Oil and Gas Lawyer Blog
I have been reading a biography of Roger Williams, the founder of Rhode Island, by John M. Barry: Roger Williams and the Creation of the American Soul – Church, State, and the Birth of Liberty.
Williams was born in 1603 and as a young man became a friend and assistant to Lord Edward Coke, who at the time was sixty years of age. Coke is known by lawyers as a pillar of the development of the common law in England. Williams greatly admired Coke and was heavily influenced by him. Coke sometimes called Williams his son, and after Coke’s death Williams referred to him as his “much honored friend, that man of honor, and wisdom, and piety.”
Roger Williams immigrated to Massachusetts Colony in 1631. He was minister in Salem, but his theological differences with the Pilgrim fathers resulted in his expulsion from the colony in 1636. He went to what is now Rhode Island and founded the Providence Plantation. He believed that government should not meddle in matters of the church—that a “wall of separation” should be erected between them–a principle which became embodied in the Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Because Coke was such a large influence in Roger Williams’ life, Barry devotes a part of his Williams biography to Coke. A confrontation between Coke and King James I, told by Barry, reminded me of present events and inspired me to write this post.
Coke was a politician, courtier and jurist in the courts of Queen Elizabeth and James I who held several prominent positions and rose to significant power. Born in 1552, he served as Speaker of the House of Commons, Solicitor General, and Attorney General under Elizabeth, and Chief Justice of the Court of Common Pleas and Justice on the Court of King’s Bench under James I. He is known to all law students as the judge who decided Shelly’s Case, establishing the common-law “rule in Shelly’s case” that all law students were expected to know.
James I ascended to the English throne after being James VI of Scotland. from the reign of Henry VIII who established the English church separate from Rome, the English monarch was also head of the Church of England. Despite the limits on monarchial authority imposed by the Magna Carta in 1215, King James considered his power to be absolute, both over the Church and his subjects – including judges. James’ views eventually brought him into conflict with Coke, the champion of the common law.
Common law, also known as judicial precedent, is the body of law primarily developed through judicial decisions rather than statutes. The basis for common law originated in the practices of the courts in England following the Norman Conquest in 1066. Judicial precedent was intended to create a unified legal system supplanting local courts. Great Britain’s “constitution” is unwritten and is based on principles of law established by decisions in British courts. Coke is famous for his Institutes of the Lawes of England, a series of legal treatises published between 1628 and 1644. Coke’s Institutes has been cited in more than seventy cases by the US Supreme Court, including Roe v. Wade. The common-law system was adopted by the American colonies and helped shape the US legal system.
While Coke was on the Court of King’s Bench, an Oxford scholar wrote that the King is “above he law by his absolute power … And though at his coronation he take an oath not to alter the laws of the land, yet his oath notwithstanding, he may alter or suspend any particular law that seemeth hurtful to the publick estate.” Sir Thomas Egerton, the lord chancellor, agreed: “The monarch is the law. Rex est lex loquens, the king is the law speaking.” King James agreed; he affirmed that he was “the supreme judge; inferior judges [are] his shadows and ministers … and the King May, if he please, sit and judge in Westminster Hall in any court there, and call theire Judgments I question. … The King being the author of the Lawe is the interpreter of the Lawe.”
Eight days later the King summoned all the judges of the common law courts and the King’s Bench, along with several great lords—and Coke. A debate ensued between the King and Coke.
Richard Bancroft, Archbishop of Canterbury, presented the issue by stating that Scripture gave the King power to decide any judicial proceeding. James interjected that the law “was founded upon reason, and he and others had reason, as well as the judges.”
Coke acknowledged that, indeed, “God had endowed his Majesty with excellent Science, and great endowments of nature.” But:
his Majesty was not learned in the Lawes of his Realm of England … and judgments of Law … requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the Golden metwand [yardstick] and measure to try the Causes of the Subjects, and which protected his Majesty in safety and peace.
In other words, cases are decided by judges, not by kings. The law is supreme.
James, irritated, promised to “ever protect the common law.” Coke replied: “The common law protecteth the king.”
At this point the King became angry and insisted that the King “protecteth the Law, and not the Law the King!” Coke did not back down: “Quod Rex non debet esse sub homine, sed sub Deo et Lege”—the King should not be under man, but under God and the Laws. According to Coke, “Reason is the life of the law; nay, the common law itself is … perfection of reason.” “The King cannot change any part of Common Law, not create any Offence by his proclamation, which was not an Offence before.”
Coke’s disputes with James continued for some time, but eventually he was removed from all official posts. He died in 1634.
I was reminded of my reading about Lord Coke when I heard Judge John C. Coughenour’s statement, read from the bench last Thursday February 6, when he issued an injunction against President Trump’s executive order revoking birthright citizenship for the children of undocumented immigrants, in State of Washington et al. v. Donald J. Trump et al.:
It has become ever more apparent that, to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain. Nevertheless, in this courtroom, and under my watch, the rule of law is a bright beacon which I intend to follow. I said this two weeks ago and I’ll say it again today: there are moments in the world’s history when people look back and ask where were the lawyers? Where were the judges? In these moments the law becomes especially vulnerable. I refuse to let that beacon go dark today. As a judge my job is not only to uphold the law but to protect the rule of law itself.
Birthright citizenship is a fundamental constitutional right. The 14th Amendment secures the blessings of liberty to our posterity by bestowing on all those born in the United States and subject to its jurisdiction the right of citizenship. We are all citizens subject to the rule of law. No amount of policy debate can change that. And the fact that the Government has cloaked what is effectively a constitutional amendment under the guise of an executive order is equally unconstitutional. The Constitution is not something with which the Government may play policy games. If the Government wants change the exceptional American grant of birthright citizenship it has to change the Constitution itself. That’s how our Constitution works and that’s how the rule of law works. Because the President’s order attempts to circumscribe this process it is clearly unconstitutional. The preliminary injunction is granted on a nationwide basis.