[MUSIC] This idea of a, the origins of an ancient constitution and the rights and relationship between kings and common law goes back way into the mist of times, was a sort of consensus, wasn't it? So, James is reacting against the commonplace account. How, how unique was Coke in his resistance, do you think? >> I think he was representing the general view of the profession. They're sometimes being characterised, lawyers are sometimes being characterized as very naive in supposing that everything had stayed the same since time immemorial. I think that's a false picture lawyers were used to managing history professionally. They knew that there had been changes over time, and of course, Coke knew there had been changes over time. He was quite a scholar. He collected Anglo-Saxon manuscripts and I don't think he meant that every jot and title of the law remained exactly the same since Saxon times. In fact, Coke said sometimes when he got carried away even pre-Roman times but simply that you couldn't trace the origin of the system as a whole, this is what the English were inheritable to. And you couldn't dispossess them by conquest. By a Scottish King coming down peacefully and just saying, sorry, there was none more English law. >> I think one of the most wonderful things I've encountered in, in thinking about Cook was to have read Nicholas Vincent's little book on Magna Carta. And then read some Coke and thought my lord if, if Coke was understanding what Magna Carta was in response during the reign of John he was applying it to James. >> Yeah. >> And that sort of parallelism of historical context is, is a very powerful dimension. Was Coke a brave man? Can you give me a sense of what, what sort of human being he was? >> Well, he was, I think. He'd begun to see the difficulties immediately after James' accession and he was in the awkward position of being attorney general to James I, and already in 1604, he wrote a little tract, which isn't in print yet but it will soon be in print on Magna Carta, chapter 29, linking it with habeas corpus and all these remedies, which really hadn't been linked to Magna Carta before. But Coke saw that this might be the weapon which could be used to defend English liberties, even while he was acting as the chief law officer of the, of the king. >> Mm-hm. >> And then, he became a judge in 1606. Chief justice of the Common Pleas and later of the King's Bench. And a stream of decisions came from his court under his influence, developing these prerogative remedies striking down decisions by the high commission asserting the importance of liberty, and of not forcing people to incriminate themselves on oath and all these things that we take for granted. Much of it was Coke's doing and in 1616, he was summarily dismissed. He'd become too much of a thorn in the king's side. >> Just sort of one man active resistance. >> It was really, yes. And it was an extraordinary episode in 1608, when James told Coke that he, he the King could decide cases himself. The judges were just his ministers and shadows and should do whatever he said. And Coke said, well, your majesty is indeed very wise, but you haven't studied the common law and so you shouldn't. And the king apparently said to him, it will be treason to affirm that I'm under the law, and Coke again according to his own account quoted Brackton in Latin to the effect that the king was under no man, but he was under God and the Law because it was the Law which made him king. And that was something he'd actually written in his Law Reports in 1604. So, it all goes back to the beginning of the reign and the concerns that were formulating in his mind. >> And do, do we know much about whether Coke actually had access to the Magna Carta. Obviously it exists in some of the printed collections of statutes. Does he ever encounter an older artifact itself? >> I'm not sure of that. I'd suspect he did, because he knew Cotton, the great manuscript collector and Cotton had two Magna Cartas, I think so, Coke probably had a look at those. >> Yeah. >> And he possessed medieval statute books and would have different versions. >> Yeah. He was well aware of course, when we talk about Magna Carta as the 1215 charter of King John, all that was irrelevant for legal purposes, it was the Henry III charter which was law. >> Mm-hm. And that's one of the interesting things, you know, we as modernists don't often perceive that the constitutional significance of 1215. It isn't at the forefront of people like Coke's mind when they're using Magna Carta in this way? >> No. I think Magna Carta's very awkward in a way for Coke. He saw it's enormous rhetorical significance, and it was a guarantee of liberty by a king, confirmed 30 times, as he was fond of saying, by successive kings. And yet, if it took any legal effect by virtue of being a royal charter, that rather implied that the rights weren't there otherwise, and that what was given by a king could be taken away by a king. So, he had to couple it with this idea that it merely confirmed what had already been common law forever. >> Mm-hm. >> I say it's very difficult for a modern mind to grasp that really, isn't it? That you know, in one sense all of these statutes are confirming things that go way, way back into human history, and perhaps even to God? But that, that sense of continuity is the thing that gives it authority. >> Yes, of course, things went even worse, didn't they in the reign of Charles I? And the, the great moment for Coke is over the Petition of Right, where you know, in a, in a very crude way, if I put it this way first, you know, Coke attempts to encourage Charles I to reissue Magna Carta. This was incredibly dangerous politically, wasn't it? >> Well, I suppose Cook thought he hadn't anything to