The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence

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 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.

While the ancient constitution was for England, Coke did 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, he and the other 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 the 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.

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 twentieth-century historians invoked Coke to support the claim that the English common law and related liberties migrated to British North American colonies with British settlers.[3] Second, some historians interpret Coke’s opinion in Calvin’s Case[4] as supporting the Revolutionary claim that the Crown could not govern the colonies without their consent.[5] Third, some colonists cited Coke’s opinion in Bonham’s Case[6] 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, with much historical reality to support it. But that myth also incorporates glosses on Coke’s work added in the late seventeenth and eighteenth centuries to resist imperial regulation and that have been confirmed by modern historians. The myth is an example of what John Reid has called “forensic history”: history used to justify a predetermined belief system.[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 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 America’s bicentennial from legal historian Barbara A. Black.[13] She reexamined “the case for the colonists” and concluded that, at a minimum, there was no decisive orthodoxy on the question within the eighteenth-century 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 my focus. Instead, I examine the assumption that Coke believed that his common law jurisprudence extended to the colonies and attempt 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, inspires a reappraisal of what Stanley Katz calls “the problem of colonial legal history”: was colonial law an English derivative or an American creation?[17] A reevaluation of Coke’s imperial jurisprudence in its context helps recast that question in terms of how common law culture was packaged for export, how it circulated through the Atlantic world, and how English-speakers drew upon it in concrete controversies. For constitutional questions, at least, it is helpful to view English legal culture as a literary canon and a set of practices, with overseas actors drawing creatively upon the canon as they performed the rituals of the rule of law against a new, dynamic backdrop. In the 1640s, Irish and West Indian colonists were among the earliest innovators upon Coke’s script of ancient liberties.[18] Their arguments circulated throughout the British Atlantic world, including North America, where colonists embraced those ideas tightly in the 1680s and developed them, insistently, two generations later. Metropolitan jurists dismissed most of these ideas as heterodox, which nonetheless became orthodox among many in the settler colonies.

Coke’s work in the early seventeenth century was critical to Atlantic legal history. At the same time that the English began expanding beyond the realm to create what became known as an empire, they also innovated upon old scripts of fundamental law to define their national constitution—to define the English nation. Constitutional ideas and imperial expansion developed simultaneously and reciprocally.[19] Coke contributed to 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 us 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.[20] 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, [21] he did seek to transform the practices of English law and governance into a system of jurisprudence.[22] He conveyed this jurisprudence to future generations of lawyers in the four-volume Institutes of the Laws of England,[23] the prefaces to eleven volumes of Coke’s Reports,[24] and his own published judicial opinions, which figure large in his Reports.[25] Among these “leading cases” was Calvin’s Case (1608),[26] which Coke called “the greatest case that ever was argued in the hall of Westminster”[27] and that remains a cornerstone of the Anglo-American law of citizenship.[28] In these writings, he celebrated parliamentary government and sought to limit the royal prerogative, the Crown’s discretionary authority outside Parliament and beyond the common law. Coke’s support of representative government and judicial power were intertwined; they were two ways of vindicating legal liberty.[29] 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,[30] and Coke was the most creative constitutional thinker of his day.[31] Coke’s “frame of the ancient common laws of this realm”[32] 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 most 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.[33]

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 Parliament in the 1620s and helped draft the Petition of Right in 1628, instantly part of the constitutional canon.[34] Through his judicial, literary, and legislative accomplishments, Coke contributed substantially to Anglo-American notions of the rule of law. Beginning in the Civil War of the 1640s, 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 forged the Union.[35]

However, Coke’s opinion in Calvin’s Case and his 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. For Coke, the “common law” was still the customary law operative within the English common law courts, which were courts of limited jurisdiction.[36] 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 generations called the ancient constitution.[37]

Again, Coke helped draft this constitution for England. But in Calvin’s Case he did look abroad and crafted a brief statement intended to constrain the king’s governance of Englishmen who traveled to the other royal territories. Coke’s design for imperial liberty was rough and unfinished, and his commitment to the project remains unclear—perhaps remained unclear to him too. This ambivalence and ambiguity made his work a rich resource for colonial advocates throughout the empire, beginning a few years after his death in 1634 and continuing at least until the American Revolution.

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.[38]

King James established a commission to recommend reforms that would facilitate trade between the two kingdoms. The commissioners proposed three changes: the abrogation of “hostile lawes” in each nation targeting the other; the creation of 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 with immunity from discrimination on the basis of nationality.[39] 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 the 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.[40] 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.[41]

Parliamentarians endorsed expansion but hesitated to treat the inhabitants of new territories as equal to themselves within England. They also feared setting a precedent. Scottish equality, argued 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 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.”[42] 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.[43] But they distinguished the realm of England from the dominions.[44] In part, parliamentarians feared an influx of poor Scots, a theme that ran through British political culture for the next two centuries.[45] 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.[46] According to classical republican theory, which was just being recovered in England, permitting foreigners to become citizens weakened a republic and its liberty.[47] 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.[48] 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.[49]

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.[50] 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 liberty;[51] 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, as James’s proclamation and parliamentary opposition to it revealed. No institution had 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 for the power to define the law of England.[52] 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.” These comprised about one hundred English courts and several others in Scotland and Ireland.[53] 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 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.[54] The jurisdictional politics among these “severall courts” reflected all the tensions of Jacobean England and contributed to the Civil War, or “the War of the Three Kingdoms,” in the 1640s.[55] 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 the jurisdictional politics, England also contained multiple sources of law. English law was not simply 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.”[56] 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.[57] But Coke listed fourteen other types of law besides common law, from “lex coronae, the law of the crowne,” lex mercatoria, and parliamentary statutes to equity and local customs that were “reasonable.”[58]

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.[59] The goal was to erect a barrier against absolute monarchy. Some 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 English and continental law was exaggerated.[60] Nonetheless the fear helped generate the political fiction of a timeless legal framework guaranteeing the liberty of the subject.[61] 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.[62]

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 be part of the king’s prerogative. James transferred Coke to the more prestigious court of King’s Bench, hoping to flatter him into submission.[63] But there, in an effort to gain independence from the king, Coke objected to the conventional practice of providing the king with advisory opinions. 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.[64]

Coke’s most important contribution to anglophone legal culture was to increase judicial independence from the executive. These efforts contributed to the modern separation of powers theory, the key element of which was the separation of the judiciary from the executive.[65] 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, he held that the common law courts would not enforce the London College of Physicians’ statutory monopoly over medical practice in the City.[66] 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.[67] The holding was narrow and followed the familiar maxim that a party could not judge his 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.[68]

A dozen years after Bonham’s Case, Coke was in the Commons advocating for its rights and powers. His ideas were not simply subservient to his institutional interests. The parliamentary act that Coke curtailed in Bonham’s Case 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.[69] 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 law and restraining the Crown.[70] 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 for identifying fundamental law.

