Who was the Better Lawyer and/or Jurist: Coke or Bacon?

Gerald Roger Clough

ENGLISH /SCOTTISH LEGAL HISTORY

Francis Bacon's corruptions cannot be countenanced; his philosophical/scientific empiricist theories can never be underestimated. Lord Coke's viciousness and love of money can

certainly appear revolting to a early 21 st century mind (and reminds that mind of why we have a

Plymouth Rock); but his idea that the judiciary stands on its own as more than serving as the

sovereign's rubber stamp of approval is an obvious mixture of chutzpah and genius. So,

which one's the better lawyer? At their respective worsts , both of them sound like whacko,

greed infected jurists from a Bob Dylan song. At their bests, history appears to show them

both as men ahead of their time.

Sometimes it appears that if either pne of them had a way of knowing that he would

live on through history as the greater jurist, I've got a feeling that each would have behaved a

bit differently.

According to Maitland, Coke's theory of rule was that of "law" as sovereign. That is,

we look to law to lead. To Maitland, it appears that Coke placed common or judge made law

above all other forms of the law. Contrasting Coke's theory that places judges very high on

the ruling hierarchy is Bacon's. In Bacon's view, it appears to me that his main concern was

that the court acts in basically a rubber stamp fashion. That is, the court acts as a body to

approve the sovereign's policies. That of course is diametrically opposed to Coke's view (now

taken to be obsolete Maitland tells us) that judges were permitted to declare with binding force

that statutes were void because they were against reason, natural law or because they

entrenched on the royal prerogative.

While it is probably generally accepted today that Coke's desire for a monolith like

power the courts does not comport with our post-revolution ideas as to checks and balances, Bacon's stamp of approval court certainly did not follow us across the Atlantic. In

fact , if one looks to U.S. Supreme Court activity in the last 50 years or so (most obviously

may be Roe v. Wade and Brown v. Board) we see some evidence that, if necessary, the Supreme Court will assume an almost monolithic role in laying down the law of the land. The

discussion as to how strong our modern highest court is may have occurred in the mid 70s when Nixo ~ got himself into some serious political trouble and did not want to turn over audio

tapes that recorded career damaging conversations in the Oval Office. To make a long story

short , the Supreme Court eventually ruler that the laws regarding the production of this sort of

evidence applied to the President of the United States. This is important to our discussion

because I've got the feeling that had the Court been constructed in a Baconian view, the Court

likely would have ruled that Nixon was indeed above the law. Andrew Jackson's famous

quote regarding the Supreme Court's lack of firepower serves to remind me as to its relatively

precarious position in the United States' governmental scheme. It appears to me that Bacon's

court would be superfluous.

Coke's vicious prosecutions for treason have generally brought historical scorn upon

him . This trait can probably be defended, however, given the times and crime. As

puts it in

while making an apology for Bacon's act of prosecuting his possibly

mentally ill friend for treason, one has to remember the personal security involved in politics

in during this period. This personal security aspect was of course no small matter for Coke

and his large immediate family. It's not too difficult for me to empathize with Coke's

certainly conceivable at least that it could take a measurable length of time and an industrial

revolution to enable the technology or hardware to catch up with Bacon. As to Bacon's

possible lasting influence of the scientific expert opinion, I don't think anyone living outside a

Falwellian world would seriously consider throwing science out of the courtroom in favor of a

community knowledge standard.

Maybe in !rder to understand Bacon's contributions in this area, I should note that Coke contributed nothing considerable to any field outside that of law. Outside of biology, in

fact , it looks like Coke was interested in little else outside of law. Bacon opened the

courthouse doors to science; his new scientific model gave the learned non lawyer a chance to

shape the law in his or her respective field according to (usually) modern, reasonable, and

generally accepted notions of science. This is a huge accomplishment and then he blows all

chances at being named jurist of the millennium by a series of corrupt actions that go straight

to the heart of the judiciary's integrity. Bacon's corrupt actions leave him in Coke's regarding

worth as a jurist.

The sovereign stamp of approval court was a bad enough idea, the corruptions do him

in for 2 reasons: 1) he took money and; 2) he threw in the towel feebly. Because of his

perennial money woes, Bacon has a mitigating circumstance running in his historic favor; for

instance , had a man with Coke's money loving personality been convicted of bribery, it would

have been deadly to his historic standing. It is possible to view Bacon's sin as one of

weakness opposed to a sin of will. Because of Bacon's guilty plea, there area lot of questions

as to what he exactly did; no matter, he smells like a rat in this instance. At its worst, the

Bacon's sham sovereign loving court where justice can be bought behind the bench is obvious

fuel for revolution.

Most historians addressing Bacon's early surrender have hinted that it was his legal

acumen that enabled him to recognize the hopelessness of his situation. Methinks he figured

that he had petter things to do than continue his failing quest for political power through the

courtroom .

Like Bacon, Coke's courtroom career ended in at least semi-disgrace and expulsion.

Unlike Bacon, however, Coke fought his ouster in a way that a modern lawyer should

appreciate . In his desperate attempt to protect himself and the sovereignty of his court, Coke

dug deep into ancient laws in futile but admirable attempt to stave off impeachment. Futilely

searching for a piece of law that might enable him to hang onto his precious judgeship, Coke

appears to have fought a hell of a fight on the way out. The Bacon supporter of course has an

argument that Coke had more incentive than Bacon to hold onto his position. The law was

really all Coke had professionally and it's likely that by this point he may have been

completely disillusioned by romantic love. Coke certainly protected the integrity of at least his

court in a manner that I admire.

Most historians addressing Bacon I s early surrender have hinted that it was his legal

acumen that enabled him to recognize the hopelessness of his situation. Methinks he figured

that he had Better things to do than continue his failing quest for political power through the

courtroom .

Like Bacon, Coke' s courtroom career ended in at least semi-disgrace and expulsion.