The English Constitution and the Expanding Empire:
Sir Edward Coke's British Jurisprudence
Daniel J. Hulsebosch*
Assistant Professor
Saint Louis University School of Law
3700 Lindell Boulevard
Saint Louis, MO 63108
(314)977-3308
(314)977-3332 (fax)
hulsebos@slu.edu
© Daniel J. Hulsebosch 2003. Please do not distribute without the author's permission.
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One of the great, unrecognized ironies in Anglo-American constitutional history is that
Sir Edward Coke, the seventeenth-century mythologist of the “ancient constitution”1 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 declared in Parliament in 1628, "meddles with nothing that is done beyond the seas."2 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. In American legal culture, Coke is a champion of the common law,
constitutional liberty, and judicial review. First, eighteenth-century colonists and twentiethcentury historians invoked Coke to support the claim that the English common law and related
liberties migrated to British North American colonies along with British settlers.3 Second, some
historians interpret Coke's opinion in Calvin's Case4 as supporting the Revolutionary claim that
the crown could not govern the American colonists without their consent.5 Third, some colonists
cited Coke's opinion in Bonham's Case6 for the proposition that Parliamentary statutes violating
fundamental law had no effect, and many legal scholars still trace the doctrine of judicial review
back to Coke's claim that courts can declare legislation that violates fundamental law to be
"void."7 There is in short a myth of Sir Edward Coke, and there is much historical reality
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supporting the myth. But that myth also incorporates glosses on Coke's work added in the late
seventeenth and eighteenth centuries to resist imperial regulation and then confirmed by modern
historians. The myth is an example of what John Reid has called "forensic history" – selective
history used to justify predetermined beliefs.8
A popular biography offers an example of Coke's place in American legal folklore:
Sir Edward Coke never set foot on American soil. Yet no United States citizen
can read his story without a sense of immediate recognition. In these
parliamentary struggles, knights, citizens and burgesses fought not for themselves
alone but for states as yet unformed . . . .9
Some legal scholarship rests on a similar premise. Commenting on judicial review, the English
legal historian William Holdsworth claimed that "[t]he Supreme Court of the United States is a
body which safeguards, more effectively than any other tribunal in the world, Coke's ideal of the
supremacy of the law."10 American constitutional historian Edward Corwin similarly maintained
that "Coke came forward with the doctrine of a law fundamental, binding on Parliament . . . .
From his version of Magna Carta . . . to the Bills of Rights of our early American constitutions
the line of descent is direct."11
The thesis that Coke laid the groundwork for American judicial review has received
damaging modern criticism, though it remains true that some of the earliest American adherents
of the doctrine cited Coke for its authority.12 The argument that Coke's work supported the
Revolutionary claim that the colonies were immune from Parliamentary legislation has fared
better. This question, memorably debated by Charles H. McIlwain and Robert Schuyler two
generations ago, received renewed attention at the time of American bicentennial from legal
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historian Barbara A. Black.13 She argued in favor of "the case for the colonists" and concluded
that, at a minimum, there was no decisive orthodoxy on the question within the eighteenthcentury Empire. Black concedes that "Coke certainly spoke to Englishmen," but "by the
eighteenth century these could be found on both sides of the Atlantic; it is time to consider anew
the possibility that the Englishmen who heard him were the Englishmen in America."14 The idea
that Americans understood Coke's jurisprudence better than did the English was pervasive in
early America and remains so. While Coke's focus was on the English nation, his myth became
most powerful on the British Empire's periphery.
The orthodoxy of Parliamentary supremacy and the origins of judicial review, while
hardly settled, have received extensive treatment.15 Thus, the reception of Coke's canon in early
America is not the focus of this article. 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.16 An examination
of Coke's writings about the status of English liberties overseas at the beginning of transatlantic
colonization, rather than what American colonists claimed in the late eighteenth century, forces a
re-appraisal of what Stanley Katz calls "the problem of [American] colonial legal history": was
colonial law an English derivative or an American creation? In other words, what was the
relationship between colonial law and colonial society? 17 A reevaluation of Coke's imperial
jurisprudence in its context helps recast those questions in terms of how common law culture
was packaged for exported, how it circulated through the Atlantic world, and how Englishspeakers drew upon it in concrete controversies. Coke’s work in the early seventeenth century
was critical to Atlantic legal history because at the same time that the English began expanding
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beyond the realm to create what became known as an empire, they also innovated upon old
scripts of fundamental law to define their national constitution--to define the English nation.
Constitutional ideas and imperial expansion developed simultaneously and reciprocally. 18 Coke
participated in both and helped transform the common law from a limited royal legal system into
a national constitutional resource. In so doing, he made parts of it available to all royal subjects
throughout the expanding Empire. Situating Coke's understanding of the relation between realm
and dominions, between English liberties and imperial law, in its early modern context will
enable historians to approach colonial American legal culture free of anachronism and appreciate
its creative eclecticism.
Coke was born in 1552 and served as a member of Parliament, solicitor general, attorney
general, chief justice of Common Pleas, and chief justice of King’s Bench. He wrote extensively
about English law and published most of his works in English, which marked the beginning of
vernacular legal literature in England.19 In addition, his jurisprudence symbolized the
establishment of core common law rights and liberties as constitutional rights and liberties.
Although Coke's obsessive style has always frustrated critics,20 he did seek to transform the
practices of English law and governance into a coherent system of jurisprudence.21 He conveyed
this jurisprudence to future generations of lawyers in the four-volume Institutes of the Laws of
England,22 the prefaces to eleven volumes of Coke's Reports,23 and his own published judicial
opinions, which figure large in his Reports.24 Among these "leading cases" was Calvin's Case
(1608),25 which Coke called "the greatest case that ever was argued in the hall of Westminster"26
and that remains a cornerstone of the Anglo-American law of citizenship.27 In these writings, he
celebrated Parliamentary government and sought to limit the royal prerogative, the crown’s
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discretionary authority outside of common law restraints and outside Parliament. Coke's support
of representative government and judicial power were intertwined; they were two ways of
vindicating legal liberty.28 In sum, Coke's work helped create the Anglo-American idea of a
constitution: a national legal environment anterior to the positive law of kings, their courts, and
legislatures. In this sense, he was a "framer" of the English constitution.
To Americans, the notion of a framer in a legal world without a unitary, written
constitution is difficult to comprehend. But early modern Englishmen used framing metaphors
to describe their legal order,29 and Coke was the most creative constitutional thinker of his day.30
Coke's "frame of the ancient common laws of this realm"31 was a canon of iconic common law
institutions (preeminently the jury), core rules (like an heir's right to inherit property), and
historic statutes (the most famous being Magna Carta). Like all canons, it was dynamic: some
elements dropped off and others were added over time. By the middle of the seventeenth
century, this canon was known as the ancient constitution--though Coke never used that term.32
Coke was this constitution's ablest curator and creator, on and off the bench. 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.33 Through his judicial, literary, and legislative accomplishments, Coke
contributed substantially to Anglo-American notions of the rule of law. Beginning about the
time of the Glorious Revolution, colonists abroad, invoked this canon to oppose imperial
regulation, and by the eighteenth century Coke's ancient constitution was a political coin of the
Empire. 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
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forged the Union.34
However, Coke’s opinion in Calvin’s Case and other writings demonstrate that his
ancient constitution was England's constitution. He never intended it to operate in the other
royal dominions. Coke's bounded conception of common law and English liberty did not
expand, and may have contracted, between Calvin's Case and his death in 1634. Throughout his
life Coke 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 point in time. In the early seventeenth century, the common law was conceived in
primarily jurisdictional terms as the craft wisdom of a particular court system and the legal
community that served it. The "common law" was for Coke still the customary law operative
within the English common law courts, which were courts of limited jurisdiction.35 It was not an
abstract system of jurisprudence exportable to all of the king’s dominions. However, Coke
contributed substantially to the conceptual transformation of the common law from procedural
doctrine for vindicating English legal liberties to a substantive jurisprudence of political liberty.
He catalyzed the creation of a constitutional jurisprudence oriented around "the whole frame of
the ancient common law" and "these ancient and excellent laws of England," which later
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generations called the ancient constitution.36
For the most part Coke limited the authority of those fundamental laws to England. He
did, however, suggest that central elements of common law culture, such as real property tenures
and the right to representative government, might migrate to the king's other dominions. In
Calvin's Case, the royal judges held that the king’s subjects outside England had access to the
common law in the literal sense that they could sue in the English common law courts, but only
for subject matter over which those courts had jurisdiction, like land located in England. They
could not litigate in English common law courts over subject matter in royal territories outside
England. But Coke did consider the predicament of English subjects who traveled to the
colonies and wished to provide them some legal protection, though not the entire constitutional
canon. In judicial dicta here and ambiguous statements there, he suggested that some English
liberties might travel with Britons outside England and into the king's other territories. Coke, an
architect of the Gothic English constitution, also sketched the outline of a minimalist imperial
constitution.
I. Britain's Legal Pluralism and the Constitutionalization of the Common Law
Queen Elizabeth I died without a lineal heir in 1603 and the crown of England descended
to her cousin, King James VI of Scotland. After centuries of war and suspicion, the two
kingdoms were united at the head, though not for another hundred years would there be political
union. In the meantime, two kingdoms, with separate national legislatures, court systems, and
churches, shared one king.37
King James established a commission to recommend reforms that would facilitate trade
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between the two kingdoms, and the commissioners proposed three changes: the abrogation of
"hostile lawes" in each nation targeting the other; the creation of a uniform commercial law; and
the treatment of natural subjects in one nation as natural subjects in the other, a kind of equal
protection measure to ensure that Scots and Englishmen could migrate into either kingdom and
be immune from discrimination on the basis of nationality.38 The union commissioners sent the
proposals to the parliament of each kingdom. The Scottish Parliament accepted them all, but
members of the English Parliament balked at the third: the Commons did not consider Scots to
be English subjects. King James issued a royal proclamation in support of all three proposals
and added, upon the advice of "divers sages of the law," that English law already recognized
Scots as English subjects. While most agreed that people born in one kingdom before James
ascended the English throne (antenati) could not be treated as natural subjects in the other
kingdom, opinion was divided about the status of those born after union (postnati).
A conference committee of leaders of the English House of Lords and Commons
concluded that, under English law, subjects of one kingdom were not automatically subjects of
the other.39 While the king's proclamation "tempered the tongues" of those who opposed the
Commission's proposal, many in Parliament believed that royal advisors (who, Parliamentarians
claimed, were not "judges of the law" but merely "learned in the lawes") had led the king astray:
under the common law, all Scots were aliens rather than natural subjects of England.40
Parliamentarians endorsed expansion but hesitated to treat inhabitants of new territories
as equal to themselves within England. They also feared setting a precedent. Recognizing the
equality of Scots in England, thought M.P. Sir Edwin Sandys, "might give a dangerous example
for mutual naturalizing of all nations that hereafter fall into the subjection of the king, although
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they be very remote, in that their mutual commonalty of privileges may disorder the settled
government of every of the particulars." Each constituent nation of the king's expanding
dominions had its own "privileges" and "birthright," which had been "acquired for patrimony by
their antecessors of that place."41 Again, Parliamentarians favored expansion. Sandys, for
example, was a founding member of the Virginia Company and its leader from 1618 to 1624,
when it was converted into a royal colony.42 But they distinguished the realm of England from
the dominions.43 In part, Parliamentarians feared an influx of poor Scots, a theme that ran
through British political culture for the next two centuries.44 More important, they believed that
reciprocal subjectship would erase jurisdictional borders, which were coming to be seen as
national borders, between the king's multiplying kingdoms.45 According to classical republican
theory, which was just being recovered in England, permitting foreigners to become citizens
weakened a republic and its liberty.46 Indeed, the periphery would exert reverse, negative
influence on England and, by the operation of something like Gresham's law, level down legal
privileges throughout the king's lands: weak notions of liberty would push out strong.47
Overseas dominions, by the example of their governments and through the immigration of their
peoples, might send England into despotism. The realm–the nation–needed insulation.