The main reason why common law became the law of the land is that it provided the land law of England. Property still conferred sovereignty. The holder of land often controlled not 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 quasi-governmental privileges under which the landholder could determine the destiny of those on the land.[71] Even when the Crown (mostly through the common law courts) stripped landholders of many feudal privileges,[72] land still represented wealth and symbolized political independence from the king. Landed men might no longer be political lords, but they remained the political center of gravity.[73] Before it ceded its position to contract in the nineteenth century, property was the real and symbolic foundation of all liberties—of English liberty.[74] 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.”[75]

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 privileges in the universities, trades, and church.[76] 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’s accession to the English throne. He claimed an inheritance of 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.[77] The Englishmen’s defense was that Calvin had no rightful claim because he was an alien. Calvin’s attorneys denied that Calvin was 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.[78] Everyone agreed that an alien “can have no real or personal action for or concerning land”[79] 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, not aliens but rather subjects of the king as an English king.

The court answered affirmatively.[80] 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 opinions went unrecorded.[81] The court rejected the Englishmen’s argument that a subject was bound to the king’s political rather than natural person.[82] It instead held that “ligeance” was a personal bond between the natural subject and the person of the king, not between the subject and the king in his “politick capacity” as head of a particular kingdom.[83] 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….[84]

As a result of this bond, Calvin owed loyalty to the king as a natural man, who at Calvin’s birth 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.[85] This ligeance was created naturally upon birth within the king’s territory from parents who were under the king’s obedience.[86] 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.[87] 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, 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.[88] 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.”[89] In contrast, the English king’s “mandatory and non-remedial 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.”[90] 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 extraterritorial writs reflected European customs regarding relationships between kingdoms, which just then was being denominated the law of nations.[91] This law—a body of custom that transcended national lines—provided a model for Coke when he devised a royal law of free passage and equal protection throughout James’s multiple kingdoms. Yet that royal 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 jurisdiction.[92] 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, although these did not constitute the reasons for the decision of the individual judge, let alone of the whole court.[93] In these 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

In the first decade of the seventeenth century, all of London was interested in the fortunes of Virginia, named in memory of the recently deceased queen.[94] Elizabeth had granted a large tract of land 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.[95] Competing groups lobbied for a new grant, one led by 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 four hundred miles north-to-south and from the Atlantic to the Pacific, with an additional one hundred 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.[96] Similarly, the colony of Ulster in northern Ireland was established in 1607, another experiment in transplanting Britons outside Britain.[97]

The James River settlement was not quite the disaster of that on Roanoke two decades earlier, but the company did not establish a going concern. 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.[98] 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 that were based on the laws martial.[99] Raleigh may not have had, as Coke claimed, a “Spanish heart,”[100] but his old colony was Hispanicizing. This “New Britain” was designed to control the Indians, discipline the immigrant workforce, and mine precious metals. Colonial discipline in Ireland was just as strict.[101]

At the same time that the rechartered 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.[102] But he had drafted the company’s original charter, and the dicta in his opinion contained a disquisition on the legal relationship between the realm of England and other royal dominions. Those 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.[103] 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 of the old.”[104]

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.[105] In other words, law was the customary knowledge and reasoning ability of trained lawyers. 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.”[106] Those precedents concerned the old Norman provinces, the Channel Islands, and Ireland.[107] Here as elsewhere, Coke engaged in a low level of rationalization, which characterized most attempts to understand the empire for centuries.[108] Today the opinion reads like a crabbed medieval tract on the king’s non-English dominions. Although it read the same to a few of Coke’s contemporaries,[109] 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.

Yet Coke’s custom was dynamic rather than static, and his method permitted future advocates to push, even bend, his logic. If they did so to constrain royal power, he might have approved. “For out of the old fields,” Coke wrote in paraphrase of Chaucer, “must come the new corn.”[110] Often viewed as the last gasp of medieval reasoning, Coke’s notion of dynamic custom offered early modern English speakers a way to resist new ideas of unitary sovereignty. If nothing else, Anglo-American lawyers learned from him that legal complexity was itself a barrier not just against absolutism but against any distant government.

Second, Coke categorized all overseas territories as either inherited or conquered, a distinction that derived from Roman law.[111] 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.[112]

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.”[113] In contrast, the laws of a conquered Christian people, such as the Irish, 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.”[114] 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 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-in-council.[115] 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.[116] But Barbara A. Black, building 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.[117] “Coke’s position,” Black argues, “was that of a parliament-man, not a Parliament-man.”[118] 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 a 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.[119] Other conquered dominions, like the Channel Islands and the Isle of Man, were similarly constrained.[120]

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 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.[121]

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 alternatives. 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.[122] 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 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”[123] 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; that 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 not a priority, then. Whether or not the king governed abroad by his Privy Council or through the metropolitan Parliament depended on domestic and imperial politics rather than on constitutional principles located in the writings of Edward Coke.[124]

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.[125] 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. 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.[126] 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. This order 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.”[127] These principles of legal survival would also explain why the common law extended to his own day, in the face of Tudor and Stuart centralization.[128] Again, Coke’s main 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 outside the realm of England.[129] 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.[130]

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 dictum 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, as Barbara Black concludes, 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 [that is, property] action, and have the like privileges and benefits there, as they may have in England.”[131] Therefore, all emigrants to conquered kingdoms—those who served in the conquering army and those who stayed home, “Antenati [as well] as Postnati,” and apparently English or not—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.[132]

