The ancient constitution and the expanding empire: Sir Edward Coke's British jurisprudence

Law and History Review

Volumn 21, Issue 3, 2003, Pages 439-482

  Hulsebosch, Daniel J ^a  

^a Saint Louis University School of Law

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[No Author keywords available]

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EID: 33746279499     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/3595117     Document Type: Article

References (293)

1. J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (Cambridge: Cambridge University Press, 1987)
2. Robert C. Johnson et al., eds., Commons Debates, 1628, 6 vols. (New Haven:Yale University Press, 1977-83), 3:487
3. See, e. g., Polly Price, "Natural Law and Birthright Citizenship in Calvin's Case (1608)," Yale Journal of Law and the Humanities 9 (1997): 73-74 ("Calvin's Case determined that all persons bom within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King")
4. T. B. Howell, comp., A Complete Collection of State Trials, 34 vols. (London, 1816-28), 2:559
5. See, e. g., Barbara A. Black, "The Constitution of Empire: The Case for the Colonists," University of Pennsylvania Law Review 124 (1976): 1157, 1175-84
6. Charles H. McIlwain, The American Revolution: A Constitutional Interpretation (Ithaca: Cornell University Press, 1923)
7. See, e. g., James R. Stoner Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992), 61-62
8. Randolph G. Adams, Political Ideas of the American Revolution: Britannic-American Contribution to the Problem of Imperial Organization, 1765-1775 (Durham, N. C. : Trinity College Press. 1922). 141
9. John Phillip Reid. "Law and History," Loyola of Los Angeles Law Review 27 (1993): 193-223
10. Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston: Little, Brown 1956), . x
11. William Holdsworth, Some Makers of English Law (Cambridge: Cambridge University Press, 1938), 131
12. Edward S. Corwin, The "Higher Law" Background of American Constitutionalism (Ithaca: Cornell University Press, 1955), 56-57
13. Compare Samuel E. Thorne, "Dr. Bonham's Case," Law Quarterly Review 54 (1938): 543-52
14. J. W. Gough, Fundamental Law in English Constitutional History, corrected ed. (Oxford: Clarendon Press, 1961), 30-47
15. with Charles M. Gray, "Bonham's Case Reviewed," Proceedings of the American Philosophical Society 116 (1972): 35-58
16. T. F. T. Plucknett, "Bonham's Case and Judicial Review," Harvard Law Review 40 (1926-27): 30-70
17. See also Julius Goebel Jr., History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (New York: Macmillan, 1971), 92-94, 134, 140
18. Larry D. Kramer, "Foreword: We the Court," Harvard Law Review 114 (2001): 30-31
19. Compare Black, "The Case for the Colonists,"
20. and McIlwain, The American Revolution
21. with Robert L. Schuyler, Parliament and the British Empire: Some Constitutional Controversies Concerning Imperial Legislative Jurisdiction (New York: Columbia University Press, 1929), 1-39
22. Black, "The Case for the Colonists," 1175
23. See also Stoner, Common Law and Liberal Theory
24. See, e. g., Black, "The Case for the Colonists"; the sources cited in note 12, above
25. Stanley N. Katz, "The Problem of a Colonial Legal History," in Colonial British America: Essays in the New History of the Early Modern Era, ed. Jack P. Greene and J. R. Pole (Baltimore: Johns Hopkins University Press, 1984), 457-89
26. See Neil L. York, Neither Kingdom nor Nation: The Irish Quest for Constitutional Rights, 1698-1800 (Washington D. C. : Catholic University of America Press, 1994), 8-38
27. Liam S. O'Melinn, "The American Revolution and Constitutionalism in the Seventeenth-Century West Indies," Columbia Law Review 95 (1995): 104-59
28. I explore this mutual causation in Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, forthcoming)
29. For the gradual conceptualization of the overseas projects as an empire, see David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000)
30. Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), 63-104
31. William S. Holdsworth, A History of English Law, 17 vols. (London: Methuen, 1903-72), 5:456-90
32. See also Richard J. Ross, "The Commoning of the Common Law: The Renaissance Debate over the Meaning of Printing English Law, 1520-1640," University of Pennsylvania Law Review 146 (1998): 323-461
33. See also G. P. M., "Coke, Sir Edward," in The Dictionary of National Biography, vol. 4 (Oxford: Oxford University Press, 1917), 685-700
34. Holdsworth, History of English Law, 5:425-56
35. See, e. g., Francis Bacon, "An Expostulation to the Lord Chief Justice Coke," in The Works of Francis Bacon, Lord Chancellor of England, 3 vols. (Philadelphia, 1859), 2:485-88
36. T. F. T. Plucknett observed that, compared to previous reporters, Coke was "more concerned with the 'resolutions' of the judges,... their statements of general principle, making little distinction between those which were the basis of the decision and those which were only obiter. It might be possible to conclude that Coke was thinking (unconsciously perhaps) of the law in terms of substance rather than of procedure... . " Plucknett, "The Genesis of Coke's Reports," Cornell Law Quarterly 27 (1942): 212
37. Edward Coke, The Institutes of the Law of England, 4 vols. (London: W. Clarke, 1817). The first three volumes were published in 1628 and the last posthumously in 1642
