For Use at the Law and Humanities Interdisciplinary Conference
Short version
June 2003
The English Constitution and the Expanding Empire:
Sir Edward Coke's British Jurisprudence
Daniel J. Hulsebosch
One of the great ironies in Anglo-American constitutional history is that Sir Edward
Coke, the seventeenth-century mythologist of the “ancient constitution” and the English jurist
most celebrated in early America, did not believe that the king's subjects enjoyed the common
law and many related rights of Englishmen while overseas. "The common law," Coke stated in
Parliament in 1628, "meddles with nothing that is done beyond the seas." The ancient
constitution was an English constitution and, though non-English subjects of the English king
could enjoy its liberties and privileges while in England, it did not apply to anyone outside that
realm. The jurisprudence that gave intellectual shape to colonial resistance before, and to
notions of the rule of law after, the American Revolution was not intended by its primary author
to benefit Americans. Whether or not the ancient constitution existed time out of mind, it did not
extend to land out of sight.
This is not how Americans have viewed Coke, not in the early modern period and not in
recent historiography. The Coke of American legal folklore is a champion of liberty and judicial
review, and perhaps an opponent of Parliamentary control over the colonies. The real Coke was
born in 1552, and served as the crown's attorney general. In that capacity he prosecuted Sir
Walter Raleigh for treason and in 1606 drafted the charter of the Virginia Company, which got
Raleigh's American land. Then Coke ascended to the common law bench for ten years, until
1
King James I removed him for challenging the royal authority. More important for the
development of Anglophone legal culture were Coke's publications, which were mostly in
English and, as Richard Helgerson points out, marked the beginning of vernacular legal
literature: thirteen volumes of case reports and the four volume Institutes of the Laws of England.
These books were the starting point of legal education throughout the Atlantic world into the
nineteenth century. In addition, these writings helped create the Anglo-American idea of a
constitution, a national legal environment anterior to the positive law of kings, legislatures, and
courts.
Coke's immemorial or “ancient” constitution was a canon of core common law
institutions (like the jury), rules (like an heir's right of inheritance), and statutes declaring or
improving common law (the most famous being Magna Carta). Coke was this canon's ablest
creator and curator in and out of court. After James dismissed him from King's Bench in 1616,
Coke became a prominent member of the Whig Parliaments of the 1620s and helped draft the
Petition of Right in 1628, instantly part of the constitutional canon. Beginning about the time of
the Glorious Revolution, colonists abroad, from Jamaica to Canada, invoked this canon to
oppose imperial regulation. The line between Coke and modern ideas of constitutionalism is not
straight, but the dots can be connected--and they were by American lawyers who resisted the
Empire and then forged the Union.
The reception of Coke's canon in early America is not the focus of this paper. It instead
examines the assumption that Coke believed that his common law jurisprudence extended to the
colonies and attempts to recover the original intent, as it were, of the ancient constitution in the
mind of one of its framers. This approach offers a way to revise the old historiographical
2
chestnut of whether colonial law an English derivative or an American creation by reformulating
the problem in terms of how common law culture was packaged for exported, how it circulated
through the Atlantic world, and how English-speakers drew upon it in concrete controversies.
This paper concentrates on Coke’s production of that legal culture rather than on colonial
consumption and re-production. Coke’s work in the early seventeenth century was critical to
Atlantic legal history because at the same time that the English began expanding beyond the
realm to create what became known as an empire, they also innovated upon old scripts of
fundamental law to define their constitution--to define the English nation. Constitutional thought
and imperial expansion developed simultaneously and reciprocally.
An examination of Coke’s opinion in Calvin’s Case and other writings demonstrates that
Coke thought that the common law was limited to England. He retained a medieval conception
of law as primarily jurisdictional rather than jurisprudential, meaning that the common law was
inseparable from the institutions that applied, practiced, and taught the common law: the
Westminster courts, their circuits, the common law bar, and the Inns of Court. The common law
was its mechanisms of enforcement. Jurisprudence, on the other hand, refers to a rationally
organized body of rules and principles defined primarily in reference to each other, not to the
remedies and personnel enforcing them. Jurisdictional and jurisprudential conceptions of law
probably exist simultaneously in every legal system at most times, but, like dominant and
recessive genes, one overshadows the other at any particular moment. For Coke, the "ancient
frame of the common laws" was still the customary law of the English common law courts--the
dispute resolution procedures of a specific court system. It was not an abstract system of
jurisprudence operative on all people in all lands held by the English king. Coke simply would
3
not have understood the claim of future colonists that they enjoyed the common law in the
colonies. For his generation, remedy defined right, and remedies depended on enforcement
institutions whose jurisdiction was confined within definite territorial boundaries.