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.[133] In practice, lawyers and judges in those local courts gradually replicated many common law rules and procedures.[134] 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 a 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 “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.[135]

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.[136] 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 of dual property systems: 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.[137] In many colonies, those derived from conquered non-Christian as well as Christian lands, this too is what developed.[138]

The availability of “real actions” to vindicate property interests may not seem momentous four centuries later. Some of those actions never went abroad. For example, it does not appear that advowson, the right to nominate a minister for a church office, ever migrated to North America.[139] Others, like the right to devise property by will, emerged gradually but are now taken for granted, even naturalized.[140] 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 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.[141] 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.”[142] 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.[143] 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.[144] 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.”[145] 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. The last was the boldest: “the common law hath so admeasured the King’s 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.”[146] 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 the right to vindicate inheritance to elaborate political liberty. Through Coke’s writings, the metaphor of liberty as property—a birthright—circulated through the empire, and wrought consequences he never intended.[147]

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.[148] 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 conquest.[149] 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 nullius[150] 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.”[151] Those who labored to settle such land gained rights over it. It took little more to argue that English liberties were conveyed along with title. For many, the doctrine of settlement justified and explained the development of common law institutions abroad better than Coke’s theory of conquered lands.[152] Today many historians assume that the colonies were settled plantations rather than conquered lands.[153] 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 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 arose 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 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?”[154] The answer was no: 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 lesser power, should compel the superior, which is the greater power.”[155] Again, Ireland was “a dominion belonging to the Crown of England”;[156] 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 England except through the English Parliament, then he could not do so indirectly through his Irish government.[157] 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….”[158] 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 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.[159] 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.[160] Holt’s 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.”[161] The court relied on Dutton v. Howell, 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 in the Privy Council because (in the words of the defendant’s attorney) the claim was “not conusable here in Westminster-hall; [the official] was only censurable by the King.”[162] 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.”[163]

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.”[164] 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.”[165] Whether or not slaves became free in England, 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 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.”[166] 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 Dutton.[167] But it is unclear what this latter case was about.[168] These bold statements were not supported by the common law or Privy Council tradition.[169] 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.”[170] It was later reprinted in George Chalmers’s nineteenth-century collection of imperial precedents, which in turned has influenced modern historians.[171]

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 control of parliament.”[172] 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.”[173] 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 support of British parliamentary regulation of all the American colonies demonstrates that for him any parliament would suffice.[174]

These English sources show that the third category of settlement plantations was established in the repertoire of legal argument after the Restoration. However, no institution of the imperial government ever decided that any American colony fitted into that category.[175] Most early modern English jurists, such as Chief Justices Vaughan, Holt, and Blackstone, categorized the American colonies as conquered lands; native populations inhabited them. 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 colonization as well as some after that date.

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 Realm of England, or any other of our said Dominions.”[176] Some eighteenth-century colonists read this liberties clause as a funnel for the emergent English constitutional canon, a promise that colonists would enjoy all the liberties and privileges abroad that Englishmen had at home.[177] But, viewed in its early modern context, it meant rather less. The liberties clause was probably designed to answer the question that later arose in Calvin’s Case: what was the status of residents of other dominions who 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 for 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.[178] More liberally, the clause might have meant that some rights, like the right to common law tenures, traveled with English emigrants. As such, it would have operated as a platform for the minimalist imperial constitution that Coke outlined in Calvin’s Case. Again, there was no remedy provided, so the clause was something like a preemptive petition to the Crown for forbearance and, perhaps, overseas replicas of domestic institutions. 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 an Englishman who migrated to dominion B could there enjoy the liberties granted in his native dominion 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.[179]

Similar to the charter clause guaranteeing English liberties was that granting colonial proprietors and governors local legislative power but forbidding them to make ordinances “repugnant” to the laws of England.[180] Some historians interpret these clauses to mean that colonies grants had to operate pursuant to recognizable forms of English law, perhaps the common law.[181] 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.[182] 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.[183]

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, non-parliamentary taxation, billeting of troops, the application of martial law to civilians, and abuses by deputy lieutenants.[184] 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.[185] 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.[186] 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.”[187] His response merely confirmed the jurisdictional connotation of common law. But it also suggests 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.[188] 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.[189]

Whatever Coke’s intent had been, by the early eighteenth century his version of English liberties became the main source of British law in its two dimensions: on the British Isles and beyond them. The first dimension had fairly clear borders and was, increasingly, national. In Britain, the once separate kingdoms of England and Scotland (in Linda Colley’s phrase) forged a nation, though things “British,” including law and politics, were defined in a London accent.[190] The second dimension was more cultural than territorial and was captured in the doctrine of settlement: an English-man (or any Briton) carried English law with him wherever he went. Beyond the Isle’s borders, colonists pushed the equation between their law and English law as far as they could, though no farther than they wished. This last element—provincial control over provincial law—is what most distinguished the two dimensions of British law. It helps explain the absence of a unitary law for the empire and why, in the early modern period, there never was a “Greater Britain” comprising all the settler colonies and that could inspire, or at least enforce, their loyalty.[191]

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 unified imperial law. The English nation had developed out of similar unsystematic expansion and this did not prevent the emergence of a national common law, which Coke’s jurisprudence symbolized.[192] Time may just have run short, at least to keep thirteen of the North American colonies in the empire. But many revolutionaries learned the lesson, as was shown when legal thinkers in the early United States forged federal constitutional law and some national private law too.[193] Indeed, Coke’s writings, and the Revolutionary image of him as a firebrand of liberty, contributed to the national legal culture of the United States.

Conclusion: Coke in the American Legal Mind

The Coke explored here is not the Coke of American legal folklore. That more familiar figure appears as a proto-Revolutionary whose jurisprudence supported colonial resistance to parliamentary regulation and sowed the seeds of judicial review. Again, there is “a touch of rightness” to this myth.[194] 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.[195] 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.[196] Determining which parts were, where, and why requires intensive local studies of the colonial legal systems, of which we have few.[197] 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 Atlantic world after the Restoration.[198] 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 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 reinterpretation. They were at once constrained by metropolitan legal institutions and discourses and able to appropriate them for advantage.[199] Long after Coke’s legal and imperial worlds passed, his literature remained. American lawyers found in it, more than in natural jurisprudence or other sources of law, the discourse of resistance and reconstitution.