38. Edward Coke, The Reports of Sir Edward Coke, ed. John H. Thomas and John F. Fraser, new ed., 13 parts in 6 vols. (London: J. Butterworth and Son, 1826)
39. On the development of reporting, see generally J. H. Baker, introduction to The Reports of Sir John Spelman, (London, 1978), 2:164-78
40. State Trials, 2:559
41. On the significance of "leading cases," see A. W. B. Simpson, Leading Cases in the Common Law (New York: Clarendon Press, 1995)
42. James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press, 1978),. 16-28
43. Price, "Natural Law and Birthright Citizenship in Calvin's Case. "
44. See Martyn P. Thompson, "The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution," American Historical Review 91 (1986): 1104-5
45. Pocock, Ancient Constitution
46. Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642 (University Park: Pennsylvania State University Press, 1992)
47. Coke, preface, to The Ninth Part of the Reports of Sir Edward Coke, ed. John Fraser (London, 1826), iv
48. See generally Gough, Fundamental Law in English Constitutional History. Pocock concedes that the word constitution "has not been systematically cleared of anachronism" as applied to Coke's age because few people used the word "constitution" in the modern sense before 1660
49. Pocock, Ancient Constitution, 261 n. 8
50. See also Gerald Stourzh, "Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century," in Conceptual Change and the Constitution, ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988), 35-54
51. J. C. Holt, "The Ancient Constitution in Medieval England," in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, ed. Ellis Sandoz (Columbia: University of Missouri, 1993), 22-56
52. An excellent study of Coke's parliamentary career is Stephen D. White, Sir Edward Coke and "The Grievances of the Commonwealth," 1621-1628 (Chapel Hill: University of North Carolina Press, 1979)
53. See Stoner, Common Law and Liberal Theory
54. J. C. D. Clark, The Language of Liberty, 1660-1832: Political Discourse and Social Dynamics in the Anglo-American World (Cambridge: Cambridge University Press, 1994)
55. See J. H. Baker, An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990), 14-62
56. Cf. O'Melinn, "Constitutionalism in the Seventeenth-Century West Indies," 112, n. 40 (noting that historian Barbara A. Black formulates "a theory of Coke's two bodies: the one recognizing the law as it existed, and the other - a constitutional body - seeing how the principles of law had to be extended to meet new circumstances")
57. See Bruce R. Galloway, The Union of Scotland and England, 1603-1608 (Edinburgh: J. Donald, 1986)
58. Brian P. Levack, The Formation of the British State: England, Scotland, and the Union, 1603-1707 (Oxford: Clarendon Press,1987)
59. John Robertson, ed., A Union for Empire: Political Thought and the British Union of 1707 (Cambridge: Cambridge University Press, 1995)
60. Roger A. Mason, ed., Scots and Britons: Scottish Political Thought and the Union of 1603 (Cambridge: Cambridge University Press)
61. Kettner, Development of American Citizenship, 16-28
62. Price, "Natural Law and Birthright Citizenship in Calvin's Case," 73-145. The protections offered by the privileges and immunities clause in Article IV of the U. S. Constitution, guaranteeing equal treatment of one state's citizens in another state, is analogous to what James sought for the subjects of his multiple kingdoms
63. "Moore's Report," State Trials, 2:562-63
64. See also Francis Bacon, "A Speech Used by Sir Francis Bacon, In the Lower House of Parliament, Concerning the Article of Naturalization," 14 Feb. 1607, The Works of Francis Bacon, ed. James Spedding, Robert L. Ellis, and Douglas D. Heath, 14 vols. (London, 1861-74), 10:307-25
65. State Trials, 2:563
66. State Trials, 2:564
67. Theodore K. Rabb, Jacobean Gentleman: Sir Edwin Sandys, 1561-1629 (Princeton: Princeton University Press, 1998), 319-85
68. Wesley F. Craven, The Dissolution of the Virginia Company: The Failure of a Colonial Experiment (New York: Oxford University Press, 1932), 81 ff
69. On the distinction between dynastic realms and nations, see Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991). Sharper definition of the English political nation never precluded enthusiasm for colonies. Commonwealthmen like James Harrington, for example, retained a role for the empire in their ideal scheme
70. See James Harrington, The Commonwealth of Oceana
71. and J. G. A. Pocock, ed., A System of Politics (1652; reprint. New York: Cambridge University Press, 1992), 11, 16-17, 217-28
72. "Suppose one man is owner of two pastures, with one hedge to divide them; the one pasture bare, the other fertile and good. A wise man will not quite pull down the hedge, but make gates to let the cattle in and out at pleasure; otherwise they will rush in in multitudes. " William Cobbett, The Parliamentary History of England (London: T. C. Hansard, 1806), 1:1062 (remarks of Mr. Fuller in 1606 debate)
73. See also Cobbett's Parliamentary History, 1:1087 (Francis Bacon's reply)
74. and generally, Linda Colley, Britons: Forging the Nation, 1707-1837 (New Haven: Yale University Press, 1992), 117-22
75. For this form of polity, characteristic of the early modern period, see H. G. Koenigsberger, "Dominium Regale or Dominium Politicum et Regale: Monarchies and Parliaments in Early Modern Europe," in his Politicians and Virtuousi: Essays in Early Modern History (London: Hambledon Press, 1986), 1-25
