By Jeffrey D. Vowles
Sir Edward Coke, sacked chief justice
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“God has endowed His Majesty with excellent science and great endowments of nature, but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods or fortunes of his subjects are not to be decided by natural reason, but by artificial reason and judgement of law. . .” Prohibitions del Roy, 1607.
Never before and perhaps never since has the freedom from religion been so succinctly defined as by the great English Chief Justice who lived from 1552 until 1634. “Artificial reason and judgement of law” was at the time, and remains, a standing challenge to the commandment of religion and its alleged natural order.
Lord Coke is particularly remembered by Americans as the father of judicial review, that unique power exercised by life-tenured judges to thwart the will of the electorate by upholding the rights of unpopular individuals and minorities guaranteed by the constitution. Eminent British jurists like the late Lord Denning would cast envious glances across the Atlantic and talk of Coke’s sapling “withering and dying in England but growing to a strong tree in America.”
However, in the opposition between “artificial reason” and “natural law” there is much more at stake than a turf war between elected legislators and appointed judges. What Sir Edward was upholding, in the face of pressure from the Crown and later Parliament, was the consequence of a unique accident of history. Soon after its demise, the Roman Republic was looked back upon as almost a golden age of liberty and justice. Basic republican freedoms such as the right to marry (jus connubi) were not to be rediscovered, even in the United States, until 2500 years later. The California Supreme Court, shamed after two world wars for sending “the flower of our manhood” to defend a freedom unable to be applied within our own borders, threw out anti-miscegenation statutes and overturned 150 years of American stare decisis–judicial precedent replete with invocations of the state’s duty to protect against “mongrelization of the races” Perez v. Lippold 198 P 2nd 17, 1948.
The accident of history enabling Sir Edward to champion judicial review and the supremacy of law over electoral politics was the survival of the Saxon folkright in England at the time of the Norman invasion.
Long before the battle of Hastings, all other law books in the Roman world had been conformed to Judaic-Christianity by the Emperor Justinian. By the end of the sixth century, all republican maxims of justice had been expunged by the Emperors’ prelates using a handbook entitled Lex Dei quam praecipit Dominus ad Moysen.
In 1066, William of Normandy confirmed the excepted Saxon code of conduct, which then became known as common law, and additionally promised that no Englishman would be forced to serve in the feudal army. This pledge not only evolved into a ban on conscription that lasted until 1916, but also provided a basis for the constitutional position that a soldier is only an ordinary citizen armed in a particular manner.
Perhaps understandably, Anglo-American lawyers are reluctant to expand on the pagan origin of common law. For generations, clergy have referred to the faith of the founding fathers and the alleged roots of American justice in the Judeo-Christian ethic. When poll after poll show that the vast majority of the population is still afraid to go public with disbelief of such key tenets of faith as the election of Israel or the virgin birth of Jesus, why should anyone expect lawyers to stick their necks out?
Even tenured professors resort to euphemisms such as “Germanic” when referring to the origins of common law. (See Fritz Pringsheim, The Inner Relationship Between English & Roman Law, The Cambridge Law Journal, Volume V, 1935.) Two hundred years after the founding of the American republic, it has devolved upon a French jurist–after attending Harvard Law School–to reveal the secular basis for American jurisprudence and to describe the U.S. Constitution in opposition to the rules prevailing on the European continent as “law without the State.” (Laurent Cohen-Tanugi, Le droit sans l’Etat, Sur la dmocratie en France et en Amerique, P. U. F. 1985.)
What then happened to Lord Coke as a result of his bold defense of judicial review? Per order of the King in 1616, he was dismissed as Chief Justice. Sir Edward was no angel. He had made enemies in Parliament, but there was not even a murmur of protest at Temple Bar when the champion of common law went down to defeat. Henceforth, English judges were to enforce automatically the statutes of Westminster. Only a jury’s refusal to convict and the finality of that verdict remained as a vestige of Coke’s position. Since the Second World War and the convocation at Nuremberg by Supreme Court Justice Robert Jackson of “the first trial in history for crimes against the peace,” tribunals have been created in Europe exercising a form of judicial review. The Federal Constitutional Court in Karlsruhe, the European Court of Human Rights in Strasbourg, and the International Criminal Court in the Hague are prominent examples.
Remembering Lord Coke reminds unbelievers how much more there is to the separation of church and state than the tests used by the Supreme Court in application of the Establishment Clause.
The common law is a body of language and logic over 1,000 years old. This coherent and existential world view rejects all abstract entities and conceives human society as a web of private contracts–all in diametric opposition to the pyramid of authority, the hierarchical chain of command propounded by monotheists.
The history of France–with its two empires, five republics, 15 different constitutions and 200 years of conscription since the introduction of universal male suffrage in 1789–demonstrates the baleful effects of using the will of the electorate rather than the logic of common law as the measure of justice.
Events since Coke’s demise have only vindicated his refusal to compromise. In the pantheon of freethought heroes, alongside Robert Ingersoll and Clarence Darrow, there should indeed be a place for the sacked Chief Justice, Sir Edward Coke.
Jeffrey D. Vowles is a Foundation member from California.
