The Errors of Sir Edward Coke.—In a historical treatise it is not necessary fully to analyse causes. Facts must be left to speak for themselves. It is a patent fact that, early in the seventeenth century, men’s views regarding women became much altered, and the liberties of women thereby curtailed. But there is generally one voice that in expressing seems to lead the opinion of an age. The accepted voice of this period, on this subject, was not that of the “learned Selden” [[vi].], but of the “legal Coke.” He first pronounced an opinion on the disability of women, and, as every other so-called authority depends upon his, it is necessary to examine the grounds of his opinion first, as with him all his followers must stand or fall.
When he was speaking against the Procuratores Cleri having a voice in Parliament, it was urged on him that it was unjust that persons should have to be bound by laws which they had had no voice in making. To this he replied, “In many cases multitudes are bound by Acts of Parliament which are not parties to the elections of knights, citizens or burgesses, as all they that have no freehold, or have freehold in ancient demesne; and all women having freehold or no freehold, and men within the age of one and twenty years” (“Fourth Institute,” 5). He quotes no record, he suggests no authority, he adduces no precedent. He could not. Yet from this one obiter dictum of his, uttered in the heat of his discussion against clergymen, recorded in loose notes, and published without correction after his death, has arisen all consequent opinion, custom and law against the Woman’s Franchise. So terrible can be the consequences of the by-utterances of a Judge when careless, prejudiced, or wilfully ignorant. That Coke could be all three it is easy to prove.
(1) In Prynne’s “Introduction to the Animadversions on the Fourth Part of the Lawe of England,” he says, “My ardent desires and studious endeavours to benefit the present age and posterity to my power by advancing learning ... by discovering sundry misquotations, mistakes of records in our printed law books reports, especially in the Institute of that eminent pillar of the Common Law, Sir Edward Coke, published, with some disadvantage to him and his readers since his death, whose quotations (through too much credulity and supineness) are generally received, relied on, by a mere implicit faith, as infallible Oracles, without the least examination of their originals.”
Male credulity in regard to Coke has been the cause of so much direct and indirect suffering to women that it is not surprising that they now attempt to get behind “the Oracle,” and question the Spirit itself of the English Constitution. Many other writers besides Prynne refer to Coke’s want of care. “In 1615 the King told him to take into consideration and review his Book of Reports; wherein, as His Majesty is informed, be many extravagant and exorbitant opinions set down and published for positive and good law.” (Chalmers’ Biog. Dict.) “The Institutes published in his lifetime were very incorrect. The 4th part not being published till after his death, there are many and greater inaccuracies in it.” One example in the contested passage may be noted. He says that those who had no freehold had no vote. He did not die until 1634, and the notes for the “Fourth Institute” were the last work of his life. But Granville’s “Reports” prove that by the Parliaments of 1621 and 1628 the Franchise was declared to be vested in inhabitant householders whether freeholders or not, so he was incorrect as to that statement at least.
(2) That, through prejudice, he could be blinded to Justice can be seen in that picture preserved by his Biographers of his hounding Sir Walter Raleigh to his death by virulent unjudicial denunciations; or in that other when he and his followers made a riot with swords and staves in seizing his daughter from the home in which his wife (formerly Lady Hatton) had placed her. The King’s Council severely reprimanded him for his illegal action then. (See “The Letter of the Council to Sir Thomas Lake regarding the Proceedings of Sir Edward Coke at Oatlands,” “Camden Miscell.,” vol. v.)
The petition of Sir Francis Michell to the House of Commons, 23rd February, 1620, contains trenchant criticisms on Coke’s conduct as partial and passionate. Though they may be somewhat discounted by the writer’s position, they must have had some basis of truth. Michell said that when summoned before the Bar, Sir Edward Coke prejudiced his cause by saying aloud, “When I was Chief-Justice, I knew Sir Francis Michell; he is a tainted man,” which saying discouraged his friends from speaking on his behalf. He repeats elsewhere that Coke was wont “to make invectives by the hourglass”; and indeed adds many other more serious charges. Michell was put out, as was the custom, when his case was being discussed. In his absence, he was condemned to go to the Tower, and on being re-admitted, thought he was to be allowed to defend himself as was the custom, and “asked leave to speak for himself, which Sir Edward Coke hastened to refuse” (Sir Simon d’Ewes’ Papers, Harl. MSS., 158, f. 224). “His rancour, descending to Brutality was infamous” (Dict. Nat. Biog.). Sir Francis Bacon writes to him, “As your pleadings were wont to insult our misery and inveigh literally against the person, so are you still careless in this point to praise or dispraise upon slight grounds and that suddenly, so that your reproofs or commendations are for the most part neglected and contemned, when the censure of a Judge coming slow but sure should be a brand to the guilty and a crown to the virtuous.... You make the laws too much lean to your opinion, whereby you show yourself to be a legal tyrant” (Foss’s “Lives of the Judges”). James I. is known to have called him “the fittest engine for a tyrant ever was in England.”
He was an only son with seven sisters, which position probably made him overvalue his own sex. His well-known matrimonial disputes probably helped to increase his prejudice against the other sex.
(3) That he could be wilfully ignorant there is abundant ground to believe. He married again five months after his first wife’s death, without Banns or Licence, and to escape Excommunication, he pleaded Ignorance of the Law!! “Not only does he interpolate, but he is often inaccurate; sometimes, as in Gage’s case, he gives a wrong account of the decision, and still more often the authorities he cites do not bear out his propositions of law. This is a fault common to his Reports and his Institutes alike, and it has had very serious consequences upon English Law” (Dict. Nat. Biog.). Holt v. Lyle, and Catherine v. Surrey had been decided when he was Attorney-General. These affirmed that “a feme sole could vote for a Parliament man.” The Gatton case had been decided in a Parliament, and by a Committee of which he was a member; and whether he had concurred in it or not, he cannot but have been aware that other members of Parliament, even in his day, allowed the woman’s privilege.
Others have accused him of suppressing and falsifying legal documents. (See Chisholm Anstey’s “Supposed Constitutional Restraints.”) Chief Justice Best from the Bench said, “I am afraid that we should get rid of a good deal of what is considered law in Westminster Hall if what Lord Coke says without authority is not law.” 2 Bing, 296.
One other case which afterwards told heavily upon women we may note. “Coke artfully inserted in the marriage settlement of his fourth son John, with the daughter and heiress of Anthony Wheatley, a clause of reversion to his own heirs to the exclusion of heirs female, which was not discovered until 1671, when John having died, leaving seven daughters, their mother’s paternal inheritance passed away from them to their uncle Robert, Coke’s fifth son.”