76. See Armitage, Ideological Origins of the British Empire, 128
77. See Raymond A. DeRoover, Gresham on Foreign Exchange; An Essay on Early English Mercantilism with the Text of Sir Thomas Gresham's Memorandum: For the Understanding of the Exchange (Cambridge: Harvard University Press, 1949)
78. See Jenny Wormald, "James VI and I: Two Kings or One?" History 68 (1983): 187-209
79. Cf. Burgess, Absolute Monarchy and the Stuart Constitution
80. Craven, Dissolution of the Virginia Company, 37
81. Edmund S. Morgan, American Slavery/American Freedom: The Ordeal of Colonial Virginia (New York: Norton, 1975), 79-80
82. At home, the Crown's use of martial law on civilians led to a grievance in the 1628 Petition of Right. J. P. Kenyon, ed., The Stuart Constitution: Documents and Commentary (Cambridge: Cambridge University Press, 1966), 83-84
83. Lindsay Boynton, "Martial Law and the Petition of Right," English Historical Review 79 (1964): 255-84
84. By that time, however, martial law had been abandoned in Virginia. Craven, Dissolution of the Virginia Company, 70
85. For the prevalence of the hierarchical metaphor in early modern England, see Arthur O. Lovejoy, The Great Chain of Being: A Study in the History of an Idea (Cambridge: Harvard University Press, 1936)
86. W. H. Greenleaf, Order, Empiricism and Politics: Two Traditions of English Political Thought (Westport, Conn. : Greenwood Press, 1980)
87. See S. F. C. Milsom, Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1981), 11-36
88. Edward Coke, proeme to The Fourth Part of the Institutes of the Laws of England; Concerning the Jurisdiction of the Courts (1644; reprint, London: M. Plesher, 1817), unpaginated
89. For recent use of the cartographic metaphor, see Christopher L. Tomlins, "The Legal Cartography of Colonial English Intrusions on the American Mainland in the Seventeenth Century," ABF Working Paper #9816
90. See Margaret A. Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603-1645 (New Brunswick: Rutgers University Press, 1949)
91. See also J. P. Sommerville, Politics and Ideology in England, 1603-1640, 2d ed. (London: Longman, 1999), 81-100
92. On the Civil War as "the War of the Three Kingdoms," see J. C. Beckett, The Making of Modern Ireland, 1603-1923 (London: Faber and Faber, 1981), 82-103
93. Conrad Russell, The Causes of the English Civil War (Oxford: Clarendon Press, 1990)
94. Lauren Benton defines jurisdictional politics as "conflicts over the preservation, creation, nature, and extent of different legal forums and authorities. " Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (New York: Cambridge University Press, 2001), 10
95. Coke, The First Part of the Institutes of the Laws of England, ed. Francis Hargrave and Charles Butler, 18th ed., 2 vols. (1628; London, 1823), 11b
96. Coke, First Institutes, 11b
97. See also John Davies, The Question Concerning Impositions, Tonnage, Poundages ... Fully Stated and Argued from Reason, Law and Policy (London, 1656), 2-3
98. See also Judson, Crisis of the Constitution, 246
99. Louis Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge: Cambridge University Press, 1977), 164-67
100. Harold J. Berman, "The Origins of Historical Jurisprudence: Coke, Selden, Hale," Yale Law Journal 103 (1994): 1651-1738
101. For an earlier version of this conflict, compare Burgess, Absolute Monarchy and the Stuart Constitution, 63-90
102. with Sommerville, Royalists and Patriots, 113-19
103. Compare F. W. Maitland, English Law and the Renaissance: The Rede Lecture for 1901 (Cambridge: Cambridge University Press, 1901)
104. with J. H. Baker, "English Law and the Renaissance," in his The Legal Profession and the Common Law: Historical Essays (London: Hambledon Press, 1986), 461-76
105. Helgerson, Forms of Nationhood, 66-67
106. Among other limitations, this common law world view deemphasized the feudalization of land tenures after the Conquest. But the point was to create a usable past rather than an objective history of England. See Pocock, Ancient Constitution
107. Burgess, Ancient Constitution
108. John P. Reid, "The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries," in Roots of Liberty, 147-231
109. Bowen, Lion and the Throne, 370-90
110. For these controversies between Coke and the king, see Knafla, Law and Politics in Jacobean England, 123-81
111. F. W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1920), 268-71
112. William Holdsworth, Some Makers of English Law (Cambridge: Cambridge University Press, 1938), 127-31
113. Bowen, Lion and the Throne, 277-390
114. See William B. Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origins to the Adoption of the United States Constitution (New Orleans: Tulane University, 1965)
115. Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (New Haven: Yale University Press, 1997), 173-76
116. Harold J. Cook, "Against Common Right and Reason: The College of Physicians versus Dr. Thomas Bonham," American Journal of Legal History 29 (1985): 301-22
117. See John U. Lewis, "Sir Edward Coke (1552-1633): His Theory of 'Artificial Reason' as a Context for Modern Basic Legal Theory," Law Quarterly Review 84 (1968): 330-42 (arguing that "Coke thought that the powers of Parliament were, or should be, identically those of the common law," and new legislation was the working out of the law's "artificial reason")
