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INFIDELS IN ENGLISH LEGAL THOUGHT: CONQUEST, COMMERCE AND SLAVERY IN THE COMMON LAW FROM COKE TO MANSFIELD, 1603–1793
Published online by Cambridge University Press: 23 November 2017
Abstract
English common law reports are dense with ideas. Yet they remain mostly untapped by intellectual historians. This article reveals how intellectual history can engage with law and jurisprudence by following the notion that “infidels” (specifically non-Christian individuals) deserved to receive exceptional treatment within England and across the globe. The starting point is Sir Edward Coke: he suggested that infidels could be conquered and constitutionally nullified, that they could be traded with only at the discretion of the monarch, and he confirmed their incapacity to enjoy full access to the common law. This article uncovers how each of these assertions influenced the development of the imperial constitution in the seventeenth and eighteenth centuries, when it came to war, trade and slavery. Identifying each of the major moves away from Coke's prejudices, this article argues that sometimes common lawyers responded to political change, but at other times anticipated it.
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Footnotes
During the preparation of this paper, I benefited from the critical observations of Professor Paul McHugh and Dr Will Bateman, both antipodean public lawyers of the highest caliber who continue to push me in new directions at Cambridge. And the reviewers sourced by Dr Duncan Kelly for this journal were extraordinarily helpful and inspiring. Responding to their challenging and generous reports made me think more clearly about the history of legal thought.
References
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23 For Francis Bacon's stance see Cobbett's Complete Collection of State Trials (hereafter CST), 33 vols. (London, 1809–26), 2: 591–2, seeing also Bacon's Discourse on the Union of Kingdoms, in Spedding, James, ed., The Letters and Life of Francis Bacon, vol. 3 (London, 1863), 93Google Scholar, which makes the distinction between violent unions and natural unions, whereby, in the former, “the conquering state doth extinguish, extirpate, and expulse any part of the state conquered, which it findeth so contrary as it cannot alter and convert it.” Ellesmere, by no means a Chancellor inclined to disrobe the king of his prerogative, refuted the idea of an absolutist conqueror of Ireland. See CST 2: 681, which aligned him with the position of Yelverton, a judge from the King's Bench, in distinguishing between “an undoubted title made by lawe” and “a doubtfull title wonne by the sword.” For Coke's argument that England and Ireland were separate but unequal dominions, though allowing the Irish as “natural born subjects [to be] capable of and inheritable to laws in England,” see CST 2: 647–8; 7 Coke Reports (hereafter Co. Rep.), 17b, 22b, 23a; The Selected Writings of Sir Edward Coke, ed. Steve Sheppard, vol. 1 (Indianapolis, 2003), 207–8, 218–20.
24 See, however, CST 2: 586–7, 601, 681.
25 CST 2: 645; 7 Co. Rep. 21a; Selected Writings of Sir Edward Coke, 214–15.
26 See Kim, Aliens in Medieval Law, 176–99.
27 CST 2: 638; 7 Co. Rep. 17b; Selected Writings of Sir Edward Coke, 207. The power of life and death derived from Roman political thought; it had been adopted by Bodin in his familial analogies of Book One of the Six Livres de la Republique (1576). For similarities between Bodin and Coke see Price, “Natural Law and Birthright Citizenship,” 73–145.
28 CST 2: 638; 7 Co. Rep. 17b; Selected Writings of Sir Edward Coke, 206–7.
29 “Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness? And what concord hath Christ with Belial? or what part hath he that believeth with an infidel?”: 2 Cor. 6:14–15 (KJV). Belial (
) often connotes the Devil, but translates literally as “without any value.” Misgivings of this kind appear in Exodus, Deuteronomy and other parts of the Old Testament.
30 Of the handful of copies of Machiavelli's Discourses on Levi to be found in the Holkham Hall collection at the Bodleian Library, none contains any marginalia. I was advised to look here by Gavin Loughton, whose lead I gratefully follow, seeing Gavin Loughton, “Coke's Theory of Infidels as ‘Perpetui Inimici’: His Sources” (unpublished paper in my possession); Loughton, “The Extension of English Law following Conquest and Settlement: The Origins of the Colonies Rule” (unpublished M.Phil. thesis, University of Oxford, 2002).
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34 Calendar of State Papers [hereafter CSP] Domestic, 1603–10 (London, 1857), 121; The Second Charter of Virginia (23 May 1609), Yale Avalon Project, at http://avalon.law.yale.edu/subject_menus/17th.asp, accessed 23 March 2017; D. J. B. Trim, “Michelborne, Sir Edward (c.1562–1609),” Oxford Dictionary of National Biography (Oxford, 2004) (hereafter ODNB).
