the outlawries when there were no Attorney General, and after make an Attorney General, he should have the clerkship and avoid the grant; à fortiori the grant is void there being an Attorney General . . . . I have deputed Antrobus to be my substitute and he is allowed by the Court of Common Pleas. God forbid I should disturb him to his undoing. I know the Lord Keeper will affirm as much as I have said and join with your lordship in my defense herein. I heard his Majesty say that he had given commandment to my Lord Keeper and you to stay any grant either unlawful or dishonorable. Any step downward were fatal for me, and death to poor, honest Antrobus, and therefore I pray you take hold of his Majesty’s commandment and let it sleep perpetually, or let it stay until my Lord Chief Justice satisfy you herein for law.6

The letters were signed and folded and a courier took away the postbag. The King’s Attorney took up a fine-nibbed pen and his commonplace book. That Easter term, a case had been argued, Darcy v. Allen, a Groom of the Privy Chamber suing a member of the Haberdashers’ Company. The late queen had granted Darcy, by patent, a monopoly on playing cards. Darcy had sued Allen for selling cards which lacked his license. The case 5 Margaret Hastings, The Court of Common Pleas in Fifteenth Century England: A Study of Legal Administration and Procedure at 108, 150–51 (Ithaca, New York: Cornell UP 1947). See also Marjorie Blatcher, The Court of King’s Bench 1450–1550 at 87–89 (London: Athlone Press 1978). 6 Salisbury MSS 15: 368 [undated letter, endorsed 1603]. Thomas Antrobus would go on to sit in the Commons during James’ first parliament. He may have been the compiler of Brevia Selecta; or, Choice Writs, being a collection of divers special writs not taken notice of in writ books, many of them being extents directed to bishops, prohibitions, consultations, process upon appeal of murder, writs directed to counties palatine, with many other writs now in use (London 1663). Biographical information courtesy of of Dr. Andrew Thrush and the History of Parliament Trust.

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reflected on others’ rights. Darcy was only one of the courtiers who had been granted such privileges and Allen was secretly backed by the aldermen of the City of London.7 The issue of monopolies was one in which the new king was showing an interest. Coke, for the crown, and George Croke, for Allen, had argued the case on the safe middle ground. Coke had argued that the infringement of a patent gave the patentee an action to redress this trespass. Croke had conceded that the queen’s patent was valid; he had argued that its terms did not cover all playing-cards, and that only the queen (not Darcy) could take action if it were infringed. Both Coke and Croke had avoided the claims presented by Nicholas Fuller, co-counsel for Allen, who had bundled together his client’s radical assertions. Fuller denied that the patent was good. He claimed that the common law abhorred restraints on trade and that Magna Carta protected any subject’s right to earn a livelihood and that three statutes from the days of Edward III made void all royal grants which kept a freeman from pursuing a lawful trade. The judges had hesitated twice, “conferrent secretment,” then finally rendered the most inscrutable of rulings. Then on another day the plaintiff moved for judgment again. The justices spoke secretly again and at last Gawdy, Justice, said that judgment should be entered against the plaintiff. And they did not deliver any reason or cause for their judgment at this time.8

What the judges had considered in secret, Chief Justice Popham had disclosed and Coke now recorded. Coke wrote it down, amplifying points. The difference between the monarch’s two prerogatives. The distinction between malum prohibitum and malum in se. How mechanical trades which supported the diligent and kept down idleness were favored by Magna Carta. How the king could do no wrong and how the king should intend his people’s good and how the king should count himself deceived if he were prevailed upon to favor one gentleman at the expense of many subjects. The confidential judgment took on the form of a private memorandum. Afterwards, it could not be determined where the 7 Darcy v. Allen is reported at 11 Co. Rep. 84b, Moore 671, and Noy 173, as well as in manuscript reports, most importantly BL Add. MS 25203. The following discussion relies on Jacob I. Corré, “The Argument, Decision and Reports of Darcy v. Allen,” Emory Law Journal 45: 1261–1327 (1996), primarily, and David Harris Sacks, “The Countervailing of Benefits: Monopoly, Liberty, and Benevolence in Elizabethan England,” in Tudor Political Culture, ed. Dale Hoak (Cambridge UP 1995), 272–91. 8 BL Add. MS 25203, fo. 678v (translation by Corré).

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judges’ secret resolutions ended, and where Coke’s exposition of the case began. The Attorney-General filled one page and began another, now citing Plowden, now mentioning a parliament of Henry IV, now recalling a grant of wild swans on the Thames between London Bridge and Oxford. The afternoon continued fair, and Coke wrote on, steadily, legibly.

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Select Bibliography

Manuscript Sources Cambridge, England

London

Cambridge University Archives Cambridge University Library Pembroke College Library Trinity College Library

British Library (BL) Additional MSS Hargrave MSS Harley MSS Lansdowne MSS Sloan MSS Stowe MSS Public Record Office University College London

Cambridge, Massachusetts Harvard Law School Special Collections Chicago University of Chicago Regenstein Library

New York City Columbia Law School

Coventry

Norwich Norfolk Record Office (NRO)

City of Coventry Archives Holkham, Norfolk Calendar of Holkham Estate Records Coke Family Papers Coke Family Papers Supplement

San Marino, California Henry E. Huntington Library Egerton Papers Washington, D.C. Georgetown University Law Center Library

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Select Bibliography

Printed Sources Anonymous. Miscellanea. Catholic Record Society, vol. 3 (1906). Bacon, Francis [false attribution]. “Expostulation to Lord Coke.” Works of Sir Francis Bacon 3: 485–88, ed. Basil Montagu. Philadelphia: A. Hart, 1853. Bacon, Nathaniel. Annalls of Ipswche: The Lawes, Customes and Government of the Same (1654). Baker, John H. & Milsom, S. F. C. Sources of English Legal History: Private Law to 1750. London: Butterworths, 1986. Ball, W. W. Rouse & Venn, J. A. Admissions to Trinity College, Cambridge. London: Macmillan, 1913. Barton, Thomas F., ed. Registrum Vagum of Anthony Harison. Norfolk Record Society, vols. 32–33 (1962–63). Blomefield, Francis. Essay Towards a Topographical History of the County of Norfolk. London: W. Miller, 11 vols. 1805–10. Bradfer-Lawrence, H. L., ed. Musters Returns for Divers Hundreds in the County of Norfolk. Norfolk Record Society, vol. 6 (1936). Bradley, Francis. A Godly Sermon Preached Before the Right Worshipful Edward Cooke Esquier, Atturney General unto the Queen’s Most Excellent Majesty, and Others of Worship, in Tittleshall, in Norfolk. London: Felix Kingston, 1600. Brooks, C. W, ed. Admissions Registers of Barnard’s Inn 1620–1869. Selden Society, Supplementary Series vol. 12 (1995). Bruce, John. “Sir Edward Coke’s Vade Mecum.” Collectanea Topographica et Genealogica 6: 108–22. London: J. B. Nichols and Son, 1840. Bruce, John, ed. Liber Famelicus of Sir James Whitelocke. Camden Society (Old Series) vol. 70 (1858). Calendar of State Papers, Domestic Series, of the Reign of Elizabeth. London: Longman, Green, Longman & Roberts. ———Vol. 3, 1591–94, ed. Mary Anne Everett Green (1865) ———Vol. 4, 1595–97, ed. Mary Anne Everett Green (1867) ———Vol. 5, 1598–1600, ed. Mary Anne Everett Green (1869) ———Vol. 6, 1601–3, ed. Mary Anne Everett Green (1869) Campling, A., ed. East Anglian Pedigrees. Norfolk Record Society, vol. 13 (1940). Carlson, Leland H., ed. The Writings of John Greenwood and Henry Barrow 1591– 1593. Elizabethan Nonconformist Texts, vol. 6. London: Allen & Unwin, 1970. Carthew, G. A., ed. The Hundred of Launditch and Deanery of Brisley in the County of Norfolk: Evidences and Topographical Notes. Norwich: Miller & Leavins, 3 vols. 1877–79. Carthew, G. A. “Original Letters of Sir Edward Coke and Edward Lord Cromwell.” Norfolk Archaeology 4: 267–70 (1855). Cecil, William. The Execution of Justice in England, ed. Robert M. Kingdon. Folger Shakespeare Library. Ithaca, New York: Cornell University Press, 1965. Chambers, E. K. William Shakespeare: A Study of Facts and Problems 2: 325–26 Oxford: Clarendon Press, 1930.