This approach to the colonial use of the English constitutional canon, which has affinities with postcolonial studies,[200] differs from the conventional analysis of whether the colonists enjoyed English law and 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.[201] Coke minted most of his currency for England, but it all circulated wide and far.

In the end, there was a kind of reverse Gresham’s law under which the American colonists appropriated the 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 disintegrative there; liberating in one place and enslaving in another—liberating and enslaving in some places at the same time.[202] 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.

Daniel J. Hulsebosch is an assistant professor at Saint Louis University School of Law <[email protected]>. Drafts of this article were presented at the annual conference of the Omohundro Institute of Early American History and Culture, Glasgow, Scotland, July 2001, the Columbia-USC-Georgetown-UCLA Law and Humanities Interdisciplinary Junior Scholar Workshop, and the Conference on the Consequences of the Accession of James I, Hull, England, June 2003. The author thanks Alfred Brophy, Martin Flaherty, Richard Johnson, Julie Peters, J. R. Pole, Jack Rakove, and the reviewers at the Law and History Review for helpful comments. He also thanks Claude Pavur, S.J., for helping to translate Sir Edward Coke’s Latin.

Notes

1.�J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (Cambridge: Cambridge University Press, 1987).

2.�Robert C. Johnson et al., eds., Commons Debates, 1628, 6 vols. (New Haven:Yale University Press, 1977–83), 3:487.

3.�See, e.g., Polly Price, “Natural Law and Birthright Citizenship in Calvin’s Case (1608),” Yale Journal of Law and the Humanities 9 (1997): 73–74 (“Calvin’s Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King”).

4.�T. B. Howell, comp., A Complete Collection of State Trials, 34 vols. (London, 1816–28), 2:559; 77 Eng. Rep. 377 (1608). The references to State Trials are to column number rather than page number.

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 (Ithaca: 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 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.: Trinity College Press, 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: Cambridge University Press, 1938), 131.

11.�Edward S. Corwin, The “Higher Law” Background of American Constitutionalism (Ithaca: Cornell University Press, 1955), 56–57.

12.�Compare Samuel E. Thorne, “Dr. Bonham’s Case,” Law Quarterly Review 54 (1938): 543–52, J. W. Gough, Fundamental Law in English Constitutional History, corrected ed. (Oxford: Clarendon Press, 1961), 30–47, 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. See also Julius Goebel Jr., History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (New York: Macmillan, 1971), 92–94, 134, 140; 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), 1–39.

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: 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.

18.�See Neil L. York, Neither Kingdom nor Nation: The Irish Quest for Constitutional Rights, 1698–1800 (Washington D.C.: Catholic University of America Press, 1994), 8–38; Liam S. O’Melinn, “The American Revolution and Constitutionalism in the Seventeenth-Century West Indies,” Columbia Law Review 95 (1995): 104–59.

19.�I explore this mutual causation in Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, forthcoming). For the gradual conceptualization of the overseas projects as an empire, see David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000).

20.�Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), 63–104; 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 only full 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.

21.�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.

22.�T. F. T. Plucknett observed that, compared to previous reporters, Coke was “more concerned with the ‘resolutions’ of the judges,… their statements of general principle, making little distinction between those which were the basis of the decision and those which were only obiter. It might be possible to conclude that Coke was thinking (unconsciously perhaps) of the law in terms of substance rather than of procedure….” Plucknett, “The Genesis of Coke’s Reports,” Cornell Law Quarterly 27 (1942): 212.

23.�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.

24.�Volumes 12 and 13 were published posthumously without prefaces. Plucknett, “The Genesis of Coke’s Reports,” 211.

25.�Edward Coke, The Reports of Sir Edward Coke, ed. John H. Thomas and John F. Fraser, new ed., 13 parts in 6 vols. (London: J. Butterworth and Son, 1826). On the development of reporting, see generally J. H. Baker, introduction to The Reports of Sir John Spelman, (London, 1978), 2:164–78.

26.�State Trials, 2:559; 77 Eng. Rep. 377. On the significance of “leading cases,” see A. W. B. Simpson, Leading Cases in the Common Law (New York: Clarendon Press, 1995).

27.�Coke, preface, 7 Coke’s Reports iii.

28.�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 in Calvin’s Case.”

29.�See text at note 70, below.

30.�See Martyn P. Thompson, “The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution,” American Historical Review 91 (1986): 1104–5.

31.�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).

32.�Coke, preface, to The Ninth Part of the Reports of Sir Edward Coke, ed. John Fraser (London, 1826), iv.

33.�See generally Gough, Fundamental Law in English Constitutional History. Pocock concedes that the word constitution “has not been systematically cleared of anachronism” as applied to Coke’s age because few people used the word “constitution” in the modern sense before 1660. 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, 1993), 22–56.

34.�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).

35.�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: Cambridge University Press, 1994).

36.�See J. H. Baker, An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990), 14–62.

37.�Coke, preface, 9 Coke’s Reports iv; Coke, preface, 8 Reports xviii. Cf. O’Melinn, “Constitutionalism in the Seventeenth-Century West Indies,” 112, n. 40 (noting that historian Barbara A. Black formulates “a theory of Coke’s two bodies: the one recognizing the law as it existed, and the other—a constitutional body—seeing how the principles of law had to be extended to meet new circumstances”).

38.�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); John Robertson, ed., A Union for Empire: Political Thought and the British Union of 1707 (Cambridge: Cambridge University Press, 1995). Roger A. Mason, ed., Scots and Britons: Scottish Political Thought and the Union of 1603 (Cambridge: Cambridge University Press).

39.�Kettner, Development of American Citizenship, 16–28; Price, “Natural Law and Birthright Citizenship in Calvin’s Case,” 73–145. The protections offered by the privileges and immunities clause in Article IV of the U.S. Constitution, guaranteeing equal treatment of one state’s citizens in another state, is analogous to what James sought for the subjects of his multiple kingdoms.

40.�”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.

41.�State Trials, 2:563.

42.�State Trials, 2:564.

43.�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.

