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USC LAW 200x - 3. The British Constitution in the Colonies

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Professor ErmanLaw in the US Constitution in Global History Class 3This is a course in constitutional history. We begin today with the historythat led to the creation of that constitution. Specifically, we start in England.[Slide 1: England 1600 map.] In 1603, Queen Elizabeth of England died without a lineal heir. As a result,the English crown descended to her cousin, who happened already to be KingJames VI of Scotland. [Slide 2: Image of King James VI of Scotland] Thus, the kingdoms of Scotland and England suddenly shared a single king.The kingdoms nonetheless remained distinct, with each having its ownparliament.King James soon suggested that all Scottish subjects be treated as Englishsubjects and that all English subjects be treated as Scottish subjects.Basically, he wanted to let people from either kingdom move to the other andbe treated as if they had been born there.[Slide 3: Close-up of on England, Scotland, and Ireland in 1600 Map]The English Parliament was wary. King James’s proposal would mean thatpeople subject to the jurisdiction of the Scottish parliament could move toEngland and be subject to the English parliament instead. Ditto withScottish and English courts. The objecting members of parliament wereconcerned with maintaining the national borders between England andScotland. They wanted them to be two nations that happened to share aking, not two kingdoms that had now become oneSome English worried that their new king, who was also the King ofScotland, would attempt to replace English law and liberty with somethingforeign and inferior. In response, they began to lionize English law. Theyspoke of English law as a timeless framework that guaranteed liberty. Theysaid that continental civil law, by contrast, did not do this. This was not true.English law, like all, law, had changed in the past and would change in thefuture. The differences between English law and continental law also weren’tall that large. Instead, the English were inventing a national legal culturethat valued liberty. It remained to be seen if that self-conception wouldbecome reality1Professor ErmanLaw in the US Constitution in Global History Notice that what the English were not trying to do here was export theirliberty and legal culture to Scotland. They sought to protect themselves, notbenefit others[Slide 4: Calvin’s Case.]In 1608, a case known as Calvin’s Case arose in the English courts. The issuein the case was whether a person born after James became King of England(i.e., after 1603) could hold land in England. Calvin would be allowed to holdthe land if he were a natural subject of England. He would not be able tootherwise. The court held that Calvin was a natural subject of Englandbecause he was born after King James became King of England.To understand this case, you have to understand that two metaphorsinvolving the king’s body were central to political theory at the time. Politiesat the time were often described as bodies politic. The king was the head ofthis artificial or corporate body. Thus, James was the head of a Scottish bodypolitic that included the Scottish parliament. He was also the head of aseparate English body politic that included the English parliament. The kingalso had a natural body, just like each of us does. The question in Calvin’sCase was whether Calvin was born a subject of James’s natural body, hence asubject of both England and Scotland. Or whether he was born a subject ofthe king’s artificial body or body politic, and thus a subject of only Scotland.The court decided that Calvin was born a subject of the king’s natural bodyand thus a subject of both England and Scotland. The case also provided a theory of when people became subjects in general. Itheld that birth within the realm and allegiance of the king made one asubject. That meant that if you were born in a kingdom over which the kingexercised authority and you were born owing what we would today callallegiance to the king, you were a subject of the king.[Slide 5: Global map of British Empire from 1660]By 1608, England had already begun occupying land outside of the Britishisles, including in Virginia. As this map from a few decades later shows, theBritish Empire was in 1608 on its way to a situation where the king would bethe nominal head of lots of lands outside of England. Under Calvin’s Case,anyone born in any of these other colonies would also be a subject of England.Prior to Calvin’s Case, the question of who was a subject in the colonies of theking was being settled by statute. This case stopped that process. Instead, itanswered the question by common law. Common law was the law that judges2Professor ErmanLaw in the US Constitution in Global History in what were known as the common law courts declared. The notion was thatthese judges discovered law that had long been recognized and practiced inEngland. But of course they were often inventing novel law as well. Butwhat this meant was that it was judges rather than legislators who wereworking out the details of who was a subject.Note that this meant that inhabitants of Scotland or Virginia could move toEngland and be treated as Englishmen. But it did not mean that they wouldbe treated as Englishmen in Scotland or Virginia. English common-lawcourts had jurisdiction that was limited to particular places. Theirjurisdiction or authority did not extend to the New World. At this point,access to the common law meant access to the common law courts. Therewere rules that those courts enforced, and you got the benefit of those rulesonly if you got into those courts. As a result, when Calvin’s Case was decided,nobody thought that it meant that Virginians got all the same law andliberties of people living in England.[Slide 6: The first and last page comprising of the table in Sir Edward Coke’s Institutes of the Laws of England]To get a sense of what I mean, take a look at this “Table”. It contains 76entries in total. It appears in the Fourth volume of Sir Edward Coke’sInstitutes of the Laws of England. Sir Edward Coke authored Calvin’s case.His


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