Select Bibliography Cobbett, William. Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors. London: T. C. Hansard, 1809. Coke, Sir Edward. The Lord Coke His Speech and Charge, with a Discoverie of the Abuses and Corruption of Officers (STC 5492) Sig. F1 r–v (1607). Coke, Sir Edward. The Reports of Sir Edward Coke, Knight, in Thirteen Parts [1600–1615, 1658, 1659]. Ed. John Henry Thomas & John Farquhar Fraser, 1826; repr. Stevens & Sons, The English Reports, vols. 76–77 (1907). Coke, Sir Edward. The First Part of the Institutes of the Laws of England: or, A Commentary Upon Littleton, Not the Name of the Author Only, But of the Law Itself. London: 1628. Ed. Francis Hargrave & Charles Butler, 18th ed. 1823. New York/Birmingham, Alabama: Legal Classics Library / Gryphon Editions repr. ed. 1985. Coke, Sir Edward. The Second Part of the Institutes of the Laws of England, Containing the Exposition of Many Ancient and Other Statutes [ca. 1630, pub. 1642]. Ed. E. & R. Brooke, 1797. Buffalo, New York: William S. Hein Company, repr. ed. 1986. Coke, Sir Edward. The Third Part of the Institutes of the Laws of England, Concerning High Treason and Other Pleas of The Crown and Criminal Causes [ca. 1630, pub. 1644]. Ed. E. & R. Brooke, 1797. Buffalo, New York: William S. Hein Company, repr. ed. 1986. Coke, Sir Edward. The Fourth Part of the Institutes of the Laws of England, Concerning the Jurisdiction of Courts [ca. 1630, pub. 1644]. Ed. E. & R. Brooke, 1797. Buffalo, New York: William S. Hein Company, repr. ed. 1986. Copinger, W. A. The Manors of Suffolk: Notes on Their History and Devolution. London: T. F. Unwin, 7 vols. 1905–11. Corré, Jacob I. “The Argument, Decision, and Reports of Darcy v. Allen.” Emory Law Journal 45: 1261–1327 (1996). D’Ewes, Sir Simonds. Journals of all the Parliaments during the Reign of Queen Elizabeth. London, 1682. Elyot, Sir Thomas. The Book Named the Governor [1531]. New York: Columbia Teachers College ed. 1969. Gaskell, Phillip. “Books Bought by Whitgift’s Pupils in the 1570’s.” Transactions of the Cambridge Bibliographical Society 7: 284–393 (1977–80). Gerard, John. The Autobiography of a Hunted Priest. Translated by Philip Caraman. New York: Pellegrini & Cudahy, 1952. Grace, M., ed. Records of the Gild of St. George in Norwich 1389–1547. Norfolk Record Society, vol. 9 (1938). Hackenbroch, Yvonne. English and Other Silver in the Irvin Untermeyer Collection. New York: Metropolitan Museum of Art, rev. ed. 1969. Halliwell, J. O., ed. The Private Diary of Doctor John Dee. Camden Society (Old Series) vol. 19 (1842). Harrison, G. B. An Elizabethan Journal, Being A Record of the Things Most Talked About During the Years 1591–94. New York: Anchor Books ed., 2 vols. 1965. Hartley, T. E. Proceedings in the Parliaments of Elizabeth I, 1593–1601. Leicester University Press, 1995.

305

306

Select Bibliography Hassall, W. O., ed. Catalogue of the Library of Sir Edward Coke. Preface by Samuel Thorne. New Haven, Connecticut: Yale University Press, 1950. Hawarde, John. Les Reportes del Cases in Camera Stellata 1593–1609. W. P. Baildon ed. London: privately printed, 1894. Helmholz, R. H, ed. Select Cases in Defamation. Selden Society, vol. 101 (1985). Historical Manuscripts Commission. Calendar of the Manuscripts of the Most Honorable the Marquess of Salisbury . . . Preserved at Hatfield House, Hertfordshire. London, 24 vols. London: HMSO, 1883–1976. Historical Manuscripts Commission. Ninth Report—Appendix. Report on the Manuscripts of the Right Honorable the Earl of Leicester, Holkham Hall. London: HMSO, 1883. Historical Manuscripts Commission. Seventh Report. “Records of the Dissolved Corporation of Dunwich.” London: HMSO, 1914. Historical Manuscripts Commission. Report on the Manuscripts of Lord De L’Isle & Dudley at Penshurst Place. London: HMSO, 1925, 1934. Houlbrooke, R. A., ed. Letter Book of John Parkhurst, Bishop of Norwich 1571–75. Norfolk Record Society, vol. 43 (1974). Hughes, P. L. & Larkin, J. F. Tudor Royal Proclamations. New Haven, Connecticut: Yale University Press, 3 vols. 1969. Hutchinson, Lucy. Memoirs of the Life of Colonel Hutchinson. George Bell ed. 1899. Inderwick, F. A. Calendar of the Inner Temple Records. London: Henry Sotheran & Company, 2 vols. 1896. Jeaves, Isaac H. Letters of Philip Gawdy of West Harling, Norfolk. London: Roxburghe Club, 1906. Jonson, Ben. Complete Poems. Ed. George Parfitt. New Haven, Connecticut: Yale University Press, 1975. Kett, Louise M. The Ketts of Norfolk: A Yeoman Family. London: Mitchell Hughes and Clarke, 1921. Law Reports. References in case reports attributed to Edmund Anderson, George Croke, William Leonard, Francis Moore, Edmund Plowden, John Popham, Godbolt, Owen and other early reporters are cited by the name of the reporter, consistent with standard legal citation, from volumes reprinted in the English Reports series, ca. 1907. Knafla, Louis A. Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere. Cambridge: Cambridge Studies in Legal History, 1976. MacCulloch, Diarmaid. The Chorography of Suffolk. Suffolk Record Society, vol. 19 (1976). McClure, Norman E. Letters of John Chamberlain. Philadelphia: American Philosophical Society, 2 vols. 1939. Millican, Percy. The Gawdys of Norfolk and Suffolk. Norwich: Goose & Son Ltd., 1939. Morgan, Victor, ed. Papers of Nathaniel Bacon of Stiffkey 1596–1602. Norfolk Record Society, vol. 64 (2000). Muskett, J. J. Suffolk Manorial Families. Exeter, England: W. Pollard & Company, 3 vols. 1905–14.

Select Bibliography Nadeau, Ray. “The Progymnasmata of Apthonius in Translation.” Speech Monographs 19: 264–85 (1952). Nashe, Thomas. “The Unfortunate Traveler” [1594]. In The Unfortunate Traveler and Other Works. Harmondsworth: Penguin ed. 1972. Notestein, W., Relf, F. & Simpson, H., eds. Commons Debates 1621. New Haven, Connecticut: Yale Historical Publications, 1935. Parmitter, Geoffrey de C. Edmund Plowden: An Elizabethan Recusant Lawyer. Catholic Record Society, Monograph Series vol. 4 (1987). Peel, Albert, ed. “The Notebook of John Penry.” Royal Historical Society (3rd Series) vol. 67 (1944). Peel, Albert, ed. The Seconde Parte of a Register. Cambridge: Cambridge University Press, 2 vols. 1915. Peel, Albert, ed. Tracts Ascribed to Richard Bancroft. Cambridge: Cambridge University Press, 1953. Peel, Albert & Carlson, Leland, eds. Cartwrightiana. London: Allen & Unwin for the Sir Halley Stewart Trust, 1951. Prynne, William, Brief Animadversions On, Amendments Of, & Additional Explanatory Records To, the Fourth Part of the Institutes of the Lawes of England, Concerning the Jurisdiction of Courts: Compiled by the Late Famous Lawyer, Sir Edward Cooke, Knight. London: Thomas Ratcliffe and Thomas Daniel, 1669. Prynne, William. Fourth Part of a Brief Register, Kalender and Survey of the Various Kinds / Forms of Parliamentary Writs (1664). Ralegh, Sir Walter. Letters of Sir Walter Ralegh, ed. Agnes Latham & Joyce Youings. Exeter, England: University of Exeter Press, 1999. Renold, Penelope, ed. The Wisbech Stirs 1595–98. Catholic Record Society, vol. 51 (1958). St.-German, Christopher. Doctor and Student [1530]. Ed. T. F. T. Plucknett & J. L. Barton, Selden Society, vol. 71 (1974). Scott, Harold Spencer, ed. The Journal of Sir Roger Wilbraham. Camden Miscellany No. 10 (1902). Sheppard, Stephen. Selected Writings of Sir Edward Coke. Indianapolis: Liberty Fund Inc., 2 vols. 2003. Smith, A. H., Baker, G. M. & Kenny, R. W., eds. Papers of Nathaniel Bacon of Stiffkey 1556–77. Norfolk Record Society, vol. 46 (1978–79). Smith, A. H., & Baker, G. M., eds. Papers of Nathaniel Bacon of Stiffkey 1578–85. Norfolk Record Society, vol. 49 (1983). Smith, A. H. & Baker, G. M, eds. Papers of Nathaniel Bacon of Stiffkey 1589–95. Norfolk Record Society, vol. 53 (1990). Smyth, John. Lives of the Berkeleys, Lords of the Honor, Castle and Manor of Berkeley in the County of Gloucester from 1066 to 1618. Gloucester, England: 3 vols. 1883–85. Sorlien, Robert Parker. Diary of John Manningham of the Middle Temple 1602– 1603. Hanover, New Hampshire: University Press of New England for University of Rhode Island, 1976. Spedding, James. The Letters and the Life of Francis Bacon. London: Longman, Green, Longman & Roberts, 7 vols. 1861–74.

307

308

Select Bibliography Spedding, James, Ellis, Robert, & Heath, Douglas, eds. The Works of Francis Bacon. London: Longman, Green, Longman & Roberts, 7 vols. 1857–70. Thorne, Samuel E. A Discourse Upon the Statutes. San Marino, California: Huntington Library, 1942. Williams, J. F., ed. Bishop Redman’s Visitation 1597. Norfolk Record Society, vol. 18 (1946).

