It is the third in a series of lectures, the first being 'Lions in conflict: Ellesmere, Bacon and Coke - the years of Elizabeth' in (2007) 28 Australian Bar Review 254 and 'Lions in conflict: Ellesmere, Bacon and Coke - treason and unity' in (2008) 30 Australian Bar Review 144.
When Sir Edward Coke was appointed Chief Justice of the Court of Common Pleas in 1606, he was the first of a century who had never appeared as an advocate in that court. Such appearances were restricted to the handful of senior counsel called sergeants-at-law - the QCs of the day. Coke had only been coifed as a serjeant the day before his elevation. The coif was a white silk cap work in court, which Coke once called the helmet of Minerva, traditionally the goddess of wisdom, whom he called, revealingly the goddess of counsel.
Coke brought to his new task the full force of his considerable intellect. His encyclopaedic knowledge and his output were prodigious. The Latin inscription on his tombstone correctly describes him as having been a 'living library'. However, his mind was so narrow and unsubtle, so incapable of jettisoning detail, so often inconsistent, that no one has ever speculated that he wrote the works of Shakespeare. Macaulay described him as a:
pedant, bigot and brute [but] ... an exception to the maxim ... that those who trample on the helpless are disposed to cringe to the powerful. …
Coke’s aggressive pursuit of the institutional interests of his new Court became as fervid as his advocacy of the interests of the King had been prior to his appointment. His transmogrification was as passionate and as complete as that of Thomas Becket’s transition from Henry II’s Chancellor to the office of Archbishop of Canterbury, a matter with which I have already dealt. As a regrettably anonymous pundit once put it: “Where you stand depends on where you sit”.Spigelman notes that
His motives were mixed. In Isaiah Berlin’s dichotomy, he was a hedgehog not a fox, with his one big idea being the ancient origins of the common law – a fable to which I will return in the next lecture. There is no doubt he genuinely believed in the conviction of the common law profession, led by the judges, of the continuity and centrality of the common law. Indeed, he did more than anyone else to perpetuate that intellectual tradition.
Further, like any new leader of an organization, his capacity for leadership and his own power in the community depended on acceptance of an institutional imperative to protect and expand his organisation’s dominion. It was more than simply convenient that aggressively pursuing these institutional interests also served his financial interests and that of the judges of his Court and of the profession that practiced before them. The judges kept the fees of providing “justice” which, at the time, was an exceptionally lucrative service industry. Adam Smith himself, in The Wealth of Nations explained how competition between the common law courts, driven by financial incentives, was the principal explanation of the high quality of the common law system. Others have shown how this competition operated by developing practices and substantive principles in such a way as to favour plaintiffs, who decided which court would hear the case.
Throughout their careers, each of Ellesmere, Bacon and Coke, were careful to develop their wealth, Bacon least successfully. Perhaps for that reason, he alone articulated the limits of this pursuit. He explained, in his essay “Of Riches”:
As the baggage is to an army, so is riches to virtue. It cannot be spared or left behind, but it hinders the march and the care of it sometimes loses or disturbs the victory. Of great riches there is no real use, except it be in the distribution, the rest is but conceit.