Bestseller Revisited

THE LION AND THE THRONE (652 pp.) --Catherine Drinker Bowen--Atlantic-Little, Brown ($6).

Wrote a legal historian: "What Shakespeare has been to literature, what Bacon nas been to philosophy, what the translators of the Authorized Version of the Bible have been to religion, Coke has been to the public and private law of England." What goes for English law goes for American, too. Catherine Drinker Bowen, who wrote about lawyer-patriots before (Yankee from Olympus, featuring Justice Oliver Wendell Holmes, and John Adams and the American Revolution), has produced an outstanding biography of Sir Edward Coke--it appeared briefly on the bestseller lists--in which greatness of personal achievement is framed in a superb setting of grandiloquent language and historical splendor.

Many Americans and Englishmen have an idea that liberty was born with Magna Carta and grew steadily to maturity through the centuries. The Lion and the Throne exposes this fallacy. When Coke (rhymes with hook) was born (1552), the purpose of three centuries of English monarchs had been to ignore Magna Carta.

Fifteen years after Coke's death in 1634, Charles I paid with his head for trying to follow suit. It was Coke, above all men, who wrote finis to the royal four-flush.

Straight Battle. Coke is still constantly cited by lawyers and judges on both sides of the Atlantic, e.g., in Chief Justice Earl Warren's majority opinion on the Watkins case (TIME, July i). The complexities and oddities of Coke's Commentary upon Littleton helped make a lawyer of Patrick Henry in six weeks, drove Daniel Webster to "despair," and got from Thomas Jefferson the tribute of being the law's "universal elementary book."

Coke, a barrister's son. caught the attention of his fellow lawyers when he was still an Inner Temple student, by framing a charge in Latin against the Temple's chef for bad cooking. He left the Temple gates to start practicing--according tp legend with only "a horse, a rapier, ten pounds, a ring set with three rose diamonds and the motto (O Prepare.' " His first client was a parson who had been served with a writ of slander. The case was thrown out when Coke spotted that the word messoinges, i.e., lies, had been translated as "messages." When the litigious plaintiff brought suit afresh, young Coke was tempted to ask for a demurrer, i.e., to plead that even if the plaintiff's arguments were correct, there was no legal cause of action. Then he routed the plaintiff in a straight legal battle. Out of this victory came the first of many sonorous Coke maxims: "[Never] hazard the matter upon a demurrer."

King's Watchdog. Coke climbed fast--recorder of Norwich, M.P. for Aldeburgh, solicitor general and recorder of London, Speaker of the House of Commons. In 1594 Elizabeth raised him to be Her Majesty's Attorney General. In this post Coke's success was so great (he prosecuted both the traitorous Earl of Essex and the wretched Guy Fawkes) that James I made him Chief Justice of the Common Pleas--and overnight Coke became another man.

No longer the "King's watchdog," he became the watchdog of the common law. The historic Coke maxims began to roll out. "No man may be punished for his thoughts"; "And if every man should be examined upon his oath, what opinion he holdeth concerning any point of religion, he is not bound to answer . . ."; "When an Act of Parliament is against common right and reason, the common law will. . . adjudge such Act to be void."

A century and a half later the Massachusetts Assembly was to declare the Stamp Act "against Magna Carta and the natural rights of Englishmen and, therefore, according to the Lord Coke, null and void." And it was to give effect to this same manner of ruling that the U.S. Supreme Court itself was brought into existence.

Liberty v. Liberties. Coke's clashes with the King began immediately. He denied the King's right to make law by simple proclamation, and when James I assured him that he would "ever protect the common law," Coke retorted sharply: "The common law protecteth the King." The enraged James went at him "with bended fist, offering to strike," reported a chronicler, "Which the Lo. Cooke perceaving fell flatt on all fower; humbly beseeching his Majestic to take compassion ..."

Later, Coke turned again defiant. The exasperated James retaliated, first by kicking Coke upstairs and creating him Lord Chief Justice of England, second by dismissing him altogether from the bench. It was useless. The "masterful, masterless" Coke merely returned to the House of Commons, where his shrewd advice created endless trouble for James. When Commons suggested that James be petitioned for liberty of speech and action, cagey Edward Coke pointed out to the members the potentially fatal error of begging for something that was already theirs by right of law. "Take heed," he said, "that we lose not our liberties by petitioning for liberty," and: "If my sovereign will not allow me my inheritance, I must fly to Magna Carta."

Remedy for Consumption. James sent Coke to the Tower of London, from which he was released primarily because his imprisonment weakened the prestige of the Crown. "Throw this man where you will," growled James, "and he falls upon his legs." Within three years James was dead, Charles I on the throne--and three years after that, Coke was back in Commons to participate in what has been called "the crisis of Parliaments." Said one member: "We shall know by this if Parliaments live or die ... Men and brethren, what shall we do?" Up stood Coke, 76 and full of "sturdy confidence," and said: "The estate is inclining to a consumption, yet not incurable. For this disease I-will propound remedies."

Coke's remedies were habeas corpus (its use as a safeguard against unjust imprisonment was only beginning to emerge) and that great milestone of liberty, the Petition of Right, which set out at length what Coke put bluntly in brief: "Magna Carta is such a fellow that he will have no sovereign." When Charles, cornered by lack of money, gave sour assent to the petition, there "broke out ringing of bells and bonfires" such as London had not seen for years. But the petition was Coke's last great achievement. When Parliament rose, he retired into the country. He could not know that a century and a half later the patriots of New England would fight Coke's battle over again, resting their case upon Coke precisely as Coke had rested his upon the Great Charter.

Readers of Author Bowen's biography may be tempted to compare Justice Coke with her earlier subject, Mr. Justice Holmes. Seen superficially, both were liberals and doughty fighters for freedom against privilege. But they meant very different things by freedom, privilege, and, in the end, by the law itself. To Coke, the law, however flexible, must be based on permanent principles and rest above persons. To Holmes, the law was based less on permanent principles than on current need, an experiment shifting with the times. To Coke, liberty was "such a fellow that he will have no sovereign." To Holmes, liberty was a fellow to be guaranteed and enforced by that modern sovereign, Government.

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