lose by then. He was older than me, he was well into his 70s by this stage. Having been sacked as a judge in 1616, and stayed out of public life for a bit writing his enormously important books. He then went back into Parliament. He hadn't been a member of Parliament under Elizabeth, he'd been speaker of the Commons under Elizabeth. He, he now became a member of Parliament again, and became almost a leader of the opposition. He became very concerned by all the downhill trends of the Stewart monarchs, which it, as you say, it got even worse since James I time. The, the two big issues were [COUGH] the forced loan, by which the king hoped to raise money without having to call parliament. Parliaments were very inconvenient to kings because they kept protesting, and so the kings advisors came up with this idea, we'll force people to lend money to the crown. Of course, no one expected it ever to be paid back again. And then the question arose what would happen if someone said I, sorry I don't want to lend money to the King? Well, they were locked up. A Chief Justice Crew, one of Coke's successors was himself dismissed, for declaring the forced loan illegal. But the king went on locking people up and five knights brought a famous Habeas corpus suit suit in the King's bench which failed. The court didn't reach a very certain decision but it was put about anyways, that the court had decided that the King could command people to prison by his prerogative, and that that could not be questioned in any court. So, that was very worrying. The idea that people could be locked up indefinitely without bail, and without having to explain why they've locked them up. But at the same time, the King had revived marshal law. Might say revived. He was using it in peace time which was a novelty. And commissions to exercise martial law were resulting in, not only soldiers, but civilians being tried for their life without jury, or any ordinary legal procedure. So, [...] a lot of very serious questions were coming to a head [COUGH] in the 1620s. And the King had to call a parliament in the end, because he was fighting some rather ill-advised wars against Spain and France. He needed the money and the forced loans weren't working very well. So he summoned a Parliament, in which Coke served, and they, this was, on the agenda. They were debating liberty, flat out really and there was a very important conference between the lords and the commons, in which Coke was a leading light. And he was active not only speaking, but drafting text and producing ideas. He had a bill for explaining Magna Carta, another bill for confirming Magna Carta. The, the king said he would confirm Magna Carta provided there was a saving of his royal prerogative power. And the commons didn't find that acceptable. So, in the end, the only achievable solution was the Petition of Right, which is still in force today, which was probably Coke's idea. And some think it was written by him. >> Mm-hm. >> In, in the treatise which he wrote in 1604, he attributed almost everything that was good about English law to Magna Carta, which was not the tradition at that time. It can, in a sense, be fathered on Coke. He said everything that anyone has in this world or that concerns the freedom and liberty of his body or his freehold. All the benefit of the Lord at which he is inheritable. All his native country in which he was born. All the preservation of his reputation or goods, or his life, blood and posterity. To all these things this act extends. >> Thomas Hobbs famously blamed the origins of the English Civil War, on these sort of devious Republican common lawyers. Do, do you think that's a fair assessment of Coke's approach to the law and his attitude to monarchy? >> Well, I doubt very much whether it was his intention, he was spared the Civil War by eight years. In a sense, you could say that, common law thinking lead to the Civil War, but actually it split the Inns of Court down the middle. Members of the Inns fought on both sides. In fact, the Inns of Court law school closed down for four years, because everyone was joining in the Civil War. Very much committed on both sides. So, it was [...] an appalling wrench for everybody to decide whether it was better to soldier on with a monarchy and try and make it work or start again. >> One of the interesting insights is Charles I, obviously, after the Petition of Right, is very hesitant about Coke's role in promoting Magna Carta. And almost on Coke's deathbed ensures that his, Coke, researches into Magna Carta for the second volume of the institutes is sort of captured by royalist men. That's eventually published in 1642, and Cook has an amazing afterlife. Do you think that afterlife is fair to Coke's original intentions, or is it another example of how we historians re-imagine and reinvent a tradition? >> Well, of course, there's a lot of reinvention of tradition and the same goes for Magna Carta. Which was really survived by magic rather than by its actual words. But Cook wasn't a Republican, I don't think, he served as attorney general to Queen Elizabeth and James I, had been Lord Chief Justice of England. What he wanted was a constitutional monarchy. Which he believed this country had enjoyed for many centuries before the Stewart kings. So, I think he would have been horrified by the murder of Charles I. And, he also took a fairly balanced view of the need for emergency powers, as attorney general he had to deal with the Guy Fawkes incident. Which was the most awful terrorist plot ever, ever unearthed in this country until recent times or perhaps even exceeded that, because it would have blown up the king and the entire ruling class in one great explosion. And there were worries that the Jesuits and their agents were