But these sources also show that Coke contributed to the transformation of the common
law to substantive jurisprudence that could be understood apart from its jurisdictional matrix. It
happened when he glimpsed the predicament of English subjects who traveled to the colonies.
He was willing to provide them some legal protection, though not the entire constitutional canon.
Coke, an architect of the Gothic English constitution, also sketched the outline of a minimalist
imperial constitution.
I. The Holding in Calvin's Case: Reciprocal Subjectship and the Limits of English Liberties
Calvin's Case was decided in 1608 by a special court comprising all fifteen central
common law judges. Coke's opinion became the most important, not least because he published
it in his Reports, where he called it "the greatest case ever argued in Westminster hall." The
issue was simple: could a Scot hold land in England? James VI of Scotland inherited the English
crown in 1603, becoming there James I, and a host of "border" issues arose. The most
controversial was the right of subjects from one kingdom to hold land in the other.
Throughout Europe, aliens could not hold land; only natural or naturalized subjects could.
This was, in Coke's words, to protect the kingdom from the “Trojan horse” of aliens who would
“set fire on the commonwealth.” But were Scots aliens in England? A royal commission
recommended that each kingdom treat subjects from the other as natural subjects and not aliens.
The Scottish Parliament assented, but not the English one. In part, English parliamentarians
4
feared of being overrun by poor Scots. More important, they feared that reciprocal subjectship
would tend to erase the legal borders between the king's various territories, what were coming to
be seen as national borders. The periphery would exert reverse, negative influence on England,
as something like Gresham's law took over and leveled down legal privileges throughout the
king's lands.
Two aspects of this protest are notable. The first is the presumption of English legal
superiority, along with the assumption that England was the center of the king's territories.
Parliamentarians feared that the new Scottish King might view things from a different
perspective. The script of the ancient constitution was invented in this atmosphere of uncertainty
about whether the foreign king would try to impose a new legal order on England. Second,
Parliament was not concerned about the legal culture of the territories outside England.
Exporting cherished English liberties was no priority. Martial law, for example, was used freely
by the governors of the Virginia Company at the same time that these same men were decrying
its use at home in England, a complaint listed in the 1628 Petition of Right. In short, the addition
of new territories abroad helped sharpen English perceptions of their own legal culture: English
national identity depended on this constitutional alterity, within and outside the Empire.
In the midst the political deadlock, a collusive lawsuit made its way through the common
law courts in which the guardians of a Scottish infant named Calvin sought to vindicate title to
land he inherited in London but that was occupied by an English trespasser. The defendant
objected that Calvin was an alien, thus incapable of suing in the English common law courts for
land.
The judges decided that a Scot born after the union was a subject of the king in his
5
natural capacity and not just a subject of the Scottish king, and so could hold land in England.
The key was the medieval doctrine of ligeance, a feudal and personal view of the relationship
between each individual subject and the king. The upshot was that the court dismissed the
argument that Scots owed loyalty to James's political capacity as king of Scotland, not his natural
person, which happened also to be king of England. Because ligeance was personal, each subject
owed loyalty to James's natural person and in return James had a duty to protect every subject's
right to hold land in each of his kingdoms.
From a modern perspective, this holding is quite limited. All that the court held was that
a Scot could immigrate to England, and if he bought or inherited land he could sue in the English
common law courts to vindicate his title. Remedy defined right, and the common law remedial
writs went no farther than the English border. But the doctrine was radical for its time because it
encouraged mobility throughout the king's composite monarchy. Here is the truly British aspect
of the holding. A logical extension was that natural subjects in other royal territories, like
Ireland or Virginia, could return to England and likewise sue in the common law courts for land
in England. Indeed, Virginians had this liberty guaranteed in their charter, which Coke had
drafted: emigrants and their descendants "shall have and enjoy all Liberties, Franchises,
Immunities, within any of our other Dominions, to all intents and purposes as if they had been
abiding and born, within this our Realm of England, or any other of our said Dominions." But
Calvin's Case and the charter clause were limited in the sense that they did not mean that a Scot
or a Virginian could sue in the common law courts when involved in a dispute over Scottish or
Virginian land. For that, he had to resort to the local legal forum. Again, no one in the early
seventeenth century thought that Calvin's Case and the charter clause were funnels for exporting
6
all the emerging constitutional rights of England into the colonies.
