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The Ancient Constitution and the
Expanding Empire: Sir Edward Coke's
British Jurisprudence
DANIEL J. HULSEBOSCH
One of the great, unrecognized 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 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 priv-
ileges 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 intend-
ed 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.
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.
Daniel J. Hulsebosch is an assistant professor at Saint Louis University School of

Law <hulsebos@slu.edu>. Drafts of this article were presented at the annual con-
ference 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.
Law and History Review Fall 2003, Vol. 21, No. 3

© 2003 by the Board of Trustees of the University of Illinois
Law and History Review, Fall 2003
While the ancient constitution was for England, Coke did suggest that cen-
tral elements of common law culture, such as real property tenures and the
right to representative government, might migrate to the king's other domin-
ions. 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 judi-
cial 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 modem
period and not in recent historiography. In American legal culture, Coke
is a champion of the common law, constitutional liberty, and judicial re-
view. First, eighteenth-century colonists and twentieth-century historians
invoked Coke to support the claim that the English common law and re-
lated liberties migrated to British North American colonies with British
4
settlers. 3 Second, some historians interpret Coke's opinion in Calvin's Case
as supporting the Revolutionary claim that the Crown could not govern the
colonies without their consent.' Third, some colonists cited Coke's opin-
ion in Bonham's Case6 for the proposition that parliamentary statutes vio-
lating 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,
3. See, e.g., Polly Price, "Natural Law and Birthright Citizenship in Calvin's Case (1608),"
Yale Journalof 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 PennsylvaniaLaw Review 124 (1976): 1157, 1175-84; Charles H. Mcllwain, The
American Revolution: A ConstitutionalInterpretation(Ithaca: Comell 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, PoliticalIdeas of the American Revolution: Britannic-American
The Ancient Constitution and the Expanding Empire
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 sev-
enteenth and eighteenth centuries to resist imperial regulation and that have
been confirmed by modem historians. The myth is an example of what John
Reid has called "forensic history": history used to justify a predetermined
belief system.'
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 citi-
zen can read his story without a sense of immediate recognition. In these
parliamentary struggles, knights, citizens and burgesses fought not for them-
selves alone but for states as yet unformed ....9
Some legal scholarship rests on a similar premise. Commenting on judi-
cial 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 suprem-
acy of the law."' 0 American constitutional historian Edward Corwin simi-
larly maintained that "Coke came forward with the doctrine of a law fun-
damental, binding on Parliament.... From his version of Magna Carta...
to the Bills of Rights of our early American constitutions the line of de-
scent is direct." '"
The thesis that Coke laid the groundwork for American judicial review
has received damaging modem criticism, though it remains true that the
earliest American adherents of the doctrine cited Coke for its authority. 12
Contribution to the Problem o]" inperial Organization, 1765-1775 (Durham, N.C.: Trinity
College Press. 1922), 141.
8. John Phillip Reid. "Law and History." Lovola 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), ..
10. William Holdsworth, Some Makers of English Law (Cambridge: Cambridge Univer-
sity Press, 1938), 131.
1I.Edward S. Corwin, The "Higher Law" Background of American Constitutionalism
(Ithaca: Comell University Press, 1955), 56-57.
12. Compare Samuel E. Thome, "Dr. Bonham's Case," Law Quarterly Review 54 (1938):
543-52, J. W. Gough, FundamentalLaw in English ConstitutionalHistory, corrected ed.
(Oxford: Clarendon Press, 1961), 30-47, with Charles M. Gray, "Bonham's Case Reviewed,"
Proceedingsof the American PhilosophicalSociety 116 (1972): 35-58; T. F. T. Plucknett,
"Bonham's Case and Judicial Review," HarvardLaw 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, "Fore-
word: We the Court," Harvard Law Review 114 (2001): 30-31.
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. Mcllwain 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 de-
cisive 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."' 4 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 ex-
amine 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 examina-
tion 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 Stan-
ley Katz calls "the problem of colonial legal history": was colonial law an
English derivative or an American creation? 7 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 con-
13. Compare Black, "The Case for the Colonists," and Mcllwain, The American Revolu-
tion, with Robert L. Schuyler, Parliamentand the British Empire: Some Constitutional
Controversies Concerning ImperialLegislative Jurisdiction(New York: Columbia Univer-
sity Press, 1929), 1-39.
14. Black, "The Case for the Colonists," 1175. See also Stoner, Common Law and Liber-
al 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 defi-
nitions 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 constitu-
tion. Rakove, OriginalMeanings: 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 Modem Era, ed. Jack P. Greene and J. R.
Pole (Baltimore: Johns Hopkins University Press, 1984), 457-89.
The Ancient Constitutionand the Expanding Empire 443
troversies. 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 Indi-
an colonists were among the earliest innovators upon Coke's script of an-
cient liberties. 8 Their arguments circulated throughout the British Atlantic
world, including North America, where colonists embraced those ideas tight-
ly in the 1680s and developed them, insistently, two generations later. Met-
ropolitan jurists dismissed most of these ideas as heterodox, which none-
theless 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 avail-
able to all royal subjects throughout the expanding empire. Situating Coke's
understanding of the relation between realm and dominions, between En-
glish liberties and imperial law, in its early modem context will enable us
to approach colonial American legal culture free of anachronism and ap-
preciate 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 jus-
tice 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.2 0 In addition, his jurisprudence symbolized the
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 Transfor-
mation of Constitutionalismin 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 Originsof the British Empire (Cambridge:
Cambridge University Press, 2000).
20. Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chi-
cago: 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 Print-
ing English Law, 1520-1640," University of PennsylvaniaLaw 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
444 Law and History Review, Fall 2003
establishment of core common law rights and liberties as constitutional
rights and liberties. Although Coke's obsessive style has always frustrated
critics, 2' he did seek to transform the practices of English law and gover-
nance 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,2 3 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 modem English-
of National Biography,vol. 4 (Oxford: Oxford University Press, 1917), 685-700; Hold-