plotting other awful incidents. And so, Coke accepted that it might be necessary to lock people up on the say so of the privy council. On the other hand, he thought it utterly unacceptable that people should not have an opportunity to bring their case before a court, so they could be stated why they'd been imprisoned, and whether or not they should have bail. And that a court could review that decision. >> I think that's a wonderful way of putting it, because it means in one sense that Sir Edward Coke still speaks to us today. >> Yes. >> You know the tradition of Magna Carta is about creating liberty, but also recognizing the need for emergency powers when necessary. Yes, and he also said in his tract of 1604 that Habeus corpus reaches to all the king's dominions, not just England. And that was a very important point discussed in the American Supreme Court in the Guantanamo Bay case where they followed the English precedents. >> Interesting, so Coke might have had position on rendition. And those sorts of issues. >> Absolutely, yes. >> So he's a mind although profoundly early modern in one sense that speaks to us still today. >> Yes indeed. >> Brilliant. You, you've given us a wonderful sort of account of the principles of law and his deep researches into the historical dimension of the law. But, what was he like as a human being? >> Well at the principle characteristic that jumps to mind is prodigious industry. Quite extraordinary hard work that he put in. I've been editing his notebooks recently which are tiny little books. At least they begin as tiny little books written in minute handwriting, then interlined with further notes and corrections and then marginal notes along the side to create a tangled mess of print. He was obviously very shortsighted and Lawvery tells us that he was too vain ever to wear spectacles. So he must of worked very close at these books. Getting up at 3 in the morning, we're told, and managing with very little sleep. By his 30s in the 1580s, he had really committed to his mind all the Medieval common law. And he was involved in almost all cases of any importance. He was arguing points of law in at least a 100 cases every year, which means approximately one a day in term time. Besides conducting trials of the assizes, giving advice, writing just enormous industry and, and like so many workaholics, as we call them nowadays. He was perhaps a rather awkward personality. It was said that he conversed too much with books and too little with men. And he was certainly vain, not only about his appearance, not wearing spectacles but also about his achievements. His notebooks only mention his own involvement in cases when he won them. [LAUGH] And he obviously wasn't all that easy to get on with. His second wife said after his death, we shall never see his like again. Praises be to God. [LAUGH]. >> Oh, dear. Very good. He made, he made a good career as a lawyer of course, I think. Was he a celebrity? I, I know you know, that there are many portraits. We have some of them here in the inner temple, but there are also printed copies of his image. So, what would somebody in the 1630s perhaps have had a print of Coke. In there now enjoying their library as, as an inspiration perhaps. >> They might well have done. They were certainly all lawyers would all know his portrait after 1629 from Coke On Littleton, which was the standard textbook on Property Law until the 19th Century. >> Hm. >> And that has a portrait of Coke as a frontispiece. >> Hm. >> But he was certainly a celebrity. And in the law reports in in the 1580s I've seen him described as, the famous Coke, utter barrister of the Inner Temple. And this was long before he became a law officer of the crown. >> So it, it wouldn't be fair to say that although there are obviously lots of different contexts Coke's contribution really transformed. Perhaps the sort of broader public understanding of the meaning and significance of Magna Carta for that contemporary world. >> yes. I think he was widely seen as a hero, and he should still be considered a hero. There are, there are many reports of Coke's speech's in the 1628 discussions and some of them come across as rather rambling, and it's not clear it will be quite understandable in 75 if sometimes he wandered a little. I suspect that very often, it's because the note takers who were perhaps writing up from memory just couldn't keep up with all the Latin quotations and year book cases that he was citing. But I might read it. Passage from one of the speeches he made at the Second Conference with the House of Lords on the liberty of the subjects. One could get a flavour of the way he put things. He said, I put your Lordships in Mind that you had the greatest Cause in Hand that ever came in the Hall of Westminster or indeed in any Parliament. My Lord, your noble ancestors whose places you hold were parties to Magna Carta, so called for weight and substance. For many other statutes are greater in bulk and you, my Lords, the Bishops, are commanded to thunder out against all infringers of Magna Charta. A sentencia lata super Chartam. And all worthy judges, that are worthy of their places, have had Magna Carta in Great Estimation. Now, as Justice hath a sword, so hath it a balance. But therefore in the one balance, seven acts of Parliament records, precedents, reasons, all that we speak, and in God's name, put in the other balance what Mr. Attorney has said, his wit, learning, and great endowments of nature. And, if it be weighty, let him have it. If no, then conclude with us. You are involved in the same danger with us. And therefore we desire you in the name of the commons of England represented in us, that we may have cause to give God and the King thanks for your justice in complying with us.
