The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence
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One of the great ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the ‘ancient constitution’ and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related liberties of Englishmen while overseas. The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight. While the ancient constitution was for England, Coke did suggest that central elements of common law culture, such as real property tenures and the right to representative government, might migrate to the king's other dominions. In Calvin's Case, he and the other royal judges held that the king's subjects outside England had access to the common law in the literal sense that they could sue in the English common law courts, but only for subject matter over which those courts had jurisdiction, like land located in England. They could not litigate in the English common law courts over subject matter in royal territories outside England. But Coke did consider the predicament of English subjects who travelled to the colonies and wished to provide them some legal protection, though not the entire constitutional canon. In judicial dicta here and ambiguous statements there, he suggested that some English liberties might travel with Britons outside England and into the king's other territories. Coke, an architect of the gothic English constitution, also sketched the outline of a minimalist imperial constitution. This is not how Americans have viewed Coke, not in the early modern period and not in recent historiography. In American legal culture, Coke is a champion of the common law, constitutional liberty, and judicial review. There is, in short, a myth of Sir Edward Coke, with much historical reality to support it. But that myth also incorporates glosses on Coke's work added in the late seventeenth and eighteenth centuries to resist imperial regulation and that have been confirmed by modern historians. While Coke's focus was on the English nation, his myth became most powerful on the British Empire's periphery. This chapter examines the assumption that Coke believed that his common law jurisprudence extended to the colonies and attempts to recover the original intent, as it were, of the ancient constitution in the mind of one of its framers. A reevaluation of Coke's imperial jurisprudence in its context helps recast that question in terms of how common law culture was packaged for export, how it circulated through the Atlantic world, and how English-speakers drew upon it in concrete controversies. 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. Situating Coke's understanding of the relation between realm and dominions, between English liberties and imperial law, in its early modern context will enable us to approach colonial American legal culture free of anachronism and appreciate its creative eclecticism. Coke was born in 1552 and served as a Member of Parliament, solicitor general, attorney general, chief justice of Common Pleas, and chief justice of King's Bench. He wrote extensively about English law and published most of his works in English, which marked the beginning of vernacular legal literature in England. In addition, his jurisprudence symbolized the establishment of core common law liberties as constitutional liberties. Although Coke's obsessive style has always frustrated critics, he did seek to transform the practices of English law and governance into a system of jurisprudence. He conveyed that jurisprudence to future generations of lawyers in the four-volume Institutes of the Laws of England, the prefaces to eleven volumes of Coke's Reports, and his own published judicial opinions, which figure large in his Reports. Among these ‘leading cases’ was Calvin's Case (1608), which Coke called 'the greatest case that ever was argued in the hall of Westminster' and that remains a cornerstone of the Anglo-American law of citizenship. 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. 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.
Source Publication
The Accession of James I: Historical and Cultural Consequences
Source Editors/Authors
Glenn Burgess, Rowaland Wymer, Jason Lawrence
Publication Date
2006
Recommended Citation
Hulsebosch, Daniel J., "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence" (2006). Faculty Chapters. 909.
https://gretchen.law.nyu.edu/fac-chapt/909