sworth, 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 FrancisBacon, Lord Chancellorof 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 EdwardCoke, 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, (Lon-
don, 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 Citi-
zenship in Calvin's Case."
29. See text at note 70, below.
The Ancient Constitution and the Expanding Empire 445
men used framing metaphors to describe their legal order, 30 and Coke was
the most creative constitutional thinker of his day.3" 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 inher-
it 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
33
known as the ancient constitution-though Coke never used that term.
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 be-
came a prominent member of Parliament in the 1620s and helped draft the
34
Petition of Right in 1628, instantly part of the constitutional canon.
Through his judicial, literary, and legislative accomplishments, Coke con-
tributed substantially to Anglo-American notions of the rule of law. Begin-
ning 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
modem ideas of constitutionalism is not straight, but the dots can be con-
nected-and they were by American lawyers who resisted the empire and
then forged the Union.3"
However, Coke's opinion in Calvin's Case and his other writings dem-
onstrate that his ancient constitution was England's constitution. He nev-
30. See Martyn P. Thompson, "The History of Fundamental Law in Political Thought from
the French Wars of Religion to the American Revolution," American HistoricalReview 91
(1986): 1104-5.
31. Pocock, Ancient Constitution; Glenn Burgess, The Politics of the Ancient Constitu-
tion: An Introduction to English Political Thought, 1603-1642 (University Park: Pennsyl-
vania State University Press, 1992).
32. Coke, preface, to The Ninth Partof the Reports of Sir Edward Coke, ed. John Fraser
(London, 1826), iv.
33. See generally Gough, FundamentalLaw in English ConstitutionalHistory. 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 modem
sense before 1660. Pocock, Ancient Constitution,261 n. 8. See also Gerald Stourzh, "Con-
stitution:Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth
Century," in Conceptual Change andthe Constitution,ed. Terence Ball and J. G. A. Pocock
(Lawrence: University Press of Kansas, 1988), 35-54; J. C. Holt, "The Ancient Constitu-
tion 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 Grievancesof 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 Lib-
erty, 1660-1832: Political Discourse and Social Dynamics in the Anglo-American World
(Cambridge: Cambridge University Press, 1994).
er 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. Through-
out his life Coke retained a medieval conception of law as primarily juris-
dictional 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 enforce-
ment. 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 jurispruden-
tial conceptions of law probably exist simultaneously in every legal sys-
tem at most times, but, like dominant and recessive genes, one overshad-
ows 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.3 6 It was not an abstract system of jurisprudence export-
able to all of the king's dominions. However, Coke contributed substan-
tially 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 jurispru-
dence 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 terri-
tories. 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.
36. See J. H. Baker, An Introduction to English Legal History, 3d ed. (London: Butter-
worths, 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 histori-
an 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").
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 cen-
turies 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,
38
and churches, shared one king.
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 nation-
ality.3 9 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 ascend-
ed the English throne (antenati)could not be treated as natural subjects in
the other kingdom, opinion was divided about the status of those born af-
ter 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
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: PoliticalThought and the British Union of 1707 (Cambridge: Cambridge Uni-
versity Press, 1995). Roger A. Mason, ed., Scots andBritons: Scottish PoliticalThought and
the Union of 1603 (Cambridge: Cambridge University Press).
39. Kettner, Development ofAmerican Citizenship, 16-28; Price, "Natural Law and Birth-
right 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 Natu-
ralization," 14 Feb. 1607, The Works of FrancisBacon, ed. James Spedding, Robert L. El-
lis, and Douglas D. Heath, 14 vols. (London, 1861-74), 10:307-25.
"tempered the tongues" of those who opposed the commission's propos-