Secondary Sources Abbott, L. W., Law Reporting in England, 1485–1585. London: Athlone Press, 1973. Aylmer, G. E. The King’s Servants: The Civil Service of Charles I. New York: Columbia University Press, 1961. Babbage, Stuart B. Puritanism and Richard Bancroft. London: Church Historical Society, 1962. Baker, John H. Introduction to English Legal History. London: Butterworths, 3d ed. 1990. Baker, John H. “Introduction.” The Reports of Sir John Spelman, Part II. Selden Society, vol. 94 (1977). Baker, John H. The Common Law Tradition: Lawyers, Books, and the Law. London: Hambledon Press, 2000. Baker, John H. The Law’s Two Bodies: Some Evidential Problems in English Legal History. Oxford: Clarendon Press, 2001. Baker, John H. The Legal Profession and the Common Law: Historical Essays. London: Hambledon Press, 1986. Barnes, Thomas. “Introduction.” Coke’s Commentary Upon Littleton, Part II. New York/ Birmingham, Alabama: Legal Classics Library/ Gryphon Editions, 1985. Barton, J. F. “Future Interests and Royal Revenues in the Sixteenth Century.” In On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris S. Arnold, Thomas A. Green, Sally A. Scully & Stephen D. White, 321–25. Chapel Hill: University of North Carolina Press, 1981. Behrens, Georg. “Equity in the Commentaries of Edmund Plowden.” Legal History 20: 25–50 (1999). Bellamy, John. The Tudor Law of Treason. London: Routledge & Kegan Paul, 1979. Berry, Lloyd E. “Introduction” to John Stubbs’ “Gaping Gulf.” Washington, DC: Folger Shakespeare Library, 1963. Bindoff, S. T. The House of Commons 1509–1558. London: Secker & Warburg for the History of Parliament Trust, 1982. Birch, T. Memoirs of the Reign of Queen Elizabeth (2 vols. 1754). Bland, D. S. “Rhetoric and the Law Student in Sixteenth Century England.” Studies in Philology 54: 498–508 (1957). Blatcher, Marjorie. The Court of King’s Bench 1450–1550: A Study in Self-Help. London: Athlone Press, 1978.

Select Bibliography Bowen, Catherine Drinker. The Lion and the Throne: The Life and Times of Sir Edward Coke. Boston: Little, Brown & Co., 1957. Boyer, Allen D. “Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law Tradition.” International Journal for the Semiotics of Law 10: 3– 36 (1997). Boyer, Allen Dillard. “Understanding, Authority, and Will: Sir Edward Coke and the Elizabethan Origins of Judicial Review.” Boston College Law Review 39: 43–93 (1997). Brinkley, Roberta F. Nathan Field, The Actor-Playwright. New Haven, Connecticut: Yale Studies in English, vol. 77, 1928. Browne, John. History of Congregationalism and Memorials of the Churches in Norfolk and Suffolk. London: Jarrold & Sons, 1877. Burgess, Glenn. The Politics of the Ancient Constitution: An Introduction to English Political Thought 1600–1642. State College, Pennsylvania: Pennsylvania State University Press, 1992. Cam, Helen. Liberties and Communities in Medieval England. Cambridge University Press, 1944: London: Merlin Press repr. ed. 1963. Catto, J. “Andrew Horne: Law and History in Fourteenth Century England.” In The Writing of History in the Middle Ages: Essays Presented to Richard William Southern, ed. R. H. C. Davis & J. M. Wallace-Hadrill, 370–84. Oxford: Clarendon Press, 1981. Caraman, Philip. Henry Garnet and the Gunpowder Plot. London: Longmans, 1964. Cockburn, J. S. A History of English Assizes 1558–1714. Cambridge: Cambridge University Press, 1972. Collinson, Patrick. The Elizabethan Puritan Movement. Berkeley: University of California Press, 1967. Collinson, Patrick. “Magistracy and Ministry.” In The Religion of Protestants, 141– 68. Oxford: Clarendon Press, 1982. Collinson, Patrick. “Magistracy and Ministry: A Suffolk Miniature.” In Godly People: Essays on English Protestantism and Puritanism, 445–66. London: Hambledon Press, 1983. Coquillette, Daniel R. Francis Bacon. Stanford, California: Stanford University Press, 1992. Cromartie, Alan. “The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England.” Past & Present 163: 76–120 (1999). Dale, W. L. Law of the Parish Church. London: Butterworths, 2d ed. 1946. Davids, T. W. Annals of Nonconformity in Essex. London: Jackson, Walford & Hodder, 1863. Dawley, Powel Mills. John Whitgift and the English Reformation. New York: Scribner, 1954. Dimock, Arthur. “The Conspiracy of Doctor Lopez.” English Historical Review 9: 440–72 (1894). Dowling, Margaret. “Sir John Hayward’s Troubles Over His Life of Henry IV.” The Library (4th Ser.) 11: 212–24 (1930).

309

310

Select Bibliography Duffy, Eamon. The Stripping of the Altars. New Haven, Connecticut: Yale University Press, 1992. Edwards, J. Ll. The Law Officers of the Crown. London: Sweet & Maxwell, 1964. Evans, E. “Of the Antiquity of Parliaments in England: Some Elizabethan and Stuart Opinions.” History (New Series) 23: 206–21 (1938). Freeman, Arthur. Elizabeth’s Misfits: Brief Lives of English Eccentrics, Exploiters, Rogues and Failures. New York: Garland Publishing, 1978. Fuller, Thomas. The Worthies of England. London, 1662; J. Freeman ed. 1952. Fussner, F. Smith. The Historical Revolution: English Historical Thought and Writing 1580–1640. New York: Columbia University Press, 1962. Gest, John Marshall. “The Writings of Sir Edward Coke.” Yale Law Journal 18: 504–32 (1909). Gray, Charles M. Copyhold, Equity, and the Common Law. Harvard Historical Monographs, vol. 53. Cambridge, Massachusetts: Harvard University Press, 1963. Gray, Charles M. “Reason, Authority, and Imagination: The Jurisprudence of Sir Edward Coke.” In Culture And Politics From Puritanism to The Enlightenment, ed. Perez Zagorin, 25–66. Berkeley: University of California Press, 1980. Gray, Charles M. The Writ of Prohibition: Jurisdiction in Early Modern English Law. New York: Oceana Publications, 2 vols. 1994. Greaves, Richard L. “Foundation Builders: The Role of Women in Early English Nonconformity.” In Triumph Over Silence: Women in Protestant History, ed. Richard L. Greaves, 75–92. Westport, Connecticut: Greenwood Press, 1985. Greenberg, Janelle. The Radical Face of the Ancient Constitution: The “Laws” of St. Edward in Early Modern England. Cambridge: Cambridge University Press, 2001. Griffin, Felicity. St. Mary’s Church, Huntingfield. Privately published, 1992. Guy, John. “The Elizabethan Establishment and the Ecclesiastical Polity.” In The Reign of Elizabeth I: Court and Culture in the Last Decade, ed. John Guy, 126– 49. Washington, DC: Folger Institute / Cambridge University Press, 1995. Hammer, Paul. The Polarisation of Elizabethan Politics: The Political Career of Robert Devereux, Second Earl of Essex 1585–1597. Cambridge: Cambridge University Press, 1999. Handover, P. M. The Second Cecil: The Rise to Power of Sir Robert Cecil, Later First Earl of Salisbury. London: Eyre & Spottiswoode, 1959. Hardin, R. F. “Geoffrey Among the Lawyers: Britannia by John Rous.” Sixteenth Century Journal 23: 235–49 (1992). Harris, P. R. “William Fleetwood, Recorder of the City.” Recusant History 7: 106–22 (1963). Hasler, P. W. Biographical Directory of the House of Commons 1558–1603. London: HMSO for History of Parliament Trust, 1981. Helgerson, Richard. Forms of Nationhood: The Elizabethan Writing of England. Chicago: University of Chicago Press, 1992. Helmholz, R. H. Roman Canon Law in the Church of England. Cambridge: Cambridge University Press, 1990.