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42 There came before the London court in July of 1622 an enquiry about a land grant to a Mr Barkham, which appeared to have been issued around 1619 on the condition that within two years Barkham should have “compounded” individually with the Powhatan leader, Opechancanough, for access. Against the backdrop of war in the Chesapeake, it had finally become necessary for the corporation to contemplate the origin of its powers to distribute English titles away from England. These powers, it was tabled up in the minutes, were considered not to be founded in any expression of consent by Opechancanough. “[T]his Graunt of Barkhams was held to be verie dishonorable preiudiciall to the Companie in reguard it was lymitted with a Proviso to compound with Opachankano, whereby a Soueraignity in that heathen Infidell was acknowledged, and the Companies Title thereby much infringed.” Minutes of Court (17 July 1622), RVCL 2: 94–5.
43 Virginia Company Archives, Ferrar Papers (Magdalene College, Cambridge), 515; RVCL 2: 478–9, 4: 294–398; Craven, Wesley F., The Virginia Company of London, 1606–1624 (Charlottesville, 1957), 54–8Google Scholar; Discourse of the Old Company (April 1625), National Archives of the United Kingdom, State Papers 1/3/40, 195; Royal Proclamation (13 May 1625), SRP 2: 26–9.
44 Letters Patents (3 April 1661), Charters Granted to the East-India Company from 1601, vol. 1 (hereafter CEIC) (London, 1773), 76, seeing also Letters Patents (9 Aug. 1683), ibid., 120. James Muldoon has argued that we see the distinction in English charters between Christian and non-Christian peoples as mimicry of the custom established by the Alexandrine bulls for Iberian imperial endeavours. See James Muldoon, “Columbus's First Voyage and the Medieval Legal Tradition,” Medievalia et Humanistica 19 (1992), 11–26; Edward Cavanagh, “Charters in the Longue Durée: The Mobility and Applicability of Donative Documents in Europe and America from Edward I to Chief Justice John Marshall,” Comparative Legal History (forthcoming 2018).
45 Phil Stern reveals that the company went to war upon its own authority against Shaista Khan, the nawab of Bengal, and the Ayutthaya Kingdom of Siam, during the late 1680s. See Stern, Company-State, 61–82. When the company's aggression towards English subjects and foreigners became the trigger of passionate pamphlet wars at home, the absence of detailed reflection upon the difference between Christian and non-Christian targets of corporate warfare in critiques otherwise elaborate about the causes and consequences of military conduct is notable. For context see ibid., 142–53. For the expansive new charter of April 1686, which introduced a more universal authorization to defend the company's establishments against all aggressors, see Letters Patents (12 April 1686), CEIC, 138.
46 The Royal Charter for Incorporating the Hudson's Bay Company Granted by His Majesty King Charles the Second, in the twenty-second year of his reign, A.D. 1670 (London, 1816), 16–17; Carr, Select Charters, 191.
47 Crow v. Ramsey (1670) 84 ER 1122; R v. Williamson (1672) 89 ER 31; Witrong v. Blany (1673), 84 ER 789.
48 Proceedings and debates of the House of Commons, in 1620 and 1621, vol. 1 (Oxford, 1766), 318–19; Matthew Hale, The Prerogatives of the King, ed. D. E. C. Yale (London, 1976), 43.
49 Blankard v. Galdy (1693) 91 ER 356.
50 Blankard v. Galdy (1693) 91 ER 357. See also Blankard v. Galdy (1693) 90 ER 1089. At around the same time, the House of Lords was referred on appeal from Barbados the matter of Dutton v. Howell (1693) 1 ER 17, which designated that colony to be “a Plantation, and not a Conquest.” As to the automatic abrogation of infidel laws provided by Coke—which did not therefore apply to Barbados—the Lords declared that “tho’ Coke quotes no Authority for it, yet ’twas agreed, that this might be consonant to Reason.”
51 Smith v. Brown and Cooper (1705) 91 ER 566.
52 Proceedings (1725), Maryland State Archives, SC M 3194, 694–7. Responding, then, to the pushback of Lord Baltimore, the committee resolved upon the preferable designation of a plantation instead of a conquered country, referring “your Lordship . . . to consider . . . the Arguments in the Case of Dutton and Howell” (regardless of that judgment actually finding for a ruthless governor against the local legal authorities in Barbados).