al, many in Parliament believed that royal advisors (who, parliamentari-
ans 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
41
aliens rather than natural subjects of England.
Parliamentarians endorsed expansion but hesitated to treat the inhabit-
ants 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.1 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." 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 Ac-
cording to classical republican theory, which was just being recovered in
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 Vir-
ginia Company: The Failure of a ColonialExperiment (New York: Oxford University Press,
1932), 81 ff.
44. On the distinction between dynastic realms and nations, see Benedict Anderson, Imag-
ined 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 mul-
titudes." William Cobbett, The ParliamentaryHistory 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: Forgingthe
Nation, 1707-1837 (New Haven: Yale University Press, 1992), 117-22.
46. For this form of polity, characteristic of the early modem period, see H. G. Koenigs-
berger, "Dominium Regale or Dominium Politicum et Regale: Monarchies and Parliaments
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, parliamen-
tarians 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,
49
regressive legal order on England.
Second, the Houses were not concerned about the legal culture of the ter-
ritories 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." Liberties were national, meaning native, and once
earned they became a form of property, purchased with the blood of ances-
tors and held in trust for posterity. Other kingdoms and dominions had their
own liberties, or they did not, depending on their own historical negotia-
tions. Nations existed along a chain of being measured in degrees of liber-
ty; -" each got as much as it deserved. English national identity depended
on this constitutional alterity within and outside the Empire.
in Early Modern Europe," in his Politiciansand Virtuousi: Essays in Early Modem History
(London: Hambledon Press, 1986), 1-25.
47. See Armitage, Ideological Origins of the British Empire, 1,28.
48. See Raymond A. DeRoover, Gresham on Foreign Exchange; An Essay on Early En-
glish Mercantilism with the Text of Sir Thomas Gresham's Memorandum: For the Under-
standing 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 Slav-
ery/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 HistoricalReview 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 modem England, see Arthur
0. Lovejoy, The Great Chain of Being: A Study in the History of an Idea (Cambridge: Har-
vard University Press, 1936); W. H. Greenleaf, Order,Empiricism and Politics: Two Tradi-
tions of English Political Thought (Westport, Conn.: Greenwood Press, 1980).
If legal pluralism characterized England's emergent empire, it also
marked the English nation itself, as James's proclamation and parliamen-
tary opposition to it revealed. No institution had a monopoly on legal in-
terpretation. 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. 3 It was imper-
ative 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,
54
subvert justice, and bring all things in the end to confusion.
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 prop-
erjurisdiction was a primary language of politics in early modem England
and a rich legacy bequeathed to its colonies.
In addition to the jurisdictional politics, England also contained multi-
ple sources of law. English law was not simply body of rules or principles
52. See S. F. C. Milsom, Historical Foundationsof 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 Jurisdictionof the Courts (1644; reprint, London: M. Plesher, 1817), unpag-
inated. For recent use of the cartographic metaphor, see Christopher L. Tomlins, "The Le-
gal 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 PoliticalThought 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 preserva-
tion, 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 Uni-
versity Press, 2001), 10.
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 land-
holders 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 stat-
58
utes to equity and local customs that were "reasonable.
Despite this legal pluralism, common lawyers and parliamentarians ar-
gued 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
60
the difference between English and continental law was exaggerated.
Nonetheless the fear helped generate the political fiction of a timeless le-
gal 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. Common62law was
the glue of nationhood, a nation defined as a limited monarchy.
56. Coke, The FirstPart of the Institutes of the Laws of England, ed. Francis Hargrave
and Charles Butler, 18th ed., 2 vols. (1628; London, 1823), lib.
57. Coke, preface, 10 Coke's Reports xxviii.
58. Coke, FirstInstitutes, 1lb. See also John Davies, The Question Concerning Imposi-
tions, Tonnage, Poundages ... Fully Stated andArguedfrom Reason, Law and Policy (Lon-
don, 1656), 2-3. See also Judson, Crisis of the Constitution, 246; Louis Knafla, Law and
Politics in JacobeanEngland: The Tracts of Lord ChancellorEllesmere (Cambridge: Cam-
bridge 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: HistoricalEssays (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 Constitu-
tion; John P. Reid, "The Jurisprudence of Liberty: The Ancient Constitution in the Legal His-
toriography of the Seventeenth and Eighteenth Centuries," in Roots of Liberty, 147-23 1.
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 over-
saw 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 ad-
visory 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 eccle-
siastical 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 contrib-
uted 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 fa-
mous 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 Physi-
cians' 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 nar-
row 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 com-
63. Bowen, Lion and the Throne, 370-90.

64. For these controversies between Coke and the king, see Knafla, Law and Politics in
JacobeanEngland, 123-81; F. W. Maitland, The Constitutional History of England (Cam-
bridge: 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
Doctrinefrom 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 judg-
ment; ministers to make summons; and parties to have the moiety of their forfeiture....
11 Eng. Rep. 646, 652.
mon law will controul it, and adjudge such Act to be void," a sentence that
provided grist for those who wished to restrict legislative authority. 61
A dozen years after Bonham's Case, Coke was in the Commons advo-
cating 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 sepa-
rate 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 modem 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.7 Even when the Crown (most-
ly through the common law courts) stripped landholders of many feudal
privileges,72 land still represented wealth and symbolized political indepen-
68. 77 Eng. Rep. at 652.
69. Harold J. Cook, "Against Common Right and Reason: The College of Physicians
versus Dr. Thomas Bonham," American Journalof Legal History 29 (1985): 301-22.
70. See John U. Lewis, "Sir Edward Coke (1552-1633): His Theory of 'Artificial Rea-
son' as a Context for Modem Basic Legal Theory," Law Quarterly Review 84 (1968): 330-
42 (arguing that "Coke thought that the powers of Parliament were, or should be, identical-
ly 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 HistoricalJournal 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: Cam-
bridge University Press, 1976).
dence 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 modem Europe, only natural
or naturalized subjects could hold land in each kingdom. Coke listed sev-
eral reasons for this restriction. First, aliens might discover "the secrets of
the realm." Second, "[tihe 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 free-
holders 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 im-
migrants 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 ef-
fort 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
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 Agrar-
ian 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 ParliamentaryHistory, 1:1082-83.
statute allowing a plaintiff "recently disseised" of land to sue in the com-

