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BACON AND COKE
by Charles B. Parselle

Sir Francis Bacon died in 1626, about the time the colonies on the East coast were getting started. He still rates five pages in the Encyclopaedia Britannica. A lawyer himself, he approved of lawyers, writing: “The greatest trust between man and man is the trust of giving counsel.” [Essay: Of Counsel] In negotiations, he preferred to use a mediator.

In 1573, Bacon went up to Trinity College, Cambridge. At that time, Cambridge was dominated by the thought of Aristotle, regarded as the last word in knowledge: the charter of Trinity forbade the teaching of anything else. Bacon was the first English-speaking person to launch a systematic attack on the Aristotelians. His work “The New Organum” was published in 1620 and went through many editions. It successfully challenged Aristotle’s closed world-view based in deductive reasoning, in favor of inductive and empirical methods.

In 1661, a young man went up to Bacon’s old college, Trinity, by the name of Isaac Newton. He found a very different intellectual climate than that so systematically assaulted by Bacon forty years earlier. Trinity had opened its gates to the Cartesians and the Aristotelians were in retreat. It is interesting to speculate how the history of science might have been altered if Newton, always attracted to metaphysics and alchemy, had entered a Trinity College still trapped in the closed world of Aristotle. A large part of the credit for the change in intellectual climate must go to Bacon. The influence of Bacon on English thought during the intellectually-tumultuous years of the Restoration of Charles II may be gauged from the following: in 1665, Newton published his ground-breaking work on “Opticks” (sic) in the very first publication of the proceedings of the newly chartered Royal Society – the frontispiece of that publication carried three pen-and-ink portraits – the King, the President (now forgotten) of the Royal Society, and the long-dead Francis Bacon. He formed the intellectual bridge between the mediaeval and modern worlds.

His career as a lawyer ended in disgrace, broken on charges (admitted) of corruption. Bacon was never much of a private lawyer; his interest lay in preferment under the Crown. Ignored by Elizabeth I, his career took a turn for the better when James I ascended the throne in 1603. Bacon was then 42 years old. He was knighted, appointed successively solicitor-general, attorney-general, and finally, in 1621, lord chancellor. Dismissed from that office, fined the huge sum of L40,000, imprisoned briefly in the Tower of London, he went on to publish his most influential works, writing: “If I be left to myself I will graze and bear natural philosophy.” He died in 1626 of a sudden chill after stuffing a dead chicken with snow to determine whether that would delay putrefaction.

He was outlived by eight years by his formidable rival, Sir Edward Coke, pronounced “cook” (1552-1634). Coke had also served as solicitor-general, attorney-general, then Chief Justice of Common Pleas, finally Chief Justice of King’s Bench, before his dismissal by James I. Coke then entered Parliament, and played a large part in the passage of the Petition of Right (1628), which forms an important link between Magna Carta (1215), the Habeas Corpus Act (1679), to the Declaration of Independence (1776). Coke told the Commons: “Let us put up a Petition of Right. Not that I distrust the King, but that I cannot take his trust but in a parliamentary way.”

Bacon and Coke were prolific writers, the one progressive and visionary, the other staunchly rooted in the past. Bacon defended the royal prerogative, Coke the common law. Coke prevailed; the next twenty years was to witness the triumph of Parliament and the public execution of the monarch.

Coke’s learning was steeped in the 400-year old tradition of the common law. During his lifetime, he personally collected and compiled over 600 legal decisions, which he reported with commentary in Coke’s “Reports.” He also wrote a 4-volume treatise on the common law entitled “The Institutes.” The influence of these works cannot be exaggerated; without them the unwieldy, complex, encrusted, uncodified mass of law that was the common law might have foundered under its own weight. Bacon might have favored this result; he was in favor of a legal system based on general principles and codification.

Coke’s Institutes and Reports saved the common law from itself, and permitted its transportation as a coherent entity from the old country to the new world. Even Bacon admitted it: “Had it not been for Sir Edward Coke’s Reports…the law by this time had been almost like a ship without ballast.” The first and most influential volume of the Institutes was Coke’s Commentary on the earlier work of Chief Justice Littleton, known as “Coke on Littleton,” a treatise on property rights. The Second Institute is a detailed commentary on Magna Carta (1215) and 38 other charters and statutes – “Magna Carta,” said Coke, “is such a fellow that he will have no sovereign.”