118. Cf. R. W. K. Hinton, "The Decline of Parliamentary Government under Elizabeth I and the Early Stuarts," Cambridge Historical Journal 13 (1957): 124,127-29 (arguing that the growth of "unparliamentary government" under the Stuarts compelled opponents to embrace fundamental law)
119. A. W. B. Simpson, A History of the Land Law, 2d ed. (Oxford: Clarendon Press, 1986)
120. Robert C. Palmer, "The Feudal Framework of English Law," Michigan Law Review 79 (1981): 1130-64
121. See S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976)
122. See James Harrington, Oceana in The Political Works of James Harrington, ed. J. G. A. Pocock (Cambridge: Cambridge University Press, 1977)
123. Cf. R. H. Tawney, The Agrarian Problem in the Sixteenth Century (New York: Harper and Row, 1967), 192-93
124. See John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 68-73
125. Cobbett's Parliamentary History, 1:1082-83
126. See J. H. Baker, The Law's Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, 2001), 52-53
127. The Stuart kings commissioned this special court - "the Exchequer Chamber" - several times in the early seventeenth century to obtain definitive public law rules that would have effect throughout their territories. Hans S. Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge: Cambridge University Press, 1985), 43-44
128. An exception existed for the "necessary habitation" by an "alien friend" to encourage "trade and traffick, which is the life of every island. " State Trials, 2:638
129. The classic study is Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957)
130. For analysis of Coke's resort to natural law, see Keechang Kim, "Calvin's Case (1608) and the Law of Alien Status," Journal of Legal History 17 (1996): 155-71
131. D. M. Jones, "Sir Edward Coke and the Interpretation of Lawful Allegiance in Seventeenth-Century England," History of Political Thought 7 (1986): 331
132. Kettner, Development of American Citizenship, 103. Naturalization in England did entitle one to hold land in overseas territories
133. The exception was Ireland: writs of error ran from the Irish courts to the English court of King's Bench, though this was controverted in Ireland. Martin S. Flaherty, "The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy," Columbia Law Review 87 (1987): 593-622. See also note 129, below
134. The example Coke used was "the kings' writ to command any of his subjects, residing in any foreign country, to return into any of the king's own dominions. " State Trials, 2:643, 77 Eng. Rep. at 401
135. See also Max Radin, "The Rivalry of Common-Law and Civil Law Ideas in the American Colonies," in Law: A Century of Progress, 1835-1935 (New York: New York University Press, 1937), 2:410
136. Compare Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999)
137. with Antony Anghie, "Francisco de Vitoria and the Colonial Origins of International Law," in Laws of the Postcolonial, ed. Eve Darian-Smith and Peter Fitzpatrick (Ann Arbor: University of Michigan Press, 1999), 89-107
138. At about the same time, Grotius wrote the orthodox statement of the right of free passage for peaceful purposes among European nations. Grotius, De Jure Belli ac Pacis, trans. Francis W. Kelsey, ed. James B. Scott (New York: Oceana Publications, 1964), bk. 2, chap. 2, sec. 13. This, of course, did not guarantee equal subjectship among nations
139. See, e. g., The Princeton Principles on Universal Jurisdiction (2001), www.princeton.edu/lapa/unive-jur.pdf
140. Though Coke claimed that he provided "the right understanding" of the holding and that there was little "variety of opinions" among the judges. State Trials, 2:613, 658, 77 Eng. Rep. at 381, 410. But see note 80, above
141. See D. G. James, The Dream of Prospero (Oxford: Clarendon Press, 1967), 83-88
142. Louis B. Wright, Religion and Empire: The Alliance between Piety and Commerce in English Expansion, 1558-1625 (Chapel Hill: University of North Carolina Press, 1943)
143. See Bowen, The Lion and the Throne, 190-217, 343
144. [Robert Johnson,] Nova Britannia: Offering Most Excellent Fruites by Planting in Virginia (London, 1609)
145. Beckett, The Making of Modern Ireland, 45-48
146. See also Wesley F. Craven, The Southern Colonies in the Seventeenth Century, 1607-1689 (Baton Rouge: Louisiana State University Press, 1949), 81, 85-87
147. Robert A. Williams Jr., "The English Conquest of Virginia," in The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 208-12
148. See also David T. Konig, "'Dale's Law' and the Non-Common Law Origins of Criminal Justice in Virginia," American Journal of Legal History 26 (1982): 354-75
149. and generally Stephen S. Webb, The Governors-General: The English Army and the Definition of the Empire, 1569-1681 (Chapel Hill: University of North Carolina Press, 1979)
150. Bowen, Lion and the Throne, 194
151. David T. Konig, "Colonizing and the Common Law in Ireland and Virginia, 1569-1634," in The Transformation of Early American History: Society, Authority, and Ideology, ed. James A. Henretta, Michael Kammen, and Stanley N. Katz (New York: Knopf, 1991), 70-92
152. Attorney General Francis Bacon referred to the Indies once in argument. State Trials, 2:590-91
153. And to allay Parliamentary fears of Scottish immigration, Bacon pointed out that "our colonies and plantations" would offer a haven for poor Scots. Cobbett's Parliamentary History, 1:1087