Select Bibliography Hill, Christopher. Economic Problems of the Church from Archbishop Whitgift to the Long Parliament. Oxford: Clarendon Press, 1956. Hill, Christopher. “Sir Edward Coke—Myth-Maker.” In Intellectual Origins of The English Revolution Revisited. Oxford: Clarendon Press, 1997. Hill, Christopher. Society and Puritanism in Pre-Revolutionary England. New York: Schocken Books, 1967. Holdsworth, William. “Sir Edward Coke.” In Some Makers of English Law. Cambridge: Cambridge University Press, 1938. Holmes, Clive. The Eastern Association in the English Civil War. Cambridge: Cambridge University Press, 1974. Hume, Martin. “The So-Called Conspiracy of Dr. Ruy Lopez.” Transactions of the Jewish Historical Society of England 6: 32–55 (1908). Hurstfield, Joel. Freedom, Corruption and Government in Elizabethan England. Cambridge, Massachusetts: Harvard University Press, 1973. Hurstfield, Joel. The Queen’s Wards: Wardship and Marriage Under Elizabeth I. London: Longmans, Green & Company, 1958. Hutson, Lorna. “Not the King’s Two Bodies: Reading the ‘Body Politic’ in Shakespeare’s Henry IV, Parts 1 and 2.” In Rhetoric and the Law in Early Modern Europe, ed. Victoria Kahn & Lorna Hutson, 166–98. New Haven, Connecticut: Yale University Press, 2001. Ibbetson, David. “Sixteenth Century Contract Law: Slade’s Case in Context.” Oxford Journal of Legal Studies 4: 295–317 (1984). Ives, E. W. The Common Lawyers of Pre-Reformation England. Cambridge: Cambridge University Press, 1983. James, Charles Warburton. Chief Justice Coke, His Family & Descendants at Holkham. London: Country Life Ltd.; New York: Charles Scribner’s Sons, 1929. Jardine, Lisa & Stewart, Alan. Hostage to Fortune: The Troubled Life of Francis Bacon. New York: Farrar Straus & Giroux, 1999. Jessopp, Augustus. One Generation of a Norfolk House. New York: G. P. Putnam, 3d ed. 1914. Jones, William J. The Elizabethan Court of Chancery. Oxford: Clarendon Press, 1967. Jones, William J. “The Crown and the Courts in England, 1603–1625.” In The Reign of James VI and I, ed. Alan G. R. Smith, 177–94. London: St. Martin’s Press, 1973. Jordan, W. L. The Charities of Rural England: The Aspirations and the Achievements of the Rural Society. London: G. Allen & Unwin, 1961. Katz, David S. The Jews in the History of England 1485–1850. Oxford: Clarendon Press 1994. Kendrick, T. D. British Antiquity. London: Methuen, 1950. Ketton-Cremer, N. W. Norfolk and the Civil War. London: Faber, 1969. Knappen, M. M. Tudor Puritanism: A Chapter in the History of Idealism. Chicago: University of Chicago Press, 1939. Kopperman, Paul E. Sir Robert Heath 1575–1649: Window on an Age. London: Royal Historical Society, Studies in History No. 56, 1989. LeStrange, Richard. Monasteries of Norfolk. King’s Lynn: Yates Publications, 1973.

311

312

Select Bibliography Lacey, Robert. Robert, Earl of Essex. New York: Atheneum, 1971. Levy, F. J. Tudor Historical Thought. San Marino, California: Huntington Library 1967. Lewis, C. S. English Literature in the Sixteenth Century Excluding Drama. Oxford: Oxford University Press, 1954. Lewis, John Underwood. “Sir Edward Coke: His Theory of ‘Artificial Reason’ as a Context for Modern Basic Legal Theory.” Law Quarterly Review 84: 330–42 (1968). Lucke, H. K. “Slade’s Case and the Origin of the Common Courts.” Law Quarterly Review 81: 422–45, 539–61 (1965); Law Quarterly Review 82: 81–96 (1966). Maguire, M. H. “The Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England.” In Essays in History and Political Theory in Honor of C. H. McIlwain, ed. Carl Wittke, 199–239. Cambridge, Massachusetts: Harvard University Press, 1936. McClendon, Muriel. The Quiet Reformation: Magistrates and the Emergence of Protestantism in Tudor Norwich. Stanford: Stanford University Press, 1999. MacCulloch, Diarmaid. “Bondmen Under the Tudors.” In Law and Government Under the Tudors: Essays Presented to Sir Geoffrey Elton, ed. Claire Cross, David Loades & J. J. Scarisbrick, 91–109. Cambridge: Cambridge University Press, 1988. MacCulloch, Diarmaid. “Catholic and Puritan in Elizabethan Suffolk: A County Community Polarizes.” Archiv für Reformationsgeschichte 72: 232–89 (1981). MacCulloch, Diarmaid. Suffolk and the Tudors: Politics and Religion in an English County. Oxford: Clarendon Press, 1986. Maitland, Frederic. “Introduction.” The Mirror of Justices, ed. W. J. Whittaker. Selden Society, vol. 7, 1895. Malament, Barbara. “The ‘Economic Liberalism’ of Sir Edward Coke.” Yale Law Journal 76: 1321–58 (1967). Moreton, C. E. The Townshends and Their World: Gentry, Law and Land in Norfolk 1450–1551. Oxford: Clarendon Press, 1992. Myers, James P. “Murdering Heart . . . Murdering Hand”: Captain Thomas Lee of Ireland, Elizabethan Assassin.” Sixteenth Century Journal 22: 47–60 (1991). Neale, Sir John E. Elizabeth I and her Parliaments, 1559–1581. New York: St. Martin’s Press, 1958 Neale, Sir John E. Elizabeth I and Her Parliaments, 1584–1601. New York: St. Martin’s Press, 1958. Neale, Sir John E. The Elizabethan House of Commons. Penguin rev. ed., 1963. Nicholls, Mark. Investigating Gunpowder Plot. Manchester: Manchester University Press, 1991. Nichols, John. Progresses and Public Processions of Queen Elizabeth. London, 3 vols. 1823. Parkin-Speer, Diane. “Freedom of Speech in Sixteenth Century English Rhetorics.” Sixteenth Century Journal 12: 65–72 (1981). Pearson, A. F. S. Thomas Cartwright and Elizabethan Puritanism. Cambridge: Cambridge University Press, 1925.

Select Bibliography Peel, Albert. “Congregationalist Martyrs at Bury St. Edmunds.” Transactions of the Congregational Historical Society 15: 64–67 (1945–49). Pigott, Stuart. “Antiquarian Thought in the 16th and 17th Centuries.” In English Historical Scholarship in the 16th and 17th Centuries, ed. Levi Fox, 93–114. Dugdale Society, 1956. Plucknett, T. F. T. “Bonham’s Case and Judicial Review.” Harvard Law Review 40: 30–70 (1926–27). Pocock, J. G. A. The Ancient Constitution and the Feudal Law. Cambridge: Cambridge University Press, rev. ed. 1987. Porter, H. C. Reformation and Reaction in Tudor Cambridge. Cambridge: Cambridge University Press, 1958. Pound, John F. Tudor and Stuart Norwich. Chichester: Phillimore Press, 1988. Powell, William S. John Pory 1572–1636: The Life and Letters of a Man of Many Parts. Chapel Hill: University of North Carolina Press, 1977. Prest, Wilfrid R. The Inns of Court under Elizabeth I and the Early Stuarts, 1590– 1640. London: Longman, 1972. Prest, Wilfrid R. The Rise of the Barristers: A Social History of the English Bar, 1590–1640. Oxford: Clarendon Press, 1991. Read, Conyers. Lord Burghley and Queen Elizabeth. New York: Knopf, 1960. Rogers, Richard. “Epistle Dedicatory.” A Commentary Upon the Whole Book of Judges (1615). Rose, Jonathan. “The Ambidextrous Lawyer: Conflict of Interest and the Medieval and Early Modern Legal Professional.” University of Chicago Law School Roundtable 7: 136 (2000). Rowse, A. L. The England of Elizabeth: The Structure of Society. New York: Macmillan, 1950. Rowse, Alfred Leslie. Ralegh and the Throckmortons. New York: St. Martin’s Press, 1962. Rowse, Alfred Leslie. “The Tragic Career of Henry Cuffe.” In Court and Country: Studies in Tudor Social History, 211–41. Athens: University of Georgia Press, 1987. Ruigh, Robert E. The Parliament of 1624: Politics and Foreign Policy. Cambridge, Massachusetts: Harvard Historical Studies No. 87, 1971. Russell, Conrad. The Crisis of Parliaments: English History 1509–1660. Oxford University Press, 1971. Russell, Conrad. “Divine Rights in the Early Seventeenth Century.” In Public Duty and Private Conscience in Seventeenth Century England: Essays Presented to G. E. Aylmer, ed. John Morrill, Paul Slack, and Daniel Woolf. Oxford: Clarendon Press, 1993. Russell, Conrad. “Parliament, The Royal Supremacy, and the Church.” Parliamentary History 19: 27–37 (2000). Sacks, David Harris. “The Countervailing of Benefits: Monopoly, Liberty, and Benevolence in Elizabethan England.” In Tudor Political Culture, ed. Dale Hoak, 272–91. Cambridge: Cambridge University Press, 1995. Sacks, David Harris. “The Promise and the Contract in Early Modern England:

313

314

Select Bibliography Slade’s Case in Perspective.” In Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn & Lorna Hutson, 28–53. New Haven, Connecticut: Yale University Press, 2001. Sandeen, E. R. “Correspondence of Lord Keeper Nicholas Bacon.” Unpublished M.A. thesis, University of Chicago, 1955. Saunders, H. W. History of the Norwich Grammar School. Norwich: Jarrold & Sons, 1932. Sayles, G. O. “Introduction.” Select Cases in the Court of King’s Bench Under Edward III. Selden Society, vol. 76, 1957. Schoeck, R. J. “The Elizabethan Society of Antiquaries and Men of Law.” Notes & Queries 199: 417–20 (1954). Schoeck, Richard J. “Lawyers and Rhetoric in Sixteenth-Century England.” In Renaissance Eloquence: Studies in the Theory and Practice of Medieval Rhetoric, ed. J. J. Murphy, 274–91. Berkeley: University of California Press, 1983. Schwarz, Marc L. “Sir Edward Coke and ‘This Scept’red Isle’”: A Case of Borrowing?” Notes and Queries 233: 54 (1988). Seipp, David J. “The Mirror of Justices.” In Learning the Law: Teaching and the Transmission of Law in England 1150–1900, ed. Jonathan Bush & Alain Wijffels, 85–112. London: Hambledon Press, 1999. Simpson, A. W. B. History of the Common Law of Contract: The Rise of the Action of Assumpsit. Oxford: Clarendon Press, 1975. Simpson, A. W. B. “The Place of Slade’s Case in the History of Contract.” Law Quarterly Review 74: 381–96 (1958). Simpson, A. W. B. “Politics and Law in Elizabethan England—Shelley’s Case (1581).” In Leading Cases in the Common Law. Oxford: Clarendon Press, 1995. Smith, Alan G. R. Servant of the Cecils: The Life of Sir Michael Hickes 1543–1612. London: Jonathan Cape, 1977. Smith, A. Hassell. County and Court: Government and Politics in Norfolk 1558–1603. Oxford: Clarendon Press 1974. Snow, Vernon F. Parliament in Elizabethan England: John Hooker’s “Order and Usage.” New Haven: Yale University Press, 1977. Spring, Eileen. Law, Land and Family: Aristocratic Inheritance in England 1300– 1800. Chapel Hill: University of North Carolina Press, 1993. Sprott, S. E. “Sir Edmund Baynham.” Recusant History 10: 96–110 (1969–70) Starkey, David. “Stewart Serendipity: A Missing Text of the Modus Tenendi Parliamentum.” Fenway Court 38–51 (1986). Stone, Lawrence. An Elizabethan: Sir Horatio Palavicino. Clarendon Press, 1956. Styles, Philip. “Politics and Historical Research in the Early Seventeenth Century.” In English Historical Scholarship in the 16th and 17th Centuries, ed. Levi Fox, 49–72. Dugdale Society, 1956. Swanson, Richard Arthur. “The Office of Attorney-General in England 1558– 1641.” Unpublished dissertation, Department of History, University of Virginia, 1976. Thompson, Faith. Magna Carta: Its Role in the Making of the English Constitution 1300–1629. Minneapolis: University of Minnesota Press, 1948.

Select Bibliography Thorne, Samuel E. “Sir Edward Coke, 1552–1952.” Selden Society Lecture, 1952. London: Bernard Quaritch, 1957. Thorne, S. E. “The Equity of a Statute and Heydon’s Case.” Illinois Law Review 31: 202–19 (1936). Thorne, Samuel E. Essays in Legal History. London: Hambledon Press, 1985. Usher, Roland G. “James I and Sir Edward Coke.” English Historical Review 18: 664–75 (1903). Usher, Roland G. The Rise and Fall of the High Commission. Oxford: Clarendon Press, 1913. Van Norden, Linda. “The Elizabethan College of Antiquaries.” Unpublished doctoral dissertation, Department of English, University of California at Los Angeles, 1946. Venn, John & Venn, John Archibald. Alumni Cantabrigiensis: A Biographical List of All Known Students, Graduates, and Holders of Office at the University of Cambridge, from the Earliest Times to 1900. Cambridge: Cambridge University Press, 1922. Vickers, Brian. In Defence of Rhetoric. Oxford: Clarendon Press, 1988. Walter, John. “‘A Rising of the People?’ The Oxfordshire Rising of 1596.” Past & Present 107: 90–143 (May 1985). Wernham, R. B. “The Public Records in the Sixteenth and Seventeenth Centuries.” In English Historical Scholarship in the Sixteenth and Seventeenth Centuries, ed. Levi Fox, 11–30. Dugdale Society, 1956. White, F. O. Lives of the Elizabethan Bishops of the Anglican Church. London: Skeffington & Sons, 1898. White, Stephen D. Sir Edward Coke and “The Grievances of the Commonwealth” 1621–1628. Chapel Hill: University of North Carolina Press, 1979. Williams, Neville. Thomas Howard, Fourth Duke of Norfolk. New York: Dutton, 1964. Willson, David Harris. King James VI and I. London: Jonathan Cape, 1956. Zaller, Robert. The Parliament of 1621. Berkeley: University of California Press, 1971.

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Index

At the end of the Commentary Upon Littleton, Coke wrote that he had once intended to provide an index, “but when I considered that tables and abridgements are most profitable to them that make them, I have left that work to every studious reader.” But nevertheless: Agarde, Arthur, 146–47 Alby, William, 79 Aldeburgh, Suffolk, 39, 74–75 “ancient constitution,” 135–55 Anderson, Sir Edmund, Chief Justice, 63–66, 116–17, 127, 228, 231 Andrada, Manuel de, 245 Anglo-Saxons, 135 Anna of Denmark, queen, wife of James VI and I, befriends Coke, 294 Annias, John, 250–51 Antrobus, Thomas, 299 apprentices of London, 254–55 “artificial reason,” professional consensus of judges, 84–90, 106–7; art and craft of judging, 94–96; moral right and natural justice, 92–93; opposed to tyranny, 284–85. See also common law; “common learning”; rhetoric and common law assizes, 40–42 assumpsit, 125–26 Attorney-General, responsibilities of office, 253–54, 261–63

Bacon, Anthony, 17, 273, 285 Bacon, Sir Francis, Lord Chancellor Verulam, 8, 17, 34, 50, 186, 215, 238; and earl of Essex, 273, 276–77, 284–85, 290–91; seeks appointment as Attorney-General, 243–52; seeks appointment as Solicitor-General, 254 Bacon, Nathaniel, 44, 56, 67–70, 74, 81, 182, 187, 227, 261 Bacon, Sir Nicholas, Lord Keeper, 9, 24– 25, 52 Bacon, Sir Nicholas II, friend of EC, 24– 25, 44, 68, 274 Baconsthorpe, Norfolk, 69 Badby, Thomas, 61, 65 Baga de Secretis, 259 Bagshaw, secular priest, 265 Bancroft, Richard, Archbishop of Canterbury, 63–66, 167–68, 281, 298; ecclesiastical detective at Bury St. Edmunds, 63–66; chaplain to Sir Christopher Hatton, 63, 167–68; internal security mandarin, 172; breaks Essex’s attempted coup d’etat, 281

318

Index Barker, Robert, serjeant-at-law, brotherin-law to EC, 292 Barker family, in-laws to EC, 6 Barrow, Henry, martyr, 219–20, 228–30 Baxter, Thomas, 70 Baynham, Sir Edmund, 288–89 Baynham family, 289–90 Beale, Robert, 222, 241 Bedford, Earl of, 288 Bedingfield, Anne, née Moulton, motherin-law to EC, 181, 207–9; Anne Bedingfield’s Case, 208–9 Bedingfield, Edmund, 207 Belaugh, Norfolk (rectory), 3, 193 Bendlowe, Serjeant William, 35 Berkeley, Theophila, 199 Berkeley family, in-laws of EC’s son, 263 Bingley, schoolmaster, 184 Bishop’s Cleeve, Gloucestershire, 185 “Bloody Question,” 267 Blount, Sir Christopher, 285 Bohun family, in-laws to EC, 6 Bonham’s Case, 16, 84 Bozoun, Adam, 78 Bozoun, John, half-brother to EC, 10 Bozoun, Robert, stepfather to EC, 9–11, 38, 56, 78, 182 Bracton (Henry de Bratton), 35, 154–55, 298 Bradley, Francis, 185, 272–73 Bradshaw, Richard, 256 Braintree, Essex, 166 Brown, Nicholas, 10 Browne, Robert, 64 Browne family, 196 Bury St. Edmunds, 42, 60–66 Buxton, Norfolk, 173 Camden, William, 147, 290 Campion, Edmund, S.J., martyr, 63, 267, 271 Cardozo, Benjamin, 154 Carey, Henry, Lord Hunsdon, 177–78 Carlisle, longest known journey of Coke’s life, 38 Cartwright, Thomas, Puritan leader: Cambridge don, 21–22; connection to EC, 21; favored by Earl of Leicester, 48; divine and organizer, 172–74, 177, 217, 298; epistolary disputation with

