He had been somewhat a judge to his heart's content. afraid when he came to England that he might hear such unpalatable doctrines as had excited his indignation in Buchanan's treatise "De jure regni apud Scotos," and he expressed great joy in the solemn recognition that he was an absolute sovereign. Our indignation should be diverted from him and his unfortunate son, to the base sycophants, legal and ecclesiastical, who misled them. Fleming ap- Justice of the On the death of Popham, no one was thought so fit to succeed him as Fleming, of whom it was always said that "though slow, he was sure;" and he became Chief Justice of England the very same day on which Francis Bacon mounted the first step of the political ladder, 1607. receiving the comparatively humble appointment of Solicitor General.* Bench. case of the Lord Chief Justice Fleming remained at the head of the common law rather more than six His judgyears. During that time, the only case of ment in the general interest which arose in Westminster Postnati. Hall, was that of the POSTNATI. As might be expected, to please the King he joined cordially in what I consider the illegal decision, that persons born in Scotland after the accession of James to the throne of England were entitled to all the privileges of naturalborn subjects in England, although it was allowed that Scotland was an entirely separate and independent kingdom. Luckily, the question is never likely again to arise since the severance of the crown of Hanover from that of Great Britain; but if it should, I do not think that Calvin's case could by any means be considered a conclusive authority, being founded upon such reasoning as that "if our King conquer a Christian * Dug. Chron. Ser. 102. A.D. 16071613. Prosecution of the Countess of Shrewsbury. country, its laws remain till duly altered; whereas if he conquer an infidel country, the laws are ipso facto extinct, and he may massacre all the inhabitants." * Lord Chief Justice Fleming took the lead in the prosecution of the Countess of Shrewsbury, before the Privy Council, on the charge of having refused to be examined respecting the part she had acted in bringing about a clandestine marriage in the Tower of London, between the Lady Arabella Stuart, the King's cousin, and Sir William Somerset, afterwards Duke of Somerset, He laid it down for law, that "it was a high misdemeanour to marry, or to connive at the marriage of, any relation of the King without his consent, and that the Countess's refusal to be examined was a contempt of the King, his crown, and dignity, which, if it were to go unpunished, might lead to many dangerous enterprises against the state.' He therefore gave it as his opinion, that she should be fined 10,000l., and confined during the King's pleasure."† 6 While this poor creature presided in the King's Bench, he was no doubt told by his officers and dependants that he was the greatest Chief Justice that had appeared there since the days of Gascoigne and Fortescue; but he was considered a very small man by all the rest of the world, and he was completely eclipsed by Sir Edward Coke, who at the same time was Chief Justice of the Common Pleas, and who, to a much more vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence, From the growing resistance in the nation to the absolute maxims of government professed by the King and sanctioned by almost all his Judges, there was a general desire that the only one who stood up for law 1 against prerogative should be placed in a position which might give greater weight to his efforts on the popular side; but of this there seemed no prospect, for the subservient Fleming was still a young man, and likely to continue many years the tool of the Govern ment. Death of Chief Justice Fleming. A.D. 1613. In the midst of these gloomy anticipations, on the 15th day of October, 1613, the joyful news was spread of his sudden death. I do not know, and I have taken no pains to ascertain, where he was buried, or whether he left any descendants. In private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the Common Pleas, the position for which nature had intended him.* He dwindled the more rapidly into insignificance from the splendour of his immediate successor. * I have since learned (but it is not worth while to alter the text) that he was buried at Stoneham in Hampshire; that his will, dated 21st July, 1610, was proved 30th October, 1613; that his eldest son intermarried with a daughter of Sir Henry Cromwell, and that their descendants remained seated at Stone ham for some generations. The Chief Justice appears to have had a residence in the Isle of Wight. The name of "Sir Thomas Fleming, L. C. J. of England," appears in the list of the members of a Bowling-Green Club established in the island, who dined together twice a week. (Worsley's Isle of Wight, p. 223.) CHAPTER VII. LIFE OF LORD CHIEF JUSTICE SIR EDWARD COKE, FROM HIS BIRTH TILL HE WAS MADE CHIEF JUSTICE OF THE COURT OF COMMON PLEAS. Merits of Sir Coke. We now come to him who was pronounced by his contemporaries, and is still considered, the Edward greatest oracle of our municipal jurisprudence, who afforded a bright example of judicial independence, and to whom we are indebted for one of the main pillars of our free constitution. Unfortunately, his mind was never opened to the contemplations of philosophy; he had no genuine taste for elegant literature; and his disposition was selfish, overbearing, and arrogant. From his odious defects, justice has hardly been done to his merits. Shocked by his narrow-minded reasoning, disgusted by his utter contempt for method and for style in his compositions, and sympathising with the individuals whom he insulted, we are apt to forget that "without Sir Edward Coke the law by this time had been like a ship without ballast;"* that when all the other Judges basely succumbed to the mandate of a Sovereign who wished to introduce despotism under the forms of juridical procedure, he did his duty at the sacrifice of his office; and that, in spite of the blandishments, the craft, and the violence of the Court of Charles I., he framed and he carried the PETITION OF RIGHT, which contained an ample recognition of the liberties of Englishmen-which bore living witness against the law * Words of Lord Bacon. less tyranny of the approaching government without parliaments-which was appealed to with such success when parliaments were resumed, and which, at the Revolution in 1688, was made the basis of the happy settlement then permanently established. It shall be my object in this memoir fairly to delineate his career and to estimate his character. 66 His family. SIR EDWARD COKE, like most of my Chief Justices, was of a good family and respectable connections. The early Chancellors, being taken from the Church, were not unfrequently of low origin; but to start in the profession of the law required a long and expensive education, which only the higher gentry could afford for their sons. The Cokes had been settled for many generations in the county of Norfolk. As the name does not correspond very aptly with the notion of their having come over with the Conqueror, it has been derived from the British word Cock," or "Coke," a CHIEF; but, like "Butler," "Taylor," and other names now ennobled, it much more probably took its origin from the occupation of the founder of the race at the period when surnames were first adopted in England. Even in the reigns of Elizabeth and James I., Sir Edward's name was frequently spelt Cook. Lady Hatton, his second wife, who would not assume it, adopted this spelling in writing to him, and according to this spelling it has invariably been pronounced.* Camden has traced the pedigree of the family to William Coke of Doddington, in Norfolk, in the reign of King John. They had risen to considerable distinction under Edward III., when Sir Thomas Coke was made Seneschal of Gascoigne. From him, in the right male line, was de * It is amusing to observe the efforts made to disguise the names of trades in proper names, by changing i into y, by adding a final e, and by doubling conso nants. |