I recently had occasion to go over the report of Bebb v. Law Society  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.
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.