Two aspects of the Parliamentary protest are notable. First, Parliamentarians presumed
that England was the center of the royal territories and, correlatively, that English law was
superior to the others. They feared that the new Scottish king might view things from a different
perspective. The script of the ancient English liberties was drafted, or at least revised, amidst
uncertainty about whether the foreign king would try to impose a new, regressive legal order on
England.48
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Second, the Houses were not concerned about the legal culture of the territories outside
England. Although English law might be superior to others, it did not operate outside the realm.
Exporting cherished English liberties was no priority. Martial law, for example, was used by the
governors of the Virginia Company at the same time that these same men were decrying its use
at home in England.49 Liberties were national, meaning native, and once earned they became a
form of property: purchased with the blood of ancestors and held in trust for posterity. Other
kingdoms and dominions had their own liberties, or they did not, depending on their own
historical negotiations. Nations existed along a chain of being measured in degrees of liberty50;
each got as much as it deserved. English national identity depended on this constitutional alterity
within and outside the Empire.
If legal pluralism characterized England's emergent empire, it also marked the English
nation itself. James's proclamation and Parliamentary opposition to it reveal that pluralism. No
institution held a monopoly on legal interpretation. The king speaking alone or through his Privy
Council was one interpreter of law, the common law judiciary was another, and Parliament,
embracing the king and two Houses, still one more. A major theme of English legal history is
this struggle among institutions for concurrent or exclusive jurisdiction and to define the law of
England.51 In the fourth volume of his Institutes, Coke drew a "map" of "all the high,
honourable, venerable, and necessary tribunals, and courts of justice within his majesties realms
and dominions": about one hundred English courts and several others in Scotland and Ireland.52
It was imperative for the lawyer to know these boundaries, for
as the body of man is best ordered, when every particular member exerciseth his
proper duty: so the body of the commonwealth is best governed when every
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severall court of justice executeth his proper jurisdiction. . . . [I]f one court
should usurp, or incroach upon another, it would introduce incertainty, subvert
justice, and bring all things in the end to confusion.53
The jurisdictional politics among these "severall courts" reflected all the tensions of Jacobean
England and contributed to the Civil War in the 1640s.54 Indeed, the legal discourse of proper
jurisdiction was a primary language of politics in early modern England and a rich legacy
bequeathed to its colonies.
In addition to these jurisdictional politics, England also contained multiple sources of
law. English law was not a simple body of rules or principles located in a statute book, code, or
treatise. "There be divers lawes within the realm of England," Coke wrote in his Institutes, and
common law was only one of them, though the most important and "sometimes called lex
terrae."55 This label--"law of the land"--was ambiguous. Common law was indisputably the land
law of England. Coke called property law the "marrow of English law" because it determined
the relative rights of landholders at a time when property rights still carried governmental
powers.56 But Coke listed fourteen other types of law beside common law, from "lex coronae,
the law of the crowne," lex mercatoria, and Parliamentary statutes to equity and local customs
that were "reasonable."57
Despite this legal pluralism, common lawyers and Parliamentarians argued in the early
seventeenth century that the common law was "the law of the land" in the broader sense that it
embraced all others.58 The goal was to erect a barrier against absolute monarchy. Common
lawyers feared that Stuart kings might impose the Roman-derived civil law on England. The
threat was actually minimal. There was no such coherent program, and the difference between
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English and continental law was exaggerated.59 Nonetheless the fear helped generate the
political fiction of a timeless legal framework that guaranteed the liberty of the subject.60 At the
core of this constitution were common law institutions, like the jury and secure land tenure, that
provided ballast against royal governance. Common law was the glue of nationhood, a nation
defined as a limited monarchy.61
Eventually, common lawyers succeeded in elevating the common law above other,
mainly royal sources of law within England. In 1611, Coke’s court of Common Pleas held that
the king’s High Commission, which oversaw the ecclesiastical courts, had no power to fine and
imprison. The king expanded the Commission's jurisdiction. Coke also claimed in dicta that the
king could not levy custom dues for revenue alone but only for the public good, a concept he left
undefined, even though customs collection was thought to fall within the king’s prerogative.
James transferred Coke to the more prestigious court of King's Bench, hoping to flatter him into
submission.62 There Coke objected to the conventional practice of providing the king with
advisory opinions in an effort to gain independence from the king. In addition to distancing the
common law courts from the crown, Coke also tried to unify legal authority beneath those courts.
He attacked the jurisdiction of other English legal institutions, from the ecclesiastical courts to
the crown's prerogative, until James finally removed him from judicial office.63
Coke's most important contribution to Anglophone legal culture was to increase judicial
independence from the executive these efforts contributed to the to modern separation of powers
theory, the key element of which was the separation of the judiciary from the executive.64 But
his most famous opinion concerned judicial review of legislative action. In Bonham’s Case,
Court of Common Pleas, of which he was chief justice, held that the common law courts would
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not enforce the London College of Physicians' statutory monopoly over medical practice in the
City.65 The College’s charter gave it the power to enforce its own monopoly, and to the court
this made one of the parties to the cause also its judge.66 The holding was narrow and followed
the familiar maxim that a party could not judge its own cause. But Coke added that "when an
Act of Parliament is against common right and reason, or repugnant, or impossible to be
performed, the common law will controul it, and adjudge such Act to be void," a sentence that
provided grist for those who wished to restrict legislative authority.67
A dozen years after Bonham's Case, Coke was in the Commons advocating for its rights
and powers. His ideas had not simply followed his institutional interests. The Parliamentary act
that Coke curtailed in Bonham's Case merely confirmed royal letters patent to a doctors' guild; it
was the monopoly patent, not the legislation, that offended him: the Houses of Parliament had
merely approved royal policy rather than deliberated upon it.68 Later, Coke partook in the
struggles that led to a shift in the balance of power within Parliament, from the king to
Commons, that changed its self-perception. He now viewed the Commons as a partner with the
courts in the enterprise of identifying fundamental laws and preventing absolutist governance. 69
This strategy paralleled his attempt to gain freedom for the king’s justices by idealizing the
common law. Once again, a gambit to restrain the Stuart monarchy contributed to the
constitutional ideal of separating judicial from executive powers. Coke did not, however,
rigorously separate legislation and adjudication: they were complementary rather than
antagonistic means of identifying fundamental law.
The main reason why common law became the law of the land is that it contained the
land law of England. Property still conferred sovereignty: the holder of land often controlled not
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only the use of that land, but also the activity of its inhabitants. No one "owned" land in the
modern liberal sense. Land was held in a pyramid of proprietorship beginning with the king and
reaching down to the lowliest tenant. Each level in the hierarchy was marked by quasigovernmental privileges according to which the landholder could determine the destiny of those
on the land.70 Even when the crown (mostly though the common law courts) stripped
landholders of many feudal privileges,71 land still represented wealth and symbolized political
independence from the king. Landed men might no longer be political lords; they remained the
political center of gravity.72 Before it ceded its position to contract in the nineteenth century,
property was the real and symbolic foundation of all liberties--of English liberty.73 And property
law was the foundation of the common law.
Landholders were ballast against a king many in the Commons viewed as foreign and
dangerous. Throughout early modern Europe, only natural or naturalized subjects could hold
land in each kingdom. Coke listed several reasons for this restriction. First, aliens might
discover "the secrets of the realm." Second, "[t]he revenues of the realm (the sinews of war, and
ornaments of peace) should [not] be taken and enjoyed by strangers born." Third, alien
landholding would "tend toward the destruction of the realm." It might also endanger "justice":
juries were drawn from freeholders, and if aliens were allowed to hold land, there might not be
enough natural freeholders to fill a jury. At base, the fear was that alien landholders would form
a "Trojan horse" ever "ready to set fire on the common-wealth."74
But were Scots "aliens"? It was an early modern borders debate in which many
Parliamentarians feared that the right to hold land might attract immigrants from the north and
elsewhere. Aliens would become freeholders, and then they would enjoy a host of related
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privileges in the universities, trades, and church.75 If Scots were not aliens, the Scottish king of
England could organize a Scottish faction in the heart of the commonwealth.
II. Calvin's Case: Reciprocal Subjectship and the Limits of English Liberties
The question in Calvin v. Smith was whether a Scotsman born after James inherited the
English throne in 1603 could sue in the common law courts to vindicate title to land located in
England. The case was a collusive effort to reverse the Commons' conclusion that Scots were
not subjects of the English king and settle the legal consequences of the union of crowns. Robert
Calvin was a Scottish infant born after James I’s accession to the English throne. He inherited
land in England, and the English possessors of the land blocked his entry. Calvin’s guardian
brought an action against these men under the assize of novel disseisin, a medieval statute
allowing a plaintiff “recently disseised” of land to sue in the common law courts for
repossession. The Englishmen's defense was that Calvin had no rightful claim because he was
an alien. Calvin's attorneys responded that he was not an alien. A parallel action for another
parcel began in the Chancery courts. Because of the issue's gravity, the king commissioned a
special court composed of the Lord Chancellor and all the judges from the three common law
courts (Exchequer, King's Bench, and Common Pleas) to hear both cases. Everyone agreed that
an alien "can have no real or personal action for or concerning land"76 and that Scots born before
the king of Scotland became the king of England were aliens. The only issue was whether
postnatus Scots were in a different legal position, whether they were not aliens but rather
subjects of the king as an English king.
The court answered affirmatively. Coke's opinion emerged as authoritative because he
published it (and only it) in his Reports, which guaranteed its influence at a time when most
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opinions went unrecorded.77 The court rejected the Englishmen's argument that a subject was
bound to the king's political rather than natural person.78 It instead held that "ligeance" was a
personal bond between the natural subject and the person of the king, not between the subject
and one of the king in his "politick capacity" as head of a particular kingdom.79 Ligeance was a
function of natural law, which Coke claimed was part of the common law, and supported by
precedent:
[I]f the obedience and ligeance of the subject to his sovereign be due by the law of
nature, if that law be parcel of the laws, as well of England as of all other nations,
and is immutable, and that Postnati and we of England are united by birthright in
obedience and ligeance, which is the true cause of natural subjection, by the law
of nature . . . .80
As a result of this bond, Calvin owed loyalty to the king as a natural man, who was both
James VI of Scotland and James I of England. He was "subject to all services and public charges
within this realm, as any Englishman," and in turn enjoyed common law rights to land and access
to the king's courts in England.81 This ligeance was created naturally upon birth within the king's
territory from parents who were under the king's obedience.82 A feudal logic lay behind this
birthright: property was the root of sovereignty and legal authority; it provided the bond between
lord and tenant, king and subject. Reciprocally, the king was bound to protect the property
claims of his subjects on his land.83 Calvin was no alien and could obtain a remedy from the
English common law courts.