mon law courts for repossession.7 7 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 commis-
sioned a special court composed of the Lord Chancellor and all the judges
from the three common law courts (Exchequer, King's Bench, and Com-
mon Pleas) to hear both cases.78 Everyone agreed that an alien "can have
no real or personal action for or concerning land"7 9 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 author-
itative because he published it (and only it) in his Reports, which guaran-
teed its influence at a time when most opinions went unrecorded.8" The
court rejected the Englishmen's argument that a subject was bound to the
king's political rather than natural person.8 2 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.8 3 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
84
natural subjection, by the law of nature ....
77. See J. H. Baker, The Law's Two Bodies: Some EvidentialProblems in English Legal
History (Oxford: Oxford University Press, 2001), 52-53.
78. The Stuart kings commissioned this special court-"the Exchequer Chamber"-sever-
al 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 Ire-
land: 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 encour-
age "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 Chancel-
lor 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 Medi-
aeval PoliticalTheology (Princeton: Princeton University Press, 1957).
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," Journalof Legal
History 17 (1996): 155-71.
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 En-
gland. 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 natu-
rally upon birth within the king's territory from parents who were under
the king's obedience.8 6 A feudal logic lay behind this birthright: property
was the root of sovereignty and legal authority; it provided the bond be-
tween lord and tenant, king and subject. Reciprocally, the king was bound
to protect the property claims of his subjects on his land. 7 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 com-
mon law rights in England. But the court did not hold that these subjects
enjoyed English liberties in those other dominions. The king's "mandato-
ry and remedial writs," which included all common law writs, did not run
to any land outside the realm of England.8" These remedial writs "cannot
by any means be extended into any other kingdom, country, or nation,