154. It remained the starting point for conceptualizing the empire into the twentieth century. See, e. g., Arthur B. Keith, Dominions as Sovereign States: Their Constitutions and Governments (London: Macmillan, 1938), 111
155. See Frederick Madden, "Some Origins and Purposes in the Formation of British Colonial Government," in Essays in Imperial Government Presented to Margery Perham, ed. Kenneth Robinson and Frederick Madden (Oxford: B. Blackwell, 1963), 10
156. Berman, "Origins of Historical Jurisprudence," 1678-89
157. State Trials, 2:641
158. See also State Trials, 2:612, 77 Eng. Rep. at 400 (claiming that the advocates "told no strange histories, cited no foreign laws, produced no alien precedents")
159. See A. F. McC. Madden, "1066, 1776, and All That: The Relevance of the English Medieval Experience of 'Empire' to Later Constitutional Issues," in Perspectives of Empire: Essays Presented to Gerald S. Graham, ed. John E. Flint and Glyndwr Williams (London: Longman, 1973), 9-26
160. Julius Goebel Jr., "The Matrix of Empire," introduction to Joseph H. Smith, Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), xii-lxi
161. Cf. J. R. Seeley, The Expansion of England (1883; reprint, Chicago: University of Chicago Press, 1971), 12-13 (observing that "[w]e seem, as it were, to have conquered and peopled half the world in a fit of absence of mind. While we were doing it, that is in the eighteenth century, we did not allow it to affect our imaginations or in any degree to change our ways of thinking ... ")
162. Lord Chancellor Ellesmere criticized Coke's reasoning in his own opinion. State Trials, 2:659-96
163. State Trials, 2:612, 77 Eng. Rep. at 381 (paraphrasing Chaucer's Parliament of Fowls)
164. Suggestive here is J. C. Holt's discussion of the mythology of the Magna Carta, to which Coke substantially contributed. Holt, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992), 1-22
165. The doctrine of conquest was "among the accepted leading ideas of European civilization. " Donald Sutherland, "Conquest and Law," Studia Gratiana 15 (1972): 33-51
166. See also Hans S. Pawlisch, "Sir John Davies, the Ancient Constitution and Civil Law," Historical Journal 23 (1980): 689-702
167. State Trials, 2:638-39, 77 Eng. Rep. at 398
168. State Trials, 638; 77 Eng. Rep. at 398. Coke adhered to a harsher version of dispossession than advocated by the Spanish theologian Francisco de Vitoria
169. For the latter, see Anthony Pagden, "Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over Property Rights of the American Indians," in The Languages of Political Theory in Early-Modern Europe, ed. Anthony Pagden (New York: Cambridge University Press, 1987), 79-98
170. State Trials, 2: 639, 77 Eng. Rep. at 398
171. See, e. g., James Wilson, "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament," in The Collected Works of James Wilson, ed. Robert G. McCloskey (Cambridge: Belknap Press of Harvard University Press, 1967), 2:721-46
172. John Adams, "Novanglus," 27 March 1775, in Novanglus and Massachusettensis (Boston: Hews and Goss, 1819), 111-12
173. See also Kettner, Development of American Citizenship, 131-72
174. See Schuyler, Parliament and the British Empire, 1-39
175. Julius Goebel Jr., "Book Review: Parliament and the British Empire, by Robert L. Schuyler," Columbia Law Review 30 (1930): 273-76
176. Black, "The Case for the Colonies"
177. McIlwain, The American Revolution: A Constitutional Interpretation
178. Black, "The Case for the Colonies," 1181
179. See also Jack P. Greene, Peripheries and Center: An Interpretation of British-American Constitutional Development, 1607-1788 (Athens: University of Georgia Press, 1986), 23-24
180. See Beckett, The Making of Modern Ireland, 51, 225. The "naming" doctrine was generally accepted, especially in the metropole, but occasionally rejected by Irish legal thinkers
181. See Jacqueline Hill, "Ireland without Union: Molyneux and His Legacy," in A Union for Empire, 271-96
182. Flaherty, "The Empire Strikes Back. "
183. State Trials, 2:640-47, 77 Eng. Rep. at 399-404
184. On the transformation of Parliament, see Wallace Notestein, The Winning of the Initiative by the House of Commons (London: Oxford University Press, [1924])
185. Conrad Russell, Parliaments and English Politics, 1621-1629 (Oxford: Oxford University Press, 1979), 45-46
186. In addition, the two sides of the historiographical debate disagree in their interpretation of the Glorious Revolution. McIlwain believed that the principle of parliamentary supremacy, which emerged after 1688, was a metropolitan doctrine only, while Schuyler maintained that it extended throughout the empire. McIlwain, American Revolution, 10-11
187. Schuyler, Parliament and the British Empire, 25-26
188. Consensus among historians now is that Parliament could legislate upon external, but not internal, aspects of the overseas territories, and there is nothing in Coke to dispute this - though not enough to support it fully either. John P. Reid, The Constitutional History of the American Revolution: The Authority to Legislate (Madison: University of Wisconsin Press, 1991), 32
189. Reid, The Constitutional History of the American Revolution: The Authority to Tax (Madison: University of Wisconsin Press, 1987), 42
190. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 213 n. 55
191. Jack P. Greene, Peripheries and Center: Constitutional Developments in the Extended Polities of the British Empire and America, 1607-1788 (Athens: University of Georgia Press, 1986), 88