Coke’s First and Second Institutes are in the earliest catalogue of the Harvard College library (1723), and many of the lawyers among the founding fathers and the next generation studied and struggled with Coke on Littleton:

Daniel Webster wrote he could never understand a quarter of Coke-Littleton: “No boy of twenty could understand Coke,” the study of which caused him “to despair and almost to give up law for school teaching.”

John Adams confided to his diary: “Wood’s Institutes of Common Law and My Lord Coke’s Commentary on Littleton I never read but once. These two authors I must get and read over and over again. And I will get them and break through all obstructions. ”

Patrick Henry was admitted to the bar after six weeks’ study of nothing but Coke-Littleton and the Virginia Statutes. His license was signed by the Randolph brothers, who stated that Henry was “very ignorant of the law,” but had genius and “would soon qualify himself.”

Mr. Justice Story of Massachusetts tried “day after day” to read Coke-Littleton, then “set himself down and wept bitterly…” but “went on and on, and began at last to see daylight…when I had completed the reading of this formidable work, I felt that I breathed a purer air and that I had acquired a new power.”

Thomas Jefferson: “Coke Littleton was the universal elementary book of law students and a sounder Whig never wrote nor profounder learning in the orthodox doctrines of British liberties.”

John Rutledge of South Carolina: “Coke’s Institutes seem to almost the foundation of our law.”

John Quincy Adams struggled valiantly with the “folio of Lord Coke which has been hanging heavily upon me these ten weeks.”

In one critical respect, the arch-conservative Coke was more progressive than Bacon. While Bacon favored and defended the royal prerogative (which didn’t save him from disgrace), Coke attacked the prerogative, flatly denying that it had the force of law. He wrote: “The law of England is divided into three parts: common law, statute law, and custom, but the King ’s proclamation in none of them.”

More dramatic (and foreshadowing Chief Justice John Marshall by more than 200 years), in Bonham’s case (1610) Coke went so far as to challenge the supremacy of an Act of Parliament: “When an act of Parliament is against common law, right and reason, the common law will control it and adjudge such Act to be void.” Coke’s assertion of the supremacy of common law judges over all other authority whatsoever did not stand the test of time. Compare John Marshall’s less sweeping but more successful claim, that the constitution is the highest law and the Supreme Court the final arbiter of its meaning.

So one has a curious paradox: the thirteen colonies started a revolution and created a new nation, but the founding fathers remained content with a legal system having its origins in the reign of Henry II (1152-1189). The common law system, only found in English-speaking countries, is quite different from its great rival, the civil law system found in most European countries. If one walks into a French court today, one might be surprised to see the prosecutor sitting on the bench with the judges, the judges doing most of the questioning, the role of the defense lawyer largely confined to his final, highly emotional oration (“plaidoirie”). Walking into a French attorney’s office, one can hardly fail to notice the absence of shelves lined with books, no law reports, just a few slim red paperback volumes setting out the codes (but far, far shorter than the California codes). Yet if you were to walk into the Court of Common Pleas in Westminster Hall in the year 1625, you might feel quite at home. Apart from the wigs and gowns, it would seem familiar.

There is something to be said for a legal system so adaptable that it can survive 800 years, transport itself thousands of miles to different parts of the globe, and retain its relevance into the 21st century. In this, Edward Coke remains the pivotal figure, whose life work was to make the common law accessible to future generations. Bacon may have influenced the possibility of a Newton, but as far as the development of the law is concerned, Coke trumped Bacon. Yet today, few people study Coke, while philosophy students still read Bacon; their rivalry endures.

And it was Bacon, a consummately subtle negotiator, who expressly approved of the practice of using a mediator in the conduct of negotiations, writing: “It is generally better to deal by speech than by letter, and by the mediation of a third than by a man’s self….In all negotiations of difficulty, a man may not look to sow and reap at once, but must prepare business, and so ripen by degrees.” [Essay: Of Negotiation]

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