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 ante-
nati 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 natu-
ralization to have effect throughout the empire upon Board of Trade review. Kettner, Devel-
opment 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.
[even] though it be under the king's actual ligeance and obedience."8 9 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 per-
son. "are not tied to any place but do follow subjection and ligeance, in
what country or nation soever the subject is."'9 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 in-
cluded instructions to English ambassadors abroad and to foreign kings
asking them to protect the person and proloerty of such ambassadors. These
extraterritorial writs reflected European customs regarding relationships
between kingdoms. which just then was being denominated the law of
nations." 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 roy-
al 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 privi-
leges. 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.9 - But the doctrine of ligeance was radical
for its time because it encouraged mobility throughout the king's compos-
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 Inter-
national Order from Grotius to Kant (New York: Oxford University Press, 1999), with Ant-
ony 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 Mich-
igan 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.
ite monarchy. Here is the British aspect of Calvin's Case: a natural sub-
ject 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 Scot-
land 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 con-
ception of law, no one in the early seventeenth century interpreted Calvin's
Case to mean that the common law and liberties of Englishmen were ex-
ported to the king's other dominions.
However, Coke added obiterdicta to elaborate the decision's ramifications,
although these did not constitute the reasons for the decision of the individ-
ual judge, let alone of the whole court.93 In these dicta he sketched the out-
lines 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.
Il. 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 Ed-
ward Coke and convicted; his coterie lost the charter, and the territory re-
verted 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,
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 En-
glish Expansion, 1558-1625 (Chapel Hill: University of North Carolina Press, 1943).
95. See Bowen, The Lion and the Throne, 190-217, 343.
comprising shareholders from both groups. The charter granted the com-
pany 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 settled96
by both "Scots and English," an offshoot of the newly united kingdoms.
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 "Span-
ish heart,"' l 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,
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
Discoursesof Conquest (New York: Oxford University Press, 1990), 208-12. See also Da-
vid T. Konig, "'Dale's Law' and the Non-Common Law Origins of Criminal Justice in Vir-
ginia," 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 Transformationof Early American History: Society, Authority, and Ideology,
ed. James A. Henretta, Michael Kammen, and Stanley N. Katz (New York: Knopf, 1991),
70-92.
2
for example, mention North America. 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 else-
where in preparation for careers in law, enterprise, or royal administra-
tion. ' 3 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 "[tihe case brought to the cra-
dle of a new Empire the archives of the old."'"
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 cham-
pioned the "artificial reason" of the legal community above the natural rea-
son of the individual.0 5 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 de-
cide this question."I' ° 6 Those precedents concerned the old Norman prov-
inces, the Channel Islands, and Ireland. 1°7 Here as elsewhere, Coke engaged
in a low level of rationalization, which characterized most attempts to un-
102. Attorney General Francis Bacon referred to the Indies once in argument. State Tri-
als, 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 Parlia-
mentary History, 1:1087.
103. It remained the starting point for conceptualizing the empire into the twentieth cen-
tury. 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 Councilfrom the American Plantations (New York: Colum-
bia University Press, 1950), xii-lxi.
derstand the empire for centuries. "'"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."' it remained the most sophisti-
cated legal interpretation of the British Empire for at least two centuries.
Coke's "map" of the empire's jurisdictions was authoritative. New discov-
eries had to be fitted within its medieval dimensions.
Yet Coke's custom was dynamic rather than static, and his method per-
mitted 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." " 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 abso-
lutism but against any distant government.
Second, Coke categorized all overseas territories as either inherited or
conquered, a distinction that derived from Roman law."' Inherited lands,
like Scotland, enjoyed more legal autonomy than those obtained through
conquest. In those obtained by descent, the king "cannot change [the] laws
of himself, without consent of parliament." Until he changed the laws of
an inherited dominion with "consent of parliament," the laws extant before
the inheritance remained in force." 2
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 in-
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 Parliamentof 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 Univer-
sity Press, 1992), 1-22.
111. The doctrine of conquest was "among the accepted leading ideas of European civi-
lization." Donald Sutherland, "Conquest and Law," Studia Gratiana 15 (1972): 33-5 1. See
also Hans S. Pawlisch, "Sir John Davies, the Ancient Constitution and Civil Law," Histor-
ical Journal23 (1980): 689-702.
112. State Trials, 2:638-39, 77 Eng. Rep. at 398,
fidel 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 con-
trast, 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 succeed-
ing king could alter the same without parliament."1' 14 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. 1 5 In par-
ticular, what Coke meant by the "consent of parliament" has been contro-
verted 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." 6 But
Barbara A. Black, building upon Charles H. Mcllwain's constitutional anal-
ysis 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." 7 "Coke's position,"
11 8
Black argues, "was that of a parliament-man, not a Parliament-man." If
so, the Revolutionaries rested on good authority.
A number of inferences are necessary to conclude either that Coke envi-
sioned that the king would govern his colonies only through a local parlia-
113. State Trials, 638; 77 Eng. Rep. at 398. Coke adhered to a harsher version of dispos-
session 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 PoliticalThe-
ory in Early-Modem 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, Parliamentand the British Empire, 1-39; Julius Goebel Jr., "Book
Review: Parliamentand the British Empire,by Robert L. Schuyler," Columbia Law Review
30 (1930): 273-76.
117. Black, "The Case for the Colonies"; Mcllwain, The American Revolution: A Con-
stitutionalInterpretation.
118. Black, "The Case for the Colonies," 1181. See also Jack P. Greene, Peripheriesand
Center: An Interpretationof British-American Constitutional Development, 1607-1788
(Athens: University of Georgia Press, 1986), 23-24.
ment or that he could govern without local consent, through the metropol-
itan 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 alterna-
tively 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."1 9 Other conquered dominions, like
the Channel Islands and the Isle of Man, were similarly constrained. 2 0
Some historians explain these anomalies as the legacy of an earlier, con-
ciliar 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 con-
ciliar 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 par-
liamentary 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 re-
stricted 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 Par-
liament. 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 equiv-
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 metro-
pole, 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,
Parliamentsand 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. Mcllwain believed that the principle of parliamentary suprem-
acy, which emerged after 1688, was a metropolitan doctrine only, while Schuyler maintained
that it extended throughout the empire. Mcllwain, American Revolution, 10-11; Schuyler,
Parliamentand the British Empire, 25-26.
ocation, or lack of specificity, reflected the legal pluralism of early mod-