The jurisprudential upshot of this holding was that the king's natural subjects in any royal
territory could hold land in England and file suit in the king’s royal courts for that English land,
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unless they were born before the English king obtained that territory. When in England, those
subjects owed obedience to the king as an English king and were entitled to common law rights
in England. But the court did not hold that these subjects enjoyed English liberties in those other
dominions. The king’s "mandatory and remedial writs," which included all common law writs,
did not run to any land outside the realm of England.84 These remedial writs "cannot by any
means be extended into any other kingdom, country, or nation, [even] though it be under the
king's actual ligeance and obedience."85 In contrast, the English king's "mandatory and nonremedial writs," which commanded a subject to return to the realm and answer the king in
person, "are not tied to any place but do follow subjection and ligeance, in what country or
nation soever the subject is."86 In other words, the king-in-council had jurisdiction over all
inhabitants in those other dominions but his common law courts did not. Examples of these nonremedial writs included instructions to English ambassadors abroad and to foreign kings asking
them to protect the person and property of such ambassadors. These extra-territorial writs
reflected European custom, which just then was being denominated the law of nations.87 This
law--a body of custom that transcended national lines--provided a model for Coke to think about
a royal law of free passage and equal protection throughout James's multiple kingdoms. Yet that
law still respected national lines: while subjects coming to England would enjoy English
liberties, English liberties did not follow Englishmen abroad. Coke’s ancient constitution
remained an English constitution, though other subjects of the English king deserved its liberties
and privileges, paramount among which was the right to hold land by common law tenures in
England. This was the holding of the case and no more was necessary for the decision.
The decision seems limited today, amidst claims of human rights and calls for universal
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jurisdiction.88 But the doctrine of ligeance was radical for its time because it encouraged
mobility throughout the king's composite monarchy. Here is the British aspect of Calvin's Case:
a natural subject born in another royal territory, like Scotland or Virginia, could come to England
and if he bought or inherited land there he could sue in the English common law courts to
vindicate his title. This was the meaning of British liberty, and the court made it law despite
Parliamentary fear of immigration. Between the two republican strategies for securing liberty-stability and expansion--the judges leaned toward the latter, and they did so using the feudal
doctrine of ligeance. But English liberty was still for England. In Coke's legal world, remedy
defined right, and the common law's remedial writs went no farther than the English border. A
Scot or a Virginian could not sue in the English common law courts for land in Scotland or
Virginia. For that, he had to resort to a local legal forum, with the right of appeal to the king's
Privy Council. Given this jurisdictional conception of law, no one in the early seventeenth
century interpreted Calvin's Case to mean that the common law and liberties of Englishmen were
exported to the king's other dominions.
However, Coke added obiter dicta to elaborate the decision's ramifications but that did
not constitute the reasons for the decision of the individual judge, let alone of the whole court.89
In that dicta he sketched the outlines of a constitutional jurisprudence for the overseas territories
that helped guide legal development in the Empire. Coke focused on England, but he also
looked abroad. It could not have been otherwise in Jacobean England.
III. Coke’s Imperial Constitution: Consent and Property
Named in memory of the recently deceased Queen, all of London was interested in the
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fortunes of Virginia in the first decade of the seventeenth century.90 Elizabeth had granted a
large swath of territory in North America to Sir Humphrey Gilbert in 1578 and then to Sir Walter
Raleigh and associates in 1584. Raleigh was prosecuted for treason in 1603 by Attorney General
Edward Coke and convicted; his coterie lost the charter, and the territory reverted to the crown.91
Competing groups lobbied for a new grant, one led by Whig Parliamentarian Edwin Sandys and
the other by the resonantly named Raleigh Gilbert. In 1606, James issued a charter to the
Virginia Company, comprising shareholders from both groups. The charter granted the
Company a tract of land in North America that extended 400 miles long north-to-south and from
the Atlantic to the Pacific, along with an additional 100 miles into each ocean to embrace
offshore islands. This enormous colony was viewed by imperial promoters as a "New Britain" to
be settled by both "Scots and English," an offshoot of the newly united kingdoms.92
If the James River settlement was not quite the disaster of that on Roanoke two decades
earlier, the Company did not establish a going concern either. A new voyage, backed by an
enlarged group of joint stock investors, was launched in 1609. Three changes marked the
renewed project. First, the king issued a new charter that gave the Company more autonomy.93
Under this charter, migrants were entitled to the same dividends as investors who remained in
London, labor sharing equally with capital. The second was a sterner approach to the Native
Americans. Third, the governor had more freedom from the London Council and became more a
military than civil figure. He developed by-laws for disciplining the colonists based on the laws
martial.94 Raleigh may not have had, as Coke claimed, a "Spanish heart,"95 but his old colony
was Hispanicizing. This "New Britain" was designed to control the Indians, discipline the
immigrant workforce, and mine precious metals.
20
At the same time that the re-chartered Virginia Company planned its voyage, Robert
Calvin's case made its way through the royal courts. There is no explicit reference to the
transatlantic project in the case; Coke did not, for example, mention North America.96 But he
had drafted the Company's original charter, and his dicta in Calvin's Case contained a
disquisition on the legal relationship between the realm of England and other royal dominions.
That dicta educated lawyers and others trying to comprehend the legal status of the colonies
when they read the case in the Inns of Court or elsewhere in preparation for careers in law,
enterprise, or royal administration.97 For generations, imperial officials and colonists went to
school on Coke's opinion. More immediately, many of the "Virginia adventurers" were
interested in Coke's opinion, so that “[t]he case brought to the cradle of a new Empire the
archives on the old.”98
Three aspects of Coke's ruminations on overseas dominions influenced British legal
culture: his reasoning style; his distinction between inherited and conquered territories; and his
remarks on the legal rights of emigrant settlers. First, Coke used the same sort of reasoning
when analyzing non-English territories that characterized his approach to English law: he
championed the "artificial reason" of the legal community above the natural reason of the
individual.99 In other words, law was custom. The law's reason differed from "the reason of the
wisest man" and could only be grasped "by diligent study and long experience and observation."
A close student of the laws could see that "[t]here be multitudes of examples, precedents,
judgments, and resolutions in the laws of England, the true and unrestrained reason whereof doth
decide this question."100 Those precedents concerned the old Norman provinces, the Channel
Islands, and Ireland.101 Here as elsewhere, Coke engaged in a low level of rationalization, which
21
characterized most attempts to understand the Empire for centuries.102 Today the opinion reads
like a crabbed medieval tract on the king's non-English dominions, and while it read the same to
a few of Coke's contemporaries,103 it remained the most sophisticated legal interpretation of the
British Empire for at least two centuries. Coke's "map" of the empire's jurisdictions was
authoritative; new discoveries had to be fitted within its medieval dimensions.
Second, Coke categorized all overseas territories as either inherited or conquered, a
distinction that derived from Roman law. Inherited lands, like Scotland, enjoyed more legal
autonomy than those obtained through conquest. In those obtained by descent, the king "cannot
change [the] laws of himself, without consent of parliament." Until he changed the laws of an
inherited dominion with "consent of parliament," the laws extant before the inheritance remained
in force.104
Conquered lands were different. Coke subdivided conquered territories into Christian
and infidel. The king could, upon conquest, abrogate the native laws of infidel lands
immediately because they were "not only against Christianity, but against the law of God and
nature." Accordingly, "until certain laws be established among them," the king could govern
infidel lands by “natural equity, in such sort as Kings in ancient time did with their kingdoms,
before any certain municipal laws were given.”105 In contrast, the laws of a conquered Christian
people remained in force until the conqueror changed them. And if he introduced the laws of
England into a Christian land, as John did in Ireland, then “no succeeding king could alter the
same without parliament.”106 The king could change native laws in many ways, but if he chose
to replace them with English laws he restricted his freedom to change them again in the future.
This second aspect of Coke's British jurisprudence has received much commentary in the
22
United States because it relates to the Revolutionary claim that the American colonies were
outside the British Parliament's jurisdiction and could only be governed by the king-incouncil.107 In particular, what Coke meant by the "consent of parliament" has been controverted
for generations. Many historians, following Robert L. Schuyler, believe that Coke was referring
to the English Parliament; if so, Coke was silent about the form of governance within overseas
dominions.108 But Barbara A. Black, who built upon Charles H. McIlwain's constitutional
analysis of the American Revolution, interprets Coke to mean that the king had to rule most of
his overseas colonies with the consent of a local parliament rather than alone or through the
English Parliament.109 "Coke's position," Black argues, "was that of a parliament-man, not a
Parliament-man."110 If so, the Revolutionaries rested on good authority.
A number of inferences are necessary to conclude either that Coke envisioned that the
king would govern his colonies only through a local parliament or that he could govern without
local consent, through the metropolitan Parliament or his Privy Council. The most important
step in "the case for the colonists" is to demonstrate that these alternatives are exclusive. In fact,
Coke detailed several examples in which the king governed alternatively by local parliament and
by Parliament. Ireland, for example, had a local legislature, the Irish Parliament, but was also
subject to the English Parliament when named in its statutes.111 Similar were other conquered
dominions, like the Channel Islands and the Isle of Man.112
Some historians explain these anomalies as the legacy of an earlier, conciliar conception
of the English Parliament. Parliament originated as one of the king's advisory councils, not a
representative legislature for England. As a medieval council, it helped govern non-English
dominions. This conciliar conception faded in the early modern period, particularly during the
23
English Civil War and the Interregnum, but the Parliamentary practice of legislating for some
overseas territories persisted. Those who defend Parliamentary jurisdiction on the basis of
medieval precedents, the argument proceeds, ignore the changing nature of Parliament, which
was no longer a royal council but rather a national legislature. The American colonists, on the
other hand, legitimately reasoned that this new Parliament was restricted to England or, after
1707, Britain.113
Little can be resolved on the basis of Coke's few words on the matter. Given his
jurisdictional orientation, when he stated that the king could make no new law in an inherited
land except with the "consent of parliament," he could well have meant a local representative
body, not the English Parliament. But Coke did not explain which kind of parliament he
intended; and if he meant a local parliament, he did not specify whether this precluded the king
from governing through the metropolitan Parliament. This equivocation, or lack of specificity,
reflected the legal pluralism of early modern Britain. Royal governance through a local
parliament, the metropolitan Parliament, or the Privy Council were not exclusive. While Coke
probably intended to say that the king could not alter the native laws of an inherited kingdom
without the consent of its own local parliament (the Scottish Parliament, for example, in the
inherited kingdom of Scotland), and that the same was true in conquered lands where the king
introduced English law (such as Ireland), he probably envisioned areas of governance not
affecting native laws where the king could govern without local consent and with or without the
metropolitan Parliament. In fact, this approximates the imperial modus vivendi that developed
over the next century.114 Here as elsewhere, Coke was content to list the precedents for
Parliamentary jurisdiction overseas rather than build a theory justifying it, guiding its exercise, or
24
treating the examples as exceptions. Consequently, the historiographical problem of
Parliamentary jurisdiction abroad remains irresolvable not because historians are "asking a
constitutionalist question of a 'pre-constitutionalist' society"115 but rather because there was no
articulate theory behind the practice of Parliamentary jurisdiction overseas and no mechanism for
settling it as constitutional or not. Early modern England was a constitutional society; this is
why Coke and his generation thought that Calvin's Case was momentous. They were, however,
interested in demonstrating that England was a constitutional society. The problem of
Parliamentary jurisdiction overseas was a not a priority, then. Whether or not the king governed
abroad by his Privy Council or through the metropolitan Parliament turned, in practice, on
domestic and imperial politics rather than on constitutional principles located in the writings of
Edward Coke or elsewhere.116
At the dawn of transatlantic colonization, English jurists were less concerned with
mapping the constitutional rights and duties of the center and peripheries of the emergent empire
than with mapping those constitutional rights and duties within the realm of England. In the
Anglocentric formulation of Calvin's Case, Coke's paragraph on the integrity of the legal regimes
of inherited and conquered Christian dominions seemed to counsel the English king to respect
Scottish law and political institutions. However, it also meant that the Scottish king (who after
all inherited England, not the converse) had to respect English legal and political institutions.