44.�On the distinction between dynastic realms and nations, see Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991). Sharper definition of the English political nation never precluded enthusiasm for colonies. Commonwealthmen like James Harrington, for example, retained a role for the empire in their ideal scheme. See James Harrington, The Commonwealth of Oceana; and J. G. A. Pocock, ed., A System of Politics (1652; reprint, New York: Cambridge University Press, 1992), 11, 16–17, 217–28.

45.�”Suppose one man is owner of two pastures, with one hedge to divide them; the one pasture bare, the other fertile and good. A wise man will not quite pull down the hedge, but make gates to let the cattle in and out at pleasure; otherwise they will rush in in multitudes.” William Cobbett, The Parliamentary History of England (London: T. C. Hansard, 1806), 1:1062 (remarks of Mr. Fuller in 1606 debate). 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.

46.�For this form of polity, characteristic of the early modern period, see H. G. Koenigsberger, “Dominium Regale or Dominium Politicum et Regale: Monarchies and Parliaments in Early Modern Europe,” in his Politicians and Virtuousi: Essays in Early Modern History (London: Hambledon Press, 1986), 1–25.

47.�See Armitage, Ideological Origins of the British Empire, 128.

48.�See Raymond A. DeRoover, Gresham on Foreign Exchange; An Essay on Early English Mercantilism with the Text of Sir Thomas Gresham’s Memorandum: For the Understanding of the Exchange (Cambridge: Harvard University Press, 1949).

49.�See Jenny Wormald, “James VI and I: Two Kings or One?” History 68 (1983): 187–209. Cf. Burgess, Absolute Monarchy and the Stuart Constitution.

50.�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. J. P. Kenyon, ed., The Stuart Constitution: Documents and Commentary (Cambridge: 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.

51.�For the prevalence of the hierarchical metaphor in early modern England, see Arthur O. Lovejoy, The Great Chain of Being: A Study in the History of an Idea (Cambridge: Harvard University Press, 1936); W. H. Greenleaf, Order, Empiricism and Politics: Two Traditions of English Political Thought (Westport, Conn.: Greenwood Press, 1980).

52.�See S. F. C. Milsom, Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1981), 11–36.

53.�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.

54.�Coke, proeme, Fourth Institute.

55.�See Margaret A. Judson, The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick: Rutgers University Press, 1949). See also J. P. Sommerville, Politics and Ideology in England, 1603–1640, 2d ed. (London: Longman, 1999), 81–100. On the Civil War as “the War of the Three Kingdoms,” see J. C. Beckett, The Making of Modern Ireland, 1603–1923 (London: Faber and Faber, 1981), 82–103; Conrad Russell, The Causes of the English Civil War (Oxford: Clarendon Press, 1990). 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.

56.�Coke, The First Part of the Institutes of the Laws of England, ed. Francis Hargrave and Charles Butler, 18th ed., 2 vols. (1628; London, 1823), 11b.

57.�Coke, preface, 10 Coke’s Reports xxviii.

58.�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.

59.�Harold J. Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 103 (1994): 1651–1738.

60.�For an earlier version of this conflict, compare Burgess, Absolute Monarchy and the Stuart Constitution, 63–90, with Sommerville, Royalists and Patriots, 113–19. Compare F. W. Maitland, English Law and the Renaissance: The Rede Lecture for 1901 (Cambridge: Cambridge University Press, 1901), with J. H. Baker, “English Law and the Renaissance,” in his The Legal Profession and the Common Law: Historical Essays (London: Hambledon Press, 1986), 461–76.

61.�Helgerson, Forms of Nationhood, 66–67.

62.�Among other limitations, this common law world view deemphasized the feudalization of land tenures after the Conquest. But the point was to create a usable past rather than an objective history of England. See Pocock, Ancient Constitution; 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.

63.�Bowen, Lion and the Throne, 370–90.

64.�For these controversies between Coke and the king, see Knafla, Law and Politics in Jacobean England, 123–81; F. W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1920), 268–71; William Holdsworth, Some Makers of English Law (Cambridge: Cambridge University Press, 1938), 127–31; Bowen, Lion and the Throne, 277–390.

65.�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.

66.�77 Eng. Rep. 646 (1610).

67.�”The censors cannot be judges, ministers and parties: judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of their forfeiture….” 11 Eng. Rep. 646, 652.

68.�77 Eng. Rep. at 652.

69.�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.

70.�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).

71.�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.

72.�See S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976).

73.�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 and Row, 1967), 192–93.

74.�See John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 68–73.

75.�State Trials, 2:640, 77 Eng. Rep. at 399.

76.�Cobbett’s Parliamentary History, 1:1082–83.

77.�See J. H. Baker, The Law’s Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, 2001), 52–53.

78.�The Stuart kings commissioned this special court—”the Exchequer Chamber”—several times in the early seventeenth century to obtain definitive public law rules that would have effect throughout their territories. Hans S. Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge: Cambridge University Press, 1985), 43–44.

79.�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.

80.�Two justices, Walmsley and Foster, dissented. See State Papers 14/34 (microfilm), Public Record Office, Kew Gardens, London.

81.�Lord Chancellor Ellesmere published his opinion: The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati (London, 1609).

82.�The classic study is Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957).

83.�State Trials, 2:624, 77 Eng. Rep. at 388.

84.�State Trials, 2:624, 77 Eng. Rep. at 394. For analysis of Coke’s resort to natural law, see Keechang Kim, “Calvin’s Case (1608) and the Law of Alien Status,” Journal of Legal History 17 (1996): 155–71.

85.�State Trials, 2:655, 77 Eng. Rep. at 408.

86.�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, 77 Eng. Rep. at 408. 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.

87.�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.

88.�The exception was Ireland: writs of error ran from the Irish courts to the English court of King’s Bench, though this was controverted in Ireland. Martin S. Flaherty, “The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy,” Columbia Law Review 87 (1987): 593–622. See also note 129, below.

89.�State Trials, 2:643, 77 Eng. Rep. at 401.

90.�The example Coke used was “the kings’ writ to command any of his subjects, residing in any foreign country, to return into any of the king’s own dominions.” State Trials, 2:643, 77 Eng. Rep. at 401. 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 (New York: New York University Press, 1937), 2:410.