em Britain. Royal governance through a local parliament, the metropoli-
tan 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 Scot-
land), and that the same was true in conquered lands where the king intro-
duced English law (such as Ireland), he probably envisioned areas of gover-
nance not affecting native laws where the king could govern without local
consent and with or without the metropolitan Parliament. In fact, this ap-
proximates the imperial modus vivendi that developed over the next cen-
tury. 122 Here as elsewhere, Coke was content to list the precedents for par-
liamentary jurisdiction overseas rather than build a theory justifying it,
guiding its exercise, or treating the examples as exceptions. Consequent-
ly, the historiographical problem of parliamentary jurisdiction abroad re-
mains 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 over-
seas and no mechanism for settling it as constitutional or not. Early mod-
em England was a constitutional society; that is why Coke and his gener-
ation 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 con-
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 ConstitutionalHisto-
ry of the American Revolution: The Authority to Legislate (Madison: University of Wiscon-
sin Press, 1991), 32; Reid, The ConstitutionalHistory 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, Peripheriesand Center: Constitutional
Developments in the Extended Politiesof the British Empire andAmerica, 1607-1788 (Ath-
ens: University of Georgia Press, 1986), 88.
123. Harvey Wheeler, "Calvin's Case (1608) and the Mcllwain-Schuyler Debate," Amer-
ican HistoricalReview 61 (1955-56): 597.
124. For these domestic struggles in the years preceding the American Revolution, see
Margaret M. Spector, The American Departmentof the British Government, 1768-1782 (New
York: Columbia University Press, 1940).
cerned 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 formu-
lation of Calvin's Case, Coke's paragraph on the integrity of the legal re-
gimes of inherited and conquered Christian dominions seemed to counsel
the English king to respect Scottish law and political institutions. Howev-
er, 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 con-
stitution. 25 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 En-
gland's constitution. Because they envisioned England as an importer rath-
er 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, con-
quered Christian land, he was pleading in the alternative to support the
claim that England enjoyed an immemorial legal order. This order predat-
ed 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 "an-
cient 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 sur-
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 dis-
tinction 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
vival 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. 29 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 when-
ever Englishmen traveled to his non-English dominions. The former meant
that emigrant Englishmen should be able to hold property in the same ten-
ures 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 de-
scent or Christian lands got by conquest, rule with the "consent of parlia-
ment." 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
did not. In the eighteenth century Lord Mansfield rejected the distinction as "absurd" and a
product of "the mad enthusiasm of the crusades." Campbellv. 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 controver-
sial 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, Par-
liament and the British Empire, 64-67, 82-83, 87, 99-100.
130. The first were Barbadian royalists during the Civil War. Schuyler, Parliamentand
the British Empire, 106-16.
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 king-
dom 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." '' 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
32
were remedial.1
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 colo-
nial courts along the lines of his English common law courts to adminis-
ter 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 er-
ror.1 33 In practice, lawyers and judges in those local courts gradually rep-
licated many common law rules and procedures. 3 4 The right to hold prop-
erty by common law tenure-the "marrow of English law" contained in
Littleton's Tenures and glossed in Coke's FirstInstitute-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 juris-
dictional to a substantive understanding of the common law. Again, Coke

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 ProvincialNew York, 1664-1776 (forthcoming).
wrote of emigrants' ability to "maintain any real action"; he did not write
of a transcendent common law. However, he linked "real actions" and "priv-
ileges and benefits" in the same sentence. Syntactically and logically, rem-
edy still preceded right, but the remedy was being liberated from the ju-
risdiction 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 divi-
dends, with individual property tenures along common law lines. 136 Prop-
erty rules mimicking the common law were good for business. They attract-
ed 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 tra-
ditional land regime. 37 In many colonies, those derived from conquered 138
non-Christian as well as Christian lands, this too is what developed.
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 nomi-
nate a minister for a church office, ever migrated to North America. 13 9
Others, like the right to devise property by will, emerged gradually but are
row taken for granted, even naturalized. 140 These rights are so ingrained
135. See also Daniel J. Hulsebosch, "Writs to Rights: 'Navigability' and the Transforma-
tion 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 Journalof Le-
gal 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 InsularCases 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, HistoricalFoundations,2-3, 119-
22. Cf. Edward J. McCaffrey, "The Uneasy Case for Wealth Transfer Taxation," Yale Law
The Ancient Constitutionand the Expanding Empire
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 privi-
leges vindicable in the king's courts, and then spread across oceans with
the early modem 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 jurisdic-
tion.14 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. 43 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
Journal 104 (1994): 283-365; Richard A. Epstein, Takings: PrivateProperty and the Pow-
er 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 exer-
cise 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 "[tihe life of the common law
has been in the abuse of its elementary ideas." Milsom, HistoricalFoundations,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."
national repository of constitutional rights. 144 In the didactic prefaces to his

