Category Archives: Coke

Coke fanboys and a cheer for F. Pollock!

I recently had occasion to go over the report of Bebb v. Law Society [1914] Ch. 286 (woman wants to be solicitor; not allowed to; takes legal action; loses, because obviously women can’t do such things – they should know their place), and, apart from its steam-from-ears-inducing unfairness,  it has some interesting material for those of us who are not fans of Sir Edward Coke (some might find the words ‘over-rated ruff-wearing misogynist’ spring to mind – I could not possibly comment).

On the depressing side, it is an example of just how ludicrously deferential judges of this period were to Coke: even when he was citing the dodgy Mirror of Justices. Cozens Hardy MR at 293, ‘[T]he opinion of Lord Coke on the question of what is or what  is not the common law is one which requires no sanction from anybody else …’ while Swinfen-Eady LJ, at 296 goes with ‘It is said the authority of the Mirror is impugned. But the authority of Lord Coke is not …’ and Phillimore LJ 298 ‘Lord Coke … is only a witness, no doubt, as to the common law, but he is a witness of the highest authority’. Creepy, craven stuff. Still, I suppose the deification of Coke meant there was no need to do proper Legal History research.

Pollock, editor of the Law Reports, however, had Coke’s number, noting in a footnote that his citation was incorrect and that there was some corrupt spelling (fn on  p. 292) and in a footnote on p. 295 that ‘Coke, according to his frequent habit, felt bound to support his living knowledge of  practice by citing an apocryphal authority’. Quite right too, F.P.

All of which has left me wondering:

(1)    When did the Coke-idolisation thing end’; and

(2)    What is the most Coke-worshipping statement in a law report? I will be looking out for this from now on.

Coke’s Marriage and Treatment of his Wife and Daughter

Those writing about Coke have generally given him a rather easy ride in relation to his treatment of his wife and daughter. It is hard not to find his ‘gold digging’ matrimonial conduct and his swift and secret second marriage anything other than discreditable and distasteful, but Baker’s introduction goes no further than saying that he ‘later had cause to regret’ i: Baker, Introduction to English Legal History, 4th edn 2002, 480t). No mention of the whole abduction of daughter to force her into obviously unsuitable marriage for his advancement in the favour of important people …

‘The second Mrs Coke’, a.k.a. Lady Elizabeth Hatton is subject to straightforward, and deeply gendered, insult elsewhere: being called a ‘harridan’ in Barnes and Boyer,  Shaping the Common Law from Glanvill to Hale 1188-1688 (Stanford CA, 2008) p. 120. The abduction of his daughter is mentioned here, at p. 127.  but there is not any real criticism and nothing on the lack of suitability of the groom.

Mephitic metaphor

I am not sure we really want the mental pictures conjured up by the idea of the common law as Coke’s ‘jealous mistress’ [A.D. Boyer,  Sir Edward Coke and the Elizabethan Age (Stanford UP 2003), 32. There are all sorts of dubious metaphors about the common law, or justice, as a woman, but does it need to be a ‘mistress’, with all that that imports, and does it need to assume that there is a recognisable, accepted idea of ‘the jealous mistress’. Just unnecessary.

 

 

 

 

 

Another triumph of legal science from Sir Edward Coke: the Great Lady and the Baboon

Despite his high reputation, there is a lot not to like about Coke (gold-digger, involvement in some very abusive trials and persecutions,  tendency to misrepresent and mis-cite medieval cases …). It is, therefore, always satisfying to be able to point out his grosser follies in the field of ‘legal fake news’. They don’t come much grosser than his much-quoted tale of the Great Lady and her sexual relationship with a baboon.

This comes in his discussion of buggery. [3 Co. Inst. 59] From buggery, he goes on to bestiality (grudging admission that this is justified by the statute he is discussing, which also does so), and this is illustrated by the story of the Great Lady who manages to become pregnant by a baboon. Coke places this some time before the passing of Henry VIII’s act against buggery  [25 Henry VIII]. Neither the lady nor the baboon is named, and it is not clear whether a human-baboon baby was supposed to have been produced. Obviously this is biological nonsense, and it looks as if Coke is caught out either making things up or not checking his plea rolls to confirm the facts. Nevertheless, it is quoted over and over again, without any doubt being cast upon the tale – such was his canonisation.  [E.g. in Anon., A Treatise of Femes Coverts or the Lady’s Law (London, 1732), 52; and there are examples at least into the 1820s].

If it is not absolute fabrication, the story might have its origin in some very unfortunate and misunderstood birth of a very disabled baby, given a back-story blaming the mother. We know such tales were told. If it is a fabrication, that fits in all too well with Coke’s striking, and sadly influential, misogyny, which damaged women’s chances of improving their legal position for centuries after his death: cases on areas including dower and the right to practise law frequently cited Coke to the disadvantage of women. And yet this was a man who alleged that a woman and a baboon could conceive a baby.

The anti-Coke backlash starts here!