91.�Compare Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999), with Antony Anghie, “Francisco de Vitoria and the Colonial Origins of International Law,” in Laws of the Postcolonial, ed. Eve Darian-Smith and Peter Fitzpatrick (Ann Arbor: University of Michigan Press, 1999), 89–107. At about the same time, Grotius wrote the orthodox statement of the right of free passage for peaceful purposes among European nations. Grotius, De Jure Belli ac Pacis, trans. Francis W. Kelsey, ed. James B. Scott (New York: Oceana Publications, 1964), bk. 2, chap. 2, sec. 13. This, of course, did not guarantee equal subjectship among nations.

92.�See, e.g., The Princeton Principles on Universal Jurisdiction (2001), www.princeton.edu/~lapa/unive_jur.pdf.

93.�Though Coke claimed that he provided “the right understanding” of the holding and that there was little “variety of opinions” among the judges. State Trials, 2:613, 658, 77 Eng. Rep. at 381, 410. But see note 80, above.

94.�See D. G. James, The Dream of Prospero (Oxford: Clarendon Press, 1967), 83–88; Louis B. Wright, Religion and Empire: The Alliance between Piety and Commerce in English Expansion, 1558–1625 (Chapel Hill: University of North Carolina Press, 1943).

95.�See Bowen, The Lion and the Throne, 190–217, 343.

96.�[Robert Johnson,] Nova Britannia: Offering Most Excellent Fruites by Planting in Virginia (London, 1609).

97.�Beckett, The Making of Modern Ireland, 45–48.

98.�Coke, then a judge on Common Pleas, did not draft the new charter.

99.�The code was entitled the “Lawes Divine, Morall, and Martial”—”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 Governors-General: The English Army and the Definition of the Empire, 1569–1681 (Chapel Hill: University of North Carolina Press, 1979).

100.�Bowen, Lion and the Throne, 194.

101.�David T. Konig, “Colonizing and the Common Law in Ireland and Virginia, 1569–1634,” in The Transformation of Early American History: Society, Authority, and Ideology, ed. James A. Henretta, Michael Kammen, and Stanley N. Katz (New York: Knopf, 1991), 70–92.

102.�Attorney General Francis Bacon referred to the Indies once in argument. State Trials, 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.

103.�It remained the starting point for conceptualizing the empire into the twentieth century. See, e.g., Arthur B. Keith, Dominions as Sovereign States: Their Constitutions and Governments (London: Macmillan, 1938), 111.

104.�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.

105.�Berman, “Origins of Historical Jurisprudence,” 1678–89.

106.�State Trials, 2:641. See also State Trials, 2:612, 77 Eng. Rep. at 400 (claiming that the advocates “told no strange histories, cited no foreign laws, produced no alien precedents”).

107.�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.

108.�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 …”).

109.�Lord Chancellor Ellesmere criticized Coke’s reasoning in his own opinion. State Trials, 2:659–96.

110.�State Trials, 2:612, 77 Eng. Rep. at 381 (paraphrasing Chaucer’s Parliament of Fowls). Suggestive here is J. C. Holt’s discussion of the mythology of the Magna Carta, to which Coke substantially contributed. Holt, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992), 1–22.

111.�The doctrine of conquest was “among the accepted leading ideas of European civilization.” Donald Sutherland, “Conquest and Law,” Studia Gratiana 15 (1972): 33–51. See also Hans S. Pawlisch, “Sir John Davies, the Ancient Constitution and Civil Law,” Historical Journal 23 (1980): 689–702.

112.�State Trials, 2:638–39, 77 Eng. Rep. at 398.

113.�State Trials, 638; 77 Eng. Rep. at 398. Coke adhered to a harsher version of dispossession than advocated by the Spanish theologian Francisco de Vitoria. 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.

114.�State Trials, 2: 639, 77 Eng. Rep. at 398.

115.�See, e.g., James Wilson, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” in The Collected Works of James Wilson, ed. Robert G. McCloskey (Cambridge: Belknap Press of Harvard University Press, 1967), 2:721–46; John Adams, “Novanglus,” 27 March 1775, in Novanglus and Massachusettensis (Boston: Hews and Goss, 1819), 111–12. See also Kettner, Development of American Citizenship, 131–72.

116.�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.

117.�Black, “The Case for the Colonies”; McIlwain, The American Revolution: A Constitutional Interpretation.

118.�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: University of Georgia Press, 1986), 23–24.

119.�Between 1494 and 1782, Irish parliamentary legislation had to be preapproved 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 Beckett, The Making of Modern Ireland, 51, 225. The “naming” doctrine was generally accepted, especially in the metropole, but occasionally rejected by Irish legal thinkers. See Jacqueline Hill, “Ireland without Union: Molyneux and His Legacy,” in A Union for Empire, 271–96; Flaherty, “The Empire Strikes Back.”

120.�State Trials, 2:640–47, 77 Eng. Rep. at 399–404.

121.�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.

122.�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: University of Wisconsin Press, 1987), 42; Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: 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: University of Georgia Press, 1986), 88.

123.�Harvey Wheeler, “Calvin’s Case (1608) and the McIlwain-Schuyler Debate,” American Historical Review 61 (1955–56): 597.

124.�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).

125.�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”).

126.�See generally Pocock, Ancient Constitution.

127.�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 eleventh-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 Eng. Rep. 1045, 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.

128.�Compare Maitland, English Law and the Renaissance, with J. H. Baker, “English Law and the Renaissance.”

129.�See Smith, Appeals to the Privy Council, 10–11. The exception was the controversial practice whereby the English King’s Bench took writs of error from Ireland until such jurisdiction was abolished in 1783. State Trials, 2:639, 77 Eng. Rep., at 398; Schuyler, Parliament and the British Empire, 64–67, 82–83, 87, 99–100.

130.�The first were Barbadian royalists during the Civil War. Schuyler, Parliament and the British Empire, 106–16.

131.�State Trials, 2:639, 77 Eng. Rep. at 398.

132.�State Trials, 2:643, 77 Eng. Rep. at 401. Note that, according to Coke, only emigrants to conquered “Christian kingdom[s]” would enjoy these property rights. State Trials, 2:639, 77 Eng. Rep. at 398. But the logic could extend to other dominions too.

133.�For this process, see Smith, Appeals to the Privy Council.

134.�See John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Colonial America: Essays in Politics and Social Development, ed. Stanley N. Katz and John M. Murrin, 3d ed. (New York: Knopf, 1983); Eben Moglen, Settling the Law: Legal Development in Provincial New York, 1664–1776 (forthcoming).

135.�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.

136.�On the 1618 reforms, see Craven, Dissolution of the Virginia Company, 47–80.

137.�State Trials, 2:638. Coke’s proposed compromise between domestic liberties and native law suggests both similarities and differences between the role of Calvin’s Case in the British empire and the Insular Cases in the overseas territories of the United States. See Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution, ed. Christina Duffy Nurnett and Burke Marshall (Durham: Duke University Press, 2001).

138.�See D. A. Washbrook, “India, 1818–1860: The Two Faces of Colonialism,” in The Oxford History of the British Empire, ed. Andrew Porter (New York, 1998), 3:398, 407, 415; Daniel J. Hulsebosch, “Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750–1777”, Law and History Review 16 (1998): 366–68.

139.�On advowson, see Blackstone, Commentaries, 2:21–22.

140.�On the emergence of an heir’s right, see Milsom, Historical Foundations, 2–3, 119–22. 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: Harvard University Press, 1985).

141.�J. H. Baker, “Personal Liberty under the Common Law of England,” in The Origins of Modern Freedom in the West, ed. R. W. Davis (Stanford: Stanford University Press, 1995), 178–202. A franchise, wrote F. W. Maitland, was “a portion of royal power in the hands of a subject,” granting him immunity from some royally imposed burden or the power to exercise some aspect of royal power. Frederick Pollock and Frederic W. Maitland, The History of English Law before Edward I, 2d ed. (Cambridge: Cambridge University Press, 1952), 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.

142.�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.

143.�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. On the connection between colonization and rigid substantive law, including reported precedents and treatises, see Pawlisch, Sir John Davies and the Conquest of Ireland, 42–45; Hulsebosch, “Writs to Rights.”

144.�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”).

145.�Coke, preface, 5 Coke’s Reports v.

146.�Commons Debates, 1628, 2:357–58.

147.�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.

148.�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).

149.�See Pagden, Lords of All the World, 93–94.

150.�”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. Cf. Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492–1640 (New York: Cambridge University Press, 1995) (arguing that most Britons preferred to view the American colonists as settlers rather than conquerors). For a classical statement of the three ways to obtain property—settlement, conquest, and the due process of law—see Cicero, De officiis, trans. Walter Miller (Cambridge: Harvard University Press, 1968), 23 (Book I, viii).

151.�John Locke, Two Treatises of Government, ed. Peter Laslett, rev. ed. (New York: Mentor, 1963), 343, 336. Laslett notes that Locke drafted the Second Treatise during 1679–80, and it circulated at least among a few readers soon after. Laslett, introduction to Two Treatises, 58–79. James Tully notes that reports about the Amerindians influenced Locke’s theory of property. Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 137–76; Pagden, Lords of All the World, 77. The point here is that Locke’s theory may, in turn, have influenced how colonists viewed the process of settlement.

152.�As Barbara A. Black points out, “the doctrine of settlement cannot be deduced from Calvin’s Case. It is a creative extension, by way of judicial legislation, of the principles behind Coke’s own bit of judicial law-making in Calvin’s Case.” Black, “The Case for the Colonies,” 1206 (emphasis in the original).

153.�The editors of an influential sourcebook of the British Empire, for example, assume that the colonies were settlements rather than conquered provinces. “[W]hile the principle that English law applied in English colonies was accepted in general, its specific application was not at all clear.” Frederick Madden with David Fieldhouse, eds., Select Documents on the Constitutional History of the British Empire and Commonwealth System (Westport, Conn.: Greenwood Press, 1985), 2:190.

154.�124 Eng. Rep. 1072, 1073 (K.B. 1681). See also J. H. Baker, “‘United and Knit to the Imperial Crown’: An English View of the Anglo-Hibernian Constitution in 1670,” in Mysteries and Solutions in Irish Legal History, ed. D. S. Greer and N. M. Dawson (Dublin: Four Courts Press, 2001), 73–95.

155.�124Eng. Rep. at 1084.

156.�Ibid.

157.�Ibid., 1076.

158.�Ibid., 1074 (emphasis added).

159.�Blankard v. Galdy, 87 Eng. Rep. 356 (1691) (holding that an English statute forbidding the sale of offices did not apply to Jamaica).

160.�87 Eng. Rep. at 361–62.

161.�Ibid., 361.

162.�Dutton v. Howell, 1 Eng. Rep. 17, 19 (House of Lords, 1694) (emphasis in the original).

163.�1 Eng. Rep. at 21, 22 (emphasis in the original).

164.�Smith v. Brown and Cooper, 91 Eng. Rep. 566 (1702). For the use of this dictum in Somersett’s Case, see James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 2:1221–40.

165.�91 Eng. Rep. at 566–67.

166.�Mr. West’s Opinion, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (London: Reed and Hunter, 1814), 1:194–95.

167.�Dutton v. Howell, 1 Eng. Rep. 17 (1694). The case is discussed above in the text after note 161.

168.�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.

169.�A sober review of these opinion letters and case dicta is Smith, Appeals to the Privy Council, 465–87. cf. Reid, Authority of Rights, 114–31.

170.�Peere Williams Reports, 3 vols. (1740–49); Smith, Appeals to the Privy Council, 483.

171.�See, e.g., Madden and Fieldhouse, Select Documents on the Empire, 1:192 n.1.

172.�William Blackstone, Commentaries on the Laws of England, 4 vols. (1765–69; Oxford: Printed for John Hatchard and Son, 1822), 1:105–6.

173.�Rex v. Vaughan, 98 Eng. Rep. 308, 311 (1769).

174.�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.

175.�This conclusion discounts the undocumented decision in 2 Peere Williams 75.

176.�First Charter to Virginia (1606), in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of … the United States of America, ed. Francis N. Thorpe (Washington, D.C., 1909), 7:3788. Gilbert’s charter is most explicit: settlers and their children shall “enjoy all the priveleges [sic] of free denizens and persons native of England, and within our allegiance.” Letters Patent to Sir Humfrey Gylberte (1578), in ibid., 1:51. A similar formulation was repeated in most charters that followed. All are available in Thorpe’s collection.

177.�See, e.g., James Duane, “Address before the Committee to State the Rights of the Colonies” [9/8/1774], Letters of Members of the Continental Congress, ed. Edmund C. Burnett (Eashington, D.C.: The Carnegie Foundation of Washington, 1921), 1:24–25. 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: University of North Carolina Press, 1969), 56; Charles M. Andrews, Colonial Period of American History (New Haven: Yale University Press, 1934), 1:85–86.

178.�For the right to travel among and settle within the states without discrimination, see Saenz v. Roe, 526 U.S. 489 (1999).

179.�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 Press, 1981).

180.�This clause became standard for trading companies in the sixteenth century. Under the Virginia Company’s 1609 charter, for example, the governing council was to make law “as near as conveniently may be,… agreeable to the laws, statutes, government, and policy of … England.” Julius Goebel Jr. and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664–1776) (1944; reprint, Montclair, N.J.: Patterson Smith, 1970), xxi–xxii, 3–6, 13.

181.�See, e.g., Chafee, “Colonial Courts and the Common Law,” 56–57.

182.�Again, colonial statutes upholding slavery are good examples.

183.�See Smith, Appeals to the Privy Council, 464–65, 523–31.

184.�White, Grievances of the Commonwealth, 216. White notes that Coke, then seventy-six, 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.

185.�White, Grievances of the Commonwealth, 213–74.

186.�See Morgan, American Slavery/American Freedom, 79; Craven, Southern Colonies in the Seventeenth Century, 81, 85–87.

187.�Commons Debates, 1628, 3:487. For other seventeenth-century parliamentarians (including John Pym) who denied that the colonists enjoyed English rights, see Karen O. Kupperman, “The Beehive as a Model for Colonial Design,” in America in European Consciousness, 1493–1750, ed. Karen O. Kupperman (Chapel Hill: University of North Carolina Press, 1995), 285–86.

188.�It was in no one’s interest to do so, till some colonies sought to shield themselves from unwanted parliamentary legislation during the Civil War, then during the Restoration, and again in the 1760s and 1770s.

189.�See Russell, Causes of the English Civil War, 26–57; Sommerville, Royalists and Patriots, 134–75.

190.�Colley, Britons.

191.�For the concept of a “Greater Britain” of white settler colonies, see J. R. Seeley, The Expansion of England (1833; reprint, Chicago: University of Chicago Press, 1971), 8. See also David Armitage, “Greater Britain: A Useful Category of Historical Analysis?” American Historical Review 104 (1999): 427–45; Eliga H. Gould, “A Virtual Nation: Greater Britain and the Imperial Legacy of the American Revolution,” American Historical Review 104 (1999): 476–89. See generally J. G. A. Pocock, “British History: A Plea for a New Subject,” Journal of Modern History 47 (1975): 601–21; Pocock, “The Limits and Divisions of British History: In Search of an Unknown Subject,” American Historical Review 87 (1982): 311–36. Ireland occupied an uncertain middle ground between Britain and the colonies, though the Act of Irish Union was designed to make it part of Great Britain.

192.�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.

193.�Hulsebosch, Constituting Empire, chaps. 7–8.

194.�See Black, “The Case for the Colonies,” 1172 (commenting on McIlwain’s thesis that the colonists correctly interpreted the English constitution).

195.�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); Julius Geobel Jr. et al., eds., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (New York: Columbia University Press, 1969–1981), 1:357, 358 (documenting Hamilton’s citation of Coke in Rutgers v. Waddington). And Thomas Jefferson remembered that during his apprenticeship Coke’s First Institutes “was the universal law book of students, and a sounder Whig never wrote, nor a profounder learning and judgment in the orthodox doctrines of the British Constitution, or in what is called British liberties.” Andrew A. Lipscomb, ed., The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 1903–4), 12:iv

196.�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.

197.�Good examples are Moglen, Settling the Law; John M. Murrin, “Anglicizing an American Colony: The Transformation of Massachusetts” (Ph.D. diss., Yale University, 1966).

198.�The book went through many editions in London, Dublin, and, after the Revolution, the United States, between 1628 and 1836. See W. Harold Maxwell and Leslie F. Maxwell, eds., A Legal Bibliography of the British Commonwealth of Nations (London: Sweet and Maxwell, 1955), 1:449–52. See also Steve Sheppard, History of Legal Education in the United States: Commentators and Primary Sources (Pasadena: Salem Press, 1999), 1:10–11 (observing that Coke’s First Institute “held first position as the textbook of the common law” into the early nineteenth century).

199.�For postcolonial struggle within and against imperial resources, see Homi K. Bhabha, “Of Mimicry and Man: The Ambivalence of Discourse,” in his The Location of Culture (New York: Routledge, 1994), 85–92. See also Lawrence Buell, “Postcolonial Anxiety in Classic U.S. Literature,” in Postcolonial Theory and the United States: Race, Ethnicity, and Literature, ed. Amritjit Singh and Peter Schmidt (Jackson: University Press of Mississippi, 2000), 196–219.

200.�There are many strands to postcolonial studies. I have in mind here examinations of white settler colony cultures, or what Alan Lawson calls the empire’s “second world” relative to the first world of Great Britain and the third of the nonwhite colonies. Alan Lawson, “Comparative Studies and Post-Colonial Settler Cultures,” Australian-Canadian Studies 10 (1992): 153–59; Lawson, “A Cultural Paradigm for the Second World,” Australian-Canadian Studies 9 (1991), 68. See also Bill Ashcroft, Gareth Griffiths, and Helen Tiffin, eds., The Post-Colonial Studies Reader (New York: Routledge, 1995).

201.�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).

202.�See Hulsebosch, “Imperia in Imperio”; Morgan, American Slavery/American Freedom.

 

 

 

By: Daniel J. Hulsebosch

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