192. Harvey Wheeler, "Calvin's Case (1608) and the McIlwain-Schuyler Debate," American Historical Review 61 (1955-56): 597
193. For these domestic struggles in the years preceding the American Revolution, see Margaret M. Spector, The American Department of the British Government, 1768-1782 (New York: Columbia University Press, 1940)
194. Cf. Wheeler, "Calvin's Case," 589 (noting that Coke ruled in favor of the Crown but did not hold that "the union of crowns caused a resulting degree of union between the laws and institutions of England and Scotland, thus giving judgment for James without actually awarding defeat to the Commons")
195. See generally Pocock, Ancient Constitution
196. For the Continental distinction, see Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France, c. 1500 - c. 1800 (New Haven: Yale University Press, 1995), 91-94
197. Compare Maitland, English Law and the Renaissance
198. with J. H. Baker, "English Law and the Renaissance. "
199. See Smith, Appeals to the Privy Council, 10-11
200. The exception was the controversial practice whereby the English King's Bench took writs of error from Ireland until such jurisdiction was abolished in 1783. State Trials, 2:639, 77 Eng. Rep., at 398
201. Schuyler, Parliament and the British Empire, 64-67, 82-83, 87, 99-100
202. The first were Barbadian royalists during the Civil War. Schuyler, Parliament and the British Empire, 106-16
203. State Trials, 2:639, 77 Eng. Rep. at 398
204. State Trials, 2:643, 77 Eng. Rep. at 401
205. Note that, according to Coke, only emigrants to conquered "Christian kingdom[s]" would enjoy these property rights. State Trials, 2:639, 77 Eng. Rep. at 398. But the logic could extend to other dominions too
206. For this process, see Smith, Appeals to the Privy Council
207. See John M. Murrin, "The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts," in Colonial America: Essays in Politics and Social Development, ed. Stanley N. Katz and John M. Murrin, 3d ed. (New York: Knopf, 1983)
208. Eben Moglen, Settling the Law: Legal Development in Provincial New York, 1664-1776 (forthcoming)
209. See also Daniel J. Hulsebosch, "Writs to Rights: 'Navigability' and the Transformation of the Common Law in the Nineteenth Century," Cardozo Law Review 23 (2002): 1049-106
210. S. F. C. Milsom, "The Nature of Blackstone's Achievement," Oxford Journal of Legal Studies 1 (1981): 4
211. On the 1618 reforms, see Craven, Dissolution of the Virginia Company, 47-80
212. State Trials, 2:638. Coke's proposed compromise between domestic liberties and native law suggests both similarities and differences between the role of Calvin's Case in the British empire and the Insular Cases in the overseas territories of the United States
213. See Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution, ed. Christina Duffy Nurnett and Burke Marshall (Durham: Duke University Press, 2001)
214. See D. A. Washbrook, "India, 1818-1860: The Two Faces of Colonialism," in The Oxford History of the British Empire, ed. Andrew Porter (New York, 1998), 3:398, 407, 415
215. Daniel J. Hulsebosch, "Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750-1777," Law and History Review 16 (1998): 366-68
216. On advowson, see Blackstone, Commentaries, 2:21-22
217. On the emergence of an heir's right, see Milsom, Historical Foundations, 2-3, 119-22
218. Cf. Edward J. McCaffrey, "The Uneasy Case for Wealth Transfer Taxation," Yale Law Journal 104 (1994): 283-365
219. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985)
220. J. H. Baker, "Personal Liberty under the Common Law of England," in The Origins of Modern Freedom in the West, ed. R. W. Davis (Stanford: Stanford University Press, 1995), 178-202
221. A franchise, wrote F. W. Maitland, was "a portion of royal power in the hands of a subject," granting him immunity from some royally imposed burden or the power to exercise some aspect of royal power. Frederick Pollock and Frederic W. Maitland, The History of English Law before Edward I, 2d ed. (Cambridge: Cambridge University Press, 1952), I:384
222. See also [John Rastall,] Les Termes de la Ley: or, Certain Difficult and Obscure Words and Terms of the Common and Statute Law of England (London, 1721), 232, 280 (defining franchise and liberty in jurisdictional terms)
223. An excellent example is the abstraction of Darcy v. Allen, which merely held that the common law courts had no jurisdiction over the interpretation of royal monopolies but was later expanded to stand for the proposition that the common law abhorred monopoly and even that monopolies were illegal under English law. Coke's report of the decision abetted the more abstract interpretation. Jacob I. Corre, "The Argument, Decision, and Reports of Darcy v. Allen," Emory Law Journal 45 (1996): 1261-1327
224. For this way of understanding the history of ideas, see Quentin Skinner, "Meaning and Understanding in the History of Ideas," History and Theory 8 (1969): 1-53
225. On the connection between colonization and rigid substantive law, including reported precedents and treatises, see Pawlisch, Sir John Davies and the Conquest of Ireland, 42-45
226. Hulsebosch, "Writs to Rights. "
227. See Plucknett, "The Genesis of Coke's Reports" (concluding that Coke was less interested than previous reporters in pleadings and more in judicial "statements of general principle, making little distinction between those which were the basis of the decision and those which were only obiter")