53 Opinion of F. Fane (30 March 1731), CSP America and West Indies, 1731 (London, 1938), 76. This represented a mixture of ideas found in Blankard v. Galdy (1693). For a discussion see Bannister, Jerry, Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699–1713 (Toronto, 2003), 64–103CrossRefGoogle Scholar. Compare, however, Jamaica, by Rex v. Vaughan (1769), 98 ER 308.
54 Anonymous (1722) 24 ER 646; Re: Conquest (1744) 22 ER 188.
55 The new charter of 1726 endorsed the creation of standing armies made up of locals and led by company officers. The charter also endorsed moves “upon just Causes, to invade and destroy” enemies; “to encounter, expel and resist, by Force of Arms, and also to kill, slay and destroy, all such Persons”. These liberties were again confirmed in 1753. See Letters Patents (24 Sept. 1726), 382–3, 388, 394; Letters Patents (26 Jan. 1753), CEIC, 433–4, 440–41, 447–8.
56 29 Geo. II, c. 34.
57 Referred Queries (16 Nov. 1757), British Library, Hardwicke Papers, MS 35917, 22–5; Copy of the Attorney and Solicitor Generals Report, on the Petition of the East India Company (24 Dec. 1757), in Lambert, Sheila, ed., House of Commons Sessional Papers of the Eighteenth Century, vol. 26 (Wilmington, 1975), 6–7Google Scholar; British Library, India Office Records, A/2/7, 99–108. When finally the company's warlike conduct against Indians was contemplated within English courts of law, in Nabob of the Carnatic v. East India Company (1791–3), faith was inconsequential to the otherwise lengthy trial. Those parts of Calvin's Case (1608) pertaining to the conquest of infidels were no longer deemed relevant in the 1790s. By this time, besides, an informal corporate empire had been superseded, with Pitt's India Act (1784), by a more formal system of governing Indian territories with crown oversight. See Nabob of Arcot v. East India Company (1791) 29 ER 544; Nabob of the Carnatic v. East India Company (1791) 30 ER 391; The Nabob of Arcot v. The East India Company (1793) 29 ER 841 (“There is one objection made to the person of the plaintiff in this case, that he is not a Christian: but that objection has been over-ruled these many years”); Nabob of the Carnatic v. East India Company (1793) 30 ER 521. Stat. 24 Geo. III, s. 2, c. 25.
58 “Is it possible,” asked Mansfield with exasperation of Prime Minister Grenville in 1764, “that we have abolished their laws, and customs, and forms of judicature all at once?—a thing never to be attempted or wished. The history of the world do[es]n't furnish an instance of so rash and unjust an act by any conqueror whatsoever: much less by the crown of England, which has always left to the conquered their own laws and usages, with a change only so far as the sovereignty was concerned . . . The fundamental maxims are that a country conquered keeps her own laws, ’till the conqueror expressly gives new.” Mansfield to Grenville (24 Dec. 1764), The Grenville Papers, ed. William James Smith, vol. 2 (London, 1852), 476–8. The classic treatment remains Lawson, Philip, The Imperial Challenge: Quebec and Britain in the Age of the American Revolution (Montreal and Kingston, 1989)Google Scholar.
59 From at least 1759, Mansfield had shown himself to be an eager proponent of the devaluation of dicta from Calvin's Case. For example, Rex v. Cowle (1759) 97 ER 601: “What was dropped about [regarding the constitution of Berwick] in Calvin's case, was a mere obiter opinion, thrown out by way of argument and example. My Lord Coke was very fond of multiplying precedents and authorities; and, in order to illustrate his subject, was apt, besides such authorities as were strictly applicable, to cite other cases which were not applicable to the particular question under his judicial consideration.”
60 Campbell v. Hall (1774), CST 20: 294–5.
61 CST, 20: 308.
62 CST, 20: 323, 325.
63 See Murray, D. J., The West Indies and the Development of Colonial Government, 1801–1834 (Oxford, 1964)Google Scholar. For wider context see Ward, Colonial Self-Government; Benton and Ford, Rage for Order.
64 For the abuse of gubernatorial power in colonial Trinidad see Epstein, James, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (Cambridge, 2012)CrossRefGoogle Scholar.
65 Opinion of Sawyer (16 Nov. 1681), in Forsyth, William, ed., Cases and Opinions on Constitutional Law (London, 1869), 422–3Google Scholar.