Anne Stubbes, 173–74; gives book to EC, 182 Castle Acre, Norfolk, 136, 252 Cawdrey, Robert, 169–70; Cawdrey’s Case, 169–71 Cecil, Sir Robert, later Earl of Salisbury, 180, 213, 223, 240–41, 247, 291–95, 298– 99; aids EC in obtaining Solicitor- and Attorney-General positions, 216–17, 246–49, 251; and Francis Bacon, 251; and Lopez case, 246–49; works with EC, 223–24, 259–60, 263–64, 291–95, 298–99 Cecil, Thomas, Earl of Exeter, father-inlaw of EC, 252 Cecil, William, Lord Burghley, 25, 213, 217, 219, 229, 240, 242, 249, 251–52, 263 Chapel Royal, 262 chapmen, 130–32 Charles I, king, 27, 46, 199 Chaucer, Geoffrey, 34, 155 Chudleigh’s Case, 120–24 Cicero, Marcus Tullius, 14, 16, 17, 35, 224 Clement, George, 78–79, 182 Clench, John, 66 Clere, Sir Edward, 75, 78; Sir Miles Corbet’s Case, 75; Windham and Sir Edward Clere’s Case, 75 Clifford’s Inn, 26–28 Clifford, George, 17 Clifton, Henry, 262 Cockfield, Suffolk, 166 Coke, Anne, daughter to EC, 43, 209; marries Ralph Sadleir, 292–93 Coke, Arthur, son to EC, 209–10 Coke, Bridget, née Paston, “first and best wife” to EC, 65, 210–14; consults John Dee, 211; helpmate to husband, 211; household diary, 208, 210; as landowner, 210–11; marries EC, 207 Coke, Bridget, daughter to EC, 43, 210 Coke, Clement, son to EC, 199, 209–10 Coke, Sir Edward (1552–1634), Member of Parliament, Speaker of the Commons, Solicitor-General, AttorneyGeneral, Chief Justice of Common Pleas, Chief Justice of King’s Bench, author of the Reports and the Institutes — general: ancestry and family, 1–9; birth, 4; educated Norwich grammar

Index school, Trinity College, Cambridge, Clifford’s Inn and Inner Temple, 12– 24, 27–36; final illness, 27; heraldry, 5; knighted, 295–96; marriages, 207, 213; issue, 207–10, 213 — career: admitted to bar, 47; alliance with Puritan and “country” factions, 65–66, 68–82, 182; dedications by Puritan authors, 185–86, 272–73; electoral patronage, 275, 292; justice of peace for Norfolk, 74; knighted, 295–96; and Doctor Rodrigo Lopez, 244–52; Member of Parliament from Aldeburgh, 39, 74–75; and monopolies, 294, 299–301; and Norfolk, 81–82; on Norfolk assize circuit, 40–42; notebooks, 27, 32–35, 51–53, 212, 299–301; opposes church courts, ex officio oath, and Court of High Commission, 177– 83; opposes concealment claims, 274; opposes purveyance, 275; political cases, 75–78; practice as lawyer, 42–51; prosecutes Earl of Essex, 283–88; readings on Statute of 27 Edw. I, De Finibus Levatis, and Statute of Uses, 217; recorder of Coventry, 215; recorder of Norwich, 215; recorder of London, 215–16; as Solicitor-General and Attorney-General, 216–17, 243– 44, 253–54, 260–64, 273–74, 293–99; treason prosecutions, 254–60 — intellectual life: annotates Littleton’s Tenures, 32; articulates theory of “artificial reason,” professional consensus of judges, as theory of law, 83– 107 (see also common law; rhetoric and common law); asserts intellectual independence of England, 143–44; claims to shun bombast, 148; and “common-law mind,” 136–40; conserves ruins at Castle Acre, 135; historical and antiquarian obsessions, 135–40; legal realism of interpretive approach, 120–24, 129–31; modernizes common law, 106–10, 125–34, 154–55; nostalgia for reign of Edward III, 8, 147–48, 200; personal library, 140–41, 200; “plain meaning” approach to legal interpretation, 121–22; possibly forges historical document, 142–43; seeks to

preserve historical records, 148; and Society of Antiquaries, 146–48 — personality: ambition, 35, 191–93; anticlerical attitudes, 180–81; appearance, 190–91; astrological errors, 212; bookishness, 36, 142, 200; combativeness, 50, 78–80, 203–4; compassion, 206; conflict over lands, 78–80; courtroom manner, 49–51; energy, 190–91, 202; favors education, 13, 184; finances, 43, 196–97, 207, 291–93, 295–96; gift to queen, 293; home life and holiday diet, 208–10; inheritance, 1–3; integrity, 91– 94, 204–5; as landlord, 193–95, 217–18, 289–90; mottos and self-portraits, 35, 155, 193; nostalgia for reign of Edward III, 8, 147–48, 200; overbearing tendencies, 201–3 and passim; personal religious conformity, 179–82; possible early marriage bids, 24–25; preserves Catholic church furnishings, 179; Puritan sympathies, 177–86; recreations, 205, 208, 288; self-knowledge, 35, 190, 205–6; sues for slander, 70; surname pronounced and spelled, 1; tearfulness, 199, 217; vanity and pride, 197–204 — relationships: rivalry with Sir Edmund Anderson, 63–66, 116–17; rivalry with Sir Francis Bacon, 120–24, 238, 243– 44, 246, 249, 254, 290–91; crosses Richard Bancroft, 63–66, 177–79; and mother-in-law Anne Bedingfield, 207– 9; junior colleague George Croke, 52– 53, 111, 182, 300; and Dudley family, 47–48; browbeaten by Queen Elizabeth, 217, 224–25; entertains Queen Elizabeth, 293; interrogates John Gerard, S.J., 266–71; frustrates schemes of Sir Arthur Heveningham, 71–82; and Howard family, 25, 37–39; and Inner Temple, 27–36, 47, 261–62; and Jesuits, 264–65; praised by Ben Jonson, 191; and legal clients, 45–47; idolizes Edmund Plowden, 34, 111; follows Sir John Popham, 34, 113–16; doubleedged dealings with Sir Walter Ralegh, 203, 264, 288–90; tangential contact with William Shakespeare, 286– 88; resists instruction by Archbishop John Whitgift, 17, 24, 177–82; dines

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Index with Sir Roger Wilbraham, 192; stenographer and protégé Roger Williams of Rhode Island, 186 — wives, “first and best wife” Bridget Paston, 207–14; second and trophy wife Lady Elizabeth Hatton, 179, 204, 213 Coke, Edward, son to EC, 209 Coke, Elizabeth, daughter to EC by Bridget Paston, 208 Coke, Elizabeth, daughter to EC by Elizabeth Hatton, 213, 293 Coke, Frances, daughter to EC, 213 Coke, Henry, son to EC, 208 Coke, John, son to EC, 209, 289 Coke, Robert, father to EC, 2, 4–7, 11, 35, 38, 56, 265 Coke, Robert, son to EC, 199, 209 Coke, Thomas, son to EC, 210 Coke, Thomas William, “Coke of Norfolk,” first earl of Leicester of the second creation, descendant of EC, 193 Coke, Winifred, née Knightley, mother to EC, 2–4, 7–10, 18, 26 Colchester, 253 common law: as “artificial reason” of judges, 84–90, 106–7; and classical rhetoric, 15–16, 31–32, 35–36, 48, 88–90; as custom, reason, positivism, and law of nature, 85–86; fact-specific analysis, 97–102; immemorial nature of, 137; judicial art and craftsmanship, 94–96; and judicial independence, 84–85; and judicial review, 84, 106–7; moral right and natural justice, 92–93; progressive and active role played by Coke, 106– 10; relationship to procedure and legal practice, 102–5 “common-law mind,” 135–38 “common learning” of bar, 108–9, 128–32 Common Pleas, Court of, 126–29 consideration (in contract), 133 Constable, servant to EC, 79 Cookley, Suffolk, 180, 184 Copping, Henry, martyr, 64 Corbet, Sir Miles, 75–78; Sir Miles Corbet’s Case, 75 Corfe Castle, Dorset, 292 Cornwallis family, 7, 42, 44 Cotton, Sir Robert, 142

Coventry, Thomas, 253 Cowper, Richard, 116 Crashawe, William, 142 Cratfield, Norfolk, 39 Crewe, Sir Ranulph, connection of EC, 3, 193 Croke, Sir George, 52–53, 111, 170, 182–83, 300 Cromer, Norfolk, 68 Cromwell, Edward, Lord, 36, 59, 80, 287–88 Crostwick, Norfolk, 1 Crowe family, 17, 25 Cuffe, Henry, 273, 281–82, 285–86 Cullen, Patrick, 250 Dacre, Francis, 38 Da Gama, Esteban Ferrara, 245, 247 Daniel, John, 251, 288 Darcy v. Allen, “Case of Monopolies,” 299– 301 Daventry, Northamptonshire, 166 D’Avia, Gomez, 246 Davies, Sir John, 85, 141, 204, 292 Day, John, 62 debt, action of, 125–26 Dedham, Essex, 168 Dee, Dr. John, 211–12 Denning, Lord, 120 Dennis, William, martyr, 64 Denny, Sir Edward, 36, 261 Devereux, Robert, second Earl of Essex, 243–47, 249, 251, 254, 258, 264, 276–85, 287 Digges, Dudley, 80 discontent, endemic in 1590’s, 254–58 Dixie, Sir Wolstan, 43, 182, 196 Dodderidge, Sir John, 89, 128–30 Domesday Book, 139–40 Doughtey, Robert, 262 dower, 8, 118–19 Downing, William, 76–78 Drake, Sir Francis, 226, 262 Druids, 135–36 Drury, Sir William, 65 Drury family, 44, 65, 182–83 Dudley family, earls of Leicester and of Warwick, 47–48, 66 Dunham, Suffolk, 44 Dyer, Sir James, Chief Justice, 52