While handing King James a political victory over the House of Commons, Coke told him that
he had to respect English legal ways, including its ancient constitution.117 Even when
cosmopolitan, Coke kept England first. He agreed with James that Scottish and English subjects
should enjoy reciprocal rights, but he implied that England was preeminent on the Isle of Britain.
25
He was sympathetic to those English Parliamentarians like Sandys who feared that the union
would endanger the emerging sense of English nationality. The burning legal issue of expansion
was the status of immigrants from the new dominions in England and the effect this immigration
would have on England's constitution. Because they envisioned England as an importer rather
exporter of people, Coke and his generation were less concerned about the rights of Englishmen
who emigrated to the other dominions.
Coke also used the case as an opportunity to bolster the legal fiction for which he is most
famous: the ancient constitution.118 When he wrote that lands inherited by descent retained their
ancient laws, and so too conquered Christian land, he was pleading in the alternative to support
the claim that England enjoyed an immemorial legal order that predated William I's assumption
of the English throne in 1066 and endured that event, whether viewed as a conquest or an
inheritance. Either argument--that William conquered or inherited England--would explain how
the "ancient common laws" of the Anglo-Saxons survived 1066 and were not superseded by
Norman law. Latin charters referring to the jury, sheriffs, Chancery, escheat for treason, and so
on "prove that the common Law of England had been time out of minde of man before the
Conquest, and was not altered or changed by the Conqueror."119 These principles of legal
survival would also explain why the common law extended to Coke’s own day, in the face of
Tudor and Stuart centralization.120 Again, Coke's focus was England and its constitution, not
existing dominions or the projected American colonies.
The irony is that Coke identified precedents for English Parliamentary power to legislate
for overseas dominions at the same time that he and the other English judges maintained that the
common law courts' jurisdiction--the common law as it was then understood--did not extend
26
outside the realm of England. The former was a knotty problem; the latter was not. Soon after
Coke died, colonists began to argue just the reverse: that they enjoyed the common law and the
liberties of Englishmen but were not subject to Parliamentary legislation.121
The third part of Coke's opinion that was intended to, and did, influence the legal culture
of the Empire was his assertion that some of the rights of Englishmen emigrated with natural
subjects (English or other) who settled in newly conquered lands. 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 territory and were not limited to that territory. Here, Coke was on the verge of
recognizing a new kind of imperial subjectship.
The right to parliamentary governance was implicit in the ambiguous dicta suggesting
that the king would, in kingdoms obtained through descent or Christian lands got by conquest,
rule with the "consent of parliament." Again, Coke did not elaborate upon this mandate’s form-council of notables? representative assembly?--but it does seem that he was a "parliament-man."
Emigrant settlers as well as natives in those overseas territories would benefit from the right to
some form of parliamentary rule--whether local or metropolitan.
The property rights strand of Coke's exportable core of English liberty was unequivocal
and more important to the spread of common law culture. All of 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."122
27
Therefore, all emigrants to conquered kingdoms----English or not, those who served in the
conquering army and those who stayed home, "Antenati [as well] as Postnati"--could enjoy the
same secure land tenures that Englishmen enjoyed in England. Coke did not mean that those
emigrants could sue for colonial land in the English common law courts, for Coke made clear
that remedial writs from those courts did not run outside the realm of England, and these
common law property actions were remedial.123
While emigrant Englishmen would not have resort to the common law courts, Coke
intended for the king to respect the emigrants' property rights abroad, the common law rights to
inherit and devise land, for example, or a widow's claim to dower. But he did not specify how
emigrants would vindicate these property rights. Was the king obligated to establish colonial
courts along the lines of his English common law courts to administer common law actions? Or
could the king hear cases himself, through his governors and the Privy Council? In practice,
there was a mixture. Formally, the Privy Council delegated its power to hear disputes to local
executive courts while reserving the right to review questions of law by writ of error.124 In
practice, lawyers and judges in those local courts gradually replicated many common law rules
and procedures.125 The right to hold property by common law tenure--the "marrow of English
law" contained in Littleton's Tenures and glossed in Coke's First Institute--went abroad even
though the jurisdiction of the common law courts did not.
Here is clue to the conceptual transformation Coke catalyzed and that went farthest
fastest in the colonies: the shift from a predominantly jurisdictional to a substantive
understanding of the common law. Again, Coke wrote of emigrants' ability to "maintain any real
action"; he did not write of a transcendent common law. However, he linked "real actions" and
28
"privileges and benefits" in the same sentence. Syntactically and logically, remedy still preceded
right, but the remedy was being liberated from the jurisdiction of the court system in which it had
been created. The unsystematic mass of common law property writs were flowering into rules
that could be understood apart from the executive directives in which they originated. Writs
were becoming rights.126
In fact, Sir Edwin Sandys ushered in a series of reforms for Virginia between 1618 and
1624 the most important of which was the replacement of cooperative tenancy, under which
shareholding farmers received dividends, with individual property tenures along common law
lines.127 Property rules mimicking the common law were good for business; they attracted
emigrants, and they made the Company feel as though it was civilizing far-flung lands.
Coke's outline of an imperial constitution lacked many details. Most curious is the tacit
assumption that there would be dual property systems in the colonies: emigrant British settlers in
conquered Christian lands would enjoy a property regime that mimicked the common law, while
native inhabitants would enjoy their traditional land regime.128 In many colonies, those derived
from conquered non-Christian as well as Christian lands, this too is what developed.129
The availability of "real actions" to vindicate property interests may not seem momentous
four centuries later. Some of those actions never went abroad. It does not appear that advowson
for example, which was the right to appoint a clergyman on one’s property, ever migrated to
North America.130 Others, like the right to devise property by will, emerged gradually but are
now taken for granted, even naturalized.131 These rights are so ingrained in liberal legal culture
that it may be forgotten 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 across oceans
29
with the early modern Empire as rights. John Baker remarks that "[l]iberty and freedom will not
be found as titles in the books of common law before 1600." English lawyers spoke
unsystematically of plural "liberties" and "franchises" as "specific privileges or exemptions"
from royal jurisdiction.132 Baker concludes that the general concept of liberty, of freedom writ
large, "developed through the cumulative effects of decisions which were not widely known to
outsiders and became unknown to posterity save through laborious research."133 Through time
the controversies that gave rise to those cases, and even their holdings, were forgotten; the
abstracted meanings, detached from their germinal context, gained clarity and were
remembered.134 In Coke's report of Calvin's Case, English common law liberties began to escape
their jurisdictional matrix and started to become a jurisprudence of British liberty. He initiated
this process of abstraction; later generations appropriated his handiwork for their own purposes.
A major reason for this abstraction was the substantive gloss that Coke placed on English
law. The cases he reported were subtle and slow to yield general principles. But the idea that
law was principled was an important prerequisite to the creation of a new conception of common
law as the national repository of constitutional rights.135 In the didactic prefaces to his Reports,
Coke frequently used property law metaphors to explain the purpose of his publishing project:
"the ancient and excellent laws of England are the birthright, and the most ancient and best
inheritance that the subjects of this realm have, for by them he enjoyeth not only his inheritance
and goods in peace and quietness, but his life and his most dear country in safety."136 Later, in
the Parliamentary debate over the Petition of Right, Coke invoked a series of "fundamental laws"
demonstrating that the king could not take property from or imprison his subjects without due
process of law, and the last was the boldest: "the common law hath so admeasured the King's
30
prerogative, as he cannot prejudice any man in his inheritance; and the greatest inheritance a man
hath is the liberty of his person, for all others are accessory to it."137 The right of inheritance was
vindicable in common law courts, and on this analogy the king could not take away a person's
liberty in a general sense. Once more Coke used a property maxim about a right to vindicate
inheritance to speak broadly about political liberty. The metaphor of liberty as property--a
birthright--circulated through the Empire with Coke's writings, with unintended consequences.138
Coke believed that there should be a legal distinction between the conquered aborigines
and English settlers who migrated to that conquered colony; this is why he stated that English
emigrants who settled in conquered lands should enjoy common law property tenures. Coke
never applied his dichotomy to America, but he would have categorized Virginia as conquered.
It was not an inherited dominion, and he wrote against the background of the Virginia
Company's stern new policy toward the Indians, which approximated conquest.139 However, as
the colonies matured, many Britons began to view colonization as the peaceful displacement of
those who failed to cultivate the land rather than as a conquest.140 Some also wished to claim the
benefit of English laws abroad to restrain royal government. Beginning in the late seventeenth
century, they carved out a third category of royal territory: lands obtained by plantation or
"settlement."
The concept of settlement appeared rather suddenly in English law. It drew on the
Civilian principle of res nullius141 and may have derived in part from John Locke's contemporary
writings on the labor theory of property. "In the beginning," Locke wrote, "all the world was
America," meaning that it was "wild woods and uncultivated wast[e] . . . without any
improvement, tillage or husbandry."142 Those who labored to settle such land gained rights over
31
it. It took little more to argue that English liberties were conveyed along with title. For many,
the doctrine of settlement helped justify and explain the development of common law institutions
abroad better than could Coke's theory of conquered lands.143 Today many historians assume
that the colonies were settled plantations rather conquered lands.144 To support the proposition,
they cite judicial dicta and opinion letters in the records of the Privy Council from the late
seventeenth and early eighteenth century. These opinions prove that settlement was added as a
third category of crown dominions alongside Coke's categories of inherited and conquered lands.
But settlement was too much of a historical fiction to succeed as a legal fiction. North America
did not satisfy the prerequisite for settlement: it was inhabited when "discovered." While for
Locke land might be inhabited and yet remain an unappropriated waste, British judges were
reluctant to apply the legal doctrine of settlement to inhabited American lands.