66 Royal Proclamation (16 Nov. 1681), in Steele, Robert, ed., A Bibliography of Proclamations of the Tudor and Stuart Sovereigns, vol. 1 (Oxford, 1910), 452Google Scholar.
67 Sands v. Exton (1682) 83 ER 255.
68 Vernon, Thomas, Cases Argued and Adjudged in the High Court of Chancery, vol. 1 (London, 1726), 128Google Scholar.
69 Ibid., 129–30.
70 The Great Case of Monopolies between the East-India Company and Thomas Sandys (1683–5), the best consolidated edition of which appears in CST, 10: 371–554.
71 Ibid., 373, 374, 375, 378: “The profession and preservation of Christianity is of so high a nature, that of itself it supersedes all law: if any law be made against any point of the christian religion, that law is ipso facto void. Why? Because it is made against the prime and original end of government. If the king conquer a christian country, their law continues till it be altered by the King; but if he conquers a pagan country, the law ceases ipso facto to be law; for the law of infidels is contrary and repugnant to the christian religion.”
72 Ibid., 390–91.
73 Ibid., 390: “there would have been proceedings against persons that had traded to Grenada, (of which the Moors lost the dominion within these 200 years) to Barbary, to Turkey, and other infidel places in Asia, Africa, or America, but we never heard or read of any till now.”
74 Ibid., 391–2, 394.
75 Ibid., 402–405. For an alternative and more succinct account of Treby's argument, which only catches the end of Holt's, see East India Company v. Sandys (1683) 90 ER 62.
76 CST, 10: 406.
77 Ibid., 411.
78 Ibid., 419–28.
79 Ibid., 435–6: “In whom is the property? In the corporation. Who buys and sells all? The corporation. Who are the debtors for the money that buys and provides these merchandizes? The body politic, the corporation, the invisible body. Who shall be sued for all these debts? The body politic; sue them as you can, they will either be too great and too rich to contend with, or else in that condition as you know not how or where to have them. An invisible body, subsisting only in intelligentiá legis, a body politic without soul or conscience, as the law says it to be.”
80 Ibid., 440–41: “how fixed those are in their religion they daily take in; and how then can there be confidence in a body politic, which the law says has neither soul nor conscience? What confidence can be reposed in such a person about religion?”
81 Ibid., 442, 445–50.
82 Unconvinced by the need to distinguish between joint-stock and regulated corporations, and less than enamoured of corporations generally, Jeffreys entered a decision that was above all one for the prerogative: foreign trade may be restrained by the king; corporations begin and end in the crown; “the king is absolutely master of war and peace”; and more of that besides. Ibid., 518–54, comparing also The Argument of the Lord Chief Justice of the Court of King's Bench Concerning the Great Case of Monopolies (London, 1689).
83 Paul D. Halliday, “Finch, Heneage, First Earl of Aylesford (1648/9–1719),” ODNB; and Halliday, “Holt, Sir John (1642–1710),” ODNB.
84 The Company of Merchant Adventurers v. Rebow (1686) 87 ER 81, 82.
85 Merchant Adventurers v. Rebow 87 ER 83–4.
86 Two years earlier before the King's Bench, it had been Pollexfen who first made the tactical separation of joint-stock and regulated models in his case against Finch and the East India Company. But this time, when Finch tried the same, it worked completely to Rebow's advantage—for, as Pollexfen told the bench, if the Merchant Adventurers operated on an open model, then they could not possibly maintain any action at law to exclude others on the basis of provisions in letters patent.
87 Merchant Adventurers v. Rebow (1687) 90 ER 340.
88 Pettigrew, William A. and van Cleve, George W., “Parting Companies: The Glorious Revolution, Company Power, and Imperial Mercantilism,” Historical Journal 57/3 (2014), 617–38CrossRefGoogle Scholar.
89 Nightingale & Al’ v. Bridges (1689) 90 ER 1160, and 89 ER 496. The report again appeared to imply, as it had done in Rebow, that prerogative grants contrary to the common law were void without the special authorization of parliament.
90 A clear case history is given before the account of the appeal at Child & Al’ v. Sands (1693) 90 ER 774. See also Sands qui tam v. Child & Al’ (1693) 90 ER 436.
91 Sands v. Child and Lynch (1693) 90 ER 148; also 83 ER 725.
92 For these developments in their wider legal and imperial contexts see van Cleve, George, “Somerset's Case and Its Antecedents in Imperial Perspective,” Law and History Review 24/3 (2006), 601–69CrossRefGoogle Scholar; Holly Brewer, Inheritable Blood: Slavery and Sovereignty in Early America and the British Empire (forthcoming, 2018).