Reports, Coke frequently used property law metaphors to explain the pur-
pose of his publishing project: "the ancient and excellent laws of England
are the birthright, and the most ancient and best inheritance that the sub-
jects 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." 4 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."1 46 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--circu-
147
lated through the empire, and wrought consequences he never intended.
Coke believed that there should be a legal distinction between the con-
quered aborigines and English settlers who migrated to that conquered col-
ony. 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 stem new policy toward the Indians, which approx-
imated conquest. 48 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
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: Uni-
versity of Wisconsin Press, 1986), 103-13; Jack N. Rakove, DeclaringRights: A BriefHis-
tory with Documents (Boston: Bedford Books, 1998), 20.
148. See Williams, "English Conquest of Virginia," 193-225. See generally Francis Jen-
nings, 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.
the late seventeenth century, they carved out a third category of royal terri-
tory: lands obtained by plantation or "settlement."
The concept of settlement appeared rather suddenly in English law. It
drew on the civilian principle of res nullius5 ° 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."'' 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. 52 Today many historians assume that the colo-
nies were settled plantations rather than conquered lands. 5 3 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
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 ofAll 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 (Cam-
bridge: 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 ofjudicial 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 applica-
tion was not at all clear." Frederick Madden with David Fieldhouse, eds., Select Documents
on the ConstitutionalHistory of the British Empire and Commonwealth System (Westport,
Conn.: Greenwood Press, 1985), 2:190.
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?"'' 54 The answer was no: nat-
uralization 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 con-
tradiction that the inferior, which is civilly the lesser power, should com-
pel the superior, which is the greater power."' 5 5 Again, Ireland was "a do-
minion belonging to the Crown of England"; 5 6 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 En-
gland except through the English Parliament, then he could not do so in-
directly through his Irish government. 57 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 in-
herit in England, who could not otherwise inherit. ." ,, 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 administra-
tors, though not successfully. Interestingly, colonial advocates usually in-
voked settlement to argue that parliamentarystatutes rather than unenact-
ed 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
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 Mys-
teries and Solutions in Irish Legal History,ed. D. S. Greer and N. M. Dawson (Dublin: Four
Courts Press, 2001), 73-95.
155. 124 Eng. Rep. at 1084.
156. Ibid.
157. Ibid., 1076.
158. Ibid., 1074 (emphasis added).
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.15 9 The Jamaican
case involved an English statute forbidding the sale of offices. The plain-
tiff's attorney conceded that Jamaica had been conquered from the Span-
ish. 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 alter-
ation," 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."'' 61 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."' 62 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.'1 63
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 rec-
ognizing 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
159. Blankard v. Galdy, 87 Eng. Rep. 356 (1691) (holding that an English statute forbid-
ding the sale of offices did not apply to Jamaica).
160. 87 Eng. Rep. at 361-62.
161. Ibid., 361.
162. Dutton v. Howell, I Eng. Rep. 17, 19 (House of Lords, 1694) (emphasis in the orig-
inal).
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 En-
glish Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992),
2:1221-40.
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 val-
id 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. 169Nevertheless, they circulated widely in the Atlantic world. The
latter opinion, for example, was first published in the 1740s in a collec-
tion 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.'71
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
165. 91 Eng. Rep. at 566-67.

166. Mr. West's Opinion, Opinions of Eminent Lawyers on Various Points of English Ju-
risprudence (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, 114-3 1.
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.
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."''1 2 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 con-
quered lands by its prerogative and without concurrence of any represen-
tative body, it could tax settlements only through a parliament. But Mans-
field did not require that it be a local parliament, and his support of British
parliamentary regulation of all the American colonies demonstrates that for
174
him any parliament would suffice.
These English sources show that the third category of settlement plan-
tations was established in the repertoire of legal argument after the Resto-
ration. However, no institution of the imperial government ever decided that
any American colony fitted into that category. 175 Most early modern En-
glish jurists, such as Chief Justices Vaughan, Holt, and Blackstone, cate-
gorized the American colonies as conquered lands; native populations in-
habited 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 be-
fore colonization as well as some after that date.
Similar to the emergent category of settlement colonies was the com-
mon charter guarantee of the liberties of Englishmen. Most colonial char-
ters 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 Domin-
172. William Blackstone, Commentaries on the Laws of England,4 vols. (1765-69; Ox-
ford: 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 ParliamentaryHistory of
England,from the EarliestPeriodto 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.
ions, 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. '1 76 Some
eighteenth-century colonists read this liberties clause as a funnel for the
emergent English constitutional canon, a promise that colonists would 177
enjoy all the liberties and privileges abroad that Englishmen had at home.
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 treat-
ment of all the king's natural subjects within England, regardless of birth-
place. The same may have been true for other dominions too. As such, the
liberties clause could have functioned like the modem American right to
travel and guaranteed subjects of the English king the same rights as na-
tive subjects in any dominion.' 78 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 preemp-
tive 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 liber-
ties granted in his native dominion A. In fact, while most colonies devel-
176. First Charter to Virginia (1606), in The Federal and State Constitutions, Colonial
Charters,and Other OrganicLaws of... the United States ofAmerica, ed. Francis N. Thorpe
(Washington, D.C., 1909), 7:3788. Gilbert's charter is most explicit: settlers and their chil-
dren 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 sim-
ilar 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 Cha-
fee Jr., "Colonial Courts and the Common Law," in Essays in the History of Early Ameri-
can 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).
oped 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. 80
Some historians interpret these clauses to mean that colonies grants had
to operate pursuant to recognizable forms of English law, perhaps the com-
mon law.18 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. 8 '
The constitutional content of "repugnancy" was never clear because the
council did not explain why it invalidated colonial statutes, and the prac-
tice generated little coherent doctrine. It did not convey English law to the
colonists.' 83
There is a final irony in Coke's attempt to relate the English constitu-
tion 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. 18 4 All of these were defined as violations of the rights
of Englishmen. The petition was presented as a declaration of fundamen-
tals, but like most such instruments was more creative than declaratory.I85
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 poli-
cy of... England." Julius Goebel Jr. and T. Raymond Naughton, Law Enforcement in Co-
lonialNew York: A Study in CriminalProcedure(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 seven-
ty-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.
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. 86 Coke assured the Com-
mons 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."' 87 His response merely confirmed the jurisdiction-
al 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 cloth-
ing, 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 lo-
cal 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
188
of the king's territories, at least it was not in Coke's interest to do so.
His outlook was even more English and less British in that ominous year
than two decades earlier. The English constitution had emerged simulta-
neously 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.18 9
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. 90 The second dimension was more cultural
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 (in-
cluding John Pym) who denied that the colonists enjoyed English rights, see Karen 0. Kup-
perman, "The Beehive as a Model for Colonial Design," in America in European Conscious-
ness, 1493-1750, ed. Karen 0. 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.
than territorial and was captured in the doctrine of settlement: an English-