Index Eden, Thomas, 77–78; Eden’s Case, 77– 78 Egerton, Sir Thomas, Lord Chancellor Ellesmere, 47, 50, 149, 181, 204–5, 210, 216, 252, 259, 263, 276, 280, 293, 297 Elizabeth I, Queen of England, 20, 26, 217, 224–27, 234–35, 238–39, 246, 253, 244, 263, 272, 287, 293 Ellesmere, Lord Chancellor, see Egerton, Sir Thomas Elyot, Sir Thomas, 30 enclosures, 258; EC’s work at Godwick, 194 Englefield, Sir Francis, 204, 217, 237; Sir Francis Englefield’s Case, 50–51 equivocation, 269–70 Evans, Henry, choirmaster, 262 executory interests, 121–22 ex officio oath and proceedings, 126, 168– 73, 177–83, 217, 273; Cawdrey’s Case, 169–70; Cullier v. Cullier, 183 Fenner, Edward, 116 feudal incidents, 124 feudum and feudal system, 153–55 Field, John, 158 Finch, Henry, 227 Fleetwood, William, 137–38 Fleming, William, 48, 65–66; Flemming’s Case, 66 Florence of Worcester, 149 Flowerdew, Edward, 72 Fortescue, Sir Thomas, 262 Frank, Jerome, 189 Franklin family, in-laws to EC, 6 Franklin’s Case, 77 Fraunce, Abraham, 88–89 Freke, Edmund, Bishop of Norwich, 61– 63 Fuller, Nicholas, 170, 172, 230, 300 Futter, Arthur, 78–80 Garnet, Henry, S.J., 296 Gawdy, Anthony, 275 Gawdy, Bassingborne, 56, 195, 275, 292 Gawdy, Clipsby, 275 Gawdy, Francis, 26, 74, 159, 300 Gawdy, Henry, 56, 74, 275 Gawdy, Philip, 275, 296 Gawdy, Robert, 56, 275

Gawdy, Thomas, uncle to EC, 2, 4, 6, 25, 38 Gawdy, Thomas, cousin to EC, 26, 36, 38, 43–44, 56 Gawdy family, 56, 262, 292 Gayton, minister at Little Cressingham, 183 Geoffrey of Monmouth, 144, 149 Gerard, John, S.J., 266–71 Gerrard, Sir Gilbert, 243, 295 Gibson, William, 64 Globe Theatre, 286 Godwick, Norfolk, 2, 13, 194, 274 Gold, Robert, 184, 208 Gooch family, in-laws to EC, 6 Goodman, Jane or Jeanne, 25 Goodwin, Vincent, 10 Gray’s Inn, 250 Greenwood, Henry, martyr, 219–20, 228– 30 Gresham, Lady Anne, 43, 75 Gresham, Sir Thomas, 43 Gresham, William, 274 Grey, Bell, O.P., 266 Grey, Thomas, Lord, 283 Gunpowder Plotters, 288 Hall, Arthur, 237 Happisburgh, Norfolk, 1 Hare, Nicholas, 2–3 Harsnett, Samuel, 279 Hatton, Sir Christopher, Lord Chancellor, 167, 215 Hatton, Lady Elizabeth, née Cecil, second wife to EC, 179, 204, 213, 292–94 Hayward, Sir John, historian, 277–80 Henry VII, King of England, 271 Heveningham, Suffolk, 71 Heveningham, Sir Arthur, 71–81, 261–62 Heydon, Norfolk, 4 Heydon, Sir Christopher, 68, 207, 288 Heydon, Sir John, 288 Heydon, Sir William, 68–70 Heydon family, 4 Heywood, servant to EC, 79 High Commission, Court of, 168–72, 298. See also ex officio oath Higham, Sir John, 60, 64, 74 Hobart, Attorney-General, 274 Hobbes, Thomas, 23, 186

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Index Hoby, Sir Edward, 222–23 Holby, William, 78 Holdsworth, Sir Richard, 154 Holkham, Norfolk, 194, 289 Holland, Joseph, 146–47 Holmes, Justice Oliver Wendell, 97, 154 Holt, Norfolk, 8, 10, 55, 184 Horne, Andrew, 151 Howard, Philip, Earl of Arundel, 38 Howard, Thomas, Third Duke of Norfolk, 25, 38 Howard, Thomas, Fourth Duke of Norfolk, 38, 39, 58–59 Howard, Lord William, 38 Howard family, 25, 37–39, 42, 297 Hunt, John, civilian, 178 Huntingfield, Suffolk, 71, 207–8, 217 Huse, William, Chief Justice, 271 Hutchinson, Lucy, 160 Inner Temple, 27, 30–31, 35, 47, 261–62 James VI and I, king, 204, 294–95, 298– 99 Jermyn, Ambrose, 65 Jermyn, Sir Robert, 65, 74 Jesuits, Society of Jesus, 250, 260, 264–71 jointure and dower, 118–19 Jonson, Ben, 191 Kempston, Norfolk, 193 Kett, Francis, heretic, 163 Kett, Robert, rebel, 162 Kett’s Rebellion, 162 Kettering, Northampton, 166 King’s Bench, Court of, 105, 125–27 King’s Lynn, Norfolk, 44, 55 Knightley, Sir Richard, of Fawsley, cousin to EC, 172, 182, 292 Knightley, William, grandfather to EC, 2 Knollys, Sir Francis, 223, 280 Knollys family, 38 Knyvett, Thomas, 292 Knyvett family, in-laws to EC, 56 Kypton, Norfolk (near Weasenham), 193 Lambarde, William, 147, 149, 287 Lee, Sir Thomas, 285 Leedes, George, brother-in-law to EC, 8, 10, 184

Leedes, Ursula, née Coke, sister to EC, 8, 10 Leedes family, in-laws to EC, 6 Lingen, Henry, 251 Little Cressingham, Norfolk, 183 Littleton, Thomas, Justice, author of the Tenures, 27, 32 Llewellyn, Karl, 103, 154 Lollards, 180–81 London, 26, 34, 166, 254 London guilds, Coke’s clients among, 46 Longham, Norfolk, 10, 78–80 Lopez, Rodrigo, physician, 244–51, 287 Lyon’s Inn, Coke serves as reader, 34 Magna Carta, 86, 92, 141, 170–71, 300 Mansell, Sir Robert, 288, 292 Manwood, Sir Roger, Chief Baron, 51 Marbury v. Madison, 84 Markham, Sir Griffin, 250–51, 273 Marprelate, Martin, 172 Martham, Norfolk, 76–77 Massingham, Norfolk, 194 Matthew Paris, 149 Mildmay, Sir Walter, 215 Mingay, Francis, nephew to EC, 292 Mingay family, in-laws to EC, 6 Mirror of Justices, 150–52 Modus Tenendi Parliamentum, 39, 137, 149; cited by EC, 237 Monday, William, 259 Monteagle, William Parker, Lord, 281, 288 Monty Python, 159 More, John, 60, 62 More, Sir Thomas, 25 Morice, James, 126, 170–71, 223–24 Mortimer, Sir John, writer and barrister, 266 Mosse, Miles, 183 Mountjoy, Lord, 273 Nashe, Thomas, 18, 33, 55 Norfolk, geography, 54–58 Norfolk assize circuit, ridden by Coke, 40–42 Norfolk politics, 67–82; abuses by royal officials, 68–69, 93–74; admiralty proceedings, 69; concealment claims, 75– 78; corruption, 68–69; lord-lieuten-

Index ancy system, 72–73, 81; militia musters, 273–74; patents for maintenance of highways, 72–73; Puritan JP’s oppose government, 67–69, 72–75 Norfolk countrymen as litigious, 5 Norfolk lawyers, loquacity of, 202 Northampton, 166 North Elmham, Norfolk, 36, 80, 194; Lord Cromwell’s Case, 36 Norwich, 2–3, 12–13, 42, 57–58 Norwich, religious repression in diocese, 61–65, 162–63 Norwich Cathedral, dean and chapter’s lands, 13, 75–78, 273. See also Martham O’Brian, Donell, 250 O’Conor, Dennis, 250 Onslow, Richard, Attorney-General, 274 opinions of counsel, 47 Orwell, George, 189 Osborne family, in-laws to EC, 6 Osterley Park, Middlesex, 43 Owen, Hugh, 251 Oxfordshire rebellion, 256–57 Paget, Thomas, Lord, 50–51, 204, 217; Lord Paget’s Case, 50–51 Paget, Sir William, 50–51 Palavicino, Sir Horatio, 248–49, 252 Parker, John, 145 Parker, Matthew, Archbishop of Canterbury, 140, 144–46, 150–51 Parkhurst, John, Bishop of Norwich, 59 Parliament of 1571, 158–59 Parliament of 1572, 158–59 Parliament of 1586, 167 Parliament of 1589, 39, 74–75 Parliament of 1593, 218–41 passim; bill on monastic lands, 231–32; bills “of no great moment,” 226; bills on recusants and religion, 227–31; committee system develops, 234; Commons confer with Lords, 228; convenes, 220–22; crowded conditions of Commons, 223–24; duties and fees of Speaker, 218–19; ex officio oath denounced, 273; Fitzherbert’s Case, 226–27, 234–36; initiatives begun in House of Lords, 227– 28; outlawed members, 226–27; Puri-