228. On the equation of liberty with property in early America, see John P. Reid, The Constitution History of the American Revolution: The Authority of Rights (Madison: University of Wisconsin Press, 1986), 103-13
229. Jack N. Rakove, Declaring Rights: A Brief History with Documents (Boston: Bedford Books, 1998), 20
230. See Williams, "English Conquest of Virginia," 193-225
231. See generally Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (Chapel Hill: University of North Carolina Press, 1975)
232. See Pagden, Lords of All the World, 93-94
233. Cf. Patricia Seed, Ceremonies of Possession in Europe's Conquest of the New World, 1492-1640 (New York: Cambridge University Press, 1995) (arguing that most Britons preferred to view the American colonists as settlers rather than conquerors)
234. For a classical statement of the three ways to obtain property - settlement, conquest, and the due process of law - see Cicero, De officiis, trans. Walter Miller (Cambridge: Harvard University Press, 1968), 23 (Book I, viii)
235. John Locke, Two Treatises of Government, ed. Peter Laslett, rev. ed. (New York: Mentor, 1963), 343, 336. Laslett notes that Locke drafted the Second Treatise during 1679-80, and it circulated at least among a few readers soon after
236. James Tully notes that reports about the Amerindians influenced Locke's theory of property. Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 137-76
237. Pagden, Lords of All the World, 77. The point here is that Locke's theory may, in turn, have influenced how colonists viewed the process of settlement
238. As Barbara A. Black points out, "the doctrine of settlement cannot be deduced from Calvin's Case. It is a creative extension, by way of judicial legislation, of the principles behind Coke's own bit of judicial law-making in Calvin's Case. " Black, "The Case for the Colonies," 1206 (emphasis in the original)
239. The editors of an influential sourcebook of the British Empire, for example, assume that the colonies were settlements rather than conquered provinces. "[W]hile the principle that English law applied in English colonies was accepted in general, its specific application was not at all clear. " Frederick Madden with David Fieldhouse, eds., Select Documents on the Constitutional History of the British Empire and Commonwealth System (Westport, Conn. : Greenwood Press, 1985), 2:190
240. See also J. H. Baker, "'United and Knit to the Imperial Crown': An English View of the Anglo-Hibernian Constitution in 1670," in Mysteries and Solutions in Irish Legal History, ed. D. S. Greer and N. M. Dawson (Dublin: Four Courts Press, 2001), 73-95
241. For the use of this dictum in Somersett's Case, see James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 2:1221-40
242. Mr. West's Opinion, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (London: Reed and Hunter, 1814), 1:194-95
243. A sober review of these opinion letters and case dicta is Smith, Appeals to the Privy Council, 465-87
244. cf. Reid, Authority of Rights, 114-31
245. Peere Williams Reports, 3 vols. (1740-49)
246. Smith, Appeals to the Privy Council, 483
247. See, e. g., Madden and Fieldhouse, Select Documents on the Empire, 1:192 n. 1
248. William Blackstone, Commentaries on the Laws of England, 4 vols. (1765-69; Oxford: Printed for John Hatchard and Son, 1822), 1:105-6
249. See also Kettner, Development of American Citizenship, 59, 131-72
250. First Charter to Virginia (1606), in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of ... the United States of America, ed. Francis N. Thorpe (Washington, D. C., 1909), 7:3788. Gilbert's charter is most explicit: settlers and their children shall "enjoy all the priveleges [sic] of free denizens and persons native of England, and within our allegiance. " Letters Patent to Sir Humfrey Gylberte (1578), in ibid., 1:51. A similar formulation was repeated in most charters that followed. All are available in Thorpe's collection
251. See, e. g., James Duane, "Address before the Committee to State the Rights of the Colonies" [9/8/1774], Letters of Members of the Continental Congress, ed. Edmund C. Burnett (Eashington, D. C. : The Carnegie Foundation of Washington, 1921), 1:24-25
252. Some historians make a similar mistake. See, e. g., Theodore Draper, A Struggle for Power: The American Revolution (New York: Times Books, Random House, 1996), 33
253. Zachariah Chafee Jr., "Colonial Courts and the Common Law," in Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill: University of North Carolina Press, 1969), 56
254. Charles M. Andrews, Colonial Period of American History (New Haven: Yale University Press, 1934), 1:85-86
255. For the British Empire, this was the issue in Somersett's Case. See Oldham, The Mansfield Manuscripts, 1221-25, 1229-38
256. For the same problem in the early United States, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981)
257. This clause became standard for trading companies in the sixteenth century. Under the Virginia Company's 1609 charter, for example, the governing council was to make law "as near as conveniently may be,... agreeable to the laws, statutes, government, and policy of ... England. " Julius Goebel Jr. and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776) (1944; reprint, Montclair, N. J. : Patterson Smith, 1970), xxi-xxii, 3-6, 13