man (or any Briton) carried English law with him wherever he went. Be-
yond 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 ab-
sence of a unitary law for the empire and why, in the early modem period,
there never was a "Greater Britain" comprising all the settler colonies and
that could inspire, or at least enforce, their loyalty.'19
Jurists in the first British Empire never developed a coherent body of
imperial law or liberties. The empire remained a byzantine network of ter-
ritories, jurisdictions, institutions, and peoples, which hindered the emer-
,gence 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. 92 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 con-
stitutional law and some national private law too. 93 Indeed, Coke's writ-
ings, and the Revolutionary image of him as a firebrand of liberty, contrib-
uted 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
19 1. 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?" Ameri-
can HistoricalReview 104 (1999): 427-45; Eliga H. Gould, "A Virtual Nation: Greater
Britain and the Imperial Legacy of the American Revolution," American HistoricalReview
104 (1999): 476-89. See generally J. G. A. Pocock, "British History: A Plea for a New Sub-
ject," Journalof Modern History 47 (1975): 601-21; Pocock, "The Limits and Divisions of
British History: In Search of an Unknown Subject," American HistoricalReview 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 Experi-
ence 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.
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 Determin-
ing which parts were, where, and why requires intensive local studies of
the colonial legal systems, of which we have few.197 A host of demograph-
ic, 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 be-
cause they were available in Coke's FirstInstitute, 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.
194. See Black, "The Case for the Colonies," 1172 (commenting on Mcllwain'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 (an-
alyzing 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 FirstInstitutes "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 Brit-
ish 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 His-
tory: Cases andMaterials(New York: Oxford University Press, 1991), 23; Stephen Presser
and Jamil Zainaldin, Law and Jurisprudencein 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 Amer-
ican 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).
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 lim-
its 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 roy-
al 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 dis-
course 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 conven-
tional analysis of whether the colonists enjoyed English law and raises the
threshold problem of how the common law became detached from its ter-
ritorial 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 instru-
ments, and became transatlantic currency that could be traded anywhere
199. For postcolonial struggle within and against imperial resources, see Homi K. Bhab-
ha, "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 PostcolonialTheory 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" rela-
tive to the first world of Great Britain and the third of the nonwhite colonies. Alan Lawson,
"Comparative Studies and Post-Colonial Settler Cultures," Australian-CanadianStudies 10
(1992): 153-59; Lawson, "A Cultural Paradigm for the Second World," Australian-Canadi-
an Studies 9 (1991), 68. See also Bill Ashcroft, Gareth Griffiths, and Helen Tiffin, eds., The
Post-ColonialStudies Reader (New York: Routledge, 1995).
English was spoken. 2 1 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 can-
on for their purposes and hid away its less valuable legacies. This juris-
prudence of liberty could be used many ways: imperial and integrative here,
provincial and disintegrative there; liberating in one place and enslaving
202
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 co-
lonial 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 in-
choate imperial jurisprudence of Sir Edward Coke.
201. Harold A. Innis's thesis that printed media travel well across space but lose integri-
ty 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 Integrationof the British
American Community, 1735-1785 (New York: Cambridge University Press, 1995).
202. See Hulsebosch, "Imperia in Imperio"; Morgan, American Slavery/American Freedom.

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One of the great, unrecognized ironies in Anglo-American constitutional

Daniel J. Hulsebosch is an assistant professor at Saint Louis University School of

Law and History Review Fall 2003, Vol. 21, No. 3

troversies. For constitutional questions, at least, it is helpful to view English

of National Biography,vol. 4 (Oxford: Oxford University Press, 1917), 685-700; Hold-

er intended it to operate in the other royal dominions. Coke's bounded

I. Britain's Legal Pluralism and the Constitutionalization

"tempered the tongues" of those who opposed the commission's propos-

41. State Trials, 2:563.

England, permitting foreigners to become citizens weakened a republic and

located in a statute book, code, or treatise. "There be divers lawes within

Eventually, common lawyers succeeded in elevating the common law

63. Bowen, Lion and the Throne, 370-90.

II. Calvin's Case: Reciprocal Subjectship and the

statute allowing a plaintiff "recently disseised" of land to sue in the com-

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

[even] though it be under the king's actual ligeance and obedience."8 9 In

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

Il. Coke's Imperial Constitution: Consent and Property

ocation, or lack of specificity, reflected the legal pluralism of early mod-

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

national repository of constitutional rights. 144 In the didactic prefaces to his

of England do not extend to Virginia, being a conquered country their law

165. 91 Eng. Rep. at 566-67.

than territorial and was captured in the doctrine of settlement: an English-

Conclusion: Coke in the American Legal Mind

Consequently, Coke's work contributed more to the spread of common

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