The legal doctrine of settlement appeared first in Craw v. Ramsey, a 1681 case in King's
Bench. Like Calvin's Case, Craw explored the legal status of Scots in other dominions of the
English king--this time in Ireland. The Irish Parliament had enacted a statute in 1625 that
naturalized all Scottish antenati in Ireland, and the question was "[w]hether a naturalization in
Ireland will naturalize the person in England?"145 The answer was no:146 naturalization in
Ireland had no effect in England because, Chief Justice of Common Pleas John Vaughan opined,
"Ireland was subordinate to England, and therefore cannot make a law obligatory to England. . . .
[I]t is a contradiction that the inferior, which is civilly the lessor power, should compel the
superior, which is the greater power."147 Again, Ireland was "a dominion belonging to the
Crown of England";148 it was not a separate and equal realm. Irish laws were, in England, the
mere expression of royal government in Ireland, and if the king could not naturalize persons in
32
England except through the English Parliament, then he could not do so indirectly through his
Irish government.149 In restating his holding, Vaughan maintained that "no laws made in any
other dominion acquired by conquest, or new plantation, by the King's lieutenants, substitutes,
governours, or people there, by vertue of the King's letters patents, can make a man inherit in
England, who could not otherwise inherit . . . ."150 The dictum about "new plantations,"
unnecessary because Ireland was conquered, released the concept of settlement into English law.
Over the next few decades, the doctrine of settlement circulated widely and received
acceptance as a third way to obtain dominions. Advocates developed the doctrine to defend
colonists against local royal administrators, though not successfully. Interestingly, colonial
advocates usually invoked settlement to argue that Parliamentary statutes rather than unenacted
common law rules were effective in the dominions: the English laws that supposedly traveled
with Englishmen included English statutes.
John Holt endorsed the doctrine when he was Chief Justice of King's Bench in the last
decade of the seventeenth century but never applied it to any colony. When the plaintiffs in
Blankard v. Galdy claimed that Jamaica and Virginia were settled colonies, Holt observed that
the crown got both by conquest; both were inhabited when Englishmen arrived.151 The Jamaican
case involved an English statute forbidding the sale of offices. The plaintiff's attorney conceded
that Jamaica had been conquered from the Spanish. Nonetheless, he thought it "unreasonable
that Englishmen should lose their laws by the conquest of a nation, which laws are their
birthright, and which they carry with them wherever they go." He argued that Englishmen now
possessed this conquered land, and their laws--English laws--ought to remain in force "till the
King shall think convenient to make any alteration," per Coke's doctrine of conquest. 152 Holt's
33
court disagreed. Because Jamaica was a conquered province, "[t]he laws by which the people
were governed before the conquest of the island do bind them till new laws are given, and Acts
of Parliament made here since the conquest do not bind them unless they are particularly
named."153 The court relied on a recent House of Lords decision that a plaintiff could not sue a
colonial official in the Westminster Courts for an alleged case of false imprisonment in
Barbados. He had to sue in the colonial courts and then the Privy Council because (in the words
of the defendant's attorney) the claim was "not conusable here in Westminster-hall; that [the
official] was only censurable by the King."154 The Lords rejected the plaintiff's argument that
Barbados was a "new Settlement of Englishmen by the King's Consent in an uninhabited
Country" along with the claim that "there's no Reason why the English Laws should not follow
the Persons of Englishmen."155
The Virginia case arose when a purchaser defaulted on a contract made in London to buy
a slave in Virginia. When the seller sued to enforce the agreement in King's Bench, the
purchaser responded that a sale contract for a slave was not enforceable in England because there
was no law recognizing slavery in England. Chief Justice Holt famously stated that "as soon as a
negro comes to England, he becomes free."156 But he added that the plaintiff "should have
averred in the declaration, that the sale was in Virginia, and, by the laws of the country, negroes
are saleable; for the laws of England do not extend to Virginia, being a conquered country their
law is that the King pleases."157 A contract for sale of a slave that was consummated in Virginia
was a valid subject of suit in England.
The best known expression of the idea that English law traveled with Englishmen was the
opinion letter of Richard West, a counsel to the Privy Council. In 1720, West advised the
34
Council that "let an Englishman go where he will, he carries as much of law and liberty, as the
nature of things will bear." He added that "the Common Law of England, is the Common Law
of the Plantations, and all statutes in affirmance of the Common Law passed in England,
antecedent to the settlement of a colony, are in force there, unless there is some private Act to the
contrary."158 Similarly, the Master of the Rolls in Chancery reported that in 1722 the Privy
Council decided that when English subjects settled uninhabited lands they brought English law
with them as their birthright. Apparently Barbados fitted this description, though the House of
Lords had thought otherwise thirty years earlier in Blankard v. Galdy.159 But it is unclear what
this latter case was about.160 These bold statements were not supported by the common law or
Privy Council tradition.161 Nevertheless, they circulated widely in the Atlantic world. The latter
opinion, for example, was first published in the 1740s in a collection of high court opinions that
"enjoyed great reputation both in England and overseas."162 It was later reprinted in George
Chalmers' nineteenth-century collection of imperial precedents, which in turned has influenced
modern historians.163
At the center of the common law world, these fragmentary opinions had little influence.
The most prominent eighteenth-century English jurists continued to categorize the American
colonies as conquered lands. Sir William Blackstone, whose Commentaries on the Law of
England were read throughout the Atlantic world, maintained that the American colonies were
"conquered or ceded countries" and "therefore the common law of England, as such, has no
authority there; they being no part of the mother country, but distinct (though dependent)
dominions." He accounted for any resemblance by supposing that the colonists had "copied the
spirit of their own law from the original" and declared that they remained "subject . . . to the
35
control of parliament."164 Lord Mansfield, as Chief Justice of King's Bench, also assumed that
most of the American colonies were obtained by conquest but added a peculiar gloss: these lands
might become settlement colonies once the conquered population died off or fled. The crown
would then have to govern the emigrants under English laws fitted to the new circumstances,
"which every colony, from necessity, is supposed to carry with them at their first plantation."165
Although the crown could tax conquered lands by its prerogative and without concurrence of any
representative body, it could tax settlements only through a parliament. But Mansfield did not
require that it be a local parliament, and his vigorous support of British Parliamentary regulation
of all the American colonies demonstrates that for him any parliament would suffice.166
These English sources show that the third category of settlement plantations was
established in the repertoire of legal argument after the Restoration, but no institution of the
imperial government ever decided that any American colony fitted into that category.167 Most
early modern English jurists, such as Chief Justices Vaughan, Holt, and Blackstone, categorized
the American colonies as conquered lands. Few believed that the colonies enjoyed the common
law by right. Even those who maintained that the colonists did enjoy English law thought that
only those parts fitted to colonial circumstances went abroad, an uncertain qualification that
included Parliamentary statutes enacted before and some after colonization.
Similar to the emergent category of settlement colonies was the common charter
guarantee of the liberties of Englishmen. Most colonial charters or letters patent contained a
clause guaranteeing that emigrant settlers and their children, in the words of the first Virginia
charter, "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
36
Realm of England, or any other of our said Dominions."168 Some eighteenth-century colonists
read this "liberties" clause as an funnel for the emergent English constitutional canon, a promise
that colonists would enjoy all the liberties and privileges abroad that Englishmen had at home.169
But, viewed in its early modern context, it meant rather less. The liberties clause was probably
designed to answer the question that arose in Calvin's Case: what was the status of residents of
other dominions when they immigrated into England? The clause ensured that the king's
subjects who emigrated abroad and their offspring would be treated as English subjects if they
returned to England. It, like Calvin’s Case, mandated equal treatment of all the king’s natural
subjects within England, regardless of birthplace. The same may have been true in the other
dominions too. As such, the liberties clause could have functioned like the modern American
right to travel and guaranteed subjects of the English king the same rights as native subjects in
any dominion.170 More liberally, the clause might have meant that some rights, like the right to
common law tenures, traveled with English emigrants, as Coke claimed in his Calvin's Case
dicta.171 But this is the outer limit of the liberties clause under any original understanding. It did
not mean that an Englishman would enjoy the full panoply of English liberties in every royal
territory, or that a subject who migrated to dominion B could there enjoy the liberties granted in
his native dominion of A. In fact, while most colonies developed land tenure systems similar to
that of the English common law, there were many local variations. It was never clear that a
property owner, say a slave owner, in a dominion that permitted slavery could fully enjoy his
right to that property in another dominion where slavery was not recognized by local positive
law.172
Similar to the charter clause guaranteeing English liberties was that granting colonial
37
governments local legislative power but forbidding them to make ordinances "repugnant" to the
laws England.173 Some historians interpret these clauses to mean that the colonial governments
had to operate pursuant to recognizable forms of English law, perhaps the common law.174 That
is not correct. Instead, the repugnancy clause defined, in vague terms, the limit of acceptable
governance and provided the legal basis for Privy Council review of colonial statutes, the vast
majority of which were upheld even though some of these colonial laws were more restrictive
and others more protective of property rights than English law.175 The constitutional content of
"repugnancy" was never clear because the Council did not explain why it invalidated colonial
statutes, and the practice generated little coherent doctrine. It did not convey English law to the
colonists.176
There is a final irony in Coke's attempt to relate the English constitution to the new
Empire. Late in his life, during the tumultuous Parliament of 1628, Coke helped draft the
Petition of Right. The Commons' grievances included imprisonment without cause shown, nonparliamentary taxation, billeting of troops, the application martial law to civilians, and abuses by
deputy lieutenants.177 All of these were defined as violations of the rights of Englishmen. The
Petition was presented as a declaration of fundamentals, but like most such instruments was
more creative than declaratory.178 It was bold, too bold for export, as Coke realized. A
colleague asked him during the debate on the Petition whether the declaration that the king could
not impose martial law on English civilians would extend to the overseas colonies, where martial
law had been applied.179 Coke assured the Commons that the Petition would not affect the
colonies because it dealt with common law rights, and "[t]he common law meddles with nothing
that is done beyond the seas."180 His response merely confirmed the jurisdictional connotation of
38
common law. But it also suggested a reluctance to treat English common law rights as British
rights. Perhaps his qualification was calculated to limit the reach of these new rights dressed in
ancient clothing, a negotiating strategy to allow the crown to accept in England that which no
one thought it could grant abroad. In any case, it confirmed what most Englishmen at the time
took for granted: the common law was a local system of law becoming a national treasure; it was
not a body of rights available to all the king’s subjects anywhere in the emergent Empire.
It was not time in 1628 to put forth a program of British liberty for all of the king's
territories, at least it was not in Coke's interest to do so.181 His outlook was even more English
and less British in that ominous year than two decades earlier. The English constitution had
emerged simultaneously with the Empire and helped guarantee some measure of liberty in the
overseas dominions. But it was also defined against the dominions. This English legal
nationalism was a response to imperial expansion and it, along with the absence of a binding
British law, would contribute to the Civil War several years later.182
Jurists in the first British Empire never developed a coherent body of imperial law or
liberties. The Empire remained a byzantine network of territories, jurisdictions, institutions, and
peoples, which hindered the emergence of a unitary imperial law. England had developed from
similar unsystematic expansion and this did not prevent the emergence of a binding, national
common law, which Coke’s jurisprudence symbolized.183 Time may just have run short, at least
to keep thirteen of the North American colonies in the Empire. The lesson was learned among
them, as legal thinkers in the early United States forged federal constitutional law and some
national private law too.184 Indeed, Coke's writings, and the Revolutionary image of him a
firebrand of liberty, contributed to the national legal culture of the United States.