258. See, e. g., Chafee, "Colonial Courts and the Common Law," 56-57
259. See Smith, Appeals to the Privy Council, 464-65, 523-31
260. White, Grievances of the Commonwealth, 213-74
261. See Morgan, American Slavery/American Freedom, 79
262. Craven, Southern Colonies in the Seventeenth Century, 81, 85-87
263. Commons Debates, 1628, 3:487
264. For other seventeenth-century parliamentarians (including John Pym) who denied that the colonists enjoyed English rights, see Karen O. Kupperman, "The Beehive as a Model for Colonial Design," in America in European Consciousness, 1493-1750, ed. Karen O. Kupperman (Chapel Hill: University of North Carolina Press, 1995), 285-86
265. See Russell, Causes of the English Civil War, 26-57
266. Sommerville, Royalists and Patriots, 134-75
267. For the concept of a "Greater Britain" of white settler colonies, see J. R. Seeley, The Expansion of England (1833; reprint, Chicago: University of Chicago Press, 1971), 8
268. See also David Armitage, "Greater Britain: A Useful Category of Historical Analysis?" American Historical Review 104 (1999): 427-45
269. Eliga H. Gould, "A Virtual Nation: Greater Britain and the Imperial Legacy of the American Revolution," American Historical Review 104 (1999): 476-89
270. See generally J. G. A. Pocock, "British History: A Plea for a New Subject," Journal of Modern History 47 (1975): 601-21
271. Pocock, "The Limits and Divisions of British History: In Search of an Unknown Subject," American Historical Review 87 (1982): 311-36. Ireland occupied an uncertain middle ground between Britain and the colonies, though the Act of Irish Union was designed to make it part of Great Britain
272. Coke noted that, upon the fall of the Anglo-Saxon Heptarchy "all the other kings melted ... the crowns to make one imperial diadem, for the king of the West Saxons over all. " State Trials, 2:650
273. See also Madden, "The Relevance of the English Medieval Experience of 'Empire' to Later Constitutional Issues"
274. Goebel, "Matrix of Empire"
275. Armitage, Ideological Origins of the British Empire, 22-23
276. Hulsebosch, Constituting Empire, chaps. 7-8
277. See Black, "The Case for the Colonies," 1172 (commenting on McIlwain's thesis that the colonists correctly interpreted the English constitution)
278. Julius Geobel Jr. et al., eds., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (New York: Columbia University Press, 1969-1981), 1:357, 358 (documenting Hamilton's citation of Coke in Rutgers v. Waddington). And Thomas Jefferson remembered that during his apprenticeship Coke's First Institutes "was the universal law book of students, and a sounder Whig never wrote, nor a profounder learning and judgment in the orthodox doctrines of the British Constitution, or in what is called British liberties. "
279. Andrew A. Lipscomb, ed., The Writings of Thomas Jefferson (Washington, D. C. : Thomas Jefferson Memorial Association of the United States, 1903-4), 12:iv
280. See, e. g., Kermit Hall, William Wiecek, and Paul Finkelman, American Legal History: Cases and Materials (New York: Oxford University Press, 1991), 23
281. Stephen Presser and Jamil Zainaldin, Law and Jurisprudence in American History: Cases and Materials, 4th ed. (St. Paul, Minn. : West Publishing Company, 2000), 28-29
282. Cf. Katz, "The Problem of a Colonial Legal History," 476-77
283. John M. Murrin, "Anglicizing an American Colony: The Transformation of Massachusetts" (Ph. D. diss., Yale University, 1966)
284. The book went through many editions in London, Dublin, and, after the Revolution, the United States, between 1628 and 1836. See W. Harold Maxwell and Leslie F. Maxwell, eds., A Legal Bibliography of the British Commonwealth of Nations (London: Sweet and Maxwell, 1955), 1:449-52
285. See also Steve Sheppard, History of Legal Education in the United States: Commentators and Primary Sources (Pasadena: Salem Press, 1999), 1:10-11 (observing that Coke's First Institute "held first position as the textbook of the common law" into the early nineteenth century)
286. For postcolonial struggle within and against imperial resources, see Homi K. Bhabha, "Of Mimicry and Man: The Ambivalence of Discourse," in his The Location of Culture (New York: Routledge, 1994), 85-92
287. See also Lawrence Buell, "Postcolonial Anxiety in Classic U. S. Literature," in Postcolonial Theory and the United States: Race, Ethnicity, and Literature, ed. Amritjit Singh and Peter Schmidt (Jackson: University Press of Mississippi, 2000), 196-219
288. There are many strands to postcolonial studies. I have in mind here examinations of white settler colony cultures, or what Alan Lawson calls the empire's "second world" relative to the first world of Great Britain and the third of the nonwhite colonies. Alan Lawson, "Comparative Studies and Post-Colonial Settler Cultures,"Australian-Canadian Studies 10 (1992): 153-59
289. Lawson, "A Cultural Paradigm for the Second World," Australian-Canadian Studies 9 (1991), 68
290. See also Bill Ashcroft, Gareth Griffiths, and Helen Tiffin, eds., The Post-Colonial Studies Reader (New York: Routledge, 1995)
291. On transatlantic commercial exchange, see David Hancock, Citizens of the World: London Merchants and the Integration of the British American Community, 1735-1785 (New York: Cambridge University Press, 1995)
292. See Hulsebosch, "Imperia in Imperio"
293. Morgan, American Slavery/American Freedom