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