39
Conclusion: 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 heavily on Coke, especially in the generation before the
Revolution, and his work remained a primary resource for American law into the early
republic.185 Typically we are told that some English laws were adopted, other adapted, and many
abandoned before and after the American Revolution, which is true yet unsatisfying.186
Determining which parts were, where, and why requires intensive local studies of the colonial
legal systems, of which we have few.187 A host of demographic, religious, environmental, and
political factors were at work in these individual stories of reception and reconstruction. But 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 English-speaking
Atlantic world after the Restoration.188 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 English law, especially the common law of
40
property, went abroad, but he never envisioned the common law as a free-floating jurisprudence
that could be invoked as a shield against royal administration. This jurisdictional limit on Coke's
jurisprudence 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 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.189
Long after Coke's legal and imperial worlds passed, his literature remained. American lawyers
found in it, more than in natural jurisprudence or other law, the discourse of resistance and reconstitution.
This approach to the colonial use of the English constitutional canon, which has affinities
with postcolonial studies,190 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. For the colonists to claim the common law, they had to
conceive it as an abstract jurisprudence operative in all of the crown's dominions, not as a system
of licenses to sue in territorially-bounded courts. Substantive notions of liberty traveled well,
like negotiable instruments, and became transatlantic currency that could be traded anywhere
English was spoken.191 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
41
colonists appropriated the best of the English constitutional canon for their purposes and hid
away its less valuable legacies. This jurisprudence of liberty could be used many ways: 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.192 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.
42
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 (New York:
Cambridge University Press, 1987).
2.
Commons Debates, 1628, ed. Robert C. Johnson, et al., 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 born within any territory held by the King of England were to enjoy the benefits of
English law as subjects of the King.").
4.
A Complete Collection of State Trials, comp. T. B. Howell, 34 vols. (London 1816-28),
2:559; 77 Eng. Rep. 377 (1608).
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; Charles H. McIlwain, The
American Revolution: A Constitutional Interpretation (New York: Cornell University Press,
1923).
6.
77 Eng. Rep. 646 (1610).
7.
See, e.g., James R. Stoner Jr., Common Law and Liberal Theory: Coke, Hobbes, and the
43
Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992), 61-62;
Randolph G. Adams, Political Ideas of the American Revolution: Britannic-American
Contribution to the Problem of Imperial Organization, 1765-1775 (Durham, N.C., 1922), 141.
8.
John Phillip Reid, "Law and History," Loyola of Los Angeles Law Review, 27 (1993):
193-223.
9.
Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward
Coke (Boston: Little Brown, 1956), x.
10.
William Holdsworth, Some Makers of English Law (Cambridge, England: Cambridge
University Press, 1938), 131.
11.
Corwin, The "Higher Law" Background of American Constitutionalism (Ithaca, 1955),
56-57.
12.
Compare Samuel E. Thorne, "Dr. Bonham's Case," Law Quarterly Review, 54 (1938):
543-52, with Charles M. Gray, "Bonham's Case Reviewed," Proceedings of the American
Philosophical Society, 116 (1972): 35-58; T. F. T. Plucknett, "Bonham's Case and Judicial
Review," Harvard Law Review, 40 (1926-27): 30-70. Bonham’s Case has received much
modern interest because it provides a precedent, however questionable, for an institution that
originated as a hybrid of politics and law. Nonetheless, Coke's opinion in Bonham's Case was
one of several sources contributing to the evolving doctrine of judicial review. Julius Goebel Jr.,
44
History of the Supreme Court of the United States, Volume 1: Antecedents and Beginnings to
1801 (New York: Macmillan, 1971), 92-94, 134, 140; Larry D. Kramer, “Foreword: We the
Court,” Harvard Law Review, 114 (2001), 30-31.
13.
Compare Black, "The Case for the Colonists," and McIlwain, The American Revolution,
with Robert L. Schuyler, Parliament and the British Empire: Some Constitutional Controversies
Concerning Imperial Legislative Jurisdiction (New York: Columbia University Press, 1929), 139.
14.
Black, “The Case for the Colonists," 1175. See also Stoner, Common Law and Liberal
Theory.
15.
See, e.g., Black, “The Case for the Colonists”; the sources cited in note 12, above.
16.
Jack N. Rakove helpfully distinguishes among original meanings (contemporary
definitions of key words), intent (the design of the framers), and understanding (how others
comprehended the handiwork of the framers) in his study of the American federal constitution.
Rakove, Original Meanings: Politics and the Ideas in the Making of the Constitution (New York:
A. A. Knopf, 1996), 7-11.
17.
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.
45
18.
I explore this mutual causation in Constituting Empire: New York and the
Transformation of Constitutionalism in the Atlantic World, 1664-1830 (University of North
Carolina Press, forthcoming). For the gradual conceptualization of the overseas projects as an
empire, see David Armitage, The Ideological Origins of the British Empire (Cambridge,
England: Cambridge University Press, 2000).
19.
Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago,
1992), 63-104. See also William S. Holdsworth, William S. Holdsworth, A History of English
Law, 17 vols. (London: Methuen, 1903-72), 5:456-90. 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.
While there are many articles on Coke's jurisprudence, the best biography remains Bowen, The
Lion and the Throne. See also G. P. M., "Coke, Sir Edward," in The Dictionary of National
Biography, vol. 4 (Oxford: Oxford University Press, 1917), 685-700; Holdsworth, History of
English Law, 5:425-56.
20.
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.
21.
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
46
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.
22.
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.
23.
Volumes 12 and 13 were published posthumously without prefaces. Plucknett, "The
Genesis of Coke's Reports," 211.
24.
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 & Son, 1826). On the development of
reporting, see generally J. H. Baker, introduction to The Reports of Sir John Spelman, vol. 2
(London: Selden Society, 1978), 164-78.
25.
State Trials, 2:559. On the significance of "leading cases," see A. W. B. Simpson,
Leading Cases in the Common Law (New York: Clarendon Press, 1995).
26.
Coke, preface, 7 Reports iii.
27.
James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill:
University of North Carolina Press, 1978), 16-28; Price, "Natural Law and Birthright Citizenship
47
in Calvin's Case."
28.
See text at note 64, below.
29.
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): 1104-05.
30.
Pocock, Ancient Constitution; Glenn Burgess, The Politics of the Ancient Constitution:
An Introduction to English Political Thought, 1603-1642 (University Park: Pennsylvania State
University Press, 1992). 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. Pocock, Ancient Constitution, 261 n.8.
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; 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 Press, 1993), 22-56.
31.
Coke, preface, 9 Reports iv.
32.
See generally J. W. Gough, Fundamental Law in English Constitutional History, new ed.
(Oxford: Clarendon Press, 1961).
48
33.
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).
34.
See Stoner, Common Law and Liberal Theory; J. C. D. Clark, The Language of Liberty,
1660-1832: Political Discourse and Social Dynamics in the Anglo-American World (Cambridge,
England: Cambridge University Press 1994).
35.
See J. H. Baker, An Introduction to English Legal History, 3d ed. (London, 1990), 14-62.
36.
Coke, preface to The Ninth Part of the Reports of Sir Edward Coke, ed. John F. Fraser
(London, 1826), iv; Coke, preface, 8 Reports xviii. Cf. Liam S. O'Mellin, "The American
Revolution and Constitutionalism in the Seventeenth-century West Indies," Columbia Law
Review, 95 (1995): 104-59, 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").
37.
See Bruce R. Galloway, The Union of Scotland and England, 1603-1608 (Edinburgh: J.
Donald, 1986); Brian P. Levack, The Formation of the British State: England, Scotland, and the
Union, 1603-1707 (Oxford: Clarendon Press, 1987); A Union for Empire: Political Thought and
the British Union of 1707, ed. John Robertson (Cambridge, England: Cambridge University
Press, 1995).
49
38.
Kettner, Development of American Citizenship, 16-28; Price, "Natural Law and
Birthright Citizenship in Calvin's Case," 73-145.
39.
"Moore's Report," State Trials, 2:562-63. 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.
40.
State Trials, 2:563.
41.
State Trials, 2:564.
42.
Theodore K. Rabb, Jacobean Gentleman: Sir Edwin Sandys, 1561-1629 (Princeton:
Princeton University Press, 1998), 319-85; Wesley F. Craven, The Dissolution of the Virginia
Company: The Failure of a Colonial Experiment (New York: Oxford University Press,1932), 81
ff.
43.
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 English political nation never precluded enthusiasm for
colonies. Commonwealthmen like James Harrington, for example, retained a role for the empire
in their ideal scheme. See James Harrington, The Commonwealth of Oceana; and, A System of
Politics, ed. J. G. A. Pocock (1652; reprint, New York: Cambridge University Press, 1992), 11,
50
16-17, 217-228
44.
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.
Cobbett's Parliamentary History of England, vol. 1 (1806), 1062 (remarks of Mr. Fuller in 1606
debate). See also Cobbett’s Parliamentary History, 1:1087 (Francis Bacon’s reply), and
generally, Linda Colley, Britons: Forging the Nation, 1707-1837 (New Haven: Yale University
Press, 1992), 117-22.
45.
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 Politicians and Virtuousi: Essays in Early Modern
History (London: Hambeldon Press, 1986), 1-25.
46.
See Armitage, Ideological Origins of the British Empire, 128.
47.
See Raymond A. De Roover, 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, Mass.: Harvard University Press, 1949).
48.
See Burgess, Absolute Monarchy and the Stuart Constitution.
51
49.
Craven, Dissolution of the Virginia Company, 37; Edmund S. Morgan, American
Slavery/American Freedom: The Ordeal of Colonial Virginia (New York: Norton, 1975), 79-80.
At home, the crown's use of martial law on civilians led to a grievance in the 1628 Petition of
Right. The Stuart Constitution: Documents and Commentary, ed. J. P. Kenyon (Cambridge,
England: Cambridge University Press, 1966), 83-84; Lindsay Boynton, "Martial Law and the
Petition of Right," English Historical Review, 79 (1964): 255-84. By that time, however, martial
law had been abandoned in Virginia. Craven, Dissolution of the Virginia Company, 70.
50.
For the prevalence of chain of being metaphor in early modern England, see Arthur O.
Lovejoy, The Great Chain of Being: A Study in the History of an Idea (Cambridge, Mass.:
Harvard University Press, 1936); W. H. Greenleaf, Order, Empiricism and Politics: Two
Traditions of English Political Thought (Westport, Conn.: Greenwood Press, 1980).
51.
See S. F. C. Milsom, Historical Foundations of the Common Law, 2nd ed. (London:
Butterworths, 1981), 11-36.
52.
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. 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.
53.
Coke, proeme, Fourth Institute.
52
54.