93 Butts v. Penny (1676) 84 ER 1011; Butts v. Penny (1676) 83 ER 518.
94 This point is made better by Wiecek, William M., “Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World,” University of Chicago Law Review 42/1 (1974), 86–146, at 90CrossRefGoogle Scholar.
95 Sir Thomas Grantham's Case (1686) 87 ER 77.
96 Gelly v. Cleve (1694), a note about which exists at Chamberlain v. Harvey (1696) 91 ER 994.
97 Van Cleve, “Somerset's Case,” 616–17. Interestingly, the argument about conversion availing freedom was shown to be an agreeable custom in England because “Mohometan” countries observed similar conventions. Chamberline v. Harvey (1696) 87 ER 601: “And if this be a custom allowed amongst infidels, then baptism in a Christian nation, as this is, should be an immediate enfranchisement to them, and they should thereby acquire the privileges and immunities enjoyed by those of the same religion, and be intitled to the laws of England.”
98 Smith v. Gould (1705) 91 ER 567; Smith v. Gould (1706), 92 ER 338.
99 Jernegan, Marcus W., “Slavery and Conversion in the American Colonies,” American Historical Review 21/3 (1916), 505–7CrossRefGoogle Scholar.
100 When Jamaican legislation of 1712 prevented slaves from providing evidence against “free negroes,” doubts were raised again about what kind of liberty baptism ought to convey there. See Opinion of Northey, Edward (16 April 1717), in Chalmers, George, ed., Opinions of Eminent Lawyers on Various Points of English Jurisprudence (Burlington, 1858), 497–9Google Scholar.
101 See Hoare, Prince, Memoirs of Granville Sharp, Esq. (London, 1820), 5Google Scholar.
102 Pearne v. Lisle (1749) 27 ER 48.
103 Stat. 5 Geo. II, c. 9.
104 Blackstone, Sir William, Commentaries on the Laws of England in Four Books (Philadelphia, 1893), 1: 424Google Scholar.
105 The Case of James Somersett (1772), CST, 20: 1–82. See also Wiecek, “Somerset,” 86–146.
106 CST, 20: 82. For speculation as to what Mansfield might have meant by “positive law” in this context see the discussion at Oldham, English Common Law, 313–18.
107 It is fair to say, as well, that these accomplishments would have been far trickier were it not for the development of the new crown colony model and introduction of the carrot of self-government, both of which were the result of Mansfield's admixture of his own brand of juristic pragmatism with that of Coke's and Holt's in Campbell v. Hall.
108 Wiecek, “Somerset,” 118–41; Morris, Thomas D., Southern Slavery and the Law, 1619–1860 (Chapel Hill, 1996)Google Scholar.
109 Wells v. Williams (1697) 91 ER 46: “for though there be a difference between our religion and theirs, that does not oblige us to be enemies to their persons; they are the creatures of God, and of the same kind as we are, and it would be a sin in us to hurt their persons.” See also Wells v. Williams (1697) 91 ER 1086.
110 David Hume had recently published the first edition of his Essays Moral and Political (1741), wherein he decried the “great Jealousy” of nations with regard to commerce, being the rudiments of a more developed argument in “Jealousy of Trade” (1758) for all nations to adopt “enlarged and benevolent” policies of trade towards each other. See Hume, David, Essays, Moral and Political (Edinburgh, 1741), 180–82 (“Of Liberty and Despotism”)Google Scholar; Hume, Essays and Treatises on Several Subjects (London, 1758), 187–9 (“Of the Jealousy of Trade”).
111 Omychund v. Barker (1744), 26 ER 21, 22–3.
112 Burke, Edmund, “Debates on Evidence” (30 April 1794), in The Writings and Speeches of Edmund Burke, ed. Marshall, P. J. and Todd, William B., vol. 7 (Oxford, 2000), 168–9Google Scholar. See Lieberman, The Province of Legislation Determined, 88–98; Bourke, Empire and Revolution, 820–50.
113 Omichund v. Barker (1744) 125 ER 1312, seeing also 26 E.R. 15. Compare Mary Collins v. Lord Boyd (1755) at Morison's Dictionary of Decisions (Edinburgh, 1909), no 9608.
114 English law was ecumenical before it was agnostic, while atheists waited for the Oaths Act (1888), 51 & 52 Vict., c. 46.