tan dissidents suppressed, 222–26; subsidy debates and vote, 226–27 — and Coke: EC chosen as Speaker of Commons, 218; EC cites legal history to Commons, 222, 228, 236–37, 241; EC explains procedures, 233–34; EC, remarks and oratory, 221–22, 237–40; EC reprimanded by queen, 224–25; EC upholds privileges of Commons, 227–28, 234 Parliament of 1597, 274–75 Parliament of 1601, 292, 294 Paston, Clement, 44 Paston, Elizabeth, sister-in-law to EC, 65 Paston, John, father-in-law to EC, 38, 207 Paston family, 44, 211 Pawe, Andrew, great-grandfather to EC, 2–3 Pawe, William, 3 Penry, John, 225, 244; wife petitions Commons, 226 Periam, Sir William, Justice, 51, 297 Perrot, Dorothy, née Devereux, 243 Perrot, Sir John, 243, 259 Perrot, Thomas, 243 Peyton, John, 292 Phillips, Augustine, 286–87 Phillips, Oliver, 62, 65 Plowden, Edmund, 27, 32–34, 110–13, 150; theory of statutory interpretation, 110–13; cited or followed by EC, 301 Pocock, J. G. A., 137–38, 150–53 Polwhele, Robert, 250 Popham, Sir John, 50, 113–14, 216, 278– 80, 284; active character, 113–14, 266; as Chief Justice of King’s Bench, 297– 300; fondness for bear-baiting, 34, 114; mentor to EC, 34, 113–14, 116, 127, 132 Posner, Richard, 134 Potter, John, 10 Powershall, Essex, 290 prohibitions, 170–71 Presthall, John, 249–50 Prynne, William, 136–37 Puckering, John, Lord Keeper, 220–21, 226, 252 Puritanism and Puritans: 10, 60–68, 71– 72, 74, 81, 156–75, 177–88, 219–20, 228– 30, 272–73; at Cambridge, 19–24; clas-

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Index sis movement, 165–68, 172; defended or favored by EC, 65–82, 176–88, 272–73; Separatism (Brownism, Barrowism) distinguished, 62, 159–60; strength in Norfolk and Suffolk, 60–68, 161–63; as opposition ideology, 161; Puritan free state at Bury St. Edmunds, 61–64 purveyance, 275 Puttenham, George, 89 Ralegh, Sir Walter, 34, 230, 264, 283, 288–89, 297; profits shared with Coke, 288–90; prosecuted by Coke, 203 recusancy, 157; bills relating to, 227–31 Redgrave, Suffolk, 44 religion and politics, 157–59; and Edmund Plowden, 110–11; and historical research, 144–45; in Norfolk and Suffolk, 161–63 rhetoric and common law, 15–16, 31–32, 25–36, 48, 88–91; exemplum and lawcase, 31–32, 35–36, 97–100; qualities and virtue of judges, 91–94, 105–6 rhetorical training: at Cambridge, 17; at Inns of Court, 30–32; at Norwich grammar school, 12–13; in Tudor curriculum, 14–15 Rogers, Richard, Puritan activist, 185–86 Rolles, Richard, 259 Roman Catholicism and Catholics, 157– 59; Coke’s clients among Catholics, 50–51; as opposition ideology, 161. See also recusancy Romford, 217 Rutland, 169 Rutland, Earl of, 281, 288 Sackville, Thomas, Lord Buckhurst, 143, 263, 274, 282, 294 Sadleir, Ralph, son-in-law to EC, 293 St. German, Christopher, 35, 112 Sandys, Lord, 288 Sarum, Bishop of, 264 Savile, Sir Henry, 140 Scambler, Edmund, Bishop of Norwich, 63 Scottow, Norfolk, 164 Selden, John, 140 Seneca, 90 Seton, John, 17

Seymour, Thomas, 255 Seymour family, 255 Shakespeare, William, poet and dramatist, 14, 33–34, 133–34, 156, 160, 198–99, 218, 286–88; alluded to by EC, 288 Shelley, Edward, 115 Shelley, Henry, 115 Shelley, Richard, 115–16 Shelley’s Case (Wolfe v. Shelley), 114–20 Sheringham, Norfolk, 69 Sherley, Thomas, concealer, 232 Shrewsbury, Earl of, 260 Sidney, Sir Philip, 204 Skippon, Philip, Cromwellian general, 162 Skippon, Thomas, Catholic yeoman, 162 Skippon family, neighbors to EC, 162 Slade’s Case (Slade v. Morley), 125–34 Smythe, Sir John, 263–64 Society of Antiquaries, 146–48 Some, Leonard, 179 Southampton, Earl of, see Wriothesley South Elmham, Suffolk, 60 Spanish Inquisition, unexpected nature of, 159 Sparham, Norfolk, 1 Specot’s Case, 183 Spelman, Sir Henry, friend of EC, 4, 155, 275 Spenser, Edmund, 143 Squire, Edward, 258–60 Stanhope, Sir John, 260 Stanhope, Michael, 75, 77 Stanley, John, lawyer, 35 Stanley, John, traitor, 258–60 Stanley, Sir William, 250 Stapleton, Thomas, 141 Statute of Frauds, 133 Statue of Uses, 118, 121–22. See also dower; jointure and dower Steer, Bartholomew, 256–57 Stibbard, Norfolk, 70 Stiffkey, Norfolk, 43, 67 Stody, Norfolk, 9 Stoke Poges, 193, 293 Stowe, Essex, 179 Stroud family, 52 Stubbes, Anne, née Coke, sister to EC, 8, 10, 156, 163–65, 183–84, 187–88; exchanges letters with Thomas Cart-

Index wright, 173–74; prominent “sectarie recusant,” 164 Stubbes, Edmund, nephew to EC, 184 Stubbes, Francis, brother-in-law to EC, 8, 10, 164–65 Stubbes, John, 165 Stubbes family, 6, 8, 165, 184–85, 217 Sutcliffe, Matthew, 17 Sutton, Thomas, 13 Tate, Francis, 146–47 Taverner, neighbor, 80 Thacker, Elias, martyr, 64 Thomas, Valentine, 260, 297 Thorington, Suffolk, 184, 196, 217 Thorne, Samuel, 108 Thurston, John, 35 Tinoco, Manuel, 246–47, 251 Tittleshall, Norfolk, 2, 185, 194, 272 Toftrees, Norfolk, 262 Topcliffe, Richard, 236, 267, 271 Tower of London, 254–55, 268 Townshend, Sir John, 46, 280 Townshend, Robert, 292 Townshend family, 2–3, 38, 42, 44, 56 Travers, Walter, 182 treason prosecutions, 244–52, 254–60, 282–86 Tresham, Francis, 251, 288 Tresham, Sir Thomas, 250–51 Trinity College (Cambridge), 18, 238; records relating to EC, 18 Tympson or Timpson, Henry, 266 Vestiarian Controversy, 19–22 Verstegan, Richard, 141 Waad, Sir William, 249 wager of law, 126, 120–33 Walpole, Henry, martyr, S.J., 251, 265 Walpole, Richard, S.J., 258 Walpole family, 267 Walsingham, Sir Francis, 65, 215 Warner, Henry, 292 Weasenham, Norfolk, 162, 193 Wellingham, Norfolk, 193, 217 Wentworth, Peter, 159, 222

Westacre, Norfolk, 2, 252 Wethersfield, Essex, 185 Wheatley, Anthony, 289 Wheatley, Muriel, 194, 289 Wheatley, William, 289 Whissonsett, Norfolk, 9 Whitgift, John, Master of Trinity, Archbishop of Canterbury, 25, 65, 158, 278– 81, 298; anti-Puritan campaigns, 165– 73, 183, 219–20, 229–31; favored by queen, 20, 219; Master of Trinity College, 20; protests charge to grand jury by EC and Francis Wyndham, 177–78; tutor to EC, 17, 24 Whitwell, Norfolk, 3, 7 Williams, Richard, 250 Williams, Roger, 186 Williamson, Nicholas, 260 Wilson, Thomas, 89 Winchester, cathedral treasury burgled, 250 Wisbech, 264–65 Wolfe, John, 279 Woffett, John, 79 Woodhouse family, cousins to EC, 28, 38, 44, 45, 267, 271 Woolf, Virginia, 156 Wray, Christopher, Chief Justice, 63–66, 216 Wriothesley, Henry, third Earl of Southampton, 282–84 Wyndham, Francis, Justice, 44, 56, 74– 75, 80–81, 177–78, 217; Justice Windham’s Case, 75; Windham and Sir Edward Clere’s Case, 75 Wyndham family, 42, 52 Yale, David, 138 Yarmouth, Norfolk, 55 Yorke, Edmund, 250 Young, Henry, 250 Yelverton, Christopher, 276, 282 Yelverton family, 267 Young, Richard, JP, 220, 225, 265 Zouch, Edward, Lord, 17

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Jurists: Profiles in Legal Theory general editor

William Twining John Dinwiddy, edited by William Twining, Jeremy Bentham Roger Cotterrell, Emile Durkheim: Law in a Moral Domain Colin Imber, Ebu’s-su‘ud and the Islamic Legal Tradition Daniel R. Coquillette, Francis Bacon Edited by Robert W. Gordon, The Legacy of Oliver Wendell Holmes, Jr. Robert S. Summers, Lon L. Fuller