See Margaret A. Judson, The Crisis of the Constitution: An Essay in Constitutional and
Political Thought in England, 1603-1645 (New Brunswick: Rutgers University, N.J., 1949).
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.
55.
Coke, The First Part of the Institutes of the Laws of England, 18th ed., ed. Francis
Hargrave and Charles Butler, 2 vols. (London, 1823), 11b (originally pub. 1628).
56.
Coke, preface, 10 Reports xxviii.
57.
Coke, First Institutes, 11b. See also John Davies, The Question Concerning Impositions,
Tonnage, Poundages . . . Fully Stated and Argued from Reason, Law and Policy (London, 1656),
2-3. See also Judson, Crisis of the Constitution, 246; Louis Knafla, Law and Politics in Jacobean
England: The Tracts of Lord Chancellor Ellesmere (Cambridge: Cambridge University Press,
1977), 164-67.
58.
Harold J. Berman, "The Origins of Historical Jurisprudence: Coke, Selden, Hale," Yale
Law Journal, 103 (1994): 1651-1738.
59.
Compare F. W. Maitland, English Law and the Renaissance: The Rede Lecture for 1901
(Cambridge, England: Cambridge University Press, 1901), with J. H. Baker, "English Law and
the Renaissance," in The Legal Profession and the Common Law: Historical Essays (London:
53
Hambledon Press, 1986), 461-76.
60.
Helgerson, Forms of Nationhood, 66-67.
61.
Among other limitations, this common law world view de-emphasized 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; Burgess, Ancient Constitution;
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.
62.
Bowen, Lion and the Throne, 370-90.
63.
For these controversies between Coke and the king, see F. W. Maitland, The
Constitutional History of England (Cambridge, England: Cambridge University Press, 1920),
268-71; William Holdsworth, Some Makers of English Law (Cambridge, England: Cambridge
University Press, 1938), 127-31; Bowen, Lion and the Throne, 277-390.
64.
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); Stewart Jay, Most Humble Servants: The Advisory Role of Early
Judges (New Haven: Yale University Press, 1997), 173-76.
65.
77 Eng. Rep. 646 (1610).
66.
"The censors cannot be judges, ministers and parties: judges to give sentence or
54
judgment; ministers to make summons; and parties to have the moiety of their forfeiture . . . ."
11 English Reports 646, 652.
67.
77 Eng. Rep. at 652.
68.
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.
69.
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"). 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).
70.
A. W. B. Simpson, A History of the Land Law, 2d ed. (Oxford: Clarendon Press, 1986);
Robert C. Palmer, "The Feudal Framework of English Law," Michigan Law Review, 79 (1981):
1130-64.
71.
See S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge:
Cambridge University Press, 1976).
55
72.
See James Harrington, Oceana in The Political Works of James Harrington, ed. J. G. A.
Pocock (Cambridge: Cambridge University Press, 1977). Cf. R. H. Tawney, The Agrarian
Problem in the Sixteenth Century (New York: Harper & Row, 1967), 192-93.
73.
See John Phillip Reid, The Concept of Liberty in the Age of the American Revolution
(Chicago: University of Chicago Press, 1988), 68-73.
74.
Calvin's Case, State Trials, 2:640.
75.
Cobbett's Parliamentary History, 1:1082-83.
76.
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.
77.
A short report appeared in the late seventeenth century in Moore's Reports, and a more
complete report, which contained the opinion of Lord Chancellor Ellesmere, appeared in the
nineteenth century. State Trials, 2:559-696.
78.
The classic study is Ernst H. Kantorowicz, The King's Two Bodies: A Study in
Mediaeval Political Theology (Princeton: Princeton University Press, 1957).
79.
State Trials, 2:624.
80.
State Trials, 2:632.
56
81.
State Trials, 2:44-45.
82.
Ligeance was spatial, temporal, and genetic. First, the parents of the person had to be
"under the actual obedience of the king" at the time of birth. Second, the person had to be born
"within the king's dominion." (There was an exception for those born to Englishmen, such as
military and diplomatic personnel, serving abroad.) Third, time distinguished antenati from
postnati: "for he cannot be a subject born of one kingdom that was born under the ligeance of a
king of another." State Trials, 2:639-40. In his Institutes, Coke noted an exception for
constitutional changes in the monarchy. D. M. Jones, "Sir Edward Coke and the Interpretation of
Lawful Allegiance in Seventeenth-Century England," History of Political Thought, 7 (1986):
331.
83.
Aliens could become subjects or denizens with the right to hold land. Naturalization was
by act of Parliament; endenization was by the king alone and conveyed fewer rights. However,
naturalization in one of the king's dominions beyond England did not transfer into his other
dominions. If you were naturalized by the Irish Parliament or in the American colonies, for
example, you were not an English subject who could hold land in England. Craw v. Ramsey,
174 Eng. Rep. 1072 (1670). A 1740 Act of Parliament permitted colonial naturalization to have
effect throughout the Empire upon Board of Trade review. Kettner, Development of American
Citizenship, 103. Naturalization in England did entitle one to hold land in overseas territories.
84.
The exception was Ireland: writs of error ran from the Irish courts to the English court of
57
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.
85.
State Trials, 2:643.
86.
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. Chief
Justice John Vaughan later clarified the distinction by defining the remedial writs as those
vindicating "the particular rights and properties of the subject" and that did not issue to
dominions beyond England because "they have their particular laws, [and] consequently they
must have their particular mandates or writs to order them." John Vaughan, Process into Wales,
124 Eng. Rep. 1130, 1132 (1706). 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, 3 vols. (New
York: New York University Press, 1937), 2:410.
87.
See 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 Michigan, 1999), 89-107.
88.
See, e.g., The Princeton Principles on Universal Jurisdiction (2001), www.
princeton.edu/~lapa/unive_jur.pdf
89.
Though Coke claimed that he provided "the right understanding" of the holding and that
58
there was little "variety of opinions" among the judges. State Trials, 2:7, 48.
90.
See D. G. James, The Dream of Prospero (Oxford: Clarendon Press, 1967), 83-88.
91.
See Bowen, The Lion and the Throne, 190-217, 343.
92.
[Robert Johnson,] Nova Britannia: Offering Most Excellent Fruites by Planting in
Virginia (London, 1609).
93.
Coke, then a judge on Common Pleas, did not draft the new charter.
94.
The code was entitled the "Lawes Divine, Morall, and Martiall"--"mostly martial,"
quipped historian Edmund S. Morgan. Morgan, American Slavery/American Freedom, 79. See
also Wesley F. Craven, The Southern Colonies in the Seventeenth Century, 1607-1689 ([Baton
Rouge]: Louisiana State University Press 1949), 81, 85-87; 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. 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, and generally Stephen S. Webb, The GovernorsGeneral: The English Army and the Definition of the Empire, 1569-1681 (Chapel Hill:
University of North Carolina Press, 1979).
95.
Bowen, Lion and the Throne, 194.
96.
Attorney General Francis Bacon referred to the Indies once in argument. State Trials,
59
2:590-91. 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.
97.
It remained the starting point for conceptualizing the Empire into the 20th century. See,
e.g., Arthur B. Keith, Dominions as Sovereign States: Their Constitutions and Governments
(London: Macmillan, 1938), 111.
98.
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.
99.
Berman, "Origins of Historical Jurisprudence," 1678-89.
100.
State Trials, 2:641. See also State Trials, 2:612 (claiming that the advocates "told no
strange histories, cited no foreign laws, produced no alien precedents").
101.
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; 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.
60
102.
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 . . . .").
103.
Lord Chancellor Ellesmere criticized Coke's reasoning in his own opinion. State Trials,
2:659-96.
104.
State Trials, 2:638-39.
105.
State Trials, 2:638. Coke adhered to a harsher version of dispossession than advocated
by the Spanish theologian Francisco de Vitoria. 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.
106.
State Trials, 2: 639.
107.
See, e.g., James Wilson, "Considerations on the Nature and Extent of the Legislative
Authority of the British Parliament," in The Works of James Wilson, ed. Robert G. McCloskey,
2 vols. (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967), 2:721-46; John
Adams, "Novanglus," 27 March 1775, in Novanglus and Massachusettensis (Boston: Hews &
61
Goss, 1819), 111-12. See also Kettner, Development of American Citizenship, 131-72.
108.
See Schuyler, Parliament and the British Empire, 1-39; Julius Goebel Jr., "Book Review:
Parliament and the British Empire, by Robert L. Schuyler," Columbia Law Review, 30 (1930):
273-76.
109.
Black, "The Case for the Colonies"; McIlwain, The American Revolution: A
Constitutional Interpretation.
110.
Black, "The Case for the Colonies," 1181. See also Jack P. Greene, Peripheries and
Center: An Interpretation of British-American Constitutional Development, 1607-1788 (Athens,
Ga.: University of Georgia Press, 1986), 23-24.
111.
Between 1494 and 1782, Irish Parliamentary legislation had to be pre-approved by the
king under Poynings' law, an institution unique to Ireland. Poynings' Law, 10 Hen. VII, c. 4
(1485); repealed 21 & 22 Geo. III, c. 47 (1781). See J. C. Beckett, The Making of Modern
Ireland, 1603-1923 (London: Faber and Faber, 1981), 51, 225. The "naming" doctrine was
generally accepted, especially in the metropole, but occasionally rejected by Irish legal thinkers.
See Jacqueline Hill, "Ireland without Union: Molyneux and His Legacy," in A Union for Empire,
271-96; Flaherty, "The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial
Parliamentary Supremacy."
112.
State Trials, 2:640-47.
62
113.
Barbara Black describes the position well in "The Case for the Colonies," 1168-74. On
the transformation of Parliament, see Wallace Notestein, The Winning of the Initiative by the
House of Commons (London: Oxford University Press, [1924]); Conrad Russell, Parliaments
and English Politics, 1621-1629 (Oxford: Oxford University Press, 1979), 45-46. 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; Schuyler, Parliament and the
British Empire, 25-26.
114.
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;
Reid, The Constitutional History of the American Revolution: The Authority to Tax (Madison,
1987), 42; Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge,
Mass.: Belknap Press of Harvard University Press, 1967), 213 n. 55; Jack P. Greene, Peripheries
and Center: Constitutional Developments in the Extended Polities of the British Empire and
America, 1607-1788 (Athens, Ga.: University of Georgia Press, 1986), 88.
115.
Harvey Wheeler, "Calvin's Case (1608) and the McIlwain-Schuyler Debate," American
Historical Review, 61 (1955-56): 597.
63
116.
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).
117.
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").
118.
See generally Pocock, Ancient Constitution.
119.
Coke, preface to Le Tierce Part des Reportes del Edward Coke (London, 1602),
unpaginated. This analysis also suggests why Coke silently borrowed the Continental distinction
between conquered lands belonging to Christians on the one hand and infidels on the other:
Christians, such as the 11th-century Anglo-Saxons, retained their law; infidels did not. In the
eighteenth century Lord Mansfield rejected the distinction as "absurd" and a product of "the mad
enthusiasm of the crusades." Campbell v. Hall, 98 English Reports 1045, reprinted in State
Trials, 20:323 (K.B. 1774). 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.
120.
Compare Maitland, English Law and the Renaissance, with J. H. Baker, "English Law
and the Renaissance."
64
121.
The first were Barbadian royalists during the Civil War. Schuyler, Parliament and the
British Empire, 106-16.
122.
State Trials, 2:639.
123.
State Trials, 2:643. Note that only emigrants to conquered "Christian kingdom[s]" would
enjoy these property rights. State Trials, 2:639.
124.
For this process, see Smith, Appeals to the Privy Council.
125.
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, 3rd ed. (New York: Knopf, 1983); Eben Moglen, Settling
the Law: Legal Development in Provincial New York, 1664-1776 (forthcoming).
126.
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): 1049-1106; S.
F. C. Milsom, "The Nature of Blackstone's Achievement," Oxford Journal of Legal Studies, 1
(1981): 4.
127.
On the 1618 reforms, see Craven, Dissolution of the Virginia Company, 47-80.
128.
State Trials, 2:638.
129.
See D. A. Washbrook, "India, 1818-1860: The Two Faces of Colonialism," in The
65
Oxford History of the British Empire, ed. Andrew Porter, vol. 3 (New York, 1998), 398, 407,
415; Daniel J. Hulsebosch, "Imperia in Imperio: The Multiple Constitutions of Empire in New
York, 1750-1777," Law and History Review, 16 (1998): 366-68.
130.
On advowson, see Blackstone, Commentaries, 2:21-22.
131.
Cf. Edward J. McCaffrey, "The Uneasy Case for Wealth Transfer Taxation," Yale Law
Journal, 104 (1994): 283-365: Richard A. Epstein, Takings: Private Property and the Power of
Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985). On the emergence of the
right of inheritance, see Milsom, Historical Foundations, 2-3, 119-22.
132.
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), 178202. 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, 2nd ed., 2 vols. (Cambridge, England: Cambridge University
Press 1952), 1:384. 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). S. F. C. Milsom expressed an idea similar
to Baker’s in the tone of legal realism when he declared that “[t]he life of the common law has
been in the abuse of its elementary ideas.” Milsom, Historical Foundations, 6.
66
133.
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.
134.
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.
135.
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").
136.
Coke, preface, 5 Reports v.
137.
Commons Debates, 1628, 2:357-58.
138.
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; Jack N. Rakove, Declaring Rights: A Brief History with
Documents (Boston: Bedford Books, 1998), 20.
67
139.
See Williams, “English Conquest of Virginia,” 193-225. See generally Francis Jennings,
The Invasion of America: Indians, Colonialism, and the Cant of Conquest (Chapel Hill:
University of North Carolina Press, 1975).
140.
See Pagden, Lords of all the World, 93-94.
141.
A thing with no owner belongs to the first finder. Anthony Pagden notes that the
European empires rarely employed this concept to legitimize their colonies because it was too
fictitious as applied to the Americas. Pagden, Lords of All the World, 89-94. 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, Mass.: Harvard University Press,
1968), 23 (Book I, viii).
142.
John Locke, Two Treatises of Government, ed. Peter Laslett, rev. ed. (New York, 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. Laslett, Introduction to Two Treatises, 58-79. James
Tully makes a similar connection. Tully, An Approach to Political Philosophy: Locke in
Contexts (Cambridge, Mass.: Cambridge University Press, 1993), 137-76; Pagden, Lords of All
the World, 77.
143.
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
68
Coke's own bit of judicial law-making in Calvin's Case." Black, "The Case for the Colonies,"
1206 (emphasis in the original).
144.
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." Select Documents on the Constitutional History of the British Empire and
Commonwealth System, vol. 2, ed. Frederick Madden with David Fieldhouse (Westport, Conn.:
Greenwood Press, 1985), 190.
145.
124 Eng. Rep. 1072, 1073 (K.B. 1681).
146.
See also J. H. Baker, Extracts from Treby's Report, paper presented to the Legal History
Colloquium, New York University School of Law, September 1998.
147.
124 Eng. Rep. at 1084.
148.
124 Eng. Rep. at 1084.
149.
124 Eng. Rep. at 1076.
150.
124 Eng. Rep. at 1074 (emphasis added).
151.
Blankard v. Galdy, 87 Eng. Rep. 356 (1691) (holding that an English statute forbidding
the sale of offices did not apply to Jamaica).
69
152.
87 Eng. Rep. at 361-62.
153.
87 Eng. Rep. at 361.
154.
Dutton v. Howell, 1 Eng. Rep. 17, 19 (House of Lords, 1694) (emphasis in the original).
155.
1 Eng. Rep. at 21, 22 (emphasis in the original).
156.
Smith v. Brown and Cooper, 91 Eng. Rep. 566 (1702). For the use of this dicta in
Somersett's Case, see James Oldham, The Mansfield Manuscripts and the Growth of English
Law in the Eighteenth Century, 2 vols. (Chapel Hill: University of North Carolina Press, 1992),
2:1221-40.
157.
91 Eng. Rep. at 566-67.
158.
Mr. West's Opinion, Opinions of Eminent Lawyers on Various Points of English
Jurisprudence, 2 vols. (London: Reed & Hunter, 1814), 1:194-95.
159.
Dutton v. Howell, 1 Eng. Rep. 17 (1694). The case is discussed on page 47, above.
160.
2 Peere Williams 75 (1740-49). The industrious Smith reported that "we have found no
clue as to the appeal upon which this determination was made." Smith, Appeals to the Privy
Council, 482-83.
161.
A sober review of these opinion letters and case dicta is Smith, Appeals to the Privy
70
Council, 465-87.
162.
Peere Williams Reports, 3 vols (1740-49); Smith, Appeals to the Privy Council, 483.
163.
See, e.g., Madden and Fieldhouse, Select Documents on the Empire, 1:192 n1.
164.
William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: Printed for
John Hatchard & Son 1822, 1765-69), 1:105-06.
165.
Rex v. Vaughan, 98 Eng. Rep. 308, 311 (1769).
166.
Campbell v. Hall, 98 Eng. Rep. 1045, 1049-50. See also Kettner, Development of
American Citizenship, 59, 131-72. For Mansfield’s support of Parliamentary regulation of the
colonies, see House of Lords Debate, 7 Feb. 1775, in The Parliamentary History of England,
from the Earliest Period to the Year 1803, comp. T. C. Hansard, vol. 18 (London, 1813), col.
269.
167.
This conclusion discounts the undocumented decision in 2 Peere Williams 75.
168.
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, 7
vols. (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 Federal and State
71
Constitutions, 1:51. A similar formulation was repeated in most charters that followed. All are
available in Thorpe's collection.
169.
See, e.g., James Duane, "Address before the Committee to State the Rights of the
Colonies" [9/8/1774], Letters of the Continental Congress, ed. Edmund C. Burnett, 1:24-25.
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; Zachariah Chafee
Jr., "Colonial Courts and the Common Law," in Essays in the History of Early American Law,
ed. David H. Flaherty (Chapel Hill, 1969), 56; Charles M. Andrews, Colonial Period of
American History (New Haven: Yale University Press, 1934), 1:85-86.
170.
For the right to travel among and settle within the States without discrimination, see
Saenz v. Roe, 526 U.S. 489 (1999)
171.
State Trials, 2:639.
172.
For the British Empire, this was the issue in Somersett's Case. See Oldham, The
Mansfield Manuscripts, 1221-25, 1229-38. 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: University of North Carolina Press, 1981).
173.
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 . . .
72
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.
174.
See, e.g., Chafee, "Colonial Courts and the Common Law," 56-57.
175.
Again, colonial statutes upholding slavery are good examples.
176.
See Smith, Appeals to the Privy Council, 464-65, 523-31.
177.
White, Grievances of the Commonwealth, 216. White notes that Coke, then 76, was not
the "principal proponent" of the Petition, but "still played an active role in every stage of the
Commons's proceedings on the petition." Ibid., 224-25.
178.
White, Grievances of the Commonwealth, 213-74.
179.
See Morgan, American Slavery/American Freedom, 79; Craven, Southern Colonies in the
Seventeenth Century, 81, 85-87.
180.
Commons Debates, 1628, 3:487. For other 17th-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.
181.
It was in no one's interest to do so, till some colonies sought to shield themselves from
73
unwanted Parliamentary legislation during the Civil War, then during the Restoration, and again
in the 1760s and 1770s.
182.
See Conrad Russell, The Causes of the English Civil War (Oxford: Oxford University
Press, 1990), 26-57.
183.
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. See also Madden, "The Relevance of the English Medieval Experience of 'Empire'
to Later Constitutional Issues"; Goebel, "Matrix of Empire"; Armitage, Ideological Origins of the
British Empire, 22-23.
184.
Hulsebosch, Constituting Empire, chs. 7-8.
185.
James Otis invoked Coke's report of Bonham's Case when opposing royal writs of
assistance in the 1760s, and several lawyers cited the same case two decades later in the state
antiloyalist cases that foreshadowed judicial review. Bailyn, Ideological Origins, 176-78
(analyzing Otis's use of Coke); The Law Practice of Alexander Hamilton: Documents and
Commentary, ed. Julius Goebel Jr. et al, 5 vols. (New York: Columbia University Press, 19691981), 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
74
liberties." The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb (Washington, D.C.:
Thomas Jefferson Memorial Association of the United States, 1903-04), 12:iv
186.
See, e.g., Kermit Hall, William Wiecek, and Paul Finkelman, American Legal History:
Cases and Materials (New York: Oxford University Press, 1991), 23; 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. Cf. Katz, "The Problem of a Colonial Legal
History," 476-77.
187.
Good examples are Moglen, Settling the Law; John M. Murrin, "Anglicizing an
American Colony: The Transformation of Massachusetts" (Ph.D. diss., Yale University, 1966).
188.
The book went through many editions in London, Dublin, and, after the Revolution, the
United States, between 1628 and 1836. A Legal Bibliography of the British Commonwealth of
Nations, ed. W. Harold Maxwell and Leslie F. Maxwell, vol. 1 (London: Sweet & Maxwell,
1955), 449-52. See also Steve Sheppard, History of Legal Education in the United States:
Commentators and Primary Sources, 2 vols. (Pasadena, Cal.: 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).
189.
For postcolonial struggle within and against imperial resources, see Homi K. Bhabha, "Of
Mimicry and Man: The Ambivalence of Discourse," in The Location of Culture (New York:
Routledge, 1994), 85-92. See also Lawrence Buell, "Postcolonial Anxiety in Classic U.S.
75
Literature," in Postcolonial Theory and the United States: Race, Ethnicity, and Literature, ed.
Amritjit Singh and Peter Schmidt (Jackson, Miss.: University Press of Mississippi, 2000), 196219.
190.
See, e.g., The Post-Colonial Studies Reader, eds. Bill Ashcroft, Gareth Griffiths, and
Helen Tiffin (New York: Routledge, 1995).
191.
Harold A. Innis’s thesis that printed media travel well across space but lose integrity
through time is suggestive here. Innis, Empire and Communications, rev. Mary Q. Innis
(Toronto: University of Toronto Press, 1972). 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).
192.
See Hulsebosch, "Imperia in Imperio”; Morgan, American Slavery/American Freedom.
76