II. Dicta: Coke's Imperial Constitution -- Consent and Property
There was more in Coke's opinion than this holding. In dicta unnecessary for the
decision--really, an extra disquisition on the royal territories--Coke sketched the outlines of an
imperial jurisprudence. Coke suggested that there were core English liberties--property rights
and consent--that the king had to respect whenever Englishmen traveled to his non-English
dominions. The former meant that emigrant Englishmen should be able to hold property in the
same tenures available in England. Under the latter, emigrants would benefit from parliamentary
government. These core liberties attached at birth within a royal territory and were not limited to
that territory. Here, Coke was on the verge of recognizing a new kind of imperial subjectship
defined by blood as well as territory and carrying with it empire-wide liberties.
First, Coke declared that the king must rule most overseas territories with the consent of
“a parliament.” He categorized all overseas territories as either inherited or conquered. The king
could not revise the laws of inherited land (like Scotland) wholesale; he had to rule with the
consent of a parliament. But the king also had to rule some conquered lands with consent. Coke
further divided conquered territories into Christian and infidel. In conquered Christian lands, the
king could not alter native laws without the consent of a local parliament. But in conquered
infidel lands the king could rule by natural equity, at least until he allowed a legislature.
In the Anglocentric formulation of Calvin's Case, this meant that the English king had to
respect Scottish law. However, it also meant that the Scottish king (who after all did inherit
England, not the reverse) had to respect English legal ways. While handing King James a
7
political victory over the English Parliament, Coke told him that he could not approach English
governance as a Scot. And the idea that conquered Christians kept their ancient laws also served
his myth of an Ancient Saxon legal order that survived the Norman Conquest.
This first prong of Coke's dicta received much scrutiny by eighteenth-century colonists
and twentieth-century historians exploring whether Coke thought that overseas dominions were
under the control of the king-in-council, who had to govern with the consent of a local
parliament, or the king-in-parliament, meaning the English (later British) Parliament. Coke
collected many precedents for Parliamentary legislation affecting various overseas dominions,
notably Ireland. However, he did not formulate a theory either justifying this power or treating
the examples as exceptions. The irony to grasp here is that Coke identified precedents for
English Parliamentary power to legislate for overseas territories at the same time that he
maintained that common law jurisdiction--the common law as it was then understood--did not
extend outside the realm. A century later, colonists would argue just the reverse, that they
enjoyed common law liberties but were not subject to Parliament's legislation.
The second part of Coke's dicta has received little commentary but was more important,
since it applied to all conquered territories, including North America. The king's subjects, Coke
wrote, "are capable of lands in the kingdom or country conquered, and may maintain any real
[i.e., property] action, and have the like privileges and benefits there, as they may have in
England." Coke did not mean that those emigrants could sue for colonial land in the English
common law courts; their writs stopped at the border. Instead, Coke meant that the king had to
respect the property rights guaranteed under the common law, the rights to inherit and devise
land, for example, or a widow's claim to dower. But he did not specify how the subject would
8
vindicate these rights. Was the king obligated to establish colonial courts along the lines of his
English common law courts? Or would the king hear cases himself, through his governors and
Privy Council? In practice, there was an ambiguous mixture. Formally, the Privy Council
established local executive courts and kept the power to review questions of law itself by writ of
error. But gradually lawyers and judges in those local courts replicated common law rules and
procedures. The right to hold property by common law tenure--the "marrow of English law" as
Coke elsewhere called it--went abroad, even though the jurisdiction of the common law courts
did not.
Here is a large clue to the conceptual transformation Coke catalyzed but did not foresee
completely: the shift from a jurisdictional to a jurisprudential understanding of the common law.
Again, he wrote of the ability to "maintain any real [property] action"; he did not write of a
transcendent common law. But he linked "real actions" and "English privileges and benefits" in
the same sentence. Syntactically and logically, remedy still preceded right, but the right was
being liberated from the jurisdiction in which it had been created. The unsystematic mass of
common law property writs was flowering into rules that could be understood apart from the
courts that originated them. Writs were becoming rights.
The availability of "real actions" may not seem momentous four centuries later. The right
to devise property by will, for example, took centuries to guarantee but is now taken for granted.
Such rights are so ingrained in liberal legal culture that we forget that in the middle ages they
were matters of the king's grace that slowly became routinized into privileges vindicable in the
king's courts, and then spread with the Empire as rights–at least for Britons.
9
III. Coke in the American Legal Mind
The Coke explored here is not the Coke of American legal folklore. That more familiar
Coke appears as a proto-Revolutionary whose jurisprudence supported colonial resistance to
Parliamentary regulation and sowed the seeds of judicial review. Again, there is something to
this myth. Colonial legal thinkers drew on Coke, and his work remained a primary resource for
American law into the early republic. The basic corpus of common law property rights traveled
well in the new lands, not least because they were available in Coke's First Institute, which was
ubiquitous in the British Atlantic world after the Restoration. From the late seventeenth century
until the early nineteenth, Americans learned property law from Coke's treatise without regard to
the court system in which those rules arose, which magnified the conceptual division between
remedy and right, jurisdiction and jurisprudence, the Westminster courts and the common law.
Consequently, Coke's work contributed more to the spread of common law culture than
he could have imagined, let alone intended. American lawyers who invoked Coke did so without
respecting the jurisdictional limits of the common law that for him made it the national law of
England. Coke had contributed to the sense that the core of English law, especially the common
law of property, went abroad, but he never envisioned the common law as a free-floating
jurisprudence that could be invoked, anywhere, as a shield against royal administration. This
jurisdictional limit was lost as his books circulated through the Atlantic world. The medieval
map of courts and dominion borders that Coke sketched in Calvin's Case and the Fourth Institute
was not internalized abroad; powerful statements of the liberties of Englishmen and judicial
"controul" over Parliamentary statutes were. Early Americans encountered Coke's work in an
environment that was close enough to his for basic comprehension and far enough away, in
10
space, time, and political context, to facilitate creative re-interpretation. They were at once
constrained by metropolitan legal institutions and discourses and able to appropriate them for
advantage. Long after Coke's legal and imperial worlds passed, his literature remained. North
American colonists found in it the discourse of resistance and re-constitution.
This approach to the colonial use of the English constitutional canon, which has affinities
with postcolonial studies, differs from the conventional analysis of whether the colonists enjoyed
English law because it raises the threshold problem of how the common law became detached
from its territorial jurisdiction. It also helps connect constitutional history to the new Atlantic
history, in which there has been little sustained study of imperial law, as opposed to colonial law,
much of which is discussed in general terms, and English law, much of which remains opaque to
non-specialists. How and in what directions, for example, did legal culture circulate throughout
the early modern British Atlantic? One might imagine, but only imagine, a study of imperial law
similar to David Hancock's study of British Atlantic trade, with the practitioners of imperial
dispute resolution devising new means to integrate the Empire. Law-minded “citizens of the
world,” however, had less control than the merchants over their particular traffic, as the common
law escaped its national jurisdiction and became a resource throughout the Empire. Substantive
notions of liberty traveled well, like negotiable instruments, and became transatlantic currency
that could be traded anywhere English was spoken. Coke minted most of his currency for
England, but it all circulated wide and far.
In the end, there was a kind of reverse Gresham's law under which the American
colonists appropriated the richest parts of the English constitutional canon for their purposes and
hid away its less valuable legacies. This jurisprudence of liberty could be used many ways:
11
imperial and integrative here, provincial and disintegrating there; liberating in one place and
enslaving in another--liberating and enslaving in some places at the same time. To understand
the legal culture of the Empire and its colonies, we must understand the intellectual
transformation in the idea of law on which colonial resistance was premised: the shift from
jurisdiction to jurisprudence, the rules in a legal system to the rule of law, English liberties to
Liberty. This article has sought to locate one catalyst of that abstraction in the inchoate imperial
jurisprudence of Sir Edward Coke.
12