followed, and much against his will Coke was made chief justice of the king's bench. 'He parted dolefully,' says Chamberlain, 'from the common pleas, not only weeping himself, but followed with the tears of all that bench, and most of the officers of that court' (S. P. Dom. lxxiv. 89). Ben Jonson, in an epigram written about this date, pays an eloquent tribute to his character as a judge, and such evidence as we possess confirms the praise of his integrity and public spirit (Underwoods, lxv.) Meeting Bacon soon after, Coke accosted him, very much as Lord Campbell did Bethell on a similar occasion : 'Mr. Attorney ! this is all your doing ; it is you that have made this great stir.' 'Ah, my lord,' replied Bacon, 'your lordship all this while hath grown in breadth ; you must needs grow in height, else you will prove a monster' (Gardiner, ii. 209, from Bacon's Apophthegms). So little weight, however, did the king attach to Bacon's first reason, that ten days later Coke was made a privy councillor. Had he become obsequious, or even conciliatory, he would certainly have risen still higher ; but he remained as rigid as ever, and he was soon in trouble. His attitude on the subject of benevolences might seem to show a more yielding disposition ; but in his opinion, given in the Star-chamber, he was careful to insist that a benevolence was legal, not as a compulsory tax, but as a free-will offering (2 St. Tr. 904 ; 12 Rep. 119. A note dated 8 Nov. 1614, in Coke's handwriting, on the precedents of benevolences, contains additional references, Lansd. MS. 160, fol. 118). As his own contribution he gave 200l.
In Peacham's case [see Bacon, Francis] he made an unsuccessful attempt to check the practice of consulting the judges extrajudicially, and his conduct in the matter has been censured as obstructive. He had certainly to retreat from his first position, 'that such auricular taking of opinions was not according to the custom of the realm,' qualifying it afterwards by saying that ' this auricular taking of opinions, single and apart, was new and dangerous ; 'and by agreeing' at last to give an opinion he admitted that in strictness his objection could not be sustained. But in substance he was right. The practice against which he argued was not new. Ideas, in Coke's time imdeveloped, of the necessity of keeping distinct the judicial function of government, have confirmed his opinion that the practice is dangerous. In objecting, moreover, to advise on the case without consulting his fellow-judges, he was making no claim that the judges should be treated as one whole body or class ; he was making a natural protest against a compulsory separation of himself from the others, in which he saw a clear attempt to force them to give an opinion favourable to the prosecution. That was undoubtedly the king's intention, and the device which he adopted is the strongest evidence of the great influence possessed by Coke (see Spedding, v. 114; and Gardiner, ii. 279. Hallam's statement, Const. Hist. ch. vi., that the other three judges were 'tampered with,' is far too strong).
A more serious conflict arose with regard to the jurisdiction of the court of chancery. In 1615 the king had remonstrated with Coke and the chancellor about the disgraceful disputes which took place on the subject, bidding them be moderate and refer all difficult cases to himself (S. P. D. lxxxviii. 381). But the remonstrance had no effect, and in the following year two glaring cases brought matters to a crisis. The court of chancery granted equitable relief against two judgments obtained in the king's bench by some very sharp practice. Coke and the other judges sitting with him held in both cases that the interference was illegal (Heath v. Rydley, Cro. Jac. 335 ; Courtney v. Glanvil, Cro. Jac. 343). Soon after two indictments of præmunire were brought against the parties to the suits in chancery, their counsel, &c., and a suspicion seems to have been entertained that this step was taken with Coke's sanction, if not at his instigation. But in spite of remonstrances from the presiding judge, the grand jury refused to find a true bill, and, on a reference to the law officers on the general question of equity jurisdiction, the court of chancery was held to be within its rights. That Coke, even off the bench, had something to do with this attempt to test the chancellor's powers is very likely, though there is hardly any direct evidence to prove it. At any rate he was considered by the king and by Bacon to have again taken up a hostile position, and to have shown his determination on all occasions to claim for the common law judges an absolute and dangerous independence. According to Blackstone, Coke was clearly in the wrong (iii. 54). This does not merely mean, as Hallam suggests, that the contrary opinion has prevailed, for the right of the chancery to interfere by injunction had been long established. Yet we cannot judge Coke's conduct without considering that in his day the powers of the chancellor were not clearly defined, and were therefore open to great abuse (Spedding, v. 252, 371, 380; Gardiner, iii. 11. Campbell, Chancellors, 4th ed. ii. 363, evidently takes his story from Kennet, ii. 704, but tells it inaccurately and makes bold additions. See also Rep